Chapter XXII: Part II: , being for British Colonies; and Reports of the Laws of (1)

Marriage and Divorce_, Parts I, II (London, 1894).

On the divorce problem see _An Essay on Marriage; or, the
Lawfulness of Divorce_ (Philadelphia, 1788), presenting the
principal arguments in its favor; Westbrook, _Marriage and
Divorce_ (Philadelphia, 1883); _idem_, _The Clerical Combination
to Influence Civil Legislation on Marriage and Divorce_
(Philadelphia, 1887); Fisher, _The Causes of the Increase
of Divorce_ (Boston, 1883); Richard, _Marriage and Divorce_
(London, 1888); Robinson, "The Diagnostics of Divorce," in
_Jour. of Soc. Science_, No. 14 (Boston and New York, 1881);
Janes, "Divorce: Sociologically Considered," in _New Englander
and Yale Review_, LIV (New Haven, 1891); Phillips, "The Divorce
Question," in _International Review_, XI (New York, 1881);
Savage, "Matrimony and the State," in _Forum_, X (New York,
1890); Adler, "The Ethics of Divorce," in _Ethical Record_, II,
III (Philadelphia, 1889-90); Wright, "Marriage and Divorce,"
in _Christian Register_, LXX, 655-58 (Boston, 1891); Lecky,
_Democracy and Liberty_, I, chap. vii (New York and London,
1896); and Bryce, "Marriage and Divorce," in his _Studies in
Hist. and Jur._ (New York and London, 1901). The following are
very conservative: David Hume, "Of Polygamy and Divorces," in
his _Essays_, I (London, 1875); Little, "Marriage and Divorce:
the Doctrine of the Church of England," in _Contemporary
Review_, LXVIII (London, 1895); Hurd, "Scriptural Ground of
Divorce," in the _New Englander and Yale Review_, XLV (New
Haven, 1886); Phelps, "Divorce in the United States," in
_Forum_, VIII (New York, 1889); Caverno, _Treatise on Divorce_
(Madison, 1899); Gladstone, symposium with Bradley and Dolph on
"The Question of Divorce," in _North Am. Review_, CXLIX (New
York, 1889); Greeley, "Marriage and Divorce: a Discussion with
Robert Dale Owen," in _Recollections of a Busy Life_, 571 ff.
(New York, 1869); _idem_, _Love, Marriage, and Divorce, and the
Sovereignty of the Individual_ (New York, 1853), a discussion
with James and Andrews; Convers, _Marriage and Divorce_
(Philadelphia, 1889), presenting the Catholic view; Dike, "Some
Aspects of the Divorce Question," in _Princeton Review_, N.
S., XIII (New York, 1884); and Woolsey, _Divorce and Divorce
Legislation_ (2d ed., New York, 1882).

In Italy divorce is favored by Gioja, _Teoria civile e penale
del divorzio_ (Milan, 1803); Mazzoleni, _La famiglia nei
rapporti coll individuo e colla società_ (Milan, 1870); Bianchi,
_Il divorzio_ (Pisa, 1879); Bernardo, _Il divorzio nella teoria
e nella pratica_ (Palermo, 1875); Marescalchi, _Il divorzio e
la instituzione sua in Italia_ (Rome, 1889); and opposed by
Giudici, _Memoria sul divorzio_ (Milan, 1798); Rosmini, _Des
lois civiles concernant le mariage des chrétiens_ (trans.,
Paris, 1853); Zamperini, _Il divorzio considerato nella teoria
e nella pratica di D. di Bernardo_ (Verona, 1876); and Gabba,
"The Introduction of Divorce in Italy," in _Am. Church Review_,
XXXIII (New York, 1881). In France the rise of a sentiment
favoring divorce may be traced in _Cri d'une honnête femme qui
reclame le divorce_ (London, 1770); _Contrat conjugal_ (Paris,
1781; Neuchatel, 1783); Bouchotte, _Observations sur le divorce_
(Paris, 1790); Hennet, _Du divorce_ (Paris, 1792); Tissot, _Le
mariage, la séparation, et le divorce_ (Paris, 1868), giving an
account of the principal French and Italian writers; Naquet, _Le
divorce_ (Paris, 1877); Bertillon, in the works above cited;
Cavilly, _La séparation de corps et le divorce_ (Paris, 1882);
Fiaux, _La femme, le mariage, et le divorce_ (Paris, 1880); and
Dumas, _La question du divorce_ (Paris, 1879; 5th ed., 1880).
Divorce is opposed by Madame Necker, _Réflexions sur le divorce_
(Paris, 1792; or Lausanne, 1794); Bonald, _Du divorce_ (Paris,
1801); Malleville, _Du divorce_ (Paris, 1801); Chrestien,
_Dissertation historique_ (Paris, 1804); Hennequin, _Du divorce_
(Paris, 1832); Ozanam, "Du divorce," in his _Mélanges_, I
(Paris, 1859); Daniel, _Le mariage chrétien et le Code Napoléon_
(Paris, 1870); Durrieux, _Du divorce_ (Paris, 1881); Vidieu,
_Famille et divorce_ (Paris, 1879). This book was answered by
Dumas in the work just cited; and he in turn was replied to by
Féval, _Pas de divorce_ (11th ed., Paris, 1880); and Hornstein,
_Le divorce_ (Paris, 1880). Kellen, _Was ist die Frau?_
(Leipzig, 1892) gives an account, with extracts, of Dumas's
utterances on social questions.

