A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

Generally throughout the region under discussion penalties by fine or imprisonment are prescribed for celebration without a license or for illegally issuing the same.

In every instance, except in Alaska, the person or society conducting the celebration is required to make a return to the officer authorized to receive it, either in the town or, usually, the county, where the license was issued, or in that of the marriage.[1509] Such return is made either by separate certificate, by indorsement on the license, or by certificate appended to it. Several states, however, have enacted special provisions. In South Dakota, for example, the marriage certificate must be "filed with the clerk of the city or town where the marriage was solemnized, or where either of the parties resides," or with the "register of deeds of such county." By the Colorado statute return is made to the clerk issuing the license; and the solemnizer must also send a report to the clerk of the county where the marriage takes place. In Iowa the person performing the ceremony is to make return to the clerk of the district court; and, "when the services of a clergyman or magistrate are dispensed with, the husband must make the return." California has enacted that "when unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman. A certificate of such marriage must be made and delivered by the clergyman to the parties, and recorded upon the records of the church of which the clergyman is a representative;" and "no other record need be made." Furthermore, when members of a religious society, having as such peculiar rites, are married without a license, as the law permits, they must join in a written declaration of the marriage, which shall be signed by themselves and attested by at least three witnesses. Within thirty days after the wedding this declaration must be filed by the husband with the county recorder, who, after it is duly acknowledged, shall record the same as in grants of real property.[1510] New York requires that the certificate, given to each of the married persons on request, signed by the officiating magistrate, shall be filed and recorded, if within six months it is presented to the clerk of the city or town where the marriage took place, or where either the bride or groom resided. When it is a clergyman who conducts the celebration, his certificate thereof may in the same manner be filed and recorded, "if there be endorsed thereon or annexed thereto, a certificate of any magistrate residing within the same county with such clerk, setting forth that the minister is personally known to such magistrate, and has acknowledged the execution of the certificate in his presence;" or that the execution was proved to the magistrate by the oath of a witness known to him.[1511]

By the rules prevailing in every state, save New Jersey, the official receiving the return must register or file the same of record. The prescribed term within which the report of the celebration must be submitted is thirty days (or "one month") in California,[1512] Colorado, Idaho, Illinois, Kansas, Minnesota, Montana, Nevada, New Jersey,[1513] North Dakota, Ohio,[1514] Oregon, Pennsylvania,[1515] South Dakota, and Utah; ninety days (or "three months"), in Indiana, Iowa, Michigan, Nebraska, Washington, and Wyoming; and six months in New York. South Dakota, in addition to the return by the solemnizer, provides that within six months after the wedding the certificate given to the persons married may be "filed" in the manner above described; and, when thus filed, it must be entered in a book to be provided by the clerk or register for the purpose.[1516] By the Wisconsin law the license, with a certificate of the marriage, must be returned by the person conducting the celebration to the register of deeds of the county where the license was issued, provided that in cities of the first class the report shall be sent to the registrar of vital statistics, who is to place it on file.[1517] In Delaware the person solemnizing must keep a record and "annually, in March, deliver to the recorder of deeds for the county, a true extract therefrom" of all entries for the year preceding.[1518]

Only in Wisconsin is there any provision for return when the marriage of a resident takes place outside the state.

Provision for giving a certificate to the persons married, on request or otherwise, is made by Alaska, California, Idaho, Iowa, Michigan, Minnesota, Montana, Nebraska, Nevada, New York, Oregon, Pennsylvania, South Dakota, Washington, Wisconsin, and Wyoming. Creditable progress is also shown in a number of the states of this group in providing for a proper record of marriages, and for the collection, registration, and publication of social statistics. Thus in California, Delaware, Idaho, Iowa, Michigan, Nevada, New Jersey, New York, Ohio, South Dakota, and Wisconsin the person conducting the celebration is required to keep a record;[1519] and everywhere, save in one instance, as already seen, the clerk or other officer of the county or town must register the facts contained in the license issued or the certificate returned; and usually the original documents are filed for preservation.[1520] Moreover, a goodly number of commonwealths have wisely created systems of state registration which promise to be of great service in the future of American society. Beginning in 1881, Delaware has established such a system. The state board of health, composed of "seven physicians of skill," has general oversight, appointing one of its own number as secretary, who performs the duties of "superintendent of registration of vital statistics." To him the recorders of the several counties are required to send information.[1521] An elaborate registration act was adopted in New Jersey in 1888; and this, as amended in 1892, is still in force. Thirty days after the solemnization of any marriage a certificate thereof is to be sent to the proper officer, setting forth the "name, age, parentage, birthplace, occupation, and residence of each of the persons married, the time and place of the marriage, the condition of each of the persons married, whether single or widowed, the name of the minister, magistrate, or person by whom, or of the religious society before which the marriage was solemnized, and the names and residences of the witnesses." The certificate is to be returned to the "registrar of vital statistics," or, if there be none, the clerk of any city, borough, town, or other municipal government, or to the assessor or clerk of a township. These local officers are required each month to forward the certificates and the "special return" provided for by law to the state board of health, whose secretary is styled the "medical superintendent of vital statistics."[1522]

