Marriage

Comprehending laws and contracts is impossible, unless we first learn the meaning of the words and phrases they contain.

Moderator: notmartha

User avatar
editor
Site Admin
Posts: 688
Joined: Thu Feb 21, 2013 9:24 am
Contact:

Marriage

Post by editor » Sat Jun 27, 2015 9:07 pm

From Black's Law Dictionary, Sixth Edition:
Marriage. Legal union of one man and one woman as husband and wife. Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187, 1193. Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex. A contract, mutually engage with each other to live their whole lives (or until divorced) together in state of union which ought to exist between a husband and wife. The word also signifies the act, ceremony, or formal proceeding by which persons take each other for husband and wife.
From Bouvier's, 1856:
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. Bye 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. Dig. 23, 2, 1; Ayl. Parer. 359; Stair, Inst. tit. 4, s. 1; Shelford on Mar. and Div. c. 1, s. 1.
From Jones' Blackstone (Commentaries on the Laws of England, by Sir William Blackstone, KT.)
§ 582. Marriage.—The second private relation of persons is that of marriage, which includes the reciprocal rights and duties of husband and wife ; 1 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 inquire, 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.

§ 533. 1. Marriage, a civil contract—a. Ecclesiastical jurisdiction over marriage.—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 animæ (for the welfare of the soul). 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.

§ 584. b. Consent of the parties. First, they must be willing to contract. "Consensus non concubitus, facit nuptias (Consent, not cohabitation, makes the marriage)," is the maxim of the civil law in this case:b and it is adopted by the common lawyers,0 who indeed have borrowed (especially in ancient times) almost all their notions of the legitimacy of marriage from the canon and civil laws.

§ 585. c. Capacity of the parties.—Secondly, they must be able to contract. In general, all persons are able to contract themselves in marriage, unless they labor under some particular disabilities, and incapacities. What those are, it will here be our business to inquire.

§ 586. (1) Disabilities — (a) Canonical disabilities. — Now, these disabilities are of two sorts : first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court ; but these in our law only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained. Of this nature are pre-contract ; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular
corporal infirmities. And these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence: it therefore being sinful in the persons, who labor under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate 's coercion ; in order to separate the offenders, and inflict penance for the offense, pro salute animarum (for the welfare of their souls). But such marriages not being void ab initio (from the beginning), but voidable only by sentence of separation, they
are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not suffer the spiritual court to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties. And therefore when a man had married his first wife's sister, and after her death the bishop's court was proceeding to annul the marriage and bastardize the issue, the court of king's bench granted a prohibition quoad hoc (as to this) ; but permitted
them to proceed to punish the husband for incest. These canonical disabilities being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII, c. 38 (Marriage, 1540), it is declared, that all persons may law fully marry, but such as are prohibited by God's law; and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowledge, and fruit of children, shall be indissoluble. And (because in the times of popery a great variety of degrees of kindred were made impediments to marriage, which impediments might, however, be bought off for money) it is declared by the same statute, that nothing (God's law except) shall impeach any marriage, but within the Levitical degrees; the furthest of which is that between uncle arid niece.' By the same statute all impediments, arising from pre-contracts to other persons, were abolished and declared of none effect, unless they had been consummated with bodily knowledge : in which case the canon law holds such contract to be a marriage de facto. But this branch of the statute was repealed by statute 2 & 3 Edw. VI, c. 23 (Mar
riage, 1548). How far the act of 26 Geo. II, c. 33 (Clandestine Marriages, 1753), (which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract) may collaterally extend to revive this clause of Henry VIII 's statute, and abolish the impediment of pre-contract, I leave to be considered by the canonists.

§ 587. (b) Civil disabilities.—The other sort of disabilities are those which are created, or at least enforced, by the municipal § 587. (b) Civil disabilities.—The other sort of disabilities are those which are created, or at least enforced, by the municipal...
I've got a lot more information on this, particularly from Jones' Blackstone and, of course, Holy Scripture. I will expand if readers request it. Notice in all of the above, the liberal sprinkling of the word "person". Much about the jurisdictional divide between civil and ecclesiastical law, and yet civil law recognizes disabilities which run contrary to God's Law.

