^.T- sTVJ i>»^^b- v^f"' 5^.^, IMAGE EVALUATION TEST TARGET (MT-3) / // 7 :/ O &?/ 5r ^ ^/. 1.0 l.i 1.25 '- IIIM |||||2J^ li; 1^ 1.4 M I™ 1.6 P> naged/ Pages endommagdes □ Covers restored >>nd/or laminated/ Couverture restaurde et/ou pelliculde D Cover title missing/ Le titre de couverture manque □ Pages restored and/or laminated/ Pages restaurdes et/ou pellicul6es □ Pages discoloured, stained or foxed/ Pages d^colordes, tachetdes ou piqu^es Coloured maps/ Cartes gdographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.s. autre que bleue ou noire) r~~| Pages detached/ D Pages ddtachdes Showthrough/ Transparence D D D D Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Relid avec d'autres documents Tight binding may cause shadows or distortion along intorir' margin/ La reliure seir^e peut causer de I'ombre ou de la distortion le long de la marge int^rieure Blank leaves edded during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajoutdes lors dune restauration apparaissent dans le texte, mais, lorsque cela ^tait possible, ces pages n'ont pas 6t6 film^es. □ Quality of print varies/ Qualitd indgale de {'impression □ Includes supplementary material/ Comprend du materiel supplementaire □ Only edition available/ Seule 6dition disponible D Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, una pelure, etc., ont dt6 film6es d nouveau de faqon d obtenir la meilleure image possible. □ Additional comments:/ Commentaires suppl6mentaires: HThis item is filmed at the reduction ratio checked below/ Ce document est fi|m6 au taux de reduction indlqu6 ci-dessous. 10X 14X 18X 22X 26X 30X 12X 16X v4 20X 24X 28X 3 32X The copy filmed here has been reproduced thanks to the generosity of: National Library of Canada L'exemplaire fllmd fut reproduit grdce d la gdn6rosit6 de: Bibliothdque nationale du Canada The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Les images suivantes ont 6t6 reproduites avec le plus grand soin, compte tenu de la condition et de la nettetd de I'exemplaire filmd, et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol — ^ (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les exemplaires originaux dont la couverture en papier est imprim^e sont film6s en commenpant par le premier plat et en terminant soit par la derni^re page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont film6s en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon le cas: le symbole —*^ signifie "A SUIVRE", le symbole V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent dtre film^s d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est filmd d partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 32X 1 ^BHH 7 MARRIAGE: BEING A THESIS FOR THE DEGREE OF DOCTOR OF LAWS. BY WILLIAM JOHNSTON, M.A.. LL.B. Victoria University, Cobour§, Ontario X ATHENS, JULY 28rH, 1891 TORONTO : WILLIAIVE BRIGGS, WESLEY BUILDINGS, C. W. COAXES, Montreal, Que. S. F. HUESTIS, Halifax, N.S. Minister of Argriculture, at Ottawa J«hn8™n, in the Office of the MARRIAGE. CHAPTER I. one thousand Office of the ITS MORAL ASPECTS. The beautiful and touching Bible narrative of the first mar- riage will ever cast a romantic halo around the shadowy history of primeval man. The moral teaching of the record it is impos- sible to misunderstand. This marriage, at least, was made in heaven. God Himself was the Great High Priest who officiated at the ceremony. Angels may have looked down upon the first happy man and wife. The glad earth smiled in youthful beauty upon her lord and master. Homage Adam exacted, and hom- age he received from the woman God had given him. Protec- tion he guaranteed, and she gave, in return, loyalty to her husband. Common cares and griefs soon knit the hearts of Adam and Eve closer together than ever love could. " I will greatly multiply thy sorrow and conception," was the dread sentence of the Supreme Judge against sinning Eve ; and to Adam, " In the sweat of thy face shalt thou eat bread, till thou return unto the ground ; for dust thou art, and unto dust shalt thou return." The first family, the first family quarrel, the first reconciliation, the first great joy, the first great grief, follow each other in rapid succession ; and the history of the human race repeats, with fearful emphasis, the story recorded in its first chapter. The end of marriage is the production of offspring. All animals have implanted in them a desire to perpetuate their species ; this desire is one of nature's laws, and it is the strongest law in nature, for, without it animal life would soon cease to exist. Man is subject to the same physical laws as animals, and hence the desire in man to beget progeny does not differ in any respect from the animal passion. But the moral faculty of man is not found in any animal, and this power places the human race at an immeasurable distance above the most intel- ligent animal. Following the instincts of their nature, many animals display a wonderful forethought for the preservation of their young, and the most indefatigable exertion in providing 4 for them the means o£ subsistence while they are in a helpless condition. But as soon as the young are able to provide for themselves the solicitude of the parents ceases. In many cases the male parent contributes in no way towards the support of his offspring. Upon the female parent generally devolves the task of providing sustenance for her offspring until it can pro- vide for itself. In the mammalia this is especially the case. But even here the bond of attachment is broken as soon as dependence ends, and the parent soon ceases to care for the young that no longer needs assistance. The sentiments of duty and right have their origin in the moral faculty. Hence they are peculiar to man, and it is from them that nearly all that is characteristic of the family, society and the State may be traced. "Am I my brother's keeper ?" asked guilty Cain, in the presence of the Righteous Judge, and to that question the family, society and the State has ever given an affirmative answer. The human parent ought to provide for his child, because his moral nature is satisfied by doing so, and dissatisfied if he neglects to do that which his conscience tells him is right. It is right to strike down the man who thi'eatens the life of those 1 love, because my moral nature impels me to protect them. Why I love them, I do not know, and I do not seek to know. Why my moral nature produces such sentiments I do not know, and I do not wish to know. Why God made man at all I do not know, and I do not desire to know. But I do know that I have thoughts, aspirations, feelings and sentiments which prompt me to do certain acts, the only reason I can give is that it is my duty, or it is right. Among the most barbarous races of human beings, as well as among the most highly civilized, the family is recognized as the sine qua non of society. Many animals " pair " during the time for bringing forth their young, but the association ceases when its immediate object has been accomplished. There is no life-long a.ssoczation among animals, such as is found among men and women. There is no union of souls among animals, for there are no moral souls to unite. Neither is " false heart to false heart joined " among animals, for interest has no place in the action of the brute. The noblest and the basest unions are not found in animal marriafjes — using the term in its widest meaning — because the sole end of the animal is to obey the law requiring reproduction of the species. Man also obeys this law, but his intellectual part demands many enjoyments which are foreign to the animal nature. The pas.sion of love, peculiar to man, and, perhaps, totally wanting in animals, impels him to seek the life-long in a helpless ) provide for n many cases he support of devolves the lil it can pro- ally the case, m as soon as care for the origin in the nd it is from .mily, society f's keeper ? " 3 Judge, and as ever given '> to provide by doing so, s conscience le man who joral nature not know, re produces ih to know. not desire aspirations, :ertain acts, t is right, ngs, as well cognized as tir" during association complished. such as is 3n of souls }. Neither limals, for 'he noblest larriages — 5ole end of ion of the ctual part ;he animal J, perhaps, e life-long companionship of the object of his adoration. He loves to see his own image and the image of his c anpanion reflected in the countenance of his offspring. He sees himself perpetuated in the children who lean upon him for support, and the comely features of his once youthful wife are reflected in the faces of his sons and daughters. The children who now depend upon him for support and comfort will, in a few years, be the stay of his declining years and the solace of his old age. Such are the thoughts and feelings produced by the moral faculty. All races of men are subject to them, in a greater or lesser degree, and no animal possesses any trace of them. Marriage, undoubtedly, ha steals my good name I makes me i wrote the of human Was Cicero public say ideed, true iat riches ? n His only 1 agony on tken Me?" itude suffi- alice ? Or 1 in order lappiness ? ice, to his _ 1 of Pavia, icis I., and France he I in honor iff begged e of Tra- i, and you lame, and Upon this feeling of honor, or love of respect, rests, to a great