Chapter XVI
A CENTURY AND A QUARTER OF MARRIAGE LEGISLATION IN THE UNITED STATES, 1776-1903
[BIBLIOGRAPHICAL NOTE XVI.--For this chapter all the statutes relating to marriage enacted in fifty-two states and territories since the Revolution have been examined and compared, Hawaii not being included. The session laws and various compilations of statutes consulted are described in the Bibliographical Index, V, and need not here be named in detail.
Hitherto a history of matrimonial legislation in the United States has not appeared; but summaries of the laws of the various states have been made for particular periods. Of these the most important is the accurate digest for 1887-88--the time of compilation--contained in Wright's Report on Marriage and Divorce (Washington, 1889; reprinted without change, 1897). There is also a summary in Stimson, American Statute Law (Boston, 1886), I, 664 ff.; and for the sake of completeness may also be mentioned Vanness, A Digest of the Laws of New York and New England, on Marriage, Dower, Divorce, etc. (Hartford, 1877); Noble, A Compendium and Comparative View of the Thirty-Eight State Laws of Marriage and Divorce (New York, 1882); with the discussion of Cook, "Reform in the Celebration of Marriage," in Atlantic Monthly, LXI (Boston, 1888); Convers, Marriage and Divorce in the United States (Philadelphia, 1889); Snyder, The Geography of Marriage or the Legal Perplexities of Wedlock in the United States (New York, 1889); Ernst, The Law of Married Women in Massachusetts (2d ed., Boston, 1897); and Whitney, Marriage and Divorce (Philadelphia, New York, Boston, and Chicago, 1894). Consult the parliamentary return of Marriage Law and Divorce Law in foreign countries and the colonies (London, 1894); and see also Bibliographical Note XVIII.]
I. THE NEW ENGLAND STATES
The foundation of the marriage law of the United States was laid long before the War of Independence. Some features have since been pruned away, and others have been changed or added; but the existing forms of celebration, the modes of registration, and the leading principles of matrimonial jurisprudence had already been developed. The century has produced a great mass of legislation; but so far as it is new it is concerned largely with administrative details, often of very great importance as determining the effective character of the law.
a) The solemnization.--In New England before the end of the colonial period the religious ceremony had long since been made optional with the lay celebration before a magistrate, which was the only form allowed in the beginning. This system is continued after the Revolution. As elsewhere in the country, the minister and the justice of the peace now share the business between them. The earlier statutes are generally more strict than the later regarding the place of residence and the territorial jurisdiction of the persons authorized to celebrate matrimony. For example, by the Massachusetts act of 1786 any justice of the peace may solemnize lawful wedlock within his own county; while a minister of the gospel, if "stated and ordained," may act only in the "town, district, parish, or plantation where he resides," provided one of the persons lives there too. If a place be destitute of a minister of any denomination, then a neighboring clergyman of the same society may serve; but only in the town or district where the bride or bridegroom dwells.[1117] In 1821 such ordained and stated minister, although living outside of the district over which he is settled, may conduct the ceremony at his own place of residence or at that of either of the persons, provided one or both of them is a member of his congregation. If there be no such minister in the place, then the couple desiring to be married may go to any other clergyman in the commonwealth, who in such case is authorized to act.[1118] All previous laws on the subject are repealed in 1834, when a new statute empowers the minister or justice, each in his own place of residence or in that of either of the persons, to perform the ceremony, if at least one of them lives in his official district.[1119] The present law is still broader in its terms. A marriage may now be solemnized in any place within the commonwealth by Jewish rabbis duly accredited; Friends according to their rites; any minister of the gospel, ordained according to the usage of his denomination, who resides in the commonwealth and continues to perform the functions of his office; or, until a few years ago, by any justice of the peace.[1120] By the act of May 23, 1899, an important change is made. Henceforth no justice of the peace may solemnize a marriage unless he also holds the office of city or town clerk, city registrar, clerk of a court, or that of assistant in either case; or "unless he shall have been specially designated by the governor." The latter may at his discretion name justices of the peace "who may solemnize marriages in the city or town in which they severally reside." Each place is to have at least one such designated magistrate; but otherwise the number is not to exceed one for every five thousand of its inhabitants. No justice may act without a certificate of designation, which the governor is authorized to revoke whenever he thinks fit; and every year in January the secretary of the commonwealth is required to send to the respective clerks or registrars a list of the justices to which authority is thus granted.[1121] However, by the Massachusetts law is prescribed the wise, though unique, condition that the ceremony may be conducted only by a person who is able to read and write the English tongue.[1122]
[Footnote 1117: Laws of the Com. of Mass., 1780-1816, I, 321.]
[Footnote 1118: Act of Feb. 12, 1821: Laws of the Com. of Mass. (1821), 507. This somewhat extends the provisions of the act of Feb. 20, 1818: ibid. (1818), 550.]
[Footnote 1119: Act of April 1, 1834: Laws of the Com. of Mass. (1834), 252-57.]
[Footnote 1120: Pub. Stat. (1882), 811. The law has remained substantially the same since 1835: see Rev. Stat. (1836), 477; Supp. to Gen. Stat., 1860-1872, I, 540.]
[Footnote 1121: Acts and Resolves of Mass. (1899), 379.]
[Footnote 1122: Act of April 22, 1896: Acts and Resolves, 257. This statute further declares that "no rabbi of the Israelitish faith shall solemnize marriage until he has filed with the clerk or registrar of the town or city where he resides a certificate of the establishment of the synagogue of which he is rabbi, and of the date of his appointment thereto, and of the term of his engagement."--Ibid., 257. Cf. Rev. Laws (1902), II, 1349-50, with somewhat different wording.]
The course of legislation in the other states has been much the same as in Massachusetts previous to 1899. In all of them throughout the century, except in Rhode Island, justices of the peace in their respective counties have had authority to solemnize marriages. In that commonwealth any justice of the supreme court may now act,[1123] as earlier could the assistants, justices of the peace, and justices of the courts of common pleas.[1124] For over fifty years the judges of the county and higher courts in Connecticut have had the same power;[1125] and so during the assumption period had the councilors, judges, and even the governor and deputy governor, in Vermont.[1126] But in that state, after the admission to the Union, the justice of the peace has always been the only lay officer empowered to conduct the ceremony.
[Footnote 1123: Also the wardens of the town of New Shoreham: Pub. Statutes (1882), 416; Gen. Laws (1896), 621. The justice has power in any town of the state.]
[Footnote 1124: Pub. Laws of R. I. (1798), 481-83; ibid. (1844), 267. By this date the justice of the peace had ceased to act.]
[Footnote 1125: Revised Stat. (1849), 273; Stat. of the State of Conn. (1854), 374, 375; Gen. Stat. (1875), 186; ibid. (1887), 609; ibid. (1902), 1086.]
[Footnote 1126: SLADE, State Papers, 292, 484. Cf. Laws of the State of Vermont (1798), 330.]
The law governing the ecclesiastical celebration has been a matter of slower growth and of much experimentation. That of Massachusetts has already been described. The New Hampshire statute of 1791 provides that marriage may be celebrated by any "ordained minister" in the county where he is settled or has his permanent residence.[1127] For many years thereafter no change was made in that requirement.[1128] But in 1833 every resident "ordained minister," if in "regular standing" with his denomination, is authorized to act throughout the state, after causing the "credentials of his ordination to be recorded in the office of the clerk of common pleas, in the county where he shall solemnize any marriage."[1129] The present law is the same in substance, except that the filing of credentials is not mentioned. A non-resident minister, similarly qualified, may now officiate anywhere in the state, on receiving a commission from the governor acting on the advice of the council; and within his own parish, when having a pastoral charge wholly or partly within the state.[1130] Authority in the state to join persons in wedlock is granted to "settled" or "ordained" ministers or elders of the leading churches by the Rhode Island laws of 1798;[1131] to the ministers or elders of any religious denomination who may be "domiciled" in the state, by the revision of 1844;[1132] and by the present law the same elder or minister may obtain a license to join persons in marriage, when he shall have registered his residence, the name of the parish with which he was last "associated, if any, and the name of the religious denomination to which he belongs, in the office of the town clerk of the town in which he resides ... in a book to be provided for that purpose," and "shall have subscribed his name thereto."[1133]
[Footnote 1127: Act of Feb. 15, 1791: _Laws of the State of N. H._ (1797), 295, 296.]
[Footnote 1128: Cf. Const. and Laws (1805), 296; _Laws of the State_ (1815), 350, 351; ibid. (1830) 172-74.]
[Footnote 1129: Laws of N. H. (1833), 88.]
[Footnote 1130: Gen. Laws (1878), 428; Pub. Stat. (1891), 494; ibid. (1900), 589.]
[Footnote 1131: Pub. Laws (1798), 481-83; same provision, ibid. (1822), 371.]
[Footnote 1132: Ibid. (1844), 267.]
[Footnote 1133: Gen. Laws (1896), 621. Cf. Pub. Stat. (1882), 416.]
By the first laws of Maine like authority, in the counties where they dwell, is conferred upon ordained ministers, who shall be duly appointed and licensed during pleasure by the governor with the advice and consent of the council; provided either of the persons resides in the same county.[1134] In 1828 this restriction is removed; and the ministers of any denomination of Christians may be so commissioned for counties other than those in which they dwell.[1135] The law has since taken a different form. Power is now granted, during the pleasure of the executive, to every ordained minister of the gospel and to every person licensed to preach by an association of ministers, religious seminary, or ecclesiastical body, who shall be duly appointed and commissioned for that purpose by the governor.[1136] Moreover, in this state women, otherwise eligible under the constitution, may in the same way be commissioned to celebrate matrimony.[1137] In Vermont during the assumption period similar authority was granted to "settled" ministers in their respective towns while they continue in the ministry.[1138] The district of the "ordained" minister was extended to the county in 1797.[1139] Three years later, because "irregular itinerant preachers, under pretence of being ordained ministers of the gospel," in remote parts of the county, practiced impositions, and marriages solemnized by them were wholly illegal, it was again restricted to the town;[1140] but the act making this change was itself repealed in 1802.[1141] By a statute of 1806 a minister is required to file credentials of his ordination with the clerk of the town where he shall solemnize any marriage.[1142] But a more liberal provision appears in the revision of 1839, any resident minister of the gospel being then authorized to celebrate wedlock throughout the state.[1143] By the law as it now stands the same power is conferred upon a clergyman, ordained according to the usage of his denomination, who resides in the state, or else "labors statedly therein as a minister or missionary."[1144]
[Footnote 1134: Laws of the State of Maine (1821), I, 341.]
[Footnote 1135: Public Acts (1828), 1157, 1158; _Laws of the State of Maine_ (1831), III, 238-40.]
[Footnote 1136: Revised Statutes of Maine (1884), 516, 517. This provision has long existed: see Acts and Resolves (1876), chap. 110, sec. 2, pp. 78, 79; Revised Stat. (1871), 485; ibid. (1857), 391. Cf. WRIGHT, Report, 53.]
[Footnote 1137: Acts and Resolves (1875), chap. 56, p. 44; Revised Stat. (1884), 517. Cf. 62 Maine Reports, 596.]
[Footnote 1138: SLADE, State Papers, 292, 484.]
[Footnote 1139: Laws of the State of Vt. (1798), 330.]
[Footnote 1140: Act of Nov. 7, 1800: Laws of the State of Vt. (1808), I, 268.]
[Footnote 1141: Ibid., 269.]
[Footnote 1142: Ibid., 272, 273.]
[Footnote 1143: Revised Stat. of 1839 (1840), 319.]
[Footnote 1144: Vermont Stat. (1894), 500.]
Ordained ministers of the "several plantations" of Connecticut, as already seen, in 1694 were first allowed to share with the justices of the peace the function of joining persons in marriage. Their power was restricted to their respective towns in 1702. It was extended to the county in 1783;[1145] and the clergyman is to have authority "while he continues settled in the work of the ministry." In 1820 the word "settled" was dropped. In the revision of 1821 marriages celebrated according to the rites of any religious denomination were declared valid.[1146] Authority to solemnize was granted in 1847 to any clergyman regularly licensed according to the forms and usages of the denomination to which he belongs, and having charge of a society for one year or more.[1147] Finally, since 1855, the same power has been conferred upon all ordained or licensed clergymen of Connecticut or any other state while engaged in the work of the ministry.[1148]
[Footnote 1145: Acts and Laws (1784), 130.]
[Footnote 1146: Pub. Stat. Laws (1821), 316; the same provision, ibid. (1835), 370.]
[Footnote 1147: Pub. Acts (1847), 39.]
[Footnote 1148: Gen. Stat. (1866), 301, note, giving a summary of changes in the law since 1640. Cf. Gen. Stat. (1874), 186; ibid. (1887), 609; ibid. (1902), 1086. See 1 ROOT, 381; 4 Conn. Reports, 134, 209.]
The law of Connecticut still retains the broad provision that marriages celebrated according to the rites of any religious society within the state are valid.[1149] This, of course, includes the Quakers, who in each of the other New England states are expressly permitted to follow their own usages in this regard, as also are the Jews in Rhode Island.[1150] No form of ceremony is anywhere prescribed; nor, except in Rhode Island, are any witnesses required by the statute.[1151] In New Hampshire persons living together and acknowledging each other as husband and wife, and generally reputed to be such for the period of three years or until the death of one of them, shall thereafter be deemed to have been legally married.[1152] Various penalties are prescribed in the different states for unauthorized celebration;[1153] but in Maine, Massachusetts, New Hampshire, Vermont, and Rhode Island it is expressly provided that when a marriage has been solemnized by a person professing to be legally authorized, although not so authorized, its validity shall be unaffected by such lack of authority, if it is valid in other respects, and entered into by the parties or one of them in the belief that they were lawfully wedded.[1154] It is also enacted in Massachusetts, Maine, New Hampshire, and Rhode Island that the validity of a marriage shall not be affected by any omission or informality in entering the intention to marry.[1155]
[Footnote 1149: Gen. Stat. (1887), 609.]
[Footnote 1150: Pub. Stat. of Mass. (1882), 811; Pub. Stat. of N. H. (1891), 494; Gen. Stat. of N. H. (1867), 331; Gen. Laws of R. I. (1896), 622; Vermont Stat. (1894), 500; Revised Stat. of Maine (1884), 516.]
[Footnote 1151: Two witnesses, besides the person solemnizing the marriage, must attend: Gen. Laws of R. I. (1896), 624; Acts and Resolves (1899), 50, 51.]
[Footnote 1152: Pub. Stat. (1900), 590; Gen. Stat. (1867), 332.]
[Footnote 1153: In Massachusetts the penalty is a fine not exceeding $500, or imprisonment in jail or in the house of correction for a term not exceeding one year, or both: Act of April 22, 1896: Acts and Resolves (1896), 257; in Maine it is $1,000, or not less than five years' imprisonment: Rev. Stat. (1884), 517; in New Hampshire it is not exceeding $300, one-half to the complainant: Pub. Stat. (1891), 494; Gen. Laws (1878), 429; in Vermont, not less than six months' imprisonment or a fine of from $100 to $300; in Connecticut, not to exceed $500, or six months' imprisonment: Gen. Stat. (1887), 348; in Rhode Island the fine is $500: Gen. Laws (1896), 625.]
[Footnote 1154: Pub. Stat. of Mass. (1882), 811; _Revised Stat. of Maine_ (1884), 517; Pub. Stat. of N. H. (1891), 494; Vermont Stat. (1894), 502; Gen. Laws of R. I. (1896), 625.]
[Footnote 1155: Pub. Stat. of Mass. (1882), 811; _Rev. Laws of Mass._ (1902), II, 1351; Rev. Stat. of Maine (1884), 517; _Pub. Stat. of N. H._ (1891), 494; Gen. Laws of R. I. (1896), 625.]
b) Forbidden degrees: void and voidable marriages.--In none of these states is any definition of marriage laid down in the statutes; but in effect matrimony is treated as a relation partaking of the nature of both status and contract.[1156] The age of valid consent to marriage--not to be confused with the so-called "age of consent" under the criminal laws enacted to protect a child from legally agreeing to its own ruin[1157]--is prescribed only in New Hampshire, where it is fourteen for males and thirteen for females.[1158] Elsewhere in New England the common-law rule of fourteen for boys and twelve for girls probably obtains. On the other hand, in all these states, except New Hampshire, the age below which parental consent is necessary for a legal contract is named in the statute. For males it is everywhere set at twenty-one years. For females it is eighteen years in Maine, Massachusetts, and Vermont; and twenty-one years in Connecticut and Rhode Island. But in Maine and Massachusetts consent is required only when the minor has a parent or guardian living in the commonwealth. The Rhode Island law expressly provides that a license may be issued to a person of over eighteen years when such person has no parent or guardian residing in the state;[1159] and the same is true in Connecticut of a female under age when a selectman of the town where she has last resided six months gives his consent.[1160] Massachusetts has taken wise precaution regarding the marriage of minors below a certain age. By an act of 1894 no town or city clerk is permitted to receive a notice of the intention of marriage of any male under eighteen or any female under sixteen years of age, unless the "judge of probate in each county after due hearing" shall "make an order allowing the marriage under the age specified;" but such order may be issued only when the minor resides in the county where the judge holds court, or when the father, mother, or guardian gives consent.[1161] A law of March 28, 1899, amending the above act, allows the probate judge to make a similar order in case of a person of either sex whose age is alleged to exceed that just specified, but who is unable from any cause to produce an official record of his or her birth, to overcome the reasonable doubt of the town or city clerk or registrar. On receipt of a certified copy of this order such local officer is required to receive the notice of intention and issue a certificate, as in other cases.[1162]
[Footnote 1156: For a digest or tabulation of the statutes of all the states and territories relating to definition, age of consent to marriage, age below which parental consent is required, prohibited degrees, void, voidable, and forbidden marriages, as the law stood in 1887, see WRIGHT, Report, 28-45.]
[Footnote 1157: See chap, xviii, sec. i, b), for some account of the laws governing the "age of consent."]
[Footnote 1158: Pub. Stat. of N. H. (1900), 588.]
[Footnote 1159: Written consent is requisite in Connecticut, Maine, Rhode Island, and Vermont; but it may be either written or verbal in Massachusetts; and in all cases the consent is preliminary to issuance of license: Pub. Stat. of Mass. (1882), 810; Rev. Stat. of Maine (1884), 516; Vermont Stat. (1894), 501; Gen. Stat. of Conn. (1887), 608, 609; ibid. (1902), 1085; Gen. Laws of R. I. (1896), 623; and Acts and Resolves (1899), 49.]
[Footnote 1160: Pub. Acts of Conn. (1895), 474.]
[Footnote 1161: Act of May 18, 1894: Acts and Resolves (1894), 453, 454. See also the provision referred to below, relating to the clandestine marriage of a girl of sixteen secured by abduction.]
[Footnote 1162: Acts and Resolves of Mass. (1899), 160; cf. Revised Laws (1902), II, 1347-49.]
The statutes of all of these states contain a list of kindred by blood or affinity with whom marriage is prohibited. The restrictions, of course, invariably include all persons in the ascending or descending line; and also, as a rule, those related within the third degree of collateral consanguinity.[1163] Only in New Hampshire are first cousins now forbidden to marry;[1164] but throughout New England the inhibition extends to unions between aunts and nephews or uncles and nieces. In Connecticut for a time we find a survival of mediæval prejudice regarding affinity. Marriage with the daughter of a wife's sister or brother was there first permitted in 1750.[1165] But it was not until 1793 that the prohibition of wedlock with a deceased wife's sister was dropped;[1166] while, curiously enough, it was retained with respect to a deceased brother's wife until 1816.[1167] By the existing law of all these states marriage with a step-parent is forbidden; and in them all, save Connecticut, a person may not, with impunity, wed a father-in-law or a mother-in-law. Marriage within the forbidden degrees is everywhere void;[1168] the children illegitimate, and the offenders liable to severe penalties.[1169] In Connecticut until some years after the beginning of the last century, just as in old colonial days, offenders against the law of prohibited degrees were "set upon the gallows" and condemned to wear the "scarlet letter." The statute of that state still required the adulterer to carry the halter round his neck during life;[1170] and similar penalties were yet prescribed in some other New England commonwealths.[1171]
[Footnote 1163: SWIFT, System of the Laws of Conn. (1795), I, 186, 187.]
[Footnote 1164: Pub. Stat. (1900), 588. Cf. WRIGHT, Report, 34.]
[Footnote 1165: Acts and Laws (1750), 144.]
[Footnote 1166: Pub. Stat. Laws (1808), I, 478, 479 n. 4.]
[Footnote 1167: The law forbidding such unions was repealed in May, 1816: Pub. Stat. Laws (1816), 261.]
[Footnote 1168: In Vermont, Connecticut, and Rhode Island such unions are void; in the other three states they are both void and incestuous; but in Vermont and Massachusetts they are void only when solemnized in the state; while in all the issue is illegitimate: Pub. Stat. of N. H. (1891), 493; Pub. Stat. of Mass. (1882), 808, 809, 1166; Gen. Laws of R. I. (1896), 621, 1000; Vermont Stat. (1894), 500, 505; Gen. Stat. of Conn. (1902), 1085; Rev. Stat. of Maine (1884), 520, 903.]
Marriages may also be void or voidable on grounds other than the forbidden degrees. Such grounds are want of lawful age of consent, in Maine, Vermont, and Massachusetts;[1172] insanity or idiocy, in those same states and in Rhode Island;[1173] physical incapacity, fraud, or violence, in Vermont;[1174] and bigamy everywhere except in Connecticut where the statute is silent.[1175] In Maine[1176]--as formerly in Rhode Island[1177]--a marriage between a white person and a negro, Indian, or mulatto is void without legal process. Until 1843 Massachusetts had a similar law; and its repeal at that time seems to have been preceded for several years by much popular interest and discussion. Petitions for and against the repeal, numerously signed, were presented to the legislature. These were referred to committees, and several formal reports thereon were made. One of them, earnestly favoring the abrogation of the existing law, alleges that the petitions considered were in the aggregate signed by 3,674 men and 5,032 women. On the other hand, a House report in 1839 strongly opposes the proposed change and treats the petition of many good women of Lynn, Brookfield, Dorchester, and Plymouth with unseemly levity and ridicule.[1178] In Connecticut a marriage attempted to be solemnized by an unauthorized person, whether the parties act in good faith or not, is likewise void without decree.[1179] Furthermore, in Maine, Vermont, and Massachusetts marriages are void when residents, "intending to return, go into another state and have their marriage solemnized with intent to evade the prohibition against incestuous or bigamous marriages, or against marriage with an insane person or idiot, and afterwards return and reside in the home state."[1180]
[Footnote 1169: In Rhode Island marriage or carnal connection between persons so related is punishable by imprisonment of from five to twenty years: Gen. Laws (1896), 1001; in Connecticut, by two to five years' imprisonment: Gen. Stat. (1887), 343; in New Hampshire, by a fine of not exceeding $500 or imprisonment not exceeding three years: Pub. Stat. (1891), 728; in Massachusetts, by confinement in state's prison not exceeding twenty years, or in jail not exceeding three years: Pub. Stat. (1882), 1166; in Maine, one to ten years' imprisonment: Rev. Stat. (1884), 903; in Vermont, confinement in state's prison not more than five years or a fine of not more than one thousand dollars or both: Vermont Stat. (1894), 902, 903.]
[Footnote 1170: Pub. Stat. Laws (1808), 478, 479 n. 4. See chap, xii, sec. iv.]
[Footnote 1171: For adultery the Massachusetts statute prescribed the gallows, whipping, and the scarlet badge; Act of Feb. 17, 1785; Laws of the Com. of Mass., 1780-1816, I, 217; and the gallows with fine, whipping, or imprisonment appears in the early New Hampshire laws: Laws of the State (1794), 294, 295, 285.]
[Footnote 1172: So by implication in Maine: WRIGHT, Report, 39 n. k. Cf. Vermont Stat. (1894), 506 (voidable); Pub. Stat. of Mass. (1882), 809.]
[Footnote 1173: Rev. Stat. of Maine (1884), 515; _Vermont Stat._ (1894), 506 (voidable); Pub. Stat. of Mass. (1882), 809; Gen. Laws of R. I. (1896), 621.]
[Footnote 1174: Vermont Stat. (1894), 506, 507 (voidable).]
[Footnote 1175: Pub. Stat. of N. H. (1891), 495; ibid. (1900), 590; Gen. Laws of R. I. (1896), 621; Vermont Stat. (1894), 505; Rev. Stat. of Me. (1884), 515; _Pub. Stat. of Mass._ (1882), 809.]
[Footnote 1176: Such unions were void without process in Maine: Rev. Stat. (1847), 364; ibid. (1857), 396. They are so now by implication: WRIGHT, Report, 39 n. k.]
[Footnote 1177: So in Rhode Island as late, at any rate, as 1844: Pub. Laws (1844), 268.]
[Footnote 1178: There are copies of three of these reports in the library of Harvard University, one marked "Mass. General Court, No. 46;" a second marked "No. 7, 1841;" and a House report marked "No. 28, 1839." For the repeal, see Acts and Resolves (1843), 40; Supp. to Rev. Stat., 1836-1853, 248.]
[Footnote 1179: Gen. Stat. (1887), 609. The question of good faith is not raised in the statute. Cf. Gen. Stat. (1902), 1086.]
[Footnote 1180: WRIGHT, Report, 28. Cf. Vermont Stat. (1894), 516; Rev. Stat. of Mass. (1836), 476; ibid. (1882), 809; Rev. Laws of Mass. (1902), II, 1346; Rev. Stat. of Maine (1884), 516; ibid. (1857), 391.]
It should also be observed that unions which in some states are void or voidable, in others may be merely prohibited or placed under penalty. The laws of New England in this regard, like those of the other commonwealths, are sometimes confusing and far from uniform in their provisions; and, as Wright suggests, marriages which by the language of the statute appear to be simply forbidden or punishable may nevertheless be construed as void or voidable by the courts.[1181] For when the statute is silent the common law may be in force. Bigamous marriages are so prohibited and punished in Connecticut;[1182] the marriage of a female, procured by force, menace, or duress, in Maine;[1183] and the clandestine marriage of a girl under sixteen years of age, in Massachusetts.[1184] A recent act of Connecticut has set up a bar to matrimony which would be welcomed by the social reformer in other states. Hereafter a couple, either of whom is epileptic, imbecile, or feeble-minded, is forbidden to marry, when the woman is under forty-five years of age; and any selectman or other person aiding in procuring such a union or the marriage of a pauper, when the woman is below that age, is liable to a fine of not less than one thousand dollars or to imprisonment for not less than one year, or to both penalties, as the court may decide.[1185] The laws of Maine also put some check upon the propagation of paupers, the town clerk being forbidden to issue marriage licenses to such persons when the overseers deposit in his office a list of the paupers in their charge.[1186] A statute somewhat similar exists in Vermont.[1187] On the other hand, the New England states afford no example of direct statutory encouragement of wedlock such as exists in a few instances elsewhere in this country; though in all of them, except Rhode Island, indirect encouragement is given through providing that illegitimate children may be legitimized by the marriage of their parents.[1188] Agreements in consideration of marriage are generally void unless made in writing.[1189]
[Footnote 1181: WRIGHT, Report, 35.]
[Footnote 1182: Gen. Stat. (1887), 343; ibid. (1902), 375.]
[Footnote 1183: Rev. Stat. of Me. (1884), 883.]
[Footnote 1184: In case of abduction. This offense is punishable by imprisonment for a term of not more than one year or a fine of not exceeding $1,000: Pub. Stat. (1882), 1165. This law originated in 1852: see the act of May 20, 1852 (Supp. to Rev. Stat., 1836-1853, 852), whose penalties are, however, not the same. Cf. Rev. Laws (1902), II, 1785.]
[Footnote 1185: Pub. Acts of Conn. (1895), 667. This precedent has been followed by Minnesota and Kansas: see p. 480, below.]
[Footnote 1186: Under a penalty of $20 for each offense: _Rev. Stat._ (1884), 516; ibid. (1870), 484; Acts and Resolves (1858), chap, xiv, secs. 2, 3, p. 12.]
[Footnote 1187: In the case of paupers a license may not be issued without the written consent of the selectmen or overseer of the poor of each of the towns where the parties reside, or which are liable for their support: Vermont Stat. (1894), 501.]
[Footnote 1188: In Maine such children are legitimized by marriage; in Connecticut, Massachusetts, New Hampshire, and Vermont, by marriage and acknowledgment of father: WRIGHT, Report, 26, 27. Cf. Pub. Stat. of N. H. (1891), 495; Vermont Stat. (1894), 485; Gen. Stat. of Conn. (1887), 157; Rev. Stat. of Me. (1884), 611; Pub. Stat. of Mass. (1882), 743.]
