I have really been enjoying the book More Wives than One by Kathryn Daynes, an associate professor of history at BYU. In my previous post on the book, I mentioned that marriage wasn’t as regulated as it is today. There were no marriage licenses, blood tests, or even ceremonies required. If a couple said they were married, then courts ruled that they were. That was all that was needed. It seems that many of the marriage regulations we are familiar with today were influenced by the federal government’s efforts to stamp out Mormon polygamy. Daynes gives a history of marriage starting on page 58.
The struggle between the church and state about who would control marriage has been a long one in the Western world. By the end of the eleventh century, it was generally conceded that jurisdiction over decisions about what constituted a marriage resided with the bishop and his court. In the two centuries that followed, the Roman Catholic church enunciated its beliefs about marriage and increasintly upheld the superiority of church practice over local usage. Articulated in 1140 by the monk Gratian in his definitive Concodia discordantium canonum, these beliefs included the idea that the marital bond was indissoluble and that it was created by the free consent of the bride and groom.
Because the church wanted to make the formation of marriage effortless and easy, it followed Roman law, under which “marriage was virtually a formless transaction.” The marriage was valid if the man and woman simply exchanged vows of marriage in the present, not future, tense. As long as consent was given in the present tense, the church upheld the validity of the marriage even if there were no witnesses present, no clergy officiating, no specific form followed, or no consent given by parents. Even consummation was not necessary if consent was given in the present tense. Moreover, sexual intercourse after promises given in the future tense also created a valid marriage. Certain impediments could, however, invalidate the marriage. These included a previous commitment by blood (consanguinity) or by marriage (affinity), and being impotent or too young. With these exceptions, the church upheld the primacy of present consent between the couple over other considerations. To be sure, the church discouraged the clandestine marriage such consent might foster, and the fourth Lateran Council in 1215 stipulated that couples planning to marry announce their intentions and prohibited priests from officiating secret ceremonies.10[Daynes footnotes many texts supporting this position.]
Although the church upheld the validity of secret, informal marriages, marriages usually were performed publicly and contracted in some ritual. This was so not only because the church could punish couples marrying secretly even if it did not invalidate the marriages but also because secular courts retained jurisdiction over property. Marriages without the consent of parents or lord could well result in the loss of an inheritance or succession to feudal lands. Thus, while the church determined what constituted a marriage, it did not control all aspects of it.11
Two problems produced inherent tensions in this marriage system. First, allowing secret, informal marriages created difficulties in knowing whether a prospective spouse was already married. Second, jurisdiction over marriage resided mainly in the church, but civil courts asserted their authority over property rights created by marriage and by birth. These inherent tensions helped produce a different set of beliefs about marriage during the Reformation. Although marriage was a divine institution, according to Martin Luther in his Babylonian Captivity, it was not a sacrament, it did not impart grace, and it was not necessary for salvation. Other reformers following Luther’s lead, and all reformed churches rejected the Catholic Church’s claim that marriage was a sacrament. With that change in belief, control over marriage could be vested in civil rather than religious courts. Reducing the clergy’s jurisdiction over moral life, Protestant governments on the Continent began requiring parental consent for minors to marry and mandating the presence of witnesses to validate a marriage.12 In response, the Catholic Church tightened regulations for marriage at the Council of Trent in 1563, requiring that the traditional exchange consent take place before witnesses, one of whom was the pastor.13
In England, however, the Reformation took a different path in regard to marriage. Because elites found that ecclesiatical courts had adequately served their interests, reformation of the English church did not included abolition of these courts. The Church of England was independent of the Roman Catholic church before the Council of Trent, so its requirement of witnesses and a pastor for a valid marriage had no force. Clandestine marriages flourished; perhaps as many as 20 percent of marriages in England in the mid-eighteenth century were clandestine. Not until 1753, with the passage of the Hardwicke Marriage Act, were such marriages curtailed.14
The Hardwicke Act was not passed until long after the American colonies had begun developing their own marriage laws. New England drew on the Reformation’s ideas about civil government’s control over marriage. Magistrates, not ministers, performed marriages there until 1686, when the Crown established its control over New England after revoking those colonies’ charters. In the South, the Church of England was the established church, but without bishops or ecclesiastical courts, civil regulation of marriages was uncontested. A variety of churches proliferated throughout the middle and southern colonies, and the marriages performed by the rites of those churches were recognized.15 With diverse religious traditions and peoples, the idea that free consent of the couple in the present tense created a valid marriage passed into the common law.
