ge as the essential fact of the
relationship. It was an old rule even under the Catholic Church
that marriage may be presumed from cohabitation (see, e.g.,
Zacchia, _Questionum Medico-legalium Opus_, edition of 1688, vol.
iii, p. 234). Even in England cohabitation is already one of the
presumptions in favor of the existence of marriage (though not
necessarily by itself regarded as sufficient), provided the woman
is of unblemished character, and does not appear to be a common
prostitute (Nevill Geary, _The Law of Marriage_, Ch. III). If,
however, according to Lord Watson's judicial statement in the
Dysart Peerage case, a man takes his mistress to a hotel or goes
with her to a baby-linen shop and speaks of her as his wife, it
is to be presumed that he is acting for the sake of decency, and
this furnishes no evidence of marriage. In Scotland the
presumption of marriage arises on much slighter grounds than in
England. This may be connected with the ancient and deep-rooted
custom in Scotland of marriage by exchange of consent (Geary, op.
cit. Ch. XVIII; cf., Howard, _Matrimonial Institutions_, vol. i,
p. 316).

In the Bredalbane case (Campbell _v._ Campbell, 1867), which was
of great importance because it involved the succession to the
vast estates of the Marquis of Bredalbane, the House of Lords
decided than even an adulterous connection may, on ceasing to be
adulterous, become matrimonial by the simple consent of the
parties, as evidenced by habit and repute, without any need for
the matrimonial character of the connection to be indicated by
any public act, nor any necessity to prove the specific period
when the consent was interchanged. This decision has been
confirmed in the Dysart 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
con