the common law was, whether cohabitation was also necessary to give validity to the contract. 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, exeept 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. This facility in forming the

zed 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 P. Rep. 148. Jackson v. Winns, 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 connexion, and marriage was really intended by the parties, 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 & Clark's P. C. 265. The Scots 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. 172, 173, 174. See also Bell's Principles of the Law of Scotland, sect. 1506. Lord Stair's Institutions of the Law of Scotland, edit. by More, 1832, vol. 1. p. 25. 26, and note B. p. 13. 14. Id. vol. 2. 444. Evidence of David Hume in Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep. App. p. 64, 65.

a 1 Salk Rep. 119. 4 Burr. Rep. 2057. 1 Black's 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 B. Moore's Rep. 500. Rose v. Clark, 8 Paige's Rep. 574. Lord Kenyon

*matrimonial contract by the common and ecclesiastical law, exists 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 a judge of the county courts, or a justice of the peace. Marriage, when solemnized by a minister, was to be according to

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 a 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. La Tour 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 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.

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 ascertain 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. 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 re

stored by the statute of 20th April, 1830, declar*89 ing, that the solemnization, of marriage need not be in the manner above prescribed, and that all lawful marriages contracted in the manner in use before the Revised Statutes, should be as valid as if the article containing those regulations had not been passed.b

New-York Revised Statutes, vol ii. p. 139, 140, sec. 8--19.

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

C

By the Scots 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. 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. 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, 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 Geo. 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 observance 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 Geo. IV. relaxed the rigour of the former statute in some particulars, but that statute was repealed by the 4 Geo. IV. c. 76,

*90

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.

a 1 Ersk. Inst. 91, 93. M'Douall's Inst. vol. i. p. 112.

b Selden's Uzor 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. p. 293–304.

c Droit Civil Francais, tom. i. No. 494.

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 Will. 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

a See ante, p. 85, n. b.

b Dormer v. Williams, 1 Curties, 870. Rex v. Tibshelf, 1 B. & Ad. 195. Rex v. Wraxton, 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.

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 persons 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 inodified 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 registrar's 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.