Chapter XVI (5)

[Footnote 1462: In Utah marriage is forbidden within, but not
including, the fourth degree of collateral kinship according to
the rules of the civil law. Originally Iowa had the same rule as
Minnesota: _Code of Iowa_ (1843), 434.]

[Footnote 1463: First cousins are prohibited by act of March 10:
_Session Laws of Col._ (1864), 108; the prohibition is retained
in _Gen. Laws_ (1877), 612; but omitted in _Gen. Stat._ (1883),
690, the change being made in _Session Laws_ (1883), 243. But
MILLS, _Ann. Stat._ (1891), sec. 1320, p. 931, declares the
marriage of first cousins incestuous and void. See _Laws of Pa._
(1901), 597, for prohibition of marriage of first cousins; _Laws
of Ore._ (1893), 41; _Codes and Stat. of Ore._ (1902), II, 1681.]

[Footnote 1464: Such marriages are voidable in New Jersey, "and
until dissolved by a court of competent jurisdiction must in
all collateral proceedings, be treated as valid."--_Gen. Stat._
(1896), II, 2003. _Cf._ Boylan _v._ De Inzer, 18 STEWART, _N. J.
Equity Reports_, 485.]

[Footnote 1465: For example, in Colorado, knowingly contracting
or solemnizing such a marriage is a misdemeanor subject to a fine
of $50 to $500, or imprisonment from three months to two years,
or both: MILLS, _Ann. Stat._ (1891), II, 1678; in Illinois incest
is punished by imprisonment for not more than ten years, or
twenty if the crime is that of father with daughter: HURD, _Rev.
Stat._ (1898), 577; in Kansas, for contracting, solemnizing, or
licensing a marriage within the forbidden degrees the offender
is liable to a fine of from $100 to $1,000, or imprisonment for
from three months to five years, or both: WEBB, _Gen. Stat._
(1897), II, 637; but elsewhere the law makes an incestuous
marriage punishable by confinement and hard labor not exceeding
seven years: _ibid._, II, 301; in Ohio, persons nearer of kin
than cousins committing fornication or adultery are liable to
imprisonment for from one to seven years: BATES, _Ann. Stat._
(1897), III, 3220; in Utah, solemnizing a marriage within the
forbidden degrees is punished by not exceeding three years in
the penitentiary, or a fine of not more than $1,000, or both:
_Rev. Stat._ (1898), 331; by _Laws_ (1888), 91; in Washington the
penalty for contracting is imprisonment in the penitentiary for
from one to ten years: _Ann. Codes and Stat._ (1897), I, 1175;
in North Dakota it is a misdemeanor, with imprisonment not more
than six months, or a fine of not more than $500: _Laws_ (1890),
276; but for incest the penalty is one to ten years in the
penitentiary: _Rev. Codes_ (1895), 1273; in Delaware, a fine of
$100: _Rev. Stat._ (1893), 593.]

[Footnote 1466: MILLS, _Ann. Stat. of Col._ (1891), II, 1678. On
the Spanish laws and their effect see Smith _v._ Smith, 1 _Texas
Reports_, 621; 46 _Am. Decis._, 121, note, 130-34.]

In these states the grounds for prohibiting wedlock other than kinship or affinity are as varied, confusing, and contradictory as in New England or the southern group. For the same cause a contract declared void in one state may be voidable or merely forbidden and punished in another. The statutes disclose a great diversity of conditional or qualifying clauses which render it almost hopeless to make any trustworthy generalizations. Thus bigamous marriages are void or voidable by judicial decree in California, Delaware, Idaho, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Oregon, Pennsylvania,[1467] South Dakota, Utah, Wisconsin, and Wyoming; while in Colorado,[1468] Illinois, Ohio, and Washington they are prohibited and made punishable. In Michigan, Minnesota, Nevada, and Wisconsin the law applies only when the marriage was solemnized in the state; while in California, Idaho, Minnesota, North Dakota, New York, and South Dakota such unions are void or voidable unless, as expressed in the California statute, "the former husband or wife was absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or was generally reputed or believed by such person to be dead" when the second marriage was contracted; "in either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal."[1469] Illinois and Ohio have each a similar provision.[1470]

[Footnote 1467: Sec. 11 of the _Digest of the Laws of Pa._ (1883)
provides that "in all cases where a supposed or alleged marriage
shall have been contracted which is absolutely void by reason of
one of the parties thereto having a husband or wife living at the
time, the court of common pleas shall have power to decree the
said supposed or alleged marriage to be null and void upon the
application of the innocent or injured party;" and this provision
is still in force: PEPPER AND LEWIS, _Digest_ (1896), I, 1634.
Now, as in 1785, a bigamous marriage is a ground of divorce:
_ibid._, I, 1633. MYERS, _Rev. Stat. of Ill._ (1895), 545,
provides that "no divorce shall in any wise affect the legitimacy
of children, except where the marriage shall be declared void
on the ground of a prior marriage;" and Colorado has the same
provision: MILLS, _Ann. Stat._ (1891), I, 1035.]

[Footnote 1468: A bigamous marriage is ground for divorce in
Colorado: MILLS, _Ann. Stat._, III, 4341.]

[Footnote 1469: See _Amendments to the Civil Code of Cal._
(1897), sec. 61. _Cf._ secs. 82-84 of DEERING, _Codes and Stat._
(1886), II, 22, 28, 30. In New York the same exception is made
when either spouse has been "finally sentenced to imprisonment
for life": _Rev. Stat._ (1827-28), 139; _ibid._ (1889), IV, 2596.]

[Footnote 1470: BATES, _Ann. Rev. Stat. of Ohio_ (1897), III,
3220; MYERS, _Rev. Stat. of Ill._ (1895), 445.]

On the abrogation of polygamy, Utah had a problem to solve analogous to that of the southern states after the enfranchisement of the negroes. By an act of March 9, 1896, rights of inheritance were secured to the issue of bigamous and polygamous marriages; and a few days later, by general enactment, the children of such unions "heretofore contracted between members of the Church of Jesus Christ of Latter-day Saints, born on or prior to the fourth day of January," 1896, were legitimated.[1471]

[Footnote 1471: _Laws_ (1896), 128, 129, 271, 272.]

