which includes the reciprocal duties of husband and wife;
or, as most of our elder law books call them, of baron and feme.
In the consideration of which I shall in the first place enquire,
how marriages may be contracted or made; shall next point out
the manner in which they may be dissolved; and shall, lastly,
take a view of the legal effects and consequence of marriage.
I.
civil contract. The holiness of the matrimonial state is left entirely
to the ecclesiastical law: the temporal courts not having
jurisdiction to consider unlawful marriages as a sin, but merely
as a civil inconvenience. The punishment therefore, or annulling,
of incestuous or other unscriptural marriages, is the province of
the spiritual courts; which act pro salute animae[a]. And, taking
it in this civil light, the law treats it as it does all other contracts;
allowing it to be good and valid in all cases, where the parties at
the time of making it were, in the first place, willing to contract;
secondly, able to contract; and, lastly, actually did contract, in
the proper forms and solemnities required by law.
facit nuptias," is the maxim of the civil law in this
case[b]: and it is adopted by the common lawyers[c], who indeed
have borrowed (especially in antient times) almost all their notions
of the legitimacy of marriage from the canon and civil laws.
persons are able to contract themselves in marriage, unless they
labour under some particular disabilities, and incapacities. What
those are, it will here be our business to enquire.
and therefore sufficient by the ecclesiastical laws to avoid
the marriage in the spiritual court; but these in our law only
make the marriage voidable, and not ipso facto void, until sentence
of nullity be obtained. Of this nature are pre-contract;
consanguinity, or relation by blood; and affinity, or relation by
marriage; and some particular corporal infirmities. And these
canonical disabilities are either grounded upon the express words
of the divine law, or are consequences plainly deducible from
thence: it therefore being sinful in the persons, who labour under
them, to attempt to contract matrimony together, they are
properly the object of the ecclesiastical magistrate's coercion; in
order to separate the offenders, and inflict penance for the offence,
pro salute animarum. But such marriages not being void ab initio,
but voidable only by sentence of separation, they are esteemed
valid to all civil purposes, unless such separation is actually made
during the life of the parties. For, after the death of either of
them, the courts of common law will not suffer the spiritual court
to declare such marriages to have been void; because such declaration
cannot now tend to the reformation of the parties[d]. And
therefore when a man had married his first wife's sister, and after
her death the bishop's court was proceeding to annul the mar-*
*riage and bastardize the issue, the court of king's bench granted
a prohibition quoad hoc; but permitted them to proceed to punish
the husband for incest[e]. These canonical disabilities, being entirely
the province of the ecclesiastical courts, our books are perfectly
silent concerning them. But there are a few statutes, which
serve as directories to those courts, of which it will be proper to
take notice. By statute 32 Hen. VIII. c. 38. it is declared, that
all persons may lawfully marry, but such as are prohibited by
God's law; and that all marriages contracted by lawful persons in
the face of the church, and consummate with bodily knowlege, and
fruit of children, shall be indissoluble. And (because in the times
of popery a great variety of degrees of kindred were made impediments
to marriage, which impediments might however be
bought off for money) it is declared by the same statute, that nothing
(God's law except) shall impeach any marriage, but within
the Levitical degrees; the farthest of which is that between uncle
and niece[f]. By the same statute all impediments, arising from
pre-contracts to other persons, were abolished and declared of
none effect, unless they had been consummated with bodily knowlege:
in which case the canon law holds such contract to be a
marriage de facto. But this branch of the statute was repealed by
statute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33.
(which prohibits all suits in ecclesiastical courts to compel a marriage,
in consequence of any contract) may collaterally extend
to revive this clause of Henry VIII's statute, and abolish the
impediment of pre-contract, I leave to be considered by the
canonists.
at least enforced, by the municipal laws. And, though some of
them may be grounded on natural law, yet they are regarded by
the laws of the land, not so much in the light of any moral offence,
as on account of the civil inconveniences they draw after
them. These civil disabilities make the contract void ab initio,
and not merely voidable: not that they dissolve a contract already
formed, but they render the parties incapable of forming any
contract at all: they do not put asunder those who are joined together,
but they previously hinder the junction. And, if any
persons under these legal incapacities come together, it is a meretricious,
and not a matrimonial, union.
1.
having another husband or wife living; in which case, besides the
penalties consequent upon it as a felony, the second marriage is
to all intents and purposes void[g]: polygamy being condemned
both by the law of the new testament, and the policy of all prudent
states, especially in these northern climates. And Justinian,
even in the climate of modern Turkey, is express[h], that "duas
uxores eodem tempore habere non licet."
