[1] Most of the islands have each three or four alternative names.
MARQUESS, or MARQUIS (Fr. _marquis_, Ital. _marchese_; from med. Lat.
_marchio_, _marchisus_, i.e. _comes marchiae_, "count of the March"), a
title and rank of nobility. In the British peerage it is the second in
order and therefore next to duke. In this sense the word was a
reintroduction from abroad; but lords of the Welsh and Scottish
"marches" are occasionally termed _marchiones_ from an early date. The
first marquess in England was Robert de Vere, the 9th earl of Oxford,
who was created marquess of Dublin by Richard II. on the 1st of December
1385 and assigned precedence between dukes and earls. On the 13th of
October following the patent of this marquessate was recalled, Robert de
Vere then having been raised to a dukedom. John de Beaufort, earl of
Somerset, the second legitimate son of John of Gaunt, was raised to the
second marquessate as marquess of Dorset on the 29th of September 1397,
but degraded again to earl in 1399. The Commons petitioned for the
restoration of his marquessate in 1402, but he himself objected because
"le noun de Marquys feust estraunge noun en cest Roialme." From that
period this title appears to have been dormant till the reign of Henry
VI., when it was revived (1442), and thenceforward it maintained its
place in the British peerage. Anne Boleyn was created marchioness of
Pembroke in 1532. A marquess is "most honourable," and is styled "my
lord marquess." His wife, who is also "most honourable," is a
marchioness, and is styled "my lady marchioness." The coronet is a
circlet of gold on which rest four leaves and as many large pearls, all
of them of equal height and connected. The cap and lining, if worn, are
the same as in the other coronets (see CROWN and CORONET). The mantle of
parliament is scarlet, and has three and a half doublings of ermine.
In France, so early as the 9th century, counts who held several counties
and had succeeded in making themselves quasi-independent began to
describe themselves as _marchiones_, this use of the word being due to
the fact that originally none but the margraves, or counts of the
marches, had been allowed to hold more than one county. The _marchio_ or
marquess thus came to be no more than a count of exceptional power and
dignity, the original significance of the title being lost. In course of
time the title was recognized as ranking between those of duke and
count; but with the decay of feudalism it lost much of its dignity, and
by the 17th century the savour of pretentiousness attached to it had
made it a favourite subject of satire for Molière and other dramatists
of the classical comedy. Abolished at the Revolution, the title of
marquess was not restored by Napoleon, but it was again revived by Louis
XVIII., who created many of Napoleon's counts marquesses. This again
tended to cheapen the title, a process hastened under the republic by
its frequent assumption on very slender grounds in the absence of any
authority to prevent its abuse. In Italy too the title of _marchese_,
once borne only by the powerful margraves of Verona, has shared the fate
of most other titles of nobility in becoming common and of no great
social significance. (See also MARGRAVE.) (J. H. R.)
MARQUETRY (Fr. _marqueterie_, from _marqueter_, to inlay, literally to
mark, _marquer_), an inlay of ornamental woods, ivory, bone, brass and
other metals, tortoise-shell, mother-of-pearl, &c., in which shaped
pieces of different materials or tints are combined to form a design. It
is a later development of the ornamental inlays of wood known by the
name of Intarsia, and though in the main the latter was a true inlay of
one or more colours upon a darker or lighter ground, while marquetry is
composed of pieces of quite thin wood or other material of equal
thickness laid down upon a matrix with glue, there are examples of
Intarsia in which this mode of manufacture was evidently followed. For
instance, the backs of the stalls in the cathedral of Ferrara show the
perspective lines of some of the subjects traced upon the ground where
the marquetry has fallen off, but none of the sinkings in the surface
which would be there if the panels had been executed as true inlays. In
the endeavour to gain greater relief, shading and tinting the wood were
resorted to, the shading being generally produced by scorching, either
with a hot iron or hot sand, and the tinting by chemical washes and even
by the use of actual colour, but the result is usually hardly
commensurate with the labour expended. A combination of tortoise-shell
and metal, the one forming the ground and the other the pattern upon it,
which may be classed as marquetry also appears in the 17th century. The
subjects of the _intarsiatori_ are generally arabesques or panels with
elaborate perspectives, either of buildings or cupboards with different
articles upon the shelves seen through half-open doors, which themselves
are frequently of lattice-work delineated with extraordinary perfection,
though figure subjects occur also. The later _marqueteurs_ used a freer
form of design for the most part, and scrolls and bunches of flowers
appear in profusion, while if architectural forms occur they are
generally in the shape of ruins amid landscape. The greater portion of
the examples in England are importations, either from Holland (in which
country very fine work was produced during the latter half of the 16th
and 17th centuries) or from France. The reputation of the Dutch
_marqueteurs_ was so great that Colbert engaged two, named Pierre Gole
and Vordt, for the Gobelins at the beginning of the 17th century. Jean
Macé of Blois, the first Frenchman known to have practised the art, who
was at work in Paris from 1644 (when he was lodged in the Louvre), or
earlier, till 1672, as a sculptor and painter, learnt it in the
Netherlands. His title was "menuisier et faiseur de cabinets et tableaux
en marqueterie de bois"; but as early as 1576 a certain Hans Kraus had
been called "marqueteur du roi." Jean Macé's daughter married Pierre
Boulle, and the greatest of the family, André Charles Boulle (q.v.),
succeeded to his lodging in the Louvre on his death in 1672. The members
of this family are perhaps the best known of the French _marqueteurs_.
Their greatest triumphs were gained in the marquetry of metal and
tortoise-shell combined with beautifully chiselled ormulu mountings; but
many foreign workmen found employment in France from the time of
Colbert, and some of them rose to the highest eminence. The names of
Roentgen, under whom the later German marquetry perhaps reached its
highest point, Riesener and Oeben, testify to their nationality. A good
deal of marquetry was executed in England in the later Stuart period,
mainly upon long-case clocks, cabinets and chests of drawers, and it is
often of real excellence. Marquetry in a shallower form was also
extensively used in the latter part of the 18th century. The most
beautiful examples of the art in Italy are mainly panels of choir stalls
or sacristy cupboards, though marriage coffers were also often
sumptuously decorated in this manner. With the increase in luxury and
display in the 17th and 18th centuries in France and Germany cabinets
and escritoires became objects upon which extraordinary talent and
expenditure were lavished. In South Germany musical instruments, weapons
and bride chests were often lavishly decorated with marquetry. The
cabinets are of elaborate architectural design with inlays of ebony and
ivory or with veneers of black and white, the design counterchanging so
that one cutting produced several repeats of the same pattern in one
colour or the other. In modern practice as many as four or even six
thicknesses are put together and so cut. When all the parts have been
cut and fitted together face downwards paper is glued over them to keep
them in place and the ground and the veneer are carefully levelled and
toothed so as to obtain a freshly worked surface. The ground is then
well wetted with glue at a high temperature and the surfaces squeezed
tightly together between frames called "cauls" till the glue is hard.
There are several modes of ensuring the accurate fitting of the various
parts, which is a matter of the first importance.
MARQUETTE, JACQUES (1637-1675), French Jesuit missionary and explorer,
re-discoverer (with Louis Joliet) of the Mississippi. He was born at
Laon, went to Canada in 1666, and was sent in 1668 to the upper lakes of
the St Lawrence. Here he worked at Sault Ste Marie, St Esprit (near the
western extremity of Lake Superior) and St Ignace (near Michilimackinac
or Mackinaw, on the strait between Huron and Michigan). In 1673 he was
chosen with Joliet for the exploration of the Mississippi, of which the
French had begun to gain knowledge from Indians of the central prairies.
