A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

By a law of the Northwestern Territory in 1788, after banns, license, or notice by posting, persons may be joined in wedlock before any judge of the general court, or of the courts of common pleas in their respective districts, or before a minister of any religious society or congregation where he is settled; and the Quakers are especially guaranteed the enjoyment of their peculiar rites.[1412] Four years later the same authority is granted to all justices of the peace.[1413] In 1803 a new act appears. Now justices of the peace may perform the ceremony in their proper counties; Quakers and Menonists may use their own rites; and every "ordained" minister of any society or congregation is given the same authority, on presenting his credentials to the county court of common pleas,[1414] and receiving a license to that effect. But the function of such minister is no longer restricted to his own congregation; he may act anywhere in the state.[1415] The law was thus practically complete. Under the present statute of Ohio[1416] any ordained minister after obtaining a license from the county judge of probate; any justice of the peace in his county; any religious society "agreeably to the rules and regulations of their respective churches;" or the mayor of any city or incorporated village, in the county where it wholly or partly lies, is authorized to join persons in wedlock. A clergyman still has authority throughout the state; but since 1822, in each case, before he may legally act, it is necessary to exhibit his license to the court of the county where he intends to solemnize a marriage.[1417] When the marriage is of a minor, without the authority of a license, the person solemnizing is required to satisfy himself that banns have been duly published, and that the consent of parent or guardian has been obtained.[1418]

Indiana, admitted to the Union in 1816, Illinois in 1818, Michigan in 1837, and Wisconsin in 1848, were all included in the "Territory northwest of the Ohio," and, so far as they had inhabitants, were therefore originally affected by the laws and government established under the ordinance of 1787. Gradually, as each portion became a separate territory or an independent state, the early statutes, already considered in connection with Ohio, were retained, modified, or superseded. So far as the marriage celebration is concerned, the course of history in Indiana and Illinois need not here be dwelt upon. In the former commonwealth the ceremony may now be conducted by all ministers of the gospel and priests of every denomination, throughout the state; by judges of all courts of record, justices of the peace, and mayors of cities, within their respective counties; and by the Friends and German Baptists according to the rules of those societies. But no marriage, legal in other respects, is deemed void "on account of the incapacity of the person solemnizing the same."[1419] The present law of Illinois shows several variations. The ceremony may be performed either by a minister of the gospel in regular standing with the church or society to which he belongs; by a judge of any court of record; a justice of the peace; any superintendent of a public institution for the education of the deaf and dumb in the state; or, if either of the persons is a member of the "religious society known as Friends or Quakers, they may be lawfully married by making known their intention ... to a standing committee of an official meeting, at least one week before said marriage ... and by appearing in a public meeting or private gathering, before official witnesses of said body, with a certificate duly setting forth" their names and residences, with those of the parents, if living. This certificate, duly signed by the contracting persons and by the official witnesses, must be publicly read by one of the witnesses, and afterward entered in the records of an organized meeting of the society. In addition, the law guarantees every religious society the use of its own rites.[1420]

By the first marriage law of Michigan Territory, adopted in 1805 from the statutes of Massachusetts, so "far as is necessary and suitable to the circumstances," the wedding ceremony may be performed by justices of the peace and regular ministers of the gospel, when at least one of the persons marrying is an "inhabitant" or "resident" of the district where such clergyman or magistrate dwells; and there is the usual clause securing to all religious societies their peculiar usage or customs.[1421] In 1820 the contemporary law of Ohio was adopted, authorizing celebration, after license, banns, or posting, by justices of the peace in their own counties, or by ministers of the gospel in regular communion with any society of Christians according to the forms of the church to which they respectively belong.[1422] The same privilege is expressly reserved to Quakers and Menonists in 1827;[1423] while in 1832 "ordained ministers" in regular communion with their societies, "but not otherwise," may perform the ceremony, provided their credentials are first entered "of record" with the county clerk.[1424] The present statute is in substance nearly the same, except that the "ordained" minister, who "continues to preach the gospel" in the state, is not required to file his credentials as by the earlier acts. Non-resident clergymen are also authorized to perform the ceremony in the state, provided a proper record be kept and a return duly made according to law; but in all cases the person conducting the celebration is commanded first to examine at least one of the persons on oath as to the legality of the intended contract.[1425]

