[634] See Bennett, "Uniformity in Mar. and Div. Laws," Am. Law Register, N. S., XXXV, 223 ff., who points out that the statutes of Alabama, Pennsylvania, and Missouri, where the common-law marriage is valid, are far more prohibitory than those of Massachusetts, Maryland, or West Virginia, where it is void. The statute of Alabama says positively that "no marriage shall be solemnized without a license issued by the judge of probate of the county where the female resides;" but a marriage so solemnized is nevertheless valid.
[635] Cook, "The Mar. Cel. in the U. S.," Atlantic, LXI, 523.
[636] Milford v. Worcester (1810), 7 Mass., 48-58. See also, to the same effect, Commonwealth v. Munson (1879), 127 Mass., 459-71; 34 Am. R., 411. In this case it is correctly held that Justice Bigelow's decision in Parton v. Hervey (1854), 1 Gray, 119, that the statute is merely "directory," relates to banns and parental consent, and not to solemnization; for Milford v. Worcester is cited as authority.
[637] See the opinion of Judge Redfield in Northfield v. Plymouth (1848), 20 Vt., 582, holding that a common-law marriage could not be regarded as valid without "virtually repealing our statutes," thus reversing the doctrine of Newbury v. Brunswick (1829), 2 Vt. 151; 19 Am. D., 703; and consult especially Morrill v. Palmer (1895), 68 Vt., 1-23, holding "that what ... Kent calls the 'loose doctrine of the common law,' in relation to marriage, was never in force in this state."
[638] See the opinion of Chief Justice Gilchrist in Dumbarton v. Franklin (1848), 19 N. H., 257, rejecting as irrelevant Judge Woodbury's obiter dictum in Londonderry v. Chester (1820), 2 N. H., 268-81, usually cited to sustain the common-law marriage; but this objection to it is scarcely valid.
[639] S. v. Hodskins (1841), 19 Me., 155-60; 36 Am. D., 743. Cf. Ligonia v. Buxton, 2 Me., 95. According to Hiram v. Pierce, 45 Me., 367, the statute of Maine, like that of Massachusetts, is only directory regarding parental consent in case of minors.
[640] Gen. Stat. of Ct. (1902), 1086. According to Reeve, Law of Husband and Wife, 252 ff.; followed by Kent, Commentaries, II, secs. 87 ff., the common-law marriage was formerly good in Connecticut.
[641] The common-law marriage was sustained in Cheseldine v. Brewer (1739), 1 Har. and McH., 152; overruled and the opposite doctrine supported in Denison v. Denison (1871), 35 Md., 361. In Jackson v. Jackson (1894), 80 Md., 176-96, it is held that the "fact that the marriage was performed by a clergyman may be inferred from the evidence." Cf. Bishop, Mar., Div., and Sep., I, sec. 416, p. 179.
[642] S. v. Samuel (1836), 2 Dev. and Bat., 177-85; followed in S. v. Patterson (1842), 2 Iredell, N. C., 346-60; left undecided in S. v. Ta-cha-na-tah (1870), 64 N. C., 614. Cf. S. v. Robbins (1845), 6 Iredell, N. C., 23-27, where apparently a celebration, but not a license, is held essential to a valid marriage (25); and especially S. v. Wilson (1897), 121 N. C., 657, where it is declared that a marriage "pretendedly celebrated before a person not authorized would be a nullity."
[643] Beverlin v. Beverlin (1887), 29 W. Va., 732-40.