The route taken lay up the north-west side of Lake Michigan, up Green
Bay and Fox river, across Lake Winnebago, over the portage to the
Wisconsin river, and down the latter into the Mississippi, which was
descended to within 700 m. of the sea, at the confluence of the Arkansas
river. Entering the Mississippi on the 17th of May, Joliet and his
companion turned back on the 17th of July, and returned to Green Bay and
Michigan (by way of the Illinois river) at the end of September 1673. On
the journey Marquette fell ill of dysentery; and a fresh excursion which
he undertook to plant a mission among the Indians of the Illinois river
in the winter of 1674-1675 proved fatal. He died on his way home to St
Ignace on the banks of a small stream (the lesser and older Marquette
River) which enters the east side of Lake Michigan in Marquette Bay (May
18, 1675). His name is now borne by a larger watercourse which flows
some distance from the scene of his death.
See Marquette's _Journal_, first published in Melchissédech Thévenot's
_Recueil de Voyages_ (Paris, 1681), and fully given in Martin's
_Relations inédites_, and in Shea's _Discovery and Exploration of the
Mississippi Valley_ (New York, 1852); cf. also Pierre Margry's
_Découvertes ... des Français dans l'ouest et dans le sud de
l'Amérique septentrionale_ (1614-1754); _Mémoires et documents
originaux_ (Paris, 1875), containing Joliet's _Détails_ and
_Relations_; Francis Parkman, _La Salle and the Discovery of the Great
West_ (Boston 1869-1878), esp. pp. x., 20, 32-33, 49-72.
MARQUETTE, a city, a port of entry and the county seat of Marquette
county, Michigan U.S.A., on the south shore of Lake Superior. Pop.
(1900), 10,058 (3460 foreign-born); (1910), 11,503. It is served by the
Duluth, South Shore & Atlantic, the Marquette & South-Eastern, the
Chicago, Milwaukee & St Paul, the Chicago & North-Western, and the Lake
Superior & Ishpeming railways. The city, which is situated on a bluff 100
ft. above the lake, in a region characterized by rounded hills and
picturesque irregularities, has a delightful climate, and is a popular
summer resort. Presque Isle park (400 acres), a headland north of the
city, is one of its principal attractions. Marquette is the seat of the
Northern State Normal School (established 1899) and of the state house of
correction and branch prison (established 1885). A county-court-house,
the Peter White library, and the Federal building are the most prominent
public buildings. Marquette is the seat of Roman Catholic and Protestant
Episcopal bishoprics. The city is best known as a shipping centre of one
of the richest iron-ore districts in the world, and its large and
well-equipped ore docks are among its most prominent features. Marquette
is the port of entry of the customs district of Superior. In 1896 its
imports were valued at $358,505 and its exports at $4,708,302; in 1908,
imports $1,845,724 and exports $7,040,473. Foundries, railway
machine-shops, lumber and planing-mills, brewery and bottling works, and
quarries of brownish-red sandstone contribute largely to the city's
economic importance. The charcoal iron blast-furnaces of the city
manufacture pig-iron, and, as by-products, wood alcohol and acetic acid,
recovered from the smoke of the charcoal pits. The value of the city's
factory products increased from $1,585,083 in 1900 to $2,364,081 in 1905,
or 49.1%. The first settlement was made about 1845, and in 1849 it was
named Worcester; but "Marquette" was soon substituted in honour of
Jacques Marquette. It was incorporated as a village in 1859, and
chartered as a city in 1871.
MARR, CARL (1858- ), American artist, was born at Milwaukee, Wisconsin,
on the 14th of February 1858, the son of an engraver. He was a pupil of
Henry Vianden in Milwaukee, of Schauss in Weimar, of Gussow in Berlin,
and subsequently of Otto Seitz, Gabriel and Max Lindenschmitt in Munich.
His first work, "Ahasuerus, the Wandering Jew," received a medal in
Munich. One of his pictures, "Episode of 1813," is in the Royal Hanover
Gallery, and his "Germany in 1806" received a gold medal in Munich and
is in the Royal Academy of Koenigsberg. A large canvas "The
Flagellants," now in the Milwaukee public library, received a gold medal
at the Munich Exposition in 1889. Another canvas, "Summer Afternoon," in
the Phoebe Hearst collection, received a gold medal in Berlin, in 1892.
Marr became a professor in the Munich Academy in 1893, and in 1895 a
member of the Berlin Academy of Arts.
MARRADI, GIOVANNI (1852- ), Italian poet, was born at Leghorn, and
educated at Pisa and Florence. At the latter place he started with
others a short-lived review, the _Nuovi Goliardi_, which made some
literary sensation. He became a teacher at various colleges, and
eventually an educational inspector in Massa Carrara. He was much
influenced by Carducci, and became known not only as a critic but as a
charming descriptive poet, his principal volumes of verse being _Canzone
moderne_ (1870), _Fantasie marnie_ (1881), _Canzoni e fantasie_ (1853),
_Ricordi lirici_ (1884), _Poesie_ (1887), _Nuovi canti_ (1891) and
_Ballate moderne_ (1895).
MARRAKESH (erroneously MOROCCO or MAROCCO CITY), one of the
quasi-capitals of the sultanate of Morocco, Fez and Mequinez being the
other two. It lies in a spacious plain--Blad el Hamra, "The Red"--about
15 m. from the northern underfalls of the Atlas, and 96 m. E.S.E. of
Saffi, at a height variously estimated at 1639 ft. (Hooker and Ball) and
1410 ft. (Beaumier). Ranking during the early centuries of its existence
as one of the greatest cities of Islam, Marrakesh has long been in a
state of grievous decay, but it is rendered attractive by the
exceptional beauty of its situation, the luxuriant groves and gardens by
which it is encompassed and interspersed, and the magnificent outlook
which it enjoys towards the mountains. The wall, 25 or 30 ft. high, and
relieved at intervals of 360 ft. by square towers, is so dilapidated
that foot-passengers, and in places even horsemen, can find their way
through the breaches. Open spaces of great extent are numerous within
the walls, but for the most part they are defaced by mounds of rubbish
and putrid refuse. With the exception of the tower of the Kutubia Mosque
and a certain archway which was brought in pieces from Spain, there is
not, it is asserted, a single stone building in the city; and even
bricks (although the local manufacture is of excellent quality) are
sparingly employed. _Tabiya_ or rammed concrete of red earth and stone
is the almost universal building material, and the houses are
consequently seldom more than two storeys in height. The palace of the
sultan covers an extensive area, and beyond it lie the imperial parks of
Agudal, the inner one reserved for the sultan's exclusive use. The tower
of the Kutubia is a memorial of the constructive genius of the early
Moors; both it and the similar Hasan tower at Rabat are after the type
of the contemporary Giralda at Seville, and if tradition may be trusted,
all three were designed by the same architect, Jabir. The mosque to
which the tower belongs is a large brick building erected by 'Abd el
Mumin; the interior is adorned with marble pillars, and the whole of the
crypt is occupied by a vast cistern excavated by Yakub el Mansur. Other
mosques of some note are those of Ibn Yusef, El Mansur and El Mo'izz;
the chapel of Sidi Bel Abbas, in the extreme north of the city,
possesses property of great value, and serves as an almshouse and
asylum. There is a special Jews' quarter walled off from the rest. The
general population is of a very mixed and turbulent kind; crimes of
violence are common, and there are many professional thieves. The murder
of a Frenchman, Dr Mauchamp, in March 1907, by the rabble of Marrakesh
was the immediate cause of the occupation of Udja by France (see
MOROCCO: _History_). Almost the only manufacture extensively prosecuted
is that of Morocco leather, mainly red and yellow, about 1,500 men being
employed as tanners and shoemakers. Scottish missionaries and a few
European traders have become established here. The city was founded in
1062 by Yusef bin Tashfin. Before it was a hundred years old it is said
to have had 700,000 inhabitants, but the population in 1906 probably did
not exceed 50,000 to 60,000.
