The adoption of the Constitution did not create a new government: it unified and strengthened an old one. The colonies that became the States had gone through a long period of preparatory discipline. The hardship of settlement, the meddlesomeness of the mother country, the strain and stimulus of war, and the reign of sectional feeling and interests had successively worked to develop in them both a genius for self-government and the means and method of its employment. To be sure, some new names were assumed, some new forms shaped; but the substance beneath and within them, — the principles of government and the institutions of society, — could be traced far into the past.
This continuity of growth, while existing in the political system, was to be observed particularly in the social and legal institutions, including the celebration of marriage. In the preceding number of The Atlantic, it was shown that the colonists, at one point discarding the common law, and at another gradually superseding it, built up for themselves, by custom and by statute, a system adapted to the various phases of society and of religion that existed among them. That system was the optional civil celebration. It enjoined the observance of the formalities of publication or license, parental consent and registration; but these formalities it did not in general make indispensable. The one thing everywhere, without which the marriage tie could not be constituted, was a solemnization in the presence of an authorized third person. Of course, this system, largely moulded by circumstances and dictated by convenience, — varying somewhat in each section with its social and religious development, — was complex, crude, and inadequate. It seemed devised more to facilitate and encourage nuptials than to guard and sanctify them. That it failed to protect individuals from haste and improvidence, and did not give to society security and certainty in the formation of the marriage relation, is abundantly evidenced by the constant concern of the legislatures as well as by the terms of their statutes. Nevertheless, its central principle—the interposition and supervision of the state through its agents, civil or religious—was salutary; it was a sound basis for future improvement as required by the progress of society.
The colonial system of celebration was continued in the States, and for many years, under the Constitution, remained essentially unchanged. The Territories that became States adopted its features, and it seemed firmly established as part of our legal economy. But in the early part of this century there arose in the courts a discussion regarding the nature of our common law, and the relation of that law to our statute law in governing the celebration of marriage, — a discussion which since then has constantly increased, and has gradually brought about a revolution unparalleled in the history of our subject. The other great changes brought some needed reform. The Council of Trent emphasized the religious aspect of the celebration; the Independent movement in England and the American colonies asserted its property as a personal, though civil right and the French Revolution declared its paramount importance as an institution of society. But this revolution, in the United States, has brought no reform. On the contrary, it has destroyed the colonial system, and has introduced into our law much of the insecurity, the irreverence, the license, of the Middle Ages. Our common law to-day is the canon law that existed prior to the Council of Trent.
The discussion arose in this wise. Cases came before the courts, in which it was attempted to establish the validity of marriages celebrated not by the statutory formalities, but simply by the parties’ private agreement to be husband and wife; and the ground taken was that such marriages were valid by the primary or common law. It was argued that the mediæval canon law of the Continent (which to constitute matrimony required merely the consent of the parties,) became the English common law, and, brought as such to this country by the English colonists, was our primary, fundamental, or common law; that, as a general principle, a statute is not effective to repeal the common law unless it indicates such intent in express terms, and hence, as the statutes prescribing formalities did not expressly declare void a marriage celebrated without them, such informal celebration (the mere agreement of the parties) constituted marriage at common law.
Chancellor Kent was, it seems, the first to present this view; and his learning and reputation contributed to its prominence and circulation. In 1809, as chief-justice of New York, he held that “no formal solemnization of marriage was requisite. A contract of marriage made per verba de prœsenti amounts to an actual marriage, and is as valid as if made in facie ecciesœ.” This statement was an obiter dictum; and, as usually interpreted, it would seem hardly to have been borne out by the English cases cited. It was based on no American authority. In fact, this doctrine was novel to American courts. It was also inconsistent with the statutory system that had come down from colonial times, — especially with that system as it existed in New York prior to the Revolution. Yet this case went far to settle the law of New York, and has been cited throughout this country with the spread, and in support, of the doctrine which it introduced. In 1814, the Supreme Court of Pennsylvania concurred with that of New York. “Marriage,” it declared, “was a civil contract, which might be completed by any words in the present time, without regard to form;” and “it was not absolutely necessary to be done before a clergyman or a magistrate.” In 1816, Kent was substantially followed by Tapping Reeve, formerly chief-justice of Connecticut, in his important treatise on the law of the domestic relations. In 1820, Judge Levi Woodbury, of New Hampshire, later a justice of the United States Supreme Court, citing Kent, declared that “the form of the contract of marriage, as a mere civil transaction, is well enough established. … If the contract be per verba de præsenti, the marriage is complete.” So in the following year, upon the same authority, Chief-Justice Boyle, of Kentucky, held that “neither the statute of Indiana nor that of this State avoids a marriage not celebrated according to its provisions.”
