I dissent. The complaint avers a marriage between plaintiff and defendant, and various acts of defendant constituting causes of divorce. The answer denies the marriage. It was admitted that if there was a marriage a divorce should follow; so that the real contest in the case was as to the existence of the marriage. The court below made and filed its findings, adjudged that the parties were, husband and wife, and decreed a divorce, with one half of the common property, etc. From the judgment the defendant appealed. (Since the trial in the lower court the defendant died, and his executor has been substituted as appellant.) With the sufficiency of the evidence in the case to justify the decision of the court below, we have nothing to do on this appeal.
The full “ findings of fact ” (so called) of the court are as follows:—
“ 1. That for more than six months prior to the commencement of this suit the plaintiff and defendant were residents of the city and county of San Francisco, state of California.
“ 2. That on the twenty-fifth day of August, A. D. 1880, the plaintiff and defendant each signed a certain declaration of marriage in the words and figures following, to wit: —
“'In the city and county of San Francisco, state of California, on the twenty-fifth day of August, A. D. 1880, I, Sarah Althea Hill of the city and county of San Fran*65cisco, state of California, age twenty-seven years, do here, in the presence of Almighty God, take Senator William Sharon, of the state of Nevada, to be my lawful and wedded husband, and do here acknowledge and declare myself to be the wife of Senator William Sharon, of the state of Nevada. Sarah Althea Hill.
“ ‘ August 25, 1880, San Francisco, Cal.
“‘1 agree not to make known the contents of this paper or its existence for two years, unless Mr. Sharon himself see fit to make it known. S. A. Hill.
“‘In the city and county of San Francisco, state of California, on the twenty-fifth day of August, A. D. 1880, I, William Sharon, of the state of Nevada, aged sixty years, do here, in the presence of Almighty God, take Sarah Althea Hill, of the city and county of San Francisco, California, to be my lawful and wedded wife, do here acknowledge myself to be the husband of Sarah Althea Hill. William Sharon, Nevada.
“‘August 25, 1880/
“ Which was the only written declaration, contract, or agreement of marriage ever entered into between said parties, and at the time of signing said declaration, plaintiff and defendant mutually agreed to take each other as, and henceforth to be to each other, husband and wife.
“ 3. That afterwards, and about the-day of September, 1880, the plaintiff and defendant commenced living and cohabiting together in the way usual with married people, although their cohabitation was kept secret, and so continued for the space of more than one year, and down to the twenty-fifth day of November, 1881, and during all of said time the plaintiff and defendant mutually assumed towards each other marital rights, duties, and obligations.
“ 4. That during all the time plaintiff and defendant so lived together, defendant visited her relations with her, escorted her to places of amusement, and introduced *66her to respectable families and" to members of his own family, and wrote to her several letters while absent from her, in which he addressed her as ‘ My dear wife.’
“ 5. From the foregoing facts the court finds that plaintiff and defendant intermarried in August, 1880, and that the allegations of paragraphs 2 and 3 of the complaint as to the fact of marriage are true, except in so far as the declaration therein referred to is alleged to be in compliance with section 75 of the Civil Code of this state.
“ 6. That defendant, on or about December 6, 1881, drove plaintiff from her apartments in his hotel, where she had resided by his directions since September, 1880, and which was the residence selected for her by the defendant, refused to longer live with her or provide for her support, and has not since then lived with or sought to live with or provide for her support, and has not since sought to live with or requested the plaintiff to return or live with him, or provided in any manner for her support.
“7. That no proof was offered of either charge of adultery in the complaint, the same being on the trial deemed withdrawn by mutual consent.
“ 8. That it is not true, as stated in the answer of defendant, that plaintiff has either falsely or fraudulently assumed the name of Sarah Althea Sharon, but on the contrary, that it is her real name; nor is it true that she, or any one, forged the document mentioned in the complaint and heretofore set out; on the contrary, the said document is genuine, and was signed by the plaintiff and defendant at the time it purports to have been signed.
“ 9. That defendant never introduced plaintiff as his wife, nor spoke of her as such in the presence of other persons; that plaintiff never introduced defendant as her husband, nor spoke to nor of him to other persons as her husband; that the parties were never reputed among their mutual friends to be husband and wife, nor was *67there at any time any' mutual, open recognition of such relationship by the parties, nor any public assumption by the parties of the relation of husband and wife.”
