I concur in the conclusion of the court; but I prefer to put my concurrence on the point of the competency of the witness upon other grounds. I may concede that by the common law a marriage consummated by a contract to marry in the future, and subsequent cohabitation of the parties, was valid. But I think this is changed by the Code. By section 2338 it is declared, “ no marriage shall he solemnised xoithout a license.” And the statute directs how the license is to be issued, and by whom. "What does the statute mean by the above prohibitory language ? If a marriage can be valid without a license, what is the force of such a prohibition ? It may be said that it refers to the solemnization of the ceremony. Such a construction is too refined for my appreciation. Besides, it is a sacrifice of the substance to the form — of a principle to a whim. By such a construction, under § 2335 of the Code, a marriage between a white person and a negro can not be solemnised under the forms of the statute; they could, by contracting to marry and then cohabiting together, consummate the relation of husband and wife. For both being free and of proper age, and without any disability, would be competent to contract. It looks too much like founding so sacred a relation and contract on an adulterous connection. The Code no doubt intended to discountenance the tendencies of the age to free-loveism and mormonism. The very difficulty of proving such marriages is an encouragement to the latter, and the ease with which they may be discarded is a stimulus to the former. It is a relation which lies at the foundation of all civilized society and good government, and it should be entered into with due solemnity and with all the sanctions of the law, so far as they are imperative.
*513Again, the legislature has frequently legalized marriages which were valid at common law. — See Clay’s Digest, 874, §§ 9, 10,11; Revised Code, § 2350. This is persuasive to show that the legislative department never intended that a marriage should be valid without a license.
The statutes on this subject I conceive to be a system of law which was intended to regulate the forms necessary to be observed in the rites of matrimony in order to its validity. I do not say that they are all equally essential, but I do say, that in my opinion, a license from a judge of probate is an essential pre-requisite to a valid marriage.
That inconveniences may arise from a rigid adherence to this rule, may be true, but it will cut off a great many irregularities and wrongs which, under the indulgent usages and principles of the ancient common law, will necessarily take place, to the great detriment and shame of families. It will put an end to the private and secret marriages which are so productive of evil, and throw an obstacle in the way to the ruin of the innocent under the promise of marriage, and the idea that a cohabitation, with the promise, makes a good marriage, which is held out to the victims of the vicious and unscrupulous, to accomplish their nefarious purposes, and many other evils which are prevalent under the common law theory of marriage. In my opinion, the loose doctrine of the common law, which was more in harmony with the civilization of the middle or dark ages than with the principles of a new dispensation, should long since have been abandoned and rejected as unsuitable to the progressive refinement and morality of modern civilization. And it is gratifying to me that our statute law is so plain and explicit on this subject. Other provisions of the statute law are equally as demonstrative of this conclusion as those referred to, but I will not extend this argument.