grounds, and expressly leave that undecided, as to Massachusetts.

Judge Reeve of Connecticut says, (Domestic Relations, p. 196,) "There is nothing in the nature of a marriage contract that is more sacred than that of other contracts, that requires the interposition of a person in holy orders, or that it should be solemnized in a church. Every idea of the kind, entertained by any person, has arisen wholly from the usurpations of the Church of Rome on the rights of the civilian. She claimed the absolute control of marriages, on the ground that marriage was a sacrament and belonged wholly to the management of the clergy. The solemnization of a marriage by a clergyman was a thing never heard of among primitive Christians, until Pope Innocent III. ordered it otherwise. The only ceremony in practice among them was, for the man. to go to the house where the woman dwelt, and in the presence of witnesses lead her away to his own house. It is a mere civil transaction, to be solemnized in such a manner as the legislature shall direct, whether by a clergyman or any other person." It is clearly prudent for all parties to this most important of all contracts, that the local regulations, whatever they may be, shall be complied with, that no question of its validity may arise.

It is a well settled, general principle of law, that a marriage, valid by the local law of the place of its celebration, though the parties be but transiently there, and though the marriage would be invalid by the law of their domicil, and even though there contracted in express and intentional evasion thereof, is good everywhere. Story, Conflict of Law, sections 79-81, and cases cited. See also, Medway vs. Needham, 16 Mass., 157; Putnam vs. Putnam, 8 Pick., 433. Since the decision of the two cases last cited, this rule has been changed in Massachusetts, by the enactment of a statute, providing substantially that when any resident of the State shall, for the purpose of contracting marriage contrary to Massachusetts law, go abroad, with the intent to return after having the marriage solemnized in another State or country, it shall there be void. It would, probably, be competent for a legis

lature to abolish common law rule altogether, and refuse to recognize any foreign marriages, except such as conform in contract and ceremonial to its own regulations. Such a provision, however, as to persons domiciled in the foreign country at the time their marriage was solemnized, would be not only inconvenient and oppressive upon the individuals specially interested, but a violation of that comity which States and nations owe to each other.

"No peculiar ceremonies are requisite, at common law, to the valid celebration of a marriage. The consent of the parties is all that is required, and that consent is all that is required by natural or public law. If the contract be made by word of present and effective agreement, and remains without cohabitation, or by an agreement to take effect in the future and be followed by consummation, it amounts to a valid marriage, in the absence of all civil regulation to the contrary; which the parties cannot dissolve, and which is equally binding as if made with special formalities." 2 Kent, 53.

3. "Between a man and woman of sound mind." Persons of unsound mind are incapable of making a valid marriage

contract.

The marriage would be void if one of the parties was at the time insane from delirium tremens, or were so drunk as to be incapable of entering into an ordinary contract.

But while such a marriage is void, "the existence and extent of the mental unsoundness and how far it may be sufficient, by the 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." Until the question is settled by a judicial tribunal, it must be left in uncertainty, whether the relation of husband and wife lawfully exists. It is quite manifest, that such a question should be put finally and satisfactorily at rest by proper judicial investigation. The question made in such cases is, whether the mind is unsound and deranged, to such an extent as to disqualify the party from conducting himself with personal safety to himself and others, and from properly

managing and disposing his own affairs and discharging his relative duties.

4. The parties must be of the requisite age. The age of consent, by the common law of the land, is fixed at fourteen in males, and twelve in females. The law presumes that

parties at that age have sufficient discretion for such a contract. A marriage, previously contracted, may be disavowed by the parties when they arrive at that age; or, if one of them was within that age, they will each reciprocally have the right of such disavowal when the one, who was under age, shall have reached the age of consent.

