I have concurred in the prevailing opinion, and I add:—
The main question is a pure question of law. Do these facts constitute marriage?
Persons capable of marriage consented to present mar*50riage. Thereafter they cohabited in the way usual with married persons for more than one year, during which time they mutually assumed towards each other marital rights, duties, and obligations. The cohabitation and supposed marriage, was, however, kept a secret, pursuant to an agreement in writing made at the time of the mutual consent to present marriage.
But for the secrecy there would be no doubt as to the validity of the marriage. Does that render the marriage void?
This depends entirely upon our statute. Section 55, Civil Code, is as follows:—
“ Sec. 55. Marriage is a personal relation arising out of a civil contract to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations.”
It is claimed that the words “the mutual assumption of marital rights, duties, or obligations ” implies the public assumption of the relation. Such is certainly not the natural and obvious meaning of the language. That would naturally, and in the absence of any preconceived idea upon the subject, be held to mean only that the parties must not only agree to present marriage but must by some act or deed take upon themselves the duties and rights of the relation. The language is exactly adapted to express the necessity of actually taking upon themselves contract obligations. However it may be looked upon from other points of view, in law marriage i's regarded simply as a relation arising from civil contract. It is so declared in this very section. Perhaps we should be able to appreciate the force of the language better if we substitute for marriage some other well-known contract relation. For instance, “Partnership is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent *51alone will not constitute partnership; it must be followed by a mutual assumption of partnership rights, duties, or obligations.”
Had there been a section of the code to this effect, would any one doubt its meaning? It would mean simply that an agreement to be partners was not sufficient to constitute partnership until it was followed by the actual commencement of partnership business.
It seems to me this illustration shows that the language of the section is exactly adapted to the purpose intended, and that, as I have said, it is only when read with the preconceived idea that it ought to mean something else that it seems to be inexact or ambiguous.
And it may be added that in the case supposed, there would be nothing inconsistent with the assumption of partnership rights, duties, or obligations, inter sese, if the relation were kept secret or even denied. A secret partner assumes the duties and obligations of the relation. The only trouble is in the matter of proof. There is no necessary relation between the assumption of contract rights and duties, and publicity.
This construction will be understood when we remember there were two species of marriage at common law, by mere act of the parties, per verba de presentí merely, or per verba de futuro cum, copula, and there were those who contended that marriage per verba de prsesenti must also be cum copula subsequente. The legislature plainly intended to adopt the view that the agreement to present marriage must be followed by consummation, which, however, might consist of any conduct which would show that the parties had actually entered upon the married state.
This is made still more obvious by section 57 of the Civil Code. The word “consummation” was avoided in section 55, because it has come to be a euphemism for the more indelicate word copula, and thereby has acquired a more narrow meaning than was intended.
*52Therefore the phrase which only indicates the assumption of the contract relation was used. But in section 57 the word “consummation” is substituted for the phrase. It cannot mislead here, for it has been defined, but it shows that the mutual assumption of marital rights, duties, or obligations is of the nature of consummation,—something in the nature of part performance of the consent to present marriage; though that is not • limited to the copula.
“Sec. 57. Consent and consummation may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.”
Subsequent consummation as well as consent may be manifested in any form. What can this mean except exactly what I have claimed for it? And if in any form, why not by secret cohabitation, where the husband claims the right, believing himself a husband, and the wife submits because she believes herself a wife?
It is contended that the use of the word “manifested” in this section indicates that it must be made known,— that it cannot be secret.
But this is a total misapprehension of the office of the section. It is simply and only to provide a mode of proving a private marriage, and the word “manifested” has reference to proof. To illustrate: Suppose in this case the plaintiff had testified in her own behalf in general words: “Defendant and myself each agreed to present marriage, and we subsequently consummated it.” It would then be natural to ask, “You say the defendant consented to marriage with you,—how did he manifest that consent; what did he say, etc.?” This shows what to my mind is the plain, obvious, and only meaning of the word in this section. It means manifested for the purposes of proof, whenever the fact may come in issue. A private marriage must still be capable of proof, otherwise it is practically no marriage. In fact, the provisions of our statute with reference to solemnization are *53mainly, if not entirely, to provide means of proof, and not for the purpose of publicity.
If it had been intended to require publicity, the addition of one word would have removed all doubt. On the contrary, the language is exactly adapted to express the mere assumption of contract obligations.
It seems to me it is rather late in the Christian era to claim that a secret marriage, or a contemporaneous agreement to keep the marriage secret, is opposed to good morals or public policy in any sense, which will render the marriage, otherwise contracted according to the law of the land, void.
