Chapter XVI (1)

A CENTURY AND A QUARTER OF MARRIAGE LEGISLATION IN THE UNITED STATES, 1776-1903

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

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

I. THE NEW ENGLAND STATES

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

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

[Footnote 1117: _Laws of the Com. of Mass., 1780-1816_, I, 321.]

[Footnote 1118: Act of Feb. 12, 1821: _Laws of the Com. of Mass._
(1821), 507. This somewhat extends the provisions of the act of
Feb. 20, 1818: _ibid._ (1818), 550.]

[Footnote 1119: Act of April 1, 1834: _Laws of the Com. of Mass._
(1834), 252-57.]

[Footnote 1120: _Pub. Stat._ (1882), 811. The law has remained
substantially the same since 1835: see _Rev. Stat._ (1836), 477;
_Supp. to Gen. Stat., 1860-1872_, I, 540.]

[Footnote 1121: _Acts and Resolves of Mass._ (1899), 379.]

[Footnote 1122: Act of April 22, 1896: _Acts and Resolves_, 257.
This statute further declares that "no rabbi of the Israelitish
faith shall solemnize marriage until he has filed with the clerk
or registrar of the town or city where he resides a certificate
of the establishment of the synagogue of which he is rabbi,
and of the date of his appointment thereto, and of the term of
his engagement."--_Ibid._, 257. _Cf._ _Rev. Laws_ (1902), II,
1349-50, with somewhat different wording.]

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

[Footnote 1123: Also the wardens of the town of New Shoreham:
_Pub. Statutes_ (1882), 416; _Gen. Laws_ (1896), 621. The justice
has power in any town of the state.]

[Footnote 1124: _Pub. Laws of R. I._ (1798), 481-83; _ibid._
(1844), 267. By this date the justice of the peace had ceased to
act.]

[Footnote 1125: _Revised Stat._ (1849), 273; _Stat. of the State
of Conn._ (1854), 374, 375; _Gen. Stat._ (1875), 186; _ibid._
(1887), 609; _ibid._ (1902), 1086.]

[Footnote 1126: SLADE, _State Papers_, 292, 484. _Cf._ _Laws of
the State of Vermont_ (1798), 330.]

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

[Footnote 1127: Act of Feb. 15, 1791: _Laws of the State of N.
H._ (1797), 295, 296.]

[Footnote 1128: _Cf._ _Const. and Laws_ (1805), 296; _Laws of the
State_ (1815), 350, 351; _ibid._ (1830) 172-74.]

[Footnote 1129: _Laws of N. H._ (1833), 88.]

[Footnote 1130: _Gen. Laws_ (1878), 428; _Pub. Stat._ (1891),
494; _ibid._ (1900), 589.]

[Footnote 1131: _Pub. Laws_ (1798), 481-83; same provision,
_ibid._ (1822), 371.]

[Footnote 1132: _Ibid._ (1844), 267.]

[Footnote 1133: _Gen. Laws_ (1896), 621. _Cf._ _Pub. Stat._
(1882), 416.]

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

[Footnote 1134: _Laws of the State of Maine_ (1821), I, 341.]

[Footnote 1135: _Public Acts_ (1828), 1157, 1158; _Laws of the
State of Maine_ (1831), III, 238-40.]

[Footnote 1136: _Revised Statutes of Maine_ (1884), 516, 517.
This provision has long existed: see _Acts and Resolves_ (1876),
chap. 110, sec. 2, pp. 78, 79; _Revised Stat._ (1871), 485;
_ibid._ (1857), 391. _Cf._ WRIGHT, _Report_, 53.]

[Footnote 1137: _Acts and Resolves_ (1875), chap. 56, p. 44;
_Revised Stat._ (1884), 517. _Cf._ 62 _Maine Reports_, 596.]

[Footnote 1138: SLADE, _State Papers_, 292, 484.]

[Footnote 1139: _Laws of the State of Vt._ (1798), 330.]

[Footnote 1140: Act of Nov. 7, 1800: _Laws of the State of Vt._
(1808), I, 268.]

[Footnote 1141: _Ibid._, 269.]

[Footnote 1142: _Ibid._, 272, 273.]

[Footnote 1143: _Revised Stat. of 1839_ (1840), 319.]

[Footnote 1144: _Vermont Stat._ (1894), 500.]

