Chapter XVI (4)

For the entire discussion of matrimonial administration in these
states, as above given in subsec. _c_), compare _Code of Ala._
(1897), I, 827 ff.; _Rev. Stat. of Ariz._ (1887), 371, 372;
_Digest of Ark._ (1894), 1126 ff.; _Rev. Stat. of Fla._ (1892),
679 ff.; _Code of Ga._ (1896), II, 221 ff.; _Kentucky Stat._
(1894), 765, 766; _Rev. Civil Code of La._ (1888), 60 ff.; _Code
of Md._ (1888), I, 975 ff.; _Ann. Code of Miss._ (1892), 677,
678; _Rev. Stat. of Mo._ (1899), I, 1035 ff.; _Comp. Laws of N.
M._ (1897), 403 ff.; _Code of N. C._ (1883), I, 690-92; _Code
of Tenn._ (1884), 609-11; _Gen. Laws of Tex._ (1891), 96; _Rev.
Civil Stat. of Tex._ (1888), I, 877, 878; _Code of Va._ (1887),
555-60; _Acts_ (1900), 283, 284; _Code of W. Va._ (1900), 654
ff., 934; also _Acts of Leg._ (1887), chap. 64; _Ann. Stat. of
Ind. Ter._ (1899), 507 ff.; _Session Laws of Oklahoma_ (1897),
208 ff.; _Comp. Stat. of D. C._ (1894), 270-75.]

III. THE MIDDLE AND WESTERN STATES[1392]

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

[Footnote 1392: In this section the laws of the following
twenty-five districts and states are considered: Alaska,
California, Colorado, Delaware, Idaho, Illinois, Indiana, Iowa,
Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New
Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South
Dakota, Utah, Washington, Wisconsin, and Wyoming.]

[Footnote 1393: Act of April 9, 1813: _Laws of New York_ (1813),
II, 201, 202.]

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

[Footnote 1394: _Rev. Stat., Passed 1827-28_ (Albany, 1829), II,
139, 140.]

[Footnote 1395: A false statement of either person is punishable
as perjury: _Laws_ (1873), chap. 25, pp. 19, 20; also in _Rev.
Stat._ (1889), IV, 2597.]

[Footnote 1396: To the leader of the Society for Ethical Culture
in the city of New York and the justices and the judges of
all courts of record: _Laws_ (1888), chap. 78, pp. 122, 123,
superseding an amendment to _Rev. Stat._ (1829) authorized by
_Laws_ (1887), chap. 77, pp. 89, 90, and _Laws_ (1877), chap.
430; _Rev. Stat._ (1889), "supplement" in IV, 2596, 2597.]

[Footnote 1397: _Laws_ (1887), chap. 77, p. 90; also in _Rev.
Stat._ (1889), IV, 2598.]

The usual evils followed: but an effective remedy seems at last to have been provided. By an act of April 11, 1901, a marriage must be solemnized either (1) by a clergyman or minister of any religion, or the leader of the Society for Ethical Culture in the city of New York; (2) a mayor, recorder, alderman, police justice, or police magistrate of a city; (3) a justice or judge of a court of record or municipal court, or a justice of the peace; or (4) by "a written contract of marriage signed by both parties, and at least two witnesses who shall subscribe the same, stating the place of residence of each of the parties and witnesses and the date and place of marriage, and acknowledged by the parties and witnesses in the manner required for the acknowledgment of a conveyance of real estate to entitle the same to be recorded. Such contract shall be filed within six months after its execution in the office of the clerk of the town or city in which the marriage was solemnized." After the first day of January, 1902, no marriage claimed to have been contracted otherwise than in this article provided "shall be valid for any purpose whatever." The act, however, declares the validity of every lawful union formed "in the manner and pursuant to the regulations" of a religious society to which either person belongs.[1398] Thus with the beginning of the new century the "common-law" marriage appears to have finished its long course in New York state.

[Footnote 1398: _Laws of N. Y._ (1901), II, 933-35.]

The statutes of that commonwealth relating to contract or solemnization are extended to Indians residing in the state; although it is especially provided that those "who have heretofore or shall hereafter contract marriage according to the Indian custom or usage, and shall cohabit as husband and wife, shall be deemed lawfully married. Indian marriages may be solemnized by peace-makers within their jurisdiction with the same force and effect as by a justice of the peace."[1399]

[Footnote 1399: Act of May 18, 1892: _Rev. Stat._ (supplemental
volume, 1892), V, 3742.]

For New Jersey the first matrimonial law of the period under review is that of March 4, 1795, repealing an act of March 24, 1719. By this law every justice of the peace and "every stated and ordained minister" in the commonwealth is given power to perform the wedding ceremony; and, in addition, every religious society is permitted to employ its own usage in the marriage of its members; but such contracts are to be recorded in the same way as those before a minister or magistrate.[1400] Amendments were made from time to time down to 1882, when an act appears which in nearly all of its leading provisions is still in force.[1401] Marriage may now be solemnized in the state by every judge of a court of common pleas; any justice of the peace,[1402] mayor, recorder, or police justice; and by every stated and ordained minister of the gospel. In addition, every religious society in the state may join together in wedlock persons one or both of whom are its members; and by a later enactment authority is conferred upon the chief justice and the associate justices of the supreme court, the chancellor and every vice-chancellor of the equity courts, in as full measure "as if the marriage were solemnized by a stated and ordained minister of the gospel."[1403] The marriage of a minor may not be solemnized without certificate of parental consent, whose genuineness must be proved by the oath of at least one witness of full age and discretion.[1404]

[Footnote 1400: _Laws of the State of N. J._ (1800), 158, 159.]

[Footnote 1401: _Pub. Laws_ (1882), 203; retained in _Gen. Stat.
of N. J._ (1896), II, 2005. See for earlier acts amended _Pub.
Laws_ (1877), 168.]

[Footnote 1402: A justice of the peace may solemnize a marriage
out of the county for which he is commissioned: Pearson _v._
Howey, 6 HALSTED, _N. J. Reports_, 12.]

