Chapter XVI (2)

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

[Footnote 1226: See chap, xiii, sec. i.]

[Footnote 1227: HENING, _Statutes_, X, 361-63; _cf._ JEFFERSON,
_Notes on the State of Va._ (Brooklyn, 1794), 174.]

[Footnote 1228: HENING, _op. cit._, X, 363.]

[Footnote 1229: The testimonial runs as follows: "This shall
certify to all whom it may concern, that at a court held for
----, on the ---- day of ----, one thousand seven hundred and
----, A. B. produced credentials of his ordination, and also of
his being in regular communion with the ---- church, took the
oath of allegiance to the commonwealth, and entered into bond, as
required ... , and that he is hereby authorized to celebrate the
rites of matrimony," etc.--HENING, _op. cit._, XI, 503 (act of
Oct., 1784).]

[Footnote 1230: _Ibid._, 504.]

[Footnote 1231: Act of Dec. 22, 1792: _Acts of the Gen. Assembly_
(1794), 202-6.]

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

[Footnote 1232: HENING, _op. cit._, XI, 281, 282. By the act of
1792, also, marriages celebrated by magistrates before 1785 were
legalized: _Acts of the Gen. Assem._, 203.]

[Footnote 1233: They are called "commissioners" in the act of
1830: _Acts_ (1830-31), 103.]

[Footnote 1234: _Acts of the Gen. Assem. of Va._ (1794), 331.]

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

[Footnote 1235: So to Ohio and Brooke counties in 1796: _Acts of
the Gen. Assem._ (1803), 371; and to Bath county in 1830: _Acts_
(1830-31), 103.]

[Footnote 1236: Act of Dec. 20, 1830: _Acts_ (1830-31), 103.
Compare _Revised Code_ (1819), I, 393-403; and TATE, _Digest_
(1823), 417, where the provisions of 1794 and 1792 as to lay
commissioners and bond are retained and made general.]

[Footnote 1237: _Code of Va._ (1887), 555. _Cf._ _Code of Va._
(2d ed., 1860), 524, where this provision appears in the same
terms.]

[Footnote 1238: Laws of 1784 and 1792 as amended at the revision
of 1819: _Revised Code_ (1819), I, 396; TATE, _Digest_, 416.]

[Footnote 1239: Act of Feb. 13, 1812, chap. 25: TATE, _Digest_,
416.]

[Footnote 1240: Act of Feb. 16, 1831: _Acts_ (1830-31), 102; also
in _Supplement to Revised Code_ (1833), 221.]

[Footnote 1241: _Code of Va._ (1878), 555.]

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

[Footnote 1242: _Acts of the Legislature of W. Va._ (1868), 29.]

[Footnote 1243: _Ibid._ (1872-73), 501.]

[Footnote 1244: _Acts of the Legislature of W. Va._ (1877), 135.]

[Footnote 1245: See the act of March 18, 1882: _Acts of the Leg._
(1882), 312, 313; which is retained in _Code of W. Va._ (1897),
654, 655; and there has been no later legislation.]

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

[Footnote 1246: Act of Feb. 3, 1798: _Stat. Law of Ky._ (ed.
LITTELL), II, 65, 66. Provision was made in 1814 for revoking the
testimonial whenever a minister shall be "suspended, deposed, or
excommunicated, by and from the society to which he belongs, for
any other cause than a difference in religious tenets."--_Ibid._,
V, 95, 96.]

[Footnote 1247: Act of Dec. 12, 1799: _Stat. Law of Ky._, II,
275, 276.]

[Footnote 1248: _Kentucky Stat._ (1894), 764, 765; agreeing in
essential provisions with the act of March 24, 1851, taking
effect July 11, 1852: in _Acts_ (1850-51), 212-16. _Cf._
_Kentucky Stat._ (1899), 823.]

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

[Footnote 1249: See chap. xiii, sec. ii, above.]

[Footnote 1250: POE, _Code of Md._ (1888), 975. Compare KILTY,
_Laws_, 1777, chap. 12, sec. 3; and _Laws of Md._ (1787), 1777,
chap. 12, sec. iii.]

