by Heineccius at Leipsic, 1721, in 8vo. Marracci had also a hand in the Biblia Sacra Arabica; Romæ, 1671, in 3 vols. folio. MARRIAGE, n. s.) Fr. marriage; Ital. MARRIAGEABLE, adj. | maritaggio; barbaMARRIAGE-BED, n.s. rous Lat. maritagium, MARRIAGE-CHAMBER, of Lat. marito, to MARRIAGE-DAY, marry. The conjuMARRIAGE-Hour, gal union: marriageMARRIAGE-TIE, able is of age, or fit MARRIED, adj. to be married: MilMARRY, v. n. & v. a. ton beautifully uses it for capable of union. See below. Married is conjugal; connubial; belonging to the marriage state: to marry, to enter into the conjugal state. The numerous compounds of this word are obvious in their meaning.

Let them marry to whom they think best. Numbers xxxvi. 6. As a mother shall she meet him, and receive him as a wife married to a virgin. Ecclus. xv. 2. Thou shalt come into the marriage chamber.

Tob. vi. 16.

Shakspeare.

Id.

The marriage with his brother's wife Has erept too near his conscience. I by the honour of my marriage-bed, After young Arthur claim this land for mine. Id. When Augustus consulted with Mecenas about the marriage of his daughter Julia, Mecenas took the liberty to tell him, that he must either marry his daughter to Agrippa, or take away his life; there was no third way, he had made him so great. Bacon.

The French king would have the disposing of the marriage of Bretagne, with an exception that he should not marry her himself.

To these whom death again did wed,
This grave's the second marriage-bed,
For though the hand of fate could force
"Twixt soul and body a divorce,
It could not sever man and wife,

Id.

Because they both lived but one life. Crashaw. Some married persons, even in their marriage, do better please God than some virgins in their state of virginity they, by giving great example of conjugal affection, by preserving their faith unbroken, and by educating children in the fear of God, please God in a higher degree than those virgins whose piety is not answerable to their opportunities. Taylor. There on his arms and once-loved portrait lay, Thither our fatal marriage-bed convey. Denham. They led the vine To wed her elm: she spoused, about him twines Her marriageable arms, and with her brings Her dower, the adopted clusters, to adorn His barren leaves. Every wedding, one with another, produces four children, and that is the proportion of children,

Milton.

Swift.

knell !

MARRIAGE is a contract, both civil and religious, between a man and a woman, by which they engage to live together in mutual love and friendship for the ends of procreation, &c. See MORAL PHILOSOPHY. It is part of the law of nations, and is in use among all people. The Romanists account it a sacrament. The first inhabitants of Greece lived together without marriage. Cecrops, king of Athens, is said to have been the first author of this honorable institution among that people. After the commonwealths of Greece were settled marriage was very much encouraged by their laws, and the abstaining from it was discountenanced and in many places punished. The Lacedemonians were remarkable for their severity towards those who deferred marriage beyond a limited time, as well as to those who wholly abstained from it. The Athenians had an express law, that all commanders, orators, and persons intrusted with any public affair, should be married men. Polygamy was not generally tolerated in Greece. The time of marriage varied in different places. The Spartans were not permitted to marry till they arrived at their full strength, that the children might be strong and vigorous: and the Athenian laws are said to have once ordered that men should not marry till thirty-five years of age. The season of the year was the winter, and particularly the month of Gamelion, or January. The Greeks thought it scandalous to contract marriage within certain degrees of consanguinity; whilst most of the barbarous nations allowed incestuous mixtures. Most of the Grecian states, especially such as made any figure, required their citizens.

