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PRACTICAL TREATISE

OF THE

LAW OF MARRIAGE AND DIVORCE.

CHAPTER I.

OF THE GENERAL NATURE OF THE MARRIAGE CONTRACT, AND ORIGIN OF

THE LAW OF MARRIAGE.

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SECT. 1. Of the General Nature of the Marriage Contract

2. The Common Law the Basis of the Law of Marriage
3. How far the Canons are binding in England

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SECT. 1.-OF THE GENERAL NATURE OF THE MARRIAGE CONTRACT.

Definition of Marriage.]—MARRIAGE is considered in every country as a contract, and may be defined to be a contract.according to the form prescribed by the law by which a man and woman, capable of entering into such a contract, mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and his wife. The civil law defines marriage to be “Conjunctio maris et fæminæ consortium omnis vitæ divini et humani juris communicatio."(a) Marriage is the lawful coupling and joining together of man and woman in one individual *state or society of life, during the lifetime of one of the parties, and

[ *2 ] this society of life is contracted by the consent and mutual goodwill of the parties towards each other.(6)

There are various definitions of marriage. Thus it has been defined to be “Viri et mulieris conjunctio, individuam vitæ consuetudinem continens;" or as expressed by Sir George Mackenzie,(c) “ Marriage is the conjunction of man and woman vowing to live inseparably together until death.” Lord President Stair(d) considers it to be a voluntary contract by engagement, because the application of it is, and ought to be, of the most free consent; and because, in matters circumstantial, it is voluntary as in the succession of the issue and the provision of the wife and children; yet that marriage itself, and the obligations thence arising, are jure divino.

(a) Dig. lib. 23, tit. 2, s. 1.
(6) Ayl. Parer. 359.
JULY, 1811.-C

(c) B. I. tit. 6, s. 1.
(d) Inst. tit. 4, s. 1, p. 22.

From various learned authors it may be inferred that marriage is, according to the primitive law of God and Nature, for the mutual help of husband and wife—the propagation of the human race-the educating and instructing their children in the fear and love of God, and training them to be useful members of society (e) It is a solemn contract, whereby a man and a woman, for their mutual benefit, and the procreation of children, engage to live in a kind and affectionate manner; it seems also to partake of the nature of a vow, and cannot, like other contracts, be dissolved by the mutual consent of the parties.(f)

Marriage has been thus beautifully delineated by a modern divine: " It is the means of comfort to the married pair, the preservation and comfort of children, the source of all natural relations of mankind, and the gentle and useful natural affection; the source of all industry and economy; the ground of all education and knowledge, and of civility and sweetness; the origin of all subordination and government, and consequently of all peace and safety in the world; and, finally, the foundation of all religion, as it prevents promiscuous con[ *3 ]

cubinage, *and the children grow up and perform Chris

tian duties."(g) Characteristics of Marriage Contract.]—The characteristic feature of the marriage contract is its permanency; for although it originates in the will of the parties, yet, after being contracted, the duration of the union is totally independent of the will of the parties. In entering into the marriage state it is expressly declared, that the parties shall be joined together till death shall separate them; and in this the marriage contract is distinguished from every other species of contract. Besides the procreation and education of children, marriage has for its object the mutual society, help, and comfort that the one ought to have of the other, both in prosperity and adversity. Marriage is the most solemn engagement which one human being can contract with another. It is a contract formed with a view not only to the benefit of the parties themselves, but to the benefit of third parties; to the benefit of their common offspring, and to the moral order of civil society. The importance of ihis contract is sufficiently obvious, since it is the basis of civilized society and of sound morals, and the source of the domestic affections, and of the delicate ties and relations subsisting between parents and children and other degrees of kindred.(h)

(C) 1 Halkerston's Digest of the Law of whatever promotes the happiness of the ma. Scotland relating to marriage, 3.

jority is binding upon the whole. (f) Brown's Dictionary of the Bible, tit. 2. The production of the greatest number Marriage.

of healthy children, their better education, (g) Dwight's Theology, Sermon 119. and the making of due provision for their

(h) The public use of marriage institutions settlement in lite. consists, according to Archdeacon Paley, in 3. The peace of human society, in cutting promoting the following beneficial effects :- off a principal source of contention, by as

1. The private comfort of individuals, es- signing one or more women to one man, pecially of the female sex. It may be true, and protecting his exclusive right by sancthat all are not interested in this reason; tions of morality and law. neveribeless, it is a reason to all for abstain. 4. The better government of society, by ing from any conduct which tends in its ge. distributing the community into separalo faneral consequence lo obstruct marriages; for milies, and appointing over each the authori.

