doug thomas
01-05-2004, 04:01 PM
For anyone who is interested in the argument over gay marriage, the first
question should be - Should gay persons be allowed the marriage rights that
straight persons had to fight 500 years for, or should they have to start
with the Council of Trent and fight forward, as probably they could do the
500 years of advances over say the next 50 to 100 years.
Here is a bit of background.
From Phipps v. Moore 1848 5 U.C.Q.B. 16
In Park on Dower, p. 7, the subject of marriage is thus introduced, "By the
ecclesiastical law as it stood previous to the Marriage Act, and as it still
stands as to cases falling within the exceptions of that act, the existence
of matrimony involved a two-fold consideration, comprising within that
general name the distinct facts of - 1st. The espousals or personal contract
between the parties to become husband and wife; and secondly, the
celebration of that contract in facie ecclesię. The espousals or matrimonial
contract (though requiring no set form or ceremonial) was the substance or
bond of the nuptial relation, and was of two kinds, viz., per verba de
pręsenti and per verba de futuro. The former of these, in the contemplation
of the ecclesiastical law, amounted to very matrimony. (Swinb. - ; Spousals,
9, 13, 15; see also 2 Sal. 437, 438; 6 Mod. 155; and judgment of Sir W.
Scott, in Dalrymple v. Dalrymple; Dodson's Rep. 1811, p. 13) the contract
being indissoluble by any agreement of the parties," &c.
42 But though espousals or affiance, as it is sometimes termed, was thus
the very substance of matrimony, yet it does not seem to have been allowed
that espousals alone, unaccompanied by celebration, should confer the civil
rights of dower or legitimacy, but to obtain these temporal advantages, it
was requisite that the contract of matrimony should be celebrated in the
face of the church. - Co. Litt. 32, 33 b.; and see other references ib. in
note.
(my editorial)
After the Council of Trent, persons were no longer able to go through a
common law marriage - that is a form of marriage pronounced to the community
and followed by cohabitation, and have that marriage considered a valid
legal marriage.
The result of that was to bastardize the children of the union, and make it
impossible for the wife and children to inherit from a deceased father on
his intestacy, if the parties were not married in a church.
Prior to and after the Council of Trent, a marriage whether entered into by
pronunciation to the community (per verba de praesenti) or by publication of
banns in the church, could not be terminated by agreement of the parties.
Anyone wanting to get back to the old form of marriage, and wanting to
exclude gay marriage, should be asking, do we want to go back to the
pre-Council of Trent - where we could have an indissoluble Union solely by
the words of the participants, followed by consummation (the old I' ll marry
you to get in your pants), or do we want to go to the post-Council of Trent
marriage - where you had to have a cooling off period, publish banns, have a
bachelor party, and get married in a Church prior to having a marriage for
life.
You will note that the concept of marriage has changed significantly in the
last four hundred years, with most of the liberalization happening in the
last 50 years. You will not hear any gay persons saying - give us that good
old marriage that was good enough for our great great grandparents - few gay
or straight actually want a marriage that is indissoluble - what they want
is what the straight community had to fight over the last 100 years for.
For those of you who noticed the expression "per verba in futuro" - or the
promise of marriage - I have a quote from an early 1960's breach of promise
case, as this was the only per verba in futuro case I could actually find.
from TSCHCHEIDSE v. TSCHCHEIDSE 1963 CarswellSask 5, 1 R.F.L. REP. 437, 41
D.L.R. (2d) 138
24 At the time of marriage the plaintiff was a young girl. She lived
with the defendant Tschcheidse for a period of 12 years believing him to be
her husband. She worked extremely hard and gave her husband all her
earnings. To my mind no monetary compensation can cure the deceit
perpetrated by her husband. I have found assistance from the following
excerpt by Denning L.J., in Shaw v. Shaw, [1954] 2 Q.B. 429 at 440, [1954] 2
All E.R. 638:
Every man who proposes marriage to a woman impliedly warrants that he is in
a position to marry her, and that he is not himself a married man; and he
reaffirms that warranty when he afterwards goes through a form of marriage
with her - whether in church or in a registry office. To take the familiar
words of the banns of marriage, he warrants that there is no 'cause or just
impediment' why he should not marry her. Every day of their married life he
continues the warranty; he warrants that their marriage was valid and that
there was no impediment to it.
25 The plaintiff will have judgment for $8,000 in damages and costs.
And for those of you who promise something to get your son married off to
his boyfriend beware of
Heichman v. National Trust [1920] 2 WWR 1012 wherein it was stated:
36 There is no doubt that the evidence as accepted by the Courts below
is to the effect that the appellant represented that his son was the owner
of the land and chattels in question. The law is that where upon proposals
of marriage third persons represent anything material in a light different
from the truth they shall be bound to make good the statement they make.
Montefiori v. Montefiori, 1 Wm. B1. 363, Mills v. Fox, 37 Ch. D. 153, at p.
162, 57 L.J. Ch. 56.
And Finally for those of you who were wondering about the effect of
illegitimacy on an action for seduction.
The natural father of a daugther born out of wedlock, could not bring an
action for seduction of his daughter, unless she was actually resident with
him at the time, as he had no claim as her natural father, but only for the
loss of her use as a servant, however he would have had a claim had she been
a legitimate daughter.
Biggs v. Burnham 1844 1 U.C.W.B. 106
This is just a bit of old law, which I hope shows that marriage is not and
has never been some static institution that is locked in time and place.
