Chapter XVI (3)

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

[Footnote 1316: Probably the "majority" of the grandparents of
the two persons is meant.]

[Footnote 1317: LISLET, _General Digest_ (1828), II, 5, 6; _Civil
Laws Now in Force in the Territory_ (1808), 62.]

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

[Footnote 1318: _Rev. Civil Code of La._ (1888), 62, 91, 92;
VOORHIES, _Rev. Laws_ (1884), 236, 237; _Rev. Laws_ (1897), 393.
Since 1807 the council (or meeting) has been composed of at
least five relatives or friends, summoned by the judge, and held
before an officer, practically as required by the present law:
see _Civil Laws Now in Force in the Territory_ (1808), 62. For
failure to attend a meeting, when cited, there is a fine of $20,
in the discretion of the judge to be applied to the expenses of
the meeting. In place of absentees "friends" may be appointed:
_Rev. Civil Code_ (1888), 92.]

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

[Footnote 1319: _Rev. Stat. of Fla._ (1892), 820, for the
first time expressly prohibiting marriage within "Levitical
consanguinity;" but probably earlier the law intended the same
restriction: MCCLELLAN, _Digest of the Laws of Fla._, chap. 59,
sec. 8; WRIGHT, _Report_, 32.]

[Footnote 1320: _Rev. Stat, of Ariz._ (1887), 371; _ibid._
(1901), 809; _Digest of Ark._ (1894), 1125, 1126; _Rev. Stat,
of Mo._ (1899), I, 1036; _Ann. Stat, of Ind. Ter._ (1899), 507;
_Session Laws of Okla._ (1897), 208; _Acts of La._ (1900), 188.]

[Footnote 1321: _Acts_ (1865-66), 244, removing penalty for
marriage of first cousins since Dec. 11, 1863, and repealing
conflicting laws.]

[Footnote 1322: _Rev. Stat. and Codes of Porto Rico_ (1902), 806,
807.]

[Footnote 1323: Assuming that this relationship is included
in the restrictions of the Levitical law which is in force in
Georgia, and probably also in Florida: see MCCLELLAN, _Digest
of the Laws of Fla._, chap. 59, sec. 8; and compare WRIGHT,
_Report_, 32.]

[Footnote 1324: Act of Oct., 1788: HENING, _Statutes_, XII, 688,
689. Persons married contrary to the act shall be "separated
by the definitive sentence or judgment of the high court of
chancery."]

[Footnote 1325: In 1827 the law forbidding marriage with a
deceased wife's sister was considerably relaxed. The parties
are no longer to be separated, but to be "deemed guilty of a
misdemeanor, to be prosecuted by information, or indicted in the
Superior Court of Law;" and on conviction they are to be punished
by such fine or imprisonment or both, as the jury may determine:
_Acts_ (1826-27), 22. This law was still in force in 1841: TATE,
_Digest_ (2d ed.), 500, where the editor cites Vaughan's opinion
in Hill _v._ Good, 2 _Virginia Cases_, 61. But the restriction
does not appear in _Code of Va._ (1849), 470, 471 (degrees).
_Cf._ LEIGH, 17.]

[Footnote 1326: Act of March 15, 1860: _Acts of the Assembly_
(1859-60), 188, 189. In West Virginia until later a man was not
permitted to marry his brother's widow: see _Acts_ (1872-73),
chap. 161, p. 503, where the restriction is removed.]

[Footnote 1327: _Laws of Md._ (1790), chap. xx, repealing the act
of 1777, chap. 12, sec. 1, _Laws of Md., 1763-87_ (1787), where
these marriages are "void."]

[Footnote 1328: _Louisiana Acts_ (1827), 4.]

[Footnote 1329: This dual restriction appears in COBB'S _Analysis
of Stat. of Ga._ (New York, 1846), 290, 291; but it does not seem
to be retained in _Code of Ga._ (1861), 331 (prohibited degrees
of affinity), and there is no later statute on the subject.]

