The Law Concerning Marriage

The primary and most important of the domestic relations, is that of husband and wife. It has its foundation in nature, and is the only lawful relation by which Providence has permitted the continuance of the human race. In every age it has had a propitious influence on the moral improvement and happiness of mankind. It is one of the chief foundations of social order. We may justly place to the credit of the institution of marriage, a great share of the blessings which flow from refinement of manners, the education of children, the sense of justice, and the cultivation of the liberal arts.¹ In the examination of this interesting contract, I shall, in the first place, consider how a marriage may be lawfully made, and, secondly, how it may be lawfully dissolved; and, lastly, I shall take a view of the rights and duties which belong to that relation.

(1.) All persons who have not the regular use of the understanding, sufficient to deal with discretion in the common affairs of life, as idiots and lunatics, (except in their lucid intervals,) are incapable of agreeing to any contract, and of course to that of marriage. But though marriage with an idiot or lunatic, be absolutely void, and no sentence of avoidance be absolutely necessary; yet. as well for the sake of the good order of society, as for the peace of mind of all persons concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction.² The existence and extent of mental disease, and how far it may be sufficient, by thy; darkness and disorder which it brings upon the human faculties, to make void the marriage contract, may sometimes be a perplexing question, extremely distressing to the injured party, and fatal to the peace and happiness of families. Whether the relation of husband and wife lawfully exists, never should be left uncertain. Suits to annul a marriage, by reason of idiocy or lunacy, have consequently been often instituted and sustained in the spiritual courts in England.³ The proper tribunal for the investigation of this question, when it is brought up directly, and for the mere purpose of testing the validity of the contract, will depend upon the local institutions of every state. In those states, which have no tribunals distinct from the supreme courts of common law jurisdiction, for the exercise of equity powers, whatever jurisdiction is exercised over the matrimonial contract, must be in the common law courts. In this state, it has been adjudged to belong to the Court of Chancery, which possesses, exclusively, all the powers of the ecclesiastical courts in England, which can be lawfully exercised over the question under our constitution and laws.⁴

A marriage procured by force or fraud, is also void ab initio, and may be treated as null by every court, in which its validity may be incidentally drawn in question. The basis of the marriage contract, is consent and the ingredient of fraud or duress, is as fatal in this, as in any other contract, for the free assent of the mind to the contract is wanting.⁵ The common law allowed divorces a vinculo, causa metus, causa impotentiae, and those were cases of a fraudulent contract. It is equally proper in this case, as in those of idiocy or lunacy, that the fraud or violence should be judicially investigated, in a suit instituted for the very purpose of annulling the marriage; and such a jurisdiction in the case, belongs to the ecclesiastical courts in England, and to the Court of Chancery in this state, and was lately sustained in a case of gross fraud.⁶ It is said that error will, in some cases, destroy a marriage, and render the contract void, as if one person be substituted for another. This, however, would be a case of palpable fraud, going to the substance of the contract; and it would be difficult to state a case, in which error simply, and without any other ingredient, as to the parties, or one of them, in respect to the other, would vacate the contract. It is well understood, that error, and even disingenuous representations in respect to the qualities of one of the contracting parties, as his condition, rank, fortune, manners, and character, would be insufficient. The law makes no provision for the relief of a blind credulity, however it may have been produced.⁷

(2.) No persons are capable of binding themselves in marriage, until they have arrived at the age of consent, which, by the common law of the land, is fixed at fourteen in males, and twelve in females. The law supposes that the parties at that age, have sufficient discretion for such a contract, and they can then bind themselves irrevocably, and cannot afterwards be permitted to plead even their egregious indiscretion, however distressing the result of it may be. Marriage, before that age, is voidable at the election of either party, on arriving at the age of consent, if either of the parties be under that age when the contract is made.⁸ But this rule of reciprocity, however true in its application to actual marriages, does not apply to other contracts made by a competent party with an infant, nor even to a promise of marriage per versa de futuro with an infant, under the age of discretion. The person of full age is absolutely bound, and the contract is only voidable at the election of the infant. This point was ruled by the K. B. in Holt v. Ward Clarencieux,⁹ after the question had been argued by civilians, to see what light might be thrown upon it from the civil and canon law. Though this be the rule of the English law, the civilians and canonists are not agreed upon the question; and Swinburne was of opinion, that the contract in that case was not binding upon the one party more than upon the other.¹⁰