It will be observed at once that in these findings there is a confused intermingling of matters of fact and matters of law; that many of them include statements which are either clear conclusions of law, or general inferences and deductions which are difficult of assignment to the category of either law or fact; and that, to a great extent, they are inconsistent with each other. For instance, what is the meaning of that part of the third finding which says that the parties lived together “ in the way usual with married people,” when read in the light of the ninth finding? The court below can hardly be understood as intending to say that the way of life of these parties as described in the ninth finding was “ the way usual with married people.” And if it is to be so understood, is the finding to be taken as one of fact or one of law? Must a conclusion or opinion about a general custom of the country be received as a specific finding of fact? Is the statement in the third finding, that plaintiff and defendant “ assumed toward each other marital rights, duties, and obligations,” to be taken as conclusive if the facts specifically found show the contrary?
It is not difficult, however, to see in these findings what actual facts are found, and what are not found, and to segregate those parts which are merely indefinite generalities, containing conclusions, opinions, and inferences, but not facts. And the case must be decided by the application of the law to the actual facts which appear upon the face of the findings.
These facts are briefly as follows: The parties had the required residence where the suit was brought. On the twenty-fifth day of August, 1880, they executed the written instrument set forth in the second finding. For more than a year from that date they had secret sexual intercourse. During that time plaintiff, by defendant’s *68directions, occupied apartments in • defendant’s hotel. During that time, also, defendant visited plaintiff’s relations with her, escorted her to places of amusement, and introduced her to respectable families and to members of his own family,—all the time introducing her as a single, unmarried woman. (The italicized part of the last sentence is clearly found; because while the fourth finding states that he did introduce her, etc., the ninth finding specifically states that he never introduced her as his wife, or spoke of her as such.) Defendant also, during this time, wrote to plaintiff “several letters,” in which he addressed her as “ My dear wife.” It does not appear affirmatively that he furnished her money or other support than the apartments in the hotel in which she resided. She never during this time took or was known by his name. About December 8, 1881, he “ drove plaintiff from her apartments in his hotel.” It does not appear that at that time she asserted her claim as wife. And during all this time it appears, as stated in the ninth finding, “that defendant never introduced plaintiff as his wife, nor spoke of her as such in the presence of other persons; that plaintiff never introduced defendant as her husband, nor spoke to nor of him to other persons in his presence as her husband; that the parties were never reputed among their mutual friends to be husband and wife, nor was there at any time any mutual, open recognition of such relationship by the parties, nor any public assumption by the parties of the relation of husband and wife.” During the period mentioned their whole lives, conduct, and deportment constituted, except secretly between themselves, a direct and continued repudiation and disavowal of the marital relation. It does not appear if any person ever imputed to either of them that relation (indeed, it does not appear that their marriage was ever suspected); hut if such imputation was ever made, it must, of course, have been met with a denial.
*69The court below came to the conclusion that these facts constituted a valid marriage under the laws of this state; and the question to be determined is, Was that conclusion right or not?
We are aided but little in determining this question by inquiring what the law of England was upon the subject fifty or a hundred years ago. Jurisprudence here is not called upon to stand with drawn sword among the broken arches and prostrate columns of old common law, and defend them from fancied attacks of the legislature. There is no rule here that statutes derogatory of the common law are to be strictly construed. The code itself prescribes the rule upon the subject in the following language: —
“ The rule of the common law that statutes in derogation thereof are to be strictly construed has no application to this code. The code establishes the law of this state respecting the subjects to which it relates, and its provisions are to be liberally construed to effect its objects and to promote justice.” (Giv. Code, sec. 5.)
And the code treats of marriage fully and in great detail, and “establishes the law” upon that subject.