[Footnote 1403: Act of June 13, 1890: _Pub. Laws_ (1890), 439;
_Gen. Stat._ (1896), II, 2006.]

[Footnote 1404: _Pub. Laws_ (1889), 139; _Rev. Stat._ (1896), II,
2005.]

Pennsylvania has shown remarkable conservatism in her regulation of the marriage celebration. After two centuries, the act of 1701, taking its form in that of 1693, is with slight alteration still in force. It contains no precise designation of the persons who may perform the ceremony. Its spirit is revealed in the dictum of George Fox, elsewhere quoted: "We marry none, but are witnesses of it." Self-betrothal and self-_gifta_, as in early mediæval days, are still practiced by the Quaker descendants of the ancient Teutons. In 1885 a statute expressly authorizes a man and a woman to solemnize their own marriage.[1405] This provision and a later requirement of license in all cases are the only legislative changes affecting the celebration since 1730, when certificate of parental consent was demanded. Now, as in 1701, the bride and groom, taking each other by the hand, are permitted to plight their vows in the presence of at least twelve witnesses, one of whom being a justice of the peace; although the courts have decided, as indeed they could hardly fail to do, that this provision is merely "directory" and not mandatory;[1406] for the original enactment declares that it shall not extend "to any that marry in their own society in the absence of a justice of the peace."[1407] Such is the liberty permitted by the law; but the practice of the majority of the people probably does not differ much from the common usage elsewhere in the United States. From an act of 1849, still retained in the statute-book, one may perceive who are the officers usually called upon to perform or witness the wedding ceremony. "Every person in whose care or profession may be found the record kept by any minister of the gospel, judge, alderman, or justice of the peace, of any marriage contract solemnized" by or before the same shall on application, and the payment or tender of a fee of fifty cents, deliver to the applicant a full transcript of such record, with a proper certificate of its correctness.[1408]

[Footnote 1405: _Laws_ (1885), No. 115, sec. 1.]

[Footnote 1406: Rodebaugh _v._ Sanks (1833), 2 WATTS, 9;
Fulkerson _v._ Day (1881), 15 _Phila. Reports_, 638. The
provision of 1701 requiring the justice to subscribe the
publication (or certificate) is not obsolete: Helffenstein _v._
Thomas (1835), 5 RAWLE, _Reports_, 209.]

[Footnote 1407: Above, chap. xii, sec. iii.]

[Footnote 1408: Act of April 10: _Laws of the Gen. Assembly_
(1849), 549; retained in PEPPER AND LEWIS, _Digest_ (1896), II,
2879.]

There is a sharp contrast between the broad liberalism of Pennsylvania and the narrow, even reactionary, policy of Delaware, whose territory also once formed a part of the proprietary domain of William Penn. The act of January 29, 1790, is decidedly retrogressive. Its keynote is pitched in the preamble, "Whereas," we are assured, "matrimony is an honorable institution of Almighty God, designed for the mutual convenience and happiness of mankind; and sober, discreet, and advised union of persons in matrimony is the duty of every good citizen, and the unadvised, clandestine, loose, and unseemly proceedings in marriage, tend to introduce a contempt and irreverent regard for that holy institution, and a dissoluteness of manners among the thoughtless part of the community;" furthermore, since evils may arise "to persons secretly and improperly uniting themselves ... without knowledge of their parents, guardians, or friends; and the causes are now removed, which rendered it convenient to have marriages celebrated by justices of the peace": therefore, under penalty of one hundred pounds lawful money for disobedience, it is declared that marriages between white persons may be celebrated only by "ministers or preachers of the gospel, appointed or ordained according to the rites and ceremonies of their respective churches, or by the religious society to which they belong" according to its established mode and usage.[1409] Civil marriage was thus completely abrogated, to be grudgingly restored only after more than fourscore years. Since 1874 the mayor of Wilmington has had a share in the matrimonial business, otherwise the law of 1790 still governs the nuptial celebration.[1410]

[Footnote 1409: Act of Jan. 29, 1790: _Laws of the State of Del._
(1797), II, 972, 973.]

[Footnote 1410: _Rev. Stat. of Del._ (1874), 473; also in _Rev.
Stat._ (of 1852, as amended to 1893), 594. By the act of Feb. 25:
_Laws of Del._ (1875), 260, the mayor of Newcastle was granted
the same power, but it seems not to be continued in the present
law.]

The foundation of Marietta in 1788, and the subsequent organization of the first territory of the United States, under the ordinance of 1787, constitutes an event scarcely second in significance to any in the whole course of American history. It marks the beginning of distinctively western institutions, although these, especially as regards the local political organisms, are in many respects predetermined and molded by those of the two old middle states, New York and Pennsylvania.[1411] The laws adopted or enacted for the region of Ohio, both before and after that state was admitted to the Union in 1802, form in principle and often in detail the models or prototypes on which rest the legal systems of the numerous commonwealths filling the vast expanse of territory stretching from the Alleghanies to the Golden Gate. This is surely true in general of the laws of marriage; although Ohio, in still clinging to the optional plan of civil license or oral ecclesiastical banns, has retained an archaic feature which finds little imitation in the other western states.

[Footnote 1411: On the significance of the settlement of
Marietta, and the influence of the middle states and provinces,
see HOWARD, _Local Const. Hist._, I, 408, 411, 387, _passim_.]