extent, the moral value of marriage. The charms of woman are her greatest peril ; the passion of man his most deadly foe. The superior strength of man makes woman his easy victim. The credulity and trustfulness of woman are no match for the deceitfulness and selfishness of man. The certainty of punish- ment, if woman transgresses the moral law, stands out in fearful contrast against the impunity of equally guilty man. The woes of woman plead for mercy at the bar of God, and the Righteous Judge decrees that man shall cherish and protect the woman God has given him. Society demands from man observance of the divine law ; and when social law fails to give the required protection, state law comes to the assistance of weak and oppressed woman. To seduce the virtuous, to lay unholy hands upon the sanctity of home, to disrespect woman, have ever been held detestable crimes by the virtuous. Even among uncivilized nations this moral law exercises a most salutary and civilizing influence. As far back as history gives us any information we find traces of it ; and it is found with equal strength among the American Indians and the natives of Aus- tralia. Woe to the seducer or the adulterer was the safeguard of society in the days of Abraham, of David, and of "'false Sextus, who wrought the deed of shame." And woe to the seducer or the adulterer is still the curse which falls upon the ear of him who fails to respect the innocence and virtue of woman. The moral law, relating to the family, is now what it was ages ago. It is based upon the instincts of our nature, and, therefore, it never changes ; " For this cause shall a man leave his father and mother and cleave unto his wife, and they twain shall be one flesh." The moral nature is .satisfied only when "they twain are one fle.sh." A mysterious union of souls it may be ; but it also is the greatest of all moral agents, and the principal factor in the development of the mental and physical powers of man. It is sad to think that marriage is necessary as a means of compelling the male parent to provide sustenance for his offspring. The cares and responsibilities of the father are so burdensome that, in many cases, he would desert his child i* the law" did not compel him to provide for its support. Thus the animal nature of man may prevail over the spiritual. Bui by marriage the child is brought in contact with both parents from its birth, and soon the natural affection which exists between parent and child binds the father to the child with cords which are light as air, but strong as iron. And this is the moral value of marriage. 8 CHAPTER IL HISTORICALLY CONSIDERED. There can be no doubt that polygamy waa universal in the first stages of man's advancement from barbarism to civilization. And 1 s also certain that polygamy was practised to a much greater extent in the eastern than in the western hemisphere. As far as the Bible gives us any information regarding the early history of man, plurality of wives is stamped upon it, as a characteristic of the people whose acts are recorded on the sacred page. And, not only is this true of the nations of Wes- tern Asia, for the Hindoos and other nations of the south and east of Asia are still notorious polygamists. In Europe, with the single exception of TurKey, polygamy is now unlawful. The Germanic and Sarmatian races were in the earliest times notorious for their chivalrous nature, their love of freedom, their devotion to woman, their hatred of wrong and their sym- pathy for the weak and defenceless. This magnanimous nature developed into the knight and the cavalier, whose mission was to protect woman, respect home and foster literature The Germania of Tacitus was occupied by tribes who were so vir- tuous in their marital relations that they excited the admiration of the Roman historian. Monogamy was a distinctive charac- teristic of the wild men of the German forests who cut to pieces the legions of Varus. And it should ever be remembered that the English people are the lineal descendants of the early Ger- man monogamists. But monogamy was not confined to Ger- many among the ancients, for it was the practice in Egypt, long before history takes any notice of it on the banks of the Rhine. However, the Egyptian marriage law placed the wife on pro- bation for one year, at the end of which time the husband possessed the right to ratify or repudiate the marriage contract. This Egyptian marriage law is another illustration of the degradation of woman, peculiar to all eastern countries. It is worthy of notice that polygamy has always been confined, to a great extent, within the tropical and torrid regions. This fact is suggestive ; for it proves how difficult it is to elevate man morally, when the laws of nature tend to degrade him. If monogamy were the law of marriage in tropical countries, would the population rapidly decrease, and the race in a few genera- tions become extinct ? Woman, in a torrid climate, ceases to "«« 9 ersal in the ) civilization. 1 to a much hemisphere, fig the early pon it, as a ■ded on the ms of Wes- e south and urope, with v^ unlawful. :'Jie.st times )f freedom, their sym- Jous nature mission was ture The ere so vir- admiration ve charac- it to pieces bered that early Ger- d to Ger- gypt, long ;he Rhine, e on pro- husband contract, n of the ies. It is nfined, to This fact ate man him. If es, would ' genera- Jeases to bear children at a very early age, and her family is never so numerous as are the families in the temperate regions. This is a natural cause of a social system that can never cease to be degrading. Another cause of polygamy is the increase of man's sensual passion as his manual labor decreases. In the tropical and torrid regions, nature provides sustenance for man unso- licited and in abundance. A hot climate, also, adds fuel to man's lustful passion, which plunges him into excess, when not controlled by that enlightened reason which guides man only when he becomes acquainted with the true principles of his physical and spiritual nature. But, man can never ascend, intellectually or spiritually, while he is a polygamist. The noblest thoughts and feelings of the human heart can have no place in the breast of him who is the husband of more than one wife. Monogamy has ever characterized the hipher races of the human family. Polygamy has ever marked the laggards in the race of progress. The monogamists of Europe have given the world all that is great, good and noble. The polygamists of Asia stand now where they stood when King Solomon sauntered listlessly among his seven hundred wives and three hundred concubines. All the literature, science and art which has given jo}' and gladness to this sin-cursed world, has been produced by the man who is the husband of one wife. The noblest concep- tions of mother, home and heaven are found in the hearts of the people who abhor polygamy. The basest conception of heaven — a seraglio stretching out to infinity — rests in the breast of the Mohammedan.' As a man's life is, so will his thoughts be. Sensuality always degrades. The contemplation of the pure ami the good always elevates. Hence, whatever may be the physical arguments in favor of polygamy, no other conclusion can be arrived at than that it is one of the greatest obstacles in the way of civilization and intellectual advancement. The form of the marriage ceremony has varied with advanc- ing civilization and moral development. Among barbarous races it consisted merely in the forcible capture of the woman by the man. Possession of the woman by the man gave him a legal right to enjoy the woman, just as in the law of real property, peaceable enjoyment for a certain time gives the possessor an indefeasible right to the property. In the second stage of the marriage ceremony, the capture of the woman was the symbolical marriage following the sale or gift of the woman to the man by her parents or relatives. This form of marriage marks the semi-civilized period of the world's history, and it has always been characteristic of the nomadic tribes who have 10 roamed for ages over the npland plains of Asia, The sale of the daughter by her father to the lover, recalls the story of Jacob, Leah and Rachel, which still casts its seductive influence around the primitive history of God's chosen people. But strip the narrative of its deceitful lustre, and view it in the light of Christian intelligence, and the banefulness of the system is at once apparent. Woman is a chattel. She is scld like the ox or the ass. Her freedom of will is but a mockery. She becomes, in truth, a beast of burden, and her husband is her lord and master. And, how fearfully has nature punished those who have thus violated her laws ! The European is now master of the Asiatic. The third stage in the development of the marriage cere- mony marks the state of complete civilization. Woman's individuality and freewill are here fully recognized. Mutual conveyance or dedication of the one to the other is now the marriage contract. This mutual conveyance is very generally associated with religious ceremony, and in modern times is, as a rule, valid only when performed in a manner prescribed by, and in the presence of, officials recognized by the State. The consent of parents or guardians is often also necessary. Marriage then becomes