Chapter 36

[1468]A bigamous marriage is ground for divorce in Colorado:Mills,Ann. Stat., III, 4341.[1469]SeeAmendments to the Civil Code of Cal.(1897), sec. 61.Cf.secs. 82-84 ofDeering,Codes and Stat.(1886), II, 22, 28, 30. In New York the same exception is made when either spouse has been "finally sentenced to imprisonment for life":Rev. Stat.(1827-28), 139;ibid.(1889), IV, 2596.[1470]Bates,Ann. Rev. Stat. of Ohio(1897), III, 3220;Myers,Rev. Stat. of Ill.(1895), 445.[1471]Laws(1896), 128, 129, 271, 272.[1472]In Pennsylvania force or fraud in the marriage is a ground for divorce:Pepper and Lewis,Digest(1896), I, 1635;ibid.(1902), II, 1830.[1473]Stover,Code of Civil Proced.(1892), II, 1627.[1474]In Idaho, Michigan, Minnesota, Nebraska, New York, Oregon, Utah, Wisconsin, and Wyoming these marriages are not voidable when there has been subsequent voluntary cohabitation; in New York, Oregon, and Washington they are voidable only at the suit of the injured party; and in New York, only on a decree rendered during the lifetime of the parties.[1475]In Idaho a marriage is voidable for unsound mind, unless after the removal of the disability the parties freely cohabited; but in Iowa, when either party was impotent, insane, or an idiot, a marriage is not declared void by the statute, but provision is made for its annulment:McLain,Ann. Code(1888), I, 897. By the law of Michigan, such a marriage is voidable, if solemnized in the state; but there, as also in New York, Nebraska, and Wyoming, in case of lunacy, a marriage is not voidable when the parties have freely cohabited after the lunatic recovered.[1476]By the Indiana law such voidable marriages shall be declared void on application of the incapable party, and the children thereof shall be legitimate. The same is true in Kansas, but there cohabitation after incapacity ceases is a sufficient defense to the action for annulment. The law of Minnesota is similar. In Nevada and Nebraska a marriage is "not voidable for want of age, if after attaining the age of consent the parties for any time freely cohabited; nor for want of understanding, if after restoration to reason" they so cohabited. According to the New York statute a marriage is "not voidable on account of want of age at suit of the party who was of age of consent; nor where it appears that the parties after attaining such age freely cohabited; nor of a female under sixteen years of age if she had parental consent to the marriage," or when she ratified it after reaching that age. The law of Oregon is practically the same. In Michigan and Wyoming a marriage of persons below the age of consent is void if they separate during nonage and do not afterward cohabit.[1477]In Nebraska, New York, and Wyoming an action for annulment on the ground of impotence must be brought in two years; while for this cause in Colorado, Indiana, Illinois, Oregon, and some other states a "divorce" will be granted. Physical incapacity is cause for divorce in Michigan; and suit to "annul" a marriage on this ground must be brought within two years:Miller,Comp. Laws(1899), III, 2664.[1478]By the Ohio law marriages "contracted by male persons under the age of eighteen and females under the age of fourteen [now sixteen] are invalid, unless confirmed by cohabitation after arriving at those ages respectively; and such marriage, not so confirmed, does not subject a person to punishment for bigamy for contracting a subsequent marriage while the first husband or wife is living": see Shafherv.State, 20Ohio Reports, 1.[1479]California does not directly prohibit the intermarriage of whites and Chinese; but the county clerk is commanded not to "issue a license authorizing the marriage of a white person with a negro, mulatto, or Mongolian":Deering,Codes and Stat.(1886), II, 25, sec. 69.[1480]UntilLaws of Ore.(1893), 41, "Kanaka" blood was included in the prohibition.Cf.Codes and Stat.(1902), II, 1681, 1682; I, 274.[1481]Laws(1883), 16; also inHowell,Gen. Stat.(1883), II, 1619; and retained in the act of June 15:Pub. Acts(1899), 387.[1482]Pub. Acts of Mich.(1899), 387, 388 (June 15). The law applies to "syphilis and gonorrhœa."[1483]"No woman under the age of forty-five (45) years or man of any age, except he marry a woman over the age of forty-five (45) years, either of whom is epileptic, imbecile, feeble minded, or afflicted with insanity, shall hereafter intermarry, or marry any other person within this state."—Gen. Laws of Minn.(1901), 334, 335.[1484]Session Laws of Kan.