2.
to avoid all other contracts, on account of the imbecillity of judgment
in the parties contracting; a fortiori therefore it ought to
avoid this, the most important contract of any. Therefore if a
boy under fourteen, or a girl under twelve years of age, marries,
this marriage is only inchoate and imperfect; and, when either of
them comes to the age of consent aforesaid, they may disagree
and declare the marriage void, without any divorce or sentence in
the spiritual court. This is founded on the civil law[i]. But the
canon law pays a greater regard to the constitution, than the age,
of the parties[k]: for if they are habiles ad matrimonium, it is a
good marriage, whatever their age may be. And in our law it is
so far a marriage, that, if at the age of consent they agree to continue
together, they need not be married again[l]. If the husband
be of years of discretion, and the wife under twelve, when she
comes to years of discretion he may disagree as well as she may:
for in contracts the obligation must be mutual; both must be
bound, or neither: and so it is, vice versa, when the wife is of
years of discretion, and the husband under[m].
3.
or guardians. By the common law, if the parties themselves
were of the age of consent, there wanted no other concurrence
to make the marriage valid: and this was agreeable to the
canon law. But, by several statutes[n], penalties of 100l. are laid
on every clergyman who marries a couple either without publication
of banns (which may give notice to parents or guardians) or
without a licence, to obtain which the consent of parents or
guardians must be sworn to. And by the statute 4 & 5 Ph. & M.
c. 8. whosoever marries any woman child under the age of sixteen
years, without consent of parents or guardians, shall be subject to
fine, or five years imprisonment: and her estate during the husband's
life shall go to and be enjoyed by the next heir. The civil
law indeed required the consent of the parent or tutor at all ages;
unless the children were emancipated, or out of the parents power[o]:
and, if such consent from the father was wanting, the marriage
was null, and the children illegitimate[p]; but the consent of the
mother or guardians, if unreasonably withheld, might be redressed
and supplied by the judge, or the president of the province[q]:
and if the father was non compos, a similar remedy was given[r].
These provisions are adopted and imitated by the French and
Hollanders, with this difference: that in France the sons cannot
marry without consent of parents till thirty years of age, nor the
daughters till twenty five[s]; and in Holland, the sons are at their
own disposal at twenty five, and the daughters at twenty[t]. Thus
hath stood, and thus at present stands, the law in other neighbouring
countries. And it has been lately thought proper to introduce
somewhat of the same policy into our laws, by statute 26 Geo. II.
c. 33. whereby it is enacted, that all marriages celebrated by licence
(for banns suppose notice) where either of the parties is
under twenty one, (not being a widow or widower, who are
supposed emancipated) without the consent of the father, or, if
he be not living, of the mother or guardians, shall be absolutely
void. A like provision is made as in the civil law, where the
mother or guardian is non compos, beyond sea, or unreasonably
froward, to dispense with such consent at the discretion of the
lord chancellor: but no provision is made, in case the father should
labour under any mental or other incapacity. Much may be, and
much has been, said both for and against this innovation upon our
antient laws and constitution. On the one hand, it prevents the
clandestine marriages of minors, which are often a terrible inconvenience
to those private families wherein they happen. On the
other hand, restraints upon marriage, especially among the lower
class, are evidently detrimental to the public, by hindering the
encrease of people; and to religion and morality, by encouraging
licentiousness and debauchery among the single of both sexes;
and thereby destroying one end of society and government, which
is, concubitu probibere vago. And of this last inconvenience the
Roman laws were so sensible, that at the same time that they forbad
marriage without the consent of parents or guardians, they
were less rigorous upon that very account with regard to other
restraints: for, if a parent did not provide a husband for his
daughter, by the time she arrived at the age of twenty five, and
she afterwards made a slip in her conduct, he was not allowed to
disinherit her upon that account; "quia non sua culpa, sed parentum,
id commisisse cognoscitur[u]."
4.
share of which, as no other, so neither can the matrimonial
contract, be valid. Idiots and lunatics, by the old common
law, might have married[w]; wherein it was manifestly defective.
