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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,
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
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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