John C. Wright (johncwright) wrote,
John C. Wright
johncwright

The Definition of Marriage

Reading many of the comments in two recent posts on the topic of matrimony, I was disappointed and surprised to see the number of comments which called into question the definition of marriage; yet not a single post I saw made reference either to a dictionary (to discover the common meaning), or to a law dictionary (to discover the legal definition). Perhaps there was a post there that I missed.

If you don't know what a word means, you don't make it up, you look it up.

If you want to invent a new word, or use an old word in a specific way for the sake of argument, then you use the phrase, "Let us for the sake of argument take the word x to mean y" or something to that effect. That phrase tells unwary readers you are not using the real word, but merely making an invention of your own, in order to pursue clarity, or, if your motives are less than pure, to achieve a rhetorical advantage over your opposition.

Not a single post I saw introduced a new and more precise definition of marriage for the sake of argument. Perhaps there was a post there that I missed.

I am not sure how to explain this oddity.

One possibility is asking the definition of marriage was what we might call a "substitute question" where the questioner asks one question but really means another.

The other possibility is that the questioner holds to a subjectivist epistemology, and tacitly assumes that any "definition" that does not compel universal assent is invalid; and such a view might also tacitly assume that there are no grounds, aside from personal preference, or whim, for assenting to a definition, so that in effect, asking "what is the definition?" is a rhetorical question, actually a statement that there is and can be no definition, because definitions do not exist.

My suspicions are provoked only because I cannot imagine such a discussion centered around asking the definition of a contract, for example, or the definition of negligence, or tort, or reality, or will, or trespass. These all have common or have legal definitions.

The words mean what their definitions, their bounds, say they mean, and the words do not mean the opposite of what they mean, or everything, or nothing, or what-you-please.

Some words are ambiguous, because we use the same word for several different meanings (I both cleave to my wife and cleave with my cutlass, for example) but this is mere puns (what used to be called "quibbles") and it behooves us if we fear ambiguity to say which of several meanings is meant. But this does not mean words mean nothing at all, or everything, or nonsense, or what-you-please. Perhaps the suspicions are narrow souled of me --- I can understand why an innocent young scholar might be deceived by a dishonest philosophy, and even if I think the young one honest, I cannot call the philosophy honest.

This is speculation on my part. I really don't understand the course of the conversation. The word "marriage" when used in English means when the context of the English language (and therefore of the English law and custom and culture) has always taken it to mean.

What does marriage mean? Allow me to quote at length from Bouvier's INSTITUTES OF AMERICAN LAW starting at page 59.

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Marriage is 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 unless it shall be lawfully dissolved within that time in the union which ought to exist between husband and wife for the purpose of perpetuating their species to assist each other and to share a common destiny as to the good or evil which shall happen to them By the terms free man and free woman here used are meant not only that they are free and not slaves but also that they are clear of all bars to a lawful marriage.

Every person may contract marriage unless prevented by some legal bar or some cause which forbids such marriage These bars to marriage may be arranged into the following classes:

* Want of competent age
* Want of consent
* A former marriage subsisting
* Consanguinity or affinity
* Want of consent of parents
* Civil death
* Crime of adultery.

The end of marriage is the procreation of children and the propagation of the species.

Before arriving at puberty persons are by nature incapable of contracting a lawful marriage because they do not possess these qualities. But the age of puberty varies according to climate and circumstances and a general rule must exist to establish this period The Roman and canon law fix it in males at fourteen and in females at twelve years of age. This rule has been adopted by the common law If therefore a boy under fourteen and a girl under twelve years marry this marriage is inchoate and imperfect and may be avoided by them on attaining their respective ages. A continued cohabitation after both parties have arrived at the age of consent is a confirmation of the marriage.

The consent of the contracting parties and not cohabitation form the essence of marriage. Nuptias consensus non concubitus facit. If there is no consent when there is only an appearance of it the contract is null and may be so declared by a competent tribunal. When for example there is a want of reason constraint or duress mistake or fraud or fraud on account of impotency.

The want of reason renders the party absolutely incapable of giving his consent to a marriage and makes the contract invalid. But a man becoming insane afterward does not destroy the marriage which was legal when made. If the party is insane from delirium tremens or is intoxicated at the time the marriage is void

The same degree of reason is required to contract a valid marriage as is required in other contracts as deeds or wills.

When there has been actual or physical constraint as where a woman is taken and carried away against her will and violence has been used and continues at the time of the ceremony it is evident there was no consent and therefore the marriage may be annulled by her.

But the constraint may simply be moral and concealed the body may be free but the mind constrained. This constraint may arise from bad treatment or anterior threats and the fear which is the consequence may determine a woman against her will to declare that she consents. This is a consent only in appearance. If the violence amounts to duress the marriage will be void but if the threats are not of this nature although perhaps the marriage cannot be declared null on that ground yet evidence of such acts it is presumed would be evidence of fraud and on this ground the marriage might be declared void.