In 1826, Chancellor Kent, in his Commentaries, stating his doctrine more fully, laid the foundation upon which mainly the later authorities rest: “No peculiar ceremonies are requisite by the common law to the valid celebration of marriage. The consent of the parties is all that is required. …This is the doctrine of the common law, and also of the canon law, which governed marriages in England prior to the Marriage Act [Lord Hardwicke’s Act, 1753] of 26 George II.; and the canon law is also the general law throughout Europe, except where it has been altered by the local municipal law.” In 1832, the Kent doctrine was accepted as law by the Court of Appeals of South Carolina. In 1842, its spread was accelerated through its acceptance by Professor Simon Greenleaf in his learned treatise, The Law of Evidence. His statement is lucid and authoritative as touching the relation of the statute to the common law. “Marriage,” he declared, “is a civil contract, jure gentium, to the validity of which the consent of parties able to contract is all that is required by natural or public law. … And though in most, if not all, the United States there are statutes regulating the celebration of the marriage rites, and inflicting penalties on all who disobey the regulations, yet it is generally considered that, in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be absolutely void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage, regularly made according to the common law, without observing the statute regulations, would still be a valid marriage.” This doctrine was adjudged to be the law of Louisiana in 1846; for this State being under the civil law, a marriage celebrated per verba de præsenti was held valid there according to the canon law, — the Decrees of Trent, though adopted by Spain, not having been applied to the colony of Louisiana. California accepted the Kent doctrine in 1852. In the latter year, also, Joel Prentiss Bishop, in his valuable treatise on Marriage and Divorce, after an exhaustive review of the authorities, concurred with Kent, Reeve, and Greenleaf regarding the nature of our common law and its relation to legislative enactment.
The consensus of so many of our ablest writers and judges caused, in the succeeding years, the rapid spread of their view. It was adopted as the law of Mississippi in 1856, of Georgia in 1860, of Ohio in 1861, of Alabama in 1869, and of Illinois in 1873. In 1875, Judge Cooley held it to be the law of Michigan, thus lending to its support his great scholarship and reputation. He even declared it to be “the settled doctrine of the American courts, the few cases of dissent, or apparent dissent, being borne down by the great weight of authority in favor of the rule as we have stated it.” In 1876 it was accepted by the Supreme Courts of Iowa and of Missouri, and in 1877 by the Supreme Court of Minnesota. In the latter year, also, the Supreme Court of the United States took the same position. Before that, in 1843, upon the question whether mere consent made marriage at common law, Kent’s opinion being before them, this court was equally divided, and hence no decision was reached. But in 1877, when the question again came before them, the court seemed deeply impressed by the evident drift of the law, and by the great weight of authority in favor of the Kent doctrine. In the course of the opinion, delivered by Justice Strong, it was said: “A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license or publication of banns, or be attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present consent.” This decision of the Supreme Court has had great influence upon the state courts. The Kent doctrine was accepted in 1879 by the Supreme Court of Wisconsin, in 1880 by the Supreme Court of Florida, in 1884 by the United States Circuit Court, district of Rhode Island, in 1885 by the Supreme Court of Indiana, and in 1887 by the Supreme Court of Kansas.
