(JornpU ICam ^rljnnl fCibrary Cornell University Library KF 510.B62 V.1 C.2 New commentaries on marriage, divorce, a 3 1924 018 827 844 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018827844 NEW COMMENTARIES ON Marriage, Divorce, and Separation AS TO THE LAW, EVIDENCE, PLEADING, PRACTICE, FORMS AND THE EVIDENCE OF MARRIAGE IN ALL ISSUES ON A NEW SYSTEM OF LEGAL EXPOSITIOl^ BY JOEL PRENTISS BISHOP HONORARY DOCTOR JURIS UTEIUSQUE OF THE UNIVERSITY OF BERNE IN TWO VOLUMES Volume I. CHICAGO T. H. FLOOD AND COMPANY 1891 Copyright, 1891, By Joel Prentiss Bishop. Univeksitt Press: John Wilson and Son, Cambridge. PEEFACE. The double purpose of the present work is to present the subject of a preceding one in a new and improved form, and to introduce the practitioner to available methods of investigation and labor productive of higher results than have been common heretofore. Almost forty years ago was published my original "Marriage and Divorce," the first of my legal writings. It was in one volume, covering only a part of the ground occupied by the two-volume editions. The present work retains the entire larger ground, and adds thereto the promise to marry and the breach of it, seductions of husband and wife, and various minor topics. It brings down the entire subject, as appearing in the utterances and decisions of the courts, to the present date. It arranges all in an improved order; and it treats all from the standpoint of to-day, as though the author had never before written on the subject. Beyond which, and chiefly, it is what is now to be explained. These "New Commentaries " are the culmination, while they are the best exemplification I can give, of what is mentionejd on the titlepage as "a new system of legal exposition." This system consists, to state it briefly, of carrying each question into the light of, first, the entire IV PREFACE, subject; secondly, the entire legal system; thirdly, those laws of our earthly existence which man has no power to change; and lastly, those technical rules which have be- come estabhshed through the judicial doctrine of siai'e decisis ; then, of introducing into the problem all the considerations which are relevant, and especially not over- looking any ; and thereby determining and writing down what, in fact, the judicial mind of our own country and age, when duly made cognizant of all, will hold upon the several questions. It follows no opinion of any preceding writer or judge which an examination shows to be con- trary to the reasonings and settled doctrines of the law, and especially it never introduces any opinion or reason- ing of the author, but states instead the law's reasonings and conclusions as every judge will hold them on being duly enlightened from the bar. For it recognizes the fact that while the past lives in its translated wisdom •and reason, its inert, dead forms are buried, and the dealings of practitioners and judges are exclusively with 'the present and future. It does not attempt to bend or seduce away any mind from former convictions; its aim is the far higher one, to induce, by all justifiable persua- sions, the reader to look, not solicitous about the result of the looking. It recognizes the fact that our conflicts of judicial opinion do not result in any considerable degree from real differences, but almost entirely from the over- looMng of things by judges who, if they had all before their thoughts, would decide in harmony. So it is in other affairs. If a bench of judges look at a sheet of white paper with normal and naked eyes, one does not say that it is green, another that it is yellow, and another that it is blue ; but if, unperceived, differing glasses are inter- posed between the several eyes and the paper, the results will vary with the natures of the glasses. PREFACE. V Before the publication of my original " Marriage and Divorce," the adjudged law of the subject, as appearing in our American reports, was a chaos discordant beyond anything else in our entire jurisprudence. The Preface contained the following paragraph : — " So many judicial conflicts and doubts have been encountered that the size of the work is much beyond what would otherwise have been required. In dealing with these questions, I have npt always followed the path of argument prescribed by either side to the controversy ; indeed, it has happened that in most of these instances the truth has seemed to me to lie in a somewhat untrodden way. I hope this will not be regarded as impairing the usefulness of the work ; it could not have been avoided con- sistently with the general plan ; and if I have succeeded in eluci- dating any questions of difficulty, it has been in consequence of this method. Truth, alone and unadorned, with no shadow of contiguous error upon its visage, is usually recognized alike hij all men ; and the principal reason why differences arise, is be- cause it has never thus been distinctly and accurately seen." Here is the germ of what will yet be accepted as a great tree in our legal field. Not without misgivings was it planted. Yet with gratitude to the Author of all Light, I soon began to discover that the courts, as fast as occa- sions arose, and they became acquainted with the reason- ings of iny book, dropped their former reasonings and substituted those therein suggested. The result was that the decisions themselves were rendered uniform, so that to-day the conflicts on marriage and divorce law are probably less than on any other legal subject. Nothing exists without a cause. What w^as the cause of this revolution ? It was not that the author was an eminent member of the profession, whose opinions should be examined and followed. On the contrary, he was a young man, known by only a few, and by the few known vi PREFACE. to be worthy of no special regard. It was not that the sheepskin in which non-professional publishers chose to bind the work gave it weight. No judge was ever scared into anything by a rectangular piece of leather. Judges follow authority, but my book had no more authority than the morning's newspaper or the latest novel. A flatterer might have pretended that I possessed some special faculty for law writing. But T knew better. Not even a flatterer would have ventured to assert that I was endowed with any special learning. Like effects followed the publication of other books. So the inquiry after the cause never slept. When the full solution of the problem became palpable, it, like most other discovered truths, seemed so plain and obvious as to be scarcely worthy of mention. My utter lack of the possibility of greatness or even of an aspira- tion therefor, — the fact that I could not if I would, and would not if I could, cry "Excelsior," and "Aim high," after the universally accepted rule for a noble life, and thus walk up the mountain of glory before an astonished world, — sent down my thoughts (for thoughts, as well as limbs, must have rest) to the simple and obvious considerations connected with the subject on which I was writing. And these were exactly what our eminent practitioners, authors, and judges, all of nobler aspirations, — all looking upward and away for the great, the mighty, the overwhelming, — constantly missed of seeing. "When these obvious and simple, yet theretofore undiscerned, things were thus gathered up, and woven into the problems of the law, the respective conclusions were plain and inevitable ; judges, as fast as compelled by their official duties to look into them, were convinced ; they acted upon them, and the uncertainties and conflicts of the decisions vanished. Before looking, yet on obtaining vague ideas of results, PREFACE. VU some were horrified that I should have pictured the law as a beneficent power, instead of the woe-breeding pest which they had fondly cherished it as being. Yet even these gentlemen, as fast as they could be enticed into looking, have acknowledged the truth to be otherwise than they had supposed. The whole idea may be illustrated by what I once happened to witness, — not a remarkable phenomenon, and doubtless more than once observed by every one of my readers. A skilled mechanic was in a dilemma how to do a thing. A boy without mechanical knowledge or years to acquire it was standing by, and pointed out the way ; whereupon the thing was done. The boy from his simplicity and lowliness saw what the loftier mind overlooked. In law writings, I am and hope always to remain the boy. I speak with no authority, rely on no learning,' ask only of my readers that they look and decide for them- selves ; while simply I point out what my superiors from their loftier positions, and impelled by their nobler aspira- tions, have failed to discern. It is theirs to carry the banner and march up the hill to the cry of " Excelsior ; " mine to humbly gather up the unglorified, unobserved, yet nevertheless priceless treasures at the foot. The volumes here presented descend more simply and more fully into the obvious yet unthought of things than the ones they supersede. Therefore their conclusions are less easily resisted. Yet I do not claim that there is in them no explanation less full than it ought to be, or that there is absolutely nothing which I have overlooked. Still, what is here written is but a minute fragment of what I have " thought of" Especially I have not attempted in these pages to answer, though I have considered, the many objections which might be suggested to the views Vlll PREFACE. here presented. An attempt thus to forestall adverse opinions would have swollen the work to unendurable dimensions. And it would be a misfortune should any writing be so constructed as to create in the reader the idea that there was nothing for him to think of beyond. To stimulate thought, not lull it to sleep, is the true work of every author ; it has certainly been always mine. It requires no words to show that this " new system of legal exposition" is as available to the practitioner as to the author. Obviously, also, its general use would work a revolution in legal practice and to outward appear- ance in the law itself And the revolution would be an immixed good, with no particle of attendant evil, to law students, to practising laAvyers, to the judges, and to the entire public. It involves no substitution of a new system of law for an old one, changes the sub- stance of no law, but it makes the law we have plain and easily understood, and beneficent, just, and uniform in its workings. Further details, explanations, and unfoldings of prac- tical methods appear in an Introduction following the " Contents." J. P. B. Cambridge, May 1, 1891. CONTENTS OF VOLUME I. Page Inteoduction Explaining the New System of Legal Exposition BOOK I. GENERAL AND FUNDAMENTAL. Chapteb Section I. The Natdee of the Subject and its Position in the Legal Field 1-6 II. The Definition and General Nature of Marriage 7-37 III. The Eights and Wrongs op Dissolution by Divorce 38-60 IV. The Nature and Policy of the Several Separations 61-70 § 61. Introduction. 62-66. Without Judicial Intervention. 67-70. By Judicial Intervention. V. Something op Legal Doctrines resulting from the Foregoing 71-77 VI. Legal Doctrines derived from Historical Sources, FROM Religious Beliefs, and from Prejudices . 78-95 § 78. Introduction. 79-85. Nature and Difficulties of Subject. 86-91. Historical Influences. 92-95. Prejudices, and Religious Beliefs. CONTENTS OP VOLUME I. BOOK II. PRACTICAL PRELIMINARIES. Chapter Section VII. The English Ecclesiastical Law 96-114 § 96. Introduction. 97^99. In General. ' 100-109. Origin and Nature of English Ecclesiastical Law. 110-113. The Ecclesiastical Judges and their Decisions. 114. Doctrine of Chapter restated. VIII. OnB Unweitten Law of this Subject . . . 115-149 § 115. Introduction. 116-126. In Reasonand by Analogy. 127-137. In Direct Authority and Dicta. 138-148. Specially of the Procedure. 149. Doctrine of Chapter restated. IX. Modern English and American Statutes . . 150-168 § 150, 151. Introduction. 152-154. Modern English Statutes and Court. 155-160. As between United States and States. 161-167. Nature and Interpretation of the Statutes. 168. Doctrine of Chapter restated. X. Our Judicial Authorities 169-180 § 169. Introduction. 170-177. Books of Ecclesiastical Law. 178-180. Other Books. BOOK III. HOW MARRIAGE IS CONSTITUTED AND WHAT ARE ITS NULLITIES. XI. The Executory Agreement to marry, Breach of Promise 181-235 § 181, 182. Introduction. 183-195. General Nature of Agreement. 196-200. How Agreement proved. 201-211. Capacity, Mutual Promise, Consideration. 212-214. Statute of Frauds. 215-225. Terminations and Rescissions. 226-234. Damages and how Aggravated or Mitigated. 235. Doctrine of Chapter restated. CONTENTS OP VOLUME I. XI Chapter Section XII. The Elements of Executed Marriage . . . 236-251 XIII. Void and Voidable in Marriage .... 252-292 § 252. Introduction. 253-259. , Uncertain and Variable Meanings. 260-264. History of Distinction in Marriage Law. 265-270. Effects in Marriage Law. 271-277. More specifically of Voidable and Dissolution. 278-286. What Marriages Voidable, Void. 287-291. English and American Statutes. 292. Doctrine of Chapter restated. XIV. The Consent of the Parties 293-317 § 293, 294. Introduction. 295-299. Necessity and Nature in General. 300-311. To what, as constituting Marriage. 312-316. To Present Marriage, not Future. 317. Doctrine of Chapter restated. XV. Consent without Formal Solemnization . . 318-383 § 318, 319. Introduction. 320-326. By what Methods. 327-339. Formal but not in Fact. 340-352. Specially of Consent per Verba de Prcesenti. 353-377. Same per Verba de Futuro cum Copula. 378-381. The Scotch Habit and Repute. 382. Effect of Consent Imperfect. 383. Doctrine of Chapter restated. XVI. The Element of a Formal Solemnization . . 384-449 § 384. Introduction. 385-389. Opinions as to how it should be Legislatively. 390-408. The English Unwritten Law. 409-422. Common Law of our States. 423-436. How Statutes providing Formalities interpreted. 437-441. Form of Marriage Ceremony. > 442-448. Particular Provisions of Statutory Law. 449. Doctrine of Chapter restated. XVII. Fraud, Error, Duress 450-550 §450,451. Introduction. 452-528. Fraud. 529-537. Error. 538-544. Duress. 545-549, Common to All. 550. Doctrine of Chapter restated, XVIII. The Consent of Parents 551-559 Xll CONTENTS OP VOLUME I. Chapter Section XIX. The Age of the Parties 560-586 § 560. Introduction. 561-581. Under Common Law. 582-585. Statutes and their Effect. 586. Doctrine of Chapter restated. XX. The Mental Capacity, oe the Nullity from Insanity 587-645 § 587. Introduction. 588-594. In General of Doctrine. 595-601. Degree and Test of Insanity. 602-613. Some Particular Questions. 614-626. Affirming and Disaffirming Marriage. ,627-632. Void and Voidable. 633-644. ni-considered Statutes. 645. Doctrine of Chapter restated. XXI. The Effects op Slavery and Emancipation . . 646-679 § 646, 647. Introduction. 648-659. Slave Marriages. 660-669. Effect of Emancipation on them. 670-678. Status and Rights of Children. 679. Doctrine of Chapter restated. XXII. Other Impediments of Race and Civil Con- dition 680-695 §680,681. Introduction. 682-693. Marriages between Whites and Negroes. 694. Other like Marriages. 695. Doctrine of Chapter restated. XXIII. Impediments following Divorce 696-711 § 696, 697. Introduction. 698-702. In Absence of Statutory Provisions. 703-710. Impediments created by Statutes. 711. Doctrine of Chapter restated. XXIV. The Impediment of a Prior Marriage un- dissolved 712-729 § 712. Introduction. 713-716. Penal Con,sequences. 717-722. Direct Civil Effects. 723-728. Collateral Resultings 729. Doctrine of Chapter restated CONTENTS OP VOLUME I. XIU Chapter XXV. Consanguinity and Affinity § 730. Introduction. 731-735. In General aijd Reasons. 736-748. Our Unwritten Law and how interpreted. 749-755. Our Statutes and their llesultiugs. 756. Doctrine of Chapter restated. XXVI. Impotence, or Physical Incapacity . . § 757. Introduction. 758-764. In General. 765-775. Nature and Degree of Incapacity 776-783. Its Various Forms. 784-789. Eemediable or Permanent. 790-796. Effect on the Marriage. 797. Doctrine of Chapter restated. Section 730-7iG 757-797 XXVII. Penal Consequences of Irregular Marriage 798-815 § 798, 799. Introduction. 800-802. As to the Parties. 803-814. As to Third Persons. 815. Doctrine of Chapter restated. XXVIII. Legislative Validations of Marriage . 816-824 XXIX. Marriage entered into in another State or Country ; or, Conflict op Marriage Laws 825-920 § 825, 826. Introduction. 827-832. Blendings of Domestic and Foreign Laws. 833-840. Marriage International, and Consequences. 841-885. Good where Celebrated, good everj'where. 886-906. Invalid where Celebrated, invalid everywhere. 907-919. Collaterals of Marriage distinguished from Status. 920. Doctrine of Chapter restated. BOOK IV. THE EVIDENCE OF MARRIAGE. XXX. The Doctrine in Outline .... XXXI. The Presumptions and Their Effect . § 926. Introduction. 927-930. General Doctrine. 931-943. Presumption of Innocence. 944-948. That Official Persons have done their Duty. 949-955. Presumption of Life. 956-958. General Presumption favoring Marriage. 959. Doctrine of Chapter restated. 921-925 926-959 XIV CONTENTS OP VOLUME I. Chapter Section XXXn. Specially of Cohabitation illicitly begun 960-985 § 960. Introduction. 961-963. Preliminary Distinctions. 964-976. Where Marriage good without Formalities. 977-984. Where not good. 985. Doctrine of Chapter restated. XXXIII. Marriage Records, Certificates, and OTHER like Proofs 986-1020 § 986, 987. Introduction. 988-1002. Marriage Records. 1003-1011. Marriage Certificates. 1012-1014. Unofficial Writings. 1015-1019. Proofs auxiliary to Record. 1020. Doctrine of Chapter restated. Proving the Fact of Marriage when Pre- sumptions ARE conflicting .... 1021-1064 § 1021. 1022-1025. 1026-1031. 1032-1038. 1039-1046. 1047-1056. 1057-1063. 1064. XXXIV. Introduction. Preliminary Explanations. Antagonizing Presumptions of Innocence. In General of Fact of Marriage. Circumstantial Evidence of such Fact. Direct Evidence of it other than by Record. Confessions and Admissions of Party. Doctrine of Chapter restated. XXXV. XXXVI. XXXVII. Specially of the Proofs of Foreign Mar- riage 1065-1137 1065-1070. Introduction. 1071-1084. Presumptions as to Foreign Law in General. 1085-1112. Non-presumptive Proofs of Foreign Law. 1113-1120. Presumptions as to Foreign Marriage. 1121-1136. Non-presumptive Proofs of Foreign Marriage. 1137. Doctrine of Chapter restated. Miscellaneous Questions 1138-1157 § 1138. Introduction. 1139-1142. Statutes changing Common-law Rules. 1143-1149. Evidence and Presumptions of Divorce. 1150-1156. Questions partly in Review. 1157. Doctrine of Chapter restated. The Marriage disclosed in the Proofs OF Pedigree and Legitimacy . . . §1158,1159. Introduction. 1160-1162. Pedigree as to Marriage. 1 1 63-1 165. Legitimacy as to Marriage. 1166-1181. Children Legitimate or not. 1182. Doctrine of Chapter restated. 1158-1182 CONTENTS OF VOLUME I. XV BOOK V. NON-LEGAL SEPARATIONS AND BREACHES OF MAR- RIAGE RIGHTS AND DUTIES. Chapter Section XXXVIII. The Husband and Wife's Mutual Ser- vices AND Support 1183-1202 XXXIX. TnE Several Parol Separations and their Justifications and Consequences . . § 1203. Introduction. 1204-1214. Temporary Absences. 1215-J227. Husband's Fault, 1228-1234. Wife's Fault. 1235-1239. Mutual Consent. 1240-1251. Common to All. 1252. Doctrine of Chapter restated. XL. The Husband or Wife's Insanity . . . XLI. Separations under Articles 1203-1252 1253-1259 1260-1312 § 1260-1262. Introduction. 1263-1267. Modern English Doctrine. 1268-1286. American and Former English Doctrine. 1287-1311. How in Respective States. 1312. Doctrine of Chapter restated. XLII. The Wife acting in Separation as Sole § 1313. Introduction. 1314-1322. Preliminaries. 1323-1326. Husband's Civil Death. 1327-1334. English Analogies from Civil Death. 1335-1353. Doctrine in our Kespective States. 1354. Doctrine of Chapter restated. 1313-1354 XLIII. Seductions op the Husband or Wife 1355-1376 § 1355, 1356. Introduction 1357-1359. Seduction of Husband. 1360-1364. Same of Wife otherwise than in Crim. Con. 1365-1375. Crim. Con. with Wife. 1376. Doctrine of Chapter restated. XVI CONTENTS OP VOLUME I. BOOK VI. THE INTERVENTIONS OF LAW BETWEEN HUSBAND AND WIFE OTHER THAN BY JUDICIAL DIVORCE. Chapter XLIV. XLV. Miscellaneous and in General .... Specially op Alimony without Divorce . § 1383, 1384. Introduction. 1385-1392. In General of Alimony. 1393-1401. Whether and when an Independent Eight. 1402-1420. In what Manner and for what Causes. 1421. Doctrine of Chapter restated. Sectiojt 1377-1382 1383-1421 XLVI. Legislative Divorces 1422-1471 § 1422, 1423. Introduction. 1424-1429. Briefly and in General. 1430-1434. Whetjier impair Obligation of Contracts. 1435-1442. Whether void as Eetrospective Legislation. 1443-1453. Whether as Exercise of Judicial Power. 1454-1462. Special Exceptions to Validity. 1463-1470. Limitations of Effect. 1471. Doctrine of Chapter restated. BOOK VII. JUDICIAL DIVORCES. XLVII. In General of the Authorizing Statutes 1472-1492 XLVIII. § 1472. 1473-1476. 1477-1486. 1487-1491. 1492 Adultery Introduction. Miscellaneous and Introductory Views. Eetrospective Interpretations. Eetrospective Effects. Doctrine of Chapter restated. 1493-1523 § 1493, 1494. Introduction. 1495-1500. Historically and in General. 1501-1516. Specifically of Matrimonial Offence. 1517-1522. Independently of Divorce. 1523. Doctrine of Chapter restated. CONTENTS OP VOLUME I. xvii Chapter SEOTioisr XLIX. Cruelty . 1524-1652 § 1524-1526. Introduction. 1527-1544. General Doctrine of Cruelty, 1545-1616. Particular aud Subordinate Doctrines. 1617-1629. Relative Bights and Duties of Husband aud Wife. 1630-1639. Cruelty by the Wife to the Husband. 1640-1647. Effect of 111 Conduct in the Complaining Party. 1648-1651. Distinction between the Law and Evidence. 1652. Doctrine of Chapter restated. L. Desertion 1653-1778 § 1653, 1654. Introduction. 1655-1663. General Doctrine. 1664-1668. Differing Terms of Statutes. 1669-1686. Cessation of Cohabitation. 1687-1734. Intent to Desert and Acts accompanying. 1735-1770. The Justification. 1771-1776. Continuity of the Desertion. 1777. Distinction between Law and Evidence. 1778. Doctrine of Chapter restated. LI. Other Specific Causes of Divorce . . . 1779-1832 § 1779,1780. Introduction. 1781-1785. Habitual Drunkenness. 1786, 1787. Drunkenness with Wasting of the Estate. 1788-1792. Gross Neglect of Duty. 1793-1802. Refusing to Maintain, being of Ability. 1803, 1804. Uniting with Shakers. 1805-1809. Conviction for Crime — Imprisonment. 1810-1813. Absent and not heard of. 1814, 1815. Gross Misbehavior and Wickedness. 1816. Desertion and Adultery. 1817-1822. Desertion and Living in Adultery. 1823, 1824. Living in Separation. 1825. Public Defamations. 1826-1828. Offering Indignities. 1829-1832. Sodomy. LII. Divorce at the Discretion of the Court . 1833-1841 VOL. I. — I INTRODUCTION EXPLAINING THE NEW SYSTEM OF LEGAL EXPOSITION, All truth connected with man's earthly existence and progress is, it is but repeating what has been expressed many times to say, simple, plain, and certain to the unperverted understanding that takes cognizance of the elements whence it is derived. So that lack of knowledge is merely lack of seeing. And the only reason why Solomon, the wisest of men, did not bring his gold from Opliir to Jerusalem in steamers, build a railroad to Joppa, and light his temple with electricity, is because he and others did not " happen " to think of a few palpable little tilings which all would have accepted had they occurred to their minds. It is far short of the whole truth to say that this overlooking of things, which keeps man in darkness, and explains his slow progress toward the light, is not limited to the natural sciences, but extends likewise to the law. Beyond which, perversions of the just and wise doctrine of stare decisis have wrought, and con- tinuously from day to day they are working, disasters peculiarly their own to our otherwise beautiful and harmonious jurispru- dence. So that Justice sits among us, not with unobstructed vision taking into the one view the whole of her laws, but from partly bandaged eyes looking at them in detached parcels, never seeing all, and giving out her decisions too frequently in a medley of discords. This evil is, I believe, universally acknowledged. And no one doubts that its call for a remedy is loud and imperative. The proposed remedy almost universally popular in England, and assumed to have taken captive all the " best minds " of our own country also, is to fit the bandage more perfectly to the eyes, and put an end to all looking and all seeing by an inflexible statute XX INTRODUCTION. termed a code. In contrast to which, this " new system of legal exposition," now about to be explained, is offered. The two remedies are equally radical and revolutionary. And they are the two only ones of which I have any knowledge, not meaning to affirm that in the unseen future no third remedy will be pre- sented. The one may be termed the remedy of darkness; the other, that of light. The one is the obliteration of sight and reason, the other the clearing of the vision and the perfecting of the understanding. The one consists of transmuting into inflexible statutes the imperfect medley which a half-banda^d sight has discovered, so that no error shall hereafter be cor- rected ; the other leaves the correction to a clearer reason, whether upon the judicial bench or in the legislative halls, as the exigencies of an ever-opening and progressive future from time to time dictate. It is not proposed in this Introduction to quarrel with the remedy of codification, but to present the new one in contrast to the old practice of shutting the eyes and pronouncing what is not seen to be the offspring of stare decisis. I shall begin by stating in brief what the new system is. Then will follow various particularizations, — as, explanations of the need of the new, the importance of abandoning the reason- ings of individual judges and text-writers for those of the law, the advantages to the practitioner of substituting in his practice the new system for the old, elucidations of my own uses of the" new system in legal writings, and concluding with some views specially practical. But these divisions of the subject will not be closely adhered to. The expositions under each several head will cast forward and backward their light over the others. I. What in Brief is the New System. In the Preface, in a paragraph beginning on the first page of it and concluding on the second, is a statement which, not requir- ing repetition here, is believed to be accurate for the present pur- pose. The practical procedure under this new method will be in form somewhat flexible, and vary in some degree with the particular quality and habits of the mind employing it. But the following formula, which assumes that the reader is wholly unin- structed on the subject, will be adequate and effective for one who finds no mental difficulty in its use. It demands a good EXPLAINING THE NEW SYSTEM. XXI deal of labor, but seldom in anything can highly beneficial results be wrought out without work. Lay before your thoughts the exact question, in form and out- line clearly defined. Beside this question place all the facts and all the considerations connected therewith. Be sure to omit nothing. Even a slight omission may lead to a miscarriage of the whole problem. Carefully examine every fact, scrutinize every consideration, and especially avoid the common error of leaving out of the contemplation what appears small. Having proceeded to the end with these accumulations and examinations of things, go over the whole ground a, second time, retain in your problem nothing for which there is no sufficient foundation, and cast aside whatever is discovered to be irrelevant or unimportant. In all this you must let yourself completely down from the excel- sior up-scream described in the Preface, and look more to what is simple and common than to the unattainable mighty. Cast out from your mind all preconceived opinions of the particular question. Put yourself in the place of the law, think as the law thinks and not as you individually do, breathe tlie law's atmos- phere, and utter the law's reasoning. The remainder of the process will give you no trouble, and consume little of your time. If you have the legal aptitude of mind, and a fair legal education, so that you can perceive the force of a legal argument, the one only result of your investigation, inevitable, certain, and never to be questioned by any judge whom you can entice into an actual looking into what you show him, will now flood your understand- ing like the sun in the morning. You cannot habitually pursue this process and be accepted either by the community or by your professional brethren as a " great man " or " great lawyer." There are several reasons for this, a sufficient one. is that it affords you no " great occasion " wherein to show your powers ; since, by it, the whole question has been rendered plain and simple. There is no such thing, either in the law or in any other department of thought, as a "great argu- ment which adheres exactly to tlie line of truth. What has no fog in it, what has no wind puffing it out, is never accepted by man as great. Whether it is possible for you to descend at times to the valley of truth, and at other times to go screaming up the hill, is a question upon which I have before me no data for an answer, and it would be useless to express a mere opinion. xxii INTRODUCTION. You need and you ask no suggestions from me as to avail- able methods for thinking of everything and omitting nothing. I have lived in the world more years than most of my readers, and I have seen a great many men, though not ,so many as have some others. But I never met a man, and I do not think any reader ever met one, who was not conscious that his thoughts extended to everything worth thinking of. So this part of the subject may be set down as duly finislied. II. The Need for the New System. The last paragraph refers to a case wherein the reader is con- templating himself. We now turn to the inquiry how truth com- pels us to contemplate others. A mere dogmatic answer to this question would not help the elucidation. Or if I should explain that on a particular occasion the practitioner or the judge saw something important, and on another occasion overlooked tlie essential thing, we should merely arrive at the point wliere we began. For all admit, what is famil- iar to every one, that to err is human, and that to get some things right is human also. Let me, therefore, draw illustrations from more than mere isolated, private instances. There is stated in these volumes a case admirably answering this demand. As appearing in tlie English reports, it is termed the Lauderdale Peerage. ^ In my text and in a note, I gave some explanations of it,^ with a not important reference to a Scotch report under the name of Maitland v. Maitland, and with added facts and extracts from what is within my personal knowledge and possession. We begin by ascertaining from the reader whether or not he is the father of a boy. Well, you are. Now, if you believe the spanking-end to be the one at which the ideas enter the boy's understanding, would you not spank him should he stand beside a haystack and wail, with salt water running down both cheeks, because he could not get upon the top of the stack when, to his knowledge, there was on the other side of it a ladder reaching to its very peak ? Or, if you yourself had occasion to go to the out- lying hamlet of Lowflat, but between you and it there was a morass you could not penetrate, would you not spank yourself, then lie down in sackcloth, should you be caught spending a for- 1 Lauderdale Peerage, 10 Ap. Cas, 692. 2 Vol. I. § 1125, 1126 and note. EXPLAINING THE NEW SYSTEM. XXlll tune in the vain attempt to make a road through tlie morass, when you knew tliere was an open way to the hamlet of Highup, and from Highup it was but a half-hour's easy drive to Low- flat ? If, while sitting in your office pondering these things, a member of the John Bull family should enter to consult you, how would you conduct yourself ? He states as follows ; " There is in my family a case of great difficulty, and we wish upon it an American opinion. An ancestor was married in New York City in 1772, and if by the law prevailing then and there an informal interchange of present mutual consent to marriage constituted matrimony, I am an earl and a rich one ; otherwise, thei'e are entanglements of law and fact, and I may lose earldom, lands, money, and glory. We know on our side of the Atlantic that in 1800, only twenty-eight years later, the mere interchange of con- sent constituted marriage in New York. But, you see, that does not help us. No matter what was the law in 1800, we need to know what it was in 1772. So we tried the morass of history, endeavoring to trace the law through the obscure ages, from the first landing of white men in New Yoi'k, down to 1772. But thus far we are unsuccessful. Can you lift us out of the mire ? " Thoughts of the haystack, of Lowflat, and of Highup, all in proximity to the morass, come to your aid. So you reply : " New York was settled and civilized before 1772, and it remained civil- ized until after 1800. There was a legislature in the State, there were courts, the arts of writing and printing were known and used, legislative and judicial records were kept, and all are as open to us as are your legislative and judicial doings in England during any past twenty-eight years. Besides, we follow the rule which we brought from your English law, that a condition of things once shown is presumed to continue, and this rule works backward the same as forward. Therefore the New York mar- riage law is presumed to have been in 1772 what you know it was in 1800. The printed books show no change between those dates. There is not one chance in a million that those books are wrong, but at small expense you can avoid all possibility of mistake by having the legislative and judicial records searched." " Well," replies your client, " that is all plain enough ; I knew it myself, only I did not happen to think of it. What shall I pay you ? " " Five pounds." " Five pounds for such an easy answer ! For the same money English counsel will answer you a question ten times harder." XXIT INTRODUCTION. But not in England, not in Scotland, not in the United States, before the topmost lawyers of all which three countries the ques- tion was carried, — not in the Scotch Court of Session, — not in that high tribunal the House of Lords, wherein the greatest of all the judges sat, debated, and decided, after listening to the most eminent American lawyers testifying as experts, did any thought of the boy and the haystack, of the man and the morass, of tracing the legal history upward through the light instead of downward through the darkness, or of the presumption that what is law to-day was such yesterdaj', intrude upon the profun- dity of the legal contemplation as the question sank down, deemed impossible to be answered, out of juridical and judicial sight ! And here we learn something of the excelsior cry and the banner as pointed out in the Preface. There is no excelsior and there is no banner for any lawyer who practises, or any author who writes, on "the new system of legal exposition" we are con- sidering. There are for the practitioner a rush of business and money, and for the author there is — well, not money, but some- thing which ought to be deemed better than money and fame combined, the consolations of duty done and of benefits conferred ; and pretty surely there will be what is adapted, if he is pious, to stimulate his aspirations for the golden home " where thieves do not break through nor steal." For in this illustrative case, you, if consulted, might have obtained your five pounds, which would have come with a grunt and a grumble ; but no glory-halo would have settled around your head. Everybody in the three kingdoms who heard of it, not one of whom had been able to discern the simple truth till you told him, would have pronounced the ques- tion too plain to trouble even the youngest apprentice in the law. Of course, all would see at a glance that there was not a particle of legal ability in the answer ! And the opposing side would have jielded to your opinion, and there would have been no liti- gation for anybody to reap glory in. No growth to the fame of American lawyers traversing the ocean to appear in the House of Lords ! No banner ! No scream of " Excelsior ! " by anybody ascending a hill ! The reader who would like further illustrations should turn to the Index, and under the words " Not Thought of " he will be referred to considerable numbers ; and still others will present themselves through the remaining parts of this Introduction. EXPLAINING THE NEW SYSTEM. XXV A common form of this overlooking of things by our lawyers consists of one's arguing from a foundation of assumed truth which at the same time he knows not to be truth, and of accepting' from others as sound like arguments which he knows to be un- sound, and even of being convinced by them ! I do not propose to go into this part of the subject at large, but simply to refer in gen- eral terms to what we are constantly hearing in advocacy of codi- fication. Thus, a lawyer who feels bound to believe in it because all the best minds do, and who knows that the English decisions since the Revolution and the decisions of the American courts other than his own are of no authority in his own State, counts the volumes containing those non-authoritative decisions, and tells us that his court cannot decide a question until it has looked through all those volumes, therefore that this Herculean process must be rendered unnecessary by codification, else we shall all slump ! Another, perfectly aware that statutes are the hardest law existing to understand, that the brief Statute of Frauds has cost millions in the imperfect progress which the courts have thus far made toward interpreting it, and that to cover any subject by a statute is to muddle it, demands that all our law be made statutory so as to enable non-professional people, who will seldom read any law-book and never a book of statutes, to know, what they can learn from no lawyer under the changed state of things, just what the law is, so they may regulate their conduct without consulting lawyers, or bringing others or beiug brought by them before the courts ! III. The Importance of Abandoning the Reasonings of Individual Judges and Text-writers for those of the Law. Law can be made only by methods and persons authorized. Not even can kings, by simply standing up and declaring a thing to be law, render it such. A judge whose official function it is to determine the effect of the law upon such facts as by due steps ai-e laid before him for the purpose, is as powerless to create law as any other member of the community. Men are born into an atmosphere which they did not create, beside streams of water already flowing, and among other things equally indispensable to their life. Without these, their physical existence would be impossible. And their intellectual and social existence would be to the same extent impossible without another XXVI INTRODUCTION. thing which God created for them; namely, reason. It is the guide for each individual man, and it is the same for associated man ; in other words, for the State. We take all these tilings, thus provided for us by God, and use them as our own. We have some power to modify them, but this power has limits. Each man makes or should make reason his guide. Yet there is no man who does not, with absolute pro- priety, have more or less seemingly artificial rules for living. The same is true of that community of men which we call the State. The reason which God has furnished them for their government they term law. They claim and they exercise the right, and within due limits it is just they should, to define, modify, and extend this law by rules which apparently proceed from them- selves. Still the original reason thus given by God constitutes the body of the law ; just as His ocean, however man may con- struct dikes, breakwaters, wharves, and other like things in it, remains the same ocean it was when first it rolled alone before the eye of its Maker. Now, bearing in mind the distinction between the private reason which is the guide to the individual man, and the public reason which constitutes the law, let us proceed. The reasonings of individual men differ. And this is just as true of the men on the bench, otherwise called judges, as of private citizens. There- fore it is impossible that the reasonings of any one man, or of any quorum of judges, not speaking of the law's reasoning which it is competent for the one or for the other to utter, should consti- tute the law. Those who put forth, these individual reasonings properly regulate their own actions by them, but they cannot by them rule the world. The reasonings which regulate social man under the name of law ai-e necessarily, hot those of any one man or any dozen men, but the reasonings of the law itself. Indeed, there is nothing which we may assume to be better known by lawyers, certainly nothing more elementaiy, than the distinction between the law's reasoning and that of a judge or text-writer. True, in the much-quoted words of Powell, J., uttered in the celebrated case of Coggs v. Bernard, " Notliing is law that is not reason." ^ But whose reason ? Not mine, not yours, not that of a judge whose function it is to administer and not make law, but it is the reason of the law itself. If it was 1 Bishop First Book, § 80. EXPLAINING THE NEW SYSTEM. XXVll the reason of one man, it would be equally that also of another; the reasonings would differ ; and we should have as many an- tagonistic laws as men, which would be equivalent to having no law. It would not seem possible that this distinction, this main pillar in our system of technical law, should be otherwise than among the first things taught to every law student, whether in an office or in a law school. Yet from a law-school student I have before me a letter from which I quote as follows : " When I first read the Preface to your ' Contracts,' the distinction there taken between the ' law's reasonings ' and the reasonings of au- thors seemed to me a distinction without a difference. I tried very hard to understand your meaning, but failed. When we started ' Non-Contract Law,' and I saw the notes to sections 839 and 976, the scales dropped from my eyes, — I saw the light. I expe- rienced a true and genuine revelation." Were I asked to state in terms the distinction, it would be that all reasoning, whether yours, mine, or the law's, proceeds from premises which are assumed to be conceded, to conclusions which the mind is presumed to accept as necessary resultings. When a man reasons as from himself, his premises are what his individual understanding discerns to be just, and his conclusion is the de- duction whicli the same understanding draws thei'efrom. When the law reasons, its premises are what itself has established, and its conclusions, commonly but not necessarily the same which an individual mind would reach, are the response of its own special and cultured nature. When you express the law's reasonings in distinction from your own, your premises are those which the law has established, whether you deem them just or not, and your conclusions are those which the law draws, whether you individually approve or dissent. So that your reasoning is one thing, and the reasoning which you discern to be the law's is sometimes a different thing and at other times the same. A good illustration of the distinction may be gathered from a comparison of our two chapters on Fraud and Impotence as im- pe'diments to marriage. We should bear in mind that the law cannot be and is not one thing under the title Fraud and a contradictory thing under the title Impotence. The titles of the law are mere authoi''s work, the law has no titles. Chief-Justice Bigelow lays it down under the head of fraud that a woman who XXVlll INTRODUCTION. has caused herself to be made pregnant with child has thereby " incapacitated herself from making and executing a valid con- tract of marriage" with a man kept in ignorance of the fact.^ Xow, whatever be the law's idea of this conduct as fraud, it, long before this eminent chief-justice spake, settled, under what legal persons have classified as impotence, the premise adversely to what lie thus stated ; namely, that, on the contrary, the only sexual incapacity for marriage is the inability for copula, that for even this to avail it must be permanent and incurable, and that the party's fault in creating the incapacity has no bearing on the question.^ So this reasoning by the lips of the learned judge is not the law's, but his. Opinions may differ as to which of the two reasonings is the wiser, but no one can contend that the judge expressed the law's reasoning ; it was his own. In the notes referred to by my student correspondent, there are other illustrations of the distinction, and still others may be found in the present volumes.^ Indeed, the cases in which our most learned judges unthinkingly set down their own reasonings for the law's are very numerous. And they are among the prolific sources of the discords and confusion in our books. Partly to repeat, no man who deals with the law, whether as a practitioner, a judge, or a text-writer, has any just right to mingle with his work reasonings of his own, such as would be highly proper for a legislator, or for an advocate addressing a legislative committee. These private reasonings, introduced by banishing the public ones properly termed the reasonings of the law, are the sources of the errors and the confMcts which so mar what is some- times called our judicial system. It is because of these, and not in any degree otherwise, that men who ought to know better stand up and denounce our common law as a chaos. If there is a cliaos, the elements of it are not of the law, but they are the private Babel which men have no right to utter where the law is speaking. "Whoever will denounce the departures from the com- mon law, the perversions of it, the wrong-headeduess which pre- vents others from writing it in the beauteous and harmonious system which truly it is, will confer on the community a blessing of untold value. 1 Vol. I. § 489. '^ Vol. L § 490, 764, 777, 786, 788. 8 For example, among the various places, consult Vol. I. § 130, 131 ; Vol. 11. § 1650-1632, and the long note to § 1632. EXPLAINING THE NEW SYSTEM. XXIX Should these private reasonings cease, and the. reasonings of the law everywhere take their place, there would no more be anything which could properly be termed judicial discords. And still it would be true that there would be diversities in the laws of the different States and countries. Among tlie common-law people if not among all, even the then purified rule of stare decisis would create dissimilitudes, and the differing statutes of States would produce divergencies, but these would be only incidentals. Truly viewed, the ocean of legal reason — in other words, the ocean which we term law — would still be what it was at the creation. It would be the same on the continent of Europe, in England, and in the American States. And the distinction between the civil and common law would appear simply to be, what it truly is, that the breakwaters, wharves, and other similar things are not in their shapes and dimensions alike. IV. The Advantages to the Practitioner of substituting in his Practice the New System for the Old. When a judge follows his own reasoning instead of the law's, it is ordinarily because the law's reasoning does not occur to him. A proper enlightenment from the bar would prevent this. I do not mean that a mere correct statement of the law to the court would always suffice ; because, by reason of inattention, of preju- dice, of some temporary mental obliquity, or of the misapprehension of some connected thing, the judge might fail to take duly into his understanding what was duly expressed. And it is a part of the practitioner's skill to overcome this sort of obstacle. But assuming the practitioner to possess this skill, if his re- tainer is on the side which ought to prevail, a resort to this new system will render success certain. Ho might succeed otherwise, but on this method there can be no failure. If my reader were a layman, with the common prejudices, he would smile at the next and more important reason ; namely, that practising by this new system would prevent the lawyer from turning off good cases which he ought to accept, to the overthrow of justice, and to leanness in his own pocket. I hesitate to state my own belief of the extent to which this is done, because it will seem extravagant. But with what appears to me to be absolute knowledge, I can say that if any one of the numerous lawyers who are starving, crying to heaven for business and cursing earth XXX INTRODUCTION. for not giving it, would adopt the new method, being located in a place sufficiently populous, he would have enough of uniformly successful practice to support himself and any family which our system of monogamy would permit, from what would float to him of cases which the more eminent practitioners had rejected because wrongly apprehending that they could not be made successful. There are within my possession facts which to me render this statement absolute truth. To rehearse them here would occupy too much space. It does not require eminence, or superior ability, or more learn- ing than any young man ought to possess before he is admitted to the bar, to make success in practice certain if conducted on the system here recommended. And what ought to be deemed of importance, he will in this way become truly helpful to the multitudes who consult him, and a blessing to the community. He will not tell men that the law gives no redress for their wrongs if truly it does, or that their knavish propensities can be carried out in a particular way if they cannot be. He will diminish litigation, and make that wherein he is employed successful. V. My Own Uses of the New System in Legal Writings. As explained in the Preface, the work here presented is not written in distinct departure from my own preceding methods. The system has been a growth ; I began it in my practice without at first knowing that my elders and superiors did not also pursue it, and carried it thence into my first law writing, which was the first edition of " Marriage and Divorce " in one volume. So that in substance the method at first devised has been con- tinued, yet with gradual improvements in its execution, to the present time. The books have varied greatly in prolixity or condensation, but except as each new book or new edition has been better executed than its predecessor, no one is more dis- tinctly than any other on this " new system of legal exposition." A condensed work can do little in the way of repeating things. Consequently when its author has once stated a doctrine with the law's reasons for it, the reader should remember the reasons throughout the subsequent illustrations of it ; they cannot be attached to each -instance and made thereof a part. Less fully, yet in a considerable degree, this is true also where the book is EXPLAINING THE NEW SYSTEM. XXXI more prolix. So that when one consults it for a thing he may find it stated as baldly as iu a digest. In which case he should look further into the expositions, and not drop his search until he has discovered the reasons ; for neither to tlie student nor to the practitioner is a mere digest point of any real value, indeed it is lumber in the brain occupying a place required for something better, until his understanding has duly connected it with the rea- sons whence it proceeds. And let me here add that any one who wishes gradually to weaken his mental powers, and especially to unfit himself for law practice, can find no other road so alluring to the destruction sought as to pack his library with books recom- mended for their immense collections of legal points without I'easoning, then read and remember them. When my first work appeared about forty years ago, many of our eminent legal personages had not been born. And we have great judges, the ornaments of the bench and of the age, who sent out their first excelsior cry from the arms of a nurse, with a detached diaper for banner, while my " Marriage and Divorce " was working its way into professional recognition. It is there- fore not complaining to say that in these later years I have ob- served some strange misapprehensions. Thus, in some kindly mentions of my labors in our law periodicals, too flattering to render a repetition of them in this place proper, my " Marriage and Divorce " is praised above all the others as accurately voicing the opinions of the judges, which is assumed to be the only just end of any text-writing, while regrets are expressed that in later works I have not always duly adhered to judicial expositions. Gentlemen who utter this sort of praise of the first work, and criticisms of the later ones, are not to be blamed for misappi-e- hensions which they could not entertain if all the facts were within their knowledge. It is as though they should commend their tailor for having made excellent suits of imported worsteds out of American jute bagging, and add their regrets that his recent productions from this bagging have been less satisfactory. From the beginning, praises of my books have been sufficiently abundant to satisfy any author, and by their side from the be- ginning also has walked the same censure, that I did not state the law rightly. And from the beginning both the praise and the blame have been sharp and pronounced. I have written no book wherein there was not set down something distinctly XXXU INTRODUCTION. conflicting with the pre-conceptions of a part of the profes- sion ; yet the something was always accompanied with what would convince, and in fact did convince, every man who was willing to look into the question so as to understand it, that the booli was right. And every complaint has arisen from the as- sumption that the old prejudice was just, and that it would be a waste of time to examine what your inferior, the author, had by laborious search, and probings of the law to the bottom, learned. The complaints about " Marriage and Divorce " were more loud and grievous than those about any other of my books. In a middle position in this respect, has stood my next production, the Criminal Law Series. This sort of complaint has been least of all about my last books, " Contracts " and " Xon-Contract Law." And the appreciation of the profession, as shown in the purchase of the books, has precisely accorded with this statement. Thus, though " Marriage and Divorce " had on its fii'st publication the field practically to itself, the two or three predecessors then on the market not being of a high order, and though the last two books had seeming competitors greatly valued by the profession, — the one on contracts in works of the same name, and the one on non-contract law in works on torts which covered a large part of the same ground, — the same number of copies which constituted the combined first two editions of " Marriage and Divorce " was sold of " Contracts " during the first eight months after its pub- lication, and exactly the same thing was repeated with " Non- Contract Law." I said " seeming competitors," because in truth there is no competition between any books written on the new sys- tem and those on the old. And never was a doctrine laid down in any one of my books, other than what was truly stated simply as held in cases cited, overruled by any tribunal that gave itself the trouble to understand it. And leaving out of view what are commonly termed subsequent growths, or augmentations created by new cases involving new classes of facts, the volumes here presented state the law throughout, precisely as forty years ago it was laid down in the original " Marriage and Divorce ; " and exactly the same thing is true of the other books followed by new editions. Each work has seemed to some to be aggressive and revolutionary, and each aggression and invited revolution has been followed and confirmed by the courts. It is quite immaterial whether or not I know, what every reader EXPLAINING THE NEW SYSTEM. XXXIU ■will discern, that there are in our profession men who will deem this statement of the facts to be shocking for its arrogance and egotism. Conscious that "of course" it is not true, they will carefully avoid the loss of time whereby a little looking would determine whether it is true or not, and give themselves over to the " fun " of denouncing. And for a high precedent they will introduce the case of our great exemplar Lord Coke, " not think- ing of " the two distinctions, that he was a great lawyer, wliile I am not, and an " excelsior" man, while I am not, who, on being elected speaker to the House of Commons, said : " I am untimely fruit, not yet ripe, but a bud ^scarcely blossomed. . . . Amongst so many fair fruit, you have plucked a shaken leaf." Whereto the Lord Keeper by royal command replied, precisely as the " keepers " to whom I am now alluding might condescend to do if I followed the precedent : " By endeavoring to deject and abase yourself and your desert, you have discovei'ed and made known your worthiness and sufficiency." ^ To proceed with these expositions : I admit that I have en- deavored not to falsify the cases, just as in the construction of the sentences I have tried to avoid harm to Lindley Murray and his successors, and with the aid of printers to spell the majority of the words in conformity to modern usage. But in the making of no book have I pursued the zigzag and disconnected ways through which the following of the cases in the manner I am praised for would have taken me. On the other hand, the method has been the lowly one of looking down into the law itself to the very bottom, reading in its crystal evolutioas its own reasons for its own being and fiowings, and transmitting what is thus discovered to the printed page. But how of the cases ? No writer, ancient or modern, has examined them more carefully, or more nearly all of them, or cited them more fully, than 1 have done. And I have recognized the fact that any writing of the law without the cases, or without a careful examination of them, would come short of the practical usefulness meant. The soul of the law is as abso- lute a thing as your soul, and your body would be fit only for the worms if the soul were fled ; but the soul alone without the bodv could not even have an abiding on earth. So I have incarnated the law in the cases as far and as fast as they could be pressed into this service. But whoever has looked into our jurisprudence 1 1 Campbell's Chief Justices.Aiu. ed. 254. VOL. I. — C XXXIV INTRODUCTION. knows that a part of the cases, and especially a part of the dicta of the judges therein, are alien to the law itself ; and that just as our codification friends claim, all the cases combined, which wrongly they denominate the law, constitute a medley. Not dis- tinctively out of this medley, but, to repeat, out of the larger mass of our jurisprudence, I have endeavored to draw the law of each particular subject, and so to manage the cases thereon that, while I do not falsify them, they shall constitute as good an incarnation of the otherwise invisible law as their natures permit. There- upon, the book being published, readers who look and examine commend it. Those who without examination find. what on a cursory view appears contrary to their prepossessions denounce this part of it, if not more. The judges, whatever they originally thought, approve as fast as in the discharge of their official duties they are compelled to look, and do so look as to understand. And when the new cases confirming the doctrines of the book are cited in new editions, readers who are not informed of what went before express approval of what appears to them to be the author's deductions from the cases, some calling them skilful ; whereas the skill, if there was such, was that of the judges in accurately following the book. I deem this matter so important as to require, by way of illus- tration, a little descent into particulars. Yet to produce all the particulars, or even a hundredth part of them, would consume an amount of space that could not be spared. The large majority of the cases cited in the work here presented have been decided since " Marriage and Divorce " was originally published. By looking into these subsequent cases, and compar- ing them with the earlier ones and with the original book, the reader can gain an idea of the progress and its source. To illus- trate : turning to the first edition, and passing by the first chapter which is upon the ecclesiastical law, we find in the second chapter views of our American common law of the subject. The question had theretofore been little understood, and the not numerous cases upon it were to appearance a good deal contradictory. But those who examine the subsequent cases, most of which will be found cited in the present work,^ will discover that almost exclusively they have followed the path laid down in that first edition. The next original cliapter is upon the definition and nature of I Vol. I. § 115-149. EXPLAINING THE NEW SYSTEM. XXXT marriage. For the definition of marriage there given,^ there is neither any case nor any other authority cited. And the reason is tliat this defining had never been by anybody so niucli as pro- pounded. The definition in tlie present worii is in substance the same,2 and for it I cite thirteen American cases and two English ones ; and these are taken simply at random out of an indefinite greater number, being all that were deemed necessary. Prior to the new defining, executed marriage, the same as executory, was uniformly treated of as a contract ; the new defining denominated it a status, and as such it is now regarded and defined in all our American courts and largely in the English. Neither this defin- ing nor any other writing under " the new system of legal exposi- tion" created or professed to create law. On no possible system of text-book writing, could any author, even one of the most ex- alted rank, manufacture law. But there is a manner of writing text-law which draws all into harmony, connects part with part, and leaves the finished whole with a line of light extending through it unbroken from the beginning to the end ; and there are other methods the result whereof is chaos. Surely in this defining, which has changed the language of the courts through- out, I do not merit the praise now bestowed upon me for having, with nice accuracy, followed the judicial footsteps, and avoided misrepresentations of what the judges had before laid down. The next chapter in the old book is on void and voidable in marriage. It contains some illustrative matter, but I hasten to the one next beyond it, where there is a good deal that is signifi- cant. For example, in the Preface to the present work I state that I have not attempted " to answer, though I have considered, the many objections which might be suggested to the views here pre- sented." This was the plan from the beginning. Whether or not ideas fill the air with an invisible presence and viewless wings, as some deem, I am not here to inquire. But while I was writing " Marriage and Divorce," I had several attacks from an idea ap- parently of this sort. The books had stated, in a short way which was adequate for most practical purposes, that marriage may be contracted per verba de prcesenti, or per verba de futuro cum copula. Thereupon the floating idea would rap upon the brain and inquire, " If parties under an agreement to marry have copula, is not the marriage thereby perfected, so that a breach-of-promise 1 Bishop Mar. & Div. 1st ed. § 29. 2 Vol. I. § 11. XXXVl INTRODUCTION. suit cannot afterward be maintained ? " I knew that this sort of suit following this dereliction was common. Then the idea would add : " You see that the courts do not hold the parties to have been married by the copula, therefore you should declare the marriage per verba de futuro cum copula to be impossible." I could not tell how many times the brain received this sort of charge from the air. But the case would always right itself on a little reflection. The idea was of the sort that could not read. Reading in the books, I learned that what constitutes marriage is consent to it, not any mere formal doings. Even words of pres- ent consent are only evidence of marriage ; and where, as it some- times happened, they were given while the consent in fact was withheld, the courts pronounced that there was no marriage. And copula following a mutual promise was likewise but evidence. It did not constitute marriage, and it might take place as well with- out marriage as with it. If in a given instance there was the consent which made marriage, there would, of course, be no breach- of-promise suit. And this sv^it was maintainable, and practically it was brought, only when in fact, whatever the parties did, they had not consented to present matrimony. Such was the answer to the idea. Yet I clearly perceived that it was on its rampage, and that it would not rest until it had attacked somebody to whom the answer did not occur. Professor Parsons was at the same time that my book was going through the press having his book on Contracts printed at the same office. So the idea made a charge upon him, and it was effectual. ^ Whether the idea operated from the air or through Parsons's book, when still later it subjugated the New York and Ohio courts, I do not know. The whole matter is explained in these volumes.^ I stated in my first edition the doctrine as then everywhere held. I felt the strongest possible temptation to forestall this question, which I saw coming, by pre- senting the true answer to what I have termed the idea. But I perceived that I should thus depart from the necessary plan of the work. If I had made the explanation, the courts probably would not have read it ; indeed, I stated enough to prevent the mistake, and this they did not read. In editions following the New York and Ohio blunder I pointed it out, and showed what the correction 1 2 Pars. Con. 79, 80. This reference is to the seventh edition ; I have not before me the first, bnt I remember seeing this matter in it. Whether or not there have been slight changes I cannot say. ^ Vol. I. § 369-377. EXPLAINING THE NEW SYSTEM. XXXVU should be, and whenever the question has since come up in other tribunals they have followed my book. Looking among the further illustrations that occur to me, I select one for the simple reason that it will require a little letting down from what more or less of my good friends will term this " high brag." The case of Brook v. Brook, which is explained at some length in the first of these two volumes,^ travelled through the English courts, ending in the House of Lords, after the original publication of " Marriage and Divorce." Those who read the Massachusetts case of Commonwealth v. Lane ^ in connection with what in the later editions of this book I said of Brook v. Brook, and with whom it is fundamental truth that every idea in the law originates with some judge and is impossible to have its beginning with a text-writer, will know, of course, that the dates which he sees are the blunders of a printer, whereupon he will commend me for the fidelity with which I extracted and in some measure amplified upon the views of the Massachusetts tribunal. Much of the argumentation in the House of Lords consisted of expounding the statutory words " God's law," and applying them to a marriage in a foreign country, contrary to the rule that stat- utes in general terms do not have an extra-territorial force. The Massachusetts Court showed that, aside from this rule of interpre- tation, the English courts had been constantly and in various circumstances giving to this term " God's law " a very different meaning from what in Brook v. Brook they assumed for it. My exposition of Brook v. Brook showed the same ; that of the Massachusetts Court came in fact afterward, not before. So the praise of accurate following was wrongly bestowed on me. But there was one thing which I had failed to think of ; and if this court had thought of it, less praise for the following would have been due, it would have been less perfect. It was that from early times the law had been settled in England, and had become fun- damental in the common-law system, and all our American courts had acted thereon, that, besides the general principle of the non- extra-territorial force of statutes, a marriage statute in particular, of which the one expounded in Brook v. Brook is but an example, cannot be extended by the courts to include a foreign marriage. I have in the present work supplied this omission, and I regret that it was not by me " thought of " before. But with the knowl- 1 Vol. I. § 871-879. 2 Par 9 of note to Vol, I. § 878. XXXVlll INTRODUCTION. edge of this oversight comes the consolation that no man can with truth say that I claim infallibility in writing the law. Let me simply add that this omission constituted no part of " the new sys- tem of legal exposition ; " it was an accidental slip backward into the old and common method. But I see that these pages are filling up apace, and much that I meant to have said must be omitted. Those who pursue the investigation with no lead from me should take careful note of dates, and should otherwise avoid going astray. For example, largely the judges in following my book make ample references to it ; yet some, while referring to it for what is unimportant, extract the substance of the important matter as their own ; others make to it no reference. A metiiod less common consists of setting down, with a citing of the book, some proposition of law which I had deemed erroneous, as though maintained by me, then taking my refutation of the error and writing it as the view of the court. Of course, it is seen that, as in fact it occurs, in my next edition this judicial exposition is referred to as sustain- ing my text. Thereupon, as of course also, I receive praise for the accurate following of the judicial doctrine even to the backing out from my former position. I do not think it necessary to be more specific about this matter. This general disclaimer of per- sonal merit in this sort of following must suffice. Beyond which, I get other undeserved credit, an instance whereof is stated in these volumes.^ A judge takes his idea of a case from an imper- fect digest instead of reading it. He discovers some criticism of it in one of the editions of my book. He holds the book in such high estimation that he deems it impossible I should not in a later edition correct the error. So, in some way, he concludes that I did correct it, and in his opinion states that I did, — the fact being that when I wrote the first edition I read the case in- stead of the digest, and that what I said about the case stood exactly as it was originally written in every subsequent edition. On the whole, I have received more real kindness from the courts than 1 deserve, and but for their kindly mention of my book, as from time to time opportunities offered, it could not have attained to any standing in our legal literature. Only one instance occurs to me for which I do not now see the way to give sincere thanks. It was in connection with my Criminal Law Series. A very sim- 1 Vol. II § 1386, note. EXPLAINING THE NEW SYSTEM. XXXIX pie question of law arose before a judge, absolutely settled in authority, and plain in principle. No judicial opinion upon it was worth reporting. His opinion consisted of saying that I had stated the law directly contrary to what I had done, and that another author whom he named, mistakenly supposed by some misinformed persons to be a rival, had given the law correctly. So the entire value of the opinion consisted of a slander of one book and a puff of another, and it now adorns a series of American Repoi-ts! More fully to illustrate the difficulty of inducing men to look at what you write down as the law, and their consequent abuses of you for having, as they supposed, stated the law incorrectly, I give a little history of one of the questions which has occupied a con- siderable number of sections in the present volumes. Mr. Reed, in the course of some observations on " Marriage and Divorce," has the following : " One of the revolutions made by the book is so striking that we will subjoin the account given of it by Hon. William Lawrence. ' When the book . . . was written, it was a disputed question whether, if one of the married parties was living in one State and the other in another, there could be any valid divorce between them. A plaintiff could not go into the State where the defendant resided, and there obtain a divorce, because, among other reasons, the States had all, or nearly all, provided by statute that the plaintiff in a divorce cause must be a resident ; and generally it was required that the residence sliould have continued for a specified time. The judicial dicta, however, had been almost uniformly to the effect that in such a case there could, as a general thing, be no divorce which would be recognized as valid out of the State in which it was pronounced. Indeed, the reasoning had been patterned on that in the supposed case conducting to the result that parties could divorce themselves at pleasure. Marriage, it was said, was a contract ; consequently it would violate the first principles alike of law and of natural justice to hold a party bound by a decree dissolving his contract, rendered by a tribunal to which he was not personally amenable ; to which he could not be summoned, and in which he did not appear. Drawing in line with a mass of dicta to this effect, there was at least one direct adjudication, and those who do not distin- guish nicely between dicta and adjudication claimed that there were many more. Opposed to all this, on what Bishop deemed the xl INTRODUCTION. right side, was Harding v. Alden, 9 Greenl. 140 ; but the reason- ing, however worthy in itself, had failed to be convincing to the extent of stemming the adverse stream. Bishop adopted a course of reasoning entirely original with him, and whicli has satisfied every legal person who has examined it sufficiently to understand it. There are many persons, who have not thus carefully exam- ined it, who think the whole doctrine erroneous in law and morals. But the current of decision has changed, and it is now all one way. The adverse adjudication has been overruled in the very court in which it was pronounced, and the Supreme Court of the United States and the courts of the various States have adopted the doctrine announced by Bishop. And whenever the question has been reasoned out in any court, his line of argument has been pursued. One of the early cases which arose after his book was written was the Rhode Island one of Ditson v. Ditson, 4 R, I. 87, and the opinion was delivered by the late Cliief-Justice Ames. He went into the investigation, doubtless with no pre- possession in favor of the side which he espoused ; but the opinion with which the investigation terminated is an admirable repro- duction of Bishop's argument, accompanied by due references to his book; It has ever since been regarded as the leading case on the subject.'"! Now, to continue the history of this question, and to show how obstinately a part of our lawyers refused to look into what they were ready to condemn, I refer to a note to one of the sections of these volumes.^ It embodies a quotation from writings of one of the most eminent lawyers of our country, formerly chief -justice of his State, of whom only praise can be spoken. I knew him well, and I had friends who knew him better than I. And if he had not ascended beyond the reach of the evil tongue, still there would be no tongue to speak evil of him. Yet we cannot but mark with what vehemence he denounces the doctrine which is now held by all our courts, and placed beyond reversal by de- cisions of the Supreme Court of the United States upon the effect of our National Constitution. He says nothing of my book by name ; there was no need for this ; a preceding editor of the book of Story which he was editing had stated in a note the con- clusions set down in mine ; these, and all references to it, he brushed away, leaving the page undefiled, then substituted what 1 Eeed Am. Law Studies, § 545. 2 Vol. II. § 152, note. EXPLAINING THE NEW SYSTEM. xU I have quoted from him. And I trust all my readers will concur with me in admiration of his sturdy and fearless defence of the truth as he deemed it to be. But no one can examine this quo- tation without perceiving that he had no more idea of what was the doctrine he was denouncing than if it had never been written. For example, he cites cases as against it which were not so in fact, or were even in its favor, and by implication states as parts of what he deems the evil views those which no soul of man ever maintained. Assured in his own mind that there was a rat, he vowed to bring down upon it a blow which would fell it before it had time to escape. Nor was he alone in the stern determination to put an end to this new form of error. The like zeal cropped out variously in our books, in our periodical literature, in friendly communications among lawyers and judges, and in all the paths of the law. And all was because some knew without looking more than others could learn by any amount of examination ; so instinctively they perceived that it would be folly to look, and they did not look. I cannot but here add another instance, though it will be ob- jected that, as to it, I am not " out of the woods." There was never a time when I was not in the woods about something, and it may as well be this particular thing as any other. And it does not require a prophet to say that so long as the present jargon in our courts continues, no man can write any legal treatise on what- ever plan without either rendering his book the mere echo of the jargon, or uttering what a part of those who do not look into it will pronounce to be abominably wrong. Properly to set out the matter in hand will require both writer and reader to become very simple-minded and very lowly. Any attempt to ascend to the peak of mighty thought, or even a cry of excelsior from the halfway house up the hill, where we are supposed to stop for luncheon, will spoil all. If you have a black marble and a gray one, and a law is passed providing that the man who steals the black marble shall be hung, and he who steals the gray one shall be sent to the State Prison, and I am indicted simply for the stealing of your marble, there being no intimation which of the two marbles was meant, it being my right to be tried on an allegation found by the grand jury and affirmed as true by the petit jury, can I be hung if only the petit jury say that the black marble was the one stolen, and I was the xlii INTRODUCTION. thief ? Is an averment that I stole your marble a charge that I stole the black one ? "Simple-minded and lowly persons, sucli as you and I are now endeavoring to be, would answer these ques- tions in the negative. Let us next suppose that there was a time when the law ma'de the stealing of either of these marbles pun- ishable by death. It is now changed. Does the abolished old law so live as to make an allegation that I stole your marble mean that it was your black one ? If we keep sufficiently humble and lie low enough, we shall answer this question also in the negative. If we clothe our intellects with the thunders of mighty thought, only a prophet can forecast the consequences. Again, let us suppose ourselves very little boys. You have a cent and a dime. I filch from you the cent, and you accuse me of having taken one piece of money which was yours. Do you mean thereby that it was the dime I took ? And will my older brother be justified in whipping you for having charged me with an offence I did not commit ? Once more. Seeing that a little girl is a great deal better than a little boy, let us suppose that the law makes it a capital offence to slap the little girl in the face, and imprisonment to do the same thing to the little boy. You are indicted for having slapped in the face " one little child." Is this a charge that you slapped in the face both the girl and the boy, and can you be hung or imprisoned according as the petit juiy find the victim to have 'been of the one sex or of the other ? A lowly mind would answer this question in the negative, but what an exalted one would say it is impossible to foretell. If a statute made it a hanging offence to assault anybody with a knife, and imprisonment to make a like assault with the fist, and you were indicted simply for an assault, should you under- stand the charge to be that it was an assault with a knife, and on conviction you could be hung ? Now, in most of our States there are statutes about murder, making the punishment of some murders death and of others imprisonment. These statutes are not quite uniform in terms, but a provision answering our present purpose is that the murder committed with " deliberately premeditated " malice aforethought shall be punished with death, and the other murders with impris- onment. Before the statute, there was a well-known form of charging a murder, and it did not contain the words " deliber- EXPLAINING THE NEW SYSTEM. xliii ately premeditated," or any other words 'not judicially settled to have only a narrower meaning. Since the statute, the excelsior legal mind has largely come to the conclusion that a charge of murder in the old form without the words " deliberately premedi- tated " is a double charge both of the deliberately premeditated sort and of that not deliberately premeditated; so that should the trial jury find the killing to have been deliberately premedi- tated, the accused man may be hung. This idea began among us with attempted interpretations of ambiguous statutes, and progressed with assumed adhesions to stare decisis. I have ex- plained in this Introduction that it is one of the fashions of law- yers to reason from premises which at the same time they know are not true, and yet with all their hearts to believe m the con- clusions. The consequence has been that the majority of our lawyers whether on or off the bench have come to believe in this startling absurdity. I have over and over again pointed it out, and some have been enticed into looking mto the question, and as often and as fast as they have looked they have seen the truth just as any unsophisticated little boy would do. The mighty reasonings whereby the absurdity is expounded and sustained are in forms many and contradictory, agreeing only in their common grotesque result. I cannot go into the question again here, hav- ing amply explained it elsewhere. I mention it simply to make conspicuous the truth that the one ever-present obstacle to the success of legal expositions upon the new system is the wide determination of the legal mind to resist the light and refuse to look. You cannot always tell whether or not another has looked except by examining the consequences of his looking. A judge, for example, may say that he has carefully considered my exposi- tion of a legal question, and the mere fact that he does not adopt it is no proof that his statement is not correct. Yet he may think he looked into it when he did not, and what he says about the effect of the looking may be conclusive that he did not. Only one instance of this sort now occurs to me. When I wrote " Criminal Law " the books contained various absurdities and contradictions about the effect of a larceny committed in another jurisdiction and the goods brought by the thief into our own State. The contradictions were sufficiently numerous and per- sistent to render it practically certain that nobody had seen the xliv INTRODUCTION. exact legal truth on the question.^ Yet the truth was in loj>al reason palpable, and it seemed impossible that any mind not too much grown should overlook it. Our criminal laws operate only within our territory. Here they are exclusive. Therefore one committing a larceny in another State can here be punished for it neither under our law nor under the foreign law. Moreover, just as the foreign law cannot come here to inflict its punishment through our courts, so also it cannot come here to prevent our courts from punishing any crime committed on our soil conti'ary to our law. A larceny is by our law any trespass to pei'sonal property done with intent to steal it. When a man brings jicr- sonal property from another jurisdiction into ours, we hold the ownership to be in the person who owned it in the country whence it came. The result is the plain one that when the thief, his intent to steal continuing, makes on our soil any asportation of the stolen thing, he takes and carries it away here contrary to our law, and is by our law punishable therefor. And all the courts that have looked into the question, as thus presented in the first edition of my " Criminal Law," have so held. But when the question was carried before the Ohio Court, the original theft having been in Canada, and my book was cited, the judges did not in fact look into it, though it appears to have been assumed that they did. Therefore they did not follow what in itself was so plain. " It is conceded," said the judge who delivered the opinion, " that in order to convict, the jury must have found that the goods were stolen by the defendant in the Dominion of Canada, and carried thence by him to the State of Ohio." The judge could not have said this if he had entertained even a dim idea of the reasoning of the book, unless, indeed, he was misled by a mistake which seems to have intruded into the case, as to the " taking " which the law of larceny requires. There is an illustration which I have hesitated about bringing into this Introduction, because to do the question justice more space would be called for tlian can be spared. The matter is a central one among many things of high importance to the public. I once projected a book on the subject, and collected the material for the writing, but I forbore because reflection satisfied me that to find readers it must proceed from an excelsior man, an able man entitled to respect, or at least one who had become some 1 See, for the expositibns, 1 Bishop Grim. Law, § 137-142, EXPLAINING THE NEW SYSTEM. xlv sort of " leader," whether worthily or not. And an unread book can do nobody any good. So my statements here will be in brief outline. We have seen in this Introduction that no man can become great in anything if he sees the exact truth relating thereto. For truth is simple in proportion as it -is exact; and, when made absolutely exact, it is too plain to be deemed worthy of the atten- tion of a great mind. So the utterance of it is never regarded as evincing greatness. And the ascent to fame is made more by combating darkness with darkness than by doing aiiytliing with the light. Two of the very foremost and most honored men of our country were John C. Calhoun and Daniel Webster ; and the very apex of the greatness of each was Calhoun's reasoning from the Constitution that secession is justifiable, and Webster's that it is not. That instrument contains few restraints upon the States, but in one particular it binds them as with iron. It pro- vides that the officers of each State shall be sworn to support the -Constitution of the United States, and that the United States shall guarantee to every State a republican form of government. Secession involves a refusal by the State to have its officers thus sworn ; hence any action of a State which causes them not to be so sworn deprives it of a " government " within the meaning of the Constitution, and compels the " United States " to force one upon it, and directs that it shall be republican in form. There is nothing either lofty or mystical about this constitutional provision, but to the simple mind the terms of it are as absolute and irrefra- gable, and as conclusive against the right of secession, as any words within the skill of man to devise. And what makes them strong is that to the precept they add the penalty, and require all the powers of the United States, both civil and military, to enforce it. Now, if either Calhoun or Webster had seen this, we should have had no Secession War to illustrate the mental might of both. Calhoun came nearer the true reasoning than Webster, yet his argument stopped just before it reached its true end. Webster's reasoning has found, so far as I know, not a single disciple. When our Secession War first became imminent, I had the curiosity, and I think I may claim also the patriotic desire, to learn what, without a leaning to either side, was tiie real teaching of our Constitution on this subject. Consulting the methods recommended in this Introduction, I found the teaching to be as Xlvi JXTEODUCTION. just stated. But I did not need to be told that though I was per- mitted to see, I had no power to impai"t the seeing disposition to others. Only a man of the first order, one who has cried excelsior a great many times, and has ascended far up the hill, could be heard through the din of a bloody strife. I printed what seemed desirable, including something in my law-books. Even that some- thing there was nobody to look into. Two or three gentlemen looked just far enough to write me opprobrious denunciations, but not far enough to learn, what they utterly overlooked, the fact that I did not make the Constitution. I remember a notice of one of my law-books, amply puffing it, but concluding with a reference to this matter, and saying that in the whole country there was not a fool of an attorney simple enough to give it the slightest consideration. A few of my friends looked into the argument and said, "Of course, everybody will see that; it is so plain that it is hardly necessary to make any ado about it." Among our honored senators was a personal friend who had climbed high up to the peak of the hill. When first I spoke to him on the subject, he had already expressed different views, which had been widely published. Full of cares, he could hardly be blamed for not looking into mine, and at first he did not look. One day, perceiving a certain turn of affairs, I sent him in brief my views, in a form suitable to be used as his own should he choose to do what he was permitted ; namely, use them. He did use them, expressed in my very words ; and the difference be- tween utterances supposed to proceed from a great man and from a small one was marvellous. The lightning of the telegraph took up the words, and they flew. What men would not look at before was convincing now. The country was carried ! The legislative power was carried ! And the Supreme Court of the United States, in the great case of Texas v. White, 7 Wal. 700, sustained the doctrine as it was thus expounded, though not quite every one of its applications was within the sphere of the facts, or con- sequently within the language of the court. Passing a little out beyond this topic, I crave the privilege of saying a single thing. Calhoun, Webster, Sumner, are three tall peaks around which the light of fame and glory will linger and gleam while the ages roll on. From the mountain range of our history are lifted no three peaks more unlike one another. Yet, not questioning the power of the Almighty, it is difficult to see EXPLAINING THE NEW SYSTEM. xlvii how even He could have wrought out certain great results affect- ing the destiny of our nation if not of all mankind, with any one of these three left out. If my opinions accord more nearly with those entertained by any particular one of them than with those of another, shall I therefore hate the one and love the other t Can any man say that one of God's instruments is worthy of praise, and another is to be denounced ? If I do not live to see the day when hate among us because of differences of opinion shall cease, let me give that day All Hail through the mists of the future ! Descending to topics which may seem inferior to some of the foregoing, and having acknowledged myself to be yet in the woods about the form of the indictment for the first degree of murder, I know of no others as to which my writings now lie under any serious suspicion of having departed from the true doctrine of the law, — some clouds and darkness which the unseeing had cast upon them being dispersed. And still I cannot surmise what complaints may have been made which have not reached my ears. Until T had nearly finished the writing of these volumes, I did not know that any lawyer had driven his head for battering-ram against one of the most impregnable walls in our common law of husband and wife in order to show a blunder in my book on the law of Married Women.^ I stated in another book^ that so far as I knew or believed no lawyer or law student had ever read " Married Women," all assuming that the subject could not be made plain by any text-writing; hence the sales had been but little more than might be expected from a digest. I was there- fore surprised at receiving from an eminent lawyer, whose name is familiar throughout the country, a letter correcting my mistake, as follows : " I cannot but think that you are much m error. As for myself, I read it with as much pleasure and profit as any law- book that I ever read ; and I tiiink that many others must have had the same experience. I have always regarded the work as being very remarkable for its systematic treatment of a subject' that from its complexity seemed to defy systematic treatment ; and I should much rejoice to see a new edition of it." When writing this Married Women book, I noticed that a considerable proportion of the cases, I should not quite like to say how large a proportion, were decided by judges who spake from minds 1 Explained Vol. II. § 1652, note. 2 Bishop Non-Cou. Law, § 537, note. xlviii INTRODUCTION. evidently not clear upon the subject. Hence the possibility or even probability that the blunder in pointing out an assumed blunder, just spoken of, may have found repetitions. In " Criminal Law," I had occasion to show that the modern case of Reg. v. Collins, Leigh & C. 471, in the English Court, was wrongly decided. Mr. Heard deemed it his duty to correct me, whereupon I stated my view more fuUy.^ Quite recently the Enghsh Court came to my relief by overruling this case, together with another which had been decided on its authority. Said Lord Coleridge, C. J., Reg. v. Collins, "in our opinion, is no longer law." 2 There is a great deal more which I should be glad to say under the present sub-title of this Introduction, especially as explaining how ill bestowed is the praise given me for accuracy as echo to the judges. When I have served as echo, I trust that I have done the simple work correctly ; when as fag, I have tried to be a good fag. But I should take no praise to myself if I had been foolish enough to step aside from the avenues to a successful practice, to assume the drudgery of either echo or fag. There are others to whom such work is congenial, and I do not disparage them for having made it their choice. VI. Some Views Specially Practical. Thus I have explained the new system and its workings, just as a mechanic would a machine which he had constructed. It would be right in the mechanic. The angels in heaven are said to be very happy, and it is claimed that our earthly ones are only a little less so. While the angels among my readers are joyfully weeping over my descent in imitating the mechanic, and are devising words of denunciation wherewith to coo me back to the good old ways, the other readers and I will together proceed. My sun is so nearly set that I can hardly be accused of looking out for an occupation if I invite the attention of the profession to the resulting benefits should they encourage the making of books on this new system. They would afford easy steps to the acquisi- tion of the law, and a landing where its practice would be pleas- ant and successful. They would end the codification controversy, ^ See, for the whole, l^Bishop Crim Law, § 741 and note. 2 Eeg V. Brown, 24 q'b. D. 357, 359. EXPLAINING THE NEW SYSTEM. xlix end the now-assumed necessity of consulting stacks of cases de- cided outside of youi- own State, end the process of dwarfing the mental powers by quiddities over points disconnected from rea- sons, give growth to the professional intellect, growth to jus- tice, and growth to governmental and national prosperity. The methods of procuring books of this sort to be written, and the need for them,*were in a measure pointed out by me in another connection.^ To state here every important consideration, or further to pursue the subject in this place, does not seem to be required. 1 Bishop Non-Con. Law, § 1327-1340. MAREIAGE, DIYOECE, AND SEPARATION. BOOK I. GENERAL AND FUNDAMENTAL. CHAPTER I. THE NATURE OP THE SUBJECT AND ITS POSITION IN THE LEGAL FIELD. § 1. 'Why these Preliminaries The minute deductions of the law, which determine the particular questions in litigation, — those after which the practitioners and courts are constantly in- quiring, — are but results of larger and more general doctrines and views. And these results vary or depart with their causes. Historically, indeed, judges may have decided cases without per- ceiving the larger doctrines whence their conclusions proceeded ; as men have shaken trees, bringing apples to the ground for their gathering, in oblivion of the law of gravitation. Yet, like gravi- tation, the larger doctrine of the law of the land has been present in every right judicial decision ; and, if the court has failed to discern it, still it has wrought out its result. For, in the law, and in the entire mental world, the same as in the physical, men judge, and wisely, of results, without passing back over the steps, or with mistaking the steps, of reasoning to their causes. The human mind, to keep it from too great wandering into error, is made so. Then reasoning, if it has not gone before, comes after- ward, to correct what is wrong, and strengthen what is right. Upon this sort of foundation, our common-law learning has risen, and our jurisprudence has become cultivated ; so that, at the pres- ent day, if we would render the law of any subject practically available, we must ascertain and keep constantly in view the VOL. I. — 1 1 § 4 GENERAL AND FUNDAMENTAL. [BOOK I. larger doctrines, or reasons, whence the minuter ones have pro- ceeded. And this is specially so of marriage, which differs from the other relations of society, and of its related and dependent topics. § 2. Individual and Public Good. — The rule of law in every- thing is simply a compromise between conflicting claims of indi- viduals among one another, and between the individual and the public good. No man has the absolute right to do as he will, either as against other men or as against the public. And in governments regulated by written constitutions, like those of the United States and the several States, the public demands upon individuals, as expressed by legislation, have their limits. But in construing the several rights and their limitations, we have to take into the account the nature of the case in contemplation ; as, in respect of some things, the public good is the overshadowing matter ; in respect of others, the private good, or right, or bar- gain, being in no antagonism to the public interests, properly directs the decision. Hence, — § 3. Legal Field. — We Contemplate the legal field, in regard to its productions, as varying in its different parts with the unequal influences, degrees, or sorts of public good or policy, and private right and interest, entering into the particular soil or ground, — in like manner as, in agriculture or horticulture, there is a corre- spondence between the crop produced and the seed and enriching substance in the land. Thus, — § 4. Illustrations. — Persons may contract about anything to which the public is indifferent, but they can make no effectual agreement to violate the law or public policy.^ If one sues another for breaking an agreement of the latter kind, and the public is not a party, still, for the protection of its interests, the court will refuse redress, but will render no judgment directly in favor of the public. Yet, if the agreement amounts to a crime, — as, to commit a murder, — the public by an indictment in its own name may enforce the penalties of the criminal law. And thus we come to another distinction in the legal field ; namely, between those cases in which the public has an interest to pun- ish a thing as a crime, and those in which its interest is so much smaller that the law holds the dereliction to be only a civil wrong. Now, — 1 Bishop Con. § 470-478. 2 CHAP. I.] NATURE AND POSITION OP SUBJECT. § 6 § 5. Marriage, Divorce, and Separation. — 111 respect of most things pertaining to this subject, it occupies in the legal field a place by itself. Nominally belonging rather to the civil depart- ment than to the criminal, its rights and interests are those of the public in a manner and to a degree unknown in the ordinary civil jurisprudence. On the other hand, marriage law is not in most things penal, so it is not a branch of our criminal jurispru- dence. But it is a matter more nearly of the civil sort wherein public interests overshadow private, — one which public policy holds specially in the hands of the law for the public good, and over which the law presides in a manner not known in the other departments. So that — § 6. Peculiar and Special. — The part of the legal field to which these volumes relate, is a peculiar and special one. And a knowl- edge and due consideration of what concerns this subject specially, in distinction from the rest of the law, are indispensable to an accurate comprehension of its several doctrines and rules. This truth the reader should take, into his mind at the beginning, and carry with him through every step of our progress. Thus only can he avoid error. The particulars will be pointed out as we proceed. 3 § 9 GENERAL AND FUNDAMENTAL. [BOOK I CHAPTER II. THE DEFINITION AND GENERAL NATURE OF MARRIAGE. § 7. Foundation Principles. — The foundation of the marriage law is the doctrine of ethics and of social science, that the sexes should not associate promiscuously, but "-pair off," to use an ex- pression applied to the birds of the air. This opinion is univer- sal ; to be deemed, therefore, as proceeding from the nature of man, and voicing the wisdom of God. Even under polygamy, fidelity to and among the family of wives is enjoined the same as is the more restricted fidelity in monogamy. A Christian mar- riage is the union of one man and one woman ; outside of which, all commerce of the sexes is forbidden, though, like other ad- mitted evils, iu is less severely dealt with in some countries than in others. But — § 8. Diversities. — In the minuter details of marriage, and of its dissolution otherwise than by death, there are considerable diversities of opinion and practice. We are to consider how the law is in our own country, and in some degree in the family of nations. § 9. Meanings of " Marriage." — " The word ' marriage ' is used in two senses. It may mean the solemnity by which two persons are joined together in wedlock, or it may mean their status when they have been so joined." ^ In like manner, the expression " agreement of marriage " denotes either a contract between par- ties to solemnize together a marriage at a future time, or the solemnization itself. The term " contract to marry " never points to an actual, executed marriage, but " contract of marriage " often does. We have, therefore, three things, first, an agreement to enter into a marriage ; secondly, an agreement of present mar- riage ; and, thirdly, the status of marriage, imposed on the par- ties by the law as the consequence of their agreement of present 1 Cotton, L. J. in Harvey v. Farnie, 6 P. D. 35, 47. 4 CHAP. II.] MAREIAGE DEFINITION AND NATURE. § 11 marriage, oftener expressed by the single substantive word " mar- riage." A failure to keep in mind these distinctions has led to not a little confusion in our law books. Once more, — § 10. Executory and Executed. — Not simply in marriage, but likewise in other things, there is a wide difference between an executory contract and one which has become executed.^ An executory contract of marriage is a mutual promise of the parties to intermarry in the future ; an executed, is their agreement, in due form of law, to be thenceforward husband and wife. It consti- tutes the performance of what the executory contract bound them to.. Then the law steps in, and invests them with its status of marriage; which differs as widely both from the agreement to marry and from that of present marriage as the agreement to build a house differs from the completed structure, or as the egg and incubation differ from the bird produced. Hence, — § 11. Executed Marriage defined. — Marriage, as distinguished from the agreement to marry and from the act of becoming mar- ried, is the civil status of one man and one woman legally united for life, with the rights and duties which, for the establishment of families and the multiplication and education of the species, are, or from time to time may thereafter be, assigned by the law to matrimony. So in substance the present author defined in his earliest and all subsequent writings on the subject, and the cor- rectness of the definition has become generally acknowledged. And the old and formerly standard definitions which, taking no note of the diverse meanings of the word " marriage," termed it with- out discrimination a " contract," have been discarded.^ Now, — 1 Bishop Con. § 623-636. England, those which could be cited to it 2 Consnlt, for example, Maynard v. are less in number than with us ; but the Hill, 125 U. S. 190, 210, 211, 2 Wash, proposition that marriage is a status and 321 ; Gregory v. Gregory, 78 Me. 187, 189, not a contract finds now a good deal of 57 Am. R. 792 ; Campbell v. Crampton, 8 support there. For example : " As has Abb. N. Cas. 363, 371 ; Moot v. Moot, 37 been frequently pointed out, a decree of Hun, 288; Cook v. Cook, 56 Wis. 195, 43 dissolution of marriage cannot be the ju- Am. E. 706 ; Askew v. Dupree, 30 Ga. dicial declaration of a mere consequence 173, 176 ; Lonas v. S. 3 Heisk. 287, 307, agreed between the parties for the breach 308; Ellison y. Martin, 53 Mo. 575, 578; of a contract, as in ordinary cases of breach , Noel V. Ewing, 9 Ind. 37 ; Ditson v. Dit- of contract, or a mere compensation or in- son, 4 R. I. 87 ; Frasher v. S. 3 Tex. Ap. dividual remedy for the breach of a pri- 263, 276, 30 Am. R. 131 ; Green v. S. 58 vate duty as in an action for damages, Ala. 190 ; Watkins v. Watkins, 135 Mass. but can only be a judicial sentence of the 83, 84. The later American cases are very law of the country in and for which the numerous in which this definition is ex- court is acting, by which such court as- pressly or by implication accepted. In sumes to alter not only the relation ha- 5 § IB GENERAL AND FUNDAMENTAL. [BOOK I. § 12. Nature of a Legal Definition. — In the law, a definition is legal doctrine epitomized.^ To ascertain, therefore, whether or not a proposed definition is correct, we do not compare its terms with those of prior definitions, with dicta of the judges, or with the words of other learned persons. The test is, whether or not it accurately pictures, in miniature, not what the courts say, but the sum of what they adjudge. And in the barbarous condition of our legal literature, alike in the past and in the present,^ often is one thing uttered from the bench, and written down as law in our text-books, and the directly opposite of it adjudged. A com- mentator on the law, therefore, should define legal doctrine ac- cording to its actual form in practice, not in any erroneous words which a judge or predecessor may have employed. Hence, — § 13. This Definition proved Correct. — We know that the fore- going definition of marriage is correct, because it accurately describes what the courts constantly decide. That marriage exe- cuted is not a contract we know, because the parties cannot mu- tually dissolve it, because the act of God incapacitating one to discharge its duties will not release it, because there is no ac- cepted performance which will end it, because a minor of mar- riageable age can no more recede from it than an adult, because it is not dissolved by a failure of the original consideration, be- cause no suit for damages will lie for the non-fulfilment of its duties, because its duties are not derived from its terms but from the law, because legislation may annul it at pleasure, and be- cause none of its other elements are those of contract, but all are of status. tween the parties but the status of both, riage be regarded only in the light of a con- Marriage is the fulfilment of a contract tract. It is indeed based upon the contract satisfied by the solemnization of the mar- of the parties, but it is a status arising riage, but marriage directly it exists ere- out of a contract to which each country is ates by law a relation between the parties entitled to attach its own conditions, both and what is called a status of each. The as to its creation and duration." Han- status of an individual, used as a legal nen, P. in Sottomayer v. DeBarros, 5 term, means the legal position of the indi- P. D. 94, 101. These English expressions vidual in or with regard to the rest of the may be regarded, in some sense, as in- community. That relation between the dorsements of my definition ; my book be- parties, and that status of each of them ing, in both instances, before the judges.^ with regard to the community, which are Curiously, in the second of these cited constituted upon marriage, are not im- cases, there is a misprint in the name, posed or defined by contract or agreement ' Bishop Con. § 184, note, but by law." Brett, L. J. in Niboyet v. ^ \ Bishop Crim. Proced. 3d ed. Intro- Niboyet, 4 P. D. 1, 11. Again: "Very duction. many and serious difficulties arise if mar- 6 CHAP. II.J MARRIAGE DEFINITION AND NATURE. § 16 § 14. Contract ending in Status. — The mere agreement to marry ^ is not essentially different from other executory civil contracts ; it does not superinduce the status ; and, on its viola- tion, the injured party may recover his damages of the other. But when it is executed in what the law accepts as a valid mar- riage, its nature as a contract is merged in the higher nature of the status. And though the new relation — that is, the status — retains some similitudes reminding us of its origin, the contract does in truth no longer exist, but the parties are governed by the law of husband and wife. In other words, their prior mutual promise to marry was simply an undertaking to assume the marital status ; and, on its assumption, the agreement, being fully performed according to its terms, bound them no longer.^ Still, — § 15. Property and Status distinguished. — There may be, and sometimes is, an antenuptial bargaining between the parties, to survive the assumption of the status, more or less regulating their property relations,^ yet in no degree qualifying the status itself. So that, in marriage, there is a difference between property and status. Even in the absence of such bargaining, said Lord Stowell, " Rights of property are attached to it on very different principles in different countries. In some there is a eommunio lonorum. In some, each retain their separate property. By our law it is vested in the husband. Marriage may be good inde- pendent of any considerations of property, and the vinculum fidei may well subsist without them." * We shall have frequent occa- sion to recall this distinction ^ in the subsequent elucidations of the present work. § 16. Antenuptial Agreements and Status, compared. — While the law thus permits the parties to regulate somewhat, by an antenuptial agreement, their property relations, it furnishes its rule for the cases in which they provide no different one, and pre- sumes their assent to it. And we may well regard the antenup- tial agreement, the rule governing in its absence, and perhaps all • 1 Ante, § 9. 6 Holmes v. Holmes, 4 Barb. 295, 301 , 2 And see 1 Bishop Mar. Women, Maguire v. Maguire, 7 Dana, 181 ; Harding § 23-26. V. Alden, 9 Greenl. 140, 23 Am. D. 549 8 On this subject, consult the author's Crane v. Meginnis, 1 Gill & J. 463, 19 Am work on the law of " Married Women." D. 237 ; Townsend v. Griffin, 4 Barring, * Lindor. Belisario, 1 Hag. Con. 216, Del. 440; Sauford v. Sanford, 5 Day, 23], 4 Eng. Ec. 367, 374. 353. 7 § 19 GENERAL AND FUNDAMENTAL. [BOOK I. the rules which concern their mere property rights, not as of the status, but as drapery hung about it, giving it ornament and hue, while forming of it no part. Denude it of this drapery, and noth- ing remains but the shadow of its origin in our memories having even the similitude of a contract. No suit at law or in equity, sounding in contract, and going to the marital relation itself, can be maintained between husband and wife during their life- time ; and, after the death of one of them,^ an action of this nature will not lie against the representatives of the deceased. And where there is no remedy, not merely where the remedy is suspended for the want of a tribunal to administer it, there is no right.2 The suit for divorce, we shall hereafter see, is not an action upon contract, but a proceeding sui generis, founded on the violation of duties enjoined by law, and resembling more an action of tort than of contract.^ § 17. Compared with Parent and Child. — If the husband is un- der obligation to support his wife, so likewise is he to support his children. As to each relation, the duty comes from the law, not from contract. The relation of parent and child, equally with that of husband and wife, from which the former proceeds, is a civil status ; and these two relationships are analogous to each other, while no similitudes appear between either of them and the parties to ordinary contracts. Again, — § 18. Compared with Guardian and Ward. — The Same com- parison may be made between the status of husband and wife and that of guardian and ward. The guardianship is assumed voluntarily, but its mutual obligations and duties are imposed by law. § 19. No New Law. — The reformed definition never proposed to, and it did not, introduce any new law, or work any change in the judicial rulings. It was simply a more accurate statement than had been before made of the law as actually held and ad- ministered in the courts. It was an attempt to beguile the judges away from the inveterate habit of saying in words one thing and ruling its exact opposite ; or of introducing an opinion with a 1 And see McConnick «. McCormick, every right when withheld must hare a 7 Leigh, 66 ; Shaw v. Thompson, 1 6 Pick, remedy, and every injury its proper re- 198, 26 Am. D. 655. dress." 3 Bl. Com. 109. Ubi jus ibireme- 2 See Holmes v. Holmes, 4 Barb. 295, dium is a maxim of the law, concerning 301, 302. " It is a settled and invariable which see Broom Leg. Max. 146. principle in the laws of England, that » Vol. II. § 489-497. 8 CHAP. II.J MARRIAGE DEFINITION AND NATURE. § 22 proposition as universally accepted law, and then following it up with an exposition showing the contrary doctrine to be true and universal. Thus, — § 20. Defining as Contract — (Civil — Religious). — We have seen that the former definitions declared marriage to be a con- tract.i Yet the definer would add, that it is also more than a contract, and differs from all other contracts.^ A frequent ques- tion was, whether it is a civil contract, or a religious vow.^ The Roman Catholic Church holds it to be a sacrament ; and, though Protestants do not so generally, they account it as of divine ori- gin, and invest it with the sanctions of religion.* Therefore it has been said that, " according to juster notions of the nature of the marriage contract, it is not merely either a civil or religious contract ; and at the present time it is not to be considered as originally and simply one or the other." ^ Yet all the decisions attest that, however deeply the religious nature of marriage may engage the affections of the community, the law leaves this nature to the sole care of religion,® and contemplates it only as a civil institution.'^ Hence, — § 21. Why ? — It was not unnatural for one intent on distin- guishing marriage as the law views it from marriage as a religious rite, to say, regardless of further accuracy, that it is a " contract," a " civil contract ; " since only through such contract, and in no degree from priestly benediction, does the law deem it to be formed. And in the thoughtlessness with which it has become the habit of lawyers to follow one another in their legal utter- ances, the second definer would be sure to adopt the words of the first; and the third, again to repeat them. So the confusion would go down. Thus, — § 22. Terms of Old Definition. — " Marriage is considered in every country as a contract, and may be defined to be a contract according to the form prescribed by the law, by which a man and 1 Ante, § 11. 8 Lindo v. Belisario, I Hag. Con. 216, '^ Townsend v. Griffin, 4 Barring. Del. 230, 4 Eng. Ec. 367, 373. 440; Maguire v. Maguire, 7 Dana, 181, * Story Confl. Laws, § 108, 209. 183 ; Miles v. Chilton, 1 Rob. Ec. 684, 694 ; 6 Loj-d Stowell, in Lindo v. Belisario, Dickson v. Dickson, 1 Yerg. 110, 112, 24 supra, 4 Eng. Ec. 374; Fornshill u. Mur- Am. D. 444 ; Kilborn v. Field, 78 Pa. 194. ray, 1 Bland, 479. But see S. v. Fry, 4 Misso. 120, 179; Lon- » 1 Bl. Com. 433. donderry v. Chester, 2 N. H. 268, 9 Am. ' Dumaresly v. Fishly, 3 A. K. Mar. D. 61 ; Holmes v. Holmes, 6 La. 463, 26 368 ; Jenkins v. Jenkins, 2 Dana, 102, 26 Am. D. 482. Am. D. 437. 9 § 24 GENERAL AND FUNDAMENTAL, [BOOK I. woman, capable of entering into such a contract, mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and his wife." ^ Again : " Marriage is a contract having its origin in the law of nature antecedent to all civil institutions, but adopted by political society, and charged thereby with various civil obligations. It is founded on mutual consent, which is the essence of all contracts ; and is entered into by two persons of different sexes, with a view to their mutual comfort and support, and for the procreation of children." ^ But Ayliffe, though an old writer, and not of the highest authority, defines marriage more accurately as " a lawful coupling and joining together of a man and woman in one indi- vidual state or society of life, during the lifetime of one of the parties ; and this society of life is contracted by the consent and mutual good-will of the parties toward each other." ^ It is the common vice of the definitions whereof these are specimens, that they blend the contract by which marriage is entered into with the resulting status. Now, — § 23. More Accurate Dicta. — Side by side with these incorrect definings, the older books, equally with the later, contain many ob- servations in harmony with the reformed utterances.* Thus, — § 24. Lord Robertson, — a Scotch judge, in a passage approv- ingly quoted by Judge Story ^ and by Mr. Fraser,^ said : " Mar- riage is a contract sui generis, and differing in some respects from all other contracts, so that the rules of law which are applicable in expounding and enforcing other contracts may not apply to this. The contract of marriage is the most important of all human transactions. It is the very basis of the whole fabric of civilized society. The status of marriage is juris gentium, and the foundation of it, like that of all other contracts, rests on the consent of parties ; but it differs from other contracts in this, that the rights, obligations, or duties arising from it are not left entirely to be regulated by the agreements of parties, but are, to a certain extent, matters of municipal regulation over which the parties have no control by any declaration of their will ; it con- fers the status of legitimacy on children born in wedlock, with 1 Shelf. Mar. & Div. 1. fessing to be complete, in Maynard v. Hill, 2 Rogers Ec. Law, 2d ed. 595, tit. Mar- 125 U. S. 190. riage. See also 1 Bl. Com. 433. 5 story Confl. Laws, § 109-111. 8 Ayl. Barer. 359. 6 1 Fraa. Dom. Rel. 88. See also Shelf. * See a collection of them, not pro- Mar. & Div. 16. 10 CHAP. II.] MARRIAGE DEFINITION AND NATURE. § 27 all the consequential rights, duties, and privileges thence arising ; gives rise to the relations of consanguinity and affinity ; in short, it pervades the whole system of civil society. Unlike other con- tracts, it cannot, in general, amongst civilized nations, be dis- solved hy mutual consent; and it subsists in full force, even although one of the parties should be forever rendered incapable, as in the case of incurable insanity, or the like, from performing liis part of the mutual contract. No wonder that the rights, du- ties, and obligations arising from so important a contract should not be left to the discretion or caprice of the contracting parties, but should be regulated in many important particulars by the laws of every civilized country." ^ § 25. Lord Bannatyne, — another Scotch judge : " Though the origin of marriage is contract, it is in a different situation from all others. It is a contract coeval with, and essential to, the existence of society ; while the relations of husband and wife, parent and child, to which it gives rise, are the foundation of many rights acknowledged all the world over, and which, though differently modified in different countries, have everywhere a legal character altogether independent of the will of the parties. . . . The rights arising from the relation of husband and wife, though taking their origin in contract, have yet, in all countries, a legal character, determined by their particular laws and usages, alto- gether independent of the terms of the contract, or the will of the parties at the time of entering into it." ^ To illustrate, — § 26. Robertson — (Husband's Authority over 'Wife). — As once asked by Lord Robertson : ^ " If a man in this country [Scotland] were to confine liis wife in an iron cage, or to beat her with a rod of the thickness of the judge's finger, would it be a justification in any court to allege that these were powers which the law of England conferred on a husband, and that he was entitled to the exercise of them, because his marriage had been celebrated in that country?"* § 27. Ross. — " Marriage," said Mr. Commissary Ross, " is^ a contract altogether of a peculiar kind ; it stands alone, and can be assimilated to no other contract whatever." ^ 1 Duntze v. Levett, Ferg. 68, 385, 397, * Lord Robertson, in Duntze v. Levett, 3 Eng. Ec. 360, 495, 502. Ferg. 385, 399, 3 Eng. Ec. 495, 504. 2 Lord Bannatyne, in Duntze v. Levett, ' Gordon v. Pye, Ferg. App. 276, 339, Ferg. 385, 401, 3 Eng. Ec. 495, 505. 3 Eng. Ec. 430, 468. 8 Ante, § 24. 11 § 30 GENERAL AND FUNDAMENTAL. [BOOK I. § 28. Lord Stair, — in a passage approvingly quoted by Mr. Fraser, quaintly observes : " Obligations arising from voluntary engagement take their rule and substance from the will of man, and may be framed and disposed at his pleasure ; but so cannot marriage, wherein it is not in the power of the parties, though of common consent, to alter any substantial ; as, to make the mar- riage for a time, or take the power over the wife from the hus- band and place it in her or any other, or the right of provision and protection of the wife from her husband, and so of all the rest ; which evidently [listen to this marvellous logic !] demon- strateth that it is not a human but divine contract." ^ § 29. In our own Country, — looking still for the earlier utter- ances, we have judicial language not dissimilar to the foregoing. Thus,— § 30. Robertson, c. J., — said in a Kentucky case : " Marriage, though in one sense a contract, — because, being both stipulatory and consensual, it cannot be valid without the spontaneous con- currence of two competent minds, — is, nevertheless, sui generis, and unlike ordinary or commercial contracts is puhlici juris ; be- cause it establishes fundamental and most important domestic relations. And therefore, as every well-organized society ia es- sentially interested in the existence and harmony and decorum of all its social relations, marriage, the most elementary and useful of them all, is regulated and controlled by the sovereign power of the State, and cannot, like mere contracts, be dissolved by the mutual consent only of the contracting parties, but may be abro- gated by the sovereign will, either with or without the consent of both parties, whenever the public good, or justice to both or either of the parties, will be thereby subserved. Such a remedial and conservative power is inherent in every independent nation, and cannot be surrendered, or subjected to political restraint or for- eign control, consistently with the public welfare. And there- fore marriage, being much more than a contract, and depending essentially on the sovereign will, is not, as we presume,^ embraced by the constitutional interdiction of legislative acts impairing the obligation of contracts. The obligation is created by the public law, subject to tlie public will, and not to that of the parties." ^ 1 1 Fras. Dom. Eel. 89, referring to A very late authority is Maynard v. Hill, Stair, 1, 4, 1. 125 U. S. 190. 2 So the courts have since settled the ' Maguire v. Magnire, 7 Dana, 181, question, as we shall see in another place. 183. 12 CHAP. II.] MARRIAGE DEFINITION AND NATURE. § 34 § 31. Catron, J., — sitting in the Tennessee court, observed : "By the English canon and ecclesiastical law, this union of mar- riage is of a nature so widely differing from ordinary contracts, — creating disabilities and conferring privileges between the hus- band and wife ; producing interests, attachments, and feelings, partly from necessity, but mainly from a principle in our nature, which together form the strongest ligament in human society, without which perhaps it could not exist in a civilized state ; it is a connection of such a deep-toned and solemn character, — that society has even more interest in preserving it than the parties themselves. So it has been deemed by all societies, civilized, and not corrupt, in all ages." ^ And — § 32. Delaware. — In a Delaware case it was said : " The mar- riage contract is one of a peculiar character, and subject to peculiar principles. It may be entered into by persons who are not capable of forming any other lawful contract ; it can be vio- lated and annulled by law, which no other contract can ; it can- not be determined by the will of the parties, as any other contract may be ; and its rights and obligations are derived rather from the law relating to it than from the contract itself." ^ § 33. story. — Coming down to the time when Story wrote, we find him saying in his Conflict of Laws : " I have throughout treated marriage as a contract in the common sense of the word, because this is the light in which it is ordinarily viewed by jurists, domestic as well as foreign. But it appears to me to be some- thing more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties ; and, in this view, it has some peculiarities in its nature, character, operation, and extent of obligation, different from what belong to ordinary contracts." ^ Again : " Marriage is not a mere contract between the parties, subject, as to its continuance, dissolution, and effects, to their mere pleasure and intentions. But it is treated as a civil institution, the most inter- esting and important in its nature of any in society." * § 34. Bishop on Marriage and Divorce — waS published in 1852. In it the author, it is believed for the first time in any legal trea- 1 Dickson u. Dickson, 1 Yerg. 110, 112, than a contract, see Noel v. Ewing, 9 Ind. 24 Am. D. 444. 37, 49, 50. " Townsend n. Griffin, 4 Hairing. Del. ^ story Confl. Laws, § 108, note. 440, 442. That marriage is rather a status * Story Confl. Laws, § 200. 13 § 36 GENERAL AND FUNDAMENTAL. [BOOK I. tise or judicial opinion, broke away from the old shackles, and defined marriage as a status. The result has been already stated, citing many subsequent cases,^ the forms of expression from the bench have been gradually modified,^ until now those earlier ones above quoted would seem quite antiquated. § 35. Importance of this Change in Definition. — In England and Continental Europe, the inconveniences from designating mar- riage as a contract, rather than as a status, are, though consider- able, not overwhelming. The courts and jurists of those countries are not, like ours, troubled with questions under written consti- tutions. With them, the inaccurate word " contract " may turn astray a current of reasoning upon the conflict of marriage and divorce laws ; but, with us, where written constitutions are added to the complication, the consequence is apt to be quite disastrous. Until the attention of the profession with us was distinctly in- vited to the true definition of marriage, the confusion was very great, and the decisions of our courts appeared to be utterly irreconcilable. The chief cause of the mistakes and contradic- tions was the attempt to apply the rules governing contracts to the status of marriage, by minds oblivious to the truth that mar- riage is not a contract but a status. And where the right defini- tion is duly apprehended, the decisions flow harmoniously and justly. Now, — § 36. Changing Definitions. — If legal definitions were authori- tative as law, legal writers would be required to follow established ones as they do doctrines made irreversible by multiplied de- cisions ; and they would not be responsible for disastrous con- sequences. But not being such, they should reform them, as lexicographers do, so that they may truly indicate the thing defined. Thus, to say that marriage is a contract, when speaking of the marital condition, not of the agreement to assume it, is, as we have seen, according even to the former utterances of most legal persons,* inaccurate ; since they further declare that it differs in many particulars from other contracts. And when the differences are pointed out, we see that they have covered every quality of the marriage, and left nothing of contract. All is sub- merged in the status. To term marriage, therefore, a contract, is 1 Ante, § 11 and note. 2 Beginning perhaps with Ditson v. Ditson, 4 E. L 87. 3 Ante, § 20-33. 14 CHAP. Il.j MAERIAGB DEFINITION AND NATURE. § 37 as great a practical inconvenience as to call the well-known engine for propelling railroad cars " a horse," adding, " but it differs from other horses in several important particulars ; " and then to explain the particulars. More convenient would it be to use at once the word " locomotive." Hence, — § 37. How in these Volumes. — In the following pages, words will be used according to the reformed definings. While the exe- cuted marriage will be treated as a status, the executory agree- ment to marry will be presented simply as an ordinary contract to do a thing ; for such the law deems it. And the agreement of present marriage, which enters into the solemnization, will be contemplated simply as the threshold over which two single per- sons are passing into the marital status. For " all the authorities concur in the conclusion that marriage has its origin and founda- tion in a purely civil contract." ^ 1 Bigelow, J. in Little v. Little, 13 Gray, 264, 266. 15 40 GENERAL AND FUNDAMENTAL. fBOOK I. CHAPTER III. THE RIGHTS AND WRONGS OP DISSOLUTION BY DIVORCE. § 38. Marriage and Divorce distinguished. — Marriage being the source of population, of education, of domestic felicity, — being the all in all without which the State could not exist, — it is the very highest public interest. Prima facie, therefore, each par- ticular marriage is beneficial to the public ; each divorce, prejudi- cial. Hence, — § 39. Marriage at Pleasure — Divorce, not. — The law permits all competent parties to intermarry at their own wills, withojit obtaining authority from any supervising officer. The marriage license, required in some localities, is meant simply to attest their competency. But divorce is different. Being prima facie to the public detriment, it is suffered only in those special cases in which it is decreed by public authority. For, by all considerate opinions, — § 40. stability in Marriage. — Evils numberless, extending to the demoralization of society itself, would follow the abandonment of marriage as a permanent status, and permitting it to be the subject of experimental and temporary arrangements and fleeting partnerships. Wisely, therefore, the law holds it to be a union for life. It is so also in reason, in the common sentiments of mankind, and in the teachings of religion. No married partner should desert the other, commit adultery, beat or otherwise abuse the other, or forbear to do all that is possible for the sustenance and happiness of the other and of the entire family. Figuratively speaking, the two should walk hand in hand up the steeps of life and down its declivities and green slopes, then lay themselves to- gether for the final sleep at the foot of the hill. Consequently there should be no divorces, no divorce courts, no books on the law of divorce. In Utopia, it will be so ; it ought to be so in our own country. But, — 16 CHAP. III.J DISSOLUTION BY DIVORCE. § 42 § 41. Redress of Matrimonial Wrongs. — Since, in marriage, as in other relations of life, there are those who will not do as they ought, the prevailing sentiment of this country is, that for mat- rimonial wrongs, the same as for others, the law should furnish redress. On the other hand, not a few maintain, either from gen- eral reasoning or as a question of religious faith, that this class of wrongs ought to constitute an exception to all others, and for them no effectual remedy be permitted. They deem that if one trusts another to a cent of money or its value in goods, the courts should lend tlieir aid to enforce payment on the other's refusing ; but if the trust extends to all that makes life valuable or earth endurable, the tribunals should remain quiescent, or move only in mockery, as a warning to people to be careful whom they trust. These opinions are not absolutely two, but they a,re sometimes found more or less graded and intermingled with each other, and in different proportions. Particularly, — § 42. Reason merged in Dogma. — There are classes of people who, instead of consulting any worldly reason on this subject, submit to one or another of the several forms of religious dogma, which restrict or forbid divorce without reference to any consid- erations of an earthly nature. They stand on ground quite aside from argument, which has no jurisdiction over them. If they are commendably striving to make the world better, they see, what everybody else does, that divorces with us are numerous beyond what they ought to be in any Christian community. But instead of being impelled by this fact, as a lover of mankind within the domain of ordinary reason would be, to enlighten the understandings and warm and purify the hearts and consciences of the people, — to transmit to them the foresight which should be exercised before marriage, the due subsequent forbearance of the parties with each other's faults, the circumspection and kind- ness which will avoid faults, and the graces and pure living of a true religion, — they promulgate to everybody, including the giddy and thoughtless girls and boys who heed more their own fancies than any dogma, the falsehood that under our laws it is easy for one who leaps blindly into an unhappy marriage to shake it off ; deeming it better thus to allure people into unfit marriages than to omit a baseless and false argument for abrogating the divorce statutes.^ Now, — 1 Post, § 80, 81. vol,. I. — 2 -[J § 45 GENERAL AND FUNDAMENTAL. [BOOK I. § 43. Dogma, — in the United States, is just as freely tolerated and just as proper as in any other country ; but it has no place in our law. Legislation keeps clear of it, and frames its rules with a single view to the worldly good of the people and of the State. For example, — § 44. Sacrament, and Indissoluble. — A highly respectable form of religious belief holds marriage to be a sacrament, therefore in- dissoluble, or to be dissolved only by the Pope. Our government, proceeding on the just theory of an entire separation of Church and State, neither accepts nor rejects this dogma, but leaveS every individual free to follow his own conscience regarding it, with no particle of restraint. It compels no one to apply to the courts for divorce, either with or without first obtaining leave from the Pope ; or, after a divorce, to accept any advantages or enforce any rights which the decree confers. Ecclesiastically, our law has no eyes, and it does not see the dogma. Civilly, it looks upon it as foreign breath, rightfully controlling neither our courts nor the legislature. Even as opinion to persuade, it proceeds from those whose principal avocations are the fitting of men for heaven, not for earth, and who are disqualified for the latter in proportion as they are efficient in the former. ^ And, in reason, if a marriage may be dissolved as to its civil effects by an eccle- siastic in Rome, whose knowledge of the parties and their sur- roundings is necessarily limited, a fortiori it may be by judgment of our own courts, proceeding by authority of laws adapted to our particular needs, after a full investigation of the facts by the oaths of witnesses. § 45. other Religious Opinions. — If the opinions of the Roman Church should not control our laws, so neither should those of any other. Were the voice of Christendom on this subject undi- vided, as it is regarding polygamy, it would undoubtedly be fol- lowed by every legislative assembly. But since men and religious bodies differ as to what the Scriptures teach, so that legislation cannot mirror a common dogma of theology, there being none held by the people in common, our legislatures must act on this subject with a view solely to political and social interests. Di- vorce laws with us do not injure, even in the inmost conscience, those who deem marriage a sacrament, and indissoluble. None, as just said, are required to apply for divorce. And persons who 1 1 Bishop Crim. Proced. 3d ed. Int. xiv. 18 CHAP. III. J DISSOLUTION BY DIVORCE, § 47 have violated their matrimonial duties civilly, cannot complain of being cut off from their matrimonial rights civilly ; while still permitted to retain the seal of the sacrament pure and undefiled in their consciences, and not compelled to marry again. § 46. Principles to regulate Divorce Legislation. — Looking, then, at this legislative question, we have the following : Matri- monj is a natural right, to be forfeited only by some wrongful act. Therefore the government should permit every suitable per- son to be the husband or wife of another, who will substantially perform the duties of the matrimonial relation ; and when it is in good faith entered into, and one of the parties without the other's fault so far fails in those duties as practically to frustrate its ends, the government should provide some means whereby, the failure being established and shown to be permanent, the in- nocent party may be freed from the mere legal bond of what has in fact ceased to be marriage, and left at liberty to form another alliance.^ The guilty party would have no claim to be protected in a second marriage ; and whether it should be permitted to Mm or not is a question, not of right with him, but of public expe- diency, upon which there is a considerable diversity of opinion. Again, — § 47. Another Principle. — Every State has an interest alike in the private morals, the public happiness, the general virtue, and the legitimate increase, of the community. Therefore a sound policy concurs with private right, in demanding the dissolution of marriages which have failed to accomplish substantially the ends for which they were created. By their dissolution, the State obtains the benefit of the fruits of such new alliances as the par- ties choose to enter into, with the advantage of having the chil- dren trained under those better influences which harmony and matrimonial concord in the parents produce. This principle ap- plies both to offences like desertion, which, whether divorce is 1 See Taylor's Elements of the Civil source of the highest felicity, marriage Law, 351. " When, through the fault of becomes the source of the deepest woe and one of the parties, the matrimonial union misery, — then tlie sanctity of matrimony, has suffered a breach which cannot be as well as the welfare of the parties, malces healed ; when mutual love and affection, it advisable that the unhappy union should harmony and peace, have been banished be dissolved. Divorce is here onlv the from their hearts and tlieir home, and cou- external dissolution of a relation which stant discord and strife and mutual aver- internally has already been destroyed." sion and animosity imbitter domestic life; Mielziner Jewish Mar. & Div. 115, 110. in one word, when, instead of being a 19 § 49 GENERAL AND FUNDAMENTAL. [BOOK I. allowed or not, terminate the cohabitation ; and to some where it is continued, but with great discomfort and irritation. For children born during a discordant cohabitation have their natures tainted by it ; whUe their education, in which also the State has the highest interest, will almost certainly not be of a salutary character. Still — § 48. stability. — These principles should not be carried to the extent of impah-ing the stability of the marriage relation.^ " It is the policy of the law," a learned judge well said, " and neces- sary to the purity and usefulness' of the institution of marriage, that those who enter into it should regard it as a relation perma- nent as their own lives, — its duration not depending upon the whim or caprice of either, and only to be dissolved when the im- proper conduct of one of the parties (the other discharging the duties with fidelity as far as practicable under the circumstances) shall render the connection wholly intolerable, or inconsistent with the happiness or safety of the other." ^ But, — § 49. Practical View. — In the words of one of our earlier American aathorities : " The rendering of the contract of mar- riage indissoluble is running into the opposite extreme from that of permitting divorces at the pleasure of the parties. There are many persons who, on the idea that the marriage contract cannot be vacated for any misconduct, will not behave with the propriety they would if the continuance of the contract were dependent on their exertions to render themselves agreeable to the persons with whom they are connected. It is a great hardship that a person who has been unfortunate in forming a matrimonial connection must be forever precluded from any possibility of extricating himself from such a misfortune, and be shut out from enjoying the best pleasures of life. This consideration, instead of adding to the happiness of the connection, must frighten persons from entering into it. It is, therefore, the best policy to admit a dis- solution of the contract when it is evident that the parties can- not derive from it the benefits for which it was instituted ; and when, instead of being a source of the highest pleasure and most endearing felicity, it becomes the source of the deepest woe and misery." ^ Hence, — 1 2 Kent Com. 102. B. Monr. 120. See also Whittington w. 2 Simpson, J. in Griffin v. GrifBn, 8 Whittington, 2 Dev. & Bat. 64. 3 1 Swift's System, 191. 20 CHAP. III.] DISSOLUTION BY DIVORCE. § 51 § 50. True Rule. — In view of the various and somewhat con- flicting considerations on both sides, the true rule for legislation, necessarily indefinite, yet practically better than none, is believed to be, that any conduct which renders cohabitation impracticable, and, in fact, terminates it with the approbation of a community wherein marriage is regarded as a life union, should be made cause to dissolve the legal bond. Yet this rule should be applied circumspectly, and permitted to operate only in cases where a just equity concurs. § 51. Why ? — The passions which draw together the sexes are from nature, and beyond the control of legislation. Law, aided by religious and moral teachings, may prescribe for them reasonable limits and restraints, and by all right-minded persons its behests will be obeyed. It may even bring those passions under temporary subjection; and, with a minority of persons, render the subjection permanent. But legislation should always be conducted on practical lines, and shaped with a view to the general good, and to being obeyed and not broken. And it is the simple fact, growing out of the natures which for the preserva- tion of the species God has given to men and women, that the larger part of those who were originally inclined to marry will not submit to what they see to be a never-ending and childless isolation. We cannot imagine that even God could have made it otherwise, unless he meant to bring an end to the race. So that whenever a cohabitation has ceased in a way practically to ter- minate irrevocably the marriage of the parties, they will be liable, unless they are better — not worse — than the community gen- erally, to commit breaches of the rules of morality, either by promiscuous indulgences, or by forming alliances in the simili- tude of matrimonial, from which a spurious issue may spring. ^ Indeed it is well known that in England, where divorces from the bond of matrimony have till lately been obtainable only on application to Parliament, in rare instances, and at an enormous expense, rendering them a luxury quite beyond the reach of the mass of the people, second marriages without divorce, and adul- teries, and the birth of illegitimate children, are of every-day occurrence ; while polygamy is in these circumstances winked at, though a felony on the statute-book. Laws punishing adultery, ^ And see observations of Lord Stowell in Proctor v. Proctor, 2 Hag. Con. 292, 302. 21 § 54 GENEEAL AND FUNDAMENTAL. [BOOK I. except as an ecclesiastical offence, are there unknown ; ^ and they are so in countries generally where divorces are not allowed, or allowed but for a single cause. Hence — § 52. The Alternative — for legislation, in every State and country, is, on the one hand, permitted divorce with the privi- lege of retaarrying to all who cannot or will not live together ; or, on the other hand, unpermitted meretricious connections, a public sentiment more or less favoring them, and the bringing into the world of innocent children under the burdens and dis- grace of bastardy. That the wrongs whence come divorces are evils no one denies. If the refusal of divorce would prevent them, all would pray for it. But the experience of every State and country withholding this redress is practically, however men theorize, that no form of matrimonial delinquency is less preva- lent there than elsewhere. And to the extent to which sepa- rations actually occur, the community is remitted back to the condition it would be in if marriage itself was abolished. Nor is there any subject other than marriage, upon which any man claims that the commission of a wrong can be prevented by the law's denying redress to the injured person. § 53. For what Causes — the dissolution of valid marriages should be permitted is a question of greater difficulty. Clearly, adultery ; desertion, which practically breaks up the relation, and is by many deemed a greater offence against the marriage than even adultery ; ^ extreme cruelty, which renders cohabitation physically unsafe ; perpetual, perhaps temporary, imprisonment for crime ; drunkenness, when it is confirmed, habitual, and beastly, — are completely destructive of the ends of marriage, therefore they should severally be made causes for its legal dis- solution. Beyond this line, we come to ground uncertain and shadowy. And further beyond, we find ourselves again on firm footing, where reason distinctly pronounces that dissolutions should not be suffered. Thus, as to the last, — § 54. Husband's Will. — Among the Hebrews, in the days of Abraham and Moses, as commonly understood, and among vari- ous other people, the husband had the power to put away a wife 1 Anciently in England adultery might ' Brower de Jure Connub. 2, 12, 18 ; be inquired into in tourns and leets, Boehmer, 4, 19, 30; 1 Fras. Dom. Rel, and punished by fine and imprisonment. 677. Shelf. Mar. & Div. 386; 3 Inst. 206; Ayl. Parer. .^2. 22 CHAP. III.] DISSOLUTION BY DIVORCE. § 66 pretty much or entirely at pleasure.^ And even our own great Milton contended for this rule, together with various other laxi- ties in divorce, not in accord with the present enlightenment of the world.2 But to establish with us this rule would be a retro- grade into barbarism. It would transmute the wife from the respected and loved helper and companion into a slave. And law is never so much to be adored as when it casts its shield over the weak, and hurls its bolts at the offending strong. Almost on a level herewith is — § 55. Dissolution by Mutual Consent. — It is impossible to dis- solve a marriage without interfering with the interests of third persons, who are sometimes children, sometimes individuals less closely connected, and always the entire community .^ This alone is a sufficient reason why mutual consent should not be accepted as adequate cause. But there is also another reason ; under such a law, if a brutal husband wished to get rid of his broken-down wife and marry a young and handsome one, he too easily could make her understand that, unless she consented, a concealed persecution would follow her swiftly to her grave. § 56. Just, but Impractical. — There are physical and mental unadaptations, or misfits, — dissimilar aspirations and passions, non-assimilating loves and hopes, personal atmospheres mutually repellent, " incompatibilities of temper," * and various other like things, — which plainly ought to have prevented marriage at the beginning, but which as grounds of divorce cannot be practically 1 The modern Jews, at least, do not pleading his own cause. But, on the other interpret the Old Testament Scriptures hand, there is better ground to say that, quite so, deeming them to authorize a though his attention may have been at husband to divorce his wife only for cause, first directed to the subject by his own case, In the words of Deut. xxiv. 1, he must yet his argument is a singular instance have " found some uncleanness in her." of self-sacrifice to what he deemed, how- Mielziner Jewish Mar. & Div. 116. Some ever mistakenly, to be the demands of interpreters have considered these words, truth. His wife deserted him ; and it specifying " uncleanness," to authorize di- would appear that he could easily have vorce only for her adultery; but as, by persuaded the English Church and Par- the same law, adultery was to be punished liament to adopt desertion as a ground for by death, a broader meaning must evi- divorce. But in his writings he says little dently be given them. Bees Cyc. art. cf this cause ; while he labors to persuade Divorce. his readers of other views, which he no 2 In accord with a custom still popu- doubt foresaw could not be carried into lar among controversialists, — namely, to legislation soon enough to serve him per- slander your opponent personally, as well sonaUy, whatever hope he mipht have in- as to misstate his doctrines, — it has been dulged of their ultimate prevalence, attempted to weaken the force of Milton's ' Ante, § 38-40. reasoning by the suggestion that he was * Post, § 83. 23 § 58 GENERAL AND FUNDAMENTAL. [BOOK I. adopted without working more mischief than good. If, in order to make young people cautious about their matrimonial under- takings, it is necessary to frighten them with the spectre of an unhappy marriage which they cannot shake off, there is enough of the horrible here, without denying divorce in the cases wherein it is evident that only good will follow. § 57. Practically, with us, — and with exceptions in but a few of our States, the foregoing views have found expression in legis- lation. The exceptions consist in limiting divorce to adultery, or in one of our States disallowing it altogether. There are some diversities in the causes for which dissolutions are grant- able in the remaining States, but they are only as respects dere- lictions of minor consequence, and for which this remedy is seldom sought. § 58. In South Carolina, — with the exception of six years follow- ing the Secession War and Reconstruction, — namely, from 1872 to 1878,1 — no divorces, even for adultery, are or ever have been granted, either by the courts or by the legislature.^ This long continuance of a legal rule, contrary to the opinions and practice of all the other States, and even of the country whence our laws are derived, plainly has worked satisfactorily to the majority of the people, or they would have compelled a change. And it has received praise from abroad ; as, in the Georgia Supreme Court it was pronounced to be " to her unfading honor." ^ The cases are numerous in which her own courts have praised it ; for ex- ample, — " The policy of this State has ever been against divorces. It is one of Ker boasts that no divorce has ever been granted in South Carolina." * Yet there is no pretence that in this State there have been no breaches of the marriage obligations. Thus, said O'Neall, J. : " The most distressing cases, justifying divorce even upon scriptural grounds, have been again and again pre- sented to the legislature, and they have uniformly refused to annul the marriage tie. They have nobly adhered to the injunc- tion, 'Those whom God has joined together let not man put asunder.' The working of this stern policy [of " nobly " refusing 1 Grant v. Grant, 12 S. C. 29, 30, 32 47 Am. T>. 541 ; McCarty v. McCarty, 2 Am. R. 506. Strob. 6, 47 Am. D. 585. 2 Hull u. Hull, 2 Strob. Eq. 174 ; 3 Head v. Head, 2 Kelly, 191, 196, Nis- Vaigneur v. Kirk, 2 Des. 640, note ; Mat- bet, J. tiBon V. Mattison, 1 Strob. Eq. 387, 388, ^ Durgan, Ch. in Hair ;;. Hair, 1 Rich. Eq. 163, 174. 24 CHAP. III.] DISSOLUTION BY DIVORCE. § 59 redress, even in the " most distressing cases," where " Scripture " joins with reason in crying for it] has been to the good of the people and tlie State in every respect." ^ Now, — § 59. Result, as Example. — If this utter forbidding of all di- vorce had in South Carolina prevented nnhappy marriages, adul- teries, abuse by the husband of the wife, desertion, the birth of illegitimate children, and the rest of the wrongs attempted to be remedied by divorce laws in the other States, this happy conse- quence would present an irresistible argument for the adoption of the same rule elsewhere. But the legal records of this State are, as to these things, at least no better than those of the other States. " All marriages, almost," said a learned judge in one case, " are entered into on one of two considerations, love or in- terest, and the court is induced to believe the latter is the founda- tion of most of them," ^ — a condition of things certainly not better than we find in States where divorces are allowed. An instance of abuse of the wife, not less gross than we see elsewhere, appears in an alimony case in this State : the husband took his negro slave-woman to his bed and table, and compelled the unoffending wife to receive the crumbs after her, with all manner of indigni- ties aud wrongs besides.^ His knowledge that the law would not break the bond of matrimony for his wickedness did not prevent its commission. Moreover, we appear to have in this State a peculiar institution, described by Nott, J., from the bench of its highest tribunal, between which and divorce it is competent for any State to choose, as follows : " In this country," he said, " where divorces are not allowed for any cause whatever, we sometimes see men of excellent characters unfortunate in their marriages, and virtuous women abandoned or driven away house- less by their husbands, who would be doomed to celibacy and soli- tude if they did not form connections which the law does not allow, and who make excellent husbands and virtuous wives still. Yet they are considered as living in adultery, because a rigorous and unyielding law, from motives of pohcy alone, has ordained it so." * And so common is this form of polygamous union, not only that it is thus commended from the bench, but it has become neces- 1 McCarty v. McCarty, 2 Strob. 6, 11, s Jelineau v. Jelineau, 2 Des. 45. 47 Am. D. 585. • < Cusack v. White, 2 Mill, 279, 292, 12 2 Thompson, J. in Derail v. Devall, 4 Am. D. 669. Des. 79, 83. 25 § 60 GENERAL AND FUNDAMENTAL. [BOOK I. sary to regulate, by statute, how large a proportion a married man may give of his propei'ty to his concubine,^ — superfluous legislation, which never would have been thought of, had not concubinage been common. Statutes like this are unknown, be- cause not required, in States where divorces are freely granted. When the six-year-old statute allowing divorces was in 1878 repealed, the experiment was tried of making a living together in adultery or fornication — not a single illicit act — a crime.^ Whether this new statute is practically enforced is a question on which the author has no knowledge ; whether it can be, while all divorce is prohibited, is one on which he does not propose to speculate. § 60. More of the Particulars — of our divorce legislation will appear in their proper connections further on. 1 Denton v. English, 3 Brev. 147 ; Can- of his bastard child or children, any larger ady V.George, 6 Rich. Eq. 103; Cusack or greater proportion of the real clear value V. White, 2 Mill, 279, 12 Am. D. 669. of his estate, real or personal, after paying " If any person who is an inhabitant of of his debts, than one fourth part thereof, this State, or who has any estate therein, such legacy or devise shall be null and shall beget any bastard chUd, or shall live void for so much of the amount or value in adultery with a woman, the said person thereof as shall or may exceed such fourth having a wife or lawful children of his part of his real and personal estate." S. C. own living, and shall give, by legacy or Gen. Stats, of 1882, § 1866. devise, for the use and benefit of the said 2 j^ re-enactment is S. C. Gen. Stats, woman with whom he lives in adultery, or of 1882, § 2588-2590. 26 CHAP. IV.] THE SEVERAL SEPARATIONS. § 64 CHAPTER IV. THE NATURE AND POLICY OP THE SEVERAL SEPARATIONS. § 61. Introduction. 62-66. Without Judicial Intervention. 67-70. By Judicial Intervention. § 61. How Chapter divided. — We shall consider the nature and policy of separation, I. Without Judicial Intervention; II. By Judicial Intervention. I. Without Judicial Intervention. § 62. Inevitable and Temporary. — The various avocationS of life, and to some extent the permissible pleasures, cause, of neces- sity, more or less temporary separations of married parties. Being ■without their fault, they should be, and are, without evil conse- quences from the law. But — § 63. Permanent Separations, — however voluntary and mutual, are, though sometimes highly proper and even necessary, ordina- rily of evil example ; while yet it does not follow that it would be wise for the law to punish them. The effect of this sort of separa- tion on the suit, unknown in the United States, for the restitution of conjugal rights, on the husband's liability for the support of his wife, and on the divorce suit for desertion, will be considered in the proper places. But in general reason, to be contemplated here, there is no very firm ground for interfering with the wills of the parties regarding this sort of separation. § 64. Desertion — is different. It is an absolute and total re- fusal to discharge the duties of the marriage, an attempted entire rescission thereof. In reason, the law should not act hastily in such a case, but should furnish a fair space for repentance. When a sufficient time has elapsed, and no reasonable hope for a renewal of the cohabitation remains, the law should recognize the 27 § 68 GEXEEAL AND FUNDAMENTAL. [BOOK I. fact that the bond of matrimony is dissolved, and on prayei- of the innocent party decree accordingly. And such is the course in most of our States, though a few do not accept this ground for dissolution. Analogous to desertion, and perhaps rightfully to be deemed desertion itself, is any — § 65. Evil Conduct tenninating Coliabitation. — If one spouse, by cruelty, by adultery, or by any other such evil conduct as totally destroys the marriage, compels the other to leave him, this, in reason, is the same undoing of the marriage bond as though the common name of it ^vere desertion. And the law should furnish the same redress. In most of our States, it does ; but there are partially exceptional States, and in the last chapter we saw that in one State the exception is total. Xow, — § 66. Another Consequence. — While, in these cases, the law should provide the remedy of dissolution, it, for the good both of the public and of the parties, should forbear to interfere in another way, to obstruct this remedy. Therefore, for example, it should not provide the mere separation — n. By Judicial Intervention. § 67. Bed and Board — 'Why. — When the Church governed this entire subject of marriage, and forbade judicial dissolution as an interference with its sacrament, competent only for its earthly head the Pope, it gave to the courts the right to make the enforced separation and practical celibacy permanent ; and thus perpetu- ate the wrong, by pronouncing a decree of what was termed di- vorce from bed and board. By this decree, the injured party, in mockery of redress, is kept under all the burdens of matrimony, and cut off from all its benefits. At the same time, it enables the law to put on the delusive appearance of carrying out its boast that it furnishes a remedy for every wrong. § 68. Detestable. — This proceeding, neither dissolving the marriage, nor reconciling the parties, nor yet changing their natures ; having, at least, no direct sanction from Scripture ; characterized by Lord Stowell as casting them out "in the un- defined and dangerous characters of a wife without a husband, and a husband without a wife ; " ^ by Judge Swift, as " placing them in a situation where there is an irresistible temptation to 1 ETans V. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 349. 28 CHAP. IV.J THE SEVERAL SEPARATIONS. § 69 the commission of adultery, unless they possess more frigidity or more virtue than usually falls to the share of human be- ings;"^ by Mr. Bancroft, as punishing " the innocent more than the guilty ; " ^ by an Englisli writer, as " a sort of insult, rather than satisfaction, to any man of ordinary feelings and under- standing,"^ — is, while destitute of justice, one of the most cor- rupting devices ever imposed by serious natures on blindness and credulity.* It was tolerated only because men believed, as a part of their religion, that dissolution would be an offence against God; whence the slope was easy toward any compromise with good sense ; and as the fruit of compromise we have this ill- begotten monster of divorce a mensa et thoro, made up of pious doctrine and worldly stupidity. The Protestant Bishop Cozens long ago proclaimed to a Protestant nation, in language suffi- ciently pointed against the Catholics to meet all Protestant preju- dices : " The distinction betwixt bed and board and the bond is new, never mentioned in the Scripture, and unknown to the ancient Church ; devised only by the canonists and schoolmen in the Latin Church (for the Greelc Church knows it not) to serve the Pope's turn the better, till he got it established in the Coun- cil of Trent ; at which time, and never before, he laid his anath- ema upon all them that were of another mind ; forbidding all men to marry, and not to make any use of Christ's conces- sion."^ Yet in the face, not only of this testimony, but of all opinions not moulded by theological dogma, Protestant England, and a large proportion of the States of this country where the tenets of no particular religious sect pervade our legislation, this divorce from bed and board, termed in the modern English stat- utes judicial separation, this nuisance in the law, is suffered to stand unquestioned ! Even in Scotland it exists ; in almost every place where Marriage is known, this Folly walks with her, — the queen and the slut, the pure and the foul, the bright and the dark, dwell together ! Such is marriage and its detestable part, such is human life ! And — § 69. Restitution of Conjugal Rights. — Over England, but not 1 1 Swift's System, 193. elsewhere observes, that "these qualified '^ 1 Bancroft's Hist. U. S. 465. divorces are regarded as ratlier hazardous ' Macq. Hus. & Wife, 197. to the morals of the parties." 2 Kent * And see the very sound remarks of Com. 127. And see ante, § 46. Chancellor Kent in Barrere v. Barrere, 4 ^ In the Duke of Norifolk's Case, 13 Johns. Ch. 187, 191. This 'earned judge How. St. Tr. 12S3. 29 § 70 GENEEAL AND FUXDA3IEXTAL. [bOOK I. over this country, has trailed also that other spawn of a dark age, whose mission it was to keep uuconjugal sinners in the strait performance of holy matrimonial duties, termed the suit for the restitution of conjugal rights. By it, one who, without excuse satisfactory to the judge, voluntarily did what the judge was in the habit of compelling others to do, — namely, forsook the bed and board, — was by his judgeship, through the process of the court, thrust back again to the bliss which had been too lightly prized.^ In 1884, Parliament, not abolishing this pro- ceeding, changed it to become, in effect, a special form for ob- taining a judicial separation for desertion, or a dissolution for desertion and adultery .^ § 70. Should be Abrogated. — This judicial separation, or di- vorce from bed and board, should in our country be abrogated, and the divorce from the bond of matrimony stand in its stead. The latter offers to injured wives whose religious opinions are averse to dissolution all the protection from the law, and enforce- ment of support from the husband, derivable from the former. So that the change will injure no person,^ while it will afford real justice to many, and better promote the welfare of the State. In a few of the States this change from their former laws has been made. ^ Onne i-. Orme, 2 Add. Ec. 382, 2 but not absolutely decided. This jurisdic- Eng. Ec. 3.54 ; Weldon v. Weldon, 9 P. D. tion is not conferred by statute. For a 52 ; Field v. Field, 14 P. T>. 26 ; Logan v. practical iUnstration of the effect of this Logan, 2 B. Monr. 142 ; Baugh v. Baugh, suit in England, in former times, see Bar- 37 Mich. 59 ; Cruger v. Douglas, 4 Edw. lee v. Barlee, 1 Add. Ec. 301. See also 50 Ch. 433, 506; Coverdill u. CoTerdill, 3 Lond. Law Mag. 275. Harring. Del. 13. See Kharae r. Rhame, = Stat. 47 & 48 Vict. c. 68 ; post, § 153, 1 McCord Ch. 197, 16 Am. D. 597, where note; Harding !-. Harding, 11 P. D. 111. the question was raised for South Carolina, ^ Ante, § 44, 45. 30 CHAP, v."! RESULTING LEGAL DOCTRINES. § 74 CHAPTEK V. SOMETHING OP LEGAL DOCTRINES RESULTING PROM THE FOREGOING. § 71. Special. — The foregoing special natures of marriage, of its dissolution during the lives of the parties, and of the sev- eral separations, necessarily and properly have wroxight out corresponding special doctrines of the law, not recognized in the other legal departments. They will be explained minutely in their proper places in these volumes ; the purpose of this chapter being simply to direct attention to them, and to make plain their general character and scope, by a few illustrations. Thus,— § 72. Triple Interests. — We shall see, in the next volume, that while the suit for divorce is in form between two persons, the real parties to it are three, the State constituting the third. And the reason is, that the State has a special interest in each individual marriage, permitting its dissolution only in those cir- cumstances and cases wherein it deems that 'the public inter- ests will not be thereby impaired. Whence come such rules as that — § 73. Divorce by Consent. — There can be no divorce by con- sent of parties, whether given personally or by counsel, in open court or otherwise.^ Even where a decree has been wrongfully obtained, an -agreement between the parties of record not to dis- turb it is void ; being contrary to the interests of the third party the State, and against public policy/.^ And — § 74. Estoppels, — Avhile in some circumstances admitted into marriage and divorce cases,^ are disallowed where they would con- flict with the foregoing principles. For example, where, under 1 Haverty v. Haverty, 35 Kan. 438; « Richeson v. Simmons, 47 Mo. 20; Powell c. Powell, 80 Ala. 595 ; Martinez Munvo r, De Cheraant, 4 Camp. 215. And !). Lucero, 1 New Max,. 208. see Hardy i. Smith, 136 Mass. 328 ; post, 2 Comstock V. Adams, 23 Kan, 513, 523. § 1150, and places referred to. 31 § 77 GENERAL AND FUNDAMENTAL. [BOOK I. the modern English law, a woman's marriage with the late hus- band of her deceased sister was by statute void, her suit to declare it so was sustained, though she was aware of the impediment when she entered into the marriage ; contrary, it was judicially observed, to "all the principles of law administered in other" causes. For, in the others, " she would not be allowed to get rid of any obligation she had entered into with her eyes open." In this nullity case, the different rule was necessary to protect the public interests.^ Hence, also, — § 75. Confessions, — by the defendant, do not have the same full effect in nullity and divorce causes as in others,^ — a question to be more particularly explained in other connections. § 76. For or against Marriage. — From the distinction already explained,^ tha.t, prima facie, a marriage is beneficial and a divorce detrimental to the public, comes the rule of law that agreements promotive of m£).rriage are valid, and those in aid of divorce are void. We shall liave this principle in many forms, with many illustrations, in subsequent pages. For example, if a husband and wife combine to procure a dissolution of their marriage, any promissory note, or any other writing or agreement, executed in aid of such undertaking, is void.* On the other side, an agree- ment to abandon a pending divorce suit and renew cohabitation, being in aid of marriage, accords with public policy, and the courts will enforce a promise founded upon it as a consideration.^ There are cases lying near the line separating these two classes ; as to which, we shall sec further on, there may be slight differ- ences of judicial opinion. A single further illustration will satisfy the purposes of this chapter ; namely, — '- § 77. Presumptions leaning to Marriage. — Because of the high favor in which marriage is held by the law, we have transmitted 1 Andrews v. Eoss, 14 P. D. 15, 16, of rules special to themselves, but special Butt, J. The opinion does not state the to the subject. full reason as set down in my text , only 2 ^g Brun v. Le Brun, 55 Md. 496 ; showing that the ecclesiastical courts, by Madge v. Madge, 42 Hun, 524 ; Summer- whose decisions the tribunal was bound, bell v. Summerbell, 10 Stew. Ch. 603. "have applied a different rule" from the s ^nte, § 38, 39. one commonly governing the other courts, * Cross v. Cross, 58 N. H. 373 ; Phil- "and that the principles prevailing in re- lips v. Thorp, 10 Or. 494; Jordan v, gard to contract of marriage differ from Westerman, 62 Mich. 170, 4 Am. St. 836 ; those prevailing in all other contracts Seeley's Appeal, 56 Conn. 202. known to the law." Referring specially ^ Adams v, Adams, 91 N. Y. 381, 43 to Miles I'. Chilton, 1 Rob. Ec. 684. The Am. R, 675; Smith v. Smith, 35 Hun, ecclesia.stical courts hold this, not because 378. 32 CHAP. V.j EESULTING LEGAL DOCTRINES. § 77 to US the special maxim, Semper prcesumitur pro matrimonio,^ always presume marriage. When a man and woman are living together as husband and wife, the law will hold them to be such, even against strong probabilities that they are not, — or, when a ceremony of marriage is shown, there will be the like presump- tion that it is valid, — unless some distinct and special fact clearly appears in the particular case to the contrary. This will be ex- plained more fully in the chapters on the proofs of marriage. 1 Piers V. Piers, 2 H. L. Cas. 331; Dickerson v. Brown, 49 Missis. 357, 371, 372; Wilkie V. Collins, 48 Missis. 496. VOL. I. -3 33 § 79 GENERAL AND FUNDAMENTAL. [BOOK I CHAPTER VI. LEGAL DOCTRINES DERIVED FROM HISTORICAL SOURCES, FROM RELI- § 78. lutroduction. 79-85. Nature and Difficulties of Subject. 86-91. Historical Influences. 92-95. Prejudices, and Religious Beliefs. § 78. How Chapter divided. — We shall consider, I. The Spe- cial Nature and Difficulties of this Subject ; II. The Historical Influences and their Results ; III. The Effects of Prejudices and of Religious Beliefs. I. The Special Nature and Difficulties of this Subject. § 79. This Chapter compared -with last — (Errors established or not). — The doctrines stated in the last chapter rest equally in reason, meaning hereby natural reason as well as legal, and in authority. And they pervade, not only our own unwritten law, but that also of every other civilized country. They can be over- thrown only by a perverted legislation. We come, in this chap- ter, to what may be or not a departure from natural reason, yet pertaining to the reason of the law. For the latter inculcates stability in judicial affairs, binding the courts by usage and pre- cedent, so that not every case is to be adjudged by the light of natural reason ; while, on the other hand, not every precedent is to be followed, — distinctions which it would be a wandering from our subject further to explqre here. So that when an error has come to us from an historical source, or from a mere baseless prejudice, or from a religious dogma not in our country within the jurisdiction of the tribunals, it may still be law until corrected by legislation, or it may not, according to the circumstances. 34 CHAP. VI.j HISTORICAL SOURCES, PREJUDICES, ETC. § 82 § 80. Perverse Mental Conditions. — That the utterances of men on marriage and divorce questions are, more frequently than on others, the product of perverse mental conditions, not of reason or of fact, is palpable to common observation. Indeed, as to some branches of this subject, there are those who cannot be trusted to state the simplest fact. To undertake to fathom the philosophy of this would conduct us beyond our present sphere, yet it is use- ful to bear in mind this truth. Thus, — § 81. As to what our Divorce Laws are. — Those who, with knowledge, have read our periodical and newspaper literature do not need to be told that it is scandalous in misstatements of our divorce laws. Tales of the causes and no causes for which the marriage bond may be dissolved, of the frivolity and absence of judicial decorum with which the work is done, and of the reck- lessness and ease with which boys and girls may jump out of ill- Gonsidered marriages, apparently meant, under the false guise of mending evils, to lure the rising generation to destruction, can be reconciled with the otherwise good character of the writers only on the supposition that they have so perverted their under- standings through madness as to be incapable of uttering truth.^ Even in scientific literature, including the literature of legal sci- ence, and in solemn judicial opinions, we occasionally meet with matter nearly of this sort. To illustrate, — § 82. " Six Weeks' Absence." — We find the following among the grave judicial utterances of Scotland : " In America, while some of the United States follow tlie English rule, in others six weeks' absence is a sufiBcient ground for divorce." ^ Again : " In Connecticut and Rhode Island, by the law of these States of civil- ized North America, six weeks' absence is a sufficient ground of such divorce [from the bond of matrimony]. Instances, too, are not unfrequent of husbands going from tlie neighboring State of New York into one or other of these, and after a residence of six -weeks intimating to their wives, by public advertisement, that they require their presence and society ; and, on the non- appearance of the wife, obtaining a divorce and returning to New York loosed of their matrimonial bonds ! " ^ Yet there never was a time when anything like this was true of the law in any 1 Ante, § 42. * Mr. Commissary Gordon in Gordon 2 Duntze u. Levett, Ferg. 68, 102, 3 v. Pye, Ferg. 276, 284, 3 Eng. Ec. 430, Eng. Ec. 360, 370. 435. 35 § 85 GENERAL AND FUNDAMENTAL. [BOOK I. one of our States. There have been instances, less in number than the public suppose, wherein unworthy parties have perpe- trated frauds on the courts, and obtained formal divorces without legal validity, when the most favorable decree to which the law entitled them was to be dismissed with costs. But so it is also in other things, and so it will remain until the world becomes perfect ; men have procured judgments for large sums of money to which they were not entitled. Still the slander upon our laws most delightful to the perverse and perverted understanding is that they permit the marriage bond to be severed for — § 83. " incompatibUity of Temper." — Tlius, in a legal treatise on Canadian parliamentary divorce, published in the Dominion in 1889, we read : " In the United States, marriages are dissolved upon proof of charges of cruelty, desertion, drunkenness, incom- patibility of temper, and other kindred offences of a personal nature, without proof of adultery." ^ The writer could have sus- tained this assertion as to incompatibility of temper by many references to our periodical and newspaper literature, yet not by any citation of a statute, subsisting or repealed, in any one of our States or Territories.^ While the mental perversion whence was born this slander of our divorce laws remains, it is likely to have as many lives as ever did a real cat. Now, — § 84. Difficulty of acquiring Historical Truth. — If history in general were as certain a thing as many believe it to be, we could still acquire from it little reliable knowledge of former divorce laws, to the original records whereof we have not access ; since only from such records can we ascertain truly what are our own contemporary ones. Thus, — § 85. Fable of Early Rome. — We read as solemn history, and it has become the common belief, that although the twelve tables allowed considerable latitude of divorce, yet iu consequence of great purity in the public morals, and a strong sentiment against the dissolution of marriage, no instance of divorce occurred dur- ing the first five hundred years of Roman nationality ! The first Roman divorce is said to have been that of Spurius Carvilius Ruga, who, A. u. c. 523, b. c. 231, repudiated his wife, whom he 1 Gemmill Pari. Div. 49. temper,' but this was repealed in 1855." 2 I have before me an American law- Lloyd' Div. 66. Yet the code of 1851 book from which I quote: "Formerly, does not so read. And see Morrison v. under § 1482, code of 1851, divorces were Morrison, 64 Mich. 53; ante, § 56. decreed in Iowa for 'incompatibility of 36 CHAP. VI.] HISTORICAL SOURCES, PREJUDICES, ETC. § 87 much loved, because of her barrenness ; being impelled thereto by an oath which the censors had compelled him to take, that he would give children to the republic. Yet all admit that after- ward divorces were abundantly plenty at Rome, and that they were allowed pretty much at the pleasure of either of the parties.^ Nor are there wanting those who doubt whether it is really true that, during five hundred years, there was in all Rome no man or woman who, unhappy in matrimony, would take a divorce when tendered by the law, or that tlie twelve tables contained any law for which there was never, in five hundred years and in a great nation, either at the time it was framed or afterward, any prac- tical use.^ The story is pretty, and it is good to coo on, in the interest of matrimonial felicity. II. The Historical Influences and their Results. § 86. General. — In spite of the obstacles thus stated, it is cer- tainly possible to learn something of the history of our present subject.^ But not much of it will be found of practical use in the legal expositions of these volumes. Thus, on the question of — § 87. Indissolubility — (Later Rome — The Church). — Passing by the law and usage of early Rome, already spoken of,* during all the ages in which the light of history is distinct great lati- tude of divorce was permitted and practised ; and the doctrine of indissolubility, except by the will of the Pope, was introduced into the law, not by the wise men who governed the State in civil affairs, but by the Church as a religious tenet. This tenet is be- 1 Rees Cyc. art. Divorce; Head v v. Hanka, 3 Edw. Ch. 469, is a sketch Head, 2 Kelly, 191, 208, Nesbit, J. ; of the history of divorce in France. In Encyc. Amer. art. Divorce ; 1 Burge, Burtis i: Burtis, 1 Hopkins, 557, 14 Am. Col. & For. Laws, 641. D. 563, is a history of divorce in the State 2 Brower de Jure Connub. 730, 731 ; of Nevr York. So also in Erkenbrach v. Taylor Civ. Law, 359. See 1 Eras. Dom. Erkenbrach, 96 N. Y. 456, 459. As to Eel. 646; 2 Kent Com. 103. North Carolina, see 1 Car. Law Repos. ' For various historical views as to 137,413; 2 ib. 129; Collier v. Collier, 1 divorce in different ages, countries, and Dev. Eq. 356 ; Dickinson v. Dickinson, 3 States, see 1 Eras. Dom. Rel. 647 et seq. ; Murph. 327, 9 Am. D. 608. As to New Tebb's Essay on Adultery and Divorce, Hampshire, see Parsons v. Parsons, 9 N. H. passim; Rees Cyc. art. Divorce; Encyc. 309, 32 Am. D. 362; Clark v. Clark, 10 Amer. Id.; Brewster's Encyc. Id.; 2 N. H. 380, 34 Am. D. 165. As to South Kent Com. 102 et seq. ; Page on Divorce, Carolina, ante, § 58, 59 ; Grant v. Grant, 1 et seq.; Rogers Ec. Law, 2d ed. 359, 12 S. C. 29, 32 Am. R. 506. As to Scot- note ; 1 Lane's Modern Egypt, 193 et seq ; land, Collins v. Collins, 9 Ap. Cas. 205. 1 Burge Col. & For. Laws, 640. In Hanks * Ante, § 85. 37 § 92 GENERAL AND FUNDAMENTAL. [BOOK I. lieved to have been first made general by the Council of Trent, in the year 1663. It was never accepted by the Greek or Eastern Church. And still — § 88. How Qualified — (Dispensation). — The Pope retained the jurisdiction to dissolve the marriage, or permit its dissolution. So that, in fact, indissolubility existed only in name. Moreover, — § 89. Impediments of Affinity, &o. — The Roman Church, and to some extent the English, succeeding to her laws, allowed mul- titudes of impediments to a marriage, especially of affinity, the effect of any one of which was to render it voidable by suit in the Ecclesiastical Court. An act of mere illicit intercourse estab- lished an affinity the same as if the parties had married ; the degrees were ridiculously extended ; ^ and If a man wished to get rid of his wife, he had only to provoke her by abuse to bring against him a suit for nullity, charging him with antenuptial in- continence with some distant relative of hers ; his confession, made in court, would, contrary to the present rule,'-' be accepted as sufficient proof of it;^ and thus a dissolution might be more easily obtained than through the most alluring modern devices. This happy door to divorce was gradually closed in the mother country, and it was never opened with us. § 90. Modern Protestant Christianity — has never professed the doctrine of indissolubility. All its divines permit dissolutions for adultery ; some stop there, others allow them for further causes. When our country was settled, and for a long time afterward, no English court had authority to dissolve a valid marriage ; yet it could be, and often was, done by act of Parliament. So that — § 91. Conclusion as to Indissolubility. — There was never a time or place, in any common-law country, when and where marriage was indissoluble by act of the law. And still, as we shall see further on, it can be judicially dissolved only by a court clothed with the jurisdiction, and for a cause legally made adequate. III. The Effects of Prejudices and of Religious Beliefs. § 92. General. — Prejudices and religious beliefs on this subject enter more into legislation than into the doings of the courts. But in rare instances it is evident to the looker-ou that they sway 1 Bum Ec. Law, Marriage ; post, ^ Ante, § 75. § 262. ' Gibs. Cod. 445. 38 CHAP. VI.j HISTOKICAL SOURCES, PREJUDICES, ETC. § 94 the incumbent of the bench, though he may not be conscious of it, and may mean to do his judicial duty. Even, — § 93. Refusing to obey Law. — In one case, a judge, dissenting from the majority, refused to concur in a divorce for desertion expressly on the ground that, though authorized by the statute, it was forbidden by the law of God, and he must obey the latter.^ " I must," he said, " elect between a statutory regulation demoral- izing in its every influence and tendency, encouraging a system of kin to free-lovism, and an express divine law. I do not hesitate to disregard the one and observe the other." ^ It is impossible too highly to admire the high impulse which kept this learned person unswerving in the course which he deemed to be of duty. If his ideas of what is the law of God and what is demoralizing differed from those of the majority of people who drink at the same Fountain of Truth with himself, he was right in following his own convictions, not another's. And in every view he is to be commended for plainly refusing to enforce the law, instead of attempting to nullify it by misinterpretation. But a different question presents itself to others ; namely, whether a Christian man should accept a judicial position, and take the oath of office, with the secret reservation that he will denounce the legislative body whose behests he swears to carry out, as a violator of the divine commands, and refuse to execute what it enacts. Some would, at least, recommend, as preferable, a withdrawal from the bench when a question of this sort arises. In the instance under consideration the majority said : " Doubting, as we do, the policy of our statutes in allowing so many causes of divorce not pre- scribed by the great Author of Marriage, we are nevertheless constrained to give effect to those laws so long as they remain upon the statute-book, especially as the power to enact them is expressly conferred on the legislature by the constitution." ^ Fur- ther as to which, — ■ § 94. The True Rule — is in reason plain ; namely, not only to enforce the divorce statutes as expressions of the legislative will,* but also to interpret them in the spirit which prompted their enactment. A judge has no power to create law, nor is he responsible for the laws he executes. And every statute should 1 See, as to this sort of question, Bishop s Opinion by Nelson, J. First Book, § 88-92. * Watts, J. in Bahn v. Bahn, 62 Tex. 2 Turney, J. in Lanier v. Lanier, 5 518, .520, 521, 50 Am. R. 539. Heisk. 462, 472. 39 § 96 GENERAL AND FUNDAMENTAL. [BOOK I. be examined and expounded by the judges from the point of observation at whicli its makers stood, and from the lights there prevailing, while bringing it into being.i In this way do our judges generally deal with the divorce statutes, so that we have harmony of administration in spite of the discords of legislative opinion. And all deem it to be a special duty of the tribunals in these causes to see that the laws are not evaded, and that divorces are granted only to parties entitled to them. Still, — § 95. Prejudiced Interpretations. — In spite of the general bet- ter fact, the subsequent elucidations of these volumes will dis- close an occasional, yet rare, instance in which the holding of a court, upon a statute or the unwritten law, can hardly be deemed the product of minds neither prejudiced nor swayed by religious dogma. Yet, on the whole, at the time of the writing of these New Commentaries, the judicial condition of tlie law of the sub- ject is admirable. 1 See Bishop Written Laws, § 70, 75, 235. 40 CHAP. VII.J ENGLISH ECCLESIASTICAL LAW. § 98 BOOK II. PRACTICAL PRELIMINARIES. CHAPTER VII. THE ENGLISH ECCLESIASTICAL LAW. § 96. Introduction. 97-99. In General. 100-109. Origin and Nature of English Ecclesiastical Law. 110-113. The Ecclesiastical Judges and their Decisions. 114. Doctrine of Chapter restated. § 96. How Chapter divided. — We shall consider, I. In Gen- eral of this Subject; II. The Origin and Nature of the English Ecclesiastical Law ; III. The Ecclesiastical Judges and their Decisions. I. In G-eneral of this Subject. § 97. Source of our Law. — When this country was settled from England, and we derived thence our unwritten law, marriage and divorce causes were there heard in the ecclesiastical courts. Our unwritten law of the subject, therefore, is the law which was then administered in those courts. Hence the importance of the explanations of this chapter. § 98. Ecclesiastical Courts. — These courts, at the present time in England deprived of their divorce and probate jurisdiction, are regular tribunals of the country as truly as the others. For though their judges derive their commissions directly from the functionaries of the Church, yet indirectly and really they are 41 § 101 PRACTICAL PRELIMINARIES. [bOOK II. from the Crown, because the sovereign of England is the head of the English Church.^ § 99. Jurisdiction in Matrimonial Causes. — How the Church, first on the Continent, and afterward in England, Scotland, and elsewhere in the British Islands, gradually obtained jurisdiction over various things relating to civil affairs, is matter of history not belonging particularly to these pages. Matrimonial causes were naturally within her sway, because marriage was one of her sacraments ; ^ and so there was always less question of the right- fulness of her authority over them than over many others.^ II. The Origin and Nature of the English Ecclesiastical Law. § 100. Ecclesiastical and Lay Jurisdictions blending. — " The Anglo-Saxon common law never recognized the principle of a separate civil or criminal jurisdiction as exercised by the Church ; though, either out of respect for the sacred character of its mem- bers, or from a sense of their superior learning and intelligence, it had certainly admitted the Episcopal order to a participation in the municipal judicature of the country. For, ever since the introduction of Christianity into England, the bishops had sat to hear causes in the County Court, in conjunction with the ealder- man or his sheriff ; " * greater deference " being paid," says Black- stone, " to the bishop's opinion in spiritual matters, and to that of the lay judges in temporal. This union of power," he continues, " was very advantageous to them both : the presence of the bishop added weight and reverence to the sheriff's proceedings ; and the authority of the sheriff was equally useful to the bishop, by en- forcing obedience to his decrees in such refractory offenders as would otherwise have despised the thunder of mere ecclesiastical censures." ^ But, — § 101. Separation — Origin of Ecclesiastical Courts — (Prohibi- tion). — After the Norman Conquest, and the extensive introduc- tion into England of foreign ecclesiastics, who succeeded to the 1 1 Bl. Com. 279, 280; Walker v. 134. See also post, § 109. And see Wood- Lamb, Cro. Car. 258 ; Pratt v. Stoeke, ward v. Fox, 2 Vent. 267. Cro. Eliz. 315; Eeaurain . Raymond, 4 Cush. 314, 2 Bishop Written Laws, § 120, 188, 316; Crocker u. Crane, 21 Wend. 211,34 189(/, 191, 192. Am. D. 228 ; Matthews v. C. 18 Grat. 989 ; s Sams V, Sams, 85 Ky. 396. Blanchard v. Sprague, 3 Sumner, 279 ; * Bishop Written Laws, § 63. Brinsfield v. Carter, 2 Ga. 143; Torrance ■^ lb. § 41, 81, 82; Quin v. O'Keefle, 10 v. McDongald, 12 Ga. 526 ; Beals v. Hale, Ir. Com. Law, 393 ; Pretty v. Solly, 26 4 How. TJ. S. 37. Beav. 606; Allen v. Parish, 3 Ohio, 187, ^ Bishop Written Laws, § 4, 86, 123. 72 CHAP. IX.] MODERN STATUTES. § 168 ing;^ inaccurate expressions be given the signification which, on considering the whole, appears to have been intended ;^ and what is in derogation of the unwritten law construed strictly.^ Thus, — § 166. Divorce, Separation, Nullity. — As matter plain and un- questioned, we shall in various connections see, that, by a com- mon method of statutory expression, a " divorce " is authorized, perhaps in a single sentence, for adultery, fraud, cruelty, impo- tence, and so on, with no specification of the sort of sentence or proofs. Yet, for explanation, we look into the rest of the law of the subject, written and unwritten. And thus we learn, perhaps, that the " divorce " for cruelty is to be from bed and board ; for adultery, from the bond of matrimony ; for fraud, or for impo- tence, a declaration of nullity ; and that a part of the causes must have existed at the time of the marriage, while another part must not have existed then, but have arisen afterward. And thus also we find the judgment for one cause to be, that there never was a marriage ; for another, that there was a marriage, but it is dis- solved ; and for another, that there was a marriage, and it shall continue, but the parties shall live apart as though there were none. It is easy to interpret these statutes, though their lan- guage shows that the legislature did not know what it was about when enacting them. But in the course of these volumes we shall come upon others, contradictory in woi'ds, and defying rea- son and law together, the rendering of which will be sufficiently troublesome. For example, — ^ §167. Consent. — The unwritten law makes.it impossible for one to assume the status of a marriage to which he docs not con- sent. Natural justice, too, affirms this rule. And in some of our States the statutes add their affirmance. Then, when all this has been done, a statutory provision, in terms, declares that a marriage to which the party did not or could not consent shall be void only from the time when its nullity is judicially decreed, during the joint lives of the parties ! Under various titles this sort of matter will come again into notice. § 168. The Doctrine of this Chapter restated. More or less statutes have, from time to time, been enacted on this subject both in England and the United States. But in Eng- 1 Biahop Written Laws, § 118-121, 134-140. 2 lb. § 81. s lb. § 155. 73 § 168 PRACTICAL PRELIMINARIES. [BOOK II. land, until 1858, the causes of divorce and nullity, and the juris- prudence relating thereto, depended cliieflj upon the unwritten law administered in ecclesiastical courts. In that year, some causes theretofore unknown were added, and the jurisdiction was transferred to a lay tribunal. In this country, the ecclesiastical law of the mother country became at the settlement common law, but it was a long while before we had judicial tribunals to admin- ister it. Yet by lying thus without a jurisdiction it was not anni- hilated. With our statutes, giving a jurisdiction, came also new provisions. Yet the statutes were administered in connection with and as parts of the law which we brought from England, and which furnished what may be deemed the jurisprudence of the subject. Some of them are absurdly drawn, and their in- terpretation is among the hard taslis of our courts. The power to legislate is, with us, as to marriage and divorce within the State lines, in the several States ; outside of State lines, it is in Congress. 74 CHAP. X.] OUR JUDICIAL AUTHORITIES. § 171 CHAPTER X. OUR JUDICIAL AUTHORITIES. § 169. Introduction. 170-177. Books of Ecclesiastical Law. 178-180. Other Books. § 169. How Chapter divided. — We shall consider this subject as to, I. Books of the Ecclesiastical Law ; II. Other Books. I. Books of the Ecclesiastical Law. § 170. Reports and Text-books — of the ecclesiastical law are the sources frora which a knowledge of it may be acquired. An- tedating the reports are some — § 171. Old Text-books — (Godolphin — Oughton — La'w's Forms). — All the old English text-books appear to contain a greater or less admixture of the Roman canon law, without any proper dis- crimination as to what has been adopted in England. We may, however, give prominence to two, now accessible, denominated by Lord Stowell " the oracles of our own practice, Godolphin and Oughton." 1 The former, written in English, is entitled " Be- pertorium Canonicum ; or, an Abridgment of the Ecclesiastical Laws of this Realm, consistent with the Temporal." The third edition of this work was published in London in 1687. The first was in 1678.