THE

JOURNAL OF JURISPRUDENCE.

IS MARRIAGE A CONTRACT?

BY PATRICK FRASER, Esq., LL.D., ADVOCATE.

ONE cannot read a report of a decision on a question in regard to marriage without coming across judicial dicta to the effect that marriage is "a contract"-" a merely civil contract, and nothing more" and the law of Scotland is represented as if it regarded the relationship in a quite different light from that in which it is regarded among all other Christian nations. Let us then consider whether marriage is " merely a civil contract," and whether the law of Scotland is exceptional in this respect among the codes of civilized peoples.

It certainly is true that marriage has, by several juridical writers, been defined to be a contract of partnership and nothing more; a definition which has been the fruitful source of grave error. It does, no doubt, possess one of the qualities of a contract. It cannot be entered into without the consent of at least two parties; and it is this circumstance-in truth the sole similarity between it and a contract-which has led to the definition that it is simply a contract, like partnership or sale. In regard to all contracts, without exception, the parties can attach any conditions to their agreement which are not against public policy or morals. Contracts may be conditional in regard to their inception; and their duration is dependent upon the agreement of parties. A contract of partnership may be entered into, as commencing if a certain event happens, and it may terminate at any period which may be agreed upon. One of the socii may, according to the agreement, be the manager with more or less powers; or the whole of them may have equal powers. In short, all connected with the entering into the contract, the administration under it, and its terVOL. XX. NO. CCXXIX.-JAN. 1876.

Α

mination may be made matter of mutual stipulation. In regard to marriage, not one of these qualities exists.

It cannot be separated from its legal incidents. When entered into, it is no longer governed by the contract of parties, but by the law of husband and wife, which tramples down all private stipulations. It cannot be entered into upon condition that a certain event shall occur, as that the woman shall prove herself a mother; nor that it shall be dissolvable at pleasure; nor that it shall last for a certain term of years. By no agreement can the dominant power of the husband be handed over to his wife. He cannot be put sub cura uxoris. It is illegal to stipulate that no deed of his shall be valid. without her consent, as no deed of hers is valid by law without his. By no agreement can the husband shake off his obligation to maintain his wife, if she has no means from whence to maintain herself.

The relationship subsisting between them extends its influence to their relatives, and lives even when death has broken the connection. The wife's sister becomes the husband's sister, and he cannot marry her. The husband's brother becomes the wife's brother, and marriage between them is illegal. The death of either does not relieve the survivor from the relationship thus created to the relatives of the other spouse. Marriage makes the husband and wife one flesh. This is the doctrine of the Christian Scriptures, and from them made a part of the law of Christian nations. The idea of contract, as between two persons, is necessarily excluded; and this is the basis on which the impediment to marry, on the ground of affinity, rests. The husband and wife establish not only their own status, but the status of others-the children of the marriage; and this status can never be taken away, nor in the slightest degree infringed, by the will or acts of the parties. children born of the marriage are legitimate, and no agreement between the parents can deprive them, or any one of them, of this status, which they acquire as the issue of a lawful marriage. By no agreement can the parent shake off the duties and obligations of fatherhood.

The

The status resulting from marriage is immediately produced by it, without reference to the place where it may be contracted; and the continuance of the status, as resulting from the compact, is independent of any subsequent change in the domicile of the spouses, so that if at any time it be sought to dissolve the marriage, and to have recourse to a territorial law for that purpose, the operation of that law in noway flows from the contract.

In all other contracts the object is gain or profit, in some form, and any error or fraud as to pecuniary results will be a ground for annulling the transaction. But as regards marriage, the motive for its inception (in the view of the law, whatever it may be in fact) is purely personal-resting on personal preference and attachment, and excluding all reference to considerations of wealth, rank or

fortune, in reference to all which a deceived spouse will in vain complain to a court of justice, that the result did not fulfil the prospects of worldly grandeur that were held out as an allurement to the compact. When a wife obtains a husband, and the rights guaranteed by law to a wife, she obtains all that the law holds she had bargained for. It was not wealth or rank she married, but the man himself; and what would be valid grounds of reduction of any other contract are, as regards marriage, utterly irrelevant.

To call such an institution as this a contract is simply to ignore almost every material element of it, and to overlook its history in all ages and countries. Marriage is a contract, certainly, in so far as it requires the consent of two persons, but it is very much more than this. It is an institution or status. It was instituted by God. It is an institution sanctioned by the law of nations; and nothing can be more inconsistent with some of the plainest texts of Scripture than the representing it to be a contract merely. As an exclusive union for life, it is a cardinal institution of the State. The public have a deep interest in it; and the stability of it, according to the law of nature and reason, is of the last importance to the community. The breach of some of its obligations has in general been considered as a violation of the fundamental laws of the State, and therefore visited with severe penalties; and the Court will not declare a marriage, even though the defender make no appearance, without being itself satisfied from legal evidence that it was entered into.

