Among the commonwealths of this group Delaware alone has the honor of trying through legislation to put some limit upon the increase of the indigent and incapable classes, the marriage of paupers being forbidden under penalty. Michigan has taken a still more important step in advance, setting a worthy example of social legislation which ought to be followed throughout the country. By a stringent law of 1899, it is declared that no person afflicted with certain syphilitic diseases "shall be capable of contracting marriage." For so doing the transgressor shall be "deemed guilty of felony and upon conviction thereof ... , shall be punished by a fine of not less than five hundred dollars or more than one thousand dollars, or by imprisonment in the state's prison ... not more than five years, or by both such fine and imprisonment in the discretion of the court." Furthermore, it is especially provided that either husband or wife may be examined as a witness; and in all cases arising under the act a physician who has attended or prescribed for any person so affected "shall be compelled to testify to any facts found by him from such attendance."[1482]
An enlightened policy in a parallel direction is revealed by a recent law of Minnesota, similar to that of Connecticut, prohibiting the marriage of persons either of whom is epileptic, imbecile, feeble-minded, or afflicted with insanity, when the woman is under forty-five years of age;[1483] and Kansas has just enacted the same restraint.[1484] On the other hand, in no instance, apparently, has any effort yet been made to prevent the clandestine marriage outside the state of residents who thus seek to evade the requirements of their own laws.[1485]
Very generally, as elsewhere, indirect encouragement to matrimony is given by the suspension of prosecution or penalty, and through the legitimation of children. By the laws of Dakota and California, "every contract in restraint of the marriage of any person, other than a minor, is void;"[1486] and the same is true in the latter state regarding conditions of ownership imposing like restraints; but this rule "does not affect limitations when the intent was not to forbid marriage, but only to give the use until marriage."[1487] In many cases it is provided that marriages contracted out of the state are valid, if valid where they are formed; but Pennsylvania is the only commonwealth in the Union, except Georgia, directly promoting wedlock, her statute declaring that "all marriages not forbidden by the law of God shall be encouraged."[1488]
c) Certificate and record.—The laws of the middle and western states have reached substantial harmony regarding the preliminaries of marriage. The provisions for license and the other leading features of matrimonial administration in their main features are much the same, except in a few of the older commonwealths, where the system of ecclesiastical banns and some other peculiar usages are still maintained. Thus in Delaware, by the act of 1790, no minister is allowed to conduct the ceremony without first receiving a license authorizing the persons to wed, or, instead, unless the banns shall "be published between such persons intending to marry, at some church, chapel, meetinghouse, or stationary place of public religious worship belonging to the district, or of the congregation wherein the woman so intending to be married shall be resident, or in the next adjacent congregation of the same society, on the two several Sundays before the celebration thereof, immediately after divine service." The license is granted by the president or commander-in-chief duly attested under his sign manual; and it is issued from the office of the secretary of state. "In order to avoid fraud and collusion in obtaining such license," the person applying is required to enter into bond with good security in such sum as the president shall judge proper.[1489] All marriage licenses are to be lodged with the prothonotaries and justices of the peace of the respective counties, or with such of them as the secretary may think fit for convenience of the people, and these officers are required to submit a report every six months.[1490] After a century the system thus outlined is still maintained in its essential features. License or banns, "published at some place of stated religious worship, within the hundred of the woman's residence, on two Sabbaths immediately after divine service," is yet sanctioned. The requirement of bond is still retained.[1491] It is the duty of the clerk of the peace to designate at least six justices of the peace in his county to dispense licenses; and the state derives a revenue of two dollars for each license issued. By a provision still appearing in the statute-book, though obsolete in practice, negroes or mulattoes may be married without license or publication of banns; provided "that each party (being free) shall produce the certificate of the justice of the peace of the county that such party has made before him satisfactory proof of freedom; or (being ... servant), shall produce the written consent of his master or mistress."[1492]
The legislation of Ohio shows almost equal conservatism. For many years after the organization of the Northwest Territory a triple optional system of banns, license, or posting was there maintained. The law of 1788 requires that either on Sundays, holidays, or other days of public worship, in the towns where the bride and groom respectively dwell, the banns shall be thrice published; or that a written notice, under the hand and seal of a judge or a justice of the peace of the county, shall be affixed in some public place in such towns; or else a license shall be obtained from the governor authorizing the marriage without publication.[1493] The details of the plan were changed in 1803. License is then to be obtained from the clerk of the court of common pleas for the county where the woman resides. Twice publication of banns, the first time ten days before the wedding; or notice by posting during fifteen days, is declared sufficient. In the case of minors a license may be issued only when consent of parent or guardian is personally given or certified to, attested by two witnesses, one of whom must personally appear and make oath or affirmation that he saw the parent or guardian subscribe or acknowledge the same.[1494] After 1824 provision for public posting is no longer made,[1495] thus reducing the Ohio plan to the more familiar system of optional civil license or ecclesiastical banns which still survives. License is now issued by the judge of probate in the county of the female; and the law governing the consent of parent or guardian in case of minors is identical with that of 1803, except that since 1810 persons under age who have before been married are not required to give evidence of such approval.[1496]
By the first matrimonial statute of Michigan in 1805 a license system is not established; but evidence of parental consent to the marriage of minors is to be presented to the minister or magistrate performing the ceremony. Within one hundred days the latter is to return a certificate of the celebration to a clerk of the court in the district where it takes place, who is required to keep a record and report annually to the clerk of the superior court of the territory.[1497] So the law remained until 1820, when the triple optional system, as it then existed in Ohio, was introduced;[1498] but this is not found in the existing law, which requires license in all cases according to the more common American usage.
