The relation of marriage is founded upon the will of God and the nature of man; and it is the foundation of all moral improvement, and all true happiness. No legal topic surpasses this in importance; and some of the questions which it suggests are of great difficulty.

The first which presents itself is, What constitutes a legal marriage? It is impossible that any question should be more important to any one in itself, or in the consequences which it involves, than whether he or she is or is not a husband, or a wife; and yet some uncertainty may often rest upon it, not merely from the peculiar facts of individual cases, but from a * want of precision and certainty in the principles or rules which decide this question.

The Roman civil law declared, that "sufficit nudus consensus ad constituenda sponsalia." (k) Chancellor Kent quotes another passage from the Digest, "Nuptias, non concubitus, sed consensus facit" and adds: "This is the language equally of the common and canon law, and of common reason." (l) If this means that the consent of the parties is the essence of marriage, and that the ceremonies of celebration are but its form, it is undoubtedly true. But it is said consent suffices for marriage, makes marriage; and if this be literally taken, we suppose it open to doubt whether this be law in any of the countries of Christendom, at this moment. Even the Roman civil law says, "justas autem nuptias inter se cives Romani contrahant, qui secundum precepta legum coeunt." (m) In Scotland it is, or was, the law, that consent, manifested by declaration before witnesses, and followed by consummation, constituted a legal marriage. (n) Hence the practice of resorting, by those in England who wished to escape the marriage laws of that country, to Gretna Green, which was the village in Scotland most accessible from England. But even this was "consensus et concubitus;" not "consensus non concubitus" In England the common law provided no special form or mode, but the whole matter was under the ecclesiastical or canon law; but the statutes of England are, and for some time have been, precise and stringent, if not, as some there have thought, severe. In all Christian countries of which we have any knowledge, and as we suppose in all civilized countries, certain ceremonies are prescribed for the celebration of marriage, either by express law, or by a usage which has the force of law. And the question is, whether a mere consent of the parties, even with mutual promises, but without any use of or reference to any of these ceremonies, is sufficient to constitute a valid marriage. In the * case of Milford v. Worcester, (o) the Supreme Court of Massachu(j) Stribblehill v. Brett, 2 Vern. 445. In this case a lease was set aside, "upon surmise that the consideration of the lease was Col. Brett's (the lessee's), undertaking to procure a marriage to be had between Mr. Thynn (the lessor) and the Lady Ogle," although the lease was not made until six months after the marriage; as appears from the case as reported in 1 Bro. P. C. 57. See also, Hall v. Potter, 8 Lev. 411; s. c. Show. P. C. 76. This too arose from Mr. Thynn's desire to marry Lady Ogle. He gave an obligation to Mrs. Potter for £1,000, conditioned to pay £500 within three months after he should marry Lady Ogle. A bill was brought by Thynn's executors for relief against the bond. Their ground was, that Mrs. Potter only advised Thynn to apply to Brett, so that she did nothing to earn the money, and next that such contracts were of dangerous consequence. The defence was, that the "marriage was suitable in respect of their estates," and "that Thynn's estate was £10,000 a-year, and he a gentleman of a great family, though not of the nobility." But the bond was declared void by the Lords reversing the decree in Chancery. See also Smith v. Bruning, 2 Vern. 382.

(k) Dig. lib. 28, tit. 1, § 4.

(l) 2 Kent. Com. 87.

(m) Inst. lib. 1, tit 10.

(n) It is not quite certain that cohabitation was necessary by the Scotch law to constitute a legal marriage, if the contract were per verba de praesenti. For a very full and learned discussion of the law of Scotland concerning marriage, see Darlymple v. Dalrymple, 2 Hagg. Cons. 54 and the appendix to that volume.

(o) 7 Mass. 48. In this case, Parsons, C. J., said: "Marriage being essential to the peace and harmony, and to the virtues and improvements of civil society, it has been, in all well-regulated governments, among the first attentions of the civil magistrate to regulate marriages, by defining the characters and relations of parties who may marry, so as to prevent a conflict of duties, and to preserve the purity of families; by describing the solemnities by which the contract shall be executed, so as to guard against fraud, surprise, and seduction; by annexing civil rights to the parties and their issue, to encourage marriage, and to discountenance wanton and lascivious cohabitation, which, if not checked, is followed by prostration of morals, and a dissolution of manners; and by declaring the causes and the judicature for rescinding the contract, when the conduct of either party and the interest of the State authorize a dissolution. A marriage contracted by parties authorized by law to contract, and solemnized in the manner prescribed by law, is a lawful marriage; and to no other marriage are incident the rights and privileges secured to husband and wife, and to the issue of the marriage. . . . Where the laws of any State have prescribed no regulations for the celebration of marriages, a mutual engagement to intermarry, by parties competent to make such a contract, setts give a somewhat elaborate statement of the reasons which led them to the conclusion that a marriage is not valid if it do not conform to the statutory requirements. In New Hampshire, in the case of Clark v. Clark, (p) the court say: "But in most governments the contract is held to be valid and binding, notwithstanding it is entered into with no rites or ceremonies." But they had said before "it is a contract and relation - to be regulated - not by the mere will of the parties, but by the general provisions of the municipal law." But how can a contract be said to be regulated, not by the mere will of the parties, but by the provisions of law, if the mere will of the parties controls these provisions, and they have no * force or effect whatever, if only the parties choose to disregard them? That evidence of marriage, from cohabitation, acknowledgment by the parties, reception by the family, connection as man and wife, and general reputation, is receivable in nearly all civil cases, has been distinctly held. (q)1 This, however, proceeds upon the would in a moral view be a good marriage, and would impugn no law of the State. But when civil government has established regulations for the due celebration of marriages, it is the duty, as well as the interest, of all the citizens, to conform to such regulations. A deviation from them may tend to introduce fraud and surprise in the contract; or, by a celebration without witnesses, the vilest seductions may be practised under the pretext of matrimony. When, therefore, the statute enacts that no person but a justice or a minister shall solemnize a marriage, and that only in certain cases, the parties are themselves prohibited from solemnizing their own marriages by any form of engagement, or in the presence of any witnesses whatever. If this be not a reasonable inference, fruitless are all the precautions of the legislature.... A marriage, merely the effect of a mutual engagement between the parties, or solemnized by any one not a justice of the peace, or an ordained minister, is not a legal marriage, entitled to the incidents of a marriage duly solemnized." In Fenton v. Reed, 4 Johns. 54, the court say: "No formal solemnization of marriage is requisite. A contract of marriage made per verba de praesenti amounts to an actual marriage, and is as valid as if made in facie ecclesios" The opinion was probably given by Mr. Chief Justice Kent, who uses the same language in the first edition of his Commentaries. But the remark is somewhat obiter, and perhaps did not receive the particular attention of the court; the case being decided on the ground that the circumstances of the case warranted an inference of actual marriage.