Indiana, admitted to the Union in 1816, Illinois in 1818, Michigan

in 1837, and Wisconsin in 1848, were all included in the "Territory

northwest of the Ohio," and, so far as they had inhabitants, were

therefore originally affected by the laws and government established

under the ordinance of 1787. Gradually, as each portion became a

separate territory or an independent state, the early statutes,

already considered in connection with Ohio, were retained, modified,

or superseded. So far as the marriage celebration is concerned, the

course of history in Indiana and Illinois need not here be dwelt

upon. In the former commonwealth the ceremony may now be conducted

by all ministers of the gospel and priests of every denomination,

throughout the state; by judges of all courts of record, justices of

the peace, and mayors of cities, within their respective counties;

and by the Friends and German Baptists according to the rules of

those societies. But no marriage, legal in other respects, is deemed

void "on account of the incapacity of the person solemnizing the

same."[1419] The present law of Illinois shows several variations.

The ceremony may be performed either by a minister of the gospel

in regular standing with the church or society to which he belongs;

by a judge of any court of record; a justice of the peace; any

superintendent of a public institution for the education of the

deaf and dumb in the state; or, if either of the persons is a

member of the "religious society known as Friends or Quakers,

they may be lawfully married by making known their intention ...

to a standing committee of an official meeting, at least one week

before said marriage ... and by appearing in a public meeting or

private gathering, before official witnesses of said body, with a

certificate duly setting forth" their names and residences, with

those of the parents, if living. This certificate, duly signed by

the contracting persons and by the official witnesses, must be

publicly read by one of the witnesses, and afterward entered in the

records of an organized meeting of the society. In addition, the law

guarantees every religious society the use of its own rites.[1420]

[Footnote 1419: _Laws of the State of Ind._ (1897), 129 (act of

March 4, 1897).]

[Footnote 1420: Act of May 30: _Laws_ (1881), 112; retained in

HURD, _Rev. Stat._ (1898), 1068; _cf._ _Rev. Stat._ (1845), 343.]

By the first marriage law of Michigan Territory, adopted in 1805

from the statutes of Massachusetts, so "far as is necessary and

suitable to the circumstances," the wedding ceremony may be

performed by justices of the peace and regular ministers of the

gospel, when at least one of the persons marrying is an "inhabitant"

or "resident" of the district where such clergyman or magistrate

dwells; and there is the usual clause securing to all religious

societies their peculiar usage or customs.[1421] In 1820 the

contemporary law of Ohio was adopted, authorizing celebration, after

license, banns, or posting, by justices of the peace in their own

counties, or by ministers of the gospel in regular communion with

any society of Christians according to the forms of the church

to which they respectively belong.[1422] The same privilege is

expressly reserved to Quakers and Menonists in 1827;[1423] while

in 1832 "ordained ministers" in regular communion with their

societies, "but not otherwise," may perform the ceremony, provided

their credentials are first entered "of record" with the county

clerk.[1424] The present statute is in substance nearly the same,

except that the "ordained" minister, who "continues to preach the

gospel" in the state, is not required to file his credentials as

by the earlier acts. Non-resident clergymen are also authorized

to perform the ceremony in the state, provided a proper record be

kept and a return duly made according to law; but in all cases the

person conducting the celebration is commanded first to examine at

least one of the persons on oath as to the legality of the intended

contract.[1425]

[Footnote 1421: Act of Aug. 2, 1805: _Laws of the Ter. of Mich._

(1871-84), I, 30 (from the "Woodward Code"): repeated in the

"Cass Code" (1816): _ibid._, I, 202, 203.]

[Footnote 1422: Act of 1820: _Laws of the Ter._, I, 646, 647.]

[Footnote 1423: Act of April 12, 1827: _Laws of the Ter._, II,

412-14.]

[Footnote 1424: Act of May 31, 1832: _Laws of the Ter._, III,

914, 915.]

[Footnote 1425: Act of July 31: _Laws_ (1873), 20; also in

HOWELL, _Gen. Stat._ (1882), II, 1619, 1620. It is expressly

provided that marriage may be solemnized on Sunday: _ibid._,

I, sec. 2015; and in certain extreme cases the county judge of

probate may perform the ceremony: see the acts of 1897 and 1899,

referred to in subsec. _c_) below.]

Wisconsin, whose law on the subject has been but slightly altered

since 1839, authorizes solemnization by justices of the peace or

court commissioners in the counties where they are elected; and

throughout the state by any judge of a court of record, or by a

minister or priest in regular communion with any religious society,

so long as he continues to preach the gospel. Since 1851 Minnesota

has had a similar statute; except that court commissioners are not

mentioned, and instead the superintendent of the department for the

deaf and dumb in the Deaf, Dumb, and Blind Institute of the state

is given authority. In both Minnesota and Wisconsin Quakers, on

complying with the law as to return of certificate, are permitted

to use their own forms;[1426] a minister, before being empowered

to act, is required to file a copy of his credentials of ordination

with the clerk of the court in some county, and receive from him

a proper certificate thereof; and the magistrate or other person

performing the ceremony may in all cases examine at least one of the

parties on oath as to the legality of the intended marriage.[1427]

[Footnote 1426: But if the marriage among Quakers "does not

take place in such meeting, such certificate shall be signed by

the parties, and at least six witnesses present, and filed for

record" with the county clerk: _Gen. Stat. of Minn._ (1894), I,

1266; the same in _ibid._ (1866), 408; and nearly the same in

_ibid._ (1851), 271, 272.]

[Footnote 1427: The basis of the Wisconsin law of solemnization

may be found in the _Stat._ (1838-39), 139, 140, giving

authority to justices of the peace in their counties, to

judges and commissioners of the supreme court, and to ordained

ministers; and containing the provision regarding the filing of

credentials with the clerk of the district court. See also _Rev.

Stat._ (1849), 391-93, and _ibid._ (1858), 616-18; including

the same provisions regarding celebration as _Ann. Stat._

(1889), I, 1354-56, except that the present authority for court

commissioners in the counties is conferred by act of March 13,

1871: _Gen. Laws_, 99.

The Minnesota Law in _Rev. Stat. of the Ter._ (1851), 270-72, is

practically the same regarding the celebration as in _Gen. Stat.

of the State_ (1866), 406, except the provisions in the latter

regarding oath and credentials; and the law of 1866 is retained

in WENZELL AND LANE, _Gen. Stat._ (1894), I, 1264-66, except

that the provisions for solemnization by the superintendent of

the deaf and dumb appear in _Laws_ (1885), chap. 38, p. 47.

Licentiates are also required to take out a certificate: _Gen.

Laws_ (1901), 285.]

In the remaining fifteen western states, not yet considered, there

is relative uniformity regarding the law of celebration. Originating

even as organized territories in recent years, these commonwealths

have profited by the experience of the older communities whence

their people have mainly come, and so there has been less reason

for experimentation. The history of their marriage laws in general

is therefore less eventful. Everywhere the optional civil or

religious celebration is recognized. (1) In all cases justices of

the peace are authorized to conduct the solemnization. Occasionally,

as in Alaska, North Dakota, Oregon,[1428] Nevada, and Washington,

their power is expressly confined to their respective counties or

districts; elsewhere no such restriction appears. (2) Everywhere

without exception the judges or justices of the higher courts

of record are granted authority, although the particular courts

named vary considerably from state to state. Thus, in Colorado,

Kansas, Nebraska, and Wyoming the statute simply allows any "judge"

to perform the ceremony; while in North Dakota the same power is

bestowed upon every judge of a "court of record," and in Alaska and

Oregon, on any "judicial officer" within his proper jurisdiction.

It is granted to judges of the district courts, in their respective

districts, in Nevada; to judges of the supreme and district courts,

in Montana and Utah; to these same magistrates and to judges of

probate, in Idaho; to the justices of the supreme court and the

judges of superior courts, in California and Washington; to the

justices of the supreme court and the judges of the circuit or

county courts, in South Dakota; and to these same judges and to

those of the district courts, in Iowa. (3) Throughout these states,

in every instance, all ordained ministers, priests, or preachers

of the gospel, duly authorized by the usages of their respective

churches or societies, are allowed to celebrate matrimony; but there

is wide diversity in the phraseology of the statutes. Their power

is not limited to a particular place, but may be exercised anywhere

in the state. Only in one case among these fifteen states, Nevada,

is the clergyman required to exhibit his credentials and take out a

formal license. Sometimes, as in Kansas, Nevada, and North Dakota,

the Friends are expressly permitted to observe their own rites; or,

as in California, Iowa, Nebraska, Montana, Washington, and the two

Dakotas, there is a general clause in the law favoring all religious

societies having peculiar methods of celebration. City mayors are

allowed the same authority as magistrates and ministers in Iowa,

Montana, Idaho, Utah, and South Dakota. By the law of the last-named

state, as in New York, Indians are permitted to marry according

to their own forms; and in the West, during the earlier stage of

development, the governor has sometimes been granted authority to

join persons in wedlock, such being the case formerly in Nevada and

still in Idaho.

[Footnote 1428: The justice of the peace is not expressly given

authority by the Oregon law; but in effect he is authorized by

the general clause allowing "any judicial officer" to act within

his proper jurisdiction: _Codes and Stat._ (1902), II, 1682.]

California, like New York, South Dakota, Wisconsin, Minnesota, and

some other states, requires special precautions on the part of

the person performing the ceremony, tending to prevent illegal or

clandestine unions. He must first demand the "presentation of the

marriage license; and if he has any reason to doubt the correctness

of its statement of facts" as to identity of the persons, their

names, ages, and places of residence, or the consent of their

parents or guardians in case of minors, he must satisfy himself of

the same; and "for that purpose he may administer oaths and examine

the parties and witnesses in the like manner as the county clerk

does before issuing the license." Idaho has a similar law; and that

of Colorado allows the minister or magistrate, in case of minors

having no parents or guardian, to perform the ceremony or not,

according to his own judgment.[1429]

[Footnote 1429: DEERING, _Codes and Stat. of Cal._ (1886), II,

25, 26; _Rev. Stat. of Idaho_ (1887), 302; MILLS, _Ann. Stat. of

Col._ (1891), II, 1681.]

The statutes of many of the middle and western states require the

presence of witnesses at the celebration. One witness is sufficient

in South Dakota,[1430] as formerly in Dakota Territory; but two

witnesses must attend in Alaska, Michigan, Montana, Minnesota since

1851, Idaho since 1864, Nebraska since 1867, Nevada since 1861,

North Dakota since 1890, Oregon since 1854, Washington since 1866,

Wisconsin since 1849, and Wyoming since 1869. New York requires

one witness when the celebration takes place before a minister or

a magistrate, and two witnesses when the marriage is by a written

contract. The statutes sometimes contemplate the presence of

witnesses when in terms it is not prescribed. Such is the case,

for example, in New Jersey and California.[1431] In Pennsylvania

the provision of 1701 requiring the attendance of twelve witnesses

has not been expressly repealed; but, as already remarked, it is

construed by the courts as being merely "directory," and "it has

been ascertained that the requirement is no longer enforced. Two

witnesses must be present" in that state "when any marriage is

solemnized by the parties themselves."[1432]

[Footnote 1430: The solemnizer is required to ascertain the "name

and place of residence of the witness, or two witnesses, if more

than one is present": _Ann. Stat. of S. D._ (1899), II, 1022.]