(1903), 373, 374.[1485]Except that in Delaware, if the parties to any marriage prohibited for consanguinity or affinity, or for miscegenation, "although the same may have been solemnized in another state, shall cohabit as husband and wife in this state, they shall each be deemed guilty of a misdemeanor and upon conviction thereof shall be fined $100."—Rev. Stat.(1893), 593.[1486]Deering,Codes and Statutes(1886), II, sec. 1676, p. 311.[1487]Ibid., sec. 710, p. 171; according to the amendment of March 30, 1874:Amendments to Codes(1873-74), 218. This provision "leaves no doubt but that the limitation of an estate to a widow so long as she remains unmarried is good;" and the "rules which govern a devise in restraint of a widow's marriage, apply to like devise in restraint of a widower's marriage: Bostwickv.Blades, 4Am. Law Rec., 729 (Md. Ct. of App.)." SeeEditor Deering'svaluable note inCodes and Stat., II, 171, where cases are cited.[1488]The history of the various topics treated in this sectionb) for the several states may be traced as follows: (1) California:Stat.(1850), 424, 425;Comp. Laws(1853), 175-77;Acts Amendatory of the Codes(1873-74), 181 ff.;Stat.(1880), 121 ff.;Deering,Codes and Stat.(1886), II, 18-37;Amendments to Codes(1895), 121; (2) Colorado:Sess. Laws(1861), 313;ibid.(1864), 108 ff.;Gen. Laws(1887), 611-13;Gen. Stat.(1883), 690-94;Mills,Ann. Stat.(1891), II, 1675 ff.; (3) Delaware:Rev. Stat.(1893), 593, 594; (4) Idaho:Laws(1863-64), 613 ff.;ibid.(1864), 397;ibid.(1867), 71-73;Comp. and Rev. Laws(1875), 642-45;Gen. Laws(1889), 40, 278-80;Rev. Stat.(1887), 301-3; (5) Illinois:Hurd,Rev. Stat.(1898), 630, 577, 1067-69; (6) Indiana:Laws of the State(1897), 129;Indiana Stat.(1896), II, secs. 5324 ff.; (7) Iowa:Code(1860), 747;ibid.(1873), 628;ibid.(1897), 1123-25, 1940; (8) Kansas:Stat.(1855), 488, 489;Laws(1857-58), 326;Gen. Laws(1859), 563, 564;Laws(1870), 157, 158;Webb,Gen. Stat.(1897), II, 637 ff., 301, 339; (9) Michigan:Laws of the Ter.(1871-84), I, 30-32, 202, 203, 646-49; II, 412-14; III, 1191, 1192;Howell,Gen. Stat.(1882-90), II, 1618-20;Comp. Laws of Mich.(1899), III, 2645-52; (10) Minnesota:Rev. Stat.(1851), 270-72;Gen. Stat.(1866), 406-8;Wenzell and Lane,Gen. Stat.(1894), I, 1264-66; (11) Montana:Comp. Codes and Stat.(1895), 474-78; (12) Nebraska:Laws(1855), 209-11;ibid.(1856), 150-52;Stat.(1867), 254-57;Comp. Stat.(1899), 756-58; (13) Nevada:Laws(1861), 93-96;ibid.(1867), 88, 89;ibid.(1881), 107, 108;Comp. Laws(1900), 112-15; (14) New Jersey:Laws of the State(1800), 158-60;Gen. Stat.(1896), II, 2003-6; I, 1064, 1066; (15) New York:Rev. Stat.(1829), II, 138-41;ibid.(1889), IV, 2596-98;Stover,Code of Civil Proced.(1892), II, 1627, 1632 ff.;ibid.(1902), II, 1830-35; (16) North Dakota:Laws(1890), 276-79;ibid.(1891), 228, 229;Rev. Codes(1895), 608-11;Revised Codes(1899), 692-95, 1440, 1441, 1454, 1455; (17) Ohio:Chase,Stat. of Ohio and N. W. Ter.(1833-35), I, 101, 102, 126, 354, 355, 672, 673; II, 1407, 1408;Bates,Ann. Stat.(1897), II, 3015-18, 2211; III, 3220; (18) Oregon:Laws(1843-49), 36, 80, 81;Stat.(1853-54), 492-94;Code of Civil Proced. and Other Gen. Laws(1862), 85-88;Codes and Gen. Laws(1892), II, 1317 ff.; I, 967; Act of Oct. 24, 1866:Acts and Res.(1866), 10, 11; (19) Pennsylvania:Pepper and Lewis,Digest(1896), II, 2878-83; (20) South Dakota:Stat.(1899), II, 1018-25, 1917;Rev. Codes(1903), 596-99; (21) Utah:Laws(1888), 88-91;Rev. Stat.(1898), 329-31; (22) Washington:Stat. of the Ter.(1854), 404, 405;ibid.(1865-66), 80-85;Ann. Codes and Stat.(1897), I, 1174-78; II, 1952; (23) Wisconsin:Stat. of the Ter.(1838-39), 139, 140;Rev. Stat.(1849), 391-93;Ann. Stat.(1889), I, 1354-56;Wis. Stat.(1898), I, 1692-94; (24) Wyoming:Rev. Laws(1870), 458-61;Rev. Stat.(1887), 415-17;ibid.(1899), 790-92, 1213; (25) Alaska:U. S. Statutes at Large, XXXI, 494, 495. Laws since 1899 are cited in the previous footnotes.[1489]Following is the form of the marriage-license bond: "That if there shall not hereafter appear any lawful let or impediment, by reason of any precontract, consanguinity, affinity, or any other just cause whatsoever, but that (the parties) may lawfully marry; and that there is not any suit depending before any judge, ecclesiastical or civil, for or concerning such precontract, and also if the said parties, and each of them, are of the ages aforesaid, to wit, female of eighteen and male of twenty-one years, and are not under the tuition of his or her parents, or have the full consent of his or her parents or guardians, respectively, to the said marriage; and if they, or either of them, are not indented servants and do and shall save harmless, and keep indemnified the president and his successors, for and concerning the premises, and shall likewise save harmless and keep indemnified the minister or preacher of the gospel, who shall join the said parties in matrimony, for or by reason of his so doing; then the obligation to be void, else to remain in full force; which said bond shall be filed of record in the office of the secretary."