^ The same author has left a work, sometimes re- ferred to, called the " Orphan's Legacy," and another on " Ad- miralty Jurisdiction." Judge Story has quoted him as " a very learned admiralty judge." ^ The latter of the before-mentioned works of ecclesiastical law, written in Latin, and published in ' Briggs V. Morgan, 3 Phillim. 325, 1 his,death, and does not appear to the first Eng. Ec. 408, 409. edition of his work, and is considered of 2 In Martin v. Mackonochie, 4 Q. E. D. no authority." 697, 707, it is said by counsel : "The ap- 8 In Chamberlain u. Chandler, 3 Mason, pendix to Godolphin was published after 242, 245. . 75 § 174 PRACTICAL PRELIMINARIES. [BOOK II. two quarto Tolumes in 1738, is entitled " Ordo Judiciorum sive Methodus Procedendi in Negotiis et Litibus in Foro Ecclesiastico- Civili Britannico et JTibernioo." ^ The first part of this work was in 1831 translated by Law, a provincial ecclesiastical judge, who incorporated with it some portions of Clarke, Conset, Ayliffe, Cockburn, Gibson, and others, entitling the whole " Forms of Ecclesiastical Law, or the Mode of conducting Suits in the Con- sistory Courts." This translation has gone into a second edi- tion. The translator in his preface pi'omised the second part of Oughton, but it has not appeared. The most of what is valuable both in Godolphin and Oughton has found its way into other and more modern collections. § 172. Ayliffe — Gibson. — There are two other of these old English works, worthy of note. One, cited as Ayliffe's Parergon, and published in 1726, is entitled " Parergon Juris Canonici Anglicani ; or, a Commentary by way of Supplement to the Canons and Constitutions of the Church of England, not only from Books of the Canon and Civil Law, but likewise from the Statute and Common Laws of this Realm." This is a convenient work for reference, but it contains much that is clearly not Eng- lish law. It is a folio volume of between five and six hundred pages. The other work, probably of more value and authority, is Gibson's " Codex Juris Ucclesiastici Anglicani ; or,' the Statutes, Constitutions, Canons, Rubrics, and Articles of the Church of England; methodically digested under their Proper Heads, with a Commentary, Historical and Juridical.", The second edition, enlarged by the author, was published at Oxford in 1761. It is in two folio volumes, containing together above sixteen hundred pages. Coleridge, C. J., has said of it : " Gibson's inaccuracy is well known to those wlio have had much to do with his book." ^ Besides these, — § 173. others. — There are some other old books of less note, which we need not pause to mention. § 174. Later Text-books — (Burn — Rogers). — Of later pro- ductions, Burn's Ecclesiastical Law, in four volumes, is familiar to the profession. It is a useful compilation, or digest ; for such 1 For a somewhat lower estimate of the practice, see Hope v. Hope, 1 Swab, this book, especially of the part which & T. 94. pertains to the law in distinction from ^ Martin v. Macltonochie, 4 Q. B. D. 697, 767, note. 76 CHAP. X.] OUR JUDICIAL AUTHORITIES. § 175 is substantially its character, it having little claim to be consid- ered an elementary treatise ; and it does not attempt any original elucidations of legal doctrine. The ninth edition, greatly en- larged and improved by Phillimore, was published in 1842. We have also Rogers's " Practical Arrangement of Ecclesiastical Law," in one volume, — an excellent compilation, following sub- stantially the plan of Burn, of whose work it is a sort of abridg- ment, and resembling a nisi prius treatise. The second edition was published in 1849. § 175. Reports. — There are no regular reports of decisions in tlie ecclesiastical courts prior to 1809. Then begin those of Phillimore, in three volumes, coming down to and including the year 1821. Next we have the reports of Addams, whose two vol- umes, and 284 pages of an unfinished third, carry us into the year 1826. Haggard follows with three volumes, and an unfin- ished fourth, extending to 1833. Curteis next, in three volumes, takes us through 1844. He is followed by Robertson, whose one volume and an unfinished second bring us to 1853. Then we have, in two volumes, the " Ecclesiastical and Admiralty Re- ports," by Spinks, conducting us to 1855. A single thin volume, the earlier part of which is by Deane, and the later by Deane assisted by Swabey, the whole being cited under the joint names of Deane & Swabey, closes the work of reporting, previous to the establishment of the Divorce Court, by act of Parliament, in 1857.1 j}yt though the regular reports go back no further than 1809, the volumes of these contain, in notes or otherwise, many earlier cases. And Dr. Phillimore made a collection, in two vol- umes, of cases decided chiefly between 1752 and 1758, with some of an earlier date, in the Arches and Prerogative Courts and Court of Delegates, containing the judgments of the Right Hon. Sir George Lee, cited as Lee's Reports. We have also two vol- umes, of the highest value, compiled by Dr. Haggard, containing the judgments of Lord Stowell in cases argued and determined in the Consistory Court of London. The dates of most of the cases are from 1790 to 1821. In the Notes of Cases, the Jurist, the Law Journal, and other like depositories of law, are likewise some decisions not found in the regular series. So there are a few in the notes to Poynter's essay on Marriage and Divorce, not found elsewhere. 1 Ante, § 153. 77 § 180 PRACTICAL PRELIMINARIES. .BOOK II. § 176. "English Ecclesiastical Reports." — The before-menuoned English Reports, down to and including Curteis, but excepting the fourth of Haggard, and including Fergusson's Scotch Con- sistorial Reports, were, in a condensed form, republished at Phil- adelphia, in seven Yolumes of close type, under the name of the English Ecclesiastical Reports. The condensation consists chiefly in the omission of cases not deemed important with us. § 177. Milward. — The Irish reports by Milward would appear to be as good law in this country as the foregoing English ones. Perhaps some judges naay not give them quite the same weight of authority. They are in one volume, entitled " Reports of Cases argued and determined in the Court of Prerogative in Ireland, and in the Consistory Court of Dublin, during the Time of the late Right Hon. John Radcliff, LL. D." The period embraced is between the years 1816 and 1843. II. Other Boohs. § 178. What. — It is not proposed to speak of current text- books, English or American, they being presumably known to the reader. As for — § 179. English Reports. — The regular, authorized Reports of the former Divorce Court are — " Reports of Cases decided in the Court of Probate and in the Court for Divorce and Matrimonial Causes," by Swabey & Tristram, beginning with the organiza- tion of the court, and extending down to the commencement of the "Law Reports." They are in four volumes, the last being thin. In the Law Reports, previous to the establishment of the Supreme Court of Judicature, — that is, for the first ten years, — Probate and Matrimonial Causes constitute one of the divisions of the common-law series. Since then, the divorce causes are reported in the " Probate Division," cited " P. D." § 180. American Reports. — We have, in our Country, no sepa- rate series of the reports of matrimonial and divorce causes. They are mingled with the ordinary law and equity reports of the several States. Those of the national judicatories contain a few cases relevant to our subject. 78 CHAP. XI.^ AGREEMENT TO MARRY, BREACH OF PROMISE, § 182 BOOK III. HOW MARRIAGE IS CONSTITUTED AND WHAT ARE ITS NULLITIES. CHAPTER XL THE EXECUTORY AGREEMENT TO MARRY, BREACH OF PROMISE. § 181, 182. Introduction. 183-195. General Nature of Agreement. 196-200. How Agreement proved. 201-211. Capacity, Mutual Promise, Consideration. 212-214. Statute of Frauds. 215-225. Terminations and Rescissions. 226-234. Damages and how Aggravated or Mitigated. 235. Doctrine of Chapter restated. § 181. "Why — How. — The contract considered in this chap- ter, while it commonly precedes a marriage, is not a part of the marriage itself, or of any effect upon its validity. So that strictly its elucidation does not belong to these volumes, and it was not included in the author's original commentaries on " Marriage and Divorce." But the subject is introduced into these New Com- mentaries for the purpose of giving the entire treatment greater fulness and lucidity, as well as because of its practical usefulness. Yet this chapter will be less exhaustive in its doctrines and cited authorities than most of the others. § 182. How Chapter divided. — We shall consider, I. The Gen- eral Nature of this Agreement ; IL How the Agreement is proved ; HI. The Capacity of the Parties, their Mutual Piomise, and otherwise of the Consideration ; IV. How far the Contract is affected by the Statute of Frauds ; V. The Various Termina- tions and Rescissions of the Contract; VI. The Damages and how they may be Aggravated or Mitigated. 79 § 185 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. I. The General Nature of this Agreement. §188. Binding in Law — Breach Actionable. — Though mar- riages and promises to marry are supposed to proceed from sen- timent, and to be superior to pecuniary considerations, yet the law takes cognizance of them as things of money value. And it furnishes pecuniary redress for breaches of the agreement to marry.i The complaining party is oftener the woman ; but the action lies equally by the man against her, or jointly against her and the man to marry whom she broke her engagement.^ Still,— § 184. Peculiar. — As every species of contract derives some- thing from the special nature of its subject, and as marriage is a peculiar institution, largely differing from every other,^ so there are particulars in which the promise to marry is distinguishable from other contracts.* We shall see something of tliQse partic-' ulars as we proceed. Yet, not of this sort, — § 185. Words or not. — Other contracts are commonly made by words, written or oral, under seal or otherwise. But some are the pure creations of the law.^ And the cases are numerous in which, in law or as a violent presumption of fact, a contract iu words will be deemed to have been entered into though not otherwise proved.^ To make a contract in fact, it is simply ne- cessary that, there being an adequate consideration, the minds of the contracting parties come into exact accord.'^ But words are not the only vehicle for ideas. If, for example, one to whom 1 Short 0. Stotts, 58 Ind. 29 ; P. v. courts." Bowen, L. J. in Fiulay v. Chir- Ingham, 38 Mich. 243 ; Malone v. Ryan, ney, 20 Q. B. D. 494, 504, 505. 14 R. I. 614; Harrison u. Cage, Carth.' ^ Harrison o. Cage, 1 Ld. Raym. 386, 467, 1 Salk. 24, 1 Ld. Raym. 386 ; Smith 12 Mod. 21f, 1 Salk. 24. V. Woodfine, 1 C. B. N. s. 660; White v. » Ante, § 5, 6. Thomas, 12 Ohio St. 312; Kerfoot u. * Frost v. Knight, Law Rep. 5 Ex. Marsden, 2 Tost. & F. 160; Paul v. Fra- 322, 327; Hall v. Wright, Ellis, B. & E. zier, 3 Mass. 71, 73, 3 Am. D. 95; Wight- 746, 793; Baldy v. Stratton, 11 Pa. 316; man v. Coates, 15 Mass. 1, 8 Am. D. 77. Wade v. Kalbfleisch, 58 N. Y. 282, 17 Am. " Before the Reformation, no action for R. 250 ; Finlay v. Chirney, 20 Q. B. D. breach of promise could be maintained, 494. for marriage was n matter of spiritual ' Bisliop Con. § 184, 189, 195, 199, 201, jurisdiction. It was not till the middle &c, of the seventeenth century that marriage " lb. § 28, 258-261. was recognized by our law as a temporal ' lb. § 30, 313; Homan v. Earle, 53 benefit, and a breach of promise of mar- N. Y. 267. riage as cognizable by the temporal 80 CHAP. XI. j AGREEMENT TO MARRY, BREACH OP PROMISE. § 187 another has offered an agreement, acts upon it, his conduct is an acceptance, as binding as though verbally expressed.^ And in the criminal law one may make a false pretence by conduct, with precisely the same effect as by words.^ There does not occur to the writer any condition of things wherein the law creates an agreement of parties to intermarry when in fact they have not mutually consented. But all the foregoing principles apply to this agreement to marry, whenever the situation of the particular case furnishes the occasion. And conduct of the parties, while in most instances regarded as mere evidence of what formally transpired between them, may of itself constitute the offer on the one side and the acceptance on the other. So that though a mar- riage agreement may be in writing,^ or in oral language,* it is equally constituted by acts of the parties, leading to the like mu- tual understanding and concurrent expectation and assent, while no direct word on the subject has passed ; though, according to the more frequent course of courtships and engagements, there is a mutual promise in words, and it is evidenced by conduct.^ § 186. Mutual — (Courtship). — One of two persons cannot make a contract alone ; the other must combine with him in exactly the same thing." Hence a mere courtship is not an agreement to marry .^ And where, as in the facts of most cases, the consideration for the agreement consists of the mutual prom- ise, the plaintiff in the breach-of-promise suit must prove as well her own undertaking to marry the defendant as his to marry her,^ the obligations of the parties being mutual.* Like a mere courtship is a mere — § 187. Intent or 'Willingness to Marry. — That one is willing to 1 Bishop Con. § 330-333. 6 Bishop Con. § 29, 30, 313. 2 2 Bishop Crim. Law, § 430. ' Burnham v. Cornwell, 16 B. Monr. 3 Lowe !). Peers, 4 Bur. 2225 ; Russell 284, 63 Am. D. 529 j Walmsley v. Robin- i;. Cowles, 15 Gray, 582, 77 Am. D. 391; son, 63 III. 41, 14 Am. R. Ill; C. v. Dean i\ Skiff, 128 Mass. 174. Walton, 2 Brews. 487. « Ellis V. Guggenheim, 20 Pa. 287 ; » Weaver v. Bachert, 2 Pa. St. 80, 44 Homan D. Earle, 53 N. Y. 267. Am. D. 159, 162; VineaU v. Vene3.s, 4 6 Button V. Mansell, 3 Salk. 16, 64, 6 Fost. & F. 344; Standiford u. Gentry, 32 Mod. 1 72 ; Wightman v. Coates, 1 5 Mass. Mo. 477 ; Espy v. Jones, 37 Ala. 379 ; Roper 1, 8 Am. D. 77 ; Wells v. Padgett, 8 Barb. v. Clay, 18 Mo. 383, 59 Am. D. 314 ; Daniel 323 ; Wilcox v. Green, 23 Barb. 639 ; P. v. Bowles, 2 Car. & P. 553 ; Ellis v. Gug- w. Kenyon, 5 Par. Cr. 254; McCrum v. genheim, 20 Pa. 287 ; Russell u. Cowles, 15 Hildebrand, 85 Ind. 204; Blackburn v. Gray, 582, 77 Am. D. 391. Mann, 85 111. 222; Thurston v. Cavenor, » Allard v. Smith, 2 Met. Ky. 297; Ho- 8 Clarke, Iowa, 155 ; Southard v. Rexford, man v. Earle, 53 N. Y. 267. 6 Cow. 255 ; Homan v. Earle, 53 N. Y. 267. VOL. I. — 6 g]^ § 189 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. marry another, or intends so to marry, or even expresses the intent, is a step short of the agreement, and is not binding.^ §188. Promise interpreted — (Reasonable Time — On Request). — A promise in general terms to marry one, or proved generally while the words of it do not appear, means to marry in a reason- able time.2 And it has been deemed that, in determining what is a reasonable time, the age of the parties, their pecuniary ability, and the other circumstances of the particular case, may all be .taken into the account.^ Lord Kenyon once said, " If the prom- ise is indefinite, the party to whom it is made may call upon the maker to perform it at any convenient time." * A learned Amer- ican judge observed that it is " a promise to marry on request." ^ But he must have meant this utterance to be accepted as qualified in some such way as Lord Kenyon's was, else it was very inad- vertent.^ Surely if a young couple meet at a ball, and agree in general words to marry, the girl cannot require the fulfilment of the bargain before morning, or even the next day before Papa can be notified. Hence in principle, as well as by the general consent of the authorities, the meaning is in a reasonable time. § 189. Breaches. — This agreement to marry is broken in ways similar to other contracts.^ And whether the mutual undertak- ing is to marry at a particular time, or in a reasonable time, the same as when it is to marry on request,^ the doctrine of the law is, in reason, and is fairly well sustained by the authorities, that, since in the nature of the agreement it cannot be fulfilled in the act of marriage by one of the parties without an equal and simul- taneous doing by the pther, if the fixed day or reasonable time elapses with no steps taken by either, this amounts merely to a 1 Cole V. Cottingham, 8 Car. & P. 75. ^ Perhaps not all will recognize the See Phillips t'. Crutchley, 3 Car. & P. 178; distinction which my text here implies. Potter V. Deboos, I Starlc. 82 ; Ellis v. Patteson, J. once said : " I do not see Guggenheim, 20 Pa. 287 ; McPherson u. any rational distinction between the aver- Ryan, 59 Mich. 33. ments of a promise to marry on request 2 Blackburn v. Mann, 85 111. 222 ; Ben- and a promise to marry in reasonable nett V. Beam, 42 Mich. 346, 36 Am. R. time after request." And Coleridge, J. : 442 ; Stevenson v. Pettis, 12 Philad. 468; "The promise to marry within a reason- Potter V. Deboos, 1 Stark. 82. See Phil- able time after request must mean after lips V. Crutchley, 1 Moore & P. 239, 3 request within a time when it might rea- Car. &P. 178. " sonably be made." Short u. Stone, 8 Q. B. 3 Wagenseller v. Simmers, 97 Pa. 465. 358, 369, 370. * Atchinson v. Baker, Peake Ad. Cas. ' For the general law of the subject, 103, 104. see Bishop Con. chapter beginning § 1413. 6 Clark 0. Pendleton, 20 Conn. 495, 505. ^ Ante, § 188. 82 CHAP. XI.J AGREEMENT TO MARRY, BREACH OF PROMISE. § 191 waiver and enlargement of the time,i the contract thus varied in time continues in full force, and neither can sue the other until by some step put in default.^ A common method of putting in default is to aver and prove a request by the plaintiff and a re- fusal by the defendant.^ But, at least by the better doctrine, there need not be, especially on the side of the woman, if the time has been fixed, a formal request or offer of herself ; she need only aver and prove a readiness and willingness. " This doctrine," observes Perkins, J., " is in accordance with the theory tliat the groom should seek the bride, and not subject the prospective bride to the indelicacy of searching for and demanding of the prospective groom the fulfilment of his engagement. ' The man is ducere uxorem.' ' The modesty of tlie sex is considered by the common law,' says Lord Coke. ' It can hardly be expected that a lady should say to a gentleman, I am ready to marry you, pray marry me.' " * The promise, request, and refusal may sev- erally be proved by circumstantial evidence, the effect of which is for the jury.^ So, in this contract following the same rule as in others, — § 190. Marrying Another. — A party who, by marrying another person, disqualifies himself to fulfil his agreement, breaks it.^ And immediately thereon, whether the time for the promised marriage has arrived or not, the injured party may institute the breach-of-promise suit, without averring or proving any request, readiness, or refusal.^ For it would be worse than ridiculous in the woman to ask the already married man to marry her, or to stand prepared to marry him, or to open the way for his refusal to violate the law by polygamy. And, in reason, this conduct of his just as effectually breaks the marriage engagement before the time for its fulfilment as afterward. So does even the — § 191. Refusal in Advance. — If the engaged person, while yet 1 Bishop Con. § 795-797. McCormick v. Robb, 24 Pa. 44 ; Moritz v. 2 Weaver v. Bachert, 2 Pa. St. 80, 44 Melhorn, 13 Pa. 331 ; Willard v. Stone, Am. D. 159, 162; Fible v. Caplinger, 13 7 Cow. 22, 24, 17 Am. D. 496. B. Monr. 464; Blackburn «. Mann, 85 111. ^ Greenup v. Stoker, 3 Oilman, 202; 222; Kelly v. Eenfro, 9 Ala. 325, 44 Am. Prescott v. Guyler, 32 111. 312; Pettingill D. 441. V. McGregor, 12 N. H. 179; Kniffen v. 3 Fible V. Caplinger, 13 B. Monr. 464; McConnell, supra. Stone v. Appel, 12 Bradw. 582; Kniffen « Bishop Con. § 1429. V. McConnell, 30 N. Y. 285; Gough ^-. " Lahey v. Knott, 8 Or. 198; Sheahan Farr, 2 Car. & P. 631 ; Cole v. HoUiday, v. Barry, 27 Mich. 217 ; King v. Kersey, 4 Mo. Ap. 94; Weaver k. Bachert, supra. 2 Ind. 402; Clements v. Moore, 11 Ala. ^ Graham v. Martin, 64 Ind. 567, 571 ; 35; Short «. Stone, 8 Q. B. 358. 83 § 193 MAEEIAGE CONSTITUTED, NULLITIES. [BOOK III. the time for the marriage has not arrived, breaks off the engage- ment, — for example, by announcing his determination not to fulfil it,i — though without marrying another, the default is com- plete, and the injured party may at once bring the breach-of- promise suit.^ And the refusal, like the promise to marry ,3 need not be in words. Acts are equally effective ; as, where the man ceases the usual attentions of courtship without the woman's con- sent, and especially where he also bestows them on another. In one case the learned judge observed : " The true question was, whether the acts and conduct of the plaintiff in error evinced an intention to be no longer bound by the contract. This has been held a correct rule in case of an agreement of sale of personal property.* We think this rule applies with greater reason to a marriage contract, which should rest on mutual affection. His denial that he had ever promised to marry her was of itself very strong evidence of a refusal. Coupled with his acts and persist- ent conduct, it fully justified the jury in finding a refusal." ^ In like manner, — § 192. Married when Promise made. — One who enters into any forbidden contract in honest ignorance of the invalidating fact sustains to it the like relation as though the fact did not exist.^ So that if a single woman receives the addresses of a married man, whom for good reasons she believes to be single, and an engagement follows, she is rectus in curia when she brings a suit for the breach. The man cannot set up against her his wrong in making the marriage promise. But his being already married was a simultaneous breach of it. So the woman, with- out waiting for the time for fulfilment to elapse, may recover her damages.'^ § 193. Conditional. — The marriage promise, like any other, is good if made on a lawful condition, but not if on one unlawful 1 Burtis .;. Thompson, 42 N. Y. 246, 1 4 Zab. 291 ; Willard v. Stone, 7 Cow. 22, Am. R. 516. 17 Am. D. 496. 2 Bishop Con. § 1429 ; Frost v. Knight, <> Bishop Con. § 481, 579. LawEep. 7Ex. lU; HoUoway u. Griffith, ^ lb. § 580, 1429; MiUward u. Little- 32 Iowa, 409, 7 Am. R. 208 ; Caines v. wood, 5 Exch. 775 ; Blattmacher v. Saal, Smith, 15 M. &W. 189; Kurtz n. Frank, 29 Barb. 22; Stevenson v. Pettis, 12 76 Ind. 594, 40 Am. R. 275. Philad. 468; Kelley v. Riley, 106 Mass. 3 Ante, § 185. 339, 8 Am. R. 336 ; Coover v. Daven- * Referring to Freeth v. Burr, Law port, 1 Heisk. 368, 2 Am.^R. 706; Wild Rep. 9 C. P. 208. V. Harris, 7 C. B. 999. See further of 5 Wagenseller v. Simmers, 97 Pa. 465, this, post, § 202. 470, Mercur, J. And see Coil v. Wallace, 84 CHAP. XI.J AGREEMENT TO MARRY, BREACH OF PROMISE. § 194 or against the policy of the law.^ For example, an engagement by a married man to marry when a divorce suit pending against his wife is successfully terminated — divorces not being favored by the law,^ and this sort of bargaining being calculated to dis- turb the course of justice in the courts — is void.^ But it a,ppea,rs to be, in England, in doubt wliether or not a married man's under- taking to marry a woman on his wife's death is good.* This sort of bargaining does not interfere with anything in court ; but be- sides being sufficiently scandalous, it is a formal withdrawal of the love on which a marriage, favored by the law,^ rests, and at the same time is an incitement to murder. How can it be other- wise than an infraction of the policy of tlie law ? § 194. Personal • — Not survive. — Though, at common law, an action will ordinarily lie by or against an executor or adminis- trator on a contract of the deceased violated in his lifetime, since in most instances the matter of it concerns his estate ; yet neither by the common-law rules, nor under a statute providmg for the survival of actions on any contract of or with the deceased, can a suit for breach of marriage promise be brought or carried on by or against the executor or administrator. For wliile in form this action is on a contract, in effect it is for a personal tort, which, in its nature, dies with the person, according to the maxim Actio personalis moritur cum persona.^ And the statute, which must be interpreted in harmony with the common law, and to carry out the true legislative intent,'' will not vary this result. The judicial opinions intimate, and justly in point of principle, that if the estate has suffered through the contract and its breach, in a man- ner distinct from the suffering of the person, an action for this special damage may, on a particular allegation and proof of it, be maintained. And still the author is not aware that a case within this exception has been adjudged either in this country or in Eng- land.^ It was once sought to maintain this action against the ex- 1 BishopCon. §469-477,487, 608, 1364; ' Bishop Written Laws, § 70, 75, 82, Cole V. Cottingham, 8 Car. & P. 75 ; Con- 123, 131-133, 139. rad V. Williams, 6 Hill, N. Y. 444 ; Kurtz 8 Grubb w. Suit, 32 Grat. 203, 34 Am. V. Frank, 76 Ind. 594, 40 Am. K. 275. R. 765 ; Finlay v. Chirney, 20 Q. B. D. 2 Ante, § 38, 39. 494 ; Chase v. Fitz, 132 Mass. 359 ; Wade 8 Noiceu.Brown, 9 Vroom,228, 20Am. v. Kalbfleisch, 58 N. Y. 282, 17 Am. R. R. 388, 10 Vroom, 133, 23 Am.E.213. 2.50; Flint v. Gilpin, 29 W. Va. 740; * Millward v. Littlewood, 5 Exch. 775. Chamberlain v. Williamson, 2 M. & S. 6 Ante, § 38, 39. 408; Stebbins v. Palmer, 1 Pick. 71, H " Broom Leg. Max. 2d ed. 702. Am. D. 146; Smith v. Sherman, 4 Cusb. 85 § 197 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. ecutors of a deceased man who had broken his marriage promise, on the allegations that the woman in reliance on it had bought some underclothes which otherwise " she would not, and after breach had maintained herself instead of receiving support from him, but the court refused.^ Liliewise the bearing of a child out of wedlock, in reliance on the promise of marriage, has been adjudged not to constitute special damage within this doctrine.^ So, — § 195. Bankruptcy. — It is reasonably evident that the right of action for a breach of marriage promise does not pass by an assignment in bankruptcy.^ II. How the Agreement is proved. § 196. Circumstantial. — Since commonly marriage proposals and their acceptance do not transpire in writing or in public, but pass orally between the parties in private, while yet the ob- served conduct of engaged persons toward each other will ex- hibit more or less of what is special to this relation, the proof of the engagement cannot often consist of the testimony of third persons to their words ; but, until parties to suits were made wit- nesses, as they are in most of our States, it ordinarily could be evidenced only by their acts. Otherwise expressed, the proofs '^were for the most part circumstantial, — a species of evidence as good and conclusive as any other.* The whole case — namely, the promise to marry, the acceptance of it, the request to fulfil it, and the refusal, severally and collectively — may be established by this species of evidence.^ Thus, — § 197. Mutual Behavior. — When marriageable persons conduct toward each other as engaged parties commonly do, and as those who are not engaged do not, the reasonable and fair inference is that they are in fact what they thus hold themselves out to be, engaged ; and in a breach-of -promise suit the jury is justifiable 40S; Lattimore v. Simmons, 13 S. & R. ^ Gmbb v. Suit, 32 Grat. 203, 34 Am. 183; Hayden i^. Vreeland, 8 Vroom, 372, R. 765, 770; Dillard a. Collins, 25 Grab 18 Am. R. 723. But see, as to the effect 343. of the statute, Shuler v. Millsaps, 71 N. C. * 1 Bishop Crim. Proced. § 1073-1079. 297; AUeu v. Baker, 86 jST. C. 91, 41 Am. » Greenup o. Stoker, 3 Gilmau, 202; K. 444. Prescott ... Guyler, 32 111.312; Pettingill 1 Pinlay v. Chirney, supra, p. 507. v. McGregor, 12 N. H. 179; Kniffen v. And see dictum of Esher, M. R. p. 500. McConnell, 30 N. Y. 285 ; Munson v. 2 Hovey v. Page, 55 Maine, 142; Fin- Hastings, 12 Vt. 346, 36 Am. D. 345. lay V. Chirney, supra, p. 501. 86 CHAP. XI.] AGREEMENT TO MARET, BREACH OP PROMISE. § 198 ill SO finding.^ Within which principle, it is competent to show a course of correspondence by letter between them ; ^ though, standing quite alone, and with no evidence of its special nature, it could hardly be deemed enough. By this sort of proofs may be established that principal part of every case which consists of the offer and its acceptance. But — § 198. Behavior of One. — A less part — for example, the accept- ance of the offer by the female plaintiff — may be made to appear in a like way ; namely, by her conduct.^ There is a case which holds that if she proves only the defendant's offer (the word in the opinion is the still stronger one "promise"), she cannot establish her acceptance of it by simply showing preparations for marriage made in his absence, and of which he had no knowl- edge ; though it was admitted that there are cases * the other way.^ In principle, there may be circumstances wherein acts and admissions of the female plaintiff, unknown to the defend- ant, may not in the absence of other evidence of her consent go far enough ; but surely, when the condition of her mind upon the subject becomes important, these are the proper evidences of it. And there may be a difference between an offer and a promise of marriage. A man offers marriage to a woman whose mind he does not know. He promises it to one whom he believes to be willing. In this view, it is difficult to deny the correctness of cases which hold, for example, that if a man's promise of marriage, which in its nature assumes the woman's consent, is proved, she to make clear to the jury its mutuality may show her invitation to one to be present at the wedding,^ or in any other form her declaration to her friends of the engagement,' her acqui- escence in his assumption of her consent thus appearing in her act. 1 Wagenseller v. Simmers, 97 Pa. 465 ; * PeppiDger v. Low, 1 Halst. 384 ; Mo- Vandei-pool v. Richardson, 52 Mich. 336; ritz v. Melhorn, 13 Pa. 331 ; Wetmore v. Waters v. Bristol, 26 Conn. 398 ; Wight- Mell, 1 Ohio St. 26, 59 Am. D. 607. man v. Coates, 15 Mass. 1, 8 Am. D. 77; * Russell v. Cowle*, 15 Gray, 582, 77 Coil V. Wallace, 4 Zab. 291 ; Hubbard v. Am. D. 391, approved in Graham v. Mar- Bonesteel, 16 Barb. 360; Perkins v. Her- tin, 64 Ind. 567. More particularly as to sey, 1 R. I. 493; Munson u. Hastings, 12 which ease and the question, see McPher- Vt. 346, 36 Am. D. 345 ; Whitcomb o. son v. Ryan, 59 Mich. 33. Wolcott, 21 Vt. 368 ; Tefft v. Marsh, 1 « McCormick v. Robb, 24 Pa. 44 ; Mo- W. Va. 38. ritz v. Melhorn, 13 Pa. 331. 2 Hoitt V. Monlton, 1 Fost. N. H. 586 ; ' Leckey v. Bloser, 24 Pa. 401 ; King Conaway v. Shelton, 3 Ind. 334 ; Richmond v. Kersey, 2 Ind. 402 ; Wetmore v. Mell, V. Roberts, 98 111. 472. 1 Ohio St. 26, 59 Am. D. 607; Cates v. 3 Huttonu. Mansell, 3 Salk. 16, 6 Mod. McKinney, 48 Ind. 562, 17 Am. R. 768. 172. 87 § 200 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 199. Other CircumstantiaL — It is in the nature of circum- stantial evidence that both the admission and the effect of a ten- dered item will depend upon what goes with it. The facts of cases are infinite in their varieties. In some, perhaps in most, it may be both permissible and important to show how the ac- quaintance began,! qj. j^g general course,^ or the woman's appar- ently sincere attachment to the man ; ^ or a prior engagement, and the breaking off of it, may be important.* But it is not often that what the neighbors and friends said is admissible on this issue.^ The fact of the woman's unchastity was in one case deemed admissible ; ^ in another, it could not be shown that tlie woman was gotten with child and suffered a miscarriage ; ^ in another, proof of her pregnancy by the defendant was deemed to furnish no inference of his promise to marry her.^ Circum- stantial evidence is accepted, not because there is no other, though in the particular instance there may be none, but be- cause it legitimately tends to establish the issue. And it is every-day practice in the courts to submit to the jury both circumstantial and direct proofs of the same thing. Hence, — § 200. Parties being Witnesses. — In principle, under our mod- ern statutes making the parties witnesses, the fact that they are such, or that on the particular trial they have testified, does not render inadmissible the circumstantial evidence which was com- petent before. At the same time, their direct testimony, if be- lieved by the jury, may leave unimportant a consideration of the circumstantial evidence. And there are cases in which the judges seem to have looked upon this change in the law as a restriction upon the former rules.^ The true view is believed to be that the restriction is only practical, not legal.^'' The English statute of 32 & 33 Vict. c. 68, § 2, declares competent the evidence of the parties in these breach-of-promise cases, but forbids a verdict upon it "unless his or her testimony shall be corroborated by some other material evidence in support of such promise." ^^ ' Daly V. McDonald, 23 Conn. 570. 8 Hay v. Graham, 8 "Watts & S. 27. 2 .Johnson v. Leggett, 28 Kan. 590. " Homan o. Earle, 53 N. Y. 267, 270, " Sprague v. Craig, 51 111. 288. 271 ; McPherson v. Ryan, 59 Mich. 33. < Ray V. Smith, 9 Gray, 141. i" And see Kurtz v. Frank, 76 Ind. 594, 5 Healey v. O'SuUivan, 6 Allen, 114; 40 Am. R. 275; Hotchkins n. Hodge, 38 Willard u. Stone, 7 Cow. 22, 17 Am. D. Barb. 117; Lawrence v. Cooke, 56 Me. 496. 187, 96 Am. D. 443. 6 Smith V. Braun, 37 La. An. 225. " Bessela v. Stern, 2 C. P. D. 265. ' Giese v. Schultz, 65 Wis. 487. CHAP. XI.] AGREEMENT TO MARRY, BREACH OP PROMISE. § 20S III. The Capacity of the Parties, their Mutual Promise, and otherwise of the Consideration. § 201. Doctrine defined. — The doctrine of this sub-title is, that marriage is a thing of value,^ so the agreement to marry must be founded on a consideration, between competent pai-ties, and not violative of the policy or any rule of the law. Thus, — § 202. Already Married. • — We have seen that a single woman may have her breach-of-promise action against a married man whom she believes to be single, if he contracts to marry her.^ Or, let us here add, she may at her election maintain against him an action of tort for the same wrong.^ Or if, thus deceived by him, she takes the further step and marries him, she may have against him the like action of tort.* ' But a mutual promise of marriage between two persons one of whom is by both known to be already mariied is simply void ; a breach of it by either is no actionable wrong to the other.^ And it is the same where one of the parties is a divorced person, prohibited by the statute from marrying.^ Where the marria,ge promise is made by the woman in ignorance of the man's incapacity, then she discovers it and renews the promise in expectation of a divorce, her right of ac- tion, acquired during the period of her ignorance, remains unaf- fected by these subsequent facts.'' And these several doctrines apply to any — §203. other Incapacity^ — (Consanguinity). — Parties in too near consanguinity, being by law incapable of intermarriage, can- not bind themselves by a mutual promise to marry .^ For their 1 Sheppard v. "Wakeman, 1 Lev. 53 ; 147 Mass. 370. Consult the cases cited in B. c. nom. Shepherd v. Wakeman, 1 Keb. this one, and the principles stated in 255, 269. Bishop Con. § 1441-1447, and the places ^ Ante, § 192. there referred to. 3 Pollock V. Sullivan, 53 Vt. 507, 38 5 Paddock v. Robinson, 63 111. 99, 14 Am. E. 702. Am. R. 112. * Anonymous, Skin. 119; Blossom v. ^ Cropsey u. Ogden, 1 Kern. 228; Hav- Barrett, 37 N. Y. 434, 97 Am. D. 747. iland v. Halstead, 34 N. Y. 643. Services Bendered. — On a question of ' Coover v. Davenport, 1 Heisk. 368, divided opinions, the majority of the Mas- 2 Am. R. 706. sachusetts Court has held that a woman ^ Haviland v. Halstead, 34 N. Y. 643. who innocently lives with a man as his See Roper v. Clay, 18 Mo. 383, .'59 Am. D. wife, under a marriage which she finds 314; Healey u. O'Sullivan, 6 Allen, 114. to be void, cannot on his death maintain ^ Harrison w. Cage, 12 Mod. 214; Camp- against his administrator an action of con- bell v. Crampton, 8 Abb. N. Cas. 363. tract for her services. Cooper v. Cooper, 89 § 206 MAERIAGE CONSTITUTED, NULLITIES. [BOOK III. undertaking to violate tlie law excludes either from suing for a breach by the other.^ Another illustration of this doctrine is — § 204. Impotence. — A New Jersey statute having made void (not voidable, as under the unwritten law) the marriage of a per- son incurably impotent, it was held that the breach of such per- son's promise to marry affords no ground of action.^ There can be no doubt of the correctness of this doctrine, under a statute like this, as applied to a case wherein both parties knew of the impediment. And it would be the same in a case of mutual igno- rance of it ; since impotent persons are not always or necessarily aware of the fact, and a contract under mutual mistake of the controlling fact is void.^ But if a man, knowing himself to be impotent, promises to marry a woman who accepts him in igno- rance of the impediment, the reason of the law, as applied to a married man making the like promise to a single woman who be- lieves him to be single,* holds him to be bound to her, not to enter into a void or even voidable marriage with her, but to compensate her in damages.^ § 205. Under Promise to Another. — - A promise to marry one person does not disqualify the promisor to enter into a valid mar- riage with another. Therefore it is no defence to a breach-of- promise action that either of the parties was under a prior matri- monial agreement.^ § 206. Infancy. —•- The foregoing principles establish that if an infant below the marriageable age^ and a competent person agree to intermarry, the contract is void because it is an at- tempted violation of the law.^ But after the marriageable age has arrived, a marriage by the infant may sometimes be beneficial to him ; therefore, as to him, the agreement to marry with ari adult will be, not void, but voidable.^ And within familiar prin- ciples it cannot be enforced against the infant, who may rely on his non-age to avoid it ; but the infant's action for its breach by the adult is in no degree impaired by the fact of infancy.^'' 1 Bishop Con. § 469-477. 9 Bishop Con. § 924, 925 ; post, § 563. 2 Gulick V. Gulick, 12 Vroom, 13. w 2 Kent Com. 78, 243 ; Coxhead v. 3 Bishop Con. § 588, 695. Mullis, 3 C. P. D. 439 ; Willard o. Stone, * Ante, § 192, 202. 7 Cow. 22, 17 Am. D. 496; Northcote v. 5 And see post, § 218. Doughty, 4 C. P. D. 385; Holt v. Ward, " Eoper V. Clay, 18 Mo. 383, 59 Am. D. 2 Barn. 173, 2 Stra. 937 ; Frost »;. Vought, 314 ; Beachey v. Brown, Ellis, B. & E. 796. 37 Mich. 65 ; Reish v. Thompson, 55 Ind. ' Post, § 562, 568. 34 ; Leichtweiss v. Treskow, 21 Hun, 487j 8 Ante, § 203. Rush v. Wick, 31 Ohio St. 521, 27 Am. R. 90 CHAP. XI.] AGREEMENT TO MARRY, BREACH OP PROMISE. § 209 § 207. Restraint of Marriage — Marriage Brocage. — Since mar- riage is for the benefit of tlie public, therefore favored by tlie law,^ any contract discouraging it — or, as commonly expressed, in restraint of marriage — is void. So likewise, for the same rea- son, is a marriage brocage contract.^ To illustrate : one's wager that he will not marry within six years, no reason appearing why he should not, cannot be the foundation of an action, even if wagers in general ^ could be enforced in the courts.* And void also is a man's bond to marry no one but the obligee, if it omits to cast any corresponding obligation on her ; because it places the maker under a disability to marry except at the option of an- other, who cannot be required to marry him.^ And various other cases, in the form of agreements to marry and otherwise, within like principles, have arisen ; such bargainings cannot be enforced.* § 208. Consideration — (Mutual Promise). — There must be for this contract, as for every other,'' a consideration. But it would be a novel proceeding, and contrary to the habits and opinions of mankind, for a marriageable person to go to the chosen one and offer a given number of dollars for an agreement to marry. Therefore naturally, and almost of necessity, the consideration for the promise on the one side is the promise on the other ; the case being the familiar one, in the ' law of contracts, of mutual promise.* But — § 209. Other Consideration. — Perhaps any other sort of lawful consideration may be adequate. The English Court deemed suffi- cient the allegation tliat the defendant, in consideration of the female plaintiff's going to a place named for the purpose of being married, undertook to marry her there, no promise from her to marry him appearing.^ Still there is here room for a question not 523; Morris v. Graves, 2 Ind. 354; Sim- 616; Harrison v. Cage, I Ld. Raym. 386, mons B. Simmons, 8 Mich. 318; Ditcham 5 Mod. 411 ; Eussell v. Cowles, 15 Gray, V. Worrall, 5 C. P. D. 410. 582, 77 Am. D. 391 ; Vineall v. Veness, 4 1 Aute, § 38, 39. Post. & F. 344 ; Harvey o. Johnston, 6 2 Bishop Con. § 511. C. B. 295 ; Wild v. Harris, 7 C. B. 999 ; » lb. § 530-532. Roper v. Clay, 18 Mo. 383, 59 Am. D. « Hartley v. Rice, 10 East, 22. 314; Weaver v. Bachert, 2 Pa St 80, 44 ' Low I). Peere, cited Lofft. 345 ; 8. C. Am. D. 159 ; McCormick v. Robb, 24 nom. Lovce v. Peers, 4 Bur. 2225, 2230. Pa. 44 ; Daniel v. Bowles, 2 Car. & P. 6 Chalfant v. Payton, 91 Ind. 202, 46 553; Standiford v. Gentry, 32 Mo. 477; Am. R. 586; James i>. Jellison, 94 Ind. Morgan v. Yarborough, 5 La. An. 316, 292, 48 Am. R. 151. 321. ' Bishop Con. § 37-40. « Harvey v. Johnston, 6 C. B. 295, 12 8 Ante, § 186; Bishop Con. § 76-79; Jur. 981. Burks V. Shain, 2 Bibb, 341, 5 Am. D. 91 § 212 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. raised before the court in this case ; namely, whether one's agree- ment to marry a person who does not promise marriage in return is not, like the agreement to marry no other one already stated,^ in restraint of marriage, therefore void. Still, — § 210. Under Seal. — Since a seal imports a consideration, or estops the party to deny it,^ a man's bond under seal, .conditioned to marry a woman named, has been deemed good ; ^ with, on the other hand, some doubt because of its tendency in restraint of marriage.* If such a bond is not enforceable, it is difficult to see how any promise by one, with no corresponding promise by the other, can be obligatory. The true view of such a case appears to the author to be, that the man who has promised to marry a woman with no return promise from her, has simply to offer mar- riage to her; and, if she refuses, he is released, and at liberty to marry any other woman. In this view, this one-sided contract is not in restraint of marriage. Finally, — § 211. Against Law or Public Policy. — A consideration im- moral, violative of law, or otherwise contrary to public policy, is inadequate.^ Thus, a promise of marriage in consideration that sexual intercourse be had before marriage, is void.^ But if it has already transpired the contract is not thereby impaired ; ^ nor is a contract made void by such intercourse during its subsistence.^ IV. Sow far the Contract is affected hy the Statute of Frauds. § 212. " Consideration of Marriage." — The statute of frauds requires contracts in " consideration of marriage " to be in writ- ing. But one's promise to mArry another is not and cannot be in " consideration of marriage ; " since, until after the contract has been fulfilled, there is no marriage; and since otherwise in the nature of the case the thing done cannot be the " consideration " for the doing.^ But, — 1 Ante, § 207. ' Hotchkins v. Hodge, 38 Barb. 117. 2 Bishop Con. § 42, 83, 119. 8 Kelley v. Highfield, 15 Or. 277. 3 Atkins V. Farr, 1 Atk. 287. ^ Bishop Con. § 1267-1271 ; Philpott 4 Cock !!. Richards, 10 Ves. 429. v. Wallet, 3 Ley. 65 ; Cork v. Baker, 1 5 Goodall V. Thurman, 1 Head, 209 ; Stra. 34 ; Short <,-. Stotts, 58 Ind. 29 ; Noice u. Brown, 10 Vroom, 133, 23 Am. Clark v. Pendleton, 20 Conn. 495 ; Og- R. 213. denii. Ogden, 1 Bland, 284; Harrison r. « Hanks w. Naglee, 54 Cal. 51, 35 Am. Cage, 1 Ld. Raym. 386, 387 ; Withers R. 67 ; Boigneres v. Boulon, 54.Cal. 146 ; v Richardson, 5 T. B. Monr. 94, 17 Am. Goodall V. Thurman, 1 Head, 209 ; Stein- D. 44. feld V. Levy, 16 Abb. Pr. n. s. 26. 92 CHAP. XI.] AGREEMENT TO MARRY, BREACH OP PROMISE. § 216 § 213. " "Within a Year." — Like other agreements, this of mar- riage must be in writing if " not to be performed within the space of one year from the making thereof." The interpretation of which statutory provision has been explained by the author in another work.^ To illustrate, — § 214. May or Must. — If by the terms of the agreement the marriage may take place within the year, however strong the probabilities that it will not, the promise need not be in writing.^ An instance of this is where the undertaking is to marry after returning from a contemplated voyage, which is expected to occupy eighteen months ; still it will be good though oral, be- cause it is not impossible that the coming back may be within a year.^ Again, for the same reason, an oral promise to marry within four years is binding.* And it is the same of ah agreement in general terms, not specifying time.^ But, as said before,. if there is a fixed time, more than a year in advance, — as, if the marriage is to be at the end of five years,^ — writing is by the statute required.'^ V. The Various Terminations and Rescissions of the Contract. §215. Distinguished. — There is a wide difference between an agreement of parties to marry and an actual marriage, as to the breaking off of the relation. The former implies and requires the utmost good faith between them, for the lack of which in one party the other may recede. The latter works a change of status, and creates special relations to third persons, to the public at large, and to the law ; so that there can be no dissolution except through the forms of law, for a cause which a statute has ap- proved. As to the former, therefore, — • § 216. Doctrine defined. — Whenever one party has agreed to marry the other under the presumable inducement of a control- ling fact supposed to exist while it did not, or when such fact ex- isted at the time of the promise but was afterward reversed, or when the other's fraudulent representation of something even less 1 Bishop Con. § 1272-1284. ^ Nichols v. "Weaver, 7 Kan. 373 ; ^ lb. § 1274, 1275 ; Paris v. Strong, ,51 Blackburn o. Mann, 85 111. 222. Ind. 339. * Derby v. Phelps, 2 N. H. 515. " Clark V. Pendleton, 20 Conn. 495. ' Nichols v. Weaver, supra; Paris v. * Lawrence r. Cooke, 56 Me. 187, 96 Strong, supra. Am. D. 443. 93 § 219 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. important entrapped him into the promise, he may rescind the agreement, first giving an expressed or implied due notice, where the thing was not within the knowledge of the other. To illustrate, — § 217. Lewd. — If a man promises to marry a woman whom he knows to be lewd, her want of chastity will be no defence to her suit against him for breach of promise.^ But if, presuming her to be chaste, as he may in the absence of evidence to the contrary, he promises, then obtains knowledge of her want of chastity, or if she becomes unchaste after the promise, he is justifiable in break- ing the engagement.^ Within whicli doctrine, he may show in defence of her breach-of-promise suit that she fraudulently con- cealed from him the fact of her having had a bastard child.^ But if he renews his marriage promise after acquiring knowledge of her lewdness, he is holden.* And the parties are equally holden to each other if, after the engagement, they indulge in mutual unchastity." § 218. Incapable of Marriage Functions. — Within and beyond the doctrine stated in a preceding section,^ a man or woman mak- ing a marriage engagement is justifiable in presuming, in the absence of any notice or intimations to the contrary, that the other party is in a fit condition to perform the functions special to marriage ; and either who finds that this is not so in the other may break off the engagement. For example, a man may refuse to enter into a promised man-iage if he learns that the woman has a structural defect incapacitating her for sexual intercourse unless a surgical operation, which she refuses, is performed. And it is immaterial whether or not the defect is sucli as would be adequate in a suit for nullity after marriage.'^ On the other side,' — § 219. One's own Incapacity. — In reason, one who, after prom- 1 Snowman w. Wardwell, 32 Me. 275; 44 Me. 164; Capehart v. Carradine, 4 Johnson ;>. Travis, 33 Minn. 231. Strob. 42; Goodall v. Thurman, 1 Head, 2 Young V. Murphy, 3 Bing. N. C. 54 ; 209. Button V. McCauley,38 Barb. 413; Irving » Bell v. Eaton, 28 Ind. 468, 92 Am. ,-. Greenwood, 1 Car. & P. 350 ; Foulkes D. 329. V. Scllvvay, 3 Esp. 236 ; Bench r. Merrick, * Snowman v. Wardwell, supra. 1 Car. & K. 463; Hunter v. Hatfield, 68 « Johnson v. Smith, 3 Pittsb. 184; Ind. 416; Von Storch v. Griffin, 77 Pa. Kelley ;•. Highfield, 15 Or. 277. 504 ; Espy v. Jones, 37 Ala. 379 ; Wood- « Ante, § 204. ard V. Bellamy, 2 Root, 354; Butler v. ' Griiig u. Lerch, 112 Pa. 244, 56 Am. Eschleman, 18 111. 44; Denslow v. Van R. 314. Horn, 16 Iowa, 476; Berry u. Bakeman, 94 CHAP. XI. j AGREEMENT TO MARRY, BREACH OP PROMISE. § 219 ising marriage, discovers himself or herself to be incapable of performing mai'riage functions, ought not, in morals or in law, to fulfil the promise. If the promisor knew of the incapacity when making the promise, and the promisee was ignorant of it, he should pay damages, as in the ease of a married man agreeing to marry a deceived single woman.^ If both were ignorant of it, the case becomes one of mutual mistake,^ and there are no damages ; if the incapacity arises after the promise, by the visitation of God, there should be no damages ; ^ if, after the promise, it comes through the fault of the party himself, — as, where the man in violation of duty and of morals contracts a venereal disease, and through it becomes unfit to marry, — he should pay damages. In an English case, it was alleged by the defending man, on a suit for breach of promise, that after the marriage agreement was made he became afflicted with a disease occasioning bleed- ing from the lungs, of such sort as to render connection danger- ous to his life, for which reason he refused to enter into the marriage. The jury found this allegation to be true, but nega- tived his further allegation of notice to her. Thereupon the majority of a divided court held that her suit could be main- tained.* Probably, if he had given her due and proper notice of the cause of his refusal, even though she had consented to accept him in this disabled condition, the decision would have been the other way. For surely no man ought to be compelled to live un- der the constant and pressing temptation to do what would cost him his life. On the other hand, neither law nor morals would justify a man in keeping from the woman a knowledge of the nature of his defence to her suit until she had, by actual proceed- ings, placed herself before the public in this sort of action.^ In a North Carolina case, the defendant had refused to fulfil his prom- ise of marriage because afflicted with a venereal disease, render- ins him unfit. And it was held that he would be answerable in damages if the disease was contracted subsequently to the making of the promise ; or, if before, and he knew it to be incurable. Yet if it was upon him at the time of the promise, and he be- lieved it to be only temporary, he was excusable. In no view would the law compel him to the perpetual temptation to put in 1 Ante, § 192, 202. And see Sprague v. Craig, 51 111. 288, 2 Ante, § 204. ' 292. 3 Bishop Con. § 590, 592. * And see Bishop Con. § 681, 832. * Hall V. Wright, Ellis, B. & E. 746. 95 § 221 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. risk " another's health or life, and the possibility of bringing into the world children iu whose constitution the seeds of a father's sin shall lurk." ^ § 220. Discoverable Defects. — Within the rule that a man can- not break his promise of marriage because of the woman's lewd- ness whereof he had knowledge when he made it,^ he cannot set up any other defect known to him. And what is obvious will be presumed to be known. In tlie words of a learned judge : " Wiien a man enters into an engagement of marriage with a woman, he is presumed to have made himself acquainted with her appear- ance, her temper, her manner, her character, and other matters which are obvious to the understanding, and which can be ascer- tained in the social intercourse which usually accompanies court- ship. If he changes his mind and refuses to marry her for a defect which is open to observation, and which he might have ascertained before by reasonable care, it is no defence to an ac- tion for breach of promise of marriage." ^ Obviously, within this doctrine, a man cannot defeat the woman's suit on the ground that he felt the proposed marriage would not tend to the happiness of both parties.* But there are cases of difficulty, and cases on which opinions will differ ; thus, — § 221. Subject to Insanity — Abscess. — In an English ckse, it appeared that after the defendant's promise of marriage, to in- duce which no actual fraud had been practised upon him, he dis- covered that before the promise the woman had been a lunatic and confined as such ; by reason of which he broke his engage- ment. And this fact was held not to constitute a valid defence.^ In another English case, before a jury. Lord Kenyon admitted as sufficient the woman's defence that the plaintiff man had an ab- scess in his breast, whei'eof she was ignorant when she made the promise.^ Assuming, as we may, the correctness of the ''latter decision, we cannot accept the former as harmonizing either with it or with sound principle. Insanity in the constitution, liable to break out at any time, and almost certain to be transmitted either to the children or to a later posterity, in natural reason disquali- fying the woman for motherhood, is almost an impediment to 1 Allen V. Baker, 86 N. C. 91, 98, 41 * Coolidge v. Neat, 129 Mass. 146. Am. R. 444, opinion by Ruffin, J. 6 Baker v. Cartwright, 10 C. B. N. 8. 2 Ante, § 217. 124, 7 Jur. n. s. 1247. 3 Gring v. Lerch, 112 Pa. 244, 249, 56 « Atchinson v. Baker, Peake Ad. Cas. Am. R. 314, opinion by Paxson, J. 103. 96 CHAP. XI.] AGREEMENT TO MARRY, BREACH OP PROMISE. § 225 marriage, and certainly more justly objectionable to the other contracting party than an abscess in the breast. Still, — § 222. Drinking. — That the woman drinks to excess, and sometimes to intoxication, while yet she is chaste, and her gen- eral reputation for sobriety is good, has been held not sufficient in bar of her suit for a breach of marriage promise.^ So — § 223. Brofane Swearing — (Breach of Criminal Law) — by the plaintiff woman has been adjudged inadequate in defence of her breach-of-promise suit. And, said the learned judge, " no case has been found which sustains the principle that a breach of the criminal law in the plaintiff, accruing after the promise, or before the promise, of which the party contracting is ignorant, will necessarily be a bar to a suit. It is a criminal offence for a person to trade or do any work on the Lord's Day, works of necessity and charity excepted, but it cannot be contended that proof of such offence will be a legal answer to an action for a breach of the promise to marry the plaintiff, when it cannot be invoked in a defence in any other action of assumpsit." ^ And still a woman doubtless may be guilty of such crimes as will justify the man in refusing to execute his promise of marriage with her. The cases just considered do not involve the active element of — § 224. Fraud. — Any conduct by one of the parties, amounting" to actual fraud, will justify the other, who has been entrapped by it, in withdrawing from the agreement.^ § 225. Mutual Rescinding. — If parties to a marriage promise mutually relinquish it, the release by each is a consideration for that by the other,^ and neither can afterward maintain a breach-of- promise suit.^ But where, after the man liad told his betrothed that he loved another, she returned to him the engagement ring, the transaction was held not to constitute a rescission. ^ 1 Button V. McCanley, 38 Barb. 413, 1 * Bishop Con. § 812-815. Abb. Ap. 282. ' 6 Shellenbarger v. Blake, 67 Ind. 75 ; 2 Berry v. Bakeman, 44 Me. 164, 166, Dean v. Skiff, 128 Mass. 174; Grant v. opinion by Tenney, C. J. WiUey, 101 Mass. 356. And see Allard 3 Wliarton v. Lewis, 1 Car. & P. 529 ; v. Smitli, 2 Met. Ky. 297. Foote V. Hayne, 1 Car. & P. 545 ; Beachey « Kraxberger v. Roiter, 91 Mo. 404, 60 V. Brown, Ellis, B. & E. 796. Am. R. 262. VOL. I. — 7 97 228 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. VI. The Damages and how they may he Aggravated or Mitigated. §226. General — (Compared). — Most ordinary contracts con- cern only money values, as represented by lands, goods, and the like. If the breach of such a contract brings mental suffering, it is deemed only a secondary consequence, and is not an element in the damages. But a marriage agreement relates primarily to the affections, to the joys and sorrows, and to the solace of do- mestic life. A breach of it, therefore, however followed by loss computable in dollars and cents, directly, and not as a mere sec- ondary effect, produces also that unhappiness which cannot be measured by the pecuniary yardstick. Therefore, as to this part of the case, the law requires the party from whom the injury proceeded to compensate the sufferer, not by the exact and pro- saic damages which are given for a refusal to pay money, or con- vey property, or perform services, but by such estimated damages as a jury, looking at all the circumstances of the case, may deem just. And herein the action for a breach of marriage promise becomes analogous, not to that on an ordinary contract, but to the suit for a tort.^ Therefore, also, — § 227. Twro Elements. — A jury, in making up its verdict of damages in a breach-of-promise case, estimates the plaintiff's pecuniary loss precisely as in a suit on an ordinary contract ; then adds thereto whatever under the circumstances is deemed just for the resulting mental suffering. As to the — § 228. Pecuniary Loss. — In this aspect of the case, " the dam- age which the law affords for a breach of the contract should," to quote the words of a learned judge, " be proportioned to the benefits lost by the breach," and to the advantages which would result from performance.^ Hence the pecuniary condition of the defendant and the consequent benefits of th^ marriage,^ the fact 1 Grubb V. Suit, 32 Grat. 203, 34 Am. 2 Day, J. in Eoyal v. Smith, 40 Iowa, K. 765, 769 ; rinlay !). Chirney, 20 Q. B. D. 615, 619; Coolidge v. Beat, 129 Mass. 494, 504 ; Wilds v. Bogan, 57 Ind. 453 ; 146. ' Hattin t;. Chapman, 46 Conn. 607; Glass- s Royal v. Smith, supra; Dunlap v. cock V. Shell, 57 Tex. 215 ; Collins n. Clark, 25 111. Ap. 573 ; Olson v. Solveson, Mack, 31 Ark. 684; Schreckengast u. 71 Wis. 663; Kniffen v. McConnell, 30 Ealy, 16 Neb. 510; Dupont v. McAdow, 6 N. Y. 285, 289 (Ingraham, J. observing Mont. 226 ; Berry v. Da Costa, Law Rep. that " it may be objectionable to particu- 1 C. P. 331 ; Smith v. Woodfine, I C. B. larize the defendant's property ; and such N. s. 660. evidence should be confined to general 98 CHAP. XI.] AGREEMENT TO MARRY, BREACH OP PROMISE. § 231 that the female plaintiff has no independent means,^ expenses incurred in getting ready for the marriage,^ and any other mat- ter of the like sort may be submitted to the consideration of the jury. Then, as to the — § 229. Mental Sufferings. — The wounded feelings and aiTec- tions,^ the plaintiff's mental pain and mortification,* consequent upon the breach, are elements of damage. And if the complain- ing woman, relying on the man's promise, announced the fact of the engagement and invited her friends to the wedding, creating a special mortification, her damages will be made thereby still greater.^ So they will be, by any other contumely or aggravation attending the breach.^ And evidence of the effect actually pro- duced upon her mind is admissible.^ So, — § 230. In Mitigation. — Though a man's promise to marry a lewd woman is good when he is aware of her character,^ still, if he breaks his promise, he inflicts on her a less injury, in this case of a less valuable contract, than if she were virtuous ; hence her lewdness may be shown in mitigation of damages.® To the like effect, he may prove in mitigation her want of affection for him ; or, it is believed, any other condition of her mind whereby she would less perfectly fill the position of wife.^'^ But evidence that since he broke his promise she has lost her affection for him, and would not now marry him, is inadmissible.^^ § 231. Playing False — (Punitive Damages). — This action ad- mits of punitive damages. '^ And if, for example, the man, not meaning to marry the woman, obtained her affections and reputation as to the circumstances of the Greeuleaf v. McCoDey, 14 N. H. 303; defendant"); Sprague a. Craig, 51 111. Baldy v. Stratton, 11 Pa. 316. 288; CoUins v. Mack, 31 Ark. 684; Ker- ' Bennett v. Beam, 42 Mich. 346, 36 foot u. Marsden, 2 Tost. & F. 160; Ben- Am. R. 442; Bedell y. Powell, 13 Barb. nett V. Beam, 42 Mich. 346, 36 Am. R. 183. 442; Miller v. Rosier, 31 Mich. 475; Hoi- 8 Ante, § 217, loway V. Griffith, 32 Iowa, 409, 7 Am. R. » Burnett v. Simpkins, 24 111. 264 ; 208. Cole V. Holliday, 4 Mo. Ap. 94; Dupont J Vanderpool v. Richardson, 52 Mich. v. McAdow, 6 Mont. 226 ; Butler v. Eschle- 336. man, 18 111. 44 ; Denslow v. Van Horn, •■' Glasscock v. Shell, 57 Tex. 215 ; Dun- 16 Iowa, 476 ; Williams v. HoUiugsworth, lap V. Clark, 25 111. Ap. 573. 6 Baxter, 12. 3 Collins V. Mack, 31 Ark. 684 ; Du- i" Miller «. Rosier, 31 Mich. 475. pont V. McAdow, 6 Mont. 226 ; Glasscock " Miller v. Hayes, 34 Iowa, 496, 11 Am. V. Shell, 57 Tex. 215. E. 154. * Royal V. Smith, 40 Iowa, 615; Cool- ^^ Johnson v. Jenkins, 24 N. Y. 252; idge V. Neat, 129 Mas.'?. 146. Dnpont v. McAdow, 6 Mont. 226; Thorn s Reed v. Clark, 47 Cal. 194. v. Knapp, 42 N. Y. 474, 1 Am. R. 561. 6 Chealey v. Chesley, 10 N. H. 327; § 232 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. promise for an evil purpose, then cast her off, they should be given.^ § 232. Seduction under Promise. — A woman who immorally yields to her seducer and bears a child cannot at the common law have against him an action for the wrong ; because she par- ticipated therein with him.^ In seeming line with this doctrine some have deemed that in her breach-of-promise suit, she cannot show seduction under the promise, and its consequences, in aggra- vation of her damages.^ Yet, looking more minutely into this question, we perceive that in seeking to enhance her damages by this showing, she does not complain of the wrong involved in the immoral act, but of the breach of the moral and commend- able promise of marriage, committed, as a separate transaction, after, perhaps long after, the immoral act transpired. The con- dition of things at the time when the breach occurred, came, even if the woman were the seducer, from the man's voluntary doing, whereof he is not in a situation to complain. The prom- ised marriage, should it transpire, would in a measure atone for, at least it would somewhat cover, the wrong ; and if there were a child, the marriage, occurring before its birth, would give it the status of legitimacy and redeem the woman from the disgrace of being the mother of a bastard. Under these circumstances, therefore, to break the marriage promise is a much heavier of- fence, and in reason it should be followed by heavier damages, than if the conduct of the parties toward each other had be- fore been upright. And so the law is by most courts held, though the reasoning is not in all the cases precisely as here set down.* , 1 Green v. Spencer, 3 Misso. 318, 26 Thompson, 96 Mo. 424 ; Bennett i'. Beam, Am. D. 672 ; Dryden v. Knowles, 33 Ind. 42 Mich. 346, 36 Am. R. 442 ; Hattin v. 148 ; Johnson v. Travis, 33 Minn. 231. Chapman, 46 Conn. 607; Wilds v. Bogan, 2 Bishop Non-Con. Law, § 57, 386. 57 Ind. 453 ; Sheahan v. Barry, 27 Mich. 3 Weaver v. Bachert, 2 Pa. St. 80, 44 217; KeUey u. Eiley, 106 Mass. 339, 8 Am. D. 159; Baldy v. Stratton, 11 Pa. Am. R. 336; Giese v. Schultz, 69 Wis. 316; Burks v. Shain, 2 Bibb, .341, 5 Am. 521 ; Leavitt v. Cutler, supra; Smith v. D. 616. And see Cates v. McKinney, 48 Braun, 37 La. An. 225 ; I'idler v. McKin- Ind. 562, 17 Am. R. 768; Leavitt v. Cut- ley, 21 111. 308; Tubbs v. Van Kleek, 12 ler, 37 Wis. 46 ; Giese v. Schultz, 65 Wis. 111. 446 ; Kniffen v. McConnell, 30 N. Y. 487 ; Wilcox c. Green, 23 Barb. 639 ; Per- 285 ; Wells v. Padgett, 8 Barb. 323 ; kins V. Hersey, 1 R. I. 493. Williams v. HoUingswprth, 6 Baxter, 12 ; * Berry u. Da Costa, Law Rep. 1 C. P. Sauer v. Schulenberg, 33 Md. 288, 3 Am. 331; Millington v. Loring, 6 Q. B. D. R. 174; Conn v. Wilson, 2 Tenn. 233,5 190 ; Sherman v. Rawson, 102 Mass. 395 ; Am. D. 663 ; Whalen v. Layman, 2 Blackf, Giese v. Schultz, 53 Wis. 462; Bird o. 194, 18 Am. D. 157. 100 CHAP. XI.] AGREEMENT TO MARRY, BREACH OP PROMISE. § 235 § 233. Without Marriage Promise. — The element of the seduc- tion just stated, that it was under a promise of marriage, was woven into the elucidations of the last section because in this aspect most of the cases present themselves. But if the reason- ing in that section is accepted as sound, it follows that if tlie same condition of the female is wrought by an unlawful inter- course without seduction, — as, if the parties merely to indulge their passions mutually concur in the act, then a marriage engage- ment follows, — the jury may take into consideration this state of the facts in assessing damages. Perhaps, also, this condition of the case might be considered by the jury even in the man's suit ; yet, on the other hand, it might be difficult to show in what manner the injury or the suffering had become to him greater in consequence of this sort of special fact. Of course, whatever the case, the amount of the damages, whether regarded as common or as aggravated ones, will vary with the particular circumstances. § 234. Manner of the Breaking — Defence. — One who breaks this promise of marriage, as will sometimes happen for reasons satisfactory to himself while yet not adequate in law, ought, as already considered in part,^ to proceed in a way to inflict the least possible injury and suffering upon the other party. And the manner and animus with which he does it are always material on the question of damages.^ In a suit for the breach, the de- fendant may in good faith rely on the plaintiff's bad character, and attempt to prove it, without being mulcted in heavier dam- ages should he fail ; because this is a rightful and just step in an honest defence.^ But if he sets up this defence either reck- lessly or for the purpose of injuring the plaintiff, it will enhance the damages.* § 235. The Doctrine of this Chapter restated. The agreement to marry is quite distinct in its nature and consequences from that mutual consent to present marriage which ' Ante, § 229. * Tidier v. McKinley, 21 III. 308 ; Keed 2 Thorn v. Knapp, 42 N. Y. 474, 1 Am. v. Clark, 47 Cal. 194 ; Simpson v. Black, E. 561. And see Kelly v. Eenfro, 9 Ala. 27 Wis. 206; Blackburn v. Mann, 85 111. 325, 44 Am. D. 441. 222 ; Haymond v. Saucer, 84 Ind. 3 ; Kel- 8 Denslow w. Van Horn, 16 Iowa, 476; ley v. Highfield, 15 Or. 277. And see White V. Thomas, 12 Ohio St. 312, 80 Am. Hunter u. Hatfield, 68 Ind. 416. D. 347 ; Powers v. Wheatley, 45 Cal. 113. 101 § 235 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. superinduces the status. It is a mere executory contract, founded on a consideration, which in the facts of most cases is mutual promise. And in the main it is governed by the same rules as contracts relating to pecuniary affairs. The differences come from the dissimilarities of the thing contracted about. The parties must be persons competent in law to intermarry ; they must act toward each other in good faith ; and any deception, fraud, or vital mistake will invalidate the agreement in favor of either wlio was misled. And after the bargain is entered into, ill conduct in one of them, of a nature and to a degree not quite definable, yet far less than would be required for a divorce after marriage, will justify the other in I'escinding it. So likewise may either rescind it for any supervening incapacity in himself or in the other to fulfil the special duties of marriage. Damages for the breach are not restricted to such as can be measured by the rule of dollars and cents, but, beyond this, the jujy may give what seems reasonable in compensation for wounded feelings, for disgrace and shame, for loss of position in society, and other like evils coming as natural and probable consequences of the breach, or of the special circumstances in which the breach was com- mitted. There are many particulars connected with the subject of this chapter, but a further repetition seems unnecessary. 102 CHAP. XII.] ELEMENTS OP EXECUTED MARRIAGE. § 240 CHAPTER XII. THE ELEMENTS OP EXECUTED MARRIAGE. § 236. Distinguished. — The mutual accord of the parties in the present tense, under tlae forms, if any, which the law has made indispensable, to be treated of in the present and succeed- ing chapters, is an entirely different thing from the agreement to marry explained in the last chapter. It consists of — § 237. Actual Concord of Will. — While, by reason of the pub- lic interests involved, the law favors marriage, both through its presumptions and otherwise, more than it does most other things even of those regarded as favored, considerations alike of the public welfare and of private right restrain it from compelling to matrimony parties who do not accept it and each other vol- untarily. Hence the rule that the marriage status is entered into by contract, and not otherwise.^ Now, — § 238. Comprehends -what — Status in Abeyance. — As, in the nature of the marriage status, it cannot be in abeyance, the con- sent must be to present marriage, not depending on a future con- dition, or to be for an instant postponed.^ And to the existence of this consent several things are necessary, to be elucidated in chapters following ; as, — § 239. Mental Capacity. — In a general way, the capacity of mind which is essential to an ordinary contract^ is required in the parties, to enable them to enter into a valid marriage. But in marriage there are peculiarities, real and supposed, to be ex- plained in a future chapter.* Again, — § 240. Adequate Age. — Like an ordinary contract,^ that by which the marital status is created must be entered into between persons of adequate age. But the latter is governed by very dif- 1 Ante, § 10, 14, 37. * Post, c. 20. 2 Post, § 299, 312, 347. * Bishop. Con. § 892-946. s Bishop Con. § 955-978. 103 § 246 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. ferent rules from the former. They will be stated in a chapter further on.^ § 241. Freedom — is essential to marriage. Though slavery with us is abolished, the consequences of slave marriages are not ended. A chapter, therefore, will be devoted to this subject.^ § 242. Fraud, Error, Duress. — These vitiating incidents, some- times found in ordinary contracts,^ have a like nullifying effect upon marriage. But in marriage they are governed by rules in a degree peculiar. Hence they will require from us, in the fol- lowing pages, a special consideration.* § 243. Concurrence and Mutuality of Consent. — As in other con- tracts,^ so in this of marriage, the parties must, either in fact, or with such intentional seeming as estops denial, mutually and interchangeably concur, at one and the same instant, in making the contract ; namely, to be to each other thenceforward what the law esteems to be husband and wife. There are under this head some peculiarities of doctrine, requiring a full elucidation of the entire topic in subsequent chapters.® And, — § 244. Formalities. — As the law requires various ordinary con- tracts to be entered into with special formalities, in order to ren- der the mutual consent binding;^ so, in some localities, not in others, do the differing laws of the place demand formalities of one sort or another, in addition to the mutual consent, as insep- arable from a valid marriage. This, and illustrative explanations, will constitute the subject of a chapter.* § 245. Consent of Parents — may be important or not, as will be explained in a future chapter.^ §246. T-wo Persons — (Prior Marriage undissolved). — Polyg- amy not being allowed among us, only two persons can sustain one mutual status of husband and wife at the same time. Plainly, if one man and two women should together go through with a ceremony of collective marriage, it would be null. Hence, if a man or woman, being already married, enters in form into a marriage with another however free, it will be null. This impediment of a prior marriage will be considered further on.^" 1 Post, c. 19. ' Bishop Con. § 1228-1285, 1289-1305 ^ Post, c. 21. and other places. ' Bishop Con. § 637-730. « Post, c. 16. * Post, c. 17. » Post, c. 18. s Bishop Con. § 312-334. » Post, t. 24. 6 Post, c. 14, 15. 104 CHAP. XII. j ELEMENTS OP EXECUTED MARRIAGE. - § 251 § 247. Impediments following Divorce. — There can be no hus- band without a wife, or wife without a husband ; therefore, in the absence of any special inhibition of law, a divorce dissolving a marriage leaves both parties free to marry other persons. But it is competent for the legislature to forbid a second marriage ; and, in some of our States, statutes have been enacted in a measure carrying out this power. This also is the subject for a chapter.^ § 248. Race or Civil Condition. — It is likewise competent for legislation to forbid marriage between persons differing in race or civil condition. How far this has been done among us will be shown at the proper place.^ § 249. Consanguinity and Affinity — are impediments to mar- riage, in a degree to be explained further on.^ Finally, — § 250. Impotence. — The two marrying persons must be of dif- fering sex. Therefore certain sexual infirmities, also to be pointed out,* will render the marriage impeachable. § 251. The Doctrine of this Chapter restated. A contract between two marriageable persons, made in the forms prescribed by the law if it has any, creates the status of marriage, which is not a contract. This transition contract, or, to express the idea in another manner, this step whereby two single persons pass forwkrd into matrimony, we are about to con- sider in a series of chapters. In the present chapter, we have taken a sort of advanced and condensed view of what in them is to appear in minuter detail. 1 Post, c. 23. ' Post, c. 25. " Post, i;. 22. * Post, c. 26. 105 § 254 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. CHAPTER XIII. VOID AND VOIDABLE IN MARRIAGE, § 252. Introduction. 253-259. Uncertain and Variable Meanings. 260-264. History of Distinction in Marriage Law. 265-270. Effects in Marriage Law. 271-277. More specifically of Voidable and Dissolution. 278-286. Wbat Marriages Voidable, Void. 287-291. English and American Statutes. 292. Doctrine of Chapter restated. § 252. How Chapter divided. — We shall consider, I. The Un- certain and Variable Meanings of Void and Voidable ; II. The History of the Distinction in Marriage Law ; III. The Effects produced in Marriage Law by the Distinction ; IV. More specifi- cally of the Voidable and its Dissolution ; V. What Marriages are Voidable and what Void ; VI. English and American Statutes. ) I. The Uncertain and Variable Meanings of Void and Voidable. § 253. Other Branches — Elsewhere. — The distinction of void and voidable extends through the entire law. How it is in the law of contracts has been specially pointed out by the author in another work.^ § 254. Flexible. — Though at the first impression this distinc- tion is plain, it is found on examination to be complex, uncertain, and variable. The difficulty, viewed as philological, arises from the fact that the language furnishes but these two words, " void " and "voidable," to convey a considerable number of somewhat diverse ideas and grades of thought.^ Then, — 1 Bishop Con. § 610-622. Brown, 50 N. H. 538, 552 ; Young v. Bil- 2 And see lb. § 610, 616, 617, 619; liter, 8 H. L. Cas. 682; Billiter v. Young, Kearney o. Vaughan, 50 Mo. 284,287; 6 Ellis & B. 1. Seylar v. Carson, 69 Pa. 81 ; Brown v. 106 CHAP. XIII.J VOID AND VOIDABLE. § 259 § 255. In Marriage Law — there is a peculiar sort of voidable, to be explained in this chapter, not pertaining to other depart- ments of the law. And, for clearness, it has been common for judges and writers discussing this subject to term all marriages not voidable in this peculiar way, void ; while some are truly so, and others are voidable in the sense given the word in other branches of the law. This use of language, while it promotes perspicuity in one way, breeds confusion in another. Finally, not all writers express themselves thus ; but some denote as voidable all marriages which are not void as the two words are employed in the law of contracts. Prom these several causes the confusion has become great ; and the readers of our books can understand them only by noting carefully in what sense the individual author, in the particular instance, uses the word.^ § 256. In these Volumes — no attempt is made to employ each of these words in one only exact sense ; for the result would be to leave unexpressed a large part of the ideas because of the want of language to convey them. The reader must judge from the context, as in the case of other words, in which one of the several recognized meanings the author uses a particular one. A book otherwise written would not be in the English language, but in an unknown tongue which the writer had created. Still, — § 257. Approximately defined. — Speaking in general terms, and disregarding minor distinctions, as in definition we are often obliged to, — § 258. Void. — A marriage is termed void when it is good for no legal purpose, and its invalidity may be maintained in any proceeding, in any court, between any parties, whether in the lifetime or after the death of the supposed husband and wife, and whether the question arises directly or collaterally.'^ § 259. Voidable. — A marriage is voidable when in its consti- tution there is an imperfection which can be inquired into only, during the lives of both of the parties, in a proceeding to obtain a 1 For an instance of a misunderstand- ming v. Price, 12 Mod. 432 ; Patterson v. ing by a court, proceeding from a want Gaines, 6 How. TJ. S. 550, 592 ; Fornshill of caution as to thia, see Tomppert v. v. Murray, 1 Bland, 479 ; Mount Holly v. Tomppert, 13 Busli, 326, 26 Am. R. 197. Andover, 11 Vt. 226, 34 Am. D. 685 ; 2 Slielf . Mar. & Div. 479, 480 ; Wilson Rawdon v. Rawdon, 28 Ala. 565 ; Middle- f. Broclcley, 1 Phillim. 132 ; Ferlat u. borough v. Rochester. 12 Mass. 363 ; Hig- Gojon, Hopkins, 478, 493, 14 Am. D. 554 ; gins v. Breen, 9 Misso. 493 ; Smart v. Hantz V. Sealy, 6 Binn. 405 ; Gathings v. Whaley, 6 Sm. & M. 308. See Lyles v. Williams, 5 Ire. 487, 44 Am. D. 49 ; Hem- Bolles, 8 S. C. 258. 107 § 262 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. sentence declaring it null.i Until set aside, it is practically valid; when set aside, it is rendered void from the beginning.^ II. The History of the Distinction in Marriage Law. § 260. Essential. — The nature of the distinction, as peculiar to marriage, can be truly seen only in the light of its history. Thus,— § 261. Restricted Jurisdiction of Common-law Courts. — When, in ancient times, the ecclesiastical courts of England decided causes upon laws derived from the see of Rome and the councils of the Church,^ the common-law judges were presumed to have no knowledge of those peculiar laws. Consequently, whenever a marriage (a thing of ecclesiastical control) was celebrated, they could do no otherwise than hold it valid, since in theory they knew nothing of the legal rules entering into the question.* Hence, for example, a prohibition would not lie from the com- mon-law to the ecclesiastical tribunals, to prevent the latter from dissolving a marriage on the ground of canonical impediments.^ And we may infer, that, in all cases in which the question of the validity of a marriage arose in the common-law courts, and was not referred for decision to the spiritual,^ it was held to be good unless some civil impediment was shown. In this state of things, — § 262. Impediments enlarged — (Consanguinity — AfSnity — Car- nal Knowledge — Dispensations). — The Church extended the im- pediments to marriage further than was pleasing to the civil power. Consanguinity and affinity, even to the seventh degree of the ca- nonical reckoning, which might include the fourteenth degree of the civil law, were at one time made obstructions to the nuptials ; 1 Shelf. Mar. & Div. 483, 484; 1 Bl. 1852. "There would be," he says, "a Com. 434 ; Bonham v. Badgley, 2 Gilman, veritable usurpation over the legitimate 622 ; Cavell u. Prince, Law Rep. 1 Ex. power, if the civil law were to pretend to 246 ; White v. Lowe, 1 Redf. 376. Com- know and judge cases in which the sacra- pare with Alexander o. Nelson, 42 Ala. ment of marriage has been, or has not 462. been, regularly celebrated by the Church." 2 lb,. ; Perry v. Perry, 2 Paige, 501 ; See Pari. Rep. of Div. Com. pub. 1853, Aughtie V. Aughtie, 1 Phillim. 201 ; post, p. 77. § 271 et seq. 6 Harrison v. Burwell, Vaugh. 206, 3 Ante, § 102. 207, 213. ' This is pithily illustrated in the fol- « S. v. Barefoot, 2 Rich. 209 ; Poynter lowing extract from a letter of the Pope Mar. & Div. 167. to the King of Sardinia, dated Sept. 19, 108 CHAP. XIII.] VOID AND VOIDABLE. §263 though marriages in the fourth canonical degree, contracted be- tween infidels who were afterward converted, were not dissolved. ^ And an affinity nearly equivalent to consanguinity was also created by commerce without marriage ; so that a person guilty of fornica- tion could not marry one related to the particeps criminis within a certain part of the prohibited degrees.^ These impediments seemed not the less burdensome though, as an offset, they were often made the means of dissolving uncongenial marriages, indis- soluble by the general ecclesiastical law. Persons within the prohibited degrees might be permitted to marry, on cause shown, by special dispensations from the head of the Church.^ § 263. Stat. 32 Hen. 8. — In these circumstances was enacted 1 4 Reeves Hist. Eng. Law, 58 ; Poyn- ter Mar. & Div. 99 et seq. ; aute, § 89. ^ Rees Cyc. art. Marriage ; Macq. Pari. Pract. 476, 477; Swinb. Spousals, 238. In a modern Scotch case, this kind of affin- ity is denied. Hamilton v. Wyllie, 5 Scotch Sess. Cas. new ed. 668. The Eng- lish legislation, as to it, varied from time to time during the reign of Henry VIII., to suit his changeful domestic relations, as follows: Stat. 25 Hen. 8, c. 22, entitled " An Act concerning the King's Succes- sion," after directing within what degrees marriage.s shall be disallowed, has this clause : § 14, " Provided always, that the article in this act contained concerning prohibitions of marriages within the de- grees aforementioned in this act, .shall al- ways be taken, interpreted, and expounded of such marriages where marriages were solemnized and carnal knowledge was had," — thus excluding, the reader per- ceives, the affinity created by mere sexual commerce. But three years later, the legislative and kingly judgment on this question came into complete harmony with the ecclesiastical ; for 28 Hen. 8, c. 7, entitled also " An Act concerning the Succession of the Crown," after directing, like the previous statute, within what de- grees marriages should not be celebrated, provided, § 10, " that if it chance any man to know carnally any woman, that then all and singular persons, being in any de- gree of consanguinity or affinity as is above written to any of the parties so car- nally offending, shall be deemed and ad- judged to be within the cases and limits of the said prohibitions of marriage." This statute was afterward, in part, at least, re- pealed ; but as late as 1861 there was a case decided by the Matrimonial Court in England, wherein a man sought to avoid his marriage by a decree of nullity, be- cause, before its celebration, he had car- nally known his wife's mother. Learned counsel contended for him, that 28 Hen. 8, c. 7, was, as to the words above quoted, and some other parts, revived subsequently to the repeal, or, if it was not, that the doctrine of the statute should be incorpo- rated by construction into 32 Hen. 8, c. 38. This argument was based on a very re- spectable show of authority, but the full court overruled its conclusion, declining to pronounce the marriage void. Cress- well, the judge ordinary, announced as the result, " that the 28 Hen. 8, c. 7, was repealed and has not been revived, and that the 32 Hen. 8, c. 38, gives the rule by which we are to judge whether parties may lawfully marry or not ; and that rule is, ' That all persons be lawful that be not prohibited by God's law to marry; and that no reservation or prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees.' The prohibitions described in' the 18th chapter of Leviticus seem to us to assume that marriage is necessary to create the degree of affinity which makes a subse- quent marriage unlawful on the ground of affinity." Wing v. Taylor, 2 Swab. & T. 278, 297. ' 4 Reeves Hist. Eng. Law, 59 ; Ayl. Parer. 364. See also the preamble to Stat. 32 Hen. 8, c. 38. 109 § 263 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. 32 Hen. 8, c. 38, which lies at the foundation of the distinction of void and voidable in marriage.^ So much of it as concerns precontract was repealed;^ but the rest remains as a part of the English law,3 modified, in 1835, by 5 & 6 Will. 4, c. 54. No reason appears why it should not be deemed common law with us, and it plainly is such,^ though perhaps not encumbered by all the English interpretations. After reciting^ in the preamble, tliat theretofore " the usurped power of the Bishop of Rome " had made in marriage " that unlawful which by God's word is lawful ; " that many married persons, after cohabitation and the birth of children, had been divorced for precontract ; that " by reason of other prohibitions than God's law admitteth, ... as in iiindred or affinity between cousin-germans, and so to fourth and fourth degree, [and in] carnal knowledge of any of the same kin or affinity before in such outward degrees, which [marriages] else wei'e lawful, and be not prohibited by God's law," many married persons had been divorced ; that " marriages have been brought into such an uncertainty thereby that no marriage could be so surely knit and bounden but it should lie in either of the parties' power and arbiter, casting away the fear of God, by means and compasses to prove a precontract, a kindred and alliance, or a carnal knowledge, to defeat the same, and so under the pretence of these allegations afore rehearsed to live all the days of tlieir lives in detestable adultery," — it enacts, "That from, &c. [a. d. 1540], all and every such marriages as within this Church of England shall be contracted between lawful persons (as by this act we declare all persons to be lawful that be not prohibited by God's law to marry), . . . shall be . . . deemed, judged, and 1 See post, § 280, note, 289, note. pealeil. The statute 1 Eliz. c. 1, repealed '■i " This statute was repealed as to pre- the statute 1 & 2 Phil. & M. c. 8, and that contracts by the 2 & 3 Edw. 6, c. 23, but of itself would have revived all statutes in all other resjjects confirmed." Cress- repealed by the latter, but it proceeds in well, J. in Wing v. Taylor, 2 Swab. & T. express terms to revive certain statutes, 278, 295. and amongst others the statute 28 Hen. 8, ' In Wing V. Taylor, supra, the ques- c. 16, and so much of the 32 Hen. 8, c. 38, tion of what ones of these early English as was not repealed by the statute 2 & 3 statutes are still in force is very fully dis- Edw. 6, c. 23." p. 295. See also post, cussed. As to 32 Hen. 8, c, 38, Cresswell, § 280, note, 289, note. J. says : " By the 1 & 2 Phil. & M. c. 8, * Post, § 289, note. Kilty mentions the whole of the statute 28 Hen. 8, c. 16, this among the British statutes found ap- and all that part of the statute 28 Hen. 8, plicable in Maryland, but its place was c. 7, that concerneth a prohibition to marry early supplied by colonial legislation, within the degrees expressed in the said Kilty Rep. Stats. 164. act, and the 32 Hen. 8, c. 38, were re- ' See post, § 280, note. 110 CHAP. XIII.J VOID AND VOIDABLE. § 264 taken to be lawful, good, just, and indissoluble, notwithstand- ing any precontract or precontracts of matrimony not consum- mate with bodily knowledge, &c. And that no reservation or prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees. And that no person, &c. shall, &c. be admitted in any of the spiritual courts ... to any process, plea, or allegation, contrary to this aforesaid act." ^ Now, — § 264. Ecclesiastical and Temporal Jurisdictions. — As the tem- poral courts were deemed competent to understand, so likewise they exercised the jurisdiction to construe, any act of Parliament, to whatever subject relating. We have seen,^ also, that they had authority to restrain by prohibition the spiritual tribunals, when undertaking to exercise a jurisdiction beyond their limits. In this state of the law, a consequence of the above statute of Henry VIII. was to empower the temporal courts to interfere by prohibition, whenever the spiritual were proceeding to impeach a marriage without the Levitical degrees ; that is, not forbidden by " God's law." ^ But it gave them no new right to interpose when the marriage was within those degrees ; for it was silent as to whether persons within those degrees might intermarry or not.* Therefore the temporal courts did not, subsequently to this stat- ute more than before,^ say whether or not a marriage was void by reason of consanguinity, affinity, or other canonical impediment, not being without the Levitical degrees. Perhaps they might have held it void if incestuous according to the law of nature.® To this proposition there was the important qualification that if tlie spiritual courts undertook to declare a marriage void for a canonical infirmity after the death of one of the parties, the tem- poral interfered by prohibition ; because, they said, it would bas- tardize and disinherit the issue, who could not so well defend themselves as the parties might have done ; yet still they allowed 1 See 2 Inst. 684; Gibs. Cod. 411. Lect. 250; Harrison v. Burwell, Vaugh. There were some other statutes concern- 206. ing marriage, in respect to consanguinity * Butler v. Gastrin, Gilb. Ch. 156. and affinity, passed both before and after The citation, in the report of this case, of Stat. 32 Hen. 8, c. 38 ; but they are neither Stat. 38 Hen. 8, c. 13, is doubtless a mis- important, nor material to the point here print for 32 Hen. 8, c. 38, there being no presented. See Shelf. Mar. & Div. 163 such statute as the former, et .seq. ; Wing v. Taylor, supra. ^ Ante, § 161-163. 2 Ante, § 101. « Post, § 276. 8 Shelf. Mar. & Div. 166 ; 1 Woodd. Ill § 266 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. the spiritual tribunals to proceed criminally against the living offender, for the incest only.^ Consequently, — III. The Effects produced in Marriage Law ly the Distinction. § 265. The Result — (Canonical, Voidable). — If the reader will here pause, he will see that these two jurisdictions, the temporal and spiritual, proceeding as thus described after the enactment of 32 Hen. 8, c. 38, must necessarily have produced, where there was a canonical impediment, precisely what we have termed the voidable in marriage. For in the flexible forms of the ecclesi- astical courts, whenever, during the life of both of the parties, any inquiry into the validity of a marriage arose in them, it took at once the character of a suit for nullity ; since this suit need nei- ther be instituted nor carried on by one of the parties to the mar- riage, it being equally maintainable by any other person having an interest therein.^ Even in a criminal prosecution for incest, in which the office of the judge could be promoted by any one, the marriage would be declared null.^ But when the question of the validity came before the lay tribunals, as it might do collat- erally though never directly, if an impediment of the canonical kind were alleged against it, they, having no knowledge of the canonical laws, and no jurisdiction to inquire into the impedi- ment, could not regard the marriage void by reason of it ; conse- quently, the fact of marriage appearing, they held it, for the purpose of the suit, good. And if the spiritual courts undertook to dissolve a marriage for such an impediment after one of the parties was dead, the temporal restrained them, as just said, by prohibition; while they permitted them to proceed for nullity during the life of the parties. That is, — § 266. During Life or after Death, distinguished. — Waiving all consideration of different tribunals, if the matter was agitated while both parties were living, in what was originally or by the forms of procedure became a suit for nullity, the marriage was pronounced void ; if, in any other form during their joint lives, or in any possible form after the death of one of them, it was held 1 Ray V. Sherwood, 1 Curt. Ec. 193, 193 ; Sherwood v. Ray, 1 Moore P. C. 199, 2 Inst. 614 ; Hinks v. Harris, Carth. 353. 271 ; 8. c. nom. Harris v. Hicks, 2 Salk. 3 Woods v. Woods, 2 Curt. Ec. 516, 548. 529, 7 Eng. Ec. 181, 187 j Chick v. Rams- 2 Ray V. Sherwood, 1 Curt. Ec. 173, dale, 1 Curt. Ec. 34. 112 CHAP. XIII.] VOID AND VOIDABLE. § 270 to be good. And this course of things coincides with the defini- tion already given of a voidable marriage.^ At the same time, if the temporal courts had possessed the jurisdiction to decide upon the canonical infirmities, these, like the civil, would have ren- dered the marriage void. Hence, — § 267. Rule Distinguishing — ("What Void — Voidable). — The rule of the unwritten law, leaving out of view any modifications wrought by our statutes, whereby to determine what marriages are void and what are voidable, is, that the canonical impedi- ments, such as consanguinity, affinity, and impotence, render the marriage voidable, the civil, such as a prior marriage, idiocy, and the like, usually ^ render it void.^ § 268. How established in England. — This distinction of void and voidable, unknown to the ancient common law of England,* but coming thus as the unavoidable result of the workings of the two jurisdictions, became crystallized into the law as a part of the common law itself.^ Had the ecclesiastical courts objected to this result, they were still powerless to prevent it ; so they recog- nized the doctrine thus wrought out, and it prevailed equally in all the tribunals.^ § 269. In Scotland, — where the like cause has not been in operation, the distinction is said to be unknown. '^ Yet there is some doubt of this ; and it seems not to be clear whether or not, where one of the parties to a marriage is impotent, the other is entitled to enter into a second marriage without having the first declared null.^ § 270. "With us, — there is, in reason, no room for doubt. Since, when we derived from England our unwritten law, the distinction of void and voidable was there settled in the way just explained, it became a part of our law, not being unadapted to the altered situation and circumstances of the colonists.^ And 1 Ante, § 259. ^ The ancient common law is now par- '■' Post, § 286. tially restored in England by statutes. 3 Shelf. Mar. & Dir. 154, 1 Bl. Com. Rogers Ec. Law, 2d ed. 635. 4.34 ; Rogers Ec. Law, 630, tit. Marriage ; « Elliott v. Gurr, 2 Phillim. 16, 1 Eng. Elliott V. Gurr, 2 Phillim. 16, 1 Eng. Ec. Ec. 166, 169. 166, 168; Rex v. Wroxton, 4 B. & Ad. ^ Shelf. Mar. & Div. 86; "Wadd. Dig. 640 ; Jaques v. The Public Administrator, 236, note. 1 Bradf. 499 ; CaveU v. Prince, Law Rep. ^ 1 Eras. Dom. Rel. 81 ; Masterton's 1 Ex. 246 ; Bowers v. Bowers, 10 Rich. Case, 1 Swinton, 427. Eq. 551, 73 Am. D. 99. ^ Ante, § 115-149 ; post, § 289 and * Ray V. Sherwood, 1 Curt. Ec. 193, 199. note. VOL. I. — 8 113 §272 MARRIAGE CONSTITUTED, NULLITIES. [book III. SO it always has been accepted and acted on by our courts, never doubted, yet occasionally misunderstood.^ IV. More specifically of the Voidable and its Dissolution. § 271. Good till avoided. — The doctrine" seems to require no qualification, that a voidable marriage is, until the act or sentence transpires which renders it void, as good for every purpose as if it contained no infirmity. Thus, — § 272. Children — Administration — DoTver — Polygamy, &c. — The children are legitimate,^ the husband is entitled to administer on the estate of the deceased wife,* the wife surviving him is en- titled to dower,^ an indictment for polygamy may be maintained 1 In illustration of the misapprehen- sions under which judges occasionally speak, and to correct an error which from its high source might mislead, I quote from the opinion of that eminent Chief-Justice, Euffin, in Gathings v. Wil- liams, 5 Ire. 487, 493, 44 Am. D. 49, as foUows : " There is a distinction in the law hetween void and voidahle marriages, where even they were regularly solem- nized. The latter, which are sometimes called marriages de facto, are such as are contracted between persons who have ca- pacity to contract marriage but are for- bidden by law from contracting it with each other ; as to which, therefore, there was a jurisdiction in the spiritual courts to declare the nullity of the marriage. But until the nullity was thus declared, as an existing marriage it was recognized as valid both in the canou and common law ; and, as there can be no proceeding in the Ecclesiastical Court against the par- ties after their death, or that of one of them, that event virtually makes the mar- riage good ah initio to all intents, and the wife and husband may have dower and curtesy, and the issue will be legitimate. Co. Lit. 32, 33. But where the marriage is between persons one of whom has no capacity to contract marriage at all, — as where there is a want of age or under- standing, or a prior marriage is still sub- sisting, — the marriage is void absolutely and from the beginning, and may be in- quired of in any court." Now, this enun- ciation is inaccurate in several respects. 114 Thus, there was plainly no rule of the ecclesiastical law against declaring mar- riages void for the canonical impediments, after the death of the parties; since in fact the ecclesiastical courts undertook to do this, and were only prevented by pro- hibitions from the temporal, which prohi- bitions were matter of bitter complaint by the ecclesiastical judges ; Ray v. Sher- wood, 1 Curt. Ec. 193, 199, 2 Inst. 614; Harris v. Hicks, 2 Salk. 548 ; though, at length, as we saw in the text, they yielded to the inevitable. Again, it is hardly accurate to say that a marriage is void where one of the parties has no capacity to contract matrimony, and voidable where the incapacity extends merely to a con- tracting with each other. One physically impotent has no capacity to marry any person, yet his marriage is voidable, not void, — impotence being a canonical im- pediment. And where, as in Scotland, the guilty party after a divorce is forbid- den by law to marry with the particeps criminis, there is merely an incapacity in the parties to contract with each other, yet a marriage between them is beyond question void, not voidable. See Cox v. Combs, 8 B. Monr. 231 ; Barkshire v. S. 7 Ind. 389, 65 Am. D. 738. 2 Ante, § 259. 8 2 Burn Ec. Law, Phillim. ed. 450, tit. Marriage ; Bury's Case, 5 Co. 98 6. * Elliott V. Gurr, 2 Phillim. 16, 1 Eng. Ec. 166. 6 Bennington u. Cole, Noy, 29 ; 1 Bl. Com. 434 and note. CHAP. XIII. J VOID AND VOIDABLE. § 276 if a second marriage is had,^ husband and wife may levy a fine,^ and so of all the other consequences of marriage. Still — § 273. The English Ecclesiastical Courts, — while having juris- diction in this class of causes, held that a defendant in a suit for divorce could plead the voidability of the marriage by reason of a canonical defect.^ But this came from the peculiar procedure in those courts, whereby such party was permitted by his respon- sive allegation to make himself substantially a plaintiff, in a man- ner corresponding to a cross action at the common law. If he did not thus plead, the judgment in the divorce suit, it seems, affirmed the marriage, and it could not be avoided afterward.* § 274. After Change of Domicil. — If the parties transfer their domicil to another State or country, the voidable marriage re- mains good in the new locality, at least until set aside. Thus, — § 275. Consanguinity. — In England, prior to 5 & 6 Will. 4, c. 54, the marriage of uncle and niece or aunt and nephew was voidable, though this statute declared it to be void when subsequently cele- brated. Thereupon, in 1834, before the change of law took effect, a man in England married there a sister of his mother. Then the parties removed to Massachusetts, by the statutes of which State, had the marriage been celebrated there, it would have been void. Yet the Massachusetts Court held it to be, while not avoided by suit, good, the same as in England ; in obedience to the well- known principle that marriages valid by the law of the country where celebrated are valid everywhere. But — § 276. Limit of the Rule. — Said Hubbard, J., who delivered the opinion : " There is an exception to this principle in those cases where the marriage is considered as incestuous by the law of Christianity, and as against natural law. And these excep- tions relate to marriages in the direct lineal line of consanguinity, and to those contracted between brothers and sistei's ; and the exceptions rest on the ground that such marriages are against the laws of God, are immoral and destructive of the purity and happiness of domestic life. But I am not aware that these ex- ceptions, by any general consent among writers upon natural 1 S. V. Moore, 3 West. Law Jour. 134 ; Eng. Ec. 548 ; Rogers Ec. Law, 361. See Eex V. Jacobs, 1 Moody, 140; 1 East P. Anonymous, Deane & S. 295. C. 466 ; Reg. V. Burke, 3 Crawf. & Dix * Guest v. Shipley, supra. And see C. C. 96. 'Williams v. Dormer, 16 Jur. 366, 9 Eng. 2 Sabell's Case, 2 Dy. 178 6. L. & Eq. 598. 8 Guest V. Shipley, 2 Hag. Con. 321, 4 115 § 280 MARRIAGE CONSTITUTED, NULLITIES. [bOOK in. law, have been extended further, or embraced other cases pro- hibited by the Levitical law." ^ This topic will be resumed in a subsequent chapter.'^ § 277. Effect of annulling Voidable Marriage. — The doctrine^ has sometimes a limit under the operation of a statute, but it appears to be universal under the unwritten law, that, when a voidable marriage is set aside by a decree of nullity, the parties are regarded as never having been married. For example, the children, before legitimate, become by force of the decree ille- gitimate ; and the late husband is treated as never having ac- quired any right to the property of the wife, though the claims of third persons are to some extent respected. But we shall examine this doctrine more minutely when, in the second volume, inquiring after the consequences of a divorce. V. What Marriages are Voidable and what Void. § 278. Two Classes of Voidable — "What here. —The foregoing expositions, the reader has observed, have been made with a sort of special reference to the lines of distinction created by the conflicts between the ecclesiastical and common-law courts. But the same or a similar voidable may be wrought by other means ; or otherwise thei'e may be, and there is, a voidable, not only varying from this, but having its own differing species. We shall here look at some particulars, but most of this matter will reappear when we are examining the several impediments to marriage. § 279. Canonical — (Consanguinity and Affinity — Impotence). — As already said,* the canonical disabilities render the marriage voidable, not void. They are consanguinity, affinity, and impo- tence.^ This rule has no exceptions, other than have been created by statutes. And — § 280. Precontract. — Perhaps also the antiquated impediment of precontract may be reckoned as canonical. That was where 1 Sutton u. Warren, 10 Met. 451, 452. s Ante, § 259. And see Hiram o. Pierce, 45 Me. 367, 71 * Ante, § 267. Am. D. 555 ; Brook v. Brook, 9 H. L. Cas. 6 Post, § 753, 790 ; Elliott v. Gurr, 2 193, the doctrine of which last case, to Phillim. 16, 1 Eng. Ec. 166; "Whithipole's be considered in , another connection, is Case, cited in Howard u. Bartlet, Hob. not followed by our courts. 181; Rennington v. Cole, Noy, 29; A. u. 2 Post, c. 29. B. Law Kep. 1 P. & M. 559. IIG CHAP. XIII.] VOID AND VOIDABLE. §280 one of the parties to a marriage was under a prior agreement to marry a third person ; or wliere one of them had already mar- ried a third person, but not according to the forms required by the ecclesiastical law. Thereupon the ecclesiastical tribunal would compel the celebration, in due form, of the earlier con- tract or informal marriage, and pronounce the intervening one void from the beginning. But until thus avoided, it was good ; or rather, it was certainly so when the precontract was a mere executory agreement to marry ; possibly, not certainly, when it had even been followed by words of present consent or by copula.^ 1 Baxter v. Buckley, 1 Lee, 42, 5 Eng. Ec. 301 ; Lord Campbell, in Reg. v. Millis, 10 CI. & r. 534, 763, 784. Lord Denman, in this latter case, p. 815, expressed the opinion, in opposition to Lord Campbell, that the matrimonial contracts of which the ecclesiastical courts enforced the spe- cific performance were per verba de pra- senti only, — a proposition apparently con- tradicted by the recitations in the statute of 32 Hen. 8, u. 38. And see Scrimshire V. Scrimshire, 2 Hag. Con. 395, 4 Eng. Ec. 562, 564. According to Swinburne, whose authority on such a question can hardly be disputed, the party refusing to celebrate the marriage might be pro- ceeded against in the Ecclesiastical Court, whether the espousals were per verba de prcesenti or per verba de futuro. But if they were de futuro only, and he had al- ready entered into a duly solemnized mar- riage with a third person, the court would not invalidate it by enforcing a specific performance of the executory contract to marry [see, however, the above-stated statute of Hen. 8] ; or even if he had not, it would not proceed to the signifi- cavit against him, on his refusing to cele- brate a marriage with the plaintiff, but would punish him for the contempt. On the other hand, if the espousals were per verba de prcesenti, or per verba de futuro cum copula, the subsequent marriage with any other person would be annulled ; the defendant would be required publicly to solemnize his marriage with the plaintiff, and be enjoined penance, and on refusal would be excommunicated, and imprisoned by writ out of chancery, until compliance was effected. Swinb. Spousals, 85, 223, 226, 231, 232, 239. See also Holt v. Ward, 2 Stra. 937. The before-mentioned Stat. 32 Hen. 8, c. 38 (see ante, § 263), abol- ished the impediment of precontract, ex- cept when copula had followed; but this branch of the statute was shortly after- ward repealed by 2 & 3 Edw. 6, c. 23. Still later, however, — too late to be mat- ter of consideration when we are inquiring after our unwritten law, — 4 Geo. 4, c. 76, § 27, provided, " That in no case wliatso- ever shall any suit or proceeding be had in any ecclesiastical court, in order to compel a celebration of any marriage in facie Ecclesice, by reason of any contract of matrimony whatsoever, whether per verba de prmsenti, or per verba de futuro, any law or usage to the contrary notwithstand- ing." See Rogers Ec. Law, 2d ed. 645 ; Shelf. Mar. & Div. 164. But as 2 & 3 Edw. 6, c. 23, is of a date sufficiently early to demand consideration when we are in- quiring after the unwritten law of this country, I will transcribe here in full the second section : " That, as concerning pre- contracts, the said former statute [32 Hen. 8, c. 38] shall from the first day of May next coming cease, be repealed, and of no force or effect, and be reduced to the estate and order of the king's ecclesi- astical laws of this realm, which immedi- ately before the making of the said estat- ute in this case were used in this realm : so that, from the said first day of May, when any cause or contract of marriage is pretended to have been made, it shall be lawful to the king's ecclesiastical judge of that place to hear and examine the said cause ; and (having the said contract suf- ficiently and lawfully proved before him) to give sentence for matrimony, command- ing solemnization, cohabitation, consum- mation, and tractation, as becometh man and wife to have, with inflicting all such 117 § 282 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. But this entire matter of precontract, as an impediment, belongs to another branch of our discussion.^ When the precontract amounts to a perfected marriage, tliough not formally celebrated, it ought, in principle, to render the second marriage void, even without judicial sentence. When it does not amount to a mar- riage, there is in this country no judicial power which can compel the celebration, or command cohabitation ; therefore it cannot, with us, constitute an impediment to subsequent marriage. § 281. Fraudulent Divorce. — As will be explained in the next volume, there are divorces which will be set aside for fraud in their procurement ; yet, until thus vacated, they are good. Thereupon a marriage celebrated between the divorce sentence and the vaca- ting of it becomes voidable ; it is valid till the sentence is annulled, then void. This voidability is not canonical, but it is of a similar nature. The old books furnish an illustration of it ; thus, — § 282. Fraudulent Nullity for Impotence. — Says Gibson : " In like manner do the books of common law resolve, in case of a divorce a vinculo for impotency, after three years' trial and ex- amination, and sentence in the spiritual court for the perpetual impotency of generation. As it was in Bury's Case,^ who was so divorced, but afterwards married another wife, and had chil- dren b}' her ; upon which it was urged that, the Church being evidently deceived as to his perpetual impotency, the divorce thereupon was null ; and if so, that the second marriage was unlawful and the issue illegitimate. But the court resolved, that, since there had been a divorce for frigidity or impotence, it was clear that each of them might lawfully marry again ; and though it should be allowed that, the Church appearing to have been de- ceived in the foundation of their sentence, the second marriage was voidable, yet, till it should be dissolved, it remained a mar- riage, and the issue during the coverture lawful." ^ pains upon the disobedients and disturbers ' Gibs. Cod. 446 ; 2 Bum Ec. Law, thereof as in times past before the said Phillim. ed. 501 ; Morris v. Webber, 2 statute the king's ecclesiastical judge by Leon. 169. "If the parties should be the king's ecclesiastical laws ought and divorced," on the ground of impotence, might have done if the said statute had " and both should have children by the never been made ; any clause, article, or second marriage, these second marriages sentence in the said statute to the contrary must be by law set aside, and the first in any wise notwithstanding." The date marriage declared valid ; for when the of this enactment is 1548. Church appears to have been deceived, the 1 Post, c. 16. sentence must be revoked." Welde v. 2 Bury's Case, 5 Co. 98 6; Kenn's Case, "Welde, 2 Lee, 580, 586. But see the ob- 7 Co. 42 b. servatioDS of Sir John Nicholl, in Norton v. 118 CHAP. XIII.J VOID AND VOIDABLE. § 284 § 283. Marriage after " absent and not heard of." — A statute also — clearly a civil impediment — may so operate as to cause the marriage to be voidable, in distinction from void. Thus, in New York a provision ^ in substance that a second marriage, con- tracted in good faith when the former husband or wife has ab- sented himself or herself for the space of five successive years without being known to the other party to be living during that period, shall be voidable merely, and shall only be considered as void from the time when its nullity shall be decreed by a court of competent authority, — is construed to make a second mar- riage, entered into under the circumstances pointed out, valid in law until dissolved. A presumption of death is held to be the ground of reason on which this statute proceeds ; and, if a mar- rying person so far omits inquiry after the absent one as to mani- fest bad faith, he is not protected by it, though the five years have elapsed.^ When this person has acted in good faith, the absent husband or wife cannot, on returning, have the first mar- riage dissolved by reason of the cohabitation under the second, as for adultery, unless it is continued aftei- the second is made void by judicial sentence. And until it is thus avoided, the parties to it are justified in their cohabitation ; nor, till then, is cohabitation under the first marriage permissible.^ And after the death of one of them, the marriage is, for purposes of ad- ministration and succession, good.* But the reader perceives that the sentence annulling this second marriage differs ma- terially in effect from that annulling a marriage voidable for a canonical defect, — rendering it void only from the time it is so pronounced, while the sentence for a canonical defect makes it void from the beginning. In like manner, — § 284. Void on Condition — (Consent of Parents) . — The Irish statute of 9 Geo. 2, c. 11, provides, " that any marriage of a per- son under twenty-one years, without the consent of the father or guardians, shall be void ; but, if no suit be commenced within one year after the marriage, it shall be good." And this statute creates a peculiar kind of voidable marriage.^ Seton, 3 PhiUim. 147, 1 Eng. Ec. 384, 388, 3 VaUeau v. Vallean, 6 Paige, 207 ; where he says, " What a state to place the Cropsey v. McKinney, 30 Barb. 47. parties in ! This is something in the text- * White v. Lowe, 1 Redf . 376 ; Wyles law which I cannot readily assent to be- v. Gibbs, 1 Redf. 382. Yet see Spicer v. long to the law of this country." Spicer, 16 Abb. Pr. N. s. 112. 1 2 R. S. 139, § 6. See post, § 718. ^ Rex v. Jacobs, 1 Moody, 140; Rex v. 2 Gall V. Gall, 114 N Y. 109. Riordan, Car. Crim. Law, 3d ed. 255. 119 § 289 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 285. other Civil Impediments — (insanity — TV ant of age, &o.). — The remaining impediments are likewise civil ; " such as a prior marriage, want of age, idiocy, and the like ; " ^ and they are said to render the marriage void, not voidable.^ Still, — § 286. Distinctions as to which. — These impediments differ. While some of them make the marriage void as the word is used in other departments of the law,^ and by none of them is it void- able in the full canonical sense, others render it, not a nullity, therefore in one degree or another V9idable, as we employ lan- guage when speaking of ordinary contracts.* Yet it will save repetitions to postpone this matter till we consider the particular impediments, each in its order. VI. English and American Statutes. § 287. In England and in this Country — statutes have wrought considerable changes in the law. The result is, that in neither country can the practitioner proceed safely without, on the one hand, an accurate knowledge of the law as it existed prior to the statutes, and, on the other hand, a careful looking into and inter- preting of the statutes. A few hints as to which will be helpful. Thus, — § 288. Prohibited De^ees. — The English 5 & 6 Will. 4, c. 54, taking effect Aug. 31, 1835, forbade the institution of any new proceeding to annul a marriage, already solemnized, within the prohibited degrees of affinity (not including consanguinity) ; and provided that all subsequent marriages within the prohibited de- grees either of consanguinity or affinity should be void.^ Yet it did not prevent the punishment, by the spiritual courts, of per- sons who had previously contracted marriage within the forbidden affinity .8 And largely in our States,^ the statutes make void, not voidable, marriages within the degrees they prohibit. As to which, — § 289. Construction. — If it does not appear in the affirmative words of a statute whether the marriage it forbids is void or void- -"o"- 1 Sir John NichoU, in Elliott v. Gurr, 392; Reg. v. Chadwick, 12 Jur. 174, 11 2 Phillim. 16, 19, 1 Eng. Ec. 166, 168. Q- B. 173, 205 ; Brook v. Brook, 9 H. L. 2 Ante, § 267. Cas. 193. 3 Ante, § 253, 254. ^ Ray u. Sherwood, 1 Curt. Ec. 193, * Bishop Con. § 611, 617. 202. 6 Burgess v. Burgess, 1 Hag. Con, 384, ' Ante, § 275. 120 CHAP. SIII.] VOID AND VOIDABLE. § 291 able, we seek the legislative intent in the prior law. And we follow the rule that all laws, written and unwritten, at whatever dates established, are to be interpreted into one harmonious sys- tem of jurisprudence.^ The written law of void or voidable within the prohibited degrees is, in our States generally, what the Eng- lish unwritten law, modified by the written, was before the enact- ment of 5 & 6 Will. 4, c. 54. And we have seen that through the workings of a statute of Henry VIII. the marriage became voidable.^ Therefore, as every enactment is to be interpreted in harmony with the unwritten law, and as superseding it only to the extent required by its express terms or necessary operation,^ — it results that, unless the one defining the forbidden degrees declares the marriage it prohibits void, it is but voidable. Fur- ther to illustrate this method of interpretation, — § 290. Polygamous Marriage. — A statute which authorized a divorce " where either of the parties had a former husband or wife living at the time of solemnizing the second marriage," was held not to make the polygamous marriage voidable, contrary to the common law, but to leave it void, in accord therewith.* In like manner, — § 291. Want of Age. — A provision that males of seventeen 1 Bishop Written Laws, § 4, 82, 86-90. States, recognized by Kent himself (2 2 Ante, § 263-268, 270. In Wight- Kent Com. 95) ; and that, as we have man v. Wightman, 4 Johns. Ch. 343, seen, it rests entirely on this statute of 347, and 2 Kent Com. 83, Chancellor Henry VIII. At first, I was led by this Kent seems of opinion that the statute of suggestion of his to inquire whether the Henry VIII. (ante, § 263) is not common true doctrine is not that the statute was law in this country ; in consequence of never receiyed here ; and that, therefore, which, where we have no controlling stat- the canonical distinction of void and void- utory provisions, we fall back on the law able does not exist in this country. But of nature. This view, if reaUy he enter- the answer is, that for such a scepticism tained it, evidently arose, in some degree, there is no foundation in any judicial from his not considering what was the opinion, or even intimation from the common law of England previous to the bench ; and that it is opposed to some statute. If we do not adopt the statute, direct decisions, and to the entire current clearly we do not fall back on the law of of judicial thought in this country, relat- nature, but on the older common law, ing to the subject. Besides, the above wherein the prohibitions to marriage were statute faJls fuUy within that general extended much further than under the range of English statutes (Wilbur v. To- statute (ante, § 262). Therefore, as the bey, 16 Pick. 177, 182 ; Bishop First statute was remedial, plainly there is no Book, § 51, 52), which, it is well settled, room to doubt that our ancestors brought belong to the common law of our several with them the common law, not as it stood States. And see ante, § 270. anciently, but as modified thereby. But " Bishop Written Laws, § 7, 119, 155. what appears conclusive on this question ' Smith v. Smith, 5 Ohio St. 32. See is, that the distinction of void and void- also Harrison v. Harrison, 1 Philad. 389. able in marriage is well established in our 121 § 292 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III, and females of fourteen might be joined in marriage, if " not pro- hibited by the laws of God," was construed, in a case deemed thus prohibited, — namely, that of the marriage of a man with the daughter of his sister, — to render it voidable only ; so that it could not be set aside after the death of one of the parties.^ § 292. The Doctrine of this Chapter restated. The correlate terms, " void " and " voidable," and the shifting idea which they convey, familiar in the law of ordinary contracts, have, to an indefinite extent, a like position in the marriage law. But in the latter there is also a "voidable" peculiar to itself; the marriage being good for every purpose, and with respect to the rights and claims of all persons, unless and until, during the joint lives of both the married parties, it is declared null in a suit conducted by one of them to set it aside ; after which, it is treated as having never been of any validity. And not unfrequently in judicial opinions any marriage not thus voidable is termed " void," though, in fact, voidable according to the meanings in the ordi- nary law of contracts. This condition of our legal language and of the law is embarrassing both to a writer on the subject and to his readers. But an author who professes to write the English language must employ it substantially after its common mean- ings ; and, in the present instance, if he should undertake to make it more perspicuous, he must invent new words, which the true laws of authorship forbid. So that the reader must consult the connection in which either of these words stands, and con- sider the subject to which it is applied, if he would comprehend its precise meaning. Yet practically he will not often be in doubt ; the case being simply the common one in which a word of various meanings is made plain by its context, the reader not so much as being conscious that it has a signification other than that assigned to it by the writer. The other elucidations of the chapter do not require repetition. 1 Bonham v. Badglej, 2 Gilman, 622. 122 CHAP. XIV.J CONSENT OF THE PAETIES. § 295 CHAPTER XIV. THE CONSENT OP THE PAETIES. § 293, 294. Introduction. 295-299. Necessity and Nature in General. 300-311. To what, as constituting Marriage. 312-316. To Present Marriage, not Future. 317. Doctrine of Cliapter restated. § 293. Next two Chapters. — In the next chapter we shall trace the minuter lines of the doctrine of consent, with special yet not exclusive reference to those States wherein no added formalities are indispensable. And in the chapter next following we shall inquire into the necessity of such formalities, and look a little into their nature and methods. In the present chapter, — § 294. How Chapter divided. — We shall consider, I. The Neces- sity and Nature in General of the Consent ; II. To what the Con- sent must be given as constituting Marriage ; III. It must be to Present Marriage, not Future. I. The Necessity and Nature in General of the Consent. § 295. Marriage Voluntary. — The expositions of the preceding chapters have rendered plain the general proposition, that, though marriage is a public interest of the highest order, and the status of marriage is cast upon the parties by the law, yet the course of the law is to impose it only on those who seek it, not upon the iion-conseuting. And as matrimony can exist only in pairs, both the man and the woman must consent mutually to the same thing at the same time,^ — elements which in combination con- stitute a contract.^ Hence, — 1 1 Fras. Dom. Rel. 149, 184, 187, 212 ; Parer. 361 ; True v. Ranney, 1 Fost. N. 2 Burn Ec. Law, PhilUm. ed. 434; Ayl. H. 52, 53 Am. D. 164. 2 1 Bishop Con. § 76-79, 313. 123 § 300 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 296. Contract. — As explained in preceding chapters,^ the status of marriage is entered through the door of a contract, not essentially differing from other contracts.^ It is that circum- stance without which this status is never superinduced upon the parties. And, — § 297. Only. — By the law of nature,^ by the canon law prior to the Council of Trent,* perhaps by the law of England before the first marriage act was passed,^ by the law of Scotland,^ and by the laws of a part of our States, nothing need be added to this simple consent to constitute marriage. Even — § 298. statutory Formalities, — without which in some locali- ties there can be no valid marriage, do not render this mutual consent less indispensable. The forms are not a substitute for it. They are but modes of declaring and substantiating it, — matters of publicity, or evidence.^ If they are gone through with, without the added consent, the marriage is a nullity, both as to the par- ties and to third persons.** And still they may sometimes operate as a sort of estoppel to parties to deny their consent.® Now, — § 299. Doctrine defined. — The entire doctrine relating to this subject is, that, to render competent parties husband and wife, they must, and need only, mutually agree in the present tense to be such, — no time being contemplated to elapse before the assumption of the status. And if in the particular State a stat- ute or a usage having the force of law has declared any forms for the agreement indispensable, it must be made in compliance with those forms. Further to particularize, — II. To what the Consent must he given as constituting Marriage. § 300. Marriage or not. — If marriageable persons agree to live together in fornication, they do not thereby become husband and 1 Ante, § 10, 14, 37. ' Commonly called Lord Hardwicke's 2 Dalrymple v. Dalrymple, 2 Hag. Con. Act, 26 Geo. 2, c. 33, A. n. 1753. 54,4 Eng. Ec. 485, 508; Shelf. Mar. & ^ Dalrymple u. Dalrymple, supra; 1 Div. 6 ; Ferlat v. Gojon, Hopkins, 478, Fras. Dora. Eel. 124 ; Wright v. Wright, 493, 14 Am. D. 554. ,15 Scotch Sess. Cas. 767. 3 Lindo V. Belisario, 1 Hag. Con. 216, ' Shelf. Mar. &Div. 5, 6. 4 Eng. Ec. 367, 374 ; Dumaresly v. Fishly, « Mount Holly v. Andover, 11 Vt. 226, 3 A. K. Mar. 368 ; 2 Kent Com. 86. 34 Am. D. 685 ; Ferlat v. Gojon, Hopkins, * Dalrymple v. Dalrymple, 2 Hag. Con. 478, 14 Am. D. 554 ; Eespublica v. Hevice, 54, 4 Eng. Ec. 485 ; Eeg. v. Millis, 10 CI. & 3 Wheeler Crim. Cas. 505. E. 534 ; Hallett v. Collins, 10 How. TJ. S. » Dalrymple v. Dalrymple, 2 Hag. Con. 174 ; Fatten !>. Philadelphia, 1 La. An. 98 ; 54, 4 Eng. Ec. 485, 509. Succession of Prevost, 4 La. An. 347, 349. 124 CHAP. XIV.J CONSENT OP THE PARTIES. § 304 wife. But if, in terms however general, they mutually undertake to be husband and wife, the law defines their meaning, and makes them such. Between these two plain propositions there is a wide, uncertain ground. For if, rejecting the word " marriage," on tlie one hand, and " fornication " on the other, they enter into spe- cific stipulations, which mean neither exactly marriage as the law views it nor exactly fornication, — these being in law the only forms of sexual cohabitation, — the result will sometimes be indistinct. The rule as to which is believed to be that, — § 301. Doctrine defined. — If the agreement between the par- ties is to dwell together substantially in the law's relation of hus- band and wife, they will be adjudged such, and any collateral stipulation contrary to law will be held null ; but, if the agreed rights and duties lack the essentials of marriage, the relation will be adjudged meretricious. To illustrate, — § 302. Stipulating for Divorce. — It is plain in reason, and it is believed to be commonly conceded by legal persons, that, if parties enter into marriage under laws forbidding divorce, yet stipulate for the mutual right each to put away the other at pleas- ure, the marriage will be held good, and the collateral agreement a mere nullity, as contrary to the policy of the law.^ So, — § 303. Not live with "Wife. — If, before a marriage ceremony is performed, the man declares to the woman that he will not live with her after marriage, it is still good. This was held in a case where, in fact, he visited her afterward, and begat children,^ — a matter, probably, not material in law. But, — § 304. Temporarily " live as Man and Wife." — Quite in har- mony with this view, an agreement for a temporary living to- gether " as man and wife " has been deemed, and justly, not to constitute marriage. Whether the court, in the case wherein this doctrine is laid down, viewed the facts rightly, is less clear. After the death of the man, the woman brought her suit for a share in his estate. She alleged, that while she was keeping a restaurant the man " made proposals of marriage to her, which proposals she accepted ; and in accordance with his expressed wishes consented to relinquish her then business, sell out her property, and live with him as his true and lawful wife ; that, in obedience to this request on his part, she did abandon her busi- 1 See Barnett v. Kimmell, 35 Pa. 13 ; Harrod v. Harrod, 1 Kay & J. 4, 16. 2 Brooke v. Brooke, 60 Md. 524. 125 § 306 MAREIAGE CONSTITUTED, NULLITIES. [BOOK III. ness, and by his aid and assistance sell out and dispose of her said property, and give the proceeds thereof to him, and from thenceforth lived and cohabited with him as his wife, always con- ducting herself as a true, faithful, and affectionate wife should do." The court sustained to this a demurrer, observing : " From the character of the allegations, and the pregnant fact that the plaintiff does not even sue in her marital name, except under an alias, we are led to the inference that the arrangement between her and the deceased was intended to be temporary, and the con- nection one to which it would be a perversion of language to apply the name of marriage."^ Under the rule that all presumptions should lean to matrimony ,2 it would not be extravagant so to con- strue the agreement here as to cover the substance of marriage, justifying a tribunal in adjudging it such. § 305. Under Foreign Laws. — It is a rule of the law of na- tions, to be more precisely explained in a chapter further on,^ that a marriage good in the country of its celebration is valid in every other, unless polygamous or contrary to natural law.* Yet it is deemed, and doubtless justly, that the thing agreed to between the parties in the foreign country must be of a sort which our law can accept as marriage, though it is no objection that the foreign forms are contrary to ours.^ Thereupon, — §306. Indian Marriage — (Divorce at Pleasure). — If a mar- riage takes place upon territory occupied and ruled by our North American Indians, — for example, between a white man and an Indian woman, — then the parties remove into one of our States, it is by what appears to be the better doctrine good in the latter locality, notwithstanding by the Indian law they might divorce themselves by a mutual separation. To illustrate : in a Missouri case, the question was whether certain children, born in an Indian country of an Indian woman with whom the white father cohab- ited there, bringing them afterward into Missouri, where he recognized them as legitimate, yet leaving the mother behind, were legitimate in law ; and this depended on whether the father was the husband of the mother. The lower court in- structed the jury that, unless the agreement of the parents was 1 Letters v. Cady, 10 Cal. 533, 534, = Ante, § 77. 537. And see Jewell v. Jewell, I How. * Post, c. 29. U. S. 219 ; Howe's Estate, Myrick, Prob. * Ante, § 275, 276. 100. 5 In re Bethell, 38 Ch. D. 220. 126 CHAP. XIV.j CONSENT OP THE PARTIES. § 307 " to live their whole liyes together in a state of union as husband and wife, it was not a marriage, nor are the children of such union capable of inheriting from the father." But in the higher tribunal this instruction was held to be too restrictive ; it would operate to nullify all Indian marriages. Said Napton, J.: "In most of the tribes, perhaps in all, tlje understanding of the parties is, that the husband may dissolve the contract at his pleasure." Again : " It is plain that among the savage tribes on tliis conti- nent marriage is merely a natural contract, and that neither law, custom, nor religion has affixed to it any conditions or limitations or forms, other than what nature has itself prescribed." ^ And, universally, courts sitting in States and countries which deny divorce, accept, as valid, marriages entered into in jurisdictions where divorces are permitted ; nor do they inquire whether the divorce laws are strict or liberal. In accordance with all which, it was laid down in our neighboring Quebec, that an Indian mar- riage between a Christian man and a woman of the native tribe is valid, in spite of the assumed existence of divorce at will ; though the parties could not take the Indian divorce laws with them into the Christian court.^ On the other hand, — § 307. Contrary Intimations. — In a North Carolina case there is an intimation against the validity, in a Christian State, of a marriage of this sort.^ And we have the like from the Indiana Court. " Wliat," asked Perkins, J., in the latter, " constitutes the thing called a marriage ? What is it in the eye of the jus gentium ? It is the union of one man and one woman ' so long as they both shall live,' to the exclusion of all others, by an obligation which during that time the parties cannot of their own volition and act dissolve, but which can be dissolved only by au- thority of the State. Nothing short of this is marriage." * So, according to this, the distinction depends upon whether the forum for divorce is the domestic or the public one ; if the former, the marriage is void in the foreign court ; if the latter, valid. It would seem to be too thin for international law. Now, — 1 Johnson v. Johnson, 30 Mo. 72, 84, validity of these Indian marriages. U. S. 86, 88, 77 Am. D. 598 ; referring to "Wall Stat, of Aug. 9, 1888, c. 818. V. Williamson, 8 Ala. 48 ; Wall v. Williams, ^ Connolly v. Woolrich, 1 1 Lower 11 Ala. 826 ; Morgan v. McGhee, 5 Canada Jurist, 197. Humph. 13. And see Boyer v. Dively,58 ^ S. v. Ta-cha-na-tah, 64 N. C. 614. Mo. 510. Congress has recognized the * Roche v. Washington, 19 Ind. 53, 57, 81 Am. D. 376. 127 § 309 MARRIAGE CONSTITUTED, NULLITIES. [eOOK III. § 308. In Reason, — if we do not recognize these Indian unions as marriages, when thus entered into under the local laws which provide for no other, we treat our friendly and independent tribes, with whom we have treaties, and whom we regard as nations, with no very exalted Christian charity. They have advanced beyond the polygamy of the race whence Christ sprang, into monogamy ; though, it would appear from the foregoing, they retain the old Jewish law of divorce. In reason, then, might not a Christian tribunal forbear, at least out of consideration for the minority who may wish better laws, to deal with all as with our own strumpets and rakes ? Should a marriage be celebrated with us in the terms of the Indian law, the question of its validity would, in principle, be very different ; because, by universal rule, its validity depends on the law under which it is celebrated. § 309. Mormon Marriages — (Utah). — No One WOuld pretend that a Mormon's second marriage, entered into while the first was subsisting, could be valid in any monogamous countiy.^ And even a first marriage, celebrated in Utah, has been rejected in England. The question arose in a divorce suit, and it was held not to be, within the Divorce Act, a " marriage." ^ Said Lord Penzance : " I conceive that marriage, as understood in Christen- dom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others." In the present instance, all others were not, by the terms of the contract, to be excluded ; therefore it did not make the parties husband and wife, within the meaning of the English law.^ " A counsellor of the United States proved," says the Report, " that a marriage by Brigham Young, in 'Utah, if valid in Utah, would be recognized as valid by the Supreme Court of the United States, provided that the parties were both unmarried at the time when it was contracted, and that they were both capable of contracting marriage." It is scarcely necessary to add, that, whether this opinion is sound or not, it is mere opinion, and we have no adju- dications of our own on the subject. The proofs in this case were, also, that the law of Utah, equally with the opinions and practices of the Mormon Church, sustained polygamy. But however the law was then, it is not so now.* And no one 1 Ante, § 305. » Hyde v. Hyde, Law Eep. 1 P. & M. 2 Stat. 20 & 21 Vict. c. 85, § 27. 130, 133. 1 Ante, § 157. 128 CHAP. XIV.] CONSENT OF THE PARTIES. § 311 doubts th^t the marriages of non-Mormon people in Utah are good. Then why not those of marriageable Mormons? If, while going through the marriage ceremony, they mentally reserve the right to break the laws, by adultery or polygamy, still they prom- ise what throughout Christendom is marriage. And to hold a marriage void by reason of such a mental reservation would be a decision both inherently vicious and without precedent. Still, — § 310. First Polygamous Marriage. — The doctrine is sufficiently sustained in England, and, it would seem, justly, that a first for- eign marriage, entered into under laws establishing polygamy, by parties meaning it to be polygamous, is, equally with the second, void in the monogamous country. Yet as, according to views to be considered in another chapter,^ it is the right of parties to contract a Christian marriage wherever they are, if in a polyga- mous country they use their best endeavors to make the marriage monogamous, it will be accepted as valid in the monogamous country .2 And still, — § 311. Obscurities — Procreate and bring up Children. — In fu- ture cases, as in the past, it will sometimes remain difficult to say whether a particular departure from what the court deems the true agreement of marriage is sufficient to invalidate it or not.'' Lord Stowell has well observed that " a marriage is not every casual commerce ; nor would it be so even in the law of nature. A mere carnal commerce, without the intention of cohabitation, and bringing up of children, would not constitute marriage under any sup.position. But when two persons agree to have that com- merce for the procreation and bringing up of children, and for such lasting cohabitation, — that, in a state of nature, would be a marriage, and in the absence of all civil and religious institu- tions might safely be presumed to be, as it is popularly called, a marriage in the sight of God." ^ But a written instrument be- tween a man and a woman, by which they mutually promise to live together as husband and wife as long as they can agree, does not constitute marriage ; ^ at least, the question should be, whether the parties did take each other as, in substance, husband and wife, and did so live.^ ^ Post, c. 29. < Lindo v. Belisario, 1 Hag. Con. 216, 2 Harrey v. Farnie, 6 P. D. 35, 53 ; 4 Eng. Ec. 367, 374. In re Bethell, 38 Ch. D. 220. 5 Randall's Case, 5 City Hall Kec. 141, 8 For an instance, see S. v. "Walker, 36 152. And see ante, § 304. Kan. 297, 59 Am. E. 556. « Ante, § 301. VOL. I. — 9 129 § 315 MARRIAGE CONSTITUTED, NULLITIES. [BOOK m. III. The Consent must be to Present Marriage, not Future. § 312. Present Assumption of Status. — For the reason stated in a preceding section/ the consent essential to marriage must con- template a present assumption of the status, in distinction from a mere future union.^ When it is in words, — § 313. Distinguished. — The agreement of future marriage is termed espousals de futuro, or a contract per verba de futuro; that superinducing the status, espousals de prcesenti, or a contract per verba de prcesenti. Swinburne illustrates the former as oc- curring where the man says to the woman, " I will take thee to my wife," and she answers, " I will take thee to my husband ; " the latter, where he says to her, " I do take thee to my wife," and she replies, " I do take thee to my husband." ^ We shall in the next chapter see that when the parties after contracting future marriage have sexual intercourse, they are usually, by reason of the law's presumption of innocence, deemed prima facie to have changed their future into a present consent, making themselves thereby husband and wife. Hence it is said that marriage may be contracted per verba de prcesenti merely, or per verba de futuro cum copula.^ § 314. No more. — When this mutual consent in the present tense is, between competent parties, reached in any way comply- ing with such special forms as the law may have required,^ if any, they are married. Beyond which, — § 315. Consummation. — If copula follows, it adds nothing in law, though it may aid the proofs of marriage.® A maxim of the civil law, equally also of the ecclesiastical, of the common, and of all other law governing the subject, is. Consensus, non concubitus, faeit matrimonium.' The mere present consent already described constitutes marriage everywhere, except that by the laws of some countries there must be specified forms superadded, but subse- quent copula is not material.^ Yet, — 1 Ante, § 238. ^ Ante, § 299. 2 1 Fras. Dom. Rel. 149 ; Peck v. Peck, * Dumaresly v. Fishly, 3 A. K. Mar. 12 R. I. 485, 34 Am. R. 702. 368, 372 ; Dies v. Winne, 7 Wend. 47. ' Swinb. Spousals, 2d ed. 8 ; 2 Burn ' Dalrymple v. Dalrymple, 2 Hag. Con. Ec. Law, Phillim. ed. 455 e ,• Brown v. 54, 4 Eng. Ec. 485, 489 ; Sottomayer v. Brown, 13 Jur. 370. DeBarros, 5 P. D. 94, 98 ; Shelf. Mar. & * Lord Cottenham, in Stewart v. Men- Div. 5-7. zies, 2 Robinson Ap. 547, 591. " Lindo v. Belisario, 1 Hag. Con. 216, 130 CHAP. XIV.] CONSENT OP THE PARTIES. § 317 § 316. Qualifications. — Among our numerous and varying stat- utes there are, in a few of tlie States, some which the cautious practitioner should look into as possibly modifying this doctrine. And we shall see in a future chapter ^ that a court will be more readily moved to nullify a marriage on the ground of fraud, if there has been no copula, than if the ordinary consummation had followed ; and, in the next chapter,^ that there are circumstances in which a party will be estopped to deny matrimonial consent after copula when he would not have been before. § 317. The Doctrine of this Chapter restated. The law imposes marriage only on mutually consenting parties. And at each particular moment of the existence of persons, they must be either married or single; there is no intermediate con- dition. Hence, to constitute a marriage, the agreement must be in the present time, no moment to intervene between it and the superinducing of the status. The thing agreed to must be, in substance, what the law holds to be marriage ; but if the terms employed by the parties vary in non-essentials from the law's terms, or provide for something which the law forbids, their de- partures from true form, if the substance of marriage is stipu- lated for, will be rejected as null, because contrary to law. The mutual present consent, lawfully expressed, makes the marriage ; what is called consummation adds nothing to its legal effect. 4 Eng. Ec. 367, 374 ; Patrick v. Patrick, 3 Graham's Case, 2 Lewin, 97 ; S. v. Patter- Phillim. 496 ; Dies v. Winne, 7 Wend, 47 ; son, 2 Ire. 346, 38 Am. D. 699. Dumaresly v. Fishly, 3 A. K. Mar. 368; i Post, c. 17. Walton V. Rider, 1 Lee, 16, 5 Eng. Ec. ^ Pogt^ § 327^ 331, 334^ 335. 289; Potier v. Barclay, 15 Ala. 439; 131 § 320 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III, CHAPTER XV. CONSENT WITHOUT FORMAL SOLEMNIZATION. § 318, 319. Introduction. 320-326. By what Methods. 327-339. Formal but not in Fact. 340-352. Specially of Consent per Verba de Prcesenti. 353-377. Same per Verba de Futuro cum. Copula. 378-381. The Scotch Habit and Repute. 382. Effect of Consent Imperfect. 383. Doctrine of Chapter restated. §318. Authorities — Scotch. — On the subject of this chapter, the law in England has so long required prescribed formalities to attend marriage, leaving little room for doubt on the question of consent, and it is so much the course of things in those of our States not requiring formalities to pursue them, that our English and American authorities relating to this topic are not numerous. On the other hand, the Scotch doctrine is identical with ours, and Scotch expositions of it are abundant. Therefore this chapter will contain more than the ordinary proportion of references to the law of Scotland. § 319. How Chapter divided. — We shall consider, I. By what Methods the Consent may be given ; II. Consent given in Form, but not in Fact ; III. Specially of the Consent per Verba de Prcesenti; IV. Specially of the Consent per Verba de Futuro cum Copula ; V. The Scotch Consent by Habit and Repute ; VI. The Effect of the Consent being Imperfect. I. By what Methods the Consent may be given. § 320. Any Method — Aside from formalities which in some States and countries must attend the consent to make a marriage complete, as explained in the next chapter, there is no exclusive 132 CHAP. XV.] CONSENT WITHOUT SOLEMNIZATION. § 323 method. Not even words are in all circumstances necessary.^ Or it is sufficient that the parties, in language mutually under- stood, or in any way declaratory of intention, accept each other as husband and wife."'' Even, says Swinburne, if the words do not of their natural meaning " conclude matrimony," yet, if the parties intend it, and this appears, " they are inseparable man and wife, not only before God, but also before man." ^ Hence, — § 321. Oral or 'Written — (Cohabiting). — The expression of the consent may be either oral* or written.^ And if, except as is pointed out in the next chapter, the parties merely live together as husband and wife for many years, and there is no ceremony, they may be deemed in law to be married.® In Scotland, the chief litigation has been where the consent was in writing.'^ The simplest form of writing suffices.^ There may be, yet not in all possible circumstances, a — § 322. Marriage hy Letter : — Elsewhere. — The author has stated in another work how ordinary contracts by letter, and by other forms of offer and acceptance, are made.^ Now — §323. Circumstances — The Principle. — If, where the parties live, there are indispensable formalities of a sort not to be com- plied with by letter, plainly they cannot marry so. But the mutual present consent can in this way be given. Swinburne states the principle thus : It is necessary that the two " consents concur together at one and the same instant." i° But though " some good distance of time doth pass betwixt the promise of the one and of the other, nevertheless the party whose promise is past, not having changed his or her mind, but persevering still 1 Swinb. SpoHsals, 2d ed. 86, 203 et production illustratea the Gretna Green seq. ; Francis v. Francis, 31 Grat. 283. marriages : — 2 1 Fras. Dom. Rel. 145 ; Dickerson v. " Gritnay Green, June 10th, 1786. Brown, 49 Missis. 357 ; Eundle v. Pegram, " This is to sertfay to all persons, that 49 Missis. 751 ; Forster v. Forster, Law may be scurned, that Charles Blount, Eep. 2 H. L. Sc. 244. from Salisburey, and Elisbith Ann 8 Swinb. Spousals, 2d ed. 87 ; Dicker- Wyiche, from the same plese, both comes son V. Brown, supra. before me, and declares themselves to be * 1 Fras. Dom. Rel. 145. both single persons, and is now mareved s Mathewson v. Phoenix Iron Foundry, by the way of thee Church of Scotland, 20 Fed. Rep. 281. as day and det abuve mentioned by me. 8 Hicks V. Cochran, 4 Edw. Ch. 107. " David M'Faesoh. ' 1 Fras. Dora. Eel. 147. C. B. Blount. * lb. Grretna Green Marriage. — Elizth. Ann Wyche." The following (ib. p. 148) not very learned * Bishop Con. § 321-329. 10 Swinb. Spousals, 2d ed. 155. 133 § 326 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. in the same will until the other party have likewise promised, the contract is of equal force as if they had both consented to- gether, by speaking immediately one after another." ^ Still, — § 324. Conflicting Views. — Fraser presents some seemingly contrary Scotch opinions; deeming them, indeed, to express the better Scotch law, yet admitting that many among the canonist commentators hold it competent for parties to intermarry by letter, and even without seeing each other.^ It is needless to repeat his authorities, or to inquire whether his interpretation of them is correct. Some confessedly sustain this sort of mar- riage ; 3 and he tells us that in a number of cases marriages have been declared chiefly on letters.* Now, — § 325. ■With us. — By Swinburne, an accepted authority in our own law, it is broadly laid down that this relation may be entered into by letter.^ This, therefore, being likewise the doctrine of reason, is the true American law for those States in which formalities are not required to be added to the consent. § 326. In Different Countries. — Plainly, if the parties are in different countries, to make a marriage by letter good there must be no impediment to the particular union, or to the contracting of marriage by a mere mutual consent, by the laws of either country. For, as there can be no husband without a wife, or wife without a husband,^ if the man is in State A, where this sort of marriage would ordinarily be good, and the woman is in State B, where it would be a mere nullity, the courts of A cannot pro- nounce the man to be married, while those of B are compelled to hold the woman to be single ; because, though he has omitted no needful form, he has not, in fact, procured for himself a wife, the tribunals of one country not being competent to confer the mar- riage status on a person in another. Therefore, in a Scotch case of this sort, one of the parties having been in France, where in- formal marriages are not, as in Scotland, good, the court denied that letters could make them husband and wife. And the Lord President, too broadly as a question of principle, observed : " I can find no authority in support of the possibility of a marriage where one of the parties is in this country and the other is out 1 Swinb. Spousals, 2d ed. 87, 88. And * 1 Fras. Dom. Rel. 155, 158. see 154 et seq. ; Clark v. Field, 13 Vt. 460. ^ Swinb. Spousals, 2d ed. 162, 181-183. 2 1 Fraa. Dom.Rel. 155, 156. « Ante, § 247, 295. 2 As, for example, Inglis v. Robertson, 1 Eras. Dom. Rel. 157 a. d. 1786. 134 CHAP. XV.] CONSENT WITHOUT SOLEMNIZATION. § 328 of it " ^ This view does not militate against the general ability to marry by letter. II. Consent given in Form, but not in Fact. § 327. Two Principles — govern this sub-title ; first, that, what- ever parties say or do, they do not contract matrimony unless both, at the same instant, actually intend it ; ^ as, says Swinburne, where words of present consent " are uttered in jest or sport, for such wanton words are not at all obligatory in so serious a matter as matrimony." ^ Secondly, limiting this principle is another ; namely, that if one party employs words which properly import consent to present marriage, and the other, not incautiously deem- ing them to be serious, concurs in and acts upon the apparent present consent, the former is estopped to deny what the words import. The marriage is good.* To illustrate, — § 328. Another Purpose in Both. — In a Scotch case, after copula resulting in pregnancy, the man wrote to the woman : " I hereby acknowledge that you are my lawful wife ; and you may from this date use my name, though for particular reasons I wish our marriage kept private for some time." On a declarator of marriage, she relied on this letter, and on his judicial examina- tion. He denied, in the examination, matrimonial consent, and said the letter was given, on her importunity, simply to enable her to obtain admission to the house of a relative for lying-in purposes. The commissaries and the Court of Session held the parties married, but the House of Lords reversed the decision. The latter deemed that the letter, as explained by the examina- tion, appeared neither to have been given by him nor accepted by her, nor understood by either, " as a declaration of the truth, but merely as a color to serve another and a different purpose, which had been mutually concocted between them, the other circumstances of the case concurring to prove the same thing." ^ Again, — 1 Sassen v. Campbell, 3 Scotch Sess. Sess. Cas. 4th ser. 532, 533. Swinburne, Cas. new ed. 108 ; Campbell v. Sassen, 2 at the place just cited, deems that this Wils. & S. 309, 3X7. does notcreate a marriage " before God " ; 2 Ante, § 323 ; I Fras. Dom. Rel. 213. because " he which is the searcher of the And see ante, § 312-314 ; Clark v. Field, heart doth well know their deceit and de- 13 Vt. 460 ; Browne i/. Burns, 5 Scotch feet of mutual consent." But " man cau- Sess. Cas. 2d ser. 1288. not otherwise judge of men's meanings 3 Swinb. Spousals, 105; post, § 337, 338. than by their sayings." * lb. 84 ; Robertson i;. Steuart, 1 Scotch ^ Mclnues v. More, Ferg. Consist. Law, 135 § 330 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 329. Not meant to be final. — 111 another case, a girl received the addresses of a man not acceptable to her relatives, because of his bankruptcy and extravagance. He drew a writing which she copied and delivered to him, taking back another in corre- sponding terms, thus : " I hereby solemnly declare you, Patrick Taylor of Birkenshaw, my just and lawful husband, and remain your affectionate wife, Agnes Kello." According to her judicial declaration, she did not consider this a final agreement, and the man was not to use it without her consent. There was no evidence of eoncuhitus following or preceding. , The girl's mother, on discovering what had been done, requested him to surrender the writing, but he refused. During the next year he continued his visits at her house ; and, at length, proclamation of banns was consented to, and twice made ; but before the third time it was stopped by her or her relatives. During the succeed- ing two years their meetings became infrequent, and in the two years still following they ceased. At the end of which five years from tlie interchange of the writing, on the woman being about to marry another man, he instituted his action of declarator of marriage. The commissaries affirmed the marriage ; the Court of Session sustained them ; but the House of Lords reversed the decision, as in the last case, and for substantially the same rea- son. They held, " that the two letters insisted upon in this pro- cess, signed by the parties respectively, and mutually exchanged, were not intended by either, or understood by the other, as a final agreement ; nor was it intended or understood that they had thereby contracted the state of matrimony, or the relation of husband and wife, from the date thereof; on the contrary, it was expressly agreed that the same should be delivered up, if, the purpose they were calculated to serve proving unattainable, such delivery should be demanded ; which last-mentioned agreement is further proved by the whole and uniform subsequent conduct of both parties." ^ So, — § 330. Collateral Object meant. — Where the man, in a letter of attorney to the woman, acknowledged her to be his wife, — not with the intent in either to enter into marriage, but to help Kep. 33, 1 Pras. Dom. Eel. 213 ; a. c. in ^ Taylor v. Kello, 1 Fras. Dom. Bel. Dalrymple r. Dalrymple, 2 Hag. Con. 54, 214, 215 and note; reversed A. D. 1787. 101, 4 iSng. Ec. 485, 506. For similar Also- in Dalrymple v. Dalrymple, 2 Hag. facts and the same result, see Grant o. Con. 54, 94, 4 Eng. Ec. 485, 503. Mennons, Ferg. Consist. Law, App. 110. 136 CHAP. XV.] CONSENT WITHOUT SOLEMNIZATION. § 334 her carry out certain otlier objects, — the transaction was held not to constitute marriage.^ And it was the same where, in writ- ing, the man stated that the woman was his wife, to enable him, by deceiving others, to avoid marrying another woman.^ Even, — § 331. One Party not meaning Marriage — (Non-Consummation). — By the modern Scotch law, however the ancient may have been, and by just principle in our own law, if no copula has followed words distinctly importing matrimony, yet one only of the parties did not mean marriage, the deceived party has not so acted on the false representation of intent to his detriment ^ as to bring the case within the common-law doctrine of estoppel,* and there is no marriage. " The ruling principle as to the constitution of marriage," said the Lord Justice-Clerk, " is, that it is a mutual contract, — a consensual contract, — to the formation of which the consent of both parties must be really, deliberately, defini- tively, and irrevocably given. ... It would be, indeed, a most extraordinary practical view of the consensual contract of mar- riage to hold that in respect of the mere words of writings, not followed by any of the consequents of marriage, the parties were really and irrevocably married, although it should be proved, beyond the reach of cavil, that the consent of the lady to real marriage was not given by the words of the writing, and that she did not intend to consent to be married, and never so under- stood the paper she signed. That would be an extraordinary result." s And, — § 332. Evidence beyond Writing. — In another case, also of non-consummation, it was further laid down that the intent to marry must, under tliis class of facts, be shown by evidence be- yond the writing, however clear its words are in themselves.® But — § 333. After Public Solemnization. — In regular marriage, espe- cially when publicly solemnized under formalities prescribed by law, the rule may be different.^ And — § 334. After Consummation, — whether the marriage was for- mal or informal, the rule is undoubtedly different, as already in- 1 Campbell v. Sassen, 2 Wils. & S. 309. Cas. 2d ser. 582, 605, 606, And see 2 Stewart v. Menzies, 2 Robinson Ap. Campbell c. Sassen, 2 Wils. & S. 309, 547; 1 Fras. Dom. Eel. 215. 319. 8 Bishop Con. § 284. ' Lockyer v. Sinclair, supra. * Ante, § 327 ; post, § 334. ' Post, § 336. ' Lockyer v. Sinclair, 8 Scotch Sess. 137 §335 MARRIAGE CONSTITUTED, NULLITIES. [book III. timated.* For one who causes the other to participate in what marriage alone justifies, under the pretence, not incautiously be- lieved, that he means marriage, is in fundamental justice estopped to set up his own fraudulent intent, in place of the one he held out to the other, who has acted thereon by doing what is in the highest degree injurious if there is no marriage.^ But — § 335. Informal and no Consummation. — In a case of informal writings only, with no entering on what marriage alone justi- fies, no principle appears to exclude evidence of what the par- ties really meant.^ And simply this was done in the Scotch cases before mentioned.* 1 Ante, § 331. 2 lb. ; Robertson v. Steuart, 1 Scotch Sess. Cas. 4th ser. 532; Bell v. Graham, 13 Moore P. C. 242. ' Armstrong v. M'Ghee, Addison, 261 ; Jewell V. Jewell, 1 How. U. S. 219; 1 Greenl. Ev. § 284. * Some further Expositions. — In Stewart v. Menzies, 2 Eobinson Ap. 547, 592, Lord Cottenham observed : " The cases of Kennedy v. GampbeU, in 3 Wils. & S. 135, note ; Mclnness v. Moir, Ferg. Consist Law, App. 125, 128 ; Taylor v. Kello, Mor. Diet. 12687; Grant o. Men- nons, Ferg. Consist. Law, App. 110, and many other cases, prove, what indeed re- quired no .such proof, that to constitnte a contract of marriage there must be con- tracting parties, and that the expressions used, though of themselves suflBcient words of contract, are of no avail if not intended by the parties to have that effect, but are used for some collateral purpose. This in no respect infringes upon the principle of not construing a written contract by ex- trinsic evidence of intention, — the ques- tion being, not what the written contract imports, but whether it is to be treated as a contract at all." And Lord Stowell, in the Dalrymple case : " It is said that it [the matrimonial consent] must be seri- ous ; so surely must be all contracts ; they must not be the sport of an idle hour, mere matters of pleasantry and badinage, never intended by the parties to have any serious effect whatever ; at the same time, it is to be presumed that serious expres- sions, applied to contracts of so serious a nature as the disposal of a man or woman foi life, have a serious import. It is not 138 to be presumed, a priori, that a man is sporting with such dangerous playthings as marriage engagements. Again, it is said that the animus contrahentium must be regarded. Is that peculiar to the mar- riage contract ? It is in the intention of the parties that the substance of every species of contract subsists, and what is beyond or adverse to their intent does not belong to the contract. But then that intention is to be collected (primarily at least) from the words in which it is ex- pressed ; and, in some systems of law, as in our own, it is pretty exclusively so to be collected. You are not to travel out of the intention expressed by the words, to sub- stitute an intention totally different, and possibly inconsistent with the words. By the matrimonial law of Scotland, a lati- tude is allowed which to us (if we had any right to exercise a judgment of the institutions of other countries with which they are well satisfied) might appear somewhat hazardous, of substituting an- other serious intention than that which the words express, to be proved by evi- dence extrinsic, and totally, as we phrase it, dehors the instrument. This latitude is indulged in Scotland to a very great degree indeed, according to Mr. Erskine. In all other countries, a solemn marriage in facie Ecclesiae facit fidem, the parties are concluded to mean seriously and de- liberately and intentionally what they have avowed in the presence of God and man, under all the sanctions of religion and of law ; not so in Scotland, where all this may pass, as Mr. Erskine relates, and yet the parties are at liberty to show that by virtue of a private understanding he- CHAP. XV.] CONSENT WITHOUT SOLEMNIZATION. § 336 § 336. Formal, again. — The case of a public formal marriage, and no copula,^ would seem to present the greatest difficulties. tween themselves, all this is a mere impo- sition and mockery, without being entitled to any effect whatever. But be the law so, still it lies upon the party who im- peaches the intention expressed by the words to answer two demands, which the law, I conceive, must be presumed to make upon him : first, he must assign and prove some other intention; and, secondly, he must also prove that the in- tention so alleged by him was fully under- stood by the other party to the contract at the time it was entered into. For surely it cannot be represented as the law of any civilized country, that in sucli a transac- tion a man shall use serious words, ex- pressive of serious intentions, and shall yet be afterwards at liberty to aver a pri- vate intention, reserved in his own breast, to avoid a contract which was differently understood by the party with whom he contracted. I presume, therefore, that what is said by Mr. Cragie can have no such meaning, ' that, if there is reason to conclude from the expressions used that both or either of the parties did not under- stand that they were truly man and wife, it would enter into the question whether married or not ; ' because this would open a door to frauds, which the justice and humanity and policy of all law must be anxious to keep shut." Dalrymple v. Dalrymple, 2 Hag. Con. 54, 105, 4 Eng. Ec. 485, 508, 509. And see Cunninghams V. Cunninghams, 2 Dow, 482, 485 ; Lords Brougham and Campbell in Hamilton v. Hamilton, 9 CI. & F. 327, 348, 352 ; Swinb. Spousals, 84, 87. As the words of judges are to be interpreted by the facts to which they are spoken (ante, § 111), we should bear in mind that there had been copula in this Dalrymple case. In Lockyer v. Sinclair, 8 Scotch Sess. Cas. 2d ser. 582, there are expressions disapproving the concluding part of this extract from Lord Stowell. The words of Erskine, to which in the extract Lord Stowell probably re- fers, are : "As marriage in facie Ecclesice, by the law of Scotland, is neither a sacra- ment nor a necessary ceremony to consti- tute the matrimonial union, cases»might occur where a marriage by a clergyman might be insufficient, from Its being proved that, anterior to the celebration, the parties had interchanged written dec- larations that the ceremony was to be effected for a totally different purpose, and should not be binding upon either of them. But the respondent conceives, that to take off the effect of a written consent de prcesenti, or a promise of mar- riage followed by a copula, will require the most clear and decisive facts appli- cable to both the parties, suiEcient to show that the written declaration or promise was given for a purpose differ- ent from that of contracting marriage, and a proof of those facts by the most unexceptionable evidence." 2 Hag. Con. App. 26. Professor More, in his Notes on Stair, says, that " the most formal ac- knowledgment of marriage, even though made in facie Ecclesice, will be of no avail, if it shall appear that such was not the true intention of the parties." More's Notes, p. xiv. But Eraser shows that none of the cases cited by him support this proposition, as to marriage in facie Ecclesice; and that, though the question has been mooted, and opposite opinions have been expressed upon it by Scotch lawyers, it remains undecided in Scotland. 1 Eras. Dora. Rel. 217-221. As to infor- mal marriages, with and without copula, the doctrines and distinctions explained in the foregoing extracts, and in the text, are, the cautious reader perceives, in har- mony with those which pervade our com- mon law as applied to other things. And if Lord Stowell had not been speaking, in the above passages, to facts which dis- closed copula, we should deem his words inaccurate ; yet probably they are not greatly so when interpreted by the facts which were in controversy. Nor are these expositions to he regarded as not of our own common law because derived chiefly from Scotch authorities; for plainly the House of Lords, in such cases as Mclnnes V. More, and Taylor v. Kello, ante, § 328, 329, though proceeding upon Scotch law (Warrender v. Warrender, 2 CI. & E.488, 1 Ante, § 332. 139 § 338 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III, On the one hand it is said, that " there are other parties con- cerned in the marriage besides the parties themselves. It pro- duces a new status of the parties in society, the creation and nature of which \s juris puhlici. And if the requisites to create this status have once occurred, the relations consequent on it im- mediately take place, whatever latent purposes one or both of the parties have entertained."^ On the other hand it is urged, and on this reasoning some of the Scotch decisions proceed, that, ad- mitting the evils of the parties' impostui'e, the proper remedy is not to repay imposture by fiction, and to enforce a consensual contract upon persons not in fact consenting ; that the imposture, though profligate and pernicious, is of the same description with many others for which the law has no remedy ; as, where a man imposes his bastard on society as his lawful child.^ And certainly it would be a marked exception to the general rules, to compel persons to assume the status of marriage, and the civil duties of husband and wife, against their will, as a punishment either for trifling with the forms of matrimony, or for any other evil conduct.^ Yet tliere must be a point beyond which frivolity cannot go. Within the reasoning governing this sort of question are — § 337. Mock Marriages. — Plainly, if the parties, the spectators, and the officiating person all understand a marriage ceremony to be a farce, performed for amusement and not to create matri- mony, it is without effect. The case would be within a doctrine already quoted from Swinburne,'' and not adverse to any decision or dictum accepted by anybody as sound. The difficulties arise where the marriage is formal, and only a part of these elements concur. Thus, — § 338. Marriage Ceremony in Jest. — A well-considered New Jer- sey case lays down the doctrine, that intention is an essential in- gredient in the contract of present marriage, the same as in every other contract. So that a marriage ceremony in jest does not make the parties husband and wife, even where conducted by the proper official person, and he is in doubt whether the par- 561, 557), could not have supposed them- i Lord Meadowbank, Ferg. Consist, selves to be overruling the decisions of Law, App. 124. the highest tribunal of Scotland by the ^ j Pras. Dom. Eel. 220. introduction of a principle foreign to the ' Clark v. Field, 13 Vt. 460. And see law of England. Peat's Case, 2 Lewin, 288. « Ante, § 327. 140 CHAP. XV.] CONSENT WITHOUT SOLEMNIZATION. § 339 ties are in earnest or not. Said Chancellor Green : " Mere words, without any intention corresponding to them, will not make a mai-riage or any other civil contract. But the words are the evidence of such intention ; and if once exchanged, it must be clearly shown that both parties intended and understood that they were not to have effect. In this case, the evidence is clear that no marriage was intended by either party ; that it was a mere jest got up in the exuberance of spirits to amuse the company and themselves. If this is so, there was no mar- riage." ^ § 339. Intent to make Betrothal binding. — The following are the facts of a case once adjudged by the Vice-Chancellor of New York : A man twenty-three years of age paid his addresses to a girl of sixteen, and the two became mutually attached. Her par- ents, to withdraw her from his attentions, were about removing her away, when he, fearing he should lose her, induced her to go with him to a clergyman's house and be married ; which was done, with the concurrent understanding that the ceremony should not be binding as marriage, but only as strengthening their mu- tual promise to marry in the future. On their way to the clergy- man's house, he asserted that it should be mere form ; that they were not to be husband and wife for two years ; nor then, until the parents' consent was obtained, and the ceremony performed anew. There was no consummation, and a day or two afterward the gii'l told her parents of her imprudence. Opposition arose on their part ; then she lost her affection for him ; and he claimed that this was a valid marriage. Suit was brought on her behalf to have it declared^ null, and a decree was entered accordingly .^ This case has some of the elements of fraud. Still it is appar- ently immaterial whether he intended when the ceremony was performed to rely on it afterward as a marriage, or whether this intent was an after-thought. The decision accords with the Scotch doctrine as to consent in form, given to accomplish a collateral purpose.^ 1 McClurg u. Terry, 6 C. E. Green, see Mount Holly u. Andover, 11 Vt. 226, 225, 227. 34 Am. D. 685 ; Clark v. Tield, 13 Vt. 2 Robertson v. Cowdry, 2 West. Law 460; Barnes v. Wyethe, 28 Vt. 41. Jour. 191, 1 S. W. Law Jour. 167. And » Ante, § 328, 330. 141 344 MAERIAGE CONSTITUTED, NULLITIES. [BOOK III. III. Specially of the Consent per Verba de Prcesenti. § 340. In the Last Chapter, — the present being only supple- mental to it, the doctrine now in contemplation is defined.^ § 341. One Consent in Three Forms. — The books speak of three forms of consent, — per verba de prcesenti, per verba de futuro cum copula ; and, in Scotland, consent by habit and repute. But these three forms signify only three different channels of proof ; for the only consent which will create matrimony is the mutual one to present marriage, — not necessarily per verba^ but always and indispensably de prcesenti." Thus, — § 342. Consent and Proofs distinguished. — There is a distinc- tion between the consent itself and the surrounding indications, or proofs, of it.* To illustrate, — § 343. Lack of Mutuality supplied by Presumption. — While a man was cohabiting with a woman who had borne him children, he, with her knowledge, wrote and committed to his agent, under an injunction of secrecy, a letter declaring her to be his wife. Afterward, on his death-bed, he spoke to her of this letter. And it was held that his agent might be regarded as her agent also ; and under all the circumstances, the cohabitation continuing for years after the letter was written, a mutual consent would be inferred.^ Her joining with him in the marriage promise, though not expressly shown, was presumed from the circumstances.^ But — § 344. Room, or not, for Presumption. — Where all the facts are covered by the direct proofs, and there is no room to presume others, they will be held to constitute marriage only when they disclose a concurring consent to it, by the two minds at the same instant, as already explained.^ This is illustrated in the follow- ing case, whether we accept its conclusion as sound or not. In the words of Tilghman, C. J. : " The defendant pleaded that he was married to the plaintiff, on which issue was joined, and it 1 Ante, § 299. Cas. 736, 9 CI. & F. 327; 1 Fras. Worn. 2 Ante, § 320. Kel. 150. Compare with Surtees o. 8 Ante, § 312, 313; Bowman w. Bow- Wotherspoon, 11 Scotch Sess. Cas. 3d man, 24 lU. Ap. 165 ; S. v. Walker, 36 ser. 384. Kan. 297, 59 Am. R. 556. « See Hutton u. ManseU, Holt, 458; * See Campbell v. Honyman, 5 Wils. Forster v. Forster, Law Rep. 2 H. L. Sc. & S. 92. 244. ' Hamilton t>. Hamilton, 1 Bell Ap. ' Ante, § 299, 320, 341. 142 CHAP. XV.] CONSENT WITHOUT SOLEMNIZATION. § 344 was objected that the judge ought to have directed the jury that the evidence proved the marriage. The judge laid down the law correctly. He told the jury that marriage was a civil contract, which might be completed by any words in the present time, without regard to form. He told them also that in his opinion the words proved did not constitute a marriage ; and in this I agree with him. The plaintiff and defendant came to their lawyer, Mr. Watts, on business, without any intention of marry- ing. They had long lived in an adulterous intercourse, although they considered themselves as lawfully married. In fact, they had entered into a marriage contract, which was void because the defendant had a former wife living, from whom he had been separated by consent, but not legally. Some time before the parties came to Mr. Watts a legal divorce had been pronounced, and Mr. Watts advised them to celebrate a new marriage. The defendant said : ' I take you [the plaintiff] for my wife ; ' and the plaintiff, being told that if she would say the same .thing the marriage would be complete, answered : ' To be sure he is my husband, good enough.' Now these words of the woman do not constitute a present contract, but allude to the past contract, which she always asserted to be a lawful marriage. Mr. Watts advised them to repeat the marriage in a solemn manner before a clergyman, which was never done. So that under all the cir- cumstances it appears to me that what was done was too slight and too equivocal to establish a marriage." ^ If we assume, with the court, that what was done in the presence of Mr. Watts did not alone constitute marriage, still we may doubt whether the combined facts would not have amply justified the jury in finding that, at some time, the two wills did, when there was no impedi- ment, concur in present matrimony, — this being the only fact essential to rendering the parties husband and wife. When per- sons capable of intermarrying cohabit in the way of marriage, all the presumptions are that in fact they are married.^ Nor yet would it be a forced construction to consider the words of the woman, in the presence of Mr. Watts, an affirmative response to those of the man. Moreover, — ^ Hantz V. Sealy, 6 Binn. 405. then to be, not to be considered his wife ; ^ Ante, § 77. It is fair to say, on the disaffirming thereby the marriage as far other hand, of the case under criticism, as she was able. As to which, also, see that the woman in bringing her suit Estate of Beverson, 47 Cal. 621. against the man showed her own intent 143 § 347 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 345. Impediment to Desired Marriage removed. — Where par- ties are living together, wishing and believing themselves to be husband and wife, if an impediment to-day prevents the legal status from being superinduced thereby, and to-morrow it is removed, there is reason to hold that the status uprises as the impediment sinks.^ This observation applies only to a case where marriage may be constituted by consent alone, and where in fact the parties both desire marriage, and are cohabiting after the impediment has ceased. § 346. Something bet-ween Consent and Marriage. — The con- sent, to constitute marriage, must not be attended by an agree- ment that some intervening thing shall be done before it takes effect ; as, that it be publicly solemnized.^ Now, — § 347. Nature of Thing intervening. — The rule is, that, as mar- riage cannot be in abeyance,^ if the thing stipulated for is meant by the parties to delay the nuptials, however briefly, there is no marriage ;• otherwise, if it has any other purpose, such as to sat- isfy scruples, or for good order. To illustrate : in Scotland, a woman who had been delivered of a bastard child went to the putative father and threatened to destroy herself if he did not give her a line acknowledging her to be his wife. He gave her the following : " My dear, as a full testimony of my regard and affection for you, I hereby agree and bind myself to be your real husband in all senses of the word, and expects only the common ceremony of the outward rule of marriage, and ... I do hereby bind and oblige myself to accept of you as my lawful wife, and is ready and willing to accept of the common rite here put in execu- tion in a public manner ; or, if that cannot be conveniently done, suiting to all parties, 1 am agreeable to accept to any measure you think proper yourself, so as we may be united together in marriage. To this I sign my name as your real husband." His judicial examination disclosed that he understood himself bound by this declaration, and not at liberty to marry another ; and he had no doubt the woman receiving it considered herself bound in like manner. Connecting this admission with the writing itself. 1 See post, book 4; S. ii. Worthingham, ib. p. 748, 783, 797 ; Grotgen v. Grotgen, 23 Minn. 528 ; De Thoren v. Attorney- S Bradf. 373. And see Stewart v. Menzies, General, 1 Ap. Cas. 686. 2 Robinson Ap. 547, 591 ;• Clark v. Field, 2 Lord Brougham, in Eeg. v. Millis, 13 Vt. 460. 10 CI. & F. 534, 708, 730 ; Lord Campbell, '^ Ante, § 238. 144 CHAP. XV.] CONSENT WITHOUT SOLEMNIZATION. § 349 the court pronounced for the ' marriage.^ A man introduced a woman to respectable people as his wife ; besides which, he wrote and subscribed the following, which he gave her : " I Her by aknolidg and own that I am maryed to Elspeth Curriaa, as soon as I got all things put to rights, or my affairs are that I am not to see you in no ways distress, until that I proved [provide] for you, which I hop will not be long. This is all from your's, David Turnbull." Thereupon the majority of a divided court were of opinion, that a clear acknowledgment de prcesenti was contained in the opening words of the writing, and that the sequel, though somewhat confused, was a statement of his reasons for delaying to take her home as his wife, and a promise to provide for her in the mean time. The case, however, contained also other evidence sufficient to establish the marriage ; namely, oral acknowledg- ments followed by copula.^ On the other hand, — § 348. Intervening License. — In one of our own courts, a wo- man offered as a witness against a man on trial for murder stated, that the two agreed to intermarry, that he told her he could not then get a license because " all the old licenses had run out," but " as soon as the new licenses came in " he would get one and marry her, and thereupon they cohabited. The court held that she was not his wife. The agreement referred to the future. It was to marry at a subsequent time, after a future event, — the procurement of a license. The copula, by the terms of the bargain, preceded the contemplated marriage, so that it did not aid the proofs.^ § 349. Successive Declarations. — A mutual present promise, constituting marriage, is not superseded or nullified by another one to the same effect ; if it were, the parties might divorce them- selves.* In one. case, there were three several declarations on different days. The first was, " We swear we will marry one another." The second, " I take you for my wife, and swear never to marry any other woman." And the third was a repetition of the second. It was contended against this marriage that, in the second declaration, the parties showed it to be their intent not to depend on the first, of which it was in effect a disclaimer. But 1 Edmeston v. Cochrane, 1 Fras. Dom. ' Robertson v. S. 42 Ala. 509. See Eel. 153. post, § 364. 2 Currie v. TnrnbuU, Hume, 373, 1 * Hoggan v. Cragie, Macl. & E. 942, Fras. Dom. Eel. 154. 974. VOL.1. — 10 145 § 352 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. the Court of Delegates overruled the objection, and the Chancellor refused a commission of review.^ So, also, — § 350. Dalrymple. — In the Dalrymple case, the marriage was treated as per verba de prcesenti ; for though copula followed mutual promises, the latter were deemed sufficient alone. There were three several writings, made on different occasions. The first was, " I do hereby promise to marry you as soon as it is in my power, and never marry another," signed by the man ; the woman adding, over her signature, " and I promise the same." This paper was indorsed, " a sacred promise." The second was, " I hereby declare that Johanna Gordon is my lawful wife," signed by him ; " and I hereby acknowledge John Dalrymple as my lawful husband," signed by her. The third was, " I hereby declare Johanna Gordon to be my lawful wife, and as such I shall acknowledge her the moment I have it in my power. J. W. Dal- rymple. I hereby promise that nothing but the greatest necessity (necessity which situation alone can justify) shall ever force me to declare this marriage. J. Gordon (now) J. Dal- rymple. Witness, Charlotte Gordon." The last two papers were enclosed in an envelope superscribed, " Sacred promises and en- gagements." All were produced by Miss Gordon, in whose pos- session they had remained. And upon them the marriage was established.^ Again, — § 351. Agreement for Secrecy. — An agreement to' keep the marriage secret will not invalidate it, or necessarily involve in doubt the proofs of its existence. Such an agreement, observed Lord Stowell, sometimes attends the most regular marriages " from prudential reasons ; from the same motive, it almost al- ways does private or clandestine marriages. It is only an evi- dence against the existence of a marriage when no- such prudential reasons can be assigned for it, and when everything, arising from the very nature of marriage, calls for its publication." ^ § 352. Adequate — " We are married." — After an engagement, the man told the woman he did not believe in formal marriage, '' Fitzmaurice v. Fitzmaurice, cited in Con. App. 144 ; Piers v. Piers, 2 H. L- Walton u. Eider, 1 Lee, 16, 28, 5 Eng. Caa. 331. Ec. 289, 295 ; also in Dalrymple i>. Dal- ^ Dalrymple v. Dalrymple, 2 Hag. Con. rymple, 2 Hag. Con. 54, 69, 4 Eng. Ec. 54, 76, 4 Eng. Ec. 485, 495; Swift v. 485, 492. Kelly, 3 Knapp, 257; Hamilton v. Ham- 2 Dalrymple v. Dalrymple, 2 Hag. ilton, 9 CI. & F. 327; Ayl. Parer. 364; Con. 54, 4 Eng. Ec. 485. See also 2 Hag. Sharon v. Sharon, 75 Cal. 1. 146 CHAP. XT.] CONSENT WITHOUT SOLEMNIZATION. § 355 and asked her to waive the ceremony, saying the marriage would be equally valid without it. She consented, and fixed the day for the nuptials. While on that day they were riding together in a carriage, he put a ring on her finger, saying : " This is your wed- ding ring ; we are married." She received it as a wedding ring. He then said : " We are married. I will live with you, and take care of you, all the days of my life, as my wife." She assented to this, and they went to a house where he had previously engaged board for " himself and wife," and there they lived together as husband and wife for about five weeks ; he treating her as his wife, and addressing and speaking of her as such. This was held, in New York, on a suit for divorce, to constitute a valid marriage.^ IV. Specially of the Consent per Verba de Futuro cum Copula. § 353. Evidence. — Accurately viewed, the doctrine of this sub- title is a rule of evidence,- not of law.^ But the manner of the books is to treat it in connection with the law, and it would be a practical inconvenience to do otherwise in these volumes. § 354. Doctrine defined. — The doctrine is, that, if parties who are under an agreement of future marriage have copula, being what is lawful in marriage alone, they are presumed, in the ab- sence of any showing to the contrary, to have arrived at the period of actual marriage, or to have transmuted their future to present promise ; because the law accepts the good rather than the evil construction of equivocal acts. Hence, in a form of ex- pression common in the books, one of the methods of contracting marriage is said to be per verba de futuro cum copula.^ § 355. Further Explained. — This is not a doctrine simply of the marriage law, it is universal in our jurisprudence. The ' Bissell u. Bissell, 55 Barb. 325, 7 547, 591 ; Lord Stowell, in Dalrymple v. Abb. Pr. N. s. 16. And see Van Tuyl v. Dalrymple, 2 Hag. Con. 54, 66, 67, 4 Eng. Van Tuyl, 57 Barb. 235, 8 Abb. Pr. N. s. Ec. 490, 491 ; Fergusson in Ferg. Consist. 5; Titcomb's Estate, Myrick Prob. 55. Law, Kep. 149; 1 Eras. Dom. Rel. 188; 2 Ante, § 341 ; Peck v. Peck, 12 R. I. Lord Campbell, in Reg. v. Millis, 10 CI. 485, 34 Am. B. 702. And see Dumaresly & F. 534, 780; Dumaresly v. Fishly, 3 A. V. Fishly, 3 A. K. Mar. 368 ; Ferg. Consist. K. Mar. 368, 372 ; Patten v. Philadelphia, Law, Rep. 118, 129, 130; Pennycook v. 1 La. An. 98, 101; Askew v. Dupree, 30 Grinton, ib. 95. Ga. 173; Peck v. Peck, 12 R. I 485, 34 ' ' Reid V. Laing, 1 Shaw Ap. Cas. 440 ; Am. R. 702 ; McCausland's Estate, 52 Stewart v. Menzies, 2 Robinson Ap. Cal. 568. 147 § 356 MARRIAGE CONSTITUTED, NULUTIES. [BOOK III. common course of human conduct being lawful and not unlawful, whenever there is evidence of an act which may be either the one or the other, and there is no proof as to which it was in the par- ticular instance, the law prefers the interpretation which makes it innocent.^ And, specially as to marriage, if this was not a rule of the law, still it would be one of natural reason. We can scarcely imagine parties, virtuous as to each other up to the time of their marriage engagement, — even parties each of whom is of loose sexual morals generally, — either one of whom would consciously take from the other the virtue which even strumpets and rakes require of those whom they will consent to marry. It would be far more reasonable to infer from such conduct that they looked upon each other as in morals and good conscience married ; so that neither would be shocked by the conduct of the other. This, in a State requiring no forms, would make them married in law. Nor would it be otherwise though one only meant marriage, wliile the other meant deception and fraud.^ Nor yet would it be different though one or both still looked forward, the same as before, to a future solemnization in form.* Then, if at the time of the carnal act they meant what in law is marriage, whether they knew that tlie law held it to be such or not,* they could not afterward divorce themselves by denying their original intention.^ Hence, — § 356. Solicitations only. — No mere solicitations of chastity, 1 1 Greenl. Ev. § 34, 35 ; 1 Bishop in its sight, yet both parties desiring legal Crim. Proced. 3d ed. § 1103-1106, 1130, marriage and not concubinage, she is as 1131; O'Neal B. Boone, 82 111. 589. effectually married as though she truly 2 Ante, § 327, 334. apprehended the legal rule. Or, if her un- 3 Ante, § 347 ; post, § 364. derstanding of the legal situation should * Mistaking the Law. — The rights be deemed important, she would be within and liabilities of parties, whether in re- the protection of the rule that the law is spect of marriage or of anything else, are conclusively presumed to be known by all derived from the law, and not from their persons. Yet, by reason of the fact of her knowledge or Ignorance of law. Many a ignorance of the law, she would afterward woman has supposed herseK to be married deny or forbear to claim that she was mar- when she was not, and many a one has ried. There can be no doubt of the cor- thought herself to be single when she was rectness of this doctrine ; still the books married. Applying this proposition to the' contain cases, in the consideration whereof present question, if, in a locality where in- it would have been helpful, wherein it formal marriages are valid, an engaged seems to have escaped the thought of woman yields herself to her betrothed in counsel and judges, the way of marriage, — " marriage in the ^ Yelverton v. Longworth, 2 Scotch sight of God," as the expression sometimes Sess. Cas. 3d ser. H. L. 49, 4 Macq. Ap- is, — while supposing the law to require a Cas. 745; Morrison v. Dobson, 8 Scotch formal solemnization to make her a wife Sess. Cas. 3d ser. 347, 355. 148 CHAP. XV.J CONSENT WITHOUT SOLEMNIZATION. § 358 or attempts at copula, or other familiarities sHort of the carnal act, will convert espousals de futuro into present matrimony.-' § 357. Conclusive or not. — In our law of evidence generally, we meet with many doubts as to whether a particular presumption is conclusive, or whether it is simply to be submitted to the jury, with proper instructions, for them to draw from it the inference they deem just.^ On this question of marriage by agreement to marry and subsequent copula, this sort of doubt more or less prevails. Probably, on a just view, the rule varies with the sort of case. If the fact appeared, beyond dispute, that both parties meant fornication, there would be no room for presumption,^ and in point of law there would be no marriage. On the other hand, if, in fact, the two deemed themselves to be acting in fulfilment of their marriage promise, they would thereby become, in matter of law, married. Here, also, there would be no presumption.* Or if, after a marriage engagement, the woman should yield to the man on her faith in his express assurance that it would be a consummation of their marriage, no considerate court would permit him to set up, in defence to her claim of marriage, that what he meant was, not marriage, but seduction. All would hold them to be, as of law, married.^ Passing by these cases of unquestioned fact, which, therefore, exclude presumption, — § 358. The True View — is believed to be, that the copula after promise establishes marriage prima facie,^ yet no further ; that this prima facie case may be rebutted by evidence, for which purpose circumstantial evidence is as good as any other ; that thus a question of fact is raised, to be decided on presumption and testimony combined, and this question is, under instructions from the court, for the jury. All the circumstances of the case may be looked into, including the conduct of the parties both before and after the relied-on copula. And if they did not re- gard themselves after it as married, the marriage presumption is weakened.'^ 1 Swinb. Spousals, 27, 28, 40, 228. 626 ; Guardians of the Poor v. Nathans, 2 2 1 Bishop Crim. Proced. 3d ed. Brews. 149. § 1098-1100. ^ Ante, § 354, 355. 8 Ante, § 344. ' Maloy v. Macadam, 12 Scotch Sess. * Stoltz V. l^oering, 112 111. 234, 240. Cas. 4th series, 431 ; Beverson's Estate, 5 Ante, § 355 ; Barnett v. Kimmell, 35 Myrick Prob. 35 ; Stoltz v. Doering, 112 Pa. 13 ; Johnson u. Johnson, 1 Coldw. 111. 234 ; Hebblethwaite v. Hepworth, 98 111. 126 ; post, § 375. 149 § 361 MAEEIAGE CONSTITUTED, NULLITIES. [BOOK III. § 359. Further Uxpositions of the Subject : — The Foregoing Sections — of this sub-title present the doctrine in its complete and rounded form ; but as the question is impor- tant, and as the doctrine has not been truly apprehended in all our American cases, some further unfoldings are desirable. Thus, — § 360. Counter Agreement — (Marriage not meant). — Accord- ing as well to the earlier as to the later books, if the parties while having the copula mutually agree not to transmute thereby the promise of future marriage into matrimony, it will not work this result.! Yet, going further back to the time of Ayliffe and Swinburne, we find both of these ancient writers laying it down that, should the parties before copula protest that they would not thereby convert their espousals defuturo into matrimony, " yet this protestation is overthrown by the fact following ; for by lying together they are presumed to have swerved from their former unhonest protestation," and so a marriage is, in spite of it, cre- ated.2 Whether the judicial doctrine was ever so we need not inquire. The true modern view was at a less remote period expressed by Lord Campbell, thus : " If the woman in surrender- ing her person is conscious that she is committing an act of fornication, instead of consummating her marriage, the copula cannot be connected with any previous promise that has been made, and marriage is not thereby constituted,"^ — leaving, as before explained,* the intent a subject of inquiry, and the pre- sumption of law, which favors innocence, and therefoi'e deems the act prima facie to be marriage, open to be rebutted by evi- dence in each particular case. Even, — § 361. Presumption rebutted by Presumption. — The presump- tion of present consent may, it appears, be overcome by a counter presumption.^ Thus, in a not very distinctly reported Scotch case, a countess, having been courted by her footman, who pro- posed marriage, and perhaps but not certainly having consented, yielded to his embraces. Thereupon the court and counsel agreed that marriage should not be inferred ; the disparity of rank and circumstances rendering probable her allegation that she had 1 2 Hag. Con. App. 41, 77; 1 Fras. " Reg. v. MilHs, 10 CI. & P. 534, 782; Pom. Eel. 216 ; More's Notes to Stair, 13. Peck v. Peck, 12 R. I. 48.5, 34 Am. E. 702. 2 Swinb. Spousals, 224 ; Ayl. Parer. '' Ante, § 357, 358. 250. 6 See ante, § 358. 150 CHAP. XV.] CONSENT WITHOUT SOLEMNIZATION. § 364, chosen to indulge a licentious passion, rather than degrade her- self from her high station by espousing her naenial servant.^ On a like principle, where no promise is proved, a marriage be- tween a free white woman and her negro slave will not be in- ferred from cohabitation.^ § 362. Promise after Copula — Before, but discharged. — Where a promise to marry follows copula, and no copula follows the promise, a marriage is not constituted. And it is the same, it seems, where the promise has been discharged before the copula takes place,® — which is also the rule of the canon law. Yet, in Hoggan V. Cragie, Lord Brougham intimated, as the sounder view, that the copula would both revive the promise and give it the character of a present consent.* § 363. Copula both before and after Promise. — Though the par- ties were living in fornication before the promise of future mar- riage, still the general rule ordinarily prevails, and marriage is constituted by their subsequent intercourse.* The presumption is that the woman had reformed, and refused to continue the connection unless put on an honorable footing.^ Yet this is not very clear in reason, at least the facts of cases may disclose ex- ceptions to this rule.^ § 364. Formal Solemnization to intervene. — As in consent per verba de prcesenti,^ so in per verba de futuro cum copula, if some- 1 Forbes v. Strathmore, Ferg. Consist. » Swinb. Spousals, 2d ed. 226. • Law, Eep. 115. The pursuer, however, * 1 Fras. Dom. Eel. 197; Hoggan u. proceeded to prove a marriage by habit Cragie, Macl. & R. 942, 974 ; Lord Camp- and repute, and the lady abandoned the bell, in Reg. v. Millis, 10 CI. & F. 534, defence. Ferguson says : " Other cases, 782. Ayliffe holds that a marriage is not both of earlier and of later date, wiU like- constituted in such a case. Ayl. Parer. wise be found to support the opinion that 250. the inference from the facts of an estab- ^ gjjn y. Miles, 8 Scotch Sess. Cas. 89, lished promise subsequente copula, amounts 97. to no more than a, prcesumptio juris, ex eo 6 j Pras. Dom. Rel. 195. quod plerumque fit, and is not, in technical ' Estate of Beverson, 47 Cal. 621. In language, a, prcesumptio juris et de jure, m Turpin v. The Public Administrator, 2 itself absolutely conclusive, and not to be Bradf. 