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 *85 labor, and displayed profound learning in their investigations on the subject. (a) (5.) The consent of parents and guardians to the marriage of minors is not requisite to the validity of the marriage. In (a) 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. Dr. Livingston, in his Dissertation, published in New Brunswick, in 1816, and confined exclusively to that point, maintained the negative side of the question. The Rev. Dr. S. E. Dwight has also, in his Hebrew Wife, a treatise published in 1836, maintained, with much biblical learning and great zeal, that the marriage of a deceased wife's sister was unlawful and incestuous under the Levitical law; and that the biblical law of incest was of general moral obligation, and binding on the whole gentile world. This is the adjudged law in England, and a marriage between a man and his deceased wife's sister is held to be incestuous and void. Hill v. Good, Vaugh. Rep. 302. Harris v. Hicks, 2 Salk. 548. Ray v. Sherwood, 1 Curteis, 173, in the arches court, and affirmed, on appeal, in 1837. 1 Moore, Privy Council, 395, 396. Shelfordon Marriage and Divorce, pp. 172, 178. It is said that marriage with the sister of a deceased wife is lawful in Prussia, Saxony, Hanover, Baden, Mecklenburg, Hamburg, Denmark, and most of the other Protestant states of Europe. In most Catholic countries such marriages are formally prohibited, but dispensations easily obtained. Hayward's Remarks on the Law regarding Marriage with the Sister of a Deceased Wife, London, 1845. In that pamphlet it is shown, upon very strong reason and authority, that the prohibitions in the Levitical law do not reach the case. It is not my object to meddle with that question; but such a marriage is clearly not incestuous nor invalid by the municipal law of New York, though it be unlawful in England and in some of the American states. In 1842, a proposition was made and discussed in the British House of Commons, for a law to legalize the marriage of widowers with their deceased wives' sisters, but it was rejected. In Virginia, in 1830, in the case of The Commonwealth v. E. & K. Perryman, marriage with a brother's widow was held illegal under the statute code, and it was judicially dissolved. 2 Leigh (Va.) 717. Act of 1792, R. C. Virginia, vol. i. 274. In Massachusetts, the marriage between a man and his deceased wife's sister was formerly lawful. (Parsons Ch. J., 6 Mass. 379.) And so it continues to be by the Genl. Sts. 1860, ch. 106. pp. 528, 529. The Rev. Doctor Mathews, of New York, in an able argument in favor of the lawfulness of marrying a deceased wife's sister, delivered before the general synod of the Reformed Dutch Church, in June, 1843, states, that in every state in the Union, except Virginia, such marriages are allowed to be lawful. But marriages of this kind, though prohibited by positive law in one state, would be regarded as valid in that and every other state, if made in a state or country where no such prohibition exists. The rule is, however, subject to this limitation, that if a foreign state should allow marriages clearly incestuous by the law of nature, they would not be allowed to have validity elsewhere. Greenwood v. Curtis, 6 Mass. 378. 1 A condition in a legacy or devise, restraining marriage generally is valid in respect to the testator's widow, but is not valid as to any other woman. Lloyd v. Lloyd, 10 E. L. & Eq. Rep. 139. New York, there was no statute provision in the case until 1830, and marriages were left without parental restraint to the freedom of the common law, and, consequently, with as few checks on the formation of the marriage contract as in any part of the civilized world. (b) The matrimonial law of Scotland and of Ireland is equally loose, (e) and so was the English law prior to the statute of 26 Geo. II. ch. 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. (d) 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 *86 the control of property. (e) Though the Roman law greatly favored marriages by the famous 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 (b) See infra, art 6, from p. 86, to p. 92, showing statute regulations in the several states as to marriage, and requiring the consent of parents and guardians; but they do not make void the marriage without that consent, and only impose penalties on the persons pronouncing the marriage without that consent. (c) Erskine's Inst. vol. i. pp. 89-91, (6th edit. 61.) M'Douall's Inst. vol. i. p. 112. 2 Addams, 375. 