These developments, along with the movement away from government involvement prevalent in early ninetheenth-century America, elevated consent of the couple over public control of matrimony. Unlike colonial or contemporary English interpretations of the common law, American nineteenth-century courts generally validated secret and informal marriages.16 By midcentury in the United States, the opinion of James Kent, the most influential legal commentator of his time, was accepted by all but a minority of courts: “No pecular ceremonies are requisite by the common law to valid celebration of the marriage. The consent of the parties is all that is required.”17 This rule was explicitly applied to Utah in 1885, when its supreme court ruled, “The marriage is complete when there is a full, free and mutual consent of the contracting parties. They may enter into the marriage relation secretly, and the fact may be unknown to all save the man and woman… [A] couple may meet on the highway at any time in the day or night and there contract a valid marriage…[n]o particular form or ceremony being essential, and no witness being required.”18 Thus, no specific form for solemnizing a marriage was necessary to make it valid, as long as both bride and groom consented to the marriage.19 Nor were witnesses required. Not until 1888 did the law in Utah mandate that two witnesses sign the marriage certificate. That law also declared that marriages not solemnized by an authorized person were void, thus nullifying common law marriages.20
This explains the more cavalier marriage performed by the bishop that I related in my previous post about Fred Cox and Lucy. I have found it interesting that Utah divorce laws were as liberal as the marriage laws, and I plan a future post on that topic. I have found 19th century beliefs about romantic love strange as well. Daynes says that consent was the most important aspect of marriage, and says that romantic love was downplayed by all groups during this time period. From page 64,
Believing the religious aspect of marriage was most crucial, Mormons downplayed the role of romantic love. In 1853, Orson Pratt wrote that love was not “such as is often described in novels, which acts irresistibly, forcing all the other powers of the mind into subjection.” Charles C. Rich was even more pointed in his criticism of romantic love in 1877: “When a person is love struck, there is no reason in them. We should never be struck very bad.”37
This nineteenth-century view of romantic love that set the couple apart from the community and tended to displace God was hardly compatible with Mormon beliefs. “Never love you wives one hair’s beadth further than they adorn the Gospel,” Brigham Young preached. “Never love them so but that you can leave them at a moment’s warning without shedding a tear.”39 Love was supposed to be guided by and subordinated to religous purposes.
To be sure, love was crucial to marriage. “No woman should be united in marriage with a man unless she have some love for him,” Orson Pratt wrote, but he added, “Any woman who loves righteousness can and does love a man who works righteousness; and she can, but cultivating this love, be happy in his society, as a friend and as a brother; and if she were united to him in marriage, she could love him as a husband;”
Daynes talks about how consent is critical to the Mormon marriage ceremony, and compares these ceremonies to common law. From page 65,
Although free consent was crucial, under the common law no particular form of ceremony was required, nor was public notification of the marriage. The early nineteenth-century republican ethos combined with the social conditions in America to weaken state regulation.44 As an 1816 Pennsylvania court decision stated, “We have no established church. A certificate of the bishop, therefore is out of the question. We have no law compelling the keeping of a register by all persons who perform the marriage ceremony. Our marriages are celebrated sometimes by clergymen, sometimes by justices of the peace and sometimes before witnesses without the intervention of clergymen or justices…Many marriages take place in parts of our country but thinly settled. To hold a woman, therefore, to proof of her actual marriage might be productive of great inconvenience, without any advantage.”45 As this judgment indicates, registration of marriages was not compulsory. Americans were averse to state intervention into private affairs, which is what registration of marriages meant to many.46
With no law regulating marriage, Utah also had no registration system outside the church. After a sealing ceremony, a scribe was supposed to enter the date of the marriage as well as the names of the witnesses.47 The record was not public, however. In the 1880s, when the U.S. commissioner of labor compiled statistics on marriage and divorce in America, he could not obtain even the number of marriages performed by church officials. Nor are these records available to scholars.49
Daynes continues this discussion in Chapter 4. On page 67,
Unreliable public records made it difficult for many couples to substantiate their marriages, but American courts accepted into common law the rule that a marriage could be presumed from the cohabitation, reputation, and acknowledgment of the couple.1 On the whole, midcentury law in America encouraged marriage. Because most judges required no particular form of ceremony or a record of it to presume a marriage or a record of it to resume a marriage, they put the weight of the law behind those living as husband and wife. Moreover, both Georgia and Pennsylvania passed laws stating that marriage was encouraged. In Utah, marriage was encouraged not only by the continual preaching from teh pulpit but also by the lack of legal barriers to it.
