just that either party should have an opportunity of withdrawal when the child had grown up. It would have been a doubtful favor to the infant, especially if a female, to compel the adult to marry her when her person or disposition did not please him. (32) A fourth incapacity is want of reason, page 438. That insanity makes the marriage void and null ab initio is clearly shown by Chancellor Kent in Wightman v. Wightman, 4 Johns. Ch. 343; Ewell's L. C. in Coverture, 602, though at the same time he holds that the nullity should be declared by some court of appropriate jurisdiction, "for the sake of the good order of society, and the quiet and relief of the party," and holds also that the court of chancery is the appropriate court. Whether that court have power to declare a marriage null in cases where the statute gives no ground of divorce, he leaves undetermined. As to the use of the terms "void" and "voidable," see Professor Ewell's note, page 609. Insanity at the time of marriage is not necessarily fatal to the status,where the cohabitation is continued. If the party recovers sanity, the cohabitation will affirm the invalid contract without any new solemnization. (Campbell v. Mesier, 4 Johns. Ch. 333; 8 Am. Dec. 570; Cole v. Cole, 5 Sneed, 57; 70 Am. Dec. 275. Allis v. Billings, 6 Met. 415; 39 Am. Dec. 744, though quoted to this point is a case on the ratification of a deed. It may be read for the criticism on "void" and "voidable.") What degree of insanity is sufficient to avoid the marriage? The old decisions that no degree was sufficient for the purpose rested unquestionably on the doctrine, that marriage was a sacrament and fell with it. (True v. Ranney, 21 N. H. 52; 53 Am. Dec. 165.) Some cases go to the other extreme and hold that a valid marriage may be formed in a condition that would invalidate any other contract. (Ex parte Glen, 4 Denio 546.) But in England it seems settled that the only question for the court is whether the mind of the contracting party was diseased or not at the time of the contract; if the evidence establishes that fact the court will not enter into the consideration of the extent of the derangement. If disease is shown, the court has no means of gauging the extent of the derangement consequent upon it, or of affirming the limits within which the disease might operate to obscure or divest the mental power. (Peaty v. Peaty, Law R. 1 P. D. 335.) But some American cases hold that the question is whether the party is sane enough to marry that the court must look to the effect of the disease in this particular consequence. "It is not altogether a question of brain quantity, or of brain quality in the abstract; . . . . it is whether the alleged insane acted rationally regarding marriage, and the particular marriage; not indeed whether he acted wisely, but whether he acted from the impulse of a mind sane as respects the thing done." (1 Bishop on Marriage and Divorce, ?? 128, 129, and cases cited, few of which, however, discriminate between general incompetence and incompetence quoad hoc. See also cases collected 44 Am. Dec. 55, 56.) ... (33) The parties must actually contract themselves in due form of law, page 439. The contract of marriage is tripartite, the husband, the wife, and the state being parties thereto; and it can neither be entered into nor dissolved except by the consent of and in the manner prescribed by the state. (It necessarily follows that no admission by either party to the contract, however conclusive upon such party, can be conclusive upon the state in a suit for dissolution of the contract.) (Summerbell v. Summerbell, 37 N. J. Eq. 603, 605; Roche v. Washington, 19 Ind. 327; Cabell v. Cabell, 1 Met. [Ky.] 319.) Marriage is not merely a civil contract, but something more. "The two parties whose consent is indispensable, with the consent of the state, whose concurrence also is indispensable, proceed to take upon themselves obligations of a solemn and indissoluble character." (Per Gantt, J., in Dyer v. Brannock, 2 Mo. App. 432, 449. The passage of this opinion, pp. 444-449, should be read as an admirable statement of the true legal nature of marriage as a relation. See, also, to same effect, remarks of Wright, J., in Lucas v. Sawyer, 17 Iowa, 522, and cases cited.) The earlier American cases usually hold that there must be a formal marriage before a clergyman or civil officer (except in the case of Quakers, Jews, etc.), though his presence seems to be all that the law required, and no form or ceremony was essential. (Milford v. Worcester, 7 Mass. 48, 1807.) A few states still adhere to the requirement of a formal marriage. (Commonw. v. Munson, 127 Mass. 459; State v. Hodgskins, 19 Me. 155; Estill v. Rogers, 1 Bush, 62; Robertson v. State, 42 Ala. 509; Post v. Post, 