The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1898-02-25
COMMON LAW MARRIAGES.
Their Validity Dependent on the
Conditions.

To The St. Paul Globe.
The sentiment of Judge Rumsey. appellate
division, supreme court, New York, which
Is quoted in your article Of Feb. 81 on THE
Common Law Wife" Is not decision, but
an obiter dictum, conveying no information
as to what the decision was I infer it to
have been that the woman in this particular
case had not proved a common law marriage
There is nothing novel about that Plenty Of
alleged common law marriages have been in
vestigated by the courts, with the result that
same s. Were held to be proved and some not
1t Is dlsputable question what proofs are
satisfactory, though some are unimpeachable.
For example. a written acknowledgment of
marriage mar s1a signed by both parties. has always
any way effects the general principle of the
common law. That principle is that marriage
by cohabitation. Being common law princi-
pie, this is extremely old. AS Judge Rumsev
says, it is something more than Common
law principle. It Is principle of the civil
the laws of the Roman empire and of the
republic before the empire; was embodied in
the code of Justintan, into the Jurisprudence
OF all modern nations. 1t Is also principle
of canon law. The Roman Catholic church
insists, more than any other, on the sacra-
mental and formal character of marriage
but she recognizes. as binding a marriage Of
9ualined parties by consent, without eere-
marriage, as to many other irregular begin
nings of a status, is fieri non debet sed fac
tum Valet-"t hadn't orter be done; but
being done it can't be undone." The state
proceeds in exactly the same principle. The
state indeed, can make statute invalidatng
irregular marriages; but, such statut e
would be penal 1t must be explicit. The
validity of marriage at common law Is not
anected by the circumstances that the mode
OF contraction is statutory midmemeanor
unless the penalty Of invalidity be expressly
| provided for by the statute. The maxim
about not profting by ones own wrong is
| quite inapplicable. for the parties are
pari delicto lone as bad of the other) The
wrong by which no one profit is the
wrong done by the plaintiff appellant and not
the defendant or respondent, as when one
party has deceived the other and seeks to
enforce claim originally obtained by fraud
Statutes making irregular marriages null are
not numerous. There Is noted one in Eng
land: Lord Hardwick's act. But it is for
england alone Scotland never received it.
In America, except as special legislation by
states may have interviewed. the common law
is In full operation, see Bishop Marriage
and Divorce. The real interest of litigation
like that mentioned in your article turns on
Of judicial proceedings was to protect the
property of the man, while here it has been
| to protect the natural claims of the woman
and the children. The judge who rendered
the most important decision Of the class upon
record. expressed this tendency in an ot,fter
dictum, which offsets the other quite epgram-
maticaily: 'If mon, who intended seduction
| has blundered into matrimony it Is not the
business of the courts to get him OUT
e &C. L. James.
Eau Claire. Wis.,. Feb. q, 1885,