482 FORNSHILL v. MURRAY.

land, during the time of the Commonwealth, marriage was allowed
to be contracted before a justice of the peace, (g) In Maryland
there was a time when marriage might have been legally contracted
before a county court or in presence of a magistrate ;(h) but other
provisions having been made upon the subject by the legislature
of the Province,(i) and by the General Assembly of the State,( j)
it would now seem to be certainly the most correct, if not the only
legal mode of contracting marriage, here as in England, by having
it celebrated in the face of some church, or with the blessing of a
clergyman.

In general it is sufficient to show, that a man and woman have
cohabited as husband and wife; have represented themselves as
such; or have been reputed in the neighbourhood of their resi-
dence to have been legally married, to establish the fact of their
marriage and the legitimacy of their children. The only excep-
tions to this rule are the cases of a prosecution for bigamy, and an
action of criminal conversation, in each of which, proof of an
actual marriage is necessary. For although the action of cn'm. con.
is, in its form, properly a civil action, yet it is in the nature of a
criminal prosecution; and if proof of cohabitation or reputation
were received as alone sufficient evidence of the marriage, it would
place it in the power of the parties to collude together and pass
themselves off as husband and wife occasionally for the express
purpose of profiting by such a suit.(k) But although, in such
cases, the mere general reputation of a marriage may not be deemed
sufficient, yet it appears, that the deliberate admission of the
defendant in an action of crim. con., that the woman was the wife
of the plaintiff; or the confession of the accused of the fact of the
first marriage in a prosecution for bigamy, will even in those cases
be received as sufficient to establish the fact of the marriage.(l)

In England the spiritual court has jurisdiction to inquire into
the validity of a contract of marriage; and may, in certain cases,
determine, that it is wholly void, or decree, that it be dissolved,
and that the parties be divorced; but in all cases not falling
within the jurisdiction of the ecclesiastical courts the parfiament
alone can grant relief.(m) In Maryland, there never having been
an ecclesiastical court, and no power to grant a divorce, by annul-
ar) 4 Bac. Abr. 531, 536.—(h) 1702, ch, 1, s. 4; 1715, ch. 44, s. 25.—(i) 1717,
ch.15.—(j) February 1777, ch. 12.—(k) Moms v. Miller, 4 Burr. 2057; Birt v.
Barlow, Doug. 171.—(I) Stark. Evi. 4 pt. 36 & 1185.—(m) 4 Bac. Abr. 554.