Mississippi, Missouri, New York, Ohio, Pennsylvania, and Tennessee and by the courts of the United States: Cases cited by respective States below.

No celebration is necessary by the law of nature: Richard v. Brehm, 73 Pa. St. 140. Or by the civil law: Hallett v. Collins, 10 How. 174. Or by the law of Scotland: Dalrymple v. Dalrymple, 2 Hagg. Const. 54; McAdam v. Walker, 1 Dow. 148. Or by the Canon Law previous to the Council of Trent: Patton v. Philadelphia, 1 La, Ann. 98.

4. Marriage per verba de presenti disapproved. On the other hand, the courts of Maryland, Massachusetts, and North Carolina have declared marriage per verba de presenti, as well as per verba de futuro cum copula to be imperfect at common law until celebrated in facie ecclesia-not conferring rights of property upon the parties or legitimacy upon their children, but only the right to compel a specific performance of the marriage contract in a spiritual court. See cases cited below.

This is the view finally sustained by the English courts. In Queen v. Millis, 10 Clark & Fr. 534, the discussion fills 374 pages, and the court was equally divided in opinion. This case has been ably criticised by Mr. Bishop (2 Bish. M. & D., 275) and in Canada (Breakey v. Breakey, 2 U. C. [Q. B] 349). It has been followed, however, by the later English cases: Beamish v. Beamish, 9 H. L. Cas. 274; Catherwood v. Caslon, 13 M. & W. 261. See Wigmore's Case, 2 Salk. 438; King v. Brampton, 10 East. 282; Dalrymple v. Dalrymple, 2 Hagg. C. R. 79.

5. Marriage per verba de futuro cum copula.-In Duncan v. Duncan, 10 0. St. 181, the court said: "The idea that a contract for a future marriage VOL. XXXVI.-14

followed by cohabitation as husband and wife, is itself a valid marriage at common law, seems to have obtained currency on the credit of remarks made by several elementary writers of distinguished learning and ability and by certain judges of high character, speaking by way of obiter dicta in cases in which this question was really in no way involved. But the better opinion now seems to be that these remarks are unsupported by any case actually adjudicated and entitled to be considered as authoritative, and that such a contract never was a good marriage at common law, either in this country or in England, and the mistaken doctrine seems to have originated either in the inadvertent confounding of what might, in the absence of rebutting evidence, be good presumptive evidence of marriage with marriage itself; or from the fact that such a contract per verba de futuro. followed by cohabitation, was one of which the Canon Law, as administered by Ecclesiastical Courts in England until restrained by statute, would enforce specific performance."

In Cheney v. Arnold, 15 N. Y. 345, the court said: "The principle that a promise followed by intercourse was in some sense a marriage was a branch of the ecclesiastical system, resulting from the acknowledged jurisdiction of the ecclesiastical courts to compel the performance of such marriages by spiritual censure. Having dispensed with that jurisdiction, we cannot consistently acknowledge any marriage to be valid which requires the intervention of a spiritual court to make it perfect. We must insist upon those circumstances which the law requires in an executed contract upon any other subject. Mutual promises to marry in future are executory, and whatever indiscretions the parties may commit after making such promises,

they do not become husband and wife until they have actually given themselves to each other in that relation."

However, the authority of numerous elementary writers and jurists is found in support of the doctrine that a good common law marriage may be contracted per verba de futuro cum copula: 2 Kent Com. 87; 2 Greenl. Ev. 460; 1 Bouv. Inst. 110; Starr v. Peck, 1 Hill (N. Y.) 270; Dumaresly v. Fishly, A. K. Marsh. 369; Teter v. Teter, 88 Ind. 494; Askew v. Dupree, 38 Ga. 173; Est. McCausland, 52 Cal. 568; Cartwright v. McGown S. Ct. Ill., June 17, 1887. See also Patton v. Philadelphia, 1 La. Ann. 98.

The question does not seem to be one of great difficulty when we consider that "the copula is presumed [only] to have been allowed on the faith of the marriage promise, and that so the parties at the time of the copula accepted of each other as man and wife;" which presumption may be rebutted. "If the woman in surrendering her person is conscious that she is committing an act of fornication instead of consummating her marriage, the copula cannot be connected with any previous promise that has been inade and marriage is not thereby constituted:" Post v. Post, 70 Ill. 484; Hebblethwaite v. Hepworth, 98 Id. 126; Cartwright v. McGown, Supra.

