Part 3 — CHAPTER XVI A CENTURY AND A QUARTER OF MARRIAGE LEGISLATION IN THE UNITED STATES, 1776-1903

[Bibliographical Note XVI.—For this chapter all the statutes relating to marriage enacted in fifty-two states and territories since the Revolution have been examined and compared, Hawaii not being included. The session laws and various compilations of statutes consulted are described in the Bibliographical Index, V, and need not here be named in detail.

Hitherto a history of matrimonial legislation in the United States has not appeared; but summaries of the laws of the various states have been made for particular periods. Of these the most important is the accurate digest for 1887-88—the time of compilation—contained in Wright's Report on Marriage and Divorce (Washington, 1889; reprinted without change, 1897). There is also a summary in Stimson, American Statute Law (Boston, 1886), I, 664 ff.; and for the sake of completeness may also be mentioned Vanness, A Digest of the Laws of New York and New England, on Marriage, Dower, Divorce, etc. (Hartford, 1877); Noble, A Compendium and Comparative View of the Thirty-Eight State Laws of Marriage and Divorce (New York, 1882); with the discussion of Cook, "Reform in the Celebration of Marriage," in Atlantic Monthly, LXI (Boston, 1888); Convers, Marriage and Divorce in the United States (Philadelphia, 1889); Snyder, The Geography of Marriage or the Legal Perplexities of Wedlock in the United States (New York, 1889); Ernst, The Law of Married Women in Massachusetts (2d ed., Boston, 1897); and Whitney, Marriage and Divorce (Philadelphia, New York, Boston, and Chicago, 1894). Consult the parliamentary return of Marriage Law and Divorce Law in foreign countries and the colonies (London, 1894); and see also Bibliographical Note XVIII.]

I. THE NEW ENGLAND STATES

The foundation of the marriage law of the United States was laid long before the War of Independence. Some features have since been pruned away, and others have been changed or added; but the existing forms of celebration, the modes of registration, and the leading principles of matrimonial jurisprudence had already been developed. The century has produced a great mass of legislation; but so far as it is new it is concerned largely with administrative details, often of very great importance as determining the effective character of the law.

a) The solemnization.—In New England before the end of the colonial period the religious ceremony had long since been made optional with the lay celebration before a magistrate, which was the only form allowed in the beginning. This system is continued after the Revolution. As elsewhere in the country, the minister and the justice of the peace now share the business between them. The earlier statutes are generally more strict than the later regarding the place of residence and the territorial jurisdiction of the persons authorized to celebrate matrimony. For example, by the Massachusetts act of 1786 any justice of the peace may solemnize lawful wedlock within his own county; while a minister of the gospel, if "stated and ordained," may act only in the "town, district, parish, or plantation where he resides," provided one of the persons lives there too. If a place be destitute of a minister of any denomination, then a neighboring clergyman of the same society may serve; but only in the town or district where the bride or bridegroom dwells.[1117] In 1821 such ordained and stated minister, although living outside of the district over which he is settled, may conduct the ceremony at his own place of residence or at that of either of the persons, provided one or both of them is a member of his congregation. If there be no such minister in the place, then the couple desiring to be married may go to any other clergyman in the commonwealth, who in such case is authorized to act.[1118] All previous laws on the subject are repealed in 1834, when a new statute empowers the minister or justice, each in his own place of residence or in that of either of the persons, to perform the ceremony, if at least one of them lives in his official district.[1119] The present law is still broader in its terms. A marriage may now be solemnized in any place within the commonwealth by Jewish rabbis duly accredited; Friends according to their rites; any minister of the gospel, ordained according to the usage of his denomination, who resides in the commonwealth and continues to perform the functions of his office; or, until a few years ago, by any justice of the peace.[1120] By the act of May 23, 1899, an important change is made. Henceforth no justice of the peace may solemnize a marriage unless he also holds the office of city or town clerk, city registrar, clerk of a court, or that of assistant in either case; or "unless he shall have been specially designated by the governor." The latter may at his discretion name justices of the peace "who may solemnize marriages in the city or town in which they severally reside." Each place is to have at least one such designated magistrate; but otherwise the number is not to exceed one for every five thousand of its inhabitants. No justice may act without a certificate of designation, which the governor is authorized to revoke whenever he thinks fit; and every year in January the secretary of the commonwealth is required to send to the respective clerks or registrars a list of the justices to which authority is thus granted.[1121] However, by the Massachusetts law is prescribed the wise, though unique, condition that the ceremony may be conducted only by a person who is able to read and write the English tongue.[1122]

The course of legislation in the other states has been much the same as in Massachusetts previous to 1899. In all of them throughout the century, except in Rhode Island, justices of the peace in their respective counties have had authority to solemnize marriages. In that commonwealth any justice of the supreme court may now act,[1123] as earlier could the assistants, justices of the peace, and justices of the courts of common pleas.[1124] For over fifty years the judges of the county and higher courts in Connecticut have had the same power;[1125] and so during the assumption period had the councilors, judges, and even the governor and deputy governor, in Vermont.[1126] But in that state, after the admission to the Union, the justice of the peace has always been the only lay officer empowered to conduct the ceremony.

The law governing the ecclesiastical celebration has been a matter of slower growth and of much experimentation. That of Massachusetts has already been described. The New Hampshire statute of 1791 provides that marriage may be celebrated by any "ordained minister" in the county where he is settled or has his permanent residence.[1127] For many years thereafter no change was made in that requirement.[1128] But in 1833 every resident "ordained minister," if in "regular standing" with his denomination, is authorized to act throughout the state, after causing the "credentials of his ordination to be recorded in the office of the clerk of common pleas, in the county where he shall solemnize any marriage."[1129] The present law is the same in substance, except that the filing of credentials is not mentioned. A non-resident minister, similarly qualified, may now officiate anywhere in the state, on receiving a commission from the governor acting on the advice of the council; and within his own parish, when having a pastoral charge wholly or partly within the state.[1130] Authority in the state to join persons in wedlock is granted to "settled" or "ordained" ministers or elders of the leading churches by the Rhode Island laws of 1798;[1131] to the ministers or elders of any religious denomination who may be "domiciled" in the state, by the revision of 1844;[1132] and by the present law the same elder or minister may obtain a license to join persons in marriage, when he shall have registered his residence, the name of the parish with which he was last "associated, if any, and the name of the religious denomination to which he belongs, in the office of the town clerk of the town in which he resides ... in a book to be provided for that purpose," and "shall have subscribed his name thereto."[1133]

By the first laws of Maine like authority, in the counties where they dwell, is conferred upon ordained ministers, who shall be duly appointed and licensed during pleasure by the governor with the advice and consent of the council; provided either of the persons resides in the same county.[1134] In 1828 this restriction is removed; and the ministers of any denomination of Christians may be so commissioned for counties other than those in which they dwell.[1135] The law has since taken a different form. Power is now granted, during the pleasure of the executive, to every ordained minister of the gospel and to every person licensed to preach by an association of ministers, religious seminary, or ecclesiastical body, who shall be duly appointed and commissioned for that purpose by the governor.[1136] Moreover, in this state women, otherwise eligible under the constitution, may in the same way be commissioned to celebrate matrimony.[1137] In Vermont during the assumption period similar authority was granted to "settled" ministers in their respective towns while they continue in the ministry.[1138] The district of the "ordained" minister was extended to the county in 1797.[1139] Three years later, because "irregular itinerant preachers, under pretence of being ordained ministers of the gospel," in remote parts of the county, practiced impositions, and marriages solemnized by them were wholly illegal, it was again restricted to the town;[1140] but the act making this change was itself repealed in 1802.[1141] By a statute of 1806 a minister is required to file credentials of his ordination with the clerk of the town where he shall solemnize any marriage.[1142] But a more liberal provision appears in the revision of 1839, any resident minister of the gospel being then authorized to celebrate wedlock throughout the state.[1143] By the law as it now stands the same power is conferred upon a clergyman, ordained according to the usage of his denomination, who resides in the state, or else "labors statedly therein as a minister or missionary."[1144]

Ordained ministers of the "several plantations" of Connecticut, as already seen, in 1694 were first allowed to share with the justices of the peace the function of joining persons in marriage. Their power was restricted to their respective towns in 1702. It was extended to the county in 1783;[1145] and the clergyman is to have authority "while he continues settled in the work of the ministry." In 1820 the word "settled" was dropped. In the revision of 1821 marriages celebrated according to the rites of any religious denomination were declared valid.[1146] Authority to solemnize was granted in 1847 to any clergyman regularly licensed according to the forms and usages of the denomination to which he belongs, and having charge of a society for one year or more.[1147] Finally, since 1855, the same power has been conferred upon all ordained or licensed clergymen of Connecticut or any other state while engaged in the work of the ministry.[1148]

