These two states have also provided for the collection of statistics from coroners, heads of families, and physicians; and, like Kentucky and Arkansas, they have established state systems of registration. On or before the first of March annually the clerk or other official in every county is required to submit to the state auditor of public accounts a full report of the facts contained in his marriage register; and every year the auditor is to prepare an abstract of the county reports and submit it to the general assembly at each regular session.[1391]
III. THE MIDDLE AND WESTERN STATES[1392]
a) Solemnization.—For half a century after the Declaration of Independence New York abstained from any legislation regarding the marriage celebration. The optional civil or ecclesiastical ceremony was still allowed as in the provincial era. In the meantime acts were passed for the punishment of bigamous and other unlawful unions; and in 1813 the statute-maker felt himself called upon to deal with the same hard case of conscience which had long before troubled the people of Virginia and Massachusetts. It was decreed that "every negro, mulatto, or mestee within this state, who is now a slave for life, shall continue such ... unless manumitted according to law; and the ... baptizing of any slave shall not be deemed ... a manumission." All marriages contracted "wherein one or more of the parties was, were, or may be slaves, shall be considered equally valid" as if they were free; but here also it is carefully provided that nothing in the law shall be construed so as to cause the bondman to be manumitted.[1393]
The revised statutes of 1827-28 contain a general "title" regulating matrimony which in many respects forms the basis of the existing law. "For the purpose of being registered and authenticated" marriage shall be solemnized only by the following persons: (1) ministers of the gospel and priests of every denomination; (2) mayors, recorders, and aldermen of cities; (3) judges of the county courts and justices of the peace. Quakers and Jews may "continue" to use their own rites. Record of marriage certificates is provided for; and in place of license or banns—neither of which is mentioned—the person performing the ceremony is authorized to identify the parties, if either is a stranger, by the oath of some person whom he knows.[1394] The existing law contains a similar provision. Under like circumstances the minister or magistrate must ascertain from the applicants their right to contract marriage, and for that purpose he may examine one or both of them, or any other person under oath, "which examination shall be reduced to writing and subscribed by the parties."[1395] Throughout the century the law regarding celebration has remained unchanged in general character, although authority to perform the ceremony has been extended to other officials and magistrates.[1396] The state steadily maintained the validity of marriages entered into by simple agreement without any formal celebration. It was enacted in 1887 that the provisions of the statute shall not be "construed to require the parties to any marriage, or any minister or magistrate to solemnize the same in the manner "therein prescribed;" but all lawful marriages contracted in the manner heretofore in use in this state, shall be as valid as if this article had not been passed."[1397]
The usual evils followed: but an effective remedy seems at last to have been provided. By an act of April 11, 1901, a marriage must be solemnized either (1) by a clergyman or minister of any religion, or the leader of the Society for Ethical Culture in the city of New York; (2) a mayor, recorder, alderman, police justice, or police magistrate of a city; (3) a justice or judge of a court of record or municipal court, or a justice of the peace; or (4) by "a written contract of marriage signed by both parties, and at least two witnesses who shall subscribe the same, stating the place of residence of each of the parties and witnesses and the date and place of marriage, and acknowledged by the parties and witnesses in the manner required for the acknowledgment of a conveyance of real estate to entitle the same to be recorded. Such contract shall be filed within six months after its execution in the office of the clerk of the town or city in which the marriage was solemnized." After the first day of January, 1902, no marriage claimed to have been contracted otherwise than in this article provided "shall be valid for any purpose whatever." The act, however, declares the validity of every lawful union formed "in the manner and pursuant to the regulations" of a religious society to which either person belongs.[1398] Thus with the beginning of the new century the "common-law" marriage appears to have finished its long course in New York state.
