[795] Editorial note in Brevard, Alphabetical Digest of Laws of S. C., II, 41, 42, notes.
[796] With an exception relating to military power: Poore, Charters, I, 373, 374. Georgia was made a royal province in 1751; but the policy of toleration was maintained: Holmes, Annals, II, 45; Story, Commentaries, I, 102. In early days the province suffered the usual evils from scarcity of women: Coll. Georgia Hist. Soc., II, 105; III, 32, 144.
[797] Poore, Charters, I, 375.
[798] Cook, "Mar. Cel. in Col.," Atlantic, LXI, 356.
[799] Digest of the Laws of Georgia (Philadelphia, 1801), 314.
[800] Even in Virginia civil marriages were frequent before the Revolution, though liable to penalty. For Maryland the view of the text as to the common-law contract was sustained in the case of Cheseldine v. Brewer, 1 Har. and McH., 152 (1739). This decision was, however, overruled in Denison v. Denison (1871), 35 Md., 361, 379, in which Justice Alvey says: "We think we are safe in saying that there has never been a time in the history of the state, whether before its independence of Great Britain or since, when some ceremony or celebration was not deemed necessary to a valid marriage. In the early days of the province, it was not absolutely necessary that a minister of religion should officiate,—a judge or magistrate could perform the ceremony—but still, in all cases, some formal celebration was required." Of course, the opinion of a judge long after the colonial era, not professing to be based on evidence, can have little weight in settling the present historical problem. Though the laws of the Maryland assembly, like those of Connecticut and Rhode Island (Story, Commentaries, I, § 171), were not required to be submitted to the king for approval, it cannot be assumed that such laws could deprive a person of any liberty secured by the common law, but they might bestow greater privileges. Cf. Bishop, Mar., Div., and Sep., I, § 416.
A statute of North Carolina, in 1715, declared that the common law should be in force in that province (Iredell, Laws, 1715, 18, 19; Story, op. cit., I, § 142). Yet in this century it has been held that the common law of the state recognizes no marriage not according to the statutes; as to which statement, "the court observed in a subsequent case, 'we express no opinion.' But such, all agree, is not the common law of England."—Bishop, op. cit., I, § 412; citing State v. Samuel, 2 Dev. and Bat., 177; and State v. Ta-cha-na-tah, 64 N. C., 614.
Several decisions of the courts of Tennessee have regard to the colonial laws of North Carolina, the parent commonwealth, and on the whole sustain the view that informal marriages were good despite the statutes. In the case of Bashaw v. the State, 1829 (1 Yerger, 177-97), which gives a history of North Carolina matrimonial legislation for the period 1715-1829, it was held that the celebration must be according to the statutes which had superseded the common law. The same view is taken two years later in Grisham v. the State (2 Yerger, 589, 592). But in Andrews v. Page, 1868 (3 Heiskell, Tenn. Reports, 653, 667), the opposite position is taken, the court holding rightly that the acts of 1741 and 1778 do not expressly prohibit the common-law marriage.
The common-law principle of marriage by mutual consent prevailed in South Carolina (compare 10 McCord, Statutes, 357, ed. note; and the case Vaigneur v. Kirk, 2 S. C. Equity Reports, 640-46, with H. W. Desaussure's note, 646). Referring to the law of South Carolina, generally, Brevard, Alphabetical Digest, II, 41, note, says: "How far the informality of a marriage may afford ground for questioning its validity, on a trial for polygamy, may perhaps admit of some doubt." Historically, however, the doubt is exceedingly small that such an informal contract would be valid.
It is doubtful whether there were any courts in the southern colonies vested with full matrimonial jurisdiction: see Bishop, op. cit., I, §§ 115-49.