This section of the book is from "The Complete Herbalist" by Dr. O. Phelps Brown. Also available from Amazon: The Complete Herbalist: The People Their Own Physicians By The Use Of Nature's Remedies.
This is, in law, the conjugal union of man with woman, and is the only state in which cohabitation is considered proper and irreprehensible. The marriage relation exists in all Christian communities, and is considered the most solemn of contract, and, excepting in Protestant countries, it is regarded as a sacrament. In some countries its celebration falls under the cognizance of ecclesiastical courts only, but in the United States it is regarded as merely a civil contract, magistrates having, equally with clergymen, the right to solemnize it, though it is usually the practice to have it performed by a clergyman, and attended with religious ceremonies. Marriage, as a legalized custom, is of very ancient origin. It is doubtful whether even the primitive man was not governed in the intercourse of the sexes by some recognition of the union being confined to one chosen one. No greater promiscuity can certainly be supposed than occurs in the lower animals, where pairing is the law. The nobler animals, as the lion, elephant, etc., never have but one mate; and even in case of death do not re-mate. As man advanced, civil codes were inaugurated, and certain protection given to the choice of the parties. The earliest civil code regulating marriage of which we have any account was that of Menes, who, Herodotus tells us, was the first of the Pharaohs or native Egyptian kings, and who lived about 3,500 years before Christ. The nature of his code is not known.
The Biblical account extends further back, but it does not appear that any laws existed regulating marriage, but each one was allowed to choose his wife and concubines, and it is supposed that common consent respected the selection. Next Moses gave laws for the government of marriage among the Israelites. The early Greeks followed the code of Cecrops, and the Romans were also governed in their marital relations by stringent laws. In fact the necessity of some law regulating the intercourse between the sexes much have become very apparent to all nations or communities at a very early period. It certainly antedates any legal regulations with regard to the possession of property. It is very probable that every community did by common consent afford to each male one or more females, and the presumption is that such choice or assignment, as the case may have been, was respected by common agreement as inviolable. It is doubtful if ever promiscuity was the law or privilege with any community of men, even in their primitive state. The possession of reason is antagonistic to such a belief; and man was most probably elevated above the beast by the faculty of reason in this respect as in others. Promiscuous indulgence is always evidence of debauchery, and a departure from that natural course which is prompted by an innate sense of propriety characterizing mankind. The law is very indefinite with regard to what constitutes a legal marriage. It is an unsettled question, both in England and in this country, whether a marriage solemnized by customary formalities alone is legal, or if one characterized by the mere consent of the parties is illegal. The latter has been held as legal in some instances in both countries. Kent, in his Commentaries, lays down the law that contracts made so that either party recognizes it from the moment of contract, and even not followed by cohabitation, amounts to a valid marriage; and also that a contract to be recognized at some future period, and followed by consummation, is equally valid. It is unfortunate that the law is so undecided in this respect. The decisions arrived at, for or against, were not dependent upon any recognized law, but seem to be influenced by the character of the cases, either for favor or discountenance. As long as the law recognizes cohabitation legal only in marriage, it seems to me that if consummated under consent of the parties to bear marital relations with each other, or promise of marriage, the act should be unhesitatingly pronounced as the equivalent of a valid marriage in all instances. If cohabitation is only a marital prerogative the law should not stultify itself by recognizing it as possible to occur in any other relation. If either of the parties are married, the law defines it as adultery, and, very properly, defines the punishment. It is necessary to the progress of the age that some such principle should be recognized in common law, so as not to subject the decision of the question to the individual opinion of any judge. It would at once obviate the confusion of sentiment now held in regard to it, and besides arrest the decision in test cases from mere caprice of the tribunal. It is certainly as correct a principle as any in common law, and would, in its operations as a statute law, be free from injustice, and capable of doing much good.