Contract of Marriage

Contract of Marriage may be considered in two senses:

I. Agreement for Marriage in the Abstract. The law of the Church on this point is, as on many other points, compounded of the Jewish and Roman laws, under the influence of New-Testament teaching. It is derived mainly from the latter system of legislation, especially in regard to the marriage of the laity; from the former mainly, in regard to that of the clergy. The validity of the marriage-contract generally depends on two points:

1. Strictly speaking, the inherent capacity of the parties for marriage turns only upon three particulars:

(a) Sufficient Age. On this it may be observed that the old Roman, like the old Jewish law, attached the capacity for marriage by age to the physical fact of puberty; and the same principle is practically followed in all systems of legislation which take notice of age at all in this matter, although it is generally found convenient in the long run to fix an age of legal puberty, without reference to the specific fact. Thus, in the Digest, it is provided that the marriage contract is only valid on the part of the wife when she has completed her twelfth year, even though she be already married and living with her husband. Justinian himself, in his Institutes, professes to have fixed, on grounds of decency, the age of puberty for the male at fourteen; both which periods have very generally been adopted in modern legislation.

The earlier Roman legislation seems to have fixed an age beyond which a woman could not marry, since we find Justinian abolishing all prohibitions of the earlier Roman law against marriages between men and women above sixty and fifty. Nothing of this kind is to be found in later systems of legislation, although disparity of age in marriage has sometimes been sought to be suppressed.

Physical incapacity in persons of full age has never been held to produce actual inability to enter into the marriage contract, but simply to render the marriage voidable when the fact is ascertained. Nor is the fact one of importance in reference to the marriage relation, except where divorce is put under restrictions. SEE IMPOTENCY.

(b) Defect of Reason acts inversely to defect of age. Thus, madness was fatal to the validity of the contract, but did not dissolve it when afterwards supervening.

(c) The Freedom of Will of the parties, on the other hand, can only be testified by their consent to the marriage SEE CONSENT; but it may also be indirectly secured, by limitations of a protective character placed on the exercise of the capacity to contract marriage. According to the jurists of the Digest, a man might marry a woman by letters or by proxy if she were brought to his house, but this privilege did not belong to the woman.

There was one large class of persons in whom there was held to be no freedom of will, and, consequently, no capacity to contract marriage. Marriage is simply impossible where the persons of slaves of both sexes are subject, absolutely without limit, to the lusts, natural or unnatural, of a master. The slave, his master's thing, can have no will but his master's; in respect of the civil law, properly so called, i.e., the law made for citizens, he does not exist; his condition is almost equivalent to death itself. Thus the Roman law has never mentioned connections between slaves. Connections between slaves and serfs are indeed mentioned, but without the name of marriage, and only to determine the condition of the offspring, which is fixed by that of the mother. Rustici, a class of peasants who seem to have been of higher status than the "serfs," could contract marriage among themselves.

The recognition of slaves' marriages originated, not in the Roman law, but unquestionably in the Jewish law. Although only "Hebrew" servants are mentioned in the passage of Exodus on this subject (Ex 21:3-6), it is clear that the Pentateuch recognized the marriage of persons in a servile condition. With the sweeping away by the Christian dispensation of all distinction between Jew and Gentile it is but natural to suppose that the right of marriage would be extended from the Hebrew slave to the whole slave class. Such right, indeed, was not absolute, as will have been observed, but flowed from the master's will. and was subject to his rights. The master gave a wife to his slave; the wife and her children remained his, even when the slave himself obtained his freedom. As respects the marriage of slaves, it appears clearly to have been recognised both by the State and the Church in the reign of Charlemagne.

2. The Extrinsic Conditions of the capacity for marriage were very various. Some are purely or mainly moral ones; the leading one of this class, that of the amount of consanguinity which the law of different nations has held to be a bar to the validity of the nuptial contract, will be found treated of under the heads of SEE AFFINITY; SEE COUSINS-GERMAN. Another — singular, because exactly opposite feelings on the subject have prevailed in different countries — is to be found in the prohibition by the later Roman law of marriages between ravishers and their victims, under severe penalties, both for the parties themselves, and the parents who consented to it (Justinian, Cod. b. 9, t. 13:§ 1, November 143, 150).

Another limitation on the marriage contract, which must be considered rather of a political nature, and which prevails more or less still in the military code of almost every modern nation, was that on the marriage of soldiers. Under the early Roman polity, marriage was absolutely forbidden to soldiers; but the emperor Claudius allowed them the right, and it seems certain that there were married soldiers under Galba and Domitian. Severus seems, however, to have been the first to allow soldiers to live with their wives. Philip I and II, on the other hand, seem to have restricted soldiers to a first marriage. Under Justinian's Code, the marriage of soldiers and other persons in the militia was made free, without solemnities of any sort, so long as the wife was free-born. There having been no regular armies among the barbarian races, nothing answering to the prohibition is to be found in their codes.

