[1375]TheAnn. Code of Miss.(1892), 677 ff., is silent as to bond.[1376]In Missouri, failure to keep a record or solemnization without license is a misdemeanor. The transgressor must pay a fine of not exceeding $500, and in addition he is liable to a civil action by the parent or other person to whom "services" are due, to recover not more than $500:Laws(1881), 161;Rev. Stat.(1889), II, 1606;ibid.(1899), I, 1037. In Alabama the fine is $1,000, one-half to the state and one-half to the person suing:Code(1896), I, 829; in North Carolina, solemnization without license or failure to make return is a misdemeanor, subject to a fine of $200, payable to anyone who sues:Code(1883), I, 691, 692; in Kentucky, a fine of not more than $1,000, or imprisonment from one to twelve months, or both:Stat.(1894), 766; in Arkansas, a high misdemeanor and a fine of not less than $100:Digest(1894), 1127; in Tennessee, a misdemeanor and a fine of $500:Code(1896), 1040-41; in Georgia, a fine of $500:Code(1896), II, 223; in Virginia and West Virginia, forfeiture of bond:Code of Va.(1887), 557;Code of W. Va.(1891), 608; in Maryland, a fine of $100 to $500:Laws(1894), 124; in Texas, a misdemeanor and a fine of $50 to $500: Act of June 5, 1900:Gen. Laws, 307. In the District of Columbia for marriage without banns or license each of the parties and the person solemnizing are liable to a fine of 500 pounds current money:Comp. Stat.(1894), 272;Moore,Code, 266.[1377]Arkansas and Indian Territory have a peculiar provision. The person obtaining a license is required to report "the same to the office of the clerk of the county court within 60 days from the date of such license; and if the same be duly executed and officially signed by some person authorized by law to solemnize marriage," the bond of the person so applying for the license shall be null and void, otherwise of full force:Digest(1894), 1129;Ann. Stat. of Ind. Ter.(1899), 510.[1378]Return is made to the judge issuing the license in Porto Rico; to the proper officer in the county where the marriage is celebrated in Missouri, Mississippi, and New Mexico; in all other cases, in the county where the woman resides.[1379]The Virginia law requires the clerk to deliver to the person entitled the license and also a certificate containing the names of the parties, date of the proposed marriage, etc. The person solemnizing is to return the license and the clerk's certificate, together with his own certificate of the time and place of the marriage:Code(1887), 556.[1380]This is the form of indorsement required by the Tennessee law: "I solemnized the rite of matrimony between the above (or within) named parties, on the —— day of ——, 18—."—Code(1896), 1039.[1381]Comp. Stat.(1894), 274, 273;Moore,Code, 267.[1382]Comp. Stat.(1894), 273.[1383]Ann. Code of Miss.(1892), 678.[1384]Rev. Stat. of Mo.(1889), II, 1605:ibid.(1899), I, 1037.[1385]Code of Va.(1887), 557;Code of W. Va.(1891), 608;ibid.(1900), 656, 657.[1386]Code of Md.(1888), I, 975, 976:Laws of Mo.(1895), 222;Moore,Code of D. C.(1902), 267:Rev. Stat. and Codes of Porto Rico(1902), 810.[1387]Digest of Ark.(1894), 1129.[1388]Code of Ala.(1897), I, 828;Ann. Code of Miss.(1892), 678.[1389]Except apparently in Tennessee.[1390]Act of Feb. 3, 1900:Acts(1899-1900), 283, 284.[1391]In West Virginia "the registration of births, marriages, and deaths of white and colored shall be kept separate and distinct."—Code(1900), 659.Cf.Ky. Gen. Stat.(1887), 204;Digest of Ark.(1894), 320, 321;Code of Va.(1887), 130, 558.For the entire discussion of matrimonial administration in these states, as above given in subsec.c), compareCode of Ala.(1897), I, 827 ff.;Rev. Stat. of Ariz.(1887), 371, 372;Digest of Ark.(1894), 1126 ff.;Rev. Stat. of Fla.(1892), 679 ff.;Code of Ga.(1896), II, 221 ff.;Kentucky Stat.(1894), 765, 766;Rev. Civil Code of La.(1888), 60 ff.;Code of Md.(1888), I, 975 ff.;Ann. Code of Miss.(1892), 677, 678;Rev. Stat. of Mo.(1899), I, 1035 ff.;Comp. Laws of N. M.(1897), 403 ff.;Code of N. C.(1883), I, 690-92;Code of Tenn.(1884), 609-11;Gen. Laws of Tex.(1891), 96;Rev. Civil Stat. of Tex.(1888), I, 877, 878;Code of Va.(1887), 555-60;Acts(1900), 283, 284;Code of W. Va.(1900), 654 ff., 934; alsoActs of Leg.(1887), chap. 64;Ann. Stat. of Ind. Ter.(1899), 507 ff.;Session Laws of Oklahoma(1897), 208 ff.;Comp. Stat. of D. C.(1894), 270-75.[1392]In this section the laws of the following twenty-five districts and states are considered: Alaska, California, Colorado, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Utah, Washington, Wisconsin, and Wyoming.[1393]Act of April 9, 1813:Laws of New York(1813), II, 201, 202.[1394]Rev. Stat., Passed 1827-28(Albany, 1829), II, 139, 140.[1395]A false statement of either person is punishable as perjury:Laws(1873), chap. 25, pp. 19, 20; also inRev. Stat.(1889), IV, 2597.[1396]To the leader of the Society for Ethical Culture in the city of New York and the justices and the judges of all courts of record:Laws(1888), chap. 78, pp. 122, 123, superseding an amendment toRev. Stat.(1829) authorized byLaws(1887), chap. 77, pp. 89, 90, andLaws(1877), chap. 430;Rev. Stat.(1889), "supplement" in IV, 2596, 2597.[1397]Laws(1887), chap. 77, p. 90; also inRev. Stat.(1889), IV, 2598.[1398]Laws of N. Y.(1901), II, 933-35.[1399]Act of May 18, 1892:Rev. Stat.(supplemental volume, 1892), V, 3742.[1400]Laws of the State of N. J.(1800), 158, 159.[1401]Pub. Laws(1882), 203; retained inGen. Stat. of N. J.(1896), II, 2005. See for earlier acts amendedPub. Laws(1877), 168.[1402]A justice of the peace may solemnize a marriage out of the county for which he is commissioned: Pearsonv.Howey, 6Halsted,N. J. Reports, 12.[1403]Act of June 13, 1890:Pub. Laws(1890), 439;Gen. Stat.(1896), II, 2006.[1404]Pub. Laws(1889), 139;Rev. Stat.(1896), II, 2005.[1405]Laws(1885), No. 115, sec. 1.[1406]Rodebaughv.Sanks (1833), 2Watts, 9; Fulkersonv.Day (1881), 15Phila. Reports, 638. The provision of 1701 requiring the justice to subscribe the publication (or certificate) is not obsolete: Helffensteinv.Thomas (1835), 5Rawle,Reports, 209.[1407]Above, chap. xii, sec. iii.[1408]Act of April 10:Laws of the Gen. Assembly(1849), 549; retained inPepper and Lewis,Digest(1896), II, 2879.[1409]Act of Jan. 29, 1790:Laws of the State of Del.(1797), II, 972, 973.[1410]Rev. Stat. of Del.(1874), 473; also inRev. Stat.(of 1852, as amended to 1893), 594. By the act of Feb. 25:Laws of Del.(1875), 260, the mayor of Newcastle was granted the same power, but it seems not to be continued in the present law.[1411]On the significance of the settlement of Marietta, and the influence of the middle states and provinces, seeHoward,Local Const. Hist., I, 408, 411, 387,passim.[1412]Act of 1788:Chase,Stat. of Ohio and the Northwestern Ter., I, 101, 102.[1413]Act of Aug. 1, 1792:Chase,op. cit., I, 126.[1414]After 1810, at any rate, it is the county court of common pleas:Chase,op. cit., I, 672 (1810); II, 1211 (1822), 1407 (1824);Swan,Stat. of Ohio(1853), 569-71.[1415]Act of April 4, 1803, repealing the two preceding laws:Chase,op. cit., I, 354, 355.[1416]Ann. Rev. Stat. of Ohio(1897), II, 3016.[1417]The act of June 11, 1822:Chase,op. cit., II, 1211, requires the minister to produce his license to the clerk of the county court of common pleas, who shall "enter the name of such minister upon record as a minister of the gospel duly authorized to solemnize marriage within the state, and shall note the county from which said license" was issued. At present the license must be presented to the county court of probate.[1418]Ann. Stat. of Ohio(1897), II, 3017;cf.Wright,Report, 56, 57.[1419]Laws of the State of Ind.(1897), 129 (act of March 4, 1897).[1420]Act of May 30:Laws(1881), 112; retained inHurd,Rev. Stat.(1898), 1068;cf.Rev. Stat.(1845), 343.[1421]Act of Aug. 2, 1805:Laws of the Ter. of Mich.(1871-84), I, 30 (from the "Woodward Code"): repeated in the "Cass Code" (1816):ibid., I, 202, 203.[1422]Act of 1820:Laws of the Ter., I, 646, 647.[1423]Act of April 12, 1827:Laws of the Ter., II, 412-14.[1424]Act of May 31, 1832:Laws of the Ter., III, 914, 915.[1425]Act of July 31:Laws(1873), 20; also inHowell,Gen. Stat.(1882), II, 1619, 1620. It is expressly provided that marriage may be solemnized on Sunday:ibid., I, sec. 2015; and in certain extreme cases the county judge of probate may perform the ceremony: see the acts of 1897 and 1899, referred to in subsec.c) below.[1426]But if the marriage among Quakers "does not take place in such meeting, such certificate shall be signed by the parties, and at least six witnesses present, and filed for record" with the county clerk:Gen. Stat. of Minn.(1894), I, 1266; the same inibid.(1866), 408; and nearly the same inibid.(1851), 271, 272.[1427]The basis of the Wisconsin law of solemnization may be found in theStat.(1838-39), 139, 140, giving authority to justices of the peace in their counties, to judges and commissioners of the supreme court, and to ordained ministers; and containing the provision regarding the filing of credentials with the clerk of the district court. See alsoRev. Stat.(1849), 391-93, andibid.(1858), 616-18; including the same provisions regarding celebration asAnn. Stat.