should match with none but citizens, and the children were not allowed to marry without the consent of their parents. The usual ceremony in promising fidelity was kissing each other, or giving their right hand, which was a general form of ratifying all agreements. Before the marriage could be solemnized the gods were to be consulted, and their assistance implored by prayers and sacrifices, which were offered to some of the deities that superintended these affairs, by the parents or nearest relations of the persons to be married. When the victim was opened the gall was taken out and thrown behind the altar, as being the seat of anger and malice, and therefore the aversion of all the deities who had the care of love, as well as those who became their votaries. The Romans, as well as the Greeks, disallowed polygamy: a Roman might not marry a woman who was not a Roman. They esteemed the kalends, nones, and ides of every month unlucky for the celebration of marriage, as well as the feast of the parentalia, and the whole month of May. The most happy season in every respect was that which followed the ides of June. The Roman laws speak of second marriages in very hard and odious terms: Matre jam secundis nuptiis funestata, L. iii. C. de sec. nuptiis. By these laws it was enacted, that the effects of the husband or wife deceased should pass over to the children, if the survivor should marry a second time. By the law Hac edictali (Cod. de sec. nupt.), the survivor, upon marrying a second time, could not give the person he married a portion more than equal to that of the children. In the primitive church the affected respect to chastity was carried so high, that a second marriage was accounted a kind of legal whoredom, or a species of bigamy; and there are some ancient canons which forbid the ecclesiastics from being present at second marriages. Marriage, by the Mosaic law, was subject to several restrictions; thus, by Levit. xviii. 15, a man was forbidden to marry his brother's widow unless he died without issue; in which case it became enjoined as a duty. So he was prohibited to marry his wife's sister, while she was living, ver. 18; which was not forbidden before the law, as appears from the instance of Jacob. The ancient Roman law is silent on this head; and Papinian is the first who inentions it, on occasion of the marriage of Caracalla. The lawyers who came after him stretched the bonds of affinity so far, that they absurdly placed adoption on the same footing

with nature.

MARRIAGE-LAWS.-In our general article Law the analysis of the voluminous system of English jurisprudence was necessarily very concise. We now propose to fill up an essential part of the outline, and in the present, and the subsequent articles of MASTER AND SERVANT, PARENT AND CHILD, &c., to furnish our readers with a compendium of the rights of persons in their private relation,' or, in other words, the domestic law. We collect a considerable part of our materials from Sir William Blackstone's Commentaries, which, however, we venture to dispose in a different order, and to which we have added, from the recent acts of parliament, and the numerous reports of cases adjudged in the several

courts of law and equity, a considerable mass of information, that, we trust, will be generally interesting or useful.

SECT. I.-OF THE LEGAL REQUISITES OF
MARRIAGE.

The law of England considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law. The temporal courts have no jurisdiction to consider unlawful marriage 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. Taking it thus in a civil point of view 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.

First, They must be willing to contract. Consensus, non concubitus, facit nuptias,' is the maxim of the civil law in this case: and it is adopted by the common lawyers, who indeed have borrowed (especially in ancient times) almost all their notions of the legitimacy of marriage from the canon and civil laws.

Secondly, They must be able to contract; that is, they must labor under no disability or incapacity.

Thirdly, The parties must not only be willing and able to contract, but must actually contract themselves in due form of law, to make it a good civil marriage. Any contract made per verba de præsenti, or in words of the present tense; and, in case of cohabitation, per verba de futuro also, between persons able to contract, was formerly deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiæ. But these verbal contracts are now of no force, to compel a future marriage. Neither is any marriage at present valid, that is not celebrated in some parish church, or public chapel, unless by dispensation from the archbishop of Canterbury. It must also be preceded by publication of banns, or by license from the spiritual judge. Many other formalities are likewise prescribed by the statutes, 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 holy orders, though the intervention of a priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini. 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 license, 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 widowhood. And no marriage is voidable by the ecclesiastical law after the death of either of the parties; nor during their lives, un

less for the canonical impediments of pre-contract (if that indeed still exists), of consanguinity, and of affinity; or corporal imbecility subsisting previous to the marriage.

We deem it necessary to add, to this general outline, some particulars collected from the several marriage acts which have been passed during the present reign.

1. According to the late act, 4 Geo. IV. chap. 76, the banns must be published in an audible manner in the parish church, or a public chapel belonging to the parish where the parties reside, upon three Sundays preceding the marriage, during the morning service, immediately after the second lesson; or the evening service if there be none in the morning. If the parties reside in different parishes the banns are to be published in both. The names, places, and time of abode of the parties, must be given to the minister seven days prior to the publication.

2. By the 5 & 6 Geo. IV., marriages are declared legal which are solemnized in any other place than the parish church and chapel, to which other place the bishop of the diocese may have granted a license for the solemnization of marriages.

3. If the marriage be not solemnized within three months after the first publication, it is necessary they should be republished. The same period is prescribed in the case of an intended marriage by license.