Wisconsin, whose law on the subject has been but slightly altered since 1839, authorizes solemnization by justices of the peace or court commissioners in the counties where they are elected; and throughout the state by any judge of a court of record, or by a minister or priest in regular communion with any religious society, so long as he continues to preach the gospel. Since 1851 Minnesota has had a similar statute; except that court commissioners are not mentioned, and instead the superintendent of the department for the deaf and dumb in the Deaf, Dumb, and Blind Institute of the state is given authority. In both Minnesota and Wisconsin Quakers, on complying with the law as to return of certificate, are permitted to use their own forms;[1426] a minister, before being empowered to act, is required to file a copy of his credentials of ordination with the clerk of the court in some county, and receive from him a proper certificate thereof; and the magistrate or other person performing the ceremony may in all cases examine at least one of the parties on oath as to the legality of the intended marriage.[1427]

In the remaining fifteen western states, not yet considered, there is relative uniformity regarding the law of celebration. Originating even as organized territories in recent years, these commonwealths have profited by the experience of the older communities whence their people have mainly come, and so there has been less reason for experimentation. The history of their marriage laws in general is therefore less eventful. Everywhere the optional civil or religious celebration is recognized. (1) In all cases justices of the peace are authorized to conduct the solemnization. Occasionally, as in Alaska, North Dakota, Oregon,[1428] Nevada, and Washington, their power is expressly confined to their respective counties or districts; elsewhere no such restriction appears. (2) Everywhere without exception the judges or justices of the higher courts of record are granted authority, although the particular courts named vary considerably from state to state. Thus, in Colorado, Kansas, Nebraska, and Wyoming the statute simply allows any "judge" to perform the ceremony; while in North Dakota the same power is bestowed upon every judge of a "court of record," and in Alaska and Oregon, on any "judicial officer" within his proper jurisdiction. It is granted to judges of the district courts, in their respective districts, in Nevada; to judges of the supreme and district courts, in Montana and Utah; to these same magistrates and to judges of probate, in Idaho; to the justices of the supreme court and the judges of superior courts, in California and Washington; to the justices of the supreme court and the judges of the circuit or county courts, in South Dakota; and to these same judges and to those of the district courts, in Iowa. (3) Throughout these states, in every instance, all ordained ministers, priests, or preachers of the gospel, duly authorized by the usages of their respective churches or societies, are allowed to celebrate matrimony; but there is wide diversity in the phraseology of the statutes. Their power is not limited to a particular place, but may be exercised anywhere in the state. Only in one case among these fifteen states, Nevada, is the clergyman required to exhibit his credentials and take out a formal license. Sometimes, as in Kansas, Nevada, and North Dakota, the Friends are expressly permitted to observe their own rites; or, as in California, Iowa, Nebraska, Montana, Washington, and the two Dakotas, there is a general clause in the law favoring all religious societies having peculiar methods of celebration. City mayors are allowed the same authority as magistrates and ministers in Iowa, Montana, Idaho, Utah, and South Dakota. By the law of the last-named state, as in New York, Indians are permitted to marry according to their own forms; and in the West, during the earlier stage of development, the governor has sometimes been granted authority to join persons in wedlock, such being the case formerly in Nevada and still in Idaho.