-Laws of Del.(1797), II, 974, 975.[1490]By act of June 15, 1793: inLaws of Del.(1797), II, 1127, 1128.[1491]Rev. Stat.(1893), 103.[1492]Ibid., 594; andcf.ibid.(1874), 473.[1493]Chase,Stat. of Ohio and the N. W. Ter.(1833-35), I, 101.[1494]Act of April 4, 1803;Chase,Stat., I, 354, 355.[1495]It is omitted in the act of Jan. 6, 1824:Chase,Stat., II, 1407, 1408; nor does it appear inSwan,Stat.(1854), 569 ff.[1496]Ann. Rev. Stat.(1897), II, 3016.Cf.the act of Feb. 16, 1810:Chase,Stat., I, 672, 673. See the act of April 25, 1898, requiring a statement under oath from persons applying for license; also evidence of parental consent in case of minors; and allowing the parent or guardian, when non-resident, to appear before a judge of a court of record in the county where he is domiciled, and give his consent in writing; such written consent must be attested by two witnesses, certified to by the judge, and be forwarded to the probate judge of the county where the license is to be issued:Laws(1898), 309-11.[1497]Laws of the Ter. of Mich.(1871-84), I, 30-32.[1498]Ibid., I, 646-49.[1499]Cf.Rev. Stat. of N. Y.(1827-28), 140: andibid.(1889), IV, 2597.[1500]Acts of N. J.(1897), 378.[1501]See above, subsec.a) andcf.Laws of N. J.(1800), 158 (act of 1795) withGen. Stat.(1896), II, 2005;Pub. Laws(1889), 139. The celebrant may administer an oath as to residence to either party;Acts(1900), 327, 328.[1502]Seein reMarriage License Act, 15Pa. C. C., 345 (1894); andPepper and Lewis,Digest, II, 2881, note.[1503]Laws(1885), 146;ibid.(1893), 27;ibid.(1887), 170;Pepper and Lewis,Digest(1896), II, 2878-83.[1504]Gen. Stat. of Minn.(1894), I, 1264, 1265.Following is the form of license or "certificate" in Colorado: "Know all men by this Certificate, that any regular ordained minister of the Gospel authorized by the rules and usages of the Church or denomination of Christians, Hebrews, or religious body of which he may be a member, or any judge or justice of the peace to whom this may come, he not knowing of any lawful impediment thereto, is hereby authorized and empowered to solemnize the rites of matrimony between .... of .... of the county of .... Previously married? .... Wife deceased? .... Divorced? .... When? .... Where? .... On what grounds? .... And .... of .... of the county of .... Previously married? .... Husband deceased? .... Divorced? .... When? .... Where? .... On what grounds? ...."—Mills,Ann. Stat. of Col.(1891), III, 828.[1505]Act of March 14, 1895: inComp. Codes and Stat.(1895), 476.[1506]In Michigan a girl under eighteen must bring written consent of parent or guardian before license will be issued:Pub. Acts(1895), 536, 537.[1507]Act of April 29:Laws of Wis.(1899), 529-31;cf.the act of 1903:Laws, 477, 478.[1508]The judge of probate must issue a license without publicity to a "female making application to him, under oath, containing a statement that she is with child, which if born alive before her marriage will become a bastard, or has lived with a man," etc. With consent of parent or guardian, such judge is empowered to marry persons under marriageable age, making such a statement, whenever he believes the marriage "would be a benefit to public morals." He is required to "file a complete set of all papers in each case in a private file, and shall within ten days after the marriage forward the duplicate thereof to the secretary of state, who shall file such duplicate in a private file and record the same in a private register." These private files of the probate judge and secretary of state "shall be open to inspection only upon the written order of the judge of any circuit or the supreme court of this state, and only for such use as is designated in such order. Such order shall be made only upon the written request of the person or persons who were so married, or when necessary to the protection of property rights arising from or affected by such marriage."—Pub. Acts of Mich.(1897), 230, 231;ibid.(1899), 363, 364.