[Footnote 1189: Gen. Laws of R. I. (1896), 805, 806; _Rev. Stat. of Me._ (1884), 838, 839; Vermont Stat. (1894), 269, 270; Pub. Stat. of N. H. (1891), 596; Gen. Stat. of Conn. (1887), 318, 319.]
c) Certificate and record.--With respect to the notice of intention required by law before a marriage may be solemnized, the century may be divided into two very nearly equal periods. During the first half in all of the New England states proclamation by oral banns in the ancient ecclesiastical manner, or a written notice through posting by the town clerk, is left to the option of the persons; while during the second half the simple license or certificate of the clerk is deemed sufficient. In Connecticut the institution of banns according to the form observed in colonial times was very tenacious. By the statute of 1784 intentions of marriage must either be "sufficiently published in some public Meeting, or Congregation on the Lord's Day, or on some public Fast, Thanksgiving, or Lecture Day in the Town, Parish, or Society where the Parties, or either of them do ordinarily Reside;" or else be "set up in fair Writing upon some Door, or Post of their Meeting-House, or near the same in public View, there to stand, so as it may be read," eight days before the wedding.[1190] This provision--arising in a modification of the act of 1640 made in 1672[1191]--appears in the revision of 1750 and each following edition of the laws until 1854, when it gave place to the modern usage.[1192] The New Hampshire plan is somewhat different. In that state there is a sort of blending in one of the ecclesiastical and lay notices. By the act of 1791 publication is to be made by the clerk; but at three "several public meeting days, or three sabbath days," in the respective towns of the bride and groom.[1193] This plan was retained until 1854.[1194] On the other hand, the Massachusetts law of 1786 is typical in this regard. Intentions must be announced in three public religious meetings, at intervals of three days' distance exclusively, or they must be posted by the town clerk during fourteen days. Should the banns be forbidden and the reasons therefor assigned in writing, the clerk is to "forbear issuing a certificate" until the matter has been examined by two justices of the county, quorum unus. But the person forbidding the banns must cause the question to be determined within seven days, unless the justices certify to the clerk that more time is needed. If the objections to the marriage are not sustained, the complainant must pay the costs of the proceedings, and the clerk shall issue the license. For pulling down or defacing a marriage notice a penalty of twenty shillings or of one hour in the stocks is imposed.[1195] This dual system of notice, with little change in the trial of banns, appears in the statute-book until 1850.[1196] The experience of the other three states is very similar: optional publication in church or by posting being retained until the middle of the century, or in some cases even to a much later time.[1197]
[Footnote 1190: Acts and Laws of Conn. (1784), 135, 136.]
[Footnote 1191: Pub. Stat. Laws (1808), I, 477 n. 1.]
[Footnote 1192: Acts and Laws (1750), 144. Cf. also Acts and Laws (1786), 135 ff.; ibid. (1805), 285, 286; Pub. Stat. Laws (1821), 316; ibid. (1835), 369, 370; ibid. (1839), 412, 413; Rev. Stat. (1849), 272; Statutes (1854), 374-78 (repeal of old law and enactment of a new registration system).]
[Footnote 1193: Laws of N. H. (1797), 296.]
[Footnote 1194: See Const. and Laws (1805), 296, 297; Laws of the State (1815), 350, 351; ibid. (1830), 172-74; Rev. Stat. (1843), 290-92; Compiled Stat. (1853), 375, 376; Laws of N. H. (1854), 1415, 1416 (new system introduced).]
[Footnote 1195: Laws of the Com. of Mass., 1780-1816, I, 322, 323.]
[Footnote 1196: Laws of the Com. of Mass. (1834), 251-57; Rev. Stat. (1836), 476; Supp. to Rev. Stat., 1836-1853, I, 597; Acts and Resolves (1850), 347 (act of March 28, establishing the modern license system).]
[Footnote 1197: It was retained in Vermont until 1864: Gen. Stat. (2d ed., 1870), 856. Cf. the acts of 1779 and 1784 in SLADE, State Papers, 292, 484; and Laws of the State (1798), 380, 331; and in Maine until after 1858: compare Laws of the State (1821), I, 340 ff.; Rev. Stat. (1857), 390; Acts and Resolves (1858), 12 (new system introduced). A reactionary step was taken in the Rhode Island law of Jan., 1849. Hitherto the optional plan had prevailed; by this act, in all cases, solemnization is allowed only after at least one notice in a religious meeting: see Public Laws, 1848-1851, 757. The Pub. Laws (1844), 267, show the optional plan in force; but it does not appear in Rev. Stat. (1857), 312, 313, a certificate of qualification presented by the parties to the person conducting the ceremony taking its place.
The following is the form of notice required to be posted for fourteen days, when application is made to a lay officer--justice, warden, and later a judge--as given in the Pub. Laws of R. I. (1798), 481, 482:
"KNOW all men by these presents, that A. B. of ---- and C. D. of ---- have declared unto me their intentions of marriage.... I do therefore hereby make public the said intentions. If any person know any just cause or impediment why these persons shall not be joined together in marriage, they may declare the same as the law directs. Given under my hand and seal, at ----, this ---- day of ----."]
The various formalities to be observed in getting married and in registering the facts connected therewith, as required by the existing system, may now be briefly set forth. The first step is application to the town clerk or registrar for a license, or "certificate" as it is usually called. This takes the place of the certificate of publication issued by the minister, clerk, or other person asking the banns or posting the notice, provided for in the earlier laws. By the Massachusetts statute persons intending to be joined in marriage shall "cause notice of their intention to be entered in the office of the clerk or registrar of the city or town in which they respectively dwell, or, if they do not dwell within the commonwealth," then with the similar officer of the place "in which they purpose to have the marriage solemnized. If there is no such clerk or registrar in the place of their residence, the entry shall be made in an adjoining city or town." The certificate is issued at the time the notice is filed; but certificate to a minor[1198] is forbidden except upon the application or consent in writing of the parent, master, or guardian, if living in the state, under penalty of not to exceed one hundred dollars. To protect himself, the clerk or registrar "may require of an applicant for such certificate an affidavit setting forth the age of the parties;" which "affidavit shall be sworn to before a justice of the peace, and shall be sufficient proof of age to authorize the issuing of the certificate." For a false statement in the affidavit the penalty is not to exceed two hundred dollars.[1199] In this state a town of more than two thousand inhabitants is allowed to choose a person other than the clerk to be registrar.[1200]
[Footnote 1198: For the special case of a male under eighteen and a female under sixteen, see above, subsec. b).]
[Footnote 1199: Pub. Stat. of Mass. (1882), 810; Rev. Laws (1902), II, 1347, 1348, 1352.]
[Footnote 1200: Pub. Stat. of Mass. (1882), 258.]
The laws of Vermont and Maine differ but little in the leading points from those of Massachusetts; but in Maine the notice of intention must be recorded with the town clerk where each person resides, if both live in the state, at least five days before the marriage.[1201] More elaborate are the provisions of the Rhode Island, New Hampshire, and Connecticut statutes, requiring the clerk to enter on the certificate the various facts gathered as statistics, to which reference will again be made.[1202] In all cases a penalty, severe under some recent enactments, is imposed upon the minister, justice, or other officer who presumes to celebrate a marriage without first receiving the certificate signed as the law requires.[1203]
[Footnote 1201: Rev. Stat. of Me. (1884), 515, 516; _Vermont Stat._ (1894), 501.]
[Footnote 1202: Pub. Stat. of R. I. (1882), 416, 417; Gen. Laws (1896), 622, 623, where the elaborate forms of the declarations of the "expectants" are given in full; and the act of 1898, Acts and Resolves, 47 ff. Cf. Gen. Stat. of Conn. (1887), 24, 608, 609; Pub. Stat. of N. H. (1891), 493, 494; Gen. Laws of N. H. (1878), 428; Gen. Stat. of N. H. (1867), 331; Laws of N. H. (1903), 79, requiring non-residents to file notice five days before issue of certificate.]
[Footnote 1203: In Connecticut the fine for such illegal celebration was for a long time just $67: Acts and Laws (1805), 286; Rev. Stat. (1849), 273; but it is now $100: Gen. Stat. (1902), 1086. In Massachusetts the fine is not to exceed $500: Acts and Resolves (1896), 257; earlier it was $50 to $100: Pub. Stat. (1882), 811; in Rhode Island the penalty is $1,000, or not to exceed six months' imprisonment: Gen. Laws (1896), 625; Acts and Resolves of R. I. (1899), 51; in Maine, $100, one-third to the prosecutor and two-thirds to the county: Rev. Stat. (1884), 517; in Vermont, not less than $10: Vermont Stat. (1894), 502; in New Hampshire it is $60, to the parent, master, or guardian of either party, who may prosecute: Pub. Stat. (1891), 494; Gen. Laws (1878), 428.]
Provision is everywhere made for a "return" or report by the persons or religious societies solemnizing marriages.[1204] In Connecticut, Vermont, and Rhode Island the return is made by indorsement upon the certificate, which is then sent to the clerk or registrar of the city or town whence it was issued or in which the celebration took place.[1205] By the Connecticut law of 1899 the return must be made before or during the first week of the month following the ceremony.[1206] In Maine and Massachusetts the societies or persons authorized to celebrate marriages are required to keep a record, and from it make periodical return to the clerk or registrar of the town in which the license was issued. By the Maine law the return must be made by the fifteenth day of each month, and a similar report sent to the clerk of the town where the intention was entered.[1207] The Massachusetts statute orders that between the first and tenth days of each month the certificate of each marriage celebrated shall be sent to the clerk or registrar of the city or town issuing the same, and if the marriage be solemnized in a city or town other than the place or places in which the persons reside, then a copy of the certificate, or of either certificate in case two were issued, must be returned to the proper officers of their respective places.[1208] The Massachusetts laws provide also that when marriages take place in another state between persons living in the commonwealth, such persons shall within seven days after their return file with the clerk or registrar of the town in which either lived at the time a certificate or declaration of the marriage, including the facts relating thereto required by law.[1209] A like return of marriages celebrated outside the state is prescribed in Maine[1210] and New Hampshire.[1211] In Vermont a "male resident" so married must within sixty days thereafter deposit with the clerk of the town where he resides a certificate embracing the statistics required by law.[1212] The statutes of Vermont also provide that the head of a family who moves into the state to become a permanent resident may cause a certificate of his marriage, including the same statistics, to be recorded in like manner.[1213]
[Footnote 1204: By the early laws of Rhode Island, after the wedding, the person solemnizing gave to the parties a certificate in the following form: "I hereby certify that A. B. of ----, son of ----, and C. D. of ----, daughter of ----, were lawfully joined together in marriage on the ---- day of ---- by me the subscriber."--Pub. Laws (1798), 486. At present the "indorsement" is in similar form: Gen. Laws (1896), 624.]
[Footnote 1205: In Connecticut and Vermont the indorsed certificate is sent to the officer of the town whence it issued; in Rhode Island, to the officer of the town where the marriage was solemnized: Gen. Stat. of Conn. (1887), 609; Vermont Stat. (1894), 501, 502; Acts and Resolves of R. I. (1899), 49, 50; Gen. Laws of R. I. (1896), 624. The form of indorsement prescribed in Rhode Island is as follows: "I hereby certify that the herein described ---- and ---- were joined in marriage by me, in accordance with the law of the state of Rhode Island, in the ---- of ---- this ---- day of ----, A. D., 189-."--Ibid., 624. Earlier in Connecticut a separate certificate of the solemnization was sent to the clerk: Pub. Stat. Laws (1821), 317.]
[Footnote 1206: Pub. Acts of Conn. (1899), 998.]
[Footnote 1207: Rev. Stat. of Me. (1887), 517: FREEMAN, Supp. to Rev. Stat., 368, 369.]
[Footnote 1208: Act of May 17, 1892: Acts and Resolves (1892), 250-52.]
[Footnote 1209: Pub. Stat. of Mass. (1882), 811.]
[Footnote 1210: Rev. Stat. of Me. (1884), 516. But in Maine the certificate or declaration must be filed in the towns where the parties "respectively" dwell.]
[Footnote 1211: Pub. Stat. of N. H. (1891), 494; ibid. (1900), 589; Gen. Laws (1878), 428.]
[Footnote 1212: Vermont Stat. (1894), 540.]
[Footnote 1213: Ibid.]
In recent years most of the New England states have made wiser provision than in the earlier period for the collection and preservation of statistics relating to marriage. The town clerk or registrar is required to keep a more complete record. The statutes prescribe a large number of details which must be entered by him, sometimes even as a condition of granting the license. An illustration is afforded by the Massachusetts act of 1897. Clerks are commanded in each case to enter and report the date of the record; the date and place of the marriage; the name, residence, and official station of the person solemnizing; the name, place of birth, residence, age, and color of each of the parties; the number of the marriage, and whether either party is widowed or divorced; the occupation of each; the names of the parents, with the maiden names of the mothers; and the maiden name of the bride in case she be widowed or divorced.[1214] A similar list of facts is called for in New Hampshire;[1215] while the recent enactments of Maine,[1216] Connecticut,[1217] and Rhode Island[1218] on this subject are especially painstaking and elaborate.
[Footnote 1214: Acts and Resolves of Mass. (1897), 420, 421. For the earlier law as to the clerk's record see Pub. Stat. (1882), 256. In 1786 the town clerk is to report to the clerk of the general sessions of the peace in each county, who is to keep a record: Laws of the Com., 1780-1816, I, 323.]
[Footnote 1215: Pub. Stat. of N. H. (1900), 588. Cf. _Gen. Laws_ (1878), 428; Gen. Stat. (1867), 331; and the act of 1851, Laws of N. H. (1851), chap. 1103; Comp. Stat. (1853), 284, 285, which seem to have first introduced something like a modern provision for record.]
[Footnote 1216: FREEMAN, Supp. to Rev. Stat., 1885-1895, 370-75; Laws (1891), chap. 118, 127, as amended by Laws (1893), chap. 233, 248, and Laws (1895), chap. 154, 169-73.]
[Footnote 1217: Act of May 6, 1897: Pub. Acts, 850. Cf. for the earlier law Gen. Stat. (1887), 608.]
[Footnote 1218: Gen. Laws of R. I. (1896), 331, 622, 623; superseded by act of May 6, 1898: Acts and Resolves, 47 ff.]
Finally it may be noted, as a sign of the growing appreciation of the needs of social and statistical science, that throughout New England statutory provision has been made for state registration of marriages. The local clerks and registrars are required to make annual report of the facts collected and recorded by them to the general registrar, who is usually the secretary of the commonwealth or the secretary of the state board of health.[1219] By the Rhode Island statutes the original indorsed certificates, returned to the town clerk and by him recorded, are to be sent to the secretary of the state board of health, who is to cause abstracts of them to be made and published. Thereafter they are to be deposited in the office of the secretary of state, where they shall be properly indexed and remain subject to inspection.[1220] Connecticut is doing still better in this regard. By a series of acts, beginning in 1893, that state is making a praiseworthy effort to complete her marriage records from the date of the first incorporation of the various towns to the present time;[1221] and Maine has provided for the collection and publication of the records of births, deaths, and marriages.[1222] Vermont by an act of 1898 requires the secretary of the state board of health to prepare and furnish the town and city clerks blank forms to be used as books of records of "births, marriages, divorces, and deaths." Return is to be made by the local officers, from which every second year the secretary of the state board of health is to publish a report.[1223]
[Footnote 1219: In Massachusetts report is made to the secretary of the commonwealth: Pub. Stat. (1882), 255-58; Acts and Resolves (1897), 421-29; in New Hampshire and Maine, to the state registrar of vital statistics, being the secretary of the state board of health: Pub. Stat. of N. H. (1891), 490-92; Laws (1899), 255, 256; FREEMAN, Supp. to Rev. Stat. of Me., 1885-1895, 370; in Connecticut, to the superintendent of registration of vital statistics, who is the secretary of the state board of health: Gen. Stat. (1887), 20 ff., 566; cf. Public Acts (1897), 850.]
[Footnote 1220: Gen. Laws (1896), 624. See the act of 1899, Acts and Resolves, 19, providing for the registration of births, deaths, and marriages, knowledge of which may in any reliable way come to the recorder.]
[Footnote 1221: By an act of 1893 the registrars of births, deaths, and marriages are directed, so far as possible, to complete the records from Jan. 1, 1850: Pub. Acts (1893), 324. This act has since been twice supplemented: ibid. (1895), 552; ibid. (1897), 836.]
[Footnote 1222: Acts and Resolves of Me. (1903), 168.]
[Footnote 1223: Act of Nov. 30, 1898: Acts and Resolves of Vt. (1898), 41-46, repealing the act of 1896 and all other acts in conflict. Cf. also Vermont Stat. (1894), 538-40.]
II. THE SOUTHERN AND SOUTHWESTERN STATES[1224]
[Footnote 1224: In this section the laws of marriage are traced for the following twenty-one districts and commonwealths: the states of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, South Carolina, Tennessee, Texas, Virginia, and West Virginia; Indian Territory, the territories of Arizona, New Mexico, Oklahoma, Porto Rico, and the District of Columbia.]
Throughout this period in the South matrimonial legislation has moved more slowly than in New England and the West, but toward the same goal. Sentiment has been more conservative regarding innovation; and in general equal progress has not been made in remodeling and improving the details of administration or the safeguards of marriage law. Originally, as elsewhere shown,[1225] the English ecclesiastical forms were established in Virginia and nominally, in a varying degree, in the neighboring colonies. Dissenters were illiberally, often tyrannically, treated; and to satisfy their consciences in this regard they were compelled to take the law into their own hands. Still, at the Revolution, it was apparent that the American type of matrimonial legislation, as in its essential features already existing in New England, must eventually triumph in the South.
[Footnote 1225: See chap. xiii.]
a) Solemnization.--Old ideas were especially tenacious in Virginia. For the first time, in 1780, as already suggested,[1226] the monopoly of the Anglican clergy was restricted through legislation. By the statute of that year, for the purpose of "encouraging marriages" and "removing doubts concerning the validity" of those heretofore celebrated by dissenting clergymen, not only are all such marriages declared "good and valid in law," but for the future ministers of "any society or congregation of Christians," as well as the Quakers and Menonists, are permitted to conduct the celebration according to their own rules and usages. License and banns are dispensed with in the case of Menonists and Quakers,[1227] but the act limits the number of dissenting ministers who may take advantage of its provisions. On recommendation of the "elders of the several religious sects," the court of each county is authorized to license not more than four ministers of each dissenting society to solemnize marriages; and the licenses are to be "signed by the judge or elder magistrate under his hand and seal."[1228] Four years later a new marriage act appears, by which the ordained ministers of all societies of Christians are placed on the same level. The provision for licensing a limited number is not retained. Any minister may celebrate marriages of "any persons" within the state, provided he first produce to the court of the county or borough in which he resides credentials of his ordination, and also of his being in regular communion with the society of which he is reputed a member, take the oath of allegiance to the commonwealth, and enter into bond, with two or more sufficient securities, in the sum of five hundred pounds current money for the true and legal performance of his trust. A "testimonial" is then issued to him by the court.[1229] "Itinerant" ministers, however, are not entitled to a testimonial. If any minister shall voluntarily decline, or be ejected from, his office, or "if any of his securities shall give him notice in writing that they desire to be released from their suretyship, in either of these cases," should he refuse or neglect "to give up his testimonials to the court from which they were obtained, any one of his securities, without instituting a suit, may proceed against him as if they were his special bail in an action of debt until he is thereunto compelled or gives them sufficient caution for their indemnification."[1230] By this act also irregular marriages already contracted are made valid. Its provisions regarding solemnization are retained in the elaborate statute of 1792.[1231]
[Footnote 1226: See chap, xiii, sec. i.]
[Footnote 1227: HENING, Statutes, X, 361-63; cf. JEFFERSON, Notes on the State of Va. (Brooklyn, 1794), 174.]
[Footnote 1228: HENING, op. cit., X, 363.]
[Footnote 1229: The testimonial runs as follows: "This shall certify to all whom it may concern, that at a court held for ----, on the ---- day of ----, one thousand seven hundred and ----, A. B. produced credentials of his ordination, and also of his being in regular communion with the ---- church, took the oath of allegiance to the commonwealth, and entered into bond, as required ... , and that he is hereby authorized to celebrate the rites of matrimony," etc.--HENING, op. cit., XI, 503 (act of Oct., 1784).]
[Footnote 1230: Ibid., 504.]
[Footnote 1231: Act of Dec. 22, 1792: Acts of the Gen. Assembly (1794), 202-6.]
Thus far the religious ceremony only had been acknowledged by law. A step toward civil marriage was taken in 1783. It is recited that, since "it hath been represented ... that many of the good people in the remote parts of this commonwealth are destitute of any persons, authorized by law, to solemnize marriages," therefore when it shall seem necessary, in the scarcity of clergymen, the court of any county "on the western waters" is empowered "to nominate so many sober and discreet laymen as will supply the deficiency." It is noticeable that such layman, "upon taking the oath of allegiance" to the state, is to receive a license to celebrate the rites of matrimony "according to the forms and customs of the church of which he is reputed a member." It appears from this statute that magistrates in such places had already been in the habit of celebrating marriages; and these marriages are now legalized.[1232] In consequence of the scarcity of ministers, persons desiring to be married were sometimes compelled to travel long distances across the mountains, exposed to danger from the Indians. Hence in 1794 the courts of Lee and Randolph counties were authorized to nominate two resident laymen in each to perform the ceremony within the county where they respectively resided. These commissioners[1233] were to take an oath of fidelity to the commonwealth; and each was to "enter into bond for sufficient security in the sum of fifteen hundred dollars" for the "true and faithful performance of his trust." This act differs from that of 1783 in being silent as to the use of the religious ceremony; and so marks a step in advance toward full civil marriage.[1234]
[Footnote 1232: HENING, op. cit., XI, 281, 282. By the act of 1792, also, marriages celebrated by magistrates before 1785 were legalized: Acts of the Gen. Assem., 203.]
[Footnote 1233: They are called "commissioners" in the act of 1830: Acts (1830-31), 103.]
[Footnote 1234: Acts of the Gen. Assem. of Va. (1794), 331.]
The foundation of the law of Virginia regarding the marriage celebration, both civil and religious, as it still exists, was thus laid more than a hundred years ago. A few changes, most of them of minor importance, have been made in later years. From time to time, by special law, the benefits of the act of 1794 were extended to other counties;[1235] and in 1830 this plan was adopted for the whole state. The court of every county which should suffer "inconvenience" through lack of ministers was then authorized to name one or two persons to solemnize matrimony, on condition of giving satisfactory bond, as required by earlier statutes.[1236] As the law now stands, "the court of every county which deems it expedient, may appoint one or more persons resident in such county to celebrate the rites of marriage within the same, or a particular district thereof, and upon any person so appointed giving such a bond as is required of an ordained minister, may make a like order" empowering him to act. But the court may rescind this order at pleasure.[1237] It appears, therefore, contrary to the usual custom, that in Virginia the justice of the peace as such has no authority to perform the marriage ceremony. Regarding the religious celebration, the law remains very nearly as it was in 1784, except in one or two important provisions. At least since 1819 Jews have enjoyed the right of using their own marriage rites;[1238] while already in 1812 ordained ministers in regular standing with any society of Christians, residing in any adjacent state, were authorized to solemnize wedlock in Virginia on filing credentials and giving bond in the court of the county where the marriage takes place, the oath of allegiance not being required.[1239] The law was further liberalized in 1831. Any ordained minister in regular communion, as before, "who by the government and discipline of the church of which he is a member, has been assigned to a circuit, station, or district for the period of one year at the least," is allowed, on the same conditions as other ministers, to obtain a "testimonial" from any county or corporation court within such area authorizing him to perform the marriage rites.[1240] With these changes the law of Virginia is complete, except that it is couched in more general phrase. "When a minister of any religious denomination shall, before the court of any county or corporation in this state, produce proof of his ordination, and of his being in regular communion with the religious society of which he is reputed a member, and give bond in the penalty of five hundred dollars, such court may make an order authorizing him to celebrate the rites of marriage." No ceremony is prescribed; but each religious body, though having no minister, may use its own forms.[1241]
[Footnote 1235: So to Ohio and Brooke counties in 1796: Acts of the Gen. Assem. (1803), 371; and to Bath county in 1830: Acts (1830-31), 103.]
[Footnote 1236: Act of Dec. 20, 1830: Acts (1830-31), 103. Compare Revised Code (1819), I, 393-403; and TATE, Digest (1823), 417, where the provisions of 1794 and 1792 as to lay commissioners and bond are retained and made general.]
[Footnote 1237: Code of Va. (1887), 555. Cf. Code of Va. (2d ed., 1860), 524, where this provision appears in the same terms.]
[Footnote 1238: Laws of 1784 and 1792 as amended at the revision of 1819: Revised Code (1819), I, 396; TATE, Digest, 416.]
[Footnote 1239: Act of Feb. 13, 1812, chap. 25: TATE, Digest, 416.]
[Footnote 1240: Act of Feb. 16, 1831: Acts (1830-31), 102; also in Supplement to Revised Code (1833), 221.]
[Footnote 1241: Code of Va. (1878), 555.]
West Virginia, made a separate state in 1863 by dismemberment of the Old Dominion, has taken a much more conservative course. In 1868 "any minister of the gospel," on presenting the credentials of his ordination and of being in regular communion, according to the plan of the mother-commonwealth, is authorized to "celebrate the rites of marriage in all the counties of the state;" and no person other than a minister who has thus "complied" with the law shall hereafter be permitted to perform the ceremony.[1242] No provision whatever is made for the lay celebration. This reactionary policy was, however, temporarily abandoned in 1873. By a statute of that year the minister, otherwise to be qualified as under the act of 1868, is required in addition to give bond in the sum of fifteen hundred dollars; and each county court, as in Virginia, is authorized to appoint one or more laymen with power to solemnize wedlock.[1243] For four years the lawmaker staid his hand; but in 1877 the illiberal principle of the act of 1868 was again enforced.[1244] So to the present hour only the religious celebration, either by a clergyman or by the usages of a society having no officiating minister, is legal in West Virginia. The lay ceremony is not recognized there by statute.[1245]
[Footnote 1242: Acts of the Legislature of W. Va. (1868), 29.]
[Footnote 1243: Ibid. (1872-73), 501.]
[Footnote 1244: Acts of the Legislature of W. Va. (1877), 135.]
[Footnote 1245: See the act of March 18, 1882: Acts of the Leg. (1882), 312, 313; which is retained in Code of W. Va. (1897), 654, 655; and there has been no later legislation.]
It is less surprising that Kentucky, whose territory until the admission of the state to the Union in 1792 was embraced in the jurisdiction of Virginia, should have retained the matrimonial law of the parent commonwealth. As regards solemnization, the act of 1798 in its substance is almost identical with the statutes of Virginia before that of 1794 appeared. It contains like provisions with respect to bond, credentials, testimonial, and oath of allegiance on the part of the minister; and Quakers, Menonists, and all societies of Christians are allowed to use their own rites.[1246] In the next year the county courts of the state are authorized each to license one or more of their own magistrates to solemnize marriages, "where there shall not be a sufficient number of ministers of the gospel" for the purpose.[1247] By the present law, which in all essential respects is identical with the act of 1851, marriages may be celebrated either by ministers of the gospel or priests of any denomination, in regular communion with a religious society; by judges of the county courts, and such justices of the peace as the county courts may authorize; or according to the usage of any religious society to which either person may belong.[1248]
[Footnote 1246: Act of Feb. 3, 1798: Stat. Law of Ky. (ed. LITTELL), II, 65, 66. Provision was made in 1814 for revoking the testimonial whenever a minister shall be "suspended, deposed, or excommunicated, by and from the society to which he belongs, for any other cause than a difference in religious tenets."--Ibid., V, 95, 96.]
[Footnote 1247: Act of Dec. 12, 1799: Stat. Law of Ky., II, 275, 276.]
[Footnote 1248: Kentucky Stat. (1894), 764, 765; agreeing in essential provisions with the act of March 24, 1851, taking effect July 11, 1852: in Acts (1850-51), 212-16. Cf. Kentucky Stat. (1899), 823.]
In Maryland no progress has been made regarding the marriage celebration since the Revolution. Ministers and priests still have a monopoly of the matrimonial business, as under the illiberal act of 1777, whose provisions have already been summarized.[1249] Quakers are still allowed their own rites; but, as in West Virginia, the lay celebration is not authorized by the statute.[1250] Until 1896, with slight modification, the marriage law of Maryland was in force in the District of Columbia. By a statute of that year the ceremony may be performed in the District by any justice of the peace; any judge of a court of record; or by any ordained or appointed minister residing anywhere in the United States, if authorized by a justice of the Supreme Court.[1251]
[Footnote 1249: See chap. xiii, sec. ii, above.]
[Footnote 1250: POE, Code of Md. (1888), 975. Compare KILTY, Laws, 1777, chap. 12, sec. 3; and Laws of Md. (1787), 1777, chap. 12, sec. iii.]
[Footnote 1251: Act of May 13: U. S. Stat. at Large, XXIX, 118-20; MOORE, Code (1902), 266.]
Elsewhere the history of the matrimonial legislation of North Carolina has been traced to the act of 1766, the last statute adopted before the Revolution. The Quakers had practiced their own rites throughout the colonial era. By the act just mentioned the Presbyterians had been granted the same privilege, but on humiliating terms. With these exceptions, the clergy of the English church enjoyed a monopoly of the marriage celebration; for no other dissenting body save the Presbyterians was recognized by the law. All this was changed in 1778, after the establishment had been swept away. The "regular ministers of every denomination, having the cure of souls," and all justices of the peace in the state, are authorized to solemnize marriages; while the Quakers are to enjoy their ancient privileges.[1252] So the law remains at the present time.[1253]
[Footnote 1252: IREDELL-MARTIN, _Acts of the Gen. Assem., 1715-1803_, I, 253.]
