LECTURE XXVI.

OF THE LAW CONCERNING MARRIAGE.

THE primary and most important of the domestic relations is that of husband and wife. It has its foundation in nature, and is the only lawful relation by which Providence has permitted the continuance of the human race. In every age it has had a propitious influence on the moral improvement and happiness of mankind. It is one of the chief foundations of social order. We may justly place to the credit of the institution of marriage a great share of the blessings which flow from refinement of manners, the education of children, the sense of justice, and the cultivation of the liberal arts. (a) In the examination of this interesting contract, I shall, in the first place, consider how a marriage may be lawfully made; and, secondly, how it may be lawfully dissolved; and, lastly, I shall take a view of the rights and duties which belong to that relation.

(1.) All persons who have not the regular use of the understanding, sufficient to deal with discretion in the common affairs of life, as idiots and lunatics, (except in their lucid intervals,) * are incapable of agreeing to any contract, and of course to *76 that of marriage. But though marriage with an idiot or lunatic be absolutely void, and no sentence of avoidance be absolutely necessary, (a) yet, as well for the sake of the good order of society, as for the peace of mind of all persons concerned, it is

(a) The great philosophical poet of antiquity, who was, however, most absurd in much of his philosophical theory, but eminently beautiful, tender, and sublime in his poetry, supposes the civilization of mankind to have been the result of marriage and family establishments.

Castaque private veneris connubia læta
Cognita sunt, prolemque ex se videre creatam:
Tum genus humanum primum mollescere cœpit.

(a) 2 Phil. 19. Browning v. Reane, Ibid. 69.

Lucret. de Rer. Nat. lib. 5.

expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction. (b) The existence and extent of mental disease, and how far it may be sufficient, by the darkness and disorder which it brings upon the human faculties, to make void the marriage contract, may sometimes be a perplexing question, extremely distressing to the injured party, and fatal to the peace and happiness of families. (c) 1 Whether the relation of husband and wife lawfully exists, never should be left uncertain. Suits to annul a marriage, by reason of idiocy or lunacy, have consequently been often instituted and sustained in the spiritual courts in England. (d) The proper tribunal for the investigation of this question, when it is brought up directly, and for the mere purpose of testing the validity of the contract, will depend upon the local institutions of every state. In those states which have equity tribunals, it belongs to them; (e) and when there are no such tribunals distinct from the supreme courts of common-law jurisdiction, for the exercise of equity powers, whatever jurisdiction is exercised over the matrimonial contract must be in the common-law courts.

A marriage procured by force or fraud is also void, ab initio, and may be treated as null by every court in which its validity may be incidentally drawn in question. (f) The basis of

(b) Hays v. Watts, 3 Phil. 44. Sir Wm. Scott, in Pertreis v. Tondear, 1 Hagg. Cons 138. Crump v. Morgan, 3 Ired. (N. C.) Eq. 91.

(c) There is a very interesting judicial discussion in M'Elroy's case, 6 Watts & Serg. 451, on the subject of lunacy, and the question is, whether the mind is deranged to such an extent as to disqualify the party from conducting himself with personal safety to himself and others, and from managing and disposing his own affairs, and discharging his relative duties.

(d) Ash's case, Prec. in Ch. 203. 1 Eq. Cas. Abr. 278, pl. 6. Ex parte Turing, 1 Ves. & Bea. 140. Turner v. Meyers, 1 Hagg. Cons. 414. Countess of Portsmouth v. Earl of Portsmouth, 1 Hagg. Eccl. 355. Shelford on Marriage and Divorce, pp. 183

201.

(e) Wightman v. Wightman, 4 Johns. Ch. 343. Crump v. Morgan, 3 Ired. (N. C.) Eq. 91. In this and many other points relative to domestic rights, the English ecclesiastical law is considered as part of the common law.

(f) A marriage would be void if made while one of the parties was in a state of intoxication, such as would incapacitate the party from entering into any other contract. The case of Brown v. Johnston, in 1818, is cited by Dr. Irving to this point. (Introduction to the Study of the Civil Law, p. 102, note.)