[Footnote 1431: Witnesses are mentioned in the form of return

to be made by the solemnizer: _Gen. Stat. of N. J._ (1896), II,

2006: DEERING, _Codes and Stat. of Cal._, II, 26, 27.]

[Footnote 1432: WRIGHT, _Report_, 57.]

No definite formula for the celebration is anywhere prescribed.

Sometimes the statute contains a statement to that effect. Thus in

Alaska, California, Idaho, Michigan, Minnesota, Nebraska, Nevada,

North Dakota, South Dakota, Oregon, Pennsylvania, Washington,

Wisconsin, and Wyoming it is expressly provided that no particular

form for the ceremony is required, but the parties must solemnly

declare in the presence of the person officiating, and usually of

the attending witnesses, that they take each other as husband and

wife. The same is true of New York, if the ceremony is performed by

a magistrate; but when a clergyman officiates, it may be "according

to the forms and customs of the church or society to which he

belongs."[1433] In the case of Quakers or religious societies having

as such any peculiar mode of celebrating marriage, the law usually

provides, as already seen, that the ceremony or other mode of

joining in wedlock shall be in accordance with their customs; and

"where not so stated it is, of course, implied."[1434]

[Footnote 1433: On witnesses and the form of ceremony see

DEERING, _Codes and Stat. of Cal._ (1886), II, 26 (form); _Rev.

Stat. of Idaho_ (1887), 302; HOWELL, _Gen. Stat. of Mich._

(1882-90), II, 1619, 3602; _Gen. Stat. of Minn._ (1894), I, 1265;

_ibid._ (1866), 407; _Rev. Stat. of Minn._ (1851), 271; _Comp.

Codes and Stat. of Mont._ (1895), 477; _Comp. Stat. of Neb._

(1899), 757; _Comp. Laws of Nev._ (1900), 113; _Rev. Stat. of N.

Y._ (1889), IV, 2597; same in _ibid._ (1827-28), 139, 140; _Codes

and Gen. Laws of Ore._ (1892), II, 1319; same in _Gen. Laws_

(1862), 86: _Ann. Codes and Stat. of Wash._ (1897), I, 1175,

1176; _Rev. Stat. of Wyo._ (1899), 791; _Rev. Stat. of Wis._

(1849), 392; also in _Ann. Stat. of Wis._ (1889), I, 1355.]

[Footnote 1434: _Cf._ WRIGHT, _Report_, 56.]

The laws of Montana, South Dakota, and formerly those of Idaho

and California, contain a peculiar definition of matrimony and a

provision for contract by "declaration," which, taken together, in

effect allow persons to solemnize their own marriage, and to do

so clandestinely, if they see fit. So by the California statute,

as it stood from 1873 to 1895, marriage is defined as a "personal

relation arising out of a civil contract, to which the consent of

parties capable of making it is necessary. Consent alone will not

constitute marriage; it must be followed by a solemnization, or by

a mutual assumption of marital rights, duties, or obligations."

Furthermore, "consent to and subsequent consummation of marriage may

be manifested in any form, and may be proved under the same general

rules of evidence as facts in other cases." "Persons married without

the solemnization provided for" in the law "must jointly make a

declaration of marriage substantially showing: 1. The names, ages

and residences of the parties; 2. The fact of marriage; 3. That the

marriage has not been solemnized. If no record of the solemnization

of a marriage heretofore contracted be known to exist, the parties

may join in a written declaration ... , substantially showing: 1.

The names, ages, and residences of the parties; 2. The fact of

marriage; 3. That no record of such marriage is known to exist."

This declaration must be "subscribed by the parties and attested by

at least three witnesses." These provisions are essentially vicious;

and they gave rise to the so-called "contract" marriages, famous

in California judicial history, the most notorious case being that

of Sharon _v._ Sharon, which in its various phases was for years

before the state and federal courts.[1435] So great were the evils

of clandestine marriages, and the resulting conflicting and often

false claims to property or inheritance under this law, that in

1895 a tardy remedy was sought in legislation. Section 75 of the

code, as above quoted, allowing a declaration of marriage, was

repealed outright. The definition in sec. 55 was amended to read,

"Consent alone will not constitute marriage; it must be followed by

a solemnization authorized by this Code;" and for the future sec.

57, instead of its former dangerous terms, declares that "consent to

a marriage and solemnization thereof may be proved under the same

general rules of evidence as facts are proved in other cases."[1436]

[Footnote 1435: Sharon _v._ Sharon, 67 _Cal._ (1885), 185 ff.; 75

_Cal._ (1888), 1-78; 79 _Cal._ (1889), 633-703; 84 _Cal._ (1890),

424 ff. For other cases of "contract" marriages under the code of

1873, see Kelly _v._ Murphy, 70 _Cal._ (1887), 560; Kilburn _v._

Kilburn, 89 _Cal._ (1891), 46; People _v._ Beevers, 99 _Cal._

(1893), 286; Toon _v._ Huberty, 104 _Cal._ (1894), 260; People

_v._ Lehman, 104 _Cal._ (1894), 631; Hinckley _v._ Ayres, 105

_Cal._ (1895), 357. From 1849 to 1873 common-law marriages were

good in California: see Graham _v._ Bennett, 2 _Cal._ (1852),

503; Letters _v._ Cady, 10 _Cal._ (1858), 530; Case _v._ Case,

17 _Cal._ (1861), 598; People _v._ Anderson, 26 _Cal._ (1864),

130; estate of Charles Beverson, 47 _Cal._ (1874), 621; estate of

McCausland, 52 _Cal._ (1878), 568; _in re_ Briswalter, 72 _Cal._

(1887), 107; White _v._ White, 82 _Cal._ (1890), 427. The facts

in the four cases last mentioned arose before 1873.]

[Footnote 1436: DEERING, _Codes and Stat. of Cal._ (1886), II,

18, 19, 20, 27; amended by act of March 26, 1895: _Stat. and

Amendments to the Codes_ (1895), 121. Compare the present law of

South Dakota: _Ann. Stat._ (1899), II, 1018, 1022; _Rev. Codes

of S. D._ (1903), 596; and that of Montana: _Comp. Codes and

Stat._ (1895), 475, 477, 478, which in the definition declares

that consent "must be followed by a solemnization, or by a mutual

and public assumption of the marital relation." In the use of

the word "public" the present law of Montana differs from that

of California previous to 1895. Formerly the laws of Idaho and

California were identical; but now the provision for declaration

is omitted from those of Idaho, although the prescribed

celebration is not essential to a valid marriage. _Cf._ _Comp.

and Rev. Laws of Idaho_ (1875), 642, 645; _Rev. Stat._ (1887),

301.]

Fourteen states of the middle and western group have provided that

when a marriage has been solemnized by a person professing to be

authorized, but not authorized by law for that purpose, its validity

is "not affected by such lack of authority, if it is in other

respects valid and consummated with the belief of the parties, or

either of them, that they have been lawfully married."[1437] These

states are Idaho, Indiana, Michigan, Minnesota, Montana, New York,

Nebraska, North Dakota, Nevada, Oregon, Utah, Washington, Wisconsin,

and Wyoming. In all cases the person falsely representing himself to

have authority is made liable to severe penalties.[1438] California

requires that "marriage must be licensed, solemnized, authenticated,

and recorded;" but it is not invalidated by non-compliance with the

law "by other than the parties" themselves.[1439] Idaho, Montana,

and South Dakota have similar statutes, although the act of the

parties is not thus excepted.[1440] In Iowa "marriages solemnized,

with the consent of parties, in any other manner" than presented by

the statute, "are valid; but the parties thereto, and all persons

aiding or abetting them, shall forfeit to the school fund the sum

of fifty dollars each; but this shall not apply to the person

conducting the ceremony, if within ninety days thereafter he makes

the required return to the clerk of the district court."[1441] In

Indiana "no marriage shall be void or voidable for want of license

or other formality required by law, if either of the parties

thereto believed it to be legal marriage at the time."[1442] The

person solemnizing, in Colorado, is protected by the duly issued

license, if he has no personal knowledge of the incompetency of

the parties.[1443] In Ohio, "when the person who solemnized the

marriage had no license, it was held that it was to be inferred that

the parties openly and mutually consented to a contract of present

marriage;" and when they thereafter cohabited as husband and wife,

"this consent constituted a legal marriage, and the man having then

a wife living might properly be convicted of bigamy."[1444]

[Footnote 1437: Want of authority to solemnize does not avoid a

marriage: State _v._ Brecht, 41 _Minn._, 50, 54; 42 _N. W. Rep._,

602; Martin _v._ Ryan, 2 PINNEY, _Wis. Reports_, 24.]

[Footnote 1438: For unauthorized solemnization and the penalty

see _Rev. Stat. of Idaho_ (1887), 303, 761: a misdemeanor

punished by confinement in the county jail not exceeding six

months, or a fine of not more than $300, or both; _Laws of Ind._

(1897), 129 (March 4); _Rev. Stat._ (1896), I, sec. 2148: a

fine of $50 to $500, to which may be added imprisonment in the

county jail for from ten days to three months; HOWELL, _Gen.

Stat. of Mich._ (1883), II, 1620: a misdemeanor punishable by

imprisonment in the county jail of not more than one year, or

a fine of $50 to $500, or both; _Gen. Stat. of Minn._ (1894),

I, 1266: a misdemeanor, with not over one year's imprisonment,

or a fine of not exceeding $500, or both; _Comp. Codes and

Stat. of Mont._ (1895), 477; _Comp. Stat. of Neb._ (1899),

757: a misdemeanor, with not more than one year in jail, or a

fine not to exceed $500; _Comp. Laws of Nev._ (1900), 114: a

fine of not more than $500, or imprisonment till paid; _Codes

and Gen. Laws of Ore._ (1892), II, 1320-22; I, 967: not more

than one year in jail, or a fine of $100 to $500; and the same

penalty for illegal solemnization and for illegally issuing a

license by the clerk; _Rev. Stat. of Utah_ (1898), 331; _Laws_

(1888), 90: not exceeding three years in the state prison, and

the same penalty for false personation of parent or guardian,

or for forging a certificate of consent; _Ann. Code of Wash._

(1897), I, 1175, 1178; _Ann. Stat. of Wis._ (1889), I, 1356: not

exceeding one year in jail, or a fine of not more than $500, and

the same for illegal solemnization, making false certificate,

or for false personation; _Rev. Stat. of Wyo._ (1899), 791,

792: a misdemeanor, and the same penalty as in Wisconsin for

unauthorized solemnization, which is prescribed also for false

certificate or false record by the clerk; _Ann. Rev. Stat. of

Ohio_ (1897), II, 3017: imprisonment for six months, or a fine of

$500, or both; _Laws of N. D._ (1890), 278: a misdemeanor with

fine of $100 to $500 and costs, or imprisonment in the county

jail for from three months to one year.]

