Reform in the Celebration of Marriage
OF all the institutions of society, marriage is the most fundamental, most far-reaching, and most vital. It preceded society ; it made society possible ; it binds society together. It is the basis of social order and improvement, and the chief support of morality, religion, and law. “ We may justly place to the credit of the institution of marriage,” says Chancellor Kent, “ a great share of the blessings which flow from refinement of manners, the education of children, the sense of justice, and the cultivation of the liberal arts.”
Marriage being thus the source and main-stay of society, in its legal inception the State — the legal representative of society — is most deeply concerned, and should be first considered. This is a fundamental principle in public policy, and it has been universally applied. In early Rome, for example, as the common welfare was believed to require the exclusive maintenance of the clans or families of which the body politic was composed, to all persons outside of these clans the right of legal marriage was denied. So at present, in several of the United States, a marriage between a white person and a negro or mulatto is forbidden on grounds of public policy.
While thus of foremost concern to the State, the celebration of marriage has for the contracting parties an importance equaled in no other event of their lives. It binds them together into a lifelong union, involving their whole material and spiritual welfare. The agreement to marry, which has arisen of their own motion and has been largely under their control, gives place, by the celebration, to a permanent legal status, the rights and duties of which are fixed and regulated in no degree by themselves, but wholly by law. Each acquires rights to the other’s property and the right to the other’s fidelity and society. Thus arises the home, for them fraught with the most sacred associations, the highest hopes, and the most enduring happiness.
If the contracting parties be minors, there is yet a third class immediately interested in the celebration of marriage. Upon parents and legal guardians the law has imposed the duty of providing the support, regulating the conduct, and guarding the interests of children and wards. Hence arises a correlative right to be informed and consulted concerning a matter so deeply affecting that duty. This right is the more clear since the event may involve not merely the hopes and affections of parents, but also the prosperity of the family estate and the honor of the ancestral name.
That in the constitution of matrimony there are these three classes of rights to which protection is due is now generally conceded ; and it is also admitted that such protection must come ultimately from the State as distinguished from the Church, — from municipal law rather than from ecclesiastical regulations. But, having such protection in view, with what immediate aims, by what formalities, and through what agents should the State act, — these are the questions about which there exists much variance in custom and in law between different communities.
It should be borne in mind that in the eye of the law the celebration of marriage is in one aspect the execution of a contract, — the agreement to marry, — and as such is subject to certain legal principles. In the execution of any contract, it is necessary, for the protection of the parties interested, that the fact of their consent be fixed beyond a doubt. How urgent is this necessity in “ the most important of all human transactions ” ! Again, in the execution of a commercial contract, the expedition of business demands that the expression of the parties’ consent shall not be clogged by excessive formality. So, in the constitution of matrimony, the primary importance of fixing the status requires that the forms prescribed be as simple as possible with safety to all concerned.
It is certainty and simplicity, then, at which, first of all, the State should aim in dealing with this subject. In the words of Mr. Boyd Kinnear, an eminent English barrister, the law of the marriage celebration should “ embrace the maximum of simplicity and the maximum of certainty : of simplicity, because it affects every class, and almost every person, the most humble and illiterate as well as the most exalted or learned, and because it has to be known and acted on in the absence not only of legal advice, but often in the absence of even ordinary common-sense counsel ; of certainty, because it affects a contract and social relation the most important that can arise between human beings, — because it affects the foundations of society itself, and influences the fate, it may be the eternal fate, of innumerable individuals.”
Such being the aims of the State, what formalities should it prescribe for their attainment ? It is characteristic of the Anglo-Saxon race to conform their institutions to the progress of society more by the modification of existing forms than by the introduction of new ones. Such has been the course pursued in England in the treatment of this subject. Is a similar method expedient in the United States ? Our predominant common law, as set forth in the preceding number of The Atlantic, does contain the element of simplicity. For what form of celebrating marriage is simpler than the private agreement of the parties ? At the same time, what form is more repugnant to the certainty of the fact of the parties’ consent, and hence is more objectionable for the practice of a civilized community ? In short, certainty is not to be obtained without publicity, and hence the common law must be repealed. The primary principle of the colonial system must be enacted ; that is to say, the interposition of a third person, duly authorized, must be made indispensable to constitute matrimony.
