There is no recognition of any ecclesiastical authority in forming the connection, and it is considered entirely in the light of a civil contract. This is the doctrine of the common law, and also of the canon law, which governed marriages in England prior to the marriage act of 26 Geo. II.; and the canon law is also the general law thoroughout Europe as to marriages, except where it has been altered by the local municipal law.(a) The only doubt entertained by the common law was, whether cohabitation was also necessary to give validity to the contract.

(a) Bunting v. Lepingwel, 4 Co. 29. S. C. Sir F. Moore, 169. Jesson v. Collins, 6 Mod. Rep. 155. 2 Salk. Rep. 437, S. C. Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep. 54, 64. Lautour v. Teesdale, 8 Taunt. Rep. 830. Fenton v. Reed, 4 Johns. Rep. 52. Londonderry v. Chester, 2 N. H. Rep. 268. Rose v. Clark, 8 Paige's Rep. 574. State v. Patterson, 2 Iredell's N. C. Rep. 346. Swinburne on Espousals, sec. 4, cited by Sir Wm. Scott, in Lindo v. Belisario, 1 Hagg. Consist. Rep. 232; and see, also, Swinburne on Wills, part 1, ch. 10, sec. 12, and Sir Wm. Scott's opinion in the above case; and in Dalrymple v. Dalrymple, supra, to the point in the text, that by the canon law, prior to or in the absence of any civil regulations to the contrary, a private marriage, without solemnity, duly attested, and by mutual engagement or betrothment, was good and valid in law without confirmation, and without the intervention of a priest; and by the late statute of 6 and 7 Wm. IV. c. 85, sec. 20, marriages may be solemnized in places registered for the purpose, in the presence of some registrar and two witnesses, according to any forms and ceremonies at the pleasure of the parties. So the English marriage-act of 1653 treated marriages as a civil contract, to be solemnized before a justice of the peace. It is very clear, that the marriage contract is valid and binding, if made by words de præsenti, though it be not followed by cohabitation. M'Adam v. Walker, 1 Dow's Rep. 148. Jackson v. Winne, 7 Wendell, 47. And it is equally clear, that a promise to marry, given and accepted, with subsequent cohabitation-subsequente copula—and without any circumstances to disconnect the mutual promise from the cohabitation, and where there was no previous illicit connection, and marriage was really intended by the partics, is a valid marriage, if made between infants of the respective ages of fourteen and twelve. Shelford on Marriage and Divorce, p. 29, 989, edit. London, 1841, and the authorities there cited. This is the rule in the Scotch law, though Lord Chancellor Brougham, in a case on appeal to the House of Lords, exceedingly regretted it. Honyman v. Campbell, 2 Dow & Clarke's Rep. 265. The Scotch law on the formation of marriage is as loose as the common law on the subject. Many decisions in Scotland are cited to the point in Burge's Comm. on Colonial and Foreign Laws, vol. i. pp. 172, 173, 174. See, also, Bell's Principles of the Law of Scotland, sec. 1506. Lord Stair's Institutions of the Law of Scotland, edit. by More, 1832, vol. i. pp. 25, 26, and note B. pp. 13, 14. Id. vol. ii. 444. Evidence of David Hume in Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep. App. pp. 64, 65.

case in which the bridegroom, who was a clergyman of the Established Church, had duly performed the ceremony and without the presence of witnesses. Beamish v. Beamish, 18 Law Rep. 523.

It is not necessary that a clergyman should be present to give validity to the marriage, though it is doubtless a very becoming practice, and suitable to the solemnity of the occasion. The consent of the parties may be declared before a magistrate, or simply before witnesses, or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation, and reputation as husband and wife, except in cases of civil actions for adultery, or in public prosecutions for bigamy or adultery, when actual proof of the marriage is required.' Illicit intercourse or concubinage will not raise any such legal presumption of marriage. (a) This facility in forming the

