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neither of those cases involved this question, and the remarks of those learned judges were, therefore, incidental, and outside of the cases under consideration before them.
"Bouvier, in his institutes, Vol. I, p. 110, lays down the same doctrine as Kent and Greenleaf, in the same language, and cites Kent and Greenleaf, ubi supra, Fenton vs. Reed, and Jackson vs. Winne, before referred to, and also Cram vs. Burnham, 5 Greenl. 213; Hantz vs. Sealy, 6 Binn., 405;and Bac. Abr., Marriage, B.
“Cram vs. Burnham was a suit by Cram, upon a promissory note given to his pretended wife, with whom he was cohabitating as a wife, but, as the proof showed, really in a state of adultery. The court, in deciding the case, say, that if the proof had stopped with the proof of cohabitation, a marriage might have been presumed; but as the proof rebutted the presumption of marriage arising from the fact of cohabitation, the plaintiff could not recover in his own name, and have judgment against him. And in so far as the case has any bearing upon the question before us, its authority is against, rather than in favor of, the proposition which it was cited to sustain. Hantz vs. Sealy is equally far from sustaining the doctrine in support of which it is cited, except as to the validity of a marriage by words of contract in the present tense. Marriage or not, was the issue in the case. The words proved, on the part of the man, were 'I take you
my wife'; and the woman, being told that if she would say the same thing, the marriage would be complete, answered, 'To be sure he is my husband, good enough.' The court held that these were not words, on the part of the woman at least, of present contract, but had reference to the past, and did not constitute a marriage. The citation from Bacon's Abridgement is this: 'A contract in futuro, as, I will marry you, etc., may be enforced in the spiritual court, but such contract either party may release; also, if either party marry another person, such second marriage dissolves the contract.' This citation, so far from supporting the proposition of Bouvier, goes only to show the correctness of the distinction above mentioned, to-wit, that such a contract is no marriage, but it is only a contract which might, at one time in England, have been enforced in the spiritual courts and for a breach of which the law now gives a remedy in damages.
"Blackstone, 1 Com., 439, says: 'Any contract may be made per verba de praesenti, or in words of the present tense, and in case of cohabitation per verba de futuro, also, between persons able to contract, was, before the last act, deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiae.' What these 'many purposes' for which a marriage per verba de futuro was valid, were, does not very clearly appear; and, whatever they may have been, it seems now to be pretty well settled that they did not embrace a right to dower on the part of the wife, nor the right to administer on her estate or to her property, on the part of the husband, nor the legitimacy of offspring, nor the avoiding of a subsequent marriage pending the first. 2 Bright on Husband and Wife, 397. In Jewell vs. Jewell, 17 Peters, 213, the Supreme Court of the United States was equally divided on this question; and the remarks of the court in Patton vs. Philadelphia and New Orleans, 1 La. Ann. Rep., 98, are obiter.
"We have been cited to no case, and we can find none, decided either in. England or the United States,
to which such a marriage as this is claimed to be has been held valid. On the other hand, the well considered case of Cheney vs. Arnold, recently decided unanimously by the Court of Appeals of New York, 15 N. Y. (1 Smith), 345, is directly in point against it. That was an action for the recovery of real estate by a husband in right of his wife, who claimed as heir to her deceased father. She was the fruit of a cohabitation following a contract to marry per verba de futuro. It was a question of legitimacy only. The court, after a somewhat elaborate review of the whole subject, disapproved of the dictum of Cowen, J., in Starr vs. Peck, before cited, and held such contract to be no marriage in fact or at common law.
"The Queen vs. Millis, 10 Clark & Finnelly, 534, was a case in the House of Lords, in error to the Court of Queen's Bench in Ireland. The case arose upon a prosecution against Millis for bigamy, he having been married in Ireland per verba de praesenti, by a Presbyterian minister according to the form of that church, and, leaving the first, married another woman in England, in the face of the church. The case turned upon the question, which was formally put by the House of Lords to the judge of Westminster Hall, for their opinion, whether the first marriage was valid as a marriage at common law. The judges, not having seats in the House of Lords, through C. J. Tindal, of the Common Pleas, gave a unanimous opinion against the validity of the first marriage. In this the law lords, Lyndhurst, Cottenham, and Abinger, concurred. Brougham, Campbell and Denman were the other way. C. J. Tindal, and the six law lords above named, all delivered elaborate opinions, indicating much care and antiquarian research; and judgment was given against the validity of the first marriage. But, while the opinion of the eminent jurists of the kingdom was thus nearly balanced as to the validity, at common law, of a marriage by words of present contract, and not in the face of the church, there seems to have been no difference of opinion among them as to the invalidity of a marriage per verba de futuro, though followed by cohabitation. All of them are careful to distinguish the case before them from such a case, and either tacitly or expressly to admit the invalidity of the latter. And all of them, except Lord Brougham, admit that a marriage not celebrated in the face of the church, whatever else it may have been good for, did not carry with it the incident of dower. And the state of the law, as now understood in England, may be summed up as we find it in Kerr's Blackstone, 458: 'Any contract made per verba de praesenti, or in words of the present tense, and in the case of cohabitation, per verba de futuro, also, between parties able to contract, was, before the statute of George II, so far a valid marriage, that the parties might be compelled in the spiritual courts to celebrate it in facie ecclesae. But these verbal contracts are now of no force to compel a future marriage; their only operation being to give the party who is willing to perform his promise a right of civil action against the one who refuses to do so.'
"Finding ourselves, then, compelled by no preponderating force of authority to the adoption of a doctrine so loose as that which would be necessary to sustain the marriage claimed to exist in this case, we are unwilling to do so. It seems to us that grave considerations of public policy forbid it; but it would be alien to the customs and ideas of our people, and would shock their sense of propriety and decency. That it would tend to weaken the public estimate of the sanctity of the marriage relation; to obscure the certainty of the rights of inheritance; would be opening a door to false pretenses of marriage, and to the imposition upon estates of suppositious heirs; and would place honest, God-ordained matrimony and mere meretricious cohabitations too nearly on a level with each other. We are of opinion that the decree of the District Court ought to be reversed, and the original bill dismissed. Judgment accordingly."
Common law marriages are now abolished in many of the states of this country.?
SECTION 16. INDIAN AND SLAVE MARRIAGES.
Indian marriages between Indians living under tribal relations, contracted according to their own laws and customs are valid. Slave marriages were not binding at the time they were contracted but were generally validated by statutes passed in the various slave-holding states at the close of the civil war.
SECTION 17. ACTION FOR BREACH OF PROMISE TO
For questions relative to actions for breach of contracts to marry, consult the subject of Contracts.21 20 10 Ohio St., 181.
91 Vol. 3, Subj. 6.