The law of Connecticut still retains the broad provision that marriages celebrated according to the rites of any religious society within the state are valid.[1149] This, of course, includes the Quakers, who in each of the other New England states are expressly permitted to follow their own usages in this regard, as also are the Jews in Rhode Island.[1150] No form of ceremony is anywhere prescribed; nor, except in Rhode Island, are any witnesses required by the statute.[1151] In New Hampshire persons living together and acknowledging each other as husband and wife, and generally reputed to be such for the period of three years or until the death of one of them, shall thereafter be deemed to have been legally married.[1152] Various penalties are prescribed in the different states for unauthorized celebration;[1153] but in Maine, Massachusetts, New Hampshire, Vermont, and Rhode Island it is expressly provided that when a marriage has been solemnized by a person professing to be legally authorized, although not so authorized, its validity shall be unaffected by such lack of authority, if it is valid in other respects, and entered into by the parties or one of them in the belief that they were lawfully wedded.[1154] It is also enacted in Massachusetts, Maine, New Hampshire, and Rhode Island that the validity of a marriage shall not be affected by any omission or informality in entering the intention to marry.[1155]

b) Forbidden degrees: void and voidable marriages.—In none of these states is any definition of marriage laid down in the statutes; but in effect matrimony is treated as a relation partaking of the nature of both status and contract.[1156] The age of valid consent to marriage—not to be confused with the so-called "age of consent" under the criminal laws enacted to protect a child from legally agreeing to its own ruin[1157]—is prescribed only in New Hampshire, where it is fourteen for males and thirteen for females.[1158] Elsewhere in New England the common-law rule of fourteen for boys and twelve for girls probably obtains. On the other hand, in all these states, except New Hampshire, the age below which parental consent is necessary for a legal contract is named in the statute. For males it is everywhere set at twenty-one years. For females it is eighteen years in Maine, Massachusetts, and Vermont; and twenty-one years in Connecticut and Rhode Island. But in Maine and Massachusetts consent is required only when the minor has a parent or guardian living in the commonwealth. The Rhode Island law expressly provides that a license may be issued to a person of over eighteen years when such person has no parent or guardian residing in the state;[1159] and the same is true in Connecticut of a female under age when a selectman of the town where she has last resided six months gives his consent.[1160] Massachusetts has taken wise precaution regarding the marriage of minors below a certain age. By an act of 1894 no town or city clerk is permitted to receive a notice of the intention of marriage of any male under eighteen or any female under sixteen years of age, unless the "judge of probate in each county after due hearing" shall "make an order allowing the marriage under the age specified;" but such order may be issued only when the minor resides in the county where the judge holds court, or when the father, mother, or guardian gives consent.[1161] A law of March 28, 1899, amending the above act, allows the probate judge to make a similar order in case of a person of either sex whose age is alleged to exceed that just specified, but who is unable from any cause to produce an official record of his or her birth, to overcome the reasonable doubt of the town or city clerk or registrar. On receipt of a certified copy of this order such local officer is required to receive the notice of intention and issue a certificate, as in other cases.[1162]

The statutes of all of these states contain a list of kindred by blood or affinity with whom marriage is prohibited. The restrictions, of course, invariably include all persons in the ascending or descending line; and also, as a rule, those related within the third degree of collateral consanguinity.[1163] Only in New Hampshire are first cousins now forbidden to marry;[1164] but throughout New England the inhibition extends to unions between aunts and nephews or uncles and nieces. In Connecticut for a time we find a survival of mediæval prejudice regarding affinity. Marriage with the daughter of a wife's sister or brother was there first permitted in 1750.[1165] But it was not until 1793 that the prohibition of wedlock with a deceased wife's sister was dropped;[1166] while, curiously enough, it was retained with respect to a deceased brother's wife until 1816.[1167] By the existing law of all these states marriage with a step-parent is forbidden; and in them all, save Connecticut, a person may not, with impunity, wed a father-in-law or a mother-in-law. Marriage within the forbidden degrees is everywhere void;[1168] the children illegitimate, and the offenders liable to severe penalties.[1169] In Connecticut until some years after the beginning of the last century, just as in old colonial days, offenders against the law of prohibited degrees were "set upon the gallows" and condemned to wear the "scarlet letter." The statute of that state still required the adulterer to carry the halter round his neck during life;[1170] and similar penalties were yet prescribed in some other New England commonwealths.[1171]

Marriages may also be void or voidable on grounds other than the forbidden degrees. Such grounds are want of lawful age of consent, in Maine, Vermont, and Massachusetts;[1172] insanity or idiocy, in those same states and in Rhode Island;[1173] physical incapacity, fraud, or violence, in Vermont;[1174] and bigamy everywhere except in Connecticut where the statute is silent.[1175] In Maine[1176]—as formerly in Rhode Island[1177]—a marriage between a white person and a negro, Indian, or mulatto is void without legal process. Until 1843 Massachusetts had a similar law; and its repeal at that time seems to have been preceded for several years by much popular interest and discussion. Petitions for and against the repeal, numerously signed, were presented to the legislature. These were referred to committees, and several formal reports thereon were made. One of them, earnestly favoring the abrogation of the existing law, alleges that the petitions considered were in the aggregate signed by 3,674 men and 5,032 women. On the other hand, a House report in 1839 strongly opposes the proposed change and treats the petition of many good women of Lynn, Brookfield, Dorchester, and Plymouth with unseemly levity and ridicule.[1178] In Connecticut a marriage attempted to be solemnized by an unauthorized person, whether the parties act in good faith or not, is likewise void without decree.[1179] Furthermore, in Maine, Vermont, and Massachusetts marriages are void when residents, "intending to return, go into another state and have their marriage solemnized with intent to evade the prohibition against incestuous or bigamous marriages, or against marriage with an insane person or idiot, and afterwards return and reside in the home state."[1180]

It should also be observed that unions which in some states are void or voidable, in others may be merely prohibited or placed under penalty. The laws of New England in this regard, like those of the other commonwealths, are sometimes confusing and far from uniform in their provisions; and, as Wright suggests, marriages which by the language of the statute appear to be simply forbidden or punishable may nevertheless be construed as void or voidable by the courts.[1181] For when the statute is silent the common law may be in force. Bigamous marriages are so prohibited and punished in Connecticut;[1182] the marriage of a female, procured by force, menace, or duress, in Maine;[1183] and the clandestine marriage of a girl under sixteen years of age, in Massachusetts.[1184] A recent act of Connecticut has set up a bar to matrimony which would be welcomed by the social reformer in other states. Hereafter a couple, either of whom is epileptic, imbecile, or feeble-minded, is forbidden to marry, when the woman is under forty-five years of age; and any selectman or other person aiding in procuring such a union or the marriage of a pauper, when the woman is below that age, is liable to a fine of not less than one thousand dollars or to imprisonment for not less than one year, or to both penalties, as the court may decide.[1185] The laws of Maine also put some check upon the propagation of paupers, the town clerk being forbidden to issue marriage licenses to such persons when the overseers deposit in his office a list of the paupers in their charge.[1186] A statute somewhat similar exists in Vermont.[1187] On the other hand, the New England states afford no example of direct statutory encouragement of wedlock such as exists in a few instances elsewhere in this country; though in all of them, except Rhode Island, indirect encouragement is given through providing that illegitimate children may be legitimized by the marriage of their parents.[1188] Agreements in consideration of marriage are generally void unless made in writing.[1189]

c) Certificate and record.—With respect to the notice of intention required by law before a marriage may be solemnized, the century may be divided into two very nearly equal periods. During the first half in all of the New England states proclamation by oral banns in the ancient ecclesiastical manner, or a written notice through posting by the town clerk, is left to the option of the persons; while during the second half the simple license or certificate of the clerk is deemed sufficient. In Connecticut the institution of banns according to the form observed in colonial times was very tenacious. By the statute of 1784 intentions of marriage must either be "sufficiently published in some public Meeting, or Congregation on the Lord's Day, or on some public Fast, Thanksgiving, or Lecture Day in the Town, Parish, or Society where the Parties, or either of them do ordinarily Reside;" or else be "set up in fair Writing upon some Door, or Post of their Meeting-House, or near the same in public View, there to stand, so as it may be read," eight days before the wedding.[1190] This provision—arising in a modification of the act of 1640 made in 1672[1191]—appears in the revision of 1750 and each following edition of the laws until 1854, when it gave place to the modern usage.[1192] The New Hampshire plan is somewhat different. In that state there is a sort of blending in one of the ecclesiastical and lay notices. By the act of 1791 publication is to be made by the clerk; but at three "several public meeting days, or three sabbath days," in the respective towns of the bride and groom.[1193] This plan was retained until 1854.[1194] On the other hand, the Massachusetts law of 1786 is typical in this regard. Intentions must be announced in three public religious meetings, at intervals of three days' distance exclusively, or they must be posted by the town clerk during fourteen days. Should the banns be forbidden and the reasons therefor assigned in writing, the clerk is to "forbear issuing a certificate" until the matter has been examined by two justices of the county, quorum unus. But the person forbidding the banns must cause the question to be determined within seven days, unless the justices certify to the clerk that more time is needed. If the objections to the marriage are not sustained, the complainant must pay the costs of the proceedings, and the clerk shall issue the license. For pulling down or defacing a marriage notice a penalty of twenty shillings or of one hour in the stocks is imposed.[1195] This dual system of notice, with little change in the trial of banns, appears in the statute-book until 1850.[1196] The experience of the other three states is very similar: optional publication in church or by posting being retained until the middle of the century, or in some cases even to a much later time.[1197]

