QJoritf U ICam irtynnl ICibtary 
 
KF510.B62T873 ''"''•' '■''''''>' 
 
 V.I 
 
 '^"("'"entarres on the law of 
 
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/cu31924018807127 
 
COMMENTAEIES 
 
 ON THE LAW OP 
 
 MARRIAGE AND DIVORCE, 
 
 WITH THE 
 
 EVIDENCE, PEACTICE, PLEADING, AND FORMS; 
 
 SEPAEATIOI^S WITHOUT DIVOKCE, 
 
 AND OF THE EVIDENCE OF 
 
 MAERIAGE IN ALL ISSUES. 
 
 BY 
 
 JOEL PRENTISS BISHOP. 
 
 VOL. I. 
 
 FIFTH EDITION, EEVISED AND ENLARGED. 
 
 BOSTON: 
 
 LITTLE, BROWN, AND COMPANY. 
 
 1873. 
 
14^ 
 
 Entered according to Act of Congress, in the year 1864, by 
 
 JOEL PKEHTISS BISHOP, 
 
 In the Clerk's Office of the District Court of the District of Massachusetts ; 
 
 ALSO, 
 Entered according to Act of Congress, in the year 1873, by 
 
 JOEL PEENTISS BISHOP, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 5l0 
 
 \'0^ 
 
 oambkidgb: 
 peess op johh wilson and son. 
 
PEEF ACE 
 
 TO THE FIFTH EDITION. 
 
 This edition has been prepared in the following 
 manner. 
 
 First. It contains a citation of the authorities which 
 have appeared since the publication of the fourth 
 edition. 
 
 Secondly. I have carefully read every word as it stood 
 in the last edition, weighed anew every statement of the 
 law, considered anew every form of expression, and 
 made such alterations and corrections as seemed to be 
 required. 
 
 Thirdly. I have added such new matter, and such 
 new views of the old, as the accumulations of nine 
 years, and my studies and experience in legal author- 
 ship during that time, have enabled me to do. Those 
 nine years have been particularly prolific in this de- 
 partment of the law, and the added matter is in amount 
 not far from a fourth of a volume. 
 
 Fourthly. I have prefixed sub-heads to the sections, 
 and made a few, but not many, new divisions of chapters. 
 The numbering of the sections corresponds to that of 
 the fourth edition. 
 
 Fifthly. The Alphabetical Index of Subjects is con- 
 siderably enlarged. 
 
IV PREFACE TO THE FIFTH EDITION. 
 
 In the fourth edition, the work was enlarged from 
 one volume to two by adding discussions on pleading and 
 practice in divorce cases, separations without divorce, 
 and the evidence of marriage in issues other than of 
 divorce; the first three editions having been confined 
 to the law of marriage, and the law and evidence 
 in divorce causes. Consequently two volumes became 
 necessary in the place of one, and the whole matter was 
 in a measure rearranged, and the sections were re- 
 numbered. 
 
 This edition might properly enough be termed the 
 sixth, though it is numbered the fifth. The original 
 fourth edition, consisting of the number of copies which 
 had been printed for the several preceding editions, was 
 so quickly sold, and the general advance in the law of 
 the subject had then been so little, that it seemed neither 
 desirable in itself nor a fair thing to the profession to 
 put forth a new and revised edition, and solicit pur- 
 chasers for it from among those who possessed the 
 former edition. Consequently my set of the sheets, in 
 which I had made a few minor corrections, was put 
 into the hands of printers who produced a new impres- 
 sion while I was absent from the State, without my see- 
 ing the proofs ; and, to avoid misapprehension among 
 readers, this new impression was made to bear the old 
 date. I have been obliged to use the sheets of this im- 
 pression in preparing the present edition; they were 
 found to contain some errors of the press which I much 
 regret, but I trust I have succeeded in eliminating most 
 of them in the present revision. 
 
 It was a little more than twenty years ago that the 
 first edition of this work, in one volume, was published. 
 
PREFACE TO THE FIFTH EDITION. V 
 
 In it the author, then unknown to fame, and not far 
 advanced in years, undertook the labor of reducing a 
 discordant and heterogeneous mass of judicial decisions 
 and dicta to order, and drawing from the whole, and 
 from principles recognized in other departments of our 
 law, and from the fountains of natural justice, those 
 judicial rules which ought to govern the courts in future 
 marriage and divorce causes. How well or how poorly 
 the work was done it is not for me to say ; but it is a 
 simple fact patent to all who look into our reported 
 cases on this subject, that, since this work was published, 
 it has been the work, almost the only one, consulted by 
 practitioners and judges examining questions treated of 
 in it. Seldom, indeed, is any other elementary book 
 referred to in the opinions of our American courts in this 
 class of cases, delivered since the first edition of this 
 work appeared. It is the only book which has found 
 sufficient sale to justify publishers in keeping it in the 
 market ; though, at the time of its publication, there 
 were two English reprints and one American work 
 soliciting professional patronage. Its views have been 
 adopted by the courts, its language and forms of expres- 
 sion have been wrought into judicial opinions ; till, 
 at last, it has ceased to be what it was so peculiarly 
 at first, an aggressive work, and it seems now to have 
 taken the place which many deem to be the only one 
 appropriate for a legal treatise, that of the humble 
 rock, echoing the sounds of wisdom which fall upon 
 it, but sending forth no note of its own. 
 
 J. P. B. 
 
 Cambridge, June, 1873. 
 
CONTENTS OF YOLUME I. 
 
 Pagb 
 
 Index to Cases cited xv 
 
 BOOK I. 
 
 GENERAL VIEW OF THE LAW OF MARRIAGE AND 
 DIVORCE. 
 
 Chapteb Section 
 
 I. The Law of Marriage 1-20 
 
 II. The Law of Divorce 21-47 
 
 BOOK 11. 
 
 THE SOURCES OF AUTHORITY IN OUR MARRIAGE AND 
 DIVORCE LAW. 
 
 III. The English Ecclesiastical Law 48-65 a 
 
 48, 48 a. Introduction. 
 
 49-55. History, Sources, and Nature of the Ecclesiastical 
 Law. 
 
 56, 57. Ecclesiastical Law as a Part of the Common Law. 
 
 58-62. Books of the Ecclesiastical Law. 
 
 63-65 a. Ecclesiastical Judges, their Decisions, Practice, the 
 New Court. 
 
 IV. The Common Law of Marriage and Divorce in 
 
 THE United States 66-86 
 
 66, 65 a. Introduction. 
 
 67, 68. Common Law independent of Courts. 
 
VUl CONTENTS OP VOLUME I. 
 
 Chapter Sbotios 
 
 69, 70. Courts the Offspring of Legislation. 
 71-77. How as to Marriage and Divorce Law. 
 78-86. How as to Practice in Matrimonial Causes. 
 
 V. The Statdtoet Law of Mabeiage and Di- 
 
 VOECE IN THE UNITED StATES 86 a-lOi 
 
 BOOK III. 
 
 IMPERFECTIONS IN THE CONSTITUTION OE THE MAR- 
 RIAGE. 
 
 VI. The Distinction op Void and Voidable . .104a-120 
 
 104 a, 104 b. Introduction. 
 
 105-111. Nature and History of the Distinction. 
 
 112-115. What Marriages are Voidable, what Void. 
 
 116-118. Effect of a Voidable Marriage, and of its Disso- 
 lution. 
 
 119, 120. English and American Statutes. 
 
 VII. General View of the Essentials bnteeing 
 
 into a Valid Marriage 121-123 
 
 VIII. Want of Mental Capacity 128a-142 
 
 123 a. Introduction. 
 124-129. The Subject in its General Aspect. 
 130-135 a. Particular Applications of Doctrine. 
 136-142. Confirmation, and whether Void or Voidable. 
 
 IX. Want of Age 143-153 
 
 X. The Impediment of Slavery and the Effect 
 
 of Emancipation 163a-1636 
 
 XI. Feaud, Error, Duress 164-215 
 
 164. Introduction. 
 
 165-205. Fraud. 
 
 206-209. Error. 
 
 210-213. Duress. 
 
 214, 215. Some Principles Common to the Three Im- 
 pediments. 
 
 XII. Imperfect Consent to a Marriage other- 
 wise Good 216-267 
 
 216,217. Introduction. 
 
 218-228. The Consent essential to Marriage. 
 
CONTENTS OP VOLUME I. 
 
 IX 
 
 Chaptee Skotioh 
 
 229-232. The Consent how given in Absence of a Spe- 
 cific Requirement of Law. 
 
 233-245. Consent in Form but not in Fact. 
 
 246-252. Further Views of Consent per Verba de Prce- 
 senti. 
 
 253-265. Consent^er Verba de Futuro mm Copula. 
 
 266, 266 a. Consent by Habit and Eepute. 
 
 267. Effect of this Impediment of Imperfect Con- 
 
 sent. 
 
 XIII. Formal Solemnization of the Maeeiagb . 268-292 
 
 268. Introduction. 
 
 269-282 a. Whether any and what Forms are required 
 by the Common Law. 
 
 283-289. How Statutes concerning the Forms are to be 
 interpreted. 
 
 290-292. Some Particular Provisions of Statutory Law. 
 
 XIV. The Consent of Parents 293-295 
 
 XV. The Impediment of a Prior Marriage un- 
 dissolved 296-303 
 
 XVI. Impediments following Divorce .... 304-307 a 
 XVII. Impediments of Race and of Civil Condi- 
 tion 308-311 
 
 XVIII. Consanguinity and Affinity 312-320 
 
 XIX. Impotence, or Physical Incapacity . . . 321-340 
 
 321. Introduction. 
 322-324. General View of the Doctrine. 
 325-330. As to Procreation and Copulation. 
 331-338 b. Further Specific Doctrines. 
 339-340. Effect of the Impediment, and Statutes. 
 
 XX. Penal Consequences of Wrongful Acts 
 connected with the Solemnization of 
 Marriage 341-347 
 
 341. Introduction. 
 341 a. As to the Parties. 
 842-347. As to Third Persons. 
 
 XXI. Conflict of Marriage Laws as to the 
 
 Inception of the Status 348-400 
 
 348, 349. Introduction. 
 
 350-370. General Doctrine. 
 
 371-389. Marriage good where celebrated, good every- 
 where. 
 
 390-400. Invalid where]celebrated, everywhere invalid. 
 
 XXII. Suggestions as to the Conflict in Respect 
 
 TO Property Rights 401-407 
 
CONTENTS OF VOLUME I. 
 
 BOOK IV. 
 
 HOW MARKIAGE OR LEGITIMACY IS ESTABLISHED IN 
 
 EVIDENCE. 
 
 Chaptek Section 
 
 XXIII. Pkeliminaet Inqtiikt as to the Proof of 
 
 FoEEiGN Laws 408-431 
 
 XXIV. The Presumptions which attend the 
 
 OTHER Proofs of Marriage .... 432-459 
 
 432, 433. Introduction. 
 
 434-449. Presumption of Innocence. 
 
 450,451. Presumption that Official Persons have 
 done their Duty. 
 
 462-456. Presumption of Life. 
 
 457-459. General Presumption favoring Marriage. 
 
 XXV. Records and Certificates of Marriage, 
 AND the Like, considered as Evidence 
 of the Recorded Fact 460-481 ' 
 
 460-462. Introduction. 
 
 463-469. What is a Sufficient Record. 
 
 470. What a Sufficient Certificate of the Rec- 
 ord. 
 
 471-473. Certificates, not of a Record of Marriage, 
 but of Marriage. 
 
 473 a. Private Memoranda in the Nature of 
 Records. 
 
 474-478. Special Considerations as to Foreign Rec- 
 ords. 
 
 479-481. Proofs ancillary to the Record. 
 
 XXVI. Further as to the Proof of what is 
 
 called a Fact op Marriage .... 482-502 
 
 482-484. Introduction. 
 
 485, 486. General View of the Marriage in Fact. 
 
 487-493. Circumstantial Evidence in Proof of it. 
 
 494-496. Direct Evidence other than by the Rec- 
 ord. 
 
 497-502. Confessions and Admissions of the Party. 
 
 XXVII. Effect on the Proofs of showing an 
 Illicit Commencement to the Cohabi- 
 tation 503-518 
 
CONTENTS OP VOLUME I. 
 
 XI 
 
 Chapter 
 
 XXVIII. Special Vie-ws of the Peoofs -where the 
 
 Sbotion 
 
 Solemnization ■was in a Foreign State 519-536 
 
 519, 520. Introduction. 
 
 521-528. Fact of Marriage abroad, without Proof of 
 
 Foreign Law. 
 629-533. What the Proper Proof of Foreign Marriage 
 
 Law. 
 
 534. Burden of Proof as to Foreign Law. 
 635, 536. Bemaining Points. 
 
 XXIX. Some Remaining Questions as to the 
 
 Proof of Marriage 537-545 
 
 XXX. Some Remaining Questions as to the 
 
 Proof of Legitimacy 546-549 
 
 BOOK V. 
 
 SEPARATIONS WITHOUT JUDICIAL SENTENCE. 
 
 XXXI. The General Duty of the Husband to 
 
 support the Wife in Cohabitation . . 550-558 
 XXXn. The Husband's Lawful Temporary Ab- 
 sence from the Common Habitation . 559-567 
 
 XXXIII. Separations through the Husband's 
 
 Fault 568-572 
 
 XXXIV. Separations through the Wipe's Fault 573-577 
 XXXV. Separation by Mutual Consent .... 578-580 
 
 XXXVI. . Doctrines common to the several Forms 
 
 OF Separation by Parol 581-629 
 
 581-582 a. Introdttction. 
 583-612. Wife after Separation as Feme Sole, 
 613-629. Other Particular Topics. 
 
 XXXVII. Separation under Articles 630-656 
 
 630. Introduction. 
 
 631-633. The Doctrine in Legal Principle. 
 
 634-638. The Doctrine as held in England. 
 
 639-656. The Doctrine as received in our several 
 States. 
 
XU CONTENTS OP VOLUME I. 
 
 BOOK VI. 
 
 LEGISLATIVE MARRIAGES AND DIVORCES. 
 
 Chaptbb Section 
 
 XXXVIIL Legislative Markiages 657-659 
 
 XXXIX. Legislative Divorces 660-695 a 
 
 660. Introduction. 
 661-664. General View of the Subject. 
 
 665-669. Whether Legislative Divorces impair Ob- 
 ligation of Contracts. 
 670-679. Whether they are Retrospective Laws. 
 
 680-686. Whether they are an Exercise of Judicial 
 Power. 
 687-692 a. Special Principles and direct Constitutional 
 Inhibitions. 
 
 693-696 a. How this Divorce limited in its Effect. 
 
 BOOK VII. 
 
 JUDICIAL DIVORCES. 
 
 XL. Whether a General Statute mat au- 
 thorize Divorce for Causes already 
 
 EXISTING 696-699 
 
 XLI. Further Preliminary Views .... 700-702 
 
 XLIL Adultery 703-713 
 
 XLIIL Cruelty 714-770 
 
 714. Introduction. 
 
 715-721. Definition and Nature of Legal Cruelty. 
 
 722-753. Particular Propositions connected with the 
 General Doctrine. 
 
 754-760. Relative Eights and Duties of Husband and 
 Wife. 
 
 761-763. Cruelty by the Wife to the Husband. 
 
 764-768. Effect of 111 Conduct in the Complaining 
 
 769, 770. Distinction between the Law and the Evi- 
 dence. • 
 
CONTENTS OP VOLUME I. XIU 
 
 OHAPTETt ShOTIOW 
 
 XLIV. Desertion 771-811 
 
 771-776. Introduction. 
 777-782. The Ceasing to cohabit. 
 783-794 a. The Intent to desert. 
 795-808. The Justification. 
 809, 810. Continuity of the Desertion. 
 
 811. Distinction between the Law and the Evi- 
 
 dence. 
 
 XLV. Other Specific Causes of Divorce . . . 812-826 
 
 812. Introduction. 
 
 813, 813 o. Habitual Drunkenness. 
 
 814. Drunkenness with Wasting of the Estate. 
 815, 816. Gross Neglect of Duty. 
 817-821. Refusing to maintain, being of Ability. 
 
 822. Uniting with Shakers. 
 
 823. Conviction for Crime. 
 
 824. Absent and not heard of. 
 
 824 a. Gross Misbehavior and Wickedness. 
 
 825. Desertion and Living in Adultery. 
 
 826. Oflering Indignities. 
 
 XLVI. The Discretion of the Court 827-836 
 
INDEX 
 
 TO THE CASES CITED IN BOTH VOLUMES. 
 
 Note. — Where the plaintiff is the King or Queen (Eex or Eegina, abbreviated 
 Eeg.), the State, People, Commonwealth, United States, or the like, the name of the 
 defendant is, in the following list, put first; such names as In re Jones, Estate of Jones, 
 &c., are indexed, Jones, In re, Jones, Estate of, &c. Otherwise the cases stand here 
 in their natural and unreversed order. The reference letters refer to the volume, and 
 figures to the section. 
 
 Sectiok 
 A. V. B., (Law Eep. 1 P. & M. 
 
 559) i. 112, 339 
 
 (1 Spinks, 12) i. 335; ii. 558 a 
 
 Abbey, State v. (29 Vt. 60) i. 424, 495 
 Abbot V. Bayley (6 Pick. 89) i. 601 
 Abbott V. Abbott (4 Swab. & T. 
 
 254) ii. 271 a 
 
 V. Mackinley (2 Miles, 220) i. 557 
 
 Abellw. Douglass (4Denio, 805) i. 412 
 Abernathy v. Abernathy (8 Fla. 
 
 243) i. 582; ii. 287 
 
 Abey v. Abey (32 Iowa, 575) ii. 457 
 Abington v. North Bridgewater 
 
 (23 Pick. 170) i. 540; ii. 119 
 
 Ableman v. Booth (21 How. 
 
 U. S. 506) ii. 157 
 
 Acre V. Eoss (3 Stew. 288) ii. 744 
 
 Adams v. Adams (2 C. E. 
 
 Green, 324) ii. 94, 618 
 
 V. Adams (1 Duvall, 167) 
 
 ii. 532, 534 
 
 V. Adams (100 Mass. 365) 
 
 i. 754 ; ii. 352 
 
 V. Adams (20 N. H. 299) ii. 608 
 
 V. Adams (51 N. H. 388) 
 
 ii. 753 a, 753 c, 760, 762 
 
 V. Adams (16 Pick. 254) ii. 606 
 
 V. Outright (53 111. 361) i. 347 
 
 «. Gay (19 Vt. 358) i. 414, 424 
 
 V. Hurst (9 La. 243) i. 707 ; 
 
 u. 337 
 
 V. Palmer (51 Maine, 480) 
 
 i. 669, 684, 692 a 
 , Adams, State v. (65 N. C. 
 
 537) i. 163 a 
 
 Adamson, Rex v. (Sav. 56) ii. 253 
 Addicks, Commonwealth v. (5 
 
 Binn. 520) ii. 533 
 
 Section 
 Addicks, Commonwealth v. (2 S. 
 
 & R. 174) ii. 533 
 
 Addison v. Bowie (2 Bland, 606) 
 
 ii. 528 
 Ahrenfeldt v. Ahrenfeldt (Hoff- 
 man, 47) i. 777, 783, 784, 821 ; ii. 674 
 
 I). Ahrenfeldt (Hoffman, 
 
 • 497) ii. 529, 530, 532, 534 
 
 Aiman u. Stout (6 Wright, Pa. 
 
 114) i. 128 
 
 Albee v. Wyman (10 Gray, 222) 
 
 ii. 479, 722 
 Aldis V. Chapman (1 Selw. N. P. 
 
 11th ed. 298) i. 570 
 
 Aldridge, Ex parte (1 Swab. & 
 
 T. 88) i. 783, 810 
 
 V. Montgomery (9 Ind. 
 
 302) ii. 308 
 
 Aleson v. Aleson (2 Lee, 576) 
 
 ii. 585, 594 
 Alexander v. Alexander (31 Ala. 
 
 241) i. 430 
 V. Alexander (2 Swab. & T. 
 
 95) ii. 311, 618, 646 
 V. Alexander (2 Swab. & T. 
 
 385) i. 778 ; ii. 321, 498 
 
 V. Miller (4 Harris, Pa. 215) 
 
 i. 662, 565, 566 
 V. Torrence (6 Jones, N. C. 
 
 260) i. 418, 430 
 
 Allan V. Toung (Eerg. 37) i. 201 
 
 Allen V. Aldrich (9 Post. N. H. 
 
 63) i. 568, 570, 573, 610 
 
 V. Allen (Hemp. 58) ii. 346, 408 
 
 V. Allen (100 Mass. 373) 
 
 ii. 499, 500 
 
 V. Allen (2 Swab. & T. 107) 
 
 ii. 412 
 
ANO 
 
 INDEX TO THE CASES CITED. 
 
 ASH 
 
 Section 
 Allen V. Coster (1 Beav. 202) ii. 529 
 
 V. Hall {2 Nott & McC. 114) 
 
 i. 494, 538, 541 
 
 V. Maclellan (2 Jones, Pa. 
 
 328) ii. 763, 753 (i, 760, 761, 762 
 
 V. Watson {2 Hill, S. C. 
 
 319) i. 411, 415, 422, 424 
 
 AUis V. Billings (6 Met. 415) i. 140 
 Allison, Rex v. (Russ. & Rv. 109) 
 
 i. 483 
 Almond u. Almond (4 Rand. 
 662) i. 71, 719, 791 ; ii. 291, 355, 
 358, 362, 427 
 Alna V. Plummer (4 Greenl. 258) i. 566 
 Altemus's Case (1 Ashm. 49) ii. 725 
 Aires V. Hodgson (7 T. R. 241) i. 635 
 Ambrose v. Kerrison (4 Eng. L. 
 
 & Eq. 361 ; 10 C. B. 776) 1. 565 
 Ames V. Chew (5 Met. 320) 
 
 1. 582, 601 ; ii. 732 
 
 V. Norman (4 Sneed, 683) 
 
 ii. 716 
 Amory v. Amory (6 Rob. N. T. 
 
 514) i. 300, 537 
 
 Amos V. Amos (3 Green Ch. 171) 
 
 ii. 302, 398, 429, 457, 459, 461, 495 
 Amsden v. Amsden (Wright, 66) 
 
 ii. 472, 678 
 Anderson v. Anderson (1 Edw. 
 Ch. 380) i. 650 
 
 V. Anderson (4 Greenl. 100) 
 
 ii. 237, 639 
 
 Andrews v. Andrews (5 S. & R. • 
 
 374) ii. 260 
 
 V. Pond (13 Pet. 65) i. 402 
 
 V. Russell (7 Blackf. 474) 1. 101 
 
 Angier v. Angler (1 Gilb. Ch. 
 152) ii. 352, 358 
 
 V. Angier (7 Philad. 305) i. 789 
 
 Angle V. Angle (12 Jur. 525) 
 
 ii. 18, 22, 23 
 
 V. Angle (1 Robertson, 634) 
 
 ii. 49, 103, 104 
 Anichini v. Anichini (2 Curt. Ec. 
 
 210) i. 804 ; ii. 5, 22, 98 
 
 Annice, State v. (N. Chip. 9) i. 442 
 Anonymous (35 Ala. 226) i. 332 ; ii. 593, 
 
 594 a 
 
 (2 Atk. 210) ii. 505 
 
 (Deane & Swabey, 295) 
 
 i. 116 ; ii. 264, 582, 583, 594 
 
 (2 Des. 198) ii. 361, 363 
 
 (4 Des. 94) i. 764; ii. 358, 359, 
 
 531, 533, 552 
 (1 Dyer, 13, pi. 61) ii. 690 
 
 Section 
 Anonymous (27 Maine, 563)_ i. 827, 
 
 834 
 
 (22 Eng. L. 
 
 ■ (1 Hayw. 347) 
 . (5 How. N. Y. 
 
 ■ (Loflft, 314) 
 
 ■ (Loflt, 328) 
 
 xvi 
 
 Eq. 637) 
 i. 335 ; ii. 588 a 
 ii. 355, 501 
 Pract. 306) 
 
 , ii. 235 
 
 ii. 75 
 i. 472 
 
 (5 Mass. 197) 
 
 (6 Mass. 147) 
 
 (9 Mod. 43) 
 
 (4 Pick. 32) 
 
 2 P. Wms. 75) 
 
 (5 Rob. N. T. 611) 
 
 (2 Salk. 566) 
 
 (2 Show. 132) 
 
 (2 Show. 282) 
 
 ii. 314, 329 
 
 ii. 173, 314 
 
 ii. 33, 38, 39 
 
 ii. 733 
 
 i. 127 ; ii. 564 
 
 i. 68 
 
 ii. 642 
 
 i. 421 
 
 i. 554 
 
 ii. 353 
 
 ,2 Sim. N. s. 54; 11 Eng. 
 
 L. & Eq. 281) ii. 529, 533, 640 
 
 (1 Stra. 315) i- 83 
 
 (2 Ves. sen. 489) ii. 506 
 
 (19 Wend. 16) ii. 529, 546 
 
 Anquez v. Anquez (Law Rep. 1 
 
 P.&M. 176) i. 634, 771, 805 6 
 
 Anshutz V. Anshutz (1 C. E. 
 
 Green, 162) ii. 355, 856 
 
 Anstey v. Manners (Gow, 19) 
 
 ii. 690, 694 
 Anthony v. Anthony (30 Law J. 
 
 N.s. Mat. 20g) ii. 539 
 V. Anthony (3 Stock. 70) ii. 407 
 
 V. Anthony (1 Swab. & T. 
 
 594) ii. 768 
 
 V. Smith (4 Bosw. 503) ii. 659 
 
 Appleton V. Warner (51 Barb. 
 
 270) i. 299 
 
 Arbery v. Ashe (1 Hag. Ec. 214) 
 
 ii. 563 
 Archer v. Haithcock (6 Jones, 
 
 N. C. 421) i. 442, 445 
 
 Archey v. Stephens (8 Ind. 411) 
 
 ii. 563 
 Arden, State v. (1 Bay, 487) ii. 590 
 Arkley v. Arkley (3 Phillim. 500) 
 
 ii. 80, 623 
 Armant v. Her Husband (4 La. 
 
 An. 137) i. 724 
 
 Armstrong v. Armstrong (35 111. 
 109) ii. 552 
 
 V. Armstrong (27 Ind. 186) 
 
 ii. 53, 318 
 
 V. Armstrong (32 Missis. 
 
 279) ii. 45, 49, 242, 250, 300, 472, 
 
 635 
 
 V. Hodges (2 B. Monr. 69) 
 
 i. 266, 512 
 
 V. M'Ghee (Addison, 261) 
 
 1.238 
 
 V. Stone (9 Grat. 102) il. 527 
 
 Arnold v. Earle (2 Lee, 529) 1. 144 
 Arthur v. Broadnax (3 Ala. 557) 
 
 i. 442, 595 
 
 V. Gourlay (2 Paton, 184) 
 
 i 723 781 
 Ash V. Way (2 Grat. 203) ' i.' 548 
 Ashbaugh v. Ashbaugh (17 111. 
 
 476) ii. 127, 211, 682 
 
 Ashe's Case (Pr. Ch. 703) 1. 140 
 
BAI 
 
 INDEX TO THE CASES CITED. 
 
 BAR 
 
 Section 
 Ashley v. Ashley (2 Swab. & T. 
 288) ii. 321 
 
 V. Root (4 Allen, 504) i. 424 
 
 Ashton V. Ashton (1 Eep. Ch. 
 
 164) ii. 353 
 
 Askew V. Dupree (30 Ga. 173) 
 
 i. 253, 287, 667 
 Astley V. Astley (1 Hag. Ec. 714) 
 
 ii. 80, 89, 626, 642 
 Athlone Peerage Case (.8 CI. & F. 
 
 262) i. 478 
 
 Atkins V. Atkins (reported i. 729, 
 
 note), i. 726, 750, 754 ; ii. 278, 285 
 
 V. Curwood (7 Car. & P. 
 
 756) i. 553, 554, 556 
 
 Atkinson v. Atkinson (2 Add. Ec. 
 484) ii. 285 
 
 V. Barnard (2 Phillim. 316) 
 
 ii. 739 
 
 V. Medford (46 Maine, 510) 
 
 i. 128, 186 
 Atkyns v. Pearce (2 C. B. sr. s. 
 
 763) i. 574 
 
 Attorney-General v. Dean and 
 Canons of Windsor (8 H. L. 
 Cas. 369) i. 278 
 
 Auditor, People v. (1 Scam. 537) 
 
 i. 667, 677 
 Aughtie V. Aughtie (1 Phillim. 
 
 201) i. 105, 316; ii. 265, 376, 647 
 Austin V. Austin (10 Conn. 221) 
 
 ii. 19, 346 
 Avery v. Avery (12 Texas, 54) i. 405 
 Aveson v. Kinnaird (6 East, 188) ■ 
 
 ii. 660, 723 
 Ayer v. Ayer (16 Pick. 327) 
 
 i. 570; ii. 741 
 
 V. Warren (47 Maine, 217) i. 600 
 
 Aymar v. Roflf (3 Johns. Ch. 49) 
 
 i. 148, 150 
 Ayrey v. HUl (2 Add. Ec. 206) ii. 563 
 
 B. V. B. (28 Eng. L. & Eq. 95) 
 
 • • i. 822, 327 ; ii. 583 
 
 B. w. L. (Law Eep. 1 P. & M. 
 
 639) ' ii. 594 
 
 B. V. M. (2 Robertson, 580) ii. 583 
 Babcock v. Smith (22 Pick. 61) ii. 717 
 Babe v. Hanna (5 Ohio, 530) i. 626 
 Bachelor v. Bachelor (1 Mass. 
 
 256) ii. 315 
 
 Backus V. Backus (3 Greenl. 
 
 136) ii. 38, 884, 338 
 
 Bacon v. Bacon (Law Rep. 1 P. 
 
 & M. 167) ii. 526, 532 
 V. Bacon (2 Swab. & T. 
 
 53) ii. 256, 258, 519 
 
 Bailey, Ex parte (6 Dowl. P. C. 
 
 311) ii. 546 
 
 V. Bailey (21 Grat. 43) 1. 777 ; 
 
 ii. 446 
 
 VOL. I. , 
 
 Section 
 Bailey v. Bailey (97 Mass. 378) i. 729, 
 
 7336 
 V. Fiske (34 Maine, 77) i. 808 
 
 V. McDowell (2 Harring. 
 
 Del. 84) i. 424 
 
 Baily v. Baily (1 Lee, 536) ii. 30 
 
 Bain v. Bain (2 Add. Be. 253) ii, 424 
 Bainbridge v. Pickering (2 W. 
 
 Bl. 1325) ii. 528 
 
 Baird v. Campbell (4 Watts & S. 
 191) ii. 753 e 
 
 , State w. (3 C. E. Green, 194) 
 
 ii. 546 
 
 Baker v. Baker (18 Cal. 87) i. 187, 
 
 190, 548 ; ii. 245, 251 
 
 V. Baker (3 Swab. & T. 213) 
 
 ii.282a 
 
 V. Barney (8 Johns. 72) 
 
 i. 578, 819 ; ii. 401 
 
 V. Keen (2 Stark. 501) ii. 528 
 
 V. People (2 Hill, N. Y. 825) 
 
 ii. 700 
 Baldwin v. Baldwin (2 Harring. 
 Del. 196) ii. 312 
 
 V. Baldwin (6 Gray, 341) 
 
 ii. 419 
 Balfour v. Carpenter (1 Phillim. 
 
 221) i. 294 
 
 Ball V. Ball (3 Phillim. 147) ii. 582 
 
 v. Ball (2 Sim. 35) ii. 529, 546 
 
 V. Mannin (8 Bligh, n. s. 1) 
 
 i. 125 
 
 ' V. Montgomery (2 Ves. 191) 
 
 ii. 352 
 Ballentine v. Ballentine (1 Halst. 
 
 Ch. 471) ii. 406 
 
 Banbury Peerage Case (1 Sim. & 
 
 S. 153) i. 447 
 
 Bancroft v. Bancroft (4 Swab. & 
 
 T. 84) ii. 82 
 
 V. Dumas (21 Vt. 456) ii. 75 
 
 Baner v. Day (8 Wash. C. C. 
 
 243) i. 478 
 
 Banfort, State v. (2 Rich. 209) i. 106 
 Banks v. GoodfeUow (Law Rep. 
 
 5 Q. B. 549) i. 126 
 
 , State V. (25 Ind. 495) ii. 546 
 
 Bankston v. Bankston (27 Missis. 
 
 692) ii. 351, 433, 448, 492, 497 
 
 Baptiste v. De Volunbrun (5 Har. 
 
 6 J. 86) i. 409 
 Barber v. Barber (16 Cal. 378) i. 304 
 
 V. Barber (1 Chand. 280) 
 
 ii. 202, 429, 499, 787 
 
 V. Barber (21 How. U. S. 
 
 582) i. 87 ; ii. 125, 203, 499 
 
 V. Barber (14 Law Reporter, 
 
 375) i. 818, 834 ; ii. 7 
 
 V. Root (10 Mass. 260) ii. 141, 
 
 144, 198, 282, 712, 754 
 
 Barbour v. Barbour (46 Maine, 
 9) ii. 708 
 
 xvii 
 
BAS 
 
 INDEX TO THE CASES CITED. 
 
 BEE 
 
 Section 
 Barden v. Barden (3 Dev. 548) i. 830 ; 
 
 ii. 687 
 
 V. Keverberg (2 M. & W. 
 
 61) i. 591, 592 
 
 Barham v. Barham (1 Hag. Con. 
 
 5) ii. 303, 305 
 
 Barker v. Barker (2 Add. Ec. 
 
 285) ii. 5, 25 
 
 V. Cobb (36 N. H. 344) ii. 518 
 
 V. Dixie (Cas. temp. Hardw. 
 
 264) ii. 723 
 
 Barkman v. Hopkins (6 Eng. 167) 
 
 i. 424 
 Barkshire v. State (7 Ind. 389) i. 310 
 Barlee v. Barlee (1 Add. Ec. 301) 
 
 i. 29, 634, 717, 722, 771, 804, 806 
 Barnes v. Allen (30 Barb. 663) 
 
 i. 573, 626 
 
 V. Barnes (Law Eep. 1 P. 
 
 & M. 463) ii. 533 
 V. Barnes (Law Rep. 1 P. & 
 
 M. 505) .ii. 28a 
 V. Barnes (Law Rep. 1 P. & 
 
 M. 572) ii. 82 
 
 V. Barnes (Wright, 475) ii. 38, 50 
 
 V. Camack (1 Barb. 392) ii. 723 
 
 V. Wyetlie (28 Vt. 41) i. 175, 245 
 
 Harnett v. Kimmell (11 Casey, 
 
 Pa. 13) i. 222, 253 a 
 
 Barney v. Dimmitt (Wright, 44) 
 
 i. 131 
 Barnliard, State v. (2 West. Law 
 
 Jonr. 301 ; Page on Div. 153) i. 754 
 Barnsley, Ex parte (3 Atk. 168) i. 125 
 Baron de Bode's Case (8 Q. B. 
 
 208) i. 428 
 
 Barr v. Barr (31 Ind. 240) ii. 318 
 
 V. Fairie (5 Mor. Sup. 921) i. 202 
 
 Barratt u. Buxton (2 Aikens, 
 
 167) i. 131 
 
 Barrere v. Barrere (4 Johns. Ch. 
 
 187) i. 29, 71, 77,740; ii. 228, 
 
 457, 472, 495, 530, 532, 533, 
 552, 729 
 Barrs v. Jackson (1 Y. & Col. C. 
 
 C. 585) ii. 748, 757 
 
 Barry v. Barry (1 Hopkins, 118) 
 
 ii. 235 
 
 W.Randolph (3 Binn. 277) i. 83 
 
 Bartlett v. Bartlett (Clarke, 460) 
 
 ii. 376, 394, 403 
 Barton v. Morris (15 Ohio, 408) i. 212 
 Harwell v. Brooks (3 Doug. 371) i. 591 
 Bascom v. Bascom (7 Ohio, 2d 
 
 pt. 125) ii. 260 
 
 V. Bascom (Wright, 632) 
 
 i. 754, 768; ii. 250, 354, 376, 532 
 Bascomb v. Bascomb (5 Fost. N. 
 
 H. 267) i. 96, 332, 339 a 
 
 Bashaw v. State (1 Yerg. 177) i. 279 
 Basing v. Basing (3 Swab. & T. 
 
 616) i. 810 
 
 xviii 
 
 Seciioit 
 Batchelder v. Batchelder (14 N. 
 
 H.380) i. 813; ii. 173, 332, 344, 682 
 Bates V.Kimball (2 D. Chip. 77) i. 676 
 Battey o. Battey (1 R. L 212) 
 
 ii. 355, 358, 446 
 Batthews v. Galindo (4 Bing. 
 
 610; 3 Car. & P. 238) i. 5*2 
 
 Baughau v. Graham (1 'How. 
 
 Missis. 220) !• 424 
 
 Bauman o. Bauman (18 Ark. 
 
 320) "i. 71; ii. 429, 431, 500 
 Bawden v. Bawden (2 Swab. & 
 
 T. 417) ii. 305 
 
 Baxtar v. Buckley (1 Lee, 42) 
 
 i. 112, 272 
 Baxter v. Baxter (1 Mass. 346) ii. 241 
 
 V. Portsmouth (5 B. & C. 
 
 170) i. 125; ii. 566 
 
 , Reg. V. (2 U. C. Q. B. 
 
 370) ii. 548 
 
 Bayard v. Morphew (2 Phillim. 
 
 321) '^ ^ i. 299 
 Baylis v. Baylis (Law Rep. 1 P. 
 
 & M. 395) ■ i. 179 ; ii. 82 
 
 Bayly v. Bayly (2 Md. Ch. 326) 
 
 ii. 508 
 Beach v. Beach (2 HiU, N. Y. 
 
 260) i. 650 
 
 V. Beach (11 Paige, 161) 
 
 ii. 327, 623 
 
 V. WoodhuU (Pet. C. C. 2) i. 670 
 
 V. Workman 20 N. H. 379) 
 
 i. 424 
 Beal.i;. Smith (14 Texas, 305) i. 409 
 Beamish v. Beamish (9 H. L. 
 Cas. 274) i. 270, 289, 392 
 
 w. Beamish (1 Jur. N. s. 455) 
 
 i. 278, 289 
 Bean v. Briggs (4 Iowa, 464) 
 
 i. 411, 418 
 
 V. Morgan (4 McCord, 148) i. 607 
 
 Beard v. Basye (7 B. Monr. 133) 
 
 i. 402,405,406 
 
 V. Beard (21 Ind. 321) 
 
 ii. 156, 163 a,- 170 
 
 0. Webb (2 B. & P. 93) 
 
 i. 584; ii. 438 
 Beatty v. Beatty (Wright, 557) i. 750 
 Beauchamp u. Mudd (Hardin, 
 
 163) i. 409 
 
 Beauraine v. Beauraine (1 Hag. 
 
 Con. 498) ii. 306 
 
 Becket v. Becket (17 B. Monr. 
 
 370) i. 773 ; ii. 682 
 
 Bedell v. Bedell (1 Johns. Ch. 
 
 604) i. 765 ; ii. 80, 228, 457, 
 
 472, 532, 552 
 Bedle v. Beard (12 Co. 4) i. 516 
 
 Beebe v. Beebe (10 Iowa, 133) 
 
 i. 729, 730, 762, 763 
 Beeby v. Beeby (1 Hag. Con. 
 
 142) i. 634 ; ii. 88 
 
BER 
 
 INDEX TO THE CASES CITED. 
 
 BIS 
 
 Section 
 Beeby v. Beeby (1 Hag. Ec. 789) 
 
 ii. 37, 38, 46, 49, 61, 76, 87, 97, 
 389, 635 
 Beekman v. Saratoga and Sche- 
 neutady Eailroad (8 Paige, 
 45) i. 679 
 
 Begbie v. ^egbie (3 Halst. Ch. 
 
 98) ii. 482 
 
 Belcher v. Belcher (1 Curt. Ec. 
 444) . ii. 387, 394 
 
 V. Belcher {Phillim. pamph.) i. 332 
 
 V. State (8 Humph. 63) i. 825 
 
 Beldeu i/. Belden (5 Minn. 211) 
 
 ii. 237 a 
 Belgard, Commonwealth v. (5 
 
 Gray, 95) i. 515 
 
 Bell V. Eaton (28 Ind. 468) i. 170 
 
 V. Hallenback (Wright, 751) 
 
 ii 528 
 
 V. Jones (10 Md. 322) ii. 421 
 
 V. Nealy (1 Bailey, 312) i. 627 
 
 V. Perkins (Peck, 261) i. 674 
 
 Bemis v. McKeuzie (13 Ela. 553) i. 411 
 Benadum v. Pratt (1 Ohio State, 
 
 403) i.605; ii. 737 
 
 Benjamin v. Benjamin (15 Conn. 
 
 347) i. 557, 562 
 
 Benkert v. Benkert (32 Cal. 467) 
 
 i. 773, 810 
 Bennett v. Bennett (Deady, 299) 
 
 ii. 128 a 
 V. Judson (21 N. Y. 238) i. 173 
 
 V. Smith (21 Barb. 439) 
 
 i. 145, 568, 626 ; ii. 673 
 
 V. State (Mart. & Yerg. 183) i. 131 
 
 u. Stokes (2 Misso. 69) ii. 401 
 
 V. Toler (15 Grat. 588) ii. 547 
 
 Bennie v. Bennie (11 Scotch Sess. 
 
 Cas. N. s. 1211) ii. 149 
 
 Benson v. Remington (2 Mass. 
 
 113) ii. 528 
 
 V. Welby (2 Saund. "Wms. 
 
 ed. 154) i. 422 
 
 Bent V. Bent (2 Swab. & T. 392) 
 
 ii. 519, 538 
 Bentley v. Griffin (5 Taunt. 356) i. 617 
 Benton v. Benton (1 Day, 111) 
 
 i. 178, 323, 824 
 Berckmans v. Berckmans (1 C. 
 E. Green, 122 ; 2 C. E. Green, 
 458) ii. 278, 280, 614, 618, 619, 
 
 620, 621 
 Bergen u. Bergen (22 111. 187) 
 
 ii. 249, 445, 502, 519 
 Berkshire v. State (7 Ind. 389) 
 
 i. Ill, 310 
 Berlen u. Shannon. See Biirlen. 
 Berry v. Bakeman (44 Maine, 
 
 164) i. 170, 171 
 
 Berfchelemy u. Johnson (3 B. 
 Monr. 90) i. 663, 669, 678, 693, 
 ■697,698,699; ii. 199,280 
 
 Section 
 
 Best V. Best (1 Add. Ec. 411; 
 
 Poynter Mar. & Div. 198) i. 179, 
 
 764, 765; ii. 21, 33, 40, 41, 80, 262, 
 
 316, 387, 626, 635, 637, 642 
 
 w. Best (2 Phillim. 161) ii. 281 
 
 Betcher v. Betcher (cited 2 Phil- 
 lim. 155) ii. 48 
 Settle V. "Wilson (14 Ohio, 257) i. 652 
 Betts V. Betts (1 Johns. Ch. 197) 
 
 ii. 241, 242, 626 
 Betz V. Betz (2 Rob. N. Y. 694) 
 
 ii. 43 a, 46 
 Sevan v. Bevan (4 Swab. & T. 
 
 265) ii. 766 
 
 Bienvenu v. Buisson (14 La. An. 
 
 386) ii. 72 
 
 Biffin V. Bignell (6 Jur. n. s. 647; 
 
 7H. &N. 877) i. 580 
 
 Bigby V. Powell (25 Ga. 244) i. 209 
 Bigelow V. Bigelow (Wright, 416) i. 797 
 Billan v. Hercklebrath (23 Ind. 
 
 71) ii. 706 
 
 Billing V. Pilcher (7 B. Monr. 
 
 458) i. 568, 620 
 
 BilUngs V. Billings (11 Pick. 461) 
 
 ii. 245 
 Billingshurst, Rex v. (3 Maule & 
 
 S. 250) i. 292 
 
 BiUingsley v. Dean (11 Ind. 381) 
 
 i. 418 
 Bindley v. MuUoney (Law Rep. 
 
 7 Eq. 843) i. 637 
 
 Bingham o. Cabbot (8 Dall. 19) 
 
 i. 478 
 - — u. Miller (17 Ohio, 445) 
 
 i. 669, 686 ; ii. 199 
 Bingsted v. Lanesborough (3 
 
 Doug. 197) i. 588 
 
 Birbey v. Birbey (15 111. 120) i. 835 
 Bird V. Bird (1 Lee, 209) ii. 402 
 
 «. Bird (1 Lee, 418) ii. 457, 461 
 
 V. Bird (1 Lee, 572) ii. 887, 498 
 
 u. Bird (1 Lee, 621) i. 299;ii. 376 
 
 V. Bird (Wright, 98) ii. 604 
 
 V. Commonwealth (21 Grat. 
 
 800) i. 524, 580 
 
 V. Davis (1 McCarter, 467) 
 
 ii. 283 
 Birdsong v. Birdsong (2 Head, 
 
 289) i. 135 
 
 Birkby v. Birkby (1^ 111. 120) 
 
 i. 834 ; ii. 318 
 Birmingham, Rex v. (8 B. & C. 
 
 29 ; 2 Man. & R. 230) i. 173, 283, 294 
 Birney v. Hann (3 A. K. Mar. 
 
 322) i. 540 
 
 Bin V. Barlow (1 Doug. 171) 
 
 i. 441, 442, 479, 483, 491, 498 
 Birthwhistle v. Vardill (7 CI. & 
 
 F. 895) i. 548 
 
 Bisbing v. Graham (2 Harris, Pa. 
 14) ii. 723 
 
 xix 
 
BOB 
 
 INDEX TO THE CASES CITED. 
 
 BOW 
 
 Section 
 Bischoff V. Wethered (9 Wal. 
 
 812) ii. 157 
 
 Bishop V. Bishop (6 Casey, 412) 
 
 i. 789; ii. 177, 674, 682 
 
 V. Marshall (6 N. H. 407) i. 345 
 
 V. Shepherd (23 Pick. 492) 
 
 ii..528 
 
 V. State (30 Ala. 34) ' i. 84 
 
 Bissell V. Bissau (1 Barb. 430) ii. 409 
 
 V. Bissell (55 Barb. 325; 7 
 
 Abb. Pr. N. s. 16) i. 251 a, 279, 283 
 
 Black V. Bryan (18 Texas, 453) 
 
 i. 554, 617 
 , State V. (1 Winston, No. 1, 
 
 266) i. 754 
 
 Blackborne v. Blaekborne (Law 
 
 Kep. 1 P. & M. 563) i. 771 ; ii. 282 o 
 Blackburn v. Crawfords (3 Wal. 
 
 175) i. 279, 283, 287, 448, 458, 473 a 
 
 V. Mackey (1 Car. & P. 1) 
 
 ii. 528 
 Blackhara's Case (1 Salk. 290) ii. 754 
 Blackmore v. Brider (2 Phillim. 
 
 359) i. 315, 316; ii. 232 
 
 Blake v. Blake (7 Iowa, 46) ii. 435 
 Blaker v. Cooper (7 S. &E. 500) 
 
 ii. 376, 717 
 Bland's Case (Macqueen Pari. 
 
 Pract. 605) 11. 91 
 
 Bland v. Bland (Law Eep. 1 P. 
 
 & M. 237) ii. 767 
 V. Bland (Law Rep. 1 P. & 
 
 M. 513) ii. 282 a 
 
 Blankard v. Galdy (2 Salk. 411) i. 68 
 Blaqulere v. Blaquiere (3 Phil- 
 lim. 258) ii. 457 
 Bliss V. Houghton (13 N. H. 126) 
 
 i. 402 
 Blisset's Case (Lofft, 748) ii. 546 
 
 Blodget V. Brinsmaid (9 Vt. 27) 
 
 i. 314 
 Blood V. Harrington (8 Pick. 552) 
 
 ii. 303 
 Blowers v. Sturtevant (4 Denio, 
 
 46) i. 568, 579, 791 
 
 Blystone v. Burgett (10 Ind. 28) 
 
 i. 413 
 Blyth V. Topham (Cro. Jac. 158) ii. 75 
 Blythe v. Blythe (25 Iowa, 266) 
 
 ii. 429 a 
 Blythwood v. Everingham (3 
 
 Rich. 285) i. 584 
 
 Boardman v. Boardman (Law 
 
 Rep. 1 P. & M. 233) i. 735 ; ii. 282 o 
 Boas V. Nagle (3 S. & R. 250) i. 84 
 Boaz, Ex parte (31 Ala. 425) ii. 546 
 Boatman v. Curry (25 Misso. 
 
 433) i. 443 
 
 Bodkin V. Case (Milward, 355) 
 
 i. 489 ; ii. 267, 290, 759 
 Boethlinck v. Schneider (3 Esp. 
 
 58) i. 428 
 
 XX 
 
 Section 
 
 Boeeess v. Boggess (4 Dana, 307 ) 
 ^^i.72,722,73i;ii.260,317,318 
 355,358,514,7.50,751 
 
 Bogget V. Frier (11 East, 301) 
 
 i. 591, o9^ 
 Bollin V. Shiner (2 Jones, Pa. 
 
 205) ^' 
 
 Bolton V. Prentice (2 Stra.'l214) 
 
 1. 572 
 Bond V. Bond (2 Lee, 45) i. 506, 510 
 
 V. Bond (2 Swab. & T. 93) 
 
 ii. 131 
 Bonham v. Badgley (2 Gill, 622) 
 
 i. 105, 120 
 Bonneau v. Poydras (2 Rob. La. 
 
 1) i. 527 ; ii. 736 
 
 Bonner v. Montgomery (9 B. 
 
 Monr. 123) ii- 75 
 
 Boone v. Missouri Iron Co. (17 
 
 How. U. S. 340) ii. 75 
 
 Booth V. Hodgson (6 T. R. 405) ii. 75 
 Borden v. Pitch (15 Johns. 121) 
 
 " ;: ii. 126, 159, 163 a, 164, 202, 762 
 Boreiiam v. Boreham (Law Rep. 
 
 1 P. & M. 77) ii. 82 
 
 Borham v. Borliam (Law Rep. 2 
 
 P. & M. 193) ii. 316 
 
 Borlase v. Borlase (4 Notes Cas. 
 
 108) i. 130 
 
 Bostock V. Bostock (1 Swab. & 
 
 T. 221) ii. 58 
 
 Bostwick V. Bogardus (2 Root, 
 
 250) i. 424 
 
 V. Perkins (4 Ga. 47) ii. 133 
 
 Boswell V. Otis (9 How.- U. S. 
 
 336) ii 170 a 
 
 Boubon V. Boubon (3 Rob. N. Y. 
 
 715) _ ii. 406 
 
 Boulting V. Boulting (3 Swab. & 
 
 T. 329) ii. 25 a, 103, 105 a 
 
 Boulton V. Boulton (2 Swab. & T. 
 ' 405) ii. 743 
 
 V. Boulton (2 Swab. & T. 
 
 638) ii. 32 
 
 V. Prentice (1 Selw. N. P. 
 
 298) ii. 555 
 
 Bourne v. Simpson (9 B. Monr. 
 
 544) ii. 260, 751 
 
 Bouslaugh V. Bouslaugh (17 S. & 
 
 R. 361) i. 653 
 
 Bowen v. Bowen (3 Swab. & T. 
 
 530J ii. 743 
 
 , Reg. V. (2 Car. & K. 227) 
 
 i. 545 
 Bowers v. Bowers (19 Misso. 351) 
 
 i. 724, 826; ii. 684 
 
 V. Bowers (10 Rich. Eq. 
 
 551) i. 320 
 
 Bowie V. Bowie (3 Md. Ch. 51) 
 
 i. 718, 722,734; ii. 49, 52 
 Bowles V. Bingham (2 Munf. 
 443 ; 3 Munf. 599) i. 187, 448, 547 
 
BRE 
 
 INDEX TO THE CASES CITED. 
 
 BRO 
 
 Section 
 Bowman v. Worthington (24 Ark. 
 
 522) ii. 479, 492 
 
 Bowzer v. Ricketts (1 Hag. Con. 
 
 213) ii. 748 
 
 Boyce v. Owens (1 Hill, S. C. 8) 
 
 i. 583, 607 
 Boyd's Appeal (2 Wright, Pa. 
 
 241) ii. 753 a, 758 rf, 753 e 
 
 Boyd V. Boyd (Harper, 144) i. 767 
 Boyer, Commonwealth ii. (7 
 
 Allen, 806) i. 477 
 
 Boykin v. Rain (28 Ala. 332) ii. 712 
 Boyle V. Boyle (Comb. 72; 3 
 
 Mod. 164) ii. 640 
 
 Boynton v. Boynton (1 Swab. & 
 T. 324) ii. 536 
 
 V. Boynton (2 Swab. & T. 
 
 275) ii. 519, 532, 536, 538 
 
 Braekett v. Drew (20 N. H. 441) 
 
 i. 603 
 Bradford v. Brooks (2 Aikens, 
 
 284) i. 675 
 
 Bradley w. Bradley (2 Fairf. 367) 
 
 ii. 639 
 
 V. State (Walk. Missis. 156) 
 
 i. 754 
 Bradshaw v. Heath (13 Wend. 
 407) ii. 144, 159 
 
 V. State (1 Yerg. 177) i. 283 
 
 Brady, State v (9 Humph. 74) i. 308 
 Braham v. Burchell (3 Add. Ec. 
 
 243) ii. 309 
 
 Brainard v. Brainard (Wright, 
 
 354) ii. 250, 278, 674 
 
 Bramley, Rex t-. (6 T. R. 330) 
 
 i. 547 
 Brampton, Rex v. (10 East, 282) 
 
 i. 68, 396, 400, 496, 523, 531 
 Bramwell v. Bramwell (3 Hag. 
 Ec. 618) i. 717, 719, 736, 804; 
 
 ii. 42, 44, 56, 62, 613, 619, 629 
 Bray v. Bray (1 Hag. Ec. 163) 
 
 i. 726 ; ii. 640 
 
 V. Bray (2 Halst. Ch. 27) 
 
 ii. 489, 495 
 
 V. Bray (2 Halst. Ch. 506) 
 
 ii. 615, 621, 646 
 
 V. Bray (2 Halst. Ch. 628) 
 
 ii. 9, 625, 635 
 
 , State V. (13 Ire. 289) i. 291 
 
 Breakey v. Breakey (2 U. C. Q. 
 B. 349) i. 278, 415, 440, 444, 508, 
 509, 524 
 Brealy v. Reed (2 Curt. Ec. 833) 
 
 ii. 29, 243 
 Brearly, State u. (2 Southard, 
 
 555) Ii. 551 
 
 Breed v. Gove (41 N. H. 452) ii. 283 
 Breinig v. Breinig (2 Casey, 161) 
 
 ii. 445, 651, 658, 662 
 
 . V. Meitzler (11 Harris, Pa. 
 
 166) i. 554, 568, 730 
 
 Section 
 Bremner, Ex parte (Law Rep. 1 
 
 P. & M. 254) ii. 439 
 
 Bremner v. Bremner (3 Swab. & 
 
 T. 378) ii. 498 
 
 Brentlinger v. Brentlinger (4 
 
 Rawle, 241) ii. 260 
 
 Brett V. Brett (5 Met. 233) ii. 128, 212, 
 
 682 
 Brewer v. Linnaeus (36 Maine, 
 
 428) ii. 125 
 
 Briggs V. Briggs (2 Phillim. 40) 
 
 ii. 467 
 
 , Commonwealth v. (16 
 
 Pick. 203) ii. 543 
 
 V. Hubbard (19 Vt. 86) i. 99 
 
 V. Morgan (2 Hag. Con. 
 
 324; 3 Phillim. 325) i. 58, 322, 323, 
 331, 333 ; ii. 582, 584, 585, 590, 594 
 Bright V. White (8 Misso. 421) i. 424 
 Brighton, Reg. v. (1 B. & S. 447) 
 
 i. 315, 817, 320 
 Brisco V. Brisco (2 Add. Ec 259) 
 
 ii. 80, 341 
 
 V. Brisco (1 Hag. Ec. 165) ii. 637 
 
 V. Brisco (2 Hag. Con. 199) 
 
 u. 401, 425, 447, 449, 451, 452, 459, 
 460, 494 
 Bristow V. Sequeville (5 Exch. 
 
 276) i. 629, 535 
 
 Britton, State v. (4 McCord, 256) i. 497 
 Broadhead v. Noyes (9 Misso. 55) 
 
 i. 402 
 Broadstreet v. Broadstreet (7 
 
 Mass. 474) i. 712; ii. 306,308 
 
 Brodie v. Brodie (8 Scutch Sess. 
 Cas. 8d ser. 854) ii. 79 
 
 V. Brodie (2 Swab. & T. 
 
 259) ii. 145, 171 
 
 Brogden v. Brown (2 Add. Ec. 
 
 441) ii. 563 
 
 Brom V. Brom (2 Whart. 94) ii. 260 
 Bromley v. Bromley (2 Add. Ec. 
 
 158 ; Poynter Mar. & Div. 184) 
 
 i. 739 ; ii. 640 
 Bronson v. Newberry (2 Doug. 
 
 Mich. 38) i. 101 
 
 Brook c.. Brook (9 H. L. Cas. 
 
 193) i. 117, 119, 879, 385, 388 
 
 V. Brook (3 Smale & G. 
 
 481) i. 356, 378 
 
 Brookes v. Brookes (1 Swab. & 
 
 T. 326) i. 810 
 
 Brookfield v. Morse (7 Halst. 
 
 331) ii. 744 
 
 Brooks V. Clay (3 A. K. Mar. 
 
 545) i. 540 
 
 Brotherton v. Hellier (1 Lee, 
 
 599) ii. 309 
 
 Brower v. Eisher (4 Johns. Ch. 
 
 441) i. 138 
 
 Brown v. Ackroyd (5 Ellis & B. 
 
 819 ; 34 Eng. L. & Eq. 214) ii. 388 
 
 xxi 
 
BUG 
 
 INDEX TO THE CASES CITED. 
 
 B0B 
 
 Section 
 Brown v. Ashbough (40 How. Pr. 
 260) ii. 122 
 
 V. Brown (1 Des. 196) i. 446 
 
 V. Brown {5 GUI, 249 ; 2Md. 
 
 Ch. 316) i. 806, 810 
 
 V. Brown (1 Hag. Ec. 523) 
 
 i. 322, 382, 333 ; ii. 594 
 
 V. Brown (2 Hag. Ec. 5) 
 
 ii. 262, 446, 450, 460 
 
 V. Brown (13 Jur. 370) 1. 226 
 
 V. Brown (Law Rep. 7 Eq. 
 
 185) i. 634, 634 a 
 
 V. Brown (Law Rep. 1 P. 
 
 & M. 46) i. 734, 735 
 
 V. Brown (5 Mass. 320) ii. 642 
 
 V. Brown (15 Mass. 389) ii. 311 
 
 V. Brown (2 Md. Cli. 316) 
 
 i. 646, 773 ; ii. 741 
 
 «. Brown (2 R. L 381) ii. 651 
 
 V. Brown (22 Midi. 242) ii. 456 
 
 V. Brown (37 N. H. 536) ii. 767 
 
 V. Commonwealth (2 Leigh, 
 
 769) i. 791 
 
 V. Johnston (Eerg. Consist. 
 
 Law Rep. 229) ii. 563 
 
 V. Killingsworth (4 McCord, 
 
 429) i. 584, 607 
 
 V. Patton (3 Humph. 135) i. 573 
 
 «. Peck (1 Eden, 140) i. 635 
 
 V. Pratt (3 Jones Eq. 202) i. 413 
 
 V. Westhrook (27 Ga. 102) 
 
 i. 76, 95, 96, 137 ; ii. 307 
 Browne v. Burns (5 Scotch Sess. 
 Cas. N. s. 1288) i. 233 ; ii. 386, 403, 
 
 406 
 Browning v. Headley (2 Rob. Va. 
 340) ii. 714, 715 
 
 V. Headley (1 Sim. & S. 250) 
 
 ii. 734 
 
 V. Reane (2 Phillim. 69) i. 124, 
 
 127, 131, 136; ii. 563, 564, 739 
 Brownsword v. Edwards (2 Ves. 
 
 sen. 243) ii. 760 
 
 Bruce <-. Burke (2 Add. Ec. 471) 
 
 i. 299, 494 ; ii. 640 
 Bruere v. Bruere (1 Curt. Ec. 
 
 566) ii. 395, 448 
 
 Brunswick v. Litchfield (2 Greenl. 
 28) i. 279, 658 
 
 V. McKean (4 Greenl. 508) i. 516 
 
 Brush V. Blanehard (18 Bl. 46) ii. 527 
 Bryan v. Bryan (34 Ala. 516) ii. 546 
 Bryant v. Bryant (Wright, 156) 
 
 ii. 614 
 
 V. Kelton (1 Texas, 434) i. 409, 
 
 418 
 Bryson v. Bryson (17 Misso. 590) 
 
 i. 678, 686 
 
 V. Campbell (12 Misso. 498) 
 
 i. 668, 678 
 Buchanan v. Thorm (1 Barr, 
 431) i. 344 
 
 xxii 
 
 Section 
 Buckholts 0. Buckholts (24 Ga. 
 
 238) i. 99, 227, 249 ; ii. 38 
 
 Buckland, People 'w. (13 Wend. 
 
 592) "• ^^"' "*" 
 
 Buckley, State u. (2 Barring. Del. 
 
 552) 
 
 .i. 744 
 
 Buckraaster w. Buckmaster (Law 
 
 Rep. 1 P. & M. 713) i. 783, 805 b 
 Buckminster v. Buckminster (38 
 
 Vt. 248) ii- 429 a, 556 
 
 Buckner v. Ruth (13 Rich. 157) i. 654 
 Budington u. Munson (33 Conn. 
 
 481) i437 
 
 Buffaloe v. Whitedeer (3 Harris, 
 
 Pa. 182) ii. 717 
 
 BuUer v. Freeman (Amb. 301) i. 396 
 Bullock V. Zilley (Saxton, 489) ii. 718 
 Bunting v. Lepingwel (4 Co. 29 ; 
 
 Sir F. Moore, 169) ii. 754 
 
 Bunyard v. Bunyard (32 Law J. 
 
 N. s. Mat. 176) ii. 654 
 
 Burchet v. Burchet (Wright, 161) 
 
 ii. 614 
 Burekle v. Dry Dock (2 Hall, 
 
 151) ii. 75 
 
 Burden v. Burdell (2 Barb. 473) 
 
 ii. 334, 349 
 Burdick v. Briggs (11 Wis. 126) 
 
 ii. 706 
 Burditt V. Grew (8 Pick. 108) i. 70 
 Burgess v. Burgess (1 Hag. Con. 
 
 384) i. 53, 119, 316, 377 ; ii. 232 
 
 V. Burgess (2 Hag. Con. 223) ii. 7, 
 
 243, 244, 248, 613, 615, 625, 642 
 
 V. Burgess (47 N. H. 395) 
 
 ii. 638 
 Burk V. Phipps (1 Root, 487) ii. 528 
 Burke v. Winkle (2 S. & R. 189) 
 
 i. 585 
 
 , Reg. V. (3 Crawf. & Dix 
 
 C. C. 96) i. 116 
 
 Burlen v. Shannon (3 Gray, 387) 
 
 i. 571, 625 ; ii. 767 
 
 V. Shannon (14 Gray, 433) 
 
 i. 616, 624, 625 
 
 V. Shannon (99 Mass. 200) ii. 767 
 
 Burlington & Misso. River R. R. 
 
 Co. V. Marchand (5 Iowa, 468) i. 84 
 Burn V. Earrar (2 Hag. Con. 
 
 369) i. 400 
 
 Burnhara v. Rangeley (1 Woodb. 
 
 & M. 7) ii. 119 
 
 Burns w. Burns (13 Ela. 309) i. 813; 
 11.268,344,684 6,684 0' 
 Burr V. Burr (2 Edw. Ch. 448) 
 
 ii. 384, 347, 605, 607 
 
 V. Burr (7 Hill, N. Y. 207) 
 
 ii. 351, 425, 428, 442, 445, 457, 472 
 
 u. Burr (10 Paige, 20) i. 71, 74 ; 
 
 ii. 50, 56, 57, 58, 442, 737 
 
 V. Burr (10 Paige, 166) ii. 260, 
 
 737 
 
C. V. 0. 
 
 INDEX TO THE CASES CITED. 
 
 CAN 
 
 Section 
 Burrett v. Booty (8 Taunt. 343) 
 
 ii. 401 
 Burritt v. Burritt (29 Barb. 124) 
 
 ii. 558 
 Burroughs v. Burroughs (2 Swab. 
 . & T. 303) i. 771, 805 
 
 Burrows v. Burrows (1 Hag. Ec. 
 109) i. 130 
 
 V. Burrows (Law Eep. 1 P. 
 
 & M. 554) ii. 446 
 
 ,w. Jemino (2 Stra. 733) ii. 701 
 
 Bursler u. Bursler (5 Pick. 427) 
 
 ii. 365, 429, 446, 457 
 Burt V. Barlow (1 Doug. 171) i. 445 
 
 V. Burt (2 Swab. & T. 88) i. 524 
 
 V. Hurlburt (16 Vt. 292) ii. 712 
 
 Burtis V. Burtis (Hopkins, 557) 
 
 i. 24, 71, 72, 166, 178, 323 ; ii. 291 
 Burton v. Anderson (1 Texas, 
 
 93) i. 426 
 
 Burton-upon-Trent, Eex v. (3 M. 
 
 & S. 537) i. 204 
 
 Bury's Case (5 Co. 98) i. 113, 116, 333 
 Bury V. PhiUpot (3 Mylne & K. 
 
 349) i. 448 
 
 Busby V. Busby (2 Swab. & T. 
 
 883) ii. 498 
 
 Bush V. Brainard (1 Cow. 78) ii. 75 
 Bussey v. Leavitt (3 Pairf. 378) ii. 314 
 Butler V. Butler (1 Lee, 38) ii. 386, 
 
 423 
 
 V. Butler (4 Litt. 201) i. 72, 795 ; 
 
 ii. 319, 355, 358 
 
 V. Butler (Milward, 56) ii. 294 
 
 V. Butler (Milward, 629} ii. 457, 
 
 460 
 
 V. Butler (1 Parsons, 329) 
 
 i. 717, 718, 722, 730, 732, 735, 773, 
 783, 786, 799 ; ii. 88, 399, 651 
 
 u.Eschleman (18 111. 44) i. 171 
 
 V. Forbes (Ferg. 209) ii. 148, 150 
 
 u. Gastrin (Gilb. Ch. 156) i. 51, 
 
 109, 314, 316, 318, 377, 387 
 
 V, Pennsylvania (10 How. 
 
 U. S. 402; 3 Am. Law Jour. 
 385) i. 667, 677 
 
 , Rex V. (Buss. & Ry. 61 ) i. 294, 
 
 451 
 Butterfleld v. Forrester (11 East, 
 
 60) ii. 75 
 
 Bylandt v. Bylandt (2 Halst. Ch. 
 
 28) ii. 508 
 
 Bynum v. Bostiek (4 Des. 266) i. 154 
 Byram v. Batcheller (6 R. I. 543) 
 
 i. 627 
 Byrne v. Byrne (3 Texas, 336) 
 
 i. 724, 761 ; ii. 651 
 V. Carew (13 Irish Eq. 1) i. 636 
 
 C. V. C. (28 Eng. L. & Eq 603) 
 
 i. 722, 727, 732, 735, 736 ; ii. 280 
 
 Section 
 Cabell V. Cabell (1 Met. Ky. 319) 
 
 i. 669, 677, 678; 687 
 Cadoganw. Cadogan (2 Hag. Con. 
 
 6) ii. 614 
 
 Caesar, People v. (1 Parker, 645) 
 
 • ii. 702 
 
 Cage V. Acton (1 Ld. Rayra. 515) 
 
 ii. 690, 691, 693 
 Cain V. Bunkley (35 Missis. 119) 
 
 i. 582 
 
 , State V. (6 Blackf. 422) i. 346 
 
 Calder v. Bull (3 Dall. 386) i. 675, 685 
 Caldwell a. State (17 Conn. 467) 
 
 ii. 636 
 Calef V. Calef (54 Maine, 365) ii. 213 a 
 , Commonwealth v, (10 Mass. 
 
 153) i. 777 
 
 Calkins v. Long (22 Barb. 97) i. 650 ; 
 
 ii. 59 
 Call, Commonwealth v. (21 Pick. 
 
 509) i. 703 
 
 Callahan v. Griswold (9 Misso. 
 
 775) ii. 753 e 
 
 V. Patterson (4 Texas, 61) ii. 369 
 
 Calloway v. Bryan (6 Jones, N. 
 
 C. 569) ii. 690, 700, 704 
 V. Witherspoon (5 Ire. Eq. 
 
 128) ■ i. 131 
 
 Callwell V. CaUwell (3 Swab. & 
 
 T. 259) ii. 145 
 
 Calvin's Case (7 Co. 1) i. 399 
 
 Cambridge v. Lexington (IPick. 
 
 506) i. 371 ; ii. 701, 702 
 
 Camden v. Mulford (2 Dutcher, 
 
 49) ii. 133 
 
 Camerlin v. Palmer Company (10 
 
 Allen, 539) i'. 616 
 
 Cameron v. Cameron (2 Cold. 
 
 375) ii. 343 a 
 
 V. Malcolm (Mor, 12586) i. 199 
 
 V. State (14 Ala. 546) i. 497, 825 ; 
 
 ii. 285, 286 
 Camp V. Camp (18 Texas, 528) i. 724, 
 734, 791 
 CampbeU's Case (2 Bland, 209) 
 
 ii. 231 
 Campbell v. Campbell (Deane & 
 
 Swabey, 285) ii. 46 
 V. Campbell (Law Rep. 1 H. 
 
 L. Sc. 182) i. 266, 266 a, 267, 507 a 
 
 V. Gullatt (43 Ala. 57) i. 279, 283 
 
 V. Hall (Cowp. 204) i. 399 
 
 — '— V. Honyman (8 Scotch Sess. 
 
 Cas. 1039 ; 5 "Wilson & Shaw, 
 
 92) i. 265 
 V. Sassen (2 Wilson & Shaw, 
 
 309) i. 236, 237 ; ii. 386, 403 
 
 w. State- (23 Ala. 44) ii. 621 
 
 Canady v. George (6 Rich. Eq. 
 
 103) i. 38, 454 
 
 Canfield v. Squire (2 Root, 300) 
 
 i. 424 
 
 xxiii 
 
CAS 
 
 INDEX TO THE CASES CITED. 
 
 CHA 
 
 Section 
 Cannon v. Alsbury (1 A. K. Mar. 
 76) i. 143, 283, 284, 293 
 
 V. Cannon (7 Humph. 410) i. 448 
 
 Canover v. Cooper (3 Barb. 115) 
 
 ii. 528 
 Canterbury's Case (2 Co. 46 a) i. 588 
 Cantine v. Phillips (5 Barring. 
 
 Del. 428) i. 553 
 
 Cany v. Patton (2 Ashni. 140) i. 554, 
 557, 573, 578, 619, 620 
 Capel v^ Powell (17 C. B. n s. 
 
 743) ' ii. 724 
 
 Carden v. Garden (1 Curt. Ec. 
 
 558) ii. 158 
 
 CargiU v. Cargill (1 Swab. & T. 
 
 235) i. 810 
 
 Carley v. Green (12 Allen, 104) i. 579 
 Carlton v. Carlton (44 Ga. 216) 
 
 ii. 498 
 Carmichael v. State (12 Ohio 
 
 State, 553) i. 279 
 
 Caroon v. Eogers (6 Jones, N. C. 
 
 240) i. 343 
 
 Carotti v. State (42 Missis. 334) ii. 635 
 Carpenter v. Carpenter (Mil- 
 ward, 159) i. 727, 729, 730, 754; 
 ii. 308 
 
 V. Whitman (15 Johns. 208) 
 
 ii. 550 
 Carr v. Holliday (5 Ire. Eq. 167) 
 
 i. 135 
 
 , State V. (5 N. H. 367) i. 424 
 
 Carre v. Carre (2 Yeates, 207) ii. 256 
 Carrol v. Blencow (4 Esp. 27) i. 590 
 Carroll v. Carroll (20 Texas, 731) 
 
 i. 515, 518, 548 
 
 V. Eenich (7 Sm. & M. 798) i. 404 
 
 Carron v. Martin (2 Butcher, 
 
 594) ii. 133 
 
 Carson v. Carson (40 Missis. 349) 
 
 i. 104, 667, 668, 696 
 
 V. Murray (3 Paige, 483) i. 650 
 
 Carter v. Carter (6 Mass. 263) 
 
 ii. 173, 255 
 
 u. Carter (14 Sm.&M. 59) i. 647 
 
 Cartlidge v. Cartlidge (2 Swab. 
 
 & T. 567) ii. 530 
 
 Cartwright v. Bate (1 Allen, 514) 
 
 i. 568, 576, 620 
 
 V. Cartwright (19 Eng. L. & 
 
 Eq. 46) i. 806; ii. 719, 741 
 
 V. Cartwright (1 Phillim. 
 
 90) i. 130, 135; ii. 563 
 
 V. Cartwright (18 Texas, 
 
 626) i. 726, 735, 738 
 
 Caruthers v. Caruthers (13 Iowa, 
 
 Section 
 Casteel v. Casteel (8 Blackf. 240) 
 
 1. 557, 561, 568, 613, 616 
 Castell Careinion, Hex v. (8 East, 
 
 77) 
 
 1.514 
 
 266) 
 Case V. Case (17 Cal. 598) 
 
 V. Clarke (5 Mason, 70) 
 
 Cason V. Cason (15 Ga. 405) 
 
 xxiv 
 
 1. 730 
 i. 440 ; 
 ii. 274 
 ii. 122 
 ii. 395, 
 498 
 
 Castello V. Castello (41 Ga. 613) ii. 283 
 Castleden v. Castleden (9 H.L. . 
 
 Cas. 186) ii. 582,583 
 
 Castro 0. HUes (22 Texas, 479) 
 
 i. 404, 405 
 Catherwoodw. Caslon (Car. &M. 
 
 431 ; 13 Law J. n. s. Exch. 
 
 334) i. 498 
 V. Caslon (13 M. & W. 261 ; 
 
 8 Jur. 1076) i. 278, 442, 526 
 Caton .). Caton (13 Jur. 431) ii. 14, 
 278, 337, 613, 615, 617, 620, 
 621, 646 
 Catterall v. Catterall (1 Robert- 
 son, 580) i. 56, 68, 278, 284, 287 a ; 
 ii. 263 
 V. Sweetman (1 Robertson, 
 
 304) i. 278, 283, 284, 286, 287 a, 457 
 Cattison w. Cattison (10 Harris, 
 
 Pa. 275) i. 799 ; ii. 659, 660 
 
 Caudell v. Shaw (4 T. R. 361) i. 584 
 Caudrey's Case (5 Co. 1) i. 54 
 
 CaujoUe v. Ferrie (26 Barb. 177) 
 
 i. 457, 475, 540 
 Cayford's Case (7 Greenl. 57) i. 442, 
 497, 532; ii. 628 
 Chadwick, Reg. v. (12 Jur. 174; 
 
 11 Q. B. 173) i. 119, 299, 316 
 
 Chaires v. Chaires (lOFla. 308) ii. 376 
 Chamberlain v. Chamberlain (2 
 
 Aikens, 232) ii. 256 
 
 V. Chandler (3 Mason, 242) i. 58 
 
 V. Davis (33 N. H. 121) i. 561 
 
 V. People (23 N. Y. 85) ii. 283 
 
 Chamberlaine v. Hewson (5 Mod. 
 
 70) ii. 732 
 
 Chambers v. Chambers (1 I-Iag. 
 
 Con. 439) ii. 86, 614, 620, 637 
 
 V. Dickson (2 S. & R. 475) i. 443 
 
 V. Donaldson (9 East, 471) i. 592, 
 
 593 
 V. Queen's Proctor (2 Curt. 
 
 Ec. 415) i. 130; ii. 563 
 
 Champlin J). Champlin (Hoflfman, 
 
 55) i. 650 
 
 Chancellor v. Milly (9 Dana, 23) i. 540 
 Chandler v. Chandler (13 Ind. 
 
 492) ii. 489 
 
 Chanoine v. Fowler (3 Wend. 
 
 173) i. 424 
 
 Chapman v. Chapman (2 Conn. 
 
 347) i. 540 
 
 V. Chapman (13 Ind. 396) ii. 356, 
 
 433, 519 
 V. Commonwealth (5 Whart. 
 
 427) ii. 88 
 
 V. Cooper (5 Rich. 452) i. 454 
 
 V. Gray (8 Ga. 341) i. 648 
 
CHO 
 
 INDEX TO THE CASES CITED. 
 
 CLA 
 
 Section 
 Charles River Bridge v. Warren 
 
 Bridge (7 Piclc. 344) i. 687 
 
 Charleton, Reg. v. (Jebb. 267; 1 
 
 Crawf. & Dix C. C. 315) i. 530 
 
 Charlotte v. Chouteau (21 Misso. 
 
 590) i. 154, 418, 425, 426, 427 
 
 Charruaud v. Cliarruaud (1 N. 
 
 Y. Leg. Obs. 134) ii. 707, 717, 719 
 
 Chase v. Chase (6 Gray, 157) ii. 121, 
 
 128, 128, 145, 214, 724 
 
 V. Chase (55 Maine, 21) ii. 376 
 
 V. Chase (105 Mass. 385) ii. 499 
 
 , Conamonwealth v. (-6 Cush. 
 
 248) i. 470 
 
 V. Ingalls (97 Mass. 524) ii. 499 
 
 V. Smith (5 Vt. 656) ii. 528 
 
 Cheatham w. Cheatham (10 Misso. 
 
 296) i. 722, 726, 826 
 
 Clieek, State v. (13 Ire. 114) i. 424 
 Cheeseman, States. (2 Southard, 
 
 445) ii. 551 
 
 Cheever v. Wilson (9 Wal. 108) 
 
 ii. 128 a, 137, 163 a, 203, 763 
 Chegaray, People v. (18 Wend. 
 
 637) ii. 529, 546, 549, 551 
 
 Chenault v. Chenault (5 Sneed, 
 
 248) ii. 475, 511 
 
 Cheney v. Arnold (15 N. Y. 345) i. 256 
 Chenowith v. Chenowith (14 Ind. 
 
 2) ii. 705 
 
 Cheriot v. Foussat (3 Binn. 220) 
 
 ii.l33 
 Cheseldine v. Brewer (1 Har. & 
 
 McH. 152) i. 279, 279 a, 443 
 
 Chesnutt v. Chesnutt (1 Spinks, 
 
 196) i. 722, 727, 732, 735; 
 
 ii. 280 
 Chettle V. Chettle (3 Phillim. 
 
 507) ii. 80, 89 
 
 • Chetwynd v. Chetwynd (Law 
 
 Rep. 1 P. & M. 39) ii. 526, 530, 
 582, 583, 534 
 Chevalier v. Whatley (12 La. An. 
 
 651) i. 193 
 
 Chichester v. Donegal (1 Add. 
 
 Ec. 5) ii. 126, 158 
 I'. Mure (3 Swab. & T. 
 
 223) i. 284, 287 a, 306 a; ii. 698, 
 769 o 
 Chick V. Ramsdale (1 Curt. Ec. 
 
 34) i. 110 ; ii. 232 
 
 Chiidress v. Mann (33 Ala. 206) i. 586 
 Chiles V. Drake (2 Met. Ky. 146) i. 442 
 Chirac v. Reinecker (2Pet.613) 1. 540 
 Choate v. Choate (3 Mass. 391) 
 
 ii. 173, 314, 614 
 Chouteau v. Chevalier (1 Misso. 
 
 343) i. 478 
 V. Donchouquette (1 Misso. 
 
 669) i. 582, 648 
 
 V. Magenis (28 Misso. 187) i. 678, 
 
 686 
 
 Section 
 Chouteau v. Merry (3 Misso. 254) 
 
 i. 682, 583, 586, 602 
 
 V. Pierre (9 Misso. 3) i. 409, 
 
 417 
 Chrewe's Case (Macqueen H. L. 
 
 Pract. 699) i. 287 
 
 Christian v. Christian (13 Scotch 
 
 Sess. Cas. n. s. 1149) ii. 148, 149 
 Christianberry v. Christianberry 
 (3 Blackf. 202) ii. 47, 80, 87, 90, 
 
 605 
 Christie's Estate (1 Tucker, 81) i. 437 
 Christy v. Clarke (45 Barb. 529) i. 494 
 Chubb V. Johnson (11 Texas, 
 
 469) i. 101 
 
 Chumasero v. Gilbert (24 III. 
 
 293) i. 409 
 
 Chunn v. Chunn (Meigs, 131) ii. 450, 
 457, 474, 475 
 Church u. Church (3 Mass. 157) 
 
 ii. 604, 605 
 
 V. Hubbart (2 Cranch, 187) 
 
 i. 409, 418 
 
 V. Landers (10 Wend. 79) 
 
 i. 561 
 Ciocci V. Ciocci (26 Eng. L. & 
 Eq. 604; 1 Spinks, 121) i. 735 ; 
 ii. 280, 626, 635, 642 
 Clapp V. Clapp (97 Mass. 531) 
 
 ii. 94, 95, 628 
 Clare u. Clare (4 C.E. Green, 37) 
 
 ii. 618 
 
 V. State (5 Iowa, 509) i. 426 
 
 Clark V. Clark (8 Cush. 385) ii. 702 
 
 u. Clark (97 Mass. 381) 
 
 ii. 103, 105 6 
 
 V. Clark (8 N. H. 21) ii. 171, 
 
 173, 175, 198 
 
 V. Clark (10 N. H. 380) 
 
 i. 24, 668, 698 ; ii. 233, 234 
 
 V. Clark (7 Rob. N. Y. 241) 
 
 ii. 610 
 
 V. Clark (6 Watts & S. 85) 
 
 ii. 202, 225, 351, 437, 438, 
 499, 706, 730, 731, 737, 739 
 
 V. Clark Wright, 225) ii. 472, 
 
 532, 678 
 
 V. Field (13 Vt. 460) i. 166, 
 
 205, 215, 233, 245, 249 ; ii. 291 
 
 V. Trail (1 Met. Ky. 35) ii. 568 
 
 Clarke v. Douce (2 PhiUim. 335) 
 
 ii. 281 
 
 V. Hankin (2 Phillim. 328) i. 294 
 
 V. Lott (11 111. 105) ii, 719, 754 
 
 V. McCreary (12 Sm. & M. 
 
 347) i. 675 ; ii. 714 
 
 Clayton v. Adams (6 T. R. 604) i. 591 
 
 V. Clayton (1 Ashm. 52) ii. 328 
 
 State K. (11 Rich. 581) i. 83 
 
 V. Warden (4 Comst. 230; 
 
 6 Barb. 214) i. 279, 280, 440, 
 
 441,442,443,446,513; ii. 272 
 
 XXV 
 
COD 
 
 INDEX TO THE CASES CITED. 
 
 COL 
 
 Section 
 Clear v. Eeasor (29 Iowa, 327) ii. 620 
 Cleaver u.Woodbridge (2 PhilUm. 
 
 362) ii. 232 
 
 Clegg V. Leory (3 Camp. 166) i. 428 
 Clement v. Beard (5 Mod. 448) i. 316 
 
 V. Kimball, 98 Mass. 535) ii. 627 
 
 V. Mattison (3 Rich. 93) 
 
 i, 124,131, 136,568, 570, 786; 
 ii. 307 
 
 V. Rhodes (3 Add. Ec. 37) ii. 309 
 
 Clements v. Clements (3 Swab. 
 & T. 394) ii. 743 
 
 , Commonwealth v. (6 Binn. 
 
 206) i. 156 
 
 Clendenning v. Clendenning (15 
 
 Mart. La. 438) i. 302 
 
 Clews V. Bathurst (2 Stra. 960) 
 
 ii. 754, 759 
 Clifford V. Laton (3 Car. & P. 
 
 15 ; 1 Moody & M. 101 ) i. 554, 620 
 Clifton V. Davis (1 Parsons, 31) i. 131 
 Clinton v. York (26 Maine, 167) ii. 529 
 Cloborn's Case (Hetley, 149) i. 748 
 Cloncurry's Case ( Cruise on Dig- 
 nities, 276 ; VVadd. Dig. 238) i. 392 
 Clout w. Clout (2 Swab. & T. 391) 
 
 ii. 533 
 Clover, State v. (1 Harrison, 419) 
 
 ii. 529, 549 
 Clowes V. Clowes (3 Curt. Ec. 
 185) i. 167, 204 ; ii. 316 
 
 V. Clowes (9 Jur. 356; 4 
 
 Notes Cas. 12) i. 801 ; ii. 5, 9, 88, 
 
 262 
 Clutch V. Clutch (Saxton, 474) 
 
 i. 750; ii, 228, 241, 245, 249, 605 
 Clute V. Fitch (25 Barb. 428) i. 173 
 Glutton ... Cherry (2 Phillim. 
 
 373) ii. 281 
 
 Coale V. Harrington (7 Har. & J. 
 
 147) i. 469 
 
 Cobbew. Garston (Milward, 529) 
 
 ii. 241, 243, 277, 294 
 Coble V. Coble (2 Jones Eq. 392) 
 
 i. 826 
 Cochran v. Van Surlay (20 
 
 Wend. 365) i. 667, 681 
 
 Cochrane, In re (8 Dowl. P. C. 
 630) i. 754, 755 
 
 , Petitioner, 10 Allen, 276) i. 307 a 
 
 Cock V. Cock, 3 Swab. & T. 514 
 
 i. 805 b 
 
 V. Ravie (6 Ves. 283) ii. 506 
 
 Coekrill v. Calhoun (1 Nott & 
 
 McC. 285) i. 538 
 
 Cocksedge v. Cocksedge (1 Rob- 
 ertson, 90) ii. 80, 86, 623, 630 
 Codd V. Codd (1 Bland, 101) ii. 360 
 
 V. Codd (2 Johns. Ch. 141) 
 
 ii. 352, 530, 532 
 
 V. Codd (2 Johns. Ch. 224) 
 
 ii. 606 
 
 xxvi 
 
 Section 
 Coddington v. Coddington (5 
 
 C. E. Green, 263) ii. 144, 209 
 
 Codrington v. Codrington (3 
 
 Swab. & T. 496) "■ 526 
 V. Codrington (4 Swab. & 
 
 T. 63; 3 Swab. &T. 368) u. 607 
 Cofer V. Thurmond (1 Kelly, 538) 
 
 1. 452 
 Coffin «. Dunham (8 Cush. 404) 
 
 ii. 891, 397, 419 
 
 V. Jones (13 Pick. 445) ii. 723 
 
 Coglar V. Coglar (1 Ves. Jun. 
 
 94) ii. 507 
 
 Cogswell V. Tibbetts (3 N. H. 
 
 41) i. 627, 628 
 
 Cole, Ex parte (28 Ala. .50) i. 595 
 
 V. Cole. (23 Iowa, 433) 
 
 i. 717, 733, 752 ; ii. 657, 658 
 
 V. Cole (5 Sneed, 57) i. 124, 
 
 127, 141 
 
 V. Cole (27 Wis. 531) i. 100; ii. 455 
 
 Coleman's Case (6 N. Y. City 
 HaU Reporter, 3) i. 150, 293, 
 
 494, 499 
 Coleman v. Carr (Walk. Missis. 
 
 258) i. 677 
 
 Coles V. Coles (2 Md. Ch. 341) 
 
 i. 718, 743 ; ii. 228, 375, 387, 
 
 398, 406, 425, > 461 
 
 Collet's Case (2 Mod. 314) ii. 240 
 
 CoUett V. Collett (1 Curt. Ec. 
 
 678) i. 735 ; ii. 632 
 
 V. Collett (3 Curt. Ec. 726) 
 
 ii. 128, 157, 158, 176 
 
 V. Collett (8 Monthly Law 
 
 Mag. 158) ii. 60 
 
 V. Collett (Wadd. Dig. 38) 
 
 ii. 632 
 Collier v. Collier (1 Dev. Eq. 352) 
 
 i. 24; ii. 72, 227- 
 
 V. Harkness (26 Ga. 362) i. 209 
 
 Collins V. Blantern (2 Wils. 341) 
 
 ii. 75 
 V. Collins (2 Brewster, 515) 
 
 i. 212 
 
 V. Collins (29 Ga. 517) 
 
 i. 726 ; ii. 420, 461 
 
 u. Collins (2 Paige, 9) ii. 385, 
 
 394, 461, 530 
 
 V. Mitchell (5 Harring. Del. 
 
 369) i. 573 
 
 V. Srunker (1 U. S. Mo. 
 
 Law Mag. 114) ii. 528 
 
 V. State (14 Ala. 608) i. 825 
 
 Colman v. Anderson (10 Mass. 
 
 ^ 105) ii. 314 
 
 Colmerv. Colmer (Mosely, 118) 
 
 ^ , . ii. 353, 358 
 
 Colvm V. Colvin (2 Paige, 385) 
 
 ii. 751, 752 
 
 V. Reed (5 Smith, Pa. 375) 
 
 ii. 128, 163 a, 170 c, 177 
 
coo 
 
 INDEX TO THE CASES CITED. 
 
 CRA 
 
 Section 
 Comly V. Strader (Smith, Ind. 
 
 75;llnd. 184) ii. 710 
 
 Coraparet v. Jernegan (5 Blaekf. 
 
 375) i. 424, 426 
 
 Compton V. Bearcroft (Bui. N. 
 P. 114 ; 2 Hag. Con. 430) i. 355, 356 
 
 V. Callwin (1 H. Bl. 334) 1. 591 
 
 Conantu. Conant (10 Cal. 249) 
 
 ii. 87, 88, 90, 227, 255 
 Conger v. Conger (2 Beasley, 
 
 286) i. 784 
 
 Conn V. Conn (Wright, 563) Ii. 651 
 Connelly v. Connelly (16 Law 
 Times R. 45; 7 Notes Cas. 
 444 ; 2 Eobertson, 201 ; 2 Eng. 
 L. & Eq. 570) i. 367, 806 
 
 Conradi v. Conradi (Law Kep. 1 
 
 P. & M. 514) ii. 82 
 
 Conran v. Lowe (1 Lee, 630) i. 446, 
 
 512 
 Consequa v. WiUrings (Pet. C. C. 
 
 225) i. 426 
 
 Converse v. Converse (9 Rich. 
 
 Eq. 535) ii. 435 
 
 Conway v. Beazley (3 Hag. Ec. 
 639) i. 372, 478; ii. 141, 144, 148, 
 183, 754, 760, 762 
 Conyers v. Kitson (3 Hag. Ec. 
 
 556) ii. 739 
 
 Good «. "Good (1 Curt. Ec. 755) 
 
 i. 476, 478, 479, 531, 633 ; 
 ii. 106, 266, 269, 741 
 Cook V. Cook (1 Barb. Ch. 639) 
 
 ii. 492, 530, 531, 532, 533 
 
 V. Cook (2 Beasley, 263) i. 773, 
 
 783 ; ii. 673 
 
 V. Cook (3 Stock. 195) i. 746 ; 
 
 ii. 663 
 
 , People V. (4 Selden, 67) i. 209 
 
 V. Wilson (Litt. Sel. Cas. 
 
 437) i. 409 
 
 Cooke V. Clayworth (18 Ves. 12) 
 
 i. 131 
 
 V. Cooke (2 Phillim. 40) 
 
 ii. 375, 406, 425, 445, 446, 449, 
 
 451, 455, 457, 459, 460, 
 
 462, 463, 467, 474 
 
 V. Cooke (Phillips, 583) i. 279 
 
 V. Cooke (2 Swab. & T. 50) ii. 312 
 
 . V. Cooke (3 Swab. & T. 
 
 126) ii. 103, 105 a 
 
 V. Cooke (3 Swab. & T. 
 
 248) ii. 526, 532 
 
 Cooledge v. Cooledge (1 Barb. 
 
 Ch. 77) ii. 492 
 
 Coon V. Coon (26 Ind. 189) ii. 379 
 Coons V. Renick (11 Texas, 134) 
 
 i. 470 
 Cooper V. Cooper (10 La. 249) 
 
 i. 748; ii. 88,620 
 
 V. Cooper (17 Mich. 205) 
 
 i. 784 a 
 
 Seotioit 
 Cooper V. Cooper (Milward, 878) 
 
 ii. 128, 158 
 
 V. Cooper (7 Ohio, 2ti pt. 
 
 238) ii. 98, 134, 161, 262, 754 
 
 V. Cooper (8 Swab. & T. 
 
 392) ii. 439 
 
 V. Galbraith (3 Wash. C. 
 
 C. 546) ii. 121, 122 
 
 V. Lloyd (6 C. B. n. s. 519) 
 
 i. 574, 624 
 
 V. Martin (4 East, 76, 84) ii. 528 
 
 Cope w. Burt (1 Hag. Con. 434) 
 
 1. 292, 294 
 
 V. Cope (5 Car. & P. 604) i. 448 
 
 Copsey V. McKinney (30 Barb. 
 
 47) i. 616 
 
 Corbett V. Poelnitz (1 T. R. 5) i. 591 
 Corbit v: Smith (7 Iowa, 60) ii. 563 
 Corliss V. Corliss (8 Vt. 373) i. 287 a 
 Cornelius v. Cornelius (31 Ala. 
 
 479) ii. 250, 867, 532, 767 
 
 Cornell v. Vanartsdalen (4 Barr, 
 
 364) ii. 723 
 
 Cornwall v. Richardson (Ryan & 
 
 Moody N. P. 805) ii. 644 
 
 Cornwell v. State (Mart. & Yerg. 
 
 147) i. 131 
 
 Cory V. Cory (3 Stock. 400) ii. 355, 
 
 356 
 Gossan v. Gossan (Wright, 147) i. 787 
 Gotten V. Eutledge (28 Ala. 110) 
 
 i. 344 
 Coulson V. Coulson (5 Wis. 79) ii. 572 
 Cousen v. Gousen (4 Swab. & T. 
 
 l64) i. 738 
 
 Goverdill v. Goverdill (SHarring. 
 
 Del. 13) i. 31 ; ii. 227 
 
 Cowls V. Cowls (3 Gilman, 435) 
 
 ii. 528, 529, 556 
 Cox V. Combs (8 B. Monr. 281) 
 
 i. Ill, 804; ii. 701 
 
 V. Cox (3 Add. Eo. 276) ii. 429 
 
 V. Gox (25 Ind. 303) ii. 379 
 
 V. Gox (19 Ohio State, 502; 
 
 20 Ohio State, 489) ii. 881 a 
 
 V. Gox (2 Swab. & T. 306) ii. 82 
 
 V. Hoffman (4 Dev. & Bat. 
 
 180) i. 557, 562 
 
 V. Morrow (14 Ark. 608) i. 412 
 
 V. Robinson (2 Stew. & P. 
 
 91) i. 424 
 
 Grabb v. Atwood (10 Ind. 331) 
 
 ii. 314 
 V. Grabb (Law Rep. 1 P. & 
 
 M. 601) i. 805 4 
 
 Graddock v. Cabiness (1 Swan, 
 
 Tenn. 474) i. 193 
 
 Craig V. Brown (Pet. C. C. 852) i. 424 
 Crake v. Crake (18 Ind. 156) i. 424 
 Cram v. Burnham (5 Green). 213) 
 
 i. 279, 506, 513 
 V. Cram (6 N. H. 87) i. 819 
 
 xxvii 
 
CUN 
 
 INDEX TO THE CASES CITED. 
 
 d'a 
 
 Section 
 
 Crane v. Meginnis {1 Gill & J. 
 
 463) i. 14, 685, 686, 687, 693 ; 
 
 ii. 170, 355, 359, 876, 381 
 
 Craton, State v. (6 Ire. 164) i. 755 
 
 Crehore v. Crehore (97 Mass. 
 
 380) i. 190 a 
 
 Creswell v. Cosins (2 PhiUim. 
 
 281) i. 294 
 
 Crewe v. Crewe (3 Hag. Ec. 123) 
 
 u. 17, 21, 23, 26, 28, 29, 41, 
 247, 253, 285, 335 
 Croft V. Croft (3 Hag. Ec. 310) 
 
 ii. 14, 334, 335, 604, 617, 621, 
 625, 642 
 Cronise v. Cronise (4 Smith, Pa. 
 
 255) i. 690 
 
 Cropsey v. McKinney (80 Barb. 
 47) i. 114, 613,617, 650; ii. 298 
 
 V. Ogden (1 Keman, 228) ii. 708 
 
 Crosby v. Huston (1 Texas, 208) 
 
 i. 412, 527 
 Cross V. Cross (3 Paige, 139) ii. 231, 
 243, 559 
 Grossman u. Crossman (33 Ala. 
 
 486) ii. 344, 672 
 
 Crostwaight ti. Hutchinson (2 
 
 Bibb, 407) i. 645 
 
 Crothers v. Crothers (Law Eep. 1 
 
 P. & M. 568) i. 771 
 
 Crouch V. Crouch (30 Wis. 667) 
 
 ii. 753 a 
 
 V. Hall (15 111. 263) i. 413 
 
 Crow V. Crow (23 Ala. 583) i. 783, 
 786 ; ii. 675 
 Crowley, State v. (13 Ala. 172) 
 
 ii. 625, 642 
 Crozier v. Bryant (4 Bibb, 174) i. 413 
 
 V. Gano (1 Bibb, 257) i. 443 
 
 Cruger v. Douglas (4 Edw. Ch. 
 433) i. 31, 772 
 
 V. Heyward (2 Des. 94) ii. 528 
 
 Crump V. Morgan (3-Ire. Eq. 91) 
 
 i. 71, 124, 125, 186, 139; ii. 298, 307 
 Cudlipp V. Cudlipp (1 Swab. & 
 
 T. 229) il. 680 
 
 Cullins, Commonwealth «. (1 
 
 Mass. 116) i. 601 
 
 Culyer V. Culver (8 B. Monr. 
 
 128) ii. 489 
 
 Cummingst). Henry (10 Ind. 109) i. 131 
 Cummins v. Cummins (2 Mc- 
 
 Carter, 138) ii. 89, 105 a, 284 a 
 
 Cunningham v. Burdell (4 Bradf. 
 343) i. 279,589 
 
 V. Cunningham (2 Ind. 283) 
 
 ii. 706, 709 
 
 V. Irwin (7 S. & K. 247) 
 
 i. 568, 786 ; ii. 369, 401 
 
 u. Reardon (98 Mass. 538) i. 616 
 
 Cunningh.ams v. Cunninghams (2 
 Dow, 482; i. 240, 437, 438, 463, 
 
 506, 510 
 
 xxviii 
 
 Section 
 Currie v. TurnbuU (Hume, 273; 
 
 1 Eras. Dom. Rel. 154) i. 249 
 
 Curtis V. Curtis (5 E. F. Moore, 
 252 ; 10 Jur. 165) ii- 641 
 
 V. Curtis (5 Gray, 585) ii. 527, 549 
 
 V. Curtis (1 Swab. & T. 75) 
 
 il. 53o 
 
 w. Curtis (1 Swab. &T. 192) 
 
 1.717, 734; ii, 52, 58, 526 
 
 V. Curtis (4 Swab. & T. 234) 
 
 ii. 253 
 
 V. Hobart (41 Maine, 230) i. 813 
 
 Cusaek v. White (2 Mill, 279) 
 
 i. 88, 583 
 Cutler u. Cutler (2 Brews. 511) 
 
 i. 788, 789 
 V. Wright (22 N. Y. 472) i. 412 
 
 Dacosta v. Villa Real (2 Stra. 
 
 961) ii. 754, 759 
 
 Dacy V. N. Y. Chemical Manuf. 
 
 Co. (2 Hall, 550) i. 557 
 
 Daggett V. Daggett (5 Paige, 
 
 509) ii. 235,435 
 
 D'Aguilar o. D'Aguilar (1 Hag. 
 
 Ec. 773) i. 713, 717, 719, 727, 780, 
 
 787, 738, 741, 748, 758, 804 ; 
 
 ii. 33, 43, 44, 46, 49, 52, 55, 
 
 66, 58, 103, 104, 268, 280, 
 
 887, 394, 610 
 
 Daiger v. Daiger (2 Md. Ch. 335) 
 
 i. 718, 722, 764 ; 
 ii. 887, 398, 406 
 Dailey v. Dailey (Wright,^ 514) 
 
 ii. 879, 533, 613, 620 
 Dakins v. Seaman (9 M. & W. 
 
 777) i. 51 
 
 Dairy raple v. Dalrymple (2 Hag. 
 
 Con. 54) i. 53, 55, 166, 218, 220, 
 
 228, 234, 235, 240, 250^ 251, 
 
 252, 253, 254, 269, 274, 361, 
 
 367, 390 ; ii. 291, 309 
 
 Dalton V. Bernardston (9 Mass. 
 
 201) ii. 717 
 
 Damon's Case (6 Greenl. 148) 
 
 i. 279, 287, 463, 479, 495 
 Dance v. Dance (1 Hag. Ec. 794) 
 
 ii. 46, 49 
 Danforth v. Reynolds (1 Vt. 259) 
 
 i. 427 
 D'Arcy v. Ketchum (11 Bow. 
 
 U.S. 165) ii. 114, 170o 
 
 Darden v. Joyner (9 Ire. 339) ii. 440 
 Dart V. Dart (3 Swab. & T. 208) 
 
 i. 762 o 
 Dartmouth College v. Woodward 
 
 (4 Wheat. 518) i. 665 ; ii. 199 
 
 D'Arusmot v. D'Arusmot (14 
 Law Reporter, 311; 8 West. 
 Law Jour. 548) ii. 854, 381, 385, 
 406, 409, 461, 516 
 
DEB 
 
 INDEX TO THE CASES CITED. 
 
 DES 
 
 Section 
 Dasent v. Dasent (1 Robertson, 
 
 800) ii. 128, 158 
 
 David V. David (27 Ala. 222) 
 
 i. 741, 767 ; ii. 658 
 Davidson v. Davidson (Deane & 
 Swabey, 132) ii. 613, 619 
 
 V. Moss (6 How. Missis. 673) 
 
 i. 209 
 Davies, In the Goods of (2 Curt. 
 Eg. 628) ii. 739 
 
 V. Davies (55 Barb. 130; 
 
 37 How. Pr. 45) i. 717; ii. 58, 60 
 
 V. Davies (2 Swab. & T. 
 
 437) ii. 498 
 
 a. Gatacre (8 Car. & P. 578) 
 
 i. 465 
 Davis V. Black (1 Gale & D. 432 ; 
 1 Q. B. 900) i. 347 
 
 V. Curry (2 Bibb, 238) 
 
 i. 418, 425 
 
 V. Davis (19 111. 334) ii. 63, 334, 
 
 546 
 
 </. Davis (30 111. 180) ii. 127 
 
 V. Davis (37 N. H. 191) 
 
 i. 819; u. 329 
 
 V. Davis (Poynter Mar. & 
 
 Div. 261) ii. 394 
 
 V. Dawes (4 Watts & S. 
 
 401) i. 677 
 
 V. Newton (6 Met. 537) 
 
 ii. 450, 734 
 
 V. Smith (5 Ga. 274) ii. 133 
 
 V. Wood (1 Wheat. 6) i. 540 
 
 Davol V. Davol (13 Mass. 264) ii. 376 
 
 V. Howland (14 Mass. 219) 
 
 ii. 709 
 Dawes v. Howard (4 Mass. 97) 
 
 ii. 528 
 Dawson v. Dawson (18 Mich. 
 335) i. 179 a; ii. 572 
 
 V. Dawson (2 PhilUm. 40) 
 
 ii. 467 
 
 V. Dawson (7 Ves. 172) 
 
 ii. 436, 506 
 Day V. Day (3 Green Ch. 444) ii. 614 
 
 V. Everett- (7 Mass. 145) ii. 528 
 
 V. Spread (Jebb & Bourke, 
 
 163) i. 626 
 
 Days V. Jarvis (2 Hag. Con. 172) 
 
 i. 294 
 Dean v. Dean (5 Pick. 428) ii. 524 
 
 V. Richmond (5 Pick. 461) 
 
 ii. 376, 523, 729, 730, 732, 
 
 736, 737 
 
 Deane v. Aveling (1 Robertson, 
 
 279) i. 55, 322, 326, 327, 328 ; 
 
 ii. 585, 597, 698 
 
 V. Deane (12 Jur. 63) ii. 30, 176, 
 
 245 
 De Blaquiere v. De Blaquiere (3 
 Hag. Ec. 322) ii. 401, 427, 429, 
 
 434, 435, 451, 457 
 
 Section 
 Decamp v. Decamp (1 Green 
 
 Ch. 294) ii. 327, S67 
 
 De Casinova, State v. (1 Texas, 
 
 401) ii. 123 
 
 Deck V. Deck (2 Swab. & T. 90) 
 
 ii. 131 
 Dedham v. Natick (16 Mass.135) 
 
 ii. 527, 528 
 Deerfield v. Arms (20 Pick. 480) 
 
 i. 289 
 De Gaillon v. L'Aigle (1 Bos. & 
 
 P. 357) 1. 592 
 
 Dejarnet v. Dejarnet (5 Dana, 
 
 499) ii. 93, 457, 512 
 
 Dejol V. Johnson (12 La. An. 853) 
 
 i. 547 
 De La Hay v. De La Hay (21 III. 
 
 252) i. 761 
 De Lane v. Moore (14 How. U. S. 
 
 253) i. 405 
 Delaney v. Brownell (4 Johns. 
 
 136) ii. 753 6 
 
 Delano w. JopIing<l Litt. 117) i. 417 
 Delaval, Rex v. (3 Bur. 1434) ii. 529 
 DeLeon v. Owen (3 Texas, 153) i. 83 
 Delliber „. Delliber (9 Conn. 
 
 233) ii. 38, 39, 45, 49, 233 
 
 De Manneville v. De Manneville 
 
 (10 Ves. 52) ii. 529, 548 
 
 , Rex V. (5 East, 221) ii. 529, 546 
 
 Deming v. WiUiams (26 Conn. 
 
 226) 1. 642 
 
 Dempster v. Dempster (2 Swab. 
 
 & T. 438) ii. 44, 65 
 
 Den V. Moore (2 Southard, 470) ii. 75 
 Denison v. Denison (35 Md. 361) 
 
 i. 279 a 
 Dennis v. Clark (2 Cush. 347) ii. 528 
 Denniss v. Denniss (3 Hag.'Ec. 
 
 348) i. 804 
 
 Deimy v. AshweU (1 Stra. 42) 
 
 i. 316 
 Dennys v. Sargeant (Car. & P. 
 
 419) . i. 554 
 
 Dent V. Dent (Law Rep. 1 P. & 
 
 M. 125) Ii. 227 
 
 V. Dent (4 Swab. & T. 105) 
 
 i. 95 ; ii. 57, 227 
 
 , Reg. V. (1 Car. & K. 97) 1. 530 
 
 , Rexu. (1 Car. &K. 97) i. 529 
 
 Denton v. Denton (1 Johns. Ch. 
 
 364) ii. 461, 508 
 
 Denton v. English (3 Brev. 147) i. 38 
 Depas w. Mayo (11 Misso. 314) i. 404 
 Dering v. Dering (Law Rep. 1 P. 
 
 &M.531) ii. 743 
 
 De Rose v. De Rose (Hopkins, 
 
 100) ii. 365 
 
 Derry v. Mazarine (1 Ld. Raym. 
 
 147) i. 590 
 
 Descelles v. Kadmus (8 Iowa, 51) 
 
 i. 568 
 
 xxix 
 
DOL 
 
 INDEX TO THE CASES CITED. 
 
 DUL 
 
 Seotioh" ) 
 De Sobry v. De Laistre (2 Har. 
 
 & J. Ibl) i. 418 
 
 Devaismes r. Devaismes (3 Code 
 Reporter, 124 ; 3 Am. Law 
 Journal, n. s. 279) i. 764 ; ii. 457 
 Devall V. Devall (4 Des. 79) i. 43 ; 
 ii. 508, 635 
 Devanbagh v. Devanbagh (5 
 Paige, 554) i. 71, 74, 331, 332, 333, 
 337 ; ii. 241, 256, 591, 592, 594, 599 
 
 V. Devanbagh (6 Paige, 
 
 175) i. 332 
 
 Dew V. Clark (1 Hag. Ec. 311) ii. 789 
 Dewey v. Humphrey (5 Pick. 
 
 187) i. 84 
 
 De Wurtz v. Hendricks (2 Bing. 
 
 314) ii. 75 
 
 Dial V. Neuffer (3 Rich. 78) i. 581 
 
 Dicken v. Dicken (38 Ga. 663) ii. 406 
 Dickens v. Dickens (2 Swab. & 
 
 T. 103) ii. 414 
 
 V. Dickens (2 Swab. & T. 
 
 645) ii. 438 
 
 Dickenson u. Blisset (1 Dick. 268) i. 133 
 
 u. Mavie (2 Dick. 582) ii. 385 
 
 Dickerman v. Graves (6 Gush. 
 
 308) ii. 723, 724 
 
 Dickinson v. Dickinson (3 Murph. 
 
 327) i. 24, 72, 698; ii. 233 
 
 Dickson u. Dickson (1 Yerg. 110) 
 
 i. 5, 9, 374 ; ii. 234, 700, 701, 702, 754 
 Diddear v. Paucit (3 Phillim. 
 
 580) i. 457 
 
 Dillinger's Appeal (11 Casey, 
 
 357) i. 653 
 
 Dillon V. Dillon (3 Curt. Ec. 86) 
 
 ii. 8, 17, 21, 39, 40, 42, 43, 80, 
 
 87, 280, 331, 337, 340, 617, 
 
 621, 637, 641 
 
 Ditson V. Ditson (4 R. I. 87) i. 10; 
 
 ii. 114, 144, 161, 162, 163 a, 213, 314 
 
 Dixon 0. Hurrell (8 Car. & P. 
 
 717) i. 578; ii. 375 
 
 w. People (18 Mich. 84) i. 453 
 
 V. Thatcher (14 Ark. 141) i. 424 
 
 Dobbs V. Dobbs (3 Edw. Ch. 
 
 377) ii. 338 
 
 Dobbyn v. Dobbyn (Poynter Mar. 
 
 & Div. 233) ii. 40 
 
 , Eex V. (4 Ad. & E. 644) 
 
 ii. 546 
 Dobson V. Butler (17 Misso. 87) 
 
 ii. 705 
 Dodge V. Dodge (7 Paige, 589) ii. 338 
 Doe V. Brown (5 Blackf. 809) ii. 712 
 
 V. Eslava (11 Ala. 1028) i. 417 
 
 V. Price (1 Man. & R. 683) i. 294 
 
 V. Roe (1 Edm. Sel. Cas. 
 
 344) i. 128 
 
 V. VardiU (5 B. & C. 438 ; 
 
 6 Bing. N. C. 385) i. 367, 548 
 
 Dole, State v. (20 La. An. 378) i. 293 
 
 XXX 
 
 Section 
 Dolphin V. Robins (7 H. L. Cas. 
 
 390) "■ 144, 205 
 
 Don v. Don (10 Scotch Sess. Cas. 
 
 N.s. 1046) , .„.!'• ^*^ 
 
 Donald v. Hewitt (33 Ala. 534) 
 
 i. 414, 430 
 Donegal v. Donegal (3. PhiUim. 
 
 586) 11- 1°°. 309 
 
 Donellan «.Donellan (2 Hag. Ec. 
 
 Supp. 144) ii- 253 
 
 Donnelly v. Donnelly (8B. Monr. 
 
 113) i- 442, 448, 508, 510 
 
 Donovan v. Donovan (9 Allen, 
 
 140) !• 190 b 
 
 Dormer v. Williams (1 Curt. Ec. 
 
 870) i- 292, 495 
 
 Dorsey v. Dorsey (7 "Watts, 349) 
 
 ii. 128, 159, 163 a, 178, 175, 197, 
 198, 233, 754 
 
 V. Goodenow (Wright, 120) 
 
 ii. 391, 898, 4U 
 
 V. Hardesty (9 Misso. 157) 
 
 i. 402 
 Doss 0. CampbeU (19 Ala. 590) 
 
 i. 405 
 Dougherty v. Dougherty (4 Halst. 
 Ch. 540) ii. 407 
 
 V. Snyder (15 S. & R. 84) 
 
 i. 405, 427, 530 
 Douglas V. Brown (2 Dow & C. 
 
 171) i. 423 
 
 Douglass V. Douglass (31 Iowa, 
 
 421) i. 803 
 
 V. Sanderson (2 Dall. 116) i. 540 
 
 Dow V. Dow ^ 38 N. H. 188) ii. 553 
 Downing v. Rugar (21, Wend^ 
 
 178) i. 624 
 
 Doyle V. Doyle (26 Misso. 545) 
 
 i. 746, 761, 768, 801, 802 ; 
 ii. 356, 653 
 Doyly's Case (McQueen H. L. 
 
 Pract. 654) i. 488 
 
 Drake w. Glover (30 Ala. 382) i. 414 
 Drew V. Canady (1 Mass. 158) i. 289 
 
 V. Clark (2 Add. Ec. 102) ii. 640 
 
 Droney u. Archer (2 Phillim. 
 
 327) i. 293, 294 
 
 Druramond v. Drummond (2 
 
 Swab. & T. 269) ii. 32, 82 
 
 Drysdale v. Drysdale (Law Rep. 
 
 1 P. & M. 365) ii. 316 
 
 Duberley v. Gunning (4 T. R. 
 
 651) ii. 7 
 
 Dufferin Peerage Case (2 H. L. 
 
 Cas. 47) i. 478 
 
 Duffy V. Insurance Co. (8 Watts 
 
 & S. 413) i. 653 
 
 Duins V. Donovan (3 Hag. Ec. 
 
 301) i. 294, 299 
 
 Duke V. Eulmer (5 Rich. Eq. 
 
 121) ii. 198 
 
 Dula V. State' (8 Yerg. 511) i. 677 
 
DTE 
 
 INDEX TO THE CASES CITED. 
 
 ELL 
 
 Section 
 Dumaresly v. Kshly ( 3 A. K. Mar. 
 
 368) i. 5, 218; 228, 253, 259, 279, 
 282, 283, 356 
 Dunbar v. Dunbar (Wright, 286) ii. 94 
 Dunbarton v. Franklin (19 N. H. 
 
 257) i. 279, 538 
 
 Duncan v. Duncan (12 Misso. 
 
 157) ii. 87 
 V. Duncan (2 Montlily Law 
 
 Mag. 612) i. 623, 531 ; ii. 269 
 D.Duncan (10 Ohio State, 
 
 181) i. 258 
 
 V. Duncan (19 Ves. 394) ii. 353 
 
 Dunham v. Dunham (6 Law Re- 
 porter, 139) ii. 616, 631 
 Dunlap V. Dunlap (Wright, 210) ii. 604 
 
 V. Dunlap (Wright, 659) ii. 285 
 
 Dunn V. Dunn (11 Mich. 284) ii. 605 
 
 V. Dunn (4 Paige, 425) i. 777 ; 
 
 ii. 157, 260, 761 ' 
 V. Dunn (2 Phillim. 403 ; 3 
 
 Phillim. 6) ii. 22, 26, 278 
 
 , Reg. o. (12 Ad. & E. 699) ii. 60 
 
 Dunnock v. Dannock (3 Md. Ch. 
 
 140) ii. 320, 365, 450 
 
 Duutze V. Levett (Ferg. 68, 385) 
 
 i. 6, 7 ; ii. 144, 146, 147, 148, 
 150, 171, 181 
 Dupont V. Dupont,-10 Iowa, 112) 
 
 ii. 92, 480 
 
 V. Johnson (1 Bailey Ch. 
 
 274) , ii. 528 
 
 Dupre u. Bo'ulard (10 La. An. 
 
 411) i. 375 
 
 Durand v. Her Husband. (4 Mart. 
 
 La. 174) i. 767 
 
 Durant v. Durant (1 Add. Ec. 
 114) ii. 386 
 
 V. Durant (2 Add. Ec. 267) ii. 256 
 
 V. Durant (1 Hag. Ec. 528) 
 
 ii. 404, 425, 447, 457, 467, 494 
 
 V. Durant (1 Hag. Ec. 733) 
 
 i. 64, 722, 726 ; ii. 22, 23, 33, 
 
 38, 44, 49, 64, 55, 56, 58, 
 
 70, 337, 339, 610 
 
 V. Titley (7 Price, 577) i. 637 
 
 Durham v. Lewiston (4 Greenl. 
 
 140) i. 675 
 
 Durie v. Norris (1 V. S. Mo. Law 
 
 Mag. 49) 1. 140 
 
 Du Terreaux v. Du Terreaux (1 
 
 Swab. & T. 555) i. 797 
 
 Dutton V. Dutton (30 Ind. 452) 
 
 i. 644 ; ii. 237 a 
 Dwelly V. Dwelly (46 Maine, 377) 
 
 ii. 283, 421, 497, 498 
 Dyer v. Dyer (5 N. H. 271) i. 780, 822 
 
 V. East (1 Vent. 42; 1 Mod. 
 
 9) i. 554 
 
 V. Smith (12 Conn. 384) 
 
 i. 427, 580 
 V. Smith (12 Conn. 429) i..428 
 
 Section 
 Dysart v. Dysart (5 Curt. Ec. 
 543) ii. 281 
 
 V. Dysart (11 Jur. 490) i. 732 
 
 V. Dysart (1 Robertson, 106) 
 
 i. 719, 726, 727, 734, 735, 741, 
 
 744, 767, 768, 804; ii. 38,52, 
 
 61, 316, 64.5, 659 
 
 V. Dysart (1 Robertson, 470) 
 
 i. 717, 732, 768; ii. 103 
 
 V. Dysart (1 Robertson, 643) 
 
 ii. 728 
 
 E. V. T. (3 Swab. & T. 312) ii. 583 
 Ealer v. Flomerfelt (1 Whart. 
 
 Dig. ed. of 1843,828; 1 Ashm. 
 
 53) ii. 724 
 
 Earle v. Dawes (3 Md. Ch. 230) i. 301 
 
 V. Earle (9 Texas, 630) i. 629 
 
 Early u. Doe (16 How. U. S. 
 
 610) ii. 314 
 
 Earp V. Earp (1 Jones Eq. 239) 
 
 ii. 72 337 
 Eaton V. Bright (2 Lee, 85) i. 437,' 443 
 Eden, Rex v. (Lotft, 72) ii. 75 
 
 Edgerly v. Whalan (106 Mass. 
 
 307) i. 616 
 
 Edmeston v. Cochrane (1 Fras. 
 
 Dom. Rel. 153) i. 249 
 
 Edmonds v. Her Husband (4 La. 
 
 An. 489) ii. 328 
 
 Edmonstone v. Lockhart (Ferg. 
 
 168) ii. 191 
 
 Edrington u. Mavfield (5 Texas, 
 
 363) i. 405 
 
 Edson V. Edson (SJBen. & H. Dig. 
 
 233) ii. 753 a, 753 c 
 
 Edwards v. Crock (4 Esp. 39) ii. 621 
 
 V. Edwards (30 Ala. 394) ii. 344 
 
 V. Edwards ( Wright, 308) ii. 409 
 
 V. Green (9 La. An. 317) i. 801 ; 
 
 ii. 163 a, 172 
 
 V. Pope (3 Scam. 465) i. 676, 683 
 
 , Rex V. (Russ. & Ry. 283) i. 292 
 
 Eidenmuller v. Eidenmuller (37 
 
 Cal. 364) i. 765 ; ii. 446 
 
 Eitel V. Walter (2 Bradf. 287) ii. 628 
 Eldred v. Eldred (2 Curt. Ec. 
 
 376) ii. 55, 80, 367, 623 
 
 Eliot V. Eliot (1 Hag. Con. 299) ii. 626 
 Eliah V. Leigh (6 T. R. 679) i. 591 ; 
 
 ii. 736 
 Ellenthorp v. Myers (2 Add. Ec. 
 
 168) i. 739; ii. 640 
 
 Ellerton v. GastriU (1 Comyns, 
 
 318) i. 316 
 
 EUiott V. Elliott (1 Dev. & Bat. 
 
 Eq. 57) i. 651 
 
 V. Gurr (2 Phillim. 16) i. 106, 111, 
 
 112, 116, 116, 153, 339 ; ii. 739 
 
 V. McClelland (17 Ala. 206) 
 
 i. 413 
 V. Peirsol (1 Pet. 328) i. 540 
 
 xxxi 
 
EVA 
 
 INDEX TO THE CASES CITED. 
 
 PEL 
 
 Sectioit 
 i. 473 ; 
 ii. 628 
 ■ V. Ellis (4 Swab. & T. 154) 
 
 ElUs V. Ellis (11 Mass. 92) 
 
 V. Mathews (19 Texas, 390) 
 
 i. 194 
 i. 413 
 i. 424 
 1. 722 
 
 V. White (25 Ala. 540) 
 
 V. Wiley (17 Texas, 134) 
 
 Elmes V. Elmes (9 Barr, 166) 
 Elmore v. Elmore (10 Cal. 224) ii. 519 
 Elsam V. Faucett (2 Esp. 562) ii. 621 
 Else V. Else (Milw. 146) i. 457, 488, 526 
 Elwell V. Elwell (32 Maine, 887) i. 102, 
 
 834 
 Elwesu. Elwes (1 Hag. Con. 269) ii. 43, 
 253, 285, 338, 339, 629, 637 
 Elworthy v. Bird (2 Sim. & S. 
 
 372) i. 636 
 
 Elyot's Case (Cart. 63) i. 183 
 
 Elzey V. Elzey (1 Houston, 808) i. 128, 
 132, 185 a ; ii. 292 
 Embree v. Embree (58 111. 394) i. 718, 
 745 ; il, 819 
 Emerson v. White (9 Eost. N. H. 
 
 482) i. 540 
 
 Emery u. Berry (8 Eost. N. H. 
 
 478) i. 424, 426 
 V. Emery (1 Y. & J. 501; 
 
 6 Price, 336) i. 568, 570, 572 
 
 V. Gowen (4 Greenl. 33) ii. 528 
 
 V. Neiglibour (2 Halst. 142) i. 649 
 
 Emmett v. Norton (8 Car. & P. 
 
 506) i. 556, 557, 570 
 
 Emmons v, Emmons (Walk. 
 
 Mich. 582) ii. 30, 333, 838, 344, 642 
 English V. Enghsh (6 Grant, U. 
 
 C. Ch. 580) i. 786 
 
 Ennis v. Smith (14 How. U. S. 
 
 400) i. 422, 426, 427, 429, 478 
 
 Enticknap v. Eice (4 Swab. & T. 
 
 136) ii. 041 
 
 EpUng V. Epling (1 Bush. 74) ii. 843 a 
 Errisman v. Errisman (25 111. 
 
 186) ii. 367, 502 
 
 Erwin v. Erwin (4 Jones Eq. 82) 
 
 ii. 684 
 Eshbach v. Eshbach (11 Harris, 
 
 Pa. 343) i. 718, 729, 779, 799 
 
 Essex V. Essex (2 Howell St. Tr. 
 
 786) i. 333,385; ii. 597 
 
 Estill V. Rogers (1 Bush, 62) i. 156, 
 163 a, 279 
 Etherington v. Parrot (2 Ld. 
 
 Eaym. 1006 ; 1 Salk. 118) i. 554, 
 555 556 
 Etna, The (Ware, 462) ii! 628 
 
 Evans v. Evans (5 B. Monr. 278) 
 
 ii. 260, 751 
 V. Evans (1 Hag. Con. 85) i. 29, 
 
 167, 717, 720, 722, 726, 729, 730, 732, 
 
 735, 738, 741, 743, 758, 759, 765, 771 ; 
 ii. 231, 234, 275, 343, 645 
 
 xxxii 
 
 Section 
 Evans v. Evans (7 Jur. 1046) ii. 38, 58 
 
 V. Evans (1 Robertson, 165) 
 
 ii. 281, 285, 687 
 
 V. Evans (1 Swab. & T. 
 
 173) "• ^^^ 
 
 V. Evans (1 Swab. & T. 
 
 328) "^^ "^° 
 
 V. Eisher (5 Gilman,;569) i. 570, 
 
 Everingham v. Messroom (2 
 
 Brev. 461) '• 6*0 
 
 Everton v. Everton (5 Jones, 
 
 N. C. 202) i. 717, 736, 748 
 
 Ewell V. State (6 Terg. 364) i. 540 
 Ewen's Case (6 N. Y. City Hall 
 
 Rec. 65) i- 524 
 
 Ewing V. Ewing (14 Ind. 468) ii. 750 
 
 V. Ewing (2 Philad. 371) ii. 345 
 
 V. Savery (3 Bibb, 235) i. 540 
 
 V. Wheatley (2 Hag. Con. 
 
 175) i.l67 
 
 Eyre v. Shaftsbury (2 P. Wms. 
 
 103) ii.527 
 
 E. V. D. (4 Swab. & T. 86) i. 331 o, 
 882 ; ii. 282 a, 284 a, 588 a, 597, 600 a 
 Fairchild v. Adams (4 Law Re- 
 porter, N. s. 278) - ii. 640 
 Eales V. Mayberry (2 Gallis. 
 
 660) ii- 75 
 
 Faremouth v. Watson (1 PhiUim. 
 
 366) ii. 298, 309 
 
 Farley v. Farley (30 Iowa, 853) ii. 445, 
 
 457 
 Farnsworth v. Richardson (35 
 
 Maine, 267) ii. 549 
 
 Farr v. Farr (34 Missis. 597) ii. 604, 
 
 605 
 Farrer v. Granard (1 New Rep. 
 
 80) i. 591 
 
 Farwell v. Farwell (31 Maine, 
 
 591) ii. 311, 898, 421, 496 
 
 V. Harris (12 La. An. 50) i. 411, 
 
 425 
 Faulder v. Silk (3 Camp. 126) ii. 506 
 Faulk V. Faulk (28 Texas, 653) ii. 546, 
 
 549 
 Faussett v. Faussett (13 Jur. 
 
 688) ii. 642 
 
 Feaubert u. Turst (Prec. Ch. 
 
 207) i. 629 
 
 Feigley v. Feigley (7 Md. 537) 
 
 ii. 287, 319, 601 
 Feilding's Case (14 Howell St. 
 
 Tr. 1327) i. 496 
 
 Felker v. Emerson (16 Vt. 658) 
 
 i. 568 
 Fellowes v. Stewart (2 PhiUim. 
 
 288) i. 292 
 
 Fellows V. Fellows (31 Maine, 
 
 342) i. 786 
 
PIS 
 
 INDEX TO THE CASES CITED. 
 
 FOR 
 
 Section 
 FeUows V. Fellows (8 N. H. 160) 
 
 i. 819, 824 ; ii. 104, 141, 144, 178, 
 342, 343, 344, 661 
 Fenner v. Lewis (10 Johns. 38) 
 
 i. 613, 650 ; ii. 401 
 Fenton u. HoUoway (1 Stark. 
 126) i. 181 
 
 V. Livingstone {8 Macq. 
 
 Scotch Ap.Cas. 497) 1.548 
 
 V. Reed (4 Johns. 52) i. 279, 299, 
 
 442, 508 
 Fera v. Fera (98 Mass. 155) i. 793 ; 
 
 ii. 767 
 Ferguson v. Cliflford (87 N. H. 
 86) i. 418, 430, 475 
 
 V. Ferguson (1 Barb. Ch. 
 
 604) ii. 258, 684 
 
 V. Ferguson (8 Sandf. 307) 
 
 ii. 258, 614, 620 
 
 u. Kays (1 Zab. 431) i. 84 
 
 Feriat v. Gojon (Hopkins, 478) 
 
 i. 105, 166,218,219; ii. 291 
 Ferrers v. Ferrers (1 Hag. Con. 
 130) ii. 23, 33, 56, 108 
 
 V. Ferrers (1 Hag. Ec. 781) ii. 47 
 
 Ferrie v. Public Administrator 
 
 (4 Bradf. 28) i. 283, 295, 506, 508 
 Ferrier v. Ferrier (4 Edw. Ch. 
 
 296) ii. 319, 668 
 
 Ferris v. Ferris (8 Conn. 166) 
 
 i. 178, 332 ; ii. 575 
 Fettsu. Foster (2 Hay w. 102) 1.442 
 Fickle V. Fickle (5 Yerg. 203) 
 
 ii. 128, 210 
 Field's Marriage Annulling Bill 
 
 (2 H. L. Cas. 48) i. 196 
 
 Field V. Flanders (40 111. 470) ii. 753 e 
 
 V. Lucas (21 Ga. 447) ii. 568 
 
 Fielder v. Smith (2 Hag. Con. 
 
 198) i. 298, 294 
 
 Finch V. Finch (22 Conn. 411) ii. 557 
 
 V. Finch (14 Ga. 362) i. 76 
 
 Findley v. Cooley (1 Blackf. 262) i. 173 
 Fink V. Hake (6 "Watts, 181) 
 
 ii. 714, 715 
 Finlay v. Finlay (31 Law J. Mat. 
 Cas. 149) i. 475 
 
 V. Finlay (Milward, 575) 
 
 ii. 457, 460 
 Finley v. Finley (9 Dana, 52) 
 
 i. 718, 722, 748 ; ii. 365 
 Finney v. Finney (Law Eep. 1 
 
 P. & M. 483) ii. 766 
 
 FischU V. Fischli (1 Blackf. 360) 
 
 ii. 255, 856, 376, 881, 516 
 Fisher v. Boody (1 Curt. C. C. 
 
 206) i. 178 
 V. Filbert (6 Barr, 61) i. 653 
 
 V. Fisher (32 Iowa, 20) 
 
 ii. 429 a, 430 
 
 V. Fisher (2 Swab. & T. 
 
 410) ii- 477, 479 
 
 VOL. I. 
 
 Section 
 Fishli V. Fishli (2 Litt. 337) i. 779, 786, 
 
 810; ii. 128, 176, 237, 881, 398, 457, 
 
 472, 604, 512,5)6,678 
 
 Fitler v. Fitler (9 Casey, 50) ii. 657 
 
 Fitts V. Fitts (46 N. H. 184) i. 822 
 
 «. Fitts (14 Texas, 443) ii. 514 
 
 Fitzgerald v. Fitzgerald (Law 
 
 Eep. 1 P. & M. 694) i. 784 a 
 
 V. Fitzgerald (1 Lee, 649) ii. 387 
 
 Fitzmaurice v. Fitzmaurice (1 
 
 Lee, 16) i. 250 
 
 Fitzpatrick v. Fitzpatrick (6 Nev. 
 
 68) i. 145 
 
 Fivecoat v. Fivecoat (32 Iowa, 
 
 198) ii. 379 
 
 Flaherty, Reg. u. (2 Car. & K. 
 
 782) i. 497, 600 
 
 Flavell V. Flavell (5 C. E. Green, 
 
 211; 7 C. E. Green, 599) 
 
 ii. 80, 89, 625 
 Fleming'v. Fleming (4 Bing. 266 ; 
 
 12 J. B. Moore, 500) i. 434, 437, 
 488, 448 
 Fletcher v. Henley (13 La. An. 
 
 150) ii. 497, 498 
 
 V. Morey (2 Story, 555) i. 70 
 
 Fleytas v. Pigneguy (9 La. 419) 
 
 i. 741, 744, 767 
 Flint V. Jones (5 Wis. 424) ii. 572 
 
 Flintan, Rex v. (1 B. & Ad. 227) 
 
 i. 574, 800 
 Florentine v. Wilson (Hill & 
 
 Denio, 303) i. 650 
 
 Flower v. Adam (2 Taunt. 314) ii. 75 
 Flowers v. Foreman (23 How. 
 
 U. S. 132) ii. 133, 159 
 
 V. Hanalson (6 Yerg. 494) i. 540 
 
 Floyd V. Black (Litt. Sel. Cas. 
 
 11) ii. 311 
 
 Fluok V. ToUemache (1 Car. & 
 
 P. 5) ii. 528 
 
 Foden v. Finney (4 Russ. 428) ii. 358 
 Foljambe's Case (3 Salk. 138) i. 661 
 FoUiott V. Ogden (1 H. Bl. 123) ii. 701 
 Foote u. Foote (22 111. 425) 
 
 ii. 429, 445, 466, 563 
 
 V. Hayne (1 Car. & P. 545) i. 170 
 
 Forbes v. Strathraore (Ferg. 
 
 Consist. Law Rep. 113) i. 260 
 
 Ford ■;. Ford (10 Abb. Pr. n. s. 
 
 74; 41 How. Pr. 169) ii. 498 
 
 V. Ford (4 Ala. 142) i. 442 
 
 V. Ford (2 Halst. Ch. 642) ii. 682 
 
 V. Ford (7 Humph. 92) i. 640 
 
 V. Ford (104 Mass. 198) ii. 661 a 
 
 V. Monroe (20 Wend. 210) ii. 528 
 
 Fore, State v. (1 Ire. 378) i. 308 
 
 Forney v. Hallacher (8 S. & R. 
 
 159) i. 497, 498 
 
 Fornshill v. Murray (1 Bland, 
 
 479) i. 6, 105, 124, 365, 438, 441, 442, 
 497, 498, 523 ; ii. 291, 355 
 
 ! xxxiii 
 
FRE 
 
 INDEX TO THE OASES CITED. 
 
 G. V. G. 
 
 Section 
 Forrest ». Forrest (3 Bosw. 661) 
 
 ii. 478, 492, 495, 497 
 
 V. Forrest (6 Bosw. 672) 
 
 ii. 421, 461 
 
 V. Forrest (8 Bosw. 640) 
 
 ii. 432, 450, 457, 478, 495 
 
 V. Forrest (6 Duer, 102) 
 
 ii. 255, 495, 707 
 
 V. Forrest (25 N. Y. 501) 
 
 ii. 425, 467, 472, 495 
 Forrister v. Watson (6 Scotch 
 
 Sess. Cas. N. s. 1358) ii. 148, 149 
 Forster v. Forster (1 Hag. Con. 
 144) i. 777, 778 ; ii. 5, 79, 80, 85, 88, 
 89, 341, 346, 623, 625, 637 
 
 V. Forster (3 Swab. & T. 
 
 151) ii. 743 
 
 Forsyth v. Kreakba,um (7 T. B. 
 
 Monr. 93) ii. 527 
 
 Foss V. Foss (12 Allen, 26) i. 190 a ; 
 
 ii. 284 
 Foster v. Hall (2 J. J. Mar. 546) 
 
 ii. 298 
 
 V. Means (1 Speer Bq. 569) 
 
 i. 124, 125, 127, 136 
 
 V. Taylor (2 Tenn. 191) 
 
 i. 414, 424 
 Foukeu. Fleming (13 Md. 392) i. 412 
 Foulkes V. Foulkes (Poynter 
 
 Mar. & Div. 256) ii. 429, 449, 457 
 Fowler w. McCartney (27 Missis. 
 
 509) ii. 570 
 
 V. Smith (2 Cal. 39) i. 399 
 
 Fox V. Dawson's Curator (8 
 
 Mart. La. 94) ii. 696 
 
 V. Fox (25 Cal. 587) ii. 262 
 
 V. Larabson (3 Halst. 275) i. 469 
 
 Foxcroft's case (1 Kol. Ab. 359) i. 152 
 Foy V. Foy (13 Ire. 90) i. 797, 825 ; 
 ii. 88, 90, 278, 615 
 Frakes v. Brown (2 Blackf. 295) 
 
 ii. 450, 501, 502 
 France v. Andrews (15 Q. B. 
 
 756) i. 468 
 
 Frankfort </. Frankfort (3 Curt. 
 
 Ec. 715) ii. 260, 425 
 V. Frankfort (4 Notes Cas. 
 
 282) ii. 374, 448, 449 
 
 Franklin v. Franklin (7 Jur. 
 
 135) ii. 58 
 
 V. Stagg (32 Misso. 193) ii. 753 e 
 
 Franks, Ex parte (7 Bing. 762) i. 590 
 Frarell v. Frarell (Wright, 455) 
 
 ii. 676, 677 
 Frary u. Frary '(10 N. H. 61) 
 
 ii. 128, 173, 175, 682 
 Fraser u. Fraser (5 Notes Cas. 
 
 20) ii. 620 
 V. Fraser (Poynter Mar. & 
 
 Div. 248) ii. 404 
 
 Fredd v. Eves (4 Harring. Del. 
 
 385) i. 556, 570, 678, 619 
 
 xxxiv 
 
 Seoiiok 
 Freeking v. Freeking (19 Iowa, 
 
 34) ii. 684 a 
 
 Freeland v. Eldridge (19 Misso. 
 
 V. Freeland (19 Misso. 354) 
 
 i. 773 ; ii. 667 
 Freeman v. Freeman (3 West. 
 Law Jour. 475) ii. 141, 144 
 
 V. Sedgwick (6 Gill, 28) u. 75 
 
 Freer v. Walker (1 Bailey, 184) i. 586 
 Freigley v. Freigley (7 Md. 537) 
 
 ii. 446 
 
 French v. French (14 Gray, 186) 
 
 ii. 60, 259, 284 
 
 V. French (4 Mass. 587) i. 744 ; 
 
 ii. 498 
 Frest, State v, (4 Harring. Del. 
 
 58) ii. 123 
 
 Friend v. Friend (Wright, 639) 
 
 i. 786, 810 ; ii. 30, 256, 278, 674 
 Frith V. Frith (18 Ga. 273) i. 191 ; 
 
 ii. 402 
 
 V. Sprague (14 Mass. 455) 
 
 i. 409, 427 
 Fritz V. Fiitz (23 Ind. 388) ii. 326, 
 
 343 a 
 Frost V. Frost (17 N. H. 251) i. 790 ; 
 
 ii. 682 
 
 V. Willis (13 Vt. 202) i. 578 
 
 Fry V. Fry (7 Paige, 461) ii. 379, 733 
 
 , State V. (4 Misso. 120) i. 5, 666, 
 
 668, 678, 686, 693 ; ii. 192 
 Fulgham v. State (46 Ala. 143) i. 754 
 Fulk V. Fulk (8 Blackf. 661) ii. 379 
 Fuller V. Fuller (17 Cal. 605) i. 497 ; 
 
 ii. 625 
 FuUerton v. Bank of the United 
 
 States (1 Pet. 604) i. 84 
 
 Fulton V. Fulton (36 Missis. 517) 
 
 i. 758, 773, 783, 785, 786 ; 
 ii. 255, 673 
 
 V. Fulton (12 Scotch Sess. 
 
 Cas. 1104) i. 723 
 
 Fultz V. Fox (9 B. Monr. 499) 
 
 i. 99, 667 
 Ful wood's Case (Cro. Car. 482) 
 
 i. 211, 215 
 Furlong v. Hyson (35 Maine, 332) 
 
 i. 556, 617 
 Furlonger v. Furlonger (5 Notes 
 
 Cas. 422) i. 761 
 
 Furness v. Furness (2 Swab. & T. 
 
 63) ii. 64 
 
 Furst V. Furst (Poynter Mar. & 
 
 L>iv. 260) ii. 394 
 
 Fussell V. Dowding (Law Rep. 14 
 
 Eq. 421) ii. 718 
 
 Fyler v. Fyler (Deane & Swabey, 
 175) ii. 394 
 
 G. V. G. (Law Rep. 2 P. & M. 
 287) i. 321, 332, 338 a ; ii. 264, 588 a 
 
GEI 
 
 INDEX TO THE CASES CITED. 
 
 GLB 
 
 Section 
 G. V. G. (33 Md. 401) ■ i. 828 a, 338 6, 
 
 389 a 
 G.v. T. (1 Spinks, 389) ii. 600 
 
 Gage V. Gage (2 Dane Ab. 809) 
 
 ii. 173, 377 
 Gahagan v. People (1 Parker, 
 
 378) i. 499, 532 
 
 Gaillard v. Gaillard (23 Missis. 
 
 152) i. 810 
 
 Gaines v. Gaines (9 B. Monr. 
 295) i. 678, 687, 689, 691, 783 ; 
 
 ii. 363, 375, 379, 751 
 
 V. Eelf (12 How. U. S. 472) 
 
 i. 299, 473, 497 ; ii. 765 
 Gains v. Bulford (1 Dana, 481) i. 668 
 Galland v. Galland (38 Cal. 265) 
 
 ii. 355 
 Gale V. Gale (19 Barb. 249) i. 209 
 
 V. Gale (2 Robertson, 421) 
 
 i. 726, 727 
 
 , State V. (7 Wis. 693) i. 84 
 
 Galloway v.' Holmes (1 Doug. 
 
 Mich. 330) i. 214 
 
 Gait V. Galloway (4 Pet. 332) i. 469 
 Galwith V. Galwith (4 Har. & 
 
 McH. 477) ii. 355 
 
 Ganer v. Lanesborough (Peake, 
 
 17) i. 299, 477, 529 
 
 Garbrandu. Allen (Comb. 450) i. 554 
 Gardners. Gardner (2 Gray, 434) 
 
 ii. 45, 49, 61, 52, 58 
 
 V. "Walker (Stra. 503) ii. 362 
 
 Gairat v. Garrat (4 Yeates, 244) 
 
 ii. 288, 604, 607 
 Garrett v. Garrett (12 Ind. 407) ii. 847 
 Gary v. May (16 Ohio, 66) ii. 315 
 
 Gaston v. Frankum (11 Eng. L. 
 
 & Eq. 226 ; 16 Jur. 507) i. 582 
 
 Gatehouse v. Gatehouse (Law 
 
 Eep. 1 P. & M. 331) i. 784 a 
 
 Gatewood v. Tunk (3 Bibb, 246) 
 
 i. 284 
 Gathings v. Williams (5 Ire. 487) 
 
 i. 105, 111, 537 
 Gatling v. Newell (9 Ind. 572) i. 209 
 Gautt V. Gautt (12 La. An. 673) 
 
 i. 412 
 Gavin v. Burton (8 Ind. 69) i. 144 
 Gaylor v. McHenry (15 Ind. 883) 
 
 i. 629 
 Gaylord v. Gaylord (4 Jones Eq. 
 
 74) ii. 496 
 
 Gee V. Thompson (11 La. An. 
 
 657) ii. 729, 730 
 
 Geils V. Dickenson (20 Eng. L. 
 & Eq. 1 ; 15 Scotch Sess. Gas. 
 N. s. H. of L. 28) ii. 202 
 
 V. Geils (1 Macq. Scotch 
 
 Ap. Cas. 36) ii. 157 
 
 V. Geils (1 Macq. Scotch 
 
 Ap. Cas. 255) ii. 148, 149, 202 
 V. Geils (6 Notes Cas. 101) i. 739 
 
 Seotion 
 George v. George (Law Rep. 1 P. 
 
 & M. 554) ii. 456 
 V. Thomas (10 U. C. Q. B. 
 
 604) i. 444 
 
 Georgia Railroad & Banking Co. 
 
 V. Harris (5 Ga. 527) ii. 133 
 
 Gerard v. Gerard (2 Barb. Ch. 73) 
 
 ii. 495, 498 
 Germond v. Germond (6 Johns. 
 
 Ch. 347) ii. 604, 608 
 
 V. Germond (1 Paige, 88) 
 
 ii. 365, 406 
 
 V. Germond (4 Paige, 643) 
 
 ii. 457, 461 
 Geron v. Felder (15 Ala. 304) i. 424 
 Gethin v. Gethin (2 Swab. & T. 
 
 560) ii. 32 
 
 Gholston V. Gholston (31 Ga. 
 
 625) i. 733, 762 
 
 Gibert, United States u. (2 Sum- 
 ner, 19) ii. 640 
 Gibson v. State (88 Missis. 313) i. 453 
 Gilbert v. Thomas (3 Kelly, 575) 
 
 ii. 233, 255 
 Gilchrist v. Bale (8 Watts, 855) 
 
 i. 625 ; ii. 661 
 
 V. Brown (4 T. R. 766) i. 592 
 
 Gill V. Gill (2 Add. Ec. 382) i. 771 
 
 w. Read (5 R. I. 843) i. 557, 620, 
 
 621 ; ii. 558, 767 
 Gilleland v. Martin (3 McLean, 
 
 490) i. 452 
 
 Gillespie w.Worford (2 Cold. 632) ii. 712 
 Gillin waters u. Gdlinwaters (28 
 
 Misso. 60) i. 798, 808 
 
 Gilman v. Andrus (28 Vt. 241) i. 553 
 Gilmer v. Ware (19 Ala. 252) i. 214 
 Gilmore v. Gilmore (5 Jones Eq. 
 
 284) ii. 504 
 Gilpin V. Gilpin (3 Hag. Ec. 150) 
 
 ii. 17, 342, 346 
 Ginger v. Ginger (Law Rep. 1 P. 
 
 & M. 37) ii. 642 
 
 Gipps V. Gipps (11 H. L. Cas. 1 ; 
 
 3 Swab. & T. 116) ii. 25 a, 237 a 
 Girardy v. Richardson (1 Esp. 
 
 13) ii. 75 
 
 Girod V. Lewis (6 Mart. La. 559) i. 159 
 Gishwiler v. Dodez (4 Ohio State, 
 
 616) ii. 529 
 
 Gist V. McJunkin (2 Rich. 154) ii. 672 
 Given v. Marr (27 Maine, 212) 
 
 i. 99, 698 ; ii. 706, 710 
 Glaze, State v. (9 Ala. 283) i. 825 
 
 Gleason v. Gleason (4 Wis. 64) 
 
 i. 789; ii. 161 
 Glen, Ex parte (4 Des. 546J i. 128 ; 
 
 ii. 666 
 Glenn v. Glenn (7 T. B. Monr. 
 
 285) ii. 863 
 Glennie v. Glennie (3 Swab. & 
 
 T. 109) ii. 417 
 
 XXXV 
 
GOS 
 
 INDEX TO THE CASES CITED. 
 
 GBB 
 
 Seotiok 
 Glover v. Glover (16 Ala. 440) 
 
 ii. 128, 355, 358 
 Goddard v. Beebe (4 Greene, 
 
 Iowa, 126) i. 644 a 
 
 Goddin v. Shipley (7 B. Monr. 
 
 575) i. 402 
 
 Godfrey v. Brooks (5 Harring. 
 
 Del. 896) i. 613 
 
 V. Godfrey (27 Ga. 466) ii. 314 
 
 V. Hays (6 Ala. 501) ii. 528 
 
 Godwin v. Lunan (Jefferson, 96) i. 71 
 Goldbeck v. Goldbeck (3 C. E. 
 
 Green, 42) i. 805 a; ii. 682 
 
 Goldsmidw. Bromer (1 Hag. Con. 
 
 324) i. 394 
 Goldsmith v. Goldsmith (6 Mich. 
 
 285) ii. 421 
 
 Gonsolis V. Donchouquette (1 
 
 Misso. 666) i. 648 
 
 Goodall V. Goodall (2 Lee, 264) ii. 386 
 
 V. Goodall (2 Lee, 384) ii. 89 
 
 V. Thurman (1 Head, 209) 
 
 i. 314 
 Goode V. Goode (2 Swab. & T. 
 
 253) ii. 98 
 
 Goodheim v. Goodheim (2 Swab. 
 
 & T. 250) ii. 446 
 
 Goodin v. Smith (Milward, 236) 
 
 ii. 260, 754 
 Gooding, Reg. v. (Car. & M.297) 
 
 i. 481 
 Goodman v. Griffin (3 Stew. 160) i. 413 
 Goodrich V. Bryant (5 Sneed, 
 
 325) ■ i. 655 
 
 V. Goodrich (44 Ala. 670) 
 
 ii. 532 
 Goodright v. Saul (4 T. R. 356) i. 448 
 Goodwin v. Appleton (22 Maine, 
 453) i. 425 
 
 V. Goodwin (4 Day, 343) il. 238 
 
 V. Goodwin (45 Maine, 377) 
 
 ii. 212, 682 
 
 V. Thompson (2 Greene, 
 
 Iowa, 329) i. 145, 294 
 
 Gordon v. EnglegraafF (Ferg. 
 251) • u. 176 
 
 V. Hobart (2 Sumner, 401) i. 70 
 
 V. Potter (17 Vt. 348) ii. 628, 
 
 556 
 
 V. Pye (Ferg. 276) i. 7 ; ii. 146, 
 
 148 
 
 , Rex V. (Russ. & Ry. 48) i. 144 
 
 Gore V. Gibson (13 M. & W. 623) 
 
 i. 131 
 Gorman v. State (23 Texas, 646) 
 
 i. 454 
 Goshen v. Richmond (4 Allen, 
 458) i. 95, 101, 137, 658 
 
 V. Stonington (4 Conn. 209) 
 
 i. 291, 495, 496, 658, 670 
 Gosliu V. Clark (12 C. B. n. s. 
 681) ii. 718 
 
 xxxvi 
 
 Section 
 Goss V. Goss (29 Ga. 109) ii- 497 
 
 Gould V. Gould (2 Aikins, 180) 
 
 ii. 231, 241 
 
 V. Gould (1 Met. 382) ii. 296 
 
 V. Webster (1 Tyler, 409) 
 
 ii. 712 
 Govane's Case (2 Bland, 570} ii. 355 
 Governor v. The Rector (10 
 
 Humph. 57) i. 144, 174, 295, 344 
 Govier v. Hancock (6 T. R. 603) 
 
 i. 574, 626, 800 ; ii. 76 
 
 Grace, Slave (2 Hag. Adm. 94) ii. 141 
 
 Graecen v. Graecen (1 Green Ch. 
 
 459) i. 719, 726, 730, 744, 768 ; 
 
 ii. 228, 657 
 
 Graham's Case ( 2 Lewin, 97) i. 228, 
 
 265 
 Graham v. Bennet (2 Cal. 503) 
 
 i. 279, 289, 301 
 
 V. Law (6 U. C. C. P. 310) 
 
 ^ i. 443, 524, 628 
 
 V. Little (3 Jones Eq. 162) i. 193 
 
 Grant's Succession (14 La An. 
 
 795) i. 425 
 
 Grant v. Grant (2 Curt. Ec. 16) 
 
 ii. 245,613, 615, 620, 629, 631, 646 
 
 V. Grant (10 Jur. 103) ii. 88, 622 
 
 V. Mennons (Ferg. Consist. 
 
 Law, App. 110) i. 234, 238 
 
 V. Swift (4 Johns. 34) ii. 701 
 
 Graves v. Cole (7 Harris, Pa. 171) 
 
 ii. 391, 399 
 
 V. Graves (3 Curt. Ec. 235) 
 
 i. 179 ; ii. 17, 21, 611, 635 
 
 V. Graves (2 Paige, 62) 1 ii. 235, 
 
 236, 365, 410, 745 
 
 V. Graves (3 Swab. & T. 
 
 350) ii. 673, 674 
 
 Gray v. Askew (3 Ohio, 466) i. 85 
 
 V. Gray (16 Ala. 779) i. 782, 783, 
 
 798, 808 ; ii. 250, 668, 672 
 
 V. Gray (2 Swab. & T. 263) ii. 32 
 
 V. Hawes (8 Cal. 562) ii. 159 
 
 V. Otis (11 Vt. 628) i. 567 
 
 Green, Commonwealth v. (17 
 Mass. 515) ii. 701, 702 
 
 V. Green (7Ind. 113) ii. 230, 314, 
 
 516 
 
 V. Otte (1 Sim. & S. 250) ii. 734 
 
 V. Pallas (1 Beasley, 267) i. 618 
 
 V. Sarmiento (Pet. C. C. 
 
 74) i. 402 
 
 V. Sperry (16 Vt. 390) 1. 556, 657 
 
 , United States v. (3 Mason, 
 
 482) ii. 629, 546 
 
 Greene v. Greene (2 Gray, 361 ; 
 4 Am. Law Register, 42) ii. 753, 
 753 a, 753 c, 753 d, 760, 764 
 
 V. Greene (11 Pick. 410) ii. 121, 
 
 126, 126, 173, 176, 180 
 Greenhill v. Ford (1 Fras. Dom. 
 Rel. 667) it. 49 
 
GRU 
 
 INDEX TO THE CASES CITED. 
 
 HAL 
 
 Seotion 
 Greenhill v. Ford (1 Shaw Ap. 
 
 Cas. 435) ii. 70 
 V. Greenhill (1 Curt. Ec. 
 
 462) ii. 498, 531 
 , Rex V. (6 Nev. & M. 244 ; 
 
 4 Ad. & E. 624) ii. 529, 546 
 
 Greenland v. Brown (1 Des. 196) 
 
 ii. 362, 502 
 Greenlaw v. Greenlaw (12 N. H. 
 
 200) i. 99, 698 ; ii. 173, 332 
 
 Greensborough v. Underbill (12 
 
 Vt. 604) i. 453 
 
 Greenstreet K. Cumyns (2Phillim. 
 
 10 ; 2 Hag. Con. 332) ii. 80, 587, 596, 
 
 598 
 Greenwood u. Curtis (6 Mass. 
 
 358) i. 376. 390 
 
 V. Spiller (2 Scam. 502) i. 540 
 
 Greg V. Greg {2 Ad. Ec. 276) ii. 421 
 Gregg V. Wyman (4 Cush. 332) ii. 75 
 Gregory v. Paul (15 Mass. 31) i. 601 
 
 V. Pierce (4 Met. 478) i. 601, 777 ; 
 
 ii. 674 
 Gresse v. Gresse (1 PhiUim. 210) 
 
 ii. 434 
 Griffini). Banks (37 N.T. 621) 1650 
 
 V. Griffin (8 B. Monr. 120) i. 35, 
 
 768 ; ii. 358, 766 
 V. Griffin (23 How. N. Y. 
 
 Pr. 189; 21 lb. 364) ii. 432, 478 
 V. Reynolds (17 How. U. S. 
 
 609) i. 469 
 
 Griffing V. Hopkins (Walk. Mich. 
 
 49) ii. 527 
 
 Griffiths V. Reed (1 Hag. Ec. 
 
 195) ii. 631 
 
 Grimani v. Draper (12 Jur. 925) i. 180 ; 
 
 ii. 563 
 Grimbaldeston o. Anderson (1 
 
 PhiUim. 147) ii. 585 
 
 V. Anderson (3 PhiUim. 155) ii. 596 
 
 Grimm v. Grimm (1 E. D. Smith, 
 
 190) ii. 498 
 
 Grindall v. Grindall (3 Hag. Ec. 
 
 259) ii. 637 
 
 Grindell v. Godmand (13 Legal 
 
 Observer, 467 ; 1 Nev. & P. 
 
 168; 5 Ad. & E. 755; 2 Har. 
 
 & W. 339) ii. 388, 391 
 
 Grisham v. State (2 Yerg. 589) i. 279 
 Groff u. Groff (14 S. & R. 181) ii. 753 6 
 Groom v. Thomas (2 Hag. Ec. 
 
 488) ii. 563 
 
 Grotgen v. Grotgen (3 Bradf. 
 
 378) i. 249, 279 
 
 Grove's Appeal (18 Smith, Pa. 
 
 143) ii. 498 
 
 (1 Wright, Pa. 443) i. 786, 794 a, 
 
 799, 805 
 Groves v. Nutt (13 La. An. 117) i. 406 
 Grubb V. Grubb (1 Harring. Del. 
 
 516) ii. 521 
 
 Section 
 Guardians of the Poor v. Nathans 
 
 (2 Brews. 149) i. 258 a, 436, 487, 494 
 Guembell v. Guembell (Wright, 
 
 226) ii. 198, 676 
 
 Guest V. Shipley (2 Hag. Con. 
 
 321) i. 116, 331 ; ii. 262, 582, 754, 765 
 Guidery v. Guidery (2 Mart. La. 
 
 132) ii. 501 
 
 Guild I). Guild (16 Vt. 512) ii. 344 
 
 Guilford v. Oxford (9 Conn. 821) i. 178, 
 828, 694 
 GuUett V. GuUett (25 Ind. 517) ii. 318 
 Gutzwiller v. Lackman (28 Misso. 
 
 168) i. 214 
 
 H. V. C. (1 Swab. & T. 605) i. 331 a, 
 885 ; u. 112, 582, 583, 596 
 H. V. H. (40 Barb. 9) ii. 317 
 
 Haokettstown Bank v. Mitchell 
 
 (4 Dutcher, 516) ii. 125 
 
 Hackney v. Hackney (9 Humph. 
 
 450) ■ ii. 237, 328 
 
 Hafernu. Davis (10 Wis. 501) ii. 315 
 Haffey v. Haffey (14 Ves. 261) ii. .506 
 Hagerty o. Harwell (16 Texas, 
 
 663) ii. 514 
 
 Haigh V. Haigh (Law Rep. 1 P. 
 
 & M. 709) ii. 463 
 
 Haines v. Jefcott (5 Mod. 168; 
 
 Comb. 356) i. 315 
 V. StautFer (1 Harris, Pa. 
 
 541) i. 83 
 
 Hair v. Hair (10 Rich. Eq. 163) i. 43, 
 790 ; ii. 358, 359 
 Hairston u. Hairston (27 Missis. 
 
 704) ii. 123, 125 
 
 , State w. (68 N.C. 451) i. 308a 
 
 Hake o. Fink (9 Watts; 336) ii. 715, 
 754, 760 
 Hakewell, In re (15 Eng. L. & 
 
 Eq. 599) ii. 529 
 , In re (22 Eng. L. & Eq. 
 
 395) ii. 529 
 
 Hale V. New Jersey Steam Navi- 
 gation Co. (15 Conn. 589) i. 402 
 Halford v. Halford (3 PhilUm. 
 
 98) ii. 253 
 V. Halford (Poynter Mar. 
 
 & Div. 200) ii. 26, 687 
 
 Hall V. Faust (9 Rich. Eq. 294) i. 582, 
 
 607 
 
 V. Hall (4 Allen, 39) ii. 92, 672 
 
 V. Hall (4 N. H. 462) ii. 38 
 
 V. Hall (3 Swab. & T. 847) ii. 230 
 
 V. Hall (25 Wis. 600) ii. 122 
 
 V. Hamlin (2 Watts, 354) ii. 753 e 
 
 V. Warren (9 Ves. 605) ii. 563 
 
 w. Weir (1 Allen, 261) i. 568 
 
 Hallett V. Collins (10 How. U. S. 
 
 174) i. 218, 279 
 
 Halstedu. Halsted (5Duer, 659) ii. 431 
 
 xxxvii 
 
EAR 
 
 INDEX TO THE CASES CITED. 
 
 HAB 
 
 Sbotion 
 Ham's Case (2 Fairf. 391) i. 497 
 
 Ham V. McClaws (1 Bay, 93) i. 670 
 
 V. Torrey (Selw. N. l'. 271) i. 573 
 
 Haraaker v. Hamaker (18 111. 
 
 137) i. 125, 137, 834; il. 293, 687 
 Hamerton v. Hamerton (1 Hag. 
 Ec. 23) ii. 424, 425 
 
 V. Hamerton (2 Hag. Eo. 8) ii. 17, 
 
 253, 262, 613, 641, 646 
 
 V. Hamerton (2 Hag. Ec. 
 
 618) ii. 256 
 
 — r- V. Hamerton (3 Hag. Ec. 1) ii. 625 
 Hamilton, Commonwealth v. (6 
 Mass. 273) ii. 527, 549 
 
 V. Hamilton (1 Bell Ap. Cas. 
 
 736; 9 CI. & E. 327) i. 240, 247, 252, 
 
 438 
 
 V. Lomax (26 Barb. 615) i. 143 ; 
 
 ii. 75 
 
 V. Wyllies (5 Scotch Sess. 
 
 Cas. new ed. 668) i. 107 
 
 Hamlin v. Bevans (7 Ohio, 1st pt. 
 
 161) ■ ii. 501 
 
 Hammick v. Bronson (5 Day, 
 
 290) i. 443 
 
 Hammond, Commonwealth v. (10 
 Pick. 274) ii. 549 
 
 V. Hammond (Clarke, 151) ii. 406, 
 
 445, 457, 461 
 Hampstead v. Plaistow (49 N. H. 
 
 84) i. 214 
 
 Hampton v. State (45 Ala. 82) i. 168 a 
 
 Hanberry v. Hanberry (29 Ala. 
 
 719) i. 786, 810; ii. 127, 128, 171, 250, 
 
 260, 679 
 
 Hancock's Appeal (14 Smith, Pa. 
 
 470) ' ii. 607 
 
 Hancock o. Hancock (5 N. H. 
 239) ii. 667 
 
 V. Merrick (10 Cush. 41) i. 571 ; 
 
 ii. 401, 528, 558 
 
 V. Peaty (Law Eep. 1 P. & 
 
 M. 335) i. 126, 128, 136 ; ii. 307 
 
 Hanks v. Hanks (3 Edw. Ch. 
 
 469) i. 24; ii. 30, 90, 235 
 
 Hanover v. Turner (14 Mass. 
 
 227) ii. 141, 144, 161, 163 a 
 
 Hanriek v. Andrews (9 Port. 9) i. 424 
 Hansel v. Hansel (Wright, 212) 
 
 ii. 198, 250 
 Hansen, In re (1 Edm. Sel. Cas. 
 
 9) ii. 549 
 
 Hansford v. Hansford (10 Ala. 
 
 561) ii. 530, 531, 532 
 
 Hansley v. Hansley (10 Ire. 506) i. 719, 
 
 825 ; ii. 242, 245 
 
 Hantz V. Sealy (6 Binn. 405) i. 105, 
 
 248, 279, 437 
 
 Harborne, Hex v. (2 Ad. & E. 
 
 540) i. 452, 453 
 
 Hardenbergh v. Hardenbergh (14 
 Cal. 654) i. 777, 789 
 
 xxxviii 
 
 V. 
 
 211) 
 
 Harlow 
 
 189) 
 
 SECTION 
 
 Hardin v. Hardin (17 Ala. 250) i. 799 
 
 Harding v. Alden 9 G^enl. W^l'i^^ 
 
 ii 128 134 141, 157, 159, 160, Ibl, 
 
 "63 Sm mi 173', 709, 711, 754. 
 
 V. Brooks (5 Pick. 244) . ii. 644 
 
 V. Harding (22 Md. 337 i. 794 o 
 
 Hare v. Hare (10 Texas 355) ii. 126 
 128, 144, 172, 176, 605, 651, 666, 682 
 Harford v'. Morris (2 Hag. Con. 
 423) i. 150, 166, 195, 211, 356, 361, 
 ' 373 ; ii. 294 
 
 Hargrave v. Hargrave (9 Beav. 
 • 552) i. 447, 448 
 
 Hargroves d. Meray (2 Hill Ch. 
 222) . i- 654 
 
 Thompson (31 Missis. 
 
 i. 279, 283, 293 
 V. Humiston (6 Cow. 
 
 ii-75 
 Harman v. Harman (1 Cal. 215) 
 
 i. 279; ii. 198 
 
 V. Harman (16 111. 85) i. 442, 
 
 718, 813 ; ii. 262, 264, 268 
 Harmar v. Harmar (Deane & 
 
 Swabey, 282) ii. 431 
 
 Harper v. Harper (29 Misso. 301) 
 
 i. 764, 768; ii. 38, 40, 88 
 
 V. Harper (Wright, 283) ii. 645 
 
 Harratt v. Harratt (7 N. H. 196) 
 
 i. 717, 719, 730 
 Harrington v. Harrington (10 Vt. 
 
 505) ' ii. 397 
 
 Harris v. Ball (2 Hag. Con. 327) i. 331 
 
 V. Ball (3 Phillim. 147) ii. 582 
 
 V. Davis (1 Ala. 259) ii. 391, 399 
 
 V. Harris (1 Hag. Ec. 351) 
 
 ii. 425, 448, 449, 457, 459, 460 
 
 V. Harris (2 Hag. Ec. 376) 
 
 ii. 5, 7, 17, 80, 242, 248, 619, 620, 
 629, 681, 642, 646 
 
 V. Harris (Law Rep. 2 P. & 
 
 M. 77) ii. 282a, 284a 
 
 V. Harris (2 Phillim. Ill) 
 
 i. 717, 719, 722, 729, 730 
 
 V. Harris (4 Swab. & T. 
 
 232) 
 
 V. Hicks (2 Salk. 548) 
 
 V. Lee (1 P. Wms. 
 
 ii. 28 a 
 i. Ill 
 482) 
 
 i. 554, 621 
 i. 568, 
 
 V. Morris (4 Esp.41) 
 
 572, 577, 806 
 
 , State V. (63 N. C. 1) i. 163 a 
 
 Harrison v. Almond (4 Dowl. P. 
 C. 321) i. 593 
 
 V. Burwell (2 Vent. 9; 
 
 Vaugh. 206) i. 106, 109, 316, 377 
 
 V. Harrison (19 Ala. 499) 
 
 ii. 126, 128, 141, 161, 198, 314, 
 682, 753 d, 762, 764 
 
 V. Harrison (20 Ala. 629) 
 
 ii. 58, 127, 144, 202 
 
HAT 
 
 INDEX TO THE CASES CITED. 
 
 HER 
 
 Section 
 Harrison v. Harrison (4 B. F. 
 Moore, 96) ii. 243, 245 
 
 V. Harrison (7 Ire. 438) 
 
 ii. 266, 651 
 
 V. Harrison (1 Philad. 389) i. 120 
 
 V. Harrison (3 Swab. & T. 
 
 362) ii. 105 a, 683 
 V. Southampton (17 Eng. L. 
 
 & Eq. 864 ; 21 Eng. L. & Eq. 
 
 343) i. 294; ii. 756, 760 
 V. Sparrow (1 Curt. Eo. 1 ; 
 
 4 E. E. Moore, 96) ii. 696, 600 
 
 Harrod v. Harrod (1 Kay & 
 
 Johns. 4) i. 128, 133, 136, 222 
 
 Harry v. Graham (1 Dev. & Bat. 
 
 76) i. 173 
 
 Harshaw v. Merry man (18 Misso. 
 
 106) i. 560, 619, 620 
 
 Hart V. Hart (2 Edw. Ch. 207) 
 
 ii. 628, 646 
 V. Hart (11 Ind. 384) ii. 421 
 
 V. Hart (2 Spinks, 193) 
 
 ii. 56, 284 a 
 Harteau v. Harteau ( 14 Pick. 181 ) 
 
 i. 817; ii. 113, 128, 171,173, 
 
 198, 682 
 
 Harter v. Harter (6 Ohio, 318) ii. 311 
 
 Harvey v. IngUs (19 Feb. 1839) i. 202 
 
 Harvie v. Inglis (15 Scotch Sess. 
 
 Cas. 964) i. 265 
 
 Harwood v. Heffer (3 Taunt. 420) 
 
 i. 570, 722 
 Hassall, Bex v. (2 Car. & P. 343) i. 642 
 Hastings v. Orde (11 Sim. 206) ii. 717 
 Hasty, State v. (42 Maine, 287) i. 469 
 Haswell v. Haswell (1 Swab. & 
 
 T. 502) ii. 82, 334 
 
 Hatchett v. Baddeley (2 W. Bl. 
 
 1079) i. 592 ; ii. 690 
 
 Hatfield v. Hatfield (stated 20 
 
 Howell St. Tr. 395) ii. 754 
 
 Hathaway v. Clark (5 Pick. 490) i. 516 
 Hatwell V. Jackson (7 Texas, 
 
 576) i. 301 
 
 Haven v. Foster (9 Pick. 112) i. 409 
 Haviland v. Halstead (34 N. Y. 
 
 643) i. 306 
 
 Hawes, Reg. v. (1 Den. C. C. 
 
 270) ■ i. 479 
 
 V. Hawes (33 111. 286) ii. 603, 605 
 
 Hawke v. Corri (2 Hag. Con. 
 
 280) i. 495; ii. 290, 759 
 
 Hawkes v. Hawkes (1 Hag. Eo. 
 
 526) ii. 446, 457, 459, 460 
 
 Hawson v. Hancock (8 T. R. 
 
 575) ii. 76 
 
 Hayes v. People (25 N. Y. 390) i. 279 
 
 V. Watts (2 Phillim. 43) i. 294 
 
 Hays V. Sanderson (7 Bush, 489) 
 
 ii. 712 
 Hay ward v. Hay ward (1 Swab. 
 
 & T. 81) i. 771 
 
 Seotion 
 Hayward v. Hayward (1 Swab. 
 
 & T. 333) ii. 235, 460 
 
 Hazen v. Hazen (19 Vt. 603) ii. 397 
 
 Head v. Head (3 Atk. 295) i. 719 ; 
 
 ii. 352, 353, 385, 605 
 
 V. Head (3 Atk. 547) ii. 351, 361 
 
 V. Head (2 Kelly, 191) i. 23, 
 
 42, 71, 76, 664 
 V. Head (Turn. & Russ. 138 ; 
 
 1 Sim. & S. 160) i. 447, 448 
 
 V. Ward (1 J. J. Mar. 280) i. 99 
 
 Headen v. Headen (15 La. 61) 
 
 i. 719, 768 
 Heathcote's Divorce Bill (1 Macq. 
 
 Scotch Ap. Cas. 277) ii. 610 
 
 Heaviside's Divorce Bill (12 CI. 
 
 & F. 333) ii. 109 
 
 Heaviside v. Lardner (3 Law Re- 
 porter, 201) ii. 717 
 Heberd v. Myers (5 Ind. 94) i. 415 
 Hedden v. Hedden (6 C. E. Green, 
 
 61) i. 179; ii. 10,635 
 
 Hedrick v. Hedrick (28 Ind. 291) 
 
 ii. 379 
 Heermance o. James (47 Barb. 
 
 120) i. 782 
 
 Heffer v. Heffer (3 M. & S. 265) i. 204 
 Heffner v. Heffner (11 Harris, Pa. 
 
 104) i. 299, 300 
 Helden v. Helden (7 Wis. 296) ii. 533 
 V. Helden (9 Wis. 557 ; 11 
 
 Wis. 554) ii. 421 
 
 Helffenstein v. Thomas (5 Rawle, 
 
 209) i. 283, 284 
 
 Helms V. Franciscus (2 Bland, 
 
 544) i. 646, 722 ; ii. 262, 291, 
 
 355, 359 
 Hemmenway v. Towner (1 Allen, 
 
 209) i. 186 
 
 Hemming v. Price (12 Mod. 432) i. 105 
 Hemmings v. Smith (4 Doug. 33) 
 
 i. 442, 479, 491, 498 
 Hemphill v. Bank of Alabama, 
 
 (6Sm. &M. 44) i. 412,413 
 
 Hempstead u. Reed (6 Conn. 
 
 480) i. 418 
 
 Henderson v. Cargill (31 Missis. 
 
 367) i. 442, 540 
 V. Crouse (7 Jones N. C. 
 
 623) ii. 659 
 
 V. Stringer (2 Dana, 291) i. 577 
 
 Hendricks v. Mount (2 Southard, 
 
 738) i. 173 
 
 Henry v. Henry (3 Rob. N. Y. 
 
 614) ii. 317 
 
 V. Sargeant (13 N. H. 321) i. 402 
 
 Henthorn v. Shepherd (1 Blackf. 
 
 157) i. 424 
 
 Hep worth v. Hepworth (2 Swab. 
 
 & T. 414) ii. 417, 498 
 
 Herbert v. Herbert (2 Hag. Con. 
 
 263) 11. 302 
 
 xxxix 
 
HIN 
 
 INDEX TO THE CASES CITED. 
 
 HOL 
 
 Section 
 Herbert v. Herbert (2 Hag. Con. 
 
 271 ; 3 Phillim. 58) i. 287, 385, 633 
 Herman v. McLeland (16 La. 26) 
 
 ii. 245 
 , State V. (13 Ire. 502) i. 187 
 
 V. Herron (16 Ind. 129) 
 
 ii. 238, 255 
 Herring v. Goodson (43 Missis. 
 
 392) i. 448 
 
 Hervey v. Hervey (2 W. Bl. 877) 
 
 i. 437, 439, 489 ; ii. 269 
 Hesler v. Hesler (Wright, 210) 
 
 i. 810; ii. 198, 346, 354,675 
 Hester v. Hester (4 Dev. 228) ii. 723 
 Hevice, Respublica u. (3 Wheeler 
 
 Crim. Cas. 505) i. 166, 215, 219 
 
 Hewitt, Ex parte (11 Rich. 326) 
 
 ii. 546 
 
 V. Hewitt (1 Bland, 101) 
 
 ii. 355, 360, 361, 499, 500 
 Hews V. Hews (7 Gray, 279) i. 802 
 Hevde v. Heyde (4 Sandf. 692) 
 
 ii. 604 
 Heyer u. Burger (Hoffman, 1) i. 650 
 Heyob v. Her Husband (18 La. 
 
 An. 41) ii. 356 
 
 Heyward v. Cuthbert (4 Des. 
 
 445) ii. 527 
 
 Hickey v. Stewart (3 How. U. S. 
 
 750) ii. 133 
 
 Hickman v. Barnes (1 Misso. 
 
 156) ii. 744 
 
 Hicks V. Cochran (4 Edw. Ch. 
 
 107) i. 229, 508 
 
 Higgins V. Breen (9 Misso. 497) 
 
 i. 105, 301 ; ii. 696 
 Higgs V. Hlggs (3 Hag. Ec. 472) 
 
 ii. 447, 449, 452, 494 
 High, Appellant (2 Doug. Mich. 
 515) i. 413 
 
 V. Worley (33 Ala. 196) i. 582 
 
 HUl V. Burger (3 Bradf. 432) i. 513 
 
 w. Bush (18 Ark. 522) i. 209 
 
 V. Good ( Vaughan, 302) i. 316 
 
 V. Grigsby (32 Cal. 55) i. 411 
 
 V. Hill (10 Ala. 527) ii. 319, 651 
 
 V. Hill (8 Casey, 511) i. 471, 473, 
 
 497 
 
 V. Hill (2 Mass. 150) i. 729 ; 
 
 ii. 262 
 
 V. Hill (2 Swab. & T. 407) 
 
 ii. 258 
 
 V. Sewald (3 Smith, Pa. 
 
 271) i. 616 
 
 Hills V. Hills (6 Law Reporter, 
 174) i. 786, 806 
 
 Hillsboro' v. Deering (4 N. H. 
 86) ii. 528 
 
 Hilly ard v, Grantham (cited 2 
 Ves. sen. 246) ii. 754 
 
 Hilton, State v. (3 Rich. 434) i. 497 
 
 Hind, Rex v. (Russ. & Ry. 253) i. 292 
 
 Seotiok 
 Hlndley v. Westmeath (6 B- & C. 
 
 200) i- 637 
 
 Hindmarsh v. Hlndmarsh (Law 
 
 Rep. 1 P. & M. 24) ii. 641a 
 
 Hinds V. Hinds (1 Iowa, 36) u. 128, 
 
 211 
 Hinkley v. Marean (3 Mason, 
 
 88) i- 402 
 
 Hinks V. Harris (Carth. 271 ; 2 
 
 Salk. 548) i- 109, 320 
 
 Hlnson v. Wall (20 Ala. 298) i. 413 
 Hiram v. Pierce (45 Maine, 367) 
 
 i. 117, 295, 299, 301 
 Hitchcox V. Hltchcox (2 W. Va. 
 
 435) ii- 268 
 
 Hite V. Lenhart (7 Misso. 22) i. 409 
 Hitner's Appeal (4 Smith, Pa. 
 
 110) i. 653 
 
 Hoar V. Hoar (3 Hag. Ec. 137) 
 
 11. 6, 7, 17, 21 
 Hobart v. Hilliard (11 Pick. 143) 
 
 ii. 311 
 
 V. Lemon (3 Rich. 131) i. 584 
 
 Hobbs V. Hull (1 Cox, 445) ii. 352 
 Hobdy V. Jones (2 La. An. 944) i. 443 
 Hodges V. Hodges (1 Esp. 441) i. 791 
 
 V. Hodges (3 Hag. Ec. 118) ii. 11 
 
 V. Windham (Peake, 39) ii. 11 
 
 Hodgkinson v. Fletcher (4 Camp. 
 
 70) ii. 401 
 
 V. Wilkie (1 Hag. Con. 
 
 262) i. 294 
 
 Hodgskins, State v. (19 Maine, 
 155) i. 279, 442, 496 
 
 Hodnett, Rex w. (1 T. R. 96) i. 293 
 
 Hoes V. Van Alstyne (20111. 201) 
 
 1. 426, 427, 428 
 
 Hoflfman v. Hoffman (6 Casey, 
 417) i. 191 ; 11. 260, 571, 751 
 
 V. Hoffman (43 Misso. 547) ii. 95 
 
 V. Hoffman (46 N. Y. 30) 
 
 il. 144, 163 a, 214, 763 
 Hoffmire v. Hoffmire (3 Edw. 
 
 Ch. 173) ii. 57, 338 
 
 Hofmire v, Hofmire (7 Paige, 60) 
 
 ii. 43, 57, 260, 338 
 Hogard, State v. (12 Minn. 293) 
 
 ii. 638 
 Hoggan V. Cragie (Maclean & 
 
 Rob, 942) i. 250, 261, 265 
 
 Hoitt V. Holcomb (3 Post. N. H. 
 
 535) ii. 753 
 
 Holbrook v. Comstock (16 Gray, 
 
 109) i. 646 o 
 
 Holden w. Holden (1 Hag. Con. 
 453) i. 717, 729, 730, 734, 744, 768 
 
 V. James (11 Mass. 396) i. 675 
 
 Holgate V. Cheney (Brayton, 158) 
 
 i. 285, 343 
 Holland v. Cruft (20 Pick. 321) i. 70 
 
 V. Holland (2 Mass. 154) 
 
 ii. 241, 242 
 
HOR 
 
 INDEX TO THE CASES CITED. 
 
 HUL 
 
 Seotiok 
 Hollerman v. HoUerman (1 Barb. 
 
 64) ii. 409 
 
 HoUister v. HoUister (6 Barr, 449) 
 
 i. 730 ; ii. 28, 51, 17,<? 
 
 V. Loud (2 Mich. 309) ii. 672 
 
 HoUoman v. Holloman (2 Dev. & 
 
 Bat. Eq. 270) ii. 255, 260 
 
 Holman v. King (7 Met. 884) i. 418, 
 
 427 
 Holmes v. Greene (7 Gray, 299) ii. 123 
 
 V. Holmes (8 Abb. Pr. N. s. 
 
 1) ii. 163o 
 
 V. Holmes (1 Abb. U. S. 
 
 525) i. 255, 392 
 
 V. Holmes (4 Barb. 295) i. 14, 15, 
 
 675, 678, 679, 686, 693 ; ii. 170, 375, 
 376, 429, 714, 733 
 
 V. Holmes (6 La. 463) i. 5, 279, 
 
 283, 284, 437 ; ii. 272 
 
 V. Holmes (2 Lee, 90) ii. 387, 394 
 
 V. Holmes (2 Lee, 116) i. 804 
 
 V. Holmes (Walk. Missis. 
 
 274) i. 751 ; ii. 80, 512 
 
 V. Mallett (1 Morris, 82) i. 412, 
 
 413 
 Holston V. Holston (23 Ala. 777) 
 
 i. 784; ii. 88, 347, 606 
 
 Holt V. Brien (4 B. & Aid. 252) i. 553, 
 
 560, 617 
 
 V. Glarencieux (2 Stra. 937) 
 
 i. 112 
 
 V. Ward (2 Stra. 937) i. 143 
 
 Homston v. Homston (3 Mass. 
 
 159) u. 314 
 
 Honyman v. Campbell (8 Scotch 
 Sess. Cas. 1039; 6 Wilson & 
 Shaw, 92) i. 247, 265 
 
 Hood V. Hood (11 Allen, 196) ii. 163 a 
 Hooke V. Hooke (4 Swab. & T. 
 236 ; 28 Law J. N. B. P. & M. 
 29) ii. 641 
 
 Hooper v. Hooper (19 Misso. 355) 
 
 i. 821, 826 
 
 V. Hooper (1 Swab. & T. 
 
 602) ii. 235 
 
 , State ». (5 Ire. 201) i. 308 
 
 Hoover v. Brem (43 Missis. 603) 
 
 i. 163 b 
 
 V. Heim (7 Watts, 62) ii. 528 
 
 Hope V. Hope (1 Swab. & T. 94) 
 
 i. 55, 58, 771, 807 ; ii. 76, 82, 87 
 Hopkins v. Hopkins (3 Mass. 158) 
 
 ii. 173, 255 
 
 V. Hopkins (35 N. H. 474) 
 
 ii. 127, 212, 682 
 
 , Eex V. (7 East, 579) ii. 550 
 
 Hopper V. Hopper (11 Paige, 46) 
 
 ii. 341 
 Hopson V. Boyd (6 B. Monr. 296) 
 
 ii. 568 
 Home V. Home (2 Swab. & T. 
 48) ii. 628 
 
 Section 
 Homer v. Liddiard (1 Hag. Con. 
 
 337) i. 293, 315 
 
 Hotchkish's Case (1 Root, 355) 
 
 ii. 311 
 Houliston V. Smyth (3 Bing. 127 ; 
 
 2 Car. & P. 22 ; 10 J. B. Moore, 
 
 482) i. 570, 730, 791 ; ii. 621 
 
 Houlston V. Houlstou (23 Ala. 
 
 777) i. 825 
 
 Houpt V. Houpt (Wright, 156; 
 
 5 Ohio, 539) i. 446; ii. 269 
 
 House V. House (25 Ga. 473) ii. 144 
 Houston V. Houston (4 Ind. 139) 
 
 ii. 514 
 
 V. Moore (5 Wheat. 1) ii. 701 
 
 Hovey v. Hobson (55 Maine, 
 
 256) i. 128 
 
 , People V. (5 Barb. 117) ii. 700 
 
 Howard v. Bartlet (Hob. 181) i. 112, 
 
 316 
 
 V. Howard (6 Jones N. C. 
 
 235) i 156, 157, 160, 161 
 
 V. Howard (15 Mass. 196) 
 
 ii. 498, 737 
 
 V. Whetstone (10 Ohio, 365) 
 
 i. 566, 570, 623 
 Howden v. Rogers (1 Ves. & B. 
 
 129) ii. 505 
 
 Howe V. Howe (4 Nev. 469) ii. 511 
 Howes, Reg. v. (30 Law J. n. s. 
 
 M. C. 47 ; 3 Ellis & E. 332) ii. 537 
 Howey v. Goings (13 111. 95) ii. 712 
 Howland, United States v. (4 
 
 Wheat. 108) i. 70 
 
 Hubbard v. Lees (Law Eep. 1 
 
 Ex.255) i. 473 a 
 
 Hubbell V. Hubbell (3 Wis. 662) 
 
 ii. 161, 176 
 
 V. Inkstein (7 La. An. 252) i. 302 
 
 Hudson V. Hudson (3 Swab. & T. 
 
 314) i. 734; ii. 282 a 
 
 V. Robinson (4 M. & S. 
 
 475) ii. 640 
 
 Huet V. Le Messurier (1 Cox, 
 
 275) i. 478 
 
 Hugh V. Higgs (8 Wheat. 697) ii. 499 
 Hughes V. Chadwick (6 Ala. 651) 
 
 i 555 
 
 V. Hughes (19 Ala. 307 ) i.' 722, 
 
 730, 734; ii. 58,282,651 
 
 V. Hughes (44 Ala. 
 
 i. 717 ; 
 ii. 367 
 
 i. 84 
 
 V. Jackson (12 Md. 450) 
 
 V. Turner (4 Hag. Ec. 30) ii. 309 
 
 Hulings V. Hulings (2 West. Law 
 
 Jour. 131) i. 191 ; ii. 291 
 
 Hull V. Hull (15 Jur. 710 ; 5 Eng. 
 
 L. & Eq. 589) i. 166, 196 
 
 V. HuU (2 Strob. Eq. 174) 
 
 i. 42, 669, 678, 686 ; ii. 126, 
 
 161, 163 a, 198, 754 
 
 V. Rawls (27 Missis. 471) i. 454 
 
 xli 
 
HTD 
 
 INDEX TO THE CASES CITED. 
 
 JAC 
 
 Section 
 Hulme V. Hulme (2 Add. Ec. 27) 
 
 i. 729, 730 
 Hulse V. Hulse (Law Rep. 2 P. & 
 M. 259) ii. 82, 743 
 
 V. Hulse (Law Rep. 2 P. & 
 
 M. 357; 2 Eng. Rep. 149) 
 
 ii. 641 a 
 Humphrey v. BuUen (1 Atk. 458) 
 
 ii. 739 
 
 V. Humphrey (7 Com. 116) 
 
 ii. 283, 644 
 
 , People V. (7 Johns. 814) 
 
 i. 442, 499 
 Humphreys, People v. (24 Barb. 
 
 521) ii. 543, 548 
 
 Hunt, Ex parte (5 Cow. 284) i. 314 
 
 w. Bell (1 Bing. 1) ii. 75 
 
 V. Blaquiere (3 Moore & P. 
 
 108, 5 Bing. 550) i. 570 ; ii. 401 
 V. Booth (Freeman, Missis. 
 
 215) ii. 302 
 , Commonwealth v. (4 Cush. 
 
 49) i. 355, 369, 554, 570; ii. 702 
 V. Hunt (Deane v. Swabey, 
 
 121) ii. 620, 627 
 V. Hunt (31 Law J. n. s. Ch. 
 
 161 ; De G., F. & J. 221) i. 634 a 
 
 V. Peake (5 Cow. 475) i. 143 
 
 V. Thompson (3 Seam. 179) 
 
 ii. 628 
 
 V. Yeatman (3 Ohio, 16) ii. 260 
 
 Hunter v. Boucher (3 Pick. 289) 
 
 i. 573, 620 
 
 V. Fulcher (5 Rand. 126) 
 
 i. 424, 425 
 
 V. Whitworth (9 Ala. 965) 
 
 i. 548 
 Huntly V. Compstock (2 Root, 
 
 99) i. 467, 651 
 
 Hurlburt v. Hurlburt (14 Vt. 
 
 561) i. 817 
 
 Hutohins v. Commonwealth (2 
 
 Va. Cas. 331 ) 1. 319 
 
 V. Dixon (11 Md. 29) i. 646 
 
 Hutchinson v. Tindall (2 Green 
 
 Ch. 357) . i. 131 
 
 Hutchison v. Hutchison (1 Eras. 
 
 Dom. Rel. 667) U. 45 
 
 Hutson V, Townsend (GRich. Eq. 
 
 249) ii. 549 
 
 Button V. Hutton (3 Barr, 100) i. 653 
 
 V. Mansell ( Holt, 458) i. 247 
 
 Hyam v. Edwards (1 Dall. 1) i. 478 
 Hyatt's Case (Cro. Jae. 364) ii. 353 
 Hyatt V. Wood (4 Johns. 150) ii. 75 
 Hyde v. Hyde (3 Bradf. 509) i. 506, 
 508, 510 
 
 V. Hyde (29 Law J. n. s. 
 
 Mat. 150) ii. 464, 466 
 
 V. Hyde (Law Rep. 1 P. & 
 
 M. 130) i. 225 a 
 V. Price (3 Ves. 437) ii. 437 
 
 xlii 
 
 Section 
 Ilderton v. Ilderton (2 H. Bl. 145) 
 
 i. 361 
 
 Imhoff V. Brown (6 Casey, 504) 
 
 i. 586, 606 
 
 V. "Witmer (7 Casey, 243) ii. 569 
 
 Independence v. Pompton (4 
 
 Halst.209) i-540 
 
 IngersoU v. IngersoU (13 Wright, 
 
 Pa. 249) i- '^83 
 
 Inglis V. Robertson (1 Eras. Dom. 
 
 Rel. 157) i- 231 
 
 Ingraham v. Hart (11 Ohio, 255) 
 
 i. 418 
 Ingram «. Belk (2 Rich. Ill) 
 
 ^ ii. 753 a 
 
 Innel v. Newman (4 B. & Aid. 
 
 419) i- 593 
 
 Inskeen «. Inskeep (5 Iowa, 204) 
 
 i 832; ii. 467, 613, 614, 619, 620 
 Irby c. Wilson (1 Dev. & Bat. 
 
 Ea. 568) ii. 126, 128, 134, 157, 
 
 159, 163 a 
 Irving V. Greenwood (1 Car. & P. 
 
 350) i- 170 
 
 Irwin V. Dowling (Milward, 629) 
 
 ii. 457, 460 
 Isaacs V. Boyd (5 Port. 388) ii. 527 
 
 Jackson v. Boneham (15 Johns. 
 
 226) i. 476, 540 
 
 V. Browner (18 Johns. 37) i. 540 
 
 V. Bulloch (12 Conn. 38) i. 154 
 
 V. Claw (18 Johns. 346) i. 446, 
 
 453, 508, 513 
 
 V. Combs (7 Cow. 36) ii. 527 
 
 V. Cooley (8 Johns. 128) i. 540 
 
 V. Hawkey (Jacob, 264) ii. 529 
 
 V. Jackson (8 Grant, IJ. C. 
 
 Ch. 499) i. 765; ii. 660 
 
 V. Jackson (1 Johns. 424) 
 
 ii. 128, 141, 144, 161, 760, 763 
 u. King (5 Cow. 237) i. 463 
 
 B. People (2 Scam. 231) 
 
 i. 463, 464, 483 
 
 , State V. (2 Dev. 563) i. 418, 424 
 
 V. Stewart (20 Ga. 120) ii. 514, 
 
 517 
 
 V. Sublett (10 B. Monr. 467) 
 
 i. 675, 693 
 
 V. Winne (7 Wend. 47) i. 212, 
 
 228 
 Jacobs V. Featherstone (6 Watts 
 & S. 346) i. 585, 606 
 
 , Rex V. (1 Moody, 140) i. 114, 
 
 116 
 
 V. Whitcomb (10 Cush. 255) 
 
 i. 624, 626 ; ii. 661 
 Jacocks V. Gilliam (3 Murph. 47) 
 
 i. 463 
 Jacquins v. Commonwealth (9 
 Cush. 279) i. 101 
 
JEN 
 
 INDEX TO THE CASES CITED. 
 
 JOH 
 
 Section 
 Jagger, Rex w. (1 East P. C. 455) 
 
 ii. 659 
 James v. Catherwood (3 D. & R. 
 
 190) i. 535 
 V. Commonwealth (12 S. & 
 
 R. 220) i. 754 
 
 V. Langdon (7 B. Monr. 193) 
 
 i. 194 
 , Reg. V. (2 Den. C. C. 1; 
 
 Temp. & M. 300 ; 4 Cox C. C. 
 
 217 ; 3 Car. & K. 167 ; 14 Jur. 
 
 940; 19 Law J. N. s. M. C. 
 
 179 ; 1 Eng. L. & Eq. 552) i. 347 
 , Rex V. (Euss. & Ry. 17) 
 
 1. 294, 
 
 451 
 
 i. 213 
 
 i. 595 
 
 V. Smith (Reported) 
 
 V. Stewart (9 Ala. 855) 
 
 Jamison v. Jamison (4 Md. Ch. 
 
 289) 1. 685 ; ii. 355, 358, 438 
 
 Jaques o. Public Administrator 
 
 (1 Brad. 499) i. 105, 136 
 
 Jarvis v. Jarvis (3 Edw. Ch. 462) 
 
 1.99,698; ii. 176, 344 
 Jeans v. Jeans (2 Harring. Del. 
 
 38) i 71 ; ii. 334, 337, 348, 552 
 
 V. Jeans (2 Harring. Del. 
 
 142) Ii. 457, 512, 519, 532, 552 
 
 V. Jeans (3 Harring. Del. 
 
 136) ii. 260, 751 
 
 Jee V. Thurlow (4 D. & R. 11 ; 2 
 
 B. & C. 547) 1. 637 ; ii. 377, 717, 
 
 741 
 
 Jelineau v. Jelineau (2 Des. 45) i. 42, 
 
 719, 722, 726, 730; ii. 302, 356, 358, 
 
 361, 386 
 
 Jenkins v. Bishee (1 Edw. Ch. 
 
 377) i. 443, 538 
 
 V. Davies (10 Q. B. 314) i. 469 
 
 V. Jenkins (2 Dana, 102) i. 5, 
 
 121, 136 
 
 V. Tucker (1 H. Bl. 90) i. 565 
 
 Jenks, People v. (24 Cal. 11) i. 83 
 
 Jenkyn v. Jenkyn (Deane & ' 
 
 Swabey, 268) ii. 637 
 
 Jenne v. Jenne (7 Mass. 94) ii. 315 
 Jenner v. Morris (3 DeG., F. & J. 
 
 45; 1 Drew & S. 218; 7 Jur. 
 
 N. s. 375) i. 621, 622 
 
 Jenners v. Howard (6 Blackf. 
 
 240) i. 131 
 
 Jenness v. Jenness (24 Ind. 355) 
 
 ii. 166, 318 
 Jennings v. Jennings (2 Beasley, 
 
 38) i. 783;ii. 671 
 V. Jennings (Law Rep. 1 P. 
 
 &M. 3.5) ii. 282 a 
 V. Jennings (16 Vt. 607) i. 817 
 
 V. Montague (2 Grat. 350) 
 
 ii. 520 
 Jennison o. Graves (2 Blackf. 
 
 441) ii. 528 
 V. Hapgood (10 Pick. 77) ii. 123 
 
 Section 
 Jesson V. Collins (Holt, 457; 2 
 
 Salk. 437) 1. 256 
 
 Jessop V. Jessop (2 Swab. & T. 
 
 301) ii. 28, 28 a, 32 
 
 Jeter«. Jeter (36 Ala. 391) ii. 620 
 Jewell V. Jewell (1 How. U. S. 
 
 219) i. 224, 238, 254, 279 
 
 J. F. C. V. M. E. his wife (6 Rob. 
 
 La. 135) ii. 72, 96, 534 
 
 J. N. B., State v. (1 Tyler, 86) ii. 723 
 Joffrion v Bordelou (14 La. An. 
 
 618) i. 599 
 Johns V. Johns (29 Ga. 718) ii. 47, 
 80, 249, 663 
 , United States v. (1 Wash. / 
 
 C. C. 361) 1. 424 
 
 Johnson's Appeal (9 Barr, 416) 
 
 ii. 753 5 
 Johnson v. Chadwell (8 Humph. 
 
 145) i. 193 
 V. Chambers (12 Ind. 102) i. 413 
 
 V. Coleman (23 Wis. 452) 
 
 ii. 753 a, 753 e 
 , Commonwealth v. (10 Al- 
 len, 196) i. 544 
 
 V. Johnson (14 Cal. 459) i. 764 
 
 V. Johnson 1 Cold. 626) i. 253 o, 
 
 300, 537 
 
 V. Johnson (1 Edw. Ch. 439 ; 
 
 4 Paige, 460 ; 14 Wend. 637) i. 71, 
 
 74; ii. 33, 38, 56, 57, 121, 333, 334, 
 
 335, 338, 340, 341. 610, 632, 646 
 
 V. Johnson (4 Harring. Del. 
 
 171) i. 582 
 
 V. Johnson (6 Johns. Ch. 
 
 163) ii. 327 
 
 V Johnson (30 Misso. 72) i. 223 
 
 V. Johnson 45 Misso. 595) i. 156, 
 
 163 a 
 
 V. Johnson (Walk. Mich. 
 
 309) i 823 ; ii. 691, 751 
 
 V. Johnson (4 Wis. 135) i. 718, 
 
 821 ; ii. 278, 307, 329, 568 
 
 V. Kincade (2 Ire. Eq. 470) i. 136, 
 
 138; ii. 293 
 
 V. Medlicott (3 P. Wms. 130) 
 
 i. 131 
 
 V. Sherwin (3 Gray, 374) i. 624, 
 
 626 ; ii. 661 
 
 V. Terry (34 Conn. 259) ii. 546 
 
 V. Williams (3 Greene, Iowa, 
 
 97) ii. 391 
 
 Johnston v. Allen (39 How. Pr. 
 506) i. 537 
 
 V. Brown (2 Scotch Sess. 
 
 Cas. new ed. 437) i. 132 
 
 V. Ferrier (cited 1 Fras. 
 
 Dom. Eel. 43) i. 146 
 
 V. Johnston (Wright, 454) 
 
 ii. 354, 620, 678 
 
 V. Kirkwood (4 Dru. & W. 
 
 379) i. 592 
 
 xliii 
 
EAN 
 
 INDEX TO THE CASES CITED. 
 
 KEN 
 
 Section 
 Johnston v. Parker (3 Phillim. 
 39) i. 294 
 
 V. Sumner (3 H. & N. 261) 
 
 i. 553, 556, 568, 578, 580, 620 
 Jolliff B. JoUiff (32 111. 527) ii. 445 
 
 JoUy V. Jolly (1 Iowa, 9) ii. 516 
 
 a. McGregor (8 Wilson & 
 
 Shaw, 85) i. 166 
 
 , State V. (3 Dev. &, Bat. 110) 
 
 ii. 723 
 Jones V. jEtna Insurance Co. (14 
 Conn. 501) i. 404 
 
 I!. Bow (Carth. 225) ii. 754 
 
 V. Hunter (2 La. An. 254) i. 488 
 
 V. Jones (18 Ala. 145) i. 783, 
 
 810; ii. 678 
 
 V. Jones (2 Barb. Ch. 146) 
 
 Ii. 384, 406, 409 
 
 V. Jones (3 C. E. Green, 33) 
 
 ii. 97, 99, 341 
 
 V. Jones (18 Maine, 308) i. 473 ; 
 
 ii. 262, 303, 345, 376, 396 
 
 V. Jones (16 Smith, Pa. 494) 
 
 i. 761 
 
 V. Jones (i Tenn. 2) i. 698, 
 
 699 ; ii. 199 
 
 V. Jones (1 TJ. S. Mo. Law 
 
 Mag. 800 ; 7 Legal Intelligen- 
 cer, 19 ; 2 Jones, Pa. 350) i. 686, 
 687, 690, 691 
 
 V. Jones (Wright, 155) i. 738, 
 
 768 ; U. 354 
 
 V. Jones (Wright, 244) i. 750 
 
 V. Laney (2 Texas, 342) i. 414 
 
 V. Maffet (5 S. & E. 523) i. 426 
 
 V. Perry (10 Yerg. 59) i. 682 
 
 , Reg. V. (9 Car. & P. 258) i. 791 
 
 V. Robinson (2 Pliillim. 
 
 285) i. 294 
 
 V. State (5 Blackf. 141) i. 299 
 
 V. Tevis (4 Litt. 25) i. 293 ; 
 
 ii. 527, 528 
 Jordan v. Jordan (17 Ala. 466) ii. 250 
 Joyce V. Joyce (5 Cal. 161) ii. 572 
 
 Joyner v. Joyner (6 Jones, Eq. 
 
 322) i. 754 
 
 Judge Seventh District Court, 
 
 State V. (22 La. An. 264) ii. 387 
 Judson V. Lathrop (1 La. An. 
 
 78) ii. 119 
 
 Juffrion v. Bordelon (14 La. An. 
 
 618) i. 582 
 
 Jungk V. Jungk (5 Iowa, 541) ii. 260 
 
 K. V. K. (43 N. H. 164) ii. 651 
 
 K. V. K. (Page on Dir. 171) i. 816 
 Kaine v. Weigley (10 Harris, 
 
 Pa. 179) ii. 572 
 
 Kalisch v. KaUsch (9 Wis. 529) ii. 767 
 Kane v. Kane (3 Edw. Ch. 389) 
 
 U. 333, 338, 605, 606 
 
 xliv 
 
 Section 
 Kashaw v. Kashaw (3 Cal. 312) 
 
 ii. 127, 298, 514 
 Kay V. Pienne (3 Camp. 232; 2 
 
 Bos. & P. 233) „'-^^^ 
 
 Kaye v. Kaye (4 Swab. & 1. 
 
 239) „"■ ^^^ 
 
 Kaywood v. Barnett (3 Dev. & 
 
 Bat 91) 1- °^" 
 
 Kea, Rex v. (11 East, 132) i. 547 
 
 Kean, State. (10 N.^H^^34J)^^^^^ 
 
 Ke<us. . Keats (l^Swab^^&^^T^^^^^^ 
 
 Kee V. Yasser (2 Ire. Ch. 553) i. 582 
 Keech v. Keech (Law Rep. 1 
 
 P. & M. 641) 1- '90 
 
 Keegan v. Smith (5 B. & C. 375) 
 
 li. 401 
 Keerl v. Keerl (84 Md. 21) u. 359a 
 Keighley's Case (10 Co. 189 a) i. 830 
 Keith V. Keith (Wright, 518) ii. 600 
 Keller v. Phillips (89 N. Y. 351) i. 553 
 Kelley v. Proctor (41 N. H. 189) ii. 283 
 
 V. Mize (3 Sneed, Tenn. 
 
 59) ii. 753 e 
 
 Kellogg V. Robinson (32 Conn. 
 