424, 426, the surrogate observed : redargued or disproved. . . The pro- " When parties are living in a meretricious posal or promise of the male party to state, a promise to marry on some future marry, and the surrender of her person by condition does not effect a marriage by the female, does indeed afford a presump- mere continuation of that connection." tion of mutual consent, so strong that if See, also, Beverson's Estate, Myrick Prob. not overcome by opposite and superior 35 ; Yelverton «. Longworth, 2 Scotch evidence, it may be always conclusive." Sess. Cas. 3d ser. H. L. 49, 4 Macq. Ap. p. 118. Cas. -745. 2 Armstrong v. Hodges, 2 B. Monr. ^ Ante, § 347, 355. 69. 151 § 367 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. thing — as, for example, a formal solemni^tiou — is bj the un- derstanding of both the parties to take place before they shall become husband and wife, marriage is not constituted. Copula does not make them married.^ But this doctrine should not be misunderstood. Mere secrecy,^ and a mere intent to have a fu- ture solemnization,^ will not alone prevent the transaction from becoming matrimony. § 365. Promise on Condition. — Where the promise of future marriage is conditional, copula will presumptively transmute it to present marriage or not, according to the following distinction. If the condition does not admit of being purified until after the copula, the transaction will not constitute marriage ; but if it could be purified before, or at the time, the presumption will be that it was purified, and a present mutual consent will be inferred from the carnal act.* An illustration of a condition not thus purified, is where the man tells the woman he will marry her if she becomes with child, or a child is born, from the connection. Here the promise in terms rests on an event to ha.ppen after the copula, which excludes the possibility of a present consent.* On the other hand, if a man has agreed to marry a woman when he can do so with comfort, or when she is free from debt, or is worth a sum of money named, the condition in its nature may at any time be purified ; and on copula following such a promise the law will presume the parties married.^ Hence, — § 366. Copula Condition of Promise — (Seduction). — If the copula is the condition of the promise, — as, where the man says to the woman, " I will marry you in six weeks if you will sleep with me to-night," — marriage is not constituted.^ § 367. Enforced Betrothal — To Uncertain Person. — " Albeit," says Swinburne, " the woman were betrothed against her will, yet if she suffer herself to be known by him to whom she was espoused, she is presumed to have consented unto him as unto her husband, whereby the spousals are made matrimony. Albeit the woman be uncertain ; as, if a man do swear to three sisters 1 Peck ». Peck, 12 R. I. 485, 34 Am. R. all, Ferg. Consist. Law, Rep. 163, App. 702. 90 ; Swinb. Spousals, 148. 2 Ante, § 351. 6 1 Fras. Dom. Rel. 194. 5 Ante, § 347, 355. ' Lords Brougham and Campbell, in * 1 Fras. Dom, Rel. 193. Reg. v. Millis, 10 CI. & F. 534, 626, 782 ; 5 Stewart v. Menzies, 2 Robinson Ap. post, § 371, 372. 547, 8 CI. & F. 309 ; Kennedy v. Macdow- 152 CHAP. XV.] _ CONSENT WITHOUT SOLEMNIZATION. § 370 that he will marry one of them ; for hy lying with one of tliem those spousals become matrimony." ^ But — § 368. Marriage Engagement — (Courtship). — A mere courtship, followed by copula, is not marriage.^ There must be a perfected mutual promise to intermarry ; ^ the evidence of which, as of any other contract, may be either circumstantial or direct.* The question has been agitated, whether the copula may be relied on as one of the circumstances in proof of the promise ; and the better opinion is, perhaps,^ that it may be. The promise must have a complete existence distinct from the copula ; ^ but the living together of the parties may have some effect, such as to " explain ambiguous words." ^ § 869. Some Judicial Expositions : — "Why ? — In some judicial expositions by our own courts, the doctrine has been so misapprehended that something relating thereto is deemed necessary. Thus, — § 370. Seemingly Adverse Cases. — As opposed to the possibil- ity of this sort of marriage, we have a case decided in the New York Court of Appeals, followed by a like one in Ohio, wherein, by way of dicta, if not of direct adjudication, the judges of these two States entered upon the novel work of distinguishing the two kinds of marriage — namely, per verba de prcesenti, and per verba de futuro cum copula — from each other ; and, while admitting the validity of the former, denying that of the latter. In the form of dictum, also, something like this was afterward done by a learned district judge, in one of the United States courts.^ Passing over this dictum, which does not seem to require any special observa- tion, the New York and Ohio decisions would be worthy of care- ful consideration in those other States in which the question is an open one, were it not that unfortunately the judges were referred to no books treating of the subject in any full way, nor was it explained to them, nor did they have any correct apprehension of the doctrine they supposed they were overruling. The respect 1 Swinb. Spousals, 2d ed. 225. ^ Ante, § 199. ^ Monteith v. Kobb, 6 Scotch Sess. Cas. « Harvie v. Inglis, 15 Scotch Sess. Cas. 2d ser. 934. 964. " Ante, § 9-11. ' Graham's Case, 2 Lewin, 97 ; Camp- * Ante, § 196-200. Hoggan v. Cragie, bell v. Honyman, 8 Scotch Sess. Cas. 1039, Macl. & K. 942 ; Honyman v. Campbell, 1050, 5 Wils. & S. 92. 8 Scotch Sess. Cas. 1039, 5 "Wils. & S. 92 ; 8 Holmes v. Holmes, 1 Abb. U. S. 525, Morrison v. Dobson, 8 Scotch Sess. Cas. 3d 538. ser. 347. 153 § 371 MAEEIAGE CONSTITUTED, NULLITIES. _ [BOOK III. justly due to all enlightened views from these two eminent tribu- nals is so great that it becomes necessary here to look carefully into the reasonings and misapprehensions on which these cases proceed. § 371. New York Case. — The judges in the New York case seem to have understood that the rule by which copula converts espousals defuturo into a marriage de prcesenti makes the parties husband and wife without their consent, instead of merely hold- ing them to be married, as in other circumstances, when they do consent. As showing how utterly the court misapprehended the doctrine, let us quote some of the language of the learned Chief- Justice in the opinion, and connect with it the necessary correc- tions in brackets. He said : " The principle that a promise fol- lowed by intercourse was in some sense a marriage, was a branch of the ecclesiastical system, resulting from the acknowledged jurisdiction of the ecclesiastical courts to compel the performance of such marriages by spiritual censures. [We have seen that there is no pretence of any such principle in the law of this sub- ject ; the doctrine, whatever it is, being a mere rule of evidence, which, however regarded in the ecclesiastical law, is fundamental also in the common law, and in natural reason. ^ The ecclesias- tical courts, for the promoting of good order, used to compel the public celebration of marriages and proniises to marry, both those which were per verba de future, with or without copula, and those which were per verba de prcesenti ; ^ but the doctrine was already settled in New York, and it was admitted, that marriage might be good without this public celebration. Nor had it been any- where held that one court would pronounce any marriage suffi- cient, merely because it believed another would, if applied to, compel the parties to intermarry. It is impossible such should be the law.J Having dispensed with that [the ecclesiastical] jurisdiction, we cannot consistently acknowledge any marriage to be valid which requires the intervention of a spiritual court to make it perfect. "We must insist upon those circumstances which the law requires in an executed contract upon any other subject. [This is true, but the inference implied is not. The transmuting of a future to a present promise of marriage by copula comes from 1 Ante, § 353-355. 457, 2 Salk. 437. See Grotius de Jure - Ante, § 280 and note ; Swinb. Spous- Belli et Pads, ii. 17, 15, WheweU's Transp. als, 2d ed. 222 ; Jessou v. Collins, Holt, ii. p. 194. 154 CHAP. XT.J CONSENT WITHOUT SOLEMNIZATION. § 371 applications of exactly the same principles by which any ordinary contract, of the terms of which there is only indirect or imperfect evidence, is established. Ordinary contracts are created by law, are inferred from the relations and actions of the parties, are even imposed on them against the consent in fact of one of them.^ And one of the rules applicable in ordinary contracts is, that in- nocence and virtue, instead of immorality and crime, shall be presumed ; giving, therefore, to an assumed agreement such form and implied terms as will render valid what would otherwise be invalid as contrary to good morals, to law, or to the policy of the law. On precisely the same principle, where parties, having con- tracted espousals de futuro, have, at a future time, copula, they may be presumed, prima facie, to have reached the period for that closer union whicli the law deems, in the absence of required forms, to be marriage ; or to have entered into the mutual agree- ment of present marriage which they had promised to each other ; or, in still other words, to have become, what they had undertaken with each other to be, husband and wife ; not committing, there- fore, what otherwise their act would be, a gross breach of social decorum, of law, and of public and private morals.^ This is not a novel doctrine, nor yet is it found only in musty old boolis of mere ecclesiastical law. It pertains to universal law and justice. It pervades every part of our common law. And so absolutely perfect is it in justice and equity that, were it unknown, it would be worthy to be introduced into our jurisprudence ; much more, being a part of it, is it worthy to retain its place, instead of being ejected thence.] Mutual promises to marry in future are execu- tory ; and, whatever indiscretions the parties may commit after making such promises, they do not become husband and wife until they have actually given themselves to each other in that relation. [This also is true ; and the doctrine of marriage per verba de futuro cum copula proceeds, as already explained, on the idea that, in the absence of circumstances or proofs to the con- trary, the parties to a marriage promise shall be presumed to have converted their future into a present consent, instead of vio- lating decency, morality, and law, when yielding themselves to what is implied in the marriage promise.] That this [the doc- trine laid down by the judge] has been the sense of the legal pro- fession and of the courts is evident from the rules relating to 1 Bishop Con. § 181-263. = Ante, § 353-355. 155 § 372 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. several actions in common use. If a man seduce a woman under a promise of marriage [the doctrine of consent per verba de futuro cum copula does not make marriage of this, as the learned judge seems to suppose it does^], we ajlow an action for the seduction at the suit of the father, and an action for a breach of the promise at the suit of the daughter. According to the plain- tiff's argument [the plaintiff was the party claiming marriage to have been contracted in the way we are considering] , both actions would be absurdities ; for, the marriage being complete by the act complained of [we have seen that in these circumstances the doctrine we are discussing does not make it complete by this act] , there would be no seduction, and no breach of promise. So in the action for a breach of a promise of marriage, if it appear that the plaintiff', on the faith of the defendant's promise, has been seduced by him, and has become enceinte, it is considered as a circumstance of great aggravation, and the damages are propor- tionably increased ; whereas, if the [this] plaintiff's position is sound, the defendant [in the breach-of-promise suit] by the very act has made all the reparation in his power, and has become the husband of the plaintiff." '^ As to which reasoning, moreover, — § 372. Breach-of-Promise Suit, &c. after Seduction. — In the single case, not of seduction under promise of marriage, meaning by this an unlawful intercourse to which the woman consents on the strength of the man's promising to marry her afterward, but of intercourse allowed where the seducer and seduced are already under contract to marry each otlier at a future time, there are the outward circumstances which may, the intent of the parties concurring, constitute marriage. But the doctrine of marriage per verba de futuro cum copula does not make even this necessa- rily a marriage.^ And the plaintiff, in each of the actions men- tioned by the learned judge, takes the position, by the very bringing of it, that the particular case is one in which marriage did not come with the copula. The position of the defendant is the same, so he does not allege the contrary ; for if he had been willing to be her husband, there would have been no occasion for the suit. Therefore the court greatly erred in assuming that these forms of action militate against the doctrine under consid- ^ Ante, § 366. ' See, as exactly iu point, tie cases 2 Cheney v. Arnold, 15 N. Y. 345, 352, stated post, § 375, 376. 353, 69 Am. D. 609. 156 CHAP. XV.J CONSENT WITHOUT SOLEMNIZATION. § 373 eration, even supposing the ignorance of plaintiffs and defendants concerning legal rights to be sufficient to establish a rule of law. But such ignorance is not often brought forward to overthrow a doctrine resting on an affirmative practice, either of our own courts, or of the' English ones in early times. § 378. Ohio Case. — The facts of the Ohio case were, that while the man had a wife living he cohabited with the woman, prom- ising to marry her when he could get a divorce from his wife. But he did not try to get the divorce ; his wife died ; he then renewed his promise of marriage, yet did not fulfil it, and still continued the cohabitation.^ This case, therefore, would seem to belong to the class wherein, whether the espousals were de prce- senti or defuturo cum copula, the marital status was by a mutual understanding not to attach until there should be a formal sol- emnization ; so that, by all rules, there was no marriage.^ Or, in another view, it was a case wherein the man did not mean mar- riage, and the woman knew it. So the continuation of the inter- course after the promise did not in these circumstances make marriage.^ Therefore the decision was right — not so the dicta. For the judge who delivered the opinion laid down, on the au- thority of what he termed "the well-considered" New Yoi-k case above stated, the broad doctrine that a marriage promise could not be converted by copula into marriage. And he said : " The idea that a contract for a future marriage, followed by cohab- itation as husband and wife, is itself a valid marriage at com- mon law [we have seen that nobody ever entertained this idea], seems to have obtained currency on the credit of remarks made by several elementary writers of distinguished learning and abil- ity, and by certain judges of high character, speaking by way of obiter dicta in cases in which this question was really in no way involved. But the better opinion now seems to be that these remarks are unsupported by any case actually adjudicated and entitled to be considered as authoritative [what cases are enti- tled to be considered as authoritative is, of course, mere opinion ; there is certainly not even a dictum, in any case prior to the New York one, casting suspicion upon what was theretofore the uni- form doctrine of the books ; and there are, in the notes to these sections, cases which to the writer seem conclusive of the ques- 1 Ante, § 363. » Ante, § 328, 331. 2 Ante, § 346-348, 360, 364. 157 § 374 MAERIAGK CONSTITUTED, NULLITIES. [BOOK III. tion, as express decisions, though a judge in a particular State might hold them not to be binding in his State] , and that such a contract never was a good marriage at common law, either in this country or in England. And the mistaken doctrine seems to have originated, either in the inadvertent confounding of what might, ill. the absence of rebutting evidence, be good presumptive evidence of a mai-riage, with marriage itself ; or fi'om the fact that such a contract |>er verba defuturo, followed by cohabitation, was one of which the canon law, as administered by ecclesiastical courts in England, until restrained by statute, would enforce the specific performance.^ Now, — § 374. Later — These Cases in other States. — When we see courts of the highest excellence — those to whom the entire pro- fession are in the habit of looking for the true light of the law — shutting their eyes and assuming the books to contain doctrines which they do not, then, under guise of overturning the false, undertaking to establish the false, we wonder whence this mar- vellous condition of things proceeds. Some suggestions concern- ing it were made by the author in another work ; ^ and it is there shown that even the courts of the same State should not follow error thus created. In other States, these singular New York and Ohio views have been urged upon the tribunals whenever the ques- tion has arisen ; and, with the one exception already mentioned,^ they have found no following. Particularly in -Illinois,* and subse- quently in Rhode Island,® they were discarded ; the court in each instance adhering to what had before been undisputed doctrine, 1 Duncan c. Duncan, 10 Ohio St. 181, futuro cum copula evidences marriage, is 183, 184. sustained." The court express the opin- 2 Bishop Non-Con. Law, § 908. ion, " that by the common law, if the con- 2 Ante, § 370. tract be made per verba de futuro cum cop- ' Port V. Port, 70 111. 484, 7 Chic. Leg. ula, the copula is presumed to have been News, 158. The reports of this case do allowed on the faith of the marriage not disclose whether or not the New Yorlc promise, and that so the parties, at the and Ohio cases were before the court, time of the copula, accepted of each other But that they were, together with my as man and wife." By Scholfield, J., p. 486 criticisms thereon, I am informed by the of 70 III., referring to the expositions of brief of Messrs. Rosenthal & Pence, conn- this book. This case of Port v. Port was sel for the appellant, which they did me referred to approvingly, by the same court, the favor to send me while the cause was in the subsequent one of Hebblethwaite v. pending. This brief maintains that Cheney Hepworth, 13 Chic. Leg. News, 19; iu- V. Arnold, the New York case, is "vir- volving, however, only a question of evi- tually overruled " by the subsequent one dence. Some later Illinois cases are cited, in the same court, of Caujolle v. Ferric, 23 ante, § 357, 358. N. Y. 90, where "the opinion in Starr v. ^ Peck v. Peck, 12 R. I., 485, 34 Am. Peck, 1 Hill, N. Y. 270, that a promise de R. 702. 158 CHAP. XV.j CONSENT WITHOUT SOLEMNIZATION. § 375 as explained in this sub-title.^ And whatever may be the future rulings in the former two States, no practitioner elsewhere need fear the overthrow of the old doctrine by his own court, if he ex- plains it properly to the judges. These expositions may well close with — § 375. Some Modern Scotch Opinions. — According to the ac- curately drawn head-note of a case which went to judgment Dec. 17, 1869, " a man courted a woman and lent her £300 with a view to their marriage. Subsequently copula took place on one occasion, on the faith of which, and of a supposed interchange of consent, the man spoke of the woman in public and addressed letters to her as his wife, for upwards of four years. She, how- ever, during the whole of the same period, openly repudiated the relationship. Thereafter, on being pressed to return the money, she raised an action of declarator of marriage. Held, after proof of the above facts, that marriage had not been constituted, in respect that although a promise to marry and subsequent copula had been established, the other facts of the case disproved any consent to marriage on the part of the woman." To establish the promise to marry, she relied partly on letters from the man to her. Upon these, upon the other facts, and upon the law. Lord Ardmil- lan observed as follows : " If, in point of fact, the will of the woman at the time of the copula was not to expect or desire the fulfilment of the promise, then there is no marriage. It is said that her consent is proved by legal presumption arising from the fact of copula following on the promise. It may be so proved. In such cases it frequently is so proved. But I am of opinion that the consent of the woman is not necessarily or universally proved by the presumption created by the fact of connection following after promise. Mere sequence- in point of time is not sufficient of itself to create the presumption of consent which the law requires. The post Tioe ergo propter hoc is not absolutely con- clusive. It seems to me impossible to exclude all inquiry into the conduct of the parties and the surrounding circumstances of the connection, as instructing the motives, feelings, and intentions which prompted or accompanied the act.^ Of course, the copula may be proved 'proxit de jure. In this case, connection on one oc- casion only has been established. That appears from the letters, 1 And see Estate of McCansland, 52 » See ante, § 358. Gal. 568, 577 ; Richard v. Brehm, 73 Pa. 140, 13 Am. R. 733. 159 § 375 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. and is instructed by the judicial admission of the defender. But in order to the constitution of marriage by promise suhsequente copula, the copula must be conceded by the woman on the faith of the promise. This is the principle or theory of our law on the subject. The relation of the copula to the promise must be that of a concession or surrender of person by the woman in reliance that the man's promise of marriage will be fulfilled. In the ordi- nary case of copula following on a promise of marriage, the natural and reasonable presumption is that the woman desired that the man should fulfil his promise, that she relied upon his doing so, and that she yielded her person on the faith of such fulfilment. That is a very natural presumption ; and, in the absence of evidence to the contrary, the law accepts the presump- tion as sufficiently instructing the required relation between the copula and the promise. But it is not a prcesumptio juris et de jure. It does not exclude proof to the contrary. I do not mean to say, that, after the fact of connection following a promise has been proved, the woman can be required to prove the motives and intentions under which either party acted. In the absence of all proof to the contrary, the law will apply the presumption. But the presumption must yield to the fact, if proof be adduced to meet the presumption, and be sufficient to displace and destroy it. Where there is a specific promise in writing, as a bond or letter given by the man to the woman, and accepted and re- tained by her, the fact of her so accepting and retaining the writ- ten promise is of itself a response to the promise, and the presumption will be, that, holding that promise in her possession, she yielded her person on the faith of it. But that element is wanting when the only evidence of the promise is obtained from the construction put upon letters written by the defender after the date of connection. I do not think it can be said to be uni- versally true, that the connection following a promise has been consented to on the faith of the promise. I could suppose such a case as a man writing a letter to a woman containing a distinct promise of marriage, and the woman replying, — ' I do not desire or care for your promise of marriage, — send me £5 and I will receive you to-night;' and £b is sent to her accordingly. Could it be reasonably maintained that connection following upon that letter, and that reply, constituted marriage ? I think not. Sup- pose another case. A gentleman, in the course of an impassioned 160 CHAP. XV.] CONSENT WITHOUT SOLEMNIZATION. § 376 love-letter^ distinctly promises marriage. To this letter the lady, in the more refined but not less licentious sentiment of Eloise, replies, — ' I want no promise of marriage ; I do not wish to be restrained by such obligations. No, make me mistress to the man I love.' I am of opinion that connection following upon such a letter and such a reply would not amount to marriage. All relation between the connection and the preceding promise would be disproved, and there would consequently be no room for the presumption that the one had induced the other." Said Lord Kinloch : " "When a marriage is sought to be constituted by a promise of marriage made by a man to a woman subsequente copula, I think it clear that it is not necessary that the woman prove a formal acceptance by her of the promise. But I consider it indispensable that she should satisfy the court that the conduct of the man produced in her mind the will and intention to be married to him, and that she yielded her person to his embraces in the belief and purpose of becoming his wife. In the ordinary case, this will be fairly presumable from the copula following on the promise. In the present very singular case, I think the evi- dence proves directly the contrary to have taken place ; for it satisfies me that at the time of the intercourse, on 5th July, 1864, the pursuer did not yield her person to the defender in the belief and purpose of becoming his wife ; and that for years afterwards she resisted the defender's proposals to be married, or to hold herself as married to him. She cannot be now permitted to set up the intercourse as effecting a marriage, which her con- duct proves she did not at the time intend." ^ Again, — § 376. Another. — A man, cohabiting with a woman of loose morals, gave her a written promise as follows : " I, A, do hereby promise to marry B, and provide for her according to my means until circumstances warrant such marriage, — always providing that in the interim she continues to lead a virtuous and exem- plary life." And a continuance of the cohabitation was held not to make the parties husband and wife. " In this document," it was observed, " the woman arranges that her person is to be at the man's command until his affairs admit of a marriage ; she is to remain his mistress until that time. It is matter of contract that this copula is not to constitute marriage." ^ From all which 1 Morrison v. Dobson, 8 Scotch Sesa. * Surtees v. Wotherspoon, 11 Scotch Cas. 3(1 ser. 347, 354, 355. Sess. Cas. 3d ser. 384, 388. VOL. I. — 11 161 § 379 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. we come back to the doctrine wherewith this sub-title began, that the principle in contemplation is one of evidence, not of law, and that it creates — § 377. No Separate Form of Marriage. — This marriage is, in effect, and in its essence, a marriage by consent de prcesenti ; and the common method of designating it is only for convenience, as indicating the sort of evidence by which it is established. There- fore, of course, its consequences are, by all opinions, precisely the same as those of marriage per verba de prcesenti.^ V. The Scotch Consent hy Sahit and Repute. § 378. General. — If, whether in this country or in Scotland, parties dwell together in the way of matrimony, and are reputed to be husband and wife, they are usually presumed, prima facie, to be married.^ With us it is the course of things to look upon this sort of fact as mere common evidence of marriage ; and as such it will in these volumes be considered further on. The Scotch books term the union thus proved, marriage by habit and repute ; yet still they contemplate it, like that of the last sub-title, as ordinary marriage, evidenced in a particular manner.^ So that — § 379. In Scotland. — The form of expression we are contem- 1 Dalrymple v, Dalrymple, 2 Hag. ward live together as man and wife, the Con. 54, 4 Eng. Ec. 485. In Reg. v. Millis, tie was indissoluble even by mutual con- 10 CI. & F. 534, it was agreed on all sides sent; and that, if the contract be made that espousals per verba de futuro cum cop- per verba de prcesenti, and remains without ula have precisely the same effect as per cohabitation, or if made per verba de fa.- verba de prcesenti, whatever that effect in turo, and be followed by consummation, it law may be. And see Portynton v. Stein- amounts to a valid marriage, and which bergh, cited in that case from the roUs of the parties (being competent as to age the province of York, ib. 841 ; Ferg. Con- and consent) cannot dissolve, and that it sist. Law, 119; Pennycook v. Grinton, is equally binding as if made in /acie .£■«- Ferg. Consist. Law, Eep. 95 ; Patton r;. clesim." There was no intimation, in the Philadelphia, 1 La. An. 98. In Jewell v. Supreme Court, that any distinction could Jewell, 1 How. XJ. S. 219, 233, 234, the be taken between marriage by words de question upon which the Supreme Court prcesenti, and by an agreement de futuro of the United States was equally divided, cum copula. — as see post, § 410, — was, whether the ^ 1 Fras. Dom. Rel. 113; Ferg. Con- following instruction, given by the circuit sist. Law, 116; De Thoren u. Attorney- judge, was correct : " The Circuit Court General, 1 Ap. Cas. 686 ; Gall o. Gall, held," says the report, " and so instructed 114 N. Y. 109. the jury, that if they believed that before ' Ante, § 340-352 ; 1 Fras. Dom. Rel. any sexual connection between the parties, 203; De Thoren v. Attorney-General, they, in the presence of^her family and supra, friends, agreed to marry, and did after- 162 CHAP. X?.j CONSENT WITHOUT SOLEMNIZATION. § 381 plating is particularly Scotch, — ordinarily deemed to have origin- ated in an ancient statute which provided that widows, who were holden and reputed wives of the defunct, should have their terce aye and till it should be clearly discerned that they were not lawful wives. ^ § 380. Explained. — It was in the House of Lords explained by Lord Westbury, on a Scotch appeal, as follows : " Cohabitation as husband and wife is a manifestation of the parties having con- sented to contract that relation inter se. It is a holding forth to the world, by the manner of daily life, by conduct, demeanor, and habit, that the man and woman who live together have agreed to take each other in marriage, and to stand in the mutual relation of husband and wife ; and, when credit is given by those among whom they live, by their relatives, neighbors, friends, and ac- quaintances, to these representations and this continued conduct, then habit and repute arise, and attend upon the cohabitation. The parties are holden and reputed to be husband and wife." ^ The cohabitation must be matrimonial.* The repute, to have its fullest effect, should be uniform. It then casts on the party denying the marriage the burden of proving that it did not take place.* Still, in some circumstances, a preponderating repute of marriage has been accepted as adequate.^ § 381. With ua. — As already said, the legal doctrine which is expressed by the words " Iiabit and repute " pertains equally to our own law.^ And we have in some of the States statutes confirming and extending it.^ The doctrine is not confined to localities wherein consent alone, without formal solemnization, may constitute marriage. It is applied to all sorts of marriages, even formal ones, in England and those States of our Union where ceremonies are essential to their validity, for the purpose of establishing a. prima facie case, at least in most civil actions. ' 1 Fras. Dom. Eel. 202. Some derive * De Thoren v. Attorney-General, 1 Ap. this rule of the Scotch law from the canon Gas. 686 ; Campbell v. Gampbell, supra. law. lb. s Lyle v. EUwood, Law Rep. 19 Eq. 2 Gampbell u. Campbell, Law Rep. 1 98, and the cases therein cited. See Rob- H. L. Sc. 182, 211 ; and see on p. 200. ertson v. Crawford, 3 Beav. 102. ^ " They [the witnesses] never heard ' Ante, § 378 ; Lyle v. Ellwood, Law this man call her his wife, or anything Rep. 19 Eq. 98 ; Cargile •,. Wood, 63 which could lead them to hold he me.int Mo. 501. And see Williams u. S., 44 to call her his wife. In no case where Ala. 24. this language was not used has the mar- ' Bishop Stat. Crimes, § 609 ; C. v, riage been sustained." Thomas v. Gor- Morris, 1 Cush. 391. don, 7 Scotch Sess. Cas. 872. 163 § 383 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. VI. The Effect of the Consent being Imperfect. § 382. Void. — Since the consent of the parties is an element without which marriage cannot exist, it follows that the want of consent considered in this chapter renders the supposed marriage a mere nullity .^ So that any person in interest may rely on the non-consent. § 383. The Doctrine of this Chapter restated. The necessity and general nature of the required consent were shown in the last chapter. Aside from statutes establish- ing formalities, there is no particular manner in which the mutual consent to present matrimony, without which there can be no marriage, must be expressed or evidenced. As a general proposition, however, it must be actual, — a concurrence of the inner mind, whatever be the outward form or want of form. An exception to this proposition occurs where one of the parties, meaning fraud or lust, and not marriage, concurs in the terms of marriage with one who believes him sincere, and permits him to enter upon what marriage implies. The law, in the interest of the deceived party, will hold such a marriage to be good. In what circumstances it will annul it on the suit of such party we shall see in the chapter on fraud. A leading distinction, verbal rather tlian real, except as it concerns the proofs, divides the con- sent into per verba de prcesenti, per verba de futuro cum copula, and habit and repute. These distinctions have been so fully ex- plained under the foregoing sub-titles, extending into more or less repetition, that nothing further upon them is required here. Where there is no consent there is no marriage ; and the seeming marriage is void, not voidable. 1 Campbell v. Campbell, Law Eep. 1 H. L. Sc. 182. 164 CHAP. XVI.] FORMAL SOLEMNIZATION. § 386 CHAPTER XVI. THE ELEMENT OP A FORMAL SOLEMNIZATION. § 384. Introduction. 385-389. Opinions as to how it should be Legislatively. 390-408. The English Unwritten Law. 409-422. Common Law of our States. 423-436. How Statutes providing Formalities interpreted. 437-441. Form of Marriage Ceremony. 442-448. Particular Provisions of Statutory Law. 449. Doctrine of Chapter restated. § 384. How Chapter divided. — Remembering that our inquiry in this chapter relates simply to what, or whether anything, must be added to the consent treated of in the last two chapters, to constitute marriage, we shall consider, I. Inharmonious Opinions as to how the Law should be Legislatively ; II. The English Un- written Law of the Subject ; III. The Common Law of our States on this Question ; IV. How Statutes providing Formalities are interpreted ; V. The Form of the Marriage Ceremony ; VI. Particular Provisions of Statutory Law. I. Inharmonious Opinions as to how the Law should he Legislatively. § 385. By Law of Nature. • — It was well observed by Lord Stowell that in a state of nature no forms need be added to an agreement of present marriage to render it complete.^ Now, — § 386. Improvements on Natural Law. — In the opinion of the Scotch people, and of the people of a part of our States, marriage, emphatically a thing of nature, is properly regulated by the law of nature. But in England, in other of our States, and largely in Continental Europe, civilization has undertaken to refine and im- 1 Lindo V. Belisario, 1 Hag. Con. 216, 230, 4 Eng. Ec. 367, 374. 165 § 388 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. prove nature's law, by denying marriage except under specified forms and ceremonies. Tlie consequence of whicli is that shrewd rakes entrap simple girls into nature's marriage, then at their whim or exalted pleasure cast them off, and leave a family of children under the disabilities and disgrace of bastardy. These are the two pictures, and the reader can choose for, himself between them. § 387. Reasons. — On the side which prefers nature's law it is said that the institutions of society should, as the common law adjudges,! lean to matrimony; and, when marriageable parties are living together as husband and wife, should hold them to be married, and not malie their children bastards, even though they omitted some commendable form in entering into the marriage state. On this side of the question it is deemed that if they have broken a rule of social order, they should be punished as other people are for the breach of any other such rule, by fine, impris- onment, or hanging ; but that their children, who will grow to be of as much consequence as their parents, should not be punished also, neither should the community be punished by the spectacle of a legalized meretricious union of parties who have the approba- tion both of natural and of religious law. On the other side, it is considered that there should be drawn an artificial line, separate and distinct from nature's, of a sort which the public clerk can keep upon record in his books, distinguishing matrimony from seduction. They deem that it would be a help to parents in con- trolling the marriages of their wayward children, and in a measure prevent exalted and wealthy young men from being bound by errors committed in their immature years, in premature love, and in rakish passions. And the interests of the duped girls, who are still admitted to have souls the same as the men, and of the children who have not even been duped, should not be put into tbe balance to weigh down these more ponderous inter- ests. In illustration of both sides of the question, — ■ § 388. Representative Instance. — To see more exactly how the argument stands, let us look at facts appearing in an English case. A man formed with a woman a connection outwardly mat- rimonial, perhaps not quite a marriage under the rules stated in the last two chapters, both contemplating a public solemnization by and by. They lived openly together as husband and wife, and 1 Ante, § 77. 166 CHAP. XVI.] FORMAL SOLEMNIZATION. § 391 had children who were publicly baptized, and who bore his name. Then he left this woman and married another, and had a child by her. Lastly, the second woman died, and in due form he married the first, and by her had more children. The consequence of all which was, that, of these three sets of children, the first set, born, in apparent wedlock, blessed by the Church in baptism, and legiti- mate by nature's law, were adjudged bastards. The child by the second woman, the fruit of a marriage polygamous both b_,' nature's law and by appearances as society looks at things, was held to be legitimate. The third set were justly deemed to be legitimate.^ Is any argument needed to show how the law should be, under facts like these ? The present author does not propose to obscure by words what is so obvious to the natural sight. Now, — § 389. Common Course of Things. — Not to attempt anything here in the way of historical detail, no one can look at this ques- tion as it appears in the laws and practices of different people, without discovering the general truth to be, that, in proportion as a nation or a State passes out of the condition of simple innocence and purity into artificial rakishness, lust, and the debasement of real marriage, the laws put up their artificial barriers to matri- mony, in cumbersome forms which they render essential to legal marriage. Let us hope that the legislation of our States, which is travelling, yet not rapidly, in this direction, will pause, and then reverse its steps. II. The English Unwritten Law of the Subject, § 390. How Anciently. — Prior to the Council of Trent, the authority of which was never acknowledged in England ,2 nothing more than the mere consent treated of in the preceding chapters was, by the general matrimonial law of Christian Europe, essen- tial to marriage.^ But whether the same law prevailed in Eng- land, Ireland, and Scotland is a question which has greatly agitated the tribunals of those countries. § 391. The Question — is simply, whether or not, to constitute marriage at the common law, the mutual consent of the parties, such as is explained in the last two chapters, must be interchanged I In re Grove, 40 Ch. D. 216. ^ Dalrymple v. Dalrymple, 2 Hag. Con. - Poynter Mar. & Div. 13. 54, 4 Eng. Ec. 485. 167 § 395 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. in the presence of a person in holy orders; namely, a bishop, priest, or deacon, episcopally ordained.^ § 392. All concur in what. — It is apparently conceded that the marriage need not be in facie Ecclesice, further than the presence of such a person makes it so ; celebration in a private room being just as well as in a church. Neither is it indispensable for the person in holy orders to take any active part ^ in the marriage ; even though he refuses, it is valid. Further as to — § 393. ■What Clerical Presence. — By those who deem the cleri- cal presence essential, that of a Dissenting ecclesiastic is regarded as without avail. Perhaps the parish priest of the parties is re- quired. At all events, he must be one episcopally ordained ; that is, a Roman Catholic clergyman, previously to the Reformation ; after the Reformation, a clergyman of the Church of England, though even then, aside from any statutory prohibition, a Roman Catholic clergyman would suffice, his ordination being regarded as valid. No compliance with forms, either in the church or else- where, is by this opinion of any effect when the proper clerical person is not present.* § 394. "Why the Doubt. — A modern question like this would be quickly settled. But at the proper time for its intelligent de- cision, the people were under the almost entire control of the priesthood; at all times, unless following some opinions we ex- cept the very early ages of Christianity, religious ceremonies were regarded as highly appropriate to attend the nuptials, rendering a marriage without them the rarest of all occurrences ; and, when there was a marriage without the clerical presence, either party to it could compel the other to solemnize it in facie Ecclesice.^ Therefore, until manners changed, and until during the reign of George IV. the ecclesiastical suit to compel the solemnization of marriage in facie Ecclesioe was abolished,^ there was little occasion to agitate this question before the courts ; hence its early unset- tled condition. § 395. By all Opinions, — the mutual consent to present matri- mony, with no clerical intervention, produced a legal result differ- 1 By statute, in England, the only or- 2 Upon this one point, however, doubt ders allowed after the Reformation were ia cast by the subsequent case of Beamish bishops, priests, and deacons. Besides v. Beamish, 9 H. L. Cas. 274. And see these, the Romish Church reckoned five post, §441. other orders ; namely, sub-deacons, aco- ' Keg- ■'• Millis, 10 CI. & F. 534. lyths, exorcists, readers, and ostlaries. * Ante, § 280, note, 371. Rogers Ec. Law, 2d ed. 668. ^ Ante, § 280, note. 168 CHAP. XVI.J FORMAL SOLEMNIZATION. § 396 ing greatly from the mere interchange of the executory promise to marry. It created a lasting obligation, which the parties could neither singly nor mutually dissolve. If tliey lived together after the manner of husband and wife, they did, not thereby commit fornication. Neither one could marry another; and, should either do it, though in the face of the Church and with full observance of forms, this second marriage was liable to be dissolved and held void ab initio by a proceeding in the Ecclesiastical Court, such dis- solution being termed a divorce causa prcecontr actus. ^ In other words, such second marriage was voidable, not, like an ordinary polygamous one, void. Moreover, as just said, the marriage with- out clerical intervention entitled either party to compel the other, by a suit in the spiritual court, into a public solemnization in tlie face of the Church. If either had sexual intercourse with another person, he might be proceeded against for adultery. The contract was considered to be of the essence of matrimony, and was styled in the ecclesiastical law verum mati-ivioruum, and sometimes ipsum matrimonium.^ Now, — § 396. As to whicli. — Considering that even the opinions which require clerical intervention concede so much to the mutual con- sent without it, let us pause and ask what this universally admit- ted thing, in real human shape, is. Two mai-riageable persons are indissolubly united in such a way that sexual commerce between them is not fornication, that the like commerce of eitlieif with another is adultery, that neither can marry any other person, — if this is only concubinage, still it contains the chief of the ele- ments of marriage. Without these elements, there can be no marriage ; with them, only incidentals ^ need be added to make the marriage complete. 1 Ante, § 280 and note, 371. was an executory agreement to many, not 2 Eeg. V. Millis, 10 CI. & F. 534, 624, the promise per verba de prcBsenti, p. 763, 626, 654, 655, 703, 707, 832, 856, 858. 784. Contra, Lord Benman, p. 815. In Some slight doubt was expressed In this accordance with this opinion of Lord case upon one or two of the above propo- Campbell's, is that expressed by Wood- sitions. Thus the solicitor-general put it bury, J. in Londonderry v. Chester, 2 in argument that a marriage against the N. H. 268, 9 Am. D. 61. On this point, impediment of precontract was void, not I think the last reported Knglish case is voidable, p. 608. And Lord Campbell Baxtar v. Buckley, 1 Lee, 42, 5 Eng. Ec. was of opinion that the precontract which 301. Its judgment is of a date one year could be enforced by a suit in the Ecclesi- earlier than the first English marriage astical Court, and which rendered a subse- act, which put an end to these suits. The quent marriage in disregard of it voidable, contract was per verba de prcesenti (not in 3 Ante, § 15. 169 § 399 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 397. Opinions differ in what. — We now come to the disputed ground. On the one hand it is contended that, not only were parties refusing to have their marriages publicly celebrated liable to ecclesiastical censure, and to a suit to enforce public solemni- zation, but also that substantially the rights of matrimony, such as the legitimacy of children, and in later times dower and cur- tesy, flowed from these connections, which, in other words, were complete marriage. On the other hand, the opinion is that though the cohabitation was not adulterous, the children were ille- gitimate ; that neither could the woman have dower nor tlie man curtesy ; and that, though a public marriage solemnized after- 'Ward between one of the parties and a third person was voidable in the Ecclesiastical Court and the cohabitation under it was pun- ishable there as adulterous, yet it would not subject them to an indictment for polygamy, — the inference assumed to follow from all which being, that this union was not marriage.^ § 398. How Question decided for Scotland. — In Scotland, this question was earliest put to rest. The leading Scotch cases are McAdam v. Walker, which, beginning in the year 1805, and trav- elling through the Scotch courts, was carried to the House of Lords and there decided in 1813 ; ^ and Dalrymple v. Dalrymple, which was a suit in the Consistory Court of London to affirm a Scotch clandestine marriage, adjudged there by Lord Stowell in 1811, and appealed to the Court of Arches, and thence to the High Court of Delegates, and decided by the latter in the year 1814.^ Tn each of these cases, the marriage was without clerical 'interver.tion ; and in each, in every stage of it, was held to be good. Lord Sto well's opinion in the Dalrymple suit has always been esteemed a production of matchless beauty and learning, quite unsurpassed in forensic discussion. Still the result has not been universally approved, even by Scotch lawyers ; but all admit that the question is, for Scotland, finally adjudicated, no more to be stirred.* § 399. For England' — Ireland and Elsewhere. — The first Bng- writing) and the parties were minors. ^ McAdam v. Walker, 1 Dow, 148. The sentence was, says the report, that And see 2 Hag. Con. 97, 4 Eng. Ec. 504. " Mr. Buckley solemnize marriage in the ' Dalrymple v. Dalrymple, 2 Hag. Con. church with Susanna Baxtar within sixty 54, 4 Eng. Be. 485, and note at the end of days after he shall be served with a moni- the case, tion for that purpose." * 1 Fra«. Dom. Rel. 87 et seq. 1 Reg. V. Millis, as cited ante, § 393- 395. 170 CHAP. XVI.J FORMAL SOLEMNIZATION. § 401 lish Marriage Act, commonly called Lord Hardwicke's,^ settled the question for England as to future marriages, yet left it open for the rest of the British dominions. The Dalrymple case, how- ever, was generally understood as determining it for those other portions, in the same way as for Scotland. But, — § 400. Reg. V. Muiis. — In 1844, the case of The Queen v. Millis came before the House of Lords on an appeal from Ireland. The defendant Millis, who was a member of the Established Church, had there been married to a woman who was either a member of the same Church or a Dissenter, by a Presbyterian minister, in the form common with Presbyterian Dissenters ; and cohabitation followed. Then, while she was living, he entered into another- marriage, about which there was no dispute. He was indicted for polygamy. The first marriage constituted a complete inter- change of the consent per verba de prcesenti. Was it sufficient to sustain the indictment ? The judges of Ireland differed, being about equally divided in opinion ; though in form, that the case might be taken up, they united in giving judgment against the crown. The House of Lords, on the question coming before them, consulted the common-law judges of England ; and the latter unanimously advised that the first marriage was, as a foundation for the indictment, invalid. But the Lords, who gave judgment, were equally divided, — Brougham, Denman, and Campbell being in favor of sustaining the first marriage ; the Lord Chancellor (Lyndhurst), Cottenham, and Abinger being of the opposite opin- ion. So the rule Semper prcesumitur pro negante applied, and judgment was formally rendei'ed for the defendant.^ Now, — § 401. Concerning this Case. — We have here a question of al- most pure ecclesiastical law, submitted to a tribunal composed of common-law and equity lawyers, who necessarily possessed little or no knowledge of the subject. So they asked advice, not from the ecclesiastical judges, whose functions had qualified them to give it, but from the uninstructed common-law judges. The lat- ter were competent to learn, but they were not allowed the neces- sary time. Lord Chief-Justice Tindal, who delivered their opinion, complained of the want of time for investigation ; and the opin- ion throughout shows the complaint to have been well founded. Thereupon the law Lords, with this unintelligent advice before them, and not one of them being an ecclesiastical judge, or other- 1 26 Geo. 2, c. 33, A. D. 1753. 2 Keg. v. Millis, 10 CI. & F. 534. 171 § 403 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. wise possessing any special knowledge of the subject, proceed, not by a majority opinion, but by separate opinions equally divided, to overturn what that matchless ecclesiastical judge Lord Stowell had held on the amplest investigation, aud what every other ecclesiastical judge, both before and since, has deemed to be the true law. Again, — § 402. statutes influencing this Case. — As a whole, the opin- ions alike of judges and Lords were apparently based on what they deemed to be the common law of England. Yet there were statutes relating to Ireland, more or less considered in the argu- ments ; one of which, in particular, had great weight with the Lord Chancellor, and it may have turned the scale. It was 58 Geo. 3, c. 81, which provided, that thereafter there should no " suit or proceeding be had in any ecclesiastical court in Ireland, in order to compel a celebration of any marriage in facie JSccle- sice, by reason of any contract of matrimony whatever, whether per verba de prcesenti or per verba de futuro." It seemed , to this learned person that the effect of this statute had been to change the character of the contract per verba de prcesenti.^ Lord Chief- Justice Tindal plainly did not put his opinion upon this ground ; and, though he expressly said the other judges »were not answer- able for his reasons, he employed language not quite consistent with the idea of any other basis for their conclusion than the Eng- lish common law as unaffected by marriage acts. § 403. Peculiar Construction of Marriage Regulations — (Birec- tory). — We shall see further on^ that from early times to the present, alike in England and in our States, statutory regulations of marriage are construed, not as mandatory, but as directory only, unless they have an express clause of nullity. And this rule applies as well to canons and other ecclesiastical regulations as to legislative provisions. So that though a marriage is cele- brated in direct violation even of a written law not containing such clause, and though the officiating person and the parties are punishable therefor, it is not consequently invalid. This con- sideration, which seems not to have bsen in the minds of the common-law judges in advising in The Queen v. Millis, disposes of a large proportion of the arguments against the marriage with- ^ Page 871 of the report of the case of held by Mr. Justice Cromptou, in the Reg. V. Millis, which commences 10 CI. & court below. See p. 552, and Dix's Eep. F. 534. And see also the opinion of Lord 254. Cottenham, p. 890. The same was also * Post, § 423 et seq. 172 CHAP. XVI.] FORMAL SOLEMNIZATION. § 404 out clerical intervention.^ There were, in former times, numer- ous canons, and the like, making it an offence against the Church to marry without the presence of the priest, but these were never held to render the marriage in violation of them void. Upon them the common-law judges, not calling to mind how the eccle- siastical courts interpreted them, stumbled. Again, — §404. Dower — is a mere collateral incident^ of marriage, which can subsist as well without as with it. Hence it is no argument against the validity of marriage without clerical inter- vention that in early times it did not carry dower. Common-law dower, it is well known, originated in an old custom for the hus- band or some other person voluntarily to assign dower to the woman at the nuptials, or "church door," as the phrase was. Consequently Britton, who, according to his late editor, Nichols, wrote in or near 1291 or 1292, 20 Edw. I.,^ says : "Dower is not assigned in all places nor at all times, but at certain, to wit, at the commencement of the contract and at the door of the church only, with the solemnity of witnesses, and not in private. For as secret marriages, performed in private, are prejudicial to heirs with reference to the succession, so are they prejudicial to wives with respect to the recovery of their dowers. The nature of dower, then, is such that where espousals are solemnized at the church in the presence of the people, in such case and not other- wise dower may be demanded."* But what is the meaning of the 'phrase " at the door of the church " ? This is explained in a note by a contemporaneous lawyer and judge, appended to this very passage, and it has been preserved by the editor. Says the annotator : " Every contract of marriage, at which there is pres- ent a parish priest and his clerk, is at the church door, and suf- ficiently solemn ; for it is in facie Ucclesice." Now, bearing this explanation in mind, let us turn to another passage in this an- cient author. Speaking of the recovery of dower by action, he says : "Again, the tenant may say, that, although she [the widow] ^ The doctriDe of the " King's Eccle- that in the course of a long professional siastical Law " was well stated (ante, life he has not met with a question so em- § 106); hut the effect of the doctrine harrassing. p. 873. could only be to weaken somewhat one ^ Ante, § 15. of Lord Stowell's minor arguments in the ' The reader may like to compare this Dalrymple case. Whatever conclusion date with ante, §-102, 106. the reader may arrive at, he will sym- * Britton, 5, 1, 2, p. 236 of Vol. 2, pathize with Lord Cottenham, who says Nich. ed. 173 § 405 MARRIAGE CONSTITUTED, NULLITIES. [BOOK 111. was his lawful wife, yet she ought not to have dower, because she was never solenanly married at the church door, and consequently dower was never established upon her there. And if this be veri- fied, she shall not recover any dower on account of the words of the writ ' at the church door.' " ^ A little further on we read : " But now it may be asked whether, if a man kept a mistress in concubinage, and begot a child by her, and afterwards secretly married her elsewhere than at the church door, and after such marriage had another child by her, and then publicly married her at the church door, and there endowed her, and after that had a third child by her, which of these children would be admissible to the succession of the inheritance of the father, and by reason of which of them the mother shall be entitled to dower after the decease of the father. The answer in such case is, that the middle son ought to be admitted to the succession of the inherit- ance of the father, and shall be accounted legitimate in respect of his birth although the marriage was secret, provided he can aver that he was born within wedlock, whether the espousals were pub- licly or privately performed. And yet the mother shall not have dower by reason of that child, but she shall have it by reason of the third son, and of the solemn espousals wherein she was endowed at the church door. Hence it appears, and true it is, that sometimes the mother shall not have dower although the son may be admissible to the succession of the inheritance of his father, and that no right ever accrues to any woman to demand dower, unless it was established to her at the church door, and this whether in a time of interdict or not."^ Now, — § 405. Consequent Common Law of Marriage. — In the light of this exposition from Britton, seeing that a marriage by a priest was never deemed secret, but as celebrated at the " church door," or in facie Ecclesioe, we have here a clear affirmance of the better common-law doctrine. And if we take out of our view the old ecclesiastical inhibitions of marriage otherwise than " at the church door," and the old common-law cases which held that there could be no dower when the marriage was not "at the church door," we shall find but little of even apparent authority left to sustain the doctrine that anything connected with the "church door" was an inseparable element in marriage, — leav- ing unquestioned what Britton tells us was the law of his day, ' Britton, p. 265 of Vol. 2, Nich. ed. ^ 2 Britton, ut snp. p. 266. 174 CHAP. XVI.] FORMAL SOLEMNIZATION. § 407 that marriage without clerical intervention is good, even though contracted in private; §406. Reg. V. Millis as Authority in Ireland. — Though The Queen v. Millis was decided by a tribunal equally divided, and the particular result, instead of the opposite one, came from the special form in which it was taken up to the court of last resort, still it is held to be conclusive as to the Irish law, the English having been already determined by statute.^ § 407. In British Colonies. — The inquiry how this decision affected the colonies is of slight consequence to our jurisprudence. That it is binding in them is not apparent to the writer ; ^ in like manner, there is no pretence that it changed the Scotch law.^ The House of Lords, on an appeal from any part of the British dominions, would seem necessarily to have jurisdiction of the law of the place only whence the appeal comes. And no court, sitting in or for a colony, has, so far as the author's investigations have gone, shown for it any respect. In the Consistory Court of Lon- don, in 1847, on a divorce suit for adultery, where the marriage had been contracted per verba de prcesenti before a Presbyterian clergyman in New South Wales, Dr. Lushington held it to be a sufficient foundation for'the divorce, and employed, in announcing this decision, the following language : " When I consider how much that question was discussed in the celebrated case of The Queen v, Millis, I am justified in saying that nothing fell from any one of the law Lords in the House of Lords (I am not allud- ing to the opinions expressed by the common-law judges) which in any way intimated that such a marriage would not be sufficient to enable this court to proceed to a separation « mensa et thoro. I am not disposed to carry the decision in that case one iota fur- ther than it went, for two reasons : first, as the law Lords were divided, it was only in consequence of the form in which that case came before them, there could be considered to be a judgment at all ; in the second place, were I to hold the presence of a priest in the orders of the Church of England to be necessary, I should be going the length of depriving thousands of couples, married in 1 Attorney-General v. Dean and Can- tlior's old commentaries on Mar. and ons of Windsor, 8 H. L. Cas, 369, 392, Div.), 9 H. L. Cas. 274; DuMoulin v. 393; Catherwood v. Caslon, 13 M. & W. Druitt, 13 Ir. Com. Law, 212. 261, 8 Jur. 1076; Beamish v. Beamish, 1 ^ j^nj gge the above cases. Jur. N. 8. pt. 2, 455 (also reprinted in a ^ Ante, § 398. note to § 173, 2d and 3d eds. of the au- 175 § 410 MAEEIAGE CONSTITUTED, NULLITIES. [BOOK III. the colonies and the East Indies (where till of late there were no chaplains), of the right to resort to this court for such redress as it can give in cases of cruelty or adultery. Until I am con- trolled by a superior authority, for no further examination of the question will induce me to change my opinion, most unquestion- ably I shall hold in this, and all other similar cases, that where there has been a fact of consent between two parties to become man and wife, such is a sufficient marriage to enable me to pro- nounce, when necessary, a decree of separation." ^ It was also determined that this marriage could not be adjudged void in a suit for nullity .2 In a later case, the Court of Queen's Bench, in our neighboring province of Upper Canada, intimated an opinion adverse to receiving the decision in The Queen v. Millis as suffi- cient to establish the law of marriage in accordance with the doctrine maintained by the common-law judges.^ And still later the Lower Canada tribunal followed distinctly in the same path. The decision " is not one by which this court considers itself bound." And Monk, J., announced this conclusion after " having made," as he states, " a careful examination of the question." * § 408. Other Views, — adverse to The Queen v. Millis, might be added indefinitely. But as we are about to see that this case is not accepted in the United States, the foregoing will suffice. III. The Common Law of our States on this Question. § 409. Reg. V. Millis with us. — The reader need not be told that this case, so recent, is not of authority in our States. .Even as opinion to persuade, the foregoing explanations show that it is no stronger on the one side than on the other. And if we were to derive our doctrines on this question from the mother country, it would be more reasonable to take them from the earlier expo- sitions, upon cases originating in Scotland, where the question was unmixed with interpretations of British marriage acts, than from this mixed case, decided in haste, by an equally divided court.^ And — § 410. In General in this Country. — The doctrine that the in- 1 Catterall ... Catterall, 1 Eob. Ec. ' Breakey v. Breakey, 2 IT. C. Q. B. 349. 580, 582. * Connolly v. Woolrich, 11 Lower Can- 2 Catterall v. Sweetman, 1 Eob. Ec. ada Jurist, 197, 224. 304. « Ante, § 398, 400-407. 176 ' CHAP. XVI.] FORMAL SOLEMNIZATION. §410 tervention of a person in holy orders is essential to marriage has found small support in this country. It has been held to be un- necessary at the common law, by the courts of New York,^ New- Jersey,^ Pennsylvania^ (undecided whether or not altered by statute*), Kentucky^ (but the law was afterward changed by statute^), Vermont substantially,^ Oliio," Tennessee,^ Alabama,^" New Hampshire ^^ and Maryland^^ possibly. South Carolina,i^ Cali- fornia,^* Michigan,^" Missouri,!'^ Mississippi,^'' Minnesota,^^ Illinois,^® Ehode Island,^" Georgia,^! Indiana,^^ and Kansas.^^ The same is held in Louisiana, whose common law is derived from Spain, in which country the Council of Trent was received, yet it did not become binding in the colony.^* The Supreme Court of the United 1 Fenton v. Reed, 4 Johns. 52, 4 Am. D. 244 ; Starr v. Peck, 1 HiU, N. Y. 270 ; Eose V. Clark, 8 Paige, 574; Clayton v. Wardell, 4 Comst. 230; Cunningham v. Burdell, 4 Bradf. 343 ; Grotgeu v. Grotgen, 3 Bradf. 373 ; Hayes v. P. 25 N. Y. 390, 82 Am. D. 364; BisseU v. Bissell, 55 Barb. 325, 7 Abb. Pr. N. s. 16 ; Van Tuyl v. Van Tuyl, 57 Barb. 235, 8 Abb. Pr. N. s. 5 ; "Wright V. AVright, 48 How. Pr. 1 ; Cau- joUe V. Terrie, 23 N. Y. 90, 106 ; Davis v. Davis, 7 Daly, 308 ; Gall i-. Gall, 114 N. Y. 109; aute, § 371 et seq. 2 Pearson r. Howey, 6 Halst. 12, 18, 20, where Pord, J. so held, — the other judges being silent upon the point. 3 Hantz V. Sealey, 6 Binn. 405 ; C. u. Stump, 53 Pa. 132, 91 Am. D. 198. 1 Pa. Stat. 1885, No. 115, § 1. •- Dumaresly v. Fishly, 3 A. K. Mar. 368. •> EstiU V. Rogers, 1 Bush, 62 ; Stewart V. Munchandler, 2 Bush, 278. ' Newbury v. Brunswick, 2 Vt. 151, 19 Am. D. 703. See Nortbfield v. Plymouth, 20 Vt. 582; S. v. Rood, 12 Vt. 396. s Carraichael v. S. 12 Ohio St. 553. 9 Bashaw v. S. 1 Yerg. 177; Grisham V. S. 2 Yerg. 589 ; Andrews v. Page, 3 Heisk. 653. 13 S. V. Murphy, 6 Ala. 765, 2 West. Law Jour. 192, 41 Am. D. 79. Perhaps the question is not fully settled in this State. Robertson v. S. 42 Ala. 509 ; Campbell v. Gullatt, 43 Ala. 57. 11 Londonderry v. Chester, 2 N. H. 268, 277, 9 Am. D. 61. And see Keyes o. Keyes, 2 Post. N. H. 553. But compare these with Dumbarton u. Franklin, 19 N. H. 257. VOL. I. — 12 12 Cheseldine v. Brewer, 1 Har. & McH. 152. This case is, to appearance, over- ruled, and the doctrine held differently, in the subsequent case of Denison v. Deni- son, 35 Md. 361, as to which see post, §416. 13 10 McCord's Stat. 357, Ed. note; s. c. Law Jour. 384. 11 Graham v. Bennet, 2 Cal. 503 ; Sharon v. Sharon,' 75 Cal. 1 ; Titcomb's Estate, Myrick Prob. 55. And see In re McCausland's Estate, 52 Cal. 568. Con- sult, however. Holmes u. Holmes, 1 Abb. U. S. '525. . 15 Hutchins v. Kimmell, 31 Mich. 126, 18Am. R. 164. 1^ Dyer <-. Brannock, 66 Mo. 391, 27 Am. R. 359. See Boyer v. Dively, 58 Mo. 510. 1^ Dickerson v. Brown, 49 Missis. 357 ; Floyd V. Calvert, 53 Missis. 37 ; Rundle V. Pegram, 49 Missis. 751 ; Hargroves i/. Thompson, 31 Missis. 211. 18 S. V. Worthingham, 23 Mipn. 528. 19 Port V. Port, 70 111. 484; Hebble- thwaite v. Hepworth, 13 Chicago Leg. News, 19. 21 Peck V. Peck, 12 R. I. 485, 34 Am. R. 702 ; Mathewson v. Phoenix Iron Foun- dry, 20 Fed. Rep. 281. 21 Askew ?•. Dupree, 30 Ga. 173 ; Clsirk V. Cassidy, 64 Ga. 662. 22 Teter v. Teter, 101 Ind. 129, 51 Am. R. 742. 23 S. V. Walker, 36 Kan. 297, 59 Am. R. 556 ; Roche v. Washington, 19 Ind. 53, 57, 81 Am. D. 376. 24 Patton '•. Philadelphia, 1 La. An. 98 ; Holmes v. Holmes, 6 La. 463, 26 Am. D. 177 § 414 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. States was once equally divided on this question,' but afterward it accepted the common doctrine of the State courts just ex- plaiued.2 ^ent. Reeve, and Greenleaf, in their text-books, con- sider clerical intervention to be unnecessary at the cornmon law,^ and this may well be deemed the American doctrine.* It is, as otherwise expressed, that the marriage by mere consent is good throughout the United States, except in some States where local statutes have provided otherwise. Nor has the author been able to find in our American books any opinion or adjudged case in harmony with The Queen v. Millis ; holding that only in the pres- ence of a person in holy orders can a valid marriage be con- tracted. Still, — § 411. Contrary and Qualifying Views. — In seeming diver- gence from the main current of our American law, we have the following, — § 412. North Carolina. — It was in this State strongly ex- pressed, that the common law of the State recognizes no mar- riage otherwise than according to the statutes,^ — " as to which," the court observed in a subsequent case, " we express no opin- ion." ^ But such, all agree, is not the common law of England. Again, — § 413. Tennessee. — While, in Tennessee, marriage by mere mutual consent is admitted to be good at the common law, some of tiie cases assert that colonial statutes superseded this rule." But later this interpretation of them has been questioned. ^ §414. Massachusetts. — In Massachusetts a distinguished judge observed : " When our ancestors left England, and ever since, it is well known that a lawful marriage there must be celebrated before a clergyman in orders," — language showing conclusively 482 ; Succession of Prevost, 4 La. An. 347, law, as formerly prevailing in Texas, see 349 ; Hallett v. Collins, 10 How. U. S. 174. Lewis v. Ames, 44 Tex. 319. 1 Jewell V. Jewell, 1 How. XJ. S. 219. * S. v. Samuel, 2 Dev. & Bat. 177. See Elackburn <,. Crawfords, 3 Wal. The question was, whether marriages by 175. cohabitation among slaves were valid, - Meister r. Moore, 96 XJ. S. 76, 78; and they were held not to be. But the Hallett V. Collins, supra, at p. 181 ; Math- decision rested as much on the legal inca- ewson 0. Phcenix Iron Foundry, 20 Fed. pacity of slaves as on the marriage com- Rep. 281. nion law of the State. 3 2 Kent Com. 87 ; Reeve Dom. Rel. e g. „. Ta-cha-na-tah, 64 N. C. 614. See 195 et seq. ; 2 Greenl. Ev. § 460. Cooke v. Cooke, Phillips, N. C. 583. * Mexican Marriage. — As to mar- ' Grisham r. S. 2 Yerg, 589, 592; riage under the Mexican law, formerly Bashaw v. S. 1 Yerg. 177. prevailing in California, see Harman u. ^ Andrews v. Page, 3 Heisk. 653, 667. Harman, 1 Cal. 215. Under the same See Johnson r. Johnson, 1 Coldw. 626. 178 CHAP. XVI.] FORMAL SOLEMNIZATION. § 416 that he had not bestowed upon the subject any degree of his usual research.^ Subsequently the question in this State has been more fully examined ; and the conclusion reached is, that, whatever be the common law of England, it was not adopted in colonial times, but was superseded, and so remains, by numerous early and later statutes.^ § 415. Maine. — The question in this State is still undecided;^ though the court seems to have taken it for granted that the statutory forms must be followed.* § 416. Maryland. — The latest opinion in Maryland is in a degree harmonious with that in Massachusetts. It is not a fol- lowing of any interpretation of the common law of England ; but the court holds, overruling a former decision not deemed to be binding,^ that the unwritten law of the State requires some official or religious ceremony to make the marriage valid. " We think we are safe in saying," said Alvey, J., " that there never has been a time in the history of the State, whether before its indepen- dence of Great Britain or since, when some ceremony or cele- bration was not deemed necessary to a valid marriage. In the early days of the province, it was not absolutely necessary that a minister of religion should officiate, — a judge or magistrate could perform the ceremony, — but still, in all cases, some formal celebration was required." ® Here, the reader perceives, is an express declaration that the common law as adjudged in The Queen v. Millis was never of force in Maryland. The law, or custom, affirmed was local to the State. 1 Milford V. Worcester, 7 Mass. 48, 53. it is that all marriages were by the court See also 2 Dane Abr. 291 ; 9 ib. 161 ; post, deemed to be good, though there was no § 431. Gray has a note to Oliver v. Sale, formal solemnization, or the presence of a Quincy, 29, which seems considerably to priest in orders, or of any official person, illumine this question. He says: "In 2 C. u. Munson, 127 Mass. 459, 34 Am. 1758, it was adjudged by the Superior K. 411; Thompson v. Thompson, 114 Court of Judicature that a child of a fe- Mass. 566. male slave 'never married according to 3 Brunswick v. Litchfield, 2 Greenl. any of the forms prescribed by the laws of 28 ; Damon's Case, 6 Greenl. 148 ; Cram this laud,' by another slave who ' had kept „. Burnham, 5 Greenl. 213, 17 Am. D. her company with her master's consent,' 218; Ligonia v. Buxton, 2 Greenl. 102, was not a bastard." Referring to Flora's 11 Am. D. 46. Case.Rec. 1758, fol. 296. "We shall see in a * S. «. Hodgskins, 19 Me. 155, 36 Am. subsequent chapter, post, § 651, that negro D. 742. slaves could contract valid marriage in 6 Cheseldine v. Brewer, 1 Har. & McH. Massachusetts, the same, precisely, as free 1 52. white people; and it is difficult to assign ^ Denison v. Denison, 35 Md. 361, 379. any meaning to this Flora's Case, unless See post, § 420. 179 § 419 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III § 417. Conclusions as to our Law — (Reg. v. Millis). — Though considerable numbers of the foregoing cases are of dates subse- quent to The Queen v. Millis, there is not, the reader perceives, even a solitary American one wherein the doctrine of this English decision lias been accepted. There now remains no room for conjecture. Not hitherto having had, it never can have, any effect upon our American jurisprudence. Repudiated, except as bare authority, at home ; ^ decided in haste, by judges who had no knowledge of the very peculiar branch of jurisprudence to which it belonged ; determined in the way it was, instead of the reverse, by the intervention of an accident, — it never was entitled to any respect abroad, and it has received none. Again, ^ § 418. In Reason, — assuming that the English common law did, when our country was settled, render impossible a marriage without a priest, — was this impediment to matrimony adapted to our altered situation and circumstances ? If it was not, and so not received by us, then we fall back on the law of nature; whereby, as already seen,^ marriage is constituted by the mutual present consent of two competent persons, without added formali- ties. The doctrine contended for as of the common law, it should be remembered, is, that the celebrator must be "in holy orders;" and that, in the language of the Lord Chancellor in The Queen v. Millis, " holy orders, according to the law of England, are orders conferred by Episcopal ordination. This was the law of the Catholic Church in England, and the same law continued after tlie Reformation, as the law of the Episcopal reformed Church." It should be remembered, too, that a minister of any other church than of England or Rome was, in the eye of the law, a mere lay- man, and his presence of no avail.^ Now, — § 419. Absurd Consequence. — Let US imagine a company of Dissenters from the churches both of Rome and of England, flee- ing to these western wilds to escape what they deemed oppression and moral contagion from both of those churches, yet importing an ecclesiastic of the hated order, and paying him tithes, simply to make liim an invited guest at their weddings ! * Though the American colonies were not all settled by such Dissenters, the 1 Ante, § 407. * See observations of 'Woodbury, J. in 2 Ante, § 385. Londonderry v. Chester, 2 N. H, 268, 278, 8 Reg. V. Millis, 10 CI. & F. 534, 861, 9 Am. D. 61. 906; Londonderry v. Chester, 2 N. H. 268,271, 9 Am. D. 61. 180 CHAP. SVI.] FORMAL SOLEMNIZATION. § 421 spirit of this suggestion applies to most of them. So applies also another suggestion, that the strange and monstrous cross-breed between a concubinage and a marriage, which the contract per verba de prcesenti is admitted by those who do not deem it a per- fect marriage to be,^ could find no favor with the pure morals and stern habits of the early settlers of this country ; therefore, since they could not treat it as a nullity, they would invest it with the entire completeness of marriage. Furthermore, the known im- possibility, in most of the colonies, of procuring the attendance of a person " in holy orders," would of itself, within a principle to be stated in another chapter,^ render the marriage good without his presence ; and marriages so contracted, being universal, would in time gain a prescriptive sanction, and thus the practice would grow into an American common law.'^ Further as to which, — § 420. Early Local Usage. — Though the Maryland case above stated* was decided contrary to what most of our courts would probably hold under the like facts, it well illustrates the sugges- tion of a local common law differing from the English. So also does the local usage in the New England and some other States, whereby a wife could convey her lands by a deed in which her husband joined, without the formality of levying a fine.^ " It probably originated," said Mr. Justice Story, " in the necessities of the country at the early period of its settlement, when fines and recoveries were little known ; or, if known, courts were rarely held, and understood little of the proper mode of proceeding." ^ In most of the colonies out of which our original States were formed, it would have been a trifling matter to levy a fine even in the early period, compared with procuring at a wedding the pres- ence of a priest in orders. In Maryland, a priest could at any time have been had ; yet even there, according to this Maryland decision, a usage rendering his presence unnecessary had ripened into law. A fortiori, therefore, it must have been so in the other colonies. Again, — §421. Priest in Orders. — It may well be questioned whether there ever was in this country a " priest in orders," within the true meaning of the supposed rule requiring his presence at mar- 1 Ante, § 395. ^ 1 Bishop Mar. Women, § 588 and 2 Post, § B73 and places referred to. note. ^ See also observations of the court in ^ Manchester v. Hough, 5 Mason, 67, Dumaresly v. Fishly, 3 A. K. Mar. 368. 69. * Ante, §416. 181 § 424 MiRRIAGE CONSTITUTED, NULLITIES. [BOOK III'. riages. In England there is a connection between Church and State, which we never had, and which makes a priest a sort of official person. Those who with us are termed priests have no other relations to the government than laymen ; and it is not apparent how their presence at marriages could have a civil effect greater than that of lay persons, or of Dissenting ministers of religion in England, which is there of no avail. As to — § 422. Early Local Legislation. — It was Competent for sucli leg- islation to change the unwritten rules. In determining whether a particular statute of the colony should be construed as having so operated, we should bear in mind that there must have been, between the legislation and the first coming of the emigrants, a time intervening when marriage without statutory help was pos- sible. At which time, by all opinions, the unwritten law required no formalities other than, as some deem, the mere presence of a priest. Therefore the question whether such legislation had made the formalities it prescribed essential to the validity of the mar- riage ^ must, in principle, depend on the doctrines to be explained under our next sub-title. IV. Sow Statutes providing Formalities are interpreted. § 423. Mandatory or Directory. — Statutes which prescribe the" way of doing a thing, yet are silent as to the effect of disobedi- ence, are either mandatory or directory. A doing contrary to a mandatory statute is void ; contrary to a directory one, good. And whether a provision shall be interpreted as of the one class or of the other will depend on its circumstances, particularly on the nature and equity of the case.^ Marriage existed before statutes ; it is of natural right ; it is favored by the law.^ Hence, in reason, any commands which a statute may give concerning Its solemni- zation should, if the form of words will permit, be interpreted as mere directions to the solemnizing officers* and to the parties, not rendering void what is done in disregard thereof. And so the courts hold. Consequently, — § 424. Doctrine defined — (Settled).- — After some doubts and 1 See ante, § 413, 414, 419. how an officer shall do a thing is direct- 2 Bishop Written Laws, § 254-256. ory. Holland v. Osgood, 8 Vt. 276, 280. 3 Ante, § 38, 46, 385 ; Meister v. Moore, And see Corliss v. Corliss, 8 Vt. 373, 96 U. S. 76. 390. ^ Commonly a statute which provides 182 CHAP. XVI.] FORMAL SOLEMNIZATION. § 426 uncertainties, yet with few or no adverse adjudications, it has become established in authority that a marriage good at the common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity. And not only does this rule apply to the enactment as a whole, but to the several parts of it ; so that if it declares the mar- riage void for non-compliance with a particular provision, it is good notwithstanding a failure to comply with any other pro- vision.^ To illustrate, — § 425. Preliminaries before Marriage. — If a statute simply or- dains the performance of specified acts before marriage, still a marriage without the doing of them is good.''* Even where Pres- byterian ministers were in New South Wales authorized to cele- brate marriage between Presbyterians, but not until by a writing in duplicate they had acknowledged themselves to be such, the Consistory Court of London held that a marriage was not void by reason of the parties not having executed this writing ; though, in fact, both were members, not of the Presbyterian Church, but of the English Episcopal.^ Within which principle also, — § 426. License. — -If a statute forbids solemnization without a license, still, in the absence of a clause of nullity, the marriage will be good though no license was had.* Or if it requires the 1 Catterall v. Sweetman, 1 Rob. Ec. D. 482 ; Cannon v. Alsbury, 1 A. K. Mar. 304; Stallwood v. Tredger, 2 Phillim. 76, 10 Am. D. 709; Parton u. Hervey, 1 287 ; Londonderry v. Chester, 2 N. H. 268, Gray, 119 ; White v. Lowe, 1 Redf. 376 ; 9 Am. D. 61 ; Pearson v. Howey, 6 Halst. Campbell v. Gullatt, 43 Ala. 57 ; Black- 12, 19, 20, opinion of Ford, J.; Rode- burn v. Crawfords, 3 Wal. 175; Peck i/. baugb V. Sanks, 2 Watts, 9, 11 ; Helffen- Peck, 12 R. I. 485, 34 Am. R. 702 ; An- stein V. Thomas, 5 Rawle, 209 ; S. v. Rob- drews v. Page, 3 Heisk. 653. And see bins, 6 Ire. 23, 44 Am. D. 64 ; Newbury v. S. v. Murphy, 6 Ala. 765, 41 Am. D. 79 ; Brunswick, 2 Vt. 151, 19 Am. D. 703; Northfield u. Plymouth, 20 Vt. 582. Lacon v. Higgins, 3 Stark. 178, D. & R. 2 xhe Waldegrave Peerage, 4 01. & F. N. P. 38; Dumaresly o. Fishly, 3 A. K. 649; Askew v. Dupree, 30 Ga. 173; Rex Mar. 368 ; Rex v. Birmingham, 8 B. & C. v. Birmingliam, 8 B. & C. 29. 29,34; Hargroves J). Thompson, 31 Missis. * Catterall v. Sweetman, 1 Rob. Ec. 211; Park «. Barron, 20 Ga. 702, 65 Am. 304. And see Catterall c. Catterall, 1 D. 641 ; Stevenson v. Gray, 17 B. Monr. Rob. Ec. 580. See also Chichester v. 193, 209 ; Ferrie o. The Public Adminis- Mure, 3 Swab. & T. 223, where this case, trator, 4 Bradf. 28 ; Dyer v. Brannock, 66 and the general doctrine here laid down. Mo. 391, 27 Am, R. 359 ; Dickerson v. are discussed. Brown, 49 Missis. 357, 370 ; Port v. Port, * Cannon v. Alsbury, 1 A. K. Mar. 76, 70 m. 484 ; Hutchins v. Kimmell, 31 Mich. 10 Am. D. 709 ; Holmes v. Holmes, 6 La. 126, 18 Am. R. 164; Meister y. Moore, 96 463, 26 Am. D. 482. See Johnson v. U. S. 76, 81. See Bashaw v. S. 1 Yerg. Johnson, 1 Coldw. 626; Greaves v. 177; Milford v. Worcester, 7 Mass. 48, Greaves, Law Rep. 2 P. & M. 423 ; Temple- 55 ; Holmes v. Holmes, 6 La. 463, 26 Am. ton v. Tyree, Law Rep. 2 P. & M. 420. 183 § 429 MABEIAGE CONSTITUTED, XULLITIES. [BOOK m. license to be taken out in a particular countv. a marriage under a license from another countv will not be invalid. •' In any view," said the learned judge, "these directory provisions, though pro- hibitorj and even penal with respect to the officers, have not been regarded as affecting the validity of a marriage otherwise legal." ^ Again, — § 427. Place of Solemnizatioii. — The first English Marriage Act, known as Lord Hardwicke's, ordained that, '• in all cases where banns shall have been published, the marriage shall be solemnized in one of the parish churches or chapels where such banns have been published, and in no other place whatsoever." Yet marriages elsewhere were adjudged good.^ § 428. Person solemnizing. — Where a statute gave to justices of the peace and ministers of the gospel authority to solemnize marriage, and provided penalties should they therein depart from certain directions it prescribed, then added in a separate sec- tion that, '"if any person not authorized and empowered to sol- emnize marriages by this act shall join any persons in marriage, whether with or without publishment, and be convicted thereof, . Dole, Crim. Law, § 373, 509, 555 ; 2 ib. § 218, 61 111. 307 ; Spearman v. Wilson, 44 Ga. 235, 422, 445 ; 2 Bishop Crim. Proced. 473; Stevens v. Hampton, 46 Mo. 404; § 244; Bishop Stat. Crimes, § 149, 222, Dail V. Moore, 51 Mo. 589 ; Drew r. Can- 237, 254, 585, 593, 598, 601-604, 606-613, ady, 1 Mass. 158; Deerfield <-. Arms, 20 651,663-665,666,673. Pick. 480, 32 Am. D. 228. 3 Pearson u. Howey, 6 Halst. 12. So * Beamish v. Beamish, 1 Jur N. s. pt. in New Hampshire, S. v, Kean, 10 N. H. 2, 455, and printed in full in the 2d and 347, 34 Am. D. 162. 3d eds. of the author's old Mar. & Div. 190 CHAP. XVI.J FORMAL SOLEMNIZATION. § 447 § 444. " stated and Ordained Minister." • — One ordained a gospel minister after the Baptist form, and em[)lo\'ed by two Baptist societies in the town of his residence to preach to them alter- nately, has been adjudged to be, within the statute, " a stated and ordained minister of the gospel," authorized to solemnize marriage. And it is the same of a Methodist preacher, ordained and after- ward settled in any town for two years, according to the usage of this denomination. 1 So, — § 445. Who a Minister — (" Cure of Souls "). — Any person, it seems, is a minister of the gospel, wlio is such according to the rules of the religious sect to which he belongs. And the words, " cure of souls," in the statute, do not require the minister to be an incumbent of a church living, or the pastor of any one or more congregations in particular ; but they do imply that he shall be something more than a mere preacher, and shall have the fac- ulty, according to the constitution of his church, to celebrate mat- rimony, and to some extent, at least, tlie power to administer the Christian sacraments, as acknowledged and held by his church.^ § 446. Minister de Facto. — It appears also that there may be a minister de facto, whose acts will be valid, though he is not such de jure? §447. Banns. — Where a marriage is required to be preceded by publication of banns, it must be in the true names of the par- ties, to be of any avail.* But where, on an indictment for polyg- amy, it became necessary to prove the marriage, the prisoner, who had written down the names for the publication of the banns, was not permitted to deny that these were the true names.^ Vari- 1 C. V. Spooner, 1 Pick. 235. And see, ^ Taylor v. S. 52 JILssi.s. 84. And see to the like effect, Kibbe v. Antram, 4 1 Bishop Crim. Law, § 464. Conn. 134. " Settled." — But a deacon * Cope u. Burt, 1 Hag. Con. 434, 438; of the Methodist Episcopal Church, ]i- Wakefield r. Wakefield, 1 Hag. Con. 394, censed to preach, and actually preaching 401 ; Fellowes ». Stewart, 2 Phillira. 238, as a travelling circuit preacher, upon a 240 ; Rex v. Billiugshurst, 3 M. & S. 250 ; circuit including the town in which he Wright r. Elwood, 1 Curt. Ec. 662 ; Fen- dwells, is not "settled in the work of the dall v. Goldsmid, 2 P. D. 263; Rex u. ministry" within the Marriage Act of Con- Tibshelf, 1 B. & Ad. 190; Tongue c. necticut. Stat. 105, e. 1, § 2 (ed. 1808). Tongue, 1 Moore P. C. 90, and many Goshen v. Stonington, 4 Conn, 209, 10 other cases. Am. D. 121. 5 Rex v. Edwards, Russ. & Ry. 283, 2 S. V. Bray, 13 Ire. 289. As to New 284. See Rex j-. Hind, Russ. & Ry. 253. Hampshire, see S. v. Keau, 10 N. H. 347, But see Midgeley v. Wood, 4 Swab. & T. 34 Am. D, 162 ; as to Connecticut, Roberts 267. V. The State Treasurer, 2 Root, 381 ; as to Arkansas, S. v. Willis, 4 Eng. 196. 191 § 449 MARRIAGE CONSTITDTED, NULLITIES. [BOOK III. ous other questions have in England arisen on marriage by banns, — not of much consequence with us.^ § 448. License. — Marriage by license, in England, differs from that by publication of banns. It is not, at least not always, void, though the license is taken out under a false name.^ Where the county clerk was by statute to sign the licenses, and he and the clerk of the County Court was one and the same person, a license signed by him as of the latter capacity was adjudged valid.^ No further elucidations of the various questions connected with this sort of marriage seem required.* § 449. The Doctrine of this Chapter restated. Any required formal solemnization of marriage is an impedi- ment to entering into it ; therefore, since marriage is favored in law, statutory provisions establishing forms are to be strictly in- terpreted, not being encouraged by the courts. In the absence of any statute or local usage controlling the question, only the con- sent treated of in our last two chapters is indispensable to the constitution of marriage ; and legislation commanding formalities, even punishing those who celebrate marriage contrary to its pro- visions, or punishing the parties themselves, will not render a marriage had in disregard of it void, unless the statute expressly or by necessary implication declares this consequence. But it is otherwise of a statute which authorizes the intermarriage of par- ties before incompetent; for in this case there is no common law to fall back upon. And such parties must strictly conform to the legislative direction to render their marriage valid. In the ordinary case, wherein the common law may be relied on except as excluded by the statute, only the particular things which the statute declares to be nullifying if omitted need be observed, — all the rest being directory, and non-compliance immaterial. 1 TempletoQ o. Tyree, Law Rep. 2 P. 3 Tucker v. P. 122 111. 583. & M. 420; Holmes v. Simmons, Law Rep. ^ Ante, § 426; Ely v. Gammel, 52 Ala. 1 P. &M. 523; Gompertz V. Kensit, Law 584; Campbell v. Beck, 50 111. 171; Rep. 13 Eq. 369. Greaves v. Greaves, Law Rep. 2 P. & M. ^ Lane v. Goodwin, 3 Gale & D. 610, 423; Reg. v. Perry, 3 Ellis & E. 640; 4 Q. B. 361 ; Dormer v. Williams, 1 Curt. Bevan v. McMahon, 2 Swab. & T. 230. Ec. 870. 192 CHAP. XVII.] FRAUD, ERROR, DURESS. S 452 CHAPTER XVII. FRAUD, ERROR, DURESS. §450,451. Introduction. 452-528. Fraud. 529-537. Error. 538-544. Duress. 545-549. Common to All. 550. Doctrine of Chapter restated. § 450. Want of Consent, — the same which is treated of in the last three chapters, is the ground of principle on which the doc- trine of this chapter proceeds. The three impediments to con- sent — Fraud, Error, and Duress — are so similar that they are best elucidated in one cliapter, yet so diverse that their treatment must be in part separate. Thus, — § 451. How Chapter divided. — We shall consider, I. Fraud ; II. Error ; III. Duress ; IV. Doctrines Common to the Three Im- pediments. I. Fraud. § 452. Difficulties of Subject — 'Why. — This topic is probably the most difficult of all within these volumes. Inherently it is embarrassing, the adjudged cases upon it are not numerous, and its analogies are confusing. Such judicial utterances upon it as we have are largely conflicting and otherwise muddled. So that, should an autlior discussing it present all the views, and those only, which have occurred to the judges and found embodiment in their utterances, he would lead his readers into a labyrinth of contradictory and chaotic things, out of which the practi- tioner could not readily discover a path. And still, if we listen attentively for the voice of legal reason, not loud, yet sufficiently distinct, we shall find the chief embarrassments of the subject vanishing. VOL. I. — 13 193 § 458 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 453 Procedure. — The pleading, evidence, and practice, re- lating to this subject, are not for this chapter, but are explained in the second volume. § 454. Distinguished from Promise to marry. — We have already seen the effect of fraud in the executory agreement to marry.^ But it differs by a very wide margin from the fraud which will invalidate an executed^ marriage. Both natural reason and the reasonings of the law distinguish between an impediment which will justify a refusal to marry and one upon which a divorce can properly be founded ; a small thing may suffice for the former, for the latter it should be weighty and grave.^ Again, — § 455. Distinguished from Fraud about Property. — If one has cheated another through a fraudulent contract of the ordinary sort,* whether executed or not, only individual property inter- ests are injured. No new status, the abrogation whereof would be disturbing to the community, has been established. Unborn children do not cry out from the mother's womb, demanding that they may not be bastardized, lose a father, and know only a disgraced mother. Hence the fraud which would vitiate the ordi- nary contract, even the executed one, should not, and in actual adjudication it does not, of necessity suffice to nullify marriage. Hence also, — § 456. Distinguished ■whether before or after Consummation. — Though marriage becomes valid before consummation,^ still the non-consummated status, wherein unborn children and the com- munity have not yet acquired the specially grave and weighty interests, is very different from the consummated one. So that no principle appears — not now inquiring how the authorities are — which would justify a court in refusing to pronounce void the non-consummated marriage for ordinary fraud. Bearing in mind these distinctions, — § 457. Order of Subject. — We shall proceed with various divi- sions of the larger subject, to be indicated by italic sub-heads, as follows : — § 458. The G-eneral Doctrine : — Defined. — Since without mutual consent there can be no mar- riage, if a consent in form was brought about by such fraud, error, 1 Ante, § 224. * Bishop Con. § 637-692. 2 Ante, § 10, 11. s Ante, § 315. * See, for iUustration, ante, § 56. 194 CHAP. XVII.J FRAUD, ERROR, DURESS. | 460 or duress as renders it equivalent to no consent, the transaction stops short of perfected matrimony.^ In searching for tlie limits of this doctrine we must consider the — § 459. Special Nature of Marriage — (Character — Fortune, &c.). — In that contract of marriage which forms tlie gateway to the mar- riage status, the parties take each other for better, for worse,^ for richer, for poorer, to cherish each other in sickness and in health ; consequently a mistake, whether resulting from accident, or, in general, from fraudulent practices, in respect to the char- acter, fortune, health, or the like, does not render void what is done.^ So are all the authorities, but the reasonings to the con- clusion present some differences. On the one side, the quali- ties just mentioned are said to be accidental, not going to the essentials of the relation.* Lord Stowell, on the other side, after remarking that error about the family or fortune of an individual, though produced by disingenuous representations, does not affect the validity of the marriage, adds: "A man who means to act upon such representations should verify them by his own in- quiries. The law presumes that he uses due caution in a matter in which his happiness for life is so materially involved, and it makes no provision for the relief of a blind credulity, however it may have been produced."^ Now, — § 460. Further of the Reasoning. — Of these two reasons, the former appears to be the better ; namely, that the nature of mar- riage forbids its validity to rest on any stipulations concerning these accidental qualities.® Should the man, in words, agree with the woman to be her husband only on condition of her being so rich, so virtuous, so wise, so healthy, of such a standing in so- 1 2 Kent Com. 76 ; Harford v. Morris, ^ Evans v. Evans, 1 Hag. Con. 35, 4 2 Hag. Con. 423, 4 Eng. Ec. 575 ; Ports- Eng. Ec. 310, 349 ; Scroggins u. Scrog- mouth V. Portsmouth, I Hag. Ec. 355, 3 gins, 3 Dev. 535, 545. Eng. Ec. 154 ; Jolly v. McGregor, 3 W^ils. 3 Ewing v. Wheatley, 2 Hag. Con. 175, &S. 85; Burtis v. Burtis, Hopkins, 557, 182, 183; Wakefield o. Mackay, cited, 1 14 Am. D. 563 ; Scott v. Shufeldt, 5 Paige, Phillim. 134, 137, note ; Clowes v. Jones, 43 ; Perry v. Perry, 2 Paige, 501 ; Ferlat 3 Curt. Ec. 185, 191 ; 1 Eras. Dom. Rel. u.Gojon, Hopkins, 478, 14 Am. D. 554; 230; Ruth. Inst. b. 1, c. 15, § 11, 12; 2 Clark ... Field, 13 Vt. 460; Hull v. Hull, Kent Com. 77 ; Wier v. Still, 31 Iowa, 15 Jur. 710, 5 Eng. L. & Eq. 589 ; Res- 107 ; Carris i: Carris, 9 C. E. Green, 516 ; pnblica v. Hevice, 3 Wheeler Crim. Cas. post, § 523. See Meyer v. Meyer, 49 How. 505; Dalrymple v. Dalrymple)^ 2 Hag. Pr. 311. Con. 54, 104, 4 Eng. Ec. 485 ; Keyes v. * I Eras. Dom. Rel. 230. Keyes, 2 Post. N. H. 553 ; Robertson v. ' Wakefield v. Mackay, supra. Cole, 12 Tex. 356 ; Sloau v. Kane, 10 How. 6 page on Div. 158. Pr. 66. 196 § 461 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. ciety ; yet, should he then celebrate the nuptials on her repre- senting herself to possess those qualities, while in truth she did not ; still in the act of marriage he says to her, in effect and in law, " I take you to be my wife whether you have the qualities or not, and whether you have deceived me or not." In other words, he waives the condition. To carry such a condition into the marital relation would violate its spirit and purpose, and be con- trary to good morals. The objects of marriage, rightly under- stood, transcend all considerations of the kind ; and if the pur- chaser of a jewel could not annul the bargain by reason of the seller sending it to him in a plain envelope of paper, instead of a figured one, as was contemplated, surely the husband should not be permitted to repudiate his marriage, though he should discover an absence of some secondary thing to which he had given his affections, instead of placing them where he had promised. Herein the law regulating the executed contract of present marriage differs from that governing the agreement of future marriage ; ^ for, in the latter, the parties to it so far stipu- late concerning the accidentals as to enable either to avoid the contract where any fraud as to them has been discovered. '^ To hold otherwise of fraud in present marriage would degrade a high and holy relation to the level of things of mere mercantile consideration. § 461. Fraud tvithout Consummation of Marriage : — In General. — The doctrine of reason has already been stated in general terms.^ And while we have not the means for draw- ing its precise limits, we may with reasonable safety deem that when the fraud is discovered and the marriage repudiated before consummation, the courts should more readily interfere with their decree of nullity than when the discovery and repudiation are afterward. Surely the mere pronouncing of the parties husband and wife by an officiating person cannot make that a contract whicli in its nature is not such, — the will having been overcome by fraudulent pretences, and not really assenting. If the law took cognizance of marriage in respect to some mysterious re- ligious effects produced by the benediction of a priest, the result 1 Ante, §454. Mortlock, Holt N. P. 151; FoulVes v. '' See Addison on Contracts, 580-585 ; Sellway, 3 Esp. 236 ; Bench v. Merrick, 1 Chitty on Contracts, 538-541 ; Wharton Car. & K. 463. V. Lewis, 1 Car. & P. 529; Baddeley v. ^ Ante, § 316, 456. 196 CHAP. XVII.j FRAUD, ERROR, DURESS. § 463 might be legally otherwise. But in this country at least, probably in England also, it takes no such cognizance. And while in most of our States a marriage may be good without any ceremony either religious or civil, requiring the presence of any official per- son, there is believed to be no State in which a mere civic per- sonage, as a justice of the peace, is not just as competent to perform the ceremony as an ecclesiastic. We have, in truth, no ecclesiastical personages in this country in any sense recognized by the law ; because we have not now, neither did we ever have, an established religion. § 462. In Authority, — we have perhaps no specific rulings of a bench of judges upon this particular question, even as the doc- trine appears in its less exact terms. There are cases in which the distinction between marriage consummated and not consum- mated would have been important, but it was not suggested by counsel, and it did not occur to the unaided thoughts of the judges. Thus, before the Iowa Court, there was a case of gross fraud, sucli as would have annulled any other contract, wherein the woman took the alarm before copula. But the attention of the court was not directed to the element of non-consummation, and the case went against her on the ordinary reasoning, as ap- plied to marriage consummated. ^ The books of reports, as to other subjects, are full of cases like this, which are regarded no otherwise than as if the unthought-of fact did not exist.^ We resort, then, to the principles — the reasoning — of the law, which foundation is as good to rest a proposition on as any other. In- deed, our tribunals are in the constant practice of basing decisions on those of modern England and of sister States, whose courts have no authority over them, and whose judges as to them are only learned lawyers. And still a reason of the law, wliich even an unread babe is permitted to draw from the fountain of our jurisprudence if he can, is truly more authoritative over any court than a thousand decisions from sister States and from England, pronounced without reason.^ As to — § 463. What Fraud — will suffice in these cases. We have seen the distinction between a mutual promise to intermarry in tlie future, and one of present marriage, in respect of the thing 1 Wier V. Still, 31 Iowa, 107. Con. Law, § 304, note, referring to ' For an illustration, see Bishop Non- Joannes u. Bennett, 5 Allen, 169. » Ante, § 130. 197 § 467 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. agreed.^ It results that the fraud which will vitiate the one can- not be identical with that required in the other. Yet probably some of the decisions upon the fraud which will serve as a defence to the action for a breach of marriage promise may furnish anal- ogies for particular cases within our present elucidations. For example, Swinburne says, that one of the causes for which spou- sals may be dissolved is " whenas the party doth, after the con- tract made, commit fornication ; for the innocent party is at liberty and may dissolve the contract." ^ And such is the pres- ent doctrine of the English and American courts as to the ordi- nary agreement to marry ; or if the discovery was made after the promise, the result is the same, whether the immoral conduct occurred before or after.^ Hence, — § 464. Antenuptial Incontinence. — Applying this reasoning, we may fairly well reach the conclusion that antenuptial inconti- nence of a sort which would not justify a decree of nullity if discovered after consummation, may, where the discovery is be- fore copula, though after solemnization, suffice. And — § 465. Knowledge of Fraud. — In analogy to the law of fraud in other contracts, one could not set up a fraud of which he had knowledge when the marriage ceremony was performed. Indeed, in such a case there is no fraud.* § 466. Further of Cases. — The books have various cases, be- sides the one before mentioned, in which, according to the facts appearing, there had been no consummation of the marriage wlien the suit was brought to set it aside for the fraud. But as this particular circumstance seems not in most of them to have im- pressed itself on the minds of the judges, or generally to have been adverted to by them, the writer deems it not best to separate these cases from the others to be considered in subsequent sec- tions of this chapter.^ § 467. Assuming, during the rest of these discussions, that 1 Ante, § 454, 459, 460. Ala. 379 ; Denslow v. Van Horn, 16 Iowa, 2 Swinb. Spousals, 2d ed. 237. 476 ; Butler u. Eschleman, 18 111. 44 ; ^ Young V. Murphy, 3 Bing. N. C. 54, C'apehart v. Carradine, 4 Strob. 42 ; Good- 3 Scott, 379, 2 Hodges, 144; Irving u. all y. Thurman, 1 Head. 209. Greenwood, 1 Car. & P. 350; Toote u. * Butler v. Eschlemau, 18 El. 44; Hayne, 1 Car. & P. 545 ; Woodard o. Berry v. Bakeman, 44 Me. 164. Bellamy, 2 Root, 354 ; Willard v. Stone, ^ Yet the reader may consult Lyndon 7 Cow. 22, 17 Am. D. 496 ; Berry v. Bake- v. Lyndon, 69 111. 43, where there was no man, 44 Me. 164 ; Bell v. Eaton, 28 Ind. consummation and the marriage was de- 468, 92 Am. D. 329 ; Espy u. Jones, 37 dared void. 198 CHAP. XVII.] FRAUD, ERROR, DURESS. § 470 there has been consummation, or that the want of it is not mate- rial, let us proceed to — Consfiracy bringing about Marriage : — May create Nullity. — Conspiracy is an adequate fraud in some circumstances, not universally. There are niceties and obscuri- ties as to the particulars of the doctrine. Thus, — § 468. Party not Conspirator. — There appears to be authority, with some ground of reason, for saying that if the party against whom the marriage is sought to be set aside was not one of the conspirators, — as where a parish, to change the settlement of a female pauper to another parish, by fraudulent contrivances pro- cures her marriage, — the conspiracy will not make it invalid.^ Yet, assuming the rule to be so in this particular instance, and in some others, it is not universal. Thus, — §469. Wrong Person. — If, as the result of a conspiracy, one should in form marry another who was disguised, and not the individual meant, the marriage plainly would be invalid within the doctrine of our next sub-title.^ Again, — § 470. Conspirators viewed as Agents. — On a principle analo- gous to estoppel, which we have seen to be sometimes admissible in marriage law,^ the party who, without actually meaning ill, avails himself of the fraudulent conduct of conspirators, however it is unknown to him, whereby the innocent other party is en- trapped into a consent which else would have been withheld, does, in law, to some extent if not fully, accept them as his agents and make their fraud his own. So, without qualification, it is in ordinary contracts, therefore equally in reason it is more or less so in the law of marriage ; the rule in ordinary contracts being that when a person not authorized acts for another as his agent, and therein commits a fraud, if the other accepts however innocently a benefit under the fraudulent contract, he is respon- sible for the fraud.* And Lord Stowell, speaking of marriage I Rex V. Birmingham, 8 B. & C. 29, 2 ,;. Boody, 1 Curt. C. C. 206. If one sup- Man. & R. 230; Rex v. Tarant, 1 Bott P. plies another with the means of perpe- L. 338, 2 Bott P. L. 68. See post, § 472. trating a fraud in his name against a par- ^ Post, § 533. ticular third person, and it is perpetrated ' Ante, § 74, 334. by the means, but against a different in- * Bishop Con. § 1112, 1114. By tak- dividual, he is liable. Wilson w. Green, 25 ing a benefit from the act of the wrong- Vt. 450, 60 Am. D. 279. Fraud between doer, he necessarily adopts it entire, includ- the parties to a suit and a third person, ing the fraud, if it is fraudulent. Mason to defeat the rights of creditors of the V. Crosby, 1 Woodb. & M. 342, 353, 358, latter, cannot be pleaded in bar to the and the cases there cited. But see Fisher suit. Moore v. Thompson, 6 Misso. 353. 199 §470 MARRIAGE CONSTITUTED, NULLITIES. [book III. and apparently referring to cases in which the party proceeded against was not one of the conspirators, observed : " I will not lay it down that in no possible case can a marriage be set aside on the ground of having been effected by a conspiracy. Suppose three or four persons were to combine to effect such a purpose by intoxicating another, and marrying him in that perverted state of mind, this court would not hesitate to annul a marriage on clear proof of such a cause, connected with such an effect. Not many other cases occur to me in which the co-operation of other per- sons to produce a marriage can be so considered, if the party was not in a state of disability, natural or artificial, which created a want of reason or volition amounting to an incapacity to pon- sent." ^ In the applications of this rule, there may be distinc- tions suggested by the varying facts of cases. Still, — See further, as to the distinctiou between fraud practised by one of the parties, and by a stranger. Clute v. Ktch, 25 Barb. 428 ; Killiuger v. Reidenhauer, 6 S. & R. 531 ; Sumner v. Murphy, 2 Hill, S. C. 488, 27 Am. D. 397 ; Reichart v. Castator, 5 Binn. 109, 6 Am. D. 402; Osborne v. Moss, 7 Johns. 161, 5 Am. D. 252 ; Findley V. Cooley, 1 Blackf. 262; Hendricks v. Mount, 2 Southard, 738, 8 Am. D. 623 ; Harry v. Graham, 1 Dev. & Bat. 76, 27 Am. D. 226 ; Swanzy v. Hunt, 2 Nott & McC. 211. In New York it was laid down that a principal, who undertakes to enforce a contract, is bound by unautho- rized representations made by his agent in procuring it, although the latter did not know whether they were true or false. And Comstock, C. J. referring to the facts of the particular case, said : " There is no evidence that the defendant autho- rized or knew of the alleged fraud com- mitted by his agent Davis, in negotiating the exchange of lands. Nevertheless, he cannot enjoy the fruits of the bargain without adopting all the instrumentali- ties employed by the agent in bringing it to a consummation. If an agent defrauds the person with whom he is dealing, the principal, not having authorized or par- ticipated in the wrong, may no doubt re- scind, when he discovers the fraud, on the terms of rnaking complete restitution. But so long as he retains the benefits of the dealing, he cannot claim immunity on 200 the ground that the fraud was committed by his agent and not by himself." Bennett t. Judson, 21 N. Y. 238, 239. 1 SuUivan v. Sullivan, 2 Hag. Con. 238, 246. But further on, in the same case, p. 247, this learned judge observed : " Suppose a young man of sixteen, ,in the first bloom of youth, the representative' of a noble family, and the inheritor of a splendid fortune ; suppose that he is in- duced, by persons connected with a female in all respects unworthy of such an al- liance, to contract a marriage with her, after due publication of banns in a parish church, to which both are strangers, — I say the strongest case you could estab- lish, of the most deliberate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune, of habits of life, and even of age itself, would not enable this court to release him from chains which, though forged by others, he had riveted on himself. If he is capa- ble of consent, and has consented, the law does not ask how the consent has been induced. His own consent, however pro- cured, is his own act, and he must impute all the consequences resulting from it, either to himself or to others whose happi- ness he ought to have consulted, to his own responsibility for that consent. The law looks no further back." See also, on this subject, Rex v. Minshull, 1 Nev. & M. 277. CHAP. XTII.] FRAUD, ERROR, DURESS. § 472 § 471. In Principle, — we may probably distinguish as follows : When the marriage is the voluntary act of the parties to it, pro- ceeding from voluntary choice, though at the same time deceitful practices by third persons led them to this choice, neither of them being cognizant of the fraud, it is good.^ But if one of them was cognizant of the fraud, and so voluntarily availed himself of it, whether he was a party to the originating of it or not, it should be deemed his fraud ; and if sufficient in degree and kind should entitle the other party to have the marriage set aside. Beyond this, there is no very wide ground in the marriage law for binding one to the consequences of the unknov/n and not participated in fraud of third persons, — tliis being general doctrine, doubtless subject to the occasional control of special facts. Further to explain, — § 472. Illustrative Case. — These distinctions enable us to see how the following case was correctly decided ; while, if tlie de- fendant had not been cognizant of the fraud, the result would have been the other way ; unless, indeed, the duress alleged, or want of mental capacity in the plaintiff, had been established to the satisfaction of the court. It was a suit by a woman in Ver- mont to have her marriage declared void ; and the opinion of the court,' by Redfield, C. J., granting her prayer, sufficiently sets out the facts. " We are satisfied," he said, " that the form of mar- riage was brought about between these parties chiefly through the instrumentality of certain inhabitants of Moretown, who had charge of maintaining the town's poor, for the purpose of chang- ing the settlement of the petitioner ; and that, to effect this, they promised Wyethe [the husband] $100, and paid him $60 ; that his purpose was, not to contract in good faith a marriage, but to get money and revenge an imaginary grievance against Middle- sex, and abandon the petitioner, which he did in about three weeks. She is a cripple, feeble both in body and mind, and was wholly at the disposal of those who had her in charge. It is dif- ficult to lay down any general rule in regard to the precise char- acter of fraud which will render null a marriage contract. But we are reluctant to say that such a transaction as the present is to receive the countenance of the courts of the State. It would, we think, be of evil example. The transaction possesses no one feature of a marriage contract but the ceremony. The cohabita- 1 Ante, § 469, last note. 201 § 473 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. tioii, SO long as it continued, seems to have been, on the part of the petitioner, the result of the general imposition ; and on the part of the defendant, a part of the attempted villany. A decree of nullity, if it have no other good effect (and as to the parties it seems to be of no great importance, both being virtual paupers), will deprive the conspirators of the wages of their iniquity, and be of good example to others. We are not satisfied there was any such duress in the case as to justify a decree of nullity. But one of the chief actors testifies that he told the petitioner tlie laws were so altered that the town authority said they had a right to marry paupers to whom they saw fit ; and the petitioner testifies that she believed it, and supposed that if she refused to submit to the marriage she should be left to starve. It is impos- sible to know how much such badinage might have influenced so simple a creature in the outset ; but we are not satisfied she finally acted under the delusion, and still she might have done. Petition granted." ^ It may be material further to consider that this defendant never intended real matrimony, though he went through the form of a marriage ; and that, therefore, principles explained in a preceding chapter concerning marriage formalities where the intent to marry does not exist,^ operate in conjunction with the doctrine of fraud treated of here. § 473. The Parties conspiring against Third Persons. — If the conspiracy is between the man and woman themselves to injure by their intermarrying third persons in property interests, the marriage is not therefore invalid, even as against the latter. Be- ing agreeable to the parties, from whatever motives proceeding, others can neither interfere with it nor avert its collateral conse- quences. To illustrate : a widow had an estate terminable with her widowhood, and it was levied on by her creditors. Thereupon, to defeat the levy, and cause the estate to vest immediately in her children, she married a poor drunlien man, with whom she neitlier intended to nor did cohabit ; and the court held that the creditors could object neither to the marriage nor to its conse- quences. Said McKinney, J. : " If a marriage may be annulled for fraud, it must be such fraud as operates upon one or otlier of tlie immediate parties to the contract, and has the legal effect of vitiating the contract between the parties, ab initio. But as re- spects strangers, fraud cannot be predicated of a contract which 1 Barnes v. Wyethe, 28 Vt. 41. 2 Ante, § 327 et s,eq. 202 CHAP. XVII.J FRAUD, ERROR, DURESS. § 475 the immediate pa]-ties tliereto may lawfully enter into, which no principle of municipal law forbids, or can restrain the consumma- tion of." ^ Still, in reason, not trenching on the general doctrine thus laid down, if neither the man nor the woman meant ever to cohabit as husband and wife, or have any sort of marital inter- course, or change in any degree their social and mutual relations, but went through witli tlie formalities simply to serve a collateral purpose, there was no marriage, as explained in a preceding cbap- tcr.2 But perhaps even this view miglit not justify a suit lilie the above, wliich was a bill in equity by creditors for the setting aside of the marriage.^ § 474. Effect of Particular Statutes on the Question of Fraud : — General. — There are in nearly all our States statutes on this subject of fraud in marriage. But the effect of most of them is simply to authorize some court to pronounce the fraudulent mar- riage void, within principles of interpretation already explained.* For such statutes are to be treated, when possible, as merely jurisdictional, pointing out the court in which the proceeding for nullity may be liad, but not changing the unwritten legal doc- trine. At the same time, while we should thus follow tlie princi- ples ^ of our unwritten law, a court might, considering the general course of public sentiment, the other parts of our present law of marriage in connection with this, and the progress of this depart- ment of our jurisprudence, interpose witla its decree tliough it might doubt, or more than doubt, whether an English ecclesias- tical tribunal would, at the time of the settlement of this coun- try, have rendered the lilce relief under lilce facts.® Among the terms wliicli have thus found exposition is — § 475. " Fraudulent Contract." — This is the term in a few of our States. A just construction would seem to make it juris- dictional only, leaving the nature and extent of tlie fraud to be ascertained from the unwritten law. The Connecticut Court, so regarding it, said : " The phrase fraudulent contract, in common parlance, admits of great latitude of construction, and will in- clude all those deceptive arts to which the sexes too frequently 1 McKinney v. Clarke, 2 Swan, Tenn. « Ante, § 165, 166. 321,325, 58 Am. D. 59. ^ Ante, § 130. 2 Ante, § 327-330. ^ And see Reynolds v. ReynoldSj 3 Al- 3 And see MounthoUy u. Andover, 11 len, 605. Vt. 226, 34 Am. D. 685. 203 § 476 MARRIAGE CONSTITUTEDJ NULLITIES. [BOOK III. have recourse, with a view to obtain what they consider an advan- tageous marriage connection ; by setting off their persons, char- acters, tempers, circumstances, and connections in a too favorable light ; or by professions of ardent affection, which they either may not feel or not in a degree equal to what they profess. These arts, though they meet with various degrees of indulgence accord- ing to circumstances, are still inconsistent with truth and sin- cerity, and may be and often are productive of serious mischief ; they partake of the nature of fraud, and a marriage grounded on them is, in a sense, a. fraudulent contract. If the phrase be taken in this large sense, the statute would degrade the marriage con- tract, which in its original design and institution was to continue indissoluble during the joint lives of the correlates, and which is a main pillar on which society itself is founded, to a level with the most trifling bargains. The legislature can never be intended to do this." So the court, declining to give this con- struction to the statute, held that it meant such fraud as the books of the law had ah'eady recognized as invalidating marriage. And — § 476. Marrying with Intent to desert. — Under the facts of this case, the court refused the decree of nullity prayed. They were, that the plaintiff, being with child as she claimed by the defendant, had procured his arrest under a bastardy process ; whereupon he, for the sole purpose of obtaining his discharge therefrom,! married her with the intent immediately to desert her, which he did.^ Still, — 1 Post, § 543, 544. being contracted in fraudem legis, and de- 2 Benton i\ Benton, 1 Day, 111, 113, crees a separation a vinculo matrimonii." 114. Further of this Case — Nature Therefore, on the ground of fraud, the of the Fraud — Impotence — Consan- Connecticut courts have taken j urisdiction gulnity. — While so much of the Ian- to grant divorces for impotence. Ferris guage of the court as is quoted in the v. Ferris, 8 Conn. 166. But they appear text is doubtless a correct exposition of to overlook entirely the class of frauds the law, some further observations from treated of in this chapter. Now, it is not the learned judge are plainly erroneous, easy to see how fraud is involved in a He said: "TheTphrase fraudulent contract, marriage within the prohibited degrees as applied to the subject of marriage and of consanguinity. Impotence may be re- divorce, in the books, has obtained an ap- garded as a species of fraud in law; yet, propriate and technical meaning ; and is by the better doctrine, courts of equity, taken to imply a cause of divorce which while they will set aside marriages pro- existed previous to the marriage, and such cured by fraud where there is no other a one as rendered the marriage unlawful competent jurisdiction, will not on this ab initio; as, consanguinity, corporal imbe- ground divorce parties for impotence. rilitt/, or the like; in which case the law Burtis v. Burtis, Hopkins, 557, 14 Am. P. looks upon the marriage as null and void, 563 ; Perry v. Perry, 2 Paige, 501. As to 204 CHAP. XVII.J FRAUD, EEKOR, DURESS. §479 § 477. Non-consummation. — In reason, this is a case in which the element of non-consummation,^ should it be taken into the account, might well lead to the contrary result. Moreover, there may be a question whether the intent to marry existed here, ren- dering tiie marriage complete, within the expositions of a pre- ceding chapter.^ § 478. " Fraud," simply. — Prom the foregoing exposition of the term " fraudulent contract " it results, a fortiori, that if the stat- ute simply authorizes the court to decree a nullity or a "divorce" when the applicant's consent to the marriage was obtained by '•fraud," — the ordinary form of the statutory provision, — the fraud of the unwritten law is meant. As more nearly qualifying the common-law rules, we have, in a few of the States, enactments relating to — § 479. Antenuptial Incontinence and Pregnancy : — Aside from legislative intervention, — Concealed Lewdness — (Marrying Strumpet). — If a woman has Indiana, see Tefft v. Tefft, 35 Ind. 44. On this question, Judge Reeve, also of Connecticut, observed : " Certainly, if nothing more was meant by the term ' fraudulent contract ' [in the statute] than imbecility, it is a very awkward ex- pression to convey that precise, definite iilea which is affixed to the terra ' imbe- cility.' If the legislature meant to convey the same idea by the term which it or- dinarily imports, I apprehend it was a very natural provision. If it be founded in justice that the contracts which re- spect ordinary matters should be treated as void when obtained by fraudulent prac- tices, why, then, should a contract the most important that can be entered into be deemed inviolable, when obtained by such fraudulent practices f A man, by the foulest fraud, gets possession of the property of his neighbor. A contract thus basely obtained is not only void, hut in many instauces the obtaining of it is a felony. The common-sense of man- kind must revolt at the idea that when a man by the same abominable fraud has obtained the person of an amiable woman and her property, the law should protect such contract, and give it the same effi- cacy as if fairly obtained. The truth is, that a contract which is obtained by fraud is, in point of law, no contract. The fraud blots out of existence whatever semblance of a contract there might have been. A marriage procured without a contract can never be deemed valid. There is no more reason for sanctioning a, marriage pro- cured by fraud than one procured by force or violence. The consent is as to- tally wanting, in view of the hnv, in the former as in the latter case. The true point of light in which this ought to be viewed, I apprehend, is that the marriage was void ab initio ; but it is necessary to have a divorce by the court, since the marriage has been celebrated, that all concerned may be apprised that such mar- riage has no effect. Upon the same prin- ciple that chancery decrees contracts un- fairly obtained void, all the apprehension that is created in the minds of conscien- tious men, of the illegality of separating husband and wife, is dissipated. If this view be correct, they never were husband and wife, one essential ingredient to tlie contract being wanting ; namely, consent." Reeve ])om. Rel. 206. But this exposi- tion appears not to have convinced the tribunal of final resort in that State. Guilford v. Oxford, 9 Conn. 321, 327. 1 Ante, § 456, 461-466. 2 Ante, § 327-339. 205 § 480 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. been defiled, even if she is a common prostitute, yet represents herself to be a virgin, still a marriage "is good between her and a man who accepts her on his faith in her false pretension.^ This proposition, while doubtless correct throughout, does not rest on a very firm basis of authority in this country and England, as concerns marriage with a strumpet ; though, to this extent, it is well settled in Scotland, and one cannot easily read the English books without being convinced that it is the doctrine of the Eng- lish courts also.2 Looking more minutely, — § 480. Further as to Marrying Strumpet — (Ayliffe'a " Parer- gon"). — The English dicta to this, for there appears to be no decided case, seem all to have come down from Ayliffe, who states the doctrine in terms not quite conclusive in themselves, and further weakened by the fact that he is seldom to be re- lied upon to sustain, alone and uncorroborated, a doubtful propo- sition.^ His " Parergon Juris Canonici Anglicani" is made up very much of the disquisitions of the Roman canonists, which had no binding force in England. It has been strongly urged against this doctrine, that chastity cannot be discovered before marriage, while every other personal quality can. Mr. Page sup- poses, that, under the statute of Ohio, the courts would set aside a marriage of this sort ; but he rests his opinion solely on the reason of the thing, not on authority.* On principle, however, it would seem, that, if a Avoman has been a common prostitute, and has reformed, yet she conceals by artifice her former misconduct, the marriage should be good. This indeed follows from the well- settled doctrine that antenuptial incontinence is no ground for divorce. Otlierwise one of strong passions, led astray by them, could have no hope of reform ; but the law should encourage vir- tue.^ So the law should presume, from the fact of marriage, that the woman had abandoned what was thereby rendered doubly un- lawful. In this country, where divorces a vinculo are granted for adultery, it is of little consequence whether the marriage of an unreformed prostitute, to a person whom she deceives as to 1 Rogers Ec. "Law, 2d ed. 644 ; 1 Fras. Graves, 3 Curt. Ec. 235, 7 Eng. Ec. 425, Dom. Rel. 232; Ayl. Barer. 363; Swinb. 427; Best v. Best, 1 Add. Ec. 411, 2 Eng. Spousals, 2d ed. 152 ; Hedden v. Hedden, Ec. 158; where it is held, that antenuptial 6 C. E. Green, 61 ; Farr v. Farr, 2 McAr. incontinence is no ground of divorce. 35. 5 Ante, § 22. 2 See Perrin v. Perrin, 1 Add. Ec. I, 2 * Page on Div. 161. Eng. Ec. 11 ; Reeves v. Reeves, 2 Phillim. ' See Scroggins v, Scroggins, 3 Dev 125, 127, 1 Eng. Ec. 208, 209; Graves v. 535, 545. 206 CHAP. XVII.] FRAUD, ERROR, DURESS. § 482 her character, is to be deemed void from the beginning or not ; since it would be annulled on proof of the subsequent adultery.^ There seems, therefore, to be no urgent reason here for holding the marriage under consideration void, — a doctrine which would merely render innocent children illegitimate. And — § 481. Settled in Michigan. — In a Micliigan case, of which, however, it is fair to observe that the facts did not cover the extreme dissoluteness of common prostitution, the court refused the decree of nullity prayed ; and the wisdom and justice of this decision few will question. After a marriage of twenty years' standing, with cohabitation under it, and the bringing up of chil- dren, the husband sought to annul it on the allegation that, before the nuptials were celebrated, he made the chastity of his wife a subject of diligent inquiry among her relatives, and in her pres- ence ; but though he used due diligence he could learn nothing through his inquiries of others, yet she made to him specific asser- tions which were false, on the strength of which he married her. It was thereupon held that, should these allegations be proved, the marriage would not therefore be void. Said Campbell, J. : " The only cases cited on the argument, which have been supposed to favor divorces for antenuptial misbehavior, are cases where there was actual pregnancy at the time of the marriage. Witliout at- tempting to examine at length into the reasoning of these deci- sions, it is sufficient to say that such circumstances introduce very different evils from those attending on previous fault alone. They have a direct tendency to confuse inheritances, and create disputes of legitimacy. If such a case should be presented, we should be called upon to decide a question not presented by this record." 2 Further as to which, — § 482. Statutory Interposition. — This docti'ine is liable to be 1 "It has been sometimes supposed and is certainly not the less so in cases that if a man chooses to marry an im- where the previous life of his wife ren- modest woman, he cannot afterwards free ders her peculiarly accessible to tempta- himself from her by reason of her un- tion." Lord Penzance in Baylis v. Baylis, chastity. But there is no such law. Law Rep. 1 P. & M. 395, 397. Whatever the previous life of a woman ^ Leavitt v. Leavitt, 13 Mich. 4.52, 458. may have been, she binds herself by mar- In a subsequent case, it is strongly im- riage to chastity, and if she break the plied that the Michigan Court would hold conditions of marriage, her husband is the usual American doctrine on the sub- entitled to claim its dissolution. But on ject of antenuptial incontinence, — to be the other hand, a husband is at all times explained in succeeding sections. Dawson bound to accord to his wife the protection v. Dawson, 18 Mich. 335. of his name, his home, and his society, 207 § 484 MARRIAGE CONSTITUTED, NULUTIES. [BOOK III. varied by statutes. In one State we have had, and probably still have at the time of this writing, a provision of more than doubt- ful justice and public utility. It is, that it shall be a cause for dissolution " when the female, before marriage, has been guilty of illicit carnal intercourse with another man, the same being unknown to the husband at the time of the marriage." ^ Under which statute, if a girl has privately committed a single illicit act, and with her tears has cleansed away the stain from her soul, and Heaven has forgiven her, then, if her hand is asked in marriage, what is slie to do ? Why, of course, before the court- ship proceeds, she is to confess all to her lover, and put it in his power to ruin her. But this is not all. She is not safe to marry without proof of the confession. If she calls in her mother, the chances are that the witness will die before she does. Then if she calls in her younger brother, he may die first. If she puts the confession into writing, it may be lost or destroyed. There should be established in every county a public registry for these things. And the more the records were consulted, the less would be the improvement in public morals, and the less rapidly would vile gossip and scandal diminish. § 483. Antenuptial Pregnancy — is something quite beyond mere antenuptial incontinence in its character and effects. To be of any avail, it must be unknown to the man marry in g,^ the author of it must be another man and not himself ; and the facts must in some way, directly or by implication, come within the law's idea of fraud. Therefore, under our unwritten law, there is no absolute rule that the pregnancy will or will not entitle the man, on discovering it, to have the marriage declared void. In some circumstances it will, in others it will not ; depending on the ex- tent and nature of the fraud in the particular instance, as appear- ing in the facts special to tlie individual case. Hence, — § 484. Doctrine defined. — The doctrine, not in its nature ad- mitting of great exactness of definition, is, in general terms, that where a man marries a woman whom he has not defiled, and whom he reasonably believes not to be pregnant by another, if he afterward discovers her to have been pregnant at the time of 1 1 Md. Code of 1860, p. 76, § 25. The looked to see), there may be a divorce same, substituting "woman" for "female," where the woman had before marriage, in 1 Md. Pub. Gen. Laws of 1888, p. 143. without the knowledge of the man, been Under the Virginia Code of 1 860, p. 530, " notoriously a prostitute." § 6 (whether repealed or not I have not ^ Ante, § 465. 208 CHAP. XVlI.j FRAUD, ERROR, DURESS. § 486 the marriage, and she has not conducted toward him in good faith regarding such pregnancy, he has his option to repudiate the marriage and leave her ; whereupon it will be judicially de- clared void. But any want of due caution on his part, or any consent by him to the marriage after becoming aware of the facts, will render it indissoluble. To illustrate. — § 4:85. Young Man, and Older ■Woman pregnant by another. — A statute, doubtless jurisdictional merely,^ authorized a decree of nullity " when a marriage is supposed to be void, or the validity thereof is doubted, either for fraud or any legal cause."- There- upon a man's libel alleged that at the time of the marriage he was " only," in the words of the report, '' seventeen years of age, and the respondent was thirty years, or over; that he had been acquainted with her for only about six weeks ; that he was in- duced to marry her by means of her false and fraudulent repre- sentations that she was a chaste and virtuous woman, which he believed to be true ; and that her friends with whom she then lived repi'esented to him, at her procurement, that she was honest and virtuous ; but in trutli slie was not virtuous, but was at the time of the marriage pregnant with child by some person to the libellant unknown, of which child she was delivered on or about the 7th of March, 1857 [the date of the marriage was Oct. 11, 1S56], and the libellant did not thereafter live or have any inter- course with her." She was thus, it appears, pregnant when he made her acquaintance, and some four months along in her preg- nancy at the time of the marriage. The respondent demurred ; so the question was whether, assuming the facts to be as alleged, the libellant was entitled to a sentence of nullity. The court held that he was, overruling the demurrer.^ Vt^e shall now, more minutely to examine the law of tliis subject, proceed with some — § 4S6. Observations hereon — (How divided). — A decision, as appearing in a book of law reports, ordinarily consists of three things; namely, the result reached by the court from the facts, the general propositions of law in the opinion, and the reasoning upon those propositions. These may be all sound, or one or two of them may be, yet not the rest. And we cannot better examine > Ante, § 474, 475, 47S. » Mass. Stat. 1S55, c. 27 ; re-enacted. Gen. Stats, c 107, § 4. » Reynolds r. Reynolds, 3 AUen, 605. VOL. I — 14 209 § 487 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. some questions relating to our present topic than in connection with this case. We shall consider the general principles first; next, the reasoning; lastly, the result. § 487. First. The General Principles — (Special Facts). — Said the learned Chief- Justice, speaking for the whole court : " It would be difficult, if not impossible, to lay down any general rule or definition wliich would comprehend all cases coming within the range of the legal import of the word ' fraud.' A learned writer terms fraud hydra multorum capitum. An inquiry into the fraud- ulent intent and conduct of parties necessarily involves an inves- tigation of facts ; and as no two cases are precisely alike in their circumstances, it follows that the question whether fraud exists sufficient to vitiate a contract always depends very much on the nature of the transactions, the means of information possessed by the parties, and their relative situation and condition toward each other. The only general rule which can be safely stated is, that to render a contract void on the ground of fraud there must be a fraudulent misrepresentation or concealment of some material fact. What amounts to such misrepresentation or concealment, and whether the fact misstated or withheld is material, are ques- tions to be decided according to the circumstances developed in each case, as it arises for judicial determination." ^ Unquestion- ably these are sound views. On the one hand, no yardstick can measure fraud in marriage, to determine whether it is long enough or broad enougli to work a nullity ; on the other hand, there can be no like test of the quality of the fraud, to determine whether it is of the kind which vitiates the marriage or not. To illustrate by the facts of this case : if, starting with the proposition that mere antenuptial incontinence, however concealed or denied, is no ground of nullity, we proceed thence to inquire only into the extent of the act of fraud, we shall conclude that being pregnant and concealing the fact is no ground, when contemplated with respect to the qualities of the woman herself, not what she brings with her ; since the pregnancy is the natural and probable conse- quence of the incontinence. If, next, we look singly at what is done, surely she who, in a moment of weakness and confiding love, yields to a single embrace, which may produce pregnancy, is immeasurably less culpable than the common prostitute, who, as we have seen, has her day for repentance, and is therefore per- 1 Reynolds v. Reynolds, 3 Allen, 605, 606, Bigelow, C. J. 210 CHAP. XVII.] FRAUD, ERROR, DURESS. § 489 mitted to contract indissoluble marriage with a man kept in igno- rance of tlie prostitution. Yet, looking further, we have in this case the special fact that she is conveying to the new household a bui'den which, being there laid down, will work in it a most unwelcome change. § 488. As to Nature of Marriage. — The learned Chief- Justice proceeds to show that in these questions of fraud in marriage, the peculiar nature of the marital relation must be borne in mind, and that " no misconception as to the character, fortune, health, or temper, however brought about, will support an allegation of fraud on which a dissolution of the marriage contract, when once executed, can be obtained in a court of justice." ^ And he adds : " Nothing can then avoid it which does not amount to a fraud in the essentialia of the marriage relation. And as mere inconti- nence in a woman prior to her entrance into the marriage con- tract, not resulting in pregnancy, does not necessarily prevent her from being a faithful wife, or from bearing to her husband the pure offspring of his loins, there seems to be no sufficient reason for holding misrepresentation or concealment on the sub- ject of chastity to be such a fraud as to afford a valid ground for declaring a consummated marriage void." ^ These observations are eminently just. § 489. Secondly. The Reasoning — (incontinence without Preg- nancy, distinguished). — The learned Chief-Justice next proceeds to distinguish this case from one of mere antenuptial inconti- nence. " The latter," he said, " relates only to her [the woman's] conduct and character prior to the contract, while the former touches directly her actual present condition and her fitness to execute the marriage contract, and take on herself the duties of a chaste and faithful wife. It is not going too far to say that a woman who has not only submitted to tlie embraces of another man, but who also bears in her womb the fruit of such illicit in- tercourse, has, during the period of her gestation, incapacitated herself from making and executing a valid contract of marriage with a man who takes her as his wife in ignorance of her condi- tion and on the faith of representations that she is chaste and virtuous." ' Now, — ' In support of this view, see ante, § 454, 459, 460; Wier v. Still, 31 Iowa, 107. ' Eeynolds v. Reynolds, 3 Allen, 605, 607, 608. » Reynolds r. Reynolds, 3 Allen, 605, 609. 211 § 491 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. § 490. Compared with Impotence. — If pregnancy prevented consummation, and if it was inoirable either by time or art, there would be great force in this reasoning. But under the title Impo- tence we shall see that by universally established doctrine no inability to bear children, where there is the power of copula, does in any degree incapacitate the woman for valid marriage. The stipulation of the marriage contract is for copula, not fruit- fulness. Even impotence of copula, if curable, is not a ground of nullity. Nor is it different though the woman has, by her own voluntary fault or wickedness, " incapacitated herself." ^ Therefore this part of the reasoning of the court, being in direct contradiction of doctrine established in the law, cannot be good. To which suggestion it is no answer to saj' that the doctrine contradicting the reasoning is, in the books, set down under another title ; for the law is seamless, its classifications are for the mere convenience of writers and learners, and a proposition which is false under one head cannot be true under another. Even if the concealed pregnancy prevented present consummation, it would not be ground of nullity ; for with the birth of the child the obstruction would cease. But — § 491. Spurious Offspring. — The learned Chief-Justice proceeds : " A husband has a right to require that his wife shall not bear to his bed aliens to his blood and lineage. This is implied in the very nature of the contract of marriage. Therefore a woman who is incapable of bearing a child to her husband at the time of her marriage, by reason of her pregnancy by another man, is unable to perform an important part of the contract into which she enters ; and any representation which leads to the belief tliat she is in a marriageable condition is a false statement of a fact material to the contract, and on well-settled principles affords good ground for setting it aside and declaring the marriage void." 2 So far as this proposition is a reiteration of the one before stated, the answer to it has already been given. The rest is further developed by this learned person as follows : " The rule of the common law is, that if a man marry a woman who is with child, it raises a presumption that the child with which slie is pregnant was begotten by him. This presumption is founded on the supposed acknowledgment of paternity by the subsequent act of marriage ; and, although such presumption is liable to be > Post, § 777. 3 Keynolds v. Reynolds, 3 Allen, 605, 610. 212 CHAP. XVII.J FRAUD, ERROR, DURESS. § 492 rebutted, yet in the absence of proof it stands.^ A man, there- fore, who has contracted a marriage with a woman under such circumstances, if he could not obtain a divorce on the ground of fraud, would be subjected to tlie painful alternative of disowning the child, and thereby publishing to the world the shame of her who was still to remain his wife, or suffer the presumption of legitimacy to stand, and admit the child of another to share in his bounty and receive support in like manner as his own legiti- mate children. There is no sound rule of law or consideration of policy which requires that a marriage procured by false state- ments or representations and attended with such results upon an innocent party should be held valid and binding on him." ^ Now, — § 492. Concerning this Reason — (Presumption of Legitimacy). — Judicial opinions seem not to be quite harmonious as to the strength of the presumption of parentage in the case thus pro- pounded. Where the birth is soon after the marriage, all courts hold the presumption of legitimacy to be almost conclusive ; be- cause, in such a case, the plain inference is that the husband knew of the pregnancy, and that he would not have married the woman unless conscious of having had previous intercourse with her.3 But it has been deemed that, if at the marriage the preg- nancy is probably unknown (as commonly it must be whez'e the woman is but four or five months advanced) ; if the parties' acquaintance commenced too late for the husband to be the father ; if common opinion assigns the child to another man ; if it grows up, not in the husband's house, nor looking on him as father, nor being considered as his child ; if the woman's repu- tation is not good, — the presumption of legitimacy is strongly repelled.* And it has been even assumed that in such a case there is no presumption of the husband's paternity. " The knowledge of the situation of the party," said a learned judge, "constitutes the ground of the presumption."^ But aside from this, — 1 Referring to Hemmenwaj v. Tow- v. Stegall, 2 Brock. 256. See Bowles v. ner, 1 Allen, 209; Phillips o. AUen, 2 Bingham, 2 Munf. 442, 5 Am. D. 497, Allen, 453. 3 Munf. 599. 2 Reynolds v. Reynolds, supra, p. 610. * Stegall v. Stegall, snpra. ' Page V. Dennison, 1 Grant, Pa. 377 ; ^ Baker v. Baker, 13 Cal. 87, 99. And Dennison ?;. Page, 29 Pa. 420, 72 Am. D. see post, § 671. 644; S. V. Herman, 13 Ire. 502; Stegall 213 § 495 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 493. Further of Legitimacy. — Legal rights do not depend on facility in the proofs of facts. If they did, still a man who could establish his non-paternity in the nullity suit could do it equally on a question of legitimacy. At the same time, he would be in an unpleasant predicament. Yet were it known at the mar- riage and ever afterward to everybody — to all the world — except himself, that until then the woman was a common strumpet, tlie unpleasantness of the predicament would not afford ground for a decree of nullity. Therefore, looking at this element of unpleasantness alone, it is difficult to see that it should have a controlling influence. So appears the isolated fact ; but consid- ered in connection with other facts, it may, as we are about to see, be important. §494. Thirdly. The HesiUt — (Combination of Things). — It cannot consequently be disguised that the reasoning on which this case proceeds is, when looked at in its parts, unsatisfactory. Yet the result accords with what may be deemed to be the judicial opinion of this country.^ And though the reasoning, when thus examined step by step, seems inadequate, few in our American profession will reject its conclusion. The true view plainly is, that here is a cord of several strands, no one of wliich has strength enough to sustain the heavy consequence when put upon it alone. But, duly combined, they do sustain it. This effect of combination pervades equally the law of nature and the law of the land. In the latter it is frequently manifest, for ex- ample, in conspiracy, both civil ^ and criminal.^ And it appears in every part of the law where there is occasion for its presence. Thus, in the case we are contemplating, — § 495. Particular Combining Elements. — A woman knows she is pregnant ; she is along in years. There is a boy ; and she em- ploys confederates to assist her in stimulating his mind, and to tell him the untruth that she is chaste. He marries her under the inducement of the falsehood. Presently he learns, not only that she is without the virtue for which he took her to his bed and hearth, but she is carrying about an unborn child of another, the fruits of her incontinence. The child appears ; and as the 1 Post, § 496. 70, 71, 4 Am. D. 720; Adams v. Paige, 2 Bishop Non-Con. Law, § 353-362; 7 Pick. 542, 549, 550; Talbot v. Cains, 5 Gregory v. Brunswick, 1 Car. & K. 24, 31, Met. 520. 32, 3 C. B. 481, 492; Jones v. Baker, 7 ^ 2 Bishop Crim. Law, § 180 et seq. Cow. 445 ; Phelps v. Goddard, 1 Tyler, 60, 214 CHAP. XVII.] FRAUD, ERROR, DURESS. § 498 learned Chief-Justice explained, he must expose her profligacy to the world and still cohabit with her, or acknowledge the bastard to be his own, alike to his shame and the burdening of his pecu- niary means ; or, on the other hand, be permitted by the law to repudiate her. And though the legal understanding would reject each one of these considerations if it stood alone, when they are combined it cries, " Hold, here is enough ! " Indeed, according to our defining ^ here is more than enough ; the elements of his youth, her age, and friends called upon to help her, not being required. To keep these parties in marriage would not only wrong the innocent, but present an unseemly spectacle to the public eye, and degrade and bring into reproach this holy insti- tution itself. And in further affirmance of this conclusion, we have the — § 496. Common Legal Opinion. — A judge is not to administer his private views for law ; ^ but if the question before him is new in his own State, he may properly inquire how it is regarded elsewhere. In the present case, the court had intimations in judicial decisions of sister States. Thus, as going beyond this case, and more fully covering our own definition, — §497. Case in Point. — A little while before, tlie California Court had on careful consideration decided that where at mar- riage the woman is with child by a stranger, the man if ignorant of it may have the marriage declared null for the fraud. The statute of the State provides for such sentence " when the con- sent of either party was obtained by force or fraud," ^ — a pro- vision merely jurisdictional.* Looking further for the limits of the doctrine, — § 498. Plaintiff having had Intercourse himself. — If a man has himself had sexual intercourse with a woman, but unknown to him she has also had the like with another man, and by the latter has become pregnant, and he marries her on his faith in her assurance that the child is his, this fraud, it has been held, will not justify the setting aside of the marriage.^ And it is the 1 Ante, § 484. to verify, by independent inquiries, the 2 Bishop First Book, § 81, 82. statement of the woman as to whether or " Baker i'. Baker, 13 Cal. 87, 102. See not she had been unchaste with another also Montgomery v. Montgomery, 3 Barb, man ; and the language of the learned Ch. 132. judge who delivered the opinion may * Ante, § 478. perhaps leave it to be inferred that, if he ^ Foss V. Foss, 12 Allen, 26. In the had taken snch steps, and still had been facts of this case, the man took no steps deceived, the result would be different. I 215 § 499 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. same if, being pregnant by another man, while still the party marrying her has had unlawful commerce witli her, she fraudu- lently denies pregnancy altogether. Said the court, in the case in which the latter was adjudged : " The facts show that the libellant had full knowledge that the libellee was unchaste, be- fore he entered into the marriage contract, and was thereby put on his guard, so that he cannot allege that he was induced to contract the marriage by such fraud and deceit on the part of the libellee as will enable him to avoid the contract." ^ § 499. Simple Concealment. — In the facts of most cases, the woman simply does not disclose her pregnancy, — nothing being said on the subject. For the majority of men, about to marry, do not call witnesses and put to the beloved the question, — "^re you pregnant ? " Then if she is found after marriage to have been pregnant, what is the consequence of this omission ? An- other Massachusetts case holds, that to justify the decree of nullity it is not necessary the woman should have made to the man any express representations. Said Bigelow, C. J. : " There must be satisfactory proof either of misrepresentation or conceal- ment of some essential fact. This may be established either by direct or by circumstantial evidence. Nor is it necessary that it should be shown that there were any express misrepresentations or any positive and overt acts of concealment. It is sufficient to prove that the acts and conduct of one of the parties were such doutt whether the court would have re- therefore, related to a joint breaking of garded such fact, had it existed, as alter- the laws by the plaintiff and herself; and ing the question. If the man had asked not the less so, though it included the a thousand persons, and all bad said they false statepent that she had not also knew nothing against the woman's chas- broken the laws with another man. It tity, I do not see how this could have would consequently be against the policy changed the relations of the contracting of the law to sustain a suit growing parties. I am rather inclined to under- out of this transaction, — permitting one stand the court to lay down the doctrine to rely for relief on facts involving his that, since the man had himself found the own crime. In a State in which forni- woman fraQ, he was put on his guard ; cation is not indictable, this reasoning then, if he chose to marry her, he took would not be so forcible ; still, in such a the consfequences. And in principle, his State fornication is a gross breach of the participation in her frailties should greatly good order of society; and it might well impair his right to complain of tlieir be deemed to be against the policy of the results. law to give redress for a fraud committed ^ Crehore v. Crehore, 97 Mass. 330, 93 by the defendant in respect of this sort of Am. D. 98. Perhaps there is another immoral act, in which the plaintiff had ground on which this decision could equally participated. See further as to equally well have been put. Fornication the doctrine of the text, post, § 500 et IS, in Massachusetts, an indictable of- seq. fence. The woman's misrepresentation, 216 CHAP. XVII.J FRAUD, ERROR, DURESS. § 501 that a reasonably cautious and prudent person might be misled or deceived as to the existence of a particular fact which formed the basis or contributed an essential ingredient in the contract, and that these acts and conduct were adapted and designed to induce and create a false impression and belief in the mind of the other party. Every intentional misrepresentation of a material fact, however caused, whetlier it is the result of express state- ments or is to be implied from circumstances, if made with a view to induce another person to become a party to a contract which he would not else have entered into, affords sufficient ground to absolve the innocent party from the obligation which he was fraudulently led to assume. This is the general rule applicable to all contracts ; and we are unable to see any reason for except- ing from its operation the contract of marriage. The real diffi- culty in applying the rule to the latter contract is in determining what facts shall be deemed to be material. But when that ques- tion is once settled, the facts are to be shown in the same manner as other similar facts are established in regard to other contracts. If such were not the rule, it would be very difficult, if not im- possible, to prove a fraud such as is alleged in the petition in the present case. A woman who was about to enter into the marriage contract would rarely, if ever, make her condition as to pregnancy by other men the subject of express representations to the man whom she intended to marry." ^ § 500. Husband not the Father. — Plainly, in these cases, it must in some way affirmatively appear that the husband is not the father of the child ; lacking which evidence the application for a decree of nullity will be denied.^ § 501. Further of PlaintifFs Antenuptial Intercourse. — Not in all circumstances — at least, not by the opinions of all courts — will the fact that the plaintiff had antenuptial commerce with the woman ^ absolutely bar him of the remedy under consideration. Thus, where, at the time of the solemnization of a marriage be- tween two white persons, the child had actually been born, and the woman knew it to be a mulatto, yet swore it upon the white man and took out a bastardy process on which she had him ar- rested; to avoid which process, under the belief of being the father, he consented to marry her, — the marriage was set aside 1 Donovan v. Donovan, 9 Allen, 140, ' Long v. Long, 77 N. C. 304. 141. 3 Ante, § 498. 217 § 503 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. as procured by fraud. " If," said the Chancellor, " the child had not been born at the time of the marriage, the complainant would have had some difficulty in showing that he had been intentionally deceived and defrauded by the defendant, as she miglit possibly have supposed the child to be his, although she had also had con- nection with a negro about the same time." ^ But in ordinary cases, like the ones already considered, and perhaps in all by some opinions, mutual commerce before marriage will be a bar ; ^ as where, the pregnancy being mutually known after mutual in- tercourse which might have produced it, the woman falsely tells the man the child is his, and he marries her under belief of her assertion ; ^ or, knowing it is not his, marries her to avoid a pros- ecution,* but afterward comes in possession of the means of prov- ing his innocence, — in these cases, the courts have refused to decree a nullity. Even where, the parties being white, the child born after the marriage proves to be a mulatto, yet the woman took no active measures like those above described, simply con- cealing from the man the fact of having received a negro's em- braces about the time she did his, the marriage has been adjudged valid.^ But — § 502. Further of mere Concealed Pregnancy. — Where the man had not himself participated in the antenuptial misdoings, mere pregnancy, known and concealed, and resulting in the birth of a living child, is, according to doctrines already explained,^ ade- quate to work a nullity. So it was early adjudged in a case so adroitly managed that the first suspicion the man had was awak- ened by the appearance of a full-grown babe, three weeks after his marriage ; whereupon he left her, and brought his suit.^ And there appears to be in the books nothing contrary to this doctrine, which has been frequently affirmed.^ § 503. 'Woman falsely pretending Pregnancy. — If a woman not pregnant pretends to a man to be so by him, he cannot have a 1 Scott !•. Shufeldt, 5 Paige, 43. see Ilulings r. Hulings, 2 West. Law 2 Ante, § 49&; Carris v. Carris, 9 C. E. Jour. \3\. Green, 516. 6 Ante, § 484, 495, 497, 499. 3 Moss V. Moss, 2 Ire. 55. See also ' Morris v. Morris, Wright, 630 ; 9. r. Frith V. Frith, 18 Ga. 273, 63 Am. D. under a statute authorizing divorces in 289. the discretion of the court. Hitter h. Rit- ^ See post, § 543, 544. ter, 5 Blackf. 81." 5 Scroggins v. Scroggins, 3 Dev. 535 * Carris v. Carris, 9 C. E. Green, 516, (compare with Long v. Long, 77 N. (J. and other cases cited in the foregoing dis- 304); Scott w. Shufeldt, 5 Paige, 43. And cussions. 218 CHAP. XVII.] FRAUD, ERROR, DURESS. § 50G marriage entered into through faith in this representation set aside for the fraud.i § 504. Under Statutes — (Simply unknown to Husband). — This species of fraud has in some of our States been legislated upon ; as, in Alabama, where a nullity is to be decreed at the suit of the husband " when the wife was pregnant at the time of marriage, without his knowledge or agency." ^ Probably, under the un- written rule, she must at least have been conscious of the preg- nancy, which actively or passively she concealed. But there is no such qualification in the words of this statute ; and though the question may not have been adjudged, it would be difficult to find ground for thus limiting their meaning. It would seem, there- fore, to be broader than the unwritten law. A statute which did or does prevail in North Carolina is in terms more exclusive of common-law rules ; thus, — " If the wife at the time of the mar- riage be pregnant, and the husband be ignorant of the fact of such pregnancy and be not the father of the child with which the wife was pregnant at the time of the marriage." ^ It is not best further to attempt to anticipate here the judicial interpretations of these various statutes. § 505. Fraud practised on Mental Immaturity or Weakness : — Doctrine de&ned. — Since the fraud which will vitiate a mar- riage consists of a combination of elements each of which operat- ing alone may be inadequate,* a single element or an insufficient combination may be rendered adequate by combining with mental weakness short of the vitiating insanity, or with immaturity of years, or with anything else of the like tendency ; the question in every case being whether, under all the facts, the will was over- borne, deluded, or misled to the extent which will justify a court in declaring the apparent consent a nullity.^ Thus, — § 506. Immature Years — (Forged License, &c.). — The fact is always relevant, if it exists, that when the fraud was practised the complaining party was of years too immature to be presum- ably as capable as older persons of resisting its influence. Largely on this principle proceeded two similar cases, one in Texas ® and 1 Hoffman w. Hofiman, 30 Pa. 417. riage, unknown to the husband." Code of 2 Rev. Code of 1867, § 2352; Code of 1868, § 1711. 1886, § 2323. * Ante, § 494. 8 N. C. Code of 1883, § 1285. Georgia, 5 Compare with Bishop Con. § 731- " Pregnancy of the wife, at the time of mar- 744. 8 Robertson v. Cole, 12 Tex.. 356. 219 § 509 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. the other in Illinois.^ In each, a girl of fifteen ^ was inveigled by an older male person into a marriage with him, which she seems not fully to have understood ; performed under a license obtained, in the Texas case by forgery, and in the Illinois case by perjury. The element of non-consummation, already discussed, existed in both. And in both tiie marriage was declared null. Indeed, — § 507. Quality of Mind. — The quality of the mind practised upon is one of the most important facts to be considered in these cases. So we shall see in the chapter on mental incapacity, where something will be said of the blending of fraud with partial in- sanity .^ Thus, — § 508. In Causes not Matrimonial. — Where, in Tennessee, one sought in equity to have some promissory notes set aside on the double ground of mental weakness and fraud,* McKinney, J., ob- served : " The proof shows that he [the maker of the notes] was greatly harassed and distressed in mind ; that he was pressed most importunately by the defendant and others to execute the notes ; that his fears were appealed to by threats of a lawsuit which might sacrifice his estate ; that false representations were made to him respecting his supposed liability to the defendant ; and that his wife at length, in the hope of relieving his mind, joined in urging him to assent to the terms dictated by the plain- tiff ; and that, under the various influences, he was induced to make himself liable for the payment of $530 to the defendant, and to execute his obligations for the same, wholly unsupported, in our opinion, by any consideration, legal or moral." There was, in short, a combination of weakness on the one side, and of fraudulent practices and undue influence on the other ; therefore the party was by the court relieved of his obligation.^ And this general doctrine is illustrated in a variety of cases." Again, — § 509. Relation of Confidence. — If the one imposed upon stands in a relation of confidence to the other, — as, if he is nearly related, or the other has great influence over him, — this renders the court still more ready to set aside the contract.'^ But — 1 Lyndon D. Lyndon, 69 111. 43. Stewart v. Hnbbard, 3 Jones Eq. 186; 2 Post, § 512, 517, 518. Tracey v. Sacket, 1 Ohio St. 54, 59 Am. " Post, § 613. D. 610; Craddock v. Cabiness, 1 Swan, * Bishop Con. § 656, 735, 740. Tenn. 474; Chevalier v. Whatley, 12 La. 6 Johnson v. ChadweU, 8 Humph. 145, An. 651. 149. ' Bishop Con. § 658, 740 ; Simonton v. ' Marshall v. Billingsly, 7 Ind. 250 ; Bacon, 49 Missis. 582 ; Graham i^. Little, 220 CHAP. XVII.] FBA0D, ERROR, DURESS. § 511 § 510. Contract Executed. — Bearing in mind that marriage is an executed contract, not executory ,i our illustrations from ordi- nary contracts should in the main be limited to those of the former class. If, then, an ordinary contract has become executed, — as, for example, where a conveyance of land has been made and pos- session taken under it, — the court will less readily set aside the accomplished fact (in this instance, the conveyance) than it would the mere preliminary agreement to do tlie thing. In the words of Woodward, J. : " Nothing but fraud or palpable mistake is ground for rescinding an executed conveyance. So long as the contract continues executory, it may not only be impeached for fraud or mistake, but any invalidity which would be a defence at law would in general be ground for cancellation in equity." ^ Yet executed contracts are sometimes vacated in ordinary affairs.^ And it must always appear, not only that the party was liable to be influenced by fraudulent practices, but also that he was actually defrauded.* Now, to proceed to questions purely matrimonial, — § 511\ Mental Weakness and Inferior Fraud in Marriage. — In a nullity case, founded on an alleged combination of fraud and mental imbecility, Sir John NichoU said : " Nor am I prepared to doubt but that considerable weakness of mind, circumvented by proportionate fraud, will vitiate the fact of marriage, whether the fraud is practised on his ward by a party who stands in the rela- tion of guardian, as in the case of Harford v. Morris, which was decided principally on the ground of fraud,^ or whether it is effected by a trustee," which was the case before the court, " pro- curing the solemnization of the marriage of his own daughter with a person of very weak mind, over whom he has acquired a great ascendency. A person incapable from weakness of detect- ing the fraud, and of resisting the ascendency practised in ob- taining his consent to the contract, can hardly be considered as binding himself in point of law by such an act." Therefore the pretended marriage was ultimately set aside.® 3 Jones Eq. 152 ; Powell v. Cobb, 3 Jones * Walton r. Northington, 5 Sneed, 282 ; Eq 456 ; Taylor v. Taylor, 8 How. U. S. Nace v. Boyer, supra. 183; Freeland v. Eldridge, 19 Mo. 325. 5 Harford v. Morris, 2 Hag. Con. 423, 1 Ante, § 10, 11, 454, 455. 4 Eng. Ec. 575. Sir W. Wynne said thisi 2 Nace V. Boyer, 30 Pa. 99, 110. case was decided "on the ground of force » Ellis V. Mathews, 19 Tex. 390, 70 and custody." See note at the end of the Am. D. 353 ; Powell v. Cobb, 3 Jones Eq. report. 456; James v. Landon, 7 B. Monr. 193. ^ Portsmouth v. Portsmouth, 1 Hag, Ec. 355, 359, 3 Eng. Ec. 154, 156. 221 § 512 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 512. Extreme Youth, with Conspiracy and Duress. — Wake- field's Case, otherwise termed Miss Turner's Nullity of Marriage Bill, turned chiefly on fraud and conspiracy, though partaking slightly of duress. There a girl of fifteen, the prospective inheri- tor of a large fortune, was inveigled away from her boarding- school on the false representation that her mother had been ' attacked with dangerous sickness and had sent for her. The conspirators, having thus got possession of her person, induced lier to marry one of them by a series of fraudulent representa- tions, the chief of which were, that her father had become bank- rupt, was flying from his house in great distress to evade pursuing bailiffs, and the only escape for him was in her marrying the con- spirator, and thereby in a manner pointed out obtaining power over the estates. A pretended message from him was also com- municated to hasten her decision. After the marriage, and before consummation,^ she was traced out and rescued by her friends. " Why did you consent ? " she was asked, while testifying in a criminal prosecution against the conspirators. From " the fear that, if I did not, my papa would be ruined." The conspirators were convicted in the Criminal Court ; and the marriage was de- clared void by act of Parliament, to which it was said her friends resorted merely in consequence of the rule of law which would have rendered her testimony inadmissible in the ecclesiastical tribunal.^ 1 Ante, § 456, 461-466. pears to have been erroneous, post, § 515, 2 Rex V. Wakefield, 69 Annual Regis- that by the law of Scotland a marriage ter, 316, 47 Edin. Rev. 100, 2 Lewin, 279, could not be set aside for any fraud not 2 Townsend St. Tr. 112, 1 Deac. Crim. involving "a mistalse in the identity of the Law, 4; Turner's Nullity of Marriage person." 2 Townsend St. Tr. 150. The BiU, 17 Hans. Pari. Deb. n. s. 1133 ; Shelf, writer in the " Edinburgh Review " above Mar. & Div. 215 ; 1 Fras. Dom. Rel. 234. cited, after making many well-considered The reason for applying to Parliament, observations upon the subject of fraud as stated in the text, is the same which was invalidating marriage, concludes thus : assigned by Mr. Peele, as appearing in the " Upon the whole, therefore, though there place above cited from the Parliamentary are many difficulties in the question, we Debates ; together with the further reason incline to think that the marriage would of the delay of perhaps three years at- not have been set aside in any court, tendant upon a proceeding in the Ecclesi- either of England or Scotland." p. 107. astical Court. Mr. Peele deemed that the But see contra, Irving Civ. Law, 102, note, facts, if proved in an English court, would For some analogous cases, see Townsend's authorize a. sentence of nullity ; but the State Trials, as above cited. See also Scotch lawyer who was examined on the Field's Marriage Annulling Bill, 2 H. L. trial of the criminal case — this being a Cas. 48 ; Hull v. Hull, 15 Jnr. 710, 5 Eng. Gretna Green marriage between English L. & Eq. 589. parties — was of the opinion, which ap- 222 CHAP. XVII.J FRAUD, ERROR, DURESS. § 517 § 513. The Scotch Law of Fraud in Marriage : — Why? — Since, as already explained,^ the fraud which ■will vitiate a marriage consists in the main, not of isolated facts, to be tested by principles applicable to them singly, but more largely of combinations and accumulations of facts, to be determined upon by wider processes of reasoning, it seems well to add to the fore- going something from the Scotch law. For this purpose, the expositions of Fraser, the Scotch writer, will, with his authorities, suffice. He says : — § 514. Fraud compared with Force. — " Fraud, in the constitu- tion of the contract of marriage, renders it void. Force implies physical constraint of the will ; fraud, some overruling moral necessity, by which a certain state of the will is brought about, which could not have so been without deceit. In both cases the result is the same, although the constraint employed operates dif- ferently .^ And as to both, morality and law visit the deed with the same condemnation. § 515. Invalidates Marriage. — " It is the law of Scotland that a marriage brought about by false and fraudulent representations is null. This doctrine was denied by Mr. M'Neill at the trial of the Wakefields ; but it will be found to be sanctioned by various judgments of the court. § 516. Difficulty of Definition — (Diversity of Cases). — " No attempt will here be made to define what shall amount to fraud sufficient to set aside the marriage, as no two cases on this subject are alike. Lord Stair terms fraud hydra multorum capitum. § 517. Illustrative Facts — (Cameron v. Malcolm). — " In Cameron v. Malcolm,^ a young lady aged twelve years and six months,* the daughter of a propi'ietor in Fife, had gone through a form of marriage with John Cameron, a young man of twenty- two, the son of a neighboring proprietor. It appeared that the girl had a considerable fortune which Cameron wished to secure, his own father being in laboring circumstances ; and accordingly he made proposals of marriage to her mother, who put the matter off by urging the youth of her daughter ; recommended him to go abroad for some time, and on his return stated that she had no 1 Ante, § 494, 505. brings out the fraud which existed. It 2 Voluntati vim infert, quifraitde persua- has been taken from the Session Papers, det, says Brower. as that in the dictionary makes it seem ' Cameron v. Malcolm, Mor. Diet, entirely a mere squabble. 12586 (1756). This statement of the ease ♦ See ante, § 506. 223 § 518 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. doubt the marriage would be agreed to. The parties, some time after this, agreed to come over from Fife to Edinburgh, aud this they did together ; but not a word was said of marriage, or of an intention to enter into that contract. On arrival at Leith, Mrs. Malcolm, the girl's motlier, sent up her servant-maid and boy to Edinburgh, to put on fires and prepare everything for her recep- tion ; but she proposed to keep the governess to go up in the coacli with herself and daughter. But as the elder Cameron, his wife, and son, had determined to get the marriage celebrated that night, they foresaw that the presence of the governess in the coach would balk the scheme ; Mrs. Cameron accordingly ob- jected to her presence, and she was accordingly sent off with the other two servants. The company were then brought to the house of Mrs. Cameron's mother, where they drank tea ; and after tea Mrs. Malcolm and her daughter stayed, on Mr. Cameron's sugges- tion, to supper, the excuse being that their own house would not yet be ready to receive them. Immediately after supper, young Cameron went for the Episcopal minister to marry them ; there was no proclamation of banns. From some unexplained reason, the mother of the young woman then left the room. The parties shortly after came to the room where her mother and his father were sitting, when young Cameron said that the girl had con- sented to marry him, — a proceeding to which the mother would not agree. The minister deponed that the mother said that she gave her consent freely. But she immediately left the room, and would not be present at the ceremony. Thereupon the two par- ties were married, both of them audibly repeating the words of the office as they were directed. But the confusion and terror of the young woman were such that after she had repeated the responses as directed by the service, when the minister proceeded to read the prayers she repeated them also, until the minister stopped her. The marriage being over, a bedding was proposed. But the mother now came in, objected to this, and immediately carried off her daughter, in spite of the remonstrances of the Camerons.^ § 518. How decided. — " The court were all of opinion, with the exception of one judge, that there was no marriage, as the whole proceeding was a fraudulent, deceitful scheme to entrap a 1 [The reader will note that in this American ones, there was no copula, case, as in various other English and Ante, § 456, 461-466.] 224 CHAP. XTII.] FRAUD, ERROR, DURESS. § 522 young girl into a marriage, who, though apparently consenting to it, did not know what she was doing. The opinions of the court are stated in detail on the Arniston Session Papers. §519. Other Ulustiative Cases — (Niven's Case). — "Another case is stated by Lord Fountainhall,^ thus : ' One Niven, a musi- cian in Inverness, is pursued for deceiving one of his scholars, a lass of twelve years old, called Gumming, a minister's daughter, and marrying her, and getting a country minister to do it, by suborning one to call himself her brother, and to assert to the minister that he consented.^ This being an abominable impos- ture and theft, and a perfidious treachery, having a complica- tion of many villanies in it, he was sentenced, for an example, to stand at the pillory with his ear nailed to the Tron, then to be banished, which was done.' This was a decision of the Privy Council, and not of the Court of Session. § 520. Allan V. Young. — " The same doctrine was further confirmed by the case of Allan v. Young,^ which was the case of a declarator of marriage by a school-master against a young wo- man. While a pupil of his, and only thirteen years of age, she had by presents and flattery been enticed to his house, where he succeeded in getting a clergyman to perform the marriage cere- mony, there being no previous proclamation of banns, though a certificate thereof had been purchased by the pursuer. The cler- gyman proved that he had taken her into another room before the ceremony, and satisfied himself that she understood the na- ture of the duties and engagements she was about to undertake, and had deliberately resolved to marry the pursuer ; and that at the ceremony she made her responses firmly and clearly. The girl's mother, after the ceremony, seemed at first to acquiesce, but in the evening rescued her, and carried her off. The com- missaries dismissed the action, and the Court of Session con- firmed the sentence. § 521. Observations hereon — (Youth). — " These were all cases where the fraud was practised upon parties who were certainly capable of marriage, but who, from their youth, were peculiarly liable to be deceived. § 522. Illustrative Frauds on Older Persons. — " There are, how- 1 Reported also at p. 8936, Morison's ConBist. Law, Hep. p. 37. See Eoglish Note. cases to the same effect in Shelf. Mar. & 2 Compare with ante, § 508, 509. Dir. 134, 187, 214. 8 Allan V. Young, 9 Dec. 1773, Ferg. VOL. I. — 15 225 § 523 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. ever, cases where, with regard to persons of mature age, fraud in obtaining the consent to the contract has been held sufficient to annul the pretended marriage. The cases in which this has been sustained are of this nature : The woman generally gets the man into some retired place for the purpose of carnal connection, and there, before this is allowed to proceed, she obtains from him a promise of marriage, and copula immediately follows.^ She has at the same time two or three witnesses stationed so as to hear the promise, but concealed from the man. The consent here has been obtained in cestu amoris, without any intention on his part, she well knowing it,^ of entering into marriage, and where, if he had known that there were witnesses to the transaction, he would not have made the promise. The marriage, therefore, being brought about by the fraudulent contrivance of the woman, the court have refused in such cases to sustain it.^ § 523. Further Views — (Mistake of Person, &c.). — " The law was laid down by Lord Stair, as applicable to marriage, before he had decisions of the court to guide him. ' If,' he says, ' any one married Sempronia, supposing her to be a virgin, rich or well natured, which were the inductives to liis consent, though he be mistaken therein, seeing it is not in the substantials, the contract is valid.* But if the error or mistake which gave the cause to the contract were by the machination, project, or endeavor of any other party than the party errant, it would be circumven- tion.' ° And Mr. Fergusson says, that ' when it can be fully established by evidence that the apparent consent by either is not of the quality requisite", but has been extorted or gained by force, or fraud, so as not to be free and genuine, the contract, on this ground, although as to form completed by parties both legally capable, may likewise be set aside as void ab initio, by regular and timely challenge, at the instance of the party thus unlawfully compelled or deluded.' ^ ' Fraud,' says Pothier, ' is no less contrary to freedom of consent, required for marriage, than 1 [If this is a promise of future mar- in Sess. Papers, Arnistou Collection, vol. riage, something remaining to be done Ixxvii. and shortly noticed, 5 Mor. Diet, after the copula has been had to render Sup. 921. Harvey v. Inglis, 19 Feb. 1839^ the parties husband and wife, it by the Sess. Papers. established Scotch doctrine does not con- * Ante, § 460. stitute marriage, all considerations of ' Stair, 1, 9, 9, & 1, 10, 13, 3d para- fraud aside. Ante, § 346-348. ] graph ; Ersk. 3, 1, 16. 2 Ante, § 327-330. « Ferg. Consist. Law, p. 107. 3 Barr v. Fairie, 12 Feb. 1766. See it 226 CHAP. XVU.] PEAUD, ERROR, DURESS. § 526 is violence : a consent impetrated by fraud and deceit (^seduction') is as imperfect as that obtained by violence.' " ^ § 524. Further of our own Law : — Fraud mingling with Error. — The foregoing Scotch views have conducted us almost to our next sub-title, Error. It and fraud, by mingling, may make a stronger case than either would alone.^ Illustrations of such mingling are, — § 525. False Personation. — If one simply passes under an as- sumed name and another marries him, the marriage, being entered into with the person meant, is good.^ But if one of bad charac- ter, to obtain the hand of another, assumes the name of a person of good character, and the other marries him in the belief thus falsely induced that he is a different individual, this marriage is void.* Such is plainly enough the doctrine both of principle and authority. The reader will judge bow far it accords with the earlier — § 526. Beau Fielding's Case. — Robert Fielding, otherwise called Beau Fielding, was indicted for polygamy in marrying tlie Duch- ess of Cleveland, having alive another wife, whose name before her marriage to him was Mary Wadsworth. And the question was, whether or not this earlier marriage was good upon the fol- lowing facts. Being anxious to obtain the hand of a rich widow, whose name he knew, but whom lie had never seen, this Mary was passed off upon him as the identical object of his affections. He wooed her with great violence of passion, married her, tlien lost his love on discovering the trick. No attempt was made on his trial to show that in law the marriage was made invalid by the deception ; the jury convicted him, and he escaped death only by pleading clergy. Afterward a proceeding more important as to the question of law was heard ; in the Ecclesiastical Court the Duchess was granted a sentence of the nullity of her marriage with him by reason of this pre-existing marriage.^ In reply to any criticism of this case, it would be fair to say that thouy:h Fielding did not get possession of the particular ricli widow whom he was seeking, he did obtain the very flesh and blood he courted, 1 Pothier Tr. Cont. Marriage, § 220 j 537; Lord Stowell, in Heffer u. Heffer, 3 1 Fras. Dom. Rel. 234-237. M. & S. 265. * Ante, § 505. ^ Fielding's Case, Burke's Celebrated 'Clowes i/. Jones, 3 Curt. Ec. 185, Trials connected with the Aristocracy, 63, 191. 78, which is the only report of the case * Rex V. Burton-upon-Trent, 3 M. & S. before me. 227 § 528 MARRIAGE CONSTITUTED, NULLITIES, [bOOK III. and over which he poured his protestations and sighs. And as he was himself playing a game of fraud, pretending to have his heart on the person, while it was really on her supposed wealth, he was hardly in a position to complain when outwitted therein. § 527. Ignorance of Law. — Perhaps in one particular a mar- riage will be set aside for fraud more readily than an ordinary contract. The latter will bind the party th6ugh he mistook the law, all persons being conclusively presumed to know it.^ But it has been held that if one knowing the law entraps another igno- rant of it into a marriage ceremony valid in form, before a magis- trate or minister of the gospel, representing it not to be binding, which representation is believed ; and if the party deceived does not intend it shall be followed by cohabitation without a further public ceremony, and it is not so followed, — the marriage is void. And it has been said that there may even be extraordinary cases in which such a marriage would be invalid after consummation.^ But this case is also within another principle, considered in a pre- ceding chapter.^ On the other hand, — § 528. Brougham's Dictum. — Lord Brougham, whose strong and impetuous mind occasionally lacked judicial caution, once uttered in the Court of Delegates a dictum which, had it been sound, would have rendered uncalled for the foregoing elucida- tions. He said : " It should seem, indeed, to be the general law of all countries, as it certainly is of England, that unless there be some positive provision of statute law requiring certain things to be done in a specified manner, no marriage shall be held void merely upon proof that it had been contracted upon false rep- resentations, and that but for such contrivances consent never would have been obtained. Unless the party imposed upon has been deceived as to the person, and thus has given no consent at all, there is no degree of deception which can avail to set aside a contract of marriage knowingly made."* So much of this unfor- tunate dictum as concerns mistake of the person is, we are about to see, correct. 1 Bishop Con. § 462, 704; Midland 191, 1 S W. L^w Jour. 167; Mount- Great Western Ey. v. Johnson, 6 H. L. holly u. Andover, 11 Vt. 226, 34 Am. D. Cas. 798. 685. 2 Clark V. Field, 13 Vt. 460. See also 3 Ante, § 346-348. Robertson v. Cowdry, 2 West Law. Jour. * Swift v. KeUy, 3 Knapp, 2.^7, 293. 228 CHAP. XVII.] FRAUD, ERROE, DURESS. § 534 II. Error. § 529. "Error" or "Mistake." — Thus we have seen something of error as a ground of nullity. ^ In the law of ordinary contracts it is commonly termed Mistake,^ and there is no reason other than usage for choosing the former term for the present connection. But commonly, and perhaps in this instance, the reader is best served when conducted in the beaten path. § 530. Deaned. — When one who is not himself in fault, misled by an innocent mistake of facts, consents in appearance to what he does not in reality, such consent in error, though given through a form of marriage, does not constitute matrimony. Even though the other party is innocent, he is not estopped,^ because estoppel in pais operates only in cases of evil in the intent.* As to the limits of which doctrine, — § 531. Error of Person. — The common form of available error in marriage, spoken of in the books, and the only sort whereof they much enlighten us, is error of the person. It would not be safe to assume that there may not be other kinds. Thus, — § 532. One substituted for Another. — An illustration of error of the person is where one individual is substituted for another. " This," says Kent, " would be a case of palpable fraud ; " and he adds that " 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."^ Still, — § 633. Simply mistaking Person. — However difficult may be the supposition that one intending to marry A could, without a fraud being practised on him,^ marry B, yet, if the fact were established, there is no doubt the marriage would be invalid.^ And Lord Campbell puts the case of marriages in masquerade, where the parties are entirely mistaken as to the persons with whom they are united, as clearly void.^ § 534. How the Canonists hold. — According to Ayliffe, the 1 Ante, § 524-526. of fraud aa to the name of the person, " Bishop Con. § 693-714. ante, § 525, 526. 8 Ante, § 327, 334. ^ Ante, § 468, 469. * Bishop Con. § 292-295. ' Stayte v, Farquharson, 3 Add. Ec. 6 2 Kent Com. 77. And see the cases 282 ; ante, § 625, 526. 8 In Reg. V. Millis, 10 CI. & F. 534, 785. 229 § 537 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. canonists reckon four species of error. First, error personce ; as, when I have thought to marry Ursula, but by mistake of the person I have married Isabella. An error of this kind renders the marriage void ; " for deceit is oftentimes wont to intervene in this case, which ought not to be of any advantage to the per- son deceiving another."^ Secondly, error of condition ; as, when I think to marry a free-woman, but through mistake marry a bond-woman. This will avoid the marriage. But if the condition of the party were known, " the Church did not dissolve such a marriage." Thirdly, error of fortune ; which does not invalidate the marriage. Fourthly, error of quality ; as, where a man mar- ries a woman believing her to be a chaste virgin, or of a noble family, or the like, but finds her to be deflowered and of mean parentage. This kind of error does not affect the validity of the marriage. " Nay," adds our author, " the canonists are so far from rescinding a marriage contracted with a strumpet, that the law makes it a matter of merit for a man to take an harlot out of the stews and marry her ; because it is not the least act of charity, says the canon law, to recall a person going astray from the error of her ways ; but the true reason is, because the law allows of public stews." ^ § 535. Illustrations from Ordinary Contracts. — Possibly illustra- tions from doctrines which govern ordinary contracts may in some circumstances be helpful. Thus, — § 536. Mistaken Statement of Facts. — A vendor who makes a positive representation about the property he- sells — a case truly of mistake if he believes what he utters — is said to be guilty of fraud, equally whether he speaks in ignorance, or whether he wil- fully deceives.^ Yet this doctrine has its limits.* And — here we come again into pure fraud — § 537. Material — (Caution — Injury, &o.). — The misrepresen- tation, or error of fact, must be of a thing material, and upon which the party entering into the contract really relied ; also, in a case not of weakness of mind, the party deceived must have used reasonable caution ; and he must have suffered an injury.^ 1 Ante, § 468, 469, 532. * Gatling v. Newell, 9 Ind. 572; Payne 2 Ayl. Parer. 362, 363; ante, § 479, o. Smith, 20 Ga. 654. 480. 5 Swift V. Fitzhngh, 9 Port. 39 ; Bigby 8 Miner w. Medbury, 6 Wis. 295. And v. Powell, 25 Ga. 244, 71 Am. D. 168; see Gale v. Gale, 19 Barb. 249; Story v. Collier v. Harkness, 26 Ga. 362, 71 Am. Norwich, &c. Rid. 24 Conn. 94. D. 216; Peter v. Wright, 6 Ind. 183; Hill 230 CHAP. XVII.J FRAUD, EEROB, DURESS. § 540 III. Duress. § 538. Compared with Fraud — With Ordinary Contracts. — Duress, like fraud, is a ground for avoiding ordinary contracts.^ And the same rules which are applicable to them have been deemed to be so also to marriage.^ But we have seen that in considering fraud in the executed contract of marriage, its spe- cial nature, as distinguished from other contracts, must be taken into the account.^ Now, in natural reason, and it is believed in the law also, duress is different. One impelled by duress to do a thing acts because he must, and his mind is no more free to can- vass tlie nature of the act, and perform it or not according to his view thereof, than to refuse to do it altogether. Hence we come back to the proposition that the same duress which will avoid an ordinary contract will nullify a marriage.* Still, for convenience if for no other reason, the autlior will define duress in the mar- riage contract in terms not identical with those which he em- . ployed in respect of contracts generally ; ^ thus, — § 539. Defined. — When a formal consent in marriage is brought about by force or menace, — a yielding of the lips, not of the mind, — it is of no legal effect ; the same rule being applicable as in ordinary contracts.^ Thus, — § 540. Illustrative Case. — A young woman of some wealth, being engaged to a man, was induced by him to accept bills to a large amount for his accommodation. She was by the holder sued on them, and threatened with bankruptcy proceedings and financial ruin. The environment and the threats caused in her great distress of mind, impairment of health, and finally bodily and mental prostration, to a degree incapacitating her to resist coer- cion. Thereupon the man told her that the only way out of her trouble was to marry him ; whereupon she reluctantly went through with the ceremony, he first threatening to shoot her if she showed any unwillingness. The marriage was no^ consum- V. Bush, 19 Ark. 522; Davidson v. Moss, * Euth. Inst. b. 1, c. xv. 5 How. Missis. 673, 687; Mosa v. David- 6 Bishop Con. § 715. son, 1 Sm. & M. 112, 144; P. o. Cook, 4 6 Ante, § 458, 527; 1 Woodd. Lect. Seld. 67, 59 Am. D. 451. 253 ; No. 39 Am. Jurist, 29; Shelf. Mar. 1 Bishop Con. § 715-730. & Div. 213 ; Willard v. Willard, 6 Baxter, 2 Scott V. Sebright, 12 P. D. 21, 23. 297, 32 Am. E. 529; Pyle v. Pyle, 10 8 Ante, § 459. Philad. 58. 231 § 642 MAEBIAGB CONSTITUTED, NULLITIES. [BOOK III. mated, and it was judicially pronounced void.^ Perhaps this case illustrates also the doctrine of — § 641. Force proportioned to Mind acted on. — The old books have observations to the effect that to avoid a marriage yielded to through fear, it must be such fear as may happen to a man or woman of good courage and resolution ; importing danger either of death or of bodily harm.^ But in principle, and from analogies to other authorities,^ this cannot be so. The last judicial enun- ciation which the author has seen on this question appears in the case just stated; Butt, J., saying, — "I do not think that is an accurate statement of the law. Whenever from natural weak- ness of intellect or from fear — whether reasonably entertained or not — either party is actually in a state of mental incompe- tence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger." * And the just view plainly is, that the question of the mental qual- ity and the effect of the actual or threatened force is of evidence ; so that since matrimony can be contracted only with full and free consent, if a woman void of courage and resolution is in such ter- ror as not to know what she is about,^ while another more heroic would have remained undaunted, still there is the same want of consent, and the marriage is as completely invalidated, as though she had possessed a firmer courage, overawed by a more imniinent danger. And — § 542. Less Force on Feebler or Subject Mind. — The cases most frequent are where a weak and irresolute woman or a young and timid girl, possessed of a fortune, is entrapped and impelled into a marriage by a degree of fraud and force utterly inadequate to overcome a person " of good courage and resolution." Such was the leading case of Harford v. Morris, decided on the double ground of fraud and duress ; where one of the guardians of a young school-girl, having great influence and authority over her, took her to the Continent, hurried her there from place to place, and married her substantially against her will. The marriage was held to be void.® The case already stated,^ of Wakefield, who 1 Scott V. Sebright, 12 P. D. 21. « Harford v. Morris, 2 Hag.. Con. 423, 2 Ayl. Parer. 362. 4 Eng. Ec. 575, aud see note at the end of 8 Ante, § 505-512, 524. the case. * Scott V. Sebright, 12 P. D. 21, 24. ' Ante, § 512. 6 Fulwood's Case, Cro. Car. 482,488, 493. 232 CHAP. XVII.J FRAUD, ERROR, DURESS. § 544 married Miss Turner, was also thought to contain something of the element of force, and it is in point.i §643. Force lawful or unlawful — (Marriage under Arrest). — Force, to constitute in law duress, must be unlawful. A contract, for example, executed to free the maker from a lawful arrest, or to avoid such threatened arrest, is not therefore invalid.