(1889), I, 1354-56, except that the present authority for court commissioners in the counties is conferred by act of March 13, 1871:Gen. Laws, 99.The Minnesota Law inRev. Stat. of the Ter.(1851), 270-72, is practically the same regarding the celebration as inGen. Stat. of the State(1866), 406, except the provisions in the latter regarding oath and credentials; and the law of 1866 is retained inWenzell and Lane,Gen. Stat.(1894), I, 1264-66, except that the provisions for solemnization by the superintendent of the deaf and dumb appear inLaws(1885), chap. 38, p. 47. Licentiates are also required to take out a certificate:Gen. Laws(1901), 285.[1428]The justice of the peace is not expressly given authority by the Oregon law; but in effect he is authorized by the general clause allowing "any judicial officer" to act within his proper jurisdiction:Codes and Stat.(1902), II, 1682.[1429]Deering,Codes and Stat. of Cal.(1886), II, 25, 26;Rev. Stat. of Idaho(1887), 302;Mills,Ann. Stat. of Col.(1891), II, 1681.[1430]The solemnizer is required to ascertain the "name and place of residence of the witness, or two witnesses, if more than one is present":Ann. Stat. of S. D.(1899), II, 1022.[1431]Witnesses are mentioned in the form of return to be made by the solemnizer:Gen. Stat. of N. J.(1896), II, 2006:Deering,Codes and Stat. of Cal., II, 26, 27.[1432]Wright,Report, 57.[1433]On witnesses and the form of ceremony seeDeering,Codes and Stat. of Cal.(1886), II, 26 (form);Rev. Stat. of Idaho(1887), 302;Howell,Gen. Stat. of Mich.(1882-90), II, 1619, 3602;Gen. Stat. of Minn.(1894), I, 1265;ibid.(1866), 407;Rev. Stat. of Minn.(1851), 271;Comp. Codes and Stat. of Mont.(1895), 477;Comp. Stat. of Neb.(1899), 757;Comp. Laws of Nev.(1900), 113;Rev. Stat. of N. Y.(1889), IV, 2597; same inibid.(1827-28), 139, 140;Codes and Gen. Laws of Ore.(1892), II, 1319; same inGen. Laws(1862), 86:Ann. Codes and Stat. of Wash.(1897), I, 1175, 1176;Rev. Stat. of Wyo.(1899), 791;Rev. Stat. of Wis.(1849), 392; also inAnn. Stat. of Wis.(1889), I, 1355.[1434]Cf.Wright,Report, 56.[1435]Sharonv.Sharon, 67Cal.(1885), 185 ff.; 75Cal.(1888), 1-78; 79Cal.(1889), 633-703; 84Cal.(1890), 424 ff. For other cases of "contract" marriages under the code of 1873, see Kellyv.Murphy, 70Cal.(1887), 560; Kilburnv.Kilburn, 89Cal.(1891), 46; Peoplev.Beevers, 99Cal.(1893), 286; Toonv.Huberty, 104Cal.(1894), 260; Peoplev.Lehman, 104Cal.(1894), 631; Hinckleyv.Ayres, 105Cal.(1895), 357. From 1849 to 1873 common-law marriages were good in California: see Grahamv.Bennett, 2Cal.(1852), 503; Lettersv.Cady, 10Cal.(1858), 530; Casev.Case, 17Cal.(1861), 598; Peoplev.Anderson, 26Cal.(1864), 130; estate of Charles Beverson, 47Cal.(1874), 621; estate of McCausland, 52Cal.(1878), 568;in reBriswalter, 72Cal.(1887), 107; Whitev.White, 82Cal.(1890), 427. The facts in the four cases last mentioned arose before 1873.[1436]Deering,Codes and Stat. of Cal.(1886), II, 18, 19, 20, 27; amended by act of March 26, 1895:Stat. and Amendments to the Codes(1895), 121. Compare the present law of South Dakota:Ann. Stat.(1899), II, 1018, 1022;Rev. Codes of S. D.(1903), 596; and that of Montana:Comp. Codes and Stat.(1895), 475, 477, 478, which in the definition declares that consent "must be followed by a solemnization, or by a mutual and public assumption of the marital relation." In the use of the word "public" the present law of Montana differs from that of California previous to 1895. Formerly the laws of Idaho and California were identical; but now the provision for declaration is omitted from those of Idaho, although the prescribed celebration is not essential to a valid marriage.Cf.Comp. and Rev. Laws of Idaho(1875), 642, 645;Rev. Stat.(1887), 301.[1437]Want of authority to solemnize does not avoid a marriage: Statev.Brecht, 41Minn., 50, 54; 42N. W. Rep., 602; Martinv.Ryan, 2Pinney,Wis. Reports, 24.[1438]For unauthorized solemnization and the penalty seeRev. Stat. of Idaho(1887), 303, 761: a misdemeanor punished by confinement in the county jail not exceeding six months, or a fine of not more than $300, or both;Laws of Ind.(1897), 129 (March 4);Rev. Stat.(1896), I, sec. 2148: a fine of $50 to $500, to which may be added imprisonment in the county jail for from ten days to three months;Howell,Gen. Stat. of Mich.(1883), II, 1620: a misdemeanor punishable by imprisonment in the county jail of not more than one year, or a fine of $50 to $500, or both;Gen. Stat. of Minn.(1894), I, 1266: a misdemeanor, with not over one year's imprisonment, or a fine of not exceeding $500, or both;Comp. Codes and Stat. of Mont.(1895), 477;Comp. Stat. of Neb.(1899), 757: a misdemeanor, with not more than one year in jail, or a fine not to exceed $500;Comp. Laws of Nev.(1900), 114: a fine of not more than $500, or imprisonment till paid;Codes and Gen. Laws of Ore.(1892), II, 1320-22; I, 967: not more than one year in jail, or a fine of $100 to $500; and the same penalty for illegal solemnization and for illegally issuing a license by the clerk;Rev. Stat. of Utah(1898), 331;Laws(1888), 90: not exceeding three years in the state prison, and the same penalty for false personation of parent or guardian, or for forging a certificate of consent;Ann. Code of Wash.(1897), I, 1175, 1178;Ann. Stat. of Wis.(1889), I, 1356: not exceeding one year in jail, or a fine of not more than $500, and the same for illegal solemnization, making false certificate, or for false personation;Rev. Stat. of Wyo.(1899), 791, 792: a misdemeanor, and the same penalty as in Wisconsin for unauthorized solemnization, which is prescribed also for false certificate or false record by the clerk;Ann. Rev. Stat. of Ohio(1897), II, 3017: imprisonment for six months, or a fine of $500, or both;Laws of N. D.(1890), 278: a misdemeanor with fine of $100 to $500 and costs, or imprisonment in the county jail for from three months to one year.[1439]Amendments to the Civil Code(1895), chap. 68.[1440]Rev. Stat. of Idaho(1887), 302;Comp. Codes and Stat. of Mont.(1895), 476;Stat. of S. D.(1899), II, 1020.[1441]Code of Iowa(1897), 1124; same inibid.(1860), 428.Cf. ibid.(1851), secs. 1474, 1475. Thus the common-law contract is good: see Blanchardv.Lambert, 43Ia. Reports, 228.[1442]Horner,Rev. Stat. of Ind.(1896), II, sec. 5330;Burns,Ann. Stat.(1901), III, 705.[1443]Mills,Ann. Stat. of Col.(1891), II, 1680. TheGen. Laws of Col.(1877), 613, show the exigencies of pioneer life in the provision that "all marriages which have been solemnized in this state, whether by any president or judge of any mining district, elected under and acting by the laws thereof," shall be valid. So in Oregon by an act of Jan. 17, 1854 (Stat. of Ore., 494), marriages contracted, with the consent of the parties, "when their residence is remote from any person duly authorized to solemnize such marriage, in any other manner than is prescribed, shall be valid; Provided that no legal impediment shall exist thereto; such contracts shall be made in writing duly attested, and shall be recorded in the office of the recorder of deeds of the proper county, within sixty days."[1444]Carmichaelv.State, 12Ohio Reports, 553.[1445]On the definition of marriage see Smithv.Smith, 17N. Y. Rep., 76; and on marriage as a question of status, Sewallv.Sewall, 122Mass., 156; Watkinsv.Watkins, 135Mass., 84.[1446]"Marriage is a civil contract, requiring the consent of the parties capable of entering into other contracts, except as herein otherwise noted."—Code of Iowa(1897), 1123;cf. ibid.(1851), sec. 1464;ibid.(1873), sec. 2186.[1447]"Marriage, so far as its validity in law is concerned, shall continue in this state a civil contract, to which the consent of parties capable in law of contracting, shall be essential."—Rev. Stat. of N. Y.(1827-28), II, 138;cf. ibid.(1889), IV, 2595.[1448]"Mutual promises to marry in the future, though made by parties competent to contract, and followed by cohabitation as husband and wife, is not, in itself, a valid marriage."—Duncanv.Duncan, 10Ohio Reports, 181.[1449]Rev. Stat. of Idaho(1887), 302;Deering,Codes and Stat. of Cal.(1886), II, sec. 62, p. 24: act of March 30, 1874,Amendments(1873-74), 185.[1450]TheAnn. Codes and Stat. of Wash.(1897), I, 1174, fixes the age when marriage may be contracted at twenty-one for males and eighteen for females; but elsewhere provision is made for written consent of parent or guardian before license may be issued to persons below these ages respectively:ibid., I, 1177.[1451]It is provided by theRev. Code of Del.(1874), chap. 75, sec. 1, "that a divorce may be granted in case the parties were, when married, below the ages specified (eighteen and sixteen), and did not voluntarily ratify the marriage after arriving at those ages;" and this is retained inRev. Stat.(1893), 596.Cf.Wright,Report, 30.[1452]From 1864 to the act of Feb. 7, 1889, in Idaho, the ages of consent were respectively eighteen and sixteen for males and females; but in the last-named year eighteen was fixed as the age for both sexes:Laws(1863-64), 613:Gen. Laws(1889), 40.[1453]Below the ages of sixteen and fourteen in Iowa "marriage is a nullity or not, at the option of the minor, made known at any time before he or she is six months older than said ages."