[1509]Return is made to the designated officer of the county (or town) where the license was issued, in Idaho (1899), Kansas, Michigan, Montana, Nebraska, Nevada (1899), and Utah; but where the marriage was solemnized, in California, Delaware, Illinois, Indiana, Minnesota, North Dakota, Washington, Wisconsin, Wyoming, and Iowa. The Pennsylvania act of 1893 requires the return to be made to the clerk of the orphans' court in the county where the marriage was solemnized; and this, doubtless, supersedes the law of 1885, which designates for this purpose the county from which license was issued, and which also appears inPepper and Lewis,Digest(1896), II, 2880, 2881, 2883. By the Ohio act of April 25, 1898, return is made to the probate judge of the county where the license was issued, or where the congregation in which publication of banns was made is located, or where the marriage was celebrated:Laws(1898), 309-11. Of course, the county of issue of license and the county of celebration are usually the same. In Oregon return is made both to the county clerk issuing the license and to the clerk of the county of the marriage:General Laws(1903), 99, 100.[1510]Statutes of S. D.(1899), II, 1023;Rev. Codes of S. D.(1903), 598;Mills,Ann. Stat. of Col.(1891), II, 1679;Code of Iowa(1897), 1124, 1125;Amendments to the Civil Code of Cal.(1873-74), 187;Deering,Codes and Statutes(1886), II, 27, 28; Act of 1897:Amendments to the Civil Code, sec. 79½, p. 186.[1511]Rev. Stat. of N. Y.(1889), IV, 2598; the same inRev. Stat.(1827-28), 140, 141.[1512]In California the original license, with the certificate of solemnization indorsed and attached must be filed with the county recorder in thirty days:Deering,Codes and Stat.(1886), II, secs. 73, 74, pp. 26, 27; but, in addition, the state registration law requires every person solemnizing marriages to keep a "registry," and "quarterly" to submit to the county clerk a certified copy of it:ibid., I, secs. 3074, 3077, pp. 460, 461.[1513]So by the act of Feb. 15:Pub. Laws of N. J.(1888), 52 ff., as amended by that of March 29:Pub. Laws(1892), 351; both inGen. Stat.(1896), II, 2011, 2012.[1514]The period within which the certificate must be returned to the probate judge was formerly ninety days:Ann. Stat. of Ohio(1897), II, 3017; but by the act of April 25, 1898, it is fixed at thirty days:Laws(1898), 309-11.[1515]By the act of March 1, 1893, amending that of June 23, 1885:Pepper and Lewis,Digest(1896), II, 2880, 2881, 2883.[1516]Stat. of S. D.(1899), II, 1021, 1023.[1517]A period within which the return is to be made does not seem to be fixed: Act of April 29:Laws of Wis.(1899), 530.[1518]Rev. Stat. of Del.(1893), 594; practically the same inibid.(1874), 472-74.[1519]The Pennsylvania act of 1849 requiring a transcript of the marriage record to be given to the person applying therefor, on payment of the prescribed fee, still appears to be in force:Pepper and Lewis,Digest(1896), II, 2879.[1520]Both Oregon and Washington allow the solemnizer to keep the license, the clerk or auditor first recording the facts contained therein:Codes and Stat. of Ore.(1902), II, 1684;Ann. Codes and Stat. of Wash.(1897), I, 1177, 1178.[1521]See the act of April 7, 1881:Laws, XVI, chap. 381; act of March 13, 1879, amended and republished, April 11, 1893:Rev. Stat.(1893), 296-98, 405-8.[1522]Act of Feb. 15:Pub. Laws of N. J.(1888), 52 ff.; act of March 29:ibid.(1892), 351;Gen. Stat.(1896), II, 2006-12, 1634, 1635 (board of health); act of Feb. 27, 1901:Acts of N. J., 36.[1523]The law does not apply to cities of the first class nor to those of the second class, Grades 1, 2, and 3a. Special provision is made for a board of health in Cincinnati (cities of the first grade of the first class):Bates,Ann. Rev. Stat.(1897), I, 97, 978, 979.[1524]Cf.act of 1867:Pub. Acts(1867), 266; that of 1869:ibid.(1869), 214;ibid.(1899), 67, 68; andHowell,Gen. Stat., 1, 96, 276-80, 464;Comp. Laws(1899), II, 1451 ff.[1525]Cf.Acts(1852), 763-69;Rev. Stat.(1858), 618-22;Ann. Stat.(1889), I, 648-52;Laws(1897), 373;Wis. Stat.(1898), I, 1055, 785 ff.[1526]Deering,Codes and Stat.(1886), I, 442 ff., 460 ff.[1527]Cf.the act for registration of births, marriages, and deaths:Laws(1847), chap. 152, repealed byLaws(1885), chap. 270;Laws(1880), chap. 322; andRev. Stat.(1889), II, 1205, 1207, 1209, 1195-98 (state board), IV, 2610, 2611 (clauses relating to New York city).In general, to trace the history of the topics treated in this subsec.c), consult the last note in subsec.b).

