that Council, given forth in its twenty-fourth session, in November 1563, is in the following terms: "Si quis dixerit matrimonium non esse verè et propriè unum ex septem legis Evangelica sacramentis à Christo Domino institutum, sed ab hominibus in ecclesia inventum, neque gratiam conferre, anathema sit."

Such was the law as to the nature of marriage in all Christian nations at the time of the Reformation. The doctrine that marriage was a sacrament was then rejected by Protestants; and Calvin, in his Institutes, has a chapter assigning the reasons for this, the validity of which all Protestant peoples have recognized. But he does not go to the opposite extreme of reducing marriage to the level of a purely civil contract; he calls it an "institution of God," and this form of language was adopted by the other great Protestant Reformers. It was reserved to a later age, for a number of writers of the school of Grotius (though he himself nowhere formally so states it), to designate marriage simply as a contract of partnership. This was a revolt against the sacramental theory of Roman Catholicism, and the religious or reverend theory of the Protestant theology. Puffendorf, Hume, Heineccius and Kant are the representatives of this school, and carried out their doctrine to its legitimate results. According to them, it was a partnership the object of which was the begetting of children and nothing more; and this object failing, the partnership could be dissolved. Puffendorf,' after laying it down that all persons of both sexes are naturally equal, defines marriage as a covenant between a man and a woman "for their mutual assistance in serving posterity." So much is marriage a mere matter of contract that, if the covenant were “simple, not joined with any agreement about constant cohabitation, but respecting barely the procreation of children," it would give neither spouse any right over the other, except to exact "the promised assistance with regard to posterity," and accordingly the woman may make it an express condition of the covenant that she shall have the government of the children; and to this also subscribes Heineccius in his Elements of Natural Law; and so do others of the same school, such as Thomasius, Wolff and Kant.2

Hume states the matter thus:-"As marriage is an engagement entered into by mutual consent, and has for its end the propagation of the species, it is evident that it must be susceptible of all the variety of conditions which consent establishes, provided they be not contrary to this end. A man in conjoining himself to a woman is bound to her according to the terms of his engagement;" and he appears to mention with satisfaction that "in Tonquin it is usual for the sailors, when the ships come into harbour, to marry for the season; and, notwithstanding this precarious engagement, they are

1 Puffendorf, vi. 1, 9.

Heinec. Elementa. Jur. Nat. et Gen. 1, 14, 1; Thomasius, Inst. Jurispr. Divina, I. 1, and III. 2. Wolff, Inst. Jur. Nat. et Gentium, sec. 836-856. Kant, Metaphysiche Anfangs-gründe der Rechtslehre, sec. 24-27.

1

assured, it is said, of the strictest fidelity to their bed, as well as in the whole arrangement of their affairs from. these temporary spouses." It would thus follow that any conditions might be attached to marriage which the caprice or the passions of the parties might dictate; and if the propagation of the species be the sole end of marriage, it is not clear why that formality should be gone through, seeing that so very many of the species are, and that all might be, propagated without it. It was only logical for this school of thinkers to state that marriage is susceptible of all the variety of conditions which consent establishes. Puffendorf says 2 that it might be a condition of the marriage that it should be dissolved by mutual consent; and all of them must necessarily hold this to be within the power of the contractors, as the consequence of their doctrine. It may be expressed, according to Puffendorf; it is implied, according to Hume. Quis crederet virum tantæ conditionis talibus ineptiis delectari?

A doctrine such as this, so inconsistent with the Christian Scriptures, and so at variance with the practice of mankind, was certain to be rejected when fairly submitted to the consideration of reasonable minds; and the rejection and denunciation of it have been as emphatic as those which have overtaken other errors of the same school. The condemnation has come from the jurists of all countries.

In the case of Dalrymple v. Dalrymple Lord Stowell thus expressed himself:-" Marriage in its origin is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent, not the child of civil society. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil. consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanction of religion superadded. It then becomes a religious as well as a natural and civil contract; for it is a great mistake to suppose that, because it is the one, therefore it may not likewise be the other. Heaven itself is made a party to the contract, and the consent of the individuals pledged to each other is ratified and consecrated by a vow to God." The same learned judge, in the subsequent case of Lindo v. Belisario, stated that, "according to juster notions of the nature of the marriage contract, it is not merely either a civil or religious contract; and, at the present time it is not to be considered as originally and simply one or the other."

1 Hume's Essays, vol. i. p. 182.

2 Puffendorf, 6, 1, 20.

This is paraphrased from Paley, who states it more simply thus: "The vow by which married persons usually engage their fidelity is witnessed before God,' and accompanied with circumstances of solemnity and religion, which approach to the nature of an oath."--Mor. and Pol. Phil. cap. 4.

41 Hag. Con. R. p. 230.

Lord Penzance had to express an opinion upon the matter in dealing with a Mormon marriage:-"Marriage has been well said to be something more than a contract, either religious or civil-to be an Institution. It creates mutual rights and obligations, as all contracts do, but beyond that, it confers a status. The position or status of husband' and wife' is a recognized one throughout Christendom; the laws of all Christian nations throw about that status a variety of legal incidents, during the lives of the parties, and induce definite rights upon their offspring. What, then, is the nature of this institution, as understood in Christendom? Its incidents vary in different countries, but what are its essential ele ments and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life, of one man and one woman, to the exclusion of all others."1

The subject has engrossed the attention of the judges and juridical writers of America. Story deals with it as follows:-" I have throughout," he says, "treated marriage as a contract in the common sense of the word, because this is the light in which it is ordinarily viewed by jurists, domestic as well as foreign. But it appears to me to be something more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties; and in this view it has some peculiarities in its nature, character, operation and extent of obligation, different from what belong to ordinary contracts."2 Again he says:-"Marriage is not treated as a mere contract between the parties, subject, as to its continuance, dissolution and effects, to their mere pleasure and intentions. But it is treated as a civil institution, the most interesting and important in its nature of any in society."3