Neither banns nor license has at any time been required in New York during the century. Instead, as already pointed out, the person conducting the celebration is authorized to identify the parties by examining them or any other persons under oath.[1499] New Jersey has maintained a similar plan, except that non-residents are required to obtain a license from the county clerk five days before the wedding.[1500] At present in case of minors the powers and procedure of the person solemnizing are substantially the same as those of the county clerk or other officer where the license system prevails.[1501]
Pennsylvania has also followed methods peculiar to herself. From 1730 to 1885 certificate of parental consent seems to have been required for the marriage of minors; and such certificate was presented directly to the person or society conducting the celebration. By an act of the last-named year there was introduced a license system which in 1893 was modified so as to permit a license to be obtained from the clerk of the orphans' court, not only in the county where the marriage is to take place but also in the county of the residence of either the man or the woman.[1502] The clerk is to keep a marriage-license docket, "in which he shall make a complete record of the issuing of said licenses, and all matters which he shall be required to ascertain, relative to the rights" of the persons to obtain a license, "together with their ages and residences." In getting a license the persons may proceed in one of two ways. "Either separately or together" they may apply directly to the clerk, who by oath or affirmation is authorized to inquire concerning the legality of the contemplated marriage, and if there be no legal objection, to issue the license; or in like manner, if they prefer, they may "appear before any magistrate, alderman, or justice of the peace of the township, ward or county, wherein either ... resides, and in the county where the license is desired, who may ... inquire of them touching the legality of the contemplated marriage." These answers and the replies, duly subscribed and sworn to before the officer, may be forwarded to the clerk of the court, who if satisfied therewith, and that no legal objection to the marriage exists, may issue the license. But if either of the persons intending to marry is under the age of twenty-one, the consent of parent or guardian, given personally or attested by witnesses in the usual way, is necessary. The license shall have appended to it two certificates, one marked "original" and the other "duplicate." The certificate marked "original" shall be given by the solemnizer to the persons married; and the other must within thirty days be returned to the clerk in the county of the celebration, to be filed of record. It is, however, especially provided that in all cases where the persons intend solemnizing their own marriage, the clerk in "the proper county shall certify their right so to do in a declaration in the following form": "Legal evidence having been furnished to me, in accordance with the act of assembly ... this certifies that I am satisfied that there is no legal impediment to your joining yourselves together in marriage." When self-gifta thus takes place, the persons contracting are required to make duplicate certificates of their own wedding celebration, returning one of them to the clerk, as in other cases provided by law.[1503]
In the remaining nineteen states of this group not yet considered, except Alaska, the simple license system has been introduced. Save here and there in certain cases specially provided for, a license is always required. Thus, by the Minnesota law, "previous to persons being joined in marriage, a license shall be obtained from the clerk of the district court of the county in which the female resides," or, if she be not a resident of the state, then from the same officer "in the county where the marriage is to take place in the state;" but if there shall be no such clerk in either of the counties specified, no license is required. The clerk may inquire of the persons under oath as to the legality of the proposed marriage. If he "shall be satisfied that there is no legal impediment thereto," he shall grant a license and make a record thereof. Persons under age and not having had a former husband or wife must have the consent of the parents or guardians personally given or certified under their hands and seals, "attested by two witnesses, one of whom shall appear before said clerk, and make oath or affirmation that he saw said parent or guardian subscribe, or heard him or her acknowledge the same." If a "clerk shall in any other manner issue or sign any marriage license, he shall forfeit and pay a sum not exceeding one thousand dollars" to the persons aggrieved. The statute allows the clerk a fee of two dollars for each license issued.[1504]
Similar powers and functions are exercised by the clerk of the district court in Iowa and Montana;[1505] the county clerk, in California, Colorado, Illinois, Michigan,[1506] Nevada, Oregon, Utah, Wisconsin, and Wyoming; the clerk of the circuit court, in Indiana and South Dakota; the probate judge, in Kansas and Ohio; the county judge, in Nebraska; the county auditor, in Washington; the county recorder, in Idaho; and by the judge of the county court, in North Dakota. The license is issued by such officer from the county of the woman's residence, in Indiana, Ohio, and Oregon; from the county where either the man or the woman resides, in Michigan; from the county where the marriage is to take place, in California, Idaho, Illinois, Iowa, Montana, Nebraska, North Dakota, South Dakota, and Wyoming; from the "proper" county, in Kansas; and from "any county," in Colorado; from "a county auditor" in Washington; the county where one or both of the persons dwell, or from any county when both are non-residents, in Nevada; from the county of the bride's residence, or, if she be a non-resident, from that of the proposed marriage, in Wisconsin and Minnesota; and in Utah, from the county where the female lives, provided that when she is a widow or of full age, and it is granted on her application, it may be issued from any county. In Kansas and Indiana a license is not required in the case of Friends marrying according to their own usage; and the same is true in Iowa, California, and South Dakota, for the members of "any particular denomination having, as such, any peculiar mode of entering the marriage relation." Wisconsin requires the license to be obtained not less than five days previous to the persons being joined in marriage; and has also provided for celebration without license in urgent cases. Upon the application of either party to a proposed marriage, any county judge, court of record, or presiding judge thereof, in his discretion, by order may authorize solemnization without license or the five days' notice. Such order must be delivered to the person performing the ceremony, who is to return it in place of or in connection with the license to the register of deeds or of vital statistics.[1507] Michigan has likewise made provision for cases of emergency where social expediency seems to require exceptional rules. By a law of 1897, amended in 1899, entitled "an act to provide for the protection of the reputation and good name of certain persons," the judge of probate in each county is authorized to issue without publicity a license to any female who has lived with a man as his wife, or who for any other reason expressed in her application, deemed sufficient by the magistrate, "desires to keep the exact date of the marriage a secret, to protect the good name of herself and the reputation of her family."[1508]