Page:Encyclopædia Britannica, Ninth Edition, v. 15.djvu/596

Rh 5(58 M A R R I A G E of the matter within those localities.&quot; Some of the States have extended the ages below which marriage cannot take place. The common law of the States is assumed to be that &quot; a contract per rerba dep resenti, or per verba defuturo cum copula, constitutes a complete marriage,&quot; Conditions, however, may be imposed by the various State legislatures, and as to these the rule has established itself in American jurisprudence that &quot; a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statu te contains express words of. nullity.&quot; Thus in Pennsylvania, where a statute provided that all marriages &quot;^should be solemnized before twelve witnesses,&quot; marriages not so celebrated were nevertheless held to be good. In New Hampshire justices and ministers of the gospel are authorized to solemnize marriage, and all other persons are forbidden to do so under penalties ; yet a marriage by consent, as at common law, without justice or minister, has been held valid. On the other hand, under a very similar statute in Massachusetts, it was held that &quot; parties could not solemnize their own marriage, &quot; and that a marriage by mutual agreement, not in accordance with the statute, was void. Bishop regards this as an isolated exception to the general course of the decisions. So when State legislation requires any particular form to be used the want thereof only invalidates the act if the statute expressly so enacts. Many of the State codes inflict penalties on ministers or justices for celebrating the marriage of minors without the consent of the parents or guardians. The original law as to prohibited degrees has been considerably modified in the States. The prohibition of marriage with a deceased wife s sister is said by Bishop to be all but unknown in the United States, Virginia apparently being the only one where it is still retained. Some writers apply the term legislative marriages to cases in which the State by enactment confirms a marriage which was void for some defect. Questions sometimes arise as to whether such enactments are within the constitution of the State. France. Articles 144-226 of tlie Code Napoleon prescribe the qualifications and conditions of marriage. The man must be eighteen and the woman fifteen years of age. A son under twenty- five, and a daughter under twenty-one, cannot marry without consent of the father and mother, or of the father only if they disagree, or of the survivor if one be dead. If both are dead grand- lather and grandmother take their place. A man after twenty-five nnd a woman after twenty-one are still bound formally to ask the consent of their parents ; until the age of thirty and twenty-five respectively this request must be repeated twice, and after the third application parties are at liberty to marry without such consent. Even after the age of thirty, formal notice must be served on the parents or grandparents one month before marriage. If neither parents nor grandparents be alive, parties under twenty-one require the consent of the family council. These rules apply to natural children when affiliated ; those not affiliated require the consent of a specially appointed guardian. Marriage is prohibited between nil ascendants and descendants in the direct line, and between persons related by marriage in the same line, between brother and sister, between uncle and niece, and brother-in-law and sister-in- law. Before the solemnization of marriage banns are required to be published on two distinct Sundays, containing the names, occupa tions, and domiciles of the parties and their parents. The marriage cannot take place until three days after the second publication, and if a year is allowed to elapse fresh banns must be put up. On the. day appointed by the parties, and in the parish to which one of them belongs, the marriage is celebrated by the civil officer or registrar reading over to them the various necessary documents, with the chapter of the code relating to husband and wife, receiving from each a declaration that they take each other for husband and wife, and drawing up the act of marriage. All this has to be done in the presence of four witnesses. Marriages contracted abroad between French subjects or between French subjects and foreigners are valid in France if celebrated according to fhe forms of the foreign law, provided the French con ditions as to banns and consent of parents have been observed. International Law. In the &quot;conflict of laws&quot; on the subject of marriagn, it has been well settled that the lex loci governs. If the marriage is valid by the law of the country where it is celebrated it is recognized as valid everywhere ; if invalid there it is invalid everywhere. &quot;This rule,&quot; says Story, &quot;has received the most deliberate sanction of the English and American courts and of foreign jurists.