[1468]A bigamous marriage is ground for divorce in Colorado:Mills,Ann. Stat., III, 4341.

[1469]SeeAmendments to the Civil Code of Cal.(1897), sec. 61.Cf.secs. 82-84 ofDeering,Codes and Stat.(1886), II, 22, 28, 30. In New York the same exception is made when either spouse has been "finally sentenced to imprisonment for life":Rev. Stat.(1827-28), 139;ibid.(1889), IV, 2596.

[1470]Bates,Ann. Rev. Stat. of Ohio(1897), III, 3220;Myers,Rev. Stat. of Ill.(1895), 445.

[1471]Laws(1896), 128, 129, 271, 272.

[1472]In Pennsylvania force or fraud in the marriage is a ground for divorce:Pepper and Lewis,Digest(1896), I, 1635;ibid.(1902), II, 1830.

[1473]Stover,Code of Civil Proced.(1892), II, 1627.

[1474]In Idaho, Michigan, Minnesota, Nebraska, New York, Oregon, Utah, Wisconsin, and Wyoming these marriages are not voidable when there has been subsequent voluntary cohabitation; in New York, Oregon, and Washington they are voidable only at the suit of the injured party; and in New York, only on a decree rendered during the lifetime of the parties.

[1475]In Idaho a marriage is voidable for unsound mind, unless after the removal of the disability the parties freely cohabited; but in Iowa, when either party was impotent, insane, or an idiot, a marriage is not declared void by the statute, but provision is made for its annulment:McLain,Ann. Code(1888), I, 897. By the law of Michigan, such a marriage is voidable, if solemnized in the state; but there, as also in New York, Nebraska, and Wyoming, in case of lunacy, a marriage is not voidable when the parties have freely cohabited after the lunatic recovered.

[1476]By the Indiana law such voidable marriages shall be declared void on application of the incapable party, and the children thereof shall be legitimate. The same is true in Kansas, but there cohabitation after incapacity ceases is a sufficient defense to the action for annulment. The law of Minnesota is similar. In Nevada and Nebraska a marriage is "not voidable for want of age, if after attaining the age of consent the parties for any time freely cohabited; nor for want of understanding, if after restoration to reason" they so cohabited. According to the New York statute a marriage is "not voidable on account of want of age at suit of the party who was of age of consent; nor where it appears that the parties after attaining such age freely cohabited; nor of a female under sixteen years of age if she had parental consent to the marriage," or when she ratified it after reaching that age. The law of Oregon is practically the same. In Michigan and Wyoming a marriage of persons below the age of consent is void if they separate during nonage and do not afterward cohabit.

[1477]In Nebraska, New York, and Wyoming an action for annulment on the ground of impotence must be brought in two years; while for this cause in Colorado, Indiana, Illinois, Oregon, and some other states a "divorce" will be granted. Physical incapacity is cause for divorce in Michigan; and suit to "annul" a marriage on this ground must be brought within two years:Miller,Comp. Laws(1899), III, 2664.

[1478]By the Ohio law marriages "contracted by male persons under the age of eighteen and females under the age of fourteen [now sixteen] are invalid, unless confirmed by cohabitation after arriving at those ages respectively; and such marriage, not so confirmed, does not subject a person to punishment for bigamy for contracting a subsequent marriage while the first husband or wife is living": see Shafherv.State, 20Ohio Reports, 1.

[1479]California does not directly prohibit the intermarriage of whites and Chinese; but the county clerk is commanded not to "issue a license authorizing the marriage of a white person with a negro, mulatto, or Mongolian":Deering,Codes and Stat.(1886), II, 25, sec. 69.

[1480]UntilLaws of Ore.(1893), 41, "Kanaka" blood was included in the prohibition.Cf.Codes and Stat.(1902), II, 1681, 1682; I, 274.

[1481]Laws(1883), 16; also inHowell,Gen. Stat.(1883), II, 1619; and retained in the act of June 15:Pub. Acts(1899), 387.

[1482]Pub. Acts of Mich.(1899), 387, 388 (June 15). The law applies to "syphilis and gonorrhœa."

[1483]"No woman under the age of forty-five (45) years or man of any age, except he marry a woman over the age of forty-five (45) years, either of whom is epileptic, imbecile, feeble minded, or afflicted with insanity, shall hereafter intermarry, or marry any other person within this state."—Gen. Laws of Minn.(1901), 334, 335.

[1484]Session Laws of Kan.(1903), 373, 374.

[1485]Except that in Delaware, if the parties to any marriage prohibited for consanguinity or affinity, or for miscegenation, "although the same may have been solemnized in another state, shall cohabit as husband and wife in this state, they shall each be deemed guilty of a misdemeanor and upon conviction thereof shall be fined $100."—Rev. Stat.(1893), 593.

[1486]Deering,Codes and Statutes(1886), II, sec. 1676, p. 311.

[1487]Ibid., sec. 710, p. 171; according to the amendment of March 30, 1874:Amendments to Codes(1873-74), 218. This provision "leaves no doubt but that the limitation of an estate to a widow so long as she remains unmarried is good;" and the "rules which govern a devise in restraint of a widow's marriage, apply to like devise in restraint of a widower's marriage: Bostwickv.Blades, 4Am. Law Rec., 729 (Md. Ct. of App.)." SeeEditor Deering'svaluable note inCodes and Stat., II, 171, where cases are cited.