—Wright,Report, 30; seeCode of Iowa(1897), 1123;ibid.(1873), sec. 2186.[1454]North Dakota shows a retrogression. By theRev. Code(1895), 608, the ages of consent to marriage are sixteen and thirteen: the same by the act of March 20, 1890:Laws, 276; which act had been superseded by that of March 9, 1891,Laws, 228, 229, which is in turn repealed by the act of 1895. Still earlier the laws of Dakota Territory had fixed the ages at eighteen and fifteen respectively:Code of Dakota(1883), sec. 36, p. 743; at sixteen and fourteen on May 7, 1862:Gen. Laws(1862), 390; and at fourteen and thirteen in 1866:Civil Code(1865-66), 11. By this last act the marriage of a woman under fourteen might be annulled, if contracted without consent of parent or guardian, and not followed by cohabitation, nor ratified after the girl attained that age.[1455]Formerly the ages in Utah were fourteen and twelve:Laws(1888), 88-91; they were fixed at sixteen and fourteen respectively for males and females by the act of March 11, 1897:Laws, 40.[1456]Solemnization against law as to age and parental consent does not invalidate: Partonv.Hervey, 1Gray, 119, 122; Holtzv.Dick, 42Ohio Reports, 791. In Kansas, 1859-67, the ages were twenty-one for males and eighteen for females:Webb,Gen. Stat.(1897), II, 939, note.[1457]In Oregon a license may be issued for the marriage of a minor without such consent, when there is no parent or guardian resident in the state, if the female has lived in the county where the license is applied for during six months:Codes and Gen. Laws(1892), II, 1321;Codes and Stat.(1902), II, 1684.[1458]Laws(1797), II, 974.[1459]Rev. Stat. of Del.(1853), as amended (1893), 594. This provision is now obsolete, though retained in the statutes.[1460]A marriage with a step-parent or parent-in-law is forbidden in Delaware, Iowa, Michigan, New Jersey, and Washington; apparently also in Pennsylvania. In the latter state marriages within the degrees of affinity, forbidden by the act of March 31,Laws(1860), 394, were legalized by the act of April 6, 1868;Laws of the Gen. Assem., 67; or the same inPepper and Lewis,Digest(1896), II, 2884.[1461]Of course, such unions are included where marriage is expressly prohibited between persons nearer of kin than first or second cousins by the rules of the civil law.[1462]In Utah marriage is forbidden within, but not including, the fourth degree of collateral kinship according to the rules of the civil law. Originally Iowa had the same rule as Minnesota:Code of Iowa(1843), 434.[1463]First cousins are prohibited by act of March 10:Session Laws of Col.(1864), 108; the prohibition is retained inGen. Laws(1877), 612; but omitted inGen. Stat.(1883), 690, the change being made inSession Laws(1883), 243. ButMills,Ann. Stat.(1891), sec. 1320, p. 931, declares the marriage of first cousins incestuous and void. SeeLaws of Pa.(1901), 597, for prohibition of marriage of first cousins;Laws of Ore.(1893), 41;Codes and Stat. of Ore.(1902), II, 1681.[1464]Such marriages are voidable in New Jersey, "and until dissolved by a court of competent jurisdiction must in all collateral proceedings, be treated as valid."—Gen. Stat.(1896), II, 2003.Cf.Boylanv.De Inzer, 18Stewart,N. J. Equity Reports, 485.[1465]For example, in Colorado, knowingly contracting or solemnizing such a marriage is a misdemeanor subject to a fine of $50 to $500, or imprisonment from three months to two years, or both:Mills,Ann. Stat.(1891), II, 1678; in Illinois incest is punished by imprisonment for not more than ten years, or twenty if the crime is that of father with daughter:Hurd,Rev. Stat.(1898), 577; in Kansas, for contracting, solemnizing, or licensing a marriage within the forbidden degrees the offender is liable to a fine of from $100 to $1,000, or imprisonment for from three months to five years, or both:Webb,Gen. Stat.(1897), II, 637; but elsewhere the law makes an incestuous marriage punishable by confinement and hard labor not exceeding seven years:ibid., II, 301; in Ohio, persons nearer of kin than cousins committing fornication or adultery are liable to imprisonment for from one to seven years:Bates,Ann. Stat.(1897), III, 3220; in Utah, solemnizing a marriage within the forbidden degrees is punished by not exceeding three years in the penitentiary, or a fine of not more than $1,000, or both:Rev. Stat.(1898), 331; byLaws(1888), 91; in Washington the penalty for contracting is imprisonment in the penitentiary for from one to ten years:Ann. Codes and Stat.(1897), I, 1175; in North Dakota it is a misdemeanor, with imprisonment not more than six months, or a fine of not more than $500:Laws(1890), 276; but for incest the penalty is one to ten years in the penitentiary:Rev. Codes(1895), 1273; in Delaware, a fine of $100:Rev. Stat.(1893), 593.[1466]Mills,Ann. Stat. of Col.(1891), II, 1678. On the Spanish laws and their effect see Smithv.Smith, 1Texas Reports, 621; 46Am. Decis., 121, note, 130-34.[1467]Sec. 11 of theDigest of the Laws of Pa.(1883) provides that "in all cases where a supposed or alleged marriage shall have been contracted which is absolutely void by reason of one of the parties thereto having a husband or wife living at the time, the court of common pleas shall have power to decree the said supposed or alleged marriage to be null and void upon the application of the innocent or injured party;" and this provision is still in force:Pepper and Lewis,Digest(1896), I, 1634. Now, as in 1785, a bigamous marriage is a ground of divorce:ibid., I, 1633.Myers,Rev. Stat. of Ill.(1895), 545, provides that "no divorce shall in any wise affect the legitimacy of children, except where the marriage shall be declared void on the ground of a prior marriage;" and Colorado has the same provision:Mills,Ann. Stat.(1891), I, 1035.
[1375]TheAnn. Code of Miss.(1892), 677 ff., is silent as to bond.
[1375]TheAnn. Code of Miss.(1892), 677 ff., is silent as to bond.
[1376]In Missouri, failure to keep a record or solemnization without license is a misdemeanor. The transgressor must pay a fine of not exceeding $500, and in addition he is liable to a civil action by the parent or other person to whom "services" are due, to recover not more than $500:Laws(1881), 161;Rev. Stat.(1889), II, 1606;ibid.(1899), I, 1037. In Alabama the fine is $1,000, one-half to the state and one-half to the person suing:Code(1896), I, 829; in North Carolina, solemnization without license or failure to make return is a misdemeanor, subject to a fine of $200, payable to anyone who sues:Code(1883), I, 691, 692; in Kentucky, a fine of not more than $1,000, or imprisonment from one to twelve months, or both:Stat.(1894), 766; in Arkansas, a high misdemeanor and a fine of not less than $100:Digest(1894), 1127; in Tennessee, a misdemeanor and a fine of $500:Code(1896), 1040-41; in Georgia, a fine of $500:Code(1896), II, 223; in Virginia and West Virginia, forfeiture of bond:Code of Va.(1887), 557;Code of W. Va.(1891), 608; in Maryland, a fine of $100 to $500:Laws(1894), 124; in Texas, a misdemeanor and a fine of $50 to $500: Act of June 5, 1900:Gen. Laws, 307. In the District of Columbia for marriage without banns or license each of the parties and the person solemnizing are liable to a fine of 500 pounds current money:Comp. Stat.(1894), 272;Moore,Code, 266.
[1376]In Missouri, failure to keep a record or solemnization without license is a misdemeanor. The transgressor must pay a fine of not exceeding $500, and in addition he is liable to a civil action by the parent or other person to whom "services" are due, to recover not more than $500:Laws(1881), 161;Rev. Stat.(1889), II, 1606;ibid.(1899), I, 1037. In Alabama the fine is $1,000, one-half to the state and one-half to the person suing:Code(1896), I, 829; in North Carolina, solemnization without license or failure to make return is a misdemeanor, subject to a fine of $200, payable to anyone who sues:Code(1883), I, 691, 692; in Kentucky, a fine of not more than $1,000, or imprisonment from one to twelve months, or both:Stat.(1894), 766; in Arkansas, a high misdemeanor and a fine of not less than $100:Digest(1894), 1127; in Tennessee, a misdemeanor and a fine of $500:Code(1896), 1040-41; in Georgia, a fine of $500:Code(1896), II, 223; in Virginia and West Virginia, forfeiture of bond:Code of Va.(1887), 557;Code of W. Va.(1891), 608; in Maryland, a fine of $100 to $500:Laws(1894), 124; in Texas, a misdemeanor and a fine of $50 to $500: Act of June 5, 1900:Gen. Laws, 307. In the District of Columbia for marriage without banns or license each of the parties and the person solemnizing are liable to a fine of 500 pounds current money:Comp. Stat.(1894), 272;Moore,Code, 266.
[1377]Arkansas and Indian Territory have a peculiar provision. The person obtaining a license is required to report "the same to the office of the clerk of the county court within 60 days from the date of such license; and if the same be duly executed and officially signed by some person authorized by law to solemnize marriage," the bond of the person so applying for the license shall be null and void, otherwise of full force:Digest(1894), 1129;Ann. Stat. of Ind. Ter.(1899), 510.