[Footnote 1253: North Carolina Code, I, 689, retaining the act in Laws (1871-72), chap. 193, sec. 3.]
Throughout the century the statutes of Tennessee governing the celebration of wedlock have been practically the same as those of North Carolina, the parent commonwealth, to whose jurisdiction the territory belonged until 1796.[1254] At present "all regular ministers of the gospel of every denomination, and Jewish rabbis, having the cure of souls, and all justices of the peace, judges, and chancellors in the state," as well as the governor and the speakers of the senate and house, are authorized to celebrate marriages.[1255] No special ceremony is prescribed.
[Footnote 1254: For the early years see SCOTT, Laws of the State of Tenn. (1821), Index at "marriage;" Statute Laws (1831), 219, 220; CARUTHERS AND NICHOLSON, Compilation (1836), 449-52.]
[Footnote 1255: Code of Tenn. (1884), 609. The judges were empowered by Acts (1846), chap. 145, pp. 220, 221; chancellors in 1842; Statute Laws (1846), 126; rabbis by Acts (1879) chap. 98; and the governor and speakers by Acts (1889), chap. 134, p. 272.]
During the period under review South Carolina, like Pennsylvania, has made no legislative provision for the marriage celebration. The same usage prevails since the Revolution as before, except that in the colonial period usage prevailed in spite of the statutes. What Brevard said in 1814 is still true. "It is customary in this state," he declares, "to celebrate or publish the matrimonial contract, by or before a minister of the gospel--of any sect, and without regard to any particular form or ceremony--or by or before a justice of the peace, or other lawful civil magistrate."[1256]
[Footnote 1256: Editorial note, BREVARD, Alphabetical Digest (1814), II, 438. Cf. on this point the remarks of EDITOR DESAUSSURE, in connection with the case of Vaigneur et al., v. Kirk (1808), in 2 S. C. Equity Reports, 644-46.
"In South Carolina the only reference to the parties by whom marriages may be solemnized is found in section 2034, General Statutes, 1882, which provides a penalty for the solemnization of marriage between white and colored persons by 'any clergyman, minister of the gospel, magistrate, or other person authorized by law to perform the marriage ceremony.'"--WRIGHT, Report, 50, 51.]
The optional civil or religious celebration before a minister or justice, existing by custom in Georgia from the foundation of the colony, was recognized by the act of 1785--the first legislation on the subject of matrimony after the organization of the state.[1257] A few changes in details have brought the law into harmony with the prevailing practice of the country.[1258] At present marriages may be solemnized by any judge, justice of the peace, minister of the gospel, Jewish minister, "or other person of any religious society or sect" authorized by its rules to perform the ceremony.[1259] By a unique provision "colored ministers of the gospel, or ministers of the gospel of African descent," are allowed to celebrate marriages "between freedmen and freedwomen, or persons of African descent, only."[1260]
[Footnote 1257: Digest of the Laws of Georgia (Philadelphia, 1801), 314. Contracts previously celebrated before any justice of the peace, minister, or preacher of the gospel are confirmed: and the same persons, if properly qualified or ordained, are in future authorized to perform the ceremony, in each case after due notice or license.]
[Footnote 1258: Judges and justices of inferior courts are mentioned as having power to join persons in marriage in the act of 1799: Digest of the Laws of Ga., 733.]
[Footnote 1259: Code of Ga. (1882), 392, 393; ibid. (1896), 11, 223, 224.]
[Footnote 1260: Acts (1866), 156, 157; Code of Ga. (1896), II, 5.]
In all the other states and territories of the South and Southwest the optional religious or civil celebration before a minister or judicial officer has been sanctioned by statute from the beginning. Such is the case in Florida, Arkansas, Indian Territory, Arizona, New Mexico, and Oklahoma; as also in Alabama, Mississippi,[1261] and Missouri, where in each case the typical optional plan was adopted under the territorial legislation of 1805.[1262]
[Footnote 1261: An act of Feb. 19, 1836, validates marriages illegally solemnized by members of the board of county police: Code of Miss. (1848), 496.]
[Footnote 1262: In these states and territories marriage may be celebrated as follows:
(1) Florida: By "all ordained ministers of the gospel in communion with some church, all judicial officers and notaries public": Rev. Stat. of Florida (1892), 679 (act of Feb. 8, 1861). For the earlier law see act of Nov. 2, 1829, in THOMPSON, Manual or Digest (1847), 219; DUVAL, 88.
(2) Arkansas: By the governor of the state for the time being; any judge of the courts of record; any justice of the peace of the county where the marriage is solemnized; any regularly ordained minister or priest of any religious sect or denomination, when he shall have caused to be recorded in the office of clerk and recorder of some county in the state the license or credentials of his clerical character, and shall have obtained from such clerk a certificate of the record thereof; religious societies which reject formal ceremonies, to which the parties belong, using their own rites: Digest (1894), 1126, 1127, being the same law as in Rev. Stat. (1838), 536-38.
(3) Arizona: By a regularly licensed or ordained minister of the gospel; any judge of the courts of record; justices of the peace of the several counties: Rev. Stat. (1887), 371; ibid. (1901), 808, 809.
(4) New Mexico: By any ordained clergyman, without regard to the sect to which he may belong; any civil magistrate; any religious society by its own rites: Compiled Laws (1897), 405, 406; see act of Feb. 2, 1860: Laws (1860), 120, or in Rev. Stat. (1865), 534.
(5) Alabama: By any licensed minister of the gospel in regular communion with the Christian church or society of which he is a member; pastor of any religious society, according to the rules ordained or customs established thereby; Quakers, Menonists, and other Christian societies, according to their forms of consent published and declared before the congregation; all judges of supreme, circuit, or city courts, or a chancelor, throughout the state; any judge of probate or justice of the peace within his county: Code of Alabama (1897), I, 828. For the law of Jan. 5, 1805, enacted by the "Legislative Council and House of Representatives of Mississippi Territory," see TOULMIN'S Digest (1823), 576, 577; or Stat. of Miss. Territory (1816), 328-30.
(6) Mississippi: By any minister of the gospel ordained according to the rules of his church or society, in good standing; judges of the supreme or circuit court; justices of the peace within their respective counties; members of the boards of supervisors within their respective counties; Quakers, Menonists, or any other Christian society, to which the parties belong, according to their own customs: Annotated Code (1892), 678. Compare the laws of Jan. 5 and July 20, 1805, revised and amended Feb. 10, 1807, in Stat. of Miss. Territory (1816), 328-30, already cited for Alabama, which was originally a part of the Mississippi Territory; also the act of June 29, 1822, in Code of Miss. (1848), 492, 493, being practically the same as the law of 1805 as modified by that of 1807.
(7) Missouri: By any judge of a court of record; any justice of the peace; or any licensed or ordained preacher of the gospel who is a citizen of the United States: act of March 1, 1897: Laws, 116; also in Rev. Stat. (1899), I, 1036. The statute of April 24, 1805, enacted by the "Governor and Judges of the Indiana Territory"--who were authorized and empowered by an act of Congress to make laws for the "District of Louisiana," of which Missouri was a part--allows judges of the general court, or of the county court of common pleas, in their respective jurisdictions, and ministers of any religious society or congregation within the districts in which they are settled, and Quakers in their public meetings to solemnize marriages: Laws of a Pub. and Gen. Nature (1842), I, 66. Compare the act of Feb. 20, 1835, in Rev. Stat. (1835), 401, 402; and Rev. Stat. (1845), 729-31.
(8) Indian Territory: By act of Congress, May 2, 1890, U. S. Stat. at Large, XXVI, 81, the marriage laws of Arkansas, except as expressly modified, are put in force. Thus, by federal enactment, marriages entered into by Indian customs are valid; and, in addition to the persons authorized in Arkansas, they may be solemnized by clerks, deputy clerks, and commissioners of the United States courts, Annot. Stat. of Ind. Ter. (1899), 12, 13, 507 ff.
(9) Oklahoma: By a justice of the supreme court, judge of the district or probate court, justice of the peace, a duly ordained, licensed, or authorized preacher or minister of the gospel or priest of any denomination; and previous to 1897, in case of Indians, by the peacemakers, their agents, or the superintendent of Indian affairs. Non-compliance with the statute does not invalidate a marriage: Stat. of Oklahoma (1893), 669; act of Feb. 26: Session Laws (1897), 210. By another act of 1897 Indian marriages hitherto celebrated by their own rites are validated, and for the future forbidden, the Indians having accepted land in severalty being subjected to the statute: ibid., 212-15.
(10) Porto Rico: By any judge, or by any clergyman or minister of any religion or sect, whether a citizen of the Island or of the United States: Rev. Stat. and Codes (1902), 808, 811.]
The laws of Louisiana have always shown ample evidence of their Latin origin. This is especially true of those governing marriage, divorce, and the family; except that the celebration was determined by statute, and was therefore soon brought into harmony with the practice prevailing in the southwestern states, the contemporary Virginia plan being at first adopted as a model. The vast region bearing the name of Louisiana was acquired from France in 1803. For the purpose of government it was presently divided into two parts, lying respectively north and south of the thirty-third parallel. The northern portion, called the "District of Louisiana," for law and administration was attached to Indiana Territory, while the southern portion, called the "Territory of Orleans"--having about fifty thousand inhabitants, French, Spanish, and English--in 1804 was provided with a separate government in which the lawmaking power was vested in a legislative council appointed by the president of the United States. In the next year this council was superseded by a representative assembly similar to that existing in the Mississippi Territory;[1263] and at the same time the northern region, under the new name of the Territory of Louisiana, was given a centralized government in which the legislative authority was in the hands of the governor and three judges holding by presidential appointment.[1264] A Digest of the Civil Laws now in force in the Territory of Orleans was later prepared. This contains minute provisions relating to marriage and divorce; but declares that, "besides the preceding general rules, there are divers formalities to be fulfilled for the publication and celebration of marriages, which are established by a special act of the legislature."[1265] But "such marriages only are recognized by law as are contracted and solemnized according to the rules which it prescribes."[1266]
[Footnote 1263: Compare the acts of March 26, 1804, and March 2, 1805: U. S. Stat. at Large, II, 283-89, 322, 323; also in POORE, Charters, I, 691-97.]
[Footnote 1264: Act of March 3, 1805: U. S. Stat. at Large, II, 331, 332; also in POORE, Charters, I, 697, 698. This act places the appointment of the governor in the hands of the president; but the judges are merely to be "appointed" and hold their office for four years.
On the institution of government in the territory of Orleans see ADAMS, U. S., II, chap. ii.]
[Footnote 1265: _Digest of Civil Laws now in force in the Territory of Orleans_ (1808), 26.]
[Footnote 1266: Ibid., 24.]
On February 24, 1807, all contracts hitherto solemnized by the judge of any county, a justice of the peace, minister of the gospel, or by any person legally discharging the duties of commandant, are validated so far as relates to the ceremony and the authority of the person officiating, provided they are in other respects according to law.[1267] On April 6 of the same year appears a very elaborate statute--the "special act of the legislature" above mentioned--which in many of its provisions still constitutes the matrimonial law of Louisiana.[1268] By this act "any priest or minister of the gospel, regularly ordained or admitted into any religious society, may obtain a licence to celebrate marriages within this territory." For this purpose he must produce the usual credentials "to the judge of the parish within which his domicile is situated, take the oath of allegiance, and the oath of affirmation to support the constitution of the United States, and give bond with security in the sum of two thousand dollars, for the faithful performance of his trust." Quakers and Menonists are allowed the use of their own rites; and "when any parish judge shall think that there is not a sufficient number" of qualified priests or ministers, he may grant licenses to justices of the peace to "celebrate marriages in the parish in which they reside," on their giving a legal bond. All marriages must be celebrated in the parish where one of the persons has his domicile and in the presence of three witnesses.[1269]
[Footnote 1267: LISLET, General Digest (1828), II, 3.]
[Footnote 1268: It is contained in LISLET, op. cit., II, 3-13; also (in part) in the Digest of the Civil Laws now in force in the Territory of Orleans, 24 ff.; with the changes to date of publication in Code civil de l'état de la Louisiane (1825), 80 ff.; in the reprint of the last-named compilation in Civil Code of La. (1853). Compare the provisions of the present law in VOORHIES AND SAUNDERS, Revised Civil Code (1888), 60-68. See also The Laws of Las Siete Partidas, which are still in force in the State of Louisiana, translated from the Spanish (1820), I, 451-64.]
[Footnote 1269: LISLET, op. cit., II, 7-9, 10.]
The provisions of the act of 1807 requiring clergymen to procure license and give bond were repealed two years later.[1270] In 1820 marriages irregularly celebrated by the parish justices were validated; and these magistrates were in future given power to act.[1271] The law regarding the religious ceremony was made more flexible in 1826. "If there be no priest or minister of a religious sect domiciled in any one of the parishes of this state," it was then enacted, "the judge of that parish, if required by either of the parties, is authorized to send to any priest or minister residing in a neighboring parish a commission to come and celebrate marriages in the parish" where the judge has his jurisdiction.[1272] "Regularly commissioned notaries of the state" for the parish of West Feliciana were authorized to act in 1850.[1273] As the law now stands, the ceremony may be performed by these notaries; by justices of the peace and parish judges, within their respective parishes; by judges of the district courts; and by any minister or priest, "whether a citizen of the United States or not."[1274]
[Footnote 1270: Act of March 17, 1809: LISLET, op. cit., II, 13.]
[Footnote 1271: LISLET, op. cit., II, 14.]
[Footnote 1272: Civil Code (1853), 15.]
[Footnote 1273: Ibid.]
[Footnote 1274: Revised Code (1888), 62, 63. For the clause regarding citizenship see Acts (1855), 128. The present powers of justices and parish judges are determined by Acts (1864), 50. For the power of district judges see WRIGHT, Report, 53.]
The first matrimonial legislation of Texas coincides with the earliest experiment in organized rule by settlers from the United States in that Mexican province. By an ordinance of January 16, 1836, adopted by the provisional government, all "judges, alcades, commissarios, and regularly accredited ministers of the gospel of whatever denomination," are given "power to celebrate the rites of matrimony in their respective municipalities, which shall be done in the presence of not less than three disinterested witnesses." Certificates are to be made by the person officiating, attested by one or more witnesses, one of which is to be "given to the bride, and the other filed with the archives of the municipality." Marriages hitherto "celebrated by bond or otherwise, under the heretofore existing laws," are declared valid; "provided that all officers who have attended to the same, shall on application of either party, or the friend of either party, file the bond or other evidence of such marriages with the archives and records of their respective municipalities." This must be done in ten days after the application, under penalty of one hundred dollars to the injured person, and the same fine from time to time every ten days till the papers are filed.[1275]
[Footnote 1275: _Ordinances and Decrees of the Consultation, Provisional Government of Texas, and the Convention Which Assembled at Washington March 1, 1836_ (1838), 137, 138; also in DALLAM, Digest of the Laws of Texas (1845), 167.]
The "Republic of Texas" was soon after set up by the settlers; and one of its first legislative measures was a general marriage law. "Whereas," runs this noteworthy act, which reveals the embarrassments of American pioneer life, "in many parts of Texas no person legally authorized to celebrate the rites of matrimony has existed; and whereas, from that cause many persons have resorted to the practice of marrying by bond, and others have been married by various officers of justice not authorized" to do so; "and whereas, public policy and the interests of families require some legislative action on the subject:" therefore it is enacted that "all persons who have so intermarried" are authorized to go before any of the persons provided for in this act, "and publicly solemnize the rites of matrimony; and all marriages so solemnized are ... declared of legal and binding effect, from the period the persons had previously intermarried agreeably to the custom of the times," and their issue is made legitimate. But the benefits of the act are conditioned on there being no legal bar to the marriage, and on celebration within six months from its passage.[1276] For the future, all ordained ministers, judges of the district courts, justices of the county courts, and all justices of the peace of the several counties of the republic may perform the marriage ceremony.[1277] The present law of the state is identical with the statute of the republic just cited, except that Jewish rabbis are also expressly empowered to join persons in wedlock.[1278]
[Footnote 1276: Act of June 5, 1837: _Laws of the Republic of Texas_ (1838), 233.
"When persons have intermarried as aforesaid agreeably to the customs of the country and either the husband or wife has died previous to the passage of this law," then such marriages are legal and binding and the issue are legitimized, provided the parties were living together as man and wife "at the said death of either party."--Ibid., 233, 234.]
[Footnote 1277: Laws of the Rep. of Tex., 234; also DALLAM, Digest, 167, 168. An act of Feb. 5, 1841, validates marriages previously made by "bond": Laws of Rep. of Tex. (5th Cong.), 176.]
[Footnote 1278: Act of April 13, 1891: Gen. Laws of Tex. (1891), 96; being the same except as to Jewish rabbis, as act of Nov. 1, 1866: Laws (1866), 72, and Revised Civil Stat. (1888), I, 877; Ann. Civ. Stat. of Tex. (1897), I, 1081.]
In only three instances, among the twenty-one commonwealths and territories under discussion, are witnesses required by statute at the celebration; although in Maryland, in the case of Quaker weddings, the contracting parties are to sign a "certificate to the effect that they have agreed to take each other for husband and wife," which certificate must be attested by twelve persons present, and within sixty days entered in the records of the society to which one of them belongs, or else in some court in the county or city where the marriage takes place.[1279] But in Louisiana, by the act of 1807, all contracts are to be solemnized "in the presence of at least three witnesses, each of whom shall have attained the age of majority;"[1280] and this provision is still retained in the law.[1281] At least two adult competent witnesses are required in Oklahoma; and the same number in Porto Rico.[1282]
[Footnote 1279: Code of Md. (1888), I, 975.]
[Footnote 1280: LISLET, General Digest (1828), II, 8.]
[Footnote 1281: VOORHIES AND SAUNDERS, Revised Code of La. (1888), 63; MERRICK, Rev. Civil Code (1900), 25.]
[Footnote 1282: Session Laws of Okla. (1897), 210; WILSON, Stat. of Okla. (1903), I, 858. Earlier one witness was sufficient: Stat. of Okla. (1893), 669, 670. Cf. Rev. Stat. and Codes of Porto Rico (1902), 810.]
Nowhere is any form of words prescribed for a legal celebration,[1283] although in several cases the ceremony is negatively mentioned. Thus, in Tennessee, it is expressly stated that no formula is requisite, except that the parties "shall respectively declare, in the presence of the minister or officer, that they accept each other as man and wife."[1284] The Oklahoma law requires marriage to be "contracted by a formal ceremony" in the presence of two witnesses.[1285] The consent of persons "who may be lawfully married," declares the North Carolina statute, "presently to take each other as husband and wife, freely, seriously, and plainly expressed by each in the presence of the other and in the presence" of a minister or justice, and the consequent declaration by him that they "are man and wife, shall be a valid and sufficient marriage."[1286] By the law of Arkansas and Indian Territory a marriage may be solemnized by a clergyman according to the forms and customs of his society; or by a civil officer in such a way as he "shall deem most appropriate."[1287] Mississippi has adopted a similar provision.[1288] In Arizona, by an act of 1887, "all persons who at any time heretofore have lived together as husband and wife, and who shall continue to live together" for one year after this law takes effect, or until one of the parties shall die, if within the year, "shall be considered as having been lawfully married and their children legitimate."[1289] Two years later the Arizona legislature produced the following extraordinary "blanket" provision. It is most generously enacted that "every ceremony of marriage or in the nature of a marriage ceremony of any kind, in this Territory, whether either or both or more of the parties to such ceremony be lawfully competent to be the subjects of such marriage or ceremony or not, shall be certified by a certificate stating the fact and nature of such ceremony, the full name of each of the parties concerned, and the full name of every officer, priest, minister, and person by whatever style or designation called or known, in any way taking part in the performance of such ceremony, which certificate shall be drawn up and signed by the parties to such ceremony and by every officer, priest, minister, and person taking part" therein, and be filed for record within twenty days.[1290]
[Footnote 1283: It appears to be assumed in the earlier statutes of Georgia that the celebration before a minister or magistrate is to be according to the Anglican ritual: COBB, Analysis of the Stat. of Ga. (1846), 292, 293.]
[Footnote 1284: Code (1884), 609; ibid. (1896), 1039.]
[Footnote 1285: Session Laws of Okla. (1897), 210.]
[Footnote 1286: Code (1883), I, 689; Laws (1871-72), chap. 193, sec. 3.]
[Footnote 1287: Digest (1894), 1127; see Rev. Stat. (1838), 537; Ann. Stat. of Ind. Ter. (1899), 509.]
[Footnote 1288: WRIGHT, Report, 57.]
[Footnote 1289: Rev. Stat. of Arizona (1887), 372; ibid. (1901), 810.]
[Footnote 1290: Act of March 21, 1889: Arizona Session Laws (1889), 58. This provision seems not to be retained in the _Rev. Stat._ of 1901.]
The usual penalties are generally prescribed for unauthorized solemnization.[1291] In most cases a marriage is not expressly declared void for neglect of legal formalities; but the Mississippi statute makes a license essential to a valid contract;[1292] while, on the other hand, in Tennessee the validity of a marriage is not affected by the omission of the baptismal name of either person in the license and the use of a nickname instead, if the parties can be identified and have cohabited as man and wife.[1293] Furthermore, it is provided in Virginia, West Virginia, Kentucky, and Georgia that celebration before an unauthorized person professing to have legal power shall not invalidate a contract entered into in good faith by the parties.[1294] Marriages valid at common law are still good in Florida.[1295] It is curious to find the statute of 32 Henry VIII., chap. 38, for marriages to stand notwithstanding pre-contracts--repealed for England under Edward VI.--kept in full force by the laws of South Carolina at least until 1873, and in those of Kentucky for some years after the beginning of the century.[1296]
[Footnote 1291: In West Virginia the penalty is confinement in jail for not exceeding one year, or a fine of $500, or both: Code (1900), 972; in Virginia it is not exceeding one year in jail and a fine of not more than $500: Code (1887), 899; in Kentucky, not exceeding three years in the penitentiary, and the same penalty for falsely personating father, mother, or guardian: Kentucky Stat. (1894), 766; ibid. (1899), 824.]
[Footnote 1292: Miss. Ann. Code (1892), 679.]
[Footnote 1293: Tenn. Code (1884), 610, 611; ibid. (1896), 104.]
[Footnote 1294: Code of Va. (1887), 555; Code of W. Va. (1900), 655; Kentucky Stat. (1894), 763, 764; Code of Ga. (1882), 393.]
[Footnote 1295: See Daniel v. Sams, 17 Florida Rep., 487, an interesting case involving a slave marriage.]
[Footnote 1296: LITTELL, Kentucky Stat., II (1810), 571, 572; COOPER, Stat. at Large of S. C., II, 475, 476; BREVARD, Alphabetical Digest, II (1814), 41-44; Rev. Stat. (1873), 481.]
After the Civil War the South found itself confronted by a very serious problem--that of the social and legal status of several millions of freedmen. The unions of slave men and women had existed, of course, only at the will of the master. They had no legal force at all. It became necessary, therefore, to determine and to recognize the marriages of the newly enfranchised negro population. For this purpose in many of the southern states special statutes were enacted. In Virginia it was provided that when colored persons prior to February 27, 1866, agreed to occupy the relation of husband and wife, and were then cohabiting as such, "whether the rites of matrimony had been celebrated or not," they shall be deemed husband and wife; and all their children shall be legitimate, whether born before or after that date; as were also the children of such parents who had then ceased living together.[1297] Similar laws were passed in West Virginia, Tennessee, South Carolina, Texas, Florida, and Arkansas.[1298] There is a like provision for the District of Columbia.[1299] By the Maryland act all reputed marriages of colored persons before March 22, 1867, are validated, if the parties establish before a justice of the peace the fact of the marriage, of which then a certificate is directed to be placed on record.[1300] The Georgia law is unique. Persons of color living together as husband and wife, March 9, 1866, are to sustain that legal relation to each other, unless a man then had two or more reputed wives, or a woman two or more reputed husbands. In such event the man shall immediately select one of his reputed wives, with her consent, or the woman one of her reputed husbands, with his consent; and the ceremony of marriage between these two shall be performed, under severe penalty for refusal.[1301]
[Footnote 1297: Code of Va. (1887), 556.]
[Footnote 1298: Colored persons cohabiting as husband and wife before Feb. 28, 1867, were recognized as such in West Virginia: Code (1900), 655; similarly in Tennessee: Code (1884), 609, 610; before March 12, 1872, in South Carolina: Rev. Stat. (1894), I, 753; when so living on Aug. 15, 1870, in Texas: _Rev. Civil Laws_ (1888), I, 879; before Dec. 14, 1866, in Florida: Acts and Resolves (1866), 22, Rev. Stat. (1892), 681; before Dec. 20, 1866, in Arkansas: Digest (1894), 1128.]
[Footnote 1299: MOORE, Code of D. C. (1902), 268.]
[Footnote 1300: Code of Md. (1888), II, 977, 978.]
[Footnote 1301: Subject to prosecution and punishment for fornication, or fornication and adultery, for refusal: _Code of Ga._ (1882), 356, 357. Cf. Acts (1865-66), 239, 240; Acts (1866), 156, 157; and also 61 Georgia Reports, 306, and 40 Georgia Reports, 244.]
b) Forbidden degrees: void and voidable marriages.--Everywhere in the region under discussion, except perhaps in Louisiana, according to the spirit, if not by the letter, of the laws, marriage appears as a relation of status as well as of contract. Only in a few instances, however, is it actually defined or are its requirements formally laid down. Thus, in Arkansas, Indian Territory, Oklahoma, Missouri, and New Mexico it is a civil contract to which the consent of parties capable in law of contracting is necessary.[1302] The same in substance is true of the statute of Louisiana, whose rhetorical Gallic phrases have not been essentially changed since 1807. "The law considers marriage in no other view than as a civil contract.... Such marriages only are recognized by law as are contracted and solemnized according to the rules which it prescribes." Since they are thus considered by the law merely as civil contracts, "it sanctions all those marriages where the parties, at the time of making them, were (1) willing to contract; (2) able to contract; (3) did contract pursuant to the forms and solemnities prescribed.... No marriage is valid to which the parties have not freely consented; consent is not free, (1) when given to a ravisher, unless it has been given by the party ravished, after she has been restored to the enjoyment of liberty; (2) when it has been extorted by violence; (3) when there is a mistake respecting the person whom one of the parties intended to marry."[1303] By the Porto Rico code "marriage is a civil institution, originating in a civil contract whereby a man and a woman mutually agree to become husband and wife and to discharge toward each other the duties imposed by law. It is valid only when contracted and solemnized in accordance with provisions of law."[1304] In Georgia, "to constitute a valid marriage ... there must be (1) parties able to contract; (2) an actual contract; (3) consummation according to law." To constitute an actual contract "the parties must be consenting thereto voluntarily, and without any fraud practiced upon either. Drunkenness at the time of marriage, brought about by art or contrivance to induce consent," is held to be a fraud.[1305]
[Footnote 1302: Digest of Ark. (1894), 1125; _Ann. Stat. of Ind. Ter._ (1899), 507; the same in Rev. Stat. (1838), 553; Rev. Stat. of Mo. (1899), I, 1035: Compiled Laws of N. M. (1897), 405.
But the Oklahoma statute of 1893 adds: "Consent alone will not constitute a marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations."--Statutes (1893), 668. By the act of 1897 for this passage is substituted: "and the marriage relation shall only be entered into, maintained, or abrogated as provided by law."--Session Laws (1897), 208.]
[Footnote 1303: VOORHIES AND SAUNDERS, Revised Code of La. (1888), 60, 61; cf. the act of 1807, in _Digest of Civil Laws Now in Force_ (1808), 24; or LISLET, Gen. Digest (1828), 4; or Code Civil (1825), 80-82.]
[Footnote 1304: Rev. Stat. and Codes of Porto Rico (1902), 805.]
[Footnote 1305: Code of Ga. (1882), 392. Cf. the law of North Carolina above cited: Code of N. C. (1883), I, 689.]
The age of consent to marriage is prescribed in fifteen of these states and territories; and, as in other parts of the country, it is often far too low, particularly in the case of girls. For males it is eighteen in Arizona, New Mexico, Oklahoma, Porto Rico, and West Virginia; seventeen in Alabama, Arkansas, Indian Territory, and Georgia; sixteen in North Carolina, Texas, and the District of Columbia; and fourteen in Kentucky, Louisiana, and Virginia. For females it is sixteen in Arizona, Porto Rico, and West Virginia; fifteen in New Mexico and Oklahoma; fourteen in Alabama, Arkansas, Indian Territory, Georgia, North Carolina, Texas, and the District of Columbia; and only twelve in Kentucky, Louisiana, and Virginia.[1306]
[Footnote 1306: For both sexes see Code of Ala. (1897), 829; Digest of Ark. (1894), 1125; also Rev. Stat. (1835), 535; Ann. Stat. of Ind. Ter. (1899), 507; Rev. Stat. of Ariz. (1887), 371; Code of Ga. (1896), II, 222; Kentucky Stat. (1899), 822; Rev. Stat. and Codes of Porto Rico (1902), 807; Rev. Code of La. (1888), 61; MERRICK, _Rev. Civ. Code of La._ (1900), 23; Session Laws of Okla. (1897), 208; WILSON, Stat. of Okla. (1903), I, 857; Comp. Laws of N. M. (1897), 407; Code of N. C. (1883), I, 688; Rev. Civil Stat. of Tex. (1888), I, 878 (law of 1837); Ann. Civil Stat. of Texas (1897), I, 1082; Code of Va. (1887), 560, 561; Acts of W. Va. (1897), chap. 34; Code of W. Va. (1900), 661; MOORE, Code of D. C., 265. Cf. WRIGHT, Report, 29.]