The civil law judged much more sensibly, when it made such
deprivations of reason a previous impediment; though not a cause
of divorce, if they happened after marriage[x]. This defect in
our laws is however remedied with regard to lunatics, and persons
under frenzies, by the express words of the statute 15 Geo. II.
c. 30. and idiots, if not within the letter of the statute, are at
least within the reason of it.
contract, but actually must contract themselves in due form of
law, to make it a good civil marriage. Any contract made, per
verba de praesenti, or in words of the present tense, and in case
of cohabitation per verba de futuro also, between persons able to
contract, was before the late act deemed a valid marriage to many
purposes; and the parties might be compelled in the spiritual
courts to celebrate it in facie ecclesiae. But these verbal contracts
are now of no force, to compel a future marriage[y]. Neither is
any marriage at present valid, that is not celebrated in some parish
church or public chapel, unless by dispensation from the arch-*bishop
of Canterbury. It must also be preceded by publication
of banns, or by licence from the spiritual judge. Many other
formalities are likewise prescribed by the act; the neglect of
which, though penal, does not invalidate the marriage. It is
held to be also essential to a marriage, that it be performed by a
person in orders[z]; though the intervention of a priest to solemnize
this contract is merely juris positivi, and not juris naturalis
aut divini: it being said that pope Innocent the third was the
first who ordained the celebration of marriage in the church[a];
before which it was totally a civil contract. And, in the times
of the grand rebellion, all marriages were performed by the
justices of the peace; and these marriages were declared valid,
without any fresh solemnization, by statute 12 Car. II. c. 33.
But, as the law now stands, we may upon the whole collect, that
no marriage by the temporal law is ipso facto void, that is celebrated
by a person in orders,--in a parish church or public
chapel (or elsewhere, by special dispensation)--in pursuance
of banns or a licence,--between single persons,--consenting,--of
sound mind,--and of the age of twenty one years;--or
of the age of fourteen in males and twelve in females, with
consent of parents or guardians, or without it, in case of widow-*hood.
And no marriage is voidable by the ecclesiastical law, after
the death of either of the parties; nor during their lives, unless
for the canonical impediments of pre-contract, if that indeed still
exists; of consanguinity; and of affinity, or corporal imbecillity,
subsisting previous to the marriage.
II.
may be dissolved; and this is either by death, or divorce. There
are two kinds of divorce, the one total, the other partial; the
one a vinculo matrimonii, the other merely a mensa et thoro. The
total divorce, a vinculo matrimonii, must be for some of the canonical
causes of impediment before-mentioned; and those, existing
before the marriage, as is always the case in consanguinity;
not supervenient, or arising afterwards, as may be the case in affinity
or corporal imbecillity. For in cases of total divorce, the
marriage is declared null, as having been absolutely unlawful ab
initio; and the parties are therefore separated pro salute animarum:
for which reason, as was before observed, no divorce can
be obtained, but during the life of the parties. The issue of such
marriage, as is thus entirely dissolved, are bastards[b].
lawful ab initio, and therefore the law is tender of dissolving it;
but, for some supervenient cause, it becomes improper or impossible
for the parties to live together: as in the case of intolerable ill
temper, or adultery, in either of the parties. For the canon law,
which the common law follows in this case, deems so highly and
with such mysterious reverence of the nuptial tie, that it will not
allow it to be unloosed for any cause whatsoever, that arises after
the union is made. And this is said to be built on the divine re-*
*vealed law; though that expressly assigns incontinence as a cause,
and indeed the only cause, why a man may put away his wife
and marry another[c]. The civil law, which is partly of pagan
original, allows many causes of absolute divorce; and some of
them pretty severe ones, (as if a wife goes to the theatre or the
public games, without the knowlege and consent of the husband[d])
but among them adultery is the principal, and with reason named
the first[e]. But with us in England adultery is only a cause of separation
from bed and board[f]: for which the best reason that
can be given, is, that if divorces were allowed to depend upon
a matter within the power of either the parties, they would probably
be extremely frequent; as was the case when divorces were
allowed for canonical disabilities, on the mere confession of the
parties[g], which is now prohibited by the canons[h]. However,
divorces a vinculo matrimonii, for adultery, have of late years been
frequently granted by act of parliament.
wife; which is that allowance, which is made to a woman
for her support out of the husband's estate; being settled at the
discretion of the ecclesiastical judge, on consideration of all the
circumstances of the case. This is sometimes called her estovers;
for which, if he refuses payment, there is (besides the ordinary
process of excommunication) a writ at common law de estoveriis
habendis, in order to recover it[i]. It is generally proportioned to
the rank and quality of the parties. But in case of elopement,
and living with an adulterer, the law allows her no alimony[k].
III.
dissolved, I come now, lastly, to speak of the legal consequences
of such making, or dissolution.
that is, 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 every thing; and is therefore called in
our law-french a feme-covert; is said to be covert-baron, or under
the protection and influence of her husband, her baron, or
lord; and her condition during her marriage is called her coverture.
Upon this principle, of an union of person in husband and
wife, depend almost all the legal rights, duties, and disabilities,
that either of them acquire by the marriage. I speak not at present
of the rights of property, but of such as are merely personal.
