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jurisdiction, or otherwise transgressed the law of the land; but otherwise had to recognize their judgments as conclusive upon such questions as unques accoupli in loied mat. marriage or no marriage, etc.

As a rule, the church courts throughout the middle ages held that there could be no lawful marriage without the sanction of the church, and that wherever that sanction was regularly given, the marriage was indissoluble and even incontestable in the lay tribunals. As to the recognition of marriage by a simple contract or consent in the early days of christianity, see notes 29 and 30. Hence the common-law courts recognized many marriages as binding that would not now be considered so, because there had been an actual ceremony, and no question of it in the spiritual courts. It is even said that if a man espouse his mother, they are baron and feme until it is defeated (4 Viner [340], 35; citing, Y.B. 9 Hen. VI. 34); or his sister. (4 Viner [340], 35; citing Y. B. 39 Edw. III. 31 b.) So if a priest take wife, or a nun take husband, impediments that then rated among the highest (Viner, ubi supra); but in Comyn will be found rulings the other way. (B. & F. B. 6.) If an idiot a nativitate take wife, they are baron and feme, and their issue legitimate. (Viner, citing MS. case of Still v. West, 3 Jac. .) About the only point on which the common-law courts assumed to treat a marriage as null, without reference to the court christian, was the case of a prior undissolved marriage. (Viner, B. & F. A. 2; Comyn B. & F. B. 6.)

As the common-law courts in England had no jurisdiction of marriage or divorce, it becomes a question whether those of America can act on the precedents of the ecclesiastical courts in such matters, as common-law authority. The leading case in the negative is Burtis v. Burtis, 1 Hopk. Ch. 557; 14 Am. Dec. 563, where Sanford, Ch., held that the ecclesiastical law of England was no part of the common law, and never adopted as

such in New York, and consequently that the only causes of divorce in New York were those given by statute; and he refused a divorce for impotence because not given by statute. (See also Hamaker v. Hamaker, 18 Ill. 137; 65 Am. Dec. 705.) Contra, Crump v. Morgan, 3 Ired. Eq. 91; 40 Am. Dec. 447, holds that the civil and canon laws as administered in the ecclesiastical courts are part of the common law (citing,1 Bl. Com.79; Hale Hist. Com. Law, 27, 32), and adopted by us with it, in testamentary and matrimonial causes. (Redmond v. Collins, 4 Dev. 330; 27 Am. Dec. 208; Wightman v. Wightman, 4 Johns. Ch. 343.) A third view is possible; that even though the English precedents are common law, yet they are set aside by the statutes of a state "which have virtually repealed the whole body of the ecclesiastical and common law on the subject," as was said by that great judge, Lumpkin, C. J., in Brown v. Westbrook, 27 Ga. 102, 106, quoted by Bishop in 1 Marriage and Divorce, 137.

(29) Consensus, non concubitus facit nuptias, page 434. This maxim has so often been quoted as proving the binding force of a mere marriage by consent, without form, that it is worth while to inquire into its origin and true meaning. (For such quotations, see 2 Kent Com. 86; Bishop on Marriage and Divorce.) Schouler on Domestic Relations, section 25, criticises by implication former writers for assuming that the consensus means mere volition: he would interpret it by "a simple expression of mutual consent and no more." But does this improve the matter?

The maxim is usually quoted from L. 30 Dig. de Regulis Juris, where it stands as above, credited to Ulpianus, lib. 36, ad Sabinum. But it is found in another place (L. 15 Dig. de cond. et dem. 15, 1, credited to lib. 35, of same work, no doubt a mere error in the one number or the other) and here we have the

context from which we learn what Ulpian really meant by it." When a legacy has been left under this condition, if married in the family, the condition seems performed as soon as the wife is led home, although she may not have yet come into her husband's bedchamber, for not concubitus, but consensus makes the marriage."

"Led home" (ducta) might be translated by "as soon as the ceremony is performed," for it evidently refers to the solemn procession from the bride's home to that of the husband, which was the most public part of the rite. Ulpian's meaning evidently is that the ceremony, evidencing the consent of parties, is a complete marriage, even before it is consummated by intercourse. The passage with its context shows this; still more when read in connection with the numerous other passages defining the same word; nuptias contrahunt justas qui secundum præcepta legum coeunt (Inst. tit. de Nuptiis pr.) and those which require the consent of all qui coeunt, quorumque in potestate sunt. (L. 2 D. de ritu nupt. and others collected by Pothier, Pandectæ, lib. 1, tit. 17, cap. 4, ? 1, art. 2, par. 379, etc.) The same doctrine is now held to be the law in Scotland, where the Roman law has preserved a more direct influence than in England or the United States. So stated by Lord Campbell in Hamilton v. Hamilton, 9 Clark & F. 326.

