(s) 2 Kent, Com. 87.

(t) 1 How. 210, 284. In this case and in Londonderry v. Chester, 2 N. H. 288, all the leading authorities upon this difficult question are cited.

(u) In the case of Regina v. Millis, 10 CI. & F. 634, on appeal from Ireland to the House of Lords, the Lords were equally divided on the same question; Lord Brougham, Lord Denman, and Lord Campbell, being in favor of the validity of the marriage at common law, and Lord Lyndhurst, Lord Cottenham, and Lord Abinger, against it. The question had been referred by the lords to the judges, and Tindal, C. J., in behalf of the judges, gave their unanimous opinion against the validity of the marriage, and held, that by the law of England, as it existed at the time of the marriage act, a contract of marriage per verba de praesenti was indissoluble between the parties themselves, and afforded to either of them, by application to the spiritual court, the power of compelling the solemnization of an actual marriage; but that such contract never constituted a full and complete marriage in itself, unless made in the presence and with the intervention of a minister in holy orders. The civil contract and the religious ceremony were both necessary to a perfect marriage by the common law.

(v) 4 Comst. 290; and see White v. Lowe, 1 Redfield, 376; Davis v. Brown, 1 Redfield, 259.

(w) It would be impossible to discuss

1 As to informal marriages, see Port v. Port. 70 111. 484; Hutchins v. Kimmell, 31 Mich. 126; Dyer v. Brannock, 66 Mo. 391; Dickerson v. Brown, 49 Miss. 357; Lewis recent decisions seem to tend strongly in that direction. Such is a late case in Pennsylvania. (ww) It would seem that in California and Oregon, the marriage is not legal unless the contract be declared before a person authorized to solemnize marriages, and in the presence of two witnesses. (wx) But in New York it has been held that an agreement to enter into the marriage relation constitutes marriage, if made in words of the present tense, with no especial form or ceremony, and without witnesses. It is a civil contract, and maybe proved as any other contract may. (wy) A view substantially similar seems to be taken in Alabama. (wz)

It may be remarked, that the practice of the courts in this country, in one respect, seems directly opposed to the rule that "if the contract be made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, and is equally binding as if made in facie ecclesiae." (x) For a very large proportion of the cases in which an action is brought for breach of promise of marriage come within this definition. The man promised marriage, the woman accepted and returned the promise, and thereupon yielded to his wishes. It is a question, which we have already considered, how far the seduction may be given in evidence, in this action, to swell the damages; but in some way or other, if the fact this subject fully, either in the text or in the notes, without occupying too large a space. I would refer, therefore, to a very elaborate, and, as 1 think, accurate investigation of the authorities and the law, in Jacop's Addenda to Roper on Husband and Wife, Vol. IL pp. 446-475. I cannot but think that he places upon strong grounds his conclusion that a contract of marriage per verba de praesenti, without ceremony or celebration of any kind, does not constitute a valid marriage at common law.

(ww) In this case it is held, that the contract of marriage must be evidenced by words in the present tense, uttered for the purpose of effecting a marriage; but no particular form of solemnization before officers of Church or State is required. Commonwealth v. Stamp, 53 Penn. St 132. But in the absence of all proof of a marriage ceremony, cohabitation as man and wife was not allowed to establish a marriage, in Goldbeck v. Gold-beck, 3 Green, 42.

(wx) Holmes v. Holmes, 1 Abb. IT. S. 585.

(wy) Bissell v. Bissell, 55 Barb. 326; 7 Abb. (N. Y.) Pr. (N. S.) 16. See also on this subject, Guardians of the Poor v. Nathans, 2 Brews. 149; Physick's estate, id. 179.

(wz) Campbell v. Gullatt, 43 Ala. 57.

(x) In Regina v. Millis, 10 CI. & F. 534, it seemed to be the universal opinion that marriage, per verba de futuro cum copula, and marriage per verba de praesenti, have absolutely the same validity, force, and effect, whatever that may be. Pratt, J., in Clayton v. Wardell, denies this. In Starr v. Peck. 1 Hill (N. Y.), 294, there is a dictum to the effect that a mere agreement to marry, cum copula, is a valid marriage; but this is overthrown in Cheney v. Arnold, 15 N. Y. 345.

v. Ames, 44 Tex. 319. Such are repudiated in Maryland, Denison v. Denison, 35 Md. 361; and elsewhere by statute, Commonwealth v. Munson, 127 Mass. 459; State v. Miller, 23 Minn. 352. An illicit connection can be changed into a formal or informal marriage only by an express agreement and a ceremony, or some open change in the habits and relations of the parties. Barnum v. Barnum, 42 Md. 251; Williams v. Williams, 46 Wis. 464; Hunt's Appeal, 86 Penn. St. 294; Floyd v. Calvert, 53 Miss. 37.

exists, it is usually brought out. Then it becomes a case of marriage, if it be indeed law, that an * agreement to marry, per verba de futuro, followed by consummation, constitutes marriage. But such a defence was never made by the party, nor interposed by the court. It is true that the man would not be likely to make this defence, for that would be to acknowledge himself the husband of the plaintiff. But if, in such an action, it should appear that the parties had celebrated a regular marriage, in facie ecclesiae, and were unquestionably husband and wife, certainly the court would not wait for the defendant to avail himself of that fact, but as soon as it was clearly before them would stop the case. For if they were once married, no agreement of both parties, and no waiver of both or either, would annul the marriage. And the circumstance that this objection is never made, where it appears that there was a mutual promise and subsequent cohabitation, would go far to show that the courts of this country do not regard such a contract, although followed by consummation, as equivalent to a marriage in which the formalities sanctioned by law or usage are observed. It might be added, that such a provision as that contained in the Revised Statutes of Massachusetts (y) (which has been elsewhere enacted), would seem to be wholly unnecessary, if words of present contract, with consummation, were all that is needed to render marriage valid.