, 1876-08-19


htion in this Territory do not differ in
their main essential elements from those
of nearly every state and Territory in
our Union. In all, we believe marriage
Is considered as n 1dtVS originating in
contract, the essential element Of which
beinr the same ns in all other contracts,
the consent of each party, and the pur-
pose formed in the mind of each to con
tract for the performance Of the specific
thing, or the cntr,inr into the state ol
relationship agreed upon; yet it is every
where considered ns something more
than a mere contract when once entered
upon; forming the RIA ion of husband
and wife, one of The most important
known to our law
This relation is considered so impor-
tant, that the statutes Of every State
have rescrbed regulations more Or less
stringent by which marriage may he Gel !
ebmted, as well as mean, more or less
efficient by which the evidence of com
piance with these regulations may be
preserved yet from the rules prescribed
hy the different States differing 10. u
greater or less extent, as well aS from the
fact that few persons who nave ac luhlly
complied with the salute law regulating
marriage, preserving the evidence Of such
compliance, courts have been compelled
in most cases to take testimony of the
consent of the parties, 0r their JOINT CO.
habitaton as husband and wife, from
which they inferred II lawful marriage in
compliance with staiulary forms. This
is generally all the evidence required in
these cases. Conseny followed Ivy CO.
habitaton, constituting a good and valid
marriage, by the common law of nearly
every, il not every State and Territory,
where it is the express intent of the
parties to torn tnGt relation, and no
subsequent ceremony islnlcndcd. Filing
an agreement to that effect in the county
office would be an appropriate means of
preserving evidence ot that intent. Such
a marriage as this could never he at
tackled by any collateral proceeding, and
as far as third parties are concerned, for
nearly every, If not Tor every purpose
would be as valid rs one celebrated in
strict compliance with the statute, and
so lnng rs 1t continued, such an agree
ment could he enforced, it not in posi-.
tive violation of law in its details, the
same as any other written contract ex-
cept that the parties contracting such
marriage might he liable to any penalty
prescribed by the statute f'r the inlor
nal celebration of marriage; this pro-
ceeding would not effect the validity of
such marriage.
The only questions arising upon such
an agrccment would probably be those
relating to Il separation agreed upon by
the parties, or divorce in court, A
Judge, would have the right tn treat
such contract as ,uificient evidence of
marriage upon complaint praying for a
divorce, should he deem the interests of
the public would allow, and the situa.
tion of the parties require it, leaving
both parties free to contract new mar
riage this way, or in the method pre-
scribed by statute law,
A marriage formed this way, being
viewed hy the courts rather as evidence
from which marriage would be in
fsrred than legal, formal marriage;
should parties form this relation in this
informal way, and separate by mutual
agreement, and form such relation again,
either in the same way, or as directed by
statute, with other parties, and one or
each hp sued for bigamy, they would be
protected on such suit, because the State
would first be required to prove formal
marriage; express proof, not inference
heing required before one could be con-
victed of crime; yet If sued for lasci-
vious cohabitation, the inference of
marriage at least informal, but sufficient
to protect from punishment might be al
lowed in the defendants favor.
Whether it would or not in oil cases
be sufficient protection would depend
somewhat on the personal opinions Of
the Iudoa aa ypall no tho macmillan mnnnar