Note 880 — Chapter XIV · OPTIONAL CIVIL OR ECCLESIASTICAL MARRIAGE IN THE MIDDLE COLONIES

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.