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*88 riage. (e)This facility in forming the * matrimonial con
tract by the common and ecclesiastical law, exists in those American states where the common law has not been altered on this point, or remains in force, as in New York, South Carolina, and Kentucky. The New York Revised Statutes had, indeed, introduced and prescribed regulations for the due solemnization and proof of marriage. Marriages were directed to be solemnized only by a minister of the gospel or priest, or by a mayor, recorder, or alderman of the cities, or judge of the county courts, or a justice of the peace. Marriage, when solemnized by a minister, was to be according to the forms of his church ; and when by a
(e) i Salk. 119. 4 Burr. 2057. i Blacks. 632. Doug. 171. The King v. Stockland, Burr. Sett. Cases, 509. Wilkinson v. Payne, 4 Term Rep. 468. Cunningham v. Cunningham, 2 Dow, 432. M'Adam v. Walker, 1 Dow, 148. Fenton v. Reed, 4 Johns. 52. Jackson v. Claw, 18 Johns. 346. Hantz v. Sealy, 6 Binney, 405. Doe v. Fleming, 12 J. B. Moore, 500. Rose v. Clark, 8 Paige, 574. Lord Kenyon said, in Read v. Passer, 1 Esp. Rep. 213, that a marriage might be inferred from circumstances mentioned in the text, without a register, as well since as before the Marriage Act of 26 Geo. II. Leader v. Barry, 1 Esp. Rep. 353, S. P. It would seem to have been a question under the ecclesiastical law, prior to the English statute of 26 Geo. II., whether the contract of marriage, though followed by cohabitation, was not essentially imperfect, unless it was solemnized by the intervention of a priest. There are many cases and dicta pro and con, in the English books, which relate to a validity of civil rights of marriage not so solemnized. They are collected in 2 Roper on Husband and Wife, Addenda, by Jacob, 445-475, and in Shelford on Marriage and Divorce, 35-38. Thus it was said that a marriage not duly solemnized would not entitle the wife to dower, (Perkins, sec. 194, 306,) nor entitle the husband to administer on his wife's estate. Haydon v. Gould, in the court of delegates, 1 Salk. 119. The intervention of a person in holy orders seems to have been assumed in the cases as a material circumstance. The King v. The Inhabitants of Brampton, 10 East, 282. Lautour v. Teesdale, 8 Taunt. 830. The intervention of a priest was required by the Church of Rome in a decree of the Council of Trent. Before Pope Innocent III., marriage was totally a civil contract. The intervention of a priest to solemnize the contract was merely juris positivi ; and these private contracts of marriage, as Blackstone observes, (1 Comm. 439,) were “valid marriages to many purposes.” In North Carolina, in the case of The State v. Samuel, 2 Dev. & Bat. 177, 181, it was held, that a contract of marriage in verbis de presenti, though followed by cohabitation, was not a legal marriage in that state, unless celebrated by some person in a sacred office, or entered into before some one in a public station and judicial trust. Consequently the marriage of slaves, as usually existing, consisting of cohabitation merely by the permission of the owners, did not constitute the legal relation of husband and wife.
6 A conditional promise of marriage, while the parties are living meretriciously, is not such a promise per verba de futuro as by a continuance of the relation constitutes a mar. riage. Cunningham v. Burdell, 4 Bradf. (N. Y.) 424.
magistrate, without any particular form, except that the parties must solemnly declare that they take each other as husband and wife, and there must be at least one witness present, besides the minister or magistrate. The minister or magistrate was required to ascertain the names and residence of the parties, and their competency as to age, and the name and residence of the witness or witnesses, not exceeding two, if more than one be present, and to satisfy himself of the identity of the parties. It was made a misdemeanor, knowingly to marry persons, when either is under the age of legal consent, or under any legal impediment, or wants understanding. The minister or magistrate was to furnish, on request, to either party, a certificate of the marriage, and of the above facts rendering it lawful. The certificate was to be filed with the city or town clerk where the marriage was had, or where either of the parties resided, within six months, and a due entry thereof made. (a) These regulations were found to be so inconvenient that they had scarcely gone into operation when the legal efficacy of them was destroyed, and the loose doctrine of the common law restored by the statute of 20th April, 1830, declaring that the solemnization of marriage need not * be in the manner above prescribed, and that all lawful marriages, contracted in the manner in use before the Revised Statutes, should be as valid as if the article containing those regulations had not been passed.(a)
By the Scotch law, a previous publication of the intention of the parties is required, though a clandestine marriage without
(a) New York Revised Statutes, vol. ii. pp. 139, 140, sec. 8–19.
