A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

Finally it may be noted, as a sign of the growing appreciation of the needs of social and statistical science, that throughout New England statutory provision has been made for state registration of marriages. The local clerks and registrars are required to make annual report of the facts collected and recorded by them to the general registrar, who is usually the secretary of the commonwealth or the secretary of the state board of health.[1219] By the Rhode Island statutes the original indorsed certificates, returned to the town clerk and by him recorded, are to be sent to the secretary of the state board of health, who is to cause abstracts of them to be made and published. Thereafter they are to be deposited in the office of the secretary of state, where they shall be properly indexed and remain subject to inspection.[1220] Connecticut is doing still better in this regard. By a series of acts, beginning in 1893, that state is making a praiseworthy effort to complete her marriage records from the date of the first incorporation of the various towns to the present time;[1221] and Maine has provided for the collection and publication of the records of births, deaths, and marriages.[1222] Vermont by an act of 1898 requires the secretary of the state board of health to prepare and furnish the town and city clerks blank forms to be used as books of records of "births, marriages, divorces, and deaths." Return is to be made by the local officers, from which every second year the secretary of the state board of health is to publish a report.[1223]

II. THE SOUTHERN AND SOUTHWESTERN STATES[1224]

Throughout this period in the South matrimonial legislation has moved more slowly than in New England and the West, but toward the same goal. Sentiment has been more conservative regarding innovation; and in general equal progress has not been made in remodeling and improving the details of administration or the safeguards of marriage law. Originally, as elsewhere shown,[1225] the English ecclesiastical forms were established in Virginia and nominally, in a varying degree, in the neighboring colonies. Dissenters were illiberally, often tyrannically, treated; and to satisfy their consciences in this regard they were compelled to take the law into their own hands. Still, at the Revolution, it was apparent that the American type of matrimonial legislation, as in its essential features already existing in New England, must eventually triumph in the South.

a) Solemnization.—Old ideas were especially tenacious in Virginia. For the first time, in 1780, as already suggested,[1226] the monopoly of the Anglican clergy was restricted through legislation. By the statute of that year, for the purpose of "encouraging marriages" and "removing doubts concerning the validity" of those heretofore celebrated by dissenting clergymen, not only are all such marriages declared "good and valid in law," but for the future ministers of "any society or congregation of Christians," as well as the Quakers and Menonists, are permitted to conduct the celebration according to their own rules and usages. License and banns are dispensed with in the case of Menonists and Quakers,[1227] but the act limits the number of dissenting ministers who may take advantage of its provisions. On recommendation of the "elders of the several religious sects," the court of each county is authorized to license not more than four ministers of each dissenting society to solemnize marriages; and the licenses are to be "signed by the judge or elder magistrate under his hand and seal."[1228] Four years later a new marriage act appears, by which the ordained ministers of all societies of Christians are placed on the same level. The provision for licensing a limited number is not retained. Any minister may celebrate marriages of "any persons" within the state, provided he first produce to the court of the county or borough in which he resides credentials of his ordination, and also of his being in regular communion with the society of which he is reputed a member, take the oath of allegiance to the commonwealth, and enter into bond, with two or more sufficient securities, in the sum of five hundred pounds current money for the true and legal performance of his trust. A "testimonial" is then issued to him by the court.[1229] "Itinerant" ministers, however, are not entitled to a testimonial. If any minister shall voluntarily decline, or be ejected from, his office, or "if any of his securities shall give him notice in writing that they desire to be released from their suretyship, in either of these cases," should he refuse or neglect "to give up his testimonials to the court from which they were obtained, any one of his securities, without instituting a suit, may proceed against him as if they were his special bail in an action of debt until he is thereunto compelled or gives them sufficient caution for their indemnification."[1230] By this act also irregular marriages already contracted are made valid. Its provisions regarding solemnization are retained in the elaborate statute of 1792.[1231]

Thus far the religious ceremony only had been acknowledged by law. A step toward civil marriage was taken in 1783. It is recited that, since "it hath been represented ... that many of the good people in the remote parts of this commonwealth are destitute of any persons, authorized by law, to solemnize marriages," therefore when it shall seem necessary, in the scarcity of clergymen, the court of any county "on the western waters" is empowered "to nominate so many sober and discreet laymen as will supply the deficiency." It is noticeable that such layman, "upon taking the oath of allegiance" to the state, is to receive a license to celebrate the rites of matrimony "according to the forms and customs of the church of which he is reputed a member." It appears from this statute that magistrates in such places had already been in the habit of celebrating marriages; and these marriages are now legalized.[1232] In consequence of the scarcity of ministers, persons desiring to be married were sometimes compelled to travel long distances across the mountains, exposed to danger from the Indians. Hence in 1794 the courts of Lee and Randolph counties were authorized to nominate two resident laymen in each to perform the ceremony within the county where they respectively resided. These commissioners[1233] were to take an oath of fidelity to the commonwealth; and each was to "enter into bond for sufficient security in the sum of fifteen hundred dollars" for the "true and faithful performance of his trust." This act differs from that of 1783 in being silent as to the use of the religious ceremony; and so marks a step in advance toward full civil marriage.[1234]