Problems of the family are discussed by Allen, "The New England
Family," _New Englander_, XLI (New Haven, 1882); Dike, _Perils
to the Family_ (Auburndale, 1887); _idem_, _The Family in the
History of Christianity_ (New York, 1886); _idem_, "Problems
of the Family," in _Century_, XXXIX (New York, 1890); _idem_,
"The Religious Problem of the Country Town," in _Andover
Review_, II, III, IV (Boston, 1884-85); Mathews, "Christian
Sociology: the Family," in _Amer. Jour. of Sociology_, I
(Chicago, 1896); Blaikie, _The Family: Its Scriptural Ideal and
its Modern Assailants_ (London, 1889); Mulford, _The Nation_,
chap. xv (New York, 1871); Bushnell, "The Organic Unity of
the Family," in his _Christian Nurture_ (New York, 1861);
Potter, "The Message of Christ to the Family," in his _Message
of Christ to Manhood_ (Boston, 1899); Peabody, "Teachings of
Jesus Concerning the Family," in his _Jesus Christ and the
Social Question_ (New York, 1900); Buckham, "The Relation of
the Family to the State," in _International Review_, XIII (New
York, 1882); Pearson, "Decline of the Family," in his _National
Life and Character_ (London, 1893); answered by Muirhead, "Is
the Family Declining?" in _Internat. Jour. of Ethics_, VII
(Philadelphia, 1896); Commons, "The Family," chap. 10 of his
"Sociological View of Sovereignty," in _Am. Jour. of Sociology_,
V (Chicago, 1900); Stewart, _Disintegration of the Families
of the Workingmen_ (Chicago, 1893); Salter, _The Future of
the Family_ (Chicago, 1885); Devas, _Studies of Family Life_
(London and New York, 1886); Henderson, _Social Elements_ (New
York, 1898); Small and Vincent, _Study of Society_ (New York,
Cincinnati, and Chicago, 1894); Ward, _Dynamic Sociology_, I,
chap, vii (New York, 1883); Thwing, _The Family_ (Boston, 1887);
Planta, _Reconstruction der Familie_ (Chur, 1886); Hermann, _Die
Familie vom Standpunkte der Gesammtwirthschaft_ (Berlin, 1889);
Thiersch, _Ueber Christliches Familienleben_ (8th ed., Augsburg,
1889); Naumann, _Christenthum und die Familie_ (Berlin, 1892);
Riehl, _Die Familie_ (11th ed., Stuttgart, 1897); Gasparin,
_Die Familie_ (Gütersloh, 1870); Koenigswarter, _Hist. l'org.
de la famille en France_ (Paris, 1851); Godelle, _Des principes
fond. de la famille_ (Metz, 1869); Grevin, _L'égalité dans la
famille_ (Douai, 1876); Bobbio, _Sulle origini e sul fond. della
famiglia_ (Turin, 1891); Assirelli, _La famiglia e la società_
(Milan, 1887); Janet, _La famille_ (10th ed., Paris, 1877); Le
Play, _L'organisation de la famille_ (4th ed., Tours and Paris,
1895); Durkheim, _Int. à la sociologie de la famille_ (Bordeaux,
1888); Bonjean, _Enfants révoltés et parents coupables_
(Paris, 1895); Baudrillart, _La famille et l'éducation en
France_ (Paris, 1874); Morillot, _Condition des enfants nés
hors mariage_ (Paris, 1865); Lallemand, _Hist. des enfants
abandonnés_ (Paris, 1885); _idem_, _La question des enfants
abandonnés_ (Paris, 1885); Milhaud, _Protection des enfants sans
famille_ (Paris, 1896); Gaume, _Hist. de la société domestique_
(Paris, 1844), presenting the strong Catholic view; Pelletan,
_La famille: la mère_ (Paris, n. d.). For Germany and England
see Biographical Note XI.

Marriage problems are discussed by Giles, _Treatise on Marriage_
(London, 1771); Ryan, _Philosophy of Marriage_ (3d ed., London,
1839); Amat, _Treatise on Matrimony_ (San Francisco, 1864);
Watkins, _Holy Matrimony_ (London, 1895); Potwin, "Should
Marriage be Indissoluble?" in _New Englander and Yale Review_,
LVI (New Haven, 1892); Malcome, _The Christian Rule of Marriage_
(Philadelphia, 1870); Pomeroy, _Ethics of Marriage_ (New York,
1889); Gray, _Husband and Wife_ (2d ed., Boston, 1886); Lea,
_Christian Marriage_ (London, 1881); Harte, _Laws and Customs
of Marriage_ (London, 1870); Quilter, _Is Marriage a Failure?_
(Chicago, 1889); Colfavru, _Du mariage ... en Angleterre et aux
États-Unis_ (Paris, 1868); Carlier, _Le mariage aux États-Unis_
(Paris, 1860); Cook, "Marriage Celebration in the U.S.," and
"Reform of the Marriage Celebration," both in _Atlantic_, LXI
(Boston, 1888); Snyder, _The Geography of Marriage_ (2d ed.,
New York and London, 1889); Chavassé, _Traité de l'excellence
du mariage_ (Paris, 1685); Gasparin, _Le mariage au point
de vue chrétien_ (2d ed., Paris, 1844); Picot, _Le mariage_
(Paris, 1849); Cadet, _Le mariage en France_ (Paris, 1870);
Acollas, _Trois leçons ... du mariage_ (Geneva and Berne,
1871); _idem_, _Le mariage_ (Paris, 1880); Sincholle, _Le
mariage civil et le mariage religieux_ (Poitiers, 1876);
Legrand, _Le mariage et les mœurs en France_ (Paris, 1879);
Hayem, _Le mariage_ (Paris, 1872); Schoelcher, _La famille, la
propriété, et le christianisme_ (Paris, 1875); Hippel, _Ueber
die Ehe_ (4th ed., Frankfort and Leipzig, 1794); Volkmar,
_Philosophie der Ehe_ (Halle, 1794); Krug, _Philosophie der
Ehe_ (Reutlingen, 1801); Jörg and Tzschirner, _Die Ehe aus dem
Gesichtspunkte der Natur, der Moral, und der Kirche_ (Leipzig,
1819); Stäudlin, _Geschichte der Vorstellungen und Lehren von
der Ehe_ (Göttingen, 1826); Liebetrut, _Die Ehe nach ihrer Idee
und nach ihrer geschichtlichen Entwicklung_ (Berlin, 1834);
Marr, _Der Mensch und die Ehe_ (Leipzig, 1848); Hoffmann,
_Die christliche Ehe_ (Berlin, 1860); Glock, _Die christliche
Ehe und ihre modernen Gegner_ (Karlsruhe and Leipzig, 1881).
Socialistic writers on the subject are Robert Owen, _Marriages
of the Priesthood of the Old Immoral World_ (4th ed., Leeds,
1840); Robert Dale Owen, "Marriage and Placement," in _Free
Inquirer_, May 28 (New York, 1831); Pearson, _Ethic of Free
Thought_ (London, 1888); Besant, _Marriage; As It Was, As It Is,
and As It Should Be_; Gronlund, _The Co-operative Commonwealth_
(3d ed., London, 1891); Morris and Bax, _Socialism_ (London and
New York, 1893); Carpenter, _Love's Coming of Age_; Stürmer,
_Moderner Eheschacher_ (Leipzig, 1894); Proudhon, _Amour et
mariage_ (Brussels and Leipzig, n. d.); and Bebel, _Die Frau
und der Sozialismus_ (31st ed., Stuttgart, 1900), whose book is
discussed by Oettingen, _Zur Theorie und Praxis des Heiratens_
(Leipzig, n. d.). See also Oettingen's _Obligatorische und
fakultative Civilehe nach den Ergebnissen der Moralstatistik_
(Leipzig, 1881); Coulon, _De la réforme du mariage_ (Paris,
1900); Kuhlenbeck, _Reform der Ehe_ (Leipzig, 1891); Ewart,
_Die Emancipation in der Ehe_ (Hamburg and Leipzig, 1895);
Vortmann, _Die Reform der Ehe_ (Zürich, 1894); Lacombe, _Le
mariage libre_ (Paris, 1867); Löwenherz, _Prostitution oder
Production, Eigentum oder Ehe_ (Neuwied, n. d.); especially the
able and radical works of Caird, _The Morality of Marriage_
(London, 1897); Stetson, _Women and Economics_ (Boston, 1900);
and Schreiner, "The Woman Question," in _Cosmopolitan_, XXVIII
(Irvington, 1899); _idem_, "The Woman's Movement of Our Day," in
_Harper's Bazar_, XXXVI (New York, 1902). Swedenborg's system is
set forth in his _Conjugal Love and its Chaste Delights_ (new
ed., London, 1862); it is summarized by Hayden, _Ten Chapters on
Marriage_ (2d ed., Boston, 1863); and expounded by Mann, _Five
Sermons on Marriage_ (New York, 1882).

