[604] See the case of Usher v. Troop (Throop), 1724-29, in which is raised the question as to whether the "constitutions and canons ecclesiastical of the Church of England" are binding in Massachusetts: MSS. Records of the Superior Court of Judicature, 1725-30, fol. 236. Cf. chap. xii, secs, i, ii.
[605] Cook, "The Mar. Cel. in the U.S.," Atlantic, LXI, 520-32, has given a systematic account of the subject to the year 1888. To this article, and to his "Reform in the Celebration of Marriage," ibid., 680-90, I am indebted; as also to Bennett, "Uniformity in Marriage and Divorce Laws," Am. Law Register, N. S., XXXV, 221-31. Cf. Convers, Mar. and Divorce, 15-119; Stewart, Mar. and Divorce, 78 ff.
[606] In the case of Fenton v. Reed (1809), 4 Johns., 52; 4 Am. D., 244; Ewell, Cases on Domestic Relations, 397-99. Following are the essential facts in this celebrated case. In 1785 John Guest "left the state for foreign parts." During his absence, in 1792, his wife Elizabeth married Reed. Subsequently in the same year her first husband, Guest, returned to the state and there resided until his death in June, 1800. He professed to have no marital claim upon Elizabeth; so she lived with Reed as a wife continuously from 1792 until the latter's death in 1806. Was she the lawful wife of Reed from 1792 to 1800 during the lifetime of Guest? If not, was she, without the observance of any formalities, his lawful wife from 1800 to 1806 after Guest's demise? To the first question the court answered "no," holding that "the statute concerning bigamy does not render the second marriage legal, notwithstanding the former husband or wife may have been absent above five years, and not heard of. It only declares that the party who marries again in consequence of such absence ... , shall be exempted from the operation of the statute, and leaves the question of the validity of the second marriage just where it found it." To the second question the court answered "yes," as explained in the text. Cf. Starr v. Peck, 1 Hill, N. Y., 270.
[607] The doctrine of his own decision was formulated in 1826 by Kent in the first edition of his Commentaries. Ten years earlier, in 1816, it had been accepted by Reeve, former chief justice of Connecticut, in his treatise on the Law of Husband and Wife. It was followed in 1842 by Greenleaf in his work on Evidence; and later by Bishop in his well-known book on Marriage and Divorce. On the other hand, the younger Parsons, the first edition of whose Contracts appeared in 1853, is inclined to reject the Kent doctrine: see the 8th ed., II, 78 ff.; and compare Cook, "The Mar. Cel. in the U. S.," Atlantic, XLI, 521, 522.
[608] See Fryer v. Fryer (1832), Richardson's Equity Cases, 92 ff. Cf. the case of Vaigneur v. Kirk (1808), 2 S. C. Equity Reports, 640-46; and 10 McCord's Statutes, 357, ed. note; ibid., II, 733, ed. note.
[609] Holmes v. Holmes (1833), 6 La., 463. In this state, under influence of French and Spanish law, the common-law contract appears always to have been regarded as valid.
[610] Askew v. Dupree (1860), 30 Ga., 173; cf. Clark v. Cassidy, 64 Ga., 662.
[611] Blackburn v. Crawfords (1865), 3 Wall., 175; Diggs v. Wormley (1893), 21 D. C., 477, 485; Jennings v. Webb (1896), 8 App. D. C., 43, 56. Cf. Green v. Norment (1886), 5 Mackey, 80-92.
[612] In Campbell v. Gullatt (1869), 43 Ala., 57. But see the earlier decisions in S. v. Murphy (1844), 6 Ala., 765-72; 41 Am. D., 79; and Robertson v. S. (1868), 42 Ala., 509; being conflicting and indecisive as to whether the statute is merely "directory."
[613] Jones v. Jones (1872), 28 Ark., 19-26. According to S. v. Willis (1848), 9 Ark., 196-98, consent of the parent is not essential.