 335) i- 562 
 Kelly V. Drew (12 Allen, 107) i. 455 
 V. KeUy (Law Rep. 2 P. & 
 
 M. 31) i- 783 a 
 
 V. McGuire (15 Ark. 555) i. 540 
 
 V. Neely (7 Eng. 657) i. 814 
 
 V. Scott (5 Grat. 479) i. 319 ; 
 
 ii. 691 
 Kemble v. Church (3 Hag. Ec. 
 
 273) ii.. 563 
 
 Kemp V. Downham (8 Harring. 
 
 Del. 417) i. 568, 619, 620 
 
 Kempe v. Kempe (1 Hag. Ec. 
 
 582) ii. 425, 457, 459, 465 
 
 Kempf t). Kempf (84 Misso. 211) 
 
 i. 839 a, 761 ; ii. 575 
 Kendall v. Dodge (3 Vt. 360) i. 670 
 
 V. KendaU (1 Barb. Ch. 
 
 610) ii. 365, 411, 490 
 
 Kenemer v. Kenemer (26 Ind. 
 
 330) ii. 343 a 
 
 Kenley v. Kenley (2 How. Missis. 
 
 751) i. 717, 719, 722; ii. 302 
 
 V. Kenley (2 Yeates, 207) i. 299 
 
 Kenn's Case (7 Co. 42) i. 113 ; ii. 754 
 Kennard v. Burton (25 Maine, 
 
 39) ii. 528, 659 
 
 Kennedy v. Campbell (3 Wilson 
 
 & Shaw, 185) i. 238 
 
 0. Cunningham (2 Met. 
 
 Ky. 538) i. 84 
 
 V. Doyle (10 Allen, 161) i. 467 
 
 V. Macdowall ( Ferg. Consist. 
 
 Law Rep. 163, App. 90) i. 263 
 
 Kenningham o. McLaughlin (3 
 
 T. B. Monr. 30) ii. 527 
 
KIN 
 
 INDEX TO THE CASES CITED. 
 
 KTN 
 
 Section 
 Kenny v. Clarkson (1 Johns. 886) 
 
 i. 426, 427 
 Kenrick v. Kenrick (4 Hag. Ec. 
 
 114) i. 717 ; u. 269, 621, 626, 629, 
 631 
 Kent V. Burgess (11 Sim. 361) 
 
 i. 390, 392, 395, 396, 400 
 
 V. State (8 Blackf. 163) i. 346 
 
 Kenyon v. Ashbridge (11 Casey, 
 
 157) i. 497, 547 
 
 Kerr, The Judge v. (17 Ala. 328) 
 
 i. 582 
 
 c. Kerr (41 N. Y. 272) 
 
 ii. 144, 145, 163 a, 763 
 Kester v. Stark (19 111. 328) i. 143 
 
 Keyes ■.. Keyes (2 Fost. N. H. 
 
 553) ^i. 124, 166, 279 ; ii. 291 
 
 Keys V. Norris (6 Rich. Eq. 388) 
 
 ii. 567 
 Kibhe v. Antram (4 Conn. 134) i. 291 
 Kibblewhite v. Eowland (Eerg. 
 
 226) ii. 29, 148, 150 
 
 Kiffin u. Kiffin (cited 1 P. Wms. 
 
 697) ii. 529 
 
 Kilburn v. Mullen (22 Iowa, 
 
 498) i. 494 
 
 Killiam v. Killiam (25 Ga. 186) ii. 517 
 Killinger v. Eeidenhauer (6 S. & ■ 
 
 R. 631) i. 173 
 
 Kimball v. Keyes (11 Wend. 331 i. 660 
 
 V. Kimball (13 N. H. 222) 
 
 i. 767, 800 ; ii. 673, 674, 682 
 King, Ex parte (27 Ala. 387) 
 
 ii. 406, 421 
 
 V. Chase (15 N. H. 9) ii. 639 
 
 V. King (28 Ala. 316J) i. 766 ; 
 
 ii. 250, 472 
 V. King (Law Rep. 2 P. & 
 
 M. 113) ii. 305 
 
 u. King (2 Robertson, 153) 
 
 ii. 281 
 V. King (4 Scotch Sess. Cas. 
 
 N. s. 567) ii. 631 
 
 V. Paddock (18 Johns. 141) i. 583 
 
 V. Sansom (3 Add. Ec. 277) 
 
 i. 634 
 
 , State V. (1 Ga. Decis. 93) ii. 529 
 
 Kingsberry v. Kingsberry (3 
 
 Barring. Del. 8) ii. 512, 632 
 
 Kingston's Case, Duchess of (20 
 
 Howell St. Tr. 365; 1 Leach, 
 
 4th ed. 146 ; 1 East P. C. 468 ; 
 
 2 Smith Lead. Cas. 424) i. 497 ; 
 
 ii. 748, 757, 758, 759 
 Kingston o. Lesley (10 S. & E. 
 
 383) i. 476 
 
 Kinney v. Hosea (3 Barring. Del. 
 
 77) i. 424 
 
 Kinnier v. Kinnier (53 Barb. 
 
 454) ii. 145 
 
 V. Kinnier (58 Barb. 424) ii. 145 
 
 V. Kinnier (45 N. Y. 636) ii. 128 
 
 „ Section 
 
 Kmsey v. Kinsey (37 Ala. 393) 
 
 i. 794 a, 798 
 
 V. Kinsey (1 Yeates, 78; 
 
 2 Dallas, 128) i. 719 
 
 Kintzinger's Estate (2 Ashm. 
 
 466) u. 714 
 
 Kipping V. Ash (1 Robertson, 
 
 270) ii. 309 
 
 Kirby v. Kirby (1 Paige, 261) 
 
 ii. 295, 302, 446, 457, 461, 504, 508 
 
 V. Kirby (1 Paige, 565) 
 
 ii. 236, 435 
 
 u. State (3 Humph. 289) ii. 614 
 
 Kirkman v. Kirkman (1 Hag. 
 Con. 409) i. 722, 726, 730, 734, 737, 
 
 761 
 Kirkwall v. Kirkwall (2 Hag. 
 Con. 277) ii. 23, 40, 49 
 
 V. Kirkwall (Poynter Mar. 
 
 & Div. 266) ii. 430, 450 
 
 Kirrigan v. Kirrigan (2 McCar- 
 
 ter, 146) ii. 145 
 
 Kleinert v. Ehlers (2 Wright, Pa. 
 
 439) i. 448, 548 
 
 KUne o. Kline (1 Philad. 383) 
 
 ii. 421, 496 
 Kling, People v. (6 Barb. 366) 
 
 ii. 550, 661 
 Klingenberger v. Klingeuberger 
 
 (6 S. & R. 187) ii. 328 
 
 Klutts V. Klutts (5 Sneed, 423) i. 823 
 ICnight V. Knight (2 Hay w. 101) 
 
 ii. 302, 355 
 
 V. Knight (31 Iowa, 451) i. 752 
 
 V. Wedderburn (Morr. Diet. 
 
 Decis. 14545) ii. 141 
 
 Knower v. Wesson (13 Met. 143) 
 
 i. 543 
 Knowlton, Commonwealth v. (2 
 
 Mass. 530) i. 68 
 
 Knox V. Bushell (3 C. B. n. s. 
 
 334) i. 621 
 
 Kock V. Kock (42 Barb. 515) 
 
 ii. 406 a 
 Kolb's Case (4 Watts, 154) ii. 258 
 Koonce v. Wallace (7 Jones, 
 
 N. C. 194) i. 141, 145, 150 
 
 Kottman, Matter of (2 Hill, S. C. 
 
 363) ii. 529 
 
 Krause v. Krause (23 Wis. 354) ii. 406 
 Krebs v. O'Grady (23 Ala. 726) 
 
 i. 557, 561, 596 
 Kriger v. Day (2 Pick. 316) ii. 522, 
 730 731 
 Krupp V. SchoU (10 Barr, 193) ' 
 
 i. 582 
 Kruse v. Kruse (25 Misso. 68) 
 
 ii. 127, 211 
 Kuhl V. Knauer (7 B. Monr. 130) 
 
 i. 443 
 Kynnaird v. Leslie (Law Rep. 1 
 C. P. 389) i. 355 
 
 xlv 
 
LAU 
 
 INDEX TO THE CASES CITED. 
 
 LBH 
 
 Section 
 li. V. H. (Law Eep. 1 P. & M. 
 
 293) ii. 588 b 
 
 L. V. H. (4 Swab. & T. 115; 35 
 
 Law J. N. s. P. & M. 105) i. 881 a ; 
 ii. 579 a, 588 b, 597 
 
 See Lewis t. Hayward. 
 Labotiere v. Labotiere (8 Mass. 
 
 383) ii. 311, 314 
 
 Lacon v. Higgins (B Stark. 178; 
 
 D. & R. N. P. C. 38) 
 
 i. 283, 356, 
 529 
 ■ (14 
 
 ii, 625 
 
 Lahey, Commonwealth 
 
 Gray, 81) 
 Laing v. Laing (6 C. E. Green, 
 
 248) i. 798 
 
 Lakin v. Lakin (2 Allen, 45) i. 455, 
 
 627 
 
 V. Lakin (1 Spinks, 274) i. 771 
 
 Lalande v. Jore (5 La. An. 32) i. 764 
 Lambert, People v. (SjMioh. 349) 
 
 i. 411, 427, 464, 468, 473, 474, 
 
 475, 497, 499, 532 
 
 Landt, People v. (2 Johns. 375) ii. 550 
 
 Lane v. Crombie (12 Pick. 177) ii. 75 
 
 V. Goodwin (3 Gale & D. 
 
 610;4Q. B. 361) i. 294 
 V. Ironmonger (13 M. & W. 
 
 868) i. 553, 554, 556 
 
 V. Lane (2 Mass. 167) ii. 173, 255 
 
 Lang V. Lang (13 Scotch Sess. 
 
 Cas. N. s. 1108) i. 804 
 
 Langdonw. Langdon (25 Vt. 678) 
 
 ii. 56, 58 
 Langham v. Bewett (Cro. Car. 
 
 68) i. 581 
 
 Langsing v. Langsing (41 How. 
 
 Pr. 248) ii. 498 
 
 Langstaflf v. Langstaff (Wright, 
 
 148) ii. 198, 620, 626 
 
 Langtry v. State (30 Ala. 536) i. 493 
 Lapsley v. Gierson (1 H. L. Cas. 
 
 498) , i. 453, 506, 508 
 
 Larrison v. Larrisou (5 C. E. 
 
 Green, 100) ii. 618, 619 
 
 LarwiU v. Kirby (14 Ohio, 1) i. 344 
 Lasbrook u. Tyler (1 Eep. Ch. 
 
 44) ii. 353 
 
 Latham v. Latham (2 Swab. & 
 
 T. 299) ii. 498, 748 
 
 Lathan v. Proven (2 Scotch Sess. 
 
 Cas. new ed. 250) ii. 635 
 
 Lathorp, United States v. (17 
 
 Johns. 4) ii. 701 
 
 Latour v. Latour (2 Swab. & T. 
 
 524) ii. 32 
 
 Latterett v. Cook (1 Iowa, 1) i. 424 
 Lattier v. Lattier (5 Ohio, 538) ii. 844 
 Lauber v. Mast (15 La. An. 593) 
 
 i. 746 
 Laud V. Laud (14 Sm. & M. 99) 
 
 i. 404 
 Lauder v. Vanghent (Perg. 250) ii. 176 
 
 xlvi 
 
 Section 
 Laughery». Laughery (15 Ohio, 
 
 404) "■ '°^ 
 
 Laurie v. Laurie (9 Paige 234) 
 
 ii. 395, 409, 504, 530 
 Latour v. Teesdale (8 Taunt. 
 
 830) '■ °°' °^^ 
 
 Larie «. Phillips (3 Bur. 1776) i. 581 
 
 Law V. Wilkin (6 Ad. & E. 718) u. 528 
 
 Lawrence «. Lawrence (3 Paige, 
 
 267) i. 758 ; ii. 302, 445, 446 457, 
 
 4d1, 4(^ 
 
 V. Spear (17 Cal. 421) i. 582, 614 
 
 Lawson v. Shotwell (27 Missis. 
 630) u. 851, 363, 381, 483, 488, 
 
 ' 492,690,705 
 
 V. State (20 Ala. 65) ii. 613, 625, 
 
 631, 642 
 Layne v. Pardee (2 Swan, 282) i. 406 
 Lea V. Lea (8 Allen, 418) i- 783 
 
 V. Lea (99 Mass. 493) i. 798; 
 
 ii. 767 
 Leader v. Barry (1 Esp. 853) i. 442, 
 
 Leak v. ElUott (4 Misso. 446) i. 409, 
 
 418 
 Leake v. Linton (6 La. An. 262) i. 813 
 Lean v. Schutz (2 W. Bl. 1195) 
 
 i. 592 ; ii. 437, 690 
 Leary v. Leary (18 Ga. 696) ii. 286, 
 
 621 
 Leavenworth v. Brockway (2 
 
 Hill, N. Y. 201) i. 527 
 
 Leavitt v. Leavitt (13 Mich. 452) 
 
 i. 179 a 
 
 V. Leavitt (Wright, 719) 
 
 i. 797 ; ii. 533, 556 
 LeBarron v. LeBarron (85 Vt. 
 
 365) i. 71, 85 ; ii. 397, 593, 599 a 
 LeBreton v. Miles (8 Paige, 261) 
 
 i. 404 
 Leckie v. Moir (1 Eras. Dom. 
 
 Eel. 456) i. 723 
 
 Lecompte v. Wash (9 Misso. 547) 
 
 i. 627 
 LeDoux V. Her Husband (10 La. 
 
 An. 668) . u. 227 
 
 Lee V. Lee (1 Dick. 321 ; 2 Dick. 
 806) ii. 741 
 
 V. Smith (18 Texas, 141) i. 802 
 
 Lefevre v. Murdock (Wright, 
 
 205) ii. 737 
 
 Leftwich v. Commonwealth (5 
 
 Eand. 657) i. 319 
 
 Legeyt v. O'Brien (Milward, 
 
 825) i. 124, 180, 181, 457, 495 ; 
 
 u. 563 
 
 Legg V. Legg (8 Mass. 99) i. 412, 527 ; 
 
 ii. 714, 754 
 
 Legge V. Dumbleton (9 Jur. 144) 
 
 ii. 294 
 Lehigh Valley Eailroad v. Hall 
 (11 Smith, Pa. 861) i. 437 
 
LIS 
 
 INDEX TO THE CASES CITED. 
 
 LOR 
 
 Section 
 Lehr v. Beaver (8 Watts & S. 
 
 102) i. 653 
 
 Leicester's Case (1 Hag. Con. 
 
 148) ii. 76 
 
 Leighton v. Leighton (14 Jur. 
 
 318) ii. 831 
 
 Leitli V. Leith (39 N. H. 20) i. 711 ; 
 ii. 123, 144, 173, 199, 763 
 Lempriere v. Lempriere (Law 
 
 Rep. 1 P. & M. 569) ii. 82, 87 
 
 LeRoy v. Crowninsliield (2 
 
 Mason, 151) i. 402 
 
 Leseuer v. Leseuer (31 Barb. 
 
 330) ii. 344, 347 
 
 Letters v. Cady (10 Cal. 533) i. 224 
 Levering!). Levering (16 M. D. 
 
 213) i. 773, 791 
 
 Levins v. Sleator (2 Greene, 
 
 Iowa, 604) i. 663, 669, 684, 686, 
 
 692, 693 ; ii. 199, 706 
 Lewis V. Hayward (4 Swab. & T. 
 
 115; 35 Law J. n. s. P. & M. 
 
 105) i. 327,330; ii. 688 6 
 
 See L. T. H. 
 
 V. Lee (3 B. & 0. 291) ii. 736 
 
 V. Lewis (2 Halst. 22) i. 792 
 
 V. Lewis (9 Ind. 105) ii. 253, 334, 
 
 338, 346, 642 
 V. Lewis (3 Johns. Ch. 
 
 519) ii. 408, 489 
 
 V. Lewis (2 Lee, 579) ii. 585 
 
 V. Lewis (106 Mass. 309) ii. 766 
 
 V. Lewis (5 Misso. 278) i. 726, 
 
 826; ii. 651 
 
 V. Lewis (2 Swab. & T. 394) 
 
 ii. 743 
 
 V. Webb (3 Greenl. 326) i. 675 
 
 Lewiston v. North Yarmouth (5 
 
 Greenl. 66) i. 658 
 
 Libby, State o. (44 Maine, 469) 
 
 i. 497, 502 
 Liddlow V. Wilmot (2 Stark. 86) i. 670 
 Light y. Light (17 S. & R. 273) 
 
 ii. 255 
 
 V. Light (1 Watts, 263) ii. 227 
 
 Ligonia v. Buxton (2 Greenl. 
 
 102) i. 279 
 
 Limerick v. Limerick (4 Swab. & 
 
 T. 252) n. 271 a 
 
 Lincecum v. Lincecum (3 Misso. 
 
 441) i. 301 
 
 Lincoln v. Battelle (6 Wend. 475} 
 
 i. 424 
 Linden v. Linden (36 Barb. 61) ii. 317 
 Lindo V. Belisario (1 Hag. Con. 
 
 216) i. 5, 14, 19, 218, 226, 228, 394 
 Lindsey v. Lindsey (14 Ga. 657) 
 
 ii. 529, 551 
 Lippy V. Masonheimer (9 Md. 
 
 310) i. 646 
 
 Lister's Case (8 Mod. 22) i. 756 
 
 Lister, Kex v. (1 Stra. 477) i. 756 
 
 Section 
 
 Little V. Little (13 Gray, 264) i. 19 ; 
 
 ii. 284, 668 
 
 V. Little (63 N, C. 22) ii. 397 
 
 , State t). (1 N. H. 257) ii. 753 e 
 
 Littlejohn, Commonwealth v. (16 
 Mass. 163) i. 442, 464, 473, 493, 
 
 499 
 Livingston v. Maryland Insur- 
 ance Co. (6 Cranch, 274) i. 427 
 Llewelyn's Divorce Bill (1 Macq. 
 
 Scotch Ap. Cas. 280) ii. 91, 418 
 
 Lloyd V. Lloyd (Law Rep. 1 P. & 
 M. 222) ii. 641a 
 
 V. Lloyd (1 Swab. & T. 
 
 567) ii. 28 a, 29, 239 
 
 V. Passingham (Cooper, 162) 
 
 i. 450, 466 
 
 V. Petitjean (2 Curt. Ec. 
 
 251) i. 397, 533 
 
 Loader v. Loader (3 Hag. Ec. 
 
 150) ii. 342 
 
 Lockridge v. Lockridge (2 B. 
 
 Monr. 528; 3 Dana, 28) i. 719, 734 : 
 ii. 354, 355, 358, 427, 428, 430 
 Lockwood V. Crawford ( 18 Conn. 
 
 361) i. 430 
 
 V. Lockwood (2 Curt. Ec. 
 
 281) i. 719, 744; ii. 280, 612, 629, 
 
 655, 657, 659 
 
 V. Lockwood (Wadd. Dig. 
 
 238) i. 392 
 
 V. Thomas (12 Johns. 248) i. 578 
 
 Lockyer v. Lockyer (1 Edm. Sel. 
 Cas. 107) ii. 626 
 
 V. Sinclair (8 Scotch Sess. 
 
 Cas. N. s. 582) i. 237, 239 
 
 Lodge u. Hamilton (2 S. & R. 
 
 491) ii. 714, 716, 725 
 
 Logan V. Logan (2 B. Monr. 142) 
 
 i. 29, 799 ; ii. 319, 358, 369, 
 375, 394, 428, 519, 679 
 LoUey, Rex v. (Russ. & Ry. 237 ; 
 2 CI. & F. 568) i. 297 ; ii. 144, 181, 
 
 198 
 Lomax v. Holmden (2 Stra. 940) 
 
 i. 162 
 Londonderry v. Chester (2 N. H. 
 268) i. 5, 272, 279, 281, 282, 283, 
 284, 285, 287, 289 
 Long V. Long (2 Hawks, 189) 
 
 i. 707, 735 
 Longfellow v. Longfellow ( Clarke, 
 
 344) ii. 409, 461, 489 
 
 Lord V. Chadbourne (42 Maine, 
 429) ii. 756 
 
 V. Poor (23 Maine, 669) ii. 528 
 
 Lord Advocate v. Robertson (1 
 
 Eras. Dom. Rel. 53) i. 325 
 
 Loring ii. Thorndike (5 Allen, 
 
 257) i. 398, 418 
 
 Lorman v. Clarke (2 McLean, 
 668) i. 70 
 
 xlvii 
 
MCC 
 
 INDEX TO THE CASES CITED. 
 
 MCG 
 
 Section 
 Loud V. Loud (4 Bush, 463) i. 645 
 Louis ». Louis (Law Rep. 1 P. & 
 
 M. 230) ii. 457 
 
 Love V. Bentley (11 Mod. 134) i. 466 
 
 u. Moynehan (16 III. 277) i. 597 
 
 Loveden v. Loveden (2 Hag. 
 Con. 1) ii. 613, 614, 626, 629, 631, 
 
 637 
 
 V. Loveden (1 Pliillim. 208) 
 
 ii. 424, 426 
 Lovering w.Lovering (3 Hag. Ec. 
 
 85) ii. 11, 21, 22, 253 
 
 Lovett V. Lovett (11 Ala. 763) i. 71 ; 
 
 ii. 87, 379, 447, 457, 490, 513 
 
 Lucas V. Lucas (3 Gray, 136) ii. 751 
 
 V. Lucas (2 Texas, 112) 
 
 i. 722, 724 
 
 V. Parsons (23 Ga. 267) ii. 568 
 
 Lufie, Kex v. (8 East, 193) i. 152, 
 
 448 
 Lumley, Reg. v. (Law Rep. 1 C. 
 
 C. 196) i. 453, 454 
 
 Lyle V. Lindsey (5 B. Monr. 
 
 123) ii. 75 
 
 Lyman v. Mower (2 Vt. 517) i. 670 
 Lyncli V. Knight (5 Law Times, 
 
 N. s. 291) i. 593 
 
 V. Lynch (33 Md. 328) i. 761, 793 
 
 Lynde v. Lynde (2 Barb. Ch. 72; 
 
 4 Sandf. Ch. 373) ii. 457 
 
 Lyon V. Knott (26 Missis. 548) i. 405 
 
 V. Lyon (21 Conn. 185) 
 
 ii. 311, 376, 381, 441, 500, 508 
 
 V. Lyon (2 Gray, 367) ii. 159, 
 
 163 a, 209, 763 
 Lyons v. Blenkin (Jacob, 245) ii. 546 
 Lystera. Lyster (1 Iowa, 130) i. 832 
 
 M. u. B. (3 Swab. & T. 550) i. 331 a ; 
 ii. 583, 597 
 M. V. H. (3 Swab. & T. 517) i. 331 a ; 
 ii. 579 a, 588 a, 597 
 M. V. H. (3 Swab. & T. 592) ii. 588 a 
 McAdam v. Walker (1 Dow, 148) 
 
 i. 180, 274 
 McAfee v. Kentucky University 
 
 (7 Bush, 135) ii. 125 
 
 MoCafferty v. McCafferty (8 
 Blackf. 218) U. 107, 318, 343, 379, 
 513, 706, 710 
 McCarthy v. Decaix (2 Russ. & 
 Myl. 614; 2 CI. & F. 568; 3 
 Hag. Ec. 642) ii. 182, 183, 294 
 
 McCarty v. McCarty (2 Strob. 6) 
 
 i 42, 43, 615 
 McClallen v. Adams (19 Pick. 
 
 332) i. 554, 567 
 
 McClurg's Appeal (16 Smith, Pa. 
 
 366) i. 775 
 
 McClurg V. Terry (6' C. E. Green, 
 225) i. 244 a 
 
 xlviii 
 
 Section 
 McConnell v. Wenrich (4 Harris, 
 
 Pa. 365) ii- 715 
 
 McCormack, People v. (4 Parker, 
 
 9) i. 442 
 
 McCormick v. McCormick (7 
 Leigh, 66) i. 15, 582 
 
 V. McCormick (19 Wis. 
 
 172) ii. 673 
 
 MeCosker v. Golden (1 Bradf. 
 
 64) ii- 739 
 
 McCoy V. McCoy (3 Ind. 555) 
 
 i. 783 ; ii. 673 
 McCraney v. McCraney (5 Iowa, 
 
 232) i. 99, 810; ii. 682, 706, 753 d 
 McCrocklin v. McCrocklin (2 B. 
 Monr. 370) i. 645, 795; ii. 298, 
 
 319, 446 
 McCubbin v. Patterson (16 Md. 
 
 179) i. 646 
 
 McCuUoch u. McCulIoch (8 
 Blackf. 60) ii. 245 
 
 V. McCuUoch (Ferg. 257) i. 890 
 
 McCuUough V. Robinson (2 Ind. 
 
 630) ii. 891 
 
 McCuUum V. Gourlay (8 Johns. 
 
 147) ii. 75 
 
 McCutchen v. McGahay (11 
 
 Johns. 281) i. 568, 786 
 
 McDaniel v. Cornwall (1 Hill, 
 
 S. C. 428) i. 581, 584 
 
 McDermott's Appeal (8 Watts & 
 S. 251) i. 786; ii. 178, 175, 210, 
 
 249, 682 
 McDermott v. McDermott (18 
 
 Ohio State, 332) ii. 625 
 
 McDonald v. Fleming (12 B. 
 Monr. 286) ii. 262, 291 
 
 V. McDonald (1 Mich. N. P. 
 
 191) ii. 326 
 
 , State V. (25 Misso. 176) i. 497 
 
 Macdonald v. Macdonald (4 
 
 Swab. & T. 242) i. 778 a, 805 a 
 
 McDwire v. McDwire (Wright, 
 
 354) ii. 38, 50 
 
 Mace V. Mace (7 Mass. 212) ii. 314 
 McElmoyle v. Cohen (13 Pet. 312) 
 
 ii. 170 a 
 McElmurray, State v. (3 Strob. 
 
 33) i. 514 
 
 MeEwen v. McEwen (2 Stock. 
 
 286) ii. 407, 421 
 
 McFarland v. White (18 La. An. 
 
 394 i. 412 
 
 Macfarlane v. Macfarlane (11 
 Scotch Sess. Cas. n. s. 533) 
 
 ii. 51, 62 
 McGahay v. Williams (12 Johns, 
 
 293) i. 568, 786 
 
 McGee v. McGee (10 Ga. 477) 
 
 i. 71 ; ii. 356, 386, 398, 400, 
 
 406, 409, 429, 445, 457, 
 
 459, 461, 489, 508 
 
MCR 
 
 INDEX TO THE CASES CITED. 
 
 MAB 
 
 Seotion 
 McGhee v. McGhee (2 Sneed, 
 
 221) ii. 453 
 
 McGiffert v. McGiffert (31 Barb. 
 
 69 ; 13 Ind. 816) i. 711 ; ii. 123, 163 o 
 McGowan v. Caldwell (1 Cranch 
 
 C. C. 481) ii. 717 
 
 McGuu-e V. McGuire (7 Dana, 
 
 781) i. 691 
 
 V. Malony (1 B. Monr. 
 
 224) ii. 723 
 
 Mclnnes v. Moir (i"erg. Consist. 
 Law App. 125) i. 238 
 
 V. More (Ferg. Consist. 
 
 Law Rep. 33; 1 Fras. Dom. 
 Rel. 218) i. 234 
 
 Mclntyre v. Mclntyre (Wright, 
 135) ii. 344 
 
 McKarracher v. McKarracher (8 
 Yeates, 56) ii. 51, 729 
 
 McKay v. McKay (18 B. Monr. 
 8) i. 814 
 
 V. McKay (6 Grant, U. C. 
 
 Ch. 380) i. 783 ; ii. 366 
 
 McKeagy, Commonwealth v. (1 
 
 Ashm. 248) ii. 528 
 
 McKeehnie v. McKechnie (1 
 
 Swab. & T. 550) ii. 271 a 
 
 McKennan v. Phillips (6 Whart. 
 
 571) i. 653 
 
 Mackinley v. McGregor (3 
 
 Whart. 369) i. 557 
 
 McKinney v. Clarke (2 Swan, 
 
 Tenn. 821) i. 176 
 
 V. McKinney (1 Blackf. 
 
 363) ii. 516 
 
 V. Pope (3 B. Monr. 93) ii. 75 
 
 McKinnon v. McDonald (4 Jones 
 Eq. 1) i. 582, 585 
 
 McLellan, Ex parte (1 Dowl. P. 
 C. 81) ii. 546 
 
 Maclelland v. Fulton (Ferg. Con- 
 sist. Law, 185) i. 730 
 
 Macnamara's Case ( 2 Bland, 566) 
 
 ii.855 
 
 McNamara v. Fisher (3 Esp. 18) i. 591, 
 
 592 
 
 V. McNamara (2 Hilton, 
 
 547 ; 9 Abbott Pr. 18) i. 761 ; u. 317 
 McNeil V. McNeil (8 Edw. Ch. 
 
 550) ii. 176 
 
 McNeill V. Arnold (17 Ark. 154) 
 
 i. 426, 427 
 McPike, Commonwealth v. (8 
 
 Cush. 181) ii. 659 
 
 McQuaid v. McQuaid (Wright, 
 
 223) ii. 677 
 
 McQuigg V. McQuigg (13 Ind. 
 
 294) ii. 750, 753 d 
 
 McRae v. Mattoon (18 Pick. 58 
 
 i. 427 ; ii. 311 
 MoRaveu v. McGuier (9 Sm. & 
 
 M. 34) ii. 744 
 
 Section 
 McReynolds v. State (5 Cold. 
 
 18) i. 163 a 
 
 McVey v. Holden (15 La. An. 
 
 317) i. 406 
 
 Madden, Reg. v. (14 U. C. Q. B. 
 
 588) i. 494 
 
 Madison v. Madison (1 Wash. 
 
 Ter. 73) ii. 474 
 
 Magee v. Sanderson (10 Ind. 261) i. 424 
 
 V. Young (40 Missis. 164) i. 696 
 
 Magrath v. Magrath (103 Mass. 
 
 577) i. 778 a, 805 a 
 
 Maguire v. Maguire (7 Dana, 
 
 181) i. 5, 8, 14, 678, 679, 686; ii. 128, 
 
 141, 144, 147, 159, 163 a, 170, 198, 
 
 199, 260, 427, 612, 514, 702, 750 
 
 Mahone v. Mahone (19 Cal. 626) 
 
 i. 717, 744, 813 
 Mahoney v. Ashton (4 Har. . & 
 
 McH. 295) i. 154 
 
 Mainwaring v. Leslie (Moody & 
 
 M. 18; 2 Car. & P. 507) i. 620 
 
 Mahnda v. Gardner (24 Ala. 719) 
 
 i. 156, 167 
 MaUinson u. Mallinson (Law Rep. 
 
 1 P. & M. 221) ii. 526, 637 
 
 Malony v. Malony (9 Rob. La. 
 
 116) ii. 260 
 
 Man's Case (Cro. Eliz. 228; Sir 
 
 F. Moore, 907) i. 816 
 
 Manby v. Scott (2 Smith Lead. 
 
 Cas. 245) i. 554 
 
 Manchester v. Hough (5 Mason, 
 67) i. 282 a 
 
 V. Manchester (24 Vt. 649) ii. 283, 
 
 659 
 Mandigo v. Mandigo (15 Vt. 786) i. 817 
 Mangue v. Mangue (1 Mass. 240) 
 
 i. 289, 478 ; ii. 263 
 Manning u. Clement (7 Bing. 362) ii. 75 
 
 V. Manning (Law Rep. 2 P. 
 
 & M. 223) ii. 121, 145 
 
 Mansfield v. Mclntyre (10 Ohio, 
 27) ii. 161, 169, 701, 707, 711, 754 
 
 V. Mansfield (13 Mass. 412) ii. 306, 
 
 308 
 
 V. Mansfield (26 Misso. 163) 
 
 ii. 751 
 
 V. Mansfield (Wright, 284) i. 783 ; 
 
 ii. 29, 235, 604, 076 
 
 , Reg. u. (1 Q. B. 444 ; 1 Gale 
 
 & D. 7) i. 448 
 
 Manwairing v. Sands (2 Stra. 
 
 706) i. 578 
 
 Marbletown v. Kingston (20 
 
 Johns. 1) i. 155 
 
 March v. Mai-ch (Law Rep. 1 P. 
 & M. 437) ii. 533 
 
 V. March (2 Swab. & T. 49) 
 
 ii. 640 
 Marker v. Marker (3 Stock. 256) i. 792, 
 
 ii. 407 
 
 ' xlix 
 
MAU 
 
 INDBS TO THE CASES CITED. 
 
 MEB 
 
 Seotiow 
 Marlborough v. Hebron (2 Conn. 
 
 20) • ii. 556 
 
 Mariow V. Pitfeild (1 P. 'VVms. 
 
 558) i.621 
 
 Harris v. Mams (2 Swab. & T. 
 
 530) ii. 32 
 
 Marsh v. Hutchinson (2 Bos. & 
 P. 226) i. 590, 591, 592 
 
 V. Marsh (2 Beasley, 281) ii. 38, 
 
 40, 819 
 
 V. Marsh (1 McCarter, 315) i. 801 
 
 V. Marsh (1 Swab. & T. 312) i. 734 ; 
 
 ii. 636, 538 
 Marshall v. Billingsly (7 Ind. 250) i. 193 
 
 V. Hamilton (10 Jur. n. s. 
 
 853) ii, 579 a 
 
 V. Button (8 T. E. 545) i. 591, 592 ; 
 
 ii. 437, 438 
 Martin's Divorce Bill (1 H. L. 
 
 Cas. 79) ii. 109 
 
 Martin v. Boler (18 La. An. 369) 
 
 i. 405 
 
 V. Carron (2 Butcher, 228) 
 
 ii. 188 
 
 V. Martm (22 Ala. 86) i. 299, 300, 
 
 533,542; ii. 289 
 
 V. Martin (4 Halst. Ch. 563) 
 
 ii. 407 
 
 V. Martin (47 N. H. 52) i. 823 
 
 V. Martin (1 Sm. & M. 176) i. 409, 
 
 418 
 
 V. Martin (Wright, 104) ii. 409 
 
 Marvin, State v. (35 N. H. 22) i. 473, 
 483 ; ii. 621, 625, 643 
 Mary P. v. Samuel P. (1 N. H. 
 
 198) i. 819 
 
 Mash, Commonwealth v. (7 Met. 
 
 472) i. 299 
 
 Mason I'.'Crosby (1 Woodb. & M. 
 342) i. 173 
 
 V. Mason (1 Edw. Ch. 278) i. 718, 
 
 780, 734, 743 
 
 V. Piggott (11 111. 85) i. 692 
 
 V. Wash (Breese, 16) ■ i. 418 
 
 Hasten v. Hasten (15 N. H. 159) ii. 50, 
 
 99, 127, 628, 682 
 
 tfasterton's Case (1 Swint. 427) i. Ill 
 
 ilatchin v. Matchin (6 Barr, 332 ; 
 
 10 Law Reporter, 266) i. 704, 712 • 
 
 ii. 242, 613, 626, 642 
 
 ilatthews u. Matthews (13 La. 
 
 An. 197) i. 405 
 
 V. Matthews (1 Swab. & T. 
 
 499; 3 Swab. &T. 161) ii. 108 
 
 lattison v. Mattison (1 Strob. 
 Eq. 387) i. 42; ii. 292, 355 
 
 lattocks V. Steams (9 Vt. 326) 
 
 ii. 712 
 
 lattox V. Mattox (2 Ohio, 233) ii. 76 
 
 80, 87, 253, 255 
 
 [aule V. Mounsey (1 Robertson, 
 
 40) i. 480 ; ii. 640 
 
 1 
 
 Section 
 MaxweU v. Chapman (8 Barb. 
 579) i- 467 
 
 , Commonwealth v. (6 Law 
 
 Reporter, 214) Ii. 529 
 
 V. MaxweU (MUw. 290) i. 457, 
 
 488, 506 
 May V. May (12 Smith, Pa. 206) 
 
 i. 826 
 
 V. Hay (2 Stra. 1073) i. 466 
 
 V. Skey (16 Sim. 588) i. 622 
 
 Haybee v. Avery (18 Johns. 352) 
 
 ii. 688, 689 
 Mayer v. Poulkrod ("4 Wash. C. 
 C. 349) i. 70 
 
 V. Mayer (6 C. E. Green, 
 
 246) ii. 619, 642 
 
 Mayhew v. Mayhew (3 M. & S. 
 266; 2Phimm. 11) ii. 262 
 
 , State V. (2 Gill, 487) i. 685 
 
 V. Thayer (8 Gray, 172) i. 568, 
 
 621, 786 
 Mayhugh v. Hayhugh (7 B. Monr. 
 424) i. 722, 726, 767, 768 ; ii. 38, 
 
 428 
 Mayne v. Baldwin (1 Halst. Ch. 
 
 454) ii. 549 
 
 Mayrant v. Guignard (3 Strob. 
 
 Eq. 112) ii. 723 
 
 Mead v. Hughes (15 Ala. 141) i. 595 
 
 , Rex V. (1 Bur. 542) i. 755 
 
 Meadows v. Duchess of Kingston 
 
 (Amb. 756) ii. 748, 754 
 
 Heans v. Welles (12 Met. 356) i. 441 
 Meddowcroft v. Huguenin (3 
 Curt. Ec. 403 ; 4 B. P. Moore, 
 386 ; 4 Knapp, 386) ii. 749, 754, 
 760, 761, 762 
 Medway v. Natick (7 Mass. 88) 
 
 i. 308 
 
 V. Needham (16 Mass. 157) 
 
 i. 308, 862, 371 
 Mehle v. LapeyroUerie (16 La. 
 
 An. 4) ii. 620 
 
 Meldora ;;. Heldora (4 Sandf. 
 
 721) ii. 302, 409 
 
 Hehzet v. Hehzet (1 Parsons, 78) 
 
 ii. 899, 425 
 Mellin v. Mellin (2 E. P. Moore 
 
 493) ii. 269 
 
 MeUish v. Deoosta (2 Atk. 14) ii. 527 
 Melton, State v. (Busbee, 49) i. 308 
 Melville's Case (29 HoweU St. 
 
 Tr. 764) i. 441 ; ii. 644 
 
 Mendes v. Mendes (3 Atk. 619 ; 
 
 1 Ves. 91) ii. 527 
 
 Menkins v. Lightner (18 111. 282) 
 
 i- 131 
 Mercem v. People (25 Wend. 64) 
 
 i. 650; ii. 529, 549,551 
 
 , People V. (3 Hill, N. Y. 
 
 399 ; 8 Paige, 47) i. 624, 626, 650, 
 786, 798 ; ii. 438, 529, 532, 546, 549 
 
MIL 
 
 INDEX TO THE CASES CITED. 
 
 MON 
 
 . „ Section 
 
 Mernam, Commonwealth v. (14 
 
 Pick. 518) il. 625 
 
 — — V. Hartford and New Haven 
 
 Eailroad (20 Conn. 354) ii. 723 
 
 Merrifield v Eobbins (8 Gray, 
 
 150) i. 424 
 
 Merrill v. Shattuck (55 Maine, 
 
 370) ii. 709 
 
 V. Sherburne (1 N. H. 199) 
 
 i. 670, 672, 675, 677, 682 
 Merritt v. Merritt (20 111. 65) i. 427 
 Merry v. Merry (12 Mass. 312) ii. 173, 
 
 255 
 Methodist Church v. Jaques (1 
 
 Johns. Ch. 450) ii. 369 
 
 Methvin v. Methvin (15 Ga. 97) 
 
 ii. 375, 406 
 Meyar v. Meyar (3 Met. Ky. 298) 
 
 ii. 260, 314, 421 
 Meyer v. Haworth (8 A. & E. 
 
 467) i. 591 
 
 Michelson v. Michelson (3 Hag. 
 
 Ec. 147) ii. 17, 23 
 
 Middleborough v. Rochester (12 
 
 Mass. 363) i. 95, 105, 124, 127, 136 
 Middlebury College v. Cheney 
 
 (1 Vt. 336) i. 414, 418 
 
 Middletou v. Croft (2 Stra. 1056 ; 
 
 2 Atk. 650) i. 61 
 
 V. Janverin (2 Hag. Con. 
 
 437) i. 361, 533 
 
 V. Middleton (2 Hag. Ec. 
 
 Supp. 134) ii. 253, 316 
 
 Miles V. Boyden (3 Pick. 213) ii. 527 
 
 V. Chilton (1 Robertson, 684) 
 
 i. 5, 149, 299, 300; ii. 294, 386, 402, 
 404, 580 
 
 V. Miles (2 Jones Eq. 21) ii. 256 
 
 Milford V. Milford (Law Rep. 1 P. 
 
 & M. 295) i. 722 
 V. Milford (Law Rep. 1 P. & 
 
 M. 715) ii. 526, 530, 532, 533 
 
 V. Worcester (7 Mass. 48) i. 279, 
 
 285, 289, 383, 450, 463, 473 
 Miller's Appeal (6 Casey, 478) i. 214 
 MiUer v. Clark (23 Ind. 370) ii. 479 
 V. Commonwealth (5 watts 
 
 & S. 488) i. 99, 675 
 
 V. Marokle (21 111. 152) i. 214 
 
 V. Miller (3 Binn. 30) ii. 260 
 
 V. MiUer (5 C. E. Green, 
 
 216) ii. 604, 644 
 
 V. MiUer (6 Johns. Ch. 91) 
 
 ii. 449, 457, 472 
 
 V. Miller (Law Rep. 2 P. & 
 
 M. 13) i. 771 
 
 V. MiUer (1 Sandf. Ch. 103) 
 
 ii. 717 
 
 V. Miller (Saxton, 386) i. 649, 
 
 786, 795, 806; ii. 282, 354, 369, 401, 
 
 472, 495 
 
 V. Miller (2 Swab. & T. 427) ii. 258 
 
 ,,.., Section 
 
 Miller V. Moore (1 C. P. Smith, 
 
 N. Y. 739) i. 101 
 
 MiUiner v. MiUiner (Wright, 138) 
 
 ii. 677 
 
 MUlis, Reg. V. (10 CI. & F. 534) i. 54, 
 
 56, 112, 207, 218, 249, 253, 254, 259, 
 
 261, 263, 270, 272, 273, 275, 277, 
 
 281, 392, 495 
 
 MUIs V. Duryee (7 Cranch, 481) 
 
 ii. 170 a, 701 
 
 V. MUIs (3 C. E. Green, 444) 
 
 ii. 604 
 Milneru. Milner (2Edw. Ch. 114) 
 
 ii. 319 
 
 V. Milner (4 Swab. & T. 240) 
 
 i. 726 
 Miltimore v. Miltimore (4 Wright, 
 
 Pa. 151) ii. 706, 753e 
 
 Mima Queen v. Hepburn (7 
 
 Cranch, 290) i. 540 
 
 Minard v. Mead (7 Wend. 68) i. 557 
 Miner v. Medbury (6 Wis. 295) i. 209 
 Miners Bank v. United States (1 
 
 Greene, Iowa, 553) i. 681 
 
 Minor v. Neal ( 1 Barr, 403) i. 344 
 
 MinshuU, Rex v. (1 Nev. & M. 
 
 277) i. 173 
 
 Minrielle, Succession of (15 La. 
 
 An. 342) i. 308 6 
 
 Mitchel, United States v. (3 
 
 Wash. C. C. 95) i. 478 
 
 Mitchell V. CowgiU (4 Binn. 20) i. 344 
 
 V. MiteheU (1 Spinks, 102) 
 
 ii. 496 
 
 V. Mitchell (11 Yt. 134) i. 438, 
 
 489 ; ii. 269 
 
 V. Treanor (11 Ga. 324) i. 620 
 
 Mix V. Mix (1 Johns. Ch. 108) ii. 354, 
 398, 406, 461, 489 
 
 V. Mix (1 Johns. Ch. 204) ii. 332, 
 
 844 
 Moffat's Case (Maoqueen H. L. 
 
 Praot. 658) ii, 91 
 
 MofEatt, Commonwealth v. (2 
 Dane Ab. 296) i. 499 
 
 V. Moffatt (5 Cal. 280) ii. 128 
 
 Mogg V. Mogg (2 Add. Ec. 292) i. 739 ; 
 
 ii. 640 
 Molony v. Molony (2 Add. Ec. 
 
 249) i. 789, 790, 804 
 
 Money v. Money (1 Spinks, 117) 
 
 ii. 413 
 Monroe v. Budlong (51 Barb. 493) i. 553 
 
 V. Douglass (1 Seld. 447) i. 411, 
 
 418 
 
 V. Twistleton (Peake Ev. 
 
 App. ed. of 1822, p. 39 ; Peake 
 Ad. Cas. 219) ii. 723 
 
 Monroy v. Monroy (1 Edw. Ch. 
 
 382) ii. 451 
 
 Monson v. WUliams (6 Gray, 
 416) 1. 666, 623 
 
 Ii 
 
MOB 
 
 INDEX TO THE CASE3 CITED. 
 
 M03 
 
 Seotioh 
 Montague v. Baron (5 D. & R. 
 532) i. 554 
 
 V. Benedict (3 B. & C. 631) i. 553, 
 
 554,556 
 
 V. Espinasse (1 Car. & P. 
 
 356) i. 554 
 
 V. Montague (2 Add. Ec. 
 
 372) ii. 309 
 
 V. Montague (2 Add. Be. 
 
 375) i. 523, 533; il. 262 
 
 Monteith v. Eobb (6 Scotch Sess. 
 
 Cas. N. s. 934) i. 265 
 
 Montgomery v. Montgomery (3 
 
 Barb. Ch. 132) i. 190; ii. 107, 241, 
 306, 307, 559, 573 
 Mooers v. Bunker (9 Fost. N. H. 
 
 420) i. 540 
 
 Moore v. Commonwealth (9 
 
 Leigh, 639) ' i. 473 
 
 V. Guest (8 Texas, 117) ii. 828 
 
 V. Gwynn (5 Ire. 187) i. 418 
 
 V. Moore (1 Atk. 272) ii. 741 
 
 V. Moore (3 E. F. Moore, 
 
 84) i. 804; ii. 610 
 
 V. Moore (18 La. An. 613) ii. 356 
 
 V. Moore (2 Mass. 117) ii. 173, 
 
 265 
 V. Moore (22 Texas, 237) ii. 258, 
 
 766 
 
 , Reg. V. (16 Jur. 752) i. 131 
 
 , State V. (11 Ire. 160) i. 452 
 
 , State V. (3 West. Law Jour. 
 
 134) i. 116, 299 
 
 V. Stevenson (27 Conn. 14) i. 596 
 
 V. Thompson (6 Misso. 858) i. 173 
 
 V. Whitaker (2 Harring. 
 
 Del. 50) i. 658 
 
 Moores v. Carter (1 Hemp. 64) i. 582, 
 
 608 
 
 V. Moores (1 C. E. Green, 
 
 275) i. 760, 798 
 
 Moorsora v. Moorsom (3 Hag. Ec. 
 
 87) ii. 5, 6, 7, 14, 15, 17, 19, 21, 26, 
 85, 88, 846 
 Morales v. Marigny (14 La. An. 
 
 855) i02, 406 
 
 Mordauntv. Mordaunt (Law Rep. 
 
 2 P. & M. 103) ii. 305 a, 308 a 
 
 V. Mordaunt (Law Rep. 2 
 
 P. & M. 109) ii. 306, 307, 755 
 Morgan v. GroflF (5 Denio, 364) ii. 75 
 V. Hopkins (2 PhilUm. 582) ii. 217, 
 
 281 
 V. Hughes (20 Texas, 141) i. 560, 
 
 619 
 V. McGhee (5 Humph. 13) i. 223, 
 
 855 
 
 V. Morgan (2 Curt. Ec. 679) ii. 8, 
 
 88, 297 
 
 V. Morgan (Law Rep. 1 P. 
 
 & M. 644) i. 307 a ; ii. 82 
 V. Pettit (3 Scam. 529) ii. 702 
 
 lii 
 
 Sectioh 
 Morgan v. Purnell (4 Hawks, 95) i. 540 
 
 V. State (11 Ala. 289) i. 314, 315 
 
 Morrell v. Morrell (1 Barb. 318) ii. 99, 
 256, 334, 847, 604, 605, 606 
 
 V. Morrell (3 Barb. 286) ii. 99, 
 
 253, 345 
 Morrill v. Morrill (2 Barb. 480) ii. 421, 
 
 469 
 Morris, Commonwealth v. (1 
 Cush. 891) i. 266, 471, 473, 476, 478 
 
 V. Dareis (3 Car. & P. 215) i. 448 
 
 V. Daveis 5 CI. & F. 163) i. 447, 
 
 448 
 
 V. Low (4 Stew. & P. 123) ii. 528 
 
 V. Martin (1 Stra. 647) i. 573 
 
 V. Miller (4 Bur. 2057 ; 1 W. 
 
 BI. 632) i. 441, 442, 445, 490, 491 
 
 V. Morris (20 Ala. 168) i. 718, 825; 
 
 ii. 268, 326 
 
 V. Morris (14 Cal. 76) i. 717, 718, 
 
 719 
 
 V. Morris (9 Printed Cases, 
 
 91) i. 333 
 
 V. Morris (Wright, 680) i. 191, 
 
 215 
 
 V. Palmer (39 N. H. 123) ii. 389, 
 
 898 
 
 V. Webber (2 Leon. 169; 
 
 Sir F. Moore, 225) i. 118 ; ii. 694, 754 
 Morrison v. Dobson (8 Scotch 
 Sess. Cas. 3d ser. 347) i. 253, 253 b, 
 
 265 
 
 V. Holt (42 N. H. 478) ii. 889 
 
 V. Morrison (20 Cal. 431) i. 777 ; 
 
 U. 673 
 Morse v. Morse (2 Hag. Ec. 608) 
 
 ii. 629 
 
 V. Morse (25 Ind. 156) ii. 455 
 
 V. "Welton (6 Conn. 547} ii. 528 
 
 Mortimer v. Mortimer (2 Hag. 
 Con. 310) i. 684, 806 ; ii. 103, 284, 
 241, 242, 245, 342 
 Mortimore o. Wright (9 Lond. 
 
 Law Jour. 158) ii. 628 
 
 Morton v. Morton (4 Cush. 518) ii. 202, 
 
 376, 499 
 
 V. Morton (33 Misso. 614) ii. 398 
 
 , Rex V. (Russ. & Ry. 19) i. 451 
 
 K.Withens (Skin. 348) 1.554 
 
 Moseley, Rex v. (5 East, 224) ii. 529 
 Moses V. Fogartie (2 Hill, S. C. 
 335) i. 586 
 
 V. State (11 Humph. 282) i. 314 
 
 Moss V. Davidson (1 Sm. & M. 
 112) i, 209 
 
 V. McCall (12 Ala. 630) i. 640 
 
 V. Moss (2 Ire. 55) i. 191, 707, 
 
 779, 825 ; ii. 90, 227, 835 
 
 Mosser v. Mosser (29 Ala. 313) i. 793; 
 
 ii. 282, 346, 367, 613, 620, 646 
 
 Mostyn v. Fabrigas (1 Cowp. 
 
 174) i. 529 
 
NA3 
 
 INDEX TO THE CASES CITED. 
 
 NIX 
 
 Section 
 Motley V. Motley (31 Maine, 
 
 490) i. 827, 834, 835 
 
 Mott V. Corastock (8 Wend. 544) i. 660, 
 619, 620 
 Motteram u. Motteram (3 Bulst. 
 
 264) ■ ii. 732 
 
 Moulton V. Moulton (2 Barb. Ch. 
 
 309) i. 764 ; ii. 107 
 
 V. Moulton (13 Maine. 110) ii. 642 
 
 Mount o. Mount (2 McCarter, 
 
 162) ii. 632 
 
 Mount Holly v. Andover (11 Vt. 
 
 226) i. 105, 205, 219, 245 
 
 Moyler v. Moyler (11 Ala. 620) i. 71, 
 
 718, 719, 722, 726, 748 ; il. 250, 282 
 Muckenburg v. Muokenburg (29 
 
 Ind. 139) ii. 237 a 
 
 Mudway v. Croft (3 Curt. Ec. 
 
 671) i. 126 
 
 Muirhead v. Muirhead (23 Missis. 
 
 97) i. 542 
 
 Mulford V. Young (6 Ohio, 294) i. 557 
 Mullen V. Morris (2 Barr, 85) 1. 424 
 MuUer v. Hilton (13 La. An. 1) i. 682, 
 
 774 
 Mulock V. Mulock T[l Edw. Ch. 
 
 14) ii. 258, 327, 495, 614, 624 
 
 Munro a. Saunders (6 Bligh, 
 
 468) i. 355 
 
 Murgatroyd v. Watkinson (T. 
 
 Jones, 191) i. 316 
 
 Murphy, State v. (6 Ala. 765) i. 214, 
 279, 283 
 Murray v. Barlee (3 Myl. & 
 
 Keen, 209) ii. 438 
 , Commonwealth v. (4 Binn. 
 
 487) ii. 528 
 V. MoLauchlan (1 Scotch 
 
 Sess. Cas. n. s. 294) i. 810 
 
 Murtagh, Commonwealth v. (1 
 
 Ashm. 272) i. 497, 500 
 
 Myatt ... Myatt (44 lU. 473) 
 
 i. 436, 454 
 Mycock V. Mycock (Law Rep. 
 
 2 P. & M. 98) ii. 227, 328 
 
 Myers v. Myers (2 McCord Ch. 
 
 214) ii. 528 
 
 Mytton V. Holyoake (Macpher- 
 
 son on Infants, 149) ii. 529 
 
 V. Mytton (8 Hag. Ec. 657) 
 
 ii. 450, 457, 465 
 
 N. t. M. (2 Robertson, 625) i. 335 ; 
 ii. 588 a 
 N. V. N. (3 Swab. & T. 234) u. 282 a 
 Nace V. Boyer (6 Casey, 99) i. 194 
 Nagle V. Nagle (12 Misso 53) ii. 95 
 Nalle V. Fenwick (4 Rand. 585) i. 516 
 Nary v. Braley (41 Vt. 180) ii. 397 
 Nash V. Nash (1 Hag. Con. 140) 
 
 1. 777, 806 ; ii. 234, 628 
 
 Section 
 Nash, State v. (8 Ire. 35) ii. 280 
 
 Nations v. Johnson (24 How. 
 
 U.S. 195) ii. 170 a 
 
 Naulet w. Dubois (6 La. An. 
 
 403) i. 798 
 Neagle v. Neagle (12 Misso. 53) ii. 87 
 Neal V. Farmer (9 Ga. 555) i. 154 
 V. Her Husband (1 La. An. 
 
 315) ii. 128 
 
 Neale v. Caldwell (3 Stew. 134) ii. 744 
 Neeld v. Neeld (4 Hag. Ec, 263) 
 
 i. 717, 719, 727, 734, 758 ; ii. 38 
 Neil V. Johnson (11 Ala. 615) ii. 369 
 
 o. Neil (4 Hag. Ec. 273) 
 
 ii. 430, 450, 451, 457, 489 
 Nelson v. Bridport (8 Beav. 527) i. 429 
 
 V. Evans (1 Dev. 9) ii. 639 
 
 Newbiggin u. Pillans (2 Bay, 
 
 162) i. 584 
 
 Newbury v. Brunswick (2 Vt. 
 
 151) i. 279, 283, 390 
 
 Newburyport ,v. Boothbay (9 
 
 Mass. 414) i. 443 
 
 Newcomb v. Newcomb (12 Gray, 
 
 28) ii. 499, 500 
 
 Newell V. Newell (9 Paige, 25) 
 
 i. 332; ii. 594,594 a 
 Newham v. Raithby (1 Phillira. 
 
 315) i. 465 
 
 Newhouse v. Commonwealth (5 
 
 Whart. 82) ii. 488 
 
 Newman v. Jenkins (10 Pick. 
 
 515) i. 452 
 
 y. Newman (Law Rep. 
 
 2P. &M. 57) ii. 103, 105 a 
 
 Newport «. Cook (2 Ashm. 332) 
 
 ii. 528 
 Newsome v. Bowyer (3 P. Wms. 
 
 37) 1. 588 
 V. Newsome (Law Rep. 2 
 
 P. & M. 306 ; 1 Eng. Rep. 241) 
 
 ii. 37, 45, 57, 62 
 Newton v. Cocke (5 Eng. 169) i. 414 
 , Reg. </. (2 Moody & R. 
 
 503) i. 497, 500, 530, 582 
 
 NichoUs V. Danvers (2 Vern. 
 
 671) ii. 353 
 
 Nichols V. Nichols (31 Vt. 328) i. 712 
 
 V. Palmer (5 Day, 47) i. 642 
 
 V. Stewart (15 Texas, 226) 
 
 i. 658 
 Nickols V. Giles (2 Root, 461) ii. 546 
 Nightingale v. Withington (15 
 
 Mass. 272) ii. 528 
 
 Nikirk v. Nikirk (3 Met. Ky. 
 
 432) ii. 366 
 
 Niles V. Sprague (18 Iowa, 198) 
 
 i. 468, 474 
 Nixon V. Brown (4 Blackf. 157) 
 
 i. 494, 523 
 
 V. The Office (Milward, 
 
 390) ii. 158 
 
 liii 
 
OLA 
 
 INDEX TO THE CASES CITED. 
 
 OZM 
 
 Section 
 Noble V. Noble (Law Eep. 1 P. 
 
 & M. 691) ii. 82, 743 
 
 Noel V. Ewing (9 Ind. 37) i. 9 ; li. 199 
 Nogees v. Nogees (7 Texas, 538) 
 
 i. 71, 724, 726 ; ii. 58, 72, 651 
 Nokes V. Mil ward (2 Add. Ec. 
 386) 1. 371, 465, 478, 533 ; ii. 265, 
 
 294 
 
 V. Nokes [(3 Swab. & T. 
 
 529) ii. 452, 494 
 
 Norcross, Commonwealth v. (9 
 Mass. 492) i. 442, 479, 494 
 
 V. Rodgers (30 Vt. 588) 
 
 i. 582, 614 
 Norfolk's Case, Duke of (13 
 
 Howell St. Tr. 1334) i. 29 
 
 Norfolk V. Germaine (12 Howell 
 
 St. Tr. 929) ii. 625 
 
 Norman v. Heist (5 Watts & S. 
 
 171) i. 678, 683 
 
 Norris v. Norris (27 Ala. 519) ii. 503 
 North V. North (1 Barb. Ch. 241) 
 i. 71, 74, 508 ; ii. 398, 402, 40% 421 
 
 V. North (5 Mass. 320) ii. 340 
 
 Northey v. Cock (2 Add. Ec. 
 
 294) i. 483 
 
 Northfield v. Plymouth (20 Vt. 
 
 582) i. 279, 283, 453, 469, 479, 504, 
 508, 513 
 
 V. Vershire (33 Vt. 110) i. 442 
 
 Norton v. Fazau (1 Bos. & P. 
 
 226) i. 573 
 
 V. Norton (2 Aikens, 188) i. 332 
 
 V. Rhodes (18 Barb. 100) 
 
 i. 566, 623 
 
 V. Seton (3 PhUlim. 147) 
 
 i. 53, 113, 300, 331; ii. 580, 581, 582, 
 585, 596, 598, 749 
 Norwood's Case (1 East, P. C. 
 
 337) i. 497 
 
 Nott V. Nott (Law Rep. 1 P. & 
 
 M. 251) i. 805 a, 8056 
 
 Noverre v. Noverre (1 Robertson, 
 
 428) ii. 241, 242, 245 
 
 Nurse v. Craig (5 B. & P. 148) ii. 401 
 Nutt, Commonwealth v. (1 
 
 Browne, Pa. 143) ii. 529 
 
 Nutting V. Herbert (37 N. H. 
 
 346) ii. 259 
 
 Oakes v. Hill (14 Pick. 442) i. 470 
 O'Bryan v. O'Bryan (13 Misso. 
 
 16) ii. 233, 258, 644 
 
 Odom V. Odom (36 Ga. 286) 
 
 i. 717 ; ii. 38, 44, 57 
 OflScer V. Young (5 Yerg. 320) i. 671 
 O'Gara v. Eisenlohr (38 N. Y. 
 
 296) i. 507 a 
 
 Ohio V. Connoway (Tappan, 58) 
 
 i. 777 
 Gland's Case (5 Co. 116) u. 692 
 
 liv 
 
 Section 
 Oldham v. Henderson (5 Dana, 
 
 254) ii- 712 
 
 V. Oldham (7 Ves. 410) ii. 506 
 
 Olin V. Hungerford (10 Ohio, 
 
 268) 1. 71 ; ii. 498, 501, 751 
 
 Oliver w.Heathcote (2 Add. Ec. 
 
 35) ii- 281 
 V. Oliver (5 Ala. 75) ii. 380 
 
 V. Oliver (1 Hag. Con. 
 
 361) i. 722, 729, 730, 734, 754, 804 
 
 V. OUver (20 Misso. 261) 
 
 ii. 256, 743 a 
 
 V. Sale (Quincy, 29) i. 155, 279 
 
 Olmstead, People v. (27 Barb. 9) 
 
 ii. 546, 548 
 Opinion of the Judges (5 Met. 
 
 587) ii. 119 
 
 Opinion of the Supreme Court 
 (16 Maine, 479) i. 669, 678, 684 ; 
 ii. 199 
 Opinion of the Supreme Court 
 
 (16 Maine, 481) ii. 230 
 
 Orde V. Murray (8 Scotch Sess. 
 
 Cas. N. s. 535) ii. 148 
 
 Orgill, Reg. u. (9 Car. & P. 80) 
 
 i. 212, 542 
 Orme v. Orme (2 Add. Ec. 382) 
 
 i. 738, 771, 777, 778, 778 o 
 Ormsby v. Ormsby (1 Philad. 
 
 578) ii. 498 
 
 Orr V. Orr (8 Bush, 156) ii. 380 
 
 Orrok v. Orrok (1 Mass. 341) 
 
 ii. 346, 472, 498 
 Ortega, United States v. (4 
 
 Wash. C. C. 531) i. 426, 427 
 
 Osborn v. Allen (2 Dutcher, 388) ii. 527 
 Osborne v. Moss (7 Johns. 161) i. 173 
 
 , Reg. V. (Car. & M. 622) ii. 659 
 
 Osgood V. Osgood (2 Paige, 621) 
 
 fii. 395, 408, 409, 489 
 Ott V. Soulard (9 Misso. 573) i. 417 
 Otway V. Otway (2 Phillim. 95) 
 
 i. 726, 730 
 
 V. Otway (2 Phillim. 109) 
 
 ii. 375, 429, 445, 457, 459, 
 462, 463, 465 
 Owen V. Boyle (15 Maine, 147) 
 
 i. 409, 412, 418, 426 
 
 V. Hudson River Railroad 
 
 (2 Bosw. 374) ii. 75 
 
 V. Owen (4 Hag. Ec. 261) 
 
 ii. 244, 245 
 
 V. White (5 Port. 435) ii. 528 
 
 Owens V. Ranstead (22 III. 161) i. 84 
 wings V. Hull (9 Pet. 607) i. 423 
 Oxenden v. Oxenden (1 Gilb. 
 
 Ch. 1 ; 2 Vern. 493) ii. 353 
 
 Oxenham v. Gayre (Bacon Ab. 
 
 tit. Mar. & Div.) i. 314, 317 
 
 Ozard v. Darnford (1 Selw. N. P. 
 
 11th ed. 294) i. 670 
 
 Ozmore v. Ozmore (41 Ga. 46) ii. 53 
 
PAT 
 
 INDEX TO THE CASES CITED, 
 
 PER 
 
 Section 
 Packard v. Hill (2 "Wend. 411) i. 424 
 Paddock v. Wells (2 Barb. Ch. 
 
 331) i. 314 
 
 Paffj;. Paff (Hopkins, 584) ii. 428, 489 
 Page V. Dennison (1 Grant, 377 ; 
 
 5 Casey, 420) i. 187, 447, 448, 548 
 V. Estes (19 Pick. 269) ii. 522, 
 
 715, 732, 735 
 Paine, State v. (4 Humph. 523) 
 
 ii. 529, 546 
 Painter v. Weatherford (1 Greene, 
 
 Iowa, 97) i. 586 
 
 Palmer u. Crook (7 Gray, 418) 
 
 i. 626 ; ii. 661 
 
 V. Palmer (7 C. B. Greene, 
 
 88) i. 792; ii. 284 a 
 
 V. Palmer (1 Paige, 276) 
 
 i. 761 ; ii. 235, 377 
 
 V. Palmer (1 Swab. & T. 
 
 551) ii. 131 
 
 V. Palmer (2 Swab. & T. 
 
 61) ii. 64 
 
 V. Palmer (4 Swab. & T. 
 
 143) ii. 743 a 
 
 Parham v. Parham (6 Humph. 
 
 287) i. 655 
 
 Parish v. Parish (9 Ohio State, 
 
 534) ii. 753 a, 753 c 
 
 Park V. Baron (20 Ga. 702) i. 125, 
 283, 306 ; ii. 704 
 Parker's Appeal (8 Wright, Pa. 
 
 309) i. 820 
 
 Parker v. Lambert (31 Ala. 89) 
 
 1.640 
 
 V. Parker (2 Lee, 382) i. 130, 
 
 136 ; ii. 563, 564 
 Parkhurst v. McGraw (24 Missis. 
 
 134) ii. 572 
 
 Parkinson v. Parkinson (Law 
 
 Eep. 2 P. & ]VI. 25) i. 8056 
 
 Parnell v, Parnell (2 Hag. Con. 
 169; 2 PhiUim. 158; 1 Eng. 
 Ec. 220) i. 130 ; ii. 44, 305, 307 
 
 Parsons v. Parsons (9 N. H. 309) 
 
 i. 24,71,582; ii. 351, 356, 376, 
 398, 441, 502 
 Parton v. Hervey (1 Gray, 119) 
 
 i. 144, 145, 283, 285, 294 
 Pascal V. Jones (41 Ga. 220) ii. 546 
 .Pastoret v. Pastoret (6 Mass. 
 
 276) ii. 334, 341 
 
 Patchett V. Holgate (3 Eng. L. 
 
 6 Eq. 100 [ 15 Jur. 308) i. 447, 547 
 Paterson v. Paterson (7 Bell Ap. 
 
 Cas. 337 ; 12 Eng. El. & Eq. 
 
 19) i. 722, 723 
 
 V. Paterson (1 Halst. Ch. 
 
 389) ii. 398, 461 
 
 Patrick v. Patrick (3 PhiUim. 
 
 496) i. 228 
 
 Patrickson v. Patrickson (Law 
 
 Bep. 1 P. & M. 86) ii. 271o 
 
 Section 
 Patterson v. Gaines (6 How. U. 
 S. 550) i. 105, 299, 355, 494, 496, 
 497 ; ii. 289, 639, 754 
 
 V. Patterson (Law Rep. 2 P. 
 
 & M. 192) ii. 439, 743 
 
 , State V. (2 Ire. 346) i. 228, 356, 
 
 425, 627 
 Patton V. Massey (2 HiU, S. C. 
 475) ii. 744 
 
 V. Philadelphia (1 La. An. 
 
 98) i. 218, 253, 254, 279, 302 
 
 Paul, Ex parte (7 Hill, N. Y. 56) 
 
 i. 809 
 
 V. Erazier (3 Mass. 71) ii. 75 
 
 Pawlett V. Clark (9 Cranch, 292) i. 68 
 Pawhng V. Bu:d ( 13 Johns. 192) 
 
 ii. 128, 141, 144 
 
 V. Willson (13 Johns. 192) 
 
 ii. 556 
 Payne v. Payne (4 Humph. 500) 
 
 i. 750; ii. 457, 474, 510 
 
 V. Smith (20 Ga. 654) i. 209 
 
 Payson v. Pay sou (34 N. H. 518) 
 
 i. 773 ; ii. 173, 682 
 Peabody v. Peabody (104 Mass. 
 
 195) i. 817 a 
 
 Peacock v. Peacock (1 Swab. & 
 
 T. 183) ii. 47, 67 
 
 Peak V. Ligon (10 Yerg. 469) i. 404 
 Pearman v. Pearman (1 Swab. 
 
 &T. 601) i. 754; ii. 82 
 
 Pearne v. Lisle (Amb. 75) ii. 505 
 
 Pearson v. Darrington (32 Ala. 
 227) i. 578; ii. 133, 421 
 
 V. Howey (6 Halst. 12) i. 279, 
 
 283, 285, 289, 291, 443 
 Pease v. Naylor (5 T. E. 80) ii. 760 
 Peaslee v. McLoon (16 Gray, 
 
 488) ii. 283 
 
 Peat's Case (2 Lewin, 288) i. 243 
 
 Peck V. Hibbard (26 Vt. 698) i. 409, 
 
 418 
 Peckford v. Peckford (1 Paige, 
 
 274) ii. 88, 457, 472, 495 
 
 Peeples v. Peeples (19 lU. 269) ii. 313 
 Pegram v. Isabell (2 Hen. & M. 
 
 193) i. 542 
 
 Pellew V. Pellew (1 Swab. & T. 
 
 553) ii. 108 
 
 Peltier v. Peltier (Harring. Mich. 
 
 19) ii. 302, 356 
 
 Pemberton v. Pemberton (2 Notes 
 
 Cas. 17) ii. 429, 448 
 
 Pence v. Pence (6 B. Monr. 496) 
 
 ii. 260, 379, 514 
 Pennycook v. Grinton (Ferg. 
 
 Consist. Law Eep. 29) i. 254, 259 
 Penson, Rex v. (5 Car. & P. 412) 
 
 i. 297 
 Peppinger v. Low (1 Halst. 384) 
 
 i. 502 
 Peralta, People v. (4 Cal. 175) ii. 122 
 
 Iv 
 
PHI 
 
 INDEX TO THE CASES CITED. 
 
 POL 
 
 Section 
 Perishalt). Squire (1 Dick. 31) ii. 385 
 Perkins, Ex parte (18 Cal. 60) 
 
 u. 421, 498 
 
 V. Eaton (3 N. H. 152) ii. 75 
 
 V. Perkins (6 Mass. 69) ii. 51 
 
 V. Perkins (2 Paige, 621) ii. 395 
 
 V. Potts (8 La. An. 14) i. 774 
 
 Perrin u. Perrin (1 Add. Ec. 1) 
 
 i. 179, 804 ; ii. 635 
 Perry v. Block (1 Misso. 484) i. 463 
 
 V. Meddowcroft (10 Beav. 
 
 122) • ii. 766, 761, 762 
 
 V. Perry (1 Barb. Ch. 516) 
 
 i. 736, 761 
 
 V. Perry (2 Barb. Ch. 285) 
 
 ii. 236, 410 
 
 V. Perry (2 Barb. Ch. 311) 
 
 i. 761 ; ii. 377 
 
 V. Peny (2 Paige, 501) i. 71, 73, 
 
 105, 166, 178, 323, 717, 754, 761; 
 u. 291 
 Perryman, Commonwealth v. (2 
 
 Leigh, 717) i. 314, 319 
 
 Person w. Person (6 Humph. 148) 
 
 ii. 210 
 Persons v. Persons (7 Humph. 
 
 183) ii. 439 
 
 Perth Peerage Case (2 H. L. Cas. 
 
 865) i. 478 
 
 Pertreis v. Tondear (1 Hag. Con. 
 
 136) ii. 309 
 
 Peter v. Wright (6 Ind. 183) i. 209 
 Petrie v. People (40 111. 334) ii. 397, 
 
 498 
 Pettingill v. McGregor (12 N. H. 
 
 179) i. 438, 443 
 
 Pettit, Matter of (2 Paige, 174) 
 
 ii. 159 
 Pettitt V. Pettitt (4 Humph. 191) i. 130 
 Pettyjohn v. Pettyjohn (1 
 
 Houston, 332) i. 496 
 
 Phalen v. Virginia (8 How. U. S. 
 
 163) i. 667 
 
 Phelan's Case (6 N. Y. City Hall 
 
 Rec. 91) i. 442, 446, 499 
 
 Phelan v. Phelan (12 Fla. 449) ii. 406, 
 
 427, 665 a, 684 c 
 
 Phelps V. Baker (60 Barb. 107) ii. 144 
 
 V. Phelps (7 Paige, 150) ii. 260, 
 
 311 
 
 , State V. (2 Tyler, 374) ii. 723 
 
 V. Townsend (8 Pick. 392) 
 
 ii. 528 
 Philbrick v. Philbrick (27 Vt. 
 786) ii. 296 
 
 V. Spangler (15 La. An. 46) 
 
 i. 436, 541 
 Phillips u. AUen (2 Allen, 453) 
 
 i. 186, 447, 448, 548 
 
 V. Gregg (10 Watts, 158) 
 
 i. 355, 523, 535 
 V. Kelly (29 Ala. 628) u. 661 
 
 M 
 
 Section 
 PhiUips V. PhilUps (4 Blackf. 131) 
 
 ii. 38, 56 
 
 V. Phillips (1 Robertson, 
 
 144 ■ 10 Jur. 829 ; 4 Notes Cas. 
 523) 1.63; ii. 5, 6, 7, 8, 9, 10, 14, 15, 
 16, 21, 22, 26, 88, 253, 637 
 
 V. State (9 Humph. 246) 
 
 ii. 659 
 Physick's Estate (2 Brewster, 
 
 179) i- 436 
 
 Piatt V. Piatt (9 Ohio, 87) ii. 441, 498, 
 
 751 
 Picard v. Bailey (6 Eost. N. H. ' 
 
 152) i- 418 
 
 Pickering v. Eisk (6 Vt. 102) i. 533 
 Picket V. Johns (1 Dev. Eq. 123) 
 
 i. 651 
 Picton, Rex v. (30 Howell St. Tr. 
 491) i- 428 
 
 , Rex V. (30 Howell St. Tr. 
 
 509) i- 529 
 
 Pidge V. Pidge (3 Met. 257) i. 722, 
 783, 793, 795 
 Pidgin V. Cram (8 N. H. 350) 
 
 i. 579 ; ii. 528 
 Pierce v. Bumham (4 Met. 303) 
 
 ii. 737 
 
 V. Pierce (3 Pick. 299) ii. 5, 9 
 
 Piers V. Piers (2 H. L. Cas. 331) 
 
 i. 13, 251, 294, 451, 457, 458, 471, 
 509 
 Pillar V. Pillar (22 Wis. 658) i. 718 
 Pillow, People v. (1 Sandf. 672) 
 
 ii. 549 
 Pillsbury V. Dugan (9 Ohio, 118) 
 
 ii. 164 
 Pinckard v. Pinckard (22 Ga. 
 31) ii. 384, 445 
 
 V. Pinckard (23 Ga. 286) 
 
 ii. 421, 497, 498 
 Pinckston v. Brown (3 Jones, Eq. 
 
 494) i. 214 
 
 Pinkard v. Pinkard (14 Texas, 
 
 356) i. 726, 784 ; u. 259 
 
 Pinkney v. Pinkney (4 Greene, 
 
 Iowa, 324) ii. 314, 685 
 
 Pinkston v. McLemore (31 Ala. 
 
 308) ^ i. 640 
 
 Pirate v. Dalby (1 Dal. 167) i. 154 
 Pitt V. Smith (3 Camp. 33) i. 131 
 
 Plaster v. Plaster (47 111. 290) 
 
 ii. 474, 552 a 
 Piatt w. Powles (2M. & S. 65) i. 152 
 Plumer v. Plumer (4 Swab. & T. 
 
 257) ii. 82, 253 
 
 Plummer v. Brandon (5 Ire. Eq. 
 190) ii. 123 
 
 V. Plummer (37 Missis. 185) 
 
 ii. 314, 753 e 
 
 V. Webb (Ware, 75) ii. 528 
 
 Pollack V. Pollack (2 Swab. & T. 
 648) ii. 32 
 
POW 
 
 INDEX TO THE CASES CITED. 
 
 PUT 
 
 Seotioit 
 Pollard V. Wy bourn (1 Hag. Ec. 
 725) 1. 337 ; ii. 80, 582, 585, 595, 
 596, 598 
 Polydore «. Prince (Ware, 402) 
 
 i. 405 
 Pomeroy v. Pomeroy (1 Johns. 
 Ch. 606) ii. 327 
 
 V. Wells (8 Paige, 406) i. 565 ; 
 
 ii. 141, 144, 356 
 Pomfret v. Pomfret (2 Phillim. 
 
 40) ii. 468 
 
 Ponder v. Graham (4 Fla. 28) 
 
 i. 800, 537, 666, 686 
 
 Ponsford v. Johnson (2 Blatoh. 
 
 51) i. 306, 306 a, 374; ii. 701, 
 
 702, 703 
 
 Pool V. Everton (5 Jones N. C. 
 
 241) i. 620 
 
 V. Pool (2 Phillim. 119) ii. 381 
 
 V. Pratt (1 D. Chip. 252) 
 
 i. 143, 144, 293 
 
 , State V. (2 Ind. 227) i. 346 
 
 Poor V. Poor (8 N. H. 307) i. 729, 754, 
 
 764, 767, 800 
 
 Popkin V. Popkin (1 Hag. Ec. 
 
 765, note) i. 785; ii. 88, 47, 52, 
 
 70, 340, 632 
 
 Porritt V. Porritt (16 Mich. 140) 
 
 i. 813, 813 a 
 
 V. Porritt (18 Mich. 420) 
 
 i. 803 
 Porter v. Bobb (25 Misso. 36) i. 620 
 
 , People V. (1 Duer, 709) 
 
 ii. 529, 549, 551 
 
 V. Porter (41 Missis. 116) ii. 406 
 
 V. Porter (8 Swab. & T. 
 
 596) ii. 605, 607 
 
 Portland v. Prodgers (2 Vern. 
 
 104) i. 588 
 
 Portsmouth v. Portsmouth (3 
 Add. Ec. 68) ii. 402, 409 
 
 V. Portsmouth (1 Hag. Ec. 
 
 355; 3 Eng. Ec. 154) i. 124, 184, 
 166, 195, 211 ; ii. 305, 307, 565 
 Portynton v. Steinbergh (10 CI. 
 
 & F. 841) i. 254 
 
 Postens V. jPostens (3 Watts & S. 
 
 127) ii. 753 e 
 
 Poteet, State v. (8 Ire. 23) ii. 613 
 
 Potier V. Barclay (15 Ala. 489) 
 
 i. 228, 629 ; ii. 780 
 Poultney v. Eairharen (Brayt. 
 
 185) i. 446,494 
 
 PoTey, Reg. u. (14 Eng. L. & Eq. 
 549; 6 Cox C. C.83; 1 Dears. 
 C. C. 32) i. 530 
 
 Powell V. Cobb (3 Jones Eq. 456) 
 
 i. 193, 194 
 
 V. Powell (27 Missis. 783) 
 
 ii. 563, 702 
 
 V. Powell (29 Vt. 148) i. 789 
 
 V. Weeks (ISToy, 108) ii. 730 
 
 SEOTIOIf 
 
 Powelson v. Powelson (22 Cal. 
 
 358) i. 717, 733 
 
 Power V. Power (4 Swab. & T. 
 
 173) i. 784 
 
 Praraagiori v. Pramagiori (7 Rob. 
 
 N. Y. 302) ii. 605 
 
 Prather v. Clarke (1 Tread. 453) 
 
 ii. 738 
 
 V. Prather (4De3. 33) ii. 302, 355, 
 
 359, 861, 472, 501, 508, 531 
 Pratt V. Bacon (10 Pick. 128) i. 70 
 Prentiss v. Tudoi* (1 Hag. Con. 
 
 136) i. 395 
 
 Prescott V. Fisher (22 111. 890) i. 597 
 
 V. Prescott (59 Maine, 146) 
 
 ii. 497 
 Pressley v. McDonald (1 Rich. 27) 
 
 i. 582, 607 
 Preston v. Bowers (13 Ohio State, 
 
 1) i. 626 
 
 Prevost, Succession of (4 La. An. 
 
 847) i. 218, 279 
 
 Price, In re (2 Post & F. 268) 
 
 i. 755, 786 
 
 V. Clark (3 Hag. Ec. 265) 
 
 i. 588 ; ii. 637 
 
 V. Price (10 Ohio State, 316) 
 
 ii. 260 
 
 V. Sessions (3 How. U. S. 
 
 624) i. 675 ; ii. 714 
 
 Prichard v. Prichard (3 Swab. & 
 
 T. 523) i. 754, 762 a 
 
 Priestly V. Hughes (11 East, 1) i. 293 
 Prince's Case, The (8 Co. 28 a) 
 
 1.421 
 Prince V. Prince (1 Rich. Eq. 
 282) ii. 269, 355, 358, 369,446, 
 
 457 
 Proctor V. Prootor (2 Hag. Con. 
 
 292) i. 53 ; ii. 76, 80 
 
 Prole V. Soady (Law Rep. 3 Ch. 
 
 Ap. 220) ii. 82, 714, 743 
 
 Prothro v. Smith (6 Rich. Eq. 
 
 324) ii. 75 
 
 Prudham v. Phillips (cited Amb. 
 763; 1 Harg. Law Tracts, 
 456 ; 2 Burn Ec, Law, 495) i. 56 ; 
 ii. 754, 760, 763 
 Pugsley V. Pugsley (9 Paige, 589) 
 
 ii. 338 
 PuUiam v. PuUiam (1 Freeman, 
 
 Missis. 348) i. 751 
 
 PurceU V. Purcell (3 Edw. Ch. 
 194) ii. 895 
 
 V. Purcell (4 Hen. & Munf. 
 
 507) i. 513 ; ii. 268, 855, 358, 
 
 361, 862, 886, 398, 427, 461, 
 
 498 
 
 Putnam, Commonwealth v. (1 
 
 Pick. 186) ii. 700 
 
 V. Johnson (10 Mass. 488) 
 
 ii. 123 
 
 Ivii 
 
RED 
 
 INDEX TO THE CASES CITED. 
 
 EHA 
 
 Section 
 Putnam v. Putnam (8 Pick. 433) 
 
 i. 362, 871 ; ii. 701 
 Pyne v. Pyne (1 Swab & T. 178) 
 
 ii. 282 
 
 Quarles v. Quarles (19 Ala. 863) 
 
 ii. 47, 326 
 Questel v. Questel (Wright, 491 
 
 and 492) ii. 38, 50, 59, 354, 504 
 
 Quincy v. Quincy (10 N. H. 272) 
 
 i. 71; ii.-33, 37, 38,40,43, 
 
 56, 398 
 
 Quinnt). Quimi (16 Vt. 426) ii. 639 
 
 E. V. E. (20 Wis. 331) ii. 744 
 
 Eamsay v. McCanley (2 Texas, 
 
 189) i. 409, 412 
 
 Eandall's Case (5 N. Y, City 
 
 Hall Eecorder, 141) i. 226 
 
 EandaU v. Eaudall (4 Greenl. 
 
 326) ii. 639 
 
 V. Eandall (7 Mass. 502) ii. 811 
 
 Eape V. Heaton (9 Wis. 828) 
 
 i. 409, 411 
 Eatcliff w. Eatcliff (1 Swab. & T. 
 
 467) ii. 34, 82, 171, 239, 270, 477 
 
 V. Wales (1 Hill, W. Y. 68) 
 
 ii. 728, 724 
 Eathbone u. Eathbone (4 Pick. 
 
 89) i. 84 
 
 Eathbun v. Eathbun (40 How. 
 
 Pr. 328) ii. 306 
 
 Eawdon v. Eawdon (28 Ala. 565) 
 
 i. 105, 124,136; u. 105 
 Eawlins v. Buttel (1 Houston, 
 
 224) i. 628 
 
 Kay V. Sherwood (1 Curt. Ec. 
 
 173 ; 1 E. P. Moore, 358) i. 110, 
 816 ; ii. 309 
 V. Sherwood (1 Curt. Ec. 
 
 193 ; 1 E. P. Moore, 353) i. 109, 
 111, 119, 298 
 Eaynham v. Canton (3 Pick. 293) 
 
 ■ i. 424, 425, 439, 524 
 Eead v. Bertrand (4 Wash. C. C. 
 
 514) ii. 122 
 
 V. Brookman (3 T. E. 151) i. 516 
 
 V. Jewson (stated 4 T. E. 
 
 862) i. 581 
 V. Legard (15 Jur. 494; 4 
 
 Eng. L. & Eq. 523; 6 Exch. 
 
 636) i. 554, 557, 565, 570 
 
 V. Eead (1 Ch. Cas. 115) 
 
 ii. 506 
 Beading, Eex v. (Cas. temp. 
 
 Hardw. 79) i. 447, 547 
 
 Eeavis v. Eeavis (1 Scam. 242) 
 
 ii. 256, 365, 379, 497 
 EeddaU v. Leddiard (3 PhiUim. 
 
 256) i. 294 
 
 Iviii 
 
 Section 
 Eeddick v. Jones (6 Ire. 107) i. 402 
 Eeed v. Beazley (1 Blackf. 97) i. 644 
 
 V. Hudson (18 Ala. 570) i. 524 
 
 II. Passer (Peake, 231 ; 1 
 
 Esp. 213) i- 484, 465 
 
 V. Eeed (4 Nev. 395) i. 764 
 
 V. Eeed (Wright, 224) i. 784 
 
 Eeel V. Elder (12 Smith, Pa. 308) 
 
 ii. 128, 168 a, 170 c, 177, 753 d 
 Eeemie v. Eeemie (4 Mass. 586) 
 
 u. 628, 689 
 
 Eees V. Eees (23 Ala. 785) i. 727 ; 
 
 u. 472, •657 
 
 V. Eees (8 PhiUim. 387) 
 
 U. 334, 424, 430, 445, 447, 450, 
 457, 459, 460, 494 
 
 V. Waters (9 Watts, 90) i. 582, 
 
 606 ; ii. 351, 356 
 Eeese v. Chilton (26 Misso. 598) 
 
 i. 557, 568, 620 
 
 V. Harris (27 Ala. 301) i. 413 
 
 V. Eeese (23 Ala. 785) ,-;ii. 52, 
 
 255,651 
 Eeeve v. Conyngham (2 Car. & 
 
 K. 444) i. 554 
 
 Beeves v. Beeves (54 111. 882) i. 299 
 
 V. Beeves (2 PhiUim. 125) 
 
 i. 179,804; ii. 5,9, 23, 88 
 
 V. Beeves (3 Swab. & T. 
 
 139) i. 746 
 
 Eeichart v. Castator (5 Binn. 
 
 109) i. 173 
 
 Eeid V. Laing (1 Shaw Ap. Cas. 
 440) i. 253 
 
 V. Eeid (6 C. E. Green, 331) 
 
 i. 778 a 
 Eeinhardt, State u. (68 N. C. 
 
 547) i. 308 a 
 
 Eeist V. Heilbrenner (11 S. & E. 
 
 131) i. 84 
 
 Eeneaux v. Teakle (8 Exch. 680 ; 
 
 20 Eng. L. & Eq. 345) i. 556, 560 
 Eennick v. Chloe (7 Misso. 197) i. 411 
 
 V. Eicklin (3 B. Monr. 166) 
 
 i. 618 
 Beunington v. Cole (Noy, 29) 
 
 i. 112, 116 
 Benwick v. Benwick (10 Paige, 
 
 420) ii. 712, 714, 733 
 
 Eepublic v. Skidmore (2 Texas, 
 
 261) ii. 128 
 
 Bevel V. Fox (2 Ves. Sen. 269) 
 
 i. 437, 513 
 Eeynolds v. Hall (1 Soam. 35) i. 402 
 
 V. Eeynolds (3 Allen, 605) 
 
 i. 177, 181, 183, 184, 185, 186 
 
 u. Eeynolds (24 Wend. 193) 
 
 i. 627 
 
 V. Sweetser (15 Gray, 78) i. 616 
 
 Bhame v. Bhame (1 McCord 
 Ch. 197) i. 81, 719, 730 ; ii. 87, 
 
 359, 361 
 
BIS 
 
 itoEX TO THE CASES CITED. 
 
 ROB 
 
 Section 
 Ehea v. Ehenner (1 Pet. 105) 
 
 i. 299, 608 
 Rhodes, State v. (Phillips, 453) i. 754 
 Ehyms v. Rhyms (7 Bush, 316) 
 
 ii. 168 a 
 Eibet u. Ribet (39 Ala. 348) ii. 318 
 Rice V. Lumley ( 10 Ohio State, 
 596) ii. 706 
 
 V. Parkman (16 Mass. 326) i. 681 
 
 V. Rice (6 Ind. 100) i. 725; ii. 516 
 
 V. Rice (13 Ind. 562) ii. 501 
 
 «. Rice (21 Texas, 58) ii. 534 
 
 ^ V Rice (31 Texas, 174) i. 658 
 
 V. Shepherd (12 C. B. 832) 
 
 ii. 388 a 
 
 V. State (7 Humph. 14) i. 463, 
 
 473 
 
 V. Tarver (4 Ga. 571) ii. 255 
 
 Richards v. Richards (1 Grant, 
 Pa. 389) i. 717, 729, 748, 745, 757 
 
 V. Richards (1 Wright, Pa. 
 
 225) i. 745,764; ii. 286 
 
 V. Richards (Wright, 302) ii. 604 
 
 Richardson v. Du Bois (Law 
 Rep. 5 Q. B. 61) i. 565 
 
 V. Richardson (1 Hag. Ec. 
 
 6) ii. 25, 342, 612, 620 
 
 V. Richardson (32 Maine, 
 
 560) ii. 549 
 
 V. Richardson (2 Mass. 153) 
 
 ii. 128, 173, 255 
 
 V. Richardson (4 Port. 467) 
 
 ii. 94, 250, 802, 365, 866, 399, 613, 
 614, 621, 626, 646 
 
 , State V. (40 N. H. 272) 
 
 ii. 546, 549 
 
 V. Wilson (8 Yerg. 67) i. 692 ; 
 
 ii. 359, 376, 379, 382, 513, 629 
 Richeson v. Simmons (47 Misso. 
 
 20) i. 686, 695 a 
 
 Richmond v. Patterson (8 Ohio, 
 36*8) i. 475, 533 
 
 V. Richmond (1 Green Ch. 
 
 90) ii. 429, 445, 472, 495, 532, 552, 
 
 553 
 
 V. Richmond (10 Yerg. 343) 
 
 ii. 255, 256, 258, 282, 346 
 Ricker v. Ricker (29 Maine, 281) 
 
 i. 827, 834 
 Rlcketts V. Ricketts (4 Gill, 105) 
 
 ii. 398, 425, 445, 457, 468, 472, 
 502 
 
 V, Taylor (\ Hag. Con. 
 
 299) ii. 627 
 
 Rigg V. Curgenven (2 Wils. 395) i. 498 
 Ringer v. Churchill (2 Scotch 
 
 Sess. Cas. n. s. 307) ii. 149 
 
 Ringgold V. Barley (5 Md. 186) ii. 123 
 Ringstead v. Lanesborough (8 
 
 Doug. 197) i. 590, 591 
 
 Ripple V. Ripple (1 Rawle, 886) i. 415 
 Risher v. Thomas (2 Misso. 98) i. 84 
 
 Section 
 Ristine v. Ristine (4 Rawle, 460) 
 
 i. 71 ; ii. 95, 345, 346 
 Ritter v. Ritter (5 Blackf. 81) 
 
 i. 191, 830 ; ii. 293, 687 
 Rivenburgh v. Rivenburgh (47 
 
 Barb. 419) ii. 283 
 
 Rix V. Rix (3 Hag. Ec. 74) ii. 6, 14, 
 17, 26, 614. 
 Roach V. Garvan (1 Ves. Sen. 
 
 157) i. 396 ; ii. 527, 701, 754, 760 
 Robalina v. Armstrong (15 Barb. 
 
 247) ii. 550 
 
 Robards v. Hutson (3 McCord, 
 
 475) i. 581, 607 
 
 Robbarts v. Eobbarts (9 S. & R. 
 
 191) ii. 260 
 
 Rob bins v. Robbins (100 Mass. 
 150) ii. 59 a, 284 a 
 
 V. Potter (98 Mass. 532) i. 300, 
 
 537 
 
 , State V. (6 Ire. 23) i. 283, 287, 
 
 494, 495 
 Roberts v. Roberts (Wright, 149) 
 
 ii. 472, 677 
 
 V. State Treasurer (2 Hoot, 
 
 381) i. 291, 342 
 
 Robertson's Case (1 Swinton, 93) 
 
 i. 325 
 Robertson v. Cole (12 Texas, 
 
 356) i. 166, 192 
 V. Cowdry (2 West. Law- 
 Jour. 191 ; 1 S. W. Law Jour. 
 167) i. 205, 245 
 
 V. Robertson (1 Edw. Ch. 
 
 360) ii. 406 
 
 V. Robertson (25 Iowa, 350) 
 
 i. 644 a 
 
 V. State (42 Ala. 509) i. 249 a, 279 
 
 Robins v. Crutchley (2 Wils. 
 118) ii. 748 
 
 V. Wolseley (2 Lee, 149) ii. 262 
 
 Robinson u. Bland (2 Bur. 1077) J. 856 
 
 V. Bland (1 W. Bl. 257) i. 83 
 
 V. Campbell (3 Wheat. 212) i. 70 
 
 V. Clifford (2 Wash. C. C. 1) 
 
 i. 426, 427 
 
 V. Dauchy (8 Barb. 20) i. 412 
 
 V. English (10 Casey, 324) 
 
 i. 344 
 
 V. Reynolds (1 Atkins, 174) 
 
 i. 586, 609 
 
 V. Robinson (1 Barb. 27) ii. 285 
 
 V. Robinson (7 Humph. 
 
 440) ii. 474, 510 
 
 V. Robinson (2 Lee, 593) 
 
 ii. 447, 494 
 
 V. Robinson 12 Phillim. 96) i. 732 
 
 V. Robinson (1 Swab. & T. 
 
 862) ii. 246, 248 
 
 Robotham v. Robotham (1 Swab. 
 
 & T. 190) ii. 526 
 
 Roby V. West (4 N. H. 285) ii. 75 
 
 lix 
 
EOS 
 
 INDEX TO THE CASES CITED. 
 
 STP 
 
 Section 
 Roche, Rex v. (1 Leach, 134) 
 
 il. 701, 754 
 
 V. Washington (19 Ind. 
 
 53) i. 228, 279; ii. 163 a 
 
 Rochon V. Lecatt (2 Stew. 429) ii. 731 
 Rock V. Slade (7 Dowl. P. C. 22) 
 
 i. 593 
 JJockwell V. Morgan (2 Beasley, 
 
 119) ii. 373 
 
 Rodebaugh u. Sanks (2 Watts, 
 
 9) i. 283, 284 
 
 Rodes, Commonwealth v. (1 
 
 Dana, 595) i. 469 
 
 Rogers v. Halmshaw (3 Swab. 
 
 & T. 509) i. 287 a 
 V. PhilUps (3 Eng. 366) i. 616 
 
 V. Rogers (15 B. Monr. 
 
 • 364) ii. 202 
 
 V. Rogers (3 C. E. Green, 
 
 445) ii. 673 
 
 V. Rogers (3 Hag. Ec. 57) 
 
 ii. 5, 6, 11, 14, 15, 21, 90, 346 
 
 V. Rogers (4 Paige, 516) i. 650, 
 
 806; ii. 435 
 
 u. Vines (6 Ire. 293) ii. 351, 427, 
 
 429 
 
 V. Walker (6 Barr, 371) ii. 568 
 
 Roirdan, Rex v. ( Car. Crim. Law, 
 
 3d ed. 255) i. 114 
 
 Roland v. Logan (18 Ala. 307) 
 
 i. 582, 616 
 
 , State V. (6 Ire. 241) i. 309 
 
 Rolfe V. Abbott (6 Car. & P. 286) 
 
 ii. 528 
 Rood, State v. (12 Vt. 396) i. 279, 
 289 414 496 
 Rook, Rex v. (1 Wils. 340) i.'447,' 547 
 Rooke's Case (5 Co. 99) i. 830 
 
 Rooker v. Rooker (3 Swab. & T. 
 
 526) ii. 271 a 
 
 Rorer v. O'Brien (10 Barr, 212) 
 
 , i. 582, 606 
 
 Rose V. Bates (12 Misso. 30) i. 602 
 
 V. Clark (8 Paige, 574) i. 279, 
 
 280, 438, 508, 510, 613 
 
 V. Himley (4 Cranch, 241) 
 
 ii. 132 
 
 V. Niles (1 Abbot Adm. 
 
 411) i. 494 
 
 V. Rose (4 Eng. 507) i. 69, 724, 
 
 813, 826 
 
 V. Rose (11 Paige, 166) ii. 302, 
 
 327, 333, 375, 394, 406, 504 
 Roseberry v. Roseberry (17 Ga. 
 
 139) ii. 402, 489, 496 
 Ross V. Hunter (4 T. R. 38) i. 434 
 V. Ross (Law Rep. 1 P. & 
 
 M. 629) ii. 282 a 
 V. Ross (Law Rep. 1 P. & 
 
 M. 734) ii. 25, 25 a 
 
 V. Ross (103 Mass. 575) ii. 213 a 
 
 , State V. (26 Misso. 260) i. 342 
 
 Ix 
 
 Section 
 Roswell, State v. (6 Conn. 446) 
 
 i. 315, 442, 499, 501 
 Roch V. Miles (2 Conn. 638) i. 613 
 Rourke v. Rourke (8 Ind. 427) u. 514 
 
 519 
 Rovena, The (Ware, 309) i. 785 
 
 Rowe V. Rowe (4 Swab. & T. 
 
 162) i- 778 a 
 
 Rowley v. Rowley (Law Rep. 1 
 H. L. So. 63; 3 Swab. & T. 
 338 ; 4 Swab. & T. 137) i. 634 a ; ii. 62, 
 237 a 
 Ruby V. Ruby (29 Ind. 174) i. 830, 836 
 Ruddock V. Marsh (38 Eng. L. & 
 
 Eq. 515; 1 H. &N. 601) i. 556, 562 
 Ruding V. Ruding (1 Hag. Ec. 
 740) ii. 18, 23 
 
 V. Smith (2 Hag. Con. 371) 
 
 i. 361, 390, 393, 395, 396, 399, 400, 
 633 
 Rudman v. Rudman (5 Ind. 63) 
 
 ii. 472, 512 
 Ruraball v. Rumball (Poynter 
 
 Mar. & Div. 237) i. 734; ii. 665 
 
 Rumblyw Stanton (24 Ala. 712) ii. 767 
 Rumney v. Keyes (7 N. H. 571) 
 
 i. 566, 568, 570, 578 ; ii. 558 
 Russell V. BodvU (1 Rep. Ch. 
 186) ii. 353 
 
 V. Russell (4 Greene, Iowa, 
 
 26) ii. 427, 457 
 
 M. Russell (Smith, Ind. 356 ; 
 
 1 Ind. 510) ii. 318, 443 
 
 Rutherford v. Coxe (11 Misso. 
 
 347) 1. 668, 673 
 
 Rutledge v. Rutledge (6 Sneed, 
 
 554) i. 765, 776,; ii. 227 
 
 Ryan v. Ryan (9 Misso. 539) ii. 90, 
 
 95, 398 
 
 V. Ryan (2 Phillim. 332) ii. 754 
 
 Ryder v. Ryder (2 Swab. & T. 
 225) U. 526, 635 
 
 S. V. E. (3 Swab. & T. 240) 1. 331 a, 
 332; ii. 588 a, 597,600 a 
 Sabell's Case (2 Dy. 178 b) i. 116 
 
 Sackett v. Giles (3 Barb. Ch. 204) 
 
 ii. 299, 363, 712 
 
 V. Sackett (8 Pick. 309) 1. 68 
 
 St. Devereux v. Much Dew 
 
 Church (Bur. Set. Cas. 506; 1 
 
 W. Bl. 367) i. 450, 494 
 
 St. George v. St. Margaret (1 
 
 Salk. 123) i. 152; ii. 740 
 
 St. Giles, Reg. v. (11 Q. B. 173) i. 315 
 St. John V. St. John (Wright, 
 
 211) i. 787 
 
 St. John Delpike, Rex v. (2 B. & 
 
 Ad. 226) i. 294 
 
 St. Paul V. St. Paul (Law Rep. 1 
 
 P. & M. 739) ii. 82 
 
SCH 
 
 INDEX TO THE CASES CITED. 
 
 8EL 
 
 SEOTIOJf 
 
 St. Peter's, Eex v. (Bur. Set. Cas. 
 
 25) i. 547 
 
 Sallee v. Chandler (26 Misso. 
 
 124) 1. 402 
 
 Samuel v. Evans (2 T. R. 569) i. 422 
 
 , Stale V. (2 Dev. & Bat. 177) 
 
 i. 156, 162, 279 
 Sanders v. Bodway (16 Beav. 
 
 207) i. 636 
 
 V. Sanders (25 Vt. 713) li. 604, 
 
 651 
 Sandilands, Ex parte (21 Law J. 
 
 N. s. Q. B. 342; 17 Jur. 317; 
 
 12 Eng. L. & Eq. 463) i. 786 
 
 Sands's Case (3.Salk. 22) ii. 739 
 
 Sanford v. Sanford (5 Day, 253) i. 14 ; 
 
 ii. 164, 170, 255, 612, 515 
 
 V. Sanford (2 R. I. 64) ii. 398 
 
 -u. Thompson (18 Ga. 554) i. 406 
 
 Sassen o. Campbell (3 Scotch 
 
 Sess. Cas. new ed. 108 ; 2 
 
 "Wilson & Shaw, 309) i. 232 
 
 Satterlee v. Matthewson (2 Pet. 
 
 413) i. 680 
 
 Saunders v. EuUer (4 Humph. 
 
 516) i. 540 
 
 V. Saunders (2 Bdw. Ch. 
 
 491) ii. 406 
 
 u. Saunders (10 Jur. 143) i. 450, 
 
 726, 736, 737 ; ii. 270, 621 
 
 V. Saunders (1 Robertson, 
 
 549; 5 Notes Cas. 413 ; lljur. 
 738) i. 735, 747, 748 ; ii. 280, 281, 
 
 664 
 
 V. Saunders (1 Swab. & T. 
 
 72) U. 429, 494 
 
 Savoie v. Ignogoso (7 La. 281) ii. 227, 
 241 729 
 Sawtell V. Sawtell (17 Conn. 284) ' 
 
 ii. 128, 212, 682 
 Sawyer v. Cutting (23 Vt. 486) i. 557, 
 
 562- 
 
 V. Sawyer (Walk. Mich. 48) 
 
 ii. 241, 244, 248, 376 
 Saye & Sele, Barony of (1 H. L. 
 
 Cas. 507) i. 447, 546 
 
 Sayer v. Glossop (2 Car. & K. 
 
 694 ; 12 Jur. 465) i. 483 
 
 Sayles v. Sayles (1 Post. N. H. 
 
 312) ii. 239 
 
 Schemerhorn v. Jenkins (7 Jolms. 
 
 373) ii. 303 
 
 Schenck v. Ellingwood (3 Edw. 
 
 Ch. 175) ii. 302 
 
 Scherpf v. Szadeozky (4 E. D. 
 
 Smith, 110) i. 494, 626 
 
 Schetzler v. Scheizler (2 Edw. 
 
 Ch. 584) ii. 311 
 
 Schindel v. Sohindel (12 Md. 294) 
 
 i. 582, 743 
 Schira v. Schira (L^ Rep. 1 P. 
 
 & M. 466) ii. 316, 818 
 
 Section 
 Schlachter, State v. (Phillips, N. 
 
 C. 520) ii. 159, 163 a 
 
 Schmidt v. Schmidt (26 Misso. 
 
 235) ii. 446, 447, 496, 498 
 
 Schnaufer v. Schnaufer (4 La. 
 
 An. 355) ii. 176, 314 
 
 Schouh's Appeal (9 Casey, 351) ii. 718 
 Schonwalda. Schonwald (2 Jones 
 
 Eq. 367) ii. 127, 211 
 V. Schonwald (Phillips, N. 
 
 C. Eq. 215) ii. 105 a, 496 
 
 Schoolmasters of Scotland v. Era- 
 ser (2 Hag. Ec. 613) ii. 309 
 Schrow V. Schrow (103 Mass. 
 
 574) ii. 213 a 
 
 Schulters v. Hodgson (1 Add. Ec. 
 
 105) ii. 281 
 
 Schumpert, Ex parte .(6 Rich. 
 
 344) ii. 529, 548 
 
 Scott's Case (2 Bland, 568) ii. 355 
 Scott u. Boutcher (Ferg. 252) ii. 176 
 
 V. Campbell ii. 51 
 
 V. Scott (6 Ohio, 534) i. 99 
 
 V. Scott (3 Swab. & T. 319) 
 
 ii. 282 a, 284 a 
 
 V. Scott (4 Swah. & T. 113) i. 771 
 
 V. Scott (Wright, 469) i. 783 ; 
 
 ii. 629 
 
 V. Shufeldt (5 Paige, 43) i. 166, 
 
 191 212 214 
 
 V. State (39 Ga. 321) ' i. 308 a 
 
 , Stale V. (10 Post. N. H. 
 
 274) ii. 527, 529, 549 
 
 Scoville V. Canfield (14 Johns. 
 
 3:!8) ii. 701 
 
 Scrimshire v. Scrimshire (2 Hag. 
 
 Con. 395) i. 112, 355, 361, 367, 368, 
 370, 422, 533 ; ii. 376, 754 
 Scrivener v. Scrivener (cited 1 
 
 Robertson, 92) • ii. 80 
 
 Scroggins t. ' Scroggins (3 Dev. 
 
 535) i. 167, 179, 191, 830, 831 ; 
 
 ii. 293, 687 
 
 V. Scroggins (Wright, 212) 
 
 ii. 629 
 Seaborne v. Maddy (9 Car. & P. 
 
 497) ii. 528 
 
 Seals, State v. (16 Ind. 352) i. 497 
 Searle v. Price (2 Hag. Con. 187) 
 
 i. 299 ; ii. 245,.277, 308, 641 
 Sealon v. Benedict (5 Bing. 28) 
 
 i. 553, 554 
 Seaver v. Seaver (2 Swab. & T. 
 
 665) i. 807 
 
 Seddon v. Seddon (2 Swab. & T. 
 
 640) ii. 526, 533 
 
 Seligman u. Calkman (8 Cal. 
 
 207) ii. 572 
 
 Sellars v. Davis (4 Yerg. 503) i. 299 ; 
 ii. 690, 695 
 Seller v. Seller (1 Swab. & T. 
 
 482) ii. 98 
 
 Ixi 
 
SHE 
 
 INDEX TO THE CASES CITED. 
 
 SIM 
 
 Section 
 Sellman v. Bowen (8 GiU & J. 
 
 50) i. 443, 552 
 
 Senseru. Bower (1 Pa. 450) i. 442, 
 
 443, 446, 453, 513 
 
 Sergeson v. Sealey (2 Atk. 412) ii. 566 
 
 Serrell v. SerreU (2 Swab. & T. 
 
 422) ii. 264, 578, 598 
 
 Severn v. Severn (3 Grant, U. C. 
 Ch. 431) i. 738, 765; ii. 47, 357 
 
 V. Severn (7 Grant, TJ. C. 
 
 Ch. 109) ii. 433, 457 
 
 Seymour v. Seymour (1 Swab. & 
 
 T. 832) . ii. 526 
 
 Shafer v. Busbnell (24 Wis. 372) 
 
 ii. 113 a, 163 a 
 Shafher v. State (20 Ohio, 1) i. 145, 
 148, 153 
 Shaftoe v. Shaftoe (7 Ves. 171) 
 
 ii. 436, 506 
 
 Shand v. Gardiner (2 Lee, 135) i. 437 
 
 Shanks v. Dupont (3 Pet. 242) ii. 128 
 
 Shannon v. Shannon (4 Allen, 
 
 134) ii. 122, 123, 144, 214 
 
 V. Shannon (2 Gray, 285) i. 688 ; 
 
 ii. 397 
 Sharman v. Sharman (18 Texas, 
 
 621) i. 717 ; ii. 255 
 
 Sharp V. Sharp (2 Sneed, 496) i. 726 ; 
 
 ii. 514, 520 
 
 V. Wickliffe (3 Litt. 10) i. 469 
 
 Shaw V, Attorney-General (Law 
 Kep. 2 P. & M. 156) ii. 130, 131, 
 144, 151, 163 a, 191 a 
 
 V. Gould (Law Eep. 3 H. L. 
 
 55) i. 705 ; ii. 151, 191 a, 197 
 
 , Rex V. (12 East, 479) i. 421 
 
 V. Shaw (17 Conn. 189) i. 718, 
 
 722, 726, 734, 758, 759 
 
 V. Shaw (98, Mass. 158) u. 213 a 
 
 V. Shaw (9 Mich. 164) ii. 495, 
 
 497 
 
 V. Shaw (13 Scotch Sess. 
 
 Cas. N. s. 819) ii. 149 
 
 , State V. (8 Ire. 582) i. 314 
 
 V. Thackary (23 Eng. L. & 
 
 Eq. 18) i. 131 
 
 V. Thompson (16 Pick. 198) i. 15, 
 
 570, 586, 602 
 Sheafe u.Laighton (36 W. H. 240) 
 
 ii. 378, 498, 502 
 
 V. Sheafe (4 Post. N. H. 564) 
 
 ii. 377, 378, 441, 457, 518 
 
 V. Sheafe (9 Post. N. H. 269) 
 
 ii. 260, 751 
 
 V. Sheafe (36 N. H. 155) ii. 429, 
 
 446, 498, 502 
 
 V. Sheafe (40 N. H. 516) ii. 519 
 
 Shearer v. Clay (1 Litt. 260) i. 540 
 Shearin v. Shearin (5 Jones Eq. 
 
 233) ii. 397 
 
 Sheflaeld v. Sheffield (3 Texas, 
 79) i. 724, 726, 761; ii. 249, 250, 285 
 
 Ixii 
 
 Section 
 SheE V. Shell (2 Sneed, 716) i. 7|0^ 
 
 Shelley v. 'Westbrooke (Jacob, 
 
 266) "• °^^ 
 V. Shelley (13 Ves. Jr. 56 )_ ^^ 
 
 Shelthar v. Gregory (2 Wend. 
 
 222) 1- 6^0 
 
 Shelton v. Hoadley (16 Conn. 
 
 585) ^' °°^' °°° 
 
 V. Pendleton (18 Conn. 417) 
 
 i. 553, 557, 617; ii. 391, 396 
 V. Tiffin (6 How. U. S. 163) 
 
 11. iJiZ 
 
 Shepherd, Commonwealth v. (6 
 
 Binn. 283) „ ji- 620 
 
 V. Mackoul (3 Camp. 326) 
 
 ii. 388, 390 
 
 V. Nabors (6 Ala. 631) i. 413 
 
 Sherburne v. Sherburne (6 Greenl. 
 
 210) i- 99. 698 
 
 Sherman v. Gassett (4 Oilman, 
 
 521) i- 402 
 
 V. Sherman (18 Texas, 521) 
 
 i. 724 
 Shields v. Shields (15 Scotch 
 
 Sess. Cas. n. s. 142) ii- 149 
 
 Shillinger v. ShiHinger (14 111. 
 
 147) ii. 250 
 
 Shirley v. Wardrop (1 Swab. & 
 
 T. 317) ii- 494 
 
 Shoemaker v. Kunkle (5 Watts, 
 
 107) i- 557 
 
 V. Shoemaker (20 Mich. 222) 
 
 ii. 604, 605 
 Shoop's Appeal (10 Casey, 288) 
 
 ii. 866, 480 
 Shore v. Shore (2 Sandf. 714; 8 
 
 N. Y. Legal Observer, 166) ii. 302, 
 .409 
 Shorter v. Boswell (2 Har. & J. 
 . 859) i. 463 
 
 ShotweU V. Shotwell (Sm. & M. 
 
 Ch. 51) ii. 381, 438, 492, 497 
 
 Shreck v. Shreck (32 Texas, 578) 
 
 i. 724 ; ii. 163 a 
 Shreve, State «. (Coxe, 230) ii. 528 
 Shrewsbury Peerage Case (7 H. 
 
 L. Cas. 1) i. 540 
 
 Shrock u. Shreck (4 Bush, 682) 
 
 i. 794o 
 Shuldham's Divorce Bill (12 CI. 
 
 & P. 363) ii. 245 
 
 Shute V. Dorr (5 Wend. 204) ii. 528 
 
 V. Shute (Prec. Ch. Ill) i. 626 
 
 Sidney v. Sidney (4 Swab. & T. 
 
 178) ii. 477o, 479 
 
 Sidwell V. Evans (1 Pa. 388) i. 427 
 Sill V. McKnight (7 Watts & S. 
 
 244) ii. 569 
 
 Sim V. Miles (8 Scotch Sess. Cas. 
 
 89) i. 261 
 
SMI 
 
 INDEX TO THE CASES CITED. 
 
 SMI 
 
 Section 
 Sim V. Miles (12 Scotch Sess. 
 
 Cas. 633) ii. 642 
 
 Simmons Divorce Bill (12 CI. & 
 
 F. 339) ii. 31, 91 
 
 Simmons v. McElwain (26 Barb. 
 419) i. 650 
 
 V. Simmons (11 Jur. 830; 5 
 
 Notes Cas. 324; 1 Robertson, 
 566) ii. 281, 285, 421, 615, 635, 642 
 Simmonsto, Reg. v. (1 Car. & K. 
 164; 1 Cox C. C. 80) i. 497, 501, 
 530, 532 
 Simonds v. Simonds (103 Mass. 
 
 572) i. 692o 
 
 Simonin u. Mallac (2 Swab. & T. 
 
 67) i. 354, 368 ; ii. 131 
 
 Simons o. Simons (13 Texas, 
 468) i. 801,802; ii. 250 
 
 V. Simons (23 Texas, 344) ii. 510 
 
 Simpson o. Simpson (4 Dana, 
 140) i. 645 
 
 V. Simpson (31 Misso. 24) i. 808 
 
 Sinclair v. Jackson (8 Cow. 543) i. 677 
 
 V. Sinclair (1 Hag. Con. 
 
 294) ii. 180, 262, 754 
 
 Singer v. Singer (41 Barb. 139) 
 
 ii. 753 a, 753 b, 753 c 
 Sinton v. Irvine (11 Scotch Sess. 
 
 Cas. 402) ii. 60 
 
 Sisk V. Woodruflf (15 HI. 15) i. 424 
 Sistare v. Sistare (2 Root, 468) i. 629 
 Skinner v. Skinner (5 Wis. 449) i. 764 
 Slack, People v. (15 Mich. 193) i. 145, 
 
 147 
 
 V. Slack (Dudley, Ga. 165) 
 
 ii. 361, 409 
 Slade V. Slade (58 Maine, 157) 
 
 ii. 766 
 
 V. Slade (106 Mass. 499) 
 
 ii. 499 
 Sloan V. Cox (4 Hayw. 75) ii. 90, 432, 
 
 438 
 
 V. Kane (10 How. N. Y. 
 
 Pract. 66) i. 166 
 
 Slocum V. Slocum (2 Philad. 217) 
 
 ii. 497 
 SmaU V. Small (31 Maine, 493) i. 827, 
 
 834 
 
 Smallwood v. Smallwood (2 
 
 Swab. & T. 397) i. 717, 726, 746 ; 
 
 ii. 108 
 
 Smart v. Taylor (9 Mod. 98) i. 137 a 
 
 V. Whaley (6 Sm. & M. 308) 
 
 i. 105, 301 
 Smedley v. Smedley (30 Ala. 
 
 714) i. 717 ; ii. 105, 651 
 
 Smith, Ex parte (34 Ala. 455) ii. 421, 
 
 753 6, 753 c, 753 d 
 
 V. Bartram (11 Ohio State, 
 
 690) i. 429 
 
 V. Derr (10 Casey, 126) i. 548 
 
 V. Elder (3 Johns. 105) i. 532 
 
 Section 
 Smith V. Huson (1 Phillim. 287) 
 
 i. 294, 457 
 
 V. Knowles (2 Grant, 413) i. 653 
 
 V. Morehead (6 Jones Eq. 
 
 360) ' i. 339;ii. 125 
 
 V. Potter (27 Vt. 304) i. 426 
 
 , Reg. V. (14 U. C. ,Q. B. 
 
 565) i. 524 
 V. Sheriflf of Middlesex (15 
 
 East, 607) i. 591 
 
 V. Silence (4 Iowa, 321) i. 598 
 
 V. Smith (45 Ala. 264) ii. 474 
 
 V. Smith (4 Blackf. 132) ii. 255 
 
 V. Smith (1 Edw. Ch. 255) ii. 404 
 
 V. Smith (13 Gray, 209) ii. 123 
 
 214 
 
 V. Smith (4 Greene, Iowa, 
 
 266) ii. 122, 209, 314, 315 
 
 V. Smith (2 Hag. Ec. Supp. 
 
 44) i. 634, 806 
 
 V. Smith (4 Hag. Ec. 609) i. 634 
 
 V. Smith (6 Mass. 36) ii. 311, 314 
 
 V. Smith (9 Mass. 422) ii. 311 
 
 V. Smith (13 Mass. 231) ii. 709 
 
 V. Smith (20 Misso. 166) ii. 260, 
 
 311, 751 
 
 V. Smith (12 N. H. 80) i. 795 ; 
 
 ii. 173, 344 
 
 V. Smith (43 N. H. 234) ii. 651 
 
 V. Smith (5 Ohio State, 32) i. 120 
 
 V. Smith (4 Paige, 92) ii. 80, 
 
 327 
 
 V. Smith (4 Paige, 432) ii. 33, 60, 
 
 80, 253, 256, 260, 335, 337, 338, 341, 
 625, 635, 751 
 
 V. Smith (2 Phillim. 67) ii. 623 
 
 V. Smith 2 PhilUm. 152) ii. 457, 
 
 459, 460, 531 
 
 V. Smith (2 PhilHm. 207) i. 749 
 
 V. Smith (2 Phillim. 235) ii. 445, 
 
 446, 457, 462, 463, 474 
 
 V. Smith (2 Pick. 621) ii. 75 
 
 V. Smith (1 Root, 349) ii. 438 
 
 V. Smith (3 S. & R. 248) i. 698 ; 
 
 U. 227, 376 
 
 V. Smith (1 Swab. & T. 
 
 359) ii. 328, 671, 681 
 
 V. Smith (3 Swab. & T. 
 
 216) ii. 315 
 
 V. Smith (1 Texas, 621) i. 299, 
 
 303, 523, 524 
 
 V. Smith ("Wright, 643) ii. 30, 235, 
 
 237 
 
 V. Smith (Wright, 644) ii. 629 
 
 V. State (9 Ala. 990) i. 156, 162 
 
 , State V. (6 Greenl. 462) ii. 529 
 
 , State V. (19 Wis. 531) ii. 376 
 
 V. Tebbitt (Law Rep. l.P. 
 
 & M. 398) I. 126 
 V. Whitaker (23 111. 367) i. 412 
 
 V. Woodworth (44 Barb. 
 
 198) i. 306 ; ii. 703 
 
 Ixiii 
 
SPI 
 
 INDEX TO THE CASES CITED. 
 
 STB 
 
 Seotioh 
 Smith V. Young (2 Dev. & Bat. 
 
 26) ii. 528 
 
 Smithson's Case (2 Vent. 345) ii. 505 
 
 Smoot V. Lecatt (1 Stew. 590) ii. 731 
 
 Smyth V. Smyth (2 Add. Ec. 
 
 254) ii. 386, 404 
 
 V. Smyth (4 Hag. Ec. 509) ii. 48 
 
 V. State (13 Ark. 696) i. 342 
 
 V. State (8 Eng. 696) i. 294 
 
 Sneed v. Ewing (5 J. J. Mar. 
 
 460) i. 339, 376, 438, 443, 453 
 
 Snover v. Blair (1 Dutcher, 94) i. 568 
 
 V. Snover (2 Beasley, 261) ii. 489, 
 
 554 
 
 V. Snover (2 Stock. 261) ii. 327, 
 
 472, 495 
 Snow V. Snow (2 Notes Cas. 
 Supp. 1) ii. 22, 33, 37, 38, 41, 45, 46, 
 50, 52, 55, 56, 339, 340 
 Snowdon v. Snowdon (Law Eep. 
 
 2 P. & M. 200) ii. 494 
 
 Snowling v. Uursey (2 Lutw. 
 
 1075) i. 316 
 
 Snyder v. Bauchman (8 S. & E. 
 336) i. 83 
 
 V. Snyder (3 Barb. 621) ii. 409 
 
 Society v. Wheeler (2 Gallis. 
 
 105) i. 671 
 
 Soilleux V. Soilleux (1 Hag. Con. 
 
 373) ii. 411, 619, 625, 642 
 
 Somerville v. SomerTiUe (5 Ves. 
 
 750) ii. 175 
 
 Sommersett's Case (20 Howell 
 
 St. Tr. 1) ii. 141 
 
 Soper,.Eex v. (5 T. E. 278) ii. 550 
 Sopwith V. Sopwith (2 Swab. & 
 T. 160) i. 771 ; ii. 58, 89, 417, 418, 767 
 
 V. Sopwith (4 Swab. & T. 
 
 243) ii. 615 
 
 Soiile V. Bonney (37 Maine, 128) i. 212 
 Soules V. Soules (2 Grant, U. C. 
 
 Oh. 299) ii. 357, 411, 425, 495 
 
 Sourton, Eex v. (5 Ad. & E. 180 ; 
 
 6 Nev. & M. 575) i. 447 
 
 Southwick V. Southwick (97 
 
 Mass. 327) i. 778 a 
 
 Sparrow v. Harrison (3 Curt. Ec. 
 
 16) ii. 585, 588 
 
 Spaulding v. Bank of Muskin- 
 gum (12 Ohio, 544) ii. 75 
 
 V. Vincent (24 Vt. 501) i. 426 
 
 Spears v. Burton (31 Missis. 547) i. 442, 
 540, 541 
 Speed 0. Brooks (7 J. J. Mar. 
 
 119) i. 540 
 
 Spencer v. Ford (1 Eob. Va. 
 648) ii. 440 
 
 V. Tisue (Addison, 316) i. 567 
 
 Spering v. Spering (3 Swab. & 
 
 T. 211) i. 634 
 
 Spicer v. Spicer (5 Harring. Del. 
 106) U. 518 
 
 Ixiv 
 
 Section 
 Spier's Appeal (2 Casey, 233) i. 606 
 SpiUer v. Spiller (1 Hayw. 482) u. 355, 
 
 501 
 Spooner, Commonwealth v, (1 
 
 Pick. 235) i- 291 
 
 Spratt V. Harris (4 Hag. Ec. 
 405) "• 739 
 
 V. Spratt (1 Swab. & T. 
 
 215) "• 530 
 
 Sprayberryu.Merk (30 Ga. 81) ii. 388 a 
 Spring V. Eve (2 Mod. 240) i. 421 
 
 Squire v. Sqmre (3 Mass. 184) ii. 173, 
 ^ 256 
 
 Squires v. Squires (3 Swab. & T. 
 
 541) ii. 651 a 
 
 Stacey v. Stacey (29 Law J. N. s. 
 
 Mat. 63 ; 8 W. E. 341) ii. 539 
 
 Staflford v. Stafford (9 Ind. 162) ii. 318, 
 
 439 
 Stainer v. Droitwich (1 Salk. 281) i. 466 
 Stallwood V. Tredger (2 Phillim. 
 
 287) i. 283, 284 
 
 Stammers v. Macomb (2 Wend. 
 
 454) i. 617 
 
 Stamps V. Newton (3 How. 
 
 Missis. 34) ii. 133 
 
 Standen v. Standen (Peake, 32) i. 547 
 Standridge v. Standridge (31 Ga. 
 
 223) ii. 198 
 
 Stanford v. Pruet (27 Ga. 243) i. 424 
 
 V. Stanford (1 Edw. Ch. 
 
 317) ii. 341, 406 
 
 Staniford v. Barry (1 Aikens, 
 
 314) i. 675 
 
 Stanley v. Stanley (26 Maine, 
 
 191) i. 667, 675 
 
 Stausbury v. Bentron (7 Watts 
 
 & S. 362) ii. 529 
 
 Stanton v. Willson (3 Day, 37) 
 
 ii. 528, 556, 723 
 Star V. Taylor (4 McCord, 413) i. 584 
 Starkey v. Starkey (6 C. E. 
 
 Green, 135) i. 792 
 
 Starr v. Hamilton (Deady, 268) i. 667, 
 
 669 ; ii. 199 
 
 V. Pease (8 Conn. 541) i. 26, 669, 
 
 678, 686, 693 ; ii. 199, 710, 712, 713 
 
 V. Peck (1 Hill, N. Y. 270) i. 279, 
 
 437, 453, 508, 526 
 Starrett v. Wynu (17 S. & E. 
 
 180) i. 606 
 
 Stayte v. Earquharsou (3 Add. 
 
 Ec. 282) i. 207 
 
 Steadman v. Powell (1 Add. Ec. 
 
 58) i. 450, 457, 486, 488, S04, 513, 
 
 526 ; ii. 739 
 
 Stearns v. Stearns (10 Vt. 540) ii. 310 
 
 Steele v. Braddell (Milward, 1) i. 361 
 
 V. Steele (35 Conn. 48) ii. 819 
 
 V. Steele (1 DaU. 409) ii. 571, 
 
 651 
 V. Thatcher (Ware, 91) ii. 529 
 
STO 
 
 INDEX TO THE CASES CITED. 
 
 SUM 
 
 Section 
 Steer's Case (2 N. T. City Hall 
 
 Eeo. Ill) i. 442, 480, 499 
 
 StegaU V. StegaU (2 Brock. 256) i. 187, 
 448, 548 
 Stein V. Bowman (13 Pet. 209) 
 
 i. 426, 540 
 Stephens v. Totty (Cro. Eliz. 
 
 908) 1. 719, 728, 730; ii. 729, 732 
 Stephenson v. Bannister (3 Bibb, 
 369) i. 418 
 
 V. Osborne (41 Missis. 119) i. 647 
 
 Sterling v. Sterling (12 Ga. 201) 
 
 ii. 289, 488 
 Stevens v. Bomar (9 Humph. 
 546) i. 409, 475 
 
 u. Seed (37 N. H. 49) 1.443 
 
 V. Stevens (1 Met. 279) i. 100 ; 
 
 ii. 128, 320, 365, 732 
 
 «. Stevens (8 R. I. 557) i. 824 a 
 
 Stevenson v. Gray (17 B. Monr. 
 198) i. 283, 284, 358, 871, 377, 389 
 
 V. McReary (12 S. & M. 9) 
 
 i. 439, 538 
 
 V. Stevenson (29 Misso. 95) 
 
 ii. 260 
 
 V. Stevenson (7 Philad. 
 
 386) ii. 284 a 
 
 Stewart v. English (6 Ind. 176) 
 
 ii. 572 
 
 V. Hubbard (3 Jones Eq. 
 
 186) i. 193 
 
 V. Menzies (2 Bob. Ap. 
 
 Cas. 547) i. 227, 236, 238, 249, 
 
 253, 263 
 
 V. Munohandler (2 Bush, 
 
 278) i. 168 a, 279 
 
 V. Redditt (3 Md. 67) ii. 563 
 
 V. Stewart (2 Swan, Tenn. 
 
 591) i. 775; ii. 88, 667 
 
 Stewartson v. Stewartson (15 111. 
 
 145) ii. 457, 472, 519 
 
 Stigall, State v. (2 Zab. 286) ii. 529, 
 548, 549 
 Stikes V. Swanson (44 Ala. 633) 
 
 i. 163 a, 163 6 
 Stilphen v. Stilphen (58 Maine, 
 
 508) ii. 319 
 
 Stoate V. Stoate (2 Swab. & T. 
 
 384) ii. 258, 743 
 
 Stockbridge v. Quicke (8 Car. & 
 
 K. 305) i. 465, 471 
 
 Stockland, Rex v. (Bur. Set. Cas. 
 
 508) i. 443 
 
 Stoever v. Whitman (6 Binn. 
 
 416) i. 467 
 
 Stokes V. Stokes (1 Misso. 320) 
 
 i. 648, 783 ; ii. 103, 254, 256, 259 
 
 V. Stokes (1 Misso. 324) ii. 176, 
 
 326 
 Stone V. Damon (12 Mass. 488) 
 
 ii. 568 
 V. Pulsipher (16 Vt. 428) ii. 528 
 
 VOL. I. 
 
 Section 
 Stone V. Stone (3 Curt. Ec. 341) 
 
 ii. 446, 448 
 
 V. Stone (9 Jur. 381) ii. 449 
 
 V. Stone (8 Notes Cas. 278 ; 
 
 1 Robertson, 99) ii. 10, 11, 17, 19, 
 23, 89, 242, 243, 632 
 
 V. Stone (8 Swab. & T. 212) 
 
 ii. 743 
 
 Stoner v. Stoner (9 Ind. 505) ii. 318 
 
 Stones V. Cooke (8 Sim. 321) ii. 436 
 
 Story u. Norwicli & Worcester 
 
 Railroad (24 Conn. 94) i. 209 
 
 V. Story (Walk. Mich. 421) 
 
 ii. 384, 387, 898, 459 
 Stoughton V. Mott (13 Vt. 175) 
 
 ii. 133 
 Stoutenberg w.Lybrand (13 Ohio 
 
 State, 228) ii. 239 
 
 Stovall V. Johnson (1 IT. S. Mo. 
 
 Law Mag. 528) ii. 528 
 
 Stover V. Boswell (3 Dana, 232) i. 443 
 Stowell's Case (Godb. 145) ii. 730 
 Strader v. Graham (10 How. TJ. 
 
 S. 82) ii. 137 
 
 Street v. Street (2 Add. Ec. 1) ii. 260, 
 
 875, 455, 467, 463 
 
 V. Street (Turn. & Russ. 
 
 322) ii. 506 
 
 Streeter v. Streeter (43 111. 155) i. 477 
 Stretch v. Pynn (1 Lee, 30) ii. 739 
 Stretton v. Pusnach (4 Moore & 
 
 S. 678; 1 Bing. N. C. 139) i. 592 
 Strickland v. Poole (1 Dall. 14) i. 540 
 Strode v. Strode (3 Bush, 227) ii. 376 
 Strong V. Strong (3 Rob. N. Y. 
 
 669) ii. 319 
 
 V. Strong (3 Rob. N. Y. 
 
 719) U. 605 
 
 Studdy V. Studdy (1 Swab. & T. 
 
 821) 
 
 Stump, Commonwealth 
 Smith, Pa. 132) 
 
 LoUey (2 CI. & F. 
 
 ii. 25 
 
 ! 
 
 i. 279 
 
 (3 
 
 Sugden 
 
 567) " ii. 144 
 
 V. Lolly (Ferg. 269) ii. 29 
 
 Suggate V. Suggate (1 Swab. & 
 
 T. 492) ii. 253, 526, 536, 587 
 
 V. Suggate (1 Swab. & T. 
 
 489 i. 736 
 
 V. Suggate (1 Swab. & T. 
 
 497) ii. 413 
 
 Sullivan v. Sullivan (2 Add. Ec. 
 299) i. 636, 738, 801 ; ii. 25, 88, 
 
 641 
 
 V. Sullivan (2 Hag. Con. 
 
 238) i. 173, 294 
 
 Summerlin v. Livingston (15 La. 
 
 An. 519) i. 302 
 
 Sumner, Commonwealth v. (5 
 
 Pick. 360) i. 78 
 
 V. Murphy (2 Hill, S. C. 
 
 488) i. 173 
 
 Ixv 
 
TAT 
 
 INDEX TO THE CASES CITED. 
 
 THO 
 
 Sumner v. Sebec (3 Greenl. 223) 
 
 ii. 529 
 Sunbury & Erie Eaikoad v. 
 
 Cooper (9 Casey, 278) i. 687 
 
 Surtell V. Brailsford (2 Bay, 333) 
 
 i. 584 
 Sussex Peerage Case (11 CI. & 
 
 F. 85) i. 883, 388, 392, 428, 529 
 
 Suter V. Christie (2 Add. Ec. 150) 
 
 i. 593 
 Sutton V. Warren (10 Met. 451) 
 
 i. 117, 355, 376, 377, 384 
 Swanzy v. Hunt (2 Nott & McC. 
 
 211) i. 173 
 
 Swearingen c/. Swearingen (19 
 
 Ga. 265) ii. 406, 407, 472, 489 
 
 Sweet V. Avaunt (2 Bay, 492) ii. 314 
 Swett V. Swett (49 N. H. 264) ii. 518 
 Swift V. Fitzhugh (9 Port. 39) 
 
 i. 209, 474, 475 
 
 V. KeUy (8 Knapp, 257) i. 205, 
 
 252, 355, 892 
 
 V. Swift (4 Hag. Ec. 189) i. 588 
 
 Switzerland v. Hilderbrand (1 
 
 Ind. 555 ; 1 Smith, Ind. 361) i. 566 
 Sykes v. Halstead (1 Sandf. 488) 
 
 i. 568, 570, 619, 801 ; ii. 384, 483 
 Symons v. Symons (2 Swab. & 
 T. 435) u. 365 
 
 T. V. T>. (Law Eep. 1 P. & M. 
 
 127) i. 831 a; ii. 282 a, 284 o, 588 
 T. V. M. (Law Eep. 1 P. & M. 
 
 31) ii. 594 a 
 
 Ta-cha-na-tah, State v. (64 N. C. 
 
 614) i. 223, 279 
 
 Talbot V. Seeman (1 Cranch, 1) i. 422 
 Tandy v. Masterson (1 Bibb, 830) 
 
 1.469 
 Tappan v. Nutting (Bray ton, 137) 
 
 ii. 753 e 
 
 V. Tappan (6 Ohio State, 64) 
 
 ii. 260, 751 
 Tarant, Eex v. (1 Bott P. L. 838 ; 
 
 2 Bott P. L. 68) i. 178 
 
 Tarbell, Petitioner (82 Maine, 
 
 589) ii. 93, 262 
 
 Tarkington v. State (1 Cart. Ind. 
 
 171) u. 529 
 
 Tarpley r.Poage (2 Texas, 139) 
 
 1.488 
 Tarry v. Browne (1 Sid. 64) i. 215 
 Taylor's Succession (15 La. An. 
 
 313) i. 475 
 
 Taylor, Matter of (9 Paige, 611) 
 
 i. 438, 489, 486, 506 
 V. Bank of Illinois (7 T. B. 
 
 Monr. 576) i. 424 
 V. Binnie (4 Deas. & Ander- 
 son, 314 ; 10 Scotch Sess. Cas. 
 
 18) ii. 411 
 
 Ixvi 
 
 Section 
 Taylor v. Grand Trunk Eailway 
 
 (48 N. H. 304) ii- 659 
 V. Kello (1 Fras. Dom. Eel. 
 
 214) i- 235 
 
 V. Kello (Mor. 12. 687) i. 238 
 
 , People V. (1 Mich. N. P. 
 
 198) i- 288 
 
 V. Eobinson (29 Maine, 328) 
 
 i. 442 
 V. Eunyan (9 Iowa, 522) i. 414 
 
 V. Shemwell (4 B. Monr. 
 
 575) i. 441, 442 
 
 V. Simpson (5 J. J. Mar. 
 
 689) ii- 737 
 
 V. Starr (2 Eoot, 293) ii. 744 
 
 , State V. (Phillips, 508) i. 156, 
 
 163 a 
 
 V. Taylor (4 Des. 167) 
 
 i. 719, 768; ii. 358, 472 
 
 V. Taylor (8 How. U. S. 
 
 183) i. 193 
 
 V. Taylor (Jones, N. C. 
 
 528) ii. 897 
 
 V. Tavlor (1 Lee, 571) i. 446 
 
 V. Taylor (2 Lee. 172) 
 
 i. 755, 767 
 
 V. Taylor (2 Lee, 274) 
 
 i. 446, 506, 538 
 
 V. Taylor (2 Phillim. 40) ii. 468 
 
 V. Taylor (18 Texas, 574) i. 724 
 
 Tatham v. Tatham (3 Swab. &. 
 
 T. 511) ii. 282 a 
 
 Tayman v. Tayman (2 Md. Ch. 
 
 393) i. 718 ; ii. 387, 398, 520 
 
 Teft V. Teft (8 Mich. 67) i. 664 
 
 Telts „. Foster (1 Taylor, 121) 
 
 i. 437, 538 
 Tempany v. Hakewill (1 Fost. & 
 
 F. 438) i. 568 
 
 Tenducci's Case (3 Phillim. 595) 
 
 ii. 128 
 Terrett v. Taylor (9 Cranch, 43) i. 68 
 Territt v. Woodruff (19 Vt. 
 
 182) i. 418 
 
 Terry v. Buffington (11 Ga. 337) ii. 563 
 Tewksbury v. Tewksbury (2 
 
 Dane Ab. 310) ii. 245 
 
 V. Tewksbury (4 How. 
 
 Missis. 109) ii. 244, 376, 446, 512 
 
 Texas's Case (1 Ashm. 175) ii. 438 
 Thatcher v. Thatcher (17 111. 66) 
 
 ii. 92, 367 
 Thayer v. Davis (38 Vt. 163) ii. 625 
 
 V. Thayer (101 Mass. Ill) ii. 625 
 
 Thomas v. Davis (7 B. Monr. 
 227) i. 424 
 
 V. Everard (6 H. & N. 
 
 448) i. 634 a 
 
 V. Gordon (7 Scotch Sess. 
 
 Cas. 872) i. 266 
 
 V. Tailleu (13 La. An. 127) 
 
 1. 765; ii. 88 
 
THU 
 
 INDEX TO THE CASES CITED. 
 
 TRO 
 
 _, Section 
 
 Thomas o. Thomas (18 Barb. 
 
 149) ii. 802, 409 
 
 V. Thomas (2 Cold. 123) ii. 38 
 
 V. Thomas (51 111. 162) ii. 644 
 
 V. Thomas (2 Swab. & T. 
 
 64) ii. 498 
 V. Thomas (2 Swab. & T. 
 
 89) ii. 519 
 V. Thomas (2 Swab. & T. 
 
 113) ii. 25 a 
 
 Thomasson v. Kercheval (10 
 
 Humph. 322) ii. 568 
 
 Thompson v. Harvey (4 Bur. 
 
 2177) ii. 375 
 
 V. Hatch (3 Pick. 512) i. 84 
 
 V. Ketcham (8 Johns. 189) 
 
 i. 412 
 
 V. Lee (31 Ala. 292) i. 214 
 
 V. Musser (1 Dall. 458) i. 424 
 
 V. State (28 Ala. 12) 
 
 ii. 127, 144, 161, 163, 166, 171, 197, 
 
 198 
 
 , State V. (Wright, 617) i. 181 
 
 Steamboat Morton (2 Ohio 
 
 State, 26) ii. 164 
 
 V. Thompson (3 Head, 527) 
 
 ii. 887, 489 
 V. Thompson (Law Hep. 1 P. 
 
 & M. 553) ii. 446 
 V. Thompson (10 Rich. Eq. 
 
 416) ii. 445, 642 
 V. Thompson (1 Swab. & T. 
 
 231) i. 808 ; ii. 671, 680 
 V. Thompson (2 Swab. & T. 
 
 402) ii. 536 
 
 V. Thompson (Wright, 470) 
 
 ii. 678 
 V. Thompson (1 Yeates, 78 ; 
 
 2 Dall. 128) i. 719 ; ii. 729 
 
 V. Trevanion (Skinner, 402) 
 
 a. 661 
 
 V. Warren (8 B. Monr. 488) 
 
 ii. 421 
 Thornberry v. Thornberry (2 J. 
 
 J. Mar. 322) i. 71, 718, 722, 781 ; 
 ii. 328, 365, 386 
 
 V. Thornberry (4 Litt. 251) 
 
 ii. 260, 457; 472, 512, 514, 750 
 Thorndell v. Jlorrison ( 1 Casey, 
 
 326) i. 442, 586 
 
 Thorndike v. Boston (1 Met. 242) 
 
 ii. 119 
 V. Rice (24 Law Reporter, 
 
 19) ii. 204 
 V. Thorndike (1 Wash. Ter. 
 
 198) ii. 489 
 
 Thorp V. Thorp (Wright, 768) i. 816 
 Threewits v. Threewits (4 Des. 
 
 560) i. 719 ; ii. 88, 50, 59, 235, 355, 
 
 362 
 Thurston v. Percival (1 Pick. 
 
 415) i. 411, 418 
 
 Sectioh 
 Tiffin V. Tiffin (2 Binn. 202) ii. 51 
 Tilton V. Russell (11 Ala. 497) ii. 527 
 Timmens, State v. (4 Minn.'325) 
 
 i. 497, 499 
 Timmings v. Timmings (3 Hag. 
 
 Ec. 76) ii. 9, 21, 43, 45, 102, 337, 
 
 340 
 Timmins v. Lacy (80 Texas, 
 
 115) i. 156 
 
 Tims V. Potter (Martin, N. C. 
 
 22) i. 154 
 
 Titus V. Hobart (5 Mason, 378) 
 
 i.402 
 
 V. Scantling (4 Blackf. 89) i. 413 
 
 Todd V. Stokes (1 Ld. Raym.) 
 
 444 ; 12 Mod. 2ii) i. 568 
 V. Todd (Law Rep. 1 P. & 
 
 M. 121) ii. 28, 29 
 
 Tolen V. Tolen (2 Blackf. 407) 
 
 ii. 128, 141, 144, 157, 161, 163 a, 176, 
 198, 199 
 Tollemache v. Tollemache (1 
 
 Swab. & T. 557) ii. 108 
 
 Tomkins v. Tomkins (1 Swab. & 
 
 T. 168) i. 717, 770 
 
 Toulmin, Matter of (R. M. Charl. 
 
 489) ii. 529, 546 
 
 Tournd ■/. Toum^ (9 La. 452) 
 
 i. 724, 736 ; ii. 663 
 Tourney v. Sinclair (3 How. 
 
 Missis. 324) i. 647 
 
 Tourtelot v. Tourtelot (4 Mass. 
 
 506) ii. 237 
 
 Torey v. Lindsay (1 Dow, 117) 
 
 ii. 126, 181, 184, 230 
 Towle V. Blake (48 N. H. 92) ii. 659 
 Townsand v. Townsand (21 111. 
 
 540) ii. 311 
 
 Townsend v. Graves (3 Paige, 
 
 453) ■ ii. 644 
 V. Griffin (4 Harring. Del. 
 
 440) i. 5, 9, 14, 678, 679, 680, 684, 
 686, 687, 698; ii. 170, 710, 712, 713 
 
 V. Townsend (2 R. I. 150) 
 
 ii. 844 
 Tracey v. Sacket (1 Ohio State, 
 
 54) i. 193 
 
 Tracy, Matter of (1 Paige, 580) ii. 159 
 Trammell v. Thurmond ( 17 Ark. 
 
 203) i. 463 
 
 Trelawney v. Coleman (1 B. & 
 
 Aid. 90; 2 Stark. 191) ii. 621 
 
 Trimble v. Trimble (2 Ind. 76) 
 
 i. 413, 533 ; ii. 262, 268 
 
 V. Trimble (15 Texas, 18) 
 
 ii. 514, 532 
 Troughton v. Hill (2 Hayw. 406) 
 
 i. 588, 604 
 Trowbridge v. Carlin (12 La. An. 
 
 882) i. 754 
 
 Trower's Case (Macqueen H. L. 
 
 Pract. 656) i. 483, 524 
 
 Ixvii 
 
vs. V. J. 
 
 INDEX TO THE CASES CITED. 
 
 VAE 
 
 Section 
 True V. Eanney (1 Post. N. H. 
 62) i. 124, 128, 218, 376 
 
 V. Triie (6 Minn. 458) . ii. 753 a 
 
 Truman's Case (1 East P. C. 
 
 470) i. 442, 497, 502 
 
 Tryon v. Eankin (9 Texas, 595) 
 
 ^ ^ 3.426, 427 
 
 Tubbs V. Harrison (4 T. K. 118) 
 
 ii. 527 
 Tucker v. Carlin (14 La. An. 734) 
 
 ii. 421 
 V. Scott (Pennington, 955) i. 583 
 
 V. Tucker (11 Jur. 898 ; 5 
 
 Notes Cas. 458) ii. 243, 244, 245, 
 
 613 
 Turbitt V. Turbitt (21 111. 438) i. 743 
 Tummalty u. Tummalty (SBradf. 
 
 369) ' i. 508 
 
 Turing, Ex parte (1 Ves. &-B. 
 
 140) i. 136, 137 a 
 
 TurnbuU v. TurnbuU (23 Ark. 
 
 615) ii. 38 
 
 Turner v. Felton (2 Phillim. 92) 
 
 i. 294 
 
 V. Meyers (1 Hag. Con. 414 ; 
 
 4 Eng. Ec. 440) i. 124, 125, 127, 
 130 ; ii. 307, 663, 564, 565 
 
 V. Eookes (10 Ad. & E. 47 ; 
 
 2 Per. & D.- 294) ii. 890, 391 
 
 , State V. (Wright, 20) i. 131 
 
 V. Turner (44 Ala. 487) ii. 53, 
 
 156, 163, 170 a 
 
 V. Turner (3 Greenl. 398) ii. 318, 
 
 345 
 
 V. Turner (2 Spinks, 201, 
 
 note) ii. 43 a 
 
 V. Turner (2 Swab. & T. 
 
 426) ii. 321 
 
 Turney v. Turney (4 Edw. Ch. 
 
 566) ■ ii. 642 
 
 Turpin v. Public Administrator 
 
 (2 Brad. 424) i. 261 
 
 Turrel v. Turrel (2 Johns. Ch. 
 
 891) ii 354,406,457 
 
 Turst V. Turst (2 Lee, 92) ii. 394 
 
 Turton v. Turton (3 Hag. Ec. 
 
 388) ii. 6, 14, 18, 44, 49, 60, 70, 
 
 89, 253, 385, 336, 339, 635 
 Twitty, State v. (2 Hawks, 441) 
 
 i. 424 
 Twyman t). Twyman-(27 Misso. 
 
 383) ii. 88, 249 
 
 Twyning, Kex v. (2 B. & Aid. 
 
 386) ■ i. 437, 458 
 
 Tyler v. Trabue (8 B. Monr. 306) 
 
 i. 409, 427, 530 
 Tyson's Appeal (10 Barr, 220) i. 582, 
 
 606 
 
 U. V. F. (2 Robertson, 614) ii. 588 a 
 V. V. J. (Law Kep. 1 P. & M. 460) 
 
 i. 381a; ii. 282 o, 284 a 
 
 Ixviii 
 
 Section 
 University v. Williams (9 Gill & 
 
 J. 365) i- 670 
 
 Upton, Eeg. v. (1 Car. & K. 165)_ 
 
 Urquhart v. Flucker (Ferg. 259) 
 
 ^ ii. 176 
 
 Utsler V. Utsler (Wright, 627) i. 823 
 
 Utterton v. Tewsh (Ferg. 23) ii. 29, 
 
 148, 150 
 
 Valansart's Succession ("12 La. 
 
 An. 848) i. 405 
 
 Valentine v. Ford (2 Browne, 
 
 193) !■ 585 
 V. Valentine (4 Halst. Ch. 
 
 219) ii- 533 
 
 Valleau v. Valleau (6 Paige, 207) 
 
 i. 114, 710 ; ii. 104, 107, 413 
 Van Aernam v. Van Aernam (1 
 
 Barb. Ch. 375) i. 448 ; ii. 23, 559, 
 
 740 
 Van Buskirk v. Mulock (3 Har- 
 rison, 184) i. 426 ; ii. 499 
 Van Cort v. Van Cort (4 Edw. 
 
 Ch. 621) ii. 642, 643 
 
 Van Epps u. Van Epps (6 Barb. 
 
 320) ii. 614, 626, 635, 642 
 
 Van Note v. Downey (4 Butcher, 
 
 219) i. 582 
 
 Van Tuyl v. Van Tuyl (57 Barb. 
 
 235 ; 8 Abb. Pr. n. s. 5) i. 251 a, 279 
 Van Valkinburg v. Watson (13 
 
 Johns. 480) ii. 528 
 
 Van Veghten v. Van Veghten (4 
 
 Johns. Ch. 501) i. 761 ; ii. 235 
 
 Van Voorhees v. Van Voorhees 
 
 (Wright, 636) i. 783 
 
 Vanatta v. Anderson (8 Binn. 
 
 417) i. 83 
 
 Vance v. Vance (8 Greenl. 182) 
 
 ii. 245 
 
 V. Vance (17 Maine, 203) ii. 258, 
 
 345, 766 
 Vander Donckt v. Thellusson (8 
 
 Com. B. 812) i. 529 
 
 Vandergucht v. De Blaquiere (8 
 
 Sim. 315) ii. 487, 505 
 
 Vanduzer v. Vanduzer (6 Paige, 
 
 366) ii. 738 
 
 Vandyck ... Hewitt (1 East, 96) 
 
 ii. 75 
 Vane's Case (13 East, 172; 1 W. 
 
 Bl. 18) i. 765 
 
 Vanleer v. Vanleer (1 Harris, Pa. 
 
 211) i. 783,799 
 
 Vanvalley I). Vanvalley (19 Ohio 
 
 State, 588) ii. 376 
 
 Vanzant v. Vanzant (23 111. 536) 
 
 ii. 502 
 Varner v. Varner (3 Blackf. 168) 
 
 ii. 255 
 
WAL 
 
 INDEX TO THE CASES CITED. 
 
 WAR 
 
 Section 
 Vaughan v. Buck (3 Eng. L. & 
 Eq. 135 ; 1 Sim. N. 8. 284) i. 582 ; 
 ii. 450 
 
 V. Phebe (Mart. & Yerg. 5) 
 
 i. 540 
 Vaughn ». McQueen (9 Misso. 
 
 327) i. 344 
 
 Verginer v. Kirk (2 Des. 640) i. 42 
 Vertner v. Humphreys (14 Sm. 
 
 & M. 130) 1. 404 
 
 Viall V. Smith (6 R. I. 417) i. 468 
 
 Vignos V. Viguos (15 lU. 186) i. 718, 
 
 729 
 Vincent v. Parker (7 Paige, 65) ii. 504, 
 
 524 
 Villareal v. Mellish (2 Swanst. 
 
 533) ii. 527 
 
 Violett V. Violett (2 Dana, 323) i. 668 
 Vischeru. Vischer (12 Barb. 640) 
 
 ii. 128, 144, 159, 163 a, 762, 763 
 Viser v. Bertrand (14 Ark. 267) 
 
 ii. 239, 391 
 Volentine v. Bladen (Harper, 9) ii. 528 
 Von Glahn v. Von Glahn (46 lU. 
 134) i. 764 
 
 W. V. H. (2 Swab. & T. 240) i. 832, 
 334; ii. 597 
 
 Wadsworth v. Sharpsteen (4 Seld. 
 388) ii. 569 
 
 Wagg u. Gibbons (5 Ohio State, 
 580) 1. 605 
 
 Wagner's Estate (2 Ashm. 448) 
 
 i. 653 
 
 Wait V. Wait (4 Barb. 192; 4 
 Comst. 95) ii. 707 
 
 Waithman v. Wakefield (1 Camp. 
 120) i. 618 
 
 Wakefield v. Maokay (1 PhUlim. 
 134) i. 167 
 
 , Rex 0. (39 Annual Regis- 
 ter, 316 ; 47 Edin. Rev. 100; 2 
 Lewin, 279; 2 Townsend St. 
 Tr. 112 ; Deac. Grim. Law, 4) 
 
 i. 196 
 
 V. Wakefield (1 Hag. Con. 
 
 394) i. 292 
 
 Waldron v. Tuttle (4 N. H. 371) 
 
 i. 540 
 
 V. Waldron (5 Smith, Pa. 
 
 231) ii. 387 
 
 Walker v. Forbes (26 Ala. 139) i. 530 
 
 V. Eorbes (31 Ala. 9) i. 427 
 
 V. Laighton (11 Post. N. H. 
 
 Ill) i. 786, 789, 790, 806, 810 
 , Reg. u. (2 Moody & R. 
 
 212) ii. 659 
 
 V. Simpson (7 Watts & S. 
 
 83) i. 568, 616, 621 
 
 V. Walker (41 Ala. 353) i. 413 
 
 V. Walker (1 Curt. Ec. 560) ii. 395 
 
 Section 
 Walker v. Walker (cited 3 Hag. 
 Ec. 69) ii. 6 
 
 V. Walker (2 PhiUim. 153) ii. 22, 
 
 23, 48, 49 
 
 V. Walker (9 Scotch Sess. 
 
 Cas. 3d ser. 460) ii. 79 
 
 V. Walker (9 Scotch Sess. 
 
 Cas. 3d ser. 1091) ii. 79, 613 a 
 
 WaU V. Williams (11 Ala. 826) i. 223 ; 
 
 ii. 141, 754 
 
 V. WiUiamson (8 Ala. 48) i. 223, 
 
 355, 372 ; ii. 141, 754 
 Wallace v. Bassett (41 Barb. 92) i. 650 
 
 , State V. (9 N. H. 515) i. 463, 
 
 464, 468, 479 ; ii. 625 
 Walling V. Walling (1 C. E. 
 
 Green, 389) ii. 456 
 
 Wallingsford v. Wallingsford (6 
 Har. & J. 485) ii. 235, 351, 355, 
 
 360, 362, 363, 427, 435 
 WaUis V. Wallis (29 Law J. N. a. 
 
 Mat. 151) ii. 464 
 
 Wallscourtt). Wallscourt (llJur. 
 
 134) i. 736 
 
 Walsh V. KeUy (10 Casey, 84) i. 653 
 Walton V. Northington (5 Sneed, 
 282) i. 194 
 
 V. Rider (1 Lee, 16) i. 228, 250 ; 
 
 ii. 290 
 
 V. Walton (32 Barb. 203) ii. 328 
 
 Waltz V. Waltz (18 Ind. 449) ii. 154 
 Wambaugh v. Schenck (Penning- 
 ton, 229) i. 452 
 Wand V. Wand (14 Cal. 512) i. 717, 
 719; ii. 532 
 Ward V. Barnard (1 Aikens, 121) 
 
 i. 670 
 
 V. Dey (7 Notes Cas. 96) i. 529 
 
 V. Dey (1 Robertson, 759) i. 524, 
 
 533 
 
 V. Dulaney (23 Missis. 410) i. 124, 
 
 127, 139, 457 
 
 V. Ward (2 Dev. Ch. 553) ii. 302, 
 
 367 
 
 V. Ward (1 Swab. & T. 185) 
 
 i. 783, 794 
 
 V. Ward (1 Swab. & T. 
 
 484) ii. 498 
 
 Waring v. Waring (2 PhiUim. 
 
 132 ; 2 Hag. Con. 153) i. 717, 758, 
 
 761, 764, 765, 767, 768 ; ii. 659 
 
 Warner w. Commonwealth (2 Va. 
 
 Cas. 95) i. 424, 441, 494, 495, 497, 
 
 498, 523 
 
 V. Warner (33 Missis. 547) 
 
 ii. 520 
 Warren v. Bray (8 B. & C. 813) i. 465, 
 
 468 
 
 V. Thomaston (43 Maine, 
 
 406) ii. 123 
 
 V. Warren (3 Mass. 321) i. 718, 
 
 729 
 
 Ixix 
 
WED 
 
 INDEX TO THE CASES CITED. 
 
 WHE 
 
 Section 
 "Warrender v. Warrender (2 CI. 
 
 & P. 488 ; 9 Bligh, 89) i. 242, 
 
 356, 361, 362, 366, 372, 377, 
 
 634, 685; ii. 126, 129, 148, 
 
 161, 182, 184, 185, 186, 189, 
 
 191, 234 
 
 Warwick v. Cooper (5 Sneed, 
 
 669) i. 143, 146, 153 
 
 Washburn v. Tracy (2 D. Chip. 
 
 128) ii. 75 
 
 V. Washburn (9 Cal. 475) i. 818 
 
 V. Washburn (8 Mass. 131) ii. 608 
 
 V. Washburn (5 N. H. 196) 
 
 ii. 241, 608, 625, 644 
 Waskatn v. Waskam (31 Missis. 
 
 154) i. 734 
 
 Waters v. Waters (49Misso. 385) ii. 398 
 Watkins v. Haight (18 Johns. 
 
 138) i. 101 
 
 V. Holman (16 Pet. 26) i. 680, 
 
 681, 683 
 
 V. Watkins (7 Terg. 283) i. 685 
 
 Watkinson v. Mergatron (T. 
 
 Kaym. 464) i. 316 
 V. Watkinson (12 B. Monr. 
 
 210) i. 767, 773, 795 ; ii. 760 
 
 Watkyns v. Watkyns (2 Atk. 96) 
 
 ii. 80, 352, 358 
 Watson V. Blaylock (2MU1, 351) i. 345 
 Walters, State v. (3 Ire. 455) i. 808, 
 
 647 
 Walton V. Wattou /Law Eep. 1 
 
 P. & M. 227) ii. 743 
 
 Watts, State v. <10 Ire. 369) i. 344 
 Waully, Kex v. (1 Moody, 163; 
 
 1 Lewin, 23) i. 294 
 
 Way, States. (6 Vt. 311) ii. 614 
 
 Weatherbee v, Weatherbee (20 
 
 Wis. 499) ii. 768 a 
 
 Weatherford v. Weatherford (20 
 
 Ala. 548) i. 513 
 
 Weatherley v. Weatherley (1 
 
 Spinks, 198) ii. 636 
 
 Weaver v. Cryer (1 Dev. 337) i. 442, 
 
 445 
 Webb's Estate (1 Tucker, 372) 
 
 i. 306 a ; ii. 708 
 Webb V. Needham (lAdd. Ec. 
 
 494) • ii. 739 
 
 V. Webb (1 Hag. Ec. 349) ii. 316 
 
 Weber v. Weber (1 Swab. & T. 
 
 219) ii. 418, 461 
 
 Webster v, McGinnis (5 Binn. 
 
 235) i. 687, 562 
 
 V. Reid (11 How. U. S. 
 
 437) ii. 170 a 
 
 V. Webster (23 Eng. L. & 
 
 Eq. 216) ii. 58 
 
 V. Webster (3 Swab. & T. 
 
 106) ii. 526 
 
 Wedgwood's Case (8 Greenl. 75) 
 
 i. 442, 463, 464, 468, 478, 479 
 
 Ixx 
 
 Sbction 
 Weeks v. Hill (88 N. H. 199) ii. 239 
 Weinberg w. State (26 Wis. 370) 
 
 i. 440 a 
 Welch, State v. (26 Maine, 30) 
 
 ii. 643 
 
 V. Welch (16 Ark. 527) ii. 235, 
 
 246, 811 
 Welde V. Welde (2 Lee, 578) ii. 585, 
 
 588 
 
 V. Welde (2 Lee, 580) i. 113, 
 
 332 ; ii. 688, 597 
 Welland Canal v. Hathaway (8 
 
 Wend. 480) i. 532 
 
 Welles V. Tucker (3 Binn. 366) 
 
 ii. 723 
 Wellesley v. Beaufort (2Russ. 1; 
 1 Dow & CI. 162) ii. 529, 546 
 
 V. Wellesley (2 Bligh, n. s. 
 
 194) ii. 529 
 
 Wells V. Cottam (3 Swab. & T. 
 864) ii. 298 
 
 V. Fisher (1 Moody & R. 99) i. 94 
 
 V. Fletcher (5 Car. & P. 12) i. 92 
 
 ■ V. Stout (9 Cal. 479) i. 641 
 
 V. Thompson (13 Ala. 793) ii. 198, 
 
 279, 682 
 
 V. Treadwell (28 Missis. 
 
 717) i. 647 
 
 V. WeUs (1 Swab. & T. 
 
 808) ii. 415 
 
 Welman v. Nutting (2 Dane Ab. 
 
 305) i. 455 
 
 West V. State (1 Wis> 209) i. 501 
 
 V. West (2 Mass. 223) i. 100, 
 
 678, 686, 693, 697, 698 
 
 V. West (10 S. & R. 446) i. 682, 
 
 606 
 Westbrook v. Westbrook (2 
 
 Greene, Iowa, 598) ii. 238 
 
 Westby v. Westby (2 Dru. & W. 
 
 502) i. 386 
 
 West Cambridge v. Lexington (1 
 
 Pick. 506) ii. 717 
 
 Westfall V. Jones (23 Barb. 9) i. 214 
 Westfield v. Warren (3 Halst. 
 
 249) i. 439, 540 
 
 Westmeath v. Salisbury (6 Bligh, 
 N. R. 339) i. 637 
 
 V. Westmeath (2 Hag. Ec. 
 
 Supp. 1) i. 634, 717, 726, 780, 
 
 734, 741, 766, 804, 806 ; ii. 22, 88, 
 
 46, 49, 50, 56, 58, 71, 284, 619, 
 
 663 
 
 V. Westmeath (Jacob, 126) 
 
 i. 684, 685 
 
 V. Westmeath (3 Knapp, 
 
 42) ii. 875, 429, 447, 465 
 
 Weston V. Stammers (1 Dall. 2) i. 478 
 Wharton v. Mair (Eerg. 250) ii. 128, 
 
 148 
 Wheeler v. Alderson (8 Hag. 
 Ec. 574) i. 130, 132 ; ii. 563 
 
WHI 
 
 INDEX TO THE CASES CITED. 
 
 WIL 
 
 Section 
 Wheeler v. Hotchkiss (10 Conn. 
 
 225) ii. 712 
 V. McWilliams (2 U. C. Q. 
 
 B. 77) i. 444, 472 
 V. Wheeler (2 Dane Ab. 
 
 310) ii. 737 
 
 V. Wheeler (18 111. 39) ii. 429, 
 
 472 
 Whetford, Eex v. (cited 5 Ben- 
 
 tham's Rationale of Judicial 
 
 Evidence, 160) i. 523 
 
 Whieldon v. Whieldon (2 Swab. 
 
 & T. 888) ii. 466, 467, 526, 553 
 
 Whigham, People v. (1 Wheeler 
 
 C. C. 115) i. 486 
 Whipple V. Dow (2 Mass. 415) ii. 527 
 Whispell V. Whispell (4 Barb. 
 
 217) i. 717, 726, 727, 742 ; ii. 50, 
 52, 56, 57, 58, 376, 457, 657 
 Whitcomb v. Whitcomb (2 Curt. 
 
 Ec. 351) ii. 126 
 
 White V. Crew (16 Ga. 416) i. 214 
 
 V. Driver (1 Phillim. 84) ii. 563 
 
 </. Henry (24 Maine, 531) 
 
 ii. 528 
 V. Lowe (1 Redfield, 376) 
 
 V. Perley (15 Maine, 470) 
 
 V. State (4 Iowa, 449) 
 
 V. Strother (11 Ala. 720) 
 
 V. White (5 Barb. 474) 
 
 V. White (105 Mass. 325) 
 
 U.White (5 N. H. 476) 
 
 i. 114, 
 
 283 
 
 i. 412 
 
 i.342 
 
 i. 540 
 
 i. 675 ; 
 
 ii. 714 
 
 i. 658 
 
 u. 144, 
 
 198 
 
 V. White (45 N. H. 121) ii. 343 a 
 
 V. White (1 Swab. & T. 591) 
 
 i. 737, 761, 762 a 
 
 V. White (Wright, 138) i. 295, 
 
 ii. 472, 677 
 
 V. Wilson (13 Ves. 87) ii. 563 
 
 Whitfield u. Hales (12 Ves. 492) 
 
 ii. 529, 546 
 Whitman v, Hapgood (10 Mass. 
 
 437) i. 672 
 
 Whitmore, Ex parte (Dick. 143) 
 
 ii. 506 
 
 V. Whitmore (Law Rep. 1 P. 
 
 & M. 96) ii. 82 
 
 Whitney v. Whitney (7 Bush, 
 
 520) ii. 750 
 
 Whitsell V. Mills (6 Ind. 229) 
 
 ii. 706, 710 
 
 V. Whitsell (8 B. Monr. 50) 
 
 ii. 398, 422 
 Whitten v. Whitten (3 Cash. 191) 
 
 i. 682 
 Whittier v. Whittier (11 Post. N. 
 
 H. 452) ii. 516, 518, 520 
 
 Whittington v. Whittiugton (2 
 Dev. & Bat. 64) i. 86, 707 ; ii. 23, 
 90, 104, 227, 230, 328 
 
 Section 
 Whorewood v. Whorewood (1 
 
 Ch. Gas. 153) ii. 358, 361 
 
 Whorwood v. Whorwood (1 Rep. 
 
 Ch. 223) ii. 362 
 
 Wier V. Still (31 Iowa, 107) i. 166, 184 
 Wighan, People v. (1 Wheeler, 
 
 C. C. 116) i. 494 
 
 Wightman v. Wightman (45 111. 
 
 167) ii. 498, 501 
 V. Wightman (4 Johns. Ch. 
 
 343) i. 120, 136, 137 a, 140, 
 
 376,377; ii. 289, 291, 565 
 Wihen v. Law (3 Stark. 63) i. 463 
 Wilber v. Williams (8 Law Re- 
 porter, 439) ii. 75 
 Wilbraham v. Ludlow (99 Mass. 
 
 587 ) ii 122 
 
 Wilburu. Tobey (16Pick. 177) i! 120 
 Wilcocks V. PhiUips (1 Wallace, 
 
 Jr. 47) i. 630 
 
 Wilcox, People v. (22 Barb. 178) 
 
 ii. 550 
 
 u. Wilcox (10 Ind. 436) 
 
 ii. 163 a 
 Wiles 0. Wiles (3 Md. 1) 
 
 i. 355, 
 358 
 ii. 255 
 1 
 ii. 744 
 
 Wiley V. Wiley (27 Ala. 704) 
 Wilkerson v. Goldthwaite 
 
 Stew. & P. 159) 
 Wilkes V. Wilkes (2 Dick. 791) 
 
 ii. 362, 363 
 Wilkinson v. Gordon (2 Add. 
 
 Eo. 162) i. 457 ; ii. 640, 739 
 
 V. Payne (4 T. R. 468) 
 
 i. 445, 509, 513 
 V. Stanbrough (1 La. An. 
 
 264) i. 699 
 V. Wilkinson (30 Law J. 
 
 N. s. Mat. 200) ii. 539 
 
 WUlard v. Stone (7 Cow. 22) i. 143, 
 
 170 
 
 V. Willard (4 Mass. 506) ii. 296 
 
 Williams, In the Goods of (3 
 
 Hag. Eo. 217) ii. 739 
 V. BaUy (Law Rep. 2 Eq. 
 
 731) i. 634 a 
 
 V. Baldwin (7 Vt. 606) ii. 723 
 
 V. Brown (3 B. &. P. 69) ii. 141 
 
 V. Callow ( 2 Vern. 752) ii. 363 
 
 «. Dormer (16 Jur. 366; 9 
 
 Eng. L. & Eq. 698 ; 2 Robert- 
 son, 506) i. 116; ii. 125, 255, 262, 
 
 766 
 V. East India Co. (3 East, 
 
 192) i. 435, 450 
 V. Fowler (McClel. & Y. 
 
 269) i. 722; ii. 388, 391 
 
 V. Gooch (3 Met. Ky. 486) ii. 524 
 
 V. Hutchinson (6 Barb. 122; 
 
 3 Comst. 312) ii. 527 
 V. Monroe (18 B. Monr. 
 
 514) ii. 388, 398 
 
 Ixxi 
 
WIL 
 
 INDEX TO THE CASBB CITED. 
 
 WOO 
 
 Section 
 
 Williams v. Gates (5 Ire. 535) i. 374 ; 
 
 li. 701, 704 
 
 V. Prince (3 Strob. 490) 
 
 i. 573, 577 
 
 V. Saunders (5 Cold. 60) li. 125 
 
 w. State (44 Ala. 24) i. 212 
 
 , State V. (20 Iowa, 98) i. 494 
 
 !). Williams (3 Barb. Ch. 
 
 628) ii. 406, 408, 637 
 
 V. Williams (4 Des. 183) 
 
 ii. 457, 472, 531, 533, 552 
 
 V. Wiffiams (3 Greenl. 135) 
 
 ii. 262 
 V. Williams (1 Hag. Con. 
 
 299) ii. 30, 242, 243, 248, 613, 
 615, 626, 627, 637, 641 
 V. Williams (Law Rep. 1 P. 
 
 & M. 29) ii. 246 
 V. Williams (Law Rep. 1 P. 
 
 & M. 370) ii. 494 
 
 V Williams (3 R. L 185) ii. 213 
 
 V. Williams (3 Swab. & T. 
 
 547) i. 783 
 
 Williamson v. Dawes (2 Moore 
 
 & S. 352) i. 592 
 V. Parisien (1 Johns. Ch. 
 
 389) i. 299 ; ii. 108, 209 
 V. Williams (3 Jones Eq. 
 
 446) i. 138, 145 
 V. Williamson (1 Johns. Ch. 
 
 488) i. 71, 75 ; ii. 38, 103, 104, 235 
 Willinck v. Davis (Harper, 260) ii. 75 
 WiUings V. Consequa (Pet. C. C. 
 
 301) 1. 402 
 
 Willis V. Bernard (8 Bing. 376 ; 
 
 1 Moore & S. 584 ; 5 Car. & P. 
 
 342) li. 621 
 
 , State V. (4 Eng. 196) i. 291, 342 
 
 Willsou V. Smyth (1 B. & Ad. 
 
 801) ii. 401 
 
 Wilmington v. Burlington (4 
 
 Pick. 174) i. 540 
 
 Wihnore v. Wilmore (15 B. 
 
 Mour. 49) ii. 510, 514, 516 
 
 Wilmot's Case (Sir P. Moore, 
 
 851) i. 587 
 
 Wilson V. Brockley (1 PhiUim. 
 
 132) i. 105 
 
 V. Burr (25 Wend. 386) ii. 391 
 
 V. Carson (12 Md. 54) i. 418, 427 
 
 V. Green (25 Vt. 450) i. 173 
 
 V. Lazier (11 Grat. 477) i. 424 
 
 , Rex V. (4 Ad. & E. 645) ii. 546 
 
 , State V. (22 Iowa, 364) i. 494 
 
 V. Walker (3 Stew. 211) i. 424 
 
 V. Wilson (1 Des. 219) ii. 373, 504 
 
 V. Wilson (2 Dev. &. Bat. 
 
 377) ii. 397, 651 
 
 V. Wilson (5 Eng. Ec. 129) ii. 434 
 
 V. Wilson (31 Ens?. L. & Eq. 
 
 29; 1 H. L. Cas. 538-; 5 H. L. 
 
 Cas. 40) i. 636 
 
 Ixxii 
 
 Section 
 Wilson V. Wilson (2 Hag. Con. 
 203) ii- 384, 394 
 
 V. Wilson (3 Hag. Be. 329) 
 
 ii. 427 
 
 -V. Wilson (Poynter Mar. & 
 
 Div. 263) 
 
 ii. 894 
 
 . V. Wilson (Wright, 128) li. 354, 
 504, 628, 639 
 
 V. Wright (Dudley, Ga. 102) 
 
 ii. 527 
 Wilt V. Vickers, (8 Watts, 227) ii. 528 
 Wilton V. Webster (7 Car. & P. 
 
 198) ii- 621 
 
 Wing V. Hurlburt (15 Vt. 607) ii. 391 
 
 V. Taylor (2 Swab. & T. 
 
 278) i. 107, 108, 380 
 
 Winkley, State v. (14 N. H. 480) 
 
 i. 442, 479, 486, 495, 496 
 Winright, State o. (12 Misso. 
 
 410) i- 342 
 
 Winship v. Winship (1 C. E. 
 
 Green, 107) ii- 121 
 
 Winslow V. Winslow (7 Mass. 
 
 96) ii. 296 
 
 Winstone v. Winstone (2 Swab. 
 
 & T. 246) ii. 477, 492 
 
 Winter v. Winter (7 Philad. 869) 
 
 ii. 284 a 
 Wintercast v. Smith (4 Rawle, 
 
 177) ' ii. 714 
 
 Winters, People v. (2 Parker; 10) 
 
 i. 754 
 Wiseman, Rex v. (2 Smith, 617) 
 
 i. 786 
 Wiser v. Lockwood (42 Vt. 720) 
 
 i. 92 a, 137 a 
 Wistby V. Wistby (1 Connor & 
 
 Lawson, 537) ii. 239 
 
 Withipole's Case (Hob. 181) i. 112, 
 
 816 
 Woart V. Winnick (8 ¥. H. 478) 
 
 i. 671, 675; ii. 234 
 WodeU V. Coggeshall (2 Met. 89) 
 
 ii. 528 
 Wolf V. Wolf (Wright, 243) ii. 30 
 
 Wolvertou v. State (16 Ohio, 173) 
 
 i. 497, 500, 501 
 Wood V. Adams (35 N. H. 32) i. 345 
 
 V. Malin (5 Halst. 208) i. 402 
 
 V. Medley (1 Hag. Ec. 645) 
 
 ii. 309 
 
 V. O'KeUey (8 Cush. 406) i. 554 
 
 V. Simmons (20 Misso. 363) 
 
 ii. 714, 715 
 
 V. Waterville (4 Mass. 422) ii. 75 
 
 V. Watkinson (17 Conn. 500) 
 
 i. 402 
 
 V. Wood (8 Ala. 756) ii. 529 
 
 V. Wood (4 Hag. Ec. 138) 
 
 ii. 626 
 
 V. Wood (5 Ire. 674) i. 707, 791; 
 
 U. 90, 256, 259 
 
WRI 
 
 INDEX TO THE OASES CITED. 
 
 TAT 
 
 Sbotion 
 
 Wood V. "Wood (2 Paige, 108; 8 
 
 Wend. 357) i. 71, 74 ; il. 38, 49, 76, 
 
 80, 99, 302, 303, 334, 837, 341, 346, 
 
 347, 408, 604, 605, 606, 620, 642 
 
 V. Wood {2 Paige, 454; 8 
 
 Wend. 357) ii. 365, 406, 409 
 
 Woodard u. Bellamy (2 Root, 
 
 354) 1. 170 
 
 V. Spiller (1 Dana, 179) i. 540 
 
 Woodbridge u. Austin (2 Tyler, 
 
 364) i. 426, 427 
 
 Woodgate v. Taylor (2 Swab. & 
 
 T. 512) ii. 307 
 
 Woodrow V. O'Connor (28 Vt. 
 
 776) i. 411 
 
 Woodruff V. Woodruff (2 Pairf. 
 
 476) ii. 639 
 
 Woods u. Nabors (1 Stew. 172) 
 
 i. 463 
 
 I). Pindall (Wright, 507) i. 131 
 
 V. Woods (2 Curt. Be. 516) 
 
 i. 110, 315, 316, 468, 483, 497 ; 
 ii. 271, 311 
 Woodward o. Dowse (10 C. B. 
 
 N. s. 722) i. 628 
 
 , Beg. ^. (8Car. &P. 561) i. 542 
 
 Wood worth v. Woodworth (6 C. 
 
 E. Green, 251) ii. 284 a 
 
 Wooldridge v. Lucas (9 B. Monr. 
 
 49) ii. 351, 355 
 
 Wooley V. Wooley (Wright, 245) 
 
 ii. 409 
 WooUey v. WooUey (12 Ind. 663) 
 
 ii. 750 
 Woostert). Northrup (5 Wis. 245) 
 
 i. 586 
 Wooters v. Eeeny (12 La. An. 
 
 449) i. 582, 599 
 
 Worcester, Commonwealth v. (3 
 
 Pick. 462) i. 683 
 
 V. Merchant (14 Pick. 510) 
 
 ii. 527 
 Word V. Word (29 Ga. 281) ii. 365, 
 367, 678 
 Wordeu v. Worden (3 Edw. Ch. 
 
 387) ii. 406, 409, 461 
 
 Worsley v. Worsley (2 Lee, 572; 
 
 1 Hag. Ec. 734) ii. 33, 55 
 
 Worthy v. Worjhy (36 Ga. 45) 
 
 ii. 306 a 
 Wortly V. Watkinson (2 Lev. 
 
 254 ; 3 Keb. 660) i. 316 
 
 Wortman v. Wortman (17 Abb. 
 
 Pr. 66) ii. 753 c 
 
 Wray v. Cox (24 Ala. 337) 1. 557, 
 
 565, 617 
 
 V. Doe (10 Sm. & M. 452) i. 450 
 
 „. Wray (19 Ala. 522) i. 712 ; 
 
 ii. 306 
 
 V. Wray (33 Ala. 187) i. 565 ; 
 
 ii. 865, 568 
 Wright's Case (1 Bland, 101) ii. 398 
 
 Section 
 Wright u. Delafleld (23 Barb. 
 498) i. 412 
 
 V. EUwood (2 Hag. Ec. 598) 
 
 ii. 294 
 
 V. Elwood (1 Curt. Ec. 662) 
 
 i. 292; ii. 231, 243, 294 
 V. Hicks (12 Ga. 165) i. 448 
 
 V. Holdgate (3 Car. & K. 
 
 168) i. 447 
 
 V. Lanckton (19 Pick. 288) 
 
 i. 483 
 
 V. Rutherford (2 Lee, 266) ii. 309 
 
 ■ V. Wright (2 Des. 242) i. 688 
 
 V. Wright (1 Edw. Ch. 62) 
 
 ii. 406, 457, 461 
 
 V. Wright (2 Md. 429) i. 686 ; 
 
 ii. 355, 710 
 
 V. Wright (2 Mass. 109) ii. 560 
 
 V. Wright (24 Mich. 180) u. 156, 
 
 163 a, 170 6 
 
 V. Wright (15 Scotch Sess. 
 
 Cas, 767) i. 218 
 
 i;- Wright (8 Texas, 168) 
 
 ii. 60, 260, 386, 409, 447, 490, 
 496, 651 
 
 V. Wright (6 Texas, 3) i. 71, 
 
 724 ; ii. 46, 58, 262, 268, 605 
 
 V. Wright (6 Texas, 29) ii. 375, 
 
 439 
 
 V. Wright (7 Texas, 526) 
 
 ii. 510, 512 
 Wroxton, Rex v. (1 Nev. & M. 
 
 712 ; 4 B. & Ad. 640) i. 105, 287 
 Wyatt, Commonwealth u. (6 
 
 Rand. 694) i. 830 
 
 V. Judge (7 Port. 37) ii. 133 
 
 V. Wyatt (Wright, 149) ii. 677 
 
 Wycherly, Reg. v. (8 Car. & P. 
 
 262) 
 
 ii. 590 
 
 Wyckofft). Boggs (2 Halst. 188) i. 342 
 Wyles V. Gibbs (1 Redfleld, 882) 
 
 i. 114 
 Wylly V. Collins (9 Ga. 223) ii. 869 
 Wyman v. Campbell (6 Port. 
 
 219) ii. 133 
 
 Wynkoop v. Wynkoop (6 Wright, 
 
 Pa. 298) i. 566 
 
 X. V. Y. (34 Law J. N. s. P. & M. 
 
 81) ii. 588 6 
 
 Yallaly o. Yallaly (89 Misso. 
 
 490) ii. 343 a 
 
 Yarbrough v. Arnold (20 Ark. 
 
 592) i. 424 
 
 Yates V. Boen (2 Stra. 1104) ii. 566 
 
 V. Houston (3 Texas, 433) 
 
 i. 458, 454, 511 
 , United States v. (6 How. 
 
 U. S. 605) ii. 133 
 
 Ixxiii 
 
TOU 
 
 INDEX TO THE CASES CITED. 
 
 ZTC 
 
 Sbotion 
 Tates u. Yates (2Beasley, 280) ii. 128, 
 144, 682 
 Yeatman v. Yeatman (Law Rep. 
 
 IP, &M. 489) i. 778 0,805 a 
 V. Yeatman (Law Rep. 2 P. 
 
 & M. 187) ii. 82 
 
 Yelverton v. Longworth (2 
 
 Scotch Sess. Cas. 3d ser. H. 
 
 L. 49, 4 Macq. 745) i. 253, 261 
 
 V. Yelverton (Law Rep. 1 
 
 H. L. Sc. 218) ii. 755 
 V. Yelverton (1 Swab. & T. 
 
 574) ii. 120, 130, 131 
 
 Yeo V. Yeo (2 Dick. 498) ii. 353, 385 
 Young V. Foster (14 N. H. 114) 
 
 i. 441, 442, 443, 537, 543 
 
 V. Murphy (3 Ring. N. C. 
 
 54 ; 3 Scott, 379 ; 2 Hodges, 144) i. 170 
 
 V. Naylor (1 Hill Eq. 383) 
 
 i. 299, 663 ; ii. 291, 696, 727 
 
 Sectioit 
 Young V. State (16 Ind. 480) U. 546, 
 
 549 
 
 V. Young (4 Mass. 430) ii. 827 
 
 V. Young (3 N. H. 345) ii. 303 
 
 Younge v. Cassa (Ferg. 255) ii. 176 
 
 V. Purse (2 Jur. N. s. 864; 
 
 26 Law J. N. s. Chanc. 117) i. 294 
 
 Yule V. Yule (2 Stock. 138) i. 726 ; 
 
 ii. 356, 508 
 
 Zeigenfuss v. Zeigenfuss (21 Mich. 
 
 414) ii. 406 a 
 
 Zeigler v. David (23 Ala. 127) i. 554, 
 
 568, 570, 621 
 
 Zieber v. Roos (2 Yeates, 321) i. 344 
 
 Zule V. Zule (Saxton, 96) i. 299 ; 
 
 ii. 262, 317, 329, 876, 690 
 
 Zycklinski v. Zycklinski (2 Swab. 
 
 & T. 420) ii. 181 
 
 Ixxiv 
 
MAERIAGE AND DIYORCE. 
 
MARRIAGE AND DIYORCE. 
 
 BOOK I. 
 
 GENERAX VIEW OF THE LAW OF MARRIAGE AND 
 
 DIVORCE. 
 
 CHAPTER I. 
 
 THE LAW OP MARRIAGE. 
 
 § 1. All Opinions favor Marriage — Polygamy. — There ia 
 nothing connected with the social welfare of the world, con- 
 cerning which a greater harmony prevails in the opinions of 
 mankind, than the great underlying truths which pertain to 
 the law of marriage, considered as a civil institution. Every- 
 where the doctrine is received, that men and women should 
 not follow their mere animal instincts in their social relations 
 to one another, but that they should " pair off," to use an 
 expression applied to the birds of the air. In the eastern and 
 some other warm countries, there is rather tolerated than 
 advocated a permission to men to take to themselves more 
 wives than one, — a principle in the law, if such it may be 
 called, unknown in Christian countries, unless we deem the 
 sect of the Mormons to be a Christian sect. Yet, whether a 
 man is to have more wives than one or not, fidelity to the mar- 
 riage obligation is everywhere inculcated in theory, whatever 
 rqay be the practice among particular people. 
 
 § 2. Conflicts 'of Opinion — Scope of these Volumes — Word 
 "Marriage." — But when we descend from these general views 
 
 VOL. I, 1 1 
 
§ 3 ■ GENERAL VIEW. [BOOK J. 
 
 to. a more minute examination of the subject, we are met by 
 many conflicts of opinion, which have found their way into 
 these earthly laws of ours. It will not be expedient for us, 
 in these volumes, to undertake an exposition of all the par- 
 ticular provisions of law, relating to marriage, wherewith the 
 codes of the different countries in different ages have been bur- 
 dened. So much only of foreign and of ancient law will be 
 given as may be found necessary to illustrate the laws now 
 existing in the United States. One of the conflicts upon 
 this subject meets us at the very threshold of our inquiry, 
 namely. What is the proper definition of marriage ? Plainly, 
 the word marriage is used, and properly so, in two different 
 senses : the one denoting the act of entering into the marriage 
 relation ; the other, the relation itself. It is this latter sense 
 which we shall here undertake to ascertain. 
 
 § 3. Marriage defined. — MarriagCj therefore, — so the author 
 deems the term to be naost truly defined, — is the civil status 
 of one man and one woman united in law for life, under the obli- 
 gations to discharge, to each other and the community, those 
 duties wliich the community by its laws holds incumbent on 
 persons whose association is founded on the distinction of 
 sex. Its source is the law of nature, whence it has flowed 
 into the municipal laws of every civilized country, and into 
 the general law of nations. And since it can exist only in 
 pairs, and since none are compelled, but all who are capable 
 are permitted, to assume it, — marriage may be said to pro- 
 ceed from a civil contract between one man and one woman, 
 of the needful physical and civil capacity. While the con-'^ 
 tract is merely an executory agreement to marry, it differs 
 not essentially from other executory civil contracts ; it does 
 not superinduce the status ; and, on. its violation, an action 
 may be maintained by the party injured to recover his dam- 
 ages of the other/ But when the contract is executed in 
 what the law regards as a valid marriage, 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 otlier words, when the parties 
 2 
 
OHAP. l.j LAW OF MARRIAGE. § 5 
 
 agreed to be married, they undertook only to assume the 
 marital status ; and, on its assumption, the agreement, being 
 fully performed according to its terms, bound them no 
 longer.^ 
 
 § 4. Definition discussed — Other Definitions. — The books of 
 the law contain numerous definitions of marriage, and the 
 foregoing differs from every former one. It is free from some 
 of the objections which may well be urged against all former 
 definitions, whatever imperfections it has of its own. We 
 never find, in any definition, a perfect guide to the law, point- 
 ing us, as the mariner's compass does the mariner, to the true 
 course, wherever we may be on the wide ocean of investiga- 
 tion. Were we possessed of definitions of this description, an 
 author need only announce them, and his work would be done. 
 But, though a legal definition cannot be compared to the mari- 
 ner's compass, it may still be likened to figures and marks on 
 the compass-box, misleading when not correct. 
 
 §5. Continued — Contract — Religious Vow. — In law writ- 
 ings generally, marriage is denominated a contract ; yet it is 
 said to be more than a contract, and to differ from all other 
 contracts.^ The principal division of opinion has been, whether 
 it is to be deemed a civil contract, or a religious vow.^ The 
 Roman Catholic Church holds it to be a sacrament ; and, 
 though Protestants do not generally so esteem it, they account 
 it as of Divine origin, and invest it with the sanctions of reli- 
 gion.* Therefore it has been said, that, " according to juster 
 notions of the nature of the marriage contract, it is not merely 
 a civil or a 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 tlie religious 
 nature of marriage may engage the affections of the com- 
 munity, the law leaves this nature to the sole care of religion,^ 
 
 1 And see 1 Bishop Mar. Women, ter, 2 N. H. 268 ; Holmes v. Holmes, 
 § 23-26. 6 La. 463. 
 
 2 Townsend v. Griffin, 4 Harring. ' Lindo u. Belisario, 1 Hag. Con. 
 Del. 440 ; Maguire v. Maguire, 7 Dana, 216, 230, 4 Eug. Ec. 367, 373. 
 
 181, 183 ; Miles v. Chilton, 1 Robertson, < Story Confl. Laws, § 108, 209. 
 684, 694 ; Dickson v. Dickson, 1 Yerg. 5 Lord Stowell, in Lindo v. Beli- 
 110, 112. But see The State v. Pry, 4 sario, supra, 4 Eng. Ec. 374 ; Eornshill 
 Misso. 120, 179; Londonderry v. Ches- v. Murray, 1 Bland, 479. 
 
 6 1 Bl. Com. 433. 
 
§ 6 * GENERAL VIEW. [BOOK I. 
 
 and contemplates it only as a civil institution.^ Naturally, 
 therefore, to distinguish marriage as the law views it from 
 marriage as a religious rite, judges and text-writers have 
 hitherto, even in their definitions, almost uniformly designated 
 it by the term " contract," a " civil contract." Thus Shel- 
 ford says : " 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 woman, capa- 
 ble 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, it is said that " marriage is a contract having its origin 
 in the law of nature antecedent to all civil institutions, but 
 adopted by political society, and chai-ged thereby with various 
 civil obligations. It is founded on mutual consent, which is 
 the essence of all contracts ; and is entered into by two per- 
 sons of different sexes, with a view to their mutual comfort 
 and support, and for the procreation of children." ^ Other 
 definitions give the idea of contract a more subordinate posi- 
 tion. Thus Ayliffe defines : " Marriage is a lawful coupling 
 and joining together of a man and woman in one individual 
 state or society of life, during the lifetime of one of the par- 
 ties ; and this society, of life is contracted by the consent and 
 mutual good-will of the parties toward each other."* And 
 the authorities agree in distinguishing it from other species of 
 contract. 
 
 § 6. Marriage distinguished from Ordinary Contracts. — Some 
 of the peculiarities of marriage, as distinguished from ordinary 
 contracts, are forcibly stated by Lord Kobertson, a Scotch 
 judge, in a passage approvingly quoted by Judge Story ^ and 
 by Mr. Fraser.^ ■ " Marriage," he observes, " 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 
 
 1 Dumaresly v. Tishly, 3 A. K. * Ayl. Parer. 359. 
 
 Mar. 368; Jenkins v. Jenkins, 2 Dana, ^ Story Confl. Laws, § 109-111. 
 102. 6 1 Fras. Dom. Rel. 88. See also 
 
 2 Shelford Mar. & Div. 1. Shelford Mar. & Div. 16. 
 ^ Kogers Ec. Law, 2d ed. 595, tit. 
 
 Marriage. See also 1 Bl. Com. 433. 
 
 4 
 
CHAP. I.] LAW OP MARRIAGE. § 7 
 
 contract of marriage is the most important of all human trans- 
 actions. 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 confers the status of legitimacy on children born in 
 wedlock, with all the consequential rights, duties, and privileges 
 thence arising ; it gives rise to the relations of consanguinity 
 and affinity ; in short, it pervades the whole system of civil 
 society. Unlike other contracts, it cannot, in general, amongst 
 civilized nations, be dissolved by mutual consent ; and it sub- 
 sists 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 his part of the mutual contract. 
 No wonder that the rights, duties, 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." ^ 
 
 § 7. Continued. — Lord Bannatyne, another Scotch judge, 
 has observed : " 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 alto- 
 gether 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, altogether independent of the terms of the contract, 
 
 1 Lord Robertson, in Duntze u. Levett, Ferg. 68, 385, 397, 8 Eng. Ec. 360, 
 495, 502. 
 
 6 
 
§ 8 GENERAL VIEW. [BOOK I. 
 
 or the will of the parties at the time of entering into it." ^ 
 As forcibly illustrating the truth of the latter remark, we 
 may quote another by Lord Robertson, who says : " If a man 
 in this country were to confine his 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 [in Scotland] 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? " 
 
 § 8. Continued — Legislative Divorces — "Impairing Obligation 
 of Contracts." — Language similar to the foregoing has been 
 employed also in the American tribunals. Thus, in a Kentucky 
 case, Robertson, C. J., observed: " Marriage, though in one 
 sense a contract, — because, being both stipulatory and con- 
 sensual, it cannot be valid without the spontaneous concurrence 
 of two competent minds, — is, nevertheless, sui generis, and 
 unlike ordinary or commercial contracts. is publici juris; 
 because it establishes fundamental and most important domes- 
 tic relations. And, therefore, as every well-organized society 
 is essentially interested in the existence and harmony and 
 decorum of all its social relations, marriage, the most element- 
 ary 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 contracting par- 
 ties, but may be abrogated by the sovereign will, either with 
 or without tlie consent of both parties, whenerver 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 surren- 
 dered, or subjected to political restraint or foreign control, 
 consistently with the public welfare. And therefore 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 
 
 1 Lord Bannatyne, in Duntze v. kind, — that it stands alone, and can 
 Levett, Ferg. 401, 3 Eng. Ec. 505. be assimilated to no other contract 
 
 2 Lord Robertson, in Duntze v. whatever." Mr. Commissary Ross, in 
 Levett, Eerg. 399, 3 Eng. Ec. 504. " It Gordon v. Pye, Ferg. 276, 339, 3 Eng. 
 must be remembered, that marriage is Ec, 430, 468. 
 
 a contract altogether of a peculiar 
 
 6 
 
CHAP. I.] LAW OP MARRIAGE. § 10 
 
 the obligation of contracts. The obligation is created by the 
 public law, subject to the public will, and not to that of the 
 parties." ^ 
 
 § 9. Continued. — So, in the Supreme Court of Tennessee, it 
 was remarked : " By the English canon and ecclesiastical law, 
 this union of marriage is of a nature so widely differing from 
 ordinary contracts ; creating disabilities, and conferring privi- 
 leges, between husband and wife ; producing interests, attach- 
 ments, 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 in all societies, civilized, and not cor- 
 rupt, in all ages."^ And in a Delaware case the court said: 
 " The marriage 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 con- 
 tract ; it can be violated and annulled by law, which no other 
 contract can ; it cannot be determined by the will of the par- 
 ties, as any other contract may be ; and its rights and obli- 
 gations are derived rather from the law relating to it, than 
 from the contract itself."^ _ 
 
 §10. Continued. — In a more recent case, Ames, C. J., 
 delivering the opinion of the Rhode Island court on a question 
 of the right to take jurisdiction over a cause of divorce where 
 the defendant was not domiciled within the State, and where 
 also personal service on him could not be made, observed : 
 " Marriage, in the sense in which it is dealt with by a decree 
 of divorce, is not a contract, but one of the domestic relations. 
 In strictness, though formed by contract, it signifies the rela- 
 tion of husband and wife, deriving both its rights and duties 
 from a source higher than any contract of which the parties 
 are capable, and, as to these, uncontrollable by any contract 
 
 1 Maguire v. Maguire, 7 Dana, 181, Del. 440, 442. See further authorities 
 
 183, cited ante, § 5. That marriage is to be 
 
 '^ Dickson u. Dickson, 1 Yerg. 110, viewed rather as a status than as a 
 
 112, opinion by Catron, J. contract, see Noel a. Ewing, 9 Ind. 37, 
 
 3 Townsend v. GrifiSn, 4 Barring. 49, 80. 
 
 7 
 
§ 11 GENERAL VIEW. [BOOK I. 
 
 which they can make. When formed, this relation is no more 
 a contract than a ' fatherhood ' or ' sonship ' is a contract. It 
 is no more a contract than serfdom, slavery, and apprentice- 
 ship are contracts ; the latter of which it resembles in this, 
 that it is formed hy contract. To this relation there are two 
 parties, as to the others ; two or more interested, without 
 doubt, in the existence of the relation, and so interested in 
 its dissolution. These parties are placed by the relation in 
 a certain relative state or condition, under the law, as are 
 parents and children, masters and servants ; and, as every 
 nation or state has an exclusive sovereignty and jurisdiction 
 within its own territory, so it -has exclusively the right to 
 determine the domestic and social condition of the persons 
 domiciled within that territory. It may, except so far as 
 checked by constitution or treaty, create by law new rights 
 in, or impose new duties upon, the parties to these relations, 
 or lessen both rights and duties ; or abrogate them, and so the 
 legal obligation of the relation which involves them, altogether. 
 This it may do, with the exception above stated, as to some 
 relations, by law, when it wills ; declaring that the legal rela- 
 tion of master and slave, for instance, shall cease to exist 
 within its jurisdiction ; or for what cause or breaches of duty 
 in the relation, this, or the legal relation of husband and wife, 
 or of parent 'and child, may be restricted in its rights and 
 duties, or altogether dissolved, through the judicial inter- 
 vention of the courts." ^ 
 
 § 11. Continued. — Many more illustrations of the difference 
 between marriage viewed as a contract, and ordinary civil 
 contracts, have been given by judges and law writers. The 
 subject is perhaps suJBiciently elucidated, already ; but Mr. 
 Eraser, after making some pertinent observations of his own, 
 quotes Lord Stair as follows : " Obligations arising from vol- 
 untary engagement take their rule and substance from the will 
 of man, and may be framed and disposed of 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 marriage for a time, or take the power over 
 the wife from the husband and place it in her or any other, or 
 
 1 Ditson V. Ditson, 4 R. I. 87, 101, 102. 
 8 
 
CHAP. I.] LAW OP MARRIAGE. § 12 
 
 the right of provision and protection of the wife from her 
 husband, and so of all the i-est; which evidently [listen to 
 this singular logic ! ] demonstrateth, tliat it is not a human 
 but a Divine contract." ^ 
 
 § 12. Marriage an Institution of Society — Consequences of the 
 Doctrine. — The institution of marriage, commencing with the 
 race, and attending man in all periods and in all countries 
 of his existence, has ever been considered the particular glory 
 of the social system. It has shone forth, in dark countries 
 and in dark periods of the world, a bright luminary on his 
 horizon. And but for this institution, all that is valuable, 
 virtuous, and desirable in human existence, would long since 
 have faded away in the general retrograde of the race, and in 
 the perilous darkness in which its joys and hopes would have 
 been wrecked together. And as man has gone up in the path 
 of his improvement, and a purer light has surrounded him, 
 still has this institution of marriage, receiving accessions of 
 glory with every step of the race toward its ultimate glory, 
 remained the first among the institutions of human society. 
 And the idea, that any government could, consistently with 
 the general well-being, permit this institution to become 
 merely a thing of bargain between men and women, and not 
 regulate it by its own power, is too absurd to require a word 
 of refutation. If, then, marriage is to be cherished by the 
 government, as the first and choicest object of its regard, 
 surely the government will retain the right to regulate what- 
 ever pertains to marriage in its own way, and to modify the 
 incidents of the relation from time to time as itself pleases. 
 And while it will hold this right absolute, not to be controlled 
 by the dictation of individuals, it will thus promote, in the 
 highest degree, individual interests. Consulting individual 
 interests, however, and looking to the first principles of natural 
 equity, it will not wantonly adopt any rule which is inherently 
 oppressive toward its subjects. It will consequently cause its 
 subjects to assume the matrimonial status only when they 
 consent to assume it ; and it will not ruthlessly interfere with 
 such mere incidents of the relation as the mutual property 
 rights of the parties. But the fact, that parties enter into 
 
 1 1 Fras. Dom, Eel. 89, referring to Stair, 1, 4, 1, 
 
 9 
 
§ 14 GENESAL VIEW. [BOOK I. 
 
 marriage only over the threshold of a contract, furnishes all 
 the foundation there exists fgr the exceedingly loose definition 
 which terms it a contract. 
 
 § 13. Continued — All Presumptions favor Marriage. — What 
 is said in the last section conducts us to tlie further observation, 
 that, though marriage is thus only a political and social status, 
 viewed as the law views it ; still, as seen from the religious 
 and moral stand-point, it is an earthly and even a heavenly 
 interest transcending all other interests of a social kind. It 
 is, moreoi7er, a thing of natural right ; that is, all persons are 
 naturally entitled to enter into the marriage relation, at ' a 
 proper time and under proper circumstances. Therefore 
 every court,^ in considering questions not clearly settled or 
 defined in the law, should lean toward this institution of mar- 
 riage ; holding, consequently, all persons to be married who, 
 living in the way of husband and wife, may accordingly be 
 presumed to have intended entering into the relation, unless 
 the rule of law which is set up to prevent this conclusion is 
 distinct and absolute, or some impediment of nature inter- 
 venes. This proposition is indeed sustained in part by the 
 well-recognized maxim. Semper proesumitur pro matrimonial a 
 maxim too often practically overlooked by our tribunals ; but, 
 further than this, in all cases the presumptions both of law 
 and of fact should be carried to the very verge to uphold a 
 marriage, where marriage was meant by the parties. This 
 particular topic will be further considered, when we come to 
 treat, in subsequent pages, of the law of the evidence of mar- 
 riage.'^ 
 
 § 14. Property Rights. — The law may, and to some extent 
 does, allow the parties to regulate, by an antenuptial agree- 
 ment, to survive the assumption of the status, the rights of 
 property between themselves.^ And we may lay down the 
 broad proposition, that a difference exists between the mar- 
 riage status, and those property rights which are attendant 
 upon, and more or less closely connected with it. Lord 
 Stowell has well remarked, that " rights of property are 
 
 1 Piers V. Piers, 2 H. L. Cas. 331 ; 3 Op this subject, consult the au- 
 post, § 457. thor's work ou the law of " Married 
 
 2 See post, § 457-459. Women." 
 
 10 
 
CHAP l.J LAW OP MARRIAGE. § 15 
 
 attached to it on very different principles in different coun- 
 tries ; in some, there is a communio honorum ; in some, each 
 retain their separate property ; by our law it is vested in the 
 husband. Marriage may be good independent of any con- 
 siderations of property, and the vinculum fidei may well sub- 
 sist without them." ^ The distinction is fully established in 
 the American courts.^ And we shall find, as we pursue our 
 investigations, that it is a distinction of the very highest 
 importance in the law, whether viewed practically or theo- 
 retically. 
 
