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husband and wife, or as the law books call them, of baron and feme.
I. MARRIAGE A CIVIL CONTRACT.
Province of the Spiritual Courts. Our law considers marriage in no other light than as a civil contract. The holiness of the rite is left entirely to the ecclesiastical law, the temporal courts not having jurisdiction to consider unlawful marriage a. sin, but merely a civil inconvenience. The punishment of incestuous marriage is the province of the spiritual court, which acts pro salute animae. The law treats marriage as any other contract, good and valid, where the parties were willing to contract, able to contract, and lastly actually did contract, in the proper forms of law.
Parties Willing to Contract. Consensus, non concubitus, facit nuptias is the maxim of the civil law in such case. We have adopted almost all the notions of the legitimacy of marriage from the canon and civil laws.
Parties able to Contract. In general, all persons are able to contract marriage, unless they labor under some particular disabilities and incapacities.
Canonical Disabilities. These disabilities are of two kinds: first, such as are canonical, and sufficient to avoid the marriage in the spiritual court; but these in our law only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained. Of this nature are, pre-contract, consanguinity or close relationship by blood, affinity or close relationship by marriage, and some particular corporal infirmities. Such disabilities are either founded upon the express words of the divine law, or are consequences plainly deducible from thence. The ecclesiastical magistrate may separate the offenders and inflict penance for the offence.
Voidable Marriages. Such marriages not being void ab initio, but voidable only by sentence of separation, are esteemed valid for all civil purposes, unless such separation is decreed during the lives of both parties. Therefore, when a man married his wife's sister, the court could not make a decree of nullity and bastardize the issue, but could proceed against the man for incest.
Levitical Law. At one period, a great variety of degrees. of kindred were made impediments to marriage, which resulted
in a statute under Henry VIII, that nothing, God's law except, shall impeach any marriage, but within the levitical degrees, the furthest of which is between uncle and niece.
Consummated. By the same statute, all impediments arising from pre-contract with other persons were abolished, unless they had been consummated with bodily knowledge, in which case the canon law holds such contract to be a marriage de facto, but this clause was repealed by statute of Edward VI.
Disabilities under Municipal Law. The other sort of disabilities are those which are created, or at least enforced, by the municipal laws. They are regarded, not so much as a moral offence, as on account of the civil inconveniences that follow in their wake. These civil disabilities make the contract void ab initio, and not merely voidable, not that they dissolve a contract already formed, but they render the parties incapable of forming any contract at all.
1. Prior Marriage. Where a party has another husband or wife living, an indictment for felony will lie, and the second marriage is void; bigamy and polygamy being condemned by the new testament, and the policy of all prudent states.
2, Non-age. This is sufficient to avoid all contracts, on account of the imbecility of judgment in the parties contracting. If a boy under fourteen and a girl under twelve marry, the marriage is imperfect, and when either party comes to the age of consent, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. This is founded on the civil law. But the canon law pays a greater regard to the constitution, than to the age of the parties, for if they are ripe for marriage, it is a good marriage, whatever their age may be. Under our law, if at the age of consent, they agree to continue together, they need not be married again. If at the date of the marriage, the husband be of lawful age and the wife be under twelve, he as well as she may disagree, for in contracts the obligation must be mutual; both must be bound or neither.1
3, Want of Consent of Parents or Guardians. If the parties themselves at marriage had attained the age of consent, there lacked no other concurrence to make the marriage valid, and this was agreeable to the canon law. Penalties of 100 pounds are laid on every clergyman, who marries a couple, either without publication of banns, which may give notice to parents and guardians, or without a license, to obtain which the consent of such parties must be sworn to, as having been received. The civil law required such consent at all ages, unless the children were emancipated, or beyond the parents' power. If such consent from the father was wanting, the marriage was null, and the children illegitimate, but the consent of the mother or guardian, if unreasonably withheld, might be supplied by the judge, and if the father was non compos, a similar remedy was given.
1 Yet there are various contracts between a minor and adult, in which the minor is not liable, but the adult is bound.
Void Marriages. Marriages celebrated by license, where either of the parties is under twenty-one, not being a widow or or widower, without the consent of the father, or if he be dead, of the mother or guardian, shall be void. A like provision is made as in the civil law, where the parents or guardians are non compos.
Effect of Restraints of Marriage. On the one hand, this prevents the clandestine marriage of minors, while on the other, restraints upon marriage, especially among the lower class, are detrimental to the public, by hindering the increase of the people, and to religion and morality, by encouraging licentiousness, and thereby destroying one object of society.