70 Ill. 484.) But the United States Supreme Court holds that this is not a requirement of the common law,* and that state statutes are not inconsistent with it, unless they go further than to prescribe a form of marriage, by expressly avoiding marriages where that form is not observed. (Meister v. Moore, 96 U.S. 76. The same question had been left unanswered by an equal division of the court in Jewell's Lessee v. Jewell, 1 How. 219.) The courts of some states (e. g., N. Y., Mo.) have gone very far in indulging a presumption of marriage from cohabitation and reputation, declarations of the parties, etc., even where there was no pretense of showing an actual ceremony or formal contract of marriage. (Fen Jesson v. Collins, 2 Salk. 437; 1 Mod. 155, is a sufficient authority for this. Prohibition was asked in a case of pretended pre-contract, and Holt, C. J., refused it, saying that a contract de præsenti was an actual marriage as much as one in facie ecclesiæ. (But see p. 767.) lon v. Reed, 4 Johns. 52; 4 Am. Dec. 244; Van Buskirk v. Claw, 18 Johns. 345; Clayton v. Wardell, 4 N. Y. 230; O'Gara v. Eisenlohr, 38 N. Y. 296; Brinkley v. Brinkley, 50 N. Y. 184.) Note that in most of these cases the question arose after the death of one party, or both, and the cohabitation had lasted until death, and the rights of children or of the survivors were to be protected. Aliter as between the parties themselves. (See Collins v. Collins, 71 N. Y. 269; 80 N. Y. 1.) Such a presumption has been made even where it was clear that the parties cohabited at first without marriage (first two cases above; Rose v. Clark, 8 Paige, 574), or where there was a subsequent actual marriage (Starr v. Peck, 1 Hill, 270; Betsinger v. Chapman, 88 N. Y. 487); and it is not necessary to show any precise time to which the presumption of a change from illicit to lawful connection attaches. (Caujolle v. Ferrie, 23 N. Y. 90; Badger v. Badger, 88 N. Y. 547.) The same presumption from acts abroad or at sea, where there is no evidence of law different from that of the forum (even though it is known to be so). (Hynes v. McDermott, 82 N. Y. 41; 37 Am. Rep. 538. Cohabitation and reputation of being husband and wife must both exist before a presumption of marriage can be raised. Either alone is not sufficient for that purpose. (Cargile v. Wood, 63 Mo. 501, 513; following, 1 Bishop on Marriage and Divorce, ? 438; 1 Greenleaf on Evidence, 107.) This was the case of a child born in 1861 of parents who had cohabited since 1853, and had been indicted for adultery in 1859, the father pleading guilty.) And where the cohabitation is at first notoriously illicit, it will not support such a presumption. (Lord Eldon in Cunningham v. Cunningham, 2 Dow. P. C. 482.) If it is alleged that it subsequently changed to a lawful one, the burden of proof is on the party to show at what time it became lawful. (Clayton v. Wardell, 4 N. Y. 230; Matter of Taylor, 9 Paige, 611; Rore v. Clark, 8 Paige, 574.) But an executory contract of marriage followed by cohabitation does not establish a marriage at common law (Cheney v. Arnold, 15 N. Y. 315; Duncase v. Duncase, 16 Ohio St. 181; Queen v. Millis, 10 Clark & F. 534; Beamish v. Beamish, 9 H. L. Cas. 274); though it may be prima facie evidence of a marriage de præsenti. (Peck v. Peck, 12 R. I. 485.) There are dicta and even cases which sustain a mar riage per verba de futuro by a promise to marry, followed by cohabitation. In states where an actual marriage may be presumed from cohabitation there is of course no objection to such an inference of fact from these circumstances. But to argue its validity as a conclusion of law depends on an entire mistake. Such a promise could have a legal effect only in a system where espousals are regarded as legally binding, as they were in the canon law. (C. 30, X. de sponsalibus, iv. 1; C. 1, 3, 6, X. de cond. appos. iv. 5.) That law consistently gave an action for the enforcement of the promise, though if the party refused to perform it, it did not compel the marriage, but only imposed penance and compensation. (C. 10, 17, 22, de spons. iv. 1.) Only when cohabitation had followed, it treated the marriage as already complete. Even if the doctrine had passed from the church courts to those of the common law in England, it would have been abrogated by the marriage act; and in this country there has never been any logical basis for it, although Mr. Bishop, in Marriage and Divorce, sections 253 265, seems to hold otherwise. (34) There are two kinds of divorce, the one total, the other partial, page 440. Divorce was entirely unknown to the courts of common law in England until long after the latest date at which the American law diverged from the parent system. The only divorce from the bond of marriage was |