^ And a man lawfully arrested on a process for bastardy or seduction can- not, if he marries the woman to procure his discharge, have the marriage declared void as procured by duress.^ Nor is it other- wise though he has a good defence, and enters into the marriage simply to avoid being imprisoned under the process, and he after- ward discovers that he might have made his defence successful.* But if the process of arrest is void, or otherwise the imprisonment is unlawful, and he marries the woman to regain his liberty, the marriage will on his prayer be set aside.* And the same result appears also to follow where the arrest, while not technically ille- gal, is both malicious and without probable cause.® Hence, — • § 544. Arrest without Needful Warrant. — If an officer arrests a man for bastardy, not having the warrant which the law re- quires, and to avoid imprisonment he goes through with the form of marrying her, and then leaves her, the marriage will be de- clared void.^ ^ See the act of Parliament annulling ' James i'. Smith, Supreme Judicial the marriage. Shelf. Mar. & Div. 215, Court of Mass., May Term, 1861. This note. See also Portsmouth o. Ports- was a case before a single judge. I mouth, 1 Hag. Ec. 355, 3 Eng. Ec. 154, was favored with a report of it, by H. which was a case of fraud and lunacy in J. Fuller, Esq. counsel for the libellant, as combination. And see ante, § 472. follows : — 2 Bishop Con. § 720 ; Bates v. Butler, 46 Libel to annul a Marriage alleged to have Me. 387 ; Stevens v. Webb, 7 Car. & P. 60. been procured by Fraud and Duress. — ^ S. V. Davis, 79 N. C. 603 ; Johnson d. Abram A. James v. Julia B. Smith. The Johns, 44 Tex. 40; Sickles w. Carson, 11 parties were respectively paupers of the C.E. Green, 440; Dies w. Winne, 7 Wend, towns of West Bridgewater and Rayn- 47 ; Williams v. S. 44 Ala. 24. It is so ham. The libellant alleged in his libel, where one marries a woman he has se- that he was unlawfully arrested by a dep- duced, through fear of the penal conse- uty sheriff for the county of Plymouth, at quences. Honnett v. Honnett, 33 Ark. the instance of two of the selectmen of 156 34 Am. E. 39. Raynham, and taken to the office of * Scott V. Shufeldt, 5 Paige, 43. George W. Bryant, Esq., a magistrate 5 Bassett v, Bassett, 9 Bush, 696. See within and for the county of Plymouth, Allen V. Shed, 10 Cush. 375. and from thence to the house of said Julia ^ See Bishop Con. § 721 ; Reg. v. Or- B., where the marriage ceremony was per- gill, 9 Car.. & P. 80 ; Story Con. § 88, 89 ; formed by said Bryant ; that at the time No. 39 Am. Jur. 23, 24 ; Soule v. Bonney, of his arrest the officer had no warrant or 37 Me. 128; Barton v. Morris, 15 Ohio, precept whatever, nor during the time he 408; Collins v. Collins, 2 Brews. 515; was in the official custody; that the se- Stevenson v Stevenson, 7 Philad. 386. lectmen aforesaid threatened to shut him 233 §547 MARRIAGE CONSTITUTED, NULLITIES. [book III. IV. Doctrines common to the Three Impediments. § 545. Affirming by Cohabitation. — When the effect of the fraud, error, or duress has been removed from the mind en- thralled, this party has the election to affirm or not the marriage. It is affirmed, for example, by a voluntary continuance of tlie cohabitation, with full knowledge of the invalidating facts,^ — the like doctrine applying here as to other contracts.^ And on the question whether or not a particular transaction amounts to a ratification, resort may be had to decisions in other causes as well as in matrimonial oiies.^ § 546. Guilty Party. — We may presume that the party guilty of the wrong would not be permitted to take advantage of it, by maintaining a suit of nullity solely on that ground.* § 547, Both in Wrong — Non-consummation. — If the marriage in jail, to imprison and deprive him of his liberty, if he refused to marry said Julia B., or pay to them the sum of five hun- dred dollars, all of which tlireats were made during the time he was held in close custody by said selectmen and deputy sheriff; that being unable to pay said sum of money, and through fear of being deprived of his liberty, and while sur- rounded by said deputy sheriff and his associates, he consented to marry said Julia B., and under these circumstances and while still continuing in the custody of the said deputy sheriff and his associ- ates, the marriage ceremony was per- formed; that immediately after the said ceremony he left the said Julia B., and never at any time after had connection with her. The cause of making the arrest was, that the said Julia B. had, some weeks previously, been delivered of a bastard child, which she alleged and swore at the trial to be the child of the libellant, though she had never made any complaint before a magistrate, nor had any warrant ever issued according to law. The libellant denied that he was the father of the child. The case was tried before Judge Dewey. The facts as they appeared in the evi- dence were substantially those alleged in the libel. The decree of the court was as follows : — 234 Form of Decree of Nullity. — Plymouth ss. May Term, 1861, Supreme Judicial Court. In the matter of Abram A. James V. Julia B. Smith, praying for a decree of this court that a certain marriage solem- nized between the said parties may be declared void by a sentence of divorce or nullity, by reason of the same having been procured by fraud and duress : and upon the hearing of the evidence relating there- to the court find, that the same was ob- tained by duress and illegal restraint; this court does order a,nd decree, that the said pretended marriage between the said parties be declared void and of no effect, and the same is hereby annulled to all intents and purposes. 1 Ayl. Parer. 361 ; Scott i>. Shufeldt, 5 Paige, 43; 1 Pras. Dom. Eel. 229; 1 Burge Col. & For. Laws, 137 ; Hampstead V. Plaistow, 49 N. H. 84, 98. 2 Bishop Con. § 683, 728, 729, 844, 846, 848. " See Scott v. Shufeldt, supra; Clark V. Field, 13 Vt. 460; Morris v. Morris, Wright, 630; Miller's Appeals, 30 Pa. 478 ; Gilmer v. Ware, 19 Ala. 252 ; Gutz- willerw. Lackman, 23 Mo. 168; Galloway V. Holmes, 1 Doug. Mich. 330 ; Thompson V. Lee, 31 Ala. 292. 4 See S. V. Murphy, 6 Ala. 765, 41 Am. D. 79. CHAP. XVII.J FRAUD, ERROR, DURESS. § 549 has not been consummated, the court should more readily set it aside.^ When the parties are equally in the wrong neither is entitled to redress.^ § 548. Void or Voidable. — This marriage is to be deemed void or voidable, or neither, according as we understand these terms of uncertain and variable meaning. The impediments of this chap- ter are not canonical, hence the marriage is not voidable, but void, in the language of that law whence ours, on this subject, is in the main derived.^ It is perfected by the subsequent consent of the party whose want thereof at the solemnization alone rendered the ceremony inadequate to superinduce the status. Rogers writes of it under the head of voidable.* And Lord Hale, speaking of a marriage effected by duress, applies the word " voidable " to it ; even deeming it so far a marriage as, after consummation by force, to preclude the woman from bringing against the man the now-obsolete appeal of rape.^ But however it may have been with this antiquated proceeding, the only doctrine permissible in any age of legal enlightenment is, that the status of marriage is never imposed on a non-consenting person; so that though this mar- riage may be completed by such consent being added, until then it is, as to the status, null, though the ceremony has the legal effect just explained.^ And so the adjudged law is believed to be.'' Yet still the books exhibit an occasional — § 649. Misapprehension. — In a not remote case of fraud, the court pronounced the marriage to be, in its language, " voidable," not void. And therein the learned judge who delivered the opinion, misapprehending the meanings in which the two words have been used by other judges and by legal authors, deemed his tribunal to be overruling prior authorities. So he enforced the doctrine thus : " If a marriage procured by fraud is void, the most unjust and absurd consequences would follow. A void mar- riage is incapable of ratification.^ It is as if no pretended mar- riage existed ; neither party is bound ; the guilty and Innocent 1 And see ante, § 456, 461-466. « Post, § 614-626, 628-630. 2 Bishop Non-Con. Law, § 54-65 ; ' Eespublica v. Hevice, 3 Wheeler Westfall V. Jones, 23 Barb. 9 ; White v. Crim. Cas. 505, 507 ; Tarry v. Browne, 1 Crew, 16 Ga. 416; Miller v. Marckle, 21 Sid. 64; Fulwood's Case, Cro. Car. 482, 111. 152; Pinckston v. Brown, 3 Jones Eq. 488, 493; Shelf. Mar. & Div. 212, note; 494. 2 Kent Com. 76; 1 Barge Col. & For. 8 Ante, § 258, 259, 267, 285, 286. Laws, 137. * Eogera Ec. Law, 2d ed. 643. 8 As to which, see Bishop Con. § 614, 6 1 Hale P. C. 629. 846. 235 § 550 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. are alike at liberty to disregard it. If such a marriage as this is void, the guilty party may set up his or her fraud in order to escape the responsibilities incident to the marriage relation." ^ No judge, no respectable law-writer, ever held any such thing. And no man, familiar with the entire language of the law, ever applied the more common term " void " to this sort of mar- riage, without being aware that the word has, in some other connections, a wider meaning. This is a war of mere words. In the paucity of our language, such things are unavoidable even in legal writings. § 550. The Doctrine of this Chapter restated. The wide and universal principle, to the elucidation whereof many chapters of this volume are devoted, that the mutual con- sent of the parties is of the essence of marriage, which cannot exist without it, is the fundamental all-in-all of the present chap- ter. Where the mind is overcome by fraud, by error, or by du- ress, so that in fact it does not consent to an apparent marriage, the law will deem it to be no marriage ; though, if after the thrall is broken it then freely consents, no repetition of the ceremony will be required to make it good. It may be termed void or voidable according to the meaning which we attach to these uncertain or variable words. The elucidations of the chapter have been so minute and comprehensive that further repetitions are needless. 1 Tomppert v. Tomppert, 13 Bash, 326, 330, 26 Am. E. 197. See Willard v. WU- lard, 6 Baxter, 297, 32 Am. K. 529. 236 CHAP. XVIII.] CONSENT OP PARENTS. § 551 a CHAPTER XVIII. THE CONSENT OF PARENTS. § 551. Valid without. — At the common law, the marriages of minors arrived at their respective ages of consent, to be explained in the next chapter, were good without the consent of their parents.^ And still, — § 551 a. Solemnization Unlawful — (Fleet Marriages). — Within the doctrine that a marriage may be valid while the celebrator and parties are punishable,^ it was always in England, as now, unlawful to celebrate marriages in private ; therefore no clergy- man of reputation would perform the service without either license or banns. When the marriage was by license, there was an oath that the parties were of age ; or, if under age, that they had the consent of parents or guardians. When by banns, their minority was no objection. All marriages other than by banns or license, called clandestine, were illegal, but not void ; and they became so common that places were set apart in the Fleet and other prisons for their celebration.^ The want of the consent of 1 Rex V. Hodnett, 1 T. E. 96 ; Cannon livelihood from celebrating clandestine V. Alsbury, 1 A. K. Mar. 76, 10 Am. D. marriages for fees smaller than those 709; Pool V. Pratt, 1 D. Chip. 252; Cole- legally taken at the parish church. Al- man's Case, 6 City H. Eec. 3 ; Horner v. ready incarcerated for debt or for delin- Liddiard, 1 Hag. Con. 337; Fielder v. quencies, the reverend functionaries were Smith, 2 Hag. Con. 193 ; Droney u. Arch- beyond the reach of Episcopal correction, er, 2 Phillim. 327 ; Priestly o. Hughes, In some instances their profits were very 11 East, 1; Hargroves v. Thompson, 31 great. Thus we are told that by one of Missis. 211 ; The Governor o. Eector, 10 them six thousand couples were married Humph. 57; S. v. Dole, 20 La. An. 378 ; in a single year ; whilst at the neighbor- Wadd. Dig. 229. ing parish church of St. Andrews, Hol- ^ Ante, § 433-435. born, the number of marriages solemnized ' Lord Mansfield, in Rex v. Hodnett, in the same period was but fifty-three. 1 T. R. 96. Macqueen states the matter of These clandestine connections were also the Fleet Prison marriages as follows : celebrated at Mayfair, at Tyburn, and in "Prior to the middle of the last century, other parts of London; and through the there was in the Fleet Prison a colony of instrumentality of hedge parsons, they degraded ecclesiastics, who derived their were common all over the kingdom, — in 237 § 552 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. parents was, in the language of the ecclesiastical law, an impedi- mentum impeditivum, obstructing the way to the celebration ; but not an impedimentum dirimens, affecting the validity of the marriage solemnized.^ § 552. statutory Changes in England. — Upon this Condition of the law in England came Lord Hardwicke's Marriage Act,^ pro- viding that all marriages of minors not in widowhood, solemnized by license (not including marriages by banns), should be void when entered into without the consent of the father if living, or, if dead, of the guardian or the mother, or of the Court of Chancery. Great mischiefs resulted from the absolute nullity thus created. For example, when one under age had married by license, with the consent of the mother, the father being ab- sent and supposed to be dead, the marriage was declared void for the want of his consent.^ The same was held in other similar cases ; nor could length of cohabitation, or lapse of time, or pa- rental consent given subsequently, or the birth of children, cure the defect.* This hardship the courts could not mollify by con- struction. But they allowed the consent to be inferred from slight circumstances ; and even, in the language of Lord Stowell, held, " not without some controversy arising in other quarters, that it is necessary to prove the negative of consent, together with the other circumstances relied on, in the strongest terms." ^ Subsequent legislation has so far remedied the evil that though the consent of parents and guardians is required by law, the ab- sence of it does in no case render the marriage void.^ fact, greatly more so than marriages in to include illegitimate children. Priestly the face of the Church." Macq. Uir. & v. Huglies, 11 East, 1. Mat. Jurisd. 2. ^ Days v. Jarvis, 2 Hag. Con. 172. 1 Horner v. Liddiard, 1 Hag. Con. 337, And see Hodgkinson u. Wilkie, 1 Hag. 348. Con. 262; Smith v. Huson, 1 Phillim. 287; 2 26 Geo. 2, c. 33, § 11. Cresswell o. Cosins, 2 Phillim. 281 ; Sul- 8 Hayes v. Watts, 3 Phillim. 43. livan o, Sullivan, supra ; Balfour v. Car- * Jones V. Eobinson, 2 Phillim. 285 ; penter, 1 Phillim. 221 ; James v. Price, 1 Johnston v. Parker, 3 Phillim. 39; Red- M:iu.c& R. 683; Cope u. Burt, 1 Hag. Con. dall V. Leddiard, 3 Phillim. 356 ; Turner 434 ; 2 Burn Ec. Law, Phillim. ed. 437, V. Felton, 2 Phillim. 92; Days v. Jarvis, 438; Rogers Ec. Law, 2d ed. 612, note a; 2 Hag. Con. 172; Droney u. Archer, 2 Wadd. Dig. 229-231; Harrison v. South- Phillim. 327 ; Fielder v. Smith, 2 Hag. ampton, 21 Eng. L. & Eq. 343. And for Con. 193; Clarke v. Hankin, 2 Phillim. an illustration of the principle laid down 328, note ; Duins v. Donovan, 3 Hag. Ec. in the text, see Piers v. Piers, 2 H. L. Cas. 301 ; Rex v. James, Russ. & Ry. 17 ; Sul- 331. See, however. Rex v. Butler, Russ. livan u. Sullivan, 2 Hag. Con. 238, 241. & Ry. 61. Ulegitimate. — The statute was construed ^ Rex v. Birmingham, 8 B. & C. £9, 2 238 CHAP. XVIII.J CONSENT OP PARENTS. § 557 § 553. 'Withdrawing Consent — (Death of Parent). — In a case, not of nullity of marriage, but concerning the effect of a will, it was held that though a parent could withdraw his consent at any time before the nuptials were celebrated, yet if he died before such celebration, the consent given in his lifetime was good.^ § 554. statute construed — (Clause of Nullity). — By a rule stated in a preceding chapter,^ a statute requiring the parental consent, yet not expressly declaring the marriage celebrated with- out it to be void, is construed as directory only ; so that still a marriage without such consent is valid.^ § 555. With us at Common Law. — The date of Lord Hard- wicke's Marriage Act* is 1753, too recent to be common law with us. Hence, by our common law, the marriage of minors without the parental consent is good.^ § 556. statutes with us. — We have statutes regulating these marriages, the leading rule for interpreting which has just been stated.^ Some of them may perhaps create a nullity where the consent of parents is wanting.'^ And there are provisions in- tended to operate as obstructions to such marriages. We shall consider them when, in another chapter, we inquire of the offences connected with irregular solemnizations. § 557. Effect on Status of Minority — (Emancipation). — The marriage of a minor generally, perhaps always, emancipates him.^ As expressed by a learned judge, who was considering the effect of the marriage of a girl of fifteen without the consent of her parents ; " The marriage being valid, the ordinary legal conse- quences of marriage followed. The husband and wife were one person, and he was entitled to her society and services. The authority of the parents over the daughter, their right to her M. & R. 230 ; Rogers Ec. Law, 2d ed. 6 Ante, § 432. 611. See Rex v. WauUy, 1 Moody, 163, » Ante, § 554. 1 Lewin, 23; Rex v. St. John Delpike, ' See the American cases cited ante, 2 B. & Ad. 226; 19 & 20 Vict. c. 119, § 554; also, Hiram v. Pierce, 45 Me. 367, § 2, 17. 71 Am. D. 555. The Governor v. Rectdr, > Young V. Furse, 2 Jur. N. s. 864, 26 10 Humph. 57 ; Ferrie v. The Public Ad- Law J. V. 8. Ch. 117. ministrator, 4 Bradf. 28; Fitzsimmons v. 2 Ante, § 423, 424. Buckley, 59 Ala. 539. 8 Ante, § 432 ; Goodwin v. Thompson, ^ Dick v. Grissom, Freeman, Missis. 2 Greene, Iowa, 329; Patton v. Hervey, 428; Reg. v. Selborne, 2 EUis & E. 275; 1 Gray, 119 ; Rex v. Birmingham, 8 B. & Rex v. Witton, 3 T. R. 355 ; NorthfieH v. C. 29. See as to the construction of the Brookfield, 50 Vt. 62 ; Sherburne v. Hart- Arkansas statute, Smyth v, S. 13 Ark. land, 37 Vt. 528; Bozrah v. Stonington, 696. 4 Conn. 373, 375 ; Bucksport v. Rockland, * Ante, § 552. 56 Me. 22. 239 § 559 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. custody and services, were held subject to her right to contract marriage, and upon the marriage were suspended." ^ In Maine, this consequence was denied to the marriage of a minor without the parental consent.^ But it is difficult to sustain, in principle, this dissent from the general doctrine ; since the rights and obligations of marriage are in their nature superior to the parental claim,^ — sucli as the infant husband's duty to pay his wife's antenuptial debts * and to support her,^ and the infant wife's to serve and be governed by her husband instead of her father or guardian.^ § 558. Procuring Marriage of Minor. — Though one who entices away from the father a child who is also his servant incurs a lia- bility to the father,^ it has been held that a parent, as such, can- not maintain an action for procuring without liis consent the marriage of an infant child. If the child was his servant, he appears to be deemed entitled to compensation for his loss of services before the marriage, not afterward ; " for the marriage, though procured by unlawful means, was nevertheless valid, and unquestionably gave to the husband of the daughter, from the time it took place, a right to her company and services."* § 559. The Doctrine of this Chapter restated. Under our unwritten law, the marriage of an infant of suffi- cient age is good though the parent does not consent. And the rights and duties of husband and wife attach to the marriage, and supersede the conflicting parental claim. We have statutes which forbid the celebration of the nuptials of minors without permission from the parent or guardian ; but, in the absence of a clause of nullity, which most of them do not contain, a mar- riage in disobedience is valid, while yet the participators in it may be subject to a penalty or punishment. 1 T. R. Strong, J. in Bennett u. Smith, ^ Bishop Con. § 910; 2 Kent Cora. 21 Barh. 439, 441. And see 2 Bishop 240; Met. Con. 69. Mar. Women, § 525. * 2 Bishop Mar. Women, § 525. 2 White V. Henry, 24 Me. 531, 532. ' Bishop Non-Con. Law, § 373-384. ^ Sherburne v. Hartland, supra; Eex * Jones v. Tevis, 4 Litt. 25, 14 Am. D. V. WittOD, supra. 98. See Eyre v. Shaftsbuiy, 2 P. Wms. 4 Bishop Con. § 201 ; Butler v. Breck, 102, 111, 112. 7 Met. 164, 39 Am. D. 768. 240 CHAP. XIX.] AGE OP THE PARTIES. § 564 CHAPTER XIX. THE AGE OF THE PARTIES. § 560. Introdnction. 561-581. Under Common Law. 582-585. Statutes and their Effect. 586. Doctrine of Chapter restated. § 660. How Chapter divided. — We shall consider, I. The Com- mon Law of the Subject ; II. The Statutes and their Effect. I. The Common Law of the Subject. § 561. Infancy — Majority. — The status termed infancy ends in majority at the age of twenty-one years in both males and females, except in a few States where girls are by statute made of age at eighteen.^ But — § 562. Age of Consent. — The age at which matrimonial con- sent can be given, — that is, when a minor is capable of marry- ing, — being the matter to be treated of in this chapter, is a different thing, depending on a different reason. So — § 563. Promise to marry, distinguished. — An infant's promise to marry, whether he is under or over the age of matrimonial consent, is voidable by him, though binding on the other party if an adult.2 This is a contract, while the marriage permissible at the age of consent is a status ; * hence the distinction. Now, — § 564. The Ground of the Distinction — between the incapacity of minority and matrimonial incapacity is, that the former is mental, the latter physical. The law deems that one may prop- 1 Bishop Con. § 893, 894 ; Kester v. 496 ; Cannon v. Alsbury, 1 A. K. Mar. 76, Stark, 19 HI. 328. 10 Am. D. 709 ; Pool v. Pratt, 1 D. Chip. ^ Ante, § 206 ; Holt u. Ward, 2 Stra. 252 ; Warwick <: Cooper, 5 Sneed, 659 ; 937; Hunt v. Peake, 5 Cow. 475, 15 Am. I). Hamilton v. Lomax, 26 Barb. 615 475 ; Willard v. Stone, 7 Cow. 22, 1 7 Am. D. 3 Ante, § 1 0, 1 1 . VOL. I. — 16 241 § 566 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. erly be of age only when he has become mentally capable of man- aging affairs; he may marry when he has attained a physical ability to perform the special functions of marriage. Further to explain, — § 565. Physical Incapacity. — As impotent persons, of whatever age, cannot contract perfect matrimony ; ^ so, according to the doctrine of this chapter, cannot boys and girls whose physical natures are not sufficiently mature. Mere infancy is no disquali- fication ; 2 but those who, whether older or younger than twenty- one, have no physical capacity, either because they want the maturity which age alone brings, or because of some incurable defect in the organism, are incapable of completely valid mar- riage. The case has been likened to the infant's executory agree- ment to purchase necessaries on the one hand, and his executed agreement on the other hand ; the former does not bind him, but on the delivery and acceptance of the necessaries, whereby the agreement becomes executed, he is bouud.^ § 566. Further of the Reason. — Tlirough the entire law of mar- riage runs a distinction, more than once already adverted to in this volume, between what would be wise if men and women were machines controlled in all their actions by the direct force of legal command, and what is wise in view of the fact that, instead of this, the governing power over them is human passion, human frailty, and the higher and better loves combined. Whatever be the just rule for the age of matrimony, and however much a wise prudence may commend the forbearing of marriage entangle- ments until the parties have passed their twenty-iirst year, it still remains true that minors in greater or less numbers will come together matrimonially, not heeding any admonition from the law, and children will be born of the union. And the question for the law-making power will be, not whether such unions are wise or foolish, since no laws can prevent them, but whether they shall be accorded the legal status of matrimony on the one hand, or held as meretricious on the other ; and whether the children, who were not consulted about being born or about their parentage, shall bear the honors of legitimacy or the disgrace of bastardy. In like manner, as a question of public morals, it is of high con- sequence that all unions between the sexes shall, when possible, 1 Post, § 757 et seq. » Pool v. Pratt, 1 D. Chip. 252. 2 Gavin v. Burton, 8 Ind. 69. 242 CHAP. XIX.] AGE OP THE PARTIES. § 568 be rendered matrimonial. The common law has alwaj'S acted on this principle, hence, for example, its rule that matrimonial con- sent is marriage, though without priestly benediction or other form. On the other side, as we have already seen,i we have more or less legislative folly, succeeding to the common law, whereby unions in the nature of matrimonial are made meretricious if the parties have omitted prescribed formalities. And we saw in the last chapter that the common law pronounces valid the marriage of minors to which their parents did not consent ; but legislation, lifting itself up in assumed superiority, made them void until it- self became truly wise and restored the common-law rule.^ On the subject of the present chapter, the common law has followed its usual course of wisdom ; and, however much lamenting its inability to keep boys and girls whose bodies have grown while their minds have not, from inconsiderate and premature mar- riages, it has, in the interest of the public and the unborn chil- dren, rendered such marriages valid. And still, to investigate before a court and jury the facts of the physical capability in each particular case would be both unduly laborious and demor- alizing. Hence, — § 567. Compared with Impotence. — We shall see, in the chap- ter on Impotence, that an adult's lack of the physical capacity for matrimony is to be proved in each particular instance. And this comes from necessity ; there is no other way in which the fact can be made to appear. But puberty is diiferent ; substantially, though not with precise accuracy, it comes with measured years. So that for matrimonial purposes, and by most opinions for rape as to the boy,^ the capacity in law — that is, the legal puberty — is a question of age ; namely, — §568. Fourteen, Twelve — (Age of Consent). — The common law has fixed the age of puberty, required for marriage, at four- teen in males and twelve in females.* It terms this the age of consent, and Littleton calls it also " the age of discretion ; " ^ while Ayliffe, in a more exalted strain, praises the infantile 1 Ante, § 385-389. & Wife, 4 ; Arnold v. Earle, 2 Lee, 529, 2 Ante, § 552. 6 Eng. Ec. 230 ; The Governor v. Rector, ^ Kape. — A boy under fourteen is 10 Humph. 57; Parton r. Hervey, 1 Gray, conclusively presumed incapable of com- 119; Rex v. Gordon, Russ. & Ry. 48. mitting rape. 1 Bishop Crim. Law, § 373, ^ Co. Lit. 79 a, and Mr. Hargrave's 554; 2 ib. § 1117. note, No. 43. * Pool V. Pratt, supra; 1 Bright Hus. 243 § 572 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. capacity of fourteen and twelve, thus : " This is the age of per- sons which the law has deemed capable of advice and under- standing, which ought to be principally regarded in the business of matrimony, because so many inconveniences may flow from an indiscreet marriage ! " ^ Swinburne, better apprehending the principle, says: "The reason is, that because at these years the man and the woman are not only presumed to be of discretion and able to discern betwixt good and evil, and what is for their profit and disprofit ; but also to have natural and corporal ability to perform the duty of marriage, and in that respect are termed puberes, as it were plants, now sending forth buds and flowers, apparent testimonies of inward sap, and immediate messengers of approaching fruit." ^ § 569. 'Whence and why Fourteen and Twelve. — The common- law rule of fourteen in males and twelve in females, as the age of consent, was derived from the civil law, also substantially from the canon.3 The Scotch law has the same rule. It originated in the warm climate of Italy, and it has been thought not entirely suited to more northern latitudes. * § 570. Proof of actual Puberty. — The canon law seems not to regard the ages of fourteen and twelve as conclusive, but to per- mit capacity, or puberty in fact, to be proved by actual inspec- tion.® In a Scotch case it was attempted, on the strength of con- siderable Scotch as well as canon-law authority, to establish the same rule ; but the court refused, chiefly because of the inexpedi- ency of permitting the'indecent examinations necessary in its appli- cation.® The common law also seems never to have yielded to the inquisitive disposition of the canon law, but to have always con- tented itself with the simple inquiry into the ages of the parties.' §571. Seven Years — (Void under). — Another period to be considered is that of seven years, alike in male and female. If either party to a marriage is below seven it is a mere nullity.* § 572. Between Seven, and Fourteen or Twelve — (inchoate Marriage). — If both parties have arrived at seven, and either is 1 Ayl. Parer. 361. ^ Johnston v. Terrier, Mor. Diet. 8931 ; 2 Swinb. Spousals, 2d ed. 47. 1 Fras. Dom. Rel. 43. 8 1 Bl. Com. 436. ' 1 Bl. Com. 436 ; Macpherson on ' 1 Fras. Dom. Rel. 42 ; Ferg. Consist. Infants, 168. See 1 Bishop Crim. Law, Law, 136, and App. 54 ; Rogers Ec. Law, § 373. 2d ed. 632, note. » 2 Burn Ec. Law, 434a; 1 Bl. Com. 5 Ayl. Parer. 247; 1 Fras. Dom. Rel. 436, note 11, by Chitty, &c. ; Swinb, 43; 1 Bl. Com. 436; Bowyer Com. 45. Spousals, 20, 21. 244 CHAP. XIX.] AGE OP THE PARTIES. § 575 below his or her age of consent, — that is, under fourteen or twelve, — or, if both are,^ they may still contract an inchoate or imperfect marriage. § 573. Annulling Inchoate Marriage. — They cannot avoid or annul this marriage until the one discarding it has reached the age of consent for such party, whether it be twelve or fourteen;^ and perhaps not until the other has also arrived at his or her age of consent.^ More specifically, — § 57'4. Age for Annulling — Further as to. — Reeve observes : " In Rolle's Abr. 341, there is a case where a wife, being only eleven years of age, did then disagree to the marriage ; and the husband, being then of the age of consent, married another woman, and by her had a child. Such child was adjudged to be a bastard, because the former mari'iage continued valid ; for tlie first wife, when she dissented to the marriage, had not arrived at the age when she could dissent. A marriage at such a tender age has not been heard of in Connecticut, I believe; and I cannot suppose that such marriage would be considered valid." * Still, doubtless the common law in most of our States is, on tliis subject as on others, what it was in England when this country was settled. In New York, a man having in form married an infant girl under twelve, who immediately declared her ignorance of the nature and consequences of the ceremony, and her dissent therefrom, — the Court of Chancery, on a bill by her next friend, ordered her to be placed under the protection of the court, as a ward, and prohibited the man from all intercourse or correspondence with her, under pain of contempt.^ Whether this proceeding is war- ranted by the English practice or not, it can hardly be deemed an abnegation of the common-law doctrine ; rather, it gives it a more equitable effect. It does not deny the right of the girl to affirm the marriage on reaching her age of consent. Moreover, — §575. Both bound or Neither — (More of when Dissent).— Since there cannot be a husband without a wife or a wife with- out a husband, both parties must be bound by this marriage or neither. So that though one has passed the age of consent, if the other has not, either may avoid the marriage when the latter 1 jVnte, § 562. Ohio, a doctrine differing somewhat from 2 Qq nt, 79_ that stated in our text has heen held, » Swinb Spousals, 34. though without much discussion. Shaf- « Reeve Dom. Rel. 237. her "• S. 20 Ohio, 1. As to Arkansas, see 6 Avmar v. Roff, 3 Johns. Ch. 49. In Walls v. S. 32 Ark. 565. 245 § 577 MAREIAGE CONSTITUTED, NULLITIES. [bOOK III. has arrived at such age ; as, if a boy of fourteen marries a girl of ten, he, at her age of twelve, as well as she, may disaffirm the marriage. This rule, differing from that in the ordinary con- tracts of infants, comes from the special nature of matrimony ; wherein either both parties must be bound, or an equal election of disagreement be open to both.^ It is so also, to some degree if not fully, in other parts of the marriage law. § 576. How Dissent expressed — (And when). — The disaffirm- ance of this imperfect marriage may be either with ^ or without ^ judicial sentence. There is some question whether or not the suit for the latter can be maintained before the parties have reached the respective ages of fourteen and twelve.* In reason, it cannot be, if they are free from superior authority ; because, as they cannot dissent in pais till then, it would follow that they cannot earlier consent to a suit for the same object. It might be different with others having the right to control their marriage.^ § 577. Affirming the Marriage. — When both have attained their respective ages of consent, if they affirm the marriage, it is ever afterward binding, and no new ceremony is required.® An obvious way of affirming is by continuing to cohabit,^ or by sexual inter- course ; and the same has been said to follow from "endeavors only," * and from kissing, embracing, sending gifts, and so on. In this, it is seen, a different rule, derived from a different rea- son, prevails from what governs in the transformation of espousals per verba defuturo into matrimony, whei^e no familiarities short 1 Co. Lit. 79, and Mr. Hargrave'a note, ^ Gibs. Cod. 446 ; 2 Burn Ec. Law, No. 45 ; 1 Bl. Com. 436 ; 1 East, P. C. 500 ; Sir George Hay, in Harford v. 468; Godol. Abr. 507 ; Gibs. Cod. 423. A Morris, 2 Hag. Con. 423, 4 Eng. Ec. 575, canon of Eichard, who succeeded Thomas 577. Becket in the see of Canterbury (a. d. ' Co. Lit. 79 6; Burn, supra, p. 435; 1175, 18th canon), enjoins, in conformity 1 Bl. Com. 436. But see Walls u. S. 32, with decrees of Pope Nicholas, that " mar- Ark. 565, 570. riage is null without the consent of hath * Compare Co. Lit. 79 with Gibs. Cod. parties. They who marry boys and girls 446, followed by Burn, as above cited ; do nothing, unless they consent after they Aymar v. Koff, 3 Johns. Ch. 49. come to years of discretion. Therefore we * But see on this subject, Aymar v. forbid the conjunction of those who have Boff, 3 Johns. Ch. 49. not both attained the legal and canonical * Co. Lit. 79 ; 1 Bl. Com. ut su- age, unless there be urgent necessity for pra ; Koonce v. Wallace, 7 Jones, N. C. the good of peace." See the same injunc- 194. tion repeated in the Constitutions of Ed- ' 2 Dane Abr. 301 ; Coleman's Case, mund. Archbishop of Canterbury, 1236. 6 City H. Rec. 3. Johnson's Canons, vol. 2 ; Rogers Ec. Law, « Xy\. Barer. 250. 2d ed. 632. See 2 Burn Ec. Law, 434. 246 CHAP. XIX.] AGE OF THE PARTIES. § 579 of the carnal act will suffice.^ It has also been said that the affirmance by continued cohabitation will be good, even though, by parol or in writing, they disagree, unless the disagreement is made before the ordinary ; ^ which expression, translated into the language of our own American law, probably means, unless the disagreement is made matter of judicial record. § 578. Nine Years — Seven — Four — (Dower). — If, when the husband dies, the wife has attained the age of nine years, she is admitted to dower ,3 " of what age soever," adds Coke, " her hus- band be, albeit he were but four years old."* But so much of this proposition as gives dower to the widow of a four-years-old boy appears inconsistent with what is before stated,^ on tlie au- thority of Burn and others, that the marriage is absolutely void unless loth parties are at least seven ; for surely dower cannot rest on a completely void marriage. Looking at this question in the light of principle, if we assume the correctness of the doc- trine which denies all capacity for marriage below seven, the result must follow that while one of the parties is under seven, the marriage is totally null, whatever be the age of the other. Because, as we have seen,^ in the executed contract of marriage, either both must be bound or neither ; for if the boy is not a husband, the girl, lacking a husband, is not a wife ; and if the marriage is null as to the party four years old, it must be so as to the more mature one of nine.'^ Yet when the husband has attained the age of seven, nine is in law a woman's age "to deserve dower."* If she is married at seven, and the husband having land aliens it, and after the alienation she attains the age of nine years and then the husband dies, she is dowable of this land ; for though at the time of the marriage she was not dow- able absolutely, she was conditionally ; that is, dowable if she should reach the age of nine before the death of her husband.^ § 579. Children Legitimate or not. — The question of the legit- imacy of the children of these inchoate marriages is different. One born of a married woman is illegitimate if the husband could 1 Swinb. Spousals, 27, 28, 40, 228 ; ante, « Ante, § 571. § 356. « Ante, § 575. 2 Com. Dig. Baron & Feme, B. 5 ; 7 See post, § 700. Hnbback on Succession, 272. 8 Cq. Lit. 786. 3 Co. Lit. 78 6; Swinb. Spousals, 28. » Co. Lit. 33 a. * Co. Lit. 33 a. And see Grey's Case, 3 Dy. 368 6, 369 a, 24T § 581 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. not be the father ; ^ " as, if the husband be but eight years old, or under the age of procreation." ^ And probably, whenever he is under fourteen, he is to be presumed, prima facie at least, or even conclusively, incapable of becoming a parent.* § 680. Void or Voidable — (inchoate). — According to the mean- ings of terms in departments of the law not matrimonial,* and even as considerably used in this department, beyond question the marriage treated of in this chapter is, w'here the parties are over seven years of age, voidable and not void.^ Still the impediment is not canonical ; ^ and in courts whose forms of expression are taken from the ecclesiastical law of England, this marriage is commonly spoken of as void.'' We have seen that it is truly so when either of the parties is below seven years.® When they are over seven, it appears not to differ materially from the marriages known in the ecclesiastical law as voidable on account of canon- ical impediments ; except that the latter can be avoided only by judicial sentence, while the former may, by the parties themselves, without sentence. And Ayliffe says that this marriage is " not void, but only voidable;"^ and so, we may conclude, it should with us be described ; though no objection lies to the language of Coke, who calls it an " inchoate and imperfect marriage." i* § 581. Common Law with us. — The reader who has consulted the foot-notes has observed that most of the authorities cited to the foregoing sections are English, and that largely they are of early dates. Still there is no ground for doubt that the doc- trines thus stated are in a general way common law in our mod- ern courts, transmitted to this country, and enforceable in our State tribunals, except as changed by statutes. Not otherwise, within the author's observation, have they ever been regarded by our courts.^^ And still, not questioning this general doctrine, we may doubt whether, conceding it to have been once possible in England for a boy four years old, dying, to leave a widow dow- > Lomax v. Holmden, 2 Stra. 940 ; « Ante, § 261, 265, 267, 279. Foxcroft's Case, 1 Rol. Abr. 359; St. ' EUiott «. Gurr, 2 Phillim. 16, 1 Eng. George v. St. Margaret, 1 Salk. 123 ; Piatt Ec. 166, 168 ; ante, § 267, 284, 285. V. Powles, 2 M. & S. 65, 68; Eex v. Luffe, 8 Ante, § 571. 8 East, 193, 200. 8 Ayl. Parer. 361. 2 Co. Lit. 244a. 1° Co. Lit. 33a; Warwick v. Cooper, 8 1 Woodd. Lect. 234, and note. 5 Sneed, 659. 1 Ante, § 254 et seq. » Ante, § 574, 576, 577; Warwick v. 5 Ante, § 291. But see Shafher v. S. Cooper, 5 Snebd, 659. 20 Ohio, 1. 248 CHAP. XIX.J AGE OP THK PARTIES. § 682 able of his lands,^ any court will adjudge the same thing in this. country. For, as will be explained in the next chapter, to create any marriage there must be a mental capacity, which, in reason, is not attainable at the age of four. And not impossibly a like observation may be applicable to some other of the early English doctrines. Now, — II. The Statutes and their Effect. § 582. Age of Consent. — While, in some of our States, the common-law age of consent — namely, fourteen and twelve ^ — is permitted still to prevail,^ in others it has been enlarged by stat- utes. Their terms differ ; but plainly they should be interpreted, when possible, in accordance with the common law,* as merely substituting the statutory ages for fourteen and twelve, and leav- ing the connected doctrines to stand as before. In this way, for example, were construed the following words : " A man under the age of seventeen, and a woman under the age of fourteen years, are incapable of contracting marriage." * And Brickell, C. J., ob- served, that by thus enlarging "the age of consent from that fixed by the common law — of twelve in females and fourteen in males — to fourteen in females and seventeen in males," the stat- ute " serves the purpose of its enactment." ^ So likewise dealt the North Carolina Court with the words " females under the age of fourteen, and males under the age of sixteen years, shall be incapable of contracting marriage;" holding valid, nevertheless, the marriage of parties under those ages, when their cohabita- tion had continued aft,er the ages were passed, as at the com- mon law. Said Pearson, C. J. : " In the opinion of this court, the only effect of the statute was to make sixteen instead of four- teen years in respect to males, and fourteen instead of twelve years in respect to females, the ages at which the parties respec- tively were capable of making a perfect marriage, leaving the rule of the common law unaltered in all other respects." '' So also, in Iowa, the provision " that male persons of the age of eighteen years, and female persons of the age of fourteen years, 1 Ante, § 578. « Beggs v. S. 55 Ala. 108, 113. 2 Ante, § 568. ' Koonce v. Wallace, 7 Jones, N. C. ' Warwick v. Cooper, 5 Sneed, 659. 194, 196. And see Williamson v. Wil- * Ante, § 165, 166. liams, 3 Jones Eq. 446. « Alabama Code of 1886, § 2309. 249 § 585 MAREIAGE CONSTITUTED, NULLITIES. [BOOK III. . . . may be joined in marriage," was held not to alter the com- mon law ; but infants below these ages, and within the common- law ages of consent, might still marry.^ These interpretations may be deemed to have established the doctrine, leaving other like provisions to the operation of the same rule.^ § 683. Annulling Marriage. — By a statute in Michigan : " In case of a marriage solemnized when either of the parties was under the age of legal consent, if they shall separate during such nonage, and not coliabit togetlier afterwards, . . . the marriage shall be deemed void without any decree of divorce or other legal process." Thereupon the court deemed this to be an original pro- vision, not necessarily to be interpreted by the common law. And the majority held that where a man marries a girl below the age of consent, fixed by another statute at sixteen, the marriage is not void unless the parties separate by mutual consent before she reaches that age, or unless she refuses to continue the cohabita- tion after reaching that age. Campbell, J., dissenting in part, was of opinion that a separation before the age of consent is effectual, though the two do not concur therein. " We are all agreed," said Cooley, J., " that if the separation takes place with consent of the party under age, and cohabitation is not resumed after such party attains the age of consent, the marriage is thereby rendered null ; while we are not agreed that the party who is of competent age can by his own act annul it."^ § 584. " Contracting Marriage." — A statute declared males of eighteen and females of sixteen to be capable of " contracting marriage." And it was held not to give minors above those ages any new power to bind themselves by the executory agreement to marry. Tlie " contract " meant was that by which the matrimonial status is assumed.* § 585. " Want of Age or Understanding " — is an expression found in some very ill-considered statutes,^ — to be further men- tioned in the next chapter.^ 1 Goodwin v. Thompson, 2 Greene, Shafher w. S. 20 Ohio, 1, — a case deemed Iowa, 329. See also Parton v. Hervey, in Beggs v. S. opposed to the great weight 1 Gray, 119; Bennett v. Smith, 21 Barb, of authority. 439; Fitzpatrickw. Fitzpatrick, 6NeT. 63; » P. a. Slack, 15 Mich. 193, 199. See P. V. Slack, 15 Mich. 193. P. v. Bennett, 39 Mich. 208. 2 Ante, § 289 ; Beggs v. S. 55 Ala. 108 ; * Frost v. Vought, 37 Mich. 65. Frost !). Vought, 37 Mich. 65. The con- « Ante, § 167. trary was rather assumed than decided in * Post, § 633-644. 250 CHAP. XIX. j AGE OP THE PARTIES. § 586 § 586. The Doctrine of this Chapter restated. We shall see in the next chapter that there can be no marriage without mental capacity. But the degree of such capacity need not be the highest, else all but the very first people in the com- munity would be doomed to celibacy. Tlie complete mental capa- bility, which the age of twenty-one is recognized as bringing, is not required in the executed contract of marriage, but it is iu the executory. At the first impression this distinction would seem to be in abnegation of common reason ; because an injudicious promise to marry is less harmful to the one making it than an unfortunate marriage. But this sort of reasoning leaves out of view the grave public and collateral private interests involved in matrimony. No special public harm is done when a minor prom- ises marriage, then breaks his promise and pleads his nonage. But it would be a public scandal, an enormous abscess on the body politic, and a private curse to permit minors to come to- gether in actual matrimony, then leave each other because of their nonage, then pair off differently, and continue the process until they were twenty-one years old. Hence the somewhat tech- nical rules of the common law, fixing different ages for different steps in matrimony, — rules in some degree modified in a part of the States by statutes. A repetition of the rules here does not appear necessary. 251 § 589 MARBIAGB CONSTITUTED, NULLITIES. [BOOK III CHAPTER XX. THE MENTAL CAPACITY, OR THE NULLITY PROM INSANITY. § 587. Introduction. 588-594. In General of Doctrine. 595-601. Degree and Test of Insanity. 602-613. Some Particular Questions. 614-626. Affirming and Disaffirming Marriage. 627-632. Void and Voidable. 633-644. lU-considered Statutes. 645. Doctrine of Chapter restated. § 587. How Chapter divided. — We shall consider, I. In Gen- eral of the Doctrine ; II. The Degree and Test of the Insanity ; III. Some Particular Questions ; IV. The Affirming and Dis- affirming of the Marriage ; V. The Marriage as Void or Void- able ; VI. Ill-considered Statutes. I. In General of the Doctrine. § 588. Doctrine defined. — The doctrine of this chapter is, that since there can be no marriage without the consent of both the parties combining,^ there can be none when one of them is men- tally incapable of giving the matrimonial consent.^ § 589. Compared with Ordinary Contracts. — In a general way, this is the same doctrine which governs ordinary contracts.^ But 1 Ante, § 237, 295, 299. True v. Ranney, 1 Fost. N. H. 52, 53 Am. 'Portsmouth v. Portsmouth, 1 Hag. D. 164; Ward d. Dulaney, 23 Missis. 410 ; Ec. 355, 3 Eng. Ec. 154, 156; Jenkins v. Keyes v. Keyes, 2 Eost. N. H. 553; Kaw- Jenkins, 2 Dana, 102, 26 Am. D. 437 ; don v. Eawdon, 28 Ala. 565 ; Cole v. Cole, Cmmp V. Morgan, 3 Ire. Eq. 91, 40 Am. 5 Sneed, 57, 70 Am. D. 275 ; Clement v. D. 447 ; Eoster v. Means, 1 Speers Eq. Mattison, 3 Kieh. 93 ; Middleborough v. 569, 42 Am. D. 332 ; Fornshill v. Murray, Rochester, 12 Mass. 363 ; Christy i'. Clarke, 1 Bland, 479 ; Turner v. Meyers, 1 Hag. 45 Barb. 529. Con. 414, 4 Eng. Ec. 440 ; Browning v. » Bishop Con. § 956, 962 ; Insurance Reane, 2 Phillim. 69, 1 Eng. Ec. 190; Co. v. Rodel, 95 U. S. 232. Legeyt v. O'Brien, Milward, 325, 333; 252 CHAP. XX.] MENTAL CAPACITY, INSANITY. § 592 as the mind may be insane for some purposes and not for others,^ and as the contract which forms the threshold to matrimony does not put in exercise altogether the same mental faculties as a bar- gaining about lands or goods, this contract of present marriage requires a special examination. Besides, there are also other differences whicli,win be developed as we proceed. § 590. Ancient Error. — There was a time when the marriage of insane persons was deemed valid, — a doctrine, says Lord Stowell, "founded, I presume, on some notion that prevailed in the Dark Ages, of the mysterious nature of the contract of mar- riage, in which its spiritual nature almost entirely obliterated its civil character." ^ "A strange determination," observes Black- stone, " since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to anything. And therefore the civil law judged much more sensibly when it made such deprivations of reason a previous impediment ; though not a cause of divorce, if they happened after marriage. And modern resolutions have adhered to the reason of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, was absolutely void." ^ § 591. Sort of Unsoundness. — It is immaterial what is the form of the defect of reason, or by what distinctive name — such as idiocy, lunacy, mental weakness, -or the like — it is known.* Tor those who have not sufficient understanding to deal with a particular affair of life, whether from derangement of the intel- lect or from its equivalent in feebleness, cannot bind themselves by a contract relating to such affair. In this aspect, the rule is the same in matrimony as in any other bargaining.^ And still, — § 592. Degree and Form of Insanity. — As in substance just stated,^ the judges should and do apply what in terms are some- what different tests of insanity, according as the inquiry arises in 1 Bishop Con. § 963 ; 1 Bishop Crim. 3 j 3], Com, 438, 439 ; Crump v. Mor- Law, § 396. gan, 3 Ire. Eq. 91, 96, 40 Am. D. 447. 2 Turner v. Meyers, 1 Hag. Con. 414, * Bishop Con. § 958. And see Ball v. 4 Eng. Ec. 440, 441. Singularly enough, Mannin, 3 Bligh, N. s. 1, 21, 1 Dow & C. even some American judges appear to 380, 391 ; Baxter v. Portsmouth, 5 B. & have entertained the exploded notion C. 170; Ex parte Barnsley, 3 Atk. 168, that at the common law marriage cele- 172; In re Vanauken, 2 Stock. 186; Way- brated between insane persons is valid, mire v. Jetmore, 22 Ohio St. 271. Hamaker v. Hamaker, 18 lU. 137, 65 Am. ^ Post, § 600 ; Foster v. Means, 1 D. 705 ; Park u. Barron, 20 Ga. 702, 65 Speers Eq. 569, 574, 42 Am. D. 332. Am. D. 641. ° Ante, § 589. 253 § 594 MARRIAGE CONSTITUTED, NULLITIES. ' [BOOK III. one department or another of our law.^ For the question in each instance is, whether or not the mind was capable of doing the particular thing in controversy. And it may have been capable of one thing, yet not of another, — a distinction requiring special carefulness in its application. How far it may be carried is prop- erly, in most instances, a question, not of legal science, but of medical.2 Thus, — § 593. For Contract — Will — Crime. — The capacity to make a will is deemed not to be exactly the same as that for entering into an ordinary contract, and neither of these is the exact coun- terpart of the capacity to commit a crime.^ So, — § 594. Varying as to Like Things. — As applied to cases of a like class, the rules and tests to determine the question of sanity or insanity vary with the circumstances, if, indeed, each set of cir- cumstances does not require its own particular tests and rules.* Said Sir Herbert Jenner Fust, in 1843 : " It has frequently been attempted to furnish some general rules which might serve as guides to courts of law in the investigation and decision of cases of this description ; but all endeavors to do so have failed ; every case has some distinguishing features ; each case must be gov- erned by its own peculiar circumstances."'^ And since these words were spoken, the enlightenment of the world, professional and non-professional, including the two professions of law and medicine which deal with the differing conditions of the mind, has progressed until it has learned that the phases of insanity, idiocy, and the like (the term " insanity," or " unsound mind," or " want of mental capacity," covering each alone the whole idea), are as numerous as those of the sound mind. There is, therefore, no one test applicable to all forms of mental unsoundness, but each 1 1 Bishop Crim. Law, § 396 ; Reg. v common-sense view of the matter, the law Hill, 2 Den. C. C. 254. applies different rules or tests under dif- ^ See expositions in 1 Bishop Crim. ferent circumstances. It tries to ascer- Law, § 377, 378, 383, 387, 388. tain whether a person, alleged insane, is 2 Smith V. Tebbitt, Law Rep. 1 P. & such in respect to the particular question M. 398, 400 ; Hancock v. Peaty, Law Kep. which is being investigated. A man may 1 P. & M. 335, 340, 341 ; Kinne v. Kinne, be of unsound mind in one respect, and 9 Conn. 102, 105, 21 Am. D. 732 ; 1 Bishop not in all respects. He may have mental Crim. Law, § 396. And see Banks v. competency to make one contract and not Goodfellow, Law Rep. 5 Q. B. 549, and another. And an insane man may make various cases, some of them American, certain contracts beneficial to himself." there cited ; Lowder v. Lowder, 58 Ind. St. George v. Biddeford, 76 Me. 593, 596. 538. 6 Mndway u. Croft, 3 Curt. Ec. 671, * In the language of Peters, C. J. in 675. a Maine case, — "In accordance with a 254 CHAP. XX.J MENTAL CAPACITY, INSANITY. § 596 case must proceed more or less on a consideration of its particu- lar facts.^ Eeturning now specifically to marriage, let us proceed to consider, — II. The Degree and Test of the Insanity. § 595. Business Test. — Notwithstanding the difference already pointed out,^ the judges often, yet not with complete accuracy, slate the rule to be, to consider whether or not the party was capable of making a contract.^ " If the incapacity be such," says Sir John Nicholl, " that the party is incapable of understanding the nature of the contract itself, and incapable from mental im- becility to take care of his or her own person and property, such an individual cannot dispose of his or her person and property by the matrimonial contract, any more than by any other contract. The exact line of separation between reason and incapacity may be difficult to be found and marked out in tlie abstract ; though it may not be difficult, in most cases, to decide upon the result of the circumstances." * And Lord Stowell has observed : " Madness may subsist in various degrees ; sometimes slight, as partaking rather of disposition or humor, which will not incapacitate a man from managing his own affairs, or making a valid contract. It must be something more than this, — something which, if there be any test, is held, by the common judgment of mankind, to affect his general fitness to be trusted with the management of liimself and his own concerns."^ § 596. otherwise compared with Business. — In one of our own courts it was said : " What degree of mental imbecility, what ex- tent of intellectual alienation, will suffice to annul a contract of marriage, it is difficult to pronounce ; certainly mere weakness of intellect, or even great eccentricity of conduct, unless it reaches a point that evinces inability to comprehend the subject-matter of the contract, will not suffice. And every principle of sound pol- 1 1 Bishop Crim. Law, § 379, 381-396. * Browning v. Reaue, 2 Phillim. 69, 70, 2 Ante, § 589, 592. 1 Eng. Ec. 190, 191. ' Ante, §591; Anonymous, 4 Pick. 32 ; ^ Turner v. Meyers, 1 Hag. Con. 414, Middleborough v. Rochester, 12 Mass. 363; 4 Eng. Ec. 440, 442. In Foster v. Means, Page on Div. 192, 193; Cole v. Cole, 5 1 Speers Eq. 569, 42 Am. D. 332, is a Sneed, 57, 70 Am. D. 275 ; Atkinson t: statement of facts held to evidence such Medford 46 Me. 510. imbecility as disqualifies the party to con- tract matrimony. 255 § 598 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. icy and humanity admonishes us that a contract so important in its social relations, and bearing so materially on the peace and happiness of families, should not be set aside upon slight grounds, or on less proof than would suffice to annul contracts less sacred and important in their nature." ^ On the other hand, — § 597. Less Capacity than for Business. — The opinion seems sometimes to have been entertained, that one may bind himself in marriage with less of mental capability than is required for an ordinary contract. As once observed judicially : " It appears to us, from the examination of Mrs. Frederic [the alleged insane person] by the commissioners, that another inquisition is not necessary. The answers given by her certainly show some un- derstanding, although a defective one, and these afford higher evidence of the true state of her mind than the opinions of any witnesses on the subject could do. There may possibly be so much imbecility as to render her incapable of making contracts which would bind her estate, but this imbecility does not appear to exist in so great a degree as to incapacitate her from contract- ing marriage, which seems to be the chief object of the peti- tioner." 2 The consequence of which would seem to be, that a woman not mentally competent to bestow on a man her goods, may do it by adding thereto her person and her lands. But, contrary to this, — § 598. More Capacity — (Mental Health or Disease). — At a later date. Lord Penzance in an English case said : " It was strenuously argued on the part of the respondent that a marriage duly celebrated was not to be lightly annulled, and it was rather hinted than asserted that a less degree of sanity would be suffi- cient to make a marriage valid than would be required for the making of a will, and for some other purposes. But the court here has not, as in many testamentary cases, to deal with varie- ties or degrees in strength of mind, with the more or less failing condition of intellectual power in the prostration of illness, or the decay of faculties in extended age. The question here is one of health or disease of mind ; and, if the proof shows that the mind was diseased, the court has no means of gauging the extent of the derangement consequent upon that disease, or affirming the limits within which the disease might operate to obscure or divert the mental power. ... If any contract more than another is capable 1 Ward V. Dulaney, 23 Missis. 410, 4U, 415. 2 Ex parte Glen, 4 Des. 546, 549. 256 CHAP. XX.] MENTAL CAPACITY, INSANITY. § 600 of being invalidated on the ground of the insanity of either of the contracting parties, it should be the contract of marriage, — an act by which the parties bind their property and their persons for the rest of their lives." ^ § 599. These ConfUotins Views — are suggestive of the doubt whether the true doctrine does not lie outside of all of them. Though the woman gives away her property in marriage, and the man assumes therein new obligations of a pecuniary sort, these are only consequences, not marriage.^ The central idea of the con- tract which superinduces the marital status stands quite distinct from these collateral resultings. Marriage is the legal band around affections assumed to be already united, and the blending in law of two lives into one. And while it is in some degree of the head, it is primarily and chiefly of the heart. Hence, in rea- son, the test question should be, whether or not the parties have the capability of mind required for duly comprehending this union. So that, — § 600. True Doctrine. — Assuming this to be the correct idea of the subject-matter of the contract, none of the foregoing enun- ciations from the bench are precisely accurate ; but the true view, in principle, is as follows. The mental incapacity which disquali- fies one for crime is such as renders it impossible he should entertain the criminal intent.^ The disqualifying incapacity for making a deed, a will, or a bill of sale of personal property, is such as puts it out of the power of the person to exercise a dispos- ing mind in respect of the particular thing.^ The question is not altogether of brain-quantitj/, or of brain^quality, in the abstract ; but it is, whether or not the mind could and did act rationally regarding the precise thing in contemplation. In a marriage case it is, whether the alleged insane person acted rationally regarding marriage and the particular one in dispute ; not, indeed, whether his conduct was wise, but whether it proceeded from a mind sane as respects the thing done ; though, as to this, a broad degree of general insanity would of itself, without special inquiry into the individual transaction, cover the particular ground. And ^ Hancock v. Peaty, Law Eep. 1 P. & be, whether, at the time of the act, the M. 335, 340, 341. person doing it had the ability to nnder- * Ante, § 15. stand in a reasonable manner its nature ' 1 Bishop Crira. Law, § 376, 381. and effect. Darren v. White, 15 Stew. * Bishop Con. § 962-964. Or, in more Ch. 569. general terms, the test may be stated to VOL. I. — 17 257 §601 MARRIAGE CONSTITUTED, NULLITIES. [book III. there are some authorities which seem to give countenance to this view.^ And — § 601. Nature and Duties. — Not differing greatly from this doctrine, except in mere form of words, we find it laid down in a very modern English case, with reference to the particular facts in controversy, that the sanity which will sustain a marriage is the " capacity to understand the nature of the contract, and the duties and responsibilities which it creates." And the learned judge added : " The contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all others," — nothing here appearing about bargaining away the property ^ and managing an estate.^ And still the question re- turns whether, not quarrelling with this defining, it is practically as accurate and efficacious a test as that derivable from the last two sections. Practically, persons coming together in true mar- 1 See True v. Eanney, 1 Post. N. H. 52, 53 Am. D. 164; W^ard v. Dulaney, 23 Missis. 410, extracted from ante, § 596 ; Harrod v. Harrod, 1 Kay & J. 4, 14 ; Doe V. Roe, Edm. Sel. Cas. 344. In a Delaware case, Houston, J. observed: " It would be dangerous, perhaps, as well as difHcult, to prescribe the precise degree of mental vigor, soundness, and capacity essential to the validity of such an en- gagement ; which, after all, in many cases depends more on sentiments of mutual esteem, attachment, and affection, which the weakest may feel as well as the strongest intellects, than on the exercise of a clear, unclouded reason, or sound judgment, or intelligent discernment and discrimination, and in which it differs in it very important respect from all other civil contracts." p. 319. Elzey v. Elzey, 1 Houst. 308, 319. Perhaps the following cases, not matrimonial, may be helpful: Aiman v. Stout, 42 Pa. 114; Hovey v. Hobson, 55 Me. 256. 2 Ante, § 599. 8 Durham v. Durham, 10 P. D. 80, 82, Sir J. Hannen, President. Further to ex- plain this learned judge's views, I quote : "All the authorities bearing on the subject have been brought to my notice ; but I do not think it necessary to review them, as 258 I am of opinion that every case of this kind must be decided upon its own facts. Nor do I consider that it would be useful to borrow from my predecessors, or to attempt myself to form any exact "defi- nition of what constitutes soundness of mind. I accept for the purposes of this case the definition which has been sub- stantially agreed upon by the counsel to whom I have to express my obligations for the very able assistance they have given me ; namely, a capacity to understand the nature of the contract, and the duties and responsibilities which it creates. It is to be observed, however, that this only conceals for a moment the difficulties of the inquiry, for I have still to determine the meaning to be attached to the word 'understand.' If I were to attempt to analyze this expression, I should encoun- ter the same diificulties at some other stage of the investigation with reference to some other phrase, and I should still have to determine, on a review of the whole facts, whether the respondent came up to the standard of sanity which I must fix in my own mind, though I may not he able to express it." A. J>. 1885. And see Cannon v. Smalley, 10 P. D. 96, 98; Hun- ter V. Edney, 10 P. D. 93, 95. CHAP. XX.] MENTAL CAPACITY, INSANITY. § 604 riage, not in a mere marriage for convenience, say together in effect, " We so love each other that we bind ourselves in law to continue this love, and live together in the way of husband and wife, in mutual dependence and support, to the exclusion of all adverse loves and doings, during our joint lives." If this is sanely done, it is marriage; insanely, it is not. And any added description of capacity for a mental process which, in fact, is but rarely gone through with by anybody, is believed to be more con- fusing, especially to a jury, than helpful. III. Some Particular Questions. § 602. Under Commission of Lunacy. — In the second volume, where we consider the pleading, practice, and evidence, we shall see what is the effect of a commission of lunacy in mere evidence. As to the law, it was in England declared, in 1742, by 15 Geo. 2, c. 30, that the marriage of one under a commission of lunacy shall be " null and void to all intents and purposes whatsoever." This statute is of a date too recent to be common law with us. By its necessary operation, the marriage of a person under such commission was, while the commission remained unrevoked, void, though he had in fact recovered his reason, or was in a lucid in- terval.^ The statute was extended to Ireland and in some degree amended by 51 Geo. 3, c. 37. In the absence of an enactment like these, — § 603. Lucid Interval. — The marriage of an insane person during a lucid interval is good. It was so in England prior to the statutes ; ^ hence it is so now at common law in our States ; the question being whether or not, at the time of the marriage, both parties were capable of consenting.^ On the other hand, — § 604. Temporarily Insane. — The marriage of one habitually sane, celebrated in a period of temporary insanity, is invalid.* For in such a case the mind can no more consent than if the insanity was habitual. Hence, — 1 Turner v. Meyers, 1 Hag. Con. 414, 2 ghgif. ji^r. & Div. 197; Turner r. 4 Eng. Ec. 440, 442 ; Shelf. Mar. & Div. Meyers, 1 Hag. Con. 414, 4 Eng. Ec. 440, 191, 197. See Cartwright v, Cartwright, 442. 1 Phillim. 90, 1 Eng. Ec. 47 ; Wheeler v. 3 Ante, § 588. Alderson, 3 Hag. Ec. S74, 599, 5 Eng. Ec. ^ Legeyt v. O'Brien, Milward, 325; 211, 223; Borlase v. Borlase, 4 Notes Cas. Parker v. Parker, 2 Lee, 382, 6 Eng. Ec. 106, 108; Grimani v. Draper, 12 Jur. 925. 165; Smith v. Smith, 47 Missis. 211. 259 § 607 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III, § 605. - Postnuptial Insanity. — Insanity occurring subsequently to the nuptials, in one who was sane when they transpired, does not impair their original validity, nor generally is it made ground for divorce.^ Yet, as mere evidence, on an inquiry into the con- dition of the mind at the time of the marriage, manifestations of mental disorder immediately following the ceremony may be im- portant. And Dr. Ray considers that there are cases of this kind extremely embarrassing.^ § 606. Suicide, — committed directly after the marriage, is not 'alone sufScient evidence of insanity to avoid it ; indeed, the broad doctrine seems to have been maintained that it is no evidence.^ The true view probably is, that standing quite alone it is inad- missible, but in many circumstances it may be good in evidence if connected with other facts.* For it sometimes proceeds from the insane mind, yet it is as often a wickedness or folly of the sane. § 607. Intoxication as Insanity. — There is no just ground for distinguishing marriage from ordinary contracts in respect of in- toxication, which, if so deep as to render the mind non compos for the occasion, is treated as temporary ^ insanity, disqualifying for marriage or any other bargaining, yet otherwise of intoxica- tion to a less degree.^ It was at one time held, in respect to con- tracts generally, that intoxication unmingled with fraud was no excuse, and created no privilege in avoidance of them ; ^ and the 1 Baker v. Baker, 82 Ind. 146; Parnell standing alone. And see Brooks v, Bar- V. Parnell, 2 Hag. Con. 169; Page on rett, 7 Pick. 94; Pettitt v. Pettitt, 4 Div. 185, note; Shelf. Mar. & Div. 190; Humph.. 191. In a Tennessee case, Reese, Wertz y. Wertz, 43 Iowa, 534; Powell «. J. observed : "A will prepared in view of Powell, IS Kan. 371, 26 Am. R. 774; suicide, and of course under the influence Hamaker v. Hamaker, 18 111. 137, 65 Am. of the morbid and unhappy feelings lead- D. 705 ; Lloyd v. Lloyd, 66 111. 87 ; Curry iug to that catastropbe, must, where its V. Curry, 1 Wils. Ind. 236. validity is in question, be largely affected 2 Ray Med. Jnrisp. Insan. 2d ed. § 201. by that circumstance." Pettitt v. Pettitt, See Wheeler v. Alderson, 3 Hag. Ec. 574, supra, p. 193. 5 Eng. Ec. 211. 4 Wolff <-■. Connecticut Mut. Life Ins 3 McAdam v. Walker, 1 Dow, 148, 180 ; Co. 2 Elip. 355. Crura V. Thornley, 47 111. 192, 196. And « Ante, § 604. see Burrows i<. Burrows, 1 Hag. Ec. 109, « Bishop Con. § 979-986; Clement v. 3 Eng. Ec. 49 ; Chambers v. The Queen's MaJttison, 3 Rich. 93 ; Legeyt v. O'Brien, Proctor, 2 Curt. Ec. 415, 7 Eng Ec. 151 ; Milward, 325; Gore v. Gibson, 13 M. & 1 Eras. Dom. Eel. 46 ; Coffey v. Home W. 623 ; Dixon v. Dixon, 7 C. E Green, Life Ins. Co. 44 How. Pr. 481, 3 Jones & 91. And see Menkins v. Lightner, 18 111. S. 314 ; Weed v. Mutual Benefit Life In- 282. surance Co. 70 N. Y. 561. Probably the ' 2 Kent Com. 451, and the authorities better rule is to receive the evidence of there cited ; Johnson v. Medlicott, 3 P. suicide when offered in connection with Wms. 130, note ; Cooke v. Clayworth, 18 other testimony, but to reject it when Ves. 12. 260 CHAP. XX.] MENTAL CAPACITY, INSANITY. § 608 rule in equity seems still to be, that the court will not assist a contracting party on the mere 'ground of his intoxication, where no unfair advantage was taken.i But ithe settled doctrine of modern law is, that since a person to make a valid agreement must have an agreeing niind,^ a contract entered into by one so intoxicated as not to know what he is about is of no validity. The better opinion holds it unnecessary to charge the defendant with fraud, in order to produce this legal consequence;^ though some of the cases go to the extent, that he must be connected with the intoxication,* or at least must have taken some unfair advantage of the other's situation.^ In Indiana, Sullivan, J., ob- served : " Drunkenness of itself merely, unless fraud be practised, will not avoid a contract ; but if the party be in such a state of intoxication that he is for the time deprived of reason, the con- tract is void." '^ Further concerning which, — § 608. Why — Reasons. — This Seeming lack of absolute clear- ness in our civil jurisprudence is probably traceable to misappre- hensions of the criminal law ; it being often said, in terms unqualified, that drunkenness, however deep, furnishes no excuse for crime. And courts have sometimes endeavored to apply the same or some analogous rule to contracts. But, accurately stated, the rule is not so in the criminal law. To constitute a crime, there must be evil in the intent. Yet if a man intends one wrong and unintentionally does another, he is ordinarily guilty of the wrong done the same as though he had meant it. This is the more frequent rule in criminal jurisprudence. So, it being a wrong to drink to intoxication, if a man intentionally does it, 1 2 Kent Com. 452, 6th ed. note b. » 2 Kent Com. 452 ; Chitty Con. Per- See, however, Clifton v. Davis, 1 Parsons, kins's ed. 140, note ; Story Con. § 27 ; 31. And see Sliaw v. Thackray, 23 Eng. Smith on Contracts, 233 and note ; Bishop L. & Eq. 18. Con. ut supra; Barratt v. Buxton, 2 ^ Lord Ellenborough, in Pitt v. Smith, Aikens, 167; Fentonw. Holloway, 1 Stark. 3 Camp. 33; Gore v. Gibson, 13 M. & W. 126; Bennett u. S. Mart. & Yerg. 133; 623; Clifton u. Davis, 1 Parsons, 31. So, Cornwell v. S. Mart. & Yerg. 147; Cuin- on an indictment for an attempt to commit mings v. Henry, 10 Ind. 109. suicide, the court observed to the Jury: * Woods y. Pindall, Wright, 507 ; Bar- "If the prisoner was so drunk as not to ney v. Dimmitt, Wright, 44. And see IS. know what she was about, how can you v. Turner, Wright, 20, 30; S. v. Thomp- find that she m^en(/«(i to destroy herself ? " son, Wright, 617, 622; 2 Greenl. Ev. and she was accordingly acquitted. Reg. § 374; Calloway w. Witherspoon, 5 Ire. V. Moore, 16 Jur. 750; and see the obser- Eq. 128. vations on this case in 1 Am. Law Reg. * Hutchinson u. Tindall, 2 Green Ch. 37. See also 1 Bishop Crim. Law, § 400- 357. 416. ^ Jenners v. Howard, 6 Blackf. 240. 261 § 610 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. then in his delirium or oblivion commits a crime while he is too drunk to intend anything, he is punishable the same as though he meant it. But as an exception to this doctrine, there are crimes of such special nature that they are committed only when the specific wrongful act is meant. And drunkenness, so deep as to incapacitate the mind for the specific intent, will excuse any such crime.^ Now, to constitute marriage, each party must entei'tain the specific intent to marry the particular person.^ So that if we apply to it the strict rule of the criminal law, one who simply means to get drunk and does it, cannot, when his drunkenness is so deep as to disqualify him for the matrimonial capacity as described in our last sub-title, and as consisting of the specific intent thus to be united in matrimony with the particular person, enter into a valid marriage. Further of — § 609. Marrying while Drunk. — Applying the rule of marriage capacity already developed, the courts should administer the law of temporary insanity in these cases of intoxication the same as in any other. For the incapacity from drunkenness is not judi- cially looked upon as permanent insanity, but as intermittent, ceasing with the exciting cause.^ Some tribunals seem inclined to require a very profound drunkenness to avoid the marriage.* The Scotch Court adjudged the assumed marital relation, entered into by mutual promises, void, where the woman was shown to have been in such a state of intoxication as to be incapable of giving a valid consent.^ But it is difficult to state the facts of particular cases in a way to afford much practical help, however correctly decided we assume them to liave been. The principle must de- termine the result in the new cases, and every future case will be new. § 610. Deaf and Dumb — Blind. — One deaf and dumb maybe competent to contract matrimony. He may enter into it by signs.^ And the like principle applies to a blind person. 1 For a farther explanation, with illus- ^ Johnston v. Brown, 2 Scotch Sess. trations, see 1 Bishop Crim. Law, § 287, Cas. new ed. 437 ; s. c. where the facts 313, 320, 323-336, 346, 397-416, and other are more fully reported, Ferg. Consist, places. Law, Rep. 229. This case appears to cou- 2 Ante, § 295, 296, 299. tain also some of the elements of fraud. 3 Wheeler v. Alderson, 3 Hag. Ec. 574, ^ Dickenson u. Blisset, 1 Dick. 268 ; 5 Eng. Ec. 211; 1 Fras. Dom. ReL 48; Elyot's Case, Cart. 53; Brower i). Fisher, Shelf. Mar. & Div. 199. See Elzey c. 4 Johns. Ch. 441 ; Harrod v. Harrod, 1 Elzey, 1 Houst. 308. Kay & J. 4 ; 1 Fras. Dom. Eel. 48. 1 Eobliny. Koblin, 28 Grant, U. C. 439. 262 CHAP. XX.J MENTAL CAPACITY, INSANITY. § 613 § 611. Weak inteUeot. — The intellect may be very weak, not absolutely free from derangement, while yet not to an extent dis- qualifying the person to contract matrimony ; for the disorder or feebleness, to have this effect, must have reached a standard magnitude.^ But — § 612. Fraud on 'Weak Intellect. — The cases oftenest occurring are where partial insanity, or great weakness of intellect, is cir- cumvented by fraud.2 Such a case was the Earl of Portsmouth's ; who, being of weak and somewhat disordered mind, was led by the artifice of his trustee and solicitor, whose influence over him was great, into a marriage with the latter's own daughter. The marriage was declared void.^ And in another case of the like nature, a man of forty contrived to bring about, between himself and a woman of seventy, — a drunkard, with considerable prop- erty, which he sought to secure, — a marriage without a settle- ment, or the knowledge of her friends. It also was adjudged void.* Indeed, — § 613. Fraud and Insanity blending. — The two ingredients of fraud and insanity, thus blending, often in matrimonial causes produce by their united action a nullity which neither could alone effect. We considered this question in a preceding chapter.^ Let us here add, that, in all cases where the act of the party is sought to be set aside because of his weakness of mind, the court in- quires, among other things, whether under the circumstances the act was proper for and beneficial to him. Plainly, if found to have been such, the question of fraud is nearly excluded from the inquiry, and that of mental imbecility assumes a new aspect ; for as to the fraud, no injury was done, therefore none was proba- bly intended ; and as to the mental weakness, the particular act of the mind was not a weak one. Yet doubtless there might be a case of this general complexion, in which the marriage would still be adjudged void.® 1 Smith V. Smith, 47 Missis. 211. And « Ante, § 507. see Patterson v. P. 46 Barh. 625 ; In re ' See, as rather illustrating than sus- Vanauken, 2 Stock. 186 ; 1 Bishop Crim. taining the text, Birdsong v. Birdsong, 2 Law, § 376. Head, 289 ; Carr v. Holliday, 5 Ire. Eq. '^ See, as illustrative, Perkins v. Scott, 167 ; Cartwright v. Cartwright, 1 Phillim. 23 Iowa, 237. ' 90. In the case last cited, — a testamen- ' Portsmouth r. Portsmouth, 1 Hag. tary one, — the question being whether or Ec. 355, 3 Eng. Ec. 154. not the will of a person habitually insane * Browning v. Keane, 2 Phillim. 69, 1 was made in a lucid interval. Sir WiUiam Bug. Ec. 190< Wynne observed: "Now I think the 263 § 615 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. IV. The Affirming and Disaffirming of the Marriage. § 614. Doctrine defined. — The doctrine of this sub-title is, that, since mutual consent is the essence of marriage, without which it cannot exist,i no coming together in apparent marriage by a man and woman either of whom is mentally incapable of consenting, can make them husband and wife. And as all per- sons, at every instant of their lives, must be either married or single,^ such man and woman remain single, whatever forms of marriage transpire between them. But while, on the one hand, this apparent marriage does not render them married, on the other hand it does not disqualify them to intermarry. So that if they give the matrimonial consent afterward, while both are capable, they are married; if they then mutually dissent, or if one of them does, they are legally remitted back to the condition which they were in before any steps were taken. Nor is it differ- ent though in the particular State there are laws making pre- scribed formalities indispensable to matrimony. Such laws do not compel the formalities and consent to be simultaneous, though in the facts of most cases they are so. Consequently, if parties, one of whom is incapable, go through with a form of marriage to-day, and to-morrow or next year, during a period of restored sanity, continue their cohabitation or in any other way consent to the marriage, it is thereby made complete. § 615. Further as to which. — This statement of the doctrine purposely omits the terms " void " and " voidable," of multiform and uncertain meaning,^ in order that the law's true idea may not elude the apprehension of the reader. Some of the cases and statutes on the subject are confused, but the doctrine as thus stated rests on the firmest of all foundations, legal reason.* Moreover, strongest and best proof that can arise sumption in order to proTe a lucid inter- as to a lucid interval is that which arises val. Here is a rational act rationally from the act itself; that I look upon as done. In my apprehension, where yon the thing to be first examined, and if it are able completely to establish that, the can be proved and established that it is a law does not require you to go further." rational act rationally done, the whole p. 100. case is proved. What can you do more i Ante, § 237, 295, 296, 299. to establish the act ? because, suppose ^ Ante, § 238, 296, 299, 327. you are able to show the party did that ' Ante, § 254-256, and other places, which appears to be a rational act, and it * Ante, § 130. is his own entirely, nothing is left to pre- 264 CHAP. XX.] MENTAL CAPACITY, INSANITY. § 617 though among the judicial utterances there are more or less mis- conception and dissent, they and the direct decisions sustain on the whole what is thus laid down. To proceed with them, — § 616. Adverse to Confirmation. — Stumbling on the word " void," the North Carolina Court intimates in one case, without deciding, that since the marriage is void, and since by a rule in the law of contracts there can be no confirmation of what is void,i no mutual recognition and cohabitation of the parties as husband and wife, after the return of reason, will cure the origi- nal defect, especially in localities where marriage is good only when solemnized according to a particular form. " A writer upon the law of marriage," they observe, referring to Poynter,^ " lays it down that when a marriage is void ipso facto, acqui- escence, long cohabitation, and issue, or the desire of the parties to adhere, cannot amend the original defect.^ In a case of alleged insanity at the time of the marriage, subsequent acqui- escence, during long or frequent periods of undoubtedly restored reason, would be cogent proof of competent understanding at the time of the marriage ; but assuming lunacy then to have existed, the rule of the author quoted seems to be sustained by the con- sideration that marriage is a peculiar contract, to be celebrated with prescribed ceremonies, and therefore subsequent acts, not amounting in themselves to a marriage, will not make that good which was bad in the beginning." * But the doctrine stated in our section before the last has nothing about " ratification." If it had, the word would have tlie meaning in which it sometimes is u^ed with reference to a void Sunday contract, " spoken of by the courts as susceptible of ' ratification ' on a subsequent week- day." ^ The void doing of a thing on one day does not obstruct its valid doing on another. On the other hand, — § 617. Good till Direct Suit avoids it. — There are authorities which seem to lay down the doctrine that, as Greeuleaf states it, " where the marriage is invalidated on the ground of want of consent, the subject must have been investigated and the fact established in a suit instituted for the purpose of annulling the marriage," ® or it will be practically treated as good, — thus ex- 1 Bishop Con. § 614. same way, observations in Ward v. Du- 2 Post, § 625. laney, 23 Missis. 410, 432, 433. 8 Poynter Mar. & Div. 157. ^ Bishop Con. § 542. ' Crump V. Morgan, 3 Ire. Eq. 91, 40 « 2 Greenl. Ev. § 464, note. He cites to Am. D. 447. And see, as tending the this proposition 2 Kent Com. 77 ; Wight- 265 § 620 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. eluding even the parol dissent spoken of in our defining. But in the reason of the law ^ tliere can be and is no such doctrine. It appears to have originated in a misapprehension of excel- lently judicious suggestions from learned men, that, for good order and as matter of propriety, a doubtful question of tliis sort ought to be decided, once for all, in a suit for nullity, and not be left open for constant litigation between third parties, leading to conflicting decisions. Because, — § 618. Nullity Suit. — Though, by the just doctrine, the mar- riage in these cases is null, suits for nullity directly between the parties are always allowed; and where a competent tribunal is thus called upon, and a case is made out, it has no discretion, but even a court of equity is compelled to proceed to the decree.^ The marriage, indeed, is just as much a nothing in law without the decree as with it ; but prudential reasons, other than strictly legal, may strongly indicate the propriety of the party's carrying the matter to the court for direct adjudication.^ Hence, — § 619. Compelling such Suit. — It is probably competent for any tribunal, before which a doubtful marriage of an alleged in- sane person is brought into litigation, if it sees that good order and public justice require, to compel the investigation of the ques- tion before itself or some other competent tribunal, should the needful parties be living, in a suit for nullity. Not always would a judicial order of this sort be judicious, but often it will be. Thus,— § 620. Suspending Case until. — Persons who claimed to be husband and wife brought, in North Carolina, their bill in equity against the wife's guardian for an account ; and among the pretences they averred, that the defendant relied on a fact of marriage which transpired between the wife and another man, previously to the one between the plaintiffs ; which prior marriage, the bill proceeded to declare, was void by reason of imbecility, &c., making tlie present marriage good. But the court declined to entertain, in this collateral way, the question of the invalidity of man y. Wightman, 4 Johns. Ch. 343. See * Ante, § 130, 615. also Middleborough v. Eochester, 12 Mass. ^ Crump w. Morgan, 3 Ire. Eq. 91, 40 363 ; Turner v. Meyers, 1 Hag. Con. 414. Am. D. 447 ; Hancock v. Peaty, Law Rej). I do not understand these authorities to 1 P. & M. 335; Powell v. Powell, 18 Kan. require the direct suit otherwise than for 371, 26 Am. R. 774. propriety and good order, — leaving the ' Kawdon v. Rawdon, 28 Ala. 565; marriage still to-be, both as to the parties Wightman v. Wightman, 4 Johns. Ch. and third persons, a nullity without it. 343. 266 CHAP. XX.] MENTAL CAPACITY, INSANITY. § 621 the former marriage ; and ordered the case to be " retained for further directions," that the plaintiff wife might meanwhile, if she saw fit, institute and carry on a suit to have such former mar- riage decreed void. Said Pearson, J.: "The plaintiff's counsel cited several authorities in support of the position that where nullity of marriage is incidentally put in issue in any proceeding before any tribunal, such tribunal has power to decide the ques- tion as necessarily involved in the exercise of its appropriate jurisdiction. Without entering upon this subject, it is sufficient to say, in the language of the court in Johnson v. Kincade,^ ' It is convenient and fit in respect to the decent order of society, the condition of the parties, and succession of estates, that the valid- ity of such a marriage should be directly the subject of judi- cial sentence.' And as the legislature has conferred sole original jurisdiction, in all applications for divorce, upon the superior courts of law and courts of equity, and pointed out the mode of proceeding and the rules and regulations to be observed, and required that the material facts charged in the petition or libel shall be submitted to a jury, upon whose verdict and not other- wise the court shall decree and authorize a decree from the bonds of matrimony or that the marriage is null and void, and after a sentence nullifying or dissolving the marriage all and every the duties, &c., in virtue of such marriage shall cease and determine, with a proviso as to the legitimacy of the children, we do not feel at liberty to decide a question of such grave importance as a thing collateral or incidental to an ordinary bill for an account, where the trial will be made without the intervention of a jury, upon depositions, which are usually taken in a defective and un- satisfactory manner." ^ It is not believed that the course of the court would have been different if there had been no statute in the terms stated ; and, not inconsistently with this disposition of the case, the same tribunal had previously spoken of this sort of marriage as too intensely null to be even susceptible of ratifica- tion.^ Again, — § 621. Legitimated Children. — Since legislation is competent to direct the course of inheritance, it may and sometimes does declare the children born from insane marriages to be legitimate. 1 Johnsou V. Kincade, 2 Ire. Eq. 470, Eq. 446, 447, 448. And see Stratford w. 474. Stratford, 92 N C. 297. 2 "Williamson v. Williamson, 3 Jones " Ante, § 616. 267 § 623 MAERIAGE CONSTITUTED, NULLITIES. [BOOK III. It did SO, for example, in North Carolina. Thereupon an admin- istrator was sued by such legitimated child for his share of the estate ; and it was held that he could not set up in defence the insanity of the plaintiff's parent, rendering the marriage void. For plainly the issue thus raised was immaterial ; the plaintiff's legitimacy depending, if the parent was insane, on the fact, not thp validity, of the marriage.^ Now, — § 622. In Absence of Affirmance — "Void." — Subject to these preliminary explanations, which concern only practical methods and the judicial discretion, the doctrine is clear, overwhelming, and almost without dissent, that, in the absence of any affirmance on return of the mental capacity, the marriage of an insane person is in such sense " void " ^ that its invalidity may be relied upon in avoidance of it, not only in a suit between, the parties to set it aside, but in any cause, between the same parties or any other, wherein, either during the life of the married persons or after- ward, it is judicially called in question.^ To illustrate, — § 623. Iiong after, and after Death. — Twelve years after a mar- riage the man died, and the woman applied as his widow for a year's support from his estate under a statute. Thereupon it was held that an allegation of his insanity was good in defence. The court referred to some statutes affirming the common-law rules, but they evidently did not control the result.* Now, — 1 S. V. Setzer, 97 N. C. 252, 2 Am. St. ities as follows : " It is essential to a valid 290. See post, § 725. marriage in this State that a person must 2 Ante, § 258, 285, 286. be of sound mind. Code, § 1699. Mar- ' Browning v. Reaue, 2 Phillim. 69, 1 riages of persons unable to contract are Eng. Ec. 190; Parker t>. Parker, 2 Lee, void. Code, § 1702. These propositions 382, 6 Eng. Ec. 165 ; Ex parte Turing, 1 are embraced in our statute, and yet it is Ves. & B. 140, where a marriage within insisted that the only way that it can be Stat. 12 Geo. 3, c. 11, was held to be void; determined whetherthe person was of un- Foster v. Means, 1 Speers Eq. 569, 42 sound mind is by the judgment of a court ; Am. D. 332 ; Johnson v. Kincade, 2 Ire. and while it must be .admitted that there Eq. 470; Jenkins y. Jenkins, 2 Dana, 102, are authorities which sustain the view 26 Am. D. 437 ; Middleborough v. Roches- taken by defendant in error, we think that ter, 12 Mass. 363 ; Wightman v. Wight- the weight and reason is with the author- man, 4 Johns. Ch. 343 ; Jaques u. The ities on the other side. In the case of Public Administrator, 1 Bradf . 499 ; Raw- Rawdon v. Rawdon, 28 Ala. 565, it was don V. Rawdon, 28 Ala. 565; Clement w. held 'That a valid marriage cannot be Mattison, 3 Rich. 93 ; Atkinson v. Med- contracted by an insane person ; ' and ford, 46 Me. 510; Harrod v. Harrod, 1 again, ' If a marriage be void by reason of Kay & J. 4 ; Waymire v. Jetmore, 22 the insanity of either one of the contract- Ohio St. 271 ; 1 Bnrge Col. & For. Laws, ing parties, no decree of divorce is neces- 138 ; Unity v. Belgrade, 76 Me. 419. sary to re,store the parties to their original * Bell V. Bennett, 73 Ga. 784. Bland- rights.' The Supreme Court of Ken- ford, J. explained the doctrine and author- tucky, in the case of Jenkins v. Jenkins, 2 268 CHAP. XX.] MENTAL CAPACITY, INSANITY. § 624 § 624. Confirmation. — In spite of the doubt arising from a case already stated/ it is on the whole sustained in authority the same as we have seen it to be in juridical reason,^ that if during a lucid interval, or otherwise when the mental capacity has re- turned, the parties continue their cohabitation or in any other manner give their concurrent consent to the marriage, it is thenceforward good and indissoluble. To one who, like the au- thor, has read all the cases, the nearly universal though mostly silent acquiescence of the tribunals in this proposition places it beyond room for cavil.^ And Shelford reminds us that " there is authority for the proposition, that a marriage by a non compos, when of unsound mind, is rendered valid by consummation during a lucid interval." * For those localities where only consent, with no added formalities, is required for matrimony,^ this doctrine is conclusive on its mere enunciation ; because, this consent appear- ing, the marriage would be good though no form of marriage had transpired during the period of insanity. And for the localities wherein the added formalities are indispensable, it is settled be- yond dispute in authority, the same as in reason, that their pur- pose is simply to promote the due order of society ; and that it is not necessary for them and the consent, which is of the essence of the marriage, to transpire simultaneously or even in the same year.^ This we saw, for example, in the last chapter, where it appeared that if children marry before reaching their age of con- sent, then continue their cohabitation afterward, their marriage is rendered indissoluble, the old ceremony adhering to and suf- ficing for the new consent.'' And in a chapter further back we Dana, 103, 26 Am. D. 437, decided that appears to be, not only one of ability, ' a person of unsound mind cannot be mar- but exhaustive of the questions decided. ried. The performance of a marriage To the like effect is the decision of the ceremony, and continued cohabitation Supreme Court of Kansas, in the case of with one in that condition till death, will Powell v. Powell, 18 Kan. 371, 26 Am. K. not constitute a legal marriage, nor give 774." p. 785, 786. claim to dower or curtesy in his or her i Ante, § 616. estate.' ' Where a claim or defence de- ^ Ante, § 614, 615. pends upon the question whether a person * And see Sabalot v. Popnlus, 31 La. was of sound or unsound' mind at the An. 854 ; Secor v. Secor, 1 McAr. 630. time of the marriage, it is not necessary < Shelf. Mar. & Div. 197, referring to that there should have been a decree of Ashe's Case, Prec. Ch. 203, Freeman Ch. nullification in his lifetime ; the question 259. may be made and decided in a suit for * Ante, § 297. dower, distribution, and the like.' The ' Ante, § 614, 615. opinion of the court in this last case was ' Ante, § 577. 1 delivered by Chief-Justice Robertson, and 269 § 627 MARRIAGE CONSTITUTED, NULLITIES. [BOOK HI, saw the same thing in respect of marriages brought about by fraud.^ So the conclusion is irresistible that the marriages of insane persons may be confirmed by mere consent, even in States where the formalities which transpired at the apparent nuptials are made by the law indispensable. And so are the authorities.^ Further as to which, — § 625. Distinction. — The cases to which we may presume Poynter alludes^ in the place referred to by the North Carolina Court,^ are of an entirely different nature from those now under consideration. In them, though the parties gave consent to the marriage, some defect of form entered into the ceremony, when, of course, it could not be cured by any amount of consent given then or afterward. And perhaps (a proposition not quite so plain) if a man and woman should mutually consent to present marriage, and should add thereto a perfect compliance with forms, yet some impediment to the marriage should exist at the time, — such, for instance, as one of them liaving another matri- monial, partner living, — this imperfect union could not be per- fected on the mere withdrawal of the impediment, by the bare repetition of the consent, without also a repetition of the forms. There are in the books cases which proceed on the supposition that such is the law, yet probably the question is not absolutely settled.* Hence, — § 626. In North Carolina, — in a later case, the learned judge observed : " It may well be that a second marriage, while the first is still subsisting, is void and incapable of confirmation ; because it is so utterly denounced by the law as to subject the party mar- rying a second time to capital punishment as a felon. But a mere want of age or understanding rests on a different footing entirely." ® And we have considered another case from this State, still more recent, pointing in the like direction.* V. The Marriage as Void or Voidable. § 627. Already, — in the sub-title just closed, we have consid- ered the substance of what pertains to this ; keeping clear of the 1 Ante, § 545, 548. » Ante, § 616. ■^ In addition to the cases already cited * Compare with post, § 722. to this section, Cole v. Cole, 5 Sneed, 57, * Pearson, C. J. in Koonce v. Wallace, 70 Am. D. 275 ; Wightman v. Wightman, 7 Jones, N. C. 194, 198. 4 Johns. Ch. 343, 345 ; Durie v. Norris, 1 « Ante, § 621. TJ. S. Mo. Law Mag 49 ; Boblin i>. Eob- lin, 28 Grant, U. C. 439. 270 CHAP. XX.] MENTAL CAPACITY, INSANITY. § 631 variable words " void " and " voidable," in order not to confuse the reader by language liable to be understood in meanings not meant by the writer. § 628. Void. — It is perceived that according to the present author's definings,^ the marriage in contemplation is void, not voidable. And so it is according to the very strictest meaning of the word " void," if by " marriage " we understand simply and only the marriage status? For no possible transaction can create this status, or any part of it, where the mutual consent of the parties, which can only proceed from sane minds, is wanting.^ But — § 629. Voidable. — If, in a State where formalities are indis- pensable, we use the word "marriage" in a different sense, and contemplate the ceremony as a part of the marriage, — then if we regard the word " voidable " as applicable to a thing of any effect however slight,* — this marriage is voidable ; for, as we have seen," the marriage ceremony, while it does not superinduce the status, has the effect of enabling the parties afterward to be- come husband and wife without repeating it. And — § 630. Use. — It would not be difficult to find in the books instances of the use of the word " voidable " in this sense. The old ecclesiastical judges would have been startled at it, but the idea would always have seemed less strange to a mere common- law lawyer. And a very modern work on marriage assigns two meanings to " voidable," by one of which a marriage " which is void to all intents and purposes unless and until duly confirmed, is called a voidable marriage." ^ According to the recollections of the present author, the judicial opinions do not much abound in this use of our law-language, especially do not those from our more enlightened judges. But sometimes it appears even in mar- riage cases, in analogy to what we more or less meet wilii in the law of contracts. For — § 631. In Ordinary Contracts — there are distinctions both in the use of the terms " void " and " voidable " and in the thing itself, depending in part on reasons not entering into the matri- monial contract, after which we need not much inquire.'^ Thus, * Ante, § 258, 259. * Stewart Mar. & Div. § 51. * Ante, § 10, 11, 1.5, 16. ' Bishop Con. § 618, 972-976 ; Rice v. ' Ante, § 299. Peet, 15 Johns. 503; Grant d. Thompson, * Bishop Con. § 617. 4 Conn. 203, 10 Am. D. 119; Lamprey v. S Ante, § 624. Nudd, 9 Fost. N. H. 299; Kilbee v. My- 271 § 634 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. a deed from an insane person is sometimes regarded as voidable,^ and sometimes as void.^ It is not voidable in the sense of the ecclesiastical law of marriage ; it simply requires no new seal- ing ; it will bind the maker after he has, during a lucid interval, affirmed it, not before. On the other hand, it is not, therefore, void in the sense that it must be written and sealed a second time. So that there is a point of resemblance between it and marriage ; but at other places we shall find the similitudes to fail. § 632. Statutes. — Among our multitudes of statutes there may be those which more or less influence this question. For exam- ple, in Maine it is provided that " no insane person is capable of contracting marriage," and in another chapter that the marriage, " if solemnized in this State, is absolutely void." This legislation appears to be looked upon merely as in affirmance of the unwrit- ten law ; yet it doubtless settles the question of the language, — namely, the word for the marriage is " void." * VI. Ill-considered Statutes. § 633. In a Previous Chapter, — we saw something of the ill condition of our marriage and divorce legislation.* Nothing can exceed the absurdity of some of the statutes relating more or less directly to this subject of insanity. Thus, — § 634. incapacity for Marriage. — In a considerable number of our States there is a statutory provision which, not attempting an accurate history of it, apparently originated in New York.^ It was formerly in Wisconsin, and it is immaterial to our present inquiry whether or not it now remains, in the following words : "When, either of the parties to a marriage, for want of age or understanding, shall be incapable of assenting thereto, or when the consent of either party shall have been obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of rick, 12 ria. 419; Manning v Gill, Law Crowther v. Rowlandson, 27 Cal. 376; Eep. 13 Eq. 485 ; Millison v. Nicholson, Maddox v. Simmons, 31 Ga. 512. Conference, 499; Merritt v. Gnmaer, 2 i AUis i;. Billings, 6 Met. 415, 39 Am. Cow. 552 ; Ingraham u. Baldwin, 5 Seld. D. 744. 45; Crouse !). Holman, 19 Ind. 30; Breck- " Manning v. Gill, Law, Rep. 13 Eq. enridge v. Ormsby, 1 J. J. Mar. 236, 19 485; Shelf. Lnn. 255 et seq. Am. D. 71 ; Somers v. Pumphrey, 24 Ind. ^ Unity v. Belgrade, 76 Me, 419, 421. 231 ; Cates v. Woodson, 2 Dana, 452 ; < Ante, § 161-167. Allis V. Billings, 6 Met. 415, 39 Am. D. ^ 2 Kent Com. 77. 744 ; Fitzgerald v. Eeed, 9 Sm. & M. 94 ; 272 CHAP. XX.] MENTAL CAPACITY, INSANITY. § 636 the parties, the marriage shall be void from the time its nullity shall he declared by a court of competent authority." i This sort of legislation is so common, either in these exact terms or in similar ones, that it will compensate us to pause a moment and look at it. § 635. Meaning or Meaningless. — No court will attribute to the legislature, a co-ordinate branch of the government, incompetence and folly, whatever be the private opinion of the incumbents of the bench. And we doubtless may all assume that any body of legislators, enacting words like these, attached to them some sort of meaning.^ The court, therefore, while in the most extreme case of impossible interpretation possessing the power to pro- nounce a statute void for repugnance,^ will first exhaust every device of construction to ascertain the true legislative intent. Can we find any intent, reasonable or unreasonable, in the terms before us ? § 636. What Meaning. — This statute, by its unequivocal words, declares the marriage of a party who cannot and does not volun- tarily marry, to be void after a judicial decree has pronounced it null. This is a truth, both of the common law and of reason, which indeed it would require no statute to teach us, but still it is a truth, and we know that often statutes are enacted in affirm- ance of the common law. Everybody knows, a layman knows as well as a lawyer, that practically, whatever may be the right, the State never marries two subjects together without the consent of both. But this provision contains a distinct intimation that, con- trary to this, the party who is incapable of marrying is never- theless married without his consent, and remains married until a court by its sentence pronounces the marriage void. Yet what is thus contrary to reason, to riglit, and to the established principles of our jurisprudence ; what thus invades private security, em- powers the man to commit a rape on the woman, takes away her property and vests it in him, and brings matrimony into igno- miny, — ought not to be accepted by any tribunal as the result of a mere presumption, drawn by construction out of statutory ex- 1 Wisconsin E. S. of 1858, c. Ill, § 2. His associates insisted on retaining them 2 I once received, from a member of a and they were retained, and by the legis- legislative committee for revising statutes, lature adopted. Of course, those who a letter saying that he had protested with their eyes thus open voted for them, against some provisions of the sort under believed them to have some meaning, consideration in my text, but in vain. » Bishop Written Laws, § 41. VOL. I. — 18 273 § 640 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III, pressions which do not of necessity embrace this meaning. More- over, — § 637. " Consent Essential." — So sacred is this doctrine that the statutes of several of our States have the express words, " Marriage, so far as its validity is concerned, is a civil contract, to which the consent of the parties capable in law of consenting is essential."! Consequently another provision which should de- clare, however distinctly, that the marriage of persons who by reason of insanity are in law incapable of consenting shall, with- out their consent, be valid imtil judicially pronounced void, and still be holden to have been valid up to the time of the decree, would be directly antagonistic to this one, and both could not stand together. § 638. Conclusion. — The conclusion from all which is, that the sort of provision now in contemplation is not to be treated as void for repugnance, but as a mere senseless attempt to declare an obvious truth, carried out in a way to mislead the unwary into accepting it as meaning something else. Another somewhat vary- ing form of substantially the same provision is — § 639. "Void from Time so declared." — In some of the States the expression of the idea is, to quote from one of our statute- books : " All marriages between a white person and a negro, and all marriages which are prohibited by law on account of either of the parties having a former wife or husband then living, shall be absolutely void without any decree of divorce or other legal pro- cess. All marriages which are prohibited by law on account of consanguinity or affinity between the parties, all marriages solem- nized when either of the parties was insane, or incapable from phys- ical causes of entering into the marriage state, shall, if solemnized within this State, be void from the time they shall he so declared by a decree of divorce or nullity, or from the time of the convic- tion of the parties under the third section of the one hundred and ninety-sixth chapter." ^ Now, — § 640. Interpreted. — It is difficult to derive from this form of words any meaning other than the one which we have fished out from the form preceding.** And still it runs so near the danger line that girls in the States where it prevails may well take heed 1 This particular quotation is from with immaterial verbal changes, in Va. Stats, of Minn. 1873, c. 37, § 1. Code of 1887, § 2252. 2 Va. Code of 1860, p. 529, § 1. Same, s Ante, § 634- 274 CHAP. XX.J MENTAL CAPACITY, INSANITY. § 640 how they become insane. The expression " void from the time they shall be so declared " might, by judges who did not pause to consider, be construed into a declaration that until the trans- piring of the nullity sentence the marriages shall be treated in law as good, and then void afterward only from the time of sen- tence rendered. Indeed, looking at this expression in connection with the first section of the statute, as the ordinary rules of inter- pretation require the courts to do,i this rendering would seem to be inevitable. Yet we have also the rule of interpretation that a stat- ute must not be given a meaning absurd or leading to injustice,^ and other like rules, which should cause the tribunal to pause long before yielding to such a conclusion. The announcement might well startle the country, that any State had legislatively deter- mined to visit its insane population with temporary matrimony not consented to, and this without " trial by jvn'y," in punishment for becoming insane. Otherwise expressed, the apparent meaning of this provision is, among other things, that if a marriage ceremony is gone through with while one of the parties is insane, the mar- riage is good until dissolved. It transfers the woman's property to the man, abates any suit pending against her, takes from one who has sued the man the right to use her testimony in evidence, and so of all the other consequences of valid marriage. True, there may be a divorce, should the parties live long enough, and become sufficiently sane to apply for it ; yet even then the mar- riage will not be made void from the beghming, but only from the date of the decree, after the above-mentioned consequences have been irrevocably wrought. Does the statute really mean this ? Could any body of sane men intend to pass it with this conse- quence in view ? And if this is the meaning, is it constitu- tional ? One cannot predict what any court will say to these questions ; but it is in reason plain what the judicial determina- tion ought to be. And whatever might be the answer to-day, when the rules of statutory interpretation have become more familiar to our tribunals than now, and they have adopted the practice of looking carefully into the consequences of their de- cisions, they will apply to such a case as this the rule that the legislature shall not be made to mean an absurdity, which evi- dently it did not intend ; in pursuance whereof they will limit the expressions in the statute implying present validity, to those 1 Bishop Written Laws, § 86. = jb. § 82, 93, 200. 275 § 642 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. clauses to which in reason they are applicable. They will deem, therefore, not that this statute makes the marriage of the insane party temporarily good ; but that, it being void, the courts are thereby authorized to take the jurisdiction to pronounce it so, on a proceeding instituted for the purpose, in addition to holding it to be void in collateral proceedings. Again, — § 641. Another Form of Provision. — A passage in one of our statute-books is : " Sect. 1. All marriages solemnized within this State, which are prohibited by law on account of consanguinity or affinity between the parties, or on account of either of them having a former wife or husband then living, or when either party was insane or an idiot, shall he void without any decree of divorce or other legal process. Sect. 2. The validity of a marriage shall not be questioned in the trial of a collateral issue, on account of the insanity or idiocy of either party, but only in a process duly instituted in the lifetime of both parties for determining such validity." ^ As to which, — § 642. How Interpret. — On the face of these two sections there is a conflict as flat as words can make. The first declares the marriage of insane persons void ; the second, good until avoided in the lifetime of both the parties, in other words, voidable. Yet it does not follow that the whole statute must be adjudged null for the repugnance. That the first section should be held to stand, and to mean what it says, results from the views which we have just been considering. The efPect of the second section may well be limited to those things wherein it will not of neces- sity nullify the first. For example, if, when the validity of a marriage collaterally arises, the parties who could bring a suit for nullity are living, and neither of them is now insane, it might require the court to pursue the North Carolina practice, explained in a previous sub-title.^ Or, as it is competent for legislation to make the children from insane marriages legitimate, this second section might well preclude a third person from bringing forward evidence of insanity to disinherit a child when his parents were dead.^ Or, within exactly the same reason, to state a case which has passed to judgment, since the legislature may fix the settle- ments of paupers, the statute may and does operate, in a pauper 1 Mass. Gen. Stats, c. 107, § 1 & 2. » Ante, § 620. Eetained, with mere verbal changes, in ^ Ante, § 621. Mass. Pub. Stats, of 1882, c. 145, § 7, 9. 276 CHAP. XX.] MENTAL CAPACITY, INSANITY. §643 case, to forbid third persons to bastardize the pauper by proving the insanity of one of his parents at their marriage.^ In ways like these the second section can have a meaning, though not the full meaning which its words primarily comprehend, without con- flicting either with the first, or with fundamental doctrine, and without imputing to the legislative body an entire absence of sanity. And thus the statute would be made to vindicate, rather than override, the words of an excellent Chief-Justice of Massa- chusetts, uttered before it was enacted : " If it would be hard that the issue of such marriages should be deemed bastards, it would be as much so that human beings without reason, or their fami- lies, should be the victims of the artifice of desperate pei'sons, who might be willing to speculate on their misfortunes." ^ § 643. Similar Statute in Vermont. — The excellent COurt of this State, proceeding on statutory provisions similar to the fore- ^ Goshen v. Eichmond, 4 Allen, 458. 2 Parker, C. J. in Middleborough u. Rochester, 12 Mass. 363, 365. Not to question the case of Goshen v. Richmond, supra, in respect of the point decided, as stated in the text, — for in this aspect it seems eminently just, — I deem the whole case as appearing in the Report, and as to judicial intimations therein, to require some observation. For it is unhappily suggestive of views which we have seen to be inadmissible. Let us put the bald case of a man procuring the marriage ceremony to be performed between him- self and a rich woman, confessedly an idiot, with whom he never cohabits for a day ; she dies, the fact of this mockery of marriage being unknown to her friends, so that no measures were taken in her lifetime to set it aside ; or, the fact being known to them, and measures being taken, she dies before the cause reaches a final judgment; and he comes into court and claims all her property, as her husband, by virtue of marital rights, — does this statute so operate as to give him the prop- erty ? Said Metcalf, J. in this case, " The purpose of the statute was to alter the law of evidence on a single subject, by making inadmissible certain proofs which were be- fore admissible." But it is not easy to conceal so great a fact as this under a name. The statute does not say anything about rules of evidence ; and, whether we use one term or another, if in the case just supposed, — a case, let it be under- stood, in which the idiocy is palpable, just as palpable as the existence of the person herself, — " the validity of the marriage shall not be questioned," then has the legislature imposed the marriage status on an idiot who could not consent, and who did not consent ; and conferred riches on a villain in reward for the most base and debasing practice of his art. Is it the true legal interpretation that the legisla- ture meant this ? The constmction ap- parently given by the court to the second section proceeds necessarily on the as- sumption that the language used in the first section does not convey the just legislative intent; this language is bent out of its plain and obvious sense in order to give a needlessly full meaning to the second section. Why, then, since we find the legislature here employing words in- accurately, should we cast the whole bur- den on the first section, bending its words from their legitimate signification, in or- der to let the words of the second section stand upright, where the effect is to reach a result which, if the legislature was com- posed of sane men, it could not possibly have intended 1 Again, is it constitu- tional thus to take from an honest woman property which has vested in her, and vest it in a dishonest man 1 If our constitu- tions do not forbid this, it is difficult to dis- 277 §643 MARRIAGE CONSTITUTED, NULLITIES. [book III. going, yet less strong,^ has rendered a decision quite inharmoni- ous both with what is thus far set down in this sub-title and also with the entire main doctrine of the chapter. A lunatic, palpably and clearly such, and under guardianship as a lunatic, went tlirough a form of marriage with a girl with whom he occasion- ally cohabited. He had no lucid interval, and there was no sus- pension of the guardianship. On his death it was held, that, no proceeding having been had to set aside this formal marriage, she was entitled to the legal rights of a widow.^ Not only did the court deduce this startling conclusion from the statute, but also laid it down that " this construction of the provisions of the Stat- ute is in harmony with the common law on the subject ; " ^ cover any rights of property which they do protect. 1 Vt. Gen. Stats, u. 70, § 1-3, 5-8, as follows : — " Section 1. All marriages which are prohibited by law or on account of con- sanguinity or affinity between the parties, or on account of either of them having a former wife or husband then living, sliall, if solemnized within this State, be abso- lutely void without any decree of divorce or other legal' process. " Sect. 2. When a marriage is sup- posed to be void, or the validity thereof is doubted, for any of the causes men- tioned in the preceding section of this chapter, either party may file a libel for annulling the same ; the libel to be filed in the manner hereinafter prescribed; and, upon due proof of the nullity of the marriage, it shall be declared void by a sentence of divorce or nullity. " Sect. 3. The Supreme Court may by a sentence of nullity declare void the marriage contract, for either of the fol- lowing causes, existing at the time of marriage : — "First. That the parties, or one of them had not attained the age of legal consent. "Second. That one of the parties was an idiot or lunatic. " Third. That the consent of one of the parties was obtained by force or fraud. " Fourth. That one of the parties was physically incapable of entering into the marriage state. 278 "Sect. 5. When a marriage is sought to be annulled on the ground of the idiocy of one of the parties, it may be declared void on the application of any relative of such idiot, interested to avoid the mar- riage, at any time during the lifetime of either of the parties. " Sect. 6. When a marriage is sought to be annulled on the ground of the lunacy of one of the parties, it may be declared void at any time during the continuancy of that lunacy, or after the death of the lunatic in that state, during the lifetime of the other party to the marriage, on the application of any rela- tive of the lunatic interested to avoid the marriage. "Sect. 7. When the marriage of an idiot or lunatic is sought to be annulled during the lifetime of both the parties to the marriage, and no suit shall be prose- cuted by any relative, a sentence of nul- lity may be pronounced on the application of any person admitted by the court to prosecute, as the next friend of such idiot or lunatic. " Sect. 8. The marriage of a lunatic may also be declared void, upon the ap- plication of the lunatic, after the resto- ration of reason ; but in such case no sentence of nullity shall be pronounced if it shall appear that the parties freely cohabited as husband and wife, after the lunatic was restored to a sound mind." 2 Wiser v. Lockwood, 42 Yt. 720. 8 Referring to Bac. Abr. Idiots and Lunatics, I) ; Smart v. Taylor, 9 Mod. 98 ; Ex parte Turing, 1 Ves. & B. 140 ; Wight- CHAP. XX.] MENTAL CAPACITY, INSANITY. § 644 not appearing to be aware that the books contain any contrary doctrine. Whatever be the effect of this decision in the State wherein it was rendered, the fact that it proceeded from an utter misapprehension absolves the courts elsewhere from according to it any weight in authority. So — § 644. Effect of Annulling. — Proceeding on a Georgia statute, we have a case wherein the majority of the court seem to have held the decree of nullity on the ground of insanity, to annul the marriage only from the time it is rendered, making it, there- fore, originally good, and for the intervening space of time inca- pable of being avoided. Said Lumpkin, J., " Nowhere else is mental incapacity, except in Georgia, so far as I know, made a ground for divorce. Elsewhere the proceedings are instituted in chancery, or some other court, to annul the pretended marriage. A sentence of nullity is rendered. Now, I maintain broadly, that in this State no decree can be rendered, separating man and wife, where there has been a marriage de facto, except under our di- vorce laws ; that they have virtually repealed the whole body of the English ecclesiastical and common law upon this subject. Was any such proceeding ever known or heard of in Georgia, to obtain a sentence of nullity ? " ^ But we have seen that the sub- stantially universal doctrine among our States, as to the unwritten law of this subject, is directly contrary to what is thus declared by the learned judge.^ And for such contrary doctrine we have authorities as well from Georgia as from other States. ^ More- over, a nullity suit is a " divorce " suit, and a decree pronouncing a marriage void ah initio is a " divorce." * Hence this decision, proceeding like the Vermont one from a misapprehension, is with- out weight in general authority. And to hold an insane person's marriage, for the time intervening between its celebration and the decree of nullity^ valid, is to impute to the statute the com- plete injustice which we have seen not to be permissible. man v. Wightman, 4 Johns. Ch. 343 ; Co. i Brown v. Westbrook, 27 Ga. 102, Lit. 33 a. I cannot discover anything 106. here, except the "strange determination " ^ Ante, § 115-149. spoken of by Blackstone (ante, § 590), to " Ante, § 128, 134. sustain the proposition to which these * Ante, § 166. authorities were cited. 2T9 § 645 MAEEIAGB CONSTITUTED, NULLITIES. [BOOK III, § 645. The Doctrine of this Chapter restated. It would seem to be a plain proposition that, as marriage pro- ceeds from the free and concurring consent of^two competent persons, the insanity of one of the parties renders any formal coming together or solemnization ineffectual to make them hus- band and wife. If we denote any such coming together by the noun " marriage," it will abundantly sustain the adjective " void." But to dispel mists from the meadows requires oftentimes a good deal of operating on by the beams of the sun. Anciently, while marriage was a sort of superstition, and relating to it the mist in men's minds was very dense, it was thought that the words of marriage pronounced by a priest could impart the matrimonial status to insane parties. This mist the beams of legal truth have been working upon for ages, and yet we find some of it lingering alike in the legislative halls and upon the bench. And still the true law is legal reason, and not legislative or judicial supersti- tion. It has been so minutely explained in this chapter that further repetition does not seem desirable. 280 CHAP. XXI.] SLAVEEY AND EMANCIPATION. § 648 CHAPTER XXI. THE EFFECTS OP SLAVERY AND EMANCIPATION. § 646, 647. Introduction. 648-659. Slave Marriages. 660-669. Effect of Emancipation on them. 670-678. Status and Rights of Children. 679. Doctrine of Chapter restated. § 646. Why this Chapter. — Though slavery has come to an end with us, there remain multitudes of persons who were married as slaves, and who have continued to cohabit as husband and wife since emancipation. It is, therefore, important to know what was the law of slave marriages, and what is the effect of emancipation, with and without subsequent cohabitation, on the parties and on their children. § 647. How Chapter divided. — We shall consider, I. Slave Marriages ; II. The Effect of Emancipation on these Marriages ; in. The Status and Rights of the Children. I. Slave Marriages. § 648. Whence American Law of Slavery. — The law of slavery, formerly prevailing in a part of our States, was not the old Eng- lish law of serfdom ; but a law of our own, not derived from the common law of our ancestors, yet taking its form and dimensions more from the Roman law of slavery than from any other pre- viously known system.'- Its leading principles were substantially the same in all the slave States, yet there were minor differences, and especially was the institution milder in the more northern 1 Pirate v. Dalby, 1 Dall. 167, 169; 4 Har. & McH. 295, 303; Jackson v. Neal V. Farmer, 9 Ga. 555 ; Bynum o. Bulloch, 12 Conn. 38 ; Charlotte v. Chou- Bostick, 4 Des. 266, 267 ; Tims v. Potter, tean, 21 Mo. 590 ; 1 Bishop Crim. Law, Martin, N. C. 22, 24 ; Mahoney v. Ashton, 2d ed. § 732. 281 § 653 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. than in the more southern ones. In all, the slave was deemed to sustain the twofold character of a person and property.^ § 649. Early Slavery in Northern States : — General. — In colonial times and early statehood, there was slavery in a part of those Northern States which were long known as free, in distinction from the Southern slave States. But it was never in them exactly what it became in the latter. Thus, as to marriage, — § 650. In New York, — during the existence of slavery, there was a statute declaring the marriages of parties, one or both of whom is a slave, to be equally valid as though they were free. And it was held that if the man is a slave and the woman is free, their children are to be deemed the free and legitimate offspring of the woman.2 Also, — § 651. In Massachusetts, — where, as Gray observes, " previ- ously to the adoption of the State Constitution in 1780, negro slavery existed to some extent, and negroes held as slaves might be sold, but all children of slaves were by law free,"^ it was enacted that " no ilaster shall unreasonably deny marriage to his negro with one of the same nation." * And either in consequence of this statute, or of adjudications as at the common law, slave marriages were deemed to be valid, and the rights of divorce were extended to slaves the same as to freemen. Thus, says Gray : " In 1745, a negro slave obtained from the governor and council " — the tribunal then having jurisdiction over 'divorces — "a di- vorce for his wife's adultery with a white man." * Quite other- wise, yet still differing widely from what was afterward adjudged in the Southern slave States, was the law of — § 652. Connecticut. — Reeve, speaking of the law of this State during slavery there, observes : " If a slave married a free wo- man, with the consent of his master, he was emancipated ; for his master had suffered him to contract a relation inconsistent with a state of slavery. The right and duties of a husband are incom- patible with a state of slavery." ^ Now, — § 653. In Southern Slave States : — Distinguished. — A more logical condition of the law prevailed, 1 1 Bishop Crim. Law, 2d ed. § 729, s jjote to Oliver v. Sale, Quincy, 29. 730; 4tlied. § 779,780. The matter thus * Prov. Stat, of Oct. 1705, c. 6, § 5. referred to is not retained in the late Ancient Charters, 748. editions. * Note to Oliver v. Sale, supra. 2 Marbletown v. Kingston, 20 Johns. 1. ^ Reeve Dom. Rel. 341. 282 CHAP. XXI. j SLAVERY AND EMANCIPATION. § 655 during slavery, in those States in which general emancipation followed our Secession War. Thus, — § 654. Marriage by Custom — Effect in Law. — There was a uni- versal custom of marriage among slaves, the same as among free white people. But this custom was a thing separate and distinct from the law which governed the marriages of the free. Tested by the latter law, a slave marriage was for most purposes a nul- lity ; while yet in popular language it was called marriage, and to it a sort of moral effect was as far as possible given. ^ The language of the courts regarding it was not quite uniform. For example, " We admit," said a learned Alabama judge, " the moral obligation which natural law imposes in the relation of husband and wife among slaves ; " yet he added, " All its legal conse- quences must flow from the municipal law. This does not recog- nize, for any purpose whatever, the marriages of slaves." In pursuance of which view it was held that slaves cohabiting as husband and wife might be witnesses for and against each other.^ On the other hand, in Tennessee, " there were," said Nelson, J., " circumstances under which the courts of this State recognized the relation of husband and wife, and the ties of consanguinity, as existing among slaves, as well as among free persons and free persons of color ; and we hold that a marriage between slaves, with the consent of their owners, whether contracted in common- law form or celebrated under the statute, always was a valid mar- riage in this State, and that the issue of such marriages were not illegitimates.^ We do not hold that such marriages were followed by all the legal consequences resulting from the marriage of white persons ; " an illustration of the difference being that a slave marriage can be terminated at the will of the master.* To under- stand the subject more fully, in respect of the purposes of this chapter, we must search for the — § 655. Reasons. — There are two reasons for the legal doctrine 1 McDowell V. Sapp, 39 Ohio St. 558; S. w.Adanis,65N.C. 537; Cantelou w. Hood, Smith u. S. 9 Ala. 990; Howard v. How- 56 Ala. 519; Hall v. U. S. 92 U. S. 27. ard, 6 Jones, N. C. 235 ; Malinda v. Gard- 2 Smith v. S. supra, at p. 996 ; s. p. ner, 24 Ala. 719 ; S. u. Samuel, 2 Dev. & S. v. Samuel, supra. Bat. 177; C. v. Clements, 6 Binn. 206, 211 ; s Post, § 671-677. Timmins v. Lacy, 30 Tex. 115 ; Johnson v. * Andrews v. Page, 3 Heisk. 653, 666. Johnson, 45 Mo. 595; S. i>. Taylor, Phillips, And see, as somewhat in the same direc- N. C. 508 ; Estill v. Kogers, 1 Bush, 62 ; tion, Williams v. S. 33 Ga. Supp. 85 ; Jones Minoru. Jones, 2 Eedf. 289; Haden;;. Ivey, v. Jone.s, 45 Md. 144, 159; Pearson v. 51 Ala. 381; McKnight v. S. 6 Tex. Ap. 158; Pearson, 51 Cal. 120. 283 § 657 , MAERIAGE CONSTITUTED, NULLITIES. [BOOK III. which denies validity, or complete validity and effect, to slave marriages : first, that slaves had, in law, no such freedom of will as is required to pass the matrimonial consent ; and secondly, that the duties of husband and wife are incompatible with those which the slave owes to his master. A third reason has indeed been assigned ; namely, that since the slave was the master's prop- erty, all the former's acquisitions accrued to the latter. But this reason could not be good ; because, in truth, the law never did maiie the wife of a slave accrue to the master as his acquisi- tion, or wife ; or the slave woman's husband accrue to the mis- tress, as her husband. § 656. Judicial Statement of Reasons. — The two valid reasons above have been judicially stated as follows : " Marriage is based upon contract ; consequently the relation of ' man and wife ' can- not exist among slaves. It is excluded both on account of their incapacity to contract, and of the paramount right of ownership in them as property." ^ Again : " Persons in that condition [slavery] are incapable of contracting marriage ; because that relation brings with it certain duties and rights, with reference to which it is sup- posed to be entered into. But the duties and rights which are deemed essential to this contract are necessarily incompatible with the nature of slavery, as the one cannot be discharged, nor the other be recognized, without doing violence to the rights of the owner. In other words, the subjects of the contracts must cease to be slaves, before the incidents inseparable to the relation of marriage in its proper sense can attach." ^ More speciiically as to these reasons, — § 657. ■Will, or Consent. — First, That the slave had not the necessary freedom of will or consent. If this were the only ground for the doctrine, its correctness in legal argumentation could hardly be maintained. For the law held the slaves to pos- sess the utmost freedom of will when the question related to their capacity for crime ; neither the general constraint of slavery, nor the direct command of the master, having been accepted as relieving an indicted slave from criminal responsibility.^ -And it would be strange that the slave should be capable of binding his master, against the latter's consent, to the consequences of crime, 1 Pearson, C. J. in Howard v. Howard, 6 Jones, N. C. 235, 236. ■■= Goldthwaite, J. in Malinda v. Gardner, 24 Ala. 719, 724. 2 1 Bishop Crim. Law, 2d ed. § 736; 4th ed. § 786. 284 CHAP. ZXI.] SLATEEY AND EMANCIPATION. § 660 such as the loss of the slave's services or even of his person, by being imprisoned or hanged ; and of binding himself, whether the master consented or not, to the loss of his own liberty of personal locomotion, or his own life, yet, on the other hand, should be in- capable, even with the master's permission, of exercising the freedom of will which forms the basis of matrimony. But how- ever it may be with this reason, — § 658. Incompatible Duties. — Secondly, That the duties of husband or wife are incompatible with those of a slave is a pro- position evidently sound in law, and upon it the doctrine which denies to slaves the power of matrimony may well rest. Prom which reason, combined with the foregoing elucidations, we derive the following — § 659. Resulting Doctrine. — Since there was recognized among slaves the same distinction between matrimony and fornication as among freemen ; since slave marriages were for most purposes invalid when tested by the general law, simply by reason of the incompatibility of the duties of common marriage with those due from the slave to the master ; and since by universal sentiment and public opinion, ripening into a law for slaves, their customary marriages were valid as far as in the nature of the case they could be, — they are deemed to have been, not null in the widest sense of the word, but only null as compared with ordinary mar- riage, and were good in law for any purpose for which they could so be held, not inconsistent with the master's superior claims or the general policy of the law of slavery. This rule would seldom permit any validity to be assigned them in the every-day litigation of the courts, hence judges would naturally speak of them as void. It was probably not in violation of this rule that slave husbands and wives were admitted as witnesses against each other,! though the question lies very near the line which separates the invalid from the valid. We are now about to see what is on the other side of this line. II. The Hffect of Emancipation on these Marriages. § 660. General or Special. — There is in principle, and appar- ently also in authority, no wide distinction if any between a spe- cial emancipation of the particular slaves, and a general abolition 1 Ante, § 654. 285 § 663 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. of slavery, such as terminated the institution in our Southern States, on the marriages of the freed persons. Special emancipa- tiqns often occurred prior to the general one, a.nd both before and since the -latter transpired their consequences have been fre- quently passed upon by the courts. And — § 661. Doctrine defined. — The doctrine is, that, since the in- validity of slave marriages, whether deemed more or less or per- fectly complete, was in consequence of their antagonism to the rights of the master, while yet the universal and universally known custom which sanctioned them was law up to the point of such antagonism,^ the same rules of dissent and affirmance which we have considered in their application to the marriages of insane persons^ — or probably made at one or two places even more liberal in favor of the marriage — governed these slave marriages subsequently to emancipation ; namely, with nothing transpiring, they still lack the legal quality of ordinary or non-slave marriage ; but without any new formalities, even in States by the general laws of which a formal solemnization is indispensable, the anti-eman- cipation marriages of the freedmen are perfected by any mutual consent of the parties, whether expressed in words or implied from a continuance of the cohabitation.^ Further as to which, — § 662. Discordant and Immature Utterances. — On this ques- tion, as is not uncommon on others, light has broken in upon the law as the day breaks in the morning, — first mingled with the dark, then brighter, then full and complete. When the question first arose in the courts, only a part of the considerations to be properly taken into the view were presented to the judges ; there- upon their response was imperfect or immature. Afterward, a wider horizon was opened to their view, and they answered from larger considerations and more wisely. And we shall see in the course of our further unfoldings that, down to the time of the present writing, not everything important has in all the cases been drawn within the judicial contemplation. Thus, — § 663. Continuing or not the Cohabitation. — The mutual consent which two slaves gave at their marriage was to be husband and wife in the slave-marriage sense. They had no opportunity to say, so they are not supposed to have considered, whether or not they would sustain the marriage relation as it is known among 1 Bishop Con. § 10, 445, 446; post, " Ante, § 614-632. § 666. s Post, § 665. 286 CHAP. XXI.J SLAVERY AND EMANCIPATION. § 663 free persons. Therefore, according to our defining, to make the marriage a free marriage, they must after emancipation, either by continuing their cohabitation or otherwise, consent to it. Lacking this, the slkve marriage does not become a free marriage. Now, many years anterior to general emancipation, a slave mar- riage was brought before the Louisiana Court, after individual manumission. But nothing appears in the report as to whether or not there was cohabitation during freedom. In utter silence and apparent mental oblivion regarding this really controlling fact, the tribunal sustained the marriage. Said the judge : " The only question in this case submitted to the court is, whether the marriage of slaves produces any of the civil effects resulting from such a contract, after manumission. It is clear that slaves have no legal capacity to assent to any contract. With the consent of their masters they may marry, and their moral power to agree to such a contract or connection as that of marriage cannot be doubted ; but whilst in a state of slavery, it cannot produce any civil efPect, because slaves are deprived of all civil rights. Eman- cipation gives to the slave his civil rights ; and a contract of mar- riage, legal and valid by the consent of the master and moral assent of the slave, from the moment of freedom, although dor- mant during the slavery, produces all the effects which result from such contract among free persons." ^ Afterward the same question arose in North Carolina, and this controlling fact ap- peared ; but the court gave it no heed and held the marriage void, in dissent from the Louisiana case. Said Pearson, C. J. : " No authority is cited, and no reason is given for the decision, except the suggestion that the marriage, being dormant during the slavery, is endowed with full energy from the moment of free- dom. We are forced to the conclusion that the idea of civil rights being merely dormant during slavery is rather a fanciful conceit (we say it with respect) than the ground of a sound judgment. It may be that in Louisiana the marriage relation is greatly af- fected by the influence of religion, and the mystery of its sup- posed dormant rights is attributable to its divine origin. If so, the case has no application ; for in our courts marriage is treated as a mere civil institution.^ Concerning which, — 1 Girod V. Lewis, 6 Mart. I^a. 559; An. 617, and Pearce's Succession, 30 La. opinion by Mattliews, J. This doctrine is An. 1168. See post, § 678. reaffirmed in Pierre v. Fontenette, 25 La. ^ Howard v. Howard, 6 Jones, N. C. 235, 239. 287 § 665 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 664. Things not thought of — in a judicial opinion, yet on a true view vital, leave the words of the judges without weight, and the matter adjudged without authority.^ So these two , cases should be counted for nothing. And if the reader deems it im- portant to trace down these decisions, he will probably find that neither of them has had much practical effect either in the State in which it was rendered or elsewhere. Yet if in any view the facts of the North Carolina case are deemed of consequence, they are that a slave couple intermarried with their owner's consent, in the form common among slaves ; the male was emancipated and he then purchased his wife. They had after this one child ; he next emancipated her ; and, the two still living as husband and wife, but without any further ceremony of marriage, they had several other children. It was held that neither the first nor the others of these children were legitimate, so as to take as tenants in common with legitimate children of the father by a second marriage, celebrated after the death of the supposed first wife.^ And still, — - § 665. Settled, and how — (niustrations). — In accord with the Louisiana case, if in fact it contained the element of co- habitation after emancipation, and in dissent from the North Carolina one, the doctrine of our courts may now be deemed settled as above defined;^ namely, that though during slavery the slave marriage is substantially void in law, if after eman- cipation the parties continue to cohabit matrimonially, it is thereby made good.* So that, for example, if then the man marries another wife, he commits the crime of polygamy.^ And where a slave had two wives, and after his emancipation he con- tinued to live with the second one, and acknowledged her as his lawful wife, it was held that he not only ratified the second slave marriage, but disaffirmed the first.^ At the same time, in analogy to the doctrine governing when copula follows a promise of future marriage,^ if while to some extent cohabiting after emancipation, tlie parties repudiate the idea of marriage, and 1 And compare with Bishop Non-Con. the remaining cases cited to this section. Law, § 908 ; ante, § 130, 462. This case and Haden v. Ivey, 51 Ala. 381, 2 Howard u. Howard, 6 Jones, N. C. were as to some points overruled in Can- 235. telou V. Hood, 56 Ala. 519. 5 Ante, § 661. ^ McReynolds v. S. 5 Coldw. 18. * McDowell V. Sapp, 39 Ohio St. 558, ^ Johnson v. Johnson, 45 Mo. 595. 561 ; Stikes v. Swanson, 44 Ala. 633 ; and ' Ante, § 353-377. 288 CHAP. XXI.] SLAVERY AND EMANCIPATION. § 666 refuse to be married, they do not thereby, it seems, affirm their slave marriage.^ § 666. Defect in Slave Marriage. — We may assume, referring to a doctrine stated in the last chapter ,2 that, in a State where formal solemnization is essential to matrimony, an insane per- son's marriage in neglect of an indispensable ceremony cannot be perfected by a mere cohabitation during a lucid interval. In like manner, in such a State, a slave marriage cannot be confirmed by a mere cohabitation in freedom, if, as a slave marriage within the custom, it lacked something which the custom made indis- pensable. So the question stands in principle, though it is not greatly illumined by direct authority. In Kentucky, a State whose statutes require a formal ceremony to make an ordinary marriage good,^ the courts appear not to deem the former mar- riages of slaves capable of being confirmed, except by compliance with the special statute relating to them, or by a new marriage under the general law. And the confirmation makes such a mar- riage valid only from the time when the confirming act transpires.* There may be, special to this State, something not in the author's mind affecting the question, but the doctrine for most localities is believed to be as follows. A custom, by becoming general over the entire State, so as to be known to the judges and to all the people, not being violative of any conflicting right or legal rule, transmutes itself into law.^ Slaves were always deemed a class separate from white freemen, and there was never a ground for objection to a custom permitting them to marry in a way special to themselves. Sucli a custom prevailed in every one of our slave States, and it was recognized by the courts, and by everybody deemed good, except that it could not override the master's su- perior claims, as already explained.^ The result of which is, that a slave marriage to have the effect we are considering must have been valid as such, but it is immaterial whether its validity came from a statute or from the custom. In illustration of the latter, North Carolina appears to be among the States in which special formalities are required at marriages ; ^ yet it is held not to be for- 1 S. V. Taylor, Phillips, N. C. 508. 82. Compare with Dowd v. Hurley, fS 2 Ante, § 625. Ky. 260 ; post, § 678. 3 Ante, § 410. 5 Bishop Con, § 445, 446; Bishop Non- * Estill V. Rogers, 1 Bush, 62 ; Stewart Con. Law, § 124, 1288. V. Munchandler, 2 Bush, 278, See S. v. « Ante, § 657, 659. Harris, 63 N. C. 1 ; Hampton w. S. 45 Ala. ' Ante, § 412. VOL. I. — 19 289 § 669 MAEEIAGE CONSTITUTED, NULLITIES. [bOOK III. nication for the parties to a slave marriage to continue to cohabit after emancipation.^ And still it would be fornication if no valid- ity were accorded the slave marriage. Again, — § 667. Divorce. — Under the custom, contrary to the laws which governed the free white people, slaves could divorce them- selves with the consent of their masters, probably also without it, in pais, with no judicial intervention.^ And we have just seen that a second slave marriage has been judicially recognized as a divorce from the first.^ § 668. Constitutional and Statutory Confirmations. — In some, and perhaps finally in all, of the late slave-holding States, doc- trines similar to the foregoing, yet differing in their minuter forms, have been adopted confirmatory of slave marriages, in written constitutions, in statutes, or in both. No extended expo- sition of these provisions is desirable.* In general they are appli- cable only where the cohabitation was continuing at the time of emancipation,^ and where the subsequent commerce was meant to be matrimonial.® § 669. In other States. — The foregoing expositions assume that the parties continue to live in the State in which they were slaves before emancipation. Possibly there are circumstances wherein the rules will be different in another State where they take up their abode. On this question we are practically without direct authority. The doctrine is familiar that, not speaking of what came from our former fugitive slave laws, if a slave went or was carried into a free State, he was, while remaining there, treated as free, though if he returned he would in the old locality be a slave. The transaction, as respects the new locality, was a practical emancipation.^ If he took his slave wife there, we may 1 S. V. Adams, 65 N. C. 537. v. Francis, 31 Grat. 283 ; Steward v. S. 2 Pierre v. Fontenette, 25 La. An. 617 ; 7 Tex. Ap. 326 ; S. v. Whitford, 86 N. C. McDowell V. Sapp, 39 Ohio St. 558 ; 636 ; Long v. Barnes, 87 N. C. 329 ; Fitch- Downs V. Allen, 10 Lea, 652. ett v. Smith, 78 Va. 624; Myers v. Ham, 3 Ante, § 665; McDowell v. Sapp, 20 S. C. 522; Williams v. S. 67 Ga. 260; snpra. Dowd v. Hurley, 78 Ky. 260. 4 Davenport v. Caldwell, 10 S. C. 317; ^ Cantelou v. Hood, 56 Ala. 519; S. t. S. V. Whaley, 10 S. C. 500; McConico v. Whaley, 10 S. C. 500; Brown v. McGee, S. 49 Ala. 6 ; Jackson v. S. 53 Ala. 472 ; 12 Bush, 428 ; Scoggins v. S. 32 Ark. 205. Hart t/. Hoss, 26 La. An. 90 ; Pierre v. » Floyd v. Calvert, 53 Missis. 37; Wash- Fontenette, 25 La. An. 617; Whitesides ington «. Washington, 69 Ala. 281. V. Allen, 1 1 Bush, 23 ; Hill v. Fairfax, 38 ' Scott v. Sandford, 19 How. U. S. 393 ; Tex. 220; McKnight v. S. 6 Tex. Ap. Sommersett's CaBe,20How. St.Tr. I.; s.c. 158 ; S. V. Adams, 65 N. C. 537 ; Francis nom. Somerset v. Stewart, Lofft, 1 ; Jack- 290 CHAP. XXI.J SLAVERY AND EMANCIPATION. § 672 presume that the courts would recognize the marriage relation between them, provided the two acknowledged it by cohabitation or otherwise, yet not if they there repudiated the slave marriage. And this principle, which is easy of application, would seem to govern all similar cases ; determining, for example, the status of our former slave marriages where the parties have removed to any of the other States in which at the time of their removal there is no slavery. III. The Status and Rights of the Children. § 670. statutory Legitimacy. — The question of the legitimacy of the children is in general regulated by the before-mentioned late statutory and constitutional provisions.^ Aside from them, — § 671. Common Rules for Legitimacy. — Leaving out of view the question as to slave marriages and the resulting children, by a familiar rule of the common law all childi-en born in wedlock, even those begotten by the husband before marriage, and all be- gotten by him in wedlock though born after the marriage is dis- solved, are legitimate, and no others are.^ But a rule of the civil law, followed in various countries and by statutes in a part of our States, legitimates also children born out of wedlock, on the sub- sequent intermarriage of their parents.^ And it may be added that when the question comes before the courts of other States governed by the common-law rules, on an application of a child for property there, the latter courts require a legitimacy which would suffice by the law of their own State if the property consists of land, yet accept what is sufficient by the law of the domicil if it is personal property.* Now, — § 672. Question in Principle. — Under slavery there were, within son !■. Bulloch, 12 Conn. 38 ; Hammond v. ^ Ante, § 492 ; 2 Kent Com. 208-212 ; Candler, 30 Ga. 275 ; Strader v. Graham, Birtwhistle v. Vardill, 5 B. & C. 438, 2 01. 10 How. U. S. 82 ; C. w. Aves, 18 Pick. 193. &F. 571, 7 CI. &F.895, 4 Jur. 1076 ; Uen- 1 Brown v. McGee, 12 Bush, 428 ; nison v. Page, 29 Pa. 420, 72 Am. D. 644 Davenport v. Caldwell, 10 S. C. 317; and note to the latter report. Cantelou v. Hood, 56 Ala. 519; Clements ' Kent Com. ut sup.; In re Grove, 40 V. Crawford, 42 Tex. 601 ; Hill v. Fairfax, Ch. D. 216 ; Gregg v. Tesson, 1 Black, 38 Tex. 220; Hart v. Hoss, 26 La. An. 150; Morris u. Williams, 39 Ohio St. 90; Dickerson o. Brown, 49 Missis. 357 ; 554. White V. Boss, 40 Ga. 339; Gregley v. * Authorities referred to in the last Jackson, 38 Ark. 487 ; Dingle r. Mitchell, two notes; Smith v. Derr, 34 Pa. 126; 20 S. C. 202 ; Smith v. Perry, 80 Va. 563 ; Story Coufl. Laws, § 87, 87 a, 380, 381. Fitchett V. Smith, 78 Va. 524. 291 § 672 MAREIAGE CONSTITUTED, NULLITIES. [BOOK III. the custom which we have already explained,^ both legitimate and illegitimate slave children. And we have seen that, according to the expositions of a learned Tennessee judge, the offspring of the slave marriages " were not illegitimates." ^ It is not material to the view about to be taken whether or not all the judges of the slave-holding States would have concurred in this precise language. If any rejected it, it would be because marriage and legitimacy were deemed by them incompatible with slavery. And this insti- tution, being contrary to natural right, was never, either in whole or in part, accepted in a non-slave-holding State. As said a little way back,3 if a slave went into a free State he was there treated as free ; if he took his slave wife with him, it was for them to elect whether or not they should there be accepted as husband and wife. If he took also the children who were born in slavery, could they be declared bastards, a condition which they did not occupy at the place of their birth, though they and their parents strove to the utmost after the status of legitimacy ? Should it be interposed that these parties have not the capacity to elect, the author's reply is that, according to his understanding, it is a rule pervading our entire common-law jurisprudence that where par- ties lack this capacity, the law assumes them to have elected what is most for their interests ; as, for example, if property is con- veyed to persons too young or otherwise disqualified to choose whether or not to receive it, the law will presume their acceptance of it, because this is for their benefit.* The status of imperfect legitimacy which, in contrast to bastardy, the children occupied at the place of their birth, is unknown in any free State. It has not been known in any State of our Union since general emanci- pation. So that in every one of our States since that period there has been no possibility of any person of whatever color or race existing or continuing in that peculiar and special status, which, as one of the incidents of slavery, ceased of necessity with the slavery whereof it was a part. Thereupon, being emancipated from their former servile condition, and losing their former sta- tus, if they could not choose the new for themselves the law would choose for them. And, electing for them, it was compelled either to accord to them the legitimacy of freedom, or thrust them back and downward to a degradation which was not theirs in sla- 1 Ante, § 654, 666. 8 Ante, § 669. 2 Ante, § 654. * Bishop Con. § 351, 923, 1222. 292 CHAP. XXI.] SLAVERY AND EMANCIPATION. § 675 very. To the writer, the latter seems impossible, and the former accords completely with well-established old and new legal doc- trine and the reasoning of the law. A further illustration of the doctrine is, — § 673. Effect of Impossibility. — Marriage is a natural right ; and the unwritten law of no country in which true marriage pre- vails will permit persons within its jurisdiction to be utterly de- prived of it. Thus we shall see in a future chapter that, though our citizens abroad can ordinarily contract valid marriage only in compliance with the law of the country where they are, yet if such law affords no means by which they can do it, they may marry in their own forms, and our courts will hold the marriage good.^ In like manner, we saw in a preceding chapter that wliile a polygamous first marriage entered into in a polygamous coun- try will perhaps ordinarily be rejected, yet if the parties meant it to be monogamous, and used their best exertions to render it such, it will be accepted as good in a monogamous country.^ Within this principle, a slave marriage should be deemed good in a free State after emancipation, if the parties to it did all they could to render it a complete Christian marriage, were this condio- sion necessary in the establishment of matrimonial justice. But it is not necessary, since the parties are free to elect. Yet the children of slave mari-iages have no freedom of choice whether to be held legitimate or not ; hence the necessity, thus pointed out, comes to their aid, and gives them legitimacy instead of thrusting them down into bastardy. Now, looking for the judicial utter- ances and holdings, — § 674. Not thought of. — As at first the courts passed upon the effect wrought on slave marriages by emancipation, with- out having their attention directed to the controlling fact of the assent or dissent of the parties on becoming free,^ so it has happened on this question, that cases have been decided without any taking into the account of that wider view of the reasoning of the law which the author attempted, yet doubtless with very imperfect execution, in the last two sections.* And still, on the whole, there has been in the results no wide divergence from those indicated by this reasoning. Thus, — § 675. Descent cast during Slavery. — Emancipation does not 1 Post, § 890-894. ' Ante, § 662-665. ^ Ante, § 310. * Hazzard's Estate, 13 Philad. 335. 293 § 677 MAERIAGE CONSTITUTED, NULLITIES. [BOOK III. enable the former slave to take lands by inheritance if the ances- tor died, and the descent was cast, while slavery continued.^ This proposition is obvious, and is in no degree in conflict with any- thing said in this chapter. Again, — § 676. After Slave Marriage actually disaffirmed. — Possibly if, during slavery, one actually disaffirmed his slave marriage by con- tracting another and valid one in a free State, the emancipated children of the former will not be admitted to succeed" their father as his heirs on his death. It appears to have been so adjudged in a Canada case,^ commented on without disapprobation in an Ohio one.^ Yet, looking upon the disaffirmance as a divorce,* and no more, this bastardizing of the children would hardly re- sult from any known legal rule. And still there is room for a distinction in accord with this doctrine. As to the — § 677. General Doctrine. — The Alabama Court, in 1870, ren- dered a decision quite within the foregoing elucidations. As stated by the judges, marriages between slaves, and between free- men of color and slave women, were not during slavery illicit connections, but were quasi marriages, allowed by the law and approved by the Church. The children were not bastards, either at common law or by the statutes of Alabama. Therefore when, after emancipation, they were elevated to citizenship, their herit- able blood was restored. Accordingly the conclusion was, that such children are entitled to inherit the estate of their father, a free person of color, who died prior to emancipation, the same remaining in the hands of his administrator, and unclaimed by the State up to that time.^ At a yet earlier date, in 1866, a learned county judge in Illinois went quite as far, and perhaps further, in favor of the offspring of a slave marriage.^ 1 Woods V. Pearce, 68 Ga. 160, refer- And if the estate remains unsettled until ring to Bennett v. Williams, 46 Ga. 399. the disability is removed by emancipation, 2 Harris v. Cooper, 31 TJ. C. Q. B. 182. the trust may be enforced by the courts. 3 McDowell V. Sapp, 39 Ohio St. 558. Hoover v. Brem, 43 Missis. 603. * Ante, § 667. ^ The decision was by Hon. James B. 5 Stikes V. Swanson, 44 Ala. 633. See, BradweU, and it was rendered in his car in connection with this case, Cantelou v. pacity of Probate Judge of Cook County, Hood, 56 Ala. 519. Legacy to Slave which includes the city of Chicago. I emancipated. — According to a Missis- have it before me in a pamphlet entitled sippi case, which perhaps illustrates the " Validity of Slave Marriages." Accord- doctrine of the text, although a legacy ing to the head-note, "Henry Jones, a to a slave was invalid at the time of the negro slave, was married in Tennessee, testator's death, by reason of the slave's by a justice of the peace, to a colored disability to take it, still it may be valid woman the slave of another master, with as a trust in the hands of the executor, the consent of their masters. They had 294 CHAP. XXI.] SLAVEBY AND EMANCIPATION. § 679 § 678. Retroactive Effects. — The foregoing discussions of this chapter have travelled as far over disputed ground as the author deems it best they should go. So he will here simply set down, for the reader's consideration, a doctrine of the Louisiana Court, pertaining alike to the matter of the last sub-title and of this one. It is, in the words of a head-note, that " the marriage of slaves, with their masters' consent, though without civil effects during the slavery of either party, yet when ratified by continued cohabitation of the parties, after the emancipation of both, pro- duces all civil effects ah initio, including the community of acquets and gains." Said Tenner, J. : " The impediments to the civil effects of slave marriages, validly contracted with the consent of the masters, were the consequence of their civil status, the arti- ficial creature of the law, and when, by change of laws, such status was altered to one permitting the full civil effects of their marriage, and the parties thereafter continued to cohabit, such ratification retroacted to the date of the original marriage and entailed all the civil effects ah initio." ^ § 679. The Doctrine of this Chapter restated. Slave marriages, when spoken of in contrast to the marriages of freemen, were termed void. For they did not and could not produce the effects of free marriages, because those effects were incompatible with the state of slavery. The slave wife was com- pelled to obey her master, not her slave husband. He could administer to her only such support, comfort, and protection as the master permitted, and not what the law required of a free- man in respect of his free wife. The property of the slave vested in his master, so the former could not be compelled by the law to bestow any part of it on his slave wife. And these illustrations may stand for all. Yet still the marriages of slaves were recog- nized by universal custom, known both to the courts and to the people, therefore they had in law every effect which could be one child while in slavery, the fruit of Henry Jones, and, as such, entitled to in- such marriage, called Matt. C. Jones ; herit his estate, notwithstanding the fact the mother died in slavery. Jones and that his parents were slaves at the time of Matt. C. were afterwards emancipated, their marriage and his birth." Held, after the death of Henry Jones, i Boss v. Ross, 34 La. An. 860, 862. that such marriage was not void ; and See ante, § 666. that Matt. C. was the legitimate son of 295 § 679 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. giveu them -without interfering with the rights of the master or the policy whereon the institution of slavery rested. Emancipa- tion, especially the total abolition of slavery in a State, termi- nated the consequents of slavery, as well as the central thing itself, the same as the felling of a tree brings down equally the branches and the trunk. Thus the question stands, viewed with respect to the future of the freedmen. We have not much dis- cussed retrospective effects. It is just, and conformable to prin- ciple, that, as in slavery the marriages were dissoluble by the will of the parties, so in freedom they should not be transmuted into indissoluble unions until they have given thereto their consent. But legitimacy is different. The status is not, like marriage, created by consent. Children cannot say whether they shall be legitimate or bastards. The products of slave marriages were not bastards in slavery, and it would be giving freedom a strange effect to hold it as bastardizing them. Therefore, as they cannot be legitimate after the manner of slaves, freedom makes them legitimate after the manner of freemen. 296 CHAP. XXII.] RACE AND CIVIL CONDITION. § 683 CHAPTER XXII. OTHER IMPEDIMENTS OP RACE AND CIVIL CONDITION. § 680, 681. Introduction. 682-693. Marriages between Whites and Negroes. 694. Other like Marriages. 695. Doctrine of Chapter restated. § 680. Here — Elsewhere. — We shall in this chapter consider only the effects of the impediments in the States creating them. What pertains to the conflict of laws is for a chapter further on.^ §681. How Chapter divided. — The principal matter relates to, I. Marriages between Wliite Persons and those of the Negro Race. Something will follow concerning, II. Other like Marriages. I. Marriages between White Persons and those of the Negro Race. § 682. Indians. — Our North American Indians have been in- cluded in some of the statutes now to be considered, but they are not so generally. Thus, — §683. In General — (Whites and Blacks or Indians). — It is the policy of many of our States, originally adopted when the distinctions of race were broader legally than now, yet still widely continued, to inhibit by statutes intermarriages between persons of the negro, including sometimes the Indian, and the white races. A statute to this effect prevailed in Massachusetts until 1843, when it was repealed.^ The great inhibiting power is the natural indisposition of the white and black races to mingle in matrimony ; the mulattoes spring almost entirely from illicit connections. Where the disposition to either form of amalga- 1 Post, c. 29. Brady, 9 Humph. 74 ; Bailey v. Fiske, 34 2 See Medway v. Natick, 7 Mass. 88; Me. 77 ; S. v. Fore, 1 Ire. 378 ; S. v. Ross, Medway v. Needham, 16 Mass. 157,8 Am. 76 N. C. 242, 22 Am. R. 678; S. u. Ken- D. 131 ; S. V. Hooper, 5 Ire. 201; S. v. nedy, 76 N. C. 251, 22 Am. R. 683. 297 § 688 MARKUGE CONSTITUTED, NULLITIES. [BOOK III. mation exists, legislation has little or no power to restrain it. In neither case are the children permitted to choose, so that the statutes we are considering operate chiefly in punishing the inno- cent for a disobedience over which they had no control.^ § 684. Interpretation. — The chief legal difficulty under our pres- ent head is in the interpretation of the statutes. And this relates largely to the meanings of the words indicating the persons to whom they apply ; as — § 685. "Negro." — This word generally denotes a black person descended from the Southern African races, and it does not ordi- narily include^ a — § 686. "Mulatto." — Properly a mulatto is a person one of whose parents is wholly black and the other wholly white ; but the word does not always, yet perhaps it does generally, require a mixture of blood so exactly even, nor is its signification quite alike in all the States.^ § 687. "Person of Color" — "White Person." — A small quan- tity of white blood, or of black, will not prevent one possessing it from being designated by his prevailing color. If there is any rule, it is that it must, to have this effect, amount to one fourth, — as to which, opinions are not quite uniform. " Some courts," said Shepley, C. J., " appear to have held that a person should be so regarded [as white] when his white blood predominated both in proportion and in appearance. Those least disposed to consider persons to be white who have any proportion of African blood, have admitted that persons possessing only one eighth part of such blood should be regarded as white." * The North Carolina stat- ute, which prohibits marriage between white persons and " per- sons of color," is construed to include in the latter class all who are descended from negro ancestors to the fourth generation in- clusive, though one ancestor of each generation may have been white.^ § 688. Estoppel as to Color. — It seems there may be cases wherein one will be estopped^ to deny that the party is of the color which will make the marriage valid.^ ^s^ 1 And compare with ante, § 385-389. cisely as to these several terms, Bishop 2 Bishop Stat. Crimes, § 274. Stat. Crimes, § 274. 3 lb. 6 Ante, § 327, 331-335. * Bailey v. Fiske, 34 Me. 77. ' Dillon v. Dillon, 60 Ga. 204. Com- 6 S. V. Watters, 3 Ire. 455. And see S. pare with The City v. Williamson, 10 V. Melton, Busbee, 49. See more pre- Philad. 176. 298 CHAP. XXn.] RACE AND CIVIL CONDITION. § 692 § 689. Emancipation and Constitutional Amendments. — Neither by interpretation,! nor as a question of constitutional law,^ have the emancipation of the slaves and the amendments of the Federal Constitution attending thereon either abrogated these statutes or effected any change in their force and meaning. The complete jurisdiction of the States over marriage within their respective territorial limits^ remains in them as before. § 690. State Constitutional Provision. — There is, or was, in Georgia a provision of the Constitution that " the social status of the citizen shall never be the subject of legislation." It oper- ates equally to restrain the legislature from enacting new laws on the subject and from abrogating the former ones. So it does not annul a statute prohibiting the intermarriage of whites and blacks.* § 691. Clause of Nullity — (Void or not). — Generally the stat- utes on this subject have an express clause of nullity, making the forbidden marriages "void." So no suit is required to set them aside ; either party is free to contract a real marriage, and none of the legal consequences of marriage flow from them.® If there should be a statute which merely inflicts a penalty for entering into the marriage, or merely prohibits it without an express pen- alty, but containing no clause of nullity, then plainly, on prin- ciple, the marriage would be good.^ Possibly there are cases furnishing room for this distinction and it did not occur to the judges." The terms " marriage cannot be contracted between a white person and a negro, mulatto, or person of mixed blood to the third generation inclusive," are deemed sufficiently to convey the idea of nullity though the particular word "void" or "null" does not appear.^ § 692. Constitutional Incapacity to contract. — A constitutional provision that all contracts with negroes thereafter coming into the State shall be void, was held to render null a marriage be- 1 S. V. Hairston, 63 N. C. 451 ; S. r. » Ante, § 155. Eeinhardt, 63 N. C. 547. < Scott v. S. 39 Ga. 321. 2 Ante, §155; Ex rel. Hobbs, 1 Woods, ^ Succession of Minvielle, 15 La. An. 537; Frasher v. S. 3 Tex. Ap. 263, 30 Am. 342 ; ante, § 424. R. 131 ; S. V. Gibson, 36 Ind. 389, 10 Am. « Ante, § 423-436. R. 42 ; Lonas v. S. 3 Heisk. 287; Green v. '' Ante, § 664. S. 58 Ala. 190, 29 Am. R. 739 ; Hoover v. ^ Carter v. Montgomery, 2 Tenn. Ch. S. 59 Ala. 59. See also Jones v. Jones, 216, 225. 36 Md. 447, 11 Am. R. 505; Hart v. Hoss, 26 La. An. 90. 299 § 695 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. tween a free negro man and a free negro woman, the latter of whom came into the State after it was adopted.^ § 693. Free Negroes and Slaves. — There were formerly stat- utes forbidding free negroes to intermarry with slaves without the consent of the masters.^ Such marriages would, of course, if there were no statute, be substantially void on principles already considered ;^ for the incapacity of the enslaved party would con- stitute as effectual an impediment as if it attached to both. II. Other like Marriages. § 694. Civil-law Impediments. — Says Burge : " There were cer- tain impediments to marriage peculiar to the civil law, which are not adopted in the codes of otlier countries. These were impedi- ments described as being ex causa potestatis. Thus, a tutor or curator could not marry his ward until his office had terminated, or unless his accounts had been passed. A person administering a government or public office in a province, and the members of his family, were not permitted to intermarry with a person domi- ciled in his province, unless they had been betrothed to each other before he had accepted the office. Notwithstanding these prohi- bitions, the subsequent voluntary cohabitation of the parties, after the relation which caused the prohibition had ceased, rendered the marriage valid ab initio."^ § 695. The Doctrine of this Chapter restated. There were some early attempts, by statutory inhibition, to pre- vent marriage between white persons and Indians. But in the main they were long ago abandoned. Whether the mixing of the black and white races is an evil or a blessing is a question on which opinions differ. The white race has been always too much inclined to mix with the black by illicit intercourse, yet rarely by marriage. Hence through bastardy we have all shades of color. Largely, in our States, there are statutes apparently aimed to protect bastardy from being contaminated by legitimacy, rendering the few intermarriages we have between the two races void. We need not repeat how they are interpreted. 1 Barkshire v. S. 7 Ind. 389, 65 Am. D. = Ante, § 653 et seq. 738. * 1 Burge Col. & For. Laws, 138. 2 S. ■-. Roland, 6 Ire. 241. 300 CHAP. XXIII.J IMPEDIMENTS FOLLOWING DIVORCE. § 698 CHAPTER XXIII. IMPEDIMENTS FOLLOWING DIVORCE. § 696, 697. Introduction. 698-702. In Absence of Statutory Provisions 703-710. Impediments created by Statutes. 711. Doctrine of Chapter restated. § 696. Elsewhere. — So mucli of the subject of this chapter as concerns the conflict of laws will be considered iu its more appropriate place further on.^ The rest might be reserved for the second volume, where we shall take an enlarged view of the consequences of divorce ; but for the completeness of the dis- cussion of the impediments to marriage, the elucidations to be given in the present chapter appear necessary here. What may seem to be omitted will be found in the other connections. § 697. How Chapter divided. — We shall consider, I. How in the Absence of Statutory Provisions ; II. Impediments created by Statutes. I. How in the Absence of Statutory Provisions. § 698. Husband without Wife, or Wife without Husband. — It has already been in various places explained, and it is palpable on the mere suggestion, that matrimony exists only in pairs, and that a husband without a wife or a wife without a husband is, equally in natural reason and in law, an impossibility .^ For as one can- not enter into a marriage without the other's joining therein, so one cannot remain in a marriage after the other has stepped out. And as a shoe consists of the upper and sole, duly united, and the divorce of either from the other leaves what is not a shoe, so marriage is the combining of a man and woman into a status of 1 Post, c. 29. 2 Ante, § 246, 247, 295, 327, 331. 301 § 701 ^ MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. matrimony, and the severance of either from the combination ter- minates the status. This principle is oftenest illustrated in the death of a married party ; no one ever pretended that when a husband or wife is dead, the other remains married. But — § 699. Judicial Blunderings. — Plain as this matter is, some of our courts have experienced great difficulty in seeing it in cases wherein, by the form or by the necessary direct operation of a decree of dissolution, simply one of the married parties has been taken out from the matrimonial condition. So that when the divorcing tribunal had a lawful jurisdiction over one only of the parties, — as, for example, where the other was domiciled in a foreign country or in another State, — or when the decree by its terms was a divorce only of the applicant, and in various other circumstances analogous, some of our judges (not the majority, but some) have persisted in assuming, though never in words asserting, that the undivorced husband or wife remains in matri- mony, just as an apple unsold on the apple-woman's stand retains its former ownership and conditions, though a purchaser has taken away an apple from its side. Now, — § 700. Not Law. — This assumed doctrine, being an assertion of what in the nature of things is impossible, if it were entertained by every judge who ever sat upon a bench and were repeated in every decided case, would not become law.^ A thing which can exist only in pairs cannot continue its existence after one of the two constituents is removed. A single piece of steel is not a pair of scissors ; two pieces, of proper hape and duly united, con- stitute sucli scissors. If now you sever one of the pieces, what is left? We have judges who would reply, "A scissor/" To illustrate, — § 701. Absurd Ruling — (Polygamy). — A wife lived in Ohio and her husband in New York, whereupon the Ohio Court, by a decree of divorce rendered on her prayer, severed the matrimonial cord which joined her to her husband. And the New York Court held that this action of the Ohio tribunal was competent, and that the Constitution of the United States made the decree binding equally in New York as in Ohio. The woman being a citizen of Ohio, it validly transmuted her status to that of a single woman. But the New York Court had as good a right to interfere with the condition of the man as the Ohio one with that of the woman. 1 Bishop First Book, § 455, 456. And see 2 Bishop Crim. Proced. 3d ed. § 587. 302 CHAP. XXIII.j IMPEDIMENTS FOLLOWING DIVORCE. § 705 So when the man, by a decree binding equally in New York and in Ohio, had thus ceased to have a wife, then had remarried, the majority of the bench in New York adjudged that he was properly convicted of polygamy ^ To continue the illustration : New York was as well entitled to hang the husband as Ohio to hang the wife ; if, then, Ohio had meddled with his matrimonial status by hanging her, would his marriage in New York have been polyg- amy ? Proceeding now to the true — § 702. Judicial Doctrine. — " With the dissolutibn," by a divorce from the bond of matrimony, said Field, C. J., " the obligations arising from the marriage are completely discharged, and the parties stand in the same position as though such marriage had never been contracted."^ And in the second volume, and in other places, we shall have abundant occasion to see that our judges in general discern, affirm, and act upon the doctrine just stated, whereby one is made a single person by ceasing to have a husband or wife, equally whether the release comes from the death or divorce of the other. One of the consequences of the release is the acquired liberty to form a new matrimonial alliance. But — II. Impediments created hy Statutes. § 703. Statutory Restrictions on Remarriage. — It is probably competent for legislation, from whatever reasons may seem just, certainly as a penalty for a breach of matrimonial duties, to for- bid a class of persons to marry. Tlierefore by statutes in some of our States, those for whose fault divorces are given are pro- hibited remarriage, either generally, or within a specified period.^ Therefore also, — § 704. Retrospective — (Ex post Facto). — Such a statute may properly be made in its terms to apply to past transactions, or may be so interpreted ; and, though retrospective, it is not uncon- stitutional. Nor is it an ex post facto law.* § 705. Reasons. — This form of restriction is a peculiarity of American law, limited to a part of the States. On the question 1 p. c. Baker, 76 N. Y. 78. Thompson v. Thompson, 114 Mass. 566 ; 2 Barher v. Barber, 16 Cal. 378. Peugnet v. Phelps, 48 Barb. 566. 3 Cox V. Combs, 8 B. Monr. 231 ; * Elliott v. Elliott, 38 Md. 357 ; Spar- hawk V. Sparhawk, 114 Mass. 355. 303 § 706 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. of its wisdom opinions are divided. Plainly, a person who has conducted badly in one matrimonial alliance has no claim to be protected in another ; but, in divorce law, we are to consider more the interests of the public than of individuals. And all punish- ment, for whatever dereliction,^ especially therefore for a matri- monial one, should be of a sort to benefit, not prejudice, the public. So that a man who has been unfaithful to a particular marriage, if he is to be punished therefor beyond having it dis- solved, should be shut up, — not left at large under disabilities goading his evil nature, after having wronged one woman, to wrong as many more as he can seduce. If marriage is ever a protector of the public virtue, it is specially such when a bad man is held by the cords of a domestic affection from preying upon the female part of the community abroad. Some, indeed, apprehend that liberty of marriage to the guilty after divorce will induce those who are weary of their matrimonial connections to commit offences for the sake of the hoped-for release. But experience shows that such is not often the consequence ; and no high injustice is committed if an innocent person, bound to an- other who will do this, is set free. § 706. Marriage with Partner in Adultery. — There is in Scot- land a form of the prohibition which, though it exists in two or three of our States,^ is substantially unknown with us. It is that the guilty party divorced for adultery shall not marry the parti- ceps criminis? This impediment is said to have had an early existence in the canon law, into which it was introduced from the Roman, though the former was afterward changed; but by some means the old rule became established in Scotland.* In England, while divorces dissolving valid marriages were granted only by act of Parliament, there was a standing order of the House of Lords that every divorce bill brought in should contain a clause of this sort. " The exigency of this standing order," says Macqueen, " makes it of course imperative to introduce such a clause into every bill of divorce for adultery ; but though required in the bill the clause is not retained in the act, the usual course being that some noble lord in committee moves to have it struck out, — a motion which either passes without resist- 1 1 Bishop Crim. Law, § 209-211. been one of these States, and I presume it '^ For instance, in Tennessee, Owen ■». so remains. Bracket, 7 Lea, 448. Pennsylvania has ^ Donglas w. Douglas, Mor. Diet. 329. * 1 Tras. Dom. Rel. 82. 304 CHAP. XXIII.] IMPEDIMENTS FOLLOWING DIVORCE. § 707 ance, or, should resistance be offered, it is overruled, — all the feelings of humanity, and all the dictates of policy, suggesting that the guilty parties ought not to be debarred from making amends to social order by entering into matrimony. To prevent marriage in such a case would be but to prolong the unseemly spectacle of adultery, and to inflict bastardy on tlie innocent and helpless offspring." ^ § 707. Interpreted — (Clause of Nullity). — In a preceding chap- ter, we saw how statutes impeding marriage, or requiring for- malities in its solemnization, are interpreted. ^ The principles there explained should govern the construction of these provis- ions in restraint of marriage after divorce. The fact that they are penal does not impair the validity of the marriage itself, in the absence of a clause of nullity.^ But a statute conferring a capacity to marry, where it did not before exist, is to be rendered differently from one directing how an already existing right to marry shall be exercised ; the terms of the capacitating provis- ion furnish the measure of the right.* Thus, a divorce statute having declared that " where a marriage is absolutely annulled, the parties shall severally be at liberty to marry again, but a defendant who has been guilty of adultery shall not marry the person with whom the crime was committed during the life of the former husband or wife," a marriage violative of the inhibit- ing clause was adjudged void ; for all the parts of a law must be interpreted together.^ The terms of our statutes on this subject differ ; perhaps some of the decisions on them were inadvertent, the attention of the court not having been directed to the true principles of construction. Yet, from whatever reason, the courts appear to have generally regarded this sort of provision as, of course, making the marriage void ; ® but some of the cases inti- mate pretty distinctly that it is only voidable at the most, per- ' Macq. Pari. Pract 509. But for this query there can be no occa- 2 Ante, § 423-436. sion, as will appear from the explanations 8 Ante, § 433, 434. in the first sub-title of this chapter. * Ante, § 430, 431, 436. 6 Cox r. Combs, 8 B. Monr. 232 ; Pons- 5 Owen V. Bracket, 7 Lea, 448. For a ford v. Johnson, 2 Blatch. 51 ; Haviland like instance of interpretation, see ante, v. Halstead, 34 N. Y. 643 ; Smith v. §436. There was once, in England, even Woodworth, 44 Barb. 198; Marshall u. a doubt expressed whether the disso- Marshall, 4 Thomp. & C. 449, 2 Hun, 238, lution of a valid marriage by statutory 48 How. Pr. 57 ; Reed v. Hudson, 13 Ala. authority operates, without enabling 570; Fuller w. Fuller, 40 Ala. 301 ; Thomp- words, to authorize the parties to remarry, son v. Thompson, 114 Mass. 566. Chichester v. Mure, 3 Swab. & T. 223. VOL. I. — 20 305 § 7^09 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. haps entirely good.^ Now, looking a little further after the principle, — § 708. Further as to which. — If, after a divorce carrying with it the right to remarry, a statute should be enacted forbidding such remarriage, it would subject the divorced person to indict- ment on violating it, even though it was silent as to any penalty.^ But within explanations in the other chapter, interpretation would not expand it to make void the marriage, unless it also contained an express clause of nullity.^ On the other hand, if the same statute which authorized the divorce provided that it should not operate to enable the divorced party to remarry, the case would seem to be that stated in the last section, and a new man-iage in the same State would be void ; though it would be good if contracted in another State or country, — the inhibition not being extra-territorial.* These two propositions, standing at the outer points, are pretty plainly correct; but between them there are various shades and kinds of statutory provision, the effect of which may be more or less open to question. § 709. By Permission of Court, — on special application or other- wise, those whom a general statute forbids to remarry may in one or more of our States have the disability removed. It was so at one time in Massachusetts ; ^ likewise it is so in New York.^ As the proliibition has no extra-territorial effect,'' so this enabling provision applies only to a domestic divorce, a foreign prohibition not requiring removal^ The permission given cannot operate retrospectively, so as to render good a marriage which was void for the want of it.^ The application is addressed to the discre- tion of the court ; and it is familiar doctrine that discretion in a court of justice is judicial, to be exercised according to rule, and not according to the personal views of the individual who hap- pens to be presiding.!" Some cases decided in Massachusetts Park V. BarroD, 20 Ga. 702, 65 Am. Moore v. Moore, 8 Abb. N. Gas. 171 ; jj<, 641 ; Mason v. Mason, 101 Ind. 25. Peck v. Peck, 8 Abb. N. Gas. 400, 60 How. 2 Bishop Stat. Grimes, § 138 ; 1 Bishop Pr. 206. Grim. Law, § 237, 238. ' Ante, § 708. 2 Ante, § 424, 433, 434. " Bullock v. Bullock, 122 Mass. 3 ; G. * Dickson v. Dickson, 1 Yerg. 110, 114 ; v. Lane, 113 Mass. 458, 18 Am. R. 509. Ponsford V. Johnson, 2 Blatch. 51 ; Webb's ^ Thompson u. Thompson, 114 Mass. Estate, Tucker, 372. 566. 5 Sparhawk v. Sparhawk, 114 Mass. i» I Bishop Mar. Women, § 676; Mor- 355 gan v. Morgan, Law Eep. 1 P. & M. 644. « Greene's Case, 8 Abb. N. Gas. 450; 306 CHAP. XXIII.] IMPEDIMENTS FOLLOWING DIVORCE. ' § 710 while this provision prevailed there may be useful in other States ; thus, — § 710. On what Principles. — In one case, where a woman who had been three years divorced for her adultery applied for leave to remarry, it appeared that she had lived with her father since the divorce, and had maintained a good character; she was of suitable age, and, in the opinion of the witness, a fit person to marry. But the presiding judge ruled that, admitting the evi- dence to be true, " it did not establish a case to which the provisions of tlie statute ought to be applied, but that still fur- ther facts should be proved . . . ; that, as a general rule, a party who has violated the obligation of the marriage covenant by committing the crime of adultery is not entitled to the confidence of the court, nor to a decree that certifies such confidence, and may enable the party to practise deceit on another party ; that there are a great many exceptional cases, to which the statute may be usefully applied ; for example, a party who has been absent from the State for a few months may, on his return, find a decree of divorce against him, upon notice published . in a newspaper which never reached him, and upon ex "parte evidence, which might have been refuted if he had been present ; or perhaps he may prove extenuating circumstances and repentance, and a thorough change of principles and character. But if the statute were to be construed as the petitioner contends it should be, it would operate as a temptation to any party desiring to get rid of a husband or wife to commit adultery in some place beyond the jurisdiction of our criminal courts, as a convenient method of accomplishing the object by the instrumentality of this court ; and the discretion of the court ought to be exercised with the greater caution, because hearings on such petitions are ex parte, there being no person in- terested to oppose them, or inform the court of the whole truth of the case." Consequently he ordered her petition dismissed. But the full court reversed the order, Dewey, J., observing : " No exception lies to the ruling of a judge upon a matter simply discretionary. Had the ruling in this case been of this character, it would not be open to review upon this bill of exceptions. But the court in the present instance have ruled as a matter of law, that, upon the facts offered in evidence and conceding them to be true, they did not establish a case to which the provisions of Stat. 1864, c. 216, ought to be applied. This abstract proposi- 307 § 711 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. tion, we think, was not correct. Such' evidence certainly was not conclusive, and a broad field for discretion is open to the presiding judge upon all the surrounding circumstances and facts bfearing upon the particular case. But in the absence of any such other facts unfavorable to the petitioner, we think the evidence offered in the present case might be deemed sufficient to authorize the granting of the petition, and it would be competent for the court to grant it." ^ In another case the full court held that, in its own language, " a man who, with notice and opportunity to meet the charge, allows a decree of divorce to be obtained against him upon the ground of any condition of mind or body or religious association which by law renders him unfit for the marriage state, is not to be granted leave to marry again, without proof that he has changed his condition in this respect." ^ § 711. The Doctrine of this Chapter restated. The public interests are the leading consideration in divorce questions. In mere private justice, the party for whose fault a divorce is given should not be permitted to remarry. But matri- mony is the restraining power which keeps society decent, to say nothing of the higher blessings which flow from it. Therefore in most of our States, and commonly in other countries, the party in the wrong as well as the one in the right is permitted after a divorce to remarry. In some of our States he is forbidden, yet in some of these the court on special cause shown may release him from the disability. It is not necessary to repeat here the princi- ples by which these statutes are interpreted. They apply only to domestic divorces, and are without extra-territorial effect. In the absence of a provision forbidding, a divorce dissolving the mar- riage, whether in terms operating on both parties or on one, leaves both free to remarry. 1 Cochrane, Petitioner, 10 Allen, 276. ^ Child's Case, 109 Mass. 406, 408. 308 CHAP. XXIV.] PEIOR MARRIAGE UNDISSOLVED. § 714 CHAPTER XXIV. THE IMPEDIMENT OP A PRIOR MARRIAGE UNDISSOLVED. § 712. Introduction. 713-7161 Penal Consequences. 717-722. Direct Civil Effects. 723-728. Collateral Eesultings. 729. Doctrine of Chapter restated. § 712. How Chapter divided. — We shall consider, I. The Penal Consequences; II. The Direct Civil Effects; III. The Collateral Resultings. I. The Penal Consequences. § 713. Polygamy, — as a breach of the criminal law, is treated of by the author in another work.^ Only such explanations of it will be given here as may be helpful in the elucidations of the subject of the chapter. §714. Meanings of "Polygamy" — "Bigamy." — The offence of having at one time two husbands or wives, the one de jure and the other de facto, is often or commonly termed " bigamy," though equally well designated by the broader word " polygamy." And the latter has been considered to be, and it certainly is, the more appropriate.^ According to the canonists, a bigamist was one who married a second time, whether the former consort were living or not, or married a widow ; and there were seven distinct connections by wliich it might be committed, so as to create an incapacity for orders.^ But polygamy as understood in our crim- inal law is a different thing ; it consists of an entering in form 1 Bishop Stat. Crimes, § 577-613. ^ Poynter Mar. & Div. 142 ; 4 Bl. Com. 2 Shelf. Mar. & Div. 224; 1 East P.C. 163, note. 464 ; 20 How. St. Tr. 358, note. 809 § TIT MARRIAGE CONSTITUTED. NULLITIES. [BOOK III. into a marriage, by one liaviug a husband or wife, with anotlier person.i Further as to which, — § 715. Crime Explained. — In England, polygamy was always punishable canonically, but it seems not to have been otherwise an offence until the reign of James I.^ Then 1 Jac. 1, c. 11 (a. d. 1604), made it felony if committed "within his Majesty's domin- ions of England and Wales ; " except where the former husband or wife had continually remained seven years beyond sea, or the same period within his Majesty's dominions not known by the other to be living, or was " divorced," ^ or where there had been a sentence of nullity, or the parties to the former marriage were within the age of consent. Subsequent legislation, English and American, has adhered to the general form of this statute, yet corrected some of its defects. Particularly has not a mere di- vorce from bed and board, or judicial separation, been for a long period in England a protection against the penal consequences of a second marriage, nor has a seven years' residence beyond sea where the absent party was known to the other to be living.* In most or all of our States, there are statutes in substantial accord with the later English ones, yet more or less varying from them and from one another. Now, — § 716. Distingmshed. — The civil consequences of a polygamous marriage should not be confounded with the criminal, created by the above-described statutes. Criminal liabilities and civil are distinct,^ — the civil being the objects of our present search. n. The Direct Civil Effects. § 717. Invalidity of Marriages — (Void). — The statutes of poly- gamy, just described, are without effect upon the question of the validity of the polygamous marriage. The rule as to which is, that, while a first marriage subsists undissolved, a second is void, even though by reason of some exception in the statute against 1 See Bishop Stat. Crimes, § 577 et ^ Rex v. Lolley, Euss. & Ry. 237. seq. * Bishop Stat. Crimes, § 581 ; Shelf. 2 lb. § 579 ; Poynter Mar. & Div. 144. Mar. & Div. 226 ; Rogers Ec. Law, 2d ed. East says, that until this time it was left 634. As to what kind of marriage the of " doubtful temporal cognizance ; " but second must be, see Rex v. Penson, 5 Car. "so early as the Stat. 4 Edw. 1, c. 5, rfe & P. 412. bigamis, it was treated as a capital ofience, ' 1 Bishop Crim. Law, § 264 et seq. and ousted of clergy by that statute." 1 East P. C. 464. 310 CHAP. XXIV.J PRIOR MARRIAGE UNDISSOLVED. §719 polygamy, or by force of some principle of the common law of crimes, the person entering into it should be exempt from the statutory punishment.^ It would be competent for legislation to provide otherwise ; as, — § 718. Voidable in New York. — We have seen that, in New York, a second marriage after an absence of five years by a hus- band or wife supposed to be dead is only voidable. This is by force of statutory terms not generally found in the other States.^ § 719. Effect of Void. — The consequence of holding the second marriage in these cases void is that, practically desirable as may be a nullity sentence pronouncing it such,^ it is, in law, just as destitute of effect without the sentence as with it.* Or, as ex- pressed by Wayne, J., " a void marriage imposes no legal re- straint upon the party imposed upon ^ from contracting another ; 1 Teter v. Teter, 88 lud. 494 ; Cart- wright «. McGown, 121 HI. 388, 2 Am. St. 105 ; DreDiian v. Douglas, 102 111. 