* The liberty of marriage is a natural right inherent in mankind, confirmed and enforced by the Holy Scriptures.(k)

[ *4 ] But notwithstanding the origin and divine institution of marriage, human legislatures have very properly assumed the power of regulating the exercise of the right of marriage, on account of leading to relations duties, and consequences, materially affecting the welfare and peace of society. It has been the policy of legislators, proceeding on the ground that marriage is the origin of all relations, and consequently the first element of all social duties, to preserve the sacred nature of this contract. In Christian countries this union has been confined to pairs, and with a few exceptions the contract has been rendered indissoluble-regulations which have contributed more towards the general peace, happiness, and civilization of the world, than any other civil institution. The public, as well *as the parties themselves have an interest in making so important a contract a

[ *5 ] matter of certainty ; hence the expediency of requiring certain solemnities of a public nature for the constitution of the contract, and for preserving evidence of it.

Validity depends upon Conformity to Law.)—Marriage being a civil contract, its validity depends on its having been celebrated in the manner, and with the formalities required by law. In some countries only one form of contracting marriage is acknowledged ; thus in England, after the first Marriage Act,(?) with the exception of Jews and Quakers, all marriages were required to be celebrated according to the form prescribed by the Church of England. An option is given to the parties, by a recent statute,(m) of celebrating marriage in another form; but notwithstanding, all marriages in England not celebrated in one of the modes required by the Marriage Acts are mere nullities; there is and can be no such thing in England as an irregular marriage. In some countries all modes of exchanging consent being equally legal, all marriages are on that account equally regular. In other countries a form is recommended and sanctioned, but with a toleration and acknowledgment of other more private modes of effecting the same purpose, though under some discountenance of the law, on account of the non-conformity to the order that is established.(n)

are.

ty of a master of a family, which has more “And the Lord God said, it is not good actual influence than all civil authority put that the man should be alone, I will make together.

him an help meet for him. And the Lord 5. The same end in the additional security God caused a deep sleep to fall upon Adam, which the state receives for the good beha. and he slept; and he took one of his ribs, viour of its citizens, from the solicitude they and closed up the flesh instead thereof; feel for the welfare of their children, and from and the rib which the Lord God had taken their being confined to permanent habita. from man, made he a woman, and brought tions.

her unto the man. And Adam said, this 6. The encouragement of industry. is now bone of my bone and flesh of my

Some ancient nations appear to have been flesh; she shall be called woman, because she more sensible of the importance of marriage was taken out of man. Therefore shall a institutions than we The Spartans man leave his father and bis mother, and shall obliged their citizens to marry by penalties, cleave unto his wife, and they shall be une and the Romans encouraged theirs by the flesh.”. jus trium liberorum. A man who had no A distinct acknowledgment of the Mosaic child was intitled by the Roman law only to account of the origin and obligations of mar. one-half of any legacy that should be left riage is contained in the New Testament:him; that is, at the most could only receive “Have ye not read, that He, which made one-half of the testator's fortune. -Paley's them at the beginning, made them male and Principles of Moral and Political Philosophy, female, and said, for this cause shall a man 8vo. 20th ed. pp. 288–9, b. 3, part 3, ch. 1. leave father and mother, and shall cleave to

(k) The alliance of marriage with religion his wife ; and they twain shall be one flesh. is no further considered in this work than in Wherefore they are no more twain but onę relation to those religious rites which are flesh. What therefore God hath joined toge. made essential to the validity of the contract ther, let no man put asunder.”—Matt. ch. xix. by municipal law.

v. 4, 5, 6. The following texts of Scripture are prin- See also the fifth chapter of Epist. to Ephe. cipally relied on by divines in support of the sians, v. 28, 31. See Dr. Molesworth's Thir. proposition that the state of marriage is of ty-third Sermon on the Origin and Nature of divine institution. In the second chapter of the Marriage Contract. Dwight's Theology, Genesis, v. 18, 21-25, the following simple Sermon 119. and explicit account of the original institution (1) 26 Geo. 2, c. 33. and obligation of marriage, is given :

One principle pervades all the different modes of celebrating marriage, which is, that the matrimonial union is in all cases to be established by consent alone; and that the formalities which the laws of different states require, are nothing more than so many modes of declaring or substantiating this consent. They all have a reference to the publicity or evidence of the marriage ; but the source of the obligation is consent, which founds the relation of husband and wife, anterior to all succeeding ceremonies and formalities, and to any carnal connection. From the very nature of the thing it could not be otherwise ; for it were absurd to rest in any degree the validity of a permanent and rational society for life, on the momentary gratifica[ *6 ]

tion of an animal passion; and it may be *affirmed without

the fear of contradiction, that in every nation on the globe, which is but one stage removed from barbarism, the constitution of marriage is derived from consent, duly authenticated, independent of the conjunctio coporum.(0)