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

[Footnote 1330: In Alabama such marriages are incestuous and
must be annulled by the court on conviction; but the issue born
before annulment is legitimate: _Code_ (1897), 828; in Arizona,
Arkansas, Georgia, Indian Territory, Kentucky, Mississippi, and
New Mexico they are incestuous and void or voidable after decree:
_Rev. Stat. of Ariz._ (1887), 371; _Digest of Ark._ (1894), 1126;
also _Rev. Stat. of Ark._ (1838), 536; _Code of Ga._ (1896), II,
222; _Kentucky Stat._ (1894), 763; _Comp. Laws of N. M._ (1897),
406; _Ann. Code of Miss._ (1892), 677. In Maryland, District of
Columbia, Missouri, and North Carolina they are absolutely void
or voidable after decree: _Code of Md._ (1888), I, 973, 974;
_Comp. Laws of D. C._ (1894), 271; _Rev. Stat. of Mo._ (1899),
I, 1036; _Code of N. C._ (1883), I, 688, 689. But the laws of
New Mexico, while declaring these marriages "absolutely void,"
provides in sec. 1430 that they shall not be "declared void
except by decree of the district court;" and the North Carolina
act has the condition that no marriage followed by cohabitation
and birth of issue shall be declared void after the death of
either of the parties for any of the causes stated, except in
case of unions of whites with negroes or Indians to the third
generation. In Virginia prohibited marriages, if solemnized in
the state, are void after decree, or when within the forbidden
degrees, from the time of conviction for incest; and the law
of West Virginia is similar: _Code of Va._ (1887), 560; _Code
of W. Va._ (1891), 656, 661. See also _Code of Tenn._ (1884),
608; _Rev. Stat. of Fla._ (1892), 820; _Rev. Civil Code of La._
(1888), 61; _Rev. Stat. of S. C._ (1894), I, 751; and compare
WRIGHT, _Report_, 35-45.]

[Footnote 1331: For example, in Virginia the penalty for marriage
within the forbidden degrees is imprisonment not exceeding six
months or a fine of not more than $500: _Code_ (1887), 898; in
West Virginia, one or both of these penalties: _Code_ (1900),
972; in Georgia, imprisonment in the penitentiary from one to
three years: _Code_ (1896), III, 116; in Maryland incest is
a felony punishable by one to ten years' imprisonment at the
discretion of the court: _Code_ (1888), I, 511; in Missouri the
penalty for the same crime is not exceeding seven years in the
penitentiary: _Rev. Stat._ (1889), II, 907; in the District
of Columbia, for marriage within the "three degrees of lineal
direct consanguinity, or within the first degree of collateral
consanguinity," the penalty for each is "five hundred pounds
current money ($1333.33-1/3);" and within any of the other
forbidden degrees of consanguinity or affinity, it is "two
hundred pounds current money ($533.33-1/3)": _Comp. Stat. of D.
C._ (1894), 272.]

[Footnote 1332: _Code of Va._ (1887), 560; _Code of W. Va._
(1891), 612, 918; _Code of Ga._ (1882), 287, 288.]

[Footnote 1333: Formerly in Maryland any person marrying out of
the state to evade the law was fined 500 pounds: KILTY, _Laws_,
1777, chap. 12, sec. 6. Now each of the persons must pay $100:
_Code_ (1888), 523.]

[Footnote 1334: MOORE, _Code of D. C._ (1902), 266.]

[Footnote 1335: _Kentucky Stat._ (1894), 764; _ibid._ (1901),
823.]

[Footnote 1336: In Mississippi marriages out of the state, to
avoid penalties of forbidden degrees, are declared void: _Ann.
Code of Miss._ (1892), 677.]

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

[Footnote 1337: See the lists in WRIGHT, _Report_, 35-45. On
these marriages I have not found changes since 1887, the date of
that compilation.

In Virginia bigamy was formerly punished by death: see the act of
1792, in _Acts of Gen. Assem._ (1794), 205; now the penalty is
three to five years' imprisonment: _Code_ (1887), 680; in West
Virginia it is one to five years in the penitentiary: _Code_
(1891), 918; in Florida, not exceeding five years in state's
prison, or not exceeding one year in the county jail, or a fine
of not more than $500: _Rev. Stat._ (1892), 820; in Missouri, not
exceeding five years in the penitentiary, or less than six months
in the county jail, or not less than $500, or by both a fine of
not more than $100 and imprisonment in the county jail for not
less than three months: _Rev. Stat._ (1899), I, 608, 609. Bigamy
is prohibited in _Rev. Civil Stat. of Tex._ (1888), I, 877;
WHITE, _Penal Code_ (1901), 188; _Digest of Ark._ (1894), 1126.]