4. The license can only be granted for the parish or chapelry in which one of the parties has resided for fifteen days next before the grant. ing of the license. One of the parties must personally swear before the surrogate that he or she believes there is no impediment of kindred, or alliance, or any other lawful cause,nor any suit pending to hinder the marriage. It must also be sworn that one of the parties has had his or her usual place of abode for fifteen days immediately preceding the license within the parish or chapelry, where the marriage is to be solemnized. In case either of the parties, not being a widow or widower, is under twenty-one years, it must be sworn that the consent of the person, whose consent is requisite, has been obtained. And, if there be no person having authority to consent, then upon oath to that effect, by the party requiring the license, such license may be granted.

5. By special license, or dispensation, from the archbishop of Canterbury, marriages may be celebrated at a private house, out of canonical hours in the evening, or in other parish churches than where one of the parties resides.

6. The colemnization is prohibited during Lent and on fasting days; but persons may marry under license during Lent although the banns cannot then be published.

7. When the solemnisation has taken place, whether after publication of banns, or under license, it is not only unnecessary to give evidence that the usual place of abode of one of the parties for the time required by the act was in the parish where the marriage took place, but no evidence can be received to the contrary in any suit regarding the validity of such marriage. 4 Geo. IV. chap. 76, sec. 26.

8. Marriages must be solemnized before two

or more credible witnesses besides the minister who celebrates the same. Ibid. sec. 28.

9. Immediately after the celebration of the marriage an entry is to be made in the Register book, in which must be expressed that the marriage was by banns or license, and, if the parties were under age, with consent of the parents, &c.; such entry to be signed by the minister, and by the parties married, and attested by the two witnesses. Ibid.

10. Gretna Green, and other places in Scotland. -The marriages which take place there are deemed valid, if the consent of the parties be fairly, and not fraudulently obtained, and if the ceremony be performed according to the mode required by the law of Scotland.

SECT. II.-OF CANONICAL IMPEDIMENTS. In general all persons are able to contract themselves in marriage, unless they labor under some particular disabilities and incapacities, canonical or civil. Such as are canonical are deemed 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 them: it therefore being sinful in the persons, who labor under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrates' 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 the 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.

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 consummated with bodily knowledge, 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 excepted) shall impeach any marriage but within the Levitical degrees; the farthest of which is that between uncle and niece. By the same statute all impediments, arising from precontracts to other persons, were abolished and

declared of none effect, unless they had been consummated with bodily knowledge: 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 Edward VI.

c. 23.

It is to be observed, however, that 4 Geo. IV. c. 76, sect. 27, enacts that in no case whatsoever shall any suit or proceedings be had in any ecclesiastical court, in order to compel a celebration of any marriage in facie ecclesiæ, by reason of any contract of matrimony whatsoever, whether per verba de præsenti, or per verba de futuro.' There was a similar provision in the previous general marriage act of 26 Geo. II. c. 33, which Blackstone observes might collaterally extend to revive the clause of Henry VIII.'s statute, and thus abolish the impediment of pre-contract. Of the prohibited degrees.-Marriage is prohibited under the fourth degree of consanguinity according to the civil law, except in the ascending or descending line. It is scarcely possible, however, that any one should marry his issue in the fourth degree. Between collateral branches, all who are in the fourth, or any higher degree, are permitted to marry. Thus first cousins are in the fourth degree; a nephew and great aunt are in the fourth degree; and, though a man may not marry his grandmother, he may marry her

sister.

These rules apply to the same degrees of affinity by marriage; but the affinity must be in a direct line: thus the relations by consanguinity of the husband are not related to those of the wife, and consequently two brothers may marry two sisters; or a father and son a mother and daughter.

SECT. III.-OF CIVIL IMPEDIMENTS. The other sort of disabilities are those which are created, or 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. Prior marriage.-The first of these legal disabilities is a prior marriage, or 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.

2. Want of age. This is sufficient to avoid all other contracts, on account of imbecility 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 inchoate and imperfect; and, when either of them comes to the age of VOL. XIII.

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. But the canon law pays a greater regard to the constitution than the age of the parties; 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. If the husband be of years of discretion, and the wife under twelve years of age, 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 versâ, when the wife is of years of discretion and the husband under.

