Vital Records Legislation by the Commonwealth of Kentucky up to 1942

Although legislation requiring the keeping of birth and death records has been in existence continuously since 1851, it appears that the earlier records were prepared and preserved only sketchily. Indeed, not only the early records fell into this category, but all those prior to 1911. In this year, the present Statewide system of maintaining birth and death records was inaugurated under the administration of the State Bureau of Vital Statistics, as a branch of the State Board of Health.

The initial act providing for the recording of births and deaths in all counties of the State, although passed in 1851, did not become effective until January 9, 1852. By its provisions, all physicians, surgeons, and midwives were required to keep a registry of all births and deaths at which they attended, and deposit this registry or copy thereof with the county clerk by January 10 of the following year. The county assessor also was directed to ascertain and record, in a list separate from the list of taxable property, all the births and deaths occurring in his county during the twelve months preceding the time of assessment, and to transmit this list to the county clerk. Thereupon, it became the duty of the county clerk to make a copy of all lists of births and deaths and forward this to the Auditor of Public Accounts for tabulation. ^[1]Acts of the General Assembly of the Cornonwealth of Kentucky 1851-52, pp. 358-361. Hereinafter cited as Acts.

During the legislative session of 1859-60, the foregoing statute was repealed and re-enacted. But the only change of note was the creation of the office of State Registrar of Births, Marriages, and Deaths, the holder of this office to be appointed by the governor. The chief duties of the registrar, theretofore performed by the Auditor of Public Accounts, were the preparation of blanks, suitable for carrying out the provisions of the act properly, distributing those blanks to the different counties, and indexing (white persons only) of volumes returned to him by the county clerks. ^[2]Acts, 1859-60, 1, 121-124.

The act of 1873-74 reaffirmed in general most of the important provisions of earlier legislation, repealing certain clauses relating to slaves and supposed fathers of illegitimate children. It also eliminated the office of State Registrar, the duties of this office reverting to the State Auditor. ^[3]Acts, 1873-74, pp. 13-14. On March 16, 1878, an act creating a State Board of Health became effective, and later legislation, in 1893, reaffirmed the board’s status. ^[4]Acts, 1877-78, I, 59; 1893, pp. 820, 824. Unfortunately, however, on neither occasion did the General Assembly make provision for funds or personnel necessary to the successful operation of a Statewide vital statistics division. Finally, in 1910, the General Assembly did enact the Vital Statistics Law of Kentucky, providing for and legalizing the registration of births and deaths. The State Board of Health was charged with its enforcement and administration, and was further directed to establish a State Bureau of Vital Statistics. The Board was authorized to appoint a State Registrar, divide the State into registration districts, and appoint a local registrar of vital statistics for each district. The act also specified that it shall be mandatory for every physician, midwife, and undertaker to register with the local registrar of the district in which he or she resided.

Provisions for recording births required that either the attending physician or midwife should, within ten days of birth, file a certificate of birth with the local registrar. The law required that stillborn children be registered under both births and deaths, and that certificates of birth and death be filed in the usual form and manner.

The issuance of burial permits was made the exclusive function of the local registrar of each registration district. In the event of death from natural causes, the physician who last attended the deceased had to file the certificate of death with the local registrar. But if this official believed that circumstances made it probable that death was caused by unlawful or suspicious means, he was authorized to refer the case to the coroner for investigation and certification before issuing the burial permit. It was the duty of the coroner, after an inquest, to make out the death certificate and file it with the local registrar who thereupon would issue a burial permit. This act, which is in force today, requires that birth and death certificates used in Kentucky shall be the standard forms adopted by the United States Census Bureau. Further, the State Board of Health is directed to prepare, print, and supply to all registrars suitable forms and blanks for use in registering, recording, and preserving the returns or in otherwise carrying out the provisions of the act.

It is the duty of the State Registrar also to examine carefully all certificates received from local registrars and to arrange and bind the certificates in a systematic manner for permanent preservation. A perpetual card index of all births and deaths registered is required.

Before 1911, penalties prescribed for infractions of the various laws dealing with the recording of births and deaths were limited to fines ranging from five to twenty dollars. Violation of any of the provisions of the 1910 act entails prosecution for a misdemeanor. ^[5]Acts, 1910, pp. 96-110; Carroll, The Kentucky Statutes, 1936 Edition, secs. 2062a-1 to 2062a-25. Hereinafter cited as Carroll.

Marriages

Kentucky, formerly a county in the western territory of Virginia, was admitted to the Union in 1792. The General Assembly of Kentucky did not enact any marriage laws until 1798; consequently, during the interim, rites of matrimony were conducted under Virginia laws enacted between 1748 and 1784. By the provisions of the act of 1748, no person could marry without first obtaining a license from the clerk of the county or thrice publication of banns in compliance with the rubric in the Book of Common Prayer. ^[6]William W. Hening, Statutes at Large, Laws of Virginia, 1718, VI, 81-84. Hereinafter cited as Hening.

