(p) 10 N. H. 883.

(q) Bead v. Passer, 1 Esp. 213; s. c. Peake, Cas. 231; Hervey v. Hervey, 2 W. Bl. 877; Leader v. Barry, 1 Esp. 863. In Morris v. Miller, 4 Burr. 2058, Lord Mansfield held, that proof of marriage from cohabitation, name, and reception of the woman by everybody as the man's wife, was certainly receivable in all cases except two; one a prosecution for bigamy, and the other an action for criminal conversation; and this last, he says, is a sort of criminal action. And in Northfield v. Vershire, 38 Vt 110, the exception to the general rule as to evidence is limited to the action for criminal conversation alone. See also, Niles v. Sprague, 13 la. 108, where the sufficiency and weight of evidence tending to show marriage, is much considered apd discussed; and Craufurd v. Blackburn, 17 Md. 49, which admits declarations of deceased members of the family as to marriage, birth, relationship, and death.

1 Copula is evidence of, but no part of, marriage. Peck v. Peck, 12 B. L 485; Port v. Port. 70 Ill. 484.

ground of the actual probability of a regular marriage, where such evidence exists. In New York this presumption has been pushed very far. (r)

Mr. Chancellor Kent, in the fifth and subsequent editions of his Commentaries, says: "If the contract be made per verba de proesenti, and remains without cohabitation, or if made per * verba de futuro, and be followed by consummation, it amounts to a valid marriage, in the absence of all civil regulations to the contrary." (s) In his first four editions he omitted the words which we have italicized. But these words seem to us extremely material. They make the statement accurate and certain. They leave, however, the real question undecided for all practical purposes; for in what civilized land is there an absence of all civil regulations to the contrary? In the case of Jewell's Lessee v. Jewell, which came before the Supreme Court of the United States, (t) on error from the Circuit Court for the District of South Carolina, this precise question came up. The court below cited the above passage from Kent, but from an early edition, and therefore without the very material clause we italicize, and instructed the jury that this was law. Exceptions were taken, and the case was carried to the Supreme Court of the United States, where Taney, C. J., in giving the opinion of the court, refers to this instruction and says: "Upon the point thus decided, this court is equally divided; and no opinion can therefore be given." (u) In consequence of this decision, Mr. Kent added in his next and subsequent editions the words we have italicized in the extract from his Commentaries; and also, from a cautiousness that was certainly carried to an extreme, stated in a note, that "the Supreme Court were equally divided in respect to the above paragraph or proposition in the text;" but the precise proposition in the text, that is, as it now stands, with the added clause, was never before the court; nor do we think that any court * would have been divided upon it; for where there are no civil regulations to the contrary, what is to prevent parties from marrying in any way they prefer? Their division was upon the question whether such a contract of marriage be valid without reference to the presence or absence of municipal regulations, and this question must therefore be considered as an open one. In Clayton v. Wardell, (v) it is declared to be the rule of the common law, that a "valid marriage may exist without any formal solemnization;" but the marriage in that case was denied for other reasons; and we know of no case in which a mere agreement to marry, with no formality and no compliance with any law or usage regulating marriage, is actually permitted to give both parties and their children all the rights, and lay them under all the obligations and liabilities, civil and criminal, of a legal marriage. (w) 1 It must, however, be admitted that some

(r) Fenton v. Reed, 4 Johns. 62. The only point in controversy in this case was, whether the defendant was the widow of one William Reed. It appeared that in the year 1786 she was the lawful wife of one John Quest. Some time in that year Guest left the State for foreign parts, and continued absent until some time in the year 1792, and it was reported and generally believed that he had died in foreign parts. During the year 1792 the defendant was married to Reed, and afterwards in the same year Guest returned to the State of New York, and continued to reside therein until June, 1800, when he died. He did not object to the connection between the defendant and Reed, and said that he had no claim upon her, and never interfered to disturb the harmony between them. After the death of Guest, the defendant continued to cohabit with Reed until his death in September, 1800, and sustained a good reputation in society; but no solemnization of marriage was proved to have taken place between the defendant and Reed subsequent to the death of Guest. Upon these facts the court held, that the marriage of the defendant with William Reed, during the lifetime of John Guest, was null and void; that she was then the lawful wife of Guest, and continued so until his death in 1800; but that the facts and circumstances of the case were sufficient to authorize a jury to infer that an actual marriage took place between the defendant and Reed subsequent to the death of Guest. See also Starr v. Peck. 1 Hill (N. Y.), 270. In this case, on a question as to the legitimacy of A, it appeared, that her parents had been intimate in the way of courtship for nearly a year before her birth - that they intended to be married - that the father, being a seafaring man, left on a voyage, and was accidentally detained longer than he expected - that A was born a few days before his return - that within a week or so afterwards they were publicly married by a clergyman - that they subsequently cohabited as husband and wife for many years, and until their separation by death, always treating A as their legitimate child. The court held, that these facts were sufficient to warrant a jury in finding that a marriage in fact existed previous to A's birth, notwithstanding the ceremony which took place afterwards. Bronson, J., dissented. See also Piers v. Piers, 2 H. L Cas. 881; Clayton v. Wardell, 4 Comst. 280.