On questions of heredity and selection consult Nisbet, _Marriage
and Heredity_ (London, 1890); Laurent, _Mariages consanguins
et dégénérescences_ (Paris, 1895); Féré, _La famille
névropathique_ (Paris, 1894); Strahan, _Marriage and Disease_
(London, 1892); Reibmayr, _Die Ehe Tuberculoser_ (Leipzig and
Vienna, 1894); Fournier, _Syphilis und Ehe_ (Berlin, 1881);
Stanley, "Artificial Selection and the Marriage Problem," in
_Monist_, II (Chicago, 1891); _idem_, "Our Civilization and the
Marriage Problem," in _Arena_, II (Boston, 1890); criticised
by Wallace, "Human Selection," in _Fortnightly Review_, XLVIII
(London, 1890); Wertheimer, "Homiculture," in _Nineteenth
Century_, XXIV (London, 1898); and especially Wood, _Some
Controlling Ideals of the Family Life of the Future_ (New York,
1902).

Sex problems are treated by Clarke, _Sex in Education_ (Boston,
1873), who is criticised in the works of Brackett, Howe,
and Greene; Geddes, _Evolution of Sex and Sex in Education_
(1899-1900); Maudsley, _Sex in Mind and Education_ (New York,
1884); Ames, _Sex in Industry_ (Boston, 1875); Lyttelton,
_Training of the Young in the Laws of Sex_ (London and New
York, 1900); Blackwell, _The Human Element in Sex_ (new ed.,
London, 1894); Brown, _Gunethics_ (New York and London, 1887);
Trall, _Sexual Physiology and Hygiene_ (Glasgow and London,
1897); Gardner, _The Conjugal Relations_ (Glasgow and London,
1898); Walker, _Intermarriage_ (Birmingham, 1897); Heinzen,
_The Rights of Women and the Sexual Relations_ (Chicago, 1898);
Tait, _Magdalenism_ (2d ed., Edinburgh, 1842); Lecour, _La
prostitution à Paris et à Londres, 1789-1877_ (Paris, 1882);
Guyot, _La prostitution_ (Paris, 1882); Parents-Duchatelet, _De
la prostitution dans la ville de Paris_ (Paris, 1837); Dühren,
_Das Geschlechtsleben in England_ (Charlottenburg and Berlin,
1901-3); Klebs, _Verhältniss des männ. und weib. Geschlechts in
der Natur_ (Jena, 1894); Herman, _Sexualismus und Aetiologie_
(Leipzig, 1899); Lindwurm, _Geschlechtsliebe_ (Leipzig, 1879);
Debay, _Philosophie des Ehelebens_ (Berlin, 1895); Mantegazza,
_Hygiene der Liebe_ (3d ed., n. p., n. d.); Nemmersdorf, _Der
Kampf der Geschlechter_ (Leipzig, 1891); Daalen, _Die Ehe und
die geschlecht. Stellung der Frau_ (Berlin, 1896); Gardener, "A
Battle for Sound Morality, or the Hist. of Recent Age-of-Consent
Legislation in the U. S.," in _Arena_, XIII, XIV (Boston,
1895); Flower, "Wellsprings of Immorality," _ibid._, XI, XII
(Boston, 1894-95); _idem_, "Social Conditions as Feeders of
Immorality," _ibid._, XII (Boston, 1895); _idem_, "Prostitution
within the Marriage Bond," _ibid._, XIII (Boston, 1895);
Pearson, "Socialism and Sex," in his _Ethic of Free Thought_
(London, 1888). Early German works of interest are _Der rechte
Gebrauch und Missbrauch des Ehe-Bettes_ (Leipzig, 1734); being
a translation of Defoe's _Use and Abuse of the Marriage Bed_
(London, 1727); Hencke, _Volles entdecktes Geheimniss der Natur_
(Braunschweig, 1786); Josephi, _Ueber die Ehe und physische
Erziehung_ (Göttingen, 1788); Heydenreich, _Mann und Weib: ein
Beytrag zur Philosophie über die Geschlechter_ (Leipzig, 1798);
Butte, _Die Biotomie des Menschen_ (Bonn, 1829). See also the
works of Stetson, Caird, Bebel, and Schreiner above mentioned.

In the text an account is given of the early literature of the
movement for woman's emancipation in its relation to marriage.
For further study may be consulted Stanton, Anthony, and Gage,
_History of Woman Suffrage_ (New York and Rochester, 1881-87);
Fawcett, Hirsch, _et al._, in Theodore Stanton's _Woman Question
in Europe_ (New York, London, and Paris, 1884); Ostrogorski,
_Rights of Women_ (London, 1893); Johnson, _Woman and the
Republic_ (New York, 1897), strongly anti-suffrage; Legouvé,
_Hist. morale des femmes_ (8th ed., Paris, n. d.); Cohn, _Die
deutsche Frauenbewegung_ (Berlin, 1896), containing a select
bibliography; Duboc, _Fünfzig Jahre Frauenfrage in Deutschland_;
Sybel, _Ueber die Emancipation der Frauen_ (Bonn, 1870);
Richter, _Das Recht der Frauen auf Arbeit_ (2d ed., Vienna,
1869); Büchner, _Ueber weibliche Berufsarten_ (Darmstadt, 1872);
Morgenstern, _Frauenarbeit in Deutschland_ (Berlin, 1893);
Hertzberg, _Der Beruf der Frau_ (Leipzig, 1892); Jastrow, _Das
Recht der Frau_ (Berlin, 1897); Bridel, _Le droit des femmes_
(Paris, 1893); Günther (R.), _Weib und Sittlichkeit_ (Berlin,
1898); Günther (C.), _Das Recht der Frau auf Arbeit_ (Berlin,
1899); Mont, _Das Weib_ (2d ed., Leipzig, 1880); Gamble,
_Evolution of Woman_ (New York, 1894); Bücher, _Die Frauenfrage
in dem Mittelalter_ (Tübingen, 1882); and Mary Roberts Smith's
able study of the "Statistics of College and Non-College Women,"
in _Pubs. of Am. Stat. Assoc._, VII (Boston, 1901). For further
material see Bibliographical Notes IX, X, XI.]

