The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1875-06-29

case OF Tue 1tule w. - Ehs ouGAA HNu susan
s, Gilbert, indicted for fornicatiOn:
Regarding the various provisions ofthe
statute together, 1t seems to stand on all
forms with the common law in regard to
the effect OF the absence Of ceremonial
forms upon the validity Of marriages. II
either oil the parties to the marriage re-
gard it as a union as husband and wife, It
shall not be either void or vOidable be-
cause the Requirements OF the statute in
regard to license or solemnization have
not been complied with, and it seems
probable by the prOViso to section 8, that
where parties take out a marriage Ii
Cense, and acting under that license,
appear before any person and pronounce
by or through him an agreement to be-
come man and wife, the marriage will be
valid and the parties held to the contract
without any regard to the belief the party
may have entertained in regard to its le-
gality, especially il followed by cohabita.
ton. But the decision Of this proposition
is not necessary TO the case In hand, The
defendant took out a license, and, in the
presence Of certain witnesses, themselves
solemnized a ceremony OF marriage and
took each the other for husband and
wife respectively using each the form
OF words heretofore set out, without
the iuterpositiOn Of any other persons
save the persons who appeared in the
character OF witnesses. The only pOr-
tion OF the formula used by the defend
ants in this portion OF the ceremony to
which ali exception Is taken is that em-
braced in the words $50 long as the union
OF love and life shall last" But do
not think that these words are very sig
niticant, nor that they or any other words
which may be employed in marriage
ceremony touching the deviation Of the
contract, are Of any legal force, or In any
way qualify the contract. II the parties
agree to bc husband and wife, and res.
emily thereafter assume the status Of the
same, the law settles the nature and de-
Walton Of the contract, and any stipula-
tiOns which the parties might make
in regard thereto would bo mere
idle words or mawkish sentiment.
II the forms now under review had
been pronounced by an authorized
person, the marriage would have been
good and regular. II they had been used
by an unauthorized third party that in
capacity Of the person Solemnizing would
not have nvalidated the marriage, and all
that can be said IN this case Is that the
persons solumniEing or pronOunCing the
marriage, namely, the parties to the con.
tract, were not made capable by statute Of
solemnizing the marriage. It Is difficult
to cOnstrue how any strength or sanctity
would be given TO marriage contract
where the formula has been said in the
first instance by some third person In
capable Of sOlemnizIng marriagc by stat
ute, or by reason Of any priestly or
official functions of which he was
possessed, aud repeated after him or
assentcd to by The parties themselves
The incapaCiiy Of such person would
be rs complete as could be that Of the
parties to the contract and the imprO.
priGty Of his action certainly as grave;
but the defendant, Buell. testilies that he
believed, at the time OF making this
marriage contract with Miss Gilbert, that
1t was u legal marriage, and he further
testi0Gs In answers in CrOss-intGrrOga-
tories by the States counsel, that Miss
Gilbert stated ut the time That she bc.
liuvcd IL To Le legal. The counsel for the
State admit That II either party believed
the marriage legal at the timo he or she
entered into the relationship tllat II
will stand. 1t Is argued, however, that
from the adopted aud especially from the
sO.callcd agreement which was signed
by the parties, clear conclusion may he
drawn that The parties did not either Of
them regard 1t as legal marriage " hich,
whatever may be said Of the want Of wis.
com and good taste Of some Of the senti-
ments expressed in the 30 called agree.
ment, don't zee that II OverthrOws the
testimony Of Buell., in regard to his belief
concerning the legality Of the marriage,
especially when | regard his statement
that he supposed that he could be di-
vOrced from his wife only by a decree Of
the court, and that his provision in the
agreement was only sentiment or pro.
lest against the existing laws and preju-
licCs. Neither do ! think this ngrec.
meet has any legal efficacy for two reN-
SONS:
/. II was signed after the parties had
pronounced themselves husband and
wife in public, and II may be solemn
manneI.
2. Because II It be regarded aS n part
Of the marriage ceremony no part ofithas
any legal force except that which says
that they agree TO ussIlme the relation Of
husband and wife, and that / think has
full force and effect. What the parties
meant by the protest against the assumed
right OF others tO interfere with that which
concerns only ourselves, II Is difficult tO
say with certainty from the language EN-.
ployed, but l may presume that il Is Of
little consequence as tits Immediately fol.
lowed by an expression Of intent to com.
ply with the laws OF the State and the
parties agree 10 assume the relations Of
husband and wife with all which these
terms imply, etc. Then follows this lang.
uuge:
WHEREAS, The courts Of law have dc.
Cided that marriage Is a civil contract,
and governed by The same rules rs all
other contracts, therefore we hereby
agree that tile contract exist anu DE III
force during our physical lives, provided
our mutual love natures ever blend as
now, but to terminate without prejudice
by the wish Of either party II love shall
ever cease to be mutual, which event we
trust and believe never will occur.
II Is this feature which the counsel for
the State, as I understand them, urge
with most confidence as showing that
neither party believed the marriage
legal, and that therefore II Is void, and II
islhis feature which has excited, Justly us
think, some nieaslireoi public indigna.
tiOn, but I do not think II shows that
neither party believed the marriage
to be legal. II does show that
they we're ignorant Of what the courts Of
law have decided. II Il were the law
that marriage was a civil contract, gov.
erned by the same rules as all other con.
tracts, then II might follow that the par.
ties thereto might terminate the contract.
But no such liCentiUus law was ever pro.
nounced by any court. The formation Of
marriage is a contract peculiar 10 itself,