LOYALTY. See ALLEGIANCE; BOUNTY LAND; DISLOYALTY. Illiteracy of. MAGISTRATES. Illiteracy of a magistrate does not impair the force of his certificate as to the character of witnesses. Z. Holland (Sec. C. B. Smith), 5 L. B. P., 119. MANDAMUS. Where a decision by the Commissioner of Pensions adverse to the applicant has been overruled on a question of law by the Secretary of the Interior, a refusal by the Commissioner to carry out the decision of his superior entitles the pensioner to a rule on the Commissioner to show cause why mandamus should not be issued to compel him. United States ex. rel. Dunlap v. Black, 128 U. S., 40. See also COMMISSIONER OF PENSIONS. Title to pension. MARINE CORPS. The joint resolution of Congress passed August 10, 1848, placed the officers, noncommissioned officers, privates, and musicians of the Marine Corps who served with the Army in the war with Mexico on an equal footing with the officers, noncommissioned officers, privates, and musicians of the Army with whom they served. The phrase "other remuneration," employed in said resolution, must be understood to refer to pensions. It was the intention of Congress to remove any distinction in respect to pensions between men in the same relative position who might be disabled by the loss of their limbs while fighting side by side in the same service. James Orr (Atty. Gen. Toucey), 5 Op., 59. See also BOUNTY LAND; LINE OF DUTY; SERVICE. MARTHA NICHOLS. See WAR VESSELS. MARRIAGE AND DIVORCE. 1. Age of consent. 2. Definition of. 3. Marriage determined by the lex loci. 4. When an impediment to marriage exists. 5. Evidence of, in war of 1812 claims. 6. Evidence of invalidity. It being contended that claimant at the time of her marriage was under the age of fourteen years, it is held that there is no proof as to her age; but as the cohabitation following such marriage continued until after she had attained the age of fourteen the fact that she was under the age of fourteen at the time of her marriage would not affect its validity. Emily J. Griswold (Actg. Sec. Gorham), 3 P. D. (o. s.), 492. In Michigan a marriage is void without divorce or other legal process if either of the parties was under the age of legal consent and if the parties separate during such marriage and do not cohabit together afterwards. Lorinda M. Kellogg (Asst. Sec. Reynolds), 7 P. D., 31. 2. Definition of. An accepted definition of marriage under the common law is the entering of a man and woman, by mutual consent, into permanent and absolute association and union to be the joint head of a family or of a household. Harriet Ford, colored (Asst. Sec. Bussey), 5 P. D., 239. 3. Marriage determined by the lex loci. Where the law of the State or place where the parties reside expressly states the requirements of a legal marriage and the conditions which shall attend the relation of husband and wife, the rights of marriage and the fact of lawful widowhood for pensionable purposes depend upon a faithful compliance with said law, regardless of the rule that would be otherwise applicable under the common law. Eliza W. Carter (Asst. Sec. Bussey), 5 P. D., 148. Unless there be between parties a mutual consent to marry, either by present agreement or by promise, followed by cohabitation, the fact that they lived and cohabited together, even in a State where the law recognized the validity of actual contract between them without any formal religious or other ceremony, would not constitute a marriage between them. Such cohabitation would not create a pensionable status for the alleged widow. Harriet Ford, colored (Asst. Sec. Bussey), 5 P. D., 239. In determining an application the laws of the State or country where the alleged marriage took place should be resorted to as the rule of decision upon its validity, and the legitimacy of the child should be subject to the same rule. The common law has never been adopted by the United States, and these questions, therefore, are governed solely by the laws of the particular State where the parties are domiciled, subject only to the limitations contained in the Federal Constitution. Mehitable J. Pinkham (Actg. Sec. Otto), 6 L. B. P., 280. Where the widow of a colored soldier applies under section 3 of the act of June 27, 1890, section 4705, Revised Statutes, has no application, and the widow must prove her marriage by the lex loci. Lettie Hawkins, colored (Asst. Sec. Reynolds), 8 P. D., 22. 4. When an impediment to marriage exists. As this soldier had a wife living at the time he assumed to marry this claimant, and such former wife is still living and no claim is made that she has ever been divorced from said marriage, neither this claimant nor her children by the soldier are pensionable. Sarah J. Cowell (Sec. Chandler), 3 P. D. (0. s.), 147. 