341, 40 Am. R. 595 ; Kenley u. Kenley, 2 Yeates, 207 ; Poynter Mar. & Div. 145 ; Williamson v. Parisien, 1 Johns. Ch. 389 ; Feuton v. Eeed, 4 Johns. 52, 4 Am. D. 244 ; Miles v. Chilton, 1 Rob. Ec. 684 ; Rogers Ec. Law, 2d ed. 634 ; Bird v. Bird, 1 Lee, 621 ; Searle v. Price, 2 Hag. Con. 187, 4 Eng. Ec. 524 ; Bayard v. Morphew, 2 Phillim. 321 ; Duins v. Donovan, 3 Hag. Ec. 301, 309; Sellars v. Davis, 4 Yerg. 503 ; Jones v. S. 5 Blackf. 141 ; Young v. Naylor, 1 Hill Eq. 383 ; Smith u. Smith, I Tex. 621, 46 Am. D. 121 ; Zule v. Zule, Saxton, 96 ; Ganer v. Lanesborough, Peake, 17 ; S. w. Moore, 3 West. Law Jour. 134 ; Martin v. Martin, 22 Ala. 86 ; Heffner v. HefCner, 23 Pa. 104 ; Spicer v. Spicer, 16 Abb. Pr. N. s. 112; S. c. Good- rich, 14 W. Va. 834 ; Carmena v. Blaney, 16 La. An. 245; Lindsay v. Lindsay, 15 Stew. Ch. 150; Glass v. Glass, 114 Mass. 56S. In a Maine case the judges seem of opinion, though this is not the point ad- judged, that, under the Massachusetts statute, if a woman whose husband has absented himself seven years, and is be- lieved by her to be dead, marries again, while in fact he is living, the second mar- riage win be merely voidable, and good until avoided. " It is argued," it was said, " that, though the statute [of Massa- chusetts] purges the felony in all cases within the exception, it does not make such marriages valid. So it has been held under a statute somewhat similar. Fenton u. Reed, 4 Johns. 52. But there are cases in which it is intimated that whatever may be done with impunity can be done legally. Rhea v. Rhenner, 1 Pet. 105 ; C. V. Mash, 7 Met. 472." Hiram v. Pierce, 45 Me. 367, 372, 71 Am. D. 555. Glass V. Glass, supra, was a suit for nul- lity, so it could not directly contradict this dictum. And see Whippen v. Wliippen, 147 Mass. 294. But the law cannot be so ; for the statute is silent as to the validity of the marriage, and the common law never, under any circumstances however excep- tional, accepts as good a marriage while a prior one remains undissolved. Of course, in mere evidence, whenever the law pre- sumes death from an absence, the party impeaching the marriage must show that in fact the absent consort was alive. And see Johnson v. Johnson, 114 111. 611, 55 Am. R. 883 ; Evans v. Stewart, 81 Va. 724; Williams . S. 11 Ala. 289; Goodall ^ Tront v. Drawhorn, supra; Paddock V. Thurman, 1 Head, 209 ; Winchester v. v. Wells, 2 Barb. Ch. 331. See Ex parte Hinsdale, 12 Conn. 88, 93 ; Trout v. Draw- Hunt, 5 Cow. 284. horn,57Iud. 570; 1 Bishop Crim. Proced. ' Ante, § 732. 320 CHAP. XXV.J CONSANGUINITY AND AFFINITY. § 747 fair interpretation may be deduced from it." ^ So the judicial exposition of " God's law," '■^ extending beyond any words in it, was, that for the suppression of " jealousies " in the family, and to secure the proper education of the children, no possibility should be held out for the man, on his wife's death, to marry his present mother-in-law ! Still, — § 744. Who deemed of Kin in Affinity. — In applying this rule, while thus the one party's relatives by blood are regarded as the other's by affinity, the kindred of the one are not deemed the other's kindred.^ So that, for example, the husband's brother may marry the wife's sister ; * father and son may marry mother and daughter ; ^ and a man may marry the widow of his former wife's brother.^ § 745. Secondly. Illegitimate Children : — Same as Legitimate. — Returning now to the reasoning from the law of nature,'^ illegitimate children are the same as legitimate in respect both of consanguinity and affinity ; " for the disqualifica- tions of bastardy are of civil institution only, and do not intrin- sically weaken the natural ties of kindred," ^ — more accurately, do not affect the quality of the blood which parentage imparts to the offspring. §746. Thirdly. Limit of Incapacity : — What. — The incapacity for marriage extends to the entire ascending and descending line, and to tlie collaterals as far as, and including, the third degree of the civil reckoning. In thi? method of computation, we go from the prcepositus up to the com- mon stock, thence down, counting one degree for each step.* To illustrate, — § 747. Forbidden — Permitted. — Under this statute it is in- cestuous for a man to marry his deceased wife's sister,!" or for a 1 Butler V. GastrUl, Gilb. Ch. 156, 158. Shelf. Mar. & Div. 174 ; Reg. v. St. Giles, 2 Ante, § 737. 11 Q. B. 173, 244; Horner v. Liddiard, 1 3 1 Bishop Grim. Proced. § 901 ; Pad- Hag. Con. 337, 352 ; Haines v. Jescott, 5 dock «. WeUs, 2 Barb. Ch. 331. Kelly y. Mod. 168; s. c. nom. Hains v. Jescot, Neely, 7 Eng. 657, 56 Am. D. 288, pro- Comb. 356 ; Blackmore v. Brider, 2 Phil- ceeded on a contrary doctrine. lim. 359, 361 ; Gibs. Cod. 412 ; Woods v. * Shelf. Mar. &Div. 174 ; Wood's Civil Woods, 2 Curt. Ec. 516, 521, 7 Eng. Ec. Law, 119; Poynter Mar. & Div. 117. 181, 182 ; Morgan v. S. 11 Ala. 289, 291 ; 5 Oxenham v. Gayre, Bacon Abr. tit. Reg. !i. Brighton, 1 B. & S. 447. But see Mar. & Div. (a). S. v. Roswell, 6 Conn. 446. 6 Taylor Civil Law, 339. » Butler v. Gastrin, Gilb. Ch. 156, 158, ' Ante, § 732. 159. 8 Poynter Mar. & Div. 118 and note; " Hill v. Good, Vaugh. 302; Ray v. VOL. I, — 21 321 § 750 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. woman to marry her deceased husband's brother,^ or for a man to marry his deceased wife's sister's daughter,^ or his deceased wife's mother's sister,^ or his own sister's * or brother's ^ daughter, or the daughter of his deceased wife by a former husband ; ^ these all being of the second or third degree, either of consanguinity or affinity. But a man may marry the widow of his great-uncle,'^ she being in the fourth degree from him ; and the statute in terms recognizes the right of cousins-german, also of the fourth degree, to intermarry. § 748. Fourthly. Half Blood: — Same as Whole. — The relationship by half blood is the same in these cases as by whole blood; so that, for example, it is incestu- ous for a man to marry the daughter of his brother of the half blood,^ or the daughter of his half-sister.^ III. Our Statutes and their Resultings. § 749. General. — In most of our States, probably in all, there are statutes specifying the relationships within which marriage is forbidden. So that our law of the subject is, in one view, statu- tory ; yet the statutes are but augmentations and qualifications of the unwritten law explained in the last sub-title. In form, few or none of them refer to " God's law " or to the " Levitical degrees " for the prohibiting rule, but they state the particulars more nearly after the manner of Archbishop Parker's Table of Degrees.^* As to — § 750. Affinity. — There is no just ground to suppose that a statute with us forbidding a man to marry his sister would by any court be construed to include the sister of his deceased wife ; or, Sherwood, 1 Curt. Ec. 173 ; Reg. v. Chad- * Watkinson v. Mergatron, T. Eaym. wick, 12 Jur. 174, 11 Q. B. 173. 464 ; Woods v. Woods, 2 Curt. Ec. 516, 1 Aughtie V. Aughtie, 1 Phillim. 201, 1 7 Eng. Ec. 181 ; Burgess v. Burgess, 1 Eng. Ec. 72. Hag. Con. 384. 2 Man's Case, Cro. Eliz. 228 ; s. c. nom. ^ Murgatroyd v. Watkinson, T. Jones, Mann's Case, Sir E. Moore, 907; Wortly 191. V. Watkinson, 2 Ley. 2.?4, 3 Keb. 660 ; « Blackmore v. Brider, 2 Phillim. 359. Whithipole's Case, cited in Howard v. ' Harrison v. Burwell, 2 Vent. 9, Bartlett, Hob. 181; Snowling «. Nursey, Vaugh..206. 2 Lutw. 1075 ; Denny v. Ashwell, 1 Stra. * Oxenham v. Gayre, Bac. Abr. tit. 53 ; Clement v. Beard, 5 Mod. 448 ; Co. Mar. & Div. (a). See also, as to the pro- Lit. 235 ; EUerton v. Gastrell, 1 Comyns, hibited degrees, Gibs. Cod. 412-414. 318. ' Reg. V. Brighton, 1 B. & S. 447. s Butler v. Gastrin, Gilb. Ch. 156. " Ante, § 739. 322 CHAP. XXT.] CONSANGUINITY AND AFFINITY. § 753 forbidding him to marry his daughter, as including the daughter of his deceased wife by a former husband. i But the special terms of a provision may compel this sort of rendering ; thus, — §751. "Brother's Wife." — The inhibition of marriage with a " brother's wife " would, in a monogamous country, be simply ridiculous if interpreted as meaning the undivorced wife of a liv- ing brother ; therefore, to give it a reasonable effect, it has been held to denote the widow — probably also the divorced wife — of the brother.^ § 752. Deceased Wife's Sister. — In England there has been a great deal of quarrelling over the interpretings which forbid mar- riage with a deceased wife's sister.^ And Parliament has often been entreated to permit it by statute, but in vain. Dogma is appealed to as opposing it, and there are those who prophesy enormous evils of a civil sort should the inhibition be removed. It was once unlawful in Virginia,* but the law there is otherwise now.^ And the author is not aware that the prohibition exists in any one of our States, — not doubting the possibility of its linger- ing in some one State overlooked. This sort of marriage is not unfrequently entered into by our wisest and best men ; no social ostracism was ever known to follow, and no pillar of the repub- lic has been picked up shattered thereby. Indeed, it would be difficult to find a person who would object to such a union, or pre- tend that the l.iws permitting it have wrought injury. § 753. Voidable or Void. — In other connections, we have seen that by the unwritten law the marriages considered in this chapter are voidable in the full ecclesiastical sense ; ^ but later, in Eng- land, the statute of 5 & 6 Will. 4, c. 54, has made them, since 1835, void.^ There is no need to repeat the rules of interpreta- 1 Blodget 17. Brinsmaid, 9 Vt. 27, 30. aunt, son's widow, wife's daughter, or her '^ C. V. Ferryman, 2 Leigh, 717. As to grand-daughter or step-daughter, brother's which, see the next section. daughter or sister's daughter. If any 2 Ante, § 747 ; Andrews v. Boss, 14 man have heretofore married his brother's P. D. 15. widow, or the widow of his brother's or * C. V. Ferryman, 2 Leigh, 717. See sister's son, or his uncle's widow, such also Hutchins v. C. 2 Va. Cas. 331 ; C. v. marriage is hereby declared to be legal Leftwich, 5 Rand. 657 ; Kelly v. Scott, 5 and valid, and exempt from the penalties Grat. 479. prescribed by existing laws." * The last Virginia statute on the sub- « Ante, § 255, 259, 262-264, 267, 268 ; ject, which I have seen, is Code of 1887, Hinks ;;. Harris, Carth. 271 ; s. c. nom. § 2224, as follows: "No man shall marry Harris t. Hicks, 2 Salk. 54?; Westby r. his mother, grandmother, step-mother, sis- Westby, 2 Dr. & War. 502, 515, 516. ter, daughter, grand-daughter, half-sister, ' Ante, § 263, 275, 288, 289 ; Reg. u. 328 § 756 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. tion whereby these consequences are wrought out. It is believed that in most of our States these marriages are by statutes void.^ § 754. Legitimacy of Children. — One of the familiar common- law consequences of a void marriage is, that, whether there is a decree of nullity or not, the issue are illegitimate.^ Yet as ex- plained in various places,^ there are in some of our States statutes rendering them legitimate. § 755. "Who sue. — The suit for nullity, on the ground of con- sanguinity or affinity, may in the English practice be promoted by either married party,* or by third persons having an interest in the question.^ And it is no objection to the suit that both parties were aware of the impediment when entering into the marriage.^ § 756. The Doctrine of this Chapter restated. Consanguinity and affinity, as impediments to marriage, are in character quite dissimilar, yet commonly regarded as substantially identical, and treated of together. The former is founded on the law of nature, the latter on theological dogma, though for it some add also various social reasons. Our common law on the subject has come down to us from a statute of Henry VIII., and from in- terpretations thereon by the Church, by the ecclesiastical tribu- nals, by Parliament, and in some degree by the common-law and equity courts. . Qualifying this body of law, we have statutes in our several States defining the degrees within which marriage is prohibited, and some of them determining whether the forbidden marriage is void or voidable, and some lifting the children of the void ones out of the status of illegitimacy. Brighton, 1 B. & S. 447 ; Pawson v. Brown, 2 Ante, § 258, 277, 621 ; Plant v. Tay- 13 Ch. D. 202. lor, 7 H. & N. 211 ; In Goods of Emsley, 1 Ante, § 275, 288, 289. As to South 2 Swab. & T. 491. Carolina, see Bowers v. Bowers, 10 Rich. ^ pg^ example, ante, § 671. Eq. 551, 73 Am. D. 99; S. v. Barefoot, 2 * Shelf. Mar. & Div. 179; Ough., tit. Rich. 209. As to Pennsylvania, Parker's 193, § 15. Appeal, 44 Pa. 309 ; "Walter's Appeal, 70 ^ Ante, § 265. Pa. 392. As to Maryland, Harrison v. S. ^ Andrews v. Boss, 14 P. D. 15, foUow- 22 Md. 468, 85 Am. D. 658. ing Miles v. Chilton, 1 Rob. Ec. 684. 324 CHAP. XXVI.J IMPOTENCE. § 75* CHAPTEE XXVI. IMPOTENCE, OR PHYSICAL INCAPACITY. § 757. Introduction. 758-764. In General. 765-775. Nature and Degree of Incapacity. 776-783. Its Various Forms. 784-789. Remediable or Permanent. 790-796. Effect on the Marriage. 797. Boctrine of Chapter restated. § 757. How Chapter divided. — We shall consider, I. In Gen- eral of this Impediment to Marriage ; II. Specially of the Nature and Degree of the Incapacity ; III. The Various Forms of In- capacity ; IV. Remediable or Permanent ; V. The Effect on the Marriage. I. In General of this Impediment to Marriage. § 758. Doctrine defined. — The doctrine of this chapter is, that, since marriage is a sexual relation, having in view the propa- gation of the species, a man or woman ^ so imperfect in the sex- ual organism as to be perpetually and incurably incapable of the connection which precedes parentage, cannot enter into indissol- uble matrimony with another having no notice of the incapacity. Yet as marriage continues or is properly contracted after the years of fruitfulness have gone by, and as in every aspect mere sterility could not wisely be made a matrimonial impediment, the law's test is simply the ability or inability for copula, not fruitfulness. § 759. otherwise Expressed. — Marriage between two persons of one sex could have no validity, because it would neither pro- mote population nor bring to the parties the solace of the fam- 1 Briggs V. Morgan, 3 Phillim. 325, 1 Eng. Ec. 408. 325 § 762 MARRIAGE CONSTITDTED, NULLITIES. [BOOK III. ily relationship. And where they differ in sex, but their sexual organs are inadequate, the like evils, not necessarily to the same degree, will attend the union. " Without sexual intercourse," said Lord Penzance, " the ends of marriage — the procreation of chil- dren, and the pleasures and enjoyments of matrimony — cannot be attained." ^ Therefore, for a marriage to be entirely good, the parties must have the sexual capabilities essentially complete. Further to explain, — §760. Two Purposes — (Copulation, Procreation). — "As the first cause and reason of matrimony," says Ayliffe, " ought to be the design of having an offspring, so the second ought to be the avoiding of fornication." ^ These two, observes Dr. Lushington, the law recognizes as its " principal ends ; " namely, " a lawful indulgence of the passions to prevent licentiousness, and the pro- creation of children, according to the evident design of Divine Providence." ^ As to — § 761. Procreation. — A man who knowingly marries a woman past the age of childbearing cannot complain of the mere unfruit- f ulness ; * or, if she is within such age, and is capable of copula, he cannot ordinarily show that in fact there is incurable sterility. Indeed medical writers have said, without qualification, that such fact cannot be established,® — a proposition perhaps always true where there is no discoverable malformation. Beyond which, if the fact were ascertainable, it could only be by a course of evi- dence in a court of justice revolting and demoralizing,^ — very much more than the inquiry which stops \f ith that from which issue may, but does not necessarily, proceed. As to the — § 762. Copulation. — When from any cause irremediable the in- ability for it exists, there is a complete failure of one of the ends of matrimony, of a sort to carry with it, as of course, the other ; and so the marriage is frustrate. Quia matrimonium ordinatum fuit, says Oughton, non solum ad evitandum Fornicationem, sed etiam ad proles procreandas ; si Matrimonium (tale quale') fuerit., inter Virum et Mulierem, de facto, solemnizatum, qui omnino inha- 1 G. V. G. Law Eep. 2 P. & M. 287, former in B. v. B. 28 Eng, L. & Eq. 95 ; 291. B. c. in all its stages, 1 Spinks, 248. 2 Ayl. Parer. 360. * Brown v. Brown, 1 Hag. Ec. 523, 3 3 Dr. Lushington, in Deane v. Aveling, Eng. Ec. 229. 1 Rob. Ec. 279, 298 ; Lord Stowell, in ° Guy Forensic Med. Harper's Am. Briggs V. Morgan, 3 Phillim. 325, 1 Eng. ed. 51. Ec. 408, 409. And see observations of the <> Compare with ante, § 566, 567. 326 CHAP. XXVI.] IMPOTENCE. § 764 biles sunt, non propter cetatem, sed propter aliquod naturale im- pedimentum, ad proles suscitandas, utpote, propter impotentiam et frigiditatem, malejicentiam, et similia, quae ipso Jure, reddant hujusmodi matrimonium nullum. Hoec impedimenta naturalia ali- quando contingant, tarn in Muliere, quam in Viro, — et pars gror vata agere potest in causa nullitatis matrimonii} Hence — § 763. Viev»-ed as Fraud — Mistake — Breach of Warranty. — A contract of marriage carries with it the representation of abil- ity to consummate it.^ So that an impotent person, who with knowledge of his incapacity induces another ignorant of it to marry him, commits a gross fraud, as well as inflicts grievous injury;^ or, if he is not conscious of it, he equally violates his contract to the other's detriment. In the former case, the mar- riage would be voidable on the sole ground of fraud, if the prin- ciples governing ordinary contracts were applied to it ; in the latter, it would seem to be equally so on the ground of mistake, and breach of an implied warranty.* Indeed, in Connecticut, the marriage of an impotent person is expressly treated as a " fraud- ulent contract." ^ But — § 764. Unlike Ordinary Fraud. — According to the general and better doctrine, by reason of the special nature of marriage and of the dissimilarity of this transaction to the common cheats in business affairs, an impotent person marrying is not regarded as committing a fraud in the ordinary sense, with its common consequences.* This will appear more exactly in the second vol- ume where the procedure is explained. In ordinary fraud, a suit is maintainable for the damages, but not in a marriage by an impotent person ; in the former, the deceived party may disaffirm the contract in pais, but not in the latter ; ^ the repudiation of the 1 Ough. Ordo tit. 193, § 17. over a right to their persons respectively 2 Poynter Mar. & Div. 123 ; Shelf, for the purposes of marriage ; but making Mar. & Div. 201; Ough. tit. 193, § 17; over the right is, in effect, making over Chitty Med. Jurisp. 378. nothing, where one is impotent or the 3 Briggs u. Morgan, 3 Phillim. 325, 1 other incapable." Ruth. Inst. b. 1, c. 15, Eng. Ec. 408, 410. § 9. See also Rogers Ec. Law, 2d ed. * Ante, § 457, 461, 530. Rutherforth 640. puts the doctrine thus: "This contract, ^ Ante, § 476, note ; Benton i'. Benton, like all others, is binding conditionally, so 1 Day, 111 ; Guilford vi Oxford, 9 Conn, that a failure of performance on one part 321, 327. releases the obligation of the other part. " Burtis u. Burtis, 1 Hopkins, 557, 14 Impotency, therefore, on the part of the Am. D. 563 ; Perry v. Perry, 2 Paige, man, or incapacity on the part of the 501. woman, will set the contract aside. The ' Post, § 790, 791. man and the woman have, in words, made 327 § 767 MAEBIAGB CONSTITUTED, NULLITIES. _ [BOOK III. former must be practically instantaneous, that of tlie latter need not be ; and there are some other dissimilitudes. II. S^pecially of the Nature and Degree of the Incapacity. § 765. Further of Copula and Truitfulness. — Though, as already explained,^ the law's inquiry after impotence is limited to the capacity for copula, and does not extend to that for resulting fruitfulness, yet, as we shall see in this snb-title, pregnancy may in very special circumstances come from a connection too imper- fect to be deemed copula, and if in fact it does, the marriage cannot afterward be treated as null. Hence, and in view of the entire law of the subject, — § 766. Impotence defined. — Impotence is the irremediable physical incapacity of one of the parties to a marriage for any reasonable sexual connection with the other, where no inter- course too imperfect to satisfy this rule has resulted in actual pregnancy .2 To explain, — § 767. As to mere Sterility : — Scotch and Canon Law. — Fraser says, the question is unde- termined in Scotland, whether . the husband's want of power seminandi constitutes impotence, if he has the potentia copu- landi; and, on the other hand, whether a woman with the lat- ter power, but barren, is to be held as impotent.^ But the burden of the complaint in most of the cases he refers to is the inability to beget children. And he adds> : " The 98th con- stitution of Leo, the philosopher, expresses at great length the utter abhorrence of the emperor at the doctrine that the po- tentia oopulandi, without the power of procreating children, was sufficient. The most eminent commentators on the canon law are of the same opinion. Brower argues the point witli great warmth, holding, as his leading principle, that marriage is not instituted for the satisfying of lust, or the exciting of passion, but for the begetting of children.* In a late criminal case, as to whether emissio was necessary to constitute the crime of rape, 1 Ante, § 758, 761, 762. either spouse for the act of copulation, or, 2 Shelford defines impotence as con- as some think, the want of power to pro- sisting "in the incapacity for copulation, create children." 1 Fras. Dom. Eel. 53. or in the impossibility of accomplishing ^ 1 Fras. Dom. Rel. 53. the act of procreation." Shelf. Mar. & * Brower, 2, 4, 10. Div. 202. Fraser: The "incapacity of 328 CHAP. XXVI.] IMPOTENCE. § 770 Lord Medwyn is reported to have said, that he held the potentia oopulandi, without the potentia seminandi, to form a good defence to an action of nullity on the head of impoteucy.^ This must, however, be a misreport, as the opinion is based on that of Sanchez, which is entirely opposite ; for that learned canonist holds it to be impotency if a woman was ita areta ut mater esse non potest? A quotation is professed to be made in the report from Sanchez ; but there is no reference given, and the words quoted seem to be those employed by Sanchez to designate the views of authors that he condemns." * But — § 768. With us — In England. — In common-law countries, the marriage will be good if there is an adequate power of mere copula, though impregnation should be impossible. Thus, in a case before Dr. Lushington, the examiners certified that the woman was capable of performing the act of generation, and of being carnally known by man, but conception could not follow. And this learned judge held the certified fact to be utterly inadequate. " Mere incapability of conception," he said, " is not sufficient ground whereon to found a decree of nullity, and alone so clearly insufficient tliat it would be a waste of time to discuss an admitted point. The only question is, whether the lady is or is not capable of sexual intercourse ; or, if at present incapable, whether that incapacity can be re- moved." * Upon this view of "the law the English and Ameri- can cases all appear to proceed, yet the doctrine has not been much litigated. § 769. As to the Copula : — ■ The Rule — is that, on the one hand, the capacity for an in- tercourse absolutely perfect is not required, yet, on the other hand, what is so incomplete as to be unnatural will not suffice. Thus, — § 770. Penetration Imperfect. — In one case, there was a pene- tration which at first satisfied the ideas of the parties, and even led to medical advice to be more moderate in their intercourse, yet ultimately the marriage was pronounced void on the ground 1 Lord Advocate v. Robertson, 12 Mar. Sanchez repeats very strongly the doc.. 1836, Just. Rep. Coll. App., 1 Fras. Dom. trine laid down in the text. Rel. 53. 8 1 Fras. Dom. Eel. 53-55. See .ilso, ^ Sanchez, 7, 92, nos. 7, 8, 11, and 2, as to the Scotch law, Robertson's Case, 21, 5, and 7, 96, 7. In these passages, 1 Swinton, 93. * Beane i-. Aveling, 1 Rob. Ec. 279. 329 § 771 MAEEIAGE CONSTITUTED, NULLITIES. [bOOK III. that it was so imperfect as to constitute impotence.^ On whicli question of penetration, the facts of the above-mentioned case before Dr. Lushington are more definite. After the report of the examiners was given iu,^ the case being peculiar their testimony was taken, resulting substantially as follows : the external sexual organs, and the development necessary to sexual desire and grati- fication, were perfect ; but the vagina was contracted in depth, admitting of penetration to perhaps less than half the usual extent, and becoming impervious at that depth, where it formed a cul de sac with no communication to any of the internal organs. There was an entire absence of the uterus. The defect had im- proved slightly between the first and final examinations ; but it was deemed incurable, and not capable of any material further im- provement. The restricted depth, therefore, was the only impedi- ment to their intercourse; and from it, thus imperfect, emission could ensue. Upon these facts, and solely because no complete copula could take place, the marriage was declared void. Said the learned judge : " Sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse ; it does not mean partial or imperfect intercourse ; yet I cannot go the length of saying that every degree of imperfection would deprive it of its essential character. There must be degrees difficult to deal with ; but if so imperfect as scarcely to be natural, I should not hesitate to say that legally speaking it is no intercourse at all. I can never think that the true interests of society would be ad- vanced by retaining within the marriage bonds parties driven to such disgusting practices. Certainly it would not tend to the prevention of adulterous intercourse, one of the greatest evils to be avoided." ^ § 771. "Why ? — The learned judge added : " If there be a rea- sonable probability that the lady can be made capable of vera copula, of the natural sort of coitus, though without the power of conception, I cannot pronounce this marriage void. I will very briefly state my reasons. In the case first supposed, the husband must submit to the misfortune of a barren wife, as much when the cause is visible and capable of being ascertained as when it 1 Lewis V. Hayward, 4 Swab. & T. H5, '-' Ante, § 768. reversed by the House of Lords, 35 Law ' Deane v. Aveling, 1 Rob. Ec. 279, J. N. s. P. & M. 105 (as to which case, on 298. And see, for facts very similar, B. a subsequent question of practice, see Law v. B. 28 Eng. L. & Eq. 95 ; s. c. in all its Rep. 1 P. & M. 293). stages, 1 Spinks, 248. 330 CHAP. XXVI.] IMPOTENCE. § 774 rests in indiscoverable and unascertained causes. There is no justifiable motive for intercourse with other women in the one case more than in the other. But when the coitus itself is abso- lutely imperfect, and I must call it unnatural, there is not a natu- ral indulgence of natural desire ; and almost of necessity disgust is generated, and the probable consequences of other connections, with men of ordinary self-control, become almost certain. I am of opinion that no man ought to be reduced to this state of quasi unnatural connection, and consequent temptation ; and, therefore, I should hold the marriage void. The condition of the lady is greatly to be pitied, but on no principle of justice can her calam- ity be thrown upon another." ^ § 772. Our American Cases — are believed to have nothing con- trary to the foregoing ; and the facts of a Maryland one were quite similar to those just stated, and, like them, they were held to justify a decree of nullity. In the words of Bartol, C. J., it ap- peared " that the physical condition of the appellee [the woman] , at the time of the marriage, was that of a very imperfect develop- ment of the sexual organs, both externally and internally. These organs were in a rudimentai-y condition, evincing that their devel- opment had ceased and been arrested before the age of puberty. She had never experienced the monthly sickness to which females of mature age are subject, and was without the natural passion or desire incident to woman. The rudimentary condition of her sexual organs, and their imperfect development, not only ren- dered conception impossible, but there was on her part an inca- pacity for vera copula; that is to say, she was not capable of tlie act of generation in its natural and ordinary meaning, but only of incipient and imperfect coition."^ § 773. As to Procreation without true Copula : — How the Authorities. — On this question we are not greatly enlightened by direct adjudications ; but there appears to be, at least, nothing from the courts contrary to the deductions of reason ; thus, — § 774. How the Facts. — It may transpire that, for example, an extreme brevity of the vagina, admitting of even less pene- tration than in the case wherein Dr. Lushington pronounced the marriage void, and occasioning pain in the imperfect copula, is connected with a perfect uterus, and complete capacity for con- 1 Deane v. Aveling, 1 Rob. Ec. 279, 299. 2 q. „. q. 33 mj. 401, 405. 331 § 777 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. ception;^ or before marriage the man may have suffered an am- putation, and so only slight penetration, much less than what Dr. Lushington terms " ordinary and complete intercourse," can take place, yet conception may follow. Women in these circum- stances, and in others wherein not even the hymen was rup- tured,^ have been known to become pregnant. Now, — § 775. Conclusion thereon. — If, in a case of this nature, the woman conceives, and especially if she bears a living child, is the marriage to be pronounced void ?, Is the child to be made a bastard, and is the woman to be held infamous ? One of the chief ends of marriage has been attained.^ And in every view it would be an unseemly spectacle to annul a marriage for impotence after the woman had, in fact, become pregnant by the man, on an inquiry into the manner of the copula ; and the law is believed not to permit it. In an English case before the House of Lords, where the wife was petitioner, and she had represented herself to have three times miscarried, as probably she errone- ously supposed she had done, while yet the hymen was shown not to be broken. Lord Chelmsford observed : " If a miscarriage actually took place, whatever appearances the person of the appellant may have exhibited, and however imperfect the inter- course may have been, there Is, of course, an end of the appel- lant's case."* III. The Various Forms of Incapacity. § 776. Exist at Marriage. — It being in the nature of this im- pediment to render the marriage void from the beginning, it must, to be effectual, exist at the time of the nuptials." Even though one should become impotent after marriage, as the effect of incontinence before, still the marriage is good, because there was no obstacle to its consummation when it was entered into.® § 777. The Origin — of the impotence is unimportant. If it existed at the marriage, it is equally a ground of nullity whether it existed also at the birth, or came afterward from the party's 1 1 Beck Med. Jnrisp. 10th ed. 107. « Powell v. Powell, 18 Kan. 371, 26 ^ Dean Med, Jnrisp. 6-8. Am. R. 774. ' See 1 Bl. Com. with notes by Chitty ^ Belcher v. Belcher, reported in a sep- and others, 440. arate volnme by Phillimore, June 6, 1835 ; * Lewis !>. Hayward, 35 Law J. n. s. P. Bascomb v. Bascomb, 5 Post. N. H. 267. & M. 105, 107. 332 CHAP. XXTI.] IMPOTENCE. § 778 own fault, from the fault of another, or from an accident for which no one is responsible.^ § 778. Past Childbearing. — In two of the earlier English cases, it was intimated that if a man marries an old woman, naturally- capable, yet past the age of childbearing, with a supervening im- pediment to consummation which has come as a disorder peculiar to advanced years, the court will not interfere for his relief. The primary object of matrimony being issue, " a man of sixty," said Sir John NichoU, " who marries a woman of fifty-two, should be contented to talce her tanquam soror." " Suheunt morli" observes Lord Stowell, " is tlie natural description of late periods of life ; and disorders, when they do come at such periods, must be borne with,"^ — excellent advice to parties already in wedlock. One who proposes marriage to a woman past the age of fruitfulness knows ' Ayl. Parer. 228 ; Devanbagh v. Dev- anbagh, 5 Paige, 554, 557, 28 Am. D. 443 ; Essex V. Essex, 2 How. St. Tr. 785, 795, 804, 849, 857. The case last cited, usually termed the Countess of Essex's, or the Earl of Essex's Case, though possibly of doubtful authority on another question (see post, § 780), is conclusive of the doc- trine of the text. For the commissioners who heard it, among whom were the most able and learned doctors of the age, all deemed it immaterial whether the defect was natural, or superinduced " by acci- dental means ; " and even the Archbishop of Canterbury, rampant in his opposition to the conclusion of the majority on the principal point, still employed in his " speech infended to be spoken " the follow- ing language : " There are three sorts of eunuchs, or men unfit to marry ; the one is of God's making, the second is of man's making, and the third is of their own making. The first are they that are past from their mother's belly, who either are frigidi, or such as have no members fit for generation, or some apparent debility. The second are those who are castrated by men, or by some violence have that hindered in them whereunto by nature they are fit in respect of procreation," &c. p 857. He also said that the impediment in Bury's Case was having the testicles "stricken off with an horse," p. 849. No complaint was ever made of the law of Bury's Case ; but the marriage was deemed voidable (not void, as this learned person erroneously stated it), on the ground of the Church, as it afterward appeared, having been deceived concern- ing the fact of the impotence. As to Bury's Case, see also ante, § 282. In Waddilove's Digest, p. 198, note, is a reference to Morris v. Morris, cor. Del. May 15, 1833, Printed Cases, vol. ix. p. 91, as "a lengthened and extraordinary case of a suit for nullity of marriage, by reason of the man's impotence superin- duced by malpractices in youth ; in which, however, the charge was held not suffi- ciently proved, and the mau dismissed, but condemned in the costs." I have not been able to obtain the volume referred to, and can therefore give no further ac- count of this case. ^ Briggs V. Morgan, 2 Hag. Con. 324, 331, 3 Phillim. 325, 1 Eng. Ec. 408; Brown v. Brown, 1 Hag. Ec. 523, 3 Eng. Ec. 229. There seems to have been some diificulty in understandiug the latter case; "That part of the reporter's note which relates to the point under discussion is : " Semble, that an impediment not natural, but supervening, is no ground of nullity." In Waddilove's Digest, p. 197, it is "Sem- ble, that an impediment supervening after marriage is not a ground of nullity." Evi- dently neither of these dissimilar state- ments approximates the idea really in- tended by the court. And see Eulmer v. Fulmer, 13 Philad. 166. 333 § 780 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. that she cannot bi'ing him heirs, so he waives this part of the ordinary contract ; but if she accepts his proposal, disclosing nothing, he has the right to assume that she undertakes for the other part.i And thus, in effect, it was at a later period adjudged in England. A man of fifty-four married a woman of forty-nine, and the court granted him a sentence of nullity for her impo- tence. Alluding to the cases just stated, and distinguishing judg- ment from dicta, Sir C. Cresswell said : " The decision did not, in either of those cases, turn upon the age of the parties, but on the merits ; nor can I find any case in which it did."^ And still, advanced years in a woman complained of are generally, on one ground or another, taken more or less into the account in her favor.^ § 779. Impotence Special — " Versus Hano." — It appears to be an accepted physiological truth that parties may be impotent as to eacli other, while both, differently mated, would be capable.^ Illustrations ai-e given in the books of medical jurisprudence ; as, where the development of the man is abnormally large, and that of the woman abnormally small. In a union of this sort the ends of matrimony are frustrate, to the injury, not simply of one party as in the ordinary case, but of both. Hence this impotence is ground for nullity.^ Some prejudice was created against this doctrine by the peculiarities of the first reported case in which it was adjudged ; namely, — • § 780. Peculiar Case — (Countess of Essex). — In 1613, the Countess of Essex obtained from James I. a commission to twelve of the bishops and doctors of the ecclesiastical law,^ to hear her complaint for her husband's impotence. She alleged in her libel, that there had been a triennial cohabitation ; that she was apta 1 Ante, § 763. years. Anonymous, 22 Eng. L. & Eq. 2 W. V. H. 2 Swab. & T. 240, 244. 637 ; s. c. nom. N r v. M e, 2 Rob. 3 Shafto V. Shafto, 1 Stew. Ch. 34; Ec. 625; s. c. nom. A. v. B. 1 Spinks, 12. W. V. H. 2 Swab. & T. 240. So also, by implication, Cresswell, J. in * Guy Forensic Med. 60. Impotence H. v. C. I Swab. & T. 605, 615. So in " may be either absolute or relative. In Ousey v. Ousey, Law Rep. 3 P. & M. 223. the first, there is a total incapacity; in * "The court of the king's high com- the second, the incapacity exists only as mission, in causes ecclesiastical, . . . was between particular parties." Dean Med. erected and united to the legal power by Jurisp. 4. virtue of the statute 1 Eliz. c. 1, instead * Dr. Lushington gave in his adherence of a larger jurisdiction which had before to the legal sufficiency of such impotence, been exercised under the pope's author- He considered that it alone is shown when- ity." It was abolished by Stat. 16 Car. 1, ever the sole evidence is of non-consum- c. 11. 3 Bl. Com. 67, 68. mation, after the cohabitation of three 334 CHAP. XXVI.] IMPOTENCE. § 781 viro, and virgo intacta; that the earl was wholly impotent and un- able to consummate the marriage, as to her ; though, both before and since the nuptials, he had '• power and ability of body to deal with other women, and to know them carnally." This form of the incapacity was termed, in this case, " impotency versus hano." The earl, in his answer, admitted the non-consummation ; said he neither could nor would consummate the marriage ; insinu- ated that the difficulty was with her ; and set forth, following what she had averred, his power with other women. The proofs established the marriage and triennial cohabitation ; while also the midwives and noble matrons, who by appointment of the court examined the lady's person, reported her to be a virgin, yet with abilities for copula and fruitfuluess. Here was the ordi- nary evidence, at least prima facie, to show common impotence in the earl ; but the peculiar allegation in the libel forbade the conclusion that it was anything more than versus hanc, and the question was, whether a divorce could be granted, assuming it to extend only as to her. The royal influence was greatly exerted in favor of the divorce ; but the commissioners were still divided in opinion. At last, five of them absented themselves, leaving the other seven, whose judgments favored it, to enter the decree. As to the facts of this case, the countess is said to have obtained leave, under the pretence of modesty, to put on a veil when about to be inspected, and to have then substituted a young woman of her own age and stature, dressed in her clothes, to stand the search in her stead ; whereby she deceived the matrons and the coirt. On the other hand, there may be room for doubt whether the allegation of "impotency versus hanc" was not a device to save the feelings and reputation of the earl ; since, though he ventured on a second marriage, he had no issue.^ § 781. Extreme Sensitiveness — in the woman, by whatever name medically called, has sometimes rendered consummation impossible ; in which case, after the lapse of proper time and trial, if found to be incurable, it is adequate in a suit for nullity .^ ' Essex !'. Essex, 2 How. St. Tr. 785 ; there was an intense sensitiveness in all and ante, § 777, note. the sexual region, so intense that any ^ The first case of this sort, known to pressure there, even external, produced a me, came before the Massachusetts Court degree of pain and suffering which she on a husband's libel for nullity. It is not was unable to endure. She was evidently in the reports. There was in the woman not aware of her condition until after the no obstruction, outwardly appearing, to marriage; and then she gave what con- the consummation of the marriage ; but sent she could to the unsuccessful em- 335 § 782 MARRIAGE CONSTITUTED, NULLITIES. [book III. § 782. Classifications of Impotence. — The books of medical jurisprudence classify impotence variously, according to the differ- ing tastes of their authors ; but the classifications are not gen- erally drawn on true legal distinctions, therefore are of little practical importance to the lawyer .^ To satisfy the needs of our braces of her husband, until, becoming convinced that the marriage could not be consummated without danger to her life, she left him. She made no resistance to his application for divorce, and acceded to whatever measures were necessary to bring the proofs before the court. The parties were respectable, and there was no doubt of the facts. The case was heard by Fletcher, J. who, after reading from his minutes the evidence to the other judges, gave, with their concurrence, sen- tence for divorce. Anonymous, Supreme Judicial Court for Suffolk, March T. 1850. I am indebted to the kindness of Judge Fletcher for a statement of the facts of this case. Next, a case wherein this one was laid before the conrt, as it appeared in tlie old " Bishop Mar. & Div." now superseded by these New Com- mentaries, occurred in England. A wife having sued her husband for cruelty, he replied alleging her impotence, and ob- tained sentence of nullity against her on the following facts. There was no mal- formation or structural defect, but she suffered from an excessive physical sen- sibility. The man's capacity was con- ceded, and he made frequent attempts, but the marriage was never consummated. "There is no doubt," said Lord Penzance, "that this man and woman have lived together and slept together for two years and ten months. That is a material fact, because many difficulties of this peculiar nature, especially those which are associ- ated with the moral feelings, pass away as time goes on. But here there has been nearly three years' cohabitation, and there- fore ample opportunity has been afforded for any merely temporary difficulty to pass away. It sometimes happens that a nervous condition has prevented consum- mation at first; but such a condition would be removed in the course of time, and the length of the cohabitation there- fore affords a strong basis for the concln- Bion at which the court ought to arrive. 336 . No one can dive into the future and say that no change may hereafter take place in the woman ; but the same remark applies even to a case of structural defor- mity. No one knows what may happen, for uuforeseen things happen daily." G. V. G. Law Rep. 2 P. (& M. 287, 290, 292. In a still later case of the like sort, Han- nen, J. granted the decree prayed; hesi- tating about the proofs, simply because the wife had not presented herself as a witness, or consented to inspection. He stated the rule of law to be, that "the im- pediment in the way of intercourse must be physical, and it must not arise from the wilful refusal of the wife to submit to her husband's embraces." Accepting as true the complainant's testimony to the facts, he continued ; " Whenever the husband endeavored to consummate the marriage, the act brought on hysteria, so that he could not effect his purpose without em- ploying such force as, but for the mar- riage, would have amounted to rape. Every feeling is arrayed against the idea of a husband having recourse to such violence." There had been more than a three years' cohabitation ; and as the mar- riage had not been consummated, and could not be practically, the prayer of the petition was granted. H. t. P. Law Rep. 3 P. & M. 126, 128. And see S. v. A. 3 P. D. 72; Merrill v. Merrill, 126 Mass. 228. 1 Dr. Beck divides the " causes of im- potence," after the manner of Foder^, into "absolute, curable, and accidental, or tem- porary ; " which is somewhat convenient for legal contemplation. 1 Beck Med. Jurisp. 10th ed. 88. Dr. Guy clas.sifies impotence in the male as, 1 . Physical ; 2. Moral or Mental. Under the first head he has a. Age; b. Malformation or de- fect of the penis ; u. Defect or disease of the testicles ; d. Constitutional disease or debility. Guy Forensic Med. 52. Impo- tence in the female he classifies as, 1. Nar- rowness of the vagina; 2. Adhesion of the CHAP. XXVI.] IMPOTENCE, § 785 profession, they should distinguish those impediments which some- what obstruct, but do not prevent, copula, from those which suffi- ciently hinder it to lay the foundation for divorce ; the curable from the incurable ; and those which are discoverable on in- spection from those ascertainable only by trial or a triennial cohabitation. § 783. New and Old Forms of Impotence. — Neither can we know, in advance, what forms this impediment may assume in the future.^ Ayliffe, who wrote a century and a half ago, says, that impotence in the man is an excess of frigidity ; in the woman, too great a straitness in her genital parts ;^ yet we now know that these are only examples of it, and that it has assumed nu- merous other forms. The reader will find help, on this question, in the treatises upon medical jurisprudence. Chancellor Wal- worth remarked, on the authority of Beck, that the instances of absolute and incurable impotence are few ; that the defect is generally palpable to the senses ; and that, of cases formerly as- signed to this class, many have given way before the modern improvements in surgery. And his conclusion is just, that courts should proceed in this class of causes with the greatest vigilance.^ IV. Remediable or Permanent. § 784. Physical, not Mental. — • It results from the foregoing ex- positions that impotence is a defect of the body, not of the mind. Hence — § 785. Refusing Connection — is, if a matrimonial offence cog- nizable by the law, desertion, or possibly in extreme cases cruelty, — to be considered in other chapters. In a capable person it is not impotence,* yet in proper circumstances it may be evidence from which impotence will be inferred.^ Now, — labia; 3. Absence of the vagina; 4. Im- the husband to occupy the wife's bed, see perforate hymen; 5. Tumors occupying Meyer v. Meyer, 49 How. Pr. 311. Her- the vagina. lb. 60. A similar classifica- maphrodite. — For a, case wherein the tion is adopted by Dean. husband alleged his wife to be a her- 1 1 Beck Med. Jurisp. 10th ed. 100. maphrodite, and incapable of submitting ^ Ayl. Parer. 227. to intercourse when sexually excited, see 3 Devanbagh v. Devanbagh, 5 Paige, Peipho v. Peipho, 88 111. 438. 554, 557, 28 Am. D. 443. See PoUard v. * S. v. A. 3 P. D. 72 ; H. v. P. Law Wyboum, 1 Hag. Ec. 725, 3 Eng. Ec. Eep. 3 P. & M. 126, 12«, 308. Disease of Wife. — As to odors '^ S. v. A. supra ; Merrill v. Merrill, from disease, rendering, it impossible for 126 Mass. 228. VOL. I. — 22 337' § 788 MAKEIAGE CONSTITtJTED, NULLITIES. [BOOK III. § 786. Curable or not. — It is laid down in the books, com- monly in terms unqualified, that the defect, to constitute the nullifying impotence, must be incurable.^ Even, it has been affirmed, if the impediment is of a nature to be removed with- out serious danger by a surgical operation, it is not a ground of nullity though the party refuses to submit thereto ; since oth- erwise one would be impotent or capable at his own election, and the marriage would be invalid or good as he might will.^ But — § 787. In Reason, — since the refusal to exercise a capacity is not impotence, the rejection of means to remove an incapacity is not capability. Beyond which, no one should be required to run the hazard of life, or to submit to a process for cure which in good faith he fears, however honestly and intelligently pre- scribed. Moreover, marriage does not give a party such a right in the other's body as to justify him in forcing upon it medi- cines or the surgeon's knife. Therefore, in principle, the doc- trine is that actual physical impotence, whether theoretically curable or not, will nullify a marriage in favor of a party who in good faith does all he lawfully can by persuasion and other suitable means to overcome or remove it, however unreasonably the impotent party exercises a legal right to decline proffered remedies. Looking now into some — § 788. Decided Cases, — they will be found to confirm this view. Thus, in an English case before Sir CresswcU Cresswell, the re- sult of the evidence was, he said, " that the obstruction [in the woman] was congenital, and that it might possibly be removed by a surgical operation; that such an operation would, in this case, the woman being forty-nine years of age, be attended with con- siderable danger to her life, and the success of it, with regard to the result to be obtained, doubtful." Thereupon he continued : " What course is to be taken ? The report of the medical inspec- tors was made known to her advisers ; she has not expressed any desire to undergo an operation, and the court can hardly assume, under the circumstances of this case, the existence of any such desire. It was said that the petitioner ought to have called upon her to do so ; no precedent for such a proceeding has been sug- 1 Ferris v. Ferris, 8 Conn. 166 ; Anony- 401. And see Norton v. Norton, 2 Aikens, mons, 35 Ala. 226, 229 ; Baacomb «. Bas- 188, comb, 5 Fost. N. H. 267 ; G. v. G. 33 Md. ^ Devanbagh v. Devanbagh, 6 Paige, 175; 1 Fras. Dom. Eel. 55, 338 CHAP. XXVI.] IMPOTENCE. § 788 gested, and I am not disposed to make one. The petitioner may with great propriety decline proposing that the respondent's life should be placed in danger ; she must judge for herself ; and there having been no prayer for delay on her part, I think it my duty to proceed with the case on the assumption that things will remain as they are." ^ In a later case, not where a surgical oper- ation was needed, but medical treatment, and the woman had taken some of the prescribed remedies but refused others, alleging danger to her health. Lord Penzance granted a divorce. " The result of my examination of " the woman, said a medical expert, " is, that in my opinion sexual intercourse is practically impossi- ble. There are means by which, in my opinion, her condition may be remedied ; but, in order that they should succeed, it is necessary that she should lend herself to them. If she were to return to cohabitation, and were to refuse to take chloroform and the other remedies prescribed, I think there could be no consum- mation." Upon this the learned judge observed : " It is unques- tionable that these two people, neither of them advanced in life, have slept together for two years and ten months, and that the marriage has never been consummated. Without speculating on the abstract causes of this state of things, or on the remedies which might possibly be applied to it, but taking the case as it stands, the court cannot help perceiving that there must be some strong cause rendering consummation impracticable. The question is, whether that cause is of such a character that it can practically be regarded as permanent. ... It cannot be necessary to show that the woman is so formed that connection is physically impos- sible, if it can be shown that it' is possible only under conditions to which the husband would not be justified in resorting. The absence of a physical structural defect cannot be sufficient to ren- der a marriage valid if it be shown that the connection is practi- cally impossible, or even if it be shown that it is only practicable after a remedy has been applied which the husband cannot enforce, and which the wife, whether wilfully or acting under the influence of hysteria, is determined not to submit to. The question is a practical one, and I cannot help asking myself what is the hus- band to do in the event of his being obliged to return to cohabi- tation in order to effect the consummation of the marriage ? Is he by mere brute force to oblige his wife to submit to connection ? 1 W. V. H. 2 Swab. & T. 240, 244, 245. 339 § 791 MARRIAGE CONSTITUTED, NULLITIES. [BOOK IH. Every one must reject such an idea." ^ In a yet later case, Sir James Hannen more curtly expressed the doctrine thus : " The difficulty might perhaps be overcome if the lady would undergo an operation, which would probably be successful. But the court cannot compel her to submit, and the man can only be expected to take all reasonable means to persuade her. This he has done, and she has distinctly refused." So he pronounced for the nullity .^ Again, — § 789. Refusing Moral Restraint. — Where the wife is the appli- cant, and the impotence of the husband proceeds from self-abuse which may be cured by his exercising moral restraint over him- self, yet not otherwise, and he will not exercise such restraint, this sort of curability, it would seem, is not deemed to take away her right to the divorce." V. The Effect on the Marriage. § 790. Voidable. — As seen in a preceding chapter,'' the impedi- ment of impotence is canonical, rendering the marriage in the fullest sense ^ voidable, not void.® Yet, even in 1868, the contrary was contended for in the English Probate Court, by parties who, on a wife's death, opposed the husband's claim to administration by alleging his impotence as making the marriage void. They were unsuccessful ; the learned judge observing " that the prac- tice of the courts, both temporal and spiritual, from all time, has been inconsistent with the attempt now made, and that it is not supported by a single authority."^ Hence, — § 791. How annul. — In the absence of any contrary provision of a statute, the only way in which this marriage can be objected to or annulled is by the sentence of a court having a competent jurisdiction over the question.® Of course, the applicant for the nullity sentence will be the party injured, — one who did not know of the impediment at the time of the marriage. But — 1 G. V. G. Law Eep. 2 P. & M. 287, Eng. Ec. 166, 168; Poynter Mar. & Div. 289-291. And see P. ... L. 3 P. D. 73, 123; Sneed v. Ewing, 5 J. J. Mar. 460, DOte. 22 Am. X). 41 ; Smith v. Morehead, 6 2 L. w. L. 7 P. D. 16, 17. .Tones Eq. 360; Cavell v. Prince, Law 3 See and compare S. v. E. 3 Swab. & Rep. 1 Ex. 246. T. 240 ; P. V. D. 4 Swab. & T. 86. ' A. o. B. Law Eep. 1 P. & M. 559, < Ante, § 267, 270, 279. 563. 6 Ante, § 255, 259, 265-267. 8 Ante, § 259, 265, 266, 271. « Elliott V. Gurr, 2 Phillim. 16, 19, 1 340 CHAP. SSVI.] IMPOTENCE. § 796 § 792. Whether Impotent Party sue. — One who, being in fact impotent yet ignorant of his condition, enters into a marriage, especially with a competent person, is injured, and not the less so because of the greater injury which he inflict* on the other. Therefore in just principle he, as well as the other, is entitled to the suit for nullity.^ For only through actual choice and knowl- edge should any person be held in this painfully embarrassing rela- tion, as uncongenial to the impotent spouse as to the otlier. But whether or not under any circumstances the law, as viewed from the standpoint of authority, will sustain a suit by the impotent party is a question upon which opinions are conflicting ; and as it will not often arise in practice, it is deemed sufficient simply to cite the authorities.^ It is pertinent to ask how, if this sort of suit is not maintainable, the marriage in a case of equal " impo- tence versus hano," ^ is to be dissolved. § 793. Statutes — in our several States have, as a general rule, wrought no wide changes in the doctrines laid down in this chap- ter. But — § 794. Void. — An exceptional provision, believed not very widely to prevail, makes the marriage void.* §795. "Divorce" — "Adultery or Impotence." — A suit for nullity is not inaptly termed also a suit for divorce. Therefore, within explanations already made,^ if a statute in terms provides for a divorce for " impotence or adultery," or employs any other similar form of words, the suit for impotence is a nullity suit, though that for the other cause or causes may be different. The impotence must exist at the time of the marriage, and the nul- lity sentence renders the marriage void from the beginning.*^ A fortiori, therefore, the like construction will be given to the more apt words, " the impotence of either party at the time of the marriage."^ ' § 796. Procedure. — Connected with the pleading, practice, and evidence, to be explained in the second volume, are some questions 1 Ante, § 763. ^ Ante, § 166. 2 Ayl. Parer. 230; Norton v. Seton, 3 ^ Bascomb v. Bascomb, 5 Fost. N. H. Phillim. 147, 1 Eng. Ec. 384 ; Miles u. 267, 273 ; Smith v. Morehead, 6 Jones Eq. Chilton, 1 Rob. Ec. 684, 699; A. w. A. 19 S60. See Brown v. Westbrook, 27 Ga. Law Kep. Ir. 403 ; HaJfen v. Boddington, 102. And see ante, § 289. 6 P. D. 13. ' G. u. G. 33 Md. 401 ; Kempf v. 8 Ante, § 779, 780. Kempf, 34 Mo. 21 1 . * Ante, § 204. « 341 § 797 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. which with nearly equal propriety might have been included in this chapter. § 797. The Doctrine of this Chapter restated. The impediment explained in this chapter is not, under the unwritten law, an absolute bar to matrimony. Doubtless a mar- riage between two men or two women would be in every respect a mere nullity. But a man or woman deficient in the sexual structure will still possess in a large degree or fully the other leading qualities of the sex. And if two such persons choose to unite in matrimony, the law permits them. But if one is so de- ficient in organism as to be unable to take the first step peculiar to matrimony, the other, if ignorant of the impediment, therefore entitled to believe none exists, may have the marriage set aside. But if there is no incapacity at the time of the marriage, or if capacity comes however long afterward, the marriage is good, though an absolute and incurable infirmity of the disqualifying sort should supervene. The ability to become a parent is never an essential element in marriage,- — not that it is intrinsically unimportant, but practically marriage may well subsist without it. And to make even a deception as to this the foundation of a suit for nullity would lead to offensive and demoralizing inquiries in the courts, with no compensatory advantages. So the question is made to turn simply on the ability for the sexual connection. And even though a party lacks this ability, his marriage is good until judicially pronounced void, in a suit for nullity during the joint lives of the two. The question of the judicial procedure in these cases is particularly important, but it is for the second volume. 342 CHAP. XXVII.] PENAL CONSEQUENCES. § 801 CHAPTER XXVII. PENAL CONSEQUENCES OP IRREGULAR MARRIAGE. § 798, 799. Introduction. 800-802. As to the Parties. 803-814. As to Third Persons. 815. Doctrine of Chapter restated. § 798. The Validity — of the marriage is not for consideratioa here ; in a previous chapter, we saw that a marriage may be good in law while yet the parties and third persons connected with it are punishable.^ § 799. "What for this Chapter and how divided. — We are in search for penal consequences, chiefly statutory ones, not in mi- nute detail, but with reference to principles controlling the in- terpretation and effect of the detailed statutes of the several States. We shall consider, I. Penal Consequences to the Parties ; II. Penal Consequences to Third Persons. I. Penal Consequences to the Parties. § 800. In General. — We have not many statutes providing pains for the parties to forbidden marriages ; except those against polygamy ,2 against marrying after being divorced as the guilty party ,^ against entering into marriage with a person of another race or color,* and the like, — already explained. But — § 801. Under Age of Consent. — In one or more of our States it has been made penal or punishable for a man to marry a girl under the age of consent,^ at least without the parental permis- sion.® And a few Other similar provisions may be found. 1 Ante, § 433, 434. 5 Ante, § 560 et seq. 2 Ante, § 712 et seq. ° Ludwick v. Stafford, 6 Jones, N. C. " Ante, § 696 et seq. 109 ; S. v. Watts, 10 Ire. 369. * Ante, § 680 et seq. 343 § 805 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 802. Principals of Second Degree. — Perhaps sometimes, where a statute makes the official person solemnizing a marriage indictable, it may be a question whether the parties are not therefore indictable as aiding and abetting him. The doctrines governing this sort of question are sufficiently stated in the author's other works.^ II. Penal Consequences to Third Persons. § 803. Consent of Parents. — Though the marriage of minors who have reached their respective ages of consent ^ is valid without the acquiescence of their parents or guardians,^ still, to provide for them such restraint from injudicious marriages as is prac- tical,* we have statutes forbidding clergymen and others to join minors in marriage without consent from parents or guardians.^ Thus, — § 804. " Consent in Person or in Writing." — Where a statute made it penal to solemnize the marriage " of any male over the age of seventeen years and under the age of twenty-one years," or " of any female over the age of fourteen years and under the age of eighteen years, without the consent in person or in writing of the parent or guardian of such male or female minor, if they have either parent or guardian living in this State," — the verbal message of a parent not present at the ceremony, consenting thereto, was held to afford no protection to the celebrator; it should have been in writing.^ § 805. No Parent or Guardian. — If the statute omits the re- striction which we observe in the one just recited, limiting its application to cases wherein the infant has " either parent or guardian living in this State," the court will introduce it by in- terpretation. So it did in Pennsylvania, where the statute had no clause of this sort, Gibson, C. J. observing : " It is evident from the nature of the subject, and from the specific provisions for it, ^ See, among other places, 1 Bishop ^ Smyth v. S. 13 Ark. 696. s. p. in Crim. Law, § 656-659, 685-689 ; Bishop New Jersey, WyckofE v. Boggs, 2 Halst. Stat. Crimes, § 135, 142, 145, 594, 662, 138. And see Bishop Stat. Crimes, § 237. 770, 771, 775, 1029; 1 Bishop Crim. Pro- Indiotment. — As to the form of the in- ced. § 332; 2 ib. § 3, 5, 6, 14, 59. dictment, see S. u. "Willis, 4 Eng. 196; S. - Ante, § 562, 568, 582. v. Ross, 26 Mo. 260; S. v. Winright, 12 3 Ante, § 551, 552, 556. Misso. 410. See also Roberts v. The State * Ante, § 566. Treasurer, 2 Root, 381 ; White v. S. 4 " Craft V. Jachetti, 18 Vroom, 205. Iowa, 449. 344 CHAP. XXVII.] PENAL CONSEQUENCES. § 808 that the statute of 1729-30 was enacted for none but the inhabit- ants of the province. It is not the proper business of a govern- ment to legislate for the domestic relations of a foreign people. The laws of a country are made for the protection of those who owe a permanent or temporary allegiance to it ; and where it interposes for the protection of strangers within the jurisdiction of its courts, it is by the courtesy of nations, and not of right ; for protection and allegiance are correlative duties." ^ And — § 806. Dead. — A Vermont statute, requiring the consent of parents, was held not to be applicable where there was no parent living.^ § 807. Having Care of ChUd. — A statute forbidding the sol- emnization of any minor's marriage without the consent of the parent or guardian, or other person having the care and govern- ment of such minor, was held to limit the function of consenting to the person in whose care the minor was ; so that where a minor has both a parent and a guardian, the latter only can act.^ And in Pennsylvania a father who has relinquished parental con- trol over his minor child cannot maintain an action against a jus- tice of the peace for marrying the minor witliout his permission ; on the otlier hand, it is no defence to his suit that by reason of moral degradation he was unfit to take care of the child.* The master of an apprentice in this State, under the Act of 1829-30, cannot have damages of a clergyman for marrying the appren- tice contrary to its provisions, unless he is bound to him by indenture.^ § 808. Bastards. — It would be within the English decisions on 26 Geo. 2, c. 33, to hold a statute of this sort in general terms, applicable as well where the child is a bastard as where he is legitimate.^ This question probably has not been adjudged in any American case ; but in reason there is no such wide distinc- ' BolUn u. Shiner, 12 Pa. 205. As * Zieber v. Roos, 2 Yeates, 321. And to North Carolina, see Caroon v, Rogers, see further, as to Pennsylvania, Mitchell 6 Jones, N. C. 240. Compare with Ex v. Cowgill, 4 Binn. 20; Minor v. Neal, 1 parte I. C. 3 Myl. & C. 471 ; Harrison v. Pa. St. 403; Buchanan v. Thorn, 1 Pa. Southampton, 4 DeG. M. & G. 137; In re St. 431. And as to Tennessee, see The Birch, 17 Beav. 358. Governor v. Rector, 10 Humph. 57. As 2 Holgate u. Cheney, Brayt. 158. to Alabama, see Gotten u. Rutledge, 33 3 Vaughn u. McQueen, 9 Misso. 330. Ala. 110. See Ely v. Gammel, 52 Ala. 584. ^ Priestly v. Hughes, 11 East, 1, 20; * Robinson v. English, 34 Pa. 324. See Rex v. Hoduett, 1 T. R. 96. Larwill v. Kirby, 14 Ohio, 1. 345 § 811 MARRIAGE CONSTITUTED, NULLITIES. [BOOK IIL tion between legitimate and illegitimate children and their parents as ought to take the illegitimate out of the protection of a statute the words of which cover both.^ § 809. Marriage License. — A statute imposed a penalty on "anj minister or justice of the peace " joining " persons in marriage without having first received a certificate of the town clerk," etc. ; and one certificate — ■ said the court, " a certificate means one cer- tificate " — from one town was held to suffice where the parties lived in different towns.'' The penalty can be incurred only by a " minister or justice of the peace," no other ofiiciating person being within the statute.^ § 810. Consent of Parents to License. — Some of the statutes subject to a penalty or indictment the officer who issues a license for the marriage of a minor without the consent of his parents.* Where it is a penalty, and it is recoverable " to the use of the father," he may sue for it in his own name.^ It is not incurred unless the marriage authorized by it transpires ; therefore, and perhaps for other reasons also, a licensing person who makes a -mistake in the minor's name in the certificate he issues, is not liable though a magistrate corrects it and then celebrates under it the marriage.^ And one may subject himself to the civil ac- tion for the statutory penalty, though the wrongful issuing of the license was by his clerk or agent, without his knowledge or specific consent.'' § 811. Mistaking Age.- — A licensing officer in issuing the license, or a minister or magistrate in celebrating the marriage, where his right to perform the act is conditioned on the party's having at- tained a specified age, will if he mistakes the age be excused or not according to the terms of the statute, the nature of the par- ticular case, and the special views of the court passing thereon. If the statute has the word " knowingly " or its equivalent, an honest mistake of the age, after due inquiry, is by all opinious 1 And see ante, § 745. ' Wood o. Farnell, 50 Ala. 546. As 2 Wood V. Adams, 35 N. H. 32, 37. to the form of allegation and the pleading, ' Bishop V. Marshall, 5 N. H. 407. As see Ely v. Gammel, 52 Ala. 584 ; Gilbert to South Carolina, see Watson v. Blay- v. Bone, 64 HI. 518; Mitchell v. Davis, lock, 2 MiU, 351. supra. It is no defence that the father * Bond. — As to the bond in some was informed of the mistake, and had States required, see S. v. Dole, 20 La. An. time to, but did not, have it corrected. 378. Wood V. Farnell, supra. As to the Ala- 5 Adams v. Cutwright, 53 HI. 361. bama statute, see Fitzsimmons v. Buckley, s Campbell v. Beck, 50 111. 171. See 59 Ala. 539. Mitchell V. Davis, 58 Ala. 615. 346 CHAP. XXVII.J PENAL CONSEQUENCES. § 812 adequate in excuse, while yet any lack of care may be shown as implying knowledge.^ In various cases, where the statute was in more general terms, the court has rejected the defendant's plea of innocent mistake, either as deeming no such plea admissible, or as considering the particular matter relied on inadequate.^ On principle, there is a distinction between actions for penalties, which are civil, and indictments. There may be circumstances in which a court would not subvert fundamental principles by holding a defendant to the penalty, though he acted with the utmost care and caution. But in no circumstances, where the statute is general in its terms, therefore open to be construed under the limitations of the unwritten law, could a court properly convict for crime one who sought to obey the law, yet in spite of due care was led into a mistake of the fact, deeming the party to be of the required age when he was not.^ Unhappily, however, a not large minority of our tribunals have stumbled on this question. § 812. Certificate for Record. — It is under our constitutions competent for legislation, and it is common, to require the per- son officiating at a marriage to make report of it by certificate to a recording officer for record ; and the omission of the duty may- be made an indictable misdemeanor.* Where such certificate was by statute directed to be filed within three months after the sol- emnization, and then the statute added tliat one convicted upon indictment of a neglect thereof shall " be fined the sum of five dollars for every month he shall continue to fail or neglect to file such certificate, from and after the expiration of the time within which he is required by this article to file the same," it was held that an indictment would not lie until a month had elapsed after the expiration of the three months ; in other words, until four months from the time of the solemnization ; ^ also, that this stat- ute does not create a distinct offence for every such subsequent 1 Bonker v. P. 37 Mich. 4. And see necessary. See, for a more ample state- Gilbert V. Bone, 64 111. 518; Bowles u. ment of reasons and authorities, an article Cochran, 93 N. C. 398 ; Williams u. by the present author in 4 Southern Law- Hodges, 101 N. C. 300. Review, N. s. 153, entitled "A Chapter of 2 S. V. Grifath, 67 Mo. 287 ; Beckham Blunderings." And see 1 Bishop Crim. w. Nacke, 56 Mo. 546; Sikes i>. S. 30 Ark. Law, § 301-312; Bishop Stat. Crimes, 496 ; Smyth v. S. 13 Ark. 696 ; S. v. Wil- § 1021, 1022, and the other sections there lis, 4 Eng. 196. See C. v. Hill, 6 Leigh, referred to. 636 ; Bishop Non-Con. Law, § 341. ■> S. v. Madden, 81 Mo. 421. 3 This question is very important, but ^ Kent v. S. 8 Blackf. 163. its further expansion here is not deemed 347 § 813 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. month.1 But there need be no allegation in terms of the lapse of the one month after the three expired.^ Nor need the issue of the authorizing license be alleged.^ § 813. Refusing to Solemnize. — Whether a minister or magis- trate is liable civilly or criminally for refusing to solemnize a particular marriage is a question not likely often to arise in this country. There are two English cases, — not, however, probably very helpful to us. The statutes of 6 & 7 Will. 4, c. 85, and 7 Will. 4 & 1 Vict. c. 22, in various provisions relating to mar- riage, employed language implying that tlie clergyman was ex- pected to marry parties when lawfully called upon. For example, the first section of the former provided, that " all the rules pre- scribed by the rubric concerning the solemnizing of marriages shall continue to be duly observed by every person in holy orders of the Church of England who shall solemnize any marriage in England ; " but the implication was perhaps more distinctly de- rivable from the entire language, considered as a whole. There- upon, in one case, a clergyman was sued by the party for refusing solemnization ; but after verdict against him, the declaration was held to be bad. And it was doubted whether or not this sort of action, however well brought, is maintainable. Patteson, J., ob- served : " I confess there appears to me a great difference between such a question at common law and since the Marriage Act ; be- cause formerly the ceremony might have been performed any- where, so that the duty could not well have been fixed on any particular clergyman."* In a subsequent case, a clergyman of the Church of England having refused to celebrate a marriage on the ground that one of the parties had not been confirmed, and did not desire to be, he was indicted ; but after conviction the in- dictment and evidence, taken together, were held to be inade- quate. The parties had merely called on the clergyman at his house, not at the chapel, at nine o'clock in the evening, and show- ing him their certificate had requested him to appoint a time for their marriage; but he told them he would marry them when they expressed a desire to be confirmed, not before. This was held to be no proper tender of themselves for marriage, or legal 1 S. «. Pool, 2 Ind. 227. And see S. v. » S. v. Wilder, 7 Blackf . 582. Cain, 6 Blackf. 422. * Davis v. Black, 1 Gale & D. 432, 440, 2 S. V. Horsey, 14 Ind. 185 ; S. c;. 1 Q. B. 900. Pierce, 14 Ind. 302. 348 CHAP, XXVII.J PENAL CONSEQUENCES. § 815 demand of marriage, and a refusal at such time and place was no crime. Moreover, the indictment should have shown, as it did not, that the man and woman were persons who might lawfully intermarry. The court declined, though asked, to express an opinion on the general question, aside from the special facts and allegations in -litigation.^ There was a doubt in these cases ■whether the question was not for the ecclesiastical rather than the temporal courts, — not possible to arise in this country .^ § 814. Conspiracies — for the perversion of marriage are, in various forms, indictable at the common law. But this sort of matter is considered by the author elsewhere.^ § 815. The Doctrine of this Chapter restated. In the absence of forbidding statutes, the courts accept as good the marriages of all competent persons who have arrived at their respective ages of consent, however violative of law was their manner of marrying. For the protection of youths and other in- discreet parties, and of parents and guardians who have the right to control the marriages of minors, the laws of England, Scotland, and all or nearly all of our States, have made penal or indictable the celebration of the nuptials in particular circumstances or in neglect of prescribed forms, while the marriage itself may still be valid. The provisions vary in their terms. Some of them are stated in this chapter, and some interpretations are given, but the first resort of the practitioner should be to the statutes of his own State. 1 Keg. V. James, 2 Den. C. C. 1, Temp. § 137, 138, 144 ; 1 Bishop Crim. Law, & M. 300, 4 Cox C. C. 217, 3 Car. & K. § 237, 238. 167, 14 Jur. 940, 19 Law J. N. s. M. C. ^ 2 Bishop Grim. Law, § 216, 218, 235; 179, 1 Eng. L. & Eq. 552. 2 Bishop Crim. Proced. § 244; Bishop 2 See, as to the principles involved Stat. Crimes, § 625 ; S. v. Stevens, 30 in this question. Bishop Written Laws, Iowa, 391; Cole v. P. 84 111.216; C. u. Waterman, 122 Mass. 43. 349 § 817 MARRIAGE CONSTITOTED, NULLITIES. [BOOK III, CHAPTER XXVm. LEGISLATIVE VALIDATIONS OF MARRIAGE. § 816. Doctrine defined. — Whatever be the power of legisla- tion, practically it never imposes marriage on parties who do not consent thereto.^ But since marriage is a status, not a contract,^ always therefore under the control of the legislature, as a private contract is not, if two capable persons have consented to it, yet some technicality of the law has prevented the status from super- vening in pursuance of their desire, it is in principle competent for legislation, and it is sometimes practised, to declare them to be, in spite of the impediment, husband and wife.^ And the confirmation may operate retrospectively, so that they shall be deemed to have been married from the time when the void cere- mony was performed, except that the already vested rights of property cannot thereby be divested.* Thus, — § 817. Unqualified Official Person. — Where a statute has made the celebration of marriage by a designated clerical or civil officer essential to its validity, and after a particular marriage it is dis- covered that the celebrator lacked the qualifications, another stat- ute may properly cure the defect by declaring the nuptials valid. Carrying out the intent of the parties, it promotes public order ;5 and the effect may be, for example, to change the settlement of a pauper. The town newly charged cannot object, since the val- idating act has only established a new rule casting on it a new obligation for the future ; but such town cannot thereby be com- pelled to pay for support furnished the pauper before the passage of the act.^ Again, — 1 Ante, § 237, 295, 636, 640. 6 Goshen v. Stonington, 4 Conn. 209, 2 Ante, § 11-37. 10 Am. D. 121. And see Goshen v. Rich- 3 Lewis V. Ames, 44 Tex. 319; An- mond, 4 Allen, 458, 460. drews v. Page, 3 Heisk. 653 ; Harrison v. " Brunswick v. Litchfield, 2 Greenl. S. 22 Md. 468, 85 Am. D. 658. 28 ; Lewiston v. North Yarmouth, 5 * Bishop Written Laws, § 85 a, 175, Greenl. 66. 177 a, 178. 350 CHAP. XXVIII.] LEGISLATfVE VALIDATIONS. § 820 § 818. Successive Void Marriages — (Construction of Statute). — Under the laws of Texas before her separation from Mexico, mar- riage was legally constituted only when solemnized by a Roman Catholic priest. But there were marriages entered into without this needful solemnization ; therefore in 1841 a Texas act legal- ized those which had already transpired, where the parties were living together in the marital relation. A man in 1830 was mar- ried in an irregular manner to a woman in Texas ; after two years the two separated, and he married another woman, in the same irregular manner, and lived with her until 1857. It was there- upon held, that the statute made tlie latter marriage good from its date, but it had no effect on the former, because the parties separated before it became legal.^ § 819. Within Prohibited Degrees. — A marriage void because contracted within the prohibited degrees may be confirmed by a subsequent legislative act. " The disability," it was observed? "was a statutory one, and is removed by statute. The legisla- ture has power to declare what shall be valid marriages. They can annul marriages already existing, a fortiori they can render valid marriages which, when they took place, were against the law. They can exercise the power of marriage, or delegate it to others. The whole subject is one of legislative regulation." ^ § 820. Constitutionality — (insanity). — The foregoing cases were in States whose written constitutions were in the ordinary form, yet the acts validating the invalid marriages were held not to be unconstitutional. So also was adjudged to be the statutory pro- vision that " the validity of a marriage shall not be questioned in the trial of a collateral issue, on account of the insanity or idiocy of either party, but only in a process duly instituted, in the life- time of both parties, for determining such validity." " We can- not," said Metcalf, J., " see any difference in, principle between this case and those in which the legislature have passed statutes declaring marriages valid, which were before invalid because the magistrate or clergyman who undertook to marry the parties had no lawful authority to marry them." ^ But this statute and its 1 Rice V. Rice, 31 Tex. 174. And see husband and wife had jointly applied to Lewis 1). Ames, 44 Tex. 319. the legislature to have the marriage con- 2 Moore v. Whittaker, 2 Barring. Del. firmed. 50; Harrison v. S. 22 Md. 468, 85 Am. D. » Mass. Gen. Stats, i;. 107, § 2 ; Goshen 658. See also Nichols v. Stewart, 15 Tex. ». Richmond, 4 Allen, 458, 460. 226. In the first cited of these cases, the 351 § 822 MARRIAGE CONSTITUTED, NULLITIES. [book III, effect were somewhat considered in a previous chapter.^ A ques- tion of this sort may be governed by special terms in the particu- lar Constitution ; as, — § 821. In Massachusetts — (After Divorce — Leave to Marry) — while the guilty party to a divorce was forbidden to marry, with power in the court to grant leave on special cause shown,^ a legis- lative confirmation of a divorced party's marriage without such leave was held to be void. Yet it was because of peculiar terms in the Constitution of the State,^ so that the same consequence would not follow in the other States. § 822. Distinguished — (Mere Contracts). — These cases should not be confounded with the common ones, not of status, where- with our books abound. It has not been practised, nor is it be- lieved to be under our constitutions competent, in ordinary cases, depending on no special facts, for the legislature to declare a mere private contract between individuals, which was void when made, valid. How far something analogous to this may be done under special circumstances we need not inquire. To some extent it may.* But the determination of a status is an entirely different 1 Ante, § 641, 642 and note. 2 Ante, § 709. 5 Chapman, C. J. explained as follows : " The Constitution provides, in part 2, t. 3, art. 5, that ' aU causes of marriage, di- Torce, and alimony, and all appeals from the judges of probate sliall be heard and determined by the governor and council, until the legislature shall by law make other provision.' Other provision was made as to some of these subjects soon after the Constitution was adopted ; and, when the special Act of 1869 [confirming the marriage in the case in controversy] was passed, all such cases, including peti- tions for leave to marry again, were, by the general statutes, within the jurisdic- tion of this court, and this court alone could give him authority to marry again. No jurisdiction in cases of marriage, any more than in cases of divorce, alimony, or appeals from the judges of probate, had been conferred by any law upon the legislature, nor did the Constitution give them any power to hear and decide each particular case. They had exercised their power to take away the jurisdiction of the governor and council and confer it upon another tribunal ; and until the general 352 law by which they had done this should be altered or repealed, their power in such a case as the present was exhausted, as much as in a case of divorce, alimony, or probate appeal." White v. White, 105 Mass. 325, 327, 7 Am. K. 526. In denial of this interpretation, it might be said that the jurisdiction originally in the governor and council and afterward trans- ferred to the courts, was the judicial ju- risdiction, not the legislative, which still remains in the legislature. Indeed, this has always been the practical construction of the provision in Massachusetts ; for after the power of divorce was given to the courts, the legislative body still con- tinned to legislate on the same subject, as often as it chose, and the courts have never before challenged the right. True, the acts have ordinarily been general ones, — but is the authority different when the statute is special'. And is it not a legislative function, not a judicial, to confirm a marriage in the circum- stances under consideration 1 Practically, in analogous cases, it has often been done by legislatures, never by a judicial tri- bunal. * Kneass's Appeal, 31 Pa. 87; BlcCarty CHAP. XXYIII.] LEGISLATIVE VALIDATIONS. § 824 thing. And however this is done, whether by the legislature, by the parties, or both, the law's results must follow. § 823. A mere Change of Laws, — making valid a particular sort of marriage which before was void, — as, permitting the inter- marriage of white persons and Indians theretofore forbidden, — does not operate to confirm prior void marriages.^ § 824. The Doctrine of this Chapter restated. The rules which govern the legislative confirmation of void acts vary in some measure with the subject. And they are not altogether the same for marriage as for a mere pecuniary contract. Marriage being a status and in its nature semi-public, the legisla- tive power over it is nearly, perhaps absolutely, omnipotent. So that if for any cause the nuptials are found to be void, they may be made good by a special statute. But this doctrine extends only to the status. If by reason of the nuptials being null, rights of property have vested in anybody, the statute cannot divest them. In other respects it can render the void mari-iage valid from the beginning. V. Hoffman, 23 Pa. 507; Menges v. Wert- Kearney v. Taylor, 15 How. TJ. S. 494; man, 1 Pa. St. 218; S. v. Siclder, 9 Ind. Andrews v. Russell, 7 Blackf. 474; May- 67; Wright v. Rogers, 9 Gill & J. 181; ers v. Byrne, 19 Ark. 308; Simmons v. Suydam v. Bank of New Brunswick, 2 Hanover, 23 Pick. 188; Comstock v. Gay, Green. Ch. 114; Dorsey ... Gilbert, 11 51 Conn. 45; Smith w. Hard, 59 Vt. 13. GiU & J. 87; Society v. Wheeler, 2 Gallis. l Illinois Land, &c. Co. u. Bonner, 75 104, 139; Hughes i-. Cannon, 2 Humph. 111. 315. 589; Wilkinson v. Leland, 2 Pet. 627; VOL. I. — 23 353 § 828 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. CHAPTER XXTX. FLICT OP MARRIAGE LAWS. § 825, 826. Introduction. 827-832. Blendings of Domestic and Foreign Laws. 8.33-840. Marriage International, and Consequences. 841-88.5. Good where Celebrated, good everywhere. 886-906. Invalid where Celebrated, invalid everywhere. 907-919. Collaterals of Marriage distinguished from Status. 920. Doctrine of Chapter restated. § 825. Important — Difficult. — The Subject of this chapter is one of the most important pertaining to these Tolumes. Its dif- ficulties are considerable ; and its doctrines, while in the main reasonably harmonious, are at one or two places in " conflict." Hence we shall travel over the ground carefully, and with an occasional repetition of a step, so as if possible to make all plain. § 826. How Chapter divided. — We shall consider, I. The Blendings of Domestic and Foreign Laws ; II. The International Character of Marriage, and its Consequences ; III. The Doc- trine that Marriage valid where Celebrated is valid everywhere ; IV. The Doctrine that Marriage invalid where Celebrated is in- valid everywhere ; V. The Collaterals of Marriage distinguished from the Status as to Conflicting Laws. I. The Blendings of Domestic and Foreign Laws. § 827. Why ? — We shall be better prepared to apprehend the special teachings of this chapter, if in this sub-title we call to mind a few simple and almost axiomatic propositions. Thus, — § 828. Laws primarily Local. — The ordinary laws of a country are made for good order, and for the proper administration of 354 CHAP. XXIX.J MARRIAGE ENTERED INTO ABROAD. § 832 justice, on its own soil and within its ships on the high seas. Especially it is not their function to interfere with the affairs of States occupying other territory. Therefore it is a maxim that they have no extra-territorial force. ^ But — § 829. Interminglings of People — Consequent Effect of Foreign Laws. — Since people are constantly passing from one country or State to another, some for temporary purposes and others in per- manent change of residence, it is impossible for the courts of any country utterly to ignore the laws of other countries. The for- eign laws are never permitted any force of their own in the do- mestic forum, — that is, binding the tribunal as commands from the foreign sovereign, — but in many circumstances they operate as domestic law for the particular case in litigation, not because ordained by the foreign sovereign, but because the domestic sovereign is presumed so to require for the establishment of domestic justice.^ For example, — § 830. Property from Abroad. — If two persons come into one of our States bringing with them something which the laws of the State regard as personal property, and each claims the entire ownership of it adversely to the other, domestic justice requires that the courts of the State shall settle their controversy. But in the nature of the case, there is no way of doing this except by referring the question to the law of the country whence the par- ties came with the property. And thus the foreign law becomes the domestic for the particular matter in litigation.^ On the other hand, — • § 831. Slave. — If one of these persons claims the other to be his slave, slavery being unknown in the State, the domestic tri- bunal will not suffer him to support his demand by a reliance on the foreign law of slavery.* And the reason is that in this case, unlike the other, the rule of the foreign law is so repugnant to the domestic as to render the presumption of its recognition being authorized by the domestic sovereign utterly inadmissible. Now, — § 832. Resulting Rule. — From these and kindred views we de- rive the rule that in no instance will a foreign law be permitted 1 Bishop Written Laws, § 141 ; 1 Bishop ^ Simpson v. Fogo, 1 Hemm. & M. 195, Crim Law, § 109, 110. 9 Jur. n. s. 403. 2 Caldwell r. Vanvlissengen, 9 Hare, * Ante, § 669. 415, 425, 16 Jur. 115. 355 § 834 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. to have any force as command from the foreign sovereign ; but the domestic tribunal will concede to parties litigant the rights which they have acquired under foreign laws, the same as under the domestic ones, unless a domestic statute forbids, or unless the foreign are so far and in such sense odious, or adverse to the do- mestic, as to render the acknowledgment of the right claimed subversive of the domestic order. II. The International Character of Marriage, and its Consequences. § 833. International. — Marriage is not a mere institution of our own or of any other one country, but it prevails in all coun- tries, even in those which we deem not civilized ; and in all it is esteemed to be the leading and cliief element of society. So that what we call our marriage laws are merely in recognition of a universal law which antedates them, and in regulation of the in- cidents of marriage, so far as local to the State in which they arise. Therefore within a principle just stated,^ our State mar- riage laws are limited in tiieir effect by the State lines, and are not applicable to transactions in the locality of any other State or country. But the fundamentals of marriage are as well extra- territorial as territorial ; they are all of one universal law ; they prevail everywhere, are the law of every particular nation, and of all people wherever dwelling. Hence, in the highest sense, the institution of marriage is international, and the law of marriage, except such mere incidentals as in their special nature are local, is international law, — not public international law, which is enforced by war, but private, which the tribunals of every country take cognizance of and give effect to as their own law. § 834. Local Regulations — (Conflict of Laws). — While thus the institution of marriage is universal, and the law of marriage in its general sense is identical in all Christian countries, there is no one supreme legislative or judicial power to determine what local regulations of marriage are competent for each particular State, or to settle questions of conflicting rights Under them. But the courts of any State in which a question of this sort arises, if not restrained by the legislative command of their own State, de- cide the question as they deem a general tribunal having jurisdic- tion over all countries would do if it existed. A question of this 1 Ante, § 828. 356 CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. § 835 sort pertains to what is termed the conflict of laws, — a subject which, as to the inception of the marriage status, is for the pres- ent chapter, leaving the conflict of divorce laws for its proper place in the second volume. We shall begin with some — - § 835. Preliminary Propositions. — There are a few propositions so important to this discussion that they should be in our minds throughout. They are all so nearly axiomatic that no reference to authorities sustaining them is required ; yet for the con- venience of the reader the author will refer to places in which he has elsewhere considered a part of them, or considered the foundation doctrines on which they rest, and there some citations of authorities will appear. 1. As a question of the internal government of a country, it is competent for the legislature, unless restrained by a written con- stitution, and then it would be competent for the makers of the constitution, to command the judicial tribunals to violate estab- lished principles of law, and even the law of nations ; for however wrong this may be, there is no jurisdiction to forbid.' 2. In the absence of words e.xpress and conclusive, admitting of no other interpretation, a court will not presume the legislature intended to do a thing of this sort ; so that a statute in general terms, yet susceptible of a reasonable application without being carried so far, will be restricted by construction to a narrower sense, consistent with the law of nations.^ 3. Every independent nation is supreme in its own territory; and it can bind all persons and things therein, while they there remain, whether their occupancy is of a nature temporary or permanent.^ 4. Every government has a sort of power over its subjects abroad ; but this power ought not, according to the law of nations, to be exercised ill a way interfering with any otlier government's right of control over all persons and things within its territory, whether there temporarily or permanently.* 5. Out of these propositions grows another; namely, that the statutes of a country and its common law will be holden, prima facie, not to bind subjects who may be lawfully, though tempo- rarily, within the dominions of other powers.^ 1 1 Bishop Crim. Law, § 56, 61, 62; '1 Crim Law, ut sup. § 124, 130, 134. Bishop Stat. Crimes, § 989 et seq. and * lb. § 109, 117, 121, 136. places there referred to. ^ lb. § 115, 121 ; Written Laws, nt 2 1 Crira. Law, ut sup. § 115 and note, sup. § 141. And see ante, § 828. 121, 124; Bishop Written Laws, § 82, 90. 357 § 837 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. 6. Right-minded governments will be mutually friendly, yet each will consider that the keeping of its interests is in its own hands. Consequently, if one government desires to control the action of its subjects within the territorial limits of another, it will not proceed therein under any claim of right ; and the lat- ter will grant the permission or not, as it judges that the one course or the other will be prejudicial or otherwise to its own interests. 7. Except in cases of embassadors, and the like, where a par- ticular respect is shown to the person of a foreign sovereign or his deputy,! ^q government will allow within its dominions the existence of any state of society foreign to the condition and order of things laid down for its own citizens.^ § 836. Contrast of Marriage and Divorce — (Other Proposi- tions). — In the application of the foregoing propositions, mar- riage and divorce — the one deemed in the law beneficial and the other harmful ^ — are in steep contrast. Hence we should take into the account two other propositions, equally axiomatic with the foregoing ; namely, — 1. Marriage is a thing of right, recognized in all countries, in all ages, among all people, all religions, all philosophies. Hence it is a part of the law of nations, as just explained.* And hence each particular instance of what is meant for marriage has tlie aid of all the presumptions both of law and fact,^ and equally whether the marriage was domestic or foreign. On the other hand, — 2. Divorce is approved in some countries, in some ages, among some people, and by some classes of opinion, but disallowed in other countries and times, and by other persons and opinions.® Therefore divorce is a local institution, peculiar to the laws of some localities ; but it is not of universal right or interna- tional law. From these two propositions let us here draw a corollary ; namely, — The two things, marriage and divorce, must in some respects be governed by different rules. Now, — § 837. Rule in Brief for Divorce. — Not taking into the account 1 1 Crim. Law, ut sup. § 126, 130-132. ■• Ante, § 833. 2 lb. § 124. And see ante, § 827-832. ' Ante, § 77. 8 Ante, § 38, 39, 76. « Ante, § 39, 41-45, 57-59. 358 CHAP. XXIX.J MAKRIAGE ENTERED INTO ABROAD. § 841 some differences of opinion, the rule for divorce is, in brief, that the courts of the actual domicil of a married party, proceeding upon a ground for divorce made sufficient by the laws of their own State or country, are competent to declare such party free from the matrimonial bond, as to himself, whether the other party is in the same jurisdiction or not, yet the courts of no other State or country are thus competent. If the parties are in different jurisdictions, and the court having authority over the one releases him from the vinculum of the marriage, the other will indeed be released also ; yet the reason will be, not that it had any control over him, or over his status as married or single, but because the law of his own domicil does not recognize a man as a husband who has no longer a wife, or a woman as a wife who has no longer a husband.! But, — § 838. Rule in Brief for Marriage. — Marriage being a universal right, and there being one law of marriage governing all nations alike, subject only to mere local and not extra-territorial regula- tions of the State wherein it is celebrated,^ if, at any place where parties may be, whether transiently or permanently, they enter into what by the law of the place is a marriage, they will be holden everywhere else throughout Christendom to be husband and wife. In like manner, if the transaction is not regarded where it occurs as marriage, it will not be deemed such in any other country ; and it is not otherwise though the same things done at the place of the domicil of the parties would have the opposite effect. The rule thus stated has its real and seeming exceptions, to be ex- plained as we proceed. Hence, — § 839. Lex Loci — Lex Domicilii. — More curtly expressed, mar- riage is, as to its constitution, governed by the lex loci contractus ; as to its dissolution by divorce, by the lex domicilii? § 840. Explained. — This doctrine, as to marriage, will be ex- plained, with its limitations and qualifications, in the next two sub-titles. As to divorce, the elucidations will appear in the sec- ond volume. III. The Doctrine that Marriage valid where Celebrated is valid everywhere. § 841. How divided. — We shall consider, First, The General Doctrine ; Secondly, The Exception of Marriages odious by the 1 Ante, § 698-702 ; post, § 839, 848. « Ante, § 833, 834. » Post, § 848. 359 § 844 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. Common Consent of Nations ; Thirdly, Marriages odious Locally ; Fourthly, Marriages forbidden by a Statute of the Particular State ; Fifthly, Marriages in " Evasion " of the Law of the Parties' Domi- cil ; Sixthly, Legislative Extensions of the Marriage Laws over Citizens abroad. § 842. As to which. — The division of the subject into these several heads is, like all other divisions in law-writings, simply for convenience and order in the elucidations. In the cases, when a judge has made up his mind on which side the decision should be, he delivers an opinion embracing all the considerations deemed conducive to the result, so that his judgment may — commonly does — appear as a deduction from more than one of these heads. § 843. First. The General Doctrine : — Defined. — By the international law of marriage, which ought to govern the courts in the absence of any statute of their own for- bidding, a marriage valid by the law of the country in which it is celebrated,! though the parties are but transient persons, though it would be invalid entered into under the same formalities in the place of their domicil, and even though contracted in express evasion of their own law, is good everywhere. And this doc- trine is specifically established in the tribunals of the common- law countries.'^ § 844. Doubts, Exceptions, Qualifications. — This doctrine, in its broad extent, has indeed been questioned, not only by Continental jurists,'^ but by very dble English judges! And its scope in gen- eral law, as appearing in the earlier Englisli authorities, has been attempted to be abridged by the suggestion that Scotland and places beyond the seas are excepted from Lord Hardwicke's Eng- ^ Ante, § 833-835. rule was held to apply to marriages con- 2 Story Confl. Laws, § 79-81 ; Comp- tracted in an Indian nation ; Patterson v. ton V. Bearcroft, Bui. N. P. 114, cited 2 Gaines, 6 How. U. S. 550; Phillips v. Hag. Con. 430, 443, 4 Eng. Ec. 578, 585; Gregg, 10 Watts, 158, 36 Am. D. 158; Scrimshire v. Scrimshire. 2 Hag. Con. 395, Fornshill v. Murray, 1 Bland, 479 ; Du 4 Eng. Ec. 562 ; Herbert v. Herbert, 2 maresly v. Fishly, 3 A. K. Mar. 368 ; Hag. Con. 271, 4 Eng. Ec. 534, 3 Phillim. Perg. Consist. Law, 20, 28, 29; 1 Burge 58, 1 Eng. Ec. 363 ; Sutton v. Warren, 10 Col. & For. Laws, 184, 187 ; 2 Roper Hus. Met. 451 ; C. o. Hunt, 4 Cush. 49; Harri- & Wife, by Jacob, 496; Lord Brougham, son I.'. S. 22 Md. 468, 85 Am. D. 658; in Warrender d. Warrender, 9 Bligh, N. sj. Pearson c. Pearson, 51 Cal. 120; C. v. 89,111; Munro y. Saunders, 6 Bligh, n. s. Kenney, 120 Mass. 387 ; Swift v. Kelly, 468, 473, 474 ; S. !'. Patterson, 2 Ire. 346, 3 Knapp, 257 ; Lacon v. Higgins, 3 Starlc. 38 Am. D. 699 ; Kynnaird v. Leslie, Law 178; Morgan v. McGhee, 5 Humph. 13, Rep. 1 C. P. 389; Van Voorhis v. Thiers, and Wall v. Williamson, 8 Ala 48, also 86 N. Y. 18. Boyer v. Direly, 58 Mo. 510, where the ' 2 Kent Com. 91. 360 CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. § 846 lish Marriage Act ; ^ by force of which exception, the suggestion runs, marriages in Scotland and bej^ond the seas, good by the law where made, were good in England while this act was in operation.^ Still, whatever the doubts, tlie doctrine in its broad terms and without great qualifications is established in England and our States.^ Yet some differences remain, especially as to parties incapacitated under the law of their domicil to inter- marry,* — to be explained as we proceed. §845. Why? — Looking at the law of marriage as interna- tional, it becomes the duty of every tribunal expounding it to proceed as though it were a court of the collective nations, pre- siding over the marriages of the civilized world.^ And as the ju- diciary of a particular State, administering the general law of the State, will not hold a transaction valid in one county and void in another, so such court of the collective nations would not interpret the international law of marriage in a way to render a part of the marriages valid in one country and void in another. And there was never suggested any rule which would work a uniformity of result except this of the lex loci contractus. Explaining this, — § 846. Kentucky — (Locally forbidden Consanguinity}. — Where a Kentucky statute prohibited intermarriages within a degree of consanguinity too remote to conflict with the law of nations,® and a pair of Kentucky people, whom it rendered incompetent, went into Tennessee and there intermarried, no like provision for- bidding in Tennessee, the Kentucky Court held it to be good in Kentucky ; observing, by Marshall, C. J. : " As the prohibitory law of Kentuclcy would have had no force in Tennessee, the mar- riage in the latter State must there have created the lawful rela- tion or status of marriage, by which the parties were in law and in fact lawful husband and lawful wife to each other in the State of Tennessee, so soon as the marriage was performed, and con- 1 26 Geo. 2, 0. 33. This statute, after Brook v. Brook, 3 Sraale & G. 481 ; s. o. making certain regulations, the non-com- on appeal, 9 H. L. Cas. 193. pliance with most of which renders the ^ Harford v. Morris, 2 Hag. Con. 423, marriage void, adds, in § 18, "That noth- 430, 4 Eng. Ec. 575, 578; 1 Burge Col. & ing in this act contained shall extend to For. Laws, 192. that part of Great Britain called Scot- ^ See the cases cited in the note to the land, nor to any marriages . . . solem- last section, and particularly Compton v. nized heyond the seas." The present Eng- Bearcroft ; Story Confl. Laws, § 123 n. lish Marriage Act differs from this in the * 1 Burge Col. & For. Law.s, 188, 199. respect now under consideration. See ^ Ante, § 833, 834. « Post, § 857, 858, 861. 361 § 847 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. tinued to be, so long as they remained, and would have been so if at any time before an actual divorce they had returned to that State. And so if immediately after the marriage they had gone through the other States, and even to Europe, intending all the time to return to Kentucky, they would have been lawful husband and wife in every place, at least in every country where the com- mon law prevails ; because it is a part of that law that, being lawful husband and wife at the place of marriage, they continue to be so wherever they may be." Therefore, since mati'imony was a part of the law of nations, this individual marriage could not be otherwise than good in Kentuclcy.i A contrary decision, render- ing it void in Kentucky while valid in all the rest of the world, would have taken Kentucky marriages out of the law of nations, and made them a mere domestic institution, peculiar to the one State. Again, — § 847. England — (Consent of Parents — Foreign Sentence of Nullity). — The like doctrine was shortly afterward maintained in England where, however, this Kentucky opinion was prob- ably unknown. A marriage had been celebrated in England be- tween French parties who went there for the purpose, in evasion of the law of their domicil which required them, whether the nuptials were at home or abroad, to procure the consent of par- ents, and made the marriage in either case without it void. When they had become thus matrimonially united in England, under the forms of English law, they returned to France ; and there, by a French tribunal, this mari'iage was pronounced null. And since, at the time of sentence rendered, the parties were domi- ciled in France, the English Court ought, had the American doc- trine prevailed in it, to have held this sentence of nullity to be a conclusive dissolution of the marriage.^ This, however, was not suggested to the tribunal, nor does the point appear to have occurred to any one.^ But the full Court for the hearing of Divorce and Matrimonial Causes, treating the case as it would have done if there had been no sentence of nullity in France, and having jurisdiction by reason that the lady had become domiciled in England, and that this was a marriage celebrated in England 1 Stevenson v. Gray, 17 B. Monr. 193, is the same whether the sentence is of 210. And see Dannelli u. Dannelli, 4 nullity, pronouncing an originally invalid Bush, 51 ; post, § 870. marriage void, or of the dissolution of a 2 This is explained in the second vol- marriage originally good, nme, where also it is shown that the rule ^ Ante, § 662, 664. 362 CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. § 848 (the latter being a fact deemed important there, but it would not be so in the United States), held the marriage to be, in Eng- land, valid. Said Cresswell, J. : " Every nation has a right [this is what Prance had done by her laws] to impose on its own sub- jects restrictions and prohibitions as to entering into marriage contracts, either within or without its own territories ; and if its subjects sustain hardships in consequence of those restrictions, their own nation only must bear the blame. But what right has one independent naticJn to call upon any other nation equally independent to surrender its own laws in order to give effect to such restrictions and prohibitions ? . . . The great importance of having some one certain rule applicable to all cases ; the diffi- culty, not to say impossibility, of having any rule applicable to all cases save that the law of the country where a marriage is solemnized shall in that country at least decide whether it is valid, or invalid ; the absence of any judicial decision or dictum, or of even any opposite opinion of any writer of authority on the law of nations, — have led us to the conclusion that we ought not to found our judgment in this case on any other rule than the law of England as prevailing amongst English subjects." ^ This case does not, indeed, cover all the ground, and decide what would have been the mutual relation of the parties if, after being mar- ried in England, they had gone to Spain instead of returning to France ; but no one can doubt that upon general principles of jurisprudence they would have been held in Spain to be married persons. Still, as to the — §848. Lex Domicilii — (Compared with Divorce). — Recurring to the facts of the two cases stated in tlie last two sections, it may be asked whether in principle the question might not have been referred to the law of the parties' domicil, which is the rule for divorce,^ instead of that of the marriage ; so that in the English case the marriage should have been adjudged void because it was so in France, and void in the Kentucky case because the Ten- nessee Court ought to have so held. Now, comparing marriage with divorce, there is no difficulty in applying the rule of the domicil to divorce, because it is a judicial proceeding, and the 1 Simonia v. Mallac, 2 Swab. & T. 67, v. De Barros), 5 P. D. 94 ; and see the 83, 85. Compare this case with Sotto- discussions of the question in subsequent mayor v. De Barros, in its various stages, parts of this chapter. in 2 P. D. 81, 3 P. D. 1 (nom. Sottomayer ^ Ante, § 837, 839. 363 § 849 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. court will dot pronounce the sentence until the domicil is proved. But marriages, in all countries, just as uniformly occur in pais as divorces do in court. So that to require parties to establish their domicil, or judicially show where it is, before intermarrying, would be to refuse them marriage. Beyond which, is there any reason for casting the duty on every government, before allowing a marriage to take place within its territorial limits, to compel an inquiry as to whether the parties are there domiciled, and if they are found not to be, to forbid the banns, or postpone them till a commission has been sent abroad to take testimony, and it is thereby ascertained that the law of their domicil permits them to marry, and to marry in the particular way proposed ? And if, in any instance, the government finds it has been deceived, and the two married persons did, in fact, at the time of the marriage entertain a secret purpose to return to their former residence, thereby proving that they were not domiciled where they were married, must then the government hold the marriage void, and proceed against them criminally for fornication ? There is be- lieved to be no country whose laws provide for tliis sort of inquiry in advance of marriage. Then, if parties do marry, without insti- tuting an inquiry for which the laws make no provision, and the marriage is valid by the general law under which it was cele- brated, is the court to take up the case at this stage, and, finding the parties not to have been domiciled, and finding that their marriage would not be good had it been celebrated in their own country, pronounce it, therefore, to be, contrary to what is writ- ten in its own statutes, void ? No American court has ever yet permitted any classes of foreigners, except sovereigns and their diplomatic agents and attendants,^ to be thus exempt from sub- jection to our laws on Amei'ican soil, — all holding our laws to be there supreme.''^ And any contrary ruling of any tribunal would be a tender of itself, of its sovereign, and of his people in serfdom to the sovereign of every other nation. But — § 849. Anomalous English Case. — There is an English case which, if it is hereafter to be followed, transports foreign law to British soil, compels the courts to inquire into the matrimonial law of every other country, and ejects from the tribunals in a class of cases every day occurring the commands of Parliament, and substitutes for them the shifting laws of foreign countries, in re- 1 1 Bishop Crim. Law, § 124 et seq. ^ Ante, § 828, 832, 835 (3, 7). 364 CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. § 849 spect of transactions on British soil. It is believed that no civil- ized country ever before witnessed the like. The facts resemble those in the case of the French parties above stated.^ In that case such parties had intermarried in England, without the con- sent of their parents, — the marriage being by the French law void, yet good by the English law. And because it transpired on Eng- lish soil, the English Court refused to annul it. In the case we are now considering, Portuguese parties, residing in England, but assumed not to be there domiciled, being cousins who were per- mitted by the express words of an act of Parliament to inter- marry ,2 yet by the law of Portugal forbidden except on leave from the Pope, intermarried in England, in full compliance with the English law, yet without having first obtained permission from his Holiness. Thereupon the Court of Appeal, reversing the decision of the Probate Division,^ held the marriage to be, in Eng- land, invalid for the want of the papal authorization, because such was the law of Portugal. And this case having' occurred subse- quently to that of the French parties, and differing from it sim- ply in the non-consent to the nuptials having been the Pope's instead of the father's, was nevertheless by the tribunal distin- guished therefrom on the ground that the father's blessing was a part of the marriage ceremony which need only conform to the law of the place, but the impediment of cousinship and its re- moval by the Pope were fundamentals pertaining to the law of the domicil.* The case, upon this, going back to the Probate Di- vision for a hearing on the facts. Sir James Hannen found that at the time of the marriage the man's domicil was in England and the woman's in Portugal. Whereupon, taking advantage of another distinction which the Court of Appeal had introduced, he held that the foreign law did not affect the domiciled party, there- fore his marriage was good, so dismissed the case. At the same time, by his observations he inflicted on the decision of the court above him blows as damaging as could be made consistent with his nominally inferior position.^ A peculiarity of which last dis- tinction, whatever we may deem of the other, is, that for it there 1 Ante, § 847. able to perceive, why is greater value to 2 Ante, § 263, 737, 747. be attached by the tribunals of this coun- 3 Sottomayor v. De Barros, 2 P. D. try to the permission of the Pope than to 81. that of a father?" Sir James Hannen, « Sottomayor v. De Barros, 3 P. D. I. 5 P. D. 94, 106. " If there be a distinction, which I am un- ^ Sottomayer v. De Barros, 5 P. D. 94. 365 § 850 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. is «iot SO much as a shadow of legal reason. If the Portuguese law of marriage was admitted into the case, as the Court of Ap- peal held it must be, it took away the woman's capacity. And the law of England, which all held to be the test for the domiciled man, rendered it impossible for him, though competent, to con- tract valid marriage with an incompetent woman. ^ It is not for the author to say how this case should hereafter be regarded in England ; but as appearing in the judgment of the Court of Ap- peal, it is flatly contradicted by American authorities,^ and one cannot well see how it can be given effect in any other common- law country. Further as to the doctrine itself, — § 850. Transactions in Own Country. — Not only in our matri- monial law, but likewise in every other part of our municipal and international jurisprudence, the broad doctrine is established, with the one only exception of foreign sovereigns and their diplo- matic representatives and armed vessels, and their invading troops in war, that the courts of a country will adjudge and regulate the transactions of foreigners in it by their own and not by the for- eign laws.'* For example, if one foreigner cuts off another for- eigner's head on our soil, it will be no answer for him to say that the two are French subjects, and he has received authority from the French government to guillotine the other. Or if in one of our prohibition States a man is caught in the illicit sale of liquor, he cannot defend himself by showing that he is domiciled in an adjoining State, by the laws whereof liquor-selling is permitted. And the same rule applies to any ordinary contract. It would be an unheard-of defence to a suit on any contract (leaving out of view the anomalous marriage case just stated*) to allege that the parties were domiciled in another country when they entered into it, if in fact they made it in the country of the court in full com- pliance with its laws. This doctrine is not only fundamental, and not only established by universal usage, but it is also axiomatic. A government of a country, subject to having its laws superseded by foreign ones every time a foreigner set foot upon its soil, would be a contradiction ; it would be a government, not of the country, but only of a part of the people in it, — in chains as to the other part. Now, — 1 Ante, § 295, 326, 575, 578, 588, 698- 3 Ante, § 832, 835 (3, 7) ; 1 Bishop 702. Crim. Law, § 124-135; Bishop Cod. § 1377; " For example, ante, § 847. And others Campbell v. Hall, Cowp. 204, 208. will appear as we proceed. * Ante, § 849. 366 CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. § 853 § 851. Conclusive. — This doctrine is conclusive of our present question. It being impossible that a marriage celebrated on our soil should be adjudged by foreign laws, the same rule must apply to every other country. The courts of every country must hold all marriages celebrated on its soil to be good or ill according as their own laws make them the one or the other. Therefore there is in the nature of things no way in which marriage can be an inter- national institution, so that whatever parties are held to be mar- ried in one country will be held the same in every other,i except by referring the question to the law of the place in which the celebration transpired. This view does not involve, like the other, a submission by one country to the laws of other countries ; it is simply that, when parties enter it from abroad, they may bring with them whatever they had acquired abroad, — the foreign law being looked into only to ascertain whether or not the thing claimed constitutes such acquisition.^ Further as to which, — § 852. Other Reasons — (Marriages abroad). — Assuming it to be settled that, without exception, the courts of a country wherein a marriage takes place will judge of it by their own laws, we are furtlier to consider why they will look to the foreign laws when it was solemnized abroad. It is believed by the author that the true reasons of the law, whicli may, or may not, be the ones assigned by a particular judge,^ are those already given. They adhere in the law itself, and it is immaterial whether or not any judge has stated them in the same way before. Still they are not inconsistent with judicial utterances leading to the same result. Thus, — § 853. Courtesy — Comity — Justice. — Referring the doctrine to the general one that the validity of a contract is to be deter- mined by the law of the locality in which it is made,^ " some writers," observes Dr. Radcliff, " say that such rule rests on the courtesy of nations ; but Lord Brougham ^ says, it may be laid down with more appearance of truth that it is ex debito Justitice, the parties agreeing to have the contract formed, and its valid- 1 Ante, § 833. Commissary Ross observed of the rule 2 Ante, § 829-832. that the lex loci contractus governs in re- 8 Ante, § 130, 842. spect to the validity of contracts : " This * Ferg. Consist Law, 28, 29 ; Poynter is merely a proceeding in execution of the Mar. & Div. 278. will of the parties, and not in the least a 5 In Warrender v. Warrender, 2 CI. & recognition of the authority of a foreign F. 488, 529, 530. In a Scotch case, Mr. law." Ferg. 360, 3 Eng. Ec. 480. 367 § 855 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. ity determined, according to that law.' And that this is the true principle, I must refer to the cases cited,^ and principally to Scrimshire v. Scrimshire, and Sir Edward Simpson's luminous judgment in that case, and to Ilderton v. Ilderton,^ and to Hube- rus. That rule is eminently calculated to prevent uncertainty and confusion, and is generally established among the Christian nations of Europe, in order to avoid the ill consequences that would ensue if countries did not observe the laws of each other in questions of marriage."* § 854. Further as to which. — In some Massachusetts cases, Par- ker, C. J., said that comity would not be offended by the courts of the parties' domicil declaring null a contract made in another State in violation of their own laws ;^ so that the principle in marriage is not necessarily applicable to contracts of a different nature, — '■ usurious, gaming, or others, — unlawful by domestic statutes or by the common law. Comity does not require a government to protect its subjects in evading its laws, by incurring abroad obli- gations whicli they could not at home. But the rule, he consid- ered, rests, both in England and in this country, on the extreme danger of vacating a marriage valid where it is solemnized, — thus bastardizing innocent children, and committing an outrage on the public morals.® Moreover, — § 855. In what Sense Foreign Law in Force here. — In full ac- cord with the principles above laid down,' the courts have always deemed that the ground for trying a foreign marriage by the for- eign law is not that such law has, propria vigore, any force in the domestic forum. A marriage, claimed to exist or not in a par- 1 Lord Brougham's argument, thus re- * Steele v. Braddell, Milward, I, 20. ferred to, seems to be that, the essence of ^ It has been denied that comity is the marriage being consent, it exists wherever true principle on which generally a con- the consent does. But consent is proved tract, made in one country, is enforced in only when expressed in the forms recog- another according to the laws of the for- nized by the law of the place where given, mer; although the doctrine is usually ex- Warrender v. Warrender, 2 CI. & F. 488, pressed in this way. Lord Brougham in 530, 531. Warrender v. "Warrender, 2 CI. & F. 488, 2 Dalrymple v. Dalrymple, 2 Hag. 9 Bligh, 89 ; Story Confl. Laws, § 226 c, Con. 54, 4 Eng. Ec. 485 ; Ending v. note. Smith, 2 Hag. Con. 371,4 Eng. Ec. 551 ; « Pntnara v. Putnam, 8 Pick. 433; Middleton v. Janverin, 2 Hag. Con. 437, Medway y.Needham, 16 Mass. 157, 8 Am. 4Eng.Ec.582; Harford y. Morris, 2 Hag. D. 131. See also 2 Kent Com. 92 ; Poyn- Con. 423, 4 Eng. Ec. 575 ; Scrimshire v. ter Mar, & Div. 287 ; Story Confl. Laws, Scrimshire, 2 Hag. Con. 395, 4 Eng. Ec. § 124. 562. ' Ante, § 851, and places there cited. 3 Ilderton v. Ilderton, 2 H. Bl. 145. 368 CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. § 856 ticular country in whose tribunals it is drawn in question, must be judged of by the law there prevailing ; and if it was celebrated abroad, wliether between persons domiciled at the place of cele- bration, or between subjects of the government under which it is being tried, it is still within the rule requiring every court to determine all questions before it by its own law. In the words of Lord Stowell in the Dalrymple case, the question of the par- ties' man-iage, " being entertained in an English court, must be adjudicated according to the principles of English law applicable to such a case. But," he continued, " the only principle applicable to such a case, by the law of England, is that the validity of Miss Gordon's marriage rights must be tried by reference to the law of the country where, if they exist at all, they had their origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judgment of the law of Scotland." ^ § 856. The Result — is that, for the peace of the world, for the prosperity of its respective communities, for the well-being of families, for virtue in social life, for good morals, for religion, for everything held dear by the race of man in common, it is necessary there should be one universal rule whereby to deter- mine whether parties are to be regarded as married or not ; and that the only practicable rule is to refer this question to the law of the country wherein they exchange the mutual consent to be husband and wife ; which consent alone is, by the law of nature, a perfect marriage. If, in such country, they are deemed to be married, the tribunals of every other must hold them to be so likewise, or no end can be predicted to the confusion which will ensue. And as a general pi'oposition, " all nations have," in the language of Sir Edward Simpson, " consented, or must be pre- sumed to consent, for the common benefit and advantage, that marriages should be good or not, according to the laws of the country where they are made. By observing this law, no incon- venience can arise." ^ Seeking next for the real and proposed limits of this doctrine, — 1 Dalrymple !>., Dalrymple, 2 Hag. Con. L. & Eq. 570, 574; and of Sir E. Simp- 54, 58, 4 Eng. Ec. 485, 487 ; Holroyd, J. son in Scrimshire r. Scrimshire, 2 Hag. in Birtwhistle v. Vardill, 5 B. & C. 438, Con. 395, 4 Eng. Ec. 562. And see 454. And see the observations of Sir Caldwell v. Vanvlissengen, 9 Hare, 415, Herbert Jenner Fust in Connelly v. Con- 425. nelly, 2 Rob. Ec. 201, 248 et seq., 2 Eng. 2 Scrimshire v, Scrimshire, 2 Hag. Con. VOL. I. — 24 369 § 860, MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. § 857. Secondly. The Exception of Marriages odious hy the Common Consent of Nations : — Doctrine defined. — Should there be, as occasionally it may hap- pen, a country or State permitting marriages which by the com- mon voice of civilized nations are vicious past toleration, such marriages, though solemnized under the protection of its laws, would not be within the protection of the law of nations because lacking the general favor essential.^ Therefore they would be re- jected by the tribunals of every other country in which they were not by its local laws approved.^ § 858. "What Cases. — To bring a case within this exception, something more must appear than that the marriage is contrary to tlie general law of the State in which the question arises.^ It must be contrary also to the common voice of Christendom. The familiar illustrations, perhaps the only ones of which a writer can speak with absolute assurance,, are polygamous marriages and those of excessively near consanguinity.* Yet — § 859. Insanity. — It has also been intimated, and such is the deduction of reason, that if in the foreign country a marriage be- tween persons without the capacity of mind to enter into it should be deemed valid,^ it would still be rejected by the domestic tribu- nals. For, said Gilchrist, C. J., " throughout the civilized world, the consensus animorum, the willing mind, is required as an essen- tial attribute of this contract."® § 860. Polygamous. — We saw, in an earlier chapter,'^ that a polygamous marriage will be rejected in every monogamous coun- try, however good at home.^ Unfortunately our conflicting divorce laws and their interpretations, though practically not very inhar- monious in their workings, and becoming more and more in uni- son every year, afford occasionally an illustration of this, where the courts of one State accept a divorce sentence as good, and those of another reject it ; so that if a party to it marries in tlie former State, the marriage is there valid, but void in the latter State.^ 395, 417, 4Eng. Ec. 562, 572; audsee the § 276; Dannelli v. Dannelli, 4 Bush, entire opinion of this able judge. 51. 1 Ante, § 833. <> Ante, § 633-644. 2 Greenwood v. Curtis, 6 Mass. 353, « True v. Ranney, 1 Post. N. H. 52, 53 379, 4 Am. D. 145; Sneed i. Ewing, 5 Am. D. 164. J. J. Mar. 460, 489, 22 Am. D. 41 ; Sutton ' Ante, § 305, 309, 310. jj. Warren, 10 Met. 451. 8 Ante, § 290; In re Bethell, 38 Ch. 3 Sutton V. Warren, 10 Met. 451. D. 220, 234. * Story Confl. Laws, § 113o; ante, ' Conway v. Beazley, 3 Hag. Ec. 639, 370 CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. § 862 § 861. Incestuous. — By the law of nature, incest pertains only to consanguinity. Yet most Christian States, by their domestic laws, carry the like prohibitions to a greater or less extent into affinity.! Qur books, in words, commonly join the two when speaking of this international impediment, yet they also mention it as of natural law, for which and other reasons we may doubt whether affinity is justly to be included. An incestuous mar- riage, within the meaning of our exception, is generally stated to be, not every one forbidden on account of consanguinity or affinity by the legislative enactments of the country in which its validity is drawn in question ; for a State may prohibit, from motives of policy or from religious considerations, matrimonial connectiojis between persons related in blood or affinity, not incestuous by natural law. " By the law of nature," says Chancellor Kent, " I understand those fit and just rules of conduct which the Creator has prescribed to man as a dependent and social being ; and which are to be ascertained from the deductions of right reason, though they may be more precisely known and more explicitly declared by Divine Revelation." ^ More particularly, — § 862. The Rule. — While there are some differences of opinion, it is universally agreed that the prohibition includes all marriages between persons in the lineal ascending and descending degrees of blood relationship, and between brothers and sisters in the col- lateral line, whether of the whole or the half blood.^ Yet what- 5 Eng. Ec. 242. The reporter's head-note 9 Bligh, 89, 112, 2 CI. & E. 488, 532. An to this case sets it in a somewhat different Alabama case intimates that perhaps light. It is, that " the lex loci contractus, polygamous marriages contracted in a as to marriage, will not prevail where country allowing polygamy would in a either of the parties is under a legal in- Christian country be deemed good on capacity by the law of the domicil." But collateral proceedings. " A parallel case," such a proposition would be unsound in adds the court, " to :i Turkish or other mar- law ; and by the case itself, simply a Scotch riage in an infidel country, will probably divorce of English parties domiciled in be found among all our savage tribes ; England both at the times of their mar- but can it be possible that the children riage and of their divorce, was adjudged must be illegitimate, if born of the second void; and, as a consequence, so also was or other succeeding wife 7 " Wall ti. Wil- a second marriage in Scotland of one of liamson, 8 Ala. 48, 51. See ante, § 306- them ; though probably the Scotch courts 310. would have held the divorce valid, and the ^ Ante, § 732, 733, 741-744, 752. marriage therefore good. See, in affirm- ^ "VVightman v. Wightman, 4 Johns. Ch. ance of this view, In re Wilson's Trusts, 343. Law Rep. 1 Eq. 247, 257, 258. See further 3 Story Confl. Laws, § 114; 2 Kent on this question, Story Confl. Laws, §114; Com. 83 ; 1 Burge Col. & Eor. Laws, 188. Burge Col. & For. Laws, 188; Lord And see Butler «. Ga-strill, Gilb. Ch. 156; Brougham, in Warrender v. Warrender, Harrison v. Burwell, Vaugh. 206, 226. 371 § 864 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. ever be the scruples as to connections between relatives further removed than brother and sister in the collateral line of consan- guinity, the better opinion does not hold them incestuous by natural law.^ In our further unfoldings will be cited some cases which might be urged into an argument for extending the col- lateral line further ; but whether well or ill considered, they are believed to proceed on other reasons, or on prejudices which have no place in the law of nations.^ § 863. Thirdly. Marriages odious Locally : — Doctrine defined — (Precedence of Laws). — It is the first duty of a court to give effect to the laws and obey the commands of the government under which it sits. And though the laws in- clude as well the common law and the law of nations as the stat- utes and written constitutions, yet their due precedence must be observed. After the written constitution, a statute stands next in authority, and it must be obeyed even when thereby a law of nations is violated.^ A popular custom may grow to be law, pro- vided it is not contrary to any already existing law, written or unwritten ; but it never can acquire this status in antagonism to such law.* The consequence of which is that while the decisions of a court must conform to the legislative commands, however violative of the international law of marriage, they never can rightfully run counter to it in conformity to a prejudice, a re- ligious belief, or any popular opinion, which lias not found ex- pression in the written laws. So that however odious a marriage may be in the particular State, if it is good by the international law the court will not be justified in pronouncing it void imless so declared by a statute. But — § 864. Local Influences. — The writer of a practical law-book promises his readers to tell them how things are in fact, not lim- iting his expositions to how they ought to be. For the practitioner 1 Sutton V. Warren, 10 Met. 451 ; tween persons in the direct lineal line of Wightman v. Wightman, 4 Johns. Ch. consanguinity, or in the collateral line 343; Stevenson o. Gray, 17 B. Monr. within the degree of brother and sister, 193. both which classes of marriage are by the 2 For example, Brooli v. Brook, 9 H. usage and practice of Christian States, L. Cas. 193, might be deemed one of these and the general current of Christian law cases. In Sottomayor v. De Barros, 2 P. D. and authority, considered as incestuous, 81, 86, Sir R. Phillimore, with this case unnatural, and destructive of civilized before him, said: "This marriage cannot life." And see post, § 872. 878. be pronounced invalid because it is incest- ^ Ante, § 835 (1) ; Bishop Written uous according to the general law of Laws, § 12-14. Christendom ; it is not a marriage be- * Bishop Con. § 445, 453. 372 CHAP. XXIX.J MARRIAGE ENTERED INTO ABROAD. § 865 cares less to know how the court should, than how it will, decide his case. And the simple truth is, that local and even individual beliefs and prejudices will sometimes prevail over the true law. Not many judges will go so far as the one mentioned in a pre- ceding chapter,! ^j^q refused to parties the relief which he ad- mitted a statute entitled them to, on the ground that it was contrary to the law of God, which he must obey in preference to the law of man. But many a judge, finding the popular opinion in full accord with his private views, will feel justified in per- mitting it to override the law. Thus, — § 865. Blacks and Whites. — While in every part of our country amalgamations of the black and white races, when effected with- out marriage, are looked upon with, at least, no greater disfavor than other adulteries and fornications, and from illicit connections nearly all the admixtures of these races proceed,^ there is no State in which an intermarriage between persons of these races has the full popular approbation, and in some of the States it is a great offence against the public taste. But as to intermarriage, it is otherwise in most other countries. And since, to render a marriage internationally void it must be odious to all Christen- dom,^ the matrimonial unions between blacks and whites are good by the international marriage law. It was so adjudged in Massa- chusetts at a time when a statute of the State made a domestic marriage of this sort void. A couple, one of whom was black and the other white, to evade the statute, went into Rhode Island, in which State such connections were allowed, and there married and immediately returned ; whereupon the marriage, being good in Rhode Island, was held to be good in Massachusetts.^ But in Louisiana, where an intenser prejudice or popular sentiment pre- vailed than in Massachusetts, yet there was no statute in denial of the international rule, the court refused to uphold a marriage entered into in France between a free white person and a person of color, the judge who delivered the opinion observing : " What- ever validity might be attached in France to the singular marriage contract and subsequent unnatural alliance there celebrated be- tween the plaintiff and the deceased testatrix, it is plain that under the facts in evidence the courts of Louisiana cannot give 1 Ante, § 93. * Med way u. Needham, 16 Mass. 157, 2 Ante, § 683, 695. 8 Am. D. 131. » Ante, § 857-862. 373 § 867 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. effect to ■ these acts ■without sanctioning an evasion of the laws, and setting at naught the deliberate policy of the State." ^ The courts both of North Carolina ^ and Virginia ^ have since followed tliis doctrine in cases where, when the marriage was celebrated abroad, the two parties were domiciled in the State in which it was afterward called in question. But the North Carolina tribu- nal accepted the marriage in a case where both parties had their domicil in the foreign State wherein and when the solemnization took place.* Here are divergent decisions, graded by the differ- ing degrees of intensity in the common prejudice, — lowest in Massachusetts, highest in Louisiana, and North Carolina and Vir- ginia occupying, as they do geographically, a position between.^ It is an illustrative practical fact in our jurisprudence, and proba- bly in tliat of every other country. § 866. Fourthly. Marriages forhidden hy a Statute of the Par- ticular State : — statute not Extra-territorial. — Within principles already ex- plained, no statute, whether relating to marriage or anything else, if in the ordinary general form of words, will be given any effect outside of the local jurisdiction of the government enacting it. To bind even citizens abroad, it must either specifically in terms, or by necessary interpretation, include them.^ The consequence of which is that, — § 867. The Rule. — If a statute of our own State, silent as to marriages abroad, prohibits classes of persons to marry generally, or to intermarry, or declares void all marriages not celebrated in compliance with prescribed forms, it has no effect upon marriages even of our own citizens entered into out of the State ; those mar- riages are to be judged of by our courts precisely as though the statute did not exist. If they are valid by the international law of marriage, and by the local law where celebrated, they are so also by our own law, — the statute having nothing to do with the question. For the international law of marriage is a part of the 1 Dupre V. Boulard, 10 La. An. 411, * S. u. Ross, 76 N. C. 242, 22 Am. K. opinion by Spofford, J. See Succession 678. of Caballero, 24 La. An. 573 ; Carmena 5 And see observations of Sir James V. Blane_v, 16 La. An. 245; Blasini v. Hannen in Sottomayer v. De Barros,' 5 Blasini, 30 La. An. 1388. P. D. 94, 104. 2 S. V. Kennedy, 76 N. C. 251, 22 Am. 6 Ante, § 828, 835 (5) ; Bishop Writ- R. 683. ten Laws, § 141. 3 Kinney v. C. 30 Grat. 858, 32 Am. R. 690. 374 CHAP. XXIX.] MARBIAGE ENTERED INTO ABROAD. § 869 unwritten law of our State, and a written law not interpreted to be extra-territorial does not change the unwritten as to extra- territorial marriages. Thus, — § 868. Blacks and Whites, — forbidden to intermarry by a stat- ute of their own State, are, as above seen, according to just in- terpretation, not within the prohibition while intermarrying in another State, however transient may be their presence there.^ And — § 869. Prohibitions following Divorce. — The prohibitions of mar- riage after divorce^ are of the same sort; they are not extra-terri- torial, but are limited in their effects to the State creating them.^ This was denied in a case or two wherein the reasons and au- thorities were not before the court ; as, in North Carolina, where the judge did not duly take into the account the effect of the divorce,* but observed that ^^pro hac vice, the first marriage is still subsisting." 5 To illustrate the true doctrine, a statute in Massachusetts disqualified the guilty party after a divorce to con- tract a second marriage : thereupon a man for whose adultery a decree of dissolution had been rendered, and a woman, both domi- ciled in Massachusetts, went into Connecticut for the purpose of evading the prohibiting statute, and were there married, imme- diately returning, and their marriage was held in Massachusetts to be good.® The same, in like cases, has been adjudged in New York.'^ And the New York Court further held the marriage of domiciled New York parties in New Jersey to be in these cir- cumstances valid, though by a New Jersey statute all marriages " when either of the parties had another wife or husband living," or a ^'former husband or wife living," were declared void, — the true construction of these terms, considered with reference to the entire provision, rendering it inapplicable to a divorced person.^ 1 Ante, § 865. « Putnam v. Putnam, 8 Pick. 433 ; 2 Ante, § 703-710. West Cambridge u. Lexington, 1 Pick. ' Dickson v, Dickson, 1 Yerg. 110, 24 506, 11 Am. D. 231. And see C. i;. Lane, Am. D. 444 ; Fuller v. Fuller, 40 Ala. 301 ; 113 Mass. 458, 18 Am. R. 509. Eeed v. Hudson, 13 Ala. 570 ; C. v. Lane, ' Van Voorhis v. Brintnall, 86 N. Y. 113 Mass. 458, 18 Am. R. 509 ; Ponsford 18, 40 Am. R. 505; Kerrison v. Kerrison, 0. Johnson, 2 Blatch. 51 ; Roberts v. Og- 8 Abb. N. Cas. 444, 60 How. Pr. 51 ; Thorp densburgh, &c. Rid. 34 Hun, 324 ; Wilson u. Thorp, 90 N. Y. 602, 43 Am. R. 189. V. Holt, 83 Ala. 528, 3 Am. St. 768. ' Moore v. Hegeman, 92 N. Y. 521, 525, * Ante, § 698-702. 44 Am. R. 408. Compare with P. o. Faber, 5 Williams v. Gates, 5 Ire. 535. And 92 N. Y. 146, 44 Am. R. 357. see Marshall v. Marshall, 4 Thomp. & C. 449 ; Van Storch v. Griffin, 71 Pa. 240. 375 § 871 MAREIAGE CONSTITUTED, NULLITIES. [BOOK III. It was also decided that though the New York decree of disso- lution, equally with the statute, forbade the defendant to remarry, he committed no contempt of the court by doing it in another State ; for neither the decree nor the statute " had any effect outside the jurisdiction of this State." ^ Again, — § 870. Nephew and Uncle's Widow. — In Kentucky, by the law whereof a nephew and his uncle's widow were incompetent to intermarry,^ such a couple, domiciled there, went into Ten- nessee where no such inhibition prevailed, and intermarried, then returned ; and it was held by the court of their domicil that they thus became lawful husband and wife.^ So, — § 871. Nephew and Aunt. — As we saw in a preceding chap- ter,* where in England a man married his mother's sister, while such marriages were there merely voidable, not void, and the par- ties removed to Massachusetts, where they are absolutely void by statute, the marriage was held in Massachusetts, on a collateral proceeding, to be good ; that is, no more, at least, than voidable, the same as in England, where it was celebrated. And still the parties would have been subject, in England, to be pursued crimi- nally (as well as civilly) in the Spiritual Court, and by its sen- tence punished for the cohabitation as being incestuous.^ The distinction is, that in declaring it incestuous the court would have followed, not the law of nature, which is the test of incest by the international marriage law,^ but the law of England. The stat- ute 32 Hen. 8, c. 38, — governing, not the international marriage, but the local English marriage,'^ — had provided that all persons might marry, who, being " without the Levitical degrees," were " not prohibited by God's law ; " ^ yet no one would look to those degrees, more than to the Mosaic direction concerning the eating of flesh, as establishing a law of nature.^ Lord Brougham, how- ' Thorp V. Thorp, 90 N. Y. 602, 606, was said of incest among collaterals : 43 Am. R. 189. "This is not, strictly speaking, contrary - Ante, § 738-744. to the law of nature ; for then mankind ' Stevenson v. Gray, 17 B. Monr. 193. could not have been propagated from one And see ante, § 846. common stock, without a breach of the * Ante, § 275, 276 ; Sutton u. Warren, law of nature. Besides that, this very 10 Met. 451. usage of marrying sisters was practised 5 Burgess v. Burgess, 1 Hag. Con. 384, by the patriarchs and good men of old, 393. without any note of blame, as Jacob mar- * Ante, § 861, 862. ried Rachel and Leah; nay, there is one 7 Ante, § 866, 867. case wherein 't is expressly commanded, * Ante, § 263, 737. and that is, where the elder brother dies " In a very leading English case, it without issue, that the younger brother 376 CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. § 872 ever, speaking of a marriage between an uncle and his niece, once observed : " I strongly incline to think that our courts would re- fuse to sanction, and would avoid by sentence, a marriage between those relatives contracted in the Peninsula, under dispensation ; although, beyond all doubt, such a marriage would there be valid by th-e lex loci contractus, and incapable of being set aside by any proceeding in that country." i Whatever weight be given to this mere dictum of an eminent judge, he only speaks of avoiding the marriage by sentence, not intimating its invalidity without, — a question which did not arise, and was not discussed, in the Massachusetts case. Therefore the Massachusetts decision is not in conflict even with this dictum. And — § 872. Further as to which. — In the extraordinary and self- contradictory English case of Brook v. Brook, about to be stated, wherein, while under consideration in the House of Lords, this Massachusetts one was bitterly denounced by the Lord Chancel- lor, and silently disapproved by the other judges, this same em- inent personage laid down the doctrine upou which, in spite of his denunciation, it securely rests. He was considering the effect of an Englishman's marrying his deceased wife's sister ^ in Den- mark, by the law of which country the marriage was good. He said : " Sir P. Kelly argued that we could not hold tliis marriage to be invalid without being prepared to nullify the marriages of Danish subjects who contracted such a marriage in Denmark while domiciled in their native country, if they should come to reside in England. But on the principles which I have laid down, such marriages, if examined, would be held valid in all English courts, as they are according to the law of the country in which the parties were domiciled when the marriages were celebrated." ^ The marriage which the Massachusetts Court would not disturb on a collateral proceeding was celebrated in England while the parties were domiciled there ; it would have been void in Massa- chusetts if there entered into, just as the supposed Danish mar- must marry tlie deceased brother's wife, law of God, which is likewise established to raise up seed unto his brother; the upon very strong reasons." Butler v. meaning of which is, that the children Gastrin, Gilb. Oh. 156, 157. begotten by such second marriage were i Warrender u. "Warrender, 9 Bligh, to bear the brother's name, and take his n. s. 89, 112; s. c. 2 CI. & F. 488, 531. inheritance. But though incest among 2 Ante, § 747, 752. collaterals is not contrary to the law of ' Brook v. Brook, 9 H. L. Cas. 193, 7 nature, yet 't is contrary to the positive Jur. n. s. 422, 425. 377 § 875 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. riage would have been in England ; and the Massachusetts Court dealt with it precisely as any English tribunal would have done, and in no degree otherwise. The parallel is perfect, and the iden- tity palpable at every point. Still, — § 873. Domicil — (Meaning of Statute). — Contrary to what we have seen to be the true law,i there are legal persons who deem that the validity of a marriage is determinable by the law of the domicil of the parties at the time of its celebration, — a proposition which in one aspect has in it a grain of truth, and, when properly understood, is in most cases harmless. It is competent for every government to regulate the marriages of persons domiciled within its jurisdiction, whether celebrated at home or abroad, as we shall see a little further on. But a judicial tribunal is to administer the laws, not make them. And we have seen that a statute does not govern citizens abroad, in the absence of words specially in- dicating such effect ; so that the English and our own ordinary marriage acts have no relation to marriages abroad.^ Thus, — § 874. Polygamy. — If an English statute makes punishable one who, being married, contracts another marriage, a man dom- iciled in England does not violate it by doing the forbidden thing in France.^ Or, as expressed by Hale, if " A takes B to husband in England, and after takes C to husband in Ireland, she is not indictable in England ; because the offence was committed out of this kingdom."* And this exposition of a particular marriage act, proceeding on a principle fundamental in the common law and in all law, settles in authority the question for the rest. So that — § 875. Incestuous Marriages. — For example, the English stat- ute of 5 & 6 Will. 4, c. 54, § 2, declares that " all marriages which shall liereafter be celebrated between persons within the prohib- ited degrees of consanguinity or affinity shall be absolutely imll and void ; " yet it does in no way affect the marriage of any Eng- lishman in any foreign country, in any possible circumstances. If the statute had added, " and the parties shall severally be im- prisoned a year," no ingenuity of counsel, court, or jury could bring them within the penalty without overturning an entire de- 1 Ante, § 838, 839, 843, 845-851, and ' Anonymous, J. Kel. 79 ; Johnson .;. other places. C. 86 Ky. 122, 9 Am. St. 269. 2 Ante, § 866, 867. * 1 Hale P. C. 692 ; Bishop Stat. Crimes, § 586. 378 CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. § 877 partmeut of the English law. And no device of interpretation can distinguish this supposed clause from the actual nullity one. Such is the settled law, which no judicial tribunal is competent to overthrow. Now, — § 876. Deceased Wife's Sister. — Upon this state of the law came the famous case of Brook v. Brook, already alluded to.^ An English widower and his deceased wife's sister, living in Denmark without losing their English domicil, intermarried in Denmark where they continued to reside, and where the marriage was valid, though it would have been void in England by force of the before- recited statute of Will. 4, had it been there celebrated. Was it valid or void in England ? Whatever might be the true an- swer to this question, we have just seen that by the English law, settled by adjudication beyond the power of judicial reversal, the statute of Will. 4 had nothing to do with it ; for it related only to marriages celebrated within the territorial jurisdiction of England. Yet the case was elaborately considered in the Court of the Vice- Chancellor and afterward in the House of Lords on the assump- tion that somehow, directly or indirectly, it was governed by this statute of Will. 4 and the other English marriage acts. So the marriage was pronounced void.^ And the fact that the court was overturning what was fundamental in English jurisprudence, and reversing judicial decisions which had stood unquestioned for ages, and making a new jurisprudence, seems not to have occurred to any one. Whether this oblivion of the memory was owing to the horror felt in contemplating this unholy matrimonial alliance,^ or was a mere " common accident " to the judicial machinery, the result is the same ; the vital thing " not thought of " renders the decision valueless in authority.* Still a little further looking into the case is desirable. Thus, — § 877. Governed by Law of Domicil — (" Best Minds "). — It was assumed that this question was governed by the law of the domicil of the parties at the time of the marriage.* And for this a sole reason, deemed by some the most conclusive of all argu- mentation within the realm of the law, was assigned ; namely, that it is the opinion of the " best minds," ^ — the arguer, of 1 Ante, § 872. * Ante, § 664, 674. 2 Brook V. Brook, 3 Smale & G. 481, 6 Ante, § 873. 9 H. L. Cas. 193. 6 Bishop Non-Con. Law, § 1346. a Ante, § 752, 863-865. 379 § 878 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. course, determiniiig by his mere assertion who are the "best minds." ^ The words of the Lord Chancollor are : " While the forms of entering into the contract of marriage are to be regulated by the lex loci contractus, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial resi- dence is contemplated. Although the forms of celebrating the foreign marriage may be different from those required by the law of the country of domicil,'the marriage would be good everywhere. But if the contract of marriage is such in essentials as to be con- trary to the law of the country of domicil, and it is declared void by that law, it is to be regarded as void in the country of domicil, though not contrary to the law of the country in which it was celebrated. This qualification upon the rule that ' a marriage valid where celebrated is good everywhere,' is to be found in the writings of all eminent jurists who have discussed the subject." ^ But — § 878. Misapplied. — Even this wrong rule, had it been rightly applied, would have lead to what reason indicates as the correct conclusion. "What was the law of the English domicil as to marriages celebrated in Denmark ? We have seen that it was not the English marriage acts ; for, by the established interpre- 1 "Best Mind" Argument for Codi- method of overcoming an adversary was fication. — With those who are seeking to first taught in this case of Brook y. Broolc, abolish our coramou law of reason and or whether the device has an earlier date, put in its place the naked legislative com- its common use in the argument in this mand tlarough the process termed codifi- case and in the codification argument cation, this " best mind " argument has may be deemed a fit forerunner of what for a considerable time past, both in Eng- our law will be when, if ever, reason is land and in the United States, become the crushed out from it by iron statutes. It great one resorted to as conclusive when- is not quite restful to observe that this ever the controversy has seemed to be substitute for reason is apparently on the running adversely, or there was time only increase ; too suggestive of the possibility for a single " knock-down " blow. There that from our law may be obliterated what, was never anything else, within the do- under the name of reason, God has given main of discussion, so smooth and unob- to man for his guide through the turmoil strncted in its workings. The assertion and dangers of life. For the siren of that certain persons are " best minds," Codification sings sweetly of how, if we and certain others are of the inferior herd, will have a great statute and call it a is quickly and easily made, and, on the code, we can repose upon it and let the other side, those who stand for reason, reasoning brain rest, — of how we can be and protest against substituting mere great lawyers and great judges, dealing command for it, know too well what is out immense justice, without learning and reason to take issue on anything of that without thinking, sort put forth as argument. Whether this " Page 423 of the Jurist Report. 880 CHAP. XXIX.J MAEEIAGE ENTERED INTO ABROAD. 878 tations of the English tribunals, they were not applicable to any ■ transaction in a foreign country. ^ And it was conceded, and on no form of legal argumentation ever suggested could it be other- wise, that either the law of Denmark or those marriage acts fur- nished the rule. Therefore, since those marriage acts were out of the question, resort could be had only to the law of Denmark ; so that of necessity it was the law of the English domicil for marriages had in Denmark. But the learned English judges laid great stress upon the term " God's law " in tlie old statutes, — as though it had something to do with a case not covered or con- templated by those statutes. They admitted that if a wicked Dane had married his deceased wife's sister at home, then brought her to England and there cohabited with her, the mar- riage would in England be good, " God's law " to the contrary notwithstanding.^ The result was that a foreigner could come into England and remain there, violating God's law to his heart's content, but an Englishman was excluded from the high privi- lege, — a sort of discrimination in favor of foreigners never before known.^ 1 Ante, § 874, 875. 2 Ante, § 872. ' Further of Brook v. Brook. — It is of the highest importance that this case of Brook V. Brook be sufficiently understood in this country to avoid any accident of its being followed by our courts. Hence this note. 1. As each State of our sisterhood de- cides for herself what law shall regulate the capacity of parties to intermarry within her border?, and as marriages are being constantly celebrated without re- gard to State lines, if, whenever it appears that a marriage which State A would not approve was celebrated in State B, while the parties were domiciled in State A, the marriage is to be held null in A and bind- ing in B, there is no knowing what arrests and trials for criminal cohabitations, of parties passing from State to State in our great country composed of many States, or what shiftings of bedding partners, will delight the eyes of strumpets and of rakes. But it is to a confusion of this sort that the case of Brook v. Brook, if suffered to lead us, will conduct our country, — a confusion not to be endured where mar- riage, good order, or Christian decency is respected. 2. Possibly we may understand this case as depending on the construction of some peculiar English statutes, rather than upon principles of general jurispru- dence ; if so, it does not much concern us. There are, in the opinions, some expres- sions not altogether contrary to this view. Yet if we look into the case independently of these expressions, we shall be per- suaded, rather, that their Lordships came to the conclusion they did in spite of the statutes of England, not in consequence of them. The question was one of succes- sion to property in England ; and it arose after both the parties to the marriage, which was celebrated abroad, had died abroad ; it being understood, however, that their domicil was all the while in England. Their Lordships deemed that some of the statutes of Henry VIII., ante- rior to 32 Hen. 8, c. 38, should be construed in connection with this one, even supposing them to be entirely repealed, as they are generally understood to be (on which question of repeal, see also Wing v. Tay- lor, 2 Swab. & T. 278) ; the effect where- 381 §879 MARRIAGE CONSTITUTED, NULLITIES. [book III. § 879. Why ? — This so extensive discussion of the present topic, and particularly of Brook v. Brook and the principles in- of, their Lordships considered, was to in- corporate into the law of England the principle which holds the marriage of a man with the sister of his deceased wife to be a violation of " God's law." There- fore — so the argument ran — an English judicial trihunal was bound to hold such a marriage to be violative, not only of the English law, but also of the law of God ; and no judge would be authorized to tol- erate, in any way, a violation of the law of God, where it was likewise a violation of the law of England. The case would consequently come within a principle analogous to the one which holds foreign marriages to be void when contrary to the law of nature. Within this principle, had the man married abroad his own sis- ter, instead of the sister of his deceased wife, the marriage would, according to all authority, have been void in England. Ante, § 862. 3. But the difficulty attending this view, according to which the question was one of mere English local law, not in any way connected with international juris- prudence, therefore of no consequence in the United States, is that, though the point did not occur to their Lordships, or if it did occur, was deemed to be unde- serving of mention, ever after the statute of 32 Hen. 8, c. 38, was passed, down to the passing, in 1835, of 5 & 6 Will. 4, c. 54, a period of 295 years, the courts of Eng- land — all the courts, low and high — had been winking at this violation of God's law and the law of the land, by holding just such a marriage as this to be good when celebrated in England, and when the question came up, as in this case it did, after the death of the parties, or one of them. In other words, until 1835, the marriage of a man with the sister of his deceased wife, celebrated in England, was voidable, and not void ; and had this very marriage taken place in England, as it did abroad, at a date anterior to 1835, the English courts, even at the date when this case was decided, would have adjudged this particular case, and they did adjudge all others of the like sort, the other way. This proposition was entirely plain, undis- 382 puted, and known to all persons familiar with the English law. It is difficult to write soberly about this case, wherein the high court of last resort, composed of the most eminent judges, honored equally at home and abroad, pronounced a decision in apparent oblivion of the course which justice had taken for ages in their own courts, ignoring alike acts of Parliament and judicial decisions. Though it is plain that this fact ought to take from the case the weight it otherwise would have with us, it still becomes necessary we should look into it further. 4. How, then, stood the question upon 5 & 6 Will. 4, c. .54? This statute is: " Whereas marriages between persons within the prohibited degrees are voidable only by sentence of the Ecclesiastical Court pronounced during the lifetime of both the parties thereto, and it is unreasonable that the state and condition of the chil- dren of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period, and it is fitting that all marriages which may hereafter be celebrated between per- sons within the prohibited degrees of con- sanguinity or affinity should be ipso facto void, and not merely voidable ; Be it there- fore enacted, &c., That all marriages which shall have been celebrated before the pass- ing of this act between persons being within the prohibited degrees of affinity shall not hereafter be annulled for that cause by any sentence of the Ecclesiastical Court, unless pronounced in a suit which shall be depending at the time of the p"ass- ing of this act: Provided, that nothing hereinbefore enacted shall affect marriages between persons being within the prohib- ited degrees of consanguinity. Sect. 2. That all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void to all intents and purposes whatsoever." 5. The marriage in this case was within the forbidden degrees, not of consanguin- ity, but of affinity. And the legislature by this statute without, we are to infer, the fear of God before its eyes, had con- CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. § 879 volved in it, is justified by the immense importance of the sub- ject. Scarcely a heavier calamity could befall our country than firmed those marriages already celebrated which, as the Lords now urged, were fla- grant violations of God's law ; so that not even in a direct proceeding for the pur- pose could they, though celebrated in England before the passage of the stat- ute, be set aside. This was an expression of the legislative judgment on one point ; namely, that, " God's law " to the contrary notwithstanding, if parties within the pro- hibited degrees of affinity had entered into a form of marriage, true policy and right justice demanded that it should thereafter be held to be good. Upon this principle, as these parties had entered into what was a good marriage in the place in which it was solemnized, and as they had lived and become the parents of children iu such place, true policy and right judgment de- manded that it should be held good ever after, in England as well as elsewhere. This is the spirit of 5 & 6 Will. 4. c. 54 ; and the statute, moreover, iu the true spirit of the international private law on this subject, distinguished affinity from consanguinity, making the one class of marriages already celebrated valid, and leaving the other as they were before, voidable. Their Lordships expressed ap- probation of some observations which the consulted judges made through Chief -Jus- tice Tindal, in the Sussex Peerage Case ; thus, — "The only rule for the construc- tion of acts of Parliament is that they should be construed according to the in- tent of the Parliament which passed the act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound these words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the legisla- ture, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the stat- ute, and to have recourse to the preamble, which, according to Chief -Justice Dyer, is 'a key to open the minds of the makers of the act, and the mischiefs which they intended to redress.' " Sussex Peerage Case, 11 CI. & F. 85, 143. Now, if we look at the whole statute of 5 & 6 Will. 4, c. 54, including the preamble, we shall see that since it confirmed the voidable mar- riages of parties within the prohibited degrees of affinity, already celebrated in England, terming it " unreasonable " to pursue any other course, and expressing no horror at such a violation of what the judges in this case of Brook u. Brook deemed to be the law of God, — it con- veyed thereby the clear " intent " to have ' ' God's law " disregarded, and " reason " foUowed, whenever a question of construc- tion involving the like principle should thereafter arise. Indeed it seems marvel- lous that their Lordships, after having seen the whole power of the kingdom, as put forth alike in legislative acts and judicial decisions, sanction for some three hun- dred years this lamentable violation of " God's law " as they termed it, should, having thus witnessed the swallowing of cartload after cartload of the irreligious English camel, without rebuking the transaction, now turn, and strain out from the precious liquid jurisprudence of the kingdom the unconsecrated foreign gnat. 6. There is another remarkable thing in this case. The counsel who sought to sustain this marriage cited some Ameri- can authorities, one of which was the Massachusetts case of Sutton v. Warren, 10 Met. 451, above stated. Ante, § 871, 872. Speaking with some repetition, a nephew and aunt intermarried in Eng- land, where they were domiciled, being English people ; and after residing there as husband and wife about a year, re- moved to Massachusetts and there lived in the same relation. The husband gave to this wife his note for $1,300, and she sued him on it at law. He set up cover- ture in defence ; and, the marriage having" transpired prior to the enactment of 5 & 6 Will. 4, c. 54, and therefore being voidable and not void in England, and this being a collateral proceeding and not a suit to annul it, the Massachusetts Court decided the question precisely as it would have been decided in England had it arisen 383 §879 MARRIAGE CONSTITUTED, NULLITIES. [book m. for the courts or legislatures to confound our interstate mar-' riage law, — making void those marriages which validly occur there either before or after the passing of this statute ; namely, held the plea of cov- erture to be good. Aside from the view of the case to be derived from the prin- ciples of private international lav^, we of this country had for our municipal law that of England as it was when the country was settled, except as afterward changed by statutes ; and, happily for the intelligence o± the English profession, there is not in all the kingdom a barrister so ignorant as not to know that had this question been taken before any competent English tribunal at any time within the last three hundred years, down to and in- cluding the very moment when the House of Lords was sitting judicially upon this case of Brook v. Brook, it would have been decided precisely as it was decided in Mas- sachusetts. But in Massachusetts — and this was the only point of doubt — there was a statute making marriages of this kind void. The Massachusetts Court held this statute to apply to domestic marriages only, and not to marriages celebrated in England between English subjects. But — 7. Their Lordships were indignant at the foreign stupidity which could decide a question of an English marriage just as they would have done had the same mar- riage been litigated before them. Said the Lord Chancellor: "The decision in this case was pronounced in 1845. I am sorry to say that it rather detracts from the high respect with which I have been in the habit of regarding American deci- sions resting upon general jurisprudence. The question was, whether a marriage celebrated in England on the 24th of November, 1834, between Samuel Sutton and Ann Hills, was to be held to be a valid marriage in the State of Massachu- setts. The parties stood to each other in the relation of aunt and nephew, Ann Blills being own sister to the mother of Samuel Sutton. They were both natives of England, and domiciled in England at the time of their marriage. About a year after their marriage they went to Amer- ica, and resided as man and wife in the State of Massachusetts. By the law of 384 that State a marriage between an aunt and her nephew is prohibited, and is de- clared null and void. Nevertheless, the Supreme Court of Massachusetts held that this was [in this collateral proceeding] to be considered a valid marriage in Massa- chusetts [just as the House of Lords in England would have done, had the parties been in England, and the same case gone by appeal before this highest English tribunal]. But I am bound to say, that the decision proceeded on a total misap- prehension of the law of England. Jus- tice Hubbard, who delivered the judgment of the court, considered that such a mar- riage was not contrary to the law of Eng- land. [Justice Hubbard considered no such thing, if the language employed by him, in giving the opinion of the court, is to be taken as evidence of what he thought. His words are : " By the law of England, this marriage, at the time it was contracted, viz. in November, 1834, was voidable only, and could not be avoided until a sentence of nullity should be obtained in the Spiritual Court, in a suit instituted for that purpose."] Now there can be no doubt that, although con- tracted before the passing of 5 & 6 Will. 4, c. 54, it ^as contrary to the law of Eng- land, and might have been set aside as incestuous [so Justice Hubbard said it miglit], and that act gave no protection whatever to a marriage withiu the pro- hibited degrees of consanguinity; so that if Samuel Sutton and Ann Hills were now to return to England, their marriage might still be declared null and void [so said Justice Hubbard, but the proceeding before the Massachusetts tribunal was not one to declare it null and void ; and, as already observed, the Massachusetts Court decided the question precisely as the House of Lords would have done], and they might be proceeded against for in- cest. If this case is to be considered well decided and an authority to be followed, a marriage contrary to the law of the State in which it was celebrated, and in which the parties were domiciled, is to be held valid in another State into which they emigrate, although by the law of CHAP. XXIX.] MARRIAGE ENTERED INTO ABROAD. §879 out of the parties' own State contrary to the rule of their domicil For since the States wherein they are for domestic marriages, this State, as well as of the State of cele- bratioa and domicil, such a marriage is prohibited and declared to be null and void. [What ground there is in the case from which to draw such an inference, the reader has already seen. But he will relish the conclusion to which the lord of the woolsack arrived.] This decision, my Lords, may alarm us at the consequences which might follow from adopting foreign notions on such subjects, rather than ad- hering to the principles which have guided us and our fathers ever since the Refor- mation " ! 9 H. L. Cas. 220, 221. 8. To what extent these marriages, voidable for canonical impediment, were contrary to tlie law of England, we have already seen in part ; but another English case, referred to also in this of Brook v. Brook, and not dissented from, lights further the subject. A man had married his deceased wife's sister, and had cliil- dreu by both his first and second mar- riages. This was before the" passage of 5 & 6 Will. 4, c. 54, though the decision was afterward. Some person interested in the inheritance proposed to avoid the second marriage by proceedings in the Ecclesiastical Court ; and to prevent this, a family arrangement regarding the prop- erty was made, the party undertaking not to institute such proceedings ; and this agreement was held, in the English Court of Chancery, not to be invalid as against the policy of the law. Said Lord Chan- cellor Sugden : " The policy of the law (I do not now allude to the recent stat- ute) did not go so far as to declare such marriages absolutely null and void; but it left the matter open to have them avoided or not, as persons interested thought proper to take, or to omit to take, the steps necessary for the purpose. But on the other hand, in the event of the death of either party, before effectual proceedings were taken to avoid the mar- riage, no one could afterwards dispute its validity. The policy of the law, there- fore, so far from declaring such contracts void, actually provided that a period must arrive at which such marriages, if not VOL. I. — 25 before that time disturbed, became as effectual to all purposes as if there had not been originally any imperfection in them." Westby v. Westby, 2 Dru. & W. 502, 515, 516. According, therefore, to this very sound view of the English law, when the parties to the marriage in the Massachusetts case of Sutton v. Warren had placed themselves beyond the juris- diction of the English ecclesiastical courts, it was, by the law of England, made per- fect ; or, in the language of this Lord Chan- cellor, it " became " — that is, under the English law — "as effectual to all pur- poses as if there had not been originally any imperfection in " it. Whether, conse- quently, the principles of the English law should, if admitted in Massachusetts, have led to the marriage being held to be even voidable here, rather than perfected be- yond all further inquiry, is not a point so clear as to have justly subjected the Massachusetts tribunal to censure, had it followed the view deducible from the chancery decision, rather than the one de- ducible from the decision in the House of Lords. 9. See the comments of Gray, C. J. on this case in C. v. Lane, 113 Mass. 458, 18 Am. R. 509. He concludes by saying: " The judgment proceeds upon the ground that an act of Parliament is not merely an ordinance of man, but a conclusive decla- ration of the law of God ; and the result is that the law of God, as declared by an act of Parliament and expounded by the House of Lords, varies according to the time, place, length of life of parties, pe- cuniary interests of third persons, peti- tions to human tribunals, and technical rules of statutory construction and judi- cial procedure. . . . Such a decision, upon such reasons, from any tribunal, however eminent, can have no weight in inducing a court not bound by it as authority to overrule or disregard its own decisions." p. 470, 471. Directly contrary to this case of Brook V. Brook is Stevenson v. Gray, 17B.Monr. 193, already mentioned. Ante, § 846, 870. 385 § 882 MARRIAGE CONSTITUTED, NULLITIES. [bOOK III. celebrated must accept them, this would give us a revolting mod- ern polygamy. § 880. Fifthly. Marriages in ^^ Evasion" of the Law of the Parties^ Domieil : — The Rule — is that, since the validity of a marriage is derived from the law of the place of its solemnization,^ parties in whom there is no impediment of international law^ may choose their place to marry, and if the marriage is valid there, it will be so every- where, though they are purposely away from home, and the same transaction in the State of their domieil would not have made them married. This is not, in any legal sense, an — § 881. Evasion of their own Law. — We occasionally find in the books contrary intimations. Thus, Sir George Hay deemed that a mere transient going into a country one morning and com- ing away the next, is not sufficient to give the local law cogni- zance of the marriage ; but that there must be a domieil, or an established residence.^ And we have seen that the English House of Lords, in Brook v. Brook, required a domieil to create a capacity for the marriage in opposition to the law of the place which the parties left; but this does not extend to the forms of solemnization.* On the other hand, the current of American authority,^ not all,^ does not require a domieil for any purpose. There is, therefore, no scope for an argument founded simply on any idea of an " evasion " of the law of the domieil. As to the mere forms, — § 882. Gretna Green Marriages. — It waS formerly common for English parties, wishing to intermarry without a compliance with their own marriage acts, to go into Scotland and there inter- change the matrimonial consent simply in the presence of wit- nesses. Gretna Green was the most convenient point for the required hasty visit; and thus Gretna Green marriages became famous, and there was no question of their validity.^ But Par- liament, in 1856, by 19 & 20 Vict. c. 96, § 1, put an end to this 1 Ante, § 838, 839, 843, 845. § 123 a, note ; 2 Kent Com. 92 ; C. v. Lane, 2 Ante, § 833, 857-862. 113 Mass. 458, 18 Am. E. 509. 3 Harford v. Morris, 2 Hag. Con. 423, ^ Kinney v. C. 30 Grat. 858, 32 Am. E. 431, 4 Eng. Ec. 575, 579. See also the 690; S. o. Kennedy, 76 N. C. 251, 22 Am. remarlcs of Lord Mansfield in Eobinson v. R. 683. Bland, 2 Bur. 1077, 1079. '' Ante, § 321, note ; Dysart Peerage * Ante, § 877. Case, 6 Ap. Cas. 489, 511. * Ante, § 867-870 ; Story Confi. Laws, 386 CHAP. XXIX.j MARRIAGE ENTERED INTO ABROAD. § 885 by declaring that thereafter " no irregular marriage contracted in Scotland by declaration, acknowledgment, or ceremony shall be valid unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in Scotland for twenty-one days next preceding such marriage." ^ § 883. Sixthly. Legislative Extensions of the Marriage Laws over Citizens abroad : — Doctrine defined. — Since it is not competent for any govern- ment to exercise control over transactions within the territorial limit's of another government, compelling the rule that laws, whether statutory or unwritten, have no extra-territorial force ; ^ yet since every government may, by a special provision so quali- fied as not to interfere with the independence of other govern- ments, regulate as it cliooses the conduct of its subjects abroad ; ^ any one of our States may validly, however unwisely, ordain by express terms in a statute that the marriages of its citizens out- side of its territory shall be void if in non-compliance with rules which itself prescribes. Even if the State statute violates the unwritten international law, it binds the courts ; * but not, if counter to a treaty,^ or to the Constitution of the United States. § 884. otherwise expressed. — " Every State," says Burge, "re- tains the power of making a law requiring its own subjects to conform to it, in whatever country they may reside. It may, 'therefore, by its marriage law, expressly enjoin that the mar- riage of its subjects shall be preceded or accompanied by certain ceremonies, which are capable of being performed in whatever country the marriage is celebrated ; and it may declare that unless those ceremonies are performed, the marriage shall be void." And he instances Holland and France, whose respective governments have established rules concerning the marriages of their subjects abroad.^ § 885. In our States, — the author is not aware that this full right has ever been exercised. But it has been partially in some of them ; as, in Massachusetts, where the marriages of Massa- chusetts parties, entered into in other States " to evade " their 1 And see 41 & 42 Vict. c. 43. For the « Ante, § 835 (1,4), 863. interpretation of the statute in the text, 6 Bishop "Written Laws, § 13. see Lawford u. Davies, 4 P. D. 61. * 1 Burge Col. & For. Laws, 196. And 2 Ante, § 828, 850, 851, 866, 867, 873- see, as to France, Simonin v. Mallac, 2 875. Swab & T. 67 ; Scrimshire o. Scrimshire, 3 1 Bishop Crim. Law, § 109-123. 2 Hag. Con. 395, 4 Bug. Ec. 562. 387 § 887 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III, own laws, are by statute declared to be, contrary to former rul- ings of the courts,! in certain cases void.^ This sort of legisla- tion, if ever judicious, should be exercised with extreme caution. IV. The Doctrine that Marriage invalid where Celebrated is in- valid everywhere. § 886. Doctrine defined. — Correlatively to the doctrine of the last sub-title, if by the law governing at the place where a mar- riage is celebrated, whether between domiciled or transient' par- ties, it is invalid, it is so also in every other place or country,^ — no court giving to any foreign transaction or contract a validity withheld from it by the law under which it was made.* This rule is substantially without exception, yet the language of our books gives it some real or seeming — § 887. Exceptions. — Lord Stowell once said : " It is true, in- deed, that English decisions have established this rule, that a foreign marriage valid by the law of the place where it is cele- brated, is good everywhere else ; but they have not, e converso, established, that marriages of British subjects, not good accord- ing to the general law of the place where celebrated, are univer- sally, and under all possible circumstances, to be regarded as invalid in England. It is, therefore, certainly to be advised that the safest course is always to be married according to the law of the country, for then no question can be stirred ; but if this cannot be done on account of legal and religious difficulties, the law of this country does not say that its subjects shall not marry abroad. And even in cases where no difficulties of that insuper- able magnitude exist, yet if a contrary practice has been sanc- tioned by long acquiescence and acceptance of the one country that has silently permitted such marriages, and of the other that has silently accepted them, the courts of this country, I presume, would not incline to shake their validity upon these large and 1 Ante, § 881. v. Dalrymple, 2 Hag. Con. 54, 4 Eng. 2 R. S. c. 75, § 6, re-enacted Gen. Stats. Ec. 485 ; Kent v. Burgess, 11 Sim. 361 ; c. 106, § 6 ; Pub. Stats, c. 145, § 10. For MoCuUoch v. McCuIIoch, Ferg. App. 257, the interpretation of this statute, see C. v. 3 Eng. Ec. 419 ; McDeed v. McDeed, 67 Hunt, 4 Cush. 49; C. v. Lane, 113 Mass. 111. 545; Lacon v. Higgins, D. & R., N. P. 458, 18 Am. R. 509. 38, 3 Stark. 178; Roche <^. Washington, " Cases cited ante, § 843; Ferg. Consist. 19 Ind. 53, 81 Am. D. 376. See The City Law, 18, 28, 29; Greenwood v. Curtis, 6 t/. Williamson, 10 Philad. 176. Mass. 358, 378, 4 Am. D. 145 ; Dalrymple * Bishop Con. § 1383. 388 CHAP. XXIX.J MARRIAGE ENTERED INTO ABROAD. § 892 general theories, encountered as they are by numerous exceptions in the practice of nations." ^ Now, — § 888. Enumerated. — The exceptions thus stated cover, it is believed, substantially the entire ground. They are. First, cases wherein the parties cannot marry conformably to the law where they are. Secondly, those wherein there is in the foreign country a law applicable to sojourners from other countries, under which they are married, differing from the general lex loci contractus, yet recognized as well by it as by the law of their domicil. To which may be added, Thirdly, the very case under consideration by the learned judge when he made the foregoing observations ; namely, that of a victorious invading army, carrying with it the laws of its own country for the protection of persons within its lines and the general range of its dominion. But — § 889. One Exception only. — The first-named exception is the only real one. Under the second and third, the marriage is according to a law, though hot the general one, recognized at the place of its celebration. Let us look at these exceptions in their order. § 890. First. If the parties are sojourning in a foreign country, and under the local law there is no way by which they can enter into valid marriage, they may marry in their own forms and it will be recognized at home as good? § 891. Why ? — The reason for this is, that marriage is a nat- ural right, of which no government will allow its subjects, wher- ever abiding, to be deprived. So that when they are abroad, and the local law provides no means whereb}' they can exercise this right, the great law of necessity to which all other laws bend,^ compels the courts of all nations to accept as valid a marriage not conforming, because it could not, to the lex loci. Thus, — § 892. Impediment of Religion — (Clerical Presence Impossible). — On a divorce bill in the House of Lords, a doubt was expressed of the validity of the marriage, celebrated at Rome by a Protes- tant clergyman, both parties being Protestants. But a Roman Catholic clergyman testified that at Rome two Protestants could not marry according to the lex loci, because no Catholic priest 1 Ending u. Smith, 2, Hag. Con. 371, & Div. 289; Kent v. Burgess, 11 Sim. 390, 4 Eng. Ec. 551, 560. See Newbury 361. V. Brunswick, 2 Vt. 151, 19 Am. D. 703. 3 i Bishop Crim. Law', § 54, 346-355, '•i Rogers Ec. Law, 652 ; Poynter Mar. 824 389 § 896 MAREIAGE CONSTITUTED, NULLITIES. [BOOK HI. would perform the ceremony ; so this marriage was held to be good.i And Lord Campbell once mentioned it as having been repeatedly decided, and he deemed it to be the law, that where it is impossible to procure the presence of a priest, there may be a valid marriage by the mere consent of the parties.^ But if, for example, Protestants at Rome choose to abjure their religion and connect themselves with the Roman Church, for the sole purpose of entering into a marriage, it will be good, conforming thus to the local law.^ § 893. Place resorted to for Marriage. — In reason, for we have probably no adjudications of the question, a marriage void by the law of the place of its celebration, in a case where such law pro- vides no valid method, would not be made good by the rule we are considering if the parties went there simply to avoid compli- ance with the law of their domicil. There was no necessity ; for their own law was open to them at home, and it would not assist them in eluding its inhibitions.* And — § 894. Uninhabited — High Seas. — It WOuld perhaps be the same also where the resort was, for the like purpose, to an un- inhabited region or the high seas ; ^ yet in this case the princi- ple would not be quite the same.^ § 895. Secondly. If in the place of celebration there is a spe- cial law, differing from the general, permitting foreigners to marry in a way peculiar to themselves and making the marriage good, they may avail themselves of it, and their marriages if not contrary to the law of their domicil will be valid also at home. § 896. Explained — (Differing Religions — Races). — Lord Stowell in a leading case ^ elaborates the doctrine, thus : " It is observed } Lord Cloncurry's Case, Cruise on Hossack Confl. Laws, 146, 147. And see Dignities, 276, Wadd. Dig. 2-38, note. I post, § 901. understand this case to have proceeded ^ Eeg. v. MiUis, 10 CI. & F. 534, 786 ; on tlie assumption that the marriage s. p. Beamish v. Beamish, 9 H. L. Cas. wonld have been nnll at Rome. In the 274. Sussex Peerage Case, 11 CI. & F. 85, 152, s g^^ft y_ Kelly, 3 Knapp, 257. the BTidence was that a marriage at Rome * And see post, § 901, 902. between English Protestants, according to ^ Holmes v. Holmes, 1 Abb. U. S. 525. the rites of their own church, would be ^ And see further as to the limit of there recognized as valid. Lord Campbell the doctrine, post, § 901. See Oneale v. expressed surprise at the evidence. But C. 17 Grat. 582; Hynes v. McDermott, 7 if this is so, it only shows that the author- Abb. N. Cas. 98 ; Davis v. Davis, 1 Abb. ities there acknowledge the jus gentinm N. Cas. 140. (see post, § 895-901), which respects the ' Ending v. Smith, 2 Hag. Con. 371, 4 religious scruples of foreigners. See also Eng. Ec. 551, 557. See 1 Burge Col. & Lockwood u. Lockwood, "Wadd. Dig. 238; For, Laws, 199. 390 CHAP. XXIX.J MARRIAGE ENTERED INTO ABROAD. § 897 by the learned Dr. Hyde, that there is in every country a body of inhabitants, formerly much more numerous than at present (and now generally allowed to be of foreign extraction), having a language and usages of their own, leading an erratic life, and distinguished by the different names of Egyptians, Bohemians, Zingarians, and other names, in the countries where they live. Upon such persons the- general law of the country operates very slightly, except to restrain them from injurious crimes ; and the matrimonial law hardly, I presume, in fact, anywhere at all. In our own country and in many others, there is another body, much more numerous and respectable, distinguished by a still greater singularity of usages, who, though native subjects under the pro- tection of the general law, are in many respects governed by in- stitutions of their own, and particularly in their marriages ; for it being the practice of mankind to consecrate their marriages by religious ceremonies, the differences of religion, in all countries that admit residents professing religions essentially different, un- avoidably introduce exceptions in that matter to the universal- ity of that rule which makes mere domicil the constituent of an unlimited subjection to the ordinary law of the country. § 897. Further as to which. — " The true statement of the case results to this, that the exceptions, when admitted, furnish the real law for the excepted cases ; the general law steers wide of them. The matrimonial law of England for the Jews is their own matrimonial law ; and an English court Christian, examin- ing the validity of an English Jew marriage, would examine it by that law, and by that law only, as has been done in the cases that were determined in this court on those very principles.^ If a rule of that law be that the fact of a witness to the marriage having eaten prohibited viands, or profaning the Sabbath Day, would vitiate that marriage itself, an English court would give it that effect, when duly proved, though a total stranger to any such effect upon an English marriage generally. I presume that a Dutch tribunal would treat the marriage of a Dutch Jew in a similar way, not by referring to the general law of the Dutch Protestant consistory, but to the ritual of the Dutch Jews estab- lished in Holland." ^ Still,— 1 Lindo 0. Belisario, I Hag. Con. 216, ^ The following passage, from Story's 4 Eng. Ec. 367 ; Gbldsmid v. Bromer, I Conflict of Laws, § 2 a, will further illus- Hag. Con. 324, 4 Eng. Ec. 422. trate this subject : " When the Northern 391 § 899 MARRIAGE CONSTITUTED, NULLITIES. [BOOK III. § 898. "With us — Caution. — In considering marriages in our States with reference to their validity in our own tribunals, we can look at these utterances of this great English judge only with caution. The author is not aware that in our country the courts have accepted as valid any marriages celebrated within the terri- torial limits of the government under which they sat, if void by the general law, and not within any statutory exception, because the parties were Jews, Gypsies, Mormons, or of any other special race or sect. § 899. Special Places abroad — International Law. — Lord Stow- ell continues : " What is the law of marriages, in all foreign es- tablishments, settled in countries professing a religion essentially different ? In the English factories at Lisbon, Leghorn, Oporto, Cadiz, and in the factories in the East, Smyrna, Aleppo, and others, in all of which (some of these establishments existing by authority under treaties, and others under indulgence and tolera- tion) marriages are regulated by the law of the original country, to which they are still considered to belong. An English resi- dent at St. Petersburg does not look to the ritual of the Greek Church, but to the rubric of the Church of England, when he con- tracts a marriage with an Englishwoman.^ Nobody can suppose that whilst the Mogul empire existed an Englishman was bound to consult the Koran for the celebration of his marriage. Even where no. foreign connection can be ascribed, a respect is shown to the opinions and practice of a distinct people. The validity of a Greek marriage in the extensive dominions of Turkey is left to depend, I presume, upon their own canons, without any refer- ence to Mahometan ceremonies. There is a jus gentium upon this matter, — a comity, which treats with tenderness, or at least with nations, by their irruptions, finally snc- allowed each of the races over whom they ceeded in e-stablishing themselves in the had obtained an absolute sovereignty to Eoman empire and the dependent nations regulate their own private rights and af- snbjected to its sway, they seem to have fairs according to their own municipal adopted, either by design or from acci- jurisprudence. It has accordingly been dent or necessity, the policy of allowing remarlied by a most learned and eminent the different races to live together, and jurist that from this state of society arose to be governed by and to preserve their that condition of civil rights, denominated own separate manners, laws, and institu- personal rights, or personal laws, in oppo- tions, in their mutual intercourse. While sition to territorial laws." the conquerors, the Gotlis, Burgnndians, i "A register of English marriages, Pranks, and Lombards, maintained their celebrated at St. Petersburg, is trans- own laws and usages and customs over mitted to the registry of the Consistory their own race, tliey silently or expreaslv Court of London." 392 CHAP. XSIX.] MARRIAGE ENTERED INTO ABROAD. § 901 toleration, the opinions and usages of a distinct people in this transaction of marriage. It may be difficult to say a priori how far the general law should circumscribe its own authority in this matter ; but practice has established the principle in several in- stances, and where the practice is admitted it is entitled to acceptance and respect. It has sanctioned the marriages of for- eign subjects in the houses of the embassadors of the foreign country to which they belong. I am not aware of any judicial recognition upon the point ; but the reputation which the validity of such marriages has acquired makes such a recognition by no means improbable, if such a question was brought to judgment." ^ Further as to — § 900. Embassador's Chapel — (W^ithin British Lines). — In Eng- land, while there was no statute on the subject, the privilege of an embassador's chapel was deemed to extend only to cases where both the parties are of the embassador's country .