California, like New York, South Dakota, Wisconsin, Minnesota, and some other states, requires special precautions on the part of the person performing the ceremony, tending to prevent illegal or clandestine unions. He must first demand the "presentation of the marriage license; and if he has any reason to doubt the correctness of its statement of facts" as to identity of the persons, their names, ages, and places of residence, or the consent of their parents or guardians in case of minors, he must satisfy himself of the same; and "for that purpose he may administer oaths and examine the parties and witnesses in the like manner as the county clerk does before issuing the license." Idaho has a similar law; and that of Colorado allows the minister or magistrate, in case of minors having no parents or guardian, to perform the ceremony or not, according to his own judgment.[1429]

The statutes of many of the middle and western states require the presence of witnesses at the celebration. One witness is sufficient in South Dakota,[1430] as formerly in Dakota Territory; but two witnesses must attend in Alaska, Michigan, Montana, Minnesota since 1851, Idaho since 1864, Nebraska since 1867, Nevada since 1861, North Dakota since 1890, Oregon since 1854, Washington since 1866, Wisconsin since 1849, and Wyoming since 1869. New York requires one witness when the celebration takes place before a minister or a magistrate, and two witnesses when the marriage is by a written contract. The statutes sometimes contemplate the presence of witnesses when in terms it is not prescribed. Such is the case, for example, in New Jersey and California.[1431] In Pennsylvania the provision of 1701 requiring the attendance of twelve witnesses has not been expressly repealed; but, as already remarked, it is construed by the courts as being merely "directory," and "it has been ascertained that the requirement is no longer enforced. Two witnesses must be present" in that state "when any marriage is solemnized by the parties themselves."[1432]

No definite formula for the celebration is anywhere prescribed. Sometimes the statute contains a statement to that effect. Thus in Alaska, California, Idaho, Michigan, Minnesota, Nebraska, Nevada, North Dakota, South Dakota, Oregon, Pennsylvania, Washington, Wisconsin, and Wyoming it is expressly provided that no particular form for the ceremony is required, but the parties must solemnly declare in the presence of the person officiating, and usually of the attending witnesses, that they take each other as husband and wife. The same is true of New York, if the ceremony is performed by a magistrate; but when a clergyman officiates, it may be "according to the forms and customs of the church or society to which he belongs."[1433] In the case of Quakers or religious societies having as such any peculiar mode of celebrating marriage, the law usually provides, as already seen, that the ceremony or other mode of joining in wedlock shall be in accordance with their customs; and "where not so stated it is, of course, implied."[1434]

The laws of Montana, South Dakota, and formerly those of Idaho and California, contain a peculiar definition of matrimony and a provision for contract by "declaration," which, taken together, in effect allow persons to solemnize their own marriage, and to do so clandestinely, if they see fit. So by the California statute, as it stood from 1873 to 1895, marriage is defined as a "personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations." Furthermore, "consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases." "Persons married without the solemnization provided for" in the law "must jointly make a declaration of marriage substantially showing: 1. The names, ages and residences of the parties; 2. The fact of marriage; 3. That the marriage has not been solemnized. If no record of the solemnization of a marriage heretofore contracted be known to exist, the parties may join in a written declaration ... , substantially showing: 1. The names, ages, and residences of the parties; 2. The fact of marriage; 3. That no record of such marriage is known to exist." This declaration must be "subscribed by the parties and attested by at least three witnesses." These provisions are essentially vicious; and they gave rise to the so-called "contract" marriages, famous in California judicial history, the most notorious case being that of Sharon v. Sharon, which in its various phases was for years before the state and federal courts.[1435] So great were the evils of clandestine marriages, and the resulting conflicting and often false claims to property or inheritance under this law, that in 1895 a tardy remedy was sought in legislation. Section 75 of the code, as above quoted, allowing a declaration of marriage, was repealed outright. The definition in sec. 55 was amended to read, "Consent alone will not constitute marriage; it must be followed by a solemnization authorized by this Code;" and for the future sec. 57, instead of its former dangerous terms, declares that "consent to a marriage and solemnization thereof may be proved under the same general rules of evidence as facts are proved in other cases."[1436]