By a law of the Northwestern Territory in 1788, after banns, license, or notice by posting, persons may be joined in wedlock before any judge of the general court, or of the courts of common pleas in their respective districts, or before a minister of any religious society or congregation where he is settled; and the Quakers are especially guaranteed the enjoyment of their peculiar rites.[1412] Four years later the same authority is granted to all justices of the peace.[1413] In 1803 a new act appears. Now justices of the peace may perform the ceremony in their proper counties; Quakers and Menonists may use their own rites; and every "ordained" minister of any society or congregation is given the same authority, on presenting his credentials to the county court of common pleas,[1414] and receiving a license to that effect. But the function of such minister is no longer restricted to his own congregation; he may act anywhere in the state.[1415] The law was thus practically complete. Under the present statute of Ohio[1416] any ordained minister after obtaining a license from the county judge of probate; any justice of the peace in his county; any religious society "agreeably to the rules and regulations of their respective churches;" or the mayor of any city or incorporated village, in the county where it wholly or partly lies, is authorized to join persons in wedlock. A clergyman still has authority throughout the state; but since 1822, in each case, before he may legally act, it is necessary to exhibit his license to the court of the county where he intends to solemnize a marriage.[1417] When the marriage is of a minor, without the authority of a license, the person solemnizing is required to satisfy himself that banns have been duly published, and that the consent of parent or guardian has been obtained.[1418]

[Footnote 1412: Act of 1788: CHASE, _Stat. of Ohio and the
Northwestern Ter._, I, 101, 102.]

[Footnote 1413: Act of Aug. 1, 1792: CHASE, _op. cit._, I, 126.]

[Footnote 1414: After 1810, at any rate, it is the county court
of common pleas: CHASE, _op. cit._, I, 672 (1810); II, 1211
(1822), 1407 (1824); SWAN, _Stat. of Ohio_ (1853), 569-71.]

[Footnote 1415: Act of April 4, 1803, repealing the two preceding
laws: CHASE, _op. cit._, I, 354, 355.]

[Footnote 1416: _Ann. Rev. Stat. of Ohio_ (1897), II, 3016.]

[Footnote 1417: The act of June 11, 1822: CHASE, _op. cit._, II,
1211, requires the minister to produce his license to the clerk
of the county court of common pleas, who shall "enter the name
of such minister upon record as a minister of the gospel duly
authorized to solemnize marriage within the state, and shall note
the county from which said license" was issued. At present the
license must be presented to the county court of probate.]

[Footnote 1418: _Ann. Stat. of Ohio_ (1897), II, 3017; _cf._
WRIGHT, _Report_, 56, 57.]

Indiana, admitted to the Union in 1816, Illinois in 1818, Michigan in 1837, and Wisconsin in 1848, were all included in the "Territory northwest of the Ohio," and, so far as they had inhabitants, were therefore originally affected by the laws and government established under the ordinance of 1787. Gradually, as each portion became a separate territory or an independent state, the early statutes, already considered in connection with Ohio, were retained, modified, or superseded. So far as the marriage celebration is concerned, the course of history in Indiana and Illinois need not here be dwelt upon. In the former commonwealth the ceremony may now be conducted by all ministers of the gospel and priests of every denomination, throughout the state; by judges of all courts of record, justices of the peace, and mayors of cities, within their respective counties; and by the Friends and German Baptists according to the rules of those societies. But no marriage, legal in other respects, is deemed void "on account of the incapacity of the person solemnizing the same."[1419] The present law of Illinois shows several variations. The ceremony may be performed either by a minister of the gospel in regular standing with the church or society to which he belongs; by a judge of any court of record; a justice of the peace; any superintendent of a public institution for the education of the deaf and dumb in the state; or, if either of the persons is a member of the "religious society known as Friends or Quakers, they may be lawfully married by making known their intention ... to a standing committee of an official meeting, at least one week before said marriage ... and by appearing in a public meeting or private gathering, before official witnesses of said body, with a certificate duly setting forth" their names and residences, with those of the parents, if living. This certificate, duly signed by the contracting persons and by the official witnesses, must be publicly read by one of the witnesses, and afterward entered in the records of an organized meeting of the society. In addition, the law guarantees every religious society the use of its own rites.[1420]

[Footnote 1419: _Laws of the State of Ind._ (1897), 129 (act of
March 4, 1897).]

[Footnote 1420: Act of May 30: _Laws_ (1881), 112; retained in
HURD, _Rev. Stat._ (1898), 1068; _cf._ _Rev. Stat._ (1845), 343.]

By the first marriage law of Michigan Territory, adopted in 1805 from the statutes of Massachusetts, so "far as is necessary and suitable to the circumstances," the wedding ceremony may be performed by justices of the peace and regular ministers of the gospel, when at least one of the persons marrying is an "inhabitant" or "resident" of the district where such clergyman or magistrate dwells; and there is the usual clause securing to all religious societies their peculiar usage or customs.[1421] In 1820 the contemporary law of Ohio was adopted, authorizing celebration, after license, banns, or posting, by justices of the peace in their own counties, or by ministers of the gospel in regular communion with any society of Christians according to the forms of the church to which they respectively belong.[1422] The same privilege is expressly reserved to Quakers and Menonists in 1827;[1423] while in 1832 "ordained ministers" in regular communion with their societies, "but not otherwise," may perform the ceremony, provided their credentials are first entered "of record" with the county clerk.[1424] The present statute is in substance nearly the same, except that the "ordained" minister, who "continues to preach the gospel" in the state, is not required to file his credentials as by the earlier acts. Non-resident clergymen are also authorized to perform the ceremony in the state, provided a proper record be kept and a return duly made according to law; but in all cases the person conducting the celebration is commanded first to examine at least one of the persons on oath as to the legality of the intended contract.[1425]

[Footnote 1421: Act of Aug. 2, 1805: _Laws of the Ter. of Mich._
(1871-84), I, 30 (from the "Woodward Code"): repeated in the
"Cass Code" (1816): _ibid._, I, 202, 203.]

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

[Footnote 1423: Act of April 12, 1827: _Laws of the Ter._, II,
412-14.]

[Footnote 1424: Act of May 31, 1832: _Laws of the Ter._, III,
914, 915.]

[Footnote 1425: Act of July 31: _Laws_ (1873), 20; also in
HOWELL, _Gen. Stat._ (1882), II, 1619, 1620. It is expressly
provided that marriage may be solemnized on Sunday: _ibid._,
I, sec. 2015; and in certain extreme cases the county judge of
probate may perform the ceremony: see the acts of 1897 and 1899,
referred to in subsec. _c_) below.]