^ Thereupon, in 1823, to set at rest the various doubts, 4 Geo. 4, c. 91, declared valid the marriages of British subjects solemnized by a minister of the Church of England in the chapel or house of any British embassador or minister residing within the country to the court of which he is accredited, or in the chapel belonging to any British factory abroad, or in the house of any British subject residing at such factory, and marriages solemnized within the Britisli lines ^ by any chaplain or other person officiating under the orders of the commanding officer of a British army abroad.* Under this statute, contrary to the common-law rule, the marriages are good when one only of the parties is a British subject.^ Now, — § 901. Limit of Doctrine — (The Reason). — We perceive the principle to be, that presumptively the law of the country of the marriage recognizes the jus gentium on this subject, and so holds it to be good. Therefore if in the particular instance such law is found not to do this, yet to provide a way of its own, there is the same need for resident foreigners and transient persons as for others to conform to it, to make their marriages valid in their own country.® And — 1 Ruding V. Smith, 2 Hag. Con. 371, * See Shelf. Mar. & Div. 78-87 ; Kent 384, 4 Eng. Ec. 551, 557. v. Burgess, 5 Jur. 166. 2 Perti-eis u. Tondear, 1 Hag. Con. 136. * Lloyd v. Petitjean, 2 Cnrt. Ec. 251, See 2 Roper Hus. & Wife, by Jacob, 498 ; 7 Eng. Ec. 105. And see Armitage u. 1 Burge Col. & For. Laws, 168. Armitage, Law Rep. 3 Eq. 343. 3 The Waldegrave Peerage, 4 CI. & F. ^ Rex v. Brampton, 10 East, 282, 286 ; 649. Buller v. Freeman, Amb. 301, 303 ; Roach 393 § 903 MAEEIAGE CONSTITUTED,' NULLITIES. [BOOK III. § 902. Burdensome Local Law. — If merely the local law is more burdensome than the parties' own, yet is not practically prohibitory, transient persons for whom it has no independent provision must follow it to render their marriage good at home.-^ And still we have intimations that, within a principle already ex- plained,^ if its requirement is very unreasonable, — as, if it makes indispensable the consent of parents to the marriages of minors, and fixes the age of majority at thirty or forty years, — tliis will be equivalent to an impossibility, so the marriage without com- pliance therewith will be good.^ But where, in one case, it was sti-ongly urged by counsel that a marriage celebrated in Belgium, without a compliance with the lex loci, was good because by the Belgian law the parties could not marry until they had been in the country six months, while at the time of this marriage they had not been there so long ; and because, by such law, which made the age of majority twenty-five, the consent of parents was required, while the age of this husband was but twenty-four, — the Vice-Chancellor, evidently impressed with the general truth of the proposition, which was likewise conceded by the opposite counsel, said that here there was no insuperable obstacle, there- fore he held the marriage void.* § 903. Consular Marriages — (^With us). — Mere COnsuls, with- out diplomatic powers, are different from ministers.^ And it has been deemed in England that marriages abroad before the consul of the parties' domicil are not within the protection we are con- sidering.'' In this country, the question has been carefully exam- ined, and the result is the obvious one that by the unwritten law the consular marriage will be valid or not at the home of the parties, according as it is the one or the other in the country of its celebration. There are opinions on the question by a late attorney-general of the United States.'' And it came under judi- cial cognizance in Massachusetts as follows. A marriage of an American man to a German woman had been celebrated before the American consul at Prankfort-on-the-Main ; and upon a con- sideration of the testimony and the law, the court held it to be V. Garvan, 1 Ves. Sen. 157 ; Rogers Ec. s Ruding «. Smith, 2 Hag. Con. 371, Law, 2d ed. 650; 2 Koper Hus. & Wife, 4 Eng. Ec. 551. by Jacob, 497. i Kent v. Burgess, 11 Sim. 361. 1 Rogers Ec. Law, 2d ed. 651. ^ i Bishop Crim. Law, § 129. 2 Ante, § 890-894. « Kent v. Burgess, H Sim. 361. ' 7 Opinions Att'y Gen. 18, 342. 394 CHAP. ZXIX.J MARRIAGE ENTERED INTO ABROAD. § 906 good. Two Frankfort lawyers were examined on each side ; the two against the marriage declaring that it would not be accepted as good at Franlcfort, yet citing no authorities. The two on the other side testified tliat it would be there good, and they showed that the American consul had celebrated many such marriages and the German tribunals had sustained them. The Massachu- setts Court followed the latter opinion, — it being corroborated by an examination of tlie written marriage law of Frankfort, which in its provisions could not well be applied to any but domiciled persons, leaving the inference almost inevitable that it was not intended by the maker to furnish a rule for transient foreigners.^ In a preceding chapter we saw that of late a statute of the United States has autliorized and regulated consular marriages abroad.^ § 904. Thirdly. An invading army carries with it the law of the country to which it belongs ; and if, while hostilities are progressing, a marriage is celebrated within its lines, it need not conform to the law of the invaded country. § 905. Nature and Limits of the Doctrine. — This partly results from the familiar rule that colonists to an uninhabited country take witli them the law of the mother countrj-, including the law matrimonial ; ^ and partly from an exception to the doctrine that the laws of a conquered country remain in force until altered by the conquerors.* An invading army is not subject to the munici- pal jurisdiction of the country invaded, but is more nearly in the position of colonists under the protection of their own sovereign. And it has been made a question whether, after the invaded country has submitted, the conquering sovereign's subjects in it are bound by its laws, as the original inhabitants are, until he has had the opportunity to examine them, and to alter them if deemed unsuited to his own subjects.^ Therefore, — § 906. Illustrations. — In a case which never reached a decision, it was intimated that the law of France would not apply to an officer in an English army of occupation, between whom and an English lady a marriage was celebrated by the army chaplain ; since the parties were not under the dominion of the French law.^ 1 Loring v. Thorndike, 5 Allen, 257. bell v. Hall, 1 Cowp. 204, 209,; Fowler v. 2 Ante, § 158. Smith, 2 Cal. 39. " Lautour v. Teesdale, 8 Taunt. 830 ; 6 gee the whole of Lord Stowell's mas- ante, § 115-149. terly judgment in Ruding v. Smith, 2 * Calvin's Case, 7 Co. 1, 176; Camp- Hag. Con. 371, 4 Eng. Ec. 551. ^ Burn Lyle V. EUwood, Law Rep. 19 Eq. 98. 'i In re Taylor, 9 Paige, 611. ' 1 Bishop Crim. Proced. § 1083-1087, 12 Cases cited to the last section ; In re 1248. Taylor, 9 Paige, 611, 617; Westfield v. 408 CHAP. XXXI.] THE PRESUMPTIONS AND THEIR EFFECT. § 943 practical difficulties, but their solution will in general be reason- abl}' plain.i § 94.0. Limit of Doctrine. — The doctrine of this sub-title is not practically available in every sort of case. If the particular issue involves two cohabitations, from one of which the existence of the marriage in question would be presumed, and from the other its non-existence, presumption destroys pi'esumption, and some other evidence must take its place, — a proposition illustrated in the last chapter.2 So that then what is called a — § 941. Fact of Marriage — must be proved, which, with the cir- cumstances wherein it is required, will be explained in a chapter further on.^ Now, — § 942. Generally available. — The issues in which presumption thus destroys presumption are few and exceptional. So that one writing without the exceptions in his mind would in broad terms say, and so commonly do our books, that marriage is provable by cohabitation and repute.* For example, — § 943. Cases enumerated. — Cohabitation and repute are ade- quate in questions of legitimacy.^ So even it was held wliere one sought to recover as heir of a deceased brother, during the life of the father, who was not called as a witness.^ And this evidence will suffice in a woman's action to liave dower'' or in- Warren, 3 Halst. 249; Stevenson v. Mc- 8 B. Monr. 113; Chiles v. Drake, 2 Met. Reary, 12 Sm. & M. 9, 56, 51 Am. D. 102 ; Ky. 146, 74 Am. D. 406 ; Fornshill v. Mur- Hervey «. Hervey, 2 W. Bl. 877; Rayn- ray, 1 Bland, 479; Taylor v. Robinson, 29 ham V. Canton, 3 Pick. 293 ; Redgrave i'. Me. 323 ; Henderson v. Cargill, 31 Missis. Redgrave, 38 Md. 93; C. v. Hurley, 14 367; Spears v. Burton, 31 Missis. 547; Gray, 411 ; Holmes v. Holmes, 1 Abb. Senser v. Bow^er, 1 Pa. (R. P. & W.) 450; U. S. 525; Angevine's Case, Tucker, 178, Fetts o. Fo,ster, 2 Hayw. 102; Leader v. 245 ; Vincent's Appeal, 60 Pa. 228 ; Jones Barrj', 1 Esp. 353 ; S. v. Winkley, 14 N. H. V. Reddick, 79 N. C. 290 ; Rockwell v. 480, 494 ; Young v. Foster, 14 N. H. Tunnicliff, 62 Barb. 408. 114 ; Weaver v. Cryer, 1 Dev. 337 ; Taylor 1 Bicking's Appeal, 2 Brews. 202 ; Lyle v. Shemwell, 4 B. Monr. 575 ; Fenton v. V. EUwood, Law Kep. 19 Eq. 98; Succes- Reed, 4 Johns. 52, 4 Am. D. 244; Ford v. sion of Hubee, 20 La, An. 97 ; C. v. Omo- Ford, 4 Ala. 142 ; Arthur v. Broadnax, 3 hundro, 2 Brews. 298 ; De Amarelli's Ala. 557, 37 Am. D. 707 ; Miller v. White, Estate, 2 Brews. 239 ; Estate of Beverson, 80 HI. 580 ; Proctor v. Bigelow, 38 Mich. 47 Cal. 621 ; Yardley's Estate, 75 Pa. 207; 282; Lowry ■,■. Coster, 91 111. l?"?; Jack- Green V. S. 59 Ala. 68. ' son i: S. 8 Tex. Ap. 60. 2 Ante, § 923. 5 Clayton v. Wardell, 5 Barb. 214 ; 3 Post, c. 34. Senser v. Bower, 1 Pa. (R. P. & W.) 450; * Northfield o. Vershire, 33 Vt. 110; Eaton v. Bright, 2 Lee, 85, 6 Eng. Ec. 47; Archer v. Haithcock, 6 Jones, N. C. 421 ; Cheseldine v. Brewer, 1 Har. & McH. 152. Thorndell v. Morrison, 25 Pa. 326 ; P. t/. « Fleming v. Fleming, 4 Bing. 266, 12 McCormack, 4 Par. Cr. 9 ; Harman v. Moore, 500. Harman, 16 111 85 ; Donnelly v. Donnelly, . ' Young v. Foster, 14 N. H. 114 ; Sell- 409 § 946 EVIDENCE OP MARRIAGE. [BOOK IV. herit property ^ as widow of the deceased j in favor of husband and wife who jointly, as such, bring detinue,^ or ejectment,^ or any other ordinary civil action ;* in a husband's suit for the slan- der of asserting that he is living in concubinage with the woman whom he claims to be his wife ;f in an action against husband and wife for breach of the wife's promise, made before marriage, to marry the plaintiff ;•> or to charge land, held in the name of the wife, as the property of the husband;^ and in settlement cases.^ III. The Presumption that Official Persons have done their Duty. § 944. Doctrine defined. — When the law casts upon an offi- cial person a duty connected with his office, and the time for its performance transpires, the prima facie presumption is that it is done.^ § 945. Why? — This doctrine is simply a branch of that ex- plained in the last sub-title. ^"^ It is in harmony with the com- mon course of things.^' Ordinarily a person so situated would not needlessly expose himself to penal consequences.^ This reason- ing applies equally whether the statute in terms provides a pen- alty for disobedience or not ; for a legislative act of this public nature, inflicting no penalty, is in the highest degree penal, a breach of its requirements being punishable by fine and imprison- ment. ^^ Indeed, if disobedience by the officer were not punish- able, still it is believed the presumption would remain that his acts conform to the law.^* To apply the doctrine, — § 946. Preliminary Steps — (Banns, License, &c.). — When a per- son — for example, a clei'gyman — is authorized to solemnize mar- man V. Bowen, 8 Gill & J. 50, 29 Am. D. » Vaughn v. Biggers, 6 Ga. 188; Best 524 ; Chambers v. Dickson, 2 S. & E. 475 ; Ev. 4th Lond. ed. § 348, p. 460 ; Williams Graham ;;. Law, 6 XJ. C. C. P. 310; Pear- v. East India Co. 3 East, 192, 199. son V. Howey, 6 Halst. 12; Stevens v. w Williams v. East India Co. 3 East, Reed, 37 N. H. 49; Fleming v. Fleming, 192, 199. 8 Blackf. 234. " Ante, § 927. 1 Stover V. Boswell, 3 Dana, 232. See J2 pjers v. Piers, 2 H. L. Cas. 331 ; Eeg. Kuhl V. Knauer, 7 B. Monr. 130. v. Cresswell, 1 Q. B. D. 446, 447. 2 Crozier v. Gano, 1 Bibb, 257. ^^ 2 Burn Ec. Law, 489 ; 1 Bishop Grim. 3 Hammick v. Bronson, 5 Day, 290. Law, § 237, 238 ; Bishop Stat. Crimes, * Boatman v. Curry, 25 Mo. 433. § 138. 5 Hobdy V. Jones, 2 La. An. 944. n Fears ;;. Thompson, 82 Ala. 294, 296; 6 Pettingill v. McGregor, 12 N. H. 179. Mayfield v. Allen, Minor, 274 ; McAbee v. ' Jenkins v. Bisbee, 1 Edw. Ch. 377. Parker, 78 Ala. 573; C. v. Murray, 2 Va. 8 Eex V. Stockland, Bur. Set. Cas. 508 ; Cas. 504 ; Bridges v. Ridgley, 2 Litt. 395. Newburyport v. Boothbav, 9 Mass. 414. 410 ' CHAP. XXXI.J THE PRESUMPTIONS AND THEIR EFFECT. , § 950 riage, if the law requires preliminary steps, such as the procuring of a license, the publication of banns, or the like, the presumption is that he will not officiate at a marriage until he has ascertained that these steps have been taken. Consequently mere proof of the service by him establishes valid marriage prima facie, even though the preliminaries are in law indispensable, and lie who claims that they did not transpire must show it by evidence.^ The same rule extends to the — § 947. Marriage Record. — When a marriage is proved by a record, as will be explained in a chapter further on, no publica- tion of banns or other required preliminary need appear either in the record or otherwise ;. because the law presumes that all per- sons connected with the solemnization and the recording have done their duty, and this presumption holds good until the con- trary is established by proofs.^ Even — § 948. Place of Marriage. — A presumption in these cases will arise in favor of the place of the marriage, where the statute requires it to be in a particular place.^ IV. The Presumption of Life. § 949. When the Question. — When the validity of a marriage depends on the death of a former husband or wife, and there is no direct proof of this fact, the presumption of life antagonizes that of innocence, and both variously combine with the circum- stances special to the case. The two presumptions coming thus into conflict, the question will be which in the particular instance must give way. Thus, — § 950. Presumption of Life defined. — A person absent and not heard of is ordinarily presumed to be living until seven years 1 Piers I). Piers, 2 H. L. Cas. 331, 13 Lloyd v. Passingham, Cooper, 152. The Jar. 569; The Lauderdale Peerage, 10 Consent of Parents, — when essential to Ap. Cas. 692, 734, 742, 743, 749, 753, 755, the validity of a marriage, is prima facie 761 ; Davis o. Davis, 7 Daly, 308 ; Murphy established by a mere record of the mar- V. S. 50 Ga. 150. riage itself. Rex o. James, Euss. & Ry. 2 Milford V. Worcester, 7 Mass. 48 ; St. 17 ; Rex v. Morton, Russ. & Ry. 19, note ; Devereux v. Much Dew Church, 1 W. Bl. Eex v. Butler, Russ. & Ry. 61. See ante, 367 ; Steadman v. Powell, 1 Add. Ec. 58, § 552. 2 Eng. Ec. 26, 33. And see Wray i'. 3 Reg. i>. Cresswell, 1 Q. B. D. 446, Ho-ya-parnubby, 10 Sm. & M. 452. Other- 447; Sichel v. Lambert, 15 C. B. N. s. wise of a register kept only as of custom, 781 ; Reg. v. Mauwaring, Dears. & B. 132, not in pursuance of any law establishing 37 Eng. L. & Eq. 609 ; s. c. nom. Reg. u. it. Saunders «. Saunders, 10 Jur. 143; Mainwaring, 7 Cox C. C. 192. 411 §951 EVIDENCE OF MARRIAGE. [book IV. have elapsed, then the presumption is that he is dead. But there is no presumption that the life continued during the entire period, or that it was extinguished at any particular time within it. Nor is the rule of seven years absolute ; any circumstances may be shown creating a probability that life did not continue so long;i or, on the other hand, special facts may neutralize the presump- tion thougli seven years have elapsed.^ Thereupon, — § 951. Presumption of Innocence conflicting. — Tf , while this pre- sumption of the continued life of an absent party to a marriage remains, the other enters into a second marriage, the presump- tion of the innocence of such marriage ^ operates as a counter pre- sumption of death. Should it be urged that in natural reason the 1 1 Greenl. Ev. § 41 and note ; Eex v. Harborne, 2 A. & E. 5-tO ; Cofer v. Thur- mond, 1 Kelly, 538 ; Newman v. Jenkins, 10 Pick. 515 ; •Wambaugh v. Schenck, Penning. 229; S. v. Moore, 11 Ire. 160, 53 Am. D. 401 ; Gilleland v. Martin, 3 McLean, 490 ; Knight v. Nepean, 5 B. & Ad. 86; Nepean v. Knight, 2 M. & W. 894 ; Bailey v. Bailey, 36 Mich. 181 ; Learned v. Corley, 43 Missis. 687 ; Rosen- thal V. Mayhugh, 33 Ohio St. 155; In re Ackerman, 2 Eedf. 521 ; Ilickman v. Up- sall. Law Eep. 20 Eq. 136; P. v. Etz, 5 Cow. 314; Tisdale v. Conn. Mut. Life Ins. Co. 26 Iowa, 170, 96 Am. D. 136; Hancock v. American Life Ins. Co. 62 Mo. 26 ; Montgomery v. Bevans, 1 Saw. 653; Puckett v. S. 1 Sneed, 355; Spencer ».' Roper, 13 Ire. 333; Esterly's Appeal, 109 Pa. 222; Davie v. Briggs, 97 TJ. S. 628; Boyd v. New Eng. Mut. Life Ins. Co. 34 La. An. 848 ; Evans v, Stewart, 81 Va. 724. See "Whiting v. Nicholl, 46 111. 230, 92 Am. D. 248 ; Moffit ;;. Varden, 5 Cranch C. C. 658. 2 Watson V. England, 14 Sim. 28; Bowden v, Henderson, 2 Smale & G. 360 ; McCartee v. Camel, 1 Barb. Ch. 455. For example, one having a fixed and known place of residence abroad is not presumed at the end of seven years to be dead if no inquiry after him has been made. Went- worth V. "Wentworth, 71 Me. 72, 74, Peters, J. observing : " The rule of law is that, upon a person's leaving his usual home and place of residence, for temporary pur- poses, and not being heard of or known to be living for the term of seven years, the 412 presumption is that he is not alive. It must appear that he has not been heard of by those persons who would naturally have heard from him during the time had he been alive. The rule, however, does not confine the intelligence to any partic- ular class of persons. It may be to per- sons in or out of the family. The mere failure to hear from an absent person for seven years, who was known to have had a fixed place of residence abroad, would not be sufficient to raise the presumption of his death, unless due inquiry had been made at such place without getting tidings of him." Citing Loring v. Steineman, 1 Met. 204, 211 ; Plynn o. Coffee, 12 Allen, 133; George v. Jesson, 6 Ea.st, 80; Lloyd V. Deakin, 4 B. & Aid. 433 ; France v. An- drews, 15 Q. B. 756, 760; Bac. Abr. Evi- dence, H. and cases ; 2 Greenl. Ev. § 278 and notes ; White v. Mann, 26 Maine, 361 ; Stevens v. McNamara, 36 Maine, 176, 178, 58 Am'. D. 740; Kidder v. Blaisdell, 45 Maine, 461, 467 ; Stinchfield v. Emer- son, 52 Maine, 465, 83 Am. D. 524. See Lessee of Scott v. Ratliffe, 5 Pet. 81. On the necessity of inquiry, I will add North Carolina University v. Harrison, 90 N, C. 385. So the naked fact that one was alive in 1839, nothing more, has been held not to raise the presumption that he was dead in 1877. Such a person, or one having his home abroad, is not " absent " within the defining in my text. As to the Kentucky statute, in affirmance of the common-law rule, see Foulks u. Rhea, 7 Bush, 568. 3 Ante, § 931, 932. CHAP. XXXI.] THE PRESUMPTIONS AND THEIR EFFECT. § 953 marriage does not render the death more probable, the reply is that actual belief and conclusion from presumption are not neces- sarily identical,! yet truly the marriage is an added ground for inferring death. For right-minded men and women, as all are assumed to be,^ will not knowingly commit polygamy. And one who has lived in matrimony with another can judge better than a stranger of the probabilities of the other's death under the special facts best known to him ; so that in the particular instance his conclusion is more likely to be right than the general rule of the law, which was framed by strangers for the average person and case. For which reason, and because a conflict of presumptions has unavoidably come, and the issue of fact must in some way be decided, — § 952. How balance Presumptions. — There is no absolute rule that either one C/f these conflicting presumptions shall give way to the other, but the leaning of the law is to innocence.^ Thus, — § 953. Second Marriage after less than Seven Years. — If a mar- ried partner has been absent and unheard of less than seven years, then the other marries, the law has no unyielding result, but in a general way favors the presumption of innocence, making the sec- ond marriage good.* Yet the question of life or death is, under proper supervision of the court, of fact for the jury.^ And a find- ing was sustained which upheld a marriage entered into after one year's absence ;® and another, which refused to uphold it when cel- ebrated within twenty-five days after the absent party was known to be alive.''' Where the trial court refused to instruct the jury that the deatli of the former husband should be presumed at the time of the second marriage, which was two years after he was last known to be alive, and they found against it, a new trial was 1 Ante, § 927. 4 Johnson v. Johnson, 114 111. 611, 617, 2 Ante, § 931. 55 Am. R. 883 ; Senser v. Bower, I Pa. 8 Post, § 958 ; Montgomery v. Bevans, (R. P. & W.) 450 ; Reg, v. Cross, 1 Fost. 1 Saw. 6.53; Lockhart v. White, 18 Tex. & F. 510; Spears v. Burton, 31 Missis. 102, and cases in the subsequent notes. 547; Bishop Stat. Crimes, § 611. See See Murray v. Murray, 6 Or. 17. It is also Gibson v. S. 38 Missis. 313 ; Dixon v. "a general rule that the presumption of P. 18 Mich. 84. See O'Gara v. Eisenlohr, marriage is not the same as the presump- 38 N. Y. 296; Wright w. Wright, 48 How. tion raised with regard to other facts Pr, 1, 7. which may be presumed either the one = Reg. v. Lumley, Law Rep. 1 C. C. way or the other, that the presumption 196; Murray v. Murray, 6 Or. 17. of marriage is something much stronger." " Rex v. Twyning, 2 B. & Aid. 386. Lord Cairns, in De Thoren „. Attorney- ' Rex v. Harborne, 2 A. & E. 540. General, 1 Ap. Cas. 686, 690. 413 § 954 EVIDENCE OF MABRIAGE. [BOOK IV. ordered.^ A query has been suggested whether this case did not err in making the question one of law rather than of fact.^ Still, looking at it as of fact, which pretty plainly it was, the verdict may be said to proceed from such misapprehension of the true legal principle as to require the court to set it aside.^ § 954. Special Facts — (Rule). — There can probably be no exact rule, even of evidence, to determine which of the two presump- tions, of innocence or of life, shall in given circumstances prevail.* Doubtless in most instances there will be some special fact, co- operating with the one or the other of these presumptions.^ Thus, in a Texas case for polygamy, the defendant's first wife was shown to have been alive four months before the second marriage ; and after it he said she was living, — a statement which he might not have known to be true, her residence being some three hundred miles away. But the judge said that, be the real fact as it might, since he believed it so, he showed a willingness to violate the law ; ^ and this " takes away from him the opposing presumption of inno- cence. He evidently believed, at the time of the second marriage, that his wife was living, and he was warned by the witness," &c. Therefore he was properly convicted.'^ But if there had been no confession, the case would have worn a different aspect, though possibly even then a conviction might have been just. A woman in Mississippi petitioned for dower as the widow of a man de- ceased. Her claim was resisted on the ground that at the time of the marriage he had a wife in Georgia. It was proved that 1 Greenstorough v. Underhill, 12 Vt. d. Cooper, 5 Rich. 452 ; Canady u. George, 604. 6 Rich. Eq. 103. 2 Northfield v. Plymouth, 20 Vt. 582, 5 <■ ^f^ for example," said Lush, J. in 590. See also Lapsley v. Grierson, 1 H. L. Reg. v. Lumley, Law Rep. 1 C. C. 196, Gas. 498, 505; Sueed v. Ewing, 5 J. J. 198, "it were proved that he was in good Mar. 460, 492, 22 Am. D. 41 ; Starr v. health on the day preceding the second Peck, 1 Hill, N. Y. 270; Van Buskirk u. marriage, the inference would be strong. Claw, 18 Johns. 346; Yates";;. Houston, almost irresistible, that he was living on 3 Tex. 433 ; Cameron v. S. 14 Ala. 546, the latter day, and the jury would in all 48 Am. D. 111. probability find that he was so. If, on the ^ Some cases further illustrative are other hand, it were proved that he was Reg. D. Jones, 11 Q. B. D. 118; WiUiams then in a dying condition, and nothing V. Williams, 63 Wis. 58, 53 Am. R. 253 ; further was proved, they would probably McCaffrey v. Benson, 38 La. An. 198 ; decline to draw that inference. Thus the Blaisdell v. Bickum, 139 Mass. 250. question is entirely for the jury. The law * In the following cases the presump- makes no presumption either way." tion of innocence prevailed, and it is very ^ Compare with ante, § 951. plain that the several results were just : ' Gorman v. S. 23 Tex. 646, 648, 649. Yates c. Houston, 3 Tex. 433; Chapman 414 CHAP. XXXI.J THE PRESUMPTIONS AND THEIR EFFECT. § 955 four years before the marriage he was living with a woman whom he treated as his wife ; and that subsequently, in the presence of this second wife, he said his first was living. Yet the second marriage was held to be good. Said Fisher, J. : " The fact that the deceased was living, in 1844, with a woman believed to be his wife, is no evidence that she was living on the 6th of Decem- ber, 1848. The marriage having been solemnized according to the forms of law, every presumption must be indulged in favor of its -validity. The statement of Rawls [the husband], while it could have been used as evidence against him in a proceeding in which he was directly interested or could be affected, cannot be used to the prejudice of the petitioner. By consummating the mar- riage, he admitted that he could then legally enter into the alliance. Tlie statement may have been true that the first wife was then living ; and still it would not necessarily follow that she was in a legal sense his wife, as the parties may have been legally divorced." * § 955. At Time of Suit. — In conclusion of this sub-title, if, when the suit is brought,, more than seven years have elapsed since the absent person was last heard of, there is strictly no conflict of presumption with presumption. Without calling in the presumption of innocence, he is now to be deemed dead. It is not now, therefore, pressing the presumption of innocence very far to place the time of the death near that of the disappearance, instead of leaving it to vibrate in uncertainty between such dis- appearance and the tod of the seven years.^ 1 Hull V. Rawls, 27 Missis. 471. And or September, 1776, about a year from the see Myatt v. Myatt, 44 Ul. 473. Daue time when her former husband was last reports an old Massachusetts case, per; known to be alive. There was a verdict haps hardly reconcilable with the cases and judgment for the defendant. " The stated in the text. It was a suit for dower court," says the reporter, " held that all by a woman claiming to be the widow of her connections with Welmau were adul- one Stephens, and it was resisted on the terous, and her marriage with him totally ground that she had forfeited her dower void ; and that she clearly lost her dower by adultery with one Welman. The suit in Stephens's estate bv these illegal con- bemg m 1789, it appeared that in April, nections with Welman." Mass. S. J. 1775, she and Stephens were living to- Court, Nov. T. 1789, Welman v. Nutting, gether at Salem as husband and wife, that 2 Dane Abr. 305. For a modern Massa- he sailed on a voyage for the West Indies, chusetts decision on the presumption of was shipwrecked, and with his crew taken death in such cases, see Kelly v. Drew, 12 up and carried to Charleston, South Caro- Allen, 107, 90 Am. D. 138. It is now lina. In September of the same year, in- held in Massachusetts that elopement formation came that he was enlisted in and living in adultery do not bar dower, the South Carolina army. In the Febru- Lakin v. Lakin, 2 Allen, 45. ary following she went to keep Welman's 2 -^^^ illustration, Cooper v. Cooper, 86 house, and was married to him in August Ind. 75. 415 § 957 EVIDENCE OF MAREIAGE. [BOOK IV. V. The Creneral Presumption favoring Marriage. § 956. Doctrine defined. — This presumption, expressed in the maxim Semper prcesumitur pro matrimonio, is spoken of in an early chapter.^ Every intendment of tlie law leans to matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proofs, the law raises a strong presumption of its legality, — not only casting the burden of proof on the party objecting,^ but requiring him throughout, in every particular, to make plain, against the constant pressure of this presumption, the truth of law and fact that it is illegal and void. So that this issue cannot be tried like the ordinary ones, which are independent of this special presumption. And the strength of the presumption increases with the lapse of time through which the parties arecohabiting as husband and wife.^ It being for the highest good of the parties, of the children, and of the community, that all intercourse between the sexes in form matrimonial should be such in fact, the law, when administered by enlightened judges, seizes upon all probabilities, and presses into its service all things else which can help it, in each partic- ular case, to sustain the marriage, and repel the conclusion of unlawful commerce. For example, — § 957. Special License. — In a case before the House of Lords on appeal from Ireland, the question was whether there had been a special license for the marriage. The parties had long^ cohab- ited unmarried, apparently as husband and wife. They had issue, and more was expected ; so they determined to be married. This was in the Isle of Man ; and the local marriage act declared void all marriages celebrated in any other place than the parish church dr chapel of the parties, unless they had obtained a special license under the hand and seal episcopal of the bishop. This marriage 1 Ante, § 77. O'Brien, Milward, 32^, 333 ; Maxwell v. 2 Ante, § 946-948. Maxwell, Milward, 290 ; Else v. Else, » Piers V. Piers, 2 H. L. Cas. 231 ; Sas- Milward, 146, 151 ; 2 Dane, Abr. 297 ; try Velaider Aronegary v. Sembecutty Smith v. Huson, 1 Phillira. 287, 294 ; Did- Vaigalie, 6 Ap. Cas. 364, 372 ; De Thoren dear v. Paucit, 3 Phillim. 580 ; Rogers V. Attorney-General, 1 Ap. Cas. 686, 690; Ec. Law, 2d ed. 631, note; Hubback on Hynes u. McDermott, 91 N. Y. 451, 459; Succession, 262; Wilkinson o. Gordon, 2 Teter v. Teter, 101 Ind. 129, 51 Am. R. Add. Ec. 152, 2 Eng. Ec. 257, 260; Ward 742; Steadman v. Powell, 1 Add. Ec. 58, v. Dulaney, 23 Missis. 410; Caujolle v. 2 Eng. Ec. 26, 30; Catterall v. Sweetman, Perrie, 26 Barb. 177; Wilkie v. Collins, 1 Rob. Ec. 304, 310, 321 ; Legeyt v. 48 Missis. 496. 416 CHAP. X2XI.] THE PRESUMPTIONS AND THEIR EFFECT. § 959 was in their private house, and the objection to it was that there had been no special license. There was no record of such license ; but this seemed not conclusive, for it was shown that the records had been inaccurately kept. The bishop testified, in unequivocal terms, to his clear recollection of the parties, and to his belief that he had granted no such license ; and he stated that he should have given none to those parties if applied to, since, as they had notoriously lived together in an illicit connection, there ought to be a public celebration of the marriage to show the cliange in the character of their cohabitation. Yet the facts to which he thus testified had occurred many years before. The Lords, overruling the decision of tlie Chancellor of Ireland, sustained the marriage ; because it was possible, after all, that the bishop was mistaken, or that a special license had been granted a year before the mar- riage by his predecessor in ofhce, and not recorded.^ § 958. Further of the Doctrine. — This doctrine explains why, as between the two presumptions of innocence and life, the law prefei's the one wliich makes the marriage good.^ It extends through tlie entire law of marriage, and casts its weight bene- ficially into the balance when other considerations are conflict- ing, or their effect is doubtful. § 959. The Doctrine of this Chapter restated. Persons dwelling together in apparent matrimony are presumed, in the absence of any counter presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and that if the parties were not what tliey thus hold themselves out as being, they would be living in the constant violation of decency and of law. And because mar- riage is the highest public interest, this presumption is stronger and less easily overtlii-own than the other and ordinary presump- tions of fact. If a ceremony of marriage appears in evidence, it is presumed to have been rightly performed, and to have been preceded by all the needful prehminaries. If one of tlie parties had before been married, there is now a presumption of great 1 PiersD.Piers, 2H. L. Cas. 331. And fords, 3 Wal. 175, on facts somewhat see particularly the remarks of Lord similar. Campbell, p. 379-381. Consult, in con- 2 Ante, § 952, 953. nection with this case, Blackburn v. Craw- VOL. I. — 27 ^Y^ § 959 EVIDENCE OF MARRIAGE. [BOOK IV. strength that the partner in such former marriage is dead. Yet if such partner is shown to have been living shortlj"^ before this second marriage transpired, the presumption of life will be in conflict with that of the validity of the marriage, whereupon all the circumstances should be made to appear, and the fact be de- duced from the entire evidence as operated upon by these rules. An absence of the standard period of seven years will not now be required to make the second marriage good, because the seven- years presumption of life is weakened or overcome by that of the validity of tlie second marriage. The exceptions to these propo- sitions need not here be repeated. 418 CHAP. XXXII.] COHABITATION ILLICITLY BEGUN. § 961 CHAPTER XXXII. SPECIALLY OF COHABITATION ILLICITLY BEGUN. § 960. Introduction. 961-963. Preliminary Distinctions. 964-976. Where Marriage good without Formalities. 977-984. Where not good. 985. Doctrine of Chapter restated. § 960. How Chapter divided. — We shall consider, I. Prelimi- naiy Distinctions ; then the question as to, 11. How where Mar- riage is good without Formal Solemnization ; III. Where Formal Solemnization is essential to Marriage. I. Preliminary Distinctions. § 961. Diversities of Fact — Law. — If parties enter upon a cohabitation known by them to be meretricious, the presumption of innocence, which is the principal one of the last chapter, fails,^ and until a change appears or is presumed, it will not establish in evidence a marriage. But if in ignorance of a nullifying im- pediment or want of form, they desiring matrimony believe them- selves to be married, then they learn the facts and the way to matrimony is open, the presumption of innocence remains to work out its consequences the same as explained in the last chapter. If they die without knowledge either of the impediment or of its removal, and the law of the place requires a formal solemnization of marriage to render it valid, the proof fails. If, where they dwell, consent alone makes matrimony, their mutual matrimonial wish and cohabitation continuing, the law on the removal of the impediment holds them to be married, and the question does not pertain to the department of evidence.^ Thus the consequences may vary both with the facts and with the differing marriage laws. 1 Ante, § 954. looking the true principle, have occasion- ^ A question upon which judges, over- ally stumbled. 419 § 963 EVIDENCE OF MARRIAGE. [BOOK IV. Tlie neglect of these and other like distinctions has wrought in our books great confusion, which it is the purpose of this chapter to remove. Further as to — § 962. Diverse Marriage Laws. — Tiie question is not the same where formalities are essential to valid marriage as where it is constituted by a mere present consent. In the words of Hubback : " All evidence must vary with the nature of the fact to be proved ; and the fact under discussion changes with the formalities which by the law of the time and country were required in the construc- tion of marriage ; and the proof is further affected by the greater or less tendency of the attendant formalities to generate and pre- serve evidence of the transaction. For these reasons the evidence of an English marriage which took place before Lord Hardwicke's Act differs from that of one of a subsequent date. The possibility of the former having been contracted in a manner which should leave no written and even no extrinsic oral evidence of the fact, makes it reasonable to allow its establishment by slighter circum- stances than will be requisite to prove a more recent marriage, of which the mode of celebration in all probability created evidence of a higher character." ^ These considerations relate rather to the sufficiency of the evidence than to the proofs admissible;^ for, in general, marriage may be prima facie shown by the same evidence under all the varying modes of solemnization. In looking into the adjudications, — § 963. Law as Reason — (Things. not thought of). — We should bear in mind that the law is not a conglomeration of discordant decisions and utterances from the bench, but it is a system of rea- son and doctrine which, however evidenced by the determinations of tlie courts and the words of judges and text-writers, is a com- plete harmony within itself, independently of these externals and surroundings.^ And if, as often happens, a case is disposed of by the judges in mental oblivion of facts or principles essential to a right judgment, it should be accorded no weight in authority.* Illumining our path by these considerations, we shall find our way through this chapter not specially difficult, and the true law not doubtful. 1 Hubback on Succession, 237. And 2 Hubback on Succession, 238. see Steadman v. Powell, 1 Add. Ec. 58, 2 = Ante, § 130, 131. Eng. Ec. 26, 29 ; Northfield i^. Plymouth, * Ante, § 374, 662, 664, 674 ; Bishop 20 Vt. 582. Non-Con. Law, § 907, 908. 420 CHAP. 2XXII.] COHABITATION ILLICITLY BEGUN. § 966 II. How where Marriage is good without Formal Solemnization. § 964. Marriage not desired. — A relation or state of things once appearing is presumed to continue " until the contrary is shown, or until a different presumption is raised from the nature of the subject in question." ^ So that if marriageable parties enter into a meretricious cohabitation because preferring it to matrimony, and nothing afterward appears indicating a change of opinion or purpose, and no counter presumption arises, a continuance of this cohabitation will under no form of the marriage laws raise a pre- sumption of marriage.^ In the words of Lord Eldon, " such a connection was likely to continue illicit."^ Yet — § 965. Change. — Slight circumstances may show — the slight- est ought, within a rule considered in the last chapter,* to be pressed into this service — a change in the minds of the parties respecting their connection ; resulting in the presumption of mar- riage, though the intercourse was wilfully illicit at first.^ Thus, — § 966. Illustrated. — In a Texas case it was observed : " There is no evidence as to the character of their [the parties'] inter- course in Louisiana ; but on their emigration to Texas it assumes all the distinctive marks of the matrimonial relation, and the only argument which can be urged against the actual subsistence of the marriage relation, from and after that period, and the inno- cence of the cohabitation, must be founded on the supposition that as the intercourse was illicit at its commencement, it must have always so continued. But admitting that their original intercourse was illicit with the knowledge of both parties, it would be urging the presumption to an unreasonable extent to suppose that the unlawful character of the connection was unsusceptible of change, and that, when all legal disabilities had ceased to operate, they would voluntarily decline all the honors, advantages, and rights of matrimony, and prefer an association disgraceful to both par- ties, but peculiarly degrading to the female, and which inflicted upon their innocent offspring the stigma and penalties of illegiti- macy. Let it be admitted that this woman had knowingly wan- 1 1 Greenl. Ev. § 41 ; Eames v. Eatnes, " Bond v. Bond, cited 2 Lee, 35, 45, 41 N. H. 177. 6 Eng. Ec. 28; Hyde v. Hyde, 3 Bradf. ^ See cases cited post, § 977. 509 ; Gall v. Gall, \U N. Y. 109. And see 3 Cunninghams v. Cunninghams, 2 Rose d. Clark, 8 Paige, 574; Donnelly v. Dow, 482, 502 Donnelly, 8 B. Monr. 1 13. < Ante, § 956-958. 421 § 970 EVIDENCE OP MARRIAGE. [BOOK IV. dered from the paths of virtue, and that in the weakness of human frailtj she had originally yielded to the arts and seductions of the deceased, yet the conclusion does not necessarily follow that the latter would be unwilling to repair, as far as possible, the wrongs he had inflicted, or that the former would of choice continue in a position so humiliating. . . . The judgment which would presume that erring humanity would not repent and reform is too harsh to have a place in any beneficent system of law, and we cannot yield our assent to any such doctrine." ^ Still, — § 967. Desire for Matrimony specially improbable. — Where Spe- cial facts render improbable any desire of the parties for marriage,^ the presumption that they are married will be less easy, whether the beginning of the cohabitation was illicit or not. Thus, — § 968. Strumpet. — It is SO where the woman is shown to be a common prostitute. Yet as the wish of a man to marry her is possible, marriage will in some circumstances be inferred, even where the connection was at first illicit.^ In like manner, — § 969. "White and Black. — Marriage between a white person and a negro will be less readily presumed from cohabitation than between two of one race.* Yet even this presumption may avail.^ It will not as against a law forbidding these marriages.^ § 970. Marriage desired, yet Impediment. — If the parties desire marriage, and do what they can to render their union matrimonial, yet one of them is under a disability, — as, where there is a pi"ior marriage undissolved, — their cohabitation, thus matrimonially meant, will in matter of law make them husband and wife from the moment when the disability is removed ; and it is immaterial whether they knew " of its existence, or its removal, or not, nor is this a question of evidence.^ This doctrine is overlooked in some of the cases, but it is abundantly sustained by others, and the reasoning^ on which it rests is conclusive. Here are the mutual 1 Yates V. Houston, 3 Tex. 433, 450, ' Ante, § 355 and note. 451, opinion by Hemphill, C. J. ^ Ante, § 312, 314, 320, 321, 34.5, 354; 2 Ante, § 361. De Thoren v. Attorney-General, 1 Ap. 3 Conran v. Lowe, 1 Lee, 630, 638. Cas. 686 ; De Thoren v. Wall, 3 Scotch * Armstrong ,.■. Hodges, 2 B. Monr. Sess. Caa. 4th ser, H. L. 28; S. u. "Wbrth- 69; ante, § 361. And see Stover v. Bos- ingham, 23 Minn. 528; Teter v. Teter, 88 well, 3 Dana, 232. Ind. 494 : Blanchard v. Lambert, 43 Iowa, 5 Honey v. Clark, 37 Tex. 686 ; Bonds 228, 22 Am. R. 245. But see Hunt's Ap- V. Foster, 36 Tex. 68. See Omohundro's peal, 86 Pa. 294. And see Adams v. Estate, 66 Pa. 113. Adams, 57 Missis. 267. « Oldham v. Mclver, 49 Tex. 556. » Ante, § 130, 131. 422 CHAP. XXXII. J COHABITATION ILLICITLY BEGUN. § 972 present consent, to which not even written or spoken words are necessary,! and consummation, which is , useful in the proofs but is not necessary ,2 — more, therefore, than the law requires. Of course, — § 971. Distinctions and Cases, — If marriage is not desired, in a case of intervening impediment, the question is within the princi- ple stated at the opening of this sub-title.^ And if the parties are cognizant of something which they are aware renders them legally incapable of intermarrying, so that no consequences can follow any pretence of being husband and wife, it may not be clear in fact whether or not they desire marriage. So that in a case of this sort the judges will not always agree, nor can the future determination of a particular tribunal upon it be more than sur- mised. And when to this we add a frequent overlooking of fun- damental principles, we have abundant foundation for real or supposed discords, and for more or less palpable errors of decision. To state some of the cases, — § 972. Lapsiey v. Grierson — was decided by the House of Lords under the Scotch law, which requires no formal celebration to constitute valid marriage. The facts were that a married wo- man whose husband had gone abroad cohabited with another man without any knowledge of the former's death, or reason to think it had occurred, resulting in children, some born before and others after the husband died. Thereupon all the children were adjudged to be illegitimate, no valid marriage being presumed at any time. Said Lord Brougham : "If the death of William Paul [the absent first husband] was believed bona fide before the cohabitation, then the fact being contrary to their belief, the belief being groundless, but the cohabitation proceeding on that belief, if afterwards William Paul died, and the cohabitation continued, I might have had some difficulty in saying that this cohabitation, which was in fact ille- gal, but was founded on the bona fide belief of the death of the first husband, and of the character of man and wife being lawfully assumed by these parties, did not become licit by the death of Paul. But when I come to look into the facts of the case, I do lot think I am at all called on to consider that question." Lord 1 Ante, § 320, 321. "Consent to be Selborne in De Thoren v. Attorney-Gen- m.med persons, it matters not in what eral, 1 Ap. Cas. 686, 699. moiner expressed, nor whether expressed ^ Ante, § 315. at ill, otherwise than tacitly, rebus et 8 Ante, § 964. fads, is all that is necessary." Lord 423 § 973 EVIDENCE OF MARRIAGE. [BOOK IV. Campbell : "That, no doubt, is a very important question, but it does not arise here ; for it is clear to me that here neither of the parents did entertain that belief. There was mala fides from the beginning to the end of the pi'oceeding." ^ An obvious comment on this case is, that it proceeds from an assumption of the parties' non-desire of marriage ; yet, on a just rendering, their inability does not establish their disinclination. As all presumptions ought to be pressed into the sustaining of marriage,^ surely the long continuance of a cohabitation in perfect foi'm matrimonial miglit well be deemed to evidence the wish for matrimony. This view finds support in the later case of — § 973. Campbell v. Campbell, — before the House of Lords on appeal from Scotland. A Scotchman eloped, in England, with another man's wife. Prom first to last he treated her as his wife, and she was received by his friends and believed by them to be such. Soon after the elopement her husband died. After which event the parties cohabited in England, then thirteen years in Scotland, until the man died, they holding themselves out and being reputed as married persons. And such they were ad- judged to be, — either because an actual marriage should be pre- sumed when the impediment was removed, or because the law made them in these circumstances married.^ Lord Cranworth deemed the question to be of fact, not of law. " The law," he said, " permits them to create that relation between themselves, and whether they have done so must be decided like any other question of fact. The circumstance that they represented them- selves to be man and wife, when they knew they were not so, may reasonably be taken into account in estimating their subsequent conduct. It may neutralize the effect which would otherwise have been properly given to their subsequent cohabitation, that is, it may do so as matter of fact ; I cannot think it must do so as mat- ter of law ; and, if that be so, then all which any tribunal can do which has to deal with such a question is, to look to all the cir- \ cumstances of the case, and consider whether they do, or do not,, lead to the conclusion that the parties did contract marriage at some time after it was possible for them to marry." He deemec/ the facts to show a desire for matrimony.* " It is hard, therefor^ 1 Lapsley v. Grierson, 1 H. L. Cas. 498, = Ante, § 956-958. 506. See also Cram v. Burnham, 5 Greenl. ' Ante, § 970. 213, 17 Am. D. 218. » Ante, § 970. 424 CHAP. XXXII.j COHABITATION ILLICITLY BEGUN. § 974 to believe that, having had for above twenty-two years the daily opportunity of giving her the status which, even when she did not rightfully enjoy it, he was anxious to have it believed that she had acquired, he should not have profited by the law which put it in his power to confer it upon her," — observations which would have been equally applicable had all the cohabitation taken place in England, where formal solemnization is essential. " There is no foundation," said Lord Westbury, " for the argument that the matrimonial consent must of necessity be referred to the com- mencement of the cohabitation, nor any warrant for the appel- lant's ingenious argument that, as the consent interchanged must be referred to some particular period, which he insisted was at the commencement of the cohabitation, and therefore insufficient, the cohabitation, which continued afterwards without interruption, would warrant no other conclusion than that which would be warranted by the consent interchanged at a time when it was in- sufficient. I should undoubtedly oppose to that another, and, I think, a sounder rule and principle of law; namely, that you must infer the consent to have been given at the first moment when yoy find the parties able to enter into the contract. The conclu- sion, therefore, that I derive, and which, unquestionably, is con- sistent with the language of the cases which have been referred to, is that the consent between these parties was given, and that the marriage, therefore, in theory of law, took place, at the time when, by the death of the first husband, they became com- petent to enter into the contract," ^ — the precise docti'ine ex- plained in the foregoing sections. § 974. Cartwright v. McG-own — was decided in Illinois, a State in which marriage may be constituted by mutual consent without formalities.2 The opinion of the court is crowded with excellent doctrine, yet a little omission of " things not thought of "3 has marred the conclusion. The parties were married in the formal way in Illinois, and there they continuously afterward cohabited, and had children whom they recognized as legitimate. But the man had a living wife in Kentucky. Three years after- ward, without his knowledge, she obtained in Kentucky a divorce from him. And the Illinois Court was of the opinion that, " with- 1 Campbell a. Campbell, Law Rep. 1 ^ Ante, § 410. H. L. Sc. 182, 201, 204, 212, 215. See » Ante, § 876. O'Gara v. Eisenlohr, 38 N. Y. 296. 425 § 976 EVIDENCE OP MARRIAGE. [bOOK IV. out knowledge of the removal of the impediment," these Illinois parties to a marriage originally void " could not have intended a second marriage, or have attempted to enter into another mar- riage," — the illusion, the thing assumed to be required, contrary to what the judge knew and actually stated the law to be, that there must be some formal marrying to constitute marriage, lead- ing the judgment away from the true result. So this was held to be no marriage. The cohabitation and marriage repute, said the judge, " might very naturally and properly be referred to the fact of this apparent marriage, there being nothing to indicate to their acquaintances and neighbors that it was void. If no actual mar- riage ceremony had been sliown, then the cohabitation and repute proved might be referred to some supposed informal, common-law marriage." ^ It will doubtless occur to the reader that he never refused to receive or speak of persons as married until his recol- lections had " referred " the question to some ceremony of which he had knowledge ; and that, therefore, this idea of the learned judge is a myth. The better view has been already explained j^ it being that, to restate it somewhat less neatly than before, — § 975. Doctrine restated. — Though a Cohabitation was intro- duced by a formal ceremony of marriage, and the parties erro- neously supposed the impediment of a former marriage to have been taken away, and never had their mistake corrected, still, in localities where formal solemnization is not essential, valid mar- riage may be presumed to have occurred after the impediment was removed.^ To employ words more nicely accurate, and cover a larger ground, the living together of marriageable parties a single day as married, they meaning marriage, and the law requiring only mutual consent, makes them husband and wife ; for here are all the elements of a contract of present matrimony. And in tlie nature of this proposition, it cannot be varied by their antecedent conduct, or by their knowledge or ignorance of law or fact. § 976. Distinctions overlooked — (Differing Laws). — Largely, in considering questions pertaining to this chapter, the counsel and courts have overlooked the true distinctions, thereby rendering the cases valueless in authority.* Among the things thus overlooked 1 Cartwright v. McGown, 121 111. 388, General, 1 Ap. Gas. 686. And see Blan- 2 Am. St. 105, 111, 112. chard v. Lambert, 43 Iowa, 228, 22 Am. 2 Ante, § 970 R. 245. 8 Ante, § 970 ; De Thoren v. Attorney- * Ante, § 963. 426 CHAP. XXXII.J COHABITATION ILLICITLY BEGUN. § 978 are the differing laws and their resulting consequences, as bring- ing the question within the present or the next sub-title. Thus, — III. Where Formal Solemnization is essential to Marriage. §977. Illicit Beginning — (Vague Proposition). — In many of the cases the proposition is laid down in effect, though expressed in varying words, that marriage cannot be presumed from cohab- itation and repute when the cohabitation is shown to have been illicitly begun, — the diverse sorts of fact and of law not being taken into the account.^ And sometimes the judges seem to go so far as to require, under every form of law, proof in these cir- cumstances of an actual marriage solemnized with some sort of ceremony.^ The doctrine thus, and in various other abstractly erroneous terms expressed, may be just when interpreted in con- nection with particular facts in proof ;^ but unconnected with what is special in the facts, it is practically inaccurate and mis- leading, whether applied under the marriage laws of this sub-title or under those of the last.* § 978. Actual Marriage presumed. — Both in just principle, and by the general concurrence of the authorities, since a presumption does not necessarily imply actual belief of the thing presumed, and since all presumptions are to be pressed into the sustaining of marriage even against probabilities,^ a jury may in a proper case infer a fact of marriage celebrated after the death of the former matrimonial partner, though there was no direct proof of it, and even though there was a strong probability that it did not really transpire.® To illustrate, — 1 Rose V. Eose, 67 Mich. 619 ; Williams other cases, De Thoren ^. Attorney-Gen- f. Williams, 46 Wis. 464, 32 Am. R. 722; eral, I Ap. Cas. 686, 690; S. v. Worth- Williams V. S. 44 Ala. 24 ; S. u. Whaley, ingham, 23 Minn. 528 ; Cunninghams v. 10 S. C. 500; Cargile v. Wood, 63 Mo. Cunninghams, 2 Dow, 482 ; Bond i-. Bond, 501 ; Foster v. Hawley, 8 Hun, 68 ; Bar- cited 2 Lee, 35, 45, 6 Eng. Ec. 28 ; Taylor num w. Barnnm, 42 Md. 251 ; Goldbeck w. v. Taylor, 2 Lee, 274, 6 Eng. Ec. 124; Goldbeck, 3 C. E. Green, 42 ; Decker v. Maxwell o. Maxwell, Milward, 290 ; In re Morton, 1 Redf. 477; ' Physick's Estate, Taylor, 9 Paige, 6U, 615; Hyde «. Hyde, 2 Brews. 179; Jones w. Jones, 45 Md. 144; 3 Bradf. 509; Ferric v. The Public Ad- Hunt's Appeal, 86 Pa. 294. ministrator, 4 Bradf. 28 ; Badger i^. Bad- 2 Reading Fire Ins. &c. Co.'s Appeal, ger, 88 N. Y. 546, 42 Am. R. 263. 113 Pa. 204, 57 Am. R. 448; Cartwright 6 Ante, § 927, 956-958. V. McGowu, 121 III. 388, 2 Am. St. 105, 6 Penton v. Reed, 4 Johns. 52, 4 Am. ante, § 974. D. 244 ; Rose v. Clark, 8 Paige, 574 ; Don- 3 Bishop Non-Con. Law, § 1320-1326. nelly v. Donnelly, 8 B. Mo'nr. 113 ; Van * The reader may compare, among Buskirk y. Claw, 18 Johns. 346; North «. 427 § 980 EVIDENCE OP MARRIAGE. [BOOK IV, § 979. Instances. — Where a woman had formally married be- lieving her husband to be dead, and, on his returning, still con- tinued to cohabit under the second marriage, and kept it up for several years after he really died, — a second marriage after such death was presumed.^ And in another case, where a married man, knowing his wife to be alive, entered into a form of marriage with another woman, who did not know of the impediment, and con- tinued the cohabitation under this second marriage until after the death of the first wife, — a marriage after such death was in- ferred.^ These decisions were all or chiefly under laws requiring no formal solemnization to make marriage valid.^ Yet their appli- cability to the other form of the laws seems complete ; as — § 980. In England. — There is an English case, decided in the King's Bench by excellent judges, clearly and forcibly illustrating this doctrine. Minors were married under circumstances show- ing it impossible they should have had the consent of parents, without which the marriage, celebrated in the way it was, must have been void under the marriage act. When the young man became of age, his wife (for so she was afterward held to be) was lying in extremis on her death-bed, and she lived only three weeks. Yet the jury inferred a formal marriage, celebrated during, this brief, closing period of her last sickness, and the court de- clined to set aside their verdict. " In a hard action," said Lord Kenyon, C. J., " where there is something on which the jury have raised a presumption agreeably to the justice of the case, the court will not interfere by granting a new trial, where the objection does not lie in point of law. [Therefore there was no rule of law vio- lated by this finding.] ... In this case, though the first marriage was defective, a subsequent one might have taken place. ... If there were any ground of presumption, it is sufficient in a case like this. In this case the parties did not intend to elude the marriage act ; but all their friends were fully informed of and concurred in the former marriage. And I think we should ill ex- North, 1 Barb. Ch. 241, 43 Am. D. 778; .1 Fenton v. Reed, 4 Johns. 52, 4 Am. St. Newton, 25 Am. E. 665; C. y. Jackson, 11 Bush, 2 Moody & R. 503 ; Fornshill v. Murray, 679, 21 Am. R. 225 ; Oneale «. C. 17 Grat. 1 Bland, 479, 482; Woods v. Woods, 2 582; Halbrook v. S. 34 Ark. 511, 36 Am. Curt. Ec. 516, 7 Eng. Ec. 181, 183; Hill R. 17. And see Kenyon v. Ashbiidge, 35 V. Hill, 32 Pa. 511 ; S. v. Libby, 44 Me. Pa. 157 ; Langhlin v. Eaton, 54 Me. 156. 469, 69 Am. D. 115; S. v. McDonald, 25 2 Halbrook v. S. 34 Ark 511, 36 Am. Mo. 176; Fuller v. Fuller, 17 Cal. 605; E. 17. Cameron v. S. 14 Ala. 546, 48 Am. D. Ill ; 3 Ante, § 1042. 457 § 1060 EVIDENCE OP MARRIAGE. [BOOK IV. an actual marriage." ^ And plainly the facts of the particular case, or the terms of the confession, may be of a sort to give it a deeper effect. In line with which view, two years after Morris V. Miller was decided in the King's Bench, the same tribunal ex- plained it, as to this question, in the following language : " To be sure, a defendant's saying in jest, or in loose rambling talk, that he had laid with the plaintiff's wife, would not be sufficient alone to convict him in that action ; but if it were proved that the de- fendant had seriously or solemnly recognized that he Icnew the woman he had laid with was the plaintiff's wife, we think it would be evidence proper to be left to a jury, without proving the mar- riage." 2 Looking now for what may be found in the books — § 1060. Adverse. — There is some real or apparent authority for a more or less wide dissent, in criminal cases, from the fore- going expositions.^ Thus, in Massachusetts* (before a statute corrected the error), in Connecticut,^ in New York,^ in Michigan,'^ and in Minnesota,* the prisoner's confessions have been adjudged either inadmissible or insufficient to prove the fact of marriage in indictments. But, said Parker, J., in New York : " It has not been decided in this State that confessions of the marriage are not admissible, but that they are insufficient to prove the fact. I do not see upon what principle they can be excluded ; and though insufficient of themselves to prove marriage, even when aided by proof of cohabitation and reputation, yet they may be important evidence, and I think they are in all cases competent." Accord- ingly, in tlie case before him the confessions were admitted ; but the verdict, rendered against the prisoner, was set aside because their weight in evidence was too slight, though there was proof also of matrimonial cohabitation and reputation.^' 1 Forney v. Hallacher, 8 S. & R. 159, further as to this question, Gaines v. Relf, 160, opinion by Gibson, C. J., 11 Am. D. 12 How. U. S. 472. 590. * C. V. MofEat, 2 Dane Abr. 296 ; C. o. 2 Rigg V. Curgenven, 2 Wils. 395, 399. Littlejohn, 15 Mass. 163. See also Fornshill v. Murray, 1 Bland, ^ g, „_ Roswell, 6 Conn. 446. 479, 482 ; Warner v. C. 2 Va. Cas. 95. " P. v. Humphrey, 7 Johns. 314 ; And see, in general, of proving the mar- Steers's Case, 2 City H. Rec. 111. riage in these cases, Birt a. Barlow, 1 ' P. w. Lambert, 5 Mich. 349, 72 Am. Doug. 171 ; Heramings v. Smith, 4 Doug. D. 49. 33 ; Catherwood v. Caslon, Car. & M. 431, ^ g. „. Timmens, 4 Minn. 325. 13 Law J. N. s. Exch. 334. 9 Gahagan v. P. 1 Par. Cr. 378. And s Reg. V. Flaherty, 2 Car. & K. 782; see Colem9,n's Case, 6 City H. Rec. 3; P. V. Lambert, 5 Mich. 349, 72 Am. D. 49; Phelan's Case, 6 City H. Rec. 91. S. V. Timmens, 4 Minn. 325. And see 458 CHAP. XXXIV.] FACT OP MARRIAGE. §1062 § 1061. 'Weight. — Something of the weight of the confession, special to the action for criminal conversation, has already been said.^ Likewise in criminal cases its weiglit will depend on its particular nature and the circumstances. It may be worthy of little or no regard ; or, if serious, and uttered with evident knowl- edge, it may itself be sufficient.^ If " made without consideration of the consequences, and palpably for otlier purposes," confessions of this sort " are," observes East, " scarcely deserving of that name in the sense in whicla acknowledgments are received as evidence ; more especially if made [in a case of polygamy] before the second marriage, or upon occasions when in truth they cannot be said to be to the party's own prejudice, nor so conceived by him at the time." ^ § 1062. Accompanying Tokens. — A confession may derive spe- cial weight from being accompanied by some visible token. So it was where, on an indictment for polygamy, the prisoner was shown to have backed his assertion of tlie prior marriage by pro- ducing a copy of a proceeding against him in a Scotch court, the 1 Ante, § 1059. 2 C. V. Muitagh, 1 Ashm. 272, 275; Wolverton «. S. 16 Ohio, 173, 47 Am. D. 373 ; Eeg. v. Flaherty, 2 Car. & K. 782. 8 1 East, P. C. 471 ; Reg. v. Newton, 2 Moody & R. 503. Said Daggett, J. deliver- ing the opinion of the majority of the Connecticut Court, rejecting confessions : " The cohabitation of persons as husband and wife without any marriage is too fre- quent to need comment ; and confessions of marriage in all such cases, whether a marriage in fact has taken place or not, may be expected, to justify the conduct and screen the offenders from censure and punishment. Unlike confessions of facts in ordinary cases, made against one's interest, these are not unfrequently prompted from the most selfish motives. Besides, a man or woman may verily sup- pose a marriage to have been consum- mated, when no lawful marriage ever took place. Ignorance of the law on this subject may be presumed in many cases, and confessions of a marriage made with- out a knowledge of the requisites to con- stitute it such," &c. S. I'. Roswell, 6 Conn. 446, 451. And see West v. S. 1 Wis. 209. These observations show how important it is to scrutinize the confessions ; but they do not, it is •submitted, justify their exclu- sion. " It is true," said Birchard, C. J. in the Ohio Court, "that confessions of marriage may be made by persons living in a state of fornication, with a view to secure the offenders from pnblic censure, and thus make a case unlike the ordinary cases of confession against one's interest. This, in our opinion," he added, "fur- nishes no reason for rejecting the evi- dence as incompetent. It shows rather that the confession thus made should not be relied on, and held by the jury when unsupported suificieut to work a convic- tion. In such a case, and indeed in all cases where the confession of a party is given in evidence, its force must depend upon the circumstances under which it is made." Wolverton v. S. 16 Ohio, 173, 177, 47 Am. D. 373. As to the confessing party's possible ignorance of the mar- riage law, this objection, if valid, would exclude equally the testimony of non- professional witnesses wlio were present at the nuptials. But by all opinions their evidence is admissible. Still, if the con- fession is only of the marriage in general terms, this consideration may properly be of weight with the jury. See Reg. v. Sim- monsto, 1 Car. & K. 164. 459 § 1064 EVIDENCE OP MARRIAGE. [bOOK IV. alleged first marriage having been in Scotland, for having im- properly contracted it, while yet it was good by the Scotch law.^ § 1063. In Conclusion — of the chapter, to borrow the language of a learned New Jersey judge, " the rules of evidence depend upon the nature of the case and the facts which are to be proved ; and the principles to be observed in admitting or rejecting testi- mony must, in some measure, be accommodated to the particular circumstances whicli are in issue, taking care, however, to adhere, as far as possible, to general rules of law." ^ . § 1064. The Doctrine of this Chapter restated. As explained in preceding chapters, the ordinary and sufficient evidence of marriage is that the parties live together as husband and wife in such way as to create the reputation of being mar- ried ; and if in fact there is no marriage, it devolves on the one objecting to show it. This comes from a presumption of their innocence in the cohabitation. But wlien, as in the husband's action for a criminal conversation with the wife, and in the crim- inal prosecution for polygamy, for incest, for adultery, and some other offences, the marriage is an element in the proofs of the defendant's guilt, it cannot be inferred from the .presumed inno- cence of , the cohabitation. For here presumption rebuts presump- tion, and here it is impossible that a presumed innocence shall be adequate proof of alleged guilt. Therefore, in cases of this sort, and in all others in which presumption thus conflicts with presumption, resort must be had to evidence of some other class. And the party setting up the marriage may select such other class as he can render practically available. It may be circum- stantial or direct, or it may consist of confessions, or it may be partly of one sort and partly of another^ ' This is termed, in law phrase, proving a marriage in fact, or a fact of marriage. 1 Traman's Case, 1 Bast, P. C. 470. ^ Kinsey, C. J. in Peppinger v. Low, 1 And see S. v. Libby, 44 Me. 469, 69 Am. Halst. 384. T>. 115. 460 CHAP. XXXV.] SPECIALLY OP FOREIGN MARRIAGE. § 1066 CHAPTER XXXV. SPECIALLY OF THE PROOFS OF FOREIGN MARRIAGE. § 1065-1070. Introduction. 1071-1084. Presumptions as to Foreign Law in General. 1085-1112. Non-presumptive Proofs of Foreign Law. 1113-1120. Presumptions as to Foreign Marriage. 1121-1136. Non-presumptive Proofs of Foreign Marriage. 1137. Doctrine of Chapter restated. § 1065. Difficulties of Subject. — When, as in most civil issues, marriage is proved by cohabitation and repute,^ the evidence of a foreign marriage is ordinarily the same as of a domestic one ; for the domestic cohabitation and repute suffice. But when, within principles stated in preceding chapters, a fact of marriage must be shown, or when the particulars of its creation however unneces- sarily appear,^ so that the foreign law becomes an inseparable ele- ment in the question, difficulties and uncertainties abound. For, in part, the presumptions and proofs of the foreign law are among the most occult things in our jurisprudence. Hence the necessity of the opening elucidations of this chapter. § 1066. Foreign Law as Fact. — The general doctrine that for- eign laws are to be proved as facts in our tribunals (whether to the court or jury we shall consider further on 3) whenever any question concerning them arises, is plainly laid down in all our English and American books.* But the applications and limita- tions of this doctrine are far from plain. 1 Ante, § 932, 942, 943. B. Monr. 306; Cook v. Wilson, Litt. Sel. 2 Ante, § 928, 929. Cas. 437 ; Baptiste u. De Volunbrun, 5 8 Post, § 1086-1091. Har. & J. 86 ; Chnrcli v. Hubbart, 2 * Story Confl. Laws, § 637; Peck ». Cranch, 187; Ramsay v. McCanley, 2 Tex. Hibbard, 26 Vt. 698, 62 Am. D. 605; 189; Owen y. Boyle, 15 Me. 147, 32 Am. Beal u. Smith, 14 Tex. 305; Bryant v. D. 143; Martin v. Martin, 1 Sm. & M. Kelton, 1 Tex. 434; Frith w. Sprague, 14 176; Haven v. Foster, 9 Pick. 112, 19 Mass. 455; Chouteau v. Pierre, 9 Misso. Am. D. 353; Beauchampt;. Mudd, Hardin, 3; Kite v. Lenhart, 7 Misso. 22; Leak o. 163; Stevens v. Bomar, 9 Humph. 546; Elliott, 4 Misso. 446 ; Tyler v. Trabue, 8 Chumasero v. Gilbert, 24 111. 293 ; Rape. 461 § 1071 EVIDENCE OF MARRIAGE. [BOOK IV. § 1067. Distinction whether Law wholly Foreign or not. — That a law prevails abroad does not make it foreign within this doc- trine, if it prevails also with us. For example, — § 1068. Law of Nations. — Our courts, and those of every other country, take cognizance of the law of nations ; since it binds equally the whole family of nations.^ And — § 1069. Our Law recognizing the Foreign. — There are circum- stances in which our law so affirmatively recognizes the foreign that our courts notice it judicially. In an attempted elucidation of these and other kindred questions, — § 1070. How Chapter divided. — We shall consider, I. The Pre- sumptions as to what is the Foreign Law chiefly in Causes not Matrimonial ; II. How the Foreign Law is proved otherwise than by Presumption ; III. The Presumptions as to a Foreign Marriage ; IV. The Non-presumptive Proofs of a Foreign Marriage. I. The Presumptions as to what is the Foreign Law chiefly in Causes not Matrimonial. § 1071. V/hen not Alleged or Proved. — Since foreign laws are treated in our courts as facts,^ it would seem to follow that every allegation of a foreign transaction should be accompanied by that of the foreign law, and the two should be proved together, in de- fault whereof the party would be denied redress. Yet the strict enforcement of this rule would create immense trouble for liti- gants ; and all who are acquainted with the doings of our courts are aware that it is common practice, not indeed extending to every sort of case,^ for parties to maintain transitory suits for what occurred abroad, without alleging or proving the foreign law, or the particular provision of it which was violated.* And as law of some sort must pervade every place,^ it is in many V. Heaton, 9 Wis. 328, 76 Am. D. 269 ; 2 Ante, § 1066. Mostyn v. Fabrigas, Cowp. 161, 174; Nel- ' Ramsay v. McCanley, 2 Tex. 189; son ?'. Bridport, 8 Bear. 527 ; Pomeroy v, Eoots v. Merriwether, 8 Bush, 397. Ainsworth, 22 Barb. 118 ; Uhler v. Semple, * Benham v. Mornington, 3 C. B. 133 ; 5 C. E. Green, 288; Babcock v. Babcock, The M. Moxham, 1 P. T>. 107; Mostyn v. 46 Mo. 243 ; Mobile, &c. Rid. v. Whitney, Fabrigas, Cowp. 161 ; Robert v. Harnage, 39 Ala. 468 ; Evans v. Reynolds, 32 Ohio 6 Mod. 228; Palliser's Case, stated, Cowp. St. 163; Hackettw. Potter, 135 Mass. 349; 181; Rafael v. Verelst, 2 W. Bl. 1055; S. V. Moy Looke, 7 Or. 54 ; post, § 1085. General Steam Nav. Co. v. Gnillou, 11 M. 1 Austria v. Day, 2 Gif. 628 ; s. c. on & W. 877 ; Collett v. Keith, 2 East, 260. appeal, 3 De G. F. & J. 217. « 1 Bishop Crim. Law, § 5-9. 462 CHAP. XXXV.J SPECIALLY OP FOREIGN MARRIAGE. § 1073 circumstances no flagrant violation of just principle for a judge before whom a foreign transaction is shown, to entertain some presumption as to what the foreign law is, instead of denj-ing re- dress for a palpable wrong. And — § 1072. Sort of Presumption. — In reason, the sort of presump- tion would vary with the sort of case ; as, if the thing were malum in se, like a battery, the foreign law might be presumed to be the same as ours, but not if malum prohibitum, like the unlicensed sale of a drug. For which reason, or with no reason, the courts have laid down all varieties of conflicting presumptions as to what is the foreign law, commonly without any apparent consciousness that they were travelling in a tangle. And the author would leave his readers in an equal tangle should he here set down only what the judges have said. Unhappily the subject does not in its na- ture admit of exact rule, so that of necessity he will expose him- self to the accusation of vagueness and uncertainty, however the reader may concur in the general proposition, when attempting to present the — § 1073. Doctrine defined. — Since presumption is a deduction from the common observation that two particular things ordina- rily attend each other, so that when one appears we infer the other's presence,^ and since observation has shown that the fun- damental right and justice are the same in the diffeiing systems of jurisprudence, the court will presume that a rule of such riglit and justice, recognized in the domestic law, prevails equally in the foreign, — thus casting the burden of proof on the litigant who claims the foreign law to be otherwise. Beyond which, since the courts take judicial notice of such historical events as are of uni- versal knowledge and concern,^ they will take cognizance of the fact that our common law is the foundation of the jurisprudence of sister States, — leading to the presumption that those of its prin- ciples which are not in conflict with fundamental right and jus- tice prevail in those States,^ thus casting the burden of proof on the litigant who assumes the contrary. And when simply a tran- sitory right is claimed in a cause, and it appears to have origi- nated in another State or country, the court will apply this sort of presumption to it, though there is no allegation of the foreign 1 Ante, § 927. Bodley, Hardin, 104 ; Bell v. Barnet, 2 2 Post, § 1080; 1 Greenl. Ev. § 5 ; J, J. Mar. 516. Payne v. Treadwell, 16 Cal, 220; Hart v. » Reg. v. Nesbitt, 2 Dowl. & L. 529. 463 § 1075 EVIDENCE OP MARRIAGE. [BOOK IV. law, and it is not otherwise proved. To return now to the judi- cial utterances, — § 1074. Same as Ours. — Many of the cases presume the for- eign law to be the same as our own, making " ours the rule of decision." i In a New York case, Foot, J., stated the doctrine as follows : " It is a well-settled rule, founded on reason and authority, that the lex fori, or, in other words, the laws of tlie country to whose courts a party appeals for redress, furnish in all cases prima facie the rule of decision ; and if either party wishes the benefit of a different rule or law, as, for instance,, the lex domicilii, lex loci contractus, or lex loci rei sitce, he must aver and prove it. The courts of a country are presumed to be ac- quainted only with their own laws ; those of other countries are to be averred and proved like other facts of which courts do not take judicial notice ; and the mode of proving them, whether they be written or unwritten, has been long established."^ But if the common course of things is the ground of presumption,^ this rule must be limited to that part of the law of the respective States which consists of fundamental right and justice ; * because only so far does observation show the laws of different countries to be harmonious. Hence, — § 1075. Minority and Majority. -^ As the precise age at which minority terminates in majority is necessarily technical, and the laws of the various countries differ upon it, tliere is no clear ground for dissent from an earlier decision in the same State wherein the foregoing observations were made. In a suit upon a promissory note, executed in Jamaica by a defendant shown to have been under the age of twenty-one years, it was held that in the absence of any proof as to the law of Jamaica, the plaintiff could recover ; though, by the common law, which was the law of the court, the fact of minority flius appearing would have de- 1 Bean v. Briggs, 4 Iowa, 464, 468 ; McLear v. Succession of Hunsicker, 29 Allen V. Watson, 2 Hill, S. C. 319, 322; La. An. 530; Smith v. Gould, 4 Moore Kennick v. Chloe, 7 Misso. 197 ; Thurston P. C. 21 ; Sharp v. Sharp, 35 Ala. 574 ; V. Percival, 1 Pick. 415; Woodrow v. Seahorn v. Henry, 30 Ark. 469 , Hall v. O'Conner, 28 Vt. 776 ; P. v. Lambert, 5 Pillow, 31 Ark. 32 ; Marsters v. Lash, 61 Mich. 349, 72 Am. D. 49 ; Rape v. Heaton, Cal. 622 ; Laird u. S. 61 Md. 309 ; Chapiu 9 Wis. 328, 76 Am. V>. 269 ; Hill v. Grigs- v. Dobson, 78 N. Y. 74, 34 Am. R. 512 ; by, 32 Cal. 55 ; Farwell v. Harris, 12 La. Neese v. Farmer's Ins. Co. 55 Iowa, 604. An. 50; Bemis v. McKenzie, 13 Fla. 553, ^ Monroe v. Douglass, 1 Seld. 447, 452. 558 ; Stokes u. Macken, 62 Barb. 145 ; ^ Ante, § 927. Brown v. Gracey, I). & R., N. P. 41, note ; * Ante, § 1072. S. V. Patterson, 2 Ire. 346, 38 Am. D. 699 ; 464 CHAP. SXXV.] SPECIALLY OP FOREIGN MARRIAGE. §1078 feated the suit.^ And the like has been maintained in England, where the place of contract was Scotland.^ And still if in such a case the maker of the note was so young as by common observa- tion to be incapable of so serious a transaction, reason would dic- tate that the foreign law should be presumed not to bind him thereto. Again, — § 1076. Presumed Valid. — Contracts 3 and judicial proceed- ings,* had abroad, have, on principles obviously just, been pre- sumed valid, in the absence of contrary proofs, though they would not be so by the law of the forum. Tor example, — § 1077. Usury. — If a foreign contract is claimed to be void as usurious, the foreign law must be shown, — it not being sufficient that it would be so by the domestic^ Agaiu, — § 1078. Foreign Statutes — (Statute of Frauds). — It cannot be just to assume that our entire body of statutory law prevails in any other State or country ; ^ for it would be contrary to com- mon observation. Therefore, where, in an Indiana case, the statute of frauds was set up in defence, and the cause of action arose in Pennsylvania, and there was no proof of the Pennsyl- vania law, the court presumed the common law to be in force 1 Thompson v. Ketcham, 8 Johns. 190. And see Owen v. Boyle, 15 Me. 147, 32 Am. D. 143. Query whetlier this is con- sistent, not only with the New York cases cited to the last section, but with other cases in the same State. Robinson v. Dauchy, 3 Barb. 20 ; Wright v. Delafield, 23 Barb. 498 ; Abell v. Douglass, 4 Denio, 305 ; White v. Knapp, 47 Barb. 549 ; Stokes V. Macken, 62 Barb. 145. Of a like sort, and as sustaining the general doctrine stated in the last section, see also Legg 0. Legg, 8 Mass. 99 ; Hemphill v. Bank of Alabama, 6 Sm. & M. 44 ; Fouke V. Fleming, 13 Md. 392; McFariand v. White, 13 La. An. 394; Gautt o. Gautt, 12 La. An. 673 ; Co,k v. Morrow, 14 Ark. 603 ; White v. Perley, 15 Me. 470; Crosby V. Huston, 1 Tex. 203, which, however, compare with Ramsay v. McCanley, 2 Tex. 189. As to our interstate law, see contra. Holmes v. Mallett, Morris, 82. 2 Male V. Roberts, 3 Esp. 1 63. s Smith V. Whitaker, 23 111. 367. The words of Walker, J. were : " When suit is instituted on such an instrument made in a foreign country, or in a sister State, VOL. I. — 30 or in a territory of this government, if not repugnant to our laws, our courts will presume that the contract was made in conformity to the laws of the place of its execution, and will hold, in the absence of such a piea and proof, that the defend- ant admits the legality of the contract." p. 369. See Jones v. Palmer, 1 Dong. Mich. 379 ; Martin v. Martin, 1 Sm. & M. 176. But see Atkinson v. Atkinson, 15 La. An. 491 ; Griffin v. Carter, 5 Ire. Eq. 413. * S. V. Lawson, 14 Ark. 114 ; Lackland V. Pritchett, 12 Misso. 484. See Spann v. Crummerford, 20 Tex. 216 ; Locke v. Huliug, 24 Tex. 311. ^ Cutler V. Wright, 22 N. Y. 472; Davis V. Bowling, 19 Mo. 651 ; Kenyon v. Smith, 24 Ind. 1 1 . Compare with Thomas V. Beckman, 1 B. Monr. 29 ; Kermott v. Ayer, 11 Mich. 181 ; Desnoyer v. McDon- ald, 4 Minn. 515; Ramsay u. McCanley, 2 Tex. 189. « Forbes v. Scasnell, 13 Cal. 242 ; White V. Knapp, 47 Barb. 549 ; Sloan v. Torry, 78 Mo. 623. 465 §1081 EVIDENCE OF MARRIAGE. [BOOK IT. there, and so the special defence was overruled. ^ And still by some courts the doctrine of presuming the foreign law to be the same as our own ^ is carried even to such statutes as those now under consideration.^ A somewhat different presumption is — § 1079. Common Law. — Where the matter in suit depends on the law of a sister State and it is not proved, or on tlie con- struction of a statute shown to exist in such State and its inter- pretation there does not appear, — the course in many of our courts is to presume that the common law as far as adapted to our sit- uation and circumstances prevails there ; that is, as the writer understands it, the common law unaffected by colonial or State statutes.* But this doctrine would appear to be nowhere so abso- lutely held as to preclude exceptions and qualifications.^ xind it is not applied to tliose States which are not of common-law origin.® Further as to which, — § 1080. Historical and Governmental. — That most of our States are thus ruled by the common law, except as modified by statutes of their own, is matter of historical and governmental knowledge, whereof the courts may well take cognizance.^ In accord with this principle, the English tribunals judicially know that the com- mon law prevails in Ireland.^ But — § 1081. Among our Indians. — This reasoning would not lead a 1 Johnson u. Chambers, 12 Ind. 102. HemphiH v. Bank of Alabama, 6 Sm. & See also Titus u. Scantling, 4 Blackf. 89; M. 44; Walker v. Walker, 41 Ala. 353; Trimble v. Trimble, 2 Ind. 76. Blystone v. Burgett, 10 Ind. 28, 68 Am. - Ante, § 1074. D. 658. Contra, Owen v. Boj'le, 15 Me. 3 Bagwell V. McTighe, 85 Tenn. 616 ; 147, 32 Am. D. 143 ; Bradshaw r. May- Neese v. Farmer's Ins. Co. 55 Iowa, 604. field, 18 Tex. 21. See Lucas v. Ladew, * Shepherd v. Nabors, 6 Ala. 631 ; 28 Mo. 342 ; Cressey v. Tatom, 9 Or. 541 ; Elliott V. McClelland, 17 Ala. 206, 210; Carpenter w Grand Trunk Ry. 72 Me. 388, Connor v. Trawick, 37 Ala. 289; Griffin 39 Am. K. 340; O'Rourke v. O'Rourke, V. Carter, 5 Ire. Eq. 413; Titus v. Scant- 43 Mich. 58; Robards k. Marley, 80 Ind. ling„ 4 Blackf. 89 ; Hydrick w. Burke, 30 185; Meyer v. McCabe, 73 Mo. 236; Ark. 124 ; Copley v. Sanford, 2 La. An. Rogers v. Zook, 86 Ind. 237 ; Seyfert v. 335, 46 Am. D. 548; Kling v. Sejour, 4 Edison, 16 Vroom, 393. La. An. 128 ; Thurston v. Percival, 1 Pick. ^ And see Goodman v. Griffin, 3 Stew. 415, 417, where Parker, C. J. said, "If 160,164; High, Appellant, 2 Doug. Mich, maintenance or champerty is malum in se, 515, 529, opinion by Wing, J. apd an offence at common law, it is to be ^ Flato v. Mulhall, 72 Mo. 522. presumed without any statute that the ' Ante, §1073; Haden w. Ivey, 51 Ala. same law is in force there ; " Hinson v. 381, 384 ; 1 Greenl. Ev. § 5 ; Bank of Au- Wall, 20 Ala. 298 ; Ellis v. White, 25 Ala. gnsta v. Earle, 13 Pet. 519, 590 ; Payne v. 540 ; Reese v. Harris, 27 Ala. 301 ; Crouch Tread well, 16 Cal. 220 ; Bell v. Barnet, 2 V. Hall, 15 111. 263; Holmes v. Mallett, J. J. Mar. 516; Humph'rey v. Burnside, Morris, 82 ; Brown v. Pratt, 3 Jones Eq. 4 Bush, 215. 202 ; Crozier u. Bryant, 4 Bibb, 174; ^ Reg. v. Nesbitt, 2 Dowl. & L. 529. 466 CHAP. XXXV.] SPECIALLY OF FOREIGN MARRIAGE. § 1085 court to presume that the common law governs a nation of our Indians.^ § 1082. other Foreign Places — Quasi Foreign — (England and Dependencies). — Nor does it follow from this that our courts would pi'esume the common law to prevail in any country entirely separate from us. But within the principle above stated as to our interstate law, a learned judge observed in an Upper Canada case : " In regard to us, Ireland is, like all other countries out of England to which the jurisdiction of our courts does not extend, a foreign country. It is so in the same sense that Nova Scotia or Jamaica is. We do not judicially recognize its statute law. It must be proved to us what it is. All that we can assume is, that the common law of England is in force there, which we must take for granted until the contrary is proved, or unless the facts in the particular case before us warrant a presumption to the contrary. In this respect it stands on a footing different from countries wholly foreign to the British crown." '^ So, — § 1083. states as Quasi Foreign. — Though our States are to each other foreign,^ the same rule may well apply as between them. § 1084. Foreign Law made Ours. — Since the law of England, as it stood when our country was settled, was adopted as our own, the courts take the same cognizance of it which they do of any other domestic law. And the like rule applies to such of the Spanish, Mexican, and French laws as remain in the States where they formerly prevailed, they need not, like foreign laws, be proved.* It is the same also where one of our States has been organized by partition from another.^ n. How the Foreign Law is proved otherwise tTian hy Presumption. § 1085. Must Plead and Prove. — In cases not within the fore- going presumptions, the party who, whether plaintiff or defendant, relies on a foreign law, must both plead and prove it.^ Now, — 1 Du Val V. Marshall, 30 Ark. 230. Chouteau r. Pierre, 9 Misso. 3 ; Ott v. 2 Breakey v. Breakey, 2 U. C. Q. B. Soulard, 9 Misso, 581 ; U. S. v. Turner, 349, 355, opinion by Robinson, C. J. 11 How. U. S. 663. And see Holliday v. 5 Ripple w. Ripple, 1 Rawle, 386 ; Harvey, 39 Tex. 670. Heberd w. Myers, 5 Ind. 94; Allen v. ^ Delano u. Jopling, 1 Litt. 117, 417. Watson, 2 Hill, S. C. 319. 6 Peck „. Hibbard, 26 Vt. 698, 62 Am. ■• Farmer v. Eslava, 11 Ala. 1028, D. 605; Bean v. Briggs, 4 Iowa, 464; 467 § 1086 EVIDENCE OP MARRIAGE. [BOOK IT. § 1086. Whether Proof to Court or Jury : — Opinions differ — upon the question whether the proofs of the foreign law, like those of the foreign transaction, shall be ad- dressed to the jury, who alone are to determine what it is ; or to the court, the judge to deliver it to and instruct them on it, as he does the domestic law. Story appears to be of the latter opinion, for he says : " All matters of law are properly referable to the court, and the object of the proof of foreign laws is to enable the court to instruct the jury what, in point of law, is the result of the foreign law to be applied to the matters in controversy before . them. The court are, therefore, to decide what is the proper evidence of the laws of a foreign country ; and when evidence is given of those laws, the court are to judge of their applicability, when proved, to the case in hand." ^ To this effect also is other authority .2 A learned North Carolina judge put the question as follows : " The existence of a foreign law is a fact. The court cannot judicially know it, and therefore it must be proved ; and the proof, like all other, necessarily goes to the jury. But when established, the meaning of the law, its construction and effect is the province of the court. It is a matter of professional science ; and as the terms of the law are taken to be ascertained by the jui'v, there is no necessity for imposing on them the burden of affixing a meaning on them, more than on our own statutes. It is the office of reason to put a construction on any given docu- ment, and therefore it naturally arranges itself among the duties of the judge. It is the opinion of this court that the court below erred in not deciding the question."^ On the other hand, some appear to maintain that the proof throughout is for the jury; others, to distribute it between them and the judge.* Yet all ad- Monroe V. Douglass, I Seld. 447 ; Stephen- Evans w. Reynolds, 32 Ohio St. 163 ; Me- son V. Bannister, 3 Bibb, 369 ; Davis i>, Daniel o. "Wright, 7 J. J. Mar. 475 ; Chn- Curry, 2 Bibb, 238 ; Church v. Hubbart, masero v. Gilbert, 24 IlL 293 , Palfrey v. 2 Cranch, 187; Hempstead v. Reed, 6 Portland, &c. Rid. 4 Allen, 55; ante, §1066. Conn. 480; Owen !>. Boyle, 15 Me. 147, i Story Confl. Laws, § 638. 32 Am. D. 143 ; Martin ». Martin, 1 Sm. = Ferguson v. Clifford, 37 N. H. 86; & M. 176; Leak «. Elliott, 4 Misso. 446; Pickard v. Bailey, 6 Tost. N. H. 152; Bryant v. Kelton, 1 Tex. 434; Mason v. Territt r. WoodrufE, 19 Vt. 182; Middle- Wash, Breese, 16, 12 Am. D. 138 ; Bil- bury College v. Cheney, 1 Vt. 336; Alex- lingsley v. Dean, 11 Ind. 331; Roots v. anrter v. Torrence, 6 Jones, N. C. 260; Merriwether, 8 Bush, 397; Davis u. Wilson w. Carson, 12 Md. 54. Rogers, 14 Ind. 424; Nelson v. Bridport, s g, „. Jackson, 2 Dev. 563, £66, Rnf- 8 Beav. 527 ; Mostyn v. Fabrigas, Cowp fin, J. 161, 1 74 ; Crawford v. Witten, Lofft, 154 ; * Holman v. King, 7 Met. 384 ; Moore 468 CHAP. XXXV.J SPECIALLY OP FOREIGN MARRIAGE. § 1089 mit that in these cases as in others, the judge shall determine what evidence is to be submitted to the jury.i § 1087. In Reason — the proof of the foreign law is to the judge. Though foreign, it is still law; and by a general prin- ciple of our procedure the judge is to tell the jury what is the law of every case before them, and they are not justified in taking this question out of his hands. That the foreign law is also fact is no answer to this proposition ; for though we have no univer- sally recognized doctrine that the jury may in any case decide law, in various circumstances the judge is, by all opinions, to pass upon facts without even suffering the jury to review his decision.^ And in practical propriety it requires more legal knowledge and acumen to determine a question of foreign law, under conflicting evidence of witnesses and chaotic statutes, involving nice con- siderations of a system of jurisprudence to which no man among us is educated, than to say what is our own law. Surely to take this from the incumbent of the bench, who has presumably some ability to deal with it, and give it to the men in the jury-box, who certainly have none, is not conducive to a rightful administration of justice.^ Again, — § 1088. Analogies. — All the analogies of our legal practice indi- cate that the judge, not the jury, shall decide what is the foreign law. In other circumstances wherein the law is not judicially recognized, but is proved, the proof is directed to him, who, and not the jury, passes upon it. Thus, — § 1089. Private Statutes. — A private statute must be pleaded and proved.* But the proof is made to the judge, and he in- V. Gwynn, 5 Ire. 187 ; Ingraham v. Hart, part proceeded from misapprehensions 11 Ohio, 255; De Sobry u. De Laistre, 2 and inaccurate followiugs of nicely cor- Har. & J, 191, 219, 229, 230, 3 Am. D. rect language of eminent judges. For 535 ; Charlotte v. Chouteau, 25 Mo. 465 ; example. Lord Eldon, sitting in a jury Loring v. Thorndike, 5 Allen, 257 ; Brad- case, neatly laid down exactly what I laugh V. De Rin, Law Rep. 5 C. P. 473, have stated to be the better doctrine, as 475, 476 ; Cecil Bank v. Barry, 20 Md. follows : " The law of the country where 287, 83 Am. D. 553 ; Ferguson v. Clifford, the contract arose must govern the con- 37 N. H. 86. See Lockwood v. Crawford, tract ; and what that law is should be 18 Conn. 361. given in evidence, to me, as a fact. No 1 De Sobry v. De Laistre, supra. And such evidence has been given, and / can- see Pickard v. Bailey, supra. not take the fact of what that law is, without '' 1 Bishop Crim. Proced. § 984-989 6, evidence." Male v. Roberts, 3 Esp. 163, 1244; Jenkins v. Davies, 10 Q. B. 314, 164. Yet I have seen this case cited to 323; Bartlett w. Smith, 11 M. & W. 483 ; the proposition that the jury, not the Whitcher v. McLaughlin, 115 Mass. 167. court, is to pass upon the question of 8 It seems to me that the difficulties what is the foreign law! and mistakes on this question have in * Bishop Stat. Crimes, § 395-402. 469 1090 EVIDENCE OF MARRIAGE. [book IY. structs the jury upon it and its effect, the same as though it were a public one whereof the courts take judicial cognizance.' In like manner, — § 1090. City Ordinances, &c. — Though, in the absence of a statute providing otherwise, a city ordinance or other like by-law is to be proved, because the court does not take judicial cogni- zance of it, the doctrine is familiar that, on proof being made before the judge, he holds it valid or void, construes it, and deals with it precisely as with any public enactment.^ Now, — ' Thus, in The Priuee's Case, 8 Co. 1 a, 28 a, " it was resolved that against a gen- eral act of Parliament, or such an act whereof the judges ex officio ought to take notice, the other party cannot plead nul tiel record ; for of such acts the judges ought to take notice ; but if it be misre- cited, the party ought to demur in law upon it. And in that case the law is grounded upon great reason; for [not, the reader will perceive, that the private statute is fact whereof the jury takes cog- nizance, instead of the judge, but] God forbid, if the record of such acts [public] should be lost, or consumed by fire or other means, that it should tend to the general prejudice of the commonwealth; but rather, although it be lost or con- sumed, the judges either by the printed copy or by the record in which it was pleaded, or by other means, may inform themselves of it." "Where a private stat- ute is pleaded, if the opposite party would deny its existence, his proper plea is nul tiel record, and the issue thereon is not for the jury but for the court. Spring v. Eve, 2 Mod. 240. It is said in Bacon's Abridg- ment to be a general rule " that if a pri- vate statute be pleaded, nul tiel record may be replied ; but if the exemplification of a private statute under the great seal be pleaded (a case where the pleading car- ries with itself the conclusive record proof] , nul tiel record cannot be replied." Statute, L. 2. And see, on this ques- tion, Mr. Hargrave's note to Co. Lit. 98 b. There are doubtless circumstances wherein a private statute, like any other thing which ought ordinarily to be pleaded, may be given in evidence without plea ; as, in like manner, there are circumstances in which a foreign law may be so given in 470 evidence ; and there may be an indefinite- ness in the report of a case, and even there may have been in the minds of the judges and of counsel, as to whether the evidence was really addressed to the jury or to the judge. In Anonymous, 2 Salk. 566, where the defendant had pleaded a private stat- ute, and the plaintiff had replied nul tiel record, and the defendant had brought in the printed act to support his plea. Holt, C. J. declined to accept the evidence, and ob.served : "An act printed by the king's printers is always allowed good evidence of the act to a jun/, but [in this matter for the court] was never allowed to he a record yet." I have not found in the books any case wherein a private statute was submitted to the jury, in distinction from the judge, in any way differing from that in which a public statute might have been submitted. Possibly I have over- looked some case, though my researches have extended much further than to the authorities cited in this note. And when, ever a private statute has been pleaded and proved, or otherwise admitted before a tribunal, the judges have dealt with it precisely as they do with a public one, For an example illustrating this proposi- tion, see Eex v. Shaw, 12 East, 479. And there are many other cases. Again, if a public statute recognizes a private one, the latter becomes public law, to be judi- cially noticed by the courts. Benson v, Welby, 2 Saund. Wms. ed. 154, 155, note; Samuel v. Evans, 2 T. K. 569, 575 ; Dwar. Stat. 2d ed. 465. But it would be absurd for a court, in instructing the jury, to deal with such statute in the two cases differently. 2 Dillon Mun. Corp. 2d ed. § 353, 354 ; Bishop Stat. Crimes, § 18-26, 403-407. CHAP. XXXV.J SPECIALLY OP FOREIGN MARRIAGE. § 1095 § 1091. A Foreign Law — is precisely analogous to a private statute or by-law. As seen in a preceding chapter,^ in name only is it foreign, — the doctrine being that in the cases where it is admitted, the domestic law makes the foreign its own, and en- forces it, not as foreign, but domestic.^ That our rules of pro- cedure do not cast on the judges the heavy burden of knowing it judicially is not, it is submitted, a reason for taking from them, when proof of it is made, the right to treat it as they do all other law governing causes before them. § 1092. What Law is Foreign or not, as requiring Proof : — The Law of Nations — is not foreign law, as already explained.^ So,— § 1093. Foreign Flag and Seal. — When the executive depart- ment of one government acknowledges the national existence of another, it "therefore," in the words of Greenleaf, "recognizes, and of course the public tribunals and functionaries . . . take notice of, the existence and titles of " the other government, its flag, and its seal of State. Hence " public acts, decrees, and judg- ments, exemplified under this seal, are received as true and gen- uine, it being the highest evidence of their character." * For a like reason, — § 1094. Judgment of Sister State. — Though our States are to one another foreign,* yet as the national Constitution requires the courts of each to give full faith and credit to a judgment in another, when such judgment is pleaded in any one, its courts will take judicial cognizance of the laws of the State of its rendi- tion.^ So also, — § 1095. Foreign Law promulgated by ua. — " Where," Says Story, " our own government has promulgated any foreign law or 1 Ante, § 855. man, 1 Cranch, 1, 38. And Johnson, J. 2 Scrimshire v. Scrimshire, 2 Hag. Con. uses the like language in a South Caro- 395, 407, 4 Eng. Ec. 562, 568; Caldwell lina case. Allen v. Watson, 2 Hill, S. C. V. Vanvlissengen, 9 Hare, 415, 425. 319, 320. See also, Spegail v. Perkins, 2 Ante, § 1068. 2 Eoot, 274; Delafield v. Hand, 3 Johns. * 1 Greenl. Ev. § 4; Robinson u. Gil- 310; Thompson v. Stewart, 3 Conn. 171, man, 20 Me. 299; Lincoln v. Batelle, 6 8 Am. D. 168; IT. S. v. Eeynes, 9 How. Wend. 475 ; Griswold v. Pitcairn, 2 Conn. U. S. 127. 85. Limit of Doctrine. — I am not seek- 6 Ante, § 1083. ing tlie outer limit of this sort of doctrine. ^ Ohio o. Hinchman, 27 Pa. 479 ; Paine Marshall, C.J. puts it thus: "The laws ». Schenectady Ins Co. U R.I. 411. And of a foreign nation, designed only for the see Hobbs v. Memphis, &c. Eld. 9 Heisk. direction of its ovm affairs, ate not to be 873; Anderson v. May, 10 Heisk. 84; noticed by the courts of other countries. Lackland y. Pritchett, 12 Misso. 484; Hol- unless proved as facts." Talbot v. See- ton v. Gleaaon, 6 Post. N. H. 501. 471 § 1098 EVIDENCE OP MARRIAGE. [BOOK IV. ordinance of a public nature as authentic, that may of itself be sufficient evidence of the actual existence and terms of such law or ordinance ; " ^ for this renders it, as to the evidence, domestic law. Likewise it has been held in the Supreme Court of the United States that a copy of the Civil Code of Prance, purporting to be printed at the royal press in Paris, and received in the course of our international exchanges, with the indorsement, "ies Crardes des Sceaux de France a la Cour Supreme des Etats Unis" is, without further proof, evidence of the French law. " Congress," said Wayne, J., "has acknowledged it by the act [authorizing the exchange], and the appropriation which was given to the Supreme Court to reciprocate the donation. We transmitted to the min- ister of justice oificial copies of all the laws, resolutions, and treaties of the United States, and a complete series of the deci- sions of this court. We do not doubt, whenever the question shall occur in the courts of Prance, that the volumes which were sent by us will be considered sufficiently authenticated to be used as evidence." ^ In like manner, — § 1096. state Laws in United States Courts. — As the jurisdic- tion of the courts of the United States extends to various ques- tions depending on State laws, and it is likewise in a measure local within State limits, they take judicial cognizance of the laws of the States.^ And — § 1097. Territories. — It is the same also of the laws of the Territories.* Again, — § 1098. The House of Lords — sits as a court of appeal equally from England and Scotland. Therefore in any case it can take judicial cognizance of the laws of both countries. This was curi- ously illustrated in a Scotch appeal depending on English law. The Scotch Court had decided in a particular way, following the opinions of the experts as to what was the law of England. The House of Lords, differing from them as to the English law, re- versed the decision of the Scotch Court.^ 1 Story Confl. Laws, § 640; Talbot v. Junction Rid. v. Bank of Ashland, 12 Seeman, I Cranch, 1. And see Chesa- Wal. 226 ; Merrill v. Dawson, Hemp, peake, &c. Canal v. Baltimore, &c. Eld. .563 ; Jones v. Hays, 4 McLean, 521 ; Jas- 4 Gill & J. 1 . per v. Porter, 2 McLean, 579. 2 Ennis . Crawford, 18 Conn. 361. 2 Low. 142, 145. ♦ Ante, § 1065. 2 Ante, § 1101, 1108 ; Ferguson v. Clif- ^ Ante, § 932, 936, 942, 943. ford, 37 N. H. 86 ; Donald v. Hewitt, 33 » Ante, § 838, 843, 856, 886. Ala. 534, 550, 73 Am. D. 431; Alexander ' Bird v. C. 21 Grat. 800; P. .;. Lam- 478 CHAP. XXXV.] SPECIALLY OP FOREIGN MARRIAGE. § 1116 § 1115. Presumption as to Foreign Law. — Since marriage is a natural right to 'which all marriageable parties are entitled ; ^ since it is the highest public interest ; ^ since it is of international law and by it specially protected ; ^ since whatever is shown to have been done is presumed to have been done rightly ; * since all pre- sumption is pressed into the rendering of sexual unions valid mar- riages, even as against the actual probabilities ; ^ since the courts accord prima facie validity to less important and less cherished foreign bargaiuings without proof of the foreign law ; ^ and since the law of nature and the common law severally require only mutual consent to constitute matrimony/ — whenever, in a proven transaction in any foreign country, two apparently marriageable persons are shown to have entered into any form of solemnization or contract which comprehends a present undertaking to be hus- band and wife, and nothing appears to cast discredit on the pro- ceeding, the foreign law should be presumed prima facie to make them married. This doctrine would be conclusive in legal reason, with a minute fraction of its support thus appearing ; with its full actual support, it stands without the possibility of overthrow or even of intelligent cavil. And the foundation of legal reason is the surest of all whereon to rest a doctrine of the law.^ As to which — § 1116. In Authority. — When, in 1864, " Bishop on Marriage and Divorce " was enlarged to two volumes so as to include the present topic, the author was able only to say of the proposition, which he then suggested in a less extended form of reasoning : " This is what ought to be, — what the general principles of our law of evidence require in such a case ; what the writer of these volumes trusts will be when this branch of our law is better con- sidered, — yet, as we are about to see, it is not safe to lay this down as being absolute law now."* Since which time, our Amer- ican tribunals have looked into the doctrine thus propounded, and have affirmed it, so that it may be accepted as established in adjudication.^" bert, 5 Mich. 349, 72 Am. D. 49; Oneale * Ante, § 931. V. C. 17 Grat. 582; S. v. Patterson, 2 Ire. 6 ^ntg, § 956-958. 346, 38 Am. D. 699; Reg. o. Savage, 13 « Ante, § 1071-1084. Cox C. C. 178, 14 Eng. Rep. 632; S. v. ^ Ante, § 295, 297, 390, 410. Schlachter, PhiUips, N. C. 520. s ^nte, § 130. 1 Ante, § 891. X Bishop Mar. & Div. 4th ed. § 521, 2 Ante, § 38. 522. 3 Ante, § 833. w Hutchins v. Kimmell, 31 Mich. 126, 479 § 1118 EVIDENCE OP MARRIAGE. [BOOK IV. § 1117. In England — Ireland. — Out of our own country the question appears a good deal muddled, and it is not altogether plain how the authorities at present are. A single English judge, presiding in a jury trial for polygamy where the first marriage was alleged to have been in Scotland, held that it was not suf- ficient to show a solemnization in the usual manner by a Roman Catholic priest, without proving also the Scotch law.^ But the contrary, as to a marriage in a foreign State, in a like case of polygamy, was afterward adjudged on grave consideration by the High Court of Justice in Ireland.^ At an earlier period in Ire- land, Dr. Radcliff said in the Consistory Court of Dublin : " If the fact of marriage be once proved directly or by circumstances, its lawfulness is presumed ; and it lies on the opponent to prove the illegality, as being contrary to the lex loci, or otherwise ; so that here, if the marriage was in Jersey, I must take it to be according to the laws of Jersey, semper prcesumitur pro matri- monio. The case of Steadman v. Powell ^ is an authority for both these positions." * But later, in the English Court of Exchequer, after the case of The Queen v. Millis had determined for England and Ireland that a common-law marriage requires the presence of a priest,'' a foreign marriage between English subjects at Beyrout, in Syria, was held not to be sufficiently proved to sustain an action for criminal conversation, where the ceremony was shown to have been performed by an American missionary who was not a priest in orders, and there was no evidence of the foreign law.8 § 1118. In Canada — the doctrine is in a like tangled condition. It was observed in the Upper Canada Court of Queen's Bench : " There is no question that the lex loci is to govern in such cases, and that when a marriage has been in fact openly solemnized we must presume it to have been solemnized according to the lex 18 Am. R. 164; Redgrave v. Redgrave, 38 ^ Reg. c;. Savage, 13 Cox C. C. 178, 14 Md. 93 ; Hynes v. McDermott, 7 Abb. N. Eng. Rep. 632. Cas. 98; Williams u. S. 54 Ala. 131, 25 ^ Reg. v. Griffin, 14 Cox C. C. 308. Am. R. 665 ; Haden v. Ivey, 51 Ala. 381, Precisely the same has been adjudged in 384; Evans v. Reynolds, 32 Ohio St. 163; Massachusetts. C. v. Kenney, 120 Mass. C. V. Kenney, 120 Mass. 387 ; Ilanou v. 387. S. 63 Md. 123; In re Tiernay, 25 N. B. « Steadman v. Powell, 1 Add. Ec. 58, 286; Hynes v. McDermott, 91 N. Y. 451, 2 Eng. Ec. 26. 458, 459, 43 Am. R. 677; Raynham o. * Else u. Else, Milward, 146, 150, 151. Canton, 3 Pick. 293, 297. And see ^ gee ante, § 399-406. Smith V. Smith, 1 Tex. 621, 46 Am. D. 6 Catherwood v. Caslou, 13 M. & W. 121. 261. 480 CHAP. XSXV.] SPECIALLY OP FOREIGN MARRIAGE. § 1120 loci, unless, upon the proof given of the facts and of the law tlien prevailing, we see clearly that it was otherwise." ^ But the same tribunal afterward refused to sustain a conviction for polygamy, where the first alleged marriage was in New York, and there was proof of the solemnizing fact, yet no sufficient evidence of the New York law.^ So the New Brunswick Court, on an indictment for adultery, where a fact of marriage was established as transpiring in Maine, held that the foreign law should also be shown.^ Later, the same tribunal upheld a marriage in Ireland, on proof of the fact, without evidence of the Irish marriage law.* In reason, the sort of issue, whether criminal or the ordinary civil, could make no difference ; since the distinction relates only to those proofs which depend on the presumed innocence of a cohabitation,^ they being insufficient if presumption conflicts with presumption ; though in- advertently the judges ma,y have deemed otherwise. § 1119. Argument from Convenience. — If foreign marriages were required to be proved in our American courts after more rigid rules than those set down in the foregoing sections as just in principle, extreme inconvenience would ensue. Here are con- gregated immense masses of refugees from poverty and oppression in the Old World, not to speak of our States being foreign to one another as to this class of law ; and if, whenever a foreign mar- riage is to be proved, the foreign law must be shown as a separate fact, there can be no end to the useless trouble which courts and litigants will have in these cases, or to the failures of justice thence proceeding. Still, — § 1120. Same as Ours. — Since in most of our States no formal solemnization is essential to matrimony, it would not be specially inconvenient to hold the foreign marriage law to be presumptively the same as our own. And there is some authority for this form of the doctrine.^ But that such is not its just form appears from the reasons on which it rests.''' ' Robinson, C.J. in Breakeyw. Breakey, ^ Ante, § 923, 940, 943 U13. 2 IT. C. Q. B. 349, 355; 8. r. also, by Dar- « Ante, § 1074; Bonneau v. Poydras, gan, J. in Reed v. Hudson, 13 Ala. 570. 2 Rob. La. 1 ; Legg v. Legg, 8 Mass. 99 And see Ewen's Case, 6 City H. Rec. 65 ; S. v. Patterson, 2 Ire. 346, 38 Am. D. 699 Trower's Case, Macq. Pari. Pract. 656; Crosby w. Huston, 1 Tex. 202, 231 ; Leav Ward V. Dey, 1 Rob. Ec. 759. enworth v. Brockway, 2 Hill, N. Y. 201 -' Reg. V. Smith, 14 U. C. Q. B. 565. Hynes v. McDermott, 82 N.Y. 41,37 Am And see Graham v. Law, 6 U. C. C. P. R. 538; Hynes v. McDermott, 91 N. Y, 310; Burt v. Burt, 2 Swab. & T. 88. 451, 458, 43 Am. R. 677. 8 Reg. V. Ellis, 22 N. B. (P. & B.) 440. ' Ante, § 1115. * In re Tiernay, 25 N. B. 286. VOL. I.— 31 48]^ § 1122 EVIDENCE OP MARRIAGE. [BOOK IV. IV. The Novrpresumptive Proofs of a Foreign Marriage. § 1121. Proving both Fact and Law. ■ — Whatever be the true doctrine of presumption within the elucidations of the last sub- title, it is always a correct method, if the party chooses, to prove first the foreign law, and then a solemnization after its forms.^ And more or less in conflict with the doctrine of the last sub-title, we have cases which require the foreign law, even in the circum- stances there contemplated, to be separately proved.^ But — § 1122. 'Witnesses and Accompanying Facts. — Largely the courts accept evidence of the foreign law from non-professional witnesses,^ and even allow it to be inferred from the open and public solemnization of the marriage itself,* especially if by a minister of religion, or other person shown to be in the habit of performing the ceremony .^ In a Virginia case, Staples, J., ob- served : " Wlien a witness testifies to a marriage in a foreign State, solemnized in tlie manner usual and customary in such State, by a person duly authorized to celebrate the rites of mar- riage, and the parties afterwards lived together as man and wife, this is as satisfactory evidence of a valid marriage as could be ex- pected or desired ; and in such case it is not necessary to prove the law of such State, or to offer further evidence of a compliance with its provisions." ^ So, on an English divorce trial before Dr. Lushington, the marriage to be proved having occurred at Batavia, in the island of Java, a witness testified to his presence thereat in a Lutheran church, the religion of the country being Lutheran, or Calvinistic. A ceremony of marriage was performed by a per- son appearing to be in holy orders, but no banns had been pub- lished, and the witness could not say it was valid by the lex loci. No certificate was produced. Yet the learned judge held the proof to be adequate, and said : " If it was absolutely necessary in all cases of this description, where the marriage was in a foreign 1 Warner w.C. 2 Va. Cas. 95; Foms- ^ Phillips v. Gregg, 10 Watts, 158. hill V. Murray, 1 Bland, 479; Montague But see 2 Stark. Ev. 519; and Kex v. V. Montague, 2 Add. Ec. 375, 2 Eng. Ec. Whetford, supra. 350. i Rex V. Brampton, 10 East, 282, 289, 2 2 Phil. Et. with C. & H.'s notes, 209 ; 290; Duncan v. Duncan, 2 Monthly Law Eoscoe's Crim. Ev. 28G ; 2 Bum Ec. Law, Mag. 612. The point is stated, but not by Phillim. 476 c ,• Smith v. Smith, 1 Tex. decided, in Nixon v. Brown, 4 Blackf. 621, 46 Am. D. 121 ; Phillips v. Gregg, 10 157. Watts, 158, 36 Am. D. 158 ; Kex v. Whet- 6 S. v. Kean, 10 N. H. 347, 34 Am. D. ford, cited 5 Bentham's Rationale of Judi- 162. cial Evidence, 160. 6 Bird v. C. 21 Grat. 800, 807, 808. 482 CHAP. XXXV.] , SPECIALLY OF FOREIGN MARRIAGE. § 1123 country, that I must have actual and direct proof that it was ac- cording to the lex loci, and valid by that law, — if that was the rule of these courts, it would lead to considerable inconvenience. For the last twenty years, since the pacification with France, so many marriages have been contracted by British subjects in foreign countries, — in South America, and westward and east- ward to the Philippine Islands, — that if the law required abso- lute proof of their validity according to the lex loci, it would amount pretty nearly to a denial of justice. I do not appre- hend that such strictness of proof is required." ^ Passing by this looser sort of proof, — § 1123. 'Witnesses generally to Toreign Law — must be experts in such law. To quote from an English writer,^ the witness " must either be a professional man belonging to the country whose laws are in question, or at least he must hold some official situation, which presumes because it requires sufficient knowledge.^ Thus, a judge, an advocate, a barrister, or an attorney will be an admis- sible witness to prove the laws of his own country ; and an attor- ney-general, though not a barrister, as is occasionally the case in some of our colonies, may be examined as a person peritus virtute officii.*^ So a Roman Catholic bishop, holding the office of coad- jutor to a vicar-apostolic in this country, has in virtue of that office been considered as a person skilled in the matrimonial law of Rome, and therefore an admissible witness to prove that law.^ Whether a French vice-consul here would be allowed to prove the law of France as a person officially skilled may admit of some doubt, though on one occasion the testimony of such a person was admitted by Lord Tenterden.^ Be this as it may, the law of a foreign country cannot be prOved even by a jurisconsult, if his knowledge of it be derived solely from his having studied it at a university in another country.'' Neither, as it seems, can a mer- 1 Duncan o. Duncan, 2 Monthly Law ^ Sussex Peerage Case, 11 CI. & IT. 85, Magazine, 612. See also the observations 117-134. of the same learned judge in Cood v. Good, f' Lacon v. Higgins, 3 Stark. 1 78, D. & 1 Curt. Ec 755, 6 Eng. Ec. 452, 456. See E. N. P. 38. also Eex v. Brampton, 10 East, 282. ' Bristow v. Sequeville, 5 Exch. 275 ; 2 2 Taylor Bv. § 1281. 8. c. nom. Bristow c De Secqueville, 3 8 Sussex Peerage Case, 11 CI. & F. 85, Car. & K. 64. In the Goods of Bonelli, 1 134. P. D. 69. See Dauphin v. U. S. 6 Ct. CI. * lb. 124, per Lord Brougham; Rex 221. V. Picton, 30 How. St. Tr. 225, 509-512; Ward 17. Dey, 7 Notes Cas. 96, 101-106. 483 § 1124 ETIDENCB OP MARRIAGE. [BOOK IV. chant or other person, who holds no official situation, and who is unconnected with the legal profession, be heard to expound the law, though the judge may be satisfied that he really possesses ample knowledge on the subject.^ If the question, however, relates to a foreign custom or usage, any witness will be admissible who is acquainted with the fact;^ and, therefore, a London hotel-keeper, who was formerly a merchant and stock-broker at Brussels, has been permitted to prove the mercantile usage in Belgium, with respect to the presentment of a promissory note that was made payable in a particular place." ^ In accord with this English doctrine is the American.* Yet the laws of a peculiar and isolated foreign people, such as the Chinese were formerly, and to some extent are now, may be proved by non-professional wit- nesses,^ because and if no other are obtainable. Now, — § 1124. Further of Marriage-law Experts. — Experts are re- quired to have a special knowledge of that to which they testify as such, not also of all collateral things.^ Therefore an expert to foreign marriage laws need not be a lawyer, understanding all branches of the foreign law.'^ So that a clergyman or priest has been adjudged competent; because, said Staples, J., "all persons who practise a business or profession which requires them to posses^ a certain knowledge of the matter in hand are experts, so far as expertness is required." ^ There is almost authority for saying that any inhabitant of a foreign country may be a witness to its marriage laws; because, as judicially observed," all resi- dents of a country, of marriageable age and ordinary under- standing, are familiar with the usual and customary forms of marriage."^ The contrary to this was adjudged in England. 1 Per Lord Lyndhurst, C. stating the Dyer v. Smith, 12 Conn. 384; Walker v. unanimous opinion of the judges and the Forbes, 25 Ala. 139, 60 Am. D. 498. Lords in Sussex Peerage Case, 11 CI. & ^ 'Wileoeks v. Phillips, 1 Wal. Jr. 47. r. 85, 134, and overruling Reg. v. Dent, And see S. u. Moy Looke, 7 Or. 54. 1 Car. & K. 97. " 1 Bishop Crim. Proced. § 1179; 2 lb. 2 Ganer v. Lanesborough, Peake, 17 ; § 632, 687. explained by Lord Lyndhurst, C. in Sus- '< Ante, § 1122; and Sussex Peerage sex Peerage Case, 11 CI. & F. 85, 124. Case, 11 CI. & F. 85. See Mostyn v. Fabrigas, 1 Cowp. 161, 174, 8 Bird v. C. 21 Grat. 800, 808. To the per Lord Mansfield ; Feaubert v. Turst, like effect, see American Life Ins. &c. Co. Prec. Ch. 207. v. Rosenagle, 77 Pa. 507 ; S. v. Goodrich, 3 Vander Donckt v. Thellusson, 8 14 W. Va. 834. C. B. 812. " "Wottrich u. Freeman, 71 N. Y. 601. * See Dougherty v. Snyder, 15 S. & K. See Hynes v. McDermott, 7 Abb. U. 84; Tyler v. Trabue, 8 B. Monr. 306; Cas. 98. 484 CHAP. XXXV.J SPECIALLY OP FOREIGN MARRIAGE. § 1126 "There may be certain cases perhaps," said Jervis, C. J., "in which it may not be necessary to have a lawyer to give evidence, but the court is clearly of opinion that some witness conversant with the Scottish law of marriage should have been called on the part of the crown." And Alderson, B. : " The House of Lords in the Sussex Peerage Case appears to have overruled the decision of Mr. Justice Wightman, who held that an unprofessional wit- ness might prove the law of Scotland with regard to marriage." ^ The reader will observe that what is here said relates to a witness who is a mere expert, and who does not add the weight of the ac- companying facts of the transaction, as stated in a preceding section. 2 § 1125. Date of LaTv — (^Presumed to remain Unchanged). — When a statute or the unwritten law is proved as of a particular date, its continuance to a subsequent period will be presumed, — leaving the burden with the other party to show, if he can, a change.^ This is but a special form of the larger doctrine, famil- iar in our law of evidence, that a condition of things once appear- ing presumptively continues. The common application of it is where the condition is shown at a particular date, and thence the same condition is inferred as continuing at a date subsequent. But obviously the form may be reversed ; so that if the condition at the last date is proved, it will be presumed to have been the same at the first date. There can be no distinction between these two forms of the proposition. But the habits of legal thought are inveterate, and as water that has always been accustomed to flow down-hill never can be allured into the opposite course, so it has been found practically impossible for bodies of lawyers and judges to carry a presumption from" the later date up to the earlier. Thus, — §1126. Lauderdale Peerage. — In the case of the Lauderdale 1 Eeg. V. PoTey, 14 Eng. L. & Eq. 549, riage which by them was valid. Keg. v. 6 Cox C. C. 83, 84, Dears. C. C. 32. For Charleton, Jebb, 267, 1 Crawf. & Dix C. C. prior rulings of Wightman, J. see Eeg. v. 315. Dent, 1 Car. & K. 97; Eeg. c. Simmonsto, ^ Ante, § 1122. 1 Car. & K. 164 ; s. c. nom. Keg. v. Sim- ^ S. v. Piitterson, 2 Ire. 346, 38 Am. T>. monite, 1 CoxC. C. 30; Keg. «. Newton, 699; Eaynham v. Canton, 3 Pick. 293, 2 Moody & E. 503. So, in an Irish po- 296; Davis v. Curry, 2 Bibb, 238, 240, lygamy case where the first marriage was 241 ; Charlotte v. Chouteau, 25 Mo. 465 ; in Scotland, it was held that its validity FarweU v. Harris, 12 La. An. 50; Good- need not be proved by one conversant win v. Appleton, 22 Me. 453; Stokes v. with the Scotch laws, but it is sufficient Macken, 62 Barb. 145. if the jury believe there was in fact a mar- 485 § 1126 EVIDENCE OP MARRIAGE. [BOOK IT. Peerage, involving, as it appears in the English books, only an earldom,^ yet in fact large pecuniary interests also in Scotland,^ the decision turned upon the validity of a marriage celebrated in the city of New York, in 1772. And the question the most anxiously and earnestly agitated, as the author has opportunity to know, in the Scotch Court, in the House of Lords, and among counsel and experts, was the condition of the New York marriage law at the date mentioned. The undertaking to trace it down- ward in the order of time led into an apparently inextricable tangle about "The Duke's Laws" and other dark things con- nected with the early history of New York. Yet the Scotch judges, apparently all the Scotch and English lawyers employed in the case, the experts on the American law who testified before the House of Lords, and the entire body of this high tribunal assumed that the only method was to conduct the investigation down the stream of time, in utter oblivion of the truth so obvious on its suggestion that the way for travel in the other direction was equally permissible. The decision, sustaining the marriage, was put upon ground which left this particular matter unimpor- tant; otherwise, quite likely, an earldom and large estates lost would have been the consequence of the upper ranks of the pro- fession of the law in Scotland, England, and the United States, rushing as impelled by habit, instead of doing a little very obvious thinking. For the path from a later date, when the law was con- clusively settled in New York, upward to 1772, was open, plain, and certain. Not even presumption was required in travelling it, but at every step the light of the then present shone upon it in absolute distinctness and fulness.^ 1 Lauderdale Peerage, 10 Ap. Cas. 692. in consequence of the exceptional im- 2 I have not made a search to see pre- portance of the question and the interests cisely how far this case appears in the involved, I consented. According to in- Scotch books, on a suit to recover the structions to counsel, "The judges in estates. Maitland v. Maitland, 12 Scotch Scotland indicated that the evidence re- Sess. Cas. 4th ser. 899, belongs to it. quired should be given by an American 3 On behalf of Major Maitland, who by lawyer who had made the history of the the decision in the House of Lords be- law a matter of special study, as the ques- came the Earl of Lauderdale, counsel were tion is an historical one ; namely, as to the employed in New York to obtain expert system of law regarding marriage in New evidence. After the Scotch suit and ap- York in 1772. The counsel who is to plication in the House of Lords for ad- give evidence will therefore please state mission to the earldom had proceeded a his age, and how long he has made the certain way, it occurred to some one con- history of the law in New York or in nected with the case to cable to the New America generally, or specially on the sub- York counsel to obtain my views. And ject of marriage, the subject of his special 486 CHAP. XXXV.] SPECIALLY OP FOREIGN MARRIAGE. §1127 § 1127. Confessions of Foreign Marriage. — There is some au- thority for saying that because a non-expert witness cannot tes- tify to the foreign marriage laws, so liiiewise cannot a non-expert study and research." There was no allu- sion to the possibility of travelling other- wise than down the stream of time. And yet the Scotch Court was fuUy aware that at a date subsequent to 1772 the law had been by numerous adjudications settled in New York, and that neither itself nor the House of Lords had or pretended to any jurisdiction to overrule on this trial the final determinations of the New York tribunals. Seeing, therefore, that to re- verse the order of time and travel upward instead of downward was a thing "not thought of" by the Scotch judges, and knowing that a mere suggestion would make plain to them the better method, I declined the investigation thus requested. Instead of which, I said : " In Fenton v. Reed, 4 Johns. 52, decided in 1809, a mar- riage had in 1800 without formal solemni- zation was adjudged to be good. And the court observed, 'No formal solemni- zation of marriage was requisite. A con- tract of marriage made per verba de prmsertti amounts to an actual marriage, and it is as valid as if made in facie Eccle- sice.' And this has always remained the law of New York, established by constant usage, and numerous judicial decisions. 1 Bishop Mar. & Div. 6th ed. § 279. The Revolution, which separated New York from the mother country, did not change any laws on such a subject as this. And the law of marriage was the same in 1772, before the Revolution, as after it in 1 800 and 1809, unless changed either by the written Constitution or by a statute. I think I cannot be mistaken in saying that there was no statute. The written Con- stitution was adopted during the war of the Revolution, in 1777. The only provi- sion in it which any person would deem applicable to the present question is the following," &c. I omit the clause of the Constitution, and my comments thereon. The opinion proceeds : " Therefore, if the Duke's law of marriage, or any other like it, was in force in 1772, it was also in force in 1800 and 1809. So we have this dilemma, — either that no such law was in force in 1772, or that it was judicially interpreted to mean nothing as against the validity of the marriage. And what the courts interpreted the law to be it was. No researches of historians, no reasoning contrary to the conclusions of the courts, can render the fact of the law otherwise than as thus stated." This opinion would appear not to have reached England in time for the idea to travel into the House of Lords. A New York expert, who, like myself, was expected to give a deposition for use in the Scotch Court, either adopt- ing my view or arriving at it indepen- dently, concurred therein. And Loudon counsel, to whom these opinions and those of another expert were submitted for his opinion thereon, wrote, to give simply a sufficient extract, as follows : " I have thought it right to express at some length my views on this historical inquiry, be- cause I understand this to be the question on which my opinion is more particularly asked ; but in truth I look upon the ques- tion of comparatively little moment to Major Maitland, and I do so for several reasons. In the first place, the reasoning in Mr. Bishop's and Mr. 's opinions, founded upon the case of Feuton v. Reed, 4 Johns. 52, and similar cases, and the terms of the art. 35 of the Constitution of 1777, is to my mind absolutely con- clusive that in the year 1772, whether the law of 1664 or that of 1684 or neither of them were in force, a simple contract of marriage per verba de prasenti, without the presence of a priest or minister or magistrate or any other formal solemni- zation, amounted to an actual marriage." The litigation was at this point termi- nated by a compromise, so nothing fur- ther of it appears in the Reports. But, without more, the oijiission of The Thing not Thought of — spoken of in numer- ous passages in the preceding elucidations of this volume (as, ante, § 462, 664, 674, 876, 963) — came sufficiently near to work- ing disaster to the party in the right in this most important case, even affecting the future legislation of a great nation, to impart its lesson of admonition to the entire profession of the law. 487 § 1128 EVIDENCE OP MARRIAGE. [BOOK IV. party confess to his foreign marriage.^ But this sort of distinc- tion does not accord with the common course in our courts, where admissions and confessions of all classes of parties are received in evidence against themselves, though the law is an element in the thing to which they confess. If, contrary to just principle, the tribunals of a particular State reject confessions to the fact of a domestic marriage,^ they will apply the same rule to a foreign one. But, said Parker, J. : "I see no reason for making a dis- tinction between cases of marriage in a foreign country and mar- riage in this State. A careful examination of the decisions shows that none has really been recognized." ^ And generally in our States, since confessions to a domestic marriage are admissible, so are they to a foreign.* § 1128. Presumed Conformity to Foreign La-w — (Prussian Mar- riage—Polygamy). — On an indictment for polygamy, where the first alleged marriage was in Prussia, it appeared that by the Prussian law a marriage to be valid must be entered into as a civil contract before a civil magistrate. Commonly in practice a religious solemnization follows the civil, but the law makes it severely penal to reverse the order and have the religious one first. In this instance, only the religious ceremony was shown ; and as those engaged in it would have been guilty of crime had not the other been performed, it was urged that the presumption of their innocence would sustain the inference of its performance. But it would also have shown the guilt of the defendant in the second marriage for which he was on trial. So the court rejected this conclusion ; Paine, J., observing : " Perhaps, under the justly liberal rule in respect to proof of foreign marriages in civil suits, it would be allowed to prevail. But to give it that effect in a criminal prosecution would be to overcome the presumption of the prisoner's innocence by the no stronger presumption of the innocence of a stranger, and that in a proceeding in which such stranger was not on trial. This is not consistent with the strict- ness required in criminal prosecutions. In these, there must be 1 P. V. Lambert, 5 Mich. 349, 366, * "Williams v. S. 54 Ala. 131, 25 Am. 72 Am. D. 49; Tncker w. P. 117 HI. 88. E. 665; Oneale v. C. 17 Grat. 582; Reg'. " Ante, § 1057-1063. v. Newton, 2 Moody & R. 503, as to which, ' Gahagan v. P. 1 Par. Cr. 378, 386. See, and the next case, see ante, § 1 124 ; Reg. v. as further iUustrating this matter, Welland Siramonsto, 1 Car. & K. 164; s. c. nom. Canal v. Hathaway, 8 Wend. 480, 484, 24 Reg. o. Simmonite, 1 Cox C. C. 30; Cay- Am. D. 51 ; Smith v. Elder, 3 Johns. 105, ford's Case, 7 Greenl. 57. 114. And see P. v. Lambert, supra. 488 CHAP. XXXV.j SPECIALLY OP FOREIGN MARRIAGE. § 1131 proof either direct or circumstantial, having some intrinsic ten- dency to establish the facts showing guilt." ^ § 1129. Plead and Prove. — By all opinions, when it becomes, necessary to prove the foreign laws, they must be pleaded in mar- riage cases^ the same as in others;^ the qualification in both being, in the words of Phelps, J., " that they may be given in evi- dence without being specially pleaded, like other matters of fact, in cases where the rules of pleading do not require the facts to be specifically set forth." * § 1130. Compared with Domestic Marriage. — There are prac- tical reasons, yet not supported by much judicial authority, for holding the proofs of a fact of marriage less strict when the cele- bi'ation was abroad than when in the country of the forum.^ And it has been deemed that the proof of a foreign law may be more easily dispensed with in proportion as it becomes difficult.® Hence, as marriage is specially favored,'^ the courts may well relax the rules of proof when a foreign marriage is in litigation. And, said Abbott, C. J., speaking of ordinary contracts made abroad : " It would be productive of prodigious inconvenience if in every case in which an instrument is executed in a foreign country, we were to receive in evidence what the law of that country was, in order to ascertain whether the instrument was or was not valid." 8 § 1131. Specially of Proof hy Foreign Record : — Competent — Compared with Domestic. — In a preceding chap- ter,® the proof of the fact of a domestic marriage by the marriage register and other like sources is explained. In a general way, the doctrines there stated apply also to foreign marriages.^" 1 Weinberg v. S. 25 "Wis. 370, 376. * Pickering ■/. Fisk, 6 Vt. 102, 105. 2 Ward V. Dey, 1 Rob. Ec. 759, 762 ; And see, as to marriage, Martin v. Martin, Montague v. Montague, 2 Add. Ec. 375, 22 Ala. 86; Trimble o. Trimble, 2 Ind. 2 Eng. Ec. 350 ; Herbert v. Herbert, 2 76 ; Richmond v. Patterson, 3 Ohio, 368. Hag. Con. 263, 271,3 Phillim. 58, 4 Eng. 5 ^mj gee Brower v. Bowers, 1 Abb. Ec. 534, 538, 539; Ruding u. Smith, 2 Ap. 214. Hag. Con. 371 ; Middleton v. Janverlin, ^ Phillips u. Gregg, 10 Watts, 158, 36 2 Hag. Con. 437; Scrimshire v. Scrim- Am. D. 158. shire, 2 Hag. Con. 395 ; Swift v. Swift, 4 ' Ante, § 956-958. Hag. Ec. 139; Price v. Clark, 3 Hag. Ec. ^ James v. Catherwood, 3 D. & R. 190. 265 ; Lloyd v. Petitjean, 2 Curt. Ec. 251 ; And see Bristow v. Sequeville, 5 Exch. Nokes V. Milward, 2 Add. Ec. 386, 391, 275; Alves v. Hodgson, 7 T. R. 241. 2 Eng. Ec. 356, 359. And see Cood v. ^ Ante, § 986-1020. Good, 1 Curt. Ec. 755, 6 Eng. Ec. 452, 1° On this general doctrine and various 458. questions within it, consult S. v. Dooris, 3 Ante, § 1066, 1085. 40 Conn. 145 ; Hutchins v. Kimmell, 31 489 § 1133 . EVIDENCE OP MARRIAGE. [BOOK IV, § 1132. Between our States. — The Constitution of the United States provides that " full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." ^ That the term " public records " includes a mar- riage record is suiSciently plain in reason, but the question was for a good while unsettled in judicial authority; and the earlier statutes of the United States were not so distinct on the subject as the present ones. By the Revised Statutes, " all records and exemplifications of books, which may be kept in any public office of any State or Territory, or of any country subject to the juris- diction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other State or Territory, or in any such country, by the attestation [proceeding to specify the method]. And the said records and exemplifi- cations so authenticated shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State, Territory, or country, as aforesaid, from which they are taken." ^ Under which provisions, it is now undoubted law that the mar- riage record, exemplified as the statute points out, including evi- dence showing the certificate to be genuine and from the proper source,^ is admissible ; * or the party may prove the record after any common-law method.^ § 1133. Foreign Rules of Evidence. — It is perceived that by the terms of the national statute just quoted, which may be accepted as the congressional interpretation of the Constitution, the effect of tlie record is determined by the law, not of the State in which it is used, but of that wherein it is made. Aside from this pro- vision, and in respect of strictly foreign records, " we are not," to quote from the judge ordinary in an English case, " bound by Mich. 126, 18 Am. E. 164; S. v. Good- i Const. U. S. art. 4, § 1. rich, 14 W, Va. 834 ; American Life Ins. 2 r. g. of U. S. § 906. &c. Co. V. Rosenagle, 77 Pa. 507; U. S. ' S. v. Dooris, 40 Conn. 145; S. o. V. Mitchel, 3 Wash. C. C. 95; Baner v. Horn, 43 Vt. 20. And see Buttrick v. Day, 3 Wash. C. C. 243 ; Conway v. Allen, 8 Mass. 273, 5 Am. D. 105. Beazley, 3 Hag. Ec. 639, 5 Eng. Ec. * Patterson t). S. 17 Tex. Ap. 102. See 242,248; Hyam i^. Edwards, 1 Dall. 1; Niles w. Sprague, 13 Iowa, 198; P. «. Lam- Weston V. Stammers, 1 Ball. 2 ; Bing- bert, 5 Mich. 349, 72 Am. D. 49 ; Swift v. ham V. Cabbot, 3 Dall. 19; C. v. Morris, Eitzhngh, 9 Port. 39. 1 Cnsh. 391 ; Chontean v. Chevalier, 1 ^ 1 Greenl. Ev. § 505; Otto v. Trump, Misso. 343 ; Ennis v. Smith, 14 How. 115 Pa. 425. U. S. 400 ; Nokes v. Milward, 2 Add. Ec. 386, 2 Eng. Ec. 356. 490 CHAP. XSXY.J SPECIALLY OP FOREIGN MARRIAGE. § 113& the rules of evidence in foreign countries, we must be guided by our own rules." So that tliough by the foreign law the record or the certificate of it would be admissible in the country where made, it will not be received in our own unless competent on the principles of our own law.^ § 1134. Foreign Law. — The law of a sister State under which was made a record exemplified as directed by the act of Congress proves itself, within a principle before stated.^ In other circum- stances, and except as we may deem the above-recited statute of the United States to qualify the doctrine, so much of the foreign law must be shown as will enable the court to see, not that the record would be evidence in the foreign locality, but that it is such a record as, if kept in our own State, would be evidence with us.^ §1135. Overlooked — ("Not thought of"*). — There are cases in which these views did not occur to counsel or the court, and records unaccompanied by the proofs thus indicated were silently received. Thus, in New York, the objection not being interposed, a sworn copy of the town record of Stonington, Connecticut, was accepted on a question of pedigree, — perhaps there is a differ- ence between this and a question of marriage, — where, also, the ruling was not essential to the case.^ Or perhaps the case may be deemed to be witliin the explanation just made,^ rendering evidence of the law of Connecticut unnecessary. So, in Pennsyl- vania, a certified and proved copy of a Barbadoes register was admitted in evidence of pedigree, — there being neither proof of the foreign law, nor objection for the want of it.^ § 1136. The English Practice — is by Taylor^ stated as follows: " Copies of such registers will be admissible only on proof that they are required to be kept, either by the law of the country to which they belong,^ or the law of this country. In the absence of ^ Finlay v. Finlay, 31 Law J. Mat Cas. 149 ; Caujolle v. Ferrie, 26 Barb. 177, 2 Ante, § 1094. 5 Ferguson v. Clifford, 37 N. H. 86 Taylor's Succession, 15 La. An. 313 ; P. i Lambert, 5 Mich. 349, 72 Am. D. 49 Richmond v. Patterson, 3 Ohio, 368 ; S. v. Uooris, 40 Conn. 145 ; S. u. Horn, 43 Vt, Hutchins v. Kimmell, 31 Mich. 126, 18 Am. R. 164. « Ante, § 1126, note. 6 Miner v. Boneham, 15 Johns. 226, Contra, Tucker y. P. 117 111. 88. s Ante, § 1132, 1133. ' Kingston >>>>>> And though the parties may be estopped as to third persons, they will not necessarily be so between themselves ; as, for example, in a divorce suit.^ Yet it appears that there are circumstances in which they will be estopped as between themselves.^ § 1151. Further of the Fact of Marriage : — How always Pertinent. — The doctrine of a fact of marriage has in preceding chapters, it is believed, been explained in all its details. Yet it should be specially remembered that where a marriage is presumptively shown by cohabitation, reputation, and the like, the party on the other side may, if there is no estoppel, prove that no fact of marriage did in truth transpire.* And — § 1152. For Jury. — The question of marriage or no marriage is, before a court of common law, for the jury.^ § 1153. Clandestine Marriages : — Effect on the Evidence. — Secrecy, we saw in a preceding chap- ter,^ does not invalidate a marriage, or in all circumstances weaken the proofs of it. And we have quoted Dr. Radcliff, in one case, as deeming the proven fact of intentional secrecy in the particular instance rather to aid, than otherwise, the proofs.'^ On the other hand, a New York surrogate once observed : " The policy of the law is opposed to concealment of the marriage contract. Pub- licity affords security. Upon this application for letters of admin- istration there is an effort to establish a secret marriage. There was no open cohabitation or acknowledgment, no mark or token of the relationship ; to external appearance the parties lived as single persons ; and the alleged contract [of marriage] was first announced when the lips of the decedent were sealed by death. In such a case, there is no presumption in favor of marriage ; the presumption is against it. There is no ground for invoking the charities of the law ; but the concealment excites suspicion, and calls for rigid scrutiny." ^ Doubtless the views of both these 1 Ponder ». Graham, supra; Mnnro r. 9, 56, 51 Am. D. 102; Dunbarton v. De Chemant, 4 Camp. 215; Allen v. Franklin, 19 N. H. 257; Felts v. Foster, "Wood, 4 Moore & S. 510, 1 Bing. N. C. Taylor, 121. 8; Spicer v. Spicer, 16 Abb. Pr. n.s. 112. « Cockrill v. Calhoun, 1 Nott & McC. 2 Amory v. Amory, 6 Rob. N. Y. 514. 285 ; Allen v. Hall, 2 Nott & McC. 114, And see Robbins v. Potter, 98 Mass. 532. 10 Am. D. 578. * Johnson v. Johnson, 1 Coldw. 626. 6 Ante, § .351. * Taylor v. Taylor, 2 Lee, 274, 6 Eng. ' Ante, § 1040. Ec. 124; Jenkins v. Bisbee, 1 Edw. Ch. 8 Cunningham ». Bnrdell, 4 Bradf. 343, 377 ; Stevenson v. McReary, 12 Sm. & M. 454, 455. 498 CHAP. XXXVI.J MISCELLANEOUS QUESTIONS. § 1156 learned judges are, though seemingly contradictory, correct as applied to the marriages severally in controversy.^ § 1154. Marriage Repute : — Special Considerations as to. — We have seen what is the gen- eral effect of a marriage repute, as a shadow from the central fact of cohabitation.2 Its effect in pedigree will be for the next chapter. Following the rules in pedigree, there are some other special circumstances, not well defined, wherein the marriage, it seems, may be made out sufficiently from reputation.^ Still it has been laid down that where it is to be shown as a substantive fact, it is within none of tlie exceptions to the general rule, and this species of evidence cannot be received.* In Louisiana, a marriage there celebrated while the State was under the dominion of Spain was allowed to be proved by reputation.® § 1155. Declarations accompanying Cohabitation : — Further concerning. — We have seen that such declarations are admissible as being of the res gestce.^ Said a learned judge : " Where persons live together as man and wife, their declara- tions are for the most part given in evidence ; and if these dec- larations be contradictory, it will of course create doubt, and must be left to the jury to determine." '^ It has been deemed that in some circumstances such declarations disclaiming marriage may outweigh the evidence by cohabitation and repute.* Those of a deceased woman, that her former husband was dead, were admitted to the question of the validity of her second marriage.^ § 1156. Judicial Record : — Competent. — Not only may a judicial record prove a divorce,'" it may also a marriage, or prove that there was none ; as, for example, the question of marriage or no marriage being always one of the issues in a divorce suit, the record of the judgment will be conclusive that there was a marriage or that there was 1 And see Davis u. Davis, I Abb. N. little, 38 Ga. 255 ; Pancoast v. Addison, Cas. 140 ; Shedden v. Attorney-General, 1 Har. & J. 350, 2 Am. D. 520. 2 Swab. & T. 170, 194. * Westfield v. Warren, 3 Halst. 249. '^ Ante, § 936 ; Henderson u. Cargill, ' Cole v. Langley, 14 La. An. 770. 31 Missis. 367; Spears i'. Burton, 31 Missis. ^ Ante, § 937. 547. ' Colcock, J. in Allen v. Hall, 2 Nott & " Post, § 1161 ; Chamberlain v. Cham- McC. 114, 10 Am. D. 578. berlain, 71 N. Y. 423; Morgan v. Purnell, ' Philbrick v. Spangler, 15 La. An. 46. 4 Hawks, 95 ; Shrewsbury Peerage Case, ' Spears v. Burton, 31 Missis. 547. 7 H. L. Cas. 1. See Abington v. North i" Ante, § 1143 et seq. Bridgewater, 23 Pick. 170; Bryan v. Doo- 499 § 1157 EVIDENCE OP MAEEIAGE. [BOOK IV. not.^ This sort of question will be further considered in the second volume.^ § 1157. The Doctrine of this Chapter restated. The law of evidence pertains to the natural reason of man as well as to our cultivated jurisprudence. It is a question of human judgment, not simply of artificial law, whether or not an alleged fact follows as a consequence of particular evidence tendered. So that, except to overrule some ill-shapen doctrine devised by judi- cial blundering, there is but little just scope for statutes in modi- fication of the law of evidence. It is not desirable to repeat here what has been enacted on the present subject. In respect of divorce, the proper direct proof of it is by the record, if in existence and accessible, otherwise by showing the contents of it. But marriage being a status, and divorce being the annulling or modifying of it, evidently there are various circumstances in which record evidence can be wholly dispensed with. And if in the particular instance the rules of evidence permit a divorce to be presumed, as often they do, the record cannot and need not, therefore, be shown ; for in the nature of things proof by record is never proof by presumption. This chapter presents some ques- tions in review of preceding elucidations, but we need not here review them. 1 Amoryw. Amory, 26 Wis. 152; Enger Neely, 6 Jones, N. C. 170; Batthews w. 17. Heckel, 21 Hun, 489. Galindo, 4 Bing. 610, 3 Car. & P. 238 ; 2 And see Sellman v. Bowen, 8 Gill & Martin v. Martin, 22 Ala. 86 ; Reg. v. J. 50, 54, 29 Am. D. 524; Muirhead v. Orgill, 9 Car. & P. 80; Eeg. v. Bowen, Muirhead, 23 Missis. 97 ; Pegram u. Isa- 2 Car. & K. 227 ; Rex v. HassaU, 2 Car. & teU, 2 Hen. & Mnnf. 193. The following P. 434 ; Reg. v. Woodward, 8 Car. & P. cases may also be illustratiTe and helpful: 561. Duncan v. Helms, 8 Grat. 68 ; Craige v. 500 CHAP. XXXVII.] IN PEDIGREE AND LEGITIMACY. § 116( CHAPTER XXXVII. THE MARRIAGE DISCLOSED IN THE PROOFS OF PEDIGREE AND LEGIT- IMACY. §1158,1159. Introduction. 1 1 60-1 1 62. Pedigree as to Marriage. 1163-1165. Legitimacy as to Marriage. 1166-1181. Children Legitimate or not. 1182. Doctrine of Chapter restated. § 1158. Distinctions. — Pedigree concerns primarily the order of descent in families, including births, marriages, and deaths ; ^ legitimacy, the status of the child as derived from the matri- monial status of the parents. It is perceived, therefore, that the two things are difPerent, yet not absolutely and in every partic- ular separable. It is seen also that in both there is a marriage, J3ut in pedigree it comes in obliquely, and in legitimacy almost directly, while even in legitimacy it is less primarily the object of inquiry than in most of the ordinary issues involving marriage. And it is a general principle that each lateral departure, from a primary fact permits proof of such fact by less stringent evi- dence. For convenience in the elucidations, — § 1159. How Chapter divided. — We shall consider, I. Pedi- gree as to Marriage ; II. Legitimacy as to Marriage ; III. Chil- dren Legitimate or not. I. Pedigree as to Marriage. § 1160. Hearsay in Family. — Family relationships and descents extend upward into remote periods. Therefore the proofs of them, including the marriage on which they depend, cannot be made so direct and certain as the ordinary proofs of marriage explained in the preceding chapters. The consequence of which is, that in 1 1 Greenl. Ev. § 103, 104. 601 § 1162 EVIDENCE OF MAERIAGE. [BOOK IV. questions of pedigree, even where legitimacy is involved,^ a re- stricted hearsay, not the talk of anybody, but the written or oral declarations of deceased persons connected by blood or marriage with the family or individual of it whose pedigree is in question, or the general family repute, may be shown in evidence.^ This proposition, it is perceived, includes — § 1161. Repute.— The family and other like repute is in proper circumstances, not only admissible, but in a general way suffi- cient as to the pedigree. This proposition necessarily includes the marriage when viewed indirectly and obliquely ; ^ how far, when viewed otherwise, may be less plain as general doctrine, but perhaps not a difficult question as respects the special facts of a case.* Herein this issue differs from the ordinary one of married or not.^ For " in cases of pedigree," observed Story, J., " the rules of law have been relaxed in respect to evidence, to an extent far beyond what has been applied to other cases." ^ Now, — § 1162. Diifering from Mere Legitimacy. — We thus See that while pedigree may include legitimacy, it is not in the proofs the same. So that to apply to it the rules governing legitimacy, when standing as an inquiry by itself, would be too restrictive. ' Lauderdale Peerage, 10 Ap. Cas. 692. v. Bowman, 13 Pet. 209; Garland v. 2 1 Greenl. Ev. 103, 104 ; McCreedy w. Browner, 18 Johns. 37; Chancellor v. Garbutt, 6 Dem. 252; De Haven v. De Milly, 9 Dana, 23, 33 Am. D. 521; Ewell Haven, 77 Ind. 236 ; Cannon v. Killen, 5 v. S. 6 Yerg. 364, 27 Am. D. 480 ; Flowers Del. 14; Swink v. French, 11 Lea, 78, 47 „. Haralson, 6 Yerg. 494; Ewing v. Sa- Am. R. 277 ; Greenfield v. Camden, 74 Me. very, 3 Bibb, 235 ; Emerson o. White, 9 56 ; Harland i'. Eastman, 107 111. 535. See Fost. N. H. 482 ; Mooers u. Bunker, 9 Brooks V. Francis, 3 MacAr. 109. Fost. N. H. 420 ; CaujoUe v. Ferrie, 26 3 Ante, § 1158. Barb. 177; Woodard v. Spiller, 1 Dana, ' Ford V. Ford, 7 Humph. 92; Davis 179, 25 Am. D. 139; Chapman «. Chap- V. Wood, 1 Wheat. 6 ; Vaughan v. Phebe, man, 2 Conn 347, 7 Am. D. 277 ; Johnson Mart. & Yerg. 5 ; Douglass v. Sanderson, v. Howard, 1 Har. & McH. 281 . 2 DaE. 116; White «. Strother, 11 Ala. ^ Westfield v. Warren, 3 Halst. 249. 720; Kelly p. McGuire, 15 Ark. 555- And see Henderson v. Cargill, 31 Missis. Saunders v. Fuller, 4 Humph. 516 ; Green- 367 ; Mima Queen o. Hepburn, 7 Cranch, wood V. Spiller, 2 Scam. 502; Kaywood v. 290; Miner v. Boneham, 15 Johns, 226; Barnett, 3 Dev. & Bat. 91 ; Strickland v. Brooks v. Clay, 3 A. K. Mar. 545 : Shearer Poole, 1 Dall. 14 ; Ross v. Cooley, 8 Johns, v. Clay, 1 Litt. 260 ; Independence v Pomp- 128; Speed v. Brooks, 7 J.J. Mar. 119; ton, 4 Halst. 209; Wilmington v. Bur- Birney a. Hann, 3 A. K. Mar. 322, 13 Am. lington, 4 Pick. 174; Everingham v. D. 167; Elliott v. Peirsol, 1 Pet. 328; Messroon, 2 Beav. 461. Waldron v. Tuttle, 4 N. H. 371 ; Stein « Chirac v. Eeinecker, 2 Pet. 613, 621. 602 CHAP. XXXVII.J IN PEDIGEEE AND LEGITIMACT, § 1167 II. Legitimacy as to Marriage. § 1163. Based on Marriage. — Legitimacy depends on the par- ents being lawful husband and wife.^ Therefore, — , § 1164. In Proving the Marriage,^ — we may have recourse to the rules laid down in the foregoing chapters, but not fully to those special to the last sub-title. And still in legitimacy cases, we find more or less real or apparent relaxation of the ordinary proofs of marriage, particularly as to questions on the border line between it and pedigree. But an intelligent discussion of this subject would require wide excursions into the general law of evi- dence, not advisable in this connection.^ In these cases as in the ordinary civil ones, — § 1165. Presumed Innocence of Cohabitation. — A child setting up his legitimacy may, like other parties in ordinary civil suits,* rely on the presumed innocence of his parents' cohabitation in proof of their marriage.® III. Children Legitimate or not. § 1166. Already — in various connections it has been neces- sary for the purpose of rendering perspicuous preceding elucida- tions, to state in part the doctrines of this sub-title.^ And the same reason will here require some repetition of what has gone before. § 1167. The Abstract Rule — of the common law for legiti- macy is, that childi'en either born or begotten while the two par- ents are lawful husband and wife are legitimate, and no others are.'^ 1 Ante, § 272, 277, 492, 671, 725-727, T. 491 ; Sharp v. Johnson, 22 Ark. 79; 754 ; Sheddeu v. Attorney-General, 2 Johnson v. Johnson, 1 Des. 595. Swab. & T. 170, 193. 4 Ante, § 931-943. 2 rirmeis v. S. 61 Wis. 140 ; Burnaby 5 Boone v. Purnell, 28 Md. 607, 92 Am. <:. BaiDie, 42 Ch. D. 282; Teter v. Teter, D. 713; Talbot v. Hunt, 28 La. An. 3; 101 lud. 129, 51 Am. R. 742; Gaines i>. Kaise k. Lawson, 38 Tex. 160; Campbell Green Pond Iron Min. Co. 5 Stew. Ch. v. Campbell, Law Eep. 1 H. L. Sc. 182; 86 ; Dysart Peerage Case, 6 Ap. Cas. Illinois Land, &c. Co. v. Bonner, 75 111. *89- 315; Sale v. Crutchfield, 8 Bush, 636, = DanneUi v. Dannelli, 4 Bush, 51 ; 647. Barnum v. Barnum, 42 Md. 251 ; Black- « Ante, § 492, 579, 671, 725-727 ; BoU- burn u. Crawfords, 3 Wal. 175 ; Haddock ermann v. Blake, 24 Hun, 187 ; Wilson v. V. Boston, &c. Rid. 3 Allen, 298, 81 Am. Bahb, 18 S.C. 59. D- 656; Sale v. Crutchfield, 8 Bush, 636, 7 Ante, § 579, 671; Goodwin u. Owen, 647; In the Goods of Emsley, 2 Swab. & 55 Ind. 243. 503 § 1171 EVIDENCE OF MARRIAGE. [BOOK IV. So that theoretically, for example, if the wife bears a child from an illicit intercourse, it is illegitimate. But — § 1168. Practical Qualification — Presumption of Legitimacy. — For various reasons, such as the uncertainties and in some cir- cumstances the indelicacies of the proofs, the just claims of the children, who are innocent whether their parents are or not, and the public order, the law raises a strong presumption of legiti- macy whenever the mother is a married woman,i requiring for its overthrow irrefragable evidence, such as the absolute non-access of the husband,^ or his impotence.^ The precise force and extent of which presumption is not identical in all the tribunals ; as, — § 1169. Old Doctrine. — There was a time when the English common law held the child of a married woman to be conclu- sively legitimate, if begotten while her husband was within the four seas, — " that is," as Coke explains, " within the jurisdic- tion of the King of England," — except only where he " hath an apparent impossibility of procreation." * But — § 1170. Modified. — The court did not long permit so violent an estoppel.^ The commonly accepted doctrine now is, that though at the conception the mother committed or was living in adultery, still if the husband had access to her and might have been the father of the child, the law deems it his ; not entertaining the question which of two possible fathers is the more probable.® " Throughout the investigation," observed Lord Langdale, " the presumption in favor of the legitimacy is to have its weight and influence ; and the evidence against it ought, as it has been justly said, to be strong, distinct, satisfactory, and conclusive." ^ But — § 1171. Non-access. — Against a possible access it may be shown that in fact there was none, so the husband could not be the father ; thus overturning the presumption of paternity.^ Yet 1 Fox V. Burke, 31 Minn. 319. Peerage Case, 1 Sim. & S. 1.53; Head v. 2 Post, § 1171; Watts c^. Owens, 62 Head, 1 Sim. & S. 150, Morris y. Davis, Wis. 512. 5 CI. & F. 163; Barony of Saye & Sele, 8 Wilson V. Babb, 18 S. C. 59. 1 H. L. Cas. 507 ; Wright u Holdgate, 3 4 Co. Lit. 244 a. Car. & K. 158. ' " Barony of Saye & Sele, 1 H. L. Cas. ' Hargrave v. Hargrave, supra, p. 555 ; 507. Phillips V. Allen, 2 Allen, 453. ^ Hargrave v. Hargrave, 9 Beav. 552 ; ^ g. ^.. Shumpert, 1 S. C. 85 ; Atchley v. Hemmenway v. Towner, 1 Allen, 209; Sprigg, 10 Jur. N. 8. 144, 10 Law T. N. S. Morris V. Swaney, 7 Heisk. 591; S. v. 16; Plowes w. Bossey, 2 Drew. & S. 145; Shumpert, 1 S. C. 85 ; Best Ev. 4th Lond. Hawes o. Draeger, 23 Ch. T>. 173, 178; ed. § 349, p. 463, referring to Banbury Burnaby v. Baillie, 42 Ch. D. 282. 504 CHAP. XXXVII.] IN PEDIGREE AND LEGITIMACY. § 1173 for this the clearest and most conclusive evidence is required.^ An illustration is where he is proved to have been absent when the conception must have taken place.^ Contrary to what is thus set down, — § 1172. Exceptional Doctrine. — The Tennessee Court once held, in a case perhaps special, that thougli the child was begotten and born while the alleged parents were cohabiting, it should not be deemed to be the husband's. Said the judge : " The proof of her [the wife's] notoriously licentious conduct; the imbecile character of her husband ; the habit of intimacy between her and Morgan [the paramour] ; the expressed opinion of both Morgan and herself that Lucinda [the child claiming to be legitimate] was his child ; the dying declaration of Owen Franklin [the husband] that she was not his ; the want of resemblance to his family, and the striking one to that of Morgan ; ^ the fact that Mrs. Franklin when she abandoned her husband carried this child with her to Morgan, that they claimed it and gave it her name, — all prove to a moral certainty that Lucinda was not the child of Owen Frank- lin."* But,— § 1173. Common Doctrine. — However equitable this view may be, it seems a great relaxation of the presumption asv commonly entertained. Lord Langdale enumerated the instances in which this presumption may be overcome, as follows : " Showing that the husband was, 1. Incompetent; 2. Entirely absent, so as to have no intercourse or communication of any kind with the mother ; 3. Entirely absent at the period during which the child must in the course of nature have been begotten ; or, 4. Only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse." ^ As already observed, the presumption from a possible intercourse may be rebutted.^ But even as to this. Sir John Leach, M. R., once said : " If it were proved that she [the wife] slept every night with her paramour from the period of her separation from her husband, I must still declare the children to be legitimate." '' To render these words 1 Watts V. Owens, 62 Wis. 512. & P. 604 ; Shelly v. , 13 Ves. 56, ^ Pittsford V. Chittenden, 58 Vt. 49. 58 ; Eeg. v. Mansfield, 1 Q. B. 444, 1 'Post, §1175. Gale & D. 7 ; Head v. Head, Turn. & * Cannon«.Cannon,7Hnmph.410,411. R. 138, 1 Sim. & S. 150; Goodright v. * Hargrave v. H,argrave, 9 Beav. 552, Saul, 4 T. R. 356, 358 ; Morris r. Davis, 555. 5 CI. & F. 163, 215, 216; s. P. p. 242. 6 Ante, § 1171; Cope v. Cope, 5 Car. ' Bury .;. Phillpot, 2 Myl. & K. 349, 505 § 1175 EVIDENCE OP MARRIAGE. [BOOK IV. a just exposition of the present law, it must, at least, be assumed also that the husband had access. Such doubtless is the English doctrine ; and, on the whole, the American accords therewith.^ Yet there are American cases, besides the Tennessee one above- stated, which lay it down that the ancient rule on the question has been relaxed,^ and that it is of fact for the jury.^ If a case like that in Tennessee should arise in another State, wherein the law was not definitively settled, a practitioner might deem him- self not without hope were he to ui-ge upon the court the Ten- nessee doctrine. § 1174. Period of Non-access. — As the period of pregnancy is not uniformly nine months, but it may be less or more, the question is plainly of fact for the jury whether or not the con- ception could have occurred before or after the proven non-access. On this the medical books will most enlighten us, but there are also reported cases ; thus, where the child was born two hundred and seventy-six days after the last opportunity of intercourse, and the wife's conduct showed that she regarded it as her para- mour's, the jury were told to consider whether they were satis- fied the husband was not the fatlier. Thereupon they found it to be illegitimate, and the court sustained the verdict as proceed- ing from a right direction, and not contrary to the evidence.* In another case, two hundred and ninety-seven days were deemed not an impossible period of gestation.^ § 1175. Appearance of Child. — A resemblance of the child to the husband, or the contrary, is, in a case sufficiently marked and distinct, a competent fact to be submitted to the jury.^ For example, if the husband and wife were white and the child was a mulatto, it could not be doubted that illegitimacy would be the overwhelming conclusion.'^ But in cases less distinct this 352. To the same effect see Morris v. * Bosvile v. Attorney-General, 12 P. D. Davies, 3 Car. & P. 215, 427; Rex v. 177, including a consideration of Morris Luffe, 8 East, 193. v. Davis, 5 CI. & F. 163. See Pryor v. 1 Kleinert u. Ehlers, 33 Pa. 439 ; Van Pryor, 12 P. D. 165 ; Drennan v. Douglas, Aernam v. Van Aernam, 1 Barb. Ch. 375 ; 102 111. 341, 40 Am. E. 595. Stegall V. Stegall, 2 Brock. 256; Page c. ^ Whyte v. Whyte, 11 Scotch Sess. Gas. Dennison, 1 Grant, Pa. 377; Dennison w. 4th ser. 710. Page, 29 Pa. 420, 72 Am. D. 644 ; Phillips « Warlick v. White, 76 N. C. 175 ; S. V. Allen, 2 Allen, 453. See Wright v. v. Bowles, 7 Jones, N. C. 579 ; S. v. Britt, Hicks, 12 Ga. 155 ; Bowles v. Bingham, 2 78 N. C. 439. It was rejected in Jones v. Munf. 442, 5 Am. I). 497, 3 Munf. 599. Jones, 45 Md. 144. 2 Herring v. Goodson, 43 Missis. 392. ' And see Illinois Land, &c. Co. v. 8 Blackburn v. Crawfords, 3 Wal. 175. Bonner, 75 111. 315. 506 CHAP. XXXVII. J IN PEDIGREE AND LEGITIMACY. § 1178 evidence is often, perhaps commonly, rejected, — a question on which the decisions appear to be not quite uniform.^ § 1176. Begotten before Marriage, Born after. — As explained in a preceding chapter, a child begotten by the husband before his marriage and born afterward is in law legitimate ; besides which, there is a more or less strong presumption, varying spe- cially with the indications of his knowledge of the pregnancy, that in fact the husband is the father.^ Evidence is admissible in rebuttal of the presumption, the effect whereof will depend on its nature and the circumstances.^ § 1177. Marriage after Birth. — As somewhat considered in a preceding chapter,* under the civil law and by statutes in a part of our States, a marriage of the parents after the birth of a child renders it legitimate ; ^ but by the common doctrine, especially in England, such a child cannot take, as legitimate, real estate situated in a State or country where the laws do not permit legit- imacy to be in this way created.® Said Lord Brougham : " In deciding upon the title to real estate, the lex loci rei sitae must always prevail ; so that a person legitimate by the law of his birthplace, and of the place where his parents were married, may not be regarded as legitimate to take real estate by inheritance elsewhere." ^ But not all legal persons accept this limitation ; and on much consideration, and extensive citation of the authori- ties, the New York Court held that the legitimacy created by the post-birth marriage of the parents travels with the child for all purposes on his change of domicil.^ Again, — § 1178. ChUdreu of Void Marriage. — As seen in other con- nections, there are in a few of our States statutes in speci- 1 Clark V. Bradstreet, 80 Me. 454, 6 worth, 9 Ala. 965 ; Adama v. Adams, 36 Am. St. 221 ; P. v. Caruey, 29 Hun, 47. Ga. 236 ; Hawbecker v. Hawbecker, 43 2 Ante, § 491, 492 ; Best Ev. 4th Lond. Md. 516 ; Brock v. S. 85 Ind. 397 ; Laud- ed. § 349, p. 462 erdale Peerage, 10 Ap. Cas. 692. * S. u. Romaine, 58 Iowa, 46 ; Wilson « Smith v. Derr, 34 Pa. 126, 75 Am. D. V. Babb, 18 S. C. 59 ; Baker u. Baker, 13 641 ; Birtwhistle v. Vardill, 5 B. & C. 438 ; Cal. 87, and cases there cited; Stegall v. s. c. nom, Burtwhistle v. Vardill, 6 Bing. Stegall, 2 Brock. 256 ; Kleinert v. Ehlers, N. C. 385; Birtwhistle u. Vardill, 7 CI. & 38 Pa. 439 ; Page u. Dennison, 1 Grant, F. 895, s. c. Pa. 377 ; Dennison v. Page, 29 Pa. 420, 72 ' Fenton v. Livingstone, 3 Macq. Ap. Am. D. 644 ; Phillips v. Allen, 2 Allen, Cas. 497, 532. And see Shedden v. Pat- 453 ; Bailey v. Boyd, 59 Ind. 292. rick, 1 Macq. Ap. Cas. 535. * Ante, § 671. * Miller v. Miller, 91 N. Y. 315, 43 Am. 5 Carroll v. Carroll, 20 Tex. 731 ; Ash R. 669. Way, 2 Grat. 203; Hunter u. Whit- 507 § 1181 EVIDENCE OP MARRIAGE. [bOOK IV. fied circumstances making the children of invalid marriages legitimate.^ § 1179. Husband and Wife as Witnesses. — Though husband and wife are competent witnesses to their marriage,^ yet on " the broad ground of general public policy, affecting the children born during the marriage, as well as the parties themselves," ^ the courts, on a question of legitimacy, will not permit them, or one of them after the death of the other, to testify whether or not they had carnal access to each other during the period within which the child must have been begotten.* And this rule applies as well to an alleged intercourse before marriage, where the birth was after, as to the ordinary case.^ But they have suffered the wife and mother to testify on this issue, not that the husband did not have carnal commerce with her, but that another man had,® or had not,^ at a time when the conception might have taken place ; " by reason," said Lord Hardwicke, " of the na- ture of the fact, which is usually carried on with such secrecy that it will admit of no other evidence." ^ A fortiori, there- fore, — • § 1180. Denial in Pais — Admissions. — Proof of a mere denial of legitimacy by the supposed father, when not under oath, is not admissible against it ;^ but under special circumstances such evi- dence has been deemed competent in its favor.i" § 1181. Suit to determine Legitimacy. — In England, of late, there is an excellent statute (21 & 22 Vict. c. 93") by means of 1 Ante, § 621, 671, 726-728, 754; Lin- « Eex v. Rook, 1 Wils. 340. cecum V. Lincecnm, 3 Misso. 441. ' Warlick ». White, 76 N.C. 175, which ^ Ante, § 1049 ; Eex v. Bramley, 6 holds also that while her character for T. R. 330; Standen o. Standen, Peake, truthfulness may be impeached in reply, 32 ; Rex v. St. Peter's, Bur. Set. Cas. 25. her character for chastity cannot be. And 8 Rex V. Kea, U East, 132. see Morris v. Swaney, 7 Heisk. 591. * Eex V. Reading, Cas. temp. Hardw. ^ Eex v. Reading, supra, p. 82, 83. 79, 82 ; Patchett v. Holgate, 3 Eng. L. & » Bowles v. Bingham, 2 Munf. 442, 5 Eq. 100, 15 Jur. 308; Eex v. Sourton, 5 Am. D. 497. And see S. v. Watters, 3 Ire. A. & E. 180, 6 Nev. & M. 575 ; Page v. 455 ; P. v. Ontario, 15 Barb. 286. But see Dennison, 1 Grant, Pa. 377 ; Dennison v. Aylesford Peerage, 11 Ap. Cas. 1. Page, 29 Pa. 420, 72 Am. D. 644 ; Tioga M Kenyon v. Ashbridge, 35 Pa. 157 ; V. South Creek, 75 Pa. 433; Boykin v. Patterson v. Gaines, 6 How. U. S. 550. Boykin, 70 N. C. 262, 16 Am. R. 776; See, as to Louisiana, Dejol y. Johnson, 12 Mink c S. 60 Wis. 583, 50 Am. R. La. An. 853. See also Bennett v. Toler, 386. 15 Grat. 588, 78 Am. D. 638; Hitchins v, 6 Tioga V. South Creek, 75 Pa. 433. Eardley, Law Rep. 2 P. & M. 248 ; Gaines As to the _proofs of legitimacy in these v. New Orleans, 6 Wal. 642. cases under the Scotch laws, see Reid u, li Ante, § 153, note, p. 68. Mill, 6 Scotch Sess. Cas. 4th ser. 659. 508 CHAP. XXXVII.] IN PEDIGREE AND LEGITIMACY. § 1182 •which a person can have the question of his legitimacy deter- mined by the Divorce Oourt.^ § 1182. The Doctrine of this Chapter restated. Marriage is an element in pedigree and legitimacy. Yet hear- say evidence within the family is competent to prove a pedigree, though not a marriage. In a complicated case of legitimacy and pedigree, such evidence is admissible, yet not in all circumstances alone sufficient. In either case, a marriage may be shown as a presumption from cohabitation and repute. Common-law legiti- macy results only from valid marriage, while yet if the husband has access to the wife, and at the same time another man com- mits adultery with her, a child born will be conclusively pre- sumed to be the husband's, even as against strong probabilities to the contrary. But if the husband was impotent, or at the time of conception was absent, or if for any other reason he could not have been the father, the law will not deem him such. Hus- band and wife cannot on an issue of legitimacy testify whether or not they had intercourse from which offspring might proceed, and still the wife on such issue may state that she had or had not the like intercourse with another man. 1 Shedden v. Attorney-General, 2 Swab. & T. 170; Frederick v. Attorney-General, Law Rep. 3 P. & M. 196. 509 1185 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK T.^ BOOK V. NON-LEGAL SEPAEATIONS AND BEEACHES OP MAEEIAGE EIGHTS AND DUTIES. CHAPTER XXXVIII. THE HUSBAND AND WIFE'S MUTUAL SERVICES AND SUPPORT. § 1183. In other Connections — will be considered the support which the wife may obtain through a judicial proceeding directly between herself and husband. The doctrine for this series of chap- ters is that — § 1184. Doctrine defined. — By the rules of the common law, slightly yet not greatly modified by those of the equity tribunals, marriage confers on the husband the right to the companionship and services of the wife, and compels him to protect and support her while in the substantial discharge of her duties.^ On the other hand, she is under no duty to support him, whatever his neces- sities, and whatever separate property she may possess.^ Not even need she support herself.^ § 1185. Modern Statutes, — the chief object of which is the protection of the wife in her property-rights, and the enlarge- ment of her power of business-doing, have not greatly changed this doctrine.* 1 1 Bishop Mar. Womeii, § 49, 58, 887, relation a little " peculiar,'' and the fact 892; 2 lb. §72, 158; Dallas, &c. Ry. i;. that wives have played few or no startling Spicker, 61 Tex. 427, 48 Am. R. 297. pranks under them may be attributed ^ 1 Bishop Mar. Women, § 49, 892. to the goodness of the sex rather than to 2 1 lb. § 894-897. the wisdom of the new laws. For example, * Though these statutes are similar, under the combined common and statutory they are not identical in our States, laws of some of our States, a wife may Some of them have left the marriage set up business for herself, board at home, 510 CHAP. XXXVIII.] MUTUAL SERVICES AND SUPPORT. §1188 § 1186. Form of Husband's Liability. - — To render the husband's duty of support to his wife readily enforceable, the law invests her at the marriage with an irrevocable agency to pledge his credit for whatever is necessary to her maintenance, unless he provides other means.^ In another form of the same proposition, the law creates a promise by him to pay any third person who may furnish necessaries to her, at her request, directing them to be charged to him.^ And — § 1187. Infancy of Husband. — An infant husband is under the same obligation as an adult to give his wife needful sustenance.^ More particularly, — § 1188. Liability to Third Person. — A husband who omits to furnish his wife with such sustenance as, considering his rank and fortune, a jury under instructions from the court shall deem necessary for her, is liable at law to any third person who at her request provides it, undertaking to look to him for payment.* But a husband who has himself made for his wife needful and proper provision, which she declines to accept, is under no duty to pay a third person who delivers to her what, except for this pro- vision, would be necessaries.^ compel her hnsband to supply the table, do the cooking, take care of the babies, pay the house rent, provide his own per- sonal expenses, and shoulder every other possible pecuniary obligation, while she lays up as her separate property all her earnings, and all the fruits of her skill and toil; even though he is a bankrupt, disabled in body and mind, and without a friend to help him. See 2 Bishop Mar. Women, § 727. There are States in which legislation has left this doctrine a little less absurd. And see 2 lb. § 608-610, 645, 698, 741, 808, 809. By the Dakota Compiled Laws of 1887, § 2588, "The husband must support himself and his wife out of his property or by his labor. The wife must support the husband, when he has not deserted her, out of her sepa- rate property, when he has no separate property, and he is unable, from infirmity, to support himself." By 1 McClain's An- notated Code of Iowa, of 1888, § 3405, " The expenses of the family and the edu- cation of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or separately." 1 Bishop Con. § 1043 ; 2 Bishop Mar. "Women, § 403. 2 Bishop Con. § 235. 8 Bishop Con. § 910; Cantine v. Phil- lips, 5 Harring. Del. 428. * Johnston v. Sumner, 3 H. & N. 261 ; Atkins V. Garwood, 7 Car. & P. 756 ; Shel- tou V. Pendleton, 18 donn. 417; Montague V. Benedict, 3 B. & C. 631 ; Lane v. Iron- monger, 13 M. & "W. 368 ; Oilman v. An- drus, 28 Vt. 241, 67 Am. D. 713; Monroe V. Budlong, 51 Barb. 493 ; Keller v. Phil- lips, 39 N. Y. 351 ; Day v. Burnham, 36 Vt. 37 ; Dyer v. East, 1 Vent. 42, 1 Mod. 9; Robison v. Gosnold, 6 Mod. 171 ; Teb- bets V. Hapgood, 34 N. H. 420 ; S. v. Ean- sell, 41 Conn. 433; Raynes v. Bennett, 114 Mass. 424; Eoney v. Wood, 1 Wils. Ind. 378 ; Markley v. Wartman, 9 Philad. 236 ; Daubney v. Hughes, 3 Thomp. & C. 350; Cartwright v. Bate, 1 Allen, 514, 79 Am. D. 759. 6 Holt V. Brien, 4 B. & Aid. 252 ; Sea^ ton V. Benedict, 5 Bing. 28; Morgan i: Hughes, 20 Tex. 141 ; Etherington v. Par- rot, 2 Ld. Raym. 1006; Bevier v. Gallo- way, 71 111. 517 ; Suiter v. Mustin, 50 Ga. 242 ; Barr v. Armstrong, 56 Mo. 577 ; Cat- 511 § 1189 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. § 1189. What are Necessaries. — There is a similarity between necessaries for a wife and for an infant, — the latter particularized in the author's " Contracts." ^ The former will vary with the husband's rank and fortune.^ Yet whatever his circumstances, the wife is entitled to food and clothing to preserve her life and health, and to medical attendance and nursing when sick. And the doctrine applicable to the ordinary case is that necessa- ries are such food, apparel, or medicine, or such medical attend- ance or nursing, or provided means of locomotion, or provided habitation and furniture, or such provision for her protection in society, and the like, as the husband, considering his ability and standing, ought to furnish to his wife for her sustenance, for the care of her health, and for her comfort.^ The rule, therefore, is not the same as for alimony, to be explained in the second volume. lin V. Martin, 69 N. T. 393 ; Rea v. Durkee, 25 111. 503. 1 Bishop Con. § 909. 2 Manby v. Scott, 1 Sid. 109, 128, 1 Lev. 4, 1 Mod. 124 ; Tliorpe v. Shapleigh, 67 Me. 235 ; Eaynes v. Bennett, 114 Mass. 424 ; KeUer v. Phillips, 39 N. Y. 351. 8 Warner v. Heiden, 28 Wis. 517, 519, 9 Am. E. 515; Manby v. Scott, supra, and 2 Smith Lead. Cas. 245 and note ; 2 Bright Hus. & Wife, 5 et seq. ; Dyer v. East, 1 Vent. 42, 1 Mod. 9 ; 1 Selw. N P. Phil. ed. of 1844, 714 et seq., 1 Steph. N. P. 718 et seq. ; Garbrand v. Allen, Comb. 450; Morton v. Withens, Skin. 348 ; Seaton v. Benedict, 5 Bing. 28 ; Montague v. Baron, 5 D. & E. 532 ; Mon- tague V. Benedict, 3 B. & C. 631, s. c. ; Montague v. Espinasse, 1 Car. & P. 356, 502, s. c. • Atkins v. Curwood, 7 Car & P. 756; Clifford v. Laton, 3 Car. & P. 15, Moody & M. 101 ; Hunt v Blaquiere, 3 Moore & P. 108, 5 Bing. 550 ; Eeeve v. Conyngham, 2 Car. & K. 444; Read v. Legard, 6 Exch. 636, 15 Jur. 494, 4 Eng. L. & Eq. 523 ; Lane v. Ironmonger, 13 M. & W. 368 ; Harris v. Lee, I P. Wms. 482 ; Anonymous, 2 Show. 132 ; Dennys v. Sar- geant, 6 Car. & P. 419; Etherington v. Parrot, 2 Ld. Eaym. 1006, 1 Salk. 118; Cany v. Patton, 2 Ashm. 140 ; Shelton v. Hoadley, 15 Conn. 535; Black i\ Bryan, 18 Tex. 453; McCIallen v. Adams, 19 Pick. 332, 31 Am. D. 140; Zeigler v. 612 David, 23 Ala. 127; Smith u. Davis, 45 N. H. 566; Ottaway v. Hamilton, 3 C. P. D. 393 ; Eaynes v. Bennett, 114 Mass. 424. See Grant v. Dabney, 19 Kan. 388, 27 Am. E. 125 ; Huff v. Bournell, 48 Ga. 338'; S. V. Eansell, 41 Conn. 433, In Breinig n. Meitzler, 23 Pa. 156, 160, Black, C. J. ob- served : " What would be extravagant in one man's wife might be very economical in another. The best way to determine what articles of dress a discarded wife may supply herself with at tlie expense of her husband, is to ascertain what a pru- dent woman would expect, and a good husband would be willing to furnish, if the parties were living harmoniously to- gether. This would depend on a variety of circumstances, and on the value of the husband's estate among others. The short as well as the fair way of dealing with such a question is to call a witness who knows the circumstances, style of living, and social position of the husband and his family." Medical Attendance. — It is familiar and common doctrine that medi- cal attendance in sickness is among the necessaries Bevier v. Galloway, 71 111. 517, Harttmanu v. Tegart, 12 Kan. 177; Thompson v Thompson, 79 Me. 286. But, Clairvoyant. — In Wood v. O'Kelley, 8 Cush. 406, it was held that a husband is not liable, as for necessaries, to pay a clairvoyant doctor called in by the wife in her illness. Said the learned judge : " The CHAP. XXXVIII.] MUTUAL SERVICES AND SUPPORT. § 1190 § 1190. Money as Necessaries — Other Substitute. — Neither money, which will buy necessaries, nor an article which might be used as a substitute for them, not being such in fact,^ is, at law, deemed necessaries.^ And one who lends a destitute wife money wherewith to purchase them, and which she actually expends for them, cannot recover it of the husband in a suit at law.** But in law does not recognize the dreams, visions, or revelations of a woman in a mesmeric sleep as necessaries for a wife, for which the husband, without his consent, can be held to pay. These are fancy articles, which those who have money of their own to dispose of may purchase, if they think proper, but they are not necessaries, known to the law, for which the wife can pledge the credit of her absent husband." p. 408. Upon principle, if the wife is sick, needing a physician, and the husband provides her none, it would be a hard measure to com- pel her, as the first step, to apply to a bench of judges for direction whom to employ. Now, assuming that by the law of the State a clairvoyant physician can collect an ordinary bill for medical attend- ance, — is it properly a conclusion of law, in distinction from fact, that the wife is not competent to select a physician of this particular sort, but the husband is ? If the wife, left uncared for by the husband, employs the clairvoyant as a nurse, how is it 1 A wide field of inquiry here lies open. The just doctrine is believed to be, that the Maker of us all has committed to each one the care of his own body and soul; and courts and juries should recognize this fact, except where a statute has pro- vided the contrary, or the party has sur- rendered the care to another. How far marriage takes from the woman the right to decide in what manner she shall be at- tended in sickness, is, it may be, a ques- tion not in all respects settled as to the case wherein the husband provides attend- ance of his own choosing. But we have seen that he cannot thrust upon the wife, against her will, a surgical operation, though advised by a surgeon of his choice. Ante, § 787, 788. A fortiori, therefore, as surgery is a science and the administering of medicine is not, so that a husband may judiciously assume that his surgeon's ad- vice is correct, yet not so confidently that his doctor's is, the same rule should ex- VOL. I. — 33 elude him from compelling the wife to take against her own judgment the medi- cine of his selecting. Therefore the right to say who shall be her physician is, in reason, absolutely hers. She may exer- cise it as she wQl. A court, a jury, or even the legislature is not in principle justified in restraining her from carrying out in this what every other person may regard as her mere whim. And if the forsaking husband does not pay the bill, he should be compelled. I know this is a sort of question on which excellent people differ. Formerly, and the old laws still remain to some extent in Europe, the State undertook to provide for men's souls by compelling them to some form of reli- gion which alone, it was deemed, would make them eternally happy. The en- forcement of this idea has made a purga- tory on earth, but with us it is abandoned. Still, in various forms, we have in some of our States the idea applied to the body. Surely the body, which soon will perish, is of no more value than the immortal part. And the sooner we extend to all of mature years the right to judge for them- selves what is for their good, so long as they do not interfere with their neighbors, or do what may corrupt the public morals, the better. Pew in Church. — A pew in a church has been adjudged not to be a necessary. "It is said in the books," observed Park, J. "that necessaries con- sist only of food, drink, clothing, washing, physic, instruction,' and a suitable place of residence." And by instruction is not meant religious instruction. St. John's Parish v. Bronson, 40 Conn. 75, 76, 16 Am. E. 17. 1 Thorpe v. Shapleigh, 67 Me. 235. 2 In re Welch, 5 Ben. 230. 3 Knox V. Bnshell, 3 C. B. n. s. 334 ; Walker v. Simpson, 7 Watts & S. 83. And see Zeigler v. David, 23 Ala. 127 ; Gilbert v. Plant, 18 Ind. 308. 513 § 1193 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK T. equity lie is permitted to stand in the place of the person who furnished them ; so that when they have been procured with the money, he may recover their value of the husband.^ Still, — § 1191. Who supply. — The person who supplies the necessaries need not, to maintain a suit at law against the husband, be a tradesman. Any other one may do it with equal effect.^ § 1192. Town supporting Wife as Pauper. — The Massachusetts Court held that a town may recover of the husband what was strictly necessary to support the wife as a pauper, but nothing for what he is required to do further, by reason of his better condi- tion and standing.^ In New York, not so much as this was con- ceded; it being held that if the husband could support his wife, she was not a pauper, therefore the town could recover nothing.* In Ohio, the husband is liable to the town.'^ § 1193. Wife as Witness in Suit for Necessaries. — The com- mon-law doctrine is familiar that in general husband and wife cannot be witnesses in each other's suits. It is founded chiefly on public policy.^ The criminal law, for the protection of the parties in this close relationship, excepts cases of personal violence by the one to the other.'^ This exception comes from necessity. The like necessity extends, in reason, to a civil suit by a third person against the husband for necessaries furnished the wife. Else he could drive her from him by secret abuse, and compel her to starve. Still there are greater technical objections to allowing her to testify in civil cases of this sort than in criminal. And in Massachusetts, prior to statutes altering the rules of evidence, it was denied.^ In a habeas corpus case concerning the custody of a 1 Harris v. Lee, 1 P. Wms. 482, 483 ; McDuffie v. Greenway, 24 Tex. 625 ; Lucas Deare v. Soutten, Law Rep. 9 Eq. 151 ; u. Brooks, 18 Wal. 436, 452, 453 ; Weikel Walker o, Simpson, supra ; Jenner v. v. Probasco, 7 Ind. 690 ; Smead v. William- Morris, 3 De G. P & J. 45, 1 Drewry & son, 16 B. Monr. 492; Pryor v. Ryburn, S. 218, 7 Jur. N. s. 375. And see Marlow 16 Ark. 671 ; Tulley v. Alexander, 11 La. V. Pitfeild, 1 P. Wms. 558. But see May An. 628; Kelley v. Proctor, 41 N. H. 139; V. Skey, 16 Sim. 588, 589, the distinction Seargent v. Seward, 31 Vt. 509; Bradford in which was not followed in the later v. Williams, 2 Md. Ch. 1 ; Copous v. and more authoritative case of Jenner v. Kauffmau, 8 Paige, 583 ; Blain v. Patter- Morris, supra. son, 47 N. H. 523. 2 Gill V. Read, 5 R. I. 343, 73 Am. D. ' 1 Bishop Grim. Proced. § 1153; 2 lb. 73 ; Mayhew v. Thayer, 8 Gray, 172. § 69, 649. ' Monson W.Williams, 6 Gray, 416. ' Burlen v. Shannon, 14 Gray, 433. * Norton v. Rhodes, 18 Barb. 100. See Cooper v. Lloyd, 6 0. B. n. s. 519; ^ Howard v. Whetstone, 10 Ohio, 365 ; Downing v. Rugar, 21 Wend. 178, 34 Am. Springfield !;. Demott, 13 Ohio, 104. D. 223; Jacobs v. Whitcomb, 10 Cush. 5 Hasbrouck v. Vandervoort, 5 Seld. 255 ; Johnson v. Sherwin, 3 Gray, 374. 153 ; Bird v. Davis, 1 McCarter, 467, 478 ; 514 CHAP. XXXVIII.] MUTUAL SERVICES AND SUPPORT. § 1193 child, Chancellor Walworth, in New York, permitted the wife and mother to testify to the husband's cruelty, compelling her to leave him. " She is permitted," he said, " to be a witness in most of the cases excepted from the general rule, from principles of public policy, in order that he may be restrained from committing outrages against her in the retirement of the family circle, under the supposition that he may do so with impunity. Whenever, therefore, the policy or necessity of admitting her as a witness against her husband is sufficiently strong to overbalance the prin- ciple of public policy upon which the general rule of exclusion is based, she ought to be received as a witness, if she has no per- sonal interest adverse to his which would of itself form a ground for her exclusion." ^ In most of our States, the capacity to bo witnesses has been so much enlarged by statutes as to render a recurrence to the common-law rules almost superfluous ; and at least in some of them, either by force of these statutes or by in- terpretations of the common law, the wife can testify in the suit we are now considering. She can, for example, in Wisconsin.^ 1 P. V. Mercein, 8 Paige, 47, 49, 52, 53. But see Johnson i'. Johnson, 1 1 Cent. L. J. 478. 2 Back V. Parraely, 35 Wis. 238. An- other ground on which the admissibility of the wife may be put is that of agency. As to which see Tacket v. May, 3 Dana, 79. The husband is charged, if at all, because she was his agent to procure the necessaries. And even where the husband is a party, the wife may be a witness to prove her own agency. Town v. Lam- phire, 37 Vt. 52; Birdsall v. Dunn, 16 Wis. 235. See Oreutt <^. Cook, 37 Vt. 515; Hobby v. Wisconsin Bank, 17 Wis. 167. In construing the statutes on the question discussed in the text, we must keep in view the distinctions. Thus, in an ordinary civil case the wife of a party cannot be a witness though a statute pro- vides that no one shall be excluded be- cause of being a party or interested. " The objection to a wife's testifying on behalf of her husband," said Strong, J. "is not and never has been that she has any interest in the issue to which he is a party. It rests solely on public policy, so that the statute has no application." Lucas V. Brooks, 18 Wal. 436, 452, 453. And to the like effect, or as otherwise relevant on various forms of the statutory provision, see McKeen v. Frost, 46 Me. 239; Bliss v. Franklin, 13 Allen, 244; Cram v. Cram, 33 Vt. 15; Dawley v. Ayers, 23 Cal. 108 ; Rice v. Keith, 63 N. C. 319; Russ v. War Eagle, 14 Iowa, 363; Barber v. Goddard, 9 Gray, 71 ; Ray I'. Smith, 9 Gray, 141 ; Oreutt v. Cook, 37 Vt. 515; Hemphill c. Townsend, 7 Ala. 853 ; Abrams v. Howard, 23 Cal. 388 ; Merriam v. Hartford, &c. Rid. 20 Conn. 354, 52 Am. D. 344 ; Blake v. Graves, 1 8 Iowa, 312; Jordan v. Henderson, 19 Iowa, 565 ; Thompson v. Wadleigh, 48 Me. 66 ; Bucknam v. Perkins, 55 Me. 490 ; Fowle w. Tidd, 15 Gray, 94; Burke v. Savage, 13 Allen, 408 ; Lockhart v. Luker, 36 Missis. 68 ; Funk v. Dillon, 21 Mo. 294. But in the sort of case now under consideration, the public policy is reversed. It requires that the wife be admitted to testify. And the rule should be that she may be ad- mitted, in whatever State the suit is, unless some technical objection appears sufficient in force to overcome the public policy and necessity which demand her evidence. See Farrell v. Ledwell, 21 Wis. 182; Lewis v. McDougal, 17 Wis. 517. 515 § 1197 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK T, §1194. Prior Judgments — may iu proper circumstances be admissible in evidence in these cases.^ § 1195. Husband's Power over Expenditures. — When the par- ties are in cohabitation, the husband is the head of the family, and if he chooses he may take the providing for it into his own hands, even excluding his wife from all share therein.^ And, — § 1196. Forbidding Tradesman. — While unquestionably this right carries with it the privilege of determining from what trades- men the family supplies shall be procured,^ there are authorities which seem further to hold that if the husband forbids every tradesman to supply his family, they must starve.* " For," said Lord Holt, " the wife has no power originally to charge her hus- band, but is absolutely under his power and government, and must be content with what he provides ; and if he does not provide necessaries, her remedy is in the Spiritual Court." ^ But this, at most, was only a dictum of an eminent judge, uttered in a case where the wife was a drunken spendthrift, in the habit of pawn- ing her clothes for drink, and the husband had made other and sufficient provision for her, and the goods were furnished against his caution to the contrary. Even as dictum, the better reporter Salkeld puts it in a milder way.^ It is in flat contradiction of the common and established doctrine that the husband is compel- lable to supply his wife with necessaries, and that when he does not himself, any other person may, and enforce payment from him.'^ So is the question in strict legal right ; but — § 1197. "Wife presumed Agent in Fact. — It being essential to the comfortable living together of married parties, and in prac- tice nearly universal, for the husband to concede to the wife more or less control over household affairs and expenses, her agency therein will to some degree be presumed in the absence of proof to the contrary. The reported cases proceed so much on their special facts as to render the deduction of a rule not quite easy ; 1 Bnrien v. Shannon, 3 Gray, 387; * l Selw. liT. P. 292; Etherington i;. Burlen v. Shannon, 14 Gray, 433; Day v. Parrot, 1 Salk. 118, 2 Ld. Eaym. 1006; Spread, Jebb & Bourke, 163; Hubert v. Boulton v. Prentice, 1 Selw. N. P. 298. Pera, 99 Mass. 198, 96 Am. D. 732 ; Need- 6 Etherington v. Parrot, 2 Ld. Raym. ham V. Bremner, Law Rep. 1 C. P. 583 ; 1006. Iventz V. WaUace, 17 Pa. 412, 55 Am. D. « s. c. 1 Salk. 118. 569. ' Ante, § 1184, 1186-1188; Hughes y. 2 Post, § 1618. Chadwiek, 6 Ala. 651. 8 Post, § 1205 ; Bevier v. Galloway, 71 m. 517. 616 CHAP. XXXVIII.J MUTUAL SERVICES AND SUPPORT. § 1197 but as general doctrine, subject to modifications in tlae partic- ular instance, it is, in the words of Bay ley, J., that " cohabitation is presumptive evidence of the assent of the husband " to being bound by the wife's contract for " necessaries " ^ for herself and family, nothing more.^ In this connection,^ the word " neces- saries " appears to include things prima facie such, though, un- knowu to the tradesman, the husband has supplied them ; * yet if she obtains herself an over-supply, whether from one dealer or many, the agency will not be presumed.^ " The rule," said Lord Abinger, C. B., " is founded on common sense ; for a wife would bs of little use to her husband in their domestic arrangements \l she could not order such things as are proper for the use of a house, and for her own use, without the interference of her husband." ^ The limits of this doctrine seem not in all respects to be absolutely defined. Where it was expressly understood be- tween a husband and his wife that she was not to pledge his credit, and he supplied her otherwise, he was in an English case held not to be answerable to a tradesman of whom she procured a suitable article of dress, — the latter neither knowing of this arrangement nor having before dealt with her.'^ But it is not certain the same would have been adjudged had the article been a steak for breakfast.* If tlie husband notifies the tradesman in advance not to trust his wife, plainly he is not liable except for necessaries which he does not himself provide. For the presump- tion of this section is of fact ; the law-created agency extends only to necessaries as to which the husband is delinquent.^ 1 Montague v. Benedict, 3 B. & C. 631, ^ Lane v. Ironmonger, supra; Atkins 635. V. Curwood, 7 Car. & P. 756. And see 2 " If a man and his wife live together, Reneaux v. Teakle, 8 Exch. 680, 20 Eng. it matters not what private agreement L. & Eq. 345. they may make, the wife has all usual •> Emmett v. Norton, 8 Car. & P. 506, authorities of a wife." Pollock, C. B. in 510. Johnston v. Sumner, 3 H. & N. 261, 266 ; ' Debenham v. Mellon, 5 Q. B. D. 394 ; s. p. Ruddock r. Marsh, 38 Eng. L. & Eq. afBrmed, 6 Ap. Cas. 24. And see 10 Cent. 515, 1 H. & N. 601. And see Etheringtou L. J. 341. V. Parrot, cited and commented on in the ^ And see Rigoney v. Neiman, 73 Pa. last section; Lane v. Ironmonger, 13 M. 330; Gordon v. Sempill, Mor. Diet. 1 App. &AV". 368; Green v. Sperry, 16 Vt. 390, (H. & AY. No. 4) 10; Cook v. Ligon, 54 42 Am. D. 519; Shelton v. Hoadley, 15 Missis. 368; Keller v. Phillips, 39 N. Y. Conn. 535; Pnrlong v. Hysom, 35 Me. 351; Connerat v. Goldsmith, 6 Ga. 14; 332 ; Eredd v. Eves, 4 Harring. Del. 385 ; Phillipson v. Hayter, Law Rep. 6 C. P. Gotts V. Clark, 78 111. 229 ; McMillen o. 38. Lee, 78 111. 443 ; Clark K. Cox, 32 Mich. 204. » 2 Bishop Mar. Women, § 402, 403; ^ Contrary to ante, § 1188. Savage v. Davis, 18 Wis. 608; Debenham * Ruddock V. Marsh, supra. u. Mellon, 6 Ap. Cas. 24. 517 § 1202 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. § 1198. Distinguished. — The reader should distinguish between the two sorts of presumed agency, — the one, conferred by the marriage itself, and not within the husband's power to withdraw ; the other, presumed from the cohabitation and its attendant cir- cumstances, always controllable or revocable by him. Again, by express terms, the wife may be made by the husband his agent in things outside of the marriage, the same as any other person. ^ § 1199. Liability by Estoppel. — This liability, whereby one may be compellable to pay for necessai'ies furnished to a woman whom he falsely holds out to be his wife, is explained in a preceding chapter.2 Of a like sort is — § 1200. Accepting Benefit of Purchase. • — As in other cases of assumed and unauthorized agency,^ the husband may ratify what the wife has done.* Such ratification occurs, for example, where he knowingly permits an article wrongfully purchased by her on his credit to come into the family use.^ § 1201. Separation. — The foregoing expositions do not take into the account any special effects produced by a separation of tiie parties. To some extent, " where," says Lord Abinger, they are " separated from each other, and do not live in the same house, new considerations arise." ^ This branch of the subject will be for the next chapter. ' § 1202. The Doctrine of this Chapter restated. Marriage, by the rules of the common law, invests the husband with all such property of the wife as is available for the support 1 On the general question of the wife's Mackiuley, 2 Miles, 220; Cox v. Hoffman, agency for the husband, see 2 Bishop Mar. 4 Dev. & Bat. ISO ; Shelton v. Pendleton, "Women, § 378-382, 400-414. 18 Conn. 417 ; Mulford ;;. Young, 6 Ohio, 2 Ante, § 1150; Hoyle u. Warfield, 294; Minard w. Mead, 7 Wend. 68; Dacy 28 lU. Ap. 628 ; Gerhold v. "Wyss, 13 v. New York Chemical Manufacturing Co. Neb. 90. 2 Hall, 550; Spencer v. Tisue, Addison, 8 Bishop Con. § 1091-1110. 316; Shoemaker v. Kunkle, 5 Watts, 107; • Millard v. Harvey, 34 Beav. 237 ; Webster v. McGinnis, 5 Binn. 235 ; Cany Connolly v. Autenrieth, 4 La. An. 163; v. Patton, 2 Ashm. 140; Wray v. Cox, Roberts v. Wilkinson, 5 La. An. 369 ; 24 Ala. 337 ; Sawyer v. Cutting, 23 Vt. Shaw V. Emery, 38 Me. 484. 486 ; Gill v. Read, 5 R. I. 343, 73 Am. D. * Rennick v. Ficklin, 3 B. Monr. 166. 73; Reese w. Chilton, 26 Mo. 598; Krebs And see Gray v. Otis, 11 Vt. 628; Green v. O'Grady, 23 Ala. 726, 58 Am. D. 312; V. Sperry, 16 Vt. 390, 42 Am. D. 519; Casteel v. Casteel, 8 Blackf. 240,44 Am. Benjamin v. Benjamin, 15 Conn. 347, 39 D, 763 ; Read w. Legard, 4 Eng. L. & Eq. Am. D. 384; Mackinley v. McGregor, 3 523, 6 Exch. 636. Whart. 369, 31 Am. D. 522 ; Abbott v. « Emmett v. Norton, 8 Car. & P 506. 618 CHAP. XXXVIII.] MUTUAL SERVICES AND SUPPORT. § 1202 of herself and family. Her services are due to him, and if she renders them to another he is entitled to the compensation. In return for which, he is placed under the legal duty to maintain her during life, and forbidden so to dispose of his estate as to deprive her of the widow's portion at his death. So long as he provides her, through such tradesmen and in such manner as he chooses, with what in view of his pecuniary ability and social standing the law deems to be needful for her, she can have noth- ing further of him against his will. If he withholds such pro- vision, any person who furnishes the necessaries on her order and with instructions to charge them to her husband, may recover of him their value. If no one will trust her on his account, she is at liberty to starve, or to apply for maintenance as a pauper. In the present age of the world's enlightenment, these rules seem severe. Yet there has not been any attempt by legislation to charge the husband on her order with anything more than neces- saries. Almost everywhere within the domain of the common law, statutes have preserved to the wife her antenuptial property, and entitled her generally or in special circumstances to her earn- ings, and imparted to her some power of contract. Through a not unnatural inadvertence, this class of legislation has in some localities been carried so far as practically to reverse the par- ties, making the wife the master and the husband the servant. Largely, under our modern statutes, the married parties may by combining contract debts which neither can be compelled to pay, and become rich at the expense of creditors. 