 § 15. Continued — How Antenuptial Agreements regarded — 
 The Nude Status. — While, however, the law thus permits the 
 married persons to regulate somewhat, by an antenuptial agree- 
 ment, their property rights with each other, it furnishes the 
 rule to be applied in the absence of such an agreement, and 
 presumes, that, where they failed to establish a different rule 
 of their own, they mutually consented to be governed by the 
 rule of the law. And we may well regard an agreement of 
 this kind, and the rule of law to govern the parties in the 
 absence of the agreement, and perhaps all the rules which 
 concern their relations to each other respecting mere prop- 
 erty, as not belonging to the status itself; but rather as being 
 the drapery hung about the status, giving it ornament and 
 hue, while really forming of it no part. Denude the status 
 of this drapery, and nothing remains but the shadow of its 
 origin lying upon our memories which bears even the simili- 
 tude of a contract. No suit at law or in equity, sounding in 
 contract, and going to the marital relation itself, can be main- 
 tained between husband and wife -during their lifetime ; 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 known to the law, not merely where 
 the remedy is suspended for the want of a tribunal competent 
 to administer it, there is no right* The suit for divorce, we 
 
 1 Lindo V. Belisario, 1 Hag. Con. Townsend v. Griffin, 4 Harring. Del. 
 216, 231, 4 Eng. Ec. 36T, 374. 440; Sanford v. Sanford, 5 Day, 853. 
 
 2 Holmes v. Holmes, 4 Barb. 295, ' And see McCormick v. MoCor- 
 301 ; Maguire v. Maguire, 7 Dana, mick, 7 Leigh, 66 ; _Shaw v. Thompson, 
 181 ; Harding v. Alden, 9 Greenl. 140 ; 16 Pick. 198. 
 
 Crane v. Meginnis, 1 Gill & J. 463; * See Holmes u. Holmes, 4 Barb. 
 
 11 
 
§ 18 GENERAL VIEW. [bOOK I. 
 
 shall hereafter see, is not an action upon contract, but a pro- 
 ceeding sui generis, founded on the violation of duties enjoined 
 by law, and therefore resembling more an action of tort than 
 of contract.^ 
 
 § 16. Further Views of Marriage as a Status — Parent and 
 Child — Guardian and Ward. — The husband is under obliga- 
 tion to support his wife ; so is he to support his children. 
 The obligation in neither case is one of contract, but of law. 
 The relation of parent and child, equally with that of husband 
 and wife, from which the former proceeds, is a civil status ; 
 and a strong resemblance exists between the legal characters 
 of these two relations, much stronger than between either of 
 them and the relation of parties to ordinary contracts. 
 Another similitude is that of guardian and ward ; the guardian- 
 ship being assumed voluntarily, while the mutual obligations 
 and duties it imposes are created by law. 
 
 § 17. Continued. — It is not surprising, therefore, that the 
 sagacious mind of Judge Story prompted him to pen the fol- 
 lowing note, found in his volume on the Conflict of Laws : " I 
 have throughout," he says, " 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 something 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, char- 
 acter, operation, and extent of obligation, different from what 
 belong to ordinary contracts." ^ Again he says : " Marriage 
 is not treated as a mere contract between the parties, subjeOt, 
 as to its continuance, dissolution, and effects, to their mere 
 pleasure and intentions. But it is treated as a civil institu- 
 tion, the most interesting and important in its nature of any 
 in society." ^ 
 
 § 18. Importance of thus changing the Definition of Marriage. 
 
 295, 301, 302. " It Is a settled and inva- concerning which see Broom. Leg. 
 
 riable principle in the laws of England, Max. 146. 
 
 that every right when withheld must i Vol. II. § 230-235. 
 
 have a remedy, and every injury its -2 Story Confl. Laws, § 108, note. 
 
 proper redress." 3 Bl. Com. 109. Ubi 3 gtory Confl. Laws, § 200. 
 
 jus ibi remedium, is a maxim of the law, 
 
 12 
 
CHAP. I.] LAW OF MAREIAGB. § 19 
 
 — In England and Continental Europe, little inconvenience 
 can result from designating a perfected marriage by the word 
 contract, rather than status ; for the jurists of those countries 
 are not troubled with many of the peculiar questions of con- 
 stitutional law and of the conflict of laws relating to divorce, 
 which, arising under the constitutions of the United States 
 and of the several States of this Union, have proved more 
 embarrassing than almost any other to our courts, and have led 
 to irreconcilable diversities of decision. But no one can read' 
 the conflicting decisions of the American tribunals on this sub- 
 ject without perceiving, that the chief embarrassment has 
 arisen from the tendency to apply the rules governing con- 
 tracts to the status of marriage, owing to the fact of marriage 
 having been so commonly defined by courts and jurists as being 
 a contract. And no learned inquirer can fail to perceive, that 
 those judges who have looked most completely through and 
 beyond the written definitions of marriage, to the thing itself, 
 have drawn rules best calculated to harmonize conflicting 
 interests, preserve the rights of the individual State without 
 interfering with those of other States or of the general govern- 
 ment, and redress the wrongs of citizens. Definitions are not 
 necessarily law ; and legal writers are bound to reform defini- 
 tions, as lexicographers do, so that they may truly describe 
 the object intended. 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,i according to the current of 
 the authorities, inaccurate ; since they further declare, that it 
 differs in many particulars from other contracts. And when 
 the differences are pointed out, we find that they have covered 
 every quality of the marriage, and left uncovered nothing of 
 the contract. All is submerged in the status. To term mar- 
 riage, therefore, a contract, is as great a practical inconven- 
 ience as to call a certain 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. 
 
 § 19. How in these Pages — Distinctions. — Throughout these 
 1 Ante, § 5 et seq. 
 
 13 
 
§ 19 GENERAL VIEW. [BOOK I. 
 
 pages, therefore, the relation of marriage will be designated by 
 the words status of marriage, as signifying the same thing 
 which is usually meant by the phrase " contract of marriage." 
 And although this greater accuracy of expression will not 
 preclude the necessity of entering into extended statements of 
 ^ the law, it will enable the writer to make his statements more 
 accurately apprehended by the reader, than he could readily 
 do by employing a word whose intrinsic meaning is, as we have 
 seen, entirely different from any idea which any author who 
 might use the word would desire his readers to derive from its 
 use. At the same time, while the author discards the expres- 
 sion " Contract of marriage," as denoting the status, he retains 
 it when he has occasion to describe what is accurately described 
 by the expression. . For, in the language of Bigelow, J., sitting 
 in the Massachusetts court — " Whatever question or contro- 
 versy may exist among legal writers and jurists concerning the 
 nature of the relation subsisting between husband and wife 
 after marriage, — whether the rights and liabilities of the par- 
 ties are then to be regulated and governed by the principles 
 applicable to all civil contracts, or the contract is to be con- 
 sidered as merged in the higher nature of the status created by 
 the agreement of the parties, — all the authorities concur in 
 the conclusion that marriage has its origin and foundation 
 in a purely civil" contract."^ To constitute the status, thereT 
 must first be a contract ; as, to constitute a butterfly, there 
 must first be a worm.^ ' There are various forms of the agree- ' 
 ment to marry,! or the agreement of marriage : ! it may be an , 
 agreement to marry at a particular timh, or an agreement 
 of present marriag^ ; the latter agreement may amount to a 
 present marriage, or it may not ; but, in either case such 
 agreement is truly a contract of marriage. In a state of nature, 
 observes Lord Stowell, the contract of present marriage alone, 
 without form or ceremony superadded, constitutes of itself 
 complete marriage.^ But the laws of many, and perhaps most, 
 civilized countries have added other preliminaries ; though 
 philosophically they may all be resolved into this one, since the, 
 law does not recognize as a contract what is entered into con- 
 
 1 Little V. Little, 13 Gray, 264, 266. 3 Li„do v. Belisario, 1 Hag. Con. 
 
 2 Ante, § 3, 12, 18. 216, 230, 4 Eng. Ec. 367, 374. 
 
 14 
 
CHAP. II.] LAW OF DIVOECE. § 21 
 
 trary to law. What are the provisions of law regulating, in 
 our country, the entering into of that contract which superin- 
 duces the status of marriage, is a question which will occupy 
 several chapters in the present volume.^ 
 
 § 20. Matrimonial Forms — HvHa of Inconsiderate Legisla- 
 tion. — These preliminary views will suffice for this chapter. 
 Yet the writer cannot dismiss the chapter witliout adding here, 
 in advance, his own personal protest against certain doctrines 
 which, rather of legislation than of law, have wrouglit great 
 havoc with marriage in England, and somewhat threaten our 
 own country. There was a time when the Anglo-Saxon race, 
 thougli rude and uncultivated in modern chicanery, never 
 inflicted the disgrace of concubinage on a woman who lived 
 with one man, and one man only, as his wife, and bore him 
 children, unless the man was of too near affinity or consan- 
 guinity to her, or unless he had another wife to whom he was 
 earlier married. But in these days of modern refinement, 
 many an Anglo-Saxon woman learns, or her offspring after she 
 is dead learns, that some slip in the form of marriage has 
 made her a sort of select strumpet, and her children it has 
 made bastards. Men who like to deceive honest women, and 
 men who value riches in a wife, or a settlement, more highly 
 than true marriage, admire this ; and they consider the Scotch 
 people, who do not like it, and the people of some of our States, 
 who also do not like it, to be, by reason of their want of love for 
 the refinement, almost barbarians. May barbarism, if this is 
 such, long prevail in the United States ! 
 
 CHAPTER II. 
 
 THE LAW OP DIVOECE. 
 
 § 21. Diversities of Opinion — Introductory Views. — Though 
 there is, as we have seen,'^ a general concurrence of opinion 
 throughout the world in the doctrine that man should exist, 
 1 Post, § 124-840. 2 Ante, § 1. 
 
 i5 . 
 
§ 23 GENERAL VIEW. ' [BOOK I. 
 
 male and female, in pairs ; still, there is a wide diversity of 
 sentiment upon the further question, — For what causes shall 
 the relation of marriage be dissolved, and who, in each par- 
 ticular instance, shall judge of the sufficiency of the causes or 
 facts alleged ? It is not the plan of the author to enter, in his 
 law books, much into discussions of what the law should be, 
 in distinction from what .the law is ; yet it seems necessary, in 
 this instance, to depart somewhat from the genei'al plan. The 
 departure, however, is only apparent, not real ; because, in 
 treating of this question of divorce, we are obliged frequently 
 to inquire after the true policy of the law, in order to deter- 
 mine what the law truly is where judges differ. 
 
 § 22. As to the History of Divorce Law. — In the first three 
 editions of this work, the author traced, somewhat at large, 
 the history of opinions and of law upon this question of divorce. 
 Yet the historical sketch as thus traced lay too much in out- 
 line, descending too little into those minuter things whicli 
 distinguish the living light from its dead and buried counter- 
 feit, to be of especial practical service to the lawyers of the 
 present day. Therefore, as it would too much increase the 
 size of the work to fill up the outline, the sections devoted to 
 this topic are omitted from the later editions ; not, however, 
 to the entire exclusion of historical reference. , 
 
 § 23. Old Ideas and Practices — Early Roman La-ws. — 4^here 
 are men in all ages who weep for the degeneracy of their 
 times, and sigh for the return of the old, which they deepi to 
 be better than the new^VSome there are with us, who mourn 
 to see unhappy marriages dissolved, and long for the days of 
 early Rome to come to our Republic ; " for," they tell us, " in 
 those blessed days men and women were married once for all, 
 and they never sought divorce." But could we see the true 
 picture of those early days of Rome, we might perhaps exclaim, 
 " The wo"rld is moving on ; let us take what we have in the 
 present with thankfulness, and when we sigh, sigh rather for 
 the future than the past." We know, indeed, that the history 
 of early Rome, and her early law, are together involved in 
 obscurity. But the historical theory now prevailing is, that, 
 although the twelve tables allowed considerable latitude of 
 divorce, yet in consequence of great purity in the public morals, 
 16 
 
CHAP. II.] LAW OP DIVORCE. § 24 
 
 and a strong sentiment against the dissolution of marriage, no 
 instance of divorce occurred daring the first five hundred years 
 of Roman history ! 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 much loved, because of her 
 barrenness ; being impelled thereto by an oath which the cen- 
 sors had compelled him to take, that he would give children 
 to the republic. Be this, however, as it may, divorces became 
 afterward common at Rome ; and they were allowed pretty 
 much at the pleasure of either of the parties.^ And there 
 have been, even down to the present day, men wise enough 
 to doubt, whether it is really true that during five hundred 
 years of the Roman republic the law allowed of divorce, yet 
 no unhappy couple was ever found to ask for such a remedy.^ 
 Still, the fiction serves an end ; for we frequently meet with 
 the argument, supposed to militate against the policy of per- 
 mitting divorce, that Rome in her palmiest ages had no 
 divorces, though her laws allowed them. One cannot fail of 
 seeing how much more heavily this argument bears the other 
 way ; because it recognizes the fact, palpable in reason also, 
 that corruption in the public depends, not on the laws enacted 
 for the relief of persons who have received injury from the 
 corruption, but on other things. 
 
 § 24. Later Roman Law — Origin of the Notion of Indissolu- 
 bility. — Tracing the Roman law down from those early times, 
 we find, that, during all the ages in which its light is dis- 
 tinctly discernible, it allowed greater or less latitude of divorce ; 
 and the doctrine of indissolubility was engrafted on the law, 
 not by the wise men who at any time swayed the civil affairs 
 of Rome, but by the Roman Church, as a religious tenet. 
 This doctrine is believed to have been first made a general 
 tenet of the church by the Council of Trent, in the year 1653. 
 It was never accepted by the Greek or Eastern Church.^ 
 
 1 Rees Cyc. art. Divorce ; Head v. 3 gee further, on the law of diyorce, 
 Head, 2 Kelly, 191, 208, Nisbet, J. ; and its history in different ages and 
 Encyc. Amer. art. Divorce; 1 Burge countries, 1 Fras. Dom. Eel. 647 et 
 Col. & For. Laws, 641. seq. ; Tebb's Essay on Adultery and 
 
 2 Brower de Jure Connub. p. 730, Divorce, passim ; Eees Cyc. art. Di- 
 731 ; Taylor Civ. Law, 359. See 1 vorce ; Encyc. Amer. Id. ; Brewster's 
 Fras. Dom. Eel. 646; 2 Kent Com. Encyc. Id.; 2 Kent Com. 102 et seq. ; 
 103. Page on Divorce, 1 et seq. ; Eogers 
 
 vol.. I. 2 17 
 
§25 
 
 GENERAL VIEW. 
 
 [book I. 
 
 § 25. Mosaic Law — Law of the New Testament — Adultery — 
 Desertion. — The Mosaic law, as generally interpreted, allowed 
 the husband to be the sole judge of the causes for which he 
 might put away his wife ; and this was equivalent to permitting 
 him to divorce her at pleasure.^ The opinion is somewhat 
 current among Protestant divines, that this liberty of divorce 
 was intended by Christ to be restricted to the single cause of 
 adultery ; ^ the Church of Rome holding, that not even adultery 
 
 Ec. Law, 2d ed. 359, note ; 1 Lane's 
 Modem Egypt, 193 et seq. ; 1 Burge 
 Col. & For. Laws, 6i0. In Hanks v. 
 Hanks, 3 Edw. Ch. 469, is a sketch of 
 the history of divorce in France. In 
 Burtis V. Burtis, 1 Hopkins, 557, is a 
 history of divorce in the State of New 
 York. As to North CaroUna, see 1 
 Car. Law Eepos. 137, 413 ; 2 ib. 129 ; 
 Colher v. Collier, 1 Dev. Eq. 352; 
 Dickinson v. Dickinson, 3 Murph. 327. 
 As to New Hampshire, see Parsons v. 
 Parsons, 9 N. H. 309 ; Clark v. Clark, 
 10 N. H. 380. 
 
 1 Deut. xxiv. 1. The words are, 
 " because he has found some unclean- 
 ness in her." Some have supposed, 
 that they authorize divorce merely in 
 the case of her adultery; but as, by 
 the same law, adultery was to be pun- 
 ished hy death, a broader meaning 
 must evidently be given to these words. 
 Eees Cyc. art. Divorce. 
 
 2 Matt. V. 32. The words are: 
 " Whosoever shall put away his wife, 
 saving for the cause of fornication, 
 causeth her to commit adultery; and 
 whosoever shall marry her that is di- 
 vorced committeth adultery." I do 
 not propose to give any views of my 
 own upon the interpretation of this 
 passage of Scripture ; neither am I of 
 those who hold, that God sent Script- 
 ure to us to serve either as a provoca- 
 tive to hair-sphtting, on the one hand, 
 or as a band with which to bind our 
 common sense, on the other hand. 
 Milton contends, that by this language 
 Christ did not intend to change at all 
 the Jewish law on the subject of di- 
 vorce. In support of this view, he 
 cites the seventeenth verse of the same 
 chapter, where it is said, that he did 
 
 18 
 
 not come to destroy the law, but to 
 fulfil. It is observable, that both in 
 the original Greek, and in the English 
 translation, the offence spoken of is 
 fornication, which could be committed 
 only before marriage ; but no one sup- 
 poses antenuptial incontinence to be a 
 just ground of divorce ; consequently 
 we must seek some other, perhaps 
 metaphorical, meaning for the word. 
 Milton quotes Grotius, who " shows, 
 that fornication is taken in Scripture 
 for such a continual headstrong be- 
 havior as tends to plain contempt of 
 the husband, and proves it out of 
 Judges xix. 2, where the Levite's wife 
 is said to have played the whore against 
 him, which Josephus and the Septua- 
 gint, with the Chaldean, interpret only 
 of stubbornness and rebellion against 
 her hushand ; and to this," he contin- 
 ues, " I add, that Kimchi and the two 
 other rabbles wKo gloss the text, are 
 in the same opinion." That literal 
 adultery was not meant by this word 
 fornication, he argues from the further 
 consideration, that adultery was pun- 
 ishable by death, and so divorce could 
 be of no importance in such a case. 
 Milton's Prose Works, London ed. of 
 1848, hy St. John, vol. 3, p. 256, 396. 
 Dr. Taylor considers, that the word in 
 the original " can with no propriety be 
 rendered adultery." But assuming 
 that it can, he adds : "A very sensible 
 writer now before me has given the 
 word this turn ; namely, that no cause 
 for separation could be good, except 
 adultery, or such facts as had the na- 
 ture, the rationem, of adultery ; such as 
 were like it, tended to it, or, in short, 
 would finally defeat and interrupt the 
 destined end of this institution, as adul- 
 
CHAP. 11.] 
 
 LAW OP DIVORCE. 
 
 §25 
 
 is sufficient without the consent of the Pope. But other Prot- 
 estants, and, as we have seen, the Greek Church, permit a more 
 
 tery actually did." And he remarks 
 of some of the words of Christ in re- 
 straint of divorce, as reported in the 
 Evangelists, that they seem to allow of 
 no exception, hut are to be taken in a 
 general sense, subject, like all other 
 general words, to exceptions. Others, 
 " immediately following, admit of one 
 [exception] at least, which is said to 
 be that of fornication. To which may 
 be added, that hia Apostle, who spake 
 by his authority, has added another; 
 namely, that of malicious desertion, if 
 indeed it be anotlier, and not compre- 
 hended under the former." Elements 
 of the Civil Law, p. 351. But still, 
 assuming the word fornication to mean 
 adultery here, it is further suggested, 
 that Christ, addressing a people among 
 whom polygamy was allowed, — so 
 that when the wife ceased to discharge, 
 toward her husband, the duties enjoined 
 by marriage, she ceased in fact to be a 
 wife, and he could marry another, and 
 thus the question of his right to divorce 
 her could not arise, — had reference, in 
 the above passage, solely to what was 
 really asked of him, as he knew the 
 matter to lie in the mind of his ques- 
 tioners ; namely, whether a man might 
 put away a wife who adhered to him, and 
 discharged her duties as wife ; and he 
 said, that, for no cause but her adultery 
 (which might be committed while she 
 still discharged also her duties to her 
 husband), could she be rightfully di- 
 vorced, — leaving entirely out of his 
 contemplation the case of one who re- 
 fused to conduct as wife to her hus- 
 band. Martin Bucer, a man of great 
 learning in the Reformed Church, is 
 translated by Milton as follows : " No 
 man who is not very contentious will 
 deny, that the Pharisees asked our 
 Lord, whether it was lawful to put 
 away such a wife as was truly, and 
 according to God's law, to be counted 
 a wife ; that is, such a one as would 
 dwell with her husband, and both would 
 and' could perform the necessary duties 
 
 of wedlock tolerably. But she who will 
 not dwell with her husband is not put 
 away by him, but goes of herself; and 
 she who denies to be a meet help, or 
 to be so hath made herself unfit by 
 open misdemeanors, or through incura- 
 ble impotencies cannot be able, is not 
 by the law of God to be esteemed a 
 wife ; as hath been shown both from 
 the first institution, and other places of 
 Scripture. Neither certainly would 
 the Pharisees propound a question con- 
 cerning such an unconjugal wife ; for 
 their depravation of the law had brought 
 them to that pass, as to think a man 
 had a right to put away his wife for 
 any cause, though never so slight. 
 Since, therefpre, it is manifest, that 
 Christ answered the Pharisees concern- 
 ing a fit and meet wife according to 
 the law of God, whom he forbade to 
 divorce for any cause but fornication ; 
 who sees not that it is a wickedness so 
 to wrest and extend that answer of 
 his, as if it forbade to divorce her who 
 hath already forsaken, or hath lost the 
 place and dignity of a wife by de- 
 served infamy, or hath undertaken to 
 be that which she hath not natural 
 ability to be ■? " 3 Milton's Prose 
 Works, 310. These views, it is per- 
 ceived, are aU on one side of the ques- 
 tion. They are purposely so ; because 
 the other side is sufficiently represented 
 every day among us. And I have 
 selected them from a mass of matter 
 tending to the same conclusion, not to 
 argue the question, or, as I have said, 
 to intimate an opinion of my own upon 
 it ; hut merely to show those who cap- 
 tiously declaim against all legislation 
 authorizing divorce for causes other 
 than adultery, as being a blow aimed 
 at Christianity itself, that, whoever is 
 right, there is still another view, and 
 other people have religious scruples as 
 well as they. "Who," says Milton, 
 " shall answer for the perishing of all 
 those souls, perishing by stubborn expo- 
 sitions of peculiar and inferior precepts, 
 
 19 
 
§26 
 
 GENERAL VIEW. 
 
 [book I. 
 
 equitable interpretation of the New Testament ; and, though 
 they do not favor divorce from whim or caprice, they deem 
 some causes other than adultery to be allowable. 
 
 § 26. Desertion, continued. — Indeed, it is not generally, 
 though sometimes, questioned among Protestants, that dis- 
 solutions of the marriage for absolute and total desertion are 
 expressly sanctioned in the New Testament.^ The Scotch 
 statute, authorizing divorce for desertion, professed in its 
 preamble to be declaratory of the law as it always had been 
 held since the Reformation ; and, though there is doubt 
 whether this view of the previous law is correct, still, beyond 
 doubt, the statute is expressive of the religious opinion always 
 prevalent in Protestant Scotland.^ 
 
 against the general and supreme rule of 
 charity." 3 Prose Works, 212. 
 
 1 1 Cor. vii. 15. See the commen- 
 taries of Scott and others on this text. 
 President Dwight, of Yale College, 
 A. D. 1816, preached a sermon before 
 the " executive, and a great part of 
 the legislative, of the State " of Con- 
 necticut, a State always liberal in 
 granting divorces, in which he took 
 strong ground against all dissolutions 
 of marriage, except for adultery. But 
 he admitted, that " several respectable 
 commentators, and among them Poole, 
 Doddridge, and Macknight," consider 
 divorce for desertion justified by the 
 text in Corinthians above cited. On 
 a general view of the legislative and 
 judicial practice of Connecticut in re- 
 spect to divorce, he says : " At this 
 time, the progress of this evil is alarm- 
 ing and terrible. In this town [New 
 Haven], within five years, more than 
 fifty divorces have been granted ; at an 
 average calculation, more than four 
 hundred in the whole State during this 
 period ; that is, one out of every hun- 
 dred married pairs. "What a plain 
 proof is here of the baleful influence of 
 this corruption on a people otherwise 
 remarkably distinguished for their in- 
 telligence, morals, and religion ! Hap- 
 pily, a strenuous opposition is begin- 
 ning to this anti-seriptural law, which 
 it may be fairly hoped will soon ter- 
 
 20 
 
 minate in its final revocation.'' 1 
 Dwight's Theology, 37 ; 3 ib. 425, 438. 
 This hope of the learned divine has, 
 however, never been realized ; and in 
 Connecticut divorces have continued 
 to be granted by the courts, for several 
 causes prescribed by statute, and, 
 where the statute has appeared inade- 
 quate to meet the equity of a meritori- 
 ous case, the legislature has dissolved 
 the marriage by special act ; till, at last, 
 the general jurisdiction spoken of in a 
 subsequent chapter (post, § 827 et 
 seq.), to grant divorces very much in 
 the discretion of the judges, has been 
 conferred on the courts. The divorces 
 have all been from the bond of matri- 
 mony (Starr v. Pease, 8 Conn. 541), 
 except only a single legislative onfe, 
 which, under the special circumstances 
 of the case, was from bed and board ; 
 a " precedent," says Judge Swift, 
 " not to be imitated." 1 Swift's Sys- 
 tem, 193. Notwithstanding this liberty 
 of divorce, or in consequence of it, 
 there is no State in the Union in which 
 domestic felicity and purity, unblem- 
 ished morals, and matrimonial concord 
 and virtue, more abound than in Con- 
 necticut, which is justly termed " the 
 land of steady habits." 
 
 2 1 Fras. Dom. Eel. 654, 655, 677, 
 et. seq.; Shelford Mar. & Div. 368; 
 Brewster Encyc. art. Divorce. 
 
CHAP. II.] LAW OP DIVORCE. § 29 
 
 § 27. Marriage Indissoluble — Roman Church. — In the strug- 
 gles between truth and error, between light and darkness, 
 between the unattainable wished for and the practical realized, 
 between the prophetic good and the actual evil, — the minds 
 of men sway often from extreme to extreme, in the tempest of 
 this life of aspiration on the one hand, and of earthly substance 
 on the other. It is not strange, therefore, that the Eoman 
 Church, looking over the condition of man as concerns his 
 matrimonial relations, should have greatly desired, for his 
 good, to promote in him the unattainable wished for, in con- 
 trast with what she had seen of the practical in heathen coun- 
 tries. And it is not surprising, that she should have forgotten 
 how impossible it is for an iron outward rule to control the 
 inward. Let us not, then, seeking for the middle course of 
 light and truth, repeat, even in our own inner minds, the 
 harsh charge often brought against her by Protestants, of hav- 
 ing fettered divorce in order to fill her coffers by undoing the 
 marriage band for the rich, who would pay her largely of their 
 money. 
 
 § 28. Continued — Dispensations of the Pope — Matrimonial 
 Impediments. — It is true indeed, that, though the church 
 made marriage indissoluble, she did permit the Pope, as God's 
 vicegerent on earth, to loose, when his Holiness saw proper, 
 the matrimonial tie ; and that so she obtained revenue. But 
 on the other hand also, she permitted ihe courts of ecclesiasti- 
 cal jurisdiction to pronounce marriages null, on account of 
 impediments created by her to an extent quite ridiculous on 
 any other theory than that of their having been brought into 
 existence for this very purpose. And when, as in subsequent 
 pages we shall see, a mere confession of the impediment served 
 to establish it in court, no great complaint could arise in the 
 minds of unscrupulous laymen, that the church imposed on 
 them too heavy a burden of matrimonial law. But even this 
 facility, given by the church to persons desirous of freeing 
 themselves from unpleasant matrimonial connections, shows 
 only how, in fact, the unrest of her iron rule of indissolubility 
 operated in the minds of ecclesiastics ; it is a testimony, awk- 
 ward indeed, to the injustice of the rule. 
 
 § 29. Continued — Divorce from Bed and Board — Restitution of 
 
 21 
 
§ 29 GENERAL VIEW. [BOOK I. 
 
 Conjugal Rights by Suit. — Another testimony of the same kind 
 exists in the liberty she gave of what is called divorce from 
 bed and board. This proceeding, having, at least, no direct 
 authority in Scripture ; characterized by Lord Stowell as cast; 
 ing out the parties " in the undefined 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 the commission of adultery, 
 unless they possess more frigidity or more virtue than usually 
 falls to the share of human beings ; " ^ by Mr. Bancroft, as 
 " punishing the innocent more than the guilty ; " ^ by a late 
 English writer, as " a sort of insult, rather than satisfaction, 
 to any man of ordinary feelings and understanding," * — may 
 be deemed the most corrupting device ever imposed by serious 
 natures on a blind and pliant community.* It could never 
 have been tolerated had not the idea entered men's minds as a 
 part of their religion, that marriage could not be dissolved 
 without committing an offence against God ; from which point 
 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 mensd et thoro, made up of pious doctrine 
 and worldly stupidity. The Protestant Bishop Cozens long 
 ago remarked to a Protestant English nation, — stretching 
 here the point against Catholics to meet fully all Protestant 
 prejudices: " The distinction between 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 Greek Church knows it 
 not) to serve the Pope's tyrn the better, till he got it estab- 
 lished in the Council of Trent ; at which time, and never before, 
 he laid his anathema upon all them that were of another mind ; 
 forbidding all men to marry, and not to make any use of 
 Christ's concession." « Yet in the face, not only of this testi- 
 
 1 Evans v. Erans, 1 Hag. Con. 35, learned judge elsewhere observes, that 
 4Eng. Ec. 310, 349. "these qualified divorces are regarded 
 
 2 1 Swift's System, 193. as rather hazardous to the morals of the 
 ' Bancroft Hist. TJ. S. 465. parties." 2 Kent Com. 127. And see 
 < Macqueen Hus. & "Wife, 197. post, § 37. 
 
 5 And see the very sound remarks ^ in the Duke of Norfolk's Case, 13 
 of Chancellor Kent, in Barrere v. Bar- Howell St. Tr. 1334. 
 rere, 4 .Johns. Ch. 187, 191. This 
 
 22 
 
CHAP. II.] LAW OF DIVORCE. § 30 
 
 mony, but of the testimony also of every other man who is not 
 swayed in his opinion by some matter of pure religious belief, 
 Protestant England, and more than half of the states of this 
 country where the tenets of no particular religious sect per- 
 vade our legislation, this divorce froija bed and board, this 
 nuisance in the law, is suffered to stand unquestioned ! Even 
 in Scotland it exists ; in almost every place where Marriage is 
 known, this Polly 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 over England, but not over this country, walks still that 
 other spawn of a dark age, whose mission it was to keep uncon- 
 jugal sinners in the strait performance of holy matrimonial 
 duties, termed the suit for the restitution of conjugal rights ;i 
 whereby 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. 
 
 § 30. Effect of the Reformation on Divorce Law. — Thus the 
 Reformation, in England, left the ecclesiastical law, as it stood 
 in the earlier times, in full control of this question of divorce. 
 By this law, marriage, as we have seen, was indissoluble ; but 
 separations, or divorces, a mensd et thoro were allowed, and 
 the suit for the restitution of conjugal rights cured the evil of 
 desertion. The Reformation wrought, indeed, as we have also 
 seen,^ a change in Scotland ; and a greater change was con- 
 templated for England. " A commission was issued by Henry 
 VIIL, and renewed by his son, Edward VI., authorizing Arch- 
 bishop Cranmer and other leading ecclesiastics to inquire into 
 this subject," including a general revision of the ecclesiastical 
 code, " and report to the Crown the result of their delibera- 
 tions. These commissioners embodied their opinions and 
 suggestions in the form of a work, which was subsequently 
 published, under the title of Reformatio Legum Ecclesiasti- 
 carum. Had their proposed emendations been adopted, the 
 
 1 Logan V. Logan, 2 B. Monr. 142. Barlee, 1 Add. Ec. 301. See also 50 
 For a practical illustration of the effect Lond. Law Mag. 275. 
 of this suit in England, see Barlee v, 2 Ante, § 26. 
 
 23 
 
§ B2 GENERAL VIEW. [BOOK I. 
 
 quality of indissolubility would no longer have attached to 
 the matrimonial contract ; for they advised, that, in cases of 
 adultery, malicious desertion, long absence, or capital enmi- 
 ties, the marriage should be dissolved, with liberty to the 
 injured party to marry again. They also recommended, that 
 the remedy of divorce a mensd et ihoro should be entirely 
 abrogated and done away with." But the changes thus 
 proposed failed to be adopted, in consequence of a series of 
 disasters, the principal one of which was the death of the 
 king, not from any want of confidence in their utility .\ Yet 
 late statutes, to be noticed more at large in subsequent 
 pages of these volumes, have permitted to a limited extent, 
 in England, judicial divorces dissolving the marriage, since 
 1858. 
 
 §31. Divorce in United States — Restitution of Conjugal 
 Rights, continued. — We shall see, in the proper place, that the 
 matrimonial law of England is the common law of this coun- 
 try ; except that, as we have no matrimonial courts, legislation 
 is necessary before it can be practically enforced. /Therefore 
 no cause of divorce is ordinarily allowed with us unless spe- 
 cifically mentioned in some statute* And the legislation of 
 our States has been quite various. \The suit for the restitu- 
 tion of conjugal rights has, as already observed, not been 
 used in any of the States ; ^ and, in most of them, judicial 
 divorces from the bond of matrimony are permitted for adul- 
 tery ; and, in many of them, for a considerable number of other 
 causes. 
 
 § 32. How it should be in our States. — In all our States, 
 men are at liberty to worship God in any way indicated by their 
 own convictions. In none, is the burden placed upon people 
 of supporting a form of religion not approved by them. There- 
 fore the tenets of a sect, whether it be the Roman Catholic 
 Church, the English, or any church of dissenters, cannot 
 
 1 Macqueen Pari. Pract. 467 ; 2 Harring. Del. 13. See also Ehame v. 
 Burn Ec. Law, Phillim. ed. 503. Por Ehame, 1 MeCord Ch. 197, -where the 
 a fuller sketch of the provisions of this question was raised for South Carolina, 
 work, see 4 Beeves Hist. Eng. Law, 543 but not absolutely decided. This juris- 
 et seq. diction has nowhere been conferred by 
 
 2 See Cruger v. Douglas, 4 Edw. statute. 
 Ch. 438, 506 ; Coverdill v. Coverdill, 3 
 
 24 
 
CHAP. II.] LAW OP DIVORCE. § 33 
 
 properly be put forward to govern this legislative question of 
 divorce, in any of our States. If the voice of Christendom 
 were distinct and united on this subject, as it is on the subject of 
 a man's having more wives than one at the same time, that voice 
 would undoubtedly be followed by every legislative assembly. 
 Yet we have seen, that different religious men and bodies of 
 men have their different views of the Scripture teaching ; 
 therefore, as it is impossible to harmonize the conflicting relig- 
 ious views by legislation, the legislatures of this country must 
 act upon this subject in respect solely of its political and social 
 bearings. And if they establish laws permitting divorce, they 
 do not thereby injure, even in the inmost conscience, those 
 who deem marriage a religious sacrament, and indissoluble. 
 Such persons are under no compulsion to use the divorce laws, 
 by appearing as plaintiffs in divorce suits ; and, if they are 
 made defendants, having violated their matrimonial duties 
 civilly, they cannot complain of being cut off from their matri- 
 monial rights civilly ; while still permitted to retain the seal of 
 the sacrament pure and undefiled in their consciences, and not 
 compelled to marry again. 
 
 § 33. Continued. — Looking, then, at this legislative ques- 
 tion, we are led into the following course of observation : 
 Matrimony is a natural right ; and, being such, it can be 
 forfeited only by some wrongful act.^ Therefore the govern- 
 ment is under obligation to permit every person of mature 
 years to be the husband or wife of another, who will substan- 
 tially perform the duties required in the matrimonial relation ; 
 and, when the relation is in good faith entered into, and one 
 of the parties, without the other's fault, so far fails in tliose 
 duties as practically to frustrate its ends, the government 
 should provide some means whereby, the failure being judi- 
 cially established and shown to be permanent, the innocent 
 party may be freed from the matrimonial tie, and left at liberty 
 to form another alliance.^ The guilty party, in such a case, 
 would have no claim to be protected in a second marriage ; 
 and whether he should be permitted to marry, or not, is a 
 
 1 See also post, § 363, 392. " See Taylor's Elements of the Civil 
 
 Law, 851. 
 
 25 
 
§ 35 GENERAL VIEW. [bOOK I. 
 
 question, not of right with him, but of public expediency, upon 
 which there is a considerable diversity of opinion. 
 
 § 34. Continued. — Anotlier proposition, corresponding to 
 the foregoing, is the following: Every state has an interest 
 alike in the private morals, the public happiness, the general 
 virtue, and the legitimate increase, of the community. There- 
 fore 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 parties may choose to enter into, with the 
 advantage of having the children trained under those better 
 influences which harmony and matrimonial concord in the 
 parents produce. This principle applies both to desertion and 
 other like offences, which, whether the divorce were allowed 
 or not, would lead to the relinquishment of cohabitation ; and 
 to some other matrimonial difficulties, where the cohabitation 
 would be continued, but with great discomfort and irritation. 
 For children born during a discordant cohabitation have their 
 natures tainted by it ; while their education, in which also the 
 state has the highest interest, will almost certainly not be of 
 a salutary character. 
 
 § 35. Continued. — Greater freedom of divorce than is thus 
 indicated is sometimes claimed ; but to go so far seems plainly 
 to be the dictate of natural justice, on the one hand, and of 
 public policy, on the other. At the same time, the stability 
 of the marriage relation should not be lost sight of.-* ^It is 
 the policy of the law," a learned judge has well remarked, 
 " and necessary to the purity and usefulness of the institution 
 of marriage, that those who enter into it should regard it as 
 a relation permanent as their own lives ; its duration not 
 depending upon the whim or caprice of either, and only to be 
 dissolved when the improper conduct of one of the parties 
 (the other discharging the duties with fidelity as far as prac- 
 ticable under the circumstances) shall render the connection 
 wholly intolerable, or inconsistent with the happiness or safety 
 of the other.'^i^ 
 
 1 2 Kent Com. 102. B. Monr. 120. See also Whittington 
 
 2 Simpson, J., in Griffin v. Griffin, 8 v. Whittington, 2 Dev. & Bat. 64. 
 
 26 
 
CHAP. II.] LAW OF DIVORCE. § 37 
 
 § 36. Continued. — Judge Swift has well observed : " The 
 rendering of the contract of marriage 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 per- 
 son, who has been unfortunate in forming a matrimonial 
 connection, must be for ever precluded from any possibility 
 of extricating himself from such a misfortune, and be shut 
 out from enjoying the best pleasures of life. This considera- 
 tion, 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 dissolution of the contract when it 
 is evident, that the parties cannot derive from it the benefits 
 for which it was instituted ; and when, instead of being a 
 source of the highest pleasure and most enduring felicity, it 
 becomes the source of the deepest woe and misery." i 
 
 § 37. Continued — Adultery a Crime. — The true principle of 
 legislation, therefore, indefinite indeed, yet leading • practically 
 to some definite results, seems to be, that any conduct which 
 renders cohabitation impracticable, and consequently justifies 
 a separation, should be made sufficient cause to dissolve the 
 marriage. This would leave no scope for divorces from bed 
 and board, and it should leave none.^ Legislation can never 
 destroy the sexual passion, though, aided by religious and 
 moral teaching, it may somewhat restrain and direct the course 
 of its manifestations. Hence that legislation which does most 
 to promote actual matrimony, does also most for the morals of 
 the community ; because " honest liberty is the greatest foe to 
 dishonest license." When parties are married in law, yet not 
 !n fact, and therefore are forbidden to enter into real mar- 
 riages, they will be liable, unless they are better — not worse 
 — than the community generally, to commit breaches of the 
 rules of morality, either by promiscuous indulgences, or by 
 forming alliances in the similitude of matrimonial, from which 
 1 1 Swift's System, 191. 2 Ante, § 29, 30. 
 
 27 
 
§ 38 GENERAL VIEW. [BOOK I. 
 
 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 adulteries, and 
 the birth of illegitimate children, are of every-day occurrence ; 
 while the crime of polygamy is winked at, though a felony on 
 the statute-book. Laws punishing adultery, except as an 
 ecclesiastical offence, are there unknown ; ^ and they are so 
 generally in those American States in which divorces are not 
 allowed, or allowed but for a single cause. 
 
 § 38. Continued — South Carolina. — Perhaps this point can- 
 not better be illustrated than by referring to South Carolina, 
 the only State in the Union in which no divorce, legislative or 
 judicial,^ has ever, for any cause, been granted. Not only is 
 adultery not indictable there, but the legislature has found it 
 necessary to regulate, by statute, how large a proportion a mar- 
 ried man may give of his property to his concubine,^ — a fact 
 well sustaining the proposition, that, where divorces are not 
 allowed, meretricious connections will be formed ; for legisla- 
 tion is never resorted to, except where there exists the subject- 
 matter for it to operate upon. The truth is, — and experience 
 and reason alike show it, — that either divorces or illicit con. 
 nections will prevail in every community, and it is for the 
 legislature to choose between the two. And the public senti- 
 ment will justify what the passions, or the natures, whichever 
 we may call them, of those who have entered into the unhappy 
 marriages practically dissolved may demand. Even from the 
 judicial bench of South Carolina, we have the following re- 
 markable words, fully sustaining this proposition : " In this 
 country," said the judge, and we may imagine how grave he 
 looked when he uttered the words, " where divorces are not 
 allowed for any cause whatever, we sometimes see men of 
 excellent characters unfortunate in their marriages, and virtu- 
 
 1 Anciently in England adultery 2 Post, § 42. 
 might be inquired into in tourns and 3 gee Denton v. English, 3 Brev. 
 
 leets, and punished by fine and impris- 147 ; Canady v. George, 6 Rich. Eq. 
 
 onment. Shelford Mar. & Div. 386 ; 103 ; Cusack w. White, 2 Mill, 279. 
 3 Inst. 206 ; Ayl. Parer. 52. 
 
 28 
 
CHAP. II.] LAW OP DIVORCE. § 39 
 
 ous women abandoned or driven away houseless by their 
 husbands, who would he doomed to celibacy and solitude 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 un- 
 yielding law, from motives of policy alone, has ordained it 
 so." ^ It may be unfortunate that men cannot make their 
 theories of legislation harmonize with their better instincts, or 
 their poorer instincts harmonize with their better theories ; 
 but, where judges can employ from the bench such language 
 as is here quoted, legislation may not unprofitably leave off 
 theorizing, and adapt itself to the actual condition in wliich it 
 finds the community, giving redress for wrongs suffered, in- 
 stead of withholding the redress, " because," says the theory, 
 " the wrong and the redress belong together ; therefore, if the 
 redress is not permitted to come, the wrong must stay away." 
 § 39. Evils of Divorce from Bed and Board, continued. — This 
 law which forbids all divorce is not perhaps, in its result, 
 much worse than the law under which divorces are granted 
 only from bed and board. The evils of such divorces — for in 
 South Carolina not even these are permitted, though there is 
 there a practice of allowing alimony without divorce — are too 
 numerous to be dwelt upon separately. What is mentioned 
 in the foregoing sections is but a specimen of all. The simple 
 statement of the law itself is sufi&cient to satisfy any mind, not 
 already perverted by false notions instilled into it in its hours 
 of freedom from thought, that this law can be only evil in its 
 influence, and evil continually. A man and woman, one of 
 whom has conducted ill and the other well in the matrimonial 
 relation, are left by this divorce under all the burdens of mar- 
 riage, yet forbidden to marry; and only permitted, if both 
 choose, to come together and form anew the relation of hate, 
 already proved to be without the continuing element of love. 
 And why is the innocent party thus burdened ? Because 
 somebody thinks — but let us not undertake to give reasons 
 for what has no reason. If marriage is good for one innocent 
 person, surely it is good for another. If marriage has a charm 
 to hold back from vice one mind inclined to err, surely the 
 1 Nott, J., in Cusack v. "White, 2 Mill, 279, 292. 
 
 29 
 
§ 41 GENERAL VIEW. [BOOK I. 
 
 interests of the community and private morals alike demand, 
 that every willing and erring person be brought under this 
 charm. And if there are reasons of a physical, of a moral, of 
 a mental nature, existing in the particular physical and rnental 
 constitutions of particular persons, why the well-being of those 
 individuals can be secured only in marriage, let us still have 
 a uniform rule, and deny marriage either to all of those 
 persons or to none. No man in his sober senses can say, that 
 marriage is not denied to the person who is, without his fault, 
 legally separated, but not divorced, from a former matrimonial 
 partner. 
 
 § 40. Causes ■which should authorize Divorce, enumerated. — 
 What are the specific causes, which, within the foregoing 
 principles, should be made by law sufficient for dissolving the 
 marriage, may be a question, to some extent, of difficulty. 
 Clearly, adultery ; desertion, which practically breaks up the 
 relation, and is by many considered to be a greater offence 
 against the marriage than even adultery ; ^ extreme cruelty, 
 which renders cohabitation physically unsafe ; perpetual, per- 
 haps temporary, imprisonment for crime ; drunkenness, when 
 it is confirmed, habitual, and beastly, — are completely destruc- 
 tive of the ends of marriage, therefore they should severally 
 be made causes for its legal dissolution. Beyond this line, we 
 come to ground uncertain and shadowy. There are smothered 
 hatred, love turned to the reverse, jealousies which no reason 
 can allay, an undefinable jarring of natures coming into colli- 
 sion, and other purely mental causes, which render the mar- 
 riage burdensome, and destroy its higher and holier purposes. 
 But these things are of a subtle nature, and human tribunals 
 cannot well deal with them ; while the judgment of the present 
 age has been wisely pronounced against allowing parties to 
 divorce themselves at pleasure, since the public and the chil- 
 dren have interests in every marriage, as well as the parties, 
 and since this restraint is necessary to protect the weaker 
 party. 
 
 § 41. Views which are too loose. — The policy thus recom- 
 mended, being substantially what is pursued in the greater 
 
 1 Brower de Jure Connub. 2, 12, 18 ; Boehmer 4, 19, 30 ; 1 Eras. Dom. Rel. 
 677. 
 
 80 
 
CHAP. II.J LAW OP DIVOBCE. § 42 
 
 part of the States of this Union, is in marked contrast to the 
 views of Milton, and others of the same school. They contend 
 for the right of married persons to be their own sole judges of 
 the causes for which divorce should be allowed them ; and 
 Milton would put the power, from which there should be no 
 appeal, into the hands of the husband alone, as in the days of 
 Abraham and Moses. They contend, moreover, that full effect 
 be given to those imponderable mental causes, which, however 
 just of themselves, cannot practically prevail, because no 
 human scale can weigh them. There is indeed much force 
 and sincerity i in the argument in favor of this view ; but 
 modern legislators will pause long before adopting it. They 
 will at least demand, that, before any divorce is granted, some 
 inquiry be instituted to determine whether the interests of the 
 public, and of other individuals than the parties themselves, 
 especially of children, will be promoted or prejudiced by the 
 dissolution of a union which the highest "policy requires, as a 
 general rule, to be perpetual. 
 
 § 42. Erroneous Views in Legal Literature — Why. — Deriv- 
 ing, as we do, all our common law of divorce originally from 
 Roman ecclesiastics, who held to the indissolubility of marriage 
 as a point of religious belief, it is not strange that much of our 
 legal literature upon this subject has the hue which such a 
 belief imparts. Our judges and lawyers have frequently, with 
 little consideration, lavished praise on that legislative policy 
 which has withheld all adequate redress for matrimonial 
 wrongs. Thus, as before mentioned,^ South Carolina has 
 steadily refused, from the first, either to grant a single legis- 
 lative divorce, or to vest the authority in her courts ; ^ and 
 
 1 It has been unjustly attempted to adopt desertion as a ground of divorce, 
 
 weaken the force of Milton's reasoning See ante, § 30. But in his writings on 
 
 by the suggestion, that he was plead- the subject he says scarcely any thing 
 
 ing his own cause. The fact is, that, of this cause ; while he labors to per- 
 
 though his attention might have been suade his readers of other views, which 
 
 at first directed to the subject by his he no doubt foresaw would not find 
 
 own case, yet his argument is a singu- place in the legislation of his country 
 
 lar instance of self-sacrifice to what he soon enough to serve him personally, 
 
 deemed, however erroneously, to be whatever hope he might have indulged 
 
 the demands of truth. His wife de- of their ultimate prevalence, 
 gerted him ; and it would appear that ^ Ante, § 38. 
 
 he could easily have persuaded the ' Hull v. Hull, 2 Strob. Eq. 174; 
 
 English Church and Parliament to Verginer v. Kirk, 2 Des. 640, note; 
 
 31 
 
§ 43 GENERAL TIEW. [BOOK I. 
 
 from the bench of the Supreme Conrt of Georgia comes the 
 following laudation : " In South Carolina, to her unfading 
 honor, a dirorce has not been granted sioce the BcTolution." ^ 
 Yet even the legal reports of South Carolina bear witness, that 
 there, as in eveiy other State or country, occasion exists for 
 the exercise of this remedy. For example, a man 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 abuse besides ; ^ but we are told, that, to her •• un- 
 fading honor," the powers of the State refuse to sever this 
 living body from this putrid carcass. If the refusal had been 
 to permit a creditor to collect a sum of money equal to the 
 marriage fee, we should have had no such praise of the policy. 
 § 43. Continiied. — That the judges of this State should 
 themselves praise the l^islation of the State is no more than 
 we ought to expect ; since all men esteem what is their own 
 more highly than what is another's. Thus it is remarked by 
 0"Xeal, 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 
 injunction, ' Those whom Grod has joined together, let not 
 man put asunder.' The working of this stern policy [of 
 ■■ noblv " refusing redress even in the " most distressing 
 cases," where '• Scripture " joins with reason in crying for the 
 redress] has been to the good of the people and the State in 
 every respect."^ And another of her judges exclaims, — 
 " The policy of this State has ever been against divorces. It 
 is one of her boasts that no divorce has ever been granted in 
 South Carolina." * Could South Carolina truly declare, that no 
 husband within her borders had ever proved unfaithful to the 
 marriage vow, and no wife had been false to her husband ; 
 that the observation judicially made by one of her own judges 
 concerning marriages in this State is in no part true, namely, 
 " All marriages, almost, are entered into on one of two consid- 
 
 Hattison v. Mattison, 1 Strob. Eq. S87, - Jelineaa v. Jelinean, 2 Des. 45. 
 ZS6 ; McCarty v. McCarty, 2 Strob. ^ McCartr v. McCarty, 2 Strob. 6, 
 
 6. 11. 
 
 1 Head b. Head, 2 Kelly, 191; Sis- « Dnrgan, Ch., in Hair v. Hair, 10 
 
 bet, J. Bieh. Eq. 163, 174. 
 
 32 
 
CHAP. II.] LAW OP DIVORCE. § 45 
 
 erations, love or interest, and the court is induced to believe the 
 latter is the foundation of most of them ;"^ that no judge of 
 hers had from the judicial bench proclaimed it a virtue to com- 
 mit the legal felony of polygamy, and to live in adultery ; that 
 no class of men existed in the State calling for legislation to 
 regulate their connections with their concubines, — then, 
 indeed, might the people of the other States talk of " unfading 
 honor," which had settled, as a halo, or as a crown of glory, 
 about her brow ! 
 
 § 44. Pears of the Effect of granting Divorces. — There is a 
 class of opinion on this subject, deserving of great respect, while 
 yet the opinion is erroneous. Many persons suppose, that, if 
 divorce is freely allowed, men and women will rush heedlessly 
 into marriage, and be heedless of their conduct afterward. 
 And they cite what they deem to be the example of France, 
 and the results of the example, where at one time the liberty 
 of divorce was greatly extended. Enormous numbers of 
 couples were made free of the matrimonial tie ; and there the 
 history recited hy these objectors ends. Why do not the ob- 
 jectors advocate the establishment of monarchy in the United 
 States, on the ground, that, in Prance, the experiment of self- 
 government has not worked well? But why were so many 
 divorces sought ? Did the corruption begin with the divorce 
 law ? If the granting of the divorces was itself corruption, 
 whence came the prompting ? The truth is, France had for so 
 many centuries been under the Roman Catholic rule of indis- 
 solubility that social and matrimonial impurity had swollen to 
 such a degree as at last to burst all bounds, and overflow the 
 country. 
 
 § 45. Progress of Better Views. — Those who suppose mar- 
 riage to consist only in a man and woman living in the same 
 house, and lodging in the same room ; who suppose the very 
 essence of marriage is the keeping of the same parties together, 
 under all circumstances, of sunshine or of storm ; who. deem 
 the tender affections, the inward solace of mind, the regard 
 for offspring which watches wisely over it, the restraining and 
 softening influences of home and its loves and its joys, to be 
 
 1 Thompson, J., in Devall v. Devall, 4 Des. 79. 
 T OL. I. 3 33 
 
§ 46 GENERAL VIEW. [BOOK I. 
 
 no part of marriage, but to be things capable of wandering 
 here and there beyond the dwelling inhabited by those who are 
 called husband and wife, while yet the marriage relation is 
 doing what it ought to do of blessing to the community and 
 the parents and the children, in the midst of hate, of disquiet, 
 of weeping tears of blood, — are permitted, for all the author 
 cares, to turn up their prude faces, and talk of corruption to 
 persons who wish to see the laws minister to something else 
 than this when they minister to marriage ; but never will their 
 debasing rule of rusty iron be allowed to restrain the uprising 
 of the better instincts of the people of this country, who, 
 slowly, yet surely ; often unwisely, yet true to the end ; are 
 bringing marriage, both in law and practice, into the condition 
 which the Maker intended. 
 
 § 46. indissoiubUity absurd. — The idea, that, according to * 
 any just view, whenever parties have come together in mar- 
 riage, they have thereby placed themselves so far in each 
 other's power for life as to be incapable of freeing themselves 
 by any act of the law, though the ends of their union are all 
 frustrated, though one of them is unwilling to discharge the 
 duties undertaken, though every hope of its ministering to the 
 well-being of the parties is obliterated, — surely can have place 
 only in a perverted understanding. True, indeed, is it, that 
 this union is intended to be for life, that only in the most 
 extreme circumstances should it be dissolved ; but the very 
 fact of its sacred nature, too sacred to be made matter of 
 temporary arrangement, is the strong reason why, when it 
 ceases to have any thing worthy to be called sacred about it, 
 when an erring one has trampled it in the mud of his corrup- 
 tion by his polluted feet, the law should cease to call it sacred, 
 and pronounce it profaned and dissolved. The notiou of pro- 
 moting in the community reverence for marriage by holding 
 that to be marriage from which all disgusting things proceed ; 
 by receiving as too sacred to be molested the relation which 
 breeds corruption in the souls of the parties, adulteries in the 
 community, unnatural developments of wickedness in the 
 children, sorrow in the hearts of multitudes made by God to be 
 happy, blasphemies in the temple of matrimonial purity ; is too 
 preposterous, too absurd, to be reasoned against ; too mon- 
 34 
 
CHAP. II.] , LAW OF DIVORCE. § 47 
 
 strous to be credited, as a fact of human legislation, did not 
 testimony not to be rejected prove its existence. , 
 
 § 47. How Courts should regard Divorce Laws. — But while 
 men may naturally differ concerning the true policy of legisla- 
 tion on this subject, plainly the courts, in administering the 
 law, should construe the statutes in the spirit which prompted 
 their enactment, whatever private opinions the judges may 
 hold of their expediency. ^ And in good faith have the Amer- 
 ican tribunals generally done this. Occasionally, however, a, 
 statute has been frittered away, through the device of an over- 
 wrought construction, by judges who have seemed to regard it 
 as a part of their calling to cast every possible obstruction in 
 the path of parties seeking this remedy. But while the attempt 
 thus to correct the errors of legislation is a clear assumption 
 of an office better performed by the legislators themselves, 
 it is incumbent upon the judiciary to guard, in another way, the 
 interests of the public. The courts should see, that the laws 
 are not evaded, and that divorces are granted only to parties 
 entitled to them. 
 
 1 See Bishop Stat. Crimes, § 235. 
 
 35 
 
§ 48 SOUECES OF AUTHORIT?. [BOOK II. 
 
 BOOK II. 
 
 THE SOUECES OF AUTHORITY IN OUR MARRIAGE 
 AND DIVORCE LAW. 
 
 CHAPTER m. 
 
 THE ENGLISH ECCLESIASTICAL LAW. 
 
 48, 48a. Introduction. 
 
 49-55. History, Sources, and Nature of the Ecclesiastical Law. 
 
 66, 57. Ecclesiastical Law as a Part of the Common Law. 
 
 58-62. Books of the Ecclesiastical Law. 
 63-65a. Ecclesiastical Judges, their Decisions, Practice, the New Court. 
 
 § 48. Our Matrimonial Law of English Origin — How in Eng- 
 land — WTiat Court. — la discussing the subject of marriage 
 and divorce, we are particularly required to form, at the out- 
 set, correct opinions concerning the sources and nature of the 
 legal authority which governs in this class of questions. The 
 general doctrine is familiar, that colonists to an uninhabited 
 country take with them to their new locality, as common law, 
 all the laws, written and unwritten, which at the time of their 
 emigration prevailed in the parent land, and which are adapted 
 to their new relations and circumstances.^ This doctrine, as 
 connected with the subject of these volumes, will pass under 
 examination in our next chapter ; we shall in this chapter 
 inquire, — Whence flows the English matrimonial law ? or, 
 in other words, — What is authority, on these questions, in 
 England ? Until recently, all matrimonial causes were there 
 heard in the ecclesiastical courts. These are regular courts 
 of the country as much as the others ; for, though their judges 
 derive their commissions directly from the functionaries of 
 
 1 Bishop First Book, § 49 et seq. 
 36 
 
CHAP, III.] ENGLISH ECCLESIASTICAL LAW. § 49 
 
 the church, yet indirectly and really they have them from the 
 Crown, because the sovereign of England is the head of the 
 English Church.i How the church, first on the continent, 
 and afterward, in England, Scotland, and the other divisions 
 of the British islands, obtained, in the gradual and sure 
 advance of her power, jurisdiction over various things relating 
 to the civil rights and interests of men and the welfare of the 
 state, is matter of history not belonging particularly to these 
 pages. Matrimonial causes fell naturally within the circle of 
 her enchantment, because marriage was one of her sacraments ;2 
 and so less question was always made of the rightfulness of 
 her authority over them than over many others. Consequently 
 this chapter will be mainly occupied with an investigation 
 concerning what is called, in England, the ecclesiastical law. 
 
 § 48a. How the Chapter divided. — We shall consider, I. The 
 History, Sources, and Nature of the Ecclesiastical Law ; H. 
 The Ecclesiastical Law viewed as a Part of the Common Law ; 
 III. Books of the Ecclesiastical Law ; IV. The Ecclesiastical 
 Judges and Practice, their Decisions, and the New Court. 
 
 I. The Mistory, Sources, and Nature of the Ecclesiastical Law. 
 
 § 49. Lay and Civil Jurisdiction formerly in One Court. — " 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 members, 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 con- 
 junction with the ealderman or his sheriff." ^ And the only 
 difference between the functions of tlie bishop and the temporal 
 judge appears to have been, that a " superior deference," in 
 the language of Blackstone, " was paid to the bishop's opinion 
 in spiritual matters, and to that of the lay judges in temporal. 
 This union of power," continues the same author, " was very 
 advantageous to them both : the presence of the bishop added 
 
 1 1 Bl. Com. 278. See also post, 2 Coote Ec. Pract. 3 ; 3 Bl. Com. 92. 
 § 56. ' Coote Ec. Pract. 4. 
 
 37 
 
§ 51 SOURCES OF AUTHORITY. [BOOK II. 
 
 weight and reverence to the sheriff's proceedings ; and the 
 authority of the sheriff was equally useful to the bishop, by 
 enforcing obedience to his decrees in such refractory offenders 
 as would otherwise have despised the thunder of mere ecclesi- 
 astical censure." ^ 
 
 § 50. Origin of Ecclesiastical Courts — Prohibition from Com- 
 mon-law Courts. — After the Norman Conquest had broiight 
 into the country large numbers of learned foreign ecclesiastics, 
 who succeeded to the episcopal sees of England on the expul- 
 sion of the native prelates, the lay and ecclesiastical jurisdic- 
 tions were separated. The separation was accomplished by 
 a statute of the Norman Parliament, in the reign and through 
 the influence of William I. It recites, that, previous to 
 William's time, the episcopal laws were not administered 
 well, or according to the precepts of the holy canons ; and 
 orders, by the advice of the common council, and council of 
 the archbishops, bishops, and abbots, and all the clergymen 
 of the realm, that the same be amended. It then enacts, 
 among other things, that no bishop or archdeacon hold pleas 
 any more in the hundred, concerning the episcopal laws, nor 
 bring to judgment of secular men a cause which appertains to 
 the government of souls ; but whosoever shall be impeached 
 according to the episcopal laws, for any cause or fault, shall 
 come to the place which the bishop shall have chosen and 
 named for this purpose, and there answer respecting his cause, 
 and do right to God and his bishop, not according to the 
 hundred, but according to the canons and episcopal laws ; " sed 
 secundum canones et Episcopales leges rectum Deo et Episcopo 
 satisfaciat." The same statute established the proceeding of 
 prohibition, ever since in use, whereby the temporal courts 
 restrain the spiritual, when attempting to overstep the lawful 
 boundary of their jurisdiction.^ And though there was a 
 temporary return to the former state of things during the 
 reign of Henry I.,^ yet substantially this statute of William I. 
 has ever been the foundation of the system of separate ecclesi-' 
 astical tribunals. 
 
 § 51. " Canons and Episcopal Laws " — Roman Canon Law. — 
 
 1 3 Bl. Com. 61, 62. 3 3 Bl. Com. 63. 
 
 2 Coote Ec. Pract. 5-9, 96. 
 38 
 
CHAP. III.] ENGLISH ECCLESIASTICAL LAW. § 51 
 
 We have seen, that this statute of William I. authorized these 
 newly constituted tribunals to decide all questions within their 
 jurisdiction, according to the canons and episcopal laws.^ But 
 the word canons, in the statute, does not necessarily and 
 exclusively refer to the Eoman canons, and the same may be 
 said of the words episcopal laws ; but plainly they mean, 
 together, any and all rules which then governed the English 
 Church under the names of canons and of episcopal laws, 
 whether the same were binding elsewhere within the sway of 
 the Eoman see or not. And it was said by the ecclesiastical 
 commisioners of George IV. : " In England, the authority of 
 the [Roman] canon law was at all times much restricted, 
 being considered in many points repugnant to the law of Eng- 
 land, or incompatible with the jurisdiction of the courts of 
 common law ; so much of it as has been received, having 
 obtained by virtual adoption, has been for many centuries 
 accommodated by our own lawyers to the local habits and 
 customs of the country ; and the ecclesiastical laws may now 
 be described, in the language of our statutes, as ' laws which 
 the people have taken at their free liberty, by their own con- 
 sent, to be used among them, and not as laws of any foreign 
 Prince, Potentate, or Prelate.' In addition to these authorities 
 of foreign origin, must be enumerated also the constittitions 
 passed in this country by the Pope's legates, Otho and Otho- 
 bon, and the archbishops and bishops of England, assembled 
 in national councils in 1237 and 1269 ; and a further body of 
 constitutions framed in provincial synods, under the authority 
 of successive Archbishops of Canterbury, from Stephen Lang- 
 ton, in 1222, to Archbishop Chicheley, in 1414; and adopted 
 also by the province of York, in the reign of Henry VI. These 
 English constitutions, as they may be termed, have been illus- 
 trated by the commentaries of English canonists of distin- 
 guished learning and experience, and principally by Lyndwood, 
 an eminent canonist and statesman, much employed in the 
 public affairs of the country in the reigns of Henry V. and VI. 
 These commentaries will be found to contain much valuable 
 information on subjects connected with the history and govern- 
 ment of the church. To the foregoing enumeration must be 
 
 1 Ante, § 50. 
 
 89 
 
§ 63 ' SOURCES OF AUTHORITY. [BOOK II. 
 
 added alsoihe canons of the English Protestant Church, passed 
 in convocation 1603 ; and such acts of Parliament as make 
 particular subjects matters of ecclesiastical cognizance, or 
 regulate the course of proceedings with respect to the same." ^ 
 Concerning ,the canons of 1603, however, it is held, that, not 
 having been ratified by Parliament, though they received the 
 royal assent, they do not propria vigore bind the laity ; but they 
 bind the clergy, and the law ofi&cers of the ecclesiastical 
 courts .2 
 
 § 52. Roman Canon Law, continued — How as Authority — 
 English Ecclesiastical Law. — Still some confusion remains in 
 the books, as to the precise weight which the Roman canon law 
 should have in the English ecclesiastical tribunals. Burn 
 says : " The ecclesiastical law of England is composed of these 
 four main ingredients, — the civil law, the canon law, the com- 
 mon law, and the statute law. . . . When these laws do inter- 
 fere and cross each other, the order of preference is this : the 
 civil law submitteth to the canon law ; both of these to the 
 common law ; and all these to the statute law. So that from 
 any one or more of these, without all of them together, or from 
 all of these together without attending to their comparative 
 obligation, it is not possible to exhibit any distinct prospect of 
 the English ecclesiastical constitution." ^ But however accu- 
 rate this statement might have been at some distant period in 
 our jurisprudence, it is now correct simply as explaining the 
 history of the ecclesiastical law ; as when, in speaking of the 
 English language, we enumerate the former tongues of which 
 it is composed. In this aspect, the canon law may be regarded 
 as the Anglo-Saxon of the ecclesiastical. 
 
 § 53. Continued. — Among the judges of the ecclesiastical 
 courts. Lord Stowell was perhaps the most inclined to give 
 weight to the Roman canon law. In one case he observed : 
 " Upon the first point, the binding authority of the canon law 
 in causes matrimonial, depending in these courts, I look without 
 success for any principle on which I can hold, that they can 
 
 1 Eeport of Eo. Com. abr. ed. 21, Gilb. Ch. 156 ; Dakins t>. Seaman, 9 M. 
 
 22. & W. 777, 788. 
 
 ^ Middleton v. Croft, 2 Stra. 1056, 3 i Bum Ec. Law, PhilUm. ed. Pref. 
 
 2 Atk. 650 ; 1 Burn Ec. Law, Phillim. 11. 
 ed. Pref. 27, 30; Butler v. Gastrill, 
 
 40 
 
CHAP. III.] ENGLISH ECCLESIASTICAL LAW. § 54 
 
 release themselves, by any power of their own, from a submis- 
 sion to that authority. The release, if proper, must come 
 from a higher authority than they possess. It is notorious that 
 this country, at the Reformation, adopted almost the whole 
 of the law of matrimony ,i together with all its doctrines of the 
 indissolubility, of contracts per verba de prcesenti et per verba 
 de futuro, of separation a mensd et thoro, and mainy others ; 
 the whole of our matrimonial law is, in matter and form, con- 
 structed upon it : some canons of our own may have varied 
 it ; and a higher authority, that of the legislature, has swept 
 away some important parts of it. But the. doctrine of indis- 
 solubility remains in full force." ^ These words of the learned 
 judge, however, must be accepted by us with caution, and with 
 the limitation which restricts their meaning to the particular 
 subject of inquiry then before the court. The same judge, on 
 another occasion, said, that the older canons " can hardly be 
 considered as carrying with them all their first authority."^ 
 And Sir John NichoU stated the doctrine more distinctly, 
 thus : " If the canon law is to govern the case, the text 
 referred to does not come up to the point ; even if it did, 
 something more would be to he shown, namely, that it has been 
 received as the law of this country ; it might not be necessary 
 for this purpose to show a case precisely similar ; it would 
 be sufficient to show that it is according to the general rules 
 observed here. But it is a strong, and almost a conclusive, 
 presumption against the present proceeding, that no suit 
 appears ever to have been brought by any but the injured 
 party." * 
 
 § 54. Continued. — The later case of The Queen v. Millis, in 
 the House of Lords, called out from the judges of the common- 
 law courts their views of this matter, stated, by Lord Chief 
 Justice Tindal, who delivered the unanimous opinion of the 
 
 1 Evidently the law which was 292, 300, 301. See also Dalrymple o. 
 adopted was the law then prevailing in Dalrymple, 2 Hag. Con. 54, 81, 82, 4 
 the ecclesiastical courts of England; Eng. Ec. 485, 497; Macqueen Pari, 
 and other authorities deny, that the Pract. 446. 
 
 Koman canon law ever had force, pro- 3 Burgess v. Burgess, 1 Hag. Con. 
 
 prio vigore, in those courts, even before 384, 393. 
 
 the Reformation. * Norton v. Seton, 3 PhiUim. 147, 
 
 2 Proctor V. Proctor, 2 Hag. Con. 163, 1 Eng. Ec. 384, 388. 
 
 41 
 
§ 54 SOURCES OP AUTHORITY. [BOOK 11. 
 
 twelve judges, in the following words : " My lords, I proceed 
 in the last place to endeavor to show, that the law by which 
 the spiritual courts of this kingdom have from the earliest 
 time been governed and regulated, is not the general canon 
 law of Europe, imported as a body of law into this kingdom, 
 and governing those courts propria vigore ; but, instead 
 thereof, an' ecclesiastical law, of which the general canon law 
 is no doubt the basis, but which has been modified and altered 
 from time to time by the ecclesiastical constitutions of our 
 archbishops and bishops, and by the legislature of the realm, 
 and which has been known from early times by the distin- 
 guishing title of the King's Ecclesiastical Law. . . . That 
 the canon law of Europe does not and never did, as a body of 
 laws, form part of the law of England, has been long settled as 
 established law. Lord Hale defines the extent to which it is 
 limited very accurately. ' The rule,' he says, ' by which they 
 proceed is the canon law, but not in its full latitude, and only 
 so far as it stands uncorrected either by contrary acts of Par- 
 liament or the common law and custom oi England ; for there 
 are divers canons made in ancient times, and decretals of the 
 popes, that never were admitted here in England.' ^ Indeed, 
 the authorities are so numerous, and at the same time so 
 express, that it is not by the Roman canon law that our judges 
 in the spiritual courts decide questions within their jurisdic- 
 tion, but by the king's ecclesiastical law, that it is sufficient to 
 refer to two as an example of the rest. In Oaudrey's Case,^ 
 which is entitled ' Of the King's Ecclesiastical Law,' in report- 
 ing the third resolution of the judges. Lord Coke says, 'As in 
 temporal causes the king, by the mouth of the judges of his 
 courts of justice, doth judge and determine the same by the 
 temporal laws of England, so in cases ecclesiastical and 
 spiritual, as namely' (amongst others enumerated), ' rights of 
 matrimony, the same are to be determined and decided by 
 ecclesiastical judges according to the king's ecclesiastical law 
 of this realm ; ' and a little further he adds, ' So, albeit- the 
 kings of England derived their ecclesiastical laws from others, 
 yet so many as were proved, approved, and allowed here, by 
 
 1 Hale Hist. Com. Law, c. 2. 2 Caudrey's Case, 5 Co. 1. 
 
 42 
 
CHAP. III.] ENGLISH ECCLESIASTICAL LAW. § 55 
 
 and with a general consent, are aptly and rightly called, The 
 King's Ecclesiastical Laws of Tnglaud.' In the next place, 
 Sir John Davies, in Le Oase de Commendams^ shows how the 
 eanon law was first introduced into England, and fixes the 
 time of such introduction about the year 1290, and lays it 
 down thus : ' Those canons which were received, allowed, and 
 used in England, were made by such allowance and usage 
 part of the king's ecclesiastical laws of England; whereby the 
 interpretation, dispensation, or execution of those canons, 
 having become laws of England, belong solely to the king of 
 England and his magistrates within his dominions : ' and he 
 adds, ' Yet all the ecclesiastical laws of England were not 
 derived and adopted from the court of Rome ; for long before 
 the canon law was authorized and published ' (which was 
 after the Norman Conquest, as before shown) ' the ancient 
 kings of England, namely, Edgar, Ethelstan, Alfred, Edward 
 the Confessor, and- others, did, with the advice of their clergy 
 within the realm, make divers ordinances for the government 
 of the cliurch of England ; and after the Conquest divers 
 provincial synods were held, and many constitutions were 
 made, in both the kingdoms of England and Ireland ; all 
 which are part of our ecclesiastical laws of this day.' " ^ 
 Althougli the lords did not all concur with the judges in the 
 main point of this case, about which, as we shall see hereafter, 
 there is a conflict of opinion, still, on this matter of the king's 
 ecclesiastical law, there appears to be no disagreement. The 
 same conclusion is arrived at, as to the consistorial, or ecclesi- 
 astical, law of Scotland.^ 
 
 § 55. How far Canon Lavr Meritorious — Its Weight in Matri- 
 monial Causes. — Having thus seen to what extent the Roman 
 canon law is incorporated into the ecclesiastical law of England, 
 we are not strictly required, in the further prosecution of our 
 subject, to enter into any examination of the question whether 
 it is a wise system or not. Undoubtedly the jurist whom 
 leisure and unfailing years should permit to become thoroughly 
 accomplished in all legal learning, having traversed and 
 
 1 Sir J. Dav. 69 h, 70-72 6. ' 1 Fras. Dom. Kel. 20-39. 
 
 3 Eeg. V. Minis, 10 CI. & F. 534, 678, 
 680-682. 
 
 43 
 
§ 56 SOURCES OP AUTHORITY. [BOOK II. 
 
 minutely explored the rugged and wealthy fields of the com- 
 mon law, and passed among the foliage, flowers, and evening 
 twilight melodies of the civil, would turn his steps into the, 
 winding ways, among the venerable cloisters, of the canon law. 
 By some, this canon law is deemed a mere patchwork of 
 absurd things on many beautiful things of equity, borrowed 
 from the civil law. Lord Stowell, on the other hand, thought 
 it " deeply enough founded in the wisdom of man." ^ But it 
 seems to be agreed, that, while " the commentators upon it 
 became as numerous as those on the Roman law, they far 
 exceeded them in subtilty, false refinement, and idle specula- 
 tion ; and in obscene dissertations the province is peculiarly 
 their own. It has been observed by Blackstone, that some of 
 the impurest books written in any language are those by the 
 canonists, on the subject of marriage and divorce." ^ Still, 
 whatever be the true estimate of the canon law, as a system of 
 jurisprudence, of philosophy, or of religion, it can have no 
 peculiar weight in the questions we are to consider in these 
 volumes, even in cases where all other authorities are silent. 
 Dr. Lushington once observed : " Very little assistance can 
 be obtained from authorities ; " that is, books of the canon 
 law ; " it may be well to consult Sanchez for minute and 
 ingenious disquisitions on the subject ; but I should not be 
 disposed to consider his authority of any very great weight, 
 even if it governed the present question, which I do not think 
 it does. I must rather endeavor to find out what are the true 
 principles of law and reason applicable to the case, following, 
 as far as practicable, or rather not contradicting, former 
 decisions." ^ 
 
 II. The. Ecclesiastical Law viewed as a Part of the Common 
 
 Law. 
 
 § 56. Part of Unwritten Lavr of the Land. — That the ecclesi- 
 astical courts of England are regular tribunals of the country 
 
 1 Dalrymple v. Dalrymple, 2 Hag. Sir C. Cresswell, in Hope v. Hope, 1 
 Con. 54, 64, 4 Eng. Ec. 485, 489. Swab. & T. 94, where he decided a 
 
 2 1 Era8. Dom, Rel. 24 ; 3 Bl. Com. point, not previously drawn into judg- 
 93. ment in England, directly contrary to 
 
 3 Deane v. Aveling, 1 Robertson, the holding of the Roman canon law. 
 279, 297. The same view was taken by 
 
 44 
 
CHAP. III.] ENGLISH ECCLESIASTICAL LAW. § 58 
 
 has already been observed ; also, that the law administered in 
 them is a part of the general law of the land.^ It is not, 
 indeed, technically termed common law, in the limited accep- 
 tation of the word ; but it is such in fact, the same as is the law 
 administered in the equity and in the admiralty tribunals. In 
 an early case, therefore, it was " resolved, on great debate, that 
 the ecclesiastical law is part of the law of the land; " ^ it is 
 sometimes denominated a branch of the common law;^ and 
 so it has always been regarded both by the courts and by 
 Parliament.* , 
 
 § 57. Continued — Summary of Views. — The doctrine of the 
 foregoing sections of this chapter may be briefly stated thus : 
 Of the several branches of the common law of England, there 
 is'One which is called the ecclesiastical law, the same as there is 
 another which is more technically termed the common law ; 
 and still another, which is named the law of the admiralty ; 
 and another, of very great importance, known as equity. To 
 the branch of the common law called ecclesiastical, the subject 
 of marriage and divorce, in England, pertains. This branch of 
 the law is one of a peculiar kind ; it was clipped from a sin- 
 gular stock, whence it was engrafted into the English tree ; 
 there it is, and has long been, fed by the common sap which 
 nourishes the other parts of the English jurisprudence, yet it 
 retains its original qualities, distinguishing it from the rest ; 
 and, if we would become wise concerning it, in its present 
 unfoldings, or concerning its fruits, we must give to it a sepa- 
 rate and special study. 
 
 III. Books of the Ecclesiastical Law. 
 
 § 58. General View — Old Text-Books. — To what books, 
 then, shall we go for a knowledge of this law ? Those most 
 reliable, of course, are the published reports of the decisions 
 of the ecclesiastical courts. In fact, this is the only source 
 fully reliable; for all the old English text-books appear to 
 
 1 Ante, § 48-50. Reg v. MilUs, 10 CI. & F. 534, 671. See 
 
 2 Prudham v. Phillips, 1 Harg. Law also Catterall v. Catterall, 1 Robertson, 
 Tracts, 456, note. 580. 
 
 3 " The common law of England of * 1 Burn Ec. Law, Phillim. ed. Pref. 
 which the ecclesiastical law forms a 25. 
 
 part." Lord Chief Justice Tindal, in 
 
 45 
 
§ 59 SOUBCES OP AUTHOEITT. [BOOK II. 
 
 contain a greater or less admixture of the Eoman canon law, 
 -without any proper discrimination as to what has been adopted 
 in England. We may, however, mention two of the old text- 
 books now accessible, whose authors Lord Stowell has denomi- 
 nated " the oracles of our own practice, G-odolphin and 
 Oughton."! Tlie former, written in English, is entitled 
 " Bepertorium Canonicum; or, an Abridgement of the Eccle- 
 siastical Laws of this Realm, consistent with the Temporal." 
 The third edition of th s work was published in London, A. D. 
 1687. The same author has left a work, sometimes referred 
 to, called the " Orphan's Legacy," and another on " Admiralty 
 Jurisdiction." Judge Story has quoted him as " a very 
 learned admiralty judge." - The latter of the afore-mentioned 
 works of ecclesiastical law, written in Latin and published in 
 two quarto volumes in 1738, is entitled " Ordo Judiciormn 
 give Methodus Procedendi in Negotiis et Litibus in Foro 
 JEcclesiastico-Oivili Bxitannico et Hibernico."^ The first part 
 of this work was, in 1831, translated by Law, a provincial 
 ecclesiastical judge, who incorporated with it some portions of 
 the works of Clarke, Conset, Ayliffe, Cockburn, Gibson, and 
 others, entitling the whole " Forms of Ecclesiastical Law, or the 
 Mode of conducting Suits in the Consistory Courts." This 
 translation has gone into a second edition. The translator in 
 his preface promised the second part of Oughton, but it appears 
 not to have been laid before the public. The most of what is 
 valuable both in Godolphin and Oughton has found its way into 
 other and more modern collections. 
 
 § 59. Old Text-Books, continued. — There are two other of 
 these old English works, worthy of note ; one of which, cited 
 as Aylifife's Parergon, and published in 1726, is entitled " Par- 
 ergon 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 work is convenient for reference, but it contains much 
 
 1 Briggs V. Morgan, 3 Phillim. 325, this book, especially of the part which 
 
 1 Eng. Ec. 408, 409. pertains to the law in distinction from 
 
 ^ In Chamberlain u. Chandler, 3 the practice, see Hope v. Hope, 1 Swab. 
 
 Mason, 242, 245. & T. 94. 
 
 ' Eor a somewhat lower estimate of 
 
 46 
 
CHAP. III.] ENGLISH ECCLESIASTICAL LAW. § 61 
 
 which is clearly not English law. It is a folio volume of 
 between five and six hundred pages. The other work, and 
 one of probably more value and authority, is Gibson's " Codex 
 Juris Eoclesiastici Anglioani ; or, the Statutes, Constitutions, 
 Canons, Rubrics, and Articles of the Church of England, 
 methodically digested under their Proper Heads, with a Com- 
 mentary, Historical and Juridical." The second edition, 
 enlarged by the author, was published at Oxford, A. D. 1761. 
 It is in two folio volumes, containing together above sixteen 
 hundred pages. Besides these, there are some other old books 
 of less note, which we need not pause to mention. 
 
 § 60. Later Text Books. — Of later productions, Burn's Eccle- 
 siastical Law, in four volumes, is familiar to the profession. 
 It is a useful compilation, or digest ; for such is substantially 
 its character, it having little claim to be considered an element- 
 ary treatise ; and it does not attempt any original elucidations 
 of legal doctrine. The ninth edition, greatly enlarged and 
 improved by Phillimore, was published in 1842. We have 
 also Soger's " Practical Arrangement of Ecclesiastical Law," 
 in one volume, — an excellent compilation, following substan- 
 tially 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. 
 
 § 61. Reports. — There are no regular reports of decisions in 
 the ecclesiastical courts prior to the year 1809. Then com- 
 mence the reports of Phillimore, embraced in three volumes, 
 coming down to and including the year 1821. Next we have 
 the reports of Addams, whose two volumes, and 284 pages of 
 an unfinished third volume, carry us into the year 1826. 
 Haggard follows with three volumes, and an unfinished fourth, 
 extending to 1833. Then succeeds Curteis, in three volumes, 
 taking us through the year 1844. He is followed by Robert- 
 son, whose one volume and an unfinished second bring us 
 down to 1853. Then we have, in two volumes, the " Ecclesi- 
 astical and Admiralty Reports," by Spinks, conducting us to 
 1855. A single thin volume, the earlier part of which is by 
 Deane, and the later by Deaue assisted by Swabey, the whole 
 being cited under the joint names of Deahe and Swabey, closes 
 the work of reporting, previous to the establishment of the new 
 
 47 
 
§ 63 SOUBCES OP AUTHORITY. [BOOK 11. 
 
 courts for the hearing of testamentary and matrimonial causes, 
 by act of Parliament, in 1857.1 But, though the regular re- 
 ports go back no further than 1809, the volumes of these con- 
 tain, either in notes or otherwise, many earlier cases. And 
 Dr. Pliillimore made a collection, in two volumes, of cases 
 decided chiefly between the years 1752 and 1758, with some 
 cases of an earlier date, in the Arches and Prerogative Courts 
 and Court of Delegates, containing the judgments of the Eight 
 Hon. Sir George Lee, cited as Lee's Reports. We have also 
 two volumes of immense value, compiled by Dr. Haggard, 
 containing the judgments of Lord Stowell in cases argued and 
 determined in the Consistory Court of London. In the Notes 
 of Cases, in the Jurist, in the Law Journal, and in other like 
 depositories of law, are likewise some decisions not found in 
 the regular series. So there are a few decisions mentioned in 
 the notes to Poynter's essay on Marriage and Divorce, not 
 found elsewhere. 
 
 § 62. "English Ecclesiastical Reports" — Irish. — The before- 
 mentioned English Reports, down to and including the volumes 
 of Curteis, with the exception of the fourth volume of Haggard, 
 are, together with Fergusson's volume of Scotch Consistorial 
 Reports, somewhat condensed, chiefly by the omission of cases 
 deemed to be unimportant in the United States, and published 
 at Philadelphia, in seven volumes of close type, under the 
 name of the English Ecclesiastical Reports. Perhaps in this 
 connection should be mentioned also Milward's " 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 Radclifl", LL.D." ; which are 
 good law in England and the United States. These reports are 
 in one volume, and embrace the period between the years 
 1816 and 1843. 
 
 IV. The Ecclesiastical Judges and Practice, their Decisions, 
 and the New Court. 
 
 § 63. The Judges — How to study their Decisions. — The 
 English ecclesiastical tribunals have been presided over by 
 some of the ablest legal persons in the kingdom. They are 
 
 1 Post, § 65. 
 48 
 
CHAP. III.J ENGLISH ECCLESIASTICAL LAW. § 64 
 
 usually the same judges who administer the admiralty law, 
 formerly selected from among the advocates at Doctors' Com- 
 mons, now passed away, — a position attainable only after 
 many years of laborious study .^ But they have no experience 
 in the trial of common-law causes ; consequently are unaccus- 
 tomed accurately to distinguish the law by which a case is 
 governed from the evidence by which the facts are sustained. 
 The result is, that, while their opinions are luminous and in- 
 structive, the precise point of law upon which a case turns 
 does not always distinctly appear in them. And often we can 
 discern the point only on comparing the case with several 
 others, and drawing a conclusion from the whole. Therefore, 
 in studying their decisions, we are required to bear in mind 
 these things, which indeed are more or less elements to be 
 regarded in all judicial opinions.^ Dr. Lushington once ob- 
 served : " Before I comment upon the authorities to which I 
 shall refer, I think it right to premise, that every expression 
 used by the learned judges must be considered with reference 
 to the facts in each case, otherwise the greatest misapprehen- 
 sions will arise. It seldom happens that a judge lays down 
 any abstract principle of law, without reference to the circum- 
 stances of the case he has to decide ; to repeat all the facts in 
 each case to prevent misapprehension, would be endless." ^ 
 
 § 64. Practice of Ecclesiastical Courts — Importance of under- 
 standing it. — A knowledge of the peculiar practice of these 
 courts is also, in many instances, important to an understand- 
 ing of the precise point involved in a decision, or the precise 
 weight to which it is entitled as an authority. For example, 
 one possessing such knowledge would know, without the aid 
 of a particular observation from the bench, that a judgment 
 upon the admissibility of a pleading, especially if favorable to 
 its admission, and more especially a mere dictum of the judge 
 in debating its admissibility, is less to be regarded than a final 
 
 1 See Report of Ec. Com. abr. ed. of them clergymen — of no particular 
 
 28. These observations apply particu- legal education, but their decisions 
 
 larly to the courts held at the metrop- are not reported, 
 olis. A very large proportion of the 2 Bishop Mrst Boo'k, § 452. 
 provincial ecclesiastical judicatories are ^ Phillips v. Phillips, 1 Robertson, 
 
 presided over by gentlemen — many 144, 157. 
 
 VOL. I. 4 49 
 
§ 65 SOURCES OP AUTHORITY. [BOOK II. 
 
 adjudication.! And many of the ecclesiastical decisions, both 
 final and interlocutory, establish important principles of gen- 
 eral law, pertaining to the subjects under investigation, while 
 still the principles can be evolved or perceived only by a per- 
 son familiar with the practice of those courts. This considera- 
 tion goes far to reconcile the author to the necessity, which 
 will be upon him when he comes to discuss the subject of 
 divorce practice in this country, of stating, in brief, the leading 
 features of the practice of the English ecclesiastical tribunals.^ 
 Though the matrimonial and probate jurisdictions have now 
 departed from them, the reports of their former doings live ; 
 and, so far as our practice follows tlieirs, they, and not the 
 new English judicatories having the care of these subjects in 
 England, are our guide. 
 
 § 65. New Jurisdiction — Divorce Court — (Late English Stat- 
 utes, in the Note). — An act of Parliament, dated August 28, 
 1857 (20 & 21 Vict. c. 85), has now, as just intimated, deprived 
 the English ecclesiastical courts, /rom and after its going into 
 operation in the year 1858, of their jurisdiction over matri- 
 monial causes ; transferring it to a new court, styled " The 
 Court for Divorce and Matrimonial Causes." ^ Another and 
 
 1 See Durant v. Durant, 1 Hag. Ec. over the subject. " No decree shall 
 
 733, 768, 3 Eng. Ec. 310, 324. hereafter be made for a divorce a mensa 
 
 ^ Vol. II. § 215 et seq. et ihoro ; but, in all cases in which a 
 
 8 1. We, in this country, have so decree for a divorce a mensa et thoro 
 
 often occasion to consult the English might now be pronounced, the court 
 
 books, and the decisions of the new may pronounce a decree for a judicial 
 
 Divorce Court have become so numer- separation, which shall have the same 
 
 ous, that I deem it desirable to present, force and the same consequences as 
 
 in this Note, a brief view of the late a divorce u. mensa et thoro now has." 
 
 English statutory law on this subject. This language, however. Is qualified 
 
 2. Stat. 20 & 21 Vict. c. 85, men- by that of another section (25) which 
 
 tioned in the text, is in 48 sections, provides, that, " in every case of a 
 
 Besides matters of mere detail, it takes judicial separation, the wife shall, from 
 
 from the ecclesiastical courts all juris- the date of the sentence and whilst the 
 
 diction " in respect of divorces a mensa separation shall continue, be considered 
 
 et thoro, suits of nullity of marriage, as a, feme sole with respect to property 
 
 suits of jactitation of marriage, suit« of every description which she may 
 
 for restitution of conjugal rights," &c., acquire or which may come to or de- 
 
 and empowers the new court to en- volve upon her ; and such property may 
 
 force the decrees and orders previously be disposed of by her in all respects as 
 
 made by the ecclesiastical courts in a feme sole, and on her decease the 
 
 causes matrimonial. Suits pending it same shall, in case she shall die intes- 
 
 transfers into the new court ; and gives tate, go as the same would have gone 
 
 to the new court general jurisdiction if her husband had been then dead ; 
 
 50 
 
CHAP. III.] 
 
 ENGLISH ECCLESIASTICAL LAW. 
 
 §65 
 
 earlier act of the same session took away from those tribunals, 
 in like manner, their jurisdiction over testamentary causes, 
 
 provided, that, if any such wife should 
 again cohahit with her husband, all 
 such property as she may be entitled 
 to when such cohabitation shall take 
 place shall be held to her separate use, 
 subject, however, to any agreement in 
 writing made between herself and her 
 husband whilst separate." And this gen- 
 eral idea is further expanded in § 26, 
 which speaks of her right to contract, sue 
 and be sued, and the like. The statute 
 provides that a sentence of judicial 
 separation " may be obtained either by 
 the husband or the wife, on the ground 
 flf adultery, or cruelty, or desertion 
 without cause for two years and up- 
 wards." It retains the suit for the 
 restitution of conjugal rights ; and, 
 moreover, it makes provision (as to 
 which it was amended by 21 & 22 
 Vict. u. 108, and again by 27 & 28 
 Vict. c. 44) whereby a wife deserted 
 by her husband may have protection 
 ' as to her property. As to divorces 
 dissolving the bond of marriage, the 
 statute has the following provisions : 
 § 27. " It shall be lawful for any hus- 
 band to present a petition to the said 
 court, praying that his marriage may 
 be dissolved, on the ground that his 
 wife has since the celebration thereof 
 been guilty of adultery ; and it shall be 
 lawful for any wife to present a peti- 
 tion to the said court, praying that her 
 marriage may be dissolved, on the 
 ground that since the celebration there- 
 of her husband has been guilty of in- 
 cestuous adultery, or of bigamy with 
 adultery, or of rape, or of sodomy or 
 bestiality, or of adultery coupled with 
 such cruelty as without adultery would 
 have entitled her to a divorce a mensa 
 et thoro, or of adultery coupled with 
 desertion, without reasonable excuse, 
 for two years or upwards ; and every 
 such petition shall state as distinctly 
 as the nature of the case permits the 
 facts on which the claim to have such 
 marriage dissolved is founded : provided, 
 that for the purposes of this act incest- 
 uous adultery shall be taken to mean 
 
 adultery committed by a husband with 
 a woman with whom if his wife were 
 dead he could not lawfully contract 
 marriage by reason of her being within 
 the prohibited degrees of consanguinity 
 or afilnity ; and bigamy shall be taken 
 to mean marriage of any person, being 
 married, to any other person during 
 the life of the former husband or wife, 
 whether the second marriage shall 
 have taken place within the dominions 
 of her majesty or elsewhere. § 28. 
 Upon any such petition presented by a. 
 husband, the- petitioner shall make the 
 alleged adulterer a co-respondent to 
 the said petition, unless on special 
 grounds, to be allowed by the court, 
 he shall be excused from so doing ; 
 and, on every petition presented by a 
 wife for dissolution of marriage, the 
 court, if it see fit, may direct that the 
 person with whom the husband is al- 
 leged to have committed adultery be 
 made a respondent ; and the parties, or 
 either of them may insist on having 
 the contested matters of fact tried by 
 a jury as hereinafter mentioned. § 29. 
 Upon any such petition for the disso- 
 lution of a marriage, it shall be the 
 duty of the court to satisfy itself, so 
 far as it reasonably can, not only as to 
 the facts alleged, but also- whether or 
 no the petitioner has been in any man- 
 ner accessory to or conniving at the 
 adultery, or has condoned the same, 
 and shall also inquire into any counter- 
 charge which may be made against the 
 petitioner. § 30. In case the court, on 
 the evidence in relation to any such 
 petition, shall not be satisfied that the 
 alleged adultery has been committed, 
 or shall find that the petitioner has dur- 
 ing the marriage been accessory to or 
 conniving at the adultery of the other 
 party to the marriage, or has condoned 
 the adultery complained of, or that the 
 petition is presented or prosecuted in 
 collusion with either of the respon- 
 dents, then and in any of the said cases 
 the court shall dismiss the said peti^ 
 lion. § 31. In case the court shall be 
 
 51 
 
§65 
 
 SOURCES OP AUTHORITT. 
 
 [book II. 
 
 giving it to a new tribunal ; and so we of the United States 
 have little occasion to consult the present doings of the eccle- 
 siastical courts. 
 
 satisfied on the evidence that the case 
 of the petitioner has been proved, and 
 shall not find that the petitioner has 
 been in any manner accessory to or 
 conniving at the adultery of the other 
 party to the marriage, or has condoned 
 the adultery complained of, or that 
 the petition is presented or prosecuted 
 in collusion with either of the respon- 
 dents, then the court shall pronounce 
 a decree declaring such marriage to be 
 dissolved : provided always, that the 
 court shall not be bound to pronounce 
 such decree if it shall find that the 
 petitioner has during the marriage 
 been guilty of adultery, or if the peti- 
 tioner shall, in the opinion of the court, 
 have been guilty of unreasonable delay 
 in presenting or prosecuting such peti- 
 tion, or of cruelty towards the other 
 party to the marriage, or of having 
 deserted or wilfully separated himself 
 or herself from the other party before 
 the adultery complained of, and with- 
 out reasonable excuse, or of such wil- 
 ful neglect or misconduct as has con- 
 duced to the adultery." The statute 
 then makes various provisions respect- 
 ing alimony, the damages recovered 
 against the particeps criminis, and the 
 like. On the question of evidence, its 
 terms are, § 48, " The rules of evi- 
 dence observed in the superior courts 
 of common law at Westminster shall 
 be applicable to and observed in the 
 trial of all questions of fact in the 
 court." The common law action of 
 arim. con. is abolished. 
 
 8. Various amendments and addi- 
 tions to the law were subsequently 
 made, but none altering what is set 
 down in the last paragraph. The 
 amendatory acts are the following : — 
 
 21 & 22 Vict. c. 93, provides, that 
 persons who are or claim to be natural- 
 born subjects may, by application to 
 the Divorce Court, have determined 
 the question of their legitimacy, or the 
 lawfulness of their own marriage. It 
 is in 11 sections. 
 
 52 
 
 21 & 22 Vict. c. 108, in 23 sections, 
 supplies further details respecting the 
 practice of the Divorce Court, and 
 dispositions of the property of the par- 
 ties. 
 
 22 & 23 Vict. c. 61, is of the like 
 sort. 
 
 23 & 24 Vict. c. 144, in 8 sections, 
 is also of the like sort. In § 7 it con- 
 tains a provision of great consequence, 
 constantly before the court in subse- 
 quent cases. It is as follows : " Every 
 decree for a divorce shall in the first 
 instance be a decree nisi, not to be 
 made absolute till after the expiration 
 of such time, not less than three 
 months from the pronouncing thereof, 
 as the court shall by general or special 
 order from time to time direct; and 
 during that period any person shall be 
 at liberty, in such manner as the court 
 shall by general or special order in 
 that behalf from time to time direct, 
 to show cause why the said decree 
 should not be made absolute by reason 
 of the same having been obtained by 
 collusion, or by reason of material facts 
 not brought before the court ; and, on 
 cause being shown, the court shall deal 
 with the case by making the decree 
 absolute, or by reversing the decree 
 nisi, or by requiring further inquiry, 
 or otherwise as justice may require ; 
 and, at any time during the progress 
 of the cause, or before the decree is 
 made absolute, any person may give 
 information to her majesty's proctor of 
 any niatter material to the due deci- 
 sion of the case, who may thereupon 
 take such steps as the attorney-general 
 may deem necessary or expedient ; 
 and, if from any information or other- 
 wise the said proctor shall suspect that 
 any parties to the suit are or have 
 been acting in collusion for the pur- 
 pose of obtaining a divorce contrary to 
 the justice of the case, he may, under 
 the direction of the attorney-general, 
 and by leave of the court, intervene in 
 Ihe suit, alleging such case of collusion, 
 
CHAP. IV.J OUR MATRIMONIAL COMMON LAW. § 66 
 
 § 65 a. Reports of Divorce Court. — The regular, authorized 
 Reports of the Divorce Court are — " Reports of Cases decided 
 in the Court of Probate and in the Court for Divorce and Mat- 
 rimonial Causes," by Swabey and Tristram, beginning with 
 the organization of the court, and extending down to the com- 
 mencement of the " Law Reports." They are in four vol- 
 umes, the last being thin. In the Law Reports, Probate and 
 Matrimonial Causes constitute one of the divisions of the 
 Common Law series. Divorce cases are also found in the 
 various well known irregular reports. 
 
 CHAPTER IV. 
 
 THE COMMON LAW OP MARRIAGE AND DIVORCE IN THE UNITED 
 
 STATES. 
 
 66, 66 a. Introduction. 
 67, 68. Common Law independent of Courts. 
 69, 70. Courts the Offspring of Legislation. 
 71-77. How as to Marriage and Divorce Law. 
 78-86. How as to Practice in Matrimonial Causes. 
 
 § 66. General View. — Since the publication of the first 
 edition of this work, the author has had occasion to discuss 
 
 and retain counsel and subpoena wit- piration of six calendar months from 
 
 nesses to prove it ; and it shall be the pronouncing thereof, unless the 
 
 lawful for the court to order the costs court shall under the power now vested 
 
 of such counsel and witnesses, and in it fix a shorter time." 
 
 otherwise, arising from such interven- 29 Vict. c. 32, besides the above 
 
 tion, to be paid by the parties or such provision, contains regulations regard- 
 
 of them as it shall see fit, including a ing alimony and the suit for the resti- 
 
 wlfe if she have separate property ; tution of conjugal rights. 
 
 and, in case the said proctor shall not 30 Vict. c. 11, relates to alimony, 
 
 thereby be ftiUy satisfied his reasonable but it applies only to Ireland. 
 
 costs, he shall be entitled to charge 31 & 32 Vict. c. 77, amends the reg- 
 
 and be reimbursed the difference as ulations concerning appeals from the 
 
 a part of the expense of his office." Divorce Court to the House of Lords. 
 
 This act was, by its terms, to continue 33 & 34 Vict. c. 110, provides a di- 
 
 only for a limited period ; but it was vorce court for Ireland, and amends 
 
 made perpetual by 25 &. 26 Vict, c. 81. the Irish marriage laws. 
 
 By 29 Vict. e. 32, § 3, it was provided, 34 & 35 Vict. c. 49, makes further 
 
 that " no decree nisi for a divorce shjU provisions on the same subject as the 
 
 be made absolute until after the ex- last. 
 
 63 
 
§ 68 SOURCES OP AUTHORITY. [BOOK II. 
 
 elsewhere the nature and origin of our unwritten law.^ And 
 he does not intend to illustrate at length, in one of his books, 
 what is sufficiently explained in another. But while the 
 doctrines unfolded in his other work, and the statements made 
 in the last chapter, sufficiently show tBat the law of the 
 ecclesiastical courts relating to marriage and divorce must be 
 a part of our common law, the proposition lies so much in 
 obscurity in the reports as to require a further elucidation of 
 it here. We shall look at it in the light both of principle and 
 of authority. 
 
 66 a. How the Chapter Divided. — In this chapter, therefore, 
 we shall consider, I. The Common Law of the Country as 
 existing independently of the Courts ; II. The Doctrine that 
 the Courts are the Offspring of Legislation ; III. How as 
 respects Marriage and Divorce Law ; IV. How as to the Prac- 
 tice in Matrimonial Causes. 
 
 I. The Common Law of the Country as existing independently 
 
 of the Courts. 
 
 § 67. Colonists bring La-w — Conquered Country. — In the 
 last chapter 2 we adverted to the general rule, that English 
 colonists to an uninhabited country carry with them to their 
 new locality their own English laws, except such as are inap- 
 plicable to their altered relations and circumstances.^ The 
 rule as to emigrants to a conquered country is different ; and, 
 though Blackstone considered the American colonies to be of 
 the latter class,* his opinion is manifestly erroneous ; and both 
 the reason of the thing, and the judicial decisions, English 
 and American, are the other way.* This general doctrine, in 
 its applicability to this country, is everywhere recognized by 
 our courts, and, in most of the States, it has been confirmed 
 either in the written constitution, or by legislative enactment.® 
 
 § 68. " All Law " — Matrimonial Law. — In Considering the 
 applicability of this doctrine to any particular English law, 
 
 1 Bishop First Book, § 43-59. Burge Col. & For. Laws, preliminary 
 
 2 Ante, § 48. chap. p. 31, 32. 
 
 s 1 Bl. Com. 107 ; 1 Kent Com. 343, 4 1 Bl. Com. 107. 
 473 ; 1 Story Const. § 147, 148 ; 1 5 1 Story Const. § 152-157. 
 
 54 
 
 6 Bishop First Book, § 51-59. 
 
CHAP. IV.] OUR MATRIMONIAL COMMON LAW. § 69 
 
 the question of what English tribunal administers it in Eng- 
 land is in reason wholly immaterial.^ So the language of the 
 books is general, "-all laws;"^ and, though in some of the 
 American cases the term " common law" is used,^ yet it is so 
 employed in its larger sense, as signifying all law not resting 
 exclusively on express legislative sanction, or the letter of a 
 written constitution. But aside from this view, the courts of 
 England have specifically held, that the matrimonial law of the 
 ecclesiastical tribunals is a branch of the law which colonists 
 take with them.* The weight of American decision is to the 
 same effect, but this we shall consider further on.^ 
 
 II. The Doctrine that the Courts are the Offspring of Legisla- 
 tion. 
 
 § 69. Colonists do not take Courts — Horo- the Latv before 
 Courts established. — Equally plain also is the proposition, as 
 one both of fact and of legal doctrine, that colonists do not take 
 with them the courts of the mother country. And from this 
 proposition results another, likewise both of fact and of legal 
 doctrine, that, during the time intervening between the settle- 
 ment of the colony and the establishment of the courts, the 
 laws must remain practically inoperative.^ How long a period 
 
 1 Terrett v. Taylor, 9 Cranch, 43 ; 507, 512. But this is not the doctrine 
 Pawlett V. Clark, 9 Cranch, 292. which most prevails in this country ; at 
 
 2 Blankard v. Galdy, 2 Salk. 411 ; all events, it is not generally accepted 
 Anonymous, 2 P. Wms. 75. in terms so broad. As a matter of legal 
 
 s Commonwealth v. Knowlton, 2 principle, if the legislature should estab- 
 
 Mass. 530, 534 ; Sackett v. Sackett, 8 lish a system of laws, not mentioning 
 
 Pick. 309, 316. any court in which they were to be 
 
 < Lautomr v. Teesdale, 8 Taunt. 830 ; enforced, the tribunal best adapted to 
 
 Eex V. Brampton, 10 East, 282 ; Cat- enforce them ought to take the juris- 
 
 teraU«. Catterall, I Robertson, 580, 581; diction. See post, § 73. Yet such a 
 
 ante, § 56. result rests on a reason inapplicable to 
 
 5 Post, § 71 et seq. the circumstances mentioned in our 
 
 6 Some judges have suggested, and text. There is, however, a jurisdiction, 
 in a few Instances have partly acted on assumed by the equity courts in this 
 the idea, that, as observed in an Ar- country, to pronounce a marriage void 
 kansas case, " in our body politic, if by for fraud, and the like, as we shall see 
 any means the ordinary tribunal for af- in the proper place (Vol. II. § 291-293, 
 fording relief be destroyed, some other 570), withwhich jurisdiction wecan find 
 tribunal must be found to supply its little ground of principle to complain, 
 place ; which is generally the courts of though it is not exercised by the Eng- 
 equity, it being the boast of those tri- lish equity tribunals. Another jurisdic- 
 bunals to give relief where others are tion, taken by the courts of equity in 
 incompetent." Kose v. Kose, 4 Eng. some of our States, but not generally 
 
 55 ' 
 
§ 70 SOURCES OP AUTHORITY. [BOOK II. 
 
 of this kind of torpidity would be required to exhaust the life 
 of the laws, so that on the organization of courts they would 
 not be admitted as rules of decision, or whether this result 
 would ever come, we know not ; only we know, that a longer 
 time would be necessary than has yet elapsed since the settle- 
 ment of this country. Courts were rarely, if ever, organized 
 here, at once, with power to administer all the laws which the 
 colonists brought with them ; for instance, in many of the 
 colonies, even down to the Revolution, there were no tribunals 
 competent to administer equity ; and in some of the States, 
 since that time, only limited equity powers have been conferred ; 
 yet the body of equity law has only slumbered, it has not died.^ 
 And though our ancestors might have established, if they had 
 chosen, a tribunal in each colony with jurisdiction to admin- 
 ister all the law existing in the colony, yet in fact they 
 adopted, instead of this, the English system ; and the common- 
 law courts and the equity, for instance, were here kept within 
 their respective limited spheres, the same as in England. The 
 consequence is, that in all parts of our country has been 
 witnessed the sight, which to English eyes would appear 
 strange, of some portion of the law lying in repose, ready to 
 be awakened at the call of any tribunal to which the legislature 
 should give jurisdiction over a particular subject embraced by 
 the law. 
 
 § 70. La-OT- in Repose, continued — Equity — States and United 
 States. — An illustration of this principle is observable in the 
 fact, that some of the States, as Massachusetts, having no 
 distinct equity tribunals, have given from time to time to their 
 common-law courts jurisdiction over particular subjects of 
 equity ; and that, under these circumstances, the entire body 
 of equity law, as administered in tribunals separate from those 
 of the common law in England, attaches to the subject imme- 
 diately on the jurisdiction being created. And when a com- 
 mon-law court gets a jurisdiction of this sort by reason of the 
 principal subject, it entertains all questions incidental to the 
 principal one, through the entire range of equity.^ The same 
 
 admitted (Vol. II. § 350-363), is to i 1 Story Eq. Jurisp. § 56, 58. 
 grant alimony without divorce, con- ^ Burditt v. Grew, 8 Pick. 108 ; 
 
 fessedly not within the power of equity Pratt v. Bacon, 10 Pick. 123 ; Holland 
 
 in England. v. Cruft, 20 Pick. 321. 
 66 
 
CHAP. IV.] OUR MATRIMONIAL COMMON LAW. § 71 
 
 general doctrine appears still more plain in the fact, that, in 
 those States where there are no equity tribunals, or only 
 limited ones, the United States courts exercise full equity 
 powers, whenever the citizenship of the parties or any other 
 cause gives them the authority to act at all in the premises. 
 This they could not do, if equity law were not as really a law 
 of those States as if there were State judicatories to administer 
 it ; ^ so, at least, the author understands, though there are 
 cases, not necessary to be cited here, from which it would 
 appear that this opinion has not always been an active presence 
 in the minds of the United States judges. 
 
 III. How as respects Marriage and Divorce Law. 
 
 § 71. General Doctrine. — The foregoing course of argument, 
 established at each point by authorities drawn from decisions 
 in causes not matrimonial, conducts us to the true answer to 
 the question, whether the English matrimonial law is binding 
 in marriage and divorce causes in this country. We have no 
 ecclesiastical courts, and we never had them, even in colonial 
 times ;^ therefore no tribunal in this country can take juris- 
 diction of this class of questions, without the authority of a 
 statute. But when a statute has given the authority, the 
 tribunal is to exercise it according to the law of the land ; 
 dormant here, indeed, since the settlement of the country, yet 
 derived by us at the time of its settlement from England, where 
 it was administered in the ecclesiastical courts. This view, 
 though opposed apparently by some cases, which to the casual 
 eye are adverse,^ is substantially borne out by other and direct 
 adjudications, which may be deemed to have settled the law as 
 thus stated.* 
 
 1 Eobinson v. Campbell, 3 Wheat. 10 N. H. 272, and other cases, where 
 
 212, 222 ; United States i> Howland, 4 the Enghsh decisions are cited appar- 
 
 Wheat. 108, 115 ; Lorman v. Clarke, 2 ently as authority. See also Burtis v. 
 
 McLean, 568 ; Gordon v. Hobart, 2 Burtis, 1 Hopkins, 557 ; Perry v. Perry, 
 
 Summer, 401, 405; Mayer u.Foulkrod, 2 Paige, 501; Ristine v. Ristine, 4' 
 
 4 Wash. C. C. 349, 854; Fletcher v. Rawle, 460; Olin v. Hungerford, 10 
 
 Morey, 2 Story, 555. Ohio, 268 ; 2 Dane Ab. 301. 
 
 i As to Virginia, see, on this point, * Crump v. Morgan, 3 Ire. Eq. 91, 
 
 Godwin v. Lunan, Jefferson, 96. 98 ; Williamson v. Williamson, 1 Johns. 
 
 3 Parsons v. Parsons, 9 N. H. 309. Ch. 488, 491 ; Barrere v. Barrere, 4 
 
 But compare it with Quincy v. Quincy, Johns. Ch. 187, 196 ; Wood v. Wood, 
 
 57 
 
§ 72 SOURCES OF AUTHORITY. [BOOK II. 
 
 § 72. Cases reviewed — Impotence. — Of the cases appar- 
 ently adverse to this view, that of Burtis v. Burtis, decided by 
 Chancellor Sanford, in New York, is an admirable illustration 
 of one of the principles just mentioned ; namely, that a juris- 
 diction must be. conferred, directly or indirectly, by statute, 
 before the particular law can be practically administered.^ 
 The question arose in a proceeding instituted before a court of 
 equity to annul a marriage on the ground of physical impotence 
 in the defendant. At the time the bill was filed, the statute 
 had not been enacted authorizing the courts of equity to grant 
 divorces for impotence ; but the plaintiff contended, that the 
 right existed under the laws which our forefathers brought 
 from England, and that the equity court was the proper one 
 to exercise the jurisdiction. The Chancellor, however, decided, 
 that, this being a matrimonial question of which the ecclesi- 
 astical tribunals have exclusive cognizance in England, he could 
 not afford the relief, notwithstanding he was authorized to 
 grant divorces for certain other specific causes. But in pro- 
 nouncing this opinion, he took occasion to assert apparently 
 still broader ground ; and to hold, that the statutes of the 
 State authorizing divorces are original provisions, and that no 
 part of the English ecclesiastical law had been adopted in New 
 York.2 He reviewed the history of divorces in the colony ; 
 and showed, that in colonial times none had been granted by 
 the governpaent or its courts, except four in 1670 and 1672, by 
 Governor Lovelace, who, either alone or in conjunction with 
 his council, seems to have exercised all magistracy, executive, 
 legislative, and judicial ; that, by the constitution of 1777, such 
 
 2 Paige, 108 ; Burr v. Burr, 10 Paige, man, 18 Ark. 320 ; EeBarron v. LeBar- 
 
 20, 35 ; Johnston v. Johnston, 14 Wend, ron, 85 Vt. 365. 
 
 637, 642 ; North v. North, 1 Barb. Ch. i s. p. in Butler v. Butler, 4 Litt. 
 
 241 ; Head v. Head, 2 Kelly, 191 ; 201 ; Dickinson v. Dickinson, 3 Murph. 
 
 Lovett V. Lovett, 11 Ala. 763 ; Moyler 327. And see Boggess v. Boggess, 4 
 
 V. Moyler, 11 Ala. 620 ; Jeans v. Jeans, Dana, 307. 
 
 2 Harring. Del. 38 ; Almond v. Al- 2 it jg ^gll to bear in mind the fact, 
 
 mond, 4 Rand. 662 ; Thomberry v. that a considerable proportion of the 
 
 Thomberry, 2 J. J. Mar. 322 ; Devan- ecclesiastical law, such as the law con- 
 
 bagh V. Devanbagh, 5 Paige, 554, 556 ; ceming the settlement of the estates of 
 
 McGee v. McGee, 10 Ga. 477 ; Wright deceased persons, of marriages by con- 
 
 i>. Wright, 6 Texas, 3, 21 ; Nogees v. tract per verba de prassenti, and so on, 
 
 Nogees, 7 Texas, 538 ; Bauman v. Ban- had always been in actire use in New 
 
 York, as in other States. 
 
 58 
 
CHAP. IV.] OUR MATBIMONIAL COMMON LAW. § 74 
 
 parts of the common law of England, and of the statute law of 
 England and Great Britain, and of the acts of the legislature 
 of the colony, as together formed the law of the colony on the 
 thirteenth day of April, 1775, were declared to be the law of 
 the State ; and he drew the inference, that, therefore, the law 
 of England concerning divorces had not been received in the 
 colony, and did not, under the constitution, become a law of 
 the State'.i 
 
 § 73. Contdnued. — Chancellor Walworth afterward, in the 
 case of Perry v. Perry, expressed his approval of this decision, 
 in language which might seem to include a qualified approba- 
 tion of the reasoning on which it is founded. And he laid down 
 the following propositions : " Where the right claimed as a 
 common-law right is of such a nature that it cannot be enjoyed 
 in any manner, except by the direct interference of a judicial 
 tribunal to give the remedy, if no tribunal has been organized 
 by the law-making power for that purpose, we may fairly con- 
 clude the right does not exist. But whenever the legislature 
 distinctly gives the right, without creating or appointing any 
 particular tribunal to administer the remedy, we may fairly 
 infer that it intended to vest that power in some of the existing 
 tribunals of the countiy." ^ 
 
 § 74. Continued — Condonation — Temporary Alimony — 
 Walworth's View. — But it is worthy of observation, that the 
 peculiar reasoning of Chancellor Sanford, in Burtis v. Burtis, 
 was not essential to the point decided ; and that the same con- 
 clusion would have followed from the course of argument laid 
 down in the before-written sections. The same may be said of 
 the case decided by Chancellor Walworth ; which case, more- 
 over, was determined upon another and different point in it ; 
 so that we may regard his propositions, above quoted,* in the 
 light only of dicta. And plainly, neither of these learned 
 judges intended to affirm any thing more than that a court, 
 having no inherent jurisdiction over a subject either by statute 
 or at common law, is not authorized to assume jurisdiction, 
 merely because the legislature has not established such a 
 
 1 Burtis V. Burtis, 1 Hopkins, 557. ^ Ante, § 73. 
 
 2 Perry v. Perry, 2 Paige, 501. See 
 ante, § 69, note. 
 
 59 
 
§ 75 SOURCES OP AUTHORITY. [BOOK II. 
 
 tribunal as the one in which the remedy is administered in 
 England ; and that the exercise of the right must await the 
 action of the legislative will, in other words, must remain in 
 abeyance until a jurisdiction is created. For, though the de-' 
 cisions of Chancellor Sanford run through but one volume of 
 Reports, of which the case above cited is nearly the last, and 
 thus the occasion to make this limitation to his opinion never 
 arose ; yet Chancellor Walworth, in a case in the sam*e volume 
 with the one above mentioned, and but a year before, expressly 
 affirmed, of the law of condonation, that it did not rest upon 
 the statutes of the State, but that " they are only declaratory 
 of what the law was previous to their enactment." For the 
 previous law, he referred to an English ecclesiastical authority, 
 and added : " In that case Sir William Scott shows such to 
 have been the settled law of England long before the American 
 Revolution. It was, therefore, the law of this State at the time 
 this suit was instituted." ^ And what is further conclusive of 
 his opinion is, that not only for a series of years afterward, 
 through his entire judicial career, was he in the habit of citing 
 the English ecclesiastical decisions as authoritative precedents 
 in causes of divorce, but in one instance he granted ad interim 
 alimony where the statute was silent, — the point directly in 
 controversy, — on the sole ground of such having been the law 
 before and without the aid of the statute. In the course of his 
 observations in this latter case occurs the following pointed 
 remark, in relation to one of the English decisions : " The first 
 of these cases," he said, " was more than twenty years previous 
 to the Revolution, and shows what was the settled law on the 
 subject at that time." ^ Also in Burr v. Burr he observed: 
 " I have no doubt that the principles of the English decisions 
 apply with full force to suits in this State for separation from 
 bed and board for cruel treatment." ^ 
 
 § 75. Kenfs View. — So Chancellor Kent of the same State 
 had long before laid down the broad proposition, that " the 
 general rules of English jurisprudence on this subject must be 
 
 1 Wood V. Wood, 2 Paige, 108. 2 North v. North, 1 Barb. Ch. 241, 
 
 See also, to the same point, the opinion 245. 
 
 of Savage, C. J., in Johnson v. John- ^ jjurr v. Burr, 10 Paige, 20, 35. 
 
 son, 14 Wend. 637, 642. And see Devanbagh «. Devanbagh, 5 
 
 60 
 
 Paige, 584, 556. 
 
CHAP. IV.J OUR MATRIMONIAL COMMON LAW. § 77 
 
 considered as applicable, under the regulation of the statute, to 
 this newly-acquired branch of equity jurisdiction," and, when 
 the legislature conferred on the courts the power to grant 
 divorce, it " intended that those settled principles of law and 
 equity on this subject which may be considered as a branch of 
 the common law, should be here adopted and applied." ^ 
 
 § 76. How laid down in Georgia. — This question has been 
 ably discussed by the Supreme Court of Georgia. No tribunal 
 in this State — so the judge explained — had authority to hear 
 causes of divorce, until the constitution of 1798 took effect, or 
 perhaps until the passage of the act of 1802, four years later, 
 to carry out an article of the constitution upon the subject. 
 The article limited the causes of divorce to " legal principles" 
 construed (perhaps erroneously, but this is not the point) to 
 mean the law of the State as it stood at the time the constitu- 
 tion was adopted. And the court held, that, as there had been 
 no previous colonial or State legislation on the subject, " that 
 branch of the common law known and distinguished as the 
 ecclesiastical law " was, at this time, the law of the State, 
 which, in its application to divorce, was thus made substan- 
 tially a part of the constitution itself. True, there had been a 
 general act, in 1784, adopting the common law with the usual 
 qualification, but this seems not to have much influenced the 
 decision. Indeed it could not, for it was merely declaratory 
 of the common-law rule.^ 
 
 § 77. The Argument from Constant Practice — Nature of the 
 English Law. — But if the adjudications of our courts failed to 
 establish the foregoing views by direct authority, they would 
 still establish them by necessary implication. For it is the 
 universal fact, running through all the cases, that everywhere 
 in this country the English decisions on questions of mar- 
 riage and divorce are referred to with the same apparent 
 deference which is shown, on other subjects, to the decisions 
 of the English common-law and equity tribunals. And in a 
 matter like this, the usage of the courts determines the law of 
 the courts. Nor, as we contemplate the learning and prac- 
 
 1 Williamson t). Williamson, IJohns. Finch u. Finch, 14 Ga. 362. But see 
 Ch. 488. Brown v. Westbrook, 27 Ga. 102. See 
 
 2 Head v. Head, 2 Kelly, 191. See post, § 99. 
 also, as illustrating the same point, 
 
 61 
 
§ 78 SOURCES OP ADTHORITT. [BOOK II. 
 
 tical wisdom which pervade the judgments heretofore delivered 
 at Doctors' Commons, can we fail to join in the opinion of 
 Chancellor Kent, that this " supplemental part of the common 
 law seems to be a brief, chaste, and rational code. It forms, 
 in some respects, a contrast to the unwieldy compilations 
 which constitute the canon law of the Roman Catholic coun- 
 tries, and which contain very circumstantial and many 
 unprofitable regulations on the subject of marriage and 
 divorce." ^ And though by some of our judges the wisdom of 
 the ecclesiastical courts has not been deeply studied, the omis- 
 sion has arisen rather from the difficulty of access to its 
 sources, and from the many calls to investigation in other legal 
 fields, than from any want of belief in the binding authority 
 here of this branch of the English law, or any failure to appre- 
 ciate its intrinsic excellence. 
 
 IV. How as to the Practice in Matrimonial Causes. 
 
 § 78. Distinction between Law and Practice. — In the fore- 
 going sections of this chapter, we have examined the subject 
 in a somewhat general way, without descending to the dis- 
 tinction, recognized in reason and somewhat in adjudication, 
 between the law which binds the courts, and the practice 
 which the courts may in some degree themselves control. To 
 a greater or less extent, it is within the power, and properly 
 so, of every judicial tribunal to regulate the course of proce- 
 dure whereby suitors obtain the justice which the law leaves 
 them no discretion to withhold, but commands them, in every 
 case properly brought before them and sustained in proof, to 
 grant. There is also room for the suggestion, that, when the 
 legislature commits to a tribunal jurisdiction over a particular 
 cause of divorce, it cannot be presumed to intend that the 
 tribunal shall administer the remedy in forms of procedure 
 altogether alien to its ustial ones. Yet, on the other hand, 
 when courts of law have been invested with equity jurisdiction, 
 they have pursued the practice of the equity courts.^ Perhaps 
 this may be accounted for in part by the fact, that equity rem- 
 edies could not be administered in common-law forms. But, 
 
 1 Barrere v. Barrere, 4 Johns. Ch. 2 ggg Commonwealth v. Sumner, 5 
 187, 196. Pick. 860. 
 
 62 
 
CHAP. IV.] OUR MATRIMONIAL COMMON LAW. § 80 
 
 either in consequence of some course of reasoning which none 
 of tlie cases explain, or in consequence of the fact, that, until 
 latterly, the practice of the ecclesiastical courts was not under- 
 stood even in England beyond the walls of Doctors' Commons, 
 the American tribunals have not, to any minute extent, copied 
 the English practice, though in some particulars they have done 
 so ; and we cannot, therefore, consider it as, in the absence of 
 a statutory direction, generally binding in this country. The 
 precise line between practice and law, as applied to this dis- 
 tinction, has been nowhere drawn, and it must be left to good 
 sense and^further judicial inquiry. The statutes of some of 
 our States, it may be observed, direct how the procedure shall 
 be ; and these observations do not relate to them. 
 
 § 79. Views of Procedure. — When we look into the courts of 
 different countries, we observe, that, though they may adminis- 
 ter substantially one common justice to suitors, tliey arrive at 
 the end by ways often diverse from one another, while the 
 minuter detail of their doings differs still more. From this 
 fact we are led to another of the same sort ; it is, that in coun- 
 tries like England, and like some of our States, where there are 
 separate tribunals for the administration of distinct branches 
 of one common jurisprudence, the same diversity in the prac- 
 tice of the different tribunals is also observable. But extend- 
 ing our inquiries still further we find, that, even in the same 
 courts, when presided over by different judges, the minuter 
 practice, in some of its details, differs. The result of all which 
 is, that, in a degree, the practice of a court is what the pre- 
 siding judge may be pleased to make it ; in a degree, are the 
 words, for in very many respects, indeed in most, the judge 
 who for the time being presides over a tribunal is bound by 
 the course of procedure already established by precedent. 
 
 § 80. Continued — Rules of Court. — Perhaps we cannot bet- 
 ter elucidate the propositions stated in the last section, than 
 by referring to the law which concerns what are called general 
 rules of court, whereby the judges who control a tribunal regu- 
 late in some measure its practice. It has been the custom of 
 all our English and American judges, — those who presided 
 ov6r the equity, the common-law, the ecclesiastical, and all the 
 other courts, — to establish from time to time general rules of 
 
 63 
 
§ 81 SOURCES OF AUTHORITY. [BOOK II. 
 
 procedure ; yet, strange though it may seem, our books of the 
 law furnish us but little information as to the extent of the 
 judges' power in this respect. That they have a certain extent 
 of power, that the power has its limits, — these are two propo- 
 sitions which no lawyer will dispute ; yet, bald as they are, 
 they furnish us with almost all the light which we have in the 
 matter. Perhaps the curious inquirer might satisfy himself, 
 in some measure, by opening any book containing the general 
 rules of any of the English courts, as they stand historically 
 from the beginning of these things to the present time, and 
 assuming the power to exist in the judges to make the rules. 
 Yet the query would still present itself, whether, on the one 
 hand, the judges had exhausted their full powers in this re- 
 spect ; or, on the other hand, whether in some instances they 
 might not have overstepped their power. And it would be 
 necessary for the inquirer to ascertain in each case, also, 
 whether there was not an act of Parliament in pursuance of 
 whose authority the rule was made. 
 
 § 81. Rules of Court, continued. — The history of the rules of 
 court in England is believed by the author of these pages, who 
 does not deem the matter of sufficient importance to justify any 
 extended citation of authorities to sustain his propositions, to 
 be substantially as follows: Anciently the entire judicature of 
 England was under the immediate control of the king, — he at 
 one time sat personally upon his own king's bench, and his 
 judges were then and for a long while afterward removable at 
 his pleasure. In this state of affairs, it was competent for him 
 to prescribe the practice of the court, and this he did by decree 
 or order, wherein he often included such things as would now 
 be deemed matters of general legislation. The decrees or 
 orders thus made are now, indeed, reckoned sometimes as 
 among the statutes of England ; for the old English statutes 
 are in part in the form of decrees by the king alone, in part in 
 the form of such decrees put forth with the concurrence of his 
 great council, in part in the form of petitions assented to by the 
 king, and so on. Beeves, in his history of the English law, 
 thus discourses upon this subject : " There is no way of 
 accounting for this extraordinary appearance of the old stat- 
 utes, but by supposing the state of our constitution and laws 
 64 
 
CHAP. IV.J OUR MATRIMONIAL COMMON LAW. § 81 
 
 to have been this, that, the judicature of the realm being in 
 the hands and under the guidance of the king and his justices, 
 it remained with him to supply the defects that occasionally 
 appeared in the course and order of proceeding ; which, being 
 founded originally on custom and usage, was, in its nature, 
 more susceptible of modification than any positive institution, 
 that could not be easily tampered with without a manifest 
 discovery of the change. In an unlettered age, it was con- 
 venient and beneficial that the king should exercise such a 
 superintendence over the laws as to declare, explain, and 
 direct what his justices should do in particular cases ; such 
 directions were very readily received as positive laws, always 
 to be observed in future ; and, no doubt, numbers of such 
 regulations were made, of which we have at present no traces. 
 While this supreme authority was exercised only in further- 
 ance of justice, by declaring the law, or even altering it, in 
 instances which did not much intrench upon the interest of 
 the great men of the kingdom, it was suffered to act in fi-ee- 
 dom. But no alteration in the law which affected th& persons 
 or property of the barons could be attempted with safety, 
 without their concurrence in the making of it ; as, indeed, it 
 could not always be executed without the assistance of their 
 support. Thus it happened, that, when any important change 
 was meditated by the king, a commune concilium was sum- 
 moned, where the advice of the magnates was taken ; and then 
 the law, if passed, was mentioned to be passed with their 
 concurrence. On the other hand, had the nobles any point 
 which they wanted to be authorized by the king's parliamentary 
 concurrence, a commune concilium was called, if the king could 
 be prevailed on to call one ; and, if the matter was put into a 
 law, the king here was mentioned to have commanded it, at 
 the prayer and request of his barons ; so that, one way or 
 other, the king is mentioned in all laws as the creative power 
 which gives life and effect to the whole." ^ Therefore we may 
 understand, that, as the kings of England withdrew from the 
 judicial seat, and as the judges became independent of their 
 sovereign, the latter assumed to themselves what had thereto- 
 fore been the kingly power of making general rules of court, 
 
 1 1 Keeve Hist. Eng. Law, 3d ed. 216. See also 2 lb. 354, 355; 3 lb. 143. 
 VOL. I. 5 65 
 
§ 83 SOURCES OP AUTHORITY. [BOOK 11. 
 
 except that they did not attempt to carry the power to so great 
 a length as the kings had before done. 
 
 § 82. Rules, of Court in Scotland. — In Scotland, the courts 
 ordain what are called acts of sederunt, an expression corre- 
 sponding very nearly to the English expression general rules of 
 court. The power to do this, however, is traced to an old 
 statute of the Scotch Parliament. Brskine observes : " The 
 powers committed by this statute to our Supreme Court are 
 precisely limited to the forms of proceeding, which may be the 
 reason why the Parliament hath in several instances ratified 
 acts of sederunt, where it might seem that the court had ex- 
 ceeded their powers. But it must be acknowledged that many 
 acts of sederunt have been made on matters of right, which, 
 without any aid from the authority of Parliament, the nation 
 hath acquiesced in universally. Such acts import no more 
 than a public notification of what the judges apprehend to be 
 the law of Scotland, which therefore they are to observe for the 
 future as a rule of judgment. When an act of sederunt is 
 confirmed by an inveterate custom and acquiescence of the 
 community, such custom constitutes law of itself in the most 
 proper acceptation of the words." ' 
 
 § 83. Rules of Court in the United States. — The legislation 
 of our several States has more or less regulated this matter of 
 general rules of court within the respective States. But there 
 are a few points upon which there have been judicial decisions 
 or dicta, and to these let us now turn, and so close our inves- 
 tigation of this particular topic. A learned Pennsylvania judge 
 once observed ; " Independently of all authorities to be found 
 in the books, it is self-evident that justice could not be admin- 
 istered in an orderly manner, under a complex system of laws, 
 without rules regulating the practice of the courts of justice. 
 These courts must necessarily have the power of framing such 
 rules as they may think best calculated to carry the laws into 
 execution with convenience and despatch. All courts must 
 have stated rules to go by ; which may be altered at pleasure, 
 as they may be found best to answer the public good." ^ And 
 the general doctrine that, in the language of another judge of 
 
 1 Brskine Inst. 1, 1, 40. ^ Yeates, J., in Barry v. Randolph, 
 
 3 Biun. 277, 279. 
 66 
 
CHAP. IV.] OUR MATRIMONIAL COMMON LAW. § 85 
 
 the same State, " every court of record [and undoubtedly to 
 some extent every court not of record] has an inherent power 
 to make rules for the transaction of its business, provided such 
 rules are not contradictory to the law of the land," ^ may be 
 deemed to be established American doctrine.^ 
 
 § 84. Rules of Court, continued — Authority — Interpretation. 
 — There can be no valid rule contravening the provisions of a 
 statute, or any doctrine of established general law, the benefit 
 of which the party has a right to claim ; ^ and, of course, 
 though the court may have established a valid rule, it may be 
 abolished by a legislative act, either in express terms annulling 
 it, or ordaining something contrary in effect to it.* But until 
 so abolished or superseded, or repealed by order of the court 
 itself, it cannot in a particular instance be disregarded by the 
 presiding judge, unless the rule itself provides for the exercise 
 of such a discretion.^ And there is a doctrine, the precise 
 extent and authority of which are not certain, to the effect, 
 that a rule of court cannot rest in parol, but it must be entered 
 of record, and perhaps published, else it will not have perfect 
 validity and force.^ Likewise a rule of court operates only 
 prospectively.' It must be so interpreted as to carry out its 
 intent, even though thereby its application is withheld from a 
 case to which in its letter it extends.^ 
 
 § 85. Law and Practice further distinguished — Statutes 
 creating a Jurisdiction. — The foregoing doctrines concerning 
 rules of court help us in our attempts to distinguish between 
 law and practice. They show, at least, that, though our 
 
 ' Tilghman, C. J., in Barry v. Ran- 250 ; Reist u. Heilbrenner, 11 S. & R. 
 
 dolph, supra, p. 278. 131. 
 
 2 See also Vanatta v. Anderson, 3 » The State v. Gale, 2 Wis. 693 ; 
 
 Binn. 417 ; Snyder u. Bauchman, 8 S. Bishop v. The State, 30 Ala. 34. 
 
 & R. 336 ; The State v. Clayton, 11 5 Hughes v. Jackson, 12 Md. 450 ; 
 
 Rich. 581 ; Haines v. Stauffer, 1 Harris, Burlington & Missouri River Railroad 
 
 Pa. 541 ; DeLeon v. Owen, 3 Texas, Co. u. Marchand, % Iowa, 468 ; Thomp- 
 
 153; People v. Jenks, 24 Cal. 11; and son o. Hatch, supra. And see Kath- 
 
 the cases cited in the notes to the next bone v. Rathbone, 4 Pick. 89. 
 
 section. So, in England, " All courts ^ Risher v. Thomas, 2 Misso. 98 ; 
 
 must have stated rules to go by." Owens v. Ranstead, 22 111. 161 ; Fuller- 
 
 I Anonymous, 1 Stra. 315. And see ton u. The Bank of the United States, 
 
 Robinson ■;. Bland, 1 W. Bl. 267, 264. 1 Pet. 604, 613. 
 
 ' Kennedy v. Cunningham, 2 Met. '' Dewey v. Humphrey, 5 Pick. 187 ; 
 
 Ky. 538 ; Thompson v. Hatch, 3 Pick. Owens v Ranstead, supra. 
 
 612, 614 ; Boas v. Nagle, 3 S. & R. » Ferguson v. Kays, 1 Zab. 431. 
 
 67 
 
§ 85 SOURCES OF AUTHORITY. [BOOK II. 
 
 ancestors may have imported to this country from the parent 
 land a particular branch of the law, administered there in a 
 tribunal not imported, and the like of which we have not set 
 up for ourselves, the legislature, in giving a jurisdiction over 
 this branch to a tribunal of another sort, may not have intended 
 to impose on it the peculiar foi"eign practice. There is an 
 illustrative doctrine of statutory interpretation, elsewhere 
 stated by the author as follows : " If a word or phrase, or 
 statutory provision, is adopted from the laws of another State, 
 or from England, or even from the civil law, it will ordinarily 
 be construed by us the same as in the law from which it was 
 taken ; but we are not in any absolute sense bound by the 
 foreign exposition, which is considered less controlling than 
 the domestic." ^ The result of which would seem to be, that, 
 since we are not absolutely bound by the foreign expositions, 
 a fortiori we are not by the foreign practice. And on this 
 point the Ohio court observed : " Where a practice has grown 
 up under a statute, in a particular and sovereign jurisdiction, 
 it is no just inference, that, if another sovereign jurisdiction 
 ingraft the same statute into their code, they intended to 
 ingraft also, into their practice, the practice founded upon it 
 in the jurisdiction from whence it was taken. The provisions 
 of the statute may be well adapted to the institutions of the 
 government adopting it. The practice founded upon it may 
 be adverse to these institutions ; and these facts must enter 
 into the determination, whether the construction is to be 
 adopted or not. This rests upon the decisions of courts, and 
 cannot be deduced from the mere fact of enacting the statute." ^ 
 At the same time we must bear in mind, that, when the legis- 
 lature gives to a court jurisdiction over a particular cause or 
 ground for divorce, it introduces no new law, but only author- 
 izes the tribunal to administer a pre-existing common law, as 
 already explained ; while, on the other hand, when it adopts a 
 statute from another State, it establishes, not a new jurisdic- 
 tion merely, but a new law ; consequently the view entertained 
 by the Ohio court may not necessarily apply to a divorce case. 
 Therefore it was laid down in Vermont, in a case which appears 
 to have been particularly well considered, that, when jurisdic- 
 1 Bishop Stat. Crimes, § 97. 2 Gray v. Askew, 3 Ohio, 466. 
 
 68 
 
CHAP. IV.J OUR MATRIMONIAL COMMON LAW. § 86 
 
 tion over any subject of divorce is bestowed on a judicial 
 tribunal, it is to be exercised according to the settled princi- 
 ples and practice of the English ecclesiastical courts, as far as 
 applicable to the altered condition of things here, and the 
 spirit of our laws ; and it is not a mere statutory jurisdiction, 
 limited wholly to the terms of the statute.^ 
 
 § 86. Conclusion and Summary. — The conclusion to which 
 the author has arrived, as the result of much reading and 
 reflection on this subject, is, that such parts of the English 
 practice as relate to the substantial rights of the parties, like, 
 for instance, the wife's claim to alimony pending a suit, and 
 some others, are just as binding on our tribunals, until a 
 statute changes the common law, as are those rules in the 
 English system which are technically termed the law, in dis- 
 tinction from the practice. As to questions of mere practice, 
 the author deems the true view to be this : If the matter is 
 one wherein the course of procedure was in the ecclesiastical 
 courts directly adverse to the ordinary course of procedure in 
 the American tribunal, then the English practice will be 
 rejected. If the English procedure, though unknown to the 
 usual American practice as concerns other things, is still not 
 repugnant to it, and the American procedure has provided no 
 course adapted to the case, the English procedure will be fol- 
 lowed. If an American statute has particularly provided for 
 the case, it, of course^ governs ; so does a rule of court, pro- 
 vided the rule is one which it was competent for the tribunal 
 to establish. These views are, indeed, general ; we shall for- 
 bear to descend into the particulars until we come to consider 
 particular questions of practice ; but, general as they are, they 
 will still help to guide us throughout the course of our entire 
 subsequent investigations. 
 
 1 LeBarron v. LeBarron, 35 Vt. 365. 
 
 69 
 
SOURCES OF AUTHORITY. [BOOK II. 
 
 CHAPTER V. 
 
 THE STATUTORY LAW OP MARRIAGE AND DIVORCE IN THE UNITED 
 
 STATES. 
 
 § 86 a. Scope of this Discussion. — It is not proposed to collect 
 and present to the reader the various provisions of statutes 
 found in our States, relating to this subject of marriage and 
 divorce ; but to give only a general view of the statutory law 
 as respects its peculiar features, and some of the principles by 
 which it is to be interpreted. Most of the details of statutory 
 interpretation, and the details of the statutes themselves, if to 
 be entered into at all in these volumes, will be found inter- 
 spersed through subsequent chapters. 
 
 § 87 . General View — State Laws. — The last chapter, 
 though, by its title, devoted to a consideration of our common 
 law of marriage and divorce, was, in fact, almost exclusively 
 occupied with the part of the subject which relates to divorce 
 alone. And the reason was, that, as to marriage, there is no 
 doubt, and what has not been debated in the courts does not 
 need to be debated here. The same remark applies, yet less 
 broadly, to the subject of the present chapter. All our mar- 
 riage and divorce laws, and of course all our statutes on the 
 subject, so far as they pertain to localities embraced within 
 the territorial limits of particular States, are State laws and 
 State statutes ; the national power, with us, not having legis- 
 lative or judicial cognizance of the matter within these locali- 
 ties.i 
 
 § 88. Jurisdiction of Congress. — Yet it was, of course, com- 
 petent for Congress to provide, as it did by Stat. 1860, c. 158, 
 while the District of Columbia was under its direct legislative 
 control, for divorces there ; since marriages were there cele- 
 brated under national law ; and it is competent for Congress to 
 authorize divorces in the Territories, though in practice this 
 subject, like others of local legislation, is usually left with- the 
 1 Barber v. Barber, 21 How. U. S. 582. 
 70 
 
CHAP. V.J OUE STATUTORY MATRIMONIAL LAW. § 89 
 
 territorial legislature. Chancellor Kent reminds us, that 
 Congress, " by an act of the 15th of May, 1826, c. 46, annulled 
 several acts passed by the governor and legislative council of 
 the Territory of Florida granting divorces ; " ^ and, in 1862, 
 a statute was by the national legislature passed (Stat. 1862, 
 c. 126) for punishing polygamy in any " Territory or other 
 place over which the United States have exclusive jurisdiction." 
 In like manner, the national statute of 1860, c. 179, § 31, 
 enacts, that " all marriages in the presence of any consular 
 officer in a foreign country, between persons who would be 
 authorized to marry if residing in the District of Columbia, 
 shall have the same force and effect, and shall be valid to all 
 intents and purposes, as if the said marriages had been sol- 
 emnized within the United States." There can be no doubt 
 that these several acts were authorized by the supreme law of 
 our Constitution.^ 
 
 § 89. Careless and Defective Iiegislation — DifScult of Inter- 
 pretation. — As already observed, it is not proposed to set out, 
 in extensb, the statutes of our several States, relating to mar- 
 riage, or relating to divorce. Should this be done, a very 
 great number of pages would be occupied with that from which 
 very little benefit would result to the reader. But it is observ- 
 able, that the statutory law of this country, upon this subject, 
 seems in general to have been drafted by men who either 
 did not possess much knowledge of the unwritten law respect- 
 ing it, or did not regard such unwritten law as worthy to be 
 considered in framing the statutes ; and who, moreover, gave 
 but little thought to what would be the practical workings of 
 the statutes. The interpretation of these enactments, there- 
 fore, becomes difficult ; and, though it is not generally well 
 for an author to proceed with his elucidations much in advance 
 of adjudication, yet it is believed that something may profitably 
 be said in this connection upon points concerning which the 
 courts have not spoken, or have spoken indistinctly, as well as 
 upon those which are better settled. We shall in no case 
 walk without our guides ; for the courts, in dealing with other 
 questions, have already established such general rules of inter- 
 pretation as will serve us in these particular instances. 
 1 2 Kent Com. 105, note. 2 See post, § 398. 
 
 71 
 
§ 90 a SOURCES OP authority. [book II. 
 
 § 90. Some Leading Principles of Interpretation. — Now, in 
 consequence of this particular condition of tlie statutory law 
 on tliis subject, it becomes often necessary to resort to the very 
 liberal and comprehensive rules of interpretation which the 
 wisdom of the past has established for cases in which it is 
 plain that what is meant is not exactly or fully what is in 
 form said. One of these rules of interpretation, or rather a 
 summary of many rules, is, " that all provisions of law, stat- 
 utory and common, at whatever several dates established, are 
 to be construed together, as contracting, expanding, enlarging, 
 and attenuating one another, into one harmonious system of 
 jurisprudence ; " ^ and, in pursuance of this doctrine, statutory 
 provisions are, by construction, both expanded in their mean- 
 ing, and cut short in their mteaning, by the common law.^ 
 Another proposition is, that " words and expressions inaccu- 
 rately used will receive the meaning intended, where it appears 
 on the whole face of the act;" ^ and, since the statutes are to be 
 construed in reference to the common law, as well as in refer- 
 ence to one another, the rule here being, that " statutes in 
 derogation of the common law, or of a previous express enact- 
 ment, are to be construed strictly, not operating beyond their 
 words, or," to effect a repeal of the prior law, " the clear 
 repugnance of their provisions"* to such prior law, — plainly, 
 if there is a statutory provision expressed in such awkward or 
 unscientific language as to require it to be bent out of its 
 literal meaning in order to carry out what was evidently the 
 legislative intent, as appears from a comparison of part with 
 part, or a comparison of the whole with the common law, the 
 court, in construing the provision, will — since the court must, 
 or fail to do the first duty involved in statutory interpretation, 
 namely, follow " the meaning of the legislature"^ — so bend 
 the enactment as to accomplish this object. Let us look, then, 
 at some of the provisions of those inconsiderately drawn stat- 
 utes to which reference has already been made. 
 § '^0 a. The Matrimonial Consent : — 
 How, in General. — We shall have frequent occasion to con- 
 
 1 Bishop Stat. Crimes, § 123. * lb. § 155. 
 
 2 lb. § 118-121, 134-140. s Bishop Stat. Crimes, § 70, 82. 
 
 3 lb. § 81. 
 
 72 
 
CHAP, v.] OUR STATUTOEY MATRIMONIAL LAW. § 90 J 
 
 sider, in these volumes, the fundamental doctrine of matri- 
 monial law, that there can be no marriage except between 
 parties who voluntarily 'agree to be husband and wife. The 
 law, in some of our States, requires formalities to be added to 
 this mere mutual consent ; but the consent itself is not dis- 
 pensed with, and without it there can be no marriage.^ When 
 this consent and any formalities required by law combine, 
 then, as a consequence, not only the parties assume the status 
 of married persons, but third persons are, or may be, affected 
 in their property interests. Now, if a man and woman, capa- 
 ble of intermarrying, should be brought together by brute 
 force, and an official person should say a marriage ceremony 
 over them, they not consenting, this profanation of the marriage 
 rite would not make them husband and wife. And if the legis- 
 lature should step in and declare them to be, therefore, married, 
 the act would be a high outrage, in the name of legislation ; 
 but there would be, at least, doubt, whether it would be bind- 
 ing under the constitutions of our States. 
 
 § 90S. Insanity — Virginia Statute. — If a person is insane, 
 he can consent to nothing. Therefore, within the doctrine just 
 stated, it does not constitute marriage for an official person to 
 pronounce the marriage ceremony over a man and woman 
 one of whom is insane.^ It would not change the status of 
 the parties ; and, a fortiori, it could not take any rights of prop- 
 erty from third persons, who did not even in form consent to 
 what was done. But if we turn to the statutes of Virginia, 
 we shall find the following : " 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 process. All marriages 
 which are prohibited by law on account of consanguinity or 
 affinity between the parties, all marriages solemnized when 
 either of the parties was insane, or incapable from physical 
 causes of entering into the marriage state, shall, if solemnized 
 within this State, be void from the time they shall be so declared 
 
 1 Post, § 121, 124, 125, 156, 216, 218, 2 gee, for the doctrine discussed, 
 219 &c. ' post, the chapter commencing with 
 
 §124. 
 
 73 
 
§ 91 SOURCES OP AUTHORITY. [bOOK II. 
 
 hy a decree of divorce or nullity, or from the time of the con- 
 viction of the parties under the third section of the one hun- 
 dred and ninety-sixth chapter." ^ 
 
 § 90 c. Virginia Statute, continued. — Now, the meaning 
 apparent on the face of this provision is, that, if a ceremony of 
 marriage is gone through with while one of the parties is 
 insane, the marriage is for the time being absolutely good. It 
 transfers the woman's property to the man, abates any suit 
 which may be pending against her, takes from one who has 
 sued the man the right to use her testimony in evidence, and 
 so on. True, there may be a divorce ; but, even then, the 
 marriage will not be made void from the beginning, but only 
 from the date of the decree, after the above-mentioned conse- 
 quences have been irrevocably wrought. Does the statute really 
 mean all this ? Could any body of men be so demented as 
 intentionally to pass such an act ? And, if this is the mean- 
 ing, is the act constitutional ? The author confesses himself 
 incapable of answering these questions. All he can safely say 
 is, that young ladies of fortune in Virginia should beware 
 how they become insane. 
 
 § 91. Massachusetts statute. — In the Massachusetts statutes, 
 we find the following language : " 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." ^ 
 Now, the first of these two sections seems to be a very plain, 
 as well as, perhaps, a reasonable provision. By the common 
 law of marriage, the impediment of consanguinity or affinity 
 renders the marriage, not void, but voidable, — a matter to 
 be explained in our next chapter. Here the rule is, by the 
 statute, changed. But the other two impediments, namely, 
 the existence of a previous marriage, by force of which one 
 1 Va. Code of 1860, p. 529, § 1. 2 Mass. Gen. Stats, c. 107, § 1 & 2. 
 
 74 
 
CHAP, v.] OUR STATUTORY MATRIMONIAL LAW. § 93 
 
 of the parties is already a married person, and the want in 
 one or both of them of mental capacity adequate to entering 
 into the contract of marriage, render, by tlie common law, 
 the marriage void. Therefore, as to these two latter impedi- 
 ments, the statute — namely, the first section — appears to be 
 declaratory of the common law. 
 
 § 92. Continued. — But when we look at the second section, 
 we find a provision relating to the impediment of the want of 
 mental capacity, rendering the marriage, not " void," as the 
 first section declares it to be, but voidable. And when the 
 reader comes to peruse our next chapter, he will see that 
 the language of this second section is just as precise and 
 accurate to declare the marriage voidable, though it does not 
 use the word, as is that of the first to declare it " void," though 
 it does use the word. Do these sections, then, taken together, 
 and taken in connection also with all the other statutes of 
 Massachusetts, and with the unwritten law as imported into 
 this country from England, operate to make the marriage, 
 where the impediment of an unsound mind exists, void or 
 voidable, or something else which is not aptly signified by 
 either of these words ? 
 
 § 92 a. Continued — Vermont. — In a Vermont case,^ to be 
 more particularly considered in a chapter further on,^ the 
 broad doctrine was laid down under a statute somewhat analo- 
 gous, that the marriage is voidable, and not void. But this 
 case would not be received in the other States generally as of 
 much weight ; because, though the court is a highly respectable 
 one, it did not have before it either the authorities or the 
 reasoning which would conduct to the contrary conclusion ; 
 and the judges even laid it down that such is the doctrine of the 
 common law, without being apparently aware that there is 
 any differing doctrine contained in the books. 
 
 § 93. A more General Provision. — We find in several of the 
 American States another similar statutory provision, which, 
 without attempting an accurate history of it, we may mention 
 as having apparently originated in New York.^ In Wisconsin, 
 
 1 Wiser v. Lockwood, 42 Vt. 720. 3 2 Kent Com. 77. 
 
 2 " Want of Mental Capacity," 
 commencing post, § 124. 
 
 75 
 
§ 94 SOURCES OF AUTHORITY. [BOOK II. 
 
 it is, or was, 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 the 
 parties, the marriage shall be void/rowi the time its nullity shall 
 he declared by a court of competent authority." ^ We have no 
 judicial expositions of this strange enactment, — certainly as 
 strange and blind as the one just quoted from Massachusetts, 
 and quite analogous to the one from Virginia. Does it make 
 people married without their consent ? If a ruffian robs a 
 woman of her jewelry, he gains thereby no title to it ; but, if 
 he holds her by the throat while words of marriage are said 
 over her, does he then become legally invested with all her 
 personal property ? Must she be regarded as his wife, till she 
 brings him into court and proves her want of consent ? And 
 even then does she take his name, and does she recover back 
 her property only if the court reinvests the title in her ? And 
 if she dies before sentence dissolving the marriage (the sen- 
 tence not being one of nullity), does her personal estate remain 
 vested in him, to the exclusion of those who would otherwise 
 be her legal representatives, and is he entitled to take out 
 administration ? Perhaps this ■ statute may be construed as 
 merely a re-enactment of the common-law doctrine, that judi- 
 cial sentences of nullity of marriage are conclusive upon 
 strangers as well as parties and privies. 
 
 § 94. Continued. — But evidently this provision of statutory 
 law was written, enacted, and re-enacted, without any accurate 
 apprehension, in the minds of those concerned, of the subject 
 to which it relates. Such a thing is not surprising, when we 
 consider the small amount of legal culture which the subject 
 of marriage and divorce had formerly received, either in the 
 United States or in England, out of the ranks of the practi- 
 tioners and judges of the ecclesiastical courts, where all direct 
 jurisdiction over the subject resided. Even Professor Green- 
 leaf, one of our most accomplished law writers, has fallen into 
 the inaccuracy of apparently laying down the rule, that, when- 
 ever a marriage is sought to be " invalidated on the ground of 
 
 1 Wisconsin, B. S. c. 79, § 2. 
 
 76 
 
CHAP, v.] OUR STATUTORY MATRIMONIAL LAW. § 95 
 
 want of consent, the subject must have been investigated and 
 the fact establislied in a suit instituted for the purpose of 
 annulhng the marriage," or it will be held good.^ This propo- 
 sition is plainly unsupported by reason or authority, and 
 especially unsustained by the authorities he cites. We have 
 already seen, that consent is the essence of marriage, without 
 which it cannot exist. A government which should compel 
 people into matrimony without their consent, could not be 
 endured. And though it should grant the right to obtain a 
 divorce on a judicial proceeding instituted for the purpose, 
 that would be but a partial and inadequate recompense for 
 such a wrong.^ But this particular matter, as one pertaining 
 to the unwritten law, we shall have occasion to examine in 
 another place, where we shall also discover, that even of late 
 the minds of some judges have been draped in mist upon this 
 subject.* 
 
 § 95. Further as to Foregoing Statutes. — When we turn to 
 examine tlie common law of marriage, in aid of our inquiry 
 how a statute such as the Wisconsin and Massachusetts ones 
 is to be construed, we find, as already mentioned,* and as we 
 shall see still further in subsequent pages, that never under 
 the common law is marriage as a status imposed on parties 
 who do not consent to accept the status. This principle runs 
 through the entire extent of that unwritten law which our 
 forefathers brought hither from the mother country. It radi- 
 ates, too, through all the domains of our reason. It is a prin- 
 ciple to which the world long ago assented, and which no man 
 yet has appeared, either in this country or any other, with 
 enough of folly to deny. And if a modern legislature really 
 meant to overturn this principle, the intent would be announced, 
 not only in competent words, but in words standing in such a 
 connection as to admonish us that here, in this place, reason 
 was deliberately buried and folly was galvanized into life. 
 Therefore neither the Massachusetts nor the Wisconsin statute 
 should be construed to mean what its words signify. But in 
 
 1 2 Greenl. Ev. § 464, note. & P. 12; Wells v. Fisher, 1 Moody & 
 
 2 And see 1 Hawk. P. C. 6th ed. p. R. 99. 
 
 172, § 9, note ; Wells v. Fletcher, 5 Car. 3 See. post, § 105, 125, 136. 
 
 4 Ante, § 3, 12, 19. 
 
 77 
 
95 
 
 SOURCES OP AUTHORITY. 
 
 [book II. 
 
 Massachusetts, as, during the life of the insane parties, a pro- 
 ceeding may be instituted to set aside the marriage by reason 
 of tlie insanity, the second section above quoted should be 
 holden to require such a proceeding to be instituted, whenever 
 a man would undertake, during their lifetime, to deny the 
 marriage. On the other hand, as no such direct proceeding 
 can be had after the death of one of them, such death should 
 be holden to entitle any person interested to deny the consent, 
 — in other words, to deny the marriage, — when the question 
 comes up collaterally. And, as observed by a Massachusetts 
 judge before the statute 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 families, should be the victims of the artifice of desperate 
 persons, who might be willing to speculate on their misfor- 
 tunes." 1 And the like interpretation should be applied to the 
 
 1 Parker, C. J., in Middleborough v. 
 Eochester, 12 Mass. 363, 365. There 
 is a single Massachusetts case in which 
 this statute passed under the review of 
 the court. After the death of a party 
 to a supposed marriage, the question 
 of marriage or no marriage came up 
 collaterally on the trial of a pauper 
 cause, and one of the parties to the suit 
 offered to prove the party to the mar- 
 riage to have been insane at the time 
 of its solemnization, hut the judge re- 
 fused to admit the proof, and the whole 
 court sustained this ruling. The mar- 
 riage had been celebrated previous to 
 the enactment of the statute, and the 
 point talcen by the counsel objecting 
 was, that either the statute was not 
 meant to be applied to a pre-existing 
 marriage, or, if it was, it was for this 
 cause unconstitutional. Goshen u. 
 Richmond, 4 Allen, 458. I have no 
 hesitation in concurring in ' the opinion 
 which overruled this particular twofold 
 objection. But the point made in our 
 text still remains, as one, if not of con- 
 stitutional law, still as one of statutory 
 interpretation. Let us put the bald 
 case of a man procuring the marriage 
 ceremony to be performed between 
 himself and a rich woman, confessedly 
 
 78 
 
 an idiot, with whom he never cohabits 
 for a day ; she dies, the fact of this mock- 
 ery of marriage being unknown to her 
 friends, without any measures taken in 
 her lifetime to set it a,side ; or, the fact 
 ■being known to them, and measures 
 being taken, she dies before the cause 
 (reaches a final judgment; and he 
 comes in and claims all her property, 
 as her husband, by virtue of his marital 
 rights, — does this statute so operate as 
 to give him the property t Said Met- 
 calf, J., in the case just cited, " The 
 purpose of the statute was to alter the 
 law of evidence on a single subject, 
 by making inadmissible certain proofs 
 which were before admissible." But it 
 is not easy to conceal so great a fact as 
 this under a name. The statute does 
 not say any thing about rules of evi- 
 dence ; and, whether we use one term 
 or another, if, in the case just supposed, 
 
 — a case, let it be understood, 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 legis- 
 lature imposed the status of marriage 
 on an idiot who could not consent, and 
 who did not consent ; and has conferred 
 riches on a villain, in reward for the 
 
CHAP, v.] OUR STATUTORY MATRIMONIAL LAW. § 95 OS 
 
 Wisconsin statute, so far, at least, as to protect parties from 
 either a direct or a collateral judgment, making them married, 
 when they have not consented to marry, and to protect third 
 persons from being affected in their interests by any such 
 judgment.^ 
 
 § 95 a. Other Principles of the Unwritten Law combining 
 with the Statutes : — 
 
 Condonation. — In further illustration of the doctrine that 
 marriage and divorce statutes must, like all others, be construed 
 in combination with the unwritten law, and in accord with it, 
 we may refer to Stat. 20 & 21 Vict. c. 85, § 30, already copied 
 into a note.^ This provision makes it a bar to the suit if the 
 plaintiff " has condoned the adultery complained of." There- 
 upon a case arose in which the defendant proved condonation, 
 thereby bringing himself fully within the terms of the stat- 
 ute ; but it appeared also, that the defendant had afterward 
 been guilty of such conduct as, according to the practice which 
 before prevailed in the ecclesiastical court, would have revived 
 the adultery thus condoned. Was it, therefore, revived under 
 the statute? The court held that it was. "Condonation," 
 said the lea'rned judge, " is strictly a technical word. It had 
 its origin, and as far as I know its entire use, in the ecclesi- 
 astical courts, and it means ' forgiveness with a condition.' 
 The statute says, that, if the petitioner has condoned, that is, 
 has conditionally forgiven, the adultery complained of, the peti- 
 tion shall be dismissed. ... I think the statute means, not that 
 the petitioner shall be barred of her remedy if she has ever 
 
 practice, by the most base and debasing cast the whole burden on the first sec- 
 means, of his art. Is it the true legal tion, bending its words from their legiti- 
 construction which presumes that the mate meaning, in order to let the words 
 legislature intended this ? The con- of the second section stand upright^ 
 struction apparently given by the court where the effect is to reach a. result 
 to this second section proceeds necessa- which, if the legislature was composed 
 rily on the assumption, that the language of sane men, it could not possibly have 
 used in the first section does not convey intended t 
 
 the true legislative intent; this Ian- ' See Brown v. Westbrook, 27 Ga. 
 
 guage is bent out of its plain and obvi- 102, referred to also in a note to the 
 
 ous meaning in order to give meaning next section, yet this case sheds but 
 
 to the second section : — Why, then, little useful light, 
 since we find the legislature here em- ^ Ante, § 65, note, par. 2. 
 ploying words inaccurately, should we 
 
 79 
 
§ 96 SOURCES OF AUTHORITY. [BOOK II. 
 
 condoned, but that she shall be barred of her remedy if the 
 condonation is still existing." ^ 
 
 § 96. Breaking the Bond, or declaring that it never existed. — 
 The statutes of Massachusetts ^ provide, that " a divorce frona 
 the bond of matrimony may be decreed for adultery or impo- 
 tency of either party." ^ Now, according to our common law 
 on this subject, as we shall see particularly in the appropriate 
 chapter, impotency, to be a ground of divorce, must exist at 
 the time of the marriage, as an impediment which renders the 
 marriage voidable, but not void.^ Adultery, on the other hand, 
 if it exists as a fact which transpired anterior to the marriage, 
 is no cause for divorce ; it must assume the form of an oifence 
 committed against the marriage after its celebration ; and then 
 the sentence for divorce for this cause annuls the marriage 
 from the time when the sentence is pronounced, while the 
 sentence of divorce for impotency pronounces it to have been 
 originally void, and never of any legal effect. Adopting, 
 therefore, the rule of construing statutes to harmonize with 
 the common law,* we shall have no difficulty in coming to the 
 conclusion, that, in Massachusetts, notwithstanding the stat- 
 utory provision just quoted, impotency and a'dultery are 
 dissimilar in their nature and consequences, — the former 
 rendering the marriage voidable, therefore liable to be ad- 
 judged to have been void from the beginning, while, until 
 sentence rendered, it is legally good ; and the latter being 
 such a breach of matrimonial duty as to justify the courts 
 in dissolving the marriage, by judicial sentence pronouncing 
 it void only from the time of sentence rendered.^ This prin- 
 ciple of interpretation will also assist us to understand many 
 other statutes, which, did we not regard the common law, in 
 its relation to the subject, would be blind in their meaning. 
 Well has Lord Coke said : " To know what the common law 
 was, before the making of any statute, is the very lock and 
 key to set open the windows of the statute." ^ 
 
 1 Dent V. Dent, 4 Swab. & T. 105, views, Bascomb a. Bascomb, 5 Eost. 
 107, 108. N. H. 267. But see Brown v. West- 
 
 2 Gen. Stats, c. 107, § 6. brook, 27 Ga. 102. And see post, § 120, 
 
 3 Post, § 339. 137. 
 
 * Ante, § 90, 95 a. 6 2 Inst. 308. 
 
 * See, as perhaps illustrating these 
 
 80 
 
CHAP, v.] OUR STATUTORY MATRIMONIAL LAW. § 97 
 
 § 97. Issue of Marriage Void for Consanguinity or Affinity. — 
 We have seen, that, by § 1 of a Massachusetts statute already 
 quoted ,1 a marriage prohibited on account of consanguinity 
 or affinity between the parties is declared to be " void without 
 any decree of divorce or other legal process." Now, § 28 of 
 the same statute provides, that " the issue of a marriage dis- 
 solved by a divorce or sentence of nullity on account of con- 
 sanguinity or affinity between the parties shall be deemed to 
 be illegitimate." Does it result from tliis section, that, when 
 there has been no decree of divorce or nullity, the issue will 
 be legitimate, in accordance with the rule which would pre- 
 vail had not the common law, whereby such a marriage is 
 merely voidable, been superseded by the statute which de- 
 clares it void ? One would suppose this to have been the 
 meaning of the draftsmen of the statute ; for, though the 
 principle of the common law that where there has been a 
 marriage pronounced void by a sentence of nullity the children 
 are bastards, is so very plain as to make any such re-enact- 
 ment of it as we have here in a book of statutes almost 
 ridiculous, we shall search in vain for any known rule of 
 interpretation from which the result thus indicated can be 
 derived. There is indeed the maxim, Uxpressio unius est 
 exclusio alterius ; ^ but this maxim has its principal applica- 
 tion to cases where the legislature establishes something new 
 in the law, and it does not ordinarily apply to statutes intro- 
 duced merely to modify the common law, or to give to the 
 courts a jurisdiction over a matter of common-law cogni- 
 zance. Pei'haps a very doubtful principle held in Massa- 
 chusetts and a few of the other States, to an extent and in 
 circumstances not easily ascertained, to the effect, that, as 
 stated elsewhere by the author, " where a new statute covers 
 the whole ground occupied by a previous one, or by the com- 
 mon law, it repeals by implication the prior law, though there 
 is no repugnance," ^ may be forced into the service of the 
 construction which renders the issue legitimate, in the absence 
 of any decree of nullity ;' but the difficulty is, that here is no 
 extended legislation covering the whole subject of legitimacy^ 
 
 1 Ante, § 91. ^ ib. § 159. 
 
 2 Bishop Stat. Crimes, § 249. 
 
 VOL. I. 6 81 
 
§ 99 SOURCES OP AUTHORITY. [BOOK II. 
 
 and the rule of the common law is very distinct, whereby the 
 issue of all void marriages, even in the absence of a sentence 
 of nullity, is held to be illegitimate. On the whole, therefore, 
 we must deem this common-law rule still to pi'evail to its full 
 extent, though the statute affirms it only in part. And in 
 reason, as the law holds the parents not to be in wedlock, how 
 can we deem the children thus born out of wedlock to be 
 entitled to the same rights as if born in, unless the statute; 
 by some direct words, not by a mere omission of words, 
 makes them so ? 
 
 § 98. Whether Divorce Statutes apply to Past Transac- 
 tions : — 
 
 Question stated. — When we turn from the consideration 
 of these particular provisions to some general principles regu- 
 lating the interpretation of divorce statutes, and regulating 
 their validity, we are met by the query, whether, if a statute 
 authorizing divorces for some new cause is silent upon the 
 point of its applicability to matrimonial offences already com- 
 mitted, it is to be applied, or not, to past transactions ? Then, 
 suppose, instead of being silent on this point, it expressly, in 
 its language, extends to past transactions, — is it herein void 
 as violating the written constitution of the State ? 
 
 § 99. How in G-eneral — Illustrations — Desertion — Cruelty 
 — Conviction for Felony. — In the first place, waiving the con- 
 stitutional question, other statutes are not generally construed 
 to be retrospective, but some are.^ And when we come to 
 divorce statutes, the doctrine which at the first impression 
 appears to be, on the whole, best sustained by authority, is, 
 that no statute will be construed to include past offences, 
 unless there is , something upon its face distinctly indicating 
 this intention.^ Thus, an act which provided, " that divorces 
 from the bond of matrimony shall be decreed in case either of 
 the parties shall wilfully desert the other " for a period speci- 
 fied, was held to apply only where the entire desertion occurred 
 
 1 Bishop Stat. Crimes, § 82, 84, 85. Ward, 1 J. J. Mar. 280 ; Briggs v. Hub- 
 
 2 Jarvis «. Jarvis, 3 Edw. Ch. 462 ; bard, 19 Vt. 86 ; Miller v. Common- 
 Sherburne v. Sherburne, 6 Greenl. 210 ; wealth, 5 Watts & S. 488 ; Fultz v. Fox, 
 Given v. Marr, 27 Maine, 212 ; Scott v. 9 B. Monr. 499. 
 
 Scott, 6 Ohio, 534. See also Head u. 
 
 82 
 
CHAP, v.] OUR STATUTORY MATRIMONIAL LAW. § 100 
 
 subsequently to its becoming a law.^ And in Georgia, where 
 the statute provided, that " from and after the passage of this 
 act the following shall be the grounds or legal principles upon 
 which divorces from the bond of matrimony shall be granted," 
 and then proceeded to make cruel treatment one of the grounds, 
 the court held, that, to bring a case within the statute, the 
 cruel treatment should have been inflicted subsequently to its 
 enactment.^ And in Iowa, a like doctrine as to desertion 
 seems to have been rather assumed than held, the point de- 
 cided being, that, where the statutory period has fully run 
 since the enactment of the statute, this is sufficient to author- 
 ize the divorce, though the desertion commenced before the 
 statute was passed. 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 suflicient, and the case comes within the act. In such a 
 case, it is the future and not the past act which becomes the 
 offence."^ In New Hampshire, a provision, " that 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," was construed not to 
 authorize a divorce where the conviction and imprisonment 
 took place before its enactment.* 
 
 §100. Continued — Desertion — Adultery — Living Separate. 
 — On the other hand, where, in Massachusetts, desertion was 
 first made, by Stat. 1838, a ground for divorce from the bond 
 of matrimony, the uniform practice was to grant the divorce, 
 though the desertion had taken place before the statute was 
 enacted. True, desertion was, previously to this time, a 
 ground for divorce from bed and board, but this fact probably 
 had nothing to do with the decisions. The words of the stat- 
 ute were : " 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 con- 
 
 1 Stat, of Maine, 1829, c. 440 ; Sher- ' McCraney t. McCraney, 5 Iowa, 
 burne v. Sherburne, 6 Greenl. 210. 232, 255. 
 
 2 Stat, of 1850 ; Buckholts v. Buck- * Greenlaw v. Greenlaw, 12 N. H. 
 holts, 24 Ga. 238. See ante, § 76. 200. 
 
 83 
 
§ 101 SOURCES OF AUTHORITY. [BOOK 11. 
 
 secutively, and without the consent of the party deserted." ^ 
 And a statute of the same State having declared, " that, when 
 any woman shall hereafter be divorced from the bond of mat- 
 rimony, 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," 
 this was held applicable as well where the adultery was com- 
 mitted before, as after its passage.^ So where, in Wisconsin, 
 a statute authorized a divorce " whenever the husband and 
 wife shall have voluntarily lived entirely separate for the 
 space of five years next preceding" the commencement of 
 the suit, it was held applicable to cases where the five years 
 had partly elapsed before the passage of the act. " This law," 
 observed Cole, J. " establishes a new ground of divorce, and 
 is based upon the principle that, where husband and wife 
 have voluntarily lived entirely separate for a period of five 
 years, the interest of society and public morality, as well as 
 the good of the parties themselves, 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 occurred after the law 
 took effect, and we must presume that it was intended to 
 apply to present separations as well as future ones." ^ 
 
 § 101. Foregoing Boctrines examined — Judgments in Crim- 
 inal Cases — Minors made of Age by Marriage. — If we carefully 
 examine the language of those statutes which were held not 
 to apply to pre-existing transactions, we shall notice, that, in 
 most of. them, this conclusion appears perhaps sufficiently 
 plain as matter of legislative intent, lying within the very 
 words employed. Thus, when " either of the parties shall 
 wilfully desert" " shall he convicted of felony," and the like, — 
 these words point to future transactions. Still, it is true, that 
 ordinary statutes relating to other subjects are not generally 
 to be construed as applying to transactions already passed.* 
 
 1 Mass. Stat. 1838, c. 126, § 1 ; 3 Cole v. Cole, 27 Wis. 531, 534. 
 Stevens v. Stevens, 1 Met. 279. « Bishop Stat. Crimes, § 82. 
 
 2 West V. West, 2 Mass. 223. 
 
 84 
 
CHAP, v.] OUR STATUTORY MATRIMONIAL LAW. § 102 
 
 Yet this is very far from being a universal rule. Thus, where 
 it was provided, that, "whenever a final judgment in any 
 crimiual case shall be reversed by the Supreme Judicial Court 
 upon a writ of error on account of error in the sentence, the 
 court may render such judgment therein as should have been 
 rendered, or may remand the case for that purpose to the 
 court before which the conviction was had," — the court 
 construed the enactment to apply to judgments pronounced 
 before it was- passed ; and held, that such application was no 
 violation either of any constitutional provision, or of any 
 natural right.^ It is not necessary that we should enter 
 into a full consideration of this question ; but there is one 
 class of cases, not in the strict sense matrimonial, worthy of 
 particular notice here. Thus, where it was provided " 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 pertaining, not to the status of matrimony, 
 but to the status represented by the word majority, — " 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," — this statute was held to apply to female minors 
 married before its passage.^ It was expressive, like statutes 
 relating to divorce and marriage, of the legislative judgment 
 concerning parties standing in the situation pointed to by 
 the statute ; and, whether the situation was created before the 
 statute, or the statute before the situation, this could not be 
 material.^ 
 
 § 102. Continued. — Now, an act regulating divorces would 
 seem to be expressive of the legislative will as to what status, 
 in respect of marriage, it is fit for persons to bear after the 
 facts specified in the act have transpired ; therefore the same 
 reasons which would make the statutory direction applicable 
 
 1 Mass. Stat. 1851, c. 87 ; Jacquins trine, Andrews v. Eussell, 7 Blackf. 
 V. Commonwealth, 9 Cush. 279. Yet 474 ; Miller v. Moore, 1 C. P. Smith, N. 
 see Watkins v. Haight, 18 Johns. 138. Y. 739 ; Bronson v. Newherry, 2 Doug. 
 
 2 Chubb V. Johnson, 11 Texas, Mich. 38; Goshen v. Richmond, 4 
 469. Allen, 458, obseryed upon, ante, § 95, 
 
 3 See also, as illustrating this doc- note. 
 
 85 
 
§ 104 SOURCES OP AUTHORITY. [BOOK II. 
 
 to future transactions would seem to render it equally so to 
 past. The law, indeed, may be presumed to have been framed 
 as much with reference to present facts as to future ones. In 
 questions of mere private right, a different reasoning applies ; 
 for it would be inequitable to adjust the claims of individuals 
 by a rule which did not exist when the facts occurred, con- 
 sequently the legislature should not ordinarily be presumed 
 so to intend. But the primary object of divorce laws is to 
 regulate the order of society, and purify the • fountains of 
 morality ; though the suit itself is, as between the parties, a 
 private controversy.^ Views such as these should lead us, in 
 all cases where the legislative intent is not plain in the words, 
 to prefer the construction which makes the statute applicable 
 to past, the same as to future offences. 
 
 § 103. Continued — Ne^w Jurisdiction over Old Cause. — But 
 if the statute were, instead of being an original provision 
 authorizing a divorce for something which was not a ground 
 of divorce under the unwritten law, an authority simply to 
 'some tribunal to take judicial cognizance of causes which were 
 recognized as such by the law which our forefathers imported 
 to this country, — as, for example, if it merely gave to a court 
 the power to sunder the bond of matrimony in cases of impo- 
 tence, — then, of course, and for still other reasons, the statute 
 should be construed to apply to past facts, as well as to future 
 ones. This is a principle so plain as not to require any elu- 
 cidation. It is founded on the everywhere received distinction 
 between the right and the remedy ; between the cause of action 
 and the jurisdiction to hear the complaint. Even if the divorce 
 were a criminal proceeding, this reasoning would apply .^ 
 
 § 104. Constitutional Question — Conclusion. — The remain- 
 ing question is, whether it is not a violation of written pro- 
 visions found in most of our State constitutions, to apply a 
 divorce law, which provides a new cause of divorce, to an old 
 transaction. The answer to this question is, in general tenus, 
 that it is not.^ But a discussion of this question leads us into 
 a consideration of the same principles which will necessarily 
 
 1 Elwell V. Elwell, 32 Maine, 337. 3 Carson v. Carson, 40 Missis. 349. 
 
 2 Bishop Stat. Crimes, § 175-180. 
 
 86 
 
CHAP, v.] OUR STATUTORY MATRIMONIAL LAW. § 104 
 
 pass under our review in examining legislative divorces ; so it 
 will be postponed for the chapter which relates to such divorces.^ 
 And there are many other questions of statutory interpretation 
 to be discussed in these volumes, best postponed till they arise 
 in their natural order. 
 
 1 Post, § 696 et seq. 
 
 87 
 
105 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 BOOK III. 
 
 IMPERFECTIONS IN THE CONSTITUTION OF THE 
 MARRIAGE. 
 
 CHAPTER VI. 
 
 THE DISTINCTION OP VOID AND VOIDABLE. 
 
 104 a, 104 6. Introduction. 
 
 105-111. Nature and History of the Distinction. 
 
 112-115. What Marriages are Voidable, what Void. 
 
 116-118. Etfect of a Voidable Marriage, and of its Dissolution. 
 
 119, 120. English and American Statutes. 
 
 § 104 a. Purpose of this Chapter. — The distinction of void 
 and voidable in marriage is one of a peculiar nature ; since, 
 though a distinction bearing the same name is known in other 
 things in the law, it is not precisely like the distinction in the 
 matrimonial law. If, therefore, before we enter upon a con- 
 sideration of the several specific impediments to marriage, we 
 take a somewhat minute view of this distinction, we shall find 
 our way through the discussions which are to follow made 
 more easy. 
 
 § 104 b. How the Chapter divided. — We shall consider, I. The 
 Nature and History of the Distinction ; II. What Particular 
 Marriages are Voidable, and what Void ; III. Effect of a 
 Voidable Marriage, and of its Dissolution ; IV. Something of 
 English and American Statutes relating to this Subject. 
 
 I. The Nature and History of the Distinction. 
 
 § 105. Definitions — VSThat Marriages in General Voidable, and 
 what Void. — A marriage is said to be void, when it is good 
 for no legal purpose, and its invalidity may be maintained in 
 88 
 
CHAP. TI.] VOID AND VOIDABLE. § 106 
 
 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.^ 
 A marriage is said to be voidable, when the imperfection can 
 be inquired into only on a proceeding conducted for the pur- 
 pose of setting it aside, during the lifetime of both the husband 
 and wife.2 Until set aside, it is practically valid ; when set 
 aside, it is rendered void from the beginning.^ In the absence 
 of modern statutes which have more or less modified the origi- 
 nal doctrines of the unwritten law, the canonical impediments 
 to marriage, such as consanguinity, affinity, and impotence, 
 render it merely voidable ; the civil impediments, such as a 
 prior marriage, idiocy, and the like, usually render it void.* 
 
 § 106. Importance of Historical View — Ecclesiastical Courts 
 — Prohibition — Distinction bet'ween Canonical and Civil Impedi- 
 ments. — In the discussion of the subject of this chapter, we 
 shall find it necessary to look a little at the history of the dis- 
 tinction we are considering ; because, as already observed, 
 though the division of things into void and 'voidable extends 
 into other departments of our jurisprudence, it is not any- 
 where else governed by the same rules as here, and the reason 
 of the rules here governing can be fully seen only in the light 
 of their history. When, in ancient times, the ecclesiastical 
 courts of England decided causes upon laws derived from the 
 See of Eome and the councils of the church,^ the common-law 
 judges were presumed to have no knowledge of those peculiar 
 laws ; and so, if 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 
 
 1 Shelford Mar. & Dir. 479, 480 ; ^ Shelford Mar. & Div. 483, 484 ; 1 
 
 Wilson V. Brockley, 1 Phillim. 132 ; Bl. Com. 434 ; Bonham „. Badgley, 2 
 
 Ferlat ^. Gojon, Hopkins, 478, 493; GiU, 622. 
 
 Hantz V. Sealy, 6 Binn. 405 ; Gathings 3 lb. ; Perry v. Perry, 2 Paige, 501 ; 
 
 V. Williams, 5 Ired. 487 ; Hemming v. Aughtie v. Aughtie, 1 Phillim. 201. 
 
 Price, 12 Mod. 432; Pattersons. Gaines, * Shelford Mar. & Dir. 154; 1 Bl. 
 
 6 How. U. S. 550, 592 ; Fornshill v. Com. 434 ; Rogers Ec. Law, 630, tit. 
 
 Murray, 1 Bland, 479 ; Mount Holly v. Marriage ; Elliott v. Gurr, 2 Phillim. 16, 
 
 Andover, 11 Vt. 226 ; Rawdon v. Raw- 1 Eng. Ec. 166, 168 ; Rex v. Wroxton, 
 
 don, 28 Ala. 565 ; Middleborough v. 4 B. & Ad. 640 ; Jaques v. The Public 
 
 Rochester, 12 Mass. 363 ; Higgins v. Administrator, 1 Brad. 499. 
 
 Breen, 9 Misso. 493 ; Smart v. Whaley, 5 Ante, § 51. 
 6 Sm. & M. 308. 
 
 89 
 
§ 107 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 into the question.^ As a consequence of this proposition, a 
 prohibition would not lie, from the common law to the eccle- 
 siastical tribunals, to prevent the latter from dissolving a mar- 
 riage 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,^ the marriage was held 
 to be good, unless some civil impediment were shown. 
 
 § 107. Church enlarging the Impediments — Affinity by mere 
 Carnal Knowledge, &c. — But the law of the church became 
 gradually burdensome to the people. The impediments to 
 marriage were greatly extended ; and consanguinity and affin- 
 ity, even to the seventh degree of the canonical reckoning, 
 which might embrace the fourteenth degree of the civil law, 
 were at one time made obstructions to the nuptials ; though 
 marriages in the fourth canonical degree, contracted between 
 infidels who were afterward converted, were not dissolved.* 
 And an affinity, nearly equivalent to consanguinity, was also 
 created by sexual intercourse without marriage ; in conse- 
 quence of which a person guilty of fornication could not marry 
 one related to the particeps criminis within a certain part of 
 the prohibited degrees.^ These impediments seemed not the 
 
 ' The point of the text is pithily Hamilton v. Wyllies, 5 Scotch Sess. 
 
 illustrated in the following words, ex- Cas. new ed. 668. The English legis- 
 
 tracted from a letter of his Holiness the lation, as to this particular, varied irom 
 
 Pope, to the King of Sardinia, dated time to time during the reign of Henry 
 
 Sept. 19, 1852. " There would be," VIII., to suit the varying domestic 
 
 he says, " a veritable usurpation pver relations of this monarch, as follows : 
 
 the legitimate power, if the civil law Stat. 25 Hen. 8, c. 22, entitled " An Act 
 
 were to pretend to know and judge concerning the King's Succession," 
 
 cases in which the sacrament of mar- after directing within what degrees 
 
 riage has been, or has not been, regu- marriages shall be disallowed, has this 
 
 larly celebrated by the church." See clause : § 14, " Provided always, that 
 
 Pari. Hep. of Div. Com. pub. 1853, p. the article in this act contained con- 
 
 77. cerning prohibitions of marriages with- 
 
 2 Harrison u. Burwell, Vaugh. 206, in the degrees aforementioned in this 
 
 207, 213. act, shall always be taken, interpreted, 
 
 ^ The State v. Banfort, 2 Rich. 209 ; and expounded of such marriages, 
 
 Poynter Mar. & Div. 167. where marriages were solemnized and 
 
 * 4 Reeves Hist. Eng. Law, 58; carnal knowledge was had," — thus 
 
 Poynter Mar. & Div. 99 et seq. excluding, the reader perceives, the 
 
 5 Rees Cyc. art. Marriage; Mac- affinity created by mere sexual com- 
 
 queen Pari. Pract. 476, 477; Swinb. merce. But three years later, the legis- 
 
 Spousals, 238. In a modern Scotch lative and kingly judgment on this 
 
 case, this kind of affinity was denied, question was found to be in complete 
 
 90 
 
CHAP. VI.] 
 
 VOID AND VOIDABLE. 
 
 §108 
 
 less burdensome to the more conscientious class of the people ; 
 though, as an offset, they were often made the means of dis- 
 solving uncongenial marriages, indissoluble still by the gen- 
 eral ecclesiastical law. Persons within the prohibited degrees 
 might be permitted to marry, on cause shown, by special dis- 
 pensations, the granting of which is said to have brought 
 revenue to the church. ' 
 
 § 108. Stat. 32 Hen. 8. — In these circumstances came 
 Stat. 32 Hen. 8, c. 38, which lies at the foundation of the 
 distinction of void and voidable in marriage. It was soon 
 after its enactment repealed, so far as concerns precontract, 
 but in its other parts it still remains as the foundation of the 
 marriage law of England ; and there is no reason why it 
 should not be accepted by us, though perhaps not encumbered 
 with all the English interpretations, as entering into the com- 
 mon law of this country. After reciting^ in the preamble, 
 that theretofore " the usurped power of the bishop of Rome " 
 had made in marriage " that unlawful which by God's word 
 
 harmony with the ecclesiastical ; for 
 Stat. 28 Hen. 8, c. 7, entitled also " An 
 Act concerning the Succession to the 
 Crown," after directing, like the previ- 
 ous one, within what degrees 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 
 degree of consanguinity or affinity as 
 is above written to any of the parties 
 so carnally oflFending, shall be deemed 
 and adjudged to be within the cases 
 and limits of the said prohibitions of 
 marriage." This latter statute was 
 afterward, in part at least, repealed ; 
 but, as late as 1861, there was a case 
 decided by the Matrimonial Court in 
 England, wherein a man sought to 
 avoid his marriage, and to have a de- 
 cree of nullity pronounced, because, 
 before its celebration, he had carnally 
 known his wife's mother. Learned 
 counsel contended on his behalf, that 
 Stat. 28 Hen. 8, c. 7, was, as to the 
 part above quoted, and some other 
 parts, revived subsequently to the re- 
 peal, or, if it was not, that the doctrine 
 of the statute should be incorporated 
 
 by construction into 32 Hen. 8, i;. 38. 
 This argument was based on a very 
 respectable show of authority, but the 
 judge overruled it, and declined to pro- 
 nounce the marriage void. Cresswell, 
 the judge ordinary, stated the conclu- 
 sion of the court to be, " 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 pro- 
 hibited by God's law to mi^rry ; and 
 that no reservation or prohibition, 
 God's law except, shall trouble or im- 
 peach any marriage without the Levit- 
 ical degrees.' The prohibitions de- 
 scribed in the 18th chapter of Leviticus 
 seem to us to assume, that marriage is 
 necessary to create the degree of affinity 
 which makes a subsequent marriage 
 unlawful on the ground of affinity." 
 Wing V. Taylor, 2 Swab. & T. 278, 
 297. 
 
 1 4 Reeves Hist. Eng. Law, 59 ; 
 Ayl. Parer. 364. See also the pream- 
 ble to Stat. 32 Hen. 8, c. 38. 
 
 2 See post, § 112, note. 
 
 91 
 
§ 109 MAERIAGB IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 "is lawful," — that many married persons, after cohabitation 
 and the birth of children, had been divorced for precontract, 
 — that " by reason of othei" prohibitions than God's law ad- 
 mitteth, .... as in kindred or affinity between cousin-ger- 
 mans, 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 were 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 com- 
 passes to prove a precontract, a kindred, and alliance, or a 
 carnal knowledge, to defeat the same, and so under the pre- 
 tence of these allegations afore rehersed to live all the days of 
 their lives in detestable adultery," — it enacts, " That from 
 the first day of the month of July next coming, in the year of 
 our Lord fifteen hundred and forty, all and every such mar- 
 riages 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 taken to be law- 
 ful, good, just, and indissoluble, notwithstanding any precon- 
 tract or precontracts ^ of matrimony not consummate with 
 bodily knowledge, &c. And that no reservation or prohibition, 
 God's law except, shall trouble or impeach any marriage with- 
 out the Levitical degrees. And that no person, &c. shall, &c. 
 be admitted in any of the spiritual courts .... to any pro- 
 cess, plea, or allegation, contrary to this aforesaid act." ^ 
 
 § 109. Ecclesiastical and Temporal Jurisdictions. — l^ow the 
 temporal courts were always supposed able to understand, and 
 so they could always construe, any act of Parliament to what- 
 ever subject it might relate. We have seen ^ also, that they 
 
 1 " This statute was repealed as to cerning marriage, in respect to consan- 
 precontracts by the 2 & 3 Edw. 6, o. 23, guinity and affinity, passed both before 
 but in all. other respects confirmed." and after Stat. 32 Hen. 8, c. 88 ; but 
 Cresswell, J. in Wing v. Taylor, 2 they are neither important, nor mate- 
 Swab. & T. 278, 295. See post, § 113, rial to the point here presented. See 
 note. Shelford Mar. & Div. 163 et seq. 
 
 2 See 2 Inst. 684 ; Gibs. Cod. 411. 8 Ante, § 50. 
 There were some other statutes con- 
 
 92 
 
CHAP. VI.J VOID AND VOIDABLE. § HO 
 
 had authority to restrain by prohibition the spiritual tribunals,, 
 when the latter undertook to exercise a jurisdiction beyond 
 their proper limits. Therefore the result of the above statute 
 of Henry YIII. was, to authorize the temporal courts to in- 
 terfere by prohibition, whenever the spiritual attempted to 
 impeach a marriage without the Levitical degrees ; that is, one 
 not forbidden by " God's law." ^ But it gave them no new 
 power to interfere when the marriage was within those de- 
 grees ; for it was silent as to whether parties within those 
 degrees might marry or not.^ Consequently the temporal 
 courts did not, subsequently to this statute more than before,^ 
 undertake to say a marriage was void by reason of consanguin- 
 ity, 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.* But they did 
 restrain the spiritual tribunals, whenever, after the death of 
 one of the parties, they undertook to declare a marriage null 
 by reason of any canonical infirmity ; because, they said, it 
 would bastardize and disinherit the issue, who could not so 
 well defend themselves as the parties might have done ; yet 
 still they allowed the spiritual tribunals to proceed criminally 
 against the living offender, for the incest only.^ 
 
 § 110. Continued — The Result. — If the reader will here 
 pause, he will see that these two jurisdictions, the temporal 
 and the spiritual, proceeding as we have described after the 
 enactment of Stat. 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 procedure used in the ecclesiastical courts, 
 whenever, during the lifetime of both the parties, any inquiry 
 into the validity of a marriage arose there, the inquiry took at 
 once the character of a suit for nullity ; since this suit need 
 neither be instituted nor carried on by one of the parties to 
 
 1 Shelford Mar. & Div. 166; 1 there being no such statute as the 
 Woodd. Lect. 250; Harrison v. Bur- former. 
 
 well, Vaugh. 206. 3 Ante, § 106. 
 
 2 Butler V. Gastrin, Gilb. Ch. 156. * ?ost, § 117, 376. 
 
 The citation, in the report of this case, ^ Ray «. Sherwood, 1 Curt. Ec. 193, 
 of Stat. 38 Hen. 8, c. 13, is doubtless 199 ; 2 Inst. 614 ; Hinks v. Harris, 
 a misprint for Stat. 32 Hen. 8, c. 88, Garth. 271, 2 Salk. 548. 
 
 93 
 
§ 111 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 the marriage, it being equally maintainable by any person 
 having an interest in the question.^ Even in a criminal 
 prosecution before the ecclesiastical judge for incest, in which 
 the office of the judge could be promoted by any one, the 
 marriage would be declared null.^ When, on the other hand, 
 the question of the validity came before the lay tribunals, as 
 it might do collaterally but never directly, if an impediment of 
 the canonical kind were alleged against it, those tribunals 
 having theoretically no knowledge of the canonical law, and 
 having no jurisdiction to inquire into the impediment, could 
 not therefore regard the marriage void by reason , of the 
 impediment ; and so, the fact of marriage appearing, they held 
 it, for the purposes of the trial, to be 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 by prohibition ; while they permitted them to 
 proceed in the suit for nullity during the life of the parties. 
 That is, merging all considerations 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 life, or in any possible form after the death 
 of one of them, the marriage was held to be good ; and this 
 course of things coincides in effect with the definition we have 
 already given of a voidable marriage.^ If the temporal courts 
 had possessed the jurisdiction to decide upon the canonical 
 infirmities, those infirmities, like the civil, would have ren- 
 dered the marriage void. And hence the rule,^ that the 
 canonical impediments render the marriage voidable, and the 
 civil render it void. 
 
 § 111. Result, continued — How in Scotland — (Further 
 Views, in the Note). — This distinction of void and voidable, 
 unknown to the ancient common law of England,^ but estab- 
 lished thus as the mere result of the action of the two juris- 
 dictions, became soon crystallized into the law as a part, of 
 
 1 Eay V. Sherwood, 1 Curt. Ec. 173, 3 Ante, § 105. 
 193, 1 E. F. Moore, 353. * Ante, § 105. 
 
 2 Woods V. Woods, 2 Curt. Ec. 516, 6 Ray v. Sherwood, 1 Curt. Ec. 193, 
 529, 7 Eng. Ec. 181, 187; Chick o. 199. 
 
 Ramsdale, 1 Curt. Ec. 34. 
 94 
 
CHAP. TI.] 
 
 VOID AND VOIDABLE. 
 
 §111 
 
 the common law itself;^ and to it the ecclesiastical courts as 
 well as those of the common law yielded ; making it therefore 
 a doctrine equally respected in all the tribunals.^ In Scotland, 
 where this cause has not operated, such a distinction is said 
 to be unknown ; ^ yet this has been doubted there, and it 
 seems not to be clear, whether, in the case of impotence in 
 one of the parties to a marriage, the other is entitled to enter 
 into a second marriage without having the first declared null.* 
 
 1 The ancient common law is now 
 partially restored in England by recent 
 statutes. Rogers Ec. Law, 2d ed. 635 ; 
 post, § 119. 
 
 2 Elliott V. Gurr, 2 Phillim. 16, 1 
 Eng. Ec. 166, 169. 
 
 3 Shelford Mar. & Div. 86 ; "Wadd. 
 Dig. 223, note. 
 
 * 1 Eras. Dom. Rel. 81 ; Masterton's 
 Case, 1 Swinton, 427. Much confusion 
 has existed in the minds of judges not 
 familiar with the history recorded in 
 our text, concerning this distinction of 
 void and voidable in marriage. There- 
 fore it is perhaps desirable to clear the 
 matter still further, by correcting a 
 misapprehension which appears in an 
 opinion of a very able and learned 
 judge of the North Carolina court. In 
 the case of Gathings v. Williams, 5 Ire. 
 487, Ruffin, C. J. observed : " There is 
 a distinction in the law between void 
 and voidable marriages, where even 
 they were regularly solemnized. The 
 latter, which are sometimes called 
 marriages de Jacto, are such as are 
 contracted between persons who have 
 capacity to contract marriage, but are 
 forbidden by law from contracting with 
 each other; as to which, therefore, 
 there was a jurisdiction in the spirit- 
 ual 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 
 canon and common law ; and, as there 
 can be no proceeding in the ecclesias- 
 tical court against the parties after 
 their death, or that of one of them, 
 that event virtually makes the mar- 
 riage good ab initio to all intents, and 
 the wife and liusband may have dower 
 and curtesy, and the issue wiU be le- 
 
 gitimate. 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 understanding, or where 
 a prior marriage is still subsisting, — 
 the marriage is void absolutely and 
 from the beginning, and may be in- 
 quired into in any court." Now this 
 statement of the matter is inaccurate 
 in several respects. For example, 
 there was plainly no rule of the an- 
 cient ecclesiastical law against declar- 
 ing a marriage void for canonical 
 impediments after the death of the 
 parties ; since in fact the ecclesiastical 
 courts undertook to do so, and were 
 only restrained by prohibitions from 
 the temporal, which prohibitions fur- 
 nished matter of bitter complaint by 
 the ecclesiastical judges; Ray v. Sher- 
 wood, 1 Curt. Ec. 193, 199; 2 Inst. 
 614; Harris v. Hicks, 2 Salt. 548; 
 though at length, as we saw in the 
 text, these judges yielded, .Moreover, 
 it is hardly accurate to say that a mar- 
 riage is void where one of the parties 
 to it has no capacity to contract mar- 
 riage at all, and voidable where there 
 is no capacity to contract with each 
 other. A person physically impotent 
 has no capacity to marry at all, yet his 
 marriage is voidable, not void, impo- 
 tence being a canonical impediment ; 
 and where, as in Scotland, the guilty 
 party after a divorce is forbidden 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 evidently 
 void, not voidable. See Cox v. Combs, 
 8 B. Monr. 231 ; Berkshire v. The 
 State, 7 Ind. 389. 
 
 95 
 
§ 112 MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK III. 
 
 II. What Particular Marriages are voidable and what void. 
 
 § 112. Canonical Disabilities — Consanguinity, &c. — Impo- 
 tence — Precontract. — The canonical disabilities, as already 
 seen, render the marriage voidable, not void.^ This rule has 
 no exceptions, other than have been created by statutes. 
 These disabilities are physical impotence, and consanguinity 
 and affinity .2 They will be further considered in other con- 
 nections. Perhaps also the antiquated impediment of precon- 
 tract may be reckoned as canonical. That was where one of 
 the parties to a marriage was under a prior agreement to 
 marry a third person ; or where one of them had already 
 married a third person, but not according to the forms required 
 by the ecclesiastical law. The ecclesiastical tribunals, in such 
 a case, would compel the celebration of the prior undertaking 
 in due form, and pronounce the other marriage, though the 
 first duly celebrated, void from the beginning. But, until 
 thus avoided, it was good ; or rather, it was certainly good 
 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.^ But this entire 
 
 1 Ante, § 105. sals were per verba de prcesenti, or per 
 
 2 Elliott II. Gurr, 2 Phillim. 16, 1 verba de future. But in the latter case, 
 Eng. Ec. 166 ; Withipole's Case, cited if the defendant had already entered 
 in Howard v. Bartlet, Hob. 181 ; Ren- into a marriage duly solemnized with 
 nington v. Cole, Noy, 29 ; A. v. B., Law another person, a specific performance 
 Kep. 1 P. & IX. 559. of the contract would not be required, 
 
 ' Baxtar v. Buckley, 1 Lee, 42, 5 so as to annul such marriage [see, how- 
 
 Eng. Ec. 301 ; Lord Campbell, in Reg. ever, the aboTe-recited Stat, of Hen. 
 
 V. MilUs, 10 01. & F. 534, 763, 784. 8] ; and, even if he had not, the court 
 
 Lord Denman, in this latter case, p. would not proceed to the signijkaoit 
 
 815, expressed the opinion, in opposi- against him, on his refusing to cele- 
 
 tion to Lord Campbell, that the matri- brate a marriage with the plaintiff, but 
 
 monial contracts of which the ecclesi- would only punish him for the con- 
 
 astical courts enforced the specific tempt. On the other hand, if the es- 
 
 performance were contracts per verba ponsala were per verba de prcesenti, oi per 
 
 de prcesenti only, a point apparently verba de fularo cum copula, the subse- 
 
 contradicted by the recitations of facts quent marriage with any other person 
 
 in Stat. 32 Hen. 8, c. 38. And see would be annulled ; the defendant would 
 
 Scrimshire v. Scrimsliire, 2 Hag. Con. be required publicly to solemnize his 
 
 395, 4 Eng. Ec. 562, 564. According marriage with the plaintiff, and be en- 
 
 to Swinburne, whose authority can joined penance ; and, on refusal, would 
 
 hardly be disputed on such a point, be excommunicated, and imprisoned 
 
 the party refusing to celebrate the mar- by writ out of chancery, vmtil eompU- 
 
 riage might be proceeded against in the ance was effected. Swinb. Spousals, 
 
 ecclesiastical court, whether the espou- 85, 223, 226, 231, 232, 239. See also 
 96 
 
CHAP. VI.] 
 
 VOID AND VOIDABLE. 
 
 §113 
 
 matter of precontract, as an impediment to marriage, belongs 
 to another branch of our discussion.^ When the precontract 
 is such as to amount to a perfect marriage, though not cele- 
 brated in due form, it ought, in all propriety, to render the 
 second marriage void, even without judicial sentence. When 
 it does not amount to a marriage, there is, in tliis country, no 
 judicial power which can command the celebration, or com- 
 mand cohabitation ; therefore it cannot, with us, constitute an 
 impediment to the marriage afterward attempted. 
 
 § 113. Marriage after Fraudulent Divorce — Vacated. — If the 
 practice of the courts in Pennsylvania and some other of our 
 States, whereby sentences for divorce, even after a second 
 marriage and issue born, are vacated for fraud, — a matter to 
 be considered in another part of these volumes,^ — is to be 
 deemed established American law, then we have, as they would 
 seem to have in England, another kind of voidable marriage ; 
 though the impediment rendering it such can hardly be deemed 
 
 Holt V. Clarencieux, 2 Stra. 937. The 
 before-mentioned Stat. 32 Hen. 8, c. 38 
 (see ante, 108), abolished the impedi- 
 ment of precontract, except when copula 
 had followed ; but this branch of the 
 statute was shortly afterward repealed 
 by Stat. 2 & 8 Edw. 6, c. 23. Still 
 later however — too late t* be matter 
 of any consideration when we are in- 
 quiring after our unwritten law — Stat. 
 4 Geo. 4, c. 76, § 27, provided, " That 
 in no case whatsoever sliall any suit or 
 proceeding be had in any ecclesiastical 
 court, in order to compel a celebration 
 of any marriage in facie ecclesim, by 
 reason of any contract of matrimony 
 whatsoever, whether per verba de prce- 
 senti, or per verba de future, any law or 
 usage to the contrary notwithstand- 
 ing." See Rogers Ec. Law, 2d e3. 
 645 ; Shelford Mar. & Div. 164. But 
 as Stat. 2 & 3 Edw. 6, c. 23, is of a date 
 sufficiently early to demand our con- 
 sideration when we are inquiring after 
 the unwritten law of this country, I 
 will transcribe here, in full, the second 
 section : " That as concerning precon- 
 tracts the said former statute [32 Hen. 
 8, c. 38] shall from the first day of May 
 next coming cease, be repealed, and of 
 
 VOL. I. 7 
 
 no force or effect, and be reduced to 
 the estate and order of the king's 
 ecclesiastical laws of this reafm, which 
 immediately before the making of the 
 said estatute in this case were used in 
 this realm : so that, from the said first 
 day of May, when any cause or con- 
 tract 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 suffi- 
 ciently and lawfully proved before him) 
 to give sentence for matrimony, com- 
 manding solemnization, cohabitation, 
 consumpiation, and tractation, as be- 
 coraeth man and wife to have, with 
 inflicting of all such pains upon the 
 disobedients and disturbers thereof, as 
 in times past before the said statute 
 the king's ecclesiastical judge by the 
 king's ecclesiastical laws ought and 
 might have done, if the said statute 
 had never been made ; any clause, 
 article, or sentence of the said statute' 
 to the contrary in any wise notwith- 
 standing." The date of this enactment 
 is 1548. 
 
