The American Cyclopædia (1879)/Marriage

MARRIAGE, in law, the conjugal union of one man with one woman. In all Christian communities the marriage relation exists, and is considered as the most solemn of contracts; and excepting in Protestant countries, it is regarded as a sacrament. In England, although not a sacrament of the church, it is not only celebrated as a religious ceremony, but until very recently it fell almost exclusively under the cognizance of the ecclesiastical courts.

Since the statute 20 and 21 Victoria, c. 85, however, the new court of probate and divorce has exercised some of the functions heretofore belonging to the ecclesiastical courts, together with some others, especially in the matter of divorce, which are quite new in English law. In the United States marriage is, by law, only a civil contract; magistrates, equally with clergymen, have a right to solemnize it; but it is the prevailing practice of the country to have it performed by a clergyman, and attended with religious ceremonies. One very grave question remains in a state of singular uncertainty; it is; What is necessary to constitute a complete and valid marriage? or rather, are the ceremonies and forms, or any of them, which are indicated by law or are customarily used for the solemnization of marriage, indispensable, or is the mere consent of the parties sufficient? That such a question as this should be unsettled both in England and in this country may well occasion surprise. But the true explanation of the mystery is, we apprehend, that very few persons have trusted to their own mere consent for the validity of their marriage, and the question has therefore very seldom come directly before the courts. Recently, however, this precise question has passed through the English courts. It came first before the court of queen's bench in Ireland, upon a trial for bigamy. The defendant was found guilty, and then, the first of the marriages not having been solemnized according to the direction if not requirement of law, the question arose whether it was so complete and perfect as to make the crime of bigamy possible. There were four judges, and they were equally divided. The chief justice then (against his opinion) joined pro forma with the two who thought the marriage valid, and the crime of bigamy committed, for the purpose of having a decision by a majority, from which an appeal could be made to the house of lords in England. On appeal the question of the validity of the marriage by mere consent was fully argued by the ablest counsel in England before the lords, and the six law peers gave their opinions severally, each at great length; and they were equally divided, Lords Brougham, Denman, and Campbell being in favor of the validity of the marriage at common law, and Lords Lyndhurst, Cottenham, and Abinger against it. This equal division affirmed the judgment, and the defendant was sentenced. Almost at the same time, by an odd coincidence, the same question came before the supreme court of the United States, and Chief Justice Taney, in deciding the case (on other grounds), said: “Upon this point the court is equally divided, and no opinion can be given.” Nevertheless, the steady tendency of American decisions is in the direction of the conclusion reached by Chancellor Walworth (Rose. Clark, 8 Paige, 574), “that any mutual agreement between the parties to be husband and wife in presenti, especially where it is followed by cohabitation, constitutes a valid and

binding marriage, if there is no legal disability on the part of either to contract matrimony;” and such we believe to be the law. (For marriages void or voidable for fraud, duress, or other cause, see .)—Contracts to marry at a future time are recognized by law, and the rules of law in relation to them are in some respects peculiar. The promises must be reciprocal, and a woman is bound by such a contract as much as a man. Nor is there anything in the law to prevent an action by the man for a breach of this contract; but such actions are not common, and would not be favored by court or jury. The action may be brought by an infant, but not against one. The very words, time, and manner of the promise are not often provable, and are never indispensable; for precise and direct testimony to the promise is not demanded. Indeed, courts have, in some instances at least, gone quite far enough in instructing or permitting a jury to infer a promise of marriage from rather slight indications. In general, however, language used to third persons expressive of a purpose, or even a promise, to marry the plaintiff, does not prove this promise, unless it was addressed to a parent or to one who stood in the place of a parent. This contract, like every other, may be on condition; and if the condition be reasonable, the law will respect it, and will not sustain an action on the promise unless the condition be performed. The defences to such an action are, generally, either a denial of the promise, or if that be proved, anything which would make the marriage unlawful. But a previous and existing marriage of the defendant, although it would have made his marriage with the plaintiff illegal and void, would not be a defence against this action, if it were unknown to the plaintiff when the agreement to marry was made by her. The defence most usually relied upon is a denial of the promise; and after that, the bad character of the plaintiff. If this be made out, it is a sufficient defence; but if it be attempted and fails, the attempt may be regarded by the jury as a ground for increasing the damages against the defendant. If the defence be a specific criminal act, it must be proved specifically. If it be general bad character, evidence of bad reputation is receivable. Neither specific bad conduct nor general bad character constitutes a defence, if it was known to the defendant when he made his promise; although, even then, it might be considered in mitigation of damages. There are decisions for and against permitting the fact of seduction to be received in evidence in an action for breach of contract to marry, for the purpose of swelling the damages. But it generally finds its way into the case; and the question of damages is in this case, more than in most others, entirely within the discretion of the jury. The action does not survive to the representative of a deceased promisee, nor can it be maintained against the representative of a deceased promisor.—Contracts in restraint

of marriage are wholly void, by the policy of the law. Thus no action can be maintained on any promise or obligation not to marry; as not to marry any woman but the promisee; or by a widow not to marry again; or a promise not to marry within six years. There is also a class of contracts which, from the frequency with which they appear in English law books, would seem to be not uncommon in that country, and which are called “marriage brokerage (sometimes brocage) contracts.” They are, in general, contracts for the payment of money or transfer of property to some person, by way of compensation for his or her procuring a marriage for the party paying. Such a contract is void on grounds of morality and the public good, without any reference to the expediency or propriety of the marriage itself.—The matrimonial connection variously designated in the laws of the first Christian emperors and the decrees of some early councils as concubinatus and licita consuetudo, was considered by the Roman Catholic church to be a real marriage, though not celebrated with the same solemnity nor attended with the same civil consequences as a contract recognized by both the civil and ecclesiastical courts. It is what in modern times is called “a marriage of conscience,” and what ancient jurists termed semi-matrimonium. It is still called in Germany Halbehe, where the name of half-wife, Halbweib, is bestowed on a woman to whom, though a real wife, the husband does not convey his rank. This condition responds to that of the semi-uxor of the canonists, who also described such women as uxores sine dote minus solemniter ductæ. This sort of union, though discountenanced by the Roman Catholic church, was held, when contracted seriously, to be indissoluble. Hence she would not tolerate temporary unions of this kind. Thus, the 17th canon of the first council of Toledo (400) excommunicates all who, having a lawful and acknowledged wife (uxor), presume to have also a concubine; while it admits to communion the man who is contented to live for ever with a wife of inferior rank. The canon merely enforced monogamy. (See .)