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mission to their authority forms the only sound basis of loyal citizenship and devotion to the State. Their Civil Code 76 requires that "for contracting a marriage a child must have the consent of his parents, being in the same house. This, however, does not apply if the man has completed his thirtieth year, or the woman her twenty-fifth year. If one of the parents is unknown, is dead, has quit the house, or is unable to express his intention, the consent of the other parent is sufficient. If both parents are unknown, are dead, have quit the house, or are unable to express their intention, a junior must obtain the consent of his guardian and of the family council.”
France also lays great stress upon the judgment of parents. All persons who have attained majority but have not completed their thirtieth year must ask for the consent of their father and mother as an essential preliminary to matrimony. If either refuse, the interested party must serve a notice of the intended marriage upon the dissenting parent or parents, and thirty days after this notification the parties may marry despite all objection.76 In Holland, also, all who have not attained the age of thirty must ask for the consent of parents. If this be refused or withheld, and the parties are of age, they may invoke the mediation of the judge of the canton where the parents are domiciled, who shall, within three weeks of the request, summon both parties before him and advise them in their best interests. If the father, or failing the father, the mother, does not attend, the celebration of the marriage may be proceeded with. If, after attending, the parents persist in their refusal, the marriage may be celebrated without their consent, after a delay of three months has expired." In Spain daughters who have attained their majority are forbidden to leave the paternal roof until they have attained their twenty-fifth year, except with the permission of their father or mother. Sons who have attained majority must ask the consent of their parents, and in case it is not granted they must not marry for three months. They may then apply for permission from the courts of law, which are not compelled to give reasons in case of refusal. If consent is not obtained, and a marriage is contracted without permission, it is binding, subject to the regulation that it will entail absolute separation of goods, that neither party can receive anything from the other by legacy or gift, and that each
75 Art. 772.
76 CODE NAPOLÉON, art. 151, as amended, 1896. 77 Dutch CIVIL CODE, arts. 98-104.
party will retain absolutely the administration of his or her own property, though with the obligation to contribute proportionately to the maintenance of the household.78 In Russia 79 children require the consent of their parents without regard to age, and in most parts of the empire there is no appeal in case this is withheld. Marriage without such consent is not invalid, but the guilty person is liable to a penalty of from four to eight months' imprisonment, on petition of the parent, and to the loss of the right of inheritance in the property of the parent.
Reasons of state give rise to various classes of cases where special consent is required before marriage.
In Austria all illegitimate children under age must obtain the sanction of the authorities, while in all the great nations of Europe where conscription prevails the consent of superiors to the marriage of soldiers and officers is obligatory.80 Belgian officers on active service, or officers of the reserve, in receipt of pensions, up to and of the rank of captain, must prove that they are in receipt of an income of six hundred florins exclusive of their army allowance before their request will be considered.81 Germany imposes a criminal penalty on all members of the peace establishment (Friedensstand) who marry without the requisite official permission, and they are liable to confinement in a fortress for a period not exceeding three months. 82
The consent to be obtained by members of royal families is most stringent of all. Their personal preferences and desires, during the whole period of their lives, are subordinate to the interests of the State, whose tacit or express approval is necessary before any marriage can be legally solemnized. 83 In this regard, at least, even the lowliest will not envy the mighty of the earth.
78 British Report on Foreign Marriages, 1894, part II, p. 137.
83 In Great Britain by the Royal Marriage Act (12 GEO. III, C. 11) no descendant of George II (other than the issue of princesses married, or who may marry into foreign families) may contract a valid marriage without the consent of the king or queen, given under the Great Seal, declared in council, and entered in the privy council books. But at the age of twenty-five they may marry without such consent, after twelve months' notice to the privy council, if in the meantime the two houses of Parliament have not disapproved of such marriage.
Democracy is inclining to the other extreme. It is loosening shackles and seems disposed to grant entire freedom of personal choice at too early an age. Marriage in youth produces on a woman the same injurious effects as on an inferior creature an arrest of growth and an enfeeblement of constitution both of parent and offspring, 84 and when it becomes generally recognized that early marriages are just as harmful to the individual and to the community as child labor, we may hope for the establishment of higher standards of physical and mental maturity. It is the noble mission of medical science to strengthen and preserve the weak; that of the legislator to stay the evil at its source, and to say that, in so far as law can effect it, future generations shall be of sound mind and body, imbued with all the qualities which make for national greatness.