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

[Footnote 1145: _Acts and Laws_ (1784), 130.]

[Footnote 1146: _Pub. Stat. Laws_ (1821), 316; the same
provision, _ibid._ (1835), 370.]

[Footnote 1147: _Pub. Acts_ (1847), 39.]

[Footnote 1148: _Gen. Stat._ (1866), 301, note, giving a summary
of changes in the law since 1640. _Cf._ _Gen. Stat._ (1874), 186;
_ibid._ (1887), 609; _ibid._ (1902), 1086. See 1 ROOT, 381; 4
_Conn. Reports_, 134, 209.]

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

[Footnote 1149: _Gen. Stat._ (1887), 609.]

[Footnote 1150: _Pub. Stat. of Mass._ (1882), 811; _Pub. Stat.
of N. H._ (1891), 494; _Gen. Stat. of N. H._ (1867), 331; _Gen.
Laws of R. I._ (1896), 622; _Vermont Stat._ (1894), 500; _Revised
Stat. of Maine_ (1884), 516.]

[Footnote 1151: Two witnesses, besides the person solemnizing the
marriage, must attend: _Gen. Laws of R. I._ (1896), 624; _Acts
and Resolves_ (1899), 50, 51.]

[Footnote 1152: _Pub. Stat._ (1900), 590; _Gen. Stat._ (1867),
332.]

[Footnote 1153: In Massachusetts the penalty is a fine not
exceeding $500, or imprisonment in jail or in the house of
correction for a term not exceeding one year, or both: Act of
April 22, 1896: _Acts and Resolves_ (1896), 257; in Maine it is
$1,000, or not less than five years' imprisonment: _Rev. Stat._
(1884), 517; in New Hampshire it is not exceeding $300, one-half
to the complainant: _Pub. Stat._ (1891), 494; _Gen. Laws_ (1878),
429; in Vermont, not less than six months' imprisonment or a fine
of from $100 to $300; in Connecticut, not to exceed $500, or six
months' imprisonment: _Gen. Stat._ (1887), 348; in Rhode Island
the fine is $500: _Gen. Laws_ (1896), 625.]

[Footnote 1154: _Pub. Stat. of Mass._ (1882), 811; _Revised
Stat. of Maine_ (1884), 517; _Pub. Stat. of N. H._ (1891), 494;
_Vermont Stat._ (1894), 502; _Gen. Laws of R. I._ (1896), 625.]

[Footnote 1155: _Pub. Stat. of Mass._ (1882), 811; _Rev. Laws of
Mass._ (1902), II, 1351; _Rev. Stat. of Maine_ (1884), 517; _Pub.
Stat. of N. H._ (1891), 494; _Gen. Laws of R. I._ (1896), 625.]

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

[Footnote 1156: For a digest or tabulation of the statutes of all
the states and territories relating to definition, age of consent
to marriage, age below which parental consent is required,
prohibited degrees, void, voidable, and forbidden marriages, as
the law stood in 1887, see WRIGHT, _Report_, 28-45.]

[Footnote 1157: See chap, xviii, sec. i, _b_), for some account
of the laws governing the "age of consent."]

[Footnote 1158: _Pub. Stat. of N. H._ (1900), 588.]

[Footnote 1159: Written consent is requisite in Connecticut,
Maine, Rhode Island, and Vermont; but it may be either written
or verbal in Massachusetts; and in all cases the consent is
preliminary to issuance of license: _Pub. Stat. of Mass._ (1882),
810; _Rev. Stat. of Maine_ (1884), 516; _Vermont Stat._ (1894),
501; _Gen. Stat. of Conn._ (1887), 608, 609; _ibid._ (1902),
1085; _Gen. Laws of R. I._ (1896), 623; and _Acts and Resolves_
(1899), 49.]

[Footnote 1160: _Pub. Acts of Conn._ (1895), 474.]

[Footnote 1161: Act of May 18, 1894: _Acts and Resolves_ (1894),
453, 454. See also the provision referred to below, relating
to the clandestine marriage of a girl of sixteen secured by
abduction.]

[Footnote 1162: _Acts and Resolves of Mass._ (1899), 160; _cf._
_Revised Laws_ (1902), II, 1347-49.]

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

[Footnote 1163: SWIFT, _System of the Laws of Conn._ (1795), I,
186, 187.]