(a) 1 Salk. Rep. 119. 4 Burr. Rep. 2057. 1 Blacks. Rep. 632. Doug. Rep. 171. The King v. Stockland, Burr. Sett. Cases, 509. Wilkinson v. Payne, 4 Term Rep. 468. Cunningham v. Cunningham, 2 Dow's Rep. 482. M'Adam v. Walker, 1 Dow's Rep. 148. Fenton v. Reed, 4 Johns. Rep. 52. Jackson v. Claw, 18 Johns. Rep. 346. Ford, J., 6 Halsted's Rep. 18, 19. Hantz v. Sealy, 6 Binney, 405. Doe v. Fleming, 12 J. B. Moore's Rep. 500. Rose v. Clark, 8 Paige's Rep. 574. Lord Kenyon said, in Read v. Passer, 1 Esp. Rep. 213, that a marriage might be inferred from circumstances mentioned in the text, without a register, as well since as before the marriage act of 26 Geo. II. Leader v. Barry, 1 Esp. Rep. 353, S. P. It would seem to have been a question under the ecclesiastical law, prior to the English statute of 26 Geo. II., whether the contract of marriage, though followed by cohabitation, was not essentially imperfect, unless it was solemnized by the intervention of a priest. There are many cases and dicta, pro and con, in the English books, which relate to a validity of civil rights of marriage not so solemnized. They are collected in 2 Roper on Husband and Wife, Addenda by Jacob, 445-475, and in Shelford on Marriage and Divorce, 35-38. Thus it was said that a marriage not duly solemnized would not entitle the wife to dower, (Perkins, sec. 194, 306,) nor entitle the husband to administer on his wife's estate. Haydon v. Gould, in the court of delegates, 1 Salk. Rep. 119. The intervention of a person in holy orders seems to have been assumed in the cases as a material circumstance. The King v. The Inhabitants of Brampton, 10 East, 282. Lautour v. Teesdale, 8 Taunt. Rep. 830. The intervention of a priest was required by the church of Rome in a decree of the Council of Trent. Before Pope Innocent III., marriage was totally a civil contract. The intervention of a priest to solemnize the contract was merely juris positivi, and these private contracts of marriage, as Blackstone observes, (1 Comm. 439,) were "valid marriages to many purposes." In North Carolina, in the case of The State v. Samuel, 2 Dev. & Bat. 177, 181, it was held, that

1 Cohabitation, common reputation, &c., are received merely as evidence of marriage, and may be rebutted by other testimony. Clayton v. Wardell, 4 Comst. R. 230. Weatherford v. Weatherford, 20 Ala. 548. Parties who had lived together twenty years, and were husband and wife by common reputation, were recognized as such by the court, though no marriage ceremony had ever taken place. Hicks v. Cochran, 4 Edw. Ch. 107. Donnelly v. Donnelly, 8 B. Mon. 113.

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matrimonial contract by the common and ecclesiastical law, existed in those American states where the common law has not been altered on this point, or remains in force, as in New York, South Carolina, and Kentucky. The New York Revised Statutes had, indeed, introduced and prescribed regulations for the due solemnization and proof of marriage. Marriages were directed to be solemnized only by a minister of the gospel or priest, or by a mayor, recorder, or alderman of the cities, or judge of the county courts, or a justice of the peace. Marriage, when solemnized by a minister, was to be according to the forms of his church; and when by a magistrate, without any particular form, except that the parties must solemnly declare that they take each other as husband and wife, and there must be at least one witness present, besides the minister or magistrate. The minister or magistrate was required to ascer tain the names and residence of the parties, and their competency as to age, and the name and residence of the witness or witnesses, not exceeding two, if more than one be present, and to satisfy himself of the identity of the parties. It was made a misdemeanor, knowingly to marry persons, when either is under the age of legal consent, or under any legal impediment, or wants understanding. The minister or magistrate was to furnish, on request, to either party, a certificate of the marriage, and of the above facts rendering it lawful. The certificate was to be filed with the city or town clerk where the marriage was had, or where either of the parties resided, within six months, and a due entry thereof made. (a) These regulations were found to be so inconvenient that they had scarcely gone into operation when the legal efficacy of them was destroyed, and the loose doctrine of the common law restored by the statute of 20th

April, 1830, declaring that the solemnization of marriage *89 need not be in the manner above prescribed, and that all lawful marriages, contracted in the manner in use before

a contract of marriage in verbis de præsenti, though followed by cohabitation, was not a legal marriage in that state, unless celebrated by some person in a sacred office, or entered into before some one in a public station and judicial trust. Consequently the marriage of slaves, as usually existing, consisting of cohabitation merely by the permission of the owners, did not constitute the legal relation of husband and wife. (a) New York Revised Statutes, vol. ii. pp. 139, 140, sec. 8-19.

the Revised Statutes, should be as valid as if the article containing those regulations had not been passed.(a)