Roman Law. Effect of Seduction. The Roman law, while it forbade marriage, without the consent of parents or guardians, was less rigorous in regard to other restraints, for if a parent did not provide a husband for his daughter, by the time she arrived at the age of twenty-five, and she afterwards committed an indiscretion, he was not allowed to disinherit her on that account.
4. Want of Reason. Lacking this, no matrimonial contract is valid. Yet formerly it was held, that the issue of an idiot was legitimate, and consequently his marriage was legal. The civil law made such deprivation of reason a previous impediment, though not a cause of divorce, if it happened after marriage. Modern law determines the marriage of a lunatic, not occuring in a lucid interval, to be absolutely void. If prior to the marriage, a commission has declared him to be a lunatic, his subsequent marriage is void.
Parties Actually do Contract. This is of course requisite to constitute the marriage. Any contract made, per verba de presenti, words of the present tense, and in case of cohabitation, per verba de futuro also, between persons able to contract, was before a late act, deemed a valid marriage. But these verbal contracts are now of no force to compel a future marriage. Neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, unless by dispensation from the archbishop of Canterbury. It must also be preceded by publication of banns, or by license from the spiritual judge. Many other formalities are prescribed, the neglect of which, though penal, do not invalidate the marriage. It is held to be essential to a marriage, that it be performed by a person in orders.
Summary of the Law of Marriage. As the law now stands, no marriage by the temporal law is ipso facto void, that is celebrated by a person in orders, in a parish church or public chapel, or elsewhere by special dispensation, in pursuance of banns or license, between single persons, consenting, of sound mind, and of the age of twenty-one years; or of the age of fourteen in males, and twelve in females, with the consent of parents or guardians, or without it in case of widowhood. And no marriage is voidable after the death of either of the parties, nor during their lives, unless for the canonical impediments of precontract, if that still exists, of consanguinity, of affinity or of corporal imbecility existing before marriage.
II. DISSOLUTION OF MARRIAGE.
How Effected. Marriages are dissolved by death or divorce. There are two kinds of divorce, the one total, the other partial.
Divorce, a Vinculo Matrimonii. This total divorce must be for a canonical cause of impediment, which existed before marriage, as is the case with consanguinity; and not supervenient or arising afterward. In cases of total divorce, the marriage is declared null, as having been unlawful ab initio, and the parties are absolutely separated pro salute animarum, for which reason no divorce can be decreed, but during the life of the parties. The issue of such marriage thus dissolved, are bastards.
1 In the United States, decrees of nullity or of divorce are granted for canonical causes, and excepting in the state of South Carolina, absolute divorces are granted for many additional causes, occurring after marriage.
Divorce, a Mensa et Thoro. This may occur, where the marriage is just and legal ab initio, but for some supervenient cause, it becomes improper or impossible for the parties to live together. Such is the case of intolerable ill-temper or adultery, in either of the parties. The canon law reverences so greatly the nuptial tie, that it will not permit its severance for any cause whatever, that arises after the union is made. The revealed law, as set forth in the Bible, assigns adultery as the only cause for a man to put away his wife, and marry another. The civil law, which is partly of pagan origin, allows many causes of absolute divorce. Some of these causes were apparently trifling, as if a wife go to the theatre or public games, without her husband's knowledge and consent. Confessions of the parties as to canonical disabilities will not suffice, under the English law, to obtain a divorce. Divorces a vinculo have, of late years, for adultery, been granted by special acts of parliament.
Alimony. In divorces et mensa et thoro, the law allows alimony to the wife, which is that allowance made to a woman out of her husband's estate, being settled at the discretion of the ecclesiastical judge, on considering the circumstances of the particular case. This is sometimes called her estovers, for which, if he refuses payment, he may be excommunicated, or may be sued by a common law writ of de estoveriis habendis, in order to recover it. Is is generally proportioned to the rank and quality of the parties. In case of the wife's elopement, and living with her paramour, the law allows her no alimony. III. LEGAL CONSEQUENCES OF MARRIAGE.
Married Women. Restrictions. By marriage, the husband and wife are one person in law, that is, the legal existence of the woman is suspended during marriage, or at least is incorporated into that of the husband, under whose protection and cover, she performs everything, and is therefor called by French law, a feme covert, or under the protection of the husband, her baron or lord, and her condition during marriage is one of coverture. A man cannot grant anything to his wife, or enter into covenant with her, for the grant would be to suppose her separate existence, and to contract with her, would be to contract with himself. Also usually all compacts made between the parties, prior to
1 Except through the intervention of a trustee.