a civil contract, but it is a contract sui generis, for it is not revocable at the will of the contract- ing parties, which is, with few exceptions, the case in all other contracts. The religious part of the ceremony is merely added to give additional solemnity. But, far beneath polygamy, there exisf^d, among many bar- barous tribes, a marriage system so utterly degrading that it can never be contemplated without aversion and disgust. This repulsive social system consisted in a community of wives : that is to say, a household consisted of twelve or more men and as many women, who were the common wives of all the men. Surely this social condition of man marks the lowest depth of degradation to which he can sink ! If the " missing link " ever had anything but a theoretical existence, it might be found among those primitive communists. Among the tribes who, at one time, consorted in this promiscuous manner must be classed the ancient Britons. But the practice dees not seem to have been confined to the west of Europe, for more than three hundred years before the birth of Christ, Plato, in his " Republic," seriously advocated such a political system, as the basis of a government, that 'vould be most con- ducive to the welfare of the State. The cultured Grecian never knew that " the principal part of human happiness con- sists in a sense of being beloved." If he had known that 11 The sale of the story of tive influence people. But lew it in the of the system sf.ld like the ockery. She isband is her ire punished opean is now larriage cere- Woman's ied. Mutual r is now the jry generally 1 times is, as rescribed by, State. The ) necessary i a contract he contract- in all other aerely added y many bar- reling that it sgust. This Y of wives : ir more men es of all the 3 the lowest le " tnissing ice, it might Among the ous manner ractice dees Europe, for of Christ, li a political e most con- ed Grecian )pine.ss con- nown that j I great ethical truth, he would not have advocated a civil polity that would banish the Home and the Family from this earth, and sink man to the level of the brute. How love and hatred, beauty and deformity, humanity and cruelty are mixed by this best of all heathen philosophers ! " Love your friends and hate your enemies," wrote Plato, in the noblest age of Grecian civilization. And, long years afterwards, our Saviour contra- dicted that statement, when He said : " Love your enemies, do good to them that hate you, and pray for them that despite- fully use you and persi;cute you." This is a nobler morality than Plato ever knew; ind that exalted love of humanity bore fruit in the purification of society, by eliminating from it all that was gross and sensual in marital relations. Christianity has ever been the champion of monogamous marriages. The apostles were commanded to be husbands of one wife ; and this command soon became the law of the Church of Christ. The God-Man who wept at the grave of Lazarus, and said to the woman taken in adultery, " Go in peace, and .sin no more," raised Woman from social degradation to an honored position as the companion of man. Society in our time consists of an aggregate of individuals ; in ancient times it was made up of a number oi families. That is, the unit of the ancient state was a family ; the unit of the modern is an individual. Taking the Bible narrative as our guide, we may conclude that a community began to exist wher- ever a family remained together instead of separating at the death of the patriarchal chieftain. In many of the Greek states, and ai.so among the Roman.s, there long remained the vestiges of an ascending series of jiroups, out of which the State was subsequently constituted. Those groups were known among the Romans as the Family, the Gens, or House, and the Tribe. The elementary group was the Family ; an aggregate of fami- lies made the Gens ; and a group of Gens constituted the Tribe ; while the aggregation of Tribes gave birth to a Commonwealth. The ancient constitution of the State has an important bearing upon the history of marriage. This is particularly the case with respect to the constitution of Rome, because the greater part of the marriage laws of Europe and America is based upon the civil law, that is the Roman law. Thus the patriarchal power of the father of the family, which was a characteristic of the Asiatics, and also existed in the rude jurisprudence of the tribes on the banks of the Danube and the Rhine, developed into the Roman Patria Potestas, or Power of the Father. This family rule gave the father the absolute control (in civil matters) of all his lineal descendants, and also of those who > 12 married into the family or were admitted by agnation, that is, adoption. We can scarcely conceive that this extraordinary and inordinate power of the father could exist ^or any great length of time in a civilized community. Its tyranny over the person and property was such that the State must early have revolted against it. When history first gives us any informa- tion regarding the " power of the father," "the parent has over his children the power of life and death, of uncontrolled cor- poral chastisement ; he can modify the personal condition at pleasure ; he can give a wife to his son ; he can give his daugh- ter in marriage ; he can divorce his children of either sex ; he can transfer them to another family by adoption ; and he can sell them." This rule evidently belongs to the time of patri- archal government. It is not definitely known at what time the power of the father began to decline ; nor has the history of that decline ever been fully traced. 15ut it is certain that about the beginninj; of the Christian era the Patria Potestas was becoming exceedingly unpopular, and the establishment of the Empire completed its destruction. It is worthy of notice that, while ancient law made woman subordinate to her blood relations, modern jurisprudence has subordinated her to her husband. The history of the change begins far back in the annals of Rome. The ancient law of Rome recognized three distinctive modes of contracting mar- riage. The first was a religious marriage, known as Confarrea- tion ; the second and third modes were both civil marriages ; but one styled Coemption was considered of higher rank than the other, which was denominated Usus. By each of those mar- riages the husband acquired a number of rights over the property and person of his wife, which, on the whole, exceed the privileges conferred by any modern system of jurisprudence upon the husband, as against his wife. But the husband acquired those rights, not in virtue of his capacity as a husband, but as the fathtv of his wife. Thus were there fictions in Roman law long before they had an existence in the laws of England. By the Ccnfarreation, Coemption and Usus the woman became, in law, the daughter of her husband. The wife became part of the Patria Potestas of her husband, the husband became the absolute owner of his wife's property. All the liabilities springing out of the Patria Potestas were incurred by the wife, not only during the life of her husband, but even after his death, should she .survive him. There was also a fourth form of marriage, which may be described as a modifica- tion of the Usics marriage. This marriage amounted, in law, to little more than a temporary deposit of the woman by her nation, that is, extraordinary ^or any great mny over the ist early have any int'orina- irent has over lontrolled cor- condition at ve his daugh- ither sex ; he and he can ime of patri- ot what time ? the history certain that tria Potestas blishment of nade woman )riidence has ■ the change cient law of racting mar- 3 Gonfarrea- l marriages ; r rank than •f those mar- ts over the diole, exceed Jrisprudence lie husband i a husband, > fictions in the laws of 1 Usus the i. The wife ;he husband y. All the re incurred d, but even was also a a raodifica- ■ed, in law, nan by her { 13 family. Hence, it was long considered disreputable ; but about the time that Eastern luxury began to sap the moral strength of Rome, this loose form of marriage succeeded in supplanting the ancient and nobler marriage ceremonies. Thus, again, national greatness produced moral weakness. It had sunk Babylonia, Persia and Greece in hopeless ruin, and now it was sowing the seed of destruction among the people of Rome. Under this new marriage law " the rights of the wife's family remained unimpaired, and the lady continued in the tutelage of guardians whom her parents had appointed and whose con- trol ov^errode, in many material respects, the inferior authority of her husband." The evil effects of such a marriage relation requires no explanation ; and the result was that in a few gen- erations the marital relation, at Rome, was the loosest the Western World has seen. In this deplorable condition was mar- riage at the time Christianity became the State religion of the Roman Empire, and hence the asceticism of the Fathers of the Church, which finally gave birth to the monk and the nun. And here, also, it may be noticed that the matrimonial law which, until very lately, bore so heavily upon the freedom of woman is threefold in its origin, consisting of three strata placed upon each other in chronological order. The lowest is the patriarchal law, which was, as we have seen, especially degrading to woman. The second stratum is the civil law ; and, resting upon it, is the barbarian code of the conquerors of Rome. During the period of unification of the Roman and barbarian peoples, the dominant races are seen everywhere under various form of guardianship, and the husband who takes a wife from any family, except his own, pays a certain sum to her relations, in consideration of a waiver of the right of tutelage which still rested in the wife's family. Finally, when the amalgamation of the two contending races became complete, it is found that unmarried fomales are relieved from the bondage of the tutor or guardian; but the wife is subordi- nated to her husband. The husband, in his marital character has transferred to him the rights which formerly resided in his wife's guardian. The wife is still in subordination, but her master is now her natural protector. Hence the comparative freedom allowed to unmarried women and widows, which is a characteristic of the marriage law of the south and west of Europe, and of the heavy disabilities imposed upon wives. It is also worthy of notice that the law relating to unnmrried women and widows is Roman in its origin, while the law fixing the status of the wife i.