The laws of California, Idaho, Michigan, Minnesota, Nebraska, North Dakota, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming render a marriage void or voidable when entered into by either person through force or fraud;[1472] those of New York,[1473] when force, fraud, or duress has been practiced; and those of Nevada, when fraud has been proved.[1474] In Colorado the marriage of a female obtained by force or fraud is prohibited and punished; in Iowa, Kansas, Montana, and Nevada, when obtained by force, menace, or duress; in Illinois, Montana, and New York, when the marriage of either person has been gained through false persuasion; while New Jersey, in more general phrase, treats as void the marriage of a female "against her will."

[Footnote 1472: In Pennsylvania force or fraud in the marriage is
a ground for divorce: PEPPER AND LEWIS, _Digest_ (1896), I, 1635;
_ibid._ (1902), II, 1830.]

[Footnote 1473: STOVER, _Code of Civil Proced._ (1892), II, 1627.]

[Footnote 1474: In Idaho, Michigan, Minnesota, Nebraska, New
York, Oregon, Utah, Wisconsin, and Wyoming these marriages
are not voidable when there has been subsequent voluntary
cohabitation; in New York, Oregon, and Washington they are
voidable only at the suit of the injured party; and in New York,
only on a decree rendered during the lifetime of the parties.]

Marriages are also void or, usually, voidable when either person was of unsound mind, as in California, Idaho, or South Dakota; or insane or an idiot, as in Illinois, Indiana, Iowa, Kansas, Michigan, Nebraska, Utah, Wisconsin, and Wyoming;[1475] or wanting in age or understanding, as in Indiana, Kansas, Minnesota, Nevada, New Jersey, New York, Oregon, Washington, and Wisconsin;[1476] or physically incompetent, as in California, Idaho, Iowa, Kansas, Montana, Nebraska, New Jersey, New York, Wyoming, and the two Dakotas;[1477] or below age of legal consent, as in all the last-named states, and also in Michigan, Nevada, Ohio, Utah, Wisconsin, and Wyoming.[1478]

[Footnote 1475: In Idaho a marriage is voidable for unsound
mind, unless after the removal of the disability the parties
freely cohabited; but in Iowa, when either party was impotent,
insane, or an idiot, a marriage is not declared void by the
statute, but provision is made for its annulment: MCLAIN, _Ann.
Code_ (1888), I, 897. By the law of Michigan, such a marriage is
voidable, if solemnized in the state; but there, as also in New
York, Nebraska, and Wyoming, in case of lunacy, a marriage is not
voidable when the parties have freely cohabited after the lunatic
recovered.]

[Footnote 1476: By the Indiana law such voidable marriages shall
be declared void on application of the incapable party, and the
children thereof shall be legitimate. The same is true in Kansas,
but there cohabitation after incapacity ceases is a sufficient
defense to the action for annulment. The law of Minnesota is
similar. In Nevada and Nebraska a marriage is "not voidable for
want of age, if after attaining the age of consent the parties
for any time freely cohabited; nor for want of understanding,
if after restoration to reason" they so cohabited. According
to the New York statute a marriage is "not voidable on account
of want of age at suit of the party who was of age of consent;
nor where it appears that the parties after attaining such age
freely cohabited; nor of a female under sixteen years of age if
she had parental consent to the marriage," or when she ratified
it after reaching that age. The law of Oregon is practically the
same. In Michigan and Wyoming a marriage of persons below the
age of consent is void if they separate during nonage and do not
afterward cohabit.]

[Footnote 1477: In Nebraska, New York, and Wyoming an action
for annulment on the ground of impotence must be brought in two
years; while for this cause in Colorado, Indiana, Illinois,
Oregon, and some other states a "divorce" will be granted.
Physical incapacity is cause for divorce in Michigan; and suit
to "annul" a marriage on this ground must be brought within two
years: MILLER, _Comp. Laws_ (1899), III, 2664.]

[Footnote 1478: By the Ohio law marriages "contracted by male
persons under the age of eighteen and females under the age
of fourteen [now sixteen] are invalid, unless confirmed by
cohabitation after arriving at those ages respectively; and
such marriage, not so confirmed, does not subject a person to
punishment for bigamy for contracting a subsequent marriage while
the first husband or wife is living": see Shafher _v._ State, 20
_Ohio Reports_, 1.]

Several states of this group, like those of the South, have attempted to check miscegenation by statute. Marriages between white persons and negroes or mulattoes are thus declared illegal and void in California,[1479] Colorado, Delaware, and Idaho; and with negroes or Mongolians in Utah. The prohibition of such unions in Nebraska extends to persons having one-fourth, and in Indiana to those having one-eighth, negro blood; while in Oregon since 1866 it has been applied to those with one-half Indian or one-fourth negro or Chinese blood in their veins.[1480] In Nevada similar unions, without specification of the degree of dark blood, are forbidden and punished. On the contrary, Michigan, by an act of 1883, provides that "all marriages heretofore contracted between white persons and those wholly or in part of African descent are ... valid and effectual in law for all purposes, and the issue" shall be deemed legitimate.[1481]

[Footnote 1479: California does not directly prohibit the
intermarriage of whites and Chinese; but the county clerk is
commanded not to "issue a license authorizing the marriage of
a white person with a negro, mulatto, or Mongolian": DEERING,
_Codes and Stat._ (1886), II, 25, sec. 69.]

[Footnote 1480: Until _Laws of Ore._ (1893), 41, "Kanaka" blood
was included in the prohibition. _Cf._ _Codes and Stat._ (1902),
II, 1681, 1682; I, 274.]

[Footnote 1481: _Laws_ (1883), 16; also in HOWELL, _Gen. Stat._
(1883), II, 1619; and retained in the act of June 15: _Pub. Acts_
(1899), 387.]