The various formalities to be observed in getting married and in registering the facts connected therewith, as required by the existing system, may now be briefly set forth. The first step is application to the town clerk or registrar for a license, or "certificate" as it is usually called. This takes the place of the certificate of publication issued by the minister, clerk, or other person asking the banns or posting the notice, provided for in the earlier laws. By the Massachusetts statute persons intending to be joined in marriage shall "cause notice of their intention to be entered in the office of the clerk or registrar of the city or town in which they respectively dwell, or, if they do not dwell within the commonwealth," then with the similar officer of the place "in which they purpose to have the marriage solemnized. If there is no such clerk or registrar in the place of their residence, the entry shall be made in an adjoining city or town." The certificate is issued at the time the notice is filed; but certificate to a minor[1198] is forbidden except upon the application or consent in writing of the parent, master, or guardian, if living in the state, under penalty of not to exceed one hundred dollars. To protect himself, the clerk or registrar "may require of an applicant for such certificate an affidavit setting forth the age of the parties;" which "affidavit shall be sworn to before a justice of the peace, and shall be sufficient proof of age to authorize the issuing of the certificate." For a false statement in the affidavit the penalty is not to exceed two hundred dollars.[1199] In this state a town of more than two thousand inhabitants is allowed to choose a person other than the clerk to be registrar.[1200]

The laws of Vermont and Maine differ but little in the leading points from those of Massachusetts; but in Maine the notice of intention must be recorded with the town clerk where each person resides, if both live in the state, at least five days before the marriage.[1201] More elaborate are the provisions of the Rhode Island, New Hampshire, and Connecticut statutes, requiring the clerk to enter on the certificate the various facts gathered as statistics, to which reference will again be made.[1202] In all cases a penalty, severe under some recent enactments, is imposed upon the minister, justice, or other officer who presumes to celebrate a marriage without first receiving the certificate signed as the law requires.[1203]

Provision is everywhere made for a "return" or report by the persons or religious societies solemnizing marriages.[1204] In Connecticut, Vermont, and Rhode Island the return is made by indorsement upon the certificate, which is then sent to the clerk or registrar of the city or town whence it was issued or in which the celebration took place.[1205] By the Connecticut law of 1899 the return must be made before or during the first week of the month following the ceremony.[1206] In Maine and Massachusetts the societies or persons authorized to celebrate marriages are required to keep a record, and from it make periodical return to the clerk or registrar of the town in which the license was issued. By the Maine law the return must be made by the fifteenth day of each month, and a similar report sent to the clerk of the town where the intention was entered.[1207] The Massachusetts statute orders that between the first and tenth days of each month the certificate of each marriage celebrated shall be sent to the clerk or registrar of the city or town issuing the same, and if the marriage be solemnized in a city or town other than the place or places in which the persons reside, then a copy of the certificate, or of either certificate in case two were issued, must be returned to the proper officers of their respective places.[1208] The Massachusetts laws provide also that when marriages take place in another state between persons living in the commonwealth, such persons shall within seven days after their return file with the clerk or registrar of the town in which either lived at the time a certificate or declaration of the marriage, including the facts relating thereto required by law.[1209] A like return of marriages celebrated outside the state is prescribed in Maine[1210] and New Hampshire.[1211] In Vermont a "male resident" so married must within sixty days thereafter deposit with the clerk of the town where he resides a certificate embracing the statistics required by law.[1212] The statutes of Vermont also provide that the head of a family who moves into the state to become a permanent resident may cause a certificate of his marriage, including the same statistics, to be recorded in like manner.[1213]

In recent years most of the New England states have made wiser provision than in the earlier period for the collection and preservation of statistics relating to marriage. The town clerk or registrar is required to keep a more complete record. The statutes prescribe a large number of details which must be entered by him, sometimes even as a condition of granting the license. An illustration is afforded by the Massachusetts act of 1897. Clerks are commanded in each case to enter and report the date of the record; the date and place of the marriage; the name, residence, and official station of the person solemnizing; the name, place of birth, residence, age, and color of each of the parties; the number of the marriage, and whether either party is widowed or divorced; the occupation of each; the names of the parents, with the maiden names of the mothers; and the maiden name of the bride in case she be widowed or divorced.[1214] A similar list of facts is called for in New Hampshire;[1215] while the recent enactments of Maine,[1216] Connecticut,[1217] and Rhode Island[1218] on this subject are especially painstaking and elaborate.

Finally it may be noted, as a sign of the growing appreciation of the needs of social and statistical science, that throughout New England statutory provision has been made for state registration of marriages. The local clerks and registrars are required to make annual report of the facts collected and recorded by them to the general registrar, who is usually the secretary of the commonwealth or the secretary of the state board of health.[1219] By the Rhode Island statutes the original indorsed certificates, returned to the town clerk and by him recorded, are to be sent to the secretary of the state board of health, who is to cause abstracts of them to be made and published. Thereafter they are to be deposited in the office of the secretary of state, where they shall be properly indexed and remain subject to inspection.[1220] Connecticut is doing still better in this regard. By a series of acts, beginning in 1893, that state is making a praiseworthy effort to complete her marriage records from the date of the first incorporation of the various towns to the present time;[1221] and Maine has provided for the collection and publication of the records of births, deaths, and marriages.[1222] Vermont by an act of 1898 requires the secretary of the state board of health to prepare and furnish the town and city clerks blank forms to be used as books of records of "births, marriages, divorces, and deaths." Return is to be made by the local officers, from which every second year the secretary of the state board of health is to publish a report.[1223]

II. THE SOUTHERN AND SOUTHWESTERN STATES[1224]

Throughout this period in the South matrimonial legislation has moved more slowly than in New England and the West, but toward the same goal. Sentiment has been more conservative regarding innovation; and in general equal progress has not been made in remodeling and improving the details of administration or the safeguards of marriage law. Originally, as elsewhere shown,[1225] the English ecclesiastical forms were established in Virginia and nominally, in a varying degree, in the neighboring colonies. Dissenters were illiberally, often tyrannically, treated; and to satisfy their consciences in this regard they were compelled to take the law into their own hands. Still, at the Revolution, it was apparent that the American type of matrimonial legislation, as in its essential features already existing in New England, must eventually triumph in the South.

a) Solemnization.—Old ideas were especially tenacious in Virginia. For the first time, in 1780, as already suggested,[1226] the monopoly of the Anglican clergy was restricted through legislation. By the statute of that year, for the purpose of "encouraging marriages" and "removing doubts concerning the validity" of those heretofore celebrated by dissenting clergymen, not only are all such marriages declared "good and valid in law," but for the future ministers of "any society or congregation of Christians," as well as the Quakers and Menonists, are permitted to conduct the celebration according to their own rules and usages. License and banns are dispensed with in the case of Menonists and Quakers,[1227] but the act limits the number of dissenting ministers who may take advantage of its provisions. On recommendation of the "elders of the several religious sects," the court of each county is authorized to license not more than four ministers of each dissenting society to solemnize marriages; and the licenses are to be "signed by the judge or elder magistrate under his hand and seal."[1228] Four years later a new marriage act appears, by which the ordained ministers of all societies of Christians are placed on the same level. The provision for licensing a limited number is not retained. Any minister may celebrate marriages of "any persons" within the state, provided he first produce to the court of the county or borough in which he resides credentials of his ordination, and also of his being in regular communion with the society of which he is reputed a member, take the oath of allegiance to the commonwealth, and enter into bond, with two or more sufficient securities, in the sum of five hundred pounds current money for the true and legal performance of his trust. A "testimonial" is then issued to him by the court.[1229] "Itinerant" ministers, however, are not entitled to a testimonial. If any minister shall voluntarily decline, or be ejected from, his office, or "if any of his securities shall give him notice in writing that they desire to be released from their suretyship, in either of these cases," should he refuse or neglect "to give up his testimonials to the court from which they were obtained, any one of his securities, without instituting a suit, may proceed against him as if they were his special bail in an action of debt until he is thereunto compelled or gives them sufficient caution for their indemnification."[1230] By this act also irregular marriages already contracted are made valid. Its provisions regarding solemnization are retained in the elaborate statute of 1792.[1231]

Thus far the religious ceremony only had been acknowledged by law. A step toward civil marriage was taken in 1783. It is recited that, since "it hath been represented ... that many of the good people in the remote parts of this commonwealth are destitute of any persons, authorized by law, to solemnize marriages," therefore when it shall seem necessary, in the scarcity of clergymen, the court of any county "on the western waters" is empowered "to nominate so many sober and discreet laymen as will supply the deficiency." It is noticeable that such layman, "upon taking the oath of allegiance" to the state, is to receive a license to celebrate the rites of matrimony "according to the forms and customs of the church of which he is reputed a member." It appears from this statute that magistrates in such places had already been in the habit of celebrating marriages; and these marriages are now legalized.[1232] In consequence of the scarcity of ministers, persons desiring to be married were sometimes compelled to travel long distances across the mountains, exposed to danger from the Indians. Hence in 1794 the courts of Lee and Randolph counties were authorized to nominate two resident laymen in each to perform the ceremony within the county where they respectively resided. These commissioners[1233] were to take an oath of fidelity to the commonwealth; and each was to "enter into bond for sufficient security in the sum of fifteen hundred dollars" for the "true and faithful performance of his trust." This act differs from that of 1783 in being silent as to the use of the religious ceremony; and so marks a step in advance toward full civil marriage.[1234]