I. THE FUNCTION OF LEGISLATION

In the United States, not less clearly than elsewhere in countries of western civilization, marriage and the family are emerging as purely social institutions. Liberated in large measure from the cloud of mediæval tradition, their problems are seen to be identical in kind with those which have everywhere concerned men and women from the infancy of the human race. Accordingly, the extension of the sphere of secular legislation practically to the entire province of these institutions is a phenomenon of surpassing interest. Consciously or unconsciously, it is a recognition of the fact that matrimonial forms and family types are the products of human experience, of human habits, and are therefore to be dealt with by society according to human needs. In this regard the Reformation marks the beginning of a social revolution. From the days of Luther, however concealed in theological garb or forced under theological sanctions, however opposed by reactionary dogma, public opinion has more and more decidedly recognized the right of the temporal lawmaker in this field. In the seventeenth century the New England Puritan gave the state, in its assemblies and in its courts, complete jurisdiction in questions of marriage and divorce, to the entire exclusion of the ecclesiastical authority. Even the Council of Trent, by adjusting the dogma regarding the minister of the sacrament, had already left to Catholic states the way open for the civil regulation of matrimony--a way, as already seen, on which France did not hesitate to enter.[591] Later the French Revolution wrested from the church judicial and legislative authority in matrimonial law and administration, and placed it in the hands of the state. In 1792, by a wise and tolerant enactment, civil marriage and civil registration were established; but at the same time the revolt against the old ecclesiastical régime led to the sanction of free divorce. Absolute dissolution of wedlock was then authorized at the mutual desire of both husband and wife, for incompatibility of temper on the petition of either spouse, and for seven other specified causes.[592] The natural result was a vast number of decrees.[593] Accordingly, in 1803 the Code Napoléon, while retaining civil marriage, adopted a more conservative policy regarding divorce. Incompatibility was no longer recognized; mutual consent was admitted under limitations; and the whole number of specified causes was reduced to five. The divorce law of 1803 was abrogated in 1816, and only restored in its essential features in 1884; but the liberal policy of France, as expressed in the Code Napoléon, has undoubtedly had a powerful influence in the extension of civil marriage and divorce throughout Europe, where, as in America, the modern statute-maker has recovered and passed beyond the point gained by the Roman imperial constitutions between Augustus and Justinian.

[591] See chap, viii, sec. i; and consult GLASSON, _Le mar. civil
et le divorce_, 210 ff., 232-51.

[592] On the revolutionary legislation regarding marriage and
divorce (1792-1816) see NAQUET, _Le divorce_ (Paris, 1877),
37-56, 153-353, containing extracts from the debates, text of the
laws, reports, and other documents; _Archives parlementaires_,
XXVI, 166-86, giving the report on the proposed civil marriage
law; WRIGHT, _Report_, 1004-6, presenting summaries of the laws;
CHAMPION, "La revolution et la réforme de l'état civil," _La
révolution française_, June 14, 1887; COLFAVRU, "La question
du divorce devant les législateurs de la révolution," _ibid._,
March 14, 1884; KOENIGSWARTER, _Histoire de l'organisation de
la famille en France_, 268 ff.; GLASSON, _Le mar. civil et le
divorce_, 252-75; LEGRAND, _Le mariage et les mœurs en France_,
196-99; DURRIEUX, _Du divorce_, 99 ff.; FÉVAL, _Pas de divorce_,
74 ff.; FIAUX, _La femme, le mariage, et le divorce_, 25 ff.;
VRAYE AND GODE, _Le divorce et la séparation du corps_, I,
7-26; BERTILLON, _Étude démographique du divorce_, 89 ff.;
and in general LASAULX, _Uebereinstimmung der französischen
Ehetrennungsgesetze mit Gotteswort_ (Koblenz and Hadamar, 1816).

A powerful influence on revolutionary opinion must have been
exerted by the remarkable _Contrat conjugal_, published in
1781, again in 1783, and in German translation in 1784, which
advocated civil marriage and free divorce, while attacking
the ecclesiastical system of impediments and dispensations.
The revolutionary ideas regarding divorce are also vigorously
presented by HENNET, _Du divorce_ (3d ed., Paris, 1792); and by
BOUCHOTTE, _Observations sur le divorce_ (Paris, 1790). On the
other hand, the divorce law of 1792 is criticised and divorce
opposed by MADAME NECKER, _Réflexions sur le divorce_ (Paris,
1792; Lausanne, 1794); as in _Du divorce_ (Paris, 1801), 1 ff.,
by BONALD, who opposed the law of 1803 and secured its repeal in
1816. See PÈRE DANIEL'S _Le mariage chrétien et le Code Napoléon_
(Paris, 1870); and for an examination of the literature of the
period, TISSOT, _Le mariage, la séparation, et le divorce_, 174
ff., 180 ff., 196 ff., 211 ff., 222 ff.

[593] In Paris alone during the first twenty-seven months after
the passage of the act 5,994 divorces were granted; while in
1797 the divorce decrees in that city actually outnumbered
the marriages: GLASSON, _Le mar. civil et le divorce_, 261,
262. Accordingly, in 1798, the law was amended so as to make
divorce for "incompatibility allowable only six months after
final failure of attempts at reconciliation;" and this law also
required all municipal authorities to proceed, and all teachers
of public and private schools to take their pupils, "to the usual
meeting places of the community every ten years in person and in
state, there to make stern proclamation of the parties divorced
during the previous decade, with the view of thus checking
divorces."--WRIGHT, _Report_, 1005; NAQUET, _Le divorce_,
212-37, giving documents; BRUN, "Divorce Made Easy," _North Am.
Rev._, CLVII (July, 1893), 12, 13; citing DUVAL, _Souvenirs
thermidoriens_, I, 60, 61. See also the _Rapport_ (27 thermidor,
an. V) of Portalis, who was the chief advocate of the amendment.
In 1800, it is alleged, there were about 4,000 marriages and 700
divorces in Paris. To what extent the relative decrease was due
to the change in the law can only be conjectured.

The right of society to deal freely with the whole province of marriage, divorce, and the family may be conceded. To determine the proper character and sphere of legislation is a very different matter. What is the quality of the existing laws under the interpretation given to them by the courts? Are they adequate to secure proper social control? What is the legitimate aim, and what are the needful limits of future legislation? Should the laws be uniform for the fifty-three states and territories; and, if so, how is uniformity to be attained? These are practical questions with whose solution it is high time that society should more earnestly concern itself.

_a_) _The statutes and the common-law marriage._--The defects in the matrimonial laws of the United States are many and grave; but perhaps the chief obstacle in the way of securing a proper social control is the general recognition of the validity of the so-called "common-law marriage." Almost everywhere the public celebration of wedlock is intended by the statute; and in nearly all the states a license or certificate is required before the solemnization may take place. Yet, according to the prevailing doctrine, as expressed in judicial decisions or in the statutes themselves, these provisions are interpreted as merely "directory," not "mandatory;" and marriage contracts made in total disregard of them, by words of mutual present consent, are sustained as valid, although the prescribed penalties may be enforced for violation of the written law. In short, the vicious mediæval distinction between validity and legality is retained as an element of common matrimonial law in the United States.[594]

[594] On this doctrine, with the leading cases, see KENT,
_Commentaries_ (14th ed., Boston, 1896), II, secs. 87 ff.,
pp. 119 ff.; REEVE, _The Law of Husband and Wife_ ("Domestic
Relations"), 250-58; GREENLEAF, _Law of Evidence_ (16th ed.,
Boston, 1899), II, secs. 460-64, pp. 441-47; and especially
BISHOP, _Mar., Div., and Sep._, I, secs. 409 ff., pp. 176 ff.

