MARRIAGE is a contract entered into between two persons of different sexes, with a view to one undivided state or society for life. It has its origin in the constitution, and is nearly coeval with the history, of man; and the first occasion of its occurrence is represented to us in holy writ as having taken place under the immediate direction of the All-wise Creator. It is, therefore, in a peculiar sense, an institution of divine providence; and all the positive laws of man for the regulation of marriage should intend and operate its maintenance and protection.

To constitute a valid marriage with us, it is necessary that the parties should lie under no disability preventing them from entering into the contract; that they should be willing to contract; and that the contract should actually be completed.

Consent is obviously essential to marriage. Those, therefore, who are incapable of consent are of course incapable of marriage; and so idiots are incapable of marriage, and lunatics, except during a lucid interval. With regard to the employment of force to effectuate a union, it is utterly subversive of society, and must be everywhere regarded as a high crime. The language itself bears testimony to the same fact, license and desire being pre-eminently sexual license and sexual desire, as if licentiousness and lust were the parents of all moral and social disorder.

Incapacity to consent may be conceived to include under it another disability, namely, want of age and immaturity of judgment, the usual attendant on early years. But this has another foundation, namely, physical immaturity; and upon these two grounds it has been the policy of most nations to disallow the marriage of infants. Eighteen and twenty were the usual ages of marriage for males with those northern nations amongst whom the Roman laws had not been introduced; but amongst the Lombards the age of marriage was fourteen for males and twelve for females, as in the Roman law; and such is also the law of this country. The framers of the Code Civil, however, justly conceive those ages unsuited to our customs and climate, and accordingly fix the age at eighteen for males and fifteen for females, but with a power in the government to dispense with the age upon cause shown. The canon law, on the other hand, attends only to physical considerations and allows persons of every age to marry, provided onl; they are habiles ad matrimonium. In the Mosaic law there was no restraint on marriage merely in respect of age but then it is to be remembered here, that amongst the Jews the parental influence and authority were perfectly sufficient to prevent premature marriage; whilst yet, on the other hand, the importance of marriage was, from circumstances peculiar to that people, perfectly sufficient to prevent undue obstruction.

Another disability is a prior marriage subsisting, or the having another husband or wife living at the same time: polygamy, though practised by many nations, both ancient and modern, being expressly condemned by Scripture, and contrary to all sound policy.

A further disability is relationship by birth or by affinity. Amongst the Athenians, no other relationship but that of parent and child formed a bar to marriage, with the exception of brothers and sisters, the intermarriage of whom was forbidden, in order to prevent the union of inheritances. But in this the Athenians were singular; and in the law of Scotland, where the Levitical law of marriage is adopted, the intermarriage of ascendants and descendants is forbidden to the remotest degree, as is likewise that of collaterals in loco parentis, and also of the whole or half blood who are within the second degree, thus allowing cousins-german, and all of more remote degree, to intermarry. In the case of affinity or of relationship by marriage, the husband and wife being in law but one person, the blood relations of either are held as related by affinity in the same degree to the one spouse as by consanguinity to the other. With regard’to illegitimate kindred, it is held that the impediments of consanguinity and affinity apply no less to such persons than to those lawfully related; on this principle, that the state and condition of bastardy, or rather the forms of marriage, are but of civil institution only.

There is a still further disability, the disability i before alluded to, namely, physical incapacity; but this is only a ground on which a marriage may be declared void at the instance of either of the parties, and not itself a nullity pleadable by others.

By an act of the parliament of Scotland, 1600, c. 20, it was further declared that all marriages contracted by persons divorced for adultery, with the person with whom they had been judicially found to have committed the crime, should be null and unlawful, and the issue born thereof be incapable to succeed as heirs to their parents. But it does not appear that this statute has ever been acted on by the courts.

The next particular we noticed as requisite to marriage was, that the parties should be willing to contract; on which particular we need not dwell, the will of the parties being [7:14:259]clearly, from what we have already stated, of the essence of the contract. Indeed we have adopted, from the civil law, the maxim, Consensus non concubitus facit nuptias.

The last requisite on this head is, that the parties do actually contract, or that effect be given to their declared intentions.