About twenty years ago, a similar course was recommended to Parliament to meet the case of Scotland, where, as in the United States, the mediæval canon law exists. In 1865, a Royal Commission, composed of Baron Chelmsford, Sir William Page Wood, Sir Roundell Palmer, Mr. Travers Twiss, and others, was appointed “ to inquire into and report upon the state and operation of the various laws now in force in the different parts of the United Kingdom of Great Britain and Ireland, with respect to the constitution and proof of the contract of marriage, and the registration and other means of preserving evidence thereof.” Their investigation consumed several years, and included the examination of eminent men from all sections of society and from all parts of the kingdom. Their foremost recommendation was that “ the interchange or declaration of matrimonial consent necessary to constitute a legal marriage should for the future take place, in all parts of the United Kingdom, in the presence of a duly authorized official celebrant or witness ; and that no other mode of constituting marriage should be recognized by law.”
But on this point we need not seek in England a model for the amendment of our law. The example of Kentucky is well worthy of general imitation. In 1852, the legislature of that state expressly repealed the common law by enacting that “ marriage is prohibited and declared void when not solemnized or contracted in the presence of an authorized person or society.” This course is the more to be commended because the formality thus made essential is identical with that at present existing by popular usage and favored by public sentiment.
The fundamental principle being accepted, that in the constitution of marriage the State for the sake of certainty must secure publicity, and to this end must make indispensable the presence of an official celebrant, the question arises, How should this celebrant be selected ? Should this function be restricted either to civil officers or to clergymen, or should it be given to both ? In The Atlantic for February last it was shown that on the Continent, from the middle of the sixteenth century to the close of the eighteenth, custom and law generally restricted to clergymen the office of celebrating marriage ; that during the present century, however, mainly through the influence of the Code Napoléon, this power has been gradually transferred from the Church to the State, and the tendency is to make the constitution of marriage depend solely upon the interposition of the civil officer, leaving subsequent religious rites to the option of the parties. It was also shown that in the British Isles, on the contrary, the legal development being more conservative, the civil solemnization, though equally effective to create the legal bond, did not meet the popular favor accorded to religious rites. In the succeeding number of this magazine, it appeared that in the American colonies the statutory system anticipated in this respect the recent development in the mother country. Except in New England at the earliest period, the power of clergymen to solemnize marriage was distinctly recognized and maintained by the law ; and resort to religious rites, as in England, became the favored usage, and was identified largely with the religious convictions of the people. At the present time, also, probably a large proportion of marriages are solemnized by clergymen. But the common law, as interpreted by the courts, permits the parties, with equal legal effect, to marry themselves ; and hence, practically, the presence of the minister is made superfluous, and the influence of religion is correspondingly weakened. Religious associations, by emphasizing the sanctity and gravity of the marriage rite, exercise a wholesome restraint upon the parties and conduce to public security. In themselves they seem not inconsistent with the attainment of certainty in the legal proceeding. The minister should, therefore, be expressly declared an agent of the State in constituting marriage. It is “ both the wisdom and duty of the State,” said the Royal Commission, above named, “ to associate its legislation on this subject with the religious habits and sentiments of the people, and to obtain as far as possible the religious sanctions for the marriage contract. . . . The objects for which civil legislation ought to provide may be equally well attained when the contract is entered into with the forms of religious solemnization as when these forms are absent, provided the contract itself is in both cases properly guarded and authenticated.”
There is, however, in the community a considerable sentiment that the religious aspect of marriage is by far the most important, and hence that the State should not merely recognize and authorize, but should make indispensable, the agency of the Church in the constitution of marriage. In one state, Maryland, such agency has thus been required by law since 1777. But is such a statute consistent with the enjoyment of freedom of conscience ? It is not generally approved by public policy either in Europe or in the United States. On the contrary, in both the spread of toleration in religion has been accompanied by the adoption of civil forms. On the Continent, only civil forms are recognized by the more important states. But among English-speaking nations, solemnization by the civil officer is made optional. The Royal Commission, indorsing the English rather than the French principle, recommended “ that the official celebrant, or witness of marriage, should henceforth, in all parts of the United Kingdom, be either an authorized minister of religion or an authorized civil officer.”