There were also restrictions on marriage which must be considered protective in their character, and intended to secure real freedom, as well as the wisdom of choice. To these, in the highest view of the subject, belong those which turn upon the consent of parents, SEE CONSENT; although this restriction seems generally to have had its historic origin in a much lower sphere of feeling — that of the social dependence and slavery, or quasi-slavery, of children to their parents. Next come the interdictions placed by the Roman law on the marriage of guardians or curators, or their issue, with their female wards.

Lastly come the interdictions on the marriage of officials within their jurisdictions, which are analogous in principle to those on the marriage of guardians with their wards. No official could marry (though he might betroth to himself) a wife born or domiciled within the province in which he held office, unless he had been betrothed to her before; and if he betrothed a woman, she could, after his giving up office, terminate the engagement, on returning the earnest-money; but he could give his daughters in marriage within the province. The marriage of an official contracted against this interdiction seems to have been considered absolutely void.

Among the specially religious restrictions placed on the marriage contract in the early ages of the Church, the one which would first claim our attention is that on the marriage of Christians with Gentiles, or eventually also with Jews and heretics.

That marriage generally was a civil contract, subject to the laws of the state, seems to have been the received: doctrine of the early Church; while at the same time it claimed also power to regulate it in the spirit of the Gospel, as is shown, for instance, in the strictness of our Lord and his apostles against divorce, although freely allowed both by the Jewish and the Roman law. Hence pagan betrothals and marriages were, as Selden observes, held valid by the Christians (Uxor Ebraica, book 2, c. 24).

The next religious restriction of marriage is that connected with the monkish profession, which must be distinguished from the early vow of virginity in the female sex, and from the institution of the Church virgins. The vow of virginity, which for many centuries now has been considered an essential prerequisite of the monastic profession, was not so by any means in the early heroic days of monachism (q.v.).

The prohibition against the marriage of monks and religious women by degrees found its way into the civil law of several of the barbarian kingdoms besides France. Among the laws of King Luitprand of Lombardy, A.D. 721, or later, we find one of this kind as to women, in which their position when they have assumed the religious habit is assimilated to that of girls betrothed under the civil law, whose marriage entails a penalty of five hundred solidi. The Visigothic code inflicts "on incestuous marriages and adulteries, or on sacred virgins and widows and penitents, defiled with lay vesture or marriage," the penalties of exile, separation, and forfeiture of property. By the time of the Carlovingians, the civil' and ecclesiastical law almost wholly coalesce. In the 6th book of the Capitularies we find one almost in the same terms with the Visigothic law above quoted, declaring that marriage with a virgin devoted to God, a person under the religious habit, or professing the continence of widowhood, is not a true marriage, and requiring the parties to be separated by either the priest or the judge, without even any accusation being lodged with him, the penalty being still perpetual exile. In the East, on the contrary, about the end of the 8th century, it is noted as one of the features of Constantine Copronymus's tyranny, that he compelled monks to marry.

In respect of the marriage of the clergy, however, the restraint which occupies most space in the Church legislation of the period which concerns us, is that on digamous or quasi-digamotis marriages, which will be considered under the head of DIGAMY. Meanwhile, however, there was growing up a feeling against all marriage of the clergy while in orders, tending to their absolute celibacy. The notices which occur of other restraints upon clerical marriages are comparatively few and unimportant. SEE CELIBACY.

II. We have now to say a few words on the contract of marriage, in the sense in which the expression is still used in France (marriage settlement), of the written evidence of the contract itself as between the parties. The marriage contract among the Romans was habitually certified in writing on waxen tablets, which, however, might also be used after marriage, e.g. on the birth of a child. "Nuptial tablets" were signed both by the parties and by witnesses, and the breaking of them was held to be at least a symbol of the dissolution of marriage, if it had not the actual effect of dissolving it. By a constitution of the emperor Probus, the drawing up of such "tablets" was enacted not to be necessary to establish the validity of the marriage or the father's power over his offspring. They were perhaps not necessarily, though usually, identical with the "adotal tablets," "dotal instruments," or "dotal documents," specifically so called, but must have been comprised with them at least under the general terms "instruments" or "documents;" as to which it is provided, by a constitution of Diocletian and Maximin, that where there is no marriage, "instruments" made to prove marriage are invalid; but that where there are none, a marriage lawfully contracted is not void; nor could the want of signature to such by the father invalidate his consent. Nuptial instruments were by Justinian made necessary in the case of the marriage of stage-players. Under the 74th Novel, indeed, all persons exercising honorable offices, businesses and professions, short of the highest functions in the state, were required, if they wished to marry without nuptial instruments, to appear in some "house of prayer and declare their intentions before the 'Defender of the Church,'" who, in the presence of three or four of the clerks of the Church, was to draw up an attestation of the marriage, with names and dates, and this was then to be subscribed by the parties, the "Defender," and the three others, or as many more as the parties wished, and if not required by them, to be laid up, so signed, in the archives of the church, i.e., where the holy vases were kept; and without this the parties were not held to have come together "with nuptial will." But this was only necessary where there was no document fixing a dos or anti-nuptial donation; nor was it required as to agriculturists, persons of mean condition, or common soldiers. It will be obvious that we have in the above the original of our marriage certificates. SEE DOWRY; SEE MARRIAGE.

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