On the other hand, from the first there has been a small but respectable body of judges and writers who have constantly and consistently questioned the Kent doctrine, and opposed its acceptance. Not only do they deem it pernicious to society, but they also attack the historical premises upon which the argument in its support is based. They deny that the mediæval canon law of the Continent ever became the English common law, and hence that mere consent was ever sufficient in England, though it was on the Continent, to constitute complete marriage. They assert that by the English common law mere consent could constitute only an inchoate union, — indissoluble, to be sure, but requiring, to compel its completion, the interposition of the ecclesiastical court; that this ecclesiastical jurisdiction, being inconsistent with the spirit and the nature of the colonial institutions, was never introduced here as part of our common law, and its function has never been assumed by any statutory substitute; and hence that such inchoate unions in this country—there being no means of compelling their completion—have never possessed the attributes of complete matrimony. Furthermore, assuming that by our common law such marriages were ever valid, they affirm that where, 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.
This side of the question was also fortunate in having for its earliest advocate a jurist of distinguished learning, ability, and reputation. In 1810, the year after Kent presented his view, Theophilus Parsons, then chief-justice of Massachusetts, delivered an opinion upon the validity of a marriage celebrated by the exchange of consent between the parties, but without also the concurrence of a minister or magistrate required by the statute. He stated first his opinion of the common law: “When our ancestors left England, and ever since, it is well known that a lawful marriage there must be celebrated before a clergyman in orders.” Then, after reviewing the legislation of the colony and the commonwealth, he held that the mere agreement of the parties did not constitute “a lawful marriage pursuant to the 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.” Finally, he points out an apparent absurdity in the Kent doctrine: “A marriage engagement of this kind is not declared void by any statute. But we cannot thence conclude that it is recognized as valid, unless we render in a great measure nugatory all the statute regulations on this subject.” This decision was of great importance; for it went far toward settling the law in Massachusetts, and afforded considerable resistance to the spread of the Kent doctrine.
In 1829, the Supreme Court of Tennessee went to the extent of holding that a review of their legislation manifested an intent to make indispensable not only a ceremony before an authorized third person, but also the publication of banns or the obtaining of a license, if not the observance of the other statutory formalities. This decision has been at least once reaffirmed and thrice questioned, but not directly overruled. Hence the law in this State seems unsettled. In North Carolina, also, though in a more moderate form, the Parsons view was early adopted. It has never been seriously questioned, and it seems to be settled law. It was there held, in 1836, that by constant usage and from the earliest period of legislation it had been required as “an essential requisite of a legal marriage that it should either be celebrated by some person in a sacred office. or be entered into before some one in a public station and judicial trust.” In 1848, two New England States, Vermont and New Hampshire, took strong ground in favor of the Parsons doctrine. In the former, Judge Redfleld, a distinguished writer and jurist, overruling an earlier decision to the contrary, declared that the Kent doctrine “could hardly be regarded as law in this State without virtually repealing our statute upon that subject.” So in New Hampshire, Chief-Justice Gilchrist distinctly repudiated that doctrine, discarding Judge Woodbury’s opinion, given above, as a mere obiter dictum. In neither State, since 1848, has this question directly arisen.
In 1853, this side of the question was reinforced and ably expounded by Theophilus Parsons the younger, Dane Professor of Law in Harvard University, in his book, The Law of Contracts. To the same effect, the Maryland Court of Appeals gave a unanimous and decisive opinion in 1872, emphasizing the argument from the popular custom and the absence of ecclesiastical courts: “We have no tribunal, as in England, clothed with power and jurisdiction to enforce the solemnization of marriages between parties contracting per verba de præsenti. Further, there is nothing in the law of this State apart from the common law of England which renders such contracts valid without solemnization. … There never has been a time in the history of the State, whether before its independence of Great Britain or since, when some ceremony or celebration was not deemed necessary to a valid marriage. It is true the Act contains no express prohibition or declaration of absolute nullity of marriages contracted per verba de præsenti; but … the practice and custom of the people of the State have been so universally in conformity with what would appear to have been the policy and requirement of the law that such custom has acquired the force and sanction of law.” If in Massachusetts the question needed further discussion, this was amply afforded in an opinion, by Chief-Justice Gray in 1879, remarkable, like the Maryland case, for exhaustive research and forcible argument. Affirming that “in Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the colony, province, and commonwealth,” he proceeded to review “the history of the legislation upon the subject, the whole of which, whether repealed or unrepealed, is, by a familiar rule, to be considered in ascertaining the intention of the legislature.” With Chief-Justice Parsons he held that “our statutes, by necessary implication, prohibited persons from solemnizing their own marriages by any form of mutual engagement.” He then made an authoritative statement of the law: “It has always been assumed in this commonwealth … that (except in the single case of Quakers or Friends …) a marriage which is shown not to have been solemnized before any third person, acting, or believed by either of the parties to be acting, as a magistrate or minister, is not lawful or valid for any purpose.”
