imposed by the policy of the forum alone, or by the policy of a few States merely, will not have the effect necessarily of avoiding a marriage between relations, valid where contracted. In order that the marriage shall universally be deemed invalid (though valid where contracted) the relationship must be so close as to condemn the union in all civilized countries, and to cause it to be considered in all Christian States as impious and contra bonos mores. It is generally agreed that the only marriages answering this description are those contracted between persons related by blood in the lineal ascending or descending line, and (in case of collateral relatives) between brother and sister.3

In case of persons related in more distant degree, the question whether their intermarriage is valid will in general depend upon the lex celebrationis of the marriage. If valid there, it will usually be held valid in every State in which it is called in question. And if it be absolutely void where contracted, it will in general be deemed void everywhere.

But if, where contracted, it is merely voidable by decree of court, and not void per se, the fact that the same marriage would be absolutely void if contracted in another State will not justify the courts of the latter State in pronouncing the parties not to be man and wife, even though they have since lived in the latter State, much less if they are domiciled in the State of the marriage. Such is the rule when the validity of the marriage is questioned in a collateral proceeding.

Thus, in Sutton v. Warren, a marriage was contracted in

2 See ante, § 73. If the question arises in the domicil, the policy of the forum (and domicil) may be held to be paramount to the lex celebrationis of the marriage.

3 Story, Coufl. L. § 114; Ross v. Ross, 129 Mass. 243, 247-248, 37 Am. Rep. 321; Com. v. Lane, 113 Mass. 458, 463, 18 Am. Rep. 509; Medway v. Needham, 16 Mass. 157, 6 Am. Dec. 131; Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343, 348-350; Van Voorhis v. Brintnall, 86 N. Y. 18, 26, 40 Am. Rep. 505; Hutchings v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164, 168; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319; State v. Ross, 76 N. C. 242, 22 Am. Rep. 678, 680–681.

4 Except in certain cases where the domicil is the forum. See ante, § 73. 5 10 Met. (Mass.) 451.

England, the domicil of the parties, between a man and his mother's sister. Such marriage was not void by English law prior to the statute of 6 Wm. IV. c. 54, but only voidable in the Ecclesiastical Court. The marriage took place before the statute. The parties removed to Massachusetts, about one year after the marriage, by the law of which State a marriage between such relatives was absolutely void. The wife, Ann Sutton, lent money to Warren on his note, which was not paid, whereupon the husband sued Warren upon the note; and objection being made that he was not the husband of Ann, the court held that the marriage, not being void in England but voidable only and not avoided, could not be attacked collaterally in Massachusetts by reason of the laws of that State.

• See Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435; post, § 78.

CHAPTER VI.

STATUS OF MARRIAGE.

§ 76. Dual Nature of Marriage. There are two senses in which the term marriage is familiarly used, both of which are essential to a true marriage, the one being preliminary to the other. These two essential elements of the legal idea of marriage are: (1) The contract of marriage, the agreement of the parties, the wedding ceremony; and (2) The state of life which is ushered in by that ceremony or agreement, the matrimonial union, or the marriage status. These elements, though both often denominated "marriage," are separate and distinct, and should be so treated. There can be no matrimonial union without a marriage contract; there can be no (valid) marriage contract without a matrimonial union resulting therefrom. Yet they are by no means one and the same. A failure to observe the distinction will cause, as it has already often caused, serious confusion and error.1

1 See Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 36. Thus we find the New York courts holding that a divorce is a proceeding in personam, and that it operates to annul the contract of marriage, instead of dissolving the status or union created by that contract, in which latter case the proceeding would be in rem, as is generally held. See post, §§ 87, 89 et seq. In Jones v. Jones, 108 N. Y. 415, 424, - a divorce case, the New York court says: "The Texas court did not acquire jurisdiction of the defendant by service of citation here. The contract of marriage cannot be annulled by judicial sanction any more than any other contract inter partes, without jurisdiction of the person of the defendant." The distinction between the contract of marriage and the resulting union or status is brought out in many of the cases. See Story, Confl. L. § 124 a, note (a); Brook v. Brook, 9 H. L. Cas. 193; Kinney v. Com., 30 Gratt. (Va.) 858; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683, 684; Campbell v. Crampton, 2 Fed. 417, 424; State v. Tutty, 41 Fed. 753, 758; Adams v. Palmer, 51 Me. 481, 483.