*^, barbarian as to its source, as well as its principle. It was long before the subordination, 14 entailed upon the female sex by marriRge was sensibly diminished. The " Institutes of Justinian " did much to relieve the wife from the marital disabilities under which she had so long labored. But the marriage law still continued to be read in the light of canon law, i.e., the law of the Church, rather than in that of Kome, which was the secular law of the Empire. And this continued subordination is mainly to be attributed to the influence of the Christian Church, which, by a strict adherence to the Hebrew marriage law as found in the Old Testament, diverged widely from the spirit of the more mag- nanimous law of Rome. Indeed, there are still many vestiges of the struggle between the secular and ecclesiastical principles, but the canon law nearly everywhere prevailed. In some of the French j)rovinces the local law is, to a great extent, Roman ; while in Denmark and Sweden, the marriage law is, almost exclusively, the canon law. And yet more stringent in the proprietary incapacity it imposes is the common law of Eng- land, except in so far as it has been ameliorated by the equity courts and statute law. (Based upon " Maine " and " The Institutes.") CHAPTER III. THE LEGAL ASPECTS OF MARRIAGE, I SHALL now proceed to consider the legal rights and responsi- bilities of the parties effected by marriage, in the examination of which I shall first inquire how marriages may be contracted ; in the second place, I shall point out how they may be dissolved ; and, lastly, I shall present the legal effects and consequences of marriage, and of its dissolution. And, here, it should be observed that, until quite lately, only the ecclesiastical courts had jurisdiction in matrimonial causes, and possessed the power of annulling incestuous and other unscriptural marriages : but as such courts only acted for the spiritual good of the accused, their power ceased at the death of the parties implicated. This authority exercised by the clergy while Roman Catholi- cism was the State religion, remained in the spiritual courts till A.D. 1857, when it was taken from them by the Statute 20 and 21 Victoria, c. 8,5, which established the " Court for Divorce and Matrimonial Causes." 15 B was sensibly much to relieve vhich she had so nued to be read ; Church, rather w of the Empire, be attributed to ich, by a strict )und in the Old f the more mag- 11 many vestij^es Lstical principles, led. In some of t extent, Roman ; e law is, almost strinf^ent in the ion law of Eng- iliorated by the lame " and " The QE, hts and responsi- the examination ly be contracted ; nay be dissolved ; I consequences of re, it should be 3lesiastical courts jsessed the power 1 marriages : but d of the accused, ,rties implicated. Roman Catholi- spiritual courts >y the Statute 20 !)ourt for Divorce Even before the dissolution of the spiritual courts, the law of England regarded marriage simply as a contract, and took no notice of its rehgious accessories. Hence, the law allowed marriage to be good and valid in all cases, if the parties to the contract were (1) willing to contract, (2) able to contract, and (3) did contract ; thus applying to the marriage contract the rules which govern the validity of any other contract. First, the parties must be willing to contract, for, "Consensus non con- cubitus, facit nuptias" is the maxim of the Roman law. One- ness of mind, not sexual intercourse, constitutes marriage, is the English legal maxim borrowed from the Roman jurispru- dence. Indeed, almost all our notions of the legitimacy of marriage are derived from the canon and civil laws. Secondly, the parties must be able to contract. In general all persons possess legal capacity to contract themselves in marriage, unless they labor under some particular disabilities or incapacities, the nature of which will now be considered. Contractual disabilities were of two kinds ; first, canonical, and secondly, civil. The canonical disabilities were sufficient to avoid the marriage in a spiritual court ; but they only made the marriage voidable, and not void ab initio. Hence, the marriage M^as valid until the decree of nullity was pronounced by the .spiritual court ; and if a sentence of separation was not obtained, during the lifetime of the parties to the contract, it could not be rendered after their decease ; for, after the death of either of them, the courts of common law would not .suffer the spiritual courts to declare such marriages to have been void, because such declaration could not tend to the reformation of the parties. The.se can mical disabilities were, (1) pre-contract, (2) consanguinity, or relation by blood, and (3) affinity, or relation by marriage ; to which may be added some particular corporeal infirmities wViich render sexual inter- course impossible. The disability of pre-contract is now abolished, and the others are cognizable in the temporal courts, and generally make the marriage in#itself utterly void. Pre-contract con.stituted a disability until, by Statute 32 Henry VIII., c. 38, it was abolished, except the marriage had been consummated by bodily knowledge ; in which case the contract was held to constitute a n)arriage de facto. By the 13th section of 26 Gef)rge II., c. 23, the disability of pre- contract is abolished, whether there has been consummation or not. The existing disabilities to marriage owe their force to municipal law ; and, except in case of nonage or physical infirmities, they render the contract void ab initio; that is, they III ir : 1 16 do not dissolve the contract, but they prevent the formation of any legal contract. They do not separate, but they prevent legal union. Hence, if any persons laboring under these legal incapacities come together, it is not a matrimonial union, in the legal sense of the term, but merely unlawful cohabitation. The first legal disability is a prior marriage ; that is, having another husband or wife. This is not only a sin, but also a crime. It is punished as a felony, and the second marriage is, to all intents and purposes, void. I have previously shown, from a moral standpoint, that polygamy is contrary to natural law, and also, that it is at variance with the spirit of the New Testament ; and, therefore, it is only necessary to add, in this connection, the dictum of Justinian that, "JJiiaa uxorea eodf/m. tempore habere non licet," it is not lawful to have two wives at one time. All honor to the noble Rome who gave to the world this key-stone of Christian morality and political stability ! The second legal disability is, want of age. Since that is sufficient to render voidable other contracts, on the ground of immaturity of judgment in the infant who contracts ; a fortiori, it ought to avoid the marriage contract, which is the most important of all contracts. Therefore, if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is not binding, and either party may, on arriving at the age of maturity — fourteen and twelve years in English law — avoid the marriage without a divorce or sentence of a court. But, if at the age of consent the contracting parties agree to continue together, it is not necessary for them to be married again. If the husband be of contractual capacity, fourteen years, but his wife under twelve years, when the marriage was celebrated, the husband may repudiate the marriage when his wife arrives at the age of discretion, as well as the wife; for, in the marriage contract, as in others, the oljligation must l)e mutual ; and so it is, vice versa, when the wife is of years of discretion but the husband is not. This rule, however, does not extend to marriages in M'hich the husband is fourteen and the wife twelve years of age. The third incapicity is want of reason, without which neither can the marriage nor any other contract be valid. Formerly, it was held that the issue of an idiot was legitimate, and consequently that the marriage was valid. But t his view was antagonistic to the principle that there can be no legal con- tract