[Footnote 1251: Act of May 13: _U. S. Stat. at Large_, XXIX,
118-20; MOORE, _Code_ (1902), 266.]

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

[Footnote 1252: IREDELL-MARTIN, _Acts of the Gen. Assem.,
1715-1803_, I, 253.]

[Footnote 1253: _North Carolina Code_, I, 689, retaining the act
in _Laws_ (1871-72), chap. 193, sec. 3.]

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

[Footnote 1254: For the early years see SCOTT, _Laws of the State
of Tenn._ (1821), Index at "marriage;" _Statute Laws_ (1831),
219, 220; CARUTHERS AND NICHOLSON, _Compilation_ (1836), 449-52.]

[Footnote 1255: _Code of Tenn._ (1884), 609. The judges were
empowered by _Acts_ (1846), chap. 145, pp. 220, 221; chancellors
in 1842; _Statute Laws_ (1846), 126; rabbis by _Acts_ (1879)
chap. 98; and the governor and speakers by _Acts_ (1889), chap.
134, p. 272.]

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

[Footnote 1256: Editorial note, BREVARD, _Alphabetical Digest_
(1814), II, 438. _Cf._ on this point the remarks of EDITOR
DESAUSSURE, in connection with the case of Vaigneur _et al._,
_v._ Kirk (1808), in 2 _S. C. Equity Reports_, 644-46.

"In South Carolina the only reference to the parties by whom
marriages may be solemnized is found in section 2034, General
Statutes, 1882, which provides a penalty for the solemnization
of marriage between white and colored persons by 'any clergyman,
minister of the gospel, magistrate, or other person authorized by
law to perform the marriage ceremony.'"--WRIGHT, _Report_, 50,
51.]

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

[Footnote 1257: _Digest of the Laws of Georgia_ (Philadelphia,
1801), 314. Contracts previously celebrated before any justice
of the peace, minister, or preacher of the gospel are confirmed:
and the same persons, if properly qualified or ordained, are in
future authorized to perform the ceremony, in each case after due
notice or license.]

[Footnote 1258: Judges and justices of inferior courts are
mentioned as having power to join persons in marriage in the act
of 1799: _Digest of the Laws of Ga._, 733.]

[Footnote 1259: _Code of Ga._ (1882), 392, 393; _ibid._ (1896),
11, 223, 224.]

[Footnote 1260: _Acts_ (1866), 156, 157; _Code of Ga._ (1896),
II, 5.]

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

[Footnote 1261: An act of Feb. 19, 1836, validates marriages
illegally solemnized by members of the board of county police:
_Code of Miss._ (1848), 496.]

[Footnote 1262: In these states and territories marriage may be
celebrated as follows:

(1) Florida: By "all ordained ministers of the gospel in
communion with some church, all judicial officers and notaries
public": _Rev. Stat. of Florida_ (1892), 679 (act of Feb. 8,
1861). For the earlier law see act of Nov. 2, 1829, in THOMPSON,
_Manual or Digest_ (1847), 219; DUVAL, 88.

(2) Arkansas: By the governor of the state for the time
being; any judge of the courts of record; any justice of the
peace of the county where the marriage is solemnized; any
regularly ordained minister or priest of any religious sect or
denomination, when he shall have caused to be recorded in the
office of clerk and recorder of some county in the state the
license or credentials of his clerical character, and shall have
obtained from such clerk a certificate of the record thereof;
religious societies which reject formal ceremonies, to which the
parties belong, using their own rites: _Digest_ (1894), 1126,
1127, being the same law as in _Rev. Stat._ (1838), 536-38.

(3) Arizona: By a regularly licensed or ordained minister of
the gospel; any judge of the courts of record; justices of the
peace of the several counties: _Rev. Stat._ (1887), 371; _ibid._
(1901), 808, 809.

(4) New Mexico: By any ordained clergyman, without regard to the
sect to which he may belong; any civil magistrate; any religious
society by its own rites: _Compiled Laws_ (1897), 405, 406; see
act of Feb. 2, 1860: _Laws_ (1860), 120, or in _Rev. Stat._
(1865), 534.