Chief-Justice Robertson, of Kentucky, thus expressed himself:"Marriage, though in one sense a contract-because, being both stipulatory and consensual, it cannot be valid without the spontaneous concurrence of two competent minds-is, nevertheless, sui generis, and, unlike ordinary or commercial contracts, is publici juris; because it establishes fundamental and most important domestic relations. And therefore, as every well-organized society is essentially interested in the existence and harmony and decorum of all its social relations, marriage, the most elementary and useful of them all, is regulated and controlled by the sovereign power of the State, and cannot, like mere contracts, be dissolved by the mutual consent only of contracting parties, but may be abrogated by the sovereign will, either with or without the consent of both parties, whenever the public good, or justice to both or either of 1 Hyde v. Hyde, 1 L. R. Pro. and Div. 133. 2 Story, Conf. Laws, sec. 108, note.

3 Ibid., sec. 200, note.

the parties, will be thereby subserved. Such a remedial and conservative power is inherent in every independent nation, and cannot be surrendered, or subjected to political constraint or foreign control, consistently with the public welfare. And therefore marriage, being much more than a contract, and depending essentially on the sovereign will, is not, as we presume, embraced by the constitutional interdiction of legislative acts impairing the obligation of contracts. The obligation is created by the public law, subject to the public will, and not to that of the parties." "1

So, in the Supreme Court of Tennessee, it was remarked, "By the English canon and ecclesiastical law, this union of marriage is of a nature so widely differing from ordinary contracts; creating disabilities, and conferring privileges, between husband and wife; producing interests, attachments, and feelings, partly from necessity, but mainly from a principle in our nature; which together form the strongest ligament in human society, without which, perhaps, it could not exist in a civilized state; it is a connection of such a deep-toned and solemn character that society has even more interest in preserving it than the parties themselves. So it has been deemed in all societies, civilized and not corrupt, in all ages." And in a Delaware case the Court said:-" The marriage contract is one of a peculiar character, and subject to peculiar principles. It may be entered into by persons who are not capable of forming any other lawful contract; it can be violated and annulled by law, which no other contract can; it cannot be determined by the will of the parties, as any other contract may be; and its rights and obligations are derived rather from the law relating to it, than from the contract itself."3

"2

In like manner Wharton, in his treatise on the Conflict of Laws, emphatically states that "marriage is not merely a contract, but an international institution of Christendom," and that its peculiar features are not derived from the legislation of particular states. They existed wherever Christianity has been recognized, prior to any territorial legislation. It is true that when legislation takes place, each state, in furtherance of what it considers its own policy, has introduced certain peculiarities into what may be called the processual or formal features of matrimony. Feudal sovereigns have reserved to themselves the guardianship of orphans within their realms, and have refused to sanction the marriage of such orphans without their consent. Old states, threatened with pauperism, have endeavoured to check marriage, while new states, with abundant territory, have given it every possible facility. Nations deriving their jurisprudence from the Roman law have attached peculiar consequence to the consent of parents; nations in which lower views of parental right prevail, and whose interest

1 Maguire v. Maguire, 7 Dana, 181, 183.

Dickson v. Dickson, 1 Yerg. 110, 112, opinion by Catron, J. 3 Townsend v. Griffin, 4 Harring. Del. 440, 442.

it is to fill their sparsely-settled domain with young independent families, have dispensed with such consent. In countries where the restraints on matrimony have been onerous, there has been an attempt to alleviate the evils which have followed, by the doctrine that children born out of wedlock are legitimated by the subsequent marriage of their parents; in other countries, where marriage is subject to fewer restraints, such subsequent legitimation is unknown. These variations, however, are the peculiarities of local law, and, as a general rule, have no extra-territorial effect. But, on the other hand, there are certain requisites of marriage which are recognized in all parts of Christendom, and which may be viewed as part of its common law. These requisites are, 1st, Exclusiveness as to all others, no conjugal unions except such as are based on such exclusiveness for life being recognized as marriages; 2d, Conjugal capacity, under which head may be included freedom from the incapacities of a prior marriage or of near relationship; and, 3d, Consent and cohabitation. If it be established, first, that these three are the requisites, and the sole requisites of marriage, as originally established by the common law of Christendom, and secondly, that though particular states have, from time to time, added new qualifications, there has been no such general and uniform modification as to create an international alteration of the old law, then this old law remains in force in countries where there are no positive repugnant statutes. And clearly will this be the case with the United States, if it be shown, as it will be hereafter, that this old law was that, and that alone, which the settlers brought with them as the basis of their social institutions."1

Finally (as regards American lawyers), Mr. Bishop, in his Commentaries on the Law of Marriage, deals with the subject as follows:-" In England and Continental Europe little inconvenience can result from designating a perfected marriage by the word 'contract' rather than status; for the jurists of those countries are not troubled with many of the peculiar questions of constitutional law and of the conflict of laws relating to divorce, which, arising out of the constitutions of the United States and of the several States of this Union, have proved more embarrassing than almost any other to our Courts, and have led to irreconcilable diversities of decision. But no one can read the conflicting decisions of the American tribunals on this subject without perceiving that the chief embarrassment has arisen from the tendency to apply the rules of governing contracts to the status of marriage, owing to the fact of marriage having been so commonly defined by courts and jurists as being a contract. And no learned inquirer can fail to perceive that those judges who have looked most completely through and beyond the written definitions of marriage to the thing itself, have drawn rules best calculated to harmonize conflicting interests, preserve the rights of each individual State without interfering with those of other

1 Wharton, Confl. of Laws, sec. 127.