Fourteen states of the middle and western group have provided that when a marriage has been solemnized by a person professing to be authorized, but not authorized by law for that purpose, its validity is "not affected by such lack of authority, if it is in other respects valid and consummated with the belief of the parties, or either of them, that they have been lawfully married."[1437] These states are Idaho, Indiana, Michigan, Minnesota, Montana, New York, Nebraska, North Dakota, Nevada, Oregon, Utah, Washington, Wisconsin, and Wyoming. In all cases the person falsely representing himself to have authority is made liable to severe penalties.[1438] California requires that "marriage must be licensed, solemnized, authenticated, and recorded;" but it is not invalidated by non-compliance with the law "by other than the parties" themselves.[1439] Idaho, Montana, and South Dakota have similar statutes, although the act of the parties is not thus excepted.[1440] In Iowa "marriages solemnized, with the consent of parties, in any other manner" than presented by the statute, "are valid; but the parties thereto, and all persons aiding or abetting them, shall forfeit to the school fund the sum of fifty dollars each; but this shall not apply to the person conducting the ceremony, if within ninety days thereafter he makes the required return to the clerk of the district court."[1441] In Indiana "no marriage shall be void or voidable for want of license or other formality required by law, if either of the parties thereto believed it to be legal marriage at the time."[1442] The person solemnizing, in Colorado, is protected by the duly issued license, if he has no personal knowledge of the incompetency of the parties.[1443] In Ohio, "when the person who solemnized the marriage had no license, it was held that it was to be inferred that the parties openly and mutually consented to a contract of present marriage;" and when they thereafter cohabited as husband and wife, "this consent constituted a legal marriage, and the man having then a wife living might properly be convicted of bigamy."[1444]
b) Forbidden degrees: void and voidable marriages.—Nineteen out of the twenty-five middle and western states have each provided a statutory definition of marriage.[1445] In Oregon, Indiana, and in Washington since 1854, it is defined briefly as a civil contract; in Alaska it is a civil contract which may be entered into by males of twenty-one and females of eighteen years, if otherwise capable; in Colorado and Kansas it is "considered in law" as a civil contract to which the consent of the parties is essential; in Iowa[1446] since 1851, Nebraska since 1855, and Wyoming since 1869, it is a civil contract to which the consent of parties capable in law of contracting is necessary; in Michigan, Minnesota since 1866, Nevada since 1861, New York[1447] since 1828, and Wisconsin since 1849, "so far as its validity in law is concerned," it is a civil contract under the same conditions as in the last-named group of states. On the other hand, several commonwealths have sanctioned a definition which seems to imply the element of status in the marital relation. Thus by the laws of Idaho, Montana, South Dakota, California, and North Dakota, marriage is a personal relation, arising out of a civil contract to which the consent of parties capable of making it is necessary. In North Dakota, although marriage is a personal relation so arising, it must be "entered into, maintained, annulled, or dissolved" only as provided by law; and in California, since the reform of 1895, consent must be followed by a solemnization authorized by the code. Moreover, in South Dakota the consent to a marriage "must be to one commencing instantly, and not to an agreement to marry afterwards." The law of Ohio is similar;[1448] and in Idaho and California neither party to a nuptial contract is "bound by a promise made in ignorance of the other's want of personal chastity, and either is released therefrom by unchaste conduct" of the other, unless both participated therein.[1449]
In all the states of the group under review, except in Colorado, New Jersey, and Pennsylvania, the age of consent to marriage is fixed by the law, or it may be inferred from its provisions. For males it is twenty-one in Alaska and Washington;[1450] eighteen in California, Delaware,[1451] Idaho,[1452] Indiana, Michigan, Minnesota, Montana, Nebraska, Nevada, New York, Ohio, Oregon, South Dakota, Wisconsin, and Wyoming; seventeen in Illinois; sixteen in Iowa,[1453] North Dakota,[1454] and Utah;[1455] and only fifteen in Kansas. For females it is eighteen in Alaska, Washington, Idaho, and New York; sixteen in Delaware, Indiana, Michigan, Montana, Nebraska, Nevada, Ohio, and Wyoming; fifteen in California, Minnesota, Oregon, South Dakota, and Wisconsin; fourteen in Illinois, Iowa, and Utah; thirteen in North Dakota; and only twelve in Kansas.
