[657] Of course the statute of Porto Rico must be regarded as preventing, not abolishing, the common-law marriage.
[658] Quoted by COOK, "The Mar. Cel. in the U. S.," _Atlantic_, LXI, 526. On the frauds perpetrated under the guise of the common-law marriage see also the opinion of Judge Pryor of New York: quoted by RICHBERG, _Incongruities of the Divorce Laws_, 61, 62. "It is singular," said Chief Justice Gilchrist in 1848, "that the most important of all human contracts, on which the rights and duties of the whole community depend, requires less formality for its validity than the conveyance of an acre of land, a policy of insurance, or the agreements which the statute of frauds requires should be in writing."--Dumbarton _v._ Franklin, 19 _N. H._, 264, 265.
[659] Except, perhaps, in practically getting rid of the subtle doctrine of marriage _per verba de futuro cum copula_: see the decision in Starr _v._ Peck (1841), 1 HILL, _N. Y._, 270; EWELL, _Cases_, 403. _Cf._ Cheney _v._ Arnold (1857), 15 _N. Y._, 345; EWELL, 407-13; this being followed in Duncan _v._ Duncan, 10 _Ohio_, 181; but discarded in Port _v._ Port, 70 _Ill._, 484; and Peck _v._ Peck, 12 _R. I._, 484; 34 _Am. R._, 702. _Cf._ BISHOP, _Mar., Div., and Sep._, I, secs. 353-77, pp. 147-62; KENT, _Commentaries_, II, sec. 87 ff., pp. 119 ff.
[660] COOK, "The Mar. Cel. in the U. S.," _Atlantic_, LXI, 528.
_b_) _Resulting character of matrimonial legislation._--The absurd and demoralizing conflict between common-law validity and statutory legality ought first to be abolished, because in large measure it hinders, even frustrates, the effort to develop a thorough and uniform system of matrimonial administration in the United States. This once effected, there will remain plenty of hard work to do. If we consider the details of our legislation, as already analyzed in the sixteenth chapter, we perceive in nearly every department urgent need of reform, often of radical innovation. Almost everywhere there is a want of clearness, certainty, and simplicity; and this defect is all the more harmful because of the lack of uniformity among the different states. Diversity, even conflict, in every branch of state legislation is a burdensome incident of the federal system; and in no branch is the evil more formidable than in the field of marriage and divorce. As hereafter suggested, we need not despair of eventually overcoming it; but from the very nature of the case it may be many years before an effective remedy can generally be applied. In the meantime it is all the more necessary that the laws of each individual state should be made as clear, simple, and efficient as possible, and that every opportunity should be seized to prepare the way for a common matrimonial code for the whole country.