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Online Encyclopedia
Originally appearing in Volume V17, Page 754 of the 1911 Encyclopedia Britannica.
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MARRIAGE. Marriage (Fr. mariage, from marier, to marry; Lat. maritare, from mas, maris, a male), or " matrimony " (Lat. matrimonium, from. mater, a mother), may be defined either (a) as the act, ceremony, or process by which the legal relationship of husband and wife is constituted; or (b) as a physical, legal and moral union between man and woman in complete community of life for the establishment of a family.l It is possible to discriminate between three stages, taking marriage in the latter sense as an institution—the animal or physical stage, the proprietary or legal stage, and the personal' or moral stage. In the first or physical stage the relation of the sexes was unregulated, and in many cases of brief duration. In the second or legal stage greater permanence was secured in marriage by assigning the husband a property right in his wife or wives. In the last stage the proprietary relation falls more and more into the background, and the relation of husband and wife approximates that of two individuals entirely equal before the. law. Although in the history of marriage these three stages have been roughly successive, the order of their entering the conscious experience of the individual is usually the reverse of their order in the development.of the race; and in the solemnization of a marriage based upon affection and choice the growth of the relation begins with the moral, advances to the legal and ,culminates in the physical union, each one of these deriving its meaning and its worth from the preceding. In most legal systems marriage, in the sense of a ceremony, takes the form of a contract—the mutual assent of the parties being the prominent and indispensable feature. Whether it is really a contract or not, and if so to what class of contracts it belongs, are questions which have been much discussed, but into which it is not necessary to enter. While the consent of parties is universally deemed one of the conditions of a, legal marriage, all the incidents of the relationship constituted by the act are absolutely fixed by law. The jurist has to deal with marriage in so far as it creates the legal status of husband and wife. It should be added that, while marriage is generally spoken of by lawyers as a contract, its complete isolation from all other contracts is invariably recognized. Its peculiar position may be peen at once by comparing it with other contracts giving rise to continuous relationships with more or less indefinite obligations, like those of.landlord and tenant, master and servant, &c. In these the parties may in general make their rights and duties what they please, the law only intervening when they are silent, to marriage every resulting right and duty is fixed by the law. Besides true marriage, inferior forms of union have from time to time been recognized, and may be briefly noticed here. These have all but disappeared from modern society, depending as they do on matrimonial restrictions now obsolete. The institution of slavery is a fruitful source of this kind of de-based matrimony. In Roman law no slave could contract marriage whether with another slave or a free person. The union of male and female slaves (contubernium) was recognized for various purposes; a free woman entering into a union with a slave incurred under the S.C. Claudianum the forfeiture of her own liberty; but the bond-woman might be the concubine of a freeman. In the United States, where slavery was said to be regulated by the principle of the civil law, the marriage of slaves was so far recognized that on emancipation complete matrimony took effect and the children became legitimate without any new ceremony. In Roman law no legal marriage could be contracted unless there was connubium between the parties. Originally there was no connubium between plebs and patricians, and the privilege was conceded after a long struggle by the Lex Canuleia. In later times Latini and Peregrini were excluded from connubium except where the right had been expressly conferred. The great matrimonial law of the early empire (Lex Julia et Papia Poppaea) introduced restrictions depending on the condition of the parties which later legislation extended and perpetuated. Senators under that law were forbidden to marry freedwomen or women of inferior rank, and the husband of a freedwoman becoming a senator was set free from his marriage. In the canon law' new restrictions were developed. Persons who bound themselves not to marry were deemed incapable of marrying. The order of the clergy were forbidden to marry. And disparity of faith was recognized by the early church as a bar to matrimony, e.g. between Christians and pagans and between orthodox and heretics (see Dictionary of Christian Antiquities, art. " Marriage ").
End of Article: MARRIAGE

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