The history of marriage in the middle and the New England colonies leads us to a similar result. From the facts brought to light in the Lauderdale Peerage case, backed by the testimony of Rev. John Rodgers in 1773, it is almost certainly established that the common-law marriage was valid in New York province, and that for eighty-four years preceding the Revolution no other law relating to the subject was in force.[601] In New England the formalities prescribed by the statutes were doubtless usually observed. Yet there were many clandestine and other irregular marriages, and in some instances we know that these were treated as valid.[602] Such was the case in the Plymouth jurisdiction, where "self-marriage" was punished only by a fine. In Massachusetts similar cases of "hand-fasting" and "self-gifta" appear. In one case, that of Governor Bellingham in 1641, the contract was not declared void by the court, although the grand jury had presented his excellency for his offense. Fifteen years later Joseph Hills, "being presented by the grand jury for marrying of himself contrary to the law of the colony," confessed his fault and was merely "admonished by the court."[603] Moreover, at no time during the colonial and provincial periods did the statutes of Massachusetts expressly declare marriages void for disregard of the celebration or other formalities prescribed;[604] and the same is true of the daughter-colony of Connecticut. By the Rhode Island acts of 1647 and 1665 the issue of a union not formed by the "due and orderly course of law" is pronounced illegitimate; but it is very suggestive that the words of nullity do not appear in any of the later statutes of that province. Occasionally in the colonies statutes were enacted to validate irregular marriages previously contracted. Such were the acts of Rhode Island, 1698; of North Carolina, 1766; and of Virginia, 1780. But it would clearly be rash to infer that the marriages concerned were in fact void without such special intervention. Notoriously this is but a speedy and simple way of quieting doubt as to the status of the children or their rights of property and inheritance. Whether a court would nullify the contracts in question is a different matter. On the whole, the evidence seems clearly to show that the colonial statutes sustained the same relation to the English common law as did the constitutions of the English church requiring the solemnization of wedlock before a clergyman. The colonial statute, like the ecclesiastical constitution, might determine the legal forms which must be observed to escape a penalty; but the common-law marriage was nevertheless valid unless expressly declared null and void in the act itself. Furthermore, it is by no means certain that the colonial assemblies were generally competent, even in this way, to set aside the common law.
After the beginning of independent national life the English common law as a whole in its various branches was retained as a part of the law of the land, unless superseded by constitutional or statutory legislation. It was therefore inevitable that the state and federal courts, as cases arose, should declare whether it had been so superseded. There could no longer be any question, as in the colonial period, regarding the competency of the legislator to define the conditions of a valid matrimonial contract. A brief history of the acceptance or rejection of the common-law marriage in the United States, whether by statute or by judicial decree, may now be presented.[605]
The leading case came before the supreme court of New York in 1809, when Chief Justice Kent accepted as binding a common-law marriage, declaring that no solemnization was requisite; that "a contract of marriage made per verba de praesenti amounts to an actual marriage, and is as valid as if made in facie ecclesiae;" and that the existence of such a contract may be proved "from cohabitation, reputation, acknowledgment of the parties, acceptance in the family, and other circumstances from which a marriage may be inferred."[606] This decision determined the policy of New York for nearly a century, until the common-law marriage was at last superseded by the statute of 1901; and its influence upon the tribunals of other states has been increased through the sanction of its doctrine by the leading authorities upon matrimonial law.[607] The contract by mere present consent of the parties, regardless of the statutory requirements, has been widely accepted as valid in the group of southern and southwestern states and territories. It was so judicially accepted in South Carolina[608] at least as early as 1832; in Louisiana[609] in 1833; Georgia[610] in 1860; District of Columbia[611] in 1865; Alabama[612] in 1869; Arkansas[613] in 1872; Missouri[614] in 1877; and Florida[615] in 1880. By the earlier decisions of Tennessee a strict compliance with the statute was required, the court even declaring in 1829[616] that a marriage solemnized before a justice of the peace out of his own county was "absolutely null and void." This opinion was sustained by a decree of 1831; but later judgments favor the common-law agreement. Texas has had a similar experience. In 1883 and again in 1894 the common-law contract was repudiated, the court deciding that license and parental consent according to the statute were essential;[617] but more recently the highest tribunal has held the opposite view.[618] Among the states of the middle and western group Pennsylvania in 1814 was first to follow the New York precedent.[619] Ohio[620] came next in 1861; and Illinois[621] in 1873. By the law of Michigan, declares Judge Cooley decisively in 1875—in an opinion accepted as authority by the federal courts—a marriage may be good, although the statutory regulations have not been complied with. "Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof" of a binding marriage; and "this," he adds, "has become the settled doctrine of the American courts."[622] This view has been accepted in Iowa[623] in 1876; Minnesota[624] in 1877; Wisconsin[625] in 1879; Indiana[626] in 1884; Kansas[627] in 1887; Nebraska[628] and Colorado[629] in 1893; Nevada[630] in 1896; and favored by the decisions of New Jersey[631] since 1824. Moreover, the Supreme Court of the United States has sanctioned the same doctrine. In Jewell v. Jewell,[632] considered in 1843, opinions on the question were evenly balanced, just as they were in the Queen v. Millis which came before the Lords during the next year; but in 1877, in the case of Meister v. Moore,[633] involving a marriage contracted under the law of Michigan, Justice Strong adopted "as authoritative" Judge Cooley's interpretation rendered two years before.
