celebrated within this State between the 17th day of April, 1861, and the 1st day of January, 1866, be void by reason of the same having been solemnized without such license." While it is true statutes regulating marriages have generally and properly been construed as directory, and not mandatory, since marriage is a natural right, and one that existed independent of statutes, any commands which a statute may give concerning its solemnization should, if the form of words will permit, be interpreted as mere directions to the officers of the law and to the parties, not rendering void what is done in disregard thereof. Consequently, the doctrine has become established, as a general rule, that a marriage good at common law will be held valid, notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity. This rule, however, is not universal: 1 Bish. Mar. & Div., § 283. It seems to me, therefore, that when the terms of the statute are such that they cannot be made effective, to the extent of giving each and all of them some reasonable operation, without interpreting the statute as mandatory, then such interpretation should be given to it. The statute under consideration, in express words, declares that "every marriage in this State shall be under a license, and be solemnized in the manner herein provided." It is possible that these words standing alone, should, under the general rule just state', be interpreted as merely directory. But the statute does not stop here. It qualifies these words by provisions which would be wholly useless and unnecessary if it were intended and should be held that the preceding provisions are simply directory. It is declared that certain marriages shall not "be deemed or adjudged void" because the person solemnizing them did not in fact have authority to do so. It also declares that certain other marriages shall not "be void" because they were solemnized without a license. These exceptions or qualifying provisions seem to me to be equivalent to an express declaration that marriages had in this State, contrary to the commands of the statute, and not saved by the exceptions, shall be treated as void. It is apparent that the legislature must have interpreted the statute as making the excepted marriages null and void without the excepting clauses, for otherwise the exceptions would be useless, and would not have been made. The introduction of the exemptions is necessary, exclusive of all other independent, extrinsic exceptions. The maxim is clear, "expressum facit cessare tacitum," affirmative specification excludes implication: Potter's Dwar. St. 221; Cates v. Knight, 3 Term R. 442. It is therefore my conclusion that no marriage, or attempted marriage, if it took place in this State, can be held valid here, unless it has been shown to have been solemnized according to our statutes. It is very certain, it seems to me, that no attempted or pretended marriage can be held valid when it affirmatively appears that it has not been so solemnized. There is no pretense that the pretended marriage sought to be established in this case was solemnized in any respect according to the requirement of the statute. I am, therefore, of the opinion that the plaintiff and defendant in this case never were legally married, and that the plaintiff is not entitled to the relief prayed in her bill. I have come to this conclusion with less regret because, by the express command of our statute, "the issue of marriage deemed null in law, or dissolved by a court, shall nevertheless be legitimate." Section 7, c. 78, Code, p. 485; Stones v. Keeling, 5 Call. 143; Rice v. Efford, 3 Hen. & M. 228. For the reasons stated, the decrce of the Circuit Court must be reversed, and the plaintiff's bill dismissed. JOHNSON, GREEN, and WOODS, JJ., concurred. In Richard v. Brehm, 73 Pa. St. 140, the court said: "Marriage is a civil contract jure gentium, to the validity of which the consent of parties able to contract is all that is required by natural or public law. If the contract is made per verba de presenti, though it is not consummated by cohabitation, or if it be made per verba de futuro and be followed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary." It is believed that the foregoing is a correct statement of the common law of marriage as recognized by the weight of authority: 2 Kent. Com. 87; 1 Black. Com. 439. 1. Marriage per verba de presenti.