without mutual consent. Hence, the civil law held, more sensibly, that deprivation of reason made a legal marriage impossible. And modern law has followed the determination of the civil law, in making it an inflexible rule that the the formation of )ut they prevent under these legal nial union, in the ful cohabitation. ; tliat is, having a sin, but aiso a jond marriage is, )reviously shown, itrary to natural pirit of the New ry to add, in this 1(18 uxores eodem ave two wives at [ave to the world )litieal stability ! Since that is n the ground of racts ; a fortiori, ] ich is the most r under fourteen, this marriage is ig at the age of flish law — avoid a court. But, if ^ree to continue irried again. If m years, but his IS celebrated, the ife arrives at the arriage contract, and so it is, vice but the husband to marriages in twelve years of without which tract be valid, was legitimate. But t his view be no legal con- . law held, more ;| legal marriage e determination rule that the 17 marriage of a lunatic — unless celebrated during a lucid interval — is absolutely void. But, as it would be difficult to prove the lunatic of sound mind at the time of the celebration of the nuptials, the Statute 15 George II., c. 30, provided that the inariiage of a lunatic (found such by legal process), before he or she is declared of sound mind (as provided by law), shall be void. The fourth disability is relationship by consanguinity or ffinity. By Statute 32 Henry VIII., c. 38, it is declared that all persons may lawfully marry, except such as are prohibited by God's law. Therefore, the murriages unlawful (l)y English aw) are those between parties related by con.sanguinity or affinity of the first, .second or third degree, according to the Levitical law. Marriages between parties who are of the four til or any higher degree are, therefore, lawful. Thus a father cannot marry his daughter, because the relationship is of the first degree; a brother cannot marry his sister, for they are related in the second degree ; nor can a man marry his niece, because they are related in the third degree. But first cousins or a nephew and a great-aunt may marry, for the relationship is of the fourth degree. Relationship by affinity always arises by marriage, but it extends only to the blood relations of each party united by wedlock. Thus a husband is related by airinity to all the blood relations of his wife, and vice versa, a wife to all the blood relations of her husband. .Vnd the degrees governing relationship by affinity are the same as those relating to con.sanguinity, so that a man cannot marry ^he sister of his deceased wife, fo)' she, being his sister (from a legal standpoint), is related to him in the second degree. Nor can a man marry the aunt or niece of his decea.sed wife, or her daughter by a former marriage, because the relationship, in each case, is of the third degree. In support of the prohibition of marriage between parties related by consanguinity or affinity, I shall give the following moral reasons : If there were not an insurmountable barrier between near relatives called to live together in the greate.st inti- utacy, this contact, continual opportunities, friendship itself and its innocent caresses, might kindle fatal passions. The family — that retreat where repo.se ought to be found in the bosom of order, and where the movements of the .soul, agitated by the scenes of the world, ought to grow calm — would itself become a prey to all the inquietudes of rivalry and to all the fury of pas- sion. Suspicions would banish confidence — the tenderest senti- ments of the heart would be quenched — eternal enmities or vengeance, of which the bare idea is fearful, would take their 2 I !^ 18 place. The belief in the chastity of young girls, that powerful attraction to marriage, would have no foundation to rest upon ; and the most dangerous snares would be spread for youth in every asylum where it could least escape them. Did not the law prevent such marriages, there would be rivalry between n married person and certain relatives ; marriageable women would be deprived of marriage on account of want of confidence in those who might desire to marry them ; the authority of the parent would be weakened if he could hojJe to have his daughter to wife ; and physical strength would degenerate, as a natural result of premature sensual indulgences. Who can doubt the wisdom of the law forbidding relatives to marry ? But as every rule has its exception, it may safely be said that no valid reason can be given for the prohibition which makes it unlawful for a man co marry his deceased wife's sister. The argument in favor of the prohibition is that it prevents rivalry between sisters ; the argument against the prohibition is that the aunt is the natural protector of her sister's children, and, tlierefore, that her protection will not cease when she becomes their step- mother. It seems that the good to the children outweighs the evil inflicted upon the jealous sisters ; and, if this is the case, it should be lawful to marry a deceased wife's sister. But the parties must not only be able and willing to contract, they must contract themselves in legal form to make a good civil marriage. Before the Statute 26, George II., c. 33, any contract made in the presence of, and with the assistance of a priest in holy orders, was a valid marriage at common law ; but from the passing of that statute till A.D. 1822, it was held that no mar- riage was valid unless it was celebrated in some parish ohurch or public chapel ; and from that time the rigor of the marriage rules was much relaxed by the passing of Acts which gave power to all Nonconformists to perform the ceremony in accordanc' with statutes enacted for that purpose. The marriage law of Ontario is based upon that of England, and its provisions are as follows : " The ministers and clergymen of every church and religious denomination, duly ordained or appointed according to the rites and ceremonies of the churches or denominations to which they respectively belong, and resident in Ontario, may, by virtue of such ordination or appointment, and according to the riten and usages of such churches or denominations respectively, solem- nize the ceremony of marriage between any persons not under a legal disqualification to contract such marriage. But no minister or clergyman shall solemnize the marriage ceremony unless authorized to do so by license, or certificate, or the publi- 19 iris, that powerful tion to rest upon ; ead for youth in em. Did not the rivalry between a rriageable women want of confidence e authority of the have his daughter erate, as a natural ho can doubt the ry ? But as every lat no valid reason it unlawful for a The argument in 5 rivalry between is that the aunt en, and, therefore, econ\es their step- en outweighs the this is the case, it ister. }illing to contract, make a good civil 33, any contract nee of a priest in aw ; but from the leld that no mar- nae parish ohurch r of the marriage which gave power my in accordance that of England, irch and religious )rding to the rite? ons to which they may, by virtue of to the rite^ and spectively, solem- ersons not under But no ceremony cate, or the publi- ^rriage. image nation of banns. Before any license or certificate is granted, one of the parties to the intended marriage shall personally .: make an aflfidavit, which shall state, (a) the place at which the marriage is to be solemnized ; (h) that he or she believes that that there is no affinity, consanguinity, precontract, or other law- ful cause or legal impediment to bar or hinder the solemnization of the marriage ; and (c) thot tne of the parties has, for the pre- ceding fifteen days, lived in the jurisdiction of the issuer of the license, or, if such is not the case, he or she must show that the license is not obtained in such place to evade due publicity or for any other improper purpose. ^ " In case either of the parties, not being a widower or widow, is under the age of twenty-one years, the affidavit shall further state thai the consent of the person whose consent to the mar- riage is required by law has been obtained thereto ; but if there is no person having authoritj' to give such consent, then upon oath having been made to that effect, it shall be lawful to grant the license notwithstanding the want of such consent. The time or place of the celebration of marriage is immaterial. Every clergyman shall, immediately after he has solemnized the marriage, enter in a book, to be kept by him for that purpose, a true record of the marriage ; and he is required to give a cer- tificate of the marriage, under his hand, if requested to do so by either of the parties thereto. No clergyman who performs a marriage ceremony, after banns published, or after a license or a certificate duly issued, shall be subject to any action or lia- bility for damages, or otherwise, by reason of there having been any legal impediment to the marriage, unless at the time when he performed the ceremony he was aware of the impediment." And the Canadian Act respecting offences relating to the law of marriage provides : " That every one who, without lawful ^authority, the proof of which shuil lie on him, solemnizes, or pretends to solemnize, any marriage, or procures any person to solemnize any marriage, knowing that such person is not law- fully authorized to solemnize such marriage, or knowingly aids or abets such person in procuring such ceremony, is guilty of a misdemeanor, and liable to a fine, or to two years' imprison- ment, or to both. Ever}' one who procures a feigned or pre- tended marriage between himself and any woman, and every one who knowingly aids and assists in procuring such feigned or pretended marriage, is guilty of a misdemeanor, and liable to two years' imprisonment. But no person shall be convicted of -any such offence upon the evidence of one witness, unless such witness is corroborated in some material particular bj?