SECTION 26. Definition of marriage. 27. Consent, how proved. 28. Persons capable of marriage. 29. Consent must be given to a present marriage. 30. Certain marriages incestuous. 31. Certain marriages, when to be deemed void. 32. Polygamy forbidden. 33. Conjugal rights, &c., not restored by pardon. 34. Mode of authenticating marriages. 35. Form of marriage. 36. Duties of the officer before whom a marriage is solemnized. 37. Solemnizing a marriage of persons disqualified by non-age or insanity is a misdemeanor. 38. Certificate to be given to either contracting party, if desired. 39. The certificate. 40. The entry thereof. 41. Authentication of the certificate. 42. Certificate, entry, &c., evidence. 43. Marriages of Indians. Definition of marriage. Consent, how proved. Persons capable of marriage. Consent must be given to a present marriage. Certain marriages § 26. Marriage is a personal relation, arising out of a civil contract to which the consent of parties capable of making it is alone necessary. By 2 R. S., 138, § 1, marriage is declared to be a civil contract to which consent is necessary; but whether anything more than consent is necessary has been mooted; some authorities deeming that either consummation or solemnization is also requisite. Jaques v. Public Administrator, 1 Bradf., 499; and see 1 Parsons on Contracts, 560. This provision makes consent alone sufficient, and this is in accordance with the views declared in Starr v. Peck, 1 Hill, 270, and Jackson ". Winne, 7 Wend., 47. § 27. The consent may be proved like any other fact. Starr v. Peck, 1 Hill, 270; Clayton v. Wardell, 4 N. Y., 230. 28. Any unmarried male of the age of fourteen years or upwards, and any unmarried female of the age of twelve years or upwards, and not otherwise disqualified, is capable of giving such consent; subject, however, to the provision of subdivision 3 of section 42 of this Code. NOTE.-Bennett v. Smith, 21 Barb., 439. The reference is to the provision below, allowing a divorce where 2 female is married under fourteen against consent of parent or guardian. § 29. The consent must be to a present marriage, commencing instantly, and not an agreement to marry afterwards. Cheney v. Arnold, 15 N. Y., 345. § 30. Marriage between parents and children, including Incestuous grandparents and grandchildren of every degree, ascending and descending, and between brothers and sisters of the half as well as of the whole blood, are incestuous and absolutely void and this whether the relationship is legitimate or not. 2 R. S., 139, § 3. § 31. If either party to a marriage is incapable of consent for want of age or understanding, the marriage is void from the beginning: if either is incapable, from physical causes, of entering into the marriage state, or if such con sent is obtained by force or fraud, the marriage is void from 2 R. S., 139, § 4; modified by declaring marriages of forbidden. § 32. A subsequent marriage contracted by any person Polygamy during the life of a former husband or wife of such person, is illegal and absolutely void, unless 1. The former marriage had been annulled or dissolved for some cause other than the adultery of such person; or, 2. Unless such former husband or wife had been finally sentenced to imprisonment for life; or, 3. Unless such former husband or wife was absent, and not known to such person to be living, for the space of five successive years previous to such subsequent marriage; in which case the subsequent marriage is void only from the time it is adjudged void. 2 R. S., 139, §§ 5, 6. The language of subdivision 3 has § 33. No pardon granted after the twelfth day of April, one thousand eight hundred and twenty-two, to any person sentenced to imprisonment for life in this state, restores such person to the rights of any previous marriage, or to the guardianship of any issue of such marriage. 2 R. S., 139, § 7. § 34. For the purpose of authentication, according to the provisions of this title, marriages must be solemnized only by the following persons: Ministers of the gospel and priests of every denomination; mayors, recorders and aldermen of cities; judges of the county courts and justices of the peace; and, in the case of Indians, also the peacemakers acting within their respective jurisdictions. 2 R. S., 139, § 8; applied to Indians by the Laws of 1849, Form of marriage. Duties of Solemn NOTE.-In 2 Kent's Com., 89, note, it is said that these provisions of the Revised Statutes are not laws, because by the act of 1830, which declared that marriages contracted without this form of solemnization should be valid, they no longer are required to be obeyed. They are here embodied, however, for the obvious reason that, though solemnization is not compulsory, it is optional, and the form prescribed may be and constantly is resorted to to obtain the convenient authentication which it affords of the contract. § 35. No particular form is required, but the parties must solemnly declare in the presence of the person solemnizing the marriage, and at least one witness, that they take each other as husband and wife. 2 R. S., 139, § 9. § 36. The minister or magistrate, required to solemnize a marriage must ascertain: 1. The christian and surname, and places of residence of the parties, and that they are of sufficient age to be capable of contracting marriage; 2. The name and place of residence of the witness, or of two witnesses if more than one is present. He must enter the facts so ascertained, and the date of the solemnization, in a book to be kept by him for that purpose. If either of the parties to the marriage is not personally known to him, he must ascertain, to his satisfaction, their identity. 2 R. S., 140, §§ 10, 11. § 37. Every minister or magistrate who solemnizes a riage of per- marriage where either party, within his knowledge, is under izing a mar sons dis age or in qualified by the age of legal consent, or an idiot or lunatic, or to which, within his knowledge, any legal impediment exists, is guilty of a misdemeanor. sanity is a misdemeanor. Certificate 2 R. S., 140, § 12. This may be transferred to the Penal Code. § 38. The minister or magistrate by whom any marriage is thus solemnized within this state must furnish, on request, party, if de to either party a certificate thereof, signed by him, specifying: to be given to either contracting sired. 1. The names and places of residence of the parties married, and that they were known to such minister or magis trate or were satisfactorily proved, by the oath of a person known to him, to be the persons described in such certificate, and that he had ascertained that they were of sufficient age to contract marriage; 2. The name and place of residence of the attesting wit ness or witnesses; and, 3. The time and place of such marriage; 4. The certificate must also state that, after due inquiry made, there appeared no lawful impediment to such marriage. 2 R. S., 140, § 13. cate. § 39. Such certificate may, within six months after the The certifimarriage, be filed with the clerk of the city or town where the marriage was solemnized or where either of the parties reside, and is to be entered in a book to be provided by the clerk, in the alphabetical order of the name of each party, and in the order of time in which it is filed. § 40. The entry must specify: 1. The name and place of residence of each party; 2. The time and place of marriage; 3. The name and official station of the person signing the certificate; and, 4. The time when the certificate was filed. The entry thereof. cation of cate. § 41. If the certificate was signed by a minister or priest, Authentithere must be indorsed or annexed, before filing, a certifi- the certifi cate of any magistrate residing in the same county with such clerk, that the minister, by whom it is signed, is personally known to such magistrate, and has acknowledged the execution of the certificate in his presence; or, that the execution of such certificate, by a minister or priest of some religious denomination, was proved to such magistrate, by the oath of a person known to him, and who saw the certificate executed. 2 R. S., 141, §§ 14-16. entry, &c., § 42. Such certificate, or the entry thereof made as above Certificate, directed, or a copy of such certificate or of such entry, evidence. duly certified, is presumptive evidence of the fact of such marriage. 2 R. S., 141, § 17. |