The right of society to deal freely with the whole province of marriage, divorce, and the family may be conceded. To determine the proper character and sphere of legislation is a very different matter. What is the quality of the existing laws under the interpretation given to them by the courts? Are they adequate to secure proper social control? What is the legitimate aim, and what are the needful limits of future legislation? Should the laws be uniform for the fifty-three states and territories; and, if so, how is uniformity to be attained? These are practical questions with whose solution it is high time that society should more earnestly concern itself.
_a_) _The statutes and the common-law marriage._--The defects in the matrimonial laws of the United States are many and grave; but perhaps the chief obstacle in the way of securing a proper social control is the general recognition of the validity of the so-called "common-law marriage." Almost everywhere the public celebration of wedlock is intended by the statute; and in nearly all the states a license or certificate is required before the solemnization may take place. Yet, according to the prevailing doctrine, as expressed in judicial decisions or in the statutes themselves, these provisions are interpreted as merely "directory," not "mandatory;" and marriage contracts made in total disregard of them, by words of mutual present consent, are sustained as valid, although the prescribed penalties may be enforced for violation of the written law. In short, the vicious mediæval distinction between validity and legality is retained as an element of common matrimonial law in the United States.[594]
[594] On this doctrine, with the leading cases, see KENT, _Commentaries_ (14th ed., Boston, 1896), II, secs. 87 ff., pp. 119 ff.; REEVE, _The Law of Husband and Wife_ ("Domestic Relations"), 250-58; GREENLEAF, _Law of Evidence_ (16th ed., Boston, 1899), II, secs. 460-64, pp. 441-47; and especially BISHOP, _Mar., Div., and Sep._, I, secs. 409 ff., pp. 176 ff.