[Footnote 1338: In Texas they are prohibited and punished "when
the female is abducted or forced into marriage;" but they are
voidable when the license has been fraudulently obtained: WRIGHT,
_Report_, 43; _Rev. Civil Stat. of Tex._ (1888), I, 877, note;
see Robertson _v._ Cole, 12 _Texas_, 356. _Cf._ WILSON, _Supp. to
Criminal Statutes_ (1900), 242, 243.]

[Footnote 1339: See, for example, _Kentucky Stat._ (1894), 764;
_ibid._ (1901), 822; _Digest of Ark._ (1894), 1126; MOORE, _Code
of D. C._ (1902), 265.]

[Footnote 1340: In North Carolina marriages are void when
either person is "incapable of contracting from want of will or
understanding": _Code_ (1883), I, 688, 689; in South Carolina
they are void or voidable when lacking consent of either party
or for "any other cause going to show that at the time said
supposed contract was made it was not a contract," provided not
consummated by cohabitation: _Rev. Stat._ (1894), I, 752.]

[Footnote 1341: _Kentucky Stat._ (1894), 763; _Rev. Sta._, of
S. C. (1894), I, 750-52; _Code of Ga._ (1896), II, 222; _Code
of Va._ (1887), 560; _Code of W. Va._ (1891), 612; _Code of N.
C._ (1883), I, 688, 689; _Digest of Ark._ (1894), 1126; _Code of
Ala._ (1896), I, 828; _Comp. Laws of N. M._ (1897), 406, 407.]

[Footnote 1342: In Kentucky marriages are void or voidable when
not solemnized or contracted in the presence of an authorized
person or society; but they are not so invalid if consummated
with the belief of the parties or either of them that they have
been lawfully married: WRIGHT, _Report_, 39.

The Louisiana act of 1807 makes one who is deaf and dumb from
"nativity" incapable of marriage, "unless it be previously proved
to the satisfaction of the judge ... that such person is capable
of giving a rational consent." So also "criminals definitively
sentenced to death" are incapable until pardoned; and "persons
sentenced to whipping, imprisonment, pillory, or other infamous
punishment" are prohibited from marrying, "until such punishment
has been inflicted, or the offender pardoned."--LISLET, _Gen.
Digest_ (1828), II, 4, 5.]

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

[Footnote 1343: By the statute of Tennessee marriage is
prohibited between white persons and "negroes, mulattoes, or
persons of mixed blood, descended from a negro to the third
generation inclusive, or their living together as man and wife."
Violation of the act is made a felony punishable by confinement
in the penitentiary for a period of one to five years; though,
on recommendation of the jury, the court may substitute a fine
and imprisonment in the county jail: _Code_ (1884), 608; _ibid._
(1896), 1038.

The law of Alabama is in substance the same; although to the
clause prohibiting intermarriage "to the third generation
inclusive," the _Code_, sec. 4018, when affixing the penalty,
adds the words, "though one ancestor of each generation was
a white person": see _Code of Ala._ (1897), II, 381; WRIGHT,
_Report_, 36.]

[Footnote 1344: In 1810 the Virginia act of 1753, chap. 2, secs.
14, 15, for the prevention of that "abominable mixture and
spurious issue," was still in force: _Stat. Law of Ky._ (1810),
II, 572.]

[Footnote 1345: In Georgia and Florida a person of color is one
who has one-eighth negro or African blood in his veins: _Code of
Ga._ (1882), 356; _cf. ibid._ (1896), II, 4, 224; _Rev. Stat. of
Fla._ (1892), 681, 111.]

[Footnote 1346: In North Carolina, furthermore, a negro may not
marry a Croatan Indian: WRIGHT, _Report_, 42.

The code of this state is almost vindictive in its temper.
The marriages between whites and negroes or Indians "shall be
absolutely void to all intents and purposes, and shall be so
held and declared by every court at all times, whether during
the lives or after the deaths of the parties thereto; and it
shall not be lawful for the issue of any such marriage to be
legitimated to the supposed father."--_Code of N. C._ (1883), I,
514.]

[Footnote 1347: But see _Ann. Code of Miss._ (1892), 677: The
marriage of a white person "with a negro, mulatto, or Mongolian
or person who shall have one-eighth or more negro or Mongolian
blood" is declared "unlawful and void."]