(5) Alabama: By any licensed minister of the gospel in regular
communion with the Christian church or society of which he is a
member; pastor of any religious society, according to the rules
ordained or customs established thereby; Quakers, Menonists, and
other Christian societies, according to their forms of consent
published and declared before the congregation; all judges of
supreme, circuit, or city courts, or a chancelor, throughout
the state; any judge of probate or justice of the peace within
his county: _Code of Alabama_ (1897), I, 828. For the law of
Jan. 5, 1805, enacted by the "Legislative Council and House of
Representatives of Mississippi Territory," see TOULMIN'S _Digest_
(1823), 576, 577; or _Stat. of Miss. Territory_ (1816), 328-30.

(6) Mississippi: By any minister of the gospel ordained according
to the rules of his church or society, in good standing; judges
of the supreme or circuit court; justices of the peace within
their respective counties; members of the boards of supervisors
within their respective counties; Quakers, Menonists, or any
other Christian society, to which the parties belong, according
to their own customs: _Annotated Code_ (1892), 678. Compare the
laws of Jan. 5 and July 20, 1805, revised and amended Feb. 10,
1807, in _Stat. of Miss. Territory_ (1816), 328-30, already cited
for Alabama, which was originally a part of the Mississippi
Territory; also the act of June 29, 1822, in _Code of Miss._
(1848), 492, 493, being practically the same as the law of 1805
as modified by that of 1807.

(7) Missouri: By any judge of a court of record; any justice of
the peace; or any licensed or ordained preacher of the gospel
who is a citizen of the United States: act of March 1, 1897:
_Laws_, 116; also in _Rev. Stat._ (1899), I, 1036. The statute
of April 24, 1805, enacted by the "Governor and Judges of the
Indiana Territory"--who were authorized and empowered by an act
of Congress to make laws for the "District of Louisiana," of
which Missouri was a part--allows judges of the general court,
or of the county court of common pleas, in their respective
jurisdictions, and ministers of any religious society or
congregation within the districts in which they are settled, and
Quakers in their public meetings to solemnize marriages: _Laws of
a Pub. and Gen. Nature_ (1842), I, 66. Compare the act of Feb.
20, 1835, in _Rev. Stat._ (1835), 401, 402; and _Rev. Stat._
(1845), 729-31.

(8) Indian Territory: By act of Congress, May 2, 1890, _U.
S. Stat. at Large_, XXVI, 81, the marriage laws of Arkansas,
except as expressly modified, are put in force. Thus, by federal
enactment, marriages entered into by Indian customs are valid;
and, in addition to the persons authorized in Arkansas, they may
be solemnized by clerks, deputy clerks, and commissioners of the
United States courts, _Annot. Stat. of Ind. Ter._ (1899), 12, 13,
507 ff.

(9) Oklahoma: By a justice of the supreme court, judge of the
district or probate court, justice of the peace, a duly ordained,
licensed, or authorized preacher or minister of the gospel or
priest of any denomination; and previous to 1897, in case of
Indians, by the peacemakers, their agents, or the superintendent
of Indian affairs. Non-compliance with the statute does not
invalidate a marriage: _Stat. of Oklahoma_ (1893), 669; act of
Feb. 26: _Session Laws_ (1897), 210. By another act of 1897
Indian marriages hitherto celebrated by their own rites are
validated, and for the future forbidden, the Indians having
accepted land in severalty being subjected to the statute:
_ibid._, 212-15.

(10) Porto Rico: By any judge, or by any clergyman or minister of
any religion or sect, whether a citizen of the Island or of the
United States: _Rev. Stat. and Codes_ (1902), 808, 811.]

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

[Footnote 1263: Compare the acts of March 26, 1804, and March
2, 1805: _U. S. Stat. at Large_, II, 283-89, 322, 323; also in
POORE, _Charters_, I, 691-97.]

[Footnote 1264: Act of March 3, 1805: _U. S. Stat. at Large_, II,
331, 332; also in POORE, _Charters_, I, 697, 698. This act places
the appointment of the governor in the hands of the president;
but the judges are merely to be "appointed" and hold their office
for four years.