The statutes of that commonwealth relating to contract or solemnization are extended to Indians residing in the state; although it is especially provided that those "who have heretofore or shall hereafter contract marriage according to the Indian custom or usage, and shall cohabit as husband and wife, shall be deemed lawfully married. Indian marriages may be solemnized by peace-makers within their jurisdiction with the same force and effect as by a justice of the peace."[1399]
For New Jersey the first matrimonial law of the period under review is that of March 4, 1795, repealing an act of March 24, 1719. By this law every justice of the peace and "every stated and ordained minister" in the commonwealth is given power to perform the wedding ceremony; and, in addition, every religious society is permitted to employ its own usage in the marriage of its members; but such contracts are to be recorded in the same way as those before a minister or magistrate.[1400] Amendments were made from time to time down to 1882, when an act appears which in nearly all of its leading provisions is still in force.[1401] Marriage may now be solemnized in the state by every judge of a court of common pleas; any justice of the peace,[1402] mayor, recorder, or police justice; and by every stated and ordained minister of the gospel. In addition, every religious society in the state may join together in wedlock persons one or both of whom are its members; and by a later enactment authority is conferred upon the chief justice and the associate justices of the supreme court, the chancellor and every vice-chancellor of the equity courts, in as full measure "as if the marriage were solemnized by a stated and ordained minister of the gospel."[1403] The marriage of a minor may not be solemnized without certificate of parental consent, whose genuineness must be proved by the oath of at least one witness of full age and discretion.[1404]
Pennsylvania has shown remarkable conservatism in her regulation of the marriage celebration. After two centuries, the act of 1701, taking its form in that of 1693, is with slight alteration still in force. It contains no precise designation of the persons who may perform the ceremony. Its spirit is revealed in the dictum of George Fox, elsewhere quoted: "We marry none, but are witnesses of it." Self-betrothal and self-gifta, as in early mediæval days, are still practiced by the Quaker descendants of the ancient Teutons. In 1885 a statute expressly authorizes a man and a woman to solemnize their own marriage.[1405] This provision and a later requirement of license in all cases are the only legislative changes affecting the celebration since 1730, when certificate of parental consent was demanded. Now, as in 1701, the bride and groom, taking each other by the hand, are permitted to plight their vows in the presence of at least twelve witnesses, one of whom being a justice of the peace; although the courts have decided, as indeed they could hardly fail to do, that this provision is merely "directory" and not mandatory;[1406] for the original enactment declares that it shall not extend "to any that marry in their own society in the absence of a justice of the peace."[1407] Such is the liberty permitted by the law; but the practice of the majority of the people probably does not differ much from the common usage elsewhere in the United States. From an act of 1849, still retained in the statute-book, one may perceive who are the officers usually called upon to perform or witness the wedding ceremony. "Every person in whose care or profession may be found the record kept by any minister of the gospel, judge, alderman, or justice of the peace, of any marriage contract solemnized" by or before the same shall on application, and the payment or tender of a fee of fifty cents, deliver to the applicant a full transcript of such record, with a proper certificate of its correctness.[1408]
There is a sharp contrast between the broad liberalism of Pennsylvania and the narrow, even reactionary, policy of Delaware, whose territory also once formed a part of the proprietary domain of William Penn. The act of January 29, 1790, is decidedly retrogressive. Its keynote is pitched in the preamble, "Whereas," we are assured, "matrimony is an honorable institution of Almighty God, designed for the mutual convenience and happiness of mankind; and sober, discreet, and advised union of persons in matrimony is the duty of every good citizen, and the unadvised, clandestine, loose, and unseemly proceedings in marriage, tend to introduce a contempt and irreverent regard for that holy institution, and a dissoluteness of manners among the thoughtless part of the community;" furthermore, since evils may arise "to persons secretly and improperly uniting themselves ... without knowledge of their parents, guardians, or friends; and the causes are now removed, which rendered it convenient to have marriages celebrated by justices of the peace": therefore, under penalty of one hundred pounds lawful money for disobedience, it is declared that marriages between white persons may be celebrated only by "ministers or preachers of the gospel, appointed or ordained according to the rites and ceremonies of their respective churches, or by the religious society to which they belong" according to its established mode and usage.[1409] Civil marriage was thus completely abrogated, to be grudgingly restored only after more than fourscore years. Since 1874 the mayor of Wilmington has had a share in the matrimonial business, otherwise the law of 1790 still governs the nuptial celebration.[1410]
The foundation of Marietta in 1788, and the subsequent organization of the first territory of the United States, under the ordinance of 1787, constitutes an event scarcely second in significance to any in the whole course of American history. It marks the beginning of distinctively western institutions, although these, especially as regards the local political organisms, are in many respects predetermined and molded by those of the two old middle states, New York and Pennsylvania.[1411] The laws adopted or enacted for the region of Ohio, both before and after that state was admitted to the Union in 1802, form in principle and often in detail the models or prototypes on which rest the legal systems of the numerous commonwealths filling the vast expanse of territory stretching from the Alleghanies to the Golden Gate. This is surely true in general of the laws of marriage; although Ohio, in still clinging to the optional plan of civil license or oral ecclesiastical banns, has retained an archaic feature which finds little imitation in the other western states.