The doctrine that an informal marriage _per verba de praesenti_ is valid unless expressly declared void by "words of nullity" in the statute is not an invention of the American courts. It is the doctrine maintained by the English judges previous to the decision in the case of the Queen _v._ Millis in 1844; and from the evidence already presented[595] it seems almost certain, if indeed it be not demonstrated, that it was the accepted doctrine in the English colonies. According to an able writer, the colonial statutory "system" entirely superseded the common law; and this system has been "destroyed" by a revolution, effected through the decisions of the American courts, "which has introduced into our law much of the insecurity, the irreverence, the license, of the Middle Ages," our common law today being "the canon law that existed prior to the Council of Trent."[596] No doubt our common-law marriage is thoroughly bad, involving social evils of the most dangerous character; and no doubt the colonial legislative system was a remarkable advance upon anything which had elsewhere appeared. But the common-law marriage was not introduced by the American judges; nor is it historically correct to say that in the English colonies it had been entirely supplanted by legislation, however admirable in its intent and quality that legislation may have been. For the colonial period, as elsewhere shown, the relation of the statutes governing marriage to the common law can only partially be determined from the court records. In the southern colonies the judicial history of the subject is almost a complete blank.[597] Other evidence, however, is available. Only during the thirty-five years between 1661 and 1696 does any statute of Virginia expressly declare a marriage void if not contracted according to its provisions. The new law of 1696, enacted in place of the statute of 1661/2, which was then repealed, declares that "many great and grievous mischeifes ... dayly doe arise by clandestine and secret marriages to the utter ruin of many heirs and heiresses;" and yet it is significant that the words of nullity contained in the earlier act are omitted. Indeed, by the terms of this law the validity of an irregular marriage thereafter contracted by a female between the ages of twelve and sixteen is clearly implied, although she is to be severely punished.[598] Dissenters had refused to marry according to the statute which they regarded as oppressive; and their resistance, perhaps with a feeling that the act of 1661/2 was itself invalid as being in conflict with the English common law, may have led to the omission of the words of nullity in all subsequent statutes of Virginia. After 1696 irregular marriages were probably regarded as valid, as they certainly were previous to 1661/2; for an act of 1642/3, while prescribing severe penalties for the secret marriage of indented servants, shows beyond question that such a contract, or one between a freeman and an indented maid servant, is looked upon as binding.[599] The facts are much the same for the other southern colonies. After 1692 the invalidating clause disappears from the statutes of Maryland. Only between 1766 and 1778, in North Carolina, is a marriage contracted without previous license expressly declared to be null and void; and it is enlightening that even during this short period of twelve years the penalty of invalidity is not extended to illegal celebration. It was mainly a device of the lawmaker to secure the governor in his revenue from the license fees. The South Carolina act of 1706 merely prescribes penalties for its violation; and, besides, its provisions relating to the celebration were entirely disregarded in the western country, where the various religious sects made use of civil forms or practiced their own peculiar rites. In both the Carolinas as well as in Georgia, since marriages illegally celebrated before unauthorized laymen or ministers seem to have been valid, there is little reason to doubt that clandestine and other informal contracts by present consent of the parties were likewise good; but regarding this point we have no positive information.[600]

[595] See chaps. xii-xv, inclusive.

[596] COOK, "The Marriage Celebration in the United States,"
_Atlantic_, LXI, 521. "But in the early part of this century
there arose in the courts a discussion regarding the nature of
our common law, and the relation of that law to our statute
law in governing the celebration of marriage--a discussion
which since then has constantly increased, and has gradually
brought about a revolution unparalleled in the history of our
subject."--_Ibid._

[597] Chap. xv, sec. ii; chap. xiii, sec. iv.

[598] Chap. xiii, sec. i.

[599] HENING, _Statutes_, I, 252, 253. See chap. xiii, sec. i.

[600] For these colonies see chap. xiii, secs, iii, iv.

The history of marriage in the middle and the New England colonies leads us to a similar result. From the facts brought to light in the Lauderdale Peerage case, backed by the testimony of Rev. John Rodgers in 1773, it is almost certainly established that the common-law marriage was valid in New York province, and that for eighty-four years preceding the Revolution no other law relating to the subject was in force.[601] In New England the formalities prescribed by the statutes were doubtless usually observed. Yet there were many clandestine and other irregular marriages, and in some instances we know that these were treated as valid.[602] Such was the case in the Plymouth jurisdiction, where "self-marriage" was punished only by a fine. In Massachusetts similar cases of "hand-fasting" and "self-gifta" appear. In one case, that of Governor Bellingham in 1641, the contract was not declared void by the court, although the grand jury had presented his excellency for his offense. Fifteen years later Joseph Hills, "being presented by the grand jury for marrying of himself contrary to the law of the colony," confessed his fault and was merely "admonished by the court."[603] Moreover, at no time during the colonial and provincial periods did the statutes of Massachusetts expressly declare marriages void for disregard of the celebration or other formalities prescribed;[604] and the same is true of the daughter-colony of Connecticut. By the Rhode Island acts of 1647 and 1665 the issue of a union not formed by the "due and orderly course of law" is pronounced illegitimate; but it is very suggestive that the words of nullity do not appear in any of the later statutes of that province. Occasionally in the colonies statutes were enacted to validate irregular marriages previously contracted. Such were the acts of Rhode Island, 1698; of North Carolina, 1766; and of Virginia, 1780. But it would clearly be rash to infer that the marriages concerned were in fact void without such special intervention. Notoriously this is but a speedy and simple way of quieting doubt as to the status of the children or their rights of property and inheritance. Whether a court would nullify the contracts in question is a different matter. On the whole, the evidence seems clearly to show that the colonial statutes sustained the same relation to the English common law as did the constitutions of the English church requiring the solemnization of wedlock before a clergyman. The colonial statute, like the ecclesiastical constitution, might determine the legal forms which must be observed to escape a penalty; but the common-law marriage was nevertheless valid unless expressly declared null and void in the act itself. Furthermore, it is by no means certain that the colonial assemblies were generally competent, even in this way, to set aside the common law.

[601] Chap. xiv, sec. i, _c_).

[602] Chap. xii, sec. vi.

[603] _MSS. Records of the County Court of Middlesex_ (Apr. 1,
1656), I, 80.

[604] See the case of Usher _v._ Troop (Throop), 1724-29, in
which is raised the question as to whether the "constitutions
and canons ecclesiastical of the Church of England" are binding
in Massachusetts: _MSS. Records of the Superior Court of
Judicature_, 1725-30, fol. 236. _Cf._ chap. xii, secs, i, ii.