Among the commonwealths of this group Delaware alone has the honor of trying through legislation to put some limit upon the increase of the indigent and incapable classes, the marriage of paupers being forbidden under penalty. Michigan has taken a still more important step in advance, setting a worthy example of social legislation which ought to be followed throughout the country. By a stringent law of 1899, it is declared that no person afflicted with certain syphilitic diseases "shall be capable of contracting marriage." For so doing the transgressor shall be "deemed guilty of felony and upon conviction thereof ... , shall be punished by a fine of not less than five hundred dollars or more than one thousand dollars, or by imprisonment in the state's prison ... not more than five years, or by both such fine and imprisonment in the discretion of the court." Furthermore, it is especially provided that either husband or wife may be examined as a witness; and in all cases arising under the act a physician who has attended or prescribed for any person so affected "shall be compelled to testify to any facts found by him from such attendance."[1482]

[Footnote 1482: _Pub. Acts of Mich._ (1899), 387, 388 (June 15).
The law applies to "syphilis and gonorrhœa."]

An enlightened policy in a parallel direction is revealed by a recent law of Minnesota, similar to that of Connecticut, prohibiting the marriage of persons either of whom is epileptic, imbecile, feeble-minded, or afflicted with insanity, when the woman is under forty-five years of age;[1483] and Kansas has just enacted the same restraint.[1484] On the other hand, in no instance, apparently, has any effort yet been made to prevent the clandestine marriage outside the state of residents who thus seek to evade the requirements of their own laws.[1485]

[Footnote 1483: "No woman under the age of forty-five (45) years
or man of any age, except he marry a woman over the age of
forty-five (45) years, either of whom is epileptic, imbecile,
feeble minded, or afflicted with insanity, shall hereafter
intermarry, or marry any other person within this state."--_Gen.
Laws of Minn._ (1901), 334, 335.]

[Footnote 1484: _Session Laws of Kan._ (1903), 373, 374.]

[Footnote 1485: Except that in Delaware, if the parties to
any marriage prohibited for consanguinity or affinity, or for
miscegenation, "although the same may have been solemnized in
another state, shall cohabit as husband and wife in this state,
they shall each be deemed guilty of a misdemeanor and upon
conviction thereof shall be fined $100."--_Rev. Stat._ (1893),
593.]

Very generally, as elsewhere, indirect encouragement to matrimony is given by the suspension of prosecution or penalty, and through the legitimation of children. By the laws of Dakota and California, "every contract in restraint of the marriage of any person, other than a minor, is void;"[1486] and the same is true in the latter state regarding conditions of ownership imposing like restraints; but this rule "does not affect limitations when the intent was not to forbid marriage, but only to give the use until marriage."[1487] In many cases it is provided that marriages contracted out of the state are valid, if valid where they are formed; but Pennsylvania is the only commonwealth in the Union, except Georgia, directly promoting wedlock, her statute declaring that "all marriages not forbidden by the law of God shall be encouraged."[1488]

[Footnote 1486: DEERING, _Codes and Statutes_ (1886), II, sec.
1676, p. 311.]

[Footnote 1487: _Ibid._, sec. 710, p. 171; according to the
amendment of March 30, 1874: _Amendments to Codes_ (1873-74),
218. This provision "leaves no doubt but that the limitation of
an estate to a widow so long as she remains unmarried is good;"
and the "rules which govern a devise in restraint of a widow's
marriage, apply to like devise in restraint of a widower's
marriage: Bostwick _v._ Blades, 4 _Am. Law Rec._, 729 (Md. Ct. of
App.)." See EDITOR DEERING'S valuable note in _Codes and Stat._,
II, 171, where cases are cited.]

[Footnote 1488: The history of the various topics treated in this
section _b_) for the several states may be traced as follows:
(1) California: _Stat._ (1850), 424, 425; _Comp. Laws_ (1853),
175-77; _Acts Amendatory of the Codes_ (1873-74), 181 ff.;
_Stat._ (1880), 121 ff.; DEERING, _Codes and Stat._ (1886), II,
18-37; _Amendments to Codes_ (1895), 121; (2) Colorado: _Sess.
Laws_ (1861), 313; _ibid._ (1864), 108 ff.; _Gen. Laws_ (1887),
611-13; _Gen. Stat._ (1883), 690-94; MILLS, _Ann. Stat._ (1891),
II, 1675 ff.; (3) Delaware: _Rev. Stat._ (1893), 593, 594; (4)
Idaho: _Laws_ (1863-64), 613 ff.; _ibid._ (1864), 397; _ibid._
(1867), 71-73; _Comp. and Rev. Laws_ (1875), 642-45; _Gen. Laws_
(1889), 40, 278-80; _Rev. Stat._ (1887), 301-3; (5) Illinois:
HURD, _Rev. Stat._ (1898), 630, 577, 1067-69; (6) Indiana:
_Laws of the State_ (1897), 129; _Indiana Stat._ (1896), II,
secs. 5324 ff.; (7) Iowa: _Code_ (1860), 747; _ibid._ (1873),
628; _ibid._ (1897), 1123-25, 1940; (8) Kansas: _Stat._ (1855),
488, 489; _Laws_ (1857-58), 326; _Gen. Laws_ (1859), 563, 564;
_Laws_ (1870), 157, 158; WEBB, _Gen. Stat._ (1897), II, 637 ff.,
301, 339; (9) Michigan: _Laws of the Ter._ (1871-84), I, 30-32,
202, 203, 646-49; II, 412-14; III, 1191, 1192; HOWELL, _Gen.
Stat._ (1882-90), II, 1618-20; _Comp. Laws of Mich._ (1899),
III, 2645-52; (10) Minnesota: _Rev. Stat._ (1851), 270-72; _Gen.
Stat._ (1866), 406-8; WENZELL AND LANE, _Gen. Stat._ (1894), I,
1264-66; (11) Montana: _Comp. Codes and Stat._ (1895), 474-78;
(12) Nebraska: _Laws_ (1855), 209-11; _ibid._ (1856), 150-52;
_Stat._ (1867), 254-57; _Comp. Stat._ (1899), 756-58; (13)
Nevada: _Laws_ (1861), 93-96; _ibid._ (1867), 88, 89; _ibid._
(1881), 107, 108; _Comp. Laws_ (1900), 112-15; (14) New Jersey:
_Laws of the State_ (1800), 158-60; _Gen. Stat._ (1896), II,
2003-6; I, 1064, 1066; (15) New York: _Rev. Stat._ (1829), II,
138-41; _ibid._ (1889), IV, 2596-98; STOVER, _Code of Civil
Proced._ (1892), II, 1627, 1632 ff.; _ibid._ (1902), II, 1830-35;
(16) North Dakota: _Laws_ (1890), 276-79; _ibid._ (1891), 228,
229; _Rev. Codes_ (1895), 608-11; _Revised Codes_ (1899), 692-95,
1440, 1441, 1454, 1455; (17) Ohio: CHASE, _Stat. of Ohio and
N. W. Ter._ (1833-35), I, 101, 102, 126, 354, 355, 672, 673;
II, 1407, 1408; BATES, _Ann. Stat._ (1897), II, 3015-18, 2211;
III, 3220; (18) Oregon: _Laws_ (1843-49), 36, 80, 81; _Stat._
(1853-54), 492-94; _Code of Civil Proced. and Other Gen. Laws_
(1862), 85-88; _Codes and Gen. Laws_ (1892), II, 1317 ff.; I,
967; Act of Oct. 24, 1866: _Acts and Res._ (1866), 10, 11; (19)
Pennsylvania: PEPPER AND LEWIS, _Digest_ (1896), II, 2878-83;
(20) South Dakota: _Stat._ (1899), II, 1018-25, 1917; _Rev.
Codes_ (1903), 596-99; (21) Utah: _Laws_ (1888), 88-91; _Rev.
Stat._ (1898), 329-31; (22) Washington: _Stat. of the Ter._
(1854), 404, 405; _ibid._ (1865-66), 80-85; _Ann. Codes and
Stat._ (1897), I, 1174-78; II, 1952; (23) Wisconsin: _Stat. of
the Ter._ (1838-39), 139, 140; _Rev. Stat._ (1849), 391-93; _Ann.
Stat._ (1889), I, 1354-56; _Wis. Stat._ (1898), I, 1692-94; (24)
Wyoming: _Rev. Laws_ (1870), 458-61; _Rev. Stat._ (1887), 415-17;
_ibid._ (1899), 790-92, 1213; (25) Alaska: _U. S. Statutes at
Large_, XXXI, 494, 495. Laws since 1899 are cited in the previous
footnotes.]

