Chapter the fifteenth.
Of HUSBAND and WIFE.
THE ſecond private relation of perſons is that of marriage, which includes the reciprocal rights and duties of huſband and wife; or, as moſt of our elder law books call them, of baron and feme. In the conſideration of which I ſhall in the firſt place enquire, how marriages may be contracted or made; ſhall next point out the manner in which they may be diſſolved; and ſhall, laſtly, take a view of the legal effects and conſequence of marriage.
I. Our law conſiders marriage in no other light than as a civil contract. The holineſs of the matrimonial ſtate is left entirely to the eccleſiaſtical law: the temporal courts not having juriſdiction to conſider unlawful marriage as a ſin, but merely as a civil inconvenience. The puniſhment therefore, or annulling, of inceſtuous or other unſcriptural marriages, is the province of the ſpiritual courts; which act pro ſalute animae[1]. And, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all caſes, where the parties at the time of making it were, in the firſt place, willing to contract; ſecondly, able to contract; and, laſtly, actually did contract, in the proper forms and ſolemnities required by law.
- ↑ Salk. 121.
