Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-11-16
DR.. L.LOYD's PAPER.
LITTER INTERESTING ARTICLE
sO FROM HIS PEN.
FAMILY. Its Importance and Peril.
fbe Marriage Celebration in the
limited States-Some Food
for Thought.

u ~ -. laws Of certain leading nations
eoIIL. " respecting marriage. In this, it
o. L-., ,,nroose to inquire how this grave
yo- Is legally regarded in the United
rS.'o- We beg in the outset to again ac-
s:,.s77,fca our indebtedness for valuable
sl,o~..,-,r;,;r on this point to an article of
GAYLORD Cooks IN the Atlantic
!!!Fn.Fly Tor April, 1888:
" E,os saws: in the early part of this
- there arose in the courts discus
en-, the nature of our common law,
500 = r,..a,ion 0. that Jaw to our statute
8. -,,,c.r.,,ng the celebration of mar
a' discussion which since then has
T.essg,'-lv increased, and has gradually
,..-.-Tr bout a revolution unparalleled IN
- fi,ror. OF our SUBJECT Inc olher great
" ~" brought some needed reforms. The
c..--.i NJ Trent emphasized the religious
J.-'. - rb, celebration; the independent
S'r..nf in England and in the American
5- asserted its property as personal,
Gu Nh civil. right and the French revolu-
-I...,are., its permanent Importance IS
.'-s-frl.;!ou Of society. But this reyolu-
~ In IKE United States has brought no re-
@ On the contrary, 1t has destroyed
..,,r.=al system and has introduced INTO
much Of the insecurity, the irreyer-
.- -I. license, of the middle ages. Our
O. -I-.,. l..v today is the canon law that
~. .,.,fr- 10 The Council of Trent. The
SSA.,,,ssi.u :r9se in this wise:
-. ,s.,,.. before the courts in which it
..,.i.1,r,.ad 10 establish the validity of
-, ., cr.cbratcd not by the statutory
s.r-f.l-.,s. nut simply by the parLles' prl-
-,,..,,..,-,...,ncnt to b. husband and wife;
'-i t-,. GROUND taken was that such
1-,-ris.sas were valid by the primary or
~r.. laN u was argued that the
,-.s.,.a canon law of the continent,
LIN ID constitute marriage, requircSa
.,r..,g the consent of the parties, becan,B
-, common law. and brought as Su9h
Ms country by the English colonisf,
'~,s .gr urinary fundamental, or commd9
r,r.. thai IS a general principle Statute is
-. elective 10 repeal the common law IN
r.- +. indicates such intent in express
.rrrs and hence rs the statutes prescrib-
mi l.lities I'D not expressly declare
marriage celebrated without them,
s..t informal celebration (thG mere agree
,-.rr If the yartiGs) constituted marriage
4 rl4muu law
Tia, value of tins quotation from Mr..
g,,, fus'iucs It's length and enables US 70
.r.,. clear understanding OF the subject.
liz, res ABOVE referred 10 was first advo-
..f.F ty Chancellor Kent, who, as chief
,.s,;re If The state Of New York in 1909,
hold that 'nO formal sciemnization OF mar
= 2. was requisite. \ contract OF mar
ri re made per yrrba de present., amounts
-5gl actual marriage, and is as valid as if
-ra.o in face ecclesiCa." This statement
MAS based on no American authority, was
nova. 10 American courts, and was incon-
sister. with The statutory system that had
cone a,arn from colonial times. Neverthe
less. i went FIR to settle the law of New
York and his been cited throughout the
country with the spread, and Ill support of
.se doctrine which it introduced. In 1914,
of aria
CURED with the view Of the New York jus.
ice. and hli that "a marriage was ciVi.
contract that might be completed by any
words IL the present time, without regard
70 form:' and it was not absolutely
necessary 10 be done before 4 clergyman or
amaEiStrate.'
il would be difficult TO conceive of more
ger.icj0Js Interpretation of common law,
ana YET. bad As it was. this new and dan
yer.s doctrine found many courts to support
l.d a0u.J. Il. IN 1920, Judge Levi Wood
berry q .'rw Hampshire, later q justice of
the supreme court OF the United States,
ueld that che power of the contract of
marriage - a mere civil contract is well
enough established, and if the contract be
Ter yerba do prescuti the marriage is COM
I.r,e." So in 1921 Chief Justice Boyle of
kentucky held that neither the statute OF
Indiana nor of this state voidS marriage
act celebrated according 20 its provisions.
