Dyer v. Brannock. emnized by a justice of the peace, outside of his territorial jurisdiction. But I have copied largely from Judge FORD's opinion, because it is frequently referred to with approbation, not only in text-books, but in subsequent adjudications, as an able discussion of the subject. The case of Rodebaugh v. Sanks, 2 Watts, 11, was decided in 1833. GIBSON, C. J., in that case, observes: "Many provisions in the act of 1700 and 1729, though doubtless wholesome when they were enacted, are ill-adapted to the habits and customs of society as they now exist. It is not too much to say, that a rigid execution of them would bastardize a vast majority of the children which have been born in the State for half a century, for if the clause which requires that all marriages' shall be solemnized by taking each other to husband and wife before 'twelve witnesses,' were taken according to its natural import for a declaration of what shall be a legal marriage and what not, it would follow that a marriage contracted in any other form or way is void. To escape from a conclusion imputative of guilt to the parties and destructive of the civil rights of their offspring, it is necessary to hold not only this clause, but those which require a certificate of marriage under the hands of the parties and the twelve witnesses, to be registered in the proper office, as well as publication of banns by posting on the church or court-house doors, with other matters fallen into disuse, to be but directory.” In 1845, in the Court of Quarter Sessions at Philadelphia (Nathan's Case, 2 Brewster, 149), Judge PARSONS says: "It seems to be clearly settled in the United States, that marriage is but a civil contract, and it is not necessary that a clergyman or magistrate should be present to give validity to the marriage; and if the contract be made per verba de præsenti, and remains without cohabitation, or if made per verba de futuro, and is followed by consummation, it amounts to a valid marriage, which the parties, being competent as to age and consent, cannot dissolve, and is equally binding as if made in facie ecclesiæ. The question has been very fully considered by the Supreme Court of this State, and held to be the law here, that marriage is a civil contract, which may be completed by any words in the present tense, without regard to form, nor is it absolutely necessary to be done before a clergyman or a magistrate." In Richard v. Brehm, 23 P. F. Smith, 140, decided by the Dyer v. Brannock. Supreme Court of Pennsylvania in 1873, MERCUR, J., observed: "Marriage is a civil contract, jure gentium, to the validity of which the consent of parties, able to contract, is all that is required by natural or public law. If the contract is made per verba de præsenti, though it is not consummated by cohabitation, or if it be 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. The fact of marriage may be proved by competent and satisfactory evidence. * Marriage is in law a civil contract, not requiring any particular form of solemnization before officers of church or State." * The case of Bissel v. Bissel, 55 Barb. 326, was decided in 1869. It is there said: "It is well settled that no religious ceremony, or form of any description, is essential to the validity of marriage. All that is requisite is that the parties should be capable of contracting, and that they should actually contract to be husband and wife. A mere agreement to marry at some future time, followed by cohabitation, will not constitute a marriage, but an agreement, made in the present tense, whereby the parties assume toward each other the marital relation, is an actual marriage. This agreement may be written or verbal, with or without witnesses, and may be proved like any other contract; when proved to the satisfaction of a court of justice, it constitutes a lawful marriage." The case of Newbury v. Brunswick, 2 Vt. 159, was decided in 1829. PADDOCK, J., delivered the opinion of the court, a part of which is as follows: "To marry is one of the rights of human nature, instituted in a state of innocence for the protection thereof, and was ordained by the great Lawgiver of the universe, and not to be prohibited by man. Yet human forms and regulations are necessary for the safety and security of the community; but those forms and regulations are to be within the reach of every person wishing to use them; and if they are not, other forms and customs will be substituted; and such was the case in this instance. Before the days of Pope Innocent III solemnization of marriages in churches was not known. After the agreement to cohabit, the man led the woman to his habitation, which was all the ceremony then in use. *** It must, however, be admitted that great convenience is experienced from the celebration of marriages before constituted authorities, for it not only furnishes proof of the best description, but the preservation of it is directed by statute, and easily attained Dyer v. Brannock. when needed. But the law, treating the marriage agreement of the parties as the marriage, regulating only the manner and form of celebrating it and preserving the evidence thereof, admits proof other than the copy of the registry or record of the magistrate or witnesses -the declaration of the man or woman, the continued understanding of friends, and cohabitation as evidence of the fact - and as neither our statute (nor that of 26 George II) declares that marriage was void which was not consummated according to the provisions of them, no sound reason can be offered why the covenants and agreements of marriage between H. and P. per verba de præsenti, followed by cohabitation, should not be deemed as valid, to every intent, as though made before the altar, specially as it is viewed, both in this State and in England, in no other light - than as a civil contract." The case of Holmes v. Holmes, 6 La. (O. S.) 463, was decided in 1833. In that case, Judge BULLARD says: "Marriage is regarded by our law in no other light than as a civil contract, highly favored and depending essentially on the free consent of the parties capable by law of contracting. Our Code does not declare null a marriage not preceded by a license, and not evidenced by an act signed by a certain number