On the other hand, in a number of states the courts have decided that the common-law marriage is entirely superseded by the statutes, even when these do not contain words of nullity, and sometimes when they are expressed in terms far less "mandatory" than in some instances where the opposite doctrine prevails.[634] In the words of a writer who believes the courts are historically and logically justified in this view, "they affirm that when from a comparative study of the whole course of legislation as well as of the terms of the various statutes, it is the plain intent to make conformity to any statutory formality indispensable to the constitution of marriage, such common law is ipso facto repealed, and a marriage celebrated by mere consent, without this formality, has no validity whatever in law. One such indispensable formality, at least, they find in the intent of the statutes, namely, the presence at the celebration of an authorized third person."[635] First to take this position was Massachusetts in 1810, the year after Kent's opposite decision already cited, when Chief Justice Parsons, in an opinion which has been steadily sustained ever since, but which is not remarkable for historical knowledge, held that "when our ancestors left England, and ever since, it is well known that a lawful [valid?] marriage there must be celebrated before a clergyman in orders;" and hence in Massachusetts, although "not declared void by any statute," a "marriage merely the effect of a mutual engagement between the parties, or solemnized by any one not a justice of the peace or an ordained minister, is not a legal marriage, entitled to the incidents of a marriage duly solemnized."[636] Since 1848 the Massachusetts doctrine has been followed by Vermont.[637] In the same year it was adopted in New Hampshire;[638] but in the absence of more recent decisions the law of that state cannot be regarded as absolutely settled. It was favored in Maine[639] by a decision of 1841, although the informal contract was not then positively rejected by a direct decree. The courts of Connecticut are silent on the question; but the statute declares that all marriages "attempted to be solemnized by any other person" than those authorized by it "shall be void."[640]
Several states of the South have taken a similar stand. Maryland[641] and North Carolina[642] have thus repudiated the common-law agreement, a formal celebration being made essential to a valid marriage. The supreme court of West Virginia has gone farther, holding that not only solemnization, but also license and other prescribed formalities, are requisite. "Our statute," runs a decision of 1887, "has wholly superseded the common law, and in effect, if not in express terms, renders invalid all attempted marriages contracted in this state, which have not been solemnized in compliance with its provisions.... When the terms of the statute are such that they cannot be made effective, to the extent of giving each and all of them some reasonable operation, without interpreting the statutes as mandatory, then such interpretation should be given them."[643] In 1821 the common-law contract was judicially accepted in Kentucky;[644] but by the model statute of 1852—remarkable for clearness and terseness—a "marriage is prohibited and declared void when not solemnized or contracted in the presence of an authorized person or society."[645] Likewise in Mississippi until recently the informal agreement was held sufficient to constitute the parties husband and wife;[646] but since 1892 the statute renders a marriage invalid if contracted or solemnized without a previous license.[647] Moreover, in Porto Rico, by the code of 1902, the authorization and celebration of the contract "according to the forms and solemnities prescribed by law" are requisite for a valid marriage.[648] With these six southern and the four New England commonwealths must be classed five states of the middle and western division. Two of these—Oregon[649] since 1870 and Washington[650] since 1892—have proceeded by judicial decree; and three—California[651] in 1895, Utah[652] in 1898, and New York[653] in 1901—have superseded the common-law agreement by statutes containing the nullifying clause.
