The Portland daily press., 1869-12-21
DAILY PRESS.
%oRg'IANn
Tuesday Morning, December 81 1869.
Marriage---its Solemnizatiou,

Marriage---its solemnfzation.
1hat dubiety which is popularity supposed
always to overhang the issue of legal proceed
ings nnds nowhere stronger Illustration than
in those causes involving the the validity of
marriages soemnized in some particular way
OF under peculiar circumstances One would
naturally conclude that there could be moth
ing more definitely settled than whatever per.
talns TO this Oldest, most important, almost
universal contract and relation of MARRIAGE
The reverse OF this, however, is the fact. The
proVerbial uncertainty of the law is in moth
ing more Sloriously uncertain than concern
ing TINS subject, where every possible motive
10 induce certainty seems to conspire. When
the question, What constitutes legal mar
rage? is put to them, the oracles are dumb,
or give dubious, feeble and contradictory re-.
sponses. The legislation of every country
from the earliest times to the present, has as
sumed to regulate this form of celebrating
marriage, rightly viewing it not only as
civil contract but as also possessing elements
OF a spiritual and religious character. The
stronger the religious sentiment of the COM
munity the more guarded by legislative proyi-
sion is the institution of marriage; so that in
Maine we. find it carefully provided by law
that no man shall marry his grandmother,
nor shall any fanatic amalgamationst indulge
his passional attraction toward his black but
comely handmade These prohibitions of the
law are easily enough understood; but when
we seek to ascertain the essentials of m ar
riage between persons not thus prohibited we
find ourselves in the dark A marriage be-
tween competent contracting parties, solem-
nized in accordance with the terms of the
statute, is unquestionably valid; but when
we have occasion to enquire whether or not
the omission of some part of the ceremonial,
or of some form or act, invadates the mar
riage, we can obtain no satisfactory response.
Nor can the courts of last appeal in this cour-
try and the one from which we derive the
principles Of our common law enighten us
upon this point. This question, the most i'm
portant in its bearing that the individual or
society can present for the consideration of
the courts, is, at the same time, the most un-
certain and difficult of solution The ele-
mentary writers of the law give us no aid in
solving it. In the first edition Of his COM
mentaries Chancellor Kent declares that con-
sent to marriage by competent parties of it
sell constitutes binding marriage; but be-
ing put upon inquiry by subsequent criticism
of this statement, he qualities it in later edi-
tions by adding the words Gin the absence of
all civil regulations to the contrary" thus ri
valing in ambiguity the dubious vaccinations
of the Dephic Apollo. Of course people may
marry as they please in State where there
are no civil regulations concerning marriage;
but where there are such civil regulations do
they indicate the only way, or simply way
in which marriage can be solemnized? In
other words, are the statutory provisions up
on this subject merely directory or are they
mandatory and exclusive of all other forms of
procedure?
In 1S43 the case of Jewell v. Jewell, report
ed in Howard's Report, 219 brought this pre-
else question before the Supreme Court of
the United States, and after argument by the
late Hugh S. Legare, and other eminent coun-
sci and due deliberation the judges were
found to be equally divided on this point and
could give no opinion. The next year the
highest courts of the United Kingdom were
brought to discussion of this subject, and
they, too, could only idly finger the gordian
knot, finding themselves "unskilled to loosen
and too weak to cleave".
One Mills was married in Ireland in disre-
gard of established forms; he came alter
wards to England and there married another
woman according to those forms and was
then indicted for bigamy, defending himself
upon the ground that his first marriage was
not celebrated according to legal requirements
and was therefore no marriage, but utterly
void. He was indicted in Ireland; the judges
were equally divided, and the legal question
was transferred to the House of Lords for
determination. The cause was there argued
by the best talent of the country before its
ablest jurists; for in the decision of legal
questions only those peers who are or have
been judges take part. There were then six
such peers, known as law lords: Brougham,
Denman, Campbell, Lyndhurst, Cottingham,
and Abinger. The report of this case, as pre-
oSh.So " llSili, DIOdu pages Ol Une
tenth volume of Clark AMI Finnelly's Re
ports. Lord Cottenham declared that in the
course of a long professional life he had met
with no question so embarrassing. The diff
culties were so great that the same result was
reached as in the other tribunals; the Judges
were equally dicided. Judge Barnard of
New York, one Of the elected luminaries of
that metropolis, is reported as lately deciding
that mere long-continued cohabitation would
confer all the marital rights and obligations.
But there was giant Of the law in earlier
days, whom we should place above all the
called-lucus a non lucendo) of the Empire
city, who was of a different opinion.
Judge Parsons, in Milford V. Worcester,
Mass. 4S, gave the decision of the Court over
which he presided that the mere agreement
Of parties to marrv, followed by cohabitation,
however long continued, would not constitute
valid marriage, though made in the presence
OF justice OF the peace, if the justice re-
fused to take any part in or sanction the GER
emony. This appears to us the sounder judg-
ment, the more rational conclusion. The
marriage contract, in its legal characteristics,
differs essentially from all others. The par
ties to all Others can annul or modify them at
their pleasure; not so with this. The inter-
position of the State through its legislative
or Judicial department must he invoked to
sever this tie, however desirous the parties
may be to separate.
Those who cohabit without any agreement
of marriage surely render themselves amena-
BILE to the law. If then, the law seeks to con-
troll the continuance and termination of this
contract relation, legal forms ought to be OBJ
served and legal sanction superadded to its in
ception. Mere agreement of the parties is an
| unsound basis for an institution OF this social
Importance, since it may be asserted by one
party and denied by the other, or may be de-
| MED by b,th, whenever the tie becomes dis
tasteful to either or both of them. Whenever
the Statute provisions have been considered
| as directory, it has been hestatingly done
| for the reason assigned by the Pennsylvania
judge in Rodebauch V. Sanks, Watts, 0, that
"a contrary decision would bastardize hall
| the children born in the last halt century,
The only real safeguard for society is to have
the legislat We regulations concerning mar
riage strictly enforced and all deviations from
them severely punished. The evident ten
dency of the Courts in this State has been to