 1 Post, § 272. 
 
 2 Vol. II. § 753, 760, 763. 
 
 97 
 
 \ 
 
§ 114 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 canonical. This impediment is stated by Gibson as follows : 
 " In like manner do the books of common law resolve, in case 
 of a divorce a vinculo for impotency, after three years' trial and 
 examination, and sentence in the spiritual court for the per- 
 petual impotency of generation. As it was in Bury's Case,i 
 who was so divorced, but afterwards married another wife, and 
 had children by 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 mar- 
 riage 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, tliat, the church 
 appearing to have b'een deceived in the foundation of their 
 sentence, the second marriage was voidable, yet, till it should 
 be dissolved, it remained a marriage, and the issue during the 
 coverture lawful." ^ But, as already intimated, the more full 
 consideration of this question is reserved for another place. 
 
 § 114. statute authorizing Marriage after Absence unheard of — 
 Void at first — Good after a certain Period. — A statute also — 
 clearly a civil impediment — may so operate as to cause the 
 marriage to be voidable, in distinction from void. Thus a New 
 York statute,^ the language of which in substance is, that a 
 second marriage, contracted in good faith when the former 
 husband or wife has absented 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 ^s void from the time when its 
 nullity shall be decreed by a court of competent authority, — 
 is construed to make a second marriage, entered into under 
 
 1 Bury's Case, 5 Co. 98 ; Kenn's deceived, the sentence must be re- 
 Case, 7 Co. 42. voked." Welde v. Welde, 2 Lee, 580, 
 
 2 Gibs. Cod. 446 ; 2 Burn Ec. Law, 586. But see the observations of Sir 
 Phiilim. ed. 501; Morris !;. Webber, 2 John Nicholl, in Norton v. Seton, 3 
 Leon, 169. " If the parties should be Phiilim. 147, 1 Eng. Ec. 384, 388, where 
 divorced," on the ground of impotence, he , says, " What a state to place the 
 " and both should have children by the parties in ! This is something in the 
 second marriage, these second mar- text law which I cannot readily assent 
 riages must be by law set aside, and to belong to the law of England." 
 
 the first marriage declared valid ; for, 3 2 R, S. 139, § 6. 
 when the church appears to have been 
 
 98 
 
CHAP. TI.] VOID AND VOIDABLE. § 115 
 
 the circumstances thus pointed out, valid in law until dis- 
 solved. The absent husband or wife, returning, cannot rely on 
 the cohabitation had under this second marriage, as being 
 adultery, authorizing a dissolution of the first, unless indeed 
 it is continued after this second marriage is made void by ju- 
 dicial sentence ; and, until such seutence, 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 the parties, tlie marriage is, for purposes of adminis- 
 tration and succession, good.^ But the reader will observe, 
 that the sentence annulling this second marriage differs mate- 
 rially in effect from a sentence annulling a marriage voidable 
 for a canonical defect ; because it renders void the marriage 
 only from the time it is pronounced void, while the sentence 
 for the canonical defect renders it void from the beginning. 
 In like manner, the Irish statute of 9 Geo. 2, c. 11, provides, 
 " that any marriage of a person 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 mar- 
 riage, it shall be good." And this statute creates a peculiar 
 kind of voidable marriage.^ 
 
 § 115. Other Civil Impediments — Insanity — Want of Age, 
 &c. — The remaining impediments are likewise civil ; "such 
 as prior marriage, want of age, idiocy, and the like ;" * and they 
 are said to render tlie marriage void, not voidable.^ These 
 impediments will also be particularly considered in chapters 
 further on. But though they are thus said to render the 
 marriage void, not all of them render it strictly so, but some of 
 . them make it void only as contrasted with the peculiar quality 
 of voidable considered in this chapter, while in the sense in 
 which the word is used in other departments of the law it is 
 voidable. We shall even see, that " want of age," ^ on account 
 of which the union becomes what is termed an " inchoate 
 marriage," produces substantially the same effect as a canon- 
 
 1 Valleau v. Valleau, 6 Paige, 207 ; Eex v. Eoirdan, Car. Crini. Law, 3d ed. 
 Cropsey v. McKinney, 30 Barb. 47. 255. 
 
 2 White V. Lowe, 1 Redfield, 376; < Sir John Nicholl, in Elliott u. Gurr, 
 Wyles V. Gibbs, 1 Redfield, 382. 2 Phillim. 16, 1 Eng. Ec. 166. 
 
 3 Rex V. Jacobs, 1 Moody, 140 ; ^ Ante, § 105. 
 
 6 Post, § 143 et seq. 
 
§ 117 MARRIAGE IMPERPECTLT CONSTITUTED. [BOOK III. 
 
 ical disability ; the chief difference being, that in the one case 
 the act of the parties alone is sufficient to undo the bond, 
 while in the other the courts must interpose. And in cases of 
 fraud and the like, where there is truly a want of consent, 
 while the forms of solemnization have been had, — though the 
 marriage is a nullity, as much as a deed not delivered, until 
 the consent is given, — yet, if the consent is given after the 
 ceremony is performed, it need not be repeated. ^ 
 
 III. Effect of a Voidable Marriage, and of its Dissolution. 
 
 § 116. General Doctrine — Children — Administration — Di- 
 vorce — Polygamy — As Foundation for Divorce Suit. — The 
 doctrine seems to require no qualification, that a voidable 
 marriage is, until the act or sentence transpires wliich renders 
 it void, as good to every intent as if it contained no infirmity. 
 Thus the children are legitimate,^ tlie husband is entitled to 
 administer on the estate of the deceased wife,^ the wife surviv- 
 ing him is entitled to dower,* an indictment for polygamy may 
 be maintained if a second marriage is had,^ husband and wife 
 may levy a fine,^ and so of all the other consequences of mar- 
 riage. It was, however, held in the ecclesiastical courts of 
 England, that a defendant in a suit for divorce could plead the 
 voidability of the marriage by reason of a canonical defect"; ^ 
 but this was owing to the method of procedure in those courts, 
 whereby this party is permitted, by his responsive allegation, 
 to make himself substantially a plaintiff, in a manner some- 
 what corresponding to a cross action at the common law. If 
 he did not thus plead the voidability of the marriage, the judg- 
 ment in the divorce suit, it seems, affirmed the marriage, and 
 it could not be avoided afterward.^ 
 
 § 117. Parties to Voidable Marriage changing Domicil, — 
 
 ^ Post, § 214, 215. 140; 1 East P. C. 466; Reg. </. Burke, 
 
 2 2 Burn Ec. Law, Phillim. ed. 450, 3 Crawf. & Dix C. C. 96. 
 
 tit. Marriage ; Bury's Case, 5 Co. 98. « Sabell's Case, 2 Dy. 178 b. 
 
 3 Elliott V. Gurr, 2 Phillim. 16, 1 ' Guest v. Shipley, 2 Hag. Con. 321, 
 Eng. Ec. 166. 4 Eng. Ec. 548 ; Kogers Ec. Law, 361. 
 
 •• Rennington v. Cole, Noy, 29; 1 See Anonymous, Deane ,& Swabey, 
 
 Bl. Com. 434 and note. 295. 
 
 5 The State u, Moore, 3 West. Law 8 Guest v. Shipley, supra. And see 
 
 Jour. 134 ; Rex v. Jacobs, 1 Moody, Williams v. Dormer, 16 Jur. 366, 9 Eng. 
 
 100 
 
 L. & Eq. 598. 
 
CHAP. VI.] VOID AND VOIDABLE. § UK, 
 
 Where the parties to a voidable marriage transfer their 
 domicil to another State or country, the marriage is good in 
 the new locality, at least until set aside. Thus a man in 
 England having married his mother's sister, in 1834, before 
 Stat. 5 & 6 Will. 4, c. 54, rendered sucli a marriage void, 
 removed to Massachusetts, the statute of which State declares 
 this kind of matrimonial connection to be void ; and the 
 Massachusetts court, not deterred by the Massachusetts statute, 
 held this particular marriage to be good, on the well-known 
 principle, that marriages valid by the law of the country where 
 celebrated are valid everywhere. But Hubbard, J., who deliv- 
 ered the opinion, remarked : " 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 exceptions relate to marriages in the direct 
 lineal line of consanguinity, and to those contracted between 
 brothers and sisters ; 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 exceptions, by any general 
 consent among writers upon natural law, have been extended 
 further, or embraced other cases prohibited by the Levitical 
 law." 1 This matter, however, will be further considered in a 
 subsequent chapter.^ 
 
 § 118. Effect of annulling Voidable Marriage. — The doctrine 
 is a broad one, that, when a voidable marriage is set aside by 
 a decree of nullity, the parties are then considered as having 
 never been married. The children, for example, who were 
 before legitimate, become by force of the decree illegitimate; 
 and the late husband is treated as having never acquired any 
 right to the property of the wife, though the claims of third 
 persons are to some extent protected. But we shall examine 
 this doctrine more minutely when we come to consider the 
 consequences of a divorce.^ 
 
 1 Sutton V. Warren, 10 Met. 451. ever, is not the American doctrine. 
 And see Hiram v. Pierce, 45 Maine, Post, § 379-389. 
 
 367 ; Brook v. Brook, 9 H. L. Cas. 193, 2 Post, § 348 et seq. 
 the doctrine of which latter case, how- ' Vol. II. § 690-696. 
 
 IQl 
 
§ 120 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 IV. Something of English and American Statutes relating to 
 
 this Subject. 
 
 § 119. Stat. 5 & 6 Wm. 4 — How in our States. — By Stat. 
 5 <fe 6 Will. 4, c. 54, a great change was introduced into this 
 part of the English naarriage law. That statute went into 
 operation on the 31st of August, 1835. It forbade the institu- 
 tion of any new proceeding to annul a marriage, already 
 solemnized, within the prohibited degrees of affinity (not in- 
 cluding consanguinity) ; and provided, that all marriages 
 afterward solemnized within the prohibited degrees either of 
 consanguinity or affinity should be void.^ Yet it did not 
 prevent the punishment, by the spiritual courts, of persons 
 who had previously contracted marriage within the degrees of 
 affinity prohibited.^ In the United States generally, these 
 matters are regulated by statutes. Probably, in most of them, 
 marriages within the degrees prohibited are by the statutes 
 void, instead of voidable. 
 
 § 120. Construction of the Statutes — Prior Law — Polyga- 
 m9us Marriages — Incestuous. — It may not in all cases be 
 palpable, from the words of a statute, whether it is intended 
 to render the marriage it forbids voidable or void.^ The com- 
 jnon law upon tliis subject, in all the States governed by that 
 law, is probably the same as it was in England previous to 
 Stat. 5 & 6 Will. 4, c. 54.* And the question upon the con- 
 
 1 Burgess v. Burgess, 1 Hag. Con. the statute. If we do not adopt the 
 884, 392; Reg. v. Chadwick, 12 Jur. statute, clearly we do not fall back 
 174, 11 Q. B. 173, 205 ; Brook v. Brook, upon the law of nature, but upon the 
 9 H. L. Cas. 193 ; post, § 378, 382. older common law, wherein the pro- 
 
 2 Ray V. Sherwood, 1 Curt. Ec. 193, hibitions to marriage were extended 
 202. much further than under, the statute 
 
 3 And see ante, § 89-95. (ante, § 107). Therefore, as the stat- 
 * In WIghtman v. "Wightman, 4 ute was a great remedial measure, 
 
 Johns. Ch. 343, 347, and 2 Kent Com. plainly there is no room to doubt that 
 
 83, Chancellor Kent seems of opinion, our ancestors brought with them the 
 
 that the statute of Henry VIII. (ante, common law, not as it stood anciently, 
 
 § 108) is not common law in this eoun- but as it was modified thereby. But 
 
 try ; and that so, in the absence of what appears conclusive of this ques- 
 
 controUing statutory provisions, we tion is, that the distinction of void and 
 
 fall, back upon the law of nature. This voidable marriages is well established 
 
 view, if entertained by this learned in the United States, recognized by 
 
 jurist, evidently arose partly from his Chancellor Kent himself (2 Kent Com. 
 
 omitting to consider what was the 95) ; and that, as we have seen, it rests 
 
 common law of England previous to entirely on this statute of Henry VIII. 
 
 102 
 
CHAP. TII.J ESSENTIALS OP A VALID MARRIAGE. § 121 
 
 struction of every statutory provision must necessarily be, 
 whether it was intended to alter the common law. An Ohio 
 enactment having made it ground of divorce " where either of 
 the parties had a former husband or wife living at the time 
 of solemnizing the second marriage," the court held, that its 
 effect was, not to make the polygamous marriage voidable, but 
 void.i In Illinois, a provision that males of the age of seven- 
 teen, and females of the age of fourteen, might be joined in 
 marriage if " not prohibited by the laws of God," was con- 
 strued, in a case supposed to be prohibited by the laws of God, 
 namely, that of the marriage of a man with the daughter of 
 his sister, to render the marriage voidable only ; in conse- 
 quence of which it could not be set aside after the death of 
 one of the parties.^ 
 
 CHAPTER VII. 
 
 GENERAL VIEW OP THE ESSENTIALS ENTERING INTO A VALID 
 
 MARRIAGE. 
 
 § 121. Consent the Essence of Marriage — Consequences. — 
 We saw, in the foregoing discussions, that through all the 
 law of marriage runs the principle which puts it in the power 
 of parties to assume or not, at their own election, the matri- 
 monial status, while the status is imposed upon no one who 
 does not accept it voluntarily. In other words, the condition 
 of marriage is entered into through, and only through, the 
 
 At first, I was led by his suggestion to country, relating to this matter. Be- 
 
 inquire, whether the true doctrine is sides, the above statute falls fully 
 
 not that this statute has never been within that general range of English 
 
 received here; and that, therefore, the statutes (Wilbur k. Tobey, "16 Pick. 177, 
 
 distinction of void and voidable in mar- 182; Bishop First Book, § 51, 52), 
 
 riage does not exist in this country, which it is well settled belong to the 
 
 But the difficulty is, that for such a common law of our several States. 
 scepticism there is no foundation in ' Smith v. Smith, 5 Ohio State, 32. 
 
 any judicial opinion, or even intiraa- See also Harrison v. Harrison, 1 Philad. 
 
 tion ; and that it is opposed to some 389 ; ante, § 96. 
 
 direct decisions, and to the entire cur- ^ Bonham v. Badgley, 2 Gilman, 
 
 rent of the judicial atmosphere in this 622. 
 
 103 
 
§ 123 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 door of contract.! "When, therefore, we search for those im- 
 perfections which may render void or voidable a supposed 
 marriage, we are called upon only to examine a question of 
 contract between the parties, or mutual consent, as defiiied by 
 the law, with respect to tiiis particular subject. There must 
 be-, in the first place, the consenting mind ; in the second 
 place, the mind must give its consent in fact ; there must be, 
 in the third place, suitable parties whom the law permits to 
 marry, not only in general, but with each other ; and, in the 
 fourth place, there must concur all the other facts which have 
 been made legally essential, — it is not necessary here to 
 explain what they are. 
 
 § 122. Course of this Discussion — Why; — Now, the pages 
 of this book are intended for perusal and use in different 
 localities, where differing laws prevail. It will be necessary 
 therefore that we consider, more or less minutely, all the 
 various impediments, some of which are universal, others are 
 local. And this course is essential to the completeness of the 
 work, even as a work to be consulted only in places where but 
 a part of the impediments are known to the local law. For we 
 shall see, by and by, that marriage is in general to be tested, 
 as being valid or not, by the law of the place in which it is 
 entered into ; therefore, in a country like ours, the populations 
 of whose States consist of persons who were married in all 
 parts of the world, a very large proportion of all the marriages 
 to be dealt with being foreign marriages, the several States 
 being foreign to one another within the meaning of the mar- 
 riage law, — the practitioner needs to be instructed concerning 
 the general doctrines everywhere prevailing on this subject, 
 and concerning local laws other than his own, quite as much 
 as concerning his own local laws. 
 
 § 123. Continued. — Let US, therefore, in successive chap- 
 ters, bring to view the various impediments to marriage ; 
 creating in it, when celebrated, imperfections differing in kind 
 and degree. Let us consider what ones of these impediments 
 are local and what are general, and the particular effect of 
 each. In this connection we shall also inquire, what are the 
 formal ceremonies, and what is the mutual consent, essential 
 
 1 Ante, § 3, 12, 19, 93-95. 
 104 
 
CHAP. VIII.] WANT OF MENTAL CAPACITY. § 124 
 
 to marriage. Then, in a subsequent chapter, closing this part 
 of our discussions, we shall take a view of the conflict of laws 
 relating to marriage ; wherein the efifect of marriages celebrated 
 abroad, or in other States .than our own, will be considered, 
 together with various minor topics, collateral to this main 
 inquiry. The particular order of the discussion will appear as 
 it progresses. 
 
 CHAPTER VIII. 
 
 WANT OF MENTAL CAPACITY. 
 
 123 a. Introduction. 
 124-129. The Subject in its General Aspect. 
 130-135 a. Particular Applications of Doctrine. 
 136-142. Confirmation, and whether Void or Voidable. 
 
 § 123 a. How the Chapter divided. — The doctrine of this 
 chapter is, that, as there can be no marriage without the con- 
 sent of the mind,^ so there can be no matrimonial consent with- 
 out mental capacity. We shall, therefore, consider, I. The 
 Subject in its General Aspect ; II. Particular Applications of 
 the General Doctrine ; III. Confirmation by Cohabitation, and 
 whether the Marriage is Void or Voidable. 
 
 I. The Subject in its Q-eneral Aspect. 
 
 § 124. General Doctrine. — 'The doctrine of this chapter, 
 therefore, is, that, in order to constitute the mutual consent to 
 marry, out of which the law creates the status of marriage, 
 there must be in both of the parties a consenting mind, — in 
 other words, neither of them should be idiotic or otherwise 
 insane. This is but a doctrine common in the law of con- 
 tracts, and it as thoroughly pervades the matrimonial law as 
 any other department of our jurisprudence.^ 
 
 1 Ante, § 121. 1 Speers Eq. 569 ; Fornshill v. Murray, 
 
 2 Portsmouth v. Portsmouth, 1 Hag. 1 Bland, 479 ; Turner c. Meyers, 1 
 Ec. 355, 3 Eng. Ec. 154, 156 ; Jenkins Hag. Con. 414, 4 Eng. Ec. 440 ; Brown- 
 V. Jenkins, 2 Dana, 102; Crump v. ing i;. Reane, 2 PhiUira. 69, 1 Eng. Ec. 
 Morgan, 3 Ire. Eq. 91 ; Foster v. Means, 190 ; Legeyt v. O'Brien, Milward, 325, 
 
 105 
 
§ 126 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 § 125. Exploded Ancient Doctrine — The Modem Doctrine 
 stated. — Anciently the marriage of persons of unsound mind 
 was supposed to be valid, — a conclusion, 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," remarks 
 Blackstone, " since consent is absolutely requisite to matri- 
 mony, and neither idiots nor lunatics are capable of consenting 
 to any thing. And, therefore, the civil law judged much more 
 sensibly wlien 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." ^ 
 It matters not what the particular defect of reason is ; ^ for the 
 rule is general, that tiiose who have not the regular use of their 
 understanding, sufficient to deal with the common affairs of 
 life, the difficulty being, not a mere weakness, but a derange- 
 ment, or the weakness being so considerable as to amount to 
 derangement, are incapable of entering into a valid marriage, 
 or of making any other binding contract.* 
 
 § 126. Scope of this Discussion — As to Marriage, distinguished 
 from other Contracts — General Views — Test of Insanity. — The 
 doctrine of insanity, as a broad and general one, extending 
 through the entire field of our jurisprudence, cannot, of 
 course, be discussed in the present chapter. What is to be 
 done here will consist principally in calling the reader's at- 
 tention to such adjudged points of the law as particularly con- 
 
 333 ; True v. Eanney, 1 Fost. N. H. 52 ; insane persons. Hamaker v. Hamaker, 
 
 Ward V. Dulaney, 28 Missis. 410 ; Keyes 18 111. 137 ; Park v. Barron, 20 Ga. 702. 
 
 V. Keyea, 2 Fost. N. H. 553 ; Rawdou And see post, ^ 136-138. 
 
 V. Rawdon, 28 Ala. 565; Cole v. Cole, ^ 2 Bl. Com. 438, 4.39; Crump v. 
 
 5 Sneed, 57 ; Clement v. Mattison, 3 Morgan, 3 Ire. Eq. 91, 96. 
 
 Rich. 93 ; Middleborough v. Rochester, 3 1 Bishop Crim. Law, 5th ed. § 379 
 
 12 Mass. 863. and note. And see Ball v. Mannln,'8 
 
 1 Turner v. Meyers, 1 Hag. Con. 414, Bligh, n. s. 1, 21, 1 Dow & CI. 380, 391 ; 
 
 4 Eng. Ec. 440, 441. It seems very Baxter v. Portsmouth, 5 B. & C. 170; 
 
 remarkable, that even some American Ex parte Barnsley, 3 Atk. 168, 171. 
 
 judges have latterly entertained the ^ Foster v. Means, 1 Speers Eq. 569, 
 
 same idea of marriage being good, at 574. 
 the common law, celebrated between 
 106 
 
CHAP. VIII.] WANT OP MENTAL CAPACITY. § 126 
 
 cern this question of marriage, in distinction from questions 
 connected with ordinary contracts, and from questions testa- 
 mentary, and the like. It is well known that judges are in the 
 habit of applying somewhat different tests of insanity, accord- 
 ing as the inquiry arises in one department or another of our 
 law ; thus, the capacity required to make a will is not deemed 
 to be exactly the same as the capacity for entering into an 
 ordinary contract, and neither of these capacities is the exact 
 counterpart of the capacity to commit a crime. ^ And this dis- 
 tinction has its foundation both in the reason of the law and 
 the facts of particular cases ; yet, on the other hand, it is a 
 distinction of a somewhat dangerous nature, requiring the 
 courts to be careful not to carry it too far. So, as applied to 
 cases of a like class, the rules and tests whereby the question 
 of sanity or insanity is to be determined vary with the cir- 
 cumstances of the cases, if, indeed, each set of circumstances 
 be not deemed to require its own particular tests and rules. 
 Said Sir Herbert Jenner Fust, no longer ago than 1843 : " It 
 has frequently been attempted to furnisli some general rules 
 which might serve as guides to courts of law in the inves- 
 tigation and decision of cases of this description ; but all 
 endeavors to do so have failed ; every case has some distinguish- 
 ing features ; each case must be governed by its own peculiar 
 circumstances." ^ And since he pronounced these words, the 
 world, both professional and non-professional, has grown still 
 more enlightened, and has learned, tliat the phases of insanity, 
 and of idiocy, and the like (the word " insanity," or the words 
 " unsound mind," or the words, " want of mental capacity," 
 covering severally, and alone, the whole idea), are as numer- 
 ous in their developments of mental aberration as are the 
 different phases of the sound mind prolific in unfolding sound 
 mental phenomena. There is, therefore, no one test appli- 
 cable to all forms of mental unsoundness, but eacli case must 
 proceed more or less on a consideration of its particular facts.^ 
 
 1 Smith V. Tebbitt, Law Eep. 1 P. 2 Mudway v. Croft, 3 Curt Ec. 671, 
 
 & M. 398, 400 ; Hancock v. Peaty, Law 675. 
 
 Rep. 1 P. & M. 335, 340, 341. And see » i Bishop Crim. Law, 5th ed. § 379, 
 
 Banlcs v. Goodfellow, Law Rep. 5 Q. B. 881-896. 
 549, and various cases, some of them 
 American, there cited. 
 
 107 
 
§ 128 MAEBIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 § 127. Test of Insanity as to Marriage. — As applied to mar- 
 riage, a sort of test of insanity has been held to be, to con- 
 sider whether or not the party was capable of making a 
 coutract.i " If the incapacity be such," says Sir John NichoU, 
 " that the party is incapable of understanding the nature of 
 the contract itself, and incapable, from mental imbecility, to 
 take care of his or her own person and property, such an indi- 
 vidual 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 diflBcult to be found and marked out in the abstract; 
 though it may not be diflScult, in most cases, to decide upon 
 the result of the circumstances." ^ And Lord Stowell has 
 observed : " Madness may subsist in various degrees ; some- 
 times slight, as partaking rather of a disposition or humor, 
 which will not iucapacitate 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 himself and his 
 own concerns." ^ 
 
 § 128. Contiauea. — There is, on the other hand, a South 
 Carolina case in which the court observed : " It appears to us, 
 from the examination of Mrs. Frederick [the alleged insane 
 person] by the commissioners, that another inquisition is not 
 necessary. The answers given by her certainly show some 
 understanding, although a defective one, and these afford 
 
 ' Anonymous, 4 Pick. 32 ; iliddle- humanity admonishes us, that a con- 
 borough V. Rochester, 12 ilass. 363; tract so important in its social relations. 
 Page on DiT. 192, 193 ; Cole v. Cole, and bearing so materially on the peace 
 5 Sneed, 57 ; Atkinson v. Medford, 46 and happiness of families, should not 
 ilaine, 510. In Ward u. Dulaney, 23 be set aside upon sUght grounds, or on 
 Missis. 410, 414, 415, it was observed: less proof than would suffice to annul 
 " What degree of mental imbecility, contracts less sacred and important in 
 what extent of intellectual aberration, their nature." 
 
 will suffice to annul a contract of mar- 2 Browning v. Beane, 2 PhiUim. 69, 
 
 riage, it is difficult to pronounce ; cer- 70, 1 Eng. Ec. 190, 191. 
 
 tainly mere weakness of intellect, or ' Turner v. Meyers, 1 Hag. Con. 414, 
 
 even great eccentricity of conduct, 4Eng.Ec.440, 442. In Foster k. Means, 
 
 nnless it reaches a point that evinces 1 Speers Eq. 569, is a statement of facts 
 
 inability to comprehend the subject- held to evidence such imbecUity as dis- 
 
 matter of the contract, wiU not suffice ; qualifies the party to contract matri- 
 
 and every principle of sound policy and mony. 
 
 108 
 
CHAP. VIII.] WANT OF MENTAL CAPACITY. § 128 
 
 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 contracting marriage, which seems to be the chief object 
 of the petitioner." ^ We may infer from this case, that, 
 according to the opinion of the learned judges, a less degree 
 of mental capacity will qualify a woman to dispose of her 
 person and estate in marriage, than would be required as a 
 qualification to dispose, by an ordinary contract, of her estate 
 alone.^ There may be doubt, whether either this South Caro- 
 lina view or the view stated in our last section is exactly cor- 
 rect, as one of legal principle. The mental incapacity which 
 disqualifies for crime is such as renders it impossible for the 
 party to entertain tiie criminal intent ; the incapacity which 
 disqualifies for making a deed, for making a will, for making 
 a bill of sale of personal property, is an incapacity which dis- 
 qualifies a person to exercise a disposing mind in respect to the 
 particular thing. The question is not one altogether of brain- 
 quantity, or of brain-quality, in the abstract ; but it is, whether 
 the mind of the person could act and did act rationally regard- 
 ing the particular matter. It is, in a case of marriage, whether 
 the alleged insane person acted rationally regarding marriage, 
 and the particular marriage ; not, indeed, whether he acted 
 wisely, but whether he acted from the impulse of a mind sane 
 
 1 Ex parte Glen, 4 Des. 546, 549. tended age. The question here is one 
 ^ In a late English case. Lord Pen- of health or disease of mind ; and, if 
 zance observed: "It was strenuously the proof shows that the mind was dis- 
 argued on the part of the respondent, eased, the court has no means of gaug- 
 that a marriage duly celebrated was ing the extent of the derangement 
 not to be lightly annulled, and it was consequent upon that disease, or affirm- 
 rather hinted than asserted that a less ing the limits within w hich the disease 
 degree of sanity would be sufficient to might operate to obscure or divert the 
 make a marriage valid than would be mental power. ... If any cpntract 
 required for the making of a will, and more than another is capable of being 
 for some other purposes. But the invalidated on the ground of the insan- 
 court here has not, as in many testa- ity of either of the contracting parties, 
 mentary cases, to deal with varieties it should be the contract of marriage, 
 or degrees in strength of mind, with an act by which the parties bind their 
 the more or less failing condition of property and their persons for the rest 
 intellectual power in the prostration of of their lives." Hancock v. Peaty, 
 illness, or the decay of faculties in ex- Law Rep. 1 P. & M. 335, 340, 341. 
 
 109 
 
§ 130 MARRIAGE IMPERFECTLY CONSTITOTBD. [BOOK III. 
 
 as respects the thing done; though, as to this, a broad degree 
 of general insanity would of itself, without special application 
 to the particular thing, cover the particular ground. And 
 there are some legal authorities which seem to give counte- 
 nance to this view.^ 
 
 § 129. Continued. — But assuming the general proposition 
 to have been well drawn from the decisions, that the mental 
 unsoundness which disqualifies persons to enter into matrimony 
 is the same which disqualifies them from making an ordinary 
 contract, still this proposition furnishes us with only slight 
 practical help in considering the varying circumstances of 
 different cases. For plainly, when the question is, whetlier a 
 party was capable of giving his consent to a particular thing, 
 the nature of the tiling must be taken into the account. Upon 
 this principle, and this alone, is founded the doctrine,^ that a 
 difference exists between the insanity which disqualifies to 
 make a contract, and the insanity which prevents the last will 
 and testament from being valid. Therefore let us look a little 
 further at the adjudications in respect of the particular insanity 
 which makes a marriage void. 
 
 II. Particular Applications of the General Doctrine. 
 
 § 130. Commission of Lunacy — Lucid Interval — Insane Pe- 
 riod — Insanity subsequent to Marriage. — In England, by statute 
 15 Geo. 2, c. 30 (of a date, 1742, not sufficiently early to be 
 received as common law in any of our States) , if a commission 
 of lunacy has been taken out against a party, and it remains 
 unrevoked, his marriage, though celebrated during a lucid 
 
 1 See True v. Ranney, 1 Post. N. H. may feel as well as the strongest Intel- 
 
 52 ; Ward v. Dulaney, 23 Missis. 410, lects, than on the exercise of a clear, 
 
 extracted from in note to § 127, ante ; unclouded reason, or sound judgment, 
 
 Harrod v. Harrod, 1 Kay & Jolms. 4, or intelligent discernment and discrimi- 
 
 14 ; Doe !;. Koe, 1 Edm. Sel. Cas. 344. nation, and in which it difiers in a very 
 
 In a Delaware case, Houston, J., ob- important respect from all other civil 
 
 served : " It would he dangerous, per- contracts." p. 319. Elzey v. Elzey, 1 
 
 haps, as well as difiicult, to prescribe Houston, 308, 319. Perhaps the follow- 
 
 the precise degree of mental vigor, ing cases, not matrimonial, may shed 
 
 soundness, and capacity essential to the some light on the question : Aiman u. 
 
 validity of such an engagement ; w*hich, Stout, 6 Wright, Pa. 114 ; Hovey v. 
 
 after all, in many cases depends more Hobson, 65 Maine, 256. 
 
 on sentiments of mutual esteem, attach- 2 Ante, § 126. 
 ment, and affection, which the weakest 
 
 110 
 
CHAP. VIII.J WANT OP MENTAL CAPACITY. § 131 
 
 interval, is void.^ But where there has been no commission 
 of lunacy, the marriage of a lunatic, during a lucid interval, is 
 good ; and so it was in all circumstances in England before 
 this statute,^ and so, therefore, it is now by the common law 
 of our States generally. On the other hand, the marriage of 
 a person habitually sane, celebrated in a period of temporary 
 insanity, is invalid.^ The question in all cases is, whether the 
 mind, at the time of the alleged consent, was capable of con- 
 senting. Therefore insanity, occurring subsequently to the 
 nuptials, if the mind was sound at the time, does not affect 
 their original validity, neither is it believed to be anywhere a 
 cause of divorce.* But evidently if there are manifestations of 
 mental disorder immediately following the ceremony, they 
 may shed light on the condition of the mind at the time. 
 And Dr. Ray considers, that there are cases of this kind of an 
 extremely embarrassing nature.^ It has been held, that the 
 commission of suicide directly after the marriage is not suffi- 
 cient evidence of insanity to render it void ; and indeed the 
 broad doctrine seems to have been maintained, that this is no 
 evidence.^ 
 
 § 131. Intoxication as a Species of Insanity. — A learned 
 
 1 Turner v. Meyers, 1 Hag. Con. ceeds, the reader perceives, on the idea 
 414, 4 Eng. Ec. 440, 442 ; Shelford Mar. of a fraud practised while the person 
 & Div. 191, 197. See Cartwright v. was sane. I cannot but think that this 
 Cartw.right, 1 Phillim. 90, 1 Eng. Ec. statute treads very close to dangerous 
 47; Wheeler v. Alderson, 3 Hag. Ec. ground, if not upon it. 
 
 574, 599, 5 Eng. Ec. 211, 223 ; Borlase ^ Eay Med. Jurisp. Insan. 2d ed. 
 
 V. Borlase, 4 Notes Cas. 108 ; Grimani § 201. See Wheeler v. Alderson, 3 Hag. 
 
 V. Draper, 12 Jur. 925. Ec. 574, 5 Eng. Ec. 211. 
 
 2 Shelford Mar. & Div. 197 ; Turner " McAdam o. Walker, 1 Dow, 148, 
 V. Meyers, 1 Hag. Con. 414, 4 Eng. Ec. 180. And see Burrows v. Burrows, 1 
 440, 442. Hag. Ec. 109, 3 Eng. Ec. 49 ; Cham- 
 
 ' Legeyt v. O'Brien, Milward, 325 ; bers v. The Queen's Proctor, 2 Curt. 
 
 Parker v. Parker, 2 Lee, 382, 6 Eng. Ec. 415, 7 Eng. Ec. 151 ; 1 Eras. Dom. 
 
 Ec. 165. Eel. 46. Probably the better rule is to 
 
 * Parnell o. Parnell, 2 Hag. Con. receive the evidence of suicide when 
 
 169 ; Page on Div. 185, note ; Shelford offered in connection with other testi- 
 
 Mar. & Div. 190. I find a Kentucky -mony, but to reject it when standing 
 
 statute, enacted Dec. 20, 1865, which alone. In a Tennessee case, Reese, J., 
 
 makes lunacy or unsound mind, of observed : " A will prepared in view of 
 
 three years' standing, a cause of divorce, suicide, and of course under the infiu- 
 
 if it is the result of intemperance or of ence .of the morbid and unhappy feel- 
 
 a hereditary taint of insanity, which ings leading to that catastrophe, must, 
 
 was concealed at the time of the mar- where its validity is in question, be 
 
 riage. I am not aware that even this largely affected by that circumstance." 
 
 provision exists elsewhere. It pro- Pettitt v. Pettitt, 4 Humph. 191, 193. 
 
 Ill 
 
§ 131 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK II. 
 
 judge has observed, that a marriage will not be rendered void 
 by being entered into while the party was intoxicated ; though 
 insanity from delirium tremens, produced by intoxication, will 
 avoid it.i There is no question of the latter branch of this 
 proposition ; ^ and even as to the former the rule applicable to 
 contracts generally, doubtless therefore to marriage, is, that 
 mere intoxication, while the party retains his reason and knows 
 what he is about, will not make the contract void.^ It was, 
 moreover, at one time, held, in respect to contracts generally, 
 that intoxication unmingled with fraud was no excuse, and 
 created no privilege in avoidance of them ; * and the rule in 
 equity seems still to be, that the court will not interfere to 
 assist a party to a contract on the ground merely of intoxica- 
 tion, where no unfair advantage was taken.^ But the settled 
 doctrine of modern law is, that, since a person to make a valid 
 agreement must have an agreeing miud,^ 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 ex- 
 tent, 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., observed : " Drunken- 
 
 1 Clement v. Mattison, 3 Rich. 93. was accordingly acquitted. Reg. v. 
 
 2 Legeyt v. O'Brien, Milward, 325. Moore, 16 Jur. 752 ; and see the ob- 
 And see Menkins v. Lightner, 18 111. servations on this case in 1 Am. Law 
 282. Reg. 37. See also 1 Bishop Crim. Law, 
 
 3 Gore V. Gibson, 13 M. & "W. 623. 5th ed. § 400-416. 
 
 * 2 Kent Com. 451, and the author- 7 2 Kent Com. 452 ; Chitty Cont. 
 
 ities there cited ; Johnson v. Medlicott, Perkins's ed. 140, note ; Story Cont. 
 
 3 P. Wms. 130, note ; Cooke u. Clay- § 27 ; Smith on Contracts, 233 and 
 
 worth, 18 Ves. 12. note; Barratt v. Buxton, 2 Aikens, 
 
 5 2 Kent Com. 452, 6th ed. note b. 167 ; Fenton u. HoUoway, 1 Stark. 
 See, however, Clifton v. Davis, 1 Par- 126 ; Bennett v. The State, Mart. & 
 sons, 31. And see Shaw v. Thackary, Yerg. 133 ; Cornwell v. The State, 
 23 Eng. L. & Eq. 18. Mart. & Yerg. 147 ; Cummings v. Henry, 
 
 6 Lord EUenborough, in Pitt «.. 10 Ind. 109. 
 
 Smith, 3 Camp. 33 ; Gore u. Gibson, « Woods v. Pindall, Wright, 507 ; 
 
 13 M. & W. 623 ; Clifton v. Davis, 1 Barney v. Dimmitt, Wright, 44. And 
 
 Parsons, 31. So on an indictment for see The State o. Turner, Wright, 20, 
 
 an attempt to commit suicide, the court 30 ; The State v. Thompson, Wright, 
 
 observed to the jury : "If the prisoner 617, 622; 2 Greenl. Ev. § 374; Callo- 
 
 was so drunk as not to know what she way v. Witherspoon, 5 Ire. Eq. 128. 
 was about, how can you find that she ' Hutchinson v. Tindall, 2 Green 
 
 intended to destroy herself?" and she Ch. 357. 
 
 112 
 
CHAP. VIII.J WANT OF MENTAL CAPACITY. § 134 
 
 ness 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 contract is 
 void." 1 The true distinction is, that, while in criminal juris- 
 prudence a man is ordinarily to be held for his criminal act, 
 committed in a fit of mere intoxication however oblivious, 
 since his assent to the drinking to excess is a criminal assent,^ 
 — yet, in civil jurisprudence, the doctrine of contracts makes 
 him bound only when his mind is capable of contracting, not 
 permitting another person to gain an advantage from his mere 
 intent to drink. 
 
 § 132. Continued. — Applying the doctrine to mari-iage, this 
 relation was in Scotland held not to have been entered into, 
 and the form of marriage by mutual promise was pronounced 
 void, where the woman was shown to have been in such a state 
 of intoxication as to be incapable of giving a valid consent.* 
 The incapacity flowing from drunkenness is not looked upon 
 as permanent insanity, but is rather likened to intermittent, 
 ceasing with the exciting cause.* At the same time, the cases 
 cannot bo numerous in which a marriage will in fact be cele- 
 brated while one of the parties is too drunk to understand 
 what is going on, unless the other is practising some fraud in 
 the matter. For no honest-minded person would be willing 
 to go over the form of matrimony with another known to be 
 beastly drunk, even though willing under other circumstances 
 to marry a drunkard. 
 
 § 133. Deaf and Dumb — Blind. — We hardly need say, that 
 a person deaf and dumb may still be competent to contract 
 matrimony. He may enter into it by signs.^ The same prin- 
 ciple applies to one deprived of sight. 
 
 § 134. Fraud Practised on Weak Intellect. — The cases 
 oftenest occurring are where partial insanity, or great weak- 
 
 1 Jenners v. Howard, 6 Blackf. 240. * Wheeler v. Alderson, 3 Hag. Ec. 
 
 2 1 Bishop Crim. Law, 6th ed. § 397 574, 5 Eng. Eo. 211 ; 1 Eras. Dom. 
 et seq. Eel. 48 ; Shelford Mar. & Div. 199. 
 
 3 Johnston v. Brown, 2 Scotch Sess. See Elzey v. Elzey, 1 Houston, 308. 
 Cas. new ed. 437 ; s. c, where the ^ Dickenson !'. Blisset, 1 Dickens, 
 facts are more fully reported, Ferg. 268 ; Elyot's Case, Cart. C3 ; Brower v. 
 Consist. Law, Eep. 229. This case Eisher, 4 Johns. Ch. 441 ; Harrod v. 
 appears to embrace also some of the Harrod, 1 Kay & Johns. 4 ; 1 Eras, 
 elements of fraud. Dom. Eel. 48. 
 
 VOL. 1. 8 113 
 
§ 135 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 ness of intellect, is circumvented by fraud. Of this nature 
 was the Earl of Portsmouth's case : the Earl, being of weak 
 mind, somewhat disordered, was led, by the artifice of his 
 trustee and solicitor, whose influence over him was great, into 
 a marriage with this person's own daughter ; and the marriage 
 was declared void.^ And the case of Browning v. Reane is of 
 the like nature ; where a man of forty contrived to bring about, 
 between himself and a woman of seventy, — a drunkard, with 
 considerable property, which he meant to secure, — a marriage 
 without a settlement, or the knowledge of her friends. It, 
 also, was held to be void.^ 
 
 § 135. Blending of Fraud and Insanity. — Indeed, the two 
 ingredients of fraud and insanity, thus blended together in 
 matrimonial causes, often produce, by their united action, a 
 nullity which neither of them could alone effect. We shall 
 consider this topic further, when we come to treat of fraud.^ 
 At present it will be sufficient to add, that, in all cases of 
 weakness of mind, where the act of the party is sought to be 
 set aside on this ground of imbecility, the court inquires, 
 among other things, whether the act was a proper one under 
 the circumstances, and beneficial to the person whose mental 
 weakness is in question. Plainly if found to have been such, 
 the question of fraud is almost entirely excluded from the case, 
 and that of mental imbecility is presented in a new aspect ; 
 for, as to the fraud, no injury was done, and therefore none 
 was probably intended ; and, as to the mental weakness, the 
 particular act of the mind was not a weak one. Yet doubt- 
 less there might be a case of this general complexion, in which 
 the marriage would still be adjudged void.* 
 
 1 Portsmouth v. Portsmouth, 1 Hag. insane was made in a lucid interval, 
 Ec. 355, 3 Eng. Eo. 154. Sir William Wynne observed : " Now 
 
 2 Browning v. Eeane, 2 Phillim. 69, I think the strongest and best proof 
 1 Eng. Ec. 1 90. that can arise as to a lucid interval is 
 
 3 Post, § 198 et seq. that which arises from the act itself ; 
 * See, as rather illustrating than that I look upon as the thing'to be first 
 
 sustaining the doctrine of the text, examined, and if it can be proved and 
 
 Birdsong v. Birdsong, 2 Head, 289; established that it is a rational act 
 
 Carr v. HoUiday, 5 Ire. Eq. 167 ; Cart- rationally done, the whole case is 
 
 Wright V. Cartwright, 1 Phillim. 90. In proved. What can you do more to 
 
 the case last cited, — a testamentary establish the act ? because, suppose 
 
 one, — in which the question was, you are able to show the party did that 
 
 whether the will of a person habitually which appears to be a rational act, and 
 
 114 
 
CHAP. VIII.] WANT OP MENTAL CAPACITY. § 136 
 
 § 135 a. " Insanity," under a Statute. — If a statute makes 
 " insanity " a ground of nullity, but does not make fraud 
 such, yet if a particular case is one of this double aspect in 
 which fraud and mental weakness blend, the court may be 
 embarrassed how to deal with it under the statute, though the 
 course should be plain on the principles of the unwritten law. 
 Thus, in Delaware there is the following provision : " The said 
 court shall have such cognizance to decree marriages null and 
 void which are prohibited by law for consanguinity, or affinity, 
 or between a white person and a negro or mulatto, or where 
 either of the parties had, at the time of the marriage, another 
 husband or wife living ; or where either of the parties was at 
 that time insane." And the court came to the conclusion, 
 that, under the statute, it had no jurisdiction to declare a 
 marriage void for mental weakness not amounting to idiocy or 
 lunacy, or for intoxication, or fraud practised on a weak mind.^ 
 This question, however, should be examined in connection 
 with some doctrines to be stated in our second volume.^ 
 
 III. Confirmation hy. Cohabitation, and whether the Marriage is 
 Void or Voidable. 
 
 § 136. Void — Consequences. — That the marriage of parties, 
 one of whom was at the time of its celebration insane, is void, 
 in distinction from voidable, we have already, in brief, con- 
 sidered.^ The consequence of this doctrine is, that the defect 
 may be relied upon, in avoidance of the marriage, 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 afterward, the marriage is 
 judicially called in question.* We have already seen,^ that 
 
 it is his own entirely, nothing is left to ' Ante, § 93-95, 105, 125. 
 presumption in order to prove a lucid * Browning v. Reane, 2 Philllm. 269, 
 interval. Here is a rational act ration- 1 Eng. Eo. 190 ; Parker v. Parker, 2 
 ally done. In my apprehension, where Lee, 388, 6 Eng. Ec. 165 ; Ex parte 
 you are able completely to establish Turing, 1 Ves. & B. 140, where a mar- 
 that, the law does not require you to riage within Stat. 12 Geo. 3, c. 11, was 
 go further." p. 100. held to be void ; Foster v. Means, 1 
 
 1 Elzey V. Elzey, 1 Houston, 308. Speers Eq. 569; Johnson v. Kincade, 2 
 
 2 Vol. II. § 291-293. Ire. Eq. 470 ; Jenkins v. Jenkins, 2 
 
 5 Ante, § 125. 
 
 115 
 
§ 137 MAEEIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 there was once a time when marriages between insane persons 
 were supposed to be valid. But since the darkness of this 
 period passed away, down to a very recent date, there has not 
 been any contrariety of opinion upon this question ; nor, till 
 recently, have there been promulgated any such doctrines as 
 those mentioned in a preceding chapter,^ indicating the ne- 
 cessity of a decree pronouncing the marriage null, in order for 
 this consequence to follow. Yet, notwithstanding this doc- 
 trine, suits of nullity in these cases, directly between the 
 parties, are always allowed ; and, where a competent tribunal 
 is called upon to pronounce the decree of nullity, and a case 
 is made out, the tribunal, though even it be a court of equity, 
 can exercise no discretion, but is compelled to proceed to the 
 decree.^ The marriage, indeed, is just as void in law without 
 the decree as with it ; while still prudential reasons, other than 
 strictly legal, may strongly indicate the propriety of the party's 
 carrying the matter for direct adjudication before the court.^ 
 
 § 137. Contrary Views. — Though the doctrines of the last 
 section are both clear of themselves and founded on abundant 
 authority, there are, as we have already seen,* both stat- 
 utes and judicial decisions in which, in some of our States, 
 they appear to be utterly ignored. Thus, not to speak of 
 cases intimating that the invalidity of a marriage, where 
 insanity is set up, can be relied upon only in a direct suit 
 between the parties for its nullity, we have, of late, such 
 legislation as was referred to in a previous chapter, wherein 
 were quoted statutes in words ordaining this result.^ Nor yet 
 to speak of a recent Illinois case in which the court laid down 
 the proposition, that, by the common law, the marriage of 
 insane persons is good, and cannot be set aside even in a suit 
 instituted for the express purpose,^ we have a very late Georgia 
 
 Dana, 102 ; Middleborough v. Roch- 2 Crump v. Morgan, 3 Ire. Eq. 91 ; 
 
 ester, 12 Mass. 363 ; "Wightman v. Hancock v. Peaty, Law Rep. 1 P. & 
 
 Wightman, 4 Johns. Ch. 343; Jaques M. 385. 
 
 V. The Public Administrator, 1 Bradf . ' Rawdou v. Rawdon, 28 Ala. 565 ; 
 
 499 ; Rawdon v. Rawdon, 28 Ala. 565 ; Wightman ,j. Wightman, 4 Johns. Ch. 
 
 Clement v. Mattison, 3 Rich. 93 ; 343. 
 
 Atkinson v. Medford,46 Me. 610; Har- * Ante, § 90-95. 
 
 rod V. Harrod, 1 Kay & Johns. 4; 1 ^ Ante, § 91-95; Goshen v. Rich- 
 
 Burge Col. & Eor. Laws, 138. mond, 4 Allen, 458. 
 
 1 Ante, § 94. « Hamaker v. Hamaker, 18 111. 137. 
 116 
 
CHAP. Till.] WANT OP MENTAL CAPACITY. § 137 d 
 
 decision, in which, under tlie statutes, indeed, of Georgia, 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 the marriage, therefore, origi- 
 nally good. Said Lumpkin, J., " Nowhere else is mental 
 incapacity, except in Georgia, so far as I know, made a ground 
 for divorce. Elsewhere proceedings are instituted in chancery, 
 or some other court, to annul the pretended marriage. A sen- 
 tence 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 divorce 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 ? " ^ Yet the court was 
 certainly mistaken in its supposition, that nowhere except in 
 Georgia is the suit to annul the marriage on the ground of 
 insanity called a suit for divorce ; the term " divorce " is, in 
 Jacob's Law Dictionary, also in the reprint by Tomlins, defined 
 to be " the separation of two, de facto married together, made 
 by law." The definition is the game, substantially, in the 
 Dictionary of Burn ; and, though the expression " sentence of 
 nullity " may be more appropriate, the term divorce has been 
 always more or less used, both in England and in this country, 
 to signify the sentence which pronounces the marriage void, 
 both when it was in law void, and when it was in law void- 
 able. 
 
 § 137 a. Continued. — There is perhaps nothing more re- 
 markable under this head tlian a Vermont case, decided as 
 late as 1870, — by a court, it may be observed, from which 
 excellent decisions on questions connected with marriage and 
 divorce have sometimes proceeded. A lunatic, palpably and 
 clearly such, and under guardianship as a lunatic, went 
 through a form of marriage with a girl with whom he occa- 
 sionally cohabited. He had no lucid interval, and there was 
 no suspension of the guardianship. On his death it was held, 
 tbat, no proceeding having been had to set aside this formal 
 marriage, she was entitled to the legal rights of a widow.^ 
 1 Brown v. Westbrook, 27 Ga. 102, 106. 2 Wiser v. Lockwood, 42 Vt. 720. 
 
 117 
 
§138 
 
 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 This decision was, indeed, based upon the statutes of the 
 State.i We have already seen something of this sort of 
 enactment and its interpretation.^ But the court also laid it 
 down, that " this construction of the provisions of the statute 
 is in harmony with the common law on the. subject ; "^ not 
 appearing to be aware that the booiia contain any doctrine 
 contrary to this. 
 
 § 138. Desirableness of Direct Proceedings — Suspending Cause 
 
 1 Tt. Gen. Stats, c. 70, § 1-3, 5-8, 
 as follows : — 
 
 " Section 1. All marriages which are 
 prohibited by law or on account of 
 consanguinity or affinity between the 
 parties, or on account of either of them 
 haying a former wife or husband then 
 liying, shall, if solemnized within this 
 State, be absolutely void without any 
 decree of divorce or other legal pro- 
 cess. 
 
 " 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 nuUity 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 
 fi-aud. 
 
 " Fourth. That one of the parties 
 was physically incapable of entering into 
 the marriage state. 
 
 " 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 apphcation of any 
 relative of such idiot, interested to avoid 
 
 118 
 
 the marriage, 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 applica- 
 tion of any relative of the lunatic in- 
 terested to avoid the marriage. 
 
 " Sect. 7. When the marriage of an 
 idiot or lunatic is sou^t to be annulled 
 during the lifetime of both the parties 
 to the marriage, and no suit shall be 
 prosecuted by any relative, a sentence 
 of nullity 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 
 application of the lunatic, after the 
 restoration of reason ; but, in such case, 
 no sentence of nullity shall be pro- 
 nounced, if it shall appear that the 
 parties freely cohabited as husband 
 and wife, after the lunatic was restored 
 to a sound mind." 
 
 2 Ante, § 90-95. 
 
 3 Referring to Bac. Abr. Idiots and 
 Lunatics, D ; Smart v. Taylor, 9 Mod. 
 98; Ex parte Turing, 1 Ves. & B. 
 140 ; Wightman v. Wightman, 4 Johns. 
 Ch. 343; Co. Lit. 33 u. I cannot 
 discover any thing here, except the 
 " strange determination " spoken of by 
 Blackstone (ante, § 125), to sustain the 
 proposition to which these authorities 
 were cited. 
 
CHAP. VIII.] WANT OF MENTAL CAPACITY. § 138 
 
 that they may be taken. — There is a North Carolina case 
 which sheds over this subject a light really worthy of regard. 
 Persons who alleged themselves to be husband and wife 
 brought their bill in equity, for an account, against the guar- 
 dian of the wifa; and, among the pretences in the bill, they 
 averred that the defendant guardian relied upon a fact of mar- 
 riage had between the wife and another man, previously to the 
 marriage solemnization between her and the plaintiff husband ; 
 which prior marriage, the bill averred, was void by reason of 
 imbecility, &c., making the present marriage good. But the 
 court declined to entertain, in this collateral way, the question 
 of the invalidity of the former marriage ; and so ordered the 
 case to be " retained for further directions," that the plaintiff 
 wife might meanwhile, if she saw fit, institute and carry on 
 proceedings to have such former marriage declared 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 tri- 
 bunal, such tribunal has power to decide the question as 
 necessarily involved in the exercise of its appropriate jurisdic- 
 tion. Without entering upon this subject,, it is sufficient to 
 say, in the language of the court in Johnson v. Kincade,i ' It 
 is convenient and fit in respect to the decent order of society, 
 the condition of the parties, and succession of estates, that the 
 validity of such a marriage should be directly the subject of 
 judicial 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 ver- 
 dict, and not otherwise, 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 mar- 
 riage 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 
 1 Johnson v. Kincade, 2 Ire. Eq. 470, 474. And see ante, § 136. 
 
 119 
 
§ ] 39 MARRIAGE IMPERPECTLT CONSTITUTED. [BOOK HI. 
 
 incidental to an ordinary bill for an account, where the trial 
 will be made without the intervention of a jury, upon deposi- 
 tions which are usually taken in a defective and unsatisfactory 
 manner." ^ Now, without entering upon any consideration of 
 the peculiar jurisprudence of North Carolina, or of the effect 
 of the statutes referred to by the judge, it seems to the writer 
 of these volumes that, looking at the question as one of general 
 jurisprudence alone, the course which the court gave to this 
 case was, as a matter of practice, and viewed in reference to 
 the particular facts alleged, eminently wise and just. And it 
 would be an excellent rule, in whatever court adopted, to 
 require that a party setting up any special matter, as insanity 
 or the like, in avoidance of a fact of marriage under which 
 cohabitation had taken place, should give timely notice of his 
 purpose in this respect ; and, if the case was one in which the 
 party had it in his power, according to the laws prevailing, to 
 institute a suit for nullity, then to require the investigation to 
 be made by means of such a suit, or, in default of it, the with- 
 drawal of the allegation. But this is not to hold the marriage 
 voidable in distinction from void. It is not to make property 
 change hands on the death of a person, whenever it should 
 be thus ascertained that a formal marriage, without the matri- 
 monial consent essential to superinduce the status, had taken 
 place between such person and another ; it is not to do injus- 
 tice to the parties, but to establish justice as a uniform rule 
 for them. 
 
 § 139. Affirming the Marriage hy Subsequent Cohabitation : — 
 Intunatioiis against such Confirmation. — From the proposition 
 that the marriages of insane persons are utterly null and void, 
 it may seem to result that the mutual recognition and cohabi- 
 tation of the parties as husband and wife, after the return of 
 reason, is insufficient to cure tlie original defect, especially in 
 those localities where marriage is good only when solemnized 
 according to a particular form. And in Crump v. Morgan, the 
 Supreme Court of North Carolina appear, without absolutely 
 deciding the point, to favor this view. They observe : " A 
 writer upon the law of marriage," referring to Mr. Poynter, 
 " lays it down that, when a marriage is void ipso facto, acquies- 
 
 1 Williamson v. Williams, 3 Jones Eq. 446, 447, 448. 
 120 
 
CHAP, vm.j WANT OP MENTAL CAPACITY. § 140 
 
 cence, 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 
 acquiescence, during long and frequent periods of undoubtedly 
 restored reason, would be cogent proof of competent under- 
 standing at the time of the marriage ; but, assuming lunacy to 
 have existed, the rule of the author quoted seems to be sus- 
 tained by the consideration 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 iu the beginning." ^ 
 
 § 140. Such Confirmation Good. — Yet probably this reason- 
 ing of the North Carolina court proceeds from an imperfect 
 apprehension of the principle which properly governs questions 
 of this nature. In localities where the law requires nothing 
 more than consent to constitute a valid marriage, little doubt 
 can exist, that, if the parties continue to cohabit after arriving 
 at a lucid interval, this cohabitation will render their marriage 
 good ; and perhaps this is the state of tlie law in which the 
 older authorities originated. For Shelford remarks, " 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." ^ But even where the local law 
 requires the concurrence of two things ; namely, first, a com- 
 pliance with certain formalities ; secondly, the consent of the 
 parties ; it does not appear that the formalities and the consent 
 must concur in point of time. And we shall see in the proper 
 place, that, in cases of fraud, duress, and the like, they need 
 not ; but, if there is a formal marriage to-day, to which, by 
 reason of fraud, duress, or error there is no consent, yet, if the 
 consent is given to-morrow, the marriage is good.* And the 
 deed of an insane person has been termed voidable, not void ; ^ 
 
 1 Poynter Mar. & Div. 157. * Post, § 215, The case of children 
 
 2 Crump u. Morgan, 8 Ire. Eq. 91. marrying under the age of consent may 
 And see, as tending the same way, seem also in point ; but such marriages 
 observations in Ward v. Dulaney, 23 are held to be incomplete, not so much 
 Missis. 410, 432, 433. from a want of mental, as of physical, 
 
 s Shelford Mar. & Div. 197. Eefers capacity. There no new solemnization 
 to Ashe's Case, Pr. Ch. 703 ; Freeman, is required. 
 C. C. 259. * AUis v. Billings, 6 Met. 415.. 
 
 121 
 
§ 142 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 though some old cases have a look the other way.^ But the 
 deed is not voidable in the sense of the ecclesiastical law of 
 marriage ; it simply requires no new sealing ; it will bind the 
 maker after he has, during a lucid interval, affirmed it, not 
 before. For the same reason it would seem, that a lunatic, on 
 regaining his reason, may affirm a marriage celebrated while 
 he was insane, even though a statute had required a particular 
 form of solemnization. 2 The purpose of the statute, being to 
 secure notoriety for the marriage, and preserve the evidence of 
 it, is thus fully accomplished, and the rights of the parties are 
 at the same time protected. 
 
 § 141. Question further discussed. — The cases to which we 
 may presume Mr. Poynter alludes, in the place referred to by 
 the North Carolina court, are of an entirely different nature 
 from those now under consideration. They are cases in which, 
 though the parties gave consent to the marriage, some defect 
 of form entered into the original ceremony, when, of course, 
 this defect could not be cured by any amount of consent given 
 then or afterward. And perhaps, — a point not quite so plain, 
 — if a man and woman should give consent to be to each other 
 husband and wife, and should add to this consent a perfect 
 compliance with all requisite forms, yet some impediment to 
 the marriage should exist at the time, — such, for instance, as 
 one of them Iiaving another matrimonial partner living, — this 
 imperfect union could not be perfected, on the mere withdrawal 
 of the impediment, by the bare repetition of the consent, with- 
 out also a repetition of the forms. There are in the books 
 cases which proceed on the supposition that marriage could 
 not be constituted thus, yet probably the point is not directly 
 adjudged. 
 
 § 142. Continued — The True Doctrine. — And in a Still later 
 North Carolina case the learned judge observed : " It may 
 well be, that a second marriage, while the iirst is still subsist- 
 ing, is void and incapable of confirmation ; because it is so 
 utterly denounced by the law as to subject the party marrying 
 • a second time to capital punishment as a felon, but a mere 
 want of age or understanding rests on a different footing 
 
 1 Shelford on Lunatics, 255 et seq. 4 Johns; Ch. 843, 345. And see Durie 
 
 2 See also "Wightman v. Wightman, v. Norris, 1 U. S. Mo. Law Mag. 49. 
 
 122 
 
CHAP. IX.J WANT OP AGE. § 144 
 
 entirely." ^ Also a late Tennessee case lays down the doctrine, 
 that one who is tnarried while a lunatic may, on being restored 
 to reason, affirm the marriage, by acts recognizing its validity, 
 without any new solemnization ; ^ and there is really no room 
 to doubt, that this is the true doctrine, applicable as well 
 where particular forms are required, as where they are not. 
 
 CHAPTER IX. 
 
 WANT OP AGE. 
 
 § 143. General Doctrine — Marriage and Agreement to marry 
 distinguished. — The impediment of the want of age furnishes 
 an illustration of the distinction, already mentioned, between 
 an agreement of marriage, sup'erinducing the status, and an 
 agreement to marry .^ An agreement to marry, entered into 
 by an infant, being a person under the age of twenty-one 
 years,* either with another infant, or with a person of full age, 
 is, like any other executory contract, voidable by the infant, 
 yet binding on the party who has reached his majority ; con- 
 sequently an infant can maintain an action for the breach of 
 a promise to marry, against one who at the time of making it 
 had arrived at the age of twenty-one years, while the latter 
 can maintain no action against the infant.^ But when the 
 agreement to marry has been executed in a present marriage, 
 its binding nature depends, not on the question of majority 
 and minority in years, but upon the special question of capacity 
 or incapacity to contract matrimony, considered as to physical 
 capability, equally as to mental. 
 
 § 144. Physical Capability — Twelve and Fourteen Years of 
 
 1 Pearson, C. J. in Koonce u. Wal- reduced, as to females, to eighteen, 
 lace, 7 Jones, 194, 198. See Kester v. Stark, 19 111. 328. 
 
 2 Cole V. Cole, 5 Sneed, 57. ^ Holt v. Ward, 2 Stra. 937 ; Hunt w. 
 
 3 Ante, § 3. Peake, 5 Cow. 475 ; Willard v. Stone 
 
 4 Twenty-one is the age of majority 7 Cow. 22; Cannon v. Alsbury, 1 A. K. 
 at the common law, both in males and Mar. 76 ; Pool v. Pratt, 1 D. Chip. 252 ; 
 females ; but there are several of our Warwick v. Cooper, 5 Sneed, 659 ; Ham- 
 States in which the age is by statute ilton v. Lomax, 26 Barb. 615. 
 
 123 
 
§ 144 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 Age. — We shall see, when we come to discuss the impedi- 
 ment of Impotence, that those persons of mature years who 
 lack the capabilities on which the matrimonial connection 
 depends, are, for this reason, disqualified to contract perfect 
 marriage : so, according to the leading doctrine of this chapter, 
 are boys and girls whose physical natures are not sufficiently 
 mature. The general proposition is, that Infants can marry ; ^ 
 but persons, whether older or younger than twenty-one, who 
 have no physical capacity, either because they want the ma- 
 turity which age alone brings, or because of some incurable 
 defect in the organism, cannot contract a marriage completely 
 valid ; while, on the other hand, they can find no refuge from 
 the consequences of a bad bargain in the general law of minority. 
 The case has been likened to the executory agreement of an 
 infant to purchase necessaries, on the one hand ; and the 
 executed agreement, on the other hand ; the former does not 
 bind him ; but, when executed by the delivery and acceptance 
 of the necessaries, the latter then binds him.- We shall see,^ 
 that the existence of a physical defect in persons of mature 
 years is a fact to be proved in each particular instance ; but 
 the age of puberty for matrimonial purposes is, at the common 
 law, fixed at fourteen in males and twelve in females.^ This 
 age is termed the age of consent, and Littleton calls it also 
 " the age of discretion " ; ^ while Ayliffe, in a more exalted 
 strain, praises the infantile capacity of fourteen and twelve 
 thus : " This is the age of persons, which the law has deemed 
 capable of advice and understanding, which ought to be prin- 
 cipally regarded in the business of matrimony, because so 
 many inconveniences may flow from an indiscreet marriage ! " ^ 
 
 1 Gavin v. Burton, 8 Ind. 69. years the man and the woman are not 
 
 ^ Pool V. Pratt, 1 D. Chip. 252. only presumed to be of discretion and 
 
 3 Post, § 321 et seq. able to discern betwixt good and evil, 
 
 * Pool V. Pratt, supra ; 1 Bright Hus. and what is for their profit and dis- 
 
 & Wife, 4 ; Arnold v. Earle, 2 Lee, 529, profit ; but also to have natural and 
 
 6 Eng. Ee. 230 ; The Governor v. Ree- corporal ability to perform the duty of 
 
 tor, 10 Humph. 57; Parton u. Hervey, marriage, and in that respect are termed 
 
 1 Gray, 119 ; Rex v. Gordon, Russ. & puberes, as it were plants, now sending 
 
 Ky. 48. forth buds and flowers, apparent testi- 
 
 5 Co. Lit. 79 a, and Mr. Hargrave's monies of inward sap, and immediate 
 note. No. 43. messengers of approaching fruit." 
 
 6 Ayl. Parer. 361. Swinburne says; Swinb. Spous. 2d ed. 47. 
 " The reason is, that because at these 
 
 124 
 
CHAP. IX.] WANT OF AGE. § 146 
 
 § 145. Twelve and Fourteen, continued — Statutes extending 
 the Age — How construed. — 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.i 
 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.^ In some of the United States, it has 
 been altered by statute, and the age of consent fixed at later 
 periods of life. When a statute provided, " that male persons 
 of the age of eighteen years, and female persons of the age of 
 fourteen years, .... may be joined in marriage," this was 
 held, in Iowa, not to alter the common law ; but infants below 
 those ages, and within the common-law ages of consent, might 
 still marry .^ This is pretty plainly the true construction, since 
 the statute contains no negative words,* though the contrary 
 construction was rather assumed than decided in an Ohio case.* 
 More recently in North Carolina, a construction founded on a 
 like reason with the Iowa one was adopted. The statute pro- 
 viding, that " females under the age of fourteen and males 
 under the age of sixteen years, shall be incapable of contracting 
 marriage;" and parties having married under those ages, yet 
 continued to cohabit until they had passed those ages ; the 
 court held the marriage to be good, as at the common law. 
 Said Pearson, C. J. : "In the opinion of this court, the only 
 effect of the statute was to make sixteen instead of fourteen 
 years in respect to males, and fourteen instead of twelve 
 years in respect to females, the ages at which the parties 
 respectively were capable of making a perfect marriage, leaving 
 the rule of the common law unaltered in all other respects."® 
 In various other States, the common-law rule of fourteen and 
 twelve still prevails.'' 
 
 § 146. Proof of Actual Puberty. — The canon law seems not 
 to regard the ages of fourteen and twelve as conclusive, but to 
 
 1 1 Bl. Com. 436. 6 Nev. 63 ; People v. Slack, 15 Mich. 
 
 2 1 Fras. Dom. Rel. 42 ; Ferg. Consist. 193. 
 
 Law, 186, and App. 54 ; Eogers Ec. 4 Post, § 283. 
 
 Law, 2d ed. 632, note. ' s Shafher v. The State, 20 Ohio, 1. 
 
 3 Goodwin v. Thompson, 2 Greene, 8 Koonce v. Wallace, 7 Jones, N. C. 
 Iowa, 329. . See also Parton v. Hervey, 194, 196. And see "Williamson v. Wil- 
 1 Gray, 119 ; Bennett v. Smith, 21 liams, 3 Jones Eq. 446. 
 
 Barb. 439 ; Titzpatrick v. Fitzpatrick, ' Warwick v. Cooper, 5 Sneed, 659. 
 
 125 
 
§ 148 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 admit of the capacity or puberty of the party being proved by 
 actual inspection.! In a Scotch case it was attempted, on the 
 strength of considerable Scotch as well as canon-law authority, 
 to establish the same rule ; but the court refused, chiefly be- 
 cause of the inexpediency of permitting the indecent exami- 
 nations necessary in its application.^ The common law also 
 seems not to have yielded to the inquisitive disposition of the 
 canon law, but to have always contented itself with the simple 
 inquiry into the age of the parties.^ 
 
 §147. Age of Seven — Belo^w — Above — (Under Michigan 
 Statute, in the Note). — There is moreover another period to be 
 considered ; that of seven years, alike in male and female. If 
 either party to a marriage is below seven, it is a mere nullity.* 
 If both parties have arrived at seven, and either one of them is 
 below his or her age of consent, or, if both are,^ they may still 
 contract an inchoate or imperfect marriage. This marriage 
 they cannot avoid or annul, until the party 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.'' 
 
 § 148. At -what Age dissent — Hotv — Common Law of om: 
 States. — Judge Reeve observes : " In Eolle's Abr. 341, there is 
 
 1 Ayl. Parer. 247; 1 Fras. Dom. vision, not necessarily to be interpreted 
 Eel. 43 ; 1 Bl. Com. 436 ; Bowyer Com. by the common law. The majority of 
 46. the court held, that, where a man mar- 
 
 2 Johnston v. Ferrier, cited 1 Fras. ries a girl below the age of consent, 
 Dom. Rel. 43. fixed, by another statute, at sixteen, 
 
 ^ 1 Bl. Com. 436 ; Macpherson on the marriage is not void unless they 
 
 Infants, 168. See 1 Bishop Crim. Law, separate by mutual consent before she 
 
 5th ed. § 373. reaches that age, or unless she refuses 
 
 4 2 Bum Eo. Law, 434 ; 1 Bl. Com. to continue the cohabitation after reach- 
 436, note 11, by Chitty, &c. ; Swinb. ing that age. Campbell, J., dissented 
 Spousals, 20, 23. so far as to hold that, if they separated 
 
 5 Ante, § 143. before the age of consent, the consent 
 f Co. Lit. 79. to the separation need not be mutual. 
 ' Swinb. Spousals, 34. In Michigan, " We are all agreed," said Cooley, J., 
 
 there is the following statute : " In case " that, if the separation takes place 
 
 of a marriage solemnized when eitlier with consent of the party under age, 
 
 of the parties was under the age of and cohabitation is not resumed after 
 
 legal consent, if they shall separate such party attains the age of consent, 
 
 during such nonage, and not cohabit the marriage is thereby rendered null ; 
 
 together afterwards, . . . the marriage while we are not agreed that the party 
 
 shall be deemedvoidvvithout any decree who is of competent age can by his 
 
 of divorce or other legal process." And own act annul it." People v. Slack, 
 
 this is deemed to be an original pro- 15 Mich. 193, 199. 
 126 
 
CHAP. IX.J WANT OP AGE. ■ - § 149 
 
 a case where a wife, being only eleven years of age, did then dis- 
 agree 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 
 marriage continued valid ; for the first wife, when she dissented 
 to the marriage, had not arrived at the age when she could 
 dissent. A mai-riage of such tender age has not been heard of 
 in Connecticut, I believe ; and I cannot suppose that such mar- 
 riage would be considered valid." ^ But it is believed, that, 
 notwithstanding this intimation, the common law of our States 
 generally is, upon this subject, the same as upon most otliers, 
 precisely what it is, or rather was, at the time of the settlement 
 of this country, in England. In New York, a man having en- 
 tered into a marriage, with an infant under twelve years of age, 
 who immediately declared her ignorance of the nature and con- 
 sequences of the ceremony, and her dissent from the connec- 
 tion, — the Court of Chancery, on a bill filed 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 incurring a con- 
 tempt.^ Whether this proceeding be warranted by the English 
 practice or not, it can hardly be deemed an abnegation of the 
 common-law doctrine ; it is rather a method adopted to give it 
 a more equitable effect, since it does not deny the right of the 
 girl to affirm the marriage on reaching her age of consent. 
 
 § 149. Dissent, continued — Both bound or Neither. — Though 
 one of the parties has passed the age of consent, if the other 
 has not, either may avoid the marriage when the latter has 
 arrived at such age ; as, if a boy of fourteen marry a girl of 
 ten, he, at her age of twelve, as well as she, may disaffirm the 
 marriage. This, it is seen, is a different rule from what 
 governs in the ordinary contracts of minors. Tlie reason given 
 for the difference is, that, in matrimony, either both parties 
 must be bound, or an equal election of disagreement must be 
 open to both.3 And such, we may observe, is the general doc- 
 
 1 Eeeve Dom. Eel. 237. held, though without much discussion. 
 
 2 Aymar v. Roflf, 3 Johns. Ch. 49. Shafher v. The State, 20 Ohio, 1. 
 
 In Ohio, a doctrine diflfering somewhat ' Co. Lit. 79, and Mr. Hargrave's 
 from that stated in our text has been note. No. 45 ; 1 Bl. Com. 486 ; 1 East, 
 
 127 
 
§ 150 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 trine in marriage ; for, if a person disqualified to contract 
 matrimony marries another ignorant of the impediment, neither 
 of the parties is, as a general rule, bound, but either may take 
 advantage of the defect. Still, as one exception to this rule, — 
 and there are doubtless others, — it has probably never been 
 held, that a man can maintain a suit to have his marriage de- 
 clared void solely on the ground of his own fraud ; though his 
 own fraud would not prevent his maintaining the suit, if other 
 elements of nullity controlled the case.^ 
 
 § 150. How the Dissent expressed — And when. — The dis- 
 affirmance by the persons, married under the age of consent, 
 may be either with^ or without^ a judicial sentence: yet, 
 when it is by judicial sentence, the question seems somewhat 
 obscure, whether the court may proceed, or not, before the 
 parties have reached the respective ages of fourteen and 
 twelve.* But, in reason, when the parties are under those 
 ages, they should be excluded from maintaining the suit; 
 because they can no more consent to it than consent to the 
 disaffirmance of the marriage without suit ; whatever others, 
 having the right to control their marriages, might do.^ When 
 both have attained the age of consent, if they then affirm 
 the marriage, it is ever afterward binding, and no new cere- 
 mony is required.*" A very obvious mode of affirming is by 
 continuing to cohabit,'^ or by sexual intercourse ; and the same 
 
 P. C. 468 ; Godol. Ab. 507 ; Gibs. Cod. i Post, § 300 ; Miles v. Chilton, 1 
 
 423. The canons of Richard, who Robertson, 684. 
 
 succeeded Thomas Becket in the see ^ Gibs. Cod. 446 ; 2 Bum Ec. Law, 
 
 of Canterbtiry (a. d. 1175, 18th canon), 500 ; Sir George Hay, in Harford v. 
 
 enjoin, in conformity with the decrees Morris, 2 Hag. Con. 423, 4 Eng. Ec. 
 
 of Pope Nicholas, that " marriage is null 575, 577. 
 
 without the consent of both parties. They ' Co. Lit. 79 b; Burn, supra, p. 435; 
 
 who marry boys and girls do nothing, 1 Bl. Com. 436. 
 
 unlSss they consent after they come to * Compare Co. Lit. 79 with Gibs, 
 
 years of discretion. Therefore we for- Cod. 446, followed by Burn, as abore 
 
 bid the conjunction of those who hare cited, Aymar v. Rolf, 3 Johns. Ch. 49; 
 
 not both attained the legal and canoni- ante, § 149. 
 
 cal age, unless there be urgent neces- 5 But gge on this subject Aymar v. 
 
 sity for the good of peace." Vide the Rolf, 3 Johns. Ch. 49 ; ante, § 148. 
 same injunction repeated in the Consti- * Co. Lit. 79 ; 1 Bl. Com. ut supra ; 
 
 tutions of Edmund, Archbishop of Koonce v. Wallace, 7 Jones, N. C. 194 ; 
 
 Canterbury, 1236. Johnson's Canons, ante, § 145. 
 
 vol. 2 ; Rogers Ec. Law, 2d ed. 632. ^ 2 Dane Ab. 301 ; Coleman's Case, 
 
 See 2 Burn Ec. Law, 434 ; post, § 151. 6 N. Y. City Hall Recorder, 3. 
 128 
 
CHAP. IX.J WANT OP AGE. § 151 
 
 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, resting on a different reason, prevails, 
 from what governs in the transformation of espousals per verba 
 defuturo into matrimony, where no familiarities, short of the 
 carnal act, will suffice.^ It has been said also, that, when the 
 parties continue to cohabit as husband and wife after they 
 pass the age of consent, this amounts to an affirmance of the 
 marriage, even though, by parol or in writing, they disagree,, 
 unless the disagreement is made before the ordinary ; ^ which 
 expression, translated into American law-English, probably 
 means, unless the disagreement is afiirmed by the judgment of 
 a judicial tribunal, or is otherwise made matter of judicial 
 record. 
 
 § 151. Do'wer — Nine Years of Age — Seven — Four. — The 
 husband dying admits the wife to her dower, if, at the time of 
 his death, she has attained the age of nine years ; * "of what 
 age soever," adds Lord Coke, " her husband be, although he 
 be but four years old." ^ But the latter clause of this propo- 
 sition, quoted from Coke, appears inconsistent with the doc- 
 trine before stated,^ on the authority of Burn and others, that 
 the marriage is absolutely void unless both parties are at least 
 seven years old ; for surely dower cannot rest on a completely 
 void marriage. Looking at this question in the light of prin- 
 ciple, if we assume the correctness of the doctrine which denies 
 all capacity for marriage to boys and girls below seven, the 
 result must follow, that, while one of the parties is under 
 seven, the marriage is totally null, wliatever 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 
 be not a husband, the girl, lacking a husband, cannot be a 
 wife ; and, if the marriage is null as to the child four years 
 old, it must be so as to the more mature- party of nine years. 
 Yet when the husband has attained the age of seven, nine 
 is in law a woman's age " to deserve dower." ^ If she is 
 
 1 Ayl. Parer. 250. 5 Co. Lit. 33 a. 
 
 2 Swinb. Spousals, 27, 28, 40, 228. 6 Ante, § 147. 
 
 3 Com. Dig. Baron & Feme, B. 5; ^ Ante, § 149. 
 Hubback on Succession, 272. 8 Co. Lit. 78 b. 
 
 i Co. Lit. 786 ; Swinb. Spousals, 28. 
 
 VOL. I. 9 129 
 
§ 153 MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK III. 
 
 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 slie was not dowable abso- 
 lutely, yet she was conditionally, that is, dowable if she should 
 reach the age of nine before the death of her husband.^ 
 
 §152. Whether the Children legitimate. — The legitimacy of 
 the children of these inchoate marriages depends, perhaps, on 
 another principle. Though a child is born in wedlock, he is 
 illegitimate when the husband can be shown not to be the 
 father ; ^ " as, if the husband be but eight years old, or under 
 the age of procreation." ^ And probably, whenever the hus- 
 band is under fourteen, he is to be presumed, primd facie at 
 least, or even conclusively, incapable of becoming a parent.* 
 
 § 153. Void or Voidable — Inchoate. — This impediment of 
 want of age is usually treated of as rendering the marriage 
 void, in distinction from voidable.^ We have seen that it is 
 truly void when either of the parties is below seven years.^ 
 But when both are above seven, it is in fact voidable only ; ^ 
 and it appears not to differ materially from the marriages 
 known in the ecclesiastical law as voidable, on account of 
 canonical impediments ; except that the latter can only be 
 avoided by judicial sentence, while the former may, by the 
 parties themselves, without sentence. And AylifFe says, that a 
 marriage while the parties are under the age of fourteen in 
 the man, and twelve in the woman, is " not void, but pnly 
 voidable ; " ^ and so, it would seem, this marriage should 
 properly be described ; though no objection lies to the language 
 of Lord Coke, who calls it an " inchoate and imperfect mar- 
 riage." ^ 
 
 1 Co. Lit. 33 a. ; post, 546-548. « Elliott v. Gurr, 2 Phillim. 16, 1 
 
 2 Lomax v. Holmden, 2 Stra. 940 ; Eng. Ec. 166, 168 ; ante, § 105, 114. 
 Foxcroft's Case, 1 Eol. Ab. 359 ; St. « Ante, § 147. 
 
 George v. St. Margaret, 1 Salk. 123 ; ^ Contra, Shafher v. The State, 20 
 
 Piatt V. Powles, 2 M. & S. 65, 68 ; Kex Oiiio, 1. 
 
 V. Luffe, 8 East, 198, 200. 8 Ayl. Parer. 361. 
 
 8 Co. Lit. 244 a. 9 Co. Lit. 33 a; Warwick v. Cooper, 
 
 4 1 Woodd. Lect. 284, and note. 5 Sneed, 659. 
 
 130 
 
CHAP. X.] SLAVERY AND EMANCIPATION. § 155 
 
 CHAPTER X. 
 
 THE IMPEDIMENT OP SLAVERY AND THE EFFECT OP EMANCIPATION. 
 
 § 153 a. General Vieiv — Scope of the Discussion. — Though 
 slavery has come to an end in this country, yet there are 
 living multitudes of persons who were married as slaves, and 
 who have continued to cohabit as husband and wife since 
 emancipation. It becomes, therefore, even more important 
 than it was before'emancipation to know what was the law of 
 slave marriages, and especially to ascertain what is the effect 
 of the emancipation of the parties, and of their subsequent 
 cohabitation, as to the matrimonial status. The author will, 
 therefore, continue in this edition the substantial parts of the 
 chapter written on the impediment of slavery wiiile the institu- 
 tion existed in a part of our States, enlarged by such matter 
 as has arisen out of the new condition of things. 
 
 § 154. What the Law of Slavery with us. — The law of 
 slavery, in our slave States, was not the law of English serf- 
 dom, as it used to exist in the mother country ; but it was a 
 law of our own, not derived from the English common law, 
 yet taking its form and dimensions more from the Roman law 
 of slavery than from any other previously known system.^ 
 Yet, while the law of slavery was substantially the same in all 
 the slave States, there were some differences, and especially 
 was the institution milder in the more northern than in the 
 more southern of these States. According to the law, how- 
 ever, of all the States in which slavery existed, the slave was 
 deemed to sustain the twofold character of a person and 
 property.^ 
 
 § 155. Slave Marriages in New York — Massachusetts — Chil- 
 dren — (Connecticut, in the Note). — There was, during the 
 
 1 Pirate v. Dalby, 1 Dall. 167, 169 ; son v. Bulloch, 12 Conn. 38 ; Charlotte 
 
 Neal u. Farmer, 9 Ga. 555; Bynum v, v. Chouteau, 21 Misso. 690; 1 Bishop 
 
 Bostick, 4 Des. 266, 267 ; Tims v. Pot- Crim. Law, 2d ed. § 732. 
 ter, Martin. N. C. 22, 24 ; Mahoney v. 2 1 Bishop Crim. Law, 2d ed. § 729, 
 
 Ashton, 4 Har. & McH. 295, 803 ; Jack- 730; 4th ed. § 779, 780. 
 
 131 
 
§ 156 MARRIAGE IMPEEPBCTLT CONSTITUTED. [bOOK III. 
 
 existence of slavery in New York, a statute providing that all 
 marriages where one or both of the parties are slaves, are equally- 
 valid as though the parties were free, and their issue is declared 
 to be legitimate. Under this statute it was held, that when a 
 slave man and a free woman intermarried, the children born of 
 the marriage were to be deemed the free and legitimate children 
 of the woman. 1 Likewise in Massachusetts, where, as Mr. 
 Gray observes, " previously to the adoption of the State Con- 
 stitution 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," " there was a statute providing, that " no 
 master shall unreasonably deny marriage to his negro with 
 one of the same nation ; any law, usage, or custom to the 
 contrary notwithstanding." ^ And either in consequence of 
 this provision, or of judicial adjudication upon the question as 
 one of common law, slave marriages were deemed to be valid, 
 and the rights of divorce were extended to slaves, the same 
 as to freemen. Thus, as Mr. Gray also observes, " in 1745, a 
 negro slave obtained from the governor and council " — tlie 
 tribunal which then had the jurisdiction over divorces — "a 
 divorce for his wife's adultery with a white man."^ But these 
 decisions in Massachusetts and New York, resting as they do 
 on special statutes, and pronounced in States where slavery 
 was never precisely what it was in our more southern States, 
 shed no light upon the question of the marital capacity^ if the 
 expression be allowable, of slaves in the latter States. 
 
 § 156. In other Slave states — Slave Marriages Illegal, — There- 
 fore, in those States in which general emancipation has recently 
 taken place, no doctrine of the sort just stated has prevailed, 
 as matter either of common or of statutory law. On the other 
 hand, it was the establislied law, that the marriages of slaves 
 were to be deemed null and void.^ The reason of this doc- 
 
 1 Marbletown v. Kingston, 20 Johns, woman, with the consent of his master, 
 !• he was emancipated; for his master 
 
 2 Note to Oliver v. Sale, Quincy, 29. had suffered him to contract a relation 
 5 Prov. Stat, of Oct. 1705, c. 19, § 2. inconsistent with a state of slavery. 
 
 Ancient Charters, 748. The right and duties of a husband are 
 
 4 Note to Oliver v. Sale, supra, incompatible with a state of slavery." 
 
 Reeve, speaking of the law of Con- Eeeve Dom. Rel. 341. 
 necticut wlaen slavery prevailed there, 5 Smith v. The State, 9 Ala. 990 ; 
 
 observes : " If a slave married a free Howard v. Howard, 6 Jones, N. C. 236; 
 132 
 
CHAP. X.] SLAVERY AND EMANCIPATION. § 158 
 
 trine seems to have been twofold ; first, there was in the slave, 
 as he was known to the law, no such freedom of will as is 
 required to pass the matrimonial consent ; secondly, the duties 
 of husband or wife are incompatible with the duties which the 
 slave owed to the master. There was indeed another reason ; 
 namely, that, since the master owned the slave as property, 
 all the acquisitions of the slave accrued to the master as the 
 master's acquisitions. But this other reason is not good ; 
 because it was never known that a slave's wife was made by 
 law to accrue to the master as the master's acquisition ; in 
 other words, as the master's wife ; or the slave-woman's hus- 
 band, to accrue to the mistress, as her husband. 
 
 § 157. Slave Marriages Illegal, continued. — The two proposi- 
 tions upon which the legal incapacity of slaves to enter into 
 matrimony rested, have been stated by learned judges as fol- 
 lows : " Marriage is based upon contract ; consequently the 
 relation of ' man and wife ' cannot 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." ^ 
 Said another learned judge : " 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 siipposed 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 recognizedt, 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." ^ 
 
 § 158. Continued. — Let US, therefore, consider these two 
 reasons, in order, not to bring into question the doctrine itself, 
 for plainly this was well settled, but to ascertain what is the 
 status, as to matrimony, of the slaves upon their becoming 
 
 MaUnda v. Gardner, 24 Ala. 719 ; The The State v. Taylor, PhilUps, 508 ; Es- 
 State u. Samuel, 2 Dev. & Bat. 177 ; till v. Rogers, 1 Bush, 62. 
 Commonwealth v. Clements, 6 Binu. l Pearson, C. J., in Howard v. How- 
 206, 211 ; Timmins v. Lacy, 30 Texas, ard, 6 Jones, N. C. 235, 236 
 115; Johnson U.Johnson, 45 Misso. 595; 2 Goldthwaite, J., in Malinda o. 
 
 Gardner, 24 Ala. 719, 727. 
 
 133 
 
§ 159 MA.KEIAGE IMPERFECTLT CONSTITUTED. [bOOK III. 
 
 free. The first reason was, that the slave had no power of 
 consent or contract. We might well doubt the doctrine itself, 
 if this was the only reason upon which it rested. The law of 
 the slave States held the slaves to be capable of the utmost 
 freedom of will, when the question related to their capacity 
 for crime ; neither the general constraint of slavery, nor even 
 the direct command of the master, having ever been received, 
 when the slave was indicted for a crime, as an excuse freeing 
 him from legal responsibility for the act.^ And it would be 
 strange that, against the master's consent, the slave should be 
 capable of binding him to the consequences flowing from the 
 slave's crime, such as the loss of the slave's services, or of 
 the slave himself, by reason of his being imprisoned or put to 
 death for the crime ; and 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 
 incapable, even with the master's permission, of exercising the 
 freedom of will which forms the basis of the consent to matri- 
 mony. But the second proposition, namely, that the duties 
 of husband or wife are incompatible with the duties of a slave, 
 is evidently sound in law,^ and upon this it is that the doctrine 
 which denies to slaves the power of matrimony principally 
 rests. 
 
 §159. Emancipation. — When, however, the slave man and 
 the slave woman are both emancipated, they are no longer 
 destitute of the legal capacity to perform those duties, toward 
 each other, which the marriage vow enjoins. And in a Louis- 
 iana case it was held, during slavery, that, upon emancipation, 
 the marriage, which was before invalid, became good. 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 connec- 
 tion as that of marriage cannot be doubted ; but, whilst in a 
 state of slavery, it cannot produce any civil effect, because 
 
 1 1 Bishop Crim. Law, 2d ed. § 736 ; >■ And see ante, § 155, note. 
 
 4th ed. § 786. 
 
 134 
 
CHAP. X.] SLAVERY AND EMANCIPATION. § 161 
 
 slaves are deprived of all civil rights. Emancipation gives to 
 the slave his civil rights ; and a contract of marriage, legal 
 and valid by the consent of the master and moral assent of the 
 slave, from the moment of freedom, although dormant during 
 the slavery, produces all effects wliich result from such con- 
 tract among free persons." ^ Whether, in the facts of this 
 case, there had been cohabitation subsequent to emancipation, 
 the report does not disclose. 
 
 § 160. Continued. — In a North Carolina case, this Louisiana 
 decision was denied to be good law, and the opposite doctrine 
 was maintained. Said Pearson, C. J. : " Our attention was 
 called to Girod v. Lewis, 1 Cond. La. 605 [being the same case 
 which is cited in the last section] , where it is held that ' a con- 
 tract of marriage, legal and valid by the consent of the master 
 and moral assent of the slave, from the moment of freedom, 
 although dormant during the slavery, produces all the effects 
 which result from such contracts among free persons.' No 
 authority is cited, and no reason is given for the decision, ex- 
 cept the suggestion, that the marriage, being dormant during 
 the slavery, is endowed with full energy from the moment of 
 freedom. 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 affected by the influence of religion, and the 
 mystery of its supposed 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." ^ 
 
 § 161. Continued. — The case in which these observations by 
 the learned North Carolina judge occur, is the following : A 
 male and female slave intermarried, with the consent of the 
 owners, in the form usual among slaves ; afterward the male 
 slave was emancipated, and purchased his wife ; they then had 
 born to them one child ; he next emancipated the female slave, 
 and, the two still living as husband and wife, but without any 
 further ceremony passing between them, they had several other 
 children. It was held, that neither the first nor the others of 
 
 1 Girod V. Lewis, 6 Mart. La. 559, 2 Howard v. Howard, 6 Jones, N. C. 
 opinion by Mattiiews, J. 235. 
 
 135 
 
§ 162 MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK III. 
 
 these children were legitimate, so as to take as tenants in com- 
 mon with legitimate children of the father by a second mar- 
 riage, celebrated after the death of the supposed first wife. 
 Said tlie judge : " The emancipation of the father could not 
 draw after it the prior relation [that is, make the parties legally 
 husband and wife], because the mother was not then free, and, 
 in fact, afterwards became his slave. So the relation was not 
 connected with the status of the parties in a way to follow as 
 an incident. Suppose, after being free, the father had married 
 another woman, could he have been convicted of bigamy, on the 
 ground that a woman who was his slave was his wife ? Or 
 after both were freed, would the penalty of the law have at- 
 tached, if either had married a third person, living the other ? 
 [It would plainly have attached, if the marriage, which duriyg 
 slavery was invalid, became valid upon emancipation.] Cer- 
 tainly not ; because the averment of a prior 'lawful marriage 
 could not be supported [whether this averment could be sup- 
 ported or not, would depend upon whether or not the marriage, 
 which, during slavery, could not be valid because the' parties 
 were not in a legal situation to discharge the duties of husband 
 and wife to one another, became valid upon the disability being 
 removed by emancipation] ; and yet, if the marriage followed 
 the emancipation as an incident, it would present an instance 
 of a marriage relation which either is at liberty to dissolve at 
 pleasure." ^ 
 
 § 162. Continued. — In the facts of this North Carolina case, 
 there is involved the particular matter upon which the writer 
 of these volumes deems that the decision, in all such cases, 
 ought, in principle, to turn. If, after the emancipation, the 
 parties live together as husband and wife ; and if, before eman- 
 cipation, they were married in the form which either usage or 
 law had established for the marriage of slaves ; this subsequent, 
 mutual acknowledgment of each other as husband and wife 
 should be held to complete the act of matrimony, so as to make 
 them lawfully and fully married from the time at which this 
 subsequent living together commenced. In those localities in 
 which mutual consent of parties to be husband and wife con- 
 stitutes of itself, without any superadded forms, perfect matri- 
 1 Howard v. Howard, 6 Jones, N. C. 236. 
 
 136 
 
CHAP. X.J SLAVERY AND EMANCIPATION. § 162 
 
 mony, the facts thus indicated would seem to be sufficient 
 without any aid from what took place between them during sla- 
 very. And in those localities where a superadded ceremony is 
 necessary, there seems to be no reason why the ceremony 
 which took place during slavery — suppose it was not, or sup- 
 pose it was, the same ceremony which the law made necessary 
 to constitute marriage between whites, still it was the ceremony 
 which the law of usage had established for the blacks — should 
 not be deemed to combine with the consent which passed be- 
 tween the parties after emancipation, so as to make the nup- 
 tials complete. We have seen,^ that such is the law of marriages 
 celebrated during a temporary insanity of the parties, and cele- 
 brated where the parties were too young to pass the consent 
 which constitutes complete matrimony ; and in future pages 
 we shall see, that the same rule applies to cases of fraud, of 
 impotence, and perhaps of some other impediments. Probably, 
 where a man who has a wife living marries another, but the 
 lawful wife afterward dies, this rule does not apply, so as to 
 connect the invalid ceremony with the consent which the sub- 
 sequent cohabitation, under the marriage' originally void, im- 
 plies. But assuming, at least for the argument, that the rule 
 does not apply to such a case, we shall readily see that the case 
 differs widely from the marriage of slaves. The man, in mar- 
 rying a second time while a former marriage stood in full force, 
 committed a high offence against the law of morality, and a 
 felony against the law which is written in the statutes of the 
 State. But the slave did a moral act which, though not valid 
 in law, was no violation of legal duty. " 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 consequences must flow from the 
 municipal law. This does not recognize, for any purpose what- 
 ever, the marriages of slaves." ^ The distinction thus drawn 
 in this section, between giving a subsequent validity to an in- 
 valid act, resting upon the question whether the act was a 
 
 1 Ante, § 139-142, 149, 150, 153. might be witnesses for and against each 
 
 2 Smith M. The State, 9 Ala. 990, other, s. p. The State u. Samuel, 2 
 996. Consequently it was held, that Dev. & Bat. 177. 
 
 riaves cohabiting as husband and wife 
 
 13T 
 
§ 163 a MARRIAGE IMPEKPECTLY CONSTITUTED. [BOOK III. 
 
 moral and lawful cue, or was immoral and unlawful, runs 
 through the entire field of our law.' 
 
 §163. Continued. — But where there is no confirmation of 
 the marriage after emancipation, either by cohabitation or 
 otherwise (and it would be reasonable to require the confirma- 
 tion to be by cohabitation), it would come within the reason of 
 the law, as it will be seen to run through all these chapters, to 
 hold the parties free from matrimonial bands. Moreover, 
 according to usage in all places where slavery existed in our 
 country, the marriages between slaves were dissolvable without 
 judicial sentence, whenever the parties were permanently 
 separated. Even South Carolina, the State which prided 
 herself, as we have seeu,^ upon never suffering divorces to pass 
 between white people, did not fail to appreciate the thrift which 
 would follow from allowing practical divorces among those 
 blacks who were separated too far to render convenient the 
 begetting of slave children. Now, if the law takes any cogniz- 
 ance of these slave marriages, it must take equal cognizance of 
 these slave divorces. And who knows that a divorce has not 
 taken place, when the parties, after becoming free, nevermore 
 recognize each other as husband and wife ? 
 
 § 163 a. ConUaued. — Late Views. — Thus, in substance, 
 the discussion stood in the fourth edition of this work, pub- 
 lished during slavery. Since the general emancipation of the 
 slaves in all the slaveholding States took place, this question 
 has been several times agitated before the courts ; and, in all 
 or nearly all the cases, the foregoing views of the author have 
 been adopted. In many or most of those States also, statutes 
 have been passed aiding this result. There are some Ken- 
 tucky cases from which it would seem, that the courts of this 
 State — in which, it may be observed, a formal ceremony is 
 required by the general statutes to make any marriage good — 
 do not deem the former marriages of slaves capable of being 
 confirmed, except by compliance with the act of the legislature 
 relating to them, or by a new marriage under the general law. 
 And when such a marriage is so confirmed, it takes effect for 
 general purposes only from the time when the confirming act is 
 
 1 And see ante, § 139-142. 2 Ante, § 38, 42, 43. 
 
 138 
 
CHAP. X.J SLAVERY AND EMANCIPATION. § 163 5 
 
 performed.! But if this siiould be found to be an exception to 
 the adoption of the foregoing views, it is the only one of which 
 the author is aware. Thus it has been adjudged in Tennessee, 
 that, if slave parties who before emancipation were in form 
 married conthiue after emancipation to cohabit as husband and 
 wife, this is a ratification of their invalid marriage ; then, if 
 the man marries another wife, he commits the crime of polyg- 
 amy .^ And in various other States, the same doctrine as to 
 the confirmation of the slave marriage by subsequent cohabita- 
 tion has been laid down by the courts.^ Thus, it is not forni- 
 cation for the parties to continue their cohabitation, without 
 further marriage formalities, after they are emancipated.* 
 Again, where a slave had two wives, and after his emancipa- 
 tion he continued to live with the second one, and acknowl- 
 edged her as his lawful wife, it was held that he not only 
 ratified the second slave marriage, but disaffirmed the first.^ 
 But if tlie parties have to some extent cohabited after emanci- 
 pation, yet repudiating the idea of marriage, and refusing to 
 be married, this, it appears, does not amount to an affirmance 
 of the slave marriage.® 
 
 § 163 h. The Children. — The question of the legitimacy of 
 the children of these slave marriages, since emancipation, is 
 perhaps more difficult. It is hard to adjudge them bastards, 
 while yet there are principles of the law which might seem at 
 the first view so to require. Yet the Alabama court pro- 
 nounced on this subject a decision which is to be commended 
 for its equity, while still it may not be found to violate fun- 
 damental principle. According to this decision, marriages 
 between slaves, and between free men of color and slave 
 women, were not, during the existence of slavery, illicit con- 
 nections, but were quasi marriages allowed by the law and 
 approved by the church. The children of such marriages were 
 not bastards, either at common law or by the statute law of 
 Alabama. Therefore when such children, after emancipation, 
 
 1 Estill V. Rogers, 1 Bush, 62 ; Stew- 3 Stikes v. Swanson, 44 Ala. 633 ; 
 art V. Munchandler, 2 Bush, 278. See and the remaining cases cited to this 
 The State v. Harris, 63 N. C. 1 ; Hamp- section. 
 
 ton V. The State, 45 Ala. 82. < The State v. Adams, 65 N. C. 537. 
 
 2 McReynolds v. The State, 5 Cold. 5 Johnson v. Johnson, 45 Misso. 595. 
 18. 6 The State v. Taylor, Phillips, 508. 
 
 139 
 
§ 163 b MABRIAGE mPEBFECTLT CONSTITUTED. [BOOK HI. 
 
 were elevated to citizenship, their heritable blood was restored. 
 Such children are, consequently, entitled to inherit the estate 
 of their father, a free person of color, who died prior to eman- 
 cipation, but whose estate remained in the hands of his admin- 
 istrator, and unclaimed by the State up to that date.^ This 
 decision was pronounced in 1870. In 1866, an adjudication 
 was made by a learned countv court judge in UlLnois, going 
 quite as far as this in favor of the ofi&pring, and perhaps 
 further. And as to the slave marriage itself, the broad doc- 
 trine is laid down, that it is good for all purposes upon eman- 
 cipation.^ When we reflect upon this doctrine, as to the chil- 
 dren, we shall see, that, during slavery, the status of bastardy 
 was as foreign to this institution as the status of legitimacy. 
 If a slave was not the legitimate offspring of his natural 
 parents who were living together iu the way of marriage, still 
 he was not a bastard. He had no foul or corrupt blood. The 
 simple fact was. that he had no status, as to this particular, 
 the one way or the other. The whole matter was a thing 
 having no relation whatever to his condition as a slave. After 
 emancipation, therefore, if the ordinary attributes of a freeman 
 are conferred on him, and he must consequently be held to be 
 either legitimate or illegitimate, no reason appears why he 
 should be thrust into the vile class rather than the other, when 
 his parents had done all which the circumstances would permit 
 to make him legitimate. 
 
 1 Stites r. Swanson, 44 Ala. 633. pamphlet entitled "TaUdity of Slave 
 According to a ilississippi decision. Marriages." According to the head- 
 which is perhaps iflnstratiTe of the note, " Henrr Jones, a negro slare, was 
 doctrine of the text, although a legacy married in Tennessee, by a justice of the 
 to a slare may hare been inTalid, at peace, to a colored woman the slave of 
 the date of the testator's death, by another master, with the consent of their 
 reason of the legatee's disability, such masters. They had one child while 
 legacy may be valid as a tmst in the in slavery, the finiit of such marriage, 
 hands of the executor. And if the called Matt. C. Jones — the mother 
 estate remains unsettled nntil the leg- died in slavery. Jones and Matt. C. 
 atee's disability is removed by eman- were afterwards emancipated. Held, 
 dpation, tlie trust may be enforced by after the death of Henry Jones, that 
 the courts. Hoover v. Brem, 43 Missis, snch marriage was not void : and that 
 603. Matt. C. was the legitimate son of 
 
 2 The decision is by Hon. James B. Henry .Jones, and, as snch, entitled to 
 Bradwell, and it was rendered in his inherit his estate : notwithstanding the 
 capacity of Probate Judge, of Cook fact that his parents were slaves at the 
 county, which includes the dty of time of their marriage and his birth." 
 Chicago. I have it before me in a, 
 
 140 
 
CHAP. XI.j FRAUD, ERROR, DURESS. § 166 
 
 CHAPTER XI. 
 
 FRAUD, ERROR, DURESS. 
 
 164. Introduction. 
 165-205. Fraud. 
 206-209. Error. 
 210-213. Duress. 
 214, 215. Some Principles Conjmon to tlie Tliree Impediments. 
 
 § 164. Nature and Scope of the Discussion — How divided. — 
 The three grounds of nullity, Fraud, Error, and Duress, — 
 deriving their significance severally from the fact that where 
 they occur the will is under a constraint, consequently the 
 consent which in form passes is no consent, — are so nearly 
 allied in their nature as to be best discussed in one chapter. 
 Still, we shall most conveniently treat of them separately in 
 part. We shall consider, I. Fraud; 11. Error; III. Duress; 
 IV. Some Principles Common to the Three Impediments. 
 
 I. Fraud, 
 
 § 165. DifBculties of the Subject — How treated heretofore in 
 this 'Work. — There is no topic relating to marriage and divorce 
 more difficult of treatment than this. The author freely 
 acknowledges that, while in the first edition of his work he 
 fully satisfied himself of the substantial correctness of the 
 doctrines laid down in all his other chapters, there was a doubt 
 over his mind with respect to this chapter. In the second and 
 third editions he strove to improve this chapter, still it did not 
 fully satisfy him. In the fourth edition he cast anew some 
 parts of the chapter, enlarged the whole, and introduced some 
 views which were not set down in the earlier editions. His 
 hope is, that this revised treatment of the subject will satisfy 
 his readers, as — he acknowledges with equal frankness as 
 before — it does himself. At the same time he will here add, 
 that, while the views of the judges often seem to lack clearness 
 in the discussion of this subject, there have been put forth 
 some judicial views, which, perhaps clearly enough, appear to 
 
 141 
 
§ 166 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK m. 
 
 be in conflict with doctrines which will be maintained in this 
 chapter. 
 
 § 166. Distinction whether Cohabitation has followed the Mar- 
 riage or not — General Doctrine. — A farther preliminary prop- 
 osition should be laid down ; namely, that in reason, speaking 
 now independently of authority, whatever of fraud, of error, or 
 duress will vitiate any other contract, should ordinarily be 
 received as sufficient to vitiate the mere marriage contract, 
 whether executory or executed, viewed as a thing separate from 
 the consummation which follows. Probably the authorities may 
 hold this proposition to be good as applied to the contract per 
 verba de futuro ; ^ but, however this may be, the dicta of the 
 judges generally, perhaps their decisions also, do not fully ac- 
 cord, as in reason thev should, with this proposition when applied 
 to that contract of present marriage which superinduces the 
 status. If the contract of present marriage is followed by the 
 parties living together as husband and wife, or even by copula 
 falling short of this, where the copula is not brought about by 
 any thing analogous to rape, a diflerent principle may in some 
 circumstances be involved. Especially if copula were allowed 
 after knowledge of the impediment had reached the mind of 
 the party allowing it, all objection on the ground of the impedi- 
 ment would ordinarily be waived thereby. . This is a distinction 
 of immense importance, as the question stands in principle;^ 
 and probably the not unfrequent failure of judges to take the 
 distinction is the main cause of the very confused state of the 
 law as it rests on the authorities. But the authorities are clear 
 to the general conclusion, that fraud, error, or duress may 
 render the marriage void.^ 
 
 1 See post, § 168. cance of it. Had it been, I can have 
 
 2 I might mention the case of Wier little doubt that this intelligent tribn- 
 f. Still, 31 Iowa, 107, in illustration of nal would hare decided the other way. 
 the observations in the text. There, In essence, the undertaking which the 
 in a case of what would be deemed very woman entered into nnder the pressure 
 gross fraud if the contract related to any of the fraud was, that she woidd become 
 other sabject, the court refused to set the man's wife ; but she nerer sub- 
 aade the marriage, on the usnal grounds mitted herself to be snch, having in- 
 as respects consummated marriages, stantly taken the alarm, and, I confess. 
 The fact appeared in the case, that I can discover no sufficient reason why 
 there had been no consummation and she should not have been released firom 
 no cohabitation, but the attention of her promise and its consequences. 
 
 the court was not called to the signifi- 3 2 Kent Com. 76 ; Harford i-. Morris, 
 
 142 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 168 
 
 § 167. Nature of the Fraud necessary — Character — Fortune, 
 &c. — When the question comes before a tribunal, whether a 
 particular contract is void by reason of a fraud shown to have 
 entered into its original constitution, many things may demand 
 consideration. Among these things, the nature of the contract 
 must be taken into the account ; for what would avoid one 
 kind of contract may not necessarily be sufficient to avoid 
 another. In that contract of marriage which forms the gate- 
 way to the status of marriage, 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 indeed generally from fraudulent 
 practices, in respect to the character, fortune, health, or the 
 like, does not render void what is done.^ To this conclusion 
 the authorities all conduct us, but different modes of stating 
 the reason for it have been adopted. Thus the qualities just 
 mentioned are sometimes said to be accidental, not going to the 
 essentials of the relation.^ And Lord Stowell, 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 tliat 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." * 
 
 § 168. Continued — "Why. — Among the reasons assigned for 
 
 2Hag.'Con.423, 4Eng.Ec. 575; Count- Sloan v. Kane, 10 How. N. Y. Pract. 
 
 ess of Portsmouth v. Earl of Portsmouth, 66. 
 
 1 Hag. Ec. 355, 3 Eng. Ec. 154 ; Jolly i Evans v. Evans, 1 Hag. Con. 35, 
 V. McGregor, 3 Wilson & Shaw, 85 ; 4 Eng. Ec. 310, 349 ; Scroggins v. Scrog- 
 Burtis V. Burti^ Hopkins, 557 ; Scott gins, 3 Dev. 535, 545. 
 
 V. Shufeldt, 5 Paige, 43 ; Perry v. Perry, ^ Ewing v. Wheatley, 2 Hag. Con. 
 
 2 Paige, 501; Ferlatw.Goj on, Hopkins, 175, 182, 183; Wakefield v. Mackay, 
 478 ; Clark v. Field, 13 Vt. 460 ; Hull 1 Phillim. 134, 137, note ; Clowes v. 
 V. HuU, 15 Jur. 710, 5 Eng. L. & Eq. Clowes, 3 Curt. Ec. 185, 191 ; 1 Eras. 
 589 ; Respublica v. Hevice, 3 Wheeler Dom. Rel. 230 ; Ruth. Inst. b. 1, c. 15, 
 Grim. Cas. 505 ; Dalrymple v. Dal- § 11, 12 ; 2 Kent Com. 77 ; Wier v. 
 rymple, 2 Hag. Con. 54, 104, 4 Eng. Still, 31 Iowa, 107. 
 
 Ec. 485 ; Keyes v. Keyes, 2 Post. N. H. 3 i Pras. Dom. Rel. 230. 
 553 ; Robertson v. Cole, 12 Texas, 356 ; * Wakefield v. Mackay, supra. 
 
 143 
 
§ 169 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 the doctrine of the last section, the former of the two men- 
 tioned appears to be the more worthy of regard ; namely, that 
 the nature of marriage forbids its validity to rest upon any 
 stipulations concerning these accidental qualities.^ If the man 
 should in words agree with the woman to be her husband only 
 on condition of her proving so rich, so virtuous, so wise, so 
 healthy, of such a standing in society; yet, if he afterward 
 celebrates the nuptials on her representing herself to possess 
 the stipulated qualities, while in truth she is destitute of them; 
 still, in such celebration, he says to her in effect and in law, " I 
 take you to be my wife, whether you have the qualities 
 or not, 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 contrary to good morals. The objects' of marriage, 
 rightly understood, transcend all considerations of the kind 
 mentioned ; and, if the purchaser 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 con- 
 templated, — 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 seem so far to stipulate concerning 
 the accidentals as to enable either to avoid the contract where 
 any fraud as to them has been discovered.^ Perhaps the rule 
 thus stated, applied to the executory contract, is well ; but, 
 applied to the executed contract, — meaning the contract 
 executed by consummation and cohabitation as well as by the 
 outward ceremony, — it would degrade a high and-holy relation 
 to a level with things of mere mercantile consideration. 
 
 § 169. Formal Marriage without Consummation, continued. — 
 These general views will assist us when we proceed now to 
 examine a few specific points. And in the first place, let us 
 
 1 Page on Div. 158. 2 gee Addison on Contracts, 580- 
 
 585 ; Chitty on Contracts, 538-541. 
 
 144 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 170 
 
 consider more minutely tlie proposition, tliat, wliere a marriage 
 has been brouglit about by fraud, it should be vacated if the 
 fraud was such as would lead a court of equity to vacate any 
 other contract, provided there has been no carnal consummation 
 of the marriage and no apparent cohabitation under it. This 
 proposition is one rather of legal reason than of adjudication. 
 Yet, in legal reason, it stands firm. There is no legal reason 
 possible to be assigned, why the mere pronouncing of the par- 
 ties husband and wife by a justice of the peace or a minister of 
 the gospel should make that valid which in its nature is no 
 contract, the will having been overcome by fraudulent pretences, 
 and not really assenting, if, without such formal pronouncing, 
 it would be held to be no contract. If the law took cognizance 
 of marriage in respect to some mysterious religious effects 
 produced by the words or benediction oif a priest, the result 
 might be legally otherwise. But in this country at least, prob- 
 ably in England also, the law takes no such cognizance. And 
 wliile in most of our States a marriage may be good without 
 any ceremony either religious or civil, requiring the presence 
 of any official person, there is believed to be no State in which, 
 though the presence of an official person may be required, a 
 mere civic personage, as a justice of the peace, is not just as 
 competent to perform the ceremony as an ecclesiastic. Indeed, 
 we have no ecclesiastical personages in this country, in any 
 sense recognized by the law ; because we have not now, neither 
 did we ever have, any established religion. 
 
 § 170. Continued — Kind and E!:stent of the Fraud. — What 
 fraud, in kind and amount, should be deemed sufficient to 
 vacate a marriage within the rule suggested in our last section, 
 we may not be able to state in a single sentence. There are, 
 in our books, decisions concerning the fraud wliich will serve 
 as a defence to an action for the breach of the promise of mar- 
 riage, and tliese perhaps may help us somewhat upon this 
 point. But these decisions are apt to turn also upon the ques- 
 tion of the plaintiff's conduct subsequently to the promise 
 made ; and therefore to this extent they are not in point. 
 Swinburne says, that one of the causes for which spousals 
 may be dissolved is, " whenas the pai'ty doth, after tlie contract 
 made, commit fornication, for the innocent party is at liberty 
 
 VOL. I. 10 145 
 
§ 171 MABEIAGE IMPEEFECTLT CONSTITUTED. [BOOK HI. 
 
 and may dissolve the contract." ^ But this cause, in most of 
 our States, would be a ground of divorce, yet it would nowhere 
 justify a decree pronouncing the marriage to have been origi- 
 nally void. If, however, a man enters into a promise of mar- 
 riage with a woman, and, before the marriage is celebrated, he 
 learns that at the' time of the promise she was unchaste, the 
 fact not having come to his knowledge before, this will justify 
 him in breaking the promise, and she can recover nothing 
 against him by reason of its breach.^ And to the writer of 
 these volumes it seems highly reasonable that the rule should 
 be the same, when, after marriage celebrated, but before con- 
 summation, the same fact is discovered, and the man brings 
 his suit to have the marriage declared void. But it has been 
 held, in an action for breach of promise, that proof of habitual 
 profanity of the plaintiff, and her threats to take the lives of 
 the defendant's connections, though unknown to the defendant 
 at the time when he made the promise, would not suffice in 
 bar of the action, though it would go to the mitigation of 
 damages. And the judge observed : " No case has been 
 found which sustains the principle, that a breach of the crim- 
 inal 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."^ And plainly, in a suit to 
 have the marriage set aside for the fraud, the plaintiff could 
 not avail himself of matter which, were he defendant in an 
 action for the breach of the promise, would be receivable only 
 in mitigation of the damages. 
 
 § 171. Continuea — Party's Knowledge of the Fraud. — The 
 foregoing propositions are introduced only to illustrate the 
 general doctrine ; they do not exhaust the subject. And it 
 should be observed, that, in these cases, as in all other cases of 
 fraud, if the party complaining knew of the matter of which he 
 complains at the time he made the promise, he can have no 
 relief. Indeed, in such a case, there is no fraud.* 
 
 1 Swinb. Spous. 2d ed. 237. And 7 Cow. 22; Berry v. Bakeman, 44 
 see Young v. Murphy, 3 Bing. N. C. Maine, 164 ; Bell u. Eaton, 28 Ind. 
 54, 3 Scott, 379, 2 Hodges, 144. 468. 
 
 2 Irving !). Greenwood, 1 Car. & P. 3 Berry v. Bakeman, supra. 
 
 360; Foote v. Hayne, 1 Car. & P. 545; < Butler v. Eschleman, 18 111. 44; 
 Young V. Murphy, supra ; Woodard v. Berry v. Bakeman, 44 Maine, 164. 
 Bellamy, 2 Root, 354; Willard v. Stone, 
 
 146 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 173 
 
 § 172. Continued — The Decisions. — Attention of Court not 
 called to this Distinction. — The books contain various cases in 
 which, according to the facts appearing, there had been no con- 
 summation of the marriage at the time when the suit was brought 
 to set it aside by reason of the fraud.^ But, as this particular 
 circumstance seems not, in these cases, to have impressed 
 itself upon the minds of the judges or generally to have 
 been adverted to by them, the writer deemed it not best to 
 separate these cases from the others to be considered in subse- 
 quent sections of this chapter. But in the subsequent sections 
 he will assume that the marriage has been consummated, 
 unless the contrary is in the particular instance stated. 
 
 § 173. Conspiracy — (Principal as to Fraud of Agent, in the 
 Note). — A species of fraud, sometimes met with, is conspiracy. 
 There seems to be ground 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 by fraudulent contriv- 
 ances procured the marriage of a female pauper, for the pur- 
 pose of changing her settlement to another parish, — the 
 conspiracy will not make the marriage invalid.^ Lord Stowell, 
 
 1 And see ante, § 166 and note. practised by one of the parties, and 
 
 - Rex V. Birmingliani, 8 B. & C. 29, fraud practised by a stranger, Clute 
 
 2 Man. & R. 230 ; Rex v. Tarant, 1 Bott v. Fitch, 25 Barb. 428 ; Killinger u. 
 
 F. L. 338, 2 Bott P. L. 68. See post, Reidenhauer, 6 S. & R. 531 ; Sumner 
 
 § 175. If an executed marriage were v. Murphy, 2 Hill, S. C. 488 ; Reichart 
 
 like any other contract, some doubt v. Castator, 5 Binn. 109 ; Osborne v. 
 
 might arise as to the correctness of this Moss, 7 Johns. 161 ; Findley v. Cooley, 
 
 proposition. For when one takes the 1 Blackf. 262; Hendricks v. Mount, 2 
 
 benefit of another's act, he necessarily Southard, 738 ; Harry v. Graham, 1 
 
 adopts the act entire, including the Dev. & Bat. 76 ; Swanzy u. Hunt, 2 
 
 fraud, if it be fraudulent. Mason v. Nott & McC. 211. In New York it 
 
 Crosby, 1 Woodb. & M. 342, 358, 358, was laid down, that a principal, who 
 
 and the cases there cited. But see undertakes to enforce a contract, is 
 
 Fisher v. Boody, 1 Curt. C. C. 206. If bound by the unauthorized representa- 
 
 one supplies another with the means of tions made by his agent to induce the 
 
 perpetrating a fraud in his name against contract, although such agent did not 
 
 a particular third person, and the fraud know at the time whether the repre- 
 
 is perpetrated by the means contem- sentations were true or false. And 
 
 plated, but against other parties, he is Comstook, C. J., referring to the facts 
 
 liable. Wilson v. Green, 25 Vt. 450. of the particular case in controversy, 
 
 Fraud between the parties to a suit, said : " There is no evidence that the 
 
 and a third person, to defeat the rights defendant authorized or knew of the 
 
 of creditors of the latter, cannot be alleged fraud committed by his agent 
 
 pleaded in bar to the action. Moore v. Davis, in negotiating the exchange of 
 
 Thompson, 6 Misso. 353. See further, lands. Nevertheless, he cannot enjoy 
 
 as to the distinction between fraud the fruits of the bargain without adopt- 
 
 147 
 
§ 174 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 however, apparently referring to cases in which the party pro- 
 ceeded 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 con- 
 spiracy. 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 cases occur to me 
 in which the co-operation of other persons to produce a mar- 
 riage 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 contract." ^ 
 
 § 174. Continued. — If we look at this question of marriage 
 effected by a fraudulent conspiracy, in the light of principle, 
 we shall draw the following distinctions When the marriage is 
 the voluntary act of the parties to it, pl-oceeding from volun- 
 tary 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 a perfect marriage, as perfect as 
 any possibly can be.N But if one of them was cognizant of the 
 
 ing all the instrumentalities employed tract a marriage with her, after due 
 by the agent in bringing it to a con- publication of banns in a parish church, 
 summation. If an agent defrauds the to which both are strangers ; I say the 
 person with whom he is dealing, the strongest case you could establish, of 
 principal, not haying authorized or par- the most dehberate plot, leading to a 
 ticipated in the wrong, may no doubt marriage the most unseemly in all dis- 
 rescind, when he discovers the fraud, proportions of rank, of fortune, of habits 
 on the terms of making complete resti- of life, and even of age itself, would 
 tution. But so long as he retains the not enable this court to release him 
 benefits of the dealing he cannot claim from chains, which, though forged by 
 immunity on the ground that the fraud others, he had riveted on himself. If 
 was committed by his agent and not he is capable of consent, and has con- 
 by himself." Bennett v. Judson, 21 sented, the law does not ask how the 
 N. Y. 238, 239. consent has been induced. His own 
 i Salhvan v. Sullivan, 2_Hag:;_Con. consent, however procured, is his own 
 /, 238, 248. But further on,' in the same act, and be must impute all the conse- 
 case, p. 247, this learned judge ob- quences resulting from it, either to 
 served : " Suppose a young man of himself or to others whose happiness 
 sixteen, in the first bloom of youth, the he ought to have consulted, to his own 
 representative of a noble family, and responsibility for that consent. The 
 the inheritor of a splendid fortune ; law looks no further back." See also, 
 suppose that he is induced, by persons on this subject, Rex v. MinshuU, 1 Nev. 
 connected with a female in all respects & M. 277. 
 unworthy of such an alliance, to con- 
 
 148 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 175 
 
 fraud, and so voluntarily availed himself of it, wlietlier 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. 
 
 § 175. Continued. — The distinction suggested in the last 
 section enables us to see how the following case was correctly 
 decided ; while, if the defendant had not been cognizant of the 
 fraud, the result would have been the otlier way ; unless, 
 indeed, the duress alleged, or want of mental capacity in the 
 plaintiff, had been established to tlie satisfaction of the court. 
 The case arose in Vermont, being a suit brought by the woman 
 to have her marriage declared void ; and the opinion, delivered 
 by Redfield, C. J., leading to the decree sought, sufficiently 
 explains the facts. " We are satisfied," said he, " that the 
 form of marriage 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 changing the settlement of the petitioner ; and 
 that to effect this, they promised Wyethe [tlie husband] $100, 
 and paid him $60 ; tiiat his purpose was not to contract, in 
 good faith,* a marriage, but to get money, and revenge an 
 imaginary grievance against Middlesex, and abandon the 
 petitioner, wliich he did in about three weeks. She is a crip- 
 ple, feeble both in body and mind, and was wholly at the 
 disposal of those who had her in charge. \ It is difficult to lay 
 down any general rule in regard to the precise character 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 
 cohabitation, 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)ca part of the attempted vil- 
 lany. 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 tlie conspirators of the 
 wages of tlieir iniquity, and be of good example to others. 
 We are not satisfied there was any such duress in the case as to 
 
 149 
 
§ 176 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 justify a decree of nullity. But one of the chief actors testifies 
 that he told the petitioner the 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 impossible 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," i 
 Perhaps it is material further to consider, in looking into this 
 case, that the defendant never intended real matrimony, though 
 he went through the form of a marriage ; and that, therefore, 
 certain principles, to be considered in another chapter, concern- 
 ing the forms of marriage where the intent to marry does not 
 exist,^ operate in conjunction with the doctrine of fraud treated 
 of in this chapter. 
 
 § 176. Continued. — If a man and woman combine to 
 marry each other for the purpose of injuring third persons in 
 their property interests, this combination does not render the 
 marriage void as against those third persons. The relation 
 assumed being agreeable to the parties, it cannot be interfered 
 with by others ; neither can others, whatever the motives 
 prompting to it, avoid any of the collateral consequences to 
 themselves which arise legally out of the relation. Therefore 
 when a widow, having a property interest terminable with 
 her widowhood, which interest was levied on by her creditors, 
 married a poor drunken man to defeat the levy and cause the 
 estate to become vested immediately in her children, she not 
 intending to cohabit, and never cohabiting in fact, with this 
 man, the court held, that her creditor could object neither to 
 the marriage nor to its consequences. Said McKinney, J. : 
 " If a marriage may be annulled for fraud, it must be such 
 fraud as operates upon one or other of the immediate parties 
 to the contract, and has the legal effect of vitiating the con- 
 tract between the parties, ah initio's But, as respects stran- 
 , gers, fraud cannot be predicated of a contract which the 
 immediate parties thereto may lawfully enter into, which no 
 principle of municipal law forbids, or can restrain the cousum- 
 
 1 Barnes v. Wyethe, 28 Vt. 41. 2 Post, § 233 et seq. 
 
 150 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 178 
 
 mation of." ^ j^Still, we may observe, that, if neither the man 
 nor the woman meant ever to cohabit as husband and wife, or 
 to have any sexual connection, at the time of going through 
 with a form of marriage, the form itself would seem to be a 
 mere idle ceremony, and not to superinduce the marriage 
 status.^ 
 
 § 177. The statutes, how construed. — The question of the 
 construction of those statutes which authorize decrees of 
 nullity for the cause of fraud, is of the same class with several 
 others discussed in previous sections.^ It will be alluded to 
 also, incidentally, in the next section. It may be said, in 
 general terms, that such statutes are to be construed, where 
 their provisions lack such specific words as would plainly indi- 
 cate a different construction, as simply giving to the court a 
 jurisdiction to grant divorces for fraud, in those cases only 
 which, according to the principles of our unwritten law on the 
 subject, will authorize such divorces. At the same time it 
 occurs to the author to suggest, that, while we should thus 
 recur to the principles of our unwritten law, a court might, 
 considering the general course of public sentiment, and the 
 progress of this department of our jurisprudence, interpose 
 with its decree, though the judge should doubt, or more than 
 doubt, whether an English ecclesiastical tribunal would, at the 
 time of the settlement of this country, have rendered the like 
 relief under the pressure of the same facts.* 
 
 § 178. Continued — "Fraudulent Contract" — Marriage of One 
 arrested for Bastardy — (^Impotence — Canonical Impediments, &c., 
 in the Note). — The Connecticut court, in seeking a construction 
 for the statute of that State, which allowed divorce for " fraudu- 
 lent contract," made the following just observations : " The 
 phrase fraudulent contract, in common parlance, admits of 
 great latitude of construction, and will include all those decep- 
 tive acts to which the sexes too frequently have recourse, with 
 a view to obtain what they consider an advantageous marriage 
 connection ; by setting off their persons, characters, tempers, 
 circumstances, and connections in a too favorable light ; or by 
 
 1 McKinney v. Clarke, 2 Swan, 3 Ante, § 71, 90, 96, 120, 137, 145. 
 Tenn. 321, 325. * And see Reynold? v. Reynolds, 3 
 
 2 Post, § 243-245. Allen, 605. 
 
 151 
 
§ 178 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 professions of ardent affection, which they either may not feel, 
 or not in a degree equal to what they profess. These acts, 
 though they meet with various degrees of indulgence, accord- 
 ing to circumstances, are still inconsistent with truth and 
 sincerity ; 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 contract, which, in its original design and institu- 
 tion, 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 legis- 
 lature can never be intended to do this." Therefore, after de- 
 ciding that the statute did not refer to the fraud thus pointed 
 out, but to such as the books of the law had already recognized 
 as invalidating the marriage, the court further held, that a de- 
 cree annulling the relation on this ground could not be granted 
 to a woman, who, being with child, had caused the putative 
 father to be arrested under the bastardy process ; and he, for 
 the sole purpose of procuring his discharge from the arrest, had 
 married her with the intent of immediately deserting her, which 
 intent he carried into execution. ^ It is in place, however, to 
 
 1 Benton v. Benton, 1 Day, 111. appear to overlook entirely the class 
 While the language of the court, as of frauds which we are considering in 
 quoted in the text, is doubtless a cor- this chapter. Now, it is not easy to 
 rect exposition of the law, some further see how fraud is involved in a mar- 
 observations which fell from the judge riage within the prohibited degrees of 
 are clearly erroneous. He said : " The consanguinity. Impotence may be re- 
 phrase fraudulent contract, as applied to garded as a species of fraud in law ; yet, 
 the subject of marriage and divorce, according to the better doctrine, courts 
 in the books, has obtained an appro- of equity, though they will set aside 
 priate and technical meaning ; and is marriages procured by fraud, where 
 taken to imply a cause of divorce which there is no other competent jurisdic- 
 existed previous to the marriage, and such tion, will not on the ground of fraud 
 a one as rendered the marriage unlaw- divorce parties for impotence. Burtis 
 ful ab initio ; as consanguinity, corporal v. Burtis, Hopkins, 557 ; Perry v. Perry, 
 imbecility, or the like ; in which case, 2 Paige, 501 ; ante, § 72. Upon this 
 the law looks upon the marriage as matter. Judge Eeeve, of the same State 
 null and void, being contracted infrau- of Connecticut, has observed : " Cer- 
 dem legis, and 'decrees a separation u, tainly, if nothing more was meant by 
 vinculo matrimonii." And, therefore, the term ' fraudulent contract ' [in the 
 upon the ground of fraud, the courts statute] than imbecility, it is a very 
 of Connecticut have taken jurisdiction awkward expression to convey that 
 to grant divorces for impotence. Per- precise, definite idea which is affixed 
 ris V. Ferris, 8 Conn. 166. But they to the term imbecility. If the legis- 
 
 152 
 
CHAP. XI.] 
 
 §179 
 
 observe of this decision, that, though the language above quoted 
 is a correct exposition of the general doctrine of fraud in mar- 
 riage, still, — according at least to the Scotch law, to be ex- 
 plained in another chapter, — if the marriage were not formally 
 celebrated, and perhaps if it were, the absence of intent to marry, 
 it not having been afterward consummated, would render it 
 void.i And upon this question also, the reader is referred to 
 some observations found in the earlier sections of this chapter.^ 
 § 179. False Representation of Chastity — lOarrying a Pros- 
 titute — ^"Ayliife as an Authority. — If a woman who has been 
 defiled pretends to be a virgin, and a man marries her on his 
 faith in this pretension, the marriage is nevertheless good, even 
 though she is a common prostitute.^ This proposition, while it 
 is doubtless correct, does not rest upon a very firm basis of 
 authority in this country and England, as concerns a marriage 
 with a common prostitute ; though it is well settled in Scot- 
 
 lature meant to convey the same idea 
 by the terra, which it ordinarily im- 
 ports, I apprehend it was a very natu- 
 ral provision. If it be founded in 
 justice that the contracts whicli repre- 
 sent ordinary matter should be treated 
 as void when obtained by fraudulent 
 practices, why, then, shoiild a contract, 
 the most important that can be entered 
 into, be deemed inviolable, when ob- 
 tained by such fraudulent practices 1 
 A man, by the foulest fraud, gets pos- 
 session of the property of his neighbor. 
 A contract thus basely obtained is not 
 only void, but, in many instances, the 
 obtaining of it is a felony. The com- 
 mon sense of mankind 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 efficacy 
 as if fairly procured. The truth is, 
 that a contract which is obtained by 
 fraud is, in point of law, no contract. 
 The fraud blots out of existence what- 
 ever semblance of a contract there 
 might have been. A marriage pro- 
 cured 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 and violence. The consent is 
 as totally wafnting, in view of tlie law, 
 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 marriage 
 has no effect. Upon the same princi- 
 ple that chancery decrees contracts 
 unfairly obtained void, all the appre- 
 hension that is created in the minds 
 of conscientious men, of the illegality 
 of separating husband and wife, is dis- 
 sipated. If this view be correct, they 
 never were husband and wife, one 
 essential ingredient to the contract be- 
 ing wanting, namely consent." Eeeve 
 Dom. Rel. 206. But this view appears 
 not to have convinced the tribunal of 
 final resort in that State. Guilford v. 
 0.\ford, 9 Conn. 321, 327. 
 
 1 Post, § 237, 238. 
 
 2 Ante, 166, 169-171, 176. 
 ■* Rogers Eo. Law, 2d ed. 644 ; 1 
 
 Eras. Dom. Rel. 231; Ayl. Parer. 363; 
 Swinb. Spousals, 2d ed. 152; Hedden 
 V. Hedden, 6 C. E. Green, 61 ; post, 
 § 184. 
 
 153 
 
§ 179 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 laud, and one cannot easily read the English books witliout be- 
 ing convinced that it is the doctrine of the English courts also.^ 
 The English dicta, for there appears to be no decided case, 
 seem all to have come down from Ayliffe, who states the doc- 
 trine in terms not very conclusive in themselves,' and still fur- 
 ther weakened by the fact, that he is seldom to be relied upon 
 to sustain, alone and uncorroborated, a doubtful proposition. 
 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 
 supposes, that, under the statute of Ohio, the courts would set 
 aside such a marriage as we are considering ; but he rests his 
 opinion merely on the reason of the thing, not on authority.^ 
 On principle, however, it would seem, that, if a woman has 
 been a common prostitute, and has reformed, though sl>e con- 
 ceals 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. Other- 
 wise a woman of strong passions, led astray by them, could 
 have no hope of reform ; but the law should encourage virtue.^ 
 So the law should presume, from the fact of marriage, that the 
 woman had abandoned unlawful pleasures. 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 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, 
 
 1 See Perrin v. Perrin, 1 Add. Ee. modest woman, he cannot afterwards 
 1, 2 Eng. Ec. 11 ; Reeves u. Reeves, free himself from her by reason of her 
 2 PhiUim. 125, 127, 1 Eng. Ec. 208, 209 ; unchastity. But there is no such law. 
 Graves v. Graves, 3 Curt. Ec. 235, 7 Whatever the previous life of a woman 
 Eng. Ec. 425, 427 ; Best v. Best, 1 Add. may have been, she binds herself by 
 Ec. 411, 2 Eng. Ec. 158 ; where it is marriage to chastity, and if she break 
 held, that antenuptial incontinence is the conditions of marriage, her husband 
 no ground of divorce. is entitled to claim its dissolution. But, 
 
 2 Page on Div. 161. on the other hand, a husband is at all 
 
 3 See Scroggins v. Scroggins, 3 Dev. times bound to accord to his wife the 
 535, 545. See also ante, § 170, 171. protection of his name, his home, and 
 
 1 ." It has been sometimes supposed, his society, and is certainly not th5 
 that, if a man chooses to marry an im- less so in cases where the previous life 
 
 154 
 
CHAP. XI.J FRAUD, ERROR, DURESS. § 179 a 
 
 therefore, to be no urgent reason here for holding the marriage 
 under consideration void, — a doctrine which would merely 
 render innocent children illegitimate. ~ 
 
 § 179 a. Continued. — As already intimated, there is un- 
 doubtedly room to draw a distinction between the marriage 
 of a street strumpet and that of a woman who may have com- 
 mitted a single act or series of acts of private incontinence. A 
 case of the latter complexion was brought before the Michigan 
 court ; it was one not calculated to win favor, and happily it 
 did not. The facts were, that, after a marriage of twenty 
 years' standing, and cohabitation under it, and the bringing up 
 of children, a husband brought his bill to annul the marriage 
 by reason of an alleged fraud of this sort. The bill set out, 
 that, before marriage, the chastity of his wife was made by him 
 a subject of diligent inquiry among her relatives, and also in 
 her presence ; but, though he used due diligence, he could 
 learn nothing on the subject through his inquiries of others, 
 yet she made to him specific assertions which were false, on the 
 strength of which he married her. Having now ascertained 
 that she was guilty of antenuptial incontinence, he prayed for 
 relief. And it was held that the allegations of the bill, should 
 they be proved, were not such as would justify the court in 
 setting aside the marriage. 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. With- 
 out attempting to examine at length into the reasoning of these 
 decisions, it is sufficient to say that such circumstances intro- 
 duce very different evils from those attending on previous 
 fault alone. They have a direct tendency to confuse inheri- 
 tances, 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." ^ 
 
 of his wife renders her peculiarly acces- doctrine on the subject of antenuptial 
 sible to temptation." Lord Penzance incontinence, — to be explained in sue- 
 in Baylis v. Baylis, Law Rep. 1 P. & ceeding sections. Dawson v. Dawson, 
 M 395, 397. 18 Mich. 835. In Maryland, I am sorry 
 1 Leavitt v. Leavitt, 13 Mich. 452, to say, there is a statutory provision 
 458. In a subsequent case, it seems to authorizing divorce from the bond of 
 be strongly implied that the Michigan matrimony " when the female before 
 court would hold the usual American marriage has been guilty of illicit car- 
 
 155 
 
§ 181 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 §180. How when the 'Woman is pregnant. — Connected, 
 therefore, with the question discussed in the last two sec- 
 tions, is another, which, in various aspects, has arisen in sev- 
 eral of the American cases. It is, whether or not, after a 
 marriage and consummation, a man can have the marriage 
 declared void for fraud, if he discovers that, at the time of its 
 celebration, the woman was pregnant by a person other than 
 himself. The question is here put in this general way, for the 
 sake of convenience, though there have been drawn lines of 
 distinction, which, if we admit their correctness, will place 
 some of the cases embraced within the general language of the 
 question on the side where the relief is given, and others of 
 them on the other side. A case which, though not the earliest 
 in point of time, may perhaps be deemed a leading one on the 
 subject, occurred in Massachusetts, as follows : — 
 
 § 181. Continued. — A statute authorized a sentence of 
 
 nullity or divorce " when a marriage is supposed to be void, 
 
 or the validity thereof is doubted, either from fraud or any 
 
 legal cause ; " ^ and, upon this statute, a libel for nullity was 
 
 brought by a supposed husband, wherein the following facts 
 
 were alleged : that at the time of the marriage he was " only," 
 
 in the word 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 
 
 induced to marry her by means of her false and fraudulent 
 
 representations that she was a chaste and virtuous woman, 
 
 nal intercourse with another man, the first. If she puts the confession into 
 
 same heing unknown to the husband writing, it may he lost or destroyed, 
 
 at the time of the marriage." 1 Md. There should be estabUshed in every 
 
 Code of 1860, 76, § 25. Now, if a county a public registry for such 
 
 Maryland girl has committed a single things. Whether there is I have not 
 
 private sin of this sort, and has washed searched the Maryland statutes suffi- 
 
 it out with her tears, and Heaven has ciently to ascertain. But I am able to 
 
 forgiven her, then, if her hand is asked say, that this sort of provision is not 
 
 in marriage, what is she to do 1 Why, common in the statutes of our States. 
 
 of course, before the courtship proceeds A statute of Virginia, however, going . 
 
 further, she is to confess all to her less far, provides for a divorce where 
 
 lover, and put it in his power to ruin the woman had before marriage, with- 
 
 her. But this is not all. She is not out the knowledge of the man, been 
 
 safe to marry without proof of the con- " notoriously a prostitute." Code of 
 
 fession. If she calls in her mother, 1860, p. 530, § 6. 
 
 the chances are that the witness will ' Stat. 1855, c. 27 ; re-enacted. Gen. 
 
 die before she does. Then, if she calls Stats, c. 107, § 4. 
 in her younger brother, he may die 
 
 166 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 183 
 
 which he believed to be true ; and that her friends with whom 
 she then lived represented to him, at her procurement, that 
 she was honest and virtuous ; but in truth she was not virtu- 
 ous, 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, 1856], and the libellant did not 
 thereafter live or have any intercourse with her." The reader 
 sees, that, according to this allegation, she was some four 
 months along in her pregnancy at the time of the marriage. 
 To this libel the respondent demurred ; and so the question 
 was, whether, assuming these facts to be all and severally true, 
 the libellant was entitled to a sentence of nullity. The court 
 held tliat he was, and so overruled the demurrer. ^ 
 
 § 182. Continued. — A decision ordinarily contains, as we 
 find it reported, three things ; namely, the result as resting 
 upon the facts ; the general propositions contained in the 
 opinion ; and the reasoning based on those propositions. 
 These may be all such as should be approved, as things per- 
 taining to our general jurisprudence ; or one or two of them 
 may be such, while tiie other or the rest are not. And perhaps 
 we cannot better examine some points connected with our 
 present topic, than in connection with this case. We shall 
 consider the general principles first ; next, the reasoning ; 
 lastly, the result. 
 
 § 183. Continued — General Principles. — Said the learned 
 chief-justice, who delivered the opinion of the court : " It would 
 be difficult, if not impossible, to lay down any general rule or 
 definition which 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 fraudulent intent and conduct of parties necessarily in- 
 volves an investigation 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 
 1 Keynolds v. Reynolds, 8 Allen, 605. 
 
 157 
 
§ 184 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK HI. 
 
 general rule which can be safely stated is, that, to render a 
 contract void on the ground of fraud, there must be a fraudu- 
 lent misrepresentation or concealment of some material fact. 
 What amounts to such misrepresentation or concealment, and 
 wliether 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."^ It 
 seems to the writer of these volumes tliat the observations thus 
 quoted are eminently just ; and that, in the nature of things, 
 there can be no one exact measure which can be readily applied 
 to a case of fraud in marriage, to determine whether it is long 
 enough, or broad enough ; neither, on the other hand, can 
 there be any exact test of the quality of the alleged fraud, to 
 determine whether it is of the kind which vitiates the marriage 
 or not. Suppose, in the case under consideration, we start 
 with the proposition, that mere antenuptial incontinence is no 
 ground for a decree of nullity : tlie result plainly is, if we con- 
 fine ourselves to the quality of the act, that being pregnant 
 and concealing the pregnancy is no ground ; since the preg- 
 nancy is the natural and probable consequence of the incon- 
 tinence. And if we look at tlie moral quality of the act, surely 
 she who, in a moment of weakness and confiding love, yields 
 to a single embrace, which may produce pregnancy, is im- 
 measurably less culpable than tlie common prostitute, who, as 
 we have seen, has her day for repentance, and is therefore 
 permitted to contract indissoluble marriage with a man kept 
 in ignorance of tlie prostitution. 
 
 § 184. Continuea. — Again, the learned judge 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 avoid it which does not amount to a 
 fraud in the essentialia of the marriage relation. And as mere 
 incontinence in a woman prior to her entrance into the mar- 
 
 1 Reynolds v. Reynolds, 3 Allen, '- In support of this view, see ante, 
 605, 606. Bigelow, C. J. § 166-168 ; Wier v. StiU, 31 Iowa, 107. 
 
 158 
 
CHAP. XI.] FRAUD, "EBROR, DURESS. § 185 
 
 riage contract, 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 subject of chastity to be such a fraud as to afford a 
 valid ground for declaring a consummated marriage void." ^ 
 These observations are eminently just. 
 
 § 185. Continued — The Seasoning. — Having laid down the 
 foregoing propositions, the learned judge proceeded to distin- 
 guish this case from one of mere antenuptial incontinence. 
 " 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 intercourse, has during the period of her gestation 
 incapacitated herself from making and executing a valid con- 
 tract of marriage with a man who takes her as his wife in 
 ignorance of her condition and on the faith of her representa- 
 tion that she is chaste and virtuous." ^ If tliis proposition is 
 to be understood as meaning any thing more than to state the 
 conclusion to which the court had come, — the conclusion 
 being matter to be discussed further on, — it requires here 
 some observation. We must, in looking at the law of marriage, 
 view it as a whole thing, harmonious, and not discordant. 
 Now, when we come to examine the question of impotepce, we 
 shall see, that a woman who is incurably barren, who can 
 never be the mother of children, is in a condition to contract a 
 valid marriage with a man who takes her supposing her com- 
 petent to become a mother, if she has the physical capacity to 
 submit to a consummation of the marriage. Even if she has 
 not, but is curable, so that at any time after the marriage 
 ceremony is performed, whether in one month or one year, 
 she can by any treatment, — as, for instance, the performance 
 of a surgical operation, — be made capable of receiving the 
 
 1 Reynolds v. Reynolds, 3 Allen, ^ Reynolds v. Reynolds, 3 Allen, 
 605, 607, 608. 605, 609. 
 
 159 
 
§ 186 MARRIAGE IMPERPBOTLT CONSTITUTED. [BOOK III. 
 
 embraces of her husband, the marriage is good. And if the 
 woman has " incapacitated herself," by her own voluntary 
 fault or wickedness, this makes no difference.^ Clearly, there- 
 fore, in a case such as the court was considering, the mere 
 present incapacity of the woman, either for sexual intercourse, 
 or for becoming pregnant by the husband, could furnish no 
 ground for pronouncing the marriage void for the fraud. 
 
 § 186. Continued. — But the learned judge proceeded: "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 lead's 
 to the belief that 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."^ The answer to a 
 part of this reasoning, if the comments which the writer is 
 here making be properly called such, was given in our last 
 section. -But the learned judge proceeds to develop the 
 proposition, thus alluded to, that, since the child born of 
 the woman is presumed to be the husband's, though begot- 
 ten out of wedlock, therefore, unless a decree of nullity were 
 allowed, the husband would be placed in a legal and social 
 predicament of an extremely unpleasant nature. " The rule 
 of the commou law is," he observed, " that, if a man marry 
 a woman who is with child, it raises the presumption that 
 the child with which she is pregnant was begotten by him. 
 This presumption is founded on the supposed acknowledg- 
 ment of paternity by the subsequent act of marriage ; and, 
 although such presumption is liable to be rebutted, yet in the 
 absence of proof it stands.^ A man, therefore, who has con- 
 tracted a marriage with a woman under such circumstances, 
 if he could not obtain a divorce on the ground of fraud, would 
 
 1 Post, § 321 et seq., 332, 333, note. ' Referring to Hemmenway v. Tow- 
 
 2 Reynolds v. Reynolds, 3 . Allen, ner, 1 Allen, 209 ; Phillips v. Allen, 2 ' 
 605, 610. Allen, 453. 
 
 160 
 
CHAP. XI.] FEAUD, ERROR, DURESS. §187 
 
 be subjected to the 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 legit- 
 imacy 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 considera- 
 tion of policy which requires that a marriage procured by 
 false statements or representations and attended with such 
 results upon an innocent party should be held valid and bind- 
 ing on him." ^ 
 
 § 187. Continued. — With regard to the presumption raised 
 by the law, that a child begotten before marriage, and born 
 afterward, is the offspring of the husband, the impression is 
 strong upon the mind of the writer that this presumption 
 is held less stringently by some tribunals than by others. 
 Where the birth is soon after the marriage, all courts hold it 
 to be almost overpowering ; because, in such a case, the plain 
 inference is, that the husband knew of the pregnancy, and 
 that he would not have consented to enter into the marriage 
 unless he were conscious of having had previous intercourse 
 with the woman.2 But it has been deemed, that, if at the 
 marriage the pregnancy is probably unknown (as it must be 
 usually where the woman is but four or five months ad- 
 vanced) ; where the parties' acquaintance commenced too late 
 for the husband to be the father of the child afterward born ; 
 where the common opinion in the vicinity assigns the child to 
 another man ; where the child grows up, not in the husband's 
 house, nor looking on him as a father, nor being considered as 
 his child ; and where the woman's reputation 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 paternity on the part of the husband. " The 
 knowledge of the situation of the party," said a learned judge, 
 " constitutes the ground of the presumption."* 
 
 • Reynolds v. R eynol ds^ supra, p. 256. See Bowles v. Bingham, 2 Munf. 
 610. " ■ 443, 3 Munf. 599. 
 
 2 Page V. Dennison, 1 Grant, 877, 5 3 Stegall v. Stegall, supra. 
 Casey, 420 ; The State v. Herman, 13 < Baker v. Baker, 13 Cal. 87, 99. 
 Ire. 502 ; Stegall v. St«gall, 2 Brock. And see post, § 548. 
 
 VOL. I. 11 161 
 
§ 189 MABRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 § 188. Continued. — But it is seldom, in our jurisprudence, 
 that rights are made to turn, as matter of law, on the ability 
 or want of ability to prove the facts, assumed to be involved in 
 the question. And especially in such a case as this, if a man 
 can prove himself not to be the father of the child, when he 
 brings his suit to have the marriage declared void, he can 
 prove the same fact when the question is one of legitimacy. 
 The matter, therefore, which remains is, — What effect shall 
 the unpleasant predicament of the husband, in such a case, 
 have as an element in the legal decision ? Were it known to 
 everybody, — to all the world, — except to himself, at the 
 time of the marriage, and even after, that until then the 
 woman was a common strumpet, the unpleasantness of the 
 predicament would not afford ground for a decree of nullity. 
 It is difficult, therefore, to understand, that, in this case, the 
 element of unpleasantness should have a controlling influence. 
 
 § 189. Continued — The Result. — It Cannot, consequently, be 
 disguised, that the reasoning on which this case proceeded 
 is, when looked at in its parts, of a somewhat unsatisfactory 
 nature. At the same time it sho.uld be observed, that, as 
 will appear in subsequent sections, the result accords with 
 what may be deemed to be the judicial opinion of this 
 country. And the writer of these volumes, while, if he 
 were a judge, he could not probably reason the case out as 
 well as did the learned chief justice who pronounced the 
 opinion, cannot in these pages, more than Ire could were he 
 on the bench, see a clear path to the contrary ^conclusion. 
 There are, in the law, intangible lines, too subtle for the 
 pen clearly to draw, yet obvious to the legal mind. And 
 here, though the particular reasons, when looked at one by 
 one, seem not substantial, yet the mind does recognize a 
 substantial justice in the result. And it is a principle very 
 widely extending through our law, that combinations of things 
 produce an effect which each several thing, acting singly, 
 though one should follow the other until all had thus sever- 
 ally acted, could not do. The law is as wise as was the 
 man who, in the fable, taught his sons wisdom by means of 
 a bundle of sticks. We have the doctrine of conspiracy— 
 162 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 190 
 
 but why enumerate? The learned reader will call to mind 
 sufficient illustrations. Let us see how this combined case 
 stands : — 
 
 § 190. Continued. — A woman knows she is pregnant; she 
 is somewhat along in years. There is a boy ; and she employs 
 other persons to assist her in stimulating the boy's mind, and 
 to tell him the untruth that she is a virtuous woman. This 
 and more are done, yet all is false. The reader remembers 
 the rest. Here is a combination of circumstances, no one of 
 which might perhaps, on any sound principle, be deemed suffi- 
 cient ; but, when all come together, the mind cries, — " Hold, 
 this is enough ! " The extent, therefore, of the fraud practised 
 in the particular case is to be considered. This is one of the 
 propositions which the court laid down. The kind of fraud is 
 another matter to be considered ; this is another of the learned 
 judge's propositions. And the writer will add a third proposi- 
 tion ; it grows out, indeed, of some words employed by the 
 judge himself, as the reader will see, if he tarns to the report : 
 Where, on a review of the whole case, the court perceives, that 
 to hold the marriage valid and keep the parties in cohabitation 
 would present an unseemly spectacle to the public eye, consid- 
 ering the actual state of opinions in relation to marriage, this 
 should be taken into the account. The court is, in some 
 measure, the guardian of marriage, and it should not, there- 
 fore, send abroad the ward to receive the scoffs of riglit-minded 
 people in whose presence she walks. Still another considera- 
 tion is this: A judge, though he sits to administer the law of 
 his own State, and not the law of England as such, or the law 
 of aiiy sister State, is still to pronounce, not what he as an 
 individual may deem intrinsically best, but, where the line has 
 not been drawn, and principles are conflicting or doubtful, 
 what he believes to be the common legal sentiment. And to 
 ascertain this, he receives help from other States and coun- 
 tries, as well as his own. In the present case, the court had 
 intimations in judicial decisions of sister States. Thus the 
 California court had a little while before decided, that, if a 
 woman is with child by a stranger, at the time of the marriage, 
 and her intended husband is ignorant of the fact, he may have 
 the marriage declared null for the fraud. The statute of the 
 
 163 
 
§ 190 a MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 State provides for such a sentence " when the consent of 
 either party was obtained by force or fraud." ^ The reasoning 
 of the court, in this California case, is such as will amply 
 repay a careful perusal, but the writer has already occupied 
 too many sections with the topic to justify an extension of the 
 discussion much further. 
 
 § 190 a. Continued. — Since the case of Reynolds v. Rey- 
 nolds, which we have been discussing in the last few sections, 
 was decided by the Massachusetts court, the like question has 
 been before the same tribunal under facts more or less 
 differing from those. And it is held, that, if a man has had 
 himself sexual intercourse with a woman, but unknown to him 
 she has also had the like intercourse with another man, and by 
 the other man has become pregnant, and he marries her on 
 his faith in her assurance that the child is his, this is not a 
 fraud which will justify the setting aside of the marriage. ^ In 
 like manner, if he lias done tliat from which paternity may 
 spring, and she denies being pregnant, while in fact she is by 
 another man, and on the faith of this denial he marries her, 
 he cannot therefore have the marriage set aside. Said the 
 court, in the case in which it was so adjudged : " The facts 
 show that the libellant had full knowledge that the libellee was 
 unchaste, before 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." ^ 
 
 1 Baker v. Baker, 13 Cal. 87, 102. had it existed, to alter the case. If 
 See also Montgomery v. Montgomery, the man had asked a thousand persons, 
 3 Barb. Ch. 132; post, § 191. and all had said they knew nothing 
 
 2 Foss u. Foss, 12 Allen, 26. The against the woman's chastity, I do not 
 case was one in which the man took see how this could have changed the 
 no steps to verify, by independent in- relation of the contracting parties. I 
 quiries, the statement of the woman on am ratlier inclined to understand the 
 the point whether or not she had been court to lay down the doctrine, that, 
 unchaste with another man ; and the since the man had himself found the 
 language of the learned judge who woman frail, he was put on his guard, 
 delivered the opinion is such as perhaps then, if he chose to marry her, he took 
 to leave it to be inferred, that, if he had the consequences. 
 
 taken such steps, and still been de- 3 Crehore v. Crehore, 97 Mass. 330. 
 
 ceived, the result might be differ- I tannot but think that there is another 
 
 ent. I doubt, however, whether the ground upon which this decision could 
 
 court would have deemed such a fact, equally well have been put. Fornica- 
 164 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 190 I 
 
 § 190 h. Continued. — But, in the facts of most cases, the 
 woman simply conceals her pregnancy, and nothing is said on 
 the subject. In other words, the majority of men, about to 
 marry, do not put to the intended wife the direct question, in 
 the presence of witnesses, — " Are you pregnant ? " If, then, 
 the woman is found to be pregnant, what is the consequence of 
 having omitted to put the question ? Anothei\Massachnsetts 
 case holds, that, to sustain a libel for nullity on' this ground, 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 concealment 
 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 misrepresenta- 
 tions or any positive and overt acts of concealment. It is 
 sufficient to prove that the acts and conduct of one of the par- 
 ties were such 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 ingre- 
 dient 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, whether 
 it is the result of express statements 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 elsefhave 
 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 excepting from its 
 operation the contract of marriage. The real difficulty in 
 
 tion is, in Massachusetts, an indictable in which fornication is not indictable, 
 oflfence. The woman's misrepresenta- tliis point would not be so palpable ; 
 tion, therefore, related to matter about still, in such a State, fornication is a 
 which she and the man had been gross breach of the good order of 
 jointly engaged in breaking the laws ; society ; and it might well be deemed 
 and not the less so, though it included to be against the policy of the law to 
 the false statement that she had not relieve a plaintiff from a fraud corn- 
 broken the laws with another person, mitted by the defendant in respect of 
 It would be against the policy of the this sort of immoral act, in which the 
 law, therefore, to sustain a suit grow- parties had mutually participated. 
 ing out of this transaction. In a State 
 
 165 
 
§ 191 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 applying the rule to the latter contract is in determining what 
 facts shall be deemed material. But when that question 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 
 impossible, 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 represen- 
 tations to the man whom she intended to marry." ^ 
 
 §191. Continued. — These Massachusetts cases, with some 
 other recent ones, have been examined togetiier, because they 
 seem to have given form and consistency to the general doc- 
 trine. But the doctrine had been before maintained by other 
 courts ; and, in the earlier editions of this work, it was laid 
 down, upon the cases which had been adjudged, as follows : If 
 a woman, being with child, falsely tells a man (here, of course, 
 the man knows of the fact of the pregnancy) that the child is 
 his, and he, believing this misrepresentation, marries her ;^ or, 
 knowing it is not his, marries her to avoid a prosecution,^ but 
 afterward comes in possession of the means of proving his 
 innocence ; still the marriage is good. Neither, it seems, is 
 the case different, if she, being a white person, is pregnant of 
 a mulatto child, and conceals from the man, also white, the 
 fact that she received a negro's embraces about the time of 
 receiving his.* Where, in the case last put, no active measures 
 were taken by the woman to deceive, the marriage was held to 
 be valid. ^ But where, in the circumstances thus mentioned, 
 the child had been born, and she knew it to be a mulatto, yet 
 swore it upon the white man, and took out a bastardy process, 
 on which she had him arrested ; to avoid which process, under 
 the belief of being the father, he married her ; the marriage 
 was set aside as procured by fi-aud. " If," said the Chancellor, 
 " the child had not been born at the time of marriage, the 
 
 t 
 
 1 Donovan v. Donovan, 9 Allen, 140, * Scott v. Shufeldt, 5 Paige, 43. ' 
 141. And see Hulihgs v. Hulings, i West.'' 
 
 2 Moss V. Moss, 1 Ire. 55. See also Law Jour. 131. 
 
 Frith V. Trith, 18 Ga. 273. 5 Scroggins v. Scroggins, 3 Dev. 
 
 3 See post, § 212, 213. 535. 
 
 166 
 
CHAP. XI.J FRAUD, ERKOK, DURESS. § 191 a 
 
 complainant would have had some difficulty in showing that he 
 had been intentionally deceived and defrauded by the defend- 
 ant, as she might possibly have supposed the child to be his, 
 although she had also had connection with a negro about the 
 same time." ^ Also, it has been held (a case considered more 
 at large in the foregoing sections), that, if a pregnant woman, 
 representing herself to be virtuous, takes measures to conceal 
 her pregnancy, and so induces a man to marry her, he may 
 have the marriage set aside for her fraud. Thus the court 
 decided, in a case so adroitly managed that the first suspicion 
 the man had was awakened by the appearance of a full-grown 
 babe, three weeks after his marriage ; whereupon he left her, 
 and bi'ought his suit.^ If a woman pretends to a man that she 
 is pregnant by him, and she is not pi-egnant at all, but he mar- 
 ries her believing her representation to be true, he cannot have 
 the marriage set aside for this fraud .^ 
 
 § 191 a. Continued — Statutes — (Bestiality, in the Note). 
 — This form of fraud has in some of our States been legis- 
 lated upon. Thus, in Alabama, a divorce may be granted 
 " in favor of the husband, when the wife was pregnant at the 
 time of marriage, without his knowledge or agency." * What 
 may be the construction of this statute the author has no 
 means of saying. But, upon its face, it would appear to go 
 somewhat further than the unwritten law. Probably if a 
 woman, though pregnant, should have no knowledge or sus- 
 picions of the fact, and should make no representations directly 
 or indirectly on the subject, and a man should marry her not 
 knowing her to have committed any unchaste act, this mar- 
 riage would not, under the unwritten law, be set aside by the 
 courts. Still it would seem to be a case within this Alabama 
 statute. In like manner, the Georgia statute, which would 
 appear to require the same construction, mentions, among the 
 causes of divorce, " pregnancy of the wife, at the time of mar- 
 riage, unknown to the husband." ^ 
 
 1 Scott V. Shufeldt, supra. « Eev. Code of 1867, § 2352. 
 
 2 Morris v. Morris, Wright, 630 ; s. ^ Code of 1868, § 1711. Of course, 
 p. under a statute authorizing divorces these statutes, like all others, must be 
 in the discretion of the court, Ritter v. construed to harmonize with the un- 
 Ritter, 5 Blackf. 81. written law, except in particulars upon 
 
 8 Hoffman v. Hoffman, 6 Casey, 417. which they are distinct. Thus, in 
 
 167 
 
§ 193 MARRIAGE IMPERFECTLY CONSTITUTED. LBOOK III. 
 
 § 192. Forged Marriage License. — To proceed now to other 
 forms of fraud, a Texas case goes to the very great length, 
 that, where a girl fifteen years and seven months old had, 
 without the consent of her parents, permitted herself to pass 
 through the form of matrimony with a man who produced a 
 license which he had procured by forgery, and she had never 
 yielded to the consummation of the marriage, it might be set 
 aside, on her application, for his fraud. The doctrine was 
 even laid down, that this was so, whether, in matter of law, a 
 certificate or any regular solemnization is essential or not to 
 constitute marriage.^ But here, the reader observes, we have 
 the element of non-consummation, already discussed;^ also 
 the element, about to be considered, of the immaturity of the 
 mind operated upon. 
 
 § 193. Fraud practised on Weak, Disordered, or Subject Mind. 
 — One of the most material considerations involved in these 
 cases relates to the quality of the mind upon which the fraud- 
 ulent representations are made to operate. In fact, the 
 blending of the two causes of nullity, weak mental capacity 
 and fraud, is, as was observed in the chapter on insanity,^ very 
 commonly found in the facts of the cases. Let us see how this 
 question stands in relation to contracts not matrimonial. In 
 a Tennessee case, where suit was brought in equity to have 
 some promissory notes set aside on the ground of the want 
 of mental capacity in the party executing them, and of fraudu- 
 lent practices by the other party, McKinny, J., observed: 
 " 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 law- 
 suit, which might sacrifice his estate ; that false representa- 
 tions were made to him respecting his supposed liability to the 
 
 Alabama, among the causes of divorce woman knew of it at the time when her 
 
 is " the commission of the crime against nuptials were solemnized, she could 
 
 nature, whether with mankind or have no relief. Here the common law 
 
 beast, either before or after marriage." would supply that about which the 
 
 Eev. Code of 1867, § 2351, 4 a. This statute was silent. Bishop Stat. Crimes, 
 
 provision is silent concerning the knowl- § 114, 119, 124, 144, 1021, 1022. 
 edge of the complaining party. But i Robertson v. Cole, 12 Texas, 356. 
 clearly, if the offence was committed 2 Ante, § 166, 169-172. 
 before marriage, and the complaining ' Ante, § 134, 135. 
 
 168 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 194 
 
 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 plaintiff; 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 ; and the party was, therefore, relieved by the 
 court from his obligation.^ And this general doctrine is illus- 
 trated in a variety of cases.^ If the one imposed upon stands 
 in a relation of confidence to the person using the imposition, 
 
 — 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.^ 
 
 § 194. Continued. — Where the contract is an executed one, 
 
 — as, for instance, where there is a conveyance of land and 
 possession is taken under it, — the court will not so readily 
 set it aside as when it is merely executory ; a point which, the 
 reader perceives, has its application in marriage, which, when 
 viewed as a contract, is, not executory, but executed.* Said 
 Woodward, J., sitting in the Pennsylvania court: "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 set aside in ordinary matters as well 
 as in matrimonial.^ And in all these cases it must appear, not 
 only that the party was liable to be influenced by fraudulent 
 practices, but also that he was actually defrauded.'' A point 
 
 1 Johnson u. Chadwell, 8 Humph, lor v. Taylor, 8 How. U. S. 183 ; Free- 
 145, 149. land v. Eldridge, 19 Misso. 325. 
 
 2 Marshall v. Billingsly, 7 Ind. 250; * Ante, § 3. 
 
 Stewart u. Hubbard, 3 Jones Eq. 186 ; * jjace v. Boyer, 6 Casey, 99, 110. 
 
 Tracey v. Sacket, 1 Ohio State, 54 ; 6 Ellis v. Mathews, 19 Texas, 390 ; 
 
 Craddock w. Cabiness, 1 Swan, Tenn. Powell u. Cobb, 8 Jones Eq. 456 ; James 
 
 474 ; Chevalier v. Whatley, 12 La. An. a. Langdon, 7 B. Monr. 193. 
 
 651. ' Walton v. Northington, 5 Sneed, 
 
 5 Graham v. Little, 3 Jones Eq. 152 ; 282 ; Nace v. Boyer, supra. 
 Powell V. Cobb, 3 Jones Eq. 456 ; Tay- 
 
 169 
 
§ 196 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 like this, as applied to marriage, was discussed in a previous 
 chapter.! 
 
 § 195. Continued. — So, in a matrimonial case, which was a 
 mixed case of fraud and mental imbecility, Sir John Nicholl 
 observed : " 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 relation of guar- 
 dian, 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, " procur- 
 ing 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 
 detecting the fraud, and of resisting the ascendency practised 
 in obtaining his consent to the contract, can hardly be con- 
 sidered as binding himself in point of law by such an act." 
 And therefore the pretended marriage was in this case ulti- ■ 
 mately set aside. ^ 
 
 § 196. Continued. — Wakefield's Case, otherwise termed Miss 
 Turner's nullity of marriage bill, turned chiefly on fraud and 
 conspiracy, though partaking slightly of the element of duress. 
 There a girl of fifteen, having large expectations of fortune, 
 was inveigled away from her boarding-school on the false rep- 
 resentation that her mother, being attacked with dangerous 
 sickness, had sent for her. The conspirators, liaving obtained 
 thus the control of her person, induced her to marry one of 
 them, by a series of fraudulent representations, the chief of 
 which were, that her father had become bankrupt, was flying 
 from his house in great distress to evade the pursuing bailiffs, 
 and the only mode of escape for him was in her marrying the 
 conspirator, and thereby obtaining, in a manner pointed out 
 to her, power over the estates. A pretended message from 
 her father was also communicated to hasten her decision. 
 After the marriage, and before consummation, she was traced 
 out and rescued by her friends. " Why did you consent ? " 
 
 1 Ante, § 135. of force and custody." See note at the 
 
 2 Harford v. Morris, 2 Hag. Con. 423, end of the report. 
 
 4 Eng. Ec. 575. Sir W. Wynne said 3 Portsmouth v. Portsmouth, 1 Hag. 
 this case was decided " on the ground Ec. 355, 3 Eng. Ec. 154 156 
 
 170 
 
CHAP. XI. j FRAUD, ERRaR, DURESS. § 198 
 
 she was asked, while testifying in a criminal prosecution 
 against the conspii-ators. Prom " the fear that, if I did not, 
 my papa would be ruined." The conspirators were convicted 
 in the criminal court ; and the marriage was declared 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 tri- 
 bunal.i 
 
 § 197. General Survey — Facts viewed in Combination. — Tlie 
 foregoing views, consisting of a combination of legal principles 
 and specific facts, do not by any means exhaust the subject ; 
 neither, are there cases in sufficient number to enable any 
 writer to do this. At the same time we seem to have arrived 
 fairly at the conclusion, that in this particular matter of fraud, 
 we are, in the nature of things, to walk more in the light of 
 particular cases, and less in the light of any general principles 
 deducible from them, than in many other departments of our 
 law.^ Looking, therefore, after the facts of individual cases, 
 let us make an exploration into the field of Scotch law. 
 
 § 198. Scotch Law of Fraud : — 
 
 The following is vyhat Mr. Fraser has on the subject, with 
 his citations of authorities : — 
 
 1 Eex V. Wakefield, 69 Annual Reg- § 198, that, by the law of Scotland, a 
 
 ister, 316, 47 Edin. Rev. 1,00, 2 Lewin, marriage nould not be set aside for any 
 
 279j 2 Townsend St. Tr. 112, 1 Deac. fraud not inToIying "a mistake in the 
 
 Crim. Law, 4; Turner's Nullity of identity of the person." 2 Townsend 
 
 Marriage Bill, 17 Hans. Pari. Deb. n. St. Tr. 150. The writer in the Edin- 
 
 g. 1133 ; Shelford Mar. & Div. 215 ; burgh Review aboye cited, after mak- 
 
 1 Eras. Dom. Rel. 234. The reason ing many well-considered observations 
 
 stated in the text for applying to Par- upon the subject of fraud as invali- 
 
 liament is the one assigned by Mr. dating the marriage contract, concludes 
 
 Peele, as shown in the place above his review of this case thus : " Upon 
 
 cited from the Parliamentary Debates, the whole, therefore, though there are 
 
 together with the further reason of the many difficulties in the question, we 
 
 delay of perhaps three years attendant incline to think that the marriage 
 
 upon a proceeding in the Ecclesiastical would not have been set aside in any 
 
 Court. Mr. Peele considered, that the court, either of England or Scotland." 
 
 facts, if proved before an English court, p. 107. But see contra, Irving Civ. 
 
 would be sufficient to authorize a sen- Law, 102, note. For some analogous 
 
 tence of nullity ; but the Scotch lawyer cases, see Townsend's State Trials, as 
 
 who was examined on the trial of the above cited. See also Field's Marriage 
 
 criminal case — this being a Gretna Annulling Bill, 2 H. L. Cas. 48; Hull 
 
 Green marriage between English par- v. Hull, 15 Jur. 710, 5 Eng. L. & Eq. 
 
 ties — was of the opinion, which ap- 589. 
 
 pears to have been erroneous, post, ^ Ante, § 188, 189, 190. 
 
 171 
 
§ 199 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 General Doctrine — Fraud and Force compared. — " Fraud, in 
 the constitution of the contract of marriage, renders it void. 
 Force implies physical constraint of the will ; fraud, some over- 
 ruling moral necessity, whereby a certain state of the will is 
 brought about, which would not have so been without deceit. 
 In both cases the result is the same, although the constraint 
 employed operates differently. ^ And as to both, morality and 
 law visit the deed with the same condemnation. It is the law 
 of Scotland, that a marriage brought about by false and fraudu- 
 lent representations is null. This doctrine was denied by Mr. 
 M'Neill at the trial of the Wakeiields ; but it will be found to 
 be sanctioned by various judgments of the court. 
 
 § 199. General Views — Cameron v. Malcolm. — " No attempt 
 will here be made to define what shall amount to fraud suflS- 
 cient to set aside the marriage, as no two cases on this subject 
 are alike. Lord Stair terms fraud hydra multorum capitum. 
 In Cameron v. Malcolra,^ a young lady, aged twelve years and 
 six months, the daughter of a proprietor in Fife, had gone 
 through a form of marriage with John Cameron, a young main 
 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 doubt the marriage would be 
 agreed to. The parties, some time after this, agreed to come 
 over from Fife to Edinburgh, and this they did together ; but 
 not a word was said of marriage, or of an intention to enter 
 into that contract. On arriving at Leith, Mrs. Malcolm, the 
 girl's mother, sent up her' servant-maid and a boy to Edin- 
 burgh, to put on fires, and prepare every thing for her recep- 
 tion ; but she proposed to keep the governess to go up in the 
 coach with herself and daughter. But, as the elder Cameron, 
 his wife, and son, had determined to get the marriage cele- 
 brated that night, they foresaw that the presence of the gov- 
 
 1 Voluntodi vim infert, qui fraude per- brings out the fraud which existed. 
 suadet, says Brower. It has been taken from the Session- 
 
 2 Cameron u. Malcolm, Mor. 12586 papers, as that in the dictionary makes 
 (1756). This statement of the case it seem entirely a mere squabble. 
 
 172 
 
CHAP. 21.] FRAUD, ERROE, DURESS. § 201 
 
 eruess in the coach would balk the scheme ; Mrs. Cameron 
 accordingly objected 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 suggestion, 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 liis father were sitting, 
 when young Cameron said that the girl had consented 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 parties 
 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 pro- 
 ceeded 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. 
 
 § 200. Cameron v. Malcolm, continued. — " The court were 
 all of opinion, with the exception of one judge, that there was 
 no marriage, as the whole proceeding was a fraudulent, deceit- 
 ful scheme to entrap a 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. 
 
 § 201. Niven's Case — Allan V. Young. — " Another case is 
 stated by Lord Pountainhall,^ thus : ' One Niven, a musician in 
 Inverness, is pursued for deceiving one of his scholars, a lass 
 of twelve years old, called Cumming, a minister's daughter, 
 and marrying her, and getting a country minister to do it, by 
 
 1 Reported also at p. 8935, Morrison's Note. 
 
 173 
 
§ 202 MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK III. 
 
 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. The same 
 doctrine was further confirmed by the case of Allan v. Young,i 
 which was the case of a declarator of marriage by a school- 
 master against a young woman. 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 ceremony, there being no 
 previous proclamation of banns, though a certificate thereof 
 had been purchased by the pursuer. The clergyman proved, 
 that he had taken her into another room, befoi-e the ceremony, 
 and satisfied himself that she understood the nature 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 glearly. 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. 
 
 § 202. Observations on the Cases — Youth — Mature Age. — 
 " These were all cases where the fraud was practised upon par- 
 ties wlio were certainly capable of marriage, but who, from 
 their youth, were peculiarly liable to be deceived. There are, 
 however, cases where, with regard to persons of mature age, 
 fraud in obtaining the consent to the contract has been held 
 sufiicient to annul the pretended marriage. The cases in which 
 this has been sustained are of this nature : The woman gener- 
 ally gets the man into some retired place, for the purpose of 
 carnal connection, and there, before this is allowed to pi'oceed, 
 she obtains from him a promise of marriage, and copula imme- 
 diately follows. She has, at the same time, two or three 
 witnesses stationed so as to hear the promise, but concealed 
 
 1 Allan V. Young, 9 Dec. 1773, Ferg. same effect in Shelford Mar. & Div. 134, 
 Eep. p. 37. See English cases to ihe 187, 214. 
 174 
 
CHAP. XI.] PBADD, ERROR, DURESS. § 204 
 
 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, tlie court 
 have refused, in such cases, to sustain it.^ 
 
 § 203. Further Views — Mistake as to the 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, 
 ricii or well natured, which were the inductives to his consent, 
 though he be mistaken therein, seeing it is not in the substan- 
 tials, 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 circumvention.' 2 And Mr. Pergusson 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 is violence : a consent impetrated by fraud and 
 deceit (^seduction') is as imperfect as that obtained by vio- 
 lence.'"* 
 
 § 204. Further of our own Law: — 
 
 Mistake as to the Person — Assumed Name. — So much for 
 the law of Scotland. To return to our own law : if a person 
 of bad character, to enter into a marriage, assumes the name 
 of a person of good character, and the other party does not 
 therefore marry the individual he Intends, the marriage is a 
 
 1 Barr v. Fairie, 12 Feb. 1766. See = Stair, 1, 9, 9, & 1, 10, 13, 3d para- 
 it in Sess. Papers, Arniston Collection, graph ; Ersk. 3, 1, 16. 
 vol. Ixxvii. and shortly noticed, 6 Sup. ' Ferg. Consist. Law, p. 107. 
 921. Harvey v. Inglis, 19 Feb. 1839. « Pothier Tr. Cent. Marriage, § 220 ; 
 
 1 Frag. Dom. Rel. 234-237. 
 
 175 
 
§ 205 MARRIAGE IMPERFECTLY CONSTIT?aTBD. [bOOK HI. 
 
 nullity.i But if he marries the one he intends, it is good, 
 though such one passes under an assumed name.^ In the 
 latter instance there is consent to take the individual with 
 whom the ceremony is performed ; in the former there is not 
 such consent. But perhaps this doctrine, while it seems to be 
 correct in principle and to be sustained by authority, is a little 
 shaken by a case which occurred in the early part of the 
 eighteenth century. It is the case of Eobert Peilding, other- 
 wise called Beau Feilding, who was indicted for polygamy in 
 marrying the Duchess of Cleveland, having alive another wife, 
 whose name before her marriage to him was Mary Wadsworth. 
 The facts of his first marriage were, that he wished to obtain 
 the hand of a certain rich widow whom he had never seen, and 
 that this Mary Wadsworth was .passed off upon him as being 
 the widow he meant to marry, wlfereupon he courted her with 
 great violence of passion, married her, then lost his love on 
 finding out the trick. No attempt was made on his trial to 
 show that, in point of law, the marriage was in any way made 
 invalid by the deception practised upon him ; he was convicted 
 by the jury, and escaped death by pleading the benefit of clergy. 
 Afterward (which is the more important fact in point of legal 
 authority), the Duchess of Cleveland obtained in the ecclesias- 
 tical court a sentence of the nullity of her marriage with him, 
 by reason of this pre-existing marriage.^ The reader will 
 however observe, that, assuming the law of this case to be cor- 
 rect, still Mr. Peilding did in fact marry the same woman 
 whom he courted, getting possession of the same flesh and 
 bones he professed to love, though she turned out not to be the 
 particular rich widow he supposed she was. 
 
 § 205. Continued — Doctrine of Fraud restated — Ignorance of 
 Law. — Tlie impetuous mind of Lord Brougham once led him to 
 utter, in the Court of Delegates, the following dictum : " 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 
 
 1 Rex u. Burton-upon-Trent, 3 M. 3 Feilding's Case, Burke's Cele- 
 & S. 537 ; Lord Stowell, in Heffer v. brated Trials connected with the Aris- 
 Heffer, 3 M. & S. 265. tocracy, 63, 78, which is the only report 
 
 2 Clowes V. Clowes, 3 Curt. Ec. 185, of the case before me. 
 191. 
 
 176 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 206 
 
 a specified manner, no marriage shall be held void merely upon 
 proof that it had been contracted upon false representations, 
 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 imposition which can avail to set aside 
 a contract of marriage knowingly made." ^ Thus we have, 
 from this distinguished person, words which set at naught all 
 that -has been said in the foregoing sections of this chapter, 
 except the last section. Let us, however, cleave to what of 
 this dictum is sound law ; while the remainder of it reminds 
 us, that to err is human. If the writer does not err, it is also 
 true, that, in all cases where the party entering into the form 
 of marriage gives no real consent, because the will is over- 
 powered by the arts of cunning, or the force of menace, or by 
 any other means, the marriage remains a nullity until, as it 
 sometimes happens, the will in a disenthralled condition affirms 
 the marriage. Therefore it has been held, that, if one know- 
 ing the law entrap another ignorant of it into a ceremony 
 valid in form^ before a magistrat'e or minister of the gospel, 
 under the representation of its not being binding, whicli repre- 
 sentation 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 the remark has been made that there may be extra- 
 ordinary cases in which such a marriage would be invalid after 
 consummation.^ 
 
 II. Error. 
 
 § 206. Doctrine stated. — Thus we have been led, in tracing 
 the law of fraud in marriage, to the consideration also, in the 
 last three sections, of the subject of error ; for, though the 
 cases mentioned in those sections are properly enough con- 
 sidered under the title of fraud, they embrace also the element 
 of error. If we look at this question of error in the light of 
 principle, we shall come to the following conclusion : Inasmuch 
 
 1 Swift V. Kelly, 3 Knapp, 257, 293. Jour. 191, 1 S. W. Law Jour. 167 ; 
 
 2 Clark V. Field, 13 Vt. 460. See Mount Holly v. Andover, 11 Vt. 226 ; 
 also Robertson v. Cowdry, 2 West. Law post, § 245. 
 
 VOL. I, 12 177 
 
§ 208 MABBIAGE IMPEBFECTLT CONSTITUTED. [BOOK III. 
 
 as there must be a consent in order to constitute marriage, if 
 there is such a mistake, in one or both of the parties, that the 
 formal consent given does not apply to the person with whom 
 the formal marriage is celebrated, then the marriage is a mere 
 nullity; but, if it does apply, then the marriage is good unless 
 fraud has entered into the matter of mistake, in such a way as 
 to render it invalid on this ground. 
 
 § 207. Substitution of one Person for another. — An illustra- 
 tion of mistake, or error, is where one person is substituted for 
 another. " This," remarks Chancellor Kent, " would he a 
 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 vitiate the contract." ^ Still, though it may be 
 difficult to imagine how a person intending to marry A could, 
 without a fraud being practised upon him, marry B, yet, if the 
 fact were established, there is no doubt the marriage would be 
 held 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.^ 
 
 § 208. Views of the Canonists- — The canonists, according 
 to Ayliffe, 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 person deceiving another." * Secondly, error of condi- 
 tion ; as, whfen 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 marries 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 
 
 1 2 Kent Com. 77. And see the 3 In Reg. v. MiUis, 10 CI. & F. 534, 
 cases of fraud in the name of the per- 785. 
 son, ante, § 204, 205. 4 See ante, § 204, 205. 
 
 ^ Stayte v. Farquhaxson, 3 Add. Ec. 
 282; ante, § 204, 205. 
 178 
 
CHAP. XI.] FRAUD, ERROR, DURfiSS. § 210 
 
 does not aifect the validity of the marriage. " Nay," adds our 
 author, " the canonists ar^ 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." ^ 
 
 § 209. Further Suggestions — False Hepresentations through 
 Mistake — Caution — Injury suffered. — It may be well for the 
 reader, who is investigating this subject, to look through those 
 cases in which courts of equity set aside contracts other than 
 matrimonial for mistake, -^ that is, for error, — and those cases 
 in which courts of law hold a like doctrine where there is an 
 attempt to enforce the contract. Thus, a vendor, who makes 
 a positive representation about the property, — a case truly of 
 error, if he believes the representation he makes, — is said to 
 be guilty of fraud, equally whether he speaks in ignorance of 
 the facts, or whether he wilfully deceives.^ Yet this doctrine 
 has its limits.^ And — here we come again into pure fraud — 
 the misrepresentation, or the error of fact, must be about a thing 
 which is material, and must be one upon which the party 
 entering into the contract really relied ; as also, supposing 
 there to be no weakness of mind, the party deceived must have 
 used reasonable caution ; and he must have suffered an injury.* 
 
 III. Duress. 
 
 § 210. General Doctrine. — Where a Consent in form is 
 brought about by force, menace, or duress, — a yielding of the 
 lips, but not of the mind, — it is of no legal effect. This rule, 
 applicable to all contracts, finds no exception in marriage.^ 
 
 1 Ayl. Earer. 362, 363 ; ante, § 179. v. Harkness, 26 Ga. 362; Peter v. 
 
 2 Miner v. Medbury, 6 Wis. 295. Wright, 6 Ind, 183; Hill v. Bush, 19 
 And see Gale v. Gale, 19 Barb. 249 ; Ark. 522 ; Davidson v. Moss, 5 How. 
 Story V. Norwich & Worcester Rail- Missis. 673, 687 ; Moss ^. Davidson, 1 
 road, 24 Conn. 94. Sm. & M. 112, 144; People v. Cook, 4 
 
 3 Gatling v. Newell, 9 Ind. 672; Selden, 67. 
 
 Payne v. Smith, 20 Ga. 654. 5 Ante, § 116, 205 ; 1 Woodd. Lect. 
 
 * Swift V. Pitzhugh, 9 Port. S9 ; 253; No. 39 Am. Jurist, 29; Shelford 
 Bigby V. Powell, 25 Ga. 244; Collier Mar. & Div. 213. 
 
 179 
 
§ 211 MARRIAGE iMPERPECTLT COXSTITLTKU. [BOOK HI. 
 
 Xeither apparentlj do the legal principles goTemiDg the ques- 
 tion of duress operate diflFerently, in their application to mar- 
 riage, from what thej do in their application to other contracts 
 generally.^ 
 
 § 211. Qnalitry of the Mind acted on — Degree of the Force. — 
 Let US, however, consider the matter of duress in its special 
 relation to marriage. The obserTation has been made, that, 
 in order to avoid a marriage yielded to through fear, the fear 
 must be such as may happen to a man or woman of good 
 courage and resolution, and such as imports danger either of 
 death or of bodily harm.- But probably the better view is, 
 that this question is one of evidence : that, since matrimony 
 must be contracted with fuU and free consent, if a woman 
 void of courage and resolution is in such a state of mental 
 terror 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 imminent danger.* And the cases most likely to arise 
 are where a woman of weak and irresolute mind, or a young 
 and timid girl possessed of a fortune to be sectired, 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 Har- 
 ford r. Morris, decided on the double ground of fraud and 
 duress ; where one of the guardians of a young school-^irl, 
 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 wiU. The marriage was held to 
 be void.5 The case, already cited,* of Wakefield, who married 
 Miss Turner, was also thought to contain some of the ingre- 
 dients of force, and it is in point."^ 
 
 1 Knth. Inst. b. 1, c xr. For the * Harford v. ilorris, 2 Hag. Con. 
 general principles of the law of duress, i2-3, i Eng. Ec. 575, and see note at 
 see Cliitty on Contracts, 206-209 ; Story the end of the case. 
 
 on Contracts, § 67-98; Xo. 39 Am. « Ante, § 196. 
 
 Jurist, 23-29. ' See the act of Parliament annnl- 
 
 2 AtL Parer. 3o2. ling the marriage, Shelford ilar. & Dir. 
 ' Pulwood's Case, Cro. Car. 4S2, 4SS, 215, note. See also Portsmouth v. 
 
 493. Portsmouth, 1 Hag. Ec. 35-5, 3 Eng. 
 
 < And see ante, § 195. Ec. l-5i, which was a case of fraud and 
 
 180 
 
CHAP. XI.] FRAUD, ERROR, DURESS. § 213 
 
 § 212. Marriage while under Arrest. — If a man, arrested on 
 a bastardy process as the putative fatlier of a child of which the 
 woman procuring the arrest is pregnant, marries her ; ^ even 
 though, being unable to procure bail, he does it purely to avoid 
 being imprisoned, and compelled to contest tlie charges he has 
 made oath to ; he cannot afterward, on learning he could have 
 made a successful defence, have the marriage set aside as pro- 
 cured by duress.^ Perhaps the result would be otherwise, if 
 the arrest were under a void process ; and a doubt may be 
 entertained, whether it would not be, if shown to be both 
 malicious and without probable cause.^ 
 
 § 213. Continued. — The author has been favored with a 
 case, decided by one of the judges of the Supreme Judicial 
 Court of Massachusetts, wherein the doctrines of the last sec- 
 tion seeni to be fully sustained. As reported by H. J. Puller, 
 Esq., counsel for the libellant, it is as follows : — 
 
 " Libel to annul a Marriage alleged to have been procured by 
 Fraud and Duress. — Abram A. James v. Julia B. Smith. 
 The parties were respectively paupers of the towns of West 
 Bridgewater and Raynham. The libellant alleged in his libel, 
 that he was unlawfully arrested by a deputy sheriff for the 
 county of Plymouth, at the instance of two of the selectmen of 
 E-aynham, and taken to the office of George W. Bryant, Esq., 
 a magistrate within and for the county of Plymouth, and from 
 thence to the house of said Julia B., where the marriage cere- 
 mony was performed by said Bryant, — that at the time of his 
 arrest the officer had no warrant or precept whatever, nor 
 during the time he was in the official custody, — that the 
 selectmen aforesaid threatened to shut him 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 hundred dollars, all of 
 which threats 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 
 
 lunacy in combination. And see ante, Story Cont. § 88, 89 ; No. 39 Am. 
 
 § 175. Jurist, 23, 24; Soule v. Bonney, 37 
 
 1 Jackson v. Winne, 7 Wend. 47 ; Maine, 128 ; Barton v. Morris 15 
 
 Williams v. Tlie State, 44 Ala. 24. Ohio, 408 ; Collins v. Collins, 2 Brew- 
 
 2 Scott V. Shufeldt, 5 Paige, 43. ster, 615. 
 
 3 See Reg. v. Orgill, 9 Car. & P. 80 ; 
 
 181 
 
§ 214 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 deprived of his liberty, and while surrounded 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 slierifip and his associates, the 
 marriage ceremony was performed, — 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 evidence were substantially those alleged in 
 the libel. The decree of the court was as follows : — 
 
 Form of Decree of Nullity. — ''Plymouth ss. May Term, 1861, Supreme Judi- 
 cial Court. In the matter of Ahram A. James v. Julia B. Smith, praying for a 
 decree of this court that a certain marriage soletnnized between the said par- 
 ties 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 thereto the court find, that the same was obtained by duress 
 and illegal restraint ; this court does order and 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." l 
 
 IV. Some Principles common to the Three Impediments. 
 
 § 214. Who take Advantage of the Wrong — Waiving it — 
 Non-consummation. — There are various principles applicable 
 alike to fraud, error, and duress. Thus we may presume, that 
 the party guilty of the wrong would not be permitted so far to 
 take advantage of it, as to maintain a suit of nullity solely on 
 that ground.2 The other party may, if he chooses, waive his 
 objection, and thereby render the marriage good. Therefore 
 a voluntary cohabitation, after knowledge of the fraud or error, 
 or after the cause of fear is removed, will cure the defect.^ 
 The cases are not distinct as to the circumstances under 
 
 1 James v. Smith, Supreme Judicial ' Ayl. Parer. 361 ; Scott v. Shufeldt, 
 Court of Mass., May Term, 1861. 5 Paige, 43 ; 1 Fras. Dora. Rel. 229 ; 1 
 
 2 See Tlie State v. Murphy, 6 Ala. Burge Col. & For. Laws, 137 ; Hamp- 
 V65. stead v. Plaistow, 49 N. H. 84, 98. 
 
 182 
 
CHAP. XI.] PEA0D, ERROR, DURESS. § 215 
 
 which, in fraudulent marriages, cohabitation with knowledge 
 of the fraud will bar the right to have the marriage set aside ; 
 but doubtless the matter must be referred to general principles 
 of law relating to such questions, as applied in other cases as 
 well as in these. ^ We may observe, that the fact of the mar- 
 riage not having been consummated has in many instances 
 powerfully influenced the court in favor of setting it aside. 
 When the parties are equally in the wrong, the court, plainly, 
 will lend its aid to neither.^ 
 
 § 215. Void or Voidable. — In a certain aspect, therefore, the 
 marriages considered in this chapter are voidable, rather than 
 void ; though generally they are spoken of as void. Thev are 
 good at the election of the injured party, who on being set free 
 from the influence of the fraud, error, or duress, may then 
 give a voluntary consent ; and the other party cannot inter- 
 pose the objection of his own wrong, and say that the consent 
 was not mutual. And Rogers has treated of these marriages 
 under the head of voidable.^ But until such innocent party 
 has consented, the transaction is incomplete, and the cere- 
 mony is to be regarded as a mere nullity. This view is 
 sustained as well by the authorities* as by reason. But on 
 this question of void or voidable,- in respect to such marriages, 
 the reader is particularly referred to earlier sections of the 
 present volume.^ j 
 
 1 See Scott u. Shufeldt, supra ; Clark 3 Rogers Ec. Law, 2d ed. 643. 
 
 V. Field, 13 Vt. 460 ; Morris v. Morris, * Respublica v. Hevice, 3 Wheeler 
 
 Wright, 630 ; Miller's Appeal, 6 Casey, Crim. Cas. 505, 507 ; Tarry v. Browne, 
 
 478;Gilmerj;.Ware, 19Ala. 252; Gutz- 1 Sid. 64; Fulwood's Case, Cro. Car. 
 
 wilier V. Lackman, 23 Misso. 168 ; Gal- 482, 488, 493 ; Shelford Mar. & Div. 
 
 loway V. Holmes, 1 Doug. Mich. 330 ; 212, note ; 2 Kent Com. 76 ; 1 Burge 
 
 Thompson v. Lee, 31 Ala. 292. Col. & For. Laws, 137. 
 
 2 Westfall u. Jones, 23 Barb. 9 ; 6 Ante, § 94^96, 105 et seq., 136-142, 
 White V. Crew, 16 Ga. 416 ; Miller v. 153. 
 
 Marckle, 21 lU. 152; Pinckston ^. 
 Brown, 3 Jones Eq. 494. 
 
 183 
 
§ 218 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 CHAPTER XII. 
 
 IMPERFECT CONSENT TO A MARRIAGE OTHERWISE GOOD. 
 
 1216, 217. Introduction. 
 218-228. The Consent essential to Marriage. 
 
 229-232. The Consent how given in Absence of a Specific Requirement of Law. 
 233-245. Consent in Form but not in Fact. 
 246-252. Further Views of Consent^er Verba de Prwsenti. 
 253-265. Consent per Verba de Fiituro cum Copula. 
 266, 266 a. Consent by Habit and Repute. 
 
 267. Effect of this Impediment of Imperfect Consent. 
 
 § 216. Scope of the Chapter. — We shall assume, through 
 the pages of this chapter, that the parties are capable in law of 
 intermarrying, and that there is no want of obsei'vance of 
 forms, also that there is no mental incapacity, and no pressure, 
 such as of fraud, duress, or the like, upon the will, — then the 
 inquiry will be, whether or not there has been such a consent 
 in fact as is essential to the constitution of marriage. At the 
 same time, as the form and the substance are necessarily 
 somewhat combined, we shall discuss the question of form, if 
 such it may be called, in its application to marriages in those 
 localities where there is no statutory or other like provision 
 rendering specific ceremonies essential. 
 
 § 217. How the Chapter divided. — The order of the discus- 
 sion will be as follows : I. The Consent essential to Marriage ; 
 II. The Consent how given iii the Absence of a Specific 
 Requirement of Law ; III. Consent in Form but not in Pact ; 
 IV. Further Views of the Consent ^er Verba de Prcesenti ; V. 
 Consent fer Verba de Futuro cum Copula; VI. Consent by 
 Habit and Repute ; VII. Effect of this Impediment of Imper- 
 fect Consent. 
 
 I. The Consent essential to Marriage. 
 
 § 218. General Doctrine. — We have seen, that the law 
 compels no one to assume the matrimonial status.^ Therefore 
 1 Ante, § 12, 93, 94. 
 
 184 
 
CHAP. XII.] IMPERFECT CONSENT. § 220 
 
 every marriage requires for its constitution a consent of the 
 parties. Tlie consent must be mutual ; for, as tliere cannot 
 be a husband without a wife, one of them cannot be married 
 without the other.i This mutual consent is in fact a contract, 
 differing not essentially from other contracts.^ It is that cir- 
 cumstance without which the status of marriage is never 
 superinduced upon the parties. And by the law of nature,^ 
 by the canon law prior to the Council of Trent,* perhaps by 
 the law of England as it stood before the passage of the first 
 marriage act,^ by the law of Scotland,^ and by the laws of sev- 
 eral of the United States, nothing need be added to this simple 
 consent to constitute perfect marriage. 
 
 § 219. Continued — Statutory Formalities added. — Even 
 where a statute requires the marriage to be attended with 
 specified formalities, in order to its validity, this mutual con- 
 sent of the parties is no less essential. The forms are not a 
 substitute for it. They are but methods of declaring and 
 substantiating it ; having reference to the matter of publicity, 
 or evidence.'' If they are gone through with, without the 
 added consent, the marriage is a nullity, as regards both the 
 parties and third persons.* 
 
 § 220. Continued — Illustrations from the Scotch Law — Why. 
 — The earlier chapters of the present book furnish illustrations 
 of marriage invalid, though prescribed forms have been com- 
 plied with, by reason of insanity, fraud, and the like ; but, 
 where no specific forms enter into the question- as a sort of 
 estoppel to parties denying their consent,^ the doctrine (which 
 is the matter chiefly to be considered in the present chapter) 
 
 1 1 Fra8. Dom. Eel. 149, 184, 187, v. Philadelphia, 1. La. An. 98; Succes- 
 
 212 ; 2 Burn Ec. Law, Phillira. ed. 434 ; sion of Prevost, 4 La. An. 247, 349. 
 
 Ayl. Parer. 361 ; True v. Eanney, 1 ^ Commonly called Lord Hard- 
 
 Fost. N. H. 52. wicke's Act, 26 Geo. 2, c. 33, a. d. 
 
 ^ Dalrymple v. Dalrymple, 2 Hag. 1753. 
 
 Con. 54, 4 Eng. Ec. 485, 508 ; Shelford <> Dalrymple v. Dalrymple, supra ; ' 
 
 Mar. & Div. 6 ; Eerlat v. Gojon, Hop- 1 Pras. Dom. Eel. 124 ; Wright v. 
 
 kins, 478, 493. "Wright, 15 Scotch Sess. Cas. 767. 
 
 ■> Lindo «. Belisario, 1 Hag. Con. ' Shelford Mar. & Div. 5, 6. 
 
 216, 4 Eng. Ec. 367, 374 ; Dumaresly 8 Mount Holly v. Andover, 11 Vt. 
 
 V. Fishly, 8 A. K. Mar. 368 ; 2 Kent 226 ; Ferlat v. Gojon, supra ; Kespub- 
 
 Com. 86. lica o. Hevice, 3 Wheeler Crim. Cas. 
 
 * Dalrymple v. Dalrymple, supra; 505. 
 
 Eeg. V. MiUis, 10 CI. & F. 534 ; Hallett ^ Dalrymple v. Dalrymple, 2 Hag. 
 
 V. CoUins, 10 How. U. S. 174; Patton Con. 54, 4 Eng. Ec. 485, 609. 
 
 185 
 
§ 222 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 is very barren of illustrations in the English and American 
 books. The reason of this barrenness is, that marriages in 
 England are not now valid except when the forms are added, 
 that the same is true also in a part of the States of this Union, 
 and that everywhere in this country the forms are so common 
 as to cause marriages without them to be exceedingly rare. 
 We shall be obliged, therefore, in the discussion of the present 
 chapter, to draw our learning mainly from the fountains of 
 Scotch law. In Scotland, informal marriages have always 
 been common ; and in them the question of consent is usually 
 the only one which can be raised, touching their validity. 
 Consequently the Scotch judicial records contain numerous 
 decisions relating to this doctrine ; and, as the doctrine 
 appears to be identical there and here, our illustrations from 
 the Scotch books will be pertinent. 
 
 § 221. Consent to what — What is Marriage? — When parties 
 come together, and in words agree to be husband and wife, 
 the law settles what the terms of the agreement are ; for it 
 defines the duties, the nature, and the duration of the mar- 
 riage relation. But suppose, that, instead of saying to each 
 other, — " We are to be henceforward husband and wife," 
 they use some other words, such as, — " We will beget 
 children ; and, when we are tired of this bargain, we will 
 dissolve it; " or, — " We will be as husband and wife to each . 
 other for ten years;" and the like, — what is the effect of 
 such an agreement ? or, in other words, — where the parties, 
 instead of agreeing in express language to be husband and 
 wife, specify what they agree to do, and how they agree to stand 
 to each other, how much and what must be said and done to 
 superinduce the marriage status ? 
 
 § 222. Continued — Indian Marriages — Divorces allowed, &c- 
 — Where, within principles to be more particularly stated in 
 other chapters,^ parties are married upon territory occupied and 
 ruled by our North American Indians, and then remove into • 
 one of our States, the marriage is held to be good, notwith- 
 standing by the Indian law they might divorce themselves by 
 a mutual separation. So, in all Christian countries, marriage 
 is regarded as a thing of international law ; and parties 
 1 Post, § 371 et sea- ; Vol. H. § 754. 
 
 186 
 
CHAP. XII.] IMPERFECT CONSENT. § 223 
 
 married in a locality where judicial divorces are allowed are 
 deemed also to be married when they go into a locality 
 where such divorces are forbidden. Yet, to a certain extent 
 and in a certain sense, the marriage which is celebrated 
 under laws allowing of divorces is, in the terms of the con- 
 tract, a different thing from the, marriage which is celebrated 
 where no liberty of divorce is given by law. Likewise, if 
 parties entering into a marriage where by law there could 
 be no divorce, should specify, in articles of agreement, that 
 they should themselves be permitted to divorce each other 
 at pleasure, there is reason to presume — probably there is 
 no decision on the point — that the marriage would be held to 
 be good, and the collateral agreement would be treated as a mere 
 nullity, being a thing done contrary to the policy of the law.^ 
 Yet there must be somewhere the line dividing cases in which 
 the entering Into a forbidden relation between a man and 
 a woman should be deemed no marriage ; and cases in which, 
 so far as the cpntem plated relation was contrary to the law, 
 the violative part of the agreement should be held null, while 
 the main thing, the marriage, should be held good. 
 
 § 223. Continued — Indian Marriages. — There is a Missouri 
 case, in which the question was, whether certain children, 
 born in an Indian country of an Indian woman with whom 
 the white father cohabited there, afterward bringing them 
 away but leaving the mother behind, and recognized in Mis- 
 souri as legitimate, were, in law, his legitimate offspring ; and 
 this question depended on another, namely, whether the law 
 deemed the father to have been the husband of the mother. 
 The court below instructed the jury, that, unless the agree- 
 ment between this white man and this Indian woman was 
 " to live tlieir whole lives 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 
 when the case went thence before the higher tribunal, this 
 instruction was, by it, held to be wrong. - It was too restric- 
 tive ; it would operate to nullify all Indian marriages. Said 
 Napton, J. : " In most of the tribes, perhaps in all, the under- 
 
 J See Barnett u.Kimmell, 11 Casey, 13 ; Harrod v. Harrod, 1 Kay & Johns. 
 4, 16. 
 
 187 
 
§ 224 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 standing of the parties is, that the husband may dissolve the 
 contract at his pleasure." Again : " It is plain, that, among 
 the savage tribes on this continent, 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." ^ Still, on the other 
 hand, there is in a North Carolina case an intimation against 
 the validity, in a Christian state, of a marriage of this sort,^ 
 and indeed it is difficult to draw the lines between cases 
 of this general description, and say where marriage begins ahd 
 where it ends. Not all sexual unions between uncivilized peo- 
 ple can be marriages. "What, then," asked Perkins, J., in 
 an Indiana case, " 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 authority of the 
 State. Nothing short of this is marriage." And this utter- 
 ance is followed by an intimation against the marriages we 
 are contemplating in this section.^ 
 
 § 224. Continued — Agreeing to "live as Man and 'Wife" — 
 Temporary Arrangement. — In a California case it was held, 
 that living together " as man and wife " is not marriage, neither 
 is an agreement so to live a contract of marriage, especially 
 where from the facts the arrangement appears to have been 
 only temporary ; and, at the death of the man in such a case, 
 his concubine cannot inherit as a wife. The question arose 
 upon a demurrer to the complaint of the plaintiff woman, who, 
 on the death of the man, brought her suit for a share of his 
 estate. The complaint — that is, the declaration — alleged, 
 " that, on the day and year first above mentioned, while 
 engaged in the business aforesaid [keeping a restaurant] W. 
 J. Cady made proposals of marriage to her, which proposals 
 she accepted ; and, in accordance with his expressed wishes, 
 
 1 Johnson v. Johnson, 30 Misso. Y2, 2 xhe State v. Ta-cha-na-tah, 64 N. 
 84, 86, 88 ; referring to Wall v. Wil- C. 614. 
 
 liamson, 8 Ala. 48 ; Wall v. Williams, 3 Roche u. Washington, 19 Ind. 53, 
 11 Ala. 826 ; Morgan v. McGhee, 5 57. 
 Humph. 13. 
 
