Evening journal., 1921-06-04

been so universally in conformity
with what would appear TO have
been the policy and requirements OF
the law, that such custom has ac- /
quired the force and sanction Of law /
even though a question could be Z
made as 20 the technical construc- /
tion Of the act itself"
We do not think Il necessary TO
discuss the question. whether the
civil or canon law. under which a
non-ceremonial marriage was valid,
became a part Of the common law OF
England and was adopted In this
country after the separation. Many
courts have ably and learnedly dis
cussed the question, but 10 is per-
haps OF historical rather than prac-
teal interest now.
In Milford VS. Worcester( Supra),
the court said: when our ancos-
tors left England. 70 Is well known
that In a lawful marriage there must
be celebrated before a clergyman In
orders"
In the Denison case above mem
TONED it was said:
But the civil and canon laws. as
such. never had force In England.
They were regarded and accepted
only as part OF the common or un-
written law"
1T is true the common law OF
| England has been adopted by the
people OF thi- State but only so far
as II could be made 20 it and ad-
lust Itself TO our local circumstances
and peculiar conditions The eccle-
siastical polity of England forms no
part OF the common law as We have
adopted II. We have In our system
no tribunal. as in England. clothed
with power and jurisdiction to en-
force the solemnlzation OF marriages
between parties contracting per
vcrba de praesenti."
"In the celebrated case OF Rog.
vs Mills. 10 Cl and Fin. 534, In the
House OF Lords CS43). the opinion
Of the judges Of England was taken.
and by their unanimous opinion 10
was declared: That by the law Of
England as Il existed at the time OF
the passing OF the marriage act. a
contract Of marriage per verba de
praesenu, was contract indissoluUle
between the parties themselves af-
! fording TO either OF the contracting
parties by application 10 the spiritual
: court the power OF compelling the
= selemnization OF an actual marriage.
b but that such contract never con-
] stituted a fun and complete mar
{ riage itself. unless made IN the pres
s ence and with the Intervention OF a
5 minister In holy orders. "
- In the case Of Commonwealth VS..
Munsan (Supra.). IL was said:
E I'm Massachusetts, from very early
- times the requisites Of a valid mar
{ riage have been regulated by stat
{ utes Of the colony. province and
s commonwealth, and the canon law
r was never adopted. and Il was never
e received here as common law thai
20 parties could by their own contract
Z without the presence OF an ofiiciatinl
r clergyman or magistrate. take each
- other as husband and wife, and g,
n marry themselves"
e We are OF the opinion that tn,
a civil or canon law respecting mar
- riage. even II It became a substantive
a part OF the common law Of England
q was never adopted In this State.
d There would probably be no dis
.r sent from our conclusion. that IN
3 marriage In question was not a vail
,r marriage, II our present law did n,
apparently recognize non-cer'
& monial marriage by providing TIT
i- a common law or other marrial
lg otherwise lawful should not tr~ a
ng fected by the failure TO take out
OF license.
90 It is not easy to tell just what q
10 legislature meant by this expire
lc sion. but In view Of what Legisl
ad lures in this State had done In pr
4 scribing what should make a leg
er marriage and their great particular
is lty in directing the proper procedur
be- the conclusion must be that the q
ln preston means simply this.-that
a. a marriage had been performed
t- compliance with the laws OF N
TO state In all other respects. IL woul
ne not be held invalid because Of N
h. failure TO take out a license there
g. for That being so. the Legislatui
h. marriage required a ceremony
some kind. and was something mol
d. than a civil or canon law contrac
~ There Is authority 10 support or iu
tify such thought as appears frol
e. the cases above mentioned.
in 4 II is impossible TO escape the col
G. clusion that many courts In Ia
Re country have construed marriai
ln laws very literally because. as q
ia Rhode Island court expressed Il. "
no make marriages void and childri
on nlegitimate, by implication. is SCI
~ GUS thing" The desire TO make q
De offspring Of informal marriag
r. legitimate is Of course, commendab
al and legalizing such marriages wou
rit be equally so II they were enter
a. into with an honest intent by eth
lct party. that is. with the belief th
Ia frrN a.