[Footnote 1164: _Pub. Stat._ (1900), 588. _Cf._ WRIGHT, _Report_,
34.]

[Footnote 1165: _Acts and Laws_ (1750), 144.]

[Footnote 1166: _Pub. Stat. Laws_ (1808), I, 478, 479 n. 4.]

[Footnote 1167: The law forbidding such unions was repealed in
May, 1816: _Pub. Stat. Laws_ (1816), 261.]

[Footnote 1168: In Vermont, Connecticut, and Rhode Island such
unions are void; in the other three states they are both void
and incestuous; but in Vermont and Massachusetts they are void
only when solemnized in the state; while in all the issue is
illegitimate: _Pub. Stat. of N. H._ (1891), 493; _Pub. Stat. of
Mass._ (1882), 808, 809, 1166; _Gen. Laws of R. I._ (1896), 621,
1000; _Vermont Stat._ (1894), 500, 505; _Gen. Stat. of Conn._
(1902), 1085; _Rev. Stat. of Maine_ (1884), 520, 903.]

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

[Footnote 1169: In Rhode Island marriage or carnal connection
between persons so related is punishable by imprisonment of from
five to twenty years: _Gen. Laws_ (1896), 1001; in Connecticut,
by two to five years' imprisonment: _Gen. Stat._ (1887), 343; in
New Hampshire, by a fine of not exceeding $500 or imprisonment
not exceeding three years: _Pub. Stat._ (1891), 728; in
Massachusetts, by confinement in state's prison not exceeding
twenty years, or in jail not exceeding three years: _Pub. Stat._
(1882), 1166; in Maine, one to ten years' imprisonment: _Rev.
Stat._ (1884), 903; in Vermont, confinement in state's prison
not more than five years or a fine of not more than one thousand
dollars or both: _Vermont Stat._ (1894), 902, 903.]

[Footnote 1170: _Pub. Stat. Laws_ (1808), 478, 479 n. 4. See
chap, xii, sec. iv.]

[Footnote 1171: For adultery the Massachusetts statute prescribed
the gallows, whipping, and the scarlet badge; Act of Feb. 17,
1785; _Laws of the Com. of Mass., 1780-1816_, I, 217; and the
gallows with fine, whipping, or imprisonment appears in the early
New Hampshire laws: _Laws of the State_ (1794), 294, 295, 285.]

[Footnote 1172: So by implication in Maine: WRIGHT, _Report_, 39
n. _k_. _Cf._ _Vermont Stat._ (1894), 506 (voidable); _Pub. Stat.
of Mass._ (1882), 809.]

[Footnote 1173: _Rev. Stat. of Maine_ (1884), 515; _Vermont
Stat._ (1894), 506 (voidable); _Pub. Stat. of Mass._ (1882), 809;
_Gen. Laws of R. I._ (1896), 621.]

[Footnote 1174: _Vermont Stat._ (1894), 506, 507 (voidable).]

[Footnote 1175: _Pub. Stat. of N. H._ (1891), 495; _ibid._
(1900), 590; _Gen. Laws of R. I._ (1896), 621; _Vermont Stat._
(1894), 505; _Rev. Stat. of Me._ (1884), 515; _Pub. Stat. of
Mass._ (1882), 809.]

[Footnote 1176: Such unions were void without process in Maine:
_Rev. Stat._ (1847), 364; _ibid._ (1857), 396. They are so now by
implication: WRIGHT, _Report_, 39 n. _k_.]

[Footnote 1177: So in Rhode Island as late, at any rate, as 1844:
_Pub. Laws_ (1844), 268.]

[Footnote 1178: There are copies of three of these reports in the
library of Harvard University, one marked "Mass. General Court,
No. 46;" a second marked "No. 7, 1841;" and a House report marked
"No. 28, 1839." For the repeal, see _Acts and Resolves_ (1843),
40; _Supp. to Rev. Stat., 1836-1853_, 248.]

[Footnote 1179: _Gen. Stat._ (1887), 609. The question of good
faith is not raised in the statute. _Cf._ _Gen. Stat._ (1902),
1086.]