3. Want of consent of parents 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, penalties of £100 are laid on every clergyman who married a couple either without publication of banns (which may give notice to parents or guardians), or without a license, to obtain which the consent of parents or guardians must be sworn to; and, by the 4 Geo. VI. c. 76, persons solemnising marriage, under the pretence of being in holy orders, shall be transported for fourteen years.

By the stat. 4 & 5 P. & M. c. 8, whosoever married any woman child under the age of sixteen years, without consent of parents or guardians, was subject to fine, or five years' imprisonment: and her estate, during the husband's life, went to the next heir. The civil law required the consent of the parent or tutor at all ages; unless the children were emancipated, or out of the parents' power; and, if such consent from the father was wanting, the marriage was null, and the children illegitimate; 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; and, if the father was non compos, a similar remedy was given.

Under the act 4 Geo. IV. c. 76, sect. 22, marriages are declared void, in case the persons knowingly and wilfully marry in any other place than a church or chapel where banns may be lawfully published (unless by spiritual license), or knowingly and wilfully, marry without due publication of the banns or license from the proper authority; or, knowingly and wilfully, consent to the solemnisation by a person not in holy orders.

In all other cases of fraud or false swearing, or other irregularity, the marriage itself is valid, though the parties are liable to punishment, and forfeiture of property. Though fraud is sometimes a ground for annulling a marriage, as in the instance of using a false name in the license or publication of banns; yet if the name was not assumed to defraud the other party, or the parents, the fictitious name will not invalidate the marriage.

By the 23d section when a valid marriage is solemnised between parties, under age, contrary to the act, by false oath, or fraud, the guilty party 2 P

forfeits, for the benefit of the innocent party, or the issue of the marriage, in such manner as a court of equity may direct, all property accruing from the marriage.

4. Want of reason.— -Without a competent share of reason, as no other, so neither can the matrimonial contract, be valid. It was formerly adjudged that the issue of an idiot was legitimate, and consequently that his marriage was valid. But modern resolutions have adhered to the reason of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, was absolutely void. But, as it might be difficult to prove the exact state of the party's mind at the actual celebration of the nuptials, upon this account (concurring with some private family reasons), the stat. 15 Geo. II. c. 30 has provided, that the marriage of lunatics and persons under phrenzies (if found lunatics under a commission, or committed to the care of trustees by any act of parliament), before they are declared of sound mind by the lord chancellor, or the majority of such trustees, shall be totally void. SECT. IV. OF MARRIAGES CELEBRATED

ABROAD.

By the 4 Geo. IV. chap. 91, sect. 1, marriages solemnised by a minister of the Church of England in the chapel or house of any British ambassador, or minister residing within the country, to the court of which he is accredited, or in the chapel of any British factory abroad, or in the house of a British subject residing at such factory, are declared valid. So also are marriages solemnised within the British lines by any chaplain or officer, or other person officiating under the orders of the commanding officer of a British army serving abroad.

But, in order to affect property in foreign countries, the marriages of British subjects must take place according to the laws of those countries. Thus, in France and the Netherlands, it is necessary that the consent of both the parents, if alive, be given for each party, and, if dead, the certificates of their burial must be duly authenticated by the foreign consul resident in England.

SECT. V.-OF THE DISSOLUTION OF MAR

RIAGES.

We are next to consider the manner in which marriages 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 à vinculo matrimonii, the other merely à mensâ et thoro. 1. The total divorce, à 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 imbecility. 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. Of late years

divorces à vinculo matrimonii, by reason of adultery, have frequently been granted by act of parliament.

2. Divorce à mensâ et thorn is when the marriage is just and lawful, 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 revealed 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. 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 knowledge and consent of the husband); but among them adultery is the principal, and with reason named the first. But with us in England adultery is only a cause of separation from bed and board: 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 of 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, which is now prohibited by the canons.

3. In case of divorce, à mensâ et thoro, the law allows alimony to the 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. 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.

SECT. VI.-OF THE RIGHTS AND LIABILITIES CONSEQUENT UPON MARRIAGE.

Having thus shown how marriages may be made and dissolved, we come now to the legal consequences of such making or dissolution. By marriage the husband and wife are one person in law 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

It is doubtful whether ill temper alone is a sufindissoluble, and the courts are not accustomed to ficient cause for a divorce. Marriage is considered interfere, unless there-exists something which renders co-habitation unsafe, or likely to be attended with injury to the person, or to the health, of the party applying.