^ evidence implicating the accused ; and, in every case, the defendant shall 20 1-1 'i be a competent witness, in his own behalf, upon any charj^e or. complaint against him ; but no prosecution shall be begun after the expiration of one year from the time when the offence was committed. Every one who, being lawfully authorized, know- ingly and willfully solemnizes any marriage in violation of the laws of the Province in which the marriage is solemnized, is guilty of a misdemeanor, and liable to a fine or to one year's imprisonment ; but no prosecution for such offence shall be commenced, except within two years after the offence is committed. Every one who, being married, marries any other person during the life of the former husband or wife, whether the second marriage takes place in Canada or elsewhere, is guilty of felony, and liable to seven years' imprisonment. But this punishment of bigamy .shall not extend to (a) any second marriage contracted elsewhere than in Canada by any other than a subject of Her Majesty, resident in Canada, and leaving with intent to commit the offence ; (b) any person marrying a second time whose husband or wife has been continually absent from such person for the space of seven years then past, and who was not known by such person to be living within that time ; (c) any person who, at the time of such second mar- riage, was divorced from the bond of the first marriage ; or (d) any person whose marriage has been declared void by the sentence of any court of competent jurisdiction. The legal effects of marriage, and also of its dissolution, will now be considered. And first, as to the consequences of mar- riage ; by the fact, the husband and wife become one person in law ; the legal existence of the wife is incorporated in that of her husband ; and this disability of the wife continues while she remains in coverture, but ceases on the death of her hus- band, or on her legal separation from him. Upon this principle of mer(/er exists all the legal rights, disabilities and duties of ooth husband and wife. Hence, under the common law of England a man cannot grant anything to his wife or enter into any covenant with her, for the grant would assume her separ- ate existence, and to covenant with her would be to covenant with himself ; and, therefore, it is generally true that contracts made between husband and wife before marriage are rendered void by their subsequent intermarriage. But a husband may covenant with others as trustees for his wife, or he may convey to trustees for the benefit of his wife, or bequeath anything to his wife by will, for that cannot take effect until after the death of the husband. So the wife may act as agent for her husband, for in doing so she merely represents her lord. Generally, the husband is bound by the contracts of his wife, 21 )n any charge or. 11 be begun after a the otfence was uthorized, know- e in violation he marriage is able to a tine or 1 for such offence after the otfence narries any other or wife, whether or elsewhere, in )ri,sonment.' But ) (a) any second la by any other lada, and leaving person marrying been continually I years then past, be living within such second mar- marriage ; or (d) red void by the 1. dissolution, will 3quences of mar- ne one person in )rated in that of continues while ?ath of her hus- pon this principle es and duties of common law of vife or enter into ssume her separ- l be to covenant ue that contracts ige are rendered a husband may •r he may convey eath anything to t until after the as agent for her her lord, tracts of his wife, his assent being assumed, if there is presumptive evidence of cohabitation, but this assumption is subject to rebuttal. As it is the duty of the husband to provide his wife with necessaries, he is generally liable upon debts contracted by his wife for that purpose. This rule, however, does not apply to things which are not necessary ; but it should be observed that " necessaries " include all articles befitting the rank and station of the wife, and not merely such as are necessary articles of food and cloth- ing. If the husband and wife are living apart, the husband is liable upon the contracts of his wife for necessa/riea, unless he provides a sufficient allowance for the separate maintenance of his wife, and sees that it is paid. In every case the husband is not liable for the payment of things which are not necessaries, except they have been supplied by his authority. In no case is the husband liable upon the debts of his wife if she has eloped and is living with another man. However immoral the husband may be, the wife cannot compel him to provide separ- ate maintenance for her if her own life is not pure. '' He that comes into a court of equity must come with clean hands." Under the Married Women's Property Act, 1882, " All pro- perty, real or personal, possessed by a woman before, or acquired after, marriage is her separate property. She can acquire, hold and dispose of it by will or otherwise, in the same manner as if she were a feme sole, without the intervention of a trustee. But property may still be settled upon her in trust, and she may be restrained from anticipating property so settled. In respect of and to the extent of her separate property, a married woman may enter into contracts as though she were & feme sole. Every contract entered into by her is to be deemed to be entered into in respect of her separate property, to bind it, unless the contrary is shown, and not only the property she is possessed of or entitled to at the date of the contract, but all that she may subsequently acquire. And on such contracts she may sue and be sued, without joining her husband as a party to the suit. The liability upon the contracts does not appear to be personal, but to rest upon the separate estate, and to be limited by the extent of such estate. Where a joint judgment is given against hu.sband and wife, it is to be given against the husband personally, and against the wife as to her separate property ; and it is only in the case of a wife trading apart from her husband that she is made subject to the bankruptcy, in the same way as if she were a /ewe sole." The husband is bound to pay the debts of his wife contracted before marriage ; but in respect of such indebtedness he must be sued jointly with her; and if .she die before payment, the 22 husband is no longer liable, unless she has separate property to which he administers. In case the legal existence of the hus- band is suspended or extinguished (as in felony), the wife may then sue or be sued as & feme sole, for it would be unreasonable if no remedy were provided. The husband, by the old law, might give his wife moderate correction ; the reason assigned being that as he was to answer for her misbehaviour, it was but right that the law should give him power to restrain her by such domestic correction as is exercised by a father over his children, or a master over his apprentices. But as social refinements increased, this power of the husband over his wife became necessarily more and more unpopular, until finally, as far back as in the reign of Charles II., it began to be doubted whether the husband had ever legal power to chastise his wife. And now a wife may have security of the peace against her husband, and so may the husband against his wife. The dissolution of marriage can only take place in two ways : (1) by the death of husband or wife, and (2) by their divorce. On the death of the wife, the husband becomes entitled to a life-interest in all lands and tenements of which the wife at any time during the coverture was solely seized in possession of an estate of inheritace, in fee-sitnple or fee-tail, provided the husband has by her issue born alive which was capable of inheriting the estate, the husband is then said to be tenant by the courtesy of England. On the death of the husband, the wife becomes entitled to a life interest in one-third of the real property of her husband, and one-third of his personal property absolutely. This is the wife's dower. But the husband may defeat the wife's right of dower by disposing of his property during his lifetime, or by will. Moreover, all partial disposi- tions, such as mortgages or contracts, made by the husband, and even his debts, shall be good against her dower. Her dower may also be barred by any declaration, by deed or will, made by the husband, that his wife shall not be entitled to dower out of certain lands. Also a devise in lieu of dower may be made which will effectually bar her right to dower in all the lands of her husband. Thus it appears that the wife's title to dower