[874] American witnesses for the claimant were E. J. Phelps, the United States minister, S. P. Nash, and C. Cary, of the American bar. Those for the counter-claimant were R. L. Fowler, of the American bar, and G. F. Edmunds, chairman of the Committee on Judiciary of the United States Senate: Law Reports, X, 728 n. 1. See also Webster, Opinion on the Law of Marriage in the Col. of N. Y. (New York, May 26, 1885); Seward, Answer to Interrogations of Brodie and Sons (New York, June, 1885); and Fowler, Letter and Opinion (New York, May 11, 1885). Copies of these three opinions are in the State Library, Albany. Written opinions were also submitted by James C. Carter and William Evarts, of New York.
[875] In Law Reports, X (1885), 692-762; and in Cook, Reports of Cases Decided by Eng. Courts, XXXVII, 341-69. The case was referred by the House of Lords to the Lords' "Committee for Privileges" for hearing.
[876] Law Reports, X, 693.
[877] Ibid., 794.
[878] This opinion is not convincing; for the common law had not been "established," in the sense of enacted or declared; nor were there any British statutes which bore upon the marriage celebration in New York.
[879] By the law of 1828 it was declared that a marriage, "so far as validity is concerned," is a civil contract "to which the consent of parties capable in law of contracting, shall be essential."—Revised Statutes, 1827-28, II, 138.
[880] Webster, Opinion, 2 ff., 55, 59, 70. He cites Fenton v. Reed (4 Johnson, Reports, 51), in favor of validity of consensual or common-law marriage; and Milford v. Worcester (7 Mass. Rep., 48), on the opposite side. In substantial agreement with Webster are the opinion of Seward, Answer, 1-53; and that of Fowler, Letter and Opinion, 60, 61, passim, who to prove the validity of the duke's law cites the cases of Fabricius and Ralph Doxy, above discussed.
The counter-claimant also produced the case of Dan Sutton, sentenced for bigamy and bored through the tongue with a red-hot iron in 1672—a case plainly irrelevant, so far as the question of marriage contract is concerned; and likewise the case of Mary Jones, 1680, for having a bastard child, "she pretending to be married before delivered; but without either license or publication. She was fined £5 or to receive twenty stripes on the back"—a sentence which perhaps tells on the claimant's side, for it punishes an illegal act, but says nothing of nullifying the marriage; or, if the marriage may be regarded as invalidated by implication, the sentence is illegal as contrary to English law. For these citations see Law Reports, X, 733.
[881] Evarts's opinion cited by Cook, "Mar. Cel. in the Colonies"—Atlantic, LXI, 361.
[882] The American witnesses for the claimant cited Jackson v. Gilchrist (15 Johnson, Rep., 89); Constantine v. Windle (6 Hill, Rep., 176); Humbert v. Trinity Church (24 Wendell, Rep., 625): Hoffman, Chancery Practice (2d ed., New York, 1843); Revised Statutes of N. Y. (ed. 1830), 729; and Fenton v. Reed (4 Johnson, Rep., 52), the leading case for "common-law" marriage.