In the United States, the privilege of resorting to a civil officer for the constitution of matrimony has existed from the first settlements. In early times, outside of New England, it was permitted partly because of the scarcity of ministers. Now it should be allowed in some localities for the same reason, and everywhere to insure liberty of conscience. However desirable religious rites may be for their influence, it would hardly be expedient to impede in the least the formation of so important a civil relation by indissolubly connecting it with religion. Let the good custom of our forefathers be put upon a sure legal basis ; and let the official celebrant (whose presence is to be made necessary) be still a minister or civil officer, duly qualified and authorized according to law.
But it is the qualification and responsibility, rather than the class or rank, of the official celebrant upon which chiefly depend both certainty in the legal proceeding and protection to the interests involved ; and here, unfortunately, is one of the greatest deficiencies of the statutes. To be legally qualified for this office, a minister is very properly required in most states, as formerly in the colonies, to be ordained according to the usage of his denomination ; but only in a few states does he need to present to the civil authorities any proof of such ordination, or to fulfill any other civil prerequisite. Of course, in the constitution of marriage, a clergyman acts under the authority and as the agent, of the State. Is there any reason why he should not submit, like other civil officers, to close scrutiny and proper obligation ? It was the opinion of the Royal Commission upon a similar question in England, that “ such ministers of religion as are in the active exercise of official duties in their several churches and denominations, and occupy positions which make them amenable to public responsibility and to the censure and discipline of their own religious communities, . . . when duly certified and registered, may safely be trusted with the solemnization of marriage.” By the Virginia Act of 1780, “ any ordained minister of the gospel ” was authorized to solemnize marriage, provided he produced before the county court credentials of his ordination and of his good standing in his denomination, took the oath of allegiance to the Commonwealth, and gave bond with two or more sureties “ for the true and lawful performance of his trust.” A similar statute exists at present in Kentucky, West Virginia, and Virginia ; and the principle, at least, is worthy of general acceptance.
Upon this subject of qualification and responsibility the statutes are fully as lax with the civil officer as with the minister. In colonial New England, on the contrary, the control of the State over the civil celebration was comparatively direct and effective. Generally, marriages were celebrated by the magistrate, — the person possessing functions of wide extent and of great dignity. Later, with the spread of population and the development of society, this duty was naturally assigned to the justice of the peace, who, as the arbiter of neighborhood disputes and the chief local representative of the law, held a position of peculiar responsibility in the town. His exercise of this office was usually restricted to his town or county, and was open to public inspection.
During the present century, however, a great change has gradually come over this office. The increase of litigation, consequent upon the growth of population and of wealth, has necessitated a constant modification of the judicial system. In the larger towns and in the cities, most of the functions and dignity formerly attached to the office of justice of the peace has been transferred to courts of more definite powers and jurisdiction. At the same time, the fact that from the earliest period the power of solemnizing marriage has been associated, in the justice or local magistrate, with his judicial capacity seems to have warranted, in the opinion of legislators, the extension of that power to almost any person bearing the title of judge, however slight his duties and importance. Not to mention other examples, in at least seven states this power is given to any court of record, and in nine to “ any judge ” whatever. But, not content with this, in several states the legislatures seem to have deemed even the holding of some public offices, though not usually of judicial trust, a qualification for solemnizing marriage. Thus in five states this privilege falls to any mayor, and in New York to any alderman.
Meanwhile, this legal development has in some states brought about a curious though pernicious result. In Massachusetts, for example, the justice of the peace, so called, has been gradually deprived of his colonial dignity and importance, and now possesses barely more than the shadow of judicial capacity. But the legislature has not yet divested him of the power to administer oaths and to take acknowledgments, — formalities common and often essential in legal and mercantile transactions. For this reason, — as a matter of convenience, — the office is eagerly sought by men practicing law or engaged in business, and they seldom fail to obtain it. The appointments are not limited in number, and are made upon no other qualification or condition than the recommendation of creditable persons.