_c_) _Certificate and record._--The laws of the middle and western states have reached substantial harmony regarding the preliminaries of marriage. The provisions for license and the other leading features of matrimonial administration in their main features are much the same, except in a few of the older commonwealths, where the system of ecclesiastical banns and some other peculiar usages are still maintained. Thus in Delaware, by the act of 1790, no minister is allowed to conduct the ceremony without first receiving a license authorizing the persons to wed, or, instead, unless the banns shall "be published between such persons intending to marry, at some church, chapel, meetinghouse, or stationary place of public religious worship belonging to the district, or of the congregation wherein the woman so intending to be married shall be resident, or in the next adjacent congregation of the same society, on the two several Sundays before the celebration thereof, immediately after divine service." The license is granted by the president or commander-in-chief duly attested under his sign manual; and it is issued from the office of the secretary of state. "In order to avoid fraud and collusion in obtaining such license," the person applying is required to enter into bond with good security in such sum as the president shall judge proper.[1489] All marriage licenses are to be lodged with the prothonotaries and justices of the peace of the respective counties, or with such of them as the secretary may think fit for convenience of the people, and these officers are required to submit a report every six months.[1490] After a century the system thus outlined is still maintained in its essential features. License or banns, "published at some place of stated religious worship, within the hundred of the woman's residence, on two Sabbaths immediately after divine service," is yet sanctioned. The requirement of bond is still retained.[1491] It is the duty of the clerk of the peace to designate at least six justices of the peace in his county to dispense licenses; and the state derives a revenue of two dollars for each license issued. By a provision still appearing in the statute-book, though obsolete in practice, negroes or mulattoes may be married without license or publication of banns; provided "that each party (being free) shall produce the certificate of the justice of the peace of the county that such party has made before him satisfactory proof of freedom; or (being ... servant), shall produce the written consent of his master or mistress."[1492]

[Footnote 1489: Following is the form of the marriage-license
bond: "That if there shall not hereafter appear any lawful let
or impediment, by reason of any precontract, consanguinity,
affinity, or any other just cause whatsoever, but that (the
parties) may lawfully marry; and that there is not any suit
depending before any judge, ecclesiastical or civil, for or
concerning such precontract, and also if the said parties, and
each of them, are of the ages aforesaid, to wit, female of
eighteen and male of twenty-one years, and are not under the
tuition of his or her parents, or have the full consent of his or
her parents or guardians, respectively, to the said marriage; and
if they, or either of them, are not indented servants and do and
shall save harmless, and keep indemnified the president and his
successors, for and concerning the premises, and shall likewise
save harmless and keep indemnified the minister or preacher of
the gospel, who shall join the said parties in matrimony, for or
by reason of his so doing; then the obligation to be void, else
to remain in full force; which said bond shall be filed of record
in the office of the secretary."-_Laws of Del._ (1797), II, 974,
975.]

[Footnote 1490: By act of June 15, 1793: in _Laws of Del._
(1797), II, 1127, 1128.]

[Footnote 1491: _Rev. Stat._ (1893), 103.]

[Footnote 1492: _Ibid._, 594; and _cf._ _ibid._ (1874), 473.]