4. When an impediment to marriage exists-Continued. Where the validity of a second marriage is questioned upon the presumption that the first wife is living, but there exists a reasonable and unrebutted probability of the death of said first wife, the Department applies the rule that "if by the law of the place where parties dwell a mere present mutual consent constitutes marriage, then, if they are living in a connection which both desire should be matrimonial, but an impediment renders the marriage void, valid marriage will instantly arise on the removal of the impediment while the mutual wish for marriage continues. It is immaterial to this result whether the impediment was known to the parties or not; nor is this a mere rule of evidence; the law makes them husband and wife." (1 Bishop on Marriage and Divorce, sec. 505.) Amy P. Sheets (Asst. Sec. Bussey), 3 P. D., 293. Overruled: 7 P. D., 468. The holding is adhered to that "if by the law of the place where the parties dwell present mutual consent constitutes valid marriage, then, if they are living together in a connection which both desire to be matrimonial, but an impediment renders the marriage void, valid marriage will instantly arise on the removal of the impediment while the mutual wish for marriage continues. It is immaterial to this result whether the impediment was known to the parties or not; nor is this a mere rule of evidence; the law makes them husband and wife." Nancy J. Dorlas (Asst. Sec. Bussey), 5 P. D., 230. Overruled: 7 P. D., 468. A claimant for widow's pension, by reason of having been the second wife of a soldier who claimed to have been divorced from his first wife, must show that her marriage to the soldier was a lawful one by proving that the soldier was in fact divorced from the first wife or that the second marriage, if not originally legal in form, became lawful by reason of continuous cohabitation subsequent to the removal, by either death or divorce, of any impediment that may have been due to the first marriage. Mercy Lewis (Asst. Sec. Bussey), 5 P. D., 293. Where at the time of the marriage an impediment exists to the marriage of either party such marriage is illicit, and no presumption in favor of marriage subsequent to the removal of such impediment can arise from the parties' long-continued cohabitation and recognition of each other as husband and wife, unless the proof shows a change in the character of their relations subsequent to such removal of impediment. Elizabeth Schmidlin (Asst. Sec. Bussey), 6 P. D., 200. As it appears that the soldier was married previous to his 4. When an impediment to marriage exists-Continued. marriage to the claimant, proof of a prima facie valid marriage Mary A. The question as to whether an impediment existed to a valid marriage, arising in a pension claim of a widow, is a question of fact, and the Pension Bureau in determining the same is not bound by the decision of any other tribunal. Catherine Maher, widow of John Tyge (Asst. Sec. Reynolds), 8 P. D., —. 5. Evidence of, in war of 1812 claims. Proof of marriage prior to the treaty of peace of February 17, 1815, is essential in claims under act of February 14, 1871. Mary C. Hopkins (Sec. Schurz), 6 P. D. (o. s.), 23. 6. Evidence of invalidity of. Other than record evidence is admissible in proof of invalidity of marriage. Susan H. Summers (Asst. Sec. Bussey), 4 P. D., 376. 7. Verdict of jury, when not admissible to prove. The verdict of a jury acquitting an attorney or agent charged with presenting and prosecuting a fictitious, false, and fraudulent claim for pension to be paid appellant in a case wherein the validity of her marriage was in question is not admissible to show that she was lawfully married to the soldier on account of whose death she claims pension. Mary F. Barker (Asst. Sec. Reynolds), 8 P..D., 48. 8. Burden of proof. Claimant's marriage to soldier in 1877 is shown by record evidence, and she lived with him as a wife from the time the ceremony was performed until his death, in 1884, and bore him four children, who survived soldier. Applicant was never married prior to her marriage with soldier, and no evidence appears in the case tending to show that soldier was ever previously married, but all the witnesses who have testified in the claim state that they never heard it intimated that he had been previously married, but prior to this marriage he represented himself to be a single man, and they believed this, and have no reason to believe otherwise: Held, That a legal marriage between claimant and soldier is proved. Mary C. Buckley (Asst. Sec. Reynolds), 8 P. D., 195. Claimant being unable to prove whether soldier had been previously married, and there being no evidence that such was a fact, but all the evidence rather showing that there was no |