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According to the law of nature antecedent to civil institutions, marriage might take place, to all intents and purposes, wherever two persons of different sexes engaged by mutual contracts to live together.(x) In most countries marriage is also clothed with religious rights; even in rude societies, as well as in those which are more distinguished for their civil and religious institutions. Yet in many of those societies marriages may be irregular, informal, and discountenanced on that account, yet not invalidated. The rule prevailed in all times as the rule of the canon law, which existed in this country and in Scotland till other civil regulations interfered in this country; and it is the rule which prevails in many countries of the world at this day, that a mutual engagement or betrothment is a good mar. riage, without consummation, according to the law of nature, and binds the parties accordingly, as the terms of other contracts would do, respecting the engagements which they purport to describe. If they agree and pledge their troth to resign to each other the use of their persons, for the purpose of raising a common offspring by the law of nature, that is complete. It is not necessary that actual use and possession should have intervened to complete the vinculum fidei. The vinculum follows on the contract, without consummation, if expressed in present terms; and the canon law itself, with all its attachments to ecclesiastical forms, adopts this view of the subject, as is well described by Swinburne, in his book of Espousals,(y) where he says, “ That it is a present and perfect consent, the which alone maketh matrimony, without either public solemnization or carnal copulation, for neither is the one nor the other the essence of matrimony, but consent only."(2) [ 9 ]
*Marriage according to the Law of Nature.]—It is hardly
necessary to observe, that a mere casual commerce between sexes, without the intention of cohabitation, does not constitute marriage even by the law of nature. But when two persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabitation, that, in a state of nature, would be a marriage, and in the absence of all civil and religious institutes might safely be presumed to be, as it is popularly called, a marriage in the sight of God.
It has been made a question, how long the cohabitation must continue by the law of nature whether to the end of life. Without pursuing that discussion, it is enough to say that it cannot be a mere casual and temporary commerce, but must be a contract at least extending to such purposes of a more permanent nature in the intention of the parties. The contract thus formed in a state of nature, is adopted as a contract of the greatest importance in civil institutions, and it is charged with a vast variety of obligations merely civil. Rights of property are attached to it on very different principles in different countries. In some there is a communio bonorum, a community of goods; in some, each retain their separate property.(a) By the law of England, the personal estate is vested absolutely in the husband, who also acquires temporary rights in his wife's real estate. () 1 Hagg. Cons. R. 230.
231, 232. (y) Sect. 4.
(u) Lindo v. Belisario, 1 Hagg. Cons. R. (z) Linao v. Belisario, 1 Hagg. Cons. R. 231.
But rights of property have nothing to do with marriage, considered with reference to the formation of the contract,(6) for marriage may be good independent of any considerations of property, and the vinculum fidei may well subsist without them.
Morganatic Marriage.]—In the middle ages, a custom prevailed which has been thought to have introduced an intermediate state between matrimony and concubinage ; it was called a Morganatic marriage. “The name denotes its Germanic origin,(c) and it is even yet not quite out of use in that country, under the appellation of a lefthanded marriage; but the earliest and clearest description of it is to be found in the Book of Feuds, though it is there wrongly attributed to the *Salic law, in which no trace of it appears, by a mistake, not unusual
, of referring all the customs of ihe [ *10 ] Franks to that code. It is defined to be the lawful and inseparable conjunction of a single man, of noble or illustrious birth only, with a single woman of an inferior or plebeian station, upon these conditions, that neither the wife nor her children should partake of the titles, arms or dignity of the husband, or succeed to his inheritance, but should be contented with a certain allowance, assigned to them by the Morganatic contract. But since these restrictions relate only to the rank of the parties, and the succession to property, without effecting the real nature of a matrimonial engagement, it must be considered in the light of a just marriage, of which it has every essential character. The marriage ceremony was in general regularly performed; the union was for life and indissoluble, and the children in other respects legitimate. This connection was very usual in most countries of Europe; but I cannot find sufficient proof that the concubines of Charlemagne, and some of the early kings of France, were wives of this description ; nor is there occasion to resort to that supposition, in defence of their conduct, since the state of concubinage itself was little inferior to this in the public estimation.”(d)
Concubinage.]– A concubine did not mean in the civil law a harlot; the concubine was a person taken to cohabit in the manner, and under the character, of a wife, but without being authorized thereto by a legal marriage. Concubinage was confined to a single person, was of perpetual obligation as much as marriage itself; was a society recognized by the laws, and in general entered into between persons who, by laws of policy, were forbidden by the state to marry together for want of quality or fortune; the concubine might even be accused of adultery. Those characters show how widely mistaken we should be if we annexed the idea of immodesty and contempt to the name of concubine annong the ancients, as we do in modern times.(e)
(6) Ib. 236.