The foundation of the law of Virginia regarding the marriage celebration, both civil and religious, as it still exists, was thus laid more than a hundred years ago. A few changes, most of them of minor importance, have been made in later years. From time to time, by special law, the benefits of the act of 1794 were extended to other counties;[1235] and in 1830 this plan was adopted for the whole state. The court of every county which should suffer "inconvenience" through lack of ministers was then authorized to name one or two persons to solemnize matrimony, on condition of giving satisfactory bond, as required by earlier statutes.[1236] As the law now stands, "the court of every county which deems it expedient, may appoint one or more persons resident in such county to celebrate the rites of marriage within the same, or a particular district thereof, and upon any person so appointed giving such a bond as is required of an ordained minister, may make a like order" empowering him to act. But the court may rescind this order at pleasure.[1237] It appears, therefore, contrary to the usual custom, that in Virginia the justice of the peace as such has no authority to perform the marriage ceremony. Regarding the religious celebration, the law remains very nearly as it was in 1784, except in one or two important provisions. At least since 1819 Jews have enjoyed the right of using their own marriage rites;[1238] while already in 1812 ordained ministers in regular standing with any society of Christians, residing in any adjacent state, were authorized to solemnize wedlock in Virginia on filing credentials and giving bond in the court of the county where the marriage takes place, the oath of allegiance not being required.[1239] The law was further liberalized in 1831. Any ordained minister in regular communion, as before, "who by the government and discipline of the church of which he is a member, has been assigned to a circuit, station, or district for the period of one year at the least," is allowed, on the same conditions as other ministers, to obtain a "testimonial" from any county or corporation court within such area authorizing him to perform the marriage rites.[1240] With these changes the law of Virginia is complete, except that it is couched in more general phrase. "When a minister of any religious denomination shall, before the court of any county or corporation in this state, produce proof of his ordination, and of his being in regular communion with the religious society of which he is reputed a member, and give bond in the penalty of five hundred dollars, such court may make an order authorizing him to celebrate the rites of marriage." No ceremony is prescribed; but each religious body, though having no minister, may use its own forms.[1241]

West Virginia, made a separate state in 1863 by dismemberment of the Old Dominion, has taken a much more conservative course. In 1868 "any minister of the gospel," on presenting the credentials of his ordination and of being in regular communion, according to the plan of the mother-commonwealth, is authorized to "celebrate the rites of marriage in all the counties of the state;" and no person other than a minister who has thus "complied" with the law shall hereafter be permitted to perform the ceremony.[1242] No provision whatever is made for the lay celebration. This reactionary policy was, however, temporarily abandoned in 1873. By a statute of that year the minister, otherwise to be qualified as under the act of 1868, is required in addition to give bond in the sum of fifteen hundred dollars; and each county court, as in Virginia, is authorized to appoint one or more laymen with power to solemnize wedlock.[1243] For four years the lawmaker staid his hand; but in 1877 the illiberal principle of the act of 1868 was again enforced.[1244] So to the present hour only the religious celebration, either by a clergyman or by the usages of a society having no officiating minister, is legal in West Virginia. The lay ceremony is not recognized there by statute.[1245]

It is less surprising that Kentucky, whose territory until the admission of the state to the Union in 1792 was embraced in the jurisdiction of Virginia, should have retained the matrimonial law of the parent commonwealth. As regards solemnization, the act of 1798 in its substance is almost identical with the statutes of Virginia before that of 1794 appeared. It contains like provisions with respect to bond, credentials, testimonial, and oath of allegiance on the part of the minister; and Quakers, Menonists, and all societies of Christians are allowed to use their own rites.[1246] In the next year the county courts of the state are authorized each to license one or more of their own magistrates to solemnize marriages, "where there shall not be a sufficient number of ministers of the gospel" for the purpose.[1247] By the present law, which in all essential respects is identical with the act of 1851, marriages may be celebrated either by ministers of the gospel or priests of any denomination, in regular communion with a religious society; by judges of the county courts, and such justices of the peace as the county courts may authorize; or according to the usage of any religious society to which either person may belong.[1248]

In Maryland no progress has been made regarding the marriage celebration since the Revolution. Ministers and priests still have a monopoly of the matrimonial business, as under the illiberal act of 1777, whose provisions have already been summarized.[1249] Quakers are still allowed their own rites; but, as in West Virginia, the lay celebration is not authorized by the statute.[1250] Until 1896, with slight modification, the marriage law of Maryland was in force in the District of Columbia. By a statute of that year the ceremony may be performed in the District by any justice of the peace; any judge of a court of record; or by any ordained or appointed minister residing anywhere in the United States, if authorized by a justice of the Supreme Court.[1251]