Wisconsin, whose law on the subject has been but slightly altered since 1839, authorizes solemnization by justices of the peace or court commissioners in the counties where they are elected; and throughout the state by any judge of a court of record, or by a minister or priest in regular communion with any religious society, so long as he continues to preach the gospel. Since 1851 Minnesota has had a similar statute; except that court commissioners are not mentioned, and instead the superintendent of the department for the deaf and dumb in the Deaf, Dumb, and Blind Institute of the state is given authority. In both Minnesota and Wisconsin Quakers, on complying with the law as to return of certificate, are permitted to use their own forms;[1426] a minister, before being empowered to act, is required to file a copy of his credentials of ordination with the clerk of the court in some county, and receive from him a proper certificate thereof; and the magistrate or other person performing the ceremony may in all cases examine at least one of the parties on oath as to the legality of the intended marriage.[1427]

[Footnote 1426: But if the marriage among Quakers "does not
take place in such meeting, such certificate shall be signed by
the parties, and at least six witnesses present, and filed for
record" with the county clerk: _Gen. Stat. of Minn._ (1894), I,
1266; the same in _ibid._ (1866), 408; and nearly the same in
_ibid._ (1851), 271, 272.]

[Footnote 1427: The basis of the Wisconsin law of solemnization
may be found in the _Stat._ (1838-39), 139, 140, giving
authority to justices of the peace in their counties, to
judges and commissioners of the supreme court, and to ordained
ministers; and containing the provision regarding the filing of
credentials with the clerk of the district court. See also _Rev.
Stat._ (1849), 391-93, and _ibid._ (1858), 616-18; including
the same provisions regarding celebration as _Ann. Stat._
(1889), I, 1354-56, except that the present authority for court
commissioners in the counties is conferred by act of March 13,
1871: _Gen. Laws_, 99.

The Minnesota Law in _Rev. Stat. of the Ter._ (1851), 270-72, is
practically the same regarding the celebration as in _Gen. Stat.
of the State_ (1866), 406, except the provisions in the latter
regarding oath and credentials; and the law of 1866 is retained
in WENZELL AND LANE, _Gen. Stat._ (1894), I, 1264-66, except
that the provisions for solemnization by the superintendent of
the deaf and dumb appear in _Laws_ (1885), chap. 38, p. 47.
Licentiates are also required to take out a certificate: _Gen.
Laws_ (1901), 285.]

In the remaining fifteen western states, not yet considered, there is relative uniformity regarding the law of celebration. Originating even as organized territories in recent years, these commonwealths have profited by the experience of the older communities whence their people have mainly come, and so there has been less reason for experimentation. The history of their marriage laws in general is therefore less eventful. Everywhere the optional civil or religious celebration is recognized. (1) In all cases justices of the peace are authorized to conduct the solemnization. Occasionally, as in Alaska, North Dakota, Oregon,[1428] Nevada, and Washington, their power is expressly confined to their respective counties or districts; elsewhere no such restriction appears. (2) Everywhere without exception the judges or justices of the higher courts of record are granted authority, although the particular courts named vary considerably from state to state. Thus, in Colorado, Kansas, Nebraska, and Wyoming the statute simply allows any "judge" to perform the ceremony; while in North Dakota the same power is bestowed upon every judge of a "court of record," and in Alaska and Oregon, on any "judicial officer" within his proper jurisdiction. It is granted to judges of the district courts, in their respective districts, in Nevada; to judges of the supreme and district courts, in Montana and Utah; to these same magistrates and to judges of probate, in Idaho; to the justices of the supreme court and the judges of superior courts, in California and Washington; to the justices of the supreme court and the judges of the circuit or county courts, in South Dakota; and to these same judges and to those of the district courts, in Iowa. (3) Throughout these states, in every instance, all ordained ministers, priests, or preachers of the gospel, duly authorized by the usages of their respective churches or societies, are allowed to celebrate matrimony; but there is wide diversity in the phraseology of the statutes. Their power is not limited to a particular place, but may be exercised anywhere in the state. Only in one case among these fifteen states, Nevada, is the clergyman required to exhibit his credentials and take out a formal license. Sometimes, as in Kansas, Nevada, and North Dakota, the Friends are expressly permitted to observe their own rites; or, as in California, Iowa, Nebraska, Montana, Washington, and the two Dakotas, there is a general clause in the law favoring all religious societies having peculiar methods of celebration. City mayors are allowed the same authority as magistrates and ministers in Iowa, Montana, Idaho, Utah, and South Dakota. By the law of the last-named state, as in New York, Indians are permitted to marry according to their own forms; and in the West, during the earlier stage of development, the governor has sometimes been granted authority to join persons in wedlock, such being the case formerly in Nevada and still in Idaho.

[Footnote 1428: The justice of the peace is not expressly given
authority by the Oregon law; but in effect he is authorized by
the general clause allowing "any judicial officer" to act within
his proper jurisdiction: _Codes and Stat._ (1902), II, 1682.]

California, like New York, South Dakota, Wisconsin, Minnesota, and some other states, requires special precautions on the part of the person performing the ceremony, tending to prevent illegal or clandestine unions. He must first demand the "presentation of the marriage license; and if he has any reason to doubt the correctness of its statement of facts" as to identity of the persons, their names, ages, and places of residence, or the consent of their parents or guardians in case of minors, he must satisfy himself of the same; and "for that purpose he may administer oaths and examine the parties and witnesses in the like manner as the county clerk does before issuing the license." Idaho has a similar law; and that of Colorado allows the minister or magistrate, in case of minors having no parents or guardian, to perform the ceremony or not, according to his own judgment.[1429]

[Footnote 1429: DEERING, _Codes and Stat. of Cal._ (1886), II,
25, 26; _Rev. Stat. of Idaho_ (1887), 302; MILLS, _Ann. Stat. of
Col._ (1891), II, 1681.]

