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parties to a marriage, that, of course, is to be distinguished from their marriage, which may take place without any property regulation whatever.1

We are, then, to consider marriage, not as a contract in the ordinary acceptation of the term, but as a contract sui generis, if indeed it be a contract at all, as an agreement to enter into a solemn relation which imposes its own terms. On the one hand discarding the unwarranted dogmas of the Church of Rome, by which marriage is elevated to the character of a sacrament, on the other we repudiate that dry definition with which the lawgiver or jurist sometimes seeks to impose upon the natural instincts of mankind. We adopt such views as the distinguished Lord Robertson held.2 And Judge Story observes of marriage: "It appears to me something more than a mere contract. It is rather to be deemed an institution of society founded upon the consent and contract of the parties; and in this view it has some peculiarities in its nature, character, operation, and extent of obligation, different from what belongs to ordinary contracts." 3 So Fraser, while defining marriage as a contract, adds in forcible language: "Unlike other contracts, it is one instituted by God himself, and has its foundation in the law of nature. It is the parent, not the child, of civil society." "4 And we may add that a recent American textwriter, of high repute upon the subject, not only pronounces for this doctrine, after a careful examination of all the authorities, but ascribes the chief embarrassment of American tribunals, in questions arising under the conflict of marriage and divorce laws, to the custom of applying the rules of ordinary contracts to the marriage relation.5

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§ 14. Marriages void and voidable. A distinction is made at law between void and voidable marriages. This distinction, which appears to have originated in a conflict between the English ecclesiastical and common-law courts, was first announced

1 Lord Stowell, in Lindo v. Belisario,

1 Hag. Con. 216; 1 Bishop, Mar. & Div.

5th ed. § 14.

4 1 Fraser, Dom. Rel. 87.

5 1 Bishop, Mar. & Div. 5th ed. § 18. And see Dickson v. Dickson, 1 Yerg.

2 Duntze v. Levett, Ferg. 68, 385, 110, per Catron, J.; Ditson v. Ditson,

397; 3 Eng. Ec. 360, 495, 502.

3 Story, Confl. Laws, § 108, n.

4 R. I. 87, per Ames, C. J.

in a statute passed during the reign of Henry VIII.; and it is also to be found in succeeding marriage and divorce acts down to the present day. The distinction of void and voidable applies, not to the legal consequences of an imperfect marriage, once formally dissolved, but to the status of the parties and their offspring before such dissolution. A void marriage is a mere nullity, and its validity may be impeached in any court, whether the question arise directly or collaterally, and whether the parties be living or dead. But a voidable marriage is valid for all civil purposes until a competent tribunal has pronounced the sentence of nullity, upon direct proceedings instituted for the purpose of setting the marriage aside. When once set aside, the marriage is treated as void ab initio; but unless the suit for nullity reaches its conclusion during the lifetime of both parties, all proceedings fall to the ground, and both survivor and offspring stand as well as though the union had been lawful from its inception. Hence we see that while a void marriage makes cohabitation at all times unlawful, and bastardizes the issue, a voidable marriage protects intercourse between the parties for the time being, furnishes the usual incidents of survivorship, such as curtesy and dower, and encourages the propagation of children. But the moment the sentence of nullity is pronounced, the shield of the law falls, the incidents vanish, and innocent offspring are exposed to the world as bastards; and herein is the greatest hardship of a voidable marriage. One feature in much of our modern marital legislation is the increasing favor shown to innocent parties who were misled; where the man or the woman or both of them acted in good faith, civil as well as criminal consequences are guarded against; and children innocently begotten before the disability was discovered in fact, are treated as legitimate offspring.2

The old rule is that civil disabilities, such as idiocy and fraud, render a marriage void; while the canonical impediments, such as consanguinity and impotence, made it voidable only. This test was never a clear one, and it has become of

1 1 St. 32 Hen. VIII. c. 38. See 1 Bishop, Mar. & Div. 5th ed. § 108 et

seq.

2 See e. g. the "Enoch Arden "Statutes cited in Stimson's Am. Stat. Law, § 6116.

little practical consequence at the present day. Statutes both in England and America have greatly modified the ancient law of valid marriages, and it can only be affirmed in general terms that the legislative tendency is to make marriages voidable rather than void, wherever the impediment is such as might not have been readily known to both parties before marriage; and where public policy does not rise superior to all considerations of private utility. Modern civilization strongly condemns the harsh doctrine of ab initio sentences of nullity; and such sentences have now in general a prospective force only, in order that rights already vested may remain unimpaired, and, still more, that children may not suffer for the follies of their parents.1 As for availing one's self of a voidable marriage as well as in divorce, it may be asserted as a general maxim that the party should be prompt to act when he has his right and knows it, and that he should also seek to enforce his rights with good faith and honor on his own part.2 Whenever or wherever an innocent party finds one's self entrapped into a void or voidable marriage, cohabitation should cease and the separation should be instant and absolute.