All the other states and territories have enacted laws governing the celebration and other preliminaries of marriage; but whether these laws are to be regarded as mandatory or merely directory has not yet been judicially determined. The courts are thus silent in Connecticut and Rhode Island,[654] of the New England group; in Arizona, Indian Territory, New Mexico, Oklahoma, and Virginia, of the southern and southwestern group; in Alaska, Delaware, Hawaii, Idaho, Montana, North Dakota, South Dakota, and Wyoming,[655] of the middle and western division. Of these Delaware, Virginia,[656] and Connecticut would probably reject the common-law doctrine, were the question brought to a judicial test; while it would almost certainly be accepted by the courts of the other twelve states and territories, should the statutes remain as they are. Indeed, in a number of the last-named states, notably in Idaho, Montana, and South Dakota, it is virtually sanctioned by the terms of the statutes themselves.
It appears, then—to summarize the details presented in the foregoing discussion—that twenty-three states and territories have already sanctioned or favored the common-law marriage; while twelve others are soon likely to do so, unless the statutes shall be changed. On the contrary, eighteen commonwealths have repudiated or are inclined to repudiate the informal agreement. Six of these, it should be noted, have liberated themselves by statute; five—Mississippi, California, Utah, New York, and Porto Rico[657]—having done so within the last ten years. This is a fact of vast social importance. From it the reformer may gather new courage. In such legislation, in response to a better-educated popular sentiment, lies the hope of the future: to free American society from the manifold evils which lurk in the doctrine of the common-law marriage. It is, indeed, marvelous that a progressive people with respect to an institution which is the very basis of the social order should so long neglect the function of proper public control. For what, according to its nature, is the common-law marriage? Its possibilities for anarchy are realistically described by Chief Justice Folger, of New York, in 1880, when that state was still exposed to them. "A man and a woman," he declares, "who are competent to marry each other, without going before a minister or magistrate, without the presence of any person as a witness, with no previous public notice given, with no form or ceremony, civil or religious, and with no record or written evidence of the act kept, and merely by words of present contract between them, may take upon themselves the relation of husband and wife, and be bound to themselves, to the state, and to society."[658] Verily this is individualism absolutely unrestrained! It is the simple truth, as already suggested, that in principle the canon law as it existed in Catholic lands before the Council of Trent, and in England until the marriage act of 1753, with a possibility of all of its attendant scandals and hardships, still survives in the United States.[659] The apology of the Middle Ages was found in the sacramental dogma. Matrimony as such, under whatever conditions contracted, was too "holy" to be dissolved or effectively hindered for the ordinary prudential reasons which appeal to the statesman or legislator. Today there is doubtless a lingering tradition of the same false sentiment. Yet the common-law marriage is now supported on two principal grounds. The innocent offspring, we are told, ought not to suffer because the parents have neglected the formalities prescribed by a mere statute. Moreover, to declare an irregular, perhaps a clandestine, union void is to invade the most sacred right of the individual. There is urgent need that the American people should realize the fallacy of such arguments. Far better that the children of a delinquent minority should bear the stain of illegitimacy than that the welfare of the whole social body should be endangered. For the same reason the supposed right of the individual must yield to the higher claims of society. In no part of the whole range of human activity is there such imperative need of state interference and control as in the sphere of the matrimonial relations. In this field as in others we are beginning to see more clearly that the highest individual liberty can be secured only when it is subordinated to the highest social good. It is, however, not merely the public which suffers. "Our common-law marriage fails to protect not only the contracting parties, but also the families to which they belong. Indeed to protect the latter it makes not the least attempt, and in this respect it is far behind the law of Western Europe."[660] As a preliminary to a general reform of our marriage laws as a whole it is earnestly to be desired that every state or territory not already emancipated should enact a statute as clear and decisive as that of Kentucky, Utah, or New York, absolutely repudiating the common-law contract. It is only through legislation that this revolution can be effected. It is not the proper function of the courts to attempt it. It may be that those states which have superseded the common law through judicial interpretation of their statutes have done well. The end has perhaps justified the means. It is quite possible that in those cases it was the intent of the lawmaker to render the statute mandatory. Nevertheless he did not express his intent in the form which has itself become a part of the common law. Chief Justice Parsons and his followers may have been enforcing a "higher law;" but it was a "judge-made" law. History is on the side of Chief Justice Kent and the great number of jurists who have followed him. Moreover, it is evident from the trend of recent decisions that not much more can be expected from the courts. According to the overwhelming weight of juridical opinion, to go farther in this way would be to legislate consciously through the bench. Besides "bench-made" law is always ex post facto. The only practical course is to create or further develop a sound popular sentiment in favor of proper social control of the marital relation; and then to express that sentiment in statutes whose terms are mandatory beyond the possibility of evasion.