1 The marriage is void, if one of the parties was at the time insane from delirium tremens Clement v. Mattison, 3 Rich. 93.

the marriage contract is consent, and the ingredient of* fraud *77 or duress is as fatal in this as in any other contract, for the free assent of the mind to the contract is wanting. (a) The common law allowed divorces a vinculo causa metus, causa impotentiæ, and those were cases of a fraudulent contract. (b) It is equally proper in this case, as in those of idiocy or lunacy, that the fraud or violence should be judicially investigated, in a suit instituted for the very purpose of annulling the marriage; and such a jurisdiction in the case properly belongs to the ecclesiastical courts in England, and to the courts of equity in this country. It is declared in New York by statute, (c) that when either party to a marriage shall be incapable of consenting to it, for want of age or understanding; or incapable, from physical causes, of entering into the marriage state; or when the consent was obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent authority; and the courts of equity are invested with that power. (d) It is said that error will, in some cases, destroy a marriage, and render the contract void, as if one person be substituted for another. This, however, would be a case of palpable fraud, going to the substance of the contract; and it would be difficult to state a case in which error simply, and without any other ingredient, as to the parties, or one of them, in respect to the other, would vacate the contract. It is well understood that error, and even disingenuous representations, in respect to the qualities of one of the contracting parties, as his condition, rank, fortune, manners, and character, would be insufficient. The law makes no provisjon for the relief of a blind credulity, however at may have been produced. (e)

(a) Voet, ad Pand. lib. 24, 2, 15. Toullier's Droit Civil Français, tom. i. Nos. 501, 504, 506, 512. Reeve's Domestic Relations, 201, 207. Pothier's Traite du Contrat de Mariage, Nos. 307, 308. 2 Hag. Cons. 104, 246.

(b) Bury's case, 5 Co. 98, b. Oughton's Ord. Jud. tit. 193, sec. 17.

(c) N. Y. Revised Statutes, vol. ii. p. 139, sec. 4.

(d) Ibid. 142, sec. 20; 168, sec. 2.

(e) Toullier, ut supra, Nos. 515, 521. Pothier, ut supra, Nos. 310, 314. 1 Phillimore, 137. 2 Hag. Cons. 248. Benton v. Benton, 1 Day, 111. Stair's Institutions, by More, vol. i. n. b, p. 14.

1 The court declared the nullity of a marriage in a case in which the insanity of the woman had been concealed by her friends. Keyes v. Keyes, 2 Foster, 553, and, see True v. Ranney, 1 Foster, 52. Robertson v. Cole, 12 Texas, 356.

J. Dbaile

*78 (2.) *No persons are capable of binding themselves in marriage until they have arrived at the age of consent, which, by the common law of the land, is fixed at fourteen in males, and twelve in females. The law supposes that the parties, at that age, have sufficient discretion for such a contract, and they can then bind themselves irrevocably, and cannot afterwards be permitted to plead even their egregious indiscretion, however distressing the result of it may be. Marriage, before that age, is voidable at the election of either party, on arriving at the age of consent, if either of the parties be under that age when the contract is made. (a) But this rule of reciprocity, however true in its application to actual marriages, does not apply to other contracts made by a competent party with an infant, nor even to a promise of marriage per verba de futuro with an infant, under the age of discretion. The person of full age is absolutely bound, and the contract is only voidable at the election of the infant. This point was ruled by the K. B. in Holt v. Ward Clarencieux, (b) after the question had been argued by civilians, to see what light might be thrown upon it from the civil and canon law. Though this be the rule of the English law, the civilians and canonists are not agreed upon the question; and Swinburne was of opinion that the contract in that case was not binding upon the one party more than upon the other. (c)

The age of consent, by the English law, was no doubt borrowed from the Roman law, which established the same periods of twelve and fourteen, as the competent age of consent to render the mar riage contract binding. (d) Nature has not fixed any precise

*

period; and municipal laws must operate by fixed and rea*79 sonable rules. The same rule was adopted in France, before their revolution: (a) but by the Napoleon code, the age of consent was raised to eighteen in males, and fifteen in

(a) Co. Litt. 33 a, 79 b. The Massachusetts Revised Statutes, of 1836, render marriages contracted when either of the parties is within the age of consent, valid, if followed by voluntary cohabitation.