After the beginning of independent national life the English common law as a whole in its various branches was retained as a part of the law of the land, unless superseded by constitutional or statutory legislation. It was therefore inevitable that the state and federal courts, as cases arose, should declare whether it had been so superseded. There could no longer be any question, as in the colonial period, regarding the competency of the legislator to define the conditions of a valid matrimonial contract. A brief history of the acceptance or rejection of the common-law marriage in the United States, whether by statute or by judicial decree, may now be presented.[605]

[605] COOK, "The Mar. Cel. in the U.S.," _Atlantic_, LXI, 520-32,
has given a systematic account of the subject to the year 1888.
To this article, and to his "Reform in the Celebration of
Marriage," _ibid._, 680-90, I am indebted; as also to BENNETT,
"Uniformity in Marriage and Divorce Laws," _Am. Law Register_,
N. S., XXXV, 221-31. _Cf._ CONVERS, _Mar. and Divorce_, 15-119;
STEWART, _Mar. and Divorce_, 78 ff.

The leading case came before the supreme court of New York in 1809, when Chief Justice Kent accepted as binding a common-law marriage, declaring that no solemnization was requisite; that "a contract of marriage made _per verba de praesenti_ amounts to an actual marriage, and is as valid as if made in _facie ecclesiae_;" and that the existence of such a contract may be proved "from cohabitation, reputation, acknowledgment of the parties, acceptance in the family, and other circumstances from which a marriage may be inferred."[606] This decision determined the policy of New York for nearly a century, until the common-law marriage was at last superseded by the statute of 1901; and its influence upon the tribunals of other states has been increased through the sanction of its doctrine by the leading authorities upon matrimonial law.[607] The contract by mere present consent of the parties, regardless of the statutory requirements, has been widely accepted as valid in the group of southern and southwestern states and territories. It was so judicially accepted in South Carolina[608] at least as early as 1832; in Louisiana[609] in 1833; Georgia[610] in 1860; District of Columbia[611] in 1865; Alabama[612] in 1869; Arkansas[613] in 1872; Missouri[614] in 1877; and Florida[615] in 1880. By the earlier decisions of Tennessee a strict compliance with the statute was required, the court even declaring in 1829[616] that a marriage solemnized before a justice of the peace out of his own county was "absolutely null and void." This opinion was sustained by a decree of 1831; but later judgments favor the common-law agreement. Texas has had a similar experience. In 1883 and again in 1894 the common-law contract was repudiated, the court deciding that license and parental consent according to the statute were essential;[617] but more recently the highest tribunal has held the opposite view.[618] Among the states of the middle and western group Pennsylvania in 1814 was first to follow the New York precedent.[619] Ohio[620] came next in 1861; and Illinois[621] in 1873. By the law of Michigan, declares Judge Cooley decisively in 1875--in an opinion accepted as authority by the federal courts--a marriage may be good, although the statutory regulations have not been complied with. "Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof" of a binding marriage; and "this," he adds, "has become the settled doctrine of the American courts."[622] This view has been accepted in Iowa[623] in 1876; Minnesota[624] in 1877; Wisconsin[625] in 1879; Indiana[626] in 1884; Kansas[627] in 1887; Nebraska[628] and Colorado[629] in 1893; Nevada[630] in 1896; and favored by the decisions of New Jersey[631] since 1824. Moreover, the Supreme Court of the United States has sanctioned the same doctrine. In Jewell _v._ Jewell,[632] considered in 1843, opinions on the question were evenly balanced, just as they were in the Queen _v._ Millis which came before the Lords during the next year; but in 1877, in the case of Meister _v._ Moore,[633] involving a marriage contracted under the law of Michigan, Justice Strong adopted "as authoritative" Judge Cooley's interpretation rendered two years before.

[606] In the case of Fenton _v._ Reed (1809), 4 JOHNS., 52; 4
_Am. D._, 244; EWELL, _Cases on Domestic Relations_, 397-99.
Following are the essential facts in this celebrated case. In
1785 John Guest "left the state for foreign parts." During his
absence, in 1792, his wife Elizabeth married Reed. Subsequently
in the same year her first husband, Guest, returned to the state
and there resided until his death in June, 1800. He professed to
have no marital claim upon Elizabeth; so she lived with Reed as
a wife continuously from 1792 until the latter's death in 1806.
Was she the lawful wife of Reed from 1792 to 1800 during the
lifetime of Guest? If not, was she, without the observance of
any formalities, his lawful wife from 1800 to 1806 after Guest's
demise? To the first question the court answered "no," holding
that "the statute concerning bigamy does not render the second
marriage legal, notwithstanding the former husband or wife may
have been absent above five years, and not heard of. It only
declares that the party who marries again in consequence of such
absence ... , shall be exempted from the operation of the statute,
and leaves the question of the validity of the second marriage
just where it found it." To the second question the court
answered "yes," as explained in the text. _Cf._ Starr _v._ Peck,
1 HILL, _N. Y._, 270.

[607] The doctrine of his own decision was formulated in 1826
by KENT in the first edition of his _Commentaries_. Ten years
earlier, in 1816, it had been accepted by REEVE, former chief
justice of Connecticut, in his treatise on the _Law of Husband
and Wife_. It was followed in 1842 by GREENLEAF in his work
on _Evidence_; and later by BISHOP in his well-known book on
_Marriage and Divorce_. On the other hand, the younger PARSONS,
the first edition of whose _Contracts_ appeared in 1853, is
inclined to reject the Kent doctrine: see the 8th ed., II, 78
ff.; and compare COOK, "The Mar. Cel. in the U. S.," _Atlantic_,
XLI, 521, 522.

[608] See Fryer _v._ Fryer (1832), RICHARDSON'S _Equity Cases_,
92 ff. _Cf._ the case of Vaigneur _v._ Kirk (1808), 2 _S. C.
Equity Reports_, 640-46; and 10 MCCORD'S _Statutes_, 357, ed.
note; _ibid._, II, 733, ed. note.

[609] Holmes _v._ Holmes (1833), 6 _La._, 463. In this state,
under influence of French and Spanish law, the common-law
contract appears always to have been regarded as valid.

[610] Askew _v._ Dupree (1860), 30 _Ga._, 173; _cf._ Clark _v._
Cassidy, 64 _Ga._, 662.

[611] Blackburn _v._ Crawfords (1865), 3 WALL., 175; Diggs _v._
Wormley (1893), 21 _D. C._, 477, 485; Jennings _v._ Webb (1896),
8 _App. D. C._, 43, 56. _Cf._ Green _v._ Norment (1886), 5
MACKEY, 80-92.

[612] In Campbell _v._ Gullatt (1869), 43 _Ala._, 57. But see the
earlier decisions in S. _v._ Murphy (1844), 6 _Ala._, 765-72; 41
_Am. D._, 79; and Robertson _v._ S. (1868), 42 _Ala._, 509; being
conflicting and indecisive as to whether the statute is merely
"directory."

[613] Jones _v._ Jones (1872), 28 _Ark._, 19-26. According to S.
_v._ Willis (1848), 9 _Ark._, 196-98, consent of the parent is
not essential.

[614] Dyer _v._ Brannock (1877), 66 _Mo._, 391; 27 _Am. R._,
359. The license required by statute is not essential to a valid
marriage: S. _v._ Bittick (1890), 103 _Mo._, 183.