So far as the contract of marriage is concerned, it is an executed agreement between two persons who must be competent to contract, and is governed by the same general rules that control other executed contracts.2

But a marriage, in its complete sense, is much more than a contract. It is ushered in by the solemn compact of the parties, with the accompaniment of such formalities and ceremonies as the law may prescribe. The result of this contract is the immediate creation of a union for life between the parties. But the union itself is no more a contract than the ownership of land under a deed of conveyance is a contract. It is a status, a condition, which by their contract has become fastened upon the parties during their lives and in every country whither they may go, whether temporarily or permanently.

The creation, continuation, and dissolution of this relation constitute matters of deepest concern not only to the parties interested but to the State as well. The proper performance of the duties it imposes involves not only the highest happiness and welfare of the individuals immediately concerned, but also that of their offspring and of the countless generations to succeed them. To the State it offers the means of protecting its itizens from impurity and immorality, secures them the blessings of home and family, and creates a noble nursery for the commonwealth.

Nothing can be of greater importance or interest to the State than this relation, which, with its incident, the family, is justly deemed the foundation, corner-stone, and unit of the social order. It is not surprising therefore to find the State regarded almost as a party to the transaction, both in its inception and in its dissolution."

2 The proper law governing the contract of marriage will be considered post, §§ 77, 78.

See Hood v. State, 56 Ind. 263, 26 Am. Rep. 21, 24; People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260, 268; Ellis v. Ellis, 55 Minn. 401, 56 N. W. 1056, 1059; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 134; Gregory v. Gregory, 78 Me. 187, 57 Am. Rep. 792; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 36; Dunham v, Dunham, 162 Ill. 589, 44 N. E. 418. 35 L. R. A. 70, 79; O'Dea v. O'Dea, 101 N. Y. 23, 39 (dissenting opinion).

Not only will the State prescribe definitely the persons who may enter into the relation and the forms and solemnities with which it shall be ushered in, but it will likewise preside over its dissolution, not permitting a termination of it during the lives of the parties, save with its consent (through its courts) and for causes assigned by itself. Many of the peculiarities incident to the law regulating marriage and divorce are due to the fact that the State is thus a quasi party to the transaction and deeply interested in the proper performance of its obligations. There is perhaps no other private relation in which the State becomes, as it were, a third party."

Keeping the contractual element of marriage distinct from the status, we will examine (1) The "proper law" regulating contracts of marriage; (2) The "proper law" governing the marriage status or the matrimonial union that results from the contract.

§ 77. The Contract of Marriage Formal Validity. — By the contract of marriage, or marriage contract, is meant the solemn agreement of the parties to assume the relation of man and wife, the wedding ceremony, which constitutes the

vestibule to the matrimonial union.

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It is of course to be distinguished from a contract to marry, at least at the present day, when such contracts, even though accompanied by consummation, no longer constitute a marriage. The contract to marry is merely an executory contract, to be performed thereafter by marriage; while the marriage contract itself is an executed contract, performed at the same time and place at which it is entered into. The contract to marry may be performed elsewhere than where it is entered into. The contract to marry may be broken. The contract of marriage cannot be, though the rights and obligations springing from the marital

♦ Unless the relation of parent and child be excepted, to which the relation of marriage has been sometimes likened. See Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 36. But the relation of parent and child has its origin in the laws of nature and in municipal law, not in contract. Matrimony is more nearly analogous to the statutory relation of adopted parent and child, which, like marriage, begins with a quasi contract with the State, resulting in the creation of a status. See post, § 101.