[1377]Arkansas and Indian Territory have a peculiar provision. The person obtaining a license is required to report "the same to the office of the clerk of the county court within 60 days from the date of such license; and if the same be duly executed and officially signed by some person authorized by law to solemnize marriage," the bond of the person so applying for the license shall be null and void, otherwise of full force:Digest(1894), 1129;Ann. Stat. of Ind. Ter.(1899), 510.
[1378]Return is made to the judge issuing the license in Porto Rico; to the proper officer in the county where the marriage is celebrated in Missouri, Mississippi, and New Mexico; in all other cases, in the county where the woman resides.
[1378]Return is made to the judge issuing the license in Porto Rico; to the proper officer in the county where the marriage is celebrated in Missouri, Mississippi, and New Mexico; in all other cases, in the county where the woman resides.
[1379]The Virginia law requires the clerk to deliver to the person entitled the license and also a certificate containing the names of the parties, date of the proposed marriage, etc. The person solemnizing is to return the license and the clerk's certificate, together with his own certificate of the time and place of the marriage:Code(1887), 556.
[1379]The Virginia law requires the clerk to deliver to the person entitled the license and also a certificate containing the names of the parties, date of the proposed marriage, etc. The person solemnizing is to return the license and the clerk's certificate, together with his own certificate of the time and place of the marriage:Code(1887), 556.
[1380]This is the form of indorsement required by the Tennessee law: "I solemnized the rite of matrimony between the above (or within) named parties, on the —— day of ——, 18—."—Code(1896), 1039.
[1380]This is the form of indorsement required by the Tennessee law: "I solemnized the rite of matrimony between the above (or within) named parties, on the —— day of ——, 18—."—Code(1896), 1039.
[1381]Comp. Stat.(1894), 274, 273;Moore,Code, 267.
[1381]Comp. Stat.(1894), 274, 273;Moore,Code, 267.
[1382]Comp. Stat.(1894), 273.
[1382]Comp. Stat.(1894), 273.
[1383]Ann. Code of Miss.(1892), 678.
[1383]Ann. Code of Miss.(1892), 678.
[1384]Rev. Stat. of Mo.(1889), II, 1605:ibid.(1899), I, 1037.
[1384]Rev. Stat. of Mo.(1889), II, 1605:ibid.(1899), I, 1037.
[1385]Code of Va.(1887), 557;Code of W. Va.(1891), 608;ibid.(1900), 656, 657.
[1385]Code of Va.(1887), 557;Code of W. Va.(1891), 608;ibid.(1900), 656, 657.
[1386]Code of Md.(1888), I, 975, 976:Laws of Mo.(1895), 222;Moore,Code of D. C.(1902), 267:Rev. Stat. and Codes of Porto Rico(1902), 810.
[1386]Code of Md.(1888), I, 975, 976:Laws of Mo.(1895), 222;Moore,Code of D. C.(1902), 267:Rev. Stat. and Codes of Porto Rico(1902), 810.
[1387]Digest of Ark.(1894), 1129.
[1387]Digest of Ark.(1894), 1129.
[1388]Code of Ala.(1897), I, 828;Ann. Code of Miss.(1892), 678.
[1388]Code of Ala.(1897), I, 828;Ann. Code of Miss.(1892), 678.
[1389]Except apparently in Tennessee.
[1389]Except apparently in Tennessee.
[1390]Act of Feb. 3, 1900:Acts(1899-1900), 283, 284.
[1390]Act of Feb. 3, 1900:Acts(1899-1900), 283, 284.
[1391]In West Virginia "the registration of births, marriages, and deaths of white and colored shall be kept separate and distinct."—Code(1900), 659.Cf.Ky. Gen. Stat.(1887), 204;Digest of Ark.(1894), 320, 321;Code of Va.(1887), 130, 558.For the entire discussion of matrimonial administration in these states, as above given in subsec.c), compareCode of Ala.(1897), I, 827 ff.;Rev. Stat. of Ariz.(1887), 371, 372;Digest of Ark.(1894), 1126 ff.;Rev. Stat. of Fla.(1892), 679 ff.;Code of Ga.(1896), II, 221 ff.;Kentucky Stat.(1894), 765, 766;Rev. Civil Code of La.(1888), 60 ff.;Code of Md.(1888), I, 975 ff.;Ann. Code of Miss.(1892), 677, 678;Rev. Stat. of Mo.(1899), I, 1035 ff.;Comp. Laws of N. M.(1897), 403 ff.;Code of N. C.(1883), I, 690-92;Code of Tenn.(1884), 609-11;Gen. Laws of Tex.(1891), 96;Rev. Civil Stat. of Tex.(1888), I, 877, 878;Code of Va.(1887), 555-60;Acts(1900), 283, 284;Code of W. Va.(1900), 654 ff., 934; alsoActs of Leg.(1887), chap. 64;Ann. Stat. of Ind. Ter.(1899), 507 ff.;Session Laws of Oklahoma(1897), 208 ff.;Comp. Stat. of D. C.(1894), 270-75.
[1391]In West Virginia "the registration of births, marriages, and deaths of white and colored shall be kept separate and distinct."—Code(1900), 659.Cf.Ky. Gen. Stat.(1887), 204;Digest of Ark.(1894), 320, 321;Code of Va.(1887), 130, 558.
For the entire discussion of matrimonial administration in these states, as above given in subsec.c), compareCode of Ala.(1897), I, 827 ff.;Rev. Stat. of Ariz.(1887), 371, 372;Digest of Ark.(1894), 1126 ff.;Rev. Stat. of Fla.(1892), 679 ff.;Code of Ga.(1896), II, 221 ff.;Kentucky Stat.(1894), 765, 766;Rev. Civil Code of La.(1888), 60 ff.;Code of Md.(1888), I, 975 ff.;Ann. Code of Miss.(1892), 677, 678;Rev. Stat. of Mo.(1899), I, 1035 ff.;Comp. Laws of N. M.(1897), 403 ff.;Code of N. C.(1883), I, 690-92;Code of Tenn.(1884), 609-11;Gen. Laws of Tex.(1891), 96;Rev. Civil Stat. of Tex.(1888), I, 877, 878;Code of Va.(1887), 555-60;Acts(1900), 283, 284;Code of W. Va.(1900), 654 ff., 934; alsoActs of Leg.(1887), chap. 64;Ann. Stat. of Ind. Ter.(1899), 507 ff.;Session Laws of Oklahoma(1897), 208 ff.;Comp. Stat. of D. C.(1894), 270-75.
[1392]In this section the laws of the following twenty-five districts and states are considered: Alaska, California, Colorado, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Utah, Washington, Wisconsin, and Wyoming.
[1392]In this section the laws of the following twenty-five districts and states are considered: Alaska, California, Colorado, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Utah, Washington, Wisconsin, and Wyoming.
[1393]Act of April 9, 1813:Laws of New York(1813), II, 201, 202.
[1393]Act of April 9, 1813:Laws of New York(1813), II, 201, 202.
[1394]Rev. Stat., Passed 1827-28(Albany, 1829), II, 139, 140.
[1394]Rev. Stat., Passed 1827-28(Albany, 1829), II, 139, 140.
[1395]A false statement of either person is punishable as perjury:Laws(1873), chap. 25, pp. 19, 20; also inRev. Stat.(1889), IV, 2597.
[1395]A false statement of either person is punishable as perjury:Laws(1873), chap. 25, pp. 19, 20; also inRev. Stat.(1889), IV, 2597.
[1396]To the leader of the Society for Ethical Culture in the city of New York and the justices and the judges of all courts of record:Laws(1888), chap. 78, pp. 122, 123, superseding an amendment toRev. Stat.(1829) authorized byLaws(1887), chap. 77, pp. 89, 90, andLaws(1877), chap. 430;Rev. Stat.(1889), "supplement" in IV, 2596, 2597.
[1396]To the leader of the Society for Ethical Culture in the city of New York and the justices and the judges of all courts of record:Laws(1888), chap. 78, pp. 122, 123, superseding an amendment toRev. Stat.(1829) authorized byLaws(1887), chap. 77, pp. 89, 90, andLaws(1877), chap. 430;Rev. Stat.(1889), "supplement" in IV, 2596, 2597.
[1397]Laws(1887), chap. 77, p. 90; also inRev. Stat.(1889), IV, 2598.
[1397]Laws(1887), chap. 77, p. 90; also inRev. Stat.(1889), IV, 2598.
[1398]Laws of N. Y.(1901), II, 933-35.
[1398]Laws of N. Y.(1901), II, 933-35.
[1399]Act of May 18, 1892:Rev. Stat.(supplemental volume, 1892), V, 3742.
[1399]Act of May 18, 1892:Rev. Stat.(supplemental volume, 1892), V, 3742.
[1400]Laws of the State of N. J.(1800), 158, 159.
[1400]Laws of the State of N. J.(1800), 158, 159.
[1401]Pub. Laws(1882), 203; retained inGen. Stat. of N. J.(1896), II, 2005. See for earlier acts amendedPub. Laws(1877), 168.
[1401]Pub. Laws(1882), 203; retained inGen. Stat. of N. J.(1896), II, 2005. See for earlier acts amendedPub. Laws(1877), 168.
[1402]A justice of the peace may solemnize a marriage out of the county for which he is commissioned: Pearsonv.Howey, 6Halsted,N. J. Reports, 12.
[1402]A justice of the peace may solemnize a marriage out of the county for which he is commissioned: Pearsonv.Howey, 6Halsted,N. J. Reports, 12.
[1403]Act of June 13, 1890:Pub. Laws(1890), 439;Gen. Stat.(1896), II, 2006.
[1403]Act of June 13, 1890:Pub. Laws(1890), 439;Gen. Stat.(1896), II, 2006.
[1404]Pub. Laws(1889), 139;Rev. Stat.(1896), II, 2005.
[1404]Pub. Laws(1889), 139;Rev. Stat.(1896), II, 2005.
[1405]Laws(1885), No. 115, sec. 1.