But, as counsel have discussed with great learning and ability the requisites of a valid common-law marriage, we may say, in passing by the subject, that it is by no means clear that at any time in England a present contract followed by nothing more than secret sexual intercourse constituted a perfect marriage at common law. There are innumerable authorities upon the subject, and they greatly conflict. In some eases the law is strained in favor of the legitimacy of children, and of persons criminally charged. But in cases like the one at bar, of direct attempts to establish marriage, the weight of authorities seem to be against the positions taken by respondent. Whoever shall closely study the arguments and authorities presented in the elaborate report of the celebrated case of the Queen v. Millis, 10 Clark & F. 534, *70will see most cogent reasons for agreeing with the unanimous conclusion to which the judges came in that case. And that conclusion was to this effect: that with respect to the requisites of a valid marriage, the common law followed the ecclesiastical law, —not the general canon law of Europe, but the “king’s ecclesiastical law,” as established and administered in England; that whatever the latter provided the former required; and that at no time did the ecclesiastical law hold a marriage valid unless performed in the presence of an ordained minister. Lord Chief Justice Tindal, in delivering the opinion, says: “And with respect to the decisions of the courts of law, and the other common-law authorities, if no case can he referred to directly and distinctly laying it down as law in so many words, that a contract per verba de preesenti alone, and without the intervention of a minister in orders, is not -sufficient to create a valid and complete marriage, yet such conclusion is necessary from many of the decided cases, and is inconsistent with none; nor in fact could the difficulty to be determined in any of the cases ever have existed, except upon the supposition that some religious ceremony was necessary to the contract; thus leading to the conclusion above laid down, that by the law of England the contract per verba de preesenti alone did not constitute a full and complete marriage.”
There are numerous authorities to the same effect; although there are others which hold, or seem to hold, differently. But the Queen v. Millis presents the fullest discussion of the question which we have been able to find. It is said that the common law looked upon marriage as a civil rather than a religious institution. That may be true; but as it always followed the ecclesiastical law, and as the latter always required a celebration in the face of the church, thus, as a matter of fact, the common law always did employ a machinery which worked the publicity of marriages. Whether, if the ecclesiastical
*71rule had not been adopted, some other method of publicity would have grown up with the common law, cannot be known but may be presumed. And it is rare, indeed, to find a case at common law where any respectable court has held a marriage entirely secret to be valid. In the Queen v. Millis, the attorney-general and the solicitor-general were contending for the validity of the marriage there in question, where the ceremony was performed by a Presbyterian preacher, and not by a minister of the established church; and in nearly every authority cited by them there had been an agreement of marriage before witnesses, and generally some form of religious ceremony. And it must be remembered that the “ clandestine marriage ” referred to in the authorities was by no means a secret marriage; it was a marriage entered into before witnesses, usually with an irregular ceremony,—without the publication of banns, and lacking other requisites of the ecclesiastical law. Even the Fleet and Gretna Green marriages were not secret.
But if it were admitted that the common law was what the counsel for respondent claim it to have been, what consequences important in the decision of the case at bar would flow from such admission? Take, for instance, the doctrine of the case of Dalrymple v. Dalrymple, so much relied on by respondent (4 Eng. Ece. 485), which case, however, was held in Queen v. Millis to be only declaratory of the loose Scotch law of marriage, and to be incorrect so far as it undertook to state the law of England. The doctrine of the Dalrymple case is that present mutual consent to be married does, of itself, at common law, constitute marriage, whether followed by any other act or not. Now, of what value is such an authority here, even if it be taken as a correct statement of the common law, in face of an express provision (as we shall see) of the statute law of California that “consent alone will not constitute marriage.”
Let us see, then, what the law of marriage in this state *72is. It may be first remarked, however, that under all ■the authorities, and from the very nature of the relation, marriage is something more than a contract. It is a civil condition. Bishop defines it as “the civil status of one man and one woman united in law for life for the discharge to each other, and the community, of the duties legally incumbent on those whose association is founded on the distinction of sex.” (1 Bishop on Marriage and Divorce, sec. 3.) Husband and wife owe a duty to society, as well as to each other. Except as to property they cannot, either before or after marriage, settle or merge, or modify, their rights or obligations. Neither can end the relation by notice; and a disregard of marriage obligations by one does not give a right of action for damages for breach of contract to the other. Their rights and obligations come, not from any contract between themselves, but from the law. They are changed by a change of the law, or by a change of residence to a place where the law is different. The divorce laws which happened to exist at the time .the relation is entered into do not form “part of the contract.” If the legislature should at its next session repeal all laws granting divorces, such repeal would not affect the legal status of married people in the least. They may be said to enter into the marriage condition by contract; but after that the contract vanishes.