— According to the weight of authority, the present consent to take each other as husband and wife seems to have been sufficient to constitute marriage at common law. This consent may be expressed verbally or in writing, with or without witnesses or some person authorized to solemnize the marriage, without any particular form or ceremony, and may be proved as any other contract: Stew. M. & D., 8 84 et seq. "It is a present and perfect consent, the which alone maketh matrimony without either public solemnization or carnal copulation, for neither is the one nor the other the essence of matrimony, by consent only:" Swinburne Est., 4. "The only difference between a marriage celebrated by a formal ceremony and one not so celebrated is, that in the former case the regular celebration is conclusive evidence of the mutual consent requisite to the validity of the marriage, while in the latter it is competent to rebut the proof of the marriage by other evidence:" Clayton v. Wardell, 4 N. Y. 230. Cohabitation does not appear to have been essential to the validity of marriage per verba de presenti: Clayton v. Wardell, 4 N. Y. 230; Dumaresiy v. Fishly, 3 A. K. Marsh. 368; 2 Bish. M. & D., 223. Contra, Floyd v. Calvert, 53 Miss. 37; Taylor v. State, 52 Id. 84. See also Cartwright v. McGown, S. Ct. Ill. June 17, 1887. It is said to have been necessary by the law of Scotland: 2 Parr. Cont. (7th ed.) 75. "On the other hand, it is not suffi cient to agree to present cohabitation and a future regular marriage when more convenient, or when a wife die, or when a ceremony can be performed. * * *To constitute marriage the consent must not be attended by an agreement that some intervening thing shall be done before the marriage takes effect, as that it be publicly solemnized:" Curtwright v. McGown, 8. C. Ill. June 17, 1887; Stew. M. & D. 86; 2 Bish. M. &. D. § 249; Carmichael v. State, 12 O. St. 553. 2. Illustrations.-In Bissell v. Bissell, 55 Barb. 424, "He placed the ring upon her finger stating, 'This is your wedding ring; we are married.' She received the ring as a wedding ring. He then said: 'We are married just as much as Charles is to his wife' (referring to his brother and sister-in-law). 'I will live with you and take care of you all the days of my life as my wife.'" Her assent to this was held to constitute a valid marriage. In Hantz v. Sealy, 6 Binn. (Pa.) 405, the defendant said: "I take you (the plaintiff) for my wife," and the plaintiff being told that if she would say the same thing the marriage would be complete, answered, “To be sure, he is my husband good enough." Now these words of the woman do not constitute a present contract, but allude to the past contract which she always asserted to be a lawful marriage. This holding seems at this distance too literal for the ordinary requirements of life. In a recent Michigan case, Clancy v. Clancy, S. C. Mich., June 9, 1887, marriage was claimed by virtue of cohabitation under the following agreement: "DETROIT, March 24, 1886. "An article of agreement made and entered into by and between Mrs. Mary McCarthy, of Chicago, Illinois, and Dennis Clancy, of Detroit, Michigan. We mutually and jointly, from now, henceforth and forever, agree to live as man and wife, but each party retain the right to buy, sell, and transfer their respective properties without question of the other party. "MRS. MARY MCCARTHY. "DENNIS CLANCY. "Witness: Hugh Murray. "Emma Murray." This was held to constitute an agreement for illicit cohabitation and not for marriage. But see the dissenting opinion of MORSE, J. 3. Marriage per verba de prescnti approved. The doctrine that no celebration was necessary to the validity of marriage at common law has been approved in Alabama, California, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Mississippi. Missouri, New York, Ohio, Pennsylvania, and Tennessee and by the courts of the United States: Cases cited by respective States below. No celebration is necessary by the law of nature: Richard v. Brehm, 73 Pa. St. 140. Or by the civil law: Hallett v. Collins, 10 How. 174. Or by the law of Scotland: Dalrymple v. Dalrymple, 2 Hagg. Const. 54; McAdam v. Walker, 1 Dow. 148. Or by the Canon Law previous to the Council of Trent: Patton v. Philadelphia, 1 La. Ann. 98. 4. Marriage per verba de presenti disapproved. On the other hand, the courts of Maryland, Massachusetts, and North Carolina have declared marriage per verba de presenti, as well as per verba de futuro cum copula to be imperfect at common law until celebrated in facie ecclesie-not conferring rights of property upon the parties or legitimacy upon their children, but only the right to compel a specific performance of the marriage contract in a spiritual court. See cases cited below. This is the view finally sustained by the English courts. In Queen v. Millis, 10 Clark & Fr. 534, the discussion fills 374 pages, and the court was equally divided in opinion. This case has been ably criticised by Mr. Bishop (2 Bish. M. & D., ? 275) and in Canada (Breakey v. Breakey, 2 U. C. [Q. B] 349). It has been followed, however, by the later English cases: Beamish v. Beamish, 9 II. L. Cas. 274; Catherwood v. Caslon, 13 M. & W. 261. See Wigmore's Case, 2 Salk. 438; King v. Brampton, 10 East. 282; Dalrymple v. Dalrymple, 2 Hagg. C. R. 79. 5. Marriage per verba de futuro cum copula.-In Duncan v. Duncan, 10 O. St. 181, the court said: "The idea that a contract for a future marriage VOL. XXXVI.