The age of consent by the English law, was no doubt borrowed from the Roman law, which established the same periods of twelve and fourteen, as the competent age of consent to reader the marriage contract binding. Nature has not fixed any precise period, and municipal laws must operate by fixed and reasonable rules. The same rule was adopted in France, before their revolution;¹¹ but by the Napoleon code,¹² the age of consent was raised to eighteen in males, and fifteen in females, though a dispensation from the rule may be granted for good cause.

(3.) No person can marry while the former husband or wife is living. Such second marriage is, by the common law, absolutely null and void;¹³ and it is probably a statute offence in most, if not in all of the states in the Union. In this state, it is made a felony in all but certain excepted cases. Those cases are, when the husband or wife, as the case may be, of the party who remarries, remains continually without the United States for five years together, or when one of the married parties shall have absented from the other by the space of five years together, and the one not knowing the other to be living within that time; or the persons, who at the time of such marriage, are divorced by the sentence of a competent court, or whose former marriage has been duly declared void, or was made within the age of consent.¹⁴ This statute was a transcript of the statute of I Jas. I. c. II, with a reduction of the time of absence, from seven to five years; and though the penal consequences of a second marriage do not apply in those excepted cases, yet if the former husband or wife be living, though the fact be unknown, and there be no divorce a vinculo duly pronounced, or the first marriage has not been duly annulled, the second marriage is absolutely void, and the party remarrying incurs the guilt of an unlawful connection. If there be no statute regulation in the case, the principle, the common law, and not only of England, but generally of the Christian world, is, that no length of time, or absence, and nothing but death, or the decree of a court, confessedly competent to the case, can dissolve the marriage tie.¹⁵

The statute of this state is susceptible of the same construction as that given to the statute of James, and therefore, if one of the married parties shall have continually remained abroad for five years, and be living, even within the knowledge of the party here, or the parties were at the time only under a divorce a mensa et thoro, yet the second marriage, though void in law, would not be within the penalties of the act. It is still a divorce, and the act does not distinguish between the two species of divorce.¹⁶ The crime of bigamy, or of polygamy, as it ought more properly to be termed,¹⁷ has been made a capital offence in some, and punished very severely in other parts of Europe;¹⁸ but the new civil code of France,¹⁹ only renders such second marriage unlawful, without annexing any penalty for the offence.

The direct and serious prohibition of polygamy contained in our law, is founded on the precepts of Christianity, and the laws of our social nature, and it is supported by the sense and practice of the civilized nations of Europe.²⁰ Though the Athenians, at one time, permitted polygamy, yet, generally, it was not tolerated in ancient Greece, but was regarded as the practice of barbarians.²¹ It was also forbidden by the Romans throughout the whole period of their history, and the prohibition is inserted in the Institutes of Justinian.²² Polygamy may be regarded as exclusively the feature of Asiatic manners, and of half-civilized life, and to be incompatible with civilization, refinement, and domestic felicity.