[1488]The history of the various topics treated in this sectionb) for the several states may be traced as follows: (1) California:Stat.(1850), 424, 425;Comp. Laws(1853), 175-77;Acts Amendatory of the Codes(1873-74), 181 ff.;Stat.(1880), 121 ff.;Deering,Codes and Stat.(1886), II, 18-37;Amendments to Codes(1895), 121; (2) Colorado:Sess. Laws(1861), 313;ibid.(1864), 108 ff.;Gen. Laws(1887), 611-13;Gen. Stat.(1883), 690-94;Mills,Ann. Stat.(1891), II, 1675 ff.; (3) Delaware:Rev. Stat.(1893), 593, 594; (4) Idaho:Laws(1863-64), 613 ff.;ibid.(1864), 397;ibid.(1867), 71-73;Comp. and Rev. Laws(1875), 642-45;Gen. Laws(1889), 40, 278-80;Rev. Stat.(1887), 301-3; (5) Illinois:Hurd,Rev. Stat.(1898), 630, 577, 1067-69; (6) Indiana:Laws of the State(1897), 129;Indiana Stat.(1896), II, secs. 5324 ff.; (7) Iowa:Code(1860), 747;ibid.(1873), 628;ibid.(1897), 1123-25, 1940; (8) Kansas:Stat.(1855), 488, 489;Laws(1857-58), 326;Gen. Laws(1859), 563, 564;Laws(1870), 157, 158;Webb,Gen. Stat.(1897), II, 637 ff., 301, 339; (9) Michigan:Laws of the Ter.(1871-84), I, 30-32, 202, 203, 646-49; II, 412-14; III, 1191, 1192;Howell,Gen. Stat.(1882-90), II, 1618-20;Comp. Laws of Mich.(1899), III, 2645-52; (10) Minnesota:Rev. Stat.(1851), 270-72;Gen. Stat.(1866), 406-8;Wenzell and Lane,Gen. Stat.(1894), I, 1264-66; (11) Montana:Comp. Codes and Stat.(1895), 474-78; (12) Nebraska:Laws(1855), 209-11;ibid.(1856), 150-52;Stat.(1867), 254-57;Comp. Stat.(1899), 756-58; (13) Nevada:Laws(1861), 93-96;ibid.(1867), 88, 89;ibid.(1881), 107, 108;Comp. Laws(1900), 112-15; (14) New Jersey:Laws of the State(1800), 158-60;Gen. Stat.(1896), II, 2003-6; I, 1064, 1066; (15) New York:Rev. Stat.(1829), II, 138-41;ibid.(1889), IV, 2596-98;Stover,Code of Civil Proced.(1892), II, 1627, 1632 ff.;ibid.(1902), II, 1830-35; (16) North Dakota:Laws(1890), 276-79;ibid.(1891), 228, 229;Rev. Codes(1895), 608-11;Revised Codes(1899), 692-95, 1440, 1441, 1454, 1455; (17) Ohio:Chase,Stat. of Ohio and N. W. Ter.(1833-35), I, 101, 102, 126, 354, 355, 672, 673; II, 1407, 1408;Bates,Ann. Stat.(1897), II, 3015-18, 2211; III, 3220; (18) Oregon:Laws(1843-49), 36, 80, 81;Stat.(1853-54), 492-94;Code of Civil Proced. and Other Gen. Laws(1862), 85-88;Codes and Gen. Laws(1892), II, 1317 ff.; I, 967; Act of Oct. 24, 1866:Acts and Res.(1866), 10, 11; (19) Pennsylvania:Pepper and Lewis,Digest(1896), II, 2878-83; (20) South Dakota:Stat.(1899), II, 1018-25, 1917;Rev. Codes(1903), 596-99; (21) Utah:Laws(1888), 88-91;Rev. Stat.(1898), 329-31; (22) Washington:Stat. of the Ter.(1854), 404, 405;ibid.(1865-66), 80-85;Ann. Codes and Stat.(1897), I, 1174-78; II, 1952; (23) Wisconsin:Stat. of the Ter.(1838-39), 139, 140;Rev. Stat.(1849), 391-93;Ann. Stat.(1889), I, 1354-56;Wis. Stat.(1898), I, 1692-94; (24) Wyoming:Rev. Laws(1870), 458-61;Rev. Stat.(1887), 415-17;ibid.(1899), 790-92, 1213; (25) Alaska:U. S. Statutes at Large, XXXI, 494, 495. Laws since 1899 are cited in the previous footnotes.

[1489]Following is the form of the marriage-license bond: "That if there shall not hereafter appear any lawful let or impediment, by reason of any precontract, consanguinity, affinity, or any other just cause whatsoever, but that (the parties) may lawfully marry; and that there is not any suit depending before any judge, ecclesiastical or civil, for or concerning such precontract, and also if the said parties, and each of them, are of the ages aforesaid, to wit, female of eighteen and male of twenty-one years, and are not under the tuition of his or her parents, or have the full consent of his or her parents or guardians, respectively, to the said marriage; and if they, or either of them, are not indented servants and do and shall save harmless, and keep indemnified the president and his successors, for and concerning the premises, and shall likewise save harmless and keep indemnified the minister or preacher of the gospel, who shall join the said parties in matrimony, for or by reason of his so doing; then the obligation to be void, else to remain in full force; which said bond shall be filed of record in the office of the secretary."-Laws of Del.(1797), II, 974, 975.

