86. A Bill Annulling Marriages Prohibited by the Levitical Law, and Appointing the Mode of Solemnizing Lawful Marriage
Be it enacted by the General Assembly, that marriages prohibited by the Levitical law shall be null; and persons marrying contrary to that prohibition, and cohabiting as man and wife, convicted thereof in the General Court, shall be amerced, from time to time, until they separate. A marriage between a person of free condition and a slave, or between a white person and a negro, or between a white person and a mulatto, shall be null. Where a person, by inquisition taken by virtue of a commission issuing out of the High Court of Chancery, shall be found a lunatic, if, before such person shall be declared of sane mind by the Judges of the said court, or two of them, he or she shall marry, such marriage shall be null. And a marriage between any persons whatsoever, unless it be with such license, and, moreover if both or either of the parties not having been married before, be under the age of twenty one years, with such consent, as herein after directed, shall be null. The marriage license shall be issued by the clerk of the court of that county, in which the woman shall have resided for the last preceeding four weeks, at the least, in this form or to this effect. A B, of the hundred of in the county of and C D, of the hundred of in the county of are hereby licensed to be joined together in matrimony; and shall be signed by the first acting Justice of the Peace, of the same county, who shall then be therein; but the clerk shall not issue the license, until the father or guardian of any party who, not having been lawfully married before, shall be under the age of twenty one years, shall have personally declared, or by writing under his hand and seal, attested by two witnesses, shall have signified, his consent to the marriage to the clerk, which consent the clerk shall certify at the foot or on the back of the license, and shall certify in a separate paper to the Justice of the Peace. Any clerk, required to issue a license without such declaration or signification of a father’s or guardian’s consent, and doubting whether a party be of full age, or not, may suspend issuing the license until the then next court day of his county, unless he shall be sooner satisfied, when the fact shall be enquired of by a jury, and according to their verdict he shall govern himself in issuing or refusing the license. Any clerk who shall issue a marriage license, when the parties, or either of them, shall be under the age of twenty one years, without such consent, declared or signified as aforesaid, shall be liable to the action of the father or guardian of the infant, or of each infant mentioned in the license, for damages; which damages, in case of a suit brought by the guardian, shall be to the use of the ward; and the clerk shall moreover be deprived of his office. Persons who having obtained such license, as before is directed, shall, in presence of witnesses, declare or yeild their consent to be married together, shall, without further ceremony, be deemed man and wife, as effectually as if the contract had been solemnized, and the espousals celebrated, in the manner prescribed by the ritual of any church, or according to the custom of any religious society, whereof they are members. The clerk issuing licenses shall keep a correct register of them, and the Justices signing them shall report such signature, within six months thereafter, to the court of his county, which report shall be entered by the clerk in such register; and whosoever shall neglect his duty in these particulars, or any of them, shall be amerced.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 60. MS (ViU); clerk’s copy.
Bill was presented by Madison 31 Oct. 1785 and on 14 Dec. postponed to next session; it was brought up at Oct. 1786 session and passed the second reading, but apparently no further action was taken on it (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 92; same, Oct. 1786, p. 16–17). This remarkable Bill significantly omits all references to performance of marriage ceremonies under ecclesiastical authority; what was required here was simply the obtaining of a license and the declaration of intent in the presence of witnesses. The 1748 Act concerning marriages (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends vi, 81–5), according to whose terms TJ himself was married, required not only a license but also “thrice publication of banns according to the rubric in the book of common prayer”; only ministers could perform the ceremony, though in the event that a parish should not have a minister, the clerk or reader could act in his place.