[Footnote 1439: _Amendments to the Civil Code_ (1895), chap. 68.]

[Footnote 1440: _Rev. Stat. of Idaho_ (1887), 302; _Comp. Codes

and Stat. of Mont._ (1895), 476; _Stat. of S. D._ (1899), II,

1020.]

[Footnote 1441: _Code of Iowa_ (1897), 1124; same in _ibid._

(1860), 428. _Cf. ibid._ (1851), secs. 1474, 1475. Thus the

common-law contract is good: see Blanchard _v._ Lambert, 43 _Ia.

Reports_, 228.]

[Footnote 1442: HORNER, _Rev. Stat. of Ind._ (1896), II, sec.

5330; BURNS, _Ann. Stat._ (1901), III, 705.]

[Footnote 1443: MILLS, _Ann. Stat. of Col._ (1891), II, 1680.

The _Gen. Laws of Col._ (1877), 613, show the exigencies of

pioneer life in the provision that "all marriages which have

been solemnized in this state, whether by any president or judge

of any mining district, elected under and acting by the laws

thereof," shall be valid. So in Oregon by an act of Jan. 17, 1854

(_Stat. of Ore._, 494), marriages contracted, with the consent of

the parties, "when their residence is remote from any person duly

authorized to solemnize such marriage, in any other manner than

is prescribed, shall be valid; Provided that no legal impediment

shall exist thereto; such contracts shall be made in writing duly

attested, and shall be recorded in the office of the recorder of

deeds of the proper county, within sixty days."]

[Footnote 1444: Carmichael _v._ State, 12 _Ohio Reports_, 553.]

_b_) _Forbidden degrees: void and voidable marriages._--Nineteen out

of the twenty-five middle and western states have each provided a

statutory definition of marriage.[1445] In Oregon, Indiana, and in

Washington since 1854, it is defined briefly as a civil contract; in

Alaska it is a civil contract which may be entered into by males of

twenty-one and females of eighteen years, if otherwise capable; in

Colorado and Kansas it is "considered in law" as a civil contract

to which the consent of the parties is essential; in Iowa[1446]

since 1851, Nebraska since 1855, and Wyoming since 1869, it is a

civil contract to which the consent of parties capable in law of

contracting is necessary; in Michigan, Minnesota since 1866, Nevada

since 1861, New York[1447] since 1828, and Wisconsin since 1849, "so

far as its validity in law is concerned," it is a civil contract

under the same conditions as in the last-named group of states. On

the other hand, several commonwealths have sanctioned a definition

which seems to imply the element of status in the marital relation.

Thus by the laws of Idaho, Montana, South Dakota, California, and

North Dakota, marriage is a personal relation, arising out of a

civil contract to which the consent of parties capable of making

it is necessary. In North Dakota, although marriage is a personal

relation so arising, it must be "entered into, maintained, annulled,

or dissolved" only as provided by law; and in California, since

the reform of 1895, consent must be followed by a solemnization

authorized by the code. Moreover, in South Dakota the consent to

a marriage "must be to one commencing instantly, and not to an

agreement to marry afterwards." The law of Ohio is similar;[1448]

and in Idaho and California neither party to a nuptial contract

is "bound by a promise made in ignorance of the other's want of

personal chastity, and either is released therefrom by unchaste

conduct" of the other, unless both participated therein.[1449]

[Footnote 1445: On the definition of marriage see Smith _v._

Smith, 17 _N. Y. Rep._, 76; and on marriage as a question of

status, Sewall _v._ Sewall, 122 _Mass._, 156; Watkins _v._

Watkins, 135 _Mass._, 84.]

[Footnote 1446: "Marriage is a civil contract, requiring the

consent of the parties capable of entering into other contracts,

except as herein otherwise noted."--_Code of Iowa_ (1897), 1123;

_cf. ibid._ (1851), sec. 1464; _ibid._ (1873), sec. 2186.]

In all the states of the group under review, except in Colorado,

New Jersey, and Pennsylvania, the age of consent to marriage is

fixed by the law, or it may be inferred from its provisions. For

males it is twenty-one in Alaska and Washington;[1450] eighteen

in California, Delaware,[1451] Idaho,[1452] Indiana, Michigan,

Minnesota, Montana, Nebraska, Nevada, New York, Ohio, Oregon, South

Dakota, Wisconsin, and Wyoming; seventeen in Illinois; sixteen in

Iowa,[1453] North Dakota,[1454] and Utah;[1455] and only fifteen in

Kansas. For females it is eighteen in Alaska, Washington, Idaho, and

New York; sixteen in Delaware, Indiana, Michigan, Montana, Nebraska,

Nevada, Ohio, and Wyoming; fifteen in California, Minnesota, Oregon,

South Dakota, and Wisconsin; fourteen in Illinois, Iowa, and Utah;

thirteen in North Dakota; and only twelve in Kansas.

[Footnote 1447: "Marriage, so far as its validity in law is

concerned, shall continue in this state a civil contract, to

which the consent of parties capable in law of contracting, shall

be essential."--_Rev. Stat. of N. Y._ (1827-28), II, 138; _cf.

ibid._ (1889), IV, 2595.]

[Footnote 1448: "Mutual promises to marry in the future,

though made by parties competent to contract, and followed by

cohabitation as husband and wife, is not, in itself, a valid

marriage."--Duncan _v._ Duncan, 10 _Ohio Reports_, 181.]

[Footnote 1449: _Rev. Stat. of Idaho_ (1887), 302; DEERING,

_Codes and Stat. of Cal._ (1886), II, sec. 62, p. 24: act of

March 30, 1874, _Amendments_ (1873-74), 185.]

[Footnote 1450: The _Ann. Codes and Stat. of Wash._ (1897), I,

1174, fixes the age when marriage may be contracted at twenty-one

for males and eighteen for females; but elsewhere provision is

made for written consent of parent or guardian before license may

be issued to persons below these ages respectively: _ibid._, I,

1177.]

[Footnote 1451: It is provided by the _Rev. Code of Del._ (1874),

chap. 75, sec. 1, "that a divorce may be granted in case the

parties were, when married, below the ages specified (eighteen

and sixteen), and did not voluntarily ratify the marriage after

arriving at those ages;" and this is retained in _Rev. Stat._

(1893), 596. _Cf._ WRIGHT, _Report_, 30.]

[Footnote 1452: From 1864 to the act of Feb. 7, 1889, in Idaho,

the ages of consent were respectively eighteen and sixteen for

males and females; but in the last-named year eighteen was fixed

as the age for both sexes: _Laws_ (1863-64), 613: _Gen. Laws_

(1889), 40.]

[Footnote 1453: Below the ages of sixteen and fourteen in Iowa

"marriage is a nullity or not, at the option of the minor, made

known at any time before he or she is six months older than said

ages."--WRIGHT, _Report_, 30; see _Code of Iowa_ (1897), 1123;

_ibid._ (1873), sec. 2186.]

[Footnote 1454: North Dakota shows a retrogression. By the _Rev.

Code_ (1895), 608, the ages of consent to marriage are sixteen

and thirteen: the same by the act of March 20, 1890: _Laws_,

276; which act had been superseded by that of March 9, 1891,

_Laws_, 228, 229, which is in turn repealed by the act of 1895.

Still earlier the laws of Dakota Territory had fixed the ages

at eighteen and fifteen respectively: _Code of Dakota_ (1883),

sec. 36, p. 743; at sixteen and fourteen on May 7, 1862: _Gen.

Laws_ (1862), 390; and at fourteen and thirteen in 1866: _Civil

Code_ (1865-66), 11. By this last act the marriage of a woman

under fourteen might be annulled, if contracted without consent

of parent or guardian, and not followed by cohabitation, nor

ratified after the girl attained that age.]

[Footnote 1455: Formerly the ages in Utah were fourteen and

twelve: _Laws_ (1888), 88-91; they were fixed at sixteen and

fourteen respectively for males and females by the act of March

11, 1897: _Laws_, 40.]

The age below which the consent of parent or guardian is required

for the marriage of a minor is prescribed in all cases, except in

Alaska, Kansas, New York, and Michigan.[1456] Such consent must

precede the granting of license; or, where the license system has

not been adopted, it must be made known by certificate or otherwise

to the person or society conducting the celebration before the

ceremony may be performed.[1457] In all cases, save the three named,

the age for males is twenty-one, except in Idaho, where it is

eighteen. For females it is eighteen in all these states, except in

Idaho, where it is sixteen; and in Pennsylvania and Wyoming, where

it is twenty-one. Formerly in Delaware indented servants could not

lawfully marry without the master's consent; and for so doing such

persons offending must "serve their respective masters or mistresses

six months after the time of their servitude by indentures or

engagements has expired; and if any person being free, shall marry

with a servant without such consent ... he or she ... shall pay to

the master or mistress of the servant, if a man, ten pounds, and

if a woman, five pounds; and the servant so married shall abide

with the master or mistress according to indenture or engagement

six months as aforesaid."[1458] Later the penalty for a free person

marrying a servant, if a man, was fixed at thirty dollars, of if a

woman, at fifteen.[1459]

[Footnote 1456: Solemnization against law as to age and parental

consent does not invalidate: Parton _v._ Hervey, 1 _Gray_, 119,

122; Holtz _v._ Dick, 42 _Ohio Reports_, 791. In Kansas, 1859-67,

the ages were twenty-one for males and eighteen for females:

WEBB, _Gen. Stat._ (1897), II, 939, note.]

[Footnote 1457: In Oregon a license may be issued for the

marriage of a minor without such consent, when there is no parent

or guardian resident in the state, if the female has lived in the

county where the license is applied for during six months: _Codes

and Gen. Laws_ (1892), II, 1321; _Codes and Stat._ (1902), II,

1684.]

[Footnote 1458: _Laws_ (1797), II, 974.]

[Footnote 1459: _Rev. Stat. of Del._ (1853), as amended (1893),

594. This provision is now obsolete, though retained in the

statutes.]

