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dience. . The Napoleon codea has adopted precisely ilio sáme extent of prohibition, as forming the impassable ! between lawful and incestous marriages; and though :1.c prohibition goes deeper into the collateral line, yet the "?). Vernment reserved to itself the power to dispense, a: 1:8 pleasure, with such further prohibitions. It is evide...; that the compilers of that code considered the marrom between collaterals in the first degree of consanguinit: : 12 be founded on a prohibition which was of absolute, :, form, and universal obligation, because, as to the pro!.:!,:tion between brothers and sisters, the sovereign ::! :")
dispensing power. In England, the question was cope:*. dered by the Court of Delegates in the case of But!!
Gastrill,b and though the court did not agree to aina marriages between brothers and sisters to be ageinst the law of nature, as marriages were so considered, bewFC! parties connected in the lineal line ; yet they admite: them to be against the law of God, and against goo! - rals and policy. It is not consistent with my purpeso :o pursue this inquiry more minutely. The books ances with curious discussions on the limitations which ongline (be prescribed ; and in the English cases, in particular, :-) which I have referred, the courts bestowed immense labour, and displayed profound learning, in their investiga tions on the subject.c
(5.) The consent of parents, or guardians, to the
a No, 161, 162.
c Whether it be proper or lawful, in a religious or moral sonen ?,r 2 man to marry his deceased wife's sister, has been discussei by Aire ?! writers. Mr. N. Webster, in his Essays, published at Bosicum.] 1 No. 26. held the affirmative ; and it is made lawful by statute inisia necticut. Dr. Livingston, in bis Dissertations, published at Nos "1 : wick in 1816, and coofioed exclusively to that point, maiolaive i ciao gative side of the question. It is not my object to meddle with it q,c's. lion ; but such a marriage is clearly not incestuous or inralid by one .ll" nicipal law. VOL. II.
riage of minors, is not requisite. In this state, we have no statute provision in the case, and marriages are left to the freedom of the common law, and, consequently, with as few checks in the formation of the marriage contract, as in any part of the civilized world. The matrimonial law of Scotland, and of Ireland, is similar to our own,a and so was the English law prior to the statute of 26 Geo. II. c. 33. That statute, among other things, declared all marriages under licenses, when either of the parties were under the age of twenty-one years, if celebrated without publication of banns, or without the consent of the father, or unmarried mother, or guardian, to be absolutely null and void. The English statute pursued the policy of the civil law, and of the law of the present day in many parts of Europe, in holding clandestine marriages to be a grevious evil, so far as they might affect the happiness of families, and the control of property. Though the Roman law greatly favoured marriages by the famous jus trium liberorum, allowing certain special privileges to the parent of three or more children ; yet it held the consent of the father to be indispensable to the validity of the marriage of children, of whatever age, except where that consent could not be given, as in cases of captivity, or defect of understanding. Parental restraints upon marriage existed likewise in ancient Greece,d and they exist to a very great extent in Germany, a Holland, and France.c
a Erskine's Inst, vol. i. 89-91. M'Douall's Inst. vol. i. 112. 2 Ad. dam's Rep. 375. 1 Ibid 64.
6 The' rigour of the act of Geo. II. was somewhat softened by the new marriage act of 3 Geo. IV. c. 75., and the provisions rendering void all marriages solemnized by license, by minors, without consent, was repealed, and marriages had by previous publication of banns were rendered valid, thougb there had been false names used in the publication of the bands. 1 Addam's Rep. 28. 94. 479.
c Inst. 1. 10. Pr. Taylor's Elements of the Civil Law, 310-313. d Poller's Greek Antiq. vol. ij. 270, 271.
The marriage of minors, under these European regulations, is absolutely void, if had without the consent of the father, or mother, if the survivor ; and minority in France extends to the age of twenty-five in males, and twenty-one in females, and even after that period the parental and family check continues in a mitigated degree.
(6.) No peculiar ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required ; and as marriage is said to be a contract jure gentium, that consent is all that is required by natural or public law. The Roman lawyers strongly inculcated the doctrine, that the very fouodation and essence of the contract consisted in consent freely given, by parties competent to contract. Nihil proderit signasse tabulas, si mentem matrimonii non fuisse constabit. Nuptias non concubitus, sed consensus facit. This is the language equally of the common and canon law, and of common reason.