See Leo Africanus, and Paul Lambert's detailed description in _Notice
sur la ville de Maroc_ (Paris, 1868). Lambert's plan of Marrakesh is
reproduced with some additions by Dr A. Leared, and another may be
found in Gatell.
MARRI, a Baluch tribe on the Dera Ghazi Khan border of Baluchistan. In
the census of 1901 they numbered 19,161 and their fighting strength is
about 3000. Their relations with the British commenced in 1840 with
attacks made on the communications of Sir John Keane's army, after it
had passed through the Bolan. An attempt was made to punish the tribe,
which ended in disastrous failure. Major Clibborn was repulsed in an
attempt to storm the Naffusak Pass, losing 179 killed and 92 wounded out
of 650. Many of his force died of heat and thirst. The fort of Kahan,
which he was trying to relieve at the time, was forced to capitulate
with the honours of war. The Marris, however, joined the British against
the Bugtis in 1845. After the annexation of Sind in 1843 the Marris gave
much trouble, but were pacified by the policy of General John Jacob and
Sir Robert Sandeman. In 1880 during the second Afghan War they made
frequent raids on the British line of communications, ending with the
plunder of a treasure convoy. A force of 3070 British troops under
Brigadier-General Macgregor marched through the country, and the tribe
submitted and paid 1¼ lakh (£12,500) out of a fine of 2 lakhs (£20,000);
they also gave hostages for their future good behaviour. Since then they
have given little trouble.
The Marri-Bugti country is classed as a tribal area in Baluchistan,
politically controlled from Sibi, but enjoying a large measure of
autonomy under its own chieftains. Total area, 7129 sq. m.; total pop.
(1901), 38,919, almost equally divided between the two tribes of Marris
and Bugtis.
MARRIAGE. Marriage (Fr. _mariage_, from _marier_, to marry; Lat.
_maritare_, from _mas_, _maris_, a male), or "matrimony" (Lat.
_matrimonium_, from _mater_, a mother), may be defined either (a) as the
act, ceremony, or process by which the legal relationship of husband and
wife is constituted; or (b) as a physical, legal and moral union between
man and woman in complete community of life for the establishment of a
family.[1] It is possible to discriminate between three stages, taking
marriage in the latter sense as an institution--the animal or physical
stage, the proprietary or legal stage, and the personal or moral stage.
In the first or physical stage the relation of the sexes was
unregulated, and in many cases of brief duration. In the second or legal
stage greater permanence was secured in marriage by assigning the
husband a property right in his wife or wives. In the last stage the
proprietary relation falls more and more into the background, and the
relation of husband and wife approximates that of two individuals
entirely equal before the law. Although in the history of marriage these
three stages have been roughly successive, the order of their entering
the conscious experience of the individual is usually the reverse of
their order in the development of the race; and in the solemnization of
a marriage based upon affection and choice the growth of the relation
begins with the moral, advances to the legal and culminates in the
physical union, each one of these deriving its meaning and its worth
from the preceding. In most legal systems marriage, in the sense of a
ceremony, takes the form of a contract--the mutual assent of the parties
being the prominent and indispensable feature. Whether it is really a
contract or not, and if so to what class of contracts it belongs, are
questions which have been much discussed, but into which it is not
necessary to enter. While the consent of parties is universally deemed
one of the conditions of a legal marriage, all the incidents of the
relationship constituted by the act are absolutely fixed by law. The
jurist has to deal with marriage in so far as it creates the legal
status of husband and wife. It should be added that, while marriage is
generally spoken of by lawyers as a contract, its complete isolation
from all other contracts is invariably recognized. Its peculiar position
may be seen at once by comparing it with other contracts giving rise to
continuous relationships with more or less indefinite obligations, like
those of landlord and tenant, master and servant, &c. In these the
parties may in general make their rights and duties what they please,
the law only intervening when they are silent. In marriage every
resulting right and duty is fixed by the law.
Besides true marriage, inferior forms of union have from time to time
been recognized, and may be briefly noticed here. These have all but
disappeared from modern society, depending as they do on matrimonial
restrictions now obsolete.
The institution of slavery is a fruitful source of this kind of
debased matrimony. In Roman law no slave could contract marriage
whether with another slave or a free person. The union of male and
female slaves (_contubernium_) was recognized for various purposes; a
free woman entering into a union with a slave incurred under the S.C.
Claudianum the forfeiture of her own liberty; but the bondwoman might
be the concubine of a freeman. In the United States, where slavery was
said to be regulated by the principle of the civil law, the marriage
of slaves was so far recognized that on emancipation complete
matrimony took effect and the children became legitimate without any
new ceremony.
In Roman law no legal marriage could be contracted unless there was
_connubium_ between the parties. Originally there was no connubium
between plebs and patricians, and the privilege was conceded after a
long struggle by the Lex Canuleia. In later times Latini and Peregrini
were excluded from connubium except where the right had been expressly
conferred. The great matrimonial law of the early empire (Lex Julia et
Papia Poppaea) introduced restrictions depending on the condition of
the parties which later legislation extended and perpetuated. Senators
under that law were forbidden to marry freedwomen or women of inferior
rank, and the husband of a freedwoman becoming a senator was set free
from his marriage. In the canon law[2] new restrictions were
developed. Persons who bound themselves not to marry were deemed
incapable of marrying. The order of the clergy were forbidden to
marry. And disparity of faith was recognized by the early church as a
bar to matrimony, e.g. between Christians and pagans and between
orthodox and heretics (see _Dictionary of Christian Antiquities_, art.
"Marriage").
CONCUBINAGE, which such restrictions tended to develop, is noticed
under a separate heading (q.v.). It might be described as marriage
which has no consequences, or only slight and peculiar consequences,
in legal _status_. In the left-handed or "morganatic" marriages of the
German royal families we have the nearest approach ever made by
concubinage to true marriage, the children being legitimate, but
neither they nor the wife acquiring any right to the rank or fortune
of the husband. The marriage of persons of different religions
frequently requires the intervention of the law as to the faith of the
children, more particularly in Europe as between Roman Catholics and
Protestants. English law gives the father, except under special
circumstances, the right to dictate the faith of his children (see
INFANT). The practice on this point varies in Europe--the question
being ignored in French law, Germany following in some parts the same
rule as England, in others giving effect to ante-nuptial stipulations.
