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 relationship of a husband or a wife; on the other hand it is felt that the idea of pre-ordained contracts on a matter over which the individual himself has no control is quite unreal and when any strict rules of equity prevail, necessarily invalid.  It is true that we still constantly find writers sententiously asserting their notions of the duties or the privileges involved by the “contract” of marriage, with no more attempt to analyze the meaning of the term “contract” in this connection than the Protestant Reformers made, but it can scarcely be said that these writers have yet reached the alphabet of the subject they dogmatize about.