On the institution of government in the territory of Orleans see
ADAMS, _U. S._, II, chap. ii.]

[Footnote 1265: _Digest of Civil Laws now in force in the
Territory of Orleans_ (1808), 26.]

[Footnote 1266: _Ibid._, 24.]

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

[Footnote 1267: LISLET, _General Digest_ (1828), II, 3.]

[Footnote 1268: It is contained in LISLET, _op. cit._, II, 3-13;
also (in part) in the _Digest of the Civil Laws now in force in
the Territory of Orleans_, 24 ff.; with the changes to date of
publication in _Code civil de l'état de la Louisiane_ (1825),
80 ff.; in the reprint of the last-named compilation in _Civil
Code of La._ (1853). Compare the provisions of the present law in
VOORHIES AND SAUNDERS, _Revised Civil Code_ (1888), 60-68. See
also _The Laws of Las Siete Partidas, which are still in force in
the State of Louisiana_, translated from the Spanish (1820), I,
451-64.]

[Footnote 1269: LISLET, _op. cit._, II, 7-9, 10.]

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

[Footnote 1270: Act of March 17, 1809: LISLET, _op. cit._, II,
13.]

[Footnote 1271: LISLET, _op. cit._, II, 14.]

[Footnote 1272: _Civil Code_ (1853), 15.]

[Footnote 1273: _Ibid._]

[Footnote 1274: _Revised Code_ (1888), 62, 63. For the clause
regarding citizenship see _Acts_ (1855), 128. The present powers
of justices and parish judges are determined by _Acts_ (1864),
50. For the power of district judges see WRIGHT, _Report_, 53.]

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

[Footnote 1275: _Ordinances and Decrees of the Consultation,
Provisional Government of Texas, and the Convention Which
Assembled at Washington March 1, 1836_ (1838), 137, 138; also in
DALLAM, _Digest of the Laws of Texas_ (1845), 167.]

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

[Footnote 1276: Act of June 5, 1837: _Laws of the Republic of
Texas_ (1838), 233.

"When persons have intermarried as aforesaid agreeably to the
customs of the country and either the husband or wife has died
previous to the passage of this law," then such marriages are
legal and binding and the issue are legitimized, provided the
parties were living together as man and wife "at the said death
of either party."--_Ibid._, 233, 234.]

[Footnote 1277: _Laws of the Rep. of Tex._, 234; also DALLAM,
_Digest_, 167, 168. An act of Feb. 5, 1841, validates marriages
previously made by "bond": _Laws of Rep. of Tex._ (5th Cong.),
176.]

[Footnote 1278: Act of April 13, 1891: _Gen. Laws of Tex._
(1891), 96; being the same except as to Jewish rabbis, as act
of Nov. 1, 1866: _Laws_ (1866), 72, and _Revised Civil Stat._
(1888), I, 877; _Ann. Civ. Stat. of Tex._ (1897), I, 1081.]

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]

[Footnote 1279: _Code of Md._ (1888), I, 975.]

[Footnote 1280: LISLET, _General Digest_ (1828), II, 8.]

[Footnote 1281: VOORHIES AND SAUNDERS, _Revised Code of La._
(1888), 63; MERRICK, _Rev. Civil Code_ (1900), 25.]

[Footnote 1282: _Session Laws of Okla._ (1897), 210; WILSON,
_Stat. of Okla._ (1903), I, 858. Earlier one witness was
sufficient: _Stat. of Okla._ (1893), 669, 670. _Cf._ _Rev. Stat.
and Codes of Porto Rico_ (1902), 810.]

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

[Footnote 1283: It appears to be assumed in the earlier statutes
of Georgia that the celebration before a minister or magistrate
is to be according to the Anglican ritual: COBB, _Analysis of the
Stat. of Ga._ (1846), 292, 293.]

[Footnote 1284: _Code_ (1884), 609; _ibid._ (1896), 1039.]

[Footnote 1285: _Session Laws of Okla._ (1897), 210.]