All the states under consideration have legislated concerning

forbidden degrees of consanguinity. Relations in the direct line,

with brothers and sisters, are, as elsewhere, always included;

although many of the newer states and some of the older, have

not thought it necessary to continue the solemn farce derived

from ancient ecclesiastical usage of specifically interdicting

wedlock with a grandparent or with a grandchild; and sometimes the

connections by affinity are not mentioned, or, as in Wyoming,

they are expressly exempted from the inhibitions. Frequently,

however, a man is denied the privilege of taking his step-mother

or his mother-in-law to wife,[1460] and in every state of the

group, expressly or by implication,[1461] marriage between aunts

and nephews, or uncles and nieces, is forbidden. Minnesota since

1851, and Wisconsin since 1839, prohibit marriage between persons

nearer of kin than first cousins, computing by the rules of the

civil law; and in effect the same is true of Utah.[1462] On the

other hand, the statutes of Indiana, Ohio, Nevada, and Washington

are more severe, allowing marriage only between persons "not nearer

of kin than second cousins;" first cousins are likewise prohibited

from intermarrying in Illinois, Kansas, Wyoming, the two Dakotas,

Michigan, Pennsylvania, Oregon, and, apparently in Colorado;[1463]

while in Alaska marriages are prohibited within the fourth degree

of the whole or the half-blood. But in no instance is a union

between a sister-in-law or a brother-in-law interdicted. In all

cases marriages within the prohibited degrees are both incestuous

and void, except in Delaware, Minnesota, Oregon, Pennsylvania,

Indiana, and South Dakota, where they are only void; in New Jersey,

where they are only voidable;[1464] in Washington, where they are

only incestuous; and in Ohio, where they are not expressly declared

to be either incestuous or void. However, in the three states

last named such unions are forbidden and punished; and in general

for violation of the law by the persons contracting or the person

solemnizing marriages declared void or voidable severe penalties are

often imposed.[1465] By exception, in Colorado, it is provided that

nothing in the law regarding degrees "shall be so construed as to

prevent the people living in that portion of the state acquired from

Mexico from marrying according to the customs of that country."[1466]

[Footnote 1460: A marriage with a step-parent or parent-in-law

is forbidden in Delaware, Iowa, Michigan, New Jersey, and

Washington; apparently also in Pennsylvania. In the latter state

marriages within the degrees of affinity, forbidden by the act of

March 31, _Laws_ (1860), 394, were legalized by the act of April

6, 1868; _Laws of the Gen. Assem._, 67; or the same in PEPPER AND

LEWIS, _Digest_ (1896), II, 2884.]

[Footnote 1461: Of course, such unions are included where

marriage is expressly prohibited between persons nearer of kin

than first or second cousins by the rules of the civil law.]

[Footnote 1462: In Utah marriage is forbidden within, but not

including, the fourth degree of collateral kinship according to

the rules of the civil law. Originally Iowa had the same rule as

Minnesota: _Code of Iowa_ (1843), 434.]

[Footnote 1463: First cousins are prohibited by act of March 10:

_Session Laws of Col._ (1864), 108; the prohibition is retained

in _Gen. Laws_ (1877), 612; but omitted in _Gen. Stat._ (1883),

690, the change being made in _Session Laws_ (1883), 243. But

MILLS, _Ann. Stat._ (1891), sec. 1320, p. 931, declares the

marriage of first cousins incestuous and void. See _Laws of Pa._

(1901), 597, for prohibition of marriage of first cousins; _Laws

of Ore._ (1893), 41; _Codes and Stat. of Ore._ (1902), II, 1681.]

[Footnote 1464: Such marriages are voidable in New Jersey, "and

until dissolved by a court of competent jurisdiction must in

all collateral proceedings, be treated as valid."--_Gen. Stat._

(1896), II, 2003. _Cf._ Boylan _v._ De Inzer, 18 STEWART, _N. J.

Equity Reports_, 485.]

[Footnote 1465: For example, in Colorado, knowingly contracting

or solemnizing such a marriage is a misdemeanor subject to a fine

of $50 to $500, or imprisonment from three months to two years,

or both: MILLS, _Ann. Stat._ (1891), II, 1678; in Illinois incest

is punished by imprisonment for not more than ten years, or

twenty if the crime is that of father with daughter: HURD, _Rev.

Stat._ (1898), 577; in Kansas, for contracting, solemnizing, or

licensing a marriage within the forbidden degrees the offender

is liable to a fine of from $100 to $1,000, or imprisonment for

from three months to five years, or both: WEBB, _Gen. Stat._

(1897), II, 637; but elsewhere the law makes an incestuous

marriage punishable by confinement and hard labor not exceeding

seven years: _ibid._, II, 301; in Ohio, persons nearer of kin

than cousins committing fornication or adultery are liable to

imprisonment for from one to seven years: BATES, _Ann. Stat._

(1897), III, 3220; in Utah, solemnizing a marriage within the

forbidden degrees is punished by not exceeding three years in

the penitentiary, or a fine of not more than $1,000, or both:

_Rev. Stat._ (1898), 331; by _Laws_ (1888), 91; in Washington the

penalty for contracting is imprisonment in the penitentiary for

from one to ten years: _Ann. Codes and Stat._ (1897), I, 1175;

in North Dakota it is a misdemeanor, with imprisonment not more

than six months, or a fine of not more than $500: _Laws_ (1890),

276; but for incest the penalty is one to ten years in the

penitentiary: _Rev. Codes_ (1895), 1273; in Delaware, a fine of

$100: _Rev. Stat._ (1893), 593.]

[Footnote 1466: MILLS, _Ann. Stat. of Col._ (1891), II, 1678. On

the Spanish laws and their effect see Smith _v._ Smith, 1 _Texas

Reports_, 621; 46 _Am. Decis._, 121, note, 130-34.]

In these states the grounds for prohibiting wedlock other than

kinship or affinity are as varied, confusing, and contradictory as

in New England or the southern group. For the same cause a contract

declared void in one state may be voidable or merely forbidden and

punished in another. The statutes disclose a great diversity of

conditional or qualifying clauses which render it almost hopeless

to make any trustworthy generalizations. Thus bigamous marriages

are void or voidable by judicial decree in California, Delaware,

Idaho, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana,

Nebraska, Nevada, New Jersey, New York, North Dakota, Oregon,

Pennsylvania,[1467] South Dakota, Utah, Wisconsin, and Wyoming;

while in Colorado,[1468] Illinois, Ohio, and Washington they are

prohibited and made punishable. In Michigan, Minnesota, Nevada, and

Wisconsin the law applies only when the marriage was solemnized in

the state; while in California, Idaho, Minnesota, North Dakota, New

York, and South Dakota such unions are void or voidable unless, as

expressed in the California statute, "the former husband or wife

was absent, and not known to such person to be living for the space

of five successive years immediately preceding such subsequent

marriage, or was generally reputed or believed by such person to

be dead" when the second marriage was contracted; "in either of

which cases the subsequent marriage is valid until its nullity is

adjudged by a competent tribunal."[1469] Illinois and Ohio have each

a similar provision.[1470]

[Footnote 1467: Sec. 11 of the _Digest of the Laws of Pa._ (1883)

provides that "in all cases where a supposed or alleged marriage

shall have been contracted which is absolutely void by reason of

one of the parties thereto having a husband or wife living at the

time, the court of common pleas shall have power to decree the

said supposed or alleged marriage to be null and void upon the

application of the innocent or injured party;" and this provision

is still in force: PEPPER AND LEWIS, _Digest_ (1896), I, 1634.

Now, as in 1785, a bigamous marriage is a ground of divorce:

_ibid._, I, 1633. MYERS, _Rev. Stat. of Ill._ (1895), 545,

provides that "no divorce shall in any wise affect the legitimacy

of children, except where the marriage shall be declared void

on the ground of a prior marriage;" and Colorado has the same

provision: MILLS, _Ann. Stat._ (1891), I, 1035.]

[Footnote 1468: A bigamous marriage is ground for divorce in

Colorado: MILLS, _Ann. Stat._, III, 4341.]

[Footnote 1469: See _Amendments to the Civil Code of Cal._

(1897), sec. 61. _Cf._ secs. 82-84 of DEERING, _Codes and Stat._

(1886), II, 22, 28, 30. In New York the same exception is made

when either spouse has been "finally sentenced to imprisonment

for life": _Rev. Stat._ (1827-28), 139; _ibid._ (1889), IV, 2596.]

[Footnote 1470: BATES, _Ann. Rev. Stat. of Ohio_ (1897), III,

3220; MYERS, _Rev. Stat. of Ill._ (1895), 445.]

On the abrogation of polygamy, Utah had a problem to solve

analogous to that of the southern states after the enfranchisement

of the negroes. By an act of March 9, 1896, rights of inheritance

were secured to the issue of bigamous and polygamous marriages;

and a few days later, by general enactment, the children of such

unions "heretofore contracted between members of the Church of Jesus

Christ of Latter-day Saints, born on or prior to the fourth day of

January," 1896, were legitimated.[1471]

[Footnote 1471: _Laws_ (1896), 128, 129, 271, 272.]

The laws of California, Idaho, Michigan, Minnesota, Nebraska, North

Dakota, Oregon, South Dakota, Utah, Washington, Wisconsin, and

Wyoming render a marriage void or voidable when entered into by

either person through force or fraud;[1472] those of New York,[1473]

when force, fraud, or duress has been practiced; and those of

Nevada, when fraud has been proved.[1474] In Colorado the marriage

of a female obtained by force or fraud is prohibited and punished;

in Iowa, Kansas, Montana, and Nevada, when obtained by force,

menace, or duress; in Illinois, Montana, and New York, when the

marriage of either person has been gained through false persuasion;

while New Jersey, in more general phrase, treats as void the

marriage of a female "against her will."

[Footnote 1472: In Pennsylvania force or fraud in the marriage is

a ground for divorce: PEPPER AND LEWIS, _Digest_ (1896), I, 1635;

_ibid._ (1902), II, 1830.]

[Footnote 1473: STOVER, _Code of Civil Proced._ (1892), II, 1627.]

[Footnote 1474: In Idaho, Michigan, Minnesota, Nebraska, New

York, Oregon, Utah, Wisconsin, and Wyoming these marriages

are not voidable when there has been subsequent voluntary

cohabitation; in New York, Oregon, and Washington they are

voidable only at the suit of the injured party; and in New York,

only on a decree rendered during the lifetime of the parties.]

Marriages are also void or, usually, voidable when either person

was of unsound mind, as in California, Idaho, or South Dakota; or

insane or an idiot, as in Illinois, Indiana, Iowa, Kansas, Michigan,

Nebraska, Utah, Wisconsin, and Wyoming;[1475] or wanting in age

or understanding, as in Indiana, Kansas, Minnesota, Nevada, New

Jersey, New York, Oregon, Washington, and Wisconsin;[1476] or

physically incompetent, as in California, Idaho, Iowa, Kansas,

Montana, Nebraska, New Jersey, New York, Wyoming, and the two

Dakotas;[1477] or below age of legal consent, as in all the

last-named states, and also in Michigan, Nevada, Ohio, Utah,

Wisconsin, and Wyoming.[1478]

[Footnote 1475: In Idaho a marriage is voidable for unsound

mind, unless after the removal of the disability the parties

freely cohabited; but in Iowa, when either party was impotent,

insane, or an idiot, a marriage is not declared void by the

statute, but provision is made for its annulment: MCLAIN, _Ann.