[Footnote 1180: WRIGHT, _Report_, 28. _Cf._ _Vermont Stat._
(1894), 516; _Rev. Stat. of Mass._ (1836), 476; _ibid._ (1882),
809; _Rev. Laws of Mass._ (1902), II, 1346; _Rev. Stat. of Maine_
(1884), 516; _ibid._ (1857), 391.]

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

[Footnote 1181: WRIGHT, _Report_, 35.]

[Footnote 1182: _Gen. Stat._ (1887), 343; _ibid._ (1902), 375.]

[Footnote 1183: _Rev. Stat. of Me._ (1884), 883.]

[Footnote 1184: In case of abduction. This offense is punishable
by imprisonment for a term of not more than one year or a fine
of not exceeding $1,000: _Pub. Stat._ (1882), 1165. This law
originated in 1852: see the act of May 20, 1852 (_Supp. to Rev.
Stat., 1836-1853_, 852), whose penalties are, however, not the
same. _Cf._ _Rev. Laws_ (1902), II, 1785.]

[Footnote 1185: _Pub. Acts of Conn._ (1895), 667. This precedent
has been followed by Minnesota and Kansas: see p. 480, below.]

[Footnote 1186: Under a penalty of $20 for each offense: _Rev.
Stat._ (1884), 516; _ibid._ (1870), 484; _Acts and Resolves_
(1858), chap, xiv, secs. 2, 3, p. 12.]

[Footnote 1187: In the case of paupers a license may not be
issued without the written consent of the selectmen or overseer
of the poor of each of the towns where the parties reside, or
which are liable for their support: _Vermont Stat._ (1894), 501.]

[Footnote 1188: In Maine such children are legitimized by
marriage; in Connecticut, Massachusetts, New Hampshire, and
Vermont, by marriage and acknowledgment of father: WRIGHT,
_Report_, 26, 27. _Cf._ _Pub. Stat. of N. H._ (1891), 495;
_Vermont Stat._ (1894), 485; _Gen. Stat. of Conn._ (1887), 157;
_Rev. Stat. of Me._ (1884), 611; _Pub. Stat. of Mass._ (1882),
743.]

[Footnote 1189: _Gen. Laws of R. I._ (1896), 805, 806; _Rev.
Stat. of Me._ (1884), 838, 839; _Vermont Stat._ (1894), 269, 270;
_Pub. Stat. of N. H._ (1891), 596; _Gen. Stat. of Conn._ (1887),
318, 319.]

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

[Footnote 1190: _Acts and Laws of Conn._ (1784), 135, 136.]

[Footnote 1191: _Pub. Stat. Laws_ (1808), I, 477 n. 1.]

[Footnote 1192: _Acts and Laws_ (1750), 144. _Cf._ also _Acts
and Laws_ (1786), 135 ff.; _ibid._ (1805), 285, 286; _Pub. Stat.
Laws_ (1821), 316; _ibid._ (1835), 369, 370; _ibid._ (1839), 412,
413; _Rev. Stat._ (1849), 272; _Statutes_ (1854), 374-78 (repeal
of old law and enactment of a new registration system).]

[Footnote 1193: _Laws of N. H._ (1797), 296.]

[Footnote 1194: See _Const. and Laws_ (1805), 296, 297; _Laws of
the State_ (1815), 350, 351; _ibid._ (1830), 172-74; _Rev. Stat._
(1843), 290-92; _Compiled Stat._ (1853), 375, 376; _Laws of N.
H._ (1854), 1415, 1416 (new system introduced).]

[Footnote 1195: _Laws of the Com. of Mass., 1780-1816_, I, 322,
323.]

[Footnote 1196: _Laws of the Com. of Mass._ (1834), 251-57; _Rev.
Stat._ (1836), 476; _Supp. to Rev. Stat., 1836-1853_, I, 597;
_Acts and Resolves_ (1850), 347 (act of March 28, establishing
the modern license system).]

[Footnote 1197: It was retained in Vermont until 1864: _Gen.
Stat._ (2d ed., 1870), 856. _Cf._ the acts of 1779 and 1784 in
SLADE, _State Papers_, 292, 484; and _Laws of the State_ (1798),
380, 331; and in Maine until _after_ 1858: compare _Laws of the
State_ (1821), I, 340 ff.; _Rev. Stat._ (1857), 390; _Acts and
Resolves_ (1858), 12 (new system introduced). A reactionary
step was taken in the Rhode Island law of Jan., 1849. Hitherto
the optional plan had prevailed; by this act, in all cases,
solemnization is allowed only after at least one notice in a
religious meeting: see _Public Laws, 1848-1851_, 757. The _Pub.
Laws_ (1844), 267, show the optional plan in force; but it does
not appear in _Rev. Stat._ (1857), 312, 313, a certificate of
qualification presented by the parties to the person conducting
the ceremony taking its place.