is put absolutely within the control of her husband, and now she can only be endowed out of lands of which he dies iTltestate, and concerning which he has made no declaration against her dower. In the last place, I shall consider the eflfect of a divorce, and also of a judicial separation, upon the parties affected by it. The separation produced by a divorce is so complete that if the 23 -rate property to ence of the hus- i), the wife may be unreasonable s wife moderate e WHS to answer law should give correction as is naster over his d, this power of more and more .eign of Charles 1 had ever legal ly have security ly the husband le in two ways : •y their divorce. ^s entitled to a ^diich the wife ^d in possession d, provided the ivas capable of • be tenant by e husband, the ird of the real *sonaI property husband may f his property >artial disposi- ' the husband, dower. Her y deed or will, be entitled to of dower may 3wer in all the wife's title to husband, and i^liich he dies declaration 1 divorce, and itfeeted by it. te that if" the I divorced parties again cohabit they commit adultery, and the 1 children born of such cohabitation are bastards. There is ! nothing, however, to prevent divorced persons from marrying j^ again. If the marriage be pronounced void on the ground of con- ^ sanguinity, or otherwise, the effect is the same as if it h.ad never * taken place. If the marriage is di.ssolved on the ground of misconduct of either party, the court, in its discretion, may allow alimony. A judicial separation is merely a legal sever- ance of the parties from bed and board (a m.ensa et thoro). It does not dissolve the marriage, and hence the separated parties may again assume marital relations when they mutually agree to do so. After judicial separation the wife has the status of a feme sole. (Based upon " Blackstone.") CHAPTER IV. THE MARRIAGE LAW OF NATIONS. Having presented the moral, historical and legal aspects of marriage in the preceding chapters, I shall in this chapter treat of those principles relating to marriage which are common to all civilized nations, and, therefore, form part of the legal sub- structure of the law of nations. Marriage has ever been treated by civilized nations as a peculiar and favored contract. Throughout Christendom, marriage means the voluntary union for life of one man and one woman. The term is, therefore, not applicable to the union of a man and a woman as practised among the Mormons, by whose faith polygamy is lawful. It is the parent, and not the child, of society. In civil society it becomes a civil contract regulated and prescribed by law, and endowed with civil consequences. In many countries the civil ceremony is connected with religious observance ; but this is for the purpose of adding force to the ceremony ; the legal part is the civil, the religious addition having no binding legal efficacy. By the common law of England (and the law exists in America), marriage is purely a civil contract ; in the Catholic countries, and in some of the Protestant countries of Europe, it is treated as a sacrament. t 24 It is a general principle that between persons sui juris, marriage is to be decided by the laws of the place where it is celebrated. If valid there, it is valid everywhere. It has a legal ubiquity of obligation. If invalid there, it is equally invalid everywhere. The most prominent exceptions to this rule are those marriages involving polygamy and incest, and those positively prohibited by the public law of a country from motives of policy, and those celebrated in foreign countries bj' subjects entitling themselves, under special circumstances, to the benefit of the laws of their own country. But in conformity with the general principle, a marriage celebrated in a foreign state, to evade the law of the place of domicil, is held valid ; and if a person divorced from his first wife is rendered, by the law of the place of divorce, incapable of contracting a second marriage, still, if he contracts marriage in another state where the same disability does not exist, the marriage will be held valid. That is, the lex loci contractus governs in relation to to the validity of contracts, and the rtiarriage contract is made to conform to the general rule. Hence the status of the offspring ought to depend upon the same law. " A question has been much discussed, how far a marriage, regularly celebrated in a foreign country between persons belonging to another country who have gone thither from their own country for that purpose, is to be deemed valid, if it is not celebrated according to the law of their own country." In France such marriages are held void, on the ground of fraud committed by the contracting parties in evading the law of their domicil. But in England and America it has been settled, after a long struggle, that such marriages are good ; this con- clusion is a violation of the principle that evidence of fraud avoids a contract ; but it is based upon the broader principle that the public good should be the constant aim of the legislator. The tenderness of the law for the offspring of such marriages has resulted in making the nuptial relations of the contracting parties legal and binding upon them. Having considered how far the validity of marriages is to be decided by the law of the place where they are celebrated, I shall next present the operation of foreign law upon the inci- dents of marriage which respect the personal and proprietary rights of each, viewed in their relation toward each other as husl)anht to prevail, le matrimonial s and effects of h many qualiii- recognize such »le with its own , a marriage in ompatibility of such a marriage ise, in England, ntract is ques- at it has been lat the Scottish of such a tacit must now be re domiciled, if he place where it the place of have different onial domicil ? tly arise, and lation. Where 2t, and also of :hat such place that neither of he marriage is tu, or during a that sole pur- mial domicil ? tended domicil domicil. But, marry a lady )e deemed the iswer that it is the parties is the intention is to reside in ton Territory, )lace ; and the to the laws of home. It has imonial rights [of a wife who marries with the intention of an instant removal for residence into another state, are to be regulated by the laws of the intended domicil, when no marriage contract is made, or, one without any provision in this respect. But, where the husband and wife have different domicils, the general rule is that the domicil of the husband shall prevail ; because the wife is presumed to follow her husband's domicil. This rule Svill apply when no domicil is fixed upon immediately after the 'marriage. Under these circumstances, the rule seems firmly lestablished that in the marriage contract, as in other contracts, Mthe law of the place where they are to be perform,ed governs the ' '^contract. And it is submitted that this conclusion is in accor- dance with analogy and reason. For, if treated as a matter of ^acii contract, the marriage, reasoning from analogy, should be ^subject to the same rules as any ordinary contract; and if I treated as a matter to be governed by municipal law, to which I the parties were, or meant to be, subjected by their future I domicil, the doctrine seems equally capable of successful vindi- I cation. (Based upon " Story. ') CHAPTER V. LEGAL PRINCIPLES GOVERNING DIVORCES. In discussing the principles governing the granting of divorces I shall not enter into any argument to prove the moral right of a state to invest any court or civil body with the power to dis- solve marriage contracts. It may be sufficient to state that all modern nations deem it within the competency of legislation to provide for such a dissolution of marriage relationship, and to release in some form, and for specific reasons ; and, as a first general principle, it may be stated that a divorce regularly obtained, according to the law of the country where the mar- riage is celebrated, and where the parties are domiciled, will be hold a complete dissolution of the matrimonial contract in every other country. But this rule holds only when the divorce is 3 34 granted in the place where the parties are domiciled and where the marriage was celebrated ; and the presence of one of those important points and the absence of the other may change the legal relations of the parties, according to the jurisprudence of different countries, when the case comes under judicial con- sideration. " The real difficulty is to lay down applicable principles to govern cases when the marriage is celebrated in one state, and the parties are at the time domiciled in another ; where afterwards there is a change of domicil by one party without a similar change by the other party ; where, by the law of the place of celebration, the marriage is indissoluble, or dissoluble only under particular circumstances, and where, by the law of another place, it is dissoluble for various other causes, and even at the pleasure of the parties." By the law of Canada, marriage is indissoluble except by a special Act of Parliament. By the law of Massachusetts and New York, divorces are grantable by judicial tribunals for the cause of adultery. By the civil Hw an almost unbounded license was allowed to divorces, and wives were often dismissed by