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Diving into Blackstone Part Two

Updated on December 15, 2011

Of Marriage

I have been reading Blackstone's Commentaries , seeking legal advice from a few centuries gone. I cannot wholly enter Blackstone's century but I find some enjoyment in bringing him into mine. It makes his wig do a 360, but we manage.

Today's reading included a bit on the peers of England, commoners, the army, and the navy, as subjects of law. But it ended just a few moments ago with "Chapter the fifteenth, Of Husband and Wife", and it is this chapter that I found, in the glow of modern social politics and ferments, interesting. Here is what caught my attention:

"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 marriages 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…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."

How clear. How simple. How welcoming to the idea of such a civil contract existing between adults of the same sex, even though such a marriage would be unusual and given the temper of the times would not have been contracted in England, where sodomy laws were somewhat harsh.

But let us confine Blackstone to what he actually says, not what his society, riddled with its own vices and intolerance, would have done despite the soundness of law. Annulling a marriage belongs to the ecclesiastical courts, for an annulment is a declaration that a marriage did not occur, it is a cancellation of a completed act, as divorce is a dissolution of a completed contract, with attached penalties for he, or she, that transgressed the terms of the contract. There is no provision in law for the temporal court to declare a contract void for causes not related to the three elements of contract: a will to contract, an ability to do so, and the performance of the contract.

The will to make a marriage contract is encapsulated in the Latin, "Consensus, non concubitus, facit nuptias ": Consent, not sexual intercourse, makes the marriage. To marry someone requires more than that one sleeps with them. There must exist a will to form a partnership, to be a couple, and this will must exist in both contracting parties, not merely in one.

The ability to make a marriage contract is a bit more complex, but only a bit. The parties must be of age to have will and grant consent before the law. Four causes are presented by Blackstone as rendering a marriage void ab initio , preventing the union from having legal existence at all: polygamy, minority, the consent of a parent or guardian (where a party is still under the power of a parent or guardian), want of reason (idiots, lunatics). Also included in his explanation of the ability to make a marriage contract is the following: canonical disabilities which by ecclesiastical laws void the marriage in a canonical court, "in our law only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained". And the causes he mentions of this type are those of consanguanity, affinity, and "particular corporal infirmities", by which is meant impotence and infertility. Certainly, I think we can safely place homosexual marriage contracts under this heading of disabilities suitable to a canonical court, which in many Christian sects would result in such a contract being voided, should the couple choose to bring their contract to such a court for judgment.

Finally, the marriage must be performed in a manner fitting the civil procedure. There must be a judge and witnesses, certain words must be said, certain promises made. The contract must be enacted between the parties.

For far too long, people have been making far too much out of a private contract, citing, most often, loudly, and consistently, the interest of God in the contract of marriage. Trite "Adam and Eve, not Adam and Steve" phrases, and this is a tame little platitude, have been brought out to show through rhyming the superiority of their view of marriage contracts to the other man's. However, I think what Blackstone shows here is the way we should go as a nation. If it is God's concern, and we live in a country that had the model of ecclesiastic courts and chose not to build one, then we should abide by temporal standards, and let the separate churches abide by their own standards, of marriage. Are the parties willing?--no shotguns at the back involved. Are the parties able?--are they adults married at the moment to no one else and having use of their reason sufficient to form contracts? Can they follow the legal procedure required for the contract? Yes? then let it be done in the temporal court, as it would be done for anyone else, and they will be held to the contract they have made, just like anyone else.

It all seems so clear, and really a point upon which little debate should be wasted. What belongs to the church in a marriage, and this only in some marriages where the contracting parties are religious folk who want a religious ceremony, is left to the church. What is of the nature of a civil contract between two individuals is left to those two individuals, with judicial officials acting in their specified role.

I have been thinking far too much about this subject myself of late, and I think it is because I hear too much speech about it that is, when not simply hate, prejudice. That makes me angry. And I have been listening to our present crop of presidential candidates and their detractors lately, leading me to wonder, Is who marries who really so important? Is this a 'problem' screaming for solution, or just the raising of a scapegoat to focus our rage upon while the real problems in our nation continue to thrive? I understand that the refusal to allow an individual access to a civil contract on the basis of their color, gender, or sexual preference can be conceived as a violation of their civil rights. I do not see that allowing someone access to a civil contract is a violation of anyone's rights. I would rather think we as a nation have important issues on our plate, affecting all of us, and that we should put energy, time, and thought into those than that the marriage of two men, or two women, is God's crucial stumbling block on the path of democracy and freedom.

And now I am done, with the entire issue. I've given it too much space in my head already.


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