The statutes of many of the middle and western states require the presence of witnesses at the celebration. One witness is sufficient in South Dakota,[1430] as formerly in Dakota Territory; but two witnesses must attend in Alaska, Michigan, Montana, Minnesota since 1851, Idaho since 1864, Nebraska since 1867, Nevada since 1861, North Dakota since 1890, Oregon since 1854, Washington since 1866, Wisconsin since 1849, and Wyoming since 1869. New York requires one witness when the celebration takes place before a minister or a magistrate, and two witnesses when the marriage is by a written contract. The statutes sometimes contemplate the presence of witnesses when in terms it is not prescribed. Such is the case, for example, in New Jersey and California.[1431] In Pennsylvania the provision of 1701 requiring the attendance of twelve witnesses has not been expressly repealed; but, as already remarked, it is construed by the courts as being merely "directory," and "it has been ascertained that the requirement is no longer enforced. Two witnesses must be present" in that state "when any marriage is solemnized by the parties themselves."[1432]

[Footnote 1430: The solemnizer is required to ascertain the "name
and place of residence of the witness, or two witnesses, if more
than one is present": _Ann. Stat. of S. D._ (1899), II, 1022.]

[Footnote 1431: Witnesses are mentioned in the form of return
to be made by the solemnizer: _Gen. Stat. of N. J._ (1896), II,
2006: DEERING, _Codes and Stat. of Cal._, II, 26, 27.]

[Footnote 1432: WRIGHT, _Report_, 57.]

No definite formula for the celebration is anywhere prescribed. Sometimes the statute contains a statement to that effect. Thus in Alaska, California, Idaho, Michigan, Minnesota, Nebraska, Nevada, North Dakota, South Dakota, Oregon, Pennsylvania, Washington, Wisconsin, and Wyoming it is expressly provided that no particular form for the ceremony is required, but the parties must solemnly declare in the presence of the person officiating, and usually of the attending witnesses, that they take each other as husband and wife. The same is true of New York, if the ceremony is performed by a magistrate; but when a clergyman officiates, it may be "according to the forms and customs of the church or society to which he belongs."[1433] In the case of Quakers or religious societies having as such any peculiar mode of celebrating marriage, the law usually provides, as already seen, that the ceremony or other mode of joining in wedlock shall be in accordance with their customs; and "where not so stated it is, of course, implied."[1434]

[Footnote 1433: On witnesses and the form of ceremony see
DEERING, _Codes and Stat. of Cal._ (1886), II, 26 (form); _Rev.
Stat. of Idaho_ (1887), 302; HOWELL, _Gen. Stat. of Mich._
(1882-90), II, 1619, 3602; _Gen. Stat. of Minn._ (1894), I, 1265;
_ibid._ (1866), 407; _Rev. Stat. of Minn._ (1851), 271; _Comp.
Codes and Stat. of Mont._ (1895), 477; _Comp. Stat. of Neb._
(1899), 757; _Comp. Laws of Nev._ (1900), 113; _Rev. Stat. of N.
Y._ (1889), IV, 2597; same in _ibid._ (1827-28), 139, 140; _Codes
and Gen. Laws of Ore._ (1892), II, 1319; same in _Gen. Laws_
(1862), 86: _Ann. Codes and Stat. of Wash._ (1897), I, 1175,
1176; _Rev. Stat. of Wyo._ (1899), 791; _Rev. Stat. of Wis._
(1849), 392; also in _Ann. Stat. of Wis._ (1889), I, 1355.]

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

The laws of Montana, South Dakota, and formerly those of Idaho and California, contain a peculiar definition of matrimony and a provision for contract by "declaration," which, taken together, in effect allow persons to solemnize their own marriage, and to do so clandestinely, if they see fit. So by the California statute, as it stood from 1873 to 1895, marriage is defined as a "personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations." Furthermore, "consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases." "Persons married without the solemnization provided for" in the law "must jointly make a declaration of marriage substantially showing: 1. The names, ages and residences of the parties; 2. The fact of marriage; 3. That the marriage has not been solemnized. If no record of the solemnization of a marriage heretofore contracted be known to exist, the parties may join in a written declaration ... , substantially showing: 1. The names, ages, and residences of the parties; 2. The fact of marriage; 3. That no record of such marriage is known to exist." This declaration must be "subscribed by the parties and attested by at least three witnesses." These provisions are essentially vicious; and they gave rise to the so-called "contract" marriages, famous in California judicial history, the most notorious case being that of Sharon _v._ Sharon, which in its various phases was for years before the state and federal courts.[1435] So great were the evils of clandestine marriages, and the resulting conflicting and often false claims to property or inheritance under this law, that in 1895 a tardy remedy was sought in legislation. Section 75 of the code, as above quoted, allowing a declaration of marriage, was repealed outright. The definition in sec. 55 was amended to read, "Consent alone will not constitute marriage; it must be followed by a solemnization authorized by this Code;" and for the future sec. 57, instead of its former dangerous terms, declares that "consent to a marriage and solemnization thereof may be proved under the same general rules of evidence as facts are proved in other cases."[1436]

[Footnote 1435: Sharon _v._ Sharon, 67 _Cal._ (1885), 185 ff.; 75
_Cal._ (1888), 1-78; 79 _Cal._ (1889), 633-703; 84 _Cal._ (1890),
424 ff. For other cases of "contract" marriages under the code of
1873, see Kelly _v._ Murphy, 70 _Cal._ (1887), 560; Kilburn _v._
Kilburn, 89 _Cal._ (1891), 46; People _v._ Beevers, 99 _Cal._
(1893), 286; Toon _v._ Huberty, 104 _Cal._ (1894), 260; People
_v._ Lehman, 104 _Cal._ (1894), 631; Hinckley _v._ Ayres, 105
_Cal._ (1895), 357. From 1849 to 1873 common-law marriages were
good in California: see Graham _v._ Bennett, 2 _Cal._ (1852),
503; Letters _v._ Cady, 10 _Cal._ (1858), 530; Case _v._ Case,
17 _Cal._ (1861), 598; People _v._ Anderson, 26 _Cal._ (1864),
130; estate of Charles Beverson, 47 _Cal._ (1874), 621; estate of
McCausland, 52 _Cal._ (1878), 568; _in re_ Briswalter, 72 _Cal._
(1887), 107; White _v._ White, 82 _Cal._ (1890), 427. The facts
in the four cases last mentioned arose before 1873.]