celibacy. Her modest station, below the ho. (c) See I Frederican Code, p. 135, b. 2, nours of a wife, above the infarny of a prosti. art. 3; Pothier Traité du Contat de Mariage, tute, was acknowledged and approved by the part 1, ch. 2, s. 2.
laws. From the age of Augustus to the 10th (d) Sir A. Croke's Introduction to the case cenlury, the use of this secondary marriage of Horner v. Liddiard, 115-117.
prevailed buth in the west and east, and the (e) 1 Brown's Civil Law, 80, 81. A con. humble virtues of a concubine were often eubine, in the strict sense of the civilians, preferred to the pomp and insolence of a nowas a woman of servile and plebeian extrac- ble matron. 5 Gibbon's Hist. 399, 400, Svo. tion, the sole and faithful companion of a 1823. Roman citizen who continued in a state of
Concubinage, or the union, something more than temporary of one [ *11 ]
man with one woman, has always had its advocates, *and
plausible arguments have been advanced to prove it to have all the advantages and effects of marriage itself. But a question similar to the injunction of St. Ambrose, quoted in the canon law, will ever suggest itself. “ If your connection differs from marriage, in the duration, or other respects, it cannot fulfil the purposes of marriage; if it does not differ in substance, why not add the ceremony?” In a state of nature, this nude connection may answer the demands of duty; but, in established societies, the obligations of a citizen require that it should be clothed with the forms in which it has been invested by the laws. The most important ends of the association between the sexes can only be obtained by its permanency and continuing for life. Marriage is a solemn contract to that effect, entered into in the face of the world, in the manner appointed by law. To strengthen this engagement to natural obligation, laws superadd their compulsion. There is a much greater security that such an union should be permanent, than where it depends solely upon the will of the parties, liable to be dissolved at pleasure. Concubinage differs, therefore, from marriage, by being defective in its most important and essential quality ; and the superior firmness of the matrimonial union, beyond a mere voluntary connection, is, perhaps, one of the greatest advantages which arise from the establishment of civil society. (f)
It is observed by a modern writer, that "The value of the institution of marriage cannot be placed before us in a more striking point of view, than by contrasting the situation of the offspring of marriage, with that of the miserable, and often outcast, children born out of the pale of wedlock. These, commonly destitute of a father's care and authority, and sometimes of even both the parents, who are either regardless or ashamed of the child of their disgrace, are sent forth unarmed and unprotected amidst the snares and temptations of the [ *12 ]
*world. Too often do the streets of our metropolis find the
ranks of crime largely recruited from those unhappy beings, in whom no father's authority has interposed to arrest the early advances of wickedness, and over whom no mother's care has watched to sow in their infant minds those principles and seeds of holiness, which might preoccupy the ground, and spring up to maintain possession of it, against the deadly and rank harvest sown by the enemy of their souls. Nay, what is worse, the guilty parents, instead of guarding and directing the feeble steps of the illegitimate child, are too well prepared themselves to set the example, and become his leaders, in the course of that guilt in which his very being originated. How different from this are the virtuous associations, the hallowed and gentle bonds which have their origin in the holy estate of matrimony.' Here no feelings of shame and disgrace interfere, to cause them, in violation of the gracious claims of natural affection, to shun their offspring. Few will be found so depraved as altogether to treat with contempt these awful claims, and siill fewer to run counter to the feelings of natural affection; when, instead of being stifled by the
(f) Introduction to the case of Horner v. Paley's Moral and Political Philosophy, b. Liddiard, by Sir A. Croke, pp. 17, 18. See nt. 3, c. 2.