The legislation of Ohio shows almost equal conservatism. For many years after the organization of the Northwest Territory a triple optional system of banns, license, or posting was there maintained. The law of 1788 requires that either on Sundays, holidays, or other days of public worship, in the towns where the bride and groom respectively dwell, the banns shall be thrice published; or that a written notice, under the hand and seal of a judge or a justice of the peace of the county, shall be affixed in some public place in such towns; or else a license shall be obtained from the governor authorizing the marriage without publication.[1493] The details of the plan were changed in 1803. License is then to be obtained from the clerk of the court of common pleas for the county where the woman resides. Twice publication of banns, the first time ten days before the wedding; or notice by posting during fifteen days, is declared sufficient. In the case of minors a license may be issued only when consent of parent or guardian is personally given or certified to, attested by two witnesses, one of whom must personally appear and make oath or affirmation that he saw the parent or guardian subscribe or acknowledge the same.[1494] After 1824 provision for public posting is no longer made,[1495] thus reducing the Ohio plan to the more familiar system of optional civil license or ecclesiastical banns which still survives. License is now issued by the judge of probate in the county of the female; and the law governing the consent of parent or guardian in case of minors is identical with that of 1803, except that since 1810 persons under age who have before been married are not required to give evidence of such approval.[1496]

[Footnote 1493: CHASE, _Stat. of Ohio and the N. W. Ter._
(1833-35), I, 101.]

[Footnote 1494: Act of April 4, 1803; CHASE, _Stat._, I, 354,
355.]

[Footnote 1495: It is omitted in the act of Jan. 6, 1824: CHASE,
STAT., II, 1407, 1408; nor does it appear in SWAN, _Stat._
(1854), 569 ff.]

[Footnote 1496: _Ann. Rev. Stat._ (1897), II, 3016. _Cf._ the
act of Feb. 16, 1810: CHASE, _Stat._, I, 672, 673. See the
act of April 25, 1898, requiring a statement under oath from
persons applying for license; also evidence of parental consent
in case of minors; and allowing the parent or guardian, when
non-resident, to appear before a judge of a court of record
in the county where he is domiciled, and give his consent in
writing; such written consent must be attested by two witnesses,
certified to by the judge, and be forwarded to the probate judge
of the county where the license is to be issued: _Laws_ (1898),
309-11.]

By the first matrimonial statute of Michigan in 1805 a license system is not established; but evidence of parental consent to the marriage of minors is to be presented to the minister or magistrate performing the ceremony. Within one hundred days the latter is to return a certificate of the celebration to a clerk of the court in the district where it takes place, who is required to keep a record and report annually to the clerk of the superior court of the territory.[1497] So the law remained until 1820, when the triple optional system, as it then existed in Ohio, was introduced;[1498] but this is not found in the existing law, which requires license in all cases according to the more common American usage.

[Footnote 1497: _Laws of the Ter. of Mich._ (1871-84), I, 30-32.]

[Footnote 1498: _Ibid._, I, 646-49.]

Neither banns nor license has at any time been required in New York during the century. Instead, as already pointed out, the person conducting the celebration is authorized to identify the parties by examining them or any other persons under oath.[1499] New Jersey has maintained a similar plan, except that non-residents are required to obtain a license from the county clerk five days before the wedding.[1500] At present in case of minors the powers and procedure of the person solemnizing are substantially the same as those of the county clerk or other officer where the license system prevails.[1501]

[Footnote 1499: _Cf._ _Rev. Stat. of N. Y._ (1827-28), 140: and
_ibid._ (1889), IV, 2597.]

[Footnote 1500: _Acts of N. J._ (1897), 378.]

[Footnote 1501: See above, subsec. _a_) and _cf._ _Laws of N. J._
(1800), 158 (act of 1795) with _Gen. Stat._ (1896), II, 2005;
_Pub. Laws_ (1889), 139. The celebrant may administer an oath as
to residence to either party; _Acts_ (1900), 327, 328.]

Pennsylvania has also followed methods peculiar to herself. From 1730 to 1885 certificate of parental consent seems to have been required for the marriage of minors; and such certificate was presented directly to the person or society conducting the celebration. By an act of the last-named year there was introduced a license system which in 1893 was modified so as to permit a license to be obtained from the clerk of the orphans' court, not only in the county where the marriage is to take place but also in the county of the residence of either the man or the woman.[1502] The clerk is to keep a marriage-license docket, "in which he shall make a complete record of the issuing of said licenses, and all matters which he shall be required to ascertain, relative to the rights" of the persons to obtain a license, "together with their ages and residences." In getting a license the persons may proceed in one of two ways. "Either separately or together" they may apply directly to the clerk, who by oath or affirmation is authorized to inquire concerning the legality of the contemplated marriage, and if there be no legal objection, to issue the license; or in like manner, if they prefer, they may "appear before any magistrate, alderman, or justice of the peace of the township, ward or county, wherein either ... resides, and in the county where the license is desired, who may ... inquire of them touching the legality of the contemplated marriage." These answers and the replies, duly subscribed and sworn to before the officer, may be forwarded to the clerk of the court, who if satisfied therewith, and that no legal objection to the marriage exists, may issue the license. But if either of the persons intending to marry is under the age of twenty-one, the consent of parent or guardian, given personally or attested by witnesses in the usual way, is necessary. The license shall have appended to it two certificates, one marked "original" and the other "duplicate." The certificate marked "original" shall be given by the solemnizer to the persons married; and the other must within thirty days be returned to the clerk in the county of the celebration, to be filed of record. It is, however, especially provided that in all cases where the persons intend solemnizing their own marriage, the clerk in "the proper county shall certify their right so to do in a declaration in the following form": "Legal evidence having been furnished to me, in accordance with the act of assembly ... this certifies that I am satisfied that there is no legal impediment to your joining yourselves together in marriage." When self-_gifta_ thus takes place, the persons contracting are required to make duplicate certificates of their own wedding celebration, returning one of them to the clerk, as in other cases provided by law.[1503]

[Footnote 1502: See _in re_ Marriage License Act, 15 _Pa. C. C._,
345 (1894); and PEPPER AND LEWIS, _Digest_, II, 2881, note.]

[Footnote 1503: _Laws_ (1885), 146; _ibid._ (1893), 27; _ibid._
(1887), 170; PEPPER AND LEWIS, _Digest_ (1896), II, 2878-83.]