It should be observed that these cases simply bold that it was the intent of the statutes to make some solemnization essential; but there has long been in some Southern courts a tendency to go further, and (like the Tennessee decision of 1829 above referred to) to find in the statutes an intent to make the constitution of marriage dependent upon a strict compliance with the statutory forms, — not merely solemnization, but also license, and other formalities. The most recent decision in favor of the Parsons view not only confirms that tendency, but also shows how irreconcilable are the two doctrines when carried to their extremes. In June, 1887, the Supreme Court of Appeals of West Virginia ruled as follows: “Our statute 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 statutes 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 to them.”
Thus, by judicial inference from the statutes, in Massachusetts, New Hampshire, Vermont, Maryland, North Carolina, Tennessee, and West Virginia, a ceremony before some duly authorized officer, civil or religious, seems essential to constitute marriage. But in one State, Kentucky, such formality is made necessary by the express terms of the statute; for the decision of Chief-Justice Boyle in 1820, given above, was superseded in 1852 by a positive statutory enactment that “marriage is prohibited and declared void when not solemnized or contracted in the presence of an authorized person or society.”
Moreover, the Parsons view of the requisites of a valid celebration by the English common law prior to Lord Hardwicke’s Act, at the settlement of the American colonies, is supported by the highest English authorities. In 1843, this question was argued before the House of Lords with such learning and ability as is rarely to be found in legal history. The Lords being equally divided, it was held by the unanimous opinion of the judges, delivered by Lord Chief-Justice Tindal, that “by the law of England, as it existed at the time of the passing of the Marriage Act, a contract of marriage per verba de præsenti was a contract indissoluble between the parties themselves, affording to either of the contracting parties, by application to the spiritual court, the power of compelling the solemnization of an actual marriage. … It was essential to the constitution of a full and complete marriage … that both modes of obligation should exist together; … that, besides the civil contract, that is, the contract per verba de præsenti, … there has at all times been also a religious ceremony.”
In the following States the question whether mere consent can constitute marriage has not yet been decided: Arkansas, Colorado, Connecticut, Delaware, Maine, Nebraska, Nevada, New Jersey, Oregon, Rhode Island, Texas, and Virginia. Were it directly to arise, it is probable from the inclination of the courts that the Parsons doctrine would be accepted in Delaware, Maine, Texas and Virginia, and the Kent doctrine in the rest.
To sum up: in the Eastern States, the Parsons doctrine is the prevailing law, being held in Massachusetts, New Hampshire, and Vermont, favored in Maine, and not yet rejected in Connecticut and Rhode Island; in the Middle States, the Kent doctrine is the prevailing law, being held in New York and Pennsylvania, favored in New Jersey, and not yet directly repudiated in Delaware; in the Southern States, neither doctrine predominates, — Kent being followed in South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana, and Parsons being followed in Maryland, North Carolina, Kentucky, Tennessee, and West Virginia, and favored in Texas and Virginia; and in the Western States, the Territories, and the District of Columbia, the Kent doctrine prevails without dissent, being held in ten States and in the District, and being favored in the remaining States and the Territories. In short, in eighteen States and in the District it is already accepted as law that mere consent may constitute marriage; to the same effect it will probably soon be decided in eight States more and in all the Territories; while apart from Kentucky, in only three States of the Union, namely, Maryland, Massachusetts, and West Virginia, are there decisions so recent and decisive as to establish beyond a doubt that more than mere consent is essential. In Massachusetts, Maryland, West Virginia, and Kentucky alone, there is not the least doubt that to constitute marriage the interposition of an authorized third person is indispensable.