[Footnote 1348: _Rev. Stat. of Ariz._ (1887), 371; _ibid._
(1901), 809; _Ann. Code of Miss._ (1892), 677. In general, for
the provisions regarding miscegenation, see also _Rev. Stat. of
Fla._ (1892), 681; _Digest of Ark._ (1894), 1126; _Ann. Stat. of
Ind. Ter._ (1899), 507; _Kentucky Stat._ (1894), 763; _Louisiana
Acts_ (1894), 105; _Rev. Stat. of Mo._ (1889), I, 908; _ibid._
(1899), I, 610; _Code of Va._ (1887), 560; _Code of W. Va._
(1900), 660, 661, 972 (void from decree); _Maryland Code_ (1888),
I, 523; _Code of N. C._ (1883), I, 514; _Rev. Stat. of S. C._
(1894), I, 753; _Gen. Laws of Tex._ (1891), I, 878; the same in
1837: _Laws of Republic of Tex._ (1838), 234, 235; _Sess. Laws of
Okla._ (1897), 212.]

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

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

[Footnote 1349: Illegitimate children are legitimized by the
marriage of parents and acknowledgment of the father in Alabama,
_Code_ (1887), 530; _ibid._ (1897), sec. 364; Arizona, _Rev.
Stat._ (1887), 371, 372; Florida, _Rev. Stat._ (1892), 686;
Georgia, _Code_ (1896), II, 254; Kentucky, _Stat._ (1894), 545;
Maryland, _Code_ (1888), II, 813; Mississippi, _Ann. Code_
(1892), 172; Missouri, _Rev. Stat._ (1899), I, 740; Virginia,
_Code_ (1887), 620; West Virginia, _Code_ (1891), 666.

Penalty or prosecution for seduction is suspended by marriage of
parents in Arizona, _Rev. Stat._, as cited; Kentucky, _Stat._, as
cited; Missouri, _Rev. Stat._ (1899), I, 548; New Mexico, _Comp.
Laws_ (1897), 344; Texas, Act of March 25, 1899: _Gen. Laws_, 66:
and Virginia, _Code_, as cited. _Cf._ WRIGHT, _Report_, 27.

Prosecution for seduction is also suspended on marrying the woman
in Arkansas; but it is specially provided that if at any time
thereafter the accused shall wilfully and without such cause as
now constitutes a legal ground of divorce desert and abandon the
female, then the prosecution shall be continued and proceed as
though no marriage had taken place. In such cases the female may
be a witness: _Acts_ (1899), 23, 24.]

[Footnote 1350: _Laws of N. M._ (1897), sec. 1346, pp. 391, 392,
_Cf._ the law of Arizona, _Rev. Stat._ (1887), 371, 372.]

[Footnote 1351: _Code of W. Va._ (1891), 612; _ibid._ (1900),
661.]

[Footnote 1352: _Code of Ga._ (1882), 391; _ibid._ (1896), II,
221.]

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

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

[Footnote 1353: For the act of 1748, see _Acts of the Assem._
(1769), 246-48.]

[Footnote 1354: Act of May, 1780, in HENING, _Statutes_, N,
361-63. Compare the acts of 1783 and 1784, where the system of
banns or license is retained, _ibid._, XI, 281, 282, 503-6. Later
the fee was fixed at $1: TATE, _Digest_ (1823), 417.]

[Footnote 1355: Act of Dec. 22, 1792: _Acts of the Gen. Assem._
(1794), 204, 205.]

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

[Footnote 1356: Compare the law of 1794: _Acts of Gen. Assem._
(1794), 331, 332; _Rev. Code_ (1819), 393-403. But in 1803 the
justice is no longer required to sign and direct the license:
_Acts of Gen. Assem._, 372 (act to take effect May 1, 1797).
In 1832 the consent of the mother is declared sufficient to
authorize license to minors when there is no father or guardian:
_Acts_ (1831-32), 27; and in 1848 so much of the law of 1832 was
repealed "as requires the consent of the mother of any infant
desiring a marriage license to be certified under seal;" and
henceforth in all cases the written consent of parents may be
attested by one witness. When for any reason the clerk's office
is vacant license may be issued by the "senior justice of the
peace."--_Acts of the Assem._ (1847-48), 165.]