This, however, is conceded, that though the connection itself be among Christians a religious compact, the modes of entering into it are left to the laws of each Christian country. Though the marriage itself be an institution of God (to use the language of Calvin), the forms of marriage are civil institutions. It is an offence against the Scriptures to violate the compact itself; it is an offence against the law not to comply with the forms of the compact.

There are two definitions of marriage in the Roman law. The first is by Modestinus, who lived in the age of Severus and Caracalla; and the second is in the Institutes of Justinian. The first of these 2 is in the following terms: "Nuptia sunt conjunctio maris et feminæ [et] consortium omnis vita; divini et humani juris communicatio.' The divini et humani juris communicatio here mentioned, referred to the graceful religious ceremonial of the Confarreatio, and all the important consequences of a marriage according to that ancient form.3

1 Gen. ii. 18, 22-24.

2 Dig. 23, 2, 1.

3 "Hæc definitio," says Pothier, "proprie pertinebat ad ea matrimonia quæ Confarreatione aut Coemptione fiebant ; quibus mulier in manum ac familiam viri transibat. Cum enim mulier tali matrimonio eosdem deos Penates sortiretur quos maritus haberet; hinc dicebatur tale matrimonium, Divini juris communicatio. Erat etiam humani juris communicatio, cum mulier omnia sua marito acquireret, et ipsa viro suo inter suos heredes esset."-Pothier, Pandectae Justinianeæ, lib. 23, tit. 2, vol. 2, p. 367.

With the extinction of Paganism and its religious rites, this reference to the divini et humani juris communicatio was dropped; and the definition in the Institutes of Justinian was simply this: 1 Nuptia autem sive matrimonium, est viri et mulieris conjunctio, individuam vitæ consuetudinem continens. Three centuries intervened between the promulgation of the two definitions, and though all reference disappears in the latter to the Dii Penates, there is no suggestion in the definition of Justinian, that marriage was to be classed among contracts. His definition carries the matter out of that category. There was to be unity between husband and wife. Having the same home and the same social position, the wife was to be the husband's companion through life, and to share with him his condition and rank. It was a conjunctio, not of two partners in a societas, but a union of two persons, man and woman, for life, in the relationship of husband and wife, with all the rights, duties and responsibilities of these characters as understood among civilized men. Justinian's definition has been thus amplified and explained: "Legitima et divina conjunctio unius tantum maris et femina; spe procreando, consequendæ et educando sobolis; ad amplificandum Dei gloriam; et ad Ecclesiæ ac Reipublicæ gubernationem; aut saltem libidinis aliqua ex parte refrenandæ causa."2 There is no definition of marriage in the Institutes of Gaius.

The Canonists elevated marriage into a sacrament. It is said by Calvin that this was effected only so late as the popedom of Gregory VII. (Hildebrand), who died in 1085. "Postremo est matrimonium," says Calvin,3 "quod ut a Deo institutum fatentur omnes, ita pro sacramento datum nemo usque ad Gregorii tempora viderat," a statement which has been challenged upon evidence which it is impossible to resist. In the edition of the works of Thomas Aquinas, published in 1873, the subject is discussed exhaustively, with a reference to Patristic authorities, which show that the doctrine was maintained by some of the most eminent of the Fathers, long before the popedom came into existence. It was a doctrine sanctioned by Tertullian and Augustine.*

But at whatever period the doctrine originated, there can be no doubt that it is of high antiquity; and the Council of Trent, in giving it formal expression, stated nothing but the truth when they said it had long been the doctrine of the Church. The canon of

1 Inst. lib. 1, tit. 9, sec. 1.

Who

2 This definition is quoted by the writers on marriage for three centuries. was the author of it I cannot trace. It is generally given with this preface, "Ideo recte ac per omnes causas et circumstantias ita non incommode definiri posse videtur." -Basil, Monneri de Matrimonio, cap. i.

3 Calvin, Inst. 4, 19, 34.

4

See the Somme Théologique de S. Thomas d'Aquin. Par F. Lachat. Paris, 1873. At vol. xv. of the 2nd edition the editor gives citations from the Fathers anterior to the sixth century, proving that the doctrine was understood by them as subsequently formulated by the Council of Trent; and he concludes, "Tenons-nous en à ces citations? Elles suffisent pour montrer l'ignorance ou la mauvaise foi du

Theocrate Genevois."