Extracted From:
  A LAW DICTIONARY ..., SIXTH EDITION, 1856
  by John Bouvier, CHILDS & PETERSON, PHILADELPHIA

MARRIAGE. A contract made in due form of law, by which a free man and a free
woman reciprocally engage to live with each other during their joint lives, in
the union which ought to exist between husband and wife. By the terms freeman
and freewoman in this definition are meant, not only that they are free and not
slaves, but also that they are clear of all bars to a lawful marriage....

1. To make a valid marriage, the parties must be willing to contract, Able to
contract, and have actually contracted. 

   a. They must be willing to contract. Those persons, therefore, who have no
legal capacity in point of intellect, to make a contract, cannot legally marry,
as idiots, lunatics, and infant; males under the age of fourteen, and females
under the age of twelve, and when minors over those ages marry, they must have
the consent of their parents or guardians. 

   There is no will when the person is mistaken in the party whom he intended to
marry; as, if Peter intending to marry Maria, through error or mistake of
person, in fact marries Eliza; but an error in the fortune, as if a man marries
a woman whom he believes to be rich, and he finds her to be poor; or in the
quality, as if he marry a woman whom he took to be chaste, and whom he finds of
an opposite character, this does not invalidate the marriage, because in these
cases the error is only of some quality or accident, and not in the person....

   When the marriage is obtained by force or fraud, it is clear that there is no
consent; it is, therefore, void ab initio, and may be treated as null by every
court in which its validity may incidentally be called in question....

   b. Generally, all persons who are of sound mind, and have arrived to years of
maturity, are able to contract marriage. To this general rule, however, there
are many exceptions, among which the following may be enumerated. 

   (1) The previous marriage of the party to another person who is still living. 

   (2) Consanguinity, or affinity between the parties within the prohibited
degree. It seems that persons in the descending or ascending line, however
remote from each other, cannot lawfully marry; such marriages are against
nature; but when we come to consider collaterals, it is not so easy to fix the
forbidden degrees, by clear and established principles.... In several of the
United States, marriages within the limited degrees are made void by statute....

   (3) Impotency, (q.v.) which must have existed at the time of the marriage,
and be incurable....

   (4) Adultery. By statutory provision in Pennsylvania, when a person is
convicted of adultery with another person, or is divorced from her husband, or
his wife, he or she cannot afterwards marry the partner of his or her guilt.
This provision is copied from the civil law.... And the same provision exists in
the French code civil....

   c.  The parties must not only be willing and able, but must have actually
contracted in due form of law. 

2. The common law requires no particular ceremony to the valid celebration of
marriage. The consent of the parties is all that is necessary, and as marriage
is said to be a contract jure gentium, that consent is all that is needful by
natural or public law. If the contract be made per verba de presenti, or if made
per verba de futuro, and followed by consummation, it amounts to a valid
marriage, and which the parties cannot dissolve, if otherwise competent; it is
not necessary that a clergyman should be present to give validity to the
marriage; the consent of the parties may be declared before a magistrate, or
simply before witnesses; or subsequently confessed or acknowledged, or the
marriage may even be inferred from continual cohabitation, and reputation as
husband and wife, except in cases of civil actions for adultery, or public
prosecutions for bigamy.... But a promise to marry at a future time, cannot, by
any process of law, be converted into a marriage, though the breach of such
promise will be the foundation of an action for damages. 

3. In some of the states, statutory regulations have been made on this subject.
In Maine and Massachusetts, the marriage must be made in the presence, and with
the assent of a magistrate, or a stated or ordained minister of the gospel....
The statute of Connecticut on this subject, requires the marriage to be
celebrated by a clergyman or magistrate, and requires the previous publication
of the intention of marriage, and the consent of parents; it inflicts a penalty
on those who disobey its regulations. The marriage, however, would probably be
considered valid, although the regulations of the statutes had not been
observed.... The rule in Pennsylvania is, that the marriage is valid, although
the directions of the statute have not been observed.... The same rule probably
obtains in New Jersey ... and Kentucky.... In Louisiana, a license must be
obtained from the parish judge of the parish in which at least one of the
parties is domiciliated, and the marriage must be celebrated before a priest or
minister of a religious sect, or an authorized justice of the peace; it must be
celebrated in the presence of three witnesses of full age, and an act must be
made of the celebration, signed by the person who celebrated the marriage, by
the parties and the witnesses.... The 89th article of the Code declares, that
such marriages only are recognized by law, as are contracted and solemnized
according to the rules which it prescribes. But the Code does not declare null a
marriage not preceded by a license, and not evidenced by an act signed by a
certain number of witnesses and the parties, nor does it make such an act
exclusive evidence of the marriage. The laws relating to forms and ceremonies
are directory to those who are authorized to celebrate marriage....

4. A marriage made in a foreign country, if good there, would, in general, be
held good in this country, unless when it would work injustice, or be contra
bonos mores, or be repugnant to the settled principles and policy of our
laws....

5. Marriage is a contract intended in its origin to endure till the death of one
of the contracting parties. It is dissolved by death or divorce. 

6. In some cases, as in prosecutions for bigamy, by the common law, an actual
marriage must be proved in order to convict the accused.... This rule is much
qualified.

7. But for many purposes it may be proved by circumstances; for example,
cohabitation; acknowledgment by the parties themselves that they were married;
their reception as such by their friends and relations; their correspondence, on
being casually separated, addressing each other as man and wife ... declaring,
deliberately, that the marriage took place in a foreign country ... describing
their children, in parish registers of baptism, as their legitimate offspring
... or when the parties pass for husband and wife by common reputation ... After
their death, the presumption is generally conclusive....

8. The civil effects of marriage are the following: 

   a. It confirms all matrimonial agreements between the parties. 

   b. It vests in the husband all the personal property of the wife, that which
is in possession absolutely, and choses in action, upon the condition that he
shall reduce them to possession; it also vests in the husband right to manage
the real estate of the wife, and enjoy the profits arising from it during their
joint lives, and after her death, an estate by the curtesy when a child has been
born. It vests in the wife after the husband's death, an estate in dower in the
husband's lands, and a right to a certain part of his personal estate, when he
dies intestate. In some states, the wife now retains her separate property by
statute. 

   c. It creates the civil affinity which each contracts towards the relations
of the other. 

   d. It gives the husband marital authority over the person of his wife. 

   e. The wife acquires thereby the name of her husband, as they are considered
as but one, of which he is the head: erunt duo in carne una. 

   f. In general, the wife follows the condition of her husband. 

   g. The wife, on her marriage, loses her domicil and gains that of her
husband. 

   h. One of the effects of marriage is to give paternal power over the issue. 

   i. The children acquire the domicil of their father.

   j. It gives to the children who are the fruits of the marriage, the rights of
kindred not only with the father and mother, but all their kin. 

   k. It makes all the issue legitimate.

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