[1490]By act of June 15, 1793: inLaws of Del.(1797), II, 1127, 1128.

[1491]Rev. Stat.(1893), 103.

[1492]Ibid., 594; andcf.ibid.(1874), 473.

[1493]Chase,Stat. of Ohio and the N. W. Ter.(1833-35), I, 101.

[1494]Act of April 4, 1803;Chase,Stat., I, 354, 355.

[1495]It is omitted in the act of Jan. 6, 1824:Chase,Stat., II, 1407, 1408; nor does it appear inSwan,Stat.(1854), 569 ff.

[1496]Ann. Rev. Stat.(1897), II, 3016.Cf.the act of Feb. 16, 1810:Chase,Stat., I, 672, 673. See the act of April 25, 1898, requiring a statement under oath from persons applying for license; also evidence of parental consent in case of minors; and allowing the parent or guardian, when non-resident, to appear before a judge of a court of record in the county where he is domiciled, and give his consent in writing; such written consent must be attested by two witnesses, certified to by the judge, and be forwarded to the probate judge of the county where the license is to be issued:Laws(1898), 309-11.

[1497]Laws of the Ter. of Mich.(1871-84), I, 30-32.

[1498]Ibid., I, 646-49.

[1499]Cf.Rev. Stat. of N. Y.(1827-28), 140: andibid.(1889), IV, 2597.

[1500]Acts of N. J.(1897), 378.

[1501]See above, subsec.a) andcf.Laws of N. J.(1800), 158 (act of 1795) withGen. Stat.(1896), II, 2005;Pub. Laws(1889), 139. The celebrant may administer an oath as to residence to either party;Acts(1900), 327, 328.

[1502]Seein reMarriage License Act, 15Pa. C. C., 345 (1894); andPepper and Lewis,Digest, II, 2881, note.

[1503]Laws(1885), 146;ibid.(1893), 27;ibid.(1887), 170;Pepper and Lewis,Digest(1896), II, 2878-83.

[1504]Gen. Stat. of Minn.(1894), I, 1264, 1265.Following is the form of license or "certificate" in Colorado: "Know all men by this Certificate, that any regular ordained minister of the Gospel authorized by the rules and usages of the Church or denomination of Christians, Hebrews, or religious body of which he may be a member, or any judge or justice of the peace to whom this may come, he not knowing of any lawful impediment thereto, is hereby authorized and empowered to solemnize the rites of matrimony between .... of .... of the county of .... Previously married? .... Wife deceased? .... Divorced? .... When? .... Where? .... On what grounds? .... And .... of .... of the county of .... Previously married? .... Husband deceased? .... Divorced? .... When? .... Where? .... On what grounds? ...."—Mills,Ann. Stat. of Col.(1891), III, 828.

[1504]Gen. Stat. of Minn.(1894), I, 1264, 1265.

Following is the form of license or "certificate" in Colorado: "Know all men by this Certificate, that any regular ordained minister of the Gospel authorized by the rules and usages of the Church or denomination of Christians, Hebrews, or religious body of which he may be a member, or any judge or justice of the peace to whom this may come, he not knowing of any lawful impediment thereto, is hereby authorized and empowered to solemnize the rites of matrimony between .... of .... of the county of .... Previously married? .... Wife deceased? .... Divorced? .... When? .... Where? .... On what grounds? .... And .... of .... of the county of .... Previously married? .... Husband deceased? .... Divorced? .... When? .... Where? .... On what grounds? ...."—Mills,Ann. Stat. of Col.(1891), III, 828.

[1505]Act of March 14, 1895: inComp. Codes and Stat.(1895), 476.

[1506]In Michigan a girl under eighteen must bring written consent of parent or guardian before license will be issued:Pub. Acts(1895), 536, 537.

[1507]Act of April 29:Laws of Wis.(1899), 529-31;cf.the act of 1903:Laws, 477, 478.

[1508]The judge of probate must issue a license without publicity to a "female making application to him, under oath, containing a statement that she is with child, which if born alive before her marriage will become a bastard, or has lived with a man," etc. With consent of parent or guardian, such judge is empowered to marry persons under marriageable age, making such a statement, whenever he believes the marriage "would be a benefit to public morals." He is required to "file a complete set of all papers in each case in a private file, and shall within ten days after the marriage forward the duplicate thereof to the secretary of state, who shall file such duplicate in a private file and record the same in a private register." These private files of the probate judge and secretary of state "shall be open to inspection only upon the written order of the judge of any circuit or the supreme court of this state, and only for such use as is designated in such order. Such order shall be made only upon the written request of the person or persons who were so married, or when necessary to the protection of property rights arising from or affected by such marriage."—Pub. Acts of Mich.(1897), 230, 231;ibid.(1899), 363, 364.

