Page:The New International Encyclopædia 1st ed. v. 13.djvu/112

MARRIAGE. tical courts to mean that consanguinity and alllriity were impediments to marriage as far as the third degree ol" civil computation. L'nder this rule a man might not marry liis aunt or his niece or the daughter of his deceased wife's sister, but might marry his first cousin. Kela- tionship by the lialf bluod was put on the same footing asthat by the full blood, and illegitimate consatiguinity was treated as equivalent to legiti- mate blood-relationship. On the other hand, the illegitimate or natural alUnity of the canon law, which was allirmed in 28 Henry Vlll., c.7; is held to have disappeared from English law with the repeal of that statute. The courts regarded mar- riages within the forbidden degree as voidable rather than void, but such marriages were de- clared void by Act of 5 and G William IV. (1835). Itcpeated efforts to legalize marriage with the deceased wife's sister liave thus far failed in Kngland, although in all the ]5ritish colonies the prohibitions based on collateral alTin- ity have been lenioved. As to proof of marriage, the common law ad- mits any evidence of matrimonial consent. Where a formal marriage, religious or civil, has taken place, it is presumed, until the contrary is shown, that the parties were able to marry, that their consent was complete and free, and that all necessary forms were observed. If no formal marriage has taken place, or none is proved, the fact that the parties have lived together as hus- liand and wife, have acknowleilged themselves, or have been generally reputed, to be husband and wife, raises a presumption of marriage. This presumption, however, is invalidated if it can i)e shown that the relation was illicit in its origin. It is a peculiar feature of the English common law that it gives an action for damages for breach of contract to marry. See Urkacu. roRKliiN iI.l!RHC.E.s. The question whether and under what conditions a court of law will recog- nize as marriage a union established in another jurisdiction is a question of conflict of laws (q.v.). The general rule, all over the civilized world, is that if the forms required where the nuirriage was established liave been observed, the marriage will be recognized as formally |)erfect everywhere. The capacity of parties to marry is determined, according to thi> prevailing Euro- pean theory, by the law of their domicile, and the English courts now follow this rule. In some of the European States, however, capacity to marry is determined by the law of the country of which the person is a citizen or subject, whether he or she he domiciled there or elsewhere. In the I'nited States the courts follow the older English <lecisions. according to which the capacity of the parties to marry, as well as the sullicienev of the forms oliscrved. is determined by the law of the State in which the marriage takes place: so that eifizens of any State can escape the re- strii-tions imposed by their own State by simply crossing the State line, Statitorv Ki le.s i.- tiik I'MTEn States, T.ord Ilardwicke's act did not ajiply to the colo- nies, and never became a part of the common law of the t'nited States, In nearly all of the I'nited States, however, statutes have been emu'ted pro- viding for a ceremonial marriage, and in most eases retpiiring also a license to marry granted by the properly constituted ofTieer. usually the clerk of the municipality where the marriage 92 MARRIAGE. is solemnized or the oflicer having supervision over vital statistics. The nuirriage ceremony is usually required to be performed in the presence of two or more witnesses, by a priest or clergyman of some church, or by certain enumerated civil officers, such as judges of courts of record, justices of the peace, police justices, mayors, aldermen of cities, and county clerks, ^'arious penalties are imposed for failure to comply with the provisions of the stivtute. and in some States intentional vio- lation of the law is made a criminal oll'ense. In most States, in the absence of a positive provision of the statute that marriages not comi)lying with the requirements of the statute shall be Void, the statute is deemed to he directory only, and not in any manner to atl'ect the validity of the so- called common law marriage. This is sul)stan- tially the law in all of the States, except Cali- fornia. Kentucky, Jlissouri, Jlaryland, Jlassa- chusetts, Xorth Carolina, Vermont, Washington, and West Virginia, in all of which it is held that the comnum-law marriage has been abolished by statute. But in some of these States, notably Massachusetts, Washington, and West Virginia, there are validating statutes providing that mere irregularities when an attem])t is made in good faith to comidy with the statute shall nut all'e.t the validity of the marriage. A statute of Xew York, passed in llKIl, where common-law as well as statutory ceremonial mar- riage had each been held to be valid, requires a non-ceremonial marriage to be evidenced by a written agreement to be entered into by the parties to the marriage in the presence of two witnesses and acknowledged in the same manner as conveyances of real estate. It is probable that this statute does away with common-law marriage in Xew York, In most of the United States the age at which an infant may consent to enter into the marriage relation has been raised by statute to sixteen and in some of the States to eighteen years. These statutes do not. however, change the common-law rule that such marriages are not void, hut riiitlahlc cmly at the option of the infant or of his parent or guardian. See Infant; P.rent and ("iiii.i); MoRn.vNATic Marriage. v BiiiLioGRAi'iiY. On the history of marriage as I an institution, consult: Westermarck. The His- • lori) of Human Mrnriarir (3d ed,, London, Ifl02), a comprehensive historical study, with an ex- tensive bibliography; Letourneau, L'i'iolulion da mnriagc ct dc la famille (Paris, 1.S88; trans., The Ernlutinn of Marriage and of the Famihi, Xew York. 1891 ) . These are general works. The original stmlies which have developed the scicntilic theory of the subject are: jlorgan, Thr I.riiqitr of the Iroquois (Rochester, 1S40; reprinte(i, Xew York, inOI), the first work to direct scientific attention to the true character of marital and kinship systems among uncivil- ized men; Kiifilrms of Consanfjuiiiilii ami A/Jinihi of the Human Famihi (Washington, 1871): Aneient Sori'r/i/ (London and X'ew York. 1877) ; Unchofen, Dast Mullerrrehl (Stu(lg;irl, 1801); Maine, Aneient Lar (London, ISfil) ; F.arhi Law and Cuilom (London, 1883; Xew York. I'SSfi) ; Mcl.eninin, I'rimitire Marrimje ( I.ondnn. 18(1,")), ri'printcd in Studies in Aneient liistnni (London, lS7<i) ; The Patriarehal Theory (London, 188.5) ; ff Indies in Aneient Uistorti: Seeond Series (Lon- don, 1896) ; Gallon, Eercditary Genius (London,