Evening star. [volume] (Washington, D.C.) 1854-1972, 1885-07-18

| THE LAW OF MARRIAGE.
The Great Uncertainty a. to what Con
stitutes q Valid Marriage.
IS A CLERGYMAN NECESSARY TO MARRIAGE
WHAT THE LAW Is IN VARIOUS STATES
WHERE COMMON Law MARRIAGES OR MAR
RIAGEs BY CONSENT ARE NOT VALID, &C
1t is an interesting TACT that the law in thi
country concerning marriages by the mer,
consent Of the parties, or common law mar
riages as they are sometimes called, is, at thi.
advanced day, still in q state of singular uncer
tainty.
Public attention In this city has been drawn t6
the subject by the decision in the recent divorce
case of Peck agt Peck, published In THE STAR
and some account Of the law OF the several
states in reference to informal marriages may
therefore, be considered timely. The decision
referred to was to the effect that marriage In
the District of Columbia not solemnized by q
clergyman, or other person duly authorized to
perform the marriage ceremony. was invalid
ana null; and Is opposed tO what hitherto was
deemed the settled law Of the District
In but three states, Kentucky, Maryland and
definitely settled, that solcmnization is neces
sary. There is, however, but little doubt that a
celebration would also be required in Delaware
Maine, North Carolina, Tennessee, TIE xas and
possibly Connecticut.
AS concerns the presumptions of marriage
proof of actual cohabitation as husband and
wife, acknowledgements and recognition of each
other rs such TO friends and the public, and
general reputation OF marriage, except In ac.
lions for criminal conversation, polygalny and
the like, viii suffice to presume or evidence
actual valid marriage in nearly every cOmmu.
nifty. But In regard to what constitutes mar
riage, as contradistinguished from what evil
ocnccs marriage, there Is, unfortunately, no
such unanimity.
All the states have statutes providing for and
nj
permission must be obtained or notice given
before the ceremony, who may or must per-
form it, what record Of the marriage must be
made and by whom. etc. but with one or two
notable exceptions. these statutes are merely
directory br prohibitory, not declaring
THE MARRIAGE VOID,
nor even implying that it shall be void, for nom
conformance with their provisions. And while
1t is true in very many Cases, that where ~ stat.
ute directs thing to be done in q particular
way 1t Is void IL done in any other manner, still
as respects statutes relating to marriage, this
construction has seldom been adopted, On the
contrary, the doctrine may be said to be estab-
ilshed that unlcis q statute is mandatory, un-
less by express words it goes to the validity of a
nty 1T will he construed TO afiec the legality OF
the marriage. and not its validity. As the SUI
prenle Court say, statutes only prescribe the
mode of entering into the contract; they do not
confer the right, though, without question, they
may take it away, hut then only when express
w. %or r Of nullty are used fMester v Moore.
To illustrate: In Pennsylvania it was once
provided that "aii marriages shall be soie,l-
m ne ny taking each other for husband and
held to be good not celebrated in accordance
with the statute; and where marriage without
Il License is prohibited, as Is the case nearly
everywhere, it is not invalidatcd on account OF
failure TO procure one. For d;Sreyardng the
statutory requirements, however. the parties Or
consequences, rs, for example, in Maryland,
where the parties and ceebrant are liable re-
spectively to IL fine OF 800.
In regard to the particular point whether q
good and binding marriage may may not be
constituted by the mere content Of competent
parties, unaccumpanied by any religious or
vided into three classes, as follows:
FIRST. Those states recognizing mere present
stitutc the marriage relation;
Second. Those refusing to recognize such con-
sent as sufficient; and,
Third: Those where the question Is in doubt
on the decisions, or remain still undecided.
1t Is not convenient to follow this classifica-
tion here, but an orderly prcsentncnt OF the
ton OF marriage will be found in the list below
- IN, 1Si3, the Supreme Court, Chef Justice
fancy delivering the opinion, were equally
divided upon the proposition, whether Il mar
rfage by mere consent (Dr per rerOa de praeseat,,
as il is styled, constituted a valid marriage:
but in 1917, opinion by Justice Strong, they
keatucky is the only state in the Union
where marriage without or by other than the
UIcScT1DeU ny the statute Is nnue
absolutely void by express words of the statute.
before the statute, however, the courts had
held that ceremony was not necessary at
common law, and, therefore, not required in
Kentucky.
maryland AND MASSACHUSETTS.
Though the statutes OF Maryland and Massa-
chusetts contain no words of nulIity, yet the
courts require concordance with their pro-
visions, on the ground that a marriage never
could he constituted in those states Gy mere
present contract. a
sole1nntZation. And In Maryland not only
must there be Il formal celebration, but q
law OF the state, and is enforced vigorously.
The statute which is declaratory OF that law
enac!s that "tiie rites of marriage are not 10 be
celebrated by any person except a minister
ordained according to the rites or ceremonies o.
his or her church.. Or by the Friends Once it
was held otherwise, aud tile intervention OF one
i'll orders Was thought unnecessary, but the
subsequent and now ie;,diig case OF benson vs..
Denison t35 ND. 3U1, 1877 II decides snch inter.
vention to be essential to a valid marriage.
Still II Maryianders desire to evade the require
inents OF their law, they need only step into
Pennsylvanla, where they may marry by con.
sent, Or before a civil officer, and return imme.
dIately to Maryland, and the marriage will be
valid.
In Massachusetts 1t was early decided that a
conformity with the statutory prescriptions was
requisite, and that parties could not solemnize
their own marriage.
a SECOND ADvENTIsT's MARRIAGE NOT VALID
This position was somewhat shaken by sub
sequent decision, and Mr.. Justice Strong in his
opinion heretofore referred to expressed doubt
if it would be maintained; but the recent and
very remarkable case OF Common wealth VS.
Munson QS10) leaves the law OF this state
clearly defined and determined.
This was an Indictment, under the statute
against q man for improper intercourse with {;
certain woman He pleaded that he was her
lawful husband, their marriage having been
performed according to the ril es of the sect o
which they were members, at IL public meet
ing, and III the presence OF about nifty persons
No third person participated, however, and nc
minister or magistrate was present.
Judge Gray, now OF the Supreme Court OF tho
United States, rendered the decision hoIdnu
any circumstances, by their own act murr.
themselves, not even though in the presence o
witnesses and by words like the following:
"ln the presence OF GOO and these witnesses
take the woman whom hold by the right
hand, to be my lawfully welded wife to Ivyt
and to cherish unt:lthe coming of our Lord es,l.
Christ, or till death us do sever"
The parties were Second Advcntists, and
these were the mans words; the wolnans re
Spouse was: "And now take this man 10 bt
! my lawfully welded husband, To love, rover
ence and obey him, until the Lord himself
shall descend from Heaven with Il shout anC
the voice OF the archangcl, and with Tho
trumpet OF God, or till death shall us sever"
In addition to this ceremony, the parties hat
previously entered the notices required by Law
with the town clerk, and afterwards returned
A Liberal NEW YORK DECISION.
Numerically opposed to this case is the opin
ion Of the New York court Of appeals in a cas-.
before it only little while later Chief Justic,
Eol.er propor need the Judgment Of a un,,;