Eighteen commonwealths of the group and the District of Columbia have fixed, for both sexes, the age below which the consent of parent or guardian is necessary to a legal contract. For males it is twenty-one in Alabama, Arizona, Arkansas, Florida, Indian Territory, Oklahoma, Kentucky, Louisiana, Maryland, Mississippi, Missouri, New Mexico, Porto Rico, Texas, Virginia, West Virginia, and the District of Columbia; eighteen in North Carolina; and but sixteen in Tennessee.[1307]
[Footnote 1307: By inference from the law below cited.]
For females, it is twenty-one in Florida, Kentucky, Louisiana, Porto Rico, Virginia, and West Virginia; eighteen in Alabama, Arkansas, Indian Territory, Mississippi, Missouri, New Mexico, North Carolina, Oklahoma, and Texas; and only sixteen in Arizona, Maryland, Tennessee, and the District of Columbia.[1308] The age for females is eighteen in Georgia; but by the statutes of that state parental consent does not seem to be required for male minors, nor for females when publication is by banns.[1309] In effect, the same appears to be the case in South Carolina, since a penalty is affixed for marrying a female under sixteen without parental consent; while for male minors such consent is not prescribed.[1310] But in Alabama, Florida, Maryland, Virginia, West Virginia, and the District of Columbia, it should be noted, parental consent is not required, if the minor has been previously married. In several cases the statutes contain important special provisions regarding the marriage of minors which modify the general rule laid down as to age and parental consent. By the law of Alabama, before the issuance of a license for the marriage of persons under the ages of twenty-one and eighteen respectively, the judge of probate, in addition to parental consent, "must also require a bond to be executed in the penal sum of two hundred dollars," payable to the state, "with condition to be void if there is no lawful cause why such marriage should not be celebrated."[1311] In Kentucky, if a female under sixteen marry without legal consent, a court in her county having general equity jurisdiction may commit her estate to a receiver, who, under direction of the court, may pay out the profits, after due compensation, to her separate use during infancy. At the age of twenty-one, the estate is to be delivered to her, unless the court thinks fit to continue it longer in the receiver's hands.[1312] Under similar conditions, in West Virginia the county court is empowered, "upon petition of her next friend," to commit the estate of a girl between twelve and fourteen years of age to a receiver, who is to give bond for the faithful performance of his trust.[1313] A Tennessee law of 1899 prohibits the issue of a license to persons under sixteen years, without written consent of parent or guardian.[1314] In Porto Rico marriage under the age of consent "shall, nevertheless, be valid ipso facto and without an express declaration, if one day after having arrived at the legal age of puberty the parties shall have lived together without the representative of either of them having brought suit against its validity, or if the woman shall have conceived before the legal age of puberty or before having established such suit."[1315]
[Footnote 1308: For both sexes see Code of Ala. (1897), 828; Rev. Stat. of Ariz. (1887), 371; ibid. (1901), 810; Digest of Ark. (1894), 1129, 874; Ann. Stat. of Ind. Ter. (1899), 413, 510; Rev. Stat. of Fla. (1892), 679; Stat. of Ky. (1899), 824; Session Laws of Okla. (1897), 208, 209; Rev. Code of La. (1888), 61, and the same in 1807, LISLET'S GENERAL DIGEST (1828), II, 5; Maryland Code (1888), I, 976, or in Laws (1886), chap. 497; Ann. Code of Miss. (1892), 677; Rev. Stat. of Mo. (1899), I, 1037; Compiled Laws of N. M. (1897), 405, 406, 407; Rev. Civil Stat. of Tex. (1888), I, 378; Ann. Civil Stat. of Tex. (1897), I, 1082; Code of Va. (1887), 555; Code of W. Va. (1900), 654; Compiled Laws of D. C. (1894), 273; Acts of Tenn. (1899), 36.]
[Footnote 1309: Code of Ga. (1882), 393; ibid. (1896), II, 223. Cf. WRIGHT, Report, 30.]
[Footnote 1310: Rev. Stat. of S. C. (1894), II, 347, 348.]
[Footnote 1311: Code of Ala. (1897), I, 828, 829; cf. WRIGHT, Report, 29.]
[Footnote 1312: Kentucky Stat. (1899), 825. But the marriage of an infant without consent is not for that reason void: Canon v. Alsbury, 1 A. K. MARSHALL, Kentucky Reports, 76.]
[Footnote 1313: Code of W. Va. (1900), 656.
The Rev. Code of S. C. (1873), 441, contains the provision that if any "woman, child or maiden, being above the age of twelve years, and under the age of sixteen years, do at any time consent or agree to any contract of matrimony," against the will or without the knowledge of parent or guardian, "by secret letters, messages, or otherwise," she shall forfeit her estate, including lands, tenements, and hereditaments, "to the next of kin who next would inherit, during the life of the offender, then to the one who would have inherited had there been no such child."]
[Footnote 1314: Acts (1899), 36.]
[Footnote 1315: Rev. Stat. and Codes of Porto Rico (1902), 806.]
The Romano-French origin of the Louisiana laws is in no way more plainly revealed than in the elaborate provisions regarding the Family Council. This institution is given a prominent place in the regulation of domestic affairs; and, in the United States, it is peculiar to Louisiana. It has always exercised jurisdiction in approving the marriage of minors; and in appointing "tutors" or guardians; while at present its advice may be required in the disposal of children of divorced parents. By the act of 1807 consent of the parents is necessary to the marriage of minors of either sex under twenty-one years of age. In case of disagreement the father's approval is sufficient. If either parent be dead or incapable of consenting, the other is authorized to act, "although he or she may have contracted a second marriage." But if the parents are both dead or incapable, the grandfathers and grandmothers "shall supply their places as to this consent, and in case of difference of opinion, a majority shall prevail;[1316] when they are equally divided in their opinions, the council of the family is invoked to decide." The council is likewise called in when parents and grandparents are all dead; but its decision must be made within one month after it is convoked and consent requested, otherwise the marriage may be celebrated. In all cases, whether by parents, grandparents, or council, approval is to be given or refused in presence of the parish judge. The consent must be drawn up in writing by that officer in presence of two witnesses and the persons consenting; and by all of these, including the magistrate, it must be signed. A certificate of consent is made out in duplicate: one copy being retained by the judge and the other given to the persons whose marriage is thus approved. In case of consent by the council the certificate "shall state the names of those of the family who assembled, their professions and places of residence, and which of them consented," together with "the names of the parties intending to marry."[1317]
[Footnote 1316: Probably the "majority" of the grandparents of the two persons is meant.]
[Footnote 1317: LISLET, General Digest (1828), II, 5, 6; _Civil Laws Now in Force in the Territory_ (1808), 62.]
The regulation of consent is simplified under the present law, and the patriarchal features have in part disappeared. "The minor of either sex ... must have received the consent of his father and mother or of the survivor of them; and if they are both dead, the consent of his tutor." But the family council, or "meeting" as now called, still has important functions; and its composition and proceedings are carefully prescribed. In all cases the meeting is composed of "at least five relations, or in default of relations, friends of him in whose interests they are called upon to deliberate. These relations or friends must be selected from among those domiciled in the parish in which the meeting is held, or in a neighboring parish," provided it be at a distance of not more than thirty miles. "The relations shall be selected according to their proximity, beginning with the nearest;" and the "relation" shall be preferred to the "connection" of the same degree; while among relations of the same degree the eldest shall be preferred. No person who has "interests conflicting with those of a minor" is competent to serve in the meeting, "although one of the nearest relations." Members of the meeting are appointed by the parish judge: and it must be held "before the recorder of the parish, a justice of the peace, or notary public appointed by the judge for the purpose." A meeting may be called for a fixed hour on three days' notice; and the members are to take oath to give advice according to their best knowledge.[1318]
[Footnote 1318: Rev. Civil Code of La. (1888), 62, 91, 92; VOORHIES, Rev. Laws (1884), 236, 237; Rev. Laws (1897), 393. Since 1807 the council (or meeting) has been composed of at least five relatives or friends, summoned by the judge, and held before an officer, practically as required by the present law: see Civil Laws Now in Force in the Territory (1808), 62. For failure to attend a meeting, when cited, there is a fine of $20, in the discretion of the judge to be applied to the expenses of the meeting. In place of absentees "friends" may be appointed: Rev. Civil Code (1888), 92.]
The laws of the southern and southwestern states regarding the forbidden degrees of lineal and collateral consanguinity are far from uniform in their details; but they are determined by the same general principles as those of New England already considered. Ascendants and descendants are, of course, always included.[1319] In the side lines prohibition does not usually extend to first cousins. But in Arizona, Oklahoma, Indian Territory, Arkansas, Louisiana, and Missouri these may not legally marry;[1320] and this restriction was also maintained in Georgia until 1865.[1321] By the law of Porto Rico collaterals by consanguinity may not marry within the fourth degree; but the court may, for good cause, on petition of an interested person, waive this impediment.[1322] Furthermore, in every place, except in Tennessee, either expressly or by implication, marriage between aunts and nephews or uncles and nieces is forbidden.[1323] With respect to affinity it is not surprising to find still greater conservatism in communities where the influence of the English church had originally been so strong. Marriage with a brother's widow or a deceased wife's sister is forbidden by the Virginia statute of 1788.[1324] The prohibition as to the latter does not seem to have been entirely removed until 1849;[1325] while with regard to the former it lingered until 1860.[1326] In Maryland the law containing these two restrictions and likewise prohibiting marriage with a deceased husband's brother or a deceased sister's husband was repealed as early as 1790.[1327] A statute of Louisiana, in 1827, declares that, since the new civil code (1825) had abolished impediments on account of affinity existing "under the Spanish laws," and because even before the promulgation of that code "some doubts were entertained whether the Spanish laws on this subject were still in force," therefore to prevent litigation "all marriages between brothers-in-law and sisters-in-law contracted before the code went into effect shall be held valid."[1328] The law of Georgia which for many years forbade wedlock with a sister-in-law or a brother-in-law seems also to have been abrogated.[1329] Finally it may be noted that by the rule still existing in Alabama and Mississippi marriage with a step-mother or a step-father is prohibited; and the same is true of Georgia, Kentucky, Maryland, South Carolina, Tennessee, Texas, Virginia, West Virginia, and the District of Columbia, where, in addition, one is not permitted to contract matrimony with a father-in-law or a mother-in-law.
[Footnote 1319: Rev. Stat. of Fla. (1892), 820, for the first time expressly prohibiting marriage within "Levitical consanguinity;" but probably earlier the law intended the same restriction: MCCLELLAN, Digest of the Laws of Fla., chap. 59, sec. 8; WRIGHT, Report, 32.]
[Footnote 1320: Rev. Stat, of Ariz. (1887), 371; ibid. (1901), 809; Digest of Ark. (1894), 1125, 1126; Rev. Stat, of Mo. (1899), I, 1036; Ann. Stat, of Ind. Ter. (1899), 507; Session Laws of Okla. (1897), 208; Acts of La. (1900), 188.]
[Footnote 1321: Acts (1865-66), 244, removing penalty for marriage of first cousins since Dec. 11, 1863, and repealing conflicting laws.]
[Footnote 1322: Rev. Stat. and Codes of Porto Rico (1902), 806, 807.]
[Footnote 1323: Assuming that this relationship is included in the restrictions of the Levitical law which is in force in Georgia, and probably also in Florida: see MCCLELLAN, Digest of the Laws of Fla., chap. 59, sec. 8; and compare WRIGHT, Report, 32.]
[Footnote 1324: Act of Oct., 1788: HENING, Statutes, XII, 688, 689. Persons married contrary to the act shall be "separated by the definitive sentence or judgment of the high court of chancery."]
[Footnote 1325: In 1827 the law forbidding marriage with a deceased wife's sister was considerably relaxed. The parties are no longer to be separated, but to be "deemed guilty of a misdemeanor, to be prosecuted by information, or indicted in the Superior Court of Law;" and on conviction they are to be punished by such fine or imprisonment or both, as the jury may determine: Acts (1826-27), 22. This law was still in force in 1841: TATE, Digest (2d ed.), 500, where the editor cites Vaughan's opinion in Hill v. Good, 2 Virginia Cases, 61. But the restriction does not appear in Code of Va. (1849), 470, 471 (degrees). Cf. LEIGH, 17.]
[Footnote 1326: Act of March 15, 1860: Acts of the Assembly (1859-60), 188, 189. In West Virginia until later a man was not permitted to marry his brother's widow: see Acts (1872-73), chap. 161, p. 503, where the restriction is removed.]
[Footnote 1327: Laws of Md. (1790), chap. xx, repealing the act of 1777, chap. 12, sec. 1, Laws of Md., 1763-87 (1787), where these marriages are "void."]
[Footnote 1328: Louisiana Acts (1827), 4.]
[Footnote 1329: This dual restriction appears in COBB'S Analysis of Stat. of Ga. (New York, 1846), 290, 291; but it does not seem to be retained in Code of Ga. (1861), 331 (prohibited degrees of affinity), and there is no later statute on the subject.]
According to the rule generally prevailing marriage within the forbidden degrees is void or voidable;[1330] the children are often declared illegitimate, either absolutely or when born after annulment; and severe penalties are imposed for violation of the law.[1331] Likewise, as elsewhere in the country, marriages are declared void or voidable for a variety of reasons other than the forbidden degrees. Here the greatest confusion and uncertainty exist; and there is most urgent need of a strong effort to bring the laws of the different states into harmony in this regard. The evil is aggravated through the fact that transgressions which render a contract invalid in one state may in a neighboring community merely subject the offender to fine or imprisonment. Thus in Virginia, West Virginia, and apparently also in Georgia a marriage is void or voidable when celebrated out of the state by residents who seek to avoid the requirements of their own law.[1332] In Maryland under like conditions a fine is imposed[1333] and in the District of Columbia such a marriage is illegal and may be declared void.[1334] On the other hand, in Kentucky, when persons there resident "shall marry in another state, such marriages shall be valid ... if valid ... where solemnized."[1335] The statutes of the other fifteen states and territories, except when the motive is union within the forbidden degrees,[1336] appear to be entirely silent on the subject of clandestine marriage.
[Footnote 1330: In Alabama such marriages are incestuous and must be annulled by the court on conviction; but the issue born before annulment is legitimate: Code (1897), 828; in Arizona, Arkansas, Georgia, Indian Territory, Kentucky, Mississippi, and New Mexico they are incestuous and void or voidable after decree: Rev. Stat. of Ariz. (1887), 371; Digest of Ark. (1894), 1126; also Rev. Stat. of Ark. (1838), 536; Code of Ga. (1896), II, 222; Kentucky Stat. (1894), 763; Comp. Laws of N. M. (1897), 406; Ann. Code of Miss. (1892), 677. In Maryland, District of Columbia, Missouri, and North Carolina they are absolutely void or voidable after decree: Code of Md. (1888), I, 973, 974; Comp. Laws of D. C. (1894), 271; Rev. Stat. of Mo. (1899), I, 1036; Code of N. C. (1883), I, 688, 689. But the laws of New Mexico, while declaring these marriages "absolutely void," provides in sec. 1430 that they shall not be "declared void except by decree of the district court;" and the North Carolina act has the condition that no marriage followed by cohabitation and birth of issue shall be declared void after the death of either of the parties for any of the causes stated, except in case of unions of whites with negroes or Indians to the third generation. In Virginia prohibited marriages, if solemnized in the state, are void after decree, or when within the forbidden degrees, from the time of conviction for incest; and the law of West Virginia is similar: Code of Va. (1887), 560; Code of W. Va. (1891), 656, 661. See also Code of Tenn. (1884), 608; Rev. Stat. of Fla. (1892), 820; Rev. Civil Code of La. (1888), 61; Rev. Stat. of S. C. (1894), I, 751; and compare WRIGHT, Report, 35-45.]
[Footnote 1331: For example, in Virginia the penalty for marriage within the forbidden degrees is imprisonment not exceeding six months or a fine of not more than $500: Code (1887), 898; in West Virginia, one or both of these penalties: Code (1900), 972; in Georgia, imprisonment in the penitentiary from one to three years: Code (1896), III, 116; in Maryland incest is a felony punishable by one to ten years' imprisonment at the discretion of the court: Code (1888), I, 511; in Missouri the penalty for the same crime is not exceeding seven years in the penitentiary: Rev. Stat. (1889), II, 907; in the District of Columbia, for marriage within the "three degrees of lineal direct consanguinity, or within the first degree of collateral consanguinity," the penalty for each is "five hundred pounds current money ($1333.33-1/3);" and within any of the other forbidden degrees of consanguinity or affinity, it is "two hundred pounds current money ($533.33-1/3)": Comp. Stat. of D. C. (1894), 272.]
[Footnote 1332: Code of Va. (1887), 560; Code of W. Va. (1891), 612, 918; Code of Ga. (1882), 287, 288.]
[Footnote 1333: Formerly in Maryland any person marrying out of the state to evade the law was fined 500 pounds: KILTY, Laws, 1777, chap. 12, sec. 6. Now each of the persons must pay $100: Code (1888), 523.]
[Footnote 1334: MOORE, Code of D. C. (1902), 266.]
[Footnote 1335: Kentucky Stat. (1894), 764; ibid. (1901), 823.]
[Footnote 1336: In Mississippi marriages out of the state, to avoid penalties of forbidden degrees, are declared void: Ann. Code of Miss. (1892), 677.]
Bigamous marriages are invalid in Florida, Georgia, Kentucky, Louisiana, Maryland, District of Columbia, Mississippi, Missouri, North Carolina, South Carolina, Tennessee, Virginia, and West Virginia; but in Alabama, Arizona, Arkansas, Indian Territory, and Texas they are only prohibited or made punishable; while the legislature of New Mexico attaches a penalty for the offense of two to seven years in the penitentiary.[1337] Marriages obtained by fraud or by force, menace, or duress are dealt with in a similar spirit. They are prohibited or punishable in Alabama, Arizona, Mississippi, Missouri, Tennessee, and Texas;[1338] void or voidable in District of Columbia, Arkansas, Indian Territory, Georgia, Kentucky, and Louisiana;[1339] fraudulent contract is a ground of divorce in Oklahoma; while the statutes of the remaining states are either entirely silent, as in the case of Florida, Maryland, New Mexico, Virginia, and West Virginia; or such marriages are void at common law where no statute exists; or under general statutory provisions, as seems to be the case in North Carolina and South Carolina.[1340] Various other grounds for invalidating a marriage are here and there assigned. Such is lack of understanding, in North Carolina and Oklahoma; idiocy, in District of Columbia, Kentucky, and South Carolina; lunacy, insanity, or an unsound mind, in the two states last named, and also in Georgia, Virginia, West Virginia, and the District of Columbia; want of legal age of consent, in Alabama, Arkansas, Georgia, Kentucky, New Mexico, North Carolina, Oklahoma, Texas, and West Virginia; want of physical competence, in Arizona, Arkansas, Indian Territory, Georgia, North Carolina, Texas, Virginia, and West Virginia;[1341] or lack of proper solemnization, in Kentucky.[1342] But in these states as elsewhere, it must be remembered, the statutes are supplemented by the common law.
[Footnote 1337: See the lists in WRIGHT, Report, 35-45. On these marriages I have not found changes since 1887, the date of that compilation.
In Virginia bigamy was formerly punished by death: see the act of 1792, in Acts of Gen. Assem. (1794), 205; now the penalty is three to five years' imprisonment: Code (1887), 680; in West Virginia it is one to five years in the penitentiary: Code (1891), 918; in Florida, not exceeding five years in state's prison, or not exceeding one year in the county jail, or a fine of not more than $500: Rev. Stat. (1892), 820; in Missouri, not exceeding five years in the penitentiary, or less than six months in the county jail, or not less than $500, or by both a fine of not more than $100 and imprisonment in the county jail for not less than three months: Rev. Stat. (1899), I, 608, 609. Bigamy is prohibited in Rev. Civil Stat. of Tex. (1888), I, 877; WHITE, Penal Code (1901), 188; Digest of Ark. (1894), 1126.]
[Footnote 1338: In Texas they are prohibited and punished "when the female is abducted or forced into marriage;" but they are voidable when the license has been fraudulently obtained: WRIGHT, Report, 43; Rev. Civil Stat. of Tex. (1888), I, 877, note; see Robertson v. Cole, 12 Texas, 356. Cf. WILSON, Supp. to Criminal Statutes (1900), 242, 243.]
[Footnote 1339: See, for example, Kentucky Stat. (1894), 764; ibid. (1901), 822; Digest of Ark. (1894), 1126; MOORE, Code of D. C. (1902), 265.]
[Footnote 1340: In North Carolina marriages are void when either person is "incapable of contracting from want of will or understanding": Code (1883), I, 688, 689; in South Carolina they are void or voidable when lacking consent of either party or for "any other cause going to show that at the time said supposed contract was made it was not a contract," provided not consummated by cohabitation: Rev. Stat. (1894), I, 752.]
[Footnote 1341: Kentucky Stat. (1894), 763; Rev. Sta., of S. C. (1894), I, 750-52; Code of Ga. (1896), II, 222; _Code of Va._ (1887), 560; Code of W. Va. (1891), 612; _Code of N. C._ (1883), I, 688, 689; Digest of Ark. (1894), 1126; _Code of Ala._ (1896), I, 828; Comp. Laws of N. M. (1897), 406, 407.]
[Footnote 1342: In Kentucky marriages are void or voidable when not solemnized or contracted in the presence of an authorized person or society; but they are not so invalid if consummated with the belief of the parties or either of them that they have been lawfully married: WRIGHT, Report, 39.
The Louisiana act of 1807 makes one who is deaf and dumb from "nativity" incapable of marriage, "unless it be previously proved to the satisfaction of the judge ... that such person is capable of giving a rational consent." So also "criminals definitively sentenced to death" are incapable until pardoned; and "persons sentenced to whipping, imprisonment, pillory, or other infamous punishment" are prohibited from marrying, "until such punishment has been inflicted, or the offender pardoned."--LISLET, Gen. Digest (1828), II, 4, 5.]
Very naturally, in the region where slavery existed before the Civil War a horror of intermarriage between whites and blacks is everywhere evinced by the statute-maker. Accordingly, every state and territory in the group under examination--except New Mexico, Porto Rico, and the District of Columbia--has enacted rigorous laws to prevent miscegenation. In Alabama and Tennessee such marriages are prohibited "to the third generation" under severe penalties;[1343] in all the other states they are declared void or voidable, and usually the issue is absolutely illegitimate. Unfortunately, the statutes on this subject show a deplorable lack of uniformity. They are divergent in their most important provisions. Their language is not always clear, and even when it is technically exact, the occasional use of vulgar fractions to designate the degree of African blood interdicted must often put its certain interpretation far beyond the people whom it most vitally concerns. Thus in Arkansas, Indian Territory, and Kentucky[1344] marriage is void between a white person and a negro or mulatto; in Georgia[1345] it is so between a white person and a person of African descent; in Louisiana and Virginia, between white persons and persons of "color;" in West Virginia, between a white person and a negro; in Oklahoma, between persons of the white race and those of the negro race; in South Carolina, between a white person and an Indian, negro, mulatto, mestizo, or half-breed; in Florida between a white person and a colored person; in Maryland between a white person and a negro or a person of negro descent to the third generation inclusive; in North Carolina the interdiction is the same, except that Indians are included;[1346] in Texas the prohibition is between persons of European blood and Africans or their descendants. Elsewhere the lawmaker resorts to arithmetic. Marriage is void in Mississippi[1347] between a white person and a person having one-eighth or more negro or Mongolian blood; and in Missouri, where the negro blood amounts to one-eighth or more. Arizona, like Mississippi, objects strongly to the union of whites and Chinese; so a marriage is declared void between persons of "Caucasian" blood and Africans or "Mongolians," or with their descendants.[1348]
[Footnote 1343: By the statute of Tennessee marriage is prohibited between white persons and "negroes, mulattoes, or persons of mixed blood, descended from a negro to the third generation inclusive, or their living together as man and wife." Violation of the act is made a felony punishable by confinement in the penitentiary for a period of one to five years; though, on recommendation of the jury, the court may substitute a fine and imprisonment in the county jail: Code (1884), 608; ibid. (1896), 1038.
The law of Alabama is in substance the same; although to the clause prohibiting intermarriage "to the third generation inclusive," the Code, sec. 4018, when affixing the penalty, adds the words, "though one ancestor of each generation was a white person": see Code of Ala. (1897), II, 381; WRIGHT, Report, 36.]
[Footnote 1344: In 1810 the Virginia act of 1753, chap. 2, secs. 14, 15, for the prevention of that "abominable mixture and spurious issue," was still in force: Stat. Law of Ky. (1810), II, 572.]
[Footnote 1345: In Georgia and Florida a person of color is one who has one-eighth negro or African blood in his veins: Code of Ga. (1882), 356; cf. ibid. (1896), II, 4, 224; Rev. Stat. of Fla. (1892), 681, 111.]
[Footnote 1346: In North Carolina, furthermore, a negro may not marry a Croatan Indian: WRIGHT, Report, 42.
The code of this state is almost vindictive in its temper. The marriages between whites and negroes or Indians "shall be absolutely void to all intents and purposes, and shall be so held and declared by every court at all times, whether during the lives or after the deaths of the parties thereto; and it shall not be lawful for the issue of any such marriage to be legitimated to the supposed father."--Code of N. C. (1883), I, 514.]
[Footnote 1347: But see Ann. Code of Miss. (1892), 677: The marriage of a white person "with a negro, mulatto, or Mongolian or person who shall have one-eighth or more negro or Mongolian blood" is declared "unlawful and void."]
[Footnote 1348: Rev. Stat. of Ariz. (1887), 371; ibid. (1901), 809; Ann. Code of Miss. (1892), 677. In general, for the provisions regarding miscegenation, see also _Rev. Stat. of Fla._ (1892), 681; Digest of Ark. (1894), 1126; _Ann. Stat. of Ind. Ter._ (1899), 507; Kentucky Stat. (1894), 763; _Louisiana Acts_ (1894), 105; Rev. Stat. of Mo. (1889), I, 908; ibid. (1899), I, 610; Code of Va. (1887), 560; Code of W. Va. (1900), 660, 661, 972 (void from decree); Maryland Code (1888), I, 523; Code of N. C. (1883), I, 514; Rev. Stat. of S. C. (1894), I, 753; Gen. Laws of Tex. (1891), I, 878; the same in 1837: Laws of Republic of Tex. (1838), 234, 235; _Sess. Laws of Okla._ (1897), 212.]
But numerous and varied as are the legal restrictions put upon marriage in the southern and southwestern states, one regrets to discover that not even a beginning has yet been made in the effort to thus check the increase of paupers and vagrants, or to prevent the hereditary transmission of tendencies to vice, crime, or incurable disease.
In many cases indirect encouragement of matrimony is given in the usual way through legitimation of children or the suspension of penalty or prosecution.[1349] Since 1856 the Statutes of New Mexico, in this connection, contain a somewhat novel clause. It is "provided that when any persons are found living together publicly as if they were married, they shall be required immediately to contract marriage, if there is no impediment to prevent their so doing; and if they do not marry upon the first requirement of any justice, they shall, upon accusation, be fined not less than twenty-five nor more than eighty dollars for every time they shall be so found."[1350] West Virginia favors wedlock in a different way. Not only may either person bring suit, in the manner very commonly prescribed, to annul or validate a doubtful marriage; but in that event and "in every other case where the validity of a marriage is called in question, it shall be presumed that the marriage is valid, unless the contrary be clearly proven."[1351] Georgia, however, is the only state which offers direct encouragement. It is formally announced that "marriage is encouraged by the law, and every effort to restrain or discourage" it by "contract, condition, limitation, or otherwise is invalid and void." Still, "prohibiting marriage to a particular person or persons, or before a certain seasonable age, or other prudential provision looking only to the interest of the person to be benefitted, and not in general restraint" of matrimony, will be allowed.[1352]
[Footnote 1349: Illegitimate children are legitimized by the marriage of parents and acknowledgment of the father in Alabama, Code (1887), 530; ibid. (1897), sec. 364; Arizona, _Rev. Stat._ (1887), 371, 372; Florida, Rev. Stat. (1892), 686; Georgia, Code (1896), II, 254; Kentucky, Stat. (1894), 545; Maryland, Code (1888), II, 813; Mississippi, Ann. Code (1892), 172; Missouri, Rev. Stat. (1899), I, 740; Virginia, Code (1887), 620; West Virginia, Code (1891), 666.
Penalty or prosecution for seduction is suspended by marriage of parents in Arizona, Rev. Stat., as cited; Kentucky, Stat., as cited; Missouri, Rev. Stat. (1899), I, 548; New Mexico, Comp. Laws (1897), 344; Texas, Act of March 25, 1899: Gen. Laws, 66: and Virginia, Code, as cited. Cf. WRIGHT, Report, 27.