(4.) In most countries of Europe in which the canon laws has had authority or influence, marriages are prohibited between near relations by blood or marriage. Prohibitions similar to the canonical disabilities in the English ecclesiastical law, were contained in the Jewish laws, from which the canon law was, in this respect, deduced; and they existed also in the laws and usages of the Greeks and Romans, subject to considerable altercations of opinion, and with various modifications and extent.²³ These regulations, as far at least as they prohibit marriages among near relations, by blood or marriage, (for the canon and common law made no distinction on this point between connections by consanguinity and affinity,²⁴ are evidently founded in the law of nature; and incestuous marriages have generally (but with some strange exceptions at Athens²⁵) been regarded with abhorrence by the soundest writers and the most polished states of antiquity. Under the influence of Christianity, a purer taste, and stricter doctrine, has been inculcated; and an incestuous connection between an uncle and niece, has been recently adjudged by a great master of public and municipal law, to be a nuisance extremely offensive to the laws and manners of society, and tending to endless confusion, and the pollution of the sanctity of private life.²⁶

It is very difficult to ascertain exactly the point at which the laws of nature have ceased to discountenance the union, It is very clearly established, that marriages between relations by blood in the lineal, or ascending and descending lines, are unnatural and unlawful, and they lead to a confusion of rights and duties. On this point, the civil, the canon, and the common law, are in perfect harmony. In the very learned opinion which Ch. J. Vaughan delivered on this subject in Harrison v. Burwell,²⁷ upon consultation with all the judges of England, he considered that such marriages were against the law of nature, and contrary to a moral prohibition binding upon all mankind. But when we go to collaterals, it is not easy to fix the forbidden degrees by clear and established principles.²⁸

In several of the United States, marriages within the levitical degrees are made void by statute; but in this state we have no statute defining the forbidden degrees, and in England, the prohibition to marry within the levitical degrees rests on the canon law, which, in that respect, received the sanction of several statutes passed in the reign of Hen. VIII. It was considered, in the case of Wightman v. Wightman,²⁹ that marriages between brothers and sisters in the collateral line, were equally, with those between persons in the lineal line of consanguinity, unlawful and void, as being plainly repugnant. to the first principles of society, and the moral sense of the civilized world. It would be difficult to carry the prohibition farther without legislative sanction; and it was observed, in the case last referred to, that in this state, independent of any positive institution, the courts would not probably be authorized to interfere with marriages in the collateral line beyond the first degree, especially as the levitical degrees were not considered to be binding as a mere rule of municipal obedience. The Napoleon code,³⁰ has adopted precisely the same extent of prohibition, as forming the impassable line between lawful and incestuous marriages; and though the prohibition goes deeper into the collateral line, yet the government reserved to itself the power to dispense, at its pleasure, with such further prohibitions. It is evident, that the compilers of that code considered the marriage between collaterals in the first degree of consanguinity, to be founded on a prohibition which was of absolute, uniform, and universal obligation, because, as to the prohibition between brothers and sisters, the sovereign had no dispensing power. In England, the question was considered by the Court of Delegates in the case of Butler v. Gastrill,³¹ and though the court did not agree to admit marriages between brothers and sisters to be against the law of nature, as marriages were so considered, between parties connected in the lineal line; yet they admitted them to be against the law of God, and against good morals and policy. It is not consistent with my purpose to pursue this inquiry more minutely. The books abound with curious discussions on the limitations which ought to be prescribed; and in the English cases, in particular, to which I have referred, the courts bestowed immense labor, and displayed profound learning, in their investigations on the subject.³²

(5.) The consent of parents, or guardians, to the marriage of minors, is not requisite. In this state, we have no statute provision in the case, and marriages are left to the freedom of the common law, and, consequently, with as few checks in the formation of the marriage contract, as in any part of the civilized world. The matrimonial law of Scotland, and of Ireland, is similar to our own,³³ and so was the English law prior to the statute of 26 Geo. II. c. 33. That statute, among other things, declared all marriages under licenses, when either of the parties were under the age of twenty-one years, if celebrated without publication of banns, or without the consent of the father, or unmarried mother, or guardian, to be absolutely null and void. The English statute pursued the policy of the civil law, and of the law of the present day in many parts of Europe, in holding clandestine marriages to be a grievous evil, so far as they might affect the happiness of families, and the control of property.³⁴ Though the Roman law greatly favored marriages by the fatuous jus trium liberorum, allowing certain special privileges to the parent of three or more children; yet it held the consent of the father to be indispensable to the validity of the marriage of children, of whatever age, except where that consent could not be given, as in cases of captivity, or defect of understanding.³⁵ Parental restraints upon marriage existed likewise in ancient Greece,³⁶ and they exist to a very great extent in Germany,³⁷ Holland,³⁸ and France.³⁹ The marriage of minors, under these European regulations, is absolutely void, if had without the consent of the father, or mother, if the survivor; and minority in France extends to the age of twenty-five in males, and twenty-one in females, and even after that period the parental and family check continues in a mitigated degree.

