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doubtless to be discouraged, and the law will willingly inflict penalties upon clergymen, magistrates, and all others who aid the parties in their unwise conduct, the penalty serving in a measure as indemnification to the parent or guardian; but experience shows that legislation cannot safely interpose much further.1
Under such statutes (which, however, vary in language and scope in different States), it has been held that if a minor has both parent and guardian, the guardian should consent in preference; though it might appear more proper to consider which has the actual care and government of the minor. One who has relinquished the parental control cannot sue for the penalty; but a father's unfitness is not pertinent to the issue of uniting his minor child in marriage without his leave, nor ground for accepting the mother's sole consent instead. In this class of statutes the minister or magistrate who has made himself amenable to the law cannot in general defend on the plea that he acted in good faith. The expression of consent is in some States made a prerequisite to granting the marriage license.2
§ 31. Legalizing Defective Marriages; Legislative Marriage. Defective marriages, we may further observe, have in some instances been legalized by statute; as where parties within the prohibited degrees of consanguinity or affinity have united. So with marriages before a person professing to be a clergyman or justice of the peace, but without actual authority. On principle, in fact, there seems no reason to doubt that any government, through its legislative branch, may unite a willing pair in matrimony, as well as pass general laws for that purpose; 8
N. H. 32; Kent v. State, 8 Blackf. 163; Askew v. Dupree, 30 Ga. 173; Fitzpatrick . Fitzpatrick, 6 Nev. 63; Adams v. Cutright, 53 Ill. 361; State v. Dole, 20 La. Ann. 378. The language of some statutes leaves the point in doubt as to whether marriage without the consent of parents renders the marriage void, or only subjects offending parties, including the person who performs the ceremony, to a penalty. But
the latter is, of course, to be presumed rather than the former.
1 See further, Schouler, Hus. & Wife,
2 Schouler, Hus. & Wife, § 36. The effort of the legislature is to exercise a salutary supervision by requiring a license to be taken out.
8 Brunswick v. Litchfield, 2 Greenl. 28; Moore v. Whittaker, 2 Harring. 50; Goshen v. Richmond, 4 Allen, 458;
unless as is sometimes found, the State constitution prohibits such enactments. But though legislative divorces are not unfrequent, a legislative marriage is something unknown, not to say uncalled for. And in this country, peculiar questions of fundamental constraint under a written constitution might arise, even where the cure only of a defective marriage was sought by the legislature; inasmuch as the intervening rights of third persons might thereby be prejudiced.1
§ 32. Restraints upon Marriage. The policy of restraining marriage is treated with disfavor by our law, which on the contrary seems disposed to encourage the institution, though not to the extent practised by some countries of openly promoting its observance, or forcing private inclination in the conjugal direction. Numerous cases, those particularly which construe the provisions of testamentary trusts, have laid it down that the general restraint of marriage is to be discouraged. Accordingly a condition subsequent, annexed by way of forfeiture to a gift, legacy, or bequest, in case the donee or legatee should marry, will be held void and inoperative, as a restraint upon marriage, and so as to both income and capi tal.2 But marriage and remarriage are differently viewed in this respect; and it is well settled that forfeiture by condition subsequent in case a widow shall marry again must be upheld. as valid, whether that widow be the beneficiary through her husband or some other person. Does the latter rule apply equally to widow and widower, woman and man? Upon full consideration the English chancery held a few years ago, on appeal (reversing the decision of the lower tribunal), that it does.3
1 Bishop, Mar. & Div. 5th ed. §§ 657659. As to the effect of a Texas statute, which relaxed old requirements in legalizing an irregular marriage, see Rice . Rice, 31 Tex. 174. See 47 & 48 Vict. c. 20, which legalizes the marriages of certain members of the Greek church.
1 As to the proof of a marriage and legal presumptions, see 1 Bishop, Mar. & Div. 5th ed. § 432 et seq.; Schouler, Hus. & Wife, §§ 38, 39; supra, § 29.
The latest English decisions, on the whole, do not strenuously resist these restraints upon marriage in testamentary trusts.1 And it is doubtful whether the rule discouraging restraint of marriage can extend to devises of land; though on principle there should be no distinction between devises and gifts or bequests in this respect.2
§ 32 a. Marriage in another State or Country. Both in Eugland and the United States, the general rule of law is, that marriage contracted elsewhere, if valid where it is contracted, is locally valid. And so strongly is the marriage institution upheld the civilized world over, that even though the marrying parties thereby evade the local law, this rule is locally upheld in both countries; unless, at all events, the local statute asserts local public policy to the extent of declaring such marriages void, or the marriage is one deemed "contrary to the law of nature as generally recognized in Christian countries." 8
The lower court was probably influenced by considerations which medical men adduce, showing that marriage is more essential to a man's continuous well-being than a woman's, and that a widow, on the whole, is less likely to have sufficient reason for marrying again than a man. But this argument, if sound, is perhaps far-fetched, and James, L. J., on appeal, treated the subject more from the aspect of equal rights, as between the sexes, in the disposal of property. No act of parliament or decision of a court, he observed, established any distinction here between the second marriage of man or woman, and he knew of no reason for making it.