1 Ibid. 64. Shelford on Marriage and Divorce, p. 91. (d) In Brealy v. Reed, 2 Curteis, 833, in the consistory court of London, a marriage was pronounced null by reason of omission of the middle Christian name of the husband in the publication of bans, wilfully and knowingly with the consent of the parties, and for a clandestine purpose. (e) The statute of 4 Geo. IV. c. 76, which reënacted most of the provisions of the statute of Geo. II., punishes clandestine marriages by loss of property, but does not violently make void the contract, when some of the provisions of the statute are broken through. See 1 Addams, 28, 94, 479. Rex v. Inhabitants of Birmingham, 8 Barn. & Cress. 29, and infra, p. 90. In Wiltshire v. Wiltshire, Hagg. Eccl. vol. iii. p. 332, it was held, that a marriage by bans, where, by the consent of both parties, one of the Christian names of the man (a minor) was omitted for the purpose of concealment, was null and void under the statute. In England, filing a bill in chancery in behalf of an infant, makes her a ward of the court, and marrying such an infant without the consent of the court, is a contempt of the court in all concerned, and the contempt will not be discharged until a proper settlement be made for the wife. See this point well examined in Shelford on Marriage and Divorce, pp. 309–322. captivity, or defect of understanding. (a) Parental restraints upon marriage existed likewise in ancient Greece, (b) and they exist to a very great extent in Germany, (e) Holland, (d) and France. (e) The marriage of minors, under these European regulations, is absolutely void, if had without the consent of the father or mother, if she be the survivor; and the 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. (ƒ) The Roman lawyers * strongly inculcated the doctrine, that the very founda-* 87 tion 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. (a) This is the language equally of the common (b) and canon law, and of common reason. If the contract be made per verba de præsenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary, and which the parties (being competent as to age and consent) cannot dissolve, (a) Inst. 1, 10. Dr. Taylor's Elements of the Civil Law, 310–313. If the parent unreasonably withheld his consent, he might be compelled by the governor of the province, at the instance of the child, to give it. Dig. 23, 2, 19. (b) Potter's Greek Antiq. vol. ii. pp. 270, 271. (c) Heinic. Elem. Jur. Ger. lib. 1, sec. 138. Turnbull's Austria, vol. ii. ch. 7, says that the necessity of certificates of education, to warrant marriage, is a great impediment to the celebration of marriages. (d) Van Leeuwen's Com. on the Roman Dutch Law, p. 73. (e) Pothier, Traité Du Contrat de Mar. Nos. 321-342. Code Napoleon, Nos. 148160. Touiller, Droit Civil Français, tom. i. pp. 453-463. But a marriage in France, by a British subject, under the age of twenty-five, and with a French woman, is held valid in England, where there is no such restriction. At least the court would not allow the marriage to be impeached, when the marriage was solemnized according to the directions of an English statute. Lloyd v. Petitjean, 2 Curteis, 251. (f) Grotius, b. 2, ch. 5. sec. 10. (a) Dig. 35, 1, 15. b) Co. Litt. 33, a. Bracton, lib. 6, ch. 5, sec. 7. and it is equally binding as if made in facie ecclesiæ. (c)1 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 Act 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. (d) The only doubt enter (c) The Supreme Court of the United States, in Jewell v. Jewell, 1 How. U. S. 219, were equally divided in respect to the above paragraph or proposition in the text, and gave no opinion.2 The case came up on error from the Circuit Court in South Carolina. So, in the case of the Queen v. Millis, 10 Clark & Fin. p. 534, on appeal from Ireland to the House of Lords, the lords were equally divided on the same question. Lord Brougham, Lord Denman, Ch. J., and Lord Campbell being in favor of the validity of the marriage at common law, and Lord Ch. Lyndhurst, Lord Cottenham and Lord Abinger, against it. The question had been referred by the lords to the judges, and Lord Ch. Tindal, in behalf of the judges, gave their unanimous opinion against the validity of the marriage, and held, that, by the law of England, as it existed at the time of the Marriage Act, a contract of marriage per verba de præsenti was indissoluble between the parties themselves, and afforded to either of them, by application to the spiritual court, the power of compelling the solemnization of an actual marriage; but that such contract never constituted a full and complete marriage in itself, unless made in the presence and with the intervention of a minister in holy orders. The civil contract and the religious ceremony were both necessary to a perfect marriage by the common law. The question was most elaborately and learnedly discussed. Catherwood v. Calson, 13 Mees. & Wels. 261, S. P.3 (d) Bunting v. Lepingwel, 4 Co. 29. S. C. Sir F. Moore, 169. Jesson v. Collins, 6 Mod. 155. 