In spite of all historical precedent, in the United States, the definition of marriage now apparently includes: "A loosely defined special partnership between two or more persons, given certain special protections under the law (for now)," and perhaps even "Whatever Obama wants it to mean." However, I would caution that words, just like weights and measures, ought to have fixed meanings and not be corrupted.
--
Editor
Lawfulpath.com
User avatar
notmartha
Posts: 751
Joined: Mon Jul 22, 2013 1:16 pm

Re: Marriage

Post by notmartha » Sat Jun 27, 2015 11:28 pm

Webster’s 1828
MAR'RIAGE, noun [Latin mas, maris.] The act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life. marriage is a contract both civil and religious, by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. marriage was instituted by God himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children.
Marriage is honorable in all and the bed undefiled. Hebrews 13:4
1. A feast made on the occasion of a marriage
The kingdom of heaven is like a certain king, who made a marriage for his son. Matthew 22:2.
2. In a scriptural sense, the union between Christ and his church by the covenant of grace. Revelation 19:7.

MAR'RIAGEABLE, adjective Of an age suitable for marriage; fit to be married. Young persons are marriageable at an earlier age in warm climates than in cold.
1. Capable of union.

MAR'RIAGE-ARTICLES, noun Contract or agreement on which a marriage is founded.
User avatar
notmartha
Posts: 751
Joined: Mon Jul 22, 2013 1:16 pm

Re: Marriage

Post by notmartha » Mon Jun 29, 2015 1:28 pm

Is sodomy defined in Blackstones? In Bouvier's and Blacks it is said that the very act was severely punished under law, therefore even a civil marriage could not recognize what was otherwise unlawful.
User avatar
editor
Site Admin
Posts: 688
Joined: Thu Feb 21, 2013 9:24 am
Contact:

Re: Marriage

Post by editor » Tue Jun 30, 2015 7:56 am

From Commentaries on the Laws of England, by Sir William Blackstone, KT., edited by William Carey Jones, Book III, Chapter XIII (a/k/a Jones' Blackstone, Book 2):
§ 250. 4. Crime against nature. —What has been here observed, especially with regard to the manner of proof, which ought to be the more clear in proportion as the crime is the more detestable, may be applied to another offense, of a still deeper malignity : the infamous crime against nature, committed either with man or beast. A crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offense of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out; for, if false, it deserves a punishment inferior only to that of the crime itself.

I will not act so disagreeable a part to my readers as well as myself as to dwell any longer upon a subject the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be named ; "peccatum illud horribile, inter christianos non nominandum (that horrible crime not to be named among Christians)." A taciturnity observed
likewise by the edict of Constantius and Constans;1 "ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis pcenis subdantur infames, qui sunt, vel qui futuri sunt rei (where that crime is found, which it is unfit even to know, we command the law to arise armed with an avenging sword, that the infamous men who are, or shall in future be guilty of it, may undergo the most severe punishments)." Which leads me to add a word concerning its punishment.

This the voice of nature and of reason, and the express law of God, determine to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by tire from Heaven ; so that this is an universal, not merely a provincial, precept. And our ancient law in some degree imitated this punishment, by commanding such miscreants to be burnt to death," though Fleta says they should be buried alive: either of which punishments was indifferently used for this crime among the ancient Goths. But now the general punishment of all felonies is the same, namely, by hanging, and this offense (being in the times of popery only subject to ecclesiastical censures) was made felony without benefit of clergy by statute 25 Henry VIII, c. 6 (Buggery, 1533), revived and confirmed by 5 Elizabeth, c. 17 (Sodomy, 1562). And the rule of law herein is, that, if both are arrived at years of discretion, agentes et consentientes pari pcena plectantur (the perpetrator and consenting party are both liable to the same punishment).

These are all the felonious offenses more immediately against the personal security of the subject. The inferior offenses, or misdemeanors, that fall under this head are assaults, batteries, wounding, false imprisonment and kidnapping.
--
Editor
Lawfulpath.com
User avatar
notmartha
Posts: 751
Joined: Mon Jul 22, 2013 1:16 pm

Re: Marriage

Post by notmartha » Sat Jul 11, 2015 12:18 pm

Since 1996,1 U.S. Code § 7 - Meanings of “marriage” and “spouse” has read:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
In 2013, SCOTUS deemed in UNITED STATES v. WINDSOR that the above meaning was unconstitutional.