In Ireland mixed marriages (i.e. between Roman Catholic and
Protestant) were by 19 Geo. II. c. 13 null and void if celebrated by a
Roman Catholic priest. This act was repealed by 33 & 34 Vict. c. 110,
which permits mixed marriages to be validly celebrated by an
Episcopalian or Roman Catholic clergyman, subject to conditions set
forth in § 38.
_Roman law._--The three primitive modes of marriage were _confarreatio_,
_coemptio in manum_, and _usus_, all of which had the effect of placing
the woman in the "power" (_manus_) of her husband, and on the same
footing as the children. The first was a religious ceremony before ten
witnesses, in which an ox was sacrificed and a wheaten cake broken and
divided between the spouses by the priest. _Coemptio_ was a conveyance
of the woman by _mancipatio_, and might be described as a fictitious
sale _per aes et libram_, like that employed in emancipation and
testamentary disposition and other processes. _Usus_ was the acquisition
of the wife by prescription, through her cohabiting with the husband for
one year, without having been absent from his house three continuous
nights. But a true marriage might be concluded without adopting any of
these modes, and they all fell into desuetude and with them the
subjection of the wife to the _manus_. Marriage without _manus_ was
contracted by the interchange of consent, without writing or formality
of any kind. By some jurists it is regarded as incomplete until
consummated by delivery of the woman, and is accordingly referred to the
class of _real_ contracts. The restrictions as to age, relationship by
consanguinity and affinity, previous marriage, &c., were in the main
those which have continued to prevail in modern Europe with one
important exception. The consent of the _paterfamilias_ to the marriage
of the children under his power was essential.
_Canon law._--The canon law of marriage is based partly on the Roman
law, the validity of which the Church from the first recognized, partly
on the Jewish law as modified by the new principles introduced by Christ
and his apostles, developed by the fathers of the Church and medieval
schoolmen, and regulated and defined by popes and councils. The most
important of these principles was that of the indissolubility of
marriage, proclaimed by Christ without qualification according to Mark
x. 11, 12, and with the qualifying clause "saving for the cause of
fornication" according to Matt. v. 32. This lofty view of marriage,
according to which man and wife are made "one flesh" by the act of God
("What therefore God hath joined together, let no man put asunder," Mark
x. 9) was, however, modified by the idea of the consummating act of
marriage as in itself something unholy, a result of the Fall. Christ
himself, indeed, did not teach this; but for St Paul marriage is clearly
a concession to the weakness of the flesh (1 Cor. vii.). "The time is
short," and in view of the imminent coming of the Lord the procreation
of children a matter of no importance (v. 29), but "it is better to
marry than to burn" (v. 9). He is, however, obviously not clear on the
point, and at the end of his argument strikes a note of doubt (v. 40);
elsewhere he defends marriage, against those who would have forbidden it
altogether, as a gift of God (1 Tit. iv. 3-5) and even, in seeming
contradiction to 1 Cor. vii. 29, commands the bearing of children (1
Tit. v. 14). Finally it is to St Paul that the idea of marriage as a
sacrament is to be traced, in the mystic comparison of the relations of
husband and wife to those of Christ and his Church (Eph. v. 23-32).
These are the main foundations in Scripture on which the Christian law
of marriage is built up, and they are obviously principles which admit
of a large amount of variety of interpretation and of practice. They
were developed in the early Church under the influence of the rapidly
growing passion for the celibate life, partly an outcome of the same
dualistic principle which produced the asceticism of the Jewish Essenes
and of the Gnostics, partly perhaps a natural reaction from the
appalling moral corruption of the decaying empire. Marriage, it is true,
from being no more than a terminable civil contract, became a thing
holy, a mystic union of souls and bodies never to be divided; valid,
indeed, but not spiritually complete, without the public blessing of the
Church (Tertullian, _Ad uxorem_, lib. ii. cap. 9); and from Augustine's
time onward it was reckoned as a sacrament. But at the same time there
was a tendency to restrict its rights and its range. So far as marriage
was a physical union, this had for its object solely the perpetuation of
the race and the avoidance of fornication; the most that was conceded
was that the intention of having offspring not only made the conjugal
act blameless, but even gave to the desire that inspired it an element
of good (Augustine, _de nupt. et conc._ 3). But the ideal married life
was that attributed to Mary and Joseph. Thus Augustine cited this as an
example that a true marriage may exist where there is a mutual vow of
chastity (_op. cit._ 12), and held that the sooner this relation was
established the better (_de bono conjug._ 22). Marriage being then an
inferior state, to be discouraged rather than the reverse, the tendency
was rapidly to narrow the field within which it might be contracted.
Remarriage (bigamy) was only allowed after many struggles, and then only
to the laity; St Paul had laid down that a "bishop" must be "the husband
of one wife," and to this day the priests of the Orthodox Eastern Church
may not remarry. Clerical celibacy, at first a counsel of perfection,
was soon to become the rule of the Church, though it was long before it
was universally enforced in the West; in the East it still applies only
to monks, nuns and bishops (see CELIBACY). The marriage of the laity was
hampered by the creation of a number of impediments. The few and
definite prohibitions of the Roman and of the Jewish law (Lev. xviii.
6-18; xx.) in the matter of marriage between kindred, were indefinitely
extended; until in 506 the council of Agde laid it down that any
consanguinity or affinity whatever constituted an impediment.[3]
Moreover, man and wife being "one flesh," the Church exaggerated
relationship by affinity into equal importance with that of
consanguinity as an impediment to matrimony; and, finally, to all this
added the impediments created by "spiritual affinity," i.e. the
relations established between baptizer and baptized, confirmer and
confirmed, and between godparents, their godchildren and their
godchildren's relatives.
The result of this system was hopeless confusion and uncertainty, and it
was early found necessary to modify it. This was done by Pope Gregory
I., who limited the impediment to the 7th degree of relationship
inclusive (civil computation)[4] which was afterwards made the law of
the empire by Charlemagne. Later still Innocent III. found it necessary
again to issue a decree (4th Lateran Council) permitting marriages
between a husband and the relations of his wife, and vice versa, beyond
the 4th degree inclusive (canonical computation).[5] This remains the
canonical rule of the Roman Catholic Church. As regards impediments due
to spiritual affinity, these were limited by the Council of Trent to the
relation of the baptizer and baptized; the baptizer and the parents of
the baptized; the baptizer and the godfather and godmother; the
godparents and the baptized and its parents: i.e. a godfather may not
marry the mother of the child he has held at the font, nor the godmother
the father of such child.
In the fully developed canon law impediments to marriage are of two
kinds, public and private (_impedimenta publica_ and _privata_), i.e.
according as the objection arises out of the very nature of marriage
itself or from consideration for the rights of particular persons; near
relationship, for instance, is a public impediment, impotence
(_impotentia_) and force (_vis et metus_) are private impediments.