Code_ (1888), I, 897. By the law of Michigan, such a marriage is

voidable, if solemnized in the state; but there, as also in New

York, Nebraska, and Wyoming, in case of lunacy, a marriage is not

voidable when the parties have freely cohabited after the lunatic

recovered.]

[Footnote 1476: By the Indiana law such voidable marriages shall

be declared void on application of the incapable party, and the

children thereof shall be legitimate. The same is true in Kansas,

but there cohabitation after incapacity ceases is a sufficient

defense to the action for annulment. The law of Minnesota is

similar. In Nevada and Nebraska a marriage is "not voidable for

want of age, if after attaining the age of consent the parties

for any time freely cohabited; nor for want of understanding,

if after restoration to reason" they so cohabited. According

to the New York statute a marriage is "not voidable on account

of want of age at suit of the party who was of age of consent;

nor where it appears that the parties after attaining such age

freely cohabited; nor of a female under sixteen years of age if

she had parental consent to the marriage," or when she ratified

it after reaching that age. The law of Oregon is practically the

same. In Michigan and Wyoming a marriage of persons below the

age of consent is void if they separate during nonage and do not

afterward cohabit.]

[Footnote 1477: In Nebraska, New York, and Wyoming an action

for annulment on the ground of impotence must be brought in two

years; while for this cause in Colorado, Indiana, Illinois,

Oregon, and some other states a "divorce" will be granted.

Physical incapacity is cause for divorce in Michigan; and suit

to "annul" a marriage on this ground must be brought within two

years: MILLER, _Comp. Laws_ (1899), III, 2664.]

[Footnote 1478: By the Ohio law marriages "contracted by male

persons under the age of eighteen and females under the age

of fourteen [now sixteen] are invalid, unless confirmed by

cohabitation after arriving at those ages respectively; and

such marriage, not so confirmed, does not subject a person to

punishment for bigamy for contracting a subsequent marriage while

the first husband or wife is living": see Shafher _v._ State, 20

_Ohio Reports_, 1.]

Several states of this group, like those of the South, have

attempted to check miscegenation by statute. Marriages between

white persons and negroes or mulattoes are thus declared illegal

and void in California,[1479] Colorado, Delaware, and Idaho; and

with negroes or Mongolians in Utah. The prohibition of such unions

in Nebraska extends to persons having one-fourth, and in Indiana to

those having one-eighth, negro blood; while in Oregon since 1866 it

has been applied to those with one-half Indian or one-fourth negro

or Chinese blood in their veins.[1480] In Nevada similar unions,

without specification of the degree of dark blood, are forbidden and

punished. On the contrary, Michigan, by an act of 1883, provides

that "all marriages heretofore contracted between white persons

and those wholly or in part of African descent are ... valid and

effectual in law for all purposes, and the issue" shall be deemed

legitimate.[1481]

[Footnote 1479: California does not directly prohibit the

intermarriage of whites and Chinese; but the county clerk is

commanded not to "issue a license authorizing the marriage of

a white person with a negro, mulatto, or Mongolian": DEERING,

_Codes and Stat._ (1886), II, 25, sec. 69.]

[Footnote 1480: Until _Laws of Ore._ (1893), 41, "Kanaka" blood

was included in the prohibition. _Cf._ _Codes and Stat._ (1902),

II, 1681, 1682; I, 274.]

[Footnote 1481: _Laws_ (1883), 16; also in HOWELL, _Gen. Stat._

(1883), II, 1619; and retained in the act of June 15: _Pub. Acts_

(1899), 387.]

Among the commonwealths of this group Delaware alone has the honor

of trying through legislation to put some limit upon the increase of

the indigent and incapable classes, the marriage of paupers being

forbidden under penalty. Michigan has taken a still more important

step in advance, setting a worthy example of social legislation

which ought to be followed throughout the country. By a stringent

law of 1899, it is declared that no person afflicted with certain

syphilitic diseases "shall be capable of contracting marriage." For

so doing the transgressor shall be "deemed guilty of felony and upon

conviction thereof ... , shall be punished by a fine of not less

than five hundred dollars or more than one thousand dollars, or by

imprisonment in the state's prison ... not more than five years, or

by both such fine and imprisonment in the discretion of the court."

Furthermore, it is especially provided that either husband or wife

may be examined as a witness; and in all cases arising under the

act a physician who has attended or prescribed for any person so

affected "shall be compelled to testify to any facts found by him

from such attendance."[1482]

[Footnote 1482: _Pub. Acts of Mich._ (1899), 387, 388 (June 15).

The law applies to "syphilis and gonorrhœa."]

An enlightened policy in a parallel direction is revealed by a

recent law of Minnesota, similar to that of Connecticut, prohibiting

the marriage of persons either of whom is epileptic, imbecile,

feeble-minded, or afflicted with insanity, when the woman is under

forty-five years of age;[1483] and Kansas has just enacted the same

restraint.[1484] On the other hand, in no instance, apparently, has

any effort yet been made to prevent the clandestine marriage outside

the state of residents who thus seek to evade the requirements of

their own laws.[1485]

[Footnote 1483: "No woman under the age of forty-five (45) years

or man of any age, except he marry a woman over the age of

forty-five (45) years, either of whom is epileptic, imbecile,

feeble minded, or afflicted with insanity, shall hereafter

intermarry, or marry any other person within this state."--_Gen.

Laws of Minn._ (1901), 334, 335.]

[Footnote 1484: _Session Laws of Kan._ (1903), 373, 374.]

[Footnote 1485: Except that in Delaware, if the parties to

any marriage prohibited for consanguinity or affinity, or for

miscegenation, "although the same may have been solemnized in

another state, shall cohabit as husband and wife in this state,

they shall each be deemed guilty of a misdemeanor and upon

conviction thereof shall be fined $100."--_Rev. Stat._ (1893),

593.]

Very generally, as elsewhere, indirect encouragement to matrimony

is given by the suspension of prosecution or penalty, and through

the legitimation of children. By the laws of Dakota and California,

"every contract in restraint of the marriage of any person, other

than a minor, is void;"[1486] and the same is true in the latter

state regarding conditions of ownership imposing like restraints;

but this rule "does not affect limitations when the intent was not

to forbid marriage, but only to give the use until marriage."[1487]

In many cases it is provided that marriages contracted out of the

state are valid, if valid where they are formed; but Pennsylvania

is the only commonwealth in the Union, except Georgia, directly

promoting wedlock, her statute declaring that "all marriages not

forbidden by the law of God shall be encouraged."[1488]

[Footnote 1486: DEERING, _Codes and Statutes_ (1886), II, sec.

1676, p. 311.]

[Footnote 1487: _Ibid._, sec. 710, p. 171; according to the

amendment of March 30, 1874: _Amendments to Codes_ (1873-74),

218. This provision "leaves no doubt but that the limitation of

an estate to a widow so long as she remains unmarried is good;"

and the "rules which govern a devise in restraint of a widow's

marriage, apply to like devise in restraint of a widower's

marriage: Bostwick _v._ Blades, 4 _Am. Law Rec._, 729 (Md. Ct. of

App.)." See EDITOR DEERING'S valuable note in _Codes and Stat._,

II, 171, where cases are cited.]

[Footnote 1488: The history of the various topics treated in this

section _b_) for the several states may be traced as follows:

(1) California: _Stat._ (1850), 424, 425; _Comp. Laws_ (1853),

175-77; _Acts Amendatory of the Codes_ (1873-74), 181 ff.;

_Stat._ (1880), 121 ff.; DEERING, _Codes and Stat._ (1886), II,

18-37; _Amendments to Codes_ (1895), 121; (2) Colorado: _Sess.

Laws_ (1861), 313; _ibid._ (1864), 108 ff.; _Gen. Laws_ (1887),

611-13; _Gen. Stat._ (1883), 690-94; MILLS, _Ann. Stat._ (1891),

II, 1675 ff.; (3) Delaware: _Rev. Stat._ (1893), 593, 594; (4)

Idaho: _Laws_ (1863-64), 613 ff.; _ibid._ (1864), 397; _ibid._

(1867), 71-73; _Comp. and Rev. Laws_ (1875), 642-45; _Gen. Laws_

(1889), 40, 278-80; _Rev. Stat._ (1887), 301-3; (5) Illinois:

HURD, _Rev. Stat._ (1898), 630, 577, 1067-69; (6) Indiana:

_Laws of the State_ (1897), 129; _Indiana Stat._ (1896), II,

secs. 5324 ff.; (7) Iowa: _Code_ (1860), 747; _ibid._ (1873),

628; _ibid._ (1897), 1123-25, 1940; (8) Kansas: _Stat._ (1855),

488, 489; _Laws_ (1857-58), 326; _Gen. Laws_ (1859), 563, 564;

_Laws_ (1870), 157, 158; WEBB, _Gen. Stat._ (1897), II, 637 ff.,

301, 339; (9) Michigan: _Laws of the Ter._ (1871-84), I, 30-32,

202, 203, 646-49; II, 412-14; III, 1191, 1192; HOWELL, _Gen.

Stat._ (1882-90), II, 1618-20; _Comp. Laws of Mich._ (1899),

III, 2645-52; (10) Minnesota: _Rev. Stat._ (1851), 270-72; _Gen.

Stat._ (1866), 406-8; WENZELL AND LANE, _Gen. Stat._ (1894), I,

1264-66; (11) Montana: _Comp. Codes and Stat._ (1895), 474-78;

(12) Nebraska: _Laws_ (1855), 209-11; _ibid._ (1856), 150-52;

_Stat._ (1867), 254-57; _Comp. Stat._ (1899), 756-58; (13)

Nevada: _Laws_ (1861), 93-96; _ibid._ (1867), 88, 89; _ibid._

(1881), 107, 108; _Comp. Laws_ (1900), 112-15; (14) New Jersey:

_Laws of the State_ (1800), 158-60; _Gen. Stat._ (1896), II,

2003-6; I, 1064, 1066; (15) New York: _Rev. Stat._ (1829), II,

138-41; _ibid._ (1889), IV, 2596-98; STOVER, _Code of Civil

Proced._ (1892), II, 1627, 1632 ff.; _ibid._ (1902), II, 1830-35;

(16) North Dakota: _Laws_ (1890), 276-79; _ibid._ (1891), 228,

229; _Rev. Codes_ (1895), 608-11; _Revised Codes_ (1899), 692-95,

1440, 1441, 1454, 1455; (17) Ohio: CHASE, _Stat. of Ohio and

N. W. Ter._ (1833-35), I, 101, 102, 126, 354, 355, 672, 673;

II, 1407, 1408; BATES, _Ann. Stat._ (1897), II, 3015-18, 2211;

III, 3220; (18) Oregon: _Laws_ (1843-49), 36, 80, 81; _Stat._

(1853-54), 492-94; _Code of Civil Proced. and Other Gen. Laws_

(1862), 85-88; _Codes and Gen. Laws_ (1892), II, 1317 ff.; I,

967; Act of Oct. 24, 1866: _Acts and Res._ (1866), 10, 11; (19)

Pennsylvania: PEPPER AND LEWIS, _Digest_ (1896), II, 2878-83;

(20) South Dakota: _Stat._ (1899), II, 1018-25, 1917; _Rev.