The foundation of the law of Virginia regarding the marriage celebration, both civil and religious, as it still exists, was thus laid more than a hundred years ago. A few changes, most of them of minor importance, have been made in later years. From time to time, by special law, the benefits of the act of 1794 were extended to other counties;[1235] and in 1830 this plan was adopted for the whole state. The court of every county which should suffer "inconvenience" through lack of ministers was then authorized to name one or two persons to solemnize matrimony, on condition of giving satisfactory bond, as required by earlier statutes.[1236] As the law now stands, "the court of every county which deems it expedient, may appoint one or more persons resident in such county to celebrate the rites of marriage within the same, or a particular district thereof, and upon any person so appointed giving such a bond as is required of an ordained minister, may make a like order" empowering him to act. But the court may rescind this order at pleasure.[1237] It appears, therefore, contrary to the usual custom, that in Virginia the justice of the peace as such has no authority to perform the marriage ceremony. Regarding the religious celebration, the law remains very nearly as it was in 1784, except in one or two important provisions. At least since 1819 Jews have enjoyed the right of using their own marriage rites;[1238] while already in 1812 ordained ministers in regular standing with any society of Christians, residing in any adjacent state, were authorized to solemnize wedlock in Virginia on filing credentials and giving bond in the court of the county where the marriage takes place, the oath of allegiance not being required.[1239] The law was further liberalized in 1831. Any ordained minister in regular communion, as before, "who by the government and discipline of the church of which he is a member, has been assigned to a circuit, station, or district for the period of one year at the least," is allowed, on the same conditions as other ministers, to obtain a "testimonial" from any county or corporation court within such area authorizing him to perform the marriage rites.[1240] With these changes the law of Virginia is complete, except that it is couched in more general phrase. "When a minister of any religious denomination shall, before the court of any county or corporation in this state, produce proof of his ordination, and of his being in regular communion with the religious society of which he is reputed a member, and give bond in the penalty of five hundred dollars, such court may make an order authorizing him to celebrate the rites of marriage." No ceremony is prescribed; but each religious body, though having no minister, may use its own forms.[1241]

West Virginia, made a separate state in 1863 by dismemberment of the Old Dominion, has taken a much more conservative course. In 1868 "any minister of the gospel," on presenting the credentials of his ordination and of being in regular communion, according to the plan of the mother-commonwealth, is authorized to "celebrate the rites of marriage in all the counties of the state;" and no person other than a minister who has thus "complied" with the law shall hereafter be permitted to perform the ceremony.[1242] No provision whatever is made for the lay celebration. This reactionary policy was, however, temporarily abandoned in 1873. By a statute of that year the minister, otherwise to be qualified as under the act of 1868, is required in addition to give bond in the sum of fifteen hundred dollars; and each county court, as in Virginia, is authorized to appoint one or more laymen with power to solemnize wedlock.[1243] For four years the lawmaker staid his hand; but in 1877 the illiberal principle of the act of 1868 was again enforced.[1244] So to the present hour only the religious celebration, either by a clergyman or by the usages of a society having no officiating minister, is legal in West Virginia. The lay ceremony is not recognized there by statute.[1245]

It is less surprising that Kentucky, whose territory until the admission of the state to the Union in 1792 was embraced in the jurisdiction of Virginia, should have retained the matrimonial law of the parent commonwealth. As regards solemnization, the act of 1798 in its substance is almost identical with the statutes of Virginia before that of 1794 appeared. It contains like provisions with respect to bond, credentials, testimonial, and oath of allegiance on the part of the minister; and Quakers, Menonists, and all societies of Christians are allowed to use their own rites.[1246] In the next year the county courts of the state are authorized each to license one or more of their own magistrates to solemnize marriages, "where there shall not be a sufficient number of ministers of the gospel" for the purpose.[1247] By the present law, which in all essential respects is identical with the act of 1851, marriages may be celebrated either by ministers of the gospel or priests of any denomination, in regular communion with a religious society; by judges of the county courts, and such justices of the peace as the county courts may authorize; or according to the usage of any religious society to which either person may belong.[1248]

In Maryland no progress has been made regarding the marriage celebration since the Revolution. Ministers and priests still have a monopoly of the matrimonial business, as under the illiberal act of 1777, whose provisions have already been summarized.[1249] Quakers are still allowed their own rites; but, as in West Virginia, the lay celebration is not authorized by the statute.[1250] Until 1896, with slight modification, the marriage law of Maryland was in force in the District of Columbia. By a statute of that year the ceremony may be performed in the District by any justice of the peace; any judge of a court of record; or by any ordained or appointed minister residing anywhere in the United States, if authorized by a justice of the Supreme Court.[1251]

Elsewhere the history of the matrimonial legislation of North Carolina has been traced to the act of 1766, the last statute adopted before the Revolution. The Quakers had practiced their own rites throughout the colonial era. By the act just mentioned the Presbyterians had been granted the same privilege, but on humiliating terms. With these exceptions, the clergy of the English church enjoyed a monopoly of the marriage celebration; for no other dissenting body save the Presbyterians was recognized by the law. All this was changed in 1778, after the establishment had been swept away. The "regular ministers of every denomination, having the cure of souls," and all justices of the peace in the state, are authorized to solemnize marriages; while the Quakers are to enjoy their ancient privileges.[1252] So the law remains at the present time.[1253]

Throughout the century the statutes of Tennessee governing the celebration of wedlock have been practically the same as those of North Carolina, the parent commonwealth, to whose jurisdiction the territory belonged until 1796.[1254] At present "all regular ministers of the gospel of every denomination, and Jewish rabbis, having the cure of souls, and all justices of the peace, judges, and chancellors in the state," as well as the governor and the speakers of the senate and house, are authorized to celebrate marriages.[1255] No special ceremony is prescribed.

During the period under review South Carolina, like Pennsylvania, has made no legislative provision for the marriage celebration. The same usage prevails since the Revolution as before, except that in the colonial period usage prevailed in spite of the statutes. What Brevard said in 1814 is still true. "It is customary in this state," he declares, "to celebrate or publish the matrimonial contract, by or before a minister of the gospel—of any sect, and without regard to any particular form or ceremony—or by or before a justice of the peace, or other lawful civil magistrate."[1256]

The optional civil or religious celebration before a minister or justice, existing by custom in Georgia from the foundation of the colony, was recognized by the act of 1785—the first legislation on the subject of matrimony after the organization of the state.[1257] A few changes in details have brought the law into harmony with the prevailing practice of the country.[1258] At present marriages may be solemnized by any judge, justice of the peace, minister of the gospel, Jewish minister, "or other person of any religious society or sect" authorized by its rules to perform the ceremony.[1259] By a unique provision "colored ministers of the gospel, or ministers of the gospel of African descent," are allowed to celebrate marriages "between freedmen and freedwomen, or persons of African descent, only."[1260]

In all the other states and territories of the South and Southwest the optional religious or civil celebration before a minister or judicial officer has been sanctioned by statute from the beginning. Such is the case in Florida, Arkansas, Indian Territory, Arizona, New Mexico, and Oklahoma; as also in Alabama, Mississippi,[1261] and Missouri, where in each case the typical optional plan was adopted under the territorial legislation of 1805.[1262]

The laws of Louisiana have always shown ample evidence of their Latin origin. This is especially true of those governing marriage, divorce, and the family; except that the celebration was determined by statute, and was therefore soon brought into harmony with the practice prevailing in the southwestern states, the contemporary Virginia plan being at first adopted as a model. The vast region bearing the name of Louisiana was acquired from France in 1803. For the purpose of government it was presently divided into two parts, lying respectively north and south of the thirty-third parallel. The northern portion, called the "District of Louisiana," for law and administration was attached to Indiana Territory, while the southern portion, called the "Territory of Orleans"—having about fifty thousand inhabitants, French, Spanish, and English—in 1804 was provided with a separate government in which the lawmaking power was vested in a legislative council appointed by the president of the United States. In the next year this council was superseded by a representative assembly similar to that existing in the Mississippi Territory;[1263] and at the same time the northern region, under the new name of the Territory of Louisiana, was given a centralized government in which the legislative authority was in the hands of the governor and three judges holding by presidential appointment.[1264] A Digest of the Civil Laws now in force in the Territory of Orleans was later prepared. This contains minute provisions relating to marriage and divorce; but declares that, "besides the preceding general rules, there are divers formalities to be fulfilled for the publication and celebration of marriages, which are established by a special act of the legislature."[1265] But "such marriages only are recognized by law as are contracted and solemnized according to the rules which it prescribes."[1266]

On February 24, 1807, all contracts hitherto solemnized by the judge of any county, a justice of the peace, minister of the gospel, or by any person legally discharging the duties of commandant, are validated so far as relates to the ceremony and the authority of the person officiating, provided they are in other respects according to law.[1267] On April 6 of the same year appears a very elaborate statute—the "special act of the legislature" above mentioned—which in many of its provisions still constitutes the matrimonial law of Louisiana.[1268] By this act "any priest or minister of the gospel, regularly ordained or admitted into any religious society, may obtain a licence to celebrate marriages within this territory." For this purpose he must produce the usual credentials "to the judge of the parish within which his domicile is situated, take the oath of allegiance, and the oath of affirmation to support the constitution of the United States, and give bond with security in the sum of two thousand dollars, for the faithful performance of his trust." Quakers and Menonists are allowed the use of their own rites; and "when any parish judge shall think that there is not a sufficient number" of qualified priests or ministers, he may grant licenses to justices of the peace to "celebrate marriages in the parish in which they reside," on their giving a legal bond. All marriages must be celebrated in the parish where one of the persons has his domicile and in the presence of three witnesses.[1269]

The provisions of the act of 1807 requiring clergymen to procure license and give bond were repealed two years later.[1270] In 1820 marriages irregularly celebrated by the parish justices were validated; and these magistrates were in future given power to act.[1271] The law regarding the religious ceremony was made more flexible in 1826. "If there be no priest or minister of a religious sect domiciled in any one of the parishes of this state," it was then enacted, "the judge of that parish, if required by either of the parties, is authorized to send to any priest or minister residing in a neighboring parish a commission to come and celebrate marriages in the parish" where the judge has his jurisdiction.[1272] "Regularly commissioned notaries of the state" for the parish of West Feliciana were authorized to act in 1850.[1273] As the law now stands, the ceremony may be performed by these notaries; by justices of the peace and parish judges, within their respective parishes; by judges of the district courts; and by any minister or priest, "whether a citizen of the United States or not."[1274]