[Footnote 1357: _Ibid._]

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

[Footnote 1358: IREDELL-MARTIN, _Public Acts, 1715-1803_ (1804),
act of 1778, chap. 7, I, 253. Compare _Laws of N. C._ (1821), I,
129; _Rev. Stat._ (1837), I, 386; and _Laws_ (1871-72), 328-43.
The register of deeds takes the place of the clerk of the county
court as issuer of license in 1872. By the act of 1778 the bond
necessary for license had been fixed at 500 pounds "lawful
money."]

[Footnote 1359: SCOTT, _Laws of Tenn._ (1821), Index at
"Marriage": _Stat. Laws of Tenn._ (1831), 219, 220. But oral
banns do not appear in _Code of Tenn._ (1858), 480-82.]

[Footnote 1360: LITTELL, _Stat. Law of Ky._ II (1810), 64-69.]

[Footnote 1361: See act of April 24, 1805: _Acts of a Pub. and
Gen. Nature_ (1842), I, 66.]

[Footnote 1362: Act of Jan. 4, 1825: _Laws of the State_ (1825),
I, 527. Persons or societies solemnizing marriages are required
to keep a record; and a general record must also be made by the
registrar of the county. The provision of 1825 is repeated in
_Rev. Stat._ (1845), 730.]

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

[Footnote 1363: Compare the act of 1777, chap. 12, secs. 5-12:
see KILTY, _Laws_; or _Laws of Md._ (1787), at sections cited;
and POE, _Code_ (1888), I, 975.]

[Footnote 1364: _Comp. Stat. of D. C._ (1894), 272.]

[Footnote 1365: _Digest of Ga._ (1801), 314. But by the
constitution of the state (1798), Art. III, sec. 6, _ibid._, 40,
the clerk of the inferior courts of the county, with powers of a
court of ordinary or register of probates, shall issue marriage
licenses.]

[Footnote 1366: _Digest_ (1801), 733.]

[Footnote 1367: See HOTCHKISS, _Codification_, (1845), 329; or
COBB, _Digest_ (1851), 282, 819.]

[Footnote 1368: Paragraph 1658, pp. 331, 332, of the _Code of
Ga._, assented to Dec. 19, 1860, to take effect Jan. 1, 1862,
provides for obtaining license, and "publication of the banns
of marriage in a neighboring church, in the presence of the
congregation, for at least three Sabbath days prior to its
solemnization," all other marriages being declared invalid.
_Cf._ _Acts_ (1863-64), 48, editorial note. The change worked
confusion. The preamble of the act of Dec. 14, 1863, declares
that the "innovation" will "have the effect of giving rise to
perplexing questions of legitimacy of children, and rights of
property; and to domestic unhappiness." Therefore the paragraph
is repealed, and marriages already solemnized under it are
validated: _ibid._, 48.

For the present law see _Code of Ga._ (1896), II, 223, 221.]

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

[Footnote 1369: Act of 1807: LISLET, _General Digest_ (1828), II,
6-8.]

[Footnote 1370: MERRICK, _Rev. Civil Code_ (1900), I, 21-25. But
if objection be made on oath, the marriage may be suspended for
ten days by the judge.]

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

[Footnote 1371: In West Virginia, where there is no lay
celebration, the form of license is as follows: "To any person
licensed to celebrate marriages: You are hereby authorized to
join together in the holy state of matrimony, according to the
rites and ceremonies of your church or religious denomination,
and the laws of the state of West Virginia, ---- ---- and ----
----. Given under my hand, as clerk of the county court of ----,
this ---- day of ----."--_Code_ (1891), 607.]

[Footnote 1372: When either person is under sixteen, a license
will not be issued without written consent of parent or guardian:
_Acts of Tenn._ (1899), 36.]

[Footnote 1373: In Baltimore city license is issued by the clerk
of the court of common pleas: _Code_ (1888), I, 975; in St.
Louis, by the city recorder: WRIGHT, _Report_, 49 n. _cc._]

[Footnote 1374: _Rev. Stat. and Codes of Porto Rico_ (1902),
807-9.]

[Footnote 1375: The _Ann. Code of Miss._ (1892), 677 ff., is
silent as to bond.]

