Year: 1875

INDIANAPoLIs, June 2S.-In the
Marion Criminal Court Judge Chapman,
to-day, rendered the following decision
in the case of the State against j. K.
Buell. and Susan 5. Gilbert, indicted for
fornicatIOn:


Regarding the various provisions of the
statute together, it seems to stand in all
forms with the common law in regard to
the effect of the absence of the
ceremonial forms upon the validity
of marriages. If either of the
parties to the marriage, regard it as Il
union rs husband and wife, it shall not
be either void or voidable, because the
requirements of the Statute in regard to
license or solemnlZation have not been
complied with, and it seems probable,
by the proviSO to Section three,
that where parties take out Il marriage
license and acting under that license APP
pear before any persons and pronounce
by or through him an agreement to be-
come man and wife, the marriage will he
valid, and the parties held to the contract
without any regard to the belief the
party may have entertained in regard to
It's legality, especially if followed by co.
habtation. but the decision of this pro-
position is not necessary to the case in
hand. The defendants took out license
and in the presence Of certain witnesses,
themselves solemni2ed ceremony OF
marriage, and took each the other for
husband and wife; respectively using
each the form of words, hereto
tore set out without the interpo-
sition of any other persons.
save the persons who appeared in the
character of witnesses, The only portion
of the formula used by the deiendadt in
this portion of the ceremony to which an
exception is taken, is that embraced in
the words, $50 long as the union OF love
and life shall last" But do not think
these words are very significant, nor that
they or any Other words which
NAV be employed in a marriage
ceremony touching the deviation
of the contract are OF any legal force, or
in any way qualify the contract, i the
parties agree to be husband and wife, and
presently thereafter assume the status the
law settles. The nature and deviation
of the contract and any stipuIations the
parties might make in regard thereto
would be mere idle words Or mawklsh
sentiment. If the forms now under re-
view had been pronounced by an author
lied person, the marriage would have
been good and regular. If they had been
used By an unauthorized third person,
that incapacity of the person
solemnizing would have been
invahdated. The marriage and all
that can be said in this case, is that the
person solemnizing and pronouncing the
marriage, namely: The parties to the
contract, were not made capable by the
statute of solemnizing the marriage.
II is difficult to conceive how any addI-
tional strength or sanctity would be
given to II marriage contract where the
formula has been said in the
first instance, by some third per-
son incapable of solemnizing
marriage by the statute, or by reason Of
any priestly or official function OF which
he was possessed, and repeated after him
or asscntcd to by the parties themselves.
The incapacity of such person would
be a. complete as could be; but
the defendant, Buell. testifes that he
believed at the time of making his mar
riare contract with Miss Gilbert, that it
was u legal marriage, and he further tes-
tilted in answer to cross interrogatiVes
bv the States counsel, that
Miss Gilbert stated at the time that she
believed it to be legal Counsel ior the
State admit that if either party believed
the marriage legal at the time he or she
entered into the relationship, that it will
stand. 1t is argued, however, that from
the adopted and especially from the So
called agreement, which was signed by
the parties, clear conclusion may be
drawn that the parties did
not, either of them, regard it
as legal marriage, which, whatever
may be said of the want OF wisdom and
good taste of some of the sentiments eX-
pressed in the so called agreement, l
do not see that it overthrows the teSti-
mony of Buell. in regard to his belief
concerning the legality of the marriage,
especially when l regard his statement
that he supposed that he could he divorc-
ed from his wife, only BY decree of
court, and that his position in the agree
ment was only sentiment or protest
against existing laws and preiudices.


No Legal Efficacy.


Neither do | think this agreement has
any legal efficacy, for two reasons. First,
it was signed after the parties had pro.
nounced themselves husband and wife in
public, and it may be solemn manner.
Second, because if it be regarded as q
part of the marriage ceremony no part of
it has any legal force, except that which
says that they agree to assume the relation
OF husband and wife, and that, | think,
has full force and effect. WI the par
ties meant by the protest against the as
sumei right of others to interfere with
that which concerns only themselves, it is
difficult to say with certainty, from the