Although the Utah legislature enacted no laws legalizing plural marriage, it did pass a measure stating, “No laws nor part of laws shall be read, argued, cited, or adopted in any court, during any trial, except those enacted by the Governor and Legislative Assembly of the Territory, and those passed by the Congress of the United States when applicable; and no report, decision, or doing of any court shall be read, argued, cited, or adopted as precendent in any other trial.”4 Because precendent is the basis for the common law, this measure disallowed the authority of the common law in the territory. Since the common law prohibited bigamy, rejection of common law at least tacitly was in force was in considerable dispute because of the judicial decisions made by non-Mormon judges.
Except for permitting plural marriage, Mormon practice was generally congruent with the contemporary common law in its lack of restrictions on marriage. Following Roman law, under common law the age of discretion, the age at which a valid marriage could be contracted was twelve for females and fourteen for males. A marriage contracted by an individual under age seven was a complete nullity. Although individuals could contract a marriage between age seven and the age of discretion, they could also disaffirm the marriage at any time before reaching the age of discretion. Such disaffirmation could be either private or public, that is with or without a judicial decree declaring the marriage invalid.5 Although under common law parental control continued until the child turned twenty-one, most American judges gave greater weight to the sanctity of marriage than to parental disapproval. Judges in the United States often rendered legislation raising the age for marriage ineffective by treating such laws as advisory, not compulsory. In Utah, if any restrictions on age prevailed, they were common-law ages of discretion, until 1888 when those ages were incorporated into the Act Regulating Marriage. Only in 1897 were the ages raised to fourteen for females and sixteen for males.6
The next few paragraphs are incredibly interesting in describing some early Mormon marriage practices, but I want to state a few more facts in relation to Congress. From page 86,
This de facto recognition of plural wives changes as Congress stepped up its campaign against polygamy in the 1880s. Polygamy, along with those consanguineous marriages that many considered incestuous, had become symbols of family crisis in America. Reformers ralled behind legislation requiring marriage licenses, raising the statutory age of marriage, banning marriages between blood relatives, and curtailing plural wives’ ability to inherit from their husbands. Even the courts began to soften their support for informal matrimony amid the reformers’ fears of free love and “rampant Mormonism.” Polygamy, a “prime instigator” of the social climate that produced these reforms, became one of the first targets for change.107
During the 1880s, the federal government dismanted the entire system the Mormons put in place in the 1850s to protect plural marriage. Not only were the polygamous families excluded from inheriting from intestate estates, but also Congress passed laws regulating marriage and mandating registration of marriages. By enforcing these laws, by taking the selection of judges out of the hands of Mormons, and by attacking the church itself, the federal government was also able to curtail the church’s influence over the civil courts and to diminish the ecclesiastical courts’ control over family issues.
I had no idea that the Mormon practice of polygamy led to many of the regulations of marriage practices today. Were you aware of this?