eat them and to enjoy them every day, he would have signed that contract as joyously as any radiant bridegroom or demure bride signs the register in the vestry.  But is a complex man or woman, with unknown capacities for changing or deteriorating, and with incalculable aptitudes for inflicting torture and arousing loathing, is such a creature more easy to be bound to than an exquisite fruit?  All the countries of the world in which the subtle influence of the Canon law of Christendom still makes itself felt, have not yet grasped a general truth which is well within the practical experience of a child of seven.[362]

The notion that such a relationship as that of marriage can rest on so fragile a basis as a pre-ordained contract has naturally never prevailed widely in its extreme form, and has been unknown altogether in many parts of the world.  The Romans, as we know, explicitly rejected it, and even at a comparatively early period recognized the legality of marriage by usus, thus declaring in effect that marriage must be a fact, and not a mere undertaking.  There has been a widespread legal tendency, especially where the traditions of Roman law have retained any influence, to regard the cohabitation of marriage as the essential fact of the relationship.  It was an old rule even under the Catholic Church that marriage may be presumed from cohabitation (see, e.g., Zacchia, Questionum Medico-legalium Opus, edition of 1688, vol. iii, p. 234).  Even in England cohabitation is already one of the presumptions in favor of the existence of marriage (though not necessarily by itself regarded as sufficient), provided the woman is of unblemished character, and does not appear to be a common prostitute (Nevill Geary, The Law of Marriage, Ch.  III).  If, however, according to Lord Watson’s judicial statement in the Dysart Peerage case, a man takes his mistress to a hotel or goes with her to a baby-linen shop and speaks of her as his wife, it is to be presumed that he is acting for the sake of decency, and this furnishes no evidence of marriage.  In Scotland the presumption of marriage arises on much slighter grounds than in 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