on the day of, A. D., before me, a justice of the peace, in and for the county of—, declared that she had been delivered of a bastard child for is pregnant with a child, which, if born alive, might be a bastard], and hath accused C. H., of —, in the county of laborer, of being the father of said child; and a warrant hath been issued by me on said accusation against the said C. H., and the said C. H. hath appeared, and hath been required by me to give bond to the said A. B. in the sum of dollars, with two sufficient sureties, conditioned for his appearance at a supreme judicial court next to be holden at -, in and for said county of on the day of —, A. D. —, and abide the order of said court thereon, but hath neglected and refused to give such bond:

You are, therefore, commanded to take and convey the said C. H. to our jail in -, in said county of --, and deliver him to the keeper thereof, together with this warrant. And you, the said keeper, are hereby required to receive the said C. H. into your custody in the said jail, and him safely keep, until he shall give such bond, or be therefrom otherwise lawfully delivered.

Given under my hand and seal, at —, in said county of —, this day of, in the year, &c. J. S. H., Justice of the Peace.

CHAPTER XXIV.

MARRIAGE AND ITS SOLEMNIZATION.

1. No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, sister, brother's daughter, sister's daughter, father's sister, or mother's sister; and no woman shall marry her father, grandfather, son, grandson, stepfather, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, brother, brother's son, sister's son, father's brother, or mother's brother.1

2. No white person shall intermarry with a negro, Indian, or mulatto; and no insane person or idiot shall be capable of contracting marriage.2

(a) A person having but one-sixteenth of Indian or negro

1 R. S. o. 59, § 1.-2 R. S. c. 59, § 2.

blood, is to be considered a white person; and the marriage of such a person with a mulatto, being null, their children are illegitimate.

(b) A party contesting the legality of a marriage, because of the alleged insanity of the husband at the time, has no cause for exception to an instruction, that the same degree of mind sufficient to enable him to enter into a valid contract, or to make a valid deed or will, would be sufficient to enable him to contract matrimony.*

(c) Marriage is not simply a contract, as used in that clause of the constitution prohibiting the impairing of the obligation of contracts. The contract to marry is subject to the law of contracts; but when such contract has been consummated, the rights of the parties are of law, and not of contract.5

3. All marriages, contracted while either of the parties has a former wife or husband not divorced, living, are void.6

4. All residents of this State, intending to be joined in marriage, shall cause notice of their intentions to be recorded in the office of the clerk of the town in which each resides, at least five days before a certificate of such intentions is granted; and the book, in which said record is made, shall be labelled on the outside of the cover with the words "record of intentions of marriage," and be kept open to public inspection in the office of the clerk; and if there is no such clerk in the place of their residence, the like entry shall be made with the clerk of an adjoining town."

5. The clerk shall deliver to the parties a certificate specifying the time such intentions were entered with him; and it shall be delivered to the minister or magistrate before he begins to solemnize the marriage; but no such certificate shall be issued to a male under twenty-one, or a female under eighteen years of age, without the written consent of their parents or guardians first presented, if they have any living in this State; nor to a town pauper when the overseers of a town deposit a list of their paupers with the clerk; and for any intentional violation of the foregoing prohibitions; or for falsely stating the residence of either party named in such certificate, such clerk shall be fined twenty dollars.

& Bailey v. Fiske, 34 Me. 77.4 Atkinson v. Medford, 46 Me. 510.—5 Adams v. Palmer, 51 Me. 480.-6 R. S. c. 59. § 3.-7 R. S. c. 59, § 4.-8 R. S. c. 59, § 5.

6. Whoever contracts a marriage, or makes false representations to procure such certificate or the solemnization of marriage contrary to the provisions of this chapter, shall be fined-one hundred dollars.

7. When residents of this State go into another State for the purpose of marriage, and it is there solemnized, and they return to dwell here, they shall file a certificate or declaration of their marriage with the clerk of the town, in which each of them then lived, within seven days after their return, under a penalty of ten dollars, to be recovered by any person suing therefor, one-half to his own use and the other half to the use of the town where the forfeiture is incurred.10

8. Any person believing that parties are about to contract matrimony, when either of them cannot lawfully do so, may file a caution and the reasons therefor, in the office of the clerk where notice of their intentions should be filed. Then if either party applies to the clerk to enter such notice, he shall withhold the certificate, and notify the person filing the caution, who shall, within seven days thereafter, unless the justices certify that a longer time is necessary, procure the decision of two justices of the peace, after notice to both parties, upon the sufficiency of such reasons, which shall be duly certified to said clerk, and he shall deliver or withhold the certificate accordingly. If the decision is against the sufficiency, the justices shall enter judgment against the applicant for costs, and issue execution therefor.11