In the remaining nineteen states of this group not yet considered, except Alaska, the simple license system has been introduced. Save here and there in certain cases specially provided for, a license is always required. Thus, by the Minnesota law, "previous to persons being joined in marriage, a license shall be obtained from the clerk of the district court of the county in which the female resides," or, if she be not a resident of the state, then from the same officer "in the county where the marriage is to take place in the state;" but if there shall be no such clerk in either of the counties specified, no license is required. The clerk may inquire of the persons under oath as to the legality of the proposed marriage. If he "shall be satisfied that there is no legal impediment thereto," he shall grant a license and make a record thereof. Persons under age and not having had a former husband or wife must have the consent of the parents or guardians personally given or certified under their hands and seals, "attested by two witnesses, one of whom shall appear before said clerk, and make oath or affirmation that he saw said parent or guardian subscribe, or heard him or her acknowledge the same." If a "clerk shall in any other manner issue or sign any marriage license, he shall forfeit and pay a sum not exceeding one thousand dollars" to the persons aggrieved. The statute allows the clerk a fee of two dollars for each license issued.[1504]

[Footnote 1504: _Gen. Stat. of Minn._ (1894), I, 1264, 1265.

Following is the form of license or "certificate" in Colorado:
"Know all men by this Certificate, that any regular ordained
minister of the Gospel authorized by the rules and usages of the
Church or denomination of Christians, Hebrews, or religious body
of which he may be a member, or any judge or justice of the peace
to whom this may come, he not knowing of any lawful impediment
thereto, is hereby authorized and empowered to solemnize the
rites of matrimony between .... of .... of the county of ....
Previously married? .... Wife deceased? .... Divorced? ....
When? .... Where? .... On what grounds? .... And .... of .... of
the county of .... Previously married? .... Husband deceased?
.... Divorced? .... When? .... Where? .... On what grounds?
...."--MILLS, _Ann. Stat. of Col._ (1891), III, 828.]

Similar powers and functions are exercised by the clerk of the district court in Iowa and Montana;[1505] the county clerk, in California, Colorado, Illinois, Michigan,[1506] Nevada, Oregon, Utah, Wisconsin, and Wyoming; the clerk of the circuit court, in Indiana and South Dakota; the probate judge, in Kansas and Ohio; the county judge, in Nebraska; the county auditor, in Washington; the county recorder, in Idaho; and by the judge of the county court, in North Dakota. The license is issued by such officer from the county of the woman's residence, in Indiana, Ohio, and Oregon; from the county where either the man or the woman resides, in Michigan; from the county where the marriage is to take place, in California, Idaho, Illinois, Iowa, Montana, Nebraska, North Dakota, South Dakota, and Wyoming; from the "proper" county, in Kansas; and from "any county," in Colorado; from "a county auditor" in Washington; the county where one or both of the persons dwell, or from any county when both are non-residents, in Nevada; from the county of the bride's residence, or, if she be a non-resident, from that of the proposed marriage, in Wisconsin and Minnesota; and in Utah, from the county where the female lives, provided that when she is a widow or of full age, and it is granted on her application, it may be issued from any county. In Kansas and Indiana a license is not required in the case of Friends marrying according to their own usage; and the same is true in Iowa, California, and South Dakota, for the members of "any particular denomination having, as such, any peculiar mode of entering the marriage relation." Wisconsin requires the license to be obtained not less than five days previous to the persons being joined in marriage; and has also provided for celebration without license in urgent cases. Upon the application of either party to a proposed marriage, any county judge, court of record, or presiding judge thereof, in his discretion, by order may authorize solemnization without license or the five days' notice. Such order must be delivered to the person performing the ceremony, who is to return it in place of or in connection with the license to the register of deeds or of vital statistics.[1507] Michigan has likewise made provision for cases of emergency where social expediency seems to require exceptional rules. By a law of 1897, amended in 1899, entitled "an act to provide for the protection of the reputation and good name of certain persons," the judge of probate in each county is authorized to issue without publicity a license to any female who has lived with a man as his wife, or who for any other reason expressed in her application, deemed sufficient by the magistrate, "desires to keep the exact date of the marriage a secret, to protect the good name of herself and the reputation of her family."[1508]

[Footnote 1505: Act of March 14, 1895: in _Comp. Codes and Stat._
(1895), 476.]

[Footnote 1506: In Michigan a girl under eighteen must bring
written consent of parent or guardian before license will be
issued: _Pub. Acts_ (1895), 536, 537.]

[Footnote 1507: Act of April 29: _Laws of Wis._ (1899), 529-31;
_cf._ the act of 1903: _Laws_, 477, 478.]

[Footnote 1508: The judge of probate must issue a license without
publicity to a "female making application to him, under oath,
containing a statement that she is with child, which if born
alive before her marriage will become a bastard, or has lived
with a man," etc. With consent of parent or guardian, such judge
is empowered to marry persons under marriageable age, making
such a statement, whenever he believes the marriage "would be a
benefit to public morals." He is required to "file a complete set
of all papers in each case in a private file, and shall within
ten days after the marriage forward the duplicate thereof to the
secretary of state, who shall file such duplicate in a private
file and record the same in a private register." These private
files of the probate judge and secretary of state "shall be open
to inspection only upon the written order of the judge of any
circuit or the supreme court of this state, and only for such use
as is designated in such order. Such order shall be made only
upon the written request of the person or persons who were so
married, or when necessary to the protection of property rights
arising from or affected by such marriage."--_Pub. Acts of Mich._
(1897), 230, 231; _ibid._ (1899), 363, 364.]

Generally throughout the region under discussion penalties by fine or imprisonment are prescribed for celebration without a license or for illegally issuing the same.