In view of these facts, the Kent doctrine may be said to be the prevailing common law; and its recent explicit statement in the State of its origin would be accepted as law in the most of the United States. “A man and a woman,” said Chief-Justice Folger, of New York, in 1880, “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 as such; and if after that the marriage is denied,” proof of the subsequent conduct of the parties married, their “acknowledgment and recognition of each other to friends and acquaintances and the public as such, and the general reputation thereof will enable a court to presume that there was in the beginning an actual and bona fide marriage.”
Such being the predominant common law, one practical result is that, in the words of Judge Redfield, “it is clearly a dispensation with all the requisitions of the statutes upon the subject.” During the colonial period care was constantly taken to secure the observance of the formalities of publication or license, parental consent, registration, and solemnization. At first some colonies seem to have made essential a strict conformity to these statutes. But later it was sought to enforce their observance rather by imposing penalties for their infringement than by making void marriages contracted without them. To this course, however, there was one uniform exception. The exchange of matrimonial consent in the presence of an authorized third person was still indispensable. Under the Constitution, also, these statutory forms were retained, together with penalties for their infringement. At the same time, as formerly, an informal marriage seems not to have been void if only it were solemnized before the magistrate or minister authorized by law. Even in recent legislation, these and other forms are prescribed with such minuteness and comprehensiveness as almost to warrant the inference that their strict observance was intended to be essential. But their terms do not, as a rule, expressly nullify a marriage informally celebrated; and hence the courts refuse to consider their intent. With the general acceptance of the Kent doctrine the last safeguard—the interposition of the State through its agents, civil or religious—has been broken down; and the colonial system, of which this was the distinguishing and vital feature, is finally and essentially overthrown. The present statutory regulations being generally adjudged only “legislative recommendation and advice,” their further consideration is without the scope of this article.
As another consequence, the general acceptance of the Kent doctrine has carried our law back to the Middle Ages. Ours is the Roman law of Justinian minus the element of parental consent. In Rome, the bridegroom went openly in the daytime to the house of the bride’s father, and with his consent led her away to his own home. In most of the United States, he may go by stealth at night, and carry her off without the knowledge or consent of her parents. If, during the proceeding, the runaways seriously and voluntarily agree eo instanti to be husband and wife, ipso facto they become such in law. As the Roman law passed into the church or canon law, the element of parental consent was dropped, and the consent of the parties alone was retained. Hence our law is the same as the mediæval canon law. The reform of the latter, through the Council of Trent, in the direction of religious sanctions gradually spread over the most of Western Europe, and prepared the way for the modern development of civil forms. But in the course of this development the current of law in the New World parted from that in the Old. In Europe, especially upon the Continent, the marriage celebration began to be studied particularly in its aspect as creating a social status, — in its relation and consequences to society. In this respect its careful definition and regulation began to be recognized as fundamental to the welfare of the State. Consequently, the State assumed full and primary control: it inquired first of all what safeguards were essential to protect the celebration as a social bulwark (with but little regard to the restriction or limitation that might result to the individual); and at the entrance of the legal status it placed strict, comprehensive, many of them indispensable, formalities, looking to the protection first of the community, and then of the families to which the contracting parties belonged.