The following is the form of notice required to be posted
for fourteen days, when application is made to a lay
officer--justice, warden, and later a judge--as given in the
_Pub. Laws of R. I._ (1798), 481, 482:

"KNOW all men by these presents, that A. B. of ---- and C. D. of
---- have declared unto me their intentions of marriage.... I do
therefore hereby make public the said intentions. If any person
know any just cause or impediment why these persons shall not be
joined together in marriage, they may declare the same as the law
directs. Given under my hand and seal, at ----, this ---- day of
----."]

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

[Footnote 1198: For the special case of a male under eighteen and
a female under sixteen, see above, subsec. _b_).]

[Footnote 1199: _Pub. Stat. of Mass._ (1882), 810; _Rev. Laws_
(1902), II, 1347, 1348, 1352.]

[Footnote 1200: _Pub. Stat. of Mass._ (1882), 258.]

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

[Footnote 1201: _Rev. Stat. of Me._ (1884), 515, 516; _Vermont
Stat._ (1894), 501.]

[Footnote 1202: _Pub. Stat. of R. I._ (1882), 416, 417; _Gen.
Laws_ (1896), 622, 623, where the elaborate forms of the
declarations of the "expectants" are given in full; and the act
of 1898, _Acts and Resolves_, 47 ff. _Cf._ _Gen. Stat. of Conn._
(1887), 24, 608, 609; _Pub. Stat. of N. H._ (1891), 493, 494;
_Gen. Laws of N. H._ (1878), 428; _Gen. Stat. of N. H._ (1867),
331; _Laws of N. H._ (1903), 79, requiring non-residents to file
notice five days before issue of certificate.]

[Footnote 1203: In Connecticut the fine for such illegal
celebration was for a long time just $67: _Acts and Laws_ (1805),
286; _Rev. Stat._ (1849), 273; but it is now $100: _Gen. Stat._
(1902), 1086. In Massachusetts the fine is not to exceed $500:
_Acts and Resolves_ (1896), 257; earlier it was $50 to $100:
_Pub. Stat._ (1882), 811; in Rhode Island the penalty is $1,000,
or not to exceed six months' imprisonment: _Gen. Laws_ (1896),
625; _Acts and Resolves of R. I._ (1899), 51; in Maine, $100,
one-third to the prosecutor and two-thirds to the county: _Rev.
Stat._ (1884), 517; in Vermont, not less than $10: _Vermont
Stat._ (1894), 502; in New Hampshire it is $60, to the parent,
master, or guardian of either party, who may prosecute: _Pub.
Stat._ (1891), 494; _Gen. Laws_ (1878), 428.]

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

[Footnote 1204: By the early laws of Rhode Island, after the
wedding, the person solemnizing gave to the parties a certificate
in the following form: "I hereby certify that A. B. of ----,
son of ----, and C. D. of ----, daughter of ----, were lawfully
joined together in marriage on the ---- day of ---- by me
the subscriber."--_Pub. Laws_ (1798), 486. At present the
"indorsement" is in similar form: _Gen. Laws_ (1896), 624.]

[Footnote 1205: In Connecticut and Vermont the indorsed
certificate is sent to the officer of the town whence it issued;
in Rhode Island, to the officer of the town where the marriage
was solemnized: _Gen. Stat. of Conn._ (1887), 609; _Vermont
Stat._ (1894), 501, 502; _Acts and Resolves of R. I._ (1899), 49,
50; _Gen. Laws of R. I._ (1896), 624. The form of indorsement
prescribed in Rhode Island is as follows: "I hereby certify that
the herein described ---- and ---- were joined in marriage by
me, in accordance with the law of the state of Rhode Island, in
the ---- of ---- this ---- day of ----, A. D., 189-."--_Ibid._,
624. Earlier in Connecticut a separate certificate of the
solemnization was sent to the clerk: _Pub. Stat. Laws_ (1821),
317.]