The first matrimonial legislation of Texas coincides with the earliest experiment in organized rule by settlers from the United States in that Mexican province. By an ordinance of January 16, 1836, adopted by the provisional government, all "judges, alcades, commissarios, and regularly accredited ministers of the gospel of whatever denomination," are given "power to celebrate the rites of matrimony in their respective municipalities, which shall be done in the presence of not less than three disinterested witnesses." Certificates are to be made by the person officiating, attested by one or more witnesses, one of which is to be "given to the bride, and the other filed with the archives of the municipality." Marriages hitherto "celebrated by bond or otherwise, under the heretofore existing laws," are declared valid; "provided that all officers who have attended to the same, shall on application of either party, or the friend of either party, file the bond or other evidence of such marriages with the archives and records of their respective municipalities." This must be done in ten days after the application, under penalty of one hundred dollars to the injured person, and the same fine from time to time every ten days till the papers are filed.[1275]

The "Republic of Texas" was soon after set up by the settlers; and one of its first legislative measures was a general marriage law. "Whereas," runs this noteworthy act, which reveals the embarrassments of American pioneer life, "in many parts of Texas no person legally authorized to celebrate the rites of matrimony has existed; and whereas, from that cause many persons have resorted to the practice of marrying by bond, and others have been married by various officers of justice not authorized" to do so; "and whereas, public policy and the interests of families require some legislative action on the subject:" therefore it is enacted that "all persons who have so intermarried" are authorized to go before any of the persons provided for in this act, "and publicly solemnize the rites of matrimony; and all marriages so solemnized are ... declared of legal and binding effect, from the period the persons had previously intermarried agreeably to the custom of the times," and their issue is made legitimate. But the benefits of the act are conditioned on there being no legal bar to the marriage, and on celebration within six months from its passage.[1276] For the future, all ordained ministers, judges of the district courts, justices of the county courts, and all justices of the peace of the several counties of the republic may perform the marriage ceremony.[1277] The present law of the state is identical with the statute of the republic just cited, except that Jewish rabbis are also expressly empowered to join persons in wedlock.[1278]

In only three instances, among the twenty-one commonwealths and territories under discussion, are witnesses required by statute at the celebration; although in Maryland, in the case of Quaker weddings, the contracting parties are to sign a "certificate to the effect that they have agreed to take each other for husband and wife," which certificate must be attested by twelve persons present, and within sixty days entered in the records of the society to which one of them belongs, or else in some court in the county or city where the marriage takes place.[1279] But in Louisiana, by the act of 1807, all contracts are to be solemnized "in the presence of at least three witnesses, each of whom shall have attained the age of majority;"[1280] and this provision is still retained in the law.[1281] At least two adult competent witnesses are required in Oklahoma; and the same number in Porto Rico.[1282]

Nowhere is any form of words prescribed for a legal celebration,[1283] although in several cases the ceremony is negatively mentioned. Thus, in Tennessee, it is expressly stated that no formula is requisite, except that the parties "shall respectively declare, in the presence of the minister or officer, that they accept each other as man and wife."[1284] The Oklahoma law requires marriage to be "contracted by a formal ceremony" in the presence of two witnesses.[1285] The consent of persons "who may be lawfully married," declares the North Carolina statute, "presently to take each other as husband and wife, freely, seriously, and plainly expressed by each in the presence of the other and in the presence" of a minister or justice, and the consequent declaration by him that they "are man and wife, shall be a valid and sufficient marriage."[1286] By the law of Arkansas and Indian Territory a marriage may be solemnized by a clergyman according to the forms and customs of his society; or by a civil officer in such a way as he "shall deem most appropriate."[1287] Mississippi has adopted a similar provision.[1288] In Arizona, by an act of 1887, "all persons who at any time heretofore have lived together as husband and wife, and who shall continue to live together" for one year after this law takes effect, or until one of the parties shall die, if within the year, "shall be considered as having been lawfully married and their children legitimate."[1289] Two years later the Arizona legislature produced the following extraordinary "blanket" provision. It is most generously enacted that "every ceremony of marriage or in the nature of a marriage ceremony of any kind, in this Territory, whether either or both or more of the parties to such ceremony be lawfully competent to be the subjects of such marriage or ceremony or not, shall be certified by a certificate stating the fact and nature of such ceremony, the full name of each of the parties concerned, and the full name of every officer, priest, minister, and person by whatever style or designation called or known, in any way taking part in the performance of such ceremony, which certificate shall be drawn up and signed by the parties to such ceremony and by every officer, priest, minister, and person taking part" therein, and be filed for record within twenty days.[1290]

The usual penalties are generally prescribed for unauthorized solemnization.[1291] In most cases a marriage is not expressly declared void for neglect of legal formalities; but the Mississippi statute makes a license essential to a valid contract;[1292] while, on the other hand, in Tennessee the validity of a marriage is not affected by the omission of the baptismal name of either person in the license and the use of a nickname instead, if the parties can be identified and have cohabited as man and wife.[1293] Furthermore, it is provided in Virginia, West Virginia, Kentucky, and Georgia that celebration before an unauthorized person professing to have legal power shall not invalidate a contract entered into in good faith by the parties.[1294] Marriages valid at common law are still good in Florida.[1295] It is curious to find the statute of 32 Henry VIII., chap. 38, for marriages to stand notwithstanding pre-contracts—repealed for England under Edward VI.—kept in full force by the laws of South Carolina at least until 1873, and in those of Kentucky for some years after the beginning of the century.[1296]

After the Civil War the South found itself confronted by a very serious problem—that of the social and legal status of several millions of freedmen. The unions of slave men and women had existed, of course, only at the will of the master. They had no legal force at all. It became necessary, therefore, to determine and to recognize the marriages of the newly enfranchised negro population. For this purpose in many of the southern states special statutes were enacted. In Virginia it was provided that when colored persons prior to February 27, 1866, agreed to occupy the relation of husband and wife, and were then cohabiting as such, "whether the rites of matrimony had been celebrated or not," they shall be deemed husband and wife; and all their children shall be legitimate, whether born before or after that date; as were also the children of such parents who had then ceased living together.[1297] Similar laws were passed in West Virginia, Tennessee, South Carolina, Texas, Florida, and Arkansas.[1298] There is a like provision for the District of Columbia.[1299] By the Maryland act all reputed marriages of colored persons before March 22, 1867, are validated, if the parties establish before a justice of the peace the fact of the marriage, of which then a certificate is directed to be placed on record.[1300] The Georgia law is unique. Persons of color living together as husband and wife, March 9, 1866, are to sustain that legal relation to each other, unless a man then had two or more reputed wives, or a woman two or more reputed husbands. In such event the man shall immediately select one of his reputed wives, with her consent, or the woman one of her reputed husbands, with his consent; and the ceremony of marriage between these two shall be performed, under severe penalty for refusal.[1301]

b) Forbidden degrees: void and voidable marriages.—Everywhere in the region under discussion, except perhaps in Louisiana, according to the spirit, if not by the letter, of the laws, marriage appears as a relation of status as well as of contract. Only in a few instances, however, is it actually defined or are its requirements formally laid down. Thus, in Arkansas, Indian Territory, Oklahoma, Missouri, and New Mexico it is a civil contract to which the consent of parties capable in law of contracting is necessary.[1302] The same in substance is true of the statute of Louisiana, whose rhetorical Gallic phrases have not been essentially changed since 1807. "The law considers marriage in no other view than as a civil contract.... Such marriages only are recognized by law as are contracted and solemnized according to the rules which it prescribes." Since they are thus considered by the law merely as civil contracts, "it sanctions all those marriages where the parties, at the time of making them, were (1) willing to contract; (2) able to contract; (3) did contract pursuant to the forms and solemnities prescribed.... No marriage is valid to which the parties have not freely consented; consent is not free, (1) when given to a ravisher, unless it has been given by the party ravished, after she has been restored to the enjoyment of liberty; (2) when it has been extorted by violence; (3) when there is a mistake respecting the person whom one of the parties intended to marry."[1303] By the Porto Rico code "marriage is a civil institution, originating in a civil contract whereby a man and a woman mutually agree to become husband and wife and to discharge toward each other the duties imposed by law. It is valid only when contracted and solemnized in accordance with provisions of law."[1304] In Georgia, "to constitute a valid marriage ... there must be (1) parties able to contract; (2) an actual contract; (3) consummation according to law." To constitute an actual contract "the parties must be consenting thereto voluntarily, and without any fraud practiced upon either. Drunkenness at the time of marriage, brought about by art or contrivance to induce consent," is held to be a fraud.[1305]

The age of consent to marriage is prescribed in fifteen of these states and territories; and, as in other parts of the country, it is often far too low, particularly in the case of girls. For males it is eighteen in Arizona, New Mexico, Oklahoma, Porto Rico, and West Virginia; seventeen in Alabama, Arkansas, Indian Territory, and Georgia; sixteen in North Carolina, Texas, and the District of Columbia; and fourteen in Kentucky, Louisiana, and Virginia. For females it is sixteen in Arizona, Porto Rico, and West Virginia; fifteen in New Mexico and Oklahoma; fourteen in Alabama, Arkansas, Indian Territory, Georgia, North Carolina, Texas, and the District of Columbia; and only twelve in Kentucky, Louisiana, and Virginia.[1306]