Prosecution for seduction is also suspended on marrying the woman in Arkansas; but it is specially provided that if at any time thereafter the accused shall wilfully and without such cause as now constitutes a legal ground of divorce desert and abandon the female, then the prosecution shall be continued and proceed as though no marriage had taken place. In such cases the female may be a witness: Acts (1899), 23, 24.]
[Footnote 1350: Laws of N. M. (1897), sec. 1346, pp. 391, 392, Cf. the law of Arizona, Rev. Stat. (1887), 371, 372.]
[Footnote 1351: Code of W. Va. (1891), 612; ibid. (1900), 661.]
[Footnote 1352: Code of Ga. (1882), 391; ibid. (1896), II, 221.]
c) Certificate and record.--In the region whose laws are under examination license from a county officer is now in most cases essential before a marriage may be legally solemnized. But originally in the older commonwealths there existed a dual system of optional civil license or ecclesiastical banns, which may be contrasted with the somewhat different system by banns or posting so long preserved in the New England states. Indeed, in at least two instances it still survives.
By the first legislation of Virginia after the Revolution the provisions of the act of 1748 on this subject are retained.[1353] In 1780 it is provided that "no persons, except the people called Quakers and Menonists, shall hereafter be joined together as man and wife without lawful license first had, or thrice publication of banns in the respective parishes, or congregations," where such persons "severally" reside. Within three months a "certificate of solemnization" is to be filed with the clerk of the county where the marriage takes place. The fee for performing the ceremony is fixed at "twenty-five pounds of tobacco, and no more, to be paid in current money at the rate which shall be settled by the grand jury."[1354] Under the elaborate statute of 1792 a license, or oral banns in case of members of the Protestant Episcopal church, is still requisite. On submitting an approved bond in the sum of one hundred and fifty dollars, license may be obtained from the clerk of the court of the county where the woman "usually resides." When either person is under twenty-one years of age, consent of parent or guardian, written or oral, is necessary before license may be issued. If written, the consent must be attested by two witnesses, one of whom, appearing in person, is to swear that the signature was made in his presence. Within twelve months--the time already fixed by the act of 1784--a certificate of the marriage must be returned to the clerk of the county or corporation in which it was solemnized.[1355]
[Footnote 1353: For the act of 1748, see Acts of the Assem. (1769), 246-48.]
[Footnote 1354: Act of May, 1780, in HENING, Statutes, N, 361-63. Compare the acts of 1783 and 1784, where the system of banns or license is retained, ibid., XI, 281, 282, 503-6. Later the fee was fixed at $1: TATE, Digest (1823), 417.]
[Footnote 1355: Act of Dec. 22, 1792: Acts of the Gen. Assem. (1794), 204, 205.]
Thus, with slight change, the law of Virginia remained for over half a century.[1356] But in 1848 oral banns were abolished and the modern system by civil license only was established.[1357]
[Footnote 1356: Compare the law of 1794: Acts of Gen. Assem. (1794), 331, 332; Rev. Code (1819), 393-403. But in 1803 the justice is no longer required to sign and direct the license: Acts of Gen. Assem., 372 (act to take effect May 1, 1797). In 1832 the consent of the mother is declared sufficient to authorize license to minors when there is no father or guardian: Acts (1831-32), 27; and in 1848 so much of the law of 1832 was repealed "as requires the consent of the mother of any infant desiring a marriage license to be certified under seal;" and henceforth in all cases the written consent of parents may be attested by one witness. When for any reason the clerk's office is vacant license may be issued by the "senior justice of the peace."--Acts of the Assem. (1847-48), 165.]
[Footnote 1357: Ibid.]
In North Carolina a dual system of banns and license, similar to that of Virginia, was authorized by the act of 1778; and it did not yield to the modern plan until 1872, when banns were abolished and bond for license was no longer required.[1358] Tennessee retained the system of the parent commonwealth, North Carolina, until, far down in the century, it gave way to the typical American plan.[1359] Kentucky does not seem to have followed the example of Virginia; but civil license in all cases was there required from the origin of the state.[1360] In Missouri, on the other hand, in 1805 a triple optional system of banns, posting, or license was established by the governor and judges of Indiana Territory. Notice of intention to marry is to be published for fifteen days at least, either orally on "three several Sundays, holy days, or other days of public worship, in the meeting in the towns where the parties respectively belong;" or by affixing a written notice signed by one of the judges or a justice of the peace in some public place where the persons respectively dwell. Otherwise a license under the governor's hand and seal, authorizing celebration without publication, must be obtained. By this law persons solemnizing marriages are to keep a record; and within three months, in each case, they are required to make a return to the registrar of the district.[1361] Banns, however, do not seem ever to have been recognized after Missouri was admitted to the Union. The act of 1825 is entirely silent as to both banns and license. In place thereof it is provided that the marriage of a minor may not be celebrated unless parent or guardian be present and give consent; or else a written certificate of assent must be produced under the hand of such parent, guardian, or other person having legal control, attested by the oath or affirmation of a witness of full age.[1362]
[Footnote 1358: IREDELL-MARTIN, Public Acts, 1715-1803 (1804), act of 1778, chap. 7, I, 253. Compare Laws of N. C. (1821), I, 129; Rev. Stat. (1837), I, 386; and Laws (1871-72), 328-43. The register of deeds takes the place of the clerk of the county court as issuer of license in 1872. By the act of 1778 the bond necessary for license had been fixed at 500 pounds "lawful money."]
[Footnote 1359: SCOTT, Laws of Tenn. (1821), Index at "Marriage": Stat. Laws of Tenn. (1831), 219, 220. But oral banns do not appear in Code of Tenn. (1858), 480-82.]
[Footnote 1360: LITTELL, Stat. Law of Ky. II (1810), 64-69.]
[Footnote 1361: See act of April 24, 1805: _Acts of a Pub. and Gen. Nature_ (1842), I, 66.]
[Footnote 1362: Act of Jan. 4, 1825: Laws of the State (1825), I, 527. Persons or societies solemnizing marriages are required to keep a record; and a general record must also be made by the registrar of the county. The provision of 1825 is repeated in Rev. Stat. (1845), 730.]
Maryland still clings to the system of license or ecclesiastical banns substantially as it appears in the act of 1777.[1363] The same was formerly true of the District of Columbia, where the statute of Maryland was in force until 1896,[1364] Georgia has been equally conservative. By the law of 1785 a magistrate or a clergyman may solemnize matrimony after eight days' "public notice" or on receiving a license from "his honor the governor, or register of probates."[1365] This plan lasted only until 1799, when license or thrice publication of banns, in the usual way, was substituted.[1366] So the law remained[1367] until 1860, when a reactionary step was taken. In December of that year an act was passed by the legislature, to take effect January I, 1862, containing a paragraph which made either license or ecclesiastical banns essential to a valid marriage. However, on the repeal of this paragraph in 1863, the old optional system by banns or license, without declaring either essential to a valid contract, was restored; and it has persisted to the present time.[1368]
[Footnote 1363: Compare the act of 1777, chap. 12, secs. 5-12: see KILTY, Laws; or Laws of Md. (1787), at sections cited; and POE, Code (1888), I, 975.]
[Footnote 1364: Comp. Stat. of D. C. (1894), 272.]
[Footnote 1365: Digest of Ga. (1801), 314. But by the constitution of the state (1798), Art. III, sec. 6, ibid., 40, the clerk of the inferior courts of the county, with powers of a court of ordinary or register of probates, shall issue marriage licenses.]
[Footnote 1366: Digest (1801), 733.]
[Footnote 1367: See HOTCHKISS, Codification, (1845), 329; or COBB, Digest (1851), 282, 819.]
[Footnote 1368: Paragraph 1658, pp. 331, 332, of the Code of Ga., assented to Dec. 19, 1860, to take effect Jan. 1, 1862, provides for obtaining license, and "publication of the banns of marriage in a neighboring church, in the presence of the congregation, for at least three Sabbath days prior to its solemnization," all other marriages being declared invalid. Cf. Acts (1863-64), 48, editorial note. The change worked confusion. The preamble of the act of Dec. 14, 1863, declares that the "innovation" will "have the effect of giving rise to perplexing questions of legitimacy of children, and rights of property; and to domestic unhappiness." Therefore the paragraph is repealed, and marriages already solemnized under it are validated: ibid., 48.
For the present law see Code of Ga. (1896), II, 223, 221.]
The peculiar procedure observed in Louisiana with respect to parental consent or the consent of the family council, in the case of the marriage of minors, has already been described in the preceding section. The act of 1807 contains also a general provision for notice and license. Persons applying for license must satisfy the parish judge, by two witnesses if necessary, that they are twenty-one years of age; and the proof must be registered. The intentions of the persons are then to be published by the judge through "posting up a notice at the door of the nearest church, [or] at the door of the court-house of the parish, announcing a day on which a license would issue, unless opposition should be made." If no objection be raised within fifteen days, the license may be issued, provided the intended husband execute a bond, with sufficient security, "in a sum proportioned to his fortune, at the discretion of the judge," that there is no legal impediment to the marriage. But there is an important exception to the general rule. In "certain cases," if minors are not concerned, "the judge may dispense with the above mode of publishing marriages, by his special license to that effect, and under his own responsibility." Minors must apply to the judge of the parish in which one of the persons has his domicile. The application is then published, and "if no opposition be made, the license shall be granted as directed in the case of persons who have attained the age of twenty-one years."[1369] The wholesome provision requiring notice to be published for a certain period before issuance of the license is no longer in force. Otherwise, though somewhat simplified, the law of Louisiana remains today practically what it was in 1807. License is always requisite; it must be issued by the proper officer in the parish where either the bride or groom is domiciled; and the provision for the bond is expressed in exactly the same words as of old, except that the duration of the security is limited to two years. In the parish of Orleans licenses are granted by the board of health and judges of the city courts; in the other parishes of the state, by the clerks of the district courts, or by the district judge when the clerk is himself a "party to the marriage."[1370]
[Footnote 1369: Act of 1807: LISLET, General Digest (1828), II, 6-8.]
[Footnote 1370: MERRICK, Rev. Civil Code (1900), I, 21-25. But if objection be made on oath, the marriage may be suspended for ten days by the judge.]
The general features of matrimonial administration in the entire group of states may now be presented in rapid outline. Everywhere, except in Georgia and Maryland, as already explained, and in New Mexico and South Carolina, which have no legislation on the subject, license in every case is required. The present law of Virginia does not differ materially from that of earlier years. The marriage license is issued by the clerk of the court of the county or corporation in which the woman usually resides. If the office of clerk be vacant, then the judge of the county court or the mayor of the corporation may act, making return to the clerk "as soon as there may be one." Before license is granted for the marriage of a minor, there is requisite the consent of the father or guardian, or, if none, of the mother, given personally or in writing subscribed by a witness who must swear that the writing was signed in his presence. Similar functions are performed by the clerk of the county court in West Virginia,[1371] Tennessee,[1372] and Arkansas; the clerk of the circuit court, in Maryland, Texas, and Mississippi; the county register or recorder of deeds, in North Carolina and Missouri; the county ordinary or his deputy, in Georgia; the county judge, in Florida; the county judge of probate, in Alabama and Oklahoma; the clerk of the probate court, in Arizona; the county clerk, in Kentucky; the clerk of the district court, in Louisiana; the municipal judge, in Porto Rico; and by the clerk of the supreme court of the District of Columbia.[1373] As in Virginia, license must be obtained from the proper officer of the county where the woman resides, in Alabama, Florida, Mississippi, and West Virginia. The same is true in Georgia, if the woman is "resident in the state;" and in Kentucky, unless she is of full age or a widow, and the license is issued on her personal or written application, when it may be granted by any county clerk. But in Maryland and North Carolina license must be obtained in the county where the marriage is expected to occur; in Tennessee, either in the county in which the bride resides or in that where the marriage is to be solemnized; while in Louisiana, as already seen, it may be issued in the county where either the bride or the groom is domiciled. The statutes of the remaining states appear to have no definite provisions on this subject. The law of Porto Rico is very careful in this regard. "Persons desiring to contract marriage shall first present themselves before the municipal judge of their domicile if they shall have the same domicile," or before that officer in their respective places of abode if they have different domiciles; "and first being duly sworn, shall be examined as to their legal capacities and incapacities to enter into matrimony." They must also sign a sworn declaration of their names, ages, and professions, with those of their parents, which the judge is required to record in his "marriage book." Not until ten days after the examination may the judge issue the license, or refuse it if on proper trial any objection to the marriage is sustained; nor may he issue it in case the persons have different domiciles until the other judge "has forwarded to him a copy of the record made by the other contracting party."[1374] In Arkansas, Indian Territory, Tennessee, and until recently in Mississippi,[1375] a bond in a definite sum, conditioned that the parties may lawfully marry, must be given by the person applying for the license. The same is true for Alabama in the case of minors; and also for Kentucky when the persons are unknown to the clerk. In the other states, if demanded by the official, oath or affidavit usually takes the place of bond. For solemnizing a marriage without proper license presented the offender is very generally subjected to severe penalties.[1376]
[Footnote 1371: In West Virginia, where there is no lay celebration, the form of license is as follows: "To any person licensed to celebrate marriages: You are hereby authorized to join together in the holy state of matrimony, according to the rites and ceremonies of your church or religious denomination, and the laws of the state of West Virginia, ---- ---- and ---- ----. Given under my hand, as clerk of the county court of ----, this ---- day of ----."--Code (1891), 607.]
[Footnote 1372: When either person is under sixteen, a license will not be issued without written consent of parent or guardian: Acts of Tenn. (1899), 36.]
[Footnote 1373: In Baltimore city license is issued by the clerk of the court of common pleas: Code (1888), I, 975; in St. Louis, by the city recorder: WRIGHT, Report, 49 n. cc.]
[Footnote 1374: Rev. Stat. and Codes of Porto Rico (1902), 807-9.]
[Footnote 1375: The Ann. Code of Miss. (1892), 677 ff., is silent as to bond.]
[Footnote 1376: In Missouri, failure to keep a record or solemnization without license is a misdemeanor. The transgressor must pay a fine of not exceeding $500, and in addition he is liable to a civil action by the parent or other person to whom "services" are due, to recover not more than $500: Laws (1881), 161; Rev. Stat. (1889), II, 1606; ibid. (1899), I, 1037. In Alabama the fine is $1,000, one-half to the state and one-half to the person suing: Code (1896), I, 829; in North Carolina, solemnization without license or failure to make return is a misdemeanor, subject to a fine of $200, payable to anyone who sues: Code (1883), I, 691, 692; in Kentucky, a fine of not more than $1,000, or imprisonment from one to twelve months, or both: Stat. (1894), 766; in Arkansas, a high misdemeanor and a fine of not less than $100: Digest (1894), 1127; in Tennessee, a misdemeanor and a fine of $500: Code (1896), 1040-41; in Georgia, a fine of $500: Code (1896), II, 223; in Virginia and West Virginia, forfeiture of bond: Code of Va. (1887), 557; Code of W. Va. (1891), 608; in Maryland, a fine of $100 to $500: Laws (1894), 124; in Texas, a misdemeanor and a fine of $50 to $500: Act of June 5, 1900: Gen. Laws, 307. In the District of Columbia for marriage without banns or license each of the parties and the person solemnizing are liable to a fine of 500 pounds current money: Comp. Stat. (1894), 272; MOORE, Code, 266.]
In every commonwealth, except South Carolina, Arkansas, and Indian Territory,[1377] it is the duty of the person or society conducting the celebration to make a "return" thereof to the proper official, either in the county where the woman dwells or in that of the marriage.[1378] This report must be submitted within a fixed period, which is one month (or thirty days) in Alabama, Louisiana, and Maryland; two months (or sixty days) in Texas, Virginia, North Carolina, and Arkansas; three months (or ninety days) in Kentucky, Missouri, and Mississippi; six months in Tennessee; twenty days in Arizona; ten days in Florida and the District of Columbia; two days in Porto Rico; while in Oklahoma return must be made "without delay." The return to the clerk may be by a separate certificate, as in Alabama, Virginia,[1379] Mississippi, Porto Rico, and Maryland; or by "endorsement" or "certificate appended," as in North Carolina, Oklahoma, Georgia, Tennessee,[1380] West Virginia, Florida, Texas, and Arizona; or on a "coupon" issued with the license, as in the District of Columbia.[1381] New Mexico requires two reports a year, on the first days of July and January, or a report "at every regular term of the probate court for each county." In the District of Columbia every minister celebrating marriage by license must "annually, in the month of November, return on oath a list of the names of the persons, and the time when married," to the clerk of the supreme court.[1382] Mississippi has provided for bringing delinquents to account. The clerk is directed "to examine the records once a month, and if any ... person be found in default, he shall institute inquiry," at the cost of the culprit, summoning him to make return of the certificate according to law.[1383] Similarly, in Missouri it is enacted that the recorder of deeds "shall certify to the grand jury, at each regular term of the court having criminal jurisdiction within the county, a list of all marriage licenses issued by him," but not returned within the legal period of ninety days; the negligent minister or officer being guilty of a misdemeanor and liable to a fine of from five to twenty-five dollars.[1384] Only in two cases is there provision for report of the marriages of residents celebrated without the state. By the statutes both of Virginia and West Virginia a certificate or statement of such contracts verified by any person present at the ceremony "may be returned" to the clerk of the court of the county where the husband resides, or if he be not a resident, then where the wife dwells; and the usual abstract of it must be recorded by the clerk.[1385]
[Footnote 1377: Arkansas and Indian Territory have a peculiar provision. The person obtaining a license is required to report "the same to the office of the clerk of the county court within 60 days from the date of such license; and if the same be duly executed and officially signed by some person authorized by law to solemnize marriage," the bond of the person so applying for the license shall be null and void, otherwise of full force: Digest (1894), 1129; Ann. Stat. of Ind. Ter. (1899), 510.]
[Footnote 1378: Return is made to the judge issuing the license in Porto Rico; to the proper officer in the county where the marriage is celebrated in Missouri, Mississippi, and New Mexico; in all other cases, in the county where the woman resides.]
[Footnote 1379: The Virginia law requires the clerk to deliver to the person entitled the license and also a certificate containing the names of the parties, date of the proposed marriage, etc. The person solemnizing is to return the license and the clerk's certificate, together with his own certificate of the time and place of the marriage: Code (1887), 556.]
[Footnote 1380: This is the form of indorsement required by the Tennessee law: "I solemnized the rite of matrimony between the above (or within) named parties, on the ---- day of ----, 18--."--Code (1896), 1039.]
[Footnote 1381: Comp. Stat. (1894), 274, 273; MOORE, Code, 267.]
[Footnote 1382: Comp. Stat. (1894), 273.]
[Footnote 1383: Ann. Code of Miss. (1892), 678.]
[Footnote 1384: Rev. Stat. of Mo. (1889), II, 1605: ibid. (1899), I, 1037.]
[Footnote 1385: Code of Va. (1887), 557; Code of W. Va. (1891), 608; ibid. (1900), 656, 657.]
In a few instances the law directly provides for giving a certificate to the newly wedded pair; although where the law is silent the same may sometimes be done by custom when request is made. Maryland, Porto Rico, Missouri, and the District of Columbia have authorized such a certificate;[1386] and Arkansas has enacted that after the license has been returned to the clerk, and by him duly recorded, he shall at once make out a certificate of such record, attach it to the license, and send it back to the person who presented the same.[1387]
[Footnote 1386: Code of Md. (1888), I, 975, 976: Laws of Mo. (1895), 222; MOORE, Code of D. C. (1902), 267: _Rev. Stat. and Codes of Porto Rico_ (1902), 810.]
[Footnote 1387: Digest of Ark. (1894), 1129.]
The southern and southwestern states have in general taken far less pains than those of New England to provide by law for a full record of marriages and for collecting, registering, and publishing the important social statistics connected with family life. In fact, there is much less completeness regarding essential details throughout the entire field of matrimonial legislation. New Mexico, Missouri, and Kentucky appear to be the only states or territories which require every person solemnizing marriages to keep a record; although the Quakers of Maryland, as already seen, must enter the contracts by them solemnized in their own records, or in the records of some court, city, or county where the wedding occurs; and both Alabama and Mississippi require marriages performed by the pastors of any religious society to be registered in a book kept for the purpose.[1388]
[Footnote 1388: Code of Ala. (1897), I, 828; _Ann. Code of Miss._ (1892), 678.]
Everywhere[1389] the clerk or other officer must keep a register of the facts entered in the license, sometimes with other data; and usually the original license is placed on file. The laws of Virginia and West Virginia, being practically the same, are perhaps more complete and more wisely drawn as regards registration than those of any other state of this group. In Virginia the clerk is required to keep three books, to be called respectively the register of marriages, the register of births, and the register of deaths. At the time of issuing a license he is to ascertain, as nearly as may be, the date and place of the proposed marriage, the full names of the parties, whether they are single, widowed, or divorced,[1390] the place of their birth and residence, the names of their parents, and the husband's occupation. Within twenty days after return of the license and certificate by the person solemnizing, the clerk is to record a full abstract thereof in his marriage register, setting forth the facts in convenient tabular form.
[Footnote 1389: Except apparently in Tennessee.]
[Footnote 1390: Act of Feb. 3, 1900: Acts (1899-1900), 283, 284.]
These two states have also provided for the collection of statistics from coroners, heads of families, and physicians; and, like Kentucky and Arkansas, they have established state systems of registration. On or before the first of March annually the clerk or other official in every county is required to submit to the state auditor of public accounts a full report of the facts contained in his marriage register; and every year the auditor is to prepare an abstract of the county reports and submit it to the general assembly at each regular session.[1391]
[Footnote 1391: In West Virginia "the registration of births, marriages, and deaths of white and colored shall be kept separate and distinct."--Code (1900), 659. Cf. Ky. Gen. Stat. (1887), 204; Digest of Ark. (1894), 320, 321; Code of Va. (1887), 130, 558.
For the entire discussion of matrimonial administration in these states, as above given in subsec. c), compare Code of Ala. (1897), I, 827 ff.; Rev. Stat. of Ariz. (1887), 371, 372; Digest of Ark. (1894), 1126 ff.; Rev. Stat. of Fla. (1892), 679 ff.; Code of Ga. (1896), II, 221 ff.; Kentucky Stat. (1894), 765, 766; Rev. Civil Code of La. (1888), 60 ff.; Code of Md. (1888), I, 975 ff.; Ann. Code of Miss. (1892), 677, 678; Rev. Stat. of Mo. (1899), I, 1035 ff.; Comp. Laws of N. M. (1897), 403 ff.; Code of N. C. (1883), I, 690-92; Code of Tenn. (1884), 609-11; Gen. Laws of Tex. (1891), 96; Rev. Civil Stat. of Tex. (1888), I, 877, 878; Code of Va. (1887), 555-60; Acts (1900), 283, 284; Code of W. Va. (1900), 654 ff., 934; also Acts of Leg. (1887), chap. 64; Ann. Stat. of Ind. Ter. (1899), 507 ff.; Session Laws of Oklahoma (1897), 208 ff.; Comp. Stat. of D. C. (1894), 270-75.]
III. THE MIDDLE AND WESTERN STATES[1392]
a) Solemnization.--For half a century after the Declaration of Independence New York abstained from any legislation regarding the marriage celebration. The optional civil or ecclesiastical ceremony was still allowed as in the provincial era. In the meantime acts were passed for the punishment of bigamous and other unlawful unions; and in 1813 the statute-maker felt himself called upon to deal with the same hard case of conscience which had long before troubled the people of Virginia and Massachusetts. It was decreed that "every negro, mulatto, or mestee within this state, who is now a slave for life, shall continue such ... unless manumitted according to law; and the ... baptizing of any slave shall not be deemed ... a manumission." All marriages contracted "wherein one or more of the parties was, were, or may be slaves, shall be considered equally valid" as if they were free; but here also it is carefully provided that nothing in the law shall be construed so as to cause the bondman to be manumitted.[1393]
[Footnote 1392: In this section the laws of the following twenty-five districts and states are considered: Alaska, California, Colorado, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Utah, Washington, Wisconsin, and Wyoming.]
[Footnote 1393: Act of April 9, 1813: Laws of New York (1813), II, 201, 202.]
The revised statutes of 1827-28 contain a general "title" regulating matrimony which in many respects forms the basis of the existing law. "For the purpose of being registered and authenticated" marriage shall be solemnized only by the following persons: (1) ministers of the gospel and priests of every denomination; (2) mayors, recorders, and aldermen of cities; (3) judges of the county courts and justices of the peace. Quakers and Jews may "continue" to use their own rites. Record of marriage certificates is provided for; and in place of license or banns--neither of which is mentioned--the person performing the ceremony is authorized to identify the parties, if either is a stranger, by the oath of some person whom he knows.[1394] The existing law contains a similar provision. Under like circumstances the minister or magistrate must ascertain from the applicants their right to contract marriage, and for that purpose he may examine one or both of them, or any other person under oath, "which examination shall be reduced to writing and subscribed by the parties."[1395] Throughout the century the law regarding celebration has remained unchanged in general character, although authority to perform the ceremony has been extended to other officials and magistrates.[1396] The state steadily maintained the validity of marriages entered into by simple agreement without any formal celebration. It was enacted in 1887 that the provisions of the statute shall not be "construed to require the parties to any marriage, or any minister or magistrate to solemnize the same in the manner "therein prescribed;" but all lawful marriages contracted in the manner heretofore in use in this state, shall be as valid as if this article had not been passed."[1397]
[Footnote 1394: Rev. Stat., Passed 1827-28 (Albany, 1829), II, 139, 140.]
[Footnote 1395: A false statement of either person is punishable as perjury: Laws (1873), chap. 25, pp. 19, 20; also in Rev. Stat. (1889), IV, 2597.]
[Footnote 1396: To the leader of the Society for Ethical Culture in the city of New York and the justices and the judges of all courts of record: Laws (1888), chap. 78, pp. 122, 123, superseding an amendment to Rev. Stat. (1829) authorized by Laws (1887), chap. 77, pp. 89, 90, and Laws (1877), chap. 430; Rev. Stat. (1889), "supplement" in IV, 2596, 2597.]
[Footnote 1397: Laws (1887), chap. 77, p. 90; also in _Rev. Stat._ (1889), IV, 2598.]
The usual evils followed: but an effective remedy seems at last to have been provided. By an act of April 11, 1901, a marriage must be solemnized either (1) by a clergyman or minister of any religion, or the leader of the Society for Ethical Culture in the city of New York; (2) a mayor, recorder, alderman, police justice, or police magistrate of a city; (3) a justice or judge of a court of record or municipal court, or a justice of the peace; or (4) by "a written contract of marriage signed by both parties, and at least two witnesses who shall subscribe the same, stating the place of residence of each of the parties and witnesses and the date and place of marriage, and acknowledged by the parties and witnesses in the manner required for the acknowledgment of a conveyance of real estate to entitle the same to be recorded. Such contract shall be filed within six months after its execution in the office of the clerk of the town or city in which the marriage was solemnized." After the first day of January, 1902, no marriage claimed to have been contracted otherwise than in this article provided "shall be valid for any purpose whatever." The act, however, declares the validity of every lawful union formed "in the manner and pursuant to the regulations" of a religious society to which either person belongs.[1398] Thus with the beginning of the new century the "common-law" marriage appears to have finished its long course in New York state.
[Footnote 1398: Laws of N. Y. (1901), II, 933-35.]
The statutes of that commonwealth relating to contract or solemnization are extended to Indians residing in the state; although it is especially provided that those "who have heretofore or shall hereafter contract marriage according to the Indian custom or usage, and shall cohabit as husband and wife, shall be deemed lawfully married. Indian marriages may be solemnized by peace-makers within their jurisdiction with the same force and effect as by a justice of the peace."[1399]
[Footnote 1399: Act of May 18, 1892: Rev. Stat. (supplemental volume, 1892), V, 3742.]
For New Jersey the first matrimonial law of the period under review is that of March 4, 1795, repealing an act of March 24, 1719. By this law every justice of the peace and "every stated and ordained minister" in the commonwealth is given power to perform the wedding ceremony; and, in addition, every religious society is permitted to employ its own usage in the marriage of its members; but such contracts are to be recorded in the same way as those before a minister or magistrate.[1400] Amendments were made from time to time down to 1882, when an act appears which in nearly all of its leading provisions is still in force.[1401] Marriage may now be solemnized in the state by every judge of a court of common pleas; any justice of the peace,[1402] mayor, recorder, or police justice; and by every stated and ordained minister of the gospel. In addition, every religious society in the state may join together in wedlock persons one or both of whom are its members; and by a later enactment authority is conferred upon the chief justice and the associate justices of the supreme court, the chancellor and every vice-chancellor of the equity courts, in as full measure "as if the marriage were solemnized by a stated and ordained minister of the gospel."[1403] The marriage of a minor may not be solemnized without certificate of parental consent, whose genuineness must be proved by the oath of at least one witness of full age and discretion.[1404]
[Footnote 1400: Laws of the State of N. J. (1800), 158, 159.]