&quot; The most prominent, if not the only known exceptions, Story considers to be marriages (1) involving incest or polygamy, or (2) forbidden by the public law of a country from motives of policy, and (3) marriages celebrated in a foreign country under circum stances which impose on the parties the law of their own country. Westlake (Private International Law, chap, iv.) lays it down as in dispensable to the validity of a marriage that the lex loci should be satisfied in respect of forms, consent of parents and guardians, ami capacity of the parties. The law of the parties domicile should also be satisfied as to capacity unless when it imposes incapacity of a penal nature unknown to the lex loci. Story, in reference to the first of the .three exceptions alluded to above, attempted to set up &amp;lt;i clear and just moral difference between marriages that are incestuous by the law of nature and those that are so by the municipal law of particular States only, with more particular reference to consan guinity and affinity. &quot; It would be a strong point to put that a marriage perfectly valid between a man and the sister of his former deceased wife in New England would be held invalid in Virginia or England, even though the parties formerly belonged to or were born in the latter country or State. But, as to persons not so belonging, it would be of the most dangerous consequence to suppose that the courts of either of them would assume the liberty to hold such marriages a nullity merely because their own jurisprudence would not in a local celebration of marriage therein uphold it.&quot; This position has been expressly disavowed by the English courts. In Brook v. Brook it was held that an Englishman s marriage, with his deceased wife s sister during a residence in Denmark where the union is lawful is invalid in England. In Hyde v. Hyde in the English divorce court it was held that a marriage contracted in a country where polygamy is lawful between a man and a woman who profess a faith which allows polygamy is not a marriage as understood in Christendom ; and, although it was a valid marriage by the lex loci, and at the time when it was contracted both the man and the woman were single and competent to contract marriage, the court will not recognize it as a valid marriage in a matrimonial suit. The difference in the law of divorce in different countries produces many complications of this kind. It appears that a divorce of an English marriage abroad for cause not recognized in England as ground for a divorce will be upheld in England if the parties were domiciled at the time of the divorce in the foreign state ; otherwise not. Com pare also the French rule as to marriages of French subjects in foreign countries. The too frequent consequence of these variances is that the same persons are held married in one country and unmarried in another, while their children are legitimate in one country and illegitimate hi another. There is no subject in relation to which the establishment of a common code for all civilized nations is more urgently required. Besides true marriage, with which we have been exclusively dealing hitherto, inferior forms of union have from time to time been recognized, and may be briefly noticed here. These have all but disappeared from modern society, depending as they do on matri monial restrictions now obsolete. The institution of slavery is a fruitful source of this kind of debased matrimony. In Roman law no slave could contract marriage whether with another slave or a free person. The union of male and female slaves (coontubefnium) was recognized for various purposes ; a free woman entering into a union with a slave incurred under the S. C. Claudianum the forfeiture of her own liberty ; but the bondwoman might be the concubine of a freeman. In the United States, where slavery was said to be regulated by the prin ciple of the civil law, the marriage of slaves was so far recognized that on emancipation complete matrimony took effect and the children became legitimate without any new ceremony. Such at least is the purport of the more recent decisions. In Roman law no legal marriage could be contracted unless there was conmibium between the parties. Originally there was no con- nubium between plebs and patricians, and the privilege was conceded after a long struggle by the Lex Canuleia. In later times Latini and Peregrin i were excluded from connubium except where the right had been expressly conferred. The great matrimonial law of the early empire (Lex Julia et Papia Poppa?a) introduced restrictions depending on the condition ot the parties which later legislation extended and perpetuated. Senators under that law were forbidden to marry freed women or women of inferior rank, and the husband of a freedwoman becoming a. senator was set free from his marriage. In the canon, law 1 new restrictions were developed. Persons who 1 The restrictions are enumerated in the following lines : Error, Conditio, Votum, Cognatio, Crimen, Cultus Disparitas, Vis, Ordo, Ligamen, Honestas, yEtas, Affinis, si Clandestinus et Impos, llaptave sit imilier nee parti reddita tutre.