By the Justinian code in the sixth century, it was expressly provided that the mere consent of the parties should be sufficient to constitute marriage, except as to persons of rank. Such marriages have been held valid throughout Christendom ever since, with some few exceptions made by positive law, within the past two centuries. It goes without saying that there have always been secret marriages. They have always been condemned by the church and by the courts. And yet they have always been held legal. It is, I think, safe to say that there is not a case in any country in Christendom in which a marriage has been held void merely because it was kept a secret, or because of a contemporaneous agreement of secrecy. And no law-writer has ever suggested this as a possible cause of invalidity.
Our ancestors seem to have realized the strength of the passion they were attempting to regulate. They knew there would always be irregular unions, and they evidently thought it in the interest of good morals and good public policy to bring as many of these relations as possible within the regulative force of law, and the courts have always inclined to the validity of marriages in favor of the legitimacy of offspring.
A secret marriage is not necessarily clandestine or irregular. The most regular marriage and one duly *54solemnized may be secret. Under our statute, consent and consummation are in all respects the equivalent of solemnization. The law requires a solemnized marriage to be recorded, but if not recorded, and if in fact kept secret, no one would doubt its validity. The issue of the license does not prove a marriage, and of course cannot give it publicity. Many licenses issue where no marriage follows.
Repute,—the holding out to the world,—living in the the face of their neighbors as husband and wife, is evidence of marriage without proof of solemnization. It appears to me that much confusion arises right here. It is tacitly, perhaps unconsciously, assumed that the marriage thus proved is marriage by mere consent; and then the proposition is reversed, and it is claimed that marriage by consent and consummation can be proved only by repute; that it is not marriage unless followed by publicity.
This idea, although not expressed, is, I think, implicit in all the arguments in favor of the necessity of publicity. But in the first place, the marriage presumed from repute may as well be one by solemnization as by the mere act of the parties. In the next place, our statute makes a marriage by consent with consummation the equivalent in all respects with marriage by solemnization. And finally, this view is expressly and ex industria negatived by our statute, which provides that consent and consummation may be manifested in any form. It need not be by repute, nor by the copula, nor by support and cohabitation, nor by the recognition of children as legitimate, but it may be by any of these modes, or by any other act in addition to mere consent which manifests an actual entering upon the relation.
And I think it will be found that all the cases which seem to insist upon some degree of publicity are cases of presumed marriages without direct proof. It is admitted that to establish marriage in that mode, publicity to some *55extent is required. But the exigency of appellant’s argument is a case where an actual marriage being proven it was held invalid because kept secret.
But we are not without authority upon the effect of secrecy,— the marriage being otherwise valid. Dalrymple v. Dalrymple, 4 Eng. Ecc. 485, was decided by Lord Stowell, perhaps the very highest authority upon questions of this character. The case arose under the Scotch law, which is on this point exactly the law of California; that is, consent and consummation were sufficient without solemnization. The parties so married, but at the time of the consent the wife also stipulated in writing to keep the marriage secret. The marriage was in fact kept secret for nearly four years, when the husband married again. The second marriage was held void. Lord Stowell remarks as to the agreement of secrecy: —
“ An . engagement of secrecy is perfectly consistent with the most valid and even with the most regular marriages. It frequently exists even in them from prudential reasons; from the same motive it almost always does in private or clandestine marriages. It is only an evidence against the existence of a marriage, when no such prudential reasons can be assigned for it, and where every thing, arising from the very nature of the marriage, calls for its publication.”
This last suggestion, it seems to me, contains all there is in the matter of secrecy. It is merely an important fact in the proof of the marriage. This case strikingly illustrates this: The plaintiff by this agreement certainly placed herself in a most trying situation. Had the secret cohabitation been discovered, her mouth would have been hermetically sealed for at least twelve calendar months to any explanation of the most compromising circumstance. She might have become a mother, and have been for the same period unable to deny the bastardy of her child and her own disgrace. And had either event happened, her silence would have rendered *56it extremely difficult ever after to establish her wifehood. These undeniable difficulties in her case seem not only to create a prejudice against the case, but against the law under which the validity of the marriage is claimed, and have constituted, in my opinion, no small part of the force of appellant's argument here. These facts were entitled to great weight in the court below, and no doubt received due consideration, and .yet the plaintiff was found to be very wife.
The evidence is not before us, only the facts as found constituting consent and consummation. We can imagine that one might make even this tremendous sacrifice to compass a desirable marriage, and that she might confide in her husband to protect her reputation. At any rate, it is not for us on this appeal to estimate probabilities, but to pronounce the judgment of the law upon admitted facts.