Impediments are further divided into separating (_impedimenta
dirimentia_) or merely suspensive (_impedimenta tantum impedientia_); to
the first class belongs, e.g. a previous marriage not dissolved by
death, which involves the nullification of the marriage even where
through ignorance the crime of bigamy is not involved; to the second
belongs the case of one or both of the contracting parties being under
the age of puberty.[6] Impediments, moreover, are absolute or relative,
according as they are of universal application or only affect certain
persons; near relationship, for instance, is an absolute impediment,
difference of religion between the parties a relative impediment. In
addition to consanguinity and affinity, impuberty and existing marriage,
the canon law lays down as public and absolute impediments to marriage
the taking of holy orders and the vows of chastity made on entering any
of the religious orders approved by the Holy See. In these impediments
the canon law further distinguishes between those which are based on the
law of nature (_jus naturae_) and those which are based on the law of
the Church (_jus ecclesiae_). From impediments based on the law of
nature, or of God, there is no power even in the pope to dispense; e.g.
marriage of father and daughter, brother and sister, or remarriage of
husband or wife during the lifetime of the wife or husband of another
marriage, which is held to be a violation of the very nature of marriage
as an indissoluble union.[7] From impediments arising out of the law of
the Church dispensations are granted, more or less readily, either by
the pope or by the bishop of the diocese in virtue of powers delegated
by the pope (see DISPENSATION). Thus dispensations may be granted for
marriage between persons related by consanguinity in any beyond the 2nd
degree and not in the direct line of ascent or descent; e.g. between
uncle and niece (confined by the council of Trent to the case of royal
marriages for reasons of state) and between cousins-german, or in the
case of marriage with a heretic. In this latter case a dispensation is
now (i.e. since the papal decrees _ne temere_ of the 2nd of August 1907,
which came into force at Easter 1908) only granted on condition that the
parties are married by a Catholic bishop, or a priest accredited by him,
that no religious ceremony shall take place except in a Catholic church,
and that all the children shall be brought up in the Roman Catholic
faith.[8]
In the absence of any impediment a marriage is according to the canon
law completed between baptized persons by the facts of consent and
consummation; the principle is still maintained that the parties to the
marriage, not the priest, are the "ministers of the sacrament"
(_ministri sacramenti_).[9] From the first, however, the Church, while
recognizing the validity of private contracts, enjoined the addition of
a public religious ceremony, so that they might be "sanctified by the
word of God and prayer" (1 Tim. iv. 5).[10] Tertullian (_de pudicitia_,
cap. iv.) says that clandestine marriages, not professed in the Church,
were reckoned among Christians as all but fornication, and he speaks of
the custom of seeking permission to marry from the bishop, priests and
deacons (_de monogamia_, cap. xi.). This latter precaution became
increasingly necessary as impediments were multiplied, and Charlemagne,
in a capitulary of 802, forbade the celebration of a marriage until "the
bishops, priests and elders of the people" had made diligent inquiry
into the question of the consanguinity of the parties. This was the
origin of the publication of banns which, long customary in France, was
made obligatory on the whole Church by Pope Innocent III. In the Eastern
Church the primitive practice survives in the ceremonial blessing by the
priest of the betrothal, as distinguished from the marriage ceremony.
The ecclesiastical recognition of clandestine marriages, however,
survived until the crying evil was remedied by a decree of the council
of Trent (Sess. xiv. _de matrim._),[11] which laid it down that for a
valid marriage it was at least necessary that consent should be declared
before a priest and in the presence of three witnesses. According to the
actual law of the Roman Catholic Church, then, a civil marriage is only
valid when the Tridentine decree has not been published; where this has
been published, or has been in practice without publication, such a
marriage can only become valid if followed by a religious ceremony in
the prescribed form. Where such form has not followed the ecclesiastical
courts must treat the marriage as voidable through the _impedimentum
clandestinitatis_.
Divorce, i.e. the annulment of marriage for any cause but an impediment
which makes the marriage _ipso facto_ void, is unknown to the Roman
Catholic Church. Separation _a vinculo matrimonii_ is only possible
under the canon law by a judicial decree of nullity (_annullatio
matrimonii_), which implies, not the severing of the ties of a real
marriage, but the solemn declaration that such marriage has never
existed. There may, however, be a "separation from bed and board" (_a
thoro et mensa_), even perpetual, which does not however give either
party the right to remarry during the lifetime of the other. But,
marriage not being regarded as a sacrament until consummated, it may be
dissolved, if non-consummation he proved, by one or both parties taking
the religious vows, or by papal dispensation. The Church claims
exclusive control over marriage, and the council of Trent anathematized
the opinion held by Luther and other Reformers, that it was properly a
subject for the civil courts (_si quis dixerit causas matrimoniales non
spectare ad judices ecclesiasticos anathema sit_, Sess. xxiv. cap. 2).
This attitude became of extreme political importance when even in
Catholic countries the codes established civil marriage as the only
legally binding form.
_England._--Marriage may be the subject of an ordinary contract on which
an action may be brought by either party. It is not necessary that the
promise should be in writing, or that any particular time should be
named. Promises to marry are not within the meaning of "agreement made
in consideration of marriage" in the statute of frauds, which requires
such agreements to be in writing. Contracts in restraint of marriage,
i.e. whose object is to prevent a person from marrying anybody whatever,
are void, as are also contracts undertaking for reward to procure a
marriage between two persons. These latter are termed marriage brocage
contracts.
Any man and woman are capable of marrying, subject to certain
disabilities, some of which are said to be canonical as having been
formerly under the cognisance of the ecclesiastical courts, others
civil. The effect of a canonical disability as such was to make the
marriage not void but voidable. The marriage must be set aside by
regular process, and sentence pronounced during the lifetime of the
parties. Natural inability at the time of the marriage to procreate
children is a canonical disability. So was relationship within the
prohibited degrees, which has been made an absolute avoidance of
marriage by the Marriage Act 1835. Civil disabilities are (1) the fact
that either party is already married and has a spouse still living;[12]
(2) the fact that either person is a party of unsound mind; (3) want of
full age, which for this purpose is fixed at the age of puberty as
defined in the Roman law, viz. fourteen for males and twelve for
females;[13] (4) relationship within the prohibited degrees.
The statute which lawyers regard as establishing the rule on this last
point is the 32 Hen. VIII. c. 38 (repealed in part by 2 & 3 Edw. VI. c.
23, in whole by 1 & 2 P. and M. c. 8, but revived by 1 Eliz. c. 1, and
so left as under the Act of Edward), which enacts that "no prohibition,
God's law except, shall trouble or impeach any marriage without the
Levitical degrees." The forbidden marriages, as more particularly
specified in previous statutes, are those between persons in the
ascending and descending line _in infinitum_, and those between
collaterals to the third degree inclusive, according to the computation
of the civil law. The prohibitions extend not only to _consanguinei_
(related by blood) but to _affines_ (related by marriage), now altered
so far as a deceased wife's sister is concerned (see below). The act of
1835 enacted that "all marriages which shall hereafter be celebrated
between persons within the prohibited degrees of consanguinity or
affinity shall be absolutely null and void to all intents and purposes
whatsoever." They had previously been only voidable. The act at the same
time legalized marriages within the prohibited degrees of affinity (but
not consanguinity) actually celebrated before the 31st of August 1835.
Marriage with a Deceased Wife's Sister.
For many years an active and ceaseless agitation was carried on on
behalf of the legalization in England of marriage with a deceased
wife's sister. In all the self-governing colonies, with the exception
of Newfoundland, the restriction had ceased to exist. The first act
legalizing marriage with a deceased wife's sister was adopted by South
Australia. The royal assent, however, was not given till the
parliament of that state had five times passed the bill. In quick
succession similar statutes followed in Victoria, Tasmania, New South
Wales, Queensland, New Zealand, West Australia, Barbados, Canada,
Mauritius, Natal and Cape Colony. As regards the Channel Islands,
marriages of the kind in question were made legal in 1899, and in 1907
in the Isle of Man.