[Footnote 1436: DEERING, _Codes and Stat. of Cal._ (1886), II,
18, 19, 20, 27; amended by act of March 26, 1895: _Stat. and
Amendments to the Codes_ (1895), 121. Compare the present law of
South Dakota: _Ann. Stat._ (1899), II, 1018, 1022; _Rev. Codes
of S. D._ (1903), 596; and that of Montana: _Comp. Codes and
Stat._ (1895), 475, 477, 478, which in the definition declares
that consent "must be followed by a solemnization, or by a mutual
and public assumption of the marital relation." In the use of
the word "public" the present law of Montana differs from that
of California previous to 1895. Formerly the laws of Idaho and
California were identical; but now the provision for declaration
is omitted from those of Idaho, although the prescribed
celebration is not essential to a valid marriage. _Cf._ _Comp.
and Rev. Laws of Idaho_ (1875), 642, 645; _Rev. Stat._ (1887),
301.]

Fourteen states of the middle and western group have provided that when a marriage has been solemnized by a person professing to be authorized, but not authorized by law for that purpose, its validity is "not affected by such lack of authority, if it is in other respects valid and consummated with the belief of the parties, or either of them, that they have been lawfully married."[1437] These states are Idaho, Indiana, Michigan, Minnesota, Montana, New York, Nebraska, North Dakota, Nevada, Oregon, Utah, Washington, Wisconsin, and Wyoming. In all cases the person falsely representing himself to have authority is made liable to severe penalties.[1438] California requires that "marriage must be licensed, solemnized, authenticated, and recorded;" but it is not invalidated by non-compliance with the law "by other than the parties" themselves.[1439] Idaho, Montana, and South Dakota have similar statutes, although the act of the parties is not thus excepted.[1440] In Iowa "marriages solemnized, with the consent of parties, in any other manner" than presented by the statute, "are valid; but the parties thereto, and all persons aiding or abetting them, shall forfeit to the school fund the sum of fifty dollars each; but this shall not apply to the person conducting the ceremony, if within ninety days thereafter he makes the required return to the clerk of the district court."[1441] In Indiana "no marriage shall be void or voidable for want of license or other formality required by law, if either of the parties thereto believed it to be legal marriage at the time."[1442] The person solemnizing, in Colorado, is protected by the duly issued license, if he has no personal knowledge of the incompetency of the parties.[1443] In Ohio, "when the person who solemnized the marriage had no license, it was held that it was to be inferred that the parties openly and mutually consented to a contract of present marriage;" and when they thereafter cohabited as husband and wife, "this consent constituted a legal marriage, and the man having then a wife living might properly be convicted of bigamy."[1444]

[Footnote 1437: Want of authority to solemnize does not avoid a
marriage: State _v._ Brecht, 41 _Minn._, 50, 54; 42 _N. W. Rep._,
602; Martin _v._ Ryan, 2 PINNEY, _Wis. Reports_, 24.]

[Footnote 1438: For unauthorized solemnization and the penalty
see _Rev. Stat. of Idaho_ (1887), 303, 761: a misdemeanor
punished by confinement in the county jail not exceeding six
months, or a fine of not more than $300, or both; _Laws of Ind._
(1897), 129 (March 4); _Rev. Stat._ (1896), I, sec. 2148: a
fine of $50 to $500, to which may be added imprisonment in the
county jail for from ten days to three months; HOWELL, _Gen.
Stat. of Mich._ (1883), II, 1620: a misdemeanor punishable by
imprisonment in the county jail of not more than one year, or
a fine of $50 to $500, or both; _Gen. Stat. of Minn._ (1894),
I, 1266: a misdemeanor, with not over one year's imprisonment,
or a fine of not exceeding $500, or both; _Comp. Codes and
Stat. of Mont._ (1895), 477; _Comp. Stat. of Neb._ (1899),
757: a misdemeanor, with not more than one year in jail, or a
fine not to exceed $500; _Comp. Laws of Nev._ (1900), 114: a
fine of not more than $500, or imprisonment till paid; _Codes
and Gen. Laws of Ore._ (1892), II, 1320-22; I, 967: not more
than one year in jail, or a fine of $100 to $500; and the same
penalty for illegal solemnization and for illegally issuing a
license by the clerk; _Rev. Stat. of Utah_ (1898), 331; _Laws_
(1888), 90: not exceeding three years in the state prison, and
the same penalty for false personation of parent or guardian,
or for forging a certificate of consent; _Ann. Code of Wash._
(1897), I, 1175, 1178; _Ann. Stat. of Wis._ (1889), I, 1356: not
exceeding one year in jail, or a fine of not more than $500, and
the same for illegal solemnization, making false certificate,
or for false personation; _Rev. Stat. of Wyo._ (1899), 791,
792: a misdemeanor, and the same penalty as in Wisconsin for
unauthorized solemnization, which is prescribed also for false
certificate or false record by the clerk; _Ann. Rev. Stat. of
Ohio_ (1897), II, 3017: imprisonment for six months, or a fine of
$500, or both; _Laws of N. D._ (1890), 278: a misdemeanor with
fine of $100 to $500 and costs, or imprisonment in the county
jail for from three months to one year.]

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

[Footnote 1440: _Rev. Stat. of Idaho_ (1887), 302; _Comp. Codes
and Stat. of Mont._ (1895), 476; _Stat. of S. D._ (1899), II,
1020.]

[Footnote 1441: _Code of Iowa_ (1897), 1124; same in _ibid._
(1860), 428. _Cf. ibid._ (1851), secs. 1474, 1475. Thus the
common-law contract is good: see Blanchard _v._ Lambert, 43 _Ia.
Reports_, 228.]