[Footnote 1376: In Missouri, failure to keep a record or
solemnization without license is a misdemeanor. The transgressor
must pay a fine of not exceeding $500, and in addition he is
liable to a civil action by the parent or other person to whom
"services" are due, to recover not more than $500: _Laws_ (1881),
161; _Rev. Stat._ (1889), II, 1606; _ibid._ (1899), I, 1037. In
Alabama the fine is $1,000, one-half to the state and one-half
to the person suing: _Code_ (1896), I, 829; in North Carolina,
solemnization without license or failure to make return is a
misdemeanor, subject to a fine of $200, payable to anyone who
sues: _Code_ (1883), I, 691, 692; in Kentucky, a fine of not
more than $1,000, or imprisonment from one to twelve months, or
both: _Stat._ (1894), 766; in Arkansas, a high misdemeanor and a
fine of not less than $100: _Digest_ (1894), 1127; in Tennessee,
a misdemeanor and a fine of $500: _Code_ (1896), 1040-41; in
Georgia, a fine of $500: _Code_ (1896), II, 223; in Virginia
and West Virginia, forfeiture of bond: _Code of Va._ (1887),
557; _Code of W. Va._ (1891), 608; in Maryland, a fine of $100
to $500: _Laws_ (1894), 124; in Texas, a misdemeanor and a fine
of $50 to $500: Act of June 5, 1900: _Gen. Laws_, 307. In the
District of Columbia for marriage without banns or license each
of the parties and the person solemnizing are liable to a fine
of 500 pounds current money: _Comp. Stat._ (1894), 272; MOORE,
_Code_, 266.]

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

[Footnote 1377: Arkansas and Indian Territory have a peculiar
provision. The person obtaining a license is required to report
"the same to the office of the clerk of the county court within
60 days from the date of such license; and if the same be duly
executed and officially signed by some person authorized by law
to solemnize marriage," the bond of the person so applying for
the license shall be null and void, otherwise of full force:
_Digest_ (1894), 1129; _Ann. Stat. of Ind. Ter._ (1899), 510.]

[Footnote 1378: Return is made to the judge issuing the license
in Porto Rico; to the proper officer in the county where the
marriage is celebrated in Missouri, Mississippi, and New Mexico;
in all other cases, in the county where the woman resides.]

[Footnote 1379: The Virginia law requires the clerk to deliver to
the person entitled the license and also a certificate containing
the names of the parties, date of the proposed marriage, etc.
The person solemnizing is to return the license and the clerk's
certificate, together with his own certificate of the time and
place of the marriage: _Code_ (1887), 556.]

[Footnote 1380: This is the form of indorsement required by
the Tennessee law: "I solemnized the rite of matrimony between
the above (or within) named parties, on the ---- day of ----,
18--."--_Code_ (1896), 1039.]

[Footnote 1381: _Comp. Stat._ (1894), 274, 273; MOORE, _Code_,
267.]

[Footnote 1382: _Comp. Stat._ (1894), 273.]

[Footnote 1383: _Ann. Code of Miss._ (1892), 678.]

[Footnote 1384: _Rev. Stat. of Mo._ (1889), II, 1605: _ibid._
(1899), I, 1037.]

[Footnote 1385: _Code of Va._ (1887), 557; _Code of W. Va._
(1891), 608; _ibid._ (1900), 656, 657.]

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

[Footnote 1386: _Code of Md._ (1888), I, 975, 976: _Laws of Mo._
(1895), 222; MOORE, _Code of D. C._ (1902), 267: _Rev. Stat. and
Codes of Porto Rico_ (1902), 810.]

[Footnote 1387: _Digest of Ark._ (1894), 1129.]

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

[Footnote 1388: _Code of Ala._ (1897), I, 828; _Ann. Code of
Miss._ (1892), 678.]

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

[Footnote 1389: Except apparently in Tennessee.]

[Footnote 1390: Act of Feb. 3, 1900: _Acts_ (1899-1900), 283,
284.]

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

[Footnote 1391: In West Virginia "the registration of births,
marriages, and deaths of white and colored shall be kept separate
and distinct."--_Code_ (1900), 659. _Cf._ _Ky. Gen. Stat._
(1887), 204; _Digest of Ark._ (1894), 320, 321; _Code of Va._
(1887), 130, 558.