519 § 1205 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. CHAPTER XXXIX. THE SEVERAL PAROL SEPARATIONS AND THEIR JUSTIFICATIONS AND CONSEQUENCES. § 1203. Introduction. 1204-1214. Temporary Absences. 1215-1227. Husband's Fault. 1228-1234. Wife's Fault. 1235-1239. Mutual Consent. 1240-1251. Common to All. 1252. Doctrine of Chapter restated. § 1203. How Chapter divided. — We shall consider, I. Tempo- rary Absences ; II. Separations through the Fault of the Husband; III. Separations through the Fault of the Wife ; IV. Separations through Parol Mutual Consent; V. Remaining Doctrines Common to the Several Separations. I. Temporary Absences. § 1204. Doctrine defined. — Temporary absences of the mar- ried parties from each other, including the husband's being away on business, are among the ordinary incidents of life, and they do not disarrange their legal relations. In mere evidence, a pre- sumption of the wife's agency ^ may arise from his thereupon leav- ing things and affairs in her possession, but the law confers on her no new authority to bind him. Thus, — § 1205. Forbidding Tradesmen. — As when the husband Is at home,^ so also when he goes temporarily away, leaving his wife there, it is legally in his power, and in some extreme circum- stances morally so, having made due provision for her wants, to forbid all persons, or any particular one, to furnish her anything on his account.^ While the law compels him to take care of his 1 Ante, § 1197. ' Holt v. Brien, 4 B. & Aid. 252. And 2 Ante, § 1195, 1196. Bee Reneaux v. Teakle, 8 Exch. 680, 20 Eng. L. & Eq. 345. 520 CHAP. XXXIX.] THE PAROL SEPARATIONS. § 1209 family, "he has a right," in the words of Sutherland, J., in a case involving the same principle, " to supply them in such reasonable manner as he may think proper ; he can employ such mechanics and storekeepers as he chooses, and can prohibit all others from giving them credit on his account." ^ But — § 1206. Agency presumed from the absent Hush ancTs voluntarily leaving Ms Wife and Property together : — General. — In the absence of anything expressly appearing to the contrary, if for a temporary purpose a husband leaves his home and appoints no person specially to look after his domestic affairs and effects, and there is no one other than his wife accustomed to do this, the presumption is that he means her to act, to some degree, as his agent therein. The extent of the agency will de- pend upon the length of the contemplated absence, and the other circumstances of the particular case,^ — a mixed question of law and fact.^ § 1207. To protect — Not sell or destroy. — The presumption commonly is, that the wife may protect and preserve the prop- erty, not sell or destroy it. But even the power of preservation carries with it in some circumstances the right of disposition.* And — § 1208. Legal Defence of Property. — A husband being away on military service, and proceedings being instituted to confis- cate his property, the wife was adjudged competent to employ counsel to make the proper and usual defence, and charge him therefor.^ Again, — § 1209. Carrying on Husband's Business. — A baker went tem- porarily away, leaving his wife and bakery behind. Thereupon she carried on the business in her own name. She sold some of the fixtures, taking promissory notes payable to herself, and afterward transferred them in discharge of a debt which she had contracted about the business. And it was held that she had 1 Kimball v. Keyes, 11 Wend. 33, 34. Church v. Landers, 10 Wend. 79 ; Edgerly And see Morgan v. Hughes, 20 Tex. 141 ; „. Whalan, 106 Mass. 307. Harshaw v. Merrj-man, 18 Mo. 106 ; Mott 3 Savage v. Davis, snpra, and the other o. Comstock, 8 Wend. 544. cases in the above and succeeding notes. 2 Savage v. Davis, 18 Wis. 608 ; Meader And see Plimmer v. Sells, 3 Nev. & JT. 422. V. Page, 39 Vt. 306; Brouer !■. Vanden- * Buford i.. Speed, 1 1 Bush, 338; Fisher bnrgh, 31 Barb. 648 ; Schindelf. Schindel, v. Conway, 21 Kan. 18, 30 Am. R. 419. 12 Md. 108; Cheek v. Bellows, 17 Tex. And see Smith v. Stephenson, 45 Iowa, 613, 67 Am. D. 686 ; Fisher ». Conway, 21 645. Kan. 18; Buford v. Speed, 11 Bush, 338; 6 Buford v. Speed, 11 Bush, 338. 521 § 1210 NON-LEGAL SEPARATIONS AND BREACHES. _ [BOOK V. no authority of law to transfer the notes, but the question was of evidence for the jury. Goldthwaite, J., explained as follows : " The wife, in the absence of the husband, may have a general authority to exercise the usual and ordinary control over the property left in her possession by him, which must be controlled by some one ; unless the presumption of this authority is rebutted by proof that he had constituted some other person his agent for that purpose.^ But the sale of the husband's effects may be out- side of the usual and ordinary control of them ; and whether it is so or not must depend upon the nature of the property, the length of the absence, and perhaps other circumstances. If the husband went to California, leaving the wife to carry on his plan- tation during his absence, it would not follow, as a presumption of law, that he had given her authority to sell and dispose of his slaves, and transfer the notes received in payment for them. So in the present case, although the husband may have consented that his wife might carry on the business of the bakery in her separate name, that fact does not create a legal presumption that she was authorized to transfer the notes received fi"om the sale of the fixtures, which in law were payable to her husband ; and that they were transferred in payment of a debt contracted by her in the course of the separate business can have no influence. The question is purely one of authority, so far as she is con- cerned." ^ There are other cases more or less confirmatory of this view of the law.^ § 1210. Presumption restated — Paying Debts. — A Connecticut formula of the doctrine is, that where a husband goes temporarily from home, leaving wife and effects behind, she shall be presumed to have such power over the effects as wives commonly have in like circumstances ; together with the full authority which any other agent left in charge of them and the business connected therewith would under the general law of agency possess. So that a wife thus in charge was held not authorized to permit a creditor who had attached some standing grass to cut and sell it in payment of the debt ; and this liaving been done, the creditor was adjudged liable to the husband in trespass. The authority 1 Referring to Church u. Landers, 10 " Casteel u. Casteel, 8 Blackf. 240, 44 Wenil. 79. Am. D. 763 ; Chamberlain u. Davis, 33 2 Krebs v. O'Grady, 23 Ala. 726, 732, N. H. 121. 58 Am. D. 312. 522 CHAP. XXXIX. J THE PAROL SEPARATIONS. § 1211 was neither common to wives, nor within the general law of agency for like circumstances.^ We have other cases more or less distinct to this form of the doctrine.^ On the other side, the Vermont Court arrived at the contrary result on facts similar to these, from the principle that besides the general authority of the wife, she has when thus left with the effects a presumed power, in the words of Redfield, J., over " any such extraordinary occur- rences as it might have been anticipated would sometimes occur." ^ § 1211. License as to Husband's Land. — According to another Connecticut case, the wife, merely as such, has no power to re- voke the husband's license to one to enter on his land. Even where, on leaving home, he told her to forbid all persons going upon the land to hunt, a license previously given was deemed not to be revoked by her inhibition, where she did not state her au- thority, and none appeared except the mere fact of her being the wife. Said McCurdy, J. : " Her act would not of itself convey any intimation of the will of her husband. The defendant might well suppose that of her own motion she repelled the intolerable nui- sance of a gunner around her house, or that with the sympathies of a true woman she preferred the presence of the birds to that of their destroyer." * If we assume this case to have been correctly decided, still we must remember that it is applicable only where the hunter has no knowledge of the husband's absence ; for if he knew of it, he would seem to have been at least put upon his in- quiry whether the wife was not in charge in his stead. In cases where there was in fact no authority, other courts have held the wife's license not to justify a trespass on the husband's real prop- erty .^ She cannot, for example, authorize in his absence a search of the house for stolen goods. But " undoubtedly," said Greene, C. J., " the wife's authority extends to the rendering the ordinary civilities of life. If she invite a neighbor, friend, or even stranger, to enter the house in the way of hospitality, such invitation would under ordinary circumstances be a valid license so to do." ® 1 Benjamin v. Benjamin, 15 Conn. 347, ' Felker v. Emerson, 16 Vt. 653, 42 39 Am. D. 384. Of a like sort is Edgerly Am. D. 532. V. Wlialan, 106 Mass. 307. < Kellogg a. Robinson, 32 Conn. 335, 2 Cox V. Hoffman, 4 Dev. & Bat. 180; 341. Webster v. McGinnis, 5 Binn. 235; Rud- 6 Nelson v. Garey, 114 Mass. 418. dock V. Marsh, 38 Eng L. & Eq. 515, 1 « Humes v. Taber, 1 R. I. 464, 473. H. & N. 601 ; Sawyer v. Cutting, 23 Vt. And see Spencer v. Storrs, 38 Vt. 156, 486 ; Alexancler v. Miller, 16 Pa. 215. 158. 623 § 1215 NON-LEGAL SEPARATIONS AND BREACHES. [bOOK T. § 1212. In Principle — there can be no unvarying rule, but the differing facts must be given each its due weight. Plainly a husband thus going away temporarily should be presumed, in the absence of special indications, to intend neither that his business at home shall stand still nor his household shall starve. And where the circumstances point to no one else to look after things, the inevitable conclusion is that the wife was meant. Yet this would not justify her in entering upon new enterprises, or ordina- rily in selling his fixed property, or doing those things which particularly require the personal supervision of the husband. It would, however, justify her in making a sale or doing any other usual thing to prevent a serious loss. In the trial of a cause of this sort, the judge should lay down to the jury these and other pertinent principles of law, adding the observations called for by the particular facts ; then ask them to consider whether or not, in the instance in controversy, the assumed agency is, in view of the law thus given them, reasonably to be inferred. § 1213. Liability of the Husband presumed from Particular Acts of his Own : — Leaving Wife with Surgeon. — Where one left his sick wife in the care of a surgeon, who in a few weeks performed on her an operation from which she died, the latter was held prima facie entitled to recover pay for it, without proving its necessity or pro- priety, or notice to the husband, or danger from waiting until notice could be given him, — he having the burden to make the invalidity of the claim appear.^ § 1214. Leaving "Wife with her Father. — If a husband leaves his wife with her father while she is sick, or during a disagree- ment, he presumptively promises pay.^ And if he expressly prom- ises, he cannot relieve himself by publishing a notice to all persons not to trust her on his account.^ II. Separations through the Fault of the Husband. § 1215. Still to support "Wife. — A husband by whose fault his wife is living apart from him can have no advantage from his own wrong, but his duty to support her remains. If he fails therein, > McClallen v. Adams, 19 Pick. 333, "^ Burkett v. Trowbridge, 61 Me. 251. 31 Am. D. 140. 3 Daubney v. Huglies, 60 N.Y. 187, 3 Thomp. & C. 350. 624 CHAP. XXXIX.j THE PAROL SEPARATIONS. § 1218 any other person may supply her with necessaries, and collect the pay from him.^ Thus, — § 1216. Instances. — Where a husband abandons his wife,^ or turns her out of doors,^ or brings a prostitute into the house,* or treats her with extreme cruelty,* or commits adultery,® he must still provide her with the necessaries explained in the preceding chapter,' or pay another who does. Still there is some diversity as to — V § 1217. What Conduct of -the Husband will justify the Wife in leaving him, within this Doctrine : — Rule in Divorce for Desertion. — We shall see in a subsequent chapter^ that in divorce law, on a question not free from dis- pute, a desertion is by the better doctrine justifiable only when the deserting party has been so offended against as to authorize a suit for divorce or judicial separation. Now, — § 1218. The same Rule — would, in reason, govern a suit by a third person for necessaries furnished a wife who has aban- doned her husband. And such is believed to be the better doc- trine in judicial authority.^' It is not applicable in a State where no divorces are permitted ; but where a statute has provided for them, the courts would seem abundantly justified in assuming that when the legislative judgment defined the grounds of divorce, it thereby indicated the causes for which a wife or husband might, without the consent of the otlier, abandon the matrimonial cohab- itation. This rule, being derived from our own legislation, is, therefore, — 1 Eeese i'. Chilton, 26 Mo. 598; Kemp Johns. 281, 6 Am. D. 373; Blowers v. B. Downham, 5 Harring. Del. 417 ; Ruth- Sturtevant, 4 Denio, 46. erford w. Coxe, 11 Misso. 347; Emery v. " Allen i'. Aldrich, 9 Fost. N. H. 63; Emerv. 1 Y. & J. 501,6 Price, 336; Todd Johnston v. Sumner, 3 H. & N. 261; V. Stokes, 1 Ld. Eaym. 444, 12 Mod. 244; Zeigler v. David, 23 Ala. 127; Billing Kumney v. Keyes, 7 N. H. 571 ; Wallcer v. Pilcher, 7 B. Monr. 458, 46 Am. D. V. Simpson, 7 Watts & S. 83; Zeigler r. 523; Harris o. Morris, 4 Esp. 41. DaTid, 23 Ala. 127; Eej-nolds v. Sweet- * Tempany v. Hakewill, 1 Fost. & F. ser, 15 Gray, 7s ; Ross i: Ross, 69 111. 569 ; 438 ; Descelles i'. Kadmus, 8 Iowa, 51. Schnuckle r. Bierman, 89 HI. 454. 5 Mayhew v. Thayer, 8 Gray, 172; 2 Casteel v. CasteeL 8 Blackf. 240, 44 Snover v. Blair, 1 Dutcher, 94 ; Clement Am. D. 763 ; Cunningham v. Irwin, 7 S. v. Mattison, supra. & R. 247, 10 Am. D. 458; Breinig v. 6 Sykes u. Halstead, 1 Sandf. 483 ; Ben- Meitzler, 23 Pa. 156 ; Clement v. Matti- nett v. Smith, 21 Barb. 439. son, 3 Rich. 93 ; HaU ^. Weir, 1 Allen, ' Ante, § U88-1190. 261 ; Cartwright v. Bate, 1 Allen, 514, 79 6 Post, § 1742 et seq. Am. D. 759 ; McGahay v. Williams, 12 « P. v. Pettit, 74 N. Y. 320, 325 ; Black Johns. 293; McCutchen o. McGahay, 11 v. Black, 3 Stew. Ch. 215, 221 ; Butler v. Butler, 4 Pa. Law Jour. Rep. 284. 525 § 1222 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. § 1219. Distinguishable from the Common-la-w Rule. — When our country was settled from England, judicial dissolutions were there unknown ; and the divorce from bed and board, granted by the ecclesiastical courts, was deemed to concern rather the re- ligious part of man than the secular. It did not proceed from legislation. Nor did the common-law courts take more than slight cognizance of the tribunals by which it was granted. The rule just stated, therefore, could not have prevailed at common law. Still, — § 1220. other Forms of Rule. — Often the judges speak of this question in terms not referring to the divorce laws. We find, therefore, in part repeating what has already been said, expres- sions in substance as follows : The husband must supply his wife with necessaries while living in a separation not proceeding from her fault ; and if he does not, another may, and charge him.^ But if she leaves him without his consent, he is answerable only should his misconduct justify her.^ His cruelty, as already stated,^ is a justification ; * so is any conduct of Ins which authorizes a divorce either from bed and board or from the bond of matri- mony.^ This is doctrine unquestionable everywhere. Again, — § 1221. Husband living with Prostitute. — A husband waS in one case adjudged not chargeable for necessaries furnished the wife who had left him, though he was living in adultery with a prostitute whom he took into the house.® But this doctrine has found no following; the contrary has been ruled ,'^ and it is clearly not law either in England^ or the United States.^ §1222. Less Ezrtreme 111 Conduct — (Debatable Ground). — 1 Liddlow V. Wilmot, 2 Stark. 86, 8S. .569 ; Howard v. Whetstone, 10 Ohio, 365; And see Emmett u. Norton, 8 Car. & P. Emery v, Emery, 1 Y. & J. 501. 506 ; and Am. note to 2 Smith Lead Cas. ^ See the observations of Lord Mans- Am. p. 365, 366 ; Kumney v. Keyes, 7 field in Ozard v. Darnford, 1 Sehv. N. P. N. H. 571; Shaw t). Thompson, 16 Piclc. llthed.294. And see Houliston y. Smyth, 198, 26 Am. D. 655; Read v. Legard, 15 supra. Jur. 4^4, 4 Eng. L. & Eq. 523 ; 2 Kent <^ Harwood v. Heffer, 3 Taunt. 420. Com. 48 ; Emery v. Emery, 1 Y. & J. 7 Liddlow v. Wilmot, 2 Stark. 86, 88 ; 501 ; Allen v. Aldrich, 9 Post. N. H. 63. Aldis v. Chapman, 1 Selw. N. P. Uth ed. 2 Pea V. Durkee, 25 HI. 503 ; Schnuckle 298 ; Hunt v. Blaquiere, 3 Moore & P. V. Bierman, 89 111. 454; Eoss v. Eoss, 69 108 ; Sykes v. Halstead, 1 Sandf. 483. 111. 569. 8 Houliston v. Smyth, 3 Bing. 127, 2 3 Ante, § 1216. Car. & P. 22, 10 Moore, 482. * Houliston V. Smyth, 3 Bing. 127, 2 ' Blowers v. Sturtevant, 4 Denio, 46, Car. & P. 22, 10 Moore, 482 ; Ayer u. 49 ; Fredd v. Eves, 4 Hairing. Del. 38.5, Ayer, 16 Pick. 327; Clement v. Mattison, 387. 3 Eich. 93 ; Evans o. Fisher, 5 Oilman, 526 CHAP. XXXIX.j THE PAROL SEPAEATIONS. § 1225 There are cases apparently favoring the idea that gross immor- ality and indecent conduct short of actual adultery — as, bring- ing a woman of loose character into the house and placing her at the head of the table — will justify the wife in leaving her husband. " But still," observed Bronson, C. J., " where there is no such gross indecency on the part of the husband, all the cases agree that there must be just ground for apprehending personal violence before the wife can voluntarily go away and charge the husband with her support ; " ^ in other words, there must be legal cruelty.^ And if legal cruelty has been inflicted, the husband cannot absolve himself by a demand upon the wife to return.^ Now, — § 1223. Just Ground. — Considering the indefiniteness of the authorities, the somewhat altered reason of the law from what it formerly was, the importance of a plain and exact rule, and the evident propriety of following what the divorce legislation has laid down, so as to give to the law the harmony which law- makers are rightly supposed to intend, the just ground with us is, as already explained, that when the wife is away without the hus- band's consent, he is not to be charged with necessaries furnished her unless he has committed acts justifying a suit against him for divorce, either from the bond of matrimony or from bed and board. Our full and complete statutory provisions on the judi- cial separation of married parties and the dissolution of the bond make it so, by an implication not greatly less forceful than a direct command.* § 1224. Further Questions : — Plaintiff in Wrong. — Tiiough a husband's cruelty has forced the wife to leave him and take his children, a man who receives and provides for them cannot recover from him compensation if one of his motives was to maintain an adulterous connection with her. Not only the plaintiff would be in the wrong, but the woman would not be justified in the arrangement.^ § 1225. Deserted Wife using Means left with her. — A husband, 1 Blowers v. Sturtevant, 4 Denio, 46, * Adverse. — There are cases and dicta 49 ; Fredd v. Eves, 4 Harring. Del. 385, adverse to this ; as, Burlen v. Shannon, 3 387. Gray, 387, 390; Hancock v. Merrick, 10 2 But see, on this subject, Ayer v. Cush. 41. Ayer, 16 Pick. 327. ^ Almy u. Wilcox, 110 Mass. 443. 3 Emery v. Emery, 1 Y. & J. 501. See Carr v. Carr, 22 Grat. 168. 527 § 1229 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK T sent to jail for an assault on his wife, whereby he had incapaci- tated her, took with him all his money, and left her without fam- ily supplies. In her extremity, she sold a cooking-stove for a reasonable price, and therewith bought necessaries. The sale was held to pass a valid title to the purchaser .1 So a wife with minor children, deserted by the husband and father, was adjudged au- thorized to hire them out and take their wages for the support of the family .2 In cases of this sort, the law presumes that lie con- ferred on her the agency. § 1226. Credit GeneraL — The credit which a discarded wife carries with her for necessaries is general ; the husband cannot restrict it by giving notice to a particular person not to trust her.^ And — § 1227. Notice to Return. — "^here a wife, leaving the husband, is justified by his misconduct, he cannot abridge her credit by a notice to her to return.* III. Separations through the Fault of the Wife. § 1228. Doctrine defined. — Since the husband's duty to sup- port his wife is conditioned on her not breaking up the cohabita- tion without his fault or consent, if she abandons him with no justifiable cause,^ or commits adultery for which he turns her away,® or voluntarily lives apart from him in adultery,'^ or other- wise dwells separate from him without his consent or fault,^ the law casts on him no duty to supply her even with necessaries. But — §1229. "Wife presumed Agent. — Though the separation was by the fault of the wife, the husband is not precluded from sup- porting her if he will.^ And sometimes the judge or jury has gone far in presuming an agency in her to bind him, — his conduct ^ Ahem v. Easterly, 42 Conn 546. 663 ; McCormick v. McCormick, 7 Leigh, 2 Camerlin v. Palmer Co. 10 Allen, 66 ; Sears v. Sears, 45 Tex. 557 ; Newland 539. V. Holland, 45 Tex. 588. 3 Bolton V. Prentice, 2 Stra. 1214 ; Har- « Hunter v. Boucher, 3 Pick. 289 ; Ham ris V. Morris, 4 Esp. 41. v. Torrey, Selw. N. P. 271, 276; Hardio * Emery v. Emery, 1 Y. & J. 501, 6 v. Grant, 8 Car. & P. 512; Emmett v. Price, 336. Norton, 8 Car. & P. 506. 5 Williams v. Prince, 3 Stroh. 490; ' Morris i-. Martin, 1 Stra. 647; Man- Brown V. Patton, 3 Humph. 135 ; Cany v. wairingi). Sands, 1 Stra. 705. Patton, 2 Ashm. 140; Allen v. Aldrich, 9 ^ Rutherford v. Coxe, 11 Misso. 347; Eost. N. H. 63 ; Angelo v. Angelo, 81 HI. Thome v. Kathan, 51 Vt. 520. 251. And see Barnes i-. Allen, 30 Barb. ' Thome v. Brown, 139 Mass. 35. 528 CHAP. XXXIX. j THE PAROL SEPARATIONS. § 1231 having furnished some ground for the presumption.^ For ex- ample, where, after a wife's desertion, the husband made a propo- sition to his son-in-law not culminating in a distinct agreement, to supply her with necessaries, and she was sick, and the latter called in a physician, he was held liable ; the court observing : "Although the proposition as to the manner of compensating the son-in-law was not accepted by him, still the letter may be under- stood as an understanding to pay for necessaries. The sympathy expressed in the letter, the wish that her wants should be sup- plied, &c., evinced a willingness to supply those comforts, and ought not to be restricted to a particular mode of paying for them." 2 § 1230. Adultery after Separation. — Ordinarily if, while hus- band and wife are living apart under circumstances rendering him liable for her support, she commits adultery, his liability ceases,^ within the doctrine stated at the opening of this sub- title.* § 1231. Mutual Guilt. — Where both parties are in the wrong, — as, where they have severally committed adultery, — and tliey dwell apart, is the husband compellable to support the wife ? The English courts have held that he is not.* As to which it is familiar doctrine that, in these circumstances, neither can have a divorce from the other, because neither as plaintiff could come into court with clean hands. But there is room for grave doubt whether this bar is applicable in a suit for necessaries furnished the wife. The defendant husband could not set up his own wrong in answer to the suit, and the plaintiff, whose kindness had kept the wife from starving, was not in the wrong.^ Besides, 1 See Collins v. Mitchell, 5 Harring. was rejected because the parties were not Del. 369 ; Norton v. Fazan, 1 B. & P. 226. the same, and there was no judgment ^ Brown v. Patton, 3 Humph. 135, 137, affecting the marriage status. In the opinion by Green, J. Compare with first cited case, Mr. Justice Buller said at Thome w. Kathan, 51 Vt. 520; Oinson v. nisi prius "that the husband was not Heritage, 45 Ind. 73, 15 Am. R. 258. And bound to receive the wife after she had see Norton v. Fazan, 1 B. & P. 226. committed adultery, and consequently was ^ Cooper V. Lloyd, 6 C. B. n. s. 519 ; not bound to support her." And by the Atkyns r. Pearce, 2 C. B. n. s 763. court in bank it was observed : " If the * Ante, § 1228. wife had instituted a suit in the Ecclesias- ^ Govier v. Hancock, 6 T. R. 603 ; in tical Court against the husband for resti- effect, affirmed in Rex v. Flintan, 1 B. & tution of conjugal rights, they would not Ad. 227. In Needham u. Bremner, Law have assisted her." Govier v. Hancock, Rep. 1 C. P. 583, this appears to have supra, p. 603, 604. been accepted as the law ; but a record 6 gee the elucidations in Bishop Non- of the Divorce Court finding mutual guilt Con. Law, § 54-65. VOL. I. — 34 629 § 1235 NON-LEGAL SEPARATIONS AND BREACHES. [bOOK V. in principle, each having a just ground for living apart from the other, or each being a suitable companion for the other, they now stand toward each other the same as though they were living in separation by mutual consent, when by familiar law^ the husband must support the wife. And this is believed to be the true doctrine. § 1232. Connivance at "Wife's Adultery. — One cannot Complain of that to which he consents. On this principle, a husband is not relieved from any duty toward his wife by her committing adul- tery at which he connives. So that if he then turns her out of, doors he wrongs her, and she carries his credit for necessaries which a third person supplies.^ § 1233. Wife remarrying by Mistake. — If a husband deserts his wife and by artifice leads her to believe he is dead, and she marries again ; after which she finds he is alive, and leaves the man she married, — she has committed no wrong either civil or criminal. But contrary to this common and just doctrine, the Massachusetts courts hold this void marriage of hers to be polyg- amy, unless the husband's absence has extended to the statutory period of seven years.* Yet not even in Massachusetts will the husband be thus relieved from maintaining his wife, though she has been convicted of polygamy in the second marriage. The reason assigned is that " he is estopped from taking advantage of her conduct." * Another reason, more conclusive under the laws of most of the other States, is that though the wife's second marriage is void, her cohabitation under it, down to the time of discovering the mistake, was not adultery. § 1234. Wife's Condoned Adultery. — If after a separation be- cause of the wife's adultery, the husband receives her back, thus condoning it, he cannot rely on this adultery in bar of a suit for necessaries supplied her subsequently ; but for those before, the bar remains.* IV. Separations through Parol Mutual Consent. § 1235. Husband still Liable. — It is no delinquency in a hus- band to concur with his wife in the wish to live apart. So that 1 Post, § 1235. 4 Cartwright v. Bate, 1 Allen, 514, 516, 2 "Wilson V. Glossop, 19 Q. B. D. 379, 79 Am. D. 759, Chapman, J. 20 Q. B. D. 354. 5 Williams ,». Prince, 3 Strob. 490; 3 Bishop Stat. Crimea, § 596 a and note, Henderson v. Stringer, 2 Dana, 291 ; Har- and places there referred to. ris v. Morris, 4 Eep. 41. 530 CHAP. XXXIX.] THE PAROL SEPARATIONS. § 1238 if they separate by mutual consent, he must still maintain her ; and if he does not, a third person who furnishes necessaries for her may compel payment from him, the same as when the co- habitation is continuing or the separation is through his fault.^ Still, — § 1236. Funds of her Own. — A wife having funds of hei* own cannot, it seems, thus pledge her husband's credit in separation, if they are sufficient; otherwise she can.^ Again, — § 1237. Provision made by Husband. — As when the parties are in cohabitation,^ if the husband has himself made suitable and sufficient provision for his wife, she can pledge his credit for nothing further. It was so, for example, where a wife with the concurrence of her husband went to live with her father, to be maintained at the former's expense. She voluntarily left the father's house ; and the court, denying her power to pledge her husband's credit for necessaries, observed, by Richardson, C. J., that "the separation being by mutual consent, he is liable for her support unless he has made suitable provision for her main- tenance, of which she can avail herself. . . . But he having placed the wife with her father, who is of sufficient ability, under a con- tract by the father to maintain her, this, prima facie, exonerates the husband. And to maintain this action, the plaintiff must show that she is deprived of that support without her fault." * It is perceived that this case contains also the further element, that the husband's consent to the separation was conditioned on her living with her father ; so when she broke the condition, the separation ceased to be by mutual consent. Further as to which, — § 1238. Separation Conditional — (inadequate AUo-wance — Revo- catton). — "If," in the language of Bramwell, B., "the husband consent to the wife living apart from him on the terms that she shall not bind his credit, that consent is conditional ; and if she 1 See, on this general subject, Frost v. low v. Wilmot, 2 Stark. 86. See Thomp- WiUis, 13 Vt. 202 ; Lockwood y. Thomas, son i,. Hervey, 4 Bur! 2177; Litsou v. 12 Johns. 248; Baker y. Barney, 8 Johns. Brown, 26 Ind. 489; Fredd v. Eves, 4 72, 5 Am. D. 326 ; Rumney v. Kej-es, 7 Harring. Del. 385 ; Baker t;. Barney, 8 N. H. 571; Evans v. Fisher, 5 Oilman, Johns. 72, 5 Am. D. 326; Fenner u. 569; Johnston v. Sumner, 3 H. & N. 261 ; Lewis, 10 Johns. 38. Dixon V. Hurrell, 8 Car. & P. 717; Thorne » Ante, § 1188, 1195. V. Kathan, 51 Vt. 520. * Pidgin i . Cram, 8 N. H. 350, 352. ^ Dixon V. Hurrell, 8 Car. & P. 717; See Carley v. Green, 12 Allen, 104; East- Clifford V. Laton, 3 Car. & P! 15 ; Lidd- land i'. BurcheU, 3 Q. B. D. 432. 531 § 1241 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. do not perform that condition, she is not living apart with his consent." So that in the absence of any offer to return to coliab- itation, she cannot charge him with necessaries while he pays the allowance, however inadequate it may be.^ But plainly such an arrangement would be revocable at the pleasure of either party. Still, — § 1239. No Agreement as to Sufficiency. — An arrangement simply for living in separation, being silent as to the allowance, will not protect the husband unless it is in fact adequate.^ When it is so, and is regularly paid, it will protect him;^ otherwise when it is not paid.* V. Remaining Doctrines Common to the Several Separations. § 1240. Business -which Husband permits — (Presumed Agency). — Whether the parties are separate or cohabiting, the husband by implication makes the wife his agent to do whatever is within the scope of a business which he knowingly allows her to conduct.^ If, for example, it is that of a trader, she may transfer her stock of goods in payment of notes given for their purchase ; ^ and as a branch of this doctrine, he has been charged on her contracts about the business.'' It was even held by the majority of a divided court that, where a husband absent from his family knew his wife to be keeping a boarding-house for their support, yet neither ex- pressed dissent nor made provision for them, he was liable on her contract for the rent of the house. In the words of Swift, 0. J., " the law will presume his assent." ^ Again, — § 1241. Pay for Services. — One leaving his wife cannot compel her to starve. If, therefore, she earns money by her labor, she is 1 Biffin V. Bignell, 8 Jur. N. s. 647, 648, v. Chilton, 26 Mo. 598 ; Cany v. Patton, 7 H. & N. 877, 880. And see Johnston 2 Ashm. 140. See Rawlyns v. Vandyke, V. Sumner, 3 H. & N. 261 ; Eastland u. 3 Esp. 2.50. Burchell, 3 Q. B. D. 432; Crittenden v. « Collier u: Brown, 3 Foat. & F. 67; Schermerhorn, 39 Mich. 661. Baker v. Barney, 8 Johns. 72, 5 Am. D. 2 Hodgkinson v. Fletcher, 4 Camp. 70 ; 326. Pearson v. Darrington, 32 Ala. 227; ^ j-gnner w. Lewis, 10 Johns. 38; Crop- Fredd v. Eves, 4 Harring. Del. 385 ; Cany sey v. McKinney, 30 Barb. 47 ; Casteel v. V. Patton, 2 Ashm. 140. Casteel, 8 Blackf, 240, 44 Am. D. 763. 3 Post, § 1249 ; Mizen v. Pick, 3 M. & " Green v. Pallas, 1 Beasley, 267. "W. 481 ; Reeve v. Conyngham, 2 Car. & ' Godfrey v. ^rooks, 5 Harring. Del. K. 444 ; Holder v. Cope, 2 Car. & K. 437 ; 396. Pearson v. Darrington, 32 Ala. 227; Reese 8 Rotch v. .Miles, 2 Conn. 638, 645, 647. 532 CHAP. XXXIX.J THE PAROL SEPARATIONS. § 1246 impliedly authorized by him to receive it ; and if she does, he cannot on reappearing collect the pay again.^ § 1242. More of Implied Agency. — The illustrations are mul- titudinous ; thus, — § 1243. Leaving Wife and Children with Farm. — If a husband abandons his wife and minor children, leaving behind only a farm on which he had resided, she is impliedly authorized to cultivate it and apply its products to the support of the family. And it was held in one case that on a son's arriving at majority, the jury might infer the husband's authorization to the wife to employ him on his account for the carrying on of the farm for the family's sustenance.^ In another case, — § 1244. Collecting Interest. — Where a husband had gone away with a hostile feeling, leaving a bond which was in the wife's pos- session, and providing no other means for her support, it was held that she was not presumptively authorized to receive the interest thereon.^ Probably in some of our States the court would permit the jury to find the opposite on the like facts. § 1245. Coming into State without Husband. — A woman went into Alabama without her husband, from whom she had separated in another State, and in his absence maintained for years herself and children, he making no claim to her acquisitions. There- upon she was adjudged competent to pass, by indorsement in her own name, title to a bill or note made payable to her.* § 1246. Credit given to Wife. — Prior to the advent of modern statutes, the wife could not bind herself by any contract which the common law would recognize ; ® therefore she could not, at law, whatever might be her power in equity if she had a separate estate, obligate herself to pay even for necessaries for her own sustenance. But under varying statutes in many or most of our States, and in equity, she can now take upon herself this sort of liability, or charge thereby her estate.® And though the husband 1 Lawrence v. Spear, 17 Cal. 421 ; Nor- see further, on the general subject of these cross V. Eodgers, 30 Vt. 588, 73 Am. D. sections, Cameilin v. Palmer Co. 10 Allen, 323. 539 ; Edgerly v. Whalau, 106 Mass. 307 ; 2 Casteel v. Casteel, 8 Blackf. 240, 44 Hill v. Sewald, 53 Pa. 271, 91 Am. D. 209; Am. D. 763. And see Cropsey u. Mc- Reynolds i. Sweetser, 15 Gray, 78; Bur- Kinney, 30 Barb. 47. len v. Shannon, 14 Gray, 433; Cunning- ' Walker v. Simpson, 7 Watts & S. 83. ham v. Reardon, 98 Mass. 538, 96 Am. D. And see Rogers u. PhiUips, 3 Eng. 366, 670. 47 Am. T). 727. ' 1 Bishop Mar. Women, § 39, 707, 842. * Roland v. Logan, 18 Ala. 307. Aud ' Carstens v. Hanselman, 61 Mich. 426, 533 § 1248 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. were compellable to supply her with necessaries, yet if the credit is given to her, and she is bound by reason of having separate property or otherwise, he cannot be made to pay for them, even where he is cohabiting with her and sees the goods on her per- son.i Nor, it is believed, is the result different though she is without separate property, and the vendor trusts merely to the chance of a voluntary payment.''* Within this rule, the mere charging of the articles to the wife in the trader's books of ac- count will not necessarily exempt the husband from liability to pay for them.^ § 1247. Wife using Goods •with Husband's Knowrledge. — There is, as to this, a distinction between cohabitation and separation. Ordinarily in the former, if the husband sees goods on the person of his wife, and is silent, he ratifies the purchase and is compel- lable to pay for them, — a proposition which the particular facts may negative. On the other hand, " if they are not cohabiting," said Lord Ellenborough, " then he is, in general, only liable for such necessaries as from his situation in life it is his duty to supply her. But even where they are parted, if tlie husband has any control over goods improvidently ordered by the wife, so as to have it in his power to return them to the vendor, and he does not return them, or cause them to be returned, he adopts her act, and renders himself answerable." * So that, for example, if dur- ing a separation goods not within the husband's liability are fur- nished the wife, then on a reconciliation he receives them and her together, he must pay for them.^ And if she has obtained goods by deceitful practices, and he accepts them with her, promising pay, he may be compelled, provided the vendor was not a party to the deceit.^ §1248. Where Provide — (Husband's Adultery). — While in 1 Am. St. 606; Maxon a. Scott, 55 N.Y. 2 Bentley !>. Griffin, 5 Taunt. 356 ; Holt 247 ; Priest v. Cone, 51 Vt. 495, 31 Am. v. Brien, 4 B. & Aid. 252 ; Shelton v. Pen- R. 695; Miller o. Brown, 47 Mo. 504, 4 dletou, 18 Conn. 417; Bngbee i). Blood, Am. R. 345 ; Sherwin v. Sanders, 59 Vt. 48 "Vt. 497. 499, 59 Am. R. 750; "Wilson v. Herbert, 3 Furlong v. Hyson, 35 Me. 332. .And 12 Vroom, 454, 32 Am. R. 243 ; Tiemeyer see Wray v. Cox, 24 Ala. 337 ; Cropsey v. V. Tnrnquist, 85 N. Y. 516, 39 Am. R. 674 ; McKinney, 30 Barb. 47 ; Hoyle o. "War- Krouskop 0. Shontz, 51 "Wis. 204, 37 Am. field, 28 HI. Ap. 628. . R, 817. • * "Waithman v, "Wakefield, 1 Camp. 120. 1 Stammers v. Macomb, 2 "Wend. 454; 5 Rennick v. Ficklin, 3 B. Monr. 166. Black V. Bryan, 18 Tex. 453; Connerat v. « Allen v. Aldrich, 9 Post. if. H. 63. Goldsmith, 6 Ga. 14. And see Cook v. Ligon, 54 Missis. 368. 634 CHAP. XXXIX.] THE PAROL SEPARATIONS, § 1250 general the husband may supply necessaries in his own way,i if the wife has left him because of adultery which he has committed, he cannot free himself from liability by offering her board and a separate apartment in his own house.^ For thus the law would smile upon his wickedness, and cast a needless ignominy upon his wife. Yet — § 1249. AUowanoe after Husband's Fault. — Where there is a voluntary separation, though caused by the husband's fault, if he makes her a suitable allowance and pays it, she does not carry with her his credit.^ § 1250. Burden of Proof — The authorities are in some degree obscure on this question, and there are earlier cases which the later have overruled. On principle, and it is believed by the superior weight of adjudication, a plaintiff suing for necessaries must, to prevail, make out a prima facie case ; and the manner of doing it will depend on the circumstances. He may show facts from which the law will presume or the jury infer agency, or the use of the goods with the husband's knowledge and implied con- sent, or her needs. And if, for example, the two are living apart, mere evidence that the goods were suitable to her condition will not suffice. Such separation being equally consistent with things exempting the husband from liability and with those imposing it on him, the plaintiff must prove the facts which make him liable. It is believed that these general views will be practically as help- ful as a minuter discussion of the question. The result is that persons dealing with the wife on the husband's account, the same as those who contract with any other agent, must show the agency if they would hold the principal.* 1 Ante, § 1205; Morgan v. Hughes, 20 v. Bobb, 25 Mo. 36; Pool v. Everton, 5 Tex. 141 ; Holder u. Cope, 2 Car. & K. Jones, N. C. 241 ; Hunter v. Boucher, 3 437. Pick. 289 ; Reese v. Chilton, 26 Mo. 598; 2 Sykes v. Halstead, 1 Sandf. 483. Mott v. Comstock, 8 Wend. 544 ; Harshaw ' Kemp V. Downham, 5 Harring. Del. v. Merryman, 18 Mo. 106 ; Kemp v. Down- 417. Andseeante, §1188, 1196; Fredd K. ham, 5 Harring. Del. 417 ; Cany u. Patton, Eves, 4 Harring. Del 385; Baker v. Bar- 2 Ashm. 140; Mitchell v. Treanor, 11 Ga. ney, 8 Johns. 72, 5 Am. D. 326; Cany v. 324, 56 Am. D. 421 ; Cartwright v. Bate, Patton, 2 Ashm. 140; Harshaw v. Merry- 1 Allen, 514, 516, 79 Am. D. 759 ; Billing man, 18 Mo. 106; Mott v. Comstock, 8 v. Pilcher, 7 B. Monr. 458,46 Am. D. 523; Wend. 544. - Hare v. Gibson, 32 Ohio St. 33, 30 Am. R. * Mainwaring v. Leslie, Moody & M. 568; Thome v. Kathan, 51 Vt. 520; Rea 18, 2 Car. & P. 507 ; Clifford o. Laton, v. Durkee, 25 111. 503 ; Keller v. Phillips, 3 Car. & P. 15, 1 Moody & M. 101 ; .John- 39 N. Y. 351 ; Brown v. Worden, 39 Wis. ston V. Sumner, 3 H. & N. 261; Gill v. 432; Harttmann u. Tegart, 12 Kan. 177; Eead, 5 E. I. 343, 73 Am. D. 73 ; Porter Bevier v. Galloway, 71 111. 517; Tebbets v. 535 § 1252 NON-LEGAL SEPARATIONS AND BREACHES. [bOOK V. § 1251. Wife's Declarations. — Declarations of any person, when of the res gestw of a transaction in evidence, are admissible in ex- planation.i On this principle, what the wife said at or about the time of leaving her husband may, in these cases, and in actions by him against third persons for harboring her, and the like, be shown ; not always and as of course, but when within the general rules of evidence as to the res gestce? § 1252. The Doctrine of this Chapter restated. The last chapter having explained the general liability of the husband to maintain his wife in cohabitation, we have in this chapter seen that the same rule extends to temporary absences and to separations by mutual consent. If the husband turns away the wife without cause, or if she leaves him with cause, he must either provide for her himself, or make compensation to a third person who supplies her with necessaries. So far the hus- band's obligation is inevitable. Moreover, equally in cohabitation and in separation, when he is in fault and when he is not, under numerous circumstances, an actual agency in the wife will also be imputed or presumed, making him answerable both for neces- saries and for other things which she procures on his account. The minuter distinctions need not be repeated. Hapgood, 34 N. H. 420; Barr v. Arm- " Gilchrist o. Bale, 8 Watts, 355, 34 strong, 56 Mo. 577; Kegoney u. Neiman, Am. D. 469; Jacobs v. Whitcomb, 10 73 Pa. 330. Cush. 255 ; Johnson u. Sherwin, 3 Gray, 1 1 Bishop Grim. Proced. § 1086, 1087, 374 ; Preston v. Bowers, 13 Ohio St. 1, 11, nil, 1248. 82 Am. D. 430; Palmer v. Crook, 7 Gray, 418; Tacket v. May, 3 Dana, 79. 536 CHAP. XL.J HUSBAND OB WIFE'S INSANITY. § 1255 CHAPTER XL. THE HUSBAND OR WIFE'S INSANITY. § 1253. Husband maintain Wife. — The husband must maintain the wife both during cohabitation and whenever there is a sepa- ration without her fault.^ Insanity in either is not a fault ; there- fore, whether he or she is insane, or though both are, he must still provide for her. If she is in an insane asylum, he must sup- port her there,^ and he may be sued for necessaries there supplied to her.** Or, should he be the one in the asylum, the sane wife may charge him while there with necessaries.* And, — § 1254. Marriage void. — Though by reason of the wife's in- sanity the marriage is void, still if the husband lives with her and recognizes her as his wife, a principle previously stated^ compels him to maintain her during the cohabitation.^ § 1255. Town helping Insane Wife. — On general principles, a town or county furnishing necessaries to an insane wife has the same right of action against the husband as a private person. So that where a husband, well able, neglects such a wife, and she wanders into an adjoining town and there receives support, her husband may be compelled to pay therefor. It was so adjudged in Maine, where the town furnishing the relief collected the pay from the town of her settlement, and the latter sued the husband.'^ But under particular poor-laws this may not be so. Therefore in Indiana the husband cannot be made to pay for support furnished his wife in a poor-house ; for if she was a proper subject to be committed there, no person is so liable : if she was not, the re- ceiving of her by the overseers of the poor was wrongful.^ And 1 Poraeroy v. "Wells, 8 Paige, 406. ^ Gerhold v. Wyss, 13 Neb. 90; Stuckey ^ Wray u. Wray, 33 Ala. 187. v. Mathes, 24 Huh, 461. 8 Wray v. Cox, 24 Ala. 337. ' Alna v. Plummer, 4 Greenl. 258. * Read v. Legard, 4 Eng. L. & Eq. 523, And see Howard o. Whetstone, 10 Ohio, 6 Exch. 636 ; Alexander v. Miller, 16 Pa. 365 ; Springfield v. Demott, 13 Ohio, 104 ; 215; Richardson v. Du Bois, Law Rep. 5 Monson v. Williams, 6 Gray, 416; Rum- Q. B. 51 ; 2 Bishop Mar. Women, § 404. ney v. Keyes, 7 N. H. 571. ' Ante, § 1150. * Switzerland i'. Hildebrand, 1 Ind. 537 § 1259 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. in Iowa, a husband cannot be required to reimburse a county for expenses incurred in treating his insane wife at the State hospital.! § 1256. Wife's Services. — A wife is under obligation, incurred at marriage, to serve her husband. Therefore if he is insane, and commissioners make her his custodian, she can recover notliing for the service. Even where it is agreed that she shall be paid, the result is the same ; for the contract is without consideration.^ § 1257. Wife as to Insane Husband's Effects. — The. insanity of a husband does not constitute the wife general manager of his affairs. For example, she cannot transfer his property to a par- ticular creditor in payment of a debt, to the prejudice of others.^ § 1258. Burial — for a wife is in all circumstances a necessary with which the husband is chargeable.* It is so even where she was living separate from liim ^ through her fault.^ No longer is the body in fault when the spirit that controlled it has fled.'' Therefore when a wife, whether sane or insane, dies in the hus- band's absence, a third person who provides for her burial suita- ble to his rank and fortune may recover of him the expenses.^ § 1259. The Doctrine of this Chapter restated. The visitation of God, whereby a husband or wife becomes in- sane, does not change the rights and duties which the parties sanely assumed at their marriage. 555, 1 Smith, Ind. 361. Even though the 6 Bradshaw v. Beard, 12 C. B. n. s. husband promised pay, it would not be 344. In this case the wife had deserted otherwise; "because the provision made the husband. As to the wife's relation to for her was a charity, and no person was the burial of her husband, see Wynkoop liable to pay for the same." Noble v. v. Wynkoop, 42 Pa. 293, 82 Am. D. 506; Schmoke, 51 Ind. 416, 418. And see Nor- Chappie v. Cooper, 13 M. & W. 252. ton V. Rhodes, 18 Barb. 100. ' There are cases in which possibly it 1 Delaware v. McDonald, 46 Iowa, 170. is implied that a husband is not liable for And see further of this question, ante, the burial of a wife who died while sepa- s 1192. rated from him through her fault. Cun- 2 Grant v. Green, 41 Iowa, 88. Hus- ningham «. Reardon, 98 Mass. 538, 96 Am. band's Care. — As to the responsibilities T). 670; Carley .d. Gretin, 12 Allen, 104, of a husband in whose care is an insane 106. But on principle this cannot be so. wife, see Gove v. Farmers' Mutual Fire With the termination of her fault, ends Ins. Co. 48 N. H. 41, 97 Am. D. 572, 2 his excuse for not providing for her. For Am. R. 168. the principle, see, for example, McGahay 8 Alexander v. Miller, 16 Pa. 215. v. Williams, 12 Johns. 293; McCntchen v. * Jenkins v. Tucker, 1 H. Bl. 90. And McGahay, 11 Johns. 281, 6 Am. D. 373; see Patterson t. Patterson, 59 N. Y. 574, Cunningham v. Irwin, 7 S. & R. 247, 10 583, 17 Am, R. 384. Am. D. 458. !• Ambrose v. Kerrison, 4 Eng. L. & ^ Jenkins v. Tucker, 1 H. Bl. 90. Eq. 361, 10 C. B. 776. 538 CHAP. XLI.] SEPARATIONS UNDER ARTICLES. § 1261 CHAPTER XLI. SEPARATIONS UNDER ARTICLES. § 1260-1262. Introduction. 1263-1267. Modern English Doctrine. 1268-1286. American and Former English Doctrine. 1287-1311. How in Respective States. 1312. Doctrine of Chapter restated. § 1260. Elsewhere. — Postnuptial contracts between married persons, as well as antenuptial ones, are explained by the au- thor in " Married Women." And much of what is there given is equally applicable under the present title, — not here to be repeated. § 1261. Doctrine of Chapter defined. — Since parties may val- idly bargain to do whatever accords with their legal rights and duties, but not to do a thing prohibited by law, or counter to its policy, or subversive of any public interest which the law cher- ishes,^ if a husband and wife are living apart, he may convey property for her benefit, or validly bind himself to render her a specific maintenance, and a third person may guarantee to him protection from further charges on her account. But since the law makes the public a party to every suit for dissolution or sepa- ration, and forbids either form of divorce on the mutual agree- ment of the parties, or on the connivance of one of them to the other's wrong,^ any bargaining between them for a future sepa- ration, or for the procuring of a divorce, or tending to the like end, being contrary both to the law and legal policy, is void.^ ' Bi.shop Con. § 470. tenance or aid to either party in carrying ^ Ante, § 72, 73, 75, 76. into execution an independent executory 2 Otherwise Expressed. — In Harsh- agreement to live apart, because such an berger v. Alger, 31 Grat. 52, 60, 61, Burks, agreement is considered as against public J. says : " The books abound in discussion policy, yet they vpill generally uphold and of this question by judges and law-writers, enforce against the husband such convey- and the weight of authority would seem ances and covenants as he may have made to be, that while courts will give no coun- for the maintenance of his wife, provided 539 § 1264 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V, There are minor and ancillary doctrines, and nice questions as to the application of the main one, so that a minuter exposition is required. § 1262. How Chapter divided. — We shall consider, I. The Modern English Doctrine ; II. The American and Former Eng- lish Doctrine ; III. How the Doctrine is applied in the Respective States. I. The Modern English Doctrine. § 1263. Summersault. — Long after the author's "Marriage and Divorce " was originally published, the English courts exhibited to the world one of the most marvellous judicial summersaults ever witnessed in any country. It related to the subject of this chap- ter. " Public opinion," observes a learned English judge, " has altered in some circumstances, and no better illustration of that can be given than the change of view as to deeds of separation between husband and wife." ^ So, according to this judicial rep- resentation, " public opinion " took the leap, and the judiciary of England went over therewith. In the United States, public opin- ion changes laws as often as it does in England, but with us legis- lation ratifies the change ; and until the ratification in this form transpires, the judiciary is compelled, however much against its will, to remain quiescent. § 1264. Doctrine defined. — The present English doctrine may be stated with reasonable accuracy to be, that in spite of the prin- ciple of the unwritten law which forbids a court to dissolve a mar- riage or separate the parties on their mutual consent or on the confession of one of them,^ and in spite of the act of Parliament which carefully points out for what causes separations may be judicially permitted,^ and the omission of any law allowing other causes, they may mutually agree to a separation either identical with or differing from the judicial one as they prefer, proceeding on a cause which the law allows, or forbids, or on no cause, as they choose, and the judicial tribunal will in equity enforce the specific performance of the agreement thus made in contravention the separation has actually taken place, N. C. 527; Speidel's Appeal, 107 Pa. 18; or is contemplated as immediate, and the Carpenter u. Osborn, 102 N. Y. 552. provision for the wife is made through i Manisty, J. in Wenuhak v. Morgan, the intervention of a trustee, and the par- 20 Q. B. D. 635, 639. ties have not subsequently come together ^ Ante, § 72, 73, 75, 76. again." And see Sparks v. Sparks, 94 ' Ante, § 153 and note. 540 CHAP. 5LI.] SEPARATIONS UNDER ARTICLES. § 1265 of what the law has enjoined.^ Or one party may bring against the other a suit for dissolution or separation, whereupon, with- out any proof of the plaintiiT's allegations, in the absence of which the court is forbidden to grant his prayer, and not the less so though the defendant admits their truth and joins in the prayer, the parties may make an agreement which will become an order of court, to do without sentence the thing prayed, or enter into any other reasonable form of separation, and the court will specifically enforce the agreement, — in other words, by a slight change in its mere procedure, will do what the law declares unlawful for it to do.^ And in whatever manner this agreement to a separation, which from the early ages downward the law of England has held to be impossible except on judicial sentence and on proofs aside from the consent or admissions of the par- ties, comes before any modern English tribunal, it is sustained as valid, even though it goes to the extent of prohibiting the par- ties from employing processes of the court established by law, in respect as well of what the law forbids to be done on their agree- ment as of provisions not prohibited.^ Such is believed to be the substantially exact doctrine, though of course no English judge would state it thus in combination with reasons demonstrating it to be wrong. § 1265. "Why? — Policy of Law. — The English judges appear to place the binding nature of this sort of bargain on the ground that, as the law gives the wife power to bring, to defend, and to settle divorce suits, she can make an agreement whereby such a suit is avoided,* — in oblivion, so far as the author has been able to discover, of the objection that from the early ages downward the law has forbidden the courts to authorize or sanction any separations in pais or in court except on proof of a dereliction legally defined and declared sufficient, never on the admissions or consent of the parties. The minor objection, falling far short of this one, that the separation is contrary to " public policy," or ' Besant !•. Wood, 12 Ch. D. 605 ; Hart v, Brown, Law Hep. 7 Eq. 185 ; Hooper v. V. Hart, 18 Ch. D. 670. Hooper, 3 Swab. & T. 251. It is com- 2 Smythe v. Smythe, 18 Q. B. D. 544. monly understood that, this doctrine is * Aldridge v. Aldridge, 13 P. D. 210; conclusively established by the decision of Clark V. Clark, 10 P. D. 188; McGregor the House of Lords in Wilson v. Wilson, V. McGregor, 20 Q. B. D. 529, 21 Q. B. D. 1 H. L. Cas. 538. 424; Hunt r. Hunt, 31 Law J. n. s. Ch. * Besant v. Wood, 12 Ch. D. 605; Mc- 161, 172, 4 DeG. F. & J. 221, 225 ; Rowley Gregor v. McGregor, 20 Q. B. D, 529, 532, V. Rowley, Law Rep. 1 H. L. Sc. 63 ; Brown 533. 541 § 1266 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. I the " policy of the law," ^ has been met as follows, — Said Jessel, M. R. : " You cannot lay down any definition of the term ' public policy,' or say it comprises such and such a proposition, and does not comprise such and such another ; that must be, to a great ex- tent, a matter of individual opinion, because what one man or one judge, and perhaps I ought to say one woman also, in this case, might think against public policy, another might think altogether excellent public policy. Consequently it is impossible to say what the opinion of a man or judge might be as to what public policy is. For a great number of years, both ecclesiastical judges and lay judges thought it was something very horrible, and against public policy, that the husband and wife should agree to live separate, and it was supposed that a civilized country could no longer exist if such agreements were enforced by courts of law, whether eccle- siastical or not. But a change came over judicial opinion as to public policy ; other considerations arose, and people began to think that after all it might be better and more beneficial for married people to avoid in many cases the expense and scandal of suits of divorce by settling their differences quietly by the aid of friends out of court, although the consequence might be that they would live separately, and that was the view carried out by the courts when it became once decided that separation deeds fer se were not against public policy." ^ And still, — § 1266. Child, distinguished. — Where the parties to a separa- tion deed had two children, and it provided that, subject to some rights of interchanging visits, one of them should live with the father and the other with the mother, public policy was in the same case wherein occurred these observations held to be violated by its not committing both to the father. So the father having sued for the custody of the one with the mother, the court trans- ferred it from her to him. Not unnaturally, therefore, as a main consideration for agreeing to the separation had been taken away from the woman, she determined to renew the cohabitation and trust to her chances for better terms. But the court deemed that the policy of the law made het agreement for separation controll- ing over her, and the consideration for it void as to him.^ We shall see in the second volume that our American law is not quite 1 Bishop Con. § 469-490. And see Marshall v. Marshall, 5 P. D. 2 Besant D.Wood, 12 Ch, D. 605, 620. 19, 23. 8 Besant v. Wood, 12 Ch. D. 605. 542 CHAP. XLI.J SEPARATIONS UNDER ARTICLES. § 1268 SO as to the rights of the father ; so this exquisitely refined prin- ciple of public policy and high honor does not prevail with us. Naturally, therefore, we have not adopted the judicial divorce by agreement in pais, enforced in court like a record, substan- tially to the overthrow both of the prior common law and of the statutes. § 1267. 'With u3 — the reasoning whereby a judge justifies him- self in changing the laws with his private opinions, instead of leaving it to the legislature, should not find favor. It would sub- vert the constitutional distmction between tlie legislative power and the judicial. Our judges are not permitted to administer their personal views as law. And " public policy," or the " policy of the law," is with us a thing adhering in the laws, not in men's individual understandings. Should our courts adopt the partial divorce in pais by agreement of the parties, giving it the effect of a judicial one, in obedience to a changed opinion in the public or in themselves, while yet the legislature had not spoken, they would be equally at liberty, on the coming of a like change of opinion, to hold a private agreement of dissolution to be equivalent to a public judicial one. So, without any command from the legisla- ture, they would transmute marriage into a private partnership, dissoluble at the will of the parties. II. The American and Former English Doctrine. § 1268. Bargaining to live in Separation. — In the section de- fining the doctrine of this chapter,^ and in the last sub-title, we saw that by the just doctrine married parties cannot validly agree to do what the law forbids to be done on their agreement ; namely, so to live in separation as to cut off the unforfcited right of either to demand a return to cohabitation. Thus if in a suit for judicial separation, on whatever allegations, the defendant should come forward and say he consented, and even join with the plaintiff in the prayer, the court would be forbidden by the law to grant it. Then, could the parties, having been thus refused or not asking because knowing the refusal would follow, come togetlier and make a valid agreement for what the court was forbidden by law to permit, they would be more powerful than the law and its administrators combined. Hence such separations I Ante, § 1261. - 543 § 1271 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. are, as to the mere question of living apart, contrary to the law and its policy, and void.^ But, — § 1269. Bargaining for Maintenance. — There is another princi- ple, equally distinct in our law ; namely, that a husband cannot by his own wrong free himself from the duty to maintain his wife.^ And whether he is in the wrong or not, and whatever the demerits of the wife, he may voluntarily contribute so much to her support as he chooses. No law or policy of the law, under any circumstances, forbids. Therefore he may law- fully and indissolubly bind himself to render her a specific main- tenance. Now, — § 1270. Doctrine and Limits. — Out of these two propositions, — namely, that married parties cannot validly contract to live in separation,^ yet the husband can obligate himself to render her a maintenance wherever she resides,* — 'comes the entire doctrine of separations under articles. Thus, — § 1271. Restitution of Conjugal Rights. — When we received our unwritten law from England, articles of separation, in whatever terms expressed, even though containing a stipulation not to bring a suit for the restitution of conjugal rights,^ were no bar to such suit.^ " This court," said Lord Stowell, " considers a private separation as an illegal contract, implying a renunciation of stipu- lated duties, — a dereliction of those mutual offices which the parties are not at liberty to desert, — an assumption of a false character in both parties contrary to the real status personm, and to the obligations which both of them have contracted in the sight of God and man, to live together ' till death them do part ; ' and ' Collins V. Collins, Phillips Eq. N. C. linger's Appeal, 35 Pa. 357 ; Dupre v. 153, 93 Am. D. 606 ; Tourney v. Sinclair, 3 Rein, 56 How. Pr. 228, 7 Abb. N. Cas. 256 ; How. Missis. 324; McKennau v. Phillips, Allen v. Affleck, 10 Daly, 509; Pettit v. 6 Whart. 571, 37 Am. D. 438 ; Smith v. Pettit, 107 N. Y. 677. Knowles, 2 Grant, Pa. 413 ; Mansfield v. <> Ante, § 69. Mansfield, Wrijjht, 284 ; McCrocklin v. ^ Mortimer v. Mortimer, 2 Hag. Con, McCrocklin, 2 B. Monr. 370; Calkins 310, 318; Barlee u. Barlee, 1 Add. Ec. V. Long, 22 Barb. 97. 301, 305 ; Lord Brougham in Warrender 2 Ante, § 1215, 1216, 1221. v. Warrender, 2 CI. & F. 488, 561 ; West- 3 Ante, § 1268. meath w. Westmeath, 2 Hag. Ec. Supp. 1, < Wallace v. Bassett, 41 Barb. 92 ; 44 ; Smith v. Smith, 2 Hag. Ec. Supp. 44, Rodney v. Chambers, 2 East, 283 ; Jee v. note ; Spering v. Spering, 3 Swab. & T. Thurlow, 2 B. & C. 547 ; Wilson v. Mush- 211 ; Brown v. Brown, Law Rep. 7 Eq. ett, 3 B. & Ad. 743; Blaker v. Cooper, 185; Anquez u. Anquez, Law Rep. 1 P. 7 S. & R. 500; Carson v. Murray, 3 Paige, & M. 176. Contra, under the new Eng- 483; Picket v. Johns. 1 Dev. Eq. 123; lish doctrine explained in the last sub- Thomas V. Brown, 10 Ohio St. 247; Dil- title, Clark v. Clark, 10 P. D. 188. 544 CHAP. XLI.] SEPARATIONS UNDER ARTICLES. § 1275 on which the solemnities both of civil society and religion have stamped a binding authority, from which the parties cannot re- lease themselves by any private act of their own, or for causes which the law itself has not pronounced to be sufficient, and sufficiently proved." ^ In another case Sir John Nicholl employed the broad language : " Any private understanding or agreement to live separate is not recognized by the law." ^ Again, — § 1272. A Nuiuty Suit — for impotence, brought in good faith, is not, it has been held, barred by a deed of separation.^ Moreover, — § 1273. Bequest on Condition. — A third person cannot validly do anything which tends to separate married parties. Therefore a bequest to a married woman on condition that she live apart from her husband is, as to the condition, void ; but the rest is good, so that she takes the bequest absolutely.* And — § 1274. Distinction restated. — In the language of Lord Brougham, spoken anterior to the summersault explained in the last sub-title, a deed of separation is of no force whatever " in any court whatever, for any purpose whatever; save and ex- cept one only, — the obligation contracted by the husband with trustees to pay certain sums to the wife, the cestui que trust." ^ Yet this language should not be misunderstood ; for any form of settlement upon the wife, which would be valid in cohabita- tion, is plainly not rendered inoperative because contained in a deed of separation. And — § 1275. Good in Part, Void in Part. — As in the case of a be- quest on condition to separate, where the direct provision stands and the condition is void,^ so also in many other cases the good part of a separation deed has been enforced, notwithstanding the illegality of another part.^ For example, while in England the covenant not to bring a suit for the restitution of conjugal rights was treated as of no effect, a wife who had made and was acting on such covenant, — being, in the words of Sir John Nicholl, an 1 Mortimer v. Mortimer, supra, p. 318. see Westmeath v. Westmeath, Jacob, 126, 2 Smyth u. Smyth, 4 Hag. Ec. 509, 137. 514. And see King v. Sansom, 3 Add. 5 Warrender v. "Warrender, 2 CI. & F. Ec. 277, 281 ; Beeby v. Beeby, 1 Hag. 488, 537. Con. 142, note ; Westmeath v. Westmeath, « Ante, § 1273. Jacob, 126, 1.36. ' Byrne w. Carew, 13 Irish Eq. 1. See ' G. ". G. 33 Md. 401. Elworthy v. Bird, 2 Sim. & S. 372 ; Wilson "■ Brown u. Peck, 1 Eden, 140. And «. Mushett, 3 B. & Ad. 743. VOL. I. -35 545 § 1278 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. ordinary provision " for enforcing, so far as may be, the continu- ance and preventing the determination of the separate state in which the parties covenant to Uve," and of a class " which nearly in all cases find their way into deeds of this nature, though nuga- tory as to any binding effect on the parties in this particular," i — could always compel the husband to pay her the agreed allowance. The distinction would seem to be that if the invalid part was the inducement to the valid, and through refusal to perform it the consideration has practically failed, or if the consideration itself was totally or as to an inseparable portion thereof void in law, the rest would become nugatory ; otherwise, not. But in the varying facts of cases, the application of this principle might not always be plain.2 And — § 1276. Disturbing the Separate Condition. — To an undefined extent, it is competent for the parties to agree not to disturb each other in their separate living, and such an agreement will be enforced.^ In principle, an agreement of this sort is very different from one not to discontinue the separation. But — § 1277. Future Separation. — From the foregoing principles it follows that any agreement encouraging a separation is void.* So that, for example, a husband's undertaking to pay money to his wife for her support, should they thereafter separate, cannot be enforced against him.^ Even if made before marriage, in view of a possible living apart, it is invalid.^ On the other hand, — §1278. Past — Immediate. — Where a separation has already taken place, or it is in agitation and immediately follows, a provi- 1 Sullivan r. Sullivan, 2 Add. Ec. 299, Cas. 538, 5 H. L. Cas. 40 ; Sanders v. 303,304. Kodway, 16 Eeav. 207; Webster u. Web- 2 Consult and compare Bishop Con. ster, 4 De G. M. & G. 437 ; Picket v. § 71, 73, 74; Scholey v. Goodman, 8 Johns, 1 Dev. Eq. 123; Marlow t. Mar- Moore, 350 ; Cropsey v. McKinney, 30 low, 77 111. 633. Barb. 47; Thomas ?■. Brown, 10 Ohio St. * Ante, § 1273; Randall v. Eandall, 247; Sterling u. Sterling, 12 Ga. 201; 37 Mich. 563. Shelthar v. Gregory, 2 Wend. 422 ; Jee v. '' Durant v. Titley, 7 Price, 577 ; Jee v. Thurlow,2 B. & 0. 547 ; Alhee r. Wyman, Thurlow, 2 B. & C. 547, 551 ; Hindley v. 10 Gray, 222 ; Bindley v. Mulloney, Law Westmeath, 6 B. & C. 200 ; Westmeath Rep. 7 Eq. 343 ; Van Order v. Van Order, v. Salisbury, 5 Bligh, N. s. 339; Proctor 8 Hun, 315; Ex parte Naden, Law Rep. v. Robinson, 35 Beav. 329; Simpson v. 9 Ch. Ap. 670. Howden, 3 Myl. & C. 97 ; Florentine v. ' Converse v. Converse, 9 Rich. Eq. Wilson, Hill & D. 303 ; P. v. Mercein, 8 535; Hitner's Appeal, 54 Pa. 110; Thomas Paige, 47, 68. i: Everard, 6 H. & N. 448 ; Bowers v. ^ Gaines v. Poor, 3 Met. Ky. 503 ; H. Clark, 1 Philad. 561 ; Lehr i.'. Beaver, 8 «. W. 3 Kay & J. 382 ; Cocksedge v. Cock- Watts & S. 102, 42 Am. D. 271 ; Wilson sedge, 14 Sim. 244; Cartwright v. Cart- V. Wilson, 31 Eng. L. & Eq. 29, 1 H. L. Wright, 3 De G. M. & 6. 982. 546 CHAP. XLI.J SEPARATIONS UNDER ARTICLES. § 1282 sion for the wife's support, if on an adequate consideration, will be enforceable ; ^ yet not, if made during cohabitation and no separation ensues.^ § 1279. Consideration. — The consideration must be adequate,^ for so it must be in every contract. For example, a wife's aban- doning a divorce suit and returning to live with her husband is a good consideration for his promissory note for her benefit.* And it may be the same with other adjustments of differences." So — § 1280. Fair. — The agreement must be free from fraud, rea- sonable, and fair.^ For example, a husband worth thirty thou- sand dollars, by undue influence and abuse obtained from his sick wife an agreement for a separation, he to provide for her during her life a house and lot worth four hundred dollars, and to pay her three hundred dollars a year. Thereupon the agreement was cancelled by the court, and five hundred dollars per annum were decreed to her.^ § 1281. Agreement to Cohabit. — An agreement by a husband to pay money if his wife will live with him is void as without consideration ; ^ but this sort of bargaining is not contrary to the policy of the law,^ and when on a satisfactory consideration it will be enforced.'" §1282. Interpretation — -(Prior Offence — Condonation — Breach, &c.). — A deed of separation is commonly interpreted as condi- tioned that the parties live chastely ; '^ so that, even under the modern English doctrine stated in our last sub-title, a divorce suit may be maintained against eitlier who afterward commits adultery.^ With us, sucli separation deed does not ordinarily or necessarily preclude a divorce, even for an antecedent offence ; 1 Reithmaier v. Beckwith, 35 Mich. * Switzer v. Switzer, 26 Grat. 574 ; 110; Fox V. Davis, 113 Mass. 255, 18 Am. Evans v. Edmonds, 13 C. B. 777; Kendall R. 476; Randalli'. Randall, 37 Mich. 563; v. Webster, 1 H. & C. 440; Daniels v. Gaines w. Poor, 3 Met. Ky. 503; Hitner's Daniels, 9 Colo. 133. Appeal, 54 Pa. 110; Chapman v. Gray, ' Willetts v. Willetts, 104 111. 122. 8 Ga. 341 ; Hutton .,. Ilutton, 3 Pa. St. 8 Roberts t. Frisby, 38 Tex. 219, 220. 100. And see Reithmaier v. Beckwith, 35 Mich. 2 Bindley v. MuUoney, Law Rep. 7 110; Van Order v. Van Order, 8 Hun, Eq. 343; Hindley «. Westmeath, 6 B. & 315; Phillips w. Meyers, 82 111. 67, 25 Am. 0. 200. R. 295. " Wilson V. Wilson, 14 Sim. 405; Jo- » Ante, § 76. drell V. JodreU, 9 Beav. 45 ; Phillips v. 1° Smith v. Smith, 35 Hun, 378. Meyers, 82 111. 67, 25 Am. B. 295. " Gaudy v. Gandy, 7 P. D. 77, 168, 30 * Adams i;. Adams, 91 N. Y. 381, 43 Ch. D. 57. Am. R. 675 ; Phillips v. Meyers, supra. i^ Morrall v. MorraU, 6 P. D. 98. 5 Burkholder's Appeal, 105 Pa. 3L 547 § 1286 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. but under special circumstances, and when expressed in special terms, it may amount to a condonation.^ So likewise adultery or other misconduct of the wife, or the bringing of a divorce suit against the husband, or her marriage to another person, does not necessarily or ordinarily make void his covenants to pay money to her ; yet the writing may be in terms to admit of this consequence.^ § 1283. A Renewal of Cohabitation — commonly terminates the agreement, since the usual consideration for it has ceased to oper- ate.^ But the form of a provision may be and often is such as to render it permanent, or to revive it on a resumption of the sus- pended separation.* § 1284. Administration. — On the death of one of the parties, the rights of administration remain to the other.* § 1285. Wife's Debts. — A third person may validly guarantee to the husband immunity from debts contracted by the wife dur- ing the separation.* Besides which, the question would appear to fall within principles stated in a preceding chapter.' § 1286. Form of Bargaining. — Prior to the comiug of the mod- ern statutes enlarging the wife's power of contract, the ordinary and clearly sufficient method was by a deed between the husband, the wife, and a third person acting as her trustee.* A trustee was always convenient, whether and in what circumstances indispen- sable we need not now inquire. The modern statutes differ in our 1 Posdick V. Fosdick, 15 R. L 130; u. Burger, Hoffman, 1 ; Smith w. Kehr, 2 Squires v. Squires, 53 Vt. 208, 38 Am. R. Dil. 50. 668 ; Goslin v. Clark, 12 C. B. N. s. 681 ; * Walker v. Beal, 3 Clif. 155 ; Webster Andrus v. Kandon, 34 Tex. 536 ; Brown v. v. Webster, 4 De G. M. & 6. 437 ; Randle Brown, Law Rep. 3 P. & M. 202 ; Thomas v. Gould, 8 Ellis & B. 457 ; McArthur o. V. Everard, 6 H. & N. 448; McAllister Webb, 13 Grant, U. C. 303; Walker u. V. McAllister, 10 Heisk. 345; Blaker v. WaHcer, 19 Grant, U. C. 37; McArthur Cooper, 7 S. & R. 500 ; Anderson v. An- v. Webb, 21 U. C. C. P. 358. derson, 1 Edw. 380 ; Miller v. Miller, Sax- ' Read v. Howe, 13 Iowa, 50. See ton, 386; Brown v. Brown, 5 Gill, 249. McLaren v. Bradford, 52 Ga. 648. 2 Baynon v. Batley, 8 Biug. 256, 1 ^ Ante, § 1261 ; Clark n. Fosdick, 13 Moore & S. 339 ; Dixon 11. Dixon, 9 C. E. Daly, 500; Harshberger v. Alger, 31 Green, 133, 8 C. E. Green, 316; Jee v. Grat. 52. Thurlow, 2 B. & C. 547 ; Scholey v. Good- ' Ante, § 1237-1239. mnn, 8 Moore, 350; Evans v. Carrington, " Marshall v. Rutton, 8 T. R. 545, 547; 2 De G. F. & J. 481. Durant o. Titley, 7 Price, 577 ; Williams 3 Keys V. Keys, 11 Heisk. 425 ; Carson v. Baily, Law Rep. 2 Eq. 731 ; Bratton v. V. Murray, 3 Paige, 483; Wells v. Stout, Massey, 15 S. C. 277; Jee v. Thurlow, 2 9 Cal. 479 ; Scholey v. Goodman, 8 Moore, B. & C. 547 ; Hindley v. Westmeath, 6 B. 350; Shelthar v. Gregory, 2 Wend. 422. & C. 200; Brown v. Brown, Law Rep. See Hitner's Appeal, 54 Pa. 110; Heyer 3 P. & M. 202, and multitudes of other cases. 548 CHAP. XLI.J SEPARATIONS UNDER ARTICLES. § 1293 States, but constructively by all of them the question is more or less modified. In England, where the like statutes prevail, yet without a distinct and special reference to them, it is of late held, it would seem justly, that the power of a married woman to sue in her own name for divorce or separation, independently to carry on the suit against her husband, and to terminate or compromise it, gives her by implication the authority to unite with him, in her own name and without a trustee, in articles of separation.^ III. How the Doctrine is applied in the Respective States. § 1287. This Snb-title — will contain references to most of the cases in the several States, not undertaking to cite every case, and point out such particulars in the decisions as appear specially desirable. §1288. California. — An agreement for immediate separation is good. Reconciliation will avoid it, the consideration failing.^ There are questions depending more or less upon statutes.'^ § 1289. Colorado. — The contract of separation is valid, but it must be fair, reasonable, and untainted by fraud.* § 1290. Connecticut. — The common-law doctrine is the same as in California.^ § 1291. Georgia. — The same. A valid agreement may be made through a trustee, for an immediate separation, and a separate allowance to the wife.^ § 1292. Illinois. — The like in Illinois.'^ A condition that the wife shall live in another State does not debar her from returning to defend a suit for divorce. And where, after dismissal of the suit, the husband induced her to remain under the fraudulent pretence of reconciliation, her stay was deemed no breach of the condition.* The agreement must be untainted by fraud.^ § 1293. Indiana. — The husband's undertaking in a separation ' McGregor v. McGregor, 20 Q. B. D. see Deming v. Williams, 26 Coun. 226, 68 529, 21 Q. B. D. 424 ; Besant v. Wood, 12 Am. D. 386; Goodwin v. Goodwin, 4 Day, Cli. D. 605 ; Marshall v. Marshall, 5 P. D. 343. 19. See Speidel's Appeal, 107 Pa. 18. ^ Chapman v. Gray, 8 Ga. 341. And 2 Wells V. Stout, 9 Cal. 479. And see see Sterling v. Sterling, 12 Ga. 201. How Joyce V. McAvoy, 31 Cal. 273, 89 Am. D. on the death of the wife, McLaren v. Brad- 172. ford, 52 Ga. 648. ' Nissen v. Bendixsen, 69 Cal. 521 ; In ' Phillips v. Meyers, 82 HI. 67, 25 Am. re Noah, 73 Cal. 583, 2 Am. St. 829. ' E. 295. * Daniels v. Daniels, 9 Colo. 133. ^ Marlow i;. Marlow, 77 111. 633. * Nichols V. Palmer, 5 Day, 47. And » Willetts v. Willetts, 104 111. 122. 549 § 1299 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. deed to pay annually to a trustee, for the wife's support, a sum from which should be deducted whatever he might be compelled to pay for debts afterward contracted by her, is valid.'' So there may be a valid separation without a trustee. If fully executed on the husband's part, reasonable, and on adequate consideration, equity will uphold it though it was by parol.^ § 1294. Iowa. — Separation deeds through the intervention of trustees are good.^ On the husband's death, the wife is not de- prived of administration.* § 1295. Kentucky. — Equity will not enforce a provision for living separate. It is against public policy.^ But the husband's covenants for support, made after a separation has taken place, or made in view of an immediate separation, bind him.^ There should be a trustee.'^ § 1296. Maryland. — The court will not compel a husband who is living under a separation agreement without trustees, contain- ing no covenant of indemnity against the wife's debts, and no provision allowing her to transfer the title to real estate therein set off to her, to consummate by his deed a title in lands which she has attempted by her separate deed to convey.^ Still in proper circumstances effect is given to deeds of separation.^ § 1297. Massachusetts. — The usual doctrines prevail in this State.io § 1298. Michigan. — The same.^^ § 1299. Mississippi. — Without the intervention of a trustee, a separation deed is for every purpose void.'^ But the husband is bound to a trustee to fulfil his covenants for the support of 1 Keed v. Beazley, 1 Blackf. 97. Hutchius v. Dixon, 11 Md. 29; Walliugs- 2 Button V. Button, 30 Ind. 452. ford v. Wallingsford, 6 Har. & J. 485 ; 3 Goddard u. Beebe, 4 Greene, Iowa, Kremelberg v. Kremelberg, 52 Md. 553. 126; Eobertson v. Robertson, 25 Iowa, i" Holbrook v. Comstock, 16 Gray, 109; 350. Fox V. Bavis, 113 Mass. 255, 18 Am. R. * Read v. Howe, 13 Iowa, 50. 476 ; Albee v. Wyman, 10 Gray, 222 ; Car- 5 McCroeklin v. McCrocklin, 2 B. ley v. Green, 12 Allen, 104; HoUenbeck Monr. 370. v. Pixley, 3 Gray, 521 ; Page v. Trufant, 6 Gaines v. Poor, 3 Met. Ky. 503. And 2 Mass. 159, 3 Am. D. 41 ; Winn v. San- see Loud V. Loud, 4 Bush, 453. ford, 148 Mass. 39. ' Simpson v. Simpson, 4 Dana, 140. i' Reithmaier v. Beckwith, 35 Mich. See Crostwaight v. Hutchinson, 2 Bibb, 110; Randall w. Randall, 37 Mich. 563. 407, 5 Am. B. 619. 12 Carter v. Carter, 14 Sm. & M. 59; ' Lippy V. Masonheimer, 9 Md. 310. Tourney v. Sinclair, 3 How. Missis. 324; 9 McCuhbin H. Patterson, 16 Md. 179; Mills v. Richards, 34 Missis. 77. See, Brown v. Brown, 5 Gill, 249 ; Helms v. however, Wells v. Treadwell, 28 Missis. Pranciscus, 2 Bland, 544, 20 Am. B. 402; 717. 550 CHAP. XLI.J SEPARATIONS UNDER ARTICLES. § 1302 the wife.^ The wife's covenants are not, even when made to the trustee, enforceable against her ; so she cannot in this way bar her dower.2 § 1300. Missouri. — Articles of separation will not bar a divorce suit for subsequent adultery .^ Nor does the court incline to give them much force of any sort ; utterly refusing to follow, on this subject, the lead of the equity tribunals of England. " And," it was observed in one case, we " sincerely hope that the time is far distant when the condition of society may make it proper for Amterican courts to do so." * § 1301. New Jersey. — If, pursuant to articles of separation, a husband commits money to trustees for " the sole and sepa- rate use of the wife and to be subject to her sole order and dis- position," but the trustees do not sign the articles, rendering tliem inoperative as an agreement, yet if on faith of them she lives apart from him, and makes a testamentary disposition of the money, her administrator may recover it to the exclusion of the husband.^ The English doctrine seems to be followed, that, where the allowance to the wife is not paid, one furnishing her with necessaries can compel payment for them of the husband.^ Her subsequent adultery will not render his covenants void.^ § 1302. New York. — There are more reported cases on this subject in New York than in any other State. They hold sepa- ration deeds, made through trustees, valid in the sense already explained,^ if the separation is immediate.^ The agreement to live separate is illegal ; ^^ it is no bar to a divorce ; ^^ yet collateral undertakings, — as, to support the wife, — though accompanied by the mutual promise of living apart, bind the husband.^^ Where 1 Tourney v. Sinclair, supra, p. 326, Barb. 487 ; Van Order v. Van Order, 8 327, opinion by Sharkey, C. J. Hun, 315 ; Dupre v. Rein, 7 Abb. N. Cas. 2 Stephenson v. Osborne, 41 Missis. 256; Allen w. Affleck, 10 Daly, 509; Clark 119, 124, 125, 90 Am. D. 358. v. Fosdick, 13 Daly, 500; Mann v. Hul- 3 Stokes V. Stokes, 1 Misso. 320, 324. bert,38 Hun, 27; Bolen v. Bolen, 44 Hun, * Gonaolis v. Douchouquette, 1 Misso. 362 ; Adams «. Adams, 91 N. Y. 381 ; Car- 666, 668, opinion by Wash, J. ; Chouteau penter v. Osborn, 102 N. Y. 552. See Pet- V. Douchouquette, 1 Misso. 669. tit v. Pettit, 107 N. Y. 677. 5 Emery v. Neighbour, 2 Halst. 142, 11 ' Florentine v. Wilson, Hill & D. 303; Am. D. 541. Calkins v. Long, 22 Barb. 97 ; P. v. Mer- s MiUer v. Miller, Saxton, 386, 394, cein, 8 Paige, 47. ' Dixon V. Dixon, 8 C. B. Green, 316, i" Rogers v. Rogers, 4 Paige, 516, 27 9 C. E. Green, 133. Am. D. 84. * Heyer u. Burger, Hoffman, 1 ; Carson i' lb.; Anderson v. Anderson, 1 Edw. V. Murray, 3 Paige, 483 ; Wallace v. Bas- Ch. 380. sett, 41 Barb. 92 ; Magee v. Magee, 67 " Champlin v. Champlin, Hoffman, 55 ; 661 § 1305 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. the contract is the ordinary executory one, there must be a con- sideration for the husband's promises ; but if he conveys property to a trustee put in possession, the transaction is thereby executed, and without a consideration the property becomes a gift to the trustee for the benefitxof the wife.^ It was in one case held that a release by the husband to the defendant in an action of slan- der commenced by the wife in the name of husband and wife is effectual, though they are living apart under articles wherein he stipulates not to interfere with her, and to permit her to prose- cute suits in this way.^ A coming together of the parties puts an end to the articles, and the wife's subsequent abandonment of the husband does not revive them.^ § 1303. North Carolina. — The common doctrines on this sub- ject appear to prevail in North Carolina.* § 1304. Ohio. — Articles providing for an immediate separation are not void.^ The other ordinary doctrines also prevail.^ § 1305. Pennsylvania. — Equity will not enforce stipulations be- tween married parties to live separate.' Yet the part of a separa- tion deed which concerns property will be carried out, even though there are no trustees ; as, after the death of one of the parties, where it had been acted on during their joint lives.^ Separations tiirough trustees appear to have the same effect in this State as generally elsewhere.^ The undertaking of the trustees, commonly Anderson o. Anderson, supra; Fenner w. ^ Thomas v. Brown, 10 Ohio St. 247; Lewis, 10 Johns. 38; Hej'er v. Burger, Garver w. Miller, 16 Ohio St. 527 ; Mans- HofCman, 1; Calkins v. Long, 22 Barb, field ii. Mansfield, Wright, 284. And see 97; Cropsey v. McKinney, 30 Barb. 47. Huber u. Huber, 10 Ohio, 371; Wood ». And see Simmons v. McElwain, 26 Barb, Warden, 20 Ohio, 518. 419. ' McKennan v. Phillips, 6 Whart. 571, 1 Griffin v. Banks, 37 N. Y. 621. 37 Am. D. 438. "■ Beach v. Beach, 2 Hill, N. Y. 260, 38 's Hutton v. Hutton,3 Pa. St. 100, 104' Am. D. 584. Bouslaugh v. Bouslaugh, 17 S. & K. 361 3 Shelthar v. Gregory, 2 Wend. 422. And see, for analogous points, Walsh v. And see Heyer v. Burger, supra ; Carson Kelly, 34 Pa. 84 ; Dillinger's Appeal, 35 V. Murray, 3 Paige, 483. See also on the Pa. 357 ; Burkholder's Appeal, 105 Pa. general question of these articles, Mercein 31 ; Speidel's Appeal, 107 Pa. 18. V. P. 25 Wend. 64, 35 Am. D. 653 ; ¥. v. 9 Blaker u. Cooper, 7 S. & R. 500 ; Mercein, 3 Hill, N. Y. 399 ; Scheive v. Lehr v. Beaver, 8 Watts & S. 102, 42 Am. Kaiser, 52 Barb. 109, 36 How. Pr. 193. D. 271 ; DufCy o. The Insurance Co. 8 * Collins V. Collins, Phillips Eq. N. C. Watts & S. 413 ; Fisher v. Filbert, 6 Pa. 153, 93 Am. D. 606; Huntly v. Huntly, 6 61 ; Hitner's Appeal, 54 Pa. 110; Bous- Ire. Eq. 514 ; Picket v. Johns, 1 Dev. Eq. laugh v. Bouslaugh, 17 S. & R. 361 ; Wag- 123; Elliott y. Elliott, 1 Dev. & Bat. Eq. ner's Estate, 2 Ashm. 448; Bowers v. 57 ; Sparks ti. Sparks, 94 N. C. 527. Clark, 1 Philad. 561. s Bettle V. Wilson, 14 Ohio, 257. 552 'chap, xli.] separations under articles. § 1311 inserted in the articles, to indemnify the husband against the wife's debts, is not essential to their validity.^ § 1306. Rhode Island. — Separation articles, containing no ex- press stipulation against divorce, will not bar the divorce suit for a prior dereliction.^ § 1307. South Carolina. — A Settlement upon the wife on sepa- ration is valid against the husband's prior creditors, if the trustee covenants to save him harmless from debts she may contract.^ His bond to her trustee, reciting that he and she have agreed to live apart, and conditioned to pay the trustee an annual sum for her use, is good. It was so where the bond was given in com- promise of her suit for alimony.* § 1308. Tennessee. — A husband and his wife having agreed to live separate, he conveyed to trustees one third of his property for her maintenance. They covenanted that she should not claim more of his estate ; and if she did, and obtained it, they would indemnify him. On his death, this transaction was held not to bar her of dower and the distributive share ; yet she could not have both them and the settlement, she must elect. The election was made by bringing her bill for dower and such share. She must account for the trust property expended after, not before, her husband died. It was observed that the trustees have no con- trol over the woman's acts, " yet the court will see them secured from injury, precedent to affording the relief prayed." ^ § 1309. Texas. — Separation deeds are without validity.^ § 1310. Vermont. — Articles of separation are valid, within the limits of the common American doctrine, not in all circumstances or for all purposes. And in a particular case, not always or as of course, they may operate as a condonation, so as to bar a divorce suit for a prior cruelty.'^ §1311. Virginia. — The separation contract, to be valid, must be equitable and free from fraud.^ In other respects, also, the common American doctrine is followed in this State.^ ' Smith V. Knowles, 2 Grant, Pa. 413. Goodrich v. Bryant, 5 Sneed, 325 ; Mc- 2 Fosdick v. Fosdick, 15 R. I. 130. AlUster v. McAllister, 10 Heisk. 345; ' Hargroves v. Meray, 2 Hill Ch. 222. Keys v. Keys, 11 Heisk. 425. » Buckner v. Euth, 13 Rich. 157. And 6 Andrus v. Randon, 34 Tex. 536. see Converse v. Converse, 9 Rich. Eq. 535 ; And see Roberts v. Frisby, 38 Tex. 219. Bratton v. Massey, 15 S. C. 277. ' Squires v. Squires, 53 Vt. 208, 3S ^ Watkins v. Watkins, 7 Yerg. 283, Am. R. 668. 294, 295, opinion by Catron, C. J. And 8 Switzer v. Switzer, 26 Grat. 574. see Parham v. Parham, 6 Humph. 287 ; ^ Harshberger v. Alger, 31 Grat. 52. 553 § 1312 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V, § 1312. The Doctrine of this Chapter restated. The law is a harmonious system, and what it forbids the courts to do with the consent of tlie parties, it does not permit the par- ties to do out of court. It has always forbidden judicial divorces on default of defendants, on their acknowledgments in or but of court, or on their and the plaintiffs' agreements. Marriage is a public institution as well as private ; the public is in effect a party to every marriage and to every divorce ; and two persons who have united in matrimony cannot by their mutual consenting create a separation even from bed and board, — for this is an act requiring also the sanction of the third party, the public. In circumstances pointed out by the laws, the courts will give this sanction in the form of a judicial decree. So that bargainings for a separation, made simply between the married parties, whether with or with- out the intervention of a trustee, are nugatory. But there is no public interest which under any circumstances forbids a husband to maintain his wife, or invalidates his contracts to provide her a support. So that articles of separation are good as provisions for maintenance, but not as a bar to cohabitation. 554 CHAP. XLII.] WIPE ACTING SOLE IN SEPARATION. § 131^ CHAPTER XLII. THE WIPE ACTING IN SEPARATION AS SOLE. § 1313. Introduction. 1314-1322. Preliminaries. 1323-1326. Husband's Civil Death. 1327-1334. English Analogies from Civil Death. 1335-1353. Doctrine in oar Respective States. 1354. Doctrine of Chapter restated. § 1313. How Chapter divided. — We shall consider, I. Prelimi- naries ; II. The Husband's Civil Death ; III. The English Analo- gies from Civil Death ; IV. The Doctrine in our Respective States. I. Preliminaries. § 1314. Modern Statutes — have SO extensively abolished the disabilities of coverture, whether the married parties are living separately or in cohabitation, that the occasions for resorting to the doctrines of this chapter are not numerous and they are constantly diminishing. Yet this part of the law is not super- seded, and without it the elucidations of these volumes would be incomplete. Looking at the several questions aside from these statutes, — § 1315. Separation as affecting Property. — The rights of prop- erty between married parties are in general the same whether they live in cohabitation or apart. Yet in special circumstances the separation is taken into the account in adjusting them.^ ' The reader may consult High v. Donald, 1 Eich. 27 ; Vanghan v. Buck, Worley, 33 Ala. 196, 199; Chouteau v. 3 Eng. L. & Eq. 135, 1 Sim. N. s. 284; Douchouquette, 1 Misso. 669 ; Ames v. Parsons o. Parsons, 9 N. H. 309, 32 Am. Chew, 5 Met. 320; Wooters v. Peeny, D. 362; Roland v. Logan, 18 Ala. 307 ; 12 La. An. 449 ; Joffrion v. Bordelon, Lawrence v. Spear, 17 Cal. 421 ; Cain v. 14 La. An. 618; McCormick v. McCor- Bunkley, 35 Missis. 119; Chouteau v. mick, 7 Leigh, 66 ; The Judge of Line- Merry, 3 Misso. 254 ; Norcross v. Rodgers, stone V. Kerr, 17 Ala. 328 ; Schindel v. 30 Vt. 588, 73 Am. D. 323 ; Abernathy v. Schindel, 12 Md. 294 ; Pressley v. Me- Abernathy, 8 Fla. 243 ; Krupp v. SchoU, 555 § 1322 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. § 1316. Presumed Death of Husband. — When a husband has been absent seven years, not heard from, he is ordinarily pre- sumed to be dead,^ — a question in some of its aspects already considered.^ The books have cases in which, within this rule, the acts of a deserted wife were sustained as those of a feme sole ; it being presumed that the husband was dead.^ Still, — § 1317. Not in Tact dead. — If the husband was not in fact dead, his reappearance will avoid — it may not be certain to what extent — acts incompetent for her in coverture.* § 1318. Feme Sole Trader. — The doctrine oi feme sole trader, or free trader, known in a few of our States, and by the author explained in " Married Women," ^ is not exclusively applicable to wives in separation. § 1819. Disabilities in Separation. — In general, a wife is under the same disabilities from coverture in separation as in cohab- itation.^ For example, — § 1320. Deed, Note, &c. — At common law, her deed conveying her real estate is void ; ' so is her promissory note,^ or her bond.^ § 1321. Credit for Necessaries. — As explained in another chap- ter,^'' ordinarily she cannot at law pledge her own credit even for necessaries, — a proposition not without qualifications.^^ Now, — § 1322. Exceptions. — The purpose of the remaining sub-titles is to point out exceptions to this doctrine of the wife's incapacity in separation ; thus, — 10 Pa. 193; Rorer v. O'Brien, 10 Pa. 212; v. Merry, 3 Misso. 254; Lake o. Ruffle, Tyson's Appeal, 10 Pa. 220; Rees v. 6 Nev. & M. 684. Waters, 9 Watts, 90 ; Van Note v. Dow- * Mayhugh v. Rosenthal, 1 Cine. 492 ; ney, 4 Butcher, 219 ; Gaston v. Frankum, McNamara u. Fisher, 3 Esp. 18. ll'Eng. L. & Eq. 226, 16 Jur. 507 ; Hall * 2 Bishop Mar. Women, § 528-532. V. Faust, 9 Rich. Eq. 294; Whitten v. ^ Ante, § 1315,1317; Kobiuson y. Rey- Whitten, 3 Cush. 191; Johnson ^. John- nolds, 1 Aikens, 174. son, 4 Harring. Del. 171 ; Moores v. Car- ' Thorndell v. Morrison, 25 Pa. 326. ter. Hemp. 64 ; Kee v. Vasser, 2 Ire. Eq. ^ Chouteau t?. Merry, 3 Misso. 254 ; 553, 40 Am. D. 442; McKinnou v. Mc- Imhoff v. Brown, 30 Pa. 504; Painter y. Donald, 4 Jones Eq. 1, 72 Am. D. 574; Weatherford, 1 Greene, Iowa, 97; Moses West V. West, 10 S. & R. 445. v. Fogartie, 2 Hill, S. C. 335. 1 1 Greenl. Ev. § 41 ; ante, § 950. » Freer v. Walker, 1 Bailey, 184. 2 Ante, § 949-955. w Ante, § 1246. 3 Boyce v. Owens, 1 Hill. S. C. 8; " Shaw v. Thompson, 16 Pick. 198; Cusack !). White, 2 Mill, 279, 12 Am. D. Wooster y. Northrup, 5 Wis. 245; Chil- 669; King p. Paddock, 18 Johns. 141; dress v. Mann, 33 Ala. 206; 1 Bishop Rosenthal v. Mayhugh, 33 Ohio St. 155; Mar. Women, § 895, and the chapter com- Foulks r. Rhea, 7 Bush, 568. And see mencing § 840. Tucker v. Scott, Penning. 955 ; Chouteau 556 CHAP. XLII.] WIFE ACTING SOLE IN SEPARATION. § 1326 II. The Husband's Civil Death. § 1323. Banishment — Abjuration. — The doctrine of civil death had its day in the ancient law of England. There were two forms of it, — banishment and abjuration of the realm. The former, it appears, was inflicted by direct sentence of a court in punishment for crime ; the latter was voluntarily accepted, with an accom- panying oath, to escape the heavier penalty of death.^ Banish- ment was afterward merged in transportation ; ^ but abjuration of the realm was entirely abolished.^ § 1324. Capacitating 'Wife — (Relegation). — The husband's civil death, the same as natural death, gave the wife the capacity to sue and be sued as sole. " But," adds Coke, " if the husband, by act of Parliament, have judgment to be exiled but for a time, which some call a relegation, that is no civil death." * And — § 1325. Further as to which. — " If the husband had aliened the land of his wife, and after had committed felony, and been abjured the realm, the wife shall have a cui in vita in his life- time, . . . for that the abjuration was a civil death." ^ So any other form of his civil death — as, becoming a professed religion- ist, or the like — would work a termination of an estate for his life, and let in the party in expectation ; unless it was expressly limited for the " natural " life, instead of simply the life.^ Hence, also, in the words of Roscoe, " where the husband of the Lady Sandys was banished during life by act of Parliament, the court were of opinion that she might in all things act as a feme sole as if her husband were dead, that the necessity of the case re- quired she should have such power, and that a will made by her was good." ^ § 1326. Later. — Civil death, in the sense just explained, is not known in our country ; ^ or much, if at all, at present in Eng- land. Yet — 1 4 Bl. Com. 332, 333, 377 ; Jacob Law 6 2 Bl. Com. 121; Canterbury's Case, Diet. tit. Abjuration, Banishment. 2 Co. 46 a, 48 4. 2 Jacob Law Diet. tit. Transportation. ' Note to Eingsted o. Lanesborough, 3 4 Bl. Com. 333. See some excellent 3 Doug. 197, 206; referring to Portland reasons for the abolishment in the pream- v. Prodgers, 2 Vern. 104. See also New- ble of Stat. 22 Hen. 8, e. 14. some v. Bowyer, 3 P. Wms. 37. And see * Co. Lit. 133 a. And see Wilmot's Wright v. Wright, 2 Des. 242 ; Troughton Case,- Sir F. Moore, 851. v. Hill, 2 Hayw. 406. ^ Co. Lit. 133 a. ^ And see 1 Bishop Crim. Law, § 967- 971. 557 § 1330 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. III. The English Analogies from Civil Death. § 1327. Doctrine in General. — Resulting from this old law of civil death, or from analogies to it, the courts in modern times both in England and in our country have permitted wives living apart from their husbands to sue and be sued as sole. Yet the analogies have not been made perfect, nor has the doctrine been at all times and places uniform and distinct. To explain,-^ § 1328. EngUsh Transportation. — In spite of the old non-capacity of the wife to act as sole on the husband's banishment for a terra of years,^ it appears to be the English doctrine that his trans- portation on a seven-years sentence for felony will have this effect, down to the time of his actual return on the sentence expiring.^ In like manner, — § 1329. Husband an Alien Enemy. — The wife of an alien enemy, " under," as Lord Holt expressed it, " an absolute disability to come and live here," has been held competent to act as sole ; ^ but a later authority denies her capacity to sue in an English court.* § 1330. Breaking from Analogies to Civil Death. — In the fore- going cases there is, at least, a semblance of analogy to the old doctrine of civil death ; though, as they admit of what may be termed a subsequent coming to life, there is ground for deeming the analogy not perfect. But there have been in England some attempts to break away from this anchorage, and permit the wife to sue and be sued under various other circumstances. Thus in the time of Lord Mansfield, in several cases, this able judge by his influence carried the court a good way out to sea. In one, it was held that the wife of a person who resides in Ireland, herself living in England, and having a separate maintenance under articles of separation, may be sued after the death of her husband for a debt contracted by her in England during his life." In an- other, the decision was that 2, feme covert living separate from her husband, and having a sufficient separate maintenance duly paid her, may be sued alone on a contract made by her for necessaries. 1 Ante, § 1324. hare been considered by him as a, qnes- '^ Carrol v. Blencow, 4 Esp. 27. And tion of much doubt." But see Ex parte see Eingsted o. Laneaborough, 3 Doug. Franks, 7 Bing. 762. 197 and notes. Mr. Roscoe observes, lb. ^ Derry v. Mazarine, 1 Ld. Eaym. 147. p. 206: "This point is adverted to by ' De Wahl v. Brauiie, 1 H. & N. 178. Lord Eldon, C. J. in Marsh v. Hutchin- ^ Ringsted u. Lanesborough, 3 Doug. son, 2 B. & F. 226, 232, and appears to 197. 558 CHAP. XLII.] WIFE ACTING SOLE IN SEPARATION. § 1332 " As the usages of society alter," said Lord Mansfield, " the law must adapt itself to the various situations of mankind." The case was put by the court on the principle that because the hus- band was not liable, therefore the wife should be.' Afterward in a famous case the doctrine was maintained that a feme covert, living apart from her husband, and having a separate maintenance, may contract and be sued as a feme sole, and her second husband is liable for such debt.^ But — § 1331. Returning thereto. — Later, under Lord Kenyon, these decisions were overturned ; the court holding that a feme covert cannot contract and be sued as a feme sole, though living apart from her husband on a separate maintenance secured by deed.^ Such was the earlier English law.* And the principle was applied to a case in which the husband not only deserted his wife but abandoned also (not abjured, which is a proceeding of record) permanently the realm : here, though the absence by desertion had continued four years, and the husband had not been heard of, and the wife had conducted business as sole, she was not per- mitted to maintain in her own name an action of trespass for entering her premises and carrying off goods which she had accumulated.^ Thus the doctrine became definitively established. § 1332. Alien never in England. — By different English judges, it has been both afifirmed and denied that if the husband never resided in England, being an alien but not an enemy, or if he has withdrawn permanently from the kingdom, the wife may appear in court as a /erne sole. The cases on this subject are reviewed in Bright on " Husband and Wife," and the result seems to be that the affirmative of this is not established, — though perhaps the negative is not, so as to preclude future discussion should some extreme case arise.^ On the whole, — ' Barwell u. Brooks, 3 Doug. 371, 373. Middlesex, 15 East, 607; Barden v. Kev- 2 Coybett v. Poelnitz, 1 T. R. 5. erberg, 2 M. & W. 61. 8 Marshall v. Rutton, 8 T. R. 545. * See, for a full view of this matter, 2 And see 2 Bright Hus. & Wife, 69; 2 Kent Com. 154 et seq. Kent Com. 160. Chancellor Kent, in this * Bogget n. Frier, 11 East, 301. And place, mentions some cases as having see to the same effect, Farrer v. Granard, shaken the decision in Corbett v. Poel- 1 New Rep. 80; McNamara v. Fisher, 3 nitz before this case of Marshall v. Rut- Esp. 18; Marsh v. Hutchinson, 2 B. & P. ton arose ; namely, Compton v. Collinson, 226. 1 H, Bl. 334, 350 ; EUah v. Leigh, 5 T. R. ^2 Bright Hus. & Wife, 71-74 ; refer- 679; Clayton !). Adams, 6 T. R. 604. For ring to Marsh v Hutchinson, 2 B. & P. later adjudications, see Meyer v. Haworth, 226 ; Chambers v. Donaldson, 9 East, 471 ; 8 A. & E. 467; Smith v. The Sheriff of Bbgget v. Frier, 11 East, 301; Johnston 659 § 1334 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. § 1333. Conclusion as to English Doctrine. — The doctrine of the English courts would seem to be, that unless the husband is absent from the kingdom under circumstances which preclude his presence there, — preclude, as of law, not merely as of his voli- tion, or will, — the wife cannot be treated in a court of common law as sole. She can neither sue in it, nor be sued. If she has a separate estate, she may perhaps bind it by her contract in a way enabling the creditor to reach it in a court of equity,^ — a per- plexed question, not within the scope of the present volumes.^ Even — § 1384. Wife's Remedy for Torts. — Though the wife has suf- fered a wrong to her person, and the husband and she are in sep- aration, she has no clear and perfect remedy at the common law. She may bring a suit in the name of her husband, or in the joint names of herself and him, as the case shall require ; and though it is in general and perhaps always in his power to release the action and thus defeat her remedy,^ there is a class of authorities which apparently hold that while the court will in proper cir- cumstances, on his application, direct her to indemnify him against the -costs, it will not permit him to discontinue the suit or otherwise to put an end to the action in fraud of her right.* It is probably the true view that if there is a mere separation in pais, and no judicial sentence, the husband can always at law defeat the action by releasing it ; and hitherto we have no distinctly V. Kirkwood, 4 Drnry & Warren, 379; the modern English law: "The old rule Williamson v. Dawes, 2 Moore & S. 352 ; is deemed to be completely re-established, Kay t'. Pienne, 3 Camp. 123, see 2 B. & P. that an action at law cannot be main- 233 ; Stretton i. Buanach, 4 Moore & S. tained against a married woman unless 678, 1 Bing. N. C. 139 ; Barden v. Kever- her husband has abjured the realm." 2 berg, 2 M. & W. 61. In De Gaillon «. Kent Com. 161. L'Aigle, 1 B. & P. 357, — a case in which 1 Ante, § 1246, 1317; McNamara i-. it did not appear whether or not the hus- Fisher, 3 Esp. 18 ; De Wahl v. Braune, 1 band had ever resided in England, — it H. & N. 178; Lake v. Ruffle, 6 Nev. & M. was held that where he was permanently 684. abroad, and the wife bad traded and ob- " As to which see 1 Bishop Mar. tained credit in England as a, feme sole. Women, § 840 et seq. representing herself to be such, she could ^ 1 Bishop Mar. Women, § 912. be made answerable to the creditor in a * Chambers v. Donaldson, 9 East, 471 ; suit at common law; but this author, vol. Innell v. Newman, 4 B. & Aid. 419; Har- 2, p. 70, sets down this case as among rison u. Almond, 4 Dowl. P. C. 321 ; Suter those which were overruled in Marshall v. v. Christie, 2 Add. Ec. 150 ; Rock v. Slade, Button, 8 T. R. 545. See also Hatchett 7 Dowl. P. C. 22. And see Lynch v. V. Baddeley, 2 W. Bl. 1079 ; Gilchrist v. Knight, 9 H. L. Cas. 577, 5 Law Times Brown, 4 T. R. 766 ; Lean v. Schutz, 2 n. s. 291. W. Bl. 1195. Chancellor Kent says of 660 CHAP. XLII.] WIFE ACTING SOLE IN SEPARATION. § 1338 admitted equity jurisdiction to interfere in her behalf. If, by- stipulation between the husband, wife, and a trustee, in articles, the fund in controversy is to be for the wife's separate use,^ the case is different. The reader perceives that the doctrine of this section relates to the ordinary cases of separation, not to those in which the wife sues alone by reason of the husband's abjuration of the realm and the like. IV. The Doctrine in our Respective States. § 1335. What here. — We have on this subject no such uniform opinions as will make it safe to set down anything as American doctrine. Therefore little more will be attempted than a refer- ence to some cases in the order of the States. § 1836. Alabama. — Where a husband permanently abandons both his wife and the State, she may contract and sue and be sued as sole? Chilton, J., observed that doubtless the rigid rules of the common law would not permit this, though the English decisions as to it are not consistent. " But," he added, " a more liberal rule, and one which, we think, is more consistent with reason and justice, seems to obtain in this country." ^ At pres- ent, there are statutes regulating the question.* § 1337. Connecticut. — Under a statute perhaps repealed, but probably not, " whenever any married woman shall have been abandoned by her husband, it shall be lawful for her during the continuance of such abandonment to transact business in her own name, and to sue and be sued in all courts of justice." A case is not the less within this provision though the abandonment was justifiable by reason of the wife's fault. Nor need it have con- tinued for any particular time, if meant to be perpetual.^ It authorizes a suit even against the husband.^ § 1338. Illinois. — The tribunals of this State have gone a great way in maintaining the separate capacity of the wife. " Where," said Skinner, J., " the husband compels the wife to live separate from him, either by abandoning her or by forcing her by whatever means to leave him, and such separation is not merely temporary 1 Innellw. Newman, supra. ' Mead v. Hughes, 15 Ala. 141, 147. 2 Arthur v. Broadnax, 3 Ala. 557, 37 * Ex parte C,ole, 28 Ala. 50 ; Young v. Am. D. 707 ; Krebs v. O'Grady, 23 Ala. Pollak, 85 Ala. 439. 727, 58 Am. D. 312; James v. Stewart, 9 ' Moore v. Stevenson, 27 Conn. 14. Ala, 855; Mead v, Hughes, infra. * Adams v. Adams, 51 Conn. 135. VOL. I. — 36 561 § 1342 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. and capricious, but permanent and without expectation of again living togetlier, and the wife is unprovided for by the husband in such manner as is suited to their circumstances and condition in life, she may acquire property, control her person and acquisi- tions, and contract, sue, and be sued in relation to them as a feme sole during the continuance of such condition." ^ An abandon- ment of the State is not necessary ; but a mere deserted wife may acquire property, and control it and her person, and sue and be sued as sole.^ § 1339. Iowa. — At common law, and aside from a statute on the subject, it has been held that a wife long and absolutely deserted by her husband, and left wholly to her own means of support, is free to act as a feme sole. In the facts of the case wherein it was so laid down, the desertion had continued fifteen years, and the husband was residing in another State.^ § 1340. Louisiana. — The rights of married parties in this State are regulated chiefly after the rules of the civil law. In one case it was held that only where the husband is absent from the State can a judge authorize the wife to make contracts. Mere absence from the parish is not enough.* § 1-341. Maine. — Where the husband has long and completely separated from the wife, relinquishing absolutely his marital rights, she may act as sole. Mutual consent and provision made for her have some tendency to prove such relinquishment, but they are not conclusive. In the case wherein this was laid down, the court, passing upon the facts as well as the law, negatived the wife's liability to be sued, saying : " We are not satisfied the separation is so complete that he [the husband] is to be treated as having renounced his marital rights and relations." ^ § 1342. Massachusetts. — " Where," in the words of Shaw, C. J., " the husband was never within the Commonwealth, or has gone beyond its jurisdiction, has wholly renounced his marital rights and duties and deserted his wife, she may make and take con- tracts and sue and be sued in her own name as a feme sole. It is an application of an old rule of the common law, which took 1 Lore V. Moynehan, 16 111. 277, 282, * Wilkinson v. Stanbrough, 1 La. An. 63 Am. D. 306. 264. And see Wooters u. Feeny^ 12 La. 2 Prescott V. Fisher, 22 111. 390; Love An. 449 ; Joftrion o. Bordelou, 14 La. An. V. Moynehan, snpra, p. 280, 282. 618. 8 Smith V. Silence; 4 Iowa, 321, 66 Am. '' Ayer v. Warren, 47 Me. 217, 232. D. 137. 562 CHAP. XLII.] WIFE ACTING SOLE IN SEPAEATION. § 1344 away the disability of coverture when the husband was exiled or had abjured the realm.^ ... In this respect the residence of the husband in another State of these United States was equivalent to a residence in any foreign State ,^ — he being equally beyond the operation of the laws of the Commonwealth and the jurisdic- tion of its courts." A complete renunciation of marital rights must be meant, and it must be coupled with absence from the State.* Mere desertion, while the husband continues to reside within the State, will not suffice.* But there is a statute helpful to the wife when the husband is within the State.^ § 1343. Missouri. — An early case holds that & feme covert is not liable on her promissory note, though the husband has aban- doned the State, and has been for many years — in this instance, ten — absent in another State. " The cases cited from the Eng- lish books," said the learned judge, " are where the husbands abjured the realm, or were foreigners residing abroad. The prin- ciples settled in those cases do not apply. If by a removal from one State to another, or a separate residence in different States,^ the indissoluble connection by which the wife is placed under the power and protection of the husband could be cancelled, and the parties thereby relieved of their respective liabilities and disabili- ties, there would be little need of troubling the legislature or the courts on the subject of divorces." ' But in a later case, where there were articles of separation, and the husband was residing in another State, and this condition of things had continued twenty- four years, the court held that the woman could sue and be sued in her own name.^ If she has lived many years apart from her husband, then has made him a co-plaintiff in her suit, he not ob- jecting, " it does not lie in the mouth of the defendant to make that objection for him." ^ § 1344. Nevada. — An abandonment, to be within the doctrine we are considering, must be absolute, embracing a total renuncia- tion of the marital relation.^" 1 Beferring to Gregory v. Paul, 15 ^ Bigelow r. Bigelow, 120 Mass. 320. Mass. 31 ; Abbot u. Bayley, 6 Pick. 89. « See ante, § 1342 ; post, § 1348. 2 See post, § 1343, 1348. ' Chouteau v. Merry, 3 Misso. 254, 255, ^ Gregory v. Pierce, 4 Met. 478. See opinion by Wash, J. also C. V. CuUins, 1 Mass. 116; Ames v. * Rose v. Bates, 12 Misso. 30. Chew, 5 Met. 320. ' Overspeck v. Thiemann, 92 Mo. 475, * Shaw V. Thompson, 16 Pick. 198, 480, Ray, J. 200, 26 Am. D. 655. And see Kendall v. 1° Beckman v. Stanley, 8 Nev. 257. Jennison, 119 Mass. 251. 563 § 1349 NON-LEGAL SEPARATIONS AND BREACHES. [bOOK V. § 1345. New Hampshire. — The husband's residence in another State, in a case where the desertion is not complete, does not by the common law capacitate the wife to act as sole. But " by force of the statute of Dec. 24, 184D, she became," said the judge in one case, " under the circumstances of desertion adverted to, capable of acquiring property." Therefore the plaintiff was permitted to recover against her for the items in his bill contracted after that date, not before.^ § 1346. New York. — If a husband utterly abandons his wife and family, renouncing as far as he can his relations to them, and removes to another State, he is to be regarded as abjuring the realm, and his wife may sue and be sued in her own name.^ § 1347. North Carolina. — There was in North Carolina a cast quite like the ancient abjuration of the realm. During the Revo- lutionary War a married man who had the option to take the oath of allegiance or leave the State never to return, chose the latter. His wife, thus left, married again though he was not dead, and otherwise acted as sole. The court deemed that " except as to the objection to the marriage," the banished husband " is to be considered as to all purposes to be actually dead, and she as to all purposes as a feme sole. She may sue and be sued, acquire, and transfer property. If she may do so by will, as stated in 2 Vern. 104, there is no reason why she may not also do so by deed." ^ § 1348. Ohio. — Where a separation de facto has been caused by the husband's brutality, and alimony in specific property has been given the wife without a divorce, if now she is living and maintaining herself as single, she may by the opinion of the ma- jority of the court sue as sole respecting such property.* And a married woman who, after being deserted in a foreign country, came to Ohio without her husband, and supported herself, he never being within the State, was adjudged competent to sue and be sued.® The same result may follow an abandonment in Ohio, if the husband goes to parts unknown or to a distant State.^ § 1349. Pennsylvania. — One case holds that a wife left to earn her own living may recover for services to a deceased person, 1 Brackett v. Drew, 20 N. H. 441, 442, < Benadum ». Pratt, 1 Ohio St. 403. opinion by Gilchrist, J. 6 Wagg v. Gibbons, 5 Ohio St. 580. 2 Osborn v. Nelson, 59 Barb. 375. 6 Rosenthal v. Mayhugh, 33 Ohio St. » Troughton v. Hill, 2 Hayw. 406. 155. 564 CHAP. SLII.] WIFE ACTING SOLE IN SEPARATION. § 1352 from T^hoin she had before received wages, at least in a court of equity .1 By another, if a husband deserts his wife, — the de- sertion, in fact, was immediately after the marriage, and he mar- ried another woman in Canada, — her subsequent acquisitions are her separate property, and she may dispose of them by will or otherwise.^ But here we come to the question of the separate estate, — not for the present volumes.^ The Act of 1855, con- ferring on a deserted wife the rights of a feme sole trader, is constitutional.* § 1350. South Carolina. — Aside from the doctrine of married women acting as feme sole traders,* " there is," said Nott, J., "no case where the husband and wife are living in the same State, the wife having no separate estate secured to her by deed, that she has been considered as able to contract, and to sue and be sued, as a feme sole." ^ But if he leaves the State, not in- tending to return, she may do this, as though unmarried. " Other- wise," said Waties, J., " she would have no means of .gaining a support." ' § 1351. Tennessee. — The question for this State was, in 1825, regulated by a statute. ^ § 1352. Vermont. — No absence from this State, by a husband who intends to return, will subject the wife to be sued as a feme sole. The learned Chief-Justice observed that if he were civilly dead, or an alien having never resided in the State, it would be otherwise. But in the present case, " suppose the husband should return while the action was pending, could the plaintiff proceed with his action and imprison the wife ? ... It will hardly be contended that property acquired by the wife in his absence would be beyond his control." ^ A note given by the deserted wife for necessaries is void, and her promise to pay it, made 1 Spier's Appeal, 26 Pa. 233. 6 2 Bishop Mar. Women, § 528. 2 Starrett v. Wynn, 17 S. & R. 130, 1 s Brown v. Killingsworth, 4 McCord, Am. D. 654. 429, 431. 1 ^ See Jacobs v. Featherstone, 6 Watts ^ Bean v. Morgan, 4 McCord, 148. & S. 346; West v. West, 10 S. & R. 445 See also Robards v. Hutson, 3 McCord, Rees u. Waters, 9 Watts, 90; Rorer v. 475; Pressley h. McDonald, 1 Rich. 27; O'Brien, 10 Pa. 212 ; Tyson's Appeal, 10 Hall v. Faust, 9 Rich. Eq. 294 ; Boyce v. Pa. 220; Imhoff v. Brown, 30 Pa. 504; Owens, 1 HiU, S. C. 8. Terry's Appeal, 55 Pa. 344. 8 Cooper v. Maddox, 2 Sneed, 135. * Moninger «. Ritner, 104 Pa. 298. « Robinson v. Reynolds, 1 Aikens, 1 74, And see Hentz v. Clawson, 12 Philad. 179, 15 Am. D. 673, opinion by Skinner, 432. C. J. 565 § 1354 NON-LEGAL SEPARATIONS AND BBEACHES. [bOOK V. after he is divorced from her, is invalid as being without con- sideration.i § 1353. United States. — There is a decision by the Supreme Court of the United States, in which considerable latitude is allowed the wife to act as sole when deserted by her husband ; but it does not greatly illumine the subject.^ § 1354. The Doctrine of this Chapter restated. The disabilities of coverture are in general the same when the parties are in separation as when cohabiting. If the husband is civilly dead, a condition little or not at all known to the American law, the wife is free.d in like manner as by his natural death. It is also or to some extent the same when a married woman goes into a foreign State or country, and lives there as sple, her hus- band not accompanying her, if she is permanently separated from him. And there are other circumstances, coming short of this case, wherein his abandonment of her and the family works the like result, but tlie courts are not agreed as to what facts are with- in this proposition. 1 Hayward i-. Barker, 52 Vt. 429, 36 ^ jjhea v. Rhenner, 1 Pet. 105. And Am. R. 762. see Moores v. Carter, Hemp. 64. 566 CHAP. XLIII.] SEDUCTIONS OP HUSBAND OR WIPE. § 1357 CHAPTER XLIII. SEDUCTIONS OP THE HUSBAND OE WIFE. § 1355, 1356. Introduction. 1357-1359. Seduction of Husband. 1360-1364. Same of Wife otherwise than in Crim. Con. 1365-1375. Crim. Con. with Wife. 1376. Doctrine of Chapter restated. § 1355. Elsewhere. — Indictable seductions are explained by the author in his criminal-law works. The civil seductions, for which an action at law will lie, are treated of by him in " Non- Contract Law ; " ^ omitting so much thereof as constitutes the subject of the present chapter. So that this chapter is supple- mental to the one in the latter book. § 1856. How Chapter divided. — We shall consider, I. The Se- duction of the Husband ; II. The Seduction of the Wife otherwise than in Criminal Conversation ; III. Criminal Conversation with the Wife. I. The Seduction of the Husband. § 1357. Wife's Right. — By the law which our forefathers brought to this country from England, making it common law with us, the wife is entitled to the society and protecting care of her husband. The English practice enabled her to compel his society by a suit in the Ecclesiastical Court for the restitution of conjugal rights.^ Though we have not this court or this practice, it follows from principles stated in a preceding chapter ^ that the wife's right to her husband's companionship is a part of the common law which we derive from England, and that it can be enforced whenever and as far as we have a practice and tribunals adapted thereto. Hence and from other reasons,* — 1 Bishop Non-Con. Law, § 363-388. * See, for example, the expositions in 2 Ante, § 69. Lynch v. Knight, 9 H. L. Cas. 577, 8 Jur. 3 Ante, § 115-149. N. s. 724. 567 § 1360 NON-LEGAL SEPAEATIONS AND BREACHES. [BOOK V. § 1358. Enticing away Husband. — Within the principles which constitute the law of seduction,^ one who wrongfully entices away a husband, whereby the wife is deprived of his society, and espe- cially also of his protection and support, inflicts on her a wrong in its nature actionable. We have seen^ that by the common- law rules, which forbid the wife to sue for a tort except by joining the husband as co-plaintiff, she is practically without an available remedy. But under the modern statutes as they are shaped in many of our States, she can hold property at law, bring suits to secure it, and maintain actions of tort, in her own name and with no interference from the husband. So that where a stat- ute of this sort prevails, she has her action against the seducer of the husband, who has thus wrongfully deprived her of his society and care.^ § 1859. Limits of Doctrine. — We have too few cases on this question to enable an author to lay down on authority, and with nice exactness, the limits of the doctrine. But it has been deemed, and no doubt correctly, that the complainijig wife must show the defendant to have been the seducer or enticer of the husband, and that a woman whom he has led into an illicit relation with him is not amenable to this suit.* In a wife's suit against her father-in- law, it was held admissible in mitigation of damages to show that his son was married to her while intoxicated, and that he had no affection for her before or after the marriage.^ It has been deemed also that the enticement must have been malicious.^ II. The Seduction of the Wife otherwise than in Criminal Con- versation. § 1360. Doctrine defined. — The husband being entitled to the society and services of the wife,'^ it follows from the doctrine of seduction,^ and it is within the principles stated in the last sub- title, that he may recover his damages against any one who unlaw- 1 Bishop Non-Con. Law, § 364-366. 17 Abb. N. Cas. 221 ; Churchill v. Lewis, 2 Ante, § 1334. 17 Abb. N. Cas. 226. 3 Westlake v. Westlake, 34 Ohio St. * Churchill ... Lewis, 17 Abb. N. Cas. 621, 32 Am. R. 397 ; Jaynes v. Jaynes, 39 226. Hun, 40 ; Breiman v. Paasch, 7 Abb. N. ^ Bassett v. Bassett, 20 Bradw. 543. Cas. 249, 32 Am. R. 407, note ; Baker v. ^ Westlake v. Westlake, 34 Qhio St. Baker, 16 Abb. N. Cas. 293; Bassett v. 621, 32 Am. R. 397. Bassett, 20 Bradw. 543; Bennett v. Ben- '' Ante, § 1184. nett, 116 N. Y. 584; Warner v. Miller, ' Bishop Non-Con. Law, § 364-366. 568 CHAP. XLIII.] SEDUCTIONS OP HUSBAND OB WIFE. § 1364 fully' entices her away, though nothing transpires or is meant in the nature of criminal conversation.^ Even — § 1361. Alienate Affections. — One who, by improper means, alienates a wife's affections from her husband, though she neither leaves him nor yields her person to the seducer, injures the hus- band in that to which he is entitled, — brings unhappiness to the domestic hearth, renders her mere services less efficient and valu- able, and inflicts on him a damage in the nature of slander,^ — so that for the redress of this wrong an action is maintainable.* § 1362. Separation Justifiable. — A husband whose ill conduct has justified his wife in leaving him, has no right of action against another who assists her therein, or receives, or harbors her.* Even — § 1363. Motive. — Though in fact she has- not been ill-treated, yet if she represents herself to have been so, to a person who honestly believes her, and renders aid to her from motives of humanity, the husband cannot recover damages. This action will lie only when there is some form of evil in the motive or pur- pose, — -bad faith toward the husband.® § 1364. Wife's Parents. — " A father's house," says Kent, " is always open to his children ; and whether they be married or un- married, it is still to them a refuge from evil, and a consolation in distress. Natural affection establishes and consecrates this asy- lum. The father is under even a legal obligation to maintain his children and grandchildren, if he be competent, and they unable to maintain themselves ; and according to Lord Coke, it is ' nature's profession to assist, maintain, and console the child.' " '' And this parental function includes the giving of advice. So that, for ex- ample, where the parents of a young girl who had secretly mar- ried against their wishes, sent for her to come and get her clothes, and then they gave her true advice to quit her husband and re- ' Winsmore v. Greenback, Willes, 577, R- 385 ; Heermance v. James, 47 Barb. 583. 120, 32 How. Pr. 142, 52 Am. R. 388, " Higham v. Vanosdol, 101 Ind. 160; note. Hutcheson y. Peck, 5 Johns. 196; Scherpf ^ Berthon v. Cartwright, 2 Esp. 480; V. Szadeczky, 4 E. D. Smith, 110; Chan- Rabe v. Hanna, 5 Ohio, 530. cellor Walworth in P. w. Mercein, 8 Paige, ^ Barnes v. Allen, 1 Abb. Ap. Ill, 1 47, 54; Bennett v. Smith, 21 Barb. 439; Keyes, 390; Philp v. Squire, Peake, 82; Barnes u. AUen, 30 Barb. 663 ; Rabe v. Holtz v. Dick, 42 Ohio St. 23, 28, 51 Am. Hanna, 5 Ohio, 530. R. 791. And see, for illustrations, Bi§hop ' Bishop Non-Con. Law, § 222, 253, Non-Con. Law, § 303. 254. 7 Hutcheson v. Peck, 5 Johns. 196, 210. < Rinehart v. Bills, 82 Mo. 534, 52 Am. 569 § 1365 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. main at home, which she voluntarily did while having perfect free- dom to return to him, they were adjudged not liable to him in damages. " There can be," said Deaderick, J., " no law to restrain the parent from honestly and sincerely endeavoring to protect his daughter, by means of counsel and warning, from impending ruin or disgrace, or wreck of her happiness or usefulness for life. There is a marked distinction between the rights and privileges of a par- ent in such cases, and those of a mere intermeddling stranger. A father has no right to restrain his daughter from returning to her husband, if she desires to do so. On the other hand, he may lawfully give counsel and honest advice for her own good, and shelter her in his own house, if she chooses to remain with him."i " Still," in the language of another case, " where the motive is not protection of the wife, but hatred and ill-will of the husband, it is no answer to his action for such interference that the offenders were his wife's parents." ^ There is in the law of libel and slan- der a doctrine analogous to this, from which perhaps helpful illus- trations may be drawn.^ III. Criminal Conversation with the Wife. § 1365. Terms — Distinctions. — "Criminal Conversation," com- monly in our books abbreviated to Crim. Con., is adultery com- mitted by a third person with the wife, viewed as a civil wrong to the husband.* It is often treated of under tlie head of Seduction, as it is in this chapter. The reason and propriety of this come from the fact that ordinarily, while still not necessarily, seduc- tion is the means whereby the adulterous intercourse is brought about, and it is the aggravating circumstance in most of the cases. But in matter of law seduction is not essential, and one who commits a rape on the wife is liable to the husband's action for a criminal conversation.^ It is the same also where the wife requires no persuasion, or is herself the seducer.'' Facts like these simply aggravate or diminish the damages. Hence — 1 Payne u. "Williams, 4 Baxter, 583, note. Aud see Turner v. Estes, 3 585. 317. 2 Holtz V. Dick, 42 Ohio St. 23, 28, 51 * 3 Bl. Com. 139. Am. R. 791, opinion by Okey, J. And ^ Egbert v. Greenwalt, 44 Mich. 245, see Friend v. Thompson, Wright, 636; 38 Am. R. 260. Burnett v. Burkhead, 21 Ark. 77; Eabe ^ Ferguson w. Smethers, 70 Ind. 519, 36 V. Hanna, 5 Ohio, 530. Am. R. 186. 2 Bishop Non-Con. Law, § 304 and 570 CHAP. XLIII.] SEDUCTIONS OP HUSBAND OR WIFE, § 1370 § 1366. Doctrine defined. — The doctrine of this sub-title is, that one's sexual intercourse with another's wife is a civil wrong to the husband, except where some special circumstance renders it otherwise ; and it is more or less aggravated, bringing with it heavier or lighter damages, according as it is attended by seduc- tion or rape or other enormity on the one hand, or by the wife's unsolicited willingness or other mitigating fact on the other hand. Thus, — § 1367. Wife a Prostitute. — If the husband suffers his wife to live openly as a common prostitute, he can have no action against a man who has a criminal intercourse with her, for by implication he has consented to it ; ^ but her mere want of chastity, and liis living with her after he knows it, will not take away his action, yet it will diminish tlie damages.^ Even — § 1368. Antenuptial Incontinence — of the wife may be shown in mitigation of damages, yet not in bar of the action,^ — the lat- ter part of which proposition is believed to be always just, but the former part would not be just in a case wherein the wife at or before marriage had absolutely and completely reformed. In one case, the trial court charged the jury that if her bad conduct was confined exclusively to her intimacy with the defendant, and the plaintiff was induced to marry her by his recommendation that she was a good girl, and the plaintiff believed that she was pure and virtuous, then her bad conduct with him before mar- riage should not be considered in mitigation of the damages ; and the court of review deemed the proposition to be both sound in law and good in morals.* Of course, — § 1369. Wife consenting. — The consent of the wife does not take away the husband's action ; for it is the burden of his com- plaint that the defendant procured it.^ But if she was the seducer, it will mitigate the damages.^ § 1370. Connivance. — As already seen,'' a husband's consent to his wife's adultery avoids his suit against the adulterer. And 1 Cook y. Wood, 30 Ga. 891,76 Am. D. * Stumm v. Hummel, 39 Iowa, 478, 677 ; Sanborn v. Neilson, infra. 482, 483. ^ Sanborn v. Neilson, 4 N. H. 501; ^ Moore v. Hammons, 119 Ind. 510; Harrison v. Price, 22 Ind. 165; Harter v. Wales v. Miner, 89 Ind. 118. Crill, 33 Barb. 283 ; Sherwood u. Titman, 6 Ferguson o. Smethers, 70 Ind. 519, 55 Pa. 77. 36Am. R. 186. ' Conway v. Nicol, 34 Iowa, 533. And ' Ante, § 1367. see Foulks v. Archer, 2 Vroom, 58. 571 § 1373 NON-LEGAL SEPARATIONS AND BREACHES. [BOOK V. it is the same whether he has given liis particular consent to the specific act, or a general one to lead a licentious life.' And — § 1371. Husband's Bad Conduct. — Bad conduct of the hus- band in the matrimonial relation, not amounting to connivance in his wife's immorality, — such as unkind treatment of her ,2 asso- ciating with lewd women,^ and cruelty,* but not, it was consid- ered in one case, mere ill temper and occasional passion and quarrelling,^ — may be shown in mitigation of his damages, while still they will not defeat the suit.^ § 1372. Want of Affection — between the married parties, an- terior to the seduction charged, while no answer to the husband's action, would seem in reason to mitigate the damages ; since cougequently his loss has been less. This has been so held,^ and so has been the contrary. ^ § 1373. Separation. — In various cases the husband has been denied redress where he and his wife were dwelling apart under articles.^ If the articles by their terms permitted her to live in adultery, they would justly have this effect, as constituting con- nivance. If they did not, they would still greatly reduce the damages, but in reason they should not tiake away the right of action. And such is the latest opinion from the English courts; Butt, J., observing to the jury, " It must be obvious to any one that if a husband and wife have consented to live separately, and have in fact lived separately for a number of years, the injury to the husband would be compensated by the smallest amount of damages. But each case varies with the different circumstances of life, and I have no hesitation in telling you that if a man makes the' acquaintance of another man's wife, engages her affections, and is the cause of her separation from her husband, and then after such separation commits adultery with her, the husband is 1 Bunnell t'. Greathead, 49 Barb. 106; ^ In Patterson v. McGregor, 28 U. C. Eea V. Tucker, 51 111. 110, 99 Am. D. Q. B. 280, the majority of the court deemed 539 ; Worsley v. Bisset, cited 2 T. R. this sort of conduct carried to a greater 166, 168; Winter v. Henn, 4 Car. & P. extreme than is stated in the text, sufiB- 494. cieut to defeat the suit. 2 Bunnell v. Greathead, 49 Barb. 106. ' Dance v. McBride, 43 Iowa, 624. 3 Norton v. Warner, 9 Conn. 172 ; Shat- 8 Dallas v. Sellers, 1 7 Ind. 479, 79 Am. tuck V. Hammond, 46 Vt. 466, 14 Am. E. D. 489. 631. ' Weedon v. Timbrell, 5 T. R. 357; * Hadley v. Heywood, 121 Mass. 236 ; Fry v. Derstler, 2 Yeates, 278. And for Coleman v. White, 43 Ind. 429. the English cases generally, see note to 6 Van Vacter v. McKillip, 7 Blackf. Izard v. Izard, 14 P. D. 45, 46. 578 ; Bromley v. Wallace, 4 Esp. 237. 672 CHAP. XLIII.J SEDUCTIONS OF HUSBAND OR WIFE. § 1376 entitled to the same amount of damages as he would have been 'entitled to if no separation deed had been executed between them, and that even if no adultery had been committed before the separation." ^ § 1374. Condonation, — which is the husband's forgiveness of the wife's offence, while it will take away his right to a divorce, is no impediment to his action against her seducer ; it is a pardon of lier wrong, not his.^ § 1375. Damages. — It has already become plain to the reader that the damages in these cases are specially subject to be varied by the particular facts. Consequently the jury has a wide dis- cretion concerning them, and commonly the court will not grant a new trial on the ground that they are excessive.^ Viewed merely as compensatory, they are in some circumstances properly very high.* Beyond which, vindictive damages, including compensa- tion for mental anguish, are permissible.^ § 1376. The Doctrine of this Chapter restated. The law gives such protection as its established processes and general principles permit to each of the married parties, against any wrongful leading of the other by a third person into a breach of matrimonial duty. To entice away a husband from his wife is an injury to her for which, in States wherein the statutes authorize her to sue at law in her own name, she may have redress in the common-law courts. Wrongfully to alienate a wife's affections from her husband, or to allure her away from him, is a harm to him for which he may maintain a suit at law. And it is a like damage to him to commit adultery with the wife, except by his consent or connivance. The amount of compensation recoverable for these several breaches of duty varies greatly with the particu- lar case. 1 Izard V. Izard, supra, p. 47. ' Torre v. Summers, 2 Nott & McC. - Verholf u. Van Houwenlengen, 21 267, 10 Am. D. 597. Iowa, 429; Stumm v. Hummel, 39 Iowa, * Wales v. Miner, 89 Ind. 118. 478; Clouser v. Clapper, 59 Ind. 548; 6 Johnson v. Allen, 100 N. C. 131; Macdonald v. Macdonald, 12 Scotch Sess. Johnston v. Disbrow, 47 Mich. 59; Yundt Caa. 4th ser. 1327; Pomero v. Pomero, 10 v. Hartrunft, 41 111. 9. But see Keyse v. P. D. 174. Keyse, II P. D. 100. 573 § 1379 SPECIAL INTERVENTIONS OF LAW. [BOOK VI BOOK VI. THE INTERVENTIOlSrS OE LAW BETWEEN HUSBAND AND WIFE OTHER THAN BY JUDICIAL DIVOECE. CHAPTER XLIV. MISCELLANEOUS AND IN GENERAL. § 1377. Common Law — Statutes. — Except as pointed out in the next two chapters, and except by judicial divorce, our law has only^statutoi-y remedies for wrongs committed by the parties against each other in marriage. Thus, — § 1378. The English Divorce Act — and its amendments have some provisions of the sort now contemplated, not requiring ex- tended explanations in a work for American practice. They have been by Parliament enlarged from time to time, resulting in a power in the magistrates to interpose summarily between the par- ties, with orders amounting substantially to judicial separations.^ § 1379. Abandonment a Crime. — In some of Our States it is made a crime for a husband, having the means to maintain his wife, or wife and children, to abandon them.^ Where the aban- donment has taken place in one State, then the wife removes to another, this proceeding cannot be maintained in the latter ; be- cause, like any other crime, it is punishable only when it was 1 Ante, § 153, note; Browne Div. 4th 112; Gillet v. Gillet, 14 P. D. 158; Powell ed. 208; Nicholson v. Drury Buildings u. Powell, 14 P. D. 177; Culley u. Char- Estate Co. 7 Ch. D. 48, 23 Eng. Rep. 397; man, 7 Q. B. T). 89; Dinning v. South liamsden c. Brearley, Law Rep. 10 Q. B. Shields Union, 13 Q. B. D. 25 ; Haddou v. 147; In re Coward, Law Rep. 20 Eq. 179; Haddon, 18 Q. B. D. 778 ; Pape v. Pape, Ewart V. Chubb, Law Rep. 20 Eq. 454 ; 20 Q. B. D. 76. In Goods of Stephenson, Law Rep. 1 P. & ^ F. v. Pettit, 74 l. 430. 194 ; Ex parte Knowles, 5 Cal. 300. * And see Smith Stat. & Const. Law, » Ante, § 1424, 1425. § 347, 351 ; Young v. State Bank, 4 Ind. 600 CHAP. XLVI.] LEGISLATIVE DIVORCES. § 1449 unwritten rule with us it may be either the one or the other. In governmental propriety, for the average case, we may deem with Kent that " the question of divorce involves investigations which are properly of a judicial nature, and the jurisdiction over divorces ought to be confined exclusively to the judicial tribunals, under tlie limitations to be prescribed by law, " ^ — an opinion the adherents to which are multiplying.^ But this learned person nowhere intimates that therefore legislative divorces are invalid. § 1447. Divorce Statute special. — The fact that the divorce statute is special, instead of general, cannot in the absence of a restraining clause in the Constitution alter the question ; for the number of persons upon whom any law is to operate is imma- terial.^ But, — § 1448. Tribunal moved. — When a competent court has ac- cepted the jurisdiction and commenced acting on a controversy, the particular matter becomes thereon exclusively judicial ; and though the legislature had an equal authority over it before, it has not now.* This is but a branch of the doctrine that between tribunals of concurrent jurisdiction, the one which first takes cog- nizance of a controversy can continue it to the end.^ § 1449. Judicial uutil Statute. — Another distinction is worthy of notice, while yet its correctness is open to debate.^ It is that, the source of all power being in the legislature as the representa- tive of the people, every function is legislative until made judicial by statute. But when legislation has vested a jurisdiction in the courts, then all questions committed to them become judicial, and they cannot be concurrently acted upon by the legislature. The judges of Maine, in announcing and applying this doctrine, deemed that until the legislature enacts divorce laws, it can itself exercise the special power, — not afterward, for thus there would be an appeal from the highest judicial tribunal. Yet for causes not within the general laws, the legislature may grant divorce.'^ Sub- 1 2 Kent Com. 106. 175; Berrett v. Oliver, 7 Gill & J. 191 ; 2 Ante, § 1428, 1429. Burch v. Newbury, 6 Seld. 374, 393 ; Mc- " Edwards v. Pope, 3 Scam. 465, 469; Cabe v. Emerson, 18 Pa. Ill ; Griffin Jones V. Jones, 12 Pa. 350, 7 Legal all, when it is founded upon the mere will Intelligencer, 19, 1 TJ. S. Mo. Law Mag. or discretion of the legislature, without 300; Gaines v. Gaines, 9 B. Monr. 295, reference to the breach of any existing 48 Am. D. 425 ; Townsend v. Griffin, 4 contract or law." Gaines v. Gaines, 9 B. Barring. Del. 440; Crane v. Meginnis, 1 Monr. 295, 307, 48 Am. D. 425. Gill & J. 463, 19 Am. D. 237. ^ Ante, § 1425. 604 CHAP. XLVI.] LEGISLATIVE DIVORCES. § 1460 a cause for divorce. Now, the distinction laid down in Maine and lowa^ points to the result that a legislative divorce is good only if the petitioner could not have obtained a judicial one ; so that if there was an offence unknown alike to him and the legislature, it would overturn the divorce, simply because the wrong was greater than had been supposed. But the difference is palpable ; a statute is an act of sovereign will, — flowing from such will, not from an exterior cause. And in other respects a legislative divorce is essentially a different thing from a judicial ; although it bears the same name and to a certain extent answers the same end.^ Still, — § 1458. Special Terms of Constitution. — Under a constitution providing that " the legislature shall not have power to enact laws annulling the contract of marriage in any case where, by law, the courts of this Commonwealth are or may hereafter be empowered to decree a divorce," the court inquiring into the validity of a legis- lative divorce is compelled to assume the existence of a " cause " for it, and to hear evidence of what the cause was.^ § 1459. Fraud. — This view of a " cause " harmonizes with what is probably the better doctrine, though the contrary is not without apparent authority,* that a legislative divorce will not be adjudged void for a fraud practised on the legislative body.'^ Further as to which, — § 1460. Suit Pending. — When, in one case, a wife had brought her bill for alimony, and the husband had answered by cross-bill praying a divorce, he procured from the legislature an act dis- solving the marriage. Thereupon by supplemental answer he set up this legislative divorce in bar of her claim, and died. Here, not inquiring how the case was as to the legislature, there had been a fraud practised on her ; and the court held that she was not barred of dower and distribution as widow. " The question," said Marshall, C. J., " is not simply whether the legislature may, under any circumstances, constitutionally enact that A be divorced from B ; but whether, when it is manifest that a pai'ty after having sought a divorce in a judicial tribunal, and while his suit is there ' Ante, § 1449. * Williamson v. Williamson, 3 Sm. & 2 Koberts K. Roberts, 54 Pa. 265. M. 715, 41 Am. D. 636; Charles River ^ Jones V. Jones, 12 Pa. 350. The Bridge v. Warren Bridge, 7 Pick. 344 ; legislature, in dissolving a marriage, is Suubury, &c. Rid. c. Cooper, 33 Pa. 278. presumed to have acted on a sufficient ' Bishop Written Laws, § 38; oues cause. Cronise v. Cronise, 54 Pa. 255; i;. Jones, 12 Pa. 350. Roberts v. Roberts, 54 Pa. 265. 605 § 1462 SPECIAL INTERVENTIONS OP LAW. [bOOK VI. pending, abandons that forum and resorts to the legislative power for the sole purpose of affecting and defeating the legal and equi- table rights of his wife in his property, the divorce " can be upheld. Assuming the legislative power to grant special divorce acts for the public good,i still " the divorce in this case is inoperative as respects the rights of property involved, and cannot deprive the wife of her interest in the estate of her husband as it would have existed had there been no divorce."^ As to this case, — § 1461. Concurrent Jurisdiction. — After the husband had gone to the court asking a divorce, and while the cause was there pend- ing, the legislature was properly to be deemed without authority, under a principle already explained ; ^ namely, the tribunal which first takes a concurrent jurisdiction is entitled to exercise it to its close.* Yet where under a constitution the courts may grant divorces for some matrimonial offences and tlie legislature for others,^ so that the question of concurrent jurisdiction does not arise, a divorce procured from the latter while a divorce suit is pending in the former is good. And it will not be presumed that the legislature acted from a cause over which the courts had jurisdiction.^ § 1462. Interstate Validity — Legislature referring Case to Court. — The Maine legislature being asked for a divorce on facts not within the jurisdiction of the courts, as explained in a preceding section,^ referred tlie case by special statute to them,^ and they decreed thereupon the divorce prayed. But the Massachusetts tribunal ad- judged the authorizing statute to be void under the Constitution of Maine, as granting a special indulgence by way of exemption from the general law.^ By what authority a bench of judges in one State sits as a court of appeal from the tribunals of another, to pronounce void by the Constitution of the latter a statute held valid at home, or whether or not the authority exists, is an inquiry not within the scope of the present investigations.^'' As to the question itself, the power of the legislature to bestow by special "■ Eeferring to Maguire c. Maguire, 7 * Mason w. Piggott, 1 1 111. 85 ; 1 Bishop Dana, 181. Mar. Women, § 634. 2 Gaines v. Gaines, 9 B. Monr. 295, ' Ante, § 1458. 305, 308, 48 Am. D. 425. See also Jones « Koberts v. Roberts, 54 Pa. 265. V. Jones, 7 Legal Intelligencer, 19, 1 U. S. ' Ante, § 1449. Mo. Law Mag. 300, 12 Pa. 350; Richard- 8 Ante, § 1426. son V. Wilson, 8 Yerg. 67. s Siraonds v. Simonds, 103 Mass. 572, 3 Ante, § 1448. 4 Am. R. 576. 1" In this case of Simonds v. Simonds, 606 CHAP. XLVI.] LEGISLATIVE DIVORCES. §1464 act what the court gave, being settled, there is fair ground to infer that, therefore, it could by the like special act commit the author- ity to the courts ; this was no more a granting of a special indul- gence by way of exemption to the general law than the other would have been. In the cases referred to by the Massachusetts Court, the legislature did not, as in this one, possess within itself the jurisdiction to give the relief sought. There is, therefore, abundant room for a distinction between the two classes of cases.-* VI. Limitations of the Effect of these Divorces. §1463. status and Collaterals distinguished. — The doctrines of this sub-title depend on the distinction between the status of marriage, with what hangs thereon, and those collateral property rights which are independent of the status. It is a distinction running through the entire marriage law. Thus, — § 1464. Vested Rights — Alimony. — The elucidations of this chapter have disclosed that a legislative divorce is a statute, that a judicial one is a decree, that a statute cannot divest vested the Massachusetts Court argued, and cited Maine decisions as tending to prove, that the divorce would be held invalid in Maine. But it was a decree of the high- est judicial tribunal of Maine, not pos- sible to have been rendered unless it had deemed the authorizing act constitutional. The decree, indeed, necessarily involved a determination of the constitutional ques- tion in favor of validity. Whether there might have been an appeal on this ques- tion the case does not disclose ; but if there might, the query would remain, whether the appeal should be to the Maine Court or to the Massachusetts. The New Yorlc Court, in Hunt v. Hunt, 72 N. Y. 217, 231-233, in passing upon a Louisiana divorce, declined to inquire whether or not it was void in Louisiana, as violating the Louisiana Constitution. And the learned judge who delivered the opinion distinguished this case of Simonds V. Simonds from that. He said the Mas- sachusetts Court "satisfied itself by the decisions of the courts of Maine, which it cited (Lewis ./. Webb, 3 Greenl. 326 ; Durham v. Lewiston, 4 Greenl. 140 ; Adams u. Palmer, 51 Me. 480), that the divorce would not be considered valid in that State, and therefore felt justified in holding it invalid in Massachusetts." In the New York case, no such distinct evi- dence of the holdings of the Louisiana tribunals appeared. This may create a difference, but I am not ashamed to ac- knowledge I cannot see it. The Court of Maine did not take the same view of the effect of the Maine decisions cited which the Massachusetts Court did ; else it would not have granted the divorce. It is matter of opinion which tribunal was right. And it is matter of opinion whether or not the Maine tribunal would reverse its judg- ment on further argument before more judges. So that tlie question still re- mains, wliether Maine or Massachusetts judicial opinion is to be the guide. Some would deem the constitutional question plainer in this than in the Louisiana case; others, less plain. And still the inquiry returns, whether the courts of our several States are to sit as tribunals of appeal from one another's courts and legisla- tures, upon the interpretation and effect, each of a constitution not within its juris- diction. 1 And see Berthelemy v. Johnson, 3 B. Monr. 90, 38 Am. D. 179. 607 § 1467 SPECIAL INTERVENTIONS OF LAW. [BOOK VI. rights, but the decree may. Therefore the divorce act cannot take vested property from the husband and bestow it on the wife. It cannot give the wife alimony, or anything in the nature of it, out of the husband's estate.^ But, — § 1465. Eights depending on Marriage. — As this divorce, equally with a judicial one, snaps the vinculum of the marriage, whatever hangs upon it falls. Thus, — § 1466. Dower and Distributive Share — Curtesy — Wife's Choses in Action. — If the man dies, the woman will not be his widow, entitled to dower and a portion of his personal property .^ He will not, on her death, be authorized to hold her lands as tenant by the curtesy ; but, on the contrary, his interest and that of his grantees and representatives, in them, and in her choses in action, ceases.^ This is not a divesting of vested rights. "As well might it be urged that a law annexing the punishment of death to a crime, should it happen to be committed by a tenant for life, was retrospective and divested vested interests, because it deprived purchasers or creditors under such tenants for life of their estates." * § 1467. Effect on Voidable Marriage. — Can the legislature SO dissolve a voidable marriage that, the same as after a judicial decree of nullity, it will be treated in law as having never existed ? On principle, we have seen ^ that the reason why the marriage is voidable (when it is so) instead of void, is because the coa-ts have no jurisdiction to inquire into the impediment in a collateral proceeding ; but if they had, it would be void. Why, therefore, may not the legislature, which can always enlarge the remedy at pleasure,® authorize the judicial tribunals to take cognizance of thi^ matter as well in a collateral as in a direct inquiry ? And thus the legislative act would be made to have something like the effect of a sentence of nullity ; that is, it would practically trans- form the marriage from a voidable to a void one; yet it might 1 Crane u. Meginnis, 1 Gill & J. 463, ' Starr v. Peaae, 8 Conn. 541 ; Towns- 19 Am. D. 237; Holmes v. Holmes, 4 end u. Griffin, 4 Harring. Del. 440. Barb. 295, 301; Townsend v. Griffin, 4 * Daggett, J. in Starrs. Pease, supra. Harring. Del. 440 ; S. v. Fry, 4 Misso. ^ Ante, § 260-266. 120,193; Jackson u. Sublett, 10 B. Monr. " S. v. Sullivan, 14 Rich. 281; Balti- 467. See, however, Berthelemy v. Joho- more and Susquehanna Rid. v. Nesbit, 10 son, 3 B. Monr. 90, 38 Am. D. 179 ; West How. U. S. 395 ; Custer v. C. 25 Pa. 375; V. West, 2 Mass. 233. Commercial Bank v. S. 4 Sm. & M. 439 ; 2 Levins ti. Sleator, 2 Greene, Iowa, Williamson v. Williamson, 3 Sm. & M. 604. 715, 41 Am. D. 636. 608 CHAP. XLVI.] LEGISLATIVE DIVORCES. § 1^71 not, as to the past, estop inquiry, like the decree of a court. The question has not received judicial elucidation. § 1468. Bed and Board. — Though a legislative divorce from bed and board ^ cannot be supplemented by a legislative decree for alimony,^ it may authorize the /erne to act as sole ; so that, for example, a release of lands by her alone will be good.^ § 1469. Independent Alimony. — We have judicial intimations that the independent alimony explained in our last chapter may be decreed to the woman after a legislative divorce.* But as she has ceased to be a wife, and the right to this alimony depends on her being such, it is difficult to find a ground of principle for this doctrine. § 1470. Parties Estopped. — The court in one case, not being quite clear whether or not the legislative divorce in question was valid, deemed that as the parties had obtained it and had lived as divorced twenty years, severally entering into new marriages, each was estopped from intermeddling with the affairs of the other. Therefore the divorced wife's couveyance of her separate lands without joining her former husband was good." § 1471. The Doctrine of this Chapter restated. By the English law, which our forefathers brought to this country, a divorce might proceed either from the legislature or from a court. So, therefore, it may with us, except where some constitutional provision interposes a direct or indirect prohibition. After a good deal of controversy, it has been definitively settled by the Supreme Court of the United States that there is nothing forbidding in the National Constitution. Our State constitutions differ; some of them prohibit these divorces in express terms, some do the same by implication, others are partly prohibitory and partly not, and the remainder leave the legislative power over them undiminished. This divorce, if from the bond of mat- rimony, simply dissolves the status of marriage and lets what- ever else hangs thereon fall. It cannot divest vested rights of property. 1 Guilford v. Oxford, 9 Conn. 321. 19 Am. D. 237 ; Richardson v. Wilson, 8 2 Ante, § 1464. Yerg. 67. ' Stilley i'. Grubb, 1 Del. Ch. 406. ^ Richeson v. Simmons, 47 Mo. 20. * Crane v. Meginuis, 1 Gill & J. 463, VOL. I. — 39. 609 § 1474 JUDICIAL DIV0BCE8. [BOOK VII. BOOK VII. JUDICIAL DIVOECES. CHAPTER XLVII. IN GENERAL OP THE AUTHORIZING STATUTES. § 1472. Introduction. 1473-1476. Miscellaneaus and Introductory Views. 1477-1486. Retrospective Interpretations. 1487-1491. Retrospective Effects. 1492. Doctrine of Chapter restated. § 1472. How Chapter divided. — We shall consider this subject as to, I. Miscellaneous and Introductory Views of it ; II. Retro- spective Interpretations of Divorce Statutes ; III. Retrospective Effects under our Constitutions. I. Miscellaneous and Introductory Views of the Subject. § 1473. Already. — The first nine chapters of the present vol- ume, to which reference is here made as a substitute for re- peating their expositions, constitute the principal matter to be regarded under this sub-title. It is particularly desirable to re- member that — § 1474. Jurisdictional. — The statutes authorizing divorce for adultery and cruelty, the two causes recognized by the unwritten law of our States, as imported by our forefathers from England, are simply jurisdictional ; that is, they give the power to a tri- bunal designated, but the manner, limits, and effect of the suit and sentence come, except as the statutes otherwise specify, from the unwritten law. On the other hand, — 610 CHAP. XLVII.] IN GENERAL OP THE STATUTES. § 1478 § 1475. Original Provisions. — The statutes which give divorce for other derelictions subsequent to the nuptials are original pro- visions. Yet as the written laws are by interpretation blended with the 'unwritten, rendering the whole as far as may be one harmonious system of jurisprudence,^ these original divorce stat- utes, while authorizing this remedy for causes before unknown, are to be carried into effect after the same manner as the jurisdic- tional ones, and as parts of the same body of law. For example, the several bars of connivance, recrimination, and condonation are just as effective against these original as the jurisdictional provi- sions. And the court is no more empowered to grant a divorce for a cause thus newly created, on the mere unproven confession of the defendant, than for adultery or cruelty. Again, — § 1476. In other Respects, — these statutes are to be severally interpreted as parts of a harmonious system, according to expla- nations given elsewhere.^ II. Retrospective Interpretations of Divorce Statutes. § 1477. As to Constitutional or not. — The written constitution and the statutes are always to be interpreted together, so that a meaning will not be given the latter which will violate the for- mer.^ Whether or not these divorce statutes may constitutionally be made retrospective we shall inquire in our next sub-title ; but it is within this sub-title to say that a court which deems it incom- petent for the legislature to make a divorce statute retrospective, will if possible construe such a statute as not being so. Now, assuming that there is no constitutional impediment, — § 1478. Doctrine defined. — The doctrine of this sub-title is, that since marriage is an institution of society, or a common in- terest, always controllable by law ; since, therefore, divorces are of public concern, to be decreed when and only when the general good accords therewith ; and since statutes are to be given the meaning which best carries out the legislative intent,* ■ — when- ever a statute, whether jurisdictional or an original provision,^ creates a jurisdiction or a cause for divorce, if in terms applicable equally to the future and the past, it will be applied alike to past ' Bishop Written Laws, § 4, 7, 86. « Bishop Written Laws, § 70, 75, 76, 2 Ante, § 165-167. 82, 93, 200, 231, 235. ' Bishop Written Laws, § 83 a, 85, 89. ^ Ante, § 1474, 1475. 611 § 1481 • JUDICIAL DIVOECES. [BOOK VII. and future derelictions. Such is the doctrine of reason, though the decisions are in conflict. To explain, — § 1479. Ill General of Retrospective Interpretation. — The main purpose of making laws being to provide rules for the future, and it being under our constitutions incompetent in some things to affect thereby the past, the greater number of the statutes on the various subjects of legislation are in terms or by interpretation applicable only to what occurs subsequently to their enactment.^ But there are circumstances wherein retrospective laws are just, proper, and common. And though statutes are not generally ap- plied retrospectively, they sometimes are, even where their words are in form to give no indication whether the legislature so in- tended or not.2 Now, — § 1480. Divorce Statutes — In Reason, Authority. — As just seen,^ divorce statutes concern the good order of society. If, contem- plating the interest involved as public, it is for the public order and profit that marriage be dissoluble after the transpiring of a particular delictum, it can make no difference what was the date of the delinquency, or whether before or after the statute was enacted. Hence, when the legislative intent does not directly appear in the statutory words, they should be applied equally to past and future transactions. But the authorities on the ques- tion are divided.* Let us look at — ■ § 1481. Illustrations of not Retrospective. — The provision "that divorces from the bands of matrimony shall be decreed in case either of the parties shall wilfully desert the other" for a period specified, was held to apply only where the entire desertion oc- curred after its enactment.^ So the words " from and after the passage of this act the following shall be the grounds or legal principles upon which divorces from the bond of matri- mony shall be granted," proceeding to make cruel treatment one of the grounds, were adjudged to furnish relief only for subse- 1 Bishop Written Laws, § 82, 84, 85. Sherburne u. Sherburne, 6 Greenl. 210 ; 2 lb.; Adams v. Chaplin, 1 Hill Ch. Given ia Marr, 27 Me. 212; Scott ti. Scott, 265 ; Hinton v. Hinton, Phillips, N. C. 6 Ohio, 534 ; Hunt v. Hunt, 9 Hun, 622. 410; Eeg. V. Vine, Law Rep. 10 Q. B. See also Head v. Ward, 1 J. J. Mar. 280; 195; Wright v. Hale, 6 H. & N. 227; Briggs v. Hubbard, 19 Vt. 86; Miller w. Kimbray v. Draper, Law Eep. 3 Q. B. C. 5 Watts & S. 488i; Fultz v. Fox, 9 B. 160; The Ironsides, Lushington, 458; Monr. 499 ; S. w. Deaton, 65 N. C. 496. Bay 0. Gage, 36 Barb. 447. ^ Stat, of Maine, 1829, c. 440; Sher- 8 Ante, § 1478. burne v. Sherburne, 6 Greenl. 210. * Jaxvis V. Jarvis, 3 Edw. Ch. 462; 612 CHAP. XLVII,] IN GENERAL OF THE STATUTES. § 1482 quent cruelty.^ At the same time, under a statute authorizing divorce for desertion during a given period, it was decided that if the full statutory term has elapsed since the statute was passed, it is no objection that the desertion in fact began before. Said Wright, C. J. : " When the cause called for by the statute is a continuing one, although it may have begun before the enactment of the statute, yet if it be continued, after the passage, the period required therein, this is sufficient and the case comes within the act. In such a case, it is the future and not the past act which becomes the offence." ^ The words " divorces from the bonds of matrimony shall be decreed in favor of the innocent party when the other shall be convicted of a felony and actually imprisoned for the same," were held not applicable where the conviction and imprisonment took place before their enactment.^ On the other hand, — § 1482. Illustrations of Retrospective. — Where, in Massachu- setts, it was first enacted in 1838 that " a divorce from the bond of matrimony may be decreed in favor of either party whom the other shall have wilfully and utterly deserted for the term of five years consecutively, and without the consent of the party deserted,"* the uniform practice was to grant it equally for prior as for subsequent desertion. And a statute of the same State by which, " when any woman shall hereafter be divorced from tlie bond of matrimony for the cause of adultery committed by the husband, . . . the court by whom such divorce may be decreed shall have power to assign to her for her own use all the personal estate which the husband hath received by reason of the mar- riage, or such part thereof as shall be just and reasonable," was held applicable as well where the adultery was before as after its passage.^ So, in Wisconsin, a provision authorizing divorce "whenever the husband and wife sha^H have voluntarily lived entirely separate for the space of five years next preceding" the bringing of the suit, was applied wliere the five years had partly elapsed before its enactment. " This law," observed Cole, J., " establishes a new ground of divorce, and is based upon the prin- ciple that, where Imsband and wife have voluntarily lived entirely 1 Stat, of 1850; Buckholts v. Buck- 3 Greenlaw v. Greenlaw, 12 N. H. 200. tolts, 24 Ga. 238. See ante, § 134. * Mass. Stat. 1838, c. 126, § 1 ; Stevens ^ McCraney v. McCraney, 5 Iowa, 232, i). Stevens, 1 Met. 279. 255, 68 Am. I). 702. And see Giles c. 5 West u. West, 2 Mass. 223. Giles, 22 Minn. 348. 613 § 1484 JUDICIAL DIVORCES. [BOOK VII. separate for a period of five years, the interest of society and public morality, as well as the good of the parties tliemselves, will be best promoted by a dissolution of the marriage relation. There is nothing in the language of this statute which would seem to require that the five years' 'separation must have occui-red after the law took effect, and we must presume that it was intended to apply to present separations as well as future ones." ^ Now, — § 1483. Further of the Cases and Doctrine. — In such of these cases as by interpretation were limited to future transactions, there was in the forms of expression something more or less indicative of this restriction. Thus, when " either of the parties shall wilfully desert" " shall he convicted of felony," and the like, — these words point to future transactions.^ Not inquiring whether this interpretation of these words is inevitable, it has already been intimated that, in the absence of express terms, if for the public good the bond between parties living separate on account of the adultery, the cruelty, or the desertion of one of them ought to be dissolved and the innocent one or both be per- mitted to remarry, it is in reason wholly immaterial whether the delictum occurred before or after the legislative declaration of this truth ; for the same reasons apply to the one case as to the other.^ Nor is there a private wrong inflicted on the divorced party in the one case more than in the other. The delicturnvSiS, before the statute as truly as after, a breach of the conjugal duties which I the party guilty of it undertook at the mari-iage; and, justly viewed, the statute of divorce was merely a new rem- edy for the wrong. And the general rule, as derived ahke from other classes of cases* and from these,^ applies a statute pro- viding a new remedy or procedure, to past transactions the same as to future ones. Thus, — § 1484. Writ of Error. — It was provided that " whenever a final judgment in any criminal case shall be reversed by the Supreme Judicial Court upon a writ of error on account of error 1 Cole V. Cole, 27 Wis. 5.31, 534. * Bishop Stat. Crimes, § 84, 175-177; 2 And see Cook v. Sexton, 79 N. C. cases cited ante, § 1479. 305. s Wales v. Wales, 119 Mass, 89; Spar- 8 See, as illustrating this doctrine, An- hawk v. Sparhawk, 114 Mass. 355 ; Elliott drews v. Russell, 7 Blackf. 474 ; Miller v. v. Elliott, 38 Md. 357 ; Brower v. Bowers, Moore, 1 E. D. Smith, 739 ; Bronson v. 1 Abb. Ap. 214 ; Bigelow v. Bigelow, 108 Newberry, 2 Doug. Mich. 38 ; Goshen v. Mass. 38. Richmond, 4 Allen, 458, observed upon, ante, § 642, note. 614 CHAP. XLVII.] IN GENERAL OP THE STATUTES. § 1487 in the sentence, the court may render such judgment therein as should have been rendered, or may remand the case for that pur- pose to the court before which the conviction was had ; " and this was held applicable to existing judgments, nor was any clause of the Constitution or any natural right thereby violated.^ So, quite within the present reasoning, — § 1485. Age of Majority. — It being enacted "that every female under the age of twenty-one years, who shall marry in accordance with the laws of the State, shall from and after the time of such marriage be deemed to be of full age," — a matter not of the mar- riage status, but of the similar one represented by the word " ma- jority,"^ — "and shall have all the rights and privileges to which she would have been entitled had she been at the time of her marriage of full age," — the court applied the provision to female minors married before its passage.^ It was expressive, like a divorce statute, of the legislative judgment concerning parties standing in the situation indicated ; and, in reason, it was wholly immaterial whether the situation was created before the statute, or the statute before the situation. Again, — § 1486. New Jurisdiction over Old Cause. — A. fortiori, where the statute, instead of creating a new cause of divorce, gives a new jurisdiction over an old, — a question plainly of procedure alone, — beyond doubt, in the absence of contrary words, it will attach equally to a past transaction as to a future.^ This would be so even if divorce were a criminal proceeding.* III. Retrospective Effects under our Constitutions. § 1487. Compared vrith Legislative Divorces. — The present question involves some of the principles examined in the last chapter, not all. If legislative divorces violated the constitu- tional provisions against impairing the obligation of contracts,^ and against retrospective laws,^ the conclusion might follow that those now in contemplation do. But we have seen that the for- mer are not on either of these grounds invalid. Marriage, as viewed by the law of divorce, is not a contract, but a status in ' Mass. Stat. 1851, c. 87 ; Jacquins v. ' And see Gordon v. Gordon, 48 Pa. C. 9 Gush. 279. Yet see Watkins v. 226; Bigelow u. Bigelow, 108 Mass. 38. Haight, 18 Johns. 138. ^ Bishop Written Laws, § 175-180. 2 Chubb V. Johnson, 11 Tex. 469. ^ Ante, § 1430-1434. « Ante, § 1435-1442. 615 § 1490 JUDICIAL DIVORCES. [BOOK VII. which the contract creating it was merged and is lost.i Nor is marriage a vested right, not to be taken away by retrospective laws.2 And, a fortiori, a statute extending judicial divorces equally to past and to future violations of matrimonial duty is no inter- fering, by the legislature, in what belongs to the courts, — no exercise of judicial power .^ Therefore — § 1488. Constitutional or Not. - — In reason, and as respects the status of marriage in distinction from collateral things, a statute authorizing dissolution or separation for a past dereliction is not unconstitutional. Yet judicial opinions are divided on this ques- tion ; some hold that such a provision is void as retrospective.* And singularly in one case it was even said to be void as being an ex post facto law.^ Still the opinion which accepts this legis- lation as good rests on a reasonably firm basis of judicial author- ity.® For example, — § 1489. After living Separate. — A statute authorizing a disso- lution of the marriage whenever the " parties have, prior to the passage of this act, lived separate and apart for the period of four years within this State," not " by collusion and with the intent of procuring a divorce," was in Mississippi adjudged constitutional. " "We regard marriage," said Ellett, J., " as a civil status, a matter puhlici juris, created by public law, subject to the public will and not to that of the parties, who cannot dissolve it by mutual consent. It is more than a contract, because it establishes fun- damental domestic relations affecting the welfare of tlie com- munity, and because it is an institution of the State founded on reasons of public policy." ' § 1490. Modified View — (Adultery). — Under a statute ex- pressly authorizing divorce for adultery committed before its enactment, the court overruled the objection that it was a "retrospective law or law impairing the obligation of con- 1 Ante, § 9-19; Magee v. Young, 40 ' Carson v. Carson, 40 Missis. 349; Missis. 164, 90 Am. D. 322; Carson v. Jones v. Jones, 2 Tenn. 2, 5 Am. D. 645; Carson, 40 Missis. 349. Bertlielemy v. Johnson, 3 B. Monr. 90, 38 2 Ante, § 1435-1442. Am. D. 179 ; West v. West, 2 Mass. 223;, ' Ante, § 1443-1453. Smith v. Smith, 3 S. & K. 248; Bigelow * Clark V. Clark, 10 N. H. 380, 34 Am. v. Bigelow, 108 Mass. 38 ; Hunt v. Hunt, D. 165; Jarvis v. Jarvis, 3 Edw. Ch. 462; 9 Hun, 622, and compare with the final Given v. Marr, 27 Me. 212, 222; Slier- decision, 72 N.Y. 217, 28 Am. R. 129. hurne v. Sherburne, 6 Greenl. 210; Green- '' Carson v. Carson, 40 Missis. 349, 351. law V. Greenlaw, 12 N. H. 200. And see Bigelow v. Bigelow, 108 Mass. 38. 5 Dickinson v. Dickinson, 3 Murph. 327, 9 Am. D. 608. 616 CHAP. XLVII.] IN GENERAL OF THE STATUTES. § 1491 tracts," forbidden by the State Constitution. And among other things Overton, J., said : " There is certainly a distinction between an act which is malum in se, and one which is in its own nature indifferent. The legislature ought to be competent to modify the means of suppressing vice, or affording a more competent remedy, when requisite. Adultery, by the law of nature, is an offence. It was so before the passage of this act, and an evil in any possible view of the subject. The act, by affording relief for a matter which was criminal in itself, must be considered as so far remedial, and not ex post facto, a,s has been contended. . . . The Constitution says that ' no retrospective law, or law impair- ing the obligation of contracts, shall be made.' ' Retrospective ' here was inserted from abundant caution. It was intended to embrace rights, and not modes of redress. The last, from the nature of things, must be left open to legislative modification. It is not possible for me to suppose that any body of enlightened men ever intended to put it out of the power of the legislature to provide a remedy for many past transactions, which the immu- table principles of justice might require ; such an institution must suppose absolute foresight in man, which we all know is not one of his attributes. The wisest government that ever existed could not possibly foresee many evils which might require a remedy consistent with justice and the law of our nature. The legis- lature [constitution ?], as it appears to me, meant that the word 'retrospective' should be restrained in its acceptation to con- tracts, but not marriage contracts, they being incapable in their very nature of the application of such a principle." i Still, — §1491. Property Rights. — There is room for the suggestion that this divorce, like a legislative one, can operate only on those property rights which depend on the vinculum of the marriage, not authorizing such a collateral decree as for alimony.^ The question has not been much examined by the courts, yet it was held in Massachusetts, under an act to which we have already referred,^ that although the offence was committed previously to its passage, the court might still restore to the wife her personal property, which had vested in the husband. The premises whence ' Jones !'. Jones, 2 Tenn. 2, 4, 5, 5 Am. ^ Ante, § 1464. And see Curtis v. Ho- D. 645. And see the reasoning of the bart, 41 Me. 230, 232. court in Berthelemy v. Johnson, 3 B. ^ Ante, § 1482. Monr. 90, 38 Am. D. 179. 617 § 1492 JUDICIAL DIVORCES. [BOOK VII. was derived this doctrine consisted of an inaccurate statement of the law of husband and wife, by Sedgwick, J., thus : " By an in- termarriage, the husband and wife during the coverture have, as a joint fund for their mutual benefit, the property which previously belonged to each, and also that which afterwards comes by either; and they have an inchoate title, which is consummated on sur- vivorship, to certain proportions of this joint fund." Hence the deduction that "the legislature had an unquestionable right to prescribe what part of this joint fund shall go to each party in the event of a separation by divorce." ^ Should we accept this conclusion as just, still the reasoning which led thereto is not well calculated to persuade. The like result was arrived at in Kentucky, in a case not dissimilar in principle. It was held that a special legislative act, authorizing the court to pass upon the question of divorcing a particular couple for a specified cause, and while dissolving the marriage to make provision out of the husband's estate for the wife's support, was within the legislative power. And the court could invest her with a title to land which was his.2 § 1492. The Doctrine of this Chapter restated. The doctrine of this chapter is an outgrowth from the funda- mental one that marriage is an institution of society, and that the relation of husband and wife is a status of the parties, created and controlled by the law. Competent parties have always the law's approbation in marrying, but for divorce it requires a cause which itself has approved. If, therefore, a statute authorizes divorce for a dereliction specified, it should in reason be applied equally to past as to future transactions ; and so the courts will apply it, if nothing appears in its terms to forbid. For the same reason, it is applicable to past marriages the same as to future ones ; consequently, also, it is not an infringement of constitu- tional guaranties. In other words, the status of marriage, though it deeply affects the individual parties, is treated by the law as a public interest, to be moulded, modified, or destroyed by the public command. But this doctrine does not extend to those private rights of the married parties which exist separate and apart from the status and do not depend thereon. 1 West V. West, 2 Mass. 223, 227. ( 2 Berthelemy v. Johnson, 3 B. Monr. 90, 38 Am. D. 179. 618 CHAP. XLVni.] ADULTERY. § 14.96t CHAPTER XLVIII. ADULTERY. § 1493, 1494. Introduction. 1495-1500. Historically and in General. 1501-1516. Specifically of Matrimonial Offence. 1517-1522. Independently of Divorce. 1523. Doctrine of Chapter restated. § 1493. Elsewhere. — The procedure — that is, the pleading, practice, and evidence — in the divorce suit for adultery is treated of in the second volume. § 1494. How Chapter divided. — We shall here consider the law of the subject, I. Historically and in General ; II. Specifically of the Matrimonial Offence ; III. Independently of Divorce. I. Sistorically and in Greneral. § 1495. Opinions. — The Roman Catholic Church, holding mar- riage as one of its sacraments, deems its dissolution even for adul- tery to be not justifiable except where the Pope has consented.^ But by all opinions, adultery is the heaviest offence against the marriage. And the Greek Church and all Protestants permit the bond to be severed for this cause. 'It is the only cause which considerable numbers of Protestants accept as sufficient. § 1496. Before and after Reformation. — Formerly the Roman Catholic doctrine was the law of England on this subject. There- upon came the Reformation. Legally it was a mere release of the English Church from tlie Roman control. It did not abro- gate the prior matrimonial laws ; but a change in them was contemplated. " A commission was issued by Henry VIII., and renewed by his son, Edward YI., authorizing Archbishop Cran- mer and other leading ecclesiastics to inquire into this subject," 1 Ante, § 44. 619 § 1498 JUDICIAL DIVORCES. [BOOK VII. including a general revision of the ecclesiastical law, "and re- port to the Crown the result of their deliberations. These com- missioners embodied their opinions and suggestions in the form of a work which was subsequently published, under the title of Reformatio Legum Uoclesiasticarum. Had their proposed emenda- tions been adopted, the quality of indissolubility would no longer have attached to the matrimonial contract ; for they advised tliat in cases of adultery, malicious desertion, long absence, or cap- ital enmities, the marriage should be dissolved, with liberty to the injured party to marry again. They also recommended that the remedy of divorce a mensa et thoro should be entirely abrogated and done away with." A series of disasters, the principal one of which was the death of the king, not any want of confidence in the utility of the plan, prevented its being carried into effect.^ § 1497. Earlier. — It is believed that at an earlier period in England, all judicial divorces were of the one sort called sepa- rations from bed and board, or, shortly, divorce, and that in legal effect they were dissolutions of the marriage ; but that the Church forbade remarriage in one class of cases after another, till at length the present distinction between bed and board and the marriage bond became established, and the decree was made to follow it in form.^ Still, — § 1498. Change. — Whether this was so or not, the later rule which made the divorce for adultery from bed and board, in the modern meaning of the expression, was established in 1601 by Whitgift, Archbishop of Canterbury, assisted by other eminent divines and civilians.^ And as to the earlier law, it is difficult ' Macq. Pari. Pract. 467 ; 2 Burn Ec. of them the better. Thus it is said that Law, Phillim. ed. 503. For a fuller the reports of this case by Salkeld and by sketch of the provisions of this work, see Moore differ. I do not see that they do 4 Reeves Hist. Eng. Law, 543 et seq. in substance, though the form of words 2 Consult the note to the next section, is not the same, and Salkeld's is very 3 Eoliamb's Case, 3 Salk. 138, where brief. Salkeld states, not as any part of the decision is through mistake attrib- the resolution of the court, but of himself, uted to Archbishop Bancroft; s. o. Sir what was the ancient law, and refers to E. Moore, 6P3, Noy, 100. See 1 Law authorities to support what he sets down. Review [Eng.], 353, 361. I do not con- His statement, of himself, is that "a di- sider this historical question of sufficient vorce for adultery was anciently a vinculo legal importance to justify the consump- matrimonii ; and therefore, in the begm- tion of a great deal either of my time or ning of the reign of Queen Elizabeth, the the reader's. If historicnl disquisitions opinion of the Church of England was are all as illusory as some which have that after a divorce for adultery the par- been based on Foliamb's Case, the less ties might marry again." Of course, no anybody seeking real knowledge reads lawyer would understand him to be re- 620 CHAP. XLVIII.J ADULTERY. § 1498 for one who consults the ancient books to resist the conviction that there was a time when the effect of a divorce for adultery, porting in this passage what the court held, even if on the face of what he says it did not appear, as it does, that he was not ; for every lawyer knows that courts sit to settle present law, not past. But when we come to what is given as the resolution of the court, the two reports, including also that in Noy, are alike in substance and real meaning. The sub- stance is that a second marriage, after a divorce for adultery, was adjudged void. Such was the exact question in issue, and thus it was decided. On this question, as it not unfrequently happens on others de- pending on the testimony of old books and records, misapprehensions have sometimes arisen from a failure duly to comprehend oli forms of language, where time has wrought changes. In the early periods of our law, the terms distinguishing the partial and full divorces, if indeed there was at first anj' such distinction, were not as well settled as now, and this must be borne in mind when considering the dif- ferent reports of this case. I am not sure that there was anciently any form of lan- guage distinguishing the two kinds of divorce, or any difference in the decree of the court ; or that even, going far back in the history of this branch of the law, there was known any divorce which did not dissolve the marriage bond. It would seem that in the very early period a di- vorce was a divorce, and it sundered the bond ; that gradually the ecclesiastical powers forbade remarriage in this and that case ; that, next, the divorce after which remarriage was not forbidden was termed a divorce a vinculo; and, lastly, the form of decree was altered to conform to the altered law. I have not space prop- erly to discuss this question, and I do not express any opinion upon it. I shall simply quote a passage from Britton, and let the reader digest it for himself. Speak- ing of the action to recover dower he says : " If several women, all living at the same time, are united to one man, yet none of them but the first is in law bis wife ; the others being so in fact and wrongfully. Again, although she was his lawful wife, yet the tenant may say that she ought not to have dovrer by that rule of law which says that, the marriage subsisting, action of dower remains, but the marriage fail- ing, the action is extinct, and a divorce was pronounced between her and her hus- band, whereby the marriage ceased, and consequently her action to demand dower is extinguished. For a divorce [the reader observes that the divorce which dissolves the marriage is the thing here spoken of] is no other thing but a separation of bed between man and wife. And if this be verified or not denied, the wife shall not recover any dower." 2 Britton, Nich. ed. top p. 264. It is well known that the third volume of Salkeld was a posthumous publication, and, as printed, has its little inaccuracies. I think there is here some inaccuracy in his figures referring to the Year Books; for I do not find in them the place to which they point. His refer- ences to Bracton and to Glanville appear, on examination, to sustain what he says of the early English law, if I understand the passages correctly ; namely, that the effect of a divorce for adultery was to dis- solve the bond of the marriage. Thus, Glanville says : " If the wife should, in the lifetime of her husband, be sepa- rated from him on account of inconti- nence [words the meaning of which will appear when we compare them with the above extract from Britton], the woman shall not be heard upon a claim of dower. The same rule prevails if she be separated from him on account of relationship [a case in which the divorce, all admit, dis- solved the bond of marriage] ; she shall be debarred from claiming her dower " Beames Translation, p. 133. Other old books contain testimony of the like sort. A notable part of some of the modern histor- ical disquisitions consists of showing that Salkeld's statement of the old law does not appear in the other reports of Folia.mb's Case, then jumping to the conclusion that consequently the old law was not so, then commiserating writers who state the his- torical fact in the way it is set down in my text for feeing "misled" by Salkeld! That Sir F. Moore, for example, says nothing of William the Conqueror, on a particular page of his reports, does not prove this personage to be a myth. 621 § 1503 JUDICIAL DIVORCES. [BOOK VII. whatever its terms, was to dissolve the marriage.^ Though this opinion was not universal when Godolphin wrote,^ it is rendered more general by subsequent investigations. And — § 1499. Later. — For a long series of years until 1858,^ all judi- cial divorces in England for causes subsequent to the marriage were from bed and board, as the expression is understood in mod- ern law.* § 1500. Under our Unwritten Law. — According to principles considered in an earlier chapter,® adultery, having been ground of divorce from bed and board in England when this country was settled, is such by the common law of our States. Yet as the remedy in England could be pursued only in the ecclesiastical courts, which we have not, practically there can be no divorce with us until a statute has given the jurisdiction to some one of our tribunals. Thus we have reached the more practical part .of the chapter ; namely, — II. Specifically of the Matrimonial Offence. § 1501. statutes, — it is believed in all our States except South Carolina,^ have made adultery alone, or aggravated into a living in adultery, or combined with something else, but in most of them adultery alone, a cause for dissolving the marriage, in favor either of the husband or of the wife.'^ Now, — § 1502. Defined. — Adultery, in divorce law, is the voluntary sexual intercourse of a married person with one not the husband or wife.^ § 1503. Distinguished from Criminal — (Party — Partner in). — This definition keeps clear of some difficulties which attend a defining of the statutory crime of adultery.^ For the carnal act which leads to divorce is of necessity only a married person's. Equally it proves nothing of the question ' Mehle v. LapeyroUerie, 16 La. An. under discussion. 4; Tewksbury v. Tewksbury, 4 How. 1 And see Frampton v. Stephens, 21 Missis. 109; Holyoke v. Holyoke, 78 Me. Ch. D. 164. 404. 2 Godol. Abr. 500, 501. 8 "Adultery, by the law of Scotland, 2 Ante, § 153. consists in the carnal connection of one * 2 Burn Ec. Law, 503 ; 1 Woodd. of the married parties with any other Lect. 258 ; Macq. Pari. Pract. 470, note ; person than him or her to whom he or argument in Shaw v. Gould, Law Rep. she is married." 1 Eras. Dom. Eel. 3 H. L. 55, 63. 656. 6 Ante, § 115-149. » Bishop Stat. Crimes, § 654-657. « Ante, § 58, 59. 622 CHAP. XLVIII.] ADULTERT. § 1605 The particeps criminis may be either married or single.^ In the time of slavery it could be committed with a negro slave.^ § 1504. By Man or Woman, distinguished. — Some have deemed the wife's adultery a graver offence against the marriage than the husband's, reasonably requiring a distinction in the divorce law ; since tlie latter does not impose on the marriage a spurious issue, while the former may.^ But neither the English practice, pre- viously to the creation by statute of a judicial jurisdiction to dissolve the bond of matrimony,* nor the laws of the States of Continental Europe generally,^ make any difference ; except that in England the course of Parliament in granting divorce by spe- cial act was to interfere as a general rule in favor of the hus- band, and as a general rule to refuse the remedy when the wife was applicant.^ How the English law now is, as respects this dis- tinction, we have already seenJ The better view is believed to be that whether the husband's adultery is a graver or less grave offence against the marriage than the wife's, either ought to afford ground for dissolving the marriage bond. Still, — § 1505. Exceptional States. — There are two or three of our States wherein some distinction of this sort appears in the stat- utes. It is a form of legislation constantly varying, so the reader should not rely upon particulars here given. Thus, according to the General Statutes of Kentucky of 1881, while living in adul- tery by the husband is required to give the wife a divorce, either " adultery by the wife, or such lewd, lascivious behavior on her part as proves her to be unchaste, without actual proof of an act of adultery," will sustain a divorce in favor of the husband.^ And in Texas, by the Revised Statutes of 1879, the husband may have a dissolution " where his wife shall have been .taken in adul- tery ; " the wife, " where he shall have abandoned her and lived in adultery with another woman," ^ — a distinction perhaps allow- ing the wife a little less opportunity to violate the marriage than the husband, but not hard on either. ' Pickett V. Pickett, 27 Minn. 299. See * Shelf, supra. 1 Swift's System, 192; Reeve Dom. Rel. ^ Macq. Pari. Pract. 482. 207 ; C. V. Call, 21 Pick. 509, 32 Am, D. ^ Macq. Pari. Pract. 474-486 ; Hosack 284. Confl. Laws, 255 and note. ^ Mosser v. Mosaer, 29 Ala. 313. ' Ante, § 153 and note. ^ See Matchin v. Matchin, 6 Pa. 332, 8 Ky. Gen. Stats. 524. 47 Am. D. 466 ; 2 Kent Com. 106; Shelf. » Texas R. S. of 1879, art. 2861. Mar. & Div. 395. 623 § 1511 JUDICIAL DIVORCES. [BOOK VII. § 1506. Place. — The place where the adultery was committed is immaterial.^ Nor, in divorce law, is there any such doctrine as in the criminal, that the offence must have transpired in the county of the prosecution. § 1507. Criminal Intent. — The rule of the criminal law that to constitute adultery, the same as any other crime, there must be the criminal intent,^ prevails also in divorce law. Nothing could be more unjust than to permit a husband to cast his wife away because of any misfortune which, without her will, miglit befall her ; as, for example, where she is the victim of rape,^ and the like. So that — § 1508. Voluntary. — For adultery to justify divorce, it must be voluntary ; * as, — § 1509. Physical Compulsion — Mistake of Facts. — Adultery is not committed where the party is compelled by force or ravish- ment ; ^ or where the wife has carnal knowledge of a man not her husband through mistake, she believing him to be her husband ; or where, in the words of Ayliffe, " the wife marries another man through a belief that her former husband is dead," and during the continuance of this belief lives in matrimonial intercourse with him.^ § 1510. Cohabitation under Voidable Marriage. — If, in the case last mentioned, the statutes make the second marriage voidable in the full sense of the matrimonial law, in distinction from void, a cohabitation under it is not adultery. The injured party to the first marriage should procure a judicial dissolution of the second, then it will be adultery authorizing divorce to continue the cohab- itation.''' But — § 1511. Under Void Marriage. — If the second marriage is void, a voluntary cohabitation under it otherwise than through innocent mistake, as just explained, will be adultery authorizing a dissolu- tion of the first.^ Thus, — 1 Palmer v. Palmer, 1 Swab. & T. 551. take back his wife when she has cohatited 2 See Bishop Stat. Crimes, § 663-666. with another man, even under a false 5 P. V. Chapman, 62 Mich. 280, 4 Am. rumor, bona Jide believed, of his death. St. 857. But it is unquestionably sound. And see * Ante, § 1502. 1 Fras. Dom. Rel. 81, 657; ante, § 717; 6 Ante, § 1507. Bishop Stat. Crimes, § 663-665. 8 Ayl. Barer. 226. This doctrine is ' Valleau v. Vallean, 6 Paige, 207; also, in all its parts, the Scotch; though ante, § 259, 271, 277, 283. Erskine considers it hard to refuse the ^ Ante, § 258, 719, 722. husband his divorce and compel him to 624 CHAP. XLVIII.] ADULTERY. § 1515 § 1512. After Void Divorce. — A Common illustration of this occurs where one of the married parties obtains from the other a formal divorce, which for some reason is void, then contracts a second marriage. A cohabitation under the latter is, in the ab- sence of special circumstances, adultery, authorizing a dissolution of the first marriage on prayer of the other party.^ But as to this, there are distinctions clear in principle and not without support from authority. For example, — § 1513. Procurer of Void Divorce — (Connivance). — Where an Englishwoman procured in an American court a dissolution of her English marriage, then the divorced husband entered into and cohabited under a second marriage in America, the English Di- vorce Court refused to supplement the American divorce by its decree of dissolution, which was prayed on the groiind that the American divorce was void and therefore that the husband's co- habitation under his second marriage was adultery. " The peti- tioner," said Wightman, J., " is in this dilemma : either the American decree of divorce is valid, in wliich case the parties were at full liberty to marry again, and the respondent has not committed adultery by livin^'with the woman he married, or the American decree cannot be recognized in this court as valid. But as it was obtained at her instance, she has no right to com- plain of the consequences which might naturally be expected to follow it. It might be said that she connived at the adultery of her husband." ^ Again, — § 1514. Mistake of Fact. — If after a formal divorce, the de- fendant should suppose it valid when it was void because of some fact whereof he had no knowledge, then, since parties are not concluded to know facts, cohabitation under a second marriage contracted by him would not be adultery, unless continued after he became aware of the facts. The reason and authority for this have already been mentioned .^ § 1515. Insanity. — On familiar principles, if the carnal act transpires while the party to it is insane, the crime of adultery is 1 Simonds v Simoncis, 103 Mass. .572, 553. And see, for a like principle, where 4 Am. R. 576 ; Leith v. Leith, 39 N. H. the complainant was the defendant in the 20; McGiffert y. McGiffert, 31 Barb. 69, former divorce suit, Yorston u. Yorston, 5 13 Ind. 315, note. And see Oram d. Oram, Stew. Ch. 495. See also Bailey w. Bailey, 3 Eedf. 300; Robertson, v. Robertson, 9 45 Hnn, 278. Daly, 44. ' Ante, § 1507-1509. 2 Palmer v. Palmer, 1 Swab. & T. 551, VOL. I.— 40 625 § 1518 JUDICIAL DIVORCES. [BOOK VII. not committed. Consequently ^ there is no foundation for a di- vorce.2 The Pennsylvania Court, in one case, with considerable force of reasoning contended that since the danger of a spurious issue is a main cause of allowing the divorce for adultery, and since the husband must be otherwise aggrieved by the incontinence of even an insane wife, if such a wife yields to the adulterous act under circumstances to render its repetition probable, the mar- riage may be dissolved.^ But this doctrine has found no support elsewhere.* The husband would be justified in the more merciful course of restraining her. § 1516. Religious Opinions favoring. — It is no defence to adul- tery relied on for divorce that the defendant's religious opinions favor adultery, concubinage, or polygamy. Lord Stowell in a suit between Jews said : " It has been suggested that the Jewish religious regulations allow concubines. By the Mosaic law, as at present received, is there any such privilege ? If there be any such among the Jews themselves, it would be a great question how it could be attended to in a Christian court to which they have resorted ; and if it could be noticed, it ought to have been specially pleaded ; but I think it could not." ^ There is proba- bly no suit, of any sort, wherein one can rely on his peculiar religious beliefs in excuse for violating law.® III. Independently of Divorce. § 1517. Justifying Separation. — Within expositions already made, neither the husband nor the wife is required to continue cohabitation after the other has committed adultery, even where, as in South Carolina, it is no ground for either form of divorce.'^ § 1518. As barring Dower : — Elopement and Adultery. — The English statute of Westm. 