[Footnote 1286: _Code_ (1883), I, 689; _Laws_ (1871-72), chap.
193, sec. 3.]

[Footnote 1287: _Digest_ (1894), 1127; see _Rev. Stat._ (1838),
537; _Ann. Stat. of Ind. Ter._ (1899), 509.]

[Footnote 1288: WRIGHT, _Report_, 57.]

[Footnote 1289: _Rev. Stat. of Arizona_ (1887), 372; _ibid._
(1901), 810.]

[Footnote 1290: Act of March 21, 1889: _Arizona Session Laws_
(1889), 58. This provision seems not to be retained in the _Rev.
Stat._ of 1901.]

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

[Footnote 1291: In West Virginia the penalty is confinement in
jail for not exceeding one year, or a fine of $500, or both:
_Code_ (1900), 972; in Virginia it is not exceeding one year in
jail and a fine of not more than $500: _Code_ (1887), 899; in
Kentucky, not exceeding three years in the penitentiary, and the
same penalty for falsely personating father, mother, or guardian:
_Kentucky Stat._ (1894), 766; _ibid._ (1899), 824.]

[Footnote 1292: _Miss. Ann. Code_ (1892), 679.]

[Footnote 1293: _Tenn. Code_ (1884), 610, 611; _ibid._ (1896),
104.]

[Footnote 1294: _Code of Va._ (1887), 555; _Code of W. Va._
(1900), 655; _Kentucky Stat._ (1894), 763, 764; _Code of Ga._
(1882), 393.]

[Footnote 1295: See Daniel _v._ Sams, 17 _Florida Rep._, 487, an
interesting case involving a slave marriage.]

[Footnote 1296: LITTELL, _Kentucky Stat._, II (1810), 571,
572; COOPER, _Stat. at Large of S. C._, II, 475, 476; BREVARD,
_Alphabetical Digest_, II (1814), 41-44; _Rev. Stat._ (1873),
481.]

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

[Footnote 1297: _Code of Va._ (1887), 556.]

[Footnote 1298: Colored persons cohabiting as husband and wife
before Feb. 28, 1867, were recognized as such in West Virginia:
_Code_ (1900), 655; similarly in Tennessee: _Code_ (1884), 609,
610; before March 12, 1872, in South Carolina: _Rev. Stat._
(1894), I, 753; when so living on Aug. 15, 1870, in Texas: _Rev.
Civil Laws_ (1888), I, 879; before Dec. 14, 1866, in Florida:
_Acts and Resolves_ (1866), 22, _Rev. Stat._ (1892), 681; before
Dec. 20, 1866, in Arkansas: _Digest_ (1894), 1128.]

[Footnote 1299: MOORE, _Code of D. C._ (1902), 268.]

[Footnote 1300: _Code of Md._ (1888), II, 977, 978.]

[Footnote 1301: Subject to prosecution and punishment for
fornication, or fornication and adultery, for refusal: _Code of
Ga._ (1882), 356, 357. _Cf._ _Acts_ (1865-66), 239, 240; _Acts_
(1866), 156, 157; and also 61 _Georgia Reports_, 306, and 40
_Georgia Reports_, 244.]

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

[Footnote 1302: _Digest of Ark._ (1894), 1125; _Ann. Stat. of
Ind. Ter._ (1899), 507; the same in _Rev. Stat._ (1838), 553;
_Rev. Stat. of Mo._ (1899), I, 1035: _Compiled Laws of N. M._
(1897), 405.

But the Oklahoma statute of 1893 adds: "Consent alone will not
constitute a marriage; it must be followed by a solemnization,
or by a mutual assumption of marital rights, duties, or
obligations."--_Statutes_ (1893), 668. By the act of 1897 for
this passage is substituted: "and the marriage relation shall
only be entered into, maintained, or abrogated as provided by
law."--_Session Laws_ (1897), 208.]

[Footnote 1303: VOORHIES AND SAUNDERS, _Revised Code of La._
(1888), 60, 61; _cf._ the act of 1807, in _Digest of Civil Laws
Now in Force_ (1808), 24; or LISLET, _Gen. Digest_ (1828), 4; or
_Code Civil_ (1825), 80-82.]