[615] Daniel _v._ Sams (1880), 17 _Fla._, 487-97.

[616] In Bashaw _v._ S. (1829), 1 YERG., 177; affirmed in Grisham
_v._ S. (1831), 2 YERG., 589; opposed in Andrews _v._ Page
(1871), 3 HEISK., 653-71; and apparently questioned in Johnson
_v._ Johnson (1860), 1 COLDW., 626.

[617] Dumas _v._ S. (1883), 14 _Tex. Cr. App._, 464-74; Tel. Co.
_v._ Procter (1894), 6 _T. C. A._, 300, 303.

[618] Cumby _v._ Henderson (1894), 6 _T. C. A._, 519-23; 25 _S.
W._, 673; Ingersol _v._ McWillie (1895), 9 _T. C. A._, 543, 553;
30 _S. W._, 56; Chapman _v._ Chapman (1897), 16 _T. C. A._, 384;
and especially Railway Co. _v._ Cody (1899), 20 _T. C. A._,
520-24.

[619] Hantz _v._ Sealey (1814), 6 BINN., 405; also Rodebaugh _v._
Sanks (1833), 2 WATTS, 9-12; and Commonwealth _v._ Stump (1866),
53 _Pa._, 132-38.

[620] Carmichael _v._ S. (1861), 12 _Ohio_, 553-61.

[621] Port _v._ Port (1873), 70 _Ill._, 484; Bowman _v._ Bowman
(1887), 24 _Ill. App._, 165-78.

[622] Hutchins _v._ Kimmel (1875), 31 _Mich._, 126-35; 18 _Am.
R._, 164-69.

[623] Blanchard _v._ Lambert (1876), 43 _Iowa_, 228-32. Since
1851 the statutes of Iowa have clearly accepted the common-law
marriage: _Code of Iowa_ (1851), secs. 1474, 1475; _ibid._
(1897), 1124.

[624] S. _v._ Worthington (1877), 23 _Minn._, 528.

[625] Williams _v._ Williams (1879), 46 _Wis._, 464-80; Spencer
_v._ Pollock (1892), 83 _Wis._, 215-22.

[626] Teter _v._ Teter (1884), 101 _Ind._, 129; 51 _Am. R._, 742.
In Roche _v._ Washington (1862), 19 _Ind._, 53, the opposite
position is taken.

[627] S. _v._ Walker (1887), 36 _Kan._, 297; 59 _Am. R._, 556.

[628] Bailey _v._ S. (1893), 36 _Neb._, 808-14.

[629] Israel _v._ Arthur (1893), 18 _Col._, 158, 164; Taylor _v._
Taylor (1897), 10 _C. A._, 303, 304.

[630] S. _v._ Zichefield (1896), 23 _Nev._, 304-18.

[631] Wyckoff _v._ Boggs (1824), 2 HALST., 138-40; and especially
Pearson _v._ Howey (1829), 6 HALST., 12, 18, 20.

[632] Jewell _v._ Jewell (1843), 1 HOWARD, 219-34.

[633] Meister _v._ Moore (1877), 96 _U. S._, 76-83.

On the other hand, in a number of states the courts have decided that the common-law marriage is entirely superseded by the statutes, even when these do not contain words of nullity, and sometimes when they are expressed in terms far less "mandatory" than in some instances where the opposite doctrine prevails.[634] In the words of a writer who believes the courts are historically and logically justified in this view, "they affirm that when from a comparative study of the whole course of legislation as well as of the terms of the various statutes, it is the plain intent to make conformity to any statutory formality indispensable to the constitution of marriage, such common law is _ipso facto_ repealed, and a marriage celebrated by mere consent, without this formality, has no validity whatever in law. One such indispensable formality, at least, they find in the intent of the statutes, namely, the presence at the celebration of an authorized third person."[635] First to take this position was Massachusetts in 1810, the year after Kent's opposite decision already cited, when Chief Justice Parsons, in an opinion which has been steadily sustained ever since, but which is not remarkable for historical knowledge, held that "when our ancestors left England, and ever since, it is well known that a lawful [valid?] marriage there must be celebrated before a clergyman in orders;" and hence in Massachusetts, although "not declared void by any statute," a "marriage merely the effect of a mutual engagement between the parties, or solemnized by any one not a justice of the peace or an ordained minister, is not a legal marriage, entitled to the incidents of a marriage duly solemnized."[636] Since 1848 the Massachusetts doctrine has been followed by Vermont.[637] In the same year it was adopted in New Hampshire;[638] but in the absence of more recent decisions the law of that state cannot be regarded as absolutely settled. It was favored in Maine[639] by a decision of 1841, although the informal contract was not then positively rejected by a direct decree. The courts of Connecticut are silent on the question; but the statute declares that all marriages "attempted to be solemnized by any other person" than those authorized by it "shall be void."[640]

[634] See BENNETT, "Uniformity in Mar. and Div. Laws," _Am.
Law Register_, N. S., XXXV, 223 ff., who points out that the
statutes of Alabama, Pennsylvania, and Missouri, where the
common-law marriage is valid, are far more prohibitory than those
of Massachusetts, Maryland, or West Virginia, where it is void.
The statute of Alabama says positively that "no marriage shall
be solemnized without a license issued by the judge of probate
of the county where the female resides;" but a marriage so
solemnized is nevertheless valid.

[635] COOK, "The Mar. Cel. in the U. S.," _Atlantic_, LXI, 523.

[636] Milford _v._ Worcester (1810), 7 _Mass._, 48-58. See also,
to the same effect, Commonwealth _v._ Munson (1879), 127 _Mass._,
459-71; 34 _Am. R._, 411. In this case it is correctly held that
Justice Bigelow's decision in Parton _v._ Hervey (1854), 1 GRAY,
119, that the statute is merely "directory," relates to banns
and parental consent, and not to solemnization; for Milford _v._
Worcester is cited as authority.

[637] See the opinion of Judge Redfield in Northfield _v._
Plymouth (1848), 20 _Vt._, 582, holding that a common-law
marriage could not be regarded as valid without "virtually
repealing our statutes," thus reversing the doctrine of Newbury
_v._ Brunswick (1829), 2 _Vt._ 151; 19 _Am. D._, 703; and consult
especially Morrill _v._ Palmer (1895), 68 _Vt._, 1-23, holding
"that what ... Kent calls the 'loose doctrine of the common law,'
in relation to marriage, was never in force in this state."

[638] See the opinion of Chief Justice Gilchrist in Dumbarton
_v._ Franklin (1848), 19 _N. H._, 257, rejecting as irrelevant
Judge Woodbury's _obiter dictum_ in Londonderry _v._ Chester
(1820), 2 _N. H._, 268-81, usually cited to sustain the
common-law marriage; but this objection to it is scarcely valid.

[639] S. _v._ Hodskins (1841), 19 _Me._, 155-60; 36 _Am. D._,
743. _Cf._ Ligonia _v._ Buxton, 2 _Me._, 95. According to Hiram
_v._ Pierce, 45 _Me._, 367, the statute of Maine, like that of
Massachusetts, is only directory regarding parental consent in
case of minors.