 188 
 
CHAP. XII.] IMPERFECT CONSENT. § 225 
 
 consented to relinquish her then business, sell out her prop- 
 erty, and live with him as his true and lawful wife ; that, in 
 obedience to this request on his part, she did abandon her 
 business, 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 conducting herself as a true, faithful, and affectionate 
 wife should do." And the judge, sustaining the demurrer, 
 observed : " Prom the character of the allegations, and the 
 pt-egnant . 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 connection one to which 
 it would be a perversion of language to apply the name of 
 marriage." ^ 
 
 § 225. Continued — Observations. — The foregoing decision 
 by the Missouri tribunal appears to be just when we reflect, 
 that to distinguish between Indian marriages, and marriages 
 in more civilized communities where divorces are more freely 
 allowed than under our own laws, would not be easy ; indeed, 
 it would require the drawing of lines quite too fine for practical 
 use. And this decision, though not only in conflict with the 
 others mentioned in the same section, but apparently so with 
 the California one, likewise may be right, and the California de- 
 cision likewise right. The Indian nations are in law foreign to 
 our own ; and there is a difference in law between allowing a 
 foreign marriage to be valid, and according validity to a like 
 marriage at home. We have treaties with the Indian nations ; 
 and, since marriage is jus gentium, our courts ought, if possible, 
 so to press the legal principles governing their decisions as to 
 hold to be good the marriage of those people with whom we 
 maintain international relations. But there is grave doubt 
 whether the California adjudication should be elsewhere fol- 
 lowed. If, practically, a man and woman recognize each 
 other as, in substance (to use an expression which, at least, 
 can be understood), husband and wife, though they attempt 
 to restrict the operation of the law upon their relation, public 
 
 1 Letters v. Cady, 10 Cal. 533, 584, 587. And see Jewell i>. Jewell, 1 How. 
 U.S. 219.' 
 
 189 
 
§ 226 MABBIAGE IMPEEFECTLY CONSTITUTED. [BOOK IH. 
 
 policy, the peace of the community, and the good order of 
 society demand, that the law should hold them to be married 
 persons, bound by all the laws pertaining to marriage, unless 
 some statute compels a contrary decision. 
 
 § 225 a. Continued — Mormon Marriages. — If a man enters 
 into a valid marriage, and then enters into a second one while 
 the first subsists, the second marriage, though celebrated in a 
 country where polygamy is allowed, and valid at home, will 
 not be tolerated in any country in which polygamy is forbidden.^ 
 But if the first marriage takes place in a country where 
 polygamy is allowed, is it, while good at home, good else- 
 where ? The English Divorce Court, having before it a mar- 
 riage of this sort, celebrated between Mormons in Utah, held 
 that it was not a marriage, within the meaning of the law 
 giving it a jurisdiction to dissolve marriages. "I conceive,"* 
 said Lord Penzance, " that marriage, as understood in Chris- 
 tendom, may, for this purpose, be defined as the voluntary 
 union for life of oue man and one woman, to the exclusion of 
 aU others." In the present instance, all others were not, by 
 the terms of the contract, to be excluded ; therefore the con- 
 tract did not constitute the parties husband and wife, within 
 the meaning of the English law.^ " A counsellor of the United 
 States proved," in this case, says the Report, " that a marriage 
 by Brigham Toung, in Utah, if valid in Utah, would be recog- 
 nized 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 adjudications of our own on the subject. 
 
 § 226. Continaed — Union to procreate and bring up Children 
 — Duration of it. — Lord Stowell says, in terms the general 
 correctness of which cannot be doubted, 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 supposition. But when two persons agree 
 
 1 Post, § .372, 376. 2 Hyde v. Hyde, Law Sep. 1 P. & 
 
 M. 130, 133. See post, § 372, note. 
 
 190 
 
CHAP. XII.] IMPERFECT CONSENT. § 227 
 
 to have that commerce 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 institutions, might safely be presumed to be, as 
 it is popularly called, a marriage in the sight of God." ^ And 
 perhaps we cannot object to a decision which holds, that a 
 written instrument between 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. 
 Yet a mere understanding that they might divorce each other 
 at pleasure, whether the understanding was written or verbal, 
 should certainly not be construed to prevent the status of 
 matrimony from attaching to them. Of course, an agreement 
 of this sort between the parties would be void ; but not unfre- 
 quently the courts hold to be void some contract entered into 
 at the time of the marriage, while the sufiSciency of the mar- 
 riage itself is not denied. 
 
 § 227. Nature of the Consent — Present, not Future — Future 
 foUowed by Copula. — The consent essential to marriage must 
 contemplate a present assumption of the status, in distinction 
 from a mere future union .^ The agreement of future mar- 
 riage is termed espousals de future, or a contract per verba de 
 future ; while the agreement which superinduces the status is 
 termed espousals de prcesenti, or a contract per verba de proe- 
 senti. Swinburne illustrates the one as occurring 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 other, 
 where the man says to the woman, "I' do take thee to my 
 wife," and she replies, " I do take thee to my husband." * 
 When, as further on will appear, a contract of future marriage 
 exists, and the parties have sexual intercourse, the law usually 
 presumes the intercourse lawful, the parties having changed 
 their future into a present consent, making themselves thereby 
 husband and wife. Hence it is said, that marriage may be 
 
 i Lindo V. Belisario, 1 Hag. Con. 3 x Fras. Dom. Eel. 149. 
 216, 4 Eng. Ec. 367, 374. i Swinb. Spousals, 2d ed. 8 ; 2 Burn 
 
 2 Randall's Case, 6 N. Y. City Hall Ec. Law, Phillim. ed.455 e; Brown v. 
 Recorder, 141, 152. Brown, 13 Jur. 370. 
 
 191 
 
§ 229 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 ■ contracted per verba de prasenti merely, or per verba de futuro 
 cum copula.^ 
 
 § 228. The Consummation. — But the copula is no part of 
 the marriage ; it only serves, to some extent, as evidence of 
 marriage.2 A maxim of the civil law, equally also of the 
 ecclesiastical, of the common, indeed of all la\^ governing the 
 subject, is, Consensus, non concubitus, facit matrimonium.^ 
 Hence when parties, capable of intermarrying, agree to present 
 marriage, the matrimonial relation is made thereby complete, 
 and what is sometimes called the consummation adds nothing to 
 it. This is true everywhere ; subject to the qualification, that 
 in some countries there are statutes requiring • the addition of 
 specified ceremonies and forms ; but the copula gives the 
 marriage nowhere any additional strength.^ 
 
 II. The Consent, how given in the Absence of a Specific Require- 
 ment of Law. 
 
 § 229. General Doctrine. — In the next chapter will be con- 
 sidered the question, whether, under the common law, and in 
 States where the statutory forms are not expressly declared to 
 be exclusive of all others, any thing more, or what more, than 
 the consent treated of in this chapter is required to constitute 
 mai-riage. But everywhere, as respects every thing except the 
 formalities to be treated of there, no particular form for ex- 
 pressing the consent is necessary. Nothing more is needed 
 than that, in language which is mutually understood, or by 
 any thing declaratory of intention, the parties accept of each 
 other as husband and wife.^ And Swinburne lays down the 
 doctrine, that, if the words, do not of their natural meaning or 
 by common use " conclude matrimony," yet, if the parties 
 intend marriage, and their intent sufficiently appears, " they 
 are inseparable man and wife, not only before God, but also 
 
 1 Lord Cottenham, in Stewart v. ^ Lindo v. Belisario, 1 Hag. Con. 216, 
 Menzies, 2 Eob. Ap. Cas. 547, 591; 4 Eng. Ec. 367, 374 ; Patrick w. 'Patrick, 
 post, § 253. 3 PhHlim. 496 ; Jackson v. Winne, 7 
 
 2 Dumaresly v. Eishly, 3 A. K. Mar. "Wend. 47 ; Bumaresly v. Fishly, 3 A. 
 368, 372; Jackson v. Winne, 7 Wend. K. Mar. 868; Walton ;;. Rider, 1 Lee, 
 47. 16, 5 Eng. Ec. 289 ; Potier „. Barclay, 
 
 3 Dalryraple v. Dalrymple, 2 Hag. 15 Ala. 439 ; Graham's Case, 2 Lewin, 
 Con. 54, 4 Eng. Be. 485, 489; Shelford 97 ; The State v. Patterson, 2 Ire. 346. 
 Mar. & Div. 5-7. 5 i Pras. Dom. Kel. 145. 
 
 192 
 
CHAP. XII.J IMPERFECT CONSENT. § 231 
 
 before men." ^ The consent may be either verbal ^ or written ; 
 and, though there was no ceremony, if the parties merely 
 lived together as husband and wife for many years, they may 
 be deemed in law to be married.^ In Scotland, the question 
 has most frequently arisen where the consent was in writing.* 
 The simplest form of writing is sufficient.^ 
 
 § 230. Consent by Interchange of Letters. — There seems to be 
 no good reason why an agreement of marriage in prcesenti, 
 like the agreement of marriage in futuro, or any other con- 
 tract, may not be made by interchange of letters through the 
 post-office. Eraser admits that many among the canonist 
 commentators hold this to be so ; according to whom, there- 
 fore, a perfect marriage may be contracted without the parties 
 even seeing each other, equally as without consummation. 
 But he considers the weight of Scotch authority to be against 
 this sort of marriage. He cites Mr. Clerk, in the case of Dal- 
 rymple, who, in testifying to the Scotch law of marriage, said, 
 that, " supposing a marriage should be constituted without 
 either ceremony or consummation, and by mere verbal expres- 
 sions of consent, yet, if the words are not used, eo intuitu, of 
 making and constituting a marriage de proesenti, they are 
 ineffectual ; and the same is the case if the other party does 
 not join in expressing the consent to marriage de proesenti. 
 The consent on both sides ought to be unequivocally expressed, 
 and at the same time."^ Also, " if a man were to write such 
 declarations as those referred to, and were to send them to a 
 woman in a post letter, this would not constitute a marriage, 
 though it would afiford evidence that a marriage had ante- 
 cedently been constituted." ^ 
 
 § 231. Continued. — We cannot fail to notice, that the case 
 
 1 Swinb. Spousals, 2d ed. 87. comes before me, and declares tliem- 
 
 2 1 Fras. Dom. Rel. 145. selves to be both single persons, and is 
 ^ Hicks V. Cochran, 4 Edw. Ch. 107. nowmareyed by the way of thee Church 
 * 1 Fras. Dom. Rel. 147. of Scotland, as day and det abuve men- 
 5 lb. The following (ib. p. 148) not tioned by me. 
 
 very learned production is a specimen David M'Farson. 
 
 of the Gretna Green marriages : C. B. Blount. 
 
 " Gritnay Green, June 10th, 1786. E^'^''"- ^^^ Wyche." 
 
 " This is to sertfay to all persons, 6 2 Hag. Con. App. 109. 
 
 that may be scurned, that Charles ^ 2 Hag. Con. App. 108; 1 Fras. 
 
 Blount, from Salisburey, and Elisbith Dom. Rel. 155, 156. 
 
 Ann Wyiche, from the same plese, both 
 
 VOL. I. 13 193 
 
§ 232 JIABRIAGE IMPEBFECTLT CONSTirUTED. [BOOK m. 
 
 put by Mr. Clerk is one of a mere proposition made by one 
 party, and not accepted by the other; which, according to 
 common principles, would not amount to a mutual consent, or 
 contract. But where a man sends to a woman a proposal of 
 marriage in prtesenti; and, not withdrawing it, receives her 
 answer accepting it ; there is a concurrent consent, at the same 
 instant, of the two minds to the same thing. And Lord Hen- 
 derland, a Scotch judge, in a manuscript case also cited by 
 Fraser, seems to take ground even a step further in advance. 
 The letters, he said, " did not, indeed, contain any express dec- 
 laration of marriage; but they could not, in common sense, 
 be attributed to any purpose but that of intending a marriage, 
 and what diflFerence made it whether a person wrote, ' I am 
 your husband,' or signed ' your husband,' at the bottom of the 
 letter. The cases of Arnot, Loup, McCarter, Miss Murray, 
 were all cases of marriage so made. It signified nothing that 
 there was no writing on her side ; for her course of acceptance of 
 his letters icoidd bind her." ^ Letters may be, in Mr. Eraser's 
 opinion, important evidence of marriage ; and he tells us, that, 
 in a number of cases, marriages have been declared chiefly on 
 their authority .^ By Swinburne the doctrine is broadly laid 
 down, that this relation may be entered into by letter.^ This, 
 therefore, we should receive as the better common law doc- 
 trine ; and we may even doubt, whether Mr. Fraser is correct 
 in his view of the law of Scotland. 
 
 § 232. Continiied. — It is plain, that, in order to make a 
 marriage by letter good if the parties are in different countries, 
 there must be no impediment to the two intermarrying recog- 
 nized by the laws of either country. Plainly, also, if one of them 
 is in a country in which marriage is good only when formally 
 solemnized, and the other is in a country in which it is good 
 entered into by letter, the courts of neither country can hold the 
 marriage sufiicient, where only letters pass. Obviously the 
 courts of the country in which such marriages are not deemed 
 good cannot ; but the fact that they cannot, shows also that the 
 
 1 Inglis V. Robertson, 1 Fras. Dom. be regarded rather as evidencing, than 
 
 Rel. 157, A. D. 1786. The case in which constituting, the marriage, 
 these observations occurred, howerer, - 1 Fras. Dom. Bel. 155, 158. 
 was one wherein copnla had actnallj ' Swinb. Sponsals, 2a ed. 162, 181, 
 
 taken place; and so the letters might 183. 
 
 194 
 
CHAP. XII.] IMPERFECT CONSENT. § 233 
 
 courts of the other country cannot. Because, since the laws 
 of no country can operate to change the status of a person who 
 is neither in it in fact nor domiciled in it, if the tribunals of 
 the country allowing marriage by letter should undertake to 
 pronounce the person within their jurisdiction married, not 
 pronouncing, since they could not, the other to be married 
 also, their judgment could not have this effect ; inasmuch as, 
 in the nature of the marriage relation, no man can be a hus- 
 band unless he has a wife ; no woman a wife, unless she has 
 a husband. Therefore, in a Scotch case, the man being in 
 France, where informal marriages are not valid ; and the 
 woman in Scotland, where they are valid ; the court denied 
 that letters could make them husband and wife. And the 
 Lord President 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 of it." ^ This view does not 
 militate against the general ability to marry by letter. 
 
 III. Consent in Form hut not in Fact. 
 
 § 233. How, ■where the Words express Marriage, but the Par- 
 ties do not mean it. — The question has been considerably 
 agitated before the tribunals of Scotland, and before the House 
 of Lords, to which some of the cases have been taken by appeal, 
 to what extent parties who use words expressive of consent 
 are bound by them, when they do not in fact intend matrimony. 
 Mr. Eraser has extracted the rule from the adjudications, as 
 follows : " Although the parties may have exchanged, in words, 
 the most unequivocal consent, there would be no marriage, at 
 least if it be clandestine, if it be proved that they intended 
 something different, only went through the proceeding as a 
 jest, or intended it merely as a blind or cover for some private 
 purpose of their own, and gave, in short, consent in form but 
 not in fact. Simulatce nuptice nullius momenti sunt." ^ The 
 doctrine, otherwise expressed, appears to be, that, in this 
 matter of marriage, consent is so essential as to leave the 
 forms of marriage, into which it does not enter as a thing of 
 
 ' Sassen v. Campbell, 3 Scotch Sess. ^ x Fras. Dom. Eel. 213. And see 
 Cas. new ed. 108, 2 Wilson & Shaw, Browne v. Burns, 5 Scotch Sess. Cas. 
 309. N. s. 1288. 
 
 195 
 
§*235 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 fact, mere unfinished and imperfect caskets, to which the law- 
 declines intrusting its jewel matrimony. The law will not, in 
 still other words, impose a consent upon parties in whose 
 minds it does not exist in reality, though they have gone 
 through with a form of consenting.^ There may be some 
 qualification of this doctrine recognized in the law ; so we 
 shall see how it stands on the adjudications. 
 
 § 234. Continued — Form adopted for a Different End. — In the 
 Scotch case of Mclnnes v. More, after copula and pregnancy 
 following, the man addressed to the woman a letter in these 
 words : " 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." She 
 raised a declarator of marriage against him, offering in evi- 
 dence only this letter, and his judicial examination elicited in 
 the case, whferein he denied the alleged matrimonial consent, 
 and explained the letter as having been given upon her impor- 
 tunity, 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, on the ground that, the matter 
 standing on the letter and his judicial examination taken 
 together, the letter, explained by the examination, 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 circum- 
 stances of the case concurring to prove the same thing." ^ 
 
 § 235. Consent meant to be conditional — Not Final Agree- 
 ment. — In the Scotch case also of Taylor v. Kello, a farmer's 
 daughter, of considerable fortune for a person of her rank, had 
 received the address of a man of equal rank, but reduced to 
 bankruptcy by his own extravagance, and therefore unaccept- 
 able to her relatives. He drew the following writing, which 
 she, copying, delivered to him, and took from him another in 
 corresponding terms : " I hereby solemnly declare you, Patrick 
 
 1 And see Clark v. Field, 13 Vt. 460. Hag. Con. 54, 101, i Eng. Ec. 485, 506. 
 
 2 Mclnnes v. More, Ferg. Consist. For similar facts, and the same result, 
 Law, Rep. 33, 1 Fras. Dom. Rel. 213 ; see Grant v. Mennons, Ferg. Consist, 
 s. o. in Dalrymple v. Dalrymple, 2 Law, App. 110. 
 
 196 
 
CHAP. XII.] IMPERFECT CONSENT. § 236 
 
 Taylor of Birkenshaw, my just and lawful husband, and remain 
 your affectionate wife, Agnes Kello." Her judicial declaration 
 afterward given was, that she did not consider this a final 
 agreement, and that the man was not to use it without her 
 consent. There was no evidence that concubitus had either 
 followed or preced'ed this transaction, and he mention6d it to 
 none of his friends. On the matter being discovered, the lady's 
 mother requested him to surrender the writing, but he refused. 
 During the next year he continued his visits at the house of 
 the lady ; and at length proclamation of banns was consented 
 to, and twice made ; but, before the third time, it was stopped 
 by her or lier relatives. During the next two years their 
 meetings became infrequent, and in the two years still following 
 they ceased. At the end of these five years from the time of 
 the interchange of the writing, on the woman being about to 
 be married to another man, he instituted his action of declar- 
 ator of marriage. The commissaries affirmed the marriage ; 
 the Court of Session sustained their judgment ; but the House 
 of Lords overruled it, as in the last case, and for substantially 
 the same reason. They held, " that the two letters insisted 
 upon in this process, signed by the parties respectively, and 
 mutually exchanged, were not intended by either, or under- 
 stood 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." ^ 
 
 § 236. Collateral Purpose, continued. — So where the man, in 
 a letter of attorney to the woman, acknowledged and declared 
 her to be his wife, — this not being done, as it appeared in evi- 
 dence, with the intention on the part of either to enter into 
 marriage, but to enable her the better to carry out certain 
 objects contemplated by the letter, — the transaction was held 
 
 1 Taylor v. Kello, 1 Fras. Dom. Eel. rymple v. Dalrymple, 2 Hag. Con. 54, 
 214 ; reversed A. D. 1787. Also in Dal- 94, 4 Eng. Ec. 485, 503. 
 
 197 
 
238 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 not to constitute marriage.^ In like manner, where the written 
 acknowledgment which the man made to the woman of her 
 being his wife, was intended merely as a device to deceive 
 others, and so enable him to avoid forming with another woman 
 a matrimonial connection to which he objected, what was done 
 was held not sufficient to render the parties married.^ 
 
 § 237. One Party not meaning Marriage. — And whatever diffi- 
 culties may have attended the question in Scotland formerly, 
 the doctrine has latterly been strongly maintained in the 
 Scotch courts, and it is undoubtedly there established, that, 
 though the words employed distinctly import marriage, and 
 even though they were so understood by one of the parties, 
 yet, if the other party did not intend matrimony, and no copula 
 followed, they will not operate in law to constitute marriage. 
 " The ruling principle," said the Lord Justice-Clerk, " as to the 
 constitution of marriage, is, that it is a mutual contract, — a 
 consensual contract, — to the formation of which the consent 
 of both parties must be really, deliberately, definitively, and 
 irrevocably given. ... It would be, indeed, a most extraor- 
 dinary practical view of the consensual contract of marriage 
 to hold, that, in respect of the mere words of writings, not 
 followed by any of the consequences of mari-iage, 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 , 
 understood the paper she signed. That would be an extraor- 
 dinary result." 3 And, in a case of non-consummation also, 
 the further doctrine was laid down, that the intent to marry, 
 must, in the absence of consummation, be shown by evidence 
 beyond the writing, however clear its words in themselves 
 are.* 
 
 § 238. Marriage publicly celebrated — Consummation. — But 
 where the marriage is regularly, and especially where it is 
 publicly celebrated, according to a form prescribed by law, the 
 
 1 Campbell i,. Sassen, 2 "Wilson & 3 Lockyer v. Sinclair, 8 Scotch Sess. 
 Shaw, 309. Cas. n. s. 582. And see Campbell v. 
 
 2 Stewart v. Menzies, 2 Rob. Ap. Sassen, 2 Wilson & Shaw, 309, 319. 
 Cas. 547 ; 1 Fras. Dom. Eel. 215. * Lockyer v. Sinclair, supra. 
 
 198 
 
CHAP. XII.] IMPERFECT CONSENT. § 239 
 
 rule of the law may possibly be otherwise than it is in these 
 cases of irregular marriages, entered into by informal writings. 
 And whether the marriage is formal or informal, the docti'ine 
 as applied after what is called the consummation has taken 
 place may be different still ; for, in the latter circumstances, 
 one who has consented to what is signified by the form, cannot 
 well say he did not mean marriage. In a case of informal 
 writings, no objection on general principles can arise to per- 
 mitting evidence to be introduced as to whether or not tliey 
 were intended by the parties to take effect at all as a contract ; ^ 
 and only this was done in the Scotch cases before mentioned. ^ 
 Yet there are principles of law which often estop parties to 
 deny a conclusion drawn by the law from their acts. And 
 perhaps, under some circumstances, matrimonial forms may 
 have the consequence of estopping the parties to deny an 
 attendant matrimonial consent. 
 
 § 239. Continued. — On this point, some remarks by Lord 
 Stowell in the Dalrymple case are too important to be over- 
 looked ; while yet it should be observed, that they have been 
 in part disapproved of in Scotland.^ Speaking of the matri- 
 monial consent under the Scotch law, he says : " It is said that 
 it must be serious ; 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 expressions, applied to contracts of so serious a nature 
 as the disposal of a man or woman for life, have a serious 
 import. It is not to be presumed, a priori, that a mail is 
 
 1 Armstrong v. M'Ghee, Addison, sions used, though of themselves suffi- 
 261 ; Jewell v. Jewell, 1 How. U. S. clent words of contract, are of no avail 
 219 ; 1 Greenl. Ev. § 284. if not intended by the parties to have 
 
 2 In Stewart v. Menzies, 2 Rob. Ap. that effect, but are used for some coUat- 
 Cas. 547, 592, Lord Cottenham ol)- eral purpose. This in no respect in- 
 served : " The cases of Kennedy v. fringes upon the principle of not con- 
 Campbell, in 3 Wilson & Shaw, 135, struing a written contract by extrinsic 
 note ; Mclnnes v. Moir, Ferg. Consist, evidence of intention ; the question 
 Law, App. 125, 128 ; Taylor v. Kello, being, not what the written contract 
 Mor. 12687 ; Grant v. Mennons, Ferg. imports, but whether it is to be treated 
 Consist. Law, App. 110, and many as a contract at all." 
 
 other cases, prove, what indeed re- ' Lockyer v. Sinclair, 8 Scotch Sess. 
 quired no such proof, that, to constitute Cas. n. s. 582, disapproving the doc- 
 a contract of marriage, there must be trine of the concluding part of the next 
 contracting parties, and that the expres- section. 
 
 199 
 
§ 240 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 sporting with such dangerous playthings as marriage engage- 
 ments. Again, it is said, that the anitmis contrahentium must 
 be regarded. Is that peculiar to the marriage 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 was expressed ; 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 
 substitute an intention totally different, and possibly inconsis- 
 tent with the words. By the matrimonial law of Scotland, a 
 latitude is allowed, which to us (if we had any right to exer- 
 cise a judgment of the institutions of other countries with 
 which they are well satisfied) might appear somewhat hazard- 
 ous, of substituting another serious intention than that which 
 the words express, to be proved by evidence extrinsic, and 
 totally, as we phrase it, dehors the instrument. This latitude 
 is indulged in Scotland to a very great degree indeed, accord- 
 ing to Mr. Erskine. In all other countries, a solemn marriage 
 in facie ^cclesice facit Jidem, the parties are concluded to mean 
 seriously, and deliberately, and intentionally, what they have 
 avowed in the presence of God and man, under all the sanc- 
 tions 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 
 between themselves, all this is a mere imposition and mockery, 
 without being entitled to any effect whatever. 
 
 § 240. Continued — One of the Parties. — "But," continues 
 the learned judge, " be the law so, still, it lies upon the party 
 who impeaches 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 intention 
 so alleged by him was fully understood 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 such a transaction a man shall use serious words, expressive 
 of serious intentions, and shall yet be afterwards at liberty to 
 200 
 
CHAP. XII.] IMPERFECT CONSENT. § 241 
 
 aver a private 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 understand that they were truly 
 man and wife, it would enter into the question, whether mar- 
 ried 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." ^ 
 
 § 241. Continued. — What is said by Mr. Erskine, to which 
 probably Lord Stowell refers in the foregoing extract, is the 
 following : " As marriage in facie Ecelesioe, by the law of Scot- 
 land, is neither a sacrament nor a necessary ceremony to 
 constitute the matrimonial imion, cases might occur where a 
 marriage by a clergyman might be insufficient, from its being 
 proved that, anterior to the celebration, the parties had inter- 
 changed written declarations that the ceremony was to be 
 effected for a totally different purpose, and should not be bind- 
 ing upon either of them. But the respondent conceives, that 
 to take off the effect of a written consent de prcesenti, or a 
 promise of marriage followed by a copula, will require the 
 most clear and decisive facts applicable to both the parties, 
 sufficient to show that the written declaration or promise was 
 given for a purpose different from that of contracting mar- 
 riage, and a proof of those facts by the most unquestionable 
 evidence." ^ Professor More, in his Notes on Stair, lays down 
 the proposition, that " the most formal acknowledgment 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." ^ But Mr. Eraser has shown, that none of the 
 cases referred to by him support this proposition, as to mar- 
 riage in facie Ecclesice ; and that, though this question has 
 been mooted, and opposite opinions have been expressed upon 
 it, by Scotch lawyers, yet it remains undecided in Scotland.* 
 
 1 Dalrymple v. Dalryraple, 2 Hag. CI. & F. 327, 348, 352 ; Swinb. Spousals, 
 Con. 54, 105, 4 Eng. Ec. 485, 508, 509. 84, 87. 
 And see Cunninghams v. Cunninghams, 2 2 Hag. Con. App. 26. 
 2 Dow, 482, 485 ; Lords Brougham and ' 3 More's Notes, p. xiv. 
 Campbell in Hamilton v. Hamilton, 9 « 1 Eras. Dom. Kel. 1\1-11\. 
 
 201 
 
§ 243 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 § 242. Continued — Informal Marriages. — We have already 
 seen,'^ that, as concerns informal marriages entered into by 
 mere word, written or oral, the doctrine established in the 
 Scotch courts has strong support in the ordinary doctrines of 
 our common law as applied to other things. We must, there- 
 fore, understand the foregoing observations by Lord Stowell to 
 be, in spite of his great name, slightly inaccurate. And we 
 are not to presume that the House of Lords, in deciding the 
 before-mentioned Scotch cases of Mclnnes v. More, and Taylor 
 V. Kello,^ though proceeding according to Scotch law,^ supposed 
 themselves to be overruling the decisions of the highest tribu- 
 nal of Scotland by the introduction of a principle foreign to 
 tlie law of England. Consequently we may conclude that no 
 difference exists between the English and Scotch doctrine on 
 this subject, other than is created by the English marriage 
 acts, all adopted since the settlement of this country ; the result 
 of which is, that the law with us, in States where no change 
 has been wrought by legislation, is the same as established in 
 Scotland. Still, we must remember that the doctrine refers 
 merely to informal marriages. 
 
 § 243. Formal Marriages, again. — Obviously, where there 
 has been a public celebration of marriage, especially in a form 
 prescribed by statute, the cases must be rare in which an intent 
 other than matrimonial could, as a question of fact, be estab- 
 lished. And, as already intimated,* if copula had followed 
 such celebration, principles of public policy would seem to 
 forbid either or both of the parties to show, that the real 
 matrimonial consent had not passed. The point, moreover, 
 has been stated thus : on the one hand it is said, that " there 
 are others concerned in the marriage besides the parties them- 
 selves. It produces a new status of the parties in society, the 
 creation and nature of which is juris puhlici. And if the 
 requisites to create this status have once occurred, the rela- 
 tions consequent on it immediately take place, whatever latent 
 purposes one or both of the parties have entertained." ^ On 
 the otlier hand it is urged, and on this reasoning the decisions 
 
 1 Ante, § 238. 4 Ante, § 238. 
 
 2 Ante, § 234, 235. 5 Lo^ij Meadowbank, Ferg. Consist. 
 ' Warrender v. Warrender, 2 CI.- & Law, App. 124. 
 
 F. 488, 561, 567. 
 202 ■ 
 
CHAP. XII.] IMPERFECT CONSENT. § 244 
 
 above cited proceed, that, admitting the evils of the parties' 
 imposture, the proper remedy is not to repay imposture by 
 fiction, and to enforce a consensual contract upon persons 
 who have not in fact consented ; that the imposture, though 
 profligate and pernicious, is of the same description with many 
 other things for which the law provides no remedy, as where a 
 man imposes his bastard on society as his lawful child.i And 
 certainly it would be a marked exception to 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 blameworthy conduct.^ At the same time, there must 
 be a point here beyond which such frivolity cannot go. 
 
 § 244. Contmued — Mock Marriages. — It is remarkable that 
 this question has received very little judicial elucidation in 
 this country. Among the follies with which people are some- 
 times chargeable, are mock marriages. Now, if two persons, 
 after going through with a sufficient ceremony, are therefore 
 married, though neither of them intended to be, no subsequent 
 mutual disregard of the bond can undo it ; and, if they after- 
 ward intermarry with other persons, they are in law polyga- 
 mists, and their children are illegitimate. And certainly the 
 occurrence would be a novel one, for a gray-haired parent to 
 find himself indicted on the charge of polygamy, and his issue 
 in danger of being declared bastards, because it had been 
 ascertained that he, when a boy of fourteen years, had par- 
 ticipated in the sport of a mock marriage with a girl of 
 twelve. But while all must agree, that, in these cases wherein 
 neither the parties nor the spectators understand marriage to 
 be intended, and cohabitation does not follow, the mere form 
 idly pronounced does not make marriage, still the result may 
 be different under many circumstances, in which there is a 
 secret intent in one or both of the parties not to be bound by 
 the ceremony. The rule of law for extreme cases may be 
 plain to common apprehension, but what lies between the 
 extremes must be left somewhat to be determined by future 
 adjudications. 
 
 1 1 Fras. Dom. Rel. 620. 2 And see Peat's Case, 2 Lewin, 
 
 288. 
 
 203 
 
S 245 MABBIAGE IMPEBFECTLY COSSTITUTED. [BOOK HI. 
 
 S 
 
 § 244 a. Mock Marriages, contmuea. — On this subject of mock 
 marriages, however, there is a late Xew Jersey case which is 
 quite distinct and satisfactory. It was there laid down, that 
 intention is an essential ingredient in the contract of present 
 marriage, the same as in every other contract. Consequently 
 a marriage ceremony which is gone through with in jest does 
 not make the parties husband and wife ; and it is so, even 
 though the ceremony is conducted by an official person, 
 authorized to celebrate marriage, and he is in doubt whether 
 the parties are in earnest or not. Said Chancellor Green: 
 " Mere words, without any intention corresponding to them, 
 will not make a marriage 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 eflFect. In this case, 
 the evidence is clea'r that no marri^e 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 marriage." ■'■ 
 
 § 245. Intent to make Betrothal binding. — The following 
 case once came before the Tice-Chancellor of Xew York : A 
 young man, twenty-three years of age, paid his addresses to a 
 girl of sixteen, and the two became mutually attached. Her 
 parents, 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 considered binding as a mar- 
 riage, but only as rendering their engagement of future 
 marriage with each other stronger. On their way to the 
 clergyman's house he asserted that the marriage should be 
 mere form ; that they should not be esteemed husband and 
 wife for two years ; neither should they, until the parents' 
 consent had been obtained, and the ceremony performed anew. 
 There was no consummation, and a day or two afterward the girl 
 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 
 i Mcaurg V. Teny, 6 C. E. Green, 225. 
 
 204 
 
CHAP. XII.] IMPERFECT CONSENT. § 247 
 
 have it declared null, and a decree was entered accordingly.^ 
 This case contains some of the elements of fraud ; but there 
 is no apparent difference, whether he intended, at the time 
 the ceremony was performed, to rely upon it afterward as a 
 marriage, or whether the intent to do so was an after-thouglit. 
 The decision accords with the Scotch doctrine as to consent in 
 form, given to accomplish a collateral purpose.^ 
 
 IV. Further Views of the Consent per Verba de PrcBsenti. 
 
 § 246. Three Forms of Consent — In Essence one. — In the 
 discussion of tliis question of consent, we are led to inquire 
 how the doctrine has been divided by those who have gone 
 before. And we learn that there are three forms of consent 
 spoken of in the books ; namely, consent ^er verba de prcesenti, 
 consent per verba de fuluro cum copula, and consent by habit 
 and repute. But strictly and philosophically the last two are 
 only special manifestations of the first one ; and accordingly 
 our discussion thus far in this chapter has proceeded on tlie 
 idea of the consent being a unit, and expressed by words of 
 present promise. Let us consider it in this form a little further 
 before we look at the other two forms. 
 
 § 247. Consent and Proof of it distinguished — 'Woman not 
 joining in the Promise. — We have already seen, that, to consti- 
 tute marriage, the consent of the parties must be mutual, and 
 given at the same instant. But a distinction exists between 
 the consent itself and the surrounding indications or proofs of 
 it.^ Therefore when a man, while cohabiting with a woman 
 who had borne him children, wrote, with her knowledge, and 
 committed to his agent under an injunction of secrecy, a letter 
 declaring her to be his wife, and subsequently on his death-bed 
 spoke to her of the letter, it was lield, that his agent might be 
 considered as her agent also, and that, under all the circum- 
 stances of the case, the cohabitation continuing for years after 
 the letter was written, a mutual consent might be inferred.* 
 
 1 Robertson v. Cowdry, 2 West. ^ See Honyman v. Campbell, 5 Wil- 
 Law Jour. 191, 1 S. W. Law Jour. 167. son & Shaw, 92. 
 
 And see Mount Holly v. Andover, 11 * Hamilton y. Hamilton, 1 Bell Ap. 
 
 Vt. 226 ; Clark v. Field, 13 Vt. 460 ; Cas. 736, 9 CI. & F. 327 ; 1 Fras. Dom. 
 
 Barnes v. Wyethe, 28 Vt. 41. Eel. 150. 
 
 2 Ante, § 234, 236. 
 
 205 
 
§ 248. MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK III. 
 
 Though the woman did not join the husband in an express 
 written or oral agreement, such an agreement was presumed 
 from the circumstances.^ 
 
 §248. Woman not joining, continued. — In the case jUSt 
 mentioned, the facts were open to inference ; but, where they 
 are not, the consent of both the parties must be clear and 
 direct. This point is illustrated in a Pennsylvania case, as 
 seen in the following extract from the opinion by Tilghman, C. 
 J. : " The defendant pleaded that he was married to the plain- 
 tiff, on which issue was joined, and it 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 marrying. They 
 had long lived in an adulterous Intercourse, although they con- 
 sidered 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 con- 
 tract, which she always asserted to be a lawful marriage. Mr. 
 Watts advised tliem to repeat tlie marriage in a solemn manner 
 before a clergyman, which was never done. So that, under all 
 the circumstances, it appears to me that what was done was 
 too slight and too equivocal to establish a marriage."'* But 
 although this case illustrates a principle, there is room for 
 doubt whether it was correctly decided. The presumptions of 
 law are in favor of marriage between parties living together 
 
 1 See Hutton v. Mansell, Holt, 458. 2 Hantz v. Sealy, 6 Binn. 405. 
 
 206 
 
CHAP. SII.] IMPERFECT CONSENT. § 249 
 
 as husband and wife ; ^ and certainly no forced construction 
 would be required to consider the words used by the woman, in 
 the presence of Mr. Watts, as an affirmative response to those 
 of the man. Further than this also, where parties are living 
 together under both the wish and the belief of being husband and 
 wife, if an impediment of to-day prevents the legal status from 
 being superinduced thereby, and to-morrow the impediment is 
 removed, there is reason to hold, that the status uprises as the 
 impediment sinks.^ This observation applies to a case only 
 where marriage may be constituted by consent alone, and where 
 in fact the parties both desire marriage and are cohabiting while 
 tlie impediment is not subsisting. And there is a class of 
 authorities which at least would permit the jury in these cir- 
 cumstances to infer an agreement of marriage entered into 
 after the impediment was removed. At the same time, it is 
 fair to observe of this Pennsylvania case, that the woman, in 
 bringing lier suit against the man, showed her own intent then 
 to be, not to be considered his wife ; disaffirming thereby the 
 marriage, as far as she was able. 
 
 § 249. Something to intervene between Consent and Marriage. 
 — The consent, to constitute present marriage, must not be 
 attended by an agreement that some intervening thing shall 
 be done before the marriage takes effect ; as, that it be 
 publicly solemnized.^ The question in a case of this sort is, 
 whether the qualifying matter was meant to delay the nuptials, 
 or was introduced for some other purpose ; as, to satisfy 
 scruples, or for appearance and 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 
 
 1 Ante, § 13; post, § 434, 443, 457- 10 CI. & F. 534, 708, 730; Lord Camp- 
 
 459. bell, ib. p. 748, 783, 797. And see 
 
 ^ See, post, the chapter commencing Stewart v. Menzies, 2 Rob. Ap. Cas. 
 
 § 503. 647, 591 ; Clark v. Field, 13 Vt. 460. 
 
 3 Lord Brougham, in Eeg. v. Millis, 
 
 207 
 
§ 249 a MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 to accept of you as my lawful wife, and is ready and willing 
 to accept tlie common rite here put in execution in a public 
 manner ; or, if that cannot be conveniently done, suiting to 
 all parties, I 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." It appeared 
 from his judicial examination, that he understood himself 
 bound by this declaration, and not at liberty to marry another ; 
 and that he had no doubt the woman, when she received it, 
 understood herself to be bound in like manner. Connecting 
 this admission with the writing itself, the court pronounced 
 for tlie marriage.! So where the man, besides introducing the 
 woman to respectable people as his wife, wrote and subscribed 
 the following, which he gave her : " I Her by aknolidg and 
 own that I am maryed to El_sepeth Ourriaa, 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," — the majority of the court were of opinion, 
 that a clear acknowledgment de proesenti was contained in the 
 opening words of the writing, and that the sequel, though 
 somewhat confused, was a statement of his reasons for delay- 
 ing to take her home as his wife, and a promise to provide 
 for her in the mean time. The case, however, contained in 
 itself other evidence sufficient to establish the marriage ; 
 namely, oral acknowledgments followed by copula.^ 
 
 § 249 a. Continued. — On the other hand, in an Alabama case, 
 the facts were the following. A man being on trial for mur- 
 der, a woman was produced as a witness against him, who, 
 on her voir dire, stated, that she and the defendant agreed to 
 marry ; that he told her he could not get a license for them 
 to marry then, 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 upon this agreement they cohabited. It 
 was thereupon held, that she was not his wife, consequently 
 
 1 Edmeston u. Cochrane, 1 Eras, mally celebrated at a future time, does 
 DotQ. Kel. 153. not prevent the matrimonial status 
 
 2 Currie v. Turnbull, Hume, 373, 1 from being superinduced on a present 
 Fras. Dom. Rel. 154. That the mere promise with cohabitation, see Grotgen 
 agreement to have the marriage for- v. Grotgen, 3 Bradf. 373. 
 
 208 
 
CHAP. XII.] IMPERFECT CONSENT. § 251 
 
 she was a competent witness. The agreement referred to the 
 future. It was a mutual undertaking to marry at a subsequent 
 time, on the transpiring of a future event, — the procurement 
 of a license. The cohabitation, which took place, necessarily 
 preceded the consent on which the agreement to marry was to be 
 consummated in a present marriage, and was, therefore, not 
 in fulfilment of the matrimonial agreement, but in advance of 
 an anticipated marriage. ^ 
 
 § 250. Successive Declarations of Consent. — Where succes- 
 sive declarations of present promise are made, the first ones 
 are not superseded and rendered null by those which follow. 
 Indeed, they could not be ; since, if they were sufficient to 
 constitute marriage, no agreement of the parties could annul 
 it.^ In one case there were three several and distinct declara- 
 tions 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 the iteration of the second declaration showed 
 the parties not to have intended to depend on the first one, 
 being in effect a disclaimer of the first. But the Court of 
 Delegates overruled the objection, and the Chancellor refused 
 a commission of review.^ 
 
 § 251. Continued. — So the Dalrymple case was held to be 
 one of marriage per verba de prcesenti; and, though copula 
 followed, it was not necessary to perfect the marriage. There 
 the consent lay chiefly in three several mutual 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 
 anotlier," signed by the gentleman ; the lady adding, over 
 her signature, " and I promise the same." This paper was 
 indorsed, " a sacred promise." Tlie second paper 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 
 
 1 Robertson v. The State, 42 Ala. in Walton v. Rider, 1 Lee, 16, 28, 5 
 509. See post, § 262. Eng. Ec. 289, 295 ; also in Dalrymple 
 
 2 Hoggan V. Cragie, Maclean & Rob. v. Dalrymple, 2 Hag. Con. 54, 69, 4 
 942, 974. Eng. Ec. 485, 492. 
 
 3 Eitzmaurice v. Fitzmaurice, cited 
 
 VOL. I. 14 209 
 
§ 252 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 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. Dalrymple. 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. Dalrymple. Witness, Charlotte Gordon." 
 The last two papers were enclosed in an envelope superscribed, 
 " Sacred promises and engagements." They were all pro- 
 duced by Miss Gordon, in whose possession they had remained, 
 and they were held to establish the marriage.^ 
 
 § 251 a. "We are married" — Wedding Ring, &o. — A man and 
 woman, being engaged to be married, the former told the 
 latter he did not believe in marriage ceremonies, and asked 
 her to waive the ceremony, saying the marriage would be 
 equally valid without it. She consented, and fixed a day for 
 the marriage. On that day, while they were riding together 
 in a carriage, he put a ring upon her finger, saying : " This is 
 your wedding ring ; we are married." She received the ring 
 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." Slie 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 ad- 
 dressing and speaking of her as such. This was held, in 
 New York, on a suit for divorce, to constitute a valid mar- 
 riage.^ 
 
 § 252. Agreement of Secrecy. — An agreement to keep the 
 marriage secret will not invalidate it, neither necessarily 
 involve in doubt the proofs of its existence. Such an agree- 
 ment, it was observed by Lord Stowell, sometimes attends the 
 most regular marriages, " from prudential reasons ; from the 
 same motive it almost always does private or clandestine mar- 
 riages. It is only an evidence against the existence of a mar- 
 riage when no such prudential reasons can be assigned for it, 
 
 1 Dalrymple v. Dalrymple, 2 Hag. 2 Bissell v. Bissell, 55 Barb. 325, 7 
 
 Con. 54, 4 Eng. Ec. 485. , See also 2 Abb. Pr. n. s. 16. And see Van Tuyl 
 
 Hag. Con. App. 144 ; Piers v. Piers, 2 v. Van Tuyl, 57 Barb. 235, 8 Abb. Pr. 
 
 H. L. Cas. 331. n. s. 5. 
 210 
 
CHAP. XII.] IMPERFECT CONSENT. § 253 
 
 and when every thing, arising from the very nature of mar- 
 riage, calls for its publication." ^ 
 
 V. Consent per Verba de Futuro cum Oopula. 
 
 § 253. General Doctrine. — We have already seen,^ that, 
 according to the language usually employed in the books, if 
 parties are engaged to be married, and then, such engage- 
 ment remaining unrevoked, have carnal intercourse, the en- 
 gagement and copula, connected together, amount in law to 
 a present consent ; constituting what is termed marriage per 
 verba de futuro cum copula. The reason is, that the copula 
 is presumed to have been allowed on the faith of the marriage 
 promise ; and that so the parties, at the time of the copula, 
 accepted of each other as husband and wife.^ The doctrine, 
 it will be observed, is not a technical one pertaining to the 
 marriage law, but it is a recognition, in this department of 
 the law, of the fact recognized and acted upon throughout the 
 entire domain of our jurisprudence, and probably in every 
 system of cultivated juridical science, that the common course* 
 of human actions is lawful and not unlawful ; and so, when 
 an act is equally susceptible of two interpretations, by the one 
 of which it is lawful and by the other it is unlawful, and there 
 is no proof as to which it was in the particular instance, the 
 presumptions shall be in favor of the interpretation which 
 makes it innocent.^ Applying this doctrine to the law of 
 marriage, if parties have entered into an agreement to marry 
 each other, and if no formal ceremonies are by law required 
 to make a perfected marriage, then, if they do what is lawful 
 in marriage but without marriage is unlawful, and there is no 
 specific proof as to what was really meant, but we are com- 
 pelled to draw an inference, common observation, the duty 
 
 1 Dalryraple v. Dalrymple, 2 Hag. 67, 4 Eng. Ee. 490, 491 ; Fergusson in 
 Con. 54, 76, 4 Eng. Ec. 485, 495 ; Swift Ferg. Consist. Law, Eep. 149 ; 1 Eras. 
 V. Kelly, 3 Knapp, 257 ; Hamilton v. Dom. Rel. 188 ; Lord Campbell, in Eeg. 
 Hamilton, 9 CI. & F. 327 ; Ayl. Parer. v. Millis, 10 CI. & F. 534, 780 ; Du- 
 364. maresly v. Fishly, 3 A. K. Mar. 368, 
 
 2 Ante, § 227, 246. 372; Patton v. Philadelphia, 1 La. An. 
 
 3 Reid V. Laing, 1 Shaw. Ap Cas. 98, 101 ; Askew v. Uupre, 30 Ga. 173. 
 440 ; Stewart v. Menzies, 2 Bob. Ap. * See Bishop Stat. Crimes, § 1061. 
 Cas. 547, 591 ; Lord Stowell, in Dal- 5 1 Greenl. Ev. § 34, 35. 
 
 rymple v. Dalrymple, 2 Hag. Con. 66, 
 
 211 
 
§ 253 a MAEBUGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 of judging charitably the actions of others, and an established 
 principle of evidence extending through the entire legal system, 
 alike demand, that it shall be deemed the parties meant hon- 
 estly, and so, instead of committing an offence against morality 
 and law, consummated their marriage vow. And, on every 
 principle, if they meant marriage at the time of the act, they 
 could not afterward divorce themselves by denying their origi- 
 nal intention. 1 The doctrine in other words is, that, connect- 
 ing the consent de futuro with the copula, and making of the 
 two a present consent, the copula becomes moral and legal, 
 which would otherwise be immoral and illegal. Therefore 
 it is that no solicitations of chastity, or attempts at copula, 
 or other familiarities short of the carnal act, will convert 
 espousals de futuro into present matrimony.^ We shall see, 
 in some future chapters, wherein the proof of marriage in all 
 issues will be considered, that this same presumption of inno- 
 cence, applied in almost the same way as where it is evoked 
 to convert future into present espousals, is the leading and 
 principal matter in most cases relied on to prove marriage, 
 even where, to make it valid, a formal celebration is required.^ 
 § 253 a. Continued. — Though this doctrine, as thus stated, 
 is, when it appears in these general terms, too plain in itself, 
 and too firmly imbedded in principles which extend through 
 every part of our jurisprudence, to be denied by any legal 
 person who takes pains to understand it, there are, relating 
 to it, some points upon wliich differences have been expressed. 
 For example, is the presumption one of law, or of fact ? Is it, 
 in the proper circumstances, conclusive, or may it always be 
 rebutted ? The difficulty here is, that our whole law of evi- 
 dence is in a measure blind on questions connected with the 
 nature and effect of presumptions. There are conclusive pre- 
 sumptions, and there are presumptions which may be rebutted. 
 Differences of views may well be entertained as to the one 
 now under consideration. To constitute a marriage, there 
 must be a consent, not merely by one party, but by both.'^ Yet 
 
 1 Ante, § 250 ; Yelverton v. Long- 2 Swinb. Spousals, 27, 28, 40, 228. 
 worth, 2 Scotch Sess. Gas. 3d ser. H. » Post, § 434-449 ; Bishop Stat. 
 
 L. 49, 4 Macq. 745 ; Morrison v. Dob- Crimes, § 608 et seq^. 
 son, 8 Scotch Sess. Cas. 3d ser. 347, * Ante, § 218, 219, 237. 
 355. 
 
 212 
 
CHAP. XII.] IMPERFECT CONSENT. § 253 I 
 
 we have seen, that it is, at least, questionable whether there 
 are not circumstances in which, especially if there has been 
 a formal solemnization, a party is estopped to deny consent.^ 
 So, in this case, if, after a marriage engagement between 
 parties, the woman should yield to the man on her faith in 
 his express assurances that it would be a consummation of 
 their marriage, it would not be an application of legal doc- 
 trine much to be commended to permit him to set up, in 
 defence to her claim of marriage, that what he meant was, 
 not marriage, but seduction .^ Yet under other circumstances 
 it would be highly just to permit it to be shown, in rebuttal 
 of the presumption, that both or even one of the parties in- 
 tended a mere illicit connection, and not matrimony. 
 
 § 253 h. Continued. — In consequence of this whole doctrine 
 of marriage by consent per verba de futuro cum copula having 
 been latterly denied by some American judges who did not 
 take pains to inform themselves of its nature, as will be 
 explained in sections further on, and because such denial 
 involves a marring or destruction of most important funda- 
 mental things in our jurisprudence, it becomes necessary that 
 the expositions of the doctrine here should be reasonably full. 
 The latest Scotch case which the author has seen on the sub- 
 ject went to judgment Dec. 17, 1869. In it, the doctrine was 
 pretty well ventilated ; it is as follows. According to one of 
 the head-notes, which seems to be accurately drawn, " a man 
 courted a woman and lent her £300 with a view to their mar- 
 riage. 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, however, 
 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 consti- 
 tuted, in respect that, although a promise to marry and subse- 
 quent copula had been established, the other facts of the case 
 
 1 See the discussion throughout the 11 Casey, Pa. 13 ; Johnson v. Johnson, 
 previous sub-title, ante, § 233-245. 1 Cold. 626 ; Guardians of the Poor v. 
 
 2 And see, as confirming or illus- Nathans, 2 Brews. 149. 
 trating this view, Bamett v. Eimmell, 
 
 218 
 
§ 253 h MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 disproved any consent to marriage on the part of the woman." 
 The evidence which she introduced to establish the promise to 
 marry consisted in part of letters written by the man to her. 
 Upon these, upon the other facts, and upon the law, Lord Ard- 
 millan 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 aris- 
 ing 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 neces- 
 sarily 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 presump- 
 tion of consent which the law requires. The post hoc ergo 
 propter hoc is not absolutely conclusive. It seems to me 
 impossible to exclude all inquiry into the conduct of the par- 
 ties 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 
 prout de jure. In this case, connection on one occasion only 
 has been established. That appears from the letters, and is 
 instructed by the judicial admission of the defender. But in 
 order to the constitution of marriage by promise subsequente 
 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 ordinary 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 presumption as sufficiently 
 instructing the required relation between the copula and the 
 promise. But it is not a prmsumptio juris et de jure. It does 
 not exclude proof to the contrary. I do not mean to say, 
 214 
 
CHAP. XII.] IMPERFECT CONSENT. § 253 6 
 
 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 retained by her, the fact of her so accepting and 
 retaining the written 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 universally true, that the connec- 
 tion following a promise has been consented to on 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 ^oman replying, — ' I do not desire or care for your 
 promise of marriage, — send me £5 and I will receive you 
 to-night ; ' and £5 is sent to her accordingly. Could it be 
 reasonably maintained that connection following upon that 
 letter, and that reply, constituted marriage ? I think not. 
 Suppose another case. A gentleman, in the course of an 
 impassioned love-letter, distinctly promises marriage. To this 
 letter the lady, in the more refined but not less licentious sen- 
 timent 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 connec- 
 tion 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 Cord Kinloch : " When a marriage 
 is sought to be constituted by a promise of marriage made by 
 a man to a woman suhsequente 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 
 
 215 
 
§ 254 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 should satisfy the court that the conduct of the maa 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 evidence 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 after- 
 wards she resisted the defender's proposals to be married, or 
 to hold herself as married to him. She cannot be now per- 
 mitted to set up the intercourse as effecting a marriage, which 
 her conduct proves she did not at the time intend." ^ 
 
 § 254. Not a Separate Form of Matrimony. — It follows from 
 this view, that marriage by consent per verba de futuro cum 
 copula is precisely the same thing as any other informal mar- 
 riage, and that this expression of it refers merely to the evidence 
 by which it is established. The books indeed employ language " 
 from whicli one who did not consider its exact impcfrt, or the 
 particular nature of the subject to which it is applied, might 
 infer that there are really, not merely two ways but three, in 
 which marriage may be constituted, namely, by consent in 
 prcesenti, by consent in futuro cum copula, and by habit and 
 repute, as already observed.^ But when we look more care- 
 fully at the matter, — in other words, when we attempt to 
 transfer from the books to our understandings the exact law 
 of this subject, — we see that there is, in essence, no difiference 
 in these forms of marriage ; but that the distinction in the 
 terms of the law refers only to the different methods by which 
 the present consent to present matrimony is made legally to 
 appear. At all events, if w6 consider the marriage per verha 
 de futuro cum copula to be of a species differing from the mar- 
 riage per verba de prcesenti, or from the marriage by habit and 
 repute, still, the effect of it, the authorities are agreed, is the 
 
 1 Morrison v. Dobson, 8 Scotch Sess. ^ Dalrymple v. Dalrymple, 2 Hag. 
 Cas. 3d ser. 347, 354, 355. Con. 54, 4 Eng. Ec. 485. In Eeg. v. 
 
 2 Ante, § 246. MUlis, 10 CI. & E. 534, it was agreed, 
 
 216 
 
CHAP. XII.] IMPERFECT CONSENT. § 255 
 
 § 255. Opinions against this Form of Marriage. — There has 
 been recently, however, a case decided in the New York Court 
 of Appeals, followed by a like case in Ohio, wherein, by way 
 of dicta, if not of direct adjudication, the judges of these two 
 States entered upon the hitherto novel work of distinguishing 
 the two kinds of marriage — namely, per verba de prcesenti, 
 and per verba de futuro eum copula — from each other ; and 
 while admitting the validity of the former, denying that of the 
 latter. In the way of dictum, also, something like this has 
 since been 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 observation, the New York 
 and Ohio decisions would be worthy of careful consideration 
 in those other States in which the question is an open one, were 
 it not for the fact that unfortunately the judges were referred 
 to no books treating of the subject in any full way, nor was 
 the subject explained to them, nor did they have any correct 
 apprehension of the doctrine they supposed they were over- 
 ruling. This does not appear remarkable when we bear in 
 mind, that these are recent cases, as just observed, decided by 
 judges, indeed, for whom we justly entertain the highest 
 respect, yet decided since it has become necessary in most of 
 our States for men, however eminent, who aspire to the judi- 
 cial seat, to spend in political party manoeuvring the time 
 
 on all sides, that espousals per verba de parties, they, in the presence of her 
 
 futuro cum copula have precisely the family and friends, agreed to marry, 
 
 same effect as espousals per verba de and did afterward live together as man 
 
 prcesenti, whatever that effect .in law and wife, the tie was indissoluble even 
 
 maybe. And see Portynton w. Stein- by mutual consent; and that, if the 
 
 bergh, cited in that case from the rolls contract be made per verba de prcesenti, 
 
 of the Province of York, ib. 841 ; Ferg. and remains without cohabitation, or if 
 
 Consist. Law, 119 ; Pennycook v. Grin- made per verba de futuro, and be fol- 
 
 ton, Ferg. Consist. Law, Rep. 95 ; Pat- lowed by consummation, it amounts to 
 
 ton V. Philadelphia, 1 La. An. 98. In a valid marriage, and which the parties 
 
 Jewell V. Jewell, 1 How. U. S. 219, (being competent as to age and consent) 
 
 233, 234, the question upon which the cannot dissolve, and that it is equally 
 
 Supreme Court of the United States binding as if made in facie ece.lesicB." 
 
 was equally divided, — as see post. There was no intimation in the Su- 
 
 § 279, — was, whether the following preme Court, that any distinction could 
 
 instruction, given by the circuit judge, be taken between a marriage by words 
 
 was correct : " The circuit court held," de prcesenti, and one by an agreement 
 
 says the report, " and so instructed the de futuro cum copula, 
 
 jury, that, if they believed that, before l Holmes o. Holmes, 1 Abb. V. S. 
 
 any sexual coimection between the 525, 538. 
 
 217 
 
§ 256 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 which formerly could be allotted to juridical studies ; and 
 decided since lawyers have found less pi-ofit from going before 
 the courts well furnished with legal authority and argument, 
 than from drumming among clients for the increased business 
 which the greater uncertainty how any cause would be deter- 
 mined has produced. The remedy for the evil tlius alluded 
 to is not of a sort requiring discussion here ; but it is in place 
 to say, that, when a judicial opinion proceeds on a total mis- 
 apprehension of the legal rule which it in terms conti'overts, 
 it can have no just weight in the scale of legal authority. 
 
 § 256. Continued. — The judges in the New York case- seem 
 to have understood, that the rule by which copula converts 
 espousals de futuro into a marriage de pnvsenti, makes the 
 parties husband and wife without their consent, instead of 
 merely holding them to be married, as in other circumstances, 
 when they do consent. And as this question is important, it 
 may not be amiss to quote some of the language employed by 
 the learned chief justice who delivered the opinion, and show, 
 by explanations in brackets,, how the coui't misapprehended 
 the doctrine. 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 acknowl- 
 edged jurisdiction of the ecclesiastical courts to compel the 
 performance of such marriages by spiritual censures. [This 
 statement is entirely without foundation of authority, and 
 unsupported by any course of just reasoning. We have seen^ 
 that the pi'inciple is inherent in the common law, tliough it 
 also extends through the ecclesiastical law, as it does through 
 every other system of cultivated jurisprudence. The ecclesi- 
 astical courts, for the purpose of promoting good order, used 
 to compel the public celebration of marriages and promises to 
 marry, both those which were per verba de futuro, with or 
 without copula, and those which were per verba de pra'scnti ; ^ 
 but the doctrine had already been settled in New York, and 
 this was admitted, that marriage might be good without this 
 public celebration. And it had never been anywhere held, 
 that one court would pronounce any marriage sufficient, merely 
 
 1 Ante, § 253, 253 a, son v. Collins, Holt, 457, 2 Salk. 487 ; 
 
 2 Swinb. Spousals, 2d ed. 222; Jes- ante, § 112 and note. 
 
 218 
 
CHAP. XII.] IMPERFECT CONSENT. § 256 
 
 because it supposed another court would, afterward, if applied 
 to, compel the parties to marry each other. The bare enuncia- 
 tion of the proposition shows it to be foreign to all correct 
 legal principle.] Having dispensed with that [the ecclesias- 
 tical] jurisdiction, we cannot consistently acknowledge any 
 marriage to be valid which requires the intervention of a spir- 
 itual court to make it perfect. We must insist upon those 
 circumstances which the law requires in an executed contract 
 upon any other subject. [Very true ; but the law governing 
 this species of contract had constituted the evidence of a future 
 promise, and of copula following it, sufficient proof, at least 
 prima facie, that the parties, when having the copula, performed 
 what they had mutually promised to perform ; made, what 
 they had agreed with each other to make, a contract in the 
 present time ; became, what tliey had undertaken with each 
 other to become, 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.^ 
 And this doctrine is neither a novel one, nor one existing 
 only in some musty book of mere ecclesiastical law ; it is a 
 branch of a broad principle of universal law and justice ; a 
 principle so broad, and sending out so many branches through 
 all the departments of our common law, as to render it worthy 
 even to be introduced where it had not been known before ; 
 much more, worthy not to be ejected from a place it was 
 already occupying.] Mutual promises to marry in future are 
 executory, 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 very true ; and the doctrine of 
 marriage per verba de futuro cum copula proceeds, as already 
 observed, on the idea that, in the absence of circumstances or 
 proofs to the contrary, the parties to a marriage promise shall 
 be presumed to have converted their future into a present con- 
 sent, instead of violating decency, morality, and law, when 
 yielding themselves to what is implied in the marriage promise. 
 In other words, they shall be presumed to give themselves to 
 each other in the relation of marriage, when, after mutually 
 
 1 Ante, § 252. 
 
 219 
 
§ 257 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 promising to enter into it, they mutually give themselves to 
 what is lawful only in this relation. Whether this presump- 
 tion will in any circumstance be held conclusive, to the extent 
 of precluding a party from introducing evidence of a contrary 
 mutual understanding at the time of copula had, is a question 
 on which opposite opinions may perhaps be entertained, as 
 already intimated, and by and by we shall further see.^ But 
 supposing it conclusive, still the case does not differ in prin- 
 ciple from that of persons voluntarily going through with a 
 public ceremony of marriage, when, as we have seen,^ they 
 may in some circumstances and according to some opinions 
 be conclusively held to have intended matrimony, instead of 
 merely intending a public diversion or imposition.] That this 
 [the doctrine laid down by the judge] has been the sense of 
 the legal profession and of the courts is evident from the rules 
 relating to several actions in common use. If a man seduce 
 a woman under a promise of marriage [the doctrine of consent 
 •per verla defuturo cum copula does not make marriage of this, 
 as th.e learned judge seems to suppose it does^], we allow 
 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 plaintiff'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 promise of marriage, if it appear that the plain- 
 tiff, on the faith of the defendant's promise, has been seduced 
 by him, and has become enceinte, it is considered as a circum- 
 stance of great aggravation, and the damages are proportionably 
 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."* 
 
 § 257. Continued. — Concerning the argument thus drawn 
 
 1 Ante, § 253 a, 2536 ; post, § 259. » Post, § 263. 
 
 2 Ante, § 233-245. 4 Cheney v. Arnold, 15 N. Y. 345. 
 
 220 
 
CHAP. XII.] IMPERFECT CONSENT. § 258 
 
 from the two forms of action mentioned, we must concede that, 
 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 other 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 necessarily a marriage.^ And the plaintiff, 
 in each of the actions mentioned, takes the position, by the 
 very bringing of the action, that the particular case is one in 
 which marriage did not take place at the time of the copula. 
 The defendant, of course, gladly abstains from alleging the 
 contrary ; because, if he were willing to become the husband 
 of the woman, that would end the action itself. Therefore the 
 New York Court greatly misapprehended in assuming that 
 these forms of action militate against the doctrine under con- 
 sideration, 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 for- 
 ward to overthrow a legal doctrine resting on an affirmative 
 practice, either of our own courts, or of the English tribunals 
 in early times. 
 
 § 268. Continued. — The facts of the Ohio case were, that, 
 while the man had a wife living, he cohabited witli the woman, 
 promising 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. The adulterous intercourse 
 was held not to be converted by the future promise into a 
 present marriage. Whether this decision was, upon priftciple 
 or upon authority, sound, will perhaps depend upon considera- 
 tions attendant on views developed in a few of our next follow- 
 ing sections ; or, it may be, upon further findings of fact upon 
 the evidence introduced. ' At present, suffice it to say, that this 
 is really a question of some doubt in the law, and that its deci- 
 sion either way would not furnish matter for much observa- 
 1 See, as exactly in point, the case stated ante, § 253 6. 
 
 221 
 
§ 259 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK IH. 
 
 tion.^ But the judge, upon the authority of what he termed 
 " the well considered " Xew York case just mentioned, laid 
 down the broad doctrine that a marriage promise could not be 
 conrerted by copula into marriage. And he said : " The idea 
 that a contract for a future marriage, followed by cohabitation 
 as husband and wife, is itself a valid marriage at common law, 
 seems to have obtained currency on the credit of remarks 
 made by several elementary writers of distinguished learning 
 and ability, 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 adju- 
 dicated and entitled to be considered as authoritative [what 
 cases are entitled to be considered as authoritative is, of course, 
 mere matter of opinion ; there is certainly not even a dictum 
 occurring in any case prior to the New York one, casting 
 suspicion upon what was theretofore the uniform doctrine of 
 the books ; and there are, in the notes to these sections, cases 
 which to the writer seem conclusive of the question, 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 origi- 
 nated, either in the inadvertent confounding of what might, in 
 the absence of rebutting evidence, be good presumptive evi- 
 dence of a marriage, with marriage itself; or from the fact 
 that such a contract per verba de futuro, followed by cohabita- 
 tion, was one of which the canon law, as administered by eccle- 
 siastical courts in England, until restrained by statute, would 
 enforce the specific performance." ^ 
 
 § 259. Nature of the Presiunption from Copula. — The rule that 
 words of future promise may be converted by copula into 
 present marriage, being thus one of evidence merely,^ may 
 probably be sometimes, or always, controlled by proof showing 
 marriage not to be intended. Therefore the doctrine seems to 
 
 1 And see post, § 261. § 261. And see Dumaresly v. Fishly, 
 
 2 Duncan v. Duncan, 10 Ohio State, 3 A. K. Mar. 368 ; Ferg. Consist. Law, 
 181, 183, 184. Rep. 118, 129, 130; Pennycook v. Grin- 
 
 ' Ante, § 253-253 b. But see post, ton, lb. 95. 
 222 
 
CHAP. XII.] IMPERFECT CONSENT. § 260 
 
 be, that, if parties after contracting d& futuro have carnal inter- 
 course under the express agreement not to create thereby a 
 marriage, it will not so operate.^ Yet Swinburne and Ayliffe 
 both assert, that, though the persons betrothed should protest 
 before copula their intention not to convert the espousals 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, in spite of the protestation, is created.^ But this 
 statement of the law appears only to hold the rule of presump- 
 tive innocence with a strong hand, and not absolutely to deny 
 that it may be overcome. Arid the better view appears to be 
 the one expressed in a dictum of Lord Campbell, who says : 
 " If the woman, in surrendering her person, is conscious that 
 she is committing an act of fornication, instead of consum- 
 mating her marriage, the copula cannot be connected with any 
 previous promise that has been made, and marriage is not 
 thereby constituted ; "^ leaving the intent a subject of inquiry, 
 and the presumption of law, which favors innocence, open to be 
 rebutted by evidence in each particular case. We have seen 
 that this doctrine is at present established in Scotland by 
 solemn adjudication.* 
 
 § 260. Continued — Presumption rebutted by Presumption — 
 We shall presently see" that a mere courtship, which falls short 
 of an agreement to marry, followed by copula, does not consti- 
 tute marriage. And in a Scotch case, which assumed rather 
 this character than the ordinary one of a mutual engagement 
 de futuro with copula following, — if we may trust the rather 
 indistinct report we have of it, — the presumption of present 
 consent, which under even these circumstances might perhaps 
 arise from the copula, was deemed to be overcome by a counter 
 presumption. For when a countess, after, perhaps, engaging 
 to marry her footman, or at least after his courtship and matri- 
 monial proposals, yielded to his embraces, the court and coun- 
 sel agreed, that marriage should not be inferred ; the disparity 
 
 1 2 Hag. Con. App. 41, 77; 1 Fras. 3 Reg. v. Millis, 10 CI. & F. 534, 
 Dom. Eel. 216 ; More's Notes to Stair, 782. 
 
 13. . * Ante, § 253 6. 
 
 2 Swinb. Spousals, 224; Ayl. Parer. 5 post, § 265. 
 250. 
 
 223 
 
§ 261 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 of rank and circumstances rendering probable her allegation, 
 that she had chosen to indulge a licentious passion, rather than 
 degrade herself from her high station by espousing her menial 
 servant.^ On a like principle, where no promise is proved, a 
 marriage between a free white woman and her negro slave will 
 not be inferred from cohabitation.^ 
 
 § 261; Copula before Promise — Both before and after — 
 Promise discharged. — But though the parties were living in 
 fornication before the promise of future marriage, 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.* At the same time we 
 have the Ohio case, mentioned just back,^ in which the facts 
 showed an unwillingness on the part of the man to marry the 
 woman ; and perhaps, where such unwillingness appears pal- 
 pable, the marriage should not be held to be constituted. 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.'' 
 
 ' Forbes v. Strathmore, IFerg. Con- Bite and superior evidence, it may be 
 
 slst. Law, Kep. 115. The pursuer, how- always conclusive." p. 118. 
 ever, proceeded to prove a marriage by 2 Armstrong v. Hodges, 2 B. Monr. 
 
 habit and repute, and the lady aban- 69. 
 
 doned the defence. Mr. Fergusson ■* Sim v. Miles, 8 Scotch Sess. Gas. 
 
 says: " Other cases, both of earlier and 89,97. 
 of later date, will likewise be found to * 1 Fras. Dom. Eel. 19.5. 
 support the opinion, that the inference * Ante, § 258. 
 from the facts of an estabUshed promise " Swinb. Spousals, 2d ed. 226. 
 subsequente copula, amounts to no more ' 1 Fras. Dom. Rel. 196 ; Hoggan v. 
 
 than a p-cesumpiio juris, ex eo quocl pie- Cragie, Maclean & Rob. 942, 974 ; Lord 
 
 1-umgue Jit, and is not, in technical Ian- Campbell, in Reg. v. Millis, 10 CI. & F. 
 
 guage, a prmsumptio juris et de jure, in 534, 782. Ayliflfe holds that a marriage 
 
 itself absolutely conclusive, and not to is not constituted in such a case. Ayl. 
 
 be redargued or disproved. . . . The Parer. 250 ; ante, § 252. In Turpin v. 
 
 proposal or promise of the male party The Public Administrator, 2 Bradf. 
 
 to marry, and the surrender of her per- 424, the surrogate observed : " When 
 
 son by the female, does indeed afford a parties are living in a meretricious 
 
 presumption of mutual consent, so state, a promise to marry on some 
 
 strong, that, if not overcome by oppo- future condition does not effect a mar- 
 224 
 
CHAP. XII.] IMPERFECT CONSENT. § 263 
 
 § 262. Prior Formal Marriage to intervene. — In order to 
 satisfy the legal mind, whether, in this class of cases, a mar- 
 riage shall be held to be constituted where evidently one of the 
 parties to the act of carnal intercourse, or both, understood, 
 that, before the marriage should be deemed to have taken place, 
 there should be a public solemnization of it, we must deter- 
 mine the previous question, or, rather, the foundation question, 
 whether the law puts the presumption of innocence under the 
 circumstances of cohabitation involved in this marriage fer 
 verba defuturo cum copula, among its conclusive presumptions, 
 — among, in other words, its estoppels, — or only holds it to 
 be a strong presumption of fact in the nature of evidence. And 
 upon this question the most which can be said in favor of the 
 validity of such a marriage is, that judicial opinion is perhaps 
 divided on the nature of the presumption, though certainly the 
 current of modern doctrine is, that it is not conclusive. And, 
 as we have seen,^ the Alabama court has held that marriage is 
 not created in these circumstances. 
 
 § 263. Copula the Condition of Promise — Seduction under 
 Promise to marry — Other Conditional Promises. — When the 
 copula is the condition of the promise, as where a man says to 
 a woman, " I will marry you in six weeks if you will sleep 
 with me to-night," a marriage is not constituted.^ And where 
 there is a conditional promise of future marriage, followed by 
 copula ; if the condition is of a nature not to be purified until 
 after the copula is had, the law will not found on the trans- 
 action a marriage ; but, if the condition could be purified 
 before, or at the time, the law will presume it was so purified, 
 and will infer a present mutual consent from the carnal act.^ 
 An illustration of a condition not purified by copula, 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 happen after the copula, 
 which excludes the possibility of a present consent.* On the 
 
 riage by mere continuation of that con- Eeg. v. Millis, 10 CI. & F. 534, 626, 
 
 nection." See, also, Yelverton v. Long- 782 ; ante, § 256, 257. 
 
 worth, 2 Scotch Sess. Cas. 3d ser. H. 3 i j-ras. Dom. Kel. 193. 
 
 L. 49, 4 Macq. 745. * Stewart v. Menzies, 2 Rob. App. 
 
 1 Ante, § 249. Cas. 547, 8 CI. & F. 309 ; Kennedy v. 
 
 2 Lords Brougham and Campbell, in Macdowall, Ferg. Consist. Law, Rep. 
 
 163, App. 90 ; Swinb. Spousals, 148. 
 VOL. I. 15, 225 
 
§ 266 MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK IH. 
 
 other baud, if a man has agreed to marry a woman when he 
 can do so with comfort, or when she finds caution that she is 
 free from debt, or worth a sum of money named ; the condition 
 in its nature may at any time be purified, and, if copula follows 
 such a promise, the law will presume the parties married.^ 
 
 §264. Enforced Betrothal. — " Albeit," says Swinburne, " the 
 woman were betrothed against her will, yet, if she sufier her- 
 self to be known by him to whom she was espoused, she is 
 presumed to have consented unto him as unto her husband, 
 whereby tlie spousals are made matrimony. Albeit the woman 
 be uncertain ; as, if a man do swear to three sisters that he 
 will marry one of them ; for by lying with one of them those 
 spousals become matrimony." ^ 
 
 § 265. Courtship short of Marriage Engagement. — We should, 
 however, notice, that a mere courtship, followed by copula, is 
 not marriage.^ The marriage promise must be absolute and 
 mutual ; though, like every thing else, it may be proved by 
 circumstantial as well as by direct evidence.* There has been 
 some discussion, whether the copula may be relied on as one 
 of the circumstances in proof of the promise ; and the better 
 opinion is, that it may be. The promise must have a complete 
 existence distinct from the copula ; ^ but the parties living 
 together may have some effect, such as to " explain ambiguous 
 words." ^ 
 
 VI. Consent ly Habit and Repute. 
 
 § 266. General Doctrine. — It is Sufficiently plain from the 
 foregoing discussions, that the law knows of but one kind of 
 consent to actual marriage. And as the consent per verba de 
 futuro cum copula differs in no essential particular from consent 
 per verba de prcesenti, and the expression merely points to a 
 difference in the form of the proofs, so it is with the consent 
 now to be considered. But, as mere matter of convenience 
 in the form of discussing the subject, some lawyers, particularly 
 
 1 1 Fras. Dom. Eel. 194. Morrison v. Dobson, 8 Scotch Sess. 
 
 ^ Swinb. Spousals, 2d ed. 225. Cas. 3d ser. 347. 
 
 3 llonteith u. Eobb, 6 Scotch Sess. s Harvie v. Inglia, 15 Scotch Sess. 
 
 Cas. N. B. 934. Cas. 964. 
 
 * Hoggan V. Craigie, Maclean & Rob. 6 Graham's Case, 2 Lewin, 97 ; 
 
 942 ; Honyman o. Campbell, 8 Scotch Campbell v. Honyman, 8 Scotch Sess. 
 
 Sess. Cas. 1039, 5 WUson & Shaw, 92; Cas. 1039, 1050, 5 Wilson & Shaw, 92. 
 226 
 
CHAP. XII.] IMPERFECT CONSENT. § 266 
 
 the Scotch, speak of a third kiad of informal marriage, which 
 they term marriage by habit and repute. It is established in 
 proof, rather than constituted, by the parties cohabiting as 
 husband and wife, and being accepted in society and reputed 
 as such.i lu a late case before the House of Lords, Lord 
 Westbury explained the Scotch law on tliis sort of marriage as 
 follows : " If I were to express what I collect from the different 
 opinions on the subject, I should rather be inclined to express 
 the rule in the following language : that cohabitation as hus- 
 band and wife is a manifestation of the parties having consented 
 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 acquaintances, to these representations and this 
 continued conduct, then habit and repute arise, and attend 
 upon the cohabitation. The parties are holdeu and reputed to 
 be husband and wife." ^ Perhaps the use of the term " habit 
 and repute" in the Scotch law, to convey the idea of a doctrine 
 which pervades our own law as well, originated in an ancient 
 statute, providing, 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.^ 
 Statutes of the like sort exist in a considerable number of our 
 own States.* For example, a statute in Massachusetts provides, 
 that, in " all cases where it shall become necessary to prove 
 the fact of marriage, in any hearing before any court in this 
 Commonwealth," " evidence of admission of said fact by the 
 party against whom the process is instituted, or of general 
 repute, or of cohabitation as married persons, or any other 
 circumstantial or presumptive evidence, from which said fact 
 
 I 1 Pras. Dom. Eel. 113; Ferg. used has the marriage been sustained." 
 
 Consist. Law, 116. As to this kind of Thomas v. Gordon, 7 Scotch Sess. Cas. 
 
 marriage, the court in one case ob- 872. 
 
 served : " They [the witnesses] never 2 Campbell v. Campbell, Law Eep. 
 
 heard this man call her his wife, or 1 H. L. Sc. 182, 211. And see p. 200. 
 any thing which could lead them to ^1 Fras. Dom. Eel. 202. 
 hold he meant to call her his wife. In * Post, § 543-545 ; Bishop Stat. 
 
 no case where this language was not Crimes, § 609. 
 
 227 
 
§ 267 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 may be inferred, shall be received as competent evidence for 
 consideration, whether the marriage to be proved was con- 
 tracted in this Commonwealth or elsewhere." ^ But obviously 
 the rule alike of the Scotch law, and of the Massachusetts 
 statute, pertains merely to the evidence.^ There seems to be 
 no good reason, therefore, either of a philosophical or a prac- 
 tical nature, for distinguishing between the different kinds of 
 consent, as indicated by the different modes of proof. 
 
 § 266 a. Doctrine applied to Formal Marriages. — And when 
 we come to consider the evidence of marriage, in subsequent 
 parts of this volume, we shall see, that the doctrine of consent 
 by habit and repute is applied to all sorts of marriages, even 
 formal ones, in England and those States of our Union where 
 ceremonies are essential to the validity of marriage, for the 
 purpose of establishing a prima facie case, at least in most 
 civil actions.^ In Scotland, habit and repute furnish only prima 
 facie evidence,* therefore the general doctrine may be said to 
 pervade the entire system of our jurisprudence the same as 
 it does the Scotch law. 
 
 VII. Effect of this Impediment of Imperfect Consent. 
 
 § 267. Void, not Voidable. — It is obvious that the want of 
 consent considered in this chapter renders tlie supposed mar- 
 riage a mere nullity.^ It may often be desirable, and some- 
 times of the highest practical importance, for the facts to be 
 inquired into, and a sentence of nullity pronounced in a suit 
 instituted for the purpose. Yet no legal necessity requires 
 this ; but the invalidity of the marriage may be shown by any 
 party, in any judicial proceeding, in which the question is 
 either directly or indirectly involved.^ 
 
 1 Stat. 1840, c. U; 1841, c. 20, re- 3 Post, § 434-449. 
 
 enacted, Gen. Stats, c. 106, § 22 ; Com- ^ Campbell v. Cajupbell, Law Eep. 
 
 monwealth v. Morris, 1 Cush. 391. 1 H. L. Sc. 182. 
 
 2 1 Pras. Dom. Rel. 203. It is by ° Campbell v. Campbell, Law Eep. 
 some supposed that this rule in the 1 H. L. Sc. 182. 
 
 Scotch law is derived from the canon « Ante, § 215 and sections there 
 law. lb. 202. referred to. 
 
 228 
 
CHAP. XIII. J FORMAL SOLEMNIZATION. § 269 
 
 CHAPTER XIII. 
 
 FORMAL SOLEMNIZATION OP THE MARRIAGE. 
 
 268. Introduction. 
 269-282 a. Whether any and what Forms are required by the Common Law. 
 283-289. How Statutes concerning the Forms are to be interpreted. 
 290-292. Some Particular Provisions of Statutory Law. 
 
 § 268. Scope of the Chapter — How divided. — In the last 
 chapter was discussed the consent necessary to constitute 
 marriage, considered irrespective of any particular forms of 
 solemnization. And we there saw, that, wliether such forms 
 are to be added to the consent therein treated of or not, still 
 the consent itself must always be given. In the present chap- 
 ter we are to inquire, whether the common law makes any 
 forms necessary ; and, assuming it does, what forms ; and to 
 consider briefly whatever, need be considered concerning the 
 statutes of the several States on the subject. We shall divide 
 the matter as follows : I. Whether any and what Forms are 
 required by the Common Law ; II. How Statutes concerning 
 the Forms are to be interpreted ; III. Some Particular Pro- 
 visions of Statutory Law. 
 
 I. Whether any and what Forms are required hy the Common 
 
 Law. 
 
 § 269. Council of Trent — Prior Marriage Lav?- in Europe — 
 England, &o. — Previous to the Council of Trent, the authority 
 of which was never acknowledged in Bngland,i nothing more 
 than mere consent was, by the general matrimonial law of 
 Christian Europe, deemed requisite to the validity of a mar- 
 riage.^ But whether the same rule prevailed in England, Ire- 
 land, and Scotland, is a question which has greatly agitated 
 the tribunals of those countries, and created some difference 
 of opinion in the American courts. 
 
 1 Poynter Mar. & Div. 13. 2 Dalrymple v. Dalrymple, 2 Hag. 
 
 Con. 64, 4 Eng. Ec. 485. 
 
 229 
 
§ 271 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK HI. 
 
 § 270. English and American Law — Question of Formal Sol- 
 emnization stated. — The question is simply, whether, to con- 
 stitute a complete and valid marriage at the common law, the 
 mutual consent of the parties must be given in the presence 
 of a persou»in holy orders ; namely, a bishop, priest, or deacon, 
 episcopally ordained. ^ It is apparently conceded, that the 
 marriage need not be in facie ecclesice, further than the pres- 
 ence of such a person is concerned ; but that it is just as well 
 celebrated in a private room as in a church. Neither is it 
 necessary for the person in holy orders to take any active part 
 in the marriage ; ^ he may even refuse, and still it is valid. 
 Perhaps, according to the opinion of those who hold this 
 presence to be essential, he must be the parish priest of the 
 parties. The presence of a dissenting clergyman is, accord- 
 ing to this opinion, of no avail ; he must be episcopally or- 
 dained ; 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 statu- 
 tory prohibition, a Roman Catholic clergyman would suffice, 
 his ordination being still regarded as valid. No compliance 
 with forms, either in tlie church or elsewhere, is, according to 
 this opinion, of any avail, when the proper clerical person is 
 not present.^ 
 
 § 271. Why the Question in Doubt. — It may seem a little 
 strange at first, that this question should be left in doubt. 
 But when we consider, that anciently the people were almost 
 entirely under the control of the priesthood ; that always, 
 unless according to the opinion of some we except the very 
 early ages of Christianity, religious ceremonies were regarded 
 as highly appropriate to attend tlie nuptials, and so a marriage 
 without them was the rarest of all occurrences ; that, also, when 
 a marriage did take place without the clerical presence, either 
 party to it could compel the otlier to solemnize it in facie eccle- 
 
 1 By statute in England, the only ers, and ostiaries. Rogers Ec. Law, 
 
 orders allowed after the Reformation 2d ed. 668. 
 
 were bishops, priests, and deacons. - Upon this one point, however, 
 
 Besides these, the Romish Church doubt is cast by the recent case of 
 
 reckoned five other orders ; namely, Beamish v. Beamish, 9 H. L. Cas. 274. 
 
 sub-deacons, acolyths, exorcists, read- And see post, § 289. 
 
 230 
 
 5 Reg. V. Millis, 10 CI. & E. 534. 
 
CHAP. Sin.] POBMAL SOLEMNIZATION. § 272 
 
 sice, — we perceive this question could seldom arise, so there- 
 fore the doubt concerning it is r6ally not matter of marvel. 
 
 § 272. "What is agreed on all Sides. — All parties to this con- 
 troversy concur, that the mere present matrimonial consent, 
 given without clerical intervention, produced a legal result 
 quite different from an unconsummated promise of future 
 marriage. It created a lasting obligation, wliich the persons 
 entering into it could neither singly nor mutually dissolve. If 
 they lived together after the manner of husband and wife, 
 they did not thereby commit fornication. Neither one of them 
 could marry another person ; and, if either did, though the 
 marriage was celebrated in the face of the church, with all 
 due observance of forms, it was voidable ; that is, liable to 
 be dissolved, and held void ab initio, by a proceeding in the 
 ecclesiastical court ; such dissolution being termed a divorce 
 causa prcecontractus ; ^ while a marriage, during the life of a 
 former husband or wife with whom there had been a formal 
 celebration of the marriage, was void per se without sentence. 
 This marriage without clerical intervention also entitled either 
 party, as just said, to compel the other, by a suit in the spirit- 
 ual court, into a public solemnization in the face of the church. 
 If either had sexual intercourse with another person, he might 
 be proceeded against for adultery. The contract was consid- 
 ered to be of the essence of matrimony, and was styled in the 
 ecclesiastical law verum matrimonium, and sometimes ipsum 
 matrimonium.'^ 
 
 1 Ante, 112 and note, 256. Contra, Ld. Denman, p. 815. In ac- 
 
 2 Reg. V. Millis, 10 CI. & F. 534, 624, cordance with this opinion of Lord 
 626, 654, 655, 703, 707, 832, 856, 858. Campbell, is that expressed by Wood- 
 Some slight doubt was expressed in bury, J., in Londonderry v. Chester, 2 
 this case upon one or two of the above N. H. 268. On this point, I presume 
 points. Thus the solicitor-general put the last reported English case to be 
 it in argument, that a marriage against Baxtar v. Buckley, 1 Lee, 42, 5 Eng. 
 the impediment of precontract was void, Ec. 301. It passed to judgment the 
 not voidable, p. 608. And Lord Camp- year before the date of the first English 
 bell was of opinion, that the precon- marriage act, which put an end to 
 tract which could be enforced by a these suits. There, the contract was 
 suit in the ecclesiastical court, and per verba de prcesenti (not in writing) 
 which rendered a subsequent marriage and the parties were minors. The sen- 
 in disregard of it voidable, was an exec- tence of the court was, that "Mr. 
 ulory agreement to marry, not the Buckley," says the report, " solemnize 
 pcomise per verba dp. prcesenti, p.76S,78i. marriage in the church with Susanna 
 
 231 
 
§ 274 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 § 273. View of this Common Ground — "WTiat is disputed. — 
 What we have thus far said is common ground, conceded on 
 all sides in this controversy. And the reader cannot fail to 
 reflect, that, if this contract was not marriage, it was surely a 
 very sublimated kind of Christian concubinage. We now 
 come to the disputed territory. On the one hand it is con- 
 tended, that, not only were parties refusing to have their mar- 
 riages publicly celebrated liable to ecclesiastical censure, and 
 to a suit to enforce the public solemnization, but also that 
 substantially the rights of matrimony, such as the legitimacy 
 of children, and, in later times, dower and curtesy, flowed 
 from these connections, which, in other words, were complete 
 marriage. On the other hand, it is contended, that the 
 children were illegitimate, though the cohabitation of the 
 parents was not adulterous ; that neither could the woman 
 have dower, nor the man curtesy ; and that, although a 
 public marriage, solemnized afterward between one of the 
 parties and a third person, was voidable in the ecclesiastical 
 court, and the cohabitation under it punishable there as adul- 
 tei-ous, yet it would not subject them to an indictment for 
 polygamy ; consequently (such is the inference), that the con- 
 tract was not marriage.^ 
 
 § 274. Adjudications as to Scotland. — In Scotland, this ques- 
 tion was earliest put to rest. The leading Scotch cases are 
 McAdam v. Walker, which, beginning in the year 1805, and 
 travelling through the Scotch courts, was carried to the House 
 of Lords, and there decided in 1813 ; ^ and Dalrymple v. Dal- 
 rymple, which was a suit brought in the Consistory Court of 
 London to affirm a Scotch clandestine marriage, decided 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.^ In each of these cases, the marriage 
 was without clerical intervention ; and in each, in every stage 
 
 Baxtar within sixty days after he shall And see 2 Hag. Con. 97, 4 Eng. Ec. 
 
 he serTed with a monition for that pur- 504. 
 
 pose." 8 Dalrymple v. Dalrymple, 2 Hag. 
 
 1 Eeg. V. Millis, as cited ante, § 270- Con. 54, 4 Eng. Ec. 485, and note at 
 272. the end of the case. 
 
 2 McAdam v. Walter, 1 Dow, 148. 
 
 232 
 
CHAP. XIII.J FORMAL SOLEMNIZATION. § 275 
 
 of it, was held to be good. Lord Stowell's opinion in the 
 Dalrymple suit lias ever been esteemed a production of match- 
 less beauty and learning, quite unsurpassed in forensic discus- 
 sion. Still, the result has not been universally approved, 
 even by Scotch lawyers ; but all admit, that the question, so 
 far as Scotland is concerned, is finally adjudicated, no more to 
 be stirred.^ 
 
 § 275. England — Ireland — Reg. v. Millis. — The first Eng- 
 lish marriage act, commonly called Lord Hardwicke's,^ settled 
 the question for England in respect to future marriages, but 
 left it open for the rest of the British dominions. The Dal- 
 rymple case, however, was generally understood as determining 
 it for those other portions, in the same way as for Scotland ; 
 until the case of The Queen v. Millis came, in 1844, before 
 the House of Lords, on an appeal from Ireland. The facts of 
 this case are, that the defendant, Millis, being a member of the 
 established church, was married, in Ireland, to a woman who 
 was either a member of the same church or a dissenter, by a 
 Presbyterian minister, according to the form usual with Pres- 
 byterian dissenters ; and, under the marriage, the parties 
 cohabited for two years as husband and wife. Afterward, 
 while this woman was living, he married in England another 
 woman, in a form about which no dispute arose. He was 
 indicted in Ireland for polygamy. The first marriage con- 
 tained all the ingredients essential in a contract 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 
 English Lords, on the question coming before them, consulted 
 the common-law judges of England ; and the latter unani- 
 mously advised, that the first marriage was, as a foundation 
 for the indictment, invalid. But the Lords, who gave judg- 
 ment, were equally divided ; Brougham, Denman, and Camp- 
 bell being in favor of sustaining the first marriage ; the Lord 
 Chancellor (Lyndhurst), Cottenham, and Abiuger being of 
 the opposite opinion. So the rule Semper prcesumitur pro 
 
 1 Fras. Dom. Eel. 87 et seq. 2 26 Geo. 2, c. 33, a. d. 1753. 
 
 233 
 
§ 277 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 negante applied, and judgment was formally rendered for the 
 defendant.^ 
 
 § 276. Observations on Reg. V. MiUis — The Sort of Learning 
 required for the Discussion. — The question, in the House of 
 Lords, was discussed most elaborately by counsel ; also by 
 Lord Chief Justice Tindal, who pronounced the opinion of the 
 judges ; and by the Lords above named, who gave opinions 
 seriatim. It was likewise . thoroughly examined in the court 
 below. The report of the case before the Lords fills 374 of the 
 ample pages of Clark & Finnelly's Reports, and is a mine of 
 learning, though perhaps not altogether of wisdom, on the sub- 
 ject. The difficulty was, that the greater part of those who 
 were required to discuss the question were deficient in the par- 
 ticular collateral knowledge essential to the formation of an 
 intelligent judgment upon what was found in the books. Or, 
 to state the exact truth, the result hinged upon the under- 
 standing which the court should form of some things connected 
 with the doctrines and practice of the ecclesiastical courts ; 
 no ecclesiastical judge was present to help the tribunal, which 
 was swayed by the opinions of the common-law judges ; and 
 those judges, although learned in their own department, knew 
 almost nothing of ecclesiastical law, nor was time allowed 
 them to supply the deficiency by study. Lord Chief Justice 
 Tindal complained of the want of time to give to the subject 
 the attention desirable ; and throughout his opinion appeared 
 conscious of what was true, that he and his associates, driven 
 to the work without due preparation, did not constitute the 
 advisory tribunal to which this question ought to have been 
 submitted. From these facts, coupled with the fact that the 
 ecclesiastical judges, whose pursuits lead them into .the collat- 
 eral knowledge most important for the solution of this class of 
 questions, were, both before and afterward, of opinion opposite 
 to what was arrived at by the common-law judges in this case, 
 we may infer, that further study and reflection would have led 
 the common-law judges also into sustaining, by their opinion, 
 this marriage. 
 
 § 277. Continued. — The opinions alike of judges and lords 
 
 1 Eeg. ■/. MilKs, 10 CI. & F. 534. 
 234 
 
CHAP. XIII.J FORMAL SOLEMNIZATION. § 277 « 
 
 were apparently based upon the view taken of the common 
 law of England. Yet there were several statutes relating to 
 Ireland, more or less considered in the arguments ; one of 
 which, in particular, had great weight with the Lord Chan- 
 cellor, and it may have turned the scale. It was Stat. 58 
 Geo. 3, c. 81, which provided, that thereafter there should no 
 " suit or proceeding be had in any ecclesiastical court in Ire- 
 land, in order to compel a celebration of any marriage in facie 
 ecdesice, by reason of any contract of matrimony whatever, 
 whether per verba de prcesenti or per verba defuturo." The 
 Lord Chancellor deemed, that the eifect of this statute had 
 been to change entirely 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 answerable for his reasons, yet he 
 employed language inconsistent witli the idea of their opinions 
 resting upon any other basis than the English common law as 
 unaffected by marriage acts. 
 
 § 277 a. Continued — Some General Views. — It does not 
 seem to the writer advisable to discuss over again this question 
 in these ps^ges. There are one or two points, however, so liable 
 to be overlooked that it becomes important to direct the reader's 
 attention to them. The leading one is the doctrine relating to 
 marriage laws, stated further on,^ that all regulations concern- 
 ing the forms of marriage, whether made by ecclesiastical 
 councils or by legislative act, are directory only, not affecting 
 the validity of a marriage had in disregard of them, unless 
 they contain an express clause of nullity. This consideration, 
 which seems not to have been in the minds of the common- 
 law judges in advising in the case of The Queen v. Millis, dis- 
 poses of a large proportion of the arguments against the mar- 
 riage without clerical intervention.^ There were, in former 
 
 i Page 871 of the report of the case clesiastical Law " was undoubtedly 
 
 of Eeg. V. Millis, which commences 10 well stated (ante, § 54) ; but the effect 
 
 CI. & F. 534. And see also the opinion of the doctrine could only be to weaken 
 
 of Lord Cottenham, p. 890. The same somewhat one of Lord Stowell's minor 
 
 was also held by Mr. Justice Crompton, arguments employed in the Dairy mple 
 
 in the Court below. See p. 552, and case. Whatever conclusion the reader 
 
 Dix's Eep. 254. may arrive at, he will certainly sympa- 
 
 2 Post, § 283. thize with Lord Cottenham, who says, 
 
 3 The doctrine of the "King's Ec- that, in the course of a long professional 
 
 235 
 
§ 277 6 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 times, numerous canons, and the like, making it an offence 
 against the church for people to marry without the presence of 
 the priest, but these were never construed to render the mar- 
 riage in violation of them void. And we shall see, in the proper 
 place,^ that this is an interpretation differing from what is more 
 frequently applied by the common-law courts to statutes rela- 
 ting to other subjects. 
 
 § 277 b. Continued — Dower, &c. — Again, in the conimon- 
 law courts, there could in the early times be no dower unless 
 the marriage was celebrated by a priest. To illustrate this and 
 some other things, let us lay before us a late edition of Britton, 
 by Nichols, with the editor's translation and some collected 
 notes. The editor, on a careful examination, puts the date of 
 this legal classic at about 1291 or 1292 ; namely, 20 Edw. I. 
 The reader may like to compare this date with some which 
 have been previously given.^ It is well known that the com- 
 mon-law right of dower originated in a custom for the husband, 
 or some other person, voluntarily to assign dower to the woman 
 at the celebration of the nuptials " at the church door," as the 
 phrase was. Consequently Britton says : " Dower is not as- 
 signed 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 otherwise dower may be 
 demanded." ^ But wliat is the meaning of the phrase " at the 
 door of the church " ? This is explained in a note by a con- 
 temporaneous lawyer and judge, appended to this very pas- 
 sage, and it has been preserved by the editor. Says the annota- 
 tor : " Every contract of marriage, at which there is present 
 a parish priest and his clerk, is at the church door, and suffi- 
 ciently solemn ; for it is in facie ecclesice." Now, bearing this 
 
 life, he has not met with a question so 2 Ante, § 51, 54. 
 embarrassing, p. 873. 3 Britton, 6, 1, 2, p. 236 of Vol. 2 
 
 1 Post, § 286. Nich. ed. 
 
 236 
 
CHAP. XIII.] FORMAL SOLEMNIZATION. § 277 b 
 
 explanation in mind, lot ns turn to another passage in this 
 ancient author. Speaking of the recovery of dower by action, 
 he says : " Again, the tenant may say, that, although she [the 
 widow] was lawful wife, yet she ought not to have dower, 
 because she was never solemnly married at the church door, 
 and consequently dower was never established upon her thei-e. 
 And if this be verified, 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 inheritance 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 publicly or pri- 
 vately performed. And yet the mother shall not have dower 
 by reason of that cliild, 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." ^ Seeing, 
 then, that a marriage performed by the intervention of the 
 priest was not deemed to have been secret, but to have been cele- 
 brated at the " church door," or in facie ecclesice, we have here a 
 clear exposition of the better common-law doctrine. Now, if 
 we take out of our view the old ecclesiastical inhibitions of 
 marriage celebrated otherwise than " at the church door," and 
 
 1 Britton, p. 262 of Vol. 2, Nich. ed. 2 lb. p. 266. 
 
 237 
 
§ 278 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 the old commoulaw cases which held that there could be no 
 dower wheu the marriage was not " at the church door," we 
 shall find but little of even apparent authority left to sustain 
 the doctrine, that any thing connected with the " church door " 
 was an essential element in marriage ; leaving unquestioned 
 what Britton tells us was the law of his day, that marriage 
 without clerical intervention is good, even though celebrated in 
 private. 
 
 § 278. Reg. V. MiUis, continuea — IrisTi Law — Colonial. — In 
 consequence of the divided opinion under which the judgment 
 in The Queen v. Millis was pronounced, and the circumstances 
 of haste and pressure under which the law of the case was 
 examined by the advising common-law judges, it, of course, is 
 not entitled to any particular weight in the United States, 
 even if there were no more substantial objections against it. 
 Yet in England, after some doubt had been raised, it was held 
 to be binding on the courts, although rendered by a court 
 equally divided in opinion. ^ Yet if it settles the law for Ire- 
 land, the author does not see how it should be accepted as 
 settling the law for the colonies, any more than the prior con- 
 trary decisions rendered by British courts upon the Scotch 
 law 2 had settled the question for Ireland. And in the Con- 
 sistory Court of London, in the year 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 ques- 
 tion 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 alluding 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 a mensd et ihoro. 
 I am not disposed to carry the decision in that case one iota 
 
 1 Attorney-General v. Dean and 11. 455 (also reprinted in a note to 
 
 Canons of Windsor, 8 H. L. Cas. 369, § 173, 2d and 3d eds. of this work), 9 
 
 392, 393. And see Catherwood v. Cas- H. L. Cas. 274. 
 Ion, 13 M. & "W. 261, 8 Jur. 1076 ; 2 Ante, § 274. 
 Beamish v. Beamish, 1 Jur. n. b. part 
 
 238 
 
CHAP. XIII.] FORMAL SOLEMNIZATION. § 279 
 
 further than it went, for two reasons : first, as the law lords 
 ■were divided, it was only in consequence of the form in whicli 
 that case came before them, there could bo considered to be a 
 judgment at all ; in the second place, were I to hold the pres- 
 ence 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 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 controlled by a superior authority, for 
 no further examination of the question will induce me to 
 change my opinion, most unquestionably 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 pronounce, when necessary, 
 a decree of separation." ^ The court also held, that this mar- 
 riage could not be decreed void in a suit for nullity.^ In a 
 more recent case, the Court of Queen's Bench, in our neigh- 
 boring province of Upper Canada, intimated an opinion adverse 
 to receiving the decision in The Queen v. Millis as sufficient to 
 establish the law of marriage in accordance with the doctrine 
 maintained by the common-law judges.^ 
 
 § 279. How in our States. — The doctrine, that the interven- 
 tion of a person in holy orders is essential to marriage, has 
 found small support in Miis country. Such intervention has 
 been held to be unnecessary at the common law, by the courts 
 of New York,* New Jersey ,5 Pennsylvania," Kentucky '' (but the 
 law was afterward changed by statute®), Vermont substau- 
 
 1 Catterall v. Catterall, 1 Robertson, 325, 7 Abb. Pr. n. s. 16; Van Tuyl v. 
 580. Van Tuyl, 57 Barb. 235, 8 Abb. Pr. 
 
 2 Catterall v. Sweetman, 1 Robert- n. s. 5 ; ante, § 255 et seq. 
 
 son, 304. ^ Pearson v. Howey, 6 Halst. 12, 18, 
 
 2 Breakey v. Breakey, 2 U. C. Q. B. 20, where Ford, J., so held, —the other 
 
 349. judges being silent upon the point. 
 * Fenton w. Reed, 4 Johns. 52 ; Starr " Hantz v. Sealey, 6 Binn. 405; 
 
 V. Peck, 1 Hill, N. Y. 270 ; Rose v. Commonwealth v. Stump, 3 Smith, Pa. 
 
 Clark, 8 Paige, 574 ; Clayton v. War- 132. 
 
 dell, 4 Comst. 230 ; Cunningham v. 1 Dumaresly v. Fishly, 8 A. K. Mar. 
 
 Burden, 4 Bradf. 343 ; Grotgen v. Grot- 368. 
 
 gen, 8 Bradf. 373 ; Hayes v. People, 25 8 Estill v. Rogers, 1 Bush, 62 ; 
 
 N. Y. 390 ; Bissell v. Bissell, 55 Barb. Stewart v. Munchandler, 2 Bush, 278. 
 
 239 
 
§279 
 
 MARRIAGE IMPERFECTLY CONSTITUTED. .[BOOK III. 
 
 tially/ of Ohio,2 Tennessee/ Alabama,* possibly New Hamp- 
 shire,^ of Maryland,^ South Carolina,^ and California.^ The 
 same has been held in Louisiana, which State derived its com- 
 mon law from Spain, the Council of Trent never having been 
 deemed binding in the colony, though received in the mother 
 country.^ And never probably has a contrary judgment been 
 deliberately pronounced by the tribunals of any State of our 
 Union. It was, however, strongly expressed by the Supreme 
 Court of North Carolina, that the common law of that State 
 recognized no marriages otherwise than according to the 
 statutes,!'' — " as to which," the court observed in a subsequent 
 case, "we express no opinion." ^^ And in Massachusetts a 
 distinguished judge observed: " When our ancestors left Eng- 
 land, and ever since, it is well known that a lawful marriage 
 there must be celebrated before a clergyman in orders," — 
 language showing conclusively that he had not bestowed upon 
 the subject any degree of his usual research. ^^ In Maine this 
 
 1 Newbury v. Brunswick, 2 Vt. 151. 
 See Nortlifield v. Plymouth, 20 Vt. 
 582 ; The State v. Rood, 12 Vt. 396. 
 
 2 Carmichael v. The State, 12 Ohio 
 State, 553. 
 
 3 Bashaw u. The State, 1 Yerg. 
 177; Grisham v. The State, 2 Yerg. 
 589. 
 
 * The State v. Murphy, 6 Ala. 765 ; 
 2 West. Law Jour. 192. Perhaps the 
 question is not fully settled in this 
 State. Robertson v. The State, 42 Ala. 
 509 ; Campbell v. GuUatt, 43 Ala. 57. 
 
 5 Londonderry u. Chester, 2 N. H. 
 268, 277. And see Keyes v. Keyes, 2 
 Fost. N. H. 553. But compare these 
 with Dunbartou v. Franklin, 19 N. H. 
 257. 
 
 <> Cheseldine u. Brewer, 1 Har. & 
 McH. 152. This case is, to appear- 
 ance, overruled, and the doctrine held 
 the other way, in the subsequent case 
 of Denison v. Denison, 85 Md. 361, as 
 to which see the next section. 
 
 1 10 McCord's Stat. 357, Ed. note ; 
 S. C. Law Jour. 384. 
 
 8 Graham v. Bennet, 2 Cal. 503. 
 Consult, however, *Holmes u. Holmes, 
 1 Abb. U. S. 525. 
 
 8 Patton I'. Philadelphia, 1 La. An. 
 
 240 
 
 98 ; Holmes v. Holmes, 6 La. 463 ; Suc- 
 cession of Prevost, 4 La. An. 347, 349 ; 
 Hallett V. Collins, 10 How. U. S. 174; 
 ante, § 269. 
 
 i» The State ;;. Samuel, 2 Dev. & Bat. 
 177. The question in this case was, 
 whether marriages by cohabitation 
 among slaves were valid, and they 
 were held not to be so. But the deci- 
 sion rested as much on the legal inca- 
 pacity of slaves to marry — see ante, 
 § 154 et seq. — as on the view taken of 
 the common law of the State. 
 
 11 The State v. Ta-cha-na-tah, 64 N. 
 C. 614. See Cooke v. Cooke, Phillips, 
 583. 
 
 12 Milford V. "Worcester, 7 Mass. 48, 
 53. See also 2 Dane Abr. 291 ; 9 ib. 
 161 ; post, § 285. Mr. Gray, in a note 
 to Oliver u. Sale, Quincy, 29, has re- 
 ferred to an old Massachusetts case 
 which seems to shed much light on 
 this question. His words are: "In 
 1758, it was adjudged by the Superior 
 Court of Judicature, that a child of a 
 female slave ' never married according 
 to any of the forms prescribed by the 
 laws of this land,' by another slave, 
 who ' had kept her company with her 
 master's consent,' was not a bastard. 
 
CHAP. XIII>] FORMAL SOLEMNIZATION. § 279 a 
 
 question is still undecided ; ^ though there the court seems to 
 have taken it for granted that the statutory forms must be fol- 
 lowed.2 The question coming before the Supreme Court of 
 the United States, the bench was equally divided.^ Chancellor 
 Kent, Judge Reeve, and Professor Greenleaf, in their text- 
 books, have considered clerical intervention to be unnecessary 
 at the common law,* and this may well be deemed the Ameri- 
 can doctrine.^ The doctrine otherwise expressed is, that the 
 marriage by mere consent, as explained in our last chapter, is 
 good throughout the United States, except in some States 
 where local statutes have provided otherwise. 
 
 § 279 a. Continued — Maryland. — There is, however, as ob- 
 served in a note to the last section, a Maryland case which, at 
 the first impression, might seem to be a decision in favor of 
 the doctrine of the necessity of clerical intervention. In this 
 case the court, overruling a former decision not deemed to be 
 of binding force,^ held, that the unwritten law of the State 
 required some official or religious ceremony to make the mar- 
 riage valid. " We think we are safe in saying," said Alvey, 
 J., in delivering the opinion of the court, " tiiat there never 
 has been a time in the history of the State, whether before its 
 independence of Great Britain or since, when some ceremony 
 or celebration was not deemed necessary to a valid marriage. 
 In the early days of the province, it was not absolutely neces- 
 sary that a minister of religion should ofl&ciate, — a judge or 
 magistrate could perform the ceremony, — but still, in all 
 
 Referring to Flora's Case, Rec. 1758, 2 The State v. Hodgskins, 19 Maine, 
 
 fol. 296. We hare already seen, ante, 155. 
 
 § 155, that negro slaves could contract 3 .Jewell v. Jewell, 1 How. U. S. 
 
 valid marriages in Massachusetts, the 219. See Blackburn v. Crawfords, 3 
 
 same, precisely, as free white people ; Wal. 175. And see ante, § 254, note, 
 and it is difficult to assign any meaning < 2 Kent Com. 87 ; Reeve Dom. 
 
 to this Flora's Case unless it is, that all Rel. 195 et seq. ; 2 Greenl. Ev. § 460. 
 marriages were by the court deemed to ^ As to marriage under the Mexican 
 
 be good, though there was no formal law, formerly prevailing in California, 
 
 solemnization, nor the presence of a see Harman v. Harman, 1 Cal. 215. 
 
 priest in holy orders, or of any official As to the law of Mississippi, see Har- 
 
 person. groves v. Thompson, 31 Missis. 211. 
 
 1 Brunswick v. Litchfield, 2 Greenl. As to Indiana, see Roche v. Washing- 
 
 28 ; Damon's Case, 6 Greenl. 148 ; ton, 19 Ind. 53, 57. 
 Cram v. Burnham, 5 Greenl. 213 ; " Cheseldine v. Brewer, 1 Har. & 
 
 Ligonia v. Buxton, 2 Greenl. 102. McH. 152. 
 
 VOL. I. 16' 241 
 
§ 281 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 cases, some formal celebration was required." ^ Now this, the 
 reader perceives, is not the doctrine which demands clerical 
 intervention ; that is, the presence, at the nuptials, of a priest 
 either of the Church of Rome or the Church of England. It 
 is an affirmance of a special custom, or common law, for 
 Maryland. 
 
 § 280. Chancellor Walworth's Opinion. — Chancellor Wal- 
 worth considers the ancient common-law doctrine to have 
 been, tliat the marriage was invalid unless celebrated in facie 
 ecclesice, but adds : " The law on this subject, however, was 
 unquestionably changed at the Reformation, if not before. 
 For it is now a settled rule of the common law, which was 
 brought into this State by its first English settlers, and which 
 was probably the same among the ancient Protestant Dutch 
 inhabitants, that any mutual agreement between the parties, 
 to be husband and wife, in prcesenti, especially where it is 
 followed by cohabitation, constitutes a valid and binding mar- 
 riage, if there is no legal disability on the part of either to 
 contract matrimony." ^ 
 
 § 281. How it should be in our States. — Whether the American 
 courts will be influenced by the opinions expressed adversely 
 to this kind of marriage in The Queen v. Millis, and so the 
 shadow go back on the dial-plate of our jurisprudence, must 
 be left for future judicial determination. Our courts have 
 withstood the pressure of this decision for a good many years, 
 without being much moved by it. And it is hardly to be pre- 
 sumed, that a decision which could not materially divert the 
 course of judgment in Doctors' Commons at horae,^ will -pro- 
 duce a greater effect in the tribunals of this country. If, 
 however, a tendency in the direction indicated should be 
 manifested here, we might not improperly inquire, whether, 
 admitting for the argument, that the common law of England 
 at the time of our emigration did make necessary the presence 
 of a person in holy orders, this part of it was adopted by us, 
 as suited to our new situation and peculiar institutions. If 
 it was not, then we fall back on the law of nature ; whereby, 
 
 1 Denisou v. Deuison, 35 Md. 361, in Clayton u. Wardell, 4 Comst. 230, 
 379. 232. 
 
 2 Rose V. Clark, 8 Paige, 674 ; s. p. 3 Ante, § 278. 
 
 242 
 
CHAP. XIII. J . FORMAL SOLEMNIZATION. § 282 
 
 as already seen,i marriage is constituted by the mutual pres- 
 ent consent of two competent persons, without the addition of 
 any formalities. The doctrine contended for as belonging to 
 the common law, it should be remembered, is, that the minis- 
 ter 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 Epis- 
 copal ordination. This was the law of the Catholic Church in 
 England, and the same law" continued after the 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 layman, 
 and his presence of no avail.^ 
 
 § 282. Continued. — Let US, then, imagine to ourselves a 
 company of Puritan dissenters from the churches both of 
 Rome and of England, fleeing to these western wilds to escape 
 what they deemed oppression and moral contagion in both of 
 those churches, yet importing an ecclesiastic of the hated order, 
 and paying him tithes, simply to make him an invited guest 
 at their weddings ! ^ Though the American colonies were not 
 all settled by Puritans, the 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 proesenti is 
 admitted by those who do not deem it a perfect marriage to 
 be,* could find no favor with the pure morals and stern habits 
 of the early settlers of this country ; therefore, as they could 
 not treat it as a nullity, they would invest it with the entire 
 completeness of marriage. Furthermore, the known impossi- 
 bility, 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.^ 
 
 1 Ante, § 218, 219, 227-229. in Londonderry v. Chester, 2 N. H. 268, 
 
 2 Reg. V. Millis, 10 CI. & P. 534, 278. 
 
 861, 906 ; Londonderry v. Chester, 2 « Ante, § 272. 
 N. H. 268, 271 ; ante, § 270. 5 Post, § 392. 
 
 2 See the remarks of Woodbury, J., 6 gee also the remarks of the court 
 
 243 
 
§ 282 a MARRIAGE IMPERFECTLY CONSTITUTED. , [BOOK III. 
 
 § 282 a. Continued. — As confirming this suggestion, may be 
 cited the Maryland case, already stated,^ as truly viewed. To 
 be sure, according to the decision in this case, a common law, 
 adverse equally to the law of nature and the law of England, 
 had grown up in the colony and State. The judges gave to 
 the local usage a wider significance than most judges would 
 do ; at the same time, it illustrates the principle. The same 
 principle is further illustrated in some observations by the 
 late Mr. Justice Story. A local usage had grown up in New 
 England, or, at least, in some of the New England States, 
 and some others, and had ripened into a common law, that a 
 wife could convey her lands by a deed in which her husband 
 joined, without the formality of levying a fine.^ And this 
 learned judge observed : " It probably originated in the neces- 
 sities 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. The same necessity has produced similar results 
 in other parts of the Union." ^ 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, com- 
 pared with the difiiculty of procuring the presence of a priest 
 in orders at the marriage. In Maryland, a priest could have 
 been at any time had ; yet, even there, according to this Mary- 
 land case, a usage had ripened into a law rendering his pres- 
 ence unnecessary. A fortiori, therefore, it must have been so 
 in the other colonies. Again, it may be well questioned 
 whether there ever was, in this country, a priest in orders, 
 within the true meaning of the supposed rule which requires 
 his presence at marriages. In England there is a certain 
 connection between church and state which we never had, and 
 which makes a priest an official person of a certain sort. Those 
 who with us are called priests have no special relations to the 
 government; and it is not apparent how their presence at 
 marriages could amount to any thing more than that of lay 
 
 in Dumaresly v. Fishly, 3 A. K.' Mar. 2 \ Bishop Mar. Women, § 588 and 
 368. note. 
 
 1 Ante, § 279 a. 3 Manchester v. Hough, 5 Mason, 
 
 67, 69. 
 244 
 
CHAP. XIII.J FORMAL SOLEMNIZATION. § 283 
 
 persons, or of dissenting ministers of religion in England, 
 which is there regarded as of no avail. 
 
 II. Sow Statutes concerning the Forms are to he interpreted. 
 
 § 283. General Doctrine — Clause of Nullity. — Assuming, 
 then, that the contract per verha de prcesenti sine copula, or per 
 verba de futuro cum copula,^ constitutes, at the common law, 
 a complete marriage, we are next to seek for the rules of 
 interpretation to determine, whether or not, in a given case, 
 a statute has altered the law upon the s<ibject. The principle 
 is by no means universal, that, when a statute directs a thing 
 to be done in a particular way, it is void done in any other 
 way ; sometimes indeed it is, not always. The distinction 
 relates to what are termed mandatory and directory statutes. 
 If a statute is mandatory, a thing done not according to its 
 directions is void ; if directory, it is not void. Yet it is not 
 easy, probably not possible, to lay down in advance a rule by 
 which it can certainly be determined what statutes are direc- 
 tory, and what are mandatory.^ The nature of the subject has 
 something to do with the question. If we remember, there- 
 fore, that marriage existed before statutes, that it has ever 
 been regarded as a thing to be favored in the law, that also 
 it is of natural right, — we shall see very plainly, that, what- 
 ever directions a statute may give concerning its solemnization, 
 it should be held good, though not solemnized according to 
 the directions. Consequently, the doctrine has become estab- 
 lished, that a marriage good at the common law is good not- 
 withstanding the existence of any statute on the subject, unless 
 the statute contains express words of nullity. This rule applies, 
 not only to the statute as a whole, but to the several parts of 
 it ; so that, if it declares the marriage void for non-compliance 
 with a particular provision, it is good notwithstanding a failure 
 to comply with any other provision. This rule, like most other 
 legal rules now well settled, has struggled against some doubts 
 and uncertainties, but it seems never (unless we except a 
 Massachusetts decision to which we shall presently refer ^) to 
 have been discarded in actual adjudication.* 
 
 1 Ante, § 218, 219, 246. s Post, § 285. 
 
 2 Bishop Stat. Crimes, § 255, 256. * Catterall v. Sweetman, 1 Eobertr 
 
 245 
 
§ 284 MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK III. 
 
 § 284. niustrations of the Rule as to Clause of Nullity. — TllUS, 
 where a local statute of the colony of New South Wales pro- 
 vided, among other things, that Presbyterian ministers might 
 solemnize marriages between persons of the Presbyterian 
 communion, but not until the parties had acknowledged 
 themselves, in a written declaration in duplicate, to be 
 members of this communion ; the Consistory Court of Lon- 
 don held, that a marriage was not void by reason of non- 
 compliance with the statute, though both the parties were 
 members, not of the Presbyterian Church, but of the English 
 Episcopal, and though they had not made the declaration 
 required by the act.^ So where in Pennsylvania it was pro- 
 vided, that " all marriages shall be solemnized by taking each 
 other for husband and wife before twelve sufficient witnesses," 
 marriages were held to be good, not celebrated in accordance 
 with the statute. Ii> pronouncing this opinion, however, 
 the court seemed not entirely confident of its intrinsic correct- 
 ness ; but observed, that a contrary determination would 
 bastardize the greater part of the children born for the last 
 half-century.2 And where the statute of New Hampshire 
 allowed justices of the peace and nlinisters of the gospel to 
 solemnize marriages ; then provided penalties to be inflicted 
 on these authorized persons solemnizing them otherwise than 
 according to certain directions laid down ; then added, in 
 another section, that, " if any person not authorized and 
 empowered to solemnize marriages by this act, shall join 
 
 son, 304 ; Stallwood v. Tredger, 2 Phil- 463 ; Cannon v. Alsbury, 1 A. K. Mar. 
 
 lira. 287 ; Londonderry v. Chester, 2 N. 76 ; Parton v. Hervey, 1 Gray, 119 ; 
 
 H. 268 ; Pearson v. Howey, 6 Halst. 12, White v. Lowe, 1 Eedf. 376 ; CampbeU 
 
 19, 20, opinion of Ford, J. ; Rodebaugh v. Gullatt, 43 Ala. 57 ; Blackburn v. 
 
 V. Sanks, 2 Watts, 9, 11 ; Helffenstein Crawfords, 3 Wal. 175. And see The 
 
 V. Thomas, 5 Rawle, 209 ; The State v. State v. Murphy, 6 Ala. 765 ; North- 
 
 Eobbins, 6 Ire. 23 ; Newbury v. Brilns- field v. Plymouth, 20 Vt. 582. Post, 
 
 wick, 2 Vt. 151 ; Lacon v. Higgins, 3 § 294. 
 Stark. 178, D. & R. N. P. C. 38; Du- i Catterall v. Sweetman, 1 Robert- 
 
 maresly v. Pishly, 3 A. K. Mar. 
 Eex V. Birmingham, 8 B. & C. 29, 34 
 Hargroves v. Thompson, 31 Misso. 211 
 
 son, 304. And see Catterall v. Catterall, 
 1 Robertson, 580. See also Chichester 
 V. Mure, 3 Swab. & T. 223, where this 
 
 Park I). Barron, 20 Ga. 702 ; Stevenson case, and the general doctrine here 
 
 0. Gray, 17 B. Monr. 193, 209 ; Ferrie laid down, are discussed. 
 
 V. The Public Administrator, 4 Bradf. 2 Rodebaugh v. Sanks, 2 Watts, 9 ; 
 
 28. See Bradshaw v. The State, 1 s. p. Helffenstein v. Thomas, 5 Rawle, 
 
 Yerg. . 177 ; Milford v. Worcester, 7 209. 
 
 Mass. 48, 55 ; Holmes v. Holmes, 6 La. 
 
 246 
 
CHAP. XIII.j FORMAL SOLEMNIZATION. § 285 
 
 any persons in notai-riage, whether with or without publish- 
 ment, and he be convicted thereof, &c., he shall _^pay a fine 
 not to exceed £100 nor be less than £30;" the court held, 
 that the parties might still contract a valid marriage at the 
 common law, without the presence of a justice or minister.^ 
 So where the first English marriage act (Lord Hardwicke's) 
 contained the clause " 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," the marriage 
 was held good, solemnized in a different place.^ And where 
 a statute prohibited the solemnization of marriage without a 
 license, the marriage was declared to be valid, though no 
 license was had.^ Also where the statute required that the 
 marriage license should be taken out in a particular county, 
 yet in the case in question it was taken out in another county, 
 the marriage was held to be good. Said the judge : " In 
 any view, these directory provisions, though prohibitory and 
 "even penal with respect to the officers, have not been regarded 
 as affecting the validity of a marriage otherwise legal." * 
 
 § 285. Continued. — Where, however, in Massachusetts, a 
 statute provided, that no persons but justices of the peace and 
 ministers of the gospel should solemnize marriage, and they 
 only in certain specified cases ; it was held, that the parties 
 were themselves precluded from solemnizing their own mar- 
 riage, and that a marriage by mutual agreement, not accord- 
 
 i Londonderry v. Chester, 2 N. H. stated, but Sir John NichoU himself 
 
 268. pronounced for the validity of tlie mar- 
 
 2 Stallwood V. Tredger, 2 Phillim. riage on the ground that the publica- 
 287; compare with Catterall u. Sweet- tion of the banns, though in fact such 
 man, 1 Robertson, 304, 315. This publication took place in the parish of 
 case of Stallwood u. Tredger, if it St.' George's, Southwark, must, Imder 
 stood alone, would hardly be adequate the particular circumstances, be con- 
 to support the doctrine as stated in the sidered legally as haying taken place 
 text ; because, in fact, leaving out of in the parish church of St. Mary, New- 
 view certain dicta which fell from Sir ington, in which parish the marriage 
 John NichoU, who sat in the Arches was solemnized." 
 Court, he put his decision on another ^ Cannon v. Alsbury, 1 A. K. Mar. 
 ground. In Chichester v. Mure, 3 Swab. 76 ; Holmes v. Holmes, 6 La. 463. 
 &, T. 223, 232, the judge ordinary * Stevenson v. Gray, 17 B. Monr. 
 said of this case : " On what ground 193, 209, 210, opinion by Marshall, C. 
 the Court of Delegates supported the J., s. p. Gatewood v. Tunk, 3 Bibb, 
 decision of Sir John Nicholl is not 246. 
 
 247 
 
§ 285 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 ing to the statute, was void.^ But this opmioii, evidently a 
 departure from the general doctrine, was based on the assump-' 
 tion, that such a marriage would be void at the common law.^ 
 And on a later occasion, the court of this State held the mar- 
 riage of minors, entered into without consent of parents, 
 good ; though a statute prohibited, under a heavy penalty, 
 ministers and magistrates to solemnize such marriage without 
 such consent.^ In commenting on the New Jersey statute. 
 Ford, J., well remarked : " Suppose this act had gone to 
 the whole extent of declaring, that no other person or per- 
 sons should solemnize marriages except those mentioned in 
 it; such persons would commit an offence against the act by 
 solemnizing marriages, for which they might be punished, 
 but still the marriage contract between the parties themselves 
 would remain valid. During the Commonwealth of Eng- 
 land, Parliament passed a law requiring all marriages to be 
 solemnized by justices of the peace ; yet a marriage solem- 
 nized before a clergyman was holden, by all their courts, to 
 be valid as between the parties, though the statute prohibited" 
 such priest from doing it, and for the act he was exposed to 
 punishment.* Our act empowers an ordained minister of the 
 gospel to solemnize marriages ; but suppose a minister of 
 the gospel should do it before he is ordained, — can any per- 
 son believe, that the marriage itself would be invalid, and 
 that either of the parties might go away at any time after- 
 wards and contract a new alliance ? Our statute prohibits 
 ministers of tlae gospel from solemnizing the marriage of 
 persons under age, without the consent of parents or guar- 
 dians, under a very heavy penalty ; but this does not render 
 
 1 Milford V. Worcester, 7 Mass 48, consider the Massachusetts law as be- 
 
 55. Thepresent marriage act of Massa- ing settled, by the above decision, the 
 
 chusetts is similar to that of New Hamp- other way is uncertain. And now, 
 
 shire, as described in Londonderry v. since the earlier editions of this work 
 
 Chester, ante, § 284 ; and it imposes a appeared, Mass. Gen. Stats, i;. 106, 
 
 penalty on persons who, knowing they hare somewhat varied the terms of 
 
 are not authorized, " shall undertake to the enactment ; but whether the sense, 
 
 join others in marriage." R. S. c. 75, I shall leave to others to decide. And 
 
 § 20. Under similar statutes, in most see ante, § 279 and note, 
 or all of the other States, parties would 2 Ante, § 279. 
 be competent to contract a valid mar- ^ Parton v. Hervey, 1 Gray, 119. 
 riage by mutual agreement alone ; but * See the cases on this subject col- 
 
 whether the Massachusetts court would lected in Reeve Dom. Rel. 198. 
 248 
 
CHAP. XIII.] FORMAL SOLEMNIZATION. § 287 
 
 the marriage void ; on the contrary, it remains sacred and 
 Inviolable, which is • the very thing that aggravates the of- 
 fence." 1 
 
 § 286. Comments on the Rule. — The rule of interpretation 
 we are considering^ was^idmitted by Dr. Lushington not to be 
 in accordance with the constructions which some other acts, 
 relating to other subjects, have received ; but " it must always 
 be remembered," he said, " that marriage is essentially distin- 
 guished from every other species of contract, whether of legis- 
 lative or judicial determination ; that this distinction has been 
 universally admitted ; that not only is all legal presumption 
 in favor of the validity and against the nullity of marriage, but 
 it is so on this principle, — that a legislative enactment to 
 annul a marriage de facto is a penal enactment, not only penal 
 to the parties, but highly penal to the innocent offspring, and 
 therefore to be construed, according to the acknowledged rule, 
 most strictly." Thus, as already mentioned,^ negative and 
 prohibitive words in a statute are often held to render what is 
 done under them void, but in a marriage act they do nofc have 
 this effect. And he observed, of the clause we have cited from 
 Lord Hardwicke's act,* that " these words are affirmative, nega- 
 tive, and prohibitory." ^ 
 
 § 287. Imposition of Penalty, &c. — One of the most frequent 
 forms in which this question arises is, where certain persons 
 are forbidden to solemnize marriage, or the authorized persons 
 are forbidden to exercise the authority in any other method 
 than the one prescribed, and the violators are subjected to pun- 
 ishment. And the rule, that a marriage in disregard of such 
 a penal prohibition is good, seems to be universally recognized.® 
 Thus where the local statute of Jamaica renaered it penal for 
 a minister to solemnize marriage without banns or license, the 
 late attorney-general of the colony stated, before the House of 
 Lords, on the hearing of a divorce bill, that in his opinion it 
 
 1 Pearson u. Howey, 6 Halst. 12, 20. son, 304. And see Bishop Stat. Crimes, 
 And see Holgate v. Cheney, Brayton, § 254-256. 
 
 158. 6 The State v. Bobbins, 6 Ire. .23 ; 
 
 2 Ante, § 283. Damon's Case, 6 Greenl. 148 ; London- 
 
 3 Ante, § 283. derry v. Chester, 2 N. H. 268, 276 ; and 
 * Ante, § 284. other cases cited ante, § 288 et seq. 
 
 6 CatteraU v. Sweetm^, 1 Robert- 
 
 249 
 
§ 287 a MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK m. 
 
 did not affect the validity of marriages celebrated without 
 banns or license, though the celebrator would be punishable.^ 
 And if a statute makes it penal for a clergyman to celebrate a 
 marriage without a license, still a marriage is good which is 
 celebrated by him in violation of the provision, whereby he 
 incurs the penalty.^ This rule seems not to be peculiar to the 
 common law. It exists also in Sicily : ^ so in Scotland, where 
 marriages contrary to the forms established by law are very 
 frequent, and no question remains as to their validity, the law 
 imposes severe penalties upon the parties, the celebrator, and 
 the witnesses.* 
 
 § 287 a. Limits of the Doctrine. — The foregoing views, the 
 reader perceives, proceed upon the assumption, that, indepen- 
 dently of the statute, the marriage would be good. Then, the 
 doctrine is, tliat, however much the statute may forbid, whether 
 under a penalty or not, a marriage celebrated in disregard of 
 the prohibition is good ; unless, added to the prohibition, there 
 is an express* clause of nullity. For example, by the unwritten 
 law of England, even as expounded in the case of The Queen v. 
 Millis, discussed under our last sub-title, a marriage, however 
 informal, is good if celebrated in the presence of a priest in 
 orders. Tlien, if a statute requires banns, or license, or puts 
 any other limitations upon the general right, whether the re- 
 strictions are upon the priest, the parties, or third persons, and 
 whether they are in the form of mere naked commands, or are 
 penal provisions, yet without a clause of nullity, a marriage 
 celebrated in violation of such a restriction is good. And quite 
 plainly the doctrine goes somewhat beyond this line ; yet how 
 far, it is impossible to say. Tims, even in affairs not matri- 
 monial, statutes airecting the mode of proceedings by public 
 ofBcers are, sometimes at least, if not always, to be construed 
 as merely directory, not making the proceedings invalid though 
 their terms should not be followed.^ And it but accords with 
 
 1 Chrewe's Case, Macqueen Pari. 2 Blackburn v. Crawfords, 3 Wal. 
 
 Pract. 599. When a statute makes the 175; Askew v. Dupree, 30 Ga. 173. 
 
 marriage void if persons laiowingly and 3 Herbert v. Herbert, 2 Hag. Con. 
 
 wilfully intermarry without the pubUca- 268, 4 Eng. Ec. 534, 540. 
 
 tion of banns, it is good unless both par- * 1 Eras. Dom. Rel. 120 et seq. 
 
 ties know that the banns were not ^ Holland u. Osgood, 8 Vt. 276, 280 ; 
 
 published. Rex v. Wroxton, 1 Nev. & Bishop Stat. Crimes, § 255. And see 
 
 M. 712, 4 B. & Ad. 640. Corliss v. CorUss, 8 Vt. 373, 390. 
 250 
 
CHAP. XIII.] FORMAL SOLEMNIZATION. § 287 a 
 
 the doctrine as expounded in the foregoing sections to say, that, 
 a fortiori, if a statute authorizes a magistrate or dissenting 
 minister of religion to celebrate marriage, the same rules regu- 
 late the interpretation of provisions concerning the exercise of 
 his functions as though he were a priest in orders. In an Eng- 
 lish case, heard before the full Divorce Court, it was attempted 
 to carry this doctrine to a point which the court would not 
 permit. One of the provisions of the Divorce Act was in the 
 following words : " When the time hereby limited for ap- 
 pealing against any decree dissolving a marriage shall have 
 expired, and no appeal shall have been presented against such 
 decree, or when any such appeal shall have been dismissed, or 
 when in the result of any appeal any marriage shall be de- 
 clared to be dissolved, but not sooner, it shall be lawful for the 
 respective parties thereto to marry again, as if the prior mar- 
 riage had been dissolved by death." ^ A divorced person married 
 before the time for appeal had expired ; and it was contended 
 that, within the rule we are contemplating, the marriage 
 was good. The argument was, that the divorce operated 
 by its legal effect to leave the party free to marry; then, as the 
 prohibition to marry before the expiration of the time for ap- 
 peal contained no clause of nullity, the marriage had in disregard 
 of the prohibition was good. The court, however, rejected this 
 view. " If the case of Catterall v. Catterall [or Sweetman],^ " 
 said the learned judge ordinary, Cresswell, " is to be taken 
 only to have decided that, when parties not incapable of con- 
 tracting marriage, who are under no disability at all, but who, 
 professing to contract and solemnize the marriage in some new 
 manner or form provided by statute not open to them before 
 [carrying here the doctrine further than is done in the proposi- 
 tions with which this section opened], and who, in making the 
 contract, and with reference to tlie solemnization thereof, dis- 
 regard some prohibitory enactments in such statute, that then 
 the marriage is not thereby made void unless there are words 
 nullifying the marriage, we see no reason to question the cor- 
 rectness of the decision. It is, however, quite a different ques- 
 tion, whether, in construing a statute which gives the veiy 
 
 1 20 & 21 Vict. c. 85, § 57. son, 304 ; Catterall v. Catterall, 1 Eob- 
 
 2 Catterall </. Sweetman, 1 Robert- ertson, 580 ; ante, § 284, 286. 
 
 251 
 
§ 288 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 right to contract at all, we are then to hold that the marriage 
 is good, notwithstanding a disregard of words negative and 
 prohibitory, which relate to the very capacity to contract, be- 
 cause there are no words expressly nullifying the coiitrac;t. .... 
 We have considered the case principally with reference to the 
 proper construction to be placed on the statute, and the weight 
 to be given to Catterall v. Sweetman, as an authority for the 
 construction contended for by the respondent. Some other 
 cases were cited, and a reference was made to text-books, par- 
 ticularly to Bishop's treatise on ' Marriage and Divorce.' We 
 think it unnecessary to notice all these authorities." But, it ap- 
 pearing that this case was distinguishable from those relied on 
 to support the marriage, the court adjudged it to be null.^ To 
 the writer, this decision appears sound on the principle, that, 
 construing all parts of the Divorce Act together, the marriage 
 was not fully dissolved, whatever the terms of the other parts 
 of the statute or the terms of the decree, until the period for 
 taking an appeal had elapsed. But if this view should not be 
 deemed sound, then the other remains ; namely, that, as the 
 right to remarry comes from the statute, the terms of the stat- 
 ute must be accepted as the measure of the right. This topic 
 will present itself in still other connections in future pages of 
 these volumes ; ^ but it is deemed best that the present discus- 
 sion of it should close here. 
 
 § 288. Form of the Marriage Ceremony. — In connection with 
 the foregoing discussion we are to consider the question, 
 whether or not it is necessary that, in the actual solemnization 
 of the marriage, there should be any particular form of ceremony 
 in order to comply with the requirements of the various mar- 
 riage statutes. We have already seen^ what is the consent 
 necessary in the absence of statutory and other like provisions ; 
 also we have seen,* that, according to the opinion of those who 
 hold the presence of a person in holy orders to be necessary 
 for the constitution of marriage at the common law, such 
 person, perhaps, need not take any active part in the marriage, 
 
 1 Chichester v. Mure, 3 Swab. & T. '- For example, post, § 293, 294, 304, 
 
 223, 230, 232. The doctrine of this case 306, 306 a, 308 b. 
 was affirmed without discussion, in ' Ante, § 216 et seq. 
 Rogers v. Halmshaw, 3 Swab. & T. i Ante, § 270. 
 609. 
 
 252 
 
CHAP. Xm.] FORMAL SOLEMNIZATION. § 289 
 
 and even if he refuges it is good. Now, if a statute fails to • 
 prescribe an exact form of ceremony ; or, if it prescribes such 
 form, yet does not declare marriages to be void entered into in 
 disregard of the form ; clearly, upon the principles already 
 recited, the marriage, where the mutual consent of the parties 
 is really passed, is good. And in a late English case, the 
 learned Vice-Chancellor, Sir William Page Wood, made the 
 following observations : " Though our law requires certain 
 formalities to be complied with, such as the publication of 
 banns and the like, as regards the ceremony itself it has never 
 been held that repetition of the words of the marriage service 
 is necessary. I have certainly known cases of complete mar- 
 riage, where perhaps it was improper that the marriage should 
 be celebrated, in which the parties, being of the poorer classes, 
 have wilfully abstained from making the responses, especially 
 that as to obedience on the part of the woman. Swinhurne 
 says, that any sign of assent is sufficient. When the hands of 
 parties are joined together, and the clergyman pronounces 
 them to be man and wife, they are married, if they understand 
 that by that act they have agreed to cohabit together, and 
 with no other person." ^ 
 
 § 289. Continued. — No particular form of words, therefore, 
 is essential to the solemnization of marriage, unless the statute 
 not only requires the words to be used, but declares the mar- 
 riage to be null where they are not used. It is sufficient for 
 the proper person, as a minister or justice of the peace, to be 
 present, and take cognizance of the mutual engagement of the 
 parties to assume the marital relation.^ But if such person — 
 so it was held in Massachusetts, contrary to what we have 
 seen to be claimed as the common-law doctrine — does not 
 consent to act in his official capacity, and does not so act, 
 though he is present, and witnesses their mutual undertaking, 
 the ceremony has no other effect than if witnessed by an un- 
 authorized person.^ Yet the defect would not, as we have 
 seen,* vitiate the marriage, unless the statute contained an 
 
 1 Harrod v. Harrod, 1 Kay & Johns. 280 ; Graham v. Bennet, 2 Cal. 503 ; 
 4, 16. And see People v. Taylor, 1 The State v. Rood, 12 Vt. 396. 
 
 Mich. N. P. 198. " Milford v. Worcester, 7 Mass. 48 ; 
 
 2 Pearson v. Howey, 6 Halst. 12 ; Mangue v. Mangue, 1 Mass. 240. 
 Londonderry v. Chester, 2 N. H. 268, * Ante, § 283. , 
 
 253 
 
§ 291 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 express clause nullifying all marriages not celebrated by such 
 official person. The Court of Queen's Bench in Ireland 
 decided that a clergyman may marry himself.^ This Irish 
 decision is contrary to the Massachusetts rule on another 
 subject. There a statute having provided for the submission, 
 before a justice of the peace, of claims to the award of arbitra- 
 tors, the submission is held to be void when one of the 
 arbitrators is the justice before whom it is made.^ And this 
 Irish marriage case, being carried by appeal before the House 
 of Lords, was there unanimously decided the other way, and 
 the marriage held to be void.^ 
 
 III. Some Particular Provisions of Statutory Law. 
 
 § 290. Course of the Discussion. — It would take US too far 
 into the field of local law to discuss fully the various statutory 
 provisions existing in England and in this country, relating to 
 the forms of marriage solemnization. Of those statutes whicii 
 inflict punishment upon clergymen and others for irregularities 
 in the celebration .of marriages, we shall briefly treat iu a 
 separate chapter.* \ There is a sliort chapter on " Marriage 
 Laws " iu the author's work on Statutory Crimes.* And there 
 are some other points, relating to the present sub-title, inter- 
 spersed in appropriate places throughout the discussions em- 
 braced in these volumes ; and still others were considered by 
 the author in his various works connected with the criminal 
 law.^ 
 
 § 291. "WTiat Locality — " Ordained Minister " — " Cure of 
 Souls." — It was provided in New Jersey, "that every justice 
 of the peace in this State," every " stated and ordained minis- 
 ter of the gospel," and " every religious society according to 
 its rules," should be empowered to solemnize marriage. And 
 the court held, that, under this statute, justices of the peace 
 
 1 Beamish v. Beamish, 1 Jur. s. s. 5 gjat. Crimes, § 737-739. 
 
 Part II. 455, and printed in full in the 6 gee, as relating to marriage, 1 
 
 2d and 3d eds. of this book. Bishop Crim. Law, 5th ed. § 373, 509, 
 
 2 Drew V. Canady, 1 Mass. 158 ; 555 ; 2 lb. § 218, 285, 422, 445 ; 2 Bishop 
 Deerfield v. Arms, 20 Pick. 480. Crim. Proced. § 244 ; Bishop Stat. 
 
 3 Beamish ^. Beamish, 9 H. L. Cas. Crimes, § 149, 222, 237, 254, 585, 593, 
 274. 598, 601-604, 606-613, 651, 663-665, 
 
 < Post, § 341 et seq. 666, 673. 
 
 254 
 
CHAP. SHI.] FORMAL SOLEMNIZATION. § 292 
 
 might marry out of their several counties, and ministers out 
 of their parishes.^ It was held, in Massachusetts, that a 
 person ordained as a minister of the gospel in the form observed 
 in the Baptist churches, and employed by two Baptist societies 
 in the town in which he lives, to preach to them alternately, 
 is, within the statute, " a stated and ordained minister of the 
 gospel," authorized to solemnize marriage. And it is the 
 same of a Methodist minister, ordained and afterward settled 
 in any town for two years, according to the usage of this 
 denomination.- So, in North Carolina, any person, it seems, 
 is a ministtM- of the gospel, who is such according to the rules 
 of the particular religious sect to which he belongs. And the 
 words, " cure of souls," used in the statute, do not operate to 
 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 bo something more than a minister 
 merely, and shall have the faculty, according"" to tiie constitu- 
 tion of his church, to celebrate matrimony, and, to some extent 
 at least, the power to administer the Chi-istiau sacraments, as 
 acknowledged and held by his church.^ 
 
 § 292. Publication of Banns. — Tliere are various decisions, 
 under the English marriage ftcts, concerning the publication of 
 banns. Thus, the baims should be published in the true 
 names of the parties, otherwise the publication is of no avail.* 
 But where, on an indictment for polygamy, 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. And the judge held, 
 
 1 Pearson i: Howoy, 6 Halst, 12. 1, § 2. (uil. 180S.) Goshen i: Stoning- 
 So in New Hiimpsliire, The State r. ton, 4 Conn. 209. 
 
 Kenn. 10 X. H. 347. 5 The State c. Bray, 13 lie. 289. As 
 
 2 Commonwealth r. Spooner, 1 Pick, to Now Hampshire, see The State v. 
 2oo. And see, to the like effei't, Kibbe Kean, supra ; as to Connecticut, Kob- 
 i . Antnun, 4 Conn. 184. But a deacon erts i-. The State Treasurer, 2 Root, 
 of he Methodist Episcopal Clun-ch, 881; as to Arkansas, The State r. AVil- 
 licenscd to preacli, and nctnally preach- lis, 4 Eng. 196. 
 
 ing as a travelling circuit preacher, * Cope r. Burt, 1 Hag. Con. 434, 
 upon a circuit including the town in 488 ; Wakefield r. Wakefield, 1 Hag. 
 which he dwells, is not "settled in the Con. 894, 401 ; Fellowes r. Stewart. 2 
 work of tlic ministry " witliiu the mar- Phillim. 238, 240 ; Hex c. Billiugshurst, 
 riage act of Connecticut. Stat. 106, c. S Jlaiilo & S. 250 ; Wriglit c. Ehvood, 
 
 1 Curt. Ec, t5t.i2, and many other cases. 
 
 255 ■ ■ 
 
§ 293 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 that he, "having signed 'the note for the publication of the 
 banns of himself and Anna Timson, and having signed the 
 register of his marriage with her by that name wherein she 
 went, should not be permitted to defend himself on the ground 
 that he did not marry Anna Timson, although such might not 
 be her name." ^ Marriage by license, in England, differs from 
 marriage by publication of banns, and it is not, or at least not 
 always, void, though the license is taken out under a false 
 name.2 
 
 CHAPTER XIY. 
 
 THE CONSENT OP PARENTS. 
 
 § 293. Ho'w at Common Law — Fleet Marriages. — At the 
 common law, the marriages of minors, without the consent of 
 their parents, were good ; ^ provided the infant parties them- 
 selves had arrived at what is called the age of consent as 
 explained in a previous chapter.* It used to be, as now, 
 unlawful in England to celebrate marriages in private, and so 
 no clergyman of reputation would marry any persons 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 
 
 > Rex 0. Edwards, Russ. & Ry. 283, <;. Smith, 2 Hag. Con. 193 ; Droney v. 
 
 284. See Rex v. Hind, Russ & Ry. Archer, 2 Phillim. 827; Priestly v. 
 
 253. Hughes, 11 East, 1 ; Hargroves v. 
 
 2 Lane v. Goodwin, 3 Gale &D. 610, Thompson, 31 Missis. 211 ; The Gov- 
 4 Q. B. 361 ; Dormer v. Williams, 1 ernor v. Rector, 10 Humph. 57 ; The 
 Curt. Ec. 870. State v. Dole, 20 La. An. 878 ; Wadd. 
 
 3 Rex V. Hodnett, 1 T. R. 96 ; Cannon Dig. 229. 
 
 V. Alsbury, 1 A. K. Mar. 76 ; Pool v. * Ante, § 143 et eeq. 
 
 Pratt, 1 D. Chip. 252 ; Coleman's Case, » Lord Mansfield, in Rex v. Hodnett, 
 
 6 N. Y. City Hall Reporter, 3 ; Horner supra. Mr. Macqueen, in his late work 
 
 0. Liddiard, 1 Hag. Con. 337 ; Fielder on " Divorce and Matrimonial Juris- 
 
 •• 256 
 
CHAP. XIV.J CONSENT OF PARENTS. § 294 
 
 want of the consent of parents was, in the language of the 
 ecclesiastical law, an impedimentum impeditivum, an impedi- 
 ment which threw an obstruction in the way of the celebration ; 
 but not an impedimentum dirimens, an impediment affecting 
 the validity of the marriage once solemnized.^ And the Ken- 
 tucky court has held, that a parent, as such, cannot maintain 
 an action for procuring, without his consent, the marriage of 
 an infant child ; though perhaps, if the child were a servant, 
 the suit might be maintained on the ground of loss of ser- 
 vices.^ 
 
 § 29-4. Lord Hardwicke's Marriage Act — Subsequent Legisla- 
 tion — Clause of Nullity. — Thus stood the common law as 
 brouglit by our forefathers to this country. In England, Lord 
 Hardwicke's marriage act^ at a later period provided, that all 
 marriages of minors, not in widowhood, solemnized by license 
 (not including marriages by banns), should be void when 
 entered into withovit the consent of the father if living, or, if 
 dead, of the guardians, or of the mother, or of the Court of 
 Chancery. Great mischiefs were found to grow out of the 
 absolute nullity thus created. For example, when a person 
 under age married by license, with the consent of the mother, 
 the father being absent and supposed to be dead, the marriage 
 was declared void for the want of the father's consent.* The 
 same rule was applied in other cases of the like nature ; and 
 neither length of cohabitation, nor lapse of time, nor consent 
 given subsequently by the parents, nor the birth of children, 
 
 diction," states the matter of the Fleet of St. Andrews, Holborn, the number 
 Prison marriages as follows : "Prior to of marriages solemnized in the same 
 the middle of the last century, there period was but fifty-three. These clan- 
 was in the Fleet Prison a colony of destine connections were also celebrated 
 degraded ecclesiastics, who derived at Mayfair, at Tyburn, and in other 
 their livelihood from celebrating clan- parts of London ; and, through the in- 
 destine marriages for fees smaller than strumentality of the hedge parsons, 
 those legally taken at the parish church, they were common all over the king- 
 Already incarcerated for debt or for dom, — in fact, greatly more so than 
 delinquencies, the reverend function- marriages in the face of the church." 
 aries were beyond the reach of episco- Macqueen Div. & Mat. Jurisd. 2. 
 pal correction. In some instances their i Horner v. Liddiard, 1 Hag. Con. 
 profits were very great. Thus we are 337, 348. 
 told, that, by one of them, six thousand * Jones v. Tevis, 4 Litt. 25. 
 couples were married in a single year; ^ 26 Geo. 2, c. 33, § 11. 
 whilst at the neighboring parish church * Hayes v. Watts, 2 PhiUim. 43. 
 VOL. I. 17 257 
 
§ 295 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III, 
 
 could cure the defect.^ This legal hardship the courts could 
 not mollify by construction. Yet they not only allowed the 
 consent to be inferred from slight circumstances ; but, in the 
 language of Lord Stowell, " to obviate the consequences which 
 must be most unfavorable to the issue of the marriage in case 
 of a sentence of nullity, the court has, in the construction of 
 the statute, lield (not without some controversies arising in 
 other quarters), that it is necessary to prove the negative of 
 consent in the strongest terms." ^ Later English legislation, 
 however, has so regulated this matter, that the want of the 
 consent of parents and guardians, though required by law, does 
 now in no case render the marriage void.^ If a statute requires 
 the parental consent, but does not expressly make the marriage 
 void celebrated without it,^ still, it will be good, though the 
 consent is not given.^ In a case, not of nullity of marriage, 
 but one involving tlie effect of a will, it was held, that, though 
 a parent could withdraw liis consent at any time before the 
 nuptials were celebrated, yet, if the parent died before such 
 celebration, the consent given in his lifetime was good.^ 
 
 § 295. Hovsr in our States — Effect of Marriage on Status of 
 Minority. — It is presumed tliat there are, in some of our States, 
 statutes maliing the marriage of minors wlio liave passed the 
 age of consent void, when the consent of parents to the mar- 
 riage is wanting.^ And in other States there are provisions of 
 
 1 Jones V. Robinson, 2 Phillim. 285 ; Dig. 229-231 ; Harrison v. Soutliamp- 
 
 Johnston v. Parker, 3 Phillim. 39 ; Eed- ton, 21 Eng. L. & Eq. 843. And for an 
 
 dall V. Leddiard, 3 Phillim. 356 ; Tur- illustration of the principle laid down 
 
 ner v. Pelton, 2 Phillim. 92 ; Days u. in the text, see Piers v. Piers, 2 H. L. 
 
 Jarvis, 2 Hag. Con. 172 ; Droney v. Cas. 331. See, however, Hex v. Butler, 
 
 Archer, 2 Phillim. 327; Pielder v. Russ. & Ry. 61. 
 
 Smith, 2 Hag. Con. 193; Clarke v. => Rex w. Birmingham, 8 B. & C. 29, 
 
 Hankin, 2 Phillim. 328, note ; Duins 2 M. & R. 230 ; Rogers Ec. Law, 2d ed. 
 
 V. Donovan, 3 Hag. Ec. 301 ; Rex v. 611. See Rex v. Waully, 1 Moody, 
 
 James, Russ. & Ry. 17 ; Sullivan ■/. 163, 1 Lewin, 23 ; Rex v. St. John Del- 
 
 Sulllvan, 2 Hag. Con. 238, 241. pike, 2 B. & Ad. 226. 
 
 ■'■ Days V. Jarvis, 1 Hag. Con. 172. 4 See ante, § 283, 285. 
 And see Hodgkinson ;;. Wilkie, 1 Hag, s Goodwin v. Thompson, 2 Greene, 
 
 Con. 262 ; Smith v. Huson, 1 Phillim. Iowa, 329 ; Parton v. Hervey, 1 Gray, 
 
 287; Cresswell 0. Cosins, 2 Phillim. 119. See, as to the construction of the 
 
 281; Sullivan v. Sullivan, supra; Bal- Arkansas statute, Smyth u. The State, 
 
 four V. Carpenter, 1 Phillim. 221 ; Doe 8 Eno-. 696. 
 
 V. Price, 1 Man. & R. 683; Cope v. 6 Younge v. Furse, 2 Jur. s. s. 864, 
 
 Burt, 1 Hag. Con. 434; 2" Burn Ec. 26 Law J. n. s. Chanc. 117. 
 Law, Phillim. ed. 437, 438; Rogers ' See cases cited to the last section ; 
 
 Ec. Law, 2d ed. 612, note a ; Wadd. also, Hiram v. Pierce, 45 Maine, 367 ; 
 258 
 
CHAP. XV.] PRIOR MARRIAGE UNDISSOLVED. § 296 
 
 law intended to operate as obstructions to such marriages. 
 We shall consider these, when, in another chapter, we come to 
 discuss the subject of offences connected with the unlawful 
 solemnization of marriage. In Maine, the court has held, that 
 the marriage of a minor, without the consent of his parents, 
 does not emancipate the minor, but that the father may main- 
 tain against a third person an action for services rendered to 
 the third person by such minor after the marriage. Tenney, J., 
 in delivering the opinion, referred to the general rule whereby 
 the earnings of infants belong to their father, and said, that 
 this case did not constitute an exception to the rule. But he 
 added : " When a contract between the parent and child exists, 
 that the latter shall enjoy the fruit of his labors, or when the 
 parent neglects to support him, the rule will not apply. If the 
 father, or person having the care and control of the minor, 
 should consent to his marriage, this may be another exception 
 to the principle, so far as his earnings are necessary for the 
 support of his wife- and children ; for the consent to the mar- 
 riage may imply a consent that he should, from his earnings, 
 have the means of discharging his new obligations." ^ 
 
 CHAPTER XV. 
 
 THE IMPEDIMENT OP A PRIOR MARRIAGE UNDISSOLVED. 
 
 § 296. General View — Polygamy — Bigamy. — The subject 
 of marriage celebrated while the party has a former husband 
 or wife living may be viewed in two aspects, — either as a 
 matter of criminal jurisprudence, or as one affecting the 
 validity of the marriage so celebrated. As a matter of criminal 
 jurisprudence, it does not come within the scope of the present 
 work, but it is discussed by the author in his book on the law 
 of " Statutory Crimes," under the title Polygamy.^ It may be 
 
 The Governor v. Rector, 10 Humph. i White v. Henry, 24 Maine, 531, 
 57 ; Ferrie v. The Public Administra- 532. 
 
 tor 4 Bradf. 28. ^ Bishop Stat. Crimes, § 577-613. 
 
 259 
 
§ 297 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 here observed, that the offence of having two husbands or 
 wives at the same time, the one de jure and tlie other de facto, 
 is more frequently termed bigamy ; though the broader term 
 polygamy seems to be equally applicable, and it has been con- 
 sidered to be, and certainly is, the more appropriate.^ Accord- 
 ing to the canonists, a bigamist was one who married a second 
 time, whether the former consort were living or not, or mar- 
 ried a widow ; and there were seven distinct connections by 
 which the offence might be committed, so as to create an inca- 
 pacity for orders.^ But polygamy, as understood in our crim- 
 inal law, is a different thing ; it is the act of formally entering 
 into the marriage relation with a third person, by one sustain- 
 ing at the same time the relation with a second person.^ 
 
 §297. History of Statutory Polygamy. — In England, as 
 observed elsewhere,* polygamy was always punishable canon- 
 ically, while it seems not to have been a civil offence until the 
 reign of James I.^ In the first year of his reign, Stat. 1 Jac. 
 1, c. 11 (a. d. 1604) made it felony when committed " within 
 his majesty's dominions of England and Wales ; " but an 
 exceptive clause of the statute .exempted from its operation 
 persons whose husband or wife should have remained seven 
 years beyond sea, or the same period within his majesty's 
 dominions not known by the other to be living, persons 
 divorced,^ persons whose marriages had been or should there- 
 after be judicially declared void, and persons married within 
 the age of consent. This statute has been the model for all 
 subsequent criminal legislation upon the subject, both English 
 and American. In England, later legislation has corrected 
 some of its defects ; particularly is a mere divorce from bed 
 and board no longer a protection against the penal conse- 
 quences of a second marriage, while a seven years' residence 
 beyond sea is no protection where the absent party is known to 
 the other to be living.'^ In most, perhaps all, of the United 
 
 1 Shelford Mar. & Div. 224 ; 1 East says, that until this time it was left of 
 P. C. 464 ; 20 Howell St. Tr. 358, note. " doubtful temporal cognizance ; " but 
 
 2 Poynter Mar. & Div. 142 ; 4 Bl. so early as Stat. 4 Edw. 1, c. 5, de bi- 
 Com. 163, note. gamis, it was treated as a capital offence, 
 
 3 See Bishop Stat. Crimes, § 577 et and ousted of clergy by that statute, 
 seg. 1 East P. C. 464. 
 
 * Bishop Stat. Crimes, § 579. 6 Rex v. LolJey, Russ. & Ry. 237. 
 
 6 Poynter Mar. & Div. 144. East ' Shelford Mar. & Diy. 226 ; Rogers 
 260 
 
CHAP. XV.] PRIOR MARRIAGE UNDISSOLVED. § 299 
 
 States, there are statutes, varying more or less from each other 
 and from the English statutes, but substantially in accordance 
 with the present amended English enactments. 
 
 § 298. How the statutes construed. — In the author's work on 
 the law of Statutory Crimes, he has explained the principles on 
 which these statutes against polygamy are to be construed. It 
 is not best to repeat here what is there said ; but simply to 
 observe, that, connected with this topic, there are some partic- 
 ular questions on which the courts have sometimes erred, and 
 which demand the careful consideration of the practitioners, 
 and of the tribunals before whom the questions shall come 
 hereafter. 
 
 § 299. Effect of the Exceptions on the Marriage — Second Mar- 
 riage while First subsists. — These statutes against polygamy 
 contain various exceptions, chiefly intended to protect from 
 their penalties persons who unwittingly violate them. We 
 should understand, that, if a first marriage subsists undis- 
 solved by divorce, the second marriage is void, even though, 
 by reason of some exception in the statute against polygamy, 
 or by force of some principle of the common law of crimes, 
 the plerson entering into the marriage should be exempt from the ' 
 statutory penalty.^ But to render a second marriage void, 
 
 Ec. Law, 2d ed. 634. Stat. 9 Geo. 4, seded by the later one of 24 & 25 Vict, 
 
 c. 31, repealing the former act, contains c. 100, § 57 ; which, however, does not 
 
 the following exceptions : " Provided differ from it in any essential particu- 
 
 always, that nothing herein contained lar. 
 
 shall extend to any second marriage ' Kenley v. Kenley, 2 Yeates, 207 ; 
 
 contracted out of England by any Poynter Mar. & Div. 146 ; Williamson 
 
 other than a subject of his majesty ; or v. Parisien, 1 Johns. Ch. 389 ; Eenton 
 
 to any person marrying a second time, v. Eeed, 4 Johns. 52 ; Miles v. Chilton, 
 
 whose husband or wife shall have been 1 Robertson, 684 ; Rogers Ec. Law, 
 
 absent from such person for the space 2d ed. 634 ; Bird v. Bird, 1 Lee, 621 ; 
 
 of seven years then last past, and shall Searle v. Price, 2 Hag. Con. 187, 4 
 
 not have been known to such person Eng. Ec. 524; Bayard v. Morphew, 
 
 to have been living within that time ; 2 Phillim. 321 ; Duins v. Donovan, 3 
 
 or shall extend to any person who, at Hag. Ec. 301, 309 ; Sellars u. Davis, 
 
 the time of such second marriage, shall 4 Yerg. 503 ; Jones v. The State, 5 
 
 have been divorced from the bond of Blackf. 141 ; Young v. Naylor, 1 HiU, 
 
 his first marriage ; or to any person Eq. 383 ; Smith v. Smith, 1 Texas, 621 ; 
 
 whose former marriage shall have been Zule v. Zule, Saxton, 96 ; Ganer v. 
 
 declared void by a court of competent Lanesborough, Peake, 17 ; The State 
 
 jurisdiction." As to what kind of mar- v. Moore, 3 West. Law, Jour. 134 ; 
 
 riage the second must be, see Kex a. Martin v. Martin, 22 Ala. 86; Hfeffner 
 
 Penson, 5 Car. & P. 4J2. This statute v. Heffner, 11 Harris, Pa. 104. In a 
 
 of George is now, in England, super- Maine case, the judges seemed to be of 
 
 261 
 
§ 300 
 
 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 the first must be valid ; ^ and, where the first is null, — not 
 merely voidable, — a judicial sentence of nullity is not neces- 
 sary to authorize the party capable of marrying to enter into 
 a second valid marriage.^ " A void marriage," remarks 
 Wayne, J.,^ " imposes no legal restraint upon the party imposed 
 upon* from contracting another; though prudence -and deli- 
 cacy do, until the fact is so generally known as not to be a 
 matter of doubt, or until it has been impeached in a judicial' 
 proceeding, whenever that may be done." To enable the 
 innocent party, in a polygamous marriage, to contract a second 
 marriage, the guilty party need not be convicted of polygamy. 
 And the burden of proving the first marriage, where the second 
 is attempted to be impeached on the ground of the first, lies on 
 the impeaching party .^ 
 
 § 300. Void or Voidable — Distinguished from Fraud — Who 
 apply for Dissolution. — The reader perceives, that the ^impedi- 
 ment now under consideration renders the marriage void, in 
 distinction from voidable.^ There are, in the law, many cir- 
 
 the opinion, that, under the Massachu- 
 setts statute, if a woman whose husband 
 has absented himself seven years, and 
 is believed by her to be dead, marries 
 again while in fact he is living, the 
 second marriage will be merely void- 
 able, and good until avoided. But this 
 was not the point adjudged. "It is 
 argued," said the learned judge, "that, 
 though the statute [of Massachusetts] 
 purges the felony in all cases within the 
 exception, it does not make such mar- 
 riages valid. So it has been held under 
 a statute somewhat similar. Fenton 
 o. Eeed, 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 ; Commonwealth v. Mash, 
 7 Met. 472." Hiram v. Pierce, 45 
 Maine, 367, 372. "We have already seen, 
 (ante, § 114), that, in New York, there 
 is a statute of a different sort which 
 would make a marriage under the cir- 
 cumstances here pointed out voidable. 
 But there is neither judicial authority 
 nor juridical reason for holding the 
 marriage voidable, in distinction from 
 
 262 
 
 void, under a statute, like the Massa- 
 chusetts one, which merely exempts 
 from punishment one who has com- 
 mitted what otherwise would be the 
 crime of polygamy. A second mar- 
 riage contracted while the first subsists, 
 is void by the common law; yet, by 
 the common law, polygamy as a crime 
 is not known. 
 
 1 Bruce v. Burke, 2 Add. Ec. 471, 
 2 Bug. Ec. 381 ; Reg. v. Chadwick, 12 
 Jur. 174, 11 Q. B. 173; Appleton v. 
 Warner, 51 Barb. 270; Reeves v. 
 Reeves, 54 111. 332; Poynter Mar. & 
 Div. 141 ; Bowyer Com. 45. 
 
 2 Patterson v. Gaines, 6 How. TJ. S. 
 550 ; Gaines v. Eelf, 12 How. TJ. S. 472. 
 
 3 Patterson <-. Gaines, 6 How. U. S. 
 550, 592. 
 
 ^ If the party is not deceived, the 
 result is the same. Martin v. Martin, 
 22 Ala. 86. 
 
 ° Patterson y. Gaines, supra. 
 
 <" Heffner v. Heffner, 11 Harris, Pa. 
 104 ; and cases cited to th« last section ; 
 ante, § 94-96, 105 et seq., 136-142, 153, 
 215, 267, 
 
CHAP. XV.j PRIOR MARRIAGE UNDISSOLVED. § 301 
 
 cumstances in which a party to a wrong is estopped to allege 
 the wrong in a court of justice. And on this ground, no man 
 can come as plaintiif into a court, asking to have his marriage 
 set aside because contracted through his own fraud ; even 
 though the marriage is really void in law, to all intents and 
 purposes.! But if one, knowing himself to be incapable of 
 contracting matrimony on account of having already entered 
 into a marriage which is undissolved, entraps into a marriage 
 with him another, ignorant of the impediment, he, as well 
 as this other, may proceed as plaintiff to have this marriage 
 declared void because of the impediment.^ Various legal 
 reasons may be stated for this proposition ; but the more satis- 
 factory one is, that the impediment was a thing entirely dis- 
 tinct from the fraud, not depending in any measure upon it.^ 
 
 § 301. Collateral Consequences. — The collateral consequences, 
 to third persons, and to the parties themselves, of holding a 
 marriage to be void, have already been mentioned ; and they 
 will be further considered in our second volume : * as, for 
 instance, on the death of the man the woman can have no 
 dower in his estate ; ^ and so of all the other rights which 
 depend upon marriage. The common law allows no mitigation 
 of these disastrous consequences, in favor of persons however 
 innocently contracting a second marriage during the continu- 
 ance of the first, or in favor of a party deceived by the artifice 
 of the other into the marriage, or in favor of their innocent 
 children. But there is a tendency, in the legislation of this 
 country, toward the adoption of the more merciful rules of the 
 modern civil law, as it has been in some countries modified by 
 the canon law. Thus in Missouri, though a marriage in the 
 lifetime of a former husband or wife is void, still a statute 
 makes the children legitimate ; providing, that the issue of all 
 marriages deemed null in law, or dissolved by divorce, shall 
 nevertheless be legitimate.** And there is at present a like 
 
 1 Ante, § 149, 214. Y. 514 ; Bobbins v. Potter, 98 Mass. 
 
 2 Miles V. Chilton, 1 Robertson, 684 ; 532 ; Johnson v. Jolinson, 1 Cold. 626. 
 Norton v. Seton, 3 Phillim. 147, 1 Eng. ^ Vol. II. § 688 et sec[. 
 
 Ec. 384. And see Ponder v. Graham, 5 Smart v. "Whaley, 6 Sm. & M. 308 ; 
 4 Ela. 23 ; Martin v. Martin, 22 Ala. Higgins v. Breen, 9 Misso. 493. 
 
 86. 
 
 ' On the subject of this section, con- 441 
 suit also Amory v. Amory, 6 Kob. N. 
 
 *■ Lincecum t;. Lincecum, 3 Misso. 
 
 268 
 
§ 302 MAKRIAGB IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 statute, in Texas ; ^ also in California.^ Statutes of this gen- 
 eral sort exist likewise in Maine,^ in Maryland,'* and in various 
 other of our States. 
 
 § 302. Continued — Civil Law- Rule — Louisiana — Mexico — 
 Texas — Spain, &c. — In Louisiana, the jurisprudence of 'which 
 State rests in some degree on the civil law of Spain,^ the 
 courts hold, that, where a woman is married to a man having 
 a former wife, with whom his marriage is still subsisting, if 
 she were deceived by him into this marriage, being ignorant 
 of any impediment, she is entitled, while the deception lasts, 
 to all the rights of a wife ; and the children, born during this 
 period, are legitimate.^ So, in Texas, before the introduction 
 of the common law into the State, it being subject to the law 
 of Mexico, if a woman married a man having a wife already, 
 she being ignorant of the impediment, the law cast on her all 
 the obligations, and invested her with all the rights, of a lawful 
 wife, while this ignorance of the impediment lasted. The law 
 of Spain was the same. The matter was much discussed in a 
 Texas case ; and the court further held, tiiat, by the Spanish 
 law, formerly existing in Texas, if there was an impediment, 
 like a prior marriage, and the second marriage was entered 
 into in ignorance of the impediment ; still, it might indeed be 
 dissolved for the cause of the impediment, but, even aft6r such 
 dissolution, it, as to whatever had gone before, " produces," in 
 the language of the court, " the civil effect of true matrimony, 
 as well with respect to the spouses, as with respect to the off- 
 spring. The interests of the consorts at separation will be reg- 
 ulated according to the disposition which would liave been 
 made of them in case of dissolution by death or divorce. Tliis 
 good faith produces its results as long as it continues ; and, 
 when it ceases, its effects also cease." So likewise, by the 
 same system of jurisprudence, contrary, perhaps,"^ to the rule of 
 the common law, a putative marriage is converted into a real 
 marriage by the removal of the disability ; as, if there be a for- 
 
 1 Hatwell V. Jackson, 7 Texas, 676. 6 Clendenning v. Clendenning, 15 
 
 2 Graham v. Bennet, 2 Cal. 503. Mart. La. 438 ; Gaines v. New Orleans, 
 
 3 Hiram v. Pierce, 45 Maine, 367. 6 Wal. 642. And see Hubbell v. Ink- 
 1 Earle v. Dawes, 3 Md. Ch. 230. stein, 7 La. An. 252 ; Summerlin v. 
 5 Bishop Pirst Book, § 57, 58, and Livingston, 15 La. An. 519. 
 
 note. 7 See ante, § 139-141. 
 
 264 
 
CHAP. XVI.] IMPEDIMENTS FOLLOWING DIVORCE. §304 
 
 mer husband or wife of one of the parties living, the marriage 
 becomes good on the death of such person. ^ 
 
 § 303. Continued. — Mr. Burge, in language somewhat less 
 precise, states the rule under consideration thus : that such a 
 marriage, " although null and void, will have the effect of 
 entitUng the wife, if she be in good faitli, to enforce the rights 
 of property which would have been competent to her if the 
 marriage had been valid, and of rendering the children legiti- 
 mate." He informs us that this species of marriage was not 
 recognized by the civil law, having sprung from the canon ; 
 was unknown in the laws of England, Ireland, and Holland, 
 yet was admitted into Prance, Spain, and Germany ; and was 
 adopted by the code civil. It has struggled for a doubtful 
 existence in Scotland.^ 
 
 CHAPTER XVI. 
 
 IMPEDIMENTS- FOLLOWING DIVORCE. 
 
 § 304. Divorce permits Remarriage — Restraining Clause in 
 Statute. — The operation of a decree of divorce from the bond 
 of matrimony, when unencumbered by any statutory limita- 
 tions or restrictions, is to free the parties respectively from all 
 the obligations which the dissolved marriage imposed ; and to 
 leave them, consequently, at liberty to contract other mar- 
 riages, the same as though the first had never subsisted. In 
 the language of a learned judge : " With the dissolution, the 
 obligations arising from the marriage are completely dis- 
 charged, and the parties stand in the same position as though 
 such marriage had never been contracted." ^ But in some of 
 our States and in some countries, the law puts restrictions 
 and prohibitions, more or less broad, on one or both of the 
 parties to the divorce. Thus, the Kentucky statute provides, 
 that the decree of divorce shall not " authorize the injured 
 
 1 Smith V. Smith, 1 Texas, 621 ; 2 l Burge Col. & For. Laws, 152. 
 Lee V. Smith, 18 Texas, 141. See also 3 Field, C. J., in Barber v. Barber, 
 Patton V. Philadelphia, 1 La. An. 98. 16 Cal. 378. 
 
 265 
 
§ 305 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 party again to contract matrimony within two years from 
 the time of pronouncing such final decree." And the 
 courts hold, that, if the injured party contracts a second 
 marriage within the two years, it is a nullity, void for every 
 purpose.^ 
 
 § 305. Restraining Clause in Statute, continued — Reason for 
 the Provision. — And in many of the States of this country, 
 the guilty party after a divorce is excluded by statute from 
 entering into a second marriage, during the lifetime of the 
 innocent party. This is a peculiarity of the American law, 
 and it is known in only a part of tlie States. Whether the 
 provision is a wise one is a question on which opinions are 
 divided. Plainly, a person who has conducted badly in one 
 mati'imonial alliance cannot himself present a claim to be pro*- 
 tected in another ; but, in divorce law, we are to consider 
 more the interests of the public at large than of particular 
 individuals. And if a punishment is to be imposed for any 
 crime,^ especially therefore for a matrimonial one, it should be 
 of a nature calculated to benefit,, not to prejudice the public. 
 Consequently, when a man is shown to have been unfaithful to 
 the obligations of a particular marriage, if he is to be punished 
 for the unfaithfulness beyond having his connection with the 
 woman thereby wronged dissolved, reason would seem to 
 demand that he be shut up, — not left at large under disabili- 
 ties constantly goading his evil nature to wrong as many more 
 women as he can seduce by arts and blandishments. If mar- 
 riage is in any instance a protector of the public virtue, it must 
 be particularly so 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 party, after a divorce, will induce per- 
 sons weary of their matrimonial connections to commit offences 
 for the sake of being divorced. But experience shows, that 
 such is not often done ; and surely if an innocent individual 
 is bound by the form of marriage to one who would do this, 
 mercy to such innocent person demands that the bond be 
 unloosed. 
 
 1 Cox V. Combs, 8 B. Monr. 231. 2 1 Bishop Crim. Law, 5th ed. § 209- 
 See post, § 306. 211. 
 
 266 
 
CHAP. XVI.] IMPEDIMENTS FOLLOWING DIVORCE. § 306 a 
 
 § 306. Order of the Discussion — General Doctrine — Clause 
 of Nullity. — We shall discuss this prohibition more at large 
 when we come, in the second volume,^ to consider the effects of 
 divorce. We shall there see, that, being of a penal nature, it 
 does not, on the one hand, take away the right of the party to 
 marry out of the jurisdiction which imposes it ; neither, on 
 the other hand, does it apply to foreign divorces. Whether 
 the mere prohibition, without words of nullity,^ should be 
 construed to malie the marriage entered into contrary to the 
 prohibition void, is perhaps a question of doubt. Usually the 
 courts appear to have regarded it as having this effect ; '^ but, 
 in a late Georgia case, the court intimate pretty distinctly that 
 the marriage is' only voidable at the most, perhaps perfectly 
 good.* And this intimation is surely worthy to be seriously 
 considered in cases hereafter to arise. 
 
 § 306 a. Clause of Nullity, continued. — If we are to look at 
 this question as one of principle, we must doubtless be gov- 
 erned in some measure by the particular language of the statute. 
 We have already seen,^ that where, in England, the divorce 
 act forbade a remarriage until the period for appeal had elapsed, 
 a marriage after sentence pronounced and before the ex- 
 piration of this time was held — and it is believed by the 
 author properly so — to be void. In the principal case in 
 which this was so adjudged,^ a doubt was expressed whether, 
 in the absence of any statutory provision on the point, a divorce 
 dissolving a valid marriage operates in law to authorize the 
 divorced parties to remarry. Whatever foundation, or whether 
 any, there may be for such a doubt in England, there is none 
 in this country ; ^ for with us it was never questioned, that, in 
 the absence of all provision on the point, a divorced person, 
 whether plaintiff or defendant in the divorce suit, is entitled 
 to remarry the same as though the first marriage had never 
 existed.^ Now, if, after a system of divorce laws has been 
 established, and parties have sought and obtained divorces, a 
 
 1 Vol. n. § 698-704. ■• Parke v. Barron, 20 Ga. 702. 
 
 "- Ante, § 283 et seq. ' Ante, § 287 a. 
 
 3 Ante, § 304 ; Ponsford v. Johnson, « Chichester v. Mure, 3 Swab. & T. 
 
 2 Blatch. 51 ; Haviland v. Halstead, 223. 
 
 34 N. Y. 643 ; Smith v. Woodworth, 44 ' Ante, § 304. 
 
 Barb. 198. 8 Vol. II. § 698-704. 
 
 267 
 
§ 307 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 statute should be passed forbidding any divorced person to 
 contract a new marriage, this statiite would subject the person 
 violating it to indictment, even though it was silent as to the 
 penalty.! Then, after the statute had thus expended itself, 
 it could not on principle be carried further, and render the 
 marriage null, unless it also contained an express clause of 
 nullity.^ There could be no doubt about this proposition as 
 applied to divorces which had already occurred, and one can- 
 not see why it should not apply equally to future divorces. 
 On the other hand, if the same statute whicli authorized the 
 divorce expressly provided that it should not operate to author- 
 ize the divorced party to remarry, the case would seem , pretty 
 plainly to fall within a principle already considered,^ and a 
 new marriage contracted in the same State would be void ; 
 though it would be good if contracted in another State or 
 country.* It cannot be doubted that these two points, standing 
 at the extremes, are correct as tlius stated ; but, between these 
 points, there are various shades and kinds of statutory pro- 
 vision, the effect of which may be more or less open to ques- 
 tion. 
 
 § 307. Marriage with Partner in Adultery. — In Scotland, they 
 have a form of this prohibition not known in the United States. 
 It is, that the guilty party, after a divorce for adultery, shall 
 not marry the particeps criminis. This impediment is said to 
 have had an early existence ' in the canon law, into which it 
 was introduced from tlie Roman, though the canon law 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 the standing order," observes 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, 
 
 1 Bishop Stat. Crimes, § 138 ; 1 * Vol. II. § 701 ; Ponsford v. John- 
 Bishop Grim. Law, 5th ed. § 237, 238. son, 2 Blatch. 51 ; Webb's Estate, 1 
 
 2 Ante, § 283-287 a. ' Tucker, 372. 
 
 3 Ante, § 287 a. 5 i Pras. Dora. Rel. 82. 
 
 268 
 
CHAP. XVI.] IMPEDIMENTS FOLLOWING DIVORCE. § 307 a 
 
 that some noble lord in committee moves to have it struck out, 
 a motion which passes without resistance ; or, should resist- 
 ance 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 ad-ul- 
 tery ; and to inflict bastardy on the innocent and helpless 
 offspring." ^ 
 
 § 307 a. Remarriage by Permission of Court. — In one or 
 more of our States, in which, according to the general terms 
 of the statutes, the guilty party is not permitted to marry after 
 the divorce, there is a special provision authorizing the court 
 to grant leave to remarry, on application made for the special 
 purpose. It it so, of late years, in Massachusetts. The 
 application is addressed to the discretion of the judge ; and it 
 is a familiar principle of the law that a discretion, committed 
 to a court of justice, is a judicial discretion, to be exercised 
 according to rule, and not according to the personal views of 
 the particular individual who happens to be presiding in the 
 court.^ Concerning the discretion to grant leave to remarry, 
 we are lacking in decisions sufficient to enable the author to 
 lay down rules. In a Massachusetts case, where, more than 
 three years after a divorce was pronounced against a woman for 
 her adultery, she petitioned the court for leave to marry again, 
 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 learned judge who heard the evidence held, that, admitting 
 it to be true, " it did not establish a case to which the pro- 
 visions of the statute ouglit to be applied, but that still further 
 facts should be proved to entitle the petitioner to tlie decree 
 prayed for ; 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 
 
 1 Macqueen Pari. Praot. 509. men, § 676 ; Morgan v. Morgan, Law 
 
 2 Post, § 830; 1 Bishop Mar. "Wo- Kep. 1 P. & M. 644. 
 
 269 
 
§ 308 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 a great many exceptional cases, to which the statute may be 
 TisefuUy applied ; for example, a party who has been absent 
 from the State for a few montlis may, on his return, find a 
 decree of divorce against him, upon notice published in a news- 
 paper whicli 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 repent- 
 ance, 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 instru- 
 mentality 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 interested to 
 oppose them, or inform the court of the whole truth of the 
 case. The judge, therefore, ordered the petition to ybe dis- 
 missed, and decided that the petitioner had no right of excep- 
 tion." The full cdurt, however, reversed this decision, 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 estab- 
 lish a case to which the provisions of Stat. 1864, c. 216, ought 
 to be applied. This abstract proposition, we think, was not 
 correct. Such evidence certainly was not conclusive, and a 
 broad field fo.r discretion is open to the presiding judge upon 
 all the surrounding circumstances and facts bearing 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 sufiScient to authorize the 
 granting of the petition, and it would be competent for the 
 court to grant it." ^ 
 
 1 Cochrane, Petitioner, 10 Allen, 276. 
 
 270 
 
CHAP. XVII.] RACE AND CIVIL CONDITION. § 308 a 
 
 CHAPTER XVII. 
 
 IMPEDIMENTS OP RACE AND OP CIVIL CONDITION. 
 
 §308. 'Whites and Blacks — "Negro" — "Mulatto," &c. — 
 There are, iu several of our States, statutes to prevent inter- 
 marriages between persons of the negro, the Indian, and tlie 
 white races. Such a statute existed in Massachusetts until 
 1843, when it was repealed. ^ These statutes are not, in gen- 
 eral, difficult to be interpreted ; but questions have sometimes 
 arisen respecting the meaning of such words as " negro," 
 " mulatto," " person of color," " white person," and the like, 
 where there is in the individual a blending of blood. Thus, in 
 a Maine case, it was observed by Shepley, C. J. : " There is a 
 difference of opinion respecting the proportion of African blood 
 which will prevent a person possessing it from being regarded 
 as white. Some courts appear to have held, that a person 
 should be so regarded 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." ^ 
 Upon the interpretation of such words as these the author 
 shed what light he conveniently could, in his work on " Stat- 
 utory Crimes." ^ It may be here added, that the North Caro- 
 lina statute, which prohibits marriage between white persons 
 and " persons of color," includes in the latter class all who 
 are descended from negro ancestors to the fourth generation 
 inclusive, though one ancestor of each generation may have 
 been a white person.* 
 
 § 308 a. Emancipation. — The new state of things wliich 
 has been brought about by emancipation in our late slave- 
 
 1 See Medway v. Natick, 7 Mass. 88; 2 Bailey v. Mske, 34 Maine, 77. 
 
 Medway „. Needham, 16 Mass. 157 ; ' Bishop Stat. Crimes, § 274. 
 
 The State v. Hooper, 5 Ire. 201 ; The * The State v. Walters, 3 Ire. 455. 
 
 State V. Brady, 9 Humph. 74 ; Bailey And see The State v. Melton, Buslee, 
 
 V. riske, 34 Maine, 77 ; The State v. 49. 
 ore, 1 Ire. 378. 
 
 271 
 
§ 310 MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK III. 
 
 holding States has not generally wrought any change in these 
 statutory provisions. Thus, in North Carolina they are held 
 to be still in force.^ And in Georgia it is held, that the pro- 
 vision of the Revised Code prohibiting the intermarriage of 
 whites and blacks is not inconsistent witli the constitution of 
 1868, by wliich, therefore, it is not repealed. The article 
 providing that " the social status of the citizen shall never 
 be the subject of legislation," not only restrains the legislature 
 from enacting new laws on the subject, but also from abrogat- 
 ing the former ones.^ 
 
 § 308 b. Clause of Nullity. — It will be seen, on consulting 
 the cases cited to the foregoing sections, that the statutes on 
 this subject generally contain an express clause of nullity, 
 making the marriage celebrated contrary to their prohibitions 
 "void." Therefore such marriages are held to be, of course, 
 mere nullities ; no suit is necessary to set them aside, either 
 party is at liberty to contract a real marriage, and none of the 
 legal consequences of marriage follow from them.^ If a stat- 
 ute should be found which merely inflicts a penalty for enter- 
 ing into such a marriage, or merely prohibits the marriage 
 without an express penalty, but containing no clause of nullity, 
 then plainly, on principle, though the question seems never to 
 have passed into express adjudication, the marriage would be 
 good.* 
 
 § 809. Free Negroes and Slaves. — In former times, there 
 were statutes against free negroes intermarrying with slaves, 
 without the consent of the masters of the slaves.^ Such mar- 
 riages would, of course, if there were no statute, be void on 
 principles we have already considered ; ^ for the incapacity of 
 the enslaved party to marry would constitute just as effectual 
 an impediment as if the incapacity attached to both parties. 
 But the object of these statutes was to inflict a punishment on 
 offenders. 
 
 § 310. Constitutioaal Incapacity to contract. — In Indiana, the 
 constitution of the State declared, that all contracts made with 
 
 1 The State v. Hairston, 63 N. C. ^ Successionof Minvielle, 15La. An. 
 
 451 ; The State v. Bernhardt, 63 N. C. 342 ; ante, § 105. 
 547. * Ante, § 283-287 a, 306 a. 
 
 ^ Scott V. The State, 39 Ga. 321. ^ xhe State v. Roland, 6 Ire. 241. 
 
 272 
 
 6 Ante, § 156 et seq. 
 
CHAP. XVIII.] CONSANGUINITY AND AFFINITY. § 313 
 
 negroes coming into the State after its adoption should be void ; 
 and this provision was held, by the court, to render void a 
 marriage celebrated between a free negro man and a free negro 
 woman, the latter of whom had come into the State since the 
 adoption of the constitution.^ 
 
 § 311. other Impediments of like Sort. — Says Mr. Burge : 
 " There were certain impediments to marriage peculiar to the 
 civil law, which are not adopted in the codes of other countries. 
 These were impediments 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 ofSce in a 
 province, and the members of his family, were not permitted 
 to intermarry with a person domiciled in his province, unless 
 they had been betrothed to each other before he had accepted 
 the office. Notwithstanding these prohibitions, the subsequent 
 voluntary cohabitation of the parties, after the relation which 
 caused the prohibition had ceased, rendered the marriage valid 
 ab initio." ^ 
 
 CHAPTER XVIII. 
 
 CONSANGUINITY AND AFFINITY. 
 
 § 312. Consanguinity and Affinity distinguished. — The two 
 impediments of consanguinity and affinity are usually treated 
 of as one ; because, in England, little or no distinction is made 
 between them. Yet iu their essence they differ as widely as 
 right and wrong do in other cases. The impediment of con- 
 sanguinity exists in the law of nature, and it is recognized 
 everywhere. The impediment of affinity is one of mere civil 
 institution ; and in some countries it is not known, or is but 
 slightly known. It has no foundation in nature. 
 
 § 313. Consanguinity, continued — "Why an Impediment — 
 Affinity. — Marriages between persons closely allied in blood 
 
 1 Barkahire v. The State, 7 Ind. 389. 2 1 Burge Col. & For. Laws, 138. 
 VOL. I. 18 273 
 
§ 314 MAEEIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 are apt to produce an offspring feeble in body, and tending to 
 insanity in mind. They are everywhere prohibited ; but the 
 more common reason assigned for the prohibition is, that the 
 toleration of them would impair the quiet and concord of 
 families, jeopardize female chastity, and hinder the formation 
 of favorable alliances. And while this reason appears utterly 
 insufficient of itself, it shows how, in the world's history, the 
 promptings of the nature of man frequently carry him in 
 the right direction, where his mere intellect fails to discern the 
 path. Yet even here he is liable to err ; as, in the present 
 instance, the blending of bad reason with a correct instinct has, 
 in the English law, led to the establishment of the impediment 
 of affinity, much to the detriment of good morals. 
 
 § 314. Mules to determine what Marriages are forbidden hy 
 our Unwritten Law : — 
 
 Stat. Hen. 8 — How before. — We have already seen, that, 
 previous to Stat. 32 Hen. 8, c. 38, which is a part of the 
 common law of this country, the impediments of consanguinity 
 and affinity were so extended by the church as to become bur- 
 densome ; and tliat this statute, enacted for the correction of 
 the evil, forbade the ecclesiastical courts to draw into question 
 marriages " without the Levitical degrees," not prohibited by 
 " God's law."" ^ In the construction of this statute, the follow- 
 ing points have been established : — 
 
 AfBnity same as Consanguinity. — First. That affinity is an 
 impediment to the same extent as consanguinity. Thus, in the 
 case of Butler v. G-astrill, the judge said : " It was necessary, 
 in order to perfect the union of marriage, tliat the husband 
 should take the wife's relations, in the same degree, to be the 
 same as his own, without distinction, and vice versd; for, if 
 they are to be the same person, as was intended by the law of 
 God, they can have no difference in relations, and by conse- 
 quence the prohibition touching affinity must be carried as far 
 as the prohibition touching consanguinity ; for what was found 
 convenient to extinguish jealousies amongst near relations, and 
 to govern families and educate children amongst people of the 
 same consanguinity, would likewise have the same operation 
 
 1 Ante, § 107, 108, 120, note. 
 
 274 
 
CHAP. XVIII.J CONSANGUINITY AND AFFINITY. 
 
 §314 
 
 amongst those of the same afBuity.^ And when we consider 
 who are prohibited to marry by the Levitical law, we must not 
 only consider the mere words of the law itself, but what, by a 
 just and fair interpretation, may be adduced from it." ^ In the 
 application of this rule, let us observe, the kindred of the hus- 
 band are not in affinity to the kindred of the wife;^ as, for 
 example, the husband's brother may marry the wife's sister;* 
 father and son iqay marry mother and daughter ;6 and a man 
 may marry the widow of his former wife's brother.^ In causes 
 other than matrimonial it is held, that relationship by affinity 
 ceases on the dissolution by death or otherwise of the marriage 
 which created it,'^ except as to the children of tlie marriage;^ 
 and, if the same rational view had been carried by the courts 
 of England into the construction of this statute, less occasion 
 would there have been to deprecate the result.^ 
 
 ' This absurd reasoning is the foun- 
 dation whereon, at the present day, 
 rests, in England, the doctrine which 
 prevents a man from marrying the sis- 
 ter of his deceased wife. We shall see, 
 further on in tliis section, that, in mat- 
 ters not matrimonial, the relationship 
 by aflBnity is held by the courts to 
 cease with the dissolution which death 
 brings to the marriage ; and so the 
 rule ought to be in cases matrimonial. 
 If, when a man's wife dies, she is still 
 his wife, then, of course, her sister is 
 still his sister. But, on this reasoning, 
 since he has already one wife, though 
 indeed she is not dwelling in flesh and 
 blood, he should be precluded from 
 taking any other, not merely precluded 
 from taking this wife's sister. If, on 
 the other hand, the wife is, after her 
 death, no more his wife, then is her 
 sister no more his sister. And though 
 men who have no other idea of religion 
 than to regard it as a bundle of forms 
 may not see how the termination of 
 the relationship by the death of the 
 wife is of any consequence in the case, 
 yet those who discern diflferently will 
 discover nothing unseemly in practi- 
 cally acting upon a fact which every- 
 body knows to exist. 
 
 2 Butler V. Gastrin, Gilb. Ch. 156, 
 158. 
 
 ' See, on this point. Paddock u. 
 WeUs, 2 Barb. Ch. 331. Kelly v. Neely, 
 7 Eng. 657, proceeded on a contrary 
 doctrine. 
 
 4 Shelford Mar. & Div. 174; Wood's 
 Civil Law, 119 ; Poynter Mar. & Div. 
 117. 
 
 5 Oxenham v. Gayre, Bacon Ab. 
 tit. Mar. & Div. (a.) 
 
 6 Taylor Civil Law, 339. 
 
 7 Blodget V. Brinsmaid, 9 Vt. 27 ; 
 The State v. Shaw, 8 Ire. 532 ; Moses 
 i-. The State, 11 Humph. 232 ; Morgan 
 V. The State, 11 Ala. 289; Goodall v. 
 Thurman, 1 Head, 209 ; 1 Bishop Crim. 
 Proced. 2d ed. § 901. 
 
 8 Paddock v. Wells, 2 Barb. Ch. 331. 
 See Ex parte Hunt, 5 Cow. 284. 
 
 s How far an American court would 
 follow the English rule of construction 
 of a statute worded like the English, I 
 cannot exactly say. In one case the 
 Virginia tribunal followed the English 
 rule. Commonwealth v. Perryman, 2 
 Leigh, 717. Post, § 319, note. But in 
 a Vermont case, Collamer, J. observed : 
 " The relationship by consanguinity is, 
 in its nature, incapable of dissolution ; 
 but the relationship by aflBnity ceases 
 with the dissolution of the marriage 
 which produced it. Therefoi-e, though 
 a man is, by affinity, brother to his 
 wife's sister, yet, upon the death of 
 
 275 
 
§ 317 MARRUGB IMPERFJBCTLT CONSTITUTED. [BOOK III. 
 
 § 315. Illegitimate Children. — Secondly. In respect to tlie 
 impediments of consanguinity and affinity, illegitimate children 
 are considered the same as legitimate; " for tiie disqualifications 
 of bastardy are of civil institution only, and do not intrinsically 
 weaken the natural ties of kindred." i 
 
 § 316. "What Relationships prohibited. — Thirdly. The Statute 
 is construed to prohibit marriages in the entire ascending and 
 descending line; also marriages between collaterals as far as, 
 and including, the third degree of the civil reckoning. In this 
 mode of computing the degrees, we go from the prcepositus up 
 to the common stock, thence down, counting one for each step.^ 
 Therefore under this statute it is incestuous for a man to marry 
 his deceased wife's sister,** or for a woman to marry her de- 
 ceased 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 marriages all 
 being within the second or third degree, either of consanguinity 
 or affinity. But for a man to marry the widow of his great- 
 uncle,^" she being in the fourth degree from him, has been held 
 lawful ; and the statute itself recognizes the right of cousins- 
 german, also of the fourth degree, to intermarry. 
 
 §317. Half Blood. — Fourthly. "Moreover, in the construc- 
 
 his wife, he may lawfully marry her * Aughtie v. Aughtie, 1 Phillim. 
 
 sister. Such is the law of this State, 201, 1 Eng. Ec. 72. 
 
 whatever may he the statute of Hen. 5 Man's Case, Cro. Eliz. 228, Sir F. 
 
 8." Blodget u. Brinsmaid, supra, p Moore, 907 ; Wortly v. Watkinson, 2 
 
 27,' 30. Lev. 25i, 3 Keb. 660; M^ithipole's 
 
 1 Poynter Mar & Div. 118 and note ; Case, cited in Howard v. Bartlet, Hob. 
 
 Shelford Mar. & Div. 174; Reg. v. 181; Snowling o. Nursey, 2 Lutw. 
 
 St. GUes, 11 Q. B. 173, 244; Horner 1075; Denny v. Ashwell, 1 Stra. 52; 
 
 V. Liddiard, 1 Hag. Con. 337, 352; Clement v. Beard, 5 Mod. 448; Co. 
 
 Haines u. Jefcott, 5 Mod. 168, Comb. Lit. 235; Ellertonw. Gastrin, 1 Comyns, 
 
 356; Blaekmorew. Brider, 2 Phillim. 359, 318. 
 
 361 ; Gibs. Cod. 412 ; Woods v. Woods, 2 6 Butler v. Gastrin, supra. 
 
 Curt. Ec. 516, 521, 7 Eng. Ec. 181, 182 ; 7 Watkinson v. Mergatron, T. Eaym. 
 
 Morgan v. The State, 11 Ala. 289, 291 ; 464 ; Woods v. Woods, 2 Curt. Be. 516, 
 
 Reg. V. Brighton, 1 B. & S. 447. But 7 Eng. Ec. 181 ; Burgess v. Burgess, 1 
 
 see The State v. Eos well, 6 Conn. 446. Hag. Con. 384. 
 
 2Butleru. Gastrin, Gilb.Ch. 156, 158, ? Murgatroyd v. Watkinson, T. 
 
 159. Jones, 191. 
 
 3 Hni V. Good, Vaughan, 302; Ray 9 Blackmore v. Brider, 2 PhiUim. 
 
 V. Sherwood, 1 Curt. Ec. IK ; Reg. v. 359. 
 
 Chadwiek, 12 Jur. 174, 11 Q. B. 173. m Harrison v. Burwell, 2 Vent. 9 
 
 276 
 
 Vaugh. 206. 
 
CHAP. XVIII.J CONSANGUINITY AND AFFINITY. § 318 
 
 tion of this statute, no difference is made between the whole and 
 the half Mood. Thus it is held incestuous for a man to marry 
 the daughter of his brother of the half blood,i or the daughter 
 of his half sister.^ 
 
 § 318. Further Views: — 
 
 Opinions of the Chiirch. — The expositions thus stated of the 
 statute of Henry VIII. accord with contemporaneous opinions 
 of the Church of England. And in 1563, Archbishop Parker 
 published a table of prohibited degrees, usually known as 
 Archbishop Parker's Table of degrees, ever since, in England, 
 the basis of all judicial opinion on the subject. It was con- 
 firmed by the 99th canon of 1603 ; and though, as we have 
 already seen,^ the canons of this date do not, propria vigore, 
 bind the laity, having received only the royal assent, not the 
 assent of Parliament, — still, it was judicially observed, that 
 " these tables do show the sense of the Church of England, and 
 so are a proper exposition of the law of God, and by conse- 
 quence ought to have great weight with the judges when they 
 expound the Levitical law ; and they are . plainly the decision 
 of this reformed church touching the crime of incest ; and they 
 do retrench the exorbitant and unwarrantable constructions of 
 the Church of Rome, who made the law of God of none effect 
 by theif traditions ; and yet they expound the law of God in 
 its full latitude." * 
 
 ^ Oxenham v. Gayre, Bae. Ab. tit. ^ Reg. v. Brighton, 1 B. & S. 
 
 Mar. & Div. (a). See also, as to the 447. 
 
 prohibited degrees, Gibs. Cod. 412-414. ^ Ante, § 51. 
 
 * Butler V. Gastrin, Gilb. Ch. 156. And see Gibs. Cod. 414. According to 
 this table, 
 
 A man may not marry his A woman may not marry ha- 
 
 1. Grandmother. 1. Grandfather. 
 
 2. Grandfather's wife. 2. Grandmother's husband. 
 
 3. Wife's grandmother. 3. Husband's grandfather. 
 
 4. Father's sister. 4. Father's brother. 
 
 5. Mother's sister. 5. Mother's brother. 
 
 6. Father's brother's wife. 6. Father's sister's husband. 
 
 7. Mother's brother's wife. 7. Mother's sister's husband. 
 
 8. Wife's father's sister. 8. Husband's father's brother. 
 
 9. Wife's mother's sister. 9. Husband's mother's brother. 
 
 10. Mother. 10. Father. 
 
 11. Step-mother. 11. Step-father. 
 
 12. Wife's mother. 12. Husband's father. 
 
 13. Daughter. 13. Son. 
 
 14. Wife's daughter. 14. Husband's son. 
 
 277 
 
§ 320 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 § 319. Modern Views. — But though the aforementioned 
 expositions are in harmony with the former, perhaps also the 
 present, opinions of the Chureh of England, there has been of 
 late a growing disposition, even in the English Church, to 
 remove some of the impediments of affinity. Especially under 
 the light of modern days has it appeared alike unjust and 
 impolitic to forbid marriage with the sister of a deceased wife, 
 — a prohibition scarcely known in the United States.^ A truly 
 enlightened view will doubtless discard altogether affinity as an 
 impediment, while it will extend somewhat the degrees of con- 
 sanguinity within which marriages should be forbidden. For 
 instance, while these connections between cousins-german some- 
 times seem productive of good, they are frequently disastrous 
 to the interests of the parties, and especially of their enfeebled 
 offspring. 
 
 § 320. Voidable or Void. — We have Seen, that, hy the com- 
 mon law of England, marriages within the prohibited degrees 
 are voidable, not void ; " that an American statute, allowing 
 marriage to persona " not prohibited by the laws of God," was 
 construed to render the marriage of a man with his sister's 
 daughter voidable, as at the common law ; that in England, 
 
 A man may not mah-y his , A woman may not marry her 
 
 15. Son's wife. 15. Daughter's husband. 
 
 16. Sister. 16. Brother. 
 
 17. Wife's sister. 17. Husband's brother. 
 
 18. Brother's wife. 18. Sister's husband. 
 
 19. Son's daughter. 19. Son's son. 
 
 20. Daughter's daughter. 20. Daughter's son. 
 
 21. Son's son's wife. 21. Son's daughter's husband. 
 
 22. Daughter's son's wife. 22. Daughter's daughter's husband. 
 
 23. Wife's son's daughter. 23. Husband's son's son. 
 
 24. Wife's daughter's daughter. 24. Husband's daughter's son. 
 
 25. Brother's daughter. 25. Brother's son. 
 
 26. Sister's daughter. 26. Sister's son. 
 
 27. Brother's son's wife. 27. Brother's daughter's husband. 
 
 28. Sister's son's wife. 28. Sister's daughter's husband. 
 
 29. Wife's brother's daughter. 29. Husband's brother's son. 
 
 30. Wife's sister's daughter. 30. Husband's sister's son. 
 
 1 Marriages of this kind have been, the ofience to be committed by mar- 
 aud I presume still are, unlawful in rying the brother's widow. See also 
 Virginia. In Commonwealth v. Perry- Hutchins v. Commonwealth, 2 Va. Cas. 
 man, 2 Leigh, 717, — the statute hav- 331; Commonwealth v. Leftwich, 5 
 ing provided, that, " if the brother hath Rand. 657 ; Kelly v. Scott, 5 Grat. 479 ; 
 married, or shall marry, his brother's ante, § 314, note, 
 wi/e," the marriage should be dissolved, '■'Ante, § 112; Hinks v. Harris, 
 the parties fined, &c. — the court held Garth. 271, 2 Salk. 548. 
 278 
 
CHAP. XIX.] IMPOTENCE. § 321 
 
 since 1835, these marriages are void by statute ; ^ and that they 
 are void in most of the American States.^ The suit for nullity, 
 on the ground of consanguinity or affinity, may in the English 
 practice be promoted by either party to the marriage,^ or by 
 third persons having an interest in the question.* 
 
 CHAPTER XIX. 
 
 321. Introduction. 
 322-324. General View of the Doctrine. 
 325-330. As to Procreation and Copulation. 
 331-338 b. Further Specific Doctrines. 
 339-340. Effect of the Impediment, and Statutes. 
 
 § 321. General Doctrine — How Chapter divided. — Marriage 
 between two persons of one sex could have no validity, 
 because such a connection would not perpetuate population, or 
 produce the comforts and solace proceeding from the family 
 relationship. And the same is substantially true of a union 
 between two persons of differing sex, if one or both of them 
 is destitute of the sexual organs, or if those organs are so 
 deficient in form or strength that they cannot perform their 
 proper function. " It is apparent enough," observed Lord 
 Penzance sitting in the English Divorce Court, " that without 
 sexual intercourse the ends of marriage, the procreation of 
 children, and the pleasures and enjoyments of matrimony, can- 
 not be attained." ^ Therefore, for a marriage to be entirely 
 good, the parties must have their sexual organization and capa- 
 bilities essentially complete. The limits and consequences 
 
 1 And see Reg. v. Brighton, 1 B. & until 1860, Parker's Appeal, 8 Wright, 
 S. 447. Pa. 309. 
 
 2 Ante, § 119, 120. In South Caro- 3 Shelford Mar. & Div. 179 ; Ough- 
 llna it has been held, that a marriage ton, tit. 193, § 15. 
 
 between an uncle and niece is, under * Ante, 110. 
 
 the statute of the State, voidable, not 5 G. v. G., Law Rep. 2 P. & M. 287, 
 
 void. Bowers v. Bowers, 10 Rich. Eq. 291. 
 