[Footnote 1401: Pub. Laws (1882), 203; retained in Gen. Stat. of N. J. (1896), II, 2005. See for earlier acts amended Pub. Laws (1877), 168.]
[Footnote 1402: A justice of the peace may solemnize a marriage out of the county for which he is commissioned: Pearson v. Howey, 6 HALSTED, N. J. Reports, 12.]
[Footnote 1403: Act of June 13, 1890: Pub. Laws (1890), 439; Gen. Stat. (1896), II, 2006.]
[Footnote 1404: Pub. Laws (1889), 139; Rev. Stat. (1896), II, 2005.]
Pennsylvania has shown remarkable conservatism in her regulation of the marriage celebration. After two centuries, the act of 1701, taking its form in that of 1693, is with slight alteration still in force. It contains no precise designation of the persons who may perform the ceremony. Its spirit is revealed in the dictum of George Fox, elsewhere quoted: "We marry none, but are witnesses of it." Self-betrothal and self-gifta, as in early mediæval days, are still practiced by the Quaker descendants of the ancient Teutons. In 1885 a statute expressly authorizes a man and a woman to solemnize their own marriage.[1405] This provision and a later requirement of license in all cases are the only legislative changes affecting the celebration since 1730, when certificate of parental consent was demanded. Now, as in 1701, the bride and groom, taking each other by the hand, are permitted to plight their vows in the presence of at least twelve witnesses, one of whom being a justice of the peace; although the courts have decided, as indeed they could hardly fail to do, that this provision is merely "directory" and not mandatory;[1406] for the original enactment declares that it shall not extend "to any that marry in their own society in the absence of a justice of the peace."[1407] Such is the liberty permitted by the law; but the practice of the majority of the people probably does not differ much from the common usage elsewhere in the United States. From an act of 1849, still retained in the statute-book, one may perceive who are the officers usually called upon to perform or witness the wedding ceremony. "Every person in whose care or profession may be found the record kept by any minister of the gospel, judge, alderman, or justice of the peace, of any marriage contract solemnized" by or before the same shall on application, and the payment or tender of a fee of fifty cents, deliver to the applicant a full transcript of such record, with a proper certificate of its correctness.[1408]
[Footnote 1405: Laws (1885), No. 115, sec. 1.]
[Footnote 1406: Rodebaugh v. Sanks (1833), 2 WATTS, 9; Fulkerson v. Day (1881), 15 Phila. Reports, 638. The provision of 1701 requiring the justice to subscribe the publication (or certificate) is not obsolete: Helffenstein v. Thomas (1835), 5 RAWLE, Reports, 209.]
[Footnote 1407: Above, chap. xii, sec. iii.]
[Footnote 1408: Act of April 10: Laws of the Gen. Assembly (1849), 549; retained in PEPPER AND LEWIS, Digest (1896), II, 2879.]
There is a sharp contrast between the broad liberalism of Pennsylvania and the narrow, even reactionary, policy of Delaware, whose territory also once formed a part of the proprietary domain of William Penn. The act of January 29, 1790, is decidedly retrogressive. Its keynote is pitched in the preamble, "Whereas," we are assured, "matrimony is an honorable institution of Almighty God, designed for the mutual convenience and happiness of mankind; and sober, discreet, and advised union of persons in matrimony is the duty of every good citizen, and the unadvised, clandestine, loose, and unseemly proceedings in marriage, tend to introduce a contempt and irreverent regard for that holy institution, and a dissoluteness of manners among the thoughtless part of the community;" furthermore, since evils may arise "to persons secretly and improperly uniting themselves ... without knowledge of their parents, guardians, or friends; and the causes are now removed, which rendered it convenient to have marriages celebrated by justices of the peace": therefore, under penalty of one hundred pounds lawful money for disobedience, it is declared that marriages between white persons may be celebrated only by "ministers or preachers of the gospel, appointed or ordained according to the rites and ceremonies of their respective churches, or by the religious society to which they belong" according to its established mode and usage.[1409] Civil marriage was thus completely abrogated, to be grudgingly restored only after more than fourscore years. Since 1874 the mayor of Wilmington has had a share in the matrimonial business, otherwise the law of 1790 still governs the nuptial celebration.[1410]
[Footnote 1409: Act of Jan. 29, 1790: Laws of the State of Del. (1797), II, 972, 973.]
[Footnote 1410: Rev. Stat. of Del. (1874), 473; also in Rev. Stat. (of 1852, as amended to 1893), 594. By the act of Feb. 25: Laws of Del. (1875), 260, the mayor of Newcastle was granted the same power, but it seems not to be continued in the present law.]
The foundation of Marietta in 1788, and the subsequent organization of the first territory of the United States, under the ordinance of 1787, constitutes an event scarcely second in significance to any in the whole course of American history. It marks the beginning of distinctively western institutions, although these, especially as regards the local political organisms, are in many respects predetermined and molded by those of the two old middle states, New York and Pennsylvania.[1411] The laws adopted or enacted for the region of Ohio, both before and after that state was admitted to the Union in 1802, form in principle and often in detail the models or prototypes on which rest the legal systems of the numerous commonwealths filling the vast expanse of territory stretching from the Alleghanies to the Golden Gate. This is surely true in general of the laws of marriage; although Ohio, in still clinging to the optional plan of civil license or oral ecclesiastical banns, has retained an archaic feature which finds little imitation in the other western states.
[Footnote 1411: On the significance of the settlement of Marietta, and the influence of the middle states and provinces, see HOWARD, Local Const. Hist., I, 408, 411, 387, passim.]
By a law of the Northwestern Territory in 1788, after banns, license, or notice by posting, persons may be joined in wedlock before any judge of the general court, or of the courts of common pleas in their respective districts, or before a minister of any religious society or congregation where he is settled; and the Quakers are especially guaranteed the enjoyment of their peculiar rites.[1412] Four years later the same authority is granted to all justices of the peace.[1413] In 1803 a new act appears. Now justices of the peace may perform the ceremony in their proper counties; Quakers and Menonists may use their own rites; and every "ordained" minister of any society or congregation is given the same authority, on presenting his credentials to the county court of common pleas,[1414] and receiving a license to that effect. But the function of such minister is no longer restricted to his own congregation; he may act anywhere in the state.[1415] The law was thus practically complete. Under the present statute of Ohio[1416] any ordained minister after obtaining a license from the county judge of probate; any justice of the peace in his county; any religious society "agreeably to the rules and regulations of their respective churches;" or the mayor of any city or incorporated village, in the county where it wholly or partly lies, is authorized to join persons in wedlock. A clergyman still has authority throughout the state; but since 1822, in each case, before he may legally act, it is necessary to exhibit his license to the court of the county where he intends to solemnize a marriage.[1417] When the marriage is of a minor, without the authority of a license, the person solemnizing is required to satisfy himself that banns have been duly published, and that the consent of parent or guardian has been obtained.[1418]
[Footnote 1412: Act of 1788: CHASE, _Stat. of Ohio and the Northwestern Ter._, I, 101, 102.]
[Footnote 1413: Act of Aug. 1, 1792: CHASE, op. cit., I, 126.]
[Footnote 1414: After 1810, at any rate, it is the county court of common pleas: CHASE, op. cit., I, 672 (1810); II, 1211 (1822), 1407 (1824); SWAN, Stat. of Ohio (1853), 569-71.]
[Footnote 1415: Act of April 4, 1803, repealing the two preceding laws: CHASE, op. cit., I, 354, 355.]
[Footnote 1416: Ann. Rev. Stat. of Ohio (1897), II, 3016.]
[Footnote 1417: The act of June 11, 1822: CHASE, op. cit., II, 1211, requires the minister to produce his license to the clerk of the county court of common pleas, who shall "enter the name of such minister upon record as a minister of the gospel duly authorized to solemnize marriage within the state, and shall note the county from which said license" was issued. At present the license must be presented to the county court of probate.]
[Footnote 1418: Ann. Stat. of Ohio (1897), II, 3017; cf. WRIGHT, Report, 56, 57.]
Indiana, admitted to the Union in 1816, Illinois in 1818, Michigan in 1837, and Wisconsin in 1848, were all included in the "Territory northwest of the Ohio," and, so far as they had inhabitants, were therefore originally affected by the laws and government established under the ordinance of 1787. Gradually, as each portion became a separate territory or an independent state, the early statutes, already considered in connection with Ohio, were retained, modified, or superseded. So far as the marriage celebration is concerned, the course of history in Indiana and Illinois need not here be dwelt upon. In the former commonwealth the ceremony may now be conducted by all ministers of the gospel and priests of every denomination, throughout the state; by judges of all courts of record, justices of the peace, and mayors of cities, within their respective counties; and by the Friends and German Baptists according to the rules of those societies. But no marriage, legal in other respects, is deemed void "on account of the incapacity of the person solemnizing the same."[1419] The present law of Illinois shows several variations. The ceremony may be performed either by a minister of the gospel in regular standing with the church or society to which he belongs; by a judge of any court of record; a justice of the peace; any superintendent of a public institution for the education of the deaf and dumb in the state; or, if either of the persons is a member of the "religious society known as Friends or Quakers, they may be lawfully married by making known their intention ... to a standing committee of an official meeting, at least one week before said marriage ... and by appearing in a public meeting or private gathering, before official witnesses of said body, with a certificate duly setting forth" their names and residences, with those of the parents, if living. This certificate, duly signed by the contracting persons and by the official witnesses, must be publicly read by one of the witnesses, and afterward entered in the records of an organized meeting of the society. In addition, the law guarantees every religious society the use of its own rites.[1420]
[Footnote 1419: Laws of the State of Ind. (1897), 129 (act of March 4, 1897).]
[Footnote 1420: Act of May 30: Laws (1881), 112; retained in HURD, Rev. Stat. (1898), 1068; cf. Rev. Stat. (1845), 343.]
By the first marriage law of Michigan Territory, adopted in 1805 from the statutes of Massachusetts, so "far as is necessary and suitable to the circumstances," the wedding ceremony may be performed by justices of the peace and regular ministers of the gospel, when at least one of the persons marrying is an "inhabitant" or "resident" of the district where such clergyman or magistrate dwells; and there is the usual clause securing to all religious societies their peculiar usage or customs.[1421] In 1820 the contemporary law of Ohio was adopted, authorizing celebration, after license, banns, or posting, by justices of the peace in their own counties, or by ministers of the gospel in regular communion with any society of Christians according to the forms of the church to which they respectively belong.[1422] The same privilege is expressly reserved to Quakers and Menonists in 1827;[1423] while in 1832 "ordained ministers" in regular communion with their societies, "but not otherwise," may perform the ceremony, provided their credentials are first entered "of record" with the county clerk.[1424] The present statute is in substance nearly the same, except that the "ordained" minister, who "continues to preach the gospel" in the state, is not required to file his credentials as by the earlier acts. Non-resident clergymen are also authorized to perform the ceremony in the state, provided a proper record be kept and a return duly made according to law; but in all cases the person conducting the celebration is commanded first to examine at least one of the persons on oath as to the legality of the intended contract.[1425]
[Footnote 1421: Act of Aug. 2, 1805: Laws of the Ter. of Mich. (1871-84), I, 30 (from the "Woodward Code"): repeated in the "Cass Code" (1816): ibid., I, 202, 203.]
[Footnote 1422: Act of 1820: Laws of the Ter., I, 646, 647.]
[Footnote 1423: Act of April 12, 1827: Laws of the Ter., II, 412-14.]
[Footnote 1424: Act of May 31, 1832: Laws of the Ter., III, 914, 915.]
[Footnote 1425: Act of July 31: Laws (1873), 20; also in HOWELL, Gen. Stat. (1882), II, 1619, 1620. It is expressly provided that marriage may be solemnized on Sunday: ibid., I, sec. 2015; and in certain extreme cases the county judge of probate may perform the ceremony: see the acts of 1897 and 1899, referred to in subsec. c) below.]
Wisconsin, whose law on the subject has been but slightly altered since 1839, authorizes solemnization by justices of the peace or court commissioners in the counties where they are elected; and throughout the state by any judge of a court of record, or by a minister or priest in regular communion with any religious society, so long as he continues to preach the gospel. Since 1851 Minnesota has had a similar statute; except that court commissioners are not mentioned, and instead the superintendent of the department for the deaf and dumb in the Deaf, Dumb, and Blind Institute of the state is given authority. In both Minnesota and Wisconsin Quakers, on complying with the law as to return of certificate, are permitted to use their own forms;[1426] a minister, before being empowered to act, is required to file a copy of his credentials of ordination with the clerk of the court in some county, and receive from him a proper certificate thereof; and the magistrate or other person performing the ceremony may in all cases examine at least one of the parties on oath as to the legality of the intended marriage.[1427]
[Footnote 1426: But if the marriage among Quakers "does not take place in such meeting, such certificate shall be signed by the parties, and at least six witnesses present, and filed for record" with the county clerk: Gen. Stat. of Minn. (1894), I, 1266; the same in ibid. (1866), 408; and nearly the same in ibid. (1851), 271, 272.]
[Footnote 1427: The basis of the Wisconsin law of solemnization may be found in the Stat. (1838-39), 139, 140, giving authority to justices of the peace in their counties, to judges and commissioners of the supreme court, and to ordained ministers; and containing the provision regarding the filing of credentials with the clerk of the district court. See also Rev. Stat. (1849), 391-93, and ibid. (1858), 616-18; including the same provisions regarding celebration as Ann. Stat. (1889), I, 1354-56, except that the present authority for court commissioners in the counties is conferred by act of March 13, 1871: Gen. Laws, 99.
The Minnesota Law in Rev. Stat. of the Ter. (1851), 270-72, is practically the same regarding the celebration as in Gen. Stat. of the State (1866), 406, except the provisions in the latter regarding oath and credentials; and the law of 1866 is retained in WENZELL AND LANE, Gen. Stat. (1894), I, 1264-66, except that the provisions for solemnization by the superintendent of the deaf and dumb appear in Laws (1885), chap. 38, p. 47. Licentiates are also required to take out a certificate: Gen. Laws (1901), 285.]
In the remaining fifteen western states, not yet considered, there is relative uniformity regarding the law of celebration. Originating even as organized territories in recent years, these commonwealths have profited by the experience of the older communities whence their people have mainly come, and so there has been less reason for experimentation. The history of their marriage laws in general is therefore less eventful. Everywhere the optional civil or religious celebration is recognized. (1) In all cases justices of the peace are authorized to conduct the solemnization. Occasionally, as in Alaska, North Dakota, Oregon,[1428] Nevada, and Washington, their power is expressly confined to their respective counties or districts; elsewhere no such restriction appears. (2) Everywhere without exception the judges or justices of the higher courts of record are granted authority, although the particular courts named vary considerably from state to state. Thus, in Colorado, Kansas, Nebraska, and Wyoming the statute simply allows any "judge" to perform the ceremony; while in North Dakota the same power is bestowed upon every judge of a "court of record," and in Alaska and Oregon, on any "judicial officer" within his proper jurisdiction. It is granted to judges of the district courts, in their respective districts, in Nevada; to judges of the supreme and district courts, in Montana and Utah; to these same magistrates and to judges of probate, in Idaho; to the justices of the supreme court and the judges of superior courts, in California and Washington; to the justices of the supreme court and the judges of the circuit or county courts, in South Dakota; and to these same judges and to those of the district courts, in Iowa. (3) Throughout these states, in every instance, all ordained ministers, priests, or preachers of the gospel, duly authorized by the usages of their respective churches or societies, are allowed to celebrate matrimony; but there is wide diversity in the phraseology of the statutes. Their power is not limited to a particular place, but may be exercised anywhere in the state. Only in one case among these fifteen states, Nevada, is the clergyman required to exhibit his credentials and take out a formal license. Sometimes, as in Kansas, Nevada, and North Dakota, the Friends are expressly permitted to observe their own rites; or, as in California, Iowa, Nebraska, Montana, Washington, and the two Dakotas, there is a general clause in the law favoring all religious societies having peculiar methods of celebration. City mayors are allowed the same authority as magistrates and ministers in Iowa, Montana, Idaho, Utah, and South Dakota. By the law of the last-named state, as in New York, Indians are permitted to marry according to their own forms; and in the West, during the earlier stage of development, the governor has sometimes been granted authority to join persons in wedlock, such being the case formerly in Nevada and still in Idaho.
[Footnote 1428: The justice of the peace is not expressly given authority by the Oregon law; but in effect he is authorized by the general clause allowing "any judicial officer" to act within his proper jurisdiction: Codes and Stat. (1902), II, 1682.]
California, like New York, South Dakota, Wisconsin, Minnesota, and some other states, requires special precautions on the part of the person performing the ceremony, tending to prevent illegal or clandestine unions. He must first demand the "presentation of the marriage license; and if he has any reason to doubt the correctness of its statement of facts" as to identity of the persons, their names, ages, and places of residence, or the consent of their parents or guardians in case of minors, he must satisfy himself of the same; and "for that purpose he may administer oaths and examine the parties and witnesses in the like manner as the county clerk does before issuing the license." Idaho has a similar law; and that of Colorado allows the minister or magistrate, in case of minors having no parents or guardian, to perform the ceremony or not, according to his own judgment.[1429]
[Footnote 1429: DEERING, Codes and Stat. of Cal. (1886), II, 25, 26; Rev. Stat. of Idaho (1887), 302; MILLS, _Ann. Stat. of Col._ (1891), II, 1681.]
The statutes of many of the middle and western states require the presence of witnesses at the celebration. One witness is sufficient in South Dakota,[1430] as formerly in Dakota Territory; but two witnesses must attend in Alaska, Michigan, Montana, Minnesota since 1851, Idaho since 1864, Nebraska since 1867, Nevada since 1861, North Dakota since 1890, Oregon since 1854, Washington since 1866, Wisconsin since 1849, and Wyoming since 1869. New York requires one witness when the celebration takes place before a minister or a magistrate, and two witnesses when the marriage is by a written contract. The statutes sometimes contemplate the presence of witnesses when in terms it is not prescribed. Such is the case, for example, in New Jersey and California.[1431] In Pennsylvania the provision of 1701 requiring the attendance of twelve witnesses has not been expressly repealed; but, as already remarked, it is construed by the courts as being merely "directory," and "it has been ascertained that the requirement is no longer enforced. Two witnesses must be present" in that state "when any marriage is solemnized by the parties themselves."[1432]
[Footnote 1430: The solemnizer is required to ascertain the "name and place of residence of the witness, or two witnesses, if more than one is present": Ann. Stat. of S. D. (1899), II, 1022.]
[Footnote 1431: Witnesses are mentioned in the form of return to be made by the solemnizer: Gen. Stat. of N. J. (1896), II, 2006: DEERING, Codes and Stat. of Cal., II, 26, 27.]
[Footnote 1432: WRIGHT, Report, 57.]
No definite formula for the celebration is anywhere prescribed. Sometimes the statute contains a statement to that effect. Thus in Alaska, California, Idaho, Michigan, Minnesota, Nebraska, Nevada, North Dakota, South Dakota, Oregon, Pennsylvania, Washington, Wisconsin, and Wyoming it is expressly provided that no particular form for the ceremony is required, but the parties must solemnly declare in the presence of the person officiating, and usually of the attending witnesses, that they take each other as husband and wife. The same is true of New York, if the ceremony is performed by a magistrate; but when a clergyman officiates, it may be "according to the forms and customs of the church or society to which he belongs."[1433] In the case of Quakers or religious societies having as such any peculiar mode of celebrating marriage, the law usually provides, as already seen, that the ceremony or other mode of joining in wedlock shall be in accordance with their customs; and "where not so stated it is, of course, implied."[1434]
[Footnote 1433: On witnesses and the form of ceremony see DEERING, Codes and Stat. of Cal. (1886), II, 26 (form); _Rev. Stat. of Idaho_ (1887), 302; HOWELL, Gen. Stat. of Mich. (1882-90), II, 1619, 3602; Gen. Stat. of Minn. (1894), I, 1265; ibid. (1866), 407; Rev. Stat. of Minn. (1851), 271; _Comp. Codes and Stat. of Mont._ (1895), 477; Comp. Stat. of Neb. (1899), 757; Comp. Laws of Nev. (1900), 113; _Rev. Stat. of N. Y._ (1889), IV, 2597; same in ibid. (1827-28), 139, 140; _Codes and Gen. Laws of Ore._ (1892), II, 1319; same in Gen. Laws (1862), 86: Ann. Codes and Stat. of Wash. (1897), I, 1175, 1176; Rev. Stat. of Wyo. (1899), 791; Rev. Stat. of Wis. (1849), 392; also in Ann. Stat. of Wis. (1889), I, 1355.]
[Footnote 1434: Cf. WRIGHT, Report, 56.]
The laws of Montana, South Dakota, and formerly those of Idaho and California, contain a peculiar definition of matrimony and a provision for contract by "declaration," which, taken together, in effect allow persons to solemnize their own marriage, and to do so clandestinely, if they see fit. So by the California statute, as it stood from 1873 to 1895, marriage is defined as a "personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations." Furthermore, "consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases." "Persons married without the solemnization provided for" in the law "must jointly make a declaration of marriage substantially showing: 1. The names, ages and residences of the parties; 2. The fact of marriage; 3. That the marriage has not been solemnized. If no record of the solemnization of a marriage heretofore contracted be known to exist, the parties may join in a written declaration ... , substantially showing: 1. The names, ages, and residences of the parties; 2. The fact of marriage; 3. That no record of such marriage is known to exist." This declaration must be "subscribed by the parties and attested by at least three witnesses." These provisions are essentially vicious; and they gave rise to the so-called "contract" marriages, famous in California judicial history, the most notorious case being that of Sharon v. Sharon, which in its various phases was for years before the state and federal courts.[1435] So great were the evils of clandestine marriages, and the resulting conflicting and often false claims to property or inheritance under this law, that in 1895 a tardy remedy was sought in legislation. Section 75 of the code, as above quoted, allowing a declaration of marriage, was repealed outright. The definition in sec. 55 was amended to read, "Consent alone will not constitute marriage; it must be followed by a solemnization authorized by this Code;" and for the future sec. 57, instead of its former dangerous terms, declares that "consent to a marriage and solemnization thereof may be proved under the same general rules of evidence as facts are proved in other cases."[1436]
[Footnote 1435: Sharon v. Sharon, 67 Cal. (1885), 185 ff.; 75 Cal. (1888), 1-78; 79 Cal. (1889), 633-703; 84 Cal. (1890), 424 ff. For other cases of "contract" marriages under the code of 1873, see Kelly v. Murphy, 70 Cal. (1887), 560; Kilburn v. Kilburn, 89 Cal. (1891), 46; People v. Beevers, 99 Cal. (1893), 286; Toon v. Huberty, 104 Cal. (1894), 260; People v. Lehman, 104 Cal. (1894), 631; Hinckley v. Ayres, 105 Cal. (1895), 357. From 1849 to 1873 common-law marriages were good in California: see Graham v. Bennett, 2 Cal. (1852), 503; Letters v. Cady, 10 Cal. (1858), 530; Case v. Case, 17 Cal. (1861), 598; People v. Anderson, 26 Cal. (1864), 130; estate of Charles Beverson, 47 Cal. (1874), 621; estate of McCausland, 52 Cal. (1878), 568; in re Briswalter, 72 Cal. (1887), 107; White v. White, 82 Cal. (1890), 427. The facts in the four cases last mentioned arose before 1873.]
[Footnote 1436: DEERING, Codes and Stat. of Cal. (1886), II, 18, 19, 20, 27; amended by act of March 26, 1895: Stat. and Amendments to the Codes (1895), 121. Compare the present law of South Dakota: Ann. Stat. (1899), II, 1018, 1022; Rev. Codes of S. D. (1903), 596; and that of Montana: Comp. Codes and Stat. (1895), 475, 477, 478, which in the definition declares that consent "must be followed by a solemnization, or by a mutual and public assumption of the marital relation." In the use of the word "public" the present law of Montana differs from that of California previous to 1895. Formerly the laws of Idaho and California were identical; but now the provision for declaration is omitted from those of Idaho, although the prescribed celebration is not essential to a valid marriage. Cf. Comp. and Rev. Laws of Idaho (1875), 642, 645; Rev. Stat. (1887), 301.]
Fourteen states of the middle and western group have provided that when a marriage has been solemnized by a person professing to be authorized, but not authorized by law for that purpose, its validity is "not affected by such lack of authority, if it is in other respects valid and consummated with the belief of the parties, or either of them, that they have been lawfully married."[1437] These states are Idaho, Indiana, Michigan, Minnesota, Montana, New York, Nebraska, North Dakota, Nevada, Oregon, Utah, Washington, Wisconsin, and Wyoming. In all cases the person falsely representing himself to have authority is made liable to severe penalties.[1438] California requires that "marriage must be licensed, solemnized, authenticated, and recorded;" but it is not invalidated by non-compliance with the law "by other than the parties" themselves.[1439] Idaho, Montana, and South Dakota have similar statutes, although the act of the parties is not thus excepted.[1440] In Iowa "marriages solemnized, with the consent of parties, in any other manner" than presented by the statute, "are valid; but the parties thereto, and all persons aiding or abetting them, shall forfeit to the school fund the sum of fifty dollars each; but this shall not apply to the person conducting the ceremony, if within ninety days thereafter he makes the required return to the clerk of the district court."[1441] In Indiana "no marriage shall be void or voidable for want of license or other formality required by law, if either of the parties thereto believed it to be legal marriage at the time."[1442] The person solemnizing, in Colorado, is protected by the duly issued license, if he has no personal knowledge of the incompetency of the parties.[1443] In Ohio, "when the person who solemnized the marriage had no license, it was held that it was to be inferred that the parties openly and mutually consented to a contract of present marriage;" and when they thereafter cohabited as husband and wife, "this consent constituted a legal marriage, and the man having then a wife living might properly be convicted of bigamy."[1444]
[Footnote 1437: Want of authority to solemnize does not avoid a marriage: State v. Brecht, 41 Minn., 50, 54; 42 N. W. Rep., 602; Martin v. Ryan, 2 PINNEY, Wis. Reports, 24.]
[Footnote 1438: For unauthorized solemnization and the penalty see Rev. Stat. of Idaho (1887), 303, 761: a misdemeanor punished by confinement in the county jail not exceeding six months, or a fine of not more than $300, or both; Laws of Ind. (1897), 129 (March 4); Rev. Stat. (1896), I, sec. 2148: a fine of $50 to $500, to which may be added imprisonment in the county jail for from ten days to three months; HOWELL, Gen. Stat. of Mich. (1883), II, 1620: a misdemeanor punishable by imprisonment in the county jail of not more than one year, or a fine of $50 to $500, or both; Gen. Stat. of Minn. (1894), I, 1266: a misdemeanor, with not over one year's imprisonment, or a fine of not exceeding $500, or both; Comp. Codes and Stat. of Mont. (1895), 477; Comp. Stat. of Neb. (1899), 757: a misdemeanor, with not more than one year in jail, or a fine not to exceed $500; Comp. Laws of Nev. (1900), 114: a fine of not more than $500, or imprisonment till paid; Codes and Gen. Laws of Ore. (1892), II, 1320-22; I, 967: not more than one year in jail, or a fine of $100 to $500; and the same penalty for illegal solemnization and for illegally issuing a license by the clerk; Rev. Stat. of Utah (1898), 331; Laws (1888), 90: not exceeding three years in the state prison, and the same penalty for false personation of parent or guardian, or for forging a certificate of consent; Ann. Code of Wash. (1897), I, 1175, 1178; Ann. Stat. of Wis. (1889), I, 1356: not exceeding one year in jail, or a fine of not more than $500, and the same for illegal solemnization, making false certificate, or for false personation; Rev. Stat. of Wyo. (1899), 791, 792: a misdemeanor, and the same penalty as in Wisconsin for unauthorized solemnization, which is prescribed also for false certificate or false record by the clerk; Ann. Rev. Stat. of Ohio (1897), II, 3017: imprisonment for six months, or a fine of $500, or both; Laws of N. D. (1890), 278: a misdemeanor with fine of $100 to $500 and costs, or imprisonment in the county jail for from three months to one year.]
[Footnote 1439: Amendments to the Civil Code (1895), chap. 68.]
[Footnote 1440: Rev. Stat. of Idaho (1887), 302; Comp. Codes and Stat. of Mont. (1895), 476; Stat. of S. D. (1899), II, 1020.]
[Footnote 1441: Code of Iowa (1897), 1124; same in ibid. (1860), 428. Cf. ibid. (1851), secs. 1474, 1475. Thus the common-law contract is good: see Blanchard v. Lambert, 43 Ia. Reports, 228.]
[Footnote 1442: HORNER, Rev. Stat. of Ind. (1896), II, sec. 5330; BURNS, Ann. Stat. (1901), III, 705.]
[Footnote 1443: MILLS, Ann. Stat. of Col. (1891), II, 1680. The Gen. Laws of Col. (1877), 613, show the exigencies of pioneer life in the provision that "all marriages which have been solemnized in this state, whether by any president or judge of any mining district, elected under and acting by the laws thereof," shall be valid. So in Oregon by an act of Jan. 17, 1854 (Stat. of Ore., 494), marriages contracted, with the consent of the parties, "when their residence is remote from any person duly authorized to solemnize such marriage, in any other manner than is prescribed, shall be valid; Provided that no legal impediment shall exist thereto; such contracts shall be made in writing duly attested, and shall be recorded in the office of the recorder of deeds of the proper county, within sixty days."]