In America, on the other hand, the marriage celebration has been treated more in its aspect as the exercise of a personal right, — the right to marry. Its relation and consequences to society have been comparatively neglected. To be sure, it has never been authoritatively denied that society could, for its own protection, prescribe formalities through which alone this right should legally be exercised; and in the earliest period of our history the State did, it seems, make such forms indispensable. But the Puritans firmly implanted in our social soil “the strict Protestant principle that marriage is purely a civil right,” and there has always been a tendency to interpret strictly all legislative restriction or limitation upon the exercise of that right. During the present century this tendency has rapidly increased with the spread, and as a consequence, of the Kent doctrine; and it found its fullest expression in 1877 in the decision of the Supreme Court of the United States, that unless a statute shall expressly declare void a marriage not celebrated according to its provisions, “such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present consent.” In other words, in this country it is judicially declared that the act of entering the marriage state is, in its legal aspect, primarily the execution or conclusion of the parties’ contract or engagement to marry; that they have, a right at common law to execute this contract by their private agreement presently to be husband and wife; that society has the paramount right through legislation to make indispensable to this execution such additional formalities as it deems necessary to its own welfare, but by the statutes as at present worded has not yet exercised such superior right, and has merely given “legislative recommendation and advice;” and hence that the function of the courts, as the law now stands, is simply to interpret the will and intent of the contracting parties; and if, in any case, a time is found when these bona fide expressed to each other an intent presently to be husband and wife, to declare that at that time they became such in law.
This, then, is the extreme to which our law of the marriage celebration has been tending, — indeed, has already reached, — the assertion of the rights of the individual at the expense of the rights of society. But these respective interests are not essentially conflicting. They are reconcilable, and also interdependent. It is a truism that what injures society injures each of its members. It is of the highest importance to the welfare of the contracting parties, and they have a right to demand, that in the legal form by which they enter the marriage relation adequate consideration and protection shall be given to the rights of society as well as of themselves. But, in fact, is this attitude of the law, toward the individual, as much an assertion of right as a denial of protection? True, the rights of the two persons—husband and wife—receive equal consideration as regards the insistence that before either shall be confirmed judicially in the title of spouse a contract, duly executed by each, shall be established. But what slender protection is this, when bare circumstances are sufficient to establish such contract, causing momentous consequences to the parties, as well as to their respective families and to society! Moreover, where in life, if not in forming the marriage relation, does the individual need sobering, warning, and restraint? And to this end what but the arm of the law is adequate? Yet what barrier does this scanty legal requirement afford against haste, indiscretion, and improvidence? Indeed, at this point the courts not only refuse all protection, but also disclaim all responsibility. “For the policy of the law,” said a learned judge, “we are not responsible. It is for the legislature to change it, should it see fit to do so.”
But, our common law 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. In The Atlantic for February of the current year were described the main features of the French system of celebrating marriage (le rnariage civil obligatoire), and the rapid spread of that system over Continental Europe. According to the French civil code, “a marriage contracted without the consent of the father and mother, of the ascendants [des ascendants], or of the family council, in cases where such consent was necessary, may be impeached” for nullity. So according to the system of optional civil celebration now existing in England, also described in the article above referred to, “in case such parents or guardians, or one of them, shall openly and publicly declare or cause to be declared in the church or chapel where the banns shall be so published, at the time of such publication, his, her, or their dissent to such marriage, such publication of banns shall be absolutely void.” If the marriage is to be celebrated by Episcopal rites, but upon license, and not upon banns, as in the preceding case, or by civil forms upon the registrar’s certificate or license, such license or certificate cannot be granted until each party that is under the age of twenty-one years, and has not previously been married, shall take oath that the consent of the proper persons has been obtained.
Indeed, with regard to the protection of the families to which the contracting parties belong, our law would seem to be inferior not only to that of leading civilized nations, but to that even of our savage Indian tribes. For as to this element of parental consent, in ruling upon the existence of a marriage our courts apparently make not the least inquiry. But among some of the American Indians, the consent of the bride’s parents, at least, seems to be the foremost requisite to the marriage celebration. By the Indian custom, after the bride’s parents have signified their consent by accepting the bridegroom’s presents and sending the bride to him to be his wife, then the marriage state is constituted.