Albert Swindlehurst. MONTREAL, CANADA.
84 SPENCER, PRINCIPLES OF BIOLOGY, $ 365.
SURETYSHIP AT "LAW MERCHANT"
ES the “law merchant” include any of the doctrines of
suretyship, and can any incident of suretyship attach to a negotiable instrument?
In its report to the Conference of Commissioners on Uniform State Laws at the Washington meeting in 1914, the Committee on Uniformity of Judicial Decisions in Cases Arising Under Uniform Laws discusses at some length the failure of courts to make uniform application of the provisions of the Uniform Negotiable Instruments Act." It finds that this failure has been due principally to lack of knowledge of the “law merchant,” quotes from a number of decisions giving judicial sanction to the purpose of the uniform statute, and summarizes:
“With all due respect to the learning of the lawyers and the judges of our country candor calls upon us, in the performance of the duty of writing this report, to call attention to the evidence furnished by these decisions of cases under the Uniform Negotiable Instruments Law, that many of the counsel therein and many of the judges in their opinions are more imbued with the spirit of the common law than with the spirit of the 'Law Merchant.' The word 'surety' is not to be found even once in the uniform statute under consideration, yet counsel, in their briefs and arguments, as well as judges in their opinions, speak constantly of certain parties to the cases as being sureties. It is a common law term, unknown to the ‘Law Merchant.' This carrying over into the field of the 'Law Merchant' the use of terms of the common law shows that the lawyers and judges have not learned to think in terms of the 'Law Merchant' when dealing with questions under the ‘Law Merchant, but think and therefore reason as if they were still dealing with questions under the common law. It is this obliteration or ignoring of the distinction between two different systems that leads the judges in many of these cases, including some above cited, to speak of 'the common law of negotiable instruments,' meaning the 'Law Merchant.' We do not speak of the common law of equity, nor of the common law of admiralty. The ‘Law Merchant,' like equity, is not a part of the common law; it is a
11 Am. BAR Ass'n. J. 24-49.
separate system of law. As Bigelow says in 'The Law of Bills, Notes and Checques' p. 5:
"The mischief lies in the mistaken notion implied, that the "Law Merchant" is a sort of poor relation of the common law, subject to it wherever its own language is not plain. Such instances, in other words, overlook the fact that the "Law Merchant" is an independent parallel system of law, like equity or admiralty. The "Law Merchant” is not even a modification of the common law; it occupies a field over which the common law does not and never did extend.'
"... These are but stray samples of the evidence furnished by an examination of early statutes and early cases on bills and notes in the states of our union, that show an ignorance of the principles of the 'Law Merchant' out of which some have not yet entirely emerged. To secure uniformity in decisions under the Uniform Negotiable Instruments Act there must be more intimate knowledge of the ‘Law Merchant.' ”2
The foregoing views the conference, approving the report, made its own. This insistence upon a uniformity which shall confine itself strictly to the language of the Uniform Act, and which by its operation will eliminate suretyship from the “law merchant" as expressed in the uniform statute, obtains some additional emphasis from the address of President Charles Thaddeus Terry of the conference at its 1915 meeting, and from a prize essay by Mr. Jacob Sicherman of the Buffalo Law School, reprinted by request of the conference in a recent issue of the American Bar Association Journal. Such insistence seems to proceed upon the triple hypothesis that suretyship was unknown to the “law merchant,” that the Uniform Act, codifying the “law merchant,” likewise excludes it, and that whether it be found in the “law merchant” or not, the Uniform Act excludes and abrogates it by failing to include it. To consider, with due respect to the conference and to the eminent text-writer its committee quotes, what soundness these views possess, is the object of this discussion.
Upon these views the first and most obvious commentary is suggested by the reference to the “law merchant” as in all respects separate from and unmodified by the common law. That the custom of merchants, within its limited field, was at one time independ
1 Am. Bar Ass'n. J. 41-43. 40 REPORTS OF THE AMERICAN BAR ASSOCIATION, 919–48. 4 “Construction of Clause in Uniform State Laws Providing for Uniformity of Interpretation," 2 Am. Bar Ass'n. J. 60–79.