So far as its validity in law is concerned, in many of the United States, marriage is declared to be a civil contract.' It is considered in every country as a contract, but the better opinion appears to be that marriage is something more than a mere civil contract." "It is rather to be deemed an institution of society founded upon the consent and contract of the parties; and in this view it has some peculiarities in its nature, character, operation, and extent of obligation, different from what belongs to ordinary contracts.' In the sense that it is substantially founded on mutual consent, marriage is a contract, because it cannot be valid without the spontaneous concurrence of two competent minds; but it is a contract of its own class, and, unlike ordinary contracts, is of public right, because it establishes fundamental and most important domestic relations. Society being interested in the existence and harmony of all its social relations, marriage, the most elementary and useful of them all, is regulated and controlled by the sovereign power of the state, and cannot, like mere contracts, be dissolved by mutual consent only by the contracting parties, but may be abrogated by the sovereign will, either with or without the consent of both parties, whenever the public good, or justice to both or either of the parties, will be thereby subserved."

The proper view, therefore, to be taken is that adopted by modern text-writers, who prefer to regard marriage as a status or personal relation arising out of a civil contract to which the consent of parties capable of making that contract is necessary. As distinguished from other contracts, "marriage is a contract altogether of a peculiar kind; it stands alone, and can be assimilated to no other contract whatever." The contracting parties, having entered into the married state, have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which vest not upon their agreement, but upon the general law of the

2 Stim. Am. Stat. Law, Sec. 6,101.

3 Bouv. Law Dict.

4 Story Confl. L., Sec. 108, n.

57 Dana (Ky.) 181 (1838).

6 Cal. Civ. Code. Sec. 55; Fras. Dom. Rel. 87, 88; Story Confl. L., Secs. 109-111.

7 Bish. Mar. & D., Vol. 1, Sec. 27.

state, statutory or common, which defines and prescribes these rights, duties, and obligations. They are of law, not of contract. It was of contract that the relation should be established, but being established, the power of the parties, as to the extent or duration of these rights, duties, and obligations, is at an end. Their rights under it are determined by the will of the sovereign as evidenced by law."

2. Miscellaneous Terms. - The marital status, or relation of husband and wife, being capable of existing only in pairs, must be created by the coexistence of the necessary parties capable of contracting; hence, the spouses, or partners in marriage-one, the husband, the other, the wife.

A husband is defined to be a man who is married to a woman, who bears the correlative title of wife. He is the one who assumes the rights and responsibilities of the male party in the marriage relation.

A wife is a woman who is united to a man in wedlock; one who has a husband and who assumes the duties of the female party to a marriage contract.

A morganatic marriage is the union of a man of high rank to a woman of lower station, which is contracted upon condition that neither the wife nor the issue, if any, shall claim the title, or rank, or property of the husband. This kind of marriage was common during the middle ages and is occasionally contracted in this age, in some countries. A regular marriage ceremony is performed in forming the union, and any children born to the spouses are considered legitimate, though they cannot inherit under the terms of the contract. The common epithet applied to a morganatic marriage is left-handed marriage.

A Scotch marriage, so called because such wedlock is recognized by the Scotch law, is a marriage by mutual consent, without formal solemnization, the parties declaring that they presently do take each other for husband and wife.

Monogamy is the state of being married to only one person at one time; the practice of marrying only once, or the

8 51 Me. 483 (1863).

principle which upholds that practice, or forbids remarriage after the death of a former husband or wife (opposed to digamy, bigamy, and polygamy).

Digamy is a term applied to the second marriage of any person; opposed to monogamy.

Bigamy, literally, is double marriage; the marriage of a man or woman who has another lawful spouse living; the crime of marrying any other person while having a legal spouse living.

Polygamy is the condition of having more than one wife or husband at the same time; the practice of having a plurality of wives.