While our law is thus deficient in protecting the parties and their respective families, even more noticeable is its total failure to protect society; and in this respect, also, — in dealing with the marriage celebration as creating a social status, a family, an integral part of society, — the United States are far behind the leading nations of Europe. In the French civil code, under the head Of Petitions for Nullity of Marriage, it is declared: “Every marriage not publicly contracted, and not celebrated before the competent public officer, may be impeached by the married parties themselves, by the father and mother, by the ascendants, and by all those who have an actual and existing interest therein, as well as by the public prosecutor.” So as to legal evidence of marriage, in striking contrast to Judge Folger’s statement above, is the provision of the French code that “no person shall be at liberty to claim the title of spouse and the civil consequences of marriage unless upon the production of an act of celebration inscribed upon the register of the civil power;” and “the actual existence of marriage shall not discharge the pretended spouses, who shall respectively claim to be such, from producing the act of celebration of marriage before the officer of the civil power.”
Under the English system, the interests of society are guarded with equal care. In the case of a celebration by Episcopal rites, “if any persons shall knowingly and willfully intermarry in any other place than a church, or such public chapel where banns may lawfully be published, unless by special license as aforesaid, or … without the publication of banns or license from a person having authority to grant the same, or shall knowingly and willfully consent to or acquiesce in the solemnization of such marriage by any person not being in holy orders, the marriages of such persons shall be null and void to all intents and purposes whatsoever.” In a celebration by civil forms, it is provided that if any persons shall knowingly and willfully intermarry in any place other than the church, or other place specified in the notice and certificate, or without due notice to the superintendent registrar, or without certificate of notice duly issued, or without license in case license is necessary, or in the absence of a registrar or superintendent registrar where the presence is necessary, the marriage of such persons shall be null and void.
Thus, under these systems, a marriage cannot be constituted without the observance of the formalities specified, and the intent of the legislature is expressed in such terms as to avoid any misinterpretation by the courts. Whether these forms afford a proper freedom to the individual, whether they are suited to our needs and conditions, social and legal, is not here under discussion. But it is evident that the marriage celebration as it touches society, while carefully guarded abroad, is shamefully neglected in the United States.
Yet this is a time in many respects critical in our history. In the earliest period, when population was small, scattered, and agricultural, when society was simple, frugal, and conservative, respect for law and conformity to civil regulations were almost universal. Moreover, as settlers of the same race and faith usually dwelt together, there was unanimity of sentiment in the protection of the common interest and the maintenance of social order. Hence the statutory forms for the celebration of marriage were generally observed. Though not all essential, the impartiality with which they were enforced spread abroad the salutary impression that they were equally indispensable to constitute matrimony.
Now, this is a great, a rapidly growing nation. There exists the widest diversity of race, religion, and sentiments. Population is congregating in cities. Labor, forsaking the fields, is crowding into factories and tenements. In the shops, in the factories, in nearly every occupation, at great odds and under peculiar temptations, women compete with men in the selfish, exacting struggle for preferment, for daily bread. Industrial struggle and discontent and social evils are rife in the community. In view of these facts, are we fortifying our social institutions, and strengthening the foundations of social order? And the family, — the unit and the source of society, — are we guarding its dignity and confirming its approaches by the sanctities of religion and the safeguards of law? Nay, our courts are forsaking, not protecting, are tearing down, not building up, “the very basis of the whole fabric of civilized society.” For the knowledge is rapidly spreading from the highest courts of this country that in forming the marriage relation there is no need of magistrate or minister, or of any formality whatever. “It is singular,” said Chief-Justice Gilchrist, of New Hampshire, “that the most important of all human contracts, on which the rights and duties of the whole community depend, requires less formality for its validity than a conveyance of an acre of land, a policy of insurance, or the agreements which the statute of frauds requires should be in writing.” What wonder, then, that the disregard of the “legislative recommendation and advice” is constantly increasing, and the evil of clandestine marriages and secret unions, by destroying the integrity of the family, is sapping the foundations of society! Can the courts deny an easy termination to the relation to which they permit so easy an entrance?