Eighteen commonwealths of the group and the District of Columbia have fixed, for both sexes, the age below which the consent of parent or guardian is necessary to a legal contract. For males it is twenty-one in Alabama, Arizona, Arkansas, Florida, Indian Territory, Oklahoma, Kentucky, Louisiana, Maryland, Mississippi, Missouri, New Mexico, Porto Rico, Texas, Virginia, West Virginia, and the District of Columbia; eighteen in North Carolina; and but sixteen in Tennessee.[1307]

For females, it is twenty-one in Florida, Kentucky, Louisiana, Porto Rico, Virginia, and West Virginia; eighteen in Alabama, Arkansas, Indian Territory, Mississippi, Missouri, New Mexico, North Carolina, Oklahoma, and Texas; and only sixteen in Arizona, Maryland, Tennessee, and the District of Columbia.[1308] The age for females is eighteen in Georgia; but by the statutes of that state parental consent does not seem to be required for male minors, nor for females when publication is by banns.[1309] In effect, the same appears to be the case in South Carolina, since a penalty is affixed for marrying a female under sixteen without parental consent; while for male minors such consent is not prescribed.[1310] But in Alabama, Florida, Maryland, Virginia, West Virginia, and the District of Columbia, it should be noted, parental consent is not required, if the minor has been previously married. In several cases the statutes contain important special provisions regarding the marriage of minors which modify the general rule laid down as to age and parental consent. By the law of Alabama, before the issuance of a license for the marriage of persons under the ages of twenty-one and eighteen respectively, the judge of probate, in addition to parental consent, "must also require a bond to be executed in the penal sum of two hundred dollars," payable to the state, "with condition to be void if there is no lawful cause why such marriage should not be celebrated."[1311] In Kentucky, if a female under sixteen marry without legal consent, a court in her county having general equity jurisdiction may commit her estate to a receiver, who, under direction of the court, may pay out the profits, after due compensation, to her separate use during infancy. At the age of twenty-one, the estate is to be delivered to her, unless the court thinks fit to continue it longer in the receiver's hands.[1312] Under similar conditions, in West Virginia the county court is empowered, "upon petition of her next friend," to commit the estate of a girl between twelve and fourteen years of age to a receiver, who is to give bond for the faithful performance of his trust.[1313] A Tennessee law of 1899 prohibits the issue of a license to persons under sixteen years, without written consent of parent or guardian.[1314] In Porto Rico marriage under the age of consent "shall, nevertheless, be valid ipso facto and without an express declaration, if one day after having arrived at the legal age of puberty the parties shall have lived together without the representative of either of them having brought suit against its validity, or if the woman shall have conceived before the legal age of puberty or before having established such suit."[1315]

The Romano-French origin of the Louisiana laws is in no way more plainly revealed than in the elaborate provisions regarding the Family Council. This institution is given a prominent place in the regulation of domestic affairs; and, in the United States, it is peculiar to Louisiana. It has always exercised jurisdiction in approving the marriage of minors; and in appointing "tutors" or guardians; while at present its advice may be required in the disposal of children of divorced parents. By the act of 1807 consent of the parents is necessary to the marriage of minors of either sex under twenty-one years of age. In case of disagreement the father's approval is sufficient. If either parent be dead or incapable of consenting, the other is authorized to act, "although he or she may have contracted a second marriage." But if the parents are both dead or incapable, the grandfathers and grandmothers "shall supply their places as to this consent, and in case of difference of opinion, a majority shall prevail;[1316] when they are equally divided in their opinions, the council of the family is invoked to decide." The council is likewise called in when parents and grandparents are all dead; but its decision must be made within one month after it is convoked and consent requested, otherwise the marriage may be celebrated. In all cases, whether by parents, grandparents, or council, approval is to be given or refused in presence of the parish judge. The consent must be drawn up in writing by that officer in presence of two witnesses and the persons consenting; and by all of these, including the magistrate, it must be signed. A certificate of consent is made out in duplicate: one copy being retained by the judge and the other given to the persons whose marriage is thus approved. In case of consent by the council the certificate "shall state the names of those of the family who assembled, their professions and places of residence, and which of them consented," together with "the names of the parties intending to marry."[1317]

The regulation of consent is simplified under the present law, and the patriarchal features have in part disappeared. "The minor of either sex ... must have received the consent of his father and mother or of the survivor of them; and if they are both dead, the consent of his tutor." But the family council, or "meeting" as now called, still has important functions; and its composition and proceedings are carefully prescribed. In all cases the meeting is composed of "at least five relations, or in default of relations, friends of him in whose interests they are called upon to deliberate. These relations or friends must be selected from among those domiciled in the parish in which the meeting is held, or in a neighboring parish," provided it be at a distance of not more than thirty miles. "The relations shall be selected according to their proximity, beginning with the nearest;" and the "relation" shall be preferred to the "connection" of the same degree; while among relations of the same degree the eldest shall be preferred. No person who has "interests conflicting with those of a minor" is competent to serve in the meeting, "although one of the nearest relations." Members of the meeting are appointed by the parish judge: and it must be held "before the recorder of the parish, a justice of the peace, or notary public appointed by the judge for the purpose." A meeting may be called for a fixed hour on three days' notice; and the members are to take oath to give advice according to their best knowledge.[1318]

The laws of the southern and southwestern states regarding the forbidden degrees of lineal and collateral consanguinity are far from uniform in their details; but they are determined by the same general principles as those of New England already considered. Ascendants and descendants are, of course, always included.[1319] In the side lines prohibition does not usually extend to first cousins. But in Arizona, Oklahoma, Indian Territory, Arkansas, Louisiana, and Missouri these may not legally marry;[1320] and this restriction was also maintained in Georgia until 1865.[1321] By the law of Porto Rico collaterals by consanguinity may not marry within the fourth degree; but the court may, for good cause, on petition of an interested person, waive this impediment.[1322] Furthermore, in every place, except in Tennessee, either expressly or by implication, marriage between aunts and nephews or uncles and nieces is forbidden.[1323] With respect to affinity it is not surprising to find still greater conservatism in communities where the influence of the English church had originally been so strong. Marriage with a brother's widow or a deceased wife's sister is forbidden by the Virginia statute of 1788.[1324] The prohibition as to the latter does not seem to have been entirely removed until 1849;[1325] while with regard to the former it lingered until 1860.[1326] In Maryland the law containing these two restrictions and likewise prohibiting marriage with a deceased husband's brother or a deceased sister's husband was repealed as early as 1790.[1327] A statute of Louisiana, in 1827, declares that, since the new civil code (1825) had abolished impediments on account of affinity existing "under the Spanish laws," and because even before the promulgation of that code "some doubts were entertained whether the Spanish laws on this subject were still in force," therefore to prevent litigation "all marriages between brothers-in-law and sisters-in-law contracted before the code went into effect shall be held valid."[1328] The law of Georgia which for many years forbade wedlock with a sister-in-law or a brother-in-law seems also to have been abrogated.[1329] Finally it may be noted that by the rule still existing in Alabama and Mississippi marriage with a step-mother or a step-father is prohibited; and the same is true of Georgia, Kentucky, Maryland, South Carolina, Tennessee, Texas, Virginia, West Virginia, and the District of Columbia, where, in addition, one is not permitted to contract matrimony with a father-in-law or a mother-in-law.

According to the rule generally prevailing marriage within the forbidden degrees is void or voidable;[1330] the children are often declared illegitimate, either absolutely or when born after annulment; and severe penalties are imposed for violation of the law.[1331] Likewise, as elsewhere in the country, marriages are declared void or voidable for a variety of reasons other than the forbidden degrees. Here the greatest confusion and uncertainty exist; and there is most urgent need of a strong effort to bring the laws of the different states into harmony in this regard. The evil is aggravated through the fact that transgressions which render a contract invalid in one state may in a neighboring community merely subject the offender to fine or imprisonment. Thus in Virginia, West Virginia, and apparently also in Georgia a marriage is void or voidable when celebrated out of the state by residents who seek to avoid the requirements of their own law.[1332] In Maryland under like conditions a fine is imposed[1333] and in the District of Columbia such a marriage is illegal and may be declared void.[1334] On the other hand, in Kentucky, when persons there resident "shall marry in another state, such marriages shall be valid ... if valid ... where solemnized."[1335] The statutes of the other fifteen states and territories, except when the motive is union within the forbidden degrees,[1336] appear to be entirely silent on the subject of clandestine marriage.

Bigamous marriages are invalid in Florida, Georgia, Kentucky, Louisiana, Maryland, District of Columbia, Mississippi, Missouri, North Carolina, South Carolina, Tennessee, Virginia, and West Virginia; but in Alabama, Arizona, Arkansas, Indian Territory, and Texas they are only prohibited or made punishable; while the legislature of New Mexico attaches a penalty for the offense of two to seven years in the penitentiary.[1337] Marriages obtained by fraud or by force, menace, or duress are dealt with in a similar spirit. They are prohibited or punishable in Alabama, Arizona, Mississippi, Missouri, Tennessee, and Texas;[1338] void or voidable in District of Columbia, Arkansas, Indian Territory, Georgia, Kentucky, and Louisiana;[1339] fraudulent contract is a ground of divorce in Oklahoma; while the statutes of the remaining states are either entirely silent, as in the case of Florida, Maryland, New Mexico, Virginia, and West Virginia; or such marriages are void at common law where no statute exists; or under general statutory provisions, as seems to be the case in North Carolina and South Carolina.[1340] Various other grounds for invalidating a marriage are here and there assigned. Such is lack of understanding, in North Carolina and Oklahoma; idiocy, in District of Columbia, Kentucky, and South Carolina; lunacy, insanity, or an unsound mind, in the two states last named, and also in Georgia, Virginia, West Virginia, and the District of Columbia; want of legal age of consent, in Alabama, Arkansas, Georgia, Kentucky, New Mexico, North Carolina, Oklahoma, Texas, and West Virginia; want of physical competence, in Arizona, Arkansas, Indian Territory, Georgia, North Carolina, Texas, Virginia, and West Virginia;[1341] or lack of proper solemnization, in Kentucky.[1342] But in these states as elsewhere, it must be remembered, the statutes are supplemented by the common law.

