Page:The American Cyclopædia (1879) Volume XI.djvu/201

MARRIAGE MARRIAGE SETTLEMENTS 189 binding marriage, if there is no legal disability on the part of either to contract matrimony ;" and such we believe to be the law. (For mar- riages void or voidable for fraud, duress, or other cause, see DIVORCE.) Contracts to marry at a future time are recognized by law, and the rules of law in relation to them are in some respects peculiar. The promises must be reciprocal, and a woman is bound by such a contract as much as a man. Nor is there any- thing in the law to prevent an action by the man for a breach of this contract; but such actions are not common, and would not be favored by court or jury. The action may be brought by an infant, but not against one. The very words, time, and manner of the prom- ise are not often provable, and are never in- dispensable ; for precise and direct testimony to the promise is not demanded. Indeed, courts have, in some instances at least, gone quite far enough in instructing or permitting a jury to infer a promise of marriage from rather slight indications. In general, however, language used to third persons expressive of a purpose, or even a promise, to marry the plaintiff, does not prove this promise, unless it was addressed to a parent or to one who stood in the place of a parent. This contract, like every other, may be on condition ; and if the condition be reason- able, the law will respect it, and will not sus- tain an action on the promise unless the condi- tion be performed. The defences to such an action are, generally, either a denial of the promise, or if that be proved, anything which would make the marriage unlawful. But a previous and existing marriage of the defen- dant, although it would have made his marriage with the plaintiff illegal and void, would not be a defence against this action, if it were un- known to the plaintiff when the agreement to marry was made by her. The defence most usually relied upon is a denial of the promise ; and after that, the bad character of the plaintiff. If this be made out, it is a sufficient defence ; but if it be attempted and fails, the attempt may be regarded by the jury as a ground for in- creasing the damages against the defendant. If the defence be a specific criminal act, it must be proved specifically. If it be general bad character, evidence of bad reputation is receiv- able. Neither specific bad conduct nor gen- eral bad character constitutes a defence, if it was known to the defendant when he made his promise ; although, even then, it might be considered in mitigation of damages. There are decisions for and against permitting the fact of seduction to be received in evidence in an action for breach of contract to marry, for the purpose of swelling the damages. But it generally finds its way into the case ; and the question of damages is in this case, more than in most others, entirely within the discretion of the jury. The action does not survive to the representative of a deceased promisee, nor can it be maintained against the representative of a deceased promisor. Contracts in restraint of marriage are wholly void, by the policy of the law. Thus no action can be maintained on any promise or obligation not to marry; as not to marry any woman but the promisee ; or by a widow not to marry again ; or a promise not to marry within six years. There is also a class of contracts which, from the frequency with which they appear in English law books, would seem to be not uncommon in that country, and which are called " marriage bro- kerage (sometimes brocage) contracts." They are, in general, contracts for the payment of money or transfer of property to some per- son, by way of compensation for his or her procuring a marriage for the party paying. Such a contract is void on grounds of morality and the public good, without any reference to the expediency or propriety of the marriage itself. The matrimonial connection various- ly designated in the laws of the first Chris- tian emperors and the decrees of some early councils as concubinatus and licita consue- tude, was considered by the Roman Catholic church to be a real marriage, though not celebrated with the same solemnity nor attend- ed with the same civil consequences as a con- tract recognized by both the civil and ecclesi- astical courts. It is what in modern times is called " a marriage of conscience," and what ancient jurists termed semi-matrimonium. It is still called in Germany Halbehe, where the name of half-wife, Halbweib, is bestowed on a woman to whom, though a real wife, the husband does not convey his rank. This con- dition responds to that of the semi-uxor of the canonists, who also described such women as uxores sine dote minus solemniter ductce. This sort of union, though discountenanced by the Roman Catholic church, was held, when con- tracted seriously, to be indissoluble. Hence she would not tolerate temporary unions of this kind. Thus, the 17th canon of the first council of Toledo (400) excommunicates all who, having a lawful and acknowledged wife (uxor), presume to have also a concubine; while it admits to communion the man who is contented to live for ever with a wife of inferior rank. The canon merely enforced monogamy. (See CONCUBINAGE.) MARRIAGE SETTLEMENTS. A promise to give or advance to a woman, or settle upon her, money or an estate, on her marriage, is valid ; because the marriage is regarded by the law as a sufficient consideration for it. But it must be made in writing and signed, under the English statute of frauds, and wherever that clause is reenacted in this country. A mere representation concerning the pecuniary con- dition of a party, if made in good faith, will not bind one to make his representations good. Letters from parents or relatives, when suffi- ciently specific, are held to bind them. Con- tracts in fraud of marriage settlements, and in- tended to defeat them, are void ; as a private bargain with the husband, or the husband and wife, that he shall pay back part of her for-