5. They must be capable of contracting marriage generally. For example: no person can marry while another husband or wife is living. Such a marriage is, at the common law, null and void. Bigamy is an indictable offence in most, if not all, the States of the Union. In some of the States, statutes have been passed, providing that the absence of one of the parties for a prescribed term of years shall prevent one, marrying under the supposition that the absent one is dead, from being exposed to the penalties of bigamy. Seven years absence is the longest period prescribed. In New York the term is five years, and in Ohio, three.

There are also prohibitions consequent upon divorce, which sometimes prohibit the guilty party from again marrying.

6. Incapacity of the parties to contract with each other, arising out of affinity or consanguinity; also statute disabilities, arising out of color, and disabilities annexed by the laws of some countries to divorces, whereby the guilty party is incapable of marrying the particeps criminis, render marriages in such cases void.

7. Physical impotence, in all cases, renders a marriage voidable.

SECTION 2.

Who may marry, and what marriages are void.

A void marriage is one that is valid for no legal purpose, and the invalidity of which may be relied upon in any question arising between any parties, and whether the question of

marriage arises directly or incidentally. On the other hand, a marriage is said to be voidable, when it can only be enquired into by a proceeding instituted directly for that purpose, which must be prosecuted during the life time of both of the parties.

Marriages between persons nearly related by consanguinity are now deemed to be, in a certain sense, a violation of the physical laws of nature, and tending to the deterioration of the race. This impediment is of universal force, throughout christendom. It rests, however, quite as much upon the liability that marriage between near relatives will impair the concord of families, and interfere with the purity, harmony, and freedom, of domestic intercourse, as upon the reason just given. What degrees of affinity or consanguinity should prevent parties from marrying each other, is a question upon which there has been great diversity of opinion, and in its discussion much learning has been expended.

In the reign of Henry VIII., a statute was passed, which recited, in its preamble, "that the court of Rome, for their lucre, had invented other prohibitions than God's law admitted, the dispensation whereof they always reserved to themselves, as in forbidding marriage in kindred or affinity between cousins german, and so on to the fourth degree, &c.," and then enacts, that all persons may lawfully marry, who are not prohibited by God's laws; and that no revision or prohibition, (God's law only excepted,) shall trouble or impeach any marriage without the Levitical degrees. learning upon this subject has always been, in England, quite voluminous, but of little use in this country; the whole subject being regulated in most, if not all, the States, by statute provisions, which are quite simple and easily understood. Those who desire to pursue the subject farther will find it thoroughly treated in "Bishop on Marriage and Divorce," and quite sufficiently, for most purposes, in Kent's 26th Lecture. See also "Reeves' Domestic Relations," Chapter XVI.

The

SECTION 3.

Settlements in Anticipation of Marriage.

The statutes of the different States have greatly changed, in many of them, the property relations of husband and wife. But it is still necessary, if the wife and her friends desire that she shall be independent of her husband in the management of property and estate, and in the disposal thereof by will, that an ante-marriage settlement shall be entered into, for the purpose of accomplishing this result.

These may, indeed, be made after marriage, unless the rights of creditors interfere; but they are usually made be-fore, and are then entirely independent of, and unaffected by, the claims of creditors. The method is, to place the property of the wife, or such portion thereof as it is desired to set apart for her special benefit, under the control of trustees, who are to manage it independently of the husband; and provision is sometimes made for the issue of the marriage. Such contracts have been often decreed in chancery, although the contracting parties were minors; probably, upon the ground that, as it is within the power of minors to make the principal contract of marriage, they ought to be permitted, under the supervision of a court of equity, to enter into any proper agreements which are incidental thereto. Such an agreement should bind the husband, to unite with his wife in the execu tion of any proper papers necessary to the conveyance of her estate, to allow her freely to make a will, stipulating that he shall conform to the provisions thereof. It may properly contain provisions relating to any future property that may come to her during coverture, and as to all matters which the parties desire to regulate. Specimen forms of such contracts

are hereto subjoined.

SECTION 4.

Of Divorce-General Principles.

We have stated that a marriage contract, duly entered into, between parties competent to contract marriage with each