The conception of marriage as a contract is purely modern, unknown to either Germanic or Roman ancient law. Its popularity probably dates only from Donellus, Com. lib. 13, c. 18; Gliick, lib. 23, tit. 2, p. 122. The Romans never applied the term contractus to this or any other institute of the jus personarum. Donellus acknowledges this, but makes a formal argument from the phrase nuptias contrahi (Inst. de Nuptiis), and the text calling marriage societas, that marriage is a kind of partnership, and like all partnership belongs to the

consensual contracts. The French contrat de mariage is a marriage settlement, not the marriage itself. (Glück, p. 123.) Even the coemptio was not a contract between the married parties. (Gaius, i. 113.) The derivation of our wedlock from wed might seem to identify it with contract; but wed was not a contract proper; it was only the conception out of which the German form of contract subsequently grew.

In England it is now settled doctrine that a celebration was always an essential requisite of valid marriage, even before the statutory requirement of 26 Geo. II. c. 33. (Reg. v. Millis, 10 Clark & F. 534, where the subject is discussed very fully.) But the historical fact is clearly otherwise, and we know that for centuries in England the same rule prevailed as in other Catholic countries, which made the marriage binding without religious celebration until the council of Trent. (Dalrymple v. Dalrymple, 2 Hagg. Ecc. 54; Hallett v. Collins, 10 How. 174.) And it is said that the courts in Canada differ from the House of Lords on this point. (Breakey v. Breakey, 2 Up. Can. Q. B. 349.)

"Marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil polity." (Per Stewart, J., in Noel v. Ewing, 9 Ind. 37.) It is a status, a domestic relation resulting from a consummated contract to marry. (Ditson v. Ditson, 4 R. I. 87; People v. Darnell, 25 Mich. 247.) Therefore, “to give jurisdiction in a divorce suit, the plaintiff must be a resident of the state where the divorce is obtained This fact gives jurisdiction of [his] person, and renders the divorce (notice having been given to the defendant by publication or otherwise) valid as to the plaintiff; and being valid as to one, public policy demands that it should be valid as to both parties." (Per Perkins, C. J., in State v. Hood, S. C. Indiana; 9 Ch. L. N. 376, citing, Falen v. Falen, 2 Blackf. 407; Jenners v. Jen1 BLACKST.-64.

ners, 24 Ind. 355; Ewing v. Ewing, 24 Ind. 468; Ditson v. Ditson, 4 R. I. 87. See, also, note 33, p. 760.)

(30) The first of these legal disabilities is a prior marriage, or having another husband or wife living, page 436. Continuous absence of one spouse unheard from for seven years (or such term as may be fixed by state law) exempts the other from the penalty of bigamy, but does not make the second marriage lawful. (Glass v. Glass, 114 Mass. 563.) Quære as to effect of 1 Jac. I. c. 11, 1604, which may be common law in this country. In some states the marriage is made valid. (Rev. Stats. Ky. 380; Strode v. Strode, 3 Bush, 227.) In others the marriage is null only from the time of a decree annulling it. (Cropsey v. McKinney, 30 Barb. 47.) And generally when the former spouse disappears and is never heard of again, the presumption in favor of the second marriage will sustain it, even though less than the statutory period has elapsed between the marriages (Kelly v. Drew, 12 Allen, 107; Yates v. Houston, 3 Tex. 433); and though the party involved may have been the one to blame in the separation. (White v. Lowe, 1 Redf. 376.) Very commonly the children of such a marriage are legitimate by statute, though the marriage itself is invalid. (See note 38, post, page 793.)

(31) He may disagree as well as she may, for in contracts the obligation must be mutual, page 436.

The reason given is hardly a good one, as Professor Christian has pointed out. An infant's right to disown his contract at majority does not prevent it from binding the other party if of full age. The true reason, doubtless, why both had the option to disagree in the case of marriage, was that neither party could judge of the infant's fitness or attractiveness as a spouse until the marriageable age was reached. In an age when the espousals were often made in early childhood, it was but

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