It happens, however, that besides the relics of colonial dignity above mentioned, there is still another attached to the office of justice of the peace, namely, the power of solemnizing marriage. To be sure, a large proportion of justices of the peace are never called upon to exercise this power ; and if they were, it is likely that they would be ignorant of the proper method of procedure. They did not seek, nor do they wish to use, the office for that purpose. Indeed, one might venture the assertion that many of them are not aware that such a power is incidental to their office, and, if informed of it, would be greatly amused at the absurdity. Nevertheless, there remains the surprising and disgraceful fact that there are in the city of Boston alone over two thousand justices of the peace with absolutely no special qualifications and hardly any responsibility, but with full authority to represent society in the constitution of the most important civil relation, in which both the contracting parties and the State are supremely interested.
But the case of Boston is similar to that of the other cities in the Commonwealth, and this law of Massachusetts is found also in other States of the Union. The development just traced goes far to show that the legislature, while amending the judicial system as required by the growth of wealth and of population, either has greatly neglected or has improperly treated the law of the marriage celebration. In reality and in practice, the law of New York (or rather the common law of the United States) is not much worse in this respect than is the law of Massachusetts ; for while by the former parties may marry themselves, by the latter they need do no more than resort to an almost irresponsible third person.
Of course public convenience or public economy may require that the civil celebrant shall be chosen from the ranks of the regular judicial or administrative officers ; but a man is no more qualified to celebrate marriage solely because he is a judge or other officer than because he is a minister. In both cases, theoretically, the station lends a beneficial influence ; but it cannot insure certainty or security in the legal procedure. To this end it is necessary that the celebration of marriage should be recognized as an office of a primary, not secondary or incidental, nature, and hence should be performed only by persons specially qualified and strictly accountable.
But a strict responsibility in the official celebrant, whether minister or civil officer, is hardly possible unless the exercise of his office is confined to reasonable territorial limits. In the case of the minister, the law widely prevalent in the colonies permitted him to solemnize nuptials, as in the Massachusetts Act of 1695, “ only in the Town where he is settled in the Work of the Ministry.” At present, this law seems to exist nowhere in this country. In ten states marriage may be solemnized by such ministers only as reside within the state, and in two by such only as labor regularly in the state as a minister or missionary. With these exceptions, as far as the law is concerned, a minister resident or settled in Maine may solemnize marriage in Texas, — a degree of confidence reposed by the civil power in no other of its agents. Indeed, it would be difficult to find another instance of such complete renunciation, or rather neglect, of all control.
The case is nearly as bad with reference to the civil officer. By the Massachusetts Act of 1695, just referred to, the justice of the peace was authorized to solemnize marriage “ within his own county only.” In Virginia, a century later, the same limits were fixed for civil officers clothed with this authority. Some such restriction seems to have existed generally in the colonies. At present, in France, the mayor — the regular celebrant — may act only within his commune. Likewise in England, the registrar may officiate only within his district. But in this country only fourteen states limit the exercise of this power in the justice of the peace to the county or district of his appointment or election. Each of the two thousand justices of the peace of Boston may solemnize marriage anywhere within the Commonwealth. Similar laxity exists regarding other magistrates and public officers having this power. An alderman of the city of New York may solemnize marriage anywhere within the state.
While thus the presence, at the final ceremony, of an official celebrant, duly qualified and responsible, is required to insure certainty in the legal procedure, this alone is not sufficient properly to protect either the parties themselves, their respective parents, or society. For the latter there is also necessary some preliminary proceeding, including public notice of the intended event, in a manner both simple and effective. “ It is the duty of the State,” said the Royal Commission, “ to discourage and place obstacles in the way of sudden and clandestine marriages, both for the sake of inducing forethought and deliberation generally in the formation of indissoluble relations, upon which the happiness, usefulness, and morality of life depends ; and also for the special purposes ” of preventing illegal and irregular relations, and “ of enabling parents and guardians to protect minors from improvident and unsuitable connections.”