In England the bill to render marriage with a deceased wife's sister
valid was first adopted by the House of Commons in 1850, and rejected
by the House of Lords in 1851. It was subsequently brought before the
legislature in 1855, 1856, 1858, 1859, 1861, 1862, 1866, 1869, 1870,
1871, 1872, 1873, 1875, 1877 and 1878 (Colonial bills), 1879 (6th May,
when in the House of Lords the prince of Wales and the duke of
Edinburgh voted in favour of it), 1880, 1882, 1883, 1884, 1886, 1888,
1889, 1890, 1891, 1896, and 1898 and 1900 (Colonial bills). In most
cases it passed the House of Commons but was rejected in the House of
Lords. The bill of 1896, however, which was judiciously drafted to
avoid the compulsory celebration by clergymen of marriages against
which they had conscientious scruples, was carried in the Lords. Both
the prince of Wales and the duke of York were among the "contents."
The prime minister and eighteen bishops, including the two
archbishops, voted against the bill, the earl of Rosebery and Lord
Kimberley for it. At the third reading the bill was carried by 142 to
104 votes. Its promoters, however, did not succeed in getting an
opportunity of bringing it before the House of Commons.
From 1896 to 1901 no further direct steps were taken, but in 1898 and
again in 1900 (May 28) the subject was brought forward in the House of
Lords by Lord Strathcona in the form of a bill under which marriages
with a deceased wife's sister contracted in any British colony should
be deemed valid for all purposes within the United Kingdom. In 1898,
and again in 1900, the bill was carried on the third reading without a
dissentient vote. The House of Commons took no action on either
occasion. An imperial bill reached a second reading in the House of
Commons in 1901 and again in 1902, but it was blocked by the High
Church opponents of the measure when attempts were made to get it to
the committee stage (Feb. 5 and June 6). The reform was, however,
finally adopted in 1906 under the title of the Colonial Marriages
(Deceased Wife's Sister) Act. The effect of the act was to make such
marriages legal in all respects, including the right of succession to
real property and to honours and dignities within the United Kingdom.
The natural sequence of the passing of the act of 1906 was the
reintroduction in 1907 of the bill relating to England. Introduced by
a private member, it was adopted by the government, passed the House
of Commons, and finally the House of Lords (on the second reading by
111 votes to 79), and became law as the Deceased Wife's Sister
Marriage Act, 1907. The act contains a proviso justifying clergymen in
refusing to solemnize marriages with a deceased wife's sister, and it
preserves the peculiar status of the wife's sister under the
Matrimonial Causes Act 1857, under which adultery with her by the
husband is incestuous adultery.
The celebration of marriages is now regulated wholly by statutory
legislation. The most important acts in force are the Marriage Acts
1823, 1836, 1886 and 1898.[14] The former regulates marriages within
the Church of England, but was intended to be of universal
application, Jews and Quakers only being excepted by section 31. It
requires either the previous publication of banns, or a licence from
the proper ecclesiastical authority. As to banns, the rule of the
rubric, so far as not altered by the statute, is required to be
observed. They must be published on three successive Sundays at
morning service after the second lesson, in the church of the parish
in which the parties dwell; the bishop may, however, authorize the
publication of banns in a public chapel. Seven days' notice must be
given to the clergyman of the names of the parties, their place of
abode, and the time during which they have lived there. If either
party is under age, the dissent of the parents or guardians expressed
at the time of publication of banns renders such publication null and
void. Licence in lieu of banns may only be granted by the archbishop,
bishop or other authority, for the solemnization of a marriage within
the church of the parish in which one of the parties shall have
resided for fifteen days before. Before a licence can be granted an
oath must be taken as to the fact of residence and that the necessary
consent has been obtained in the case of persons under age. The
father, or lawful guardian, is the proper person to consent to the
marriage of a minor, and the place of any such person incapacitated
mentally is taken by the lord chancellor. The absence of such consent
does not, however, avoid a marriage once solemnized. But if persons
wilfully intermarry (unless by special licence) in a place not being a
church or public chapel, or without due publication of banns or proper
licence, or before a person not in holy orders, the marriage is null
and void to all purposes. Marriage must be celebrated within three
months after banns or licence, and between the hours of eight in the
morning and three in the afternoon.
For the relief of the great body of Dissenters the act of 1836 was
passed. It permits marriage to be solemnized in two additional
ways--viz. (1) by certificate of the superintendent registrar of a
district without licence, and (2) by such certificate with licence. In
the first case, notice must be given to the registrar of the district
or districts within which the parties have resided for seven days
previous, which notice is inscribed in a marriage-notice book, open to
public inspection at all reasonable times, and thereafter suspended
for twenty-one days in some conspicuous place in the registrar's
office. Any person whose consent is necessary to an ecclesiastical
licence may forbid the issue of a certificate, but in default of such
prohibition the certificate will issue at the end of the twenty-one
days. The marriage may then take place on any day within three months
of the entry of notice, and in one of the following ways: (1) in a
certified place of religious worship, registered for the solemnization
of marriage; in that case a registrar of the district with two
witnesses must be present, and the ceremony must include a mutual
declaration of assent by the parties and a disavowal of any
impediment; (2) at the superintendent registrar's office, with the
same declaration, but with no religious service; (3) in a church
according to the usual form, the consent of the minister thereof
having been previously obtained; (4) according to the usages of Jews
and Quakers. The place of marriage in all cases must have been
specified in the notice and certificate.
In the second case, when it is desired to proceed by licence, notice
must be given to the registrar of the district in which one of the
persons resides, together with a declaration that he or she has
resided for fifteen days therein, that there is no impediment, and
that the necessary consents if any have been obtained. The notice is
not exhibited in the registrar's office, and the certificate may be
obtained at the expiration of one whole day after entry, together with
the licence. No registrar's licence can be granted for a marriage in
church or according to the forms of the Church of England--the
ecclesiastical authorities retaining their jurisdiction in that
respect. It is also provided that in the case of persons wilfully
intermarrying in a place other than that mentioned in the notice and
certificate, or without notice or certificate, &c., the marriage shall
be null and void.
The various rules as to consent of parents, &c., to the marriages of
minors are regulations of procedure only. The absence of the necessary
consent is not a disability invalidating a marriage actually
solemnized.
The Act 26 Geo. II. c. 33, commonly known as Lord Hardwicke's Act,
which forbids the solemnization of marriage without banns or licence,
also enacts that "in no case whatsoever shall any suit or proceeding
be had in any ecclesiastical court in order to compel a celebration
_in facie ecclesiae_, by reason of any contract of matrimony
whatsoever whether _per verba de presenti_ or _per verba de futuro_."
Blackstone observes that previous to this act "any contract made _per
verba de presenti_, or in words of the present tense, and in case of
cohabitation _per verba de futuro_ also, was deemed valid marriage to
many purposes; and the parties might be compelled in the spiritual
courts to celebrate it _in facie ecclesiae_."
Royal marriages in England have been subject to special laws. The
Royal Marriage Act of 1772 (12 Geo. III. c. 11), passed in consequence
of the marriages of the dukes of Cumberland and Gloucester, enacted
that "no descendant of his late majesty George II. (other than the
issue of princesses married or who may marry into foreign families)
shall be capable of contracting matrimony without the previous consent
of his majesty, his heirs and successors, signified under the Great
Seal. But in case any descendant of George II., being above
twenty-five years old, shall persist to contract a marriage
disapproved of by his majesty, such descendant, after giving twelve
months' notice to the privy council, may contract such marriage, and
the same may be duly solemnized without the consent of his majesty,
&c., and shall be good except both Houses of Parliament shall declare
their disapprobation thereto."