their husbands, not only for want of chastity and intolerable temper, but for causes of the most frivolous nature. In France, a divorce may be obtained judicially for the cause of adultery, excess, cruelty, or grievous injuries of either party; and, in certain cases, by mutual and persevering con.sent. In England, a divorce may be obtained by the husband on the charge of adultery against his wife ; and by the wife on a charge of adultery coupled with cruelty or desertion against her husband, the case being heard before the court for divorce and matri- monial causes which has superseded special legislation for divorce purposes. In some of the States of America divorces are grantable judicially for causes of inferior grossness and enormity, approaching even to frivolousness. In other States, divorces can be pronounced by the legislature only, and fur such causes as, in its wisdom, it may choose from time to time to allow. Such differences in the divorce laws of various countries must inevitably give rise to many perplexing questions. Sup- pose, for instance, a marriage celebrated in Ontario, where marriage is indissoluble, and a divorce obtained in New York, as it may be for adultery, under its laws, will that divorce he operative in Ontario, so as to authorize a new marriage there by either party ? It is submitted that the divorce would not be operative in Ontario (under Lolley's case), and, therefore neither party could contract a new marriage in Ontario, although they could do so in New York. 1 and where ne of those change the )rudence of idicial con- applicable lebrated in in another ; one party re, by the ssoluble, or 1 where, by ious other the law of cial Act of ^ew York, le cause of license was ed by their ,ble temper, France, a of adultery, ;y; and, in [n England, le charge of 1 charge of er husband, and niatri- islation for ca divorces )ssness and ther States, ly, and fur ime to time s countries ions. Sup- ario, where New York, ) divorce be ■riage there ) would not , therefore n Ontario, 35 Upon the continent of Europe there has long existed a diflfer- ence between theCatholics and the Protestants upon the subject of divorce. Catholics regard marriage as a sacrament, and con- sequently believe that its effects should be governed by the divine law ; and, according to their interpretation of that law, they hold marriage to be indissoluble ; for, " Quod Deus con- junxit, homo non separet" — " What God hath joined together let not man put asunder." Protestants are less rigid in their interpretation of t^he Divine Word. In England and Scotland divorces are only granted for the Scriptural reason of adultery ; but in the Protestant continental states of Europe divorces may be granted for many other causes ; and in America, as we have seen, it is generall}' treated as a matter of civil regulation. From the different nature of the respective laws of England and Scotland upon the subject of divorce, from their national union, and from their constant, easy and familiar intercourse, the courts of both countries have been frequently called upon to pronounce very elaborate judgments respecting the juris- diction and law of divorce in suits and contestations before them. Several questions on this .subject have been recently discussed in the courts of Scotland, and as they involve leading principles on divorce, it is necessary to present them in this connection. One is whether a, pervianeiit domicil of the parties is indispensable to found a jurisdiction in cases of divorce. This question has been answered by the courts in the negative ; the doctrine being established by the decisions given in a num- ber of cases, that a temporary, residence of the parties to the suit is sufficient to found the jurisdiction. This doctrine has been maintained with great learning and ability in Lolley's case, where English subjects were married in England, and afterwards the husband went to Scotland and procured a divorce, and then returned to England and married another wife, it was decided that the second marriage was void, and the husband was guilty of bigamy. The decision arrived at in this celebrated case turned upon the point that at the time the divorce was granted both husband and wife were in fact domiciled in England, and the residence in Scotland was merely fugitive, and not temporary. And in another case, where there was no change of domicil, and the parties were not at the time bona fide domiciled in Scotland, a Scottish divorce from an English marriage was declared utterly void. The principles under discussion naturally give rise to the following questions : Whether an English marriage between English subjects can, under any possible circumstances, be dis- solved by a decree of divorce in Scotland ? Whether a marriage 1^ 86 in Scotland by English subjects, domiciled at the time in England, is dissoluble under any circumstances, by a decree of divorce in Scotland ? Whether, in case of a marriage in Eng- land, it will make any difference that the parties are both Scotch persons, domiciled in Scotland, or afterwards become bona jide and permanently domiciled there ? Upon these questions the highest tribunals in Scotland have come to the following conclusions : First, that a marriage between English subjects in England, and indissoluble there, may be lawfully dissolved by the proper Scottish court for a cause of divorce good by the law of Scotland, when the parties are within the process and jurisdiction of the court. Secondly, that a Scottish marriage by persons domiciled at the time in England, is dis- soluble in like manner by the proper Scottish court. Thirdly, that, in case of a marriage in England, it will make no differ- ence that the parties are Scottish persons domiciled in Scotland, or afterwards bona jide and permanently domiciled there. The result of these opinions is that the mere fact of the marriage having been celebrated in England, whether it is between English or Scottish parties, or both, is not jper se a defence against a suit of divorce for adultery committed in Scotland. That those conclusions are based upon sound reasoning and common-sense, admits of no doubt. Every person is bound to obey the laws of the state in which he sojourns or resides. He seeks redress of wrong from that state ; and hence, his case must be decided by the law of that state. The obligations of husband and wife are mutual and enduring. At the time of marriage it must have been the intention of each to fulfil their marital vows in whatever country Providence might lead them to reside. They, therefore, had in view the redress of all wrongs and the .enforcement of all rights by the law of the state which at any time should give them shelter and protec- tion. And, moreover, the conclusions under consideration are strictly in accordance with the fundamental principle of inter- national law, that every state is supreme within ils own realm. In opposition to the doctrine of the Scottish courts it was held for .some time that the decision given in Lolley's case proceeded upon the general ground that an English marriage is incapable of being dissolved under any circumstances by a foreign divorce. And, Lord Eldon is reported to have said, ^* Here, then, we have a case (Lolley's) in which both parties were domiciled in England, and then the husband went to Scot- land, where it was said he had a domicil by reason of origin and his being heir of an estate-tail there, and instituted a suit against his wife, which she said did not affect her in England ; 87 tie time in a decree of i^e in Eng- s are both rds become Jpon these ome to the en English pe lawfully of divorce within the t a Scottish and, is dis- Thirdly, } no differ- In Scotland, there. The le marriage is between a defence Scotland, isoning and is bound to Bsides. He ce, his case ligations of the time of fulfil their t lead them Iress of all law of the and protec- eration are lie of inter- own realm, urts it was )lley's case marriage is ,nces by a have said, )th parties nt to Scot- n of origin uted a suit 1 England ; and if his domicil was at Durham, the answer would be suffi- cient, though the rule of law should be admitted that the domicil of the wife followed that of her husband. But if the jurisdiction, by reason of the original domicil (Scotland), could be maintained, it would be attended with the most important consequences to the law of marriage." And Lord Brougham, in delivering a judgment some time afterwards, .said, " I hold it to be perfectly clear that Lolley's case stands as the settled law of Westminster Hall at this day." For a long time, English judicial opinions were against the doctrine that an English marriage is dissoluble by a Scottish divorce, or any other. The reasoning by which this position was fortified was to the following effect: The lex loci contractus furnishes a just rule for the interpretation of the rights and obligations incidental to the marriage contract. If any other rule were adopted, marital rights and obligations would become loose and un- settled, and increase of immorality would be inevitable. It is not just that one party should be able, at his option, to dissolve a contract by a law different from that under which it was formed, and by which the other party understood it to be governed. There is no solid groun