By the Scotch law, a previous publication of the intention of the parties is required, though a clandestine marriage, without such public notice, is still valid in law, and only subjects the parties to certain penalties. (b) It has been the usual practice with nations, to prescribe certain forms and ceremonies, and generally of a religious nature, as being requisite to accompany the celebration of the marriage solemnity. (c) In the Roman Catholic Church, marriage is elevated to the dignity of a sacrament, and clothed with religious solemnities. But in France, under the revolutionary constitution of 1791, marriage was declared to be regarded in law as a mere civil contract. The same principle was adopted in the code Napoleon; and now, says Toullier, (d) the law separates the civil contract entirely from the sacrament of marriage, and does not attend to the laws of the church, and the nuptial benediction, which bind only the conscience of the faithful. The statute of 26 George II. required all marriages in England, without special license to the contrary, to be solemnized with publication of bans in a parish church or public chapel. In most cases, the ob- *90 servance of the positive municipal regulations was made necessary to the validity of the marriage; but the painful consequences of such a doctrine recommended a less severe discipline, in respect to the parties themselves and their issue. The statute of 3 George IV. relaxed the rigor of the former stat

(a) This would appear to amount to a complete repeal of the above regulations, as a matter of binding obligation; and yet the same act of the 20th of April, 1830, means to retain those prescriptions, for it makes several amendments to the original regulations, and which are incorporated into the abstract of them given in the text. The regulations amount, therefore, only to legislative recommendation and advice. They are not laws, because they do not require obedience! The statutes of several of the states, as Massachusetts, Connecticut, &c., direct that the justice or minister, before whom marriages shall be solemnized, shall keep a record thereof, and return the same to the town clerk to be recorded. So the statute of New York, of April 28th, 1847, ch. 152, has again provided for the registry of births, marriages, and deaths within the state. (b) Ersk. Inst. 91, 93. M'Douall's Inst. vol. i. p. 112.

(c) Selden's Uxor Ebraica, b. 2, ch. 1, lib. 2, passim. 2 Potter's Greek Antiq. 279, 283. Dr. Taylor's Elem. 275, 278. Jewish Antiquities by Th. Lewis, vol. iii. pp. 293-304.

(d) Droit Civil Français, tom. i. No. 494.

ute in some particulars, but that statute was repealed by the 4 Geo. IV. c. 76, which restored much of the former severity, and now forms, with some subsequent variations, the matrimonial law of England. By that statute the bans of matrimony are to be published in the parish church or chapel upon three preceding Sundays, and the marriage is to be solemnized in the same place. The marriage of a minor against the consent of parents, is not absolutely void, (a) but a wilful marriage, made knowingly by both parties, without due publication of bans, or elsewhere than in a parish church or chapel, unless under special license, or celebrated by a person not in holy orders, renders it void. (b) This last statute underwent some modifications by the act of 6 and 7 Wm. IV. c. 85, relative to marriages not solemnized according to the rites of the Church of England, and for relief as to marriage of dissenters from the established church. (c)

In the states of Maine, New Hampshire, and Massachusetts, it is requisite, by statute, to a valid marriage, that it be made by publication of bans, and in the presence and with the assent of a magistrate, or a stated or ordained minister of the gospel; and if the parties be under the age of twenty-one years if a

(a) See ante, p. 85, n. a.

(b) Dormer v. Williams, 1 Curteis, 870. Rex v. Tibshelf, 1 B. & Ad. 195. Rex v. Wroxton, 4 B. & Ad. 640, stat. 4 Geo. IV. c. 76, sec. 22. Both parties must be cognizant of the fraud under this statute. Clowes v. Clowes, Arches Court of Canterbury, 1842.

(c) The provisions alluded to in the text are more specially stated as follows: By the marriage act of 4 Geo. IV. c. 76, a marriage is absolutely null and void if any person shall knowingly and wilfully intermarry, in any other place than a church, or such public chapel wherein bans may be lawfully published (unless by special license); or shall knowingly or wilfully intermarry without due publication of bans, or license from a person having authority to grant the same, first obtained; or shall knowingly and wilfully consent to, or acquiesce in, the solemnization of such marriage by any person not being in holy orders. But the subsequent statutes of 6 and 7 Wm. IV. c. 85 and c. 88, 7 Wm. IV. and 1 Vict. c. 22, and 3 and 4 Vict. c. 92, have so far modified these provisions as to allow marriages not only by special license, by the surrogate's license, and by bans, but also by the superintendent's registrars certificate, without license, or by his certificate with license. It is declared further, that the statutes do not extend to marriages by British subjects taking place out of England, and are valid if made in the form requisite by the law of the place where the solemnization is had, and the law is understood to be the same, though the parties eloped from England on purpose to evade the English law of marriage.