If the contract be made per verba de presenti, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, and which the parties (being competent as to age and consent) cannot dissolve, and it is equally binding as if made in facie ecclesiæ. There is no recognition of any ecclessiastical authority in forming the connexion, and ir 18 considered entirely in the light of a civil contract. This is the doctrine of the common law, and also of the canon law, which governed marriages in England prior to the marriage act of 26 Geo. II. ; and the canon law is also the general law throughout Europe as to
a lleinec. Elem. Jur. Ger. lib. 1. s. 138.
c Pothier, Traite du Contrat de Mar. No. 321–342. Cole Napolcon, No. 148–160. Toulher, Droil Civil Franc. tom, 1. 453—463.
d Grolius, b, 2. c. 5. s. 10. Bracton, lib. 1. ch. 5. sec, 7.
marriages except where it has been altered by the local municipal law. The only doubt entertained by the common law was, whether cohabitation was also necessary to give validity to the contract. It is not necessary that a ciergyman should be present to give validity to the marriage, though it is, doubtless, a very becoming practice, and suitable to the solemnity of the occasion. The consent of the parties may be declared before a magistrate, or simply ketore witnesses, or subsequently confessed or acknowluulged, or the marriage may even be inferred from continual cohabitation, and reputation as husband and wife, except in Cascs of civil actions for adultery, or in public prosecutions für bigamy.. . By the Scots. lastighet previous publication of the intention of the parties is required, though a clandestine marriage withoát such public notice is still valid in law, and only subjects the parties to certain penalties.c It has been the usual practice with nations, lo prescribe certain forms and ceremonies, and generally of a religious nature, as heing requisite to accompany the celebration of the marriage solemnity.d. In the Roman Catholic church, marriage was elevated to the dignity of a sacrament, and was clothed with formalities, and made a complicated institution. But in France, under the revolutionary constitution of 1791, marriage was declared to be regarded in law as a mere civil contract. The same principle was adopted in the code Napoleon; and now, says IfToullier, a the law separates the civil contract entirely from
a 6 Mod. 155. 2 Salk. 137. S. C. Dalrymple v. Dalrymple, 2 Hag. gard, 54. La Tour v. Teesdale, 8 Taunton, 830. Fenton r. Recd, 4 Johns. Rep. 52.
0 1 Salk. 119. 4 Burr. 2057. Doug, 171. The King v. Stockland, Burr. Sett. Cases, 509. Cunninghams v. Cunningbams, 2 Douw. 482. M“Adam v. Walker, 1 Dou, 148. Fenton v. Reed, 4 Johns. Rep. ! %. ci Ersk. Inst. 91. 93. M'Douall's Inst. vol. i. 112.
d Seidon's Uxor Ebraica, b. 2. c. 1. 2 Polter's Greek Antiq. 279. . 283. Dr. Taylor's Elem. 275. 278.
the sacrament of marriage, and does not attend to the laws llof the church and the nuptial benediction, which bind only Uthe conscience of the faithful. The statute of 26 Geo. II. required all marriages in England, without special license to the contrary, to be celebrated in a parish church, or public chapel, and rendered the place indispensable to the validity of them. In most cases, the obser vance of the positive municipal regulations, was made necessary to the validity of the marriage ; but the painful consequences of such a doctrine, have recommended a less severe discipline, in respect to the parties themselves and their issue. The statute of 3 Geo. IV. relaxed the rigour of the former statute, in some particulars, as in the case of the marriage of minors by license, without parental consent, or without due publication of banns, for the severity of that statute frequently led to cases of the most alarming nature, such as the annulling of marriages after the parties had lived happily for a great many years, and reared children. In the states of Maine and Massachusetts, it is requisite, by statute, to a valid marriage, that it be made in the presence and with the assent of a magistrate, or a stated or ordained minister of the gospel; and though a marriage without publication of bands, and without the consent of the parents or guardians, will expose the officer to a penalty for breach of the statute, yet a marriage so had, would nevertheless be lawful and binding, provided there was the presence and assent of a magistrate or minister.b The statute law of Connecticut, requires the marriage to be celebrated by a clergyman or magistrate, and requires the previous publication of the intention of marriage, and the consent of parents, and it inflicts a penalty on those who disobey the regulation; but it is the opinion of the learned
a Droit Civil Francais, tom. 1. No. 494.
6 Milford v. Worcester, 7 Mass. Rep. 48. Ligonia v. Buxton, 2 Greenleaf, 102,