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§ 15. Essentials of Marriage. We shall consider in this chapter that act by which parties unite in matrimony, for to this the term "marriage" is most frequently applied. It may be stated generally that, in order to constitute a perfect union, the contracting parties should be two persons of the opposite sexes, without disqualification of blood or condition, both mentally competent and physically fit to discharge the duties of the relation, neither of them being bound by a previous nuptial tie, neither of them withholding a free assent; and the expression of their mutual assent should be substan

1 Shelf. Mar. & Div. 154; Ib. 479484; 1 Bl. Com. 434; 1 Bishop, Mar. & Div. 5th ed. §§ 105-120. See Stat. 5 & 6 Will. IV. c. 54; 2 N. Y. Rev. Sts. 139, § 6; Mass. Gen. Sts. c. 106, § 4; Harrison v. State, 22 Md. 468; Bowers v. Bowers, 10 Rich. Eq. 551; Pingree v. Goodrich, 41 Vt. 47; Divorce, post. Held contra as to the marriage of a negro and white person. Carter v.

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tially in accordance with the prescribed forms of law. are the essentials of marriage. Hence we are to treat of the following topics in connection with the essentials of a valid marriage: first, the disqualification of blood; second, the disqualification of civil condition; third, mental capacity; fourth, physical capacity; fifth, the disqualification of infancy, which in reality is based upon united considerations of mental and physical unfitness; sixth, prior marriage undissolved; seventh, force, fraud, and error; eighth, the formal celebration of a marriage, under which last head may be also included the consent of parents or guardians, not to be deemed an essential, except in conformity with the requirements of the marriage celebration acts. These essentials all have reference solely to the time, place, and circumstances of entering into the marriage relation, and not to any subsequent incapacity of either party.

16. Disqualification of Blood; Consanguinity and Affinity.And, first, as to the disqualification of blood. On no point have writers of all ages and countries been more united than in the conviction that nature abhors, as vile and unclean, all sexual intercourse between persons of near relationship. But on few subjects have they differed more widely than in the application of this conviction. Among Eastern nations, since the days of the patriarchs, practices have prevailed which to Christian nations and in days of civilized refinement seem shocking and strange. The difficulty then is, not in discovering that there is some prohibition by God's law, but in ascertaining how far that prohibition extends. This difficulty is manifested in our language by the use of two terms, "consanguinity" and "affinity;" one of which covers the terra firma of incestuous marriages, the other offers debatable ground. The disqualification of consanguinity applies to marriages between blood relations in the lineal, or ascending and descending lines. There can be but one opinion concerning the union of relations as near as brother and sister. The limit of prohibition among remote collateral kindred has, however, been differently assigned in different countries. The English canonical rule is that of the Jewish law which protested against the promiscuous practices of other primitive peoples.

The Greeks and Romans recognized like principles, though with various modifications and alterations of opinion. But the Church of the Middle Ages found in the institution of marriage, once placed among the sacraments, a most powerful lever of social influence. The English ecclesiastical courts made use of this disqualification, extending it to the seventh degree of canonical reckoning in some cases, and beyond all reasonable bounds. So intolerable became this oppression that a statute passed in the time of Henry VIII. forbade these courts thenceforth to draw in question marriages without the Levitical degree, "not prohibited by God's law." 2 Under this statute, which is still essentially in force in England, the impediment has been treated as applicable to the whole ascending and descending line, and further, as extending to the third degree of the civil reckoning inclusive; or in other words, so as to prohibit all marriages nearer than first cousins. Archbishop Parker's table of degrees, which recognizes these limits, has been, since 1563, the standard adopted in the English ecclesiastical courts. The statute prohibition

1 In some Roman Catholic countries. -e. g. Portugal-the marriage of first cousins is still pronounced incestuous. See Sottomayor v. De Barros, L. R. 2 P. D. 81; L. R. 3 P. D. 1.

2 Stat. 32 Hen. VIII. c. 38. See 1 Bishop, Mar. & Div. 5th ed. §§ 106, 107; 2 Kent, Com. 82, 83; Shelf. Mar. & Div. 163 et seq.; Wing v. Taylor, 2 Swab. & T. 278, 295.

81 Bishop, Mar. & Div. 5th ed. § 318; Butler v. Gastrill, Gilb. Ch. 156. According to this table,

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