-14 followed by cohabitation as husband and wife, is itself a valid marriage at common law, seems to have obtained currency on the credit of remarks made by several elementary writers of distinguished learning and ability and by certain judges of high character, speaking by way of obiter dicta in cases in which this question was really in no way involved. But the better opinion now seems to be that these remarks are unsupported by any case actually adjudicated and entitled to be considered as authoritative, and that such a contract never was a good marriage at common law, either in this country or in England, and the mistaken doctrine seems to have originated either in the inadvertent confounding of what might, in the absence of rebutting evidence, be good presumptive evidence of marriage with marriage itself; or from the fact that such a contract per verba de futuro. followed by cohabitation, was one of which the Canon Law, as administered by Ecclesiastical Courts in England until restrained by statute, would enforce specific performance." In Cheney v. Arnold, 15 N. Y. 345, the court said: "The principle that a promise followed by intercourse was in some sense a marriage was a branch of the ecclesiastical system, resulting from the acknowledged jurisdiction of the ecclesiastical courts to compel the performance of such marriages by spiritual censure. Having dispensed with that jurisdiction, we cannot consistently acknowledge any marriage to be valid which requires the intervention of a spiritual court to make it perfect. We must insist upon those circumstances which the law requires in an executed contract upon any other subject. Mutual promises to marry in future are executory, and whatever indiscretions the parties may commit after making such promises, they do not become husband and wife until they have actually given themselves to each other in that relation." However, the authority of numerous elementary writers and jurists is found in support of the doctrine that a good common law marriage may be contracted per verba de futuro cum COpula: 2 Kent Com. 87; 2 Greenl. Ev. 460; 1 Bouv. Inst. 110; Starr v. Peck, 1 Hill (N. Y.) 270; Dumaresly v. Fishly, 3 A. K. Marsh. 369; Teter v. Teter, 88 Ind. 494; Askew v. Dupree, 38 Ga. 173; Est. McCausland, 52 Cal. 568; Cartwright v. McGown S. Ct. Ill., June 17, 1887. See also Patton v. Philadelphia, 1 La. Ann. 98. The question does not seem to be one of great difficulty when we consider that "the copula is presumed [only] to have been allowed on the faith of the marriage promise, and that so the parties at the time of the copula accepted of each other as man and wife;" which presumption may be rebutted. "If the woman in surrendering her person is conscious that she is committing an act of fornication instead of consummating her marriage, the copula cannot be connected with any previous promise that has been inade and marriage is not thereby constituted:" Post v. Post, 70 Ill. 484; Hebblethwaite v. Hepworth, 98 Id. 123; Cartwright v. McGown, Supra. The copula must be in fulfillment of the agreement to marry or in consummation of such a contract. The fact that sexual intercourse occurs after an agreement to marry at some future day is not of itself sufficient to establish the marriage relation. To be availing, the parties at the time of copula must THEN accept each other as husband and wife: Stoltz v. Doering, 112 Ill. 234; Peck v. Peck, 12 R. I. 485; North v. Valk, Dud. Eq. (S. C.) 212; Fryer v. Fryer, Rich. Eq. Cas. (S. C.) 85. Thus understood, marriage per verba de futuro cum copula becomes really marriage by present consent, and the term one of convenience simply. 6. Effect of Statutes on the subj.ct -Celebration not necessary. It is a well-established rule in this country that a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity. It is said by Lord STOWELL in his celebrated judgment in the case of Dalrymple v. Dalrymple, 2 Hagg. C. R. 54, that "marriage in its origin is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent, not the child, of civil society. In civil society it becomes a civil contract regulated and prescribed by law and endowed with civil consequences. * * * If it should be said that positive legislation is a substitute for the rule, then this positive legislation, like the rule, should in its terms be restrictive of the natural right and not merely directory as to the mode of its exercise. If it be not restrictive in its terms, then the rule of construction founded on the serious and evil consequences that must generally result from declaring invalid the exercise of the right will apply:" Carmichael v. State, 12 O. St. 553; Duncan v. Duncan, 10 Id. 181. This rule has been adopted and no celebration is required to render a marriage valid in: Ohio.-Supra. Alabama.-Dickerson v. Brown, 49 Ala. 357; Campbell v. Gullatt, 43 Id. 57; State v. Murphy, 6 Id. 765. |