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.]