Very naturally, in the region where slavery existed before the Civil War a horror of intermarriage between whites and blacks is everywhere evinced by the statute-maker. Accordingly, every state and territory in the group under examination—except New Mexico, Porto Rico, and the District of Columbia—has enacted rigorous laws to prevent miscegenation. In Alabama and Tennessee such marriages are prohibited "to the third generation" under severe penalties;[1343] in all the other states they are declared void or voidable, and usually the issue is absolutely illegitimate. Unfortunately, the statutes on this subject show a deplorable lack of uniformity. They are divergent in their most important provisions. Their language is not always clear, and even when it is technically exact, the occasional use of vulgar fractions to designate the degree of African blood interdicted must often put its certain interpretation far beyond the people whom it most vitally concerns. Thus in Arkansas, Indian Territory, and Kentucky[1344] marriage is void between a white person and a negro or mulatto; in Georgia[1345] it is so between a white person and a person of African descent; in Louisiana and Virginia, between white persons and persons of "color;" in West Virginia, between a white person and a negro; in Oklahoma, between persons of the white race and those of the negro race; in South Carolina, between a white person and an Indian, negro, mulatto, mestizo, or half-breed; in Florida between a white person and a colored person; in Maryland between a white person and a negro or a person of negro descent to the third generation inclusive; in North Carolina the interdiction is the same, except that Indians are included;[1346] in Texas the prohibition is between persons of European blood and Africans or their descendants. Elsewhere the lawmaker resorts to arithmetic. Marriage is void in Mississippi[1347] between a white person and a person having one-eighth or more negro or Mongolian blood; and in Missouri, where the negro blood amounts to one-eighth or more. Arizona, like Mississippi, objects strongly to the union of whites and Chinese; so a marriage is declared void between persons of "Caucasian" blood and Africans or "Mongolians," or with their descendants.[1348]

But numerous and varied as are the legal restrictions put upon marriage in the southern and southwestern states, one regrets to discover that not even a beginning has yet been made in the effort to thus check the increase of paupers and vagrants, or to prevent the hereditary transmission of tendencies to vice, crime, or incurable disease.

In many cases indirect encouragement of matrimony is given in the usual way through legitimation of children or the suspension of penalty or prosecution.[1349] Since 1856 the Statutes of New Mexico, in this connection, contain a somewhat novel clause. It is "provided that when any persons are found living together publicly as if they were married, they shall be required immediately to contract marriage, if there is no impediment to prevent their so doing; and if they do not marry upon the first requirement of any justice, they shall, upon accusation, be fined not less than twenty-five nor more than eighty dollars for every time they shall be so found."[1350] West Virginia favors wedlock in a different way. Not only may either person bring suit, in the manner very commonly prescribed, to annul or validate a doubtful marriage; but in that event and "in every other case where the validity of a marriage is called in question, it shall be presumed that the marriage is valid, unless the contrary be clearly proven."[1351] Georgia, however, is the only state which offers direct encouragement. It is formally announced that "marriage is encouraged by the law, and every effort to restrain or discourage" it by "contract, condition, limitation, or otherwise is invalid and void." Still, "prohibiting marriage to a particular person or persons, or before a certain seasonable age, or other prudential provision looking only to the interest of the person to be benefitted, and not in general restraint" of matrimony, will be allowed.[1352]

c) Certificate and record.—In the region whose laws are under examination license from a county officer is now in most cases essential before a marriage may be legally solemnized. But originally in the older commonwealths there existed a dual system of optional civil license or ecclesiastical banns, which may be contrasted with the somewhat different system by banns or posting so long preserved in the New England states. Indeed, in at least two instances it still survives.

By the first legislation of Virginia after the Revolution the provisions of the act of 1748 on this subject are retained.[1353] In 1780 it is provided that "no persons, except the people called Quakers and Menonists, shall hereafter be joined together as man and wife without lawful license first had, or thrice publication of banns in the respective parishes, or congregations," where such persons "severally" reside. Within three months a "certificate of solemnization" is to be filed with the clerk of the county where the marriage takes place. The fee for performing the ceremony is fixed at "twenty-five pounds of tobacco, and no more, to be paid in current money at the rate which shall be settled by the grand jury."[1354] Under the elaborate statute of 1792 a license, or oral banns in case of members of the Protestant Episcopal church, is still requisite. On submitting an approved bond in the sum of one hundred and fifty dollars, license may be obtained from the clerk of the court of the county where the woman "usually resides." When either person is under twenty-one years of age, consent of parent or guardian, written or oral, is necessary before license may be issued. If written, the consent must be attested by two witnesses, one of whom, appearing in person, is to swear that the signature was made in his presence. Within twelve months—the time already fixed by the act of 1784—a certificate of the marriage must be returned to the clerk of the county or corporation in which it was solemnized.[1355]

Thus, with slight change, the law of Virginia remained for over half a century.[1356] But in 1848 oral banns were abolished and the modern system by civil license only was established.[1357]

In North Carolina a dual system of banns and license, similar to that of Virginia, was authorized by the act of 1778; and it did not yield to the modern plan until 1872, when banns were abolished and bond for license was no longer required.[1358] Tennessee retained the system of the parent commonwealth, North Carolina, until, far down in the century, it gave way to the typical American plan.[1359] Kentucky does not seem to have followed the example of Virginia; but civil license in all cases was there required from the origin of the state.[1360] In Missouri, on the other hand, in 1805 a triple optional system of banns, posting, or license was established by the governor and judges of Indiana Territory. Notice of intention to marry is to be published for fifteen days at least, either orally on "three several Sundays, holy days, or other days of public worship, in the meeting in the towns where the parties respectively belong;" or by affixing a written notice signed by one of the judges or a justice of the peace in some public place where the persons respectively dwell. Otherwise a license under the governor's hand and seal, authorizing celebration without publication, must be obtained. By this law persons solemnizing marriages are to keep a record; and within three months, in each case, they are required to make a return to the registrar of the district.[1361] Banns, however, do not seem ever to have been recognized after Missouri was admitted to the Union. The act of 1825 is entirely silent as to both banns and license. In place thereof it is provided that the marriage of a minor may not be celebrated unless parent or guardian be present and give consent; or else a written certificate of assent must be produced under the hand of such parent, guardian, or other person having legal control, attested by the oath or affirmation of a witness of full age.[1362]

Maryland still clings to the system of license or ecclesiastical banns substantially as it appears in the act of 1777.[1363] The same was formerly true of the District of Columbia, where the statute of Maryland was in force until 1896,[1364] Georgia has been equally conservative. By the law of 1785 a magistrate or a clergyman may solemnize matrimony after eight days' "public notice" or on receiving a license from "his honor the governor, or register of probates."[1365] This plan lasted only until 1799, when license or thrice publication of banns, in the usual way, was substituted.[1366] So the law remained[1367] until 1860, when a reactionary step was taken. In December of that year an act was passed by the legislature, to take effect January I, 1862, containing a paragraph which made either license or ecclesiastical banns essential to a valid marriage. However, on the repeal of this paragraph in 1863, the old optional system by banns or license, without declaring either essential to a valid contract, was restored; and it has persisted to the present time.[1368]

The peculiar procedure observed in Louisiana with respect to parental consent or the consent of the family council, in the case of the marriage of minors, has already been described in the preceding section. The act of 1807 contains also a general provision for notice and license. Persons applying for license must satisfy the parish judge, by two witnesses if necessary, that they are twenty-one years of age; and the proof must be registered. The intentions of the persons are then to be published by the judge through "posting up a notice at the door of the nearest church, [or] at the door of the court-house of the parish, announcing a day on which a license would issue, unless opposition should be made." If no objection be raised within fifteen days, the license may be issued, provided the intended husband execute a bond, with sufficient security, "in a sum proportioned to his fortune, at the discretion of the judge," that there is no legal impediment to the marriage. But there is an important exception to the general rule. In "certain cases," if minors are not concerned, "the judge may dispense with the above mode of publishing marriages, by his special license to that effect, and under his own responsibility." Minors must apply to the judge of the parish in which one of the persons has his domicile. The application is then published, and "if no opposition be made, the license shall be granted as directed in the case of persons who have attained the age of twenty-one years."[1369] The wholesome provision requiring notice to be published for a certain period before issuance of the license is no longer in force. Otherwise, though somewhat simplified, the law of Louisiana remains today practically what it was in 1807. License is always requisite; it must be issued by the proper officer in the parish where either the bride or groom is domiciled; and the provision for the bond is expressed in exactly the same words as of old, except that the duration of the security is limited to two years. In the parish of Orleans licenses are granted by the board of health and judges of the city courts; in the other parishes of the state, by the clerks of the district courts, or by the district judge when the clerk is himself a "party to the marriage."[1370]