In February 2015, a new meaning was introduced:
`For purposes of determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, as applied with respect to individuals domiciled in a State or in any other territory or possession of the United States, the term `marriage' shall not include any relationship which that State, territory, or possession does not recognize as a marriage , and the term `spouse' shall not include an individual who is a party to a relationship that is not recognized as a marriage by that State, territory, or possession.'.
In June 2015, SCOTUS deemed in OBERGEFELL v. HODGES that:
same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
And now...

Democrats propose legislation to eliminate words 'husband,' 'wife' from federal law

7/9/2015 by Pete Kasperowicz

From HERE.
More than two dozen Democrats have proposed legislation that would eliminate the words "husband" and "wife" from federal law.

Those "gendered terms" would be replaced by "gender-neutral" words like "spouse" or "married couple," according to the bill from Rep. Lois Capps, D-Calif.

"The Amend the Code for Marriage Equality Act recognizes that the words in our laws have [SPECIAL] meaning and can continue to reflect prejudice and discrimination even when rendered null by our highest courts," Capps said. "Our values as a country are reflected in our laws. I authored this bill because it is imperative that our federal code reflect the equality of all marriages."

The Supreme Court ruled in June that the 14th Amendment to the Constitution means all states have to license same-sex marriages, a ruling that effectively ended the same-sex marriage debate in America. Capps said her bill was aimed at taking the next step, which is to ensure the United States Code "reflects the equality of all marriages."

She said her bill would also have other benefits if it became law. In one example, she noted that U.S. law says it's illegal to threaten the president's wife, but says nothing about the president's husband.

"Capps' bill would update the code to make it illegal to threaten the president's spouse," her office said.

Capps might also be thinking of Democratic presidential candidate Hillary Clinton, who still seems like a lock to win the Democratic nomination. If she were to win the White House, former President Bill Clinton would become what some have suggested might be called the "first spouse."
You can read the bill HERE.

All references to "husband" and/or "wife" will be changed to "spouse", "person", "married couple", "individual", etc.

Aren't Terms of Art just grand? :roll:
User avatar
editor
Site Admin
Posts: 688
Joined: Thu Feb 21, 2013 9:24 am
Contact:

Re: Marriage

Post by editor » Wed Jul 22, 2015 4:26 am

Notmartha,

When I first read your post, it sounded like duckspeak, but now that I've had time to think about it, bellyfeel tells me this is a simple case of blackwhite. To think otherwise would be crimethink.

https://en.wikipedia.org/wiki/List_of_Newspeak_words
--
Editor
Lawfulpath.com
User avatar
notmartha
Posts: 751
Joined: Mon Jul 22, 2013 1:16 pm

Re: Marriage

Post by notmartha » Wed Jul 22, 2015 2:12 pm

:lol:

Shhhh....you don't want the thinkpol to vaporize you...

The whole thing makes me feel doubleplusungood...

Couldn't find a newspeak word for nauseous. You'd think with all the gin flowing so freely there would be one...
User avatar
notmartha
Posts: 751
Joined: Mon Jul 22, 2013 1:16 pm

Re: Marriage

Post by notmartha » Fri Oct 23, 2015 1:01 pm

How does this work???

From HERE:
WASHINGTON (AP) — The IRS is making it official: The tax agency says it will now recognize same-sex marriages regardless of where they were performed.

The IRS and the Treasury Department also said they will interpret the terms "husband" and "wife" to apply to same-sex spouses as well as opposite-sex spouses.

The IRS proposed the regulations Wednesday to implement the Supreme Court's decision in June legalizing same-sex marriages in every state.
So will it be "husband 1" and "husband 2" or "wife 1" and "wife 2"? A little too Cat in the Hat-ish... And someone is bound to get upset about being in number 2 position. And they better add a box for "other" as to not discriminate... :roll:
User avatar
editor
Site Admin
Posts: 688
Joined: Thu Feb 21, 2013 9:24 am
Contact:

Re: Marriage

Post by editor » Sat Nov 07, 2015 10:42 pm

That's my understanding of the word "progressive", just as cancer is progressive, in the sense that it cannot be satisfied until it has completely consumed the host organism.

There is no satisfying this sort of mentality. As soon as the IRS changes the wording on its forms to gender neutral, the progressives will insist the existing wording discriminates against people who identify with both genders.