(b) 2 Str. 937.

(c) Harg. Co. Litt. lib. 2, note 45.

(d) Inst. 1, 10, De Nuptiis. Co. Litt. 78 b. 1 Blacks. Com. 436.

(a) 1 Domat. Prel. b. 24, 25. The incapacity for marriage ceased when the parties had attained the respective ages of fourteen and twelve. But if the children were ander paternal authority, the son could not marry unless he was thirty years of age, nor the daughter unless she was twenty-five, without the consent of their parents. Ibid.

females, though a dispensation from the rule may be granted for good cause. If without the consent of their parents, or of the father, in case of a difference of opinion, the son must be twentyfive years complete, and the daughter twenty-one years complete, to render them competent to contract marriage. (b)

(3.) No person can marry while the former husband or wife is living. Such second marriage is, by the common law, absolutely null and void; (c) and it is probably an indictable offence in most, if not all of the states in the Union. (d) In New York, it is declared by statute to be an offence punishable by imprisonment in a state prison, in all but certain excepted cases. Those cases are, when the husband or wife, as the case may be, of the party who remarries, remains continually without the United States for five years together; or when one of the married parties shall have absented himself or herself from the other by the space of five successive years, and the one remarrying shall not know the other, who was thus absent, to be living within that time; (e) or

(b) Code Civil, Nos. 144, 148. The New York Revised Statutes, vol. ii. p. 138, established the ages of consent at seventeen in males, and fourteen in females; but the provision was so disrelished, that it was repealed within four months thereafter, by the Act of 20th April, 1830, which, of course, left the case to stand as before, upon the rule of the common law. In Ohio, Indiana, and Michigan, the age of consent is raised to eighteen years in males, and fourteen in females. Statutes of Ohio, 1831. Territorial Act of Michigan, April, 1832. R. Statutes of Indiana, 1838. In Illinois, to seventeen in males, and fourteen in females. Illinois R. Laws, 1833.

(c) Cro. Eliz. 858. 1 Salk. 121.

(d) In North Carolina, bigamy was a crime punishable with death. Statutes 1790 and 1800. In Alabama, it is punishable by fine, imprisonment, and whipping. Atkins's Dig. 2d ed. p. 107.

(e) In Ohio, it is three years of continual and wilful absence, next before the second marriage. Statutes of Ohio, 1831. In Massachusetts, it is seven years; and it is further added, that the legal penalty does not apply if one of the parties had been absent for a year or more at the time of the second marriage, and believed to be dead. Mass. Genl. Sts. ch. 165, § 5.

1 But in New York, the court has power by statute to annul marriages in certain cases when the female was, at the time of the marriage, under the age of fourteen. Bennett v. Smith, 21 Barb. (N. Y.) 439. In Wisconsin, males may marry at eighteen, females at fifteen. R. S. Wisconsin, tit. 21, ch. 78. In Virginia, males may marry at fourteen, females at twelve. Rev. St. 1849, tit. 31, ch. 109, sec. 3. In Ohio, it has been decided that marriages between a male under the age of eighteen, and a female under the age of fourteen, are invalid, unless confirmed by cohabitation subsequently to the parties attaining the statutory age. Shafher v. State of Ohio, 20 Ohio, 1. While in Iowa the decision of the court is directly contrary. Goodwin v. Thompson, 2 Greene (Iowa) 329. The statutes in both states are substantially the same in language. The common-law rule which fixes the ages of consent at fourteen and twelve years prevails in Massachusetts. Parton v. Hervey, 1 Gray, 119.