On the continent of Europe, until within the present century, the usual means of publishing notice was the proclamation of banns by the minister from the pulpit. But le mariage civil obligatoire substituted the publication of notices by the civil officer in the official bulletin ; and the latter mode is superseding the former at a rate corresponding to the spread of the French system. In England, until 1836, publication by banns was the only mode. Since that time the parties are permitted to choose between banns and a publication by the registrar in the official bulletin. A similar option has been recently extended to Scotland, and in some cases to Ireland. In the American colonies, the existence from the beginning of the civil celebration necessitated corresponding provision for publication. In New England, intentions of marriage were published at “ publick Lecture, or Town meeting,” or upon “ the meeting-house door.” In the Southern colonies, as in England at that time, marriages were not usually solemnized “ without license first had . . . or thrice publication of banns ; ” and the same could in general be said of the Middle colonies also. Since the Revolution the ancient practice of proclaiming banns from the pulpit has decreased, and at present it seems to be recognized in the laws of only four states, — Delaware, Georgia, Maryland, and Ohio. Indeed, both in Europe and in the United States, the law is fast embodying as its settled policy the principle stated by Professor Gneist in 1869, that “publicity is no longer secured by the reading in the pulpit of promises of marriage. The State alone, with the concurrence of the press, can secure it.”
In the United States, the method in general use by which the State aims at this publicity is to require parties intending to be married either to obtain a license or to record their intention through a civil officer. This proceeding, to be efficacious and simple, should be conducted solely in the place or places of legal residence of the contracting parties, and by officers authorized also to act at the solemnization. Such is the rule in countries where the matter has received most consideration. But in the United States, regarding both place and officer, much diversity and complexity exist. Outside of New England, the officer is generally the clerk or judge of some county court, — in seven states, of the county in which the solemnization is to take place, and in twelve states, of the county in which the woman resides. But in New England he is the clerk of the city or town, generally where the parties dwell, or (if they do not dwell within the state) where the marriage is to be solemnized. However this may be, the formalities to be observed subsequent to the filing of the application, and prior to the issuing of the license, have been enacted by the various legislatures with so little precision and system that they are quite inadequate to effect their object, — the careful public examination of the parties’ legal qualification for marriage.
In France and in England, however, the provisions regarding these formalities are both definite and systematic. They are worthy of careful consideration in the amendment of our law. The application or notice must contain a full legal description of the parties and of their parents ; and between its filing and the issuing of the certificate a certain time must elapse, during which the notice must be posted in a public place. Thus ample opportunity is given, in the initiatory steps of the proceeding, for public objections to its conclusion. If such objections are made, they must be heard by a competent court before the regular course is resumed. But in most of the United States, not only does the notice contain an insufficient description of the parties, but also the officer is allowed to issue his certificate directly upon the filing of the notice, thus excluding any public objection at the very time when it can be fully and fairly considered. Hence any person having a legal objection to the contemplated marriage must either, as in Maine, anticipate the filing of the notice, or, as in Rhode Island, interrupt the final ceremony. In no other states, save Louisiana, — which is, fortunately, influenced by the French law, — does there appear to be any statutory provision upon this important particular.
The legislation upon the subject of parental consent is equally insufficient. To be sure, there are but few states in which, when the parties are minors, the issuing of the certificate or license is not made dependent upon the personal or written application or consent of parent, relative, master, or guardian. But there is insufficient provision against a misrepresentation of age or a forgery of written consent. In several states, it is at the option of the officer to require of the applicants for a certificate an affidavit or other legal evidence of age ; but in only a few is such requirement made obligatory. In but few states must the written consent be attested or otherwise verified. Quite in contrast is the French rule, that before the final ceremony each party must present to the officer either a certificate of birth or an attested declaration of those who remember the birth, and also an affidavit of the consent of the proper persons.