[Footnote 1442: HORNER, _Rev. Stat. of Ind._ (1896), II, sec.
5330; BURNS, _Ann. Stat._ (1901), III, 705.]

[Footnote 1443: MILLS, _Ann. Stat. of Col._ (1891), II, 1680.
The _Gen. Laws of Col._ (1877), 613, show the exigencies of
pioneer life in the provision that "all marriages which have
been solemnized in this state, whether by any president or judge
of any mining district, elected under and acting by the laws
thereof," shall be valid. So in Oregon by an act of Jan. 17, 1854
(_Stat. of Ore._, 494), marriages contracted, with the consent of
the parties, "when their residence is remote from any person duly
authorized to solemnize such marriage, in any other manner than
is prescribed, shall be valid; Provided that no legal impediment
shall exist thereto; such contracts shall be made in writing duly
attested, and shall be recorded in the office of the recorder of
deeds of the proper county, within sixty days."]

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

_b_) _Forbidden degrees: void and voidable marriages._--Nineteen out of the twenty-five middle and western states have each provided a statutory definition of marriage.[1445] In Oregon, Indiana, and in Washington since 1854, it is defined briefly as a civil contract; in Alaska it is a civil contract which may be entered into by males of twenty-one and females of eighteen years, if otherwise capable; in Colorado and Kansas it is "considered in law" as a civil contract to which the consent of the parties is essential; in Iowa[1446] since 1851, Nebraska since 1855, and Wyoming since 1869, it is a civil contract to which the consent of parties capable in law of contracting is necessary; in Michigan, Minnesota since 1866, Nevada since 1861, New York[1447] since 1828, and Wisconsin since 1849, "so far as its validity in law is concerned," it is a civil contract under the same conditions as in the last-named group of states. On the other hand, several commonwealths have sanctioned a definition which seems to imply the element of status in the marital relation. Thus by the laws of Idaho, Montana, South Dakota, California, and North Dakota, marriage is a personal relation, arising out of a civil contract to which the consent of parties capable of making it is necessary. In North Dakota, although marriage is a personal relation so arising, it must be "entered into, maintained, annulled, or dissolved" only as provided by law; and in California, since the reform of 1895, consent must be followed by a solemnization authorized by the code. Moreover, in South Dakota the consent to a marriage "must be to one commencing instantly, and not to an agreement to marry afterwards." The law of Ohio is similar;[1448] and in Idaho and California neither party to a nuptial contract is "bound by a promise made in ignorance of the other's want of personal chastity, and either is released therefrom by unchaste conduct" of the other, unless both participated therein.[1449]

[Footnote 1445: On the definition of marriage see Smith _v._
Smith, 17 _N. Y. Rep._, 76; and on marriage as a question of
status, Sewall _v._ Sewall, 122 _Mass._, 156; Watkins _v._
Watkins, 135 _Mass._, 84.]

[Footnote 1446: "Marriage is a civil contract, requiring the
consent of the parties capable of entering into other contracts,
except as herein otherwise noted."--_Code of Iowa_ (1897), 1123;
_cf. ibid._ (1851), sec. 1464; _ibid._ (1873), sec. 2186.]

In all the states of the group under review, except in Colorado, New Jersey, and Pennsylvania, the age of consent to marriage is fixed by the law, or it may be inferred from its provisions. For males it is twenty-one in Alaska and Washington;[1450] eighteen in California, Delaware,[1451] Idaho,[1452] Indiana, Michigan, Minnesota, Montana, Nebraska, Nevada, New York, Ohio, Oregon, South Dakota, Wisconsin, and Wyoming; seventeen in Illinois; sixteen in Iowa,[1453] North Dakota,[1454] and Utah;[1455] and only fifteen in Kansas. For females it is eighteen in Alaska, Washington, Idaho, and New York; sixteen in Delaware, Indiana, Michigan, Montana, Nebraska, Nevada, Ohio, and Wyoming; fifteen in California, Minnesota, Oregon, South Dakota, and Wisconsin; fourteen in Illinois, Iowa, and Utah; thirteen in North Dakota; and only twelve in Kansas.

[Footnote 1447: "Marriage, so far as its validity in law is
concerned, shall continue in this state a civil contract, to
which the consent of parties capable in law of contracting, shall
be essential."--_Rev. Stat. of N. Y._ (1827-28), II, 138; _cf.
ibid._ (1889), IV, 2595.]

[Footnote 1448: "Mutual promises to marry in the future,
though made by parties competent to contract, and followed by
cohabitation as husband and wife, is not, in itself, a valid
marriage."--Duncan _v._ Duncan, 10 _Ohio Reports_, 181.]

[Footnote 1449: _Rev. Stat. of Idaho_ (1887), 302; DEERING,
_Codes and Stat. of Cal._ (1886), II, sec. 62, p. 24: act of
March 30, 1874, _Amendments_ (1873-74), 185.]

[Footnote 1450: The _Ann. Codes and Stat. of Wash._ (1897), I,
1174, fixes the age when marriage may be contracted at twenty-one
for males and eighteen for females; but elsewhere provision is
made for written consent of parent or guardian before license may
be issued to persons below these ages respectively: _ibid._, I,
1177.]

[Footnote 1451: It is provided by the _Rev. Code of Del._ (1874),
chap. 75, sec. 1, "that a divorce may be granted in case the
parties were, when married, below the ages specified (eighteen
and sixteen), and did not voluntarily ratify the marriage after
arriving at those ages;" and this is retained in _Rev. Stat._
(1893), 596. _Cf._ WRIGHT, _Report_, 30.]

[Footnote 1452: From 1864 to the act of Feb. 7, 1889, in Idaho,
the ages of consent were respectively eighteen and sixteen for
males and females; but in the last-named year eighteen was fixed
as the age for both sexes: _Laws_ (1863-64), 613: _Gen. Laws_
(1889), 40.]