This act was amended and liberalized somewhat four years after the Declaration of Independence. Quakers and Mennonites were declared exempt from the license requirements or publication of banns, and the amended act removed all doubt about the validity of marriages celebrated by ministers other than those of the Church of England. It was decreed further that a certificate of marriage should be filed with the clerk of the county wherein the marriage was solemnized within three months after the date of the ceremony. ^[7]Hening, 1780, X, 361-363. In 1783, it was provided that publications of marriage banns be made on three separate days within a period of two weeks, ^[8]Hening, 1784, XI, 281. and an act of 1784 extended from three to twelve months the time allowed ministers and clerks of religious societies in which to file marriage certificates with the county clerk. This law further directed that every minister, clerk of a congregation, or county clerk found remiss in the performance of duties relating to the filing and recording of marriage certificates should pay a fine of twenty pounds. ^[9]Ibid., 1784, XI, 503-505.

On February 3, 1796, the Kentucky General Assembly enacted legislation covering the regulation of the marriage ceremony throughout the State. The laws were patterned on the Virginia statutes on the subject. Licenses were declared mandatory and issuable only by the clerk of the county in which the female usually resides. Publication of banns was optional with the parties concerned. The act stipulated also that before any license should be issued, the county clerk was to demand and take bond with good surety for the sum of fifty pounds. Failing this, he must forfeit and pay the same amount. No license could be issued to any person under 21 years of age unless the father or guardian of that person gave his consent personally before the county clerk or certified such consent under his hand and seal. ^[10]William Littell, The Statute Laws of Kentucky, with Notes, Praelections and Observations on the Public Acts, 5 vols., Frankfort, Ky., 1798, II, 64. Hereinafter cited as Littell.

An act of 1799 conferred on the county courts power to license one or more of their body to perform marriage ceremonies in counties lacking a sufficient number of ministers of the gospel. ^[11]Littell, 1800, II, 275. In 1824, the Legislature authorized county clerks to issue marriage licenses to minors upon production of the certificate of the parent or guardian, without seal, and attested by two witnesses, one of whom, at least, had to affirm before the clerk that he or she was acquainted with the parent or guardian. ^[12]Acts, 1824-25, p. 36.

The marriage law of 1850-51 empowered judges of the county courts to perform the marriage ceremony and also authorized them to delegate such powers to justices of the peace. Further provisions of this act materially eased marriage bond requirements. Thereafter, where the parties are personally known to the county clerk, he might issue licenses without bond. If they were unknown to him, he must take bond of one hundred dollars. This act, it should be noted, also provided for filing and recording the marriage license, together with the marriage certificate. ^[13]Acts, 1850-51, I, 214-215. An act of 1851 directed that all persons celebrating or performing the marriage ceremony in the State keep a registry of all such marriages. ^[14]Acts, 1851-52, p. 358. However, this statute was repealed in 1860 by the creation of the office of State Registrar of births, deaths, and marriages. ^[15]Acts, 1859-60, I, 121-122. Some thirteen years later, the Legislature again passed an act requiring all clergymen and other officiants at marriages to keep a registry. This act also made it the duty of tax assessors to ascertain and record all marriages occurring in their respective counties each year. To assist them in obtaining accurate information, they were instructed to inspect the marriage registries of all clergymen. ^[16]Acts, 1873-74, p. 13.

The present marriage law of Kentucky, comprising sections of an act titled “Husband and Wife”, was enacted in 1893 and adheres to the general outline of the act of 1850-51. Briefly summarized, the law decrees the following: No marriage shall be solemnized without a license therefor; no license shall be issued to minors without the consent of a parent or guardian, either personally given or certified in writing and attested by two subscribing witnesses; the license, together with the certificate of marriage, shall be filed with the county clerk by the celebrant of the marriage within three months from the date thereof; the county clerk shall record the marriage in a properly indexed register; penalties for performing a marriage ceremony without a license or authority to do so by a county court shall be a fine of $1,000 or twelve months’ imprisonment, or both; and any county court clerk who knowingly issues a license for a prohibited marriage shall be fined not less than $500 nor more than $1,000 and expelled from his office upon conviction. ^[17]Acts 1891-93, p. 925 ff.

In common with several other States, the Legislature of Kentucky in 1940 enacted a statute requiring each applicant for a marriage license to produce, on a form prescribed by the State Commissioner of Health of Kentucky, a medical certificate showing the existence or non-existence of syphilis infection. If the existence of such infection is determined, the applicant shall immediately become amenable to the rules and regulations of the State Board of Health, and no license shall be issued until the requirements of the board are fully complied with; provided, however, that if the female applicant is pregnant, the county judge of the county wherein the application is made may, on proper medical testimony, order the county clerk to issue the marriage license. A marriage license issued in accordance with the provisions of this act shall be valid for thirty days. This act became effective January 1, 1941. ^[18]Acts, 1940, p. 608 ff.

The act of 1802, which abolished district courts and courts of quarter sessions in Kentucky, established the circuit court system as their successor. ^[19]Littell, 1802, III, 40. Subsequent legislation of January 31, 1809, provided that “the several circuit courts of this commonwealth shall be, and are hereby invested with power and jurisdiction to decree divorces.” ^[20]Littell, 1809, IV, 19. This exclusive jurisdiction conferred on the circuit courts has been reaffirmed by numerous subsequent statutes and is in force today (1942). ^[21]Acts, 1936, p. 63.