(a) This would appear to amount to a complete repeal of the above regulations, as a matter of binding obligation; and yet the same Act of the 20th of April, 1830, means to retain those prescriptions, for it makes several amendments to the original regulations, and which are incorporated into the abstract of them given in the text. The regulations amount, therefore, only to legislative recommendation and advice. They are not laws, because they do not require obedience!! The statutes of several of the states, as Massachusetts, Connecticut, &c., direct that the justice or minister, before whom marriages shall be solemnized, shall keep a record thereof, and return the same to the town clerk to be recorded. So the statute of New York, of April 28th, 1847, c. 152, has again provided for the registry of births, marriages, and deaths within the state.
The effect of the repealing and amendatory act referred to was, while it permitted marriages to be contracted in the manner before used, to enable parties marrying according to the modes pointed out in the statute, to obtain and perpetuate evidence of their marriage.
such public notice is still valid in law, and only subjects the parties to certain penalties. (6) It has been the usual practice with nations, to prescribe certain forms and ceremonies, and generally of a religious nature, as being requisite to accompany the celebration of the marriage solemnity.(c) In the Roman Catholic Church, marriage is elevated to the dignity of a sacrament, and clothed with religious solemnities. But in France, under the revolutionary constitution of 1791, marriage was declared to be regarded in law as a mere civil contract. The same principle was adopted in the Code Napoleon; and now, says Toullier, (d) the law separates the civil contract entirely from the sacrament of marriage, and does not attend to the laws of the church and the nuptial benediction, which bind only the conscience of the faithful. The statute of 26 George II. required all marriages in England, without special license to the contrary, to be solemnized with
publication of bans in a parish church or public chapel. * In most cases, the observance of the positive municipal
regulations was made necessary to the validity of the marriage ; but the painful consequences of such a doctrine recommended a less severe discipline, in respect to the parties themselves and their issue. The statute of 3 George IV. relaxed the rigor of the former statute in some particulars, but that statute was repealed by the 4 Geo. IV. c. 76, which restored much of the former severity, and now forms, with some subsequent variations, the matrimonial law of England. By that statute the bands of matrimony are to be published in the parish church or chapel upon three preceding Sundays, and the marriage is to be solemnized in the same place. The marriage of a minor against the consent of parents, is not absolutely void ;(a) but a wilful marriage, made knowingly by both parties, without due publication of bans, or elsewhere than in a parish church or chapel, unless under special license, or celebrated by a person not in holy orders, renders it void. (6) This last statute underwent some modifica
(b) Ersk. Inst. 91, 93. M’Douall's Inst. vol. i. p. 112.
(c) Selden's Uxor Ebraica, b. 2, c. 1, lib. 2, passim. 2 Potter's Greek Antiq. 279, 283. Dr. Taylor's Elem. 275, 278. Jewish Antiquities by Th. Lewis, vol. iii. pp. 293–304.
(d) Droit Civil Français, tom. i. No. 494. (a) See ante, p. 85, n. b.
(6) Dormer v. Williams, 1 Curteis, 870. Rex v. Tibshelf, 1 B. & Ad. 196. Rex v. Wroxton, 4 B. & Ad. 640. Stat. Geo. IV. c. 76, sec. 22. Both parties must be cog. nizant of the fraud under this statute. Clowes v. Clowes, Arches Court of Canterbury,1842.
tions by the Act of 6 and 7 Wm. IV. c. 85, relative to marriages not solemnized according to the rites of the Church of England, and for relief as to marriage of dissenters from the established church. (c)
In the states of Maine, New Hampshire, and Massachusetts, it is requisite, by statute, to a valid marriage, that it be made by publication of bans, and in the presence and with the assent of a magis trate or a stated or ordained minister of the gospel; and if the parties be under the age of twenty-one years if a male, or eighteen if a female, the magistrate or minister is not to solemnize the marriage, without the consent of the parent or guardian, if any there be. But though a marriage without publication of bans, and without the consent of the parents or guardians, will expose the officer to a penalty for breach of the statute, yet a marriage so had would seem to be lawful and binding, provided there was the presence and assent of a magistrate or minister, and the marriage be in other respects lawful, and be consummated with a belief of its validity. (d) The statute law of Connecticut (e) requires
(c) The provisions alluded to in the text are more specially stated as follows: By the Marriage Act of 4 Geo. IV. c. 76, a marriage is absolutely null and void if any person shall knowingly and wilfully intermarry, in any other place than a church, or such public chapel wherein bans may be lawfully published (unless by special license); or shall knowingly or wilfully intermarry without due publication of bans, or license from a person having authority to grant the same, first obtained ; or shall knowingly and wilfully consent to, or acquiesce in, the solemnization of such marriage by any person not being in holy orders. But the subsequent statutes of 6 and 7 Wm. IV. c. 85, and c. 88, 7 Wm. IV. and i Vict. c. 22, and 3 and 4 Vict. c. 92, have so far modified these provisions as to allow marriages not only by special license, by the surrogate's license, and by bans, but also by the superintendent's registrars certificate without license, or by his certificate with license. It is declared further, that the statutos do not extend to marriages by British subjects taking place out of England, and are valid if made in the form requisite by the law of the place where the solemnization is had, and the law is understood to be the same, though the parties eloped from England on purpose to evade the English law of marriage.
