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.]