9. When residents of this State, with intent to evade the provisions of sections one, two, and three of this chapter, and to return and reside here, go into another State or country and there have their marriage solemnized, and afterward return and reside here, such marriage shall be void in this State.12

10. All marriages solemnized among the Quakers or Friends, in the form heretofore practiced in their meeting, shall be valid and not affected by the foregoing provisions; and the clerk or the keeper of the records of the meeting, in which they are solemnized, shall once every year deliver a list thereof to the clerk of his town, on

R. S. c. 59, § 6.-10 R. S. c. 59, § 7.-11 R. S. c. 59, § 8.-12 R. S. c. 59, § 9.

penalty of forfeiting fifty dollars, one half to the use of the county, and the other to the use of the prosecutor.18

11. Every justice of the peace appointed for a county or for the State and residing therein; and every ordained minister of the gospel, and every person licensed to preach by an association of ministers, religious seminary, or ecclesiastical body, duly appointed and commissioned for that purpose by the governor and council; may solemnize marriages within the limits of their appointment.14

(d) Where a certificate shows that a marriage was solemnized by a person holding the office both of justice of the peace and judge of a municipal court, but does not recite in which capacity he officiated, the law will regard him as acting in the capacity in which he lawfully might perform the duty.15

(e) A certificate, under the hand of the governor and seal of State, attested by the secretary, that a person had been duly appointed and qualified to solemnize marriages, and that he continues to hold the office, is not legal evidence of the person's authority; an attested copy of the record is.

16

12. Such ordained or licensed minister shall hold his office during the pleasure of the executive; and the commission shall be conclusive evidence that he is an ordained or licensed minister, and when the commission is revoked, a copy of the revocation shall be filed in the clerk's office of said county.17

13. If any person, commissioned as aforesaid, knowingly and willfully joins persons in marriage contrary to the provisions of this chapter, he shall forfeit the sum of one hundred dollars, two-third parts thereof to the use of the county where the offense is committed, and the other to the prosecutor, to be recovered by the county treasurer, or by the parent, guardian, or other person under whose immediate care and government either of the parties was at the time of such marriage; and is forbidden from joining any persons in marriage after such recovery.

18

(f) By the common law, females are competent to enter into the marriage contract at the age of twelve years, and males at the age of fourteen; but persons authorized by law to solemnize marriages are prohibited by section thirteen from marrying

13 R. S. c. 59, § 10.-14 R. S. c. 59, § 11.-15 Jones v. Jones, 18 Me. 308.-16 State v. Hasty, 42 Me. 287.-17 R. S. c. 59, § 12.-18 R. S. c. 59, § 13.

minors without the consent of their parents. This statute, however, has not abrogated the common-law rule as to the age at which persons may be lawfully married. It was designed to prevent the improper marriages of minors; but it does not declare that any such marriages shall be void. In the absence, however, of any provision of statute declaring marriages between parties of certain ages absolutely void, all marriages regularly made, according to the common law, are valid and binding, although had in violation of the specific regulations imposed by statute, 18a

14. If any person thus forbidden, or any minister or other person not authorized to solemnize marriages, joins any persons in marriage, he shall be punished by confinement to hard labor in the State prison for a term not exceeding five years, or by fine not exceeding one thousand dollars.19

15. Every person, commissioned as aforesaid, shall keep a record of all marriages solemnized by him, and, annually by the fifteenth of April, make return thereof for the year ending the last day of March, to the clerk of the town where the marriage is solemnized, and to the clerks of the towns where the parties receive their certificates, certifying the names of the parties, the places of their residence, and the date of the marriage; and for any "neglect to do so, he shall forfeit the sum of fifty dollars, one-half to the use of the county, and the other to the use of the person suing therefor.20

16. A copy of a record so made and kept, attested or sworn to by a justice of the peace, commissioned minister, or town clerk, shall be received in all courts as evidence of the fact of marriage.21

(g) In criminal prosecutions, a marriage in fact, as distinguishable from one inferable from circumstances, must be proved; hence it must be shown that the ceremony was performed by one clothed with the requisite authority for that purpose.22

17. No marriage, solemnized before any known inhabitant of this State professing to be a justice of the peace, or an ordained or licensed minister of the gospel duly appointed and commissioned, shall be void, nor shall its validity be affected by any want of jurisdiction or authority in the justice or minister, or by any omission or

18a Hiram v. Pierce, 45 Me. 367.-19 R. S. c. 59, § 14.-20 R. S. c. 59, § 15, and Public Laws of 1873, c. 102.-21R. S. c. 59, § 16.-22 State v. Hodgskins, 19 Me. 155.