The copula must be in fulfillment of the agreement to marry or in consummation of such a contract. The fact that sexual intercourse occurs after an agreement to marry at some future day is not of itself sufficient to establish the marriage relation. To be availing, the parties at the time of copula must THEN accept each other as husband and wife: Stoltz v. Doering, 112 Ill. 234; Peck v. Peck, 12 R. I. 485; North v. Valk, Dud. Eq.

(S. C.) 212; Fryer v. Fryer, Rich. Eq. Cas. (S. C.) 85.

Thus understood, marriage per verba de futuro cum copula becomes really marriage by present consent, and the term one of convenience simply.

6. Effect of Statutes on the subject -Celebration not necessary. It is a well-established rule in this country that a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity. It is said by Lord STOWELL in his celebrated judgment in the case of Dalrymple v. Dalrymple, 2 Hagg. C. R. 54, that "marriage in its origin is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent, not the child, of civil society. In civil society it becomes a civil contract regulated and prescribed by law and endowed with civil consequences. ** If it should be said that positive legislation is a substitute for the rule, then this positive legislation, like the rule, should in its terms be restrictive of the natural right and not merely directory as to the mode of its exercise. If it be not restrictive in its terms, then the rule of construction founded on the serious and evil consequences that must generally result from declaring invalid the exercise of the right will apply:" Carmichael v. State, 12 O. St. 553; Duncan v. Duncan, 10 Id. 181.

*

This rule has been adopted and no celebration is required to render a marriage valid in:

Ohio.-Supra.

Alabama.-Dickerson v. Brown, 49 Ala. 357; Campbell v. Gullatt, 43 Id. 57; State v. Murphy, 6 Id. 765.

California.- Est. McCausland, 52 Cal. 568; Graham v. Bennett, 2 Id. 503; Est. Titcomb, Myr. Prob. (Cal.)

55.

Georgia.-Askew v. Dupree, 30 Ga.

173.

Illinois-Cartwright v. McGown, S. C. Ill., June 17, 1887; Hebblethwaite v. Hepworth, 98 Ill. 126; Post v. Post, 70 Id. 434.

Iowa.-McFarland v. McFarland, 51 Ia. 565; Blanchard v. Lambert, 43 Id.

228.

Louisiana-Blasini v. Suc. Blasini, 30 La. Ann. 1388; Suc. of Hubec, 20 Id. 97; Holmes v. Holmes, 6 Id. 463; Putton v. Philadelphia, 1 Id. 68.

Michigan.-Hutchins v. Kimmel, 31 Mich. 127; Clancy v. Clancy, S. C. Mich., June 9, 1887; Meister v. Moore, 96 U. S. 76; Peet v. Peet, 52 Mich. 464.

Minnesota.-State v. Worthington, 23 Minn. 528.

Mississippi.-Hargroves v. Thompson, 31 Miss. 211; Rundle v. Pegram, 49 Id. 751; Floyd v. Calvert, 53 Id. 37. Missouri.-Dyer v. Brannock, 66 Mo. 391; Boyer v. Dively, 58 Id. 510.

New Hampshire. - Londonderry v. Chester, 2. N. II. 268. But see Dunbarton v. Franklin, 19 Id. 257.

New York.-Hynes v. McDermott, 91 N. Y. 451; Hayes v. People, 25 Id. 300; Canjolle v. Ferrie, 23 Id. 90; Cheney v. Arnold, 15 Id. 345; Clayton v. Wardell, 4 Id. 230; Van Tuyl v. Van Tuyl, 57 Barb. 235; Bissell v. Bissell, 55 Id. 325; In re Taylor, 9 Pai. 611; Rose v. Clark, 8 Id. 574; Fenton v. Reed, 4 Johns. 52; Davis v. Davis, 1 Abb. N. C. 140; Starr v. Peek, 1 Hill 270; O'Gara v. Eisenlohr, 33 N. Y. 296.

Pennsylvania. Commonwealth v. Stump, 53 Pa. St. 132; Est. Brice, 11 Phila. (Pa.) 98; Hantz v. Sealey, 6 Binn. (Pa.) 405.

South Carolina.-Davenport v. Cald

well, 10 S. C. 317; State v. Whaley, 10 Id. 500; Fryer v. Fryer, Rich. Eq. Cas. (S. C.) 85; North v. Vulk, Dud. Eq. (S. C.) 212.