Reverential fear such as that of displeasing a passionate father is not sufficient to cause the marriage to be annulled There must be an actual and present fear JHelum prœsentem esse oporlet non suspicionem infet endi e ue

The constraint too must have had the marriage for its object. For example a powerful and violent neighbor threatens you with death to appease him you offer him your daughter in marriage and she consents to marry him to save your life the marriage would not be null for want of consent because the threats had nothing to do with the proposed marriage.

When any contract is made and the subject matter of such contract is mistaken by one of the parties in consequence of the fraud of the other as if a man professing to sell me paint shows me an article which has all that appearance and in consequence of his fraud in concealing its true character I am deceived and instead of paint he sells me an article which is not paint I may avoid the sale.

So there is no valid consent if intending to marry Mary, I marry Sarah through the concealment or the fraud of the latter It is almost impossible to give an example of a marriage where in modern times there has been a physical mistake as to the person yet a case has been recorded where it occurred.

An error of this kind can scarcely fall on any thing except the moral or social condition of the person. It may be observed generally that when the error falls only on some advantages of fortune or some moral qualities of the party it is no cause for annulling the marriage as if believing Mary to be rich and virtuous I married her and afterward ascertained she was poor and vicious the marriage would still be good.

By impotence is meant the incapacity for copulation or propagating the species It has been used synonymously with sterility Impotence is curable or incurable when it is curable it is no cause either for declaring the marriage null or for a divorce when it is incurable it may be good cause for a divorce but the marriage is not for that cause void ab initio.

A subsisting marriage is a complete bar to a new one. The person who would marry a second time pending the first marriage would be guilty of bigamy and punishable criminally as such unless he or she proved that the second marriage was contracted in good faith. This takes place when the husband or wife has been absent for seven years without being heard from as has already been observed.
But as the marriage cannot be dissolved by mere absence the second marriage will be declared null and void ab initio the absence merelv purges the felony. The code of Louisiana distinguishes between acknowledged natural children and adulterine children the latter not being allowed to take as legatees Where a second bigamous marriage is made in ignorance of the bigamy and in good faith the issue of such marriage may take as legitimate.

Consanguinity or kindred is the relation subsisting among all the different persons descending from the same stock or common ancestor.

In general the consent of parents is not required in order to give validity to a marriage In some states there are provisions giving a right to the father to sue for a penalty the clergyman or magistrate who shall marry his minor child.

A person who is civilly dead having no capacity to make a contract of course cannot marry.

By the Roman law which has been adopted in some of the United States a person who had committed adultery and for this cause was divorced at the suit of the innocent party could not afterward marry the partner of his or her guilt. But if to evade the law he is married in a state where such marriage is valid and he returns to his own state the marriage cannot be impeached on that ground.
Marriage being but a civil contract it may be entered into by the common law before a magistrate a clergyman or simply before witnesses It is not indispensable that a clergyman should be present. Among some of the religious sects the Quakers for example the only persons present are the witnesses who are generally the guests at the wedding. In most of the states certain persons have been designated who are authorized to marry.

No particular form is requisite but the parties must take each other for husband and wife in the present tense The consent of the parties is all that is requisite and as marriage is a contract jure gentium that consent is all that is needful by natural or public law If the contract be made per verba de presenil though not consummated by cohabitation or if made per verba de futuro and followed by consummation it will be a good marriage unless prohibited by positive regulations to the contrary.

A promise to marry at a future time cannot be construed into a marriage though it may afford an action for its breach.

As a general rule a marriage which is valid by the law of the place where it is celebrated is good everywhere if invalid there it is invalid everywhere marriage.

The husband is bound to receive his wife at his home and treat her there as a husband should do that is furnish her with all the necessaries and conveniences which his fortune enables him to do and which her situation requires but this does not include such luxuries as according to her fancy she deems necessaries

By the term necessaries is meant all such things as are proper and requisite for the sustenance of man. Whenever the husband by his misconduct has obliged his wife to take up necessary things on credit he must pay for them, though he may have previously warned the tradesman not to trust her; but if her own misbehavior has reduced her to want he cannot be charged, unless the things furnished other than the necessaries of life are not sent back when he has it in his power to return them although he may not then be living with her.

It is his duty to love his wife and to bear with her faults and if possible by mild means to correct them and he is required to fulfil towards her his marital promise of fidelity and can therefore have no carnal connection with any other woman without a violation of his obligations.


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THAT is marriage. That is the definition. This is not a matter of opinion: it is settled.

Those of you are who competent to have an opinion as to whether Bouvier constitutes an authority may judge for yourself; those of you who are not must trust those who are. Alien as it may sound in our egalitarian age, not all opinions are created equal, for the creator of opinions is mortal, and prone to error.

Those who reject the authority of this jurist, or of the law he cites, must give grounds for the rejection. Your mere opinion or preference is not enough.

Now, those who would like to revise the definition have to give some warrant for the change, and say by what authority the change can be made.

Merely pretending that marriage does not exist, has no definition, has never existed, or is surrounded by an indissoluble fog of confusion is a weak argument.
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