Los Angeles daily herald., 1888-11-11
IMPERATIVE Need for Whole
some Legislation.
AN ALARMING STATE OF AFFAIRS
In the United States the Law OF the
Celebration of Marriage is
Shamefully Deficient.

universal. Moreover, as settlers OF the
same race and faith usually dwelt to-
gether, there was unanimity of sentiment
in the protection of the common interest
and the maintenance Of social order.
Hence the statutory forms for the ceie-
bration of marriage were generally OBJ
served. Though not all-essential, the
impartiality with which they were en-
forced spread abroad the salutary i'm
preston that they were equally indis-
pensable to constitute matrimony.
Now, this is a great, a rapidly-growing
nation. There exists the widest diversity
of race, religion and sentiments. Popula-
tion is congregating in cities. Labor, for
saking the fields, is crowding into factor
les and tenements. In the shops, in the
factories, in nearly every occupation, at
great odds and under peculiar tempta-
tons, women compete with men in the
selfish, exacting struggle for preferment
for daily bread. Industrial struggle and
discomfort and social evils are rife in the
community. In view of these
facts are We fortifying our
social institutions, and strengthen
ing the foundations of social order :?
And the family-the unit and the source
of society-are we guarding its dignity
and confirming its approaches by the
sanctities of religion and the safeguards
of law? Nay, our courts are forsaking,
not protecting, are tearing down, not
building up, "the very basis of the whole
fabric of civilized society" For the
knowledge is rapidly spreading from the
highest courts in this country that in
forming the marriage relation there is no
need of magistrate or minister, or OF any
formality whatever. SIT is singular"
said Chief Justice Gilchrist, of New
Hampshire, "that the most important of
all human contracts, on which
the rights and duties of the
whole community depend, requires
less formality for its validity
than conveyance of an acre OF land, a
policy of insurance, or the agreements
which the statute of frauds requires
should be in writing" What wonder,
then, that the disregard of the "legis-
lative recommendation and advice" is
constantly increasing, and the evil OF
by destroying the integrity OF the family,
ciety? Can the courts deny an
which they permit so easy an entrance
"The contract OF marriage is the most
important of all human transactions )"
yet, the form and circumstances of its
execution being left to the will and
caprice of the parties, it's existence may
be involved in the utmost uncertainty
and obscurity. "Whether the relation
of husband and wife lawfully exists
never should be left uncertain" These
are the words of Chancellor Kent, and
yet it is corollary of the doctrine which
he introduced that the exietence of this
contract, when judicially called in ques-
ton, may be established merely by evi.
dence of the subsequent conduct of the
parties and of their reputation in the
community.
But it may be said that, in fact, sec
recy and uncertainty are rare in forming
the marriage relation, because custom
and public sentiment are as rule able
to secure the observance of religious
forms. This assertion, ever if admitted
to be true, is not pertinent. For the law
must be shaped so as to control, not
those who follow, but those who disre-
gard custom and public sentiment. 'The
system OF irregular marriage now per-
mitted by the law in Scotland" says the
report of the Royal Commission on the
Laws of Marriage, "appears to US to be
irreconcilable with the principle that, in
contract of this importance, the law
should aim at the attainment OF the
greatest possible degree of certainty. To
whatever extent its operations may be
narrowed or corrected by the sentiments
and habits of the people, it seems to us
undeniable that it opens the door to
much doubt and uncertainty"
By the law of nature, marriage may be
constituted by the mutual present con-
sent of competent persons, without the
addition of any formality. Such is our
prevailing or unwritten common law to-
day. Hence, upon this matter of vital
and universal concern the United States
has the minimum of civil regulation and
requirements law of nature as it
exists among savage tribes, and as it
was in the Middle Ages, the darkest
period of modern times.
But in the United States this law ex-
lists not only at critical period, but also
at certain points. The Kent doctrine is
spreading without dissent throughout
our Western States and our Territories.
In many, if not in the most of these,
society is still in its formative stage. Its
COu6tI uCtlt0, lOTC05 dTo dlT6duY
severely taxed in their struggle toward
law, order, morality and religion. As in
all communities, society in the West
must center about the family and upon
the fate of the latter the fate of the
former must rest. What risk, then, Is
run, while the courts disclaim and the
Legislatures disregard all responsibility.
Another significant and startling fact
is that this is the law also in localities
possessing the largest Negro population
lin South Carolina, Georgia and all the
Gulf States except Texas. Even in the
last it is not yet judicially rejected. The
worst effects of slavery upon the Negro
were not material, but intellectual and
moral. Since the war his material con-
dition has been rapidly improving. Has
his social condition made equal progress
The responsibility of the community for
its weaker classes is generally recognized.
How can it be better discharged than by
. speedy and adequate amendment Of
the law of the celebration of marriage?
But it is fact still more grave and
portentious that in our great centers of
populations, in nearly all our cites, the
legal status of marriage may be consti.
tuted simply by q private agreement be-
tween competent persons. New York,
Philadelphia, Brooklyn, Chicago, Gin
cinnati, st. Louis, New Orleans and San
Francisco are all situated in States that
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