[1405]Laws(1885), No. 115, sec. 1.
[1406]Rodebaughv.Sanks (1833), 2Watts, 9; Fulkersonv.Day (1881), 15Phila. Reports, 638. The provision of 1701 requiring the justice to subscribe the publication (or certificate) is not obsolete: Helffensteinv.Thomas (1835), 5Rawle,Reports, 209.
[1406]Rodebaughv.Sanks (1833), 2Watts, 9; Fulkersonv.Day (1881), 15Phila. Reports, 638. The provision of 1701 requiring the justice to subscribe the publication (or certificate) is not obsolete: Helffensteinv.Thomas (1835), 5Rawle,Reports, 209.
[1407]Above, chap. xii, sec. iii.
[1407]Above, chap. xii, sec. iii.
[1408]Act of April 10:Laws of the Gen. Assembly(1849), 549; retained inPepper and Lewis,Digest(1896), II, 2879.
[1408]Act of April 10:Laws of the Gen. Assembly(1849), 549; retained inPepper and Lewis,Digest(1896), II, 2879.
[1409]Act of Jan. 29, 1790:Laws of the State of Del.(1797), II, 972, 973.
[1409]Act of Jan. 29, 1790:Laws of the State of Del.(1797), II, 972, 973.
[1410]Rev. Stat. of Del.(1874), 473; also inRev. Stat.(of 1852, as amended to 1893), 594. By the act of Feb. 25:Laws of Del.(1875), 260, the mayor of Newcastle was granted the same power, but it seems not to be continued in the present law.
[1410]Rev. Stat. of Del.(1874), 473; also inRev. Stat.(of 1852, as amended to 1893), 594. By the act of Feb. 25:Laws of Del.(1875), 260, the mayor of Newcastle was granted the same power, but it seems not to be continued in the present law.
[1411]On the significance of the settlement of Marietta, and the influence of the middle states and provinces, seeHoward,Local Const. Hist., I, 408, 411, 387,passim.
[1411]On the significance of the settlement of Marietta, and the influence of the middle states and provinces, seeHoward,Local Const. Hist., I, 408, 411, 387,passim.
[1412]Act of 1788:Chase,Stat. of Ohio and the Northwestern Ter., I, 101, 102.
[1412]Act of 1788:Chase,Stat. of Ohio and the Northwestern Ter., I, 101, 102.
[1413]Act of Aug. 1, 1792:Chase,op. cit., I, 126.
[1413]Act of Aug. 1, 1792:Chase,op. cit., I, 126.
[1414]After 1810, at any rate, it is the county court of common pleas:Chase,op. cit., I, 672 (1810); II, 1211 (1822), 1407 (1824);Swan,Stat. of Ohio(1853), 569-71.
[1414]After 1810, at any rate, it is the county court of common pleas:Chase,op. cit., I, 672 (1810); II, 1211 (1822), 1407 (1824);Swan,Stat. of Ohio(1853), 569-71.
[1415]Act of April 4, 1803, repealing the two preceding laws:Chase,op. cit., I, 354, 355.
[1415]Act of April 4, 1803, repealing the two preceding laws:Chase,op. cit., I, 354, 355.
[1416]Ann. Rev. Stat. of Ohio(1897), II, 3016.
[1416]Ann. Rev. Stat. of Ohio(1897), II, 3016.
[1417]The act of June 11, 1822:Chase,op. cit., II, 1211, requires the minister to produce his license to the clerk of the county court of common pleas, who shall "enter the name of such minister upon record as a minister of the gospel duly authorized to solemnize marriage within the state, and shall note the county from which said license" was issued. At present the license must be presented to the county court of probate.
[1417]The act of June 11, 1822:Chase,op. cit., II, 1211, requires the minister to produce his license to the clerk of the county court of common pleas, who shall "enter the name of such minister upon record as a minister of the gospel duly authorized to solemnize marriage within the state, and shall note the county from which said license" was issued. At present the license must be presented to the county court of probate.
[1418]Ann. Stat. of Ohio(1897), II, 3017;cf.Wright,Report, 56, 57.
[1418]Ann. Stat. of Ohio(1897), II, 3017;cf.Wright,Report, 56, 57.
[1419]Laws of the State of Ind.(1897), 129 (act of March 4, 1897).
[1419]Laws of the State of Ind.(1897), 129 (act of March 4, 1897).
[1420]Act of May 30:Laws(1881), 112; retained inHurd,Rev. Stat.(1898), 1068;cf.Rev. Stat.(1845), 343.
[1420]Act of May 30:Laws(1881), 112; retained inHurd,Rev. Stat.(1898), 1068;cf.Rev. Stat.(1845), 343.
[1421]Act of Aug. 2, 1805:Laws of the Ter. of Mich.(1871-84), I, 30 (from the "Woodward Code"): repeated in the "Cass Code" (1816):ibid., I, 202, 203.
[1421]Act of Aug. 2, 1805:Laws of the Ter. of Mich.(1871-84), I, 30 (from the "Woodward Code"): repeated in the "Cass Code" (1816):ibid., I, 202, 203.
[1422]Act of 1820:Laws of the Ter., I, 646, 647.
[1422]Act of 1820:Laws of the Ter., I, 646, 647.
[1423]Act of April 12, 1827:Laws of the Ter., II, 412-14.
[1423]Act of April 12, 1827:Laws of the Ter., II, 412-14.
[1424]Act of May 31, 1832:Laws of the Ter., III, 914, 915.
[1424]Act of May 31, 1832:Laws of the Ter., III, 914, 915.
[1425]Act of July 31:Laws(1873), 20; also inHowell,Gen. Stat.(1882), II, 1619, 1620. It is expressly provided that marriage may be solemnized on Sunday:ibid., I, sec. 2015; and in certain extreme cases the county judge of probate may perform the ceremony: see the acts of 1897 and 1899, referred to in subsec.c) below.
[1425]Act of July 31:Laws(1873), 20; also inHowell,Gen. Stat.(1882), II, 1619, 1620. It is expressly provided that marriage may be solemnized on Sunday:ibid., I, sec. 2015; and in certain extreme cases the county judge of probate may perform the ceremony: see the acts of 1897 and 1899, referred to in subsec.c) below.
[1426]But if the marriage among Quakers "does not take place in such meeting, such certificate shall be signed by the parties, and at least six witnesses present, and filed for record" with the county clerk:Gen. Stat. of Minn.(1894), I, 1266; the same inibid.(1866), 408; and nearly the same inibid.(1851), 271, 272.
[1426]But if the marriage among Quakers "does not take place in such meeting, such certificate shall be signed by the parties, and at least six witnesses present, and filed for record" with the county clerk:Gen. Stat. of Minn.(1894), I, 1266; the same inibid.(1866), 408; and nearly the same inibid.(1851), 271, 272.
[1427]The basis of the Wisconsin law of solemnization may be found in theStat.(1838-39), 139, 140, giving authority to justices of the peace in their counties, to judges and commissioners of the supreme court, and to ordained ministers; and containing the provision regarding the filing of credentials with the clerk of the district court. See alsoRev. Stat.(1849), 391-93, andibid.(1858), 616-18; including the same provisions regarding celebration asAnn. Stat.(1889), I, 1354-56, except that the present authority for court commissioners in the counties is conferred by act of March 13, 1871:Gen. Laws, 99.The Minnesota Law inRev. Stat. of the Ter.(1851), 270-72, is practically the same regarding the celebration as inGen. Stat. of the State(1866), 406, except the provisions in the latter regarding oath and credentials; and the law of 1866 is retained inWenzell and Lane,Gen. Stat.(1894), I, 1264-66, except that the provisions for solemnization by the superintendent of the deaf and dumb appear inLaws(1885), chap. 38, p. 47. Licentiates are also required to take out a certificate:Gen. Laws(1901), 285.
[1427]The basis of the Wisconsin law of solemnization may be found in theStat.(1838-39), 139, 140, giving authority to justices of the peace in their counties, to judges and commissioners of the supreme court, and to ordained ministers; and containing the provision regarding the filing of credentials with the clerk of the district court. See alsoRev. Stat.(1849), 391-93, andibid.(1858), 616-18; including the same provisions regarding celebration asAnn. Stat.(1889), I, 1354-56, except that the present authority for court commissioners in the counties is conferred by act of March 13, 1871:Gen. Laws, 99.
The Minnesota Law inRev. Stat. of the Ter.(1851), 270-72, is practically the same regarding the celebration as inGen. Stat. of the State(1866), 406, except the provisions in the latter regarding oath and credentials; and the law of 1866 is retained inWenzell and Lane,Gen. Stat.(1894), I, 1264-66, except that the provisions for solemnization by the superintendent of the deaf and dumb appear inLaws(1885), chap. 38, p. 47. Licentiates are also required to take out a certificate:Gen. Laws(1901), 285.
[1428]The justice of the peace is not expressly given authority by the Oregon law; but in effect he is authorized by the general clause allowing "any judicial officer" to act within his proper jurisdiction:Codes and Stat.(1902), II, 1682.
[1428]The justice of the peace is not expressly given authority by the Oregon law; but in effect he is authorized by the general clause allowing "any judicial officer" to act within his proper jurisdiction:Codes and Stat.(1902), II, 1682.
[1429]Deering,Codes and Stat. of Cal.(1886), II, 25, 26;Rev. Stat. of Idaho(1887), 302;Mills,Ann. Stat. of Col.(1891), II, 1681.
[1429]Deering,Codes and Stat. of Cal.(1886), II, 25, 26;Rev. Stat. of Idaho(1887), 302;Mills,Ann. Stat. of Col.(1891), II, 1681.
[1430]The solemnizer is required to ascertain the "name and place of residence of the witness, or two witnesses, if more than one is present":Ann. Stat. of S. D.(1899), II, 1022.
[1430]The solemnizer is required to ascertain the "name and place of residence of the witness, or two witnesses, if more than one is present":Ann. Stat. of S. D.(1899), II, 1022.