[Footnote 1206: _Pub. Acts of Conn._ (1899), 998.]

[Footnote 1207: _Rev. Stat. of Me._ (1887), 517: FREEMAN, _Supp.
to Rev. Stat._, 368, 369.]

[Footnote 1208: Act of May 17, 1892: _Acts and Resolves_ (1892),
250-52.]

[Footnote 1209: _Pub. Stat. of Mass._ (1882), 811.]

[Footnote 1210: _Rev. Stat. of Me._ (1884), 516. But in Maine the
certificate or declaration must be filed in the towns where the
parties "respectively" dwell.]

[Footnote 1211: _Pub. Stat. of N. H._ (1891), 494; _ibid._
(1900), 589; _Gen. Laws_ (1878), 428.]

[Footnote 1212: _Vermont Stat._ (1894), 540.]

[Footnote 1213: _Ibid._]

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

[Footnote 1214: _Acts and Resolves of Mass._ (1897), 420, 421.
For the earlier law as to the clerk's record see _Pub. Stat._
(1882), 256. In 1786 the town clerk is to report to the clerk of
the general sessions of the peace in each county, who is to keep
a record: _Laws of the Com., 1780-1816_, I, 323.]

[Footnote 1215: _Pub. Stat. of N. H._ (1900), 588. _Cf._ _Gen.
Laws_ (1878), 428; _Gen. Stat._ (1867), 331; and the act of 1851,
_Laws of N. H._ (1851), chap. 1103; _Comp. Stat._ (1853), 284,
285, which seem to have first introduced something like a modern
provision for record.]

[Footnote 1216: FREEMAN, _Supp. to Rev. Stat., 1885-1895_,
370-75; _Laws_ (1891), chap. 118, 127, as amended by _Laws_
(1893), chap. 233, 248, and _Laws_ (1895), chap. 154, 169-73.]

[Footnote 1217: Act of May 6, 1897: _Pub. Acts_, 850. _Cf._ for
the earlier law _Gen. Stat._ (1887), 608.]

[Footnote 1218: _Gen. Laws of R. I._ (1896), 331, 622, 623;
superseded by act of May 6, 1898: _Acts and Resolves_, 47 ff.]

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

[Footnote 1219: In Massachusetts report is made to the secretary
of the commonwealth: _Pub. Stat._ (1882), 255-58; _Acts and
Resolves_ (1897), 421-29; in New Hampshire and Maine, to the
state registrar of vital statistics, being the secretary of the
state board of health: _Pub. Stat. of N. H._ (1891), 490-92;
_Laws_ (1899), 255, 256; FREEMAN, _Supp. to Rev. Stat. of Me.,
1885-1895_, 370; in Connecticut, to the superintendent of
registration of vital statistics, who is the secretary of the
state board of health: _Gen. Stat._ (1887), 20 ff., 566; _cf._
_Public Acts_ (1897), 850.]

[Footnote 1220: _Gen. Laws_ (1896), 624. See the act of 1899,
_Acts and Resolves_, 19, providing for the registration of
births, deaths, and marriages, knowledge of which may in any
reliable way come to the recorder.]

[Footnote 1221: By an act of 1893 the registrars of births,
deaths, and marriages are directed, so far as possible, to
complete the records from Jan. 1, 1850: _Pub. Acts_ (1893), 324.
This act has since been twice supplemented: _ibid._ (1895), 552;
_ibid._ (1897), 836.]

[Footnote 1222: _Acts and Resolves of Me._ (1903), 168.]

[Footnote 1223: Act of Nov. 30, 1898: _Acts and Resolves of Vt._
(1898), 41-46, repealing the act of 1896 and all other acts in
conflict. _Cf._ also _Vermont Stat._ (1894), 538-40.]

II. THE SOUTHERN AND SOUTHWESTERN STATES[1224]

[Footnote 1224: In this section the laws of marriage are traced
for the following twenty-one districts and commonwealths:
the states of Alabama, Arkansas, Florida, Georgia, Kentucky,
Louisiana, Maryland, Mississippi, Missouri, North Carolina, South
Carolina, Tennessee, Texas, Virginia, and West Virginia; Indian
Territory, the territories of Arizona, New Mexico, Oklahoma,
Porto Rico, and the District of Columbia.]

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

[Footnote 1225: See chap. xiii.]