Doug Thomas
Welland, Ontario
question should be - Should gay persons be allowed the marriage rights that
straight persons had to fight 500 years for, or should they have to start
with the Council of Trent and fight forward, as probably they could do the
500 years of advances over say the next 50 to 100 years.
Here is a bit of background.
From Phipps v. Moore 1848 5 U.C.Q.B. 16
In Park on Dower, p. 7, the subject of marriage is thus introduced, "By the
ecclesiastical law as it stood previous to the Marriage Act, and as it still
stands as to cases falling within the exceptions of that act, the existence
of matrimony involved a two-fold consideration, comprising within that
general name the distinct facts of - 1st. The espousals or personal contract
between the parties to become husband and wife; and secondly, the
celebration of that contract in facie ecclesię. The espousals or matrimonial
contract (though requiring no set form or ceremonial) was the substance or
bond of the nuptial relation, and was of two kinds, viz., per verba de
pręsenti and per verba de futuro. The former of these, in the contemplation
of the ecclesiastical law, amounted to very matrimony. (Swinb. - ; Spousals,
9, 13, 15; see also 2 Sal. 437, 438; 6 Mod. 155; and judgment of Sir W.
Scott, in Dalrymple v. Dalrymple; Dodson's Rep. 1811, p. 13) the contract
being indissoluble by any agreement of the parties," &c.
42 But though espousals or affiance, as it is sometimes termed, was thus
the very substance of matrimony, yet it does not seem to have been allowed
that espousals alone, unaccompanied by celebration, should confer the civil
rights of dower or legitimacy, but to obtain these temporal advantages, it
was requisite that the contract of matrimony should be celebrated in the
face of the church. - Co. Litt. 32, 33 b.; and see other references ib. in
note.
(my editorial)
After the Council of Trent, persons were no longer able to go through a
common law marriage - that is a form of marriage pronounced to the community
and followed by cohabitation, and have that marriage considered a valid
legal marriage.
The result of that was to bastardize the children of the union, and make it
impossible for the wife and children to inherit from a deceased father on
his intestacy, if the parties were not married in a church.
Prior to and after the Council of Trent, a marriage whether entered into by
pronunciation to the community (per verba de praesenti) or by publication of
banns in the church, could not be terminated by agreement of the parties.
Anyone wanting to get back to the old form of marriage, and wanting to
exclude gay marriage, should be asking, do we want to go back to the
pre-Council of Trent - where we could have an indissoluble Union solely by
the words of the participants, followed by consummation (the old I' ll marry
you to get in your pants), or do we want to go to the post-Council of Trent
marriage - where you had to have a cooling off period, publish banns, have a
bachelor party, and get married in a Church prior to having a marriage for
life.
You will note that the concept of marriage has changed significantly in the
last four hundred years, with most of the liberalization happening in the
last 50 years. You will not hear any gay persons saying - give us that good
old marriage that was good enough for our great great grandparents - few gay
or straight actually want a marriage that is indissoluble - what they want
is what the straight community had to fight over the last 100 years for.
For those of you who noticed the expression "per verba in futuro" - or the
promise of marriage - I have a quote from an early 1960's breach of promise
case, as this was the only per verba in futuro case I could actually find.
from TSCHCHEIDSE v. TSCHCHEIDSE 1963 CarswellSask 5, 1 R.F.L. REP. 437, 41
D.L.R. (2d) 138
24 At the time of marriage the plaintiff was a young girl. She lived
with the defendant Tschcheidse for a period of 12 years believing him to be
her husband. She worked extremely hard and gave her husband all her
earnings. To my mind no monetary compensation can cure the deceit
perpetrated by her husband. I have found assistance from the following
excerpt by Denning L.J., in Shaw v. Shaw, [1954] 2 Q.B. 429 at 440, [1954] 2
All E.R. 638:
Every man who proposes marriage to a woman impliedly warrants that he is in
a position to marry her, and that he is not himself a married man; and he
reaffirms that warranty when he afterwards goes through a form of marriage
with her - whether in church or in a registry office. To take the familiar
words of the banns of marriage, he warrants that there is no 'cause or just
impediment' why he should not marry her. Every day of their married life he
continues the warranty; he warrants that their marriage was valid and that
there was no impediment to it.
25 The plaintiff will have judgment for $8,000 in damages and costs.
And for those of you who promise something to get your son married off to
his boyfriend beware of
Heichman v. National Trust [1920] 2 WWR 1012 wherein it was stated:
36 There is no doubt that the evidence as accepted by the Courts below
is to the effect that the appellant represented that his son was the owner
of the land and chattels in question. The law is that where upon proposals
of marriage third persons represent anything material in a light different
from the truth they shall be bound to make good the statement they make.
Montefiori v. Montefiori, 1 Wm. B1. 363, Mills v. Fox, 37 Ch. D. 153, at p.
162, 57 L.J. Ch. 56.
And Finally for those of you who were wondering about the effect of
illegitimacy on an action for seduction.
The natural father of a daugther born out of wedlock, could not bring an
action for seduction of his daughter, unless she was actually resident with
him at the time, as he had no claim as her natural father, but only for the
loss of her use as a servant, however he would have had a claim had she been
a legitimate daughter.
Biggs v. Burnham 1844 1 U.C.W.B. 106
This is just a bit of old law, which I hope shows that marriage is not and
has never been some static institution that is locked in time and place.
Doug Thomas
Welland, Ontario
