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Table of contents
THE CONQUEST OF THE VENEREAL DISEASES-8.1
THE CONQUEST OF THE VENEREAL DISEASES-8.2
THE CONQUEST OF THE VENEREAL DISEASES-8.3
THE CONQUEST OF THE VENEREAL DISEASES-8.4
THE CONQUEST OF THE VENEREAL DISEASES-8.5
THE CONQUEST OF THE VENEREAL DISEASES-8.6
FOOTNOTES
SEXUAL MORALITY-9.1
SEXUAL MORALITY-9.2
SEXUAL MORALITY-9.3
SEXUAL MORALITY-9.4
SEXUAL MORALITY-9.5
SEXUAL MORALITY-9.6
SEXUAL MORALITY-9.7
SEXUAL MORALITY-9.8
SEXUAL MORALITY-9.9
MARRIAGE-10.1
MARRIAGE-10.2
MARRIAGE-10.3
MARRIAGE-10.4
MARRIAGE-10.5
MARRIAGE-10.6
MARRIAGE-10.7
MARRIAGE-10.8
MARRIAGE-10.9
MARRIAGE-10.10
MARRIAGE-10.11
MARRIAGE-10.12
FOOTNOTES
THE ART OF LOVE-11.1
THE ART OF LOVE-11.2
THE ART OF LOVE-11.3
THE ART OF LOVE-11.4
THE ART OF LOVE-11.5
THE ART OF LOVE-11.6
THE ART OF LOVE-11.7
THE ART OF LOVE-11.8
THE ART OF LOVE-11.9
THE ART OF LOVE-11.10
THE ART OF LOVE-11.11
FOOTNOTES
THE SCIENCE OF PROCREATION-12.1
THE SCIENCE OF PROCREATION-12.2
THE SCIENCE OF PROCREATION-12.3
THE SCIENCE OF PROCREATION-12.4
THE SCIENCE OF PROCREATION-12.5
THE SCIENCE OF PROCREATION-12.6
THE SCIENCE OF PROCREATION-12.7
THE SCIENCE OF PROCREATION-12.8
THE SCIENCE OF PROCREATION-12.9
FOOTNOTES
INDEX OF AUTHORS

England. This may be connected with the ancient and deep-rooted 

custom in Scotland of marriage by exchange of consent (Geary, op. 

cit. Ch. XVIII; cf., Howard, _Matrimonial Institutions_, vol. i, 

p. 316). 

 

In the Bredalbane case (Campbell _v._ Campbell, 1867), which was 

of great importance because it involved the succession to the 

vast estates of the Marquis of Bredalbane, the House of Lords 

decided than even an adulterous connection may, on ceasing to be 

adulterous, become matrimonial by the simple consent of the 

parties, as evidenced by habit and repute, without any need for 

the matrimonial character of the connection to be indicated by 

any public act, nor any necessity to prove the specific period 

when the consent was interchanged. This decision has been 

confirmed in the Dysart case (Geary, loc. cit.; cf. C.G. 

Garrison, "Limits of Divorce," _Contemporary Review_, Feb., 

1894). Similarly, as decided by Justice Kekewich in the Wagstaff 

case in 1907, if a man leaves money to his "widow," on condition 

that she never marries again, although he has never been married 

to her, and though she has been legally married to another man, 

the testator's intentions must be upheld. Garrison, in his 

valuable discussion of this aspect of legal marriage (_loc. 

cit._), forcibly insists that by English law marriage is a fact 

and not a contract, and that where "conduct characterized by 

connubial purpose and constancy" exists, there marriage legally 

exists, marriage being simply "a name for an existing fact." 

 

In the United States, marriage "by habit and repute" similarly 

exists, and in some States has even been confirmed and extended 

by statute (J.P. Bishop, _Commentaries_, vol. i, Ch. XV). 

"Whatever the form of the ceremony, and even if all ceremony was 

dispensed with," said Judge Cooley, of Michigan, in 1875 (in an 

opinion accepted as authoritative by the Federal courts), "if the 

parties agreed presently to take each other for husband and wife, 

and from that time lived together professedly in that relation, 

proof of these facts would be sufficient.... This has been the 

settled doctrine of the American courts." (Howard, op. cit., vol. 

iii, pp. 177 et seq. Twenty-three States sanction common-law 

marriage, while eighteen repudiate, or are inclined to repudiate, 

any informal agreement.) 

 

This legal recognition by the highest judicial authorities, alike 

in Great Britain and the United States, that marriage is 

essentially a fact, and that no evidence of any form or ceremony 

of marriage is required for the most complete legal recognition 

of marriage, undoubtedly carries with it highly important 

implications. It became clear that the reform of marriage is 

possible even without change in the law, and that honorable 

sexual relationships, even when entered into without any legal 

forms, are already entitled to full legal recognition and 

protection. There are, however, it need scarcely be added here, 

other considerations which render reform along these lines 

incomplete. 

 

It thus tends to come about that with the growth of civilization the 

conception of marriage as a contract falls more and more into discredit. 

It is realized, on the one hand, that personal contracts are out of 

harmony with our general and social attitude, for if we reject the idea of 

a human being contracting himself as a slave, how much more we should 

reject the idea of entering by contract into the still more intimate 


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