Ohio has a similar plan of local and state administration. The mayor of each of the smaller cities and villages, and six persons nominated by the council, including two medical practitioners, constitute a board of health which is authorized to appoint a health officer and "create a complete and accurate system of registration of births, marriages, deaths, and interments, for the purpose of legal and genealogical investigations, and to furnish facts for statistical, scientific, and sanitary inquiries." The secretary of state is required each year to prepare and submit to the general assembly a full and accurate report of the statistics of Ohio.[1523] A system of state registration of births, marriages, deaths, and divorces has existed in Michigan since 1867. The secretary of state is required to furnish the clerks of the respective counties with suitable blank books for record and forms for reports. The reports of these local officials are to be properly bound and indexed under the direction of the secretary; "and with such assistance as may be voluntarily rendered by any authorized committee appointed by the medical faculty of the University of Michigan, or by any regularly authorized medical society ... , he shall prepare such tabular statements, results, and deductions therefrom as will render them of practical utility, and make report therof annually to the governor." But in reality this report, under the general direction of the secretary, is prepared and published by the secretary of the state board of health.[1524]

As early as 1852 Wisconsin made provision for registration of births, marriages, and deaths; and the plan then adopted, with some modification, still exists. By a statute of 1897 the register of vital statistics in every city having such an officer is required to keep a record of all marriages celebrated therein, in the same way as he does of births and deaths. To him the persons or societies conducting marriage celebrations are required to send certificates thereof; and every week these certificates must by him be forwarded to the register of deeds of the county or city. For the commonwealth the secretary of the state board of health, under the direction of the secretary of state, performs the same functions as discharged by that official in Michigan.[1525]

Provision for similar registration, under authority of the state boards of health, is made by the laws of Indiana, Iowa, Kansas, Minnesota, and Pennsylvania. California has a similar statute. Careful provision is made for keeping registers of births by physicians and midwives; of deaths, by clergymen who officiate at funerals, coroners who hold inquests, sextons and undertakers who bury deceased persons; and by those who conduct marriage celebrations. Certified copies of all these registers are to be filed quarterly with the respective county recorders; and every three months these officials are required to transmit a "certified abstract" of their own registers to the secretary of the state board of health at Sacramento. This body consists of seven physicians appointed for four years by the governor; and at each biennial session of the legislature it is authorized to make a report, "with such suggestions as to legislative action" as it deems proper.[1526]

The New York law is very careful and elaborate. There are local boards of health in towns, incorporated villages, and cities. In the town the board consists of the clerk and the justices of the peace, together with a "citizen" appointed by them; in the incorporated villages, of from three to seven members nominated by the village trustees. The village and town boards each hold office for one year, and each is authorized to appoint a "competent physician" to serve as "health officer," who, in the case of the village, may not be a member of the board. The city board is composed of six members, at least one of whom shall be a physician, all appointed by the common council. The board thus constituted is authorized to choose a president and to select a competent physician as health officer. The six members hold office for one, two, and three years, respectively, by pairs. It is made the duty of each of these local boards "to supervise and make complete the registration of all births, marriages, and deaths occurring within the limits of its jurisdiction in accordance with the methods and forms prescribed by the state board of health, and to secure the prompt forwarding of the certificates of birth, marriage, and death to the state bureau of vital statistics after local registration." To attain completeness in such registration, "it shall be the duty of the parents or custodians of every child, and the groom at every marriage, or the clergyman or magistrate performing the ceremony, to secure the return of the record of such birth or marriage to the board of health or person designated by them within thirty days from the date" of the same, "and each record shall be duly attested by the physician or midwife (if any) in attendance at such birth, or the clergyman officiating at such marriage." If in any place the state board of health ascertains that the registration is "not completely and well made," it may notify the delinquent local board that within one month such "defects and neglects in the records must be amended and prevented." If the abuses are not remedied within the period named, the state board is required to take control of the records, and to "enforce the rules and regulations" so as to make them complete.