[Footnote 1304: _Rev. Stat. and Codes of Porto Rico_ (1902), 805.]

[Footnote 1305: _Code of Ga._ (1882), 392. _Cf._ the law of North
Carolina above cited: _Code of N. C._ (1883), I, 689.]

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

[Footnote 1306: For both sexes see _Code of Ala._ (1897), 829;
_Digest of Ark._ (1894), 1125; also _Rev. Stat._ (1835), 535;
_Ann. Stat. of Ind. Ter._ (1899), 507; _Rev. Stat. of Ariz._
(1887), 371; _Code of Ga._ (1896), II, 222; _Kentucky Stat._
(1899), 822; _Rev. Stat. and Codes of Porto Rico_ (1902), 807;
_Rev. Code of La._ (1888), 61; MERRICK, _Rev. Civ. Code of
La._ (1900), 23; _Session Laws of Okla._ (1897), 208; WILSON,
_Stat. of Okla._ (1903), I, 857; _Comp. Laws of N. M._ (1897),
407; _Code of N. C._ (1883), I, 688; _Rev. Civil Stat. of Tex._
(1888), I, 878 (law of 1837); _Ann. Civil Stat. of Texas_ (1897),
I, 1082; _Code of Va._ (1887), 560, 561; _Acts of W. Va._ (1897),
chap. 34; _Code of W. Va._ (1900), 661; MOORE, _Code of D. C._,
265. _Cf._ WRIGHT, _Report_, 29.]

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

[Footnote 1307: By inference from the law below cited.]

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

[Footnote 1308: For both sexes see _Code of Ala._ (1897), 828;
_Rev. Stat. of Ariz._ (1887), 371; _ibid._ (1901), 810; _Digest
of Ark._ (1894), 1129, 874; _Ann. Stat. of Ind. Ter._ (1899),
413, 510; _Rev. Stat. of Fla._ (1892), 679; _Stat. of Ky._
(1899), 824; _Session Laws of Okla._ (1897), 208, 209; _Rev. Code
of La._ (1888), 61, and the same in 1807, LISLET'S GENERAL DIGEST
(1828), II, 5; _Maryland Code_ (1888), I, 976, or in _Laws_
(1886), chap. 497; _Ann. Code of Miss._ (1892), 677; _Rev. Stat.
of Mo._ (1899), I, 1037; _Compiled Laws of N. M._ (1897), 405,
406, 407; _Rev. Civil Stat. of Tex._ (1888), I, 378; _Ann. Civil
Stat. of Tex._ (1897), I, 1082; _Code of Va._ (1887), 555; _Code
of W. Va._ (1900), 654; _Compiled Laws of D. C._ (1894), 273;
_Acts of Tenn._ (1899), 36.]

[Footnote 1309: _Code of Ga._ (1882), 393; _ibid._ (1896), II,
223. _Cf._ WRIGHT, _Report_, 30.]

[Footnote 1310: _Rev. Stat. of S. C._ (1894), II, 347, 348.]

[Footnote 1311: _Code of Ala._ (1897), I, 828, 829; _cf._ WRIGHT,
_Report_, 29.]

[Footnote 1312: _Kentucky Stat._ (1899), 825. But the marriage of
an infant without consent is not for that reason void: Canon _v._
Alsbury, 1 A. K. MARSHALL, _Kentucky Reports_, 76.]

[Footnote 1313: _Code of W. Va._ (1900), 656.

The _Rev. Code of S. C._ (1873), 441, contains the provision that
if any "woman, child or maiden, being above the age of twelve
years, and under the age of sixteen years, do at any time consent
or agree to any contract of matrimony," against the will or
without the knowledge of parent or guardian, "by secret letters,
messages, or otherwise," she shall forfeit her estate, including
lands, tenements, and hereditaments, "to the next of kin who next
would inherit, during the life of the offender, then to the one
who would have inherited had there been no such child."]

[Footnote 1314: _Acts_ (1899), 36.]

[Footnote 1315: _Rev. Stat. and Codes of Porto Rico_ (1902), 806.]