danger of infamy or punishment, those feelings are cherished and encouraged by the approbation of God and man. But this care will not be confined merely to their spiritual instruction; it will extend itself also to a care for their bodily comfort, and to their capability of fulfilling honourably and beneficially their duties in that station of society which the providence of God shall be pleased to assign to them. Hence the community derives most of those advantages which may accrue to it from a race of citizens, whose bodily vigour and mental endowments fit them to perform well its offices. Neither, on the other hand, must it be forgoiten, that, while the institution of marriage prevents the state from being burthened with the maintenance of those, whose helplessness, profligate, or self-condemned parents might abandon, a similar security is provided, by the self same insti. tution, against the destitute parent being left by his offspring in the feeblenes of old age, either to perish or to be a burthen to the community. The affection and honour established between the offspring of matrimony and their parents, is likely to be reciprocal; and those sacred relations which bind the parent to feel an *interest and obligation for the maintenance of the child, also bind [ *13 ] the child, when he shall have become of age and ability, to honour and support the parent, from whom he derived his existence, and to whose affectionate cares he is indebted for his preservation. To these advantages which society reaps from this ordinance, must be . added the immense benefits which arise from the spur applied to human industry and enterprise, by the necessities and relations to which matrimony gives birth. The extent of these is incalculable. From the affectionate desire to promote the welfare of their families, or from a conscientious earnestness to fulfil the obligations to which parents have rendered themselves liable, have arisen in no small degree the multipled inventions of scientific research, and the immense and accumulated achievements of the excited energies of the human mind. While, on the other hand, the combination of efforts, and the aids of mutual support, brought about by the natural associations of husbands and wives, parent and children, brothers and sisters, have given tenfold strength to individual exertion. Who can reflect a moment on these, and not see the gigantic scale on which these associations must operate on the comfort and welfare of every community, wherein they prevail and are respected? The state, as well as individuals, may apply to children the exclamation of the Psalmist, they are like as the arrows in the hand of the giant.' "(g)
Marriage, how considered.]—Marriage is considered in various lights by different laws. The Roman had respect principally to its civil effects, as it produced in the husband and wife a mutual participation of benefits and right. The Romans did not however omit all religious rites on the perfection of this contract, but their laws viewed it merely as a civil covenant, however Heaven might preside over its ratification. Those rites were not any part of its essence; it was good without them. The Canonists consider it in a religious light, and define it a sacrament peculiar to the Jaily, by which a man and woman are joined together according to the precepts of the church.
(g) Dr. Molesworth on the Purposes and lairt, Sermon 34, pp. 109-113. Solemnization of Marriage: Domestic Chap.
Among. Protestants it is considered partly as a holy union of divine [ *14 ]
institution, partly as a civil *contract; in the latter view
alone it is regarded by the temporal courts; its sacred bonds being left entirely to the guardianship of the spiritual tribunals.(h)
Two opinions have been held by writers on the subject of marriage. It is held by some persons that marriage is a contract merely civil; by others, that it is a sacred, religious, and spiritual contract, and only so to be considered. The jurisdiction of the Ecclesiastical Court was founded on ideas of the latter description; but in a more correct view of this subject neither of those opinions is perfectly accurate. According to juster notions of the .nature of the marriage contract, it is not merely either a civil or religious contract; and at the present time it is not to be considered as originally and simply one or the other.(i)
In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanctions of religion superadded ; it then becomes a religious as well as a natural and civil contract; for it is a great mistake to suppose that because it is the one, therefore it may not likewise be the other. Heaven itself is made a party to the contract, and the consent of the individuals pledged to each other is ratified and consecrated by a vow to God. It was natural enough that such a contract should, under the religious system which prevailed in Europe, fall under ecclesiastical notice and cognizance with respect both to its theological and its legal constitution ; though it is not unworthy of remark, that amidst the manifold ritual provisions made by the divine lawgiver of the Jews for various offices and transactions of life, there is no ceremony prescribed for the celebration of marriage. In the Christian church marriage was elevated in a later age to the dignity of a sacrament, in consequence of its divine institution, and of some expressions of high and mysterious import respecting it contained in the sacred writings. The law of the church, the canon law (a system which, in spite of its absurd pretensions to a higher origin, is in many of its provisions deeply enough founded on the wisdom of man), although in conformity to the prevailing theological opinon, it reverenced marriage as a sacrament, still so far respected its natural and civil origin, as to consider, that where the
natural and civil contract was formed *it had the full essence [ *15]
of matrimony, without the intervention of the priest ; it had even in that state the character of a sacrament, for it is a misapprehension to suppose that this intervention was required as matter of necessity, even for that purpose, before the Council of Trent.(k)
When popery, ignorance, and superstition, rode triumphant in every part of Europe, the Court of Rome took care to establish every regulation they could think of, that might tend towards rendering applications necessary and frequent to the holy see, from every one of which they knew how to draw large fees and perquisites. For this purpose they extended considerably the prohibited degrees of marriage, and for this purpose they made the marriage contract a sacrament, a (h) 1 Brown's Civil Law, 50, 51.
disp. 6, s. 2, et lib. 2, disp. 10, s. 2; Father (i) 1 Hagg. Con:, R. 230. 417.
Paul, p. 737; Pallavicini, lib. 23, ch. 8; Po(k) 2 Hagg. C. R. 62–65; Sanchez, lib. 2. thier, tit. 3, p. 290.