For this reason, a man cannot grant any thing to his wife, or enter
into covenant with her[m]: for the grant would be to suppose
her separate existence; and to covenant with her, would be only
to covenant with himself: and therefore it is also generally true,
that all compacts made between husband and wife, when single,
are voided by the intermarriage[n]. A woman indeed may be attorney
for her husband[o]; for that implies no separation from, but
is rather a representation of, her lord. And a husband may also
bequeath any thing to his wife by will; for that cannot take effect
till the coverture is determined by his death[p]. The husband
is bound to provide his wife with necessaries by law, as much as
himself; and if she contracts debts for them, he is obliged to
pay them[q]: but for any thing besides necessaries, he is not chargeable[r].
Also if a wife elopes, and lives with another man, the
husband is not chargeable even for necessaries[s]; at least if the
person, who furnishes them, is sufficiently apprized of her elopement[t].
If the wife be indebted before marriage, the husband is
bound afterwards to pay the debt; for he has adopted her and
her circumstances together[u]. If the wife be injured in her person
or her property, she can bring no action for redress without
her husband's concurrence, and in his name, as well as her own[w]:
neither can she be sued, without making the husband a defendant[x].
There is indeed one case where the wife shall sue and be
sued as a feme sole, viz. where the husband has abjured the realm,
or is banished[y]: for then he is dead in law; and, the husband
being thus disabled to sue for or defend the wife, it would be
most unreasonable if she had no remedy, or could make no defence
at all. In criminal prosecutions, it is true, the wife may
be indicted and punished separately[z]; for the union is only a civil
union. But, in trials of any sort, they are not allowed to be evidence
for, or against, each other[a]: partly because it is impossible
their testimony should be indifferent; but principally because of
the union of person: and therefore, if they were admitted to be
witnesses for each other, they would contradict one maxim of
law, "nemo in propria causa testis esse debet;" and if against each
other, they would contradict another maxim, "nemo tenetur seipsum[**P2: typo here, se and ipsum are actually separate words]
accusare." But where the offence is directly against the
person of the wife, this rule has been usually dispensed with[b]:
and therefore, by statute 3 Hen. VII. c. 2. in case a woman be
forcibly taken away, and married, she may be a witness against
such her husband, in order to convict him of felony. For in this
case she can with no propriety be reckoned his wife; because a
main ingredient, her consent, was wanting to the contract: and
also there is another maxim of law, that no man shall take advantage
of his own wrong; which the ravisher here would do,
if by forcibly marrying a woman, he could prevent her from
being a witness, who is perhaps the only witness, to that very
fact.
distinct persons; and may have separate estates, contracts, debts,
and injuries[c]: and therefore, in our ecclesiastical courts, a woman
may sue and be sued without her husband[d].
one person, yet there are some instances in which she is separately
considered; as inferior to him, and acting by his compulsion.
And therefore all deeds executed, and acts done, by her, during
her coverture, are void, or at least voidable; except it be a fine,
or the like matter of record, in which case she must be solely and
secretly examined, to learn if her act be voluntary[e]. She cannot
by will devise lands to her husband, unless under special circumstances;
for at the time of making it she is supposed to be under
his coercion[f]. And in some felonies, and other inferior crimes,
committed by her, through constraint of her husband, the law
excuses her[g]: but this extends not to treason or murder.
correction[h]. For, as he is to answer for her misbehaviour,
the law thought it reasonable to intrust him with this power of
restraining her, by domestic chastisement, in the same moderation
that a man is allowed to correct his servants or children; for
whom the master or parent is also liable in some cases to answer.
But this power of correction was confined within reasonable
bounds[i]; and the husband was prohibited to use any violence to
his wife, aliter quam ad virum, ex causa regiminis et castigationis
uxoris suae, licite et rationabiliter pertinet[k]. The civil law gave
the husband the same, or a larger, authority over his wife; allowing
him, for some misdemesnors, flagellis et fustibus acriter verberare
uxorem; for others, only modicam castigationem adhibere[l].
But, with us, in the politer reign of Charles the second, this
power of correction began to be doubted[m]: and a wife may now
have security of the peace against her husband[n]; or, in return, a
husband against his wife[o]. Yet the lower rank of people, who
were always fond of the old common law, still claim and exert
their antient privilege: and the courts of law will still permit a
husband to restrain a wife of her liberty, in case of any gross
misbehaviour[p].
upon which we may observe, that even the disabilities,
which the wife lies under, are for the most part intended for her
protection and benefit. So great a favourite is the female sex of
the laws of England.
End of section 44