In 1886 an act was passed in the British parliament to remove doubts
which had been entertained as to the validity of certain marriages
solemnized in England when one of the parties was resident in
Scotland. The Summary Jurisdiction (Married Women) Act of 1895 enabled
a wife whose husband is convicted of an assault on her, or who has
been deserted by him, or been obliged owing to his cruelty to live
apart from him, to apply to the justices, who are empowered by the act
to make an order for separation and for payment by the husband to his
wife of such weekly sum, not exceeding two pounds, as they may
consider reasonable. The Marriage Act 1898 authorized the celebration
of marriages in places of worship duly registered for the
solemnization of marriages under the Marriage Act of 1836 without the
presence of the registrar, on condition of their being solemnized in
the presence of a person duly authorized by the governing body of the
place of worship in question. It also made further provision for the
due recording of all marriages in the general registers. The Marriages
Validity Act of 1899 removed doubts as to the validity of marriages in
England on Irish banns and in Ireland on English banns. Lastly, the
Marriage with Foreigners Act 1906 enabled a British subject desirous
of marrying a foreigner in a foreign country to comply with the
foreign law by obtaining from a registrar a certificate that no legal
impediment to the marriage has been shown. Similar certificates, by
arrangement between His Majesty and foreign countries, are issued in
the case of a foreigner desirous of marrying a British subject in the
United Kingdom.
The Foreign Marriage Act 1892 has consolidated the English law
relating to marriages celebrated abroad, and brings it into harmony
with the current tendencies of marriage law reform generally. Under it
a marriage between British subjects abroad is as valid as a marriage
duly solemnized in England (as heretofore), if celebrated in
accordance with the local law or in the presence of diplomatic or
consular agents who are appointed to act as "marriage officers." The
old fiction of assimilation of a British embassy to British soil can
no longer be relied upon to uphold a marriage at a British embassy
solemnized by an ordained clergyman. An order in council of the 28th
of October 1892, moreover, provides that in the case of any marriage
under the act, if it appears to the marriage officer that the woman
about to be married is a British subject, and that the man is an
alien, he must be satisfied that the marriage will be recognized by
the law of the foreign country to which the alien belongs.
A marriage may be solemnized on board one of His Majesty's ships at a
foreign station, provided a warrant of a secretary of state has
authorized the commanding officer to be a marriage officer. At sea,
marriages on British public or private ships seem still valid at
common law, if performed by an episcopally ordained minister. The
Merchant Shipping Act 1894 (sect. 240) provides that the master of a
ship for which an official log is required shall enter in it every
marriage taking place on board, with the names and ages of the
parties.
Again, under the Foreign Marriage Act all marriages solemnized within
the British lines by a chaplain or officer or other person officiating
under the orders of the commanding officer of a British army serving
abroad, are as valid in law as if they had been solemnized within the
United Kingdom subject to due observance of all forms required by law.
The Naval Marriages Act 1908 authorizes, for the purpose of marriages
in the United Kingdom, the publication of banns and the issue of
certificates on board His Majesty's ships in certain cases, or when
one of the parties to a marriage intended to be solemnized in the
United Kingdom is an officer, seaman or marine, borne on the books of
one of His Majesty's ships at sea.
The principle of the English law of marriage, that a marriage
contracted abroad is valid if it has been solemnized according to the
_lex loci_, may be now taken to apply just as much to a marriage in a
heathen as in a Christian country. Whether the marriage has or has not
been celebrated according to Christian laws has no bearing upon the
question, providing it is a monogamous marriage--a marriage which
prevents the man who enters into it from marrying any other woman
while his wife continues alive.
_Scotland._--The chief point of distinction, as compared with English
law, is the recognition of irregular marriages. (1) "A public or regular
marriage," says Fraser, "is one celebrated, after due proclamation of
banns, by a minister of religion; and it may be celebrated either in a
church or in a private house, and on any day of the week at any hour of
the day." The ministers of the National Church at first alone could
perform the ceremony; but the privilege was extended to Episcopalians by
10 Anne c. 7 (1711), and to other ministers by 4 and 5 Will. IV. c. 28
(1834). (2) A marriage may also "be constituted by declarations made by
the man and the woman that they _presently_ do take each other for
husband and wife." These declarations "may be emitted on any day at any
time and without the presence of witnesses," and either by writing or
orally or by signs, and in any form which is clearly expressive of
intention. Such a marriage is as effectual to all intents and purposes
as a public marriage. The children of it would be legitimate; and the
parties to it would have all the rights in the property of each other,
given by the law of Scotland to husband and wife. (3) A promise followed
by _copula_ does not constitute marriage, unless followed either by
solemnization _in facie ecclesiae_ or declarator. Lord Moncreiff's
opinion in the case of _Brown_ v. _Burns_ is admitted to be good law,
viz. that declarator is essential to the constitution of a marriage of
this kind, so that, if no such declarator be brought in the lifetime of
both parties, the marriage can never be established afterwards. The
_copula_ is presumed to have reference to the promise, but evidence may
be adduced to show that such was not the case.
By the Marriage (Scotland) Act 1856 it is enacted that no _irregular_
marriage shall be valid in Scotland, unless one of the parties has
lived in Scotland for the twenty-one days next preceding the marriage,
or has his or her usual residence there at the time.
"Habit and repute" has sometimes been spoken of as constituting
marriage in the law of Scotland, but it is more correctly described as
evidence from which marriage may be inferred. The repute must be the
general, constant, and unvarying belief of friends and neighbours, not
merely the controverted opinion of a section of them. The cohabitation
must be in Scotland, but in one case proof of cohabitation in another
country was allowed, as tending to throw light on the nature of the
cohabitation in Scotland.
The consent of parents is not necessary to the validity of the
marriage, even of minors, but marriage under the age of puberty with
or without such consent is void.
_United States._--The absence of ecclesiastical courts has suggested
difficulties as to the extent to which the law of England on this
subject continued to prevail after the revolution. Bishop holds it to be
the universal fact running through all the cases that everywhere in the
country the English decisions on marriage and divorce are referred to
with the same apparent deference which is shown on other subjects to the
decisions of the English common law and equity tribunals. The same
author observes that "all our marriage and divorce laws, and of course
all our statutes on the subject, in so far as they pertain to localities
embraced within the limits of particular states, are state laws and
state statutes, the national power with us not having legislative or
judicial cognisance of the matter within those localities." Some of the
states have extended the ages below which marriage cannot take place.
The common law of the states is assumed to be that "a contract _per
verba de presenti, or per verba de futuro cum copula_, constitutes a
complete marriage." Conditions, however, may be imposed by the various
state legislatures, and as to these the rule has established itself in
American jurisprudence that "a marriage good at common law is good
notwithstanding the existence of any statute on the subject, unless the
statute contains express words of nullity." Thus in Pennsylvania, where
a statute provided that all marriages "should be solemnized before
twelve witnesses," marriages not so celebrated were nevertheless held to
be good. In New Hampshire justices and ministers of the gospel are
authorized to solemnize marriage, and all other persons are forbidden to
do so under penalties; yet a marriage by consent, as at common law,
without justice or minister, has been held valid. On the other hand,
under a very similar statute in Massachusetts, it was held that "parties
could not solemnize their own marriage," and that a marriage by mutual
agreement, not in accordance with the statute, was void. Bishop regards
this as an isolated exception to the general course of the decisions. So
when state legislation requires any particular form to be used the want
thereof only invalidates the act if the statute expressly so enacts.