 551. So, in Pennsylvania, at least 
 
 279 
 
§ 322 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 of this doctrine are now to be considered. We shall divide 
 what is to be said as follows : I. A General View of the Doc- 
 trine ; II. The Nature of the Impotence as to Procreation and 
 Copulation ; III. Further Specific Doctrines ; IV. Legal Effect 
 of the Impediment, and Statutes relating thereto. 
 
 I.. A G-eneral View of the Doctrine. 
 
 § 322. Doctrine stated — Two Purposes of Marriage. — " 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." ^ And the law recognizes these 
 two as its " principal ends ; " namely, " a lawful indulgence of 
 the passions to prevent licentiousness, and the procreation of 
 children, according to the evident design of» Divine Provi- 
 dence." ^ When one knowingly marries a person past the age 
 of childbearing, he cannot complain of the mere unfruitful- 
 ness.^ And when the person is within such age, and has the 
 power of copula, he cannot ordinarily show, as a matter of 
 fact, that, at the time of the marriage, an incurable sterility 
 existed. Indeed medical writers have said, without qualifica- 
 tion, that such fact cannot be established,* — a proposition 
 probably true in most or perhaps all cases where there is no 
 discoverable malformation. Therefore, in the reported cases, 
 the inquiry has chiefly been as to the ability to copulate. And 
 when, from any cause irremediable, this sort of inability exists, 
 the object of the marriage is frustrate. Quia matrimonium 
 ordinatum fuit, says Oughton, non solum ad evitandum Forni- 
 oationem, sed etiam ad proles procreandas ; si Matrimonium 
 {tale quale') fuerit, inter Viruni et Mulierem, de facto, solemni- 
 zatum, qui omnino inhabiles sunt, non propter cetatem, sed 
 propter aliquod naturale impedimentum, ad proles suscitandas, 
 utpote, propter impotentiam et frigiditatem, maleficentiam, et 
 similia, quce ipso Jure, reddant hujusmodi matrimonium nullum. 
 Hmc impedimenta naturalia aliquando contingant, tarn in Muli- 
 
 1 Ayl. Parer. 360. B., 28 Eng. L. & Eq. 95 ; s. c. in all its 
 
 2 Dr. Lushington, in Deane v. Ave- stages, 1 Spinks, 248. 
 
 ling, 1 Kobertson, 279, 298 ; Lord Stow- 3 Brown v. Brown, 1 Hag. Ec. 523, 
 
 ell, in Briggs ■;. Morgan, 3 Phillim. 3 Eng. Ec. 229. 
 
 325, 1 Eng. Ec. 408, 409. And see the * Guy Forensic Med. Harper's Am. 
 
 observations of Dr. Lushington in B. u. ed. 51. 
 
 280 
 
CHAP. XIX.] IMPOTENCE. § 324 
 
 ere, quam in Viro, — et pars gravata agere potest in causa 
 nullitatis matrimonii} 
 
 § 323. Impoteace viewed as Fraud — Mistake — Warranty. — 
 The contract of marriage, therefore, implies that the parties 
 are capable of consummating it.^ And when an impotent per- 
 son, knowing his defect, induces a person not cognizant of it 
 to marry him, he commits thereby a gross fraud and a grievous 
 injury; 3 and, even if himself ignorant of it, there is equally a 
 violation of the contract, and equally an injury, though with- 
 out intentional wrong. In the former case, the marriage 
 would be clearly voidable on the sole ground of fraud, if the 
 principles governing ordinary contracts were applied to it ; in 
 the latter case, it would seem to be equally voidable on the 
 ground of mistake, and the violation of the implied warranty.* 
 But owing to the peculiar nature of marriage, this infirmity, 
 though sometimes treated of as a pure fraud,^ is, according to 
 the better opinion, to be regarded in a somewhat different 
 aspect,^ yet as presenting some of the elements of fraud ; and 
 we shall have occasion to see, particularly when we come to 
 treat of the procedure in our second volume, that in several 
 respects the rules relating to fraud in marriage are not appli- 
 cable here. 
 
 § 324. How defined. — This matrimonial impediment is 
 termed impotence or impotency. A perfectly accurate and 
 unexceptionable definition of it may not be readily given ; in 
 Mr. Shelford's work it is said to " consist in the incapacity for 
 copulation, or in the impossibility of accomplishing the act of 
 procreation." ^ Eraser defines it as the " incapacity of either 
 
 1 Oughton, tit. 193, § 17. The man and the woman have, in 
 
 2 Poynter Mar. & Div. 123 ; Shelford words, made over a right to their 
 Mar. & Div. 201 ; Oughton, tit. 193, persons respectively for the purposes 
 § 17 ; Chitty Med. Jurisp. 378. of marriage ; but making over the 
 
 ' Briggs V. Morgan, 3 Phillim. 325, right is, in effect, making over nothing, 
 
 1 Eng. Ec. 408, 410. where one Is impotent or the other in- 
 
 * Ante, § 116, 167, 206. Eutherforth capable." Ruth. Inst. b. 1, o. 15, § 9. 
 
 puts the doctrine thus : " This contract, See also Rogers Ec. Law, 2d ed. 640. 
 
 like all others, is binding conditionally, ^ Benton v. Benton, 1 Day, 111 ; 
 
 so that a failure of performance on one Guilford v. Oxford, 9 Conn. 321, 327. 
 
 part releases the obligation of the other 6 Burtls v. Burtis, 1 Hopk. Ch. 557 ; 
 
 part. Impotency, therefore, on the part Perry v. Perry, 2 Paige, 501. 
 
 of the man, or incapacity on the part of 7 Shelford Mar. & Div. 202. 
 the woman, will set the contract aside. 
 
 281 
 
§ 325 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 spouse for the act of copulation, or, as some think, the want of 
 power to procreate children." ^ Probably a better definition 
 is, that impotence is Such an incurable incapacity as admits of 
 neither copulation nor procreation. Let us look at some of these 
 points more in detail. 
 
 11. The Nature of the Impotence as to Procreation and Copu- 
 lation. 
 § 325. Scotch Doctrine — Doctrine of Canon Law. — Mr. 
 Fraser says, the question is yet undetermined in Scotland, 
 whether the husband's want of power seminandi constitutes 
 impotence, while he has the potentia copulandi; and, on the 
 other hand, whether a woman with the latter power, but utterly 
 barren, is to be held as impotent.^ But the burden of the com- 
 plaint in most of the cases he refers to, is the inability to beget 
 children. And he adds : " The 98th constitution of Leo, the 
 Philosopher, expresses at great length the utter abhorrence of 
 the Emperor at the doctrine, that the potentia copulandi, with- 
 out the power of procreating children, was sufficient. The 
 most eminent commentators on the canon law are of the same 
 opinion. Brower argues the point with 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 beget- 
 ting of children.^ In a late criminal case, as to whether emis- 
 sio was necessary to constitute the crime of rape. Lord Medwyn 
 is reported to have said, that he held the potentia copulandi, 
 without the potentia seminandi, to form a good defence to an 
 action of nullity on the head of impotency.* This must, how- 
 ever, 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 arcta 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." ^ 
 
 1 1 Fras. Dom. Eel. 53. 5 Sanchez, 7, 92. Nos. 7, 8, 11, 
 
 2 Ibid. and 2, 21, 5, and 7, 96, 7. In these 
 
 3 Brower, 2, 4, 10. passages, Sanchez repeats very strongly 
 * Lord Advocate v. Robertson, 12 the doctrine laid down in the text. 
 
 Mar. 1836. Just. Eep. Coll. App. e i j'rag. Dom. Rgl. 53-55. See also, 
 
 282 
 
CHAP. XIX.J IMPOTENCE. § 327 
 
 § 326. English Doctrine. — In the year 1845, there came be- 
 fore Dr. Lushington, sitting in the Consistory Court of London, 
 a case which sheds no uncertain light concerning the views of 
 this learned judge on the subject. It was a suit instituted by 
 the husband against the wife, on the ground of her alleged im- 
 potence. The proof was, that the woman, as certified by the 
 examiners, was capable of performing the act of generation, 
 and of being carnally known by man, but conception could not 
 follow. This statement of the facts was held to fall entirely 
 short of what was required. " Mere incapability of concep- 
 tion," said the judge, " is not sufficient ground whereon to 
 found a decree of nullity, and alone so clearly insufficient that 
 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 inca- 
 pacity can be removed." ^ 
 
 § 327. Continued. — But the case being peculiar, the testi- 
 mony of the examiners was tlien taken, and the facts were found 
 to be substantially as follows : the external sexual organs, and 
 the development necessary to the creation of sexual desire and 
 gratification, 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 inter- 
 nal organs. There was an entire absence of the uterus. Tlie 
 defect had improved slightly between the first and final exami- 
 nations ; but it was deemed incurable, and not capable of any 
 material further improvement. The only impediment, there- 
 fore, as far as copula was concerned, was in the restricted deptli 
 to which penetration could extend ; and, from the imperfect 
 intercoui'se permissible, actual emission could ensue. Upon 
 these facts, and solely because no complete copula could take 
 place, the marriage was set aside. The learned judge re- 
 marked : " 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 
 
 as to the Scotch law, Robertson's Case, i Deane v. Aveling, 1 Robertson, 
 1 Swinton, 93. 279. 
 
 283 
 
§ 328 a MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 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. 1 can never think that the true interests of society 
 would be advanced by retaining within the marriage bonds par- 
 ties driven to such disgusting practices. Certainly it would 
 not tend to the prevention of adulterous intercourse, one of the 
 greatest evils to be avoided." ^ 
 
 § 328. Continued. — The learned judge added : " If there be 
 a reasonable 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 briefly state the 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 ascer- 
 tained, as when it 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 absolutely imperfect, and I must call it unnat- 
 ural, there is not a natui'al indulgence of natural desire ; and 
 almost of necessity disgust is generated, and the probable con- 
 sequences of other connections, with men of ordinary self-con- 
 trol, 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 calamity be 
 thrown upon another." ^ 
 
 § 828 a. American Boctrine — Maryland. — It is believed that 
 there is no American doctrine differing from this. Indeed, 
 there is a Marylan-d case in which the facts were of the like 
 sort, and they were held to be sufficient. . In the language of 
 
 1 Deane v. Aveling, 1 Robertson, at first to think it all right, and they 
 
 279, 298. And see, for facts very simi- even received medical advice to be 
 
 lar, B. V. B. 28 Eng. L. & Eq. 95 ; i5. c. more moderate in their intercourse, but 
 
 in all its stages, 1 Spinks, 248. In the this was not deemed to be vera copula, 
 
 case of Lewis v. Hayward, 4 Swab. & and a divorce for impotence was ulti- 
 
 T. 115, reversed by the House of Lords, mately granted. 
 
 35 Law J. N. s. P. & M. 105, there was 2 Deane v. Aveling, 1 Robertson, 
 
 evidently a partial and imperfect 279, 299. 
 penetration, indeed both parties seemed 
 
 284 
 
CHAP. XIX.j IMPOTENCE. § 330 
 
 Bartol, C. J., it appeared " that the physical condition of the 
 appellee (the woman) at the time of the marriage, was that of 
 a very imperfect development of the sexual organs, both exter- 
 nally and internally. These organs were in a rudimentary 
 condition, evincing that their development 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 rendered 
 conception impossible, but there was on her part an incapacity 
 for vera copula. That is to say, she was not capable of the act 
 of generation in its natural and ordinary meaning;, but only of 
 incipient and imperfect coition." ^ 
 
 § 829. Hovir in Principle. — It is difficult to say that, on the 
 whole, the foregoing views are not correct in principle, while 
 clearly they are in authority. Still, on the question whether, 
 not in a case of mere barrenness, but of the absence from the 
 person of the woman of those parts of the organism which are 
 essential to maternity, while yet something like vera copula 
 may be practicable, this should not be deemed ground of 
 divorce, there is something to be considered. If the woman 
 were past the age of child-bearing at the time of the marriage, 
 this could not be complained of by the man ; ^ but, if her years 
 were such as to render offspring probable, and if, as to off- 
 spring, she was not really a woman, though she was such as 
 to copula, and especially if she knew her defect and concealed 
 it, there might, on principle, be some reason for holding the 
 marriage to be voidable. Probably such cases are rare in fact, 
 and the instances would be still more rare in which the proofs 
 could be made. 
 
 § 830. Impotence of Copula, but not of Procreation. — If the 
 doctrine suggested in the last section were adopted, it would 
 give to this matter of impotence a less gross and sensual 
 aspect than otherwise it must wear. But, be it adopted or 
 not, what shall be done with another class of cases ; where, 
 for example, an extreme brevity of the vagina, admitting of 
 penetration to even a less extent than in the instance adjudi- 
 
 1 G. V. G., 33 Md. 401, 405. 2 Post, § 333. 
 
 285 
 
§ 331 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 cated by Dr. Lushington, and occasioning pain in the act of 
 imperfect copula, is connected witli a perfect uterus, and com- 
 plete capacity for conception ; ^ or where the man, before mar- 
 riage, suffered an amputation, and so only slight penetration, 
 much less than what Dr. Lushington terms " ordinary and 
 complete intercourse," can take place, yet conception may fol- 
 low ? For it is well known, that women have become pregnant 
 under such circumstances, and in others where even the hymen 
 has not been ruptured.^ Perhaps Dr. Lushington would have 
 said, that a divorce, after the birth of issue, could not be 
 granted ; since one of the ends of marriage had been attained,^ 
 and the offspring should not be bastardized. And, on prin- 
 ciple, why should not this be so, even though no issue had in 
 fact been born, at the time of application made to the court ? 
 But if mere copula is to be deemed the end of marriage, it 
 follows that there can be no marriage where it is impossible, 
 and cases would occur in which there would be perfect power 
 of conception or procreation, yet still the marriage, on this 
 theory, must be held void. In a late English case before the 
 House of Lords, where the wife was petitioner, and it appeared 
 that she had represented herself to have miscarried three 
 times, as probably she erroneously supposed she had done, 
 while yet the hymen was shown not to be broken. Lord Chelms- 
 ford observed : " If a miscarriage actually took place, whatever 
 appearances the person of the appellant may have exhibited, 
 and however imperfect the intercourse may have been, there is 
 of course an end of the appellant's case." * 
 
 III. Further Specific Doctrines. 
 
 § 331. Defect in either Spouse — How numerous the Cases — 
 How viewed. — The cases of impotence are not numerous in 
 fact ; but, when they arise, they require careful consideration, 
 and an accurate understanding of the law. The defect may be 
 either in the man or the woman ; being equally, in each, a sub- 
 ject of legal redress. Lord Stowell, in 1820, remarked, accord- 
 
 1 I Beck Med. Jurisp. 10th ed. 107. < Lewis v. Hayward, 35 Law J. n. s. 
 
 2 Dean Med. Jurisp. 6-8. P. & M. 105, 107. 
 ' See 1 Bl. Com. with notes by 
 
 Chitty and others, 440. 
 
 286 
 
CHAP. XIX.] IMPOTENCE. § 331 a 
 
 ing to one report of his observations, that three suits only had 
 been brought by the man within the last sixty years, and that 
 these had been unsuccessful, as was also the suit then before 
 him.^ Sir John NichoU said, in the same year, sitting in the 
 Court of Arches, that there had been but one suit by the hus- 
 band within his recollection.^ But when these cases come, the 
 courts are to administer the law in them the same as in any 
 other. " Courts of law are not invested with the power of 
 selection ; they must take the law as it is imposed on them. 
 Courts of the highest jurisdiction must often go into cases of 
 the most odious nature, where the proceeding is only for the 
 punishment of the offender ; here the claim is for a remedy, 
 and the court cannot refuse to entertain it, on any fastidious 
 notions of its own." ^ 
 
 § 331 a. Continued. — Since the foregoing observations were 
 originally made, divorces for impotence have become more 
 numerous in England than they were then, and it is believed 
 that the same is true in our own country. In England, the 
 present Divorce Court was established, as we have seen,* in 
 1858, and the Reports by Swabey and Tristram, and the Law 
 Reports, down to and including the year 1872, contain fifteen 
 reported causes of this sort ; in eight of which the wife was 
 applicant for divorce by reason of the alleged impotence of the 
 husband, in four the husband was petitioner against the wife, 
 in one the husband sued for adultery and the wife unsuccess- 
 fully resisted the suit by setting up his impotence, in one the 
 wife sued the husband for cruelty and he showed in answer her 
 impotence and obtained a decree of nullity for it, and in one 
 
 1 Briggs V. Morgan, 3 Phaiim. 325, 2 Norton v. Seton, 3 Phillim. 147, 1 
 
 1 Eng. Ec. 408. But on this point the Eng. Ec. 384, 886. 
 report of the case in 2 Hag. Con. 324, 3 Lord Stowell, in Briggs v. Morgan, 
 
 326, is somewhat different. According supra ; Harris v. Ball, cited 2 Hag. Con. 
 
 to the latter report, the learned judge 327. Still, the court, in consideration 
 
 said : " Cases of this kind, brought by of the peculiar character of the proofs, 
 
 the liusband against the wife, are cer- will not be disposed to encourage these 
 
 tainly not very frequent ; it is said that suits brought without necessity. Lord 
 
 there have not been more than two Stowell, in Guest v. Shipley, 2 Hag. 
 
 instances estabhshed by proof in sixty Con. 321, 4 Eng. Ec. 648. And see 1 
 
 years, which it requires no very deep Greenl. Ev. § 253. 
 philosophy to account for." And see * Ante, § 65. 
 Devanbagh v. Devanbagh, 6 Paige, 554, 
 557. 
 
 287 
 
§ 331 a MASBiAeE tmposfsbb^y cotesBTUTKii. [book m. 
 
 it vas attempted to preTent a. husband from adminiatering on 
 the effects of his deceased wife by showing him to have berai 
 impotent daring the marriage. One canse of the increase cX 
 these cases is nndoabtedly the greater fecility of making 
 ^oofe, in consequence of tiie statutes whidi permit parties to 
 be witnesses. " Before the lav of evidence was altered by 
 admitting bodi parties to teU thsr own tale," observes Lrad 
 Penzance, '* the matrimonial tribunal stood in a vei-y different 
 poration from what it now occupies in relation to cases of tins 
 delicate and critical character. Except the answer upon oath 
 of the accused party, the sole means of judgment were tte 
 outward and bodily signs revealed on medical inspection. This 
 condition of thin^ had at least one merit, if it had greatra' 
 defects. Its merit lay in this, that it became very difficult fat 
 a woman to approach the conrt, save with those cogmt signs 
 of virginity which constituted reliable proof that the marriage 
 had really never been consummated. And this was sorely a 
 merit ; for it saved the court from possible impositi<m upon this 
 fiict, and limited the number of suits to thf»e rare cases in 
 which, from some cause or other, no sexual interconise had 
 taken |dace."^ In most of the modem cases in whidi the 
 defect is in the man, it has proceeded from some weakness 
 produced perhaps by selfindnlgence;' then, if the woman 
 was a widow at the time of the marriage, or if from any canse 
 she is wanting in the signs of vitginity at the time when she 
 asks the relief of the oonrt,^ it becomes difficult for her to 
 
 1 F. E. S., 4 Swab. & T. 86, ^ 93. > It b vdl known diat, in manj in- 
 
 - Of tlie fifieen cases mentioned in sianoes, the agiB f^ tii g iniiy aie on- 
 tiie text, diese ie, 1 lliinltj no me in cotain, even vbexe tiigiuity in &rt 
 whicJi the &ct sppeaxeA that tfaoe exists. I bare kx^ed tfaim^ die 
 was any defect in the man Tjable Jd «Mglif cases mentiooed in the text; 
 iB^ectiim. In some, the wife had a whereia the wife was tfaepetitimiB-; in 
 dsforee fx his inahifity, dioagh the H.». CI Swab. 6T. 60^ tfaesJ^^BBof 
 eTidoiDe of the inspeciois was quite nr^nity wete de^iof ed, bnt she was 
 dsdnct in aSnning he appazcnt able to ^bow diat it had occnned in a 
 powo-; fiH' examine, in M. v. H., 3 comse <^ medical Izeatment; in S-k.K. 
 SwabL k T. 517, 32», bm, " mgans cf 3 Swab. & T. 210, a medical witness 
 geoaa6aa pofecdy healdiy; ladia who examined the woman "bdjered 
 moie than nsnally T^anns in dimei^ she is a viigin, but it is a difiifiilf qms- 
 aoas and appearance," yet the woman tioii, in some cas^ you cannot he nus- ' 
 was foimd to be a Tii^n a^ter duee takai,iBothei8yfra may ;''in]f.aiH., 
 yeats cohabitation, and to be apt, and SSwab. fcT.al7,tfa»e wasa'pafeet 
 die court granted her a dirace- hymen;" in IL •. B, 3 Swab, t T. 
 
 288 
 
CHAP. XIX.J IMPOTENCE, § 332 
 
 make out her case, however just in itself, where the former 
 rules prevail. But, when, both parties can be examined on 
 oath before the court, the difficulty in a great measure disap- 
 pears, and the path to justice is more open and plain, i Per- 
 haps, also, there is among the mass of people less sensitiveness 
 about agitating causes of this nature now than formerly. 
 
 § 332. Must exist at Marriage — Incurable — Surgical Opera- 
 tion. — Impotence, to be a ground of divorce, must exist at 
 the time of the marriage. A. sentence for this cause declares 
 the marriage void from the beginning,^ which it could not do 
 if the matter occurred subsequently to the nuptials. Though 
 a party should become impotent after marriage, as the effect of 
 incontinence before, still the marriage is good, the impediment 
 not existing when it was entered into.^ So also the defect 
 must be incurable.^ And the burden of proof, in the suit, is 
 on the plaintiflF to establish both that it existed at the time of 
 the marriage, and that it is incurable.* When it is a natural 
 defect, the legal presumption is, that it existed at the time of 
 marriage solemnized ; when it is accidental, the contrary pre- 
 sumption seems to arise.^ When there appears a probability 
 of capacity, or when the impediment which had existed is 
 removed, the court cannot declare a nullity.^ And if the 
 impediment is of a nature to be removed without serious 
 danger, by a surgical operation which the party refuses to 
 undergo, still it cannot lay the foundation for a divorce on the 
 
 550, " a hymen ; " in F. ti. D., 4 Swab. & 1835 ; Bascomb v. Bascomb, 5 Fost. N. 
 
 T. 86, the inspectors of the wife " cannot H. 267. 
 
 determine whether she is a virgin;" " Ferris v. Ferris, 8 Conn. 166; 
 
 in L. f. H. 4 Swab. & T. 115 (reversed Anonymous, 35 Ala. 226, 229 ; Bas- 
 
 35 Law J. N. s. P. & M. 105), " «. hy- comb v. Bascomb, 5 Fost. N. H. 267 ; 
 
 men ; " in T. v.B., Law Rep. 1 P. & M. G. v. G., 33 Md. 401. And see Norton v. 
 
 127, " the physical appearances are, to Norton, 2 Aikens, 188. 
 
 say the least, consistent with the con- * Brown v. Brown, 1 Hag. Ec. 528, 
 
 summation of the marriage ; " in IT. v. 3 Eng. Ec. 229 ; Newell w. Newell, 9 
 
 J., Law Kep. 1 P. & M. 460, the same. Paige, 25 ; Devanbagh w. Devanbagh, 
 
 Then, again, according to medical 5 Paige, 554 ; Welde v. Welde, 2 Lee, 
 
 testimony in one case, the marriage may 580. 
 
 have been consummated, and still the * Godol. Ab. 494 ; Sanchez, lib. 7 
 
 hymen remain. L. u. H.,4 Swab. & T. disp. 103, n. 4; Shelford Mar. & Div. 
 
 115. 20*4. 
 
 1 Ante, § 105, 112, 118, 322, 323. « Welde v. Welde, 2 Lee, 580, 586 ; 
 
 2 Belcher u. Belcher, reported in a Devanbagh v. Devanbagh, 6 Paige, 176; 
 separate volume by Phillimore, June 6, 1 Fras. Dom. Rel. 55. 
 
 VOL.1. 19 289 
 
§ 332 MAERIAGB IMPEEFECTLT CONSTITUTED. [BOOK III. 
 
 ground of impotence ; since such a rule would enable the 
 faulty one to be impotent or capable, to make the marriage void 
 from the beginning or good, at his election.^ So it has been 
 held, and perhaps correctly, on the bald case thus put; but, in 
 some late English cases, where the facts were not quite as thus 
 stated, yet nearly so, the question is deemed to be a practical 
 one, whether or not the complaining party can so influence the 
 other as to cause the impediment to be removed. Thus, in an 
 Englisli case lieard by Sir C. Cresswell, the late judge ordinary, 
 the result of the evidence ' was, as observed by the learned 
 judge, " 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 considerable danger 
 to her life, and the success of it, with regard to the result to 
 be obtained, doubtful." The judge proceeded : " What course 
 is to be taken ? The report of the medical inspectors 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 suggested, 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 still 
 later case, not where a surgical operation was required, but 
 medical treatment, and the woman had taken some of the pre- 
 scribed remedies but others she refused to take, alleging that 
 they would injure 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 
 impossible. There are means by which, in my opinion, her 
 condition may be remedied ; but, in order that they should suc- 
 ceed, it is necessary that she should lend herself to them. If 
 
 I Devanbagh v. Devanbagb, 6 Paige, 2 ^r. v. H., 2 Swab & T. 240, 244, 
 175 ; 1 Pras. Dom. Rel. 55. 245. 
 
 290 
 
CHAP. XIX.J IMPOTENCE. § 333 
 
 she were to return to cohabitation, and were to refuse to take 
 chloroform and the other remedies prescribed, I think there 
 could be no consummation." Upon this the learned judge 
 observed : " It is unquestionable 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 consum- 
 mated. Without speculating jon 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 can- 
 not 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 physi- 
 cally impossible, 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 can- 
 not be sufficient to render a marriage valid if it be shown that 
 the connection is practically 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 husband to do in the event of 
 his being obliged to return to cohabitation in order to effect the 
 consummation of the marriage ? Is he by mere brute force to 
 oblige his wife to submit to connection ? Every one must 
 reject such an idea."^ Again, in cases where the wife is the 
 applicant for divorce, and the impotency of the husband pro- 
 ceeds from self-abuse which may be cured by his exercising 
 moral restraint over himself, yet not otlierwise, and he will not 
 exercise such restraint, this sort of curability, it woiild seem, 
 is not deemed to take away her right to the divorce.^ That 
 these views by the English courts are sound, it appears to the 
 writer no argument is required to show. 
 
 § 333. Origin of Impotence — "Woman past Age of ChUdbear- 
 ing. — The origin of the impotence is unimportant. Suppose 
 
 1 G. V. G., Law Rep. 2 P. & M. 287, 2 gee and compare S. o. B., 3 Swab. 
 289-291. And see post, 338 a. & T. 240 ; F. w. D., 4 Swab. & T. 86. 
 
 291 
 
§ 333 
 
 MARRIAGE IMPERFECTLY CONSTITUl*teD. [BOOK III. 
 
 it not to be connate, but to have come, subsequently to the 
 birth of the impotent party, from accident or otherwise : still, 
 having existed at the time of the marriage, it has the same 
 effect as if it had always existed.^ A qualification of this rule 
 was intimated, arguendo, in two English cases, to the extent, 
 that, if a man marries an old woman, naturally capable, yet 
 past the age of childbearing, with a supervening impediment 
 to consummation, which has come as a disorder peculiar to 
 advanced years, the court will npt interfere for his relief. 
 This qualification, if admitted, must be deemed a branch of 
 the general doctrine, that a man shall not complain of what he 
 knew, or had reason to suspect, at the time of the marriage. 
 The primary object of matrimony being the procreation of 
 issue, " a man," in the language of Sir John NichoU, " of sixty, 
 who marries a woman of fifty-two, should be contented to take 
 her taiiquam soror.^' " Suheunt morbi," says Lord Stowell, 
 
 1 Ayl. Parer. 228 ; Chancellor Wal- 
 worth, in Devanbagh v. Devanhagh, 
 5 Paige, 554, 557 ;. Essex v. Essex, 2 
 Howell St. Tr. 786, 795, 804, 849, 857. 
 This latter case, usually cited as the 
 Countess of Essex's, or the Earl of 
 Essex's Case, though perhaps of doubt- 
 ful authority as to the point more 
 directly involved in it (see post, § 335), 
 is quite conclusive of the doctrine stated 
 in the text. For the twelve commis- 
 sioners who heard the case, among 
 whom were the most able and learned 
 doctors of the age, concurred in the 
 opinion, that it was immaterial whether 
 the defect were natural, or superinduced 
 " by accidental means ; " and even the 
 Archbishop of Canterbury, rampant 
 in his opposition to the conclusion of 
 the majority of the commissioners on 
 the principal point, still employed, in 
 his "speech intended to be spoken," the 
 following 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 debiUty'. The second are 
 
 292 
 
 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. The third 
 hath no coherence with this nobleman." 
 p. 857. He also said, that the impedi- 
 ment in Bury's Case was having the 
 testicles " stricken ofl' witli an horse," 
 p. 849. No complaint was ever made 
 with 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 de- 
 ceived concerning the fact of the impo- 
 tence. As to Bury's Case, see also ante, 
 § 113. 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 ex- 
 traordinary case of a suit for nullity of 
 marriage, by reason of the man's impo- 
 tence superinduced by malpractices in 
 youth ; in which, however, the charge 
 was held not sufficiently proved, and 
 the man dismissed, but condemned in 
 costs." I have not been able to obtain 
 the volume referred to, and can there- 
 fore give no further account of this 
 case. 
 
CHAP. XIX.] IMPOTENCE. § 335 
 
 " is the natural description of late periods of life ; and dis- 
 orders, when they do come at such periods, must be borne 
 with." 1 
 
 § 334. Past Age of Child-bearing, continued. — And there is a 
 late English case, which seems to have utterly exploded the 
 doctrine, if it ever existed, that parties past the age of pro- 
 creation shall therefore be deprived of the benefit of this branch 
 of the matrimonial law. A man of fifty-four married a woman 
 of forty-nine, and the court granted him a sentence of nullity 
 on the ground of her impotence. Alluding to the two cases 
 referred to in our last section, the learned judge ordinary. Sir 
 C. Cresswell, observed : " But the decision [distinguishing the 
 decision from the dicta] 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 I think I must take the same 
 
 course here." ^ 
 
 § 335. Impotence versus Hanc. — If, as a matter of physio- 
 logical truth, the possibility of a man being totally and incu- 
 rably impotent as to one woman, while capable as to others, is 
 admitted^ (and the writer is disposed neither to admit nor to 
 deny this proposition as respects copula; as respects procrea- 
 tion it is undoubtedly true), the question may again arise, as 
 it did in 1613, whether " impotency versus hanc," as it was 
 termed, is sufficient to annul the marriage. In that year, the 
 Countess of Essex, on petition to James I., obtained from him 
 
 1 Bmggs V. Morgan, 2 Hag. Con. ' Guy Forensic Med. 60. Impo- 
 S24, 331, 8 Pliillim. 325, 1 Eng. Ec. tence " may be either absolute or rela- 
 408, Brown v. Brown, 1 Hag. Ec. 523, tive. In the first, there is a total inca- 
 3 Eng. Ec. 229. There seems to have pacity; in the second, the incapacity 
 been some difficulty in understanding exists only as between particular par- 
 thls latter case. That part of the re- ties." Dean Med. Jurisp. 4. In a late 
 porter's note which relates to the point, English case. Dr. Lushington gare in 
 under discussion is as follows : " Sembte, his adherence to this doctrine of impo- 
 that an impediment not natural, but tence versus hanc ; at least, to its legal 
 supervening, is no ground of nullity." sufficiency, if proved. He considered. 
 In Waddilove's Digest, p. 197, it is that it alone is shown whenever the sole 
 " Semhle, that an impediment super- evidence is of non-consummation, after 
 vening after marriage is not a ground the cohabitation of three years. Anon- 
 of nullity." Evidently neither of these ymous, 22 Eng. L. & Eq. 637 ; s.o.nom. 
 dissimilar statements approximates the N. v. M., 2 Robertson, 625 ; s. o. nom. 
 idea really intended by the court. A. v. B., 1 Spinks, 12. So also, by 
 
 2 W V. H , 2 Swab. & T. 240, implication, Cresswell, J., in H. «. C, 1 
 
 244, Swab. & T. 605, 615. 
 
 293 
 
§ 336 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 a commission,^ addressed to twelve of the principal bishops 
 and doctors of the ecclesiastical law, to hear her complaint 
 against her husband for his impotency. Her libel alleged, that 
 there had been a triennial cohabitation ; that she was apta 
 viro, and virgo intacta; that the earl was wholly impotent and 
 unable 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." 
 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 in her libel had alleged, his power with other women. 
 The proofs established the marriage and triennial cohabitation ; 
 while also the midwives and noble matrons, who, by appoint- 
 ment of the court, examined the lady's person, reported her to 
 be a virgin, yet with abilities for copula and fruitfulness. Here 
 was sufficient evidence, at least primd facie, to show entire 
 impotence in the earl ; but the peculiar allegation in the libel 
 forbade this view, and the question was, whether a divorce 
 could be granted, assuming the impotence to extend only as to 
 her. The royal influence was exerted powerfully 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 the divorce, 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 sub- 
 stituted 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 court. On the other iiand, room 
 may exist for doubt, whether the allegation of " impotence 
 versus hano" was not a device to save the feelings and reputa- 
 tion of the earl ; since, though he ventured on a second mar- 
 riage, he had no issue.^ 
 
 § 336. Classifications of Impotence. — Writers on medical 
 
 1 " The court of the king's high com- before been exercised under the pope's 
 
 mission, in causes ecclesiastical, was authority." It was abolished by Stat, 
 
 erected and united to the regal power 16 Car. 1. c. 11. 8 Bl. Com. 67, 68. 
 
 by virtue of the statute 1 Eliz. c. 1, in- « Essex v. Essex, 2 Howell St. Tr. 
 
 stead of a larger jurisdiction which had 786 ; and ante, § 333, note. 
 294 
 
CHAP. XIX.] IMPOTENCE. § 338 
 
 jurisprudence have made differing classifications of impotence, 
 in accordance with their differing tastes ; but these classifica- 
 tions are of little practical importance to the lawyer, none of 
 them being drawn on true legal distinctions.^ What the lawyer 
 wants is to see the lines separating those impediments which 
 somewhat obstruct, but do not prevent, copula, from those 
 which sufficiently hinder it to lay the foundation for divorce ; 
 separating also the curable and the incurable ; and separating 
 those defects which are discoverable on inspection, from those 
 which can be ascertained sufficiently only on special evidence 
 of actual inability, or a triennial cohabitation. 
 
 § 337. Forms of Impotence. — Neither can we know, in ad- 
 vance, what forms this impediment of impotence may assume 
 in the future.^ Ayliffe,, who wrote more than a century 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 impotence, and 
 that it has assumed numerous other forms. The reader will 
 find, ou this subject, much information in the treatises upon 
 medical jurisprudence, particularly in the late enlarged edition 
 of Dr. Beck's work. Chancellor Walworth has perhaps well 
 remarked, on the authority of this writer, that the instances 
 of absolute and incurable impotence are few ; that the defect 
 is generally palpable to the senses ; and that, of cases formerly 
 assigned to this class, many have given way before the modern 
 improvements in surgery.* And his conclusion is just, that 
 courts should proceed in these causes of impotence with the 
 greatest vigilance." 
 
 §338. Peculiar Case — Excessive Sensitiveness. — There was 
 
 1 Dr. Beck divides the "causes of female he classifies as, 1. Narrowness 
 
 impotence," after the manner of Foder^, of the vagina ; 2. Adhesion of the labia; 
 
 into " absolute, curable, and accidental, or 3. Absence of the Vagina ; 4. Imper- 
 
 ^emporary,-" which is somewliatconven- forate hymen; 5. Tumors occupying 
 
 ient for legal contemplation. 1 Beck the vagina. lb. 60. A similar classifl- 
 
 Med. Jurisp. 10th ed. 88. Dr. Guy cation is adopted by Dean, 
 classifies impotence in the male as, 1. 2 i Beck Med. Jurisp. 10th ed. 100. 
 Physical ; 2. Moral or Mental. Under ' Ayl. Parer. 227. 
 the first head he has a. Age ; b. Mai- * But see ante, § 331 a and notes, 
 formation or defect of the penis ; c. De- * DevanbaghK. Devanbagh, 5 Paige, 
 
 feet or disease of the testicles ; d. Con- 554, 557. See Pollard v. Wybourn, 1 
 
 stitutional disease or debility. Guy Hag. Ec. 726, 3 Eng. Ec. 308. 
 
 Forensic Med. 52. Impotence in the 
 
 295 
 
§ 338 a MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 a case in Massachusetts so novel, that, since it has not found 
 its way into the reports, it may properly be stated here. A 
 husband proceeded against his wife for divorce, alleging her 
 impotence. There was no obstruction, outwardly appearing, 
 to the consummation of the marriage ; but there was an intense 
 sensitiveness in all the sexual region, so intense that any pres- 
 sure there, even external, produced a degree of pain and suf- 
 fering which she was unable to endure. She was evidently 
 not aware of her condition until after the marriage ; and then 
 she gave what consent she could to the unsuccessful embraces 
 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, sentence for 
 divorce.^ 
 
 § 338 a. Anottier like Case. — Another case, quite analogous, 
 in which the above case as here reported was brought to the 
 attention of the court, has occurred-' in England. A wife 
 having sued her husband for cruelty, he replied alleging 
 nullity of the marriage by reason of her impotence, and 
 obtained sentence of divorce against her on the following 
 facts. There was no malformation or structural defect, but 
 she suffered from an excessive physical sensibility. There 
 was a question whether or not this condition was curable, but 
 that is stated in a previous section .^ The man was of 
 undoubted ability, and made frequent attempts, but the mar- 
 riage 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 pecul- 
 iar nature, especially those which are associated with the 
 moral feelings, pass away as time goes on. But here there 
 
 1 Supreme Judicial Court for Suf- to the kindness of Judge Fletcher for a 
 folk, March T., 1850. I am indebted statement of the facts of this case. 
 
 2 Ante, § 332. 
 296 
 
CHAP. XIX.] IMPOTENCE. § 339 
 
 has been nearly three years' cohabitation, and therefore ample 
 opportunity has been afforded for any merely temporary diffi- 
 culty to pass away. It sometimes happens that a nervous 
 condition has prevented consummation at first ; but such a 
 condition would be removed in the course of time, and the 
 length of the cohabitation therefore affords a strong basis for 
 the conclusion at which the court ought to arrive. ... 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 deformity. No one knows 
 what may happen, for unforeseen things happen daily." ^ 
 
 § 338 6. Deed of Separation. — It has been held that a deed 
 of separation between a husband and his wife, is not a bar to a 
 bona fide application for divorce on the ground of impotence 
 existing at the time of the marriage.^ 
 
 IV. Legal Effect of the Impediment, and Statutes relating 
 
 thereto. 
 
 § 339. Voidable — The Statutes. — We hardly need add, that 
 impotence is a canonical impediment, rendering the marriage 
 voidable, not void.^ Still, plain as this proposition is, it was 
 denied in the English Probate Court in 1868, by parties 
 who, on a wife's death, sought to resist the husband's claim to 
 admininister on her estate, alleging the marriage to have been 
 void by reason of his impotence. But the court refused to 
 accede to this view, the learned judge observing " that the 
 practice 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." * Therefore 
 until sentence passed, in the lifetime of both the parties, tlie 
 marriage is perfectly good ; but the sentence makes it void 
 from the beginning. The statutes generally of the States of 
 this country mention impotence as a ground of divorce, without 
 saying whether the decree of divorce operates to annul the 
 marriage as from the beginning, or only as from the date of its 
 
 1 G. u. G., Law Eep. 2 P. & M. Div. 123 ; Sneed v. Ewing, 5 J. J. Mar. 
 287, 290, 292. 460 ; Smith v. Morehead, 6 Jones Eq. 
 
 2 6. V. G., 33 Md. 401. 360. 
 
 8 Elliott V. Gurr, 2 Phillim. 16, 19, 1 * A. ... B., Law Rep. 1 P. & M. 559, 
 Eng. Ec. 166, 168; Poynter Mar. & 563. 
 
 297 
 
§ 340 MARRIAGE IMPERFECTLY CONSTITDTBD. [BOOK III. 
 
 renditioQ ; but it is plain that the principles of law applying 
 to the case leave it here as it stands in England. The mar- 
 riage was a voidable one ; the sentence renders it void from 
 the beginning. 1 
 
 § 339 a. The Statutes, continued. — The statutes on- this sub- 
 ject are in different words ; for example, in some of the States, 
 the terms are " the impotence of either party at the time of the 
 marriage." ^ In New Hampshire, " a divorce from the bond of 
 matrimony shall be decreed for the following causes, in favor 
 of the innocent party ; impotency," &c. And it was held, 
 that the impotence must exist at the time of the marriage, 
 though the statute is silent on the point. Said Woods, J. : 
 " When the legislature enacted the cause under consideration, 
 we do not think they intended to adopt a different principle 
 from that which had been recognized in England, and, per- 
 haps we may safely say, in all other Christian countries, as 
 establishing a just foundation for a dissolution of the bond of 
 matrimony." ^ And this view, it may be added, accords with 
 the general doctrine, that statutes are to be interpreted in har- 
 mony with the common law.* 
 
 § 840. The Procedure. — There are, relating to this matter 
 of impotence, some principles which may be treated of either 
 in connection with the law of the subject, or of the procedure, 
 as we may choose to regard them. The reader, therefore, 
 should not deem his task done until he has perused the chap- 
 ter relating to the procedure in these cases, to be found in our 
 second volume.^ 
 
 1 Ante, § 96 ; Smith v. Morehead, 3 Bascomb v. Bascomb, 5 Tost. N. H. 
 6 Jones Eq. 360; post, § 339 a. 267, 273. 
 
 2 G. V. G., 33 Md. 401 ; Kempf v. * Bishop Stat. Crimes, § 114, 119, 
 Kempf, 34 Misso. 211. 124, 142, 144. 
 
 5 Vol. II. § 674 et seq. 
 
 298 
 
CHAP. XX.J PENAL CONSEQUENCES. § 341 ffl 
 
 CHAPTER XX. 
 
 PENAL CONSEQUENCES OP WRONGFUL ACTS CONNECTED WITH THE 
 SOLEMNIZATION OP MARRIAGE. 
 
 341. Introduction. 
 341 a. As to the Parties. 
 342-347. As to Third Persons. 
 
 § 341. Penal Consequences, and Nullity of the Marriage, distin- 
 guished — Scope and Order of the Discussion. — We have already 
 seeu, that, though the law may forbid a particular method of 
 solemnizing marriage, yet, if parties disregarding the provision 
 interchange with each other the mutual consent in any other 
 form, this, according to the doctrine mostly prevailing in the 
 United States, constitutes them husband and wife.^ But penal 
 consequences may nevertheless flow to themselves, and, if the 
 marriage is by a clergyman or magistrate, to this officiating 
 person. To trace minutely the laws of the several States on 
 this subject would be unwise, yet the reader- may derive some 
 benefit from being referred to the decisions. They are of two 
 classes, — those which inflict pains on the parties, and those 
 which inflict pains on tliird persons connected with the cele- 
 bration of the marriage. We shall, therefore, consider, I. 
 Penal Consequences to the Parties ; II. Penal Consequences 
 to Third Persons. 
 
 I. Penal Consequences to the Parties. 
 
 § 341 a. Miscellaneous Views. — There are not many statutes 
 inflicting pains on the parties; except those which make it 
 indictable in them to commit polygamy,^ to marry after being 
 divorced as the guilty party ,^ or to marry a person of another 
 race or color,* and the like, — matters which have been already 
 discussed' in these pages. We have seen,* that, in Scotland, 
 
 1 Ante, § 279, 283-287 a. * Ante, § 308 et seq. 
 
 2 Ante, § 296 et seq. 5 Ante, § 287. 
 
 3 Ante, § 304 et seq. 
 
 299 
 
§ 342 MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK III. 
 
 where informal marriages are common, the law imposes penalties 
 on the parties for the informal solemnization ; but, in our country, 
 where they are less common, it is not within the knowledge of 
 the writer that these penalties anywhere exist. It appears to 
 be penal in North Carolina to marry a girl under fifteen years 
 of age ; ^ and perhaps an examination of the statute books of 
 the several States would disclose other provisions of this 
 general sort. If a statute makes the official persons who 
 celebrate a particular marriage indictable, it may. be a question 
 whether the parties are not therefore indictable as aiding and 
 abetting at the act. There appear to be no adjudications 
 upon this point, and the doctrines governing it have been 
 sufficiently unfolded by the author in his other books.^ 
 
 II. Penal Consequences to Third Persons. 
 
 § 342. The Clergyman — Minors — Consent of Parents, &o. — 
 Those enactments which have come oftenest under review by 
 the courts, are such as are framed for the purpose of prevent- 
 ing clergymen -and others from joining minors in marriage 
 without the consent of their parents or guardians. Thus in 
 Arkansas it is provided, that " persons authorized by this act 
 to solemnize marriages shall not perform any marriage cere- 
 mony of any male over the age of seventeen years and under, 
 the age of twenty-one years, nor 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." And the construction put upon 
 this enactment is, that, unless the parent or guardian is present 
 at the solemnization of the marriage, the clergyman performing 
 the ceremony must, to screen himself from the penalty pro- 
 vided for a breach of the law, have the actual written consent 
 of the guardian or the parent ; and he cannot excuse himself 
 by showing, that he proceeded on .a verbal message sent to him 
 through a third person by the parent consenting.^ And, in 
 
 1 Ludwick V. Stafford, 6 Jones, 109. 145, 594, 662, 770, 771, 775, 1029 ; 1 
 
 2 See, among other places, 1 Bishop Bishop Crim. Proeed. 2d ed. § 332 ; 
 Crim. Law, 5th ed. § 656-659, 685-689 ; 2 lb. § 3, 5, 6, 14, 59. 
 
 Bishop Stat. Crimes, § 185, 140, 142, » Smyth v. The State, 13 Ark. 696. 
 300 
 
CHAP. XX.] PENAL CONSEQUENCES. § 344 
 
 this class of statutes, it has been deemed not sufficient for the 
 person indicted or otlierwise prosecuted to show, in defence, 
 that he acted in good faith, if he violated the letter of the law.^ 
 Thus, not only is he not protected when proceeding on a verbal 
 authority, but he is bound to know, at his peril, whether or 
 not the parent or guardian resides within the State.^ To this 
 very broad proposition there must be a certain qualification, 
 depending on principles elsewhere discussed.^ 
 
 § 343. Continued. — We have seen, that, by the express 
 words of the Arkansas statute, the prohibition to marry with- 
 out the consent of parents or guardians is confined to cases in 
 which the parent or guardian lives within the State. In Penn- 
 sylvania the same result has been arrived at by judicial con- 
 struction of the enactment. Said Gibson, C. J. ; " It is evident 
 from the nature of the subject, and from the specific provisions 
 for it, that the statute of 1729-30 was enacted for none but 
 the inhabitants of the province. It is not the proper business 
 of a government to legislate for the domestic relations of a 
 foreign people. The laws of a country are made for the pro- 
 tection 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 a Vermont statute, requiring the 
 consent of parents, was held not to be applicable where there 
 was no parent living.^ 
 
 § 344. Continued — Secret, &c. — If the marriage was in secret, 
 this was in one case in North Carolina deemed important on a 
 question of the limitation of the time for finding an indictment.® 
 In Missouri, a statute having forbid the marrying of any minor, 
 without the consent of the parent or guardian, or other person 
 
 s. p. in New Jersey, Wyckoflf v. Boggs, ^ xhe State v. Willis, supra. 
 2 Halst. 138. And see Bishop Stat. ' Bishop Stat. Crimes, § 355-359, 
 
 Crimes, § 237. As to the form of the 1021, 1022, and the other sections there 
 
 indictment, see The State v. Willis, ^ referred to. 
 
 Eng. 196 ; The State v. Ross, 26 Misso. * BoUin «. Shiner, 2 Jones, Pa. 205. 
 
 260; The State v. Winright, 12 Misso. As to the North Carolina statute on this 
 
 410. See also Roberts v. The State point, see Caroon u. Rogers, 6 Jones, 
 
 Treasurer, 2 Root, 381 ; White v. The N. C. 240. 
 
 State, 4 Iowa, 449. ' ^ Holgate v. Cheney, Brayt. 158. 
 
 1 Smyth V. The State, supra. « The State v. Watts, 10 Ire. 369. 
 
 301 
 
, § 346 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 having the care and government of such minor, this was held 
 to limit the power of consent to the person having over the 
 minor such care : consequently, if a minor has both a parent 
 and a guardian, the guardian only can consent.^ And under 
 the Pennsylvania statute it was held, that, if the father has 
 relinquished his parental control over his minor child, he can- 
 not maintain an action against a justice of the peace for marry- 
 ing such minor without his consent ; yet, it is no defence to 
 such an action that the father was by reason of moral degrada- 
 tion unfit to take care of such child.^ The master of an 
 apprentice, in this State, it was held, under the act of 1829-30, 
 cannot support an action against a clergyman for marrying 
 him contrary to the provisions of the act, unless the apprentice 
 is bound to him by indenture.^ 
 
 § 345. Continued — Marriage License. — A statute in New 
 Hampshire provides, that, " if any minister or justice of the 
 peace shall join any persons in marriage, without having first 
 received a certificate of the town clerk, as hereinbefore pro- 
 vided, he shall forfeit for each ofifence," &c. And it was 
 observed, that " a certificate means one certificate ; " conse- 
 quently, if the parties reside in different towns, he is protected 
 though he has a certificate from but one of the towns.* And 
 it is also held, that a person who is neither a minister nor a 
 justice of the peace cannot render himself liable under this 
 statute.^ 
 
 § 346. Filing Certificate for Record. — In Indiana, it was 
 provided as follows : " § 15. Every person who shall solem- 
 nize any marriage by virtue of the provisions of this article, 
 shall, within three months thereafter, file a certificate thereof 
 in the clerk's office of the county in which such marriage 
 was solemnized." " § 20. If any person, having solemnized 
 a marriage, shall fail or neglect to file a certificate thereof 
 in the proper clerk's office, as in this article required, he shall, 
 
 1 Vaughn v. McQueen, 9 Misso. 327. The Governor v. Rector, 10 Humph. 57. 
 
 2 Robinson v. EngUsh, 10 Casey, As to Alabama, see Gotten v. Rutledge, 
 324. See Larwill v. Kirby, 14 Ohio, 1. 23 Ala. 110. 
 
 " Zieber v. Rocs, 2 Yeates, 321. And * Wood v. Adams, 35 N. H. 32, 37. 
 see further, as to Pennsylvania, Mitchell 5 Bishop v. Marshall, 5 N. H. 407. 
 
 V. Cowgill, 4 Binn. 20 ; Minor v. Neal, As to South Carolina, see "Watson v. 
 
 1 Barr, 403 ; Buchanan v. Thorm, 1 Blaylock, 2 Mill, 351. 
 Barr, 431. And as to Tennessee, see 
 
 302 
 
CHAP. XX.] PENAL CONSEQUENCES. § 347 
 
 upon conviction thereof upon indictment in any court having 
 competent jurisdiction, be fined the sum of five dollars for 
 every month he shall continue to fail or neglect to file such 
 xsertificate, from and after the expiration of the time within 
 which he is required by this article to file the same." And it 
 was held, that an indictment under this statute would not lie 
 until a full month had run after the expiration of the three 
 months ; in other words, until four months had elapsed from 
 the time when the marriage was solemnized ; ^ also, that this 
 statute does not create a distinct offence for every month which 
 runs after the expiration of the three months.^ 
 
 § 347. Disobeying Statute — Refusing to solemnize Marriage 
 — Marrying Minor — Private Action — Indictment. — Questions 
 may arise as to the remedy, whether by indictment, by action, 
 or not at all, for an act or neglect which is claimed to be in 
 violation of law ; as, for example, where a minister of religion 
 or a justice of the peace refuses to perform a ceremony of mar- 
 riage, after the lawful steps have been taken by the parties, and 
 they have tendered him the legal fee. There have been two 
 cases in England ; which, however, do not much enlighten us. 
 The statutes, 6 & 7 Will. 4, c. 85, and 7 Will. 4 & 1 Vict. c. 
 22, made various provisions relating to marriage, and employed 
 language which at least implied that the clergyman was ex- 
 pected to marry parties when lawfully called upon to do so. 
 For example, the first section of the former of these two acts 
 provided, that " all the rules prescribed by the rubric con- 
 cerning the solemnizing of marriages shall continue to be duly 
 observed by every person in holy orders of the Church of Eng- 
 land who shall solemnize any marriage in England ; " but the 
 implication was perhaps more strongly derivable from the entire 
 language, considered as a whole. Thereupon, in one case, a 
 clergyman was sued by the party for refusing to solemnize a 
 particular marriage ; but, after verdict against the defendant, 
 the declaration was held to be bad. And the query was raised 
 whether or not this sort of Action, however well brought, is 
 maintainable. Patteson, J., observed : " I confess there ap- 
 pears to me a great difference between such a question at com- 
 
 1 Kent V. The State, 8 Blackf. 163. And see The State v. Cain, 6 Blackf. 
 
 2 The State v. Pool, 2 Ind. 227. 422. 
 
 303 
 
§ 347 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 mon law and since the marriage act ; because formerly the 
 ceremony might have been performed anywhere, so that the 
 duty could not well have been fixed upon any particular cler- 
 gyman." 1 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 indictment and the evidence taken together were held to 
 be inadequate, and the judges declined, though requested, to 
 express an opinion on the main question. The facts were, that 
 the parties merely called on the clergyman at his house, not 
 at the chapel, at nine o'clock in the evening, and, showing him 
 their certificate, requested him to appoint a time for their mar- 
 riage ; but he told them he would marry them when they had 
 expressed a desire to be confirmed, and not till then. And 
 this was held to be no proper tender of the parties for marriage, 
 or a legal demand of marriage, and the clergyman was not 
 liable to an indictment for his refusal at such time and place. 
 Moreover, the indictment^should have shown, as it did not, that 
 the man and woman were parties who might lawfully inter- 
 marry .^ One ground of the doubt in these cases was, whether 
 the question was not for the ecclesiastical courts rather than 
 the temporal, — a form of the question which would not arise 
 in this country.^ In Illinois a statute provides that a clerk 
 who wrongfully issues a marriage license to a minor shall for- 
 feit a penalty " to the use of the father ; " and this, it is held, 
 enables the father to sue for the penalty in his own name.* 
 
 1 Davis V. Black, 1 Gale & D. 432, ' See, as to the principles involved 
 440, 1 Q. B. 900. in this question, Bishop Stat. Crimes, 
 
 2 Eeg. V. James, 2 Den. C. C. 1, § 137, 138, 144; 1 Bishop Crim. Law, 
 Temp. & M. 800, 4 Cox C. C. 217, 8 5th ed. 237, 238. 
 
 Car. & K. 167, , 14 Jur. 940, 19 Law ■■* Adams v. Cutright, 53 111. 361. 
 J. N. s. M. C. 179, 1 Eng. L. & Eq. 552. 
 
 304 
 
CHAP. XXI.j CONFLICT OP MARRIAGE LAWS. § 350 
 
 CHAPTER XXI. 
 
 CONFLICT OP MARRIAGE LAWS AS TO THE INCEPTION OF 
 THE STATUS. 
 
 348, 349. Introduction. 
 
 350-370. General Doctrine. 
 
 371-389. Marriage good where celebrated, good everywhere. 
 
 390-400. Invalid where celebrated, everywhere invalid. 
 
 § 348. Di£QcuIties of the Subject — Ho-w treated here. — In the 
 entire field of our jurisprudence there are no questions more 
 embarrassing than those which pertain to what is termed the 
 conflict of laws, or private international law, as respects mar- 
 riage and divorce. The present chapter opens to us one branch 
 of the subject, that as to marriage ; the other, as to divorce, will 
 come before us in the next volume. In the present chapter, we 
 shall be obliged to proceed cautiously, and sometimes to repeat 
 our steps, in order that no really important view of the subject 
 shall escape our observation. 
 
 § 349. How the Chapter divided. — What is here to be said 
 will be divided as follows : I. The General Doctrine. Under 
 this head we shall consider, in a general way, the various 
 propositions relating to the subject ; then proceed to a minuter 
 examination of the leading specific propositions, II. That a 
 Marriage good where celebrated is good everywhere ; and, 
 III. That a Marriage invalid where celebrated is everywhere 
 invalid. 
 
 I. The General Doctrine. 
 
 § 350. Preliminary Propositions. — There are a few proposi- 
 tions which it is important we should have present in our 
 minds when proceeding with this discussion. They are, in 
 their nature, axioms, or so near to being such that no authori- 
 ties need be cited to them ; though they are, in fact, not with- 
 out their support in actual adjudication, as well as in legal 
 reason : = — 
 
 First. As matter pertaining to the internal government of 
 VOL. I. 20 305 
 
§ 350 MARBIAGE IMPEEPECTLY CONSTITUTED. [BOOK III. 
 
 a country, it is competent for the legislative power of any 
 country, unless restrained by some written constitution, and in 
 this case it is competent for the power which makes the consti- 
 tution, to command the domestic judicial tribunals to violate 
 established principles of law, and even the law of nations. 
 
 Secondly. In the absence of words express and conclusive, 
 and admitting of no other interpretation, no court will presume 
 that the legislative power intended to do a thing of this sort ; 
 and, where there is a statute in general terms, if it may have a 
 reasonable general application without being carried so far as 
 this, the court will not carry it so far. 
 
 Thirdly. Every independent nation is supreme in power 
 over its own territory ; and it can bind all persons and things 
 found therein, while they there remain, whether their occu- 
 pancy is of a temporary or permanent nature. 
 
 Fourthly. Every government has a sort of power over its 
 own subjects when abroad ; but no right-minded government 
 will attempt so to exercise this power as to interfere with the 
 rights of other governments over all persons and things occu- 
 pying, whether temporarily or permanently, any part of their 
 territory. 
 
 Fifthly. Out of these propositions grows another, namely, 
 that the statutes of a country and its common law will be 
 holden, primd facie, not to bind subjects who may be lawfully, 
 though temporarily, within the dominions of other powers. 
 
 Sixthly. Right-minded governments will be friendly to one 
 another, while at the same time each will consider that the 
 keeping of its own interests is in its own hands. Consequently, 
 if one government desires to control the action of its subjects 
 while within the territorial limits of another government, it will 
 not carry out its wish under any claim of right as against the 
 latter ; and the latter will grant the permission or not, accord- 
 ing as it judges that the granting of it will be prejudicial or 
 otherwise to its own interests. 
 
 Seventhly. Except in cases of embassadors, and the like, 
 where a particular respect is shown to the person of a foreign 
 sovereign or his deputy, no 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. 
 306 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 353 
 
 § 351. other Propositions. — In considering how the fore- 
 going propositions are to be applied in noarriage and divorce 
 law, we should take into the account two other propositions 
 equally axiomatic : — 
 
 First. Marriage is a thing of right, recognized in all coun- 
 tries, in all ages, among all people, all religions, all philosophies. "^ 
 It is, therefore, in the highest sense, a matter pertaining to the ' 
 law of nations, in distinction from the law of any particular 
 state or country. 
 
 Secondly. Divorce is a thing approved of in some countries, 
 in some ages, among some people, and by some classes of 
 opinion ; but disapproved of and disallowed in other countries 
 and times, and by other persons and opinions. Therefore 
 divorce is a local institution, a thing pertaining to the peculiar 
 laws of some localities ; but it is not of universal right or inter- 
 national 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. 
 
 § 352. Marriage and Divorce governed by Different Rules — 
 Domicil the Rule as to Divorce. — Taking up here the corollary 
 just stated, let us observe, that, according to \\;hat the author 
 deems to be the true doctrine in respect to divorce, — the doc- 
 trine generally received in the United States, though not per- 
 fectly recognized in England and in Scotland, — the courts of 
 the actual domicil of a married party are properly competent 
 to undo the matrimonial bond which binds such party, 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 in 
 one of the jurisdictions releases a party from the vinculum of the 
 marriage, the other party will indeed be released also ; but tlie 
 reason will be, not that the court had any control over him, or 
 over his status as married or single, it will be because the law 
 of his own domicil does not recognize a man as a husband who ) 
 has no longer a wife.^ 
 
 § 363. What the Rule as to Marriage — Place of Actual Celebra 
 
 1 Vol. II. § 137, 141, 142, and the chapter beginning at § 143. 
 
 307 
 
§ 35-1 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 tion. — But the corollary teaches us, that the rules as respects 
 marriage are uot all the same as those which concern divorce. 
 Does the rule of the last section apply to maririage ? To a cer- 
 tain extent it may ; but it does not, it cannot in reason, apply 
 in its full extent. In marriage — marriage is everywhere 
 favored, divorce is not — the prevailing rule is, that, whenever 
 there is such a transaction as the law of the place where it 
 occcurs pronounces to be a marriage, the parties to tiiis trans- 
 action will be holden everywhere else, as well as there, to be 
 husband and wife. And the corresponding rule is, that, if in 
 any locality a man and woman enter into what in the locality, 
 by its general law, is regarded as being a marriage, no inquiry 
 will be instituted concerning whether they were domiciled 
 there or not ; but tliis mai'riage will there be held good if they 
 are merely transient persons, equally as if they were citizens. 
 Tims where, in Kentucky, a statute prohibited certain classes 
 from intermarrying with one another, and two Kentuckians of 
 the prohibited class crossed the line into Tennessee and there 
 intermarried, there being no like provision in Tennessee, tlie 
 Kentucky court, speaking of this Tennessee marriage, observed, 
 by Marshall, C. J. : '■ As the prohibitory law of Kentucky would 
 have had no force iu Tennessee, the marriage in the latter State 
 must there haye created the lawful relation or status of mar- 
 riage, by wliich the parties were iu law and in fact lawful hus- 
 band and lawful wife to each other in the State of Tennessee, 
 so soon as the marriage was performed, and continued 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 ill every place, at least in every country where the common 
 law prevails ; because it is a part of tliat law that, being lawful 
 husband and wife at the place of marriage, they continue to be 
 so wherever they may be." ^ 
 
 § 354. Continued. — The same view wliich this Kentucky 
 opinion presents, as the one which would be taken of the mat- 
 ter in Tennessee and in other States and countries, passed 
 
 1 Stevenson v. Gray, 17 B. Monr. 193. 
 308 
 
CHAP. SXI.] CONFLTCT OP MARRIAGE LAWS. 
 
 §354 
 
 shortly afterward in England — where, however, this Kentucky 
 opinion was probably unknown — into actual judgment in 
 respect to a marriage celebrated in England between French 
 parties who had come into England to be married in evasion of 
 the law of their domicil, which required them, whether married 
 at home or abroad, to procure the consent of parents, and made 
 the marriage void wliere the consent had not been given. 
 When they had thus united themselves in marriage, in Eng- 
 land, according to the forms of the English law, they returned 
 to Prance ; and there, by a French tribunal, this marriage was 
 pronounced void. And since at the time of sentence pro- 
 nounced, the parties were domiciled in France, the English 
 court ought, had the American doctrine prevailed in England, 
 to have held this sentence of nullity to be a conclusive dissolu- 
 tion of the marriage.^ This point, however, was not taken in 
 
 ' A correspondent kindly calls my 
 attention to the foot tliat the American 
 rule, as stilted ante, § oi>'2, relates in 
 tei'ms to decrees dissolving a mai-riage 
 which was valid in its inception, while 
 the French decree here spoken of was 
 one pronouncing the marriage never to 
 have been valid, and he asks whether 
 there may not be a difference in prin- 
 ciple between the two sorts of decree. 
 The discussion of questions like this 
 belongs to our second volume ; but I 
 wiU here observe, that, in the facts of 
 most of the adjudged cases, the decree 
 has been one dissolving a valid mar- 
 riage ; still I am not aware that ain' 
 difference of principle between such a 
 deci-ee and a decree of nullity has ever 
 been suggested, or that there is any 
 thing on whicli a distinction can be 
 maintained in legal argument. The 
 reason why, if the French decree had 
 been one dissolving the marriage, it 
 ought, on the American rule, to have 
 been accepted as binding in England, 
 is, that the parties were domiciled 
 French subjects, and that by the law 
 of nations it is competent for the courts 
 of the domicil to determine the matri- 
 monial status of the parties. If a man 
 comes from another country here, we 
 receive him as married or single accord- 
 ing as he wa^ tlie one or the other in 
 
 the country, and by the laws of the 
 country, from which he emigrated. 
 And if, in such country, there has been 
 a judicial decree fixing the status, we 
 accept the decree as conclusive, and 
 it would plainly seem to be immaterial 
 whether it was in form a decree of 
 nullity or of divorce. But it may be 
 asked, why, if this is so, should not the 
 English court have held tlie marriage 
 to be null the iustiuit after its celebra- 
 tion, on beingjudicially informed that it 
 was null by the law of the domicil of the 
 pai'ties. The answer is, that the parties 
 had not then ret urned to France, and that 
 French authority had not yet acted on 
 the subject. Tlie cause was French, 
 and the English courts could not sit to 
 try such a cause, by French law, in 
 contradiction to the law of England. 
 But when afterward the French par- 
 ties went home, and there the tribunal 
 of the domicil sat upon the case and 
 determined the question of their matri- 
 monial status, this placed them and 
 their status in a new relation before the 
 English tribunal, when, at a still later 
 period, a partj' agitated the question 
 in England. Such, it is believed, is the 
 doctrine derivable both from American 
 authority and fi-om the true legal rea- 
 son of the case. 
 
 309 
 
§ 355 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK IH. 
 
 the case ; and it does not seem to have occurred to any one. 
 But the English court, being 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 (the latter being a fact deemed important there, 
 but it would not be so in the United States), held the marriage 
 to be, in England, valid. Said Cresswell, J. : " Every nation 
 has a right [this is what Prance had done by her laws] to 
 impose on its own subjects 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 
 nation to call upon any other nation equally independent to 
 surrender its own laws in order to give effect to such restric- 
 tions and prohibitions ? . . . . The great importance of 
 having some one certain rule applicable to all cases ; the diflS- 
 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 dic- 
 tum, or of even any opposite opinion of any writer of autliority 
 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 sub- 
 jects." ^ This case does not, indeed, cover all the ground, and 
 decide what would have been the relation of the parties to each 
 other, if, after being married 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. 
 
 § 355. If Valid where entered into, Valid everjrwhere. — We 
 have thus laid the foundation whereon is erected the general 
 doctrine relating to this subject. Marriage — being thus an 
 institution of international law, prevailing in all countries, 
 constituting an essential element in all earthly society, recog- 
 
 1 Simonln v. Mallac, 2 Swab. & T. 67, 83, 85. 
 310 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 356 
 
 nized alike by the law of nature and the municipal laws of 
 every people — must be everywhere deemed to be constituted 
 when it is constituted in any single locality. In otlier words, 
 whenever the tribunals of any one country hold parties to be 
 married, those of evei-y other country must hold them to be 
 married also. This doctrine is essential to the very existence 
 of marriage, viewed as an institution of international law ; 
 because, if the tribunals in one jurisdiction should declare 
 parties to be married, and those in another should declare 
 them not to be married ; if in one national domain persons 
 should be deemed to be united in pairs in a certain way, and 
 in another the pairs of the same persons should be differently 
 made up ; there would be an end of the harmony essential to 
 the existence either of international marital law or of the com- 
 fort or safety of persons going from one country to another. 
 The general principle has therefore been settled, that, in the 
 absence of any local statute compelling the courts to violate a 
 fundamental doctrine of private international law, 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.^ 
 
 § 356. Continued. — This doctrine, in its broad extent, has 
 indeed been questioned, not only by continental jurists,^ but by 
 very able English judges. Thus, Sir George Hay, in Harford 
 V. Morris, considers that a mere transient residence in a coun- 
 try, by going there one morning and coming away the next, is 
 
 1 Story Confl. Laws, § 79-81 ; Indian nation ; Patterson v. Gaines, 6 
 
 Compton r. Bearcroft, Bui. N. P. 114, 2 How. U. S. 650 ; Pliillips v. Gregg, 10 
 
 Hag. Con. 430, 443, 4 Eng. Ec. 578, 585 ; Watts, 158 ; Pornshill v. JIurray, 1 
 
 Scriinshire i\ Scrimsliire, 2 Hag. Con. Bland, 479 ; Dumaresly v. Pislily, 3 A. 
 
 895, 4 Eng. Ec. 5(52 ; Herbert I: Her- K. Mar. 368 ; Ferg. Consist. Law, 20, 
 
 bert, 2 Hag. Con. 271, 4 Eng. Ec. 534, 28, 29; 1 Burge Col. & For. Laws, 
 
 8 Phillim. 58, 1 Eng. Ec. 863 ; Sntton 184, 1S7 ; 2 Roper Hus. & Wife, by 
 
 I-. Warren, 10 Met. 451 ; Common- Jacob, 496 ; Lord Brougham, in War- 
 
 wealtli V. Hunt, 4 Cusli. 49 ; Swift v. render i'. Warrender, 9 Bligh, 89, 111 ; 
 
 Kelly, 3 Knapp, 267 ; Lacon r. Higgins, Munro v. Saunders, 6 Bligh. 468, 478, 
 
 3 Stark. 178: Morgan v. McGhee, 5 474; TheState r. P.atterson, 2 Ire. 346; 
 
 Humph. 13, and Wall v. WiUiamson, 8 Kynnaird v. Leslie, Law Eep. 1 C. P. 
 
 Ala. 48, where the rule was held to 889. 
 
 apply to marriages contracted in an ^ 2 Kent Com. 91. 
 
 311 
 
§ 357 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 not sufficient to give the local law cognizance of the marriage ; 
 but that there must be a domicil, and that under some circum- 
 stances even a domicil is not sufficient.^ And it has been 
 further attempted to weaken the force of the general proposi- 
 tion, as sustained in the earlier English authorities, by the 
 suggestion, that Scotland and places beyond the seas are 
 excepted from Lord Hardwicke's English marriage act ; - and, 
 therefore, that marriages in Scotland and beyond the seas, good 
 by the local law, were, while this act was in operation, good by 
 force of the exceptive clause in it.^ Still, whatever doubts 
 may have arisen on the subject, the doctrine in its broad terms, 
 as laid down in the last section, is established in the United 
 States ; and, until recently, it was deemed by most persons to 
 have been so also in England.* It covers both the forms by 
 which the marriage is contracted, and, subject to an exception 
 or two to be mentioned by and by, the personal capacity of the 
 parties to enter into marriage.^ 
 
 § 357. Expansion of the Foregoing Views, in the Light chiefly 
 of Juridical Reason : — 
 
 As though all Nations under one Government. — ■ If this ques- 
 " tion were not of the very highest importance in the law, we 
 might here conclude our present sub-title and proceed to a con- 
 sideration of the minor distinctions which the courts have 
 drawn. As it is, we must take a still wider survey of the gen- 
 eral doctrine. There cannot be a doubt, that, if all the world 
 were under one government, the doctrine must be — certainly 
 ought to be — in all its particulars and circumstances, without 
 any exception or qualification, what in general terms it has 
 thus been stated as being. To hold, on that supposition, a 
 
 1 Harford v. ^lorris, 2 Hag. Con. present English marriage act differs 
 423, 4 Eng. Eo. 575. See also the from this in the respect now under 
 remarks of Lord Mansfield in Robin- consideration. See Brook v. Brook, 
 son V. Bland, 2 Bur. 1077, 1079. 3 Smale & G. 481 ; s. c. on appeal, 9 
 
 2 26 Geo. 2, c. 38. This statute, H. L. Cas. 193. 
 
 after making certain regulations con- ^ Harford v. Morris, supra ; 1 Burge 
 
 cerning marriage, the non-compliance Col. & For. Laws, 192. 
 
 with most of which regulations ren- * See the cases cited in the note to 
 
 ders it void, adds, in § 18, " That noth- the last §, and particularly Compton v. 
 
 ing in this act contained shall extend Bearcroft; Story Confl. Laws, § 123 o. 
 
 to that part of Great Britain called 5 \ Burge Col. & Eor. Laws, 188, 
 
 Scotland, . . . nor to any marriages 199. 
 solemnized beyond the seas." The 
 
 312 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 358 
 
 marriage to be good in some localities and ill in others, would 
 be to degrade the institution from its high place as a thing of 
 universal and equal regard, into a mere local robber of rights 
 upon the great highway of life. And since, though there are 
 many governments, marriage is an institution common to all, 
 pertaining to the one law which pervades all nations, the result 
 ought to be the same as though there were but one nation, all 
 people being governed by one power. If in any instance there 
 is found to be a departure from this condition of things, it is 
 through the fault of one or the other of the two powers between 
 whose laws the conflict exists. And though the courts of both 
 nations may be bound by statutes which leave them no election, 
 the legislative body, if there is a conflict, did wrong in so bind- 
 ing the courts ; but, where the statutes will admit of interpre- 
 tation, the tribunals of the two nations ought so to construe 
 them as to prevent the conflict. 
 
 § 358. Adjudications in each Country should be such as, if 
 adopted by all, would prevent Conflict. — Oat of the doctrine 
 laid down in the last section we draw the following results, — 
 that the law of no country should be such, as, adopted in all 
 other countries, would leave any conflicts between the different ' 
 systems of law pervading the different countries. But, upon a 
 principle which was noticed in an earlier section of this chap- 
 ter,^ — namely, that it is for each government to control all 
 persons and things within its territorial limits, — no govern- 
 ment can demand of any other that it pursue the internal 
 policy of the former, when regulating the institution of mar- 
 riage as a domestic interest within its own territory. There- 
 fore, as the circumstances of nations differ, and as the opinions 
 of people differ, the laws of marriage, as respects what is 
 domestic in this institution of international law, will, in differ- 
 ent countries, diverge more or less from one another ; conse- 
 quently, assuming such divergence to exist, no country should 
 so frame its laws, and no court sliould so construe them, unless 
 absolute necessity compels, as, if all other nations should do 
 the same, would leave any conflicts upon this question of mar- 
 riage. For example, if England holds, that, when two tran- 
 sient French people are married in England, according to a 
 
 1 Ante, § 350. 
 
 313 
 
§ 360 MARRIAGE IMPERFECTLY" CONSTITUTED. [BOOK III. 
 
 form which would be valid were the marriage celebrated 
 between two English residents, the marriage should be ever 
 afterward esteemed good in England, though it was null by 
 the French law, — as we have seen she does,^ — then should 
 England hold also, as she was till recently supposed to, that 
 when, in like manner, two transient English people are in 
 France married in a way to make them, on the like rule, indis- 
 soluble husband and wife in France, they are likewise to be 
 ever afterward esteemed indissoluble husband and wife in 
 England ; though the marriage, celebrated in Prance, was one 
 which the general English law would not allow. 
 
 § 359. "Why Lex Loci Contractus should govern. — But is 
 it correct in legal doctrine, that, when parties are travelling 
 in a country, not permanently domiciled there, they should be 
 permitted to marry in a way contrary to the provisions of the 
 law of their domicil ? In other words, must every government, 
 before allowing a marriage to take place within its territorial 
 limits, cause inquiry to be made whether the parties are lona 
 fide domiciled citizens, and, if in a particular instance they are 
 found not to be, forbid the banns, or postpone them till a com- 
 • mission 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 mar- 
 riage entertain a secret purpose to return to their former resi- 
 dence, thereby proving that they were not domiciled where 
 they were married, must then the government hold the mar- 
 riage void, and proceed against them criminally forfornication ? 
 It is not necessary that these questions be pressed upon the 
 understanding of any intelligent reader. We all know, that 
 no government does institute such inquiries before permitting 
 a marriage, or proceed in any of the other ways thus pointed 
 out; and we know that there is not any government so 
 debased as to suffer itself to be compelled into pursuing such 
 a course, at the demand of any other government. 
 
 § 360. Continued. — We have thus, by another process of 
 reasoning than the one first instituted in this chapter, con- 
 
 1 Ante, § 354. 
 
 314 
 
CHAP. XXI.J CONFLICT OP MARRIAGE LAWS. § 36] 
 
 ducted the argument to the conclusion first drawn, namely, 
 that every government ought to accept of all marriages cele- 
 brated within the territorial limits of other governments, 
 whether they are such marriages as itself approves or not, and 
 whether between its own citizens there transiently going, or 
 between other persons, as good and lawful. There is no 
 other ground upon which conflicts can be avoided. Unless 
 this doctrine does prevail, we have the unseemly spectacle of 
 the same persons being held to be differently mated in mar- 
 riage in diiferent countries, — a spectacle abhorrent to the 
 natural feelings of pure minds, and corrupting to all minds 
 susceptible of being debased. 
 
 § 361. Continued — Further Reasons. — Various other grounds 
 have been assigned, why a marriage good by the law of the 
 place of its solemnization is good everywhere ; unless, indeed, 
 these other grounds may be deemed to be the same in other 
 forms of words as the foregoing. Let us consider them a little, 
 or, at least, multiply words a little further upon this subject. 
 Sometimes the doctrine has been referred to the general one, 
 that the validity of a contract is to be determined by the law 
 of the locality in which it is made.^ " Some writers," observes' 
 Dr. Radcliff, " say that the rule rests in the comity of nations ; 
 but Lord Brougham ^ says, it may be laid down with more ap- 
 pearance of truth that it is ex dehito justitice, the parties agree- 
 ing to have the contract formed, and its validity determined, 
 according to that law.^ And that this is the true principle, I 
 must refer to the cases cited,* and principally to Scrimshire v. 
 
 1 Ferg. Consist. Law, 28, 29 ; Poyn- there is a consent, the peculiar forms 
 ter Mar. & Div. 278. enjoined by law being only modes of 
 
 2 In Warrender v. Warrender, 2 evidencing this consent ; but that the 
 CI. & F. 488, 529, 530. In a Scotch consent is evidenced when expressed in 
 case, Mr. Commissary Boss observed, the forms recognized by the law of the 
 of the rule that the lex loci contractus place where the parties may be, at 
 governs in respect to the validity of the moment when it is mutually given, 
 contracts : " This is merely a proceed- And see post, § 366. 
 
 ing in execution of the will of the par- * Dalrymple v. Dalrymple, 2 Hag. 
 
 ties, and not the least a recognition of Con. 54, 4 Kng. Ec. 485 ; Ruding v. 
 
 the authority of the foreign law." Smith, 2 Hag. Con. 371, 4 .Eng. Ec. 
 
 Eerg. 360, 3 Eng. Ec. 480. 551 ; Middleton v. Janverin, 2 Hag. 
 
 3 The argument of Lord Brougham, Con. 437, 4 Eng. Ec. 582 ; Harford v. 
 referred to by Dr. Radcliff, seems to be, Morris, 2 Hag. Con. 423 ; 4 Eng. Ec. 
 that the essence of marriage is consent, 575; Scrimshire v. Scrimshire, 2 Hag. 
 and that there is a marriage whenever Con. 395, 4 Eng. Ec. 562. 
 
 315 
 
§ 363 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 Scrimshire, and Sir Edward Simpson's luminous judgment in 
 that case, and to Ilderton v. Ilderton,i and to Huberus. Tiiat 
 rule is eminently calculated to prevent uncertainty and confu- 
 sion, 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." ^ 
 
 § 362. Continued — Comity. — In some Massachusetts cases, 
 Parker, C. J., remarked, that comity would not be offended by 
 declaring null a contract entered into in violation of the laws 
 of the State in which the parties live,^ and that so the principle 
 applied to marriage is not necessarily applicable to contracts 
 of a different nature, — usurious, gaming, or others, — made 
 unlawful by statutes, or by the common law. Comity does not 
 oblige the government of any country to protect its subjects in 
 evading its laws by incurring abroad obligations which they 
 could not enter into at home. But the rule, he considered, 
 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.* 
 
 § 868. Continued — Rule Universal — Reason. — Returning ' 
 now to the propositions already mentioned, that marriage can- 
 not be a thing of cognizance by the international law, and that 
 the relation as one of municipal law will be immeasurably bur- 
 densome to persons who have occasion to travel or remove 
 from one State or country into another, unless a common rule 
 is established, of universal recognition in all countries, whereby 
 the courts shall determine when persons are married and when 
 they are not, — we are to inquire once more, what, in reason, 
 must be this universal rule ? And the answer which reason 
 gives, is the following : since marriage is a thing of natural 
 right, — since it is an institution everywhere to be protected 
 
 1 Uderton v. Ilderton, 2 H. Bl. 145. usually expressed in this way. Lord 
 
 2 Steele v. Braddell, Milward, 1, 20. Brougham in Warrender v. Warrender, 
 
 3 It has been with great weight of 2 CI. & F. 488, 9 Bligh, 89 ; Story Confl. 
 reasoning denied, that comity is the Laws, § 226 c, note. 
 
 true principle on which generally a * Putnam v. Putnam, 8 Pick. 433; 
 
 contract, made in one country, is en- Medway v. Needham, 16 Mass. 157. 
 
 forced in another according to the laws See also 2 Kent Com. 92 ; Poynter Mar. 
 
 of the former ; although the doctrine is & Div. 287 ; Story Confl. Laws, § 124. 
 
 316 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 364 
 
 and cherished, — since, when once it is anywhere recognized 
 as existing between two persons, it ought to be everywhere else 
 recognized, — if, in any circumstances, there has happened in 
 any country that in consequence of which the tribunals of the 
 country will hold persons, therein being, to be married, the tri- 
 bunals of every other country sliould hold them to be married 
 also. And though the persons should be found to be only 
 transiently in the country wherein the marriage takes place, 
 this rule should apply to them equally as though they were 
 domiciled there ; because the necessity of uniformity of deci- 
 sion exists as well in the one instance as in the other, and 
 because we shall gain no useful end by requiring proof of 
 domicil whenever a marriage is to be proved. 
 
 § 364. Continued — Evasion of one's o-wn Laws. — And con- 
 cerning what is called a going away by parties from the place 
 of their domicil to contract a marriage in fraud of their own 
 laws, the true answer to what is said on this point is the fol- 
 lowing : The legislation of a country can make what regulations 
 it pleases, to govern the courts of the country. If it pleases, it 
 can require the courts to recognize as valid no foreign mar- 
 riage whatever ; but this fact does not absolve them from the 
 duty to follow sound principles of jurisprudence in the absence 
 of express legislative direction/ And when a statute directs 
 how marriages shall be solemnized-, and between what persons, 
 if it is general in its terms, the courts, in the absence of some 
 express circumstance, should construe it as applying only to 
 marriages within the territorial limits of the country or State 
 over which the legislature has control^ This is a sound prin- 
 ciple of statutory interpretation ; it gdverns also other statutes 
 than matrimonial.^ It is, in the next place, competent for 
 persons to choose how, where, and when they will be married. 
 If individuals, desiring to be married, find the laws of the 
 country in which they are, forbidding the union within the 
 territorial limits of the country, — find the statute law pre- 
 scribing certain forms which they choose not to follow, or 
 defining who may enter into the relation, and they are not 
 within the definition, — yet find a law, not of statutory regu- 
 
 1 1 Bishop Crim. Law, 5th ed. § 115, note, par. 9, and the places there re- 
 ferred to. 
 
 817 
 
§ 366 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 lation, but equally a law of their own country, under which 
 they are able to superinduce the status upon themselves in 
 some other way, by going into another State or country, they 
 simply follow a proper impulse of nature and a rule of the 
 highest reason, while also they follow the law of their own 
 country, in availing themselves of their privilege of marrying 
 abroad. They do not, in any just sense of the expression, com- 
 mit a fraud upon their own laws. 
 
 § 365. Continued — Law of Nature — Local Rule. — There is 
 another aspect of this question worthy to be considered. By 
 the law of nature all persons of the needful pliysical and men- 
 tal ability may intermarry, by mere words of present consent; 
 and this law of nature is taken cognizance of by all judicial 
 tribunals the world over, with this qualification, that, where 
 there is in a particular place a local rule contrary to the law 
 of nature, the local rule supersedes natural law in the particu- 
 lar locality. But no local rule of any country extends beyond 
 the limits of the country ; therefore, as a lesser proposition 
 contained in the greater, the local law of marriage of a par- 
 ticular country does not extend beyond the territorial line. 
 The consequence is, that the courts of each country would 
 hold all marriages though by mere mutual consent, solemnized 
 in other countries, to be good, were it not for the operation of 
 another principle now to be stated. It is, that, when an agree- 
 ment between persons is entered into, not on the high seas, 
 not on unoccupied land, but within the dominions of a foreign 
 power, no evidence will be admitted by our tribunals of the 
 agreement, if it would not be recognized as binding in the 
 place in which it is made. 
 
 § 366. Continued. — In the words of Lord Brougham, as 
 employed in the case referred to by Dr. Radcliff,^ the question 
 under such circumstances is, " Did the parties intend to 
 contract marriage ? And if they did that which in the place 
 they were in is deemed a marriage, they cannot reasonably, 
 or sensibly, or safely, be considered otherwise than as intend- 
 ing a marriage contract. The laws of each nation lay down 
 the forms and solemnities, a compliance with which shall be 
 deemed the only criterion of the intention to enter into the 
 
 1 Ante, § 361. 
 318 
 
CHAP. XXI.] CONFLICT OF MAEEUGE LAWS. § 368 
 
 contract. If those laws annex certain disqualifications to 
 parties circumstanced in a particular way, or if they impose 
 certain conditions precedent on certain parties, this falls 
 exactly within the same rule ; for the presumption of law is in 
 the one case, that the parties are absolutely incapable of the 
 consent required to make the contract, and in the other case, 
 that they are incapable until they have complied with the con- 
 ditions imposed." ^ 
 
 § 367. Continued — In what Sense the Foreign Law in Force 
 here. — Therefore the ground on which the validity of a foreign 
 marriage is held to be" triable by the foreign law, is not that 
 such law has, propria vigore, any force in the domestic forum. 
 All marriages are really to be judged of by the law of the 
 country in whose tribunals they are drawn in question. This 
 principle is universal, applying even to marriages celebrated 
 in foreign countries between domiciled citizens of those coun- 
 tries, as well as to marriages between citizens of our own 
 country transiently abroad ; because every court must decide 
 all questions before it according to its own law. And in the 
 Dalrymple case Lord Stowell well observed, that the question 
 of the parties' marriage, " being entertained in an English 
 court, must be adjudicated according to the principles, of 
 Mnglish law applicable to such a case. But 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 Scot- 
 land." 2 
 
 * 
 
 § 368. Continued — Law^s extended over Subjects abroad. — 
 But we have already seen, ^ that a doctrine of international law 
 allows every government to regulate, as it chooses, the con- 
 
 ' Warrender v. Warrender, 2 CI. & of Sir Herbert Jenner Fust in Connelly 
 
 F. 488, 530, 531. o. Connelly, 2 Robertson, 201, 248, et 
 
 2 Dabymple v. Dalrymple, 2 Hag. seq., 2 Eng. L. & Eq. 570, 574 ; and of 
 
 Con. 54, 58, 4 Eng. Ec. 485, 487, Hoi- Sir E. Simpson, in Scrimshire v. Scrim- 
 
 royd, J. in Doe v. Vardill, 5 B. & C. shire, 2 Hag. Con. 395, 4 Eng. Ec. 562. 
 438, 454. And see the observations ' Ante, § 350. 
 
 319 
 
§ 369 MARRIAGE IMPERFECTLY CONSTITUTED. . [BOOK III. 
 
 duct of its subjects abroad,^ except tbat it cannot go to the 
 extent thei-ein of interfering with the rights of the people of 
 other countries. Therefore the matrimonial regulations of 
 any country may, by their express terms, be made to control 
 the citizens of the country wherever 'they are. " Every State," 
 says Mr. Burge, " retains the power of mailing a law requir- 
 ing its own subjects to conform to it, in whatever country 
 they may reside. It may, therefore, by its marriage law, 
 expressly enjoin that tlie marriage 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 ceremo- 
 nies are performed, the marriage shall be void." And he men- 
 tions Holland and Prance, whose respective governments have 
 established rules concerning the marriages of their subjects 
 abroad.^ 
 
 § 369. The Doctrine subject to Legislative Control. — While, 
 therefore, the common law makes the foreign law its own, 
 when deciding on the validity of a marriage celebrated in the 
 foreign country, this rule, like other common-law rules, is 
 subject to the legislative control. We shall even see, by and 
 by,. that it has its common-law exceptions : it may have also 
 its statutory exceptions ; as in Holland and Prance, to which 
 reference has just been made. And there are statutory ex- 
 ceptions in some of the United States ; as, in Massachusetts, 
 where its Revised Statutes,, enacted since the contrary point 
 was decided by its courts,^ followed by the General Statutes, 
 have directed that, " when any persons resident in this State, 
 shall undertake to contract a marriage contrary to tlie [pro- 
 visions of the statute], and shall, in order to evade those 
 provisions, and with an intention of returning to reside in this 
 State, go into another State or country, and there have their 
 marriage solemnized, and shall afterwards return and reside 
 here, such marriage shall be deemed void in this State." ^ 
 
 1 1 Bishop Grim. Law, 5th ed. § 109- v. Scrimshire, 2 Hag. Con. 395, 4 Eng. 
 123. Ec. 562. 
 
 2 1 Burge Col. & For. Laws, 196. 3 Post, § 371. 
 
 And see, as to Prance, Simonin v. " R. S. c. 75, § 6, re-enacted Gen. 
 Mallac, 2 Swab. & T. 67 ; Scrimshire Stats, c. 106, § 6. Por suggestions as 
 320 
 
CHAP. XXI.J CONFLICT OP MARRIAGE LAWS. § 371 
 
 § 370./ General Summary. — Perhaps, in the foregoing state- 
 ment of reasons, there is too near an approach, to repetition, 
 and less condensation than there would be but for the desire 
 of the writer not to disturb too much the former arrangement 
 of his matter, while still, in the enlarged editions, he enlargM 
 the discussion on this most vital topic. The result to which 
 we come 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 
 every thing which the race of man hold in common, and in 
 common hold dear, it is necessary there should be one universal 
 rule whereby to determine whether parties are to be deemed 
 married or not ; and that the only rule which can be adopted 
 is, to refer this question to the law of the country in which 
 they are when they enter into a mutual consent to be husband 
 and wife, which by the law of nature is a perfect marriage. If, 
 in such country, they are deemed to be married, the tribunals 
 of every other country must deem them to be so likewise, or 
 no end can be predicted to the confusion which will ensue. 
 And as a general proposition, " all nations have," in the lan- 
 guage 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 
 inconvenience can arise." ^ As a general doctrine, this proposi- 
 tion is received as true both in England and in the United 
 States. But there are everywhere acknowledged to be limits 
 to the doctrine ; what those limits are, and how the general 
 doctrine is applied, we shall see under our next sub-title. 
 
 II. That Marriage good where celebrated is good everywhere. 
 
 § 371. General Doctrine — Illustrations. — The general doc- 
 trine embraced in the heading to this sub-title, with its reasons, 
 and the authorities on, which it is based, was discussed in the 
 last sub-title. It remains for us, in the present sub-title, to 
 give the doctrine more definite form, to draw more exactly its 
 
 to the construction of this statute, see Con. 395, 417, 4 Eng. Eo. 562, 572; 
 Commonwealth v. Hunt, 4 Cush. 49. and see the entire opinion of this able 
 
 1 Scrimshire v. Scrimshire, 2 Hag. judge. 
 
 VOL. I. 21 321 
 
§ 372 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 limits, and to see what exceptions to it the law has made. 
 The Massachusetts court held, prior to the enactment of a 
 statute changing the common-law'rule,^ that, where parties who 
 ^ by a statute of the State were incapable of contracting matri- 
 mony with each other, because of one of them being a white 
 person and the other a negro, went, for the purpose of evading 
 the statute, into Rhode Island, where such connections were 
 allowed, and were there married and immediately returned, — 
 the marriage, being good in Rhode Island, was good in Massa- 
 chusetts.^ So, where a man and woman residing in Massachu- 
 setts, the laws of which State prohibited the guilty party after 
 a divorce from entering into another matrimonial connection,' 
 went, in order to evade this provision, into Connecticut, after 
 the man had been divorced in Massachusetts from his wife for 
 his adultery, and were married there and immediately returned 
 to Massachusetts, the marriage was held in the latter State to be 
 good.2 And the like was held in Kentucky, the law of which 
 State prohibited a man from marrying the widow of his de- 
 ceased uncle : such parties, while domiciled in Kentucky, went 
 into Tennessee and there had their marriage solemnized, no 
 corresponding provision existing in the Tennessee law, then 
 returned to Kentucky, and the trilmnal of this State pronounced 
 the marriage good in Kentucky.* ,,^ 
 
 § 372. Conviray V. Beazley — Polygamous Marriages. — The 
 judgment of Dr. Lushington in Conway v. Beazley is not 
 opposed to these decisions, though the reporter's note of the 
 case seems to represent it so. According to the note, " the 
 lex loci contractus, as to marriage, will not prevail where eitlier 
 of the parties is under a legal incapacity by the law of the 
 domicil." But the case itself merely decides the very plain 
 point of law, that a Scotch divorce of English parties, married 
 in England and likewise domiciled there at the time of the 
 divorce, is void ; and that, as a necessary consequence, a 
 second marriage of one of them is void ; though celebrated in 
 
 1 Ante, .§ 369. This rule has been since modified in 
 
 2 Med way v. Needham, 16 Mass. Massachusetts by statute. Ante, § 
 157. See on this point as to Louisiana 369. 
 
 law, post, § 375. * Stevenson v. Gray, 17 B. Monr. 
 
 s Putnam v. Putnam, 8 Pick. 433; 193. 
 Cambridge v. Lexington, 1 Pick. 506. 
 
 322 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 373 
 
 Scotland, and though probably the Scotch courts would hold 
 tlie divorce valid, and tiie marriage tiierefore good.^ The 
 courts of uo country in which polygamy is not tolerated can 
 allow a man to have two wives at the same time ; and, if a 
 tribunal is compelled, by the principles of jurisprudence gov- 
 erning it, to pronounce a particular divorce void, it must 
 declare a second marriage of either of the parties to be void 
 also, whether such second marriage were celebrated at home 
 or abroad.^ 
 
 § 373. Continued — Evasion of Law of Domicil. — Mr. Burge, 
 in his Commentaries on Colonial and Foreign Laws, appears 
 to regard the adjudication in Conway v. Beazley as being in 
 conflict with the Massachusetts cases ; and he deems it " the 
 more sound decision." He maintains, that the doctrine of the 
 lex loci ought not to be extended to make valid the marriage, 
 where the party retains his domicil in the country in which 
 the prohibitory law prevails, and merely resorts to another 
 country for the single purpose of evading the law of his own. 
 In this view he is sustained by Huber, perhaps also by some 
 other continental jurists, and countenanced by the case of 
 Harford v. Morris ; ^ but, the case of Conway v. Beazley failing 
 him, he, as the authorities stood when the earlier editions of 
 this book were published, is substantially without support in 
 any English adjudication, and entirely so in any American 
 one. Indeed, on the point of common-law authority, he merely 
 contends that the English cases may be explained away by 
 tlie view, before alluded to,* of the marriage act.^ Mr. Justice 
 Story considers, that, whether the argument drawn from the 
 English marriage act is tenable or not, the opposite doctrine 
 
 1 Conway v. Beazley, 3 Hag. Ec. infidel country, will probably be found 
 639, 5 Eng. Ec. 242. among all our savage tribes ; but can 
 
 2 Story Confl. Laws, § 114; Burge it be possible that the children must 
 Col. & For. Laws, 188; Lord Brougham, be illegitimate, if born of the .second 
 in Warrender v. Warrender, 9 Bligh, or other succeeding wife "! " Wall v. 
 89, 112, 2 CI. & F. 488, 532. In an Ala- Williamson, 8 Ala. 48, 51. See ante, 
 baraa case it was intimated, that per- § 221-226. 
 
 haps polygamous marriages contracted ' Harford v. Morris, 2 Hag. Con. 423, 
 
 in a country where polygamy is allowed 4 Eng. Ec. 575 ; ante, § 356. 
 
 by law would, in a Christian country, * Ante, § 356. 
 
 be deemed good on collateral proceed- * 1 Burge Col. & For. Laws, 190, 192, 
 
 ings. " A parallel case," add the court, 194, 200. 
 
 " to a Turkish or other marriage in an 
 
 323 
 
§ 374 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 to what is maintained by Mr. Burge clearly governed the 
 adjudication in Oompton v. Bearcroft ; and that the question 
 is settled, in the way indicated, both in England and America.^ 
 Of the same opinion is Chancellor Kent.^ 
 
 § 374. Evasion of Law of Domioil, continued. — A North 
 Carolina decision, however, deserves mention. There the 
 Supreme Court, overruling the superior and confirming the 
 county court, held, that where parties, one of whom having 
 been divorced for his own fault in North Carolina was therefore 
 prohibited there by law from marrying again, went into the 
 adjoining State of South Carolina, and intermarried and 
 returned, in fraud, as it was called, of the law of their domicil, 
 the marriage was null. But the marriage did not affirmatively 
 appear, as a fact in the case, to be good in South Carolina ; and 
 the judge who pronounced the opinion supposed it was not 
 good there. The statute of North Carolina had declared, that 
 the defendant, or party offending, divorced from the bond of 
 matrimony, should never marry again ; and that, in the event 
 of his marriage, he should be subject to the pains and penalties 
 provided for persons guilty of bigamy. And the court consid- 
 ered the effect of this statute to be, to leave the guilty party 
 in the same position as if there had been no divorce ; there- 
 fore, said the judge, "pro hac vice, the first marriage is still 
 subsisting." ^ In this view, the case goes no further, at the 
 utmost, than the one before mentioned of Conway v. Beazley.* 
 Neither the Tennessee decision in Dickson v. Dickson,^ nor 
 other like adjudications, wherein all such provisions of law are 
 shown to be mere penal prohibitions, leaving the party when- 
 ever he passes beyond the jurisdiction imposing them, while in 
 the nature of things the divorce of the husband is the divorce 
 also of the wife, whatever be the language of the statute on 
 the subject, since no more can the relation of wife exist with- 
 out a husband than a valley can exist without a hill, — were 
 before the North Carolina court; nor yet was any reference 
 made to the before-mentioned Massachusetts cases.^ What the 
 
 1 2 Story Confl. Laws, 3d ed. § 123 a, * Ante, § 372. 
 note. See Wadd. Dig. 236, note. 6 Dickson v. Dickson, 1 Yerg. 110. 
 
 a 2 Kent Com. 92. 6 Ante, § 371. 
 
 3 Williams v. Oates, 5 Ire. 535. 
 Compare this with ante, § 287 a. 
 
 324 
 
CHAP. SXI.J CONFLICT OP MARRIAGE LAWS. § 375 
 
 result would have been if the attention of the court had been 
 directed to these other cases and principles, we cannot know ; 
 yet passages in the report seem to indicate the opinion of the 
 judges, that marriages should be held void whenever contracted 
 in fraud of the law of the domicil. In one of the circuit 
 courts of the United States, upon a like state of facts with 
 those appearing in this North Carolina case, the divorce and 
 prohibitory law having been in New York and the marriage in. 
 New Jersey, a decision has been made, fully in accord with 
 these suggestions ; the marriage being held to be good in New 
 York.i 
 
 § 375. Exceptions to the General Doctrine. — The foregoing 
 cases assume as a fact, that the parties were not domiciled in 
 the country where the marriage was celebrated, having resorted 
 to it merely for the purpose of evading the law of their domi- 
 cil. There are other cases in which, as already mentioned,^ 
 marriages of persons in foreign countries, whether domiciled 
 in those countries or not, will not be recognized as good by the 
 courts of other countries. These cases depend on the neces- 
 sity which requires every tribunal to pay some decent regard 
 to the law of nature, and the inherent fitness of things, as well 
 as to the law of nations. vOn this principle, the court of 
 Louisiana has refused to uphold a marriage, entered into in 
 France, between a free white person and a person of color. 
 Perhaps the judge who pronounced the opinion deemed the 
 case to present the element also of the importance of enforcing 
 the statutory policy of his own State ; for he said : " Whatever 
 validity might be attached in Prance to the singular marriage 
 contract, and subsequent unnatural alliance, there celebrated 
 between the plaintiff and the deceased testatrix, it is plain, 
 that, under the facts in evidence, the courts of Louisiana can- 
 not give effect to these acts, without sanctioning an invasion of 
 the laws, and setting at naught the deliberate policy of the 
 State." ^^ -But, on broader grounds, in a slaveholding commu- 
 nity, as Louisiana then was, or any other community in which 
 the amalgamation of the black and white races by lawful mar- 
 
 1 Ponsford v. Johnson, 2 Blatch. 51. 3 Dupre v. Boulard, 10 La. An. 411, 
 
 2 Ante, § 117, 356, 372. opinion by Spofford, J. 
 
 325 
 
§ 376 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 riage is looked upon as a violation of a first law of nature, 
 alliances of this kind may be deemed too offensive to receive 
 the sanction of the tribunals. Especially also, where, accord- 
 ing to a prevailing practice, it may be deemed to be a point of 
 public policy to whiten out the black race by amalgamations 
 without marriages, nothing could be so offensive or impolitic as 
 to permit a white man to confine himself to one black woman, 
 and so restrict the sphere of his operations by matrimonial 
 bars. And .these observations point to the true reason of the 
 distinction between the decision now contemplated and the 
 Massachusetts one before stated.^ 
 
 § 376. Continued — Law of Nature — Incest — Polygamy — 
 Insanity. — And the general doctrine is, that, where the foreign 
 marriage is forbidden not only by the law of the domicil but 
 by the law of nature also, as where, for example, it is incestu- 
 ous by natural law, it is treated as void both in the courts of 
 the domicil of the parties, and in those of all other countries.^ 
 Incest and polygamy furnish the principal exceptions yet devel- 
 oped in the progress of jurisprudence, to the proposition that a 
 marriage good where it is celebrated is good everywhere.^ It 
 has also been intimated, and is no doubt true, that, if in the 
 foreign country a matrimonial connection between persons des- 
 titute of mental capacity to enter into it should be deemed 
 valid, it would not be so regarded at home.* An incestuous 
 marriage, within the meaning of the exception, is generally 
 stated to be, not every marriage forbidden on account of con- 
 sanguinity or affinity by the legislative enactments of the coun- 
 try in which its validity is drawn in question ; for a State may 
 prohibit, from motives of policy or from religious considera- 
 tions, matrimonial connections between persons related in blood 
 or affinity, not incestuous by natural law ; " but, by the law of 
 nature," says Chancellor Kent, " I understand those fit and 
 just rules of conduct, whicli the Creator has prescribed to man 
 as a dependent and social being ; and which are to be ascer- 
 tained from the deductions of right reason, though they may 
 
 1 Ante, § 371. s story Confl. Laws, § 113 a ; ante, 
 
 2 Greenwood v. Curtis, 6 Mass. 358, § 117, 372. 
 
 379 ; Sneed u. Ewing, 5 J. J. Mar. 460, * True v. Eanney, 1 Fost. N. H. 52. 
 489 ; Sutton v. Warren, 10 Jlet. 451. 
 326 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 377 
 
 be more precisely known and more explicitly declared by 
 Divine Revelation ." ^ 
 
 § 377. Incestuous Marriages, continued. ■ — Still, the question 
 is an embarrassing one, what are the marriages prohibited as 
 incestuous by the law of nature. 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 bollateral line, whether 
 of the whole or the half blood.^ Yet whatever scruples may 
 be entertained in regard to connections in the collateral line of 
 consanguinity, between relatives further removed than brother 
 and sister, the better opinion does not hold them incestuous 
 by natural law.^ Hence, as we had occasion to see in a pre- 
 vious chapter,* where in England a man married his mother's 
 sister, while such marriages were there merely voidable, not 
 void ; and the parties removed to Massachusetts, where tliey 
 are absolutely void by statute ; the marriage was held in 
 Massachusetts, on a collateral proceeding, to be good ; that is, 
 it was held to be, at least, no more than voidable, the same as in 
 England, where it was celebrated. At the same time, the parties 
 would have been subject, in England, to be pursued criminally 
 (as well as civilly) in the spiritual court, and by its sentence 
 punished for the cohabitation as being incestuous;^ but, in 
 declaring it so, the spiritual court would have followed the 
 law of England as its rule of decision, not the law of nature. 
 The statute 32 Hen. 8, c. 38, had provided, that all persons 
 might marry, who, while 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, however, speaking of a marriage between an uncle 
 and his niece, has observed : " I strongly incline to think that 
 our courts would refuse to sanction, and would avoid by sen- 
 
 1 Wightman v. Wightman, 4 Johns. Wightman v. Wightman, 4 Johns. Ch. 
 Ch. 343. 343 ; Stevenson v. Gray, 17 B. Monr. 
 
 2 Story Confl. Laws, § 114 ; 2 Kent 193. 
 
 Com. 83; 1 Surge CoL & For. Laws, * Ante, § 117; Sutton v. Warren, 
 
 188. And see Butler v. Gastrin, Gilb. supra. 
 
 Ch. 156 ; Harrison v. Burwell, Vaugh. 5 Burgess v. Burgess, 1 Hag. Con. 
 
 206, 226. 384, 393. 
 
 3 Sutton V. Warren, 10 Met. 451 ; 6 Ante, § 108. 
 
 327 
 
§ 378 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 tence, a marriage between those relatives contracted in the 
 Peninsula, under dispensation ; although, beyond all doubt, 
 such a marriage would there be valid by the lex loci contractus, 
 and incapable of being set aside by any proceeding in that 
 country." i Whatever weight is to be given to this mere 
 dictum of an eminent judge, the reader cannot fail to have 
 perceived, that he only speaks of avoiding the marriage by 
 sentence, not intimating its invahdity without sentence, — a 
 point which did not arise, and was not discussed, in the Massa- 
 chusetts case. Therefore the Massachusetts decision is not in 
 conflict even with this dictum. 
 
 § 378. Marriage with Deceased Wife's Sister — Brook V. 
 Brook. — Since the foregoing discussions were originally writ- 
 ten, and published in the earlier editions of this work, a 
 case has in England passed to judgment, affecting, if it 
 is adhered to, a considerable alteration in the law as pre- 
 viously expounded ; and, for this reason, and because the 
 adjudications of the English tribunals are, in general, re- 
 ceived with great and well merited respect in this country, 
 it is necessary to give the case a somewhat careful examina- 
 tion. A man domiciled in England married abroad a sister of 
 his deceased wife, the marriage being good in the country 
 where celebrated ; but it was held by Vice-Chancellor Sir John 
 Stuart, assisted by Mr. Justice Cresswell, afterward judge 
 ordinary of the Divorce Court, that, under the English law as 
 it stood at the time of the marriage and the decision, the mar- 
 riage could not be recognized as valid in England. That the 
 reader may see the point presented, we may mention once more 
 the statute of Hen. VIII.^ which made lawful all marriages not 
 prohibited by " God's law ; " and repeat also, that, according 
 to the construction of this statute given by the courts, the 
 marriage of a man with the sister of his deceased wife is pro- 
 hibited by " God's law," as being incestuous.^ Such a mar- 
 riage, however, was voidable only, not void, until Stat. 5 & 6 
 Will. 4, c. 54 (A. D. 1835), provided, " § 2. That all mar- 
 riages which shall hereafter be celebrated between persons 
 within the prohibited degrees of consanguinity or afSnity shall 
 
 1 Warrender v. Warrender, 9 Bligh, 2 Ante, § 108, 376. 
 
 89, 112; 8. o. 2 CI. & F. 488, 531. 3 Ante, § 316. 
 
 328 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 379 
 
 be absolutely null and void, to all intents and purposes what- 
 soever." Another (the 3d) section of the same statute 
 directed, " that nothing in this act shall be construed to extend 
 to that part of the United Kingdom called Scotland ; " but the 
 marriage in question was celebrated out of the British domin- 
 ions. A view of the law, therefore, which might have pre- 
 vailed with the judges, was, that the absolute nullity mentioned 
 in the statute of Will. IV. was intended by the legislature to 
 attach as a disqualification to the person, and so operated at 
 the place of the celebration, though beyond the dominion of 
 the English local law. And while observations in the report 
 lead us to this view, other observations occur also, creating the 
 doubt, whether these two judges would not go much further. 
 On principle, plainly the statute cited should not have in- 
 fluenced the decision ; because no statute of this kind is prop- 
 erly to have extraterritorial force, unless by its express words. 
 The royal marriage act,i binding a single family of particular 
 persons, is not in reason parallel with the one-under considera- 
 tion.^ 
 
 § 379. Continued. — The foregoing observations were made 
 upon the case as it stood in the decision of it thus mentioned. 
 Afterward the case was taken to the House of Lords, and there 
 the conclusion arrived at by the judges above named was 
 affirmed.^ It is of considerable importance to the people of 
 this country that the doctrine of this case should not be fol- 
 lowed by our tribunals. For as each State of our sisterhood 
 decides for herself, what law shall regulate the capacity of par- 
 ties to intermarry within her borders, and as marriages are 
 being constantly celebrated without much regard 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 
 binding 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 shift- 
 ings of bedding partners, will delight the eyes of strumpets 
 
 1 Post, § 388. decided by tlie Vice-Cliancellor, April 
 
 2 Brook V. Brook, 3 Smale & G. 481, 17, 1858. 
 
 3 Brook V. Brook, 9 H. L. Cas. 193. 
 329 
 
§ 381 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 and of rakes. As already observed, therefore, the case should 
 be carefully and accurately considered by us. 
 
 § 380. Continued. — Possibly we may understand this case 
 as depending on the construction of some peculiar English 
 statutes, rather than upon principles of general jurisprudence ; 
 if so, it does not much concern us. There are, in the opinions, 
 some expressions used, from which this view may perhaps be 
 derived. Yet if we look into the case independently of these 
 expressions, we shall be persuaded, 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 succession 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 passed in the reign of Henry VIII., 
 anterior to Stat. 32 Hen. 8, c. 38,^ should be construed in con- 
 nection with this one, even supposing them to be entirely 
 repealed, as they are generally understood to be ; ^ the effect 
 of which, their lordships considered, was to incorporate into 
 the law of England the principle wliich holds the marriage of a 
 man with the sister of his deceased wife to be a violation of 
 " God's law." Therefore — so the argument ran — an Eng- 
 lish judicial tribunal 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 tolerate, 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 tlie law of 
 nature. Within this principle, had the man married abroad 
 his own sister, instead of the sister of his deceased wife, tlie 
 marriage would, according to all authority, have been void in 
 England.^ 
 
 § 881. Continued. — But the diflBculty attending this view, 
 according to which the question was one of mere English local 
 
 1 Ante, § 108, 314. 3 Ante, § 377. 
 
 2 On this question of repeal, see also 
 Wing V. Taylor, 2 Swab. & T. 278. 
 
 330 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 382 
 
 law, not in any way connected with international jurisprudence, 
 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 undeserving of mention, ever after the 
 statute of 32 Hen. 8, c. 38, was passed, down to the passing, in 
 1835, of Stat. 5 & 6 Will. 4, c. 54, a period of 295 years, the courts 
 of England — all the courts, low and high — had been winking 
 at this violation of God's law and tlie law of the land, by hold- 
 ing 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 de- 
 ceased 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- 
 puted, and known to all persons familiar with the English law.^ 
 It is difl&cult 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. 
 
 § 382. Continued. — How, then, stood the question upon 
 Stat. 5 & 6 Will. 4, c. 54 ? This statute is in three sections, 
 the second and third of which have already been quoted.^ The 
 first section, with the preamble, is as follows : " 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 unrea- 
 sonable that the state and condition of the children of mar- 
 riages between persons within the prohibited degrees of affinity 
 should remain unsettled during so long a period, and it is fitting 
 
 1 Ante, § 105, 112, 320; post, § 382, 2 Ante,§ 398. 
 
 386. 
 
 ■331 
 
§ 383 MARRIAGE IMPERFECTLY CONSTITUTED. ' [BOOK III. 
 
 that all marriages which may hereafter be celebrated between 
 persons within the prohibited degrees of consanguinity or affin- 
 ity should be ipso facto void, and not merely voidable ; Be it 
 therefore enacted, &c., That all marriages which shall have 
 been celebrated before the passing of this act between persons 
 being within the prohibited degrees of affinity shall not here- 
 after be annulled for that cause by any sentence of the eccle- 
 siastical court, unless pronounced in a suit which shall be 
 depending at the time of the passing of this act : Provided, 
 that nothing hereinbefore enacted shall affect marriages between 
 persons being within the prohibited degrees of consanguinity." 
 The second section, as we have already seen, makes the mar- 
 riages of both kinds, " which shall hereafter be celebrated," 
 void, instead of voidable, as they had previously been. 
 
 § 383. Continued. — The marriage which was under consid- 
 eration in this case was one within the forbidden degrees, not 
 of consanguinity, but of affinity. And the legislature, in this 
 statute, without, we are to infer from the opinions in the case 
 under review, the fear of God before its eyes, had confirmed 
 those marriages already celebrated which, as the lords now 
 urged, were flagrant violations of God's law ; so that not 
 even in a direct proceeding for the purpose could they, though 
 celebrated in England before the passage of the statute, be set 
 aside. This was an expression of the legislative judgment on 
 one point, namely, that, " God's law " to the contrary not- 
 withstanding, if parties within the prohibited degrees of affinity 
 had entered into a form of marriage, true policy and right jus- 
 tice demanded that the marriage 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 in 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 Stat. 5 & 6 Will. 4, 
 c. 54 ; and the statute, moreover, in the true spirit of the inter- 
 national private law on this subject, distinguished these cases 
 of affinity from cases of consanguinity, making the one class of 
 marriages already celebrated valid, and leaving the other as 
 they were before the statute, voidable. Their lordships ex- 
 332 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 384 
 
 pressed approbation of some observations made by the con- 
 sulted judges, through Chief Justice Tindal, in the Sussex 
 Peerage Case, upon the interpretation of statutes. And as 
 those observations seem also to the writer of these volumes to 
 be judicious, he will quote him here : " The only rule for the 
 construction of acts of Parliament," said the Chief Justice, " is 
 that they should be construed according to the intent 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 themselvfes alone do, in such case, 
 best declare the intention of the lawgiver. But if any doubt 
 arises from the terms employed by the legislature, it has always 
 been held a safe means of collecting the intention, to call in aid 
 the ground and cause of making the statute, and to have re- 
 course to the pi'eamble, 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.' " ^ Now, if we look 
 at the whole statute of 5 & 6 Will. 4, c. 54, including the pre- 
 amble, we shall see, that, since the statute confirmed the void- 
 able marriages of parties within the prohibited degrees of 
 afi&nity, already celebrated in England, terming it " unreasona- 
 ble " to pursue any other course, and expressing no horror at 
 such a violation of .what the judges in this case of Brook v. 
 Brook deemed to be the law of God, — it conveyed thereby the 
 clear " intent " to have " God's law " disregarded, and " reason " 
 followed, whenever a question of construction, involving the 
 like principle, should thereafter arise. And indeed it seems 
 marvellous that their lordships, after having seen the whole 
 power of the kingdom, as put forth alike in legislative act and 
 judicial decision, sanction for some three hundred 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 transac- 
 tion, now turn, and strain out from the precious liquid juris- 
 prudence of the kingdom the unconsecrated foreign gnat. 
 
 § 384. Contdnued. — There is another noticeable and strange 
 thing in this case. The counsel who sought to sustain this 
 
 1 Sussex Peerage Case, 11 CI. & F. 85, 143. 
 
 333 
 
§ 384 MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK III. 
 
 marriage cited among other authorities some decisions by Amer- 
 ican courts, one of which was the Massachusetts case of Sutton 
 V. Warren.^ The facts of this case were, that a nephew and 
 aunt intermarried, in England, where they were domiciled, 
 being English people ; and, after residing there as husband and 
 wife about a year, removed to Massachusetts, where they dwelt 
 together in the same relation. The husband gave to this wife 
 liis note for $1,300, and she sued him on it at law. He set up 
 coverture in defence ; and, the marriage having taken place 
 anterior to the enactment of Stat. 5 & 6 Will. 4, c. 54, and 
 therefore being voidable and not void in England, and this be- 
 ing a collateral proceeding and not a suit to set the marriage 
 aside as incestuous, the Massachusetts court decided the ques- 
 tion precisely as it would have been decided in England had it 
 arisen there either before or after the passing of this statute, 
 the marriage having there taken place before ; namely, lield the 
 plea of coverture to be good.^ Aside from the view of the case 
 to be derived from the principles of private international law, 
 we had brought with us to this country the English municipal 
 law as it stood at the time of the original settlements of the 
 colonies ; and, according to this law, if it remained with us 
 unaltered, the court was required to decide the case as it did, 
 because thus the English courts, had the question arisen in Eng- 
 land, would have been compelled to decide it. This was plain ; 
 it was so, as we have seen, in respect of marriages celebrated 
 when this was, after Stat. 5 & 6 Will. 4, c. 64, as well as before, 
 and the law on this point is not changed in England to the 
 present day ; and, happily for the intelligence of tlie English 
 profession, there is not in all the kingdom to be found a bar- 
 rister so ignorant as not to know that, had tliis question been 
 taken before any competent English tribunal at any time within 
 the last three hundred years, down to and including the very 
 moment when tiie House of Lords was sitting Judicially upon 
 this case of Brook v. Brook, it would have been decided pre- 
 cisely as it was decided in Massachusetts. But in Massachu- 
 setts, — and this was the only point of doubt, — there was a 
 statute making marriages of this kind void. The Massachu- 
 
 1 Sutton V. Warren, 10 Met. 451. 2 Ante, § 381. 
 
 See ante, § 117, 377. 
 
 334 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 385 
 
 setts court held this statute to apply to domestic marriages 
 only, and not to marriages celebrated in England between 
 English subjects. 
 
 § 385. Continued. — But their lordships, in particular the 
 Lord Chancellor, were not pleased with this their own law, 
 when they saw it reflected back to them from over the Atlantic 
 mirror. Said the Lord Chancellor : " The decision in this case 
 was pronounced ia 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 decisions resting upon general 
 jurisprudence. The question was, whether a marriage cele- 
 brated in England on the 24th of November, 1884, between 
 Samuel Sutton and Ann Hills, was to be held to be a valid 
 marriage in the State of Massacljusetts. The parties stood to 
 each other in the relation of aunt and nephew, Ann Hills being 
 own sister to tlie 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 tliey went 
 to America, and resided as man and wife in the State of 
 Massachusetts. By the law of that State a marriage between 
 an aunt and her nepliew is prohibited, and is declared null and 
 void. Nevertheless, the Supreme Court of Massachusetts held 
 that this was [in this collateral proceeding] to be considered a 
 valid marriage in Massachusetts [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 misapprehension of tlae law of England. Justice 
 Hubbard, who delivered the judgment of the court, considered 
 that such a marriage was not contrary to the law of England. 
 [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 contracted before the 
 passing of 5 & 6 Will. 4, c. 54, it was contrary to the law of 
 
 335 
 
§ 386 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 England, and might have been set aside as incestuous [so Jus- 
 tice Hubbard said it might] , and that act gave no protection 
 whatever to a marriage within the prohibited degrees of con- 
 sanguinity ; so that, if Samuel Sutton and Anij 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 
 incest. 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 this State, as well as of the 
 State of celebration 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 adhering to the 
 principles which h^ve guided us and our fathers ever since the 
 Reformation " ! V 
 
 § 386. Gofi^ued." — To what extent these marriages, voidable 
 by reason of canonical impediment, were contrary to the law of 
 England, we have already seen in part ; but another English 
 case, referred to also in this case of Brook v. Brook, and not 
 dissented from, sheds further light on the subject. A man had 
 married his deceased wife's sister, and had children by both 
 his first and second marriage. This was before the passage of 
 Stat. 5 & 6 Will. 4, c. 54, though the decision in the case was 
 afterward. Some person interested in the inheritance proposed 
 to avoid the second marriage by proceedings in the ecclesias- 
 tical court ; and, to prevent this, a family arrangement with 
 regard to the property was made, the party interested in avoid- 
 ing the marriage agreeing not to undertake such proceedings ; 
 and this agreement was held, in the English Court of Chancery, 
 
 1 Brook V. Brook, 9 H. L. Cas. 193, 220, 221. 
 336 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 387 
 
 not to be invalid as against the policy of the law. Said Lord 
 Chancellor Sugden : " The policy of the law (I do not now 
 allude to the recent statute), 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 
 pi'oper 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 marriage, no one could afterwards dispute its validity. The 
 policy of the law, therefore, so far from declaring such con- 
 tracts void, actually provided that a period must arrive at which 
 such marriages, if not before that time disturbed, became as 
 effectual to all purposes as if there had not been originally any 
 imperfection in them." ^ According, therefore, to this very 
 sound view of the English law, when the parties to the marriage 
 which was in controversy iu the Massachusetts case of Sutton 
 V. Warren, had placed themselves beyond the jurisdiction of 
 the English ecclesiastical courts, the marriage was, by the law 
 of England, made perfect; or, in the language of this lord 
 chancellor, it " became " — that is, under the English law — 
 " as effectual to all purposes as if there had not been originally 
 any imperfection iu " it. Whether, consequently, 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 beyond 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 deducible from the decision in the 
 House of Lords. 
 
 § 387. Continued. — But does not the English law hold, that 
 marriages of the kind now in contemplation are violative of the 
 law of nature, and on this ground void, thus extending the line 
 of distinction further out among the collaterals than was inti- 
 mated in a previous section ? ^ No. If there is any difference, 
 the English law carries this matter less far among the col- 
 laterals than our own. Thus, in a very leading English case, 
 it was said of incest among collaterals : " This is not, strictly 
 
 1 Westby v. Westby, 2 Dru. & W. 2 Ante, § 377. 
 
 502, 515, 516. 
 
 VOL. I. 22 337 
 
§ 388 MAERIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 speaking, contrary to the law of nature ; for then mankind 
 eould not have been propagated from one common stock, with- 
 out a breach of the law of nature. Besides that, this very usage 
 of marrying sisters was practised by the patriarchs and good 
 men of old, without any note of blame, as Jacob married Rachel 
 and Leah ; nay, there is one case wherein 'tis expressly com- 
 manded, and that is, where the elder brother dies without issue, 
 that the younger brother must marry the deceased brother's 
 wife, to raise up seed unto his brother ; the meaning of which 
 is, that the children begotten by such second marriage were to 
 bear tlie brother's name, and take his inheritance. But though 
 incest among collaterals is not contrary to the law of nature, 
 yet 'tis contrary to the positive. law of God, which is likewise 
 established upon very strong reasons." ^ Still, it can hardly be 
 doubted that, notwithstanding these observations, had a man 
 married in England his own sister, previous to Stat. 5 & 6 
 Will. 4, c. 54, the marriage would have been held void, and 
 not merely voidable, beilig, in tlie English judicial estimation, 
 violative of a law of nature. 
 
 § 388. Continued. — This extended discussion of doctrines 
 broached or involved in the case of Brook v. Brook must be 
 brought to a close. In the House of Lords, the case did not 
 seem to be likened to the Sussex Peerage Case. In this latter 
 case, Stat. 12 Geo. 3, c. 11, § 1, had declared, " That no 
 descendant of the body of his late Majesty King George the 
 Second, male or female (other than the issue of princesses who 
 have married or may hereafter marry into foreign families), 
 shall be capable of contracting matrimony without the previous 
 consent of his Majesty, his heirs or successors, signified 
 under the Great Seal and declared in Council," &c.,"and that 
 every marriage or matrimonial contract of any such descend- 
 ant, without such consent first had and obtained, shall be null 
 and void." And it was decided that this statute created a 
 personal incapacity — the words being, " shall be [in-] capable 
 of contracting matrimony " — in the particular persons to 
 whom tills special statute applied ; which incapacity attended 
 them wherever they went, whether out of the English dominions 
 or within. Said Lord Brougham : " Parties are rendered 
 
 1 Butler V. Gastrin, Gilb. Ch. 156, 157. 
 338 
 
CHAP. XXI.] CONFLICT OF MARRIAGE LAWS. § 389 
 
 incapable of contracting matrimony, and not merely, as in the 
 case of Lord Hardwicke's act, the marriage rendered null and 
 void." 1 It was not thought that the statute of William 
 created this personal incapacity in all the subjects of the 
 crown. But if any general doctrine can be drawn from the 
 discussion it is this, — that, where the law of England forbids 
 certain classes of persons to intermarry, and provides the 
 penalty of nullity for cases of disobedience, yet English persons 
 go abroad and marry in contravention of the law, still retaining 
 their English domicil, the marriage will be held to be, in 
 England, void. Yet if the English prohibition extends only 
 to the form of solemnizing the marriage, or to such an incident 
 as the consent of parents, making the marriage void when the 
 form is not observed or the parental consent is not obtained, 
 then, should English persons go abroad and marry contrary to 
 such a law, their marriage will be good in England even 
 though they retain their English domicil.^ Still it is difficult 
 to see how the unwritten law can distinguish, where a statute 
 does not, in favor of cases in which minors disregard the com- 
 mand of Jehovah as expressed in the decalogue, " Honor thy 
 father and thy mother," and contract a marriage in violation 
 of the parental authority ; and against cases wherein a widower 
 obeying the law given to the patriarchs marries the sister of his 
 deceased wife. English jurisprudence may distinguish here ; 
 it is to be hoped that many years may pass by before the Amer- 
 ican decisions follow. If a man, who, domiciled abroad, mar- 
 ries there the sister of his deceased wife, comes with her to 
 reside in England, this English case of Brook v. Brook does 
 not hold the marriage to be, in England, void. 
 
 § 389. American Doctrme adverse to Brook V. Brook. — In 
 our own State of Kentucky, under facts similar to those 
 involved in tlie case of Brook v. Brook, the court has held, 
 as already noticed, directly the opposite doctrine to what was, 
 arrived at in the House of Lords.^ Between these *two deci- 
 sions the judicial mind, in future cases, will choose. The one 
 degrades, as far as a decision can, marriage from its high 
 
 1 Sussex Peerage Case, 11 CI. & F. ' Stevenson v. Gray, 17 B. Monr. 
 85, 151. 193; ante, §371. 
 
 2 Brook V. Brook, 9 H. L. Cas. 193. 
 
 339 
 
§ 390 3IABBIAGE IMPEBFECTLY C0S3TITDTED. [BOOK m. 
 
 place as a thing of international law, to be held and reyered 
 alike in all countries, into the subordinate place of a despised 
 object, which in one country is set up and cemented, and in 
 another country is kicked to pieces ; in the first, is then put 
 together ; in the second, is again knocked asunder ; in some 
 localities, is one thing ; in others, another thing ; and in no 
 locality is more than a mere local affair. The true rule is, 
 that, when a marriage is celebrated abroad, if it accords with 
 the local law prevailing at the place of its celebration, and with 
 the international marriage law, it is good in the place of the 
 parties' domicU ; otherwise, it is bad. And this reference to 
 the international marriage law teaches us why, when a mar- 
 riage is polygamous, or is by the law of nature incestuous, it is 
 held to be everywhere void. All nations concur in holding 
 that such an impediment nullifies the marriage, therefore the 
 law which gives it this effect is a part of the law of nations. 
 But all nations do not hold, that, when a man has ceased to 
 have a wife, he is still so connected with the blood of her who 
 was once his wife, as to be debarred the privilege of marrying 
 one who was formerly, while she dwelt in flesh and blood, one 
 of her blood relations. 
 
 in. That a Marriage invalid where celebrated is everywhere 
 
 invalid. 
 
 § 390. General Doctrine — Exceptions. — Equally true with 
 the proposition, that a marriage valid by the law of the place 
 of its celebration is valid everywhere, is, as a general rule, the 
 converse of it; namely, that a marriage invalid where it is 
 celebrated is everywhere invalid.^ This latter branch of the 
 doctrine, however, seems, at the first impression, subject to 
 more numerous exceptions than the former. And Lord Stowell 
 has said : " It is true, indeed, that English decisions have 
 established this rule, that a foreign marriage, valid by the law 
 of the place where it is celebrated, is good everywhere else ; 
 but they have not, e converso, established, that marriages of 
 
 1 See cases cited ante, § 355 ; Ferg. Ec. 485 ; Kent v. Burgess, 11 Sim. 361 ; 
 
 CoDsiit. Law, 18, 28, 29 ; Greenwood McCuUoch v. McCulloch, Ferg. 257, 3 
 
 V. Curtis, 6 ilass. 35S, 378; Dabymple Eng. Ec. 419. 
 V. Dalrymple, 2 Hag. Con. 54, 4 Eng. 
 
 340 
 
CHAP. XXI.J CONFLICT OF MARRIAGE LAWS. § 392 
 
 British subjects, not good according to the general law of the 
 place where celebrated, are universally, 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 be married 
 abroad. And even in cases where no difficulties of that 
 insuperable magnitude exist, yet, if a contrary practice has 
 been sanctioned 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 general theories, encountered as they are 
 by numerous exceptions in the practice of nations." ^ 
 
 § 391. Exceptions, continued. — In the last two periods, this 
 learned judge has mentioned nearly all the exceptions to the 
 general rule. They are. First, cases in whiclithe parties can- 
 not contract marriage in accordance with the local law where 
 they are. Secondly, those wherein, on various grounds, a 
 local law has sprung up in the foreign country, 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 the consideration of the 
 learned judge when the foregoing observations fell from him ; 
 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 
 only the first exception, the reader perceives, is a real one. 
 Under the second and third exceptions, the marriage is accord- 
 ing to a law, not indeed the general one,, recognized at the 
 place of its celebration. Let us look at these exceptions in 
 their order. 
 
 § 392. First. If parties are sojourning in a foreign country, 
 where the local law makes it impossible for them to contract a 
 
 1 Ruding V. Smith, 2 Hag. Con. 371, 4 Eng. Ec. 551, 560. See Newbury v. 
 Brunswick, 2 Vt. 151. 
 
 341 
 
§ 392 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 lawful marriage under it, they may marry in their own forms, 
 and the marriage will he recognized at home as valid : — ^ 
 
 ■Why ? Doctrine defined and Umited. — This doctrine COmes 
 from the proposition, tliat the right to marry is a natural one, 
 and no government can justly take it away from its own sub- 
 jects, much less from the subjects of a foreign power. As, 
 therefore, in these cases in which it is impossible to marry 
 according to the lex loci, the right to marry nevertheless exists, 
 the great law of necessity to which all other laws bend,^ 
 compels the courts of all nations to recognize as valid a 
 marriage not conforming, because it could not, to th^ lex loci. 
 Consequently, in the discussion of a divorce bill in the House 
 of Lords, Lord Eldon expressed a doubt concerning the validity 
 of a marriage celebrated at Rome, by a Protestant clergyman, 
 both parties being Protestants ; and said, that, where persons 
 are married abroad, it is necessary to show a celebration of the 
 marriage according to the lex loci, or to show that there was 
 no lex loci. But a Roman Catholic clergyman produced at 
 the bar of the house swore, that, at Rome, two Protestants 
 could not marry according to the lex loci, because no Catholic 
 clergyman would perform the ceremony ; whereupon the mar- 
 riage was held to be good.^ And, in the case of The Queen v. 
 Millis, Lord Campbell mentioned it as having been repeatedly 
 held, and expressed no doubt of its being the law, that, in 
 circumstances where it is utterly impossible to procure the 
 presence of a priest, there may bei a valid marriage by the 
 mere consent of the parties.* But if Protestants at Rome, for 
 instance, choose to abjui'e their religion and connect themselves 
 
 1 Rogers Ec. Law, 652 ; Poynter their own church, would be recognized 
 Mar. & Div. 289 ; Kent v. Burgees, 11 as good hy the authorities of Eome. 
 Sim. 361. Lord Campbell expressed surprise at 
 
 2 1 Bishop Crim. Law, 5th ed. 54, the eridence. But, if this be so, it only 
 346-355, 824. shows that the authorities there recog- 
 
 3 Lord Cloncurry's Case, Cruise on mze the jus gentium (see post, § 393-395) 
 Dignities, 276, Wadd. Dig. 238, note, by which the religious scruples of for- 
 This case, as I understand it, proceeded eigners, in matters of marriage, are re- 
 on the assumption that the marriage garded. See also Lock wood v. Lock- 
 would have been held null at Rome, wood, Wadd. Dig. 238 ; Hossack Confl. 
 In the Sussex Peerage Case, 11 CI. & Laws, 146, 147. And see post, § 396. 
 F. 85, 152, the evidence was, that a * Reg. v. MiUis, 10 CI. & F. 534, 786. 
 marriage at Rome between English s. p. Beamish v. Beamish, 9 H. L. Cas. 
 Protestants, according to the rites of 274. 
 
 342 
 
CHAP. XXI.] CONFLICT OF MARRIAGE LAWS. § 393 
 
 with the Catholic Church, for the sole purpose of entering 
 into a marriage, the marriage will be good, contracted thus 
 according to the local law.i The reader will observe, that the 
 doctrine of this section does not necessarily extend beyond 
 cases in which the persons, undertaking to contract a marriage 
 contrary to the law of the place, are sojourning there for some 
 purpose other than merely to contract a marriage contrary to 
 their own law. And, though the point seems not to be adjudi- 
 cated, we may presume the courts of our own country would 
 not recognize these marriages from necessity as good, if 
 entered into by persons resorting to the place of impossibility 
 for the purpose of evading the law of their domicil. Not being 
 good by any local law, they should not be deemed good by the 
 international law of marriage.^ 
 
 § 393. Secondly. If, in the place of celebration, there is a 
 special local law, differing from the general law of the place per- 
 mitting foreigners to marry in a way peculiar to themselves, and 
 making the marriage good, foreign persons who are there may 
 avail themselves of it, and their marriages, if not contrary to the 
 law of their domicil, will be good also at home : — 
 
 ' Swift V. Kelly, 3 Knapp, 257. the doctrines discussed under our first 
 2 And see post, § 398-400. There sub-title, and, as to it, the better doc- 
 was a United States case, before one trine is not as this digest would indi- 
 of the district courts, which accord- cate. Still, in principle, there is a dif- 
 ing to the United States Digest was ference between going to a place, as 
 as follows : " Citizens of a State whose upon the high seas, where no munici- 
 laws impose restrictions upon the mode pal law exists, and going to an inhab- 
 of celebrating a marriage, cannot pur- ited country governed by a foreign 
 posely go to a place beyond its juris- power, to contract a marriage, whether 
 diction, and not within the jurisdiction in what is called evasion of the parties' 
 of another State, — as, for instance, at own law, or not. If parties go upon 
 gea, — and there contract a marriage the high seas, beyond territorial juris- 
 in a manner contrary to the laws of the diction, to marry, there are two con- 
 State of their residence, and afterwards flicting theories about the marriage 
 have such marriage sustained by the which may be maintained; the one, 
 courts within it. Such an attempt to that, like colonists, they take their own 
 be joined in marriage should be deemed marriage laws with them, and must 
 a fraudulent evasion of the laws to conform to those laws, or the marriage 
 which the parties owe obedience, and will be void ; the other, that, being 
 ought not to be held valid. 1870, outside municipal law, the marriage 
 Holmes v. Holmes, 1 Abb. U. S. 525." may be celebrated according to the j«s 
 Without questioning the correctness gentium, and it will be good. To me, it 
 of this digest of the case, I will observe, appears that the one or the other of 
 that, on looking into the report, I do these theories should be applied, ac- 
 not find much of interest upon this cording to the circumstances of the par- 
 point. It in a measure relates to one of ticular case. 
 
 343 
 
§ 39± MAEEIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 Reason and Limits of the Doctrine. — Upon this subject Lord 
 Stowell, in the leading case of Ruding v. Smith,i already re- 
 ferred to,, discoursed as follows : " It is observed by the learned 
 Dr. Hyde, that there is in every country a body of inhabitants, 
 formerly much more numerous than at present (and now gen- 
 erally allowed to be of foreign extraction), having a language 
 and usages of their own, leading an erratic life, and distin- 
 guished by the different names of Egyptians, Bohemians, Zin- 
 garians, 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, distin- 
 guished by a still greater singularity of usages, who, though 
 native subjects, under the protection of the general law, are in 
 many respects governed by institutions of their own, and par- 
 ticularly in their marriages ; for, it being the practice of man- 
 kind to consecrate their marriages by religious ceremonies, 
 the differences of religion, in all countries that admit residents 
 professing religions essentially different, unavoidably introduce 
 exceptions, in that matter, to the universality of that rule 
 which makes mere domicil the constituent of an unlimited 
 subjection to the ordinary law of the country. 
 
 § 394. Continued. — " 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, exam- 
 ining 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 princi- 
 ples.^ If a rule of that law be, that the fact of a witness to 
 
 1 Ruding V. Smith, 2 Hag. Con. 371, whether it is yahd according to the law 
 
 4 Eng. Ec. 551, 557. Mr. Burge re- of England." 1 Burge Col. & For. 
 
 marks, that " there seems to he an incli- Laws, 199. 
 
 nation in the courts of England, where 2 Lindo v. Belisario, 1 Hag. Con. 
 
 the marriage of two British subjects in 216, 4 Eng. Ec. 367 ; Goldsmid v. 
 
 a foreign country is not sustainable by Bromer, 1 Hag. Con. 324, 4 Eng. Ec. 
 
 the law of that country, to ascertain 422. 
 
 344 
 
CHAP. XXI.] CONFLICT OP MAERIAGE LAWS. § 395 
 
 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 gen- 
 erally. 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 established in Holland. 
 
 § 395. Continued. — "What is the law of marriages, in all 
 foreign establishments, settled in countries professing a religion 
 essentially different ? In the English factories at Lisbon, Leg- 
 horn, Oporto, Cadiz, and in the factories in the East, Smyrna, 
 Aleppo, and others, in all of which (some of these establish- 
 ments existing by authority under treaties, and others imder 
 indulgence and toleration) marriages are regulated by the law 
 of the original country, to which they are still considered to 
 belong. An English resident at St. Petersburg does not look 
 to the ritual of the Greek Church, but to the rubric of the 
 Church of England, when he contracts 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 
 reference to Mahometan ceremonies. There is a jus gentium 
 upon this matter, — a comity, which treats with tenderness, or 
 at least with 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 tliis matter ; but practice has established the 
 principle in several instances ; and, where the practice is 
 admitted, it is entitled to acceptance and respect. It has 
 sanctioned the marriages of foreign 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 ; 
 
 1 " A register of English marriages, mitted to the registry of the Consistory- 
 celebrated at St. Petersburg, is trans- Court of London." 
 
 346 
 
§ 396 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 but the reputation which the validity of such marriages lias 
 acquired makes such a recognition by no means improbable, 
 if such a question was brought to judgment." ^ 
 
 § 396. Continued. — Therefore the cases under this head pro- 
 ceed on the express ground, that the local law, being presumed 
 to recognize the_;'MS gentium on the subject, sanctions the mar- 
 riage. And where the fact is made to appear that it does not, 
 yet provides a way of its own, there is the same necessity for 
 resident foreigners and transient persons as for. any others to 
 conform to it, in order for their marriages to be held valid in 
 their own country .^ And if merely the local law is more strict 
 and burdensome in its requirements than their own, while it 
 provides a way in which the relation can be lawfully created, 
 it must be followed, for the marriage to be good at home.^ 
 Yet intimations have been made, that, if it imposes a very un- 
 reasonable burden, as by requiring the consent of parents and 
 fixing the age of majority at thirty or forty years, this burden 
 will be equivalent to an impossibility, rendering the marriage 
 good without compliance with the requirement.* And we have 
 seen, that English subjects at Rome would not be obliged by 
 the English law to become Catholics, for the purpose of con- 
 
 1 Ruding V. Smith, 2 Hag. Con. 371, While the conquerors, the Goths, Bur- 
 384, 4 Eng. Ec. 551, 557. In Prentiss gundians, Franljs, and Lombards, main- 
 0. Tudor, 1 Hag. Con. 136, it was con- tained their own laws and usages and 
 sidered that the privilege of an embas- customs over their' own race, they 
 sador's chapel would extend only to silently or expressly allowed each of 
 cases where both parties are subjects the races over whom they had obtained 
 of the country of the embassador. See an absolute sovereignty to regulate 
 2 Roper Hus. & Wife, by Jafcob, 498 ; their own private rights and affairs 
 1 Surge Col. & For. Laws, 168. Mar- according to their own municipal juris- 
 riages in presence of a consul are not prudence. It has accordingly been re- 
 protected under this rule. Kent v. marked by a most learned and eminent 
 Burgess, 11 Sim. 361. The following jurist, that from this state of society 
 passage, from Story's Conflict of Laws, arose that condition of civil rights 
 § 2 a, will serve to illustrate this sub- denominated personal rights, or per- 
 ject : " When the Northern nations, by sonal laws, in opposition to territorial 
 their irruptions, finally succeeded in laws." 
 
 establishing themselves in the Roman ^ Lord Ellenborough, in Rex v. 
 
 empire and the dependent nations sub- Brampton, 10 East, 282, 286; Buller 
 
 jected to its sway, they seem to have v. Freeman, Amb. 301, 303 ; Roach v. 
 
 adopted, either by design or from acci- Garvan, 1 Ves. sen. 157 ; Rogers Ec. 
 
 dent or necessity, the policy of allow- Law, 2d ed. 650 ; 2 Roper Hus. & Wife, 
 
 ing the different races to live together, by Jacob, 497. 
 and to be go.verned by and to preserve ^ Rogers Ec. Law, 2d ed. 651. 
 their own separate manners, laws, and * Ruding v. Smith, 2 Hag. Con. 371, 
 
 institutions, in their mutual intercourse. 4 Eng. Ec. 551 ; ante, § 392. 
 
 346 
 
CHAP. XXI.] CONFLICT OP MARRIAGE LAWS. § 398 
 
 tracting marriage in accordance with the lex loci} But in the 
 case of Kent v. Burgess, the point being strongly urged by 
 counsel, that the marriage, celebrated in Belgium without a 
 compliance with the lex loci, should be held good because by 
 the Belgian law the parties could not marry until they had 
 been in the country six months, while at the time this marriage 
 took place they had not been there for so long a period ; and 
 because, by that law, in which the age of majority was 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 difficulty preventing the marriage from 
 being celebrated according to Belgian law, and he therefore 
 held it void. 2 
 
 § 397. How in England by Statute, &c. — In England, by a 
 statute of date subsequent to the foregoing decisions, the mar- 
 riages 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 sub- 
 ject residing at such factory ; together with all marriages 
 solemnized within the British lines, by any chaplain or other 
 person officiating under the orders of the commanding officer 
 of a British army abroad ; are, to remove all doubts, declared to 
 be valid.^ It has been held, that, under this statute, contrary 
 to the common-law rule, the marriages referred to are good 
 when but one of the parties is a British subject.* 
 
 § 398. How in this Country. — In the United States, there 
 has been some discussion of the question, whether our consuls 
 abroad can celebrate valid marriages between parties, one or 
 both of whom are American ; and the result seems to be, that, 
 as a question pertaining to the unwritten law, they can, or can- 
 not, according as the local law of the place of celebration ac- 
 cepts or rejects such marriages. There are some opinions of a 
 
 1 Ante, § 392. * Lloyd v. Petitjean, 2 Curt. Eo. 251, 
 
 2 Kent V. Burgess, 11 Sim. 361. 7 Eng. Ec. 105. See ante, § 395, 
 
 3 4 Geo. 4, c. 91. See Shelford Mar. note. 
 & Div. 78-87. 
 
 347 
 
§ 398 MARRIAGE IMPERFECTLY CONSTITUTED. [bOOK III. 
 
 late attorney-general of the United States on the subject ; ^ but 
 it came not long ago under judicial cognizance, in a Massachu- 
 setts case. There, a marriage of an American man to a Ger- 
 man ladj had been celebrated before the American consul at 
 Prankfort-on-the-Main ; and, upon a consideration of the testi- 
 mony and the law, this marriage was held to be good. Two 
 lawyers of Frankfort had been examined -on each side ; and the 
 two. legal witnesses against the marriage declared, that it would 
 not be held good at Frankfort, yet they cited no authorities to 
 the point. The two witnesses on the other side deemed that 
 the marriage would be good, and they showed that the Ameri- 
 can consul had celebrated many such marriages, and that the 
 German tribunals had sustained them. The Massachusetts 
 court decided in accordance with this latter opinion ; it being 
 sustained also by an examination of the written marriage law 
 of Frankfort, which, in its provisions, could not well be applied 
 to any but domiciled persons, leaving, therefore, the inference 
 almost inevitable that it was not intended by the maker to 
 furnish a rule for transient foreigners.^ At present, this mat- 
 ter with us is regulated by an act of Congress which provides : 
 " That all marriages in the presence of any consular officer, in 
 a foreign country, between persons who would be authorized to 
 marry if residing in the District of Columbia, shall have the 
 same force and effect, and shall be valid to all intents and pur- 
 poses, as if the said marriage had been ' solemnized within the 
 United States. And in all cases of marriage before any con- 
 sular officer, the said consular officer shall give to each of the 
 parties a certificate of such marriage, and shall also send a cer- 
 tificate thereof to the Department of State, there to be kept ; 
 which certificate shall specify the names of the parties, their 
 ages, places of birth, and residence." ^ Though, as we have 
 seen,* marriage is, within the territorial bounds of the States, 
 a thing exclusively of State cognizance, over which the national 
 government has no control, yet, outside of State limits, the 
 States are not legally known ; in foreign countries and on the 
 high seas the power of the United States, in distinction from 
 
 1 7 Opinions Att'y-Gen. 18, 342. 3 Stat. 1860, c, 179, § 31, 12 Stats. 
 
 2 Loring v. Thorndike, 5 Allen, at Large, 79. 
 
 257. 4 Ante, § 87, 88. 
 
 348 
 
CHAP. XXI.] CONFLICT OP MARRIAGE* LAWS. § 400 
 
 the power of the States, is exclusively exercised ; consequently, 
 beyond doubt, this act of Congress is within the legislative 
 jurisdiction of the United States, and is therefore a valid and 
 binding act. 
 
 § 399. Thirdly. An invading army carries with it the law of 
 the country to which il belongs ; and if, while hostilities are pro- 
 gressing, a marriage .is celebrated within its lines, it need not 
 conform to the law of the invaded country: — 
 
 Natiire and Limits of the Doctrine. — This proposition rests 
 partly on the doctrine, that colonists carry with them wherever 
 they go the law of the mother country, including herein the 
 law matrimonial ; ^ partly likewise on an exception to the doc- 
 trine, that the laws of a conquered country remain in force 
 until altered by the conquerors.^ An invading army is not 
 subject to the municipal jurisdiction of the invaded country, 
 but is more nearly in the position of colonists, proceeding under 
 the protection of their own sovereign. And a question has 
 been made, whether, after the invaded country has surrendered, 
 the subjects of the conquering country in it are bound by its 
 laws, as the original inhabitants are, until their sovereign has 
 had the opportunity to examine them, and to alter them if 
 deemed unsuited to his own subjects.^ 
 
 § 400. Continued. — It was therefore intimated, in a case 
 which never reached a decision, that the law of Prance might 
 not apply to an officer of the English army of occupation, 
 between whom and an English lady a marriage was celebrated 
 by the chaplain of the army ; because the parties were not 
 under the dominion of the French law.* And in Ruding v. 
 Smith, the marriage between two British subjects was held to 
 be good, where, after the English army had invaded a Dutch 
 province at the Cape of Good Hope, and it had surrendered, 
 but was not ceded to the British crown, and was awaiting a 
 treaty of peace, the nuptials were performed by the chaplain of 
 
 1 Lautour v. Teesdale, 8 Taunt. 830 ; v. Smith, 2 Hag. Con. 371, 4 Eng. Ec. 
 ante, § 67, 68. 551. 
 
 2 Calvin's Case, 7 Co. 1, 17 6 ; Camp- * Burn v. Earrar, 2 Hag. Con. 369, 
 bell V. Hall, Cowp. 204, 209 ; Fowler v. 4 Eng. Ec. 550. See also Ruding v. 
 Smith, 2 Cal. 39. Smith, 2 Hag. Con. 371, 4 Eng. Ec. 
 
 3 See the whole of the masterly 551. 
 judgment of Lord Stowell In Ruding 
 
 349 
 
§ 402 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 the British garrison, under a license from the commander-in- 
 chief. Some other points were discussed in this case ; such as, 
 that, the parties being minors, tlie Dutch law of minority was 
 an unreasonable one ; ^ but it evidently turned on the question 
 as above stated.^ Lord Ellenborough has well said : " I may 
 suppose, in the absence of any evidence to the contrary, that 
 the law of England, ecclesiastical and civil, was recognized by 
 the subjects of England in a place occupied by the king's 
 troops, who would impliedly carry that law with them." ^ 
 
 CHAPTER XXII. 
 
 SUGGESTIONS AS TO THE CONFLICT IN RESPECT TO PROPERTY 
 
 RIGHTS. 
 
 § 401. Purpose and Scope of the Chapter. — It does not pertain 
 to the subject of tliese volumes to discuss the property rights 
 resulting from marriage. That is done in the author's work on 
 the " Law of Married Women." In that work, also, the sub- 
 ject of tlie present chapter is more exactly considered. It is 
 proposed here simply to present such general views as are 
 necessary to supplement the discussions of the last chapter. 
 For there is a distinction, not always present to the minds of 
 lawyers, between the marriage status and the property rights 
 of the parties, as to the conflicting laws of different states and 
 countries. 
 
 § 402. Doctrine as to the Validity of the Contract — Effect. — 
 The general rule applicable to all contracts is, that they are 
 valid or not, according as the law of the place where they are 
 
 1 Ante, § 392, 396. that the extreme difficulty, not to say 
 
 2 Kuding V. Smith, supra. In Kent impossibility, of learning the local law, 
 V. Burgess, 11 Sim. 361, 376, the Vice- was Lord Stowell's strong argument 
 Chancellor remarked, that the case of for , deeming British subjects, while 
 Ruding u. Smith turned upon the diffi- under protection of the British troops, 
 culty of effecting a marriage according not bound to the general municipal 
 to the Dutch law. This wiU appear law of the foreign country. 
 
 not wholly inconsistent with the view 3 Rex v. Brampton, 10 East, 282, 288. 
 taken of it in the text, if we consider. See 1 Burge Col. & For. Laws, 169. 
 350 
 
CHAP. XXII.] CONFLICT AS TO PROPERTY RIGHTS. § 403 
 
 entered into makes them valid or yoid.^ But, in ordinary con- 
 tracts, if they are made in one place to be performed in another, 
 and by the law of the latter place they would be void while by 
 the law of the former they would be good, they are held to be, 
 in the latter place, void.^ Likewise, in all cases, though the 
 validity of the contract may be determined by a reference to 
 the law of the place where it was made, and, if it was intended 
 to be performed in such place, its interpretation also, yet the 
 mode of its enforcement and the form of the proceeding will be 
 determined by the law of the place in which the suit is brought. 
 And the contract is to be construed by reference to the law of 
 the place where it is to be performed, if sucli place appears, or, 
 if not, by the law of the place where it is made ; ^ and the law 
 is to be deemed incorporated into the contract, as a part of it.* 
 § 403. Contract as violating Local Lav? — Marriage and other 
 Contracts distinguished. — Now, it will be obvious to the reader, 
 that, where an ordinary contract is made in locality A, to be 
 performed in locality B, and a party seeks in locality B its 
 enforcement by a judgment of the court, no reason either of 
 policy or of international law exists, why, should the contract 
 be found violative of the ordinary local law prevailing in local- 
 ity B, the courts of this locality should hold it to be good. It 
 never had any effect where it was made, its performance could 
 not properly be sought there, nothing was to be done, nothing 
 was done, under it there. But in respect to marriage, as 
 regards the marital status, the reason and the fact are both 
 different. Tliere is no such thing possible as parties entering 
 into a present marriage in one place, to have their marital 
 status fixed and determined by the laws prevailing in another 
 place. Thus, if two persons pass the line dividing Vermont 
 from Massachusetts, intending to be married in Vermont, yet 
 
 1 Story Confl. Laws, § 242 et seq. ; Morales v. Marigny, 14 La. An. 855 ; 
 BUss V. Houghton, 13 N. H. 126 ; Bed- Goddin v. Shipley, 7 B. Monr. 575 ; 
 dick V. Jones, 6 Ire. 107 ; Hale v. New Broadhead v. Noyes, 9 Misso. 55 ; Dor- 
 Jersey Steam Navigation Co., 15 Conn, sey v. Hardesty, 9 Misso. 157 ; Sher- 
 539 ; Green v. Sarmiento, Pet. C. C. man v. Gassett, 4 Gilman, 521 ; Sallee 
 74 ; Willings v. Consequa, Pet. C. C. v. Chandler, 26 Misso. 124 ; Hinkley 
 801 ; Le Roy v. Crownlnshield, 2 Mason, v. Marean, 3 Mason, 88 ; Titus v. Ho- 
 151. bart, 5 Mason, 378; Beard v. Basye, 
 
 2 Andrews v. Pond, 13 Pet. 65, 78. 7 B. Monr. 133, 141 ; Wood v. MaUn, 
 
 3 Wood V. Watkinson, 17 Conn. 500, 5 Halst. 208. 
 
 509 ; Henry v. Sargeant, 13 N. H. 321 ; * Reynolds v. Hall, 1 Scam. 35. 
 
 351 
 
§ 404 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III. 
 
 to have their marriage status only in Massachusetts, when the 
 ceremony is in Vermont performed, the laws of Vermont take 
 immediate cognizance of it, and transfer them from the condi- 
 tion of unmarried people into the status in which the officiating 
 person pronounced them to be, namely, " husband and wife." 
 The rule of contracts, therefore, whereby, if a contract is made 
 in one locality to be performed in another, it is to be deemed 
 void if by the law of the place of its performance it would be 
 so, cannot apply to that contract of marriage which super- 
 induces the status. Hence the doctrines of our last chapter 
 are not divergent from the general doctrines pertaining to the 
 conflict of laws in respect to contracts. 
 
 § 404. status and Property Rights, as to conflicting Laws, dis- 
 tinguished — Rules as to Property. — But in an earlier chapter 
 we saw, " that a difference exists between the marriage status 
 and those property rights which are attendant upon and more 
 or less closely connected with it." ^ Accordingly, if parties 
 are married in one State, intending to take up their matrimo- 
 nial residence in another, their relations to each other in 
 respect to property will be held, by the courts of the State to 
 which they go, to be properly referable to the ordinary laws of 
 the latter State, being the domicil of their original intention.^ 
 And where there is an express contract that their mutual 
 relations as to property shall be governed by the law of their 
 . intended domicil, yet they afterward change their mind as to 
 removing, and remain in the place where the marriage was 
 celebrated, the courts of this locality will give effect to the 
 property contract. This point was held in a New York case, 
 where the contract was in writing, referring to the law of the 
 intended domicil as furnishing the rule by which the property 
 rights of the parties were to be regulated ; and the chancellor, 
 in giving effect to the contract, observed : " It appears to be a 
 well-settled principle of law, in relation to contracts regulating 
 the rights of property consequent upon a marriage, so far at 
 least as personal property is concerned, that, if the parties 
 marry with reference to the laws of a particular place or coun- 
 try, as their future domicil, the law of that place or country is 
 
 1 Ante, § 14. 2 Laud v. Laud, 14 Sm. & M. 99; 
 
 Carroll v. Renich, 7 Sm. & M. 798. 
 
 352 
 
CHAP. XXII.] CONFLICT AS TO PROPERTY RIGHTS. § 405 
 
 to govern, as the place where the contract is to be carried into 
 full effect. And this must certainly be the correct rule, where 
 the marriage contract in terms refers to the intended domicil 
 of the parties, as the place or country by whose laws their 
 rights under the marriage contract, in reference to property, 
 are to be determined." ^ In respect to real estate, the rights of 
 the parties to the marriage are, in countries governed by the 
 common law, and in the common-law courts, regulated by the 
 law of the place where the land lies.^ At the same time, there 
 may be circumstances in which a court of equity will enforce 
 its peculiar principles, in favor of wives, as to this class of 
 property situated in other countries, — but the limits of this 
 chapter forbid the discussion to be extended here.^ 
 
 § 405. How -where the Parties have Separate Domicils — 
 Remove to New Domicil, &c. — Where no special facts appear, 
 yet at the time of the marriage the husband and wife have 
 separate domicils, the law of the husband's domicil regulates 
 the marital rights as to movable property.* And where there 
 is a contract between the parties concerning property, executed 
 at the place of the marriage, they intending to have the matri- 
 monial domicil remain there also, yet afterward they remove into 
 another locality, the courts of this latter locality will give effect 
 to the contract.^ And where married persons remove from 
 one State to another, there being no specific contract in writing, 
 the courts of the new domicil will take into view the laws of 
 the State where they formerly resided in determining their 
 mutual rights of property.^ But it appears, that, after a 
 removal, the subsequent acquisitions of the parties will be 
 governed by the general law of the place in which they thus 
 subsequently reside, — which proposition, while it is doubtless 
 true as respects cases wherein there is no express contract, 
 may not hold good iu all instances where the . contract is 
 
 1 Le Breton v. Miles, 8 Paige, 261, v. lilies, 22 Texas, 479 ; Depas v. Mayo, 
 265, Walworth, Chancellor. And see 11 Misso. 314. 
 
 Peak V. Ligon, 10 Yerg. 469 ; Jones v. * Layne v. Pardee, 2 Swan, 232. 
 
 JEtna Insurance Co., 14 Conn. 501. * Dg Lane v. Moore, 14 How. U. S. 
 
 2 Vertner v. Humphreys, 14 Sm. & 253 ; Dougherty v. Snyder, 15 S. & R. 
 M. 130. 84. 
 
 3 See further on this point, Castro ^ Martin v. Boler, 13 La. An. 369 ; 
 
 Beard v. Basye, 7 B. Monr. 133. 
 VOL. I. 23 353 
 
§ 407 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK IIL 
 
 express, that is, where it particularly defines what shall be the 
 rule as to acquisitions.^ 
 
 § 406. Limits and Qualifications of Doctrine. — These proposi- 
 tions, which are not intended to exhaust the subject, are 
 drawn, as the reader perceives from the cases cited in the 
 notes, out of our own fountain of American decided law. Yet 
 there may be, in an individual instance, some good reason why 
 the court cannot, or should not, carry out the doctrine which 
 the general proposition would indicate. As it always follows 
 its own form of procedure,^ it may not have any form adapted 
 to the enforcement of the right which the foreign law, or the 
 foreign contract, has established ; and for this reason the right 
 may fail. Or the thing claimed may be contrary to the policy 
 of the law of the court in which the claim is attempted to be 
 maintained, and in this instance it will not be allowed.^ And 
 there may be other obstacles, in the way ; but, where these do 
 not, intervene, the right acquired in a foreign jurisdiction 
 should be enforced.* Thus, when in a Kentucky case the 
 court held that the separate right of a wife to her property, as 
 defined by the laws of Louisiana, where the parties had 
 theretofore lived, was not lost by tlieir removal to Kentucky, 
 the learned judge, Marshall, who gave the opinion, said : 
 " The laws of Louisiana cannot, it is true, be brought here to 
 create a right, nor to regulate the mode of its exercise or asser- 
 tion ; and certainly not to establish a right in contravention of 
 our laws or policy, and to the injury of our citizens. But they 
 may be brought here to establish or prove a right existing there 
 while the parties and the subject were wholly within the juris- 
 diction of that State, and it is for the laws here to determine 
 what modifications of right have been caused by the introduc- 
 tion of the parties and the subject within their jurisdiction." ^ 
 
 § 40T. General Views — Status and Property Rights compared. 
 
 1 McVey v. Holden, 15 La. An. 317 ; Matthews, 13 La. An. 197 ; Polydore 
 
 Castro V. lilies, 22 Texas, 479 ; Doss v. v. Prince, Ware, 402. 
 
 Campbell, 19 Ala. 590 ; Lyon v. Knott, ^ Ante, § 402 ; Morales v. Marigny, 
 
 26 Missis. 458 ; Avery v. Avery, 12 14 La. An. 855. 
 
 Texas, 54; Valansart's Succession, 12 3 Sanford v. Thompson, 18 Ga. 554. 
 
 La. An. 848. And see Edrington v. * Groves v. Nutt, 13 La. An. 117. 
 
 Mayfield, 5 Texas, 863 ; Matthews v. 5 Beard v. Basye, 7 B. Monr. 133, 
 
 144, 145. 
 
 354 
 
CHAP. XXII.] CONFUCT AS TO PROPERTY RIGHTS. § 407 
 
 — In like manner, when married parties go from one jurisdic- 
 tion to another, their marriage status assumes, and properly so, 
 the peculiar hue which the law of the place where they tempo- 
 rarily or permanently are, gives to it. If a husband, to employ 
 an illustration which will occur again in another chapter, mar- 
 ries and dwells with a wife in a locality where the law permits 
 him to chastise her with a rod, and he thence goes with her to 
 a place where this marital license is not allowed, he cannot use 
 the rod upon her in the latter place. In the likeness of the 
 rod stand before us here the rights of the wife, and of the 
 husband, to each other's property. Yet the courts are more 
 regardful of relations assumed under other or foreign laws 
 as to_ property, than they are as to marital chastisement. It is 
 not necessary to pursue this course of thought further ; the 
 object of this chapter being merely to impress upon the reader 
 the truth, that there is nothing in any doctrine held by any 
 court, on the subject of the conflict of laws as respects the 
 property interests of married persons, militating against the 
 views maintained in the last chapter with regard to conflicts 
 respecting the status. 
 
 355 
 
§ 409 EVIDENCE OF MARRIAGE. [BOOK IV. 
 
 BOOK IV. 
 
 HOW MARRIAGE OR LEGITIMACY IS ESTABLISHED 
 IN EVIDENCE. 
 
 CHAPTER XXIII. 
 
 PEELIMINART INQUIRY AS TO THE PROOF OP FOREIGN LAWS. 
 
 § 408. Fact and Proof distinguished. — Many suitors have 
 learned to their sorrow, that there is a distinction between fact 
 and judicial proof. Therefore this commentary on the law of 
 Marriage and Divorce could not be complete while it contained 
 no discussion of the evidence, and the presumptions whether 
 of evidence or of law, whereby marriage is shown before a 
 court of justice to exist. The question which most concerns 
 individuals, and concerns most the courts and the profession 
 of the law, is not whether this person and that are really mar- 
 ried, but whether this and that piece of testimony, or this and 
 that species of evidence, in this or that issue, legally establishes 
 the marriage. There is many a marriage held good by reason 
 of the sufficiency of the evidence, where tlie combined suffi- 
 ciency of fact and law, should all the facts truly appear, would 
 produce no such result. And, on the other hand, there are 
 marriages, good in fact and in law, the proof whereof practi- 
 cally fails before a judicial tribunal. These latter are sad 
 cases ; but of the former we may say, — " If the parties have 
 dwelt together as husband and wife, yet some kink in the law 
 prevented their being such in fact, no tears need be shed be- 
 cause kink has murdered kink, and substantial justice has been 
 done." 
 
 § 409. 'Why this Preliminary Inquiry — Scope — Doctrine that 
 Foreign Laws must be proved. — The preliminary inquiry indi- 
 356 
 
CHAP. XXIII.] PROOF OP FOREIGN LAW. § 411 
 
 cated by the title to this chapter might be omitted from these 
 volumes, if there were any other work to which the author 
 could refer as giving a satisfactory solution of the matter. The 
 general doctrine, that foreign laws are to be proved as facts in 
 our tribunals, whenever any question concerning them arises, 
 is plainly laid down in all our English and American law 
 books. 1 But the limits and the particular applications of this 
 general doctrine are things upon which the books differ in some 
 respects, and in others are indistinct. It is not the purpose of 
 the writer, in this chapter, to thread very closely the windings 
 of the subject as seen in the English and American books, or 
 to cite quite all the English cases. This question belongs to a 
 class of inquiries upon which the English judicial mind has 
 shown itself less competent than on some others. The Ameri- 
 can decisions are here pretty fully cited, but they are not 
 always satisfactory. 
 
 § 410. No Judicial Cognizance of Foreign Laws — Law of Na- 
 tions. — That a court cannot be called upon to take judicial 
 cognizance of a local foreign law is a proposition resting in the 
 clearest reason, and everywhere received as correct. But that 
 courts do take cognizance of the law of nations is likewise a 
 proposition just as plain and well established as the other. 
 These two propositions stand, on the one hand and on the 
 other, at the outer borders of this subject. Yet between these 
 two outer rocks there is much of miry way, in which the judi- 
 cial mind has been sometimes known to founder. Who, for 
 instance, can take his pen and draw upon the map of this 
 ground the line, whether it be straight or whether it be jagged, 
 at whicli international and local law just meet and kiss each 
 other, but do not blend ? 
 
 § 411. No Proof of Foreign Law in Cause depending on it — 
 
 1 Story Confl. Laws, § 637 ; Peck bart,' 2 Cranch, 187 ; Eamsay v. Mc- 
 
 V. Hibbard, 26 Vt. 698 ; Beal v. Smith, Canley, 2 Texas, 189 ; Owen v. Boyle, 
 
 14 Texas, 305; Bryant u. Kelton, 1 15 Maine, 147; Martin v. Martin, 1 
 
 Texas, 484 ; Frith v. Sprague, 14 Mass. Sm. & M. 176 ; Haven c Foster, 9 
 
 455 ; Chouteau v. Pierre, 9 Misso. 3 ; Pick. 112 ; Beauchamp v. Mudd, Har- 
 
 Hite V. Lenhart, 7 Misso. 22 ; Leak v. din, 163 ; Stevens v. Bomar, 9 Humph. 
 
 Elliott, 4 Misso. 446 ; Tyler v. Trabue, 546 ; Chumasero v. Gilbert, 24 111. 293 ; 
 
 8B. Monr. 306; Cook w. Wilson, Litt. Rape v. Heaton, 9 Wis. 328; post, 
 
 Sel. Cas. 487 ; Baptiste v. De Volun- § 418. 
 brun, 5 Har. & J. 86 ; Church v. Hub- 
 
 357 
 
§ 411 EVIDENCE OP MARRIAGE. [BOOK IT. 
 
 Presumptioii. — Again, suppose the parties do' not choose to 
 put into their case any evidence whatever of the foreign law, — 
 is there,.in such a case, any presumption which may be re- 
 sorted to respecting such law, and what presumption ? In a 
 suit upon a contract made abroad, if there is no evidence of the 
 law which prevails where the contract was made, the court 
 does not order a nonsuit ; at least, it does not generally do 
 this ; but it suffers the suit to go on, upon some kind of pre- 
 sumption respecting the foreign law. As to the nature of this 
 presumption, we have, in the reported cases, all sorts of crude 
 notions dropped, yet we have hitherto but little which may be 
 deemed satisfactory. Thus, to go for light first to our new 
 State of Iowa, it was there held, that, if a controversy arises in 
 our courts upon a contract made in another jurisdiction, the 
 matter, prima facie, is deemed to be governed by the laws, 
 statutory as*well as common, prevailing in the State where the 
 controversy arises ; " for," said Wright, C. J., " as we know 
 nothing, in the first instance, of the statutes of such foreign 
 jurisdiction, we presume them to be the same as ours, and 
 make ours the rule of decision."^ And the like doctrine has 
 been held in some of the older States ; as, for instance, in 
 South Carolina, if the writer does not misapprehend the deci- 
 sion, the court in laying down the doctrine observing : " In 
 this State, playing at faro is unlawful and punished by fine ; 
 and, if we are obliged to determine that question in utter igno- 
 rance of what the law of Georgia [where the transaction took 
 place] is, we must resolve it by our own rule, for we have no 
 other; "^ though, in most of the cases, the precise distinction 
 between a mere local statute existing in the State where the 
 
 1 Bean v. Briggs, 4 Iowa, 464, 468. it is always held that the law of an- 
 
 2 Alien V. Watson, 2 Hill, S. C. 319, other State in reference to commercial 
 322, opinion by Johnson, J. And see, transactions is deemed to he the same in 
 as tending to the like general result, the other State as it is in the State where 
 Kennick v. Chloe, 7 Misso. 197 ; Thurs- the court which hears the matter is sit- 
 ton r. Percivai, 1 Pick. 415; "Woodrow ting." Bemis w. McKenzie, 13 Fla. 553, 
 V. O'Conner, 28 Vt. 776 ; People ». 558. But here, the reader observes, the 
 Lambert, 5 Mich. 349 ; Eape v. Heaton, general terms of the proposition are 
 9 Wis. 328 ; Hill u. Grigsby, 32 Cal. qnaUfied by the words " commercial 
 55 ; FarweU u. Harris, 12 La. An. 50. transactions ; " and these, in a certain 
 In a Florida case, Kandall, C. J. ob- sense, belong to the jus gentium, of 
 served: "In the absence of any ex- which the courts (ante, § 410) take 
 press allegation or proof to the contrary, cognizance. 
 
 358 
 
CHAP. XXIII. J PROOF OP FOREIGN LAW. § 412 
 
 controversy is carried on, and the more general and broader 
 principles of the law of such State, lias not been noticed. To 
 illustrate : it was laid down in New York, by the highest tri- 
 bunal of the State, that the laws prevailing in the locality 
 where the matter is drawn into litigation furnish the prima 
 facie rule by which the decision is to be governed, in respect as 
 well to such facts as transpired abroad, as to the other facts of 
 the case; and Foot, J., in delivering the opinion, observed: 
 " It is a well-settled rule, founded on reason and authority, 
 that the lex fori, or, in other words, the laws of the 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 acquainted only with their own laws ; those of other coun- 
 tries 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 es- 
 tablished." 1 Now, if we are to take this language in its widest 
 sense, it carries with it the full doctrine apparently laid down 
 in Iowa and South Carolina. But we shall see that this doc- 
 trine is certainly incorrect ; or, at least, that it requires some 
 qualification. 
 
 § 412. Continued. — Thus, there is an earlier New York 
 case, not referred to in this one, wherein a doctrine in appear- 
 ance diametrically opposite to this was maintained, — it was 
 the very point of the case, — and there is nothing in the report 
 of the case cited in the last section intimating an intent, in the 
 court, to overrule the earlier decision. There it was held, that, 
 where a suit had been brought on a note executed in Jamaica, 
 and the defendant was shown to have been under the age of 
 twenty-one years at the time he executed it, the plaintiff could 
 still recover upon it in the absence of any proof concerning the 
 law of Jamaica, although, by the common law, which was the 
 law of New York, the fact of minority being thus shown would 
 have defeated the suit.^ This earlier decision, however, seems 
 
 I Monroe v. Douglass, 1 Seld. 447, ^ Thompson ./. Ketcham, 8 Johns. 
 
 189. And see Owen v. Boyle, 15 Maine, 
 
 359 
 
§ 413 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 not fully accordant with some other cases than the one cited in 
 the last section, wherein the New York tribunals have also held, 
 that the law of New York must, as a general proposition, gov- 
 ern in the absence of any proof of the foreign law,i a proposi- 
 tion which is sustained likewise by adjudications and by dicta 
 in various other States.^ A still later New York case decides, 
 that, if a foreign contract is claimed to be void as being usuri- 
 ous, the party so claiming must show the foreign law, and it is 
 not enough that the contract would be so held if made in New 
 York. 3 Of the like sort is the broad doctrine laid down in 
 Illinois, that, where a contract was made abroad, it will be pre- 
 sumed to have been legally made, though the same contract 
 would have been illegal if made within the jurisdiction of the 
 forum.* 
 
 § 413. Continued. — Partly in accord with the latter view, it 
 has been held in Indiana, that, where the defence set up to an 
 action was the statute of frauds, and the cause of action arose 
 in Pennsylvania, and there was no proof of the law of Penn- 
 sylvania, the court would presume the common law to be 
 in force there, and so the special defence was overruled.^ 
 •There are, indeed, many cases in various States, in which the 
 proposition that, where the matter in suit depends upon the 
 law of one of our sister States, and there is no proof of what 
 the law is ; or, where it depends upon the construction of a 
 statute proved to exist in such State, and there is no proof of 
 the way in which it is construed by the courts of the State ; the 
 
 147. As to our inter-State law, see 3 Cutler v. Wright, 22 N. Y. 472. 
 contra. Holmes v. Mallett, 1 Morris, « Smith v. Whltaker, 23 111. 367. 
 
 82. The words of Walker, {T. were : " When 
 
 1 Robinson v. Dauchy, 3 Barb. 20 ; suit is instituted on such an instrument 
 Wright V. Delafield, 23 Barb. 498. made in a foreign country, or in a 
 And see AbeU v. Douglass, 4 Denio, sister State, or in a territory of this gov- 
 305. emment, if not repugnant to our laws, 
 
 2 Legg V. Legg, 8 Mass. 99; Hemp- our courts will presume that the contract 
 hill V. Bank of Alabama, 6 Sm. & M. was made in conformity to the laws of 
 44; Fouke v. Fleming, 13 Md. 392; the place of its execution, and will hold, 
 McParland v. White, 13 La. An. 394 ; in the absence of such a plea and proof, 
 Gautt V. Gautt, 12 La. An. 673 ; Cox that the defendant admits the legality 
 V. Morrow, 14 Ark. 603 ; White v. of the contract." p. 369. 
 
 Perley, 15 Maine, 470 ; Crosby v. « Johnson v. Chambers, 12 Ind. 102. 
 
 Huston, 1 Texas, 203, which, however, See also Titus v. Scantling, 4 Blackf 
 
 compare with Ramsay v. McCanley, 2 89 ; Trimble v. Trimble, 2 Ind. 76. 
 Texas, 189. 
 
 360 
 
CHAP. XXIII.] PROOF OP FOREIGN LAW. § 414 
 
 common law, so far as it is adapted to our institutions and 
 situation, will be presumed to prevail there, — that is, as the 
 writer understands it, the common law as unaffected by stat- 
 utes.^ But this presumption is often spoken of by the judges 
 in such loose terms, or so qualified by them as applying only to 
 the particular facts of the case in controversy before the court, 
 that we cannot rely upon any thing concerning it as being cer- 
 tainly settled in any particular State. For example, in an 
 Alabama case it was said that the common law, " in the absence 
 of opposing proof, must be presumed to be the same in the 
 several States of the Union ; and the reasonableness of this 
 presumption is quite apparent when it is recollected that they 
 all derive it from a common source ; and, although the several 
 matters which the plaintiff in error offered in his defence trans- 
 pired in South Carolina, and are controlled by the lex loci, the 
 local law of that State will be presumed to be [not the un- 
 written or common law, of which the judges had just been 
 speaking, but] similar to that of this" [State] .^ And in a 
 Michigan case it was observed : " Under such circumstances, 
 it being shown that the will was made out of the State, that it 
 was found in the possession of a brother here, that it does not 
 contravene our statute, but is duly executed under our laws, 
 does not that, prima facie, entitle it to probate ? In the 
 absence of any proof we think it will be presumed, that the 
 common law prevails where the will was made." ^ 
 
 8 414. That there is some Presumption — Foreign La-w Books. 
 — The cases and points already mentioned will suffice to satisfy 
 us that, according to universal doctrine, there is a presumption 
 of some kind to be entertained concerning the foreign law where 
 no proof of it appears. And it would be contrary to analogy to 
 hold the courts to this presumption, whatever it may be, and at 
 
 1 Shepherd v. Nabors, 6 Ala. 631 ; v. Mallett, 1 Morris, 82 ; Brown v. Pratt, 
 
 EUiott V. McClelland, 17 Ala. 206, 210 ; 3 Jones Eq. 202; Crozier v. Bryant, 4 
 
 Thurston v. Percival, 1 Pick. 415, 417, Bibb, 174; Hemphill v. Bank of Ala- 
 
 where Parker, C. J. said, " If mainte- bama, 6 Sm. & M. 44 ; Walker v. 
 
 nance or champerty is mahim in se, and Walker, 41 Ala. 353 ; Blystoue u. Bur- 
 
 an ofience at common law, it is to be gett, 10 Ind. 28. 
 
 presumed, without any statute, that 2 Goodman v. GriflBn, 3 Stew. 160, 
 
 the same law is in force there ; " Hin- 164. 
 
 son V. Wall, 20 Ala. 298 ; Ellis v. White, 3 High, Appellant, 2 Doug. Mich. 
 
 25 Ala. 540 ; Eeese v. Harris, 27 Ala. 515, 529, opinion by Wing, J. 
 
 301 ; Crouch v. Hall, 15 III. 263 ; Holmes 
 
 361 
 
§ 415 EVIDENCE OF MAREIAGE. [BOOK IV. 
 
 the same time to permit tliem to look for themselves into for- 
 eign books, and from those books derive the foreign law, when 
 no proof had been introduced authenticating the books. There- 
 fore we may doubt the correctness of a Vermont . case, which 
 holds that the court, on the trial of a cause, may proceed on its 
 own knowledge of the laws of another State ; and, when it con- 
 sents to do so, the laws need not be proved ; nor will the judg- 
 ment be reversed, unless, in the higher court, it appears that 
 the decision concerning the laws was wrong.^ In fact, the 
 entire course of judicial decision in the other States is in con- 
 flict with this Vermont doctrine.^ 
 
 § 415. states deemed Foreign — Partly. — That the States 
 are, within the principles we are discussing in this chapter, to 
 be deemed foreign to one another, seems to be a point suffi- 
 ciently settled.^ At the same time, would any court hold that, 
 for instance, it could legally presume the common law to be in 
 force in our neighboring province of Canada, or in that part of 
 it which we historically know to be governed by the common 
 law ? In an Upper Canada case, the learned judge observed : 
 " In regard to us, Ireland is, like all other countries out of 
 England to which the jurisdiction of our courts does not ex- 
 tend, a foreign country. It is so in tlie 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 pre- 
 sumption to the contrary. In this respect it stands on a foot- 
 ing different from countries wholly foreign to the British 
 crown." * And to the writer it seems reasonable to hold, that, 
 though a court cannot know what particular laws prevail in a 
 particular country lying beyond its jurisdiction, yet it should 
 not be depi-ived of the right to take such cognizance of the 
 
 1 The State v. Rood, 12 Vt. 396; 522; Jones v. Laney, 2 Texas, 342; 
 s. p. Middlebury College v. Cheney, 1 Newton v. Cocke, 5 Eng. 169. 
 
 Vt. 336, 348. But see Adams v. Gay, 3 Ripple v. Ripple, 1 Rawle, 386 ; 
 
 19 Vt. 358. And see Donald v. Hewitt, Heberd v. Myers, 5 Ind. 94 ; Allen v. 
 
 33 Ala. 534, 550 ; Foster v. Taylor, 2 Watson, 2 Hill, S. C. 319. 
 
 Tenn. 191. 4 Breakey v. Breakey, 2 U. C. Q. B. 
 
 2 And see especially Drake v. Glover, 349, 355, opinion by Robinson, C. J. 
 30. Ala. 382 ; Taylor v. Runyan, 9 Iowa, 
 
 362 
 
CHAP. XXIII.] PROOF OP FOREIGN LAW. § 416 
 
 affairs of the general sovereignty under which it sits as shall 
 indicate to the judicial understanding what particular system of 
 law prevails over each particular space. This principle would 
 show the reasonableness, not only of the Upper Canada view 
 just cited,, but also of those various decisions of our own tri- 
 bunals recognizing the like doctrine as applied among our 
 States. 
 
 § 416. How in Principle — Common Justice — Technical Rules. 
 — And the result to which this train of thought conducts is, 
 that, though as between our States no judge in one State can 
 judicially lay down, in a cause pending, the law of another 
 State, not proved to him as a fact, he may, when he comes to 
 give directions to a jury in a cause wherein the law of the 
 sister State is not proved, recognize the general doctrine, that 
 those inherent principles of right and justice which pervade 
 the common law do, unless controlled by some technical rule 
 peculiar to the locality, prevail in dl our States ; and hold the 
 party who would resist a judgment founded upon such a pre- 
 sumption to the necessity of proving the technical rule. Yet 
 there are, in the common law itself, some technical rules which 
 operate, in the particular cases, in opposition to the general 
 equity which runs through it : — shall a judge presume that 
 such a technical rule exists in a sister State ? On this point, 
 the general course of our American decisions does not afford 
 much light ; yet, in reason, if the technical rule, though a rule 
 of the common law, remains unaltered by statute in the State 
 where the court sits, the judge may well presume it to remain 
 unaltered in the other State. But if, in the State where the 
 court sits, the rule has been by statute abrogated, and it is 
 plainly a mere technicality destitute of natural equity, it would 
 seem that the judge should not presume it to prevail in the sis- 
 ter State. On the other hand, to hold that some local statute 
 of one's own State has its counterpart in a sister State would 
 seem to be to create a presumption resting neither on justice nor 
 on probable fact. He who would either resist or enforce a claim 
 by reason of any thing to be found in such a statute, should 
 prove the statute. And although the doctrines of this section 
 are not laid down in terms in any case, yet, if we bring the 
 
 363 
 
§ 418 EVIDENCE OF MARRIAGE. [BOOK IV. 
 
 cases together, and then place them in the winepress of our 
 reason, this seems to be the liquid they yield. 
 
 § 417. Foreign Laws incorporated into our own. — The law of 
 England, as it stood at the time of the settlement of this coun- 
 try, is, as we all know, a part of our own law ; therefore this 
 law is not to be proved as a fact, when we are attempting to 
 ascertain the law of the State in which the tribunal sits. So, . 
 our courts, sitting in those States wherein at some previous time 
 tlie laws of Spain, of Prance, or of Mexico prevailed, and where 
 they have left their remnants or their larger proportions as an 
 inheritance to those States, do not ask to have proved before 
 them such foreign laws.^ And the same rule applies where 
 one of our States has been organized by partition from another 
 State.2 
 
 § 418. Foreign Law to be proved — Whether to Court or Jury. 
 — Subject, therefore, to such limitations and modifications as 
 are found in the foregoing Sections, the rule of our law is, that 
 he who in a court of justice presents a claim or a defence 
 involving a question of foreign law, must both aver and prove 
 the law.^ But there is a difference of opinion upon the ques- 
 tion, whether, in respect to foreign laws, as to foreign transac- 
 tions taking place in parol, the proof shall be addressed to the 
 jury, or whether it shall be given to the court, and the court 
 instruct the jury upon it, as upon domestic law. Upon this 
 point the late Judge Story seems, in his work on the Conflict 
 of Laws, to have adopted the latter view : " 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 
 
 1 Doe V. Eslava, 11 Ala. 1028 ; Chou- 2 Bibb, 238 ; Church v. Hubbart, 2 
 teau V. Pierre, 9 Misso. 3 ; Ott w. Sou- Cranch, 187 ; Hempstead v. Eeed, 6 
 lard, 9 Misso. 578. Conn. 480 ; Owen v. Boyle, 15 Maine, 
 
 2 Delano «). Jopling, 1 Litt. 117, 417. 147; Martin v. Martin, 1 Sm. & M. 
 
 3 Peck V. Hibbard, 26 Vt. 698 ; Bean 176 ; Leak v. Elliott, 4 Misso. 446 ; Bry- 
 V. Briggs, 4 Iowa, 464 ; Monroe v. Doug- ant v. Kelton, 1 Texas, 434 ; Mason v. 
 lass, 1 Seld. 447 ; Stephenson v. Ban- Wash, Breese, 16 ; Billingsley v. Dean, 
 nister, 8 Bibb, 369 ; Davis v. Curry, 11 Ind. 331 ; ante, § 409. 
 
 364 
 
CHAP. XXIII.] PROOF OF FOREIGN LAW. § 419 
 
 evidence of the laws of a foreign country ; and, when evidence 
 is given of those laws, the court are to judge of their applicabil- 
 ity, when proved, to the case in hand." i And this view has 
 likewise the sanction of considerable other authority.^ A 
 learned North Carolina judge observed : " 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, neces- 
 sarily 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 jury, there is no neces- 
 sity 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 document, 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, there are authori- 
 ties which seem to hold, that the proof throughout is for the 
 jury ; and still others which appear to distribute the proof 
 between them and the judge.* Yet all admit, that, in these 
 cases as in others, the judge shall determine what evidence is 
 to be submitted to the jury.^ 
 
 § 419. Proof to Court or Jury, continued. — The following 
 considerations will show, that the view which refers the proof 
 of the foreign law to the court and not to the jury is the true 
 one : In every instance wherein testimony of any kind is brought 
 to the consideration of a jury, the judge must decide, as a pre- 
 liminary question, whether the testimony is admissible or not. 
 And in every instance in which the effect of the testimony, as 
 establishing or failing to establish a fact alleged, is agreed, the 
 judge decides what is its legal consequence in the case. These 
 observations are made with respect to civil causes ; in criminal 
 
 1 Story Confl. Laws, § 638. * Holman v. King, 7 Met. 384 ; Moore 
 
 2 Ferguson w. Clifford, 37 N. H. 86; v. Gwynn, 5 Ire. 187; Ingraham v. 
 Pickard v. Bailey, 6 Post. N. H. 152 ; Hart, 11 Ohio, 255 ; De Sobry u. Be 
 Territt v. Woodruff, 19 Vt. 182 ; Mid- Laistre, 2 Har. & J. 191, 219, 229, 230 ; 
 dlebury College v. Cheney, 1 Vt. 336 ; Charlotte v. Chouteau, 25 Misso. 465 ; 
 Alexander v. Torrence, 6 Jones, N. C. Loring v. Thorndike, 5 Allen, 257. 
 260 ; Wilson v. Carson, 12 Md. 54. * De Sobry v. De Laistre, supra. 
 
 SThe State v. Jackson, 2 Dev. 563, And see Pickard v. Bailey, supra. 
 566, EuflSn, J. 
 
 365 
 
§ 420 EVIDENCE OF MAEEIAGE. [BOOK IV. 
 
 ones, there is — according to the opinions of some persons, 
 which opinions are controverted by others, and this is not the 
 place to consider which class of opinion is correct — a right or 
 duty in the jury to judge to some extent of the law ; ^ but, in 
 all cases, criminal or civil, it is matter of law, not of fact, 
 whether a particular piece of testimony is receivable in evi- 
 dence ; and, when it is agreed what the testimony proves, the 
 effect of it upon the issue is also a question of law. Thei'efore 
 it must be true, that, according to every class of opinion, where 
 there is no discrepancy in the evidence given of a foreign law, 
 — no clashing of witness with witness, — no question as to the 
 veracity or impartiality of a particular witness, — the court 
 must decide what, as matter of domestic law, shall be the effect, 
 on the issue, of the foreign law thus proved. And if a foreign 
 statute is to be construed, the work of construing it belongs, 
 according to every opinion which can be entertained on the 
 subject, as much, at least, to the department of law, in distinc- 
 tion from the department of fact, as would be the work of con- 
 struing a written instrument, which had been proved in the 
 case ; for, indeed, the statute is itself a written instrument. 
 But where a contract, for example, lies in parol, and there is no 
 writing, it is just as much the duty of the court to construe the 
 contract, provided its terms are plain beyond dispute, as when 
 it is in writing ; and, by analogy, if the foreign law be a mere 
 common or unwritten law, and its terms are proved beyond 
 dispute, the court must decide upon its construction, and upon 
 its applicability to the particular issue. ^ The only question 
 remaining, therefore, is, whether the court or the jury shall 
 pass upon the veracity, reliability, and accuracy of the wit- 
 nesses who prove the foreign law, and the weight to be given 
 to the different classes of evidence should there be a conflict 
 therein. 
 
 § 420. Continued. — Where the law is a written one, and 
 the proof of it is by the seal of a foreign nation, there is noth- 
 ing — a further point admitted — for the jury ; all this is for 
 the court. And the reason is, that, in the language of the late 
 Professor Greenleaf : " The usual and appropriate symbols of 
 
 1 1 Bishop Crim. Proced. 2d ed. 2 See post, § 429. 
 
 § 984-988. 
 
 366 
 
CHAP. ZXIII.] PROOF OP FOREIGN LAW. § 421 
 
 nationality and sovereignty are the national flag and seal. 
 Every sovereign therefore recognizes, and, of course, the public 
 tribunals and functionaries of every nation take notice of, the 
 existence and titles of all the other sovereign powers in the 
 civilized world, their respective flags, and tlieir seals of state. 
 Public acts, decrees, and judgments, exemplified under this 
 seal, are received as true and genuine, it being the highest evi- 
 dence of their character." ^ 
 
 § 421. Contiiiued — (Proof of Private Statutes, &c., in the 
 Note). — Still the question remains, — Must not the jury 
 pass upon the credibility of the witnesses introduced to prove 
 the unwritten foreign law, and upon other things of a kindred 
 nature ? On this question, it is conceded by the writer, there 
 is fair ground for differences of opinion. But the reason why 
 the author would answer this question in the negative is, that 
 the foreign law, although it must be proved, is still law, just as 
 much as is the domestic. The court, in contemplation of the 
 domestic law, is presumed conclusively to know this law, but 
 not to know the foreign law ; therefore the domestic law need 
 not be proved, the foreign law must be. But the legal truth, 
 that the judge knows the one without having it proved before 
 him, and does not so know the other, does not change the 
 nature of the thing ; the thing, in each case, is law. It is 
 matter of fact that a particular law is, or is not, a law prevail- 
 ing in the country where the court sits ; and it is the same 
 where the alleged law is a foreign one. The existence of a 
 law is always a thing of fact ; but it is no more so where the 
 law is foreign, than where it is domestic. Neither is it any 
 strange principle that a judge should pass upon a fact; all 
 judges, in all trials, are continually passing upon facts, and no 
 trial could proceed a step unless the presiding person on the 
 bench did this. Judges and jurors alike deal with facts ; the 
 former, with facts pertaining to the law ; the latter, with facts 
 pertaining to the question of what the parties respectively did, 
 to bring one or the other of them within the allegations found 
 in the record. And there are various circumstances besides 
 those now in contemplation, in which such a question as 
 
 1 1 Greenl. Ev. § 4. 
 
 367 
 
§422 
 
 EVIDENCE OP MARRIAGE. 
 
 [book IV. 
 
 the credibility of a witness is for tlie judge and not for the 
 
 1 1. The matter discussed in this 
 and the accompanying sections is so 
 important that I cannot forbear add- 
 ing, in a note, some considerations 
 which the course of the argument in 
 the text seemed not to make appropri- 
 ate there. It is neither a new thing in 
 our jurisprudence, nor a thing confined 
 to such foreign laws as are permitted to 
 have force in our tribunals, that there 
 should be a law whereof the court 
 could not take cognizance until it was 
 pleaded by the party relying upon it, 
 and, if denied by the other party, estab- 
 lished also in proof Thus, the rule is 
 familiar, that the courts will take j adi- 
 cial cognizance of a public statute, yet 
 not of a private ; and that the private 
 statute must be pleaded by the party 
 claiming a benefit imder it, and 
 proved. 
 
 2. There is, however, no other dif- 
 ference than this and such other inci- 
 dentals as necessarily grow out of this, 
 between a public and a private statute ; 
 and the proof of a private statute is not 
 addressed to the jury but to the judge. 
 Thus, in The Prince's Case, 8 Co. 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 nitl tiel record; for of such acts 
 the judges ought to take notice : but, 
 if it be misrecited, 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 notice, 
 that the private statute is a matter per- 
 taining to the kind of fact whereof the 
 jury takes cognizance, instead of the 
 judge, butj 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 consumed, the 
 judges, either by the printed copy, or 
 by the record in which it was pleaded, 
 or by other means, may inform them- 
 selves of it." 
 
 368 
 
 3. Where a private statute is pleaded 
 by a party, if the opposite party would 
 deny the existence of the statute, his 
 proper plea is nul tiel record, and the 
 issue on this plea 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 
 private statute be pleaded, nul tiel record 
 may be replied ; but, if the exemplifi- 
 cation of a private st9,tute under the 
 great seal be pleaded [a case where the 
 pleading carries with itself the conclu- 
 sive record proof J, nul tiel record cannot 
 be replied." Statute, L. 2. And see, 
 on this question, Mr. Hargrave's note 
 to Co. Lit. 98 b. 
 
 4. There are perhaps circumstances 
 wherein a private statute, like many 
 other things which ordinarily ought 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 evidence ; and, 
 in each reported case, there may be an 
 indeflniteness in the report, and perhaps 
 also there may have been the same in 
 the minds of the judges and of counsel, 
 as to whether the evidence was really 
 addressed to the jury, or to the judge, 
 who was to instruct the jury upon it 
 as a question of law. In Anonymous, 
 2 Salk. 566, where the defendant had 
 pleaded a private statute, and the plain- 
 tiff had replied nul tiel record, and the 
 defendant had brought in the printed 
 act to support his plea. Holt, C. J. de- 
 clined to accept the evidence, and ob- 
 served : '■ An act printed by the king's 
 printers is always allowed good evi- 
 dence of the act (o a jury ; but [in this 
 matter for the court] was never allowed 
 to be a record yet." I have not found 
 any case in the books where a private 
 statute was submitted to a jury, in 
 distinction from the judge, in any way 
 differing from that in which a public 
 statute might likewise have been sub- 
 mitted. Possibly I may have over- 
 looked some case, though my re- 
 searches have extended much further 
 
CHAP. XXIII.] 
 
 PROOF OP FOREIGN LAW. 
 
 §422 
 
 § 422. Law of Nations — Foreign 
 Laws recognized by our Government. 
 
 Flag, Seals, &o. — Foreign 
 — We have already seen,i 
 
 than to the authorities cited In this 
 note. And wherever a private statute 
 has been pleaded and proven, or other- 
 wise admitted before a tribunal, the 
 judges have dealt with it precisely as 
 they do with a public one. For an 
 example illustrating tlvis proposition 
 see Rex v. Shaw, 12 East, 479. And 
 there are many other cases. 
 
 5. A custom of a mere local nature, 
 introduced sometimes to establish a 
 right, is a thing different from a pri- 
 vate statute, — it is not a law, — and 
 it is generally triable before a jury the 
 same as are other ordinary facts. But 
 there are, in England, customs which 
 are for the court. 1 Bl. Com. 86. 
 
 6. Now, in strictness, no judicial 
 tribunal ever decides any question by 
 any foreign law ; an English court 
 cannot administer the French law, our 
 courts cannot administer the English. 
 But there are circumstances in which, 
 as applied to the particular case, the 
 domestic law makes the foreign law 
 its own. Such a case is analogous to 
 one which is governed by a private 
 statute. Though the foreign law may 
 not be burned like a parliament roll; 
 and the reason why, in these excep- 
 tional cases where the rights of Hmited 
 numbers of individuals only are con- 
 cerned, the courts should not be re- 
 quired to take judicial notice of the 
 foreign law, may not be, in form, the 
 same which controls the like matter as 
 regards private statutes ; yet, in sub- 
 stance, the two cases stand on the same 
 ground. It would be unreasonable to 
 require the judges to carry in their 
 minds laws which pertain only to some 
 particular individuals, not to the com- 
 munity at large ; besides, if this were 
 demanded, they would be so burdened 
 with what may be termed the care 
 of particular and exceptional persons, 
 that they could not attend well to the 
 
 ■legal interests of the public at large. 
 But these considerations do not show. 
 
 that the law for the exceptional cases 
 is not as truly law as is the law for the 
 mass of cases ; or that the jury, who 
 are not to judge of the law for the mass, 
 are therefore to be the judges of the 
 law for the few. 
 
 7. That in respect especially to mat- 
 rimonial law, if, for Instance, a marriage 
 wliich was celebrated abroad, is held 
 good with us, because it was good 
 there, — that, I say, in these circum- 
 stances, the matter is really decided by 
 our own law, and not by the foreign, 
 has been already shown in these pages. 
 Ante, § 367. Let me here add a tran- 
 script of the words of Sir Edward 
 Simpson on this very point : " It is the 
 law of this country," he said, " to take 
 notice of the laws of France, or any 
 foreign country, in determining upon 
 marriages of this kind ; the question 
 being in substance this, whether, by the 
 law of this country, marriage contracts 
 are not to be deemed good or bad, ac- 
 cording to the laws of the country in 
 which they are formed, and whether 
 they are not to be construed by that 
 law. If such be the law of this country, 
 the rights of English subjects cannot 
 be said to be determined by the laws 
 of France, but by those of their own 
 country, lohich sanctioti and adopt this 
 rule of decision." Scrimshire v. Scrim- 
 shire, 2 Hag. Con. 395, 407, 4 Eng. Eo. 
 562, 568. 
 
 8. Thus, as I have said, the domestic 
 law makes the foreign law its own for 
 the particular case. But though the 
 domestic is public law, it does not 
 make the foreign law public also,. to 
 be judicially recognized by the courts. 
 In the case of a private statute, if a 
 public statute recognize it, then the 
 private statute becomes public law, to 
 be judicially noticed by the courts. 
 Benson v. Welby, 2 Saund. Wms. ed. 
 154, 155, note ; Samuel v. Evans, 2 T. 
 R. 569, 575 ; Dwar. Stat. 2d ed. 465. 
 For, in the one instance, the reason 
 
 1 Ante, § 410, 420. 
 24 
 
§ 422 EVIDENCE OP MARRIAGE. [BOOK IT. 
 
 that the law of nations is not, in any tribunal, foreign law ; 
 and that so much of the domestic law of a foreign country as 
 determines its flag and its seal is likewise, like the interna- 
 tional law, domestic in every court of justice.^ In like 
 manner, " where," says Story, " our own government has 
 promulgated any foreign law or 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, so far as the evidence is concerned, domestic 
 law. Likewise it has been held, in the Supreme Court of the 
 United States, that a copy of the Civil Code of Prance, purport- 
 ing to be printed at the royal press in Paris, and received in 
 the course of our international exchanges, with the indorsement 
 "ies Gardes des Sceaux de France a la Cour Supreme des 
 Etats Unis," may be received by the court, as evidence of the 
 French law, without further proof. " 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 minister 
 of justice official copies of all the laws, resolutions, and treaties 
 of the United States, and a complete series of the decisions of 
 this court. We do not doubt, whenever the question shall 
 occur in the courts of Prance, that the volumes which were 
 
 still holds good, that our judges could decide, it is a question of foreign 
 
 not, without being overburdened, carry law, — more difficult, from being less 
 
 in their minds an adequate knowledge understood, than are questions of do- 
 
 of all foreign law ; while, in the other, mestio law ; and requiring for its solu- 
 
 where- a private statute is recognized tion, even more than these, the peculiar 
 
 by a public one, the attention of tlie knowledge possessed by the judge, in 
 
 judges is thereby, in the terms of the distinction from the knowledge pos- 
 
 law, directed to the private act, and to sessed by the jury. See also, post, 
 
 hold them to a knowledge of it imposes § 423. 
 
 on them no additional burden. l Marshall, C. J. lays down the gen- 
 9. There are some persons who eral doctrine respecting this matter of 
 would commit all questions, both of foreign laws in the following words : 
 law and fact, to the decision of the " The laws of a foreign nation, designed 
 jury; and even permit the jury to only for the direction of its own affairs, are 
 determine, whetlier each particular not to be noticed by the courts of other 
 piece of evidence should be received countries, unless proved as facts." Tal- 
 as admissible, or rejected. This course hot v. Seeman, 1 Cranch, 1, 38. And 
 may be a good one, or it may not ; at Johnson, J. uses the like language in 
 all events, it is not the course estab- a, South Carolina case. Allen v. Wat- 
 lished by our judicial precedents. But son, 2 Hill, S. C. 319, 320. 
 surely if there is any question which 2 story Confl. § 640; Talbot w. See- 
 the judge instead of the jury should man, 1 Cranch, 1. 
 