The age below which the consent of parent or guardian is required for the marriage of a minor is prescribed in all cases, except in Alaska, Kansas, New York, and Michigan.[1456] Such consent must precede the granting of license; or, where the license system has not been adopted, it must be made known by certificate or otherwise to the person or society conducting the celebration before the ceremony may be performed.[1457] In all cases, save the three named, the age for males is twenty-one, except in Idaho, where it is eighteen. For females it is eighteen in all these states, except in Idaho, where it is sixteen; and in Pennsylvania and Wyoming, where it is twenty-one. Formerly in Delaware indented servants could not lawfully marry without the master's consent; and for so doing such persons offending must "serve their respective masters or mistresses six months after the time of their servitude by indentures or engagements has expired; and if any person being free, shall marry with a servant without such consent ... he or she ... shall pay to the master or mistress of the servant, if a man, ten pounds, and if a woman, five pounds; and the servant so married shall abide with the master or mistress according to indenture or engagement six months as aforesaid."[1458] Later the penalty for a free person marrying a servant, if a man, was fixed at thirty dollars, of if a woman, at fifteen.[1459]
All the states under consideration have legislated concerning forbidden degrees of consanguinity. Relations in the direct line, with brothers and sisters, are, as elsewhere, always included; although many of the newer states and some of the older, have not thought it necessary to continue the solemn farce derived from ancient ecclesiastical usage of specifically interdicting wedlock with a grandparent or with a grandchild; and sometimes the connections by affinity are not mentioned, or, as in Wyoming, they are expressly exempted from the inhibitions. Frequently, however, a man is denied the privilege of taking his step-mother or his mother-in-law to wife,[1460] and in every state of the group, expressly or by implication,[1461] marriage between aunts and nephews, or uncles and nieces, is forbidden. Minnesota since 1851, and Wisconsin since 1839, prohibit marriage between persons nearer of kin than first cousins, computing by the rules of the civil law; and in effect the same is true of Utah.[1462] On the other hand, the statutes of Indiana, Ohio, Nevada, and Washington are more severe, allowing marriage only between persons "not nearer of kin than second cousins;" first cousins are likewise prohibited from intermarrying in Illinois, Kansas, Wyoming, the two Dakotas, Michigan, Pennsylvania, Oregon, and, apparently in Colorado;[1463] while in Alaska marriages are prohibited within the fourth degree of the whole or the half-blood. But in no instance is a union between a sister-in-law or a brother-in-law interdicted. In all cases marriages within the prohibited degrees are both incestuous and void, except in Delaware, Minnesota, Oregon, Pennsylvania, Indiana, and South Dakota, where they are only void; in New Jersey, where they are only voidable;[1464] in Washington, where they are only incestuous; and in Ohio, where they are not expressly declared to be either incestuous or void. However, in the three states last named such unions are forbidden and punished; and in general for violation of the law by the persons contracting or the person solemnizing marriages declared void or voidable severe penalties are often imposed.[1465] By exception, in Colorado, it is provided that nothing in the law regarding degrees "shall be so construed as to prevent the people living in that portion of the state acquired from Mexico from marrying according to the customs of that country."[1466]
In these states the grounds for prohibiting wedlock other than kinship or affinity are as varied, confusing, and contradictory as in New England or the southern group. For the same cause a contract declared void in one state may be voidable or merely forbidden and punished in another. The statutes disclose a great diversity of conditional or qualifying clauses which render it almost hopeless to make any trustworthy generalizations. Thus bigamous marriages are void or voidable by judicial decree in California, Delaware, Idaho, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Oregon, Pennsylvania,[1467] South Dakota, Utah, Wisconsin, and Wyoming; while in Colorado,[1468] Illinois, Ohio, and Washington they are prohibited and made punishable. In Michigan, Minnesota, Nevada, and Wisconsin the law applies only when the marriage was solemnized in the state; while in California, Idaho, Minnesota, North Dakota, New York, and South Dakota such unions are void or voidable unless, as expressed in the California statute, "the former husband or wife was absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or was generally reputed or believed by such person to be dead" when the second marriage was contracted; "in either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal."[1469] Illinois and Ohio have each a similar provision.[1470]
On the abrogation of polygamy, Utah had a problem to solve analogous to that of the southern states after the enfranchisement of the negroes. By an act of March 9, 1896, rights of inheritance were secured to the issue of bigamous and polygamous marriages; and a few days later, by general enactment, the children of such unions "heretofore contracted between members of the Church of Jesus Christ of Latter-day Saints, born on or prior to the fourth day of January," 1896, were legitimated.[1471]
The laws of California, Idaho, Michigan, Minnesota, Nebraska, North Dakota, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming render a marriage void or voidable when entered into by either person through force or fraud;[1472] those of New York,[1473] when force, fraud, or duress has been practiced; and those of Nevada, when fraud has been proved.[1474] In Colorado the marriage of a female obtained by force or fraud is prohibited and punished; in Iowa, Kansas, Montana, and Nevada, when obtained by force, menace, or duress; in Illinois, Montana, and New York, when the marriage of either person has been gained through false persuasion; while New Jersey, in more general phrase, treats as void the marriage of a female "against her will."
Marriages are also void or, usually, voidable when either person was of unsound mind, as in California, Idaho, or South Dakota; or insane or an idiot, as in Illinois, Indiana, Iowa, Kansas, Michigan, Nebraska, Utah, Wisconsin, and Wyoming;[1475] or wanting in age or understanding, as in Indiana, Kansas, Minnesota, Nevada, New Jersey, New York, Oregon, Washington, and Wisconsin;[1476] or physically incompetent, as in California, Idaho, Iowa, Kansas, Montana, Nebraska, New Jersey, New York, Wyoming, and the two Dakotas;[1477] or below age of legal consent, as in all the last-named states, and also in Michigan, Nevada, Ohio, Utah, Wisconsin, and Wyoming.[1478]
Several states of this group, like those of the South, have attempted to check miscegenation by statute. Marriages between white persons and negroes or mulattoes are thus declared illegal and void in California,[1479] Colorado, Delaware, and Idaho; and with negroes or Mongolians in Utah. The prohibition of such unions in Nebraska extends to persons having one-fourth, and in Indiana to those having one-eighth, negro blood; while in Oregon since 1866 it has been applied to those with one-half Indian or one-fourth negro or Chinese blood in their veins.[1480] In Nevada similar unions, without specification of the degree of dark blood, are forbidden and punished. On the contrary, Michigan, by an act of 1883, provides that "all marriages heretofore contracted between white persons and those wholly or in part of African descent are ... valid and effectual in law for all purposes, and the issue" shall be deemed legitimate.[1481]