answered: "At common law, a contract entered into by words of present consent was indissoluble. The parties could not release each other from the obligation. Either party, too, might by a suit in the spiritual court compel the other to solemnize the marriage in facie ecclesiæ. It was so much of a marriage, that if they cohabited together before solemnization, they could not be proceeded against for fornication, but merely for a contempt. If either of them cohabited with another person, the parties might be proceeded against for adultery. The contract, moreover, was considered to be of the very essence of matrimony, and was, therefore, and by reason of its indissoluble nature, styled in the ecclesiastical law verum matrimonium, and sometimes ipsum matrimonium. Another, and a most important effect of such a contract was, that if either of the parties afterwards married with another person, solemnizing such marriage in facie ecclesia, the same might be set aside, even after cohabitation and after the birth of children; and the parties might be compelled to solemnize the first marriage in facie ecclesiæ." 10. It would seem, therefore, according to this view, that where a private contract of marriage existed, though not solemnized in facie ecclesiæ, neither of the parties could release the other from its obligations, nor make a valid contract of marriage with a third person; and either of them might compel the other, by proceedings in the spiritual courts, to solemnize the marriage according to the prescribed formalities of the ecclesiastical law. It would appear, further, that in withholding from such contract the ordinary incidents of marriage; in refusing to recognize the legitimacy of the issue, the right to dower, and the usual rights of a husband in the estate of the wife; and at the same time declaring the parties united in a bond indissoluble in its nature, the ecclesiastical courts sought to make it compulsory upon them to solemnize the marriage in facie ecclesiæ, and submit to all the burdens and exactions imposed by the church. This power they were enabled to exercise, for, by the ancient common law, temporal courts possessed no power nor jurisdiction to try the issue of ne unque accouple. The legality of espousals was always triable by the bishop, and, by the old rules of pleading, it was prohibited to bring in issue to the country a question which, like that of the 1 Macq. Husb. and Wife, 5. legality of a marriage, it was the sole and exclusive privilege of the ecclesiastical courts to decide. Any plea, or replication tending to that effect, was treated as an attempt to oust the bishop of his jurisdiction; and though the temporal courts are now considered as having the inherent power of deciding incidentally, either upon the fact or legality of marriage, where they lie in the way to the decision of the proper objects of their jurisdiction, yet in cases of writs of dower, and other real actions, where the issue is upon the legality of the marriage, they have declined departing, except in cases of necessity, from the old technical rule, which requires the mode of trying the question to be by the certificate of the ordinary.' The common law, as administered in the temporal courts, simply required that there should be a lawful marriage, as the foundation of civil rights, leaving the question as to what constituted a lawful marriage to be determined according to the law administered by the ecclesiastical courts: if a woman united to a man by contract only, without solemnization in facie ecclesiæ, did not recover dower, it was only because the ecclesiastical courts refused to acknowledge such a union as conferring the right upon her. It was the same with respect to questions of legitimacy, which depended, in general, upon the bishop's certificate." And this anomalous state of things was the result of the policy adopted by the ecclesiastical courts. If a private contract of marriage were entered into, the contracting parties found themselves burdened with obligations and responsibilities it was utterly out of their power to shake off during the period of their joint lives. If they cohabited together, though not punishable for fornication, they were nevertheless liable to spiritual censure. If either of them entered into a solemn and formal matrimonial alliance with another, the spiritual court would annul such second marriage, on the ground of the pre-contract, and pronounce the issue illegitimate. All the valuable property rights and inci 1 Park on Dower, 11, 12, and the authorities there cited; Robins v. Cruchley, 2 Wilson's R. 127; Co. Litt. by Thomas, 33 a. note (C.) By the 20 & 21 Viet. c. 85, passed Aug. 28th, 1857, which went into operation in the following year, the English ecclesiastical courts are deprived of their jurisdiction over matrimonial causes, and a new court, called "The Court for Divorce and Matrimonial Causes," is thereby created, which exercises that jurisdiction. [See Stat. 36 & 37, Vict. ch. 66.] 2 Jacob's note, 2 Roper, Husb. and Wife, 473; 2 Bright, Husb. and Wife, 396. And see Haydon v. Gould, 1 Salk. 119; Bunting v. Lepingwell, 4 Coke, 29, and note (D); Kenn's case, 7 Coke, 42 b. and note (B.). dents of marriage were withheld, and the consequence was, people were compelled, in the solemnization of their marriages, to submit to the usurpations and comply with the requisitions of the eccleciastical functionaries of the realm. 