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(5.) The consent of parents or guardians to the marriage of minors is not requisite to the validity of the marriage. In 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 in the formation of the marriage contract, as in any part of the civilized world. The matrimonial law of Scotland and of Ireland, is equally loose, b 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 bans, or without the consent of the father, or unmarried mother, or guardian, to be absolutely null and void.c The English statute
cussed 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's Rep. 717. Act of 1792, R. C. Virginia, vol. i. 274. In Massachusetts, the marriage between a man and his deceased wise's sister was formerly lawful, (Parsons, Ch. J., 6 Mass. Rep. 379.) And so it continues to be by the Revised Statutes, 1836, p. 475. The Rev. Doctor Mathews of New York, in an able argument in favour of the lawfulness of marrying a deceased wife's sister, delivered be. fore 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. Rep. 378.
a 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.
b Erskine's Inst. vol. i. p. 89–91. M'Douall's Inst. vol. i. p. 112. 2 Adams' Rep. 375. 1 Ibid. 64. Shelford on Marriage and Divorce, p. 91.
• (In Brealy v. Reed, 2 Curteis, 833 in the consistory court of London a
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 the control of property. Though the Roman law greatly favoured *86 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 in dispensable to the validity of the marriage of children, of whatever age, except where that consent could not be given, as in cases of captivity, or defect of understanding.b Parental restraints upon marriage existed likewise in ancient Greece, and they exist to a very great extent in Germany,d Holland,e and France.f The marriage of minors
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.)
- The statute of 4 Geo. 1V. c. 76, which re-enacted 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 state are broken through. See 1 Addams' Rep. 28. 94. 479. Rex v. Inhabitants of Birmingham, 8 Barnu. f Cre88. 29, and infra, p. 90. In Wiltshire v. Wiltshire, Haggard's Eccle. Rep. 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, p. 309–322.
• Inst. 1. 10. Pr. Taylor's Elements of the Civil Law, 310—313. If the parent unreasonably withheld his consent, ho might be compelled by the governor of the province, at the instance of the child, to give it. Dig. 23, 2, 19.
e Potter's Greek Antiq. vol. ii. p. 270, 271.
d Heinec. Elem. Jur. Ger. lib. i. sec. 138. Turnbull's Austria, vol. 2, ch. 7, says that the necessity of certificates of Education, to warrant mar. riage, is a great impediment to the celebration of marriages.
• Van Leeuwen's Com. on the Roman Dutch Law. p. 73. i Pothier, Traité Du Contrat de Mar. No. 321–342. Code Napoleon,
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.a *87 The Roman lawyers *strongly inculcated the doc
trine, that the very foundation 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. This is the language equally of the commonc and canon law, and of common reason.
If the contract be made per verba de presenti, 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, and it is equally binding as if made in facie ecclesiæ.d There is no re
No. 148–160. Touiller, Droit Civil Francais, tome i. p. 453—463. But a marriage in France by a British subject under the age of 25 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.
a Grotius. b. 2. ch.5, sec, 10. Bracton, lib. i. ch. 5, sec. 7. • Dig. 35. 1. 15. Id. 24. 1. 13. Id. 50. 17.30. Code 5. 4. 9. and 22. c Co Litt. 33 a.
a The Supreme Court of the United States, in Jewell v. Jewell, 1 Horard's Rep. 219, were equally divided in respect to the above paragraph or proposition in the text, and gave no opinion. The caso came up on error
cognition of any ecclesiastical authority in forming the connexion, 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. The only doubt entertained by
from the circuit court in South Carolina. So in the case of the Queen v. Millis, 10 Clark of Finnelly, 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 favour 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. J. 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. Caslon, 13 Meeson of Welsby, 260, S. P.
Bunting v. Lepingwell, 4 Co. 29. S. C. Moore, 169. Jesson v. Collins, 6 Mod. Rep. 155. 2 Salk. Rep. 437. S. C. Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep. 54. 64. La Tour v. Teesdale, 8 Taunt. Rep.830. Fenton v. Reed, 4 Johns. Rep. 52. Londonderry v. Chester, 2 N. H. Rep. 265. Rose v. Clark, 8 Paige's Rep. 574. State v. Patterson, 2 Iredell's N. C. Rep. 316. Swinburne on Espousals, sec. 4, cited by Sir Wm. Scott, in Lindo v. Belisario, 1 Hagg. Consist. Rep. 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 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. 4, 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 solemni
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, exeept 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 marriage.a This facility in forming the
zed before a justice of the peace. It is very clear that the marriage con. tract is valid and binding, if made by words de præsenti, though it be not followed by cohabitation. M'Adam v. Walker, 1 Dow's P. Rep. 148. Jackson v. Winns, 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 connexion, and marriage was really intended by the parties, is a valid marriage, if made between infants of the respective ages of fourteen and twelve. Shel. ford on Marriage and Divorce, p. 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 J Clark's P. C. 265. The Scots 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. 172, 173, 174. See also Bell's Principles of the Law of Scotland, sect. 1506. Lord Stair's Institutions of the Law of Scotland, edit. by More, 1832, vol. 1. p. 25. 26, and note B. p. 13. 14. Id. vol. 2. 444. Evidence of David Hume in Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep. App. p. 64, 65.
a 1 Salk Rep. 119. 4 Burr. Rep. 2057. 1 Black's Rep. 632. Doug. Rep. 171. The King v. Stockland, Burr. Sett. Cases, 509. Wilkinson v. Payne, 4 Term Rep. 468. Cunningham v. Cunningham, 2 Dow's Rep. 482. M'Adam v. Walker, 1 Dow's Rep. 148. Fenton v. Reed, 4 Johns Rep. 52. Jackson v. Claw, 18 Johns. Rep. 346. Ford, J., 6 Halsted's Rep. 18, 19. Hantz v. Sealy, 6 Binney, 405. Doe v. Fleming, 12 B. Moore's Rep. 500. Rose v. Clark, 8 Paige's Rep. 574. Lord Kenyon