1 It is held that a gift to one's widow on condition that she retire immediately into a convent is upon a good condition precedent. Duddy v. Gresham, 39 L. T. N. s. 48. Also, that it is a good condition subsequent which forfeits a gift to one's brother in case he marries "a domestic servant," or one of lower de
gree, degrading his own family. Jenner v. Turner, 29 W. R. 99.
2 Jones v. Jones, 1 Q. B. D. 279. And see Hogan v. Curtin, 88 N. Y. 162; Schouler, Wills, § 603.
8 Warrender v. Warrender, 2 Cl. & Fin. 488; Sutton v. Warren, 10 Met. 451; 157 Mass. 75, per Field, C. J. As where, for instance, parties go to another State to evade restrictions as to an infant's marrying age, or restrictions following divorce. Under the English "legitimacy declaration act" (21 & 22 Vict. c. 93) the marriage of a retired British officer to a Japanese woman in 1886, was held valid in Brinkley v. Attorney-General, 15 P. D. 76, as sufficiently a "Christian marriage," upon proof that in Japan marriage is monogamous, and excludes all other spouses. As to recognizing Ind an tribal marriages, see 76 Mich. 498; 97 Mo. 80. Cf. as to informal marriages, 155 Mass. 425; Meister v. Moore, 96 U. S. 76; supra, § 29.
EFFECT OF MARRIAGE; PERSON OF THE SPOUSE.
§ 33 Effect of Marriage; Order of Legal Investigation. When the parties to a lawful marriage have once completed the ceremony, or, as it is said, have executed the contract of marriage, they are admitted into the marriage relation, and their mutual rights and obligations become at once bounded, protected, and enforced by the general law of husband and wife. What that law is will constitute the topic of discussion in this and succeeding chapters of this part. We have already alluded to the confusion and uncertainty which exist at the present day, and particularly in many of the United States, in the law of husband and wife, owing to the transition period through which we seem to be passing from the marriage relation of the common law to that known to the civil law.1 Our subject will be most conveniently treated by taking up the common-law doctrine first, and thoroughly examining its principles; then passing to the modern or civil-law doctrine for discussion in like manner. First, then, the rights and disabilities of marriage on the coverture scheme; secondly, the rights and disabilities of marriage on the separate existence scheme, or with the innovations which equity and modern statutes have made.
But since these rights and disabilities have varied less with regard to the wife's person than in other respects, we may here investigate those general principles of the common law which concern the person of the spouse, once and for all.
§ 34. Person of the Spouse; Coverture Principle; Husband Head of Family. The general principle of coverture, as defined by Blackstone and other common-law writers, is this: that by marriage the husband and wife become one person in 1 See Introductory, §§ 4-8.
law; that is to say, the very being or legal existence of the woman is suspended during the marriage, or, at least, is incorporated and consolidated into that of the husband, under whose wing, protection, and cover she performs everything; and is therefore called in the law-French a feme covert, fæmina viro co-operta; is said to be covert-baron, or under the protection and influence of her baron or lord; and her condition during her marriage is called her coverture.1 For this reason the term applied to the relation of husband and wife in the old books is baron and feme. Upon this fundamental principle depend, at the common law, the general rights, duties, and disabilities of marriage. But this very definition shows inaccuracy, to say nothing of unfairness of application. Here are two conflicting notions: one that the existence of the wife is actually lost or suspended; the other that there is still an existence, which is held in subordination to the will of her lord and master, which last the word coverture fitly expresses. It will appear in fact that while some of the wife's disabilities seem based upon the one notion, others are based upon the latter, and probably more correct one. The wife's disabilities are deemed by Blackstone "for the most part intended for her protection and benefit." And he adds, by way of rhetorical period, "so great a favorite is the female sex of the laws of England!" a proposition which his commentators have gravely proceeded to dispute and dissect, and, it must be added, not without good success.2
The husband's right of dominion is therefore fully recognized at the common law. And never was the English doctrine, despite its failings, set forth in more terse and forcible language than in the words of Sir Thomas Smith: "The naturalest and first conjunction of two towards the making a further society of continuance is of the husband and wife, each having care of the family the man to get, to travel abroad, and to defend;
1 1 Bl. Com. 442; Co. Litt. 112; 2 Kent, Com. 129.
21 Bl. Com. 445, notes by Christian, Hargrave, and others. It is probable that Blackstone used this expression in
a strain of playful gallantry, not uncommon with lecturers. Even Chancellor Kent's observations are not free from suspicion. See 2 Kent, Com. 182, closing sentence at foot of the page.