THE Contract of Marriage, by which man and woman are conjoined in the strictest society of life till death or divorce shall separate them, is the most ancient, the most important, and the most interesting of the domestic relations. Though correctly designated a civil contract, it differs in sundry points from all other civil contracts; and chiefly in this, that it is indissoluble at the volition of the parties. For which reason, and because of certain mysterious expressions of high import respecting it in the sacred B Marriage a conand divine. tract at once civil Anciently com pleted throughout writings, it is also deemed a divine contract; having been so constituted by the circumstances of its original institution in the case of our first parents, and by the fact of its subsequent elevation into the character of a symbol, or type, emblematical of the union of Christ with his Church. Hence, by Roman Catholics, marriage is considered a sacrament; and even by many denominations of Protestants it is regarded as in some degree partaking of the sacramental nature, although they do not admit it to be actually a sacrament. And this it is which renders matrimony an holy estate, religious in its chief essential attributes, though temporal and arbitrary in its multiform methods of external celebration. By the earlier ecclesiastical law, down to the middle the continent by of the 16th century, marriage throughout the continent the mere consent of parties. of Europe was looked upon as a consensual contract (a), capable of being completed by the parties without any interposition of spiritual authority. This appears from the Decretals, from Sanctius De Matrimoniis, and more especially from De Burgh, who (in a Treatise, composed at the end of the 14th century) expressly affirms that the priests' co-operation is unnecessary, as not being of the essence of the matrimonial sacrament, but merely recommended by the Church for the sake of greater decency and order. So that according to these venerable testimonies the sacrament of marriage might be mutually administered by the contracting parties to each other, without the aid of the sacerdotal office; or even the presence of any one clothed in holy orders. (a) That is to say, a contract completed by a mere interchange of consent by the conjunctio animorum; so that although the parties, after consent given, should, by death, disagreement, or other cause what ever, happen not to consummate the marriage conjunctione corporum, they were, nevertheless, entitled to all the rights, and subject to all the liabilities of the marriage state. subsequente matrimonio. And here may shortly be mentioned a benevolent Legitimation fiction of the Roman law, whereby children born bastards were held legitimate on the subsequent marriage of their parents—a rule which was adopted by the Canonists, and followed by every Christian nation, whether Popish or Protestant, England alone excepted. And yet there were not wanting strenuous efforts to import this doctrine hither. But it met with a memorable and final repulse from the Barons, assembled in Parliament, at Merton, who, in answer to a proposition for its introduction, emphatically declared nolumus leges Angliæ mutari (b). Thus, then, stood the general law of marriage, when, about three centuries ago, the famous Council of Trent, assembled by the Pope, made a decree, which, after admitting that clandestine marriages had previously been valid, proceeded to declare that, for the future, no marriage should be effectual unless celebrated duly in facie ecclesiæ (c). And this, I believe, continues still to be the law of most Roman Catholic communities (d). (b) It was supposed that although the doctrine of Legitimation per subsequens Matrimonium was not received in England, yet if a person born a bastard in a country where the doctrine obtained, was legitimated by the subsequent marriage of his parents, such person might inherit land in England on the principle that if one be legitimate where he is born, he should be taken to be legitimate all the world over. But in Birtwhistle v. Vardell, 7 Cla. & Fin. 895, it was decided by the House of Lords that a Scotchman, under such circumstances, although to all intents and purposes legitimate on the north side of the Tweed, and indeed everywhere besides, was, nevertheless, not legitimate to the effect of inheriting (c) "The law of the Council of (d) But supposing a marriage of two Protestants, celebrated in a Roman Catholic country, according to their own ritual, it would be considered valid, although not in accord ance with the lex loci.-Evidence of Dr. Wiseman in the Sussex Peerage Case, 11 Cla. & Fin. 764. Trent decree requiring ecclesiastical celebra tion. |