The inefficiency and inadequacy of the statutes regarding these particulars is the more conspicuous because of an unnecessary and impolitic distribution by the State of its delegated powers. The certificate or license issued by one officer authorizes a solemnization which is generally performed by an officer of a different class. It is, in general, the policy of our law to require the parties to publish their intentions, and to establish their legal qualifications for matrimony, solely through the medium of a civil officer ; and when a religious solemnization is preferred, evidently such officer cannot complete the celebration. But when a civil solemnization is chosen, both public convenience and public policy demand that this final ceremony be performed by an official of the same class as the one by whom the certificate is issued. The present separation of functions not only militates with the primary requisites of simplicity and certainty, but also is inconsistent with economy and responsibility in administration. All formalities that precede either a religious or a civil solemnization, and the civil solemnization itself, should be supervised or conducted by one class of officials. For this purpose, each county in the state should be divided into districts, and over each district there should be placed an officer of the civil power. His duties should be carefully defined, and for the proper and faithful performance thereof he should be made subject to severe statutory penalties. Of course this plan requires that all other civil officers now authorized to issue license or to solemnize marriage — justices of the peace and others — shall be wholly deprived of these powers.
Moreover, to such regular officer would belong also the duty of registration of all facts and proceedings incidental to the celebration. To him the minister, immediately after solemnizing a marriage, should make return thereof in a certain form to be inscribed upon the civil registry, together with the prior facts concerning publication ; and a certified copy of this record should be made prima facie evidence of the fact and time of the constitution of the status. This officer should also be required regularly to transmit to the Secretary of State or to a central bureau a copy of the whole, or of a suitable portion, of the record. Thus there would be a convenient place of resort for public information concerning any marriage celebrated in the state.
At present, if any particulars of the celebration could be selected about which the statutory system (if such it may be called) is especially deficient, one would be that of registration ; and yet there are few parts of the proceeding that more involve the welfare of the parties and of society. Of what avail would it be, if the State by its interposition should secure a proper constitution of marriage, if it should not also guarantee the best possible evidence by which such status could thereafter be established ? In the ownership of an acre of land, a man is fully protected by law, because his purchase of it is evidenced by a written instrument of a prescribed form, recorded according to definite rules by a responsible civil officer. But in the lifelong, all-important relation of marriage, property, happiness, honor itself, are often left, by the inefficiency of the law, to depend solely upon oral or circumstantial evidence.
Nevertheless, a record, though full and authentic, would hardly be sufficient, — especially to identify the parties, — unless it be attested by witnesses present with the official celebrant at the solemnization. In former times, witnesses were required to be present more for the purpose of securing publicity and regularity in the ceremony, — objects for which they are desirable at present also. By the Decrees of Trent two witnesses are required ; by the Code Napoléon, four ; and by English statutes, two. In the United States the last number is prescribed in ten states ; but in many states, apparently, there is no provision whatever on the subject.
Notwithstanding all this inadequacy and complexity, our law of the marriage celebration would still afford considerable protection, were it not for the prevalent laxity in its execution. In every community there is some officer charged with the prosecution of any offense against public morality or order, and a penalty is imposed for such offense proportional to its heinousness. But as a rule, if only a marriage be celebrated by an authorized person, a failure to conform to the other statutory provisions is not usually regarded by the public as a serious offense ; and even where it is so regarded, there is too little responsibility for its prosecution ; and if it were prosecuted, the penalty imposed would be too small to check the recurrence of the offense.
The first step toward a proper execution of the law would seem to be to fix responsibility for prosecution of such offenses and to enact proper penalties for them. But, ultimately, the enforcement of this law, like that of any other, must depend on an enlightened and vigorous public sentiment. For a long time there has been upon this whole subject a strange ignorance and apathy in the community ; and this spirit has been reflected in the acts of the legislature. The statute-books do, indeed, contain many and various provisions concerning the celebration of marriage. But as a rule, they have not arisen from an appreciation of the subject, nor have they been based upon an investigation of the facts. Hence they are without concert or system ; and whatever excellence they may individually contain is largely lost in the general conflict and confusion of the law, and in the separation of powers and lack of responsibility in its administration. Such a condition of the law can hardly be paralleled in our jurisprudence, and that upon the very subject where it may be most mischievous. It certainly does not exist among other leading nations.
