First of all, the statutes relating to the preliminaries of marriage ought to be overhauled. Already during the past century progress has been made. Within the last two decades in particular many reforms in matters of detail have been carried out in various states. Furthermore, in the broad features or outlines of the law throughout the country an approximation to a uniform system has been attained; and this fact may be of great significance when the task of securing absolutely the same law for all the states is earnestly taken in hand. Thus there is practical agreement among the states and territories in requiring a license from a local civil officer before a marriage may be legally celebrated. The dual system of banns or license survives only in Maryland, Georgia, Delaware, and Ohio. All the other states and territories, except Alaska, New Mexico, and South Carolina, where there is no statute governing the subject, with New York and New Jersey, where there is a substitute plan, have each adopted a system of civil license or certificate, the same in its purpose, though varying widely in the forms and procedure prescribed. This is a stride in the direction at once of simplicity and harmony; and besides, for its own sake, it is well to get rid of the ancient device of oral banns, which has proved as unsatisfactory in America as in the Old World. Again, we have developed substantially a common statutory law regarding the manner of entering into the marital relation. Everywhere, except in Maryland and West Virginia, where a religious ceremony is essential to a valid union, the optional civil or religions ceremony, at the pleasure of the persons contracting, is sanctioned by the law. As already seen, this dual system has its roots planted deeply in the history of two centuries. It is clearly entitled to be regarded as the American plan; although since 1836, with important modifications, it has also been accepted in the British Isles. It does not follow, however, that it is the ideal plan. It is too complex; and it is an obstacle in the way of developing the most efficient system of matrimonial administration. It is inconsistent with a proper social control. It will prevent the attainment of the "maximum of simplicity and the maximum of certainty" in matrimonial legislation. It is awkward, thoroughly illogical, to intrust the execution of that part of the law on which publicity and security so much depend to two different classes of persons: the one consisting of civil officers created and wholly under control of the state; the other in its origin, its personnel, and its character completely beyond such control, and only subject to administrative rules and restraints. With this system it will be very difficult to establish a proper standard of special fitness, of special knowledge, such as is highly needful to exact from public servants intrusted with functions of vast social importance. European peoples have reached a wiser solution of the problem in prescribing in all cases without exception, as the prerequisite of a valid marriage, the obligatory celebration before an authorized civil officer, leaving the wedded pair to decide, as wholly a private matter, whether a religious ceremony shall be added.
Literature Digest
A History of Matrimonial Institutions, Volume 3 (of 3) — Part 146
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