In every instance, except in Alaska, the person or society conducting the celebration is required to make a return to the officer authorized to receive it, either in the town or, usually, the county, where the license was issued, or in that of the marriage.[1509] Such return is made either by separate certificate, by indorsement on the license, or by certificate appended to it. Several states, however, have enacted special provisions. In South Dakota, for example, the marriage certificate must be "filed with the clerk of the city or town where the marriage was solemnized, or where either of the parties resides," or with the "register of deeds of such county." By the Colorado statute return is made to the clerk issuing the license; and the solemnizer must also send a report to the clerk of the county where the marriage takes place. In Iowa the person performing the ceremony is to make return to the clerk of the district court; and, "when the services of a clergyman or magistrate are dispensed with, the husband must make the return." California has enacted that "when unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman. A certificate of such marriage must be made and delivered by the clergyman to the parties, and recorded upon the records of the church of which the clergyman is a representative;" and "no other record need be made." Furthermore, when members of a religious society, having as such peculiar rites, are married without a license, as the law permits, they must join in a written declaration of the marriage, which shall be signed by themselves and attested by at least three witnesses. Within thirty days after the wedding this declaration must be filed by the husband with the county recorder, who, after it is duly acknowledged, shall record the same as in grants of real property.[1510] New York requires that the certificate, given to each of the married persons on request, signed by the officiating magistrate, shall be filed and recorded, if within six months it is presented to the clerk of the city or town where the marriage took place, or where either the bride or groom resided. When it is a clergyman who conducts the celebration, his certificate thereof may in the same manner be filed and recorded, "if there be endorsed thereon or annexed thereto, a certificate of any magistrate residing within the same county with such clerk, setting forth that the minister is personally known to such magistrate, and has acknowledged the execution of the certificate in his presence;" or that the execution was proved to the magistrate by the oath of a witness known to him.[1511]

[Footnote 1509: Return is made to the designated officer of
the county (or town) where the license was issued, in Idaho
(1899), Kansas, Michigan, Montana, Nebraska, Nevada (1899), and
Utah; but where the marriage was solemnized, in California,
Delaware, Illinois, Indiana, Minnesota, North Dakota, Washington,
Wisconsin, Wyoming, and Iowa. The Pennsylvania act of 1893
requires the return to be made to the clerk of the orphans'
court in the county where the marriage was solemnized; and this,
doubtless, supersedes the law of 1885, which designates for this
purpose the county from which license was issued, and which also
appears in PEPPER AND LEWIS, _Digest_ (1896), II, 2880, 2881,
2883. By the Ohio act of April 25, 1898, return is made to the
probate judge of the county where the license was issued, or
where the congregation in which publication of banns was made is
located, or where the marriage was celebrated: _Laws_ (1898),
309-11. Of course, the county of issue of license and the county
of celebration are usually the same. In Oregon return is made
both to the county clerk issuing the license and to the clerk of
the county of the marriage: _General Laws_ (1903), 99, 100.]

[Footnote 1510: _Statutes of S. D._ (1899), II, 1023; _Rev.
Codes of S. D._ (1903), 598; MILLS, _Ann. Stat. of Col._ (1891),
II, 1679; _Code of Iowa_ (1897), 1124, 1125; _Amendments to the
Civil Code of Cal._ (1873-74), 187; DEERING, _Codes and Statutes_
(1886), II, 27, 28; Act of 1897: _Amendments to the Civil Code_,
sec. 79-1/2, p. 186.]

[Footnote 1511: _Rev. Stat. of N. Y._ (1889), IV, 2598; the same
in _Rev. Stat._ (1827-28), 140, 141.]

By the rules prevailing in every state, save New Jersey, the official receiving the return must register or file the same of record. The prescribed term within which the report of the celebration must be submitted is thirty days (or "one month") in California,[1512] Colorado, Idaho, Illinois, Kansas, Minnesota, Montana, Nevada, New Jersey,[1513] North Dakota, Ohio,[1514] Oregon, Pennsylvania,[1515] South Dakota, and Utah; ninety days (or "three months"), in Indiana, Iowa, Michigan, Nebraska, Washington, and Wyoming; and six months in New York. South Dakota, in addition to the return by the solemnizer, provides that within six months after the wedding the certificate given to the persons married may be "filed" in the manner above described; and, when thus filed, it must be entered in a book to be provided by the clerk or register for the purpose.[1516] By the Wisconsin law the license, with a certificate of the marriage, must be returned by the person conducting the celebration to the register of deeds of the county where the license was issued, provided that in cities of the first class the report shall be sent to the registrar of vital statistics, who is to place it on file.[1517] In Delaware the person solemnizing must keep a record and "annually, in March, deliver to the recorder of deeds for the county, a true extract therefrom" of all entries for the year preceding.[1518]

[Footnote 1512: In California the original license, with the
certificate of solemnization indorsed and attached must be filed
with the county recorder in thirty days: DEERING, _Codes and
Stat._ (1886), II, secs. 73, 74, pp. 26, 27; but, in addition,
the state registration law requires every person solemnizing
marriages to keep a "registry," and "quarterly" to submit to the
county clerk a certified copy of it: _ibid._, I, secs. 3074,
3077, pp. 460, 461.]

[Footnote 1513: So by the act of Feb. 15: _Pub. Laws of N. J._
(1888), 52 ff., as amended by that of March 29: _Pub. Laws_
(1892), 351; both in _Gen. Stat._ (1896), II, 2011, 2012.]

[Footnote 1514: The period within which the certificate must be
returned to the probate judge was formerly ninety days: _Ann.
Stat. of Ohio_ (1897), II, 3017; but by the act of April 25,
1898, it is fixed at thirty days: _Laws_ (1898), 309-11.]

[Footnote 1515: By the act of March 1, 1893, amending that of
June 23, 1885: PEPPER AND LEWIS, _Digest_ (1896), II, 2880, 2881,
2883.]

[Footnote 1516: _Stat. of S. D._ (1899), II, 1021, 1023.]

[Footnote 1517: A period within which the return is to be made
does not seem to be fixed: Act of April 29: _Laws of Wis._
(1899), 530.]

[Footnote 1518: _Rev. Stat. of Del._ (1893), 594; practically the
same in _ibid._ (1874), 472-74.]

Only in Wisconsin is there any provision for return when the marriage of a resident takes place outside the state.