2 Salk. 437, S. C. Dalrymple v. Dalrymple, 2 Hagg. Cons. 54, 64. Lautour v. Teesdale, 8 Taunt. 830. Fenton v. Reed, 4 Johns. 52. Londonderry v. Chester, 2 N. Hamp. 268. Rose v. Clark, 8 Paige, 574. State v. Patterson, 2 Ired. (N. C.) 346. Swinburne on Espousals, sec. 4, cited by Sir Wm. Scott, in Lindo v. Belisario, 1 Hagg. Cons. 232, and see, also, Swinburne on Wills, part 1, ch. 10, sec. 12, and Sir Wm. Scott's opinion in the above case; and in Dalrymple v. Dalrymple, supra, to the point in the text, that by the canon law, prior to or in the absence of any 1 In Turpin v. The Public Administrator, 2 Bradf. (N. Y.) 424, the learned surrogate of New York doubted whether a contract per verba de futuro, cum copula, constitutes a marriage in New York. And in Cheney v. Arnold, 15 N. Y. (1 Smith) 345, the Court of Appeals held that a contract to marry per verba de futuro, though followed by cohabitation, does not amount to a marriage in fact, and never constituted a valid marriage at common law. This decision may be supposed to settle the question in New York. It was approved and followed in Duncase v. Duncase, 10 Ohio (State), 181. But see Parsons on Contracts, vol. i. p. 560. The Court of Queen's Bench in Ireland pronounced for the validity of a marriage, in a case in which the bridegroom, who was a clergyman of the Established Church, had duly performed the ceremony, and without the presence of witnesses. Beamish v. Beamish, 5 Irish Com. Law 136. Reversed 9 H. of Lords Cas. 274. tained by the common law was, whether cohabitation was also necessary to give validity to the contract. 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 or adultery, when actual proof of the marriage is required. Illicit intercourse or concubinage will not raise any such legal presumption of mar civil regulations to the contrary, a private marriage, without solemnity, duly attested, and by mutual engagement or betrothment, was good and valid in law without confirmation, and without the intervention of a priest; and by the late statute of 6 and 7 Wm. IV. c. 85, sec. 20, marriages may be solemnized in places registered for the purpose, in the presence of some registrar and two witnesses, according to any forms and ceremonies at the pleasure of the parties. So the English Marriage Act of 1653 treated marriages as a civil contract, to be solemnized before a justice of the peace. It is very clear, that the marriage contract is valid and binding, if made by words de præsenti, though it be not followed by cohabitation. M'Adam v. Walker, 1 Dow. 148. Jackson v. Winne, 7 Wendell, 47. And it is equally clear, that a promise to marry, given and accepted, with subsequent cohabitation — subsequente copula and without any circumstances to disconnect the mutual promise from the cohabitation, and where there was no previous illicit connection, and marriage was really intended by the parties, is a valid marriage, if made between infants of the respective ages of fourteen and twelve. Shelford on Marriage and Divorce, pp. 29, 989, edit. London, 1841, and the authorities there cited. This is the rule in the Scotch law, though Lord Chancellor Brougham, in a case on appeal to the House of Lords, exceedingly regretted it. Honyman v. Campbell, 2 Dow & Cl. 265. The Scotch law on the formation of marriage is as loose as the common law on the subject. Many decisions in Scotland are cited to the point in Burge's Comm. on Colonial and Foreign Laws, vol. i. pp. 172, 173, 174. See, also, Bell's Principles of the law of Scotland, sec. 1506. Lord Stair's Institutions of the Law of Scotland, edit. by More, 1832, vol. i. pp. 25, 26, and note B. pp. 13, 14. Id. vol. ii. 444. Evidence of David Hume, in Dalrymple p. Dalrymple, 2 Hagg. Cons. App. pp. 54, 65. * Cohabitation, common reputation, &c. are received merely as evidence of marriage, and may be rebutted by other testimony. Clayton v. Wardell, 4 Comst. 230. Weatherford v. Weatherford, 20 Ala. 548. Parties who had lived together twenty years, and were husband and wife by common reputation, were recognized as such by the court, though no marriage ceremony had ever taken place. Hicks v. Cochran, 4 Edw. Ch. 107. Donnelly v. Donnelly, 8 B. Mon. 113. Caujolle v. Ferrie, 26 Barb. (N. Y.) 177. S. C. 23 N. Y. R. 90. Tummalty e. Tummalty, 3 Bradf. (N. Y.) 369. Grotgen v. Grotgen, 3 Bradf. (N. Y.) 373. Hyde 2. Hyde, 3 Bradf. (N. Y.) 509. Ferrié v. Public Administrator, 4 Bradf. (N. Y.) 28. Cunning ham v. Burdell, 4 Bradf. (N. Y.) 343. |