A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

Elsewhere the history of the matrimonial legislation of North Carolina has been traced to the act of 1766, the last statute adopted before the Revolution. The Quakers had practiced their own rites throughout the colonial era. By the act just mentioned the Presbyterians had been granted the same privilege, but on humiliating terms. With these exceptions, the clergy of the English church enjoyed a monopoly of the marriage celebration; for no other dissenting body save the Presbyterians was recognized by the law. All this was changed in 1778, after the establishment had been swept away. The "regular ministers of every denomination, having the cure of souls," and all justices of the peace in the state, are authorized to solemnize marriages; while the Quakers are to enjoy their ancient privileges.[1252] So the law remains at the present time.[1253]

Throughout the century the statutes of Tennessee governing the celebration of wedlock have been practically the same as those of North Carolina, the parent commonwealth, to whose jurisdiction the territory belonged until 1796.[1254] At present "all regular ministers of the gospel of every denomination, and Jewish rabbis, having the cure of souls, and all justices of the peace, judges, and chancellors in the state," as well as the governor and the speakers of the senate and house, are authorized to celebrate marriages.[1255] No special ceremony is prescribed.

During the period under review South Carolina, like Pennsylvania, has made no legislative provision for the marriage celebration. The same usage prevails since the Revolution as before, except that in the colonial period usage prevailed in spite of the statutes. What Brevard said in 1814 is still true. "It is customary in this state," he declares, "to celebrate or publish the matrimonial contract, by or before a minister of the gospel—of any sect, and without regard to any particular form or ceremony—or by or before a justice of the peace, or other lawful civil magistrate."[1256]

The optional civil or religious celebration before a minister or justice, existing by custom in Georgia from the foundation of the colony, was recognized by the act of 1785—the first legislation on the subject of matrimony after the organization of the state.[1257] A few changes in details have brought the law into harmony with the prevailing practice of the country.[1258] At present marriages may be solemnized by any judge, justice of the peace, minister of the gospel, Jewish minister, "or other person of any religious society or sect" authorized by its rules to perform the ceremony.[1259] By a unique provision "colored ministers of the gospel, or ministers of the gospel of African descent," are allowed to celebrate marriages "between freedmen and freedwomen, or persons of African descent, only."[1260]

In all the other states and territories of the South and Southwest the optional religious or civil celebration before a minister or judicial officer has been sanctioned by statute from the beginning. Such is the case in Florida, Arkansas, Indian Territory, Arizona, New Mexico, and Oklahoma; as also in Alabama, Mississippi,[1261] and Missouri, where in each case the typical optional plan was adopted under the territorial legislation of 1805.[1262]

The laws of Louisiana have always shown ample evidence of their Latin origin. This is especially true of those governing marriage, divorce, and the family; except that the celebration was determined by statute, and was therefore soon brought into harmony with the practice prevailing in the southwestern states, the contemporary Virginia plan being at first adopted as a model. The vast region bearing the name of Louisiana was acquired from France in 1803. For the purpose of government it was presently divided into two parts, lying respectively north and south of the thirty-third parallel. The northern portion, called the "District of Louisiana," for law and administration was attached to Indiana Territory, while the southern portion, called the "Territory of Orleans"—having about fifty thousand inhabitants, French, Spanish, and English—in 1804 was provided with a separate government in which the lawmaking power was vested in a legislative council appointed by the president of the United States. In the next year this council was superseded by a representative assembly similar to that existing in the Mississippi Territory;[1263] and at the same time the northern region, under the new name of the Territory of Louisiana, was given a centralized government in which the legislative authority was in the hands of the governor and three judges holding by presidential appointment.[1264] A Digest of the Civil Laws now in force in the Territory of Orleans was later prepared. This contains minute provisions relating to marriage and divorce; but declares that, "besides the preceding general rules, there are divers formalities to be fulfilled for the publication and celebration of marriages, which are established by a special act of the legislature."[1265] But "such marriages only are recognized by law as are contracted and solemnized according to the rules which it prescribes."[1266]

On February 24, 1807, all contracts hitherto solemnized by the judge of any county, a justice of the peace, minister of the gospel, or by any person legally discharging the duties of commandant, are validated so far as relates to the ceremony and the authority of the person officiating, provided they are in other respects according to law.[1267] On April 6 of the same year appears a very elaborate statute—the "special act of the legislature" above mentioned—which in many of its provisions still constitutes the matrimonial law of Louisiana.[1268] By this act "any priest or minister of the gospel, regularly ordained or admitted into any religious society, may obtain a licence to celebrate marriages within this territory." For this purpose he must produce the usual credentials "to the judge of the parish within which his domicile is situated, take the oath of allegiance, and the oath of affirmation to support the constitution of the United States, and give bond with security in the sum of two thousand dollars, for the faithful performance of his trust." Quakers and Menonists are allowed the use of their own rites; and "when any parish judge shall think that there is not a sufficient number" of qualified priests or ministers, he may grant licenses to justices of the peace to "celebrate marriages in the parish in which they reside," on their giving a legal bond. All marriages must be celebrated in the parish where one of the persons has his domicile and in the presence of three witnesses.[1269]

The provisions of the act of 1807 requiring clergymen to procure license and give bond were repealed two years later.[1270] In 1820 marriages irregularly celebrated by the parish justices were validated; and these magistrates were in future given power to act.[1271] The law regarding the religious ceremony was made more flexible in 1826. "If there be no priest or minister of a religious sect domiciled in any one of the parishes of this state," it was then enacted, "the judge of that parish, if required by either of the parties, is authorized to send to any priest or minister residing in a neighboring parish a commission to come and celebrate marriages in the parish" where the judge has his jurisdiction.[1272] "Regularly commissioned notaries of the state" for the parish of West Feliciana were authorized to act in 1850.[1273] As the law now stands, the ceremony may be performed by these notaries; by justices of the peace and parish judges, within their respective parishes; by judges of the district courts; and by any minister or priest, "whether a citizen of the United States or not."[1274]

The first matrimonial legislation of Texas coincides with the earliest experiment in organized rule by settlers from the United States in that Mexican province. By an ordinance of January 16, 1836, adopted by the provisional government, all "judges, alcades, commissarios, and regularly accredited ministers of the gospel of whatever denomination," are given "power to celebrate the rites of matrimony in their respective municipalities, which shall be done in the presence of not less than three disinterested witnesses." Certificates are to be made by the person officiating, attested by one or more witnesses, one of which is to be "given to the bride, and the other filed with the archives of the municipality." Marriages hitherto "celebrated by bond or otherwise, under the heretofore existing laws," are declared valid; "provided that all officers who have attended to the same, shall on application of either party, or the friend of either party, file the bond or other evidence of such marriages with the archives and records of their respective municipalities." This must be done in ten days after the application, under penalty of one hundred dollars to the injured person, and the same fine from time to time every ten days till the papers are filed.[1275]