I was not surprised to read an article a few months ago about the star of the reality show Sister Wives, suing (either the State of Utah, or a Utah county) for damages based on discrimination carried out against him and his sister wives. His position is that if gay marriages are okay then so should be polygamist marriages.

I personally agree with his point, and I've been expecting someone to make it for some time. In the end, we'll have co-op marriages composed of groups of dozens of people of all nebulous genders.

The only real problem is how will the IRS construct their forms, without offending someone?
--
Editor
Lawfulpath.com
User avatar
notmartha
Posts: 751
Joined: Mon Jul 22, 2013 1:16 pm

Re: Marriage

Post by notmartha » Sun Sep 11, 2016 3:56 pm

Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States, vol. 2, John Joseph Lalor, 1881
MARRIAGE. Marriage has been defined by a celebrated modern jurist: "The association of man and woman, who unite to perpetuate their species, to mutually help one another to bear the burdens of life, and to share a common destiny."

—This great institution, the first foundation of civilization, may be considered from very different points of view. The continuation of the human species, the satisfaction of its most powerful passion, moral affinity consecrated by religion, the union of civil and family interests, sometimes even of political interests, when there is question of persons of elevated rank whose august and at the same time grave mission it is to unite in themselves part of the destinies of nations, such are some of the elements which belong to the institution of marriage and are developed by it in different degrees, according to times and circumstances.—"Philosophers," says Portalis, "consider in this act principally the union of the two sexes; jurists see in it only the civil contract, and canonists only the sacrament, or what they call the ecclesiastical contract." Let us, in our turn, endeavor to show in a few words the no less important part that political economy should claim in the study of this contract, which forms in some sort the corner stone of human society, and in which it is easy to recognize, at the same time, the principle of population, the support of property, the stimulant of production, and the principal means of the preservation and transmission of wealth.

—We can find no instance in history of a people who attained any considerable development that allowed a promiscuous intermingling of the sexes. Common and constant experience shows the relative sterility of libertinism, while at the same time it proves its wretched and abandoned fruits to be much more subject to early death than those of lawful unions. Distaste for marriage has even imperiled nations which had reached quite a high degree of civilization; and the history of Rome, at the fall of the republic, presents the sight of a city the mistress of the world, threatened by her own population with wars, proscriptions and contempt for the institution that was intended to recruit her families and support the state.

—In our day a contrary danger has, undoubtedly, preoccupied the minds of a great many economists. In our society, formed under the influences of Christianity and rich in its traditions, the inconsiderate increase of population has been considered a source of dread; legislators no longer apply themselves, like those of Rome and ancient France, to encourage marriage; on the contrary, they have sometimes thought of restraining it; the number of marriages even seems to have decreased. But the very fears of some economists of our day who devote their attention especially to the restricted society of old Europe, themselves prove full well the beneficent power of an institution which, when applied to the whole world, is still so far from having achieved its work of extending and propagating the human species.

—Marriage, which peoples the earth, also confers upon each of its parts that reign of individuality which constitutes property. Want and personal foresight, which are the generative principles of appropriation, in reality acquire their full intensity only in heredity, which extends the view of the possessor beyond the term of his present existence. Marriage alone, then, gives to the principle of appropriation the full latitude of its horizon. It is marriage which, by the urgent and tender incentive of heredity, develops man's individual property; it is marriage which transforms this property into patrimony, and furnishes the most salutary and efficacious stimulant to the production of wealth. Thus the accumulated work of generations, in the different branches of human activity, every day enlarges the majestic basis of civilization in the world.

—History frequently confirms, by striking coincidences, this remarkable solidarity between the institution of marriage and that of property, of which theory affords us but a passing glimpse. Sparta, for example, wished to submit the union of the sexes to the direction of the state, and thus reduce this sacred union, so nobly styled by a Roman jurist the communication of the divine and human law * * *, to a mere pairing of animals. The Doric city at the same time included property in the agrarian distribution made by Lycurgus. Conjugal faith, the law of paternity, the sentiment of individual property, were destined to be confounded in Lacedemonia in one same sacrifice.