2 (13 Edw. 1, stat. 1), c. 34, provides that " if a wife willingly leave 1 Ante, § 1507. » Matcliin v. Matchia, 6 Pa. 332, 47 2 Nichols V. Nichols, 31 Vt. 328, 73 Am. D. 466, 10 Law Reporter, 266. Am. D. 352; Wray d. Wray, 19 Ala. 522; * See Wray v. Wray, and Nichols v. Mims 0. Mims, 33 Ala. 98 ; Wray v. Wray, Nichols, supra. 33 Ala. 187; Broadstreet v. Broadstreet, '' D'Aguilar v. D'Aguilar, 1 Hag. Ec. 7 Mass. 474. Proofs. — But it is not suf- 773, 785, 3 Eng. Ec. 329, 336. ficient in evidence simply to show great ^ And see 1 Bishop Crim. Law, § 343, de])ravity and abandoned habits. HiU w. 344. Hill, 12 C. E. Green, 214. '' Ante, § 58, 59, 1216, 1221, 1228, 1230, 1231, 1234, 1248. 626 CHAP. XLVIII.] ADULTERY. § 1521 her husband and go away and continue with her advouterer [adul- terer], she shall be barred forever of action to demand her dower that she ought to have of her husband's lands, if she be convict thereupon ; except that her husband willingly and without coer- cion of the Church reconcile her and suffer her to dwell with him, in which case she shall be restored to her action." ^ § 1519. DiSering from Divorce Statutes — (Divorce Sentence). — The offence here described, it is seen, differs from the adultery for which divorces are granted. Therefore, as well as for other reasons, a divorce sentence for adultery has no other effect than for any other cause, in bar of dower ; though the woman may be otherwise barred on account of the same acts of adultery for which she is divorced. This distinction is important, and a failure to notice it has led to some confusion in the books.^ § 1520. With us. — This statute of Westminster is not received or not now deemed to be law in Massachusetts.^ Missouri,* Rhode Island,^ or Iowa.* But it is accepted or re-enacted in sOme other of our States, not in all in identical terms ; as, for ejsample. South Carolina,^ New Hampshire,^ Minnesota,^ Missouri,!" North Caro- lina," and West Virginia.^ As to its interpretation, — § 1521. Whether Desertion and Adultery combine. — If this statute were modern, the words " willingly leave" would seem to require a separation through the volition and fault of the wife — that is, desertion by her — to combine with her living in adultery. But it was held in England that a woman driven from her home by her husband's cruelty — a case clearly not" of desertion in her, but more nearly of desertion in him — forfeits her dower by adultery without reconciliation. " The best construction of the ' For expositions of this statute, see ^ Smith v. Woodworth, 4 Dil. 584. 1 Greenl. Cruise, 175, 176; 2 lust. 435, ' BeU i,. Nealy, 1 Bailey, 312, 19 Am. 436 ; Co. Lit. 32 a ; GodoL Abr. 508 ; D. 686. Govier v. Hancock, 6 T. R. 603. 8 Cogswell v. Tibbetts, 3 N. H. 41. 2 See Co. Lit. 32, note, 194; Park on ^ Giles v. Giles, 22 Minn. 348. Dower, 20, note; KoL Abr. 680, 681; M McAlister u. Norvenger, 54 Mo. 251. Shute V. Shute, Free. Ch. Ill ; 2 Bright " Walters v. Jordan, 13 Ire. 361, 57 Has. & Wife, 362 ; Schiffer . 664, the court say that profane and abusive language, though not of itself sufficient to sustain a libel for divorce, goes a great way to show the personal insecu- rity of the wife. " Such is the state of the law : it is only necessary to apply it to this case. The husband is jealous, he calls the wife a prostitute, and accuses her to others of adultery, — all, as it seems, without rea- son. Wigglesworth, among others, testi- fied that he h.id very little acquaintance with the wife ; that she was a reserved, modest woman. This jealousy brings on paroxysms of passion. All this occurs soon after the marriage. Surely jealousy is one of the strongest passions which can actuate man. No wife would he safe under the accusation of adultery, accom- panied by paroxysms of passion and men- aces of violence. Besides, in the present case there is evidence of violence actually used. "The divorce must be decreed with costs to the libellant. "The court remarked that the case could be carried no further by the re- spondent, having been passed upon by the whole court. Isaac Story, Jr., for the libellant ; W. Sohier for the respondent." It may now be deemed established in Massachusetts that actual violence is not necessary. Bailey v, Bailey, 97 Mass. 373. 645 § 1559 JUDICIAL DIVORCES. [bOOK VII. her personal safety ,i are insufScieut ; secondly, violence actually executed is not necessary. This latter proposition is as firmly established as any principle of the law can be, in England,'' Ire- land,^ Scotland,* and our States generally;^ while in Scotland and Continental Europe even less is required.^ The old common- law illustration of cruelty is an — § 1557. Attempt to poison. — It is cruelty " if," as said in the old books, " the husband does by poison or any other severe usage lay snares against his wife's life," ^ where actual violence is of course not presumed. And — § 1558. Menace addressed to Third Person. — Words of menace, to be adequate, need not be addressed to or in the presence of the wife ; the test is, whether they excite a reasonable apprehension of bodily harm. Lord Stowell said : " They carry with them some- thing of additional strength if they raise apprehension in others, for that shows the wife was not alarmed upon any unreasonable grounds." ^ § 1559. Pain inflicted on Mind. — As already seen,^ it was an old idea that mental suffering had nothing to do with bodily ills ; at least, that it did not so directly create them as to render the infliction of it cruelty. Even as late as when tlie author wrote the first edition of " Marriage and Divorce," tliis seemed to be the prevailing judicial opinion. And still the doctrine before stated, 1 Shell V. SheU, 2 Sueed, 716 ; Breinig Ch. 278 ; Harratt v. Harratt, 7 N. H. 196, V. Meltzler, 23 Pa. 156; Coursey v. Cour- 26 Am. D. 730; Butler v. Butler, 1 Par- sey, 60 HI. 186; Close v. Close, 9 C. E. sons, 329; Jeliueau v. Jeliueau, 2 Des. Green, 338. 45 ; Graecen v. Graeceu, 1 Green Ch. 459 ; 2 Mytton V. Mytton, 11 P. D. 141; Breinig jj. Meitzler, 23 Pa. 156; Hughes Harris ;;. Harris, Evans i>. Evans, and u. Hughes, 19 Ala. 307; Beebe v. Beebe, Oliver V. Oliver, cited ante, § 1548, 1555; 10 Iowa, 133; Caruthers v. Caruthers, 13 D'Aguilar v. D'Aguilar, 1 Hag. Ec. 773, 3 Iowa, 266 ; Little v. Little, 63 N. C. 22 ; Eng. Ec. 329 ; Westmeath w. "Westmeath, 2 Goodman v. Goodman, 26 Mich. 417; Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 270; Briggs r. Briggs, 20 Mich. 34 ; McClung Kirkman v. Kirkman, 1 Hag. Con. 409, 4 !•. McClung, 40 Mich. 493 ; Close v. Close, Eng. Ec. 438 ; Holden v. Holden, 1 Hag. 10 C. E. Green, 526 ; Black v. Black, 3 Con. 453, 4 Eng. Ec. 452, 454; Otway v. Stew. Ch. 215; Freeman v. Freeman, 31 Otway, 2 Phillim. 95, 1 Eng. Ec. 200 ; AyL Wis. 235 ; Kennedy v. Kennedy, 73 N. Y. Parer. 228; Stephens o. Totty, Cro. Eliz. 369; Sowers's Appeal, 89 Pa. 173. 908; Houliston v. Smyth, 2 Car. & P. 22, « Ante, § 1549. 29; Cousen v. Cousen, 4 Swab. & T. 164. ' Ayl. Parer. 228. And see Stephens 8 Carpenter v. Carpenter, Milward, v. Totty, Cro. Eliz. 908. 159. ^ D'Aguilar v. D'Aguilar, 1 Hag. Ec. 4 1 Eras. Dom. Eel. 454 ; Maclelland 773, 3 Eng. Ec. 329 ; HoUister v. HoUister, V. Fulton, cited Ferg. Consist. Law, 185. 6 Pa. 449, 553. 5 Rhame v. Rhame, 1 McCord Ch. 197, ^ Ante, § 1552. 16 Am. D. 597; Mason v. Mason, 1 Edw. 646 CHAP. XLIX.] CRUELTY. § 1561 that whatever endangers the physical safety is cruelty, was abso- lutely established. To illustrate, — § 1560. "Endanger Life" — (Mental Pain). — A statute having authorized divorce to a wife whose husband's " treatment of her is so cruel and barbarous and inhuman as actually to endanger her life," the Kentucky Court held conduct inadequate which in its consequences may shorten life by producing a settled melan- choly, or any other treatment, however cruel and inhuman, which operates primarily on the mind. The injury, intended or inflicted, must be directly to the body. It was added : " We cannot with sufficient certainty ascertain the operation of particular acts upon the mind, and then trace the influences of the mind upon the body^ in producing disease and death, to begin investigations of the kind without positive command by legislative authority." ^ On the other hand, — § 1561. Mental Pain Adequate. — In a much considered case, the Pennsylvania Court of Common Pleas employed the following language : " A husband may, by a course of humiliating insults and annoyances, practised in the various forms which ingenious malice could readily devise, eventually destroy the life or health of his wife, although such conduct may be uuaccompanied by violence, positive or threatened. . . . The courts intervene to dis- solve the marriage bond under this head for the conservation of the life or health of the wife, endangered by the treatment of the husband. The cruelty is judged from its effects ; not solely from the means by which those effects are produced. To hold absolutely that if a husband avoids positive or threatened per- sonal violence the wife has no legal protection against any means short of these, which he may resort to, and which may destroy her life or health, is to invite such a system of infliction by the indemnity given the wrong-doer. The more rational application of the doctrine of cruelty is to consider a course of marital unkind- ness with reference to the effect it must necessarily produce on the life or health of the wife ; and if it has been such as to affect or injure either, to regard it as true legal cruelty. This doctrine seems to have been in the view of Sir H. Jenner Fust in Dysart v. Dysart,^ where he deduces from what Sir William Scott ruled in Evans v. Evans,^ that ' if austerity of temper, petulance of man- 1 Thornberry v. Thornberry, 2 J. J. ' Evans v. Evans, 1 Hag. Con. 35, 4 Mar. 322. Eng. Ec. 310, 311. 2 Dysart v. Dysart, 11 Jur. 490, 492. 647 § 1564 JUDICIAL DIYORCES. [BOOK VIL ner, rudeness of language, a want of civil attention, occasional sallies of passion, do threaten bodily harm, they amount to legal cruelty.' ^ This idea expressed axiomatically would be no less than the assertion of this principle, that whatever form marital ill-treatment assumes, if a continuity of it involves the life or health of the wife it is legal cruelty." ^ § 1562. The Same View — has also support from some other not recent English authority. In one case, ill-nature, violent pas- sion, and frequent abuse of the wife, extending back to the time of marriage, were proved against a husband. He had never beaten her, but in several instances had so frightened her as to cause fits of sickness, and he had refused medical aid. Adultery was likewise established against him. Thereupon the court, deeming the facts to constitute cruelty as well, gave her a divorce on both grounds.^ Yet afterward Dr. Lushington strongly expressed the opinion that abuse which operates on the mind, and thus produces ill-health, is not legal cruelty.* Later, — § 1563. Settled. — Under more enlightened physiological views,^ the legal doctrine has become settled, it is believed everywhere, that conduct which produces pain of mind is legal cruelty ; so that whenever, operating either alone or in combination with some- thing else, it creates a danger to the physical health, a divorce for it or the combination will be justifiable.^ And — § 1564. Why? — It would be a reproach to the law to permit a husband to ruin the health of his wife or kill her in one way, but not in any other. If the body is the only thing to be re- garded, yet if we find various avenues to it, through any one 1 This observation, contained in the Ga. 319; Kelly v. Kelly, 18 Nev. 49, 51 Jurist report, does not occur in Robert- Am. R. 732 ; Williams u. Williams, 23 son, Tol. 1, p. 470, 473, et seq., — an omis- Fla. 324; Latham «. Latham, 30 Grat. sion perhaps of the latter reporter ; yet, 307 ; Cole v. Cole, 23 Iowa, 433 ; Gholston on the other hand, it may have been an v. Gholston, 31 Ga. 625 ; Briggs v, Briggs, erasure intentionally made by the learned 20 Mich. 34 ; McClung v. McClung, 40 judge in revising his opinion for the reg- Mich. 493. Illustrative Suit for Dam- ular reports. ages. — A Vermont case holds a count 2 Butler V. Butler, 1 Parsons, 329, 344, in a. suit for damages to be good which opinion by King, President. charges that the defendant, intending to ' Robinson v. Robinson, cited 2 Phil- frighten, terrify, and injure the plaintiff, lim. 96. threatened to imprison her; by means * Chesnutt v. Chesnutt, 1 Spinks, 196, whereof she was frightened, terrified, and 198 ; s. c. nom. C. v. C. 28 Eng. L. & Eq. made sick, and rendered unable to attend 603, 605. to her usual business and perform her 5 Ante, § 1552. usual work, and was thereby put to great ^ Cases cited in preceding and subse- expense and made to suffer loss. Grimes quent sections; also Glass v. Wynn, 76 v. Gates, 47 Vt. 594, 19 Am. R. 129. 648 CHAP. XLIX.] CRUELTY. § 1565 of which may run the waters to drown its life or health, surely we cannot maintain that there is any principle whereby the ap- proaches through one avenue shall be left open while the others are closed. In matter of proof, it may sometimes be difficult to satisfy the judge or jury affirmatively that bodily danger does exist from the approaches through the mind ; and when a woman cannot establish what she alleges, whether in a case of this sort or any other, her suit must fail. But this could furnish no just reason for denying relief to her when the conclusion of fact is evident beyond dispute. Hence, — § 1565. In England — this doctrine, after having been affirmed in the United States, has become fully established. In a suit by a clergyman's wife, it was not pretended that any physical vio- lence was likely to result to her from a continuance of the cohab- itation, but a constant and severe course of what the defendant deemed to be affectionate moral discipline, in connection with an assertion of extreme rights of command and control, had im- paired her health, rendering it necessary for her physical well- being to separate from him. The judge ordinary granted her prayer, and the full Divorce Court on appeal confirmed the deci- sion. Said Lord Penzance, at the former hearing : " Without dis- paraging the just and paramount authority of a husband, it may be safely asserted that a wife is not a domestic slave, to be driven at all cost, short of personal violence, into compliance with her husband's demands. And if force, whether physical or moral, is systematically exerted for this purpose, in such a manner, to such a degree, and during such length of time, as to break down her health and render serious malady imminent, the interference of the law cannot be justly withheld by any court which affects to have charge of the wife's personal safety." In the full court, Channell, B., observed : " The most frequent form of ill-usage which amounts to cruelty is that of personal violence, but tlie courts have never limited their jurisdiction to such cases alone. . . . We think that the judgment appealed against is in con- formity with the law as previously laid down." " He says," added Lord Penzance, " that he does not desire to injure her, and it has never been asserted that he does. But still she has nothing to hope, for Mr. Kelly is acting in the discharge of a religious duty. To any feelings of commiseration for his wife's sufferings, which may at last spring up, it will be his duty not to yield. He is 649 § 1567 JUDICIAL DIVORCES. [BOOK VII. obeying, so he told the court, a higher law ; and he protested against this court interfering with his proceedings, whatever their result, inasmuch as he is acting in discharge of a manifest duty." Hence the necessity of the judicial protection craved by the wife.^ § 1566. In Massachusetts, — at a somewhat earlier date, the doctrine was, through Chapman, J., laid down as follows : " Upon consideration of the whole subject, a majority of the court are of opinion that where a divorce is sought on the ground of cruelty, whether it be cruel and abusive treatment, or cruelty in neglect- ing or refusing to provide suitable maintenance for the wife, a reasonable construction of the statute requires that it shall appear to be, at least, such cruelty as shall cause injury to life, limb, or health, or create a danger of such injury, or a reasonable appre- hension of such danger upon the parties continuing to live to- gether. This is broad enough to include mere words, if they create a reasonable apprehension of personal violence, tend to wound the feelings to such a degree as to affect the health of the party, or create a reasonable apprehension that it may be affected." The learned judge proceeds to what, if it were before the minds of all judges and juries when considering cases of this sort, would lead us to be reconciled to the rule of law which pre- vents the mere infliction of mental suffering from constituting a ground of divorce.^ He said : " If it be supposed that this inter- pretation of the statute does not sufficiently provide for a class of cases where, though the abusive language or conduct of one party does not affect the health of the other, yet it makes the life of tlie other so wretched and intolerable that a divorce ought to be granted on account of the cruelty, we think such supposed cases cannot exist. For deeply wounded sensibility and wretch- edness of mind can hardly fail to affect the health. And where there is not this evidence of injured feeling, we can see no ground for granting a divorce that is not uncertain and dangerous, and that would not authorize divorces for slighter causes than the legislature apparently contemplated." ^ Again, — § 1567. In a California Case, — " it appears," said Cope, C. J., " that the defendant was in the habit of using toward the plaintiff the vilest and most abusive language, falsely charging her with 1 Kelly V. KeUy, Law Rep. 2 P. & M. » Bailey v. Bailey, 97 Mass. 373, 380, 31, 32; on appeal, 59, 61, 62, 72, 73. 381. See, and query, Lyster o. Lyster, 2 Compare with ante, § 1552. Ill Mass. 327, 329. \ 650 CHAP. ZLIX.J CRUELTY. § 1569 adulterous intercourse ; that she is a weak, nervous woman, modest in her deportment, and amiable in her disposition ; that the conduct of the defendant caused her much mental suffering, producing fits of illness, and threatening permanent injury to her health, rendering a separation from him necessary." Thereupon a divorce was granted her, while still the court adhered i to the doctrine that suffering inflicted on the mind, to be a ground of divorce, must cast its effects on the body .2 Again, — § 1568. Mental Injury aiding Physical. — If in a particular case the pain inflicted on the mind is not sufficient in degree or conti- nuity to imply the full physical danger required for divorce, or if we assume that it is never alone to be regarded as legal cruelty, still, by all opinions, when a wife has shown against her husband physical acts tending to bodily harm, she may then, from this foundation, introduce evidence of what is addressed to the mind ; as, for example, obscene language, and language and conduct calculated to degrade her, or otherwise to wound her feelings.^ Dr. Lushington once observed of foul and disgusting language, that it " may not alone be cruelty in its legal sense ; but the use of it would induce the court more readily to believe evidence as to personal violence ; for it would manifest a total want of self-com- mand, and the absence of all controlling principle."* Among the worst forms of this sort of fact are — § 1569. Accusations against Chastity. — Scarcely anything can be more grievous to a true and faithful wife than a malicious charge from her husband of incest ^ or simply of common adultery. There may be circumstances justifying the accusation, — as, when it is honestly made in a judicial proceeding,^ — in which 1 Anterior to the statute quoted ante, Jur. 143, 144 ; Folmar v. Folmar, 69 Ala. § 1350, note. 84. And see Evans v. Evans, 1 Hag. Con. 2 Powelson v. Powelson, 22 Cal. 358, 35, 4 Eng. Ec. 310, 327. 360. « Dysart v. Dysart, 1 Rob. Ec. 106, 3 rarnham v. Earnham, 73 111. 497; 117, 121; Whispell u. Whispell, supra; Day V. Day, 56 N. H. 31G ; Gibbs v. Gibbs, Gibbs v. Gibbs, 18 Kan. 419. 18 Kan. 419; Swatmau v. Swatman, 4 ^ Gale w. Gale, 2 Rob. Ec. 421 ; Smith Swab. & T. 135; Kennedy v. Kennedy, 73 v. Smith, 13 Stew. Ch. 566. Any Crime. N. Y. 369; Freeman v. Freeman, 31 Wis. — So, generally, a charge of any crime. 235 ; Johns v. Johns, 57 Missis. 530 ; Nogees v. Nogees, 7 Tex. 538, 58 Am. Briggs V. Briggs, 20 Mich. 34 ; Knight D. 78. But not when duly and properly V. Knight, 4 Swab. & T. 103 ; Goodrich made, in the course of legal proceedings. V. Goodrich, 44 Ala. 670; Thomas v. Small u. Small, 57 Ind. 568; Homes v. Thomas, 5 C. E. Green, 97; Close v. Carrier, 16 La. An. 94. Close, 10 C. E. Green, 526; Whispell v. 6 De Haley u. Haley, 74 Cal. 489, 5 Whispell, 4 Barb. 217; Moyler v. Moyler, Am. St. 460. 11 Ala. 620; Saunders v. Saunders, 10 651 § 1570 JUDICIAL DIVORCES. [bOOK VII. case it will not be deemed malicious.^ And the facts attending a malicious charge, and the terms in which it is expressed, will vary : so there can be no uniform rule for it. Standing abso- lutely alone, and with no aggravations, it is commonly regarded as not quite sufficient ; ^ yet when presented with other facts which are apt to appear with it enhancing its enormity, it is deemed a gross act of cruelty.^ For example, a divorce was properly granted where the husband frequently and without provocation charged his wife with adultery, called her a liar in the presence of others, and on one occasion used personal violence.* And doubtless something short of this would have sufficed. There are cases which even appear to regard the accusation standing alone as enough, especially if repeated, and more especially if publicly made.^ And this niay well be so under laws rendering mere in- dignities, without danger to the person, adequate.^ But under the rule requiring physical danger, the mere accusation would often come short. Yet if it was deep and earnest, attended by paroxysms of greatly inflamed jealousy, the apprehension of vio- lence might arise on very slight further circumstances appearing, or on none. Or — § 1570. Accusation Public. — If the husband should carry be- yond his dwelling the assertion that his wife was a common pros- titute, and it should be believed, she would be certainly exposed to indecent assaults from men of the baser class, and the respon- 1 Where the husband believed his 517; Cart-wright v. Cartwright, 18 Tex. groundless charge of adultery to be true, 626; Cook v. Cook, 3 Stock. 195; Allen and on discovering his mistake expressed v. Allen, 31 Mo. 479 ; Little o. Little, 63 regret, the court seemed to deem it of N. C. 22 ; Avery v. Avery, 33 Kan. 1, 51 little weight. SmaUwood u. Smallwood, Am. R. 736, note ; Wheeler u. Wheeler, 2 Swab. & T. 397. And see De Meli v. 53 Iowa, 511, 36 Am. R. 240; Smith v. De Meli, 67 How. Pr. 20. Smith, 13 Stew. Ch. 566 ; Myrick v. My- 2 And see Lewis v. Lewis, 5 Misso. rick, 67 Ga. 771. But see Shaw v. Shaw, 278; Cheatham v. Cheatham, 10 Misso. 17 Conn. 189, 194. 296. * Lyle v. Lyle, 86 Tenn. 372. And see 3 Durant v. Durant, 1 Hag. Ec 733, Smith v. Smith, 13 Stew. Ch. 566. 769, 3 Eng. Ec. 310, 328; Bray v. Bray, 5 Smith v. Smith, 8 Or. 100; Eggerth 1 Hag. Ec. 163, 3 Eng. Ec. 76; Otway v. v. Eggerth, 15 Or. 626; Wagner v. Wag- Otway, 2 Phillim. 95, 1 Eng. Ec. 200; May- ner, 36 Minn. 239 ; Williams v. Williams, hugh V. Mayhugh, 7 B. Monr. 424 ; Whis- 67 Tex. 198 ; Jones v. Jones, 60 Tex. 451 ; pell V. Whispell, 4 Barb. 217; Jelineau v. Pinkard v. Pinkard, 14 Tex. 356, 65 Am. Jelineau, 2 Des. 45 ; Kirkman v. Kirkman, D. 129. And see Sheffield v. Sheffield, 3 1 Hag. Con. 409, 4 Eng. Ec. 438; Yule t). Tex. 79, 84. yule, 2 Stock. 138; Sharp v. Sharp, 2 « Ante, § 1535, 1550. Sneed, 496; Collins v. Collins, 29 Ga. 652 CHAP. XUX.J CRUELTY. § 1573 sibility would rest on him. Nothing could be more completely within the most restricted definitions of cruelty.^ § 1571. Charge of Impotence. — An unfounded accusation that the wife is physically incapacitated for the marriage bed may be, in connection with other facts, a circumstance of great signifi- cance against the husband.^ And — § 1572. Habits and Temper. — The habit of the husband to abuse his wife,^ and his ordinary temper,* are relevant. § 1573. Further of Auxiliary Pacts. — Dr. Lushington, after ob- serving that in cruelty suits " the species of facts most generally adduced are, first, personal ill-treatment, which is of different kinds, such as blows or bodily injury of any kind; secondly, threats, of such a description as would reasonably excite in a mind of ordinary firmness a fear of personal injury," — added, that when these are admitted, minor circumstances may be shown, " because on many occasions they may illustrate other facts. They may afford information of importance ; and where the witnesses do not speak with precision, or where the evidence is not clear, they may influence the amount of alimony (if the suit be successful) to be allotted to the wife. But tliese cir- cumstances must not be light or trifling ; they should be of the ' In a New Jersey case, the Chancellor series of general ill conduct, was accepted observed : " The complainant alleges that as adequate foundation for a divorce, her husband, for the purpose of laying a Cresswell, J. observed : " A man who foundation of a divorce from her, nego- has insulted his wife by treating her in tiated a plan with one Alexander Dawson, the street like a common prostitnte is by which he, Dawson, after his wife had guilty of at least as great an indignity gone to bed, was to go iu her room, and as if he had spat in her face. I can im- get into her bed, and then witnesses were agine nothing more insulting or shocking to be introduced into the room suddenly, to a woman of proper feeling than being and detect him in that position. If this so treated. ... It is a ciise of the gross- charge be true, a more base attempt to est and most abominable cruelty." Mil- rain the character of his wife could not ner v. Milner, 4 Swab. & T. 240. In such be conceived of, and should forever ah- a case there is, of course, physical danger solve her from all further obligations created; because she may be arrested as to him." Graecen v. Graecen, 1 Green a street-wallcer. But the reader cannot Ch. 4.59. See also Thomas v. Thomas, 2 fail to see that in these cases the court Coldw. 123. The peril of an unfounded merely seizes upon a technical and inci- divorce, involved in this case, depriving dental matter to get round the rule which the wife of physical maintenance, would holds mere apprehended mental suffering seem to be completely within the legal to be insuiBcient. idea of cruelty. Where the husband had ^ Van Arsdalen v. Van Arsdalen, 3 so conducted toward his wife in the street Stew. Ch. 359. as to have her taken by a passer-by for s Otway v. Otway, 2 Phillim. 95. a prostitute, — he had, indeed, assaulted * Westmeath v. Westmeath, 2 Hag. Eo. her, but no injury was suffered from the Supp. 1, 4 Eng. Ec. 238, 283, 293. assault, — this, as the leading fact in a 653 § 1574 JUDICIAL DIVORCES. [BOOK VII. same character as the principal charges, though not to the same extent." ^ This was said with reference to what under the eccle- siastical practice, the libel maj properly allege, not to what is provable qutside the allegations. For a court or jury may take into the account facts which are not pleaded, when they serve as proofs of those which are ; though, of course, they cannot be the foundation, or only ground, for the divorce.^ In this view, the same learned judge observed : " The whole character and conduct of tlie parties have been, and ever must be in all these cases, necessary ingredients in the judgment ; without them, the truth can never be sifted or the just conclusion reached. On a general review must, in some degree, depend the belief of particular oc- currences, and the probability of future conduct if the parties are to live together." ^ §1574. Motives — (Jealousy — Other Passions). — The object of this divorce being future safety,* it is immaterial from what motives the complained-of acts proceed, except as in some circum- stances affording probabilities of their repetition or discontinuance. " It may be," said Lord Stowell, " from turbulent passion, or some- times from causes which are not inconsistent with affection,^ and are indeed often connected with it ; as, the passion of jealousy.'' If bitter waters are flowing, it is not necessary to inquire from what soui'ce they spring. If the passions of the husband are so much out of his control as that it is inconsistent with the personal safety of the wife to continue in his society, it is immaterial from ^ Neeld v. Neeld, 4 Hag. Ec. 263, 266. ing the course of connutial cohabitation, And see C. v, C. 28 Eng. L. & Eq. 603, and so forming a more accurate judgment 605 ; s. c. nom. Chesnutt v. Chesnutt, 1 upon the evidence as to particular facts." Spinks, 196; Gale v. Gale, 2 Rob. Ec. Chesnutt u. Chesnutt, 1 Spinks, 196, 197; 421. s. c. nom. C. u. C. 28 Eng. L. & Eq. 603. 2 Carpenteri). Carpenter, Mil ward, 159; * Ante, § 1536. Whispell V. Whispell, 4 Barb. 217. ^ See M^estmeath v. Westmeath, 2 Hag. 3 Dysart v. Dysart, 1 Eob. Ec. 106, 141. Ec. Supp. 1, 4 Eng. Ec. 238. See also D'Aguilar v. D'Aguilar, 1 Hag. ^ " Jealousy is a passion producing Ec. 773, 774, note, 3 Eng. Ec. 329, 331 ; effects as riolent as any other passion, Reese v. Reese, 23 Ala. 785 ; ante, § 1536. and there will be the same necessity to In one case, Dr. Lushiugton complained provide for the safety and comfort of the of the incompleteness of the evidence, as individual. If that safety is endangered follows : " The evidence affords very little, by violent and disorderly affections of the indeed I may say no information as to the mind, it is the same in its effects as if it terms on which these parties lived, till proceeded from mere malignity alone." shortly before the separation. No rela- Lord Stowell, in Kirkman v. Kirkman, tions who associated with them are pro- 1 Hag. Con. 409, 4 Eng. Ec. 438. Yet duced ; no friends ; and only one servant, mere jealousy, leading to no injurious The court is deprived, in this case, of the acts, is not cruelty authorizing divorce, advantage it sometimes possesses of trac- Boon v. Boon, 12 Or. 437. 654 CHAP. XLIX.] CRUELTY. § 157G what provocation such violence originated." ^ And in a case where Sir John Nicholl granted a divorce, " the cruelty imputed," he said, " is not that of cold malignity, or savage, continual, un- feeling brutality of disposition ; it is not that of satiated posses- sion, producing disgust and hatred ; the acts charged are not inconsistent with occasional kindness, with the existence and continuance of strong attachment, nay, even with violent affec- tion ; but the main features of the alleged cruelty are great irritability of temper, producing ungovernable passion, ending occasionally in acts of personal violence, and of course attended with the danger of a repetition of personal mischief." ^ Quite otherwise is to be regarded a mere — § 1575. Unintentional Act. — Such an act, though occasioning pain and injury, will not warrant a divorce ; because it does not imply future risk.^ § 1576. Drunkenness of the Husband, — wlien not putting the wife in physical peril, is not cruelty,* though in a future chapter we shall see that in a part of our States it is a separate ground foi; divorce.^ Doubtless, should a husband be made drunk by the force or fraud of a third person,^ acts of violence inflicted on his wife while he was in this condition would not subject him to the divorce for cruelty, because of his lack of responsibility for them, and because a repetition would not be probable. Yet voluntary intoxication is different : it is no defence to a tort or crime ; ^ in the divorce action it is to be taken into the account in connection 1 Holden v. Holden, 1 Hag. Con. 453, Brown v. Brown, Law Eep. 1 P. & M. 4 Eng. Ec. 452, 454. " If I were satisfied 46; Anonymous, 17 Abb. N. Cas. 231. that conduct dangerous in itself arose In Texas, the statutes of which State from morbid feelings out of the control do not require the ecclesiastical smvitia, of the [defendant] husband, I must act, Hemphill, C. J. observed : " Such drunk- if the danger exist." Dr. Lushiugton, in enness as totally or in a great degree dis- Dysart u. Dysart, 1 Rob. Ec. 106, 116. qualified the husband to discharge his 2 Westmeath v. Westmeath, 2 Hag. Ec. marital duties or obligations — such, for Supp. 1, 73, 4 Eng. Ec. 238, 272. In Shaw instance, as would compel the wife, as in ». Shaw, 17 Conn. 189, 195, it is observed this instance, to leave the husband — that the doctrine of the immateriality of would be a degree of cruelty in itself, and the motive applies to " cases of violence which, if continued for a length of time, where the natural consequence would be say three years, in analogy to the time pre- injurious or dangerous, and where the act, scribed by the statute for abandonment, therefore, was unlawful ; " but not where would amount in law to a ground for the act is itself lawful, and under ordinary divorce." Camp v. Camp, 18 Tex. 528, circumstances not hurtful. 534. 8 ISfeeld v. Neeld, 4 Hag. Ec. 263, 270. ^ Haskell v. Haskell, 54 Cal. 262. * Waskam o. Waskam, 31 Missis. 154; ' 1 Bishop Crim. Law, § 405. Hudson V. Hudson, 3 Swab. & T. 314; ' Bishop Non-Con. Law, § 511. 655 § 1579 JUDICIAL DITOECES. [BOOK VII, with the other facts.^ And though the drunkard husband treats his wife well when he is sober, his cruelty when drunk will en- title her to a divorce ; ^ for the drinking, followed by the cruel act, will be likely to be repeated. But — § 1577. Insanity — is unlike voluntary drunkenness. It is a disease, the danger of the coming whereof and its consequences the wife takes at the marriage ; and if it does appear, to her peril, the law provides merciful means for her protection through his restraint. Violence from an insane husband is not legal cru- elty.^ Yet we have some ground for saying that if the husband, not being insane generally, has a particular insane delusion which endangers the wife, she may have her protection in divorce,* — a doctrine not, in reason, to be applied where the law has its usual other restraints for the insanity. Beyond which, — § 1578. Change wrought by Disease. — It has been intimated that there may be a changed state of mind, produced by disease, which, while not insanity, is of a sort to render the wife unsafe, — entitling her, therefore, to a divorce. " If," said Cresswell, J., " an act of violence were committed under the influence of an acute disorder, such as brain fever, and it were made clear that, the disorder having been subdued, there was no danger of a recur- rence of such acts, the case would be different. But if the result of such a disease has been a new condition of the brain, render- ing the party liable to fits of ungovernable passion which would be dangerous to a wife, then undoubtedly this court is bound to emancipate her from such peril." ^ This doctrine seems simply to be that if a sane husband has become a peril to the wife, she may have a divorce, though at a previous time he had been cor- rect and harmless. § 1579. Violence — Forms of. — In reason, if a husband has once inflicted on his wife any violence of the sort and degree against which she is entitled to protection, the presumption of 1 Coursey v. Coursey, 60 HI. 186. man, 59 Mich. 605; Crichton v. Crichton> 2 Lockridge v. Lockridge, 3 Dana, 28, 73 Wis. 59. 28 Am. D. 52 ; Mason v. Mason, 1 Edw. ^ Wertz v. Wertz, 43 Iowa, 534 ; Pow- Ch. 278; Boggess v. Boggess, 4 Dana, ell v. Powell, 18 Kan. 371, 26 Am. R. 307; Hughes v. Hughes, 19 Ala. 307; 774; Hayward v. Hayward, 1 Swab. & Bowie V. Bowie, 3 Md. Ch. 51 ; Marsh v. T. 81. Marsh, 1 Swab. & T. 312; Power u. * Smith r. Smith, 6 Stew. Ch. 458. Power, 4 Swab. & T. 173; Waddell v. 6 Curtis v. Curtis, 1 Swab. & T. 192, Waddell, 2 Swab. & T. 584; Allen v. 213. Allen, 31 Mo. 479 ; Berryman v. Berry- 656 CHAP. XLIX.J CRUELTY. §1581 its repetition arises, and she may have her divorce unless some- thing appeai-s rendering repetition not probable. And such, it is submitted, is the doctrine whereon the practice in these cases proceeds. The form of the violence is immaterial ; it may be a blo-w, a push, or any other force.^ So — § 1580. Confine — Deprive of Air — Necessaries — Medical Care. — It is cruelty in a husband to confine his wife ; or knowingly to de- prive her of needful air ; ^ or to starve her ; or, having the means, to refuse her the necessaries, not the mere luxuries, of life ; ^ or to withhold in sickness medical assistance which he is able to provide.* § 1581. Venereal Disease. — It is gross cruelty for a husband knowingly to communicate to his wife venereal disease ; ^ and, in matter of evidence, if he does it, his knowledge of his condition and the danger of infection will be presumed." Beyond which, if he is aware of having become infected, then assumes to be cured without taking proper precautions to know that he is so, and recklessly has intercourse with his wife and infects her, the cruelty is complete.^ Still, for a man to marry with the disease on him, thus apparently endangering his wife, though she does 1 Dysart u. Dysart, 1 Eob. Ec. 106, 125 ; Saunders c. Saunders, 1 Rob. Ec. 549, 560; Ereeman v. Freeman, 31 Wis. 235; Turner v. Turner, 44 Ala. 437; Taylor v. Taylor, 76 N. C. 433; Pillar V. Pillar, 22 Wis. 658. 2 E,vans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 326, 327. 5 Butler V. Butler, 1 Parsons, 329 ; Smedley v. Smedley, 30 Ala. 714; Whit- acre V. Whitacre, 64 Mich. 232 ; Faller v. Faller, 10 Neb. 144; Eastes v. Eastes, 79 Ind, 363. And see Evans v. Evans, supra, 4 Eng. Ec. 350, 351. ■* Evans v. Evans, supra, 4 Eng. Ec. 351. " The denial of necessaries and com- forts, even of medical assistance, where there are no pecuniary resources, never can be construed into acts of cruelty ; but no one could, I think, entertain a reason- able doubt that such a denial, when the fortune was ample, might probably under circumstances be considered differently." Dr. Lushington, in Dysart v. Dysart, 1 Eob. Ec. 106, HI. And see Jenness v. Jenness, 60 N. H. 211. 6 CoUett V. CoUett, 1 Curt. Ec. 678; VOL. I. — 42 Long V. Long, 2 Hawks, 189 ; Anony- mous, 17 Abb. N. Cas. 231. ^ Brown v. Brown, Law Rep. 1 P. & M. 46 ; Boardman v. Boardman, Law Rep. 1 P. & M. 233. ' Strain v. Strain, 13 Scotch Sess. Cas. 4th ser. 132. In this case, in the words of Lord Shand, " The disease was contracted by the defender recently before his mar- riage. He was not treated by a medical man at all, but by a person unskilled in the treatment of disease, or in the treat- ment of such a, disease. The sore was indurated and still there, so that the risk in connection was quite obvious, and he would have been told so by any medical man. Indeed, he seems to have been con- scious of his state, for I believe his ^\ife when she says that he had no connection with her tin some days after the marriage. But then, in the knowledge of these facts, he did have connection with his wife, with the result of communicating the disease to her, and I cannot characterize that otherwise than as a case of gross cruelty." p. 137. 657 § 1586 JUDICIAL DIVORCES. [BOOK VII. not take it, has been deemed not to be legal cruelty .^ And in reason it would not be, if he neither had nor intended to have any intercourse with her until he was cured, but otherwise if in fact he put her in peril.''' § 1582. Forcing to Bed with Disease. — A husband's attempt, while he has venereal disease, to force the wife to his bed, is re- garded as of a mixed nature, partly cruelty and partly evidence of adultery .3 So, — § 1583. Communicating Itch. — The wilful communication of the itch is an act of cruelty, though perhaps, standing quite alone, not sufficient* § 1584. Ill-treating Others thin Wife. — In reason, it is not ab- solute and direct cruelty to a wife to ill-treat a third person ; and still there may be such a connection between her and the third person, or the ill-treatment may be of such a sort, that considered in all its circumstances it will show the wife to be in peril. Some illustrations from the books are — § 1585. Debauching Servant. — A husband's endeavors to de- bauch his woman-servant have been deemed cruelty, " perhaps," says Lord Stowell, " not alone sufficient to divorce, but which might weigh, in conjunction with others, as an act of considerable indignity and outrage on his wife's feelings. The attempt to make a brothel of his own house was brutal conduct, of which the wife had a right to complain." ^ Again, — § 1586. Hl-Treatment to Child or other Relative. — Where a husband, to harass his wife, ill-treats a child ^ or other relative of hers,'^ or commits any obscenity in the presence of such person,^ it is cruelty to her, though not always alone enough. Dr. Lushington says : " An act of cruelty on the part of a father to a daughter is not necessarily cruelty towards the mother, although it may amount in certain circumstances in the eye of the law to such. 1 Ciocci V. Ciocci, 26 Eng. L. & Eq. « Bramwell v. Bramwell, 3 Hag. Ec. 604, 1 Spinks, 121. 618, 5 Eng. Ec. 232, 242 ; Friend v. Friend, 2 And see Canfield u. Canfield, 34 53 Mich. 543, 51 Am. R. 161. See C. v. Mich. 519. C. 28 Eng. L. & Eq. 603, 608; Mayhew v. 3 Popkin V. Popkin, 1 Hag. Ec. 765, Thayer, 8 Gray, 1 72 ; Everton v. Everton, note, 3 Eng. Ec. 325. And see Cart- 5 Jones, N. C. 202 ; Gleason v. Gleason, 16 Wright V. Cartwright, 18 Tex. 626. Neb. 15. 4 C. V. C. 28 Eng. L. & Eq. 603, 606 ; ' Saunders v. Saunders, 10. Jur. 143. 8. c. nom. Chesnutt v. Chesnutt, 1 Spinks, 8 Goodman v. Goodman, 26 Mich. 417; 196. Briggs v. Briggs, 20 Mich. 34. See Miles 6 Popkin V. Popkin, 1 Hag. Ec. 765, v. Miles, 76 Pa. 357, note, 3 Eng. Ec. 325. 658 CHAP. XLIX.] CRUELTY. § 1588 The father may be guilty of the greatest cruelty to his children, and yet be guiltless in respect to his wife ; or he may be guilty of far less cruelty to his children, and this less degree of cruelty in regard to the children will make him criminal towards his wife." The test seems often to be whetiier or not the cruelty was prac- tised on the child for the purpose of annoying the mother.^ And the fact that it was in her presence is important, and not improb- ably in some circumstances essential to its admission.^ In one case it was under the particular facts deemed enough that the husband expelled from his house his wife and her dependent daughter by a former husband, and made their separation the condition of taking back the wife.^ § 1587. Wife in Peril from Others. — On the principle that one is responsible for what he permits a servant to do, if a husband in spite of his wife's remonstrance keeps in his house persons who by their treatment put her in -peril, it is his cruelty, for which she may have a divorce.* § 1588. Damaging Property. — In a husband's suit in the Eccle- siastical Court against the wife for her cruelty, he pleaded " that she had damaged a valuable grand piano-forte by striking it re- peatedly upon the keys ; " and this allegation was rejected, with the observation " that such conduct might not unfairly be consid- ered as cruelty to her husband, being a wanton abuse of liis prop- erty, but " it was not " quite sufficient to plead a single act of that kind done in a moment of passion." ^ In a wife's suit, Dr. Lush- ington declined to receive her allegation that her brother gave her a favorite pony, suitable for her to drive, she having been recommended to drive out for her health; but her husband, to 1 Wallscourt v. Wallscourt, 11 Jar. not bound to support step-children. Such 134; Perry v. Perry, 1 Barb. Ch. 516. a rule, if applicable, is no excuse for per- In Toume v. Tourne, 9 La. 452, it was sonal violence and indecent abuse, and it held that the father's partial treatment could not palliate any cruelty which was of one of the children, and the child's dis- resorted to from vindictiveuess. But we obedience toward the mother, supposed to do not think it has any place in this con- result from his encouragement, are not troversy. And we are not required on sufficient ground for a separation. this record to consider what the law is on ^ Suggate V. Suggate, 1 Swab. & T. that general subject." p. 547. Compare 489. See Everton w. Everton, supra. with Maben v. Maben, 72 Iowa, 658 ; ' Friend u. Friend, 53 Mich. 543, 51 Kickard y. Rickard, 9 Or. 168; Donald Am. R. 161. Said Campbell, J.: "It is v. Donald, 21 Fla. 571. difficult to imagine any worse cruelty to * Hall v. Hall, 9 Or. 452. a mother than such conduct, if not ex- ^ Kirkman v. Kirkman, 1 Hag, Con. plained or excused. The only explanation 409. And see White v. White, 1 Swab. & that is given h that by law a husband is T. 591. 659 § 1590 JUDICIAL DIVORCES. [BOOK VII. annoy her, himself drove the pony, though he had horses of his own standing idle, until . he spoiled it from bad treatment ; then gave it, together with ^£10 which her mother had made her a present of, in exchange for another pony ; and, lastly, sold this pony, pocketed the money, and forbade her the use of his own horses. The judge observed that " if any fact were proved, it could have no effect upon the court, which can never attend to quarrels of this sort." ^ Yet it is difficult to doubt that such matter might be relevant and very significant when connected with other facts.^ § 1589. Desertion — of the wife by the husband, not endanger- ing her person, is not of itself cruelty .^ Yet if it involves the withholding of necessaries,* it is otherwise, and " in conjunction with acts of cruelty, it frequently is " sufficient.^ In Scotland, the positive wrong of turning a wife out of doors authorizes a judicial separation for cruelty ; but concerning the mere negative injury of deserting her the Scotch law appears not to be settled, though Erskine thinks even this sufficient.^ § 1590. Refusing Connection. — It follows that it is not neces- sarily cruelty, not inquiring whether or not it is desertion,' for the husband to take a separate bed,^ or for either spouse to withhold from the other marital connection.^ Yet a circumstance of this sort may be relevant in conjunction with other facts.^" Thus, looking at the question in the light of principle, we may discover what often appears in cases of impotence in the man, that the health of the woman has suffered from her being obliged to sleep with a male person without any proper gratification of passions thereby excited. And there can be no doubt that a capable party, whether man or woman, may in this way inflict an injury to the 1 Saunders v. Sanndera, 10 Jur. 143, wright v. Cartwright, 18 Tex. 626. See 144. See also D'Aguilar v. D'Aguilar, post, § 1614. 1 Hag. Ec. 773, note, 3 Eng. Ec. 329, 331 ; "1 Eras. Dom. Kel. 458. See also Close V. Close, 9 C. E. Green, 338. Jones v. Jones, Wright, 155. 2 Consult the explanations, ante, ' Post, § 1676-1686. § 1573. ^ D'Aguilar u. D'Aguilar, 1 Hag. Ec. 3 Fountain v. Fountain, 23 111. Ap. 773, 774, note, 3 Eng. Ec. 329, 331 ; 529. Orme 17. Orme, 2 Add. Ec. 382, 2 Eng. « Ante, § 1580. Ec. 354. 5 Evans v. Evans, 1 Hag. Con. 35, 120, ' Cousen v. Consen, 4 Swab. & T. 164; 4 Eng. Ec. 310, 349 ; Sullivan v. Sullivan, Cutler v. Cutler, 2 Brews. 511 ; Cowles v. 2 Add. Ec. 299, 2 Eng. Ec. 354; Severn Cowles, 112 Mass. 298. V. Severn, 3 Grant, U. C. Ch. 431 ; Cart- ^^ Van Arsdalen ;;. Van Arsdalen, 3 Stew. Ch. 359. 660 CHAP. XLIX.] CRUELTY. § 1593 health of the other on account of which a divorce for the cruelty ought to be granted. § 1591. Thirdly. The Degree of Cruelty, or what Extent of Harm must he apprehended : — • Indefinite Defining. — According to our definition of cruelty,^ the apprehension of physical danger to the complaining party must, to authorize divorce, have proceeded " to a degree justifying a with- drawal" from cohabitation. Another form of the same idea is, that the peril to the wife must be sufficiently imminent and grave to incapacitate her for the proper discharge of her matrimonial duties.^ If this defining seems indefinite, so in truth is the law. There is no possibility of measuring the depth of woe or danger required, except by the understandings of the men who occupy the bench and the jury-box, enlightened and strengthened by what has been heretofore deemed or adjudged. Thus, — § 1592. Kent — (Pothier). — Chancellor Kent observes that "though a personal assault and battery, or a just apprehension of bodily hurt, may be ground for this species of divorce, yet it must be obvious to every man of reflection that much caution and discrimination ought to be used on this subject.^ The slightest assault or touch in anger would not surely, in ordinary cases, justify such a grave and momentous decision. Pothier says * tha't a blow or stroke of the hand would not be a cause for separation under all circumstances, unless it was often repeated. The judge, he says, ought to consider if it was for no cause or for a trivial one that the husband was led to this excess ; or, if it was the result of provoking language on the part of the wife, pushing his patience to extremity. He ought to consider whether the vio- lence was a solitary instance, and the parties had previously lived in harmony. All these circumstances will, no doubt, have due weight in regulating the judgment of the coui't."^ § 1593. Sir John Nicholl : — " What must be the extent of in- jury, or what will reasonably excite the apprehension, will depend upon the circumstances of each case. So, likewise, what may aggravate* the character of ill-treatment must be deduced from various considerations, — in some degree from the station of the 1 Ante, § 1531. derson v. Henderson, 88 III. 248; Carr v. ^ Observations of Lord Stowell, ante, Carr, 22 Grat. 168. § 1542 ; post, § 1594; Close v. Close, 10 ^ Traite' du Contrat de Mariage, § 509. C. E. Green, 526. ^ Barrere v. Barrere, 4 Johns. Ch. 187, 8 Edmond's Appeal, 57 Pa, 232; Hen- 189. 661 § 1594 JUDICIAL DIVORCES. [BOOK VII. parties, in some degree from the condition of the person suffer- ing at the time of the infliction. The complexion of individual acts may be heightened, nay, the acts may almost change their very essence, by the accompaniments. Not only particular sta- tions and situations, and the feelings almost necessarily arising out of them, but even acquired feelings may be entitled to some attention. In Evans v. Evans,^ Lord Stowell's remarks establish that what wounds, not the natural, but the acquired feelings, will not absolutely be excluded by the court, when stated merely as a matter of aggravation. A fortiori, then, feelings which naturally belong to a wife or to a mother of every station constitute a part of the consideration. ... A blow between parties in the lower conditions and in the highest stations of life bears a very dif- ferent aspect. Among the lower classes, blows sometimes pass between married couples who, in the main, are very happy and have no desire to part. Amidst very coarse habits, such incidents occur almost as freely as rude or reproachful words ; a word and a blow go together. Still, even among the very lowest classes there is generally a feeling of something unmanly in striking a woman ; but if a gentleman, a person of education, the disci- pline of which emollit mores, and tends to extinguish ferocity, if a nobleman of high rank and ancient family uses personal vio- lence to his wife, his equal in rank, the choice of his affection, the friend of his bosom, the mother of his offspring, — such con- duct, in such a person, carries with it something so degrading to the husband, and so insulting and mortifying to the wife, as to render the injury itself far more severe and insupportable. The particular situation of the parties when the ill-treatment is inflicted may create a still further aggravation." ^ § 1594. Lord stow^u. — The causes of complaint must be grave and weighty ^ and such as permanently to destroy the peace and happiness.* " Mere turbulence of temper, petulance of manners, infirmity of body or mind, are not numbered amongst those causes. When they occur, their effects are to be subdued by management if possible, or submitted to with patience. For the engagement was to take for better, for worse ; and painful as the performance 1 Evans v. Evans, 1 Hag. Con. 35, 38, ' Mason u. Mason, 1 Edw. Ch. 278 ; 4 Eng. Ec. 310, 311. Coles v. Coles, 2 Md. Ch. 341 ; Schindel v. ' 2 Westraeath v. Westmeath, 2 Hag. Ec. Schindel, 12 Md. 294 ; Childs v. Childs, 49 Supp. 1, 4 Eng. Ec. 238, 271. And see Md. 509. David 0. David, 27 Ala. 222. * Beall v. BeaU, 80 Ky. 675. 662 CHAP. XLIX.] CRUELTT. § 1600 of this duty may be, painful as it certainly is in many instances which exhibit a great deal of the misery that clouds human life, it must be attempted to be sweetened by the consciousness of its being a duty, and a duty of the very first class and importance." ^ Further to explain and illustrate, — § 1595. The Physical Condition — of the wife is specially im- portant on a question of the husband's cruelty to her. For con- duct not deeply reprehensible when she is well may be very cruel when she is sick. Thus, — § 1596. Sick. — If the wife is critically ill, it will be extreme cruelty in the husband to neglect her, and to address her in harsh and brutal language.^ Likewise, — § 1597. Pregnancy — requires special consideration ; so that the husband's cruelty is aggravated by the wife's being in this con- dition.^ And — § 1598. Childbirth — is another critical period, requiring spe- cial consideration and forbearance. Thus, a wife, contrary to her husband's wishes, went to the house of her parents to be con- fined. On receiving notice of her delivery, he did not at first go to see her ; and when afterward he went in reply to a reproachful letter from her, he spoke to her harshly, intimated that the child was begotten by her father, and told her he had come to warn her that if she did not return before the issue of the next week's paper he should advertise her. And she was adjudged entitled to . a divorce. "She could not with comfort," said Cooley, J., "cohabit as wife with the defendant afterwards." * § 1599. Advanced Age — in the wife will aggravate the hus- band's cruelty ; for " there may be relative cruelty, and what is tolerable by one may not be by another." ^ § 1600. Rank and Station — are less regarded in a democratic country like ours than in England, — some observations upon which by an eminent English judge have been quoted.^ And still the position in life of the parties, and the degree of their refine- ment, should be considered with us.' Yet the distinction should 1 Lord Stowell, in Evans v. Eyans, 1 Fleytas v. Pigneguy, 9 La. 419. See Dy- Hag. Con. 35, 4 Eng. Ec. 310, 349; s. p. Bart v. Dysart, 1 Rob. Ec. 106, 109. Turbitt V. Turbitt, 21 111. 438; Everton v. * Palmer v. Palmer, 45 Mich. 150, 152, Everton, 5 Jones, N. C. 202. 40Am. K. 461. 2 Hoyt V. Hoyt, 56 Mich. 50. " 6 D'Aguilar v. D'Aguilar, I Hag. Ec. » Westmeath v. Westmeath, 2 Hag. Ec. 773, 3 Eng. Ec. 329, 335. Supp. 1, 4 Eng. Ec. 238, 294; Evans v. « Ante, § 1593. Evans, 1 Hag. Con. 35, 4 Eng. Ec, 310, 330; ' Kline v. Kline, 50 Mich. 438. 663 § 1603 JUDICIAL DIVORCES. [BOOK VII. not be carried too far, or into cases where it does not belong. " It is said," observed Parker, J. in the New York Court, " that the grossly indecent language " which a husband was shown to have " spoken to and of his wife, is to find palliation if not excuse in the fact that the parties moved in a circle of life less refined than others who have enjoyed the advantages of a more cultivated socifety. But I deny the application of the rule to a case like this. The decencies of life belong equally to all classes ; and in none are they more carefully cultivated, and more faithfully observed, than among the respectable farmers of our country. The human heart is the same in every grade of society. From it flows, in the humblest as well as highest walk of life, the same current of affection that surrounds the domestic hearth with gentle con- duct and kind influences. Delicacy of feeling belongs as well to the cottage as to the statelier mansion. The mind may be culti- vated by study, and the manners polished by refined association ; but the natural affections of the heart are rarely improved by contact with the world. In their native purity they recoil at any exhibition of indecency either in word or deed. Want, of culti- vation may excuse an unrefined or even coarse expression ; but it forms not the slightest apology for indecent conduct or obscene language." ^ § 1601. Slight Battery. — Not every slight touching of the per- son of the wife by the husband, even in anger, will authorize a divorce.^ Especially — § 1602. Rude and Dictatorial. — It is not sufficient that a hus- band is rude and dictatorial, and even at times negligent when the wife is worn and weary .^ Still, — § 1603. Not Gross and Persistent. — The case need not be an aggravated one of constant, deliberate, and brutal ill usage.* Less will incapacitate a wife for the due performance of matrimonial duties.^ Therefore a charge to the jury that " the acts must be persistent, and the cruelty must be so extreme in its nature that in itself it furnishes an apprehension that the continuance of the cohabitation would be attended with bodily harm to the wife," 1 WhispeU V. Whispell, 4 Barb. 217. ' Carr v. Can, 22 Grat. 168. And see 2 Richards i). Richards, 1 Grant, Pa. Thomas v. Thomas, 5 C. E. Green, 97. 389 ; Henderson v. Henderson, 88 HI. 248 ; * Cases held sufficient are Cook v. Donald v. Donald, 21 Fla. 571. And see Cook, 3 Stock. 195; Turner v. Turner, 44 Thomas v. Thomas, 5 C. E. Green, 97. Ala. 437; PiUar v. Pillar, 22 Wis. 658. 664 5 Ante, § 1591. CHAP. XLIX.] CRUELTY. § 1605 was held by the appellate court to be too strong. " Acts of cru- elty, such as are specified, need not," it was said, " be persistent, need not become a fixed habit, before relief and safety can be had by a divorce." ^ If from irritability of temper the husband has occasionally lost command over himself, and under the sway of passion has done violence to his wife, and the circumstances lead to the presumption that it will be repeated, though seldom, the divorce will be granted.^ As to — § 1604. How many Acta. — " The law does not require," ob- serves Lord Stowell, " that there should be many acts. The court has expressed an indisposition to interfere on account of one slight act, particularly between persons who have been under long cohabitation ; because if only one such instance of ill-treatment, and that of a slight kind, occurs in many years, it may be hoped and presumed that it will not be repeated.^ But it is only on this supposition that the court forbears to interpose its protection even in the case of a single act ; because if one act should be of that description which should induce the court to think that it is likely to occur again, and to occur with real suffering, there is no rule that should restrain it from considering that to be fully suf&cient to authorize, its interfei^ence." * Indeed, — § 1605. One Act. — Since, as already explained,^ there may be cruelty justifying a divorce where there has been no violence, but only threats or other facts creating apprehension of physical in- jury, a fortiori one act of violence may under the circumstances of a case suffice. For example, one blow from the fist may be adequate,^ but it will not necessarily,'^ nor will a single instance of neglect to furnish a wife support or medical attendance always entitle her to a divorce.^ The husband's ill conduct was deemed ample where, it being usually harsh and hers exemplary, he seized 1 Mahone v. Mahone, 19 Cal. 626, 628, to a divorce, especially if the more recent 81 Am. D. 91, opinion by Norton, 'J. conduct of the husband has been differ- ^ Lockwood V. Lockwood, 2 Curt. Ec. ent ; yet evidence of the earlier is admis- 281, 7 Eng. Ec. 114, 125 ; Dysart v. Dy- sible in connection with the later, to show sart, 1 Bob. Ec. 106, 121, 470, 533,540; a series of wrongs and injuries. Ward V. Ward, 103 111. 477 ; Beyer v. « Holden v. Holden, 1 Hag. Con. 453, Beyer, 50 Wis. 254, 36 Am. R. 848 ; 4 Eng. Ec. 452, 454 ; French v. Trench, 4 Waltermire v. Waltermire, 110 N. Y. 183. Mass. 587. 2 8. p. Fleytas v. Pigneguy, 9 La. 419. 6 Ante, § 1532 and note, 1555. In Graecen v. Graecen, 1 Green Ch. 459, ^ Miller v. Miller, 72 Tex. 250. the Chancellor deemed that isolated acts ' Ante, § 1592. 1593, 1601 ; post, §1606. of long standing will not entitle the wife ^ Jenness v. Jenness, 60 N. H. 211. 665 § 1607 JUDICIAL DIVORCES. [BOOK VII. her, cursed her, and drove her and her babe from his house, tell- ing her not to return.^ § 1606. Further as to which. — If the husband's one act of vio- lence is exceptional, and his conduct has been otherwise good, it will seldom or never be deemed enough for a divorce,^ because the apprehension of repetition will not commonly arise. If it was not exceptional, but there were other things harmonious with it, yet not proceeding to the same extreme, they should be shown.^ Still, in an English case the wife was given her divorce though the parties had never met subsequently to the nuptials, except in the single instance when the cruelty was inflicted. " It has been laid down," said the learned judge ordinary, " that where one gross act of cruelty is of such a nature as to raise a rear sonable apprehension of further acts of the same kind, the court will grant relief." * In harmony both with this decision and with the general doctrine is a previous case, wherein the same learned judge held a single act of violence inflicted by the husband on the wife, not producing any considerable injury to her person, and not repeated, to be, though wrongful, insufficient. " That the conduct of the respondent," he said, " was unwarrantable, is true ; but I have examined the cases referred to, and find in each pi them, not merely one violent act committed under excitement, and not pro- ducing any considerable injury to the person, but repeated acts, furnishing such evidence of scevitia as warranted the court in con- cluding that the wife could not cohabit in safety with such a hus- band, and was therefore entitled to the protection of the court." ^ And in Louisiana it was deemed proper, in passing upon the suf- ficiency of a single act of cruelty, to take into consideration the age, habits, and modes of life of the parties.® § 1607. Terms of Statute — "Indignities." — The statute may be in terms to require more than a single act. The plural " indig- nities " has sometimes been so construed ; as, where the husband has offered to the " person " of the wife " indignities " render- ing her condition intolerable. In one case under this statute the court observed : " We had this cause here three years ago, and 1 Huilker v. Huilker, 64 Tex. 1. * Smallwood v. Smallwood, 2 Swab. & 2 And see Cook v. Cook, 3 Stock. 195. T. 397, 402. 8 And see Ford a. Ford, 104 Mass. ^ Lauberi'. Mast, 15 La. An. 593. And 198. see Doyle v. Doyle, 26 Mo. 545. * Beeves v. Eeeres, 3 Swab. & T. 139, 141. 666 CHAP. XLIX.j CRUELTY. § 1608 ■we then reversed a decree in favor of the wife, because, on the trial, the judge below had instructed the jury that if the husband in anger and madness twisted his wife's nose, she was entitled to a verdict." Referring to the entire instruction, the court pro- ceeds : " Though the judge [below] speaks of the general conduct of the husband, yet we understand his relevant instruction to be that if the pulling of the wife's nose was done in rudeness and in anger, in a coarse, vulgar, and harsh manner, there should be a verdict in her favor. This is substantially the very error that caused the former reversal. . . . It is not of a single act that the law speaks in the clause under which this case falls ; but of such a course of conduct or continued treatment as renders the wife's condition intolerable, and her life burdensome." ^ Yet on refer- ring to what was judicially said on the former occasion, we find the following : " It is quite possible that a single act of cruelty, on a single occasion, may be so severe, and attended ■with such corresponding circumstances, as might under a fair and liberal construction of this statute justify a divorce." But the particular act, under the circumstances appearing in evidence, was quite properly deemed not to be enough.^ Again, — § 1608. " Repeated." — The words in Illinois are " extreme and repeated cruelty ; " ^ and it is plain that a single act, though it may be "extreme" in point of cruelty, is not therefore "repeated." Tlie consequence of which is, that there can be no one act of vio- lence which alone will bring a case within this statute.* How far this unfortunate language may be mollified by construction it may not be easy to say in advance. To the writer it seems plain that there need not be double cruelty ; that is, first, such facts as alone would constitute cruelty by our unwritten law ; and, secondly, such other and disconnected facts as alone would amount to the same thing ; because, in these cases, acts are not viewed by a court as isolated, but each is a stick in a bundle comprising the entire mat- rimonial life. Nor, in the ordinary language of this department of the law, does the word " cruelty " necessarily mean such an aggregation of things portending danger as will constitute a com- plete cause of divorce, but it often denotes any competent act of a competent series. In one case under this statute, where the 1 Richards v. Richards, 37 Pa. 225, 227, see the Pennsylvania cases cited ante, opinion by Lowrie, C. J. § 1535. 2 Richards v. Richards, 1 Grant, Pa. ^ Ante, § 1535. 389, 391, opinion by Armstrong, J. And * Sharp v. Sharp, 16 Bradw. 348. 667 § 1611 JUDICIAL DIVORCES. [bOOK VII. husband had repeatedly used harsh and profane language to his wife, and had once choked her and thi-eatened to do so again, the " extreme and repeated " cruelty was held not to be constituted. " It is a positive requirement of the statute," said Walker, J., "that there shall be extreme and repeated cruelty to authorize the courts to dissolve the marriage tie. One act has not in this State been held to answer the requirements of the statute. And the uniform construction given to the act by this court, as an- nounced in a number of decided cases, is that the cruelty must consist in physical violence, and not in angry or abusive epithets, or even in profane language." ^ A single kick on one occasion, and long afterward a blow which might have been accidental, were together deemed not enough for a divorce.^ § 1609. Whole Matrimonial Life — All Pacts of Cruelty. — Re- turning now to the view that, to the extent already explained, the whole matrimonial life is to be taken into the account in determining whether or not the particular acts of cruelty import danger for the future,^ we see more distinctly how the combined conduct complained of should be regarded. The whole should be brought within the contemplation of the tribunal ; " for the ques- tion is, not whether this or that fact alone would render it the duty of the court to pronounce for a separation, but whether all the facts combined ought to lead to that result." * Now, partly to repeat, — § 1610. Not Sufficient. — An assault or stroke, a slap or slaps with the hand, in a single instance ; occasional petulance of tem- per, rudeness of language, sallies of passion, not endangering health or safety, — have been considered insufficient.^ So where the par- ties lived unhappily together, and sometimes cursed each other, and in a mutual quarrel the husband once pushed the wife out of doors without harming her, her prayer for divorce was refused.^ But — §1611. Sufficient — (Throwing Water — Spitting in Face). ■^- Throwing a bucket of water on the wife's head, with the threat 1 Embree v. Embree, 53 HI. 394, 395. » Ante, § 1573. It may be helpful to consult also the lUi- ' Dr. Lushington, in Saunders v. Saun- nois cases cited ante, § 1535; Coursey v. ders, 1 Rob. Ec. 549, 556. Conrsev, 60 lU. 186; Earnham v. Earn- ' Finley w. Einley, 9 Dana, 52, 33 Am. ham, 73 111. 497. D. 528. " Shorediche v. Shorediche, 115 lU. ^ Cooper w. Cooper, 10 La. 249. 102. 668 CHAP. XLIX.] CRUELTY. § 1613 of further violence if she did not leave the house, was held to be adequate, in a case where there was general unkindness of deport- ment and language.^ So is spitting in the wife's face gross cru- elty ; it seems to be sufficient alone, though this is not quite clear .^ Doubtless, like any other act, it takes color from the general tem- per of the parties and its special circumstances. § 1612. An Adequate Combination. — Sir John Nicholl, in a summing up of cruelty to the wife deemed adequate, said : " Here is violence, preceded by deliberate insult and injury. The sending away her horses [her separate property] while she was at church ; the forcibly carrying her and confining her to her room ; after- wards attempting forcibly to carry her back t'o her place of con- finement; the forming an adulterous connection with her maid; the keeping that servant in tlie house, notwithstanding the remon- strances of hi» wife and her friends ; the deposing his wife from the management of his family, and vesting it in this prostitute, — such circumstances have always been held by the court, not merely as acts of adultery, but as connected with cruelty. In addition to this, there is his conduct respecting the child [taken by him from her to sleep in the room with himself and the prostitute], not- withstanding the pretext of paternal right, the exercise of which courts of justice will not be disposed to scan too nicely ; yet here it was done, as has been shown, merely to distress his wife, — this is marital tyranny ; it is as clear an act of deliberate and un- manly cruelty as can be committed." ^ Again, — § 1613. Another — case describes as follows a husband's con- duct entitling the wife to a divorce : " He is in the habit of using language to her which a gentleman will not employ to his slaves ; he threatens to drive her from his house ; he slaps and chokes her ; and at the family altar, in her presence, he prays God to deliver him from her." The parties were members of the Metho- dist Episcopal Church, and the defendant admitted the prayer and claimed it was right. The court regarded it, if intended only for her ear, as the greatest abuse of all ; if a real prayer, there was danger his hands would execute what his heart desired.* 1 Moyler v. Moyler, 11 Ala. 620. ^ Payne v. Payne, 4 Humph. 500, 40 '^ Cloborn's Case, Hetley, 149 ; D'Agni- Am. D. 660. See also Clutch v. Clutch, lar V. D'Aguilar, 1 Hag. Ec. 773, 777, 3 Saxton, 474. In Jones v. Jones, Wright, Eng. Ec. 329, 331 ; Saunders v. Saunders, 244, and Beatty v. Beatty, Wright, 557, 1 Rob. Ec. 549, 561. the facts were clearly sufficient^ and much * Smith V. Smith, 2 Phillim. 207, 212, more. I Eng. Ec. 232, 234. 669 § 1616 JUDICIAL DIVORCES, [BOOK VII. § 1614. Another. — While in Mississippi the divorce for cruelty was from bed and board and that for combined adultery and cruelty was from the bond of matrimony ,i a wife applied for the former. There was no evidence of blows or even of threats from the husband ; but he disliked her. He had married her for her money, and on getting it he deserted her ^ and lived in adultery with another woman. She was miserably clad when he turned her off, and he neglected to provide for her afterward. The divorce for cruelty was granted.^ § 1615. "Endanger Life." — Under a statute authorizing divorce where the husband " is guilty of such inhuman treatment as to endanger the life of his wife," it was observed : " This clause is the definition of that degree of cruelty which in this State entitles the party to a divorce." The danger must be more than of mere bodily harm, it must imperil " the life of the wife." Yet even under this provision, there need not be actual violence; "but threats of violence," said the learned judge, " where there is danger of harm, — that is, of harm or injury to the life of the party, — are sufficient." * In another case it was said : " There may have been no act done by way of attempting the apprehended injury, and yet the court can as well see that there is danger as though there had been many attempts." ^ Danger to the health is, by construction, within this statute; for to impair health is to jeopardize life.® § 1616. How of Illustrative Cases. — In looking into these and other like illustrative cases, the practical object whereof is to find the line which separates the insufficient facts from the sufficient, we should remember that we are not informed how mucli less of cruelty than appeared would have been adequate, on the one side, or how little need have been added to make out a case, on the other side. It is also to be noted that the facts are always and necessarily reported more or less imperfectly. And, lastly, the mind of the judge may not have been in a condition of complete enlightenment ; for, where the principle is plain, a misapprehen- 1 Hutchinson's Code, 495, 496 ; Holmes 139, opinion by Wright, C. J. ; Cole v. V. Holmes, Walk. Missis. 474. Cole, 23 Iowa, 433. 2 Ante, § 1589. ^ Caruthers v. Caruthers, 13 Iowa, 266, 8 Pnlliara v. Pulliam, 1 Freeman, opinion by Baldwin, C. J. Missis. 348. ' Cole u. Cole, supra. See, also, on * Beebe v. Beebe, 10 Iowa, 133, 135, the construction of this statute, Knight V, Kiiight, 31 Iowa, 451. 670 CHAP. XLIX.J CRUELTY. § 1619 sion by the tribunal in applying it should not prejudice a subse- quent case. At best, we can but grope here among not wholly distinct facts, with only the reasonable hope of finding something to aid us in future litigation, yet with the knowledge that discern- ment will be required in its applica,tion. III. The Relative Rights and Duties of Husband and Wife. § 1617. Element in Cruelty. — Largely in these cases, the alleged acts of cruelty are accurately comprehensible only when contem- plated in the light of the relative rights and duties of the parties ; such as, — § 1618. Head of Family. — The husband is in law the head of the family.^ This implies a right to control its movements, in- cluding what the books speak of as government over the wife.^ But his power is not unlimited, nor at the present day is it pre- cisely what it was in the ruder early periods of our law. And commensurate with this right, of government is the duty of pro- tection and care. In Lord Stowell's words, " he is to practise tenderness and affection, and obedience is her duty." ^ §1619. Chastisement of the Wife — (England) — was in early periods of our law to some extent permitted to the husband. So that as explained by Chapman, C. J., when a writ of supplioavit issued for the protection of the wife against him, its terms were " that he shall well and honestly treat and govern the aforesaid B (his wife), and that he shall not do nor procure to be done any damage or evil to her of her body, otherwise than what reason- ably belongs to her husband for the purpose of the government and chastisement of his wife lawfully."* The ordinary expres- sion of the old doctrine was, that the husband may give his wife " moderate correction." Later the right was questioned in Eng- land,^ and it is believed now to be obsolete there. In 1860, on the trial of a divorce case, the judge ordinary said to the jury : " If a woman gets drunk and loses her self-possession, and makes use of personal violence towards her husband, or destroys his property, he may use some force or violence, if he cannot other- 1 Ante, § 1195 et seq. * Adams v. Adams, 100 Mass. 365, 370, ^ 1 Bishop Mar. Women, § 45 et seq. 1 Am. R. 111. 3 Oliver v. Oliver, 1 Hag. Con. 361, 4 5 i b], Cora. 444 ; Reeve Dom. Rel. 65. Eng. Ec. 429, 430, 671 § 1620 JUDICIAL DIVORCES. [BOOK VII. wise restrain her ; if she comes drunk into his shop, he may take her bj the shoulders and turn her out, but to follow after her and beat her is inexcusable ; there is no law authorizing a man to beat his drunken wife."^ §1620. Chastisement in our States — Ireland — Scotland. — The court in an early Mississippi case affirmed the old right of chas- tisement, under the limitation that the husband should " confine himself within reasonable bounds when he thinks proper to chas- tise his wife," so that he is not incapable in law of committing a criminal assault and battery upon her.^ We may doubt whether any right of chastisement would be accorded to a husband in this State now. The North Carolina courts long contended for and affirmed and reaffirmed this right, modifying it variously from time to time as new cases and new aspects of the question arose.^ At length, it appears to be utterly discarded ; or, in the words of Settle, J., " we may assume that the old doctrine that the hus- band had a right to whip his wife, provided he used a switch no larger than his thumb, is not law .in North Carolina."* In our other States, it was never received, or it is repudiated ; ® the re- sult being that wife-whipping, whether in moderation or other- wise, is nowhere allowed among us. The right also is denied in Ireland^ and in Scotland.'^ Hence, — 1 Pearman v. Pearman, 1 Swab. & T. ' S. v. Oliver, 70 N. C. 60; Taylor v. 601. See I'richard !;. Prichard, 3 Swab. Taylor, 76 N. C. 433. & T. 601 ; Kelly v. Kelly, Law Rep. 2 P. ^ Fulgham v. S. 46 Ala. 143, 147 ; AI- & M. 31, 59. bert v. Albert, 5 Mont. 577, 51 Am. R. 2 Bradley ». S. "Walk. Missis. 156, A. D. 86; Owen o. S. 7 Tex. Ap. 329, 337; 1824. The opinion, by Ellis, J., closes as Reeve Dom. Rel. 65; Bae. Abr. Bouvier's follows : " Family broils and dissensions ed. tit. Bar. & Feme, B. ; Baseom v. Bas- cannot be investigated before the tri- com, Wright, 632 ; Poor v. Poor, 8 N. H. bunals of the country without casting a 307, 313, 29 Am. D. 664; Perry v. Perry, shade over the character of those who are 2 Paige, 501, 503; S. v. Barnhard, Essex, unfortunately engaged in the controversy. Oyer and Terminer, 1849, Newark Daily To screen from public reproach those who Advertiser, 2 West. Law Jour. 301, Page may be thus unhappily situated, let the on Div. 153, note; Atkins f. Atkins, ante, husband be permitted to exercise the right § 1 555, note ; P. v. Winters, 2 Par. Cr. 10 ; of moderate chastisement in cases of great James v. C. 12 S. & R. 220, 226; S. vi emergency, and use salutary restraints in Buckley, 2 Harring. Del. 552 ; Shackett v. every case of misbehavior, without being Shackett, 49 Vt. 195; Gorman v. S. 42 subjected to vexatious prosecutions, re- Tex- 221 ; C. v. McAfee, 108 Mass. 458, suiting in the mutual discredit and shame 11 Am. R. 383 ; Gholston v. Gholston, 31 of all parties concerned." Ga. 625 ; Hurd on Habeas Corpus, 25 ; 1 ^ Joyner v. Joyner, 6 Jones Eq. 322, Bishop Crim. Law, § 891. 325, 82 Am. D. 421 ; S. v. Rhodes, Phil- ^ Carpenter v. Cairpenter, Milward, lips, N. C. 453, 455, 459, 98 Am. D. 78 ; 159. S. V. Black, Winst. i. 266, 86 Am. D. 436; ' 1 Fras. Dom. Eel. 241, 460. S. c. Mabrey, 64 N. C. 592, 593. ' 672 ' CHAP. XLIX.] CRUELTY. § 1624 8 1621. As Cruelty. — An act of wife-whipping constitutes legal cruelty, which in proper circumstances may authorize divorce.' Even under the rule of the ancient law the husband would not be justifiable if the wife were blameless.^ Under the modern law, though the wife's fault would not render him guiltless, it would in some circumstances within the expositions of our fifth sub-title bar her of the remedy of divorce,^ in others not.* § 1622. Imprisonment of the Wife — is different from chastise- ment. In general, it is not permitted to the husband ; " for," as was said in an old case, " she is entitled to all reasonable liberty if her behavior is not very bad." ^ But when, as was also observed in this case according to another report of it, " the wife will make an undue use of her liberty either by squandering away the hus- band's estate or going into lewd company,^ it is lawful for the husband, in order to preserve his honor and estate, to lay such a wife under restraint." ^ As to the — § 1623. Limits of English Doctrine. — A wife having causelessly absented herself from the husband's house, without his consent or knowledge, he brought suit against her for the restitution of conjugal rights. She did not appear to it, but absconded. Four years afterward he got her into his house by stratagem, and con- fined her in it ; she declaring that she would leave when she ha'd the opportunity. He was held to be justified.^ If there is a sepa- ration under articles, the husband's right to restrain the wife is at an end.^ But, — § 1624. In this Country, — where we reject the suit for the res- titution of conjugal rights, repudiating therefore by implication the principle of a compelled cohabitation whereon it is founded, there is apparently no just ground for permitting a husband to confine, even in his own house, a sane wife who is simply unwil- ling to dwell with him. It is believed that none of our courts will recognize this authority. Still the husband must, with us, be permitted to exercise some restraint ; for nur law makes him 1 Albert v. Albert, 5 Mont 577, 51 Am. Taylor v. Taylor, 2 Lee, 172, 6 Eng. Ec. E. 86. 81. 2 In re Cochrane, 8 Dowl. P, C. 630. » In re Cochriine, 8 Dowl. P. C. 630, 3 Trowbridge v. Carlin, 12 La. An. 882. Wadd. Dig. 15-t, note. * Albert v. Albert, supra. ' Reg. v. Leggatt, 18 Q. B. 781 ; Hex 5 Lister's Case, 8 Mod. 22 ; In re Price, v. Mead, 1 Bur. 542 ; Vane's Case, 13 2 Fost. & F. 263. East, 172, note, 1 W. Bl. 18; Hurd on 6 S. V. Craton, 6 Ire. 164. Habeas Corpus, 34. ' Rex V. Lister, 1 Stra. 478. And see VOL. I. — 43 673 § 1627 JUDICIAL DIVORCES. [BOOK VII, criminally responsible for her acts of crime committed in his pres- ence, and civilly for her torts whether he is present or absent. And it would be absurd to deny him all means of avoiding these heavy liabilities. He must have the right to the physical control over her necessary to free himself. And a " father is fully justi- fied in using all reasonable and necessary force to protect himself" against her interference in his proper and just chastisement of a child.i Nor can we object to the doctrine that a husband may lawfully take his wife by force from the possession of an adul- terer.2 Thus, — § 1625. Power as broad as Responsibility. — It was said in a Pennsylvania case: "A man owes to his wife affection, fidelity, and protection. He has a right to reciprocity of feeling, and he has a right to a reasonable control of her actions, as he is account- able in many respects for her conduct. It is a sickly sensibility which holds that a man may not lay hands on his wife, even rudely if necessary, to prevent the commission of some unlawful or crim- inal purpose, or the use of a butcher's knife against a relative." ^ §1626. Conformity to Husband's Habits. — The ecclesiastical judges used often to speak of the wife's duty to conform to the husband's habits and tastes, so that slie could not complain of his peculiarities and eccentricities. The same duty, in reason, rests also on the husband as to the habits and tastes of the wife. Mu- tual conformity and assimilation are of the essence of the " one flesh " principle which the law has adopted from Scripture.* Yet there are limits to a wife's obligations in this respect ; for, if the husband has whims and caprices of a sort to endanger her health, she need not yield to them, but she may make them the ground of a suit for divorce.^ Whims less seriously affecting her will be otherwise regarded, as not putting her in danger sufficiently grave ; thus, — § 1627. Forbidding Church — Visits to Relatives. — Though it is an act of great unkindness and unreasonable oppression in a husband to forbid his wife to attend a particular church, of which she is a member ; ^ or to interdict all intercourse with her fam- 1 Gorman v. S. 42 Tex. 221, 223, opin- * 1 Bishop Mar. Women, § 35. ion by Moore, J. ^ Dysart ». Dysart, \ Rob Ec. 470, 2 1 Bishop Crim. Law, § 891 ; S. v, 472, 512 See Evans v. Evans, 1 Hag Craton, 6 Ire. 164. Con 35, 4 Eng. Ec. 310, 349. 3 Richards v. Richards, 1 Grant, Pa. " Lawrence v Lawrence, 3 Paige, 267. 889, 392, 674 CHAP. XLIX.] CRUELTY. § 1629 ily ; 1 or to prevent her from paying a visit to his own relatives ; ^ yet conduct like this is not alone a sufficient cause of divorce. It may in some circumstances tend to illustrate his temper ; and his legal right may be enforced in an illegal manner. In one case the wife pleaded that the husband had forbidden her to hold intercourse with her own family ; and Lord Stowell, " not without hesitation," admitted the article, observing : " There may be cir- cumstances that will justify that prohibition ; and the court could ill judge of the reasonableness of such an injunction. Though the wife may be very amiable, her connections may not be so, and there may be many reasons which would justify such exclusion." ^ So,— § 1628. Household Management. — Since the husband is the head of the family,'' the law permits him to manage the house- hold affairs. And to do it, and publicly prohibit his wife, is not alone the cruelty which authorizes divorce. But conduct of this sort may aggravate and give character to acts of cruelty proper, in which light it will be important. Lord Stowell puts the case even more mildly, thus : " I cannot call it cruelty if a gentle- man chooses to settle his weekly bills himself ; because I take it that a wife acts in this respect, not by any original right, but as the steward and as the representative of her husband. And if a man has but a moderate opinion of his wife's management, and is vain enough to have a better of his own ; if he does choose to take into his own hands the payment of the weekly bills, — I protest it does appear to me to be that kind of conduct with which no magistrate, ecclesiastical or civil, has any right to interfere."* § 1629. Marital Connection. — The husband may require his wife to occupy the same bed with himself. But her refusal of his embraces is not — or commonly is not — cruelty to him.® On the other hand, if he forces her it is not rape,^ while yet it is not con- duct approved by the law. If he abuses his right to her person by carrying it to an extent injurious to her health, and there is a 1 Neeld v. Neeld, 4 Hag. Ec. 263, 269. * Ante, § 1618. ^ D'Aguilar ii. D'Aguilar, I Hag. Ec. ^ Evans v. Evans, 1 Hag. Con. 35, 115, 773, 3 Eng. Ec. 329, 335. 116, 4 Eng. Ec. 310, 347 ; 1 Eras. Dom. 8 Waring v. Waring, 2 Hag. Con. 153, Eel. 460. 159, 2 Phillim. 132, 1 Eng. Ec. 210, 213. « Ante, § 1590; Cowles v. Cowles, 112 And see Shaw v. Shaw, 17 Conn. 189, 195 j Mass. 298. Enlton V. Fulton, 36 Missis. 517. ' 2 Bishop Crim. Law, § 1119. 675 § 1630 JUDICIAL DIVORCES. [book VII. reasonable apprehension that he will continue to do so, she may have a divorce for the cruelty.^ IV. Cruelty ly the Wife to the Husband. § 1630. General. — Causes both physical and mental render the infliction of cruelty by the wife on the husband less common than by him on her. Yet the law in England and in most of our States gives the same relief to a complaining husband as to a complain- ing wife.2 In some of them, the wife alone is entitled to this ""divorce.^ And in a general way the same cruelty will suffice, whichever party complains. Contrary whereto, — 1 Green, Ch. in Moores o. Moores, 1 C. E. Green, 275; English v. English, 12 C. E. Green, 579; Walsh a. Walsh, 61 Mich. 554; Melvin v. Melvin, 58 N. H. 569, 42 ,Am. R. 605. There is a Con- necticut case, decided by the majority of a divided court, which has never found a following. It is Shaw v. Shaw, 17 Conn. 189. The wife was in feeble health ; the husband, well and jealous; and besides inflicting much general abuse, he often compelled her to his embrace, against her remonstrance and her declaration that it injured her, at times when it was truly improper, unreasonable, and in fact inju- rious to her health. On two occasions, he even removed her by force from the bed of her daughter, to which she had retired, to his own. Her health being in jeopardy, and having suffered from this conduct, she left him and brought her snit for divorce. So the court found the facts to be ; also, that though she was in no danger of receiving other physical ill- treatment from him, " she had just reason to fear he would compel her to occupy the same bed with him, regardless of the con- sequences to her health." But even on these proofs the majority of the judges deemed her not entitled to the divorce, and refused it on the technical ground that sexual intercourse in marriage being lawful, he would be responsible for the excess only on committing it with knowl- edge of its injurious effects. But his knowledge was not shown, except by her claim of suffering in health from this cause. In reason, and so most judges 676 will look upon a case of this sort, when the wife claimed that she was injured by the husband's undue exercise of what was otherwise his right, and he saw her droop under the injury which the proofs estab- lished to be real and not feigned, and when it was admitted that even after this judi- cial investigation a return to cohabitation would subject her to a cpntiuuation of these inroads upon her health, it is diffi- cult to see how the technical right of hus- bands to do what will not injure their wives could give authority to this hus- band to kill his wife. As well might a father, indicted for killing his child by undue chastisement, say that when the boy complained his ribs were broken, he had no evidence of it, and when he broke the skuU by too heavy a blow it was only in the exercise of a paternal right. 2 Eurlonger v. Furlonger, 5 Notes Cas. 422 ; Kirkman v. Kirkman, 1 Hag. Con. 409 ; Waring v. Waring, 2 Phillim. 132, 1 Eng. Ec. 210; White f. White, 1 Swab. & T. 591 ; ante, § 1530, note; Ayl. Barer. 229; Onghton, tit. 193, § 18; Lynch v. Lynch, 33 Md. 328; Kempf v. Kempf, 34 Mo. 211 ; Jones v. Jones, 66 Pa. 494; Small V. Small, 57 Ind. 568. 8 New York. — In New York, the act of April 10, 1824, § 12, authorized a di- vorce from bed and board on prayer of the husband for the wife's cruel treat- ment, but in the Eevised Statutes of 1830 this remedy was given only to the wife. By accident, however, the earlier statute was not expressly repealed ; so it was held to remain in force. Perry v. Perry, CHAP. XLIX.J CRUELTY. § 163S § 1631. Husband to restrain Wife. — Chancellor Walworth ap- parently deemed that the husband cannot complain of any bad conduct in the wife which he could prevent by the exercise of his marital power. Instead of coming to the court for relief from such conduct, he should fight it out in pais. " It is not," said this learned judge, " sufficient to show a single act of violence on her part towards him, or even a series of such acts, so long as there is no reason to suppose that he will not be able to protect himself and family by a proper exercise of his marital power." But he may " establish such a continued course of bad conduct on the part of the wife, towards himself and those who are under his protection and care, as to satisfy the court that it is unsafe for him to cohabit or live with her." And he may include in his bill acts of violence and misconduct toward his children and other members of the family. ^ Now, in just reason, — § 1632. Relative Position and Strength. — Whether the hus- band or the wife is the complainant, the relative situation of the parties, and in some circumstances their comparative physical strength, may be important.^ And — § 1633. "Wife without Support. — Tile condition ill which the divorce will leave the wife can hardly fail in some instances to appeal strongly to the compassion of a merciful judge. Except in a few States where statutes have changed the rule of the un- written law, this divorce will leave the wife, whose entire means and the strength of whose better days may have enriched the husband, penniless and without ability to earn a livelihood. In view of this, in New York, Chancellor Walworth said : " It must therefore be a very strong case which will induce this court to grant a final separation on the application of the husband." ^ It is by the present writer believed to be competent for any court, certainly for one having equity powers, to accomplish substantial justice in these circumstances, by granting to the husband his di- vorce on condition of his restoring a reasonable amount of prop- erty to the wife.* 2 Barb. Ch. 311 ; Perry v. Perry, 2 Paige, See also Sheffield v. Sheffield, 3 Tex. 79 ; 501 ; Van Veghteu v. Van Veghten, 4 Byrne v. Byrne, 3 Tex. 336 ; De La Hay Johns. Ch. 501 ; McNamara v. McNamara, v. De La Hay, 21 111. 252. 2 Hilton, 547, 549. * In a modern English case, on a di- ^ Perry v. Perry, 1 Barb. Ch. 516. vorce for the wife's cruelty, there was an ^ Doyle V. Doyle, 26 Mo. 545, 546. application on her behalf for alimony. ' Palmer v. Palmer, 1 Paige, 276, 278. " But the court, in the absence of any 677 § 1635 JUDICIAL DIVORCES. [bOOK VII. § 1634. Further of restraining "Wife. — In reason, no wide ap- plication siiould be given to the suggestion of restraining the wife by the husband's " marital power," instead of permitting him a divorce. He is not always the weaker pdrty physically, and always she has the means of inflicting injury on his person or health without measuring strength with him. If he is the stronger, shall he whip her ? We have seen that he must not.^ Shall he im- prison her ? The availability of this right is questionable.^ Then, is a physical squabble with a woman a manly sport, which the law should not only encourage but command ? No great difference, it is believed, should be made by the courts in estimating a case of cruelty, whether the complaint comes from the husband or from the wife. If often she is more lovable and amiable than he, she is not always. When she is not, but is even worse for her sex, the court pays no compliment to woman by permitting this circum- stance to shield her from the consequences of unsexing herself.* Hence, — § 1635. The Better View — is believed to be that entertained by the English Court under the following facts, stated by Sir J. P. Wilde : " The cohabitation of the parties has been very long ; and there is a large family, many of them now grown up. The great and unrestrained violence of the wife, her irritability on all, even the slightest occasions, her bursts of unprovoked ill-temper, and the abuse she habitually heaped on her husband, were fully proved; But she went further. She ventured from time to time to lift lier hand against him. She added personal outrage to the degradation of foul language. Emboldened by a policy of passive resistance, which during the last fifteen years he had adopted from religious motives, she sought to rule his conduct by threats of personal attack ; and, finally, she thrust herself before him on the steps of a public chapel, the service of which he was attending against her will, assailed him with abuse and blows, and as the sole refuge from an unseemly struggle drove him with ignominy home. The excitement caused by this unwomanly deed, and perhaps still more the nervous shock sustained by him in the necessary effort of self- restraint, induced a fit, and much mental and bodily suffering." precedent in support of the application, l Ante, § 1619-1621. refused to make any order." White v. 2 Ante, § 1622-1625. White, 1 Swab. & T. 591, 594. But this ^ And see Gholston v. Gholston, 31 Ga. is oyerruled. See post, § 1635, note. 625. 678 CHAP. XLIX.] CEUELTY. § 1638- Here, it is perceived, there was no attempt by the husband to ex- ercise physical restraint, which it may be supposed would have been effectual. Moreover, said the judge : " I do not believe that his wife ever intended or is likely to do him serious harm by per- sonal violence." Yet it was not deemed by this learned person to be the duty of the husband to measure strength with the wife, or, declining, to abstain from seeking the protection of the court. " Where the woman is the assailant," it was observed, " many a man may submit to the outrage of a blow, who would defend him- self from real injury if imminent." And on a consideration of the whole case, the court granted the husband the separation prayed.^ Again, — § 1636. Charge of Adultery. — We have seen how a husband's maliciously charging his wife with adultery is regarded in her divorce suit for his cruelty .^ In reason, a wife's like accusation against the husband should be no less available to him in his suit for her cruelty, and so the authorities are understood to be.^ And — § 1637. Entrap Husband. — It has been deemed cruelty justify- ing a divorce for the wife to attempt to entrap the husband into the appearance of having committed adultery.* On the other hand, — § 1638. Petty. — The wife's petty annoyances of the husband, such as fault-finding, disparaging his common-sense, taste, and judgment, and other like complainings of him ; ^ her three-months' absence from home to learn painting, without his consent ; ^ her occasionally addressing him angrily and disrespectfully, and for a few days refusing to sleep in the same room with him,^ — have severally been held inadequate cruelty for divorce in favor of the husband. It would be the same were the wife the complainant on the like grounds. 1 Prichard v. Prichard, 3 Swab. & T. E. 732 ; Densmore v. Densmore, 6 Mackey, 523. The learned judge, however, held 544, 546, 547; Holyoke e. Holyoke, 78 that the husband In this case should be Me. 404 ; Whitmore v. Whitmore, 49 required to make some provision for the Mich. 417; Carpenter v. Carpenter, 30 wife; and overruled White v. White, I Kan. 712, 46 Am. K. 108; McAUster u. Swab. & T. 591, and Dart v. Dart, 3 McAlister, 71 Tex. 695. Swab. & T. 208, in which it had been * Uhlmann u. Uhlmann, 17 Abb. N. held that this could not be done. "I Cas. 236. think," he said, " if there is no prece- ^ Johnson v. Johnson, 49 Mich. 639. dent, I ought to make one." 6 Smith v. Smith, 62 Cal. 466. ^ Ante, § 1569, 1570. ' Scott v. Scott, 61 Tex. 119. * Kelly V. Kelly, 18 Nev. 49, 51 Am. 679 § 1642 JUDICIAL DIVORCES. [BOOK YU. § 1639. " Endanger Life." — Under a statute authorizing divorce for ill-treatment dangerous to the life,^ a husband's allegation, sustained on demurrer, was in substance that his wife had shame- fully treated him by beating and bruising him without just cause ; that she had at divers times declared it would be right for her to put poison into his food, and she should be glad if he were dead ; that his occupation required him to have at all times cer- tain poisons about his house ; and that he had been compelled to exercise the greatest caution to keep them out of her way, fearing she would get possession of them and endeavor to poison him.^ Y. The Effect of III Conduct in the Complaining Party. § 1640. The Several Defences, — available in all divorce suits, are for the second volume. The doctrine of this sub-title is dif- ferent ; namely, — § 1641. Probable Consequence. — Where the defendant's cruelty is the natural and probable consequence of matrimonial ill con- duct in the plaintiff, the divorce will not be granted. A wife's " remedy," in such a case, " is in her own power. She has only to change her, conduct ; otherwise the wife would have nothing to do but to misconduct herself, provoke the ill-treatment, and then complain." ^ Within this doctrine, — § 1642. Mutual Contest — Under Provocation. — Violence in- flicted in a mutual contest, or ordinarily when the party com- plaining provoked it,* is no cause for judicial interference.^ For example, a wife refused to surrender to her husband some keys which he had the right to possess, and he undertook to wrest 1 Ante, § 1615. Hughes v. Hughes, Law Eep. 1 P. & M. 2 Beebe v. Beebe, 10 Iowa, 133. 219. And see Lalande v. Jore, 5 La. An. s Waring v. Waring, 2 Phillim. 132, 32; Bedell !). Bedell, 1 Johns. Ch. 604; 133, 1 Eng. Ec. 210, 211; Moulton v. Devaismes v. Devaismes, 3 Code R. 124, Moulton, 2 Barb. Ch. 309 ; Poor v. Poor, 3 Am. Law Jour. n. s. 279. 8 N. H. 307, 29 Am. D. 664 ; Anonymous, * Peavey v. Peavey, 76 Iowa, 443 ; 4 Des. 94 ; Daiger v. Daiger, 2 Md. Ch. Machado v. Bonet, 39 La. An. 475 ; Tay- 335; Sltinner v. Skinner, 5 Wis. 449; lor u. Taylor, 1 1 Or. 303. Richards v. Richards, 37 Pa. 225, 228 ; 6 Rumball u. Rumball, Poynter Mar. Johnson v. Johnson, 14 Cal. 459, 460 ; & Div. 237, note ; Dysart v. Dysart, 1 "Von Glahn v. Von Glahn, 46 111. 134; Rob. Ec. 106, 123; Whaley w. Wh'aley, 68 Reed v. Reed, 4 Nev. 395 ; Harper v. Iowa, 647 ; German v. German, 57 Mich. Harper, 29 Mo. 301 ; Knight v. Knight, 256; Potter v. Potter, 75 Iowa, 211 ; Cas- 31 Iowa, 451; Childs v. Childs, 49 Md. tanedo w. Eortier, 34 La. An. 135; Maben 509 ; Boyd v. Boyd, Harper Ch. 144 ; v. Maben, 72 Iowa, 658. 680 CHAP. XLIX.J CRUELTT. § 1645 them from her. In the scuffle, she went against the wall and bruised her arm and breast. But she was adjudged not entitled to a divorce.! Still, — § 1643. Reform. — The path to reform is always open. So that after a wife has mended her conduct, if the husband is guilty of cruelty the court will interpose.^ Or — § 1644. Excessive Violence. — Should the husband's violence, though in return for the wife's misconduct, be " wholly unjustified by the provocation, and quite out of proportion to the offence, it might still be the duty of the court to interfere judicially." For example, if it were proved, as alleged in one case, that he had attempted to burn her alive, she might probably be entitled to a divorce though herself guilty of gross misbehavior.^ There is a cruelty, said Lord Slowell, which " cannot be justified by any misconduct. . . . Though misconduct may authorize a husband in restraining a wife of her personal liberty, yet no misconduct of hers could authorize him in occasioning a premature delivery, or refusing her the use of common air." * And there are various American cases wherein the wife has been granted her divorce because, though herself not free from blame, the husband had visited her ill conduct with a greatly disproportionate return.^ It was in one case laid down that if he has repeatedly beaten her, whatever the provocation from her in words and actions, she may have this remedy.^ An illustrative instance is — § 1645. Beating and Kicking Pregnant Wife. — We have from Sir John Nicholl the following : " Besides the endurance of many privations during the severe winter of 1813-14, when in a state of advanced pregnancy, an act of personal violence occurs which is thus deposed to by Mackenzie, on the seventh article : ' About a month before Lady Westmeath's confinement, Lord Westmeath 1 Oliver v. Oliver, ] Hag. Con. 361, 4 em, 3 Grant, TJ. C. Ch. 431 ; Jackson v. Eng. Ec. 429, 433, 434. Jackson, 8 Grant, XJ. C. Ch. 499 ; Eiden- 2 Waring v. Waring, 2 Phillim. 132, muller v. Eidenniuller, 37 Cal. 364 ; Shores 133, 1 Eng. Ec. 210, 211; Best v. Best, v. Shores, 23 Ind. 546; Marsh v. Marsh, 1 Add. Ec. 411, 423, 2 Eng. Ec. 158, 163; 64 Iowa, 667; Vocacek v. Vocacek, 16 Skinner v. Skinner, 5 Wis. 449. Neb. 453; Boeck v. Boeck, 16 Neb. 196; 3 Best y. Best, 1 Add. Ec. 411,423, 2 Machado v. Bonet, 39 La. An. 475 ; Segel- Eng. Ec. 158, 163, 164. baurn v. Segelbaum, 39 Minn. 258. And * Evans o. Evans, 1 Hag. Con. 35, 4 see Thomas v. Tailleu, 13 La. An. 127; Eng. Ec. 310, 316; s. p. Waring n. War- Ghokton v. Gholston,31 Ga. 625; Gordon ing, 2 Phillim. 132, 1 Eng. Ec. 210. v. Gordon, 48 Pa. 226. '' King w. King, 28 Ala. 315; Rutledge « Hawkins w. Hawkins, 65 Md. 104. V. Eutledge, 5 Sneed, 554 ; Severn v. Sev- And see Wessels v. Wessels, 28 111. Ap. 253. 681 § 1646 JUDICIAL DIVORCES. [BOOK VII. called deponent up about four o'clock one morning, to go to Lady Westmeath. When deponent went, Lady Westmeath was lying in bed, and Lord Westmeath standing in his dressing-gown. Depo- nent asked Lady Westmeath if she was taken ill ; she said no ; but that Lord Delyin [the husband as known before he became Marquis of Westmeath] had been beating her, and had kicked her in the side ; and she complained of being in pain from it. Lord Westmeath then said, " Emily, you provoked me to do it." Lady Westmeath looked at him, but said nothing to him; but asked deponent why she had come. Deponent said Lord Delvin had called her. Lady Westmeath said she might go to her own room again. Lord Westmeath appeared by his manner, when he called her, to be frightened.' An admission of the truth of the charge is here, then, necessarily implied from his observation, ' You pro- voked me to do it.' It is true that when he has done it he him- self is frightened and calls the maid ; but he in effect admits that her statement is correct. How ungovernable must be the passions of a husband, who, scarcely a month before his wife's confinement of her first child, can be hurried away to such an outrage ! It requires no definition of cruelty to pronounce this to be an act of aggravated cruelty. ' You provoked me to do it;' no provocation could justify or palliate it."^ Still, — § 1646. Less Reprehensible. — In a middle class of cases, where the party complained of proceeded less far, if the complaining wife was greatly in fault she cannot have her divorce though her husband is not justifiable and an indictment against him for the battery might be maintained.^ In the words of Lord Stowell, her " own conduct does not give her a title to complain ; " ^ of Dr. Lushington, if she " can insure her own safety by lawful obe- dience and by proper self-command, she has no right to come here, for this court affords its aid only where the necessity for its aid is absolutely proved." * And in a Louisiana case, wherein a wife whose conduct had been outrageous was held not entitled 1 "Westmeath v. Westmeath, 2 Hag. 144, 1 Eng. Ec. 210, 216; Taylor w. Tay- Ec. Supp. 1, 79, 4 Eng. Ec. 238, 274. lor, 2 Lee, 172, 6 Eng. Eo. 81 ; Kimball v. 2 Childs V. Childs, 49 Md. 509 ; Coles Kimball, 13 N. H. 222 ; Poor v. Poor, 8 V. Coles, 5 Stew. Ch. 547 ; Begbie v. Beg- N. H. 307, 29 Am. D. 664. The last case bie, 3 Halst. Ch. 98 ; Devaismes v. De- is both able and readable. yaismes, 3 Code Reporter, 124, 3 Am. ^ Dysart v. Dysart, 1 Rob. Ec. 106, Law Jour. 279. See Grossi v. Gross!, Law 140. This case was appealed to the Rep. 3 P. & M. 118. Arches Court, where Sir Herbert Jenner * Waring i;. Waring, 2 Phillim. 132, Eust overruled Br. Lushington's decision. 682 CHAP. XLIX.] CRUELTY. § 1647 to a separation though her husband ill-treated her, the court ob- served that the law " is made for the relief of the oppressed party, not for interfering in quarrels where both parties commit recip- rocal excesses and outrages." ^ Therefore violeuce in a mutual quarrel, wherein one party suffers as much as the other, is not cruelty .2 And still " there are," said Goldthwaite, J., " some acts of violence, such as involve danger to life, limb, or health, — acts which render it absolutely necessary for the safety of the wife that she should be separated from the husband, — and when con- duct of this character is proved, it admits of no palliation or ex- cuse if intentionally done." ^ The court, in considering to which of the two classes a case belongs, should not so much ask what forbearance the law of Christianity required as what naturally and probably a person with the imperfections common to human- ity would be prompted to exercise.* § 1647. In Brief, — though a wife's ill conduct in a measure contributed to what she complains of in her husband, and his did not reach the extreme point, still if his cruelty was very aggra- vated it will entitle her to a divorce;^ while, on the other hand, she cannot ordinarily complain with effect if herself materially in fault. Yet the more unexceptionable her conduct, the more meri- torious her cause.® And the greater her husband's misbehavior, the less will her cause be embarrassed by her own. No merely ideal perfection is to be required of either. " The criterion by which, in human tribunals, the conduct of human beings is to be estimated," is not, it has been said, " the rule either of ideal per- fection or of occasional excellence, but . . . that standard which, being attainable by the various classes to which it is to be applied, is sufficiently high to insure the preservation and promotion of the morals and good order of society." ^ The court will look into But I do not understand that there was * Fleytas v. Pigneguy, 9 La. 419. See any general dissent from the principles of also Boyd v. Boyd, Harper, 144 ; Mayhugh law laid down, though an expression im- v. Mayhugh, 7 B. Monr. 424; Watkinson mediately preceding the one quoted in the v. Watkinson, 12 B. Monr. 210. text was disapproved. lb. 512. A further ^ See Doyle v. Doyle, 26 Mo. 545, 547. appeal was taken, but it was abandoned " Holden v. Holden, 1 Hag. Con. 453 ; on a compromise between the parties. lb. Dysart v. Dysart, 1 Rob. Ec. 106, 133, 543; Wadd. Dig. 155. 134; Taylor v. Taylor, 4 Des. 167; ' Durand v. Her Husband, 4 Mart. La. Headen v. Headen, 15 La. 61 ; Jones v. 174, Derbigny, J. Jones, Wright, 155; Griffin a. GrifiBn, 8 " Soper V. Soper, 29 Mich. 305. B. Monr. 120. ' David V. David, 27 Ala. 222, 224. ^ Marshall, C. J. in Mayhugh v. May- hugh, 7 B. Monr. 424, 428. 683 § 1649 JUDICIAL DIVORCES. [bOOK VII. the origin of the quarrels, to see with which party the blame com- menced ; ' and if the complaining wife's misconduct was provoked by the husband, this will materially weigh in her favor.^ Or if she has fallen into any impropriety, though not criminal, and her husband's jealousy is excited, she should use every reasonable effort to soothe his excitement and remove its cause.^ And if, though she is wholly blameless, her husband suspects her of adul- tery and accuses her of it, she should not by her conduct increase his suspicions, but strive to allay them.* VI. The Distinction between the Law and the Evidence. § 1648. Difficulties. — This question is embarrassed by reason that formerly these causes were tried by the court without a jury, and in a part of our States they continue to be ; in consequence whereof we have not many cases wherein it was important to draw the partition line between law and fact. Added to which, we have the very special nature of this matrimonial offence ; namely, the ill conduct of the party complained of has a double aspect, not common in other classes of cases. The more aggravated parts of it are alleged and contemplated as facts rather than as evi- dence, and are known as acts of cruelty, to prove which the evi- dence is directed ; thereupon they perform the second office of being themselves evidence to the ultimate question of inquiry whether or not a continuance of the cohabitation would be physi- cally safe to the complaining party. Still this mixture of things, when truly comprehended, is not destructive of the distinction which we are seeking.. And in reason the rule is that — § 1649. Rule. — The nature and extent of the acts of cruelty required in a particular case, and the nature and extent of the danger to be apprehended from them should cohabitation be re- sumed, are questions of law for the court; whether thdse acts transpired, and whether the danger exists, are questions of fact for the jury. Practically, as in multitudes of analogous cases in all departments of our jurisprudence, the inquiry becomes a mixed one of law and fact ; that is, the judge tells the jury what is the 1 Mayhugh v. Mayliugh, supra; War- ' Mayhugh v. Mayhugh, supra; An- ing V. Waring, 2 Phillim. 132, 1 Eng. Ec. thouy v. Anthony, 1 Swab. & T. 594. 210, 212. * Harper v. Harper, 29 Mo. 301. 2 Graecen i>. Graecen, 1 Green Ch. 459 ; Bascom v. Bascom, Wright, 632. 684 CHAP. XLIX.] CRUELTY. § 1652 law upon the several conclusions of fact which the evidence tends to e'stablish, and tlie jury decides what one of those conclusions has been sustained in proof. Agreeably to this distinction, — § 1650. Judicially stated. — It was laid down in New Hamp- shire that a rule determining what conduct constitutes cruelty as a cause of divorce is of law for the court, and whether or not the evidence shows such conduct is of fact for the jury.^ Where the evidence, assuming it to be true, is not legally sufficient, the court may so decide as a question of law.^ § 1651. Cresswell'B Distinction. — Not greatly differing from the foregoing. Sir C. Cresswell in an English case stated as fol- lows : " I apprehend that in such a case as this I shall be bound to direct the jury what acts constitute legal cruelty, and they will have to find whether the acts done are cruelty or not," as well as find whether or not the alleged acts were done.^ § 1652. The Doctrine of this Chapter restated. Matrimony contemplates a cohabiting or dwelling together of the parties, and thereon a mutual performance of the correlate duties which the law superinduces upon the marriage. And while one does his part, the other is not authorized to withdraw and live in separation. But neither the husband nor the wife can continue the cohabitation, with the due discharge of matrimonial duties, if in physical peril from the other. And whenever by reason of the other's fault the peril exists, the party put in peril is entitled to be judicially separated or divorced from the other. The creating of the peril, in whatever manner done, whether by blows, by threats, or by conduct producing mental anguish to the detriment of the physical health, or by any other means, is termed cruelty. And as the law does not concern itself about trifles, the cruelty must be of a magnitude serious, so as to be commensurate with the serious nature of suspending or dissolving the marriage relation. It may proceed either from the husband or from the wife. In the details of this doctrine, the particular character of marriage, the law's idea of the mutual rights and duties of hus- band and wife, the health of the respective parties, and all analo- gous things are to be taken into the account. 1 Janvrin v. Janvrin, 58 N. H. 144. ' Tomkins u. Tonkins, 1 Swab. & T. = Gordon v. Gordon, 48 Pa. 226. 168, 169. 685 § 1656 JUDICIAL DIVORCES. [BOOK VII CHAPTER L. DESERTION. §1653,1654. Introduction. 1655-1663. General Doctrine. 1664-1668. Differing Terras of Statutes. 1669-1686. Cessation of Cohabitation. 1687-1734. Intent to Desert and Acts accompanying. 1 735-1 770. The Justification. 1771-1776. Continuity of the Desertion. 1777. Distinction between Law and Evidence. 1778. Doctrine of Chapter restated. § 1653. Elsewhere. — The pleading, practice, and evidence are for the second volume. § 1654. How Chapter divided. — "We shall consider, I. The Gen- eral Doctrine ; II. The Differing Terms of the Statutes ; III. The Cessation of the Cohabitation ; IV. The Intent to Desert and the Acts accompanying ; V. The Justification ; VI. The Continuity of the Desertion ; VII. The Distinction between the Law and the Evidence. I. The General Doctrine. § 1655. Desertion and Death compared. — By the common opin- ion of mankind, from which only a small minority dissent, death is but a separation of disembodied from embodied people. Our friend whom we call dead has but stepped a little way from us ; and, as not a few deem, he is still to us a ministering angel, though not in all respects with the same power of rendering us service as before. On the other hand, the wife who has irrevo- cably deserted her husband never hereafter will be so much as a ministering angel to him; but as to him, and as to the matri- monial office in the social system, she has more than died, and the marriage is more completely dissolved than it ordinarily is by the natural death of the wife. And still — § 1656. Social Order. — The law is the conservator of social order. Viewing it as such, no considerate and well-disposed per- 686 CHAP. L.] DESERTION. § 1658 son will act contrary to its regulations. If a husband dies, nature has provided no means for bringing him to life, and all know that the marriage has irrevocably terminated. If he deserts his wife, however irrevocably, the public sees only a cessation of the cohab- itation for the present time; it knows nothing of the rest; the law has taken cognizance of nothing, and the public order will be vio- lated should either of the parties remarry. It is as though the man had committed murder, which by the law of nature as well as that of the land renders his life forfeit ; it would still be a violation of the necessary rules of public order for a neighbor to seize him and bury him as though dead, while the law had taken no steps, and no judgment against him had been rendered. Pre- cisely in like manner an irrevocable desertion snaps the internal vinculum of the marriage, but nobody has the right to act upon this result until it has been declared by a judgment of divorce. Further as to the law, — § 1657. Opinion — Dogma. — Marriage having been always re- garded as a semi-religious affair, and even by a large proportion of the people as a sacrament of the Church, dogma has so stepped in and blended with opinion that it is difficult to say whether or not the statement just made has the sanction of the common judg- ment of mankind. More exactly, opinion can be scarcely said to have spoken on the subject. The true name of the voice which we mostly hear is ecclesiastical dogma. The Roman Catholic Church accepts neither adultery nor desertion as ground of divorce other- wise than through the sanction of the Pope, because marriage is its sacrament, wherewith unhallowed hands may not interfere ; and Protestants, who do not deem it a sacrament, are in some measure divided as to the scriptural sufficiency of desertion for dissolution, though the greater number deem it adequate. But the law of our several States takes no cognizance of dogma, or of the interpretations of the Scriptures made by any particular sect.i So that in most of our States the law follows nature by making desertion, when irrevocable, and when a time which it approves has been given to the deserted party for reflection and repentance, ground for dissolving the marriage.^ § 1658. In Scotland, — ever since the Reformation, desertion has been deemed a just cause for marriage dissolution.^ And in 1 Ante, § 42-45. 8 j pras. Dom. Eel. 654, 655, 677, et " Ante, § 46, 50, 53, 64, 687 § 1658 JUDICIAL DIVORCES. [BOOK VII. 1573, a statute somewhat differing in its forms of expression from our ordinary American ones was enacted, — providing, that if either the husband or wife " divertis fra uther's companie without ane reasonable cause alledged or reduced befoir an judge, and re- mainis in their malicious obstinacie be the space of foure zeires, and in the meane time refusis all privie admonitions, the husband of the wife, or the wife of the husband, for dew adherence : That then the husband or the wife sail call and persew the obstinate person offender befoir the Judge Ordinar for adherence. And in case no sufficient causes be alledged quhairfoir na adherence suld be, but that the sentence proceed is against the offender refusand to obey the samin : The husband or the wife sail meene themselves to the superior magistrate, videlicet the Lords of Session, and sail obteine letters in the four formes, conforme to the sentence of adherence : Quhilk charge being contemned, and therefoir being denunced rebel and put to the home, then the husband or the wife to sute the spiritual jurisdiction and power, and require the lauchful archbishop, bishop, or superintendant of the countrie quhair the offender remaines, to direct privie admonitiones to the said offender, admonisching him or her, as befoir, for adherence ; Quhilkes admonitiones gif he or she contemptuously disobeys, that archbishop, bishop, or superintendant to direct charges to the minister of that parochin quhair the offender remaines ; or, in case there be nane, or that the minister will not execute, to the minister of the next adjecent kirk theirto, Qulia sail proceede against the said offender with publick admonitiones, and gif they be contemned, to the sentence of excommunication — Quhilk anis being pronounced, the malicious and obstinat defection of the partie offender to be ane sufficient cause of divorce, and the said partie offender to tyne and lose their tocher and donationes propter nuptias." Fraser says that " the only particulars in this statute now in desuetude are the letters of four forms, which have been superseded by letters of horning, and presbyteries have come in room of the bishop." ^ Later, there has been some legis- lation as to conjugal rights in Scotland, but not essentially chang- ing the law of the present subject.^ seq. , Shelf. Mar. & Div. 368; Brewster Act of 1861," 24 & 25 Vict. c. 86 Lou- Encyc. art. Divorce. isiana. — This Scotch form has been in 1 1 Eras. Dom. Kel. 680, 681. some degree followed in Louisiana. Per- 2 The " Conjugal Rights Amendment kins v. Potts, 8 La. An. 14 ; MuUer v. 688 CHAP. L.J DESEKTION. § 1661 § 1659. In England, — we saw in a preceding chapter,^ the Ref- ormation is understood to have wrought a similar change of opinion, but it was not carried into the law. And when, in 1857, divorce jurisdiction was given to a lay tribunal,^ desertion neither of the husband nor of the wife was made ground to dissolve the marriage ; and the only effect permitted it for this purpose was, that while the husband's adultery alone does not entitle the wife to a dissolution, it does when " coupled with desertion without reasonable excuse for two years or upwards." ^ Hence, — § 1660. Our Unwritten Law, — as brought from England by our forefathers, does not permit divorce for desertion. So that our statutes on the subject are original provisions.* But — § 1661. Restitution of Conjugal Rights. — There is some reason to deem that the English law concerning the restitution of conju- gal rights may be regarded, in a semi-theoretical sense, as per- taining to our unwritten law. But we never had in any colony or State a tribunal with jurisdiction to administer it,^ so that within the explanations of a preceding chapter ^ it has always remained in practical abeyance. Yet the principles on which the law of this subject was in England administered appear to have some appli- cation in our divorce suit for desertion. When our country was settled, this proceeding constituted a part of the jurisdiction of the ecclesiastical courts. It was in personam, and by it the deserting party was compelled to return to cohabitation, if the other, says Blackstone, " be weak enough to desire it." " It was available eitlier to the husband or the wife. On the wife, for example, establishing her claim, there was a decree that the husband re- ceive her back, and likewise treat her with conjugal affection ; and he would not be discharged from the suit until he had complied with both branches of the decree.^ Imprisonment followed diso- Hilton, 13 La. An. 1, 71 Am. D. 504; the wife on the ground of adultery or Harman v. McLeland, 16 La. 26; Bien- cruelty, or desertion without cause for vena v. Her Husband, 14 La. An. 386 ; two years and upwards." Merrill v. Flint, 28 La. An. 194; Blanch- * Ante, § 1475, 1476. ard V. Baillieux, 37 La. An. 127. 6 Ante, § 69. And see Cruger v. 1 Ante, § 1496. Douglas, 4 Edw. Ch. 433, 506. = Ante, § 153 and note. « Ante, § 115-149. 3 20 & 21 Vict. c. 85, § 27. By § 16, '3 Bl. Com. 94; Scott v. Scott, 4 "a sentence of judicial separation (which Swab. & T. 113. And see ante, § 69, 70. shall have the effect of a divorce a mensa 8 Q{\\ y. Qju^ cited in Orme v. Orme, et thoro under the existing law, and such 2 Add. Ec. 382, 2 Eng. Ec. 354, 355 ; other legal effect as herein mentioned) Evans v. Evans, 1 Hag. Con. 35, 4 Eng. may be obtained either by the husband or Ec. 310, 349. VOL. I. — 44 689 § 1664 JUDICIAL DIVORCES. [BOOK VII. bedience, and in general the court could release him only on his obeying.^ In other connections, we have seen something of what is the later law of England on the subject.^ Now, — § 1662. Desertion defined. — In the nature of matrimony, and in harmony with the established principles of our jurisprudence, desertion as a matrimonial offence is the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other.^ It has the following — § 1663. Elements. — Its affirmative natural elements are two, — the cohabitation ended, and the offending party's intent to desert.* The statute creates a third affirmative element, — the lapse of a defined period of time. Negatively, it must be without legal justi- fication, and without a breach of the continuity wliicli the statute renders essential. Statutes in special terms may create modifica- tions of these propositions, but ours do not generally ; thus, — II. The Differing Terms of the Statutes. § 1664. Effect of Interpretation. — Statutes unlike in phraseol- ogy, and to the casual view dissimilar in meaning, are often when interpreted found to be identical in their results in law. We saw something of this in connection with the cruelty statutes.^ And it is so with various differently worded enactments making deser- tion a ground of divorce. For example, a clause providing divorce for desertion without justifiable cause does not differ from one giving this remedy simply for desertion ; for when the latter is 1 Barlee u. Barlee, 1 Add. Ec. 301. Burroughs, 2 Swab. & T. 303, 544; Scott For special circumstances in which, by i;. Scott, 4 Swab. & T. 113; Anquez v. the aid of certain English statutes, the Anquez, Law Rep. 1 P. & M. 176; Black- husband was discharged from imprison- borne ». Blackborne, Law Rep. 1 P. & M. ment without obedience to the original 563 ; Crothers v. Crothers, Law Rep. 1 P. sentence, see Lakin v. Lakin, 1 Spinks, & M. 568 ; Miller v. Miller, Law Rep. 2 274. By 47 & 48 Vict. c. 68, the decree P. & M. 13, 54 ; A. v. A. Law Rep. 3 P. for return to cohabitation ceased to be & M. 230 ; Stanes v. Stanes, 3 P. D. 42. enforceable by attachment. Weldon v. ^ Sisemore o. Sisemore, 17 Or. 542 ; Weldon, 10 P. D. 72. Benkert u. Benkert, 32 Cal. 467; Orr v. 2 Ante, § 69, 153, note; Weldon v. Orr, 8 Bush, 156; Besch «. Besch, 27 Tex. Weldon, supra; Bigwood v. Bigwood, 13 390; Kestler v. Kestler, 4 Stew. Ch. 197; P. D. 89; Field v. Field, 14 P. D. 26; Thorpe u. Thorpe, 9 R. L 57; Meldowney Smith V. Smith, 15 P. D. 11 ; Hayward v. Meldowney, 12 C. E. Green, 328. V. Hayward, 1 Swab. & T. 81 ; 'Hope * Post, § 1670. V. Hope, 1 Swab. & T. 94; Sopwith v. « Ante, § 1534. Sopwith, 2 Swab. & T. 160; Burroughs v. 690 CHAP. L.] DESERTION. § 1665 interpreted by the unwritten rule,i it is seen not to apply to a blameless going away ; that is, one for justifiable cause. And a provision giving this remedy for wilful desertion is an equivalent for the same without the word " wilful ; " because by the unwritten rule that would not be desertion to which the will did not consent. Further to illustrate, — §1665. Differing Phrases with One Meaning. — Not' inquiring what are the latest forms of the statutory expression in any State, but conscious that in nearly every State they are continually shift- ing, let us call to mind some which have heretofore received judicial interpretation. Thus, the several expressions " wilful, con- tinued, and obstinate desertion for the space of three years ; " ^ " wilful, obstmate, and continued desertion by either party for the term of a year ; " ^ " wilful desertion for three years, with total neglect of duty by the other party ; " * " when either of the parties shall have been wilfully absent from the other for three years ; " ^ when either party " wilfully deserts " the other, " and absents him- self without a reasonable cause for the space of one year ; " ^ when either is chargeable with "wilful and malicious^ desertion, and absence from the habitation of the other, without a reasonable cause, for and during the term and space of two years ; " ^ " when either party has absented himself or herself, without a reasonable cause, for the space of two years ; " * " when either party without sufficient cause, and without consent of the otlier, shall have abandoned such other, and refused for three years to cohabit with such other;"'" "wilful and continued desertion" for three years;'' " wilful desertion by cither party for the period of two years," '^ — are practically alike in effect, except as to time, and are sub- stantial equivalents for the single word " desertion." ^ If there are slight differences, they are scarcely perceptible in the law ; though in the forms of the pleadings the particular terms of the ' Ante, § 164, ,165, 1475, 1476. 1 Parsons, 329; IngersoU v. IngersoU, 49 2 Fulton V. Fulton, 36 Missis. 517; Pa. 249, 88 Am. D. 500. Cook «. Cook, 2 Beasley, 263. See San- » Freeland v. Freelaud, 19 Mo. 354. ders V. Sanders, 2 Stew. Ch. 410. i" Payson v. Payson, 34 N. H. 518. And 3 Thompson's Digest, Florida, p. 223. see Davis v. Davis, 37 N. H. 191 ; James * Connecticut U. S. of 1849, c. 2, § 10. v. James, 58 N. H. 266; Bailey v. Bailey, « Swan's Stat, of 1840, Ohio, c. 40, § 1. 21 Grat. 43. 8 Code of Iowa, of 1851, p. 223 ; Doug- " Word v. Word, 29 Ga. 281. la«s V. Douglass, 31 Iowa, 421. ^ Benkert v. Benkert, 32 Cal. 467. ' Post, § 1668. " And see Hanson v. South Scituate, ' Pennsylvania Stat, of March 13, 1 81 5, 115 Mass. 336. Dnnlop's Laws, p. 303 ; Butler v. Butler, ,691 § 1668 JUDICIAL DIVORCES. [BOOK VII. statutes must, as we shall see in the second volume, be regarded. The names of the several States are not here mentioned, though they are discoverable in the notes ; for, in the frequent revis- ions of the statutes, the terms are constantly being changed, so that the practitioner is safe only on consulting his own statute- books of the date when the dereliction in controversy occurred.^ Still,— . §1666. Different Effect — (Not "making Provision"). — We occasionally meet with a statute the effect whereof is somewhat different ; as, for example, where, in the words of the report, the cause of divorce was " the willing absence of the husband from the wife for three years together, without making suitable pro- vision for her support," she was required to show his ability.^ Again, — § 1667. " utter." — The term " utter desertion " has been deemed in some circumstances to have a wider effect than " de- sertion" alone.^ So, — § 1668. "Malicious." — The word "malicious," employed in con- nection with " desertion," as in the Scotch statute, — " remainis in their malicious obstinacie be the space of foure zeires,"* ap- pears to have some effect, though not great. In the criminal law, malice " is never understood to denote general malevo- lence, or unkindness of heart, or enmity toward a particular individual ; but it signifies rather the intent from which flows any unlawful and injurious act, committed without legal justi- fication." 5 It does not require enmity to a person injured ; as, a man may be guilty of the " malice aforethought " of murder, and be hung for it, without the slightest ill-will to the person he kills.^ In harmony with which interpretation, when a husband in Scotland, leaving his wife and country, went to Australia to evade justice, she was permitted a divorce for this desertion.^ Yet in the words of Lord Mure, " as this is a ground of divorce established by act of Parliament, it is neces- ■^ See also, as to various terms, Becket ' Stewart v. Stewart, 78 Me. 548, 57 V. Becket, 17 B. Monr. 370; Watkinson Am. R. 822. V. Watkinson, 12 B. Monr. 210; Brown v. * Ante, § 1658. Brown, 5 Gill, 249 ; Brown v. Brown, 2 * 1 Bishop Crim. Law, § 429. Md. Ch. 316; Levering r. Levering, 16 » 2 lb. § 682, 688, 691, 694. Md. 213 ; Majors v. Majors, 1 Tenn. Cli. ' Muir v. Muir, 6 Scotch Sess. Cas. 4th 264 ; Lanier v. Lanier, 5 Heisk. 462. ser. 1353. ' .James v. James, 58 N. H. 266 ; Davis !>. Davis, 37 N. H. 191. 692 CHAP. L.J DESERTION. § 1668 sary that it should be very distinctly proved (1) that the defender left her husband for the purpose of desertion ; and (2) that she has remained 'in malicious obstinacy' for the statutory period." So that where a man allowed his wife to live apart from him with no serious effort to induce her to return, her malicious obstinacy was held not to be sufficiently shown.^ And in Pennsylvania ^ it is held that any wilful and unjustifiable abandonment of matri- monial cohabitation satisfies the statutory word "malicious."^ On the contrary, the Tennessee Court gave a different construc- tion to the phrase " wilful and malicious desertion or absence by the husband or wife, without a reasonable cause, for the space of two years ; " making the word " malicious " control the whole clause, and mean malice in fact, as distinguished from malice in law ; and defining malice as " enmity of heart, or unprovoked malignity toward the person deserted." And the judge said that such malice " must be the motive which induced the desertion," and no other motive will stand in its stead. Yet the point ad- judged was simply that to allege and prove a mere absence "without any just or probable cause" during the statutory pe- riod would not authorize a divorce under the statute.^ This Tennessee doctrine, so far as it departs from the Scotch and Pennsylvania expositions, is believed to be wholly anomalous, without support in our general common-law jurisprudence. 1 Barrie v. Barrie, 10 Scotch Sess. Cas. under the Code, § 2448, subs. 4, authorize 4th ser. 208, 212. a, divorce from the bonds o£ matrimony, 2 Ante, § 1665. must, it has been decided by the Supreme ■• McClurg's Appeal, 66 Pa. 366 ; Court, be not only without any reasonable Bealor v. Hahn, 117 Pa. 169. , cause, but for cause of malice, and the * Stewart v. Stewart, 2 Swan, Tenn. malice contemplated by the statute is not 591. In another case, a separation which malice in law but malice in fact. There accorded with the wish of the complaining must be enmity of heart, or unprovoked party was held not to be sufficient under malignity toward the person deserted. If the statute. And the judge observed : the party goes away and remains, even " If the party goes or remains away for without good and sufficient cause, hut not 'reasonable cause,' or even without good of malice, the divorce a vinculo csamot be and sufficient cause, but not of malice, the obtained." In this case, a desertion for divorce cannot be obtained." Rutledge v. the reason that the deserting party did Eutledge, 5 Sneed, 554, 556, opinion by not like the other as much as he ought Caruthers, J. In Majors v. Majors, 1 was adjudged not to be within the statute. Tenn. Ch. 264, 265, Chancellor Cooper, And compare with McAllister v. McAllis- referring to the above cases, said : " The ter, 1 Heisk. 345 ; Lanier v. Lanier, 5 'wilful or malicious desertion' which will, Heisk. 462. 693 § 1670 JUDICIAL DIYORCES. [book VII. III. The Cessation of the Cohabitation, § 1669. Cohabitation defined. — To cohabit is to dwell together. So that matrimonial cohabitation is the living together of a man and woman ostensibly as husband and wife.^ § 1670. Ceasing to Cohabit — Intent — (Two Elements). — As stated in a preceding sub-title,^ the desertion of the matrimonial law, considered apart from what may justify it, consists of a ces- 1 Tardley's Estate, 75 Pa. 207 ; Pol- lock V. Pollock, 71 N. Y. 137, 145, 146. We find some slight obscurity as to the legal meaning of this word. Referring to its common use, Webster defines it thus: "1. The act or state of dwelling together, or in the same place with an- other. 2. The state of living together as man and wife, without being legally mar- ried." Worcester defines cohabit, " to live together; to dwell with another; to live together as husband and wife." Milton writes of a man's leaving " tlie dear co- habitation of his father, mother, brothers, and sisters." To return to our law-books. Chancellor Walworth, in Dunn v. Dunn, 4 Paige, 425, 428, apologizes for a solicitor and his client in respect of some proceed- ings, on the ground of their " ignorance " in not understanding " what the legal meaning of cohabitation was ; and that they both understood that voluntary co- habitation meant nothing more than that they slept together in the same bed." I am not aware that other judges have often (post, 1684, note) employed this word to denote actual sexual intercourse, further than may be presumed from the dwelling together in the same house of parties os- tensibly as married, or as necessarily im- plying even an occupancy by the husband and wife of the same bed. The words " matrimonial colw.bitation " have even been used, in distinction from " matri- monial intercourse," to signify a living together in the same house without cop- ula. Thus, Lord StoweU adopts the expression of Dr. Harris, one of the ad- vocates of the Ecclesiastical Court, that " the duty of matrimonial intercourse can- not be compelled by this court, though matrimonial cohabitation may." Forster V. Forster, 1 Hag. Con. 144, 154, 4 Eng. 694 Ec. 358, 363. And where the wife alleged that while the husband allowed her to re- side in the same house with him, she was " denied access to his person and bed, and refused common necessaries for her sup- port," Sir Christopher Robinson observed: " The parties are admitted to be actually cohabiting;" though there was no "mat- rimonial intercourse." Orme v. Orme, 2 Add. Ec. 823, 2 Eng. Ec. 354. See Rogers Ec. Law, 2d ed. 896. In another case, Lord Stowell observed that where parties not lawfully in wedlock " have gone so far as to perform the ceremony of mar- riage in a church, and they have since lived together ostensibly as man and wife, that fact, so assisted by the subsequent cohabitation, is strong presumptive evi- dence of an adulterous intercourse, and will fix it." Nash v. Nash, I Hag. Con. 140, 4 Eng. Ec. 357. And to go a little further back, the author of the preface to. Swinburne on Spousals, speaking of the contract of marriage per verba de prce- senti without formal solemnization, says : "In some places the woman, after these spousals, presently cohabited with the man, but continued unknoum .until the marriage day." In Ohio u. Conoway, Tappan, 2d ed. 90, a decision, not of the highest court of the State, but useful as showing the meaning of a word, " cohabi- tation " is defined to be " a living together in one house," in distinction from a mere travelling in company together; and the judge plainly did not understand its im- port to extend further. See also C. v. Calef, 10 Mass. 153. I know, indeed, of no legal authority or common usage, or anything more persuasive than an occa- sional blunder like the one we are now considering, contrary to this view. 2 Ante, § 1662, 1663. ' CHAP. L.] DESERTION. § 1673 sation of the cohabitation, and combined with it the wrong-doer's simultaneous intent to desert the other.^ As to a — § 1671. Third Element — (Against the Will), — Some judges seem to deem it a third element in the prima facie offence that the separation be " against the will " of the deserted party .^ This way of putting the doctrine is not widely erroneous in law, but it leads to a misapprehension of the evidence. The more accurate expression is believed to be simply that such party must not con- sent.^ Thereupon, when the cessation of the cohabitation and the defendant's intent to desert are shown, a prima facie case is made out ; and if the plaintiff consented, or committed such a breach of matrimonial duty as justified the desertion, this is matter for the defendant to allege and prove.* Beyond which, when two separate by mutual consent, there cannot be and there is not in either one an intent to desert the other.° § 1672. How far remove apart. — It is immaterial whether the distance to which the parties remove apart is great or small, except perhaps as in some circumstances aiding the evidence of their intent ; for the criterion, in all cases, is the intent to abandon.® § 1673. Support rendered in Separation. — It is in no legal sense cohabitation for a husband to support his wife wliile they are living apart. His supplying or withholding maintenance may be a relevant fact among the proofs of the intent to desert, but otherwise it has no legal significance. So that a wife may have her divorce for the husband's desertion though after he terminated the cohabitation, or resolved not to renew a cohabitation already 1 Burk V. Burk, 21 W. Va. 445 ; desert are once shown, the same intent Latham v. Latham, 30 Grat. 307; Ben- will he presumed to continue until the nett V. Bennett, 43 Conn. 313 ; Hard- contrary appears." Bailey v. Bailey, 21 enbergh v. Hardenhergh, 14 Cal. 654 ; Grat. 43, 47. Morrison v. Morrison, 20 Cal. 431 ; Rose ^ Taylor v. Taylor, 1 Stew. Ch. 207; V. Eose, 50 Mich. 92 ; Crawford v. Craw- Benkert v. Benkert, 32 Cal. 467 ; Mel- ford, 17 Fla. 180. Following the doctrine downey v. Meldowney, 12 C. E. Green, of the text, " desertion," said Christian, J. 328 ; Eose v. Rose, 50 Mich. 92. in a Virginia case, " is a breach of matri- ^ See, as to the distinction between monial duty, and is composed first, of the these two forms of expression, 2 Bishop actual breaking off of the matrimonial Grim. Law, 6th ed. § 1114 and note, cohabitation, and secondly, an intent to * Besch u. Besch, 27 Tex. 390 ; Orr v. desert in the mind of the offender. Both Orr, 8 Bush, 156. must combine to make a desertion com- ^ Post, § 1690. plete. . . . But it is equally obvious, and * Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, it follows from well-settled principles of 47 ; Gregory v. Pierce, 4 Met. 478. law, that when a separation and intent to 695 § 1676 JUDICIAL DIVORCES. [BOOK VII. suspended, he made her an allowance or otherwise supplied her physical needs.^ In like manner, a husband does not lose his suit for the wife's desertion by furnishing her, whether as a voluntary offering, or in compromise of a claim made upon him, or because of a supposed liability, the like support,^ or by dividing the prop- erty with her.* For though maintaining the wife is a part of the duties of marriage, it is so far secondary and aside from the spe- cial ends of matrimony that an abandonment of the other duties while this one is performed is by the law treated as a complete desertion. In like manner, — § 1674. Domestic Duties. — If a wife leaves her husband's house meaning to desert him, her occasional return to it to look after children who remain, and then engaging there in domestic duties, with no renewal of the cohabitation, will not take away his right to a divorce for the desertion.* Hence, — § 1675. Incidents and Essentials distinguished. — In respect of desertion, as of various other things,^ we are to distinguish what is special and vital in marriage from the incidentals which may pertain equally to other relations. And the rule must be and is that a permanent and total abandonment of the former is deser- tion ; while in matter of law, whatever the effect on the evidence may be, the doing or neglect of the latter is immaterial. Within this distinction, a frequent question, to which the answers have been discordant, and which will require a particular looking into here, relates to — § 1676. Withdrawing from the Marriage Bed while General Cohabitation continues : — The Two Opinions. — Nothing injurious to the liealth can be required of either party in marriage.® But if from no considera- tion of health, and from no other good reason, either the husband or the wife permanently, totally, and irrevocably puts an end to what is lawful in marriage and unlawful in every other relation, — to what distinguishes marriage from every other relation, — this 1 Magratli v. Magrath, 103 Mass. 577, 4th ser. 815. See Nott v. Nott, Law Eep. 4 Am. R. 579. See Goldbeck v. Goldbeck, 1 P. & M. 251 ; Kalston's Appeal, 93 Pa. 3 C. E. Green, 42; Sargent v. Sargent, 9 133. Stew. Ch. 644. ^ Parker v. Parker, 28 lU. Ap. 22. 2 Macdonald v. Macdonald, 4 Swab. & * Rie u. Rie, 34 Ark. 37. Compare T. 242; Yeatman v. Yeatman, Law Rep. with Holmes v. Holmes, 44 Mich. 555. 1 P. & M. 489; Bander's Appeal, 115 Pa. 5 Ante, § 15, 396, 404, 460, and other 480 ; Stoffer v. StofEer, 50 Mich. 491 ; places. Willey V. Willey, 11 Scotch Sess. Cas. e Ante, § 1629. 696 CHAP. L.] DESERTION. § 1678 by the better opinion constitutes matrimonial desertion, though the deserting party consents still to live in the same house with the other in the capacity of servant, of master, of brother, of sister, of parent, of child, or of friend, either for pay or as a gratuity. Yet from this doctrine there is considerable dissent ; some deem- ing that there is a matrimonial cohabitation which substantially fulfils the ends of marriage, while the parties live chastely as to each other, in different rooms or beds, under the same general roof. Now, — §1677. Under our Common Law — this exact question could not in form arise ; because by the law of England, which our fore- fathers brought with them, desertion was not a ground for divorce. But that legal system which constitutes the common law of our country does not consist of formal propositions viewed in an un- reasoning way ; it is a body of doctrine and reason, such that judicial argumentation can and should derive from the existing mass the rule which is to govern any new case, whether occurring under a new statute or under an unprecedented fact.^ And we find the principle which properly controls our present question in the — § 1678. Law of Impotence. — A marriage entered into by one not having the capacity for sexual intercourse is, by the law which our forefathers brought from England, voidable.^ In every other respect, marrying parties take each other for better or worse, so that the lack of the capacity or quality expected or desired does not in the absence of actual fraud impair the marriage.^ Whence it follows that this sort of intercourse is of the essence of marriage, without which it cannot in its proper form exist ; while cohabita- tion in its general sense is no peculiarity of marriage, but it is a thing common to all the members of every household, as well to those who do not dwell in matrimony as to those who do. A man may lawfully obligate himself to support a woman not his wife, or to support her children, or to retain her in his house as long as they both live, and to be kind to her. She may bind her- self in a corresponding way to him. Indeed, there is but the one thing which is special to marriage, and is lawful in no other re- lation. All else pertaining thereto a man and woman may mu- tually contract for, and do, without taking the first step toward 1 Aute, § 130, 131. 8 Ante, § 459, 460. * Ante, § 762, 766, 790. 697 § 1680 JUDICIAL DIVORCES. [BOOK YII. marriage. The unavoidable conclusion from which reasoning is, that the married party who permanently and irrevocably with- draws from all that is peculiar to marriage, whatever incidentals he may adhere to, commits matrimonial desertion. But some un- dertake to derive the law of this subject from that of the suit for the — § 1679. Restitution of Conjugal Eights.^ — In England, a mere refusal of the matrimonial bed is not in general, and probably it is never, adequate ground for this suit.^ As to which. Sir Chris- topher Robinson said : " Matrimonial intercourse may be broken off on considerations of health, for instance, and there may be other, with which it is quite incompetent to this court to inter- fere." 3 And, later. Sir C. Cresswell : " There is no doubt, after the case of Orme v. Orme,* that although this court enforces con- jugal cohabitation, it does not pretend to enforce marital inter- course. The reasons why it does not embark in such an attempt are sufficiently obvious." ^ Yet it is by no means certain that the court would discharge a husband proceeded against in such a suit until he had admitted his wife, not only to his house, but to the matrimonial bed.^ When in this suit the husband is ordered to receive home his abandoned wife, he must take the first step by inviting her to return.'^ It has been explained that the canon law, wlience this suit is derived, compelled carnal copulation ; and it has been supposed that the English departure from its rule was made to relieve the asperities of a cruel and unjust proceeding.^ Other reasons also might be suggested, without resorting to the theory that the ecclesiastical courts deemed the sort of conduct we are considering not to be desertion, — a matrimonial offence whereof they had no knowledge. Still, partly in supposed com- pliance with the rule in this proceeding, — § 1680. Holding it not Desertion — ("Utterly Desert"). — Under a statute making "utter" desertion a ground for divorce, the Massachusetts Court adjudged as follows : A wife, taking offence because her husband permitted a son to enlist in the army, ex- cluded him from her bed, declaring that she did not love him, she 1 Ante, § 1661. 6 Ro^^e v. Rowe, 4 Swab. & T. 162, = Weldon v. Weldon, 9 P. D. 52, 56. 163. ' Orme v. Orme, 2 Add. Ec. 382, 2 Eng. ^ Qrme v. Orme, snpra. Ec. 354 ; Eorster v. Forster, 1 Hag. Con. ' Alexander v. Alexander, 2 Swab. & 144, 154, 4 Eng. Ec. 358, 363. T. 385. * Orme v. Orme, supra. 8 50 London Law Magazine, 275. 698 CHAP. L.J DESERTION. § 1681 would have no more sons for him to send to the war, she did not think she should ever live with him again " as man and wife," and he was " nothing but a boarder." After the lapse of the statutory period, the husband brought his suit for divorce, but it was denied him. Said Bigelow, C. J. : " The word 'desertion' in the statute does not signify merely a refusal of matrimonial inter- course, which would be a breach or violation of a single conjugal or marital duty or obligation only, but it imports a cessation of cohabitation, a refusal to live together, which involves an abnega- tion of all the duties and obligations resulting from the marriage contract." ^ And still, not long after, this court contradicted the defining of desertion thus laid down, by holding a husband to be guilty of it who did not abnegate the " duty and obligation " of supporting the wife.^ The result of which two cases is that if a married woman refuses to be a wife to her husband, whereupon he maintains her in a room other than that occupied by himself, yet sheltered by the same roof, it is not desertion ; if she steps across the street into a room sheltered by another roof and he maintains her there, it is desertion. In reason^ a wife who thus discards her husband does what is also very different from and quite beyond the mere denial of a natural gratification : she attempts to drive him into adultery, she insults him every hour of her life, she casts off the obligation special to marriage, and more completely and in a worse form deserts him than if she took her offensive and ever-harrowing presence away from his sight. Later, — § 1681. Further of "Titter Desertion." — The Maine tribunal, relying on the word "utter," which qualified "desertion" in the statute, as in Massachusetts, followed this Massachusetts doctrine. Said Emery, J. : " Decisions are cited from the courts of some other States which seem to hold the contrary doctrine. There is a difference between the statutes of those States and our statute. Our statute uses the phrase ' utter desertion.' The statutes upon which the opposing decisions are based omit the word ' utter.' The language of our statute, enacted in 1883, is the same ver- batim as that in the Massachusetts statute which has already received judicial construction. The inference is that our legis- lature in using the same language intended the same construc- 1 Southwick V. Southwick, 97 Mass. ^ Ante, § 1673; Magrath v. Magrath, 327, 328, 93 Am. D. 95. 103 Mass. 577, 4 Am. E. 579. 699 § 1684 JUDICIAL DIVORCES. [BOOK VII tion." 1 We may doubt whether the word " utter " should thus be interpreted to elongate the word " desertion " into a meaning not its own. It could have an ample effect if rendered by some such phrase as " with intent never to cease deserting." ^ § 1682. Holding it Desertion. — More or less distinctly, and in accord with what we have seen to be just principle, the courts of numbers of our States hold the conduct we are considering to be desertion.^ In addition to the more direct rulings, — § 1683. Receiving to House, not Bed. — A husband who has deserted his wife, it has been held, cannot terminate the desertion so as to deprive her of divorce, by offering, before the expiration of the statutory period, to support her either in his own house or elsewhere. " The offer," said the court, " was not to live with her in the relation of husband and wife ; and as she was by the nature and terms of the marriage contract entitled to stand in that relation to him, she was not bound to accept the offer to stand in any other relation." * His proposition here was to put himself in the exact position we have been considering ; namely, to desert her bed, yet to renew the rest of the cohabitation. And the court's refusal to admit this as ending the desertion is a direct affirmance, by solemn adjudication, of what we have seen to be the better doctrine. Again, — § 1684. Joining Shakers — (Marriage Relation unlawful). — A statute provided " that any husband or wife separating liim or herself from the other, and joining and uniting him or herself with any religious sect or society that believes or professes to believe the relation between husband and wife void or unlawful, and such husband or wife continuing to live so united with such sect or society for the space of three years, and refusing during that time to cohabit with the other, who shall not have joined and continued united with such sect or society, shall be deemed and taken to be a sufficient cause of divorce from the bond of matri- mony." On a wife's suit for divorce under this statute, it ap- peared that the husband had joined the Shakers. And the case 1 Stewart v. Stewart, 78 Me. 548, 552, Heermance v. James, 47 Barb. 120, 126, 57 Am. R. S22. 127, 52 Am. R. 388, note; Sisemore v. 2 In Minnesota — something like the Sisemore, 17 Or. 542; Magill v. Magill, 3 Massachusetts and Maine doctrine is main- Pittsb. 25. tained. Segelbaum u. Segelbaum, 39 Minn. * Fishli w. Fishli, 2 Litt. 337,341. See 258. also Moss v. Moss. 2 Ire. 55. s Steele v. Steele, 1 MacAr. 505, 506 ; 700 CHAP. L.J DESERTION. § 1686 was held to be within the statutory terms ; the evidence being that the Shakers acknowledge the husband's duty to maintain his wife, and liers to conduct in a discreet and seemly way in submis- sion to her husband, and acknowledge generally the lawfulness of marriage, as to what were called in the case " all its duties which the laws can enforce. But," said the court, " the evidence shows, and it is not denied, that they also believe, or profess to believe, that cohabitation^ is not one of the duties resulting from the relation of husband and wife ; and that, with respect to the great end of matrimony, the continuation of the species, they hold the relation to be void and unlawful. . . . We have, therefore, no hesitation in saying that we think it clearly proved that the Shakers are a sect professing to believe the relation of husband and wife unlawful and void, within the meaning of the statute." ^ The doctrine of this case is, to repeat, that one who believes everything pertaining to marriage to be lawful except copula, yet believes it to be unlawful, esteems " the relation between husband and wife unlawful." Hence, as a part of the doctrine itself, a married person who, without justification, deserts copula, deserts " the relation between husband and wife ; " in other words, com- mits the matrimonial offence of desertion. § 1685. The Jewish Lavr — enforces the like doctrine. In the words of a recent excellent Jewish writer : " The duty of conjugal cohabitation is legally, as well as ritually and ethically, regulated in the Kabbinical Code. A continued refusal, on either side, re- garding this duty, if not excused by sickness and circumstances, offers a ground for divorce." ^ § 1686. The Scotch Law — appears to be the same. Fraser says ; " The diversion justifying divorce has hitherto been con- fined to the case where the offender deserts the society of the other. Yet a question has been raised as to whether it would apply to the case of a party who occupies the same house with tiie pursuer, and the same bed, and yet refuses conjunct ionem corporum, or at least to cohabit with the other at bed and board. Sir George Mackenzie refers to this question, and says ' that it may be doubted if a wife, remaining in her husband's house, but 1 From the connection, and from other Shakers believe "that it is unlawful for expressions in the report, it plainly ap- man and wife to cohabit together as man pears that the court here use the word and wife." See ante, § 1669 and note, "cohabitation" in the sense of sexual ^ Dyer v. Dyer, 5 N. H. 271, 273. intercourse. For instance, they say the ' Mielziner Mar. & Div. 101. 701 § 1688 JUDICIiL DIVORCES. [bOOK VII. refusing him all access to her, may be said to have deserted ; and I conceive she may, for all the reasons in the one case conclude against the other.' Elchies also said, ', Truly I am of opinion there is the same reason for dissolving a marriage for wilful abstinence as for non-adherence ; though I am afraid our law- would not sustain it, since it is not contained in the act.' It would seem, however, that it is desertion. Marion Graham ap- plied to the Commissaries, setting forth that George Buquhanane, her husband, ' put hir fra him, repelland hir of his cumpanie, and inclusit hir in ane chalmer in ye heid of his place of Buquhanane, and hes abstractit his bodie fra hir continewallie sinsyne, and haldin hir thairin inclusit, and will not put hir to libertie and freedom, and adheir, treit, and entertqin hir at bed and buird.' Here the parties were living in the same house, yet the wife aslied for adherence, and not judicial separation. The commissaries decerned him ' to adheir as an man aucht to do to his wyff.' " ^ And in a Scotch case before the House of Lords, this tribunal held that though the husband offers to aliment his wife in his own house, yet does not eat, sleep, or stay there with her, he does not so discharge the duty of adherence as to be exempt from liability in her suit for separate alimony .^ IV. The Intent to Desert and the Acts accompanying. § 1687. Nature of Intent — Proof of it. — An intent is a con- dition of the mind. It is not, like a blow, palpable to the sight ; so that ordinarily our knowledge of its existence comes only from the words or acts whicli spring therefrom, and in law the evidence of it is presumptive.^ Otherwise expressed, it is an inference from more tangible facts.* Therefore, of necessity, those more tangible facts will constitute the principal subject of inquiry in this sub-title. At the same time, the intent to desert must exist as a fact," it not being a mere technical fiction of the law. Now, — § 1688. Doctrine of Intent defined. — The intent to desert must abide only in the mind of the party deserting; for if the other 1 1 Fras. Dom. Eel. 681. And see lb. ' 1 Bishop Crim. Proced. § 1101. 55. * Lawrence v. Lawrence, 2 Swab. & T. 2 Arthur c. Gourlay, 2 Craigie & S. 575. 184. As to which point, however, see * ^^^K "■ ^'^SSi ' P- D- 17; Barrett Gray v. Gray, 15 Ala. 779. v. Barrett, 10 Stew. Ch. 29. 702 CHAP. L.] DESERTION. § 1693 has it also, the divorce suit of each will be barred under the law of recrimination, to be stated in the second volume. And the rule is that the party deserting must intend to live apart from the other, not as a mere temporary expedient, but permanently. § 1689. "The Bleuding Acts — (Acts of Desertion). — As, in cruelty, the conduct which shows danger from a continuance of the cohabitation is termed acts of cruelty ;^ so, in desertion, what the party wrongfully does in pursuance of the intent to desert, or evidencing the intent, is sometimes and not inappropriately called acts of desertion. So that a particular doing or joint doing is often set down in the books as being, or not being, desertion. And still, accurately considered, the desertion in these as in all other cases is composed of the two elements, the cohabitation terminated and the intent to desert.^ In this view, — § 1690. Living Apart by Consent. — A married partner who con- curs in the other's going away cannot complain of the going. In consequence whereof, a separation by the mutual consent of the parties is not desertion in either.^ And it is immaterial to this question whether there is-* or is not° the further understanding that one of them shall apply for a divorce. If by pressure and unfair means, a husband obtains his wife's agreement to a separate living, this termination of the cohabitation, to which her consent is not real, being brought about by his will, is a desertion of her by him.® Again, — § 1691. Absence on Business — is not desertion;'' because it does not imply a wilful abandonment of matrimonial duties. Also, — § 1692. Absence from Sickness. — An absence made necessary by sickness is to be viewed in the same way, and for the like reason.® And — § 1693. Mere Non-Cohabitation — is not in law desertion, nor is it sufficient evidence thereof when standing alone.^ Connected 1 Ante, § 1536, 1554. Pa. 211 ; "Ward v. Ward, 1 Swab. & T. 2 Sergenti). Sergent, 6 Stew. Ch. 204 ; 185; Fulton v. Fulton, 36 Missis. 517; Skean v. Skean, 6 Stew. Ch. 148. McKay v. McKay, 6 Grant, U. C. Ch. 380 ; 3 Secor V. Secor, 1 MacAr. 630; Cox Buckmaster v. Buckmaster, Law Rep. 1 V. Cox, 35 Mich. 461 ; Goldbeck i>. Gold- P. & M. 713; Lea v. Lea, 8 Allen, 418; beck, 3 C. E. Green, 42 ; Rudd v. Rudd, Ingeraoll v. IngersoU, supra. 33 Mich. 101 ; Townsend v. Townsend, ^ Dagg v. Dagg, 7 P. D. 17. Law Rep. 3 P. & M. 129 ; IngersoU v. In- ' Ex parte Aldridge, 1 Swab. & T. 88; gersoU, 49 Pa. 249, 88 Am. D. 500. 'Williams v. Williams, 3 Swab. & T. 547. * Mansfield v. Mansfield, Wright, 284. ^ Keech v. Keech, Law Rep. 1 P. & M. 5 Crow V. Crow, 23 Ala. 583; Gray v. 641. Gray, 15 Ala. 779; Vanleer «. Vanleer, 13 " Jonea v. Jones, 13 Ala. 145; Gaines 703 § 1697 JUDICIAL DIVORCES. [BOOK VII. with other circumstances, a protracted absence may be enlighten- ing as to the party's original intent.^ So — § 1694. Non-Support — of the wife, though accompanied by non- cohabitation, does not alone establish the husband's desertion.^ Or if she insists upon his leaving her because he will not provide for the family, his compliance is not a desertion of her.^ But where the husband took all the furniture from the house and went away, and ceased to communicate with the wife, his deser- tion was held to be complete.* § 1695. More Minutely. — We shall obtain a better view of the entire subject of this sub-title if we separate its doctrines into specific propositions ; namely, — § 1696. First. Though to constitute desertion there must he a simultaneous separation and intent to desert, and it does not exist without the presence of hoth^ the two need not begin together, hut the desertion commences whenever to either one the other is added> Thus, — § 1697. Separation, then Intent to Desert. — If a husband or wife leaves the matrimonial habitation intending to return, but after- ward resolves to remain away, the desertion begins when this new purpose is formed.^ And where for a cause not appearing a hus- band and wife had been living apart, but he contributed to her support, he was held to have deserted her from at least the time when, withdrawing the support, he wrote her among other things as follows : " When, therefore, I now cease to give you any further means, it is only done until such time as you are ready for such settlement, which is to fix a sum for your entire maintenance and expenses, all in all, payable to you weekly, by a third person. . . . Finally, I wish whatever settlement is made between us to be done by a legal divorce. The tie is broken and happiness can never be restored between us, for which reason it is much better to live as V. Gaines, 9 B. Monr. 295, 303, 48 Am. D. ^ Bpurquin v. Bourquin, 6 Stew. Ch. 7. 425 ; Butler v. Butler, 1 Parsons, 329 ; ' Johnson v. Johnson, 8 Stew. Ch. 20. Stokes V. Stokes, 1 Misso. 320; Scott o. * Williams v. Williams, 8 Stew. Ch. Scott, Wright, 469 ; Pidge v. Pidge, 3 382. And see Pilgrim v. Pilgrim, 57 Iowa, Met. 257, 258 ; Van Voorhees v. Van 370. Voorhees, Wright, 636 ; McCoy «. McCoy, * Ante, § 1663, 1670; Latham u. La- 3 Ind. 555 ; Cook v. Cook, 2 Beasley, 263 ; tham, 30 Grat. 307. Jennings v. Jennings, 2 Beasley, 38 ; Ben- ^ Reed v. Reed, Wright, 224 ; Pink- nett V. Bennett, 43 Conn. 313; Burk v. ard v. Pinkard, 14 Tex. 356, 65 Am. D. Burk, 21 W.Va. 445. 129; Conger . Meldowney, 12 C. E. 730 CHAP. L.] DESERTION. § 1759 even have been legally censurable, at least in the husband." ^ And the same principle applies to the ordinary divorce suit.^ " Nor," observed the Louisiana Court, " is it an answer to this view to say that though he left the common dwelling early in June, he did not institute his suit until the 28th of October, inas- much as the approaching summer vacations of the court would in all probability have prevented a trial ; or it may be that the husband hoped that, during this interval, the situation of his wife would prompt her mind to such reflections as would induce a change in respect to the habit complained of." ^ But — § 1758. Divorce Suit Colorable — Suit after Desertion. — A sham proceeding, being a fraud on the court, on the law, and on the party disturbed by it, has no such effect as a real one. So that if the divorce suit is a mere pretence, while desertion is the thing meant, it will not annul or justify the desertion.* Or if after a desertion has commenced, there comes a real divorce suit, rendering a renewal of the cohabitation temporarily improper, still it does not intercept the desertion ; because, as an intent to con- tinue the cohabitation will in the absence of explanation extend through the temporary separation of the last section, so the intent to desert will reach forward and govern the period of the divorce suit here stated.^ Again, — § 1759. Imprisonment — will, or not, prevent the separation from being desertion, according to the circumstances and intent. A desertion begun does not stop where an imprisonment com- mences.^ In a case of this sort, Bigelow, J., added : " We think it was also ' wilful ' [a term in the statute] . This is shown by the proof that it commenced before the defendant was impris- oned, and that during the intervals between his several com- mitments to the house of correction he neither returned to the society of his wife nor contributed anything to her maintenance or support." ^ Here the intent was to separate, not merely for a period, such as that during which a divorce suit is pending, but perpetually. It had an existence independent of the imprisonment, 1 Sullivan v. Sullivan, 2 Add. Ec. 299, v. Gunzler, 52 Mo. 172 ; Simons v. Simons, 2 Eng. Ec. 314; Clowes w. Clowes, 9 Jur. 13 Tex. 468. And see Salorgne v. Sa- 356. lorgne, 6 Mo. Ap. 603. 2 Sykes v. Halstead, 1 Sandf. 483 ; Ed- ^ lb. ; Wagner v. Wagner, 39 Minn, wards v. Green, 9 La. An. 317. 394. 8 Edwards v. Green, 9 La. An. 317. « Drew v. Drew, 13 P. D. 97. * Doyle V. Doyle, 26 Mo. 545, 550 ; S. ' Hews v. Hews, 7 Gray, 279. 731 § 1761 JUDICIAL DIVORCES. [BOOK VII. with which it was in no way commensurate. But, still pursuing the distinctions of the last two sections, if while parties are cohab- iting one of them commits a crime — for example, an assault on the other — and is imprisoned for it, this separation, no intent to desert having been established, is not desertion'.^ So — § 1760. Separated under Sentence. — A wife does not desert her husband by living apart from him under a judgment requiring him to pay her an allowance for her maintenance.^ The distinc- tions explained in these sections appear in some measure to ex- tend to a case of — § 1761. Insanity. — Plainly an insane husband or wife cannot commit an original desertion. But there is ground for saying that if a married party while sane deserts the other, then becomes insane, the desertion will continue to run through the statutory period. It was in substance so held by the majority of a divided court, under a statute which authorized divorce when the husband " wilfully deserts his wife and absents himself without a reasona- ble cause for the space of two years." " The statute means," said Cole, J., " that if the husband wilfully deserts his wife when she has not by her conduct given him a reasonable cause, and shall ab- sent himself for two years when she has given him no reasonable cause for remaining away, then she shall be entitled to a divorce." ^ A question of this sort should not be settled upon any narrow con- sideration of statutory words ; for our divorce statutes are essen- tially of one meaning, not being much affected by their varied terms.* Now, it is impossible that' in real fact the intent to de- sert should exist in the mind after it has become insane. Herein insanity differs from imprisonment. An imprisoned person, liiie one at liberty, may choose — intend — desertion or cohabitation, but a mind insane cannot. So that where the law requires an in- tent to desert, continued during the entire statutory period,^ as an element of the offence, it is not quite obvious how one incapable of the intent during a part of the period violates the law. In a case of imprisonment, there is a presumption of the continuance 1 Porrittu. Porritt,18 Mich. 420; Wolf tion of domicil, Washington ^. Mahaska, V. Wolf, 11 Stew. Ch. 128. See Drew v. 47 Iowa, 57. Drew, supra. * Ante, § 1664, 1665. 2 Weld V. Weld, 27 Minn. 330. ^ Grossman i'. Grossman, 33 Ala. 486 ; s Douglass V. Douglass, 31 Iowa, 421, Bowlby v. Bowlby, 10 G. E. Green, 406; 423. And see, as illustrative on a ques- Taylor v. Taylor, 1 Stew. Gh. 207 ; Driver V. Driver, 1 Stew. Gh. 393. 732 CHAP. L.J DESERTION. § 1764 of the prior intent ; in a case of insanity, the ground for presump- tion appears to be taken away. Still, this is a question on which opinions may differ, as we see tliey have done. § 1762. Separation under Religious Vow. — Vows made to an ecclesiastical superior, or to God in pursuance of a religious faith, have no more effect in our law than any other vows. So that, for example, where a husband and his wife, Protestants, had both joined the Church of Rome, taken vows of chastity, and a quasi sentence of separation had been pronounced between them by the authorities of the Church, after which he became a priest and she a nun, — it was in England held that the husband was not thereby barred of his suit for the restitution of conjugal rights.^ So the rule with us would be that after such steps, either party may request a renewal of the cohabitation, and a refusal will be desertion. § 1763. Separation for Cause removed. — Where a woman had left her husband on account of his extreme intemperance, but he afterward reformed, offered her a good home, and invited her to return, yet she declined, it was held by one of the higher judges in Massachusetts, Wilde, that assuming her leaving of him to be justifiable, her subsequent refusal to return on the cause being removed was a desertion. It could not be the intent of the law to bind a man forever to the consequences of an early fault, curable in its nature, and cured in fact.^ § 1764. Mutual Fault waived by One. — Under the head of Re- crimination, in the second volume, we shall see that where both parties have committed derelictions justifying a divorce, neither is entitled to it against the other; because, among other reasons, the mutually guilty persons are proper and suitable companions. Now, while such persons are living apart, each because of the other's fault, can one of them demand cohabitation, and on being refused hold the other as for desertion ? The judge ordinary in England declined, in 1858, to sustain on this sort of fact a suit for the restitution of conjugal rights, though confessedly permitted by the canon law.^ An earlier Irish case, not then made public, follows the canon law.* These two decisions, being in conflict, 1 Connelly i>. Connelly, 16 Law Times, See also Walker v. Laighton, 11 Fost. 45, 7 Notes Cas. 444, 2 Rob. Ec. 201, 2 N. H. 111. Eng. L. & Eq. 570. ^ Hope v. Hope, 1 Swab. & T. 94. 2 Hills . Rivers, 60 Iowa, 378 ; 65 lb. 309 , Utsler v. Utsler, "Wright, 627 ; Page 568 ; Vinsant v. "Vinsant, 49 lb. 639. on Div. 178; Handy v. Handy, 124 Mass. ^ Cone v. Cone, 58 N.H. 152. 394; Young zi. Young, 61 Tex. 191. ' 1 Bishop Crim. Law, § 898 and note, 8 Maine R. S. of 1883, c. 60, § 1. « Young v. Young, 61 Tex. 191, 193. 748 CHAP. LI.] OTHER SPECIFIC CAUSES. § 1812 § 1808. In what State or Court the Conviction. — A statute in the general terms we are considering would seem, on the ordi- nary principles of interpretation, to be applicable only to a con- viction in the courts of the State enacting it, not extending to one in a foreign jurisdiction.^ So the Tennessee provision was construed, but this was by reason of its special terms, and the learned judge who delivered the opinion appeared to deem that otherwise the result would have been the other way.^ In New Hampshire, under the words " conviction of crime and actual im- prisonment in the State prison," a conviction in the District Court of the United States for the district of Massachusetts, followed by imprisonment in the Massachusetts State prison, was held not to authorize divorce,^ — a conclusion fully in accord with the almost uniform rulings upon other statutes on other subjects. This ques- tion is in some of the States settled by express words of the enact- ment ; namely, " conviction either in or out of this State." ■* § 1809. Discrepancy in Name. — If the name is not identical in the record of conviction and in the libel for divorce, — as, if in the one it is Nathan and in the oihQV Nathaniel, — parol evi- dence is admissible to show that both names denote the same individual, or that the names are understood to be the same in the neighborhood where the defendant resides.^ § 1810. Absent and not heard of : — The Statutes — under this head are not numerous ; and some of the older ones may have been varied in words or repealed. § 1811. "Of" or "From" — The Witnesses. — Where the ground for divorce was absence for three years together without being " heard of," proof of such absence without being " heard from " was held not to sustain the allegation ; since, according to the understanding of most witnesses, the latter expression implies some verbal or written communication from the absent person, while the former does not, but he may have been heard " of " in some other way. And there should be evidence from the friends of the absent party, or some reason shown for its non-production.^ Again, — § 1812. In Connecticut, — where a seven-years absence not heard of was made ground of divorce,'^ it was observed that this " im- 1 Bishop Written Laws, § 141. 5 XJtsler v. Utsler, Wright, 627. 2 Klutts V. Klutts, 5 Sneed, 423. 6 Fellows v. Fellows, 8 N. H. 160. ' Martin v. Martin, 47 N. H. 52. ' Trubee o. Trubee, 41 Conn. 36, 39. 4 Del. Stat, of 1859, c. 638. '749 § 1817 JUDICIAL DIVORCES. [BOOK VH. plies no injury, but is evidence of the death of the absent party." ^ Still it would be inaccurate to infer that, therefore, a judicial sen- tence would be useless ; because, in the absence of such sentence, the marriage would be in law continuing if in fact the absent party was alive.^ Reeve states : " It has been holden that it was not necessary that a divorce should be had to entitle the party to marry again, the law proceeding upon the ground that the person so not heard of for seven years is dead." ^ If, under the proven fact that in spite of this presumption the not-heard-of party was not dead, any bench of judges made this ruling, their successors would be sure to hold the contrary. But — § 1813. The Presumption of Death — has already been suffi- ciently considered in these pages * § 1814. Q-ross Misbehavior and Wickedness : — Statute. — A Rhode Island statute authorized divorce for "gross misbehavior and wickedness repugnant to and inconsistent with the marriage contract." And — § 1815. Not Adequate. — It was held not to be a sufficient dereliction for the Imsband and a woman other than his wife to become daily companions, and avow each for the other entire affection, if they proceed to nothing otherwise criminal.^ § 1816. Desertion and Adultery : — In England, — as already explained, the divorce statutes permit the wife to have her marriage dissolved for the husband's " adul- tery coupled with desertion without reasonable excuse for two years or upwards," — the husband being permitted his divorce for the wife's adultery alone.® In preceding chapters, we saw what is adultery and what desertion, and nothing remains spe- cially to be noted here.^ § 1817. Desertion and Living in Adultery : — Already — something has been seen of this combination cause of divorce. It is not common,^ — either desertion or adultery alone being in most of our States sufficient. 1 Benton v. Benton, I Day, 111. 6 20 & 21 Vict. c. 85, § 27 ; ante, § 153, 2 Ante, § 717. note. 3 Keeve Dom. Rel. 206. ' Consult, among numerous cases, Gar- * Ante, § 949-955, 1316; Strode v. cia v. Garcia, 13 P. D. 216; Bigwood 0. Strode, 3 Bush, 227, 96 Am. D. 211; Bigwood, 13 P. D. 89 ; Parmer r. Farmer, Kinzey v. Kinzey, 7 Daly, 460 ; Oram v.. 9 P. D. 245. Or.im, 3 Redf. 300. ^ Ante, § 1505; Morris v. Morris, 20 » Stevens v. Stevens, 8 R.L 557. Ala. 168; Holston i: Holston, 23 Ala. 777; Rawlins v. Buttel, 1 Houst. 224. 750 CHAP. LI.] OTHER SPECIFIC CAUSES. § 1821 § 1818. Combining. — Under a statute of this sort, — for ex- ample, one permitting dissolution " where either party has sepa- rated him or herself from the other and is living in adultery," — the two delinquencies must combine ; namely, a desertion and a. living in adultery .^ So that where a husband so conducts as to justify his wife in leaving him, this not being in law a desertion by her ,2 or himself deserts her, and thereupon she lives in adul- tery, he cannot have the divorce.^ For the one element of wrong will not suffice, the two must blend. As to the — § 1819. Desertion. — It must be full and complete, the same which is explained in the last chapter. If, for example, a hus- band tells his wife he will not thereafter recognize her as wife, and for this she leaves him and then lives in adultery, her con- duct does not give him ground for divorce ; because, in law, she does not desert him.* As to the — § 1820. Living in Adultery. — This part of the offence is not constituted by a single carnal act, however flagrant ; for the two statutory words " living in " must be satisfied equally with the other one, " adultery." ^ In " Statutory Crimes," the author has explained this offence as a breach of the criminal law of a con- siderable number of our States,^ and the matrimonial wrong does not appear to differ from it. A mere occasional private act does not constitute the " living," '^ though there is no legal impossi- bility of committing the entire offence in a single day.^ Hence, in matrimonial law, the offence having been made complete, there is no necessity for its continuing at the time when the suit is brought.^ But — § 1821. Further of Continuing. — Under the statutory words " is living in adultery," the result may be different. The North Carolina Court, in passing upon a case within these words, ap- 1 MiUer v. Miller, 78 N. C. 102. ? lb. § 697 ; Miller v. Miller, 78 N. C. 2 Ante, § 1754. 102. ' Whittington v. Whittington, 2 Dev. & > lb. And see further as to what in Bat. 64 ; Moss v. Moss, 2 Ire. 55 ; Morris the criminal law it is to " live together in V. Morris, 75 N. C. 168; Tew v. Tew, 80 adultery," S. .;. Glaze, 9 Ala. 283; Cam- N. C. 316, 30 Am. K. 84. See Wood v. eron u. S. 14 Ala. 546, 48 Am. D. Ill ; Wood, 5 Ire. 674. Collins v. S. 14 Ala. 608 ; Belcher v. S. * Moss V. Moss, 2 Ire. 55 ; Foy v. Foy, 8 Humph. 63. As disqualifying the wife 13 Ire. 90; Morris v. Morris, 20 Ala. 168. to inherit the husband's estate, Goodwin As to which, however, see Holston v. Hoi- v. Owen, 55 Ind. 243. And see ante, ston, 23 Ala. 777. § 1522. 5 Long V. Long, 2 Hawks, 189. ^ Adams u. Hurst, 9 La. 243. See " Bishop Stat. Crimes, § 695-709. Mehle v. LapeyroUerie, 16 La. An. 4. 751 § 1824 JUDICIAL DIVORCES. [BOOK VII. peared to deem it essential that the adultery should be continuing when the suit is brought. "For the law," said Ku'ffin, C. J., " does not mean to dissolve the bonds of matrimony, and exclude one of the parties from marriage, until there is no just ground to hope for a reconciliation. For that reason, a divorce of that kind is denied when the parties give such evidence of the probability of a reconciliation as to continue to live together. And even when there is a separation, if the offending party should reform forthwith, and lead a pure life afterward, the law does not look upon it as hopeless, and reconciliation may in time follow the reformation." ^ Again, — § 1822. Condonation — (Adultery after Desertion). — The case must be such that neither the adultery nor the desertion will appear to have been condoned, unless it has been also revived by subsequent misconduct.^ Besides which, perhaps the special terms of a statute may require adultery subsequent to the deser- tion, not rendering it sufficient that there is first a living in adul- tery and then a desertion following.^ In any form of the statute, if a wife knowing that her husband is living in adultery continues to cohabit with him, she condones the offence ; yet his subse- quent desertion might revive it, — matter not for this volume, but for the next. § 1823. Living in Separation : — As Ground for Divorce. — In Wisconsin and one or two other States, we have the provision, not common in our American legis- lation, that when married parties have voluntarily lived separate five years the courts may dissolve the marriage bond. And the interpretation is tliat the separation must be mutual, — " voluntary" as to both.* No distinct agreement for so living need be shown, but the necessary facts may be presumed from the circumstances.^ § 1824. Transmuting Divorce, — In exceptional States, after a divorce nisi, or when the parties have lived apart for a given number of years under a divorce from bed and board, the separa- tion may be transmuted to, or be made ground for, a dissolution of the marriage.^ Under a provision for dissolution " when one year shall have expired from the date of the judgment of separa- 1 Hansley v. Hansley, 10 Ire. 506, 515. 5 PhiUips v. Phillips, 22 Wis. 256. 2 Santo Teodoro v. Santo Teodoro, 5 " Fera v. Fera, 98 Mass. 155, 157; P. D. 79, 83. Whiting y. Whiting, 114 Mass. 494; Big- 3 Hansley v. Hansley, 10 Ire. 506. elow v. Bigelow, 108 Mass. 38. » Thompson v. Thompson, 53 Wis. 153. 762 CHAP. LI.] OTHER SPECIFIC CAUSES. ' § 1827 tion from bed and board, and no reconciliation shall have taken place," it has been adjudged necessary for the plaintiff, by his proofs, to show that there has been no reconciliation.' In this way, allegation and evidence are made as broad as the statute. The defendant may plead the nullity of the judgment on which the dissolution suit is founded.^ Only the party in whose favor the divorce from bed and board was rendered, can maintain this proceeding.^ ' § 1825. Public Defamations : — What and How. — A public defamation is a species of cruelty.* And in Louisiana it is by statute made a separate ground for the divorce from bed and board. A wife does not commit this offence by bringing against her husband a divorce suit for adultery and failing in her proofs ; because, observed Buchanan, J., " if the accusation be not wanton or malicious, although unfounded in point of fact, it cannot with propriety be said that there was a public defamation."'' So what is uttered by a husband to his wife in the liearing of no third person is inadequate, whatever its effect might be were there listeners.^ But to frequently, in the presence of visitors and servants, charge her with adultery is a public defamation within the statute.^ § 1826. Offering Indignities : — As Cruelty. — This matrimonial offence, like the last, is a spe- cies of cruelty, and under the title Cruelty we have already con- sidered it in various aspects.* It is a creation of statutes, not quite uniform in their terms. Thus, — § 1827. To "Person." — We have judicial discussions on the distinctions, in meaning, between the simple term " indignities," indignities to the " person," and the like, in the statute.® A hus- band's concealed adultery, committed in his own house during the wife's absence, has been adjudged not to be an indignity to her " person." i" Personal violence is not a necessary element.^^ And 1 Von Hoven v. Weller, 38 La. An. 903. Doan v. Doan, 3 Pa. Law Jour. Rep. 7 ; 2 Daspit V. Ehringer, 32 La. An. 1174. Gordon v. Gordon, 48 Pa. 226; Taylor v. 8 Johnston v. Johnston 32 La. An. Taylor, 76 N. C. 433. 1139. 9 Lewis v. Lewis, 5 Misso. 278 ; Cheat- « Ante, § 1569, 1570. ham v. Cheatham, 10 Misso. 296; Coble 6 Homes v. Carrier, 16 La. An. 94. v. Coble, 2 Jones Eq. 392; Erwin v. Er- 6 Bienvenu v. Her Husband, 14 La. win, 4 Jones Eq. 82; Taylor u. Taylor, 76 An. 386. N. C. 433. ' Cass V. Cass, 34 La. An. §11. i' Miller v. Miller, 78 N. C. 102. 8 Ante, § 1535, 1548, note, 1550, 1607 ; " Haley v. Haley, 44 Ark. 429. VOL. I. — 48 753 § 1829 JUDICIAL DIVORCES. [BOOK VII. it has been deemed that " rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumely, studied neglect, intentional incivility, injury, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate, alien- ation, and estrangement" are adequate derelictions within this statute, but what goes less far will not suffice.^ § 1828. Simple " Indignities." — Under the statutory words " offer such indignities to the other as shall render his or her condition intolerable," it was adjudged not enough for a husband to write to his wife that he will not live with her more ; adding that she does not suit him, he was deceived in her, her conduct to his relatives has been improper ; and to post a notice to all per- sons not to trust her on his account. The court deemed that the adequacy of the indignities would depend much on the special circumstances, and, in the language of the learned judge, "the habits and feelings " of the particular individuals. " It is impos- sible," continued Gamble, J., " to specify particular acts as the indignities for which divorces may, in all cases, be granted ; for it is not possible to state the effect of such acts in rendering the condition of all persons injured intolerable. ... In the present case, the conduct of the husband in writing the letter to his wife appears to be a wanton act of cruelty, but it was confined to her, and not published to the world ; ... it was but the expression of his determination to abandon her without giving any decent pretext for the act." ^ A malicious accusation of adultery may or not be sufficient, according to its circumstances and the special statutory words.^ Desertion alone does not make a case within this statute.* An excessive use of opiates by the husband, rendering his condition intolerable to the wife, was by the ma- jority of a divided court held to be adequate.* The indignities need not be of a sort and degree to endanger life.® § 1829. Sodomy: — Names — Crime. — Carnal practices contrary to nature, whether unnatural copulations of two human beings with each other, or of 1 Kurtz V. Knrtz, 38 Ark. 119, follow- ham v. Cheatham, 10 Misso. 296; Coble ing Rose v. Rose, 4 Eng. 507. v. Coble, 2 Jones Eq. 292. 2 Hooper v. Hooper, 19 Mo. 355. See * Cannon v. Cannon, 17 Mo. Ap. 390. also Bowers v. Bowers, 19 Mo, 351 ; Rose ^ Dawson v. Dawson, 23 Mo. Ap. 169. I'. Rose, 4 Eng. 507, 516; Shell v. Shell, « May !'. May, 62 Pa. 206. And see 2 Sneed, 716. further, Gordon v. Gordon, 48 Pa. 226; « Lewis t.-. Lewis, 5 Misso. 27.8; Cheat- Sowers's Appeal, 89 Pa. 173; Miles o. 754 CHAP. LI. J OTHEE SPECIFIC CAUSES. § 1831 a human being with a beast, are grave crimes, indictable at the common law and under statutes. They are termed indifferently sodomy or buggery, and sometimes the* horrible crime not to be named among Christians.^ Hence, — § 1830. Matrimonial Offence. — Being a scxual wrong, and mar- riage being a sexual relation, it is a high matrimonial crime. Where a statute made it felony, the ecclesiastical jurisdiction to punish it criminally, and to punish defamations of it, was held to be taken away ; ^ but it remained a ground for divorce from bed and board. As such, it is a higher offence than adultery ; for a mere unsuccessful attempt to commit it will authorize divorce, but such attempt to commit adultery will not. The books are not clear whether under the unwritten law it is to be regarded as an aggravated adultery, or as cruelty, or as an independent cause for divorce. Where a wife pleaded general ill-treatment in one article of her libel; and in .another a conviction of her husband in a criminal court for assaulting his apprentice lad, and lewdly, wantonly, and wickedly pressing, &c., this lad, and endeavoring to persuade him to permit indecent liberties with his person ; Sir John NichoU admitted it, and afterward granted the divorce. He observed : " The case laid, as a whole, does amount, in my judg- ment, to that per quod consortium an^^^^. Could the court send the wife home to such a husband^^He refuses her access to his person, — he resorts to abominable practices, cruelty itself, independent of that other charged."^ In another case, an allega- tion responsive to the husband's suit for the restitution of con- jugal rights was admitted, charging him with unnatural practices toward his wife. On tiie hearing, the evidence failed.* § 1831. At Preseat in England — this offence is an independent ground for divorce, — a heavier matrimonial wrong than adultery. For the statute of 20 & 21 Vict. c. 85, § 27, while permitting to Miles, 76 Pa. 357 ; Dwyer v. Dwyer, 2 and Ellenthorpe v Myers, 2 Add. Ec. 158, Mo. Ap. 17; Powers's Appeal, 120 Pa. note, 2 Eng. Ec. 260, 261. 320. ■• Geils «. Cells, 6 Notes Cas 97. The ' 1 Bishop Critn. Law, § 503, 767 ; 2 wife pleaded, that " she suffered, or sub- lb. § 1191 et seq. mitted to, such treatment" "Tenendam ^ Higgon I). Coppinger, W. Jones, est sodomiam sufflcere ad divortium. Quia 320; Burn Ec. Law Buggery. sodomia e.st gravius delictum adulterio. ' Mogg !/'. Mogg, 2 Add. Ec. 292, 2 Eng. Si ergo ob adulterium permittitur divor- Ec. 311. See also Bromley v. Bromley, tinm ; idem a fortiori dicendum erit de sodomia." Sanchez, lib. 10, disp. 4, § 3. 7i35 § 1832 JUDICIAL DIVORCES. [BOOK VII^ the wife a dissolution of her marriage for the husband's adultery only when committed under aggravated circumstances, or coupled with cruelty or desertion, allows it to her for his mere " sodomy or beastiality." ^ § 1832. With us — the question has not been much legislated upon. In , perhaps two or three States sodomy or buggery is by name made ground for divorce.^ Whether it is a violation of the statutes against " adultery " or " cruelty " is a question which, so far as the present author is aware, has never been agitated in an American tribunal. 1 Ante, § 153, note. against nature, whether with mankind or ^ In Alabama, among the causes of beast, either before or after marriage." divorce, is " the commission of the crime Eey. Code of 1867, § 2351, 4 a. 756 CHAP. LII.j DISCRETION OF OOUET. § 1836 CHAPTER LTI. DIVORCE AT THE DISCRETION OP THE COURT. § 1833. Legislation Imperfect. — It is in the nature of a statute tliat it cannot meet the equity of every case which the legislators did not specifically foresee. And particularly our divorce statutes are liable to permit divorces which the body enacting them did not mean, or to exclude from their benefits cases which the en- acting body would have favored. To meet especially the omitted cases, legislative divorces have often been granted in our States, but we have seen ^ that they are waning in public favor. As a substitute for them, — § 1834. Judicial Discretion. — A few of our States have experi- mented upon permitting the judges to grant divorces partly or fully upon their discretion. The terms of the authorizing stat- utes have considerably varied. Kent observes that to the courts this jurisdiction must prove " exceedingly embarrassing and pain- ful in the exercise,"^ and this view of it has been confirmed by experience. On the whole, the experiment has not proved quite satisfactory, and in most of the States which have tried it, the authorizing statute has been repealed. Perhaps in a State or two it remains at the time of the present writing. Hence, § 1835. Exposition Brief. — Though it would be easy to make a somewhat minute exposition of the repealed statutes and the doings of the courts under them, it does not seem to be required. Possibly this sort of divorce, now practically dead, may come again into life, but the probabilities are at present adverse. Or § 1836. standard for Discretion. — If future wisdom can devise a standard for the judicial discretion, so that the course of the courts may be kept uniform and be known, and if the standard accords with the common judgment of mankind, we may have 1 Ante, § U22, 1428, 1429. 2 2 Kent Com. 105, note. 757 § 1839 JUDICIAL DIVORCES. [bOQK VII. under this head a new divorce rather than a resurrection of the old. And still, even under the repealed statutes, — § 1837. Nature of Discretion. — In no circumstances will a court, having a discretion, exercise it arbitrarily or after the mere pri- vate opinion of the presiding judge.^ Therefore the discr ' Ion given by these statutes was interpreted to be, not such as guides legislative bodies in enacting laws, but a judicial discretion, appro- priate to a judicial tribunal ; ^ and still the result would vary with the statutory terms, as expounded in connection with the entire divorce legislation of the State. For a brief retrospect,^ § 1838. In Maine, — in 1850, while the statutes permitted di- vorce for various specified offences, a provision was added ex- tending the remedy to " any facts tending to show that the divorce would be reasonable and proper, conducive to domestic harmony, for the good of the parties, and consistent with the peace and morality of society."^ Upon a later revision of the laws, the specific causes were omitted, and the judge was permitted to grant the divorce " when, in the exercise of a sound discretion, he deems it reasonable and proper, conducive to domestic har- mony, and consistent with the peace and morality of society."* In a yet later revision, these terms were retained, and some spe- cific offences were added. ^ § 1839. other States. — When this legislation prevailed in llli- •nois, the court was authorized to " hear and determine all causes for a divorce not provided for by any law of this State." ^ More definite was the Connecticut clause : "Any such misconduct as permanently destroys the happiness of the petitioner, and de- feats the purposes of the marriage relation." " These specimens of legislation will give the reader an idea of the rest. ^ Ante, § 709. glosses and pretences, and not to do ac- 2 Scroggins o. Scroggins, 3 Dev. 535 ; cording to their wills and private affec- Barden u. IBarden, 3 Dev. 548; Ritter a. tions." llooke's Case, 5 Co. 99 6, lOOn. Ritter, 5 Blackf. 81. " In all cases where And see Keighley's Case, 10 Cr 39 a, by law, whether statute or common law, 140 a. a subject is referred to the discretion of " Maine Stat. 1850, c. 171, § 2. And the court, that must be regarded as a see Stat. 1849, c. 116, and Stat. 1847, c. sounc? discretion, to be exercised according 13; Anonymous, 27 Me. 563; Ricker r to the circumstances of eadh particular Ricker, 29 Me. 281 ; Small v. Small, 31 case." Daniel, J. in C. v. Wyatt, 6 Rand. Me. 493 ; Motley v. Motley, 31 Me. 490. , 694, 701. " Discretion," it is said in Coke's * Maine R. S. of 1857, c. 60, § 2. Reports, "is a science or understanding to ^ Maine R. S. of 1871, t. 60. discern between falsity and truth, between ^ Lloyd v. Lloyd, 66 111. 87. wrong and right, between shadows and ' Trubee v. Trubee, 41 Conn. 36, 39. substance, between equity and colorable 758 CHAP. LII.] DISCRETION OP COURT. 1841 § 1840. Decisions thereon. — If any one should have occasion to look up the decisions of the courts on these statutes he may find help from the notes to the foregoing sections, and from the citations below.^ § ^841. In Conclusion, — taking leave of this experimental legis- lation, we cannot fail to notice that it has proved less popular than the much-discredited legislative divorce. And still if our divorce law could be made a little less rigid, or be administered jnore in compliance with natural equity, it would work a some- what ampler justice. 1 Ruby [.. Ruby, 29 Ind. 174; Scrog- III. 120; Hamaker r. Hamaker 18 111. gins V. Scroggius, 3 Dev. 535; Aiiony- 137, 65 Am. D. 705 , Barber i'. Barber, 14 mous, 27 Jle 563 ; Ricker v. Ricker, 29 Law Reporter, 375. The matter of this Me. 281 ; Small u. Small, 31 Me. 493 ; chapter is stated more at length in the Jlotley D. Motley, 31 Me. 490; Elwell v. author's "Marriage and Divorce," which Elwell, 32 Me. 337 ; Birkby v. Birkby, 15 this work supersedes. 759 END OF VOL. I.