against the validity of such marriages. The views and arguments of the text writers who maintain the legality of both these descriptions of marriage contract, are entitled to great weight, not only on account of the deservedly high legal reputation of the writers theinselves, but because, also, their conclusions are founded upon careful investigation and mature consideration of the subject. And while the mind is inclined to yield assent to the force of their reasoning, and to concur with them in the conclusion that, like any other contract, the marriage engagement, in its essence, requires nothing more than the mutual consent of competent parties to make it perfect and complete, still it must be admitted that this doctrine is far from being satisfactorily established by the adjudged cases, as a general rule of American law. And it may be safely assumed that, in many of the States at least, it will remain an open question for a series of years to come. 1. Ir might be reasonably supposed that a correct solution of the question respecting the validity of irregular marriages at common law, would necessarily determine the further question whether such marriages are sufficient to confer a right of dower. For if they be perfect and complete in contemplation of law, it would seem to follow that all the rights and incidents of marriage, including the right of dower, would attach thereto. But this result does not necessarily follow; and, strange as it may appear, if we assume the validity of this class of marriages to be fairly established, we shall find that the question yet remains whether, at common law, they entitle the wife to dower. 2. The old text writers appear to agree that formal solemnization of the marriage was necessary to create, on behalf of the wife, the right to this estate. Thus, Swinburne lays down the rule that spousals de præsenti, without solemnization, do not, according to the law of England, render the issue legitimate, nor give to the wife the right of dower, nor to the husband the right of property in the wife's goods, nor of administering upon her estate. The same doctrine is stated by Ayliffe, and also by Perkins. And in Fitzherbert's Natura Brevium this case is given: "A woman married in a chamber shall not have dower by the common law. 16 H. 3. Quaere of marriages made in chapels not consecrated, &c., for many are by license of the 1 Swinb. on Spousals, 2, 15, 234, 235. 3 Perk. sec. 194, 195, 306. 2 Ayliffe's Par. 245. bishop married in chapels. And it seemeth reasonable that in such case she shall have dower." 3. In Lord Hale's MSS. we find this case stated:2" A. contracts per verba de præsenti with B., and has issue by her, and afterwards marries C. in facie ecclesiæ. B. recovers A. for her husband by sentence of the ordinary, and for not performing the sentence he is excommunicated, and afterwards enfeoffs D., and then marries B. in facie ecclesiæ, and dies. She brings dower against D. and recovers, because the feoffment was per fraudem mediate between the sentence and the solemn marriage." But Lord Hale adds that this recovery was reversed coram rege et concilio, for the reason that neither the contract nor the sentence was a marriage, and therefore the husband had no seisin during his marriage with the demandant. 4. In Bacon's Abridgment the same general doctrine is stated in the following terms: "In order to make the marriage complete, so as to entitle the wife to dower, the issue to inherit, &c., the same must be celebrated in facie ecclesiæ; and therefore the private contract, without the priest's blessing, makes no marriage; though such contract may be enforced in the spiritual court." Blackstone, selecting his words with great circumspection, says: "Any contract made per verba de præsenti, 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 late act, deemed a valid marriage to many purposes, and the parties might be compelled, in the spiritual courts, to celebrate it in facie ecclesiæ." But for what purposes it was deemed valid, and for what invalid, he expresses no opinion, leaving us to infer, however, that such a marriage was not considered sufficient to clothe the parties with all the rights belonging to the perfect and complete marriage contract. 5. The more modern English text writers refer, with but little in the way of explanation or comment, to this condition. of the common law as laid down in the ancient authorities. Thus, Mr. Shelford says: "The common law had scruples in applying the civil rights of dower, and community of goods, and legitimacy, in cases of mere contracts of marriage, unaccompanied by celebration in the face of the church. . . . . The text 1 Fitzh. N. B. 150, N. 8 4 Bac. Ab. 531, tit. Mar. and Div., C. 2 Co. Litt. 33 a. note 10. 