[1509]Return is made to the designated officer of the county (or town) where the license was issued, in Idaho (1899), Kansas, Michigan, Montana, Nebraska, Nevada (1899), and Utah; but where the marriage was solemnized, in California, Delaware, Illinois, Indiana, Minnesota, North Dakota, Washington, Wisconsin, Wyoming, and Iowa. The Pennsylvania act of 1893 requires the return to be made to the clerk of the orphans' court in the county where the marriage was solemnized; and this, doubtless, supersedes the law of 1885, which designates for this purpose the county from which license was issued, and which also appears inPepper and Lewis,Digest(1896), II, 2880, 2881, 2883. By the Ohio act of April 25, 1898, return is made to the probate judge of the county where the license was issued, or where the congregation in which publication of banns was made is located, or where the marriage was celebrated:Laws(1898), 309-11. Of course, the county of issue of license and the county of celebration are usually the same. In Oregon return is made both to the county clerk issuing the license and to the clerk of the county of the marriage:General Laws(1903), 99, 100.

[1510]Statutes of S. D.(1899), II, 1023;Rev. Codes of S. D.(1903), 598;Mills,Ann. Stat. of Col.(1891), II, 1679;Code of Iowa(1897), 1124, 1125;Amendments to the Civil Code of Cal.(1873-74), 187;Deering,Codes and Statutes(1886), II, 27, 28; Act of 1897:Amendments to the Civil Code, sec. 79½, p. 186.

[1511]Rev. Stat. of N. Y.(1889), IV, 2598; the same inRev. Stat.(1827-28), 140, 141.

[1512]In California the original license, with the certificate of solemnization indorsed and attached must be filed with the county recorder in thirty days:Deering,Codes and Stat.(1886), II, secs. 73, 74, pp. 26, 27; but, in addition, the state registration law requires every person solemnizing marriages to keep a "registry," and "quarterly" to submit to the county clerk a certified copy of it:ibid., I, secs. 3074, 3077, pp. 460, 461.

[1513]So by the act of Feb. 15:Pub. Laws of N. J.(1888), 52 ff., as amended by that of March 29:Pub. Laws(1892), 351; both inGen. Stat.(1896), II, 2011, 2012.

[1514]The period within which the certificate must be returned to the probate judge was formerly ninety days:Ann. Stat. of Ohio(1897), II, 3017; but by the act of April 25, 1898, it is fixed at thirty days:Laws(1898), 309-11.

[1515]By the act of March 1, 1893, amending that of June 23, 1885:Pepper and Lewis,Digest(1896), II, 2880, 2881, 2883.

[1516]Stat. of S. D.(1899), II, 1021, 1023.

[1517]A period within which the return is to be made does not seem to be fixed: Act of April 29:Laws of Wis.(1899), 530.

[1518]Rev. Stat. of Del.(1893), 594; practically the same inibid.(1874), 472-74.

[1519]The Pennsylvania act of 1849 requiring a transcript of the marriage record to be given to the person applying therefor, on payment of the prescribed fee, still appears to be in force:Pepper and Lewis,Digest(1896), II, 2879.

[1520]Both Oregon and Washington allow the solemnizer to keep the license, the clerk or auditor first recording the facts contained therein:Codes and Stat. of Ore.(1902), II, 1684;Ann. Codes and Stat. of Wash.(1897), I, 1177, 1178.

[1521]See the act of April 7, 1881:Laws, XVI, chap. 381; act of March 13, 1879, amended and republished, April 11, 1893:Rev. Stat.(1893), 296-98, 405-8.

[1522]Act of Feb. 15:Pub. Laws of N. J.(1888), 52 ff.; act of March 29:ibid.(1892), 351;Gen. Stat.(1896), II, 2006-12, 1634, 1635 (board of health); act of Feb. 27, 1901:Acts of N. J., 36.

[1523]The law does not apply to cities of the first class nor to those of the second class, Grades 1, 2, and 3a. Special provision is made for a board of health in Cincinnati (cities of the first grade of the first class):Bates,Ann. Rev. Stat.(1897), I, 97, 978, 979.

[1524]Cf.act of 1867:Pub. Acts(1867), 266; that of 1869:ibid.(1869), 214;ibid.(1899), 67, 68; andHowell,Gen. Stat., 1, 96, 276-80, 464;Comp. Laws(1899), II, 1451 ff.

[1525]Cf.Acts(1852), 763-69;Rev. Stat.(1858), 618-22;Ann. Stat.(1889), I, 648-52;Laws(1897), 373;Wis. Stat.(1898), I, 1055, 785 ff.

[1526]Deering,Codes and Stat.(1886), I, 442 ff., 460 ff.

[1527]Cf.the act for registration of births, marriages, and deaths:Laws(1847), chap. 152, repealed byLaws(1885), chap. 270;Laws(1880), chap. 322; andRev. Stat.(1889), II, 1205, 1207, 1209, 1195-98 (state board), IV, 2610, 2611 (clauses relating to New York city).In general, to trace the history of the topics treated in this subsec.c), consult the last note in subsec.b).

In general, to trace the history of the topics treated in this subsec.c), consult the last note in subsec.b).

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