Abroad, the civil celebration as a whole — publication, solemnization, and registration — is usually under the supervision or control of a single official, appointed by and held responsible to the general government. His powers and the method of their exercise are clearly defined either by express enactment or by instructions from his superiors. In France, this officer is the mayor, “ whose functions consist in representing the commune in all acts which concern it : in managing its finances, in guarding its interests, and in providing for the local police.” He has also powers belonging to the general administration, and is the local agent of the general government. He therefore possesses great dignity and extensive powers. His duties in the celebration of marriage are set forth in the Code with definiteness and particularity, and for any infringement thereof he may be fined by the court at the suit of the public prosecutor, and at the same time may be sued for damages by any party aggrieved. In England, the official celebrants are the superintendent registrars of the unions, parishes, or districts into which the country is divided. They are appointed under the supervision, and hold their offices at the pleasure, of the registrar-general at London ; and they perform their duties under strict rules issued by the registrar-general with the concurrence of one of her Majesty’s principal secretaries of state.
Although, owing to a difference of social, legal, and political condition, this centralized administration, as well as other foreign principles and forms before recited, may not be wholly accepted in the United States, they all, nevertheless, serve to reveal the deficiencies of our law, and to afford suggestion for its improvement. A complete presentation of such deficiencies has not been attempted in these pages. That belongs not to the essayist, but to the statistician, and doubtless will be contained in the forthcoming report to Congress upon this subject by the National Bureau of Labor Statistics. But of the remedies recommended above, the following is given as a partial summary. For the celebration — the publication, registration, and civil solemnization — of marriage, each county in the state shall be divided into proper districts ; and over each district there shall be a civil officer, solely responsible for the conduct of the office. Every person intending to be married shall file in such office for the district of his or her legal residence an application for a license. The application shall state the name and official residence of the authorized civil officer or minister, within the state, desired by the parties to act at the solemnization, and shall set forth a full legal description of the parties and of their respective parents or guardians ; and it shall be published by the officer in due form for a certain time. Meanwhile, each party shall file in such office a certificate of birth, and, if he or she be a minor, an affidavit of the consent of the proper person. If legal objections to the intended marriage are filed, a hearing upon notice shall at once be given to them by the district officer. At the expiration of the time fixed for publication, if objections have not been filed, or have been withdrawn, or have been disallowed, the district officer shall issue a license for the solemnization of marriage between the persons, and by the civil officer or clergyman, named in the application. If the marriage be not solemnized in accordance with the license within a certain time, the license shall be ipso facto void. Every solemnization shall take place in the presence of at least two witnesses besides the official celebrant, and a record thereof in regular form, made at the same time, shall be signed by the parties, the celebrant, and the witnesses. If the person solemnizing the marriage be other than the one or ones who issued the licenses, the former shall at once transmit to the latter a certified copy of this record, to be annexed to the prior records of publication.
To secure the execution of such a law, severe penalties should be imposed for its violation by any of the persons concerned ; and it should be a part of the official duty of each representative of the state participating in the celebration to make complaint to the district attorney or other public prosecutor of any such violation occurring within his own knowledge. Above all, let it be enacted in unequivocal terms that no marriage shall be valid unless it shall have been solemnized by a third person, or a society acting, or believed by either of the parties to be acting, as the authorized representative of the state.
This plan, as well as the other recommendations in this article, are presented mainly as an embodiment of desirable principles. The ultimate forms which those principles should take in legislation must be devised by the legislator in the course of a detailed consideration of the subject. The law in its present condition is a disgrace to a civilized community ; nay, more, it is a constant menace to society. Its radical and systematic amendment should at once be undertaken by the legislature ; and in this work, the country that is teaching Europe how to realize a government of the people may learn somewhat from Europe how to preserve the integrity of the family.
Frank Gaylord Cook.