[1431]Witnesses are mentioned in the form of return to be made by the solemnizer:Gen. Stat. of N. J.(1896), II, 2006:Deering,Codes and Stat. of Cal., II, 26, 27.
[1431]Witnesses are mentioned in the form of return to be made by the solemnizer:Gen. Stat. of N. J.(1896), II, 2006:Deering,Codes and Stat. of Cal., II, 26, 27.
[1432]Wright,Report, 57.
[1432]Wright,Report, 57.
[1433]On witnesses and the form of ceremony seeDeering,Codes and Stat. of Cal.(1886), II, 26 (form);Rev. Stat. of Idaho(1887), 302;Howell,Gen. Stat. of Mich.(1882-90), II, 1619, 3602;Gen. Stat. of Minn.(1894), I, 1265;ibid.(1866), 407;Rev. Stat. of Minn.(1851), 271;Comp. Codes and Stat. of Mont.(1895), 477;Comp. Stat. of Neb.(1899), 757;Comp. Laws of Nev.(1900), 113;Rev. Stat. of N. Y.(1889), IV, 2597; same inibid.(1827-28), 139, 140;Codes and Gen. Laws of Ore.(1892), II, 1319; same inGen. Laws(1862), 86:Ann. Codes and Stat. of Wash.(1897), I, 1175, 1176;Rev. Stat. of Wyo.(1899), 791;Rev. Stat. of Wis.(1849), 392; also inAnn. Stat. of Wis.(1889), I, 1355.
[1433]On witnesses and the form of ceremony seeDeering,Codes and Stat. of Cal.(1886), II, 26 (form);Rev. Stat. of Idaho(1887), 302;Howell,Gen. Stat. of Mich.(1882-90), II, 1619, 3602;Gen. Stat. of Minn.(1894), I, 1265;ibid.(1866), 407;Rev. Stat. of Minn.(1851), 271;Comp. Codes and Stat. of Mont.(1895), 477;Comp. Stat. of Neb.(1899), 757;Comp. Laws of Nev.(1900), 113;Rev. Stat. of N. Y.(1889), IV, 2597; same inibid.(1827-28), 139, 140;Codes and Gen. Laws of Ore.(1892), II, 1319; same inGen. Laws(1862), 86:Ann. Codes and Stat. of Wash.(1897), I, 1175, 1176;Rev. Stat. of Wyo.(1899), 791;Rev. Stat. of Wis.(1849), 392; also inAnn. Stat. of Wis.(1889), I, 1355.
[1434]Cf.Wright,Report, 56.
[1434]Cf.Wright,Report, 56.
[1435]Sharonv.Sharon, 67Cal.(1885), 185 ff.; 75Cal.(1888), 1-78; 79Cal.(1889), 633-703; 84Cal.(1890), 424 ff. For other cases of "contract" marriages under the code of 1873, see Kellyv.Murphy, 70Cal.(1887), 560; Kilburnv.Kilburn, 89Cal.(1891), 46; Peoplev.Beevers, 99Cal.(1893), 286; Toonv.Huberty, 104Cal.(1894), 260; Peoplev.Lehman, 104Cal.(1894), 631; Hinckleyv.Ayres, 105Cal.(1895), 357. From 1849 to 1873 common-law marriages were good in California: see Grahamv.Bennett, 2Cal.(1852), 503; Lettersv.Cady, 10Cal.(1858), 530; Casev.Case, 17Cal.(1861), 598; Peoplev.Anderson, 26Cal.(1864), 130; estate of Charles Beverson, 47Cal.(1874), 621; estate of McCausland, 52Cal.(1878), 568;in reBriswalter, 72Cal.(1887), 107; Whitev.White, 82Cal.(1890), 427. The facts in the four cases last mentioned arose before 1873.
[1435]Sharonv.Sharon, 67Cal.(1885), 185 ff.; 75Cal.(1888), 1-78; 79Cal.(1889), 633-703; 84Cal.(1890), 424 ff. For other cases of "contract" marriages under the code of 1873, see Kellyv.Murphy, 70Cal.(1887), 560; Kilburnv.Kilburn, 89Cal.(1891), 46; Peoplev.Beevers, 99Cal.(1893), 286; Toonv.Huberty, 104Cal.(1894), 260; Peoplev.Lehman, 104Cal.(1894), 631; Hinckleyv.Ayres, 105Cal.(1895), 357. From 1849 to 1873 common-law marriages were good in California: see Grahamv.Bennett, 2Cal.(1852), 503; Lettersv.Cady, 10Cal.(1858), 530; Casev.Case, 17Cal.(1861), 598; Peoplev.Anderson, 26Cal.(1864), 130; estate of Charles Beverson, 47Cal.(1874), 621; estate of McCausland, 52Cal.(1878), 568;in reBriswalter, 72Cal.(1887), 107; Whitev.White, 82Cal.(1890), 427. The facts in the four cases last mentioned arose before 1873.
[1436]Deering,Codes and Stat. of Cal.(1886), II, 18, 19, 20, 27; amended by act of March 26, 1895:Stat. and Amendments to the Codes(1895), 121. Compare the present law of South Dakota:Ann. Stat.(1899), II, 1018, 1022;Rev. Codes of S. D.(1903), 596; and that of Montana:Comp. Codes and Stat.(1895), 475, 477, 478, which in the definition declares that consent "must be followed by a solemnization, or by a mutual and public assumption of the marital relation." In the use of the word "public" the present law of Montana differs from that of California previous to 1895. Formerly the laws of Idaho and California were identical; but now the provision for declaration is omitted from those of Idaho, although the prescribed celebration is not essential to a valid marriage.Cf.Comp. and Rev. Laws of Idaho(1875), 642, 645;Rev. Stat.(1887), 301.
[1436]Deering,Codes and Stat. of Cal.(1886), II, 18, 19, 20, 27; amended by act of March 26, 1895:Stat. and Amendments to the Codes(1895), 121. Compare the present law of South Dakota:Ann. Stat.(1899), II, 1018, 1022;Rev. Codes of S. D.(1903), 596; and that of Montana:Comp. Codes and Stat.(1895), 475, 477, 478, which in the definition declares that consent "must be followed by a solemnization, or by a mutual and public assumption of the marital relation." In the use of the word "public" the present law of Montana differs from that of California previous to 1895. Formerly the laws of Idaho and California were identical; but now the provision for declaration is omitted from those of Idaho, although the prescribed celebration is not essential to a valid marriage.Cf.Comp. and Rev. Laws of Idaho(1875), 642, 645;Rev. Stat.(1887), 301.
[1437]Want of authority to solemnize does not avoid a marriage: Statev.Brecht, 41Minn., 50, 54; 42N. W. Rep., 602; Martinv.Ryan, 2Pinney,Wis. Reports, 24.
[1437]Want of authority to solemnize does not avoid a marriage: Statev.Brecht, 41Minn., 50, 54; 42N. W. Rep., 602; Martinv.Ryan, 2Pinney,Wis. Reports, 24.
[1438]For unauthorized solemnization and the penalty seeRev. Stat. of Idaho(1887), 303, 761: a misdemeanor punished by confinement in the county jail not exceeding six months, or a fine of not more than $300, or both;Laws of Ind.(1897), 129 (March 4);Rev. Stat.(1896), I, sec. 2148: a fine of $50 to $500, to which may be added imprisonment in the county jail for from ten days to three months;Howell,Gen. Stat. of Mich.(1883), II, 1620: a misdemeanor punishable by imprisonment in the county jail of not more than one year, or a fine of $50 to $500, or both;Gen. Stat. of Minn.(1894), I, 1266: a misdemeanor, with not over one year's imprisonment, or a fine of not exceeding $500, or both;Comp. Codes and Stat. of Mont.(1895), 477;Comp. Stat. of Neb.(1899), 757: a misdemeanor, with not more than one year in jail, or a fine not to exceed $500;Comp. Laws of Nev.(1900), 114: a fine of not more than $500, or imprisonment till paid;Codes and Gen. Laws of Ore.(1892), II, 1320-22; I, 967: not more than one year in jail, or a fine of $100 to $500; and the same penalty for illegal solemnization and for illegally issuing a license by the clerk;Rev. Stat. of Utah(1898), 331;Laws(1888), 90: not exceeding three years in the state prison, and the same penalty for false personation of parent or guardian, or for forging a certificate of consent;Ann. Code of Wash.(1897), I, 1175, 1178;Ann. Stat. of Wis.(1889), I, 1356: not exceeding one year in jail, or a fine of not more than $500, and the same for illegal solemnization, making false certificate, or for false personation;Rev. Stat. of Wyo.(1899), 791, 792: a misdemeanor, and the same penalty as in Wisconsin for unauthorized solemnization, which is prescribed also for false certificate or false record by the clerk;Ann. Rev. Stat. of Ohio(1897), II, 3017: imprisonment for six months, or a fine of $500, or both;Laws of N. D.(1890), 278: a misdemeanor with fine of $100 to $500 and costs, or imprisonment in the county jail for from three months to one year.