In ls96 Chancellor Kent stated his doctrine
more fully and laid the foundation upon
which mainly the later authorities rest. He
says No peculiar ceremonies are requisite
1y h common law TO the valid celebration
u marriage The consent of the parties is
al that Is required. This is the doctrine of
me common law and also of the canon law,
which governed marriages in England prior
10 Lord Hariwlclle's marriage act OF l,53. =
IN lNi2, the Kent doctrine was accepted |
Dr. '-o court Of appeals of South Carolina. |
lr 49, Prof. Simon Greenleaf in his |
.'lr-rj treatise on the law OF evidence ad- |
Ealred the same doctrine, anu makes a
very lucid and authoritative statement |
'ulthNy the relation of the statute to the |
common law. He declares marriage is d |
c.T.. contract, 10 ,the validity of which the I!
consent of parties able to contract is all |
Shat is required by natural or public law. |
IND though in most, If not all, the United |
States there are statutes regulating the |
marriage rites, and intiicting penalties on |
sa WHO Gisebey the regulations, yet ii is |
ans Positive statute declaring that all !
marriages rot celebrated in the prescribed |
Il luieC shall be absolutely void, or that |
D.t- .'lt certain magistrates or ministers
2a1. sucmuiIe a marriage, any marriage
'aE- 7riy Elade according to the common |
aw, without observing the statute regula-
.u.'. would still be 4 valid marriage
This doctrine was adopted in Louisiana in |
~. ~ California in 1852, by Mississippi /
III l>'f. by Georgia in 1860 by Ohio in 1861,
= Ae1araa In ls69, by Illinois in 1878, by
N.tLi:.'a 10 is'5. by Iowa and Missouri in
40 ;nd 10y Minnesota in lS11. Worst OF
l- ia - The supreme court of the United |
>'',.s I'D 20 the same position. Justice
:. 'a- av-5vcned The opinion, and said: "A
s4'U'. gay declare that no marriages shall
~ valid Unless they are solemnized in a
.NFS r'I"'t manner; but such an enactment !
~ Very different thing from law requir-
..t 40 'E,.iITa -es to be entered into in the !
lEeStae. ii a magistrate or clergyman, or
..' I he preceded by license or publica-
noa Of balns. or be attested by witnesses.
: -c0 formal provisions may be construed
is merely directory. instead Of being treated !
- destructive II common law right TO
-1'il the 1.arciage relation by words OF /;
PRESENT corTeik"
p. he decision of the supreme court of the /
I n.'2o states has had great influence upon |
.He sla.e courts. Wisconsin adopted the
! 2ltGlre in 1879, Florida in 1880, Rhode
IS .no IN 1884, Indiana in 1885, and Kansas in
Ger courtry is fortunate, however, in
IA, from the first, the Kent doctrine has
15, via opposition from small but re-
sIr'tae.e body OF judges and writers. Not
'a.y . tley deem it peTpicious TO society,
-l ,aay attack the historical premises
iron which TIE argument in its support is
IaSe1 ihey DENY that the canon law of
-e vOHN?ent ever became English common
az ana hGEce that mere consent was ever
'-'-2-ent in England, though it was on the
l'''ueut, TO constitute complete marriage.
-hey assert that by the English common
az mere consent could constitute only an !
Lcoeaie Gnion--indissoluble to be sure, but
Z .i.rIrg 20 compel its completion, the in
=. 9ostiOa Of the ecclesiastical court; and
as ecclesiastical Jurisdiction being incon-