Provision for giving a certificate to the persons married, on request or otherwise, is made by Alaska, California, Idaho, Iowa, Michigan, Minnesota, Montana, Nebraska, Nevada, New York, Oregon, Pennsylvania, South Dakota, Washington, Wisconsin, and Wyoming. Creditable progress is also shown in a number of the states of this group in providing for a proper record of marriages, and for the collection, registration, and publication of social statistics. Thus in California, Delaware, Idaho, Iowa, Michigan, Nevada, New Jersey, New York, Ohio, South Dakota, and Wisconsin the person conducting the celebration is required to keep a record;[1519] and everywhere, save in one instance, as already seen, the clerk or other officer of the county or town must register the facts contained in the license issued or the certificate returned; and usually the original documents are filed for preservation.[1520] Moreover, a goodly number of commonwealths have wisely created systems of state registration which promise to be of great service in the future of American society. Beginning in 1881, Delaware has established such a system. The state board of health, composed of "seven physicians of skill," has general oversight, appointing one of its own number as secretary, who performs the duties of "superintendent of registration of vital statistics." To him the recorders of the several counties are required to send information.[1521] An elaborate registration act was adopted in New Jersey in 1888; and this, as amended in 1892, is still in force. Thirty days after the solemnization of any marriage a certificate thereof is to be sent to the proper officer, setting forth the "name, age, parentage, birthplace, occupation, and residence of each of the persons married, the time and place of the marriage, the condition of each of the persons married, whether single or widowed, the name of the minister, magistrate, or person by whom, or of the religious society before which the marriage was solemnized, and the names and residences of the witnesses." The certificate is to be returned to the "registrar of vital statistics," or, if there be none, the clerk of any city, borough, town, or other municipal government, or to the assessor or clerk of a township. These local officers are required each month to forward the certificates and the "special return" provided for by law to the state board of health, whose secretary is styled the "medical superintendent of vital statistics."[1522]

[Footnote 1519: The Pennsylvania act of 1849 requiring a
transcript of the marriage record to be given to the person
applying therefor, on payment of the prescribed fee, still
appears to be in force: PEPPER AND LEWIS, _Digest_ (1896), II,
2879.]

[Footnote 1520: Both Oregon and Washington allow the solemnizer
to keep the license, the clerk or auditor first recording the
facts contained therein: _Codes and Stat. of Ore._ (1902), II,
1684; _Ann. Codes and Stat. of Wash._ (1897), I, 1177, 1178.]

[Footnote 1521: See the act of April 7, 1881: _Laws_, XVI, chap.
381; act of March 13, 1879, amended and republished, April 11,
1893: _Rev. Stat._ (1893), 296-98, 405-8.]

[Footnote 1522: Act of Feb. 15: _Pub. Laws of N. J._ (1888), 52
ff.; act of March 29: _ibid._ (1892), 351; _Gen. Stat._ (1896),
II, 2006-12, 1634, 1635 (board of health); act of Feb. 27, 1901:
_Acts of N. J._, 36.]

Ohio has a similar plan of local and state administration. The mayor of each of the smaller cities and villages, and six persons nominated by the council, including two medical practitioners, constitute a board of health which is authorized to appoint a health officer and "create a complete and accurate system of registration of births, marriages, deaths, and interments, for the purpose of legal and genealogical investigations, and to furnish facts for statistical, scientific, and sanitary inquiries." The secretary of state is required each year to prepare and submit to the general assembly a full and accurate report of the statistics of Ohio.[1523] A system of state registration of births, marriages, deaths, and divorces has existed in Michigan since 1867. The secretary of state is required to furnish the clerks of the respective counties with suitable blank books for record and forms for reports. The reports of these local officials are to be properly bound and indexed under the direction of the secretary; "and with such assistance as may be voluntarily rendered by any authorized committee appointed by the medical faculty of the University of Michigan, or by any regularly authorized medical society ... , he shall prepare such tabular statements, results, and deductions therefrom as will render them of practical utility, and make report therof annually to the governor." But in reality this report, under the general direction of the secretary, is prepared and published by the secretary of the state board of health.[1524]

[Footnote 1523: The law does not apply to cities of the first
class nor to those of the second class, Grades 1, 2, and 3_a_.
Special provision is made for a board of health in Cincinnati
(cities of the first grade of the first class): BATES, _Ann. Rev.
Stat._ (1897), I, 97, 978, 979.]

[Footnote 1524: _Cf._ act of 1867: _Pub. Acts_ (1867), 266; that
of 1869: _ibid._ (1869), 214; _ibid._ (1899), 67, 68; and HOWELL,
_Gen. Stat._, 1, 96, 276-80, 464; _Comp. Laws_ (1899), II, 1451
ff.]

As early as 1852 Wisconsin made provision for registration of births, marriages, and deaths; and the plan then adopted, with some modification, still exists. By a statute of 1897 the register of vital statistics in every city having such an officer is required to keep a record of all marriages celebrated therein, in the same way as he does of births and deaths. To him the persons or societies conducting marriage celebrations are required to send certificates thereof; and every week these certificates must by him be forwarded to the register of deeds of the county or city. For the commonwealth the secretary of the state board of health, under the direction of the secretary of state, performs the same functions as discharged by that official in Michigan.[1525]

[Footnote 1525: _Cf._ _Acts_ (1852), 763-69; _Rev. Stat._ (1858),
618-22; _Ann. Stat._ (1889), I, 648-52; _Laws_ (1897), 373; _Wis.
Stat._ (1898), I, 1055, 785 ff.]

Provision for similar registration, under authority of the state boards of health, is made by the laws of Indiana, Iowa, Kansas, Minnesota, and Pennsylvania. California has a similar statute. Careful provision is made for keeping registers of births by physicians and midwives; of deaths, by clergymen who officiate at funerals, coroners who hold inquests, sextons and undertakers who bury deceased persons; and by those who conduct marriage celebrations. Certified copies of all these registers are to be filed quarterly with the respective county recorders; and every three months these officials are required to transmit a "certified abstract" of their own registers to the secretary of the state board of health at Sacramento. This body consists of seven physicians appointed for four years by the governor; and at each biennial session of the legislature it is authorized to make a report, "with such suggestions as to legislative action" as it deems proper.[1526]

[Footnote 1526: DEERING, _Codes and Stat._ (1886), I, 442 ff.,
460 ff.]