4 1 Com. 439. writers upon this subject agree in the necessity of a solemnization to confer the civil rights of marriage." And Mr. Park, in his work on Dower,' observes: "But though espousals, or affiance, as it is sometimes termed, was thus the very substance of matrimony, and even by the temporal lawyers the terms affiance and marriage were often promiscuously used, yet it does not seem to have been allowed that espousals alone, unaccompanied by celebration, should confer the civil rights of dower, or legitimacy; but to obtain these temporal advantages it was requisite that the contract of matrimony should be celebrated in the face of the church." 6. We have already referred to the elaborate opinion of Lord Stowell, in Dalrymple v. Dalrymple,2 as sustaining the validity of private marriages with great learning and ability. Yet even he remarks that "the common law certainly had scruples in applying the civil rights of dower and community of goods, and legitimacy, in the cases of these looser species of marriage." And while the six law lords who delivered opinions in the case of the Queen v. Millis, were equally divided as to the validity of this class of marriages, they all, 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. The views of Mr. Jacob and Mr. Macqueen, to the same effect, have already been given at length.3 7. The American authorities reflect but little light upon this perplexing phase of the question, the reports being, in a measure, barren of cases involving its discussion. Nevertheless we find Chancellor Kent, while maintaining without hesitation or qualification the validity of private marriages at common law, noticing with scrupulous exactness the peculiarity now referred to. "It would seem," he says, "to have been a question under the ecclesiastical law, prior to the English statute of 26 Geo. II., whether a contract of marriage, though followed by cohabitation, was not essentially imperfect unless it was solemnized by the intervention of a priest. It would not entitle the wife to dower, (Perkins, sec. 194, 306,) nor entitle the husband to administer on his wife's estates; Haydon v. Gould, in the court of delegates, 1 Salk. Rep. 119. The intervention of a person in holy 1 Park, Dow. 8. 2 Dalrymple v. Dalrymple, 2 Hag. Con. R. 54, 68; 32 Roper, H. & W. 474 ; Bright, H. & W. 397; & W. 4, 5; ante, ch. 3, 16. ante, ch. 3, § 12. ante, ch. 3, 14; Macq. H. orders seems to have been assumed in the cases as a material circumstance; The King v. The Inhabitants of Brampton, 10 East 282; Latour v. Teesdale, 8 Taunt. Rep. 830.” And an American writer upon the subject of dower states the rule with regard to marriage as follows: "The claimant demanding dower, must be the actual wife of the person at the time of his decease. And the marriage must have been solemnized in the manner required by law, and between persons capable of contracting matrimony together." But whether it is intended by this language to expresss an opinion adverse to the validity of marriages not solemnized in accordance with statutory formalities, or merely as to the sufficiency of such marriages to entitle the wife to dower, does not very clearly appear. 8. In no English case has it been held that the irregular marriage, or marriage by private contract, merely, confers the right of dower. In none of the cases in which an opinion was expressed by English judges in favor of the sufficiency of such marriages, was any question as to the right of dower involved. In the case stated by Lord Hale, the decision was directly against the claim of the alleged wife. Nor has any English writer ventured a decided opinion that these marriages are attended with this important incident of the perfect and complete marital contract. And in the United States not one of the cases maintaining the validity of contracts de præsenti was founded on an application for dower. Jackson v. Claw,3 and Donnelly v. Donnelly, were decided expressly upon the ground of a presumed actual solemnization of marriage. 9. But the inquiry immediately and naturally arises-If a marriage by private contract fails to give the woman the right of a widow in respect to dower, and the man the right of a husband in respect to the woman's property, and does not render the issue legitimate, nor impose upon the woman the disabilities of coverture, what incidents of the marriage relation can possibly attach thereto, and what is the nature of that connection which the parties are, by law, enabled to assume at will, and under cover of which cohabitation may be carried on for an indefinite period of time, but which, nevertheless, brands the issue with the stain of illegitimacy? In England the question is thus 2 Lambert on Dower, 14. 1 2 Com. 87, note a. 3 Jackson v. Claw, 18 John. 346; post, ch. 7 ? 11. 4 Donnelly v. Donnelly, 8 B. Mon. 113; ante, ch. 4, 2 16. 5 Macq. H. & W. 4; 2 Roper, H. & W. 474 ; 2 Bright, H. & W. 379. |