CHAPTER XV. OF HUSBAND AND wife. wife. THE second private relation of persons is that of marriage, of husband and which includes the reciprocal rights and duties of husband and wife (1); or, as most of our elder law books call them, of baron and feme. In the consideration of which I shall in the first place inquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage. contract. I. Our law considers marriage in no other light than as a 1. Marriage a civil civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law; the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts (2); which act pro salute animæ (a). And, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law (3). (a) Salk. 121. (1) As to the injuries which may be offered to a person, considered as a husband, and the remedies provided by the law for such wrongs, see Vol. 3, p. 139. 54. (2) But see stat. 5 & 6 Gul. IV. c. (3) See post, p. 435, and Mr. Christian's note thereto. The present law respecting the solemnization of marriages, is to be found in the statutes of 4 Geo. IV. c. 76; 5 Geo. IV. c. 32; 6 Geo. IV. c. 92; and 11 Geo. IV. and 1 Gul. IV. c. 18. 1. Will to contract. 2. Ability to con tract. Di abilities and incapacities. First, they must be willing to contract. "Consensus, non concubitus, facit nuptias," is the maxim of the civil law in this case (b); and it is adopted by the common lawyers (c), who indeed have borrowed, especially in antient times, almost all their notions of the legitimacy of marriage from the canon and civil laws. Secondly they must be able to contract. In general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities and incapacities. What those are, it will be here our business to inquire. Now these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws 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 precontract; consanguinity, or relation by blood; and affinity (4), or relation by marriage; and some particular corporal infirmities. And these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence: it therefore being sinful in the persons who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate's coercion; in order to separate the offenders, and inflict penance for the offence, pro salute animarum. But such marriages not being void ab initio, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not suffer the spiritual courts to declare such marriages to have been void (5): because such declaration cannot now tend to the reformation of the parties (d). And therefore when a man had married his first wife's sister, [ *435] and after her death the bishop's court was proceeding to annul the marriage and bastardize the issue, the court of King's Bench granted a prohibition quoad hoc; but permitted them to proceed to punish the husband for incest (e). These canonical disabilities being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII. c. 38, it is declared, that all persons may lawfully marry, but such as are prohibited by God's law (6); and that all marriages contracted by lawful persons in the face of the church, and consummated with bodily knowledge, and fruit of children, shall be indissoluble. And, because in the times of popery, a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money, it is declared by the same statute, that nothing, God's law excepted, shall impeach any marriage, but within the Levitical degrees (7); the far (e) Salk. 548. (6) In this statute the prohibitions by God's law are not specified; but in the 25 Hen. VIII. c. 22, and 28 Hen. VIII. c. 7, the prohibited degrees are particularized. It is doubtful whether these two last statutes are in force. (2 Burn's Ec. 405). But so far they seem only to be declaratory of the Levitical law. The former declared null and void the marriage between Hen. VIII. and Catharine of Arragon, the widow of his eldest brother Prince Arthur; for which a dispensation had been obtained from the pope. The question respecting the validity of this dispensation produced that quarrel between the king and the pope, which ended in the abolition of the dominion of the latter in this country; and the inconstancy of that capricious king's affections accelerated the reformation of our religion.--CH. (7) The prohibited degrees are all which are under the 4th degree of the civil law, except in the ascending and descending line; and by the course of nature it is scarcely a possible case that any one should ever marry his : issue in the 4th degree: but between collaterals it is universally true, that all who are in the 4th or any higher degree are permitted to marry, as first cousins are in the 4th degree, and therefore may marry; a nephew and great aunt, or niece and great uncle, are also in the fourth degree, and may intermarry and though a man may not marry his grandmother, it is certainly true that he may marry her sister. (Gibs. Cod. 413). See the computation of degrees by the civil law, Vol. 2, p. 207. The same degrees by affinity are prohibited. Affinity always arises by the marriage of one of the parties so related; as a husband is related by affinity to all the consanguinei of his wife; and vice versa the wife to the husband's consanguinei: for the husband and wife being considered one flesh, those who are related to the one by blood, are related to the other by affinity. (Gibs. Cod. 412). Therefore, a man after his wife's death cannot marry her sister, aunt, or niece. But the consanguinei of the husband are not at all related to the consan guinei of the wife. Hence two brothers thest of which is that between uncle and niece (f). By the same statute all impediments arising from precontracts to other persons, were abolished and declared of none effect, 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 branch of the statute was repealed by statute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33, which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract, may collaterally extend to revive this clause of Henry VIII.'s statute, and abolish the impediment of precontract, I leave to be considered by the canonists (8). The other sort of disabilities are those which are created, or at least enforced, by the municipal laws. And, though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. These civil disabilities make the contract void ib initio, and not merely voidable; not that they [ *436] *dissolve a contract already formed, but they render the parties incapable of forming any contract at all: they do not put asunder those who are joined together, but they previously hinder the junction. And, if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial, union. Legal disabilities 1. Prior marriage. 1. The first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, be (f) Gilb. Rep. 158. may marry two sisters; or father and (8) A contract per verba de præsenti ecclesiastical courts ipsum matrimonium; and if either party had afterwards married, this, as a second marriage, would have been annulled in the spiritual courts, and the first contract enforced. (See an instance of it 4 Co. 29). But, as this pre-engagement can no longer be carried into effect as a marriage, I think we may now be assured that it will never more be an impediment to a subsequent marriage actually solemnized and consummated. -CH. OF HUSBAND AND WIFE. sides the penalties consequent upon it as a felony (9), the second marriage is to all intents and purposes void (g): polygamy being condemned both by the law of the New Testament, and the policy of all prudent states, especially in these northern climates. And Justinian, even in the climate of modern Turkey, is express (h), that "duas uxores eodem tempore habere non licet.” 2. The next legal disability is want of age (10). This is 2. Want of age, sufficient to avoid all other contracts, on account of the imbecility of judgment in the parties contracting; a fortiori therefore it ought to avoid this, the most important contract of any. Therefore, if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. This is founded on the civil law (i). But the canon law pays a greater regard to the constitution than the age of the parties (k); for if they are habiles ad matrimonium, it is a good marriage, whatever their age may be. And in our law it is so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again (1). If the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion, he may disagree as well as she may for in contracts the obligation must be mutual; both must be bound, or neither (11): and so it is, vice versâ, (g) Bro. Abr. tit. "Bastardy," pl. 8. (h) Inst. 1. 10. 6. (i) Leon. Constit. 109. (k) Decretal, l. 4, tit. 2, qu. 3. (9) See the exceptions, Vol. 4, 164. -CH. twelve; but it has also long been (10) See stat. 4 Geo. IV. c. 76, ss. 14, regard to contracts for marriage re16, 17, 23. (11) This proposition is too generally expressed; for there are various contracts between a person of full age and a minor, in which the former is bound and the latter is not. The authorities seem decisive that it is true with regard to the contract of marriage referred to the ages of fourteen and ferred to the minority under twenty-one. |