Marriage, the Contract Ideal, and the Public Interest

Unlike England, where ecclesiastical courts had jurisdiction over marriage, in the United States nuptials were a thoroughly secular rite, though one shaped by prevailing moral values. The blending of moral authority and the public interest was particularly important in two areas: the regulation of the wedding ceremony and the designation of persons considered fit to marry. In the nineteenth century, "state after state shifted from an initial promotion of individual rights through eased matrimonial regulations to the imposition of greater controls over those seeking matrimony." ⁹

Celebration of Marriage

Colonial fathers regulated their children's marriage behavior, because children were a form of property and their marriage raised direct economic interests. Marriage was also important for the community as a whole, which depended on successful unions for growth and stability. Engaged couples were required by law to initiate a community informational system by publishing banns, which are declarations of an intent to marry that were posted in a conspicuous place. Some colonies also required couples to secure

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a license, a measure that not only alerted the community of their impending action but, because a fee was required, also gave evidence of their financial capacity.

Marriages were celebrated in two secular forms. The first was a civil ceremony (though sometimes performed by a religious official as an agent of the state); the other was irregular or common law marriage. Today, the popular meaning of common law marriage implies an immoral practice, but in early American law irregular marriage had a different meaning. It was a verbal agreement between two people to consider themselves husband and wife, followed by cohabitation. Almost all nineteenth-century states recognized it, and it was as legally binding as a ceremony carried out before an official authorized by the state.

In the fluid, frontier environment of the new nation, common law marriages were crucial to establishing property rights and the legitimacy of births, and judges extended full recognition to them. The leading case was Fenton v. Reed ( 1809), decided by James Kent, chief justice of the New York Supreme Court. Kent subsequently became chancellor of the state and, along with Joseph Story, the century's most influential law writer. In the suit, Elizabeth Reed sought judicial validation of her second common law marriage so that she could collect her husband's Revolutionary War pension. Her first spouse, John Guest, had deserted her, and, believing him dead, she moved in with Reed. Some time later Guest returned, but he died without reclaiming Elizabeth. Elizabeth continued to live with Reed until his death.

Kent declared that Elizabeth had lived in bigamy during the time she was married to both Guest and Reed. But he held that after Guest's death, Elizabeth and Reed were husband and wife. "No peculiar ceremonies are requisite," Kent subsequently explained in his Commentaries, "by the common law to the valid celebration of the marriage. The consent of the parties is all that is required . . . by natural or public law." ¹⁰ Kent believed that through voluntary action couples were most likely to bind themselves successfully, and he regarded marriage as a private rather than a public act that appellate judges were especially well equipped to superintend. Only a minority of courts in New England and the upper South rejected Kent's ruling.

Most state appellate judges before the Civil War accepted the economic necessity of common law marriage, and they readily embraced the Fenton principle. They refused to upset established patterns of cohabitation and to entangle family property rights in order to uphold public regulatory authority. Colonial Pennsylvania, for example, had established rigid marriage laws, that included an admonition to the citizens of the state to marry and bear children. But in 1833 Chief Justice Gibson ruled that they were "ill adapted to the habits and customs of society as it now exists," and that to end common law marriages "would bastardize the vast majority of children which have been born within the state for half a century." ¹¹

The behavior of antebellum legislators had the long-term effect of undermining common law marriage by making a civil ceremony easier to obtain. They lowered fees and authorized a widening number of religious leaders, municipal officials, and judicial officers to perform marriages. The marriage license remained the primary method of public regulation, but it was interpreted by courts to be an administrative aid "to register, not to restrict marriage." ¹²

Social reformers after the Civil War claimed that the absence of state regulation of nuptial rights had contributed to a marriage crisis that massive immigration and industrialization had aggravated. Common law marriage had worked, they concluded, only because the population was relatively homogeneous and agrarian.

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The scientific eugenics movement, which had its heyday between 1880 and 1920, contributed a sense of urgency to demands for marriage reform. Eugenicists claimed that crime, mental illness, and social disorder generally had biological bases. They promised that, through the scientific control of heredity, it was possible to eliminate these problems eventually. Eugenicists cloaked prevailing fears about racial and ethnic pollution of the population in neutral, scientific language. The attorney Joseph Chamberlain, an avid proponent of greater state supervision of the marriage ceremony, declared that the efforts to regulate marriage practice were "not based on historic rules or race feelings but on scientific fact." ¹³

State legislators coupled the eugenicists' arguments with the concept of the rights of the public to justify intervention with the traditional private contractual basis of marriage. Licensing reemerged as one important means of social control. Couples had not only to submit themselves to a public official, but they had also to provide vital information for statistical purposes. Although licensing requirements varied from state to state, their effect was to discourage irregular marriage by denying property and birth rights. Mississippi in 1892 enacted the stiffest law. It held marriages void if celebrated without a license, and thereby eliminated a long-standing statutory basis for common law marriages. By 1906 only New York and South Carolina lacked code provisions requiring a license before a wedding.

The traditional practice of publishing banns had all but died out by the early twentieth century. Legislators replaced them with new laws that required couples to give notice followed by a waiting period, usually three days, before a license would become valid. Maine, in 1849, was the first state to prescribe this practice, and a century later more than one-half of the states had adopted it.

Common law marriage remained an option in most states, although code provisions made it unattractive and appellate judges chipped away at its once-secure foundations. Couples could no longer openly defy legislative dictates and expect the judiciary to support them based on common law principles. The Kansas Supreme Court, in the leading case of State v. Walker ( 1887), concluded as much. The judges sustained the conviction of E. C. Walker and Lillian Harman for illicit cohabitation because the bride and groom had openly denied "the right of society, in the form of church and state, to regulate" marriage. ¹⁴

Date: 2015-01-29; view: 830