of human

WHATEVER may have been the most early form of human society, The family the it is now generally accepted that the Family is the parent of social probable origin and political life, as it has existed from remote historic times down society. to the present period. The fundamental conception of the term family is the union of man and woman, the weaker protected by the strong, but ministering to his wants; and from this union. spring other lives, which are bound together by their common origin and affection. To this social nucleus were added in process of time strangers serving as slaves, whose services the tasted

A

Permanent character of marriage among the

higher races.

Marriage more than a contract; it is a status.

Various aspects of marriage.

An Institution.

A status religious in its nature.

sweets of softer life made necessary, till little by little was built
up that social structure which found its widest development in the
patriarchal life of the East and its severest in the stern patria
potestas of ancient Rome. This union was no mere temporary
consorting together of man and woman, but one lifelong bond;
and it is difficult to imagine any other condition between the two,
when it is remembered that the wife was deemed but little more
than a personal chattel of the husband, over whom he had the
fullest power.
It is only in the later stages of civilization, when
woman has taken a more equal rank with man, that this bond is
more easily dissolved. Polygamy, or the taking of more wives
than one, in no way affected the duration of the tie. This union,
then, from the distant time when human life began to crystallize
into ordered shape and form, has among all the higher races been
permanent and life-long, and is called Marriage. Marriage signifies
both the acts which create the tie and the state of those who are
bound by it.

The term "contract" has in modern times been generally applied to the relationship of those who enter the state or condition of matrimony, because, no doubt, of the essential element of consent and agreement between the parties intending to become man and wife; but marriage is more than a contract, it is a status, the conditions of which are regulated for and not by those who enter it. After the marriage is perfected, the semblance of a true contract is at an end. Thus, the Roman jurists did not discuss it under the head of Obligations, but under Status, or the law of Persons. For convenience, and in imitation of eminent authors who have dealt with this subject, the term contract will be used to designate this relationship.

Marriage has been defined in various ways by various authors: as a status or institution; as a real or a consensual contract ;' as a religious bond; and as a purely civil engagement. In fact, it has been regarded from the lofty sacramental view of the Church of Rome down to a mere agreement for the propagation of the species.

"Marriage has been well said to be something more than a contract—either religious or civil-to be an Institution.”2

Marriage is a state or relation, depending for its existence upon the fact of parties competent to contract the relation, and their legally voluntary present consent to do so, with

1 There has been much discussion among commentators on Roman law as to whether marriage was a real or consensual contract, but the modern opinion (based on that of Savigny) is, that it is neither the one nor the other; and that under the Roman law it was a conveyance operating upon the status of at least one of the parties.

Per Lord Penzance in Hyde v. Hyde and Woodmansee, L. R. 1 P. & D. 130, 133.

such formalities as the law of the place requires for its valid solemnisation."

"Marriage is the civil status of one man and one woman A status. united in law for life, under the obligations to discharge to each other, and the community, those duties which the community by its laws holds incumbent on persons whose association is founded on the distinction of sex."

The following is put forward as a description pointing to the condition of the parties subsequent to their entering upon the marriage state: "The voluntary social union of man and woman for an unlimited time, entailing certain mutual rights and duties, evidenced by some legal form or ceremony-religious or secular -expressive of the consent of the parties to enter such union."

character of

The next step is shortly to discuss what is the true character The legal of this contract: whether it be a contract pure and simple, or a marriage. mixture of contract and status; and whether it is a religious or civil contract in relation to the State.

"According to juster notions of the nature of the marriage contract, it is not merely either a civil or religious contract, and at the present time it is not to be considered as originally and simply one or the other." 3

:

66

civil contract

religion.

Again Marriage in its origin is a contract of natural law; Marriage a it may exist between two individuals of different sexes, although to be sancno third person existed in the world, as happened in the case of tioned by the common ancestors of mankind. It is the parent, not the child, of civil society, principium urbis et quasi seminarium reipublica. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanctions of religion superadded. It then becomes a religious as well as a natural and civil contract; for it is a great mistake to suppose that because it is the one, therefore it may not likewise be the other. Heaven. itself is made a party to the contract, and the consent of the individuals pledged to each other is ratified and consecrated by a vow to God."4

Mr. Justice Story also holds it to be more than a mere contract, for he says: "I have throughout treated marriage as a contract, because this is the light in which it is ordinarily viewed by jurists, domestic as well as foreign. But it appears to me to be something more than a mere contract. It is rather to be

1 Story, Conf. of Laws, s. 112 a.

2 Bishop, Law of Marriage and Divorce, s. 3.

3 Per Lord Stowell in Lindo v. Belisario, 1 Hag. Con. 216, 230.
Per Lord Stowell in Dalrymple v. Dalrymple, 2 Hag. Con. 54, 63.