(6.) No peculiar ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required; and as marriage is said to be a contract jure gentium, that consent is all that is required by natural or public law.⁴⁰ The Roman lawyers strongly inculcated the doctrine, that the very foundation and essence of the contract consisted in consent freely given, by parties competent to contract. Nihil proderit signasse tabulas, si mentem matrimonii non fuisse constabit. Nuptias non concubitus, sed consensus facit. This is the language equally of the common and canon law, and of common reason.

If the contract be made per verba de praesenti, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, and which the parties (being competent as to age and consent) cannot dissolve, and it is equally binding as if made in facie ecclesiae. There is no recognition of any ecclesiastical authority in forming the connection, and it is considered entirely in the light of a civil contract. This is the doctrine of the common law, and also of the canon law, which governed marriages in England prior to the marriage pct of 26 Geo. II; and the canon law is also the general law throughout Europe as to marriages except where it has been altered by the local municipal law. The only doubt entertained by the common law was, whether cohabitation was also necessary to give validity to the contract.⁴¹ It is not necessary that a clergyman should be present to give validity to the marriage, though it is, doubtless, a very becoming practice, and suitable to the solemnity of the occasion. The consent of the parties may be declared before a magistrate, or simply before witnesses, or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation, and reputation as husband and wife, except in cases of civil actions for adultery, or in public prosecutions for bigamy.⁴²

By the Scots law, a previous publication of the intention of the parties is required, though a clandestine marriage without such public notice is still valid in law, and only subjects the parties to certain penalties.⁴³ It has been the usual practice with nations, to prescribe certain forms and ceremonies, and generally of a religious nature, as being requisite to accompany the celebration of the marriage solemnity.⁴⁴ In the Roman Catholic church, marriage was elevated to the dignity of a sacrament, and was clothed with formalities, and made a complicated institution. But in France, under the revolutionary constitution of 1791, marriage was declared to be regarded in law as a mere civil contract. The same principle was adopted in the code Napoleon; and now, says Toullier,⁴⁵ the law separates the civil contract entirely from the sacrament of marriage, and does not attend to the laws of the church and the nuptial benediction, which bind only the conscience of the faithful. The statute of 26 Geo. II required all marriages in England, without special license to the contrary, to be celebrated in a parish church, or public chapel, and rendered the place indispensable to the validity of them. In most cases, the observance of the positive municipal regulations, was made necessary to the validity of the marriage; but the painful consequences of such a doctrine, have recommended a less severe discipline, in respect to the parties themselves and their issue. The statute of 3 Geo. IV relaxed the rigor of the former statute, in some particulars, as in the case of the marriage of minors by license, without parental consent, or without due publication of banns, for the severity of that statute frequently led to cases of the most alarming nature, such as the annulling of marriages after the parties had lived happily for a great many years, and reared children. In the states of Maine and Massachusetts, it is requisite, by statute, to a valid marriage, that it be made in the presence and with the assent of a magistrate, or a stated or ordained minister of the gospel; and though a marriage without publication of banns, and without the consent of the parents or guardians, will expose the officer to a penalty for breach of the statute, yet a marriage so had, would nevertheless be lawful and binding, provided there was the presence and assent of a magistrate or minister.⁴⁶ The statute law of Connecticut, requires the marriage to be celebrated by a clergyman or magistrate, and requires the previous publication of the intention of marriage, and the consent of parents, and it inflicts a penalty on those who disobey the regulation; but it is the opinion of the learned author of the Treatise on the Domestic Relations,⁴⁷ that the marriage, if made according to the common law, without observing any of those statute regulations, would still be a valid marriage. This I should infer, from the. ruse of Wyckoff v. Boggs,⁴⁸ to be the rule in New Jersey, where the marriage contract is under similar legislative regulations. It is the doctrine judicially declared in New Hampshire and Kentucky, and the marriage is held valid as to the parties, though it be not solemnized in form, according to the requisitions of their statute law. There are probably statute provisions of a similar import in other states of the Union; and wherever they do not exist and specially apply, the contract is, everywhere in this country, (except in Louisiana,) under the government of the English common law.