11. But in the United States we have no courts of a spiritual character. With us there is no tribunal furnished with the machinery, or clothed with the power, of compelling the specific performance of a contract to marry. Hence, if we adopt, without modification, the supposed rule of the common law upon this subject, we are in an infinitely worse condition than the people of England; for while any of our citizens who should undertake to contract a marriage in præsenti would be subjected to all the difficulties and embarrassments with which. the ecclesiastical courts have environed the irregular marriage in England, in the event that either of the contracting parties should afterwards refuse to solemnize the marriage in a more formal manner, the other, having no forum to which to appeal for the enforcement of a more complete performance, would be neither married nor unmarried. If the man were the refractory party, the woman could not have her dower, and the issue, being under the ban of illegitimacy, would be deprived of the right of inheritance to the estate of the father. Consequences similar in their nature would flow from the refusal of the wife to consent to a formal solemnization of the contract, and the quasi husband would find himself shorn of his most important and valuable marital rights. 12 It would be absurd to suppose that those American judges who have pronounced in favor of the validity of private marriages, ever contemplated the necessity of any superadded legal or clerical formalities to render them perfect and complete in all respects. "If we could presume that our legislature had in view the common law of England as declared by the judges in The Queen v. Millis," say the Supreme Court of Ohio, "we cannot suppose that, in the absence and abnegation of all ecclesiastical power and authority over civil rights, there would have been a failure to provide some remedy, or to make some provision in reference to a contract which was so binding as to be 'indissoluble; the parties could not release each other from the obligation.' 10 Cl. & Fin. 832. The legislature must have proceeded on the idea of the entire inapplicability of any 1 See Burtis v. Burtis, 1 Hopkins, 557; Perry v. Perry, 2 Paige, 501. such rule of the common law in this State, where ecclesiastica! authority binds those only who render a voluntary submission." The case of Dumaresly v. Fishly, where a marriage de præsenti was treated as a marriage de facto, and, as such, good for some purposes only, and the case of Mangue v. Mangue,3 where a similar view was expressed, are the nearest approach we have to the application of the English doctrine in this country. But under our system of laws it is a solecism in language to speak of a marriage as good for some purposes and not good for all-as a marriage which is not a marriage. And it may be safely said that in those States where the courts already have, or hereafter shall determine in favor of the validity of private marriages, such marriages will be regarded as being attended with all the civil rights and obligations which, under the ecclesiastical law, flow from a marriage duly solemnized in facie ecclesiæ, and therefore that they confer upon the wife the right to dower." 1 Carmichael v. The State, 12 Ohio St. R. 553, 558; see, also, opinion of Ford, J., in Pearson v. Howey, 6 Halst. 12, aud the observations of the court upon this subject in The State v. Samuel, 2 Dev. & Bat. L. Rep. 177. 2 Dumaresly v. Fishly, 3 A. K. Marsh. 368; ante, ch. 4, 15. 3 Mangue v. Mangue, 1 Mass. 240; ante, ch. 4, 2 19. 4 See strictures of Mills, J., in his dissenting opinion, upon the result of this doctrine, 3 A. K. Marsh. 368. 5 See Rose v. Clark, 8 Paige, 574; Starr v. Peck, 1 Hill, 270; Clayton v. Wardell, 4 Comst. 230; Cheney v. Arnold, 15 N. Y. 345; Londonderry v. Chester, 2 N. H. 268. CHAPTER VII. OF MARRIAGES VOID IN LAW. 1, 2. Marriage de facto and marriage fraud, or through error, at the option of the injured party, treated as voidable only. 30. Statutes requiring a decree of de jure. roid. 3, 4. Matters which render a marriage 5-15. Prior marriage undetermined. 16-17. Idiocy. 18-20. Lunacy. 21. Duress. 22-27. Fraud. 28. Error. 29. Marriage induced by duress, nullity. 31. Marriage within the prohibited degrees. 32-34. Marriage between whites and negroes. 35-36. Failure to observe statutory regulations. Marriage de facto and marriage de jure. 1. LITTLETON, in that part of his great work which relates to dower, says that the wife shall have her dower, whether she hath issue by her husband or no, and of what age soever she be, "so as she be past the age of nine years at the time of the death of her husband." Lord Coke, in his commentary upon this text, remarks: "Here Littleton speaketh of a wife generally, and generally it is to be understood as well of a wife de facto as de jure." The correctness of the principle thus tersely stated has received general if not universal recognition, both in the English and American courts, whenever a case has arisen requiring its practical application. That a wife de jure—there having been no intervening divorce a vinculo-should be entitled to dower, could admit of no question. Nor could any serious doubts arise as to what constituted a marriage de jure. But the elements of a marriage de facto, and the characteristics distinguishing it from a marriage of the other class, have not always been explained with clearness and precision. 2. It has sometimes been supposed that the phrase "marriage de facto" imports a private marriage, or contract of matrimony concluded without the intervention of proper clerical or magis 1 Litt. 36. VOL. I.-8 2 Co. Litt. 33. b. (113) |