[Footnote 1444: Carmichael v. State, 12 Ohio Reports, 553.]
b) Forbidden degrees: void and voidable marriages.--Nineteen out of the twenty-five middle and western states have each provided a statutory definition of marriage.[1445] In Oregon, Indiana, and in Washington since 1854, it is defined briefly as a civil contract; in Alaska it is a civil contract which may be entered into by males of twenty-one and females of eighteen years, if otherwise capable; in Colorado and Kansas it is "considered in law" as a civil contract to which the consent of the parties is essential; in Iowa[1446] since 1851, Nebraska since 1855, and Wyoming since 1869, it is a civil contract to which the consent of parties capable in law of contracting is necessary; in Michigan, Minnesota since 1866, Nevada since 1861, New York[1447] since 1828, and Wisconsin since 1849, "so far as its validity in law is concerned," it is a civil contract under the same conditions as in the last-named group of states. On the other hand, several commonwealths have sanctioned a definition which seems to imply the element of status in the marital relation. Thus by the laws of Idaho, Montana, South Dakota, California, and North Dakota, marriage is a personal relation, arising out of a civil contract to which the consent of parties capable of making it is necessary. In North Dakota, although marriage is a personal relation so arising, it must be "entered into, maintained, annulled, or dissolved" only as provided by law; and in California, since the reform of 1895, consent must be followed by a solemnization authorized by the code. Moreover, in South Dakota the consent to a marriage "must be to one commencing instantly, and not to an agreement to marry afterwards." The law of Ohio is similar;[1448] and in Idaho and California neither party to a nuptial contract is "bound by a promise made in ignorance of the other's want of personal chastity, and either is released therefrom by unchaste conduct" of the other, unless both participated therein.[1449]
[Footnote 1445: On the definition of marriage see Smith v. Smith, 17 N. Y. Rep., 76; and on marriage as a question of status, Sewall v. Sewall, 122 Mass., 156; Watkins v. Watkins, 135 Mass., 84.]
[Footnote 1446: "Marriage is a civil contract, requiring the consent of the parties capable of entering into other contracts, except as herein otherwise noted."--Code of Iowa (1897), 1123; cf. ibid. (1851), sec. 1464; ibid. (1873), sec. 2186.]
In all the states of the group under review, except in Colorado, New Jersey, and Pennsylvania, the age of consent to marriage is fixed by the law, or it may be inferred from its provisions. For males it is twenty-one in Alaska and Washington;[1450] eighteen in California, Delaware,[1451] Idaho,[1452] Indiana, Michigan, Minnesota, Montana, Nebraska, Nevada, New York, Ohio, Oregon, South Dakota, Wisconsin, and Wyoming; seventeen in Illinois; sixteen in Iowa,[1453] North Dakota,[1454] and Utah;[1455] and only fifteen in Kansas. For females it is eighteen in Alaska, Washington, Idaho, and New York; sixteen in Delaware, Indiana, Michigan, Montana, Nebraska, Nevada, Ohio, and Wyoming; fifteen in California, Minnesota, Oregon, South Dakota, and Wisconsin; fourteen in Illinois, Iowa, and Utah; thirteen in North Dakota; and only twelve in Kansas.
[Footnote 1447: "Marriage, so far as its validity in law is concerned, shall continue in this state a civil contract, to which the consent of parties capable in law of contracting, shall be essential."--Rev. Stat. of N. Y. (1827-28), II, 138; cf. ibid. (1889), IV, 2595.]
[Footnote 1448: "Mutual promises to marry in the future, though made by parties competent to contract, and followed by cohabitation as husband and wife, is not, in itself, a valid marriage."--Duncan v. Duncan, 10 Ohio Reports, 181.]
[Footnote 1449: Rev. Stat. of Idaho (1887), 302; DEERING, Codes and Stat. of Cal. (1886), II, sec. 62, p. 24: act of March 30, 1874, Amendments (1873-74), 185.]
[Footnote 1450: The Ann. Codes and Stat. of Wash. (1897), I, 1174, fixes the age when marriage may be contracted at twenty-one for males and eighteen for females; but elsewhere provision is made for written consent of parent or guardian before license may be issued to persons below these ages respectively: ibid., I, 1177.]
[Footnote 1451: It is provided by the Rev. Code of Del. (1874), chap. 75, sec. 1, "that a divorce may be granted in case the parties were, when married, below the ages specified (eighteen and sixteen), and did not voluntarily ratify the marriage after arriving at those ages;" and this is retained in Rev. Stat. (1893), 596. Cf. WRIGHT, Report, 30.]
[Footnote 1452: From 1864 to the act of Feb. 7, 1889, in Idaho, the ages of consent were respectively eighteen and sixteen for males and females; but in the last-named year eighteen was fixed as the age for both sexes: Laws (1863-64), 613: Gen. Laws (1889), 40.]
[Footnote 1453: Below the ages of sixteen and fourteen in Iowa "marriage is a nullity or not, at the option of the minor, made known at any time before he or she is six months older than said ages."--WRIGHT, Report, 30; see Code of Iowa (1897), 1123; ibid. (1873), sec. 2186.]
[Footnote 1454: North Dakota shows a retrogression. By the Rev. Code (1895), 608, the ages of consent to marriage are sixteen and thirteen: the same by the act of March 20, 1890: Laws, 276; which act had been superseded by that of March 9, 1891, Laws, 228, 229, which is in turn repealed by the act of 1895. Still earlier the laws of Dakota Territory had fixed the ages at eighteen and fifteen respectively: Code of Dakota (1883), sec. 36, p. 743; at sixteen and fourteen on May 7, 1862: Gen. Laws (1862), 390; and at fourteen and thirteen in 1866: Civil Code (1865-66), 11. By this last act the marriage of a woman under fourteen might be annulled, if contracted without consent of parent or guardian, and not followed by cohabitation, nor ratified after the girl attained that age.]
[Footnote 1455: Formerly the ages in Utah were fourteen and twelve: Laws (1888), 88-91; they were fixed at sixteen and fourteen respectively for males and females by the act of March 11, 1897: Laws, 40.]
The age below which the consent of parent or guardian is required for the marriage of a minor is prescribed in all cases, except in Alaska, Kansas, New York, and Michigan.[1456] Such consent must precede the granting of license; or, where the license system has not been adopted, it must be made known by certificate or otherwise to the person or society conducting the celebration before the ceremony may be performed.[1457] In all cases, save the three named, the age for males is twenty-one, except in Idaho, where it is eighteen. For females it is eighteen in all these states, except in Idaho, where it is sixteen; and in Pennsylvania and Wyoming, where it is twenty-one. Formerly in Delaware indented servants could not lawfully marry without the master's consent; and for so doing such persons offending must "serve their respective masters or mistresses six months after the time of their servitude by indentures or engagements has expired; and if any person being free, shall marry with a servant without such consent ... he or she ... shall pay to the master or mistress of the servant, if a man, ten pounds, and if a woman, five pounds; and the servant so married shall abide with the master or mistress according to indenture or engagement six months as aforesaid."[1458] Later the penalty for a free person marrying a servant, if a man, was fixed at thirty dollars, of if a woman, at fifteen.[1459]
[Footnote 1456: Solemnization against law as to age and parental consent does not invalidate: Parton v. Hervey, 1 Gray, 119, 122; Holtz v. Dick, 42 Ohio Reports, 791. In Kansas, 1859-67, the ages were twenty-one for males and eighteen for females: WEBB, Gen. Stat. (1897), II, 939, note.]
[Footnote 1457: In Oregon a license may be issued for the marriage of a minor without such consent, when there is no parent or guardian resident in the state, if the female has lived in the county where the license is applied for during six months: Codes and Gen. Laws (1892), II, 1321; Codes and Stat. (1902), II, 1684.]
[Footnote 1458: Laws (1797), II, 974.]
[Footnote 1459: Rev. Stat. of Del. (1853), as amended (1893), 594. This provision is now obsolete, though retained in the statutes.]
All the states under consideration have legislated concerning forbidden degrees of consanguinity. Relations in the direct line, with brothers and sisters, are, as elsewhere, always included; although many of the newer states and some of the older, have not thought it necessary to continue the solemn farce derived from ancient ecclesiastical usage of specifically interdicting wedlock with a grandparent or with a grandchild; and sometimes the connections by affinity are not mentioned, or, as in Wyoming, they are expressly exempted from the inhibitions. Frequently, however, a man is denied the privilege of taking his step-mother or his mother-in-law to wife,[1460] and in every state of the group, expressly or by implication,[1461] marriage between aunts and nephews, or uncles and nieces, is forbidden. Minnesota since 1851, and Wisconsin since 1839, prohibit marriage between persons nearer of kin than first cousins, computing by the rules of the civil law; and in effect the same is true of Utah.[1462] On the other hand, the statutes of Indiana, Ohio, Nevada, and Washington are more severe, allowing marriage only between persons "not nearer of kin than second cousins;" first cousins are likewise prohibited from intermarrying in Illinois, Kansas, Wyoming, the two Dakotas, Michigan, Pennsylvania, Oregon, and, apparently in Colorado;[1463] while in Alaska marriages are prohibited within the fourth degree of the whole or the half-blood. But in no instance is a union between a sister-in-law or a brother-in-law interdicted. In all cases marriages within the prohibited degrees are both incestuous and void, except in Delaware, Minnesota, Oregon, Pennsylvania, Indiana, and South Dakota, where they are only void; in New Jersey, where they are only voidable;[1464] in Washington, where they are only incestuous; and in Ohio, where they are not expressly declared to be either incestuous or void. However, in the three states last named such unions are forbidden and punished; and in general for violation of the law by the persons contracting or the person solemnizing marriages declared void or voidable severe penalties are often imposed.[1465] By exception, in Colorado, it is provided that nothing in the law regarding degrees "shall be so construed as to prevent the people living in that portion of the state acquired from Mexico from marrying according to the customs of that country."[1466]
[Footnote 1460: A marriage with a step-parent or parent-in-law is forbidden in Delaware, Iowa, Michigan, New Jersey, and Washington; apparently also in Pennsylvania. In the latter state marriages within the degrees of affinity, forbidden by the act of March 31, Laws (1860), 394, were legalized by the act of April 6, 1868; Laws of the Gen. Assem., 67; or the same in PEPPER AND LEWIS, Digest (1896), II, 2884.]
[Footnote 1461: Of course, such unions are included where marriage is expressly prohibited between persons nearer of kin than first or second cousins by the rules of the civil law.]
[Footnote 1462: In Utah marriage is forbidden within, but not including, the fourth degree of collateral kinship according to the rules of the civil law. Originally Iowa had the same rule as Minnesota: Code of Iowa (1843), 434.]
[Footnote 1463: First cousins are prohibited by act of March 10: Session Laws of Col. (1864), 108; the prohibition is retained in Gen. Laws (1877), 612; but omitted in Gen. Stat. (1883), 690, the change being made in Session Laws (1883), 243. But MILLS, Ann. Stat. (1891), sec. 1320, p. 931, declares the marriage of first cousins incestuous and void. See Laws of Pa. (1901), 597, for prohibition of marriage of first cousins; Laws of Ore. (1893), 41; Codes and Stat. of Ore. (1902), II, 1681.]
[Footnote 1464: Such marriages are voidable in New Jersey, "and until dissolved by a court of competent jurisdiction must in all collateral proceedings, be treated as valid."--Gen. Stat. (1896), II, 2003. Cf. Boylan v. De Inzer, 18 STEWART, N. J. Equity Reports, 485.]
[Footnote 1465: For example, in Colorado, knowingly contracting or solemnizing such a marriage is a misdemeanor subject to a fine of $50 to $500, or imprisonment from three months to two years, or both: MILLS, Ann. Stat. (1891), II, 1678; in Illinois incest is punished by imprisonment for not more than ten years, or twenty if the crime is that of father with daughter: HURD, Rev. Stat. (1898), 577; in Kansas, for contracting, solemnizing, or licensing a marriage within the forbidden degrees the offender is liable to a fine of from $100 to $1,000, or imprisonment for from three months to five years, or both: WEBB, Gen. Stat. (1897), II, 637; but elsewhere the law makes an incestuous marriage punishable by confinement and hard labor not exceeding seven years: ibid., II, 301; in Ohio, persons nearer of kin than cousins committing fornication or adultery are liable to imprisonment for from one to seven years: BATES, Ann. Stat. (1897), III, 3220; in Utah, solemnizing a marriage within the forbidden degrees is punished by not exceeding three years in the penitentiary, or a fine of not more than $1,000, or both: Rev. Stat. (1898), 331; by Laws (1888), 91; in Washington the penalty for contracting is imprisonment in the penitentiary for from one to ten years: Ann. Codes and Stat. (1897), I, 1175; in North Dakota it is a misdemeanor, with imprisonment not more than six months, or a fine of not more than $500: Laws (1890), 276; but for incest the penalty is one to ten years in the penitentiary: Rev. Codes (1895), 1273; in Delaware, a fine of $100: Rev. Stat. (1893), 593.]
[Footnote 1466: MILLS, Ann. Stat. of Col. (1891), II, 1678. On the Spanish laws and their effect see Smith v. Smith, 1 Texas Reports, 621; 46 Am. Decis., 121, note, 130-34.]
In these states the grounds for prohibiting wedlock other than kinship or affinity are as varied, confusing, and contradictory as in New England or the southern group. For the same cause a contract declared void in one state may be voidable or merely forbidden and punished in another. The statutes disclose a great diversity of conditional or qualifying clauses which render it almost hopeless to make any trustworthy generalizations. Thus bigamous marriages are void or voidable by judicial decree in California, Delaware, Idaho, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Oregon, Pennsylvania,[1467] South Dakota, Utah, Wisconsin, and Wyoming; while in Colorado,[1468] Illinois, Ohio, and Washington they are prohibited and made punishable. In Michigan, Minnesota, Nevada, and Wisconsin the law applies only when the marriage was solemnized in the state; while in California, Idaho, Minnesota, North Dakota, New York, and South Dakota such unions are void or voidable unless, as expressed in the California statute, "the former husband or wife was absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or was generally reputed or believed by such person to be dead" when the second marriage was contracted; "in either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal."[1469] Illinois and Ohio have each a similar provision.[1470]
[Footnote 1467: Sec. 11 of the Digest of the Laws of Pa. (1883) provides that "in all cases where a supposed or alleged marriage shall have been contracted which is absolutely void by reason of one of the parties thereto having a husband or wife living at the time, the court of common pleas shall have power to decree the said supposed or alleged marriage to be null and void upon the application of the innocent or injured party;" and this provision is still in force: PEPPER AND LEWIS, Digest (1896), I, 1634. Now, as in 1785, a bigamous marriage is a ground of divorce: ibid., I, 1633. MYERS, Rev. Stat. of Ill. (1895), 545, provides that "no divorce shall in any wise affect the legitimacy of children, except where the marriage shall be declared void on the ground of a prior marriage;" and Colorado has the same provision: MILLS, Ann. Stat. (1891), I, 1035.]
[Footnote 1468: A bigamous marriage is ground for divorce in Colorado: MILLS, Ann. Stat., III, 4341.]
[Footnote 1469: See Amendments to the Civil Code of Cal. (1897), sec. 61. Cf. secs. 82-84 of DEERING, Codes and Stat. (1886), II, 22, 28, 30. In New York the same exception is made when either spouse has been "finally sentenced to imprisonment for life": Rev. Stat. (1827-28), 139; ibid. (1889), IV, 2596.]
[Footnote 1470: BATES, Ann. Rev. Stat. of Ohio (1897), III, 3220; MYERS, Rev. Stat. of Ill. (1895), 445.]
On the abrogation of polygamy, Utah had a problem to solve analogous to that of the southern states after the enfranchisement of the negroes. By an act of March 9, 1896, rights of inheritance were secured to the issue of bigamous and polygamous marriages; and a few days later, by general enactment, the children of such unions "heretofore contracted between members of the Church of Jesus Christ of Latter-day Saints, born on or prior to the fourth day of January," 1896, were legitimated.[1471]
[Footnote 1471: Laws (1896), 128, 129, 271, 272.]
The laws of California, Idaho, Michigan, Minnesota, Nebraska, North Dakota, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming render a marriage void or voidable when entered into by either person through force or fraud;[1472] those of New York,[1473] when force, fraud, or duress has been practiced; and those of Nevada, when fraud has been proved.[1474] In Colorado the marriage of a female obtained by force or fraud is prohibited and punished; in Iowa, Kansas, Montana, and Nevada, when obtained by force, menace, or duress; in Illinois, Montana, and New York, when the marriage of either person has been gained through false persuasion; while New Jersey, in more general phrase, treats as void the marriage of a female "against her will."
[Footnote 1472: In Pennsylvania force or fraud in the marriage is a ground for divorce: PEPPER AND LEWIS, Digest (1896), I, 1635; ibid. (1902), II, 1830.]
[Footnote 1473: STOVER, Code of Civil Proced. (1892), II, 1627.]
[Footnote 1474: In Idaho, Michigan, Minnesota, Nebraska, New York, Oregon, Utah, Wisconsin, and Wyoming these marriages are not voidable when there has been subsequent voluntary cohabitation; in New York, Oregon, and Washington they are voidable only at the suit of the injured party; and in New York, only on a decree rendered during the lifetime of the parties.]
Marriages are also void or, usually, voidable when either person was of unsound mind, as in California, Idaho, or South Dakota; or insane or an idiot, as in Illinois, Indiana, Iowa, Kansas, Michigan, Nebraska, Utah, Wisconsin, and Wyoming;[1475] or wanting in age or understanding, as in Indiana, Kansas, Minnesota, Nevada, New Jersey, New York, Oregon, Washington, and Wisconsin;[1476] or physically incompetent, as in California, Idaho, Iowa, Kansas, Montana, Nebraska, New Jersey, New York, Wyoming, and the two Dakotas;[1477] or below age of legal consent, as in all the last-named states, and also in Michigan, Nevada, Ohio, Utah, Wisconsin, and Wyoming.[1478]
[Footnote 1475: In Idaho a marriage is voidable for unsound mind, unless after the removal of the disability the parties freely cohabited; but in Iowa, when either party was impotent, insane, or an idiot, a marriage is not declared void by the statute, but provision is made for its annulment: MCLAIN, Ann. Code (1888), I, 897. By the law of Michigan, such a marriage is voidable, if solemnized in the state; but there, as also in New York, Nebraska, and Wyoming, in case of lunacy, a marriage is not voidable when the parties have freely cohabited after the lunatic recovered.]
[Footnote 1476: By the Indiana law such voidable marriages shall be declared void on application of the incapable party, and the children thereof shall be legitimate. The same is true in Kansas, but there cohabitation after incapacity ceases is a sufficient defense to the action for annulment. The law of Minnesota is similar. In Nevada and Nebraska a marriage is "not voidable for want of age, if after attaining the age of consent the parties for any time freely cohabited; nor for want of understanding, if after restoration to reason" they so cohabited. According to the New York statute a marriage is "not voidable on account of want of age at suit of the party who was of age of consent; nor where it appears that the parties after attaining such age freely cohabited; nor of a female under sixteen years of age if she had parental consent to the marriage," or when she ratified it after reaching that age. The law of Oregon is practically the same. In Michigan and Wyoming a marriage of persons below the age of consent is void if they separate during nonage and do not afterward cohabit.]
[Footnote 1477: In Nebraska, New York, and Wyoming an action for annulment on the ground of impotence must be brought in two years; while for this cause in Colorado, Indiana, Illinois, Oregon, and some other states a "divorce" will be granted. Physical incapacity is cause for divorce in Michigan; and suit to "annul" a marriage on this ground must be brought within two years: MILLER, Comp. Laws (1899), III, 2664.]
[Footnote 1478: By the Ohio law marriages "contracted by male persons under the age of eighteen and females under the age of fourteen [now sixteen] are invalid, unless confirmed by cohabitation after arriving at those ages respectively; and such marriage, not so confirmed, does not subject a person to punishment for bigamy for contracting a subsequent marriage while the first husband or wife is living": see Shafher v. State, 20 Ohio Reports, 1.]
Several states of this group, like those of the South, have attempted to check miscegenation by statute. Marriages between white persons and negroes or mulattoes are thus declared illegal and void in California,[1479] Colorado, Delaware, and Idaho; and with negroes or Mongolians in Utah. The prohibition of such unions in Nebraska extends to persons having one-fourth, and in Indiana to those having one-eighth, negro blood; while in Oregon since 1866 it has been applied to those with one-half Indian or one-fourth negro or Chinese blood in their veins.[1480] In Nevada similar unions, without specification of the degree of dark blood, are forbidden and punished. On the contrary, Michigan, by an act of 1883, provides that "all marriages heretofore contracted between white persons and those wholly or in part of African descent are ... valid and effectual in law for all purposes, and the issue" shall be deemed legitimate.[1481]
[Footnote 1479: California does not directly prohibit the intermarriage of whites and Chinese; but the county clerk is commanded not to "issue a license authorizing the marriage of a white person with a negro, mulatto, or Mongolian": DEERING, Codes and Stat. (1886), II, 25, sec. 69.]
[Footnote 1480: Until Laws of Ore. (1893), 41, "Kanaka" blood was included in the prohibition. Cf. Codes and Stat. (1902), II, 1681, 1682; I, 274.]
[Footnote 1481: Laws (1883), 16; also in HOWELL, Gen. Stat. (1883), II, 1619; and retained in the act of June 15: Pub. Acts (1899), 387.]
Among the commonwealths of this group Delaware alone has the honor of trying through legislation to put some limit upon the increase of the indigent and incapable classes, the marriage of paupers being forbidden under penalty. Michigan has taken a still more important step in advance, setting a worthy example of social legislation which ought to be followed throughout the country. By a stringent law of 1899, it is declared that no person afflicted with certain syphilitic diseases "shall be capable of contracting marriage." For so doing the transgressor shall be "deemed guilty of felony and upon conviction thereof ... , shall be punished by a fine of not less than five hundred dollars or more than one thousand dollars, or by imprisonment in the state's prison ... not more than five years, or by both such fine and imprisonment in the discretion of the court." Furthermore, it is especially provided that either husband or wife may be examined as a witness; and in all cases arising under the act a physician who has attended or prescribed for any person so affected "shall be compelled to testify to any facts found by him from such attendance."[1482]
[Footnote 1482: Pub. Acts of Mich. (1899), 387, 388 (June 15). The law applies to "syphilis and gonorrhœa."]
An enlightened policy in a parallel direction is revealed by a recent law of Minnesota, similar to that of Connecticut, prohibiting the marriage of persons either of whom is epileptic, imbecile, feeble-minded, or afflicted with insanity, when the woman is under forty-five years of age;[1483] and Kansas has just enacted the same restraint.[1484] On the other hand, in no instance, apparently, has any effort yet been made to prevent the clandestine marriage outside the state of residents who thus seek to evade the requirements of their own laws.[1485]
[Footnote 1483: "No woman under the age of forty-five (45) years or man of any age, except he marry a woman over the age of forty-five (45) years, either of whom is epileptic, imbecile, feeble minded, or afflicted with insanity, shall hereafter intermarry, or marry any other person within this state."--Gen. Laws of Minn. (1901), 334, 335.]
[Footnote 1484: Session Laws of Kan. (1903), 373, 374.]
[Footnote 1485: Except that in Delaware, if the parties to any marriage prohibited for consanguinity or affinity, or for miscegenation, "although the same may have been solemnized in another state, shall cohabit as husband and wife in this state, they shall each be deemed guilty of a misdemeanor and upon conviction thereof shall be fined $100."--Rev. Stat. (1893), 593.]
Very generally, as elsewhere, indirect encouragement to matrimony is given by the suspension of prosecution or penalty, and through the legitimation of children. By the laws of Dakota and California, "every contract in restraint of the marriage of any person, other than a minor, is void;"[1486] and the same is true in the latter state regarding conditions of ownership imposing like restraints; but this rule "does not affect limitations when the intent was not to forbid marriage, but only to give the use until marriage."[1487] In many cases it is provided that marriages contracted out of the state are valid, if valid where they are formed; but Pennsylvania is the only commonwealth in the Union, except Georgia, directly promoting wedlock, her statute declaring that "all marriages not forbidden by the law of God shall be encouraged."[1488]
[Footnote 1486: DEERING, Codes and Statutes (1886), II, sec. 1676, p. 311.]
[Footnote 1487: Ibid., sec. 710, p. 171; according to the amendment of March 30, 1874: Amendments to Codes (1873-74), 218. This provision "leaves no doubt but that the limitation of an estate to a widow so long as she remains unmarried is good;" and the "rules which govern a devise in restraint of a widow's marriage, apply to like devise in restraint of a widower's marriage: Bostwick v. Blades, 4 Am. Law Rec., 729 (Md. Ct. of App.)." See EDITOR DEERING'S valuable note in Codes and Stat., II, 171, where cases are cited.]
[Footnote 1488: The history of the various topics treated in this section b) for the several states may be traced as follows: (1) California: Stat. (1850), 424, 425; Comp. Laws (1853), 175-77; Acts Amendatory of the Codes (1873-74), 181 ff.; Stat. (1880), 121 ff.; DEERING, Codes and Stat. (1886), II, 18-37; Amendments to Codes (1895), 121; (2) Colorado: _Sess. Laws_ (1861), 313; ibid. (1864), 108 ff.; Gen. Laws (1887), 611-13; Gen. Stat. (1883), 690-94; MILLS, Ann. Stat. (1891), II, 1675 ff.; (3) Delaware: Rev. Stat. (1893), 593, 594; (4) Idaho: Laws (1863-64), 613 ff.; ibid. (1864), 397; ibid. (1867), 71-73; Comp. and Rev. Laws (1875), 642-45; Gen. Laws (1889), 40, 278-80; Rev. Stat. (1887), 301-3; (5) Illinois: HURD, Rev. Stat. (1898), 630, 577, 1067-69; (6) Indiana: Laws of the State (1897), 129; Indiana Stat. (1896), II, secs. 5324 ff.; (7) Iowa: Code (1860), 747; ibid. (1873), 628; ibid. (1897), 1123-25, 1940; (8) Kansas: Stat. (1855), 488, 489; Laws (1857-58), 326; Gen. Laws (1859), 563, 564; Laws (1870), 157, 158; WEBB, Gen. Stat. (1897), II, 637 ff., 301, 339; (9) Michigan: Laws of the Ter. (1871-84), I, 30-32, 202, 203, 646-49; II, 412-14; III, 1191, 1192; HOWELL, _Gen. Stat._ (1882-90), II, 1618-20; Comp. Laws of Mich. (1899), III, 2645-52; (10) Minnesota: Rev. Stat. (1851), 270-72; _Gen. Stat._ (1866), 406-8; WENZELL AND LANE, Gen. Stat. (1894), I, 1264-66; (11) Montana: Comp. Codes and Stat. (1895), 474-78; (12) Nebraska: Laws (1855), 209-11; ibid. (1856), 150-52; Stat. (1867), 254-57; Comp. Stat. (1899), 756-58; (13) Nevada: Laws (1861), 93-96; ibid. (1867), 88, 89; ibid. (1881), 107, 108; Comp. Laws (1900), 112-15; (14) New Jersey: Laws of the State (1800), 158-60; Gen. Stat. (1896), II, 2003-6; I, 1064, 1066; (15) New York: Rev. Stat. (1829), II, 138-41; ibid. (1889), IV, 2596-98; STOVER, _Code of Civil Proced._ (1892), II, 1627, 1632 ff.; ibid. (1902), II, 1830-35; (16) North Dakota: Laws (1890), 276-79; ibid. (1891), 228, 229; Rev. Codes (1895), 608-11; Revised Codes (1899), 692-95, 1440, 1441, 1454, 1455; (17) Ohio: CHASE, _Stat. of Ohio and N. W. Ter._ (1833-35), I, 101, 102, 126, 354, 355, 672, 673; II, 1407, 1408; BATES, Ann. Stat. (1897), II, 3015-18, 2211; III, 3220; (18) Oregon: Laws (1843-49), 36, 80, 81; Stat. (1853-54), 492-94; Code of Civil Proced. and Other Gen. Laws (1862), 85-88; Codes and Gen. Laws (1892), II, 1317 ff.; I, 967; Act of Oct. 24, 1866: Acts and Res. (1866), 10, 11; (19) Pennsylvania: PEPPER AND LEWIS, Digest (1896), II, 2878-83; (20) South Dakota: Stat. (1899), II, 1018-25, 1917; _Rev. Codes_ (1903), 596-99; (21) Utah: Laws (1888), 88-91; _Rev. Stat._ (1898), 329-31; (22) Washington: Stat. of the Ter. (1854), 404, 405; ibid. (1865-66), 80-85; _Ann. Codes and Stat._ (1897), I, 1174-78; II, 1952; (23) Wisconsin: _Stat. of the Ter._ (1838-39), 139, 140; Rev. Stat. (1849), 391-93; _Ann. Stat._ (1889), I, 1354-56; Wis. Stat. (1898), I, 1692-94; (24) Wyoming: Rev. Laws (1870), 458-61; Rev. Stat. (1887), 415-17; ibid. (1899), 790-92, 1213; (25) Alaska: _U. S. Statutes at Large_, XXXI, 494, 495. Laws since 1899 are cited in the previous footnotes.]
c) Certificate and record.--The laws of the middle and western states have reached substantial harmony regarding the preliminaries of marriage. The provisions for license and the other leading features of matrimonial administration in their main features are much the same, except in a few of the older commonwealths, where the system of ecclesiastical banns and some other peculiar usages are still maintained. Thus in Delaware, by the act of 1790, no minister is allowed to conduct the ceremony without first receiving a license authorizing the persons to wed, or, instead, unless the banns shall "be published between such persons intending to marry, at some church, chapel, meetinghouse, or stationary place of public religious worship belonging to the district, or of the congregation wherein the woman so intending to be married shall be resident, or in the next adjacent congregation of the same society, on the two several Sundays before the celebration thereof, immediately after divine service." The license is granted by the president or commander-in-chief duly attested under his sign manual; and it is issued from the office of the secretary of state. "In order to avoid fraud and collusion in obtaining such license," the person applying is required to enter into bond with good security in such sum as the president shall judge proper.[1489] All marriage licenses are to be lodged with the prothonotaries and justices of the peace of the respective counties, or with such of them as the secretary may think fit for convenience of the people, and these officers are required to submit a report every six months.[1490] After a century the system thus outlined is still maintained in its essential features. License or banns, "published at some place of stated religious worship, within the hundred of the woman's residence, on two Sabbaths immediately after divine service," is yet sanctioned. The requirement of bond is still retained.[1491] It is the duty of the clerk of the peace to designate at least six justices of the peace in his county to dispense licenses; and the state derives a revenue of two dollars for each license issued. By a provision still appearing in the statute-book, though obsolete in practice, negroes or mulattoes may be married without license or publication of banns; provided "that each party (being free) shall produce the certificate of the justice of the peace of the county that such party has made before him satisfactory proof of freedom; or (being ... servant), shall produce the written consent of his master or mistress."[1492]
[Footnote 1489: Following is the form of the marriage-license bond: "That if there shall not hereafter appear any lawful let or impediment, by reason of any precontract, consanguinity, affinity, or any other just cause whatsoever, but that (the parties) may lawfully marry; and that there is not any suit depending before any judge, ecclesiastical or civil, for or concerning such precontract, and also if the said parties, and each of them, are of the ages aforesaid, to wit, female of eighteen and male of twenty-one years, and are not under the tuition of his or her parents, or have the full consent of his or her parents or guardians, respectively, to the said marriage; and if they, or either of them, are not indented servants and do and shall save harmless, and keep indemnified the president and his successors, for and concerning the premises, and shall likewise save harmless and keep indemnified the minister or preacher of the gospel, who shall join the said parties in matrimony, for or by reason of his so doing; then the obligation to be void, else to remain in full force; which said bond shall be filed of record in the office of the secretary."-Laws of Del. (1797), II, 974, 975.]
