Year: 1875

GarefnlsY Covered Dy the NSoHN-


A Free Lose Contest Void


and vicious.


INDIANAPOLIS, June 28.-In the Ma.
rion criminal court, Judge Chapman to-
day rendered the following decision in
the case OF the State as. J. r. BCell and
Susan D. Gilbert, indicted Tor fornica-
ton: Opinion regarding the various
Or visions of the statute together, 1t
seems 10 stand on sll forms with the
common law in regard to effect OF the
absence of ceremonial forms upon the
Iidity of marriages. II either Of the
o trties to the marriage regard 1t as
union as husband and wife it shall not
be either void or We 'tal because the re-
uuirements Of the statute III regard to
license or solemnizatiOn have not been
complied with, and it seems probable
by the prOvisO u section three that
where parties take out marriage
license, and acting under that license
sppear in person and pronounce by and
through him sn agreement to become
man and wits, the marriage will be
valid aRd the parties held to the con-.
tract without any regard to the belief
the parties may have entertained in re-
gard to its legality, especially il fol-
lowed by cohsbitstiOn; but the decision
of this proposition is not neces-
sary ID the case in hand. The
defendants took out license,
and in the presence of certain witnesses
themselves sOlemnized q ceremony Of
marTisee, and took each the other for
husband and wife respectively, using
each the form Of words heretofore set
out, without the Interpretation of any
other persons save the persons who ap-
peared in the character of witnesses.
The only portion Of the formula used by
the defendants in this portion of the
ceremony, in which all exception is
that embraced in the words $50 long as
the union of love and life shall last;"
bat l do not think these words are very
significant, nor that they or any other
words which may be employed in mar
riage ceremony touching the duration
of the contract are of any legal force or
in any way qualify the contract. Ii the
parties agree to be husband and wife,
and presently thereafter assume the
state, the law settles the nature and
duration of the contract, and any stipu-
latiOns the parties might make in regard
thereto would be mere Idle wOris or
mawkish sentiment. II the forms now





an authorized person the marriage would
have been good and regular. If they
had been used by an unauthorized third
person, that incapRcity of the person
solemnizing would not have invalidated
the marriage, and all that can be said in
this case is that the persons sOlemniZing
or pTOnOuncing the marriage-name-
ly, the parties TO the contract
were not made capable by the statute
solemniZing the marriage. 1t is difficult
to see how any additional strength or
sanctity would be given TO marriage
contract where the formula has been
said, in tEe first instance, by some third
person incapable OF sOiemniZing the
marriage by the statute by ressan Of any
priestly or official function Of which he
was possessed, and repeated after him,
or assented to, by the parties themselves.
The incapacity Of such a person would
be as complete as could be-that is, the
parties to the contTsct-and the imprO-
prlety of his action certainly as grave.
But the defendant Buell. te5tifies that he
believed at the time OF the making Of
his marriage contract with Miss Gilbert,
that it was legal marriage, and he fur
ther testified to answer, in cross inter-
rogatOries by the States counsel, that


a.
believed it to be legal. The counsel for
the State admit that il either party be-
Heved the marriage to be legal at the
time she entered into the relationship, 1t
will stand. 1t is agreed, however, that
from the form adopted, and especially
from the so-called agreement which was
signed by the parties, clear conclusion
msy be drawn that the parties did not
either of them regard it as legal mar
TiRge. Whatever may be said of the
want Of wisdom and good taste of some
Of the sentiments expressed in the So
called agreement, do not see that it
OverthroWs the testimony of Buell. in
regard to his belief concerning the le-
gality OF the marriage, especially when
l regard his statement that he supposed
he could be divorced from his wife
only by decree of court, and
that his provision in the agreement was
only sentiment or protest against eX-
isting laws and preiudices. Neither do
| think this agreement has any legal eff
ticacy, for two reasons: First, 1t was
signed after the parties had pronounced
themselves husband and wife in pub
lie and, it may be, solemn manner.
Second, Because, if it be regarded as a
part OF the marriage ceremony, no part
of it has any legal fOEce except that
which says that they agree to assume
the relations of husband and wife, and
chat, ! think, has full force aud effect.
What the parties meant By the protest
against the right of others to "interfere
with that which concerns only our.
selves, " it ia difficult to say with certain
ty from the language employed, but
may presume it Is OF little consequence,
as it is Immediately followed by an ex-
preston of an Intent to comply with the
laws Of the State, and the parties agree
TO assume the relations OF husband and
wife, with all which these terms i'm
ply" etc. Then follows this language:
Whereas, the courts Of lSw have decid-
ed that merriage is civil contract, and
governed by the same rules as all
other contracts, Therefore we here
by agree that this contract exist
and be in force during our physical
lives, provided our mutual love natures
ever blend as they do now, but to ter
inmate without prejudice by the wish of
either party if the love of either ever
ceases to be mutual, which event We
trust and believe never will Occur.n 1t
is this feature which counsel fer the
State, as l understand them, urge with
most confidence, as showing that nei-
ther party believed the marriage legal,
and that, therefore, it is void, and it is
this feature, which has excited, justly as
l think, some measure of public iDdig-
nation. But | do not think it shows
that neither party believed the marriage
to be legal. ItdOesshOw that they were
ignorant of what the courts Of law have
decided. II it were the law that mar
rage WAS civil contract, governed by
tla oil
then it might follow that the parties
thnrntn mi -rht tam OF Tho nnrntrnn+