Codes_ (1903), 596-99; (21) Utah: _Laws_ (1888), 88-91; _Rev.

Stat._ (1898), 329-31; (22) Washington: _Stat. of the Ter._

(1854), 404, 405; _ibid._ (1865-66), 80-85; _Ann. Codes and

Stat._ (1897), I, 1174-78; II, 1952; (23) Wisconsin: _Stat. of

the Ter._ (1838-39), 139, 140; _Rev. Stat._ (1849), 391-93; _Ann.

Stat._ (1889), I, 1354-56; _Wis. Stat._ (1898), I, 1692-94; (24)

Wyoming: _Rev. Laws_ (1870), 458-61; _Rev. Stat._ (1887), 415-17;

_ibid._ (1899), 790-92, 1213; (25) Alaska: _U. S. Statutes at

Large_, XXXI, 494, 495. Laws since 1899 are cited in the previous

footnotes.]

_c_) _Certificate and record._--The laws of the middle and western

states have reached substantial harmony regarding the preliminaries

of marriage. The provisions for license and the other leading

features of matrimonial administration in their main features are

much the same, except in a few of the older commonwealths, where

the system of ecclesiastical banns and some other peculiar usages

are still maintained. Thus in Delaware, by the act of 1790, no

minister is allowed to conduct the ceremony without first receiving

a license authorizing the persons to wed, or, instead, unless the

banns shall "be published between such persons intending to marry,

at some church, chapel, meetinghouse, or stationary place of public

religious worship belonging to the district, or of the congregation

wherein the woman so intending to be married shall be resident,

or in the next adjacent congregation of the same society, on the

two several Sundays before the celebration thereof, immediately

after divine service." The license is granted by the president or

commander-in-chief duly attested under his sign manual; and it is

issued from the office of the secretary of state. "In order to avoid

fraud and collusion in obtaining such license," the person applying

is required to enter into bond with good security in such sum as

the president shall judge proper.[1489] All marriage licenses are

to be lodged with the prothonotaries and justices of the peace of

the respective counties, or with such of them as the secretary may

think fit for convenience of the people, and these officers are

required to submit a report every six months.[1490] After a century

the system thus outlined is still maintained in its essential

features. License or banns, "published at some place of stated

religious worship, within the hundred of the woman's residence, on

two Sabbaths immediately after divine service," is yet sanctioned.

The requirement of bond is still retained.[1491] It is the duty of

the clerk of the peace to designate at least six justices of the

peace in his county to dispense licenses; and the state derives a

revenue of two dollars for each license issued. By a provision still

appearing in the statute-book, though obsolete in practice, negroes

or mulattoes may be married without license or publication of banns;

provided "that each party (being free) shall produce the certificate

of the justice of the peace of the county that such party has made

before him satisfactory proof of freedom; or (being ... servant),

shall produce the written consent of his master or mistress."[1492]

[Footnote 1489: Following is the form of the marriage-license

bond: "That if there shall not hereafter appear any lawful let

or impediment, by reason of any precontract, consanguinity,

affinity, or any other just cause whatsoever, but that (the

parties) may lawfully marry; and that there is not any suit

depending before any judge, ecclesiastical or civil, for or

concerning such precontract, and also if the said parties, and

each of them, are of the ages aforesaid, to wit, female of

eighteen and male of twenty-one years, and are not under the

tuition of his or her parents, or have the full consent of his or

her parents or guardians, respectively, to the said marriage; and

if they, or either of them, are not indented servants and do and

shall save harmless, and keep indemnified the president and his

successors, for and concerning the premises, and shall likewise

save harmless and keep indemnified the minister or preacher of

the gospel, who shall join the said parties in matrimony, for or

by reason of his so doing; then the obligation to be void, else

to remain in full force; which said bond shall be filed of record

in the office of the secretary."-_Laws of Del._ (1797), II, 974,

975.]

[Footnote 1490: By act of June 15, 1793: in _Laws of Del._

(1797), II, 1127, 1128.]

[Footnote 1491: _Rev. Stat._ (1893), 103.]

[Footnote 1492: _Ibid._, 594; and _cf._ _ibid._ (1874), 473.]

The legislation of Ohio shows almost equal conservatism. For many

years after the organization of the Northwest Territory a triple

optional system of banns, license, or posting was there maintained.

The law of 1788 requires that either on Sundays, holidays, or other

days of public worship, in the towns where the bride and groom

respectively dwell, the banns shall be thrice published; or that a

written notice, under the hand and seal of a judge or a justice of

the peace of the county, shall be affixed in some public place in

such towns; or else a license shall be obtained from the governor

authorizing the marriage without publication.[1493] The details

of the plan were changed in 1803. License is then to be obtained

from the clerk of the court of common pleas for the county where

the woman resides. Twice publication of banns, the first time

ten days before the wedding; or notice by posting during fifteen

days, is declared sufficient. In the case of minors a license may

be issued only when consent of parent or guardian is personally

given or certified to, attested by two witnesses, one of whom must

personally appear and make oath or affirmation that he saw the

parent or guardian subscribe or acknowledge the same.[1494] After

1824 provision for public posting is no longer made,[1495] thus

reducing the Ohio plan to the more familiar system of optional civil

license or ecclesiastical banns which still survives. License is now

issued by the judge of probate in the county of the female; and the

law governing the consent of parent or guardian in case of minors is

identical with that of 1803, except that since 1810 persons under

age who have before been married are not required to give evidence

of such approval.[1496]

[Footnote 1493: CHASE, _Stat. of Ohio and the N. W. Ter._

(1833-35), I, 101.]

[Footnote 1494: Act of April 4, 1803; CHASE, _Stat._, I, 354,

355.]

[Footnote 1495: It is omitted in the act of Jan. 6, 1824: CHASE,

STAT., II, 1407, 1408; nor does it appear in SWAN, _Stat._

(1854), 569 ff.]

[Footnote 1496: _Ann. Rev. Stat._ (1897), II, 3016. _Cf._ the

act of Feb. 16, 1810: CHASE, _Stat._, I, 672, 673. See the

act of April 25, 1898, requiring a statement under oath from

persons applying for license; also evidence of parental consent

in case of minors; and allowing the parent or guardian, when

non-resident, to appear before a judge of a court of record

in the county where he is domiciled, and give his consent in

writing; such written consent must be attested by two witnesses,

certified to by the judge, and be forwarded to the probate judge

of the county where the license is to be issued: _Laws_ (1898),

309-11.]

By the first matrimonial statute of Michigan in 1805 a license

system is not established; but evidence of parental consent to the

marriage of minors is to be presented to the minister or magistrate

performing the ceremony. Within one hundred days the latter is to

return a certificate of the celebration to a clerk of the court

in the district where it takes place, who is required to keep a

record and report annually to the clerk of the superior court of the

territory.[1497] So the law remained until 1820, when the triple

optional system, as it then existed in Ohio, was introduced;[1498]

but this is not found in the existing law, which requires license in

all cases according to the more common American usage.

[Footnote 1497: _Laws of the Ter. of Mich._ (1871-84), I, 30-32.]

[Footnote 1498: _Ibid._, I, 646-49.]

Neither banns nor license has at any time been required in New York

during the century. Instead, as already pointed out, the person

conducting the celebration is authorized to identify the parties

by examining them or any other persons under oath.[1499] New Jersey

has maintained a similar plan, except that non-residents are

required to obtain a license from the county clerk five days before

the wedding.[1500] At present in case of minors the powers and

procedure of the person solemnizing are substantially the same as

those of the county clerk or other officer where the license system

prevails.[1501]

[Footnote 1499: _Cf._ _Rev. Stat. of N. Y._ (1827-28), 140: and

_ibid._ (1889), IV, 2597.]

[Footnote 1500: _Acts of N. J._ (1897), 378.]

[Footnote 1501: See above, subsec. _a_) and _cf._ _Laws of N. J._

(1800), 158 (act of 1795) with _Gen. Stat._ (1896), II, 2005;

_Pub. Laws_ (1889), 139. The celebrant may administer an oath as

to residence to either party; _Acts_ (1900), 327, 328.]

Pennsylvania has also followed methods peculiar to herself.

From 1730 to 1885 certificate of parental consent seems to have

been required for the marriage of minors; and such certificate

was presented directly to the person or society conducting the

celebration. By an act of the last-named year there was introduced a

license system which in 1893 was modified so as to permit a license

to be obtained from the clerk of the orphans' court, not only in the

county where the marriage is to take place but also in the county

of the residence of either the man or the woman.[1502] The clerk

is to keep a marriage-license docket, "in which he shall make a

complete record of the issuing of said licenses, and all matters

which he shall be required to ascertain, relative to the rights"

of the persons to obtain a license, "together with their ages and

residences." In getting a license the persons may proceed in one of

two ways. "Either separately or together" they may apply directly

to the clerk, who by oath or affirmation is authorized to inquire

concerning the legality of the contemplated marriage, and if there

be no legal objection, to issue the license; or in like manner, if

they prefer, they may "appear before any magistrate, alderman, or

justice of the peace of the township, ward or county, wherein either

... resides, and in the county where the license is desired, who

may ... inquire of them touching the legality of the contemplated

marriage." These answers and the replies, duly subscribed and sworn

to before the officer, may be forwarded to the clerk of the court,

who if satisfied therewith, and that no legal objection to the

marriage exists, may issue the license. But if either of the persons

intending to marry is under the age of twenty-one, the consent of

parent or guardian, given personally or attested by witnesses in

the usual way, is necessary. The license shall have appended to it

two certificates, one marked "original" and the other "duplicate."

The certificate marked "original" shall be given by the solemnizer

to the persons married; and the other must within thirty days be

returned to the clerk in the county of the celebration, to be

filed of record. It is, however, especially provided that in all

cases where the persons intend solemnizing their own marriage, the

clerk in "the proper county shall certify their right so to do in

a declaration in the following form": "Legal evidence having been

furnished to me, in accordance with the act of assembly ... this

certifies that I am satisfied that there is no legal impediment to

your joining yourselves together in marriage." When self-_gifta_

thus takes place, the persons contracting are required to make

duplicate certificates of their own wedding celebration, returning

one of them to the clerk, as in other cases provided by law.[1503]

[Footnote 1502: See _in re_ Marriage License Act, 15 _Pa. C. C._,

345 (1894); and PEPPER AND LEWIS, _Digest_, II, 2881, note.]

[Footnote 1503: _Laws_ (1885), 146; _ibid._ (1893), 27; _ibid._

(1887), 170; PEPPER AND LEWIS, _Digest_ (1896), II, 2878-83.]