“The contract of marriage is the most important of all human transactions;” yet, the form and circumstances of its execution being left to the will and caprice of the parties, its existence may be involved in the utmost uncertainty and obscurity. “Whether the relation of husband and wife lawfully exists never should be left uncertain.” These are the words of Chancellor Kent; and yet it is a corollary of the doctrine which he introduced that the existence of this contract, when judicially called in question, may be established merely by evidence of the subsequent conduct of the parties and of their reputation in the community.
But it may be said that, in fact, secrecy and uncertainty are rare in forming the marriage relation, because custom and public sentiment are as a rule able to secure the observance of civil or religious forms. This assertion, even if admitted to be true, is not pertinent. For the law must be shaped so as to control, not those who follow, but those who disregard, custom and public sentiment. “The system of irregular marriage now permitted by the law in Scotland,” says the report of the Royal Commission on the Laws of Marriage, “appears to us to be irreconcilable with the principle that, in a contract of this importance, the law should aim at the attainment of the greatest possible degree of certainty. To whatever extent its operation may be narrowed or corrected by the sentiments and habits of the people, it seems to us undeniable that it opens the door to much doubt and uncertainty.”
By the law of nature, marriage may be constituted by the mutual present consent of competent persons, without the addition of any formality. Such is our prevailing unwritten or common law to-day. Hence upon this matter of vital and universal concern the United States has the minimum of civil regulation and requirement, — the law of nature as it exists among savage tribes, and as it was in the Middle Ages, the darkest period of modern times.
But in the United States this law exists not only at a critical period, but also at critical points. The above summary of States discloses the fact that the Kent doctrine is spreading without dissent throughout our Western States and our Territories. In many, if not in most, of these, society is still in its formative stage. Its constructive, healthful forces are already severely taxed in their struggle toward order, law, morality, and religion. As in all communities, society in the West must centre about the family; and upon the fate of the latter the fate of the former must rest. What a risk, then, is run, while the courts disclaim, and the legislatures disregard, all responsibility!
Another significant and startling fact is that this is the law also in localities possessing the largest negro population, — in South Carolina, Georgia, and all the Gulf States except Texas. Even in the last it is not yet judicially rejected. The worst effects of slavery upon the negro were not material, but intellectual and moral. Since the war, his material condition has been rapidly improving. Has his social condition made equal progress? The responsibility of the community for its weaker classes is generally recognized. How can it be better discharged than by a speedy and adequate amendment of the law of the celebration of marriage?
But it is a fact still more grave and portentous, revealed by the summary above, that in our great centres of population, in nearly all our great cities, the legal status of marriage may be constituted simply by a private agreement between competent persons. New York, Philadelphia, Brooklyn, Chicago, Cincinnati, St. Louis, New Orleans, and San Francisco are all situated in States that adhere to the Kent doctrine. Indeed, in only two cities of the larger class in the United States, namely Boston and Baltimore, would anything more than such agreement be necessary; and even in them, apparently, nothing additional except a ratification of the agreement before a third person duly authorized. Moreover, the population congested in these cities is largely, in some mainly, foreign born; and the swelling tide of immigration bears to us, unfortunately, not the protective, conservative spirit displayed abroad toward the marriage celebration, but the social evils that fester and threaten in Europe. Much is said of the imminent danger to the State through the political corruption of the cities; and of their social condition a vivid though limited impression was received from the recent anarchist disturbances. Though their actual condition is not and cannot be described, sufficient is known to make their reclamation a work of immediate necessity. To be sure, society cannot be reformed by act of legislature. But a law should embody the truths of experience and should express the better sentiment of the community; in both respects our law of the celebration of marriage is shamefully deficient, and can be rectified only by legislation. Whether the evil has resulted from the blunders of legislatures or from the misinterpretations of courts is not at present the chief concern. The evil exists; the remedy is clear. In theory, the legislature makes, and the courts interpret, the law. In this case, the courts have so interpreted the law that it must be made over by the legislature.
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