 370 
 
CHAP. XXIII.] PROOF OP FOREIGN LAW. § 423 
 
 sent by us will be considered sufficiently authenticated to be 
 used as evidence." ^ 
 
 § 423. United States Judges take Cognizance of State Laws — 
 House of Lords recognize English Law in Scotch Appeals. — The 
 Supreme Court of the United States, and the several United 
 States circuit courts, take judicial cognizance of the laws of the 
 individual States, and they need not therefore be proved to 
 them as facts. At the same time, the States are separate and 
 independent sovereignties ; but the reason for the doctrine 
 seems to be, that, as the United States tribunals administer in 
 particular cases some parts or even the whole of the laws of 
 the States, — as for example, where a jurisdiction is given 
 them by reason of the plaintiff and defendant being citizens of 
 different States, — they must take cognizance of these local 
 laws, the same as though they were laws of the United States.^ 
 And a point somewhat curious and similar to this, arose in the 
 British House of Lords, sitting as a court of appeal from 
 Scotland. In the Scotch court below, there had been proof 
 given by experts of the English law ; and, upon the testimony, 
 the case . was decided in a particular way. When it came 
 before the House of Lords, the decision was reversed, the 
 lords not agreeing with the experts in their interpretation of 
 the law of England. " In the Scotch courts," said the Lord 
 Chancellor, " English law is a matter of evidence, and the 
 evidence of what it is must be sent there from England. The 
 opinions of English lawyers upon English law become, there- 
 fore, in Scotch courts, matters of fact, and are so received ; 
 but how stands the case here in the court of appeal, where the 
 judges are at once judges of English and of Scotch law ? Is it 
 not somewhat of a subtlety to say, that, though I am an Eng- 
 lish lawyer, I sit here on Scotch appeals as a Scotch lawyer 
 only, and that I have therefore only a right to look to the 
 report of the English law made by an English lawyer as a mat- 
 ter of fact, in the same manner as if I were a Scotch judge 
 sitting in a Scotch court, and bound so to receive it."^ And if 
 this view is correct, it lends strong corroboration to the propo- 
 
 i Ennis v. Smith, 14 How. U. S. J., in a somewhat different form of 
 
 400, 429. words. 
 
 2 Owings u. Hull, 9 Pet. 607, 625, 3 Douglas v. Brown, 2 Dow & C. 
 
 where the reason is stated by Story, 171, 177. 
 
 371 
 
§ 4:^4 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 sition stated a few sections back,i that the law of a foreign 
 country is matter to be dealt with by tlie court and not by the 
 jury ; because the House of Lords sits as a court of appeal only 
 in respect of the law as adjudicated below, and not of facts as 
 found by juries. 
 
 § 424. How prove 'Written Law of Sister State. — Some of 
 our State courts have held, that the written law of sister States 
 may be proved by the mere presentation to the court of an 
 apparently official copy of the statutes of such States,^ — a 
 mode of proof never allowed in the case of laws strictly of 
 a foreign country ; ^ but perhaps, most of' the State tribunals 
 discard this kind of evidence, and in the absence of any legis- 
 lative direction require, that either such statutes be authen- 
 ticated in the way pointed out by the act of Congress,* or be 
 verified by the oath of some person, or otlierwise made to 
 appear to be correct by some evidence equivalent to an oath 
 or such verification.^ But this matter is now, in most of the 
 States, regulated by statutes ; as, for example, in Missouri it 
 is enacted, that " the printed statute-books of sister States and 
 the several Territories of the United States, purporting to be 
 printed under the .authorities of such States or Territories, 
 shall be evidence of the legislative acts of such States or Terri- 
 tories ; " and, to make a volume evidence under this provision, 
 it must purport to be printed under the authority of the State 
 whose statutes it purports to contain.^ A book of statutes 
 
 1 Ante, § 421. 111. 15 ; The State v. Carr, 5 N. H. 367 
 
 2 Mullen V. Morris, 2 Barr, 85; Han- United States v. Johns, 1 Wash. C. C, 
 rick V. Andrews, 9 Port. 9 ; Taylor v. 361 ; Henthorn v. Shepherd, 1 Blackf. 
 Bank of Illinois, 7 T. B. Monr. 576 ; 157 ; Wilson v. Walker, 3 Stew. 211 
 Raynham v. Canton, 3 Pick. 293 ; The State v. Cheek, 13 Ire. 114 ; War- 
 Emery V. Berry, 8 Tost. N. H. 473 ; ner v. Commonwealth, 2 Va. Cas. 95 
 Thomas v. Davis, 7 B. Monr. 227, 230 ; Hunter v. Fulcher, 5 Rand. 126 ; Wil- 
 Barkman v. Hopkins, 6 Eng. 157 ; Eos- son v. Lazier, 11 Grat. 477 ; The State 
 ter V. Taylor, 2 Tenn. 191 ; Cox v. v. Jackson, 2 Dev. 563. 
 
 Robinson, 2 Stew. & P. 91 ; Thompson 5 Adams v. Gay, 19 Vt. 358 ; The 
 
 V. Musser, 1 Dall. 458; The State u. State </. Twitty, 2 Hawks, 441; Com- 
 
 Abbey, 29 Vt. 60. paret v. Jernegan, 5 Blackf. 375 ; Stan- 
 
 3 Raynham v. Canton, supra ; Pack- ford o. Pruet, 27 Ga. 243 ; Bailey v. 
 ard V. Hill, 2 Wend. 411 ; Chanoine v. McDowell, 2 Barring. Del. 84 ; Craig 
 Fowler, 3 Wend. 173; Lincoln v. Bat- v. Brown, Pet. C. C. 352. 
 
 telle, 6 Wend. 475 ; Beach v. Workman, 6 Bright v. White, 8 Misso. 421, 425 ; 
 
 20 N, H. 379. s. p. Baughan v. Graham, 1 How. 
 
 1 As to authentication under the act Missis. 220 ; Magee v. Sanderson, 10 
 
 of Congress, see Sisk u. Woodruff, 15 Ind. 261 ; Yarbrough v. Arnold, 20 Ark. 
 
 372 
 
CHAP. XXin.] PROOF OF FOREIGN LAW. § 425 
 
 purporting merely to be printed by a private printer is not 
 generally admitted in evidence.^ The words of the Massachu- 
 setts provision are : " Printed copies of the statute laws of any 
 Other State, and of the United States, or of the Territories 
 thereof, if purporting to be published under the authority of the 
 respective governments, or if commonly admitted and used as 
 evidence in their courts, shall be admitted in all courts of law, 
 and on all other occasions, in this State, as prima facie evi- 
 dence of such laws." ^ And it was held, that this provision 
 covered the case of a pamphlet containing the acts of a single 
 session only.^ If the volume produced has the words " By 
 Authority" printed on it, this sufficiently shows that it pro- 
 ceeded from the government whose laws it purports to con-, 
 tain.^ 
 
 § 425. HoTv much of the Laiw — Date — Presumption of its 
 Continuiiig. — Where the written law of a foreign state is to 
 be proved, it is not necessary to present to the tribunal the 
 whole body of the statutes ; but an authenticated copy of the 
 particular section or act relied on is to be received as prima 
 facie sufficient.^ In like manner, if the law, whether written 
 or unwritten, is proved as of a particular date, the presumption 
 appears to be, that it is the same at all subsequent times; 
 leaving the burden with the other party to show, if he can, a 
 change to have afterward taken place.* And on this principle 
 it was held in one of our former slaveholding States, that the 
 existence of slavery might be presumed in a sister State, as 
 follows : " Slavery, it is believed," said the learned judge, 
 " was originally introduced into the colonies by a regulation 
 of the mother country, of which the couuts in all the colonies 
 
 592. As to Iowa, see Latterett v. Cook, * Memfield v. Robbins, 8 Gray, 150. 
 
 1 Iowa 1. 8. p. Crake v. Crake, 18 Ind. 156. 
 
 1 Canfield v. Squire, 2 Boot, 300; ^ Hunter v. Fulcher, 5 Rand. 126; 
 Bostwick V. Bogardus, 2 Root, 250 ; Grant's Succession, 14 La. An. 795. 
 Dixon V. Tbatcher, 14 Ark. 141 ; Kin- « The State v. Patterson, 2 Ire. 346. 
 ney v. Hosea, 3 Harring.Del. 77; Geron In a Massachusetts case, Parker, C. J., 
 V. Felder, 15 Ala. 304. See Allen v. observed of a statute of another State 
 Watson 2 Hill, S. C. 319 ; Ellis u. which had been produced in evidence : 
 "Wiley, 17 Texas, 134. " The law being proved to have existed, 
 
 2 Gen. Stats, c. 131, § 63. The Rev. in the manner above stated, it must be 
 Stats, c. 94, § 59, were in like terms. presumed to exist until proved by as 
 
 3 Ashley v. Root, 4 Allen, 504. good evidence to have been repealed." 
 
 Raynham v. Canton, 3 Pick. 293, 297. 
 
 373 
 
§ 426 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 were equally bound to take notice, in the same manner as the 
 courts of the several States are now bound to take notice of 
 any regulation of the general government of the United States ; 
 and what the courts of the colonies were then bound to take 
 notice of judicially, we must still be presumed to know, if not 
 as matter of law, at least as matter of history As, there- 
 fore, in the State of Delaware we must presume that the law 
 tolerates slavery, inasmuch as that was the case before the 
 Revolution, the presumption of slavery which attaches to the 
 plaintiff is not destroyed by proof of his removal from that 
 State." 1 In this case, the presumption drawn by the court 
 harmonized with the law of the State in which it was drawn ; 
 but plainly the like presumption would not be made in any 
 free State, because, among other reasons, it would not harmo- 
 nize with the law of such free State. And there must be 
 various qualifications to the general proposition, that, when 
 the foreign law has been proved as of a particular date, it shall 
 be presumed to be the same during subsequent periods of time. 
 Still, the general doctrine holds good ; and, in some circum- 
 stances, the presumption may be even made to run the other 
 way, so that the court will deem the anterior law to be the 
 same with the law proved as of a later date.^ 
 
 § 426. Witnesses — Record Evidence. — The general ques- 
 tion, who may be witnesses to prove the foreign law, where it 
 is not made to appear as a record under the seal of the foreign 
 nation, or is not presented in the form of the authentic statute- 
 book of a sister State, will be best considered when we come 
 specially to treat of the evidence to establish a foreign mar- 
 riage. But it may -here be observed, in connection with the 
 subject of record, that a United States consul abroad is not 
 authorized so to certify the laws of the country in which his 
 consulate is, as to make the certificate evidence, without other 
 proofs, in our courts.^ Says Story : " The usual mode of 
 authenticating foreign laws (as it is of authenticating foreign 
 judgments) is by an exemplification of a copy under the great 
 
 1 Davis V. Curry, 2 Bibb, 238, 240, And see Farwell v. Harris, 12 La. An. 
 
 241, opinion by Boyle, C. J. Tor a 50. 
 
 case somewhat similar in principle, see 2 Goodwin v. Appleton, 22 Maine, 
 
 Charlotte v. Chouteau, 25 Misso. 465. 453. 
 
 374 
 
 3 Stein V. Bowman, 13 Pet. 209. 
 
CHAP. XXin.J PROOF OP FOREIGN LAW. § 426 
 
 seal of a State, or by a copy proved to be a true copy by a 
 witness who has examined and compared it with the original, 
 or by the certificate of an officer properly authorized by law to 
 give the copy, which certificate must itself also be duly 
 authenticated." ^ The original evidence of a statute, in any 
 State, is the engrossed act itself to be found in the office of 
 tlie Secretary of State ; and, though there may be error in the 
 printed copy commonly u^ed by the courts in such State, yet 
 the error will be rectified on the production of this original 
 testimony .2 And if a witness is to give evidence of a foreign 
 written law, pfeinly the rule thus mentioned by Story requires, 
 not that he should present a copy which he has made from 
 what he knows to be the usually received published statutes of 
 such country, but from the original rolls. On other principles, 
 a witness would be precluded from testifying, in parol, to the 
 contents of a written foreign statute-book, or otherwise stating 
 what is the written foreign law, without the production of the 
 law itself; and that he cannot do this, is a point well settled.^ 
 Likewise it has been held, that mere parol proof of the fact of 
 a book, which is presented to the court, being commonly 
 received and used in the courts of the foreign state as an 
 authentic copy of the statutes of such state, is no sufficient 
 evidence of the existence of the statutes it purports to contain.* 
 On the other hand, in Pennsylvania, the court admitted the 
 printed statutes of Ireland, accompanied by the affidavit of an 
 Irish barrister that he received them from the king's printer, 
 and that they are evidence in Ireland, to be read in evidence 
 as showing the Irish statutory law.® In like manner the 
 tribunal of Maine has held, that a printed volume of the laws 
 of a British province, proved by witnesses to have received the 
 sanction of the executive and judicial officers of the province 
 
 1 Story CoDfl. Laws, § 641 ; s. p. States u. Ortega, 4 Wash. C. C. 531 ; 
 Wayne, J., in Ennis M. Smith, 14 How. Tryon v. Eankin, 9 Texas, 595; Mc- 
 U. S. 400, 426. Neill v. Arnold, 17 Ark. 154 ; Consequa 
 
 2 Clare v. The State, 5 Iowa, 509. v. WiUings, Pet. C. C. 225 ; Wood- 
 
 3 Kenny v. Clarkson, 1 Johns. 385 ; bridge v. Austin, 2 Tyler, 364 ; Char- 
 Robinson V. CliflTord, 2 Wash. C. C. 1 ; lotte v. Chouteau, 25 Misso. 465. 
 Hoes V. Van Alstyne, 20 111. 201 ; 4 Van Buskirk u. Mulock, 3 Harri- 
 Emery v. Berry, 8 Fost. N. H. 473 ; son, 184. 
 
 Comparet v. Jernegan, 5 Blackf. 375 ; 5 Jones v. Maffet, 5 S. & R. 523. 
 Smith V. Potter, 27 Vt. 304; United 
 
 375 
 
§ 427 EVIDENCE OF MARRIAGE. ' [BOOK IV. 
 
 as containing its laws, and to be commonly cited in its courts, 
 is admissible in evidence in a case where the title to land 
 situated within such province is in question.^ And in Texas ^ 
 and Vermont^ the full doctrine seems to be laid down, that, 
 where the witness knows the statute-law produced to be the 
 same which is commonly read and received in the courts of 
 the foreign country as authentic, it may be so read in the 
 tribunals of the country wherein the matter is drawn into con- 
 troversy. 
 
 § 427. Proof of the Unwritten Law — Construction. — The 
 proof of the common, or imwritten, law of a foreign country 
 may, and indeed must, be by parol.* And the construction 
 which a statute is to receive, together with its application to 
 the particular case in hand, is a matter pertaining to the for- 
 eign unwritten law. These, therefore, may be proved likewise 
 by parol.* But suppose the party who relies upon the foreign 
 law, whether written or unwritten, does not introduce any evi- 
 dence concerning its construction or its applicability to the 
 particular case, — does he, therefore, stand as though he had 
 not introduced the law, so that his production thereof amounts 
 to a mere nullity ? There are no cases which so hold. On 
 the other hand, it is by respectable judges decided, that in 
 such circumstances the court before which the trial is being 
 conducted will construe for the jury, and apply to the case, the 
 foreign law the same as if it were domestic.^ In such a case, 
 either the evidence of the foreign law must pass for nothing, or 
 else the law must be construed by the court, or by the jury.' 
 
 1 Owen V. Boyle, 15 Maine, 147. Willings, Pet. C. C. 225 ; Woodbridge 
 
 2 Burton v. Andersoji, 1 Texas, 93. v. Austin, 2 Tyler, 364 ; Charlotte v. 
 
 3 Spaulding v. Vincent, 24 Vt. 501. Chouteau, 25 Misso. 465. 
 
 * McRae v. Mattoon, 13 Pick. 53 ; 5 Hoes v. Van Alstyne, 20 lU. 201 ; 
 
 Prith V. Sprague, 14 Mass. 455 ; United Dyer v. Smith, 12 Con. 384 ; People 
 
 States V. Ortega, 4 Wash. C. C. 531; v Lambert, 5 Mich. 349; Walker v. 
 
 Livingston v. Maryland Insurance Co., Forbes, 81 Ala. 9. 
 
 6 Cranch, 274; Dougherty v. Snyder, 6 Sidwell v. Evans, 1 Pa. 383; Char- 
 
 15 S. & R. 84 ; Kenny v. Clarkson, 1 lotte v. Chouteau, 25 Misso. 465. This 
 
 Johns. 385; Bobinson v. CUiford, 2 doctrine seems to be fairly deducible 
 
 Wash. C. C. 1 ; Danforth v. Reynolds, also from Ennls v. Smith, 14 How. U. 
 
 1 Vt. 259 ; Tryon v. Rankin, 9 Texas, S. 400, 428. See also post, § 480. 
 
 595; Wilson v. Carson, 12 Md. 54; 1 In Holman v. King, 7 Met. 384, 
 
 McNeill V. Arnold, 17 Ark. 154 ; Mer- the work of construction seems to have 
 
 ritt V. Merritt, 20 Dl. 65 ; Tyler v. been left, on the evidence, for the jury. 
 Trabue, 8 B. Monr. 806; Consequa v. 
 376 
 
CHAP. XXIII.] PBOOP OF FOREIGN LAW. § 429 
 
 That on no sound principles can it be made matter for the 
 jury, has been already shown in these pages.i 
 
 § 428. Proof of Foreign Written Law, continued. — From the 
 third edition of Taylor on Evidence, the following passage, 
 with the notes attached, has been extracted : " It seems to have 
 been thought at one time, that all foreign written law must be 
 proved by a copy properly authenticated ; ^ but this doctrine is 
 now distinctly exploded ; the House of Lords having deter- 
 mined,2 in accordance with a decision of the Court of Queen's 
 Bench,* that, whenever foreign written law is to be proved, 
 that proof cannot be taken from the book of the law, but must 
 be derived from some skilled witness who describes the law." ^ 
 And in the case before the House of Lords to which the author 
 refers. Lord Brougham observed : " It is perfectly clear that 
 the proper mode of proving a foreign law is not by showing to 
 the House the book of the law ; for the House has not organs 
 to know and to deal with the text of that law, and therefore 
 requires the assistance of a lawyer who knows how to interpret 
 it. If the Code Napoleon was before a French court, that court 
 would know how to deal with and construe its provisions ; but 
 in England we have no such knowledge, and the English judges 
 must therefore have the assistance of foreign lawyers." And 
 Lord Denman added : " A skilful and scientific man must state 
 what the law is, but may refer to books and statutes to assist 
 him in doing so." ^ 
 
 § 429. Continued. — In the case of Ennis v. Smith, before the 
 Supreme Court of the United States, Mr. Justice Wayne shows, 
 that the doctrine stated in the last section cannot be, in an un- 
 qualified sense, sound, even as an exposition of the present 
 English law. And he quotes Lord Langdale, " who also sat 
 with the other judges in the Sussex Peerage Case," as using 
 afterward '^ the following language : " Though a knowledge of 
 
 1 Ante, § 418^21 and note. * Baron de Bode's Case, 8 Q. B. 
 
 2 Eex V. Picton, 30 How. St. Tr. 208, 250-267. 
 
 491, per Lord EUenborough ; Clegg v. ^ 2 Taylor Ev. 3d ed. § 1280. 
 Leory, 3 Camp. 166 ; Millar v. Hein- * Sussex Peerage Case, 11 CI. & F. 
 
 rick, 4 Camp. 155; Ereemoult v. Dedire, 85, 115, 116. 
 
 1 P. Wms. 429 ; Boethlinck v. Schnei- ' In Nelson v. Bridport, 8 Beav. 527, 
 
 der, 3 Esp. 58. 537. 
 
 8 Sussex Peerage Case, 11 CI. & F. 
 85, 114-117. 
 
 377 
 
§ 431 EVIDENCE OP MARRIAGE. [BOOK IT. 
 
 foreign law is not to be imputed to the judge, you may impute 
 to him such a knowledge of the general art of reasoning as will 
 enable him, with the assistance of the bar, to discover where 
 fallacies are probably concealed, and in what cases he ought 
 to require testimony more or less strict. If the utmost strict- 
 ness was required, in every case, justice might often have to 
 stand still ; and I am not disposed to say, that there may not 
 be cases in which the judge may, without impropriety, take 
 upon himself to construe the words of a foreign law, and deter- 
 mine their application to the case in question, especially if there 
 should be a variance or want of clearness in the testimony." 
 At all events, tlie doctrine of the last section, however it may 
 stand in England, is not, as concerns the present point, law in 
 the United States.^ It would prove extremely embarrassing in 
 administration, and reverse the whole course of our inter-State 
 practice and adjudication on this subject. The doctrine of an 
 Ohio case is believed to be sound in our American jurisprudence 
 generally, that the statutes of a sister State, and the interpre- 
 tations which they have received from the courts of the State, 
 must be proved as facts ; " and," it was added, " if such stat- 
 utes be given in evidence, but no evidence of such peculiar 
 construction be given, the courts of the State will give the 
 statutes such construction as may be authorized by the settled 
 construction of such statutes in this State." ^ 
 
 § 430. Foreign Judicial Decisions. — In Connecticut it is pro- 
 vided by statute, " That the reports of the judicial decisions of 
 other States and countries may be judicially noticed by the 
 courts of this State, as evidence of the common law of such 
 States or countries, and of the judicial construction of the stat- 
 utes or other laws thereof."^ And there are cases reported in 
 other States, in which something approacliing to this has been 
 done without statutory authority.* 
 
 § 431. Conclusion — Needed Rule of Court. — Thus we have 
 brought under our review the leading doctrines, with most of 
 
 1 Ennis v. Smith, 14 How. U. S. 400, * Ferguson v. Clifford, 37 N. H. 86 
 
 428. Donald v. Hewitt, 33 Ala. 534, 550 
 
 ^ Smith II. Bartram, 11 Ohio State, Alexander v. Alexander, 31 Ala. 241 
 
 690. Alexander v. Torrence, 6 Jones, N. C. 
 
 3 Lockwood V. Crawford, 18 Conn. 260, 262. 
 361. 
 
 378 
 
CHAP. XXIV.] THE PRESUMPTIONS. § 432 
 
 the American cases, and some of the English, connected with 
 the subject of the present chapter. It is believed, that, with- 
 out further expansion of the matter, the reader can gather from 
 it what are the author's views ; and, a point of vastly greater 
 importance, what are the materials, both of decision and of 
 reason, out of which to form views for himself. In a country 
 like our own, the facilities for proving the laws of neighboring 
 States and nations should be as much extended as is consistent 
 with the high rule which protects parties from imposition. 
 And if the judges of our courts should, among their Rules of 
 Court, adopt on this subject a provision permitting parties, on 
 notice to the opposite party, to introduce, if not objected to, 
 the books of the public laws of other countries specified in the 
 notice, and requiring the other party, if he objects, to verify his 
 objection by an oath, and a statement showing that he should 
 probably be prejudiced by such a course, they would promote 
 substantial justice, and save expense and labor to litigants. 
 
 • CHAPTBE XXIV. 
 
 THE PBESUMPTIONS WHICH ATTEND THE OTHER PROOFS OP 
 MARRIAGE. 
 
 432,433. Introducaon. 
 
 434-449. Presumption of Innocence. 
 
 450, 451. Presumption that Official Persons have done their Duty. 
 
 452-456. Presumption of Life. 
 
 457-459. General Presumption favoring Marriage. 
 
 § 432. Presumptions operating -with other Proofs. — There 
 were readers who gave reluctantly, if at all, their assent to the 
 proposition laid down in the last chapter, that, when the law of 
 a foreign country is to be established in a judicial tribunal as a 
 fact connected with a cause in hearing before the jury, the ques- 
 tions of the existence, the interpretation, and the application to 
 the cause of the foreign law, and even such attendant questions 
 as the credibility of the witnesses to prove it, are for the judge 
 
 379 
 
§ 433 EVIDENCE OP MAHRIAGB. [bOOK IV. 
 
 and not for the jury.^ If to such persons it seemed strange 
 that the judge should pass upon a fact, which was also law, 
 thus leaving it to the court rather than to the jury to deter- 
 mine how the cause, upon this fact, should be decided, — how 
 can they reconcile themselves to this other truth, that, in all 
 cases in which the issue is one of marriage or no marriage, 
 the judge, according to established doctrine about which there 
 is no dispute, is to submit to the jury this issue, not as a bare 
 one without any controlling presumptions, but upon certain 
 pre-established presumptions of law, the result of which must 
 ordinarily be to leave to the jury but little of discretion con- 
 cerning their verdict ? It is not the purpose of the writer of 
 these volumes to vindicate the law, so much as to state what 
 it is ; yet the reader cannot fail to notice, that, in respect to a 
 thing of such universal concern as marriage, there is wisdom 
 in giving to the procedure by which the question is established, 
 so much uniformity and certainty as shall leave no doubt, in 
 most instances, as to what the result of a litigation would be. 
 And this can only be done through established and known rules 
 of law. Likewise, as in each case the practical question is, not 
 whether a marriage has been truly entered into or not, but 
 whether, upon the proofs and the presumptions, a jury would 
 find in favor of or against the assumed marriage, this subject 
 of the evidence of marriage is, in effect, but ant)ther branch of 
 the jurisprudence discussed in the last Book, wherein the writer 
 undertook to explain by what means marriages are formed, 
 and what imperfections in their formation render them null 
 or voidable. 
 
 § 433. The Particular Presumptions — How the Chapter divided. 
 — In this chapter, the following four presumptions will be con- 
 sidered : I. The Presumption of Innocence ; II. The Presump- 
 tion that Official Persons have done their Duty ; III. The 
 Presumption of Life ; IV. The General Presumption which 
 favors Marriage. The third of these presumptions is some- 
 times brought forward to defeat a marriage ; as, where a man 
 is shown to have had a former wife living shortly before he 
 contracted a second marriage, and the presumption of life is 
 called in to show, that, at the time of the solemnization of the 
 
 1 Ante, § 421 and note, and accompanying sections. 
 380 
 
CHAP. XXIV. J THE PRESUMPTIONS. § 434 
 
 second marriage, he was already a married man. The three 
 other presumptions have for their object the strengthening of 
 marriage. Yet none of these three are peculiar to this issue, 
 except the last ; the other two being equally available in other 
 issues. And there is one observation which the reader should 
 bear specially in mind ; namely, that thouglf no single one of 
 these three presumptions may be sufficient to establish a par- 
 ticular marriage in controversy, yet, in combination, the three 
 may suffice. Between the single strand and the threefold cord 
 there is, indeed, often this difference, that, while the strand 
 can be broken, the cord cannot be. Yet it is necessary to look 
 at this cord strand by strand. 
 
 I. The Presumption of Innocence. 
 
 § 434. General Doctrine. — Mr. Best, whose words we shall 
 here quote in connection with his text, says : " It is a principle 
 of law, nearly if not quite universal, that Odiosa et inhonesta 
 non sunt in lege prcesumenda} In furtherance of this it is a 
 maxim, that fraud and covin are never presumed,^ even in 
 third parties whose conduct only comes in question collaterally.^ 
 So the law in general presumes against vice and immorality ; 
 and on this ground holds acknowledgment, cohabitation, and 
 reputation presumptive evidence of marriage ; * except " ° in 
 cases to be particularly mentioned further on. Of the like sort to 
 this is the language of the books generally. It is not so clear 
 — is not a block of truth cut so neatly from the quarry — as 
 we should like to see. When the adjudged cases and the dis- 
 quisitions of the judges on the bench are brought also before our 
 contemplation, we derive from the whole what is believed to be 
 a better statement of so much of the doctrine as concerns our 
 present inquiries, thus, — that, since no man is to be presumed, 
 without proof, to live in violation of law and of the ordinary 
 rules of decency and decorum, the law shall presume every 
 couple who live togetlier in the way of husband and wife to be 
 such in fact. This presumption is not a conclusive one, but it 
 
 1 10 Co. 56 a. i Fleming v. Fleming, 4 Bing. 266 ; 
 
 2 10 Co. 56 a ; Cro. Eliz. 292 ; Cro. Eeed v. Passer, Peake, 231. 
 Jac. 451 ; Cro. Car. 550. 5 Best Ev. 2d Lond. ed. 416. 
 
 3 Per BuUer, J., in Koss v. Hunter, 
 4 T. R. 38. 
 
 381 
 
§ 436 EVIDENCE OP MARRIAGE. [BOOK IT. 
 
 permits the party who would dispute the result in the particu- 
 lar instance to establish such his allegation in proof. In other 
 words, the presumption merely casts upon him who claims that 
 the parties are not married, the burden of proving them not to 
 be married. 
 
 § 435. Universality of the Presumption. — The presumption of 
 innocence is one which runs through the entire field of our law. 
 Not only is a man who is indicted for a crime presumed to be 
 innocent, notwithstanding the indictment, but for a stronger 
 reason is the man who is not even indicted so presumed. Inno- 
 cence is the usual condition of mankind before the law ; and, 
 where the contrary is alleged in an individual case, it must be 
 specially shown. This general doctrine is, in the books, ex- 
 pressed in an almost infinite variety of forms. Thus, in one 
 case. Lord EUenborough, 0. J., laid it down as -follows : It is a 
 general rule of law, he said, " that, where any act is required 
 to be done, on the one part, so that the party neglecting it 
 would be guilty of a criminal neglect of duty in not having 
 done it, the law presumes the affirmative, and throws the bur- 
 den of proving the contrary, that is, in such case of proving a 
 negative, on the other side," ^ — a statement which shows the 
 identity of the doctrine discussed in the present and in the next 
 sub-title. The division of the matter thus was adopted by the 
 writer merely for the sake of convenience. That persons shall 
 not be deemed without proof to be guilty of immoralities, though 
 they do not amount to crimes, is likewise a branch of this same 
 presumption. 
 
 § 436. Not conclusive — Burden of Proof. — Presumptions of 
 this class are not, as already noticed, conclusive ; still it is 
 generally said that they shift the burden of proof.^ Perhaps 
 this expression is inaccurate, and it would be more nicely exact 
 to say, that, viewed as a species of evidence, they establish a 
 prima facie case ; but, however this may be, when a marriage 
 is made to appear by the force of this sort of presumption, the 
 other party may show, that, in truth, there was no marriage ; 
 and so the presumption fails.^ 
 
 1 Williams v. East India Co., 3 East, s Philbrick v. Spangler, 15 La. An. 
 192,, 199. 46; Myatt v. Myalt, 44 111. 473; Guar- 
 
 2 1 Greenl. Ev. § 33-35. dians of the Poor v. Nathans, 2 Brew- 
 
 382 
 
CHAP. XXIV.] THE PRESUMPTIONS. § 438 
 
 § 437. How Doctrine applied — Cohabitation — Reputation. — 
 
 The result of these propositions is, that, as already stated, when 
 a man and woman are living together in the way of husband 
 and wife, and there is no counter-evidence or counter-presump- 
 tion in the case, they are in law taken to be married persons,i 
 — a conclusion which may indeed be resisted by other evidence, 
 or by other matter which appears in the case itself. " Like 
 all other contracts," remarks BuUard, J., in a Louisiana case, 
 marriage " may be proved by any species of evidence, not 
 prohibited by law, which does not presuppose a higher species 
 of evidence within the power of the party ; and cohabitation as 
 man and wife furnishes presumptive evidence of a preceding 
 marriage. It is not to be presumed those who hold themselves 
 out in society as man and wife, who are rearing a family of 
 children at their domestic board, to whom the father gives his 
 name, over whom he exercises a parent's authority, and ad- 
 ministers a parent's protection and support, are living in open 
 disregard of public morals, and that their common offspring 
 are bastards." ^ 
 
 § 438. Continued. — Cohabitation, and the reputation of 
 being husband and wife, are usually considered together in 
 questions concerning the proof of marriage ; the one being, in 
 a certain sense, the shadow of the other. Some of the author- 
 ities favor the idea, that reputation of itself may be received as 
 sufficient proof prima faeie^- but it must be uniform, and 
 general ; and, if there is a conflict in the repute, it will not 
 establish the marriage.* On the other hand, its sufficiency in 
 
 ster, 149 ; Physick's Estate, 2 Brewster, length of time during which the cohab- 
 179. itation continued is a material circum- 
 1 Starr w. Peck, 1 Hill, N. Y. 270; stancein considering its weight in proof 
 Telts u. Poster, 1 Taylor, 121 ; Shand of marriage. Revel u. Pqx, 2 Ves. Sen. 
 V. Gardiner, 2 Lee, 135, 6 Eng. Ec. 68 ; 269 ; Heryey v. Hervey, 2 W. Bl. 877. 
 Eaton V. Bright, 2 Lee, 85, 161, 6 Eng. 2 Holmes v. Holmes, 6 La. 463. 
 Ec. 47, 80 ; Cunninghams v. Cunning- 3 pieming v. Eleming, 4 Bing. 266, 
 hams, 2 Dow, 482 ; Rex v. Twyning, 2 12 J. B. Moore, 500 ; Fornshill v. Mur- 
 B. & Aid. 886 ; Fleming v. Eleming, 4 ray, 1 Bland, 479, 482 ; Pettingill v. 
 Bing. 266, 12 J. B. Moore, 500; Hub- McGregor, 12 N. H. 179 ; Mitchell o. 
 back on Succession, 248 ; Hantz i). Sealy, Mitchell, 11 Vt. 134; Sneed u. Ewing, 
 6 Binn. 405 ; Budington v. Munson, 33 1 J. J. Mar. 460, 491 ; Tarpley v. Poage, 
 Conn. 481 ; Lehigh Valley Railroad v. 2 Texas, 139, 149 ; Hubback on Sue- 
 Hall, 11 Smith, Pa. 361 ; Christie's cession, 243 ; Jones v. Hunter, 2 La. 
 Estate, 1 Tucker, 81 ; Guardians of the An. 254. 
 
 Poor V. Nathans, 2 Brewster, 149. The * Cunninghams v. Cunninghams, 2 
 
 383 
 
§ 439 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 any case has been denied, unless there be accompanying proof 
 of cohabitation.! We shall find further light on this point as 
 we proceed in this discussion.^ By the Scotch law cohabita- 
 tion alone is considered insufiicient ; there must also be 
 "habit and repute;" because, it is said, 'the parties may eat 
 and live and sleep together, as mistress and keeper, without 
 any intention of entering into marriage. Nor is evidence of 
 habit and repute alone sufficient ; it must be coupled with 
 evidence showing the cohabitation to be matrimonial.^ It may 
 be observed, that, in Scotland, matrimonial cohabitation with 
 habit and repute seems almost to be regarded as something 
 more than mere evidence of marriage ; the books of Scotch law, 
 unlike ours, laying down the proposition that marriage may be 
 constituted by such cohabitation, habit, and repute,* though 
 undoubtedly in a just and philosophical view these are there, 
 as here, but the evidence of marriage." Indeed, we have seen 
 that the doctrine is so held.^ In our law, the cohabitation 
 must be matrimonial, in distinction from a connection pro- 
 fessedly illicit ; ^ nor can we easily see how it can be sepa- 
 rated from the reputation of marriage, as a question of fact, 
 however it may be as one of law. 
 
 § 439. Continued. — It is almost impossible so to separate the 
 elements which compose the different cases as to enable us to 
 state, on the authorities, precisely what weight is to be given 
 the presumption of innocence ; what, or whether any, to its 
 shadow, reputation ; and so on, of the rest. In all the cases 
 there are facts more or less operating with or against this 
 great central presumption of the innocence of a cohabitation. 
 Chancellor Walworth observed : " If a man and woman are 
 cohabiting together, and .the question to be decided is, whether 
 the character of her intercourse with him is matrimonial or 
 meretricious, the declarations of the parties during the exisfr 
 euce of such intercourse, the fact of their appearing in public 
 
 Dow, 482 ; 1 Fras. Dom. Rel. 207 ; Jones 3 i pjas. Dom. Eel. 204, 205. 
 
 V. Hunter, supra ; Hamilton o. Hamil- * lb. .202. 
 
 ton, 1 Bell Ap. Cas. 736, 9 CI. & F. 327. 5 Ante, § 246, 266. 
 
 1 1 Greenl. on Evidence, § 107. And 6 Ante, § 266, 266 a. 
 
 see 1 Phillips on Bv. with C. & H.'s ' Matter of Taylor, 9 Paige, 611 ; 
 
 notes, 3d ed. 234, 428. Rose v. Clark, 8 Paige, 574. 
 
 '^ See post, § 540. 
 
 384 
 
CHAP. XXIV.] THE PRESUMPTIONS. § 440 
 
 with each other as husband and wife, of their visiting in 
 respectable families, and of their being treated by their 
 acquaintances and spoken of by them as sustaining that rela- 
 tion to each other, constitute a part of the res gestm, showing 
 the character of that intercourse to be matrimonial and virtu- 
 ous. And contemporaneous declarations and attending cir- 
 cumstances of a different character would be legal evidence 
 from which the conclusion might be legitimately drawn, that 
 the intercourse between the parties was illicit and dishonor- 
 able." ^ But declarations of the parties and other attendant 
 circumstances, in order to be received in evidence on the prin- 
 ciple here stated, must be contemporaneous with the cohabita- 
 tion, which is the main fact, and the fact to which they are 
 intended to give character. Therefore declarations made, and 
 general reputation originating, after the cohabitation had 
 ceased, were held in one case not to be receivable.^ 
 
 § 440. Hovr the Doctrine is limited. — Inference nullifying 
 Inference. — The reason of the rule that cohabitation, with its 
 attendant shadow the reputation of marriage, is to be received 
 as sufficient evidence from which a marriage may be prima 
 facie inferred, suggests its limit. If, in the case itself, or in 
 facts attending upon it, there is, besides that from which mar- 
 riage may be presumed as already explained, matter also 
 upon which the same presumption of innocence may likewise 
 operate with the contrary result, as showing the parties not 
 to be married, then, since inference stands against inference, 
 first, that there is a marriage, and, secondly, that there is not, 
 the conflicting inferences nullify each other, and amount to 
 nothing.^ A plain case of this sort would be, where a man 
 should be found living with two women at the same time as 
 his wives: here, since in law he could have but one wife, 
 and since the presumption of innocence would, while attempt- 
 ing to make woman A his wife, make woman B his wife also, 
 and thereby show woman A not to be his wife, — presump- 
 tion nullifying presumption, — the case must be considered 
 
 1 Matter of Taylor, 9 Paige, 611, W. Bl. 877. But see Raynham v. Can- 
 617. See also Westfleld v. Warren, 3 ton, 3 Pick. 293. 
 Halst. 249 ; Stevenson v. McReary, 12 2 Jn the Matter of Taylor, snpra. 
 Sm. & M. 9, 56 ; Hervey v. Hervey, 2 ' And see Bishop Stat. Crimes, § 608, 
 
 609. 
 
 voii. I. 25 385 
 
§ 440 a EVIDENCE OF MAEEIAGB. [BOOK IV. 
 
 the same as though there were no presumption of innocence 
 known to the law. And where the facts are not so palpable 
 as these, still, if the presumption of innocence would draw 
 opposite inferences, though not exactly of equal force, the law 
 cannot well distinguish between the one and the other, and 
 give effect to the weightier or more powerful one, and cast 
 aside the one less weighty or less, powerful.^ 
 
 § 440 a. Continued. — A case illustrating this doctrine in a 
 somewhat different way occurred in Wisconsin. It was an 
 indictment for polygamy, and the question was as to the proof 
 of the first marriage, which was celebrated in Prussia. We 
 shall see, that, in a polygamy case, the proof cannot be by show- 
 ing mere cohabitation and repute, but the fact must be otherwise 
 established. Evidence was in this instance given, that, under 
 the Prussian law, a marriage to be valid must be entered 
 into as a civil contract before a civil magistrate ; in practice, 
 however, the parties generally have some form of religious 
 solemnization following the civil ; but the former is forbidden by 
 law, under severe penalties, until the latter has taken place. 
 In this instance, the religious ceremony only was shown ; and, 
 as the persons engaged in it would have been guilty of crime 
 unless the civil had been performed, it was urged that the 
 presumption of the innocence of those persons would suffi- 
 ciently sustain the inference of its performance. But the 
 court rejected this view of the case ; Paine, J., observing of 
 the«point : " 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 strictness required in 
 criminal prosecutions. In these, there must be proof, either 
 direct or circumstantial, having some intrinsic tendency to 
 establish the facts showing guilt." ^ 
 
 1 And see, upon this subject, the Q. B. 349, 353, 358 ; and of Cope, J. in 
 
 observations of Edwards, J. in Clayton Case v. Case, 17 Cal. 598, 601. 
 V. Warden, 5 Barb. 214 ; of Eobinson, 2 Weinberg u. The State, 25 Wis, 
 
 C. J. in Brealiey v. Brealsey, 2 U. C. 370, 376. And see post, § 450, 451. 
 386 
 
CHAP. XXIT.] THE PRESUMPTIONS. § 441 
 
 § 441. Continued — Polygamy — Crim. Con. — If, in this case 
 of the Prussian marriage, the prosecuting power had under- 
 taken to prove cohabitation in Prussia, and then had asked the 
 court to direct the jury, that, seeing the cohabitation if there 
 was no lawful marriage would at least be a violation of good 
 morals and the established order of society, they should there- 
 fore infer a marriage from it, the answer would have been the 
 same in effect which the court gave to the case as it was 
 actually presented in the proofs. The two presumptions, first, 
 that the cohabitation in Prussia under the first supposed mar- 
 riage was innocent, and, secondly, that the same in Wisconsin 
 under the second supposed marriage was innocent, would not 
 stand together, and the one would nullify the other. There- 
 fore the cases most commonly mentioned, in which proof of 
 cohabitation, with its attendant shadow, reputation, is not suf- 
 ficient to establish marriage, are indictments for polygamy and 
 actions for criminal conversation. In tlie latter class there is 
 another reason also assigned for this conclusion ; namely, that, 
 if this species of proof were held sufficient, defendants might 
 be charged on evidence made by the parties who bring the 
 action. 1 But this cannot be the controlling reason ; since, in 
 all other civil causes, the evidence of cohabitation and repute is 
 received in favor of the plaintiffs, as presumptive proof of their 
 own marriage; and, generally, it has been considered to have 
 the same significance in the hands of a husband setting up his 
 own marriage as in those of any other person.^ It has also 
 
 suppose the decision in this case is innocence of third persons to overcome 
 
 right, particularly as this was a foreign the presumed innocence of the defend- 
 
 marriage, and that it would, hare been ant. We cannot expect to find the 
 
 the same if the marriage had been a adjudged law precisely harmonious 
 
 domestic one. Yet we shall see fur- with its reasons at all points ; but, in 
 
 ther on (post, § 479, 480, and various this instance, the cases are probably 
 
 other places), that, where official per- distinguishable in matter of principle, 
 
 sons are required by law to keep a Though, in a sense, the record may rest 
 
 record of marriages, the record may on the presumed innocence of official 
 
 be shown In evidence on the ground persons, yet it has in the eye of the 
 
 that they must be presumed to have law a certain established character for 
 
 done their duty, and not to have ex- verity of another sort. It is a public 
 
 posed themselves to the penalties of depository of fact, such as the mere 
 
 the law, and this evidence is good in presumption of an individual's inno- 
 
 criminal cases and actions for crim. con. cence is not. 
 the same as in any other. This is a ' Morris v. Miller, 4 Bur. 2057. 
 sort of putting the presumption of the ^ Young v. Foster, 14 N. H. 114. 
 
 387 
 
§ 443 EVIDENCE OP MARRIAGE. [BOOK IT. 
 
 been suggested, that the action for criminal conversation has a 
 mixture of penal consequence in it,^ — a proposition hardly true 
 in fact ; but, admitting this to be so, still, as has been observed, 
 "it cannot be contended that, when the same fact comes in dis- 
 pute in a civil and criminal case, the law requires other and 
 different evidence to establish such fact in the one case from 
 what it requires to establish the fact in the other." ^ 
 
 §442. Cases enumerated where Cohabitation not enough. — 
 The marriage, therefore, has been required to be proved by 
 evidence other than of cohabitation and repute in actions for 
 criminal conversation, ^ and in indictments for polygamy,* for 
 adultery ,5 for incest,^ and for loose and lascivious cohabitation.' 
 But as this action and these indictments are tlie only cases which 
 have yet arisen wherein the plaintiff tenders the issue, that one 
 of two cohabitations, or acts of commerce between the sexes, 
 is criminal and the other innocent, the marriage is frequently 
 said to be provable, in all other cases, by cohabitation and 
 repute.^ 
 
 § 443. Cases enumerated in which the Presumption applies. 
 — Therefore the evidence which rests on the presumption of 
 
 1 Burt V. Barlow, 1 Doug. 171 ; Pom- 492 ; The State v. Hodgskins, 19 Maine, 
 sMll V. Murray, 1 Bland, 479, 482 ; Tay- 155 ; The State v. Annice, N. Chip. 9. 
 lor V. Shemwell, 4 B. Monr. 575. 6 The State v. Roswell, 6 Con. 446. 
 
 2 Warner v. Commonwealth, 2 Va. 1 Commonwealth v. Littlejohn, 15 
 Cas. 95. See also Clayton v. Wardell, 5 Mass. 163. 
 
 Barb. 214 ; Means v. "Welles, 12 Met. 8 Northfield v. Vershire, 33 Vt. 110; 
 
 356, 361. '-A fact," says Lord Chan- Archer v. Haithoock, 6 Jones, N. C. 
 
 cellor Erskine, " must be estabUshed 421 ; Thorndell v. Morrison, 1 Casey, 
 
 by the same evidence, whether it is to 326 ; People v. McCormack, 4 Parker, 
 
 be followed by a criminal or civil con- 9 ; Harman v. Harman, 16 111. 85 ; 
 
 sequence." Lord Melville's Case, 29 Donnelly v. Donnelly, 8 B. Monr. 113 ; 
 
 Howell St. Tr. 550, 764. Chiles v. Drake, 2 Met. Ky. 146 ; Porn- 
 
 3 Morris ^. MUler, 4 Bur. 2057, 1 shill v. Murray, 1 Bland, 479 ; Taylor 
 W. Bl. 632 ; Birt v. Barlow, 1 Doug. v. Robinson, 29 Maine, 323 ; Henderson 
 171 ; Hemmings ;;. Smith, 4 Doug. 38 ; v. CargiU, 31 Missis. 367 ; Spears v. 
 Catherwood v. Caslon, 13 M. & "W. Burton, 31 Missis. 547; Senser v. 
 261. Bower, 1 Pa. 450 ; Fette u. Foster, 2 
 
 * Peoplet). Humphrey, 7 Johns. 314; Hayw. 102; Leader v. Barry, 1 Esp. 
 
 Steer's Case, 2 N. Y. City Hall Eec. 353; The State v. Winkley, 14 N. H. 
 
 Ill ; Phelan's Case, 6 N. Y. City Hall 480, 494; Young v. Foster, 14 N. H. 
 
 Rec. 91 ; Truman's Case, 1 East P. C. 114 ; Weaver <;. Cryer, 1 Dev. 337 ; 
 
 470; Clayton w. Warden, 4 Comst. 230, Taylor v. Shemwell, 4 B. Monr. 575; 
 
 5 Barb. 214. See Cayford's Case, 7 Fenton v. Reed, 4 .Johns. 52 ; Pord v. 
 
 Greenl. 57. Ford, 4 Ala. 142; Arthur v. Broadnax, 
 
 5 The State v. Wedgwood, 8 Greenl. 3 Ala. 557. 
 75 ; Commonwealth v. Norcross, 9 Mass. 
 
 388 
 
CHAP. XXIV.] THE PRKSUMPTIONS. § 444 
 
 innocence — namely, proof of cohabitation and the reputation 
 of marriage — is held to be sufficient in questions of legiti- 
 macy ; ^ it was so held, even in a case where the plaintiff 
 sought to recover as heir of his deceased brother during the 
 lifetime of his father, who was not called as a witness ; ^ in 
 actions for dower, where a woman seeks to recover as widow of 
 the deceased,^ or where as such widow she seeks to inherit his 
 property ;* in favor of husband and wife who jointly, as such, 
 bring an action of detinue,^ or ejectment,^ or any other ordi- 
 nary civil action ; '^ in an action by the husband, for slander in 
 asserting that he was living in concubinage with the woman 
 whom he claims to be his wife ; ^ in an action against husband 
 and wife, for a breach of the wife's promise made before her 
 marriage to marry the plaintiff,^ or to charge land holden in the 
 name of the wife as the property of the husband ; i" and in 
 settlement cases." It seems, however, to have been held in 
 Kentucky, that evidence of cohabitation and repute is insuffi- 
 cient proof of the marriage, in a suit by the relatives of the 
 supposed wife against the supposed husband, for the property 
 of the supposed wife deceased ; ^^ and, on the other hand, it 
 was said in a previous case, by way of dictum, that proof of 
 reputation merely would be sufficient to establisli a former 
 marriage so as to render void a subsequent one duly proved. ^^ 
 Both these propositions are adverse to the general principle ; 
 and, if in Kentucky they are law, they are not so elsewhere, 
 unless in cases found to rest on some peculiar reason.^* 
 
 § 444. Further of Presumption leading to Conflicting Inferences. 
 
 1 Clayton v. Wardell, 5 Barb. 214 ; « Hammick v. Branson, 5 Day, 290. 
 Senser v. Bower, 1 Pa. 450 ; Eaton v. '' Boatman v. Curry, 25 Misso. 433. 
 Bright, 2 Lee, 85, 6 Eng. Ec. 47 ; 8 Hobdy v. Jones, 2 La. An. 944. 
 Cheseldine v. Brewer, 1 Har. & McH. " Pettingill v. McGregor, 12 N. H. 
 152. 179. 
 
 2 Fleming v. Fleming, 4 Bing. 266, i" Jenkins o. Bisbee, 1 Edw. Ch. 
 12 J. B. Moore, 500. 377. 
 
 3 Young V. Foster, 14 N. H. 114; n Rex v. Stockland, Bur. Set. Cas. 
 Sellman v. Bowen, 8 Gill & J. 50; 508; Newburyport v. Boothbay, 9 
 Chambers v. Dickson, 2 S. & R. 475 ; Mass. 414. 
 
 Graham v. Law, 6 U. C. C. P. 310; l'' Kuhl v. Knauer, 7 B. Monr. 130. 
 Pearson v. Howey, 6 HaUt. 12 ; Stevens " Sneed u. Ewing, 6 J. J. Mar. 460, 
 
 V. Reed, 37 N. H. 49 ; Fleming v. Flem- 491. And see Donnelly v. Donnelly, 8 
 
 Ing, 8 Blackf. 234. B. Monr. 113. Contra in Pennsylyania, 
 
 4 Stover V. Boswell, 3 Dana, 232. Senser v. Bower, 1 Pa. 450. 
 
 6 Crozier v. Gano, 1 Bibb, 267. " See, however, post, § 445. 
 
 389 
 
§ 445 EVIDENCE OP MARRIAGE. [bOOK IV. 
 
 — A right understanding of the doctrine now under discussion, 
 with its reasons, is so important that further illustrations of it 
 seem to be demanded. If, as already observed,^ in the facts 
 of a case it appears that the party has cohabited under two 
 supposed marriages, and the first supposed husband or wife 
 was alive during the second cohabitation, there, as the pre- 
 sumption of innocence would establish marriages in the two 
 instances alike, and as both marriages cannot be lawful ones, 
 the law cannot rest its decision upon this presumption, but it 
 must demand further, and a different kind of proof. Thus it 
 was said, in an Upper Canada case : " If Andrew Breakey, 
 after .cohabiting many years with this defendant, had, during 
 her lifetime, married another woman in this country, he would, 
 by that act, have destroyed the presumption of his marriage 
 with the defendant, which would otherwise have arisen from 
 the fact of cohabitation. He would have shown by it, what 
 the law could not have presumed, that he was willing to in- 
 cur the moral guilt of living with a woman as her husband, 
 when he was not her husband, for, inevitably, this must have 
 been the case in regard to one or the other of the women, 
 when both were, to his knowledge, living at the same time. 
 The consequence then would have been, that, if charged with 
 bigamy in contracting the second marriage, the presumption 
 would rather have been against the fact of the first marriage, 
 for cohabitation would, in such a case, have supplied none in 
 its favor; and the inference would rather be, that he must 
 have been aware there was no sufficient ground for the reputa- 
 tion of the first marriage, or he would not have incurred the 
 guilt of felony, and the danger which attends it, by marrying 
 again. Upon a trial for bigamy, therefore, the prosecutor 
 would have been required to show a good marriage in fact 
 with this defendant." ^ And this whole course of reasoning 
 shows, that, in the opinion of the learned judge, the case of 
 bigamy is only an illustration of the general doctrine, which' 
 prevails in all cases where the reasoning is applicable. In 
 another Upper Canada case it was laid down, that the pre- 
 sumption of marriage arising from cohabitation may be rebutted 
 
 1 Ante, § 441. 2 Breakey v. Breakey, 2 U. C. Q. B. 
 
 349, 358, opinion by Robinson, C. J. 
 
 390 
 
CHAP. XXIV.] THE PRESUMPTIONS. § 445 
 
 by proving the woman to have lived with another man in such 
 a manner as to raise the same presumption of marriage with 
 him.i Yet where the marriage sought to be established — 
 still following up the doctrine — was shown to have existed as 
 a fact, and cohabitation was shown to have followed the fact, 
 this direct proof of an actual marriage was held not to be 
 rebutted by proof of a previous cohabitation merely, by one of 
 the parties, with a former apparently matrimonial partner.^ 
 
 § 445. Continued. — There is a North Carolina case in which, 
 under instructions from the court, in circumstances similar to 
 those attending the last-mentioned Upper Canada case, the 
 jury found in favor of the first marriage, which was proved 
 merely by cohabitation and repute, with the birth of chil- 
 dren and the like, and against the second, where the actual 
 fact of marriage was shown. And the court, by Pearson, 
 C. J., observed : " It is held to be a general rule, that reputa- 
 tion, cohabitation, and the declaration and conduct of the 
 parties are competent evidence of a marriage between them, 
 except in two cases, that is, on an indictment for bigamy, and 
 in an action for crim. con.^ The reason given by Lord Mans- 
 field for making an exception in the action for crim. eon. is, 
 that ' it is penal in its nature and like a criminal proceeding.' 
 But in criminal proceedings, it is confined to an indictment 
 for bigamy, and no particular reason is given for making that 
 exception ; it would seem that what is competent evidence in 
 one case ought to be iu another, provided it satisfied the jury 
 of the fact of the alleged marriage. But these two exceptions 
 are fixed, and stare decisis. We are not, however, disposed to 
 make another exception without a reason ; especially as, in 
 this State, there is no registry of marriages, and frequently 
 circumstantial evidence is the only mode of proving one."* 
 It is only necessary to say of this North Carolina case, that it 
 is at variance, not only with the views here laid down, but also, 
 
 1 George v. Thomas, 10 U. C. Q. B. v. Miller, 4 Bur. 2057 ; Wilkinson v. 
 604. Payne, 4 T. R. 468 ; Wearer v. Cryer, 
 
 2 Wheeler v. Mc Williams, 2 U. C. 1 Der. 337. 
 
 Q. B. 77, 3 ib. 165. 4 Archer v. Haithcock, 6 Jones, N. 
 
 3 Referring to 2 Greenl. Ev. § 762 ; C. 421, 422, 428. 
 Burt u. Barlow, 1 Doug. 171 ; Morris 
 
 391 
 
§ 447 EVIDENCE OP MARRIAGE. [BOOK lY. 
 
 as the writer believes, with the general English and American 
 doctrine. 
 
 § 446. Continued. — Thus, in Vermont, where in a pauper 
 case it was set up that a woman living with a particular man 
 as his wife was not legally such, because, it was said, she was 
 antecedently the legal wife of another, the court required evi- 
 dence of an actual marriage in the previous instance, and 
 declined to hear evidence merely of cohabitation and reputa- 
 tion. ^ In like manner, in New York, where, in a legitimacy 
 case, an actual marriage between the parents was proved, it 
 was held — so it seems, though there were several points in 
 the case, and the judges were not all of one mind — that this 
 fact of marriage could not be overthrown by showing, on the 
 strength of cohabitation and reputation, a pre-existing marriage 
 of one of the parties.^ Thus, also, in England, where two 
 women severally claimed administration of the effects of the 
 deceased as being his widow, and the one who was last married 
 to him offered to show, that his marriage to the other woman 
 was void by reason of his then having alive a former wife, who 
 afterward, and before the last marriage, died, — evidence of 
 cohabitation and repute was held to be insufficient to establish 
 the first marriage, notwithstanding both parties to it were 
 dead ; but, on the other hand, the marriage must, as an actual 
 fact, be proved.^ So where there was considerable evidence of 
 a former marriage to a person who was living at the time when 
 the marriage in controversy was said to have been entered into, 
 strong proof of the second marriage was required.* 
 
 § 447. Application of the Presumption to Questions of Legiti- 
 macy. — The presumption of innocence avails children on the 
 question of their legitimacy. Though a child is not the 
 legitimate offspring of a particular man, — that is, is not his 
 offspring in law any more than in fact, — if not he, but another, 
 begat the child, still, as matter of proof, the child can avail 
 
 1 Poultney v. Fairhaven, Braytou, lan's Case, 6 N. Y. City Hall Reo. 91 ; 
 185. Seuser v. Bower, 1 Pa. 450. 
 
 2 Clayton v. Wardell, 4 Comst. 230, 3 Taylor v. Taylor, 1 Lee, 571, 5 
 5 Barb. 214. See also Houpt v. Houpt, Eng. Ee. 454. 
 
 5 Ohio, 539, Wright, 156 ; Taylor v. * Conran v. Lowe, 1 Lee, 630, 638. 
 Taylor, 2 Lee, 274, 6 Eng. .Ec. 124 ; See also Brown v. Brown, 1 Des. 196. 
 Jackson a. Claw, 18 Johns. 346 ; Phe- 
 
 392 
 
CHAP. XXIV.] THE PRESUMPTIONS. § 448 
 
 itself of this presumption of innocence ; and, though the 
 mother was living in adultery at the time of the conception, 
 yet if the husband had access to the wife, or at all events if he 
 had intercourse with her, the child shall be presumed to be 
 the husband's and not the adulterer's.^ " The law will not," 
 observes Mr. Best, " in that case allow a balance of evidence 
 as to who was most likely to be the father of the child." ^ 
 Said Lord Langdale : " In cases where opportunities have 
 occurred, and in which any one of two or more men may have 
 been the father, whatever probabilities may exist, no evidence 
 can be admitted to show th§it any man other than the husband 
 may have been, or probably was, the father of the wife's child. 
 Throughout the investigation, 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, dis- 
 tinct, satisfactory, and conclusive." ^ To rebut the presump- 
 tion of legitimacy, there must be such affirmative proof on the 
 other side as shall show conclusively, that the husband could 
 not be the father.* And, to make this point more sure, the 
 law will not allow the evidence of husband or wife to be received 
 to establish the fact of non-access.^ 
 
 § 448. Continued. — There is a Tennessee case in which it 
 was held, that, under the circumstances, though the child was 
 begotten and born while the alleged parents were living together 
 as husband and wife, yet it should not be deemed to be the 
 child of the husband. 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 hus- 
 
 1 Hargrave v. Hargrare, 9 Beav. ^ Hargrave v. Hargrave, supra, p. 
 552 ; and the other cases cited to this 555. 
 
 and the next sections. * Phillips v. Allen, 2 Allen, 453. 
 
 2 Best Ev. 2d Lond. ed. 418 ; refer- 5 Rex v. Sourton, 5 Ad. & E. 180, 6 
 ring to Banbury Peerage Case, 1 Sim. Nev, & M. 575 ; Page v. Dennison, 1 
 & S. 153 ; Head v. Head, 1 Sim. & S. Grant, 377, 5 Casey, 420 ; Rex v. Read- 
 150; Morris a. Davis, 5 CI. &E. 163; ing, Cas. temp. Hardw. 79; Patchett 
 Barony of Saye & Sale, 1 H. L. Cas. v. Holgate, 3 Eng. Law & Eq. 100, 15 
 507 ; Wright v. Holdgate, 3 Car. & K. Jur. 308 ; Rex v. Rook, 1 "Wils. 340. 
 158. 
 
 393 
 
§ 448 EVIDENCE OF MARRIAGE. [BOOK lY. 
 
 band], 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 Franklin." ^ This case presents very clearly the 
 point, that, when the evidence shows, to a moral certainty, 
 the husband not to be the father of the child, the law holds it 
 to be illegitimate, though there was access, and there was no 
 physical impossibility in the case. It is difficult to resist the 
 conviction that this doctrine does not accord with the decisions 
 of some other tribunals in this country and in England, what- 
 ever may be our opinion of it, as a matter resting in inherent 
 justice, or general legal reason. Said Lord Langdale, in the 
 case cited in the last section : " A child born of a married 
 woman is, in the first instance, presumed to be legitimate. 
 The presumption thus established by law is not to be rebutted 
 by circumstances which only create doubt and suspicion ; but 
 it may be wholly removed by proper and sufficient evidence, 
 showing that the husband was : 1. Incompetent ; 2. Entirely 
 absent, so as to have no intercourse or communication of any 
 kind with the mother ; 3i Entirely absent, at the period during 
 which the child must, in the course of nature, have been be- 
 gotten ; or, 4. Only present, under such circumsta,nces as 
 afford clear and satisfactory proof that there was no sexual 
 intercourse." ^ It has been intimated in England, that, though 
 the husband had opportunities of sexual intercourse with his 
 wife, yet, if he was living separate from her and she was living 
 in adultery, such intercourse would not be conclusively pre- 
 sumed ; 3 and the House of Lords even held, that, in such a case, 
 presumptive proof may be received, showing no such intercourse 
 to have existed ; but, in the very case in which this was ad- 
 judged, the Lord Chancellor Cottenham, as to the main issue, 
 observed : -" The point to which I am to direct my attention, as 
 a question of fact, is this : whether the circumstances are such 
 
 1 Cannon v. Cannon, 7 Humph. 410, Shelly v. , 13 Ves. Jr. 56, 58 ; 
 
 411- Keg. V. Mansfield, 1 Q. B. 444 ; 1 Gale 
 
 2 Hargrave u. Hargrave; 9 Beav. & D. 7 ; Head v. Head, Turn. & Euss. 
 552, 555. 138, 1 Sim. & S. 150; Goodright v. 
 
 s Cope V. Cope, 5 Car. & P. 604; Saul, 4 T. R. 856, 358, 
 394 
 
CHAP. XXIV.] THE PRESUMPTIONS. § 449 
 
 as to satisfy me that no sexual intercourse did take place 
 between these parties [the husband and wife who were living 
 separate] at the period to which reference is had." ^ And in 
 another case Sir John Leach, M. R., 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 de- 
 clare the children to be legitimate." ^ And the general Amer- 
 ican doctrine is believed to be, on this point, perhaps in 
 accord with these English views.^ At the same time there are 
 American cases, besides the Tennessee one above cited, which 
 lay it down that the ancient rule has been relaxed on this sub- 
 ject,* and that the question is one of fact for the jury.^ If a 
 case like that in Tennessee should arise in another State, in 
 which the question was not definitively settled, a practitioner 
 might deem himself not without hope of success should he urge 
 upon the court the Tennessee doctrine. 
 
 § 449. Continued. — According, therefore, to what appears 
 to be the established English doctrine, and perhaps the doc- 
 trine most prevailing in the United States, there is a difference 
 in the nature of the presumption of innocence, as applied to 
 marriage, or as applied to the legal question of legitimacy. In 
 the former case, the conclusion resulting from this presumption 
 may be shown to be incorrect in fact ; but. in the latter case, 
 although the wife received the em];>races of a paramour, yet if 
 she received also her husband's, the issue shall be presumed to 
 have sprung from the innocent embrace, and this presumption, 
 if there was no incapacity in tlie husband, shall be held in law 
 to be conclusive!. As already intimated, there may be doubt, 
 whether, as matter of correct principle, the Tennessee doctrine 
 should not be preferred; for there seems to be no reason, in 
 justice, for holding a husband to the consequence of this doc- 
 
 i Morris v. Davis, 5 CI. & F. 163, Brock. 256 ; Page v. Dennison, 1 Grant, 
 
 215, 216 ; s. p. p. 242. 377, 5 Casey, 420 ; Phillips v. AUen, 2 
 
 2 Bury V. Philpot, 2 Mylne & K. Allen, 453. See Wright v. Hicks, 12 
 349, 352. To the same effect, see Mor- Ga. 155 ; Bowles v. Bingham, 2 Munf. 
 ris V. Daveis, 3 Car. & P. 215, 427 ; 442, 3 lb. 599. 
 
 Rex V. Luffe, 8 East, 193 ; and see the * Herring v. Goodson, 43 Missis, 
 
 cases cited to the last section. 392. 
 
 3 Kleinert v. Ehlers, 2 Wright, Pa. ^ Blackburn v. Crawfords, 3 Wal. 
 439 ; Van Aemam v. Van Aernam, 1 175. 
 
 Barb. Ch. 875; Stegall v. Stegall, 2 
 
 895 
 
§. 451 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 trine, where all the world, including the judge and the jury, 
 know the fact to be otherwise than the doctrine establishes it 
 as being. At the same time, the presumption of legitimacy 
 should be held very strongly, and no rebutting proof be per- 
 mitted to overturn it except in the clearest case. 
 
 II. The Presumption that Official Persons have done their 
 
 Duty. 
 
 § 450. Doctrine defined — Marriage Record — Publication of 
 Banns. — The same presumption which was considered under 
 the last sub-title, still goes with us, as has already been ex- 
 plained,^ into this. " All persons," observes Mr. Best, " are 
 presumed to have duly dischai'ged any ohligation imposed on 
 them either by written or iinwritten law ;" ^ that is, are pre- 
 sumed to be innocent. And Lord Ellenborough remarked : 
 " Where any act is required to be done on the one part, so that 
 the party neglecting it would be guilty of a criminal neglect of 
 duty in not having done it, the law presumes the affirmative, 
 and throws the burden of proving the contrary, that is, in such 
 case of proving a negative, on the other side." ^ The effect of 
 a record of marriage, kept by the clergyman or kept by the 
 civil authority, in proof of a marriage, will be considered in 
 another chapter. But when such record is received, thei-e is 
 no need to go behind it to Show an antecedent publication of 
 banns, or that the marriage was celebrated in any particular 
 mode, or any other formality which the law may make essential 
 to its constitution ; because the law presumes that all persons 
 connected with the solemnization and with the recording of the 
 marriage have done their duty, and this presumption holds 
 good until the contrary fact is made to appear by proof.* 
 
 § 451. Why — Record, continued — Consent of Parents. — We 
 see, therefore, the reason on which this doctrine rests. It is, 
 in other words, that persons so situated are presumed not 
 
 1 Ante, § 435. Add. 58, 2 Eng. Ec. 26, 33. And see 
 
 2 Best Ev. 2d Lond. ed. 415, Wray v. Doe, 10 Sm. & M. 452. Other- 
 
 3 Williams v. East India Co., 3 East, wise of a register kept only as a matter 
 192, 199. of custom, but not in pursuance of any 
 
 * Milford u. Worcester, 7 Mass. 48 ; law establishing it. Saunders v. Saun- 
 St. Devereux v. Much Dew Church, 1 ders, 10 Jur. 143 ; Lloyd v. Passingham, 
 W. Bl. 367 ; Steadman v. Powell, 1 Cooper, 152. 
 
 396 
 
CHAP. XXIV.] THE PBBSUMPTIONS. § 452 
 
 needlessly to expose themselves to the penalties of the law ; i 
 and this reason applies, whether the statute upon the subject 
 contains an express penalty for disobedience, or not ; for a 
 legislative act of this sort, inflicting no penalty, is in the 
 highest degree penal, a breach of its requirements being pun- 
 ishable by fine and imprisonment.^ There are some English 
 cases wherein, on trials for polygamy, while marriages were in 
 Eugland regulated by Stat. 26 Geo. 2, c. 33, it appearing that 
 the marriage to be proved was by license, and that the statute 
 made the marriage void when celebrated without the consent 
 of parents, the party being under age, and the statute requir- 
 ing the registering officer in such cases to state in the record 
 the fact of the parental consent being given, — where the 
 record was produced in evidence, and on its face it was defec- 
 tive in omitting tliis matter of the parental consent, — the 
 judges lield, that, when the prisoner had shown himself by 
 proof to have been under age at the time mentioned in the 
 record, it devolved on the prosecutor to prove the consent of 
 his parents.^ Since, as we have already seen, the law ordi- 
 narily presumes the consent of parents where the actual sol- 
 emnization of the marriage of a minor has been shown,* the 
 doctrine of these cases may perhaps be reckoned as belonging 
 to the strong meat of the law. At the same time, when we 
 bear in mind that, the case being a criminal one, the question 
 is, whether the official person or the defendant is the one who 
 committed crime, and presumption balances presumption, 
 the adjudication does not differ much in point of principle 
 from one already stated by the Wisconsin court.^ 
 
 III. The Presumption of Life. 
 
 § 452. What it is — Conflicting ■with Presumption of Innocence 
 — "When Death presumed. — Sometimes the presumption of 
 innocence is found to be in conflict with the presumption of 
 the continuance of life ; and, in such a case, if there is no evi- 
 dence to show what the fact really is, the one or the other of 
 
 1 Piers V. Piers, 2 H. L. Cas. 331. Eex o. Morton, Russ. & Ky. 19, note ; 
 
 2 2 Burn Ec. Law, 489 ; 1 Bishop Rex v. Butler, Russ. & Ry. 61. 
 Crim. Law, 5th ed. § 237, 288; Bishop < Ante, § 294. 
 
 Stat. Crimes, § 138. » Ante, § 440 a. 
 
 ? Rex i;. James, Russ. & Ry. 17 ; 
 
 397 
 
§ 453 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 these presumptions must give way. The general presumption 
 of life, where a person is absent and not heard from, is, that 
 the life is continuing if the absence has not extended to seven 
 years ; but after seven years death is presumed. Seven years 
 must elapse before the presumption of death arises ; but, wlien • 
 this period is passed, there is no presumption- that the life 
 continued during the entire period, or that it was extinguished 
 at any particular time within it. Indeed the rule of seven 
 years is not an absolute one ; but any circumstances may be 
 shown creating a probability that life did not continue so 
 long.^ Thus stands the question upon the naked presumption 
 of life or death ; but, when the presumption of innocence is 
 brought in to oppose in a particular instance the presumption 
 of life, it is often found to be the more powerful of the two, 
 and thus to overbear the weaker one. How this is, upon the 
 authorities, we sliall now see. 
 
 § 453. Second Marriage where Former Consort living at Ante- 
 cedent Date. — When a marriage is directly proved, but a pre- 
 vious marriage is shown in answer to this proof, and it is 
 shown that the former husband or wife was living within seven 
 years, the law makes no absolute decision between the two 
 conflicting presumptions of innocence and of life, but in a gen- 
 eral way it prefers the presumption of innocence.^ The ques- 
 tion of life or death in such a case is, however, one of fact for 
 the jury .2 And the finding by a jury has been considered just 
 which sustained a marriage entered into after one year's 
 absence of a party to a former marriage ; * and another, which 
 refused to sustain a marriage celebrated within twenty-five 
 days after the time when such absent party was known to be 
 alive.5 Where the court below refused to instruct the jury 
 that the death of the former husband should be presumed at 
 the time of the second marriage, which took place two years 
 after he was last known to be alive, and the jury found against 
 
 1 1 Greenl. Ev. § 41 and note ; Eex Stat. Crimes, § 611. See, also, Gibson 
 V. Harborne, 2 Ad. & E. 540 ; Gofer v. v. The State, 38 Missis. 313 ; Dixon v. 
 Thurmond, 1 Kelly, 538 ; Newman v. People, 18 Mich. 84. 
 
 Jenkins, 10 Pick. 515 ; Wambaugh 3 Reg. u. Lumley, Law Eep. 1 C. C. 
 
 V. Schenck, Pennington, 229 ; The 196. 
 
 State z). Moore, 11 Ire. 160; Gilleland * Rex v. Twyning, 2 B. & Aid. 
 
 V. Martin, 3 McLean, 490. 886. 
 
 2 Senser J). Bower, 1 Pa. 450 ; Bishop 5 Rex v. Harborne, 2 Ad. & E. 540. 
 
 398 
 
CHAP. XSIV.J THE PRESUMPTIONS. § 454 
 
 the second marriage, the verdict was set aside and a new trial 
 ordered.^ It has been questioned whether the last case did 
 not err in making the presumption of innocence over tliat oi 
 life one of law rather than of fact.^ At the same time, looking 
 at this question as one of fact, which undoubtedly it was, the 
 verdict showed such misapprehension of true principles on 
 the part of the jury, as might well justify a court in setting it 
 aside for this reason. 
 
 § 454. Continued. — Perhaps it would be well for the courts 
 to establish, were it possible, some rule to determine when the 
 presumption of life should, if ever, overcome the presumption 
 of innocence. But plainly this has not yet been done, nor does 
 it seem possible it should be ; so we must grope after the facts 
 of particular cases, and derive from them such light as we 
 may .3 Doubtless the cases are rare in which there is not some 
 circumstance, or some piece of testimony, co-operating with the 
 one or the other of these presumptions.* Tims, in a Texas 
 case, the doctrine appears to have been laid down, that a con- 
 viction may be had on an indictment for an unlawful marriage, 
 founded upon a strong presumption of the life of the first hus- 
 band or wife, without express proof of the fact. In this partic- 
 ular instance, the first wife was shown to have been alive four 
 months preceding the second marriage ; and there was the 
 further ingredient, that, after the second marriage, the husband 
 had said his first wife was still living, — a statement which he 
 might not have known to be true, as her residence was some 
 three hundred miles away. But tlie judge very correctly said, 
 
 1 Greensboroughu.TJnderhill, 12 Vt. Eeg. v. Lumley, Law Eep. 1 C. C. 196, 
 604. 198, "it w.ere proved that he was in 
 
 2 Northfield v. Plymouth, 20 Vt. 682, good health on the day preceding the 
 590. See also Lapsley u. Grierson, 1 second marriage, the inference would 
 H. L. Cas. 498, 505 ; Sneed u. Ewing, be strong, almost irresistible, that he 
 5 J. J. Mar. 460, 492; Starr v. Peck, was living on the latter day, and the 
 1 Hill, N. Y. 270: Jackson v. Claw, 18 jury would in all probability find that he 
 Johns. 346 ; Yates v. Houston, 3 Texas, was so. If, on the other hand, it were 
 433. proved that he was then in a dying 
 
 ' In the following cases the pre- condition, and nothing further was 
 
 sumption of innocence prevailed, and it proved, they would probably decline 
 
 is very plain that the result was just ; to draw that inference. Thus the 
 
 Yates V. Houston, 3 Texas, 483 ; Chap- question is entirely for the jury. The 
 
 man v. Cooper, 5 Rich. 452; Canady law makes no presumption either 
 
 i>. George, 6 Rich. Eq. 103. way." 
 
 * " If, for example," said Lush, J. in 
 
 399 
 
§ 455 EVIDENCE OF MARRIAGE. [BOOK IV. 
 
 that, be his statement according to the real fact or not, yet, 
 since he believed it true, it shows a willingness on his part to 
 violate the law, and so " takes away from him the opposing 
 presumption of innocence. 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 con- 
 victed.i But if there had been no confession, the case evidently 
 would have worn a very different aspect, though possibly even 
 then a conviction might have been just. A woman petitioned, 
 in Mississippi, for dower as the widow of a certain man de- 
 ceased. Her claim was resisted on the ground that this man 
 had, at the time of the marriage, a wife still living in Georgia. 
 It was proved, that, four years before the marriage, this man 
 was living with a woman whom he treated as his wife ; and 
 that, after the marriage, he, in the presence of this his second 
 wife, said his first wife was living. Yet the second marriage 
 was held to be good. Said Fisher, J. : " The fact that the de- 
 ceased was living, in 1844, with a woman believed to be his 
 wife, is no evidence that she was living on the 6th of December, 
 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, can- 
 not be used to the prejudice of the petitioner. By consummat- 
 ing the marriage, he admitted that he could then legally enter 
 into the alliance. The 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." ^ 
 
 § 455. Continued. — There is an old Massachusetts case, 
 which, as reported by Mr. Dane, is hardly reconcilable with the 
 foregoing views. There, on a suit brought by a woman for 
 dower out of the estate of one Stephens, whose wife she had 
 been, and a plea in bar that she had eloped from him and lived 
 in adultery with one Welman, whereby she had forfeited her 
 dower, it appeared, the suit being in 1789, that, in April, 1775, 
 
 1 Gorman v. The State, 23 Texas, 2 Hull v. Eawls, 27 Missis. 471. And 
 646, 648, 649. see Myatt v. Myatt, 44 lU. 473. 
 
 400 
 
CHAP. XXIV.J THE PRESUMPTIONS. § 457 
 
 she and Stephens were living together at Salem as husband 
 and wife, that he sailed on a voyage for the West Indies, was 
 shipwrecked, and with his crew taken up and carried to Charles- 
 ton, South Carolina. In September of the same year, infor- 
 mation came that he was enlisted in the South Carolina army. 
 In the February following she went to keep Welman's house, 
 and was married to him in August or September, 1776, about 
 a year from the time when her former husband was last knovn 
 to be alive. There was a verdict and judgment for the defend- 
 ant. " The court," says the reporter, " held that all her con- 
 nections with Welman were adulterous, and her marriage with 
 him totally void ; and that she clearly lost her dower in Ste- 
 phens's estate by these illegal connections with Welman." ^ 
 
 § 456. Continued. — The reader should remember that, ac- 
 cording to the doctrine which presumes a person to be dead 
 after an absence, unheard from, of seven years, there is still no 
 presumption as to the particular time, when, within the seven 
 years, the death took place.^ Therefore in such of the fore- 
 going cases as did not come to litigation till more than the 
 seven years had elapsed, there was no great need of help from 
 the presumption of innocence in order to sustain the marriage ; 
 and it is always material to consider, not alone the period which 
 intervened between the last knowledge of the life of the former 
 husband or wife and the second marriage, but also between it 
 and the date when the litigation is conducted. 
 
 IV. The Q-eneral Presumption in Favor of Marriage. 
 
 § 457. The Doctrine what. — This presumption was men- 
 tioned and somewhat commented upon in an earlier section of 
 this volume.^ Semper prcesumitur pro matrimonio. Every in- 
 tendment of the law is in favor of matrimony. When a mar- 
 riage, therefore, has once been shown, however celebrated, 
 whether regularly or irregularly, or however proved, whether 
 
 1 Mass. S. J. Court, Not. T. 1789, defence of elopement and living in adul- 
 
 Welman v. Nutting, 2 Dane Abr. 305. tery is not good in bar of dower in this 
 
 For a late Massachusetts decision on State. Lakin v. Lakin, 2 Allen, 45. 
 the presumption of death in such cases, 2 Ante, § 452. 
 
 see Kelly v. Drew, 12 Allen, 107. It • 3 Ante, § 13. 
 is now held in Massachusetts that the 
 
 VOL. I. 26 401 
 
§ 458 EVIDENCE OP MARRIAGE. [bOOK IV. 
 
 directly or by circumstantial evidence, the law raises a strong 
 presumption in favor of its legality : so that the burden is with 
 the party objecting, throughout, and in every particular, to 
 prove, against the constant pressure of this presumption of law, 
 that it is illegal and void. And it has been considered, that 
 the validity of a marriage cannot be tried like any other ques- 
 tion of fact which is independent of presumption ; because the 
 law, besides casting the burden of proof upon the objecting 
 party, will still presume in favor of the marriage, and this pre- 
 sumption increases in strength with the lapse of time through 
 which the parties are cohabiting as husband and wife.^ It be- 
 ing for the highest good of the parties, of the children, and of 
 the community, that all intercourse between the sexes in its 
 nature matrimonial should be such in fact, the law, when ad- 
 ministered by enlightened judges, seizes upon all presumptions 
 both of law and of fact, presses into its service all things which 
 can help it in each particular case, to sustain marriage and 
 repel the conclusion of unlawful commerce. 
 
 § 458. Illustration. — This principle was Strongly illustrated 
 in a case which went before the House of Lords on an appeal 
 from Ireland. The marriage was celebrated at a private 
 house in the Isle of Man, between parties who had for a long 
 time lived together apparently as husband and wife. Issue 
 had sprung from this connection, and more was expected, on 
 account of which the parties now determined to enter into a 
 valid marriage. The local marriage act provided, that all 
 marriages celebrated in any other place than the parish church 
 or chapel of the parties should be void, unless they had 
 obtained a special license under the proper hand and seal epis- 
 copal of the bishop. The question in this case was, whether.^ 
 the marriage, proved to have been celebrated in a private 
 house, was void by reason of there having been no such 
 
 1 Piers I/. Piers, 2 H. L. Cas. 231 ; Smith v. Huson, 1 Phillim. 287, 294 ; 
 
 Steadman v. Powell, 1 Add. Ec. 58, 2 Diddear v. Faucit, 3 Phillim. 880 ; 
 
 Eng. Ec. 26, 30 ; Catterall v. Sweetman, Rogers Ee. Law, 2d ed. 631, note ; Hub- 
 
 1 Robertson, 304, 310, 321 ; Legeyt v. back on Succession, 262 ; Wilkinson 
 
 O'Brien, Milw. 325, 333 ; Maxwell v. v. Gordon, 2 Add. Ec. 152, 2 Eng. Ec. 
 
 Maxwell, Milw. 290; Else v. Else; 257,260; Ward w. Dulaney, 23 Missis. 
 
 Milw. 146, 151; 2 Dane, Ab. 297; 410; CaujoUe r. Eerrie, 26 Barb. 177. 
 402 
 
CHAP. XXIV.] THE PRESUMPTIONS. § 459 
 
 special license. There was no record that a license had been 
 taken out; but this seemed not at all conclusive, because it 
 was shown that the records had been inaccurately kept. The 
 bishop, however, testified in the most unequivocal terms to 
 his clear recollection of the parties, and to his belief that no 
 such license had been granted by him ; and he deposed, that 
 he should not have granted a license 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 change in the character of their 
 cohabitation. Yet in respect to this testimony, the facts 
 testified to had occurred many years ago. The Lords, over- 
 ruling the decision of the 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 marriage by his predecessor in 
 ofi&ce, and not recorded.^ 
 
 § 459. Conclusion. — This last-mentioned presumption is 
 one of such a nature, that it will be better considered in 
 connection with the whole course of the proof of marriage, 
 than in sections separately devoted to it. Let now the reader, 
 therefore, carry in his mind the four presumptions discussed 
 in this chapter, and especially the first and last ones, while we 
 proceed, in other chapters, to finish the subject. 
 
 1 Piers V. Piers, 2 H. L. Cas. 331. in connection with this case, Black- 
 And see particularly the remarks of burn v. Crawfords, 3 Wal. 175, involv- 
 Lord Campbell, p. 379-381. Consult, ing facts somewhat similar. 
 
 403 
 
§ 461 EVIDENCE OP MAREIAGE. [BOOK IV. 
 
 CHAPTBE XXV. 
 
 RECORDS AND CERTIFICATES OP MARRIAGE, AND THE LIKE, 
 CONSIDERED AS EVIDENCE OF THE RECORDED FACT. 
 
 460-462. Introduction. 
 
 463-469. What is a Sufficient Record. 
 
 470. What a Sufficient Certificate of the Record. 
 
 471-473. Certificates, not of a Record of Marriage, but of Marriage. 
 
 473 a. Private Memoranda in the Nature of Records. 
 
 474-478. Special Considerations as to Foreign Records. 
 
 479-481. Proofs ancillary to the Record. 
 
 § 460. General Doctrine. — Having devoted a chapter to a 
 consideration of those several presumptions upon which the 
 proof of marriage in a great measure depends, we may not 
 inappropriately proceed in another separate chapter to take a 
 view of the record proof which almost always may be, and 
 often is, introduced in these cases. And let it be noted here, 
 that the record, when produced, stands not as a presumption, 
 but as a fact. It is therefore equally available in actions for 
 criminal conversation, and in indictments for polygamy and the 
 like, as in ordinary civil causes. 
 
 § 461. Continued — On what Principle — How. — If the 
 reader will look into any book on the general law of Evidence, 
 ^ as, for instance, into Mr. Greenleaf's book, — he will see 
 the principle upon which this kind of proof is admissible.' 
 If, then, there is a public officer intrusted with the duty of 
 making and preserving a record of a public nature and 
 interest, the presumption of law is, that the ofiicer does his 
 duty, — a point discussed in our last chapter,^ — and there- 
 fore, and perhaps for some still further reasons, the record is 
 receivable as evidence of the fact before any court of justice. 
 The book itself may be presented, or a certificate of the 
 particular record required may be made by the officer having 
 charge of the book, and this certificate will be received the 
 same as the book ; or any third person, competent to be a 
 
 1 1 Greenl. Ev. § 483 et seq. 2 Ante, § 450, 451. 
 
 404 
 
CHAP. XXV.] RECORDS AND CERTIFICATES OF MARRIAGE. § 463 
 
 witness in court, may in like manner extract from the book 
 the particular record needed, and present it, under the sanc- 
 tion of his oath, before the tribunal. The book, or the certifi- 
 cate of the keeper of the book, as the case may be, requires no 
 oath to make it admissible ; though, perhaps, under some cir- 
 cumstances, it may be necessary to introduce to the court 
 some evidence that the book came from the proper custody, or 
 that the certificate is a genuine instrument, emanating from 
 the official person. 
 
 § 462. How the Chapter divided. — What we are now spe- 
 cially to consider is the record, or the certificate, which proves 
 the marriage. We shall divide this matter as follows : I. 
 What is a Sufficient Record ? II. What is a Sufficient Certifi- 
 cate of the Record ? III. What is the Law respecting Certifi- 
 cates of Marriage which do not purport to be Certificates of 
 any Record ? IV. How of Private Memoranda in the Nature 
 of Records ? V. Special Considerations as to Foreign Records. 
 VI. What Ancillary Proof must attend the Proof by Record ? 
 
 I. What is a Sufficient Record? 
 
 § 463. General Doctrine — Hovsr much the Record proves. — In 
 the cases which have most frequently arisen, the thing 
 offered in evidence was, not the original record of the mar- 
 riage, but the certificate of the record. Yet in determining 
 the admissibility of the latter, the sufficiency of the former was 
 the first matter to be considered. The general doctrine is, 
 that where, as in England, and probably all of our States, the 
 law requires marriages to be registered, the record kept in pur- 
 suance of law, or the certificate, or otherwise proved copy of it, 
 is admissible in evidence to establish the fact of the marriage.^ 
 But it proves no facts beyond those which the law requires to 
 be entered in the register.^ And the record is evidence of no 
 
 1 Milford V. Worcester, 7 Mass. 48, Scam. 231. See Shorter v. Boswell, 2 
 
 57 ; Jackson v. King, 5 Cow. 237 ; 1 Har. & J. 359 ; Trammell v. Thurmond, 
 
 Phil, on Ev. with C. & H. notes, 410 ; 17 Ark. 203. And see ante, § 450, 451. 
 2 Burn Ec. Law, 488 ; Damon's Case, 2 Wihen .;. Law, 3 Stark. 63 ; 1 
 
 6 Greenl. 148 ; Tlie State v. Wallace, Burge, Col. & Eor. Laws, 83. And 
 
 9 N. H. 515; Wedgwood's Case, 8 see Woods v. Nabors, 1 Stew. 172; 
 
 Greenl. 75 ; Jacocks v. GiUiam, 3 Perry v. Block, 1 Misso. 484. 
 Murph. 47, 52; Jackson v. People, 2 
 
 405 
 
§ 465 EVIDENCE OP MARRIAGE. [BOOK IT. 
 
 higher grade than is the testimony of witnesses ; consequently 
 it may be contradicted, or shown to be a forgery, or the act of 
 an unauthorized person ; ^ it is not, in contemplation of law, 
 "the best evidence."^ 
 
 § 464. Continued — Special Vie'ws as to Criminal Cases. — 
 There is a late Michigan case in which the judge observed : 
 " By the English law, a register of marriage is not a clergy- 
 man's certificate, but is signed by the parties in the presence 
 of witnesses. Proof of a register there is proof of the act of 
 the party as much as proof of his signature to a deed would be. 
 But a certificate merely signed by the minister, while it may 
 perhaps avail in civil proceedings, if properly supported, can- 
 not avail in criminal trials, where the defendant is entitled to 
 confront the witnesses." ^ In the case in which these observa- 
 tions occur, the paper presented to the court was properly 
 rejected ; but, if the learned judge intended to intimate, that 
 the evidence of a record of marriage, kept as such records are 
 authorized to be kept by the laws of this country generally, is 
 inadmissible in a criminal cause, the intimation is certainly not 
 in accord with our judicial decisions in general. And where 
 there is to be proof of a marriage by record, or by any other 
 evidence which does not depend upon the presumption of 
 innocence, there is required no other or different evidence in 
 criminal causes, from what is admissible, or is sufficient, in 
 civil .causes.* 
 
 § 465. Marriage Registers in England. — Marriage registers, aS 
 kept under the statutes which for many years have existed in 
 England, are indeed signed by the parties in the presence 
 of witnesses ; but the reason why they are admissible is, not 
 because they are so signed, — for if this was the reason, a cer- 
 tified or examined copy would not be receivable, the original 
 must be presented, — but because they are a public record, 
 kept in a public place, under the authority of the law.* And it 
 
 1 Rice V. The State, 7 Humph. 14. * And see ante, § 441 ; The State v. 
 And see Cunninghams v. Cunninghams, Wallace, 9 N. H. 515 ; Wedgwood's 
 2 Dow. 482. Case, 8 Greenl. 75 ; Jackson v. People, 
 
 2 Woods V. Woods, 2 Curt. Ec. 516, 2 Scam. 231 ; Commonwealth v. Little-. 
 7 Eng. Ec. 181, 184. John, 15 Mass. 163. 
 
 . ^ People V. Lambert, 5 Mich. 349, 5 And see 2 Taylor Ev. 3d ed. 
 364, 365. § 1430. 
 
 406 
 
CHAP. XXV.J RECORDS AND CERTIFICATES OP MARRIAGE. § 466 
 
 is said, in a reporter's note in Carrington & Payne's Reports ; 
 " We believe the parties married did not sign their names in 
 the Fleet Registers, nor indeed in any marriage register, pre- 
 vious to Stat. 26 Geo. 2, c. 33." i There has been some dis- 
 cussion in the English books, whether the registers of Fleet 
 marriages were admissible in evidence ; and, though there were 
 judges inclined to receive them, the question appears to have 
 been ultimately settled adverse to their reception ; " because," 
 said Lord Kenyon, " they [the books] come from tainted quar- 
 ters." ^ How they are " tainted," we have already seen ;^ and 
 the only wonder in the matter is, that any judge should ever 
 have doubted whether they should not be rejected. Whether 
 the register of an English dissenting chapel should be deemed, 
 in England, to be " tainted," is perhaps not quite clear ; but, 
 in a suit in the ecclesiastical court. Sir John NichoU' refused to 
 allow copies of such a register to be pleaded ; saying, " Extracts 
 from a register of this description must be considered as mere 
 private memoranda. The books themselves, however, may be 
 produced at the hearing of the cause, and be made evidence to 
 a certain extent ; by this means the party will have the benefit 
 of them, though in a different manner from that in which they 
 have now been attempted to be introduced." * And Baron 
 Parke, in one case, rejected a marriage register kept by a cler- 
 gyman, — observe, by a single clergyman only, — prior to the 
 Irish marriage act of 1845 going into operation.® 
 
 § 466. Parish Registers, generally. — In England, parish regis- 
 ters are always admissible in evidence to prove whatever is 
 properly recorded there ; ^ and they were so to prove a marriage 
 .before Stat. 26 Geo. 2, § 38, "upon," said Holt, C. J., "the 
 nature of the thing." ^ This, of course, refers to registers of 
 the Church of England, kept by its authorities ; which, we have 
 
 1 Davies v. Gatacre, 8 Car. & P. 578, * Newham v. Eaithby, 1 Phillim. 
 note. 315, approved in Warren v. Bray, 8 B. 
 
 2 Eeed v. Passer, Peake, 231, 1 Esp. & C. 813, 818. 
 
 213; Davies v. Gatacre, supra; Lloyd 5 Stockbridge u. Quicke, 3 Car. & 
 
 V. Passingham, 16 Ves. 59, 232 ; Nokes K. 305. 
 
 V. Milward, 2 Add. Ec. 386, 2 Eng. Ec. « May v. May, 2 Stra. 1073 ; Stainer 
 
 356. V. Droitwich, 1 Salk. 281; Love v. 
 
 » Ante, § 293. And see the re- Bentley, 11 Mod. 134. 
 porter's note to Davies v. Gatacre, ' Stainer v. Droitwich, supra, 
 supra. 
 
 407 
 
§ 467 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 seen,i were therefore the authorities of the crown and govern- 
 ment of England. Consequently it does not follow that the 
 same should be held of a record kept by a religious society in 
 this country. Neither, on the other hand, can we draw any con- 
 clusion from the fact, that the records of Fleet marriages, and 
 of marriages the record whereof was kept in dissenting chapels, 
 were rejected in England. For in this country, our religious 
 societies of all denominations are equally cherished by the gov- 
 erning power, yet none of them are placed on any foundation 
 like that whereon rests the Church of England. 
 
 § 467. American Doctrine. — In Pennsylvania there is a 
 statute of an ancient date providing, " that the registry kept 
 by any religious society in their respective meeting-book or 
 books, of any marriage, birth, or burial within this province or 
 the territories thereof, shall be held good and authentic, and 
 shall be allowed of on all occasions whatever." And such a 
 record being produced to prove the time of a death, Tilghman, 
 C. J., observed : " This act is in conformity to the principles of 
 the common law. The registry is good evidence of the death ; 
 but, before it is admitted, proof must be made of its authen- 
 ticity. The act is silent as to the mode of proving this ; we 
 must therefore have recourse to the common-law proof, which 
 is by producing the original registry, or a copy proved by the 
 oath of a witness who has compared it with the original. It 
 was contended that the German Reform Congregation being a 
 body corporate, a certificate under the seal of the corporation 
 was evidence of the truth of the copy. But I know of no 
 such principle. Corporations, being invisible bodies, can 
 make a contract only by their seal, which is visible. This, 
 is from necessity. But there is no necessity for their cer- 
 tifying copies of their acts."^ And to some extent, at least, 
 the doctrine of this case has, without the aid of a statute, 
 been acted on in this country.^ At the same time, this is 
 ground upon which the practitioner must tread cautiously, if 
 at all ; it cannot be said, that, on this precise question, any 
 doctrine is exactly established as American law.* 
 
 1 Ante, § 48. 4 ggg the discussions in Kennedy v. 
 
 2 Stoever v. Whitman, 6 Binn. 416. Doyle, 10 Allen, 161. 
 8 Hunlly V. Compstook, 2 Root, 99 ; 
 
 Maxwell v. Chapman, 8 Barb. 579. 
 
 408 
 
CHAP. XXV.J RECOBDS AND CERTIFICATES OP MARRIAGE. § 468 
 
 § 468. Form of the Record. — The cases do not mucli en- 
 lighten us, as to the form in which the record must be kept, in 
 order to be admissible. This undoubtedly will depend some- 
 what upon the particular statute ; yet, in the nature of the case, 
 if the statute does not prescribe an exact form, the keeper of the 
 record must be permitted to exercise a wide discretion respect- 
 ing it. In one instance, the record, which was admitted, was 
 in these words : " Mr. Amasa C. Yittum and Miss Huldah 
 Wallace, both of Sandwich, were married January 31, 1828, by 
 Jeremiah Furber, Justice Peace. Recorded March 31, 1828, 
 by Charles White, Town Clerk." i In another case, the ad- 
 mitted record ran : " Mr. Isaac Wedgwood and Miss Judith 
 Kelly, both of Lewiston, were joined in marriage July 15, 1821. 
 Dan. Reed, Justice of the Peace." ^ The record in still another 
 case was — but this was a record from another State, and it was 
 rejected : " This is to certify, that Robert T. Lambert, of Hud- 
 son, in the State of New Jersey, and Nancy J. Mulholland, of 
 Jersey City, in the State of New Jersey, were by me joined 
 together in holy matrimony, on the first day of January in the 
 year of our Lord one thousand eight hundred and fifty-five. 
 (Signed) E. W. Adams, Minister of the Gospel." " In pres- 
 ence of." " Received in the office, and recorded September 12, 
 1857." This case has already been alluded to ; ^ and while, on 
 the whole, we cannot dissent from the conclusion of the court 
 which rejected the record, there were employed by the learned 
 judge some words not quite according with the general doc- 
 trine. He said, of the certificate of the record : " It bears no 
 date, and does not either declare where the marriage took place, 
 or show where the minister resided. It does not show, there- 
 fore, that he acted within his jurisdiction, or that the marriage 
 took place, as charged in the indictment, in New Jersey. And 
 it does not appear to have been made at or near the time of the 
 marriage. On the contrary, its record being made after the 
 arrest of the prisoner, there is room for presumption the other 
 way." * There is grave doubt, whether, to constitute a good 
 record of a marriage, tlie fact must be recorded at or even near 
 
 1 The State v. Wallace, 9 N. H. 515. ' Ante, § 464. 
 
 2 Wedgwood's Case, 8 Greenl. 75. ■* People v. Lambert, 5 Mich. 349 , 
 As to this case, however, see post, 852, 365. And see NUes v. Sprague, 13 
 § 473. Iowa, 178. 
 
 409 
 
§ 470 EVIDENCE OP MARRIAGE. [BOOK IT. 
 
 the time when it transpired ; ^ though this would depend some- 
 what on the language of the statute under which the record 
 is made and kept ; and, on general principles, there might be 
 dilatoriness, or there might be circumstances attendant on the 
 making up of the record, as in this case, justly leading to its 
 rejection. But to require the record to specify the place of resi- 
 dence of the solemnizing officer, and the locality in which the 
 marriage took place, upon the idea of making a jurisdiction over 
 the matter appear, seems, to the writer, to be going beyond 
 •what is reasonable and customary in such cases. Of course, it 
 cannot be necessary to name the State in which the marriage 
 took place ; for this is, in the nature of things, presumed to be 
 the State in which the record is made. Even in things so strict 
 as dilatory pleas, there is, in the law, something left to intend- 
 ment ; and surely there should be, in a marriage record.^ 
 
 § 469. Continued. — Where the record from the books of the 
 town was " James Priest, Jr., married October 1, 1795, by 
 James Smith, Justice," omitting to name the person to whom 
 he was married, this was held good in evidence of the fact of 
 the marriage of Priest ; leaving the person to whom, and the 
 identity, to be supplied by parol testimony. It was. also held 
 to be unnecessary that the record should be signed by the 
 town clerk. It is sufficient if it is in his handwriting.^ A 
 marriage license is not a record, neither is a bond which is 
 given when it is obtained ; " nor," it was observed in a 
 Kentucky case, " was it necessary or proper that either of 
 them should have been recorded."* For further light on the 
 subject treated of in this sub-title, the reader, who is searcliing 
 for every thing, may not unprofitably consult the cases here 
 referred to in a note.^ 
 
 II. What is a Sufficient Certificate of the Record ? 
 § 470. General Doctrine. — There is no need for any general 
 
 1 France v. Andrews, 15 Q. B. 756. 5 Coale o. Harrington, 7 Har. & J. 
 But see Warren !). Bray, 8 B. & C. 813, 147; Fox v. Lambson, 3 Halst. 275; 
 816. Tandy v. Masterson, 1 Bibb. 330 ; The 
 
 2 See Viall v. Smith, 6 R. I. 417. State v. Hasty, 42 Maine, 287 ; Sharjj 
 ' Northfield v. Plymouth, 20 Vt. v. Wickliffe, 8 Litt. 10 ; Gait v. Gallo- 
 
 582,589. And see post, §481. way, 4 Pet. 332; Griffin v. Reynolds, 
 
 < Commonwealth v. Eodes, 1 Dana, 17 How. U. S. 609 ; Jenkins v. Davies, 
 
 595. 10 Q. B. 814. 
 410 
 
CHAP. XXV.] RECORDS AND CERTIFICATES OF MARRIAGE. § 472 
 
 discussion under this sub-title ; the certificate, to be admissible 
 as such, must be made by the proper person having the charge 
 of the record ; ^ it must state the contents of the record, or so 
 much thereof as concerns the particular matter, it being insuf- 
 ficient if it purports to be only a certificate of the parol fact, in 
 distinction from a certificate of tlie record ; ^ and, as we have 
 seen,3 the opinion was in one case expressed that it must bear 
 a date, — a point, however, upon which grave doubt may be 
 raised ; though a date is, of course, highly proper. 
 
 III. Certificates, not of the Record of a Marriage, hut of the 
 Marriage itself. 
 
 §471. Certificate accompanying Act of Marriage^ — Kept by- 
 Party, &c. — In a nisi prius case before Baron Parke, there was 
 the proof of a marriage, by a witness who was present ; and 
 it was testified also, that the officiating clergyman gave to the 
 woman a certificate of her marriage, which certificate was pro- 
 duced. The learned judge admitted the certificate in evidence.* 
 This decision proceeded upon the principle, that the certificate 
 was a part of the original transaction. And there are various 
 circumstances in which a marriage certificate, delivered to the 
 party at the time of the marriage, or kept afterward by the 
 party, or shown by the party, may be admissible, on one ground 
 or another, in support of the allegation of marriage.^ This is 
 an entirely different thing from the certificate of a marriage 
 record. 
 
 § 472. Clergyman's Marriage Certificate. — But where a mar- 
 riage certificate — that is, a certificate of the fact of marriage, 
 signed by a clergyman or a justice of the peace who purports 
 therein to have solemnized the marriage — is presented as con- 
 stituting in itself evidence, it is, in England, rejected.^ Such 
 appears to be the English law ; of which, however, the evidence 
 
 1 Commonwealth v. Chase, 6 Cush. Piers, 2 H. L. Cas. 331. In Common- 
 248; Coons v, Renick, 11 Texas, 184. wealth v. Morris, 1 Cush. 391, the cer- 
 
 2 Oaices v. Hill, 14 Pick. 442 ; 1 tifioate of a foreign marriage came from 
 Greenl. Ev. § 498. the possession, not of the defendant, 
 
 ' Ante, § 468. but of his alleged wife, and it was re- 
 
 < Stockbridge v. Quicke, 3 Car. & K. jeeted. 
 
 305. ^ Anonymous, Lofft, 328 ; Nokes v. 
 
 6 Hill V. Hill, 8 Casey, 511 ; Hub- Milward, 2 Add. Ec. 386, 2 Eng. Ec. 
 
 back on Succession, 258. Sep Piers v. 356. 
 
 411 
 
§ 473 EVIDENCE OP MARRIAGE. [bOOK IV, 
 
 is not very clear. Dr. Swaby rejected the certificate of a 
 Gretna Green marriage, and said : " Even the certificate of the 
 king himself, under his sign manual, is, it is well known, no 
 evidence of a mere fact." ^ In an Upper Canada case, how- 
 ever, the Court of Queen's Bench admitted a certificate in the 
 following words : "I do hereby certify that I have this day 
 married Mr. Caleb McWilliams of Oswegatchie to Hephzibat 
 Wheeler, according to the established Church of England. 
 Dated, 31st May, 1801. Robert Baldwin, J. P." Said Robin- 
 son, C. J. : " It was a declaration under the hand of a public 
 officer, who is now dead, of his having done a certain act which 
 he was specially authorized by law to do." ^ 
 
 § 47§. Continued — Clergyman's Record. — The statutes of 
 many of our States make it the duty of those official persons 
 to whom the solemnization of marriage is committed, to keep 
 a record of the marriages by them solemnized, and to transmit 
 from time to time, to the proper recording officer of the town, 
 lists of marriages solemnized, to be by the latter officer 
 recorded in the town books. Since, therefore, the first record 
 is a record made and kept, in pursuance of law, by one who, as 
 to the solemnization of marriage, is a public officer, no reason 
 appears why his record, or his certificate of the contents there- 
 of, should not be just as receivable in evidence as the record, 
 or the certificate of it, by the recording officer of the town. 
 But, beyond this, a practice has in some of the States grown 
 up, of receiving the officiating person's bare certificate of the 
 marriage in the same way as the record, or the certificate of it, 
 is received. Says Judge Swift, writing of the law of Connect- 
 icut : " Courts have permitted marriages to be evidenced by 
 the certificate of the magistrate or minister who performed 
 the ceremony. On principle it should be under oath and not 
 by certificate ; but we have experienced no inconvenience from 
 the practice, and it has continued so long that it seems to 
 have become common law." ^ The certificate of a magistrate 
 in Maine seems to have been, in one case, deemed of itself suf- 
 ficient as proof of whatever the record could establish, and the 
 
 1 Nokes V. Milward, supra, p. 391. s g^jft Ev. 5. 
 
 2 "Wheeler «. McWilliams, 2 U. C. 
 Q. B. 77, 80. 
 
 412 
 
CHAP. XXV.] EECOEDS AND CERTIFICATES OP MARRIAGE. § 473 a 
 
 court observed that it was in the usual form.^ This kind of 
 evidence has been more or less received,^ and perhaps in trials 
 before single judges more or less rejected, in Massachusetts ; ^ 
 and in New Hampshire* and Virginia" there are statutes 
 expressly authorizing its reception ; and so, at least in certain 
 cases, in Tennessee, if the certificate is accompanied by a cer- 
 tified copy of the marriage license.^ On the other hand, such 
 evidence is, in Pennsylvania, deemed inadmissible ; ^ and prob- 
 ably also in various other States.^ 
 
 IV. How of Private Memoranda in the Nature of Records. 
 
 § 473 a. General View. — The reader, who has carefully ex- 
 amined the discussions under the foregoing sub-titles of this 
 chapter, has observed that more or less reference is there made 
 to quasi records, receivable in some circumstances and for 
 some purposes as private memoranda, though not as records 
 in the ordinary sense. And this sub-title is inserted simply 
 to give such caution to the reader that he will not overlook the 
 topic, though not to discuss it in full. The books are not quite 
 clear and uniform in their utterances relating to it. The 
 reporter's head-note to a late case before the Supreme 
 Court of the United States is as follows : " Independently of 
 statute requiring it to be kept, a baptismal register of a 
 church, in which entries of baptisms are made in the ordinary 
 course of the clergyman's business, is admissible to prove the 
 fa/it and date of baptism, but ,not to prove other facts, as, for 
 
 1 Wedgwood's Case, 8 Greenl. 75. record of a marriage, made and kept as 
 See ante, § 468 ; s. p. Jones a. Jones, prescribed by law by tlie person before 
 18 Maine, 308. wliom tiie marriage is solemnized, or 
 
 2 Ellis V. Ellis, 11 Mass. 92 ; Mangue by the clerk or registrar of any city or 
 B. Mangue, 1 Mass. 240. In Common- town, or a copy of such record duly 
 wealth V. Morris, 1 Cush. 391, decided certified, shall be received in all courts 
 since Stats. 1840, c. 84, and 1841, c. 20 and places as presumptive evidence of 
 (Gen. Stats, c. 106, § 22), a certificate such marriage." Gen. Stat. c. 106, 
 of a marriage in another State, and § 21. 
 
 " not verified or proved," nor found in * The State v. Marvin, 35 N. H. 22. 
 the custody of the defendant, was re- ^ Moore v. Commonwealth, 9 Leigh, 
 
 jected. And see Commonwealth u. 639. 
 
 Littlejohn, 15 Mass. 163 ; Milford v. « Rice v. The State, 7 Humph. 14. 
 Worcester, 7 Mass. 48, 57. 1 Hill v. Hill, 8 Casey, 511. 
 
 3 There is at present, in Massaclra- 8 gee People v. Lambert, 5 Mich, 
 setts, the following statute, the effect 349; Gaines v. Relf, 12 How. U. S. 
 of which, on the point discussed in the 472. 
 
 text, I shall not attempt to state : " The 
 
 413 
 
§ 474 EVIDENCE OP MARRIAGE, [BOOK IT. 
 
 example, that the child was baptized as the lawful child of the 
 parents, and hence to infer a marriage between them." And 
 Wayne, J., observed: "The register was admissible upon the 
 ground that the entries in it were made by the writer in the 
 ordinary course of his business." ^ This general question is 
 discussed with considerable learning by Gray, J., in a Massa- 
 chusetts case wherein it is held, that the entry of a baptism, 
 contemporaneously made by a Roman Catholic priest, in the 
 discharge of his ecclesiastical duty, in his church records of 
 baptisms, is competent evidence after his death, of the date of 
 the baptism, if the book is produced from the proper custody; 
 although the priest was not a sworn officer, and the book was 
 not required by law to be kept. And it was deemed that the 
 like i-ule would prevail if the book was kept by any other 
 minister of religion, in accordance with the usages of his own 
 denomination. If the priest had been alive when this record 
 was tendered, it would not have been admissible.^ But in the 
 facts of the case decided by the United States Supreme Court, 
 as just stated, the priest who made the record which was deemed 
 to be admissible for certain purposes was alive, and he gave 
 his deposition to another point in the same case.^ 
 
 y. Special Considerations as to Foreign Records. 
 
 § 474. General View — How under Constitution of United 
 States. — As to the matter of proof by record, there may be a 
 difference between marriages celebrated in sister States of our 
 Union, and celebrated in strictly foreign countries. If Art. 
 IV. § 1, of the United States Constitution, which provides, 
 that " full faith and credit shall be given in each State to the 
 public acts, records, and judicial proceedings of every other 
 State," with the act of Congress made in pursuance of this 
 provision,^ applies to records of the kind we are now consider- 
 ing, — then, of course, the difference between inter-State mar- 
 riage records and strictly foreign ones is palpable. And even 
 if it does not apply, still, as appears in some of our earlier 
 
 1 Blackburn v. Crawfords, 3 Wal. » See, also, Hubbard v. Lees, Law 
 175, 189. . Eep. 1 Ex. 256. 
 
 2 Kennedy v. Doyle, 10 Allen, 161. « See 1 Greenl. Ev. § 504-506. 
 
 414 
 
CHAP. XXV.J RECORDS AND CERTIFICATES OF MARRIAGE. § 476 
 
 sections/ the courts may perhaps relax somewhat the general 
 rule when the record comes, not from a wholly foreign country, 
 but from a sister State. On the general question, whether the 
 Constitution of the United States, properly construed, embraces 
 such a matter as these records, and, if it does, whether still 
 the act of Congress reaches the case, it is not the purpose of 
 the author to express, in these pages, any opinion. Of specific 
 decision, we have not much to help us here.^ 
 
 § 475. Foreign Law proved in Connection with Record — Not 
 follow Foreign Rules of Evidence. — There are, however, two 
 propositions, connected with the proof alike of strictly foreign 
 and of inter-State marriages, important to be borne in mind. 
 The one is, that, where the record of a foreign marriage is 
 tendered, it must be accompanied by evidence showing the 
 foreign law under which the record is kept. This is to enable 
 the court to see, not that the record would be evidence in the 
 foreign country, but that it is such a record as, if kept in our 
 own country, would be evidence with us.^ The other proposi- 
 tion is, that, in the language of the judge ordinary in an 
 English case, " We are not bound by the rules of evidence in 
 foreign countries, we must be guided by our own rules ; " con- 
 sequently, though by the foreign law the record or the certifi- 
 cate of it would be admissible in the country where made, it 
 will not be received in our country unless receivable on the 
 principle already explained.* Therefore — for the matter 
 stands the same, whether the record be of marriage, or another 
 record of a similar kind — where, in Ohio, the defendant on a 
 trial in ejectment offered the deposition of the town clerk of 
 New Milford, Connecticut, to prove the correctness of a copy 
 of a record of his own town, showing the time of the defendant's 
 birth, the court required him to further show, that the record 
 was kept under the authority of law.^ 
 
 § 476. Continued. — At the same time it is true, that there 
 
 1 Ante, § 415, et al. Stevens v. Bomar, 9 Humph. 546 ; 
 
 '■! See Niles v. Sprague, 13 Iowa, 198 ; Richmond v. Patterson, 3 Ohio, 368. 
 
 People V. Lambert, 5 Mich. 849 ; Swift < Finlay v. Finlay, 31 Law J, Mat. 
 
 u. Fitzhugh, 9 Port. 39. Cas. 149 ; Caujolle v. Perrie, 26 Barb. 
 
 3 Fergusson v. Clifford, 37 N. H. 86 ; 177. 
 
 Taylor's Succession, 15 La. An. 313 ; 6 Richmond u. Patterson, 3 Ohio, 
 
 People V. Lambert, 5 Mich. 349. And 368. 
 
 see Swift v. Fitzhugh, 9 Port. 
 
 415 
 
§ 478 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 are cases in which this point was not taken, or not deemed 
 one to be regarded. Thus, in a New York case, no such 
 objection being interposed, a sworn copy of the record of the 
 town of Stonington, Connecticut, was accepted as admissible 
 on a question of pedigree, — perhaps there is a difference 
 between a question of pedigree and one of marriage, — where, 
 also, a ruling to this effect was not essential to the case.^ So 
 in Pennsylvania, a copy of the register of marriages, baptisms, 
 and burials, kept in a parish of the Island of Barbadoes, 
 certified by the rector of the parish to be a true copy, and 
 proved by the oath of a witness taken before the deputy secre- 
 tary of the island and notary public (his handwriting and oflSce 
 being proved), under his hand and notarial seal of office, was 
 held to be good evidence in proof of pedigree. There was no 
 further proof of the foreign law, nor was any objection made 
 to the want of such proof.^ 
 
 § 477. Continued — Divorce. — In an English fiisi prius case, 
 before Lord Kenyon, where the defendant, to prove a Jewish 
 divorce at Leghorn, produced an instrument under the seal of 
 the synagogue there, whereby the woman was declared divorced 
 from her husband, his lordship refused to admit it, unless 
 accompanied by proof of the foreign law. But he permitted 
 the divorced woman herself to take the stand as a witness ; 
 and she swore, without producing any instrument of divorce, 
 that she was divorced from her husband at Leghorn, according 
 to the ceremony and custom of the Jews there ; whereupon a 
 verdict was rendered in favor of the party producing this evi- 
 dence.^ There may be some doubt, whether, as proof of 
 divorce, in distinction from marriage, the course which this 
 case took before his lordship is in all respects the same which 
 would be deemed correct, in a like case, in the United States. 
 But this matter of foreign divorce will be considered in another 
 part of these volumes.* 
 
 § 478. Continued — English Rule. — Mr. Taylor, in his book 
 
 1 Jackson v. Boneham, 15 Johns. 3 Ganer v. Lanesborough, Peake, 17. 
 226. 4 And see Streeter v. Streeter, 43 
 
 2 Kingston v. Lesley, 10 S. & E. 383. 111. 155 ; Commonwealth o. Boyer, 7 
 But see Good v. Good, 1 Curt. Ec. 755, Allen, 306 ; post, § 514 et seq. 
 
 6 Eng. Ec. 452. See Commonwealth 
 V. Morris, 1 Gush. 891. 
 
 416 
 
CHAP. XXT.j RECORDS AND CERTIFICATES OF MARRIAGE. § 479 
 
 • 
 
 of Evidence, 1 states the English rule with regard to foreign and 
 colonial registers, as follows : " Copies of such registers will 
 be adnaissible, 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 such proof, a copy of 
 a baptismal register in Guernsey,^ — a copy of a certificate of 
 baptism by the chaplain of a British minister at a foreign 
 court,* — a copy of a marriage register kept in the Swedish 
 embassador's chapel at Paris,^ — and a copy of the book kept 
 at the British embassador's hotel in Paris, wherein the embas- 
 sador's chaplain had made and subscribed entries of all mar- 
 riages celebrated by him,^ — have been rejected. But on 
 the other hand, an examined copy of a marriage register in 
 Barbadoes has been admitted, it appearing that by the law of 
 that colony such register was kept." ' As shedding, perhaps, 
 some further light on this question, the reader who is bent on 
 investigating it thoroughly may not unprofitably open the 
 books where are reported some other cases, here cited in a 
 note.^ 
 
 VI. What Ancillary Proof must attend the 'Record ? 
 
 § 479. What the Record proves — Identity of Parties. — The 
 marriage certificate, or record, or certificate of record, as the 
 case may be, whether it be of a foreign or of a domestic mar- 
 riage, is not, in itself alone, sufficient evidence of the marriage. 
 It proves only what it purports ; namely, tliat two persons 
 bearing the names inentioned therein were married on the day 
 therein stated. Consequently the identity of the persons thus 
 named with the parties whose marriage is in question, must be 
 
 1 2 Taylor Ev. 3d ed. § 1431. 8 United States v. Mitchel, 3 Wash. 
 
 2 See Perth Peerage Case, 2 H. L. C. C. 95 ; Baner v. Day, 3 Wash. C. C. 
 Cas. 865, 873, 874, 876, 877. 243 ; Conway v. Beazley, 3 Hag. Ec. 
 
 3 Huet V. Le Messurier, 1 Cox, 275, 639, 5 Eng. Ec. 242, 248; Hyam v. 
 commented on by Dr. Lushington in Edwards, 1 Dall. 1 ; Weston o. Stam- 
 Cood V. Cood, 1 Curt Ec. 755, 766. mers, 1 Dall. 2; Bingham u. Cabbot, 
 
 * DufEeriu Peerage Case, 2 H. L. 3 Dall. 19; Commonwealth v. Morris, 
 
 Cas. 47. 1 Cush. 391; Chouteau v. Chevalier, 1 
 
 5 Leader v. Barry, 1 Esp. 353. Misso. 343; Hyam v. Edwards, 1 Dall. 
 
 6 Athlone Peerage Case, 8 CI. & P. 1 ; Ennis v. Smith, 14 How. U. S. 400 ; 
 262. Nokes v. Milward, 2 Add. Ec. 386, 2 
 
 7 jCood V. Cood, 1 Curt. Ec. 755, Eng. Ec. 356. 
 766, 767. 
 
 VOL, I. 27 417 
 
§ 480 EVIDENCE OF MARRIAGE. [BOOK IV, 
 
 established by other evidence.^ The proof of identity need 
 not, however, in any case, be by persons who were present at 
 the marriage, or by the subscribing witnesses to the mai'riage 
 register ; but it may be made to appear by circumstantial evi- 
 dence, without showing any inability to procure the direct 
 proof. And there is no difference, as to this point, between 
 actions for criminal conversations, or indictments for polygamy 
 and the like, and ordinary civil actions. " As to the proof of 
 identity," said Lord Mansfield, " whatever is sufficient to 
 satisfy a jury is good evidence. If neither the minister, nor 
 the clerk, nor any of the subscribing witnesses were acquainted 
 with tlie married couple, in sucli a case none of them might be 
 able to prove the identity. But it may be proved in a thousand 
 other ways. Suppose the bell-ringers were called and proved 
 that they rung the bells, and came immediately after the mar- 
 riage and were paid by the parties ; suppose the handwriting 
 of the parties were proved ; suppose persons called who were 
 present at the wedding-dinner, &c., <fec." And Buller, J., in 
 the same case, said : " In this case, the wife's maiden name 
 was Harriet Champneys. Suppose a maid-servant had proved 
 that she always went by that name till the day of the marriage, 
 that she went out that day, and on her return and ever since 
 was called Mrs. Birt ? Surely that would have been evidence 
 of the identity." 2 
 
 § 480. Identity, continued — Confessions. — On the trial of an 
 indictment for polygamy before the Recorder of New York, a 
 clergyman having testified that he celebrated a marriage 
 between parties of the names alleged in the indictment, but he 
 did not know whether the defendant was the same woman or 
 not, the court seemed to be of the opinion, that, if confessions 
 of marriage could not be received in this issue to establish the 
 fact itself, so neither could they help out the matter of identity. 
 " Her acknowledgment," it was observed, " that she was the 
 wife of Steers, would not show that she was the same person 
 
 1 Wedgwood's Case, 8 Greenl, 75 ; 9 Mass. 492 ; Keg. v. Hawes, 1 Den. C. 
 Tlie State u. Wallace, 9 N. H. 515 ; C. 270. 
 
 The State v. Wlnkley, 14 N. H 480, 2 Birt v. Barlow, 1 Doug. 171, 174, 
 494; Northfleld u. Plymouth, 20 Vt. 175; Hemmings u. Smith, 4 Doug. 33 ; 
 582, 589 ; Commonwealth v. Norcross, Damon's Case, 6 Greenl. 148 ; Co jd v. 
 
 Good, 1 Curt. 755, 6 Eng. Eo. 452. 
 
 418 
 
CHAP. XXVI.] FACT OP MARRIAGE. § 482 
 
 named by Dr. Knypers, as related in his testimony." ^ Still, 
 assuming mere confessions of marriage not to be sufficient 
 evidence in a case like this, — a point to be considered in 
 another place,^ — it is difficult to see why this evidence might 
 not have gone to the jury, in aid of the general proofs of 
 identity, though perhaps it would not alone be sufficient. 
 Where, in a case of pedigree, a marriage in fact is proved to 
 have taken place at so distant a period as to render proof of the 
 identity of the parties next to impossible, the identity may be 
 presumed."* 
 
 § 481. Continued — Discrepancy in Names. —r If, on an indict- 
 ment for polygamy, there is a discrepancy between the Chris- 
 tian name of the prisoner's first wife, as laid in the indictment, 
 and as stated in the copy of the certificate which is produced 
 to prove the first marriage, the prisoner must be acquitted; 
 unless the discrepancy can be explained, or, in the absence of 
 explanatory proof, it can be shown that the first wife was 
 . known by both names.* 
 
 CHAPTER XXVI. 
 
 FURTHER AS TO THE PROOF OP WHAT IS CALLED A PACT OP 
 
 MARRIAGE. 
 
 482-484. Introduction. 
 
 485, 486. General View of the Marriage in Fact. 
 487-493. Circumstantial Evidence in Proof of it. 
 494-496. Direct Evidence other than by the Record. 
 497-502. Confessions and Admissions of the Party. 
 
 § 482. What a Fact of Marriage — When to be proved. — 
 When the proof of a marriage is by the record, witli ancillary 
 evidence to show the identity of the parties, as explained in the 
 last chapter, there is established what the books speak of as a 
 
 1 Steers's Case, 2 N. Y. City Hall ' Maule v. Mounsey, 1 Eobertson, 
 Bee. 111. 40, 46. 
 
 2»Post, § 497-502. * Reg. v. Gooding, Car. & M. 297. 
 
 And see ante, § 469. 
 
 419 
 
§ 484 EVIDENCE OF MARRIAGE. [BOOK IT. 
 
 fact of marriage, in distinction from a marriage made to appear 
 by cohabitation, reputation, and other like things resting on 
 the presumption of innocence. Now,> the books tell us that 
 this fact of marriage must be established in evidence when the 
 cause is an action for criminal conversation, or an indictment 
 for polygamy, or the like. But if the party chooses, h^ can, in 
 all other issues, prove the fact of marriage, instead of relying 
 upon presumptions. 
 
 § 483. Record or Certificate unnecessary. — There is a Massa- 
 chusetts case, wherein it became necessary for the plaintiff to 
 prove himself to be a doctor of medicine ; and the court held, 
 that he need not produce his diploma, but might rely on the 
 vote passed for conferring the degree upon him. The vote 
 was, " that the honorary degree of doctor of medicine be con- 
 ferred," and so on. Said Shaw, C. J. : " When an aggregate 
 body is authorized to make an appointment or grant an 
 authority or privilege, and no mode is specially directed in 
 which it shall be done, or by which it shall be proved, a vote 
 that the act be done, or the right granted, is jin execution of 
 the power ; and a duly authenticated copy of the vote sufficient 
 proof of it." ^ Now, a marriage is not a degree of M. D., still, 
 it is, among other things, a grant of an " authority or privilege," 
 not indeed from the clergyman, but from the community, to the 
 married parties. At all events, neither the certificate of mar- 
 riage nor the record of it is essential eitlier to the constitution of 
 the marital relation, or to the establishment of the relation in 
 proof. Marriage registers and certificates have the effect 
 only to facilitate the evidence ; they do not, in any issue 
 whatever, preclude the party from producing other evidence, 
 to the disregard of this, or as auxiliary to this. It is always 
 competent even to withhold the record proof if the party 
 chooses.^ 
 
 § 484. TWhat for this Chapter — How divided. — One mode 
 of proving a fact of marriage — namely, by the record — was 
 
 1 Wright V. Lanckton, 19 Pick. 288, 2 Car. & K. 694, 12 Jur. 465 ; Doyly's 
 
 290. Case, McQueen H. L. Pract. 654; 
 
 ■i Birt V. Barlow, 1 Doug. 171; Rex Trower's Case, McQueen H. L. Pract. 
 
 V. Allison, Russ. & Ry. 109; The State 656. See Woods v. Woods, 2 Curt. Ec. 
 
 V. Marvin, 35 N. H. 22 ; Jackson v. 616, 7 Eng. Ec. 181, 184 ; Northey v. 
 
 People, 2 Scam. 231 ; Sayer v. Gloseop, Cock, 2 Add. Ec. 294, 2 Eng. Ec. 312. 
 420 
 
CHAP. XXVI.] PACT OP MARRIAGE. § 486 
 
 explained in the last chapter; there remain, for this chapter, 
 the following heads : namely, I. A General View of this Idea 
 of Marriage in Fact ; II. Circumstantial Evidence in Proof of 
 this Marriage ; III. Direct Evidence other than by the Record ; 
 IV. The Confessions and Admissions of the Party. 
 
 I. G-eneral View of the Marriage in Fact. 
 
 §485. Inaccurate Language — "Marriage in Fact" — "Actual 
 Marriage." — The general language of the books is not well 
 adapted to convey the idea really meant by the law. It is, 
 that, in all causes, except, and so on, as already explained, 
 proof of marriage by cohabitation and repute is sufficient ; 
 while, in the excepted cases, such as indictments for polygamy 
 and the like, there must be proof of a marriage in fact, other- 
 wise termed an actual marriage. Now, all marriages are mar- 
 riages in fact ; they are all actual marriages ; and what is a 
 good marriage in one case is good in another. The real point 
 truly stated is, that an actual marriage in fact will be inferred 
 from the cohabitation of parties as husband and wife, with per- 
 haps the added reputation of their being married attending as 
 the shadow \ipou such cohabitation, in all cases where this 
 result, resting on the presumption of their innocence, does not 
 come in conflict with the opposite result which might be de- 
 rived from the like presumed innocence of the parties or of 
 third persons, when all the facts are taken into the account. 
 
 § 486. " Marriage in Fact," &c. continued. — In a New Hamp- 
 shire case, the court undertook to define the terms actual 
 marriage, and fact of marriage ; and the conclusion arrived at 
 was, that they had not been before defined, yet that they are 
 practically used to denote the marriage as proved by direct 
 evidence — as, for instance, by the testimony of witnesses who 
 were present at the ceremony — in distinction from the proof 
 by indirect evidence, such as reputation, cohabitation, acknowl- 
 edgment, and the like.^ In other words, it was that, where 
 the evidence is circumstantial, there is, in the language of the 
 law, proof of a marriage other than a marriage in fact ; other, 
 also, than an actual marriage : yet, where the evidence is not 
 circumstantial, but direct, the marriage proved is a marriage 
 
 1 The State v. Winkley, 14 N. H. 480, 494, 495. 
 
 421 
 
§ 488 EVIDENCE OP MARRIAGE. [BOOK IT. 
 
 in fact, or an actual marriage. It is of little consequence to 
 ascertain with what degree of precision, or lack of precision, 
 the judges heretofore have been in the habit of using the words 
 composing our language ; what we, who are inquiring to know 
 the law, need most to determine is, — What is the substance — 
 what the essence — of the law as held in actual adjudication ? 
 At the same time a more extensive search into the books would 
 have shown, that these terms have at least sometimes- been 
 used by the most accomplished judges to denote marriages 
 proved by other than direct testimony. Thus, Sir John Nicholl, 
 in speaking of a marriage, the proof of which was circumstan- 
 tial, said : " Now it appears to me that this evidence does sufi5- 
 ciently establish a fact of marriage."^ And though the books 
 show considerable confusion in language attributed to learned 
 judges, yet, as the writer reads the cases, the result is, that, 
 on the whole, the terms actual marriage and fact of marriage 
 are synonymous in meaning, as employed in legal opinions, 
 and either term signifies such a marriage as in proof is estab- 
 lished without help from the presumption of innocence. 
 
 II. Circumstantial Evidence in Proof of the Fact of Marriage. 
 
 §487. General Doctrine — Proof by Record. — Therefore this 
 which we have called a fact of marriage may, like any other 
 fact arising in a judicial proceeding, be established by circum- 
 stantial as well as by direct evidence. It is a familiar truth, 
 that a judgment can be proved only by an exemplification of 
 the record ; yet we have already seen, that the record of mar- 
 riage is not in this respect in the nature of a judgment ; but 
 that the marriage, though recorded, is provable as well without 
 reference to the record as with it, provided the party has proof 
 by the lips of witnesses.^ 
 
 § 488. Illustration of Circumstantial Proof. — Thus, Dr. Rad- 
 cliff, in giving judgment in the Consistory Court of Dublin, in 
 a case where proof of the direct fact of marriage appears to 
 have been considered necessary, remarked : " It therefore lay 
 on the promovent here to allege and prove a marriage in fact ; 
 
 1 Steadman v. Powell, 1 Add. Ec. Matter of Taylor, 9 Paige, 611 ; People 
 58, 63, 2 Bug. Ec. 26, 29. And see i,. Whigham, 1 Wheeler, C. C. 115. 
 
 2 Ante, § 483. 
 422 
 
CHAP. XXVi.J FACT OF MARRIAGE. § 489 
 
 for a de facto marriage being once proved, it lies on tlie party 
 denying it to prove its illegality. The law of Ireland imposing 
 no statutable forms or ceremonies in order to a marriage, it is 
 not essential to prove the fact of marriage by direct evidence 
 to the point ; it is sufficient to prove it circumstantially ; and 
 strict proof is not to be expected in a country where marriage 
 registries are generally disregarded, and the law is so loose ; 
 and greater allowance is to be made in the proof of a marriage 
 shown to be purposely and necessarily clandestine and secret.^ 
 In the present case, if a marriage took place, the whole evi- 
 dence, from the beginning to the end, demonstrates that it 
 must have been intended so to effect it as to keep it undivulged, 
 so as not to reach the ears of Mr. Maxwell the elder, who, it 
 was known, would not have consented to the marriage of his 
 only son to any lady devoid of fortune. It is also a circum- 
 stance here, creating the impossibility of direct proof, that the 
 Rev. Joseph Wood died suddenly, before the commencement 
 of the suit, and that being what is styled a couple-beggar, his 
 certificate, or entry of the marriage in hi^ book, is not legal 
 evidence." And in this case the marriage in fact was held to 
 be established on evidence of public acknowledgment, by the 
 husband, of the lady as his wife ; and of her general high char- 
 acter ; and of his admissions of promise to marry, and an at- 
 tempt to fulfil the promise ; though he denied the celebration. ^ 
 § 489. Another niustration. — So on a petition for divorce, in 
 which, though the ground of the petition does not appear in the 
 report, it was no doubt deemed necessary to prove a fact of 
 marriage, as the term is defined in these pages, the court admit- 
 ted proof by reputation, accompanied by evidence of the death 
 of the magistrate before whom the marriage was reputed to 
 have been solemnized ; together with evidence of search made 
 
 1 The reader will see, in another essential to its validity, " a contract by- 
 place, that, whether a clandestine or words of the present tense between 
 secret marriage shall require stronger parties able to contract, with the in- 
 or less strong proof than one which is tervention of a priest in orders." See 
 not so, must depend upon eircum- also s. p. witli the text. Else v. Else, 
 stances. See post, § 539. Milw. 146, 150, relying upon Stead- 
 
 2 Maxwell v. Maxwell, Milw. 290, man «. Powell, 1 Add. Ec. 58, 2 Eng. 
 292, 293. The learned judge consid- Ec. 26. We have seen (ante, § 275 
 ered the law of marriage, under which et seq.), that the case of Eeg. v. Millis 
 this aecision was given, to require, as settled this point the other way. 
 
 42b 
 
§ 490 EVIDENCE OF MARRIAGE, [BOOK IV. 
 
 in the records of the town for a record of tliis marriage, and 
 no such record found.^ But the particular proofs required in 
 divorce causes is matter to be inquired into in another part of 
 these volumes, not here.^ 
 
 § 490. Morris V. Miller — Burrow's Reports. — The cases and 
 dicta which seem to favor the opinion, that what we have de- 
 scribed to be a marriage in fact cannot be proved by circum- 
 stantial evidence, seem to have grown out of a misapprehension 
 of the leading case on the subject ; namely, Morris v. Miller.^ 
 This case was reported by Burrow from notes taken, not in 
 short-hand, but in the ordinary hand which would not permit 
 him, had he desired, to transcribe the exact language of the 
 judge ; while he, like the other reporters of his day, did not 
 strive to do this. He was a clerk of the court, and the merit 
 of his work, he said in the preface, " consists in the correctness 
 of the states of the cases." And after saying that he did not 
 use short-hand, he added : " I do not always take down the 
 restrictions with which a speaker may qualify a proposition to 
 guard against its being understood universally, or in too large 
 a sense. And therefore I caution the reader" — but many 
 readers would not take the caution — " always to imply the 
 exceptions which ought to be made, when I repeat such propo- 
 sitions as falling from the judges. I watch the sense, rather 
 than the words; and therefore may often use some of my 
 own."* Looking after the sense and carrying this caution with 
 us, we find, that, in the report by Burrow of this case, there 
 appears to have been an action brought for criminal conversa- 
 tion with the plaintiff's wife, against a defendant who did not 
 know except as matter of opinion whether the alleged wife was 
 married or not. There was a confession by the defendant, who 
 , mentioned her as the plaintiff's wife. This evidence was deemed 
 not to be sufficient ; and plainly it was not, for the defendant 
 did not profess to know the fact about which he spake.^ Tlien, 
 as observed by one of the counsel, " we proved articles between 
 the man and his wife, made after the marriage, for the settling 
 
 1 Mitchell V. MitcheU, 11 Vt. 134. 3 Morris v. Miller, 4 Bur. 2057, 1 W. 
 And see Macqueen H. L. Pract. 535 ; Bl. 632. 
 
 Hervey v. Hervey, 2 W. Bl. 877 ; Bod- * Burrow's Reports, Pref. 
 kin V. Case, Milw. 355, 361. 5 gee post, § 498. 
 
 2 Vol. 11. § 262-276. 
 
 424 
 
CHAP. XXVI.] FACT OP MARRIAGE. § 491 
 
 of the wife's estate, with the privity of relatives on both sides." 
 But as this marriage was celebrated, if at all, after statutes had 
 made certain formalities necessary to the constitution of mar- 
 riage, this was, perhaps correctly, deemed insufficient evidence. 
 " We proved," continued the counsel, " cohabitation, name, and 
 reception of her by everybody as his wife ; though we did not 
 indeed prove it by any register, or by witnesses who were 
 present at the marriage." Now, Burrow gives us no clew to 
 the answer which the judges made to any of the points except 
 this last-mentioned one. 
 
 §491. Continued — "W. Blackstone's Reports. — Says the re- 
 port : " Lord Mansfield delivered the opinion of the court. We 
 are all clearly of opinion, that, in this kind of action, an action 
 for criminal conversation with the plaintiff's wife, there must 
 be evidence of a marriage in fact : acknowledgment, cohabita- 
 tion, and reputation are not sufficient to maintain this action. 
 But we do not at pi-esent define what may or may not le evi- 
 dence of a marriage in fact. This is a sort of criminal action 
 [Did his lordship here go into the argument, as the author of 
 these pages has done in a previous chapter, and show how two 
 presumptions of innocence arise, and one neutralizes the other? 
 No man, now living, knows] ; there is no other way of punish- 
 ing this crime, at common law. It shall not depend upon the 
 mere reputation of a marriage, which arises from the conduct, 
 or declarations, of the plaintiff himself. In prosecutions for 
 bigamy, a marriage in fact must be proved. No inconvenience 
 can happen by this determination : but inconvenience might 
 arise from a contrary determination ; which might render per- 
 sons liable to actions founded upon evidence made by the 
 persons themselves who should bring the action." And these 
 propositions are separated in the report into paragraphs, no one 
 paragraph containing any thing more than is embraced within 
 a single sentence ; showing, almost conclusively, that the re- 
 porter, who supposed the readers of his reports would read his 
 preface, meant to be understood as conveying only heads of the 
 thought which fell from the judges.^ The report of this case 
 
 1 Morris v. Miller, 4 Bur. 2057, 2059. ported in the like concise way, in Birt 
 And compare these ohservations with v. Barlow, 1 Doug. 170 ; Hemmings v. 
 observations from the same judge, re- Smith, 4 Doug. 33. 
 
 425 
 
§ 492 EVIDENCE OP MARRIAGE, [BOOK IV. 
 
 by Sir William Blackstone, the author of the Commentaries, 
 did not appear until, fourteen years after the opinion was pro- 
 nounced, his two volumes of Reports were published as a post- 
 humous work. There is great diversity, in point of correctness 
 and authority, in the reports of the earlier and later times 
 embraced in these two volumes. This particular case belongs 
 to the class wViich were noted by him, sitting in court, in the 
 full maturity of his powers, after he had written the work which 
 made his name immortal. According to his report, it was"joer 
 Lord Mansfield, Chief Justice, and tot. cur." adjudged : " In 
 these actions, there must be proof of a marriage in fact, as con- 
 trasted to cohabitation, and reputation of marriage arising from 
 thence. Perhaps there need not be strict proof from the regis- 
 ter, or by a person present ; but strong evidence must be had of 
 the fact ; as by a person present at the wedding-dinner, if the 
 register be burnt, and the parson and clerk are dead. This 
 action is by way of punishment: therefore the court never 
 interfere, as to the quantum of damages. No proof, in such a 
 case, shall arise from the parties' own act of cohabitation. The 
 case of bigamy is stronger than this. And on an indictment 
 for that offence, Dennison, Justice, on the Norfolk circuit ruled, 
 that, though a lawful canonical marriage need not be proved, 
 yet a marriage in fact (whether regular or not) must be shown. 
 Except in these two cases, I know of none where reputation is 
 not a good proof of marriage." This report is, like Burrow's, 
 much divided into paragraphs, and evidently it was not intended 
 to embrace all which the judges said.^ 
 
 § 492. Continued. — There are, in our reports, some cases to 
 be found wherein judges have deemed, that, by force of some 
 technical rule of the common law, as drawn from this case of 
 Morris v. Miller, marriage is provable in actions for criminal 
 conversation, and in indictments for polygamy, only by such 
 direct testimony as could but occasionally be obtained for other 
 ordinary matters resting in parol. Whether, according to the 
 better view, the evidence in Morris v. Miller should not have 
 been held, in matter of law, sufficiently to establish a fact of mar- 
 riage, under the statutory regulations of the English law as it 
 then stood, the jury choosing to draw this inference of fact from 
 
 1 Morris v. Miller, 1 W. Bl. 632. 
 426 
 
CHAP. XXVI. J PACT OF MARRIAGE. § 493 
 
 it, is a point of evidence which we need not pause here to exam- 
 ine ; for surely no one decision of a judge, or a bench of judges, 
 on a question of the sufficiency of evidence, should bar all 
 future times. But in those States, in this country, wherein 
 marriages may be contracted without the formalities required 
 by the English marriage acts, plainly this evidence ought to be 
 deemed sufficient, in a like case. And plainly the mere dictum 
 of a judge, however exalted, even if we had the dictum, ought 
 not to be received to overturn principles of law resting in the 
 very foundations of our jurisprudence, and sanctioned by the 
 usages of all time. But we have seen, that, in Morris v. Miller, 
 we have npt certainly even the dictum. And plainly if we take 
 Blackstone's report of the case as containing the better state- 
 ment of the doctrine which fell from the judges, and Burrow's 
 report as embracing the better statement of the case, we have 
 nothing here which need demand of us the casting aside of our 
 reason and the upturning of otherwise established legal prin- 
 ciples. 
 
 § 493. Conclusion as to the General Doctrine. — Let us accept 
 it as law, therefore, that the fact of marriage, like other facts, 
 may be proved by circumstantial evidence, where such evidence 
 is the best which is within the power of the party upon whom 
 lies the burden to establish the fact. Yet a case may be of 
 such a nature that, upon the face of things, the party has direct 
 evidence, if what he asserts is really true, and then the court 
 will do wisely to require him to produce such evidence. Tims, 
 on the trial of an indictment for lascivious cohabitation, one of 
 the parties being, it was alleged, married to a third person, 
 there having been proof that, about twelve years before, such 
 party and such third person left the house of the witness for 
 the declared purpose of going to the house of a clergyman about 
 two miles distant to be married by him ; that, after an absence 
 during which a marriage might have been performed, they re- 
 turned declaring themselves married ; and that they lived 
 together as husband and wife until within a year, when the 
 husband was committed to the State prison, — the court said, 
 the record of the clergyman should be produced, or else the 
 testimony of witnesses who were present.^ This case may per- 
 1 Commonwealth v. Littlejohn, 15 Mass. 163. 
 
 427 
 
§ 495 EVIDENCE OP MARRIAGE. [BOOK lY. 
 
 haps have carried the doctrine too far ; but, at least, it will 
 illustrate a principle.^ 
 
 III. Direct Evidence other than hy the Record. 
 
 § 494. Clergyman as 'Witness. — Third Person Present. — The 
 fact of marriage may be proved by the clergyman or other offi- 
 cial person who solemnized it ; ^ yet there is no legal necessity 
 for calling such officiating person.^ Any one who was present 
 at tlie marriage may be a witness to prove the fact.* Where 
 there is no incompetency by reason of being interested, or being 
 parties to the record, or the like, the married persons may 
 themselves be called to witness either for or against, their own 
 alleged marria,ge.^ There are, however, several circumstances 
 in which, by operation of the general rules of evidence, the tes- 
 timony of these persons will be excluded ; yet it does not come 
 within the purpose of these volumes to discuss them.® This is 
 the usual direct proof of the fact where the record is not pro- 
 duced, but there may be other admissible evidence of a like 
 nature. Proof by witnesses present has been deemed better 
 than proof by the record.''' 
 
 § 495. Ofacial Character of Clergyman, &c. — Where the mar- 
 riage is proved by the testimony of a person who was present, 
 it has been made a question to what extent proof must also be 
 presented of the official character of the person who solemnized 
 it ; as, that he was a magistrate, or a minister of the gospel. It 
 is not essential to the entire validity of the marriage, that such 
 person be a magistrate or minister de jure ; if he is such de 
 facto, that is enough ; and perhaps, also, if he is a mere usurper.^ 
 
 1 See, also, Langtry v. The State, 30 2 Nott & McC. 114 ; The State v. 
 Ala. 536. Wilson, 22 Iowa, 364 ; Kilburn v. Mul- 
 
 2 People V. Wigham, 1 Wheeler, C. len, 22 Iowa, 498 ; Guardians of the 
 C. 115. Poom. Nathans, 2 Brews. 149; Christy 
 
 3 Coleman's Case, 6 N. Y. City Hall v. Clarke, 45 Barb. 529. 
 
 Kec. 3. 6 Eose v. Niles, 1 Abbot Adm. 411 ; 
 
 < Nixon u. Brown, 4 Blaekf. 157 ; . Scherpf v. Szadeczky, 4 Smith, N. Y. 
 
 The State o. WilUams, 20 Iowa, 98 ; C. P. 110 ; Poultney v. Fairhaven, 
 
 Patterson v. Gaines, 6 How. U. S. 550, Brayt. 185 ; Reg. v. Madden, 14 U. C. 
 
 589 ; Bruce v. Burke, 2 Add. Be. 471, Q. B. 588. 
 
 2 Eng. Be. 381, 383 ; St. Devereux v. 1 Commonwealth v. Norcross, 9 
 
 Much Dew Church, Bur. Set. Cas. 506, Mass. 492 ; Warner v. Commonwealth, 
 
 1 W. Bl. 367 ; The State v. Robbins, 6 2 Va. Cas. 95. 
 
 Ire. 23. s xhe Lord Chancellor and Lord 
 
 5 1 Greenl. Ev. § 342 ; Allen v. Hall, Cottenham in Reg. v. Millis, 10 CI. & 
 428 
 
CHAP. XXVI.] PACT OP MARRIAGE. § 496 
 
 Therefore it is not necessary to produce his commission, or any 
 record or other like evidence of his authority ; the usual proof 
 in such cases being, that he was in the habit of acting, or had 
 acted, in this capacity.^ The doubt is, whether the person must 
 be shown to have acted in more cases than the single one in 
 controversy. It would seem clear upon principle that no other 
 proof need, in the first instance, be produced ; because the law, 
 which always presumes innocence, will presume that the per- 
 son who solemnized the marriage under a claim of authority 
 had such in fact, since otherwise he would expose himself to 
 the penalties of the law ; ^ because, also, where a purpose of 
 present marriage is shown, every legal intendment is in favor 
 of the validity of the marriage ; ** and because, in cases where 
 the proof is offered against one of the parties to the ceremony, 
 such party's own admission of the official character of the per- 
 son performing it is necessarily embraced in the proof.* 
 
 § 496. Continued. — And this doctrine seems not entirely 
 without authority,^ though it has happened, in most of the 
 cases, that there has been some accompanying badge of office ; 
 as, that the person officiating was habited as a priest.^ On the 
 other hand, in Maine, on the trial of an indictment for adultery, 
 the witness having testified that she saw the ceremony per- 
 formed, but could not tell by whom, and gave no description of 
 the person performing it whereby his official character could be 
 indicated, the evidence was held to be insufficient, though the 
 performance of the ceremony was followed by cohabitation.'' 
 Perhaps the tendency of the authorities may be to require 
 something beyond the mere performance of the ceremony indic- 
 ative of the official character.^ But it will be difficult to sus- 
 
 F. 534, 861, 906 ; Hawke v. Corri, 2 * Warner v. Commonwealth, 2 Va. 
 
 Hag. Con. 280, 283. See Dormer v. Cas. 95. 
 
 Williams, 1 Curt. Ec. 870, 6 Eng. Ec, 5 The State v. Rood, 12 Vt. 396 ; 
 
 505. Goshen v. Stonington, 4 Conn. 209 ; 
 
 1 The State v. Bobbins, 6 Ire. 23 ; The State v. Winkley, 14 N. H. 480, 
 Warner v. Commonwealth, 2 Va. Cas. 496. 
 
 95 ; The State v. Kean, 10 N. H. 347 ; " Kex v. Brampton, 10 East, 282, 
 
 The State v. Winkley, 14 N. H. 480 ; 291 ; Fielding's Case, 14 Howell St. 
 
 Damon's Case, 6 Greenl. 148 ; Legeyt Tr. 1327 ; Patterson v. Gaines, 6 How. 
 
 V. O'Brien, Milw. 325; Goshen u. Ston- U. S. 550; The State w. Rood, 12 Vt. 
 
 ington, 4 Conn. 209; The State v. 396. 
 Abbey, 29 Vt. 60. ' The State v. Hodgskins, 19 Maine, 
 
 2 Ante, § 450, 451. 155. 
 
 8 ^nte § 457 * According to a Delaware case, in 
 
 429 
 
§ 497 ETIDENCE OP MARRIAGE. [BOOK IV. 
 
 tail! such a distinction. If we assume it to be settled, tliat, 
 where a person entirely unknown to the witness, habited like a 
 priest, performs the ceremony, no further evidence is required 
 of his being a priest, it seems necessarily to follow, that, if a 
 person professing to be a justice of the peace or a Protestant 
 dissenting minister performs the ceremony, in the proper ap- 
 parel of such minister or justice, he must likewise be presumed 
 to have authority, though the apparel be but the common dress 
 worn in the community, without any mark of distinction. 
 Should the law presume, that a third person would usurp an 
 office to perform a ceremony through fraud, it might also and 
 as well presume that the same person would, when essential to 
 tlie accomplishment of the object, tie on a ribbon, or put on a 
 gown, before performing the ceremony. The reader will ob- 
 serve, that what is here laid down relates to the law of those 
 States in which a formal solemnization of marriage is essential 
 to its validity. If, in the other States, a formal solemnization is 
 shown, it is plainly immaterial whether the person officiating 
 had authority or not. And in the former class of States, 
 some of the statutes expressly make it sufficient that the person 
 officiating was believed- by the parties to have authority. 
 
 lY. The Confessions and Admissions of the Party. 
 
 § 497. Admissible — General Doctrine. — It is obvious that no 
 witness, especially no non-professional one, can better know 
 whether a fact of marriage has transpired between parties, than 
 themselves. Therefore a deliberate admission or confession of 
 such a fact, be it to a marriage at home or in a foreign country, 
 is competent evidence against the party.^ There is, indeed, 
 
 an action to recover a widow's interest circuit. Pettyjohn v. Pettyjohn, 1 
 
 in the one-third of the personal prop- Houston, 332. 
 
 erty of an intestate husband, the l Reg. o. Simmonsto, I Car. & K. 
 
 authority of the minister who per- 164 ; Eeg. u. Upton, 1 Car. & K. 165 
 
 formed the marriage cannot be proved note ; Duchess of Kingston's Case, 20 
 
 by general reputation; but it is suffi- Howell St. Tr. 855; Pattersons. Gaines, 
 
 ciently shown by evidence, that he was 6 How. U. S. 550; Truman's Case, 1 
 
 received as a regularly ordained minis- East, P. C. 470 ; Cayford's Case, 7 
 
 ter of the gospel by a Methodist church Greenl. 57 ; Ham's Case, 2 Pairf. 891 -, 
 
 where he was sent by the conference. The State v. Hilton, 3 Rich. 434; The 
 
 and where he officiated at the sacra- State v. Britton, 4 McCord, 256 ; War- 
 
 ment and other ordinances for two ner v. Commonwealth, 2 Va. Cas. 95 ; 
 
 years, and that he then went to another Norwood's Case, 1 East, P. C. 837, 
 430 
 
CHAP. XXVI.] FACT OP MARRIAGE. § 498 
 
 some apparent and perhaps real authority ,i adverse to this 
 proposition as applied to cases of indictment for polygamy; 
 and, indeed, there may be some of our States, as we shall see 
 a little further on, where the law is the other way. 
 
 § 498. Discussed. — As to civil actions for criminal cbn- 
 versation, we have seen, that, in Morris v. Miller, the judges 
 deemed the confessions of t}ie defendant, who was not a party 
 to the marriage, or present at it, and who knew nothing about 
 it, inconclusive.- Whether they were evidence which the court 
 considered admissible for what it was worth in the case, the 
 case as we have it repoi'ted seems not very distinctly to disclose. 
 The Pennsylvania ti-ibunal has admitted such confessions to 
 the consideration of the jury ; observing of tlie case of Morris 
 V. Miller, which was not deemed to stand in the way of this 
 decision : " That case, for every thing decided in it, is good 
 authority ; for nothing is more certain, than that, to support 
 an action for criminal conversation, there must have been an 
 actual marriage." ^ And plainly, in principle, wherever there 
 is a confession by tlie defendant to the marriage of the plaintiff, 
 in these actions for criminal conversation, the confession should 
 be looked at, and such weight should be given it, as, under the 
 circumstances, and considering it as coming from a man who 
 may not know the fact about which he speaks, it is, in the eye 
 of reason entitled to receive. And this is believed to be the 
 true doctrine of the adjudged law. Two years after the case 
 of Morris v. Miller was decided in the English Court of King's 
 Bench, the same tribunal explained it, as concerns this point, 
 in the following language : " As to the case mentioned of 
 criminal conversation, to be sure a defendant's saying in jest, 
 or in loose rambling talk, that he had laid with tlie plaintiff's 
 wife, would not be sufficient alone to convict him in that 
 
 470 ; Commonwealth v. Murtagh, 1 173 ; The State u. Seals, 16 Ind. 352. 
 
 Ashm. 272; Reg. i'. Newton, 2 Moody AndseeKenyonu.Ashbridge, 11 Casey, 
 
 & R. 503 ; Fornshill v. Murray, 1 Bland, 157. 
 
 479, 482 ; Woods v. Woods, 2 Curt. Ec. ^^ Reg. v. Flaherty, 2 Car. & K. 
 
 516, 7 Eng. Ec. 181, 183 ; Hill v. HiU, 782 ; People v. Lambert, 5 Mich. 349; 
 
 8 Casey, 511 ; The State v. Libby, 44 The State v. Timmens, 4 Minn. 325. 
 
 Maine, 469 ; The State v. McDonald, And see post, § 499. See also Gaines 
 
 25 Misso. 176 ; Fuller v. Fuller, 17 Cal. o. Eelf, 12 How. U. S. 472. 
 
 605 ; Cameron v. The State, 14 Ala. 2 Ante, § 490, 491. 
 
 546; Forney u. Hallaeher, 8 S. & R. ^ Forney v. Hallacher, 8 S. & R. 159, 
 
 159 ; Wolverton v. The State, 16 Ohio, 160, opinion by Gibson, C. J. 
 
 431 
 
§ 500 EVIDENCE OF MARRIAGE. [BOOK IT. 
 
 action ; but, if it were proved that the defendant had seriously 
 or solemnly recognized that he knew 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 marriage." i 
 
 § 499. Not Admissible, or Insuiflcient. — In Massachusetts,^ 
 previous to the enactment of a statute which has since corrected 
 the error, also in Connecticut,^ New York,* and Michigan,^ the 
 confessions of the prisoner have been lield to be either inad- 
 missible or insufficient evidence to prove the fact of marriage 
 in indictments.^ But said Parker, J., of 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." Accordingly, in the case in which these observa- 
 tions occur, the evidence of the confessions was admitted ; 
 but the verdict, rendered against the prisoner, was set aside 
 because the evidence was too slight, though accompanied by 
 proof of matrimonial cohabitation and reputation.^ 
 
 § 500. "Weight. — The weight which the confession is to have, 
 in the evidence, must depend altogether upon the circum- 
 stances of the case, and upon the particular nature of the 
 confession. It may, under some circumstances, be worthy of 
 very little if any regard ; under others, if the confession was 
 a serious one, it may itself be sufficient.* " Such acknowledg- 
 ments," observes Mr. Bast, " made without consideration of 
 
 * 
 
 1 Eigg V. Curgenven, 2 Wils. 395, Steers's Case, 2 N. Y. City Hall Eec. 
 399. See also Fornshill o. Murray, 1 111. 
 
 Bland, 479, 482 ; Warner v. Common- ° People v. Lambert, 5 Mich. 349, 
 
 wealth, 2 Va. Cas. 95. And see, on « In Minnesota also. The State v. 
 
 the general matter of proving a mar- Timmens, 4 Minn. 825. 
 
 riage in these cases, Birt v. Barlow, 1 ' Gahagan v. People, 1 Parker, 378. 
 
 Doug. 171; Hemmings v. Smith, 4 And see Coleman's Case, 6 N. Y. City 
 
 Doug. 33; Catherwoodu. Caslon, Car. Hall Eec. 3; Phelan's Case, 6 N. Y. 
 
 & M. 431, 13 Law J. K. s. Exch. 834. City Hall Eec. 91. 
 
 2 Commonwealth v. Moffat, 2 Dane 8 Commonwealth v. Murtagh, 1 
 Ab. 296 ; Commonwealth v. Littlejohn, Ashm. 272, 275 ; Wolverton v. The 
 15 Mass. 163. State, 16 Ohio, 173; Eeg. o. Elaherty, 
 
 3 The State v. Eoswell, 6 Conn. 446. 2 Car. & K. 782. 
 * People V. Humphrey, 7 Johns. 314; 
 
 432 
 
CHAP. XXVI.] PACT OP MARRIAGE. § 501 
 
 the consequences, and palpably for other purposes at the time, 
 are scarcely deserving of that name in the sense in which 
 acknowledgments are received as evidence ; more especially 
 if made [in cases 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." ^ 
 §501. Continued — rurther as to Admissibility. — In Con- 
 necticut, where the confession was rejected by the majority of 
 the court, Daggett, J., who delivered the majority opinion, 
 said : " The cohabitation of persons as husband and wife, 
 without any marriage, is too frequent 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 
 suppose a marriage to have been consummated, when no law- 
 ful marriage ever took place. Ignorance of the law on this 
 subject may be presumed in many cases, and confessions of a 
 marriage made without a knowledge of the requisites to con- 
 stitute it such," 2 &c. — observations which show the impor- 
 tance of scrutinizing the confession, rather than rejecting it. 
 Said Birchard, C. J., in an Ohio case : " It is true, that 
 confessions of marriage may be made by persons living in a 
 state of fornication, with a view to secure the offenders from 
 public censure, and thus make a case unlike the ordinary cases 
 of confession against one's interest. This, in our opinion, 
 furnishes no reason for rejecting the evidence as incompetent. 
 It shows rather that the confession thus made should not be 
 relied on, and held by the jury, when unsupported, sufficient 
 to work a conviction. 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." ^ 
 But as to the point, that the party who made the confession 
 may not understand the marriage law, it may be observed, 
 
 1 1 East, P. C. 471 ; Roscoe Crira. 451. And see West v. State, 1 Wis. 
 Ev. 278 ; Eeg. v. Newton, 2 Moody & 209. 
 
 R. 503. 3 Wolverton u. The State, 16 Ohio, 
 
 2 The State v. Eoswell, 6 Conn. 446, 173. 
 
 VOL.1. • 28 433 
 
§ 503 EVIDENCE OP MARRIAGE. '[BOOK IV. 
 
 that the same is true of witnesses who testify to having seen 
 the ceremony performed ; yet, if the confession speaks only of 
 the marriage in general terms, this consideration should have 
 its weight with the jury.^ 
 
 § 502. Token accompanying Confession ■ — Conclusion. — A 
 confession may receive particular weight from its being accom- 
 panied by some outward token. For example, where, on an 
 indictment for polygamy, there was, besides cohabitation proved 
 with the first wife, evidence that the prisoner when making 
 the confession backed his assertions by producing to the wit- 
 ness a copy of a proceeding against him in a Scotch court, the 
 alleged first marriage having been in Scotland, for having im- 
 properly contracted the marriage, though the marriage was 
 still good by the Scotch law, this was held to be a material 
 circumstance strengthening the confession.^ Let us, however, 
 close this chapter in the words of a learned New Jersey judge : 
 " In general," he said, " it may be observed, that all the rules 
 of evidence depend upon the nature of tlie case and the facts 
 which are to be proved ; and the principles to be observed in 
 admitting or rejecting testimony must, in some measure, be 
 accommodated to tlie particular circumstances which are in 
 issue, taking care, however, to adhere, as far as possible, to 
 general rules of law." ^ 
 
 CHAPTER XXVII. 
 
 EFFECT ON THE PROOFS OF SHOWING AN ILLICIT COMMENCEMENT 
 TO THE COHABITATION. 
 
 § 503. Diverse Kinds of niicit Beginnings. — It is plain, in rea- 
 son, that, if the commencement of a cohabitation is shown to 
 be illicit, and the question is whether a valid marriage was 
 afterward celebrated, and the fact is to be inferred from cir- 
 
 1 See Eeg. v. Simmonsto, 1 Car. & And see The State v. Libby, 44 Maine, 
 K. 164. 469. 
 
 2 Truman's Case, 1 East, P. C. 470. » Kinsey, C. J., in Peppingerw. Low, 
 
 1 Halst. 384. 
 434 
 
CHAP. XXVII.] COHABITATION ILLICITLY BEGUN. § 504 
 
 ciimstances, some different considerations enter into tlie inquiry 
 frona those wliich attend a case in wliich plainly the marriage 
 took place, if at all, when the cohabitation began. Then, to 
 look more minutely at the differing facts, there are diversities 
 of result flowing from the diverse circumstances in which an 
 illicit cohabitation may have originated. If the parties were 
 ignorant of any existing impediment, and entered into a formal 
 marriage, yet in truth there was an impediment, — if there was 
 no impediment, yet they chose to indulge in an unlawful com- 
 merce under the cloak of a falsely-assumed matrimonial union, 
 — if they entered into a notorious, openly acknowledged, 
 meretricious relation, — if there was an impediment known to 
 themselves, yet they really desired matrimony, and sought the 
 removal of the impediment, — in each of these cases, the ques- 
 tion, whether, after the impediment is gone, a marriage shall be 
 presumed to have been had, will depend much upon the special 
 nature of the particular case. 
 
 § 504. Under Diverse Marriage Laws. — Again ; the jquestjon, 
 in a State wherein marriages entered into without formal 
 solemnization are good in law, differs from the question in a 
 State where they are not. And this is a consideration per- 
 vading the whole law appertaining to the proof of marriage. 
 Says Mr. Hubback : " All evidence must vary with the nature 
 of the fact to be proved ; and the fact under discussion changes 
 with tlie formalities which by the law of the time and country 
 were required in the construction of marriage ; and the proof 
 is further affected by the greater or less tendency of the attend- 
 ant formalities to generate and preserve evidence of the trans- 
 action. 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. Tlie 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 sligliter circum- 
 stances than are requisite to prove a more recent marriage, of 
 whicli the mode of celebration in all probability created evi- 
 dence of a higher character." ^ These remarks, however, apply 
 
 ' Hubback on Succession, 237. And 2 Eng. Ec. 26, 29 ; Northfield v. Plym- 
 see Steadman v. Powell, 1 Add. Ec. 58, outh, 20 Vt. 582. 
 
 435 
 
§ 506 EVIDENCE OP MAREIAGB. [BOOK IV. 
 
 chiefly, and in ordinary circumstances, to the sufficiency of the 
 evidence, rather than to the particular proofs admissible ; ^ for, 
 as a general proposition, marriage may be, at least prima facie, 
 shown by the same evidence under all the diflering modes of 
 solemnization. Therefore it is, that, in the foregoing chapters, 
 little has been said concerning the differences of which mention 
 has now been made. 
 
 § 505. How as to the Cases — DifiBculties of the Subject. — 
 Though these observations convey truths most plain and pal- 
 pable, it is still true that they have seldom been present in the 
 minds of the judges when passing upon the class of questions 
 to be discussed in this chapter. We shall, therefore, be obliged 
 to feel our way here, as through a maze ; and, if the writer 
 ventures upon a suggestion now and then, he can only hope 
 that it may receive the approbation of the courts ; whether it 
 will or not he cannot state, otherwise than by saying that so 
 ought to be the decided law. 
 
 § 506. t "Where there is no Impediment to Lawfvil Marriage. — 
 Impediment unknown. — If parties come together, intending and 
 choosing an illicit commerce, there being no impediment to 
 marriage, or the impediment not being known, then, the fact of 
 this choice having been established, we cannot infer a change 
 of choice merely from the fact of their not changing their con- 
 duct. In other words, if they are shown to have chosen an illicit 
 commerce, instead of matrimony, at a time when, as they under- 
 stood the facts, there was no obstacle in the way of their inter- 
 marriage, they cannot be presumed by the law to have converted 
 their unlawful connection into a lawful one, unless something 
 more appears in the case than the mere continuance of the 
 commerce which they chose, in the first instance, should be 
 unlawful. From this plain proposition there has been drawn, 
 by some judges, a somewhat doubtful general statement of the 
 law ; namely, that cohabitation, illicit in its commencement, is 
 presumed to continue so. And the reason why the proposition 
 thus laid down is doubtful is, not that it is not in some circum- 
 stances true, but that, as a matter of correct legal principle, it 
 is true only in some circumstances, untrue in others. And 
 indeed the judges generally lay down the proposition with 
 
 1 Hubback on Succession, 238. 
 436 
 
CHAP. XXVII.] COHABITATION ILLICITLY BEGUN. § 507 
 
 qualifications ; and the cases in which the qualifications apply 
 are probably more numerous than those wherein the unqualified 
 proposition applies.^ 
 
 § 507. Lapsley V. Grierson. — The presumption to be derived 
 from cohabitation illicit in its commencement, was much dis- 
 cussed in the case of Lapsley v. Grierson, decided in the House 
 of Lords on an appeal from Scotland. The facts were, that a 
 Scotchman married in Scotland and went abroad; his wife 
 cohabited with another man without any knowledge of the death 
 of her husband, or any reason to suppose him dead, and had 
 children by this cohabitation, some of them born before, and 
 some after the death of the husband. And it was held neces- 
 sary for those who asserted the legitimacy of these cliildren, 
 the origin of the cohabitation of the parents being thus illegal, 
 to show a change in the nature of it, after the death of the hus- 
 band had become known to those parties. There being no evi- 
 dence of such change, the children, even those who were born 
 after the death of the husband, were held to be illegitimate. 
 In giving judgment Lord Brougham said : " i was first a little 
 hampered by the arguments of the Lord Advocate, and of Lord 
 Cunninghame. If the death of William Paul (the first hus- 
 band) 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 illegal, 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. [The reader will remember that 
 this was a Scotch marriage, and that marriages in Scotland 
 require no formal solemnization.] But when I come to look 
 into the facts of the case, I do not think that I am at all called 
 on to consider that question." Lord Campbell said : " 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 
 
 1 Cunninghams v. Cunninghams, 2 well, Milw. 290 ; Matter of Taylor, 9 
 
 Dow, 482; Bond u. Bond, 2 Lee, 45, 6 Paige, 611, 615; Hyde v. Hyde, 8 
 
 Eng. Ec. 28 ; Taylor v. Taylor, 2 Lee, Bradf. 509 ; Ferrie v. The Public Ad- 
 
 274, 6 Eng. Ec. 124 ; Maxwell t. Mai- ministrator, 4 Bradf. 28. 
 
 437 
 
§ 507 a EVIDENCE OF MARRIAGE. [bOOK IV. 
 
 entertain that belief. There was mala fides from the beginning 
 to the end of the proceeding." i 
 
 § 507 a. Continued — Campbell v. Campbell. — In a subse- 
 quent case before the House of Lords on appeal from Scotland, 
 this case of Lapsley v. Grierson and the leading case of Cun- 
 ninghams V. Cunninghams cited to the section before^ were 
 brought under review, and doctrines were laid down which can 
 hardly fail to command universal assent. 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 the 
 husband died. And, after this event, the parties lived together 
 as husband and wife in Scotland, where no formal ceremony is 
 required to constitute marriage, for thirteen years, until the 
 man died, they during all this time holding themselves out and 
 being reputed as married persons. And it was adjudged that 
 here was sufficient from which a marriage, entered into after 
 the death of the woman's husband, might as a fact be inferred. 
 Said Lord Cranworth : " Where a man and woman have lived 
 together as husband and wife, at a time when they could not 
 be husband and wife, and where they continue to live together 
 in the same manner after it has become possible for them to 
 become husband and wife, the question whether they have 
 become husband and wife is a question, not of law, but of fact. 
 The law permits them to create that relation between them- 
 selves, and whether they have done so must be decided like any 
 other question of fact. The circumstance that they represented 
 themselves 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 cohab- 
 itation, that is, it may do so as matter of fact ; I cannot think 
 it must do so as matter of law ; and, if that be so, then all 
 which any tribunal can do which has to deal with such a ques- 
 tion is, to look to all the circumstances of the case, and consider 
 whether they do, or do not, lead to the conclusion that the par- 
 
 1 Lapsley v. Grierson, 1 H. L. Cas. « See also, of this case, post, § 510. 
 498, 506, See also Cram v. Burnham, 
 6 Greenl. 213. 
 
 438 
 
CHAP. XXVn.] COHABITATION ILLICITLY BEGUN. § 507 a 
 
 ties did contract marriage at some time after it was possible for 
 them to marry." Agaia : " The circumstance of his having 
 introduced her as his wife during the life of Ludlow [the first 
 husband], when she certainly was not his wife, does not lead 
 me to any conclusion different from that at which I should have 
 arrived if that had not been the case. I am not sure that it 
 does not rather strengthen than weaken the presumption of 
 actual marriage. It shows a strong desire that she should 
 occupy a respectable position iu society ; and it is hard, there- 
 fore, 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." " There is 
 no foundation," said Lord Westbury, " for the argument that 
 the matrimonial consent must of necessity be referred to the 
 commencement of the cohabitation, nor any warrant for the 
 appellant's ingenious argument that, as the consent inter- 
 changed must be referred to some particular period, which he 
 insisted was at the commencement of the cohabitation, and 
 therefore insufScient, the cohabitation, which continued after- 
 wards without interruption, would warrant no other conclusion 
 than that which would be warranted by the consent inter- 
 changed at a time when it was insufficient. I shohld un- 
 doubtedly 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 you find the par- 
 ties able to enter into the contract. The conclusion, therefore, 
 that I derive, and which, unquestionably, is consistent with the 
 language of the cases which have been referred to, is, that the 
 consent between the 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 competent to enter into 
 the contract." Again, speaking of the woman having repre- 
 sented untruly, as it appeared in the case, that a formal mar- 
 riage had been celebrated at a time and place named, this 
 learned person asked : " What moral conclusion, therefore, can 
 you derive from that ? This only, that they were most anxious 
 to have the character of being husband and wife. How far, 
 
 439 
 
§ 508 EVIDENCE OP MARRIAGE. [bOOK IV. 
 
 therefore, does that operate upon the conclusion derived from 
 their subsequent conduct ? Why, it aids the inference that the 
 subsequent cohabitation, when they became free to marry, was 
 a cohabitation that necessarily involved that consent to become 
 husband and wife, which it is plain they desired to become, 
 even at that time, when there was a bar to their contracting a 
 marriage." ^ 
 
 § 508. How in United States. — The American decisions are 
 uot all found to be, on examination, so clear and satisfactory 
 as one would desire ; still, with us, juries have in some cases 
 been permitted to infer a fact of marriage, celebrated after 
 the death of the former matrimonial partner, though there 
 was no direct proof of such fact, and even though there might 
 be a strong probability that no such fact had really trans- 
 pired.^ Where, in one case, a woman had entered into a 
 marriage with a man, believing her former husband to be 
 dead, and, her supposed deceased husband returning, still 
 continued to cohabit under the second marriage, and kept up 
 this cohabitation for several years after her first husband 
 really died, — a second marriage, after the death of the first 
 husband, was presumed.^ And in another case, where a mar- 
 ried man, knowing his wife to be alive, entered into a form of 
 marriage with another woman, who did not know of the 
 impediment, and continued the cohabitation under this second 
 marriage until after the death of the first wife, — a marriage 
 after such death was inferred.* These and other like cases 
 found in our books were, in part, if not all of tliem, decided 
 in States where marriage may be contracted without any 
 formal' solemnization ; and, in such States, the rule ought to 
 be, — the writer regrets that he cannot refer to any case estab- 
 lishing the rule to be so in actual adjudication, — that, where 
 the desire for actual, lawful marriage, as distinguished from 
 a living together in the way of concubinage, is shown to 
 exist in the minds of both the parties, and, such desire 
 
 1 CampbeU v. Campbell, Law Rep. 1 Barb. Ch. 241 ; Starr v. Peck, 1 HiU, 
 1 H. L. Sc. 182, 201, 204, 213, 215. N.Y.270. And see Breakey «. Breakey, 
 See O'Gara v. Eisenlohr, 38 N. Y. 296. 2 U. C. Q. B. 849, 359; Hyde v. Hyde, 
 
 2 Penton v. Reed, 4 Johns. 51 ; Rose 3 Bradf. 509 ; Ferrie v. The Public Ad- 
 V. Clark, 8 Paige, 574; Donnelly u. ministrator, 4 Bradf. 28. 
 
 Donnelly, 8 B. Monr. 113; Jackson v. 3 Fenton v. Reed, supra. 
 Claw, 18 Johns. 346 ; North v. North, -i Donnelly v. Donnelly, supra. 
 440 
 
CHAP. XXVII.] COHABITATION ILLICITLY BEGUN. § 509 
 
 continuing, they are shown to dwell together as husband and 
 wife but for a single day after the impediment is removed, — 
 this shall be held, not merely as raising a prima facie pre- 
 sumption of marriage solemnized after the impediment is 
 removed, but as constituting marriage itself.^ Indeed, there 
 are, in such circumstances, both the matrimonial consent and 
 the actual dwelling together in marriage, and there is the legal 
 capacity to intermarry : if these do not constitute matrimony 
 itself, in distinction from the mere evidence of it, where no 
 formal solemnization is required, it is difficult to say what 
 does. 
 
 § 509. Continued. — 'Where the Tjscw requires Formal Solemni- 
 zation. — Where certain formalities are made necessary, by a 
 statute, to the entering into of a marriage, there the facts 
 spoken of in our last section should be deemed only evidence 
 of marriage, — they could not constitute the marriage itself. 
 And there is an English case, decided by the Court of King's 
 Bench at a time when sound law generally prevailed in the 
 high English tribunals, illustrating, in a clear and forcible 
 manner, some of these propositions. Minors were married ; 
 but, under the circumstances, it was 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 eoc- 
 tremis on her death-bed, and she lived only three weeks. 
 The jury, however, inferred a formal marriage celebrated 
 during this period, under these circumstances, and the court 
 refused to disturb the verdict. Lord Kenyon, C. J., said: 
 " In the case of new trials, it is a general rule that in a hard 
 action, 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 
 doe.s not lie in point of law. [Therefore there was no rule 
 of law violated in this finding by the jury.] .... In this case, 
 though the first marriage was defective, a subsequent one 
 might have taken place. .... If there were any ground of 
 
 1 See Hicks v. Cochran, 4 Edw. 107 ; Northfield v. Plymouth, 20 Vt. 582, 591 ; 
 Tummalty v. Tummalty, 3 Bradf. 369 ; Lapsley v. Grierson, 1 H. L. Cas. 498. 
 
 441 
 
§ 511 ETIDENCE OP MARRIAGE. [BOOK IV. 
 
 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 this 
 former marriage. , And I think we should ill exercise the dis- 
 cretion vested in the court, if, after the jury had presumed a 
 subsequent legal marriage under all the circumstances of this 
 case, we were to set aside their verdict."^ And this case 
 bears a considerable resemblance to one referred to in another 
 chapter, wherein the House of Lords inferred a marriage 
 against very_ strong outside probabilities, in obedience to the 
 rule of law, that all presumptions of law shall be drawn in 
 to support the marriage, where marriage was the desire of the 
 parties.^ 
 
 § 510. Where Real Matrimony not desired. — The reader 
 observes, that, in these cases wherein marriage was inferred, 
 there was greater or less evidence of the existence of a desire 
 on the part of the persons who were living together as husband 
 and wife, to be such in fact. Bat in a leading case which 
 went before the House of Lords on an appeal from Scotland, 
 there was no impediment to a marriage existing at the time 
 when an illicit commerce commenced, consequently it appeared 
 that the parties preferred this connection to one purely matri- 
 monial. Upon this Lord Bldon remarked, that " stich a 
 connection was likely to continue illicit." ^ This is in accord- 
 ance with propositions laid down in earlier sections of the 
 present chapter.* Yet slight circumstances may show — the 
 slightest ought to be pressed into the service of showing — a 
 change in the mind of the parties respecting such their con- 
 nection ; resulting in the presumption of marriage, though 
 the intercourse was wilfully wrongful at first. ^ 
 
 § 511. Continued — Presumed Change. — In a Texas case it 
 was observed : " There is no evidence as to the character of 
 their [the parties'] intercourse in Louisiana ; but on their emi- 
 
 1 Wilkinson t. Payne, 4 T. R. 468. * Ante, § 506 et seq. 
 
 And see Breakey v. Breakey, 2 U. C. ^ Bond v. Bond, 2 Lee, 45, 6 Ehg. 
 
 Q. B. 349, 355. Ec. 28; Hyde u. Hyde, 3 Bradf. 509. 
 
 2 Ante, § 458 ; Piers v. Piers, 2 H. L. And see Rose o. Clark, 8 Paige, 574 ; 
 Cas. 331. Donnelly v. Donnelly, 8 B. Monr. 113. 
 
 3 Cunninghams o. Cunninghams, 2 
 Dow. 482, 502. 
 
 442 
 
CHAP. XXVII.] COHABITATION ILLICITLY BEGUN. § 512 
 
 gration 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 innocence of the cohabita- 
 tion, must be founded on the supposition that, as the inter- 
 course 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 oper- 
 ate, they would voluntarily decline all the honors, advantages, 
 and rights of matrimony, and prefer an association disgraceful 
 to both parties, but peculiarly degrading to the female, and 
 which inflicted upon their innocent offspring the stigma and 
 penalties of illegitimacy. Let it be admitted that this woman 
 had knowingly wandered from the paths of virtue, and that in 
 the weakness of human frailty 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 re- 
 pair, as far as possible, the wrongs he had inflicted, or that the 
 former would of clioice continue^ in a position so humiliating. 
 .... The judgment which would presume that erring human- 
 ity would not repent and reform is too harsh to have place in 
 any beneficent system of law, and we cannot yield our assent 
 to any such doctrine." ^ 
 
 § 512. Common Prostitute — Whites with Blacks. — If the 
 woman is shown to be a common prostitute, or any fact of the 
 like significance appears in the case, then the presumption of 
 marriage will not be so easily raised ; although, even then, the 
 marriage is possible, and in some circumstances should be in- 
 ferred, though the connection was at first illicit.^ In like man- 
 ner, a marriage between a white man and a negro woman will 
 not readily be inferred from cohabitation.^ These propositions 
 rest partly on the authority of the cases cited in the notes, and 
 partly on the reason of the thing. 
 
 1 Yates V. Houston, 3 Texas, 443, 3 Armstrong v. Hodges, 2 B. Monr. 
 450, 451, opinion by Hemphill, C. J. 69 ; ante, § 260. 
 
 2 Conran v. Lowe, 1 Lee, 630, 638. 
 
 443 
 
§ 514 EVIDENCE OF MARRIAGE. [BOOK IV. 
 
 § 513. Presumption of Fact — Law — Its Weight — Desertion 
 — Cohabitation ceasing. — As already observed,^ a marriage is 
 not so easily inferred from mere cohabitation, in those States 
 in whicli the law requires a certain formal solemnization, and 
 provides for the recording of the marriage, as in those States 
 where marriage may be contracted by mere consent passed be- 
 tween the parties. Yet, as has been abundantly shown, it may 
 be so inferred under all forms of marriage law. The presump- 
 tion in which the marriage is made to rest, in these cases, is 
 what is called a presumption of fact, not one of law.^ So it 
 seems, but the distinction between presumptions of fact and of 
 law is not clearly drawn in our jurisprudence, and we should 
 be careful how we speak when discussing a point like this. 
 The weight of the presumption depends upon the circumstances 
 of each particular case ; and it may be more or less controlled 
 by matter happening even after the cohabitation ceased ; as by 
 the cessation of the cohabitation itself, the contracting of an- 
 other marriage, and the like.^ Yet a marriage may be proved 
 by cohabitation and repute, though afterward one of the parties 
 deserted the other.* The effect of desertion, of separation by 
 mutual agreement, and the like, upon the evidence of the sup- 
 posed prior marriage, must depend upon the circumstances of 
 particular cases, rather than upon any one iron rule of law. 
 
 § 514. Actual or Presumed Divorce. — Where there has been 
 a divorce a vinculo of married persons, the innocent one is ev- 
 erywhere entitled to marry again ; and, in a part of our States, 
 the same right is extended also to the guilty. And if this right 
 is not given to the guilty party in his own State, he can gener- 
 ally contract a valid marriage in some other State, by becoming 
 a resident in the other State, or even by going there tempora- 
 rily for the purpose. Suppose, therefore, parties who were 
 once married are found living in separation, and then one or 
 both of them are found marrying third persons, — Is a divorce 
 
 1 Ante, § 504, 509. 574 ; Steadman v. Powell, 1 Add. Ec. 
 
 2 Wilkinson v. Payne, 4 T. R. 468; 58, 2 Eng. Ec. 26; Revel v. Pox, 2 Ves. 
 Northfield u. Plymouth, 20 Vt. 582. sen. 269 ; Weatherford v. Weatherford, 
 But see Cram u. Burnham, 5 Greenl. 20 Ala. 548 ; Hill v. Burger, 3 Bradf. 
 213. 432 ; Cram v. Burnham, 5 Greenl, 213 1 
 
 8 Jackson v. Claw, 18 Johns. 346 ; Senser v. Bower, 1 Pa. 450. 
 Clayton v. Wardell, 5 Barb. 214, 4 < Purcell u. Purcell, 4 Hen. & M. 
 
 Comst. 230; Rose v. Clark, 8 Paige, 507. 
 444 
 
CHAP. XXVII.] COHABITATION ILLICITLY BEGUN. § 515 
 
 from the first marriage to be presumed? Or, must he who 
 would set up such a divorce, prove the divorce by the record ? 
 Now, whatever may be the rule in some localities as to mar- 
 riage, there can be no divorce, in any Christian country, with- 
 out some formal ceremony. Even among the ancient Jews, 
 there was a " writing of divorcement." And in modern times, 
 and among Christian people, certainly in England and in the 
 United States, the divorce is either a legislative or a judicial 
 record. And, in the language of Professor Greenleaf, " oral 
 evidence cannot be substituted for any instrument which the 
 law requires to be in writing ; " ^ but the proof of the matter 
 must be hy the writing itself. And this proposition applies to 
 record writings as much as to any other. " It cannot," said 
 Lord Ellenborough, C. J., " be seriously argued, that a record 
 
 can be proved by the admission of any witness There is 
 
 no authority for admitting parol evidence of it." '■^ Therefore 
 it was held in South Carolina, that a Georgia divorce, being a 
 •matter of judicial record in Georgia, was provable in South 
 Carolina only by the record.^ And this is undoubtedly the 
 general rule in all our States, whether the divorce to be proved 
 be a domestic or a foreign one.* 
 
 § 515. Continued. — But this general rule, like most other 
 general rules, has its limits. Precisely wliat they are, it may 
 not be easy to state. In the same State of South Carolina, 
 where the general rule was, as we have seen, laid down 
 in the general terms, — there being, in the case then under 
 consideration indeed, no intimation of the existence of any 
 qualification, — the following language was, in another case, 
 employed : " That an act of the legislature [and the court 
 was here inquiring whether a legislative South Carolina 
 divorce would be presumed for the purpose of giving valid- 
 ity to a subsequent marriage], after a lapse of twenty 
 years' possession and use, may be presumed, is, I think, too 
 clear to admit of doubt. Like a grant, it may be presumed, 
 notwithstanding the public records show no such thing existed. 
 This, however, is altogether confined to cases in which the leg- 
 
 1 1 Greeul. Ev. § 86 ; 1 Taylor Ev. 3 Xhe State v. McEImurray, 3 Strob. 
 § 370. 33,41. 
 
 2 Rex V. Castell Careinion, 8 East, < Ante, § 477. 
 77. 
 
 445 
 
§ 516 EVIDENCE OF MARRIAGE. [BOOK IV. 
 
 islature might or might not act. It cannot apply where, from 
 the constitution, or a sort of common law of our own, the leg- 
 islature never have and never will act. Best, in his treatise 
 on Presumptions,^ tells us, there is hardly a species of act or 
 document, public or private, that will not be presumed in sup- 
 port of possession. ' Even acts of Parliament may be thus pre- 
 sumed.' Under this authority, if a divorce ever had taken 
 place, or ever could take place, in this State,^ I would not hesi- 
 tate to say, that an act for that purpose ought to be presumed 
 in this case," — being one in which more than twenty years 
 had elapsed since the second marriage.^ Accordingly in a 
 Texas case, where a woman married a husband, with whom 
 she afterward lived for sixteen years ; but the man, at the time 
 of this his second marriage, had a former wife living from 
 whom he had been more than eight years separated, and she 
 had married again two years previous to this marriage, — it 
 was held, that a divorce should be presumed to have taken 
 place in respect to the first marriage, before the subsequent 
 marriages were entered into.* And there is a Massachusetts 
 case in which something like this, where the marriage and 
 divorce were both in a foreign country, was rather assumed 
 than held.6 
 
 § 516. Continued. — It is said by Professor Greenleaf, that 
 the presumption we are considering — he was not speaking, 
 however, of divorce matters — " does not extend to records 
 and public documents, which are supposed always to remain in 
 the custody of the officers charged with their preservation, and 
 which, therefore, must be proved, or their loss accounted for, 
 and supplied by secondary evidence." ^ In support of this 
 proposition, he refers to two cases,^ which, in a general way, 
 do lend countenance to the doctrine ; though the opposite doc- 
 trine is quite as well sustained, on authority, by Mr. Best.^ 
 "For these last two hundred years," says BuUer, J., "it has 
 been considered as clear law that grants, letters-patent, and 
 
 1 Best Presump. p. 144, § 109. 5 Commonwealth v. Belgard, 5 Gray, 
 
 2 Ante, § 38, 42, 43. 95. 
 
 3 McCarty o. McCarty, 2 Strob. 6, 6 i Greenl. Ev. § 20. 
 
 10, opinion by O'Neall, J. 7 Brunswick v. McKean, 4 Greenl. 
 
 * Carroll v. Carroll, 20 Texas, 731. 508 ; Hathaway v. Clark, 5 Pick. 490. 
 
 * Best Presump. 144, 145. 
 
 446 
 
CHAP. XXVII.] COHABITATION ILLICITLY BEGUN. § 517 
 
 records may be presumed from lapse of time. It is so laid 
 down in Lord Coke's time,^ as undoubted law at that time ; 
 and in modern times, it has .been adopted in its fullest 
 extent." ^ And that this doctrine has, with the rest of our 
 common law, found its way across the Atlantic to this country, 
 may be seen from a Virginia case, in which naturalization — 
 a matter of record, corresponding very much to divorce — was 
 presumed from lapse of time, and the exercise, by the per- 
 son supposed to be naturalized, of the rights of citizenship. 
 " The witnesses," observed the judge, " say he was an active 
 partisan at elections, and voted both in North Carolina and 
 after lie removed to this State: that such was the temper of 
 the times, and the watchful jealousy of Americans towards 
 foreigners (as he was known to be) that it would have been 
 impossible for an alien to have acted as he did, with impunity ; 
 and indeed, that no such would have been permitted to remain 
 
 in the country If all this mass of evidence, after the 
 
 lapse of forty-five years, be not suflBcient to authorize the con- 
 clusion that Rice was a citizen, what less than point-blank 
 proof will do ? " ^ 
 
 § 517. Continued. — That it would be unsafe and impolitic 
 to presume a divorce in all cases in which a person, formally 
 married, is found acting as a single person only would be 
 authorized in law to act, is a proposition which no one will dis- 
 pute. On the other hand, that it would be mischievous never 
 to presume a divorce, — there is lapse of time, — there is the 
 impossibility, in many cases, of tliird persons, interested in the 
 marriage, knowing where to look for the record evidence of a 
 former divorce, — there is the liability of records being 
 destroyed, and if the person searching does not know where 
 the record was kept he cannot prove the record destroyed, in 
 order to let in secondary evidence, — many other things for 
 consideration there are, — consequently, that it would be 
 mischievous never to presume a divorce, whatever the circum- 
 stances, is a proposition equally plain with the other. At this 
 point, then, let us drop the discussion, trusting to future adju- 
 dications for further light on this subject. 
 
 1 Referring to Bedle v. Beard, 12 3 ifalle v. Fenwick, 4 Kand. 585, 
 Co. 4, 5. 587, opinion by Carr, J. 
 
 2 Read v. Brookman, 3 T. K. 151, 158. 
 
 447 
 
§ 519 EVIDENCE OP MARRIAGE, [BOOK IV. 
 
 § 518. Continued. — And when this question is further 
 iTnfolded by adjudication, there will arise another class of cir- 
 cumstances to be considered. Suppose a married man enters 
 into a second marriage in disregard of the claims of his living 
 wife. In reason, the probabilities are strong, that the living 
 wife, having now evidence whereon she could obtain a divorce 
 for the adultery, woul3t obtain such divorce before entering 
 upon another marriage. Here is a double presumption of 
 innocence, — when should this double presumption be allowed 
 to dispense with the proof of the record? This point was 
 somewhat involved in the facts of a case already mentioned.^ 
 Then, if a divorce be presumed or proved, — under what cir- 
 cumstances shall the guilty party be presumed to have entered 
 into a valid marriage with the person with whom the invalid 
 one was celebrated ? This point is somewhat illumined by dis- 
 cussions which have gone before in these chapters. 
 
 CHAPTER XXVin. 
 
 SPECIAL VIEWS OP THE PROOFS WHERE THE SOLEMNIZATION WAS 
 IN A POREIGN STATE. 
 
 519, 620. Introduction. 
 
 621-528. Fact of Marriage abroad, without Proof of Foreign Law. 
 
 629-533. What the Proper Proof of Foreign Marriage Law. 
 
 534. Burden of Proof as to Foreign Law. 
 535, 536. Remaining Points. 
 
 § 519. When the Discussion important — Proofs by Cohabita- 
 tion and Repute. — In those Ordinary civil issues wherein mar- 
 riage is provable by cohabitation and repute, the questions to 
 be discussed in this chapter do not often practically arise. 
 Sometimes, indeed, the record is in these issues produced, or 
 witnesses .testify to having seen the marriage performed ; but 
 practitioners, who are wise, will not needlessly entangle them- 
 selves in any doubtful meshes of the law : therefore, where the 
 marriage is a foreign one, and there have been cohabitation and 
 
 1 CarroU v. CarroU, 20 Texas, 731 ; ante, § 615. 
 448 
 
CHAP. XXVIII.] SOLEMNIZED IN FOREIGN STATE. § 521 
 
 repute in the country in which it is to be proved, they will 
 simply present this evidence, unless the other party goes into 
 the other, and makes no mention of the foreign ceremony. 
 But as there are some issues in which this course cannot be 
 taken, and as sometimes the other party will in the ordinary 
 issues insist upon getting at the real facts of a case, the partic- 
 ular discussion designed for this chapter becomes necessary. 
 § 520. How the Chapter divided. — We shall consider, I. 
 The Effect of proving a Pact of Marriage abroad, without prov- 
 ing the Foreign Law ; II. What is the Proper Proof of the 
 Foreign Marriage Law, assuming Proof to be necessary ; III. 
 The Burden of Proof as to the Foreign Law ; IV. A Few 
 Eemaining Points. 
 
 I. The Effect of proving a Fact of Marriage abroad without 
 proving the Foreign Law. 
 
 § 521. General View. — We have seen, in various parts of 
 the foregoing discussions in this volume, that marriage is a 
 thing of universal right, acknowledged everywhere throughout 
 the Christian and even the pagan world, regulated substantially 
 by one rule, cherished by all people, and received into the 
 unwritten code of international law. If, then, there is proof, 
 that, in some foreign country, a man and a woman agreed with 
 each other to be, from the time of the agreement ever after- 
 ward, husband and wife ; and if, in such a case, no evidence 
 appears on the one side or on the other of what is the law of 
 the country in which the agreement was made, — in such cir- 
 cumstances, seeing that, as explained in a previous chapter,^ 
 the court must decide such a case as this in one way or the 
 other, the decision ought to be in favor of the marriage, what- 
 ever technical or local rules may prevail on the subject of mar- 
 riage in the country in which the court sits. Ought to he are 
 the words ; because we shall see, as we proceed, that there is, 
 at least, no uniform current of decision in favor of such a prop- 
 osition, if indeed it is anywhere, in terms broad as thus 
 stated, maintainable upon tlie basis of actual adjudication. 
 Let us narrow the proposition a little, and then we shall find 
 it to rest sufficiently on the decisions of some tribunals, though 
 
 1 Ante, § 411. 
 TOL. I. 29 449 
 
§ 522 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 not upheld by those of others. In its narrowed form it is, 
 that where, besides proof of a mutual undertaking by the 
 parties in a foreign country to be husband and wife, there is 
 evidence also of their continuing afterward to cohabit as such 
 there, — the people of the country accepting and treating them 
 as married, — this is sufficient, though there be no further 
 evidence given of the foreign law. Surely no judicial tribunal 
 ought to reject this proposition ; for, if there should be doubt 
 about the former one, here the parties had their marriage 
 sanctioned by the voice of the community in which it took 
 place ; and, though there might have been an error in the 
 popular judgment on the point, yet, this being a matter per- 
 taining to the foreign law, and the foreign law being a thing 
 of which the judge does not take judicial cognizance, the 
 probabilities, in point of evidence, are, that the popular judg- 
 ment abroad was correct. 
 
 § 522. Continued — Foreign and Domestic distinguished. — 
 And the difference between a foreign and domestic marriage, 
 in point of proof, is,- that the former pertains altogether to the 
 department of evidence, though, indeed, the evidence as to 
 the foreign law is for the judge, and not for the jury ; ^ while 
 the latter pertains in part to the law, and in part to the evi- 
 dence. When a court is to decide upon a question of domestic 
 law, — a thing which, in theory, is absolute, and absolutely 
 known by the judge, ■ — there is no balancing of probabilities, 
 or acting upon presumptions. But when the matter to be 
 settled is one of evidence, presumptions come in, probabilities 
 are balanced ; and the jury, or the judge, as the case may be, 
 guesses the way through by the aid of the double light of pre- 
 sumption and of testimony. And the law presumes a fact to 
 be whatever the usual course of things would make it.^ It is 
 plain that, in general, parties who in the foreign country go 
 through with a form of marriage, and thence onward live 
 together there as husband and wife, are married persons, and 
 not persons living in violation of good order and decency. 
 Consequently the burden is on the party who sets up, that, in 
 the particular instance, the fact does not accord with the 
 
 1 Ante, § 418-421. 2 ^jj^ ggg, as illustrating this princi- 
 
 ple, Bishop Stat. Crimes, § 1051, 1052. 
 450 
 
CHAP. XXTIII.] SOLEMNIZED IN FOREIGN STATE. § 524 
 
 general course of things, to establish, by evidence, the excep- 
 tion. Therefore, in every view, if there has been a foreign 
 marriage proved before a court of our own country, and there 
 is no evidence before the court as to what the foreign law is, 
 the court should say to the jury, — " Gentlemen, as the proba- 
 bilities are in favor of this marriage being good, there is no 
 ground on which you can bring in a verdict to the contrary. 
 The marriage may not, indeed, be good ; but, if truly it is not, 
 it is the duty of the party objecting to show this fact to you." 
 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 considered, — yet, as we are about to see, it is not safe 
 to lay this down as being absolute law now. 
 
 § 523. Proof of La'w, then Marriage — Evidence of the Law. 
 — Proceeding, therefore, more in the line of actual adjudica- 
 tion, we may observe, that, in all cases where a foreign marriage 
 is to be proved, it is an orderly and correct way, to which if 
 the party chooses it no objection can be taken, to prove first the 
 foreign law, and then the marriage solemnized according to 
 the directions of this law.^ And many of the cases are dis- 
 tinct, that the foreign law must be proved.^ But even these 
 authorities have admitted evidence of the foreign law from 
 non-professional witnesses,^ and have also allowed the law to 
 be inferred from the open and public solemnization of the 
 marriage itself,* especially if celebrated by a minister of religion, 
 or other person shown to be in the habit of performing the 
 marriage ceremony.^ 
 
 § 524. That Distinct Proof of Foreign Law not necessary — 
 Qualification of the Doctrine. — A learned Massachusetts judge 
 observed, in a settlement case, where the marriage in contro- 
 
 1 Warner v. Commonwealth, 2 Va. ^ Phillips v. Gregg, 10 Watts, 158. 
 Cas. 95; Fornshill v. Murray, 1 Bland, But see 2 Stark. Ev. 519; and Rex v. 
 479 ; Montague v. Montague, 2 Add. Whetford, supra. 
 
 Ec. 375, 2 Eng. Ec. 350. * Rex v. Brampton, 10 East, 282, 
 
 2 2 Phil. Ev. with C. & H.'s notes, 289, 290 ; Duncan v. Duncan, 2 Monthly 
 209 ; Roscoe's Crim. Ev. 286 ; 2 Burn Law Mag. 612. The point is stated, 
 Ec. Law, by Phillim. 476 c. ; Smith v. but not decided, in Nixon v. Brown, 4 
 Smith, 1 Texas, 621 ; Phillips v. Gregg, Blackf. 167. 
 
 10 Watts, 158 ; Rex v. Whetford, cited 5 The State v. Kean, 10 N. H. 347. 
 5 Bentham's Rationale of Judicial Evi- 
 
 dence, 160. 
 
 451 
 
§ 524 EVIDENCE OP MARRIAGE, [BOOK IV. 
 
 versy was celebrated in a sistei" State of our Union : " It is 
 said on behalf of the plaintiffs, that, a marriage de facto being 
 proved, it should be presumed to be according to the laws. 
 And this appears to be reasonable ; as, if a marriage were 
 proved to have taken place in Prance, for instance, it should 
 seem fit to require the party who denies the marriage to prove 
 its invalidity." ^ And the doctrine thus intimated has been 
 judicially approved in our neighboring province of Upper 
 Canada, where, in its Court of Queen's Bench, the learned 
 chief justice observed : " 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 loci, unless, upon the proof 
 given of the facts and of the law then prevailing, we see clearly 
 that it was otherwise." ^ Yet in this same tribunal, when the 
 question arose upon an indictment for polygamy, and the first 
 marriage was alleged to have taken plaQC in New York, and 
 there was proof of the solemnizing fact having transpired there, 
 but no sufficient proof of the law of New York, the court 
 refused to sustain the conviction.^ Here was a case of conflict 
 between two marriages ; one a domestic, and the other a foreign 
 marriage ; and the court refused to allow the former to be 
 overthrown by the latter, without express proof of the foreign 
 law. And we have American authority pointing in the same 
 direction.* In a polygamy case in Virginia, where the first 
 marriage was abroad, no very formal proof of the foreign law 
 was required, and Staples, J., observed: "When a witness 
 testifies to a marriage in a foreign State, solemnized in the 
 manner usual and customary in such State, by a person duly 
 authorized to celebrate the rites of marriage, and the parties 
 afterwards lived together as man and wife, this is as satisfac- 
 tory evidence of a valid marriage as could be expected or 
 desired ; and, in such case, it is not necessary to prove the 
 
 1 Parker, C. J., in Eaynham v. Can- Case, Macqueen H. L. Pract. 656 ; 
 ton, 3 Pick. 293, 297. Ward v. Dey, 1 Robertson, 759. 
 
 2 Robinson, C. J., in Breakey v. 3 Reg. v. Smith, 14 U. C. Q. B. 566. 
 Breakey, 2 U. C. Q. B. 349, 355 ; s. p. And see Graham v. Law, 6 U. C. C. P. 
 also, by Dargan, J., in Reed v. Hudson, 310 ; Burt w. Burt, 2 Swab. & T. 88. 
 13 Ala. 570. And see Ewen's Case, 6 4 Smith u. Smith, 1 Texas, 621. 
 
 N. Y. City Hall Reo. 65; Trower's 
 452 
 
CHAP. XXVIII.] SOLEMNIZED IN FOREIGN STATE. § 526 
 
 law of such State, or to offer further evidence of a compliance 
 with its provisions." ^ 
 
 § 525. Qualifications of Doctrine, continued. — Is there, in 
 cases where the one marriage is abroad,' and the other is at 
 home, and there is no proof of the foreign law beyond what is 
 involved in the mere proof of the fact of marriage, a conflict 
 of presumption against presumption, such as should require 
 the fact of the foreign law to be established ? ^ Such a case 
 does not depend, as regards the foreign marriage, upon the 
 presumption of the prisoner's innocence alone, but upon the 
 presumption also of the innocence of the persons engaged in 
 its solemnization, and of good order prevailing in the com- 
 munity in which the solemnization takes place, and in which 
 (where this further fact appears) the parties are accepted and 
 received as lawful husband and wife. And presumptions of 
 this class would seem in general to be just as available against 
 defendants in criminal cases, as parties in civil causes. For 
 example, in these very indictments for polygamy, if a domestic 
 marriage is to be proved, there need be, as we have seen,^ no 
 direct evidence of the official character of the person solemniz- 
 ing the marriage ; for, if he was accustomed to act in such 
 capacity, the presumptions of good order and of innocence 
 come in, as against the prisoner, who, if he would deny the 
 authority of the solemnizing person, as against these presump- 
 tions, must prove even this negative. Therefore it is impos- 
 sible to hold the latter Upper Canada decision to be correct 
 in legal principle. 
 
 § 526. Distinct Proof of Foreign Law not necessary, continued. 
 — In a case before the Consistory Court of Dublin, Dr. Kad- 
 clifiF said : " 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 proesumitur pro matrimonio. The case of Steadman v. 
 
 1 Bird V. Commonwealth, 21 Grat. it appeared that the particular mar- 
 
 800, 807, 808. riage testified to was not valid by .such 
 
 ^ In the case stated ante, § 440 a, law. 
 there was proof of the foreign law, and ' Ante, § 490, 496. 
 
 453 
 
§ 527 EVIDENCE OP MAERIAGB. [BOOK IV. 
 