Now, marriage is defined in section 55 of the Civil Code of this state; and by that section, and not by the Scotch or the Irish law, or the canon law of Europe, or the common law of England (whatever it may be), must the question here presented be determined. That section,' 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 solemniza*73tion, or by a mutual assumption of marital rights, duties, or obligations.”
Here then, it is clearly, and beyond all controversy, provided, deliberately and expressly, that consent alone is not sufficient. The whole doctrine of a contract per verba de prsesenti or per verba de futuro cum copula being a sufficient-marriage is obliterated. In order to “constitute marriage,” not as evidence merely, but as an essential part of the thing itself, the consent must be followed either by solemnization, or by the “assumption” of the marriage relation. And as in the case at bar there was no solemnization, the only question is, Was there an “assumption of marital rights> duties, or obligations,” within the meaning of the language of the code?
The words of the language to be construed do not appear to have any well-defined “technical” meaning. Neither have they “peculiar” meaning in law. They do not occur in the statute law of any other state or country,—at least, we have not been referred to any which contain them. They are, therefore, to be construed, as stated in section 13 of the Civil Code, “according to the context and the approved use of language.” Now we venture to say that neither in the works of any standard author, nor in the common speech of intelligent people, can any instance be found where the word “assumption,” or “ assume,” has been used in any sense consistent with— or in any sense other than repugnant to—the idea of concealment, denial, or repudiation. A man may assume to be that which he is not; but how can he, with any “ approved use of language” be said to assume to be that which he denies himself to be? The etymological meaning of "assume” is to “take on.” Among the definitions given by Webster are “to pretend to possess,” “to take in appearance”; and, as synonyms, “arrogate,” "usurp.” Stormouth also gives the definition, “to pretend to possess” ; and as synonyms, “affect,” “pretend,” “presume.” Now, could any of these meanings be rightfully applied *74to relations of men and women who sedulously, and ex industria, and in accordance with a prior contract, conceal those relations, and if charged with holding them, deny and repudiate their existence?
Moreover, in order to assume the marriage relation, there must be an assumption of that which is peculiar to that relation,—that which distinguishes it from all other relations. But mere secret sexual intercourse is not peculiar to marriage, and does not distinguish it from illicit sexual commerce. To call a horse “ an animal with four legs” is to give no definition of a horse; ánd so to describe marriage, or the assumption of its rights, duties, and obligations, merely as secret copulation is to give no definition of marriage. How, therefore, can logic draw the conclusions that by the assumption of marital rights, duties, or obligations the legislature meant only the secret act referred to ?
Again, what plainer or more obvious construction can be put upon the language in question than to say that the legislature meant by it that kind of conduct which generally, and we might say universally, characterizes married people who lime assumed marital rights, duties, and obligations? The legislature must be presumed to have had that common knowledge which all people have of the familiar and habitual social customs of the country with respect to the marriage relation, an d of the usual deportment of persons who have assumed that relation. Now, can it be pretended that married people usually (or at all) refuse to recognize each other as husband and wife in the presence of others; that they never speak of each other as husband and wife; that they never so live together that their residence, however humble,—though it be but a room in a garret,—is the recognized home of a family, with its usual relations and associations; that they so carefully guard their conduct that they are never reputed or even suspected among their acquaintances and friends to be husband and wife; *75that they never indulge in any deportment whatever that would intimate in the slightest way to any human being, except themselves, that they were married? It seems difficult for any human understanding, not too much swayed by artificial distinctions and attentuated niceties, to receive such conduct as an “assumption of marital rights, duties, or obligations.” What marital rights has a woman “assumed” who could not even protect herself against apparent shame by asserting the honorable name of wife? What marital obligation of protection can a man fulfill toward a woman whose wife-hood he publicly repudiates ? And how can society enforce its rights in a relation of which it can have no knowledge, and of the existence of which it has no grounds of suspicion ? And what of the children, if any, of such a marriage ? Is there to be no one whom they can call “ father” or “mother” ? And what possible protection could there be against fraudulent pretenses of marriages, — made, perhaps, for the first time after the deaths of alleged husbands or wives ?