[Footnote 1490: By act of June 15, 1793: in Laws of Del. (1797), II, 1127, 1128.]
[Footnote 1491: Rev. Stat. (1893), 103.]
[Footnote 1492: Ibid., 594; and cf. ibid. (1874), 473.]
The legislation of Ohio shows almost equal conservatism. For many years after the organization of the Northwest Territory a triple optional system of banns, license, or posting was there maintained. The law of 1788 requires that either on Sundays, holidays, or other days of public worship, in the towns where the bride and groom respectively dwell, the banns shall be thrice published; or that a written notice, under the hand and seal of a judge or a justice of the peace of the county, shall be affixed in some public place in such towns; or else a license shall be obtained from the governor authorizing the marriage without publication.[1493] The details of the plan were changed in 1803. License is then to be obtained from the clerk of the court of common pleas for the county where the woman resides. Twice publication of banns, the first time ten days before the wedding; or notice by posting during fifteen days, is declared sufficient. In the case of minors a license may be issued only when consent of parent or guardian is personally given or certified to, attested by two witnesses, one of whom must personally appear and make oath or affirmation that he saw the parent or guardian subscribe or acknowledge the same.[1494] After 1824 provision for public posting is no longer made,[1495] thus reducing the Ohio plan to the more familiar system of optional civil license or ecclesiastical banns which still survives. License is now issued by the judge of probate in the county of the female; and the law governing the consent of parent or guardian in case of minors is identical with that of 1803, except that since 1810 persons under age who have before been married are not required to give evidence of such approval.[1496]
[Footnote 1493: CHASE, Stat. of Ohio and the N. W. Ter. (1833-35), I, 101.]
[Footnote 1494: Act of April 4, 1803; CHASE, Stat., I, 354, 355.]
[Footnote 1495: It is omitted in the act of Jan. 6, 1824: CHASE, STAT., II, 1407, 1408; nor does it appear in SWAN, Stat. (1854), 569 ff.]
[Footnote 1496: Ann. Rev. Stat. (1897), II, 3016. Cf. the act of Feb. 16, 1810: CHASE, Stat., I, 672, 673. See the act of April 25, 1898, requiring a statement under oath from persons applying for license; also evidence of parental consent in case of minors; and allowing the parent or guardian, when non-resident, to appear before a judge of a court of record in the county where he is domiciled, and give his consent in writing; such written consent must be attested by two witnesses, certified to by the judge, and be forwarded to the probate judge of the county where the license is to be issued: Laws (1898), 309-11.]
By the first matrimonial statute of Michigan in 1805 a license system is not established; but evidence of parental consent to the marriage of minors is to be presented to the minister or magistrate performing the ceremony. Within one hundred days the latter is to return a certificate of the celebration to a clerk of the court in the district where it takes place, who is required to keep a record and report annually to the clerk of the superior court of the territory.[1497] So the law remained until 1820, when the triple optional system, as it then existed in Ohio, was introduced;[1498] but this is not found in the existing law, which requires license in all cases according to the more common American usage.
[Footnote 1497: Laws of the Ter. of Mich. (1871-84), I, 30-32.]
[Footnote 1498: Ibid., I, 646-49.]
Neither banns nor license has at any time been required in New York during the century. Instead, as already pointed out, the person conducting the celebration is authorized to identify the parties by examining them or any other persons under oath.[1499] New Jersey has maintained a similar plan, except that non-residents are required to obtain a license from the county clerk five days before the wedding.[1500] At present in case of minors the powers and procedure of the person solemnizing are substantially the same as those of the county clerk or other officer where the license system prevails.[1501]
[Footnote 1499: Cf. Rev. Stat. of N. Y. (1827-28), 140: and ibid. (1889), IV, 2597.]
[Footnote 1500: Acts of N. J. (1897), 378.]
[Footnote 1501: See above, subsec. a) and cf. Laws of N. J. (1800), 158 (act of 1795) with Gen. Stat. (1896), II, 2005; Pub. Laws (1889), 139. The celebrant may administer an oath as to residence to either party; Acts (1900), 327, 328.]
Pennsylvania has also followed methods peculiar to herself. From 1730 to 1885 certificate of parental consent seems to have been required for the marriage of minors; and such certificate was presented directly to the person or society conducting the celebration. By an act of the last-named year there was introduced a license system which in 1893 was modified so as to permit a license to be obtained from the clerk of the orphans' court, not only in the county where the marriage is to take place but also in the county of the residence of either the man or the woman.[1502] The clerk is to keep a marriage-license docket, "in which he shall make a complete record of the issuing of said licenses, and all matters which he shall be required to ascertain, relative to the rights" of the persons to obtain a license, "together with their ages and residences." In getting a license the persons may proceed in one of two ways. "Either separately or together" they may apply directly to the clerk, who by oath or affirmation is authorized to inquire concerning the legality of the contemplated marriage, and if there be no legal objection, to issue the license; or in like manner, if they prefer, they may "appear before any magistrate, alderman, or justice of the peace of the township, ward or county, wherein either ... resides, and in the county where the license is desired, who may ... inquire of them touching the legality of the contemplated marriage." These answers and the replies, duly subscribed and sworn to before the officer, may be forwarded to the clerk of the court, who if satisfied therewith, and that no legal objection to the marriage exists, may issue the license. But if either of the persons intending to marry is under the age of twenty-one, the consent of parent or guardian, given personally or attested by witnesses in the usual way, is necessary. The license shall have appended to it two certificates, one marked "original" and the other "duplicate." The certificate marked "original" shall be given by the solemnizer to the persons married; and the other must within thirty days be returned to the clerk in the county of the celebration, to be filed of record. It is, however, especially provided that in all cases where the persons intend solemnizing their own marriage, the clerk in "the proper county shall certify their right so to do in a declaration in the following form": "Legal evidence having been furnished to me, in accordance with the act of assembly ... this certifies that I am satisfied that there is no legal impediment to your joining yourselves together in marriage." When self-gifta thus takes place, the persons contracting are required to make duplicate certificates of their own wedding celebration, returning one of them to the clerk, as in other cases provided by law.[1503]
[Footnote 1502: See in re Marriage License Act, 15 Pa. C. C., 345 (1894); and PEPPER AND LEWIS, Digest, II, 2881, note.]
[Footnote 1503: Laws (1885), 146; ibid. (1893), 27; ibid. (1887), 170; PEPPER AND LEWIS, Digest (1896), II, 2878-83.]
In the remaining nineteen states of this group not yet considered, except Alaska, the simple license system has been introduced. Save here and there in certain cases specially provided for, a license is always required. Thus, by the Minnesota law, "previous to persons being joined in marriage, a license shall be obtained from the clerk of the district court of the county in which the female resides," or, if she be not a resident of the state, then from the same officer "in the county where the marriage is to take place in the state;" but if there shall be no such clerk in either of the counties specified, no license is required. The clerk may inquire of the persons under oath as to the legality of the proposed marriage. If he "shall be satisfied that there is no legal impediment thereto," he shall grant a license and make a record thereof. Persons under age and not having had a former husband or wife must have the consent of the parents or guardians personally given or certified under their hands and seals, "attested by two witnesses, one of whom shall appear before said clerk, and make oath or affirmation that he saw said parent or guardian subscribe, or heard him or her acknowledge the same." If a "clerk shall in any other manner issue or sign any marriage license, he shall forfeit and pay a sum not exceeding one thousand dollars" to the persons aggrieved. The statute allows the clerk a fee of two dollars for each license issued.[1504]
[Footnote 1504: Gen. Stat. of Minn. (1894), I, 1264, 1265.
Following is the form of license or "certificate" in Colorado: "Know all men by this Certificate, that any regular ordained minister of the Gospel authorized by the rules and usages of the Church or denomination of Christians, Hebrews, or religious body of which he may be a member, or any judge or justice of the peace to whom this may come, he not knowing of any lawful impediment thereto, is hereby authorized and empowered to solemnize the rites of matrimony between .... of .... of the county of .... Previously married? .... Wife deceased? .... Divorced? .... When? .... Where? .... On what grounds? .... And .... of .... of the county of .... Previously married? .... Husband deceased? .... Divorced? .... When? .... Where? .... On what grounds? ...."--MILLS, Ann. Stat. of Col. (1891), III, 828.]
Similar powers and functions are exercised by the clerk of the district court in Iowa and Montana;[1505] the county clerk, in California, Colorado, Illinois, Michigan,[1506] Nevada, Oregon, Utah, Wisconsin, and Wyoming; the clerk of the circuit court, in Indiana and South Dakota; the probate judge, in Kansas and Ohio; the county judge, in Nebraska; the county auditor, in Washington; the county recorder, in Idaho; and by the judge of the county court, in North Dakota. The license is issued by such officer from the county of the woman's residence, in Indiana, Ohio, and Oregon; from the county where either the man or the woman resides, in Michigan; from the county where the marriage is to take place, in California, Idaho, Illinois, Iowa, Montana, Nebraska, North Dakota, South Dakota, and Wyoming; from the "proper" county, in Kansas; and from "any county," in Colorado; from "a county auditor" in Washington; the county where one or both of the persons dwell, or from any county when both are non-residents, in Nevada; from the county of the bride's residence, or, if she be a non-resident, from that of the proposed marriage, in Wisconsin and Minnesota; and in Utah, from the county where the female lives, provided that when she is a widow or of full age, and it is granted on her application, it may be issued from any county. In Kansas and Indiana a license is not required in the case of Friends marrying according to their own usage; and the same is true in Iowa, California, and South Dakota, for the members of "any particular denomination having, as such, any peculiar mode of entering the marriage relation." Wisconsin requires the license to be obtained not less than five days previous to the persons being joined in marriage; and has also provided for celebration without license in urgent cases. Upon the application of either party to a proposed marriage, any county judge, court of record, or presiding judge thereof, in his discretion, by order may authorize solemnization without license or the five days' notice. Such order must be delivered to the person performing the ceremony, who is to return it in place of or in connection with the license to the register of deeds or of vital statistics.[1507] Michigan has likewise made provision for cases of emergency where social expediency seems to require exceptional rules. By a law of 1897, amended in 1899, entitled "an act to provide for the protection of the reputation and good name of certain persons," the judge of probate in each county is authorized to issue without publicity a license to any female who has lived with a man as his wife, or who for any other reason expressed in her application, deemed sufficient by the magistrate, "desires to keep the exact date of the marriage a secret, to protect the good name of herself and the reputation of her family."[1508]
[Footnote 1505: Act of March 14, 1895: in Comp. Codes and Stat. (1895), 476.]
[Footnote 1506: In Michigan a girl under eighteen must bring written consent of parent or guardian before license will be issued: Pub. Acts (1895), 536, 537.]
[Footnote 1507: Act of April 29: Laws of Wis. (1899), 529-31; cf. the act of 1903: Laws, 477, 478.]
[Footnote 1508: The judge of probate must issue a license without publicity to a "female making application to him, under oath, containing a statement that she is with child, which if born alive before her marriage will become a bastard, or has lived with a man," etc. With consent of parent or guardian, such judge is empowered to marry persons under marriageable age, making such a statement, whenever he believes the marriage "would be a benefit to public morals." He is required to "file a complete set of all papers in each case in a private file, and shall within ten days after the marriage forward the duplicate thereof to the secretary of state, who shall file such duplicate in a private file and record the same in a private register." These private files of the probate judge and secretary of state "shall be open to inspection only upon the written order of the judge of any circuit or the supreme court of this state, and only for such use as is designated in such order. Such order shall be made only upon the written request of the person or persons who were so married, or when necessary to the protection of property rights arising from or affected by such marriage."--Pub. Acts of Mich. (1897), 230, 231; ibid. (1899), 363, 364.]
Generally throughout the region under discussion penalties by fine or imprisonment are prescribed for celebration without a license or for illegally issuing the same.
In every instance, except in Alaska, the person or society conducting the celebration is required to make a return to the officer authorized to receive it, either in the town or, usually, the county, where the license was issued, or in that of the marriage.[1509] Such return is made either by separate certificate, by indorsement on the license, or by certificate appended to it. Several states, however, have enacted special provisions. In South Dakota, for example, the marriage certificate must be "filed with the clerk of the city or town where the marriage was solemnized, or where either of the parties resides," or with the "register of deeds of such county." By the Colorado statute return is made to the clerk issuing the license; and the solemnizer must also send a report to the clerk of the county where the marriage takes place. In Iowa the person performing the ceremony is to make return to the clerk of the district court; and, "when the services of a clergyman or magistrate are dispensed with, the husband must make the return." California has enacted that "when unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman. A certificate of such marriage must be made and delivered by the clergyman to the parties, and recorded upon the records of the church of which the clergyman is a representative;" and "no other record need be made." Furthermore, when members of a religious society, having as such peculiar rites, are married without a license, as the law permits, they must join in a written declaration of the marriage, which shall be signed by themselves and attested by at least three witnesses. Within thirty days after the wedding this declaration must be filed by the husband with the county recorder, who, after it is duly acknowledged, shall record the same as in grants of real property.[1510] New York requires that the certificate, given to each of the married persons on request, signed by the officiating magistrate, shall be filed and recorded, if within six months it is presented to the clerk of the city or town where the marriage took place, or where either the bride or groom resided. When it is a clergyman who conducts the celebration, his certificate thereof may in the same manner be filed and recorded, "if there be endorsed thereon or annexed thereto, a certificate of any magistrate residing within the same county with such clerk, setting forth that the minister is personally known to such magistrate, and has acknowledged the execution of the certificate in his presence;" or that the execution was proved to the magistrate by the oath of a witness known to him.[1511]
[Footnote 1509: Return is made to the designated officer of the county (or town) where the license was issued, in Idaho (1899), Kansas, Michigan, Montana, Nebraska, Nevada (1899), and Utah; but where the marriage was solemnized, in California, Delaware, Illinois, Indiana, Minnesota, North Dakota, Washington, Wisconsin, Wyoming, and Iowa. The Pennsylvania act of 1893 requires the return to be made to the clerk of the orphans' court in the county where the marriage was solemnized; and this, doubtless, supersedes the law of 1885, which designates for this purpose the county from which license was issued, and which also appears in PEPPER AND LEWIS, Digest (1896), II, 2880, 2881, 2883. By the Ohio act of April 25, 1898, return is made to the probate judge of the county where the license was issued, or where the congregation in which publication of banns was made is located, or where the marriage was celebrated: Laws (1898), 309-11. Of course, the county of issue of license and the county of celebration are usually the same. In Oregon return is made both to the county clerk issuing the license and to the clerk of the county of the marriage: General Laws (1903), 99, 100.]
[Footnote 1510: Statutes of S. D. (1899), II, 1023; _Rev. Codes of S. D._ (1903), 598; MILLS, Ann. Stat. of Col. (1891), II, 1679; Code of Iowa (1897), 1124, 1125; _Amendments to the Civil Code of Cal._ (1873-74), 187; DEERING, Codes and Statutes (1886), II, 27, 28; Act of 1897: Amendments to the Civil Code, sec. 79-1/2, p. 186.]
[Footnote 1511: Rev. Stat. of N. Y. (1889), IV, 2598; the same in Rev. Stat. (1827-28), 140, 141.]
By the rules prevailing in every state, save New Jersey, the official receiving the return must register or file the same of record. The prescribed term within which the report of the celebration must be submitted is thirty days (or "one month") in California,[1512] Colorado, Idaho, Illinois, Kansas, Minnesota, Montana, Nevada, New Jersey,[1513] North Dakota, Ohio,[1514] Oregon, Pennsylvania,[1515] South Dakota, and Utah; ninety days (or "three months"), in Indiana, Iowa, Michigan, Nebraska, Washington, and Wyoming; and six months in New York. South Dakota, in addition to the return by the solemnizer, provides that within six months after the wedding the certificate given to the persons married may be "filed" in the manner above described; and, when thus filed, it must be entered in a book to be provided by the clerk or register for the purpose.[1516] By the Wisconsin law the license, with a certificate of the marriage, must be returned by the person conducting the celebration to the register of deeds of the county where the license was issued, provided that in cities of the first class the report shall be sent to the registrar of vital statistics, who is to place it on file.[1517] In Delaware the person solemnizing must keep a record and "annually, in March, deliver to the recorder of deeds for the county, a true extract therefrom" of all entries for the year preceding.[1518]
[Footnote 1512: In California the original license, with the certificate of solemnization indorsed and attached must be filed with the county recorder in thirty days: DEERING, Codes and Stat. (1886), II, secs. 73, 74, pp. 26, 27; but, in addition, the state registration law requires every person solemnizing marriages to keep a "registry," and "quarterly" to submit to the county clerk a certified copy of it: ibid., I, secs. 3074, 3077, pp. 460, 461.]
[Footnote 1513: So by the act of Feb. 15: Pub. Laws of N. J. (1888), 52 ff., as amended by that of March 29: Pub. Laws (1892), 351; both in Gen. Stat. (1896), II, 2011, 2012.]
[Footnote 1514: The period within which the certificate must be returned to the probate judge was formerly ninety days: Ann. Stat. of Ohio (1897), II, 3017; but by the act of April 25, 1898, it is fixed at thirty days: Laws (1898), 309-11.]
[Footnote 1515: By the act of March 1, 1893, amending that of June 23, 1885: PEPPER AND LEWIS, Digest (1896), II, 2880, 2881, 2883.]
[Footnote 1516: Stat. of S. D. (1899), II, 1021, 1023.]
[Footnote 1517: A period within which the return is to be made does not seem to be fixed: Act of April 29: Laws of Wis. (1899), 530.]
[Footnote 1518: Rev. Stat. of Del. (1893), 594; practically the same in ibid. (1874), 472-74.]
Only in Wisconsin is there any provision for return when the marriage of a resident takes place outside the state.
Provision for giving a certificate to the persons married, on request or otherwise, is made by Alaska, California, Idaho, Iowa, Michigan, Minnesota, Montana, Nebraska, Nevada, New York, Oregon, Pennsylvania, South Dakota, Washington, Wisconsin, and Wyoming. Creditable progress is also shown in a number of the states of this group in providing for a proper record of marriages, and for the collection, registration, and publication of social statistics. Thus in California, Delaware, Idaho, Iowa, Michigan, Nevada, New Jersey, New York, Ohio, South Dakota, and Wisconsin the person conducting the celebration is required to keep a record;[1519] and everywhere, save in one instance, as already seen, the clerk or other officer of the county or town must register the facts contained in the license issued or the certificate returned; and usually the original documents are filed for preservation.[1520] Moreover, a goodly number of commonwealths have wisely created systems of state registration which promise to be of great service in the future of American society. Beginning in 1881, Delaware has established such a system. The state board of health, composed of "seven physicians of skill," has general oversight, appointing one of its own number as secretary, who performs the duties of "superintendent of registration of vital statistics." To him the recorders of the several counties are required to send information.[1521] An elaborate registration act was adopted in New Jersey in 1888; and this, as amended in 1892, is still in force. Thirty days after the solemnization of any marriage a certificate thereof is to be sent to the proper officer, setting forth the "name, age, parentage, birthplace, occupation, and residence of each of the persons married, the time and place of the marriage, the condition of each of the persons married, whether single or widowed, the name of the minister, magistrate, or person by whom, or of the religious society before which the marriage was solemnized, and the names and residences of the witnesses." The certificate is to be returned to the "registrar of vital statistics," or, if there be none, the clerk of any city, borough, town, or other municipal government, or to the assessor or clerk of a township. These local officers are required each month to forward the certificates and the "special return" provided for by law to the state board of health, whose secretary is styled the "medical superintendent of vital statistics."[1522]
[Footnote 1519: The Pennsylvania act of 1849 requiring a transcript of the marriage record to be given to the person applying therefor, on payment of the prescribed fee, still appears to be in force: PEPPER AND LEWIS, Digest (1896), II, 2879.]
[Footnote 1520: Both Oregon and Washington allow the solemnizer to keep the license, the clerk or auditor first recording the facts contained therein: Codes and Stat. of Ore. (1902), II, 1684; Ann. Codes and Stat. of Wash. (1897), I, 1177, 1178.]
[Footnote 1521: See the act of April 7, 1881: Laws, XVI, chap. 381; act of March 13, 1879, amended and republished, April 11, 1893: Rev. Stat. (1893), 296-98, 405-8.]
[Footnote 1522: Act of Feb. 15: Pub. Laws of N. J. (1888), 52 ff.; act of March 29: ibid. (1892), 351; Gen. Stat. (1896), II, 2006-12, 1634, 1635 (board of health); act of Feb. 27, 1901: Acts of N. J., 36.]
Ohio has a similar plan of local and state administration. The mayor of each of the smaller cities and villages, and six persons nominated by the council, including two medical practitioners, constitute a board of health which is authorized to appoint a health officer and "create a complete and accurate system of registration of births, marriages, deaths, and interments, for the purpose of legal and genealogical investigations, and to furnish facts for statistical, scientific, and sanitary inquiries." The secretary of state is required each year to prepare and submit to the general assembly a full and accurate report of the statistics of Ohio.[1523] A system of state registration of births, marriages, deaths, and divorces has existed in Michigan since 1867. The secretary of state is required to furnish the clerks of the respective counties with suitable blank books for record and forms for reports. The reports of these local officials are to be properly bound and indexed under the direction of the secretary; "and with such assistance as may be voluntarily rendered by any authorized committee appointed by the medical faculty of the University of Michigan, or by any regularly authorized medical society ... , he shall prepare such tabular statements, results, and deductions therefrom as will render them of practical utility, and make report therof annually to the governor." But in reality this report, under the general direction of the secretary, is prepared and published by the secretary of the state board of health.[1524]
[Footnote 1523: The law does not apply to cities of the first class nor to those of the second class, Grades 1, 2, and 3_a_. Special provision is made for a board of health in Cincinnati (cities of the first grade of the first class): BATES, _Ann. Rev. Stat._ (1897), I, 97, 978, 979.]
[Footnote 1524: Cf. act of 1867: Pub. Acts (1867), 266; that of 1869: ibid. (1869), 214; ibid. (1899), 67, 68; and HOWELL, Gen. Stat., 1, 96, 276-80, 464; Comp. Laws (1899), II, 1451 ff.]
As early as 1852 Wisconsin made provision for registration of births, marriages, and deaths; and the plan then adopted, with some modification, still exists. By a statute of 1897 the register of vital statistics in every city having such an officer is required to keep a record of all marriages celebrated therein, in the same way as he does of births and deaths. To him the persons or societies conducting marriage celebrations are required to send certificates thereof; and every week these certificates must by him be forwarded to the register of deeds of the county or city. For the commonwealth the secretary of the state board of health, under the direction of the secretary of state, performs the same functions as discharged by that official in Michigan.[1525]
[Footnote 1525: Cf. Acts (1852), 763-69; Rev. Stat. (1858), 618-22; Ann. Stat. (1889), I, 648-52; Laws (1897), 373; _Wis. Stat._ (1898), I, 1055, 785 ff.]
Provision for similar registration, under authority of the state boards of health, is made by the laws of Indiana, Iowa, Kansas, Minnesota, and Pennsylvania. California has a similar statute. Careful provision is made for keeping registers of births by physicians and midwives; of deaths, by clergymen who officiate at funerals, coroners who hold inquests, sextons and undertakers who bury deceased persons; and by those who conduct marriage celebrations. Certified copies of all these registers are to be filed quarterly with the respective county recorders; and every three months these officials are required to transmit a "certified abstract" of their own registers to the secretary of the state board of health at Sacramento. This body consists of seven physicians appointed for four years by the governor; and at each biennial session of the legislature it is authorized to make a report, "with such suggestions as to legislative action" as it deems proper.[1526]
[Footnote 1526: DEERING, Codes and Stat. (1886), I, 442 ff., 460 ff.]
The New York law is very careful and elaborate. There are local boards of health in towns, incorporated villages, and cities. In the town the board consists of the clerk and the justices of the peace, together with a "citizen" appointed by them; in the incorporated villages, of from three to seven members nominated by the village trustees. The village and town boards each hold office for one year, and each is authorized to appoint a "competent physician" to serve as "health officer," who, in the case of the village, may not be a member of the board. The city board is composed of six members, at least one of whom shall be a physician, all appointed by the common council. The board thus constituted is authorized to choose a president and to select a competent physician as health officer. The six members hold office for one, two, and three years, respectively, by pairs. It is made the duty of each of these local boards "to supervise and make complete the registration of all births, marriages, and deaths occurring within the limits of its jurisdiction in accordance with the methods and forms prescribed by the state board of health, and to secure the prompt forwarding of the certificates of birth, marriage, and death to the state bureau of vital statistics after local registration." To attain completeness in such registration, "it shall be the duty of the parents or custodians of every child, and the groom at every marriage, or the clergyman or magistrate performing the ceremony, to secure the return of the record of such birth or marriage to the board of health or person designated by them within thirty days from the date" of the same, "and each record shall be duly attested by the physician or midwife (if any) in attendance at such birth, or the clergyman officiating at such marriage." If in any place the state board of health ascertains that the registration is "not completely and well made," it may notify the delinquent local board that within one month such "defects and neglects in the records must be amended and prevented." If the abuses are not remedied within the period named, the state board is required to take control of the records, and to "enforce the rules and regulations" so as to make them complete.
The bureau of vital statistics has general charge of the state system of registration, under direction of the state board of health. The latter body consists of three "state commissioners of health," appointed by the governor with the advice and consent of the senate, and six other members, three nominated by the governor, and three serving ex officio. It appoints a secretary who is "superintendent of registration of vital statistics;" and it makes an annual report to the governor regarding "vital statistics and the sanitary condition and prospects of the state."[1527]
[Footnote 1527: Cf. the act for registration of births, marriages, and deaths: Laws (1847), chap. 152, repealed by Laws (1885), chap. 270; Laws (1880), chap. 322; and _Rev. Stat._ (1889), II, 1205, 1207, 1209, 1195-98 (state board), IV, 2610, 2611 (clauses relating to New York city).
In general, to trace the history of the topics treated in this subsec. c), consult the last note in subsec. b).]
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Transcriber's note:
Minor typographical and punctuation errors have been corrected without note. Irregularities and inconsistencies in the text have been retained as printed.
Mismatched quotes are not fixed if it's not sufficiently clear where the missing quote should be placed.
In the Table of Contents: III. The Evils of the Spiritual Jurisdiction 351-359"--350 was changed to 351.
The cover for the eBook version of this book was created by the transcriber and is placed in the public domain.