 PowelP is an authority for both these positions."^ In a 
 recent English case, which was an action for criminal con- 
 versation, the marriage was celebrated at Beyrout, iu Syria, 
 according to the rites of the Church of England, by an Ameri- 
 can missionary, not in Episcopal orders. Such a marriage 
 was, according to the English law, a mere contract of marriage 
 fer verba de prcesenti. No proof was given of the Mohammedan 
 law which prevailed at Beyrout ; but the ceremony of marriage 
 was followed by cohabitation. And the case having been sus- 
 pended that the court might have the benefit of the decision in 
 The Queen v. Millis then pending before the House of Lords,^ 
 the proof of the marriage was, after this decision, held by the 
 Court of Exchequer not to be sufficient ; because such a mar- 
 riage, within the principle established by the decision, would 
 have been invalid at the common law. The parties were 
 European, — a fact, however, which could hardly be deemed 
 material.* Yet it may be observed, that, the decision in The 
 Queen v. Millis being contrary to the American law,^ the 
 principle established in this Court of Exchequer case would, 
 adopted in this country, lead to the opposite result ; namely, 
 of holding, prima fade, all marriages to be valid which were 
 celebrated in a foreign country, if the fact of present mutual 
 consent appears, and there is no evidence produced of the 
 foreign law.® 
 
 § 527. Continued. — How, in this Court of Exchequer case, 
 the judges could assume, as a presumption of legal rule, that, 
 even prima facie, the technical common law, as expounded in 
 The Queen v. Millis, whereby the presence of a priest in holy 
 orders is essential to matrimony, — a principle in the law 
 which it was in the same case conceded had not reached even 
 to Scotland, much less to the continent of Europe, — had 
 vaulted over to Asia and become established in Mohammedan 
 Beyrout, to the exclusion alike of the law of nature and of the 
 Mohammedan religion, it is not easy to perceive. Still, as we 
 
 1 Steadman v. Powell, 1 Add. Ec. * Catherwood v. Caslon, 13 M. & W. 
 58, 2 Eng. Ec. 26. 261. 
 
 2 Else V, Else, Milw. 146, 150, 151. 5 Ante, § 279. 
 
 3 See ante, § 275. 6 And see Starr v. Peck, 1 Hill, N. 
 
 Y. 270. 
 454 
 
CHAP. XXVIII.] SOLEMNIZED IN FOREIGN STATE. § 529 
 
 have already seen,^ there are authorities which recognize the 
 doctrine, that the law of the foreign country shall be deemed 
 to be the same as our own, until the contrary is proved.^ But 
 it is not necessary to go over again here the discussion which 
 occupied us in a previous chapter. 
 
 § 528. Continued. — When we are inquiring after the law as 
 it is, there is but little use in attempting to rebut the evidence 
 which comes from adjudication, by showing that the assumed 
 proposition, if received as law, will be inconvenient in its work- 
 ing. Yet in cases of conflict, this line of argument is just, 
 and the conclusions drawn from it should have more or less 
 weight. And the inconvenience of adhering to more rigid 
 rules, in the proof of foreign marriages, than those which the 
 author has in the foregoing sections mentioned as being just in 
 principle, must, in the United States, be very considerable. 
 Here we have congregated immense masses of refugees from 
 poverty and oppression in the old world, not to speak of the 
 fact that our own States are foreign to one another as respects 
 this class of law ; and if, when a foreign marriage is to be 
 proved, the proof of the foreign law must affirmatively go with 
 it, there is no end to the useless trouble which courts and 
 litigants must have in these cases. And this thought brings 
 us to our next sub-title ; namely, — 
 
 II. What is the Proper Proof of the Foreign Law, assuming 
 Proof to be necessary. 
 
 § 529. The Witnesses. — This question was, in a great meas- 
 ure, answered in a previous chapter.^ But there are some 
 points which remain for consideration here. One point, there 
 omitted, relates to the kind of witnesses by whom, when proof 
 of the foreign law is to be made orally, the testimony shall be 
 given. In a late English treatise on the law of Evidence, the 
 writer,* discoursing of the general doctrine, and without par- 
 ticular reference to marriage, observes : " In order to render a 
 
 1 Ante, § 411. ton, 1 Texas, 202, 231 ; Leavenworth 
 
 2 Bonneau v. Poydras, 2 Koh. La. 1 ; v. Brockway, 2 Hill, N. Y. 201. 
 Legg V. Legg, 8 Mass. 99 ; The State v. 3 Ante, § 408 et seq. 
 Patterson, 2 Ire. 346 ; Crosby o. Hus- * 2 Taylor Ev. § 1281. 
 
 455 
 
§529 EVIDENCE OP MARRIAGE. [BOOK TV. 
 
 witness competent to give evidence on a point of foreign law, 
 he 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 admissible witness to prove the laws of his 
 own country ; and an attorney-general, though not a barrister, 
 as is occasionally the case in some of our colonies, may be 
 examined as a person peritiji/S virtute officii.^ So, a Roman 
 Catholic bishop, holding the office of coadjutor 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 merchant 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 
 
 1 Sussex Peerage Case, 11 CI. & P. « Per Lord Lyndhurst, C, stating 
 85, 134. the unanimous opinion of the judges 
 
 2 Id. 124, per Lord Brougham ; Eex and the Lords, in Sussex Peerage Case, 
 V. Picton, 30 Howell St. Tr. 509-512; 11 CI. & P. 134, and overruling Rex v. 
 Ward V. Dey, 7 Notes Cas. 96, 101-106. Dent, 1 Car. & K. 97. 
 
 3 Sussex Peerage Case, 11 CI. & F. 1 Ganer v. Lanesborough, 1 Pea. 18 ; 
 85, 117-134. explained by Lord Lyndhurst, C, in 
 
 * Lacon v. Higgins, 3 Stark. 178, D. Sussex Peerage Case, 11 CI. & F. 124. 
 
 & Ry. N. P. C. 38, s. c. See Mostyn ». Fabrigas, 1 Cowp. 174, 
 
 5 Bristow V. Sequeville, 5 Exch. 276 ; per Lord Mansfield ; Feaubert v. Turst, 
 
 8 Car. & K. 64, s. o. nom. Bristow v. Prec. Ch. 207. 
 De SecqueviUe. 
 
 456 
 
CHAP. XXVIII.] SOLEMNIZED IN FOREIGN STATE. § 530 
 
 presentment of a promissory note that was made payable iii a 
 particular place." ^ 
 
 § 530. Continued. — These doctrines undoubtedly prevail, 
 in a general way, in the United States.- Yet probably in 
 England, certainly here, there can be proof of the laws of a 
 peculiar and isolated foreign people, like the Chinese, by non- 
 professional witnesses.^ And the doctrine itself maintains, 
 that, as to marriage, the evidence of one who, from his calling 
 and his studies, has been required to make himself, and has 
 made himself, particularly acquainted with the foreign mar- 
 riage law, may testify to it, though he is not, as to the general 
 jurisprudence of the country, a lawyer.* Yet the decisions 
 upon this general subject somewhat fluctuate ; while, however, 
 they seem to hold fast to so much as is above stated. In a late 
 Englisli polygamy case, where one of the marriages was cele- 
 brated in Scotland, a woman called as a witness stated, that 
 she was present at the marriage ceremony performed at a pri- 
 vate house in Scotland by a minister of some denomination, 
 that she herself was married in the same way, and that, in 
 Scotland, parties always marry in private houses. But it was 
 held, that she was not a competent witness to the law of Scot- 
 land, and that the marriage was not sufficiently proved. 
 " There may be certain cases perhaps," observed Jervis, 0. 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., 
 remarked : " The House of Lords, in the Sussex Peerage Case, 
 appears to have overruled the decision of Mr. Justice Wight- 
 man, who held, that an unprofessional witness might prove 
 the law of Scotland with regard to marriage." ^ 
 
 1 Vander Donckt v. Thellusson, 8 might be admitted to prove the foreign 
 Com. B. 812. marriage law ; because, said Staples, 
 
 2 See Dougherty v. Snyder, 15 S. & J., " all persons who practise a business 
 R. 84; Tyler v. Trabue, 8 B. Monr. or profession which requires them to 
 306 ; Dyer v. Smith, 12 Conn. 384 ; possess a certain knowledge of the 
 Walker v. Forbes, 26 Ala. 139. matter in hand are experts, so far 
 
 2 Wilcocks V. Phillips, 1 Wallace, as expertness is required." Bird u. 
 Jr. 47. Commonwealth, 21 Grat. 800, 808. 
 
 * Thus, in a Virginia case, it was * Keg. v. Povey, 14 Eng. L. & Eq. 
 held that a minister of religion or priest 549, 6 Cox C. C. 83, 84, 1 Dears C. C. 
 
 457 
 
§ 632 EVIDENCE OP MARRIAGE. [bOOK IV. 
 
 § 531. Continued. — There is an English case in which the 
 question of the proof of marriage rose in a suit for divorce, 
 founded on the allegation of adultery. Tlie only doubt agitated 
 in the case related to the proof of the marriage of the parties, 
 ■which marriage was celebrated at Batavia, in the island of 
 Java. A witness deposed, that he was present in a Lutheran 
 church (the religion of the country being Lutheran or Cal- 
 vinistic) where the marriage ceremony was performed by a 
 person appearing to be in holy orders, but no banns had been 
 previously published, and the witness could not say the mar- 
 riage was valid by the lex loci, and no certificate was produced. 
 The learned judge. Dr. Lushington, held the proof to be suffi- 
 cient, and made the following pertinent observations : " If it 
 was absolutely necessary in all cases of this description, where 
 the marriage was in a foreign country, that I must have actual 
 and direct proof that it was according 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 eastward to the Philip- 
 pine Islands, — that if the law required absolute proof of their 
 validity according to the lex loci, it would amount pretty nearly 
 to a denial of justice. I do not apprehend that such strictness 
 of proof is required." ^ 
 
 § 532. Continued — Confessions. — Now, if there must be 
 
 proof of the foreign law, and if the evidence of this law must 
 
 come from professional witnesses, or at least from witnesses 
 
 particularly acquainted with the foreign law of marriage, the 
 
 result is, that, on principle, where a man is indicted for 
 
 polygamy, and the first marriage was celebrated abroad, and 
 
 32. For prior rulings of Wightman, J., jury belieye that there was in fact a 
 
 see Reg. v. Dent, 1 Car. & K. 97 ; Reg. valid marriage according to the laws of 
 
 V. Simmonsto, 1 Car. & K. 164, 1 Cox that country. Reg. v. Charleton, Jebb. 
 
 C. C. 80; Reg. v. Newton, 2 Mflocly & 267, 1 Crawf. & Dix C. C. 316. 
 
 R. 503. So, in {in Irish case it was i Duncan v. Duncan, 2 Monthly 
 
 held, that on a trial for bigamy, where Law Magazine, 612. See also the 
 
 the first marriage took place in Scot- observations of the same learned judge, 
 
 land, it is not necessary that the valid- in Cood v. Cood, 1 Curt. Ec. 755, 6 
 
 ity of that marriage should be proved Eng. Ec. 452, 456. See also Rex v. 
 
 by a person conversant with the laws Brampton, 10 East, 282. 
 of Scotland ; but it is sufficient if the 
 
 458 
 
CHAP. XXVIII.] SOLEMNIZED IN FOREIGN STATE. § 533 
 
 he has confessed the marriage, evidence of tliis his con- 
 fession cannot be received against him, except so far as it 
 states specific circumstances, unless he is a person who, being 
 a lawyer or otherwise learned in the foreign marriage law, 
 would be competent to be a witness as to the law. Yet, on 
 the other hand, were the marriage a domestic one, the confes- 
 sion would be receivable. Arid in New York, where no con- 
 fessions of marriage are, in this class of issues, deemed 
 "adequate evidence of a domestic marriage, this result was held 
 applicable to a case where the marriage confessed was cele- 
 brated in Ireland. But the learned judge observed : " I see 
 no reason for making a distinction between cases of marriage 
 in a foreign country and marriage in this State. A careful 
 examination of the decisions shows that none has really been 
 recognized." ^ Yet there are various cases which hold the 
 confession of a foreign marriage, deliberately made, to be suffi- 
 cient in these circumstances, as well in respect to the foreign 
 law as to the rest.^ 
 
 § 538. Alleging and proving Foreign Law. — The general 
 doctrine was in a previous chapter mentioned, that a party 
 relying upon the foreign law must set it up in allegation 
 and establish it in proof.^ If we, therefore, reject what is set 
 down in the foregoing sections as the better doctrine, we must 
 turn to that. And that doctrine has been held applicable to 
 marriage celebrated abroad ; * as, for instance. Dr. Swaby in 
 one case observed, in reference to a Scotch marriage and the 
 writing signed by the parties at the time of entering into the 
 marriage : " If this exhibit was meant to be offered to the 
 court as a constituent, either wholly or in part, of the marriage 
 
 1 Gahagan v. People, 1 Parker, 378, * Ward u. Dey, 1 Robertson, 756, 
 386. See, as further illustrating this 762; Montague v. Montague, 2 Add. 
 matter, Welland Canal v. Hathaway, 8 Ec. 375, 2 Eng. Ec. 350 ; Herbert v. 
 Wend. 480, 484 ; Smith v. Elder, 3 Herbert, 2 Hag. Con. 263, 271, 3 Phil- 
 Johns. 105, 114. And see People v. Urn. 58, 4 Eng. Ec. 534, 538, 539 ; Ru- 
 Lambert, 5 Mich. 349. ding v. Smith, 2 Hag. Con. 371 ; Middle- 
 
 ^ Reg. V. Newton, 2 Moody & R. ton v. Janverlin, 2 Hag. Con. 437; 
 
 503, as to which, and the next case, see Scrimshire u. Scrimshire, 2 Hag. Con. 
 
 ante, § 530; Reg. u. Simmonsto, 1 Car. 895; Swift v. Swift, 4 Hag. Ec. 139; 
 
 & K. 164; 1 Cox C. C. 30; Cayford's Price v. Clark, 3 Hag. Ec. 265; Lloyd 
 
 Case, 7 Greenl. 57. v. Petitjean, 2 Curt. Ec. 251. 
 
 » Ante, § 418. 
 
 459 
 
§ 534 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 in question, it should have been pleaded to have been such, as 
 I have said, in quite another form, accompanied by an aver- 
 ment, to be sustained by evidence, that such was its effect by 
 the laws, customs, and usages of Scotland." ^ In such a 
 matter as this, however, a court of common law, or even a 
 court of equity, in this country, should, before passing a deci- 
 sion based upon the English ecclesiastical authorities, consider 
 to what extent the peculiar mode of proceeding in the English 
 tribunal may have influenced the conclusion concerning the ' 
 practice arrived at there. In a Vermont case, Phelps, J., 
 observed : " It is a settled rule that courts do not, ex officio, 
 take notice of the laws of a foreign sovereignty, but they are 
 to be pleaded and proven as facts ; with this qualification, 
 however, that they may be given in evidence, without being 
 specially pleaded, like other matters of fact, iu cases where 
 the rules of pleading do not require the facts to be specifically 
 set forth." 2 
 
 III. The Burden of Proof as to the Foreign Law. 
 
 § 534. General View. — The foregoing discussions of this 
 chapter, revealing a great contrariety of opinion in the judicial 
 mind in respect to this subject, confirm the writer in the opin- 
 ions expressed in the opening sections of the chapter, as to 
 what the rules in this matter should be. If, prima facie, a 
 marriage solemnized abroad is to be deemed to be valid, it will 
 still be competent for the opposing party to introduce evidence 
 of the foreign law, and thus show it to be invalid. The whole 
 matter, therefore, pertains to the burden of proof. And surely 
 it is just that he who sets up an exceptional case — as, in this 
 instance, that a particular marriage abroad was, contrary to the 
 general rule in respect to foreign marriages, entered into in 
 violation of the foreign law — should prove his case. Tiiis is 
 a rule which pervades our whole systein of evidence ; let it, 
 therefore, find no exception in the matter of foreign marriages. 
 
 1 Nokes V. Miiward, 2 Add. Ec. 386, 2 Pickering v. Ksk, 6 Vt. 102, 105. 
 391, 2 Eng. Ec. 356, 359. And see And see, as to marriage, Martin v. Mar- 
 Good V. Good, 1 Gurt. Ec. 755, 6 Eng. tin, 22 Ala. 86 ; Trimble v. Trimble, 2 
 Ec. 452, 458. Ind. 76 ; Richmond v. Patterson, 3 Ohio, 
 
 868. 
 460 
 
CHAP. XXVIII.] SOLEMNIZED IN FOREIGN STATE. ^ § 536 
 
 IV. A few Remaining Points. 
 
 § 535. Difficulty of the Proof — Consequences. — It has been 
 deemed, that the proof of the foreign law may be the more 
 easily dispensed with in proportion as such proof becomes diffi- 
 cnlt.i And surely there is no subject upon which proof of the 
 foreign law is more diflBcult than on the question of marriage ; 
 and, according to a general principle already discussed,^ mar- 
 riage is a thing favored in the law, and all intendments should 
 be bent toward its support. Said Abbott, C. J., speaking of 
 the ordinary case of a common contract 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." ^ And surely to nothing more certainly than to 
 this favored institution of marriage should this observation, 
 with the rule of law of which it is but the expression, be 
 applied. 
 
 § 536. Conclusion. — Thus has the author endeavored, in 
 this chapter, to bring before his readers the conflicting views 
 heretofore entertained by various judicial tribunals, upon an 
 important subject ; and to indicate what, in his opinion, is the 
 true line upon which decisions should travel. In our various 
 States, there are perhaps a few points, settled in some States 
 one way and in others another way, yet so far settled that fur- 
 ther discussion before the tribunals could lead to no change of 
 decision. But in most of the States the law, as to this question, 
 is unsettled, or settled only in part. And although the views 
 of a law writer can have, as such, no authoritative force before 
 any court, yet the reasons which either a law writer or an 
 advocate presents, are, as reasons, just as binding upon the 
 judges as are the reasons which a whole bench of judges put 
 forth in deciding a cause, considered but as reasons. The 
 decision is, indeed, authoritative law in the locality to which 
 the tribunal pertains ; but the reasons, as reasons, carry with 
 them nowhere any force which they would not have if enun- 
 
 1 Phillips V. Gregg, 10 Watts, 158. 190. And see Bristow v. Sequeville 
 
 2 Ante, § 457. 5 Bxch. 275 ; Alves v. Hodgson, 7 T. R. 
 5 Jamea v. Catherwood, 3 D. & E. 241 ; ante, § 411 et seq. 
 
 461 
 
§ 537 EVIDENCE OP MAEEIAGE. [BOOK IV. 
 
 ciated by the boy who blacks the judge's boots. Whatever 
 force the reasons given in this chapter have within themselves 
 will be felt in the coming times throughout our jurisprudence, 
 be their fate what it may for the present moment. So lives all 
 truth ; so dies all error. 
 
 CHAPTER XXIX. 
 
 SOME REMAINING QUESTIONS AS TO THE PROOF OP MARRIAGE. 
 
 § 537. Estoppels: — 
 
 Claitas of Third Persons — Ho'TO' between the Parties. — There 
 are some issues in which the question of marriage is only appar- 
 ently involved, not really so. For as respects third persons, 
 if a man and woman hold themselves out to the community 
 as being husband and wife, while they are not such in fact, 
 they may be subjected to the same liabilities which would ensue 
 from any undertaking based on the assumed marriage, the 
 same as though they were married in fact. Thus, the man 
 may be made to pay for necessaries furnished the supposed 
 wife ; for to permit him to deny his liability would be to suffer 
 a fraud upon the vendor. In such a case, proof of cohabitation, 
 and of the representation of the defendant, is not merely suffi- 
 cient prima facie evidence, it is conclusive ; because the ques- 
 tion at issue is not one of marriage, but of representation.^ 
 Yet where there is no principle of this nature involved, a man 
 may deny a marriage, or the validity of a marriage, which he 
 has once recognized.^ And though the parties may be estopped 
 as to third persons, against whom they cannot be heard to deny 
 their marriage, they will not necessarily be so between them- 
 selves ; as, for example, in a divorce suit.^ Yet it appears 
 that there are circumstances in which they will be estopped as 
 between themselves.* 
 
 1 Gathings v. Williams, 5 Ire. 487 ; 2 Ponder v. Graham, supra. 
 Tomig V. roster, 14 N. H. 114 ; Ponder 3 Amory o. Amory, 6 Rob. N. Y. 
 
 V. Graham, 4 Fla. 23 ; Johnston v. Al- 514. And see Bobbins v. Potter, 98 
 
 len, 39 How. Pr. 506 ; 1 Greenl. Ev. Mass. 532, 
 § 27, 207, 208. 4 Johnson v. Johnson, 1 Cold. 626. 
 
 462 
 
CHAP. XXIX.] REMAINING QUESTIONS A8 TO MARRIAGE. § 539 
 
 § 538. Fact of Marriage : — 
 
 Necessary in most Issues. — We have seen,^ that the phrase 
 " fact of marriage " has a technical meaning in the law of evi- 
 dence ; and that there are but few issues in which this fact of 
 marriage, in the technical meaning of the expression, need be 
 proved. But not using the words technically, probably all the 
 issues which do not fall within the principle stated in the last 
 section involve, in reality, whatever be the form in which the 
 evidence presents itself, the question of what may be truly 
 called marriage or no marriage in fact. And when the party 
 holding the aflEirmative has presented a presumptive case of 
 marriage, the opposite party may, if he can, show that, in truth, 
 there was no marriage, notwithstanding the probabilities of 
 marriage, or the prima facie case of marriage, which the evi- 
 dence thus far adduced presents.^ When the matter comes 
 before a court of common law, the question of marriage or no 
 marriage is, of course, to be decided by the jury, under proper 
 instructions from the bench.* 
 
 § 539. Clandestine Marriages : — 
 
 Effect on the Evidence. — If a marriage is clandestine, this 
 circumstance may considerably influence the result to which 
 the jury or the judge will arrive, on the question of fact. In a 
 previous section,* the reader observed, that Radcliff, in one 
 case, appeared to consider the proven fact of the marriage hav- 
 ing been intentionally a secret one, as, under the circumstances, 
 rather aiding than otherwise the other proofs. But in a New 
 York case the surrogate observed : " The policy of the law is 
 opposed to concealment of the marriage contract. Publicity 
 affords security. Upon this application for letters of adminis- 
 tration, 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 
 
 1 Ante, § 482, 485, 486. ton v. Franklin, 19 N. H. 257 ; Telts v. 
 
 2 Ante, § 434; Taylor v. Taylor, 2 Foster, 1 Taylor, 121. 
 
 Lee, 274, 6 Eng. Ec. 124 ; Jenkins v. * Cockrill v. Calhoun, 1 Nott & 
 Bisbee, 1 Edw. Ch. 377; Stevenson u. McC. 285; Allen w. Hall, 2 Nott &McC. 
 McReary, 12 Sm. & M. 9, 56 ; Dunbar- 114. 
 
 < Ante, § 488. 
 
 463 
 
§ 540 EVIDENCE OF MAEBIAGB. [BOOK IV. 
 
 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." ^ And there 
 can be little doubt, that, in pronouncing these apparently dis- 
 similar opinions, as applied to dissimilar circumstances, both 
 judges uttered the true language of the law. No exact legal 
 formula can be given for this class of cases. 
 
 § 540. Marriage Repute : — 
 
 Effect of, as Evidence — Pedigree. — What weight is tO be 
 given to the single fact that parties are reputed to be married, 
 is a question of difficulty ; because, in the cases, this fact seldom 
 or never stands alone. We have already seen, that, viewed as 
 the shadow cast by the great central fact of matrimonial cohab- 
 itation, it is in the highest degree important.^ There are cir- 
 cumstances in which, in cases of pedigree, family and other 
 like repute is not only admissible, but sufficient evidence;^ 
 yet there is a distinction between these cases and ordinary ones 
 in whicli tlie question of marriage or no marriage is the matter 
 in controversy.* 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." ^ 
 And there are circumstances in which the courts have allowed 
 the evidence of marriage to proceed almost upon the basis of 
 
 1 Cunningham v. Burdell, 4 Bradf. Johns. 37 ; Chancellor v. Milly, 9 Dana, 
 343, 454, 455. 23; Ewell v. The State, 6 Yerg. 364; 
 
 2 Ante, § 438 ; Henderson v. Car- Flowers v. Hanalson, 6 Yerg. 494 ; Ew- 
 gill, 31 Missis. 367 ; Spears v. Burton, ing v. Savery, 3 Bibb. 235 ; Emerson v. 
 31 Missis. 547. White, 9 Post. N. H. 482 ; Mooers v. 
 
 3 Ford V. Ford, 7 Humph. 92 ; Davis Bunker, 9 Fost. N. H. 420 ; Caujolle 
 V. Wood, 1 Wheat. 6 ; Vaughan v. Phe- v. Ferrie, 26 Barb. 177 ; Woodard o. 
 be, Mart. & Yerg. 5 ; Douglass u. San- Spiller, 1 Dana, 179 ; Chapman v. 
 derson, 2 Dall. 116 ; White v. Strother, Chapman, 2 Conn. 347. 
 
 11 Ala. 720; Kelly v. McGuire, 16 Ark. * Westfield v. Warren, 3 Halst. 249. 
 
 555 ; Saunders v. Fuller, 4 Humph. And see Henderson o. Cargill, supra ; 
 
 516 ; Greenwood v. Spiller, 2 Scam. Mima Queen v. Hepburn, 7 Crancb, 
 
 502 ; Kaywood v. Barnett, 3 Dev. & 290 ; Jackson v. Boneham, 15 Johns. 
 
 Bat. 91; Strickland v. Poole, 1 Dall. 226; Brooks w. Clay , 3 A. K. Mar. 545 ; 
 
 14; Jackson v. Cooley, 8 Johns. 128; Shearer «. Clay, 1 Litt. 260; Indepen- 
 
 Speed V. Brooks, 7 J. J. Mar. 119 ; Bir- dence v. Pompton, 4 Halst. 209 ; Wil- 
 
 ney «. Hann, 3 A. K. Mar. 822 ; Elliott mington v. Burlington, 4 Pick. 174; 
 
 V. Peirsol, 1 Pet. 328 ; Waldron v. Tut- Everingham u. Messroon, 2 Brey. 461. 
 tie, 4 N. H. 371; Stein v. Bowman, 5 Chirac v. Keinecker, 2 Pet. 613, 
 
 13 Pet. 209 ; Jackson </. Browner, 18 621. 
 
 464 
 
CHAP. XXIX.] REMAINING QUESTIONS AS TO MARRIAGE. § 542 
 
 the evidence of pedigree, as to reputatiou.i Perhaps it may not 
 be easy to draw, on the authorities, the distinction here ; but 
 in New Jersey the doctrine is laid down, that, although in 
 questions of pedigree the declarations of deceased members of 
 a family as to marriages are admitted, yet, where the marriage 
 is to be shown as a substantive fact, it is within none of the 
 exceptions to the general rule, and this species of evidence can- 
 not be received.^ A Louisiana case holds, that a marriage cel- 
 ebrated in Louisiana, while the State was under the dominion 
 of Spain, may be established by reputation.^ 
 
 § 541. Declarations accompanying Cohabitation : — 
 
 How viewed. — Of a nature akin to reputation may be 
 mentioned the declarations of the parties, made while they 
 are cohabiting as husband and wife. 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 
 declarations be contradictory, it will of course create doubt, 
 and must be left to the jury to determine." * And in a Louis- 
 iana case it was even considered, that, under some circum- 
 stances, the declaration of the parties disclaiming marriage may 
 outweigh the evidence by cohabitation and repute.^ In Missis- 
 sippi, the declarations of a deceased person, whose marriage 
 was in dispute, to the effect that her former husband was dead, 
 were deemed admissible, for the purpose of showing the validity 
 of her second marriage.^ 
 
 § 542. Judicial Records, ^c. : — 
 
 May prove Marriage. — A marriage likewise may be proved 
 by the record of a judicial proceeding sustaining it ; but 
 this is a matter somewhat illustrated in a subsequent division 
 of this work.^ Possibly the reader who is pursuing minute 
 inquiries may find something of interest on this subject of the 
 proof of marriage in the cases here cited in a note.^ 
 
 1 Morgan v. Purnell, 4 Hawks, 95; ^ Spears v. Burton, 31 Missis. 547. 
 Shrewsbury Peerage Case, 7 H. L. Cas. ' And see Sellman v. Bowen, 8 Gill 
 1. See Abington v. North Bridgewater, & J. 50, 54 ; Muirhead v. Muirhead, 23 
 23 Pick. 170. Missis. 97 ; Pegram v. Isabell, 2 Hen. 
 
 2 Westfield v. Warren, supra. " & Munf. 193j Vol. II. § 742 et seq. 
 
 3 Cole V. Langley, 14 La. An. 770. 8 Batthews v. Galindo, 4 Bing. 610, 
 * Colcock, J. in Allen v. Hall, 2 Nott 3 Car. &, P. 238 ; Martin v. Martin, 22 
 
 & McC. 114. Ala. 86 ; Reg. v. Orgill, 9 Car. & P. 80 ; 
 
 6 Philbrick v. Spangler, 15 La. An. 46. Reg. v. Bowen, 2 Car. & K. 227 ; Rex 
 TOL. I. 30 465 
 
§ 544 EVIDENCE OP MARRIAGE. [BOOK IT. 
 
 § 543. Statutes changing the Common-law Evidence : — 
 Fact of Marriage — Polygamy — Crim. Con. — Common-law 
 Rules. — In a New Hampshire case, Parker, C. J., observed: 
 " Were not the authorities so strong it might be questioned 
 whether this evidence of cohabitation and reputation ought not 
 to be admitted in cases of criin. con. and in prosecutions for 
 adultery and bigamy, for the simple reason that it has a legiti- 
 mate tendency to prove the fact. If larceny and robbery and 
 murder may be proved by circumstantial evidence, the inquiry 
 naturally arises why cases of crim. con. &c. may not be so also. 
 It is very clear that they may, except in the matter of proof of 
 the marriage. And it is not easy to perceive why afi exception 
 should be made in favor of defendants in such cases. If they 
 have nothing better to rely upon for a defence than the non- 
 existence of a marriage, they certainly could not complain of 
 being put to show it, after prima facie evidence had been ad- 
 duced on tlie other side." ^ The reader perceives that the 
 learned judge assumes, in this extract, the law of the subject 
 to be in some respects unlike what, in the foregoing chapters 
 of this work, it has been laid down as being. But whatever be 
 the correct common-law doctrine, since there is possibly some 
 room for doubt in regard to it, perhaps legislation, which in 
 some of our States has interposed, did not unwisely in so doing. 
 § 544. Massachusetts Statute. — Thus, in Massachusetts, a 
 statute was passed in 1840, and still further extended in its 
 provisions in 1841, now reduced, in the General Statutes, to the 
 following form : " When the fact of marriage is required or 
 offered to be proved before any court, evidence of the admission 
 of such fact by the party against whom the process is instituted, 
 or of general repute, or of cohabitation as married persons, or 
 any other circumstantial or presumptive evidence from which 
 the fact maybe inferred, shall be competent." ^ Where, under 
 this statute, general repute is relied upon, the repute need not 
 necessarily come from members of the family of the person 
 whose marriage is in question : it is sufficient coming from any 
 
 V. Hassall, 2 Car. & P. 434; Eeg. v. l Toung v. Foster, 14 N. H. 114, 
 
 Woodward, 8 Car. & P. 561; Pegram 119. 
 
 V. Isabell, 2 Hen. & Munf. 193. 2 Mass. Gen. Stat. c. 106, § 22. 
 
 466 
 
CHAP. XXIXj REMAINING QUESTIONS AS TO MARRIAGE. § 645 
 
 other persons who know the circumstances.^ And repute in a 
 foreign country may be received on the question of a foreign 
 marriage.2 How far this statute, and statutes like this in 
 other States, liave operated to change the common law, 
 is a question the answer to which will depend mainly upon 
 the opinion of the person answering, as to what the com- 
 mon law is. But plainly such statutory provisions should not 
 be construed to annul, in this matter of marriage, the doctrines 
 of legal presumption, of presumption of fact, and the like, 
 which have been discussed in the foregoing chapter. The 
 reader should note that this Massachusetts statute makes the 
 evidence to which it points, " competent," yet nothing more. 
 Still it must remain true, that what would prove a marriage 
 on an issue of dower will not necessarily prove it on an indict- 
 ment for polygamy. " Statutes in derogation of the common 
 law,_or of a previous express enactment, are to be construed 
 strictly ; not operating beyond their words, or the clear repug- 
 nance of their provisions ; that is, the new displaces the old only 
 as directly and irreconcilably opposed in terms." ^ This view, 
 originally expressed here, has been confirmed by adjudication ; 
 for, as elsewhere observed,* " the statute does not annul the 
 prior legal presumptions against the first marriage [on a 
 criminal trial for polygamy], and in spite of the statute the 
 proof of the first marriage in a polygamy case differs from the 
 proof of it in most civil causes." 
 
 § 545. General Caution. — We have not adjudications suffi- 
 cient to enable an author to enter upon an exposition, at large, 
 of this class of enactments. But the practitioner is cautioned 
 here, that, if he goes into his case with proof wholly inadequate 
 at the common law, relying upon the statute, he may perhaps 
 encounter an adversary who will show to the judge and jury 
 a beauty and harmony in the common-law doctrines, which, as 
 properly understood, are not varied by a statute, justly inter- 
 preted, the obvious intent whereof, on its face, was principally 
 to remove the mist which ill-considered dicta of judges had cast 
 
 1 Knower v. Wesson, 13 Met. 143. ' Bishop Stat. Crimes, § 155. 
 
 2 Commonwealth u. Johnson, 10 « Bishop Stat. Crimes, § 609. 
 Allen, 196. 
 
 467 
 
§ 547 BTIDBNCB OP MARRIAGE. ^ [BOOK IV. 
 
 around this subject. At the same time, there can be no doubt 
 that the Massachusetts statute, for example, has in some degree 
 wrought a change in the law of the evidence by which marriage 
 is proved. 
 
 CHAPTER XXX. 
 
 SOME REMAINING QUESTIONS AS TO THE PROOF OP LEGITIMACY. 
 
 § 546. Legitimacy as depending on Marriage — Actual Paternity. 
 — The principal question, in most issues of legitimacy, is, 
 whether or not the alleged parents were married. And in 
 determining this question, the rules of the evidence of marriage, 
 as laid down in the foregoing chapters, will be found available. 
 Then, if the child was born of a married woman, the law pre- 
 sumes the husband to have been the father of the child, in 
 which case, the child is legitimate ; but, if the husband was not 
 the father, the child is illegitimate, — a point discussed, as to 
 the evidence, in some preceding sections.^ There was a time 
 when the common law as held in England maintained, that, if 
 a child was begotten while the father was within the four seas, 
 " that is," as Lord Coke explains, " within the jurisdiction of 
 the King of England," its legitimacy was a conclusion of law, 
 not permissible to be rebutted by any evidence, " unless," adds 
 Lord Coke, " the husband hath an apparent impossibility of 
 procreation." ^ But this estoppel, if it may be so called, of the 
 common law, was soon removed by adjudication, so that the 
 fact of each case may be made to appear ; yet we saw, in 
 the former sections already referred to, that the law is still 
 very strict in presuming legitimacy.^ 
 
 § 547 . Husband and Wife as Witnesses — Their Confessions. — 
 We saw also in a previous section,* that, as a general proposi- 
 tion, a husband or wife may be a witness, in behalf of a third 
 
 1 Ante, § 447-449. 3 Barony of Saye & Sele, 1 H. L. 
 
 2 Co. Litt. 244 a. Cas. 507. 
 
 1 Ante, § 494. 
 468 
 
CHAP. XXX.] REMAINING QUESTIONS AS TO LEGITIMACY. § 548 
 
 person, to prove or disprove the asserted marriage. And within 
 this rule, where tlie question is whether certain parties are 
 legitimate or not, the parents, either father or mother, or both, 
 may be brought forward to testify whether or not they were 
 lawfully married.^ But on " the broad ground of general pub- 
 lic policy, affecting the children born during the marriage, as 
 well as the parties themselves," ^ the courts refuse to permit, 
 on the issue of legitimacy or illegitimacy, the married parties, 
 or one of them after the death of the other, to testify whether 
 or not they had carnal access to each other during tlie period 
 within which the child must have been begotten.^ On the other 
 hand, however, the mother of a child, though she may not testify 
 to the non-access of her husband, is receivable as a witness to 
 the fact tlfat another man, not her husband, had access to her.* 
 Lord Hardwicke stated the doctrine as follows : " The wife is 
 not a competent evidence in point of law in this case ; that is, 
 to prove the whole fact ; though it seems she may be a com- 
 petent witness to prove the criminal conversation between the 
 defendant and herself, by reason of the nature of the fact, which 
 is usually carried on with such secrecy that it will admit of no 
 other evidence ; therefore, as to the fact of the defendant's con- 
 versation with her, she may be a good witness ; but this is only 
 from the necessity of the thing. But then, in the present case, 
 it is gone further ; for the wife is the only evidence to prove the 
 absence and want of access of her husband, whereas this might 
 be made appear by other witnesses, and therefore the wife shall 
 not be admitted to prove it, since there is no necessity that can 
 
 justify her being an evidence in this case It must be 
 
 of very dangerous consequence to lay it down in general, that a 
 wife should be a sufficient sole evidence to bastardize her child, 
 and to discharge her husband of the burden of his mainte- 
 nance." 5 A fortiori, therefore, a mere denial of legitimacy, 
 made by the supposed father, when not under oath, cannot be 
 received in evidence against the legitimacy;^ though such testi- 
 
 1 Eex u. Bramley, 6 T. E. 330 ; * Eex v. Eook, 1 Wils. 340. 
 Standen v. Standen, Peake, 32 ; Eex 5 jjex v. Beading, supra, p. 82, 83. 
 V. St. Peter's, Bur. Set. Cas. 25. « Bowles v. Bingham, 2 Munf. 442. 
 
 2 Eex V. Kea, 11 East, 132. And see Tlie State v. Watters, 3 Ire. 
 
 3 Eexw. Eeading, Cas.temp. Hardw. 455. 
 79 ; Patchett v. Holgate, 3 Eng. L. & 
 
 Eq. 100, 15 Jur. 308. 
 
 469 
 
§ 549 EVIDENCE OP MARRIAGE. [BOOK IV. 
 
 mony seems to have been deemed admissible, under special 
 circumstances, in its favor.^ 
 
 § 548. Child begotten before Marriage and born after — Mar- 
 riage after Birth. — Upon a point already somewhat discussed in 
 these pages,^ Mr. Best observes : " It is a prcesumptio juris et 
 de jure, that a child born after wedlock, of which the mother 
 ■was even visibly pregnant at the time of the marriage, must be 
 taken to be the offspring of the husband." ^ Yet if the woman, 
 though pregnant, was not visibly so, this has a material influ- 
 ence upon the case, the extent of which is not perhaps accu- 
 rately defined.* Under the civil law, and by the statutes of some 
 of our States, a marriage of the parents subsequently to the 
 birth of a child renders it legitimate ; ® but such a child cannot 
 take, as legitimate, real estate situated in another State or 
 country where a different rule as to legitimacy is established.* 
 Said Lord Brougham : " In deciding upon the title to real 
 estate, the lex loci rei sitce must always prevail ; so that a per- 
 son legitimate by the law of his birthplace, and of the place 
 where his parents were married, may not be regarded as legiti- 
 mate to take real estate by inheritance elsewhere." '' And upon' 
 this principle there is reason to presume, that, under some cir- 
 cumstances, such as possibly those which attended the case 
 wherein these observations fell from this learned lord, a foreign 
 marriage might be held to be void upon the issue of legitimacy, 
 yet good upon other ordinary issues. 
 
 § 549. Conclusion. — There are, connected with this subject 
 of legitimacy, some other questions which it might be inter- 
 esting to discuss ; but they are so far alien to the main pur- 
 pose of this work, that it is deemed best this chapter should 
 close here. 
 
 1 Kenyon v. Ashbridge, 11 Casey, Grant, 377, 5 Casey, 420; Phillips v. 
 157. See, as to Louisiana, Dejol v. Allen, 2 AUen, 453. 
 
 Johnson, 12 La. An. 853. See also •' Carroll v. Carroll, 20 Texas, 731 
 Bennett v. Toler, 15 Grat. 588. Ash v. Way, 2 Grat. 203 ; Hunter v. 
 
 2 Ante, § 187. Whitworth, 9 Ala. 965. 
 
 ' Best Ev. 2d Lond. ed. 417. « Smith v. Derr, 10 Casey, 126 
 
 * Baker v. Baker, 13 Cal. 87, and Doe v. Vardill, 5 B. & C. 438, 6 Bing, 
 
 cases there cited ; Stegall v. StegaU, 2 N. C. 385 ; Birthwhistle o. Vardill, 7 
 
 Brock. 256 ; Kleinert v. Ehlers, 2 CI. & F. 895, s. o. 
 
 Wright, Pa. 439; Page v. Dennison, 1 ' Fenton v. Liyingstone, 3 Macq. 
 
 470 
 
 Scotch Ap. Cas. 497, 532. 
 
CHAP. XXXI.] HUSBAND TO SUPPORT WIFE. § 552 
 
 BOOK V. 
 
 SEPARATIONS WITHOUT JUDICIAL SENTENCE. 
 
 CHAPTER XXXI. 
 
 THE GENERAL DUTY OF THE HUSBAND TO SUPPORT THE WIPE IN 
 
 COHABITATION. 
 
 § 550. Duty of Cohabitation. — When parties are legally mar- 
 ried, it is in a certain sense their legal duty to dwell together 
 as husband and wife. If they do not, and if they live in Eng- 
 land, they may be compelled by judicial process, as we have 
 already seen,i to come together. This is a proceeding which 
 the laws of none of our States have hitherto authorized ; yet 
 we have plainly inherited the English law to the extent, that 
 it is a thing contrary to the policy of our law, and not to be 
 encouraged by the courts, for married persons to live apart, 
 otherwise than under the authority of a judicial decree. 
 
 § 551. Sometimes Separation justifiable. — Yet as separations 
 do occur without judicial sentence, it becomes important to 
 ascertain by what rules of law such separations are regulated. 
 There are circumstances in which it becomes necessary for a 
 husband to be absent, without his wife, from the matrimonial 
 dwelling. This is not a desertion of his wife ; it is no wrong- 
 ful act of his ; and her remaining behind is no wrongful act of 
 hers. The relations of the parties to each other are not, there- 
 fore, essentially different from what they would be if he con- 
 tinued his presence at the matrimonial habitation. 
 
 § 552. Husband's Absence, Provision for Wife. — Yet, should 
 a husband thus go away, and forbid all persons to have any deal- 
 
 1 Ante, § 29. 
 
 471 
 
§ 554 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 ings with his wife, or with him through her as his agent ; and 
 should he also fail to make any suitable provision for her other- 
 wise ; this would be a case of wrong on his part, — perhaps he 
 would not be in the wrong in going, for business might call 
 him ; but the case would, at least, be the common one of the 
 husband's refusing to furnish his wife with necessaries. What, 
 therefore, is the law on this subject of necessaries ? 
 
 § 553. Husband's Duty to furnisli Necessaries. — When a man 
 marries a woman, he places himself by the marriage under 
 obligation to support her ; and nothing but wrongful conduct 
 on her part can free him from the obligation.^ If he fails to 
 provide her with suitable and proper sustenance, — such sus- 
 tenance as, considering his rank and fortune, a jury under 
 instructions from the court shall deem to be suitable and 
 proper, — any third person who furnishes the sustenance to 
 her may maintain against him an action at law for the same.^ 
 And the obligation to pay for necessaries furnished to the wife 
 binds the husband who is a minor, the same as him who is of 
 full age.^ If, on the other hand, he makes suitable provision 
 for her, the husband is not liable when she, without his appro- 
 bation, expressed or implied, undertakes to pledge his credit, 
 though for what otherwise might be deemed necessaries.^ It is 
 not proposed to discuss here, in any minute way, the question, — 
 What are necessaries for a wife ? because this question belongs 
 quite as much to other departments of our law as to the par- 
 ticular one which is embraced in these volumes. 
 
 § 554. Continued. — "What are Necessaries — Distinguished 
 from Alimony. — It may however be observed, in general terms, 
 that the wife is entitled absolutely to as much food and cloth- 
 ing as are required to preserve her life and health ; and, of 
 course, entitled to suitable medical care and nursing when she 
 is sick. And perhaps this may be deemed to be the extent, or 
 nearly so, of that absolute claim which every wife, under every 
 
 1 1 Bishop Mar. Women, § 49, 58, Gilman v. Andrus, 28 Vt. 241 ; Monroe 
 887,892. „. Budlong, 51 Barb. 493; Keller v. 
 
 2 Johnson v. Sumner, 3 H. & N. 261 ; Phillips, 39 N. Y. 351. 
 
 Atkins c. Curwood, 7 Car. & P. 756 ; 3 Cantine v. Phillips, 5 Harring. Del. 
 
 Shelton v. Pendleton, 18 Conn. 417; 428. 
 
 Montague v. Benedict, 3 B. & C. 631 ; * Holt v. Brien, 4 B. & Aid. 252 ; 
 
 Lane v. Ironmonger, 13 M. & W. 368; Seaton v. Benedict, 5 Bing. 28. 
 472 
 
CHAP. XXXI.] HUSBAND TO SUPPORT WIPE. § 554 
 
 possible contingency, may make upon her husband, irrespective 
 of his ability and standing in society, under the general name 
 of necessaries. There are, however, but few husbands in our 
 country so poor and so low that they are not able, and should 
 not be required, to do better by their wives than this. Yet it 
 is impossible for speech to lay down an absolute rule, indicat- 
 ing just how much, in each case, the husband ought to do 
 pecuniarily for his wife ; and, were such a rule laid down, it 
 might not correctly indicate that provision which the law means 
 when it uses the technical term necessaries. We shall see, in 
 subsequent chapters of these volumes, that, when a wife obtains 
 a divorce from her husband for his fault, she is awarded ali- 
 mony for her support, according to the ability and standing of 
 the husband ; yet the alimony there to be treated of is a differ- 
 ent thing from the necessaries spoken of here, which latter are 
 also, like the alimony, to be furnished, in some measure, in a 
 profusion or scantiness according with the husband's ability 
 and standing. Alimony is payable in money ; and the wife 
 takes it and spends it, or keeps it, as she will : necessaries con- 
 sist of goods and other needful things delivered to the wife for 
 her use. Here is a point of difference between alimony and 
 necessaries. And, in general, we may say, that necessaries 
 are such articles of food, or apparel, or medicine, or such med- 
 ical attendance or nursing, or such provided means of locomo- 
 tion, or provided habitation and furniture, or such provision 
 for her protection in society, and the like, as the husband, con- 
 sidering his ability and standing, ought to furnish to his wife 
 for her sustenance, and the preservation of her health and her 
 comfort. It is not proposed to expand this definition ; but, in 
 a note, the reader is referred to some authorities which he 
 can consult at his leisure.^ And in a subsequent division of 
 
 « 
 
 1 Manbyy. Scott, 2 Smith Lead. Cas. tague v. Espinasee, 1 Car. & P. 356, 
 
 245 and note ; 2 Bright, Hus. & "Wife, 502, s. c. ; Atkins v. Curwood, 7 Car. 
 
 5 et seq. ; Dyer v. East, 1 Vent. 42, & P. 756 ; Clifford v. Laton, 3 Car. & 
 
 1 Mod. 9 ; 1 Selw. N. P. Phil. ed. of P. 15, Moody & M. 101 ; Hunt v. Bla- 
 
 1844, 714 et seq. ; 1 Steph. N. P. 718 quiere, 3 M. & P. 108, 5 Bing. 550 ; 
 
 et seq. ; Garbrand v. Allen, Comb. 450 ; Reeve v. Conyngham, 2 Car. & K. 444 ; 
 
 Morton v. Withens, Skin. 348 ; Seaton Read v. Legard, 6 Exch. 636, 15 Jur. 
 
 V. Benedict, 5 Bing. 28 ; Montague v. 494, 4 Bng. L. & Eq. 523 ; Lane v. 
 
 Baron, 5 D. & R. 532 ; Montague v. Ironmonger, IS M. & W. 368 ; Harris 
 
 Benedict, 3 B. & C. 631, s. o. ; Mou- v. 'Lee, 1 P. Wms. 482 ; Anonymous, 
 
 473 
 
§655 
 
 SEPARATIONS WITHOUT SENTENCE. 
 
 [book V. 
 
 this work, lie will find discussed the question of the wife's 
 power to bind her husband to pay her counsel fees and other 
 like expenses, when she sues him for a divorce, or proceeds 
 against him for a breach of the peace, and other similar mat- 
 ters.^ 
 
 § 555. Husband's Right to manage Expenditures — Forbidding 
 Tradesman. — When the parties are living togetiier as husband 
 and wife in actual cohabitation, the husband is the head of the 
 family ; and, if he chooses to take the matter of providing for 
 the family into his own hands, and exclude his wife from all 
 share therein, he has the right in law to do so. And there are 
 
 2 Show. 132; Dennys u. Sargeant, 6 
 Car. & P. 419 ; Etherington v. Parrot, 
 2 Ld. Raym. 1006, 1 Salk. 118 ; Cany 
 V. Patton, 2 Aslim. 140; Shelton v. 
 Hoadley, 15 Conn. 535 ; Black v. Bryan, 
 
 18 Texas, 453; McClallen v. Adams, 
 
 19 Pick. 332 ; Zeigler v. Dayid, 23 Ala. 
 127. In Breinig v. Meitzler, 11 Harris, 
 Pa. 156, 160, Black, C. J. observed : 
 " What would be extravagant in one 
 man's wife might be very economical 
 in another. The best way to deter- 
 mine what articles of dress a discarded 
 wife may supply herself with at the 
 expense of her husband, is to ascertain 
 what a prudent woman would expect, 
 and a good husband would be willing 
 to furnish, if the parties were living 
 harmoniously together. 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 Uving, and social position of the 
 husband and his family." In Wood 
 V. O'Kelley, 8 Cush. 406, it was held 
 that a husband is not liable, as Jar nec- 
 essaries, to pay the, bill of a clairvoyant 
 doctor, whom the wife may choose to 
 consult, in a. case of illness ; though, 
 in general terms, he is liable for medi- 
 cines and medical attendance furnished 
 a sick wife. But, said the learned 
 judge : " The law does not recognize 
 the dreams, visions, or revelations of 
 a woman in a mesmeric sleep as neces- 
 saries for a wife, for which the husband, 
 
 474 
 
 without his consent, can be held to pay. 
 These are fancy articles, which those 
 who have money of their own to dis- 
 pose 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. Now, upon princi- 
 ple, when a husband is present he may 
 perhaps have the authority to deter- 
 mine by what physician she shall be 
 attended, and according to what school 
 of medicine the prescriptions for her 
 shall be written ; I say, perhaps, for, 
 though such an exercise of despotism, 
 in a case where the wife is of com- 
 petent understanding to judge for 
 herself, is not to be commended, we 
 have probably no decisions showing 
 it not to be in the husband's legal 
 power. But when he is away, having 
 made no special provision for the emer- 
 gency, surely she is to select. Assum- 
 ing, then, that a clairvoyant physician 
 is an impostor, if among doctors not of 
 this sort there are, in our country, di- 
 verse and conflicting schools of physio 
 and of doctrine, and each school tells 
 us the others are sheer impositions 
 upon the public, shall judges and jurors 
 compel litigants to patronize the same 
 school of medicine which they do them- 
 selves ? If not, who shall tell at what 
 point of public odium the man who 
 starts si new style of medical practice 
 must stand, to be an unnecessary doctor 
 in distinction from a necessary one ? 
 1 Vol. II. § 388-392. 
 
CHAP. XXXI.] HUSBAND TO SUPPORT WIFE. § 556 
 
 authorities which seem to indicate, that, in such a case, if he 
 expressly forbids a tradesman to let his wife have any thing on 
 his account, this prohibition is absolute and unqualified in its 
 effect ; and, though the husband should not furnish liis wife 
 even with necessaries most indispensable to her, still she can- 
 not pledge to the tradesman his credit for them.^ Lord Ray- 
 mond reports Lord Holt to have said : " The husband is only 
 liable upon account of his own assent to the contracts of his 
 wife [for necessaries], of which assent cohabitation causes a 
 presumption ; and, when he has declared the contrary, there 
 is no longer room for such a presumption. For the wife has 
 no power originally to charge her husband, 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 observation was, 
 at best, only a dictum of the very learned and profound judge ; 
 for, in the facts of the case, the wife was a druniien, spending 
 woman, who used to pawn her clothes for drink, and the hus- 
 band had made other and sufficient provision for her, and the 
 goods were furnished against his caution to the contrary. And 
 as to this dictum, the better reporter Sallteld puts it in a milder 
 way.^ And there is believed to be no authority, other than 
 dicta worthy of little regard, and observations of perhaps re- 
 spectable writers, for the doctrine which would compel a wife 
 to go without food or clothes if her husband so ordered, instead 
 of permitting her to pledge his credit for them, unless she were 
 also willing to withdraw from the cohabitation and represent 
 that he had turned her out of doors.* 
 
 § 556. Wife's Presumed Authority. — Moreover, inasmuch as 
 it is essential to the comfortable living together of husband and 
 wife, and customary in all communities, for the husband to 
 permit the wife to have some management over the household 
 affairs and household expenses, there is a degree to which her 
 authority to bind him must, in the absence of any specific proof 
 on the subject, be presumed. And the doctrine seems to be, 
 
 1 1 Sel.w. N. p.- 292 ; Etherlngton v. 3 i galk. 118. 
 
 Parrot, 1 Salk. 118, 2 Ld. Raym. 1006 ; ^ And see Hughes v. Chadwick, 6 
 Boulton V. Prentice, 1 Selw. N. P. 298. Ala. 651. 
 
 2 Etherington i). Parrot, 2 Ld.Eaym. 
 1006. 
 
 475 
 
§ 557 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 though the individual cases are composed so much of special 
 facts as not to render the point entirely clear, that in the lan- 
 guage of Bayley, J., " Cohabitation is presumptive evidence of 
 the assent of the husband " to being bound by the wife's con- 
 tract for " necessaries " ^ for herself and family, but nothing 
 more.^ And by the word " necessaries," as here used, is per- 
 haps meant, those things which are prima facie such, not taking 
 into the account the matter of the Inisband's supplying, or fail- 
 ing to supply, the things in sufficient profusion, by his own 
 personal order ; ^ yet, if she obtains an over-supply, whether 
 from one trader or many, the agency will not be presumed.* 
 " I take the law," said Lord Abinger, C. B., " with respect to 
 husband and wife, to be this : Where a wife is living with her 
 husband, and Where, in the ordinary arrangements of her hus- 
 band's household, she gives orders to a tradesman for the ben- 
 efit of her husband and family, and these orders are proper 
 and not extravagant, it is presumed that she has the authority 
 of her husband for so doing. Tlais rule is founded on common 
 sense ; for a wife would be of little use to her husband in their 
 domestic arrangements, if she could not order such things as 
 are proper for the use of a house, and for her own use, with- 
 out the interference of her husband. The law, therefore, pre- 
 sumes that she does this by her husband's authority." ^ Yet 
 still, if the husband notifies the tradesman not to deal with the 
 wife on his account, this fact reverses the presumption ; and, 
 in this case, he is not liable, even for necessaries, on the ground 
 that he has authorized their purchase ; though, if he does not 
 furnish them otherwise, he is liable on the ground mentioned 
 in earlier sections of this chapter. 
 
 § 557. How in General, when living Separate. — But, con- 
 
 1 Montague v. Benedict, 3 B. & C. W. 368; Green v. Sperry, 16 Vt. 390; 
 681,685. ■ Shelton v. Hoadley, 15 Conn. 535; 
 
 2 "If a man and his wife lire to- Furlong v. Hysom, 35 Maine, 332; 
 gether, it matters not what private Fredd v. Eves, 4 Harring. Del. 885. 
 agreement they may make, the wife 3 Ruddock v. Marsh, supra. 
 
 has all usual authority of a wife." " Lane v. Ironmonger, supra; At- 
 
 Pollock, C. B. in Johnston v. Sumner, kins v. Curwood, 7 Car. & P. 756. And 
 
 3 H. & N. 261, 266 ; s. p. Ruddock v. see Reneaux s. Teakle, 8 Exch. 680, 
 
 Marsh, 38 Eng. L. & Eq. 515, 1 H. & 20 Eng. E. & Eq. 345. 
 
 N. 601. And see Etherington v. Parrot, 5 Emmett v. Norton, 8 Car. & P. 
 
 cited and commented on in the last 506, 510. 
 
 eection ; Lane v. Ironmonger, 13 M. &. 
 
 476 
 
CHAP. XXXI.] HUSBAND TO SUPPORT WIPE. § 558 
 
 tinues Lord Abinger, " where the husband and wife are separ- 
 ated from each other, an3 do* not live in the same house, new 
 considerations arise." ^ It is to tliese new considerations that 
 we are to direct our attention througli some remaining chap- 
 ters. 
 
 § 558. Husband's presumed Consent distinguished from Com- 
 pulsory Duty — Accepting Benefit of a Purchase. — And the 
 reader should bear in mind, that we have thus far brought to 
 view two separate grounds upon which, in different cases and 
 circumstances, the liusband is made liable for debts contracted 
 by the wife ; the one is, that he is bound in law to support 
 her, and, if he fails to do this duty, a third person may step in 
 and do it for him, to the extent of furnishing her with what 
 are termed necessaries, and compel him to pay the bill. The 
 other ground, quite unlike this, is that of agency ; he is pre- 
 sumed, without specific proof, to constitute her his agent, to 
 a limited extent ; and, beyond this, he can, if he chooses, 
 make her his agent to precisely the same extent as he can any 
 other person ; but the further degree of agency, in order for 
 him to be charged by reason of it, must appear developed in 
 the facts of the particular case, or be otherwise shown in the 
 proof. Still a third ground of liability will appear in another 
 chapter ; namely, that he has voluntarily accepted a benefit 
 from the credit given him through the wife. Yet, dissimilar as 
 these three grounds seem to be, they are. still traceable to 
 the one foundation principle, agency. Under the circum- 
 stances last mentioned, the husband, in a sense, ratifies the 
 assumed agency of the wife ; in the first-mentioned circum- 
 stances, the law, at the marriage, made her his agent for the 
 purchase of such necessaries as he might refuse to supply, and 
 left him no authority to withdraw the agency.^ 
 
 1 Emmett v. Norton, 8 Car. & P. Young, 6 Ohio, 294 ; Minard v. Mead, 
 606. 7 Wend. 68 ; Dacy v. New York Chem- 
 
 2 See, on the subject of this section, ical Manufacturing Co., 2 Hall, 550 ; 
 and the last. Gray v. Otis, 11 Vt. 628 ; Spencer v. Tisue, Addison, 316 ; Shoe- 
 Green V. Sperry, 16 Vt. 390 ; Benjamin maker v. Kunkle, 5 Watts, 107 ; Web- 
 V. Benjamin, 15 Conn. 347 ; Mackinley ster v. McGinnis, 5 Binu. 235 ; Cany v. 
 V. McGregor, 3 Whart. 369; Abbott v. Patton, 2 Ashm. 140; Wray v. Cox, 24 
 Mackinley, 2 Miles, 220 ; Cox v. Hoff- Ala. 337 ; Sawyer v. Cutting, 28 Vt. 
 man, 4 Dev. & Bat. 180 ; Shelton v. 486 ; Gill v. Eead, 5 R. I. 343 ; Reese 
 Pendleton, 18 Conn. 417; Mulford v. v. Chilton, 26 Misso. 598; Kreba v. 
 
 477 
 
560 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 CHAPTER XXXII. 
 
 THE husband's LAWFUL TEMPORARY ABSENCE PROM THE 
 COMMON HABITATION. 
 
 § 559. Distinguished from turning Wife away. — If a husband 
 should separate himself from his wife, whether temporarily 
 or permanently, and forbid all persons to harbor or trust her 
 on his account, and furnish her nothing himself wherewith to 
 feed, clothe, or shelter her, this would be a case of turning her 
 out of doors ; the separation would be through his fault, even 
 though the calls of business or of patriotism required him to 
 be absent for a time, and it would not be such a separation as 
 is to be treated of in the present chapter. All the cases, 
 therefore, in which the husband forbids a credit to be given to 
 his wife, and at the same time leaves her destitute, will be 
 deferred for consideration in our next chapter. 
 
 § 560. Husband forbidding Tradesman. — Still, if a man, for 
 a temporary, lawful purpose, leaves the common matrimonial 
 habitation, and leaves his wife there, it is legally within his 
 power, and in some extreme circumstances morally so, to 
 forbid, after he has made ample provision for her wants, all 
 persons, or any particular person, from furnishing her a credit 
 on his account.! " The defendant," observed Sutherland, J., 
 in a New York case, " living separate from his family," — and 
 the considerations are the same where the separation is but 
 for some lawful, temporary purpose, as where it is permanent, 
 — "was undoubtedly bound to furnish them with necessaries 
 suitable to their condition, and his omission to do so would 
 furnish them with a general credit to that extent ; but he has 
 a right to supply them in such reasonable manner as he may 
 think proper ; he can employ such mechanics and storekeepers 
 
 O'Grady, 23 Ala. 726 ; Casteel v. Cas- l Holt v. Brien, 4 B. & Aid. 252. 
 teel, 8 Blackf. 240 ; Read v. Legard, 4 And see Keneaux v. Teakle, 8 Exch. 
 Eng. L. & Eq. 523, 6 Exch. 636. 680, 20 Eng. L. & Eq. 345. 
 
 478 
 
CHAP. XXXII.] husband's LAWFUL ABSENCE. § 561 
 
 as he chooses, and can prohibit all others from giving them 
 credit on his account." ^ 
 
 §661. No Bspress Prohibition — Wife's Presumed Agency. 
 
 — But on the ground of presumed agency ,2 if a husband 
 leaves for a temporary purpose the matrimonial habitation, 
 and leaves house and effects in the care of his wife, there is a 
 presumption, the precise extent of which varies with the cir- 
 cumstances, and is not well defined in the law, that she has 
 authority to deal with such property, and to pledge his credit, 
 
 — how far ? Let us see. In an Alabama case, it appeared 
 that a husband, who was a baker, had gone temporarily to 
 California, leaving his wife and bakery behind ; and she had 
 carried on the bakery in her own name, and finally had sold 
 some of the furniture and fixtures, taking therefor notes paya- 
 ble to herself, which notes she afterward transferred in dis- 
 charge of a debt contracted by her about this business. And 
 the court held, that these circumstances did not create a pre- 
 sumption, in law, of authority in the wife to transfer the 
 notes ; yet that the jury might determine, whether or not, as 
 a question of fact, this conclusion of authority should be 
 drawn from the evidence. Said Goldthwaite, J. : " 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 outside 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, leav- 
 ing the wife to carry on his plantation 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, 
 
 1 Kimball v. Keyes, 11 Wend. 33, 2 And see post, § 613 et seq. 
 34. And see Morgan v. Hughes, 20 ' Referring to Church v. Landers, 
 Texas, 141 ; Harshaw v. Merryman, 10 Wend. 79. 
 18 Misso. 106; Mott v. Comstock, 8 • 
 
 Wend. 544. 
 
 479 
 
§ 562 SEPARATIONS WITHOUT SENTENCE. [BOOK V, 
 
 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 author- 
 ized to transfer the notes received from 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 still other cases which tend somewhat 
 toward this view of the law.^ 
 
 § 562. TWife's Presumed Agency, continued. — There is a Con- 
 necticut case in which the doctrine appears to have been laid 
 down, that, where a husband goes temporarily away from home, 
 leaving his family and effects behind, the wife sliall be presumed 
 to have over the effects such control and power of disposition 
 as is usual for wives to have in like circumstances ; also, 
 the full authority which any other agent left in charge of the 
 effects, with the business connected therewith, would under the 
 general law of agency possess. In applying this doctrine to 
 the facts of the case, the court adjudged, that, when the husband 
 went temporarily to one of the soutliern States, leaving his affairs 
 in the hands of no person other than his wife ; and a creditor 
 of the husband attached some standing grass to secure the 
 debt, and the wife thereupon gave permission to the creditor to 
 cut and sell this grass in discharge of the debt, which was 
 accordingly done, this permission given by the wife was an act 
 in excess of her authority, it falling neither within what is cus- 
 tomary for wives, nor what the law of agency gives to the 
 agent in like circumstances ; and, consequently, that the cred- 
 itor, in cutting and selling the grass, committed a trespass 
 against the husband.^ And there are various other cases which, 
 with more or less distinctness, lend strength to this general 
 doctrine.* In a later Coiinecticut case it was held, that the 
 wife, merely as such, has no power to revoke the husband's 
 
 1 Krebs v. O'Grady, 23 Ala. 726, « Cox v. Hoflfman, 4 Dev. & Bat. 
 732. 180 ; Webster v. McGinnis, 5 Binn. 
 
 2 Casteel v. Casteel, 8 Blackf. 240 ; 235 ; Ruddock v. Marsh, 38 Eng. L. & 
 Chamberlain v. Davis, 33 N. H. 121. Eq. 515, 1 H. & N. 601 ; Sawyer v. Cut- 
 
 3 Benjamin v. Benjamin, 15 Conn, ting, 23 Vt. 486 ; Alexander v. Miller, 
 347. 4 Harris, Pa. 215. 
 
 480 
 
CHAP. XXXII.] husband's LAWFUL ABSENCE. § 564 
 
 license to a third person to enter on his land. And where a hus- 
 band, on going from home, gave his wife authority to forbid 
 all persons entering on the land to hunt, a license previously 
 given was deemed not to be revoked by the wife's simply for- 
 bidding the person to hunt upon the land, where she did not 
 state her authority, and nothing appeared showing authority 
 except the mere fact of her being the wife. Said McCurdy, J. : 
 " Mer 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 nuisance 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." ^ 
 
 § 563. Continuea. — In Vermont, on facts nearly identical 
 with those involved in the former of the two Connecticut cases 
 stated in the last section, a directly opposite result was reached. 
 And the learned judges laid down the rule to be, that, where 
 the husband is absent many months from the country, leaving 
 behind, upon his farm, a family consisting of wife and minor 
 sons, the wife is to be deemed the head of the family, with 
 authority, as his agent, over all such ordinary business as may 
 arise ; also, in the language of Redfield, J., over " any such 
 extraordinary occurrences as it might be anticipated would 
 sometimes occur ; " her acts, as his agent in these matters, 
 being binding upon him.^ 
 
 § 564. Continued — How in Principle. — If we consult those 
 general principles which the law has provided as the guides to 
 our reason, we shall arrive at the following conclusions respect- 
 ing this matter upon which judicial opinion seems to be not 
 altogether harmonious. When a man who is on terms of 
 cohabitation with his wife absents himself temporarily from his 
 home, at the call of business, or for some other lawful purpose, 
 he should be presumed, in the absence of special circum- 
 stances, to intend neither that his business at home shall stand 
 still, nor that his household shall starve. If, therefore, he 
 commits, in such a case, his affairs to the care of no tliird per- 
 son, and leaves behind no third person within whose ordinary 
 
 1 Kellogg V. Robinson, 32 Conn. 335, 2 Felker v. Emerson, 16 Vt. 653. 
 341. 
 
 VOL. I. 31 481 
 
§ 665 SEPARATIONS WITHOUT SENTENCE. [bOOK V. 
 
 duties as his agent or servant the oversight of his business lies, 
 it must be presumed that he intended it should be overseen by 
 his wife, at least as far as such oversight is necessary to 
 prevent loss, either from the cessation of business, or from its 
 wrongful or utterly reckless conduct. While he remained at 
 home, the division of cares between himself and her might 
 have left her entirely unoccupied about those particular things 
 in which women do not generally concern themselves, yet even 
 then her interests were in a sense one with his in respect to 
 them ; and, on his going: away, not only these interests remain, 
 but the husband, who in ordinary circumstances guards his 
 wife's interests in his own person, is not present as before to 
 protect them, therefore the wife becomes the natural and proper 
 person to do for herself what ordinarily the husband does for 
 her. And although it is in the power of the husband, when he 
 absents himself, to place his own affairs in what hands he 
 chooses, and the care of them carries with it in a certain sense 
 the care over tlie interests of the wife, yet, neglecting to 
 appoint any third person, he must intend that she whose iden- 
 tity is in law merged in his should stand as his agent for the 
 common good. There is no alternative between this supposi- 
 tion and the violent and inadmissible one, that he left his own 
 interests and his family's to perish together. Yet this would 
 not justify the wife, during his absence, in entering upon new 
 enterprises ; or, in ordinary exigencies, making sale of his fixed 
 property; or doing those things which particularly require the 
 personal superintendence of tlie husband. It would, however, 
 justify her in making a sale to prevent a serious loss, and the 
 like. And in the one class of cases the husband should be 
 bound by her acts; in the other, not. When a case of this 
 sort comes before a judicial tribunal, the judge should lay 
 down to the jury these general principles of law,, together with 
 any special suggestions which might grow out of the particular 
 facts ; and then the jury should decide, whether, in the partic- 
 ular case, the agency ought to be inferred. Of course, if the 
 particular matter were one usually intrusted to wives, this 
 jvould furnish independent ground on which the inference of 
 agency might rest. 
 
 § 565. Insanity of Husband or Wife. — If the husband or the 
 482 
 
CHAP. XXXII.] husband's LAWFUL ABSENCE. § 566 
 
 wife is insane, the obligation of the husband to support his 
 wife remains, whether he or she is the one on whom the insanity 
 has fallen. If she is in an insane asylum, the duty rests on 
 him to maintain her there,^ and he may be sued for necessaries 
 there furnished her ; '^ if he is in the asylum, she may pledge 
 his credit for necessaries while he there remains.^ Indeed the 
 general doctrine is, that, in all cases where the separation of 
 husband and wife is without her fault, he is liable to any third 
 person who furnishes her with necessaries during the separation.* 
 And when she dies, in his absence, a third person who provides 
 burial for her, suitable to her husband's rank and fortune, may 
 recover the expenses of the husband.* 
 
 § 566. Continued. — In Pennsylvania it was held, that the 
 authority of a wife to pledge the credit of her insane husband 
 does not include the general right to manage his affairs ; con- 
 sequently she cannot transfer his property to a particular 
 creditor in payment of a debt to the prejudice of others.® The 
 Indiana tribunal has also decided, that the husband cannot be 
 made to pay for support furnished to his wife in a poor-house ; 
 for, if she was a proper subject to be committed there, no per- 
 son is so liable ; if she was not, the receiving of her by the 
 overseers of the poor was a wrongful a.cty No reason occurs 
 to the author for objecting to this Pennsylvania decision ; but, 
 as for the Indiana one, while it is doubtless correct under the 
 statutes and jurisprudence of the State, there are other States 
 of our Union, in which plainly the opposite result would be 
 reached ; or, at least, in which tiie doctrine would be much 
 qualified. In Maine, therefore, it has been held, that, where 
 a husband, well able to support his wife who is insane, neg- 
 
 1 Wray v. Wray, 33 Ala. 187. held, that, though any person in whose 
 
 2 Wray v. Cox, 24 Ala. 337. house a human being dies, is bound to see 
 
 3 Read v. Legard, 4 Eng. L. & Bq. the corpse buried, yet, after a wife has 
 523, 6 Exch. 636 ; Alexander v. Miller, buried her husband, she has no longer 
 4 Harris, Pa. 215 ; Kichardson v. Du any control over his dead body, but the 
 Bois, Law Rep. 5 Q. B. 51. right of removal is with his next of kin. 
 
 < Pomeroy v. Wells, 8 Paige, 406. Wynkoop v. Wynkoop, 6 Wright, Pa. 
 
 6 Jenkins v. Tucker, 1 H. Bl. 90. 293. 
 
 This is so even where the wife is liv- 6 Alexander v. Miller, 4 Harris, Pa. 
 
 ing separate from her husband. Am- 215. 
 
 brose v. Kerrison, 4 Eng. L. & Eq. 361, ^ Switzerland v. Hilderbrand, 1 Ind. 
 
 10 C. B. 776. In a curious case which 555, 1 Smith, Ind. 361. And see Nor- 
 
 recentlv arose in Pennsylvania it was ton v. Rhodes, 18 Barb. 100. 
 
 483 
 
§ 568 SEPABATIONS WITHOUT SE2sTENCE. [BOOK V. 
 
 lects to protect and provide for her, aud she wanders into an 
 adjoining town, where she receives support, the expenses of 
 which are paid in the first instance by the town in which she 
 is relieved, and then refunded by the town in which the 
 husband's settlement is, and wherein he resides, — the latter 
 town mav recover, against the husband, the expenses thus 
 incurred.^ These things depend much upon the local law of 
 the particular State. 
 
 § 567. "Wife left in Care of Surgeon. — Where a husband left 
 his wife, who was sick, in the care of a surgeon at a distance 
 &om his home, and the surgeon, after the lapse of a few weeks, 
 performed an operation upon her, soon after which she died, 
 the court held, that he could recover of the husband without 
 proving the operation to be necessary and proper, or notice 
 given by him to the husband, or such a state of facts as to make 
 it dangerous to wait untU notice could be given ; the burden 
 of proof being on the husband to show the contrary.^ 
 
 CHAPTER XXXTTT. 
 
 SEPAHATIOXS THEOUGH THE HUSBAND'S FAULT. 
 
 § 56S. General Doctrine —;- Must fomisli Necessaries. — The 
 views put forth in the last two chapters lead necessarily to the 
 result, that, whenever a husband and his wife are living apart 
 through the fault of the husband, he is under a legal duty to 
 supply her wants, the same as though the cohabitation con- 
 tinned. In other words, he is in these circumstances charge- 
 able for necessaries, which any third person may furnish the 
 wife ; unless, still mindful of his duty on this point, he has 
 made for her suitable provision.^ This doctrine is usually 
 
 1 Alna V. Plnmmer, i GreenL 258. 3 See Seese v. CMton, 26 Misso. 
 And see Howard i. Whetstone, 10 598; Eemp v. Downham, 5 Hairing. 
 Ohio, 365 ; ilonson v. Williams, 6 Del. 417 ; Eutherford v. Coie, 11 Misso. 
 Gray, 416 ; Rumney v. Keyes, 7 Jf. H. 347 ; Emery v. Emery, 1 T. & J. 501, 
 571. 6 Price, 336 ; Todd v. Stokes, 1 Ld. 
 
 2 McCOaUen v. Adams, 19 Pick. 333. Eaym. 444, 12 Mod. 244 ; Enmnejr v. 
 
 484 
 
CHAP. XXXIII.] THROUGH HUSBAND'S FAULT. § 569 
 
 stated to be, that, where the husband abandons his wife,i or 
 turns her out of doors,^ or brings a common prostitute into the 
 house,^ or treats her with extreme cruelty,* or commits adul- ^ 
 tery,^ the consequence above mentioned follows. 
 
 § 569.' "Wife leaving Husband for Cause — Ground of Divorce 
 — Not Ground. — The general doctrine on this subject is 
 familiar ; and, as laid down in the last section, it is everywhere 
 accepted. But there is room for doubt in a class of cases 
 which have not hitherto received so exact a consideration as 
 they ought. When we come to discuss the question of divorce, 
 we shall see, under the title Desertion, that, if a husband or 
 wife abandons the matrimonial dwelling, the abandoning is not 
 an act of desertion by this party, if the conduct of the other 
 was such as to render the refusal to cohabit legally justifiable.^ 
 But it is debatable ground whether the one in fault in such a 
 case must have gone so far, in order to justify the other in 
 abandoning the cohabitation, as to lay the foundation for a 
 proceeding for a divorce. And what will be set down in these 
 volumes as the better doctrine is, that the wrong must have 
 proceeded to this extent; in other words, when a husband or 
 wife breaks off cohabitation because of the alleged improper 
 conduct of the other matrimonial partner, such conduct must 
 have proceeded so far as to furnish ground for divorce, or the 
 one so breaking off the cohabitation is guilty of the offence of 
 desertion.^ Suppose, then, the wife abandons her husband, 
 and undertakes to pledge his credit for necessaries, — must 
 the third person who trusts the husband on the ground of this 
 pledge, and against the husband's consent in fact, prove such 
 wrongful conduct in him as would authorize the wife to carry 
 
 Keyes, 7 N. H. 571 ; Walker v. Simp- Zeigler v. David, 23 Ala. 127 ; Billing 
 
 son, 7 Watts & S. 83. v. Pilcher, 7 B. Monr. 458 ; Harris v. 
 
 1 Casteel v. Casteel, 8 Blackf. 240; Morris, 4Esp. 41. 
 Cunningham v. Irwin, 7 S. &B. 247; ' Tempany v. Hakewill, 1 Fost. & 
 
 Breinig v. Meitzler, 11 Harris, Pa. F. 438 ; Descelles v. Kadmus, 8 Iowa, 
 
 156 ; Clement v. Mattison, 3 Rich. 93 ; 51. 
 
 Hall V. Weir, 1 Allen, 261 ; Cartwright « Mayhew v. Thayer, 8 Gray, 172 ; 
 V. Bate, 1 Allen, 514 ; McGahay v. Snover v. Blair, 1 Dutcher, 94 ; Clem- 
 Williams, 12 Johns. 293 ; McCutchen ent v. Mattison, supra. 
 V. McGahay, 11 Johns. 281; Blowers 5 Sykes v. Halstead, 1 Sandf. 483; 
 V. Sturterant, 4 Denio, 46. Bennett v. Smith, 21 Barb. 439. 
 
 3 Allen V. Aldrich, 9 Fost. N. H. 63 ; « Post, § 795 et seq. 
 Johnston v. Sumner, 3 H. & N. 261 ; 
 
 485 
 
§ 570 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 on successful proceedings against him for divorce ? Plainly 
 he need not go further, — must he go so far? In South Car- 
 olina, wliere no divorces are ever granted, he need not, of 
 course, go so far ; but, according to views which to the author 
 of these volumes seem just, in those States where divorces are 
 allowed by law, the judges should presume, in the absence of 
 express legislative declaration to the contrary, that, when the 
 legislative judgment defined the grounds of divorce, it thereby 
 defined the causes for which a wife or husband might lawfully, 
 without the consent of the other party, abandon the matrimonial 
 cohabitation. And if a wife unlawfully leaves her husband, 
 without his consent, she does not, as we shall see in the next 
 chapter, carry with her the husband's credit. 
 
 § 570. Continued. — In an early edition of this work, the 
 doctrine was stated thus : It is familiar law that the husband 
 is bound to provide his wife with necessaries, even while she is 
 living apart from him^nless she is in fault as to the separa- 
 tion ^nd that, when he fails to supply her, another person 
 may do it and charge him.^ But when he does not consent to 
 her going away, the inquiry arises, whether his conduct has 
 been such as to justify her in leaving him, and thus bind him 
 to third person's supplying her. If he is guilty of legal cruelty, 
 clearly he is bound ; ^ so doubtless is he, if he has committed 
 any other matrimonial offence, for which the law authorizes a 
 divorce, either from bed and board, or from the bond of matri- 
 mony .^ There is a case in which it was held, that in such 
 circumstances the husband is not to be chargeable, though 
 living in adultery with a common woman, whom he has taken 
 
 ' " When the wife lives separately 601 ; Allen v. Aldrich, 9 Fost. N. H. 
 
 fi-om her husband without any fault of 63. 
 
 her own, the law provides, that her 2 Houliston v. Smyth, 3 Bing. 127, 
 
 husband shall be liable for her ade- 2 Car. & P. 22, 10 J. B. Moore, 482; 
 
 quate maintenance." Lord Ellen- Ayer v. Ayer, 16 Pick. 327 ; Clement 
 
 borough in Liddlow v. Wilmot, 2 Stark, v. ' Mattison, 3 Rich. 93 ; Evans v. 
 
 86. And see Emmett v. Norton, 8 Car. Fisher, 5 Gilman, 569 ; Howard v. 
 
 & P. 506; and Am. note to 2 Smith Whetstone, 10 Ohio, 865; Emery v. 
 
 Lead. Gas. Am. p. 365, 366 ; Rumney Emery, 1 Y. & J. 501. 
 V. Keyes, 7 N. H. 571 ; Shaw v. Thomp- 3 See the observations of Lord Mans- 
 
 son, 16 Pick. 198 ; Read v. Legard, 15 field in Ozard <,. Darnford, 1 Selw. N. 
 
 Jur. 494, 4 Eng. L. & Eq. 523; 2 Kent P. 11th ed. 294. And see Houliston v. 
 
 Com. 148 ; Emery v. Emery, 1 Y. & J. Smyth, supra. 
 486 
 
CHAP. XXXni.] SEPARATIONS THROUGH HUSBAND'S FAULT. § 571 
 
 I 
 
 into his house ; ^ but the doctrine of this case has not been 
 approved of since, the contrary indeed has been ruled,^ and it 
 is clearly not law either in England^ or the United States.* 
 And there are cases which seem to give color to the idea, that 
 gross immorality and indecent conduct, short of actual adul- 
 tery, — such as bringing 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 Bron- 
 son, 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 returnJ The 
 true view plainly is, that, when the wife is away without the 
 husband'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. 
 
 § 571. Continued. — There is a Massachusetts case, in 
 which, by way of dictum, the judge who delivered the opinion 
 seemed to maintain an opposite doctrine to the one which in 
 these sections is deemed to be best supported in reason.^ There 
 is another Massachusetts case which perhaps wears the con- 
 trary aspect ; ^ but neither in Massachusetts nor in our States 
 generally is this question apparently so decided as to preclude 
 future investigation. The fact that formerly, in England, the 
 question of divorce was adjudicated in a tribunal whose rules 
 of decision were little known to the common-law courts in 
 which suits for necessaries were brought, led the latter to make 
 little mention of ecclesiastical authorities in their decisions 
 
 1 Harwood v. Heffer, 3 Taunt. 420. ' Blowers v. Sturtevant, supra ; 
 
 ^ Liddlow V. Wilmot, supra ; Aldis Fredd v. Eves, supra. 
 
 V. Chapman, 1 Selw. N. P. 11th ed. 6 But see, on this subject, Ayer v. 
 
 298 ; Hunt v. Blaquiere, 3 Moore & P. Ayer, supra. 
 
 108 ; Sykes v. Halstead, 1 Sandf. 483. ' Emery v. Emery, supra. 
 
 ' Houliston V. Smyth, supra. ^ Berlen v. Shannon, 3 Gray, 887, 
 
 * Blowers v. Sturtevant, 4 Denio, 390. 
 
 46, 49 ; Fredd v. Eves, 4 Harring. Del. ' Hancock v. Merrick, 10 Cush. 41. 
 385, 387. 
 
 487 
 
§ 673 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 upon this subject. And the habit, once adopted, remained, 
 and was transmitted to this country. But there is no prin- 
 ciple of our law which requires a judge to close his eyes to 
 light, on the ground that it did not fall on his predecessor's eyes 
 though open. Some further views on this subject appear iu 
 our chapter on Desertion, in the present volume. 
 
 § 572. Nature of the Credit — Notice. — The credit for neces- 
 saries, which a discarded wife carries with her, is a general 
 credit ; and the husband cannot restrict it by giving notice to 
 a particular person not to trust her.^ And if the wife was 
 justified in leaving the husband on account of his misconduct, 
 a notice to her to return will be of no avail to abridge the 
 credit.^ 
 
 CHAPTER XXXIV. 
 
 SEPARATIONS THROUGH THE WIFE'S FAULT. 
 
 § 573. General Doctiine — Husband's Consent to be holden. — 
 If the wife abandons her husband without justifiable cause ; ^ 
 or if she commits adultery, and the husband for this reason 
 turns her away ; * or, a fortiori, if she voluntarily lives absent 
 from him in adultery ; * or, if otherwise she is living apart 
 from him without bis consent or fault : ^ he is not, unless by 
 express or implied agreement, liable for necessaries which a 
 third person may furnish her on her order. There are cases, 
 however, in which, though the separation was by the fault of 
 the wife, the judge or the jury has gone a considerable length 
 in presuming agency in her, where any special conduct of his 
 has laid the foundation for the presumption.'^ Thus where, 
 after the abandonment, the husband made a proposition to his 
 
 1 Bolton V. PreDtice, 2 Stra. 1214; •■ Hunter v. Boucher, 3 Pick. 289; 
 
 Harris v. Morris, 4 Esp. 41. Ham v. Torrey, Selw. N. P. 271, 276. 
 
 - Emery v. Emery, 1 Y. & J. 501, 6 * Morris v. Martin, 1 Stra. 647; 
 
 Price, 336. Manwairing v. Sands, 2 Stra. 706. 
 
 ' Williams v. Prince, 3 Strob. 490 ; 6 Rutherford v. Coxe, 11 Misso. 347. 
 Brown v. Patton, 3 Humph. 13-5 ; Cany ' See Collins v. Mitchell, 5 Harring. 
 
 V. Patton, 2 Ashm. 140; Allen v. Aid- Del. 369; Norton v. Fazan, 1 Bos. &P. 
 
 rich, 9 Fost. N. H. 63. And see Barnes 226. 
 V. AUen, 30 Barb 663. 
 488 
 
CHAP. XXXIV.J THROUGH WIPE'S FAULT. § 675 
 
 son-in-law to supply her with necessaries, and she was sick, 
 and the son-in-law procured the services of a physician, the 
 husband was held liable ; the court observing: " Although the 
 proposition as to the manner of compensating tlie son-in-law 
 was not accepted by him, still the letter may be understood as 
 an understanding to pay for necessaries. The sympathy ex- 
 pressed in tlie 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." 1 .^,^^ 
 
 § 574. 'Wife committing Adultery — Mutual Guilt. — Where* 
 husband and wife are living apart under such circumstances 
 as to render him liable for necessaries furnished her, if she 
 then commits adultery, his liability ceases from the time when 
 the adultery is committed.^ And it has been even laid down 
 in England, and it seems there to be accepted as sound in law, 
 that, if a husband commits adultery, and then turns his wife 
 out of doors, and thereupon she commits adultery herself, the 
 husband's liability to pay for necessaries furi^ished her ceases 
 when her adultery commences, though she thereupon offers to 
 return to him, and he refuses to receive her.^ The view 
 taken of the question by Mr. Justice BuUer, at a nisi prius 
 trial, was, " that the husband was not bound to receive the 
 wife after she had committed adultery, and consequently was 
 not bound to support her." And by the court in bank it was 
 observed : " If the wife had instituted a suit in tlie ecclesias- 
 tical court against the husband for restitution of conjugal 
 rights, they would not have assisted her."* 
 
 § 575. Mutual Guilt, continued. — It seems to the writer of 
 these volumes, that, if we look at this point in the light of legal 
 reason, we shall arrive at the following conclusion : The hus- 
 band and wife, by the act of marriage, established between 
 themselves an identity of interest, and her personal property 
 and effects became vested in him. Thereupon the law laid on 
 him the duty to support her ; and, though she might by her 
 
 1 Brown v. Patton, supra, p. 139, in effect, afSrmed in Rex v. Flintan, 1 
 opinion by Green, J. B. & Ad. 227. 
 
 2 Cooper V. Lloyd, 6 C. B. N. s. 519 ; * Govier v. Hancock, supra, p. 603, 
 Atkyns v. Pearce, 2 C. B. n. s. 763, 604. 
 
 3 Govier v. Hancock, 6 T. E. 603; 
 
 489 
 
§ 576 SEPARATIONS WITHOUT SENTENCE. [BCTOK V. 
 
 wrongful conduct forfeit her claim to a support, and disqualify 
 herself to appear as a plaintiff against him in a suit for divorce 
 when he had also broken the common matrimonial obhgation, 
 yet, if he were guilty, why should she be the only one to starve ? 
 In cases of mutual guilt, the plaintiff in a divorce suit does not 
 stand rectus in curia ; therefore such a plaintiff cannot proceed 
 with the action. But although a plaintiff, who has furnisiied 
 necessaries to a wife living apart from her husband sues, in a 
 certain sense, in her stead, yet truly he is an independent 
 person, who, in giving subsistence to a needy human being, 
 did a meritorious act ; while it would be no hardship upon the 
 husband to hold, that he should not be permitted to complain, 
 in defence to the action, of the same thing in his wife of which 
 he is guilty himself. Perhaps the doctrine thus intimated 
 needs to be qualified ; but to hold, that, in all circumstances, 
 a man may commit adultery, and drive away his wife, without 
 being obliged to do any thing for her support, or refund any 
 of the property he got by her, if he can goad her in a single 
 instance to follow his example of evil-doing, is to place wicked- 
 ness in the man on an elevation quite too high above the place 
 occupied by wickedness in the woman. 
 
 § 576. Continued. — In a Massachusetts case the court held, 
 that, if a husband deserts his wife,- and takes measures by 
 which she is led to believe, and does believe, he is dead, where- 
 upon she marries another man ; then, if afterward she finds he 
 is alive, and leaves the man she married, the husband is under 
 obligation to supply "her with necessaries, though she has been- 
 convicted of polygamy by reason of the second marriage. Said 
 the judge : " If the defendant caused his wife to be misled into 
 a belief of his death, and of her right to marry [the second 
 time], he is estopped from taking advantage of her conduct."^ 
 Tills reasoning of the court may be just ; but another reason, 
 about which no real doubt ought to be raised, is, that the con- 
 duct of the wife in entering into this second marriage was not 
 criminal ;' her cohabitation under it, down to the time of her 
 discovering the mistake, was not adultery ; ^ therefore this cir- 
 cumstance should not prejudice her claim for necessaries. 
 
 1 Cartwright v. Bate, 1 Allen, 514, 2 As to whether there ought to be a 
 516, Chapman, J. conviction for polygamy in such a case, 
 
 490 
 
CHAP.' XXXV.] BY MUTUAL CONSENT. § 578 
 
 § 577. Husband condoning Wife's Fault. — Where the separa- 
 tion has been produced by the fault of the wife, if the husband 
 forgives her and receives her back to cohabitation, he cannot 
 afterward set up this fault in bar to an action against him for 
 necessaries furnished subsequently to the time when the con- 
 donation passed ; but still the bar remains good as to neces- 
 saries furnished during the separation.^ 
 
 CHAPTER XXXV. 
 
 SEPARATION BY MUTUAL CONSENT. 
 
 § 578. — G-eneral Doctrine — Husband making an Allowance. — 
 When a husband and his wife agree to live separate, the agree- 
 ment, in reason, should not be extended by interpretation 
 beyond its terms ; and, as the husband was under obligation to 
 support his wife during the cohabitation, so equally is he, during 
 the separation. This plain proposition embraces substantially 
 all which can be said with certainty, as to the law applicable 
 under our present head. The books, indeed, lay down the doc- 
 trine in very broad general terms, that the husband is bound to ^ 
 support his wife where the two are separated by mutual con- 
 sent, the same as where they are living in cohabitation, and 
 even the same as where they are separated through his fault.^ 
 There are cases wliich even appear to lay it down, that, during 
 such a separation, though the husband may make an allowance 
 for his wife, yet he is holden for necessaries furnished her, if 
 the allowance is inadequate, the same as he would be were he 
 in fault in the separation.^ 
 
 see Bishop Stat. Crimes, § 356, 1021, Barney, 8 Johns. 72 ; Rumney v. Keyes, 
 
 1022 and note. 7 N. H. 571 ; Evans v. Fisher, 5 Gilm. 
 
 1 ■Williams v. Prince, 3 Strob. 490 ; 569 ; Johnston o. Sumner, 3 H. & N. 
 Henderson v. Stringer, 2 Dana, 291; 261; Dixon v. Hurrell, 8 Car. & P. 
 Harris v. Morris, 4 Esp. 41. 717. 
 
 2 See, on this general subject. Frost ^ Pearson v. Darrington, 32 Ala. 
 V. Willis, 13 Vt. 202; Lockwood v. 227; Fredd o. Eves, 4 Barring. Del. 
 Thomas, 12 Johns. 248; Baker v. 385 ; Cany u. Patton, 2 Ashm. 140. 
 
 491 
 
§ 580 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 § 579. Husband making an Allowance, continued. — In a New 
 Hampshire case, where the wife was living with her father 
 under an agreement by the husband to pay for her support, and 
 the separation was by the mutual consent of husband and wife, 
 and she voluntarily left her father's house, it was held that the 
 husband was not liable to a third person for necessaries fur- 
 nished her. Said Eichardson, 0. J. : " In the case now before 
 us, the separation took place by mutual consent, and the hus- 
 band is liable for her support, unless he has made suitable pro- 
 vision for her maintenance, of which she can avail herself. And 
 to show this, the burden of proof is upon the husband. But he 
 having placed tlie wife with her father, who is of sufficient 
 ' ability, under a contract 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, so. that the defendant may have a 
 remedy on the bond against her father, if the condition has 
 been broken." ^ We are here, however, running very close 
 upon doctrines relating to separations under articles, — a mat- 
 ter to be discussed in another chapter. 
 
 § 580. Continued. — There is reason for the doctrine, that, if 
 a husband and wife separate by mutual consent, and she under- 
 takes to live on her own estate or earnings, and not to come 
 upon the husband for any of her expenses ; or, if she engages 
 to accept a small sum, which is paid her, though the sum be 
 wholly inadequate ; still, so long as the separation continues 
 on this footing, she cannot pledge his credit for any thing, 
 however much she may stand in need of the credit. Indeed 
 this point was, in substance, decided in a late English case ; and 
 Bramwell, B., observed: "If 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 do not perform 
 that condition, she is not living apart with his consent." ^ 
 Plainly an agreement of this sort would be a revocable act ; but, 
 while the act remained unrevoked, all principles of law would 
 concur in holding, as the English court held, that the wife did 
 
 1 Pidgin V. Cram, 8 N. H. 350, 352. 648, 7 H. & N. 877, 880. And see 
 See Carley v. Green, 12 Allen, 104. Johnston v. Sumner, 3 H. & N. 261. 
 
 2 Biffin u. Bignell, 8 Jur. n. s. 647, 
 
 492 
 
CHAP. XXXVI. J COMMON DOCTRINES. § 582 
 
 not carry with her the husband's credit. Her remedy, if she 
 found herself in straitened circumstances, would be to revoke 
 the agreement of separation.^ 
 
 CHAPTER XXXVI. 
 
 DOCTRINES COMMON TO THE SEVERAL FORMS OP SEPARATION 
 
 BY PAROL. 
 
 581-582 a. Introduction. 
 583-612. Wife after Separation as Feme Sole. 
 613-629. Other Particular Topics. 
 
 § 581. Scope of this Discussion. — It is not within the SCOpe 
 of these volumes to discuss, in a general way, the rights of 
 property growing out of the marriage relation. Yet it does 
 belong to them to show the efifect of a divorce upon those 
 property rights. In like manner, when we are here consider- 
 ing the question of separations between husband and wife 
 without divorce, we are not to examine the property rights 
 which, as a general question, flow from marriage ; but, assum- 
 ing them to be known to the reader, we are to inquire what 
 effect upon them", and upon the general relation of husband and 
 wife, is produced by the act of separation. In chapters pre- 
 ceding this, we have looked at special principles which govern 
 particular sorts of separation ; in this chapter, we are to take 
 a view of some which are common to all. The general rights 
 which the law of marriage confers upon the parties, and its 
 effect on their property, are things discussed by the author in 
 his work on the Law of Married Women. 
 
 § 582. General Property Rights. — In regard to rights of prop- 
 erty, the relation of husband and wife is not much affected .by 
 separation. There are, however, some circumstances in which 
 the courts take the fact of a separation, and its causes, into 
 the account, when adjusting property rights between the parties. 
 
 1 See further, on this subject, Vol. II. § 401, note. 
 
 493 
 
§ 584 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 Upon this general subject, the reader is referred to some cases 
 cited iu a iiote,^ but more particularly to the fuller discussion in 
 the before-mentioned work on the Law of Married Women. 
 
 § 582 a. How the Chapter divided. — We shall consider, 
 I. Separation as conferring on the Wife the Powers of a I'em.e 
 Sole ; II. Other Particular Topics. 
 
 I. 8q)aration as conferring on the Wife the Powers of a 
 
 Feme Sole. 
 
 § 583. Husband presumed to be Dead. — Says Professor 
 Greenleaf : " Where the issue is upon the life or death of a 
 person, once shown to have been living, the burden of proof 
 lies upon the party who asserts the death. But after the lapse 
 of seven years, without intelligence concerrving the person, the 
 presumption of life ceases, and the burden of proof is devolved 
 on the other party." ^ The books contain various cases in 
 which, within this rule, the acts of the wife, deserted by her 
 husband, have been sustained as the acts of a feme sole ; it 
 being presumed that the husband was dead.^ 
 
 § 684. Custom of London — South Carolina. — Likewise, in 
 South Carolina, the law, derived from the custom of London, 
 permits married women to act, within certain limits, inde- 
 pendently of their husbands, as /erne soZe traders ; and, in these 
 cases, it is immaterial wliether or not the husband and wife are 
 living together.* This custom is in Bright on Husband and 
 
 1 High V. Worley, 33 Ala. 196; 199 ; peal, 10 Barr, 220 ; Eees v. Waters, 9 
 
 Chouteau v. Douchouquette, 1 Misso. Watts, 90; Van Note v. Downey, 4 
 
 669 ; Ames v. Chew, 5 Met. 320 ; Butcher, 219 ; Gaston v. Prankum, 11 
 
 Wooters v. Feeny, 12 La. An. 449 ; Bng. L. & Eq. 226, 16 Jur. 507 ; Hall 
 
 Juffrion v. Bordelon, 14 La. An. 618; v. Faust, 9 Eieh. Eq. 294; Whitten w. 
 
 McCormick v. McCormick, 7 Leigh, Whitten, 3 Cush. 191; Johnson v. 
 
 66; The Judge v. Kerr, 17 Ala. 328; Johnson, 4 Barring. Del. 171; Moores 
 
 Schindel v. Sehiudel, 12 Md. 294; u. Carter, 1 Hemp. 64 ; Kee w. Yasser, 
 
 Pressley v. McDonald, 1 Rich. 27 ; 2 Ire. Ch. 553 ; McKinnon v. McDonald, 
 
 Vaughan v. Buck, 3 Eng. L. & Eq. 4 Jones Eq. 1 ; West v. West, 10 S. & 
 
 135, 1 Sim. N. s. 284; Parsons v. Par- E. 445. 
 
 sons, 9 N. H. 309 ; Eoland v. Logan, 3 1 Greenl. Ev. § 41 ; ante, § 452. 
 18 Ala. 307 ; Lawrence v. Spear, 17 3 Boyce v. Owens, 1 Hill, S. C. 8 ; . 
 
 Cal. 421; Cain v. Bunkley, 35 Missis. Cusack ;;. White, 2 Mill, 279; King w. 
 
 119 ; Chouteau v. Merry, 3 Misso. 254 ; Paddock, 18 Johns. 141. And see 
 
 Norcross w. Rodgers, 30 Vt. 588; Aber- Tucker v. Scott, Pennington, 955; 
 
 nathy v. Abernathy, 8 Ela. 243 ; Krupp Chouteau v. Merry, 3 Misso. 254. 
 V. SchoU, 10 Barr, 193 ; Eorer v. < McDaniel v. Cornwall, 1 Hill, S. 
 
 O'Brien, 10 Barr, 212; Tyson's Ap- C. 428; Newbiggin v. Pillans, 2 Bay, 
 494 
 
CHAP. XXXVI.J COMMON DOCTRINES. § 586 
 
 Wife stated in a translation from the Liher albus, in the town 
 clerk's office, as follows: "Where a feme covert of the husband 
 useth any craft in the said city on her sole account, whereof the 
 husband meddleth nothing, such a woman shall be charged as 
 afeme sole concerning every thing that toucheth the craft ; and, 
 if the husband and wife be impleaded, in such case the wife 
 shall plead as a/eme sole ; and, if she be condemned, she shall 
 be committed to prison till she have made satisfaction, and the 
 husband and his goods shall not in such case be charged nor 
 impeached." ^ But though the husband is thus free from 
 responsibility in these cases, and the wife is really the party 
 proceeded against, he must still be joined, as the books say, 
 " for conformity." ^ The wife, to be a feme sole trader, must 
 trade or be engaged in commerce ; ^ therefore a wife separated 
 from her husband, and supporting herself by her manual labor, 
 is not a feme sole trader.* But the business of keeping a board- 
 ing house is one in which a feme covert may become a feme sole 
 trader.^ If the husband has any concern in the business, the 
 wife is no longer to be deemed a feme sole in respect to it.® 
 Such a trader, it seems, cannot execute a valid bond.^ 
 
 § 585. Pennsylvania — North Carolina. — There is something 
 analogous to the South Carolina doctrine established by statute 
 in Pennsylvania ; still, as observed in one of the cases, " there 
 is no feme sole tra.ding by a married woman with us, but such 
 as is licensed and regulated by the statute of .1718." ^ This 
 South Carolina doctrine, moreover, does not prevail in North 
 Carolina ; ^ and it is believed not to be known elsewhere in the 
 United States. 
 
 § 586. General Doctrine — Wife separated still under Coverture. 
 — Shutting out from our view, therefore, the doctrine which is 
 
 162 ; Burtell v. Brailsford, 2 Bay, 333 ; 5 Dial „. Neuflfer, 3 Rich. 78. 
 
 Blythwood v. Everingham, 3 Rich. 285 ; « Lavie v. Phillips, 3 Bur. 1776 ; 
 
 Hobart v. Lemon, 3 Rich. 131 ; Brown Langham v. Bewett, Cro. Car. 68. 
 
 V. Killingsworth, 4 McCord, 429. ' Read v. Jewson, stated 4 T. R. 
 
 1 2 Bright Hus. & Wife, 77. 362. 
 
 2 2 Bright Hus. & "Wife, 78 ; Caudell * Jacobs v. Featherstone, 6 Watts 
 W.Shaw, 4 T. R. 361; Eldon, C. J. in & S. 346. And see Burke v. Winkle, 
 Beard v. Webb, 2 Bos. & P. 93, 98; 2 S. & R. 189; Valentine v. Ford, 2 
 Starr v. Taylor, 4 McCord, 413. Browne, 193. 
 
 8 McDaniel v. Cornwall, 1 Hill, S. C. ' McICinnon v. McDonald, 4 Jones 
 428. Eq. 1. 
 
 * Eobards v. Hutson, 3 McCord, 475. 
 
 495 
 
§ 587 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 founded on the custom of London, we have the general propo- 
 sition already mentioned, that a wife is substantially as much 
 under coverture, in law, during a separation from her husband, 
 as when she is cohabiting with him.^ For example, her deed, 
 conveying her real estate, is void ; ^ she cannot be holden on 
 her promissory note,^ or on her bond.* She cannot ordinarily, 
 at law, even pledge her own credit for necessaries ; though, if 
 she has a separate estate, this estate may sometimes be reached 
 by a bill in equity ; or, in some States, through express legis- 
 lation, or some peculiarity in the general jurisprudence of the 
 State, by a suit at law.^ This is the general doctrine : let us 
 see what exceptions to it we can find. 
 
 § 587. Civil Death. — There were anciently, in England, two 
 forms of what is in the law called civil death, known as banish- 
 ment, and abjuration of the realm ; the former, it appears, 
 being inflicted by direct sentence of court as a penalty for 
 crime ; and the latter being voluntarily accepted, with its 
 accompanying oath, in order to escape the heavier infliction of 
 death.^ The punishment by banishment was afterward suc- 
 ceeded by the similar punishment of transportation ; '' but 
 abjuration of the realm was entirely abolished.^ In these 
 ancient times, therefore, it was held, that, if the husband were 
 banished, or had abjured the realm, the wife might sue or be 
 sued as a feme sole. " And here it is to be observed," says 
 Lord Coke, " that an abjuration, that is, a deportation for ever 
 into a foreign land, like to profession [the matter of which 
 Littleton was speaking], is a civil death; and that is the 
 reason, that the wife may bring an action, or may be impleaded, 
 during the natural life of her husband. And so it is, if by act 
 of Parliament the husband be attainted of treason or felony, 
 and, saving his life, is banished for ever, this is a civil death, 
 
 1 Ante, § 581, 582 ; Robinson v. Eey- Childress v. Mann, 33 Ala. 206. 1 
 nolds, 1 Aikens, 174. Bishop Mar. Women, § 894 and the 
 
 2 Thorndell v. Morrison, 1 Casey, chapter commencing § 840. 
 
 326. 6 4 Bl. Com. 332, 333, 377; Jacob 
 
 3 Chouteau v. Merry, 3 Misso. 254; Law Diet. tit. Abjuration, Banishment. 
 Imhoffw. Brown, 6 Casey, 504; Painter 'Jacob Law Diet. tit. Tran?porta- 
 V. Weatherford, 1 Greene, Iowa, 97 ; tlon. 
 
 Moses V. Fogartie, 2 Hill, S. C. 335. 8 4 b1. Com. 333. See some excel- 
 
 * Freer v. Walker, 1 Bailey, 184. lent reasons for the abolishment in the 
 
 5 Shaw V. Thompson, 16 Pick. 198 ; preamble of Stat. 22 Hen. 8, c. 14. 
 
 Wooster <^. Northrup, 5 Wis. 245; 
 
 496 
 
CHAP. XXXVI.J COMMON DOCTRINES. § 589 
 
 and the wife may sue as a feme sole. And hereby you may 
 understand your books, which treat of this matter. But if the 
 husband, by act of Parliament, have judgment to be exiled 
 but for a time, which some call relegation, that is no civil 
 death. And in 8 E. 2, an abjuration is called a divorce be- 
 tween the husband and wife. Sed opus est interprete ; for by 
 law no subject can be exiled or banished his country, whereby 
 he ghall perdere patriam, but by authority of Parliament, or in 
 case of abjuration, and that must be upon an ordinary pro- 
 ceeding in law." ^ 
 
 §588. Continuea. — In short, according to our author, this 
 civil death of the husband, where also he was made to absent 
 himself from the kingdom, produced apparently the effect of 
 an actual death as to the wife's capacity in law, — a result 
 which probably was not quite reached by a civil death where 
 the personal presence remained in the country.^ Thus, he 
 adds : " 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 lifetime, .... for that the 
 abjuration was a civil death." ^ Indeed the civil death which 
 came from being a professed religionist, and the like, — any 
 civil death, — was sufficient to cause an estate for the life of 
 the husband to terminate, so as to let in the party in expecta- 
 tion ; unless the estate were expressly limited for the " natural " 
 life, instead of the life in general terms.* And on ihis princi- 
 ple, as observed by Mr. Eoscoe, " 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 required she should have such power, and that a will 
 made by her was good." ^ 
 
 § 589. How of Civil Death in United States — Wife sue and 
 be sued. — This rule of the ancient common law is plain, in- 
 
 1 Co. Lit. 133 a. And see "Wilmot's * 2B1. Com. 121 ; Canterbury's Case, 
 Case, Sir F. Moore, 851. 2 Co. 46 a, 48 b. 
 
 2 This latter clause is only my gen- ^ Uote to Bingsted v. Lanesbo- 
 eralimpression of the matter ; the point, rough, 3 Doug. 197,206; referring to 
 being of no practical importance with Portland v. Prodgers, 2 Vern. 104. See 
 us, does not demand a more exact ex- also Newsome v. Bowyer, 3 P. Wms. 
 amination. 37. And see Wright v. Wright, 2 Des. 
 
 8 Co. Lit, 138 a. 242 ; Troughton v. Hill, 2 Hay w. 406. 
 
 VOL. I. 32 497 
 
§ 590 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 telligible, and exact. But in the United States we have no 
 such thing as civil death, or banishment, or abjuration of a 
 State or the country ; we have here, therefore, nothing whereon 
 this common-law rule, as thus explained, can operate. In 
 England also, there is little, if any thing, now left of the old, 
 in this respect. Yet both in England and in the United 
 States, the courts permit, in exceptional cases, wives living 
 apart from their husbands to sue and be sued as femes sole. 
 There is not, however, either in England or in any of our 
 States, any such clear doctrine laid down upon this subject as 
 to leave future cases entirely beyond doubt; and especially 
 are there no such reasons given for the decisions as should 
 satisfy philosophical inquiry. In our States the decisions are 
 conflicting ; or, if not absolutely so, the right of the feme covert 
 to act as a feme sole is extended much further in some of the 
 States than in others. Most of the decisions appear to proceed 
 upon analogies which the judges assume to draw between the 
 case in judgment and the old case of abjuration or banishment ; 
 but the analogies are not all perfect, and perhaps the attempting 
 of them is in some instances of doubtful utility. 
 
 § 690. Sue and be sued as Feme Sole, continued — How in 
 England. — In England, notwithstanding the old doctrine, 
 according to which, as Lord Coke has stated,^ if the banish- 
 ment is only for a term of years the right of the wife to act as 
 a fem.e sole does not arise, — it has been ruled that, where the 
 husband is convicted of felony, and sentenced to transportation 
 for a term of seven years, the wife may, down to the time of 
 his actual return to the kingdom on the expitation of the sen- 
 tence, maintain a suit in her own name.^ Also, if the husband 
 is an alien enemy, — so it was adjudged in a suit against the 
 Duchess of Mazarine, who, the report says, " had lived here in 
 England for twenty years as a feme sole, and had contracted 
 continually as such," — the capacity to be sued, or to sue, 
 exists. Said Lord Holt, 0. J. : " When the husband is an 
 alien enemy, and under an absolute disability to come and live 
 
 1 Ante, § 587. Lord Eldon, C. J. in Marsh v. Hutch- 
 
 2 Carrol v. Blencow, 4 Esp. 27. And inson, 2 Bos. & P. 226, 282, and appears 
 see Eingsted v. Lanesborough, 3 Doug, to have been considered by him as a 
 197 and notes. Mr. Roscoe observes, question of much doubt." But see Ex 
 ib. p. 206, " This point is adverted to by parte Franks, 7 Bing. 762. 
 
 498 
 
CHAP. SXXVI.] COMMON DOCTRINEa. § 591 
 
 here, the law perhaps will make the wife of such a husband 
 chargeable as a feme sole for her debts and contracts. For 
 this case does not differ from the case of my lady Belknap and 
 my lady Weyland, who were allowed able to sue and be sued 
 upon the abjuration or banishment of their husbands, as if 
 they had been sole." ^ The reader will observe, that, in these 
 two cases of the transportation of the husband, and of his 
 being an alien enemy abroad, there is in him an absolute 
 incapacity, either temporary or permanent, to come to England, 
 and to discharge there any of the duties of husband. Herein 
 the analogy to banishment or abjuration seems nearly, if not 
 absolutely, complete. 
 
 § 591. Continued — Case not Analogous to Civil Death. — 
 There have been, in England, several judicial attempts to break 
 away from this anchorage ground, and permit the wife to sue 
 and be sued tinder various other circumstances. Thus in the 
 time of Lord Mansfield, several cases occurred wherein this 
 able judge, by his influence, carried the court a good way out 
 to sea. In one of these cases 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 con- 
 tracted by her in England during his lifetime.^ In another of 
 these cases the decision was, that a feme covert living separate 
 from her husband, and having a competent separate main- 
 tenance duly paid her, may be sued alone on a contract made 
 by her for necessaries. " As the usages of society alter," said 
 Lord Mansfield, " the law must adapt itself to the various 
 situations of mankind." And the principle upon which he 
 and the other judges put this decision was, that the husband 
 was not liable, therefore that the wife should be.^ Afterward 
 came the famous case of Corbett v. Poelnitz, in which the doc- 
 trine 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.* Still later, these and all the other like cases 
 
 1 Derry v. Mazarine, 1 Ld. Eaym. ^ Barwell v. Brooks, 3 Doug. 371. 
 147. * Corbett v. Poelnitz, 1 T. R. 5. 
 
 2 Eingsted v. Lanesborough, 3 Doug. 
 197. 
 
 499 
 
§ 692 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 were orerturned, under Lord Kenyon ; the court holding, in 
 Marshall v. Rutton, that a feme covert cannot contract and be 
 sued as a feme sole, even -though she is living separate from 
 her husband, having a separate maintenance secured to her by 
 deed.i This latter decision accords fully with the earlier 
 English law.2 And the principle of the decision 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, amounting 
 in its facts to desertion, had continued four years, and the 
 husband had not been heard of, and the wife had traded and 
 conducted her business as a feme sole, she was not permitted 
 to maintain in her own name an action of trespass for entering 
 her premises and carrying off goods which she had accumu- 
 lated.3 
 
 § 592. Continued. — If the reader will turn to Bright on 
 Husband and Wife, he will there see a review of various caises 
 in which differing English judges have favored or combated the 
 idea, that, if the husband absents himself permanently from 
 the kingdom, or if he is an alien and has never resided in 
 the kingdom, though he is not an alien enemy, the wife may 
 then appear in court as a feme sole. The result seems to be, 
 that no such doctrine is certainly established in , England ; 
 though perhaps the question is not so settled as to preclude 
 future discussion, should some extreme case arise.* Thus we 
 
 1 Marshall v. Eutton, 8 T. R. 545. Fisher, 3 Esp. 18; Marsh v. Hutchinson, 
 And see 2 Bright Hus. & Wife, 69 ; 1 2 Bos. & P. 226. 
 
 Kent Com. 160. Chancellor Kent, in * 2 Bright Hus. & Wife, 71-74 ; re- 
 this place, mentions some cases as ferring to Marsh v. Hutchinson, 2 Bos. 
 having shaken the decision in Corhett & P. 226; Chambers v. Donaldson, 9 
 V. Poelnitz, before this case of Marshall East, 471 ; Bogget v. Frier, 11 East, 
 V. Rutton arose ; namely, Compton v. 301 ; Johnston v. Kirkwood, 4 Dru. & 
 CaUwin, 1 H. Bl. 834, 350 ; Ellah v. W. 379 ; WilUamson v. Dawes, 2 Moore 
 Leigh, 5 T. R. 679 ; Clayton v. Adams, & S. 352; Kay v. Pienhe, 3 Camp. 232, 
 6 T. R. 604. For later adjudications, see 2 Bos. & P. 233 ; Stretton v. Bus- 
 see Meyer v. Haworth, 8 A. & E. 467 ; nach, 4 Moore & S. 678, 1 Bing. N. C. 
 Smith V. The Sheriff of Middlesex, 15 139 ; Barden v. Keverberg, 2 M. & W. 
 East, 607 ; Barden v. Keverberg, 2 M. 61. In De Gaillon v. L'Aigle, 1 Bos. & 
 & W. 61. P. 357, — a case in which it did not 
 
 2 See, for a full view of this matter, appear whether or not the husband had 
 2 Kent Com. 154 et seq. ever resided In England, — it was held, 
 
 3 Bogget V. Frier, 11 East, 301. And that, where he was permanently abroad, 
 see to the same effect, Farrer v. Gra- and the wife had traded and obtained 
 nard, 1 New Rep. 80 ; McNamara v. credit In England as a feme sole, repre- 
 
 500 
 
CHAP. XXXVI.J COMMON DOCTRINES. § 593 
 
 have seen what are the principal English doctrines upon the 
 subject under discussion; and the conclusion appears to- be, 
 that, unless the husband is absent from the kingdom under 
 circumstances which preclude his coming or returning to the 
 kingdom, — preclude, as matter of law, not merely as matter 
 of volition, or will, in him, — the wife cannot be treated in a 
 court of common law as a feme sole. She can neither sue 
 there, nor be sued. If she has a separate estate, she may per- 
 haps bind such estate by her contract in a way to enable the 
 creditor to reach it in a court of equity ,i — a perplexed matter, 
 however, which does not come within the topics to be discussed 
 in the present volumes.^ 
 
 § 593. Contiiiued — Wife's Remedy for Torts. — Thus, there- 
 fore, a creditor is not under all circumstances without his 
 remedy against any fund which a wife living separate from her 
 husband may possess. On the other hand, if she has suffered 
 a wrong from any third person, she may bring a suit in the 
 name of her husband, or in the name of herself and husband 
 jointly, as the case may require ; and, though it is in general 
 and perhaps always in the power of the husband to release the 
 action and thus defeat her remedy,^ still there is a class of 
 authorities which appear to hold, that, while the court will, in 
 proper circumstances, on his application, direct her to furnish 
 him indemnity against the costs, it will not permit him to dis- 
 continue the suit, or otherwise to bar the action in fraud of the 
 wife.* It is probably the true view in these cases, that, if there 
 is a mere separation in pais, and no judicial sentence, the hus- 
 band can always at law defeat the action by releasing it ; and 
 
 senting herself to be such, she could be husband has abjured the realm." 2 
 
 made answerable to the creditor in a Kent Com. 161. 
 
 suit at common law ; but this author, ^ Ante, § 586 ; McNamara v. Fisher, 
 
 Vol. n. p. 70, sets down this ease as 3 Esp. 18. 
 
 among those which were overruled in 2 ^g to which see 1 Bishop Mar. 
 
 Marshall v. Button, 8 T. E. 545. See Women, § 840 et seq. 
 
 also Hatchett v. Baddeley, 2 W. Bl. 3 i Bishop Mar. Women, § 912. 
 
 1079 ; Gilchrist v. Brown, 4 T. R. 766 ; « Chambers v. Donaldson, 9 East, 
 
 Lean v. Schutz, 2 W. BI. 1195. Chan- 471 ; Innell v. Newman, 4 B. & Aid. 
 
 cellor Kent says, of the modem Eng- 419 ; Harrison v. Almond, 4 Dowl. P. 
 
 lish law : " The old rule is deemed to C. 321 ; Suter v. Christie, 2 Add. Ec. 
 
 be completely re-established, that an 150 ; Hock v. Slade, 7 Dowl. P. C. 22. 
 
 action at law cannot be maintained And see Lynch v. Knight, 5 Law Times 
 
 against a married woman, unless her n. s. 291. 
 
 501 
 
§ 595 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 hitherto we have no distinct and admitted equity jurisdiction 
 to interfere in her behalf. If, by stipulation between the hus- 
 band, 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, however, that the doctrine of this section 
 relates to the ordinary cases of separation, and not to those in 
 which the wife sues as a feme sole by reason of the husband's 
 abjuration of the realm and the like. 
 
 § 594. American Authorities as to the Abandoned Wife^s 
 Capacity to sue and he sued : — 
 
 General View. — This minute consideration of the English 
 law — which does not, however, include a reference to quite all 
 of the unimportant English cases — seemed to be necessary as 
 a starting-point whence to proceed to an examination of the 
 American authorities. And now that we have arrived at this 
 starting-point, we can find no way of travelling, with any suc- 
 cess, through the American cases, except to take the States in 
 their order. And when we are upon a particular State, we can 
 say only what has been decided in the State ; we cannot proph- 
 esy concerning future decisions, or tell what authority, of the 
 conflicting ones, from beyond the limits of the State, the judges 
 will deem to be of the greater weight. And the reader is cau- 
 tioned here, as in respect to all questions of law upon which 
 there may probably be differences in the different States, found 
 in a general treatise, that it will not be safe for him to take the 
 words of the text-writer as ultimate authority, without looking 
 into the decisions, and especially into the statutes, of his own 
 State for himself. 
 
 § 595. Alabama. — It has been held in this State, that a mar- 
 ried woman whose husband has, to use the language of the 
 report, abjured the State, — an expression not accurate, yet 
 common in this country ; for, as we have seen ,2 there is with 
 us no such thing as an abjuration of the State, — and who has 
 since traded as a feme sole, and taken notes in her own name, 
 may in her own name sue for and recover the amount.^ To 
 constitute an abjuration within the meaning of this rule, the 
 husband must both depart beyond the limits of the State, and 
 
 1 Innell v. Newman, supra. 3 Arthur v. Broadnax, 3 Ala. 557. 
 
 2 Ante, § 589. 
 
 502 
 
CHAP. XZXVI.] COMMON DOCTRINES, § 597 
 
 also entertain the intent not to return, and not to cohabit more 
 with his wife.i The court in one case sustained the following 
 doctrine ; namely, that, if a husband removes with no intention 
 of returning, from this State into another State, declares his 
 determination to abandon his wife, and absents himself for more 
 than five years, the law confers on her the capacity of contract- 
 ing and suing, as though she were a feme sole, — observing : 
 " There is no doubt but that, by the rigid rules of the common 
 law, the wife, under the circumstances here presented, would 
 labor under all the disabilities of coverture^ and the authorities 
 cited by the counsel for the plaintiff in error show that the 
 settled law of the English courts sustains the view for which he 
 contends. The English cases, however, are not at all consistent 
 upon the doctrine.^ . . . But a more liberal rule, and one 
 which, we think, is more consistent with reason and justice, 
 seems to obtain in this country." ^ At a later period, a statute 
 of this State provided, that, " when a husband and father has 
 deserted his family, the wife and mother may prosecute or de- 
 fend, in his name, any action which he might have prosecuted 
 or defended,, and has the same powers and rights he might have 
 had." And the court has held, that, in order for a wife to pros- 
 ecute or defend under this statute, she must appear in the 
 facts of the case to be also a mother, and the husband to be also 
 a father.* 
 
 § 596. Connecticut. — A statute in this State provides, that, 
 " wttenever any married woman shall have been' abandoned 
 by her husband, it shall be lawful for her during the continu- 
 ance of such abandonment to transact business in her own 
 name, and to sue and be sued in all courts of justice." And 
 the court has held, that, though the wife is in fault, and the 
 husband for this cause lawfully abandons her, still the case is 
 within the statute ; neither is it important that the abandon- 
 ment should have continued for any particular length of time, 
 provided it is absolute, and intended by the husband to be 
 perpetual.^ 
 
 § 597. niinois. — The tribunals of this State have gone to a 
 
 » Krebs v. O'Grady, 23 Ala. 727; 3 Mead v. Hughes, 15 Ala. 141, 147, 
 
 mes V. Stewart, 9 Ala. 855. opinion by Chilton, J. 
 2 Eeferring to Clanc. Hus. & Wife, * Ex parte Cole, 28 Ala. 50. 
 54 et seq.. ^ Moore v. Stevenson, 27 Conn. 14. 
 
 503 
 
§ 597 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 very great length in sustaining the separate capacity of the 
 wife. " We hold," said Skinner, J., " the law to be, that, 
 where 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 tem- 
 porary and capricious, but^ permanent and without expectation 
 of again living together ; 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 acquisitions, and contract, sue and be sued in rela- 
 tion to them, as a feme sole, during the continuance of such 
 condition." ^ No abandonment of the State, by way of any 
 assumed analogy to the old English abjuration of the realm, is 
 here required ; but, in a case, for example, of simple desertion, 
 if the deserted wife obtains a divorce from her husband, and 
 then marries again, the second husband is liable, at law, to pay 
 any debts which she may have contracted after the desertion 
 took place and before the divorce. In short, a deserted wife 
 in Illinois may acquire property, and control it, and her per- 
 son, and sue and be sued as a, feme sole? The court, in coming 
 to this conclusion, observed, that the doctrine concerning the 
 right of the wife separated from her husband to act as a feme 
 sole has not, in our jurisprudence, been uniform, but it has 
 varied from time to time ; therefore, in the language of Skinner, 
 J., " we feel at liberty to adopt such a rule as will best meet 
 the exigencies of society, and accord with the current of mod- 
 ern authority." And he added : " In case of abandonment of 
 the wife by the husband, the reason of the rule of the common 
 law concerning the marital relations ceases to exist ; and, with 
 the reason, the rule should cease when demanded by the neces- 
 sities of justice." A wife may have good cause for divorce 
 from her husband, yet she may have conscientious scruples 
 about applying for this remedy ; but she should not, therefore, 
 be deprived of the means of living independently of him. 
 " The husband," added this learned judge, " is discharged 
 from his liability to provide for the wife, if she witliout cause 
 abandons him ; and why the wife, being abandoned by the 
 
 1 Love V. Moynehan, 16 111. 277, 2 Prescott v. Pisher, 22 lU. 390. 
 282. 
 
 504 
 
CHAP. XXXVI.] COMMON DOCTRINES. § 600 
 
 husband, should be kept continually subject to his plunder, or 
 that of his creditors, naust be hard to answer." ^ 
 
 § 598. Iowa. — ■ There is, in this State, a statute upon the 
 subject ; but it is only cumulative, and it does not abrogate the 
 rule of the common law. At common law it has been held, that, 
 where the wife has been a long time absolutely deserted by her 
 husband, and left wholly to her own means of support, she is 
 free to act as a feme sole. According to the facts of the case 
 in which this doctrine was laid down, the desertion had contin- 
 ued fifteen years, and the husband was residing in another 
 State.2 
 
 § 599. Louisiana. — The relation of husband and wife, in 
 this State, is regulated so much after the rules of the civil law, 
 that perhaps it is not worth while here to consider the Louisi- 
 ana authorities on the present point. 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 .^ 
 
 § 600. Maine. — In this State, in a recent case in which the 
 authorities were pretty fully considered, the court came to the 
 conclusion, that, though by the general law of husband and 
 wife a married woman cannot make any binding contract 
 whereby she will subject herself to a suit, yet, if there has been 
 a desertion by the husband in the ordinary sense, and the sepa- 
 ration has been long continued, and it is so complete as to 
 show a relinquishment by him of his marital riglits and rela- 
 tions, — such a case furnishes an exception to the general rule, 
 and she may act and be made liable in law as & feme sole. 
 Evidence that the separation was by the mutual consent of the 
 parties (such evidence, it may be observed, would negative the 
 idea of a desertion in the legal sense), and that provision for 
 the separate maintenance of the wife was made by the husband, 
 tends in some degree to prove a relinquishment of his marital 
 rights, but it does not render the conclusion of such relinquish- 
 ment inevitable. In the particular case before the court, the 
 judges, trying the facts as well as the law, negatived the lia- 
 
 1 Love V. Moynehan, supra, p. 280, An. 264. And see Wooters v. Teeny, 
 282. 12 La. An. 449; Joffrion v. Bordelou, 
 
 2 Smith V. Silence, 4 Iowa,. 321. 14 La. An. 618. 
 
 3 Wilkinson v. Stanbrough, 1 La. 
 
 605 
 
§ 601 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 bility of the wife, 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." -^ 
 
 § 601. Massachusetts. — " The principle," said Shaw, C. J., 
 in one case, " is now to be considered as established in this 
 State, as a necessary exception to the rule of the common law 
 placing a married woman under disability to contract or main- 
 tain a suit, that, where the husband was never within the Com- 
 monwealth, or has gone beyond its jurisdiction, has wholly 
 renounced his marital rights and duties, and deserted his wife, 
 she may make and take contracts, 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 away the disability of cover- 
 ture 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 jurisdiction of its 
 courts. But to accomplish this change in the civil relations of 
 the wife, the desertion by the husband must be absolute and 
 complete ; it must be a voluntary separation from and aban- 
 donment of the wife, embracing both the fact and intent of the 
 husband to renounce de facto, and as far as he can do it, the 
 marital relation, and leave his wife to act as a feme sole. 
 Such is the renunciation, coupled with a continued absence in 
 a foreign state or country, which is held to operate like an 
 abjuration of the realm." But in the case in which these 
 observations occurred, although the husband had removed into 
 another State, leaving his wife behind, making no provision 
 for her, and she supported herself by her own labor, the court, 
 on an agreed statement of facts, forbore to hold her responsi- 
 ble as defendant on her promissory note ; because it did not 
 appear that the husband was able to provide for her, that he 
 was not in correspondence with her, that when he left or 
 afterward he manifested any intention to desert her, or that he 
 was not necessarily detained away by sickness or imprisonment 
 
 1 Ayer o. Warren, 47 Maine, 217, Mass. 31 ; Abbott v. Bayley, 6 Pick. 
 232. 89. 
 
 ' Eeferring to Gregory v. Paul, 15 
 
 506 
 
CHAP. XXXVI.] COMMON DOCTRINES. § 602 
 
 or poverty .1 In another case it was held, that no action can 
 be maintained against a wife, or against her administrator, for 
 necessaries, upon eitlier an implied or express promise ; 
 although at the time of such supply the husband was non 
 compos, residing separately from her in the almshouse, — the 
 same learned judge observing : " The cases in which a wife 
 has been held liable as a feme sole on her own promise, made 
 when living apart from her husband by mutual agreement, 
 and having a separate maintenance, have not been adopted 
 here ; but, were it otherwise, the principle of those cases 
 would not affect the present case, there being no separation by 
 mutual agreement, and no separate maintenance provided for 
 the wife." 2 
 
 § 602. Missouri. — It was in one case held in Missouri, that 
 a feme covert is not liable on a promissory note executed by 
 herself, even though her husband has abandoned the State, 
 and has been for many years — in this instance, ten years — 
 absent in another State. Said the judge : " Coverture oper- 
 ates a legal disability to contract, and all contracts of a feme 
 covert are absolutely void. The facts in this case do not 
 bring it within any of the exceptions. The cases cited from 
 the English books are, where the husbands abjured the realm, 
 or were foreigners residing abroad. The principles settled in 
 those cases do not apply. If by a removal from one State or 
 another, or a separate residence in different States, the indis- 
 soluble 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 
 disabilities, there would be little need of troubling the legisla- 
 ture or the courts on the subject of divorces." ^ But in a later 
 case, where a married woman was living separate from her 
 husband under articles of separation, and he resided in 
 another State, and the two had thus lived apart for twenty- 
 four years, the court held that the woman could sue and be 
 sued in her own name.* 
 
 1 Gregory v. Pierce, 4 Met. 478. ' Chouteau v. Merry, 3 Misso. 254, 
 See also Commonwealth v. Cullins, 1 255, opinion by Wash, J. 
 
 Mass. 116 ; Ames v. Chew, 5 Met. 320. < Eose v. Bates, 12 Misso. 30. 
 
 2 Shaw V. Thompson, 16 Pick. 198, 
 200. 
 
 SOT 
 
§ 605 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 § 603. New Hampshire. — In a case of desertion by a hus- 
 band who went to another State and there resided, leaving 
 his wife in New Hampshire, — where, however, if the point 
 were material, the desertion was not of a malicious kind; 
 " never," it was said, " has a year elapsed without her receiv- 
 ing a letter from him, but she has received not much or any sup- 
 port from him since he went away, and none for the last twelve 
 years," — the court held, that, under the common law of the 
 State, the wife was not answerable in a suit for a debt of her 
 contracting. But by operationr of the statute of Dec. 24, 1840, 
 " she became," said the judge, " under the circumstances of 
 desertion adverted to, capable of acquiring property." There- 
 fore it was decided that, for the items in the bill contracted 
 previously to the passage of the statute, the action at common 
 law would not lie against him ; yet, for the items contracted 
 after the statute was passed, the action would lie.^, 
 
 § 604. North Carolina. — There is an early North Carolina 
 case, in which something like the ancient English abjuration 
 of the realm occurred. In 1777, during the revolutionary 
 war, a man was called upon to take the oath of allegiance to 
 the State, or else to depart; he refused to take the oath, and 
 was compelled to leave the State, under the penalty established 
 by law of incurring the crime of high treason if he returned. 
 His wife, being left behind, married again during his lifetime, 
 and otherwise acted as a feme sole. " After much argument, 
 the court said, .... as the bill states that McNeil [the hus- 
 band] was perpetually banished, it follows that, except as to 
 the objection to the marriage, McNeil 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." ^ 
 
 § 605. Ohio. — In this State it was held by a majority of the 
 court, that, where the brutality of the husband has driven the 
 wife beyond the pale of his protection, and a separation de facto 
 exists ; she living and maintaining herself as a single woman, 
 and having had specific property decreed to her as alimony, 
 
 1 Brackett v. Drew, 20 N. H. 441, 2 Troughton v. Hill, 2 Hayw. 406. 
 442, opinion by Gilchrist, J. 
 
 508 
 
CHAP. XXXVI.] COMMON DOCTRINES. § 607 
 
 though no divorce has taken place ; an action at law will lie in 
 her name in regard to such property, and the husband need 
 not be joined. 1 But this case touches close upon the effect of 
 a divorce from bed and board, — a matter to be considered in 
 a subsequent part of these volumes.^ In a later -case the same 
 court decided, that coverture is no bar to a woman's suing and 
 being sued as a feme sole, in matters pertaining to her mainte- 
 nance, where her husband deserted her in a foreign country, 
 and she thereupon came to Ohio in which State she supports 
 herself, the husband never having been within the State.^ 
 § 606. Pennsylvania. — Tlie decisions in tliis State, on a point 
 ' like this, are less satisfactory as precedents to be followed in 
 other States, in consequence of the peculiar blending of the 
 doctrines of the common law and of courts of equity, which there 
 prevails, and does not generally prevail elsewhere in this coun- 
 try.* In one case it was held, that, if a wife is left by her 
 husband to earn her own living, she may recover for services 
 to one deceased, from whom she had before received wages, 
 at least in a court of equity.^ In another case it was held, 
 that, if a husband deserts his wife, — the desertion, in fact, 
 was immediately after the marriage, and the husband married 
 another woman in Canada, ■ — her subsequent acquisitions be- 
 come her separate property, and she may dispose of them by 
 will or otherwise.^ But here we are coming to the question of 
 separate property in married women, — a topic not for discus- 
 sion in the present volumes.'^ 
 
 ,§ 607. South CaroUna. — We have already considered the 
 doctrine, prevailing in this State, according to which a married 
 woman may act as a feme sole trader.^ Aside from this doc- 
 trine, " there is no case," said Nott, J., " 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 
 
 1 Benadurn v. Pratt, 1 Ohio State, ' See Jacobs v. Featherstone, 6 
 403. ■ Watts & S. 346; West v. West, 10 S. 
 
 2 Vol. II. § 726-741. & R. 445 ; Rees v. Waters, 9 Watts, 90 ; 
 
 3 Wagg V. Gibbons, 5 Ohio State, Rorer v. O'Brien, 10 Barr, 212 ; Tyson's 
 580. Appeal, 10 Barr, 220 ; Imhoff v. Brown, 
 
 4 1 Bishop Mar. Women, § 19-22. 6 Casey, 504. 
 
 5 Spier's Appeal, 2 Casey, 233. 8 Ante, § 584. 
 
 6 Starrett v. Wynn, 17 S. & R. 130. 
 
 509 
 
§ 610 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 able to coatract, and to sue and be sued as a, feme sole." ^ But 
 if a husband leaves the State, -without the intention of return- 
 ing, the wife is competent to contract, and sue and be sued, as 
 a feme sole. " By being thus deprived of his aid and protec- 
 tion," said Waties, J., " she was obliged to provide for herself, 
 and was therefore competent to make contracts, and to sue and 
 be sued on them as a feme sole ; otherwise she would have no 
 means of gaining a support." ^ 
 
 § 608. United States. — There is a decision by the Supreme 
 Court of the United States, in which considerable latitude seems 
 to be allowed to the wife to act as a feme sole when deserted 
 by her husband ; but it does not shed any very exact light on 
 the subject.^ 
 
 § 609. Vermont. — It was held in this State, that no tempo- 
 rary absence of the husband — that is, no absence from which 
 he intends to return — will subject the wife to be sued as a 
 feme sole. The learned chief justice observed, that, if the hus- 
 band were civilly dead, or if he were an alien having never 
 resided in the State, the wife would be liable. But in the pres- 
 ent case, " suppose the husband should return while the action 
 was pending, could the plaintiff proceed with his action and 
 imprison the wife ? In the event of the return of the husband, 
 it will hardly be contended that property acquired by the wife 
 in his absence would be beyond his control." * 
 
 § 610. General Review. — The reader who has carefully pon- 
 dered what is brought to his attention in this review of the 
 English and American decisions upon the authority of a mar- 
 ried woman, living apart from her husband, to act as sole, has 
 not failed to observe the following things : First, at the time 
 when our forefathers brought the English common law to this 
 country, and down to the period of the Revolution, there was 
 in England recognized no right in any married woman, not in 
 cohabitation with her husband, any more than if she were in 
 cohabitation, to sue or be sued, or otherwise to act as a single 
 
 1 BrownD.Kmiiigsworth,4McCord, 27; Hall v. Faust, 9 Rich. Eq. 294; 
 ^9. 431. Boyce v. Owens, 1 Hill, S. C. 8. 
 
 2 Bean v. Morgan, 4 McCord, 148. s Rhea v. Rhenner, 1 Pet. 105. And 
 See also Robards v. Hutsou, 3 McCord, see Moores v. Carter, 1 Hemp. 64. 
 475; Pressley u. McDonald, 1 Rich. i Robinson ^. Reynolds, 1 Aikens, 
 
 174, 178, opinion by Skinner, C. J. 
 510 
 
CHAP. XXXVI.] COMMON DOCTRINES. § 611 
 
 person ; unless the husband was under the disability of what 
 was termed a civil death ; and, as it appears, was lilcewise, and 
 likely to remain ever afterward, personally absent from the 
 kingdom ; and unless, also, this civil death, with its accompa- 
 nying absence, was matter either of judicial or parliamentary 
 record. The English innovations upon this doctrine were made 
 at a time when the English law was of no binding force in this 
 country ; and, moreover, those innovations are chiefly, and 
 perhaps wholly, discarded in England by subsequent decisions. 
 Secondly, though there has been manifested a disposition in 
 the United States to break in upon the old English common-law 
 rule, there is no uniformity in the decisions ; and there is noth- 
 ing, therefore, pertaining to this subject, which can be set down 
 as Amei'ican law, in distinction from the law of some particular 
 State. And there are few States within our Union, if any, in 
 which judicial decision has with any great clearness or cer- 
 tainty defined the limits of the innovation attempted to be 
 made. 
 
 § 611. The Result. — The result of these views is, that, in 
 most of our States, and upon most of the points involved, this 
 question is open to be adjudicated in such way as the judges 
 may deem to be indicated by the general principles of our juris- 
 prudence. When we search for these principles, as applicable 
 to the particular matter, we find the following : First, tliat, to 
 an extent familiarly known to the profession, the English law, 
 as it stood at the time when this country was settled, and not 
 as it has been subseqiiently modified in England, is our common 
 law. Secondly, that, according to a doctrine of tliis law which 
 has been adjudicated over and over again in the United States, 
 coverture operates to take from the wife all capacity to bind 
 herself by her own act, or to appear in any court of justice as 
 a feme sole. Thirdly, that, if in any case tliere is an exception 
 made to this principle, it is one in which the woman appears in 
 a court of equity and not in a court of common law. Fourthly, 
 that any abrogation of this principle, by judicial decision, is an 
 act in the nature of a partial divorce. Fifthly, that no divorce, 
 partial or full, not interfering with marital rights or relations, 
 can, without a violation of a most sacred rule of our law, be 
 made by judicial decision, except after notice to the husband, 
 
 511 
 
§ 612 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 and liberty given him to come in and object. Consequently, 
 sixthly, that to allow the wife to appear as a feme sole in a 
 -court, without notice to the husband, without opportunity given 
 him to be heard, — to pass this sort of semi-divorce, applicable 
 only to the particular case, and not operating as a general sen- 
 tence, — would violate established doctrine; and be, in the 
 judge, an act of law-making, and not of law-expounding. If 
 there were a judicial or a parliamentary record of the fact upon 
 which the idea of a civil death was based, as required in that 
 common law which our forefathers brought to the United States, 
 then, as such record imports absolute verity, the correctness of 
 the matter therein stated would not be open to inquiry, there- 
 fore the case would be different. In such a case, though the 
 record were not in form a divorce, the coiirts might act upon 
 it, the same as they act upon a recorded sentence of divorce. 
 
 § 612. Continued. — There is indeed an idea prevalent, not 
 only among the people at large, but among judicial persons 
 also, that, in the language already quoted from Lord Mansfield, 
 " as the usages of society alter, the law must adapt itself to the 
 various situations of mankind." ^ And this idea is, in a certain 
 sense, correct ; but it does not justify a judge in violating both 
 established forms and established principles together, and over- 
 turning old law, simply on the ground that the man on the 
 bench thinks himself more wise than his forefathers. To the 
 mind of the writer of these volumes it is plain, that a woman 
 deserted permanently by her husband ought to be permitted to 
 act as a feme sole, not only in buying and selling ribbons and 
 the like, but also in taking a worthier man for a husband, and 
 benefiting her country and the world by becoming the mother 
 of children. Still, before this is permitted to her, the first hus- 
 band should have the opportunity of being heard on the ques- 
 tion, whether or not he has deserted her, and the finding of the 
 tribunal thereon should be made matter of record imperishable, 
 for the information and guidance of all parties concerned, and of 
 the public. And tliough the law of husband and wife, both as 
 regards the relations of the parties living together, and their 
 relations living separate, may need amendment, the work of 
 amendment belongs to legislators rather than to judges. 
 
 1 Ante, § 591. 
 512 
 
CHAP. XXXTI.] COMMON DOCTRINES. § 613 
 
 II. Other Particular Topics. 
 
 § 613. virife's Presumed Agency. — We have already consid- 
 ered the question of the wife's presumptive agency to bind her 
 husband when he, being on terms of cohabitation with her, is 
 temporarily absent from home.^ Now, without reference to the 
 question whether the parties are cohabiting or not, there is in 
 the wife a presumed authority to do whatever comes fairly 
 within the scope of a business which he knowingly allows her 
 to conduct.^ Thus it was held in New Jersey, that a wife who 
 has been permitted by her husband to trade as a separate trader 
 may transfer her stock in payment of notes given for the pur- 
 chase-money ; '^ and, in Delaware, that, if a husband allows his 
 wife to conduct business as a trader, he is liable for her con- 
 tracts.* On this principle, the Connecticut court in a majority 
 opinion decided, that, where a husband who was absent from 
 his family knew his wife to be keeping a boarding-house to sup- 
 port herself and children, and did not return to them, or make 
 any provision for them, but suffered her to continue in the 
 business and to rent a house in which to carry it on, without 
 expressing any dissent or publishing any prohibition ; and she 
 conducted the business in a reasonable and prudent manner, 
 to support the family ; he was liable on her contract to pay the 
 rent of the house. Said Swift, 0. J. : " Where a man permits 
 those over whom he has a lawful control, who are under his 
 government, and who are not legally capable of contracting, 
 to carry on business, without expressing any dissent, publish- 
 ing any prohibition, or doing any act to restrain them, the law 
 will presume his assent, and he will be liable for their under- 
 takings." Another proposition sustained in this case, was 
 " that, where a husband deserts his wife and children, and 
 leaves her keeping a boarding-house, without famishing the 
 means for her support, and does not return, or make any pro- 
 vision for them, and the wife continues the business in which 
 her husband left her, conducting in a reasonable and proper 
 manner, to obtain a support for herself and children, the hus- 
 
 1 Ante, § 561-564. = Green v. Pallas, 1 Beasley, 267. 
 
 2 Fenner v. Lewis, 10 Johns. 38 ; * Godfrey v. Brooks, 5 Harring. Del. 
 Cropsey v. McKinney, 30 Barb. 47; 396. 
 
 Casteelu. Casteel, 8 Blackf. 240. 
 
 VOL. I. 33 613 
 
§ 615 SEPARATIONS WITHOUT SENTENCE. [BOOK T. 
 
 band is liable for her contracts made in the course of such 
 business." And the principle upon which this proposition was 
 sustained was, that, in the absence of notice to the contrary, 
 the Imsband is presumed in law to consent to the wife's contin- 
 uing to live with the family as she liad done ; and so he is 
 responsible for what she brings into the house, the same as 
 though he were at home, or temporarily absent.^ 
 
 § 614. Continued. — This Connecticut case is perhaps open 
 to some observation. Thus, if the husband and wife were 
 permanently living apart, it is, as we shall by and by see, 
 according to the general doctrine, the duty of persons who 
 give a credit to her husband on her order to inquire into the 
 facts of the separation ; and the husband, to protect himself, 
 need not give notice to the community not to trust her. How, 
 therefore, can there be any agency in these cases, except such 
 as grows out of the marital relation itself, or the presumptions 
 to be drawn from the actual conduct of the husband under the 
 circumstances ? If, as matter of fact, the wife was autliorized, 
 the authority would be just as available in one class of cir- 
 cumstances as another. And a presumed authority might 
 arise from the conduct of the husband as well in a case of sep- 
 aration as when the parties were cohabiting. Consequently 
 it has been held, that, if a wife is abandoned by her husband, 
 and she earns money by her labor, and takes the pay, he can- 
 not, on making his appearance, collect, the pay over again ; ^ 
 and there can be no doubt that this doctrine is just. By 
 leaving her with the capacity to work, and without other means 
 of support, while the law casts on him the duty to maintain 
 her, he must be presumed to intend that she shall use the 
 capacity, and the money which flows therefrom. 
 
 § 615. Continued. — It is dif&cult to resist the conviction 
 that the following is the true distinction : If a husband aban- 
 dons his wife, he leaves with her, what he cannot take away, 
 the authority to pledge his credit for necessaries, but not to 
 pledge his credit for any thing more. He leaves with her also 
 the authority to deal with and dispose of all personal and 
 other property which, in its nature, can be transferred with- 
 
 1 Rotch V. Miles, 2 Conn. 638, 645, 2 Lawrence v. Spear, 17 Cal. 421 ; 
 ^*^- Norcross v. Eodgers, 30 Vt. 588. 
 
 514 
 
CHAP. XXXTI.] COMMON DOCTRINES. § 616 
 
 out his deed, and which he 'voluntarily abandons in her hands, 
 so far as the disposal of the property may be necessary for her 
 Support, and perhaps even further than this. And though he 
 cannot carry with him the wife's capacity to earn money, 
 while he leaves the presence of the wife behind, and therefore 
 does not act quite voluntarily in intrusting this to her keep- 
 ing ; still, as he does voluntarily leave her, he must be conclu- 
 sively held, when he so leaves her, to authorize her to receive 
 and expend the products of her own labor. To go beyond this, 
 and hold the husband bound by her acts as a presumptive 
 agent, not merely for necessaries procured, but for other 
 things, would violate, it is submitted, established and 'just 
 principle. 
 
 § 616. Continued. — Yet there is an Indiana case which 
 holds, that, if a husband entirely abandons his wife and infant 
 children, leaving them no other means of support than the 
 cultivation of a small farm on which he had resided, the jury 
 may infer from these facts (not merely an authority in the 
 wife to take and use the proceeds of the farm and the like, 
 but also) an authority in her to employ, on his responsibility 
 for the wages, one of his minor sons, after becoming of age, to 
 cultivate the farm for the sustenance of the family.^ On the 
 other hand, though perhaps not as being in conflict with any 
 of the foregoing doctrines, it was held in Pennsylvania, that, 
 where there is hostile feeling between a husband and his wife, 
 and he has separated himself from her, the mere fact of her 
 having in possession a bond due to him does not raise the 
 presumption of his having delivered it to her to receive the 
 interest upon it ; nor does his having turned her away without 
 liaving provided other means for her support raise such 
 presumption.^ And quite in harmony with what has already 
 been laid down as the better rule, it was held, in Alabama, 
 that, if a married woman, separated from her husband in 
 another State, has come to this State, and has here by her 
 industry for several years maintained herself and children, 
 the husband meanwhile continuing a^^/ay and asserting no 
 
 1 Casteel v. Casteel, 8 Blackf. 240. 2 Walker v. Simpson, 7 Watts & S. 
 And see Cropsey v. McKinney, 30 Barb. 83. And see Kogers v. Phillips, 3 Eng. 
 47 866. 
 
 515 
 
§ 618 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 claim to her acquisitions, she may, by an indorsement in her 
 own name, pass her title to a bill or note made payable to 
 her.^ 
 
 §617. Credit given to Wife. — Where, though the husband 
 might be made liable, the credit is given to a wife who has a 
 separate estate, and not to the husband, plainly, on well- 
 received principles, the husband will not be liable, even though 
 he is cohabiting with the wife and sees the goods upon her.^ 
 This proposition is clearly correct; and perhaps the authorities 
 would justify the further statement, that the result is the same 
 where the wife has no separate property, and the vender trusts 
 merely to the chance of a voluntary payment.^ Yet the mere 
 charging of the articles to the wife, in the trader's books of 
 accounts, will not necessarily exempt the husband from liability 
 to pay for them.* 
 
 § 618. "Wife using Goods with Husband's Knovsrledge. — Said 
 Lord EUeuborough : " Where a husband is living in the same 
 house with liis wife, he is liable to any extent for goods which 
 he permits her to receive there ; she is considered as his 
 agent, and the law implies a promise on his part to pay the 
 value. If they are not cohabiting, 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 the 
 husband has any control over goods improvidently ordered by 
 the wife, so as to have it in his power to return them to the 
 vender, and he does not return them, or cause them to be 
 returned, he adopts her 'acts, and renders himself answer- 
 able." ^ On this principle it has been held, that, if goods are 
 furnished to a wife living separate from her husband, under 
 circumstances which would not make the husband liable, yet 
 if on reconciliation the husband takes the goods and the wife, 
 
 1 Koland v. Logan, 18 Ala. 307. And 2 Stammers v. Macomb, 2 Wend, 
 
 see further, on the general subject of 454 ; Black v. Bryan, 18 Texas, 453. 
 these sections, Camerlin v. Palmer Com- 3 Bentley v. Griffin, 5 Taunt. 356 • 
 
 pany, 10 Allen, 539 ; Edgerly v. Wha- Holt v. Brien, 4 B. & Aid. 252 ; Shelton 
 
 Ian, 106 Mass. 307 ; Hill v. J,ewald, 3 v. Pendleton, 18 Conn. 417. 
 Smith, Pa. 271 ; Reynolds v. feweetser, * Furlong v. Hysom, 85 Maine, 332. 
 
 15 Gray, 78; Burlen v. Shannon, 14 And see Wray v. Cox, 24 Ala. 337; 
 
 Gray, 433 ; Cunningham v. Eeardon, Cropsey v. McKinney, 30 Barb. 47. 
 
 • 538. 5 Waithman u. Wakefield, 1 Camp. 
 
 120. 
 516 
 
CHAP. XXXVI.] COMMON DOCTRINES. § 620 
 
 he must pay for the goods ; ^ and, if he receives the goods 
 home, promising to pay, he may be holden on this promise, 
 even though it was obtained by the wife's deceitful practices, 
 provided the vender was not a party to the deceit.^ 
 
 § 619. Effect of Husband's offering to receive Wife — Making 
 Allowance to Wife. — The general doctrine has already been 
 mentioned,^ that the husband may supply his wife in his own 
 way, with such necessaries as the law places him under obliga- 
 tion to provide.* But it has been held, that, if a husband has 
 been guilty of adultery, and then his wife leaves him for this 
 cause, he cannot free himself from the duty to pay for necessa- 
 ries which a third person may furnish her, by offering her 
 board and a separate apartment in his own house.^ And we 
 have already seen that a husband who sends his wife away 
 with his credit, cannot limit her facilities for obtaining credit 
 by forbidding a particular person to trust her." Yet though a 
 voluntary separation have its foundation in the misconduct 
 of tlie husband, still, if he make her a suitable allowance and 
 pay it, she does not then carry with her his credit.'^ 
 
 § 620. Burden of Proof. — Various doctrines as to the burden 
 of proof in these cases have been already mentioned.^ If hus- 
 band and wife are living separate, inasmuch as such separate 
 living is just as consistent with a state of facts in which the 
 husband would not be liable on her contracts for necessaries as 
 with a state of facts in which he would be so liable, the credi- 
 tor, who has trusted her on the husbg,nd's account, must prove 
 the existence of the circumstances from which the liability 
 springs. This proposition is so plain in itself, and the reason 
 on which it rests is so obvious to the legal understanding, that 
 nothing further need be said in its support. Yet there are a 
 few cases which seem hardly to recognize this doctrine ; while, 
 in some other cases, the reason of the doctrine does not very 
 
 1 Eenniok u. Pioklin, 3 B. Monr. ' Kemp v. Downham, 5 Harring. 
 166. Del. 417. And see Fredd u. Eves, 4 
 
 2 Allen V. Aldrich, 9 Post. N. H. Barring. Del. 385; Baker v. Barney, 
 63. 8 Johns. 72 ; Cany v. Patton, 2 Ashm. 
 
 3 Ante, § 560. 140 ; Harsbaw v. Merryman, 18 Misso. 
 « Morgan v. Hughes, 20 Texas, 141. 106 ; Mott v. Comstock, 8 Wend. 544. 
 
 5 Sykes v. Halstead, 1 Sandf. 483. « Ante, § 556, 560, 564, 567, 673, 
 
 6 Ante, § 572. 579. 
 
 517 
 
§ 621 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 clearly appear, though, on the whole, it is abundantly supported 
 by authority, both English and American.^ 
 
 § 621. Money lent to buy Necessaries — Trader — Other Third 
 Person. — We have, in another connection, briefly considered 
 the question, — What are necessaries ? ^ ' Money may buy 
 necessaries, but it is not such in itself. Therefore, if a man 
 lends to a married woman, whose husband being under obliga- 
 tion to furnish her necessaries neglects so to do, money which 
 she actually expends in this way, he cannot maintain an action 
 at law against the husband for the money .^ But it is not requi- 
 site the person who furnishes the necessaries should be a trader, 
 in order to recover their price ; any third person may buy the 
 necessaries, deliver them to the wife, and then maintain his suit 
 against the husband.* And in equity, — that is, in that form 
 of legal proceeding which is carried on in a court of equity, in 
 distinction from a court of common law, — the person who 
 lends money to the wife with which to buy necessaries can 
 Recover the money, on showing that it has been so expended in 
 fact. 5 This last proposition rests equally well on the older and 
 on the later authorities. Thus, where the plaintiff had lent the 
 wife £S0 to be expended in necessaries, and she had so ex- 
 pended it, and the husband had devised his lands to trustees to 
 pay his debts, and had then died, — the court held, in the time 
 of Peere Williams's Reports, that this plaintiff, on a bill in 
 equity against tliese trustees, could recover for the money so 
 lent. " Admitting," said the court, " the wife cannot at law- 
 borrow money, though for necessaries, so as to bind the hus- 
 band, yet this money being applied to the use of the wife for 
 her care and for necessaries, the plaintiff that lent this money 
 
 1 See, on this whole matter, Main- Treanor, 11 Ga. 324; Cartwright v. 
 
 waring v. Leslie, Moody & M. 18, 2 Bate, 1 Allen, 514, 516 ; Billing v. Pil- 
 
 Car. & P. 507 ; Clifford v. Laton, 3 Car. cher, 7 B. Monr. 458. 
 & P. 15, 1 Moody & M. 101 ; Johnston 2 ^i^nte, § 554. 
 
 V. Sumner, 3 H. & N. 261 ; Gill v. Read, 3 Knox v. Bushell, 3 C. B. n. s. 334 ; 
 
 5 K. I. 343 ; Porter v. Bobb, 25 Misso. Walker v. Simpson, 7 Watts & S. 83! 
 
 36; Pool b. Everton, 5 Jones, N. C. And see Zeigler w. David, 23 Ala. 127. 
 241 ; Hunter v. Boucher, 3 Pick. 289 ; * Gill v. Bead, 5 R. I. 343 ; Mayhew 
 
 Eeese v. Chilton, 26 Misso. 598 ; Mott v. Thayer, 8 Gray, 172. 
 V. Comstock, 8 Wend. 544 ; Harshaw 5 Deare v. Sout'ten, Law Rep. 9 Eq. 
 
 V. Merryman, 18 Misso. 106 ; Kemp v. 151 ; Walker v. Simpson, supra ; and 
 
 Downham, 5 Barring. Del. 417 ; Cany cases cited in the remaining notes to 
 
 e. Patton, 2 Ashm. 140 ; Mitchell v. this section. 
 518 
 
CHAP. XXXVI.] COMMON DOCTRINES. § 622 
 
 must in equity stand in the place of the persons who found and 
 provided such necessaries for the wife. And therefore, as such 
 persons would be creditors of the husband, so the plaintiff shall 
 stand in their place, and be a creditor also." ^ And this doc- 
 trine has been confirmed by late English authority.^ 
 
 § 622. Continued. — There was indeed an equity case before 
 Vice-Chancellor Shadwell, in which, where the creditor had 
 brought his suit in equity directly against the husband for the 
 money lent, and not against trustees, as in the case from 
 Peere Williams, this learned judge refused to entertain the 
 cause, upon the following distinction : " In the cases cited," he 
 said, " there were trusts for payment of the husbands' debts ; 
 which gave the court jurisdiction ; the only question was, 
 whether the plaintiffs were creditors of the husbands. If they 
 were, there could be no doubt that the court would execute the 
 trusts in their favor. In this case, there is no trust to execute, 
 but the plaintiff sues merely as a creditor of the husband ; and, 
 as a mere creditor, she has no equity against the husband." ^ 
 But in the later case, before the higher court, cited to the last 
 section, this distinction was not recognized, and the broader 
 doctrine was maintained. Said Lord Chancellor Campbell : 
 " An action at law " would not lie, <fec. ; for " courts of law 
 ■will not recognize any privity between the husband and any 
 person who has supplied his wife with money to purchase 
 necessaries, or pays the tradespeople who have furnished 
 them. Nevertheless it has been laid down from ancient times, 
 that a court of equity will allow the party who has advanced 
 the money, which is proved to have been actually employed in 
 paying for necessaries furnished to the deserted wife, to stand 
 in the shoes of the tradespeople who furnish the necessaries, 
 and to have a remedy for the amount against the husband. I 
 do not find any technical reason given for this, but it may pos- 
 sibly be that equity considers that the tradespeople have for 
 valuable consideration assigned to the party who advanced the 
 money the legal debt which would be due from the husband on 
 furnishing the necessaries, and that, although a chose in action 
 
 1 Harris v. Lee, 1 P. Wms. 482, 2 Jenner v. Morris, 3 DeG., F. & J. 
 483. And see Marlow v. Pltfeild, 1 P. 45, 1 Drew. & S. 218, 7 Jur. n. s. 375. 
 ■W-ms 558. ^ May v. Skey, 16 Sim. 588, 589. 
 
 519 
 
§ 623 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 cannot be assigned at law, a court of equity recognizes the 
 right of the assignee. Whatever may be the reason, the doc- 
 trine is explicitly laid down in Harris v. Lee," &c. Sir J. G. 
 Turner, whose observations, in the report, follow those of the 
 Lord Chancellor, grappled with the supposed difficulty in, per- 
 haps, a better way ; he said : " It is a very ancient head of the 
 equitable jurisdiction of the court to interpose in cases in which 
 the principles of the law give a riglif, but the forms of the law 
 do not give a remedy. Now, what is the case here ? It is 
 beyond all question that the principle of the law is, that the 
 husband deserting his wife is liable for necessaries supplied to 
 her ; but it is equally beyond question, that, if money be ad- 
 vanced to the wife to purchase necessaries, the money, although 
 in fact so applied, cannot be recovered at law, because of the 
 necessary forms of the action at law for the recovery of the 
 money ; the court of law cannot look beyond the advance, or 
 enter into the application of the money." ^ Perhaps the true 
 view of the reason is, that, according to tlie principles of our 
 jurisprudence as recognized in all our courts, the husband 
 ought to pay the money ; that, according to immemorial usage, a 
 court of law is not the proper tribunal in which to bring the 
 suit, while a court of equity is the proper tribunal ; therefore 
 the precedents should be followed. When we talk of the heads 
 of equity jurisdiction, we only attempt to classify the precedents ; 
 and although a judge may do such an ill considered thing as to 
 deny a right admitted in principle, and sustained likewise by 
 precedent, because he cannot classify the precedent, yet this is 
 a doing not to be commended. 
 
 § 623. Town furnishing Necessaries to Wife as Pauper. — 
 Whether, when a wife is refused necessaries by her husband, ■ 
 the town acting through its officers having charge of the poor 
 can supply them, and in an action at law compel the husband 
 to refund, is a question which in another aspect has been 
 already partly considered.^ It was held, in Massachusetts, that 
 in such a case the town may recover the amount requisite for the 
 wife's support as a pauper, but nothing more for what might be 
 
 1 Jenner v. Morris, as cited in the 2 Ante, § 566. 
 
 last section. The extracts given in 
 the text are from the Jurist report. 
 
 520 
 
CHAP. XXXVI.] COMMON DOCTRINES. § 624 
 
 deemed to be further due her by reason of her husband's con- 
 dition and standing in life. " She does not," said Thomas, J., 
 " carry to the town the credit of her husband." ^ On the other 
 hand, in one of the New York courts, not so much as this was 
 conceded ; it being held, that the town could recover nothing 
 of the liusband ; because, it was said, if her husband was able 
 to support her, she was not a pauper .^ In Ohio, the husband 
 was held liable to the town.^ 
 
 § 624. Wife as Witness. — The doctrine is familiar, that, 
 though a wife cannot in general be a witness against her hus- 
 band, yet, if she is beaten by him, she may testify, in a criminal 
 proceeding, against him as to the battery. But suppose, in a 
 case of cruelty, she leaves him, and pledges his credit for neces- 
 saries, — Can she be a witness in behalf of the creditor ? The 
 Massachusetts court has held, that, prior to Stat. 1859, c. 230, 
 she could not be.* In a New York case, upon a habeas corpus 
 directed to the father-in-law of the husband, requiring him to 
 bring before the Court of Chancery the wife and her infant 
 child, it was held, that the wife was a competent witness for 
 this defendant, to prove acts of cruelty committed by the hus- 
 band on her, justifying her separation from the husband and 
 her refusal to return to his house ; also, that she could not tes- 
 tify to his general character, or to any misconduct in other 
 respects. Said the learned chancellor, Walworth : " This is a 
 question which, so far as I have been able to discover during 
 the short time I have been allowed to examine the same, has 
 never been distinctly decided by any court, either in this coun- 
 try or in England." After mentioning the general rule which 
 prohibits a wife from being a witness against her husband, and 
 the known exceptions to the rule, he proceeded : " She is per- 
 mitted 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 
 
 1 Monson v. Williams, 6 Gray, 416. See Cooper v. Lloyd, 6 C. B. n. s. 519 ; 
 
 2 Norton u. Rhodes, 18 Barb. 100. Downing v. Rugar, 21 Wend. 178 ; 
 
 3 Howard v. Whetstone, 10 Ohio, Jacobs v. Whitcomb, 10 Cush. 255; 
 365. Johnson v. Sherwin, 3 Gray, 374. 
 
 * Burlen v. Shannon, 14 Gray, 483. 
 
 521 
 
§ 625 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 necessity of admitting her as a witness against her husband is 
 sufficiently strong to overbalance the principle of public policy 
 upon which the general rule of exclusion is based, she ought to 
 be received as a witness, if she has no personal interest adverse 
 to his which would of itself form a ground for her exclusion." ^ 
 The rules of evidence are very arbitrary ; yet it is difficult to 
 see why, on principle, a wife should not be admitted to prove 
 the ill conduct of her husband by reason of which she has been 
 compelled to fly from his house, as well where the proceed- 
 ing is a civil one as where it is criminal. If indeed there is to 
 be allowed any exception to the rule which excludes her evi- 
 dence, surely the exception should prevail where the question 
 is, whether she shall live or starve in the place to which she 
 has fled. 
 
 § 625. "Wife's Declarations — Judgments — Action for enticing 
 away 'Wife. — To what extent the declarations of the wife, made 
 at or about the time of leaving the house of her husband, as- 
 suming her not to be a competent witness, may, in these cases, 
 and in actions by the husband against third persons for harbor- 
 ing her, and the like, be given in evidence, is a question which 
 will best be considered when we come to treat of the evidence 
 in divorce cases for cruelty.^ So, in subsequent parts of these 
 volumes, we can better consider than here, the effect of judg- 
 ments in divorce cases upon this class of suits.^ That an action 
 may be maintained by the husband, against a third person, for 
 enticing away his wife, where nothing in the nature of criminal 
 conversation is alleged, is a proposition sufficiently sustained 
 both in principle and in authority.* The practitioner who 
 wishes to study the distinctions as to when such an action will 
 lie, and when it will not, will find much help from consulting 
 the authorities referred to in this section. The exact lines 
 which the law draws with respect to this question are not very 
 distinct. In some cases the sole inquiry would seem to be, 
 
 1 People V. Mercein, 8 Paige, 47, 49, 387 ; Burlen v. Shannon, 14 Gray, 433 ; 
 52, 53. Day v. Spread, Jebb & Bourke, 163. 
 
 2 Gilchrist v. Bale, 8 "Watts, 355; * Scherpf v. Szadeczky, 4 E. D. 
 Jacobs V. Whitcomb, 10 Gush. 255 ; Smith, 110 ; Chancellor Walworth in 
 Johnson v. Sherwin, 3 Gray, 374 ; Pres- People v. Mercein, 8 Paige, 47, 54 ; 
 ton V. Bowers, 13 Ohio State, 1, 11 ; Bennett v. Smith, 21 Barb. 439 ; Barnes 
 Palmer v. Crook, 7 Gray, 418. v. Allen, 30 Barb. 663 ; Babe v. Hanna, 
 
 3 See Burlen v. Shannon, 3 Gray, 5 Ohio, 530. 
 
 522 
 
CHAP. SXXVI.] COMMON DOCTRINES. § 627 
 
 whether the wife was justified in leaving her husband. But if 
 the defendant were her father, or other near relative, or perhaps 
 if he were any disinterested third person, reason would seem to 
 dictate, and some of the cases appear to hold, that, to render 
 him liable, there must appear, not only a want of justification 
 in the wife, but malice or intentional wrong in the defendant. 
 
 § 626. Dower after Elopement ana Adultery — Stat. 'Westm. 2. 
 — The English statute of Westm. 2 (13 Edw. 1, stat. 1), c. 34, 
 which in a sort of general way may be said to be common law 
 in the United States, while in some of the States it has been 
 expressly re-enacted,' provides, that, " if a wife willingly leave 
 her husband, and go away, and continue with her advouterer 
 (adulterer), she shall be barred for ever 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 coercion of the church, reconcile her, and suffer her to 
 dwell with him ; in which case she shall be restored to her 
 action." The expositions of this statute, which is thus fully 
 and exactly quoted, will be found elsewhere ;^ but it is to be 
 observed, that they proceed upon rules differing in several 
 particulars from those which determine the right of the hus- 
 band to a divorce for the wife's adultery ; and so, if there were 
 no other objection, the sentence of separation could not of 
 itself bar her of dower, though she 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 apparent confusion in the books.^ 
 
 § 627. Continued. — On a more exact examination of this 
 subject we see, that this statute of Westminster has not been 
 received, or is not now deemed to be law, in Massachusetts,'' 
 Missouri,^ and Rhode Island : ^ but it did, and probably still 
 
 1 1 Greenl. Cruise, 156, 175, notes ; on Dower, 20, note ; Roll. Ab. 680, 
 4 Kent Com. 53. In New York the 681; Shute v. Shute, Prec. Ch. Ill; 
 plea of elopement in bar of dower is 2 Bright Hus. & "Wife, 362. ' 
 taken away by the force of the Re- ■• Lakin v. Lakin, 2 Allen, 45. That 
 vised Statutes. lb. it was formerly held to be common 
 
 2 1 Greenl. Cruise, 175, 176 ; 2 Inst, law in this State, see ante, § 455. 
 435, 436 ; Co. Lit. 32 a ; Godol. Ab. 5 Lecompte v. Wash, 9 Misso. 547. 
 508 ; Govier v. Hancock, 6 T. R. 603. 6 Byram v. Batcheller, 6 R. I. 543. 
 
 3 See Co. Lit. 32, note, 194; Park 
 
 523 
 
§ 628 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 does, have force in South Carolina ^ and New Hampshire.^ 
 How it stands in the other States, the writer is not able to say. 
 The statute was re-enacted in New York, but it was repealed 
 in 1830. The statute of repeal " has brought us back," said 
 Bronson, J., " to the common law, as it stood before the statute 
 of 13 Edw. I. ; for, as we have already seen, adultery did not 
 work a forfeiture at the common law. As to a divorce, a 
 vinculo, that always put an end to the claim of dower ; for, 
 although it was not necessary that the seisin of the husband 
 sliould continue during the coverture, it was necessary that 
 the marriage should continue until the death of the husband." ^ 
 This statute seems to be fairly enougli within the general class 
 of those English statutes which are parts of the common law 
 of our States ; but, owing to peculiar early or present legisla- 
 tion in some of the States, it is found to be repugnant in them 
 to provisions of absolute law thus established, and therefore 
 properly held not to be of force. 
 
 §628. Continued. — A single point, in the interpretation of 
 this. statute, may be here noticed. The words, if the act were 
 a modern one, would seem pretty clearly to require, that, un- 
 less the two things, adultery and desertion in the wife, com- 
 bined, she would not be barred of her dower. In a late 
 English case, however, it was held, that a woman driven away 
 from her home by her husband's cruelty — a case clearly not 
 of desertion in her, but more nearly desertion in him — forfeits 
 her dower by adultery without reconciliation. " The best con- 
 struction of the statute," said Willes, J., " seems to be, that 
 the leaving sponte is not the essence of the offence which leads 
 to the forfeiture. It is enough, if, having left her husband's 
 house, the woman afterwards commits adultery." * This deci- 
 sion proceeded very much upon the exposition of Lord Goke,^ 
 as being matter of settled law. In an Upper Canada- case, 
 where the husband had first deserted his wife and then she 
 had lived in adultery, she was held not to be barred.^ And it 
 
 1 Bell V. Nealy, 1 Bailey, 312. * Woodward v. Dowse, 10 C. B. n. s. 
 
 2 Cogswell V. Tibbetts, 3 N. H. 41. 722, 732. 
 
 3 Reynolds v. Reynolds, 24 Wend. 5 2 Inst. 435. 
 
 193, 197. 6 Graham v. Law, 6 U. C. C. P. 
 
 310. 
 
 524 
 
CHAP. XXXVII.] UNDER ARTICLES. § 630 
 
 may be doubtful, whether either respect for ancient exposi- 
 tions, or any just modern view of tlie words, should lead to a 
 decision differing from this Canada one.^ 
 
 § 629. Forfeiture of Interest in Husband's Estate — " Living in 
 Adultery." — The Indiana statute providing, that, " if a wife 
 shall have left her husband, and shall be living at the time of 
 his death in adultery, she shall take no part of the estate of her 
 husband ; " the court held a wife not to be barred, where there 
 was bxit a single adulterous act.^ 
 
 CHAPTER XXXVII. 
 
 SEPARATION UNDER ARTICLES. 
 
 630. Introduction. 
 631-633. The Doctrine in Legal Principle.' 
 634-638. The Doctrine as held in England. 
 639-656. The Doctrine as received in our several States. 
 
 § 630. Scope of this Discussion — How the Chapter divided. — 
 Those who wish to learn on what principles, and within what 
 limitations, the law upholds contracts between husband and 
 wife after marriage, whether with or without the intervention 
 of a trustee, are referred to the author's work on the " Law of 
 Married Women." The object of this chapter is the practical 
 one of drawing in general outline the English doctrine relating 
 to separations under articles, and then inquiring to what 
 extent the doctrine thus ascertained is accepted in the United 
 States. What is to be said, therefore, may be arranged under 
 the three following heads : I. The Doctrine in Legal Prin- 
 ciple ; II. The Doctrine as held in England ; III. The Doc- 
 trine as received in our several States. 
 
 1 And see Cogswell v. Tibbetts, 3 neglect, and abandonment. Rawlins v. 
 
 N. H. 41. According to a Delaware Buttel, 1 Houston, 224. — 
 
 case, a wife does not forfeit dower by 2 Gaylor v. McHenry, 15 Ind. 383. 
 
 eloping from her husband and living See also, in this connection, Earle u. 
 
 in adultery with another man. If the Earle, 9 Texas, 630 ; Sistare v. Sistare, 
 
 husband was guilty of adultery and 2 Root, 468 ; Potier v. Barclay, 15 Ala. 
 
 caused her to leave him by his cruelty, 439. 
 
 625 ■ 
 
§ 633 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 I. The Doctrine in Legal Principle. 
 
 § 631. Separations against Policy of Law — Agreements to 
 separate void. — A man and woman who enter into the relation 
 of marriage place themselves thereby under the law of mar- 
 riage, as received in the community in which they dwell. 
 And it is a cardinal principle of this law among us, that, having 
 entered into the matrimonial bond, they cannot annul it, except 
 for the causes and in the manner prescribed by law. And 
 when they proceed thus to unloose the bond, the court to which 
 application is made requires proof of the causes, by evidence 
 other than the mere admissions of the parties themselves. 
 Tlience it follows, that no agreement between the two for a 
 divorce, or for half a divorce, or for any fractional part of 
 a divorce, can be valid in law. No agreement operating col- 
 laterally, in such a way as indirectly to effect the same object, 
 can be of any force. A court cannot countenance such an 
 agreement, cannot wink at it, cannot permit it to be of avail, 
 even for a lawful purpose which may be found inseparably 
 connected with the unlawful. 
 
 § 632. Husband to maintain "Wife. — But there is another 
 principle just as distinct in our law as the one laid down in 
 the last section ; namely, that a husband cannot avail himself 
 of his own wrong to free himself from the duty to maintain 
 liis wife. So also, of course, though the husband has com- 
 mitted no wrong, he may contribute of his means to support 
 his wife, even though the wife be erring. 
 
 § 633. From -virliat the Doctrine of Separation under Articles 
 proceeds. — Out of the two distinct and several principles 
 brought to view in the last two sections, comes the entire doc- 
 trine of separations under articles. When we look at the 
 cases, we find that they are sometimes discordant, and some- 
 times the particular decision proceeded on a misapprehension 
 of true legal distinctions ; but, on the whole, tlie law as 
 adjudicated both in England and the United States is the mere 
 sequence of these two principles. Let us examine, therefore, 
 the matter as it rests on adjudication. 
 526 
 
CHAP. XXXVII.] UNDER ARTICLES. § 634 
 
 II. The Doctrine as held in England. 
 
 § 634. "Whether Articles bar Suit for Restitution of Conjugal 
 
 Rights. — In accordance with one of the principles above laid 
 
 down, it has become settled law in England, where the suit 
 
 for the restitution of conjugal rights has always been and still 
 
 is allowed, that, though in articles of separation the party 
 
 covenants not to bring tliis suit against the other party to 
 
 compel cohabitation, yet the covenant has no binding force, at 
 
 least it has none in the matrimonial court, and the suit may be 
 
 maintained the same as though the covenant had not been 
 
 made.i In one case where there was an attempt to plead, in 
 
 the ecclesiastical court, articles of separation in bar of a suit 
 
 for the restitution of conjugal rights, Lord Stowell observed: 
 
 " The objection taken against these articles is, that deeds of 
 
 separation are not pleadable in the ecclesiastical court ; and 
 
 most certainly they are not, if pleaded as a bar to its further 
 
 proceedings ; for this court considers a private separation as 
 
 an illegal contract, implying a renunciation of stipulated 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 personce, 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 
 
 on which the solemnities both of civil society and religion have 
 
 stamped a binding authority, from which the parties cannot 
 
 release themselves by any private act of their own, or for 
 
 causes which the law itself has not pronounced to be sufficient, 
 
 and sufficiently proved." 2 In another case Sir Jolin Nicholl 
 
 employed the broad language : " Any private understanding 
 
 or agreement [between husband and wife] to live separate is 
 
 not recognized by the law." ^ 
 
 1 Mortimer K. Mortimer, 2 Hag. Con. Brown, Law Rep. 7 Eq. 185; Anquez 
 
 310, 318 ; Barlee v. Barlee, 1 Add. Ec. v. Anquez, Law Rep. 1 P. & M. 176. 
 301, 305 ; Lord Brougham in Warren- 2 Mortimer v. Mortimer, supra, p. 
 
 der ,.. Warrender, 2 CI. & T. 488, 561 ; 318. 
 
 Westmeatii v. "Westmeath, 2 Hag. Ec. ' Smith v. Smith, 4 Hag. Ec. 609, 
 
 Supp. 1, 44; Smith v. Smith, 2 Hag. 514.' And see King v. Sansom, 3 Add. 
 
 Ec. Supp. 44, note ; Sperlng v. Spe- Ec. 277, 281 ; Beeby v. Beeby, 1 Hag. 
 
 ring, 3 Swab. & T. 211 ; Brown v. Con. 142, note ; Westmeatii v. West- 
 meath, Jacob, 126, 136. 
 
 627 
 
§ 635 SEPARATIONS WITHOUT SENTENCE. [BOOK T. 
 
 § 634 a. Continuea. — There is, however, an English case 
 in which the Lord Chancellor, reversing a decree of the Master 
 of the Rolls, held, that equity will restrain a party from prose- 
 cnting a suit for the restitution of conjugal rights if he has 
 covenanted in articles of separation not to bring such a suit.^ 
 This case was taken by appeal to the House of Lords, and 
 there argued, but the woman died and no decision was ren- 
 dered .^ The judgment of the Lord Chancellor was certainly 
 an extraordinary one ; for, in the first place, it was a departure 
 from all principle and from precedent to permit married par- 
 ties to modify by a valid agreement their matrimonial status, 
 which ought to be regulated by public and general rules of law, 
 and not by private contract; and, in the second place, the sub- 
 ject was exclusively witliin the jurisdiction of the matrimonial 
 court and not the courts of equity, and there was no proper 
 ground upon which equity could interfere. To enforce, in any 
 tribunal, a private agreement in aid of marriage might be 
 different ; but this was an agreement in aid of its practical dis- 
 solution, and therefore contrary to the policy of the law.^ 
 
 § 635. Condition to live separate — Generally as to Separation 
 Deeds. — Again, as showing the policy of the law to be against 
 permitting parties practically to abrogate their status of mar- 
 riage by a private agreement, it may be mentioned, that, in 
 England, wlien a legacy is left to a married woman on the 
 condition of her living apart from her husband, the condition 
 is contrary to good morals, and therefore void ; consequently 
 she will take the legacy discharged of the condition.* In 
 short, Lord Brougham in one case, speaking of deeds of sepa- 
 ration, said : " What is the legal value or force of this kind of 
 agreement in our law? Absolutely none whatever — in any 
 court whatever — for any purpose whatever, save and except 
 one only, — the obligation contracted by the husband with 
 trustees to pay certain sums to the wife, the gestui que trust. 
 
 1 Hunt V. Hunt, 31 Law J. n. s. Ch. of this section, "Williams v. Baily, Law 
 161, 172; De G. F. & J. 221, 225. Rep. 2 Eq. 731 ; Tliomas v. Everard, 
 
 2 Eowley c/. Rowley, Law Rep. 1 6 H. & N. 448. 
 
 H. L. Sc. 63 ; Brown v. Brown, Law * Brown v. Peck, 1 Eden, 140. And 
 
 Kep. 7 Eq. 185. see "Westmeath v. Westmeath, Jacob, 
 
 3 And see the Cases cited in the last 126, 137. 
 note. See, also, on the general subject 
 
 528 
 
CHAP. XXXVII.] UNDER ARTICLES. § 636 
 
 111 no other point of view is any effect given by our jurispru- 
 dence, either at law or in equity, to such a contract. No 
 damages can be recovered for its breach, no specific perform- 
 ance of its articles can be decreed. No court, civil or 
 consistorial, can take notice of its existence. So far has the 
 legal presumption of cohabitation been carried by the common- 
 law-courts, that the most formal separation can only be -given 
 in mitigation of damages, and not at all as an answer to an 
 action for criminal conversation, the ground of which is the 
 alleged loss of comfort in the wife's society ; and all the 
 evidence that can be adduced of the fact of living apart, and 
 all the instruments that can be produced binding the husband 
 to suffer the separate residence of his wife, — nay, even where 
 he has for himself stipulated for her living apart, and laid 
 her under conditions that she should never come near him, — 
 all is utterly insufficient to repel the claim which he makes 
 for the loss of her society without doing any act, either in 
 court or in pais, to determine the separation or annul the 
 agreement." ^ 
 
 § 636. Two Purposes of Separation Deed — Cessation of 
 Cohabitation — Support to Wife — Not Restitution of Conjugal 
 Rights — Present Separation. — There are two purposes, there- 
 fore, which have been attempted to be effected by deeds of 
 separation ; the one, to secure to the parties, or to the party 
 asking the separation, the right to abandon the matrimonial 
 cohabitation ; the other, to secure to the wife a support from 
 her husband. To effect the former of these purposes, tlie 
 deed is utterly powerless ; to effect the latter, it may be good 
 or not according to the circumstances and to the structure 
 of the deed. But, suppose the deed attempts more than it can 
 lawfully accomplish, is it therefore void in whole, or void only 
 as to the unlawful part? Here, in this question, the difficul- 
 ties connected witlj our subject appear. The decisions relating 
 to this question have fluctuated ; but it seems to be conceded 
 that the insertion of what may be called the impossible matter, 
 or, in other words, the illegal matter, does not in all instances 
 make the instrument wholly void.^ For example, these deeds 
 
 1 Warrender 'u. Warrender, 2 CI. & ^ Byrne v. Carew, 13 Irish Eq. 1. 
 F. 488, 527. See Elworthy v. Bird, 2 Sim. & S. 372. 
 
 VOL. I. 34 .529 
 
§ 637 SEPARATIONS WITHOUT SENTENCE. [BOOK T. 
 
 of separation often contain, in England, such provisions as 
 that the party shall not bring a suit for the restitution of con- 
 jugal rights, and the like, — "the ordinary class of provisions," 
 observes Sir John Nicholl, " for enforcing, so far as may be, 
 the continuance, and preventing the determination, of the 
 separate state in which the parties covenant to live, .... 
 which, nearly in all cases, find their way into deeds of this 
 nature, though nugatory as to any binding effect on the parties 
 in this particular,"^ — yet the writer is not aware that this 
 class of provisions, made in cases where a separation has 
 already taken place, have been generally held to bar the wife 
 of the separate maintenance secured by the deed. And there 
 is even a late English case wherein such provisions seem to be 
 looked upon with no disfavor, and a sort of validity is appar- 
 ently given to them.^ There are other cases having a similar 
 aspect.^ 
 
 § 637. Future Separation. — Suppose, on the other hand, the 
 deed provides for a future separation, — not merely for a support 
 to the wife after a separation has already taken place, or been 
 determined upon, — in this case, the promised provision being 
 made to depend, as its condition, on the future doing of an 
 act contrary to the policy of the law, the deed will be pro- 
 nounced wholly void.* Such a case as this falls within the 
 same reason as the one, already mentioned,^ of a legacy left 
 to a married woman on condition of her living apart from 
 her husband ; but there, as the condition can be separated 
 from the rest, it only is void ; here, as the main matter rests 
 upon the condition, the main matter drops. Likewise when 
 no separation actually takes place the deed is void.^ And per- 
 haps what we see here will teach us the true distinction be- 
 tween cases in which the illegal matter, or matter contrary 
 to the policy of the law, will render the whole deed void, and 
 those in which it will not. If the lawful rests upon the unlaw- 
 
 . 1 Sullivan o. Sullivan, 2 Add. Ec. Jee v. Thurlow, 2 B. & C. 547, 551 ; 
 
 299, 303, 304. Hindley v. Westmeath, 6 B. & C. 200 • 
 
 2 "Wilson V. "Wilson, 31 Eng, L. & M^estmeath v. Salisbury, 5 BHeh N R 
 E<i. 29, 1 H. L. Cas. 538, 5 H. L. Gas. 339. s . • • 
 40. And see ante, § 634 a. 6 Ante, § 635. 
 
 3 See, among other cases, Sanders '« Bindley v. MuUoney, Law Ren 7 
 u. Rodway, 16 Beav. 207. Eq. 343. 
 
 * Durant v. Titley, 7 Price, 577; 
 630 
 
CHAP. XXXYII.] UNDER ARTICLES. § 640 
 
 ful, the whole falls. But if the lawful stands independent of 
 the unlawful, it may continue to stand, though the latter is 
 null, or more than null. 
 
 § 638. Property Interests. — We see, therefore, that the main 
 matter connected with these deeds of separation relates to the 
 separate property interest which the deed secures to the wife, 
 an interest which is often equally secured during a cohabita- 
 tion ; therefore it would not be wise to enter into a further 
 consideration of this particular branch of the subject, though it 
 belts main branch, in these volumes, The foregoing sections 
 present the principles on which the cases proceed. But the 
 English books contain multitudes of minor points not here 
 stated, and cases not here referred to. Let us bring under 
 review some of the American cases ; extending, in such review, 
 our inquiries somewhat further into the American law than in 
 these sections we have done into the English ; and so close 
 the chapter. 
 
 III. The Doctrine as received in our several States. 
 
 § 639. General View. — It may be observed, in general terms, 
 that separations under articles are much less frequent in the 
 United States than they appear to be in England, and that they 
 are certainly not more favored by the courts here than there, 
 and perhaps are not as much favored. So far, however, as 
 American decisions have covered the ground, they differ con- 
 siderably in the different States. There is nothing which may. 
 be called an American law on the subject. It will consequently 
 be the purpose of the remaining sections of this chapter to 
 present a brief digest, in the order of the States, of points which 
 have been de.cided therein. 
 
 § 640. Alabama. — It was held in this State, that a married 
 woman, living apart from her husband, and owning a separate 
 estate by deed, cannot, at common law, make any contract on 
 which she or her personal representatives can be sued at law ; 
 and that this principle of the common law is not affected by 
 any statutory provision. Yet it was observed by Rice, C. J. : 
 " By such contract she may charge her separate estate, and 
 
 531 
 
§ 644 a SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 authorize a court of equity to enforce it as such a charge ; but 
 a court of law cannot enforce such a contract." ^ 
 
 § 641. California. — It has been in this State laid down as 
 well-established doctrine, that a valid agreement for an imme- 
 diate separation between husband and wife, and for a separate 
 support to the wife, may be made through the medium of a 
 trustee ; and the agreement will be upheld if immediately fol- 
 lowed by actual separation. But if the parties after the separa- 
 tion become reconciled, and live together, this will avoid the 
 deed, the consideration failing.^ 
 
 § 642. Connecticut. — It was by the majority of the court 
 held in this State, that an action will lie against the husband, 
 in the name of the trustees, on articles of separation.^ 
 
 § 643. Georgia. — A valid agreement — it was in this State 
 held — may be made between husband and wife through the 
 intervention of a trustee, for an immediate separation, and for 
 a separate allowance to the wife for her support.* 
 
 § 644. Indiana. — On the separation of husband and wife, — 
 so it has been held in this State, — the husband having bound 
 himself by deed to pay to a trustee a certain sum annually for 
 four years, for the maintenance of the wife, reserving to himself 
 the right to deduct from the amount whatever he should be 
 compelled to pay for debts she might subsequently contract, — 
 the contract is binding and may be enforced against him.^ An 
 agreement relating to a separation may be good without the 
 intervention of a trustee. And where it is fully executed on 
 the part of the husband, and it is reasonable, and the con- 
 sideration is good, it may be upheld in equity though it was 
 by parol.® 
 
 § 644 a. Iowa. — In this State, deeds of separation through the 
 intervention of trustees are good. Thus, where, in such a deed, 
 the husband stipulated to pay an annual sum to the wife for 
 her release of all right of dower in his lands, and for being held 
 
 1 Parker v. Lambert, 31 Ala. 89. 2 -Wells v. Stout, 9 Cal. 479. 
 
 See also Moss v. McCall, 12 Ala. 630 ; 3 Nichols v. Palmer, 5 Day, 47. And 
 
 Pinkston t. McLemore, 81 Ala. 308. see Deming v. Williams, 26 Conn. 226. 
 
 As to the power of a married woman < Chapman v. Gray, 8 Ga. 341. 
 
 to charge her separate estate, see 1 5 Reed v. Beazley, 1 Blackf. 97. 
 
 Bishop Mar. Women, § 840 et seq. 6 Button v. Button, 30 Ind. 452. 
 532 
 
CHAP. XXXVII.] UNDER ARTICLES. § 646 
 
 harmlesa from her debts, it was adjudged that a suit might be 
 maintained by the trustee against the husband on the deed.i 
 And in various circumstances this sort of deed will be upheld, 
 where no oppression has been exercised upon the wife and 
 there is no fraud.^ 
 
 § 645. Kentucky. — Where, in this State, husband and wife 
 entered into a written agreement for a separation, the hus- 
 band conveying certain property to the wife without the inter- 
 vention of a trustee, it was held that no suit for a breach of 
 the agreement could be maintained against the husband.^ In 
 another case, on a bill in equity to enforce an agreement for 
 separation against the husband, the court refused to sustain 
 the complaint. Said Robertson, C. J. : " We concur with the 
 chancellor in the opinion, that the contract of separation between 
 [the husband] and his wife should not be enforced by decree, 
 on her bill filed for that purpose ; such contracts being generally 
 inconsistent with public policy, and there being no proof in this 
 case that there was any such cause for the separation as would 
 have authorized a court of equity to decree a divorce, or would 
 have justified a voluntary separation by contract." * Accord- 
 ing to another Kentucky case, when a wife without legal cause 
 abandons her husband, and articles of separation are entered 
 into with a trustee for the wife, in which the husband provides 
 for her as well as the court would compel him to, in considera- 
 tion of which she relinquishes right of dower and distribution 
 in his estate, and the parties continue to act upon this until the 
 husband dies, it is too late for her to complain or seek to 
 repudiate the provision made for her and demand dower and 
 distribution.^ 
 
 § 646. Maryland. — It has been held in this State, that a 
 court of equity will not compel a husband living apart from 
 his wife, under an agreement of separation made without the 
 intervention of trustees, and containing no covenant of indem- 
 nity against the wife's debts, and no provision allowing her to 
 transfer the title to real estate therein set off to her, to consum- 
 
 1 Goddard v. Beebe, 4 Greene, Iowa, See Crostwaight v. Hutchinson, 2 Bibb, 
 
 126. 407. 
 
 'i Kobertson v. Kobertson, 25 Iowa, * McCrocklin v. McCrocklin, 2 B. 
 
 350. Monr. 370. 
 
 ' Simpson o. Simpson, 4 Dana, 140. ' Loud v. Loud, 4 Busli, 453. 
 
 533 
 
§ 647 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 mate, by his deed, a title in lands which she had attempted by 
 her separate deed to convey.^ According to the facts of another 
 case, wherein there was no trustee, there was between a hus- 
 band and his wife an agreement which stated, that the two had 
 separated, and that a certain fund, which stood in the name of 
 a third person as a deposit for the wife in a savings bank, was 
 claimed by both parties, therefore, to settle the dispute, the 
 matter was arranged in a way pointed out. After the death of 
 both parties, it was held that the agreement was to be deemed 
 to have been binding, at least on the husband ; and the wife 
 having continued to take advantage of it after his death, and 
 thereby ratified it, her representatives were bound by it also.^ 
 And there are other Maryland cases in which effect has been 
 given, under differing circumstances, to agreements of separa- 
 tion.^ 
 
 § 646 a. Massachuaetts. — In this State, a husband and his 
 wife separated, and the former gave to the wife's father a bond, 
 taking- back another in turn. Provision was made for the cus- 
 tody of the children and the division of the property of the 
 parties. Arbitrators were to determine " what allowance shall 
 be made and paid by the said Willard to the said Alice by way 
 of alimony for her support and maintenance during the exist- 
 ence of the coverture between them ; " and the arbitrators 
 decided that he should pay her " fifteen dollars quarterly as 
 long as the decision of the arbitrators should remain," to be 
 used for the support of herself and daughters, " or otherwise as 
 if she were a. feme sole." The wife having died, leaving arrears 
 unpaid by the husband, the court decided, that this quarterly 
 sum was not to be viewed as in the nature of technical " ali- 
 mony," or of pin-money, but as separate estate ; consequently, 
 she having disposed of all her property otherwise than to her 
 husband, as she was authorized by the agreement to do, the 
 husband was liable to her representatives for the arrears.* 
 
 § 647. Mississippi. — An agreement of separation between a 
 husband and wife, without the intervention of a trustee, has 
 been held in this State to be void for every purpose.^ Thus 
 
 1 Lippy V. Masonheimer, 9 Md. 310. Helms «. Franciscus, 2 Bland, 644 ; 
 
 2 McCubbin «. Patterson, 16 Md. Hutcbins v. Dixon, 11 Md. 29. 
 
 179. 1 Holbrookt). Comstock, 16 Gray, 109. 
 
 3 Brown v. Brown, 5 Gill, 249 ; s Carter v. Carter, 14 Sm. & M. 59 ■ 
 
 634 
 
CHAP. XXXVII.j UNDER ARTICLES. § 648 
 
 in one case of this sort it was observed : " The court [below] 
 erred in permitting the agreement to live separate to go to the 
 jury. Such agreements have no validity. It is true, that both 
 courts of equity and courts of law have gone so far to enforce 
 contracts for separate maintenance as to compel payment of the 
 sum agreed on ; but this is not on the ground that the agree- 
 ment to live apart is binding, or tended to dissolve the mar- 
 riage. They can have no such effect. Such agreements, when 
 made through a trustee, are held to be binding so far as to give 
 the reniedies provided by the agreement. This agreement was 
 not through a trustee." ' In a later case, the same doctrine 
 was confirmed ; and it was held, that, if there is a trustee, still 
 the wife's personal covenant running to the husband and trustee 
 does not bind her. Consequently if in this way she relinquishes 
 all claim to her husband's property, she is not thereby barred 
 of her dower. Said Ellett, J. : "An agreement of this character, 
 made between the husband and wife alone, is void, on account 
 of the incapacity of the wife to bind herself by contract, or to 
 take any thing by deed or contract directly from her husband. 
 Agreements of separation between husband and wife are only 
 valid when made through the agency of a trustee acting for 
 the wife. The husband will in such cases be bound by his 
 covenants or conveyances to the trustee, for the benefit of his 
 wife, and the trustee will be bound by any covenants entered 
 into by him, on the part of the wife, to indemnify the husband 
 against liability for her support, or for her debts, and against 
 her claims on his property. A married woman, as a general 
 rule, can make no contract. She cannot be estopped by her 
 covenant, nor bound by her deed of conveyance. The excep- 
 tions to this rule must be created by positive law. Thus by 
 our statutes, a married woman may purchase property with her 
 own money, and may make certain contracts, binding on her 
 separate estate, for her support, or the support, management, 
 and improvement of such separate property." 
 
 § 648. Missouri. — In one case in this State, the very famil- 
 
 Tourney v. Sinclair, 3 How. Missis. l Toumey v. Sinclair, supra, p. 326, 
 324. See, however. Wells v. Tread- 327, opinion by Sharkey, C. J. 
 well, 28 Missis. 717. 2 Stephenson v. Osborne, 41 Missis. 
 
 119, 124, 125. 
 
 535 
 
§ 650 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 iar doctriue everywhere received was laid down, that arti- 
 cles of separation are no bar to a suit for divorce, if, as in the 
 case under consideration, one of the parties after the execu- 
 tion of such articles commits adultery.^ The court in another 
 case decided, that a slave conveyed to a married woman after 
 a mutual separation cannot be held in prejudice of the hus- 
 band's rights, the separation not being authorized by law.^ It 
 was observed in an equity suit in this State, involving the like 
 principle : " The articles of separation were entered into, if 
 not against the express provisions of both the civil and com- 
 mon law, at least without the sanction of either, and against 
 what this court is pleased to consider the soundest principles 
 of morality and of social policy. And though the English 
 Courts of Chancery have, of late, gone great lengths in lending 
 their aid to the execution of such contracts, we feel no dispo- 
 sition to follow their example at present ; and sincerely hope, 
 that the time is far distant when the condition of society may 
 make it proper for American courts to do so." ^ 
 
 § 649. New Jersey. — According to a decision in this State, 
 if a husband by articles of separation places money in the 
 liands of trustees for " the sole and separate use of the wife, 
 and to be subject to her sole order and disposition ; " but the 
 trustees do not sign the articles, in consequence of which 
 omission they become wholly inoperative as an agreement ; yet, 
 if the wife upon the faith of these articles lives apart from her 
 husband, and at her death makes a testamentary disposition 
 of tlie money, her administrator may recover it of the trustees, 
 and her husband will not be entitled to it.* In another case 
 the English doctrine seems to be recognized, that, if the allow- 
 ance made to a wife in a deed of separation is not paid, a person 
 furnishing her with necessaries can recover the price of them 
 of the husband.^ 
 
 § 650. New York. — There are more cases on this subject in 
 New York than in any other State of our Union. These cases 
 
 1 Stokes V. Stokes, 1 Misso. 324. « Emery v. Neighbour, 2 Halst. 142. 
 
 2 Chouteau v. Donchouquette, 1 ^ Miller v. Miller, Saxton, 386, 394. 
 Misso. 669. See ante, § 580. 
 
 ' Gonsolisu. Donchouquette,! Misso. 
 666, 668, opinion by Wash, 3. 
 
 536 
 
CHAP. XXXVII.] UNDER ARTICLES. § 651 
 
 recognize the general doctrine of tlie validity, in the sense 
 already explained, of deeds of separation entered into through 
 the intervention of trustees ; ^ but, for the deed to be valid, 
 the separation contemplated must be an immediate and not a 
 future one.2 In general it may be said, that an agreement 
 between husband and wife to live separate is an illegal agree- 
 ment ; 8 it is no bar to a divorce ; * yet collateral undertakings, 
 — as, for instance, the undertaking to support the wife, — 
 though accompanied by the mutual promise to live separate, 
 may bind the husband.^ Evidently, in these cases as any other, 
 an executory agreement, to lay the foundation for a suit, must 
 be based on a sufficient consideration ; but, where a husband 
 conveys property to a trustee for his wife's separate use, and 
 the trustee is put in possession, this executed transaction is 
 valid, viewed as a mere gift.^ In one case it was held, that a 
 release by the husband, in an action of slander commenced by 
 the wife, in the name of husband and wife, is effectual, though 
 the husband and wife are living apart under articles made 
 through the intervention of a trustee, and the husband stipu- 
 lates in the articles not to interfere with her, and to permit 
 her to prosecute suits in this way.'' If the parties come 
 together after a separation under articles, this puts an end to 
 the articles, and the subsequent abandonment of the wife by 
 the husband does not revive them.^ 
 
 § 651. North Carolina. — Where, in this State, a wife was 
 separated from her husband ; and it was agreed between the 
 husband and the brother of the wife, that, for a valuable 
 consideration mentioned, the husband should deliver to this 
 brother three negroes for the sole and separate use of the 
 wife, and the negroes were accordingly delivered, then the 
 
 1 Heyer v. Burger, Hoflfman, 1 ; 22 Barb. 97 ; Cropsey v. McKinney, 30 
 Carson v. Murray, 3 Paige, 483 ; Wal- Barb. 47. And see Simmons v. McEl- 
 lace V. Bassett, 41 Barb. 92. wain, 26 Barb. 419. 
 
 2 Florentine v. Wilson, Hill & Denio, « Griffin v. Banks, 37 N. Y. 621. 
 303 ; Calkins v. Long, 22 Barb. 97. ' Beach v. Beach, 2 Hill, N. Y. 260. 
 
 3 Rogers v. Rogers, 4 Paige, 516. * Shelthar v. Gregory, 2 Wend. 222. 
 < lb. ; Anderson v. Anderson, 1 Edw. And see Heyer v. Burger, supra; Car- 
 
 Ch. 380. son v. Murraj', 3 Paige, 483. See also 
 
 5 Champlin v. Champlin, Hoffman, on the general question of these arti- 
 
 55 ; Anderson v. Anderson, supra; Fen- cies, Mercein v. People, 25 Wend. 64; 
 
 ner v. Lewis, 10 Johns. 38 ; Heyer v. People v. Mercein, 3 Hill, N. Y. 399. 
 
 Burger, HofEman, 1 ; Calkins v. Long, 
 
 537 
 
§ 653 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 wife became reconciled to her husband, — the court held this 
 brother to be still, as respects these negroes, the trustee of the 
 wife, under the duty to account to her for them, as for her 
 sole and separate use, yet with the right to be reimbursed for 
 such sums as he had advanced to her.^ 
 
 § 652. Ohio. — Articles providing for an immediate and 
 present separation were held in this State not to be void as 
 against public policy.^ 
 
 § 653. Pennsylvania. — Where, in this State, a husband by 
 articles of separation stipulated with trustees, that his wife 
 " should have all the rights of a feme sole, wholly freed and 
 discharged from his power, restraint, and authority," in con- 
 sideration, among other things, that the trustees should 
 indemnify him against all future liabilities ; in pursuance of 
 which agreement the wife, by her unaided labor of twenty- 
 five years, accumulated some personal estate, which she 
 bequeathed by will ; and, after her decease, the husband con- 
 sented to the admission of the will to probate ; and on his 
 death his executors claimed the balance of her personal 
 estate against the legatees under her will ; this will of the 
 wife was held to be valid, and her personal estate was ordered 
 to be distributed according to its directions.^ There are, in 
 this State, some other cases wherein the effect of articles of 
 separation upon property rights is considered.* In one of them 
 it was observed : " It seems to be settled, that chancery will 
 not execute an agreement between husband and wife to live 
 separate; because that would impair the marital rights of 
 the husband at the common law, by giving the wife a degree 
 of personal independence which would be inconsistent with 
 her conjugal duties. Nothing will be done in furtherance of 
 even a suspension of the marriage contract ; and a bill to 
 compel the husband to permit the wife to live separate, or 
 pay the stipulated maintenance, would not be entertained." 
 But in the facts of the case, to which these observations 
 
 i Huntly V. Huntly, 6 Ire. Eq. 514. * Lehr v. Beaver, 8 Watts & S. 102 ; 
 
 And for further points see Picket v. Dufify v. The Insurance Co., 8 Watts & 
 
 Johns, 1 Dev. Eq. 123 ; EUiott v. El- S. 413 ; Fisher v. Filbert, 6 Barr, 61 • 
 
 Uott, 1 Dev. & Bat. Eq. 57. Hitner's Appeal, 4 Smith, Pa. 110 ; 
 