To give a distinct origin to the important relation of husband and wife, and also solemnity to the engagement, it has been the practice of most countries to enter on marriage with a ceremony in which the ministers of religion have commonly assisted. In Scotland, as early as the middle of the thirteenth century, we find it enacted by one of the canons of a provincial council held at Perth, that no faith should be given to any one regarding a marriage not celebrated before a priest, and three or four witnesses specially called for the occasion. Whether these canons were ever ratified by the civil power is not clear; but a distinction exists, and has long done so, between marriages celebrated in t ∕h<fie ecclesiae, and what are called clandestine marriages. Both kinds, however (as came also to be the doctrine of the canon law), are valid; and, moreover, the deliberate consent of parties entering into a present agreement to take each other for husband and wife, or their solemn acknowledgment, written or verbal, of their having done so,constitutes a marriage in law, whether proof of formal celebration be offered or not. By a statute of the Scottish parliament, also, passed upwards of fifty years before the Reformation, 1503, c. 77, it was enacted, that where a marriage has not been disputed in the lifetime of the parties, the widow, being reputed and holden the lawful wife of the deceased in her lifetime, shall have the dower, or tierce as it is called, and enjoy the same without hindrance, “aye and quhil it be clearly decerned, and sentence given, that she was not his lawful wife.” The law ofEngland is altogether different; the mode of contracting marriage having been regulated there by special statute since the middle of the last century, previous to which time, however, the marriage law of both countries appears to have been, generally speaking, the same. But in Scotland there is this remarkable peculiarity, that, in the absence of a special provision to the contrary, marriage is held incomplete to many purposes, till it has subsisted for a year and day, or living issue be born thereof. This is said by Lord Stair to have been derived from the Roman law; and certainly we find there, that if a woman who had no parent, by the consent of her guardians, after espousal, lived with a man as his wife for one year, without being absent for three nights, she became the lawful wife of such man by what was termed usucaption. But this is plainly different from the custom of Scotland, which we rather think had its origin in the practice of hand-fastening, once prevalent in that country. (See Lindsay’s Chronicles of Scotland, p. 66; Martin’s Western Isles, p. 114; Forsyth’s Scotland, vol. ii. p. 284.) According to the law as it now stands, if a marriage have not subsisted for year and day, or produced a living child, all rights granted in consideration of the marriage become void, and things return to the same condition in which they stood before the marriage, unless special stipulation be made to the contrary. The husband has no right to courtesy, nor the widow to her dower; the tocher is paid back, and the moveable funds still extant are restored to the party to whom they originally belonged.

Let us now attend to some of the chief consequences resulting from the matrimonial engagement. By marriage, the husband and wife become one person in law; and on this unity depend almost all the rights and disabilities which either of them acquires or incurs by their intermarriage. This unity, however, does not operate in the same way as in the case of the contract of partnership, where every member of the company represents all, and may bind all, but upon the principle of the subjection of the wife to the husband. Whilst, therefore, the moveable property of the parties is ipso jure formed into a common fund, the husband is also ipso jure the administrator of that fund. He is the head of the family, and the proper curator of his wife, over whom also he is invested with a large marital authority; and her very management as head of the domestic economy’· of his house is not in virtue of any' inherent or independent power of her own, but of delegation from him. She has, however, her own peculiar property of paraphernalia, customary gifts, and exclusive provisions; the law will protect her against the cruelty of her husband; and without his consent she may execute a testament or dispose of her property by a mortis causa conveyance. In the case of donations also between husband and wife, either party may recall their gifts, in as far as they are not reasonable, either tacitly or expressly.

We have already alluded to the dissolution of marriage by death. This is its natural termination; and in England it is the only way in which a valid marriage can end, except by the power of an act of parliament. It is otherwise in Scotland; for here a marriage may be dissolved not only by the death of either party, but also by judicial sentence of divorce for adultery or desertion.

Jactitation of Marriage, in English law, one of the first and principal matrimonial causes, when one of the parties gives out that he or she is married to the other, whereby a common reputation of their matrimony may ensue. On this ground the party injured may libel the other in the spiritual court; and unless the defendant undertakes and makes out a proof of the actual marriage, he or she is enjoined perpetual silence on that head; which is the only remedy the ecclesiastical courts can give for this injury.