(7.) It has been a point much discussed in the English courts, whether a clandestine marriage in Scotland, of English parties, who resided in England, and resorted to Scotland, with an intent to evade the operation of the English marriage act,⁴⁹ could be received and considered in England, as valid. Though we may not, in this country, have at present any great concern with that question, the principle is nevertheless extremely important in the study of the general jurisprudence, applicable to the marriage contract.

As the law of marriage is a part of the jus gentium, the general rule undoubtedly is, that a marriage valid by the law of the place where it is made, is valid everywhere. An exception to this rule is stated by Huberus,⁵⁰ who maintains, that if two persons, in order to evade the law of Holland, which requires the consent of the guardian or curator, should go to Friezeland, or elsewhere, where no such consent is necessary, and there marry, and return to Holland, the courts of Holland would not be bound by the law of nations to hold the marriage valid, because it would be an act done ad eversionem juris nostri. In opposition to this opinion, we have the decision of the Court of Delegates in England in 1768, in Compton v. Bearcroft,⁵¹ where the parties, being English subjects, and one of them a minor, ran away, without the consent of the guardian, to avoid the English law, and married in Scotland. In a suit in the Spiritual Court, to annul the marriage, it was decided, that the marriage was valid. This decision of the Spiritual Court has been since frequently and gravely questioned. Lord Mansfield, a few years before that decision of the delegates, intimated pretty strongly,⁵² his opinion in favor of the doctrine in Huberus, though he admitted the case remained undecided in England. The settled law is now understood to be, that which was decided in the Spiritual Court. It was assumed and declared by Sir George Hay, in 1776, in Harford v. Morris,⁵³ to be the established law. The principle is, that, in respect to marriage, the lex loci contractus prevails over the lex domicilii, as being the safer rule, and one dictated by just and enlightened views of international jurisprudence. This rule was shown by the foreign authorities referred to by Sir Edward Simpson in 1752, in the case of Scrimshire v. Scrimshire,⁵⁴ to be the law and practice in all civilized countries by common consent and general adoption. It is a part of the jus gentium of Christian Europe, and infinite mischief and confusion would ensue with respect to legitimacy, succession, and other rights, if the validity of the marriage contract was not to be tested by the laws of the country where it was made. This doctrine of the English ecclesiastical courts, was recognized by the Supreme Court of Massachusetts, in Medway v. Needham;⁵⁵ and though the parties in that case left the state on purpose to evade its statute law, and to marry in opposition to it, and being married returned again, it was held, that the marriage must be deemed valid, if it be valid according to the laws of the place where it was contracted, notwithstanding the parties went into the other state with an intention to evade the laws of their own. It was admitted, that the doctrine was repugnant to the general principles of law relating to other contracts; but it was adopted in the case of marriage, on grounds of policy, with a view to prevent the public mischief and the disastrous consequences which would result from holding such marriages void. It was hinted, however, that this comity giving effect to the lex loci, might not be applied to gross cases, such as incestuous marriages, which were repugnant to the morals and policy of all civilized nations. This comity has been carried so far⁵⁶ as to admit the legitimacy of the issue of a person who had bean divorced a vinculo for adultery, and who was declared incompetent to re-marry, and who had gone to a neighboring state where it was lawful for him to re-marry, and there married.⁵⁷