Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1885-08-14


Constitutes n Valid Marriages.
Clergyman Necessary TO IA marringe'
what the Law IL In Various states
where Common Law Marriages or
Marriages by Consent Are Not Valid,
Etc.
Washington Star.
1t is an interesting fact that the law
in this country concerning marriages
by the mere consent of the parties, or
common law marriages as they are
sometimes called, is, at this advanced
dav. still in q state Of singular un-
certainty.
Public attention in this city has
been drawn TO the subject by the de.
cision in the recent divorce case OF
Peck against Peck, Published III the
Star. and some account Of the law OF
the several states in reference TO IN
formal marriages may, therefore, be
considered timely. The decision re-
ferred to was To the effect that mar
rage in the District of Columbia not
solemnizGd by clergyman, or other
person duly authorized to perform the
marriage ceremony, was invalid and
null and is opposed to what hi!her-
To was deemed the settled law of the
district.
Inabut'three states, Kentucky, Mary
land and Massachusetts, does it appear
to be finally and definitely settled
that a solemnization is necessary.
There is, however, but little doubt
that n celebration would also be re o.
CURED in Delaware, Maine, North
4 TAyug nd
bly, Connecticut
As concerns the Prescriptions OF
marriage, proof of actual cOhabltat on
as husband and wife, acknowledgment
and recognition of each other as such
To friends and the public, and general
reputation or marriage, except IN ac~
tons for criminal conversation, pol
lygamy and the like will suffice to
presume or evidence an actual mar
riage IN nearly every community. But
IN regard to what constitutes marriage
us coutradlstinguished from what
evidences marriage, there is, unfor-
tunatcIy, no such unahlmity.
All the states have statutes provid>
ing for and regulating the celebration
OF marriages, what permission must
be obtained or notice given before the
ceremony, who may or must perform
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 or pros
hibitory, not declaring the marriage
void, nor even implying that it shall
be void, nonconfurmance with their
provisions And while it is true in
very many cases that where n statute
directs thing to be done in a particu
lar way il is void if done in any other
Ranner, still, us respects statutes re-
laung to marriage, this construction
has seldom been adopted. On the
contrary, the doctrine may be said TO
be established that unless statute IS
mandatory, unless by express words
IT goes to the validity of marriage
contains unmistakable words of multi
ty, it will be construed to affect the
legality of the marriage, and not its
validity. AS the Supreme Court says
statutes only prescribe The mode of
entering into the contract; they do
confer the right, though, without
question, they may take il away, but
then only when express words of null
ity are used. -Melstcr VS.. Moore. Sc
Y. S, rs, 1877.
To illustrate: In PENNSYLVANIA it
was once provided that ''all marriages
shall be solemnized by taking each
other for husband and wife before
twelve witnesses Marriages were
held to be good not celebrated III &C,
cordance with the statute; and, where
marriage without license is prohib.
tied, as is the case nearly everywhere
IT is not invalidated on account of
failure 10 procure one. For disre
garding the statutory requirements,
however, the parties or third persons
are generally involved in penal con
sequences, as for example, in Mary
land, where the parties and celebrant
are liable respectively 10 fine of
800.
In regard to the particular point
whether . good and binding marriage
may or may not be constituted by the
consent of competent parties, uuac.
companied by any religious or civil
ceremonies, the states may properly
be divided into three classes, as fol
lows:
1. Those states recognizing mere
present consent by parties capable as
sufficient 10 constitute the marriage
relation.
. Those refusing TO recognize
such consent as sufficient; and
3 Those where the question is in
doubt on the decisions, or remains
still undecided.
1t is not convenient to follow this
classification here, but an orderly
preseument of the individual state
laws touching the solemnization of
marriages Will be found in the list be-
below.
In 1913, the supreme court, Chief
Justice fancy delivering the opinion,
were equally divided upon the propo>
Sitlou, whether marriage by mere
consent (or per verba de presenti, as
1t is styled constituted a valid mar
riage; but i'll 1877, opinion by Justice
Strong, they agreed that it did.
kentucky is the only state in the
union where marriage without, or
by other than, the celebration pre-
Scrlbed by the statute is made abso,
lutely void by express words of statute.
Before the statute, however, the courts
had held that ceremony was not
necessary at common law, and, there.
fore, not required in Kentucky.
MARYLAND AND MASSACHUSETTS.
Though the statutes of Maryland
and Massachusetts, contains TO words
of nullity. yet the courts require a
conformance with their provisions,
on the ground that marriage never
could be constituted in those states by
mere present contract, and was void
without a solemnization. And in
Maryland, not only must there be a
formal celebration. but a religious
one; this is held to be the written law
of the state, and it is enforced vigor~
ously. The statute which is declara>
tory of that law enacts that "the
rites of marriage are not to be cell
ebrated by any person except minis
ter ordained according to the rites or