[1438]For unauthorized solemnization and the penalty seeRev. Stat. of Idaho(1887), 303, 761: a misdemeanor punished by confinement in the county jail not exceeding six months, or a fine of not more than $300, or both;Laws of Ind.(1897), 129 (March 4);Rev. Stat.(1896), I, sec. 2148: a fine of $50 to $500, to which may be added imprisonment in the county jail for from ten days to three months;Howell,Gen. Stat. of Mich.(1883), II, 1620: a misdemeanor punishable by imprisonment in the county jail of not more than one year, or a fine of $50 to $500, or both;Gen. Stat. of Minn.(1894), I, 1266: a misdemeanor, with not over one year's imprisonment, or a fine of not exceeding $500, or both;Comp. Codes and Stat. of Mont.(1895), 477;Comp. Stat. of Neb.(1899), 757: a misdemeanor, with not more than one year in jail, or a fine not to exceed $500;Comp. Laws of Nev.(1900), 114: a fine of not more than $500, or imprisonment till paid;Codes and Gen. Laws of Ore.(1892), II, 1320-22; I, 967: not more than one year in jail, or a fine of $100 to $500; and the same penalty for illegal solemnization and for illegally issuing a license by the clerk;Rev. Stat. of Utah(1898), 331;Laws(1888), 90: not exceeding three years in the state prison, and the same penalty for false personation of parent or guardian, or for forging a certificate of consent;Ann. Code of Wash.(1897), I, 1175, 1178;Ann. Stat. of Wis.(1889), I, 1356: not exceeding one year in jail, or a fine of not more than $500, and the same for illegal solemnization, making false certificate, or for false personation;Rev. Stat. of Wyo.(1899), 791, 792: a misdemeanor, and the same penalty as in Wisconsin for unauthorized solemnization, which is prescribed also for false certificate or false record by the clerk;Ann. Rev. Stat. of Ohio(1897), II, 3017: imprisonment for six months, or a fine of $500, or both;Laws of N. D.(1890), 278: a misdemeanor with fine of $100 to $500 and costs, or imprisonment in the county jail for from three months to one year.
[1439]Amendments to the Civil Code(1895), chap. 68.
[1439]Amendments to the Civil Code(1895), chap. 68.
[1440]Rev. Stat. of Idaho(1887), 302;Comp. Codes and Stat. of Mont.(1895), 476;Stat. of S. D.(1899), II, 1020.
[1440]Rev. Stat. of Idaho(1887), 302;Comp. Codes and Stat. of Mont.(1895), 476;Stat. of S. D.(1899), II, 1020.
[1441]Code of Iowa(1897), 1124; same inibid.(1860), 428.Cf. ibid.(1851), secs. 1474, 1475. Thus the common-law contract is good: see Blanchardv.Lambert, 43Ia. Reports, 228.
[1441]Code of Iowa(1897), 1124; same inibid.(1860), 428.Cf. ibid.(1851), secs. 1474, 1475. Thus the common-law contract is good: see Blanchardv.Lambert, 43Ia. Reports, 228.
[1442]Horner,Rev. Stat. of Ind.(1896), II, sec. 5330;Burns,Ann. Stat.(1901), III, 705.
[1442]Horner,Rev. Stat. of Ind.(1896), II, sec. 5330;Burns,Ann. Stat.(1901), III, 705.
[1443]Mills,Ann. Stat. of Col.(1891), II, 1680. TheGen. Laws of Col.(1877), 613, show the exigencies of pioneer life in the provision that "all marriages which have been solemnized in this state, whether by any president or judge of any mining district, elected under and acting by the laws thereof," shall be valid. So in Oregon by an act of Jan. 17, 1854 (Stat. of Ore., 494), marriages contracted, with the consent of the parties, "when their residence is remote from any person duly authorized to solemnize such marriage, in any other manner than is prescribed, shall be valid; Provided that no legal impediment shall exist thereto; such contracts shall be made in writing duly attested, and shall be recorded in the office of the recorder of deeds of the proper county, within sixty days."
[1443]Mills,Ann. Stat. of Col.(1891), II, 1680. TheGen. Laws of Col.(1877), 613, show the exigencies of pioneer life in the provision that "all marriages which have been solemnized in this state, whether by any president or judge of any mining district, elected under and acting by the laws thereof," shall be valid. So in Oregon by an act of Jan. 17, 1854 (Stat. of Ore., 494), marriages contracted, with the consent of the parties, "when their residence is remote from any person duly authorized to solemnize such marriage, in any other manner than is prescribed, shall be valid; Provided that no legal impediment shall exist thereto; such contracts shall be made in writing duly attested, and shall be recorded in the office of the recorder of deeds of the proper county, within sixty days."
[1444]Carmichaelv.State, 12Ohio Reports, 553.
[1444]Carmichaelv.State, 12Ohio Reports, 553.
[1445]On the definition of marriage see Smithv.Smith, 17N. Y. Rep., 76; and on marriage as a question of status, Sewallv.Sewall, 122Mass., 156; Watkinsv.Watkins, 135Mass., 84.
[1445]On the definition of marriage see Smithv.Smith, 17N. Y. Rep., 76; and on marriage as a question of status, Sewallv.Sewall, 122Mass., 156; Watkinsv.Watkins, 135Mass., 84.
[1446]"Marriage is a civil contract, requiring the consent of the parties capable of entering into other contracts, except as herein otherwise noted."—Code of Iowa(1897), 1123;cf. ibid.(1851), sec. 1464;ibid.(1873), sec. 2186.
[1446]"Marriage is a civil contract, requiring the consent of the parties capable of entering into other contracts, except as herein otherwise noted."—Code of Iowa(1897), 1123;cf. ibid.(1851), sec. 1464;ibid.(1873), sec. 2186.
[1447]"Marriage, so far as its validity in law is concerned, shall continue in this state a civil contract, to which the consent of parties capable in law of contracting, shall be essential."—Rev. Stat. of N. Y.(1827-28), II, 138;cf. ibid.(1889), IV, 2595.
[1447]"Marriage, so far as its validity in law is concerned, shall continue in this state a civil contract, to which the consent of parties capable in law of contracting, shall be essential."—Rev. Stat. of N. Y.(1827-28), II, 138;cf. ibid.(1889), IV, 2595.
[1448]"Mutual promises to marry in the future, though made by parties competent to contract, and followed by cohabitation as husband and wife, is not, in itself, a valid marriage."—Duncanv.Duncan, 10Ohio Reports, 181.
[1448]"Mutual promises to marry in the future, though made by parties competent to contract, and followed by cohabitation as husband and wife, is not, in itself, a valid marriage."—Duncanv.Duncan, 10Ohio Reports, 181.
[1449]Rev. Stat. of Idaho(1887), 302;Deering,Codes and Stat. of Cal.(1886), II, sec. 62, p. 24: act of March 30, 1874,Amendments(1873-74), 185.
[1449]Rev. Stat. of Idaho(1887), 302;Deering,Codes and Stat. of Cal.(1886), II, sec. 62, p. 24: act of March 30, 1874,Amendments(1873-74), 185.
[1450]TheAnn. Codes and Stat. of Wash.(1897), I, 1174, fixes the age when marriage may be contracted at twenty-one for males and eighteen for females; but elsewhere provision is made for written consent of parent or guardian before license may be issued to persons below these ages respectively:ibid., I, 1177.
[1450]TheAnn. Codes and Stat. of Wash.(1897), I, 1174, fixes the age when marriage may be contracted at twenty-one for males and eighteen for females; but elsewhere provision is made for written consent of parent or guardian before license may be issued to persons below these ages respectively:ibid., I, 1177.
[1451]It is provided by theRev. Code of Del.(1874), chap. 75, sec. 1, "that a divorce may be granted in case the parties were, when married, below the ages specified (eighteen and sixteen), and did not voluntarily ratify the marriage after arriving at those ages;" and this is retained inRev. Stat.(1893), 596.Cf.Wright,Report, 30.
[1451]It is provided by theRev. Code of Del.(1874), chap. 75, sec. 1, "that a divorce may be granted in case the parties were, when married, below the ages specified (eighteen and sixteen), and did not voluntarily ratify the marriage after arriving at those ages;" and this is retained inRev. Stat.(1893), 596.Cf.Wright,Report, 30.
[1452]From 1864 to the act of Feb. 7, 1889, in Idaho, the ages of consent were respectively eighteen and sixteen for males and females; but in the last-named year eighteen was fixed as the age for both sexes:Laws(1863-64), 613:Gen. Laws(1889), 40.
[1452]From 1864 to the act of Feb. 7, 1889, in Idaho, the ages of consent were respectively eighteen and sixteen for males and females; but in the last-named year eighteen was fixed as the age for both sexes:Laws(1863-64), 613:Gen. Laws(1889), 40.
[1453]Below the ages of sixteen and fourteen in Iowa "marriage is a nullity or not, at the option of the minor, made known at any time before he or she is six months older than said ages."—Wright,Report, 30; seeCode of Iowa(1897), 1123;ibid.(1873), sec. 2186.
[1453]Below the ages of sixteen and fourteen in Iowa "marriage is a nullity or not, at the option of the minor, made known at any time before he or she is six months older than said ages."—Wright,Report, 30; seeCode of Iowa(1897), 1123;ibid.(1873), sec. 2186.
[1454]North Dakota shows a retrogression. By theRev. Code(1895), 608, the ages of consent to marriage are sixteen and thirteen: the same by the act of March 20, 1890:Laws, 276; which act had been superseded by that of March 9, 1891,Laws, 228, 229, which is in turn repealed by the act of 1895. Still earlier the laws of Dakota Territory had fixed the ages at eighteen and fifteen respectively:Code of Dakota(1883), sec. 36, p. 743; at sixteen and fourteen on May 7, 1862:Gen. Laws(1862), 390; and at fourteen and thirteen in 1866:Civil Code(1865-66), 11. By this last act the marriage of a woman under fourteen might be annulled, if contracted without consent of parent or guardian, and not followed by cohabitation, nor ratified after the girl attained that age.
[1454]North Dakota shows a retrogression. By theRev. Code(1895), 608, the ages of consent to marriage are sixteen and thirteen: the same by the act of March 20, 1890:Laws, 276; which act had been superseded by that of March 9, 1891,Laws, 228, 229, which is in turn repealed by the act of 1895. Still earlier the laws of Dakota Territory had fixed the ages at eighteen and fifteen respectively:Code of Dakota(1883), sec. 36, p. 743; at sixteen and fourteen on May 7, 1862:Gen. Laws(1862), 390; and at fourteen and thirteen in 1866:Civil Code(1865-66), 11. By this last act the marriage of a woman under fourteen might be annulled, if contracted without consent of parent or guardian, and not followed by cohabitation, nor ratified after the girl attained that age.
