The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-09-23
Mr.. BLAINE,s MARRIAGE.
It vas Legal Under the Law of Kentucky
A Decision Of Chief-Justice Boyle

DeelSl0n Oh GnIeI-JuStlc6 DOyle,
e. " Hawkins, in Cincinnati Commercial Gazette.
AS the law of Kentucky stood in 1850, Mr.
9laine's marriage in Georgetown without license
rom the clerk Of the court, and without observ
ng the strict forms of the statute was valid to
every intent as legal marriage. The law, as
then in force, is well and most ably expounded
by Chief justice 3YyIe, one Of Kentuckys most
able iurists, in the e. ace of Dumarsely VS. Fishly,
Marsh, 800 Tbs action was for slanderous
words. The defendant pleaded that the plaintiff
is and was. at the emanation of the suit, his law,
full WIFE to which plaintiff replied, traversing
the allegations Of the plea, and issue was there
upon Joined to the country. The court says:
cit is obvious that the marriage between the
parties in this case was not celebrated according
to the provision Of the statute of either country
1t was not done according to provisions OF the
statutes of this country because the female par
ty did not reside in the county from the clerks
Office Of which the license was issued and 1t was
not done according to the statute OF Indiana, be-
cause the license was not issued by the proper
officer of that State But neither the statute OF
Indiana nor that Of this State avoids marriage
not celebrated according to its provision.
Marriage is nothing but contract and to rem
der it valid it is only necessary, upon the prncl-
pies of natural law, that the parties should De
aOl6 TO contract, Wiling TO CONTRACT anu SHoutu
actually contract A marriage thus made, with
out further ceremony, was, according 10 the
simplicity of the ancient common law, deemed
valid to all purposes, and such continued 70 De
the law of England until the time of Pope limo
cent III when the ceremony Of celebrating mat
rimony in facie eeclesia was first introduced
into that country. That ceremony however,
though introduced by the usurpation of the
church, was afterward recognized to certain
extent by the common law, and it would have
been idle for the law to have recognized the
ceremony without attaching to it any legal
consequence. 1t was therefore held that
to constitute marriage de jure, and valid to
every purpose, it must be celebrated in the
church. But marriage contracted without the
ceremony was, nevertheless a marriage IN fact,
and was still deemed valid for most purposes.
Baron & Feme, 8, A, 5; 2 Salk., 437; Black
Com, 439; Johnson's Reports, 81 Even in the
ecclesiastical courts marriage de facto was not
held to be void. And if in those tribunals, by
whose encroachments upon the civil authority
the ceremony of solemnizing in facie ecclesise
was introduced, marriage without ceremony
was deemed valid to some purposes, we would
naturally conclude that the courts of common
law would regard such marriage with still
more indulgence; and after citing number OF
CEses going to show that in all personal matters
and causes q marriage de facto was sufficient,
the court says: I'm fine in every shape in
which the question has been presented to the
courts of common law, in personal action, or in
relation to personal matters marriage in fact
Qeom6Q
this country would be attended with the most
mischievous consequences The statute pre-
BcIibiug the mode of celebrating the rites of
matrimony requires that when either party is
under the age Of twenty one, the consent of the
parent or guardian shall be given, in person or
in writing; that bond and security shall be given
before license can be issued; that licenses
shall be issued only by the clerk of the county
where the female party resides, and that no
clergyman who has not previously obtained tes-
lc hot f6oo rf
shall celebrate the rites of matrimony A com
pliance with the whole of these particulars is
necessary to render the marriage conformable
to the statute, and failure to comply with any
one of them would render it but a marriage in
fact, and, if marriage in fact be void, many of
the marriages of the country would be So for
there are many in which there has been a fail
ure, either Intentionally or otherwise to comply
with some one or more of the fornalities pre-
geDted by the statute, doctriue which would
thus tend to vitiate great portion of the mar
riages of the country, and would result in meal
culable evils and can not be admitted to be cor
rect
ssBut admitting marriage in fact to be valid,
it is contended that to constitute such a mar
riage contamination is necessary; and it is in
ferred, as the marriage in this case was not con
summated by cohabitation that it does not
amount even to marriage in fact. The posi-
ton assumed in this argument is absolutely I'M
tenable 1t is neither founded on reason nor
supported by authority. By the law of nature
the contract OF marriage is complete without
contamination, and it is maxim of the common
law, borrowed it is true, from the civil law, but
founded upon the reason and nature of the thing
that consensus non concubitus facit matrimo-
MUM, (Co Lit, "a; Black 433.
1T is said, indeed, that marriage contracted
per verba de future, which in truth is nothing
but promise to marry in future, is valid mar
riage IL the parties afterward cohabt; but the
cohabitation, even in that case, does not con
stitute the marriage. It is only evidence of the
marriage; and the same authorities which say
that acontract per verba de future becomes a
marriage If the parties afterward cohabit, inva-
riably lay down the doctrine that marriage per
verba PRESENT. is forthwith marriage and com
plete without cohabitation, and the courts de-
eide that it is sufficient for the defendant to sup
port the issue on his part, to prove marriage In
fact, and that the marriage proved in this case
was of that character
The doctrine of this case thus settled, was
never questioned in Kentucky, under the law
as it existed in 1850, which governs the marriage
Of Mr.. Blame, so that after marriage in Penn
syivania was entirely unnecessary to make it
valid marriage in Kentucky The change made
by the Revised Statutes, which was made and
went into force afterwards, does not affect the
validity of the marriage.
It Was Valid and Binding.
Louisville Commercial (Ind)
No lawyer will dispute that his first marriage
Az !