b) Resulting character of matrimonial legislation.—The absurd and demoralizing conflict between common-law validity and statutory legality ought first to be abolished, because in large measure it hinders, even frustrates, the effort to develop a thorough and uniform system of matrimonial administration in the United States. This once effected, there will remain plenty of hard work to do. If we consider the details of our legislation, as already analyzed in the sixteenth chapter, we perceive in nearly every department urgent need of reform, often of radical innovation. Almost everywhere there is a want of clearness, certainty, and simplicity; and this defect is all the more harmful because of the lack of uniformity among the different states. Diversity, even conflict, in every branch of state legislation is a burdensome incident of the federal system; and in no branch is the evil more formidable than in the field of marriage and divorce. As hereafter suggested, we need not despair of eventually overcoming it; but from the very nature of the case it may be many years before an effective remedy can generally be applied. In the meantime it is all the more necessary that the laws of each individual state should be made as clear, simple, and efficient as possible, and that every opportunity should be seized to prepare the way for a common matrimonial code for the whole country.
First of all, the statutes relating to the preliminaries of marriage ought to be overhauled. Already during the past century progress has been made. Within the last two decades in particular many reforms in matters of detail have been carried out in various states. Furthermore, in the broad features or outlines of the law throughout the country an approximation to a uniform system has been attained; and this fact may be of great significance when the task of securing absolutely the same law for all the states is earnestly taken in hand. Thus there is practical agreement among the states and territories in requiring a license from a local civil officer before a marriage may be legally celebrated. The dual system of banns or license survives only in Maryland, Georgia, Delaware, and Ohio. All the other states and territories, except Alaska, New Mexico, and South Carolina, where there is no statute governing the subject, with New York and New Jersey, where there is a substitute plan, have each adopted a system of civil license or certificate, the same in its purpose, though varying widely in the forms and procedure prescribed. This is a stride in the direction at once of simplicity and harmony; and besides, for its own sake, it is well to get rid of the ancient device of oral banns, which has proved as unsatisfactory in America as in the Old World. Again, we have developed substantially a common statutory law regarding the manner of entering into the marital relation. Everywhere, except in Maryland and West Virginia, where a religious ceremony is essential to a valid union, the optional civil or religions ceremony, at the pleasure of the persons contracting, is sanctioned by the law. As already seen, this dual system has its roots planted deeply in the history of two centuries. It is clearly entitled to be regarded as the American plan; although since 1836, with important modifications, it has also been accepted in the British Isles. It does not follow, however, that it is the ideal plan. It is too complex; and it is an obstacle in the way of developing the most efficient system of matrimonial administration. It is inconsistent with a proper social control. It will prevent the attainment of the "maximum of simplicity and the maximum of certainty" in matrimonial legislation. It is awkward, thoroughly illogical, to intrust the execution of that part of the law on which publicity and security so much depend to two different classes of persons: the one consisting of civil officers created and wholly under control of the state; the other in its origin, its personnel, and its character completely beyond such control, and only subject to administrative rules and restraints. With this system it will be very difficult to establish a proper standard of special fitness, of special knowledge, such as is highly needful to exact from public servants intrusted with functions of vast social importance. European peoples have reached a wiser solution of the problem in prescribing in all cases without exception, as the prerequisite of a valid marriage, the obligatory celebration before an authorized civil officer, leaving the wedded pair to decide, as wholly a private matter, whether a religious ceremony shall be added.