[1455]Formerly the ages in Utah were fourteen and twelve:Laws(1888), 88-91; they were fixed at sixteen and fourteen respectively for males and females by the act of March 11, 1897:Laws, 40.
[1455]Formerly the ages in Utah were fourteen and twelve:Laws(1888), 88-91; they were fixed at sixteen and fourteen respectively for males and females by the act of March 11, 1897:Laws, 40.
[1456]Solemnization against law as to age and parental consent does not invalidate: Partonv.Hervey, 1Gray, 119, 122; Holtzv.Dick, 42Ohio Reports, 791. In Kansas, 1859-67, the ages were twenty-one for males and eighteen for females:Webb,Gen. Stat.(1897), II, 939, note.
[1456]Solemnization against law as to age and parental consent does not invalidate: Partonv.Hervey, 1Gray, 119, 122; Holtzv.Dick, 42Ohio Reports, 791. In Kansas, 1859-67, the ages were twenty-one for males and eighteen for females:Webb,Gen. Stat.(1897), II, 939, note.
[1457]In Oregon a license may be issued for the marriage of a minor without such consent, when there is no parent or guardian resident in the state, if the female has lived in the county where the license is applied for during six months:Codes and Gen. Laws(1892), II, 1321;Codes and Stat.(1902), II, 1684.
[1457]In Oregon a license may be issued for the marriage of a minor without such consent, when there is no parent or guardian resident in the state, if the female has lived in the county where the license is applied for during six months:Codes and Gen. Laws(1892), II, 1321;Codes and Stat.(1902), II, 1684.
[1458]Laws(1797), II, 974.
[1458]Laws(1797), II, 974.
[1459]Rev. Stat. of Del.(1853), as amended (1893), 594. This provision is now obsolete, though retained in the statutes.
[1459]Rev. Stat. of Del.(1853), as amended (1893), 594. This provision is now obsolete, though retained in the statutes.
[1460]A marriage with a step-parent or parent-in-law is forbidden in Delaware, Iowa, Michigan, New Jersey, and Washington; apparently also in Pennsylvania. In the latter state marriages within the degrees of affinity, forbidden by the act of March 31,Laws(1860), 394, were legalized by the act of April 6, 1868;Laws of the Gen. Assem., 67; or the same inPepper and Lewis,Digest(1896), II, 2884.
[1460]A marriage with a step-parent or parent-in-law is forbidden in Delaware, Iowa, Michigan, New Jersey, and Washington; apparently also in Pennsylvania. In the latter state marriages within the degrees of affinity, forbidden by the act of March 31,Laws(1860), 394, were legalized by the act of April 6, 1868;Laws of the Gen. Assem., 67; or the same inPepper and Lewis,Digest(1896), II, 2884.
[1461]Of course, such unions are included where marriage is expressly prohibited between persons nearer of kin than first or second cousins by the rules of the civil law.
[1461]Of course, such unions are included where marriage is expressly prohibited between persons nearer of kin than first or second cousins by the rules of the civil law.
[1462]In Utah marriage is forbidden within, but not including, the fourth degree of collateral kinship according to the rules of the civil law. Originally Iowa had the same rule as Minnesota:Code of Iowa(1843), 434.
[1462]In Utah marriage is forbidden within, but not including, the fourth degree of collateral kinship according to the rules of the civil law. Originally Iowa had the same rule as Minnesota:Code of Iowa(1843), 434.
[1463]First cousins are prohibited by act of March 10:Session Laws of Col.(1864), 108; the prohibition is retained inGen. Laws(1877), 612; but omitted inGen. Stat.(1883), 690, the change being made inSession Laws(1883), 243. ButMills,Ann. Stat.(1891), sec. 1320, p. 931, declares the marriage of first cousins incestuous and void. SeeLaws of Pa.(1901), 597, for prohibition of marriage of first cousins;Laws of Ore.(1893), 41;Codes and Stat. of Ore.(1902), II, 1681.
[1463]First cousins are prohibited by act of March 10:Session Laws of Col.(1864), 108; the prohibition is retained inGen. Laws(1877), 612; but omitted inGen. Stat.(1883), 690, the change being made inSession Laws(1883), 243. ButMills,Ann. Stat.(1891), sec. 1320, p. 931, declares the marriage of first cousins incestuous and void. SeeLaws of Pa.(1901), 597, for prohibition of marriage of first cousins;Laws of Ore.(1893), 41;Codes and Stat. of Ore.(1902), II, 1681.
[1464]Such marriages are voidable in New Jersey, "and until dissolved by a court of competent jurisdiction must in all collateral proceedings, be treated as valid."—Gen. Stat.(1896), II, 2003.Cf.Boylanv.De Inzer, 18Stewart,N. J. Equity Reports, 485.
[1464]Such marriages are voidable in New Jersey, "and until dissolved by a court of competent jurisdiction must in all collateral proceedings, be treated as valid."—Gen. Stat.(1896), II, 2003.Cf.Boylanv.De Inzer, 18Stewart,N. J. Equity Reports, 485.
[1465]For example, in Colorado, knowingly contracting or solemnizing such a marriage is a misdemeanor subject to a fine of $50 to $500, or imprisonment from three months to two years, or both:Mills,Ann. Stat.(1891), II, 1678; in Illinois incest is punished by imprisonment for not more than ten years, or twenty if the crime is that of father with daughter:Hurd,Rev. Stat.(1898), 577; in Kansas, for contracting, solemnizing, or licensing a marriage within the forbidden degrees the offender is liable to a fine of from $100 to $1,000, or imprisonment for from three months to five years, or both:Webb,Gen. Stat.(1897), II, 637; but elsewhere the law makes an incestuous marriage punishable by confinement and hard labor not exceeding seven years:ibid., II, 301; in Ohio, persons nearer of kin than cousins committing fornication or adultery are liable to imprisonment for from one to seven years:Bates,Ann. Stat.(1897), III, 3220; in Utah, solemnizing a marriage within the forbidden degrees is punished by not exceeding three years in the penitentiary, or a fine of not more than $1,000, or both:Rev. Stat.(1898), 331; byLaws(1888), 91; in Washington the penalty for contracting is imprisonment in the penitentiary for from one to ten years:Ann. Codes and Stat.(1897), I, 1175; in North Dakota it is a misdemeanor, with imprisonment not more than six months, or a fine of not more than $500:Laws(1890), 276; but for incest the penalty is one to ten years in the penitentiary:Rev. Codes(1895), 1273; in Delaware, a fine of $100:Rev. Stat.(1893), 593.
[1465]For example, in Colorado, knowingly contracting or solemnizing such a marriage is a misdemeanor subject to a fine of $50 to $500, or imprisonment from three months to two years, or both:Mills,Ann. Stat.(1891), II, 1678; in Illinois incest is punished by imprisonment for not more than ten years, or twenty if the crime is that of father with daughter:Hurd,Rev. Stat.(1898), 577; in Kansas, for contracting, solemnizing, or licensing a marriage within the forbidden degrees the offender is liable to a fine of from $100 to $1,000, or imprisonment for from three months to five years, or both:Webb,Gen. Stat.(1897), II, 637; but elsewhere the law makes an incestuous marriage punishable by confinement and hard labor not exceeding seven years:ibid., II, 301; in Ohio, persons nearer of kin than cousins committing fornication or adultery are liable to imprisonment for from one to seven years:Bates,Ann. Stat.(1897), III, 3220; in Utah, solemnizing a marriage within the forbidden degrees is punished by not exceeding three years in the penitentiary, or a fine of not more than $1,000, or both:Rev. Stat.(1898), 331; byLaws(1888), 91; in Washington the penalty for contracting is imprisonment in the penitentiary for from one to ten years:Ann. Codes and Stat.(1897), I, 1175; in North Dakota it is a misdemeanor, with imprisonment not more than six months, or a fine of not more than $500:Laws(1890), 276; but for incest the penalty is one to ten years in the penitentiary:Rev. Codes(1895), 1273; in Delaware, a fine of $100:Rev. Stat.(1893), 593.
[1466]Mills,Ann. Stat. of Col.(1891), II, 1678. On the Spanish laws and their effect see Smithv.Smith, 1Texas Reports, 621; 46Am. Decis., 121, note, 130-34.
[1466]Mills,Ann. Stat. of Col.(1891), II, 1678. On the Spanish laws and their effect see Smithv.Smith, 1Texas Reports, 621; 46Am. Decis., 121, note, 130-34.
[1467]Sec. 11 of theDigest of the Laws of Pa.(1883) provides that "in all cases where a supposed or alleged marriage shall have been contracted which is absolutely void by reason of one of the parties thereto having a husband or wife living at the time, the court of common pleas shall have power to decree the said supposed or alleged marriage to be null and void upon the application of the innocent or injured party;" and this provision is still in force:Pepper and Lewis,Digest(1896), I, 1634. Now, as in 1785, a bigamous marriage is a ground of divorce:ibid., I, 1633.Myers,Rev. Stat. of Ill.(1895), 545, provides that "no divorce shall in any wise affect the legitimacy of children, except where the marriage shall be declared void on the ground of a prior marriage;" and Colorado has the same provision:Mills,Ann. Stat.(1891), I, 1035.
[1467]Sec. 11 of theDigest of the Laws of Pa.(1883) provides that "in all cases where a supposed or alleged marriage shall have been contracted which is absolutely void by reason of one of the parties thereto having a husband or wife living at the time, the court of common pleas shall have power to decree the said supposed or alleged marriage to be null and void upon the application of the innocent or injured party;" and this provision is still in force:Pepper and Lewis,Digest(1896), I, 1634. Now, as in 1785, a bigamous marriage is a ground of divorce:ibid., I, 1633.Myers,Rev. Stat. of Ill.(1895), 545, provides that "no divorce shall in any wise affect the legitimacy of children, except where the marriage shall be declared void on the ground of a prior marriage;" and Colorado has the same provision:Mills,Ann. Stat.(1891), I, 1035.