—Mark the economy of these great institutions upon which humanity rests. Marriage, which founds property upon the family which it creates, is at the same time eminently fitted, by the fruitful union of the different faculties which it unites, to procure the preservation of the patrimony which it has acquired. The physical strength of man, the ingenious and assiduous care of his companion, present in the preservation of the goods of the family, not less than in the education of the children, a first application of that division of labor which is justly brought forward by political economy as one of the most powerful means of progress in human activity.

—The intimate harmony which exists between the institution of marriage and the institution of property has been frequently manifested also by the comparison of the laws relative to inheritance with those which regulated, in such, different manner, the conditions of conjugal union and the prohibitions with which different legislators have surrounded it. "When a legislator," says Portalis, "had established a certain order of succession the observance of which he considered important for the political constitution of the state, he so regulated marriage that it was never allowed between persons whose union could disturb or alter this order; we find examples of this solicitude in some of the republics of ancient Greece." A law of Athens, for example, allowed a man to marry his half-sister on his father's side, but not his half-sister on his mother's side, in order to prevent the union under one owner of two estates, and consequently of two inheritances.

—Marriage, besides, has not attained everywhere the same economic and moral dignity which it possesses in our modern Christian society. This great institution may be found in the world under two entirely distinct forms, which mark one of the principal divisions in the history of civilization.

—Monogamy, which is in our eyes the perfect type of marriage, puts man and woman on an equality, in so far as their moral and physical differences will permit. It was, however, but rarely met with in antiquity as a general and obligatory institution, although the appreciation of its perfection was from the earliest ages acknowledged by many legal enactments. In this respect, as in many others, Roman civilization justly lays claim to the honor of having in some sense prepared the way for the revolution which Christianity completed in the world, and of having powerfully contributed to inaugurate, by the elevated morality of its laws, the true principles of reason and of social progress. It may be truly said, on the other hand, that the indissolubility of marriage was established by Christianity alone, and that pagan Rome created a sort of permanent exception thereto by the institution of divorce.

—Polygamy, to consider it only under its most general form—that is, the form which allows a man several wives—by this very fact unwarrantably subjects the weaker sex to the caprice, fickleness and domination of the stronger.

—All the salutary effects of marriage are in part perverted by polygamy, which, however, was the general law of antiquity, and one which is still obeyed by half the world.

—The experience of Mohammedan countries proves that polygamy is unfavorable to population, and the Turkish historians themselves show that the Christian families in the Ottoman states are the most numerous. Moreover, the sole effect of polygamy is to concentrate and monopolize, to the advantage of a few, the union of the sexes, which are about equal in number. How can such an institution offer any advantages for the progress of population? If, after having invaded Europe, Mohammedanism has been driven back within the narrow limits of its first conquests, polygamy is one of the chief causes which must ever hold it bound and powerless.

—Polygamy does not establish a real family; it places between the children of a common father the influence of maternal rivalry, as a dire germ of inevitable discord. Property itself does not seem to attain its perfect form by the side of this system of conjugal union. With the wife but an uninterested slave, and the family destroyed, individual property seems shaken to its very foundation, and is absorbed, as is ordinarily the case in Mohammedan countries, in the sovereign domain of the head of the state. Human liberty, property and the dignity of the family can exist only by mutually sustaining each other. From an economic point of view, therefore, as well as from a moral standpoint, polygamy is a debasement of marriage, of which monogamy is the only normal and faithful expression. Side by side with the contract which unites their lives there are different forms of agreement regulating the interests of the man and woman joined by the conjugal tie.

—From universal community to absolute separation of goods there are numerous gradations admitted by law, which we do not propose to describe here in detail. The economist finds in the system of community of goods between husband and wife, marked advantages for commerce and the circulation of wealth; the moralist sees in it the wife elevated by a greater responsibility, and stimulated by an interest in the common prosperity of the household more positive than that resulting only from conjugal sympathy and maternal solicitude. The jurist, who is acquainted with the anxiety, the fitness, and sometimes with the sad experience of families, is less absolute in his preferences, and often refrains from applying to the circumstances and interests, which he would conciliate, the means necessary to secure the desired result for the sake of the end of marriage and the good of those interested in conjugal union.

—Such is the power of this great institution of marriage, that by the morality of the domestic hearth which it consecrates, by the principles of labor and economy which it propagates, by the spirit of property which it nourishes, by its influence over the destiny of the family which it is called upon to regulate, it is of interest everywhere to the progress of the world and the development of civilization.

Post Reply