(d) Milford v. Worcester, 7 Mass. 48. Londonderry v. Chester, 2 N. Hamp. 268. Mass. Genl. Sts. ch. 106, $ 20. Ligonia v. Buxton, 2 Greenl. 102. By the early laws of the colony of New Jersey, marriage was to be preceded by publication of bans, and the omission subjected the party in default to a penalty. Leaming and Spicer's Collections, p. 235. In Indiana, marriages are required to be solemnized by a clergyman, judge, or justice, under the authority of a license from the clerk of the circuit court of the county; and if the parties be under the ages of 21 and 12, the license must not be granted, without the consont of the parents or guardians. R. Statutes of Indiana, 1838, p. 410.
(e) Statutes of Connecticut, 1838, p. 412.
1 Parton o. Hervey, 1 Gray, 119. All the notice now required in Massachusetts is the registration of the intention of marriage in the office of the clerk, &c. of the town. The clerk
the marriage to be celebrated by a clergyman or magistrate, and requires the previous publication of the intention of marriage, and the consent of parents, if the parties be under age, and a certificate of the marriage to be recorded, and it inflicts a penalty on those who disobey the regulation ; but it is the opinion of the learned author of the Treatise on the Domestic Relations, ($) that the marriage, if made according to the common law, without observing any of those statute regulations, would still be
a valid marriage. This, I should infer, from the case of * 91
Wyckoff v. Bogg8, (a) to be the rule in New Jersey, where
the marriage contract is under similar legislative regulations. It is the doctrine judicially declared in New Hampshire, Pennsylvania, and Kentucky, and by statute in Alabama and Vermont; and the marriage is held valid as to the parties, though it be not solemnized in form, according to the requisitions of their statute law. (6) There are probably statutory provisions of a similar import in other states of the Union ; and wherever they do not exist and specially apply, the contract is, everywhere in this country, (except in Louisiana,) under the government of the English common law. (c)
(f) Reeves's Domestic Relations, pp. 196, 200, 290.
(6) 2 N. Hamp. 268. 3 A. K. Marsh. 370. 2 Watts Penn. 1. Toulmin's Dig. of the Law of Alabama, p. 576. Revised Statutes of Vermont, 1839, p. 318. In Pennsylvania, the statute imposes a penalty on a magistrate or minister for marrying a minor or an apprentice, without the parent's or master's consent.
(c) The statutory regulation of marriage in Ohio is essentially the same. Statutes of Ohio, 1831. The statute in that state regulating marriages provides that parties of the ages of 18 and 14 may marry; but if the male be under 21, and the female under 18, the previous consent of the parent or guardian is requisite ; and there must also be a publication of bans on two several days of public worship, in the presence of the congregation, or else a license from the clerk of the county court where the female resides; and the person who marries the parties, without such publication and license, forfeits a heavy penalty. In North Carolina, a succession of statutes, in 1715, 1741, 1766, and 1778, regulated marriages, and Tennessee adopted the statute law of her parent state ; and it has been adjudged, that if a marriage be celebrated without the license prescribed by statute, or, in its absence, without a lawful certificate of the publication of the bans of marriage, it is an illegal and void marriage, at least in respect to a public prosecution for bigamy. Bashaw v. Tennessee, 1 Yerger, 177. To marry persons without a license from
gives a certificate, which is to be delivered to the minister or magistrate. Act of Mass. 1850, c. 121. And see statute of New Hampshire, passed July 14, 1854.
1 Hargroves v. Thompson, 81 Miss. (2 George,) 211.