In the remaining nineteen states of this group not yet considered,

except Alaska, the simple license system has been introduced. Save

here and there in certain cases specially provided for, a license is

always required. Thus, by the Minnesota law, "previous to persons

being joined in marriage, a license shall be obtained from the

clerk of the district court of the county in which the female

resides," or, if she be not a resident of the state, then from the

same officer "in the county where the marriage is to take place in

the state;" but if there shall be no such clerk in either of the

counties specified, no license is required. The clerk may inquire of

the persons under oath as to the legality of the proposed marriage.

If he "shall be satisfied that there is no legal impediment

thereto," he shall grant a license and make a record thereof.

Persons under age and not having had a former husband or wife must

have the consent of the parents or guardians personally given or

certified under their hands and seals, "attested by two witnesses,

one of whom shall appear before said clerk, and make oath or

affirmation that he saw said parent or guardian subscribe, or heard

him or her acknowledge the same." If a "clerk shall in any other

manner issue or sign any marriage license, he shall forfeit and pay

a sum not exceeding one thousand dollars" to the persons aggrieved.

The statute allows the clerk a fee of two dollars for each license

issued.[1504]

[Footnote 1504: _Gen. Stat. of Minn._ (1894), I, 1264, 1265.

Following is the form of license or "certificate" in Colorado:

"Know all men by this Certificate, that any regular ordained

minister of the Gospel authorized by the rules and usages of the

Church or denomination of Christians, Hebrews, or religious body

of which he may be a member, or any judge or justice of the peace

to whom this may come, he not knowing of any lawful impediment

thereto, is hereby authorized and empowered to solemnize the

rites of matrimony between .... of .... of the county of ....

Previously married? .... Wife deceased? .... Divorced? ....

When? .... Where? .... On what grounds? .... And .... of .... of

the county of .... Previously married? .... Husband deceased?

.... Divorced? .... When? .... Where? .... On what grounds?

...."--MILLS, _Ann. Stat. of Col._ (1891), III, 828.]

Similar powers and functions are exercised by the clerk of the

district court in Iowa and Montana;[1505] the county clerk, in

California, Colorado, Illinois, Michigan,[1506] Nevada, Oregon,

Utah, Wisconsin, and Wyoming; the clerk of the circuit court, in

Indiana and South Dakota; the probate judge, in Kansas and Ohio; the

county judge, in Nebraska; the county auditor, in Washington; the

county recorder, in Idaho; and by the judge of the county court,

in North Dakota. The license is issued by such officer from the

county of the woman's residence, in Indiana, Ohio, and Oregon; from

the county where either the man or the woman resides, in Michigan;

from the county where the marriage is to take place, in California,

Idaho, Illinois, Iowa, Montana, Nebraska, North Dakota, South

Dakota, and Wyoming; from the "proper" county, in Kansas; and from

"any county," in Colorado; from "a county auditor" in Washington;

the county where one or both of the persons dwell, or from any

county when both are non-residents, in Nevada; from the county of

the bride's residence, or, if she be a non-resident, from that of

the proposed marriage, in Wisconsin and Minnesota; and in Utah,

from the county where the female lives, provided that when she is

a widow or of full age, and it is granted on her application, it

may be issued from any county. In Kansas and Indiana a license is

not required in the case of Friends marrying according to their own

usage; and the same is true in Iowa, California, and South Dakota,

for the members of "any particular denomination having, as such,

any peculiar mode of entering the marriage relation." Wisconsin

requires the license to be obtained not less than five days previous

to the persons being joined in marriage; and has also provided for

celebration without license in urgent cases. Upon the application

of either party to a proposed marriage, any county judge, court of

record, or presiding judge thereof, in his discretion, by order may

authorize solemnization without license or the five days' notice.

Such order must be delivered to the person performing the ceremony,

who is to return it in place of or in connection with the license

to the register of deeds or of vital statistics.[1507] Michigan

has likewise made provision for cases of emergency where social

expediency seems to require exceptional rules. By a law of 1897,

amended in 1899, entitled "an act to provide for the protection

of the reputation and good name of certain persons," the judge of

probate in each county is authorized to issue without publicity a

license to any female who has lived with a man as his wife, or who

for any other reason expressed in her application, deemed sufficient

by the magistrate, "desires to keep the exact date of the marriage

a secret, to protect the good name of herself and the reputation of

her family."[1508]

[Footnote 1505: Act of March 14, 1895: in _Comp. Codes and Stat._

(1895), 476.]

[Footnote 1506: In Michigan a girl under eighteen must bring

written consent of parent or guardian before license will be

issued: _Pub. Acts_ (1895), 536, 537.]

[Footnote 1507: Act of April 29: _Laws of Wis._ (1899), 529-31;

_cf._ the act of 1903: _Laws_, 477, 478.]

[Footnote 1508: The judge of probate must issue a license without

publicity to a "female making application to him, under oath,

containing a statement that she is with child, which if born

alive before her marriage will become a bastard, or has lived

with a man," etc. With consent of parent or guardian, such judge

is empowered to marry persons under marriageable age, making

such a statement, whenever he believes the marriage "would be a

benefit to public morals." He is required to "file a complete set

of all papers in each case in a private file, and shall within

ten days after the marriage forward the duplicate thereof to the

secretary of state, who shall file such duplicate in a private

file and record the same in a private register." These private

files of the probate judge and secretary of state "shall be open

to inspection only upon the written order of the judge of any

circuit or the supreme court of this state, and only for such use

as is designated in such order. Such order shall be made only

upon the written request of the person or persons who were so

married, or when necessary to the protection of property rights

arising from or affected by such marriage."--_Pub. Acts of Mich._

(1897), 230, 231; _ibid._ (1899), 363, 364.]

Generally throughout the region under discussion penalties by fine

or imprisonment are prescribed for celebration without a license or

for illegally issuing the same.

In every instance, except in Alaska, the person or society

conducting the celebration is required to make a return to the

officer authorized to receive it, either in the town or, usually,

the county, where the license was issued, or in that of the

marriage.[1509] Such return is made either by separate certificate,

by indorsement on the license, or by certificate appended to it.

Several states, however, have enacted special provisions. In South

Dakota, for example, the marriage certificate must be "filed with

the clerk of the city or town where the marriage was solemnized,

or where either of the parties resides," or with the "register of

deeds of such county." By the Colorado statute return is made to

the clerk issuing the license; and the solemnizer must also send a

report to the clerk of the county where the marriage takes place.

In Iowa the person performing the ceremony is to make return to the

clerk of the district court; and, "when the services of a clergyman

or magistrate are dispensed with, the husband must make the return."

California has enacted that "when unmarried persons, not minors,

have been living together as man and wife, they may, without a

license, be married by any clergyman. A certificate of such marriage

must be made and delivered by the clergyman to the parties, and

recorded upon the records of the church of which the clergyman is a

representative;" and "no other record need be made." Furthermore,

when members of a religious society, having as such peculiar rites,

are married without a license, as the law permits, they must join

in a written declaration of the marriage, which shall be signed by

themselves and attested by at least three witnesses. Within thirty

days after the wedding this declaration must be filed by the husband

with the county recorder, who, after it is duly acknowledged, shall

record the same as in grants of real property.[1510] New York

requires that the certificate, given to each of the married persons

on request, signed by the officiating magistrate, shall be filed

and recorded, if within six months it is presented to the clerk of

the city or town where the marriage took place, or where either the

bride or groom resided. When it is a clergyman who conducts the

celebration, his certificate thereof may in the same manner be filed

and recorded, "if there be endorsed thereon or annexed thereto, a

certificate of any magistrate residing within the same county with

such clerk, setting forth that the minister is personally known

to such magistrate, and has acknowledged the execution of the

certificate in his presence;" or that the execution was proved to

the magistrate by the oath of a witness known to him.[1511]

[Footnote 1509: Return is made to the designated officer of

the county (or town) where the license was issued, in Idaho

(1899), Kansas, Michigan, Montana, Nebraska, Nevada (1899), and

Utah; but where the marriage was solemnized, in California,

Delaware, Illinois, Indiana, Minnesota, North Dakota, Washington,

Wisconsin, Wyoming, and Iowa. The Pennsylvania act of 1893

requires the return to be made to the clerk of the orphans'

court in the county where the marriage was solemnized; and this,

doubtless, supersedes the law of 1885, which designates for this

purpose the county from which license was issued, and which also

appears in PEPPER AND LEWIS, _Digest_ (1896), II, 2880, 2881,

2883. By the Ohio act of April 25, 1898, return is made to the

probate judge of the county where the license was issued, or

where the congregation in which publication of banns was made is

located, or where the marriage was celebrated: _Laws_ (1898),

309-11. Of course, the county of issue of license and the county

of celebration are usually the same. In Oregon return is made

both to the county clerk issuing the license and to the clerk of

the county of the marriage: _General Laws_ (1903), 99, 100.]

[Footnote 1510: _Statutes of S. D._ (1899), II, 1023; _Rev.

Codes of S. D._ (1903), 598; MILLS, _Ann. Stat. of Col._ (1891),

II, 1679; _Code of Iowa_ (1897), 1124, 1125; _Amendments to the

Civil Code of Cal._ (1873-74), 187; DEERING, _Codes and Statutes_

(1886), II, 27, 28; Act of 1897: _Amendments to the Civil Code_,

sec. 79-1/2, p. 186.]

[Footnote 1511: _Rev. Stat. of N. Y._ (1889), IV, 2598; the same

in _Rev. Stat._ (1827-28), 140, 141.]

By the rules prevailing in every state, save New Jersey, the

official receiving the return must register or file the same

of record. The prescribed term within which the report of the

celebration must be submitted is thirty days (or "one month") in

California,[1512] Colorado, Idaho, Illinois, Kansas, Minnesota,

Montana, Nevada, New Jersey,[1513] North Dakota, Ohio,[1514] Oregon,

Pennsylvania,[1515] South Dakota, and Utah; ninety days (or "three

months"), in Indiana, Iowa, Michigan, Nebraska, Washington, and

Wyoming; and six months in New York. South Dakota, in addition to

the return by the solemnizer, provides that within six months after

the wedding the certificate given to the persons married may be

"filed" in the manner above described; and, when thus filed, it must

be entered in a book to be provided by the clerk or register for the

purpose.[1516] By the Wisconsin law the license, with a certificate

of the marriage, must be returned by the person conducting the

celebration to the register of deeds of the county where the license

was issued, provided that in cities of the first class the report

shall be sent to the registrar of vital statistics, who is to place

it on file.[1517] In Delaware the person solemnizing must keep a

record and "annually, in March, deliver to the recorder of deeds for

the county, a true extract therefrom" of all entries for the year

preceding.[1518]

[Footnote 1512: In California the original license, with the

certificate of solemnization indorsed and attached must be filed

with the county recorder in thirty days: DEERING, _Codes and

Stat._ (1886), II, secs. 73, 74, pp. 26, 27; but, in addition,

the state registration law requires every person solemnizing

marriages to keep a "registry," and "quarterly" to submit to the

county clerk a certified copy of it: _ibid._, I, secs. 3074,

3077, pp. 460, 461.]