Social effects of marriage.

Christian basis of English

matrimonial

law.

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 belong to ordinary contracts."1

Marriage is a contract sui generis, and differing in some respects from all other contracts, so that the rules of law which are applicable in expounding and enforcing other contracts may not apply to this. The contract of marriage is the most important of all human transactions. It is the very basis of the whole fabric of civilized society. The status of marriage is juris gentium, and the foundation of it, like that of all other contracts, rests on the consent of parties; but it differs from other contracts in this, that the rights, obligations, or duties arising from it are not left entirely to be regulated by the agreement of parties, but are to a certain extent matters of municipal regulation, over which the parties have no control, by any declaration of their will. It confers the status of legitimacy on children born in wedlock, and with all the consequential rights, obligations, or duties thence arising; it gives rise to the relations of consanguinity and affinity; in short, it pervades the whole system of civil society. Unlike other contracts, it cannot in general, amongst civilized nations, be dissolved by mutual consent; and it subsists in full force even although one of the parties should be for ever rendered incapable, as in the case of incurable insanity or the like, from performing his part of the mutual contract." 2

The matrimonial law of this country is adapted to the marriage of Christians and is inapplicable to polygamous connections;3 and while an English subject retains his English domicil he cannot contract a valid marriage with the subject of a foreign country which permits polygamy, the marriage being carried out according to the forms and ceremonies (if any) of that country.* It would seem to be doubtful, according to the law of this country, whether a marriage between a domiciled Englishman and a native of such foreign country would be good on the ground of necessity," where it was impossible for the marriage to be celebrated by a recognized English minister or official." But

1 Conf. of Laws, s. 108 n.

Per Lord Robertson (Primus) in the Edmonstone, Levett, Forbes, and Ferguson divorce cases, p. 397. This judgment was delivered in a Scotch case, but is equally descriptive of English marriages.

3 Per Lord Penzance in Hyde v. Hyde and Woodmansee, L. R. 1 P. & D. 133. 4 Re Bethell, Bethell v. Hildyard, 38 Ch. D. 220.

5 See Basuto and British Bechuanaland Marriage Act, 1889 (52 & 53 Vict. c. 38), passed to validate marriages celebrated in those territories between parties (one or both being British subjects) by any minister of religion of any denomination of Christians, duly appointed or ordained or reputed to be so, if properly registered within three years of celebration.

means" non

a "Christian marriage" does not mean strictly only a marriage "Christian between Christians, but monogamous, that is, a marriage exclud- polygamous. ing the taking of more than one spouse; thus, where a marriage was had between a British subject and a Japanese woman, and it was proved that they were validly married according to the laws of Japan, and by those laws the husband was excluded from taking more than one wife; the marriage was held good.1

tract a con

Of late years a great change has taken place in English law in Marriage conthis matter. Formerly the religious element in matrimony was sensual civil more prominent, but since the year 1836, it would be more contract. correct to say that in the eye of the law the civil aspect has predominated. The consensual nature of the marriage contract remains untouched; but while the offices of the clergy of the Established Church are no doubt retained, a religious ceremony of marriage is no longer an obligation in the eye of the law, and marriage is treated as a civil contract. The priest and registrar are on the same level, and a State or official witness is now appointed of the consent of the parties, and to be a guarantee of propriety and regularity. By the law of England, then, the legal character of marriage as the inception of the matrimonial union is a consensual civil contract. But, as before pointed out, the effect of marriage is not confined to that of ordinary contracts, for a new status is created between the contracting parties, which affects not only themselves but the society at large in which they have taken up their matrimonial abode. In other words, marriage Marriage an in its widest sense is an Institution. From this fact that the social union of the spouses is a status and not a mere contract flows one important result, namely, that the State or legislature has it in its power to cure an invalidity arising from mere defects in form where the parties marrying had a matrimonial intent: so too, on the contrary, it can render null and void marriages already contracted if it thinks fit so to do.

Institution.

The marriage state being the chief foundation on which the superstructure of society rests, it follows naturally that the law, which is the expression of the sentiments prevailing among organized communities, assumes a favourable attitude towards the state. The presumption of the law is clearly in its favour. Semper præsumitur pro matrimonio is an invariable legal maxim.3 This presumption of law must prevail unless broken in upon, and sumitur pro is much stronger than any ordinary legal presumption in the

1 Brinkley v. Att.-Gen., 15 P. D. 76.

26 & 7 Wm. IV. c. 85.

Steadman v. Powell, 1 Add. 58.

Semper præ

matrimonio.