[640] _Gen. Stat. of Ct._ (1902), 1086. According to REEVE, _Law
of Husband and Wife_, 252 ff.; followed by KENT, _Commentaries_,
II, secs. 87 ff., the common-law marriage was formerly good in
Connecticut.

Several states of the South have taken a similar stand. Maryland[641] and North Carolina[642] have thus repudiated the common-law agreement, a formal celebration being made essential to a valid marriage. The supreme court of West Virginia has gone farther, holding that not only solemnization, but also license and other prescribed formalities, are requisite. "Our statute," runs a decision of 1887, "has wholly superseded the common law, and in effect, if not in express terms, renders invalid all attempted marriages contracted in this state, which have not been solemnized in compliance with its provisions.... When the terms of the statute are such that they cannot be made effective, to the extent of giving each and all of them some reasonable operation, without interpreting the statutes as mandatory, then such interpretation should be given them."[643] In 1821 the common-law contract was judicially accepted in Kentucky;[644] but by the model statute of 1852--remarkable for clearness and terseness--a "marriage is prohibited and declared void when not solemnized or contracted in the presence of an authorized person or society."[645] Likewise in Mississippi until recently the informal agreement was held sufficient to constitute the parties husband and wife;[646] but since 1892 the statute renders a marriage invalid if contracted or solemnized without a previous license.[647] Moreover, in Porto Rico, by the code of 1902, the authorization and celebration of the contract "according to the forms and solemnities prescribed by law" are requisite for a valid marriage.[648] With these six southern and the four New England commonwealths must be classed five states of the middle and western division. Two of these--Oregon[649] since 1870 and Washington[650] since 1892--have proceeded by judicial decree; and three--California[651] in 1895, Utah[652] in 1898, and New York[653] in 1901--have superseded the common-law agreement by statutes containing the nullifying clause.

[641] The common-law marriage was sustained in Cheseldine _v._
Brewer (1739), 1 HAR. AND MCH., 152; overruled and the opposite
doctrine supported in Denison _v._ Denison (1871), 35 _Md._, 361.
In Jackson _v._ Jackson (1894), 80 _Md._, 176-96, it is held that
the "fact that the marriage was performed by a clergyman may
be inferred from the evidence." _Cf._ BISHOP, _Mar., Div., and
Sep._, I, sec. 416, p. 179.

[642] S. _v._ Samuel (1836), 2 DEV. AND BAT., 177-85; followed
in S. _v._ Patterson (1842), 2 IREDELL, _N. C._, 346-60; left
undecided in S. _v._ Ta-cha-na-tah (1870), 64 _N. C._, 614.
_Cf._ S. _v._ Robbins (1845), 6 IREDELL, _N. C._, 23-27, where
apparently a celebration, but not a license, is held essential to
a valid marriage (25); and especially S. _v._ Wilson (1897), 121
_N. C._, 657, where it is declared that a marriage "pretendedly
celebrated before a person not authorized would be a nullity."

[643] Beverlin _v._ Beverlin (1887), 29 _W. Va._, 732-40.

[644] Dumaresly _v._ Fishly (1821), 3 A. K. MARSHALL, 368-77. See
also Commonwealth _v._ Jackson, 11 BUSH., _Ky._, 679.

[645] _Acts_ (1850-51), 212-16 (law in force July 1, 1852);
sustained in Estill _v._ Rogers (1866), 1 BUSH., _Ky._, 62;
Stewart _v._ Munchandler, 2 BUSH., _Ky._, 278.

[646] Hargroves _v._ Thompson (1856), 31 _Miss._, 211; Dickerson
_v._ Brown (1873), 49 _Miss._, 357; Floyd _v._ Calvert (1876), 53
_Miss._, 37; Rundle _v._ Pegram (1874), 49 _Miss._, 751.

[647] _Ann. Code of Miss._ (1892), 679.

[648] _Rev. Stat. and Codes of Porto Rico_ (1902), 805.

[649] Holmes _v._ Holmes (1870), 1 ABB., _Cir. Ct._ (U. S.), 525,
declaring the statute regarding the solemnization of marriage
mandatory.

[650] _In re_ McLaughlin's Estate (1892), 4 _Wash._, 570; 30
_Pac. R._, 651; _in re_ Wilbur's Estate (1894), 8 _Wash._, 35.

[651] It may require judicial interpretation to determine the
law of California. Sec. 55 of the _Civil Code_, since the act of
1895, does not contain the _usual_ words of nullity; but sec. 68
declares that a marriage is not invalidated by violation of the
provisions governing solemnization, license, authentication, and
record "_by other than the parties themselves_." One or two of
the superior court judges have already decided that the statutory
formalities are mandatory.

[652] The _Rev. Stat. of Utah_ (1898) rendered marriage void when
not celebrated before an authorized person. Before this date a
common-law contract was binding: U.S. _v._ Simpson, 4 _Utah_,
227; 7 _Pac._, 257.

[653] See chap. xvi, sec. iii, _a_).

All the other states and territories have enacted laws governing the celebration and other preliminaries of marriage; but whether these laws are to be regarded as mandatory or merely directory has not yet been judicially determined. The courts are thus silent in Connecticut and Rhode Island,[654] of the New England group; in Arizona, Indian Territory, New Mexico, Oklahoma, and Virginia, of the southern and southwestern group; in Alaska, Delaware, Hawaii, Idaho, Montana, North Dakota, South Dakota, and Wyoming,[655] of the middle and western division. Of these Delaware, Virginia,[656] and Connecticut would probably reject the common-law doctrine, were the question brought to a judicial test; while it would almost certainly be accepted by the courts of the other twelve states and territories, should the statutes remain as they are. Indeed, in a number of the last-named states, notably in Idaho, Montana, and South Dakota, it is virtually sanctioned by the terms of the statutes themselves.

[654] In Peck _v._ Peck (1880), 12 _R. I._, 485-89, the court
declined to decide whether a common-law contract is valid, there
being no prohibitory language in the statute. _Cf._ also S.
_v._ Boyle (1882), 13 _R. I._, 537; and Ben. Association _v._
Carpenter (1892), 17 _R. I._, 720. In Williams _v._ Herrick
(1899), 21 _R. I._, 401-3, the court appears to favor the
validity of a marriage without a formal ceremony, if begun with
"matrimonial intent."

[655] According to Connors _v._ Connors (1895), 40 _Pac._, 966, a
license is not essential in Wyoming.

[656] In Beverlin _v._ Beverlin, 29 _W. Va._, 736, the judge
says, "I have been unable to find any case in which the courts of
Virginia or this state have ever held that a common-law marriage
was held valid;" and this, he adds, is "persuasive evidence" that
it is not. In Colston _v._ Quander (1877), 1 _Va. Decisions_
(not officially reported), license is declared not essential;
but in this case there was a formal celebration. On the probable
position of the states which have not decided see COOK, _The Mar.
Cel. in the U. S._, 525, 526.