Many of the state codes inflict penalties on ministers or justices for
celebrating the marriage of minors without the consent of the parents or
guardians. The original law as to prohibited degrees has been
considerably modified in the states. The prohibition of marriage with a
deceased wife's sister has been abolished in the United States. But New
Hampshire, Ohio, Indiana, Kansas, Arkansas, Nevada, Washington, the
Dakotas and Montana have for long forbidden marriages between first
cousins by blood, and Louisiana, Oregon, Pennsylvania, Michigan,
Nebraska, Utah and Wisconsin have since adopted the same principle.
Virginia prohibits the marriage of a woman with the husband of her
brother's or sister's daughter.
Attention is also being paid to the question of marriage from a
physical point of view. New Jersey prohibits the marriage of any
person who has been confined in any public asylum as an epileptic,
insane or feeble-minded patient, without a medical certificate from
two physicians of complete recovery, and that there is no probability
of the transmission of such defects. This prohibits the granting of a
marriage licence where either party is an habitual drunkard,
epileptic, imbecile or insane, or where the applicant at the time of
making application is under the influence of any intoxicant or
narcotic drug. In Michigan, Minnesota, Kansas and Oregon, marriage is
prohibited to epileptics, &c., except when the woman is over
forty-five. In Michigan, also, marriage is forbidden to anyone who has
suffered from a venereal disease and has not been cured. The equality
of property rights between husband and wife is fully established in
America. Indeed, in many states the movement has gone so far as to
give the wife in matters of property and in reference to divorce
greater privileges than the husband. Thus a husband is often liable
for a wife's debts where a wife would not be, _mutatis mutandis_, for
a husband's; and a wife may usually obtain a decree of divorce for any
ground on which one may be awarded to the husband, and, in addition,
for neglect to provide sustenance or support. Emphasis on the personal
or moral relation of the parties in marriage tends to throw into the
background the legal aspects and requirements; and it tends also to
minimize, so far as the state is concerned, the religious and
sacramental aspect of marriage. Marriage tends to become a relation
established by parties between themselves, and one in which the
consent of the parties becomes the only constitutive element. In the
theory of American law no ceremony is essential to create the marriage
relation. But this position has never been endorsed by any
considerable proportion of the community, and in fact probably
(9/10)ths and perhaps (99/100)ths of the marriages in the United
States are contracted through some ceremony.
_France._--Articles 144-226 of the Code Napoléon, as amended by an act
of 1907, prescribe the qualifications and conditions of marriage. The
man must be eighteen and the woman fifteen years of age. A son and
daughter under twenty-one cannot marry without consent of the father and
mother, or of the father only if they disagree, or of the survivor if
one be dead. If both are dead grandfather and grandmother take their
place. Between the ages of twenty-one and thirty the parties must still
obtain the consent of their parents, but if this be refused it can be
regulated by means of a "respectful and formal act" before a notary. If
the consent is not given within thirty days the marriage may take place
without it. If neither parents nor grandparents be alive, parties under
twenty-one require the consent of the family council. These rules apply
to natural children when affiliated; those not affiliated require the
consent of a specially appointed guardian. Marriage is prohibited
between all ascendants and descendants in the direct line, and between
persons related by marriage in the same line, between brother and
sister, between uncle and niece, and brother-in-law and sister-in-law.
Before the solemnization of marriage banns are required to be
published for a period of ten days, which must include two Sundays,
containing the names, occupations, and domiciles of the parties and
their parents. There must be an interval of three days before the
marriage can take place, and if a year is allowed to elapse fresh
banns must be put up. On the day appointed by the parties, and in the
parish to which one of them belongs, the marriage is celebrated by the
civil officer or registrar reading over to them the various necessary
documents, with the chapter of the code relating to husband and wife,
receiving from each a declaration that they take each other for
husband and wife, and drawing up the act of marriage. All this has to
be done in the presence of four witnesses.
Marriages contracted abroad between French subjects or between French
subjects and foreigners are valid in France if celebrated according to
the forms of the foreign law, provided the French conditions as to
consent of parents have been observed. (See also Marriage with
Foreigners Act, _supra_.)
_Germany._--The code of 1900 lays down rules applicable to the
celebration of all marriages within the German Empire. Civil marriage
alone is recognized by the code. It is effected by the declaration of
the parties before a registrar in the presence of each other of their
intention to be married. Two witnesses of full age must be present. The
registrar asks each of the parties whether he or she will many the
other, and on their answer in the affirmative declares them duly married
and enters the marriage in the register. The marriage must be preceded
by a public notice. Marriages are void between descendants and
ascendants; relatives by marriage in the ascending or descending line;
brother and sister of the whole or half blood.
_Other Countries._--In the great majority of the other European
countries civil marriage is obligatory. In Roman Catholic countries the
parties usually supplement the obligatory civil marriage by a religious
ceremony, more especially since the papal decree _Ne temere_ of the 2nd
of August 1907 (which came into force at Easter 1908), which requires
marriages between Roman Catholics, or between Roman Catholics and those
not professing that faith, to be celebrated before a bishop or priest
duly authorized for the celebration thereof.
AUTHORITIES.--Eversley, _The Law of Domestic Relations_ (3rd ed.,
London, 1906); Lush, _The Law of Husband and Wife_ (London, 1909);
Crawley, The Law of Husband and Wife (London, 1892); Geary, _Marriage
and Family Relations_ (London, 1892); Griffiths, _Married Women's
Property Acts_ (London, 1891); Vaizley, _Law of Settlements of
Property made on Marriage_ (London, 1887); Bishop, (America)
_Marriage, Divorce and Separation_ (Chicago, 1892); David Murray,
(Scotland) _The Law relating to the Property of Married Persons_
(Glasgow, 1892); E. A. Westermarck, _History of Human Marriage_ (3rd
ed., 1901), with other works cited in the article FAMILY. M. Neustadt,
_Kritische Studien zum Familienrecht des bürgerlichen Gesetzbuchs_
(Berlin, 1907); O. D. Watkins, _Holy Matrimony_ (London, 1895), a
comprehensive study of the history and theory of Christian marriage,
from the High Anglican point of view, with special reference to
missions dealing with heathen converts; J. Wickham Legg, "Notes on the
Marriage Service in the Book of Common Prayer of 1549," in
_Ecclesiological Essays_ (London, 1905), a valuable comparative study
of Christian marriage rites, with numerous references; the articles
"Ehe, Christliche," by Gottschick, and "Eherecht" (many references),
by Sehling, in Herzog-Hauck, _Realencyklopädie_ (3rd ed., Leipzig,
1898, vol. v.); Abbé André, _Cours de droit canon_ (3rd ed., Wagner,
Paris, 1901), art. "Mariage," "Affinité," &c.
See also AGE; DIVORCE; FAMILY; HUSBAND AND WIFE; LEGITIMACY AND
LEGITIMATION; MORGANATIC MARRIAGE.