ESSENTIALS TO A VALID MARRIAGE

3. Mutual Consent. - The principal essential to a valid marriage is a present agreement between competent parties to take each other for husband and wife. Both parties to marriage must consent mutually to be joined in the bonds of matrimony by words indicating a union at the present time, and the agreement must be to enter into what the law holds to be the marriage relation. An agreement by words denoting a future promise to marry is not sufficient, unless followed by consummation. No particular manner is prescribed for the expression of consent to form the marriage relation, other than such as local statutes prescribe, but there must be mutual concurrence in the intention of both parties," as in every other contract. A marriage ceremony actually and legally performed, though in jest and not intended to be a contract of marriage, being so understood and treated by both parties at the time, is not a marriage contract."

Generally, a marriage is valid, which is contracted by competent parties who mutually consent thereto, and who are married in accordance with formalities made necessary by the common law, or by the requirements of such statutory. laws which distinctly state a marriage shall be void for noncompliance therewith, notwithstanding the parties fail to

94 N. Y. 230 (1850).

1121 N. J. Eq. 225 (1870).

102 N. H. 268 (1820); 2 Cal. 503 (1852); 12 Vt. 396 (1840); 6 Binn. (Pa.) 405 (1814).

procure a license, or fail to comply with any other preliminary directions of statute law." However, all the requirements of the common law and of statutory laws should be complied with; the contract should be celebrated as prescribed by the law of the place of contract, followed by a consummation of the marriage."

4. Solemnization. - The celebration of a marriage is the performing of certain formalities by the parties in the presence of a competent celebrant, such as a minister, judge, magistrate, mayor, or other official, clothed by law with the authority to act as such; and the formalities are either religious or civil, just as prescribed by statutes in the several states, or countries, and which are prescribed for the benefit of the public.

The usages of most civilized nations seem to require a solemnization of some form before witnesses; yet, if a statute do not declare the contract void, if not solemnized before a magistrate or minister, the marriage is valid. Where an acting magistrate or minister solemnizes a marriage, but under such circumstances as to expose him to a penalty, the marriage is still valid as to the parties joined and as to the public.'

14

A person cannot officiate as the celebrant of his own marriage where the law has provided that a marriage is to be celebrated by an officiating clergyman, or other official; and the law does not admit any difference between the marriage of a clergyman and a layman. So that where a clergyman officiates at his own marriage, the law having provided that a marriage must be celebrated in the presence of a clergyman in holy orders, the fact that the bridegroom is himself such a clergyman, there being no other clergyman present, will not make the marriage valid."

5. Solemnization of marriage is controlled chiefly by the common law. In jurisdictions which have not mandatory

123 Wall. (U. S.) 175 (1865).

133 A. K. Marsh. (Ky.) 368, 377 (1820). 142 N. H. 268 (1820).

152 H. L. C. (Eng.) 274 (1861); 10 C1. &

Fin. (Eng.) 534 (1843).

statutes providing how marriage shall be celebrated, but only directory statutes, providing for certain previous permission, or notice, who may perform the ceremony, and what record shall be kept, a solemnization by the common-law doctrine constitutes a good marriage; or, as one of the best authorities has said, "It has become established in authority that a marriage good at the common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity.”

A statute may declare that no marriage is valid unless it be solemnized in a prescribed manner, which is mandatory, and a different kind of enactment from one requiring a marriage to be entered into in the presence of a magistrate or clergyman, or that it be preceded by a license or publication of banns, or attested by witnesses, which provisions are merely directory, and not destructive of the common-law right to form the marriage relation by words of present assent." Such a statute does not deny validity to marriages not formed according to their direction, but affects only the legality of a marriage. The terms validity and legality have very different meanings in their application in this connection, which may be apparent from what has already been explained. When validity is regarded in the light of designating the force, soundness, and stability of a marriage relation, and legality, as applied to a marriage, is accepted as meaning one solemnized in conformity to a law enacted to regulate certain formalities concerning the entering into the bond of matrimony, the distinction will be obvious. In the United States, the settled doctrine of the courts is, that where parties agree presently to take each other for husband and wife, whatever the form of ceremony, or if all ceremony be dispensed with, and from that time they live together professedly in that relation, a valid marriage is constituted by the proof of these facts."

It is not essential that the words of a marriage service. which are directed to be repeated by a man and woman, shall

16 Bish. Mar. & D., Sec. 424.

17 96 U. S. 76 (1877).

18 31 Mich. 126 (1875)