The weekly clarion., 1874-03-19

With references 70 tbs &c s1asss8t H1eeeEs4a
ry 10 theconsummatIon Of marriage, it Is
said ssfaing more is needed than that,
"a anguage which is mutually. understood,
or IN any node decIaratorv II intention,
the parties accept Of each other as hus-
band and Wife.And Swinburm lays
doxI1 Iae 1oetrins. that II the words do
not Of their natural meaning, or BY com
mon use. Conclude natrmony, yet, #
The parties intend marriage, and their IN
tent sufficiently appears, 4they are inseP-
4sr4tYle .s,aYrafsd wife not only before God,
hut also before men. - Bsh M. and ID.
229. And this consent may be either
verbal or written; and where there was no
9 -emony, but the parties merely lived
together as husband and wife,. for many
ears. they we're held to be IN law mar
cd I'd Hicks vs.. Cochran, 4 Edw. c.
f07.) tfsz4A -
A maxim Of the civil law, equally also
Of the ecclesiastical, Of the common, in
deed ofah Law, Is, consensus, non concu-
bitus, facit matrimonium, Consent, not
cohabitation, makes narriage. Hence,
whan pafties,s capable of ipternfarryfDg
agree to present marriage, the matrimonI-
al relation is made thereby complete.
| (Bish NJ. and d. 228.) If, practically,
| man and woman recognize each other
as, in substance, Go use an expression
| at least can be understood, husband and
wife, though they attempt to restrict the
| operation of the Iaw upon their relations,
| the law should bold them public policy
| requires this, the peace of the community
requires it, the good of society demands it
| to be married persons. unless some stat
/ L,. f.f
some form Of marriage necessary. I'd.
/ 225. ). ~ Is 81
Divested Of verbiage and fgurative lam
guage, the bill in this case AYERS, substan-
tally, the relation between the parents of
the complainant, of husband and wife,
wanting only civil or criminal solemniza-
ton, desire for its existence, and rejDic-
ing that the new Constitution would legal
ize their intercourse and legitimatize their
children. MIR. Bishop, vol. l., II says:
''The institution of marriage, commen-
cling with the face, and attending man in
| ali periods, in all countries of his exist
ence, has eyer been considered the par
ticular glory of the social system. 1t has
shown forth, in dark countries and in dark
periods of The world, bright luminary
on his horizon. And but for this ilstitu-
ton, all that is valuable, all that is Writ u
Gus, all that is desirable in human exist
ence, would long since have faded away
in The general Fetrograde Of the race, and
in the perilous darkness in which its joys
and its hopes would have been wrecked
together. Marriage, then, says Mr.
Bishop, is to be cherished by the. govern
ment, as the first and choicest object of its
regard. Pursuing this subject, he states
this doctrine. Therefore, every court, in
considering questions not clearly settled
or defined in the law, should lean toward
this institution OF marriage; holding con-
sequently, all persons to be married, who,
living in the way of husband and wife,
may accordingly be presumed to have
intended entering into the relation, unless
the rule OF law which IS set up 70. prevent
this conclusion is distinct and absolute,
or some impediment Of nature intervenes.
This. proposition is, indeed, sustained in
part ~ the well recognized maxim, Sem
per presumitur pro matrimonio (the pre-
sumption is always in favor Of marriage
a maxim too often overlooked by our
tribunals; but further that this, in all cases,
the presumptions both of law and of facts
saould be carried to the very verge to up
hold a marriage, where marriage was
meant by the parties. (l Blsh. NJ and D.,
413.) This doctrine is further enforced
by the declaration, founded in truth, if
not very truth itself, that marriage is "a
civil institution, the most interesting and
important in its nature of any in society,"
Marriage per verba de prsesenti, is illus
trated by text writer's thus: Where the
man says to the woman, do take
thee to be nywife, and she replies, 81 do
take thee to be my husband" (Swinb.
Spousafs I'd ed. g.. Bish: NJ q D. 227. J
And the same author says that ''any sign
of assent is sufficient 4 Bish. NJ. d D.
2S8.) In the case at the bar, the bill, in
effect AYERS a marriage per yerba de pres
enti, legal and efeetual for all purposes,
as the record now stands. The doctrineC
seems to be that, though ignoring the
directions of the statute, and though dis
regarding all forms and ceremonies, the
law should make persons married who
intend marriage And this, the Consti-
tuition of our State, has adopted as the
organic law. All others outside the class
named are in illicit, meretrieious or Grim
inal cohabitation.
The State, says Bishop, will cause its
citizens to assume the matrimonial status
only when they consent to assume it, Il
Bishop NJ. and ID. 12) 1--WE have seen
in the foregoing discussions, that through
the laws of marriage runs the principle
which puts it in the power of parties to
assume or not, ut their own elections, the
marriage status while the status is i'm.
posed upon no one who does not accept it
Voluntarily" I'd. I21.) Indeed, no
marriage is valid without consent, howev-
er consummated. Id SO, 81, 21S, 26T.
Consent is the essence Of marriage, with.
out which it cannet exist. Cd 94) In
the absence of consent the status of mar
riage is never superinduced by any gov
ernment. I'd. 21S) The law compels
no one TO assume the matrimonial status
because marriage requires for its eonstitu-
ton, the mutual consent Of the parties,
which consent is the contract I'D. 21S.
and cases there cited.) The marital rela-
ton, or status, is created by contract; |
Bishop Nj. and ID. p. 5, Z, 8, 10, 70 $50.
2S2; and this contract may be written or
verbal, in words or by acts, from which it
may be implied. Consent is essential.
but no formal contract, assent, or eeremo-
NY, Is necessary TO its creation. Without
consent, no statute or organic law can ere
ate this relation; and when once created
by the agreement, assent. or aet.of the par
ties, the relation cannot be dissolved, save
by due course of Law. Id. 272 IN A fun.
ther most important deduction and warn
ing is stated by Mr.. Bishop, viz: that.
parties occupying the status of husband
and wife, legal and binding until dissolved
by due course of law, by entering into
other matrimonial relations, subject
themselves sos prosecution ftsf bigam1
Id. 272, and eases there cited.