[Footnote 1453: Below the ages of sixteen and fourteen in Iowa
"marriage is a nullity or not, at the option of the minor, made
known at any time before he or she is six months older than said
ages."--WRIGHT, _Report_, 30; see _Code of Iowa_ (1897), 1123;
_ibid._ (1873), sec. 2186.]

[Footnote 1454: North Dakota shows a retrogression. By the _Rev.
Code_ (1895), 608, the ages of consent to marriage are sixteen
and thirteen: the same by the act of March 20, 1890: _Laws_,
276; which act had been superseded by that of March 9, 1891,
_Laws_, 228, 229, which is in turn repealed by the act of 1895.
Still earlier the laws of Dakota Territory had fixed the ages
at eighteen and fifteen respectively: _Code of Dakota_ (1883),
sec. 36, p. 743; at sixteen and fourteen on May 7, 1862: _Gen.
Laws_ (1862), 390; and at fourteen and thirteen in 1866: _Civil
Code_ (1865-66), 11. By this last act the marriage of a woman
under fourteen might be annulled, if contracted without consent
of parent or guardian, and not followed by cohabitation, nor
ratified after the girl attained that age.]

[Footnote 1455: Formerly the ages in Utah were fourteen and
twelve: _Laws_ (1888), 88-91; they were fixed at sixteen and
fourteen respectively for males and females by the act of March
11, 1897: _Laws_, 40.]

The age below which the consent of parent or guardian is required for the marriage of a minor is prescribed in all cases, except in Alaska, Kansas, New York, and Michigan.[1456] Such consent must precede the granting of license; or, where the license system has not been adopted, it must be made known by certificate or otherwise to the person or society conducting the celebration before the ceremony may be performed.[1457] In all cases, save the three named, the age for males is twenty-one, except in Idaho, where it is eighteen. For females it is eighteen in all these states, except in Idaho, where it is sixteen; and in Pennsylvania and Wyoming, where it is twenty-one. Formerly in Delaware indented servants could not lawfully marry without the master's consent; and for so doing such persons offending must "serve their respective masters or mistresses six months after the time of their servitude by indentures or engagements has expired; and if any person being free, shall marry with a servant without such consent ... he or she ... shall pay to the master or mistress of the servant, if a man, ten pounds, and if a woman, five pounds; and the servant so married shall abide with the master or mistress according to indenture or engagement six months as aforesaid."[1458] Later the penalty for a free person marrying a servant, if a man, was fixed at thirty dollars, of if a woman, at fifteen.[1459]

[Footnote 1456: Solemnization against law as to age and parental
consent does not invalidate: Parton _v._ Hervey, 1 _Gray_, 119,
122; Holtz _v._ Dick, 42 _Ohio Reports_, 791. In Kansas, 1859-67,
the ages were twenty-one for males and eighteen for females:
WEBB, _Gen. Stat._ (1897), II, 939, note.]

[Footnote 1457: In Oregon a license may be issued for the
marriage of a minor without such consent, when there is no parent
or guardian resident in the state, if the female has lived in the
county where the license is applied for during six months: _Codes
and Gen. Laws_ (1892), II, 1321; _Codes and Stat._ (1902), II,
1684.]

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

[Footnote 1459: _Rev. Stat. of Del._ (1853), as amended (1893),
594. This provision is now obsolete, though retained in the
statutes.]

All the states under consideration have legislated concerning forbidden degrees of consanguinity. Relations in the direct line, with brothers and sisters, are, as elsewhere, always included; although many of the newer states and some of the older, have not thought it necessary to continue the solemn farce derived from ancient ecclesiastical usage of specifically interdicting wedlock with a grandparent or with a grandchild; and sometimes the connections by affinity are not mentioned, or, as in Wyoming, they are expressly exempted from the inhibitions. Frequently, however, a man is denied the privilege of taking his step-mother or his mother-in-law to wife,[1460] and in every state of the group, expressly or by implication,[1461] marriage between aunts and nephews, or uncles and nieces, is forbidden. Minnesota since 1851, and Wisconsin since 1839, prohibit marriage between persons nearer of kin than first cousins, computing by the rules of the civil law; and in effect the same is true of Utah.[1462] On the other hand, the statutes of Indiana, Ohio, Nevada, and Washington are more severe, allowing marriage only between persons "not nearer of kin than second cousins;" first cousins are likewise prohibited from intermarrying in Illinois, Kansas, Wyoming, the two Dakotas, Michigan, Pennsylvania, Oregon, and, apparently in Colorado;[1463] while in Alaska marriages are prohibited within the fourth degree of the whole or the half-blood. But in no instance is a union between a sister-in-law or a brother-in-law interdicted. In all cases marriages within the prohibited degrees are both incestuous and void, except in Delaware, Minnesota, Oregon, Pennsylvania, Indiana, and South Dakota, where they are only void; in New Jersey, where they are only voidable;[1464] in Washington, where they are only incestuous; and in Ohio, where they are not expressly declared to be either incestuous or void. However, in the three states last named such unions are forbidden and punished; and in general for violation of the law by the persons contracting or the person solemnizing marriages declared void or voidable severe penalties are often imposed.[1465] By exception, in Colorado, it is provided that nothing in the law regarding degrees "shall be so construed as to prevent the people living in that portion of the state acquired from Mexico from marrying according to the customs of that country."[1466]

[Footnote 1460: A marriage with a step-parent or parent-in-law
is forbidden in Delaware, Iowa, Michigan, New Jersey, and
Washington; apparently also in Pennsylvania. In the latter state
marriages within the degrees of affinity, forbidden by the act of
March 31, _Laws_ (1860), 394, were legalized by the act of April
6, 1868; _Laws of the Gen. Assem._, 67; or the same in PEPPER AND
LEWIS, _Digest_ (1896), II, 2884.]

[Footnote 1461: Of course, such unions are included where
marriage is expressly prohibited between persons nearer of kin
than first or second cousins by the rules of the civil law.]