198. All that has been said of the Rights and Obligations of a Man with regard to his Wife and Children, apply only to such wife and children as the law recognizes: to his lawful wife, and his legitimate children, born of a lawful marriage. What a Lawful Marriage is, the Law must define. Marriage is a Contract; and though it is, in most countries, a Contract of a special character, solemnized with peculiar ceremonies, it must be, in many respects, governed by the general Rules of Contracts. Thus, the persons marrying must be of sound mind; of the age which the Law considers as mature; and free from other legal impediments, such as an inconsistent previous Contract. They must also understand each other to intend that perpetual union which Marriage implies. 199. By the Roman Law, the essence of Marriage was Consent; the Consent "both of those who come together, and of those under whose power they are." This Consent was to be manifested by some public act; for instance, Declaration before friends, and afterwards continued Cohabitation for a year. This mode of marriage was Usus. But ancient custom had handed down and sanctioned other forms of marriage, confarreatio and coemptio, by which the woman became part of the man's household. She was then said in manum viri convenire. 200. By the old Law of England*, a Contract made per verba de præsenti, by words in the present tense, was a valid marriage: thus, I take thee M. for my husband: I take thee N. for my wife. The same is still the case by the Law of Scotland. Also, a promise of marriage per verba de futuro ;-I will marry thee;-became a valid marriage by cohabitation; in the same way in which a contract concerning goods became valid by the delivery of the goods. VOL. I. * Bl. I. 439. I By later English Statutes, marriages in England were, for many purposes, not allowed to be valid, except such as were celebrated after due notice (Banns or License) in some parishchurch or public chapel; and by a person in Sacred Orders. But this restriction has since been enlarged, so that the religious part of the ceremony is no longer necessary. 201. With reference to the grounds on which Marriage has very generally been accompanied with a religious sanction, we may remark, that the Conjugal Union is contemplated, not as a mere Contract for Cohabitation, but as an engagement binding the parties to mutual affection, and to a community of the scheme and ends of life. Hence a mere legal Contract, which must regard actions alone, cannot express its full import. The Sentiment of Duty must be brought into operation, and the appeal to this sentiment belongs to the province of Religion (84). 202. Divorce is the Separation of the Marriage Union. According to the Roman Law, as the Consent and Conjugal Affection of the parties was an essential part of a marriage, their acquiescence was necessary to its continuance. Either party might declare his or her intention to dissolve the connexion; and no judicial decree, or interference of public authority, was requisite in order to carry this purpose into effect. Yet such separations were generally made with some form. As there was Marriage by confarreatio and coemptio, there was Divorce by diffarreatio and emancipatio. Repudium was the rejection of a Marriage promised by Sponsalia (Betrothing), but not completed. The practice of Divorce was afterwards checked by Law (the Lex Papia Poppaa). Under the Christian Emperors it was punished in various ways; but still the power remained, subject to certain forms in its exercise. 203. There is no Law of England which authorizes Divorce. Every particular case must be the effect of a Special Act of Parliament. Even the gravest violation of the Rights of Marriage, Adultery, is, by the English Law, only cause of separation from bed and board; it does not lead to a dissolution of the Marriage. The reason given for this by the Commentators is, that if Divorce were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent. The Ecclesiastical Courts, which have a portion of the jurisdiction concerning Marriages, in virtue of the religious character of the ordinance, can, upon due grounds, grant a separation, not only a mensâ et thoro, but a total Divorce a vinculo matrimonii. But this must be for causes of impediment existing before the marriage. When these are shown, the marriage is declared null, as having been unlawful ab initio, and the parties are separated pro salute animarum, that they may not endanger their Souls by living in a state of known sin. But still the Ecclesiastical Law, like the Common Law of England, grants no Divorce for any Supervenient Cause; according to Commentators*, it deems so highly, and with such mysterious reverence, the nuptial tie, that it will not allow it to be unloosed for any cause whatever that arises after the Union is made. But it is mainly moved to take this view of marriage by the authority of religion. 204. As we have already seen, the only kind of Marriage which is recognized by the Roman Law as complete, is that of one husband with one wife. Climate does not necessarily occasion any exception to this Rule. Thus the Law of Justinian, promulgated by the Romans in the climate of modern Turkey, is expresst: "Duas uxores eodem tempore habere non licet." Yet the Laws of several Countries in various ways take note of other unions arising from the irregular operation * Bl. 1. 440. + Inst. 1. 10. 6. It is not lawful to have two wives at the same time. of those Desires and Affections which lead to Family connexions. There are various provisions in the Laws of Rome respecting Concubines; and in our own Laws, with regard to Illegitimate Children, or Bastards. By the Roman Law, a true marriage could only take place between Roman citizens: "Justas nuptias inter se cives Romani contrahunt qui secundùm precepta legum coeunt." No other unions were complete marriages. It depends upon the law, and the general structure of each State, whom a citizen is allowed to marry. He may be prohibited from taking a wife beyond a certain circle. He may be forbidden to marry a stranger. He may be compelled to marry, not only within his own Nation, but within his own Tribe. 66 205. On the other hand, men and women are, in almost all countries, forbidden to marry within a certain circle of relationship. Marriages within these limits were forbidden by the Romans as Nuptia incesta; and the union of persons so related is Incest. Such unions were those of Parents and Children, Brothers and Sisters†. Nuptiæ consistere non possunt inter eas personas quæ in numero parentium liberorumve sunt, sive proximi sive ulterioris gradus sunt, usque ad infinitum." The degrees of kindred between which marriage is prohibited have been different in different times and places. But everywhere incestuous unions have been looked upon not only with condemnation, but with horrour. It has been conceived that there is a Divine curse upon them. The chastity of woman, which, as we have seen (187), is so highly prized, requires to be guarded and supported by the * Inst. 1. 10. 1. That is a true marriage which is contracted between Roman citizens who come together in the manner directed by the Law. + Marriage cannot take place between those persons who stand in the relation of parents and children, whether of a near or of a more remote degree, to any number of steps. sympathy and reverence of her Family for this treasure. Her relatives, with whom she familiarly lives, especially her Father and her Brothers, are the natural Guardians of her purity. In the intercourse between men and women not withheld by any impediment, the thoughts often turn to the union of sexes. Men are prone to solicit, and women apt to yield, when the union is one on which the thoughts are allowed to dwell. The opportunity and authority which near relationships usually give, would add to this tendency, if the belief of a Divine curse upon transgression did not keep the thoughts and affections in harmony with the reverence for the woman's chastity. The Law supports this tone of the thoughts and affections, by its prohibition of incestuous marriages. CHAPTER VI. THE RIGHTS OF GOVERNMENT, OR 206. We have already stated (48), that among the most powerful Springs of Human Action is the Desire of Civil Society; and that man cannot exist as man except he exist in Civil Society, under the sway of Rules of Action really enforced by some of the Members of the Community. Those Members of the Community, whose office it thus is to enforce the Rules, through which the Community subsists, are, for this purpose, invested with Rights, which are here termed Rights of Government. of these Rights is spoken of as having Authority in the Community. The possessor 207. We have rights of this kind even in the Family; and especially in Families where the paternal Power is most |