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.
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.
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.
(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.
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.
1. The great philosophical poet of antiquity, who was, however, most absurd in much of his philosophical theory, but eminently beautiful, tender, and sublime in his poetry, supposes the civilization of mankind to have been the result of marriage and family establishments.
Castaque privatae veneris connubia laetaCognita sunt, prolemque ex se videre creatam:Tum genus humanum primum mollescere caepit.
Lucret. de Rer. Nat. lib. 6.
2. 2 Phillimore’s Rep. 19. 69.
3. Ash’s case, Prec. in Ch. 203. 1 Eq. Ca. Abr. 278. pl. 6. Ex parte Turing. 1 Ves. & Bea. 140. Turner v. Myers, 1 Haggard, 414.
4. Wightman v. Wightman, 4 Johns. Ch. Rep. 343.
5. Voet ad Pand. lib. 24. 2. 15. Toullier’s Droit Civil Francais, tom. 1. No. 501. 504. 506. 512. Reeve’s Domestic Relations 201. 207, Pothier’s Trait du Contrat de Marriage, No. 307, 308. 2 Haggard, 104. 246.
6. Ferlat v. Gojon, 1 Hopkins, 478.
7. Toullier, ibid. No. 515. 521.
Pothier, ibid. No. 310. 314. 1 Phillimore, 137. 2 Haggard, 243. 1 Day’s Rep. 111. Benton v. Benton.
8. Co. Litt. 33. a. 79. b.
10. Harg. Co. Litt. lib. 2. n. 45.
13. Cro. Eliz. 858. 1 Salk. 121.
14. Laws N.Y. 11th sess. ch. 24.
16. 4 Blacks. Com. 163, 164. This point was raised and discussed in Porter’s case, Cro. Car. 461, and while the court admitted the second marriage to be unlawful and void, yet they did not decide whether the statute penalty would attach upon such a case of bigamy.
17. Harg. Co. Litt. lib. 2. n. 48.
18. Barrington on the Statutes, p. 401.
20. Paley’s Moral Philosophy, b. 3. c. 6.
21. 2 Potter’s Greek Antiq. 264. Taylor’s Elem. Civil Law, 340-344.
22. Cic. de Orat. 1. 40. Suet. Jul. 52. Inst. 1. 10. b. ad fin. Taylor, ibid. 44-347. The more ancient laws of Rome, prohibiting divorces, were extremely praised by Dionysius of Halycarnassus, lib. 2.
23. 1 Potter’s Greek Antiq. 107. 2 Ibid. 267, 268, 269. Tacit. Ann. 12. sec. 4, 5, 6, 7.
24. Co. Litt. 235. a. Gibson’s Cod. 412. 1 Phillimore’s Rep. 201. 355.
25. 1Mitford’s Hist. of Greece, vol. vii. p. 374.
26. Burgess v. Burgess, 1 Haggard, 386. Such a connection was held in equal abomination by Justinian’s Code. Code 5. 8. 2.
27. Vaughan’s Rep. 206. 2 Vent. 9. S. C.
28. Doctor Taylor, in his Elements of the civil law, p. 314-389, has gone deeply into the Greek and Roman learning as to the extent of the prohibition of marriage between near relations, and he says, the fourth degree of collateral consanguinity is the proper point to stop at; that the marriage of first cousins is lawful, and the civil law properly established the fourth as the first degree that could match with decency.
29. 4 Johns. Ch. Rep. 343.
31. Gilbert’s Eq. Rep. 156.
32. Whether it be proper or lawful, in a religious or moral sense, for a man to marry his deceased wife’s sister, has been discussed by American writers. Mr. N. Webster, in his Essays, published at Boston in 1790, No. 26, held the affirmative; and it is made lawful by statute in Connecticut. Dr. Livingston, in his Dissertations, published at New Brunswick in 1816, and confined exclusively to that point, maintained the negative side of the question. It is not my object to meddle with that question; but such a marriage is clearly not incestuous or invalid by our municipal law.
33. Erskine’s Inst. vol. i. 89-91. McDouall’s Inst. vol. i. 112. 2 Addam’s Rep. 375. 1 Ibid 64.
34. The rigor of the act of Geo. II was somewhat softened by the new marriage act of 3 Geo. IV c. 75., and the provisions rendering void all marriages solemnized by license, by minors, without consent, was repealed, and marriages had by previous publication of banns were rendered valid, though there had been false names used in the publication of the banns. 1 Addam’s Rep. 28. 94. 479.
35. Inst. 1. 10. Pr. Taylor’s Elements of the Civil Law, 310-313.
36. Potter’s Greek Antiq. vol. ii. 270, 271.
37. Heinec. Elem. Jur. Gen. lib. 1. s. 138.
38. Van Leeuwen’s Cons. on the Roman Dutch Law, p. 73.
39. Pothier, Traite du Contrat de Mar. No. 321-342. Code Napoleon, No. 148–160. Toullier, Droit Civil Franc. tom, 1. 453-463.
40. Grotius, b. 2. c. 5. s. 10. Bracton, lib. 1. ch. 5. sec. 7.
41. 6 Mod. 155. 2 Salk. 137 S. C. Dalrymple v. Dalrymple, 2 Haggard, 54. La Tour v. Teesdale, 8 Taunton, 830. Fenton v. Reed, 4 Johns. Rep. 52.
42. 1 Salk. 119. 4 Burr. 2057. Doug. 171. The King v. Stockland, Burr. Sett. Cases, 509. Cunninghams v. Cunninghams, 2 Dow. 482. McAdarn v. Walker, 1 Dow. 148. Fenton v. Reed, 4 Johns. Rep. 2.
43. 1 Ersk. Inst. 91. 93. McDouall’s Inst. vol. i. 112.
44. Selden’s Uxor Ebraica, b. 2. c. l. 2 Potter’s Greek Antiq. 279. 283. Dr. Taylor’s Elem. 275. 278.
45. Droit Civil Francais, tom. 1. No. 494.
47. Reeve’s Domestic Relations, p. 196. 200. 290.
49. 2 N. Hamp. Rep. 268. 3 Marshall, 370.
50. De Conflictu Legum, sec. 8.
51. Buller’s N. P. 114. 2. Haggard, 443, 444. S.C.
52. Robinson v. Bland. 2 Burr. 1077.
55. 16 Mass. Rep. 157.
56. West Cambridge v. Lexington, 1 Pickering, 506.
57. By the French civil code, No. 63.; publication of banns is to precede marriage; and by the article No. 170, if a Frenchman marries in a foreign country, the same regulation is still to be observed; and yet, according to Toullier, Droit Civil Francais, tom. 1. No. 578. and note ib. the omission to comply with the prescribed publication does not render the marriage void, whether celebrated at home or abroad. But if the marriage by a Frenchman abroad, be within the age of consent fixed by the French code, though beyond the age of consent fixed by our law, it would seem, that, the marriage would not be regarded in France as valid, though valid by the law of the place where it was celebrated. The French code, No. 170, requires the observance by Frenchmen of the ordinances of that code, though the marriage be abroad, for personal laws follow Frenchman wherever they go. Toullier, Droit Francais, tom. 1. Nos. 118. and 576.