It argued that but little meaning can be attached to the language of the code because the word “open” is not used to qualify the word “assumption.” It is possible that to some mental visions the adjective referred to might have made the meaning more satisfactory; just as some minds, perhaps, could not entirely grasp the idea conveyed by the word “ball,” or “globe,” unless it were accompanied by the word “round.” But in either case the use of the adjective would he wholly superfluous,— fevens ligna in sylva.
When people assume the marital relation, the assumption becomes necessarily open. There is no need to have it proclaimed by the town crier, or placarded on the walls of the court-house. If they assume the marital relation, —and don’t deny it,—no matter how quietly and modestly they may conduct themselves, and no matter how small may be their circle of friends, or how humble their *76surroundings, the fact of the marriage will inevitably disclose itself.
Some confusion is sought to be thrown into the problem by the endeavor to give a peculiar and limited meaning to the word “consummation,” as used in section 57 of the code. That section is as follows:—
“Consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.”
And it is argued that “consummation” means simply sexual intercourse; and that, therefore, sexual intercourse, following consent, is all that the code requires to constitute a valid marriage. No doubt in some of the cases which hold that a contract per verba de preesenti or per verba de futuro cum subsequente copula constitutes a marriage, the copula is sometimes spoken of as the consummation. But the essential meaning of consummation is “the act of carrying to the utmost extent or degree; completion; termination; close; perfection.” (Webster.) And its particular meaning, when used in connection with other language, must be gathered from the context. Now section 57 almost immediately follows section 55; and both sections are about the same subject. And as section 55 provides what must follow consent in order to make the marriage valid,—in order to give it “completion” and “perfection,”—no reasonable construction can be given to the two sections together, other than that “consummation” in the latter refers to the “completion,”. the “ perfection ” provided in the former; that is, the' “assumption of marital rights, duties, or obligations.” So that the meaning of these words last quoted is the sole question in this case, no matter from what direction we approach it.
It is impossible, within reasonable limits, to notice the various points made by counsel in the able and learned arguments, both oral and written, which they have pre*77sented to the court. For instance, it is argued very forcibly that secret marriages, or secret attempts at marriages, are against the policy of the law; and that, therefore, the very contract relied on in this case as constituting the marriage is, itself, absolutely void because it enjoins secrecy. Section 75 of the code provides that persons married without solemnization “ must jointly make a declaration of marriage”; and section 77 provides that “declarations of marriage must be acknowledged and recorded in like manner as grants of real property.” It is true that a previous section of the same article provides that “ non-compliance with its provisions does not invalidate any lawful marriage”; but, considering all the sections together, it is difficult to resist the conclusion that the policy and intent of the code with respect to unsolemnized marriages is, that they must either be made matters of record, or that they must be accompanied by such circumstances—such acts and conduct of the parties—as will approximate that publicity of which a record notice is the most complete evidence; and that, therefore, a contract to enter upon the marriage relation which provides for secrecy is void. For if the relation between these parties was marriage, then all marriages may be of that character; and society might be undermined everywhere with such secret relations without there being one recognized wife or family home in all the land. And it must be remembered that the legislature adopted the code with the knowledge that this court in Graham v. Bennett, 2 Cal. 506, speaking of marriage, used this language: “If it takes place between parties able to contract, an open avowal of the intention, and an assumption of the relative duties which it imposes on each other, is sufficient to render it valid and binding.” But while we are strongly of the impression that the contract relied on in this case is void on account of its clause of secrecy, we are not called upon to hold that if, notwithstanding said agreement for secrecy, the *78parties had assumed the marital relation in the way hereinbefore indicated, there still would have been no marriage.
My conclusion is, that the facts found in this case did not, under the law of this state, constitute marriage; and that the judgment should be reversed, with directions to the superior court to enter judgment for defendant.
With respect to the appeal from the orders allowing alimony and counsel fees, as in my opinion there was no marriage, of course in my judgment those orders should be reversed.
Rehearing denied.