[Footnote 1513: So by the act of Feb. 15: _Pub. Laws of N. J._

(1888), 52 ff., as amended by that of March 29: _Pub. Laws_

(1892), 351; both in _Gen. Stat._ (1896), II, 2011, 2012.]

[Footnote 1514: The period within which the certificate must be

returned to the probate judge was formerly ninety days: _Ann.

Stat. of Ohio_ (1897), II, 3017; but by the act of April 25,

1898, it is fixed at thirty days: _Laws_ (1898), 309-11.]

[Footnote 1515: By the act of March 1, 1893, amending that of

June 23, 1885: PEPPER AND LEWIS, _Digest_ (1896), II, 2880, 2881,

2883.]

[Footnote 1516: _Stat. of S. D._ (1899), II, 1021, 1023.]

[Footnote 1517: A period within which the return is to be made

does not seem to be fixed: Act of April 29: _Laws of Wis._

(1899), 530.]

[Footnote 1518: _Rev. Stat. of Del._ (1893), 594; practically the

same in _ibid._ (1874), 472-74.]

Only in Wisconsin is there any provision for return when the

marriage of a resident takes place outside the state.

Provision for giving a certificate to the persons married, on

request or otherwise, is made by Alaska, California, Idaho, Iowa,

Michigan, Minnesota, Montana, Nebraska, Nevada, New York, Oregon,

Pennsylvania, South Dakota, Washington, Wisconsin, and Wyoming.

Creditable progress is also shown in a number of the states of this

group in providing for a proper record of marriages, and for the

collection, registration, and publication of social statistics. Thus

in California, Delaware, Idaho, Iowa, Michigan, Nevada, New Jersey,

New York, Ohio, South Dakota, and Wisconsin the person conducting

the celebration is required to keep a record;[1519] and everywhere,

save in one instance, as already seen, the clerk or other officer

of the county or town must register the facts contained in the

license issued or the certificate returned; and usually the

original documents are filed for preservation.[1520] Moreover, a

goodly number of commonwealths have wisely created systems of state

registration which promise to be of great service in the future

of American society. Beginning in 1881, Delaware has established

such a system. The state board of health, composed of "seven

physicians of skill," has general oversight, appointing one of its

own number as secretary, who performs the duties of "superintendent

of registration of vital statistics." To him the recorders of

the several counties are required to send information.[1521] An

elaborate registration act was adopted in New Jersey in 1888; and

this, as amended in 1892, is still in force. Thirty days after the

solemnization of any marriage a certificate thereof is to be sent

to the proper officer, setting forth the "name, age, parentage,

birthplace, occupation, and residence of each of the persons

married, the time and place of the marriage, the condition of each

of the persons married, whether single or widowed, the name of

the minister, magistrate, or person by whom, or of the religious

society before which the marriage was solemnized, and the names and

residences of the witnesses." The certificate is to be returned to

the "registrar of vital statistics," or, if there be none, the clerk

of any city, borough, town, or other municipal government, or to the

assessor or clerk of a township. These local officers are required

each month to forward the certificates and the "special return"

provided for by law to the state board of health, whose secretary is

styled the "medical superintendent of vital statistics."[1522]

[Footnote 1519: The Pennsylvania act of 1849 requiring a

transcript of the marriage record to be given to the person

applying therefor, on payment of the prescribed fee, still

appears to be in force: PEPPER AND LEWIS, _Digest_ (1896), II,

2879.]

[Footnote 1520: Both Oregon and Washington allow the solemnizer

to keep the license, the clerk or auditor first recording the

facts contained therein: _Codes and Stat. of Ore._ (1902), II,

1684; _Ann. Codes and Stat. of Wash._ (1897), I, 1177, 1178.]

[Footnote 1521: See the act of April 7, 1881: _Laws_, XVI, chap.

381; act of March 13, 1879, amended and republished, April 11,

1893: _Rev. Stat._ (1893), 296-98, 405-8.]

[Footnote 1522: Act of Feb. 15: _Pub. Laws of N. J._ (1888), 52

ff.; act of March 29: _ibid._ (1892), 351; _Gen. Stat._ (1896),

II, 2006-12, 1634, 1635 (board of health); act of Feb. 27, 1901:

_Acts of N. J._, 36.]

Ohio has a similar plan of local and state administration. The

mayor of each of the smaller cities and villages, and six persons

nominated by the council, including two medical practitioners,

constitute a board of health which is authorized to appoint a health

officer and "create a complete and accurate system of registration

of births, marriages, deaths, and interments, for the purpose of

legal and genealogical investigations, and to furnish facts for

statistical, scientific, and sanitary inquiries." The secretary of

state is required each year to prepare and submit to the general

assembly a full and accurate report of the statistics of Ohio.[1523]

A system of state registration of births, marriages, deaths, and

divorces has existed in Michigan since 1867. The secretary of state

is required to furnish the clerks of the respective counties with

suitable blank books for record and forms for reports. The reports

of these local officials are to be properly bound and indexed under

the direction of the secretary; "and with such assistance as may be

voluntarily rendered by any authorized committee appointed by the

medical faculty of the University of Michigan, or by any regularly

authorized medical society ... , he shall prepare such tabular

statements, results, and deductions therefrom as will render them of

practical utility, and make report therof annually to the governor."

But in reality this report, under the general direction of the

secretary, is prepared and published by the secretary of the state

board of health.[1524]

[Footnote 1523: The law does not apply to cities of the first

class nor to those of the second class, Grades 1, 2, and 3_a_.

Special provision is made for a board of health in Cincinnati

(cities of the first grade of the first class): BATES, _Ann. Rev.

Stat._ (1897), I, 97, 978, 979.]

[Footnote 1524: _Cf._ act of 1867: _Pub. Acts_ (1867), 266; that

of 1869: _ibid._ (1869), 214; _ibid._ (1899), 67, 68; and HOWELL,

_Gen. Stat._, 1, 96, 276-80, 464; _Comp. Laws_ (1899), II, 1451

ff.]

As early as 1852 Wisconsin made provision for registration of

births, marriages, and deaths; and the plan then adopted, with some

modification, still exists. By a statute of 1897 the register of

vital statistics in every city having such an officer is required

to keep a record of all marriages celebrated therein, in the same

way as he does of births and deaths. To him the persons or societies

conducting marriage celebrations are required to send certificates

thereof; and every week these certificates must by him be forwarded

to the register of deeds of the county or city. For the commonwealth

the secretary of the state board of health, under the direction of

the secretary of state, performs the same functions as discharged by

that official in Michigan.[1525]

[Footnote 1525: _Cf._ _Acts_ (1852), 763-69; _Rev. Stat._ (1858),

618-22; _Ann. Stat._ (1889), I, 648-52; _Laws_ (1897), 373; _Wis.

Stat._ (1898), I, 1055, 785 ff.]

Provision for similar registration, under authority of the state

boards of health, is made by the laws of Indiana, Iowa, Kansas,

Minnesota, and Pennsylvania. California has a similar statute.

Careful provision is made for keeping registers of births by

physicians and midwives; of deaths, by clergymen who officiate

at funerals, coroners who hold inquests, sextons and undertakers

who bury deceased persons; and by those who conduct marriage

celebrations. Certified copies of all these registers are to be

filed quarterly with the respective county recorders; and every

three months these officials are required to transmit a "certified

abstract" of their own registers to the secretary of the state board

of health at Sacramento. This body consists of seven physicians

appointed for four years by the governor; and at each biennial

session of the legislature it is authorized to make a report, "with

such suggestions as to legislative action" as it deems proper.[1526]

[Footnote 1526: DEERING, _Codes and Stat._ (1886), I, 442 ff.,

460 ff.]

The New York law is very careful and elaborate. There are local

boards of health in towns, incorporated villages, and cities. In the

town the board consists of the clerk and the justices of the peace,

together with a "citizen" appointed by them; in the incorporated

villages, of from three to seven members nominated by the village

trustees. The village and town boards each hold office for one

year, and each is authorized to appoint a "competent physician" to

serve as "health officer," who, in the case of the village, may

not be a member of the board. The city board is composed of six

members, at least one of whom shall be a physician, all appointed

by the common council. The board thus constituted is authorized to

choose a president and to select a competent physician as health

officer. The six members hold office for one, two, and three years,

respectively, by pairs. It is made the duty of each of these local

boards "to supervise and make complete the registration of all

births, marriages, and deaths occurring within the limits of its

jurisdiction in accordance with the methods and forms prescribed

by the state board of health, and to secure the prompt forwarding

of the certificates of birth, marriage, and death to the state

bureau of vital statistics after local registration." To attain

completeness in such registration, "it shall be the duty of the

parents or custodians of every child, and the groom at every

marriage, or the clergyman or magistrate performing the ceremony,

to secure the return of the record of such birth or marriage to the

board of health or person designated by them within thirty days

from the date" of the same, "and each record shall be duly attested

by the physician or midwife (if any) in attendance at such birth,

or the clergyman officiating at such marriage." If in any place

the state board of health ascertains that the registration is "not

completely and well made," it may notify the delinquent local board

that within one month such "defects and neglects in the records must

be amended and prevented." If the abuses are not remedied within the

period named, the state board is required to take control of the

records, and to "enforce the rules and regulations" so as to make

them complete.

The bureau of vital statistics has general charge of the state

system of registration, under direction of the state board of

health. The latter body consists of three "state commissioners of

health," appointed by the governor with the advice and consent of

the senate, and six other members, three nominated by the governor,

and three serving _ex officio_. It appoints a secretary who is

"superintendent of registration of vital statistics;" and it makes

an annual report to the governor regarding "vital statistics and the

sanitary condition and prospects of the state."[1527]

[Footnote 1527: _Cf._ the act for registration of births,

marriages, and deaths: _Laws_ (1847), chap. 152, repealed by

_Laws_ (1885), chap. 270; _Laws_ (1880), chap. 322; and _Rev.

Stat._ (1889), II, 1205, 1207, 1209, 1195-98 (state board), IV,

2610, 2611 (clauses relating to New York city).

In general, to trace the history of the topics treated in this

subsec. _c_), consult the last note in subsec. _b_).]

* * * * *

Transcriber's note:

Minor typographical and punctuation errors have been corrected

without note. Irregularities and inconsistencies in the text have

been retained as printed.

Mismatched quotes are not fixed if it's not sufficiently clear where

the missing quote should be placed.

In the Table of Contents: III. The Evils of the Spiritual

Jurisdiction 351-359"--350 was changed to 351.

The cover for the eBook version of this book was created by the

transcriber and is placed in the public domain.