The Jackson standard. [volume] (Jackson C.H., Ohio) 1847-1888, 1884-10-30
CATAR r II
Was Blaine's Marriage In Kentucky Valid
Under the Laws of that State?


Was Blaine's Marriage In Kentucky falld
Under the Laws Of that State?
To the Editor of the Commercial Gazette:
That marriage valid in the coun-
try where celebrated is valid in every
other country where the parties may
be domiciled, is principle of the law
of marriage as old as the rite itself,
and too well settled to admit OF dis
cussion.
Was the marriage of Blaine on the
Both day of June, 1850, in George
town, KY, valid marriage under the
laws Of the State in which it was cele-
brated? is the question proposed to be
discussed in this short article.
Mr.. Blaine in his answers to the
interrogatories propounded to him by
the defendants in the Indianapolis
libel suit, says that he and the lady
who is now and has been for more
than thirty years his honored and
honorable wife were, in the presence
of witnesses, secretly united in mar
risge in Georgetown, KY, on the Both
of June, 1850; that he was afterwards
advised that the validity of that mar
riage was doubtful; that a license to
be married was indispensable to the
validity of marriage celebrated at
that time in the State of Kentucky.
With Mr.. Blaine's legal advisers l
propose to take issue, and here affirm
tkat that marriage, celebrated as 1T
was, was as valid and legal as though
there had been a license issued from
the County Clerks office, and min
lister had performed the ceremony. 1t
is easy to understand how one might
become confused as to the validity OF
marriage celebrated in that manner
in Kentucky, about the time the sec
ond ceremony was performed In Pitts
burg, in March of 1851, when he re-
membered that parties desiring to in
termarry in that State at the present
time must first procure license from
the Clerk of the county in which the
female resides, and that the ceremony
must be performed before some one
authorized by law to unite parties in
marriage. But the case assumes alto
gether a different shape when we un-
derstand what the law of marriage was
in Kentucky at that time.
Kentucky was admitted into the
Union as a State in 1892. At that
time the common law was in full force
and effect in that State. As long as
America was under control of the
English Government the common law
prevailed. When the dominion of the
English Government was shaken off
that law still prevailed and prevails
now throughout the United States
where express provisions of the stat
utes have not been substituted for it.
That law, in so far as it relates to the
validity Of marriages, is briefly as fol-
lows: That where there is present
and mutual consent by the parties to
become man and wife, even without
copula, or a future marriage followed
by copula, such is a complete and valid
marriage in the eyes of the common
law See Bishop on Marriage and Di-
vorce, Section 63 to Section 175 inclu-
sive. Indeed, there are Kentucky au-
thorities on this all important question
which are plain enough for any one
to comprehend If he will read them.
In the case Of Dumaresly VS.. Fishly,
Sd Mar. p. 1858, the Kentucky Court of
Appeals said: "a marriage is nothing
but contract, and to render it valid
it is only necessary that the parties
thereto should be able to contract,
willing to contract, and should actu-
ally contract" That Blaine and his
wife were able to contract no one de-
nies, that they were willing to contract
no one doubts, that they did actually
contract, thirty years of the purest
devotion to each other as husband and
wife bear attestation.
The common law in regard to mar
riage continued in force in Kentucky
from the time Of her admission into
the Union as State up to July 1,
1852. The General Assembly of Ken
lucky, at its session for 1951-52, |
adopted the Revised Statutes, to take
effect July 1, 1852. The only acts of
the Kentucky Legislature from 1892
up to and including 1851, in regard to
this question were the act preventing
ministers solemnizing marriage for |
parties without license passed Febru-
ary 3, 1898 (see LittelI's Laws of Ken
tucky, Vol Ii, p. 64), the amendment
to that act, prohibiting Clerks issuing
license to parties under the age Of
twenty-one years. passed December
20, 1899 (see Littell's Laws, Vol. IL,
p. 275), and the amendment to the
same act, which provided who might
enter the marriage contract, passed
February 12, 1910. (See Morehead's
Statute Law, Vol. Ill, p. 417.) In
this act and the amendments thereto
there is nothing repeating or abolish
ing the common law in Kentucky; no
language which can possibly be con-
strued as substituting any statute law
for the old common law. There are
decisions of the Kentucky Court of
Appeals upon that question, which
forever put to rest any doubt thereon.
n the case of Estill VS.. Rogers, 1
Bush, D. 81, the Court say: "Ante-
'edently to the enactment Of the Re-
7ised Statutes, adopted in 1852, CO.
labitation and recognition as husband
md wife by free male and female,
whether black or white, who were
to make binding contract
vas legal marriage, as settled by the
ommon law, which then prevailed in
kentucky" | am aware of the pres
mt provisions of the Kentucky stat :
ties upon this question. But the act
f the Legislature adopting the Revised
statutes in Section Third provides
hat no section thereof shall be con-
trued so as to affect any existing
light. Even had it desired, the Ken r
ucky Legislature could not have :
assed any law that would act retro :
pectively in affecting the existing +
lghts of the citizens. As the mar ,
Iage of Blaine was solemnized accor- >