of witnesses and the parties; nor does it make such an act exclusive evidence of the marriage. These laws relating to forms and ceremonies, here regarded as directory to those alone who are authorized to celebrate marriages, are intended to guard against hasty and inconsiderate marriages in defiance of parental authority. Like all other contracts, it may be proved by any species of evidence not prohibited by law, which does not presuppose a higher species of evidence within the power of the party." The case of Campbell's Admr. v. Gullatt, 43 Ala. 57, was decided in 1869. The Alabama statute resembled the Missouri statute, except that it declared positively "that no marriage shall be solemnized without a license issued by the judge of probate of the county where the female resides ;" yet the court held in that case as follows: "Such laws do not declare marriages, not solemnized in accordance with their provisions, invalid. We, therefore, do not feel authorized to do what the laws themselves have not done, but we hold that in this State, a marriage not celebrated in conformity with the said laws on marriages, that is, celebrated without a license issued by a judge of probate or not by any one of the persons or religious societies named in such law, or without comply Dyer v. Brannock. ing with other provisions of said law, is not to be declared invalid, provided the requirements of the common law have been substantially complied with; in other words, that a marriage good at the common law is a valid marriage in this State." In Hargroves, Admr. v. Thompson, 31 Miss. 211, decided in 1856, HARDY, J., observed: "There is nothing in the statutes of Mississippi directly rendering marriages, conducted without the observance of the rule therein prescribed, illegal and void, and the rule which has been sanctioned in reference to marriages not solemnized according to statutory regulations is, that even prohibitory words in a marriage act will not authorize an inference of the nullity of the marriage, unless the nullity is declared by the act; and although persons who may violate the forms required by the statutes in solemnizing marriages, may be liable to the penalties provided for the non-compliance, yet marriages contracted without a conformity to such regulations are generally held to be valid, if made between parties capable by the common law of contracting them, unless the statutes positively declare that marriage, not conducted in conformity with their provisions, shall be void. We think this is the proper construction to be given to our statutes on this subject, which appear to be similar in their provisions to the statutes of other States in which this construction has been adopted." In Carmichael v. The State, 12 Ohio St. 553, it was held that where parties openly and mutually covenanted to a contract of present marriage- then to become husband and wife-and thereafter cohabited as such, it was a legal marriage, and the man was liable to prosecution for bigamy, if he had been married before and his wife was still living. In Graham v. Bennet, 2 Cal. 503, decided in 1852, the same doctrine is asserted. In Tennessee (see Bashaw v. The State, 1 Yerg. 183) the statute required a publication of banns or a license from under the hand and seal of the governor, and enacted "that all marriages solemnized as aforesaid, without such license first had, shall be and are hereby declared illegal and void." And the court held, PECK, J., dissenting, that a marriage celebrated without a license or without publication of banns was void. This act was passed in 1766, and before the separation from North Carolina. Hence, the decision in North Carolina in 6 Ired. 23, State v. Robbins. So that, as far as I have been able to discover, the only decision in the United States conflicting with the general doctrine Dyer v. Brannock. stated by Mr. Bishop, is the case in 7th Massachusetts Reports, heretofore referred to. These extracts are probably sufficient to show the general current of American authority, and would seem to justify our conclusion, stare super antiquas vias. Our statutes are essentially like those of the States from whose courts opinions have been quoted, and in some respects less stringent than many others. There is, at all events, no positive declaration in our statute that a marriage not celebrated or solemnized before a magistrate or minister of the gospel shall be void. It will not be understood that we assent to all the positions assumed by those judges and writers from whom we have quoted; we merely conclude from these authorities, as well as upon general principles and public policy, that the instructions of the circuit judge were correct. Nothing is said in these instructions as to the efficacy of a promise to marry at some future time; nothing is declared as to the value of a promise in verba de præsenti, unless followed by cohabitation, and unless the parties intended a present marriage. If an affirmative response was given by the jury to the question propounded by the court, there was a contract of present marriage-openly made before the mother and brothers of the woman, and several strangers to the family — followed by cohabitation as husband and wife. That the husband, in pursuing his avocation, determined to join Major Long's exploration party to the Rocky Mountains, could hardly be regarded as a very strong proof of predetermined bad faith, nor his subsequent marriage, five years afterward. These were matters, however, for the jury to pass on. The jury were required to find that the parties contemplated no further ceremony to completely constitute the conjugal relation between them, and that they, at the time they stood up with joined hands, on the floor of Mrs. Collins' boarding-house, intended to become and believed that they had become husband and wife. We will not be understood as giving any opinion in regard to a contract of marriage in verba de futuro, followed by cohabitation, since the facts in the present case require none on that question. 10 Ohio St. 181. [Omitting a minor point.] The judgment of the Court of Appeals is reversed and the case remanded to the Circuit Court. The other judges concur. Judgment reversed. 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