The general features of matrimonial administration in the entire group of states may now be presented in rapid outline. Everywhere, except in Georgia and Maryland, as already explained, and in New Mexico and South Carolina, which have no legislation on the subject, license in every case is required. The present law of Virginia does not differ materially from that of earlier years. The marriage license is issued by the clerk of the court of the county or corporation in which the woman usually resides. If the office of clerk be vacant, then the judge of the county court or the mayor of the corporation may act, making return to the clerk "as soon as there may be one." Before license is granted for the marriage of a minor, there is requisite the consent of the father or guardian, or, if none, of the mother, given personally or in writing subscribed by a witness who must swear that the writing was signed in his presence. Similar functions are performed by the clerk of the county court in West Virginia,[1371] Tennessee,[1372] and Arkansas; the clerk of the circuit court, in Maryland, Texas, and Mississippi; the county register or recorder of deeds, in North Carolina and Missouri; the county ordinary or his deputy, in Georgia; the county judge, in Florida; the county judge of probate, in Alabama and Oklahoma; the clerk of the probate court, in Arizona; the county clerk, in Kentucky; the clerk of the district court, in Louisiana; the municipal judge, in Porto Rico; and by the clerk of the supreme court of the District of Columbia.[1373] As in Virginia, license must be obtained from the proper officer of the county where the woman resides, in Alabama, Florida, Mississippi, and West Virginia. The same is true in Georgia, if the woman is "resident in the state;" and in Kentucky, unless she is of full age or a widow, and the license is issued on her personal or written application, when it may be granted by any county clerk. But in Maryland and North Carolina license must be obtained in the county where the marriage is expected to occur; in Tennessee, either in the county in which the bride resides or in that where the marriage is to be solemnized; while in Louisiana, as already seen, it may be issued in the county where either the bride or the groom is domiciled. The statutes of the remaining states appear to have no definite provisions on this subject. The law of Porto Rico is very careful in this regard. "Persons desiring to contract marriage shall first present themselves before the municipal judge of their domicile if they shall have the same domicile," or before that officer in their respective places of abode if they have different domiciles; "and first being duly sworn, shall be examined as to their legal capacities and incapacities to enter into matrimony." They must also sign a sworn declaration of their names, ages, and professions, with those of their parents, which the judge is required to record in his "marriage book." Not until ten days after the examination may the judge issue the license, or refuse it if on proper trial any objection to the marriage is sustained; nor may he issue it in case the persons have different domiciles until the other judge "has forwarded to him a copy of the record made by the other contracting party."[1374] In Arkansas, Indian Territory, Tennessee, and until recently in Mississippi,[1375] a bond in a definite sum, conditioned that the parties may lawfully marry, must be given by the person applying for the license. The same is true for Alabama in the case of minors; and also for Kentucky when the persons are unknown to the clerk. In the other states, if demanded by the official, oath or affidavit usually takes the place of bond. For solemnizing a marriage without proper license presented the offender is very generally subjected to severe penalties.[1376]

In every commonwealth, except South Carolina, Arkansas, and Indian Territory,[1377] it is the duty of the person or society conducting the celebration to make a "return" thereof to the proper official, either in the county where the woman dwells or in that of the marriage.[1378] This report must be submitted within a fixed period, which is one month (or thirty days) in Alabama, Louisiana, and Maryland; two months (or sixty days) in Texas, Virginia, North Carolina, and Arkansas; three months (or ninety days) in Kentucky, Missouri, and Mississippi; six months in Tennessee; twenty days in Arizona; ten days in Florida and the District of Columbia; two days in Porto Rico; while in Oklahoma return must be made "without delay." The return to the clerk may be by a separate certificate, as in Alabama, Virginia,[1379] Mississippi, Porto Rico, and Maryland; or by "endorsement" or "certificate appended," as in North Carolina, Oklahoma, Georgia, Tennessee,[1380] West Virginia, Florida, Texas, and Arizona; or on a "coupon" issued with the license, as in the District of Columbia.[1381] New Mexico requires two reports a year, on the first days of July and January, or a report "at every regular term of the probate court for each county." In the District of Columbia every minister celebrating marriage by license must "annually, in the month of November, return on oath a list of the names of the persons, and the time when married," to the clerk of the supreme court.[1382] Mississippi has provided for bringing delinquents to account. The clerk is directed "to examine the records once a month, and if any ... person be found in default, he shall institute inquiry," at the cost of the culprit, summoning him to make return of the certificate according to law.[1383] Similarly, in Missouri it is enacted that the recorder of deeds "shall certify to the grand jury, at each regular term of the court having criminal jurisdiction within the county, a list of all marriage licenses issued by him," but not returned within the legal period of ninety days; the negligent minister or officer being guilty of a misdemeanor and liable to a fine of from five to twenty-five dollars.[1384] Only in two cases is there provision for report of the marriages of residents celebrated without the state. By the statutes both of Virginia and West Virginia a certificate or statement of such contracts verified by any person present at the ceremony "may be returned" to the clerk of the court of the county where the husband resides, or if he be not a resident, then where the wife dwells; and the usual abstract of it must be recorded by the clerk.[1385]

In a few instances the law directly provides for giving a certificate to the newly wedded pair; although where the law is silent the same may sometimes be done by custom when request is made. Maryland, Porto Rico, Missouri, and the District of Columbia have authorized such a certificate;[1386] and Arkansas has enacted that after the license has been returned to the clerk, and by him duly recorded, he shall at once make out a certificate of such record, attach it to the license, and send it back to the person who presented the same.[1387]

The southern and southwestern states have in general taken far less pains than those of New England to provide by law for a full record of marriages and for collecting, registering, and publishing the important social statistics connected with family life. In fact, there is much less completeness regarding essential details throughout the entire field of matrimonial legislation. New Mexico, Missouri, and Kentucky appear to be the only states or territories which require every person solemnizing marriages to keep a record; although the Quakers of Maryland, as already seen, must enter the contracts by them solemnized in their own records, or in the records of some court, city, or county where the wedding occurs; and both Alabama and Mississippi require marriages performed by the pastors of any religious society to be registered in a book kept for the purpose.[1388]

Everywhere[1389] the clerk or other officer must keep a register of the facts entered in the license, sometimes with other data; and usually the original license is placed on file. The laws of Virginia and West Virginia, being practically the same, are perhaps more complete and more wisely drawn as regards registration than those of any other state of this group. In Virginia the clerk is required to keep three books, to be called respectively the register of marriages, the register of births, and the register of deaths. At the time of issuing a license he is to ascertain, as nearly as may be, the date and place of the proposed marriage, the full names of the parties, whether they are single, widowed, or divorced,[1390] the place of their birth and residence, the names of their parents, and the husband's occupation. Within twenty days after return of the license and certificate by the person solemnizing, the clerk is to record a full abstract thereof in his marriage register, setting forth the facts in convenient tabular form.

These two states have also provided for the collection of statistics from coroners, heads of families, and physicians; and, like Kentucky and Arkansas, they have established state systems of registration. On or before the first of March annually the clerk or other official in every county is required to submit to the state auditor of public accounts a full report of the facts contained in his marriage register; and every year the auditor is to prepare an abstract of the county reports and submit it to the general assembly at each regular session.[1391]

III. THE MIDDLE AND WESTERN STATES[1392]

a) Solemnization.—For half a century after the Declaration of Independence New York abstained from any legislation regarding the marriage celebration. The optional civil or ecclesiastical ceremony was still allowed as in the provincial era. In the meantime acts were passed for the punishment of bigamous and other unlawful unions; and in 1813 the statute-maker felt himself called upon to deal with the same hard case of conscience which had long before troubled the people of Virginia and Massachusetts. It was decreed that "every negro, mulatto, or mestee within this state, who is now a slave for life, shall continue such ... unless manumitted according to law; and the ... baptizing of any slave shall not be deemed ... a manumission." All marriages contracted "wherein one or more of the parties was, were, or may be slaves, shall be considered equally valid" as if they were free; but here also it is carefully provided that nothing in the law shall be construed so as to cause the bondman to be manumitted.[1393]

The revised statutes of 1827-28 contain a general "title" regulating matrimony which in many respects forms the basis of the existing law. "For the purpose of being registered and authenticated" marriage shall be solemnized only by the following persons: (1) ministers of the gospel and priests of every denomination; (2) mayors, recorders, and aldermen of cities; (3) judges of the county courts and justices of the peace. Quakers and Jews may "continue" to use their own rites. Record of marriage certificates is provided for; and in place of license or banns—neither of which is mentioned—the person performing the ceremony is authorized to identify the parties, if either is a stranger, by the oath of some person whom he knows.[1394] The existing law contains a similar provision. Under like circumstances the minister or magistrate must ascertain from the applicants their right to contract marriage, and for that purpose he may examine one or both of them, or any other person under oath, "which examination shall be reduced to writing and subscribed by the parties."[1395] Throughout the century the law regarding celebration has remained unchanged in general character, although authority to perform the ceremony has been extended to other officials and magistrates.[1396] The state steadily maintained the validity of marriages entered into by simple agreement without any formal celebration. It was enacted in 1887 that the provisions of the statute shall not be "construed to require the parties to any marriage, or any minister or magistrate to solemnize the same in the manner "therein prescribed;" but all lawful marriages contracted in the manner heretofore in use in this state, shall be as valid as if this article had not been passed."[1397]