Wisconsin.-Williams v. Williams, 46 Wis. 464; s. c. 32 Am. Rep. 722. This rule also obtains in the Federal courts: Meister v. Moore, 96 U. S. 76; Holabird v. Mut. Lf. Ins. Co., 2 Dill. (C. C.) 167; s. c., 12 Am. L. Reg. (N. S.) 566; Mathewson v. Phanix Iron Foundry, 20 Fed. Rep. 281; Jewell v. Jewell, 1 How. 218; Patterson v. Gaines, 6 Id. 550. But see Holmes v. Holmes, 1 Abb. C. C. 525.

7. Celebration Necessary.-In other States, the statutory requirements must be followed or the marriage is void. In Denison v. Denison, 35 Md. 360, the court said: "It is true the act contains no express prohibition or declaration of absolute nullity of marriage contracted per verba de presenti, but it is plainly to be perceived that such marriages if allowed would contravene the spirit and policy of the act. The implications from the provisions of the act are exceedingly strong against such marriages, and the practice and custom of the people of the State have been so universally in conformity with what would appear to have been the policy and requirement of the law, that such custom has acquired the force and sanction of law; even though a question could be made as to the technical construction of the act itself. Besides, as we have seen, an unsolemnized contract of marriage at the common law is inchoate merely or incomplete, being ineffectual to confer many of the most important rights of the matrimonial state, and to supply the defect of solemnization positive law was required. Such positive law has been provided, and consequently a marriage contracted in this State merely per verba de presenti or per vorba de

futuro cum copula has no sanction in our law, whatever may be the law upon this subject elsewhere." See also Classen v. Classen, 57 Md. 510. But see Cheseldine v. Brewer, 1 H. & McH. 152.

Substantially the same rule prevails and a celebration is necessary in:

Kentucky. By statute, Estill v. Rogers, 1 Bush. 62; but not otherwise, Dumaresly v. Fishby, 3 A. K. Marsh. 368; Donnelly v. Donnelly, 8 B. Mon. 113.

Massachusetts. Commonwealth v. Munson, 127 Mass. 459; Thompson v. Thompson, 114 Id. 566; Milford v. Worcester, 7 Id. 48. But see Parton v. Hervey, 7 Gray 119.

North Carolina.-Cooke v. Cooke, Phil. L. (N. C.) 583; State v. Samuel, 2 Dev. & B. (N. C.) 177. But see State v. Ta-cha-na-tah, 64 N. C. 614.

Tennessee.-Bashaw V. State, 1 Yerg. 177; Grisham v. State, 2 Id. 58$. But see Andrews v. Page, 3 Heisk. 653, 657.

8. Open Question. The question has not been adjudicated or the law is still unsettled in Arizona, Arkansas, Colorado, Dakota, Florida, Idaho, Montana, Nebraska, Nevada, New Mexico, Utah, Virginia, and Wyoming.

Connecticut.-Kibbe v. Antram, 4 Conn. 134; Goshen v. Stonington, Id. 209;

Delaware. (Celebration probably necessary.) Pettyjohn v. Pettyjohn, 1 Houst. (Del.) 332;

Indiana.-Teter v. Teter, 88 Ind

494;

Kansas.-State v. Walker, 26 Am. L. Reg. 455;

Maine. (Celebration probably necessary.) State v. Hodgskins, 19 Me. 155; Cram v. Burnham, 5 Id. 213; Brunswick v. Litchfield, 2 Id. 28;

New Jersey. (Celebration probably not necessary.) Goldbeck v. Goldbeck, 18 N. J. Eq. 42; Pearson v. Howey, 11 N. J. L.12;

Oregon.-Celebration said to be necessary in Holmes v. Holmes, 1 Abb. C. C. 525, but this case has been over. ruled as to California, and is of doubtful authority;

Rhode Island.-(Probably no celebration necessary.) Peck v. Peck, 12 R. I. 485; Matthewson v. Phæniz Iron Foundry, 20 Fed. Rep. 281.

Texas.—(Celebration necessary by Mexican law and probably by present law.) Rice v. Rice, 31 Tex. 174; Sapp v. Newsom, 27 Id. 537; Lewis v. Ames, 44 Id. 319;

Vermont.-Newbury v. Brunswick, 2 Vt. 151; State v. Rood, 12 Id. 396; Northfield v. Plymouth, 20 Id. 582.

The fact that the party solemnizing a marriage is not properly authorized will not prevent its being a good common-law marriage: Carmichael v. State, 12 O. St. 553; People v. Girdler, S. C. Mich., Feb. 10, 1887; Patterson v. Gaines, 6 How. 550.

Lincoln, Neb.

CHAS. A. ROBBINS.