Marriage a Contract.]—It is observed by a learned writer, that “matrimony is a civil contract, the essence of which, as of all contracts, is the consent of the parties. But the contract, from its object, being the procreation of the species, has necessarily reference to other beings than those whose hands are joined in wedlock; and the public good requires that the interests of the expected progeny should be protected by adequate conditions annexed to the contract. Experience, independently of religion, teaches that the great ends of matrimony cannot be fulfilled without imprinting on it a character of indissolubility, unless for such a breach of obligation as would render a forced continuance of the union hurtful to society. The law has therefore imposed on the contract of marriage such a condition; and it is unphilosophical to infer from the indissolubility, at the pleasure of the contracting parties, that it is something different from a contract. It is the law, as the expression of the general will, that gives effect to, and supports all contracts; and that which supports may impose conditions on what demands its sanction. All who enjoy the protection of society are bound to conform to its rules, and every one who contracts matrimony knows the terms of his engagement. It is no less unphilosophical to maintain that, though the law declares null all such contracts as are entered into without conformity to the

(m) 6 & 7 Will. 4, c. 85.

(0) 1 Halkerston's Digest of the Law of (9) Dalrymple v. Dalrymple, 2 Hagg. Cons. Scotland relating to Murriage, 76, R. 61, 62.

enactments of the legislature, the marriages still are valid-because human laws cannot reach them."(p) : In prescribing a form of celebration, there seems little or nothing inconsistent with the principle, that marriage is constituted by the consent of the parties, since all which either law or religion requires is, that the consent shall be given in such a solemn manner as may not only preclude all pretence of the want of a deliberate pur: [ try ] pose, but render the contract of the sacred and important nature which it so justly merits.(9)

Origin of Contract.]-Marriage, in its origin, is a contract of natural law antecedent to its becoming in civil society a civil contract, regulated and prescribed by law and endowed with civil consequences. Superadded to this, in most civilized countries, acting under a sense of the force of sacred obligations, it is a religious contract, the consent of the individuals pledged to each other being ratified and consecrated by a vow to God. This, generally speaking, is the idea of marriage as entertained in every country where the Christian religion prevails.(r)

The forms observed in the celebration of marriage, and the laws which prescribe what is essential to the validity of that contract, have been various in different ages and countries.

The consent of the contracting parties, and not carnal intercourse, forms the essence of the marriage contract.

Consensus non concubitus facit matrimonium, the maxim of the Roman civil law, is in truth the maxim of all law upon the subject; for the concubitus may take place for the mere gratification of present appetite, without a view to any thing further ; but a marriage must be something more; it must be an agreement of the parties, looking to the consortium vitæ ;(s) an agreement, indeed, of the parties capable of the concubitus ; for though the concubitus itself will not constitute marriage, yet it is so far one of the essential duties for which the parties stipulate, *that the

[ *8 ] incapacity of either party to satisfy that duty nullifies the contract.(u) That consent is the very essence and foundation of marriage, is supported by several authorities in the civil law.(v)

(p) 1 Stair's Inst. 25, n. by Brodie. quences and accidental circumstances of it, (9) I Stair's Inst. 25, n. by Brodie. which affect the community as a temporal

(r) Blackstone observes, 1 Comm. 433, body. Our laws and judges may bind and “Our law considers marriage in no other unbind, as far as civil obligations extend ; light than as a civil contract. The holiness but the divine obligations belong to the juris. of the matrimonial state is left entirely to the diction of another law and another judge.ecclesiastical law; the temporal courts not See Dr. Molesworth's 33d Sermon on the having jurisdiction to consider unlawful mar. Origin and Nature of the Marriage Contract, riage as a sin, but merely as a civil inconve. p. 98, 99. See post, pp. 14–16. pience." These words of the learned com- (8) Dig. lib. 23, tit. 2, l. 1; Inst. lib. 1, tit. mentator may be understood to mean that 9, s. 1. human laws have no concern with marriage (u) Dalrymple v. Dalrymple, 2 Hagg. but in one light, that is, as its consequences Cons. R. 62, 63; Dodson, 11. See Code 2 et affect civil society, they consider it only 3, Extra de Spons, et Matrim. Vinnius, lib. in part; their province is not to meddle 1, tit. 9, s. 1; Burn's Eccl. Law, vol. ii. p. with the divine nature of the contract, that 500; Ayl. Par. 227. belongs to religion. The law does not ques. (0) Huber, lib. 1, tit. 10, s. 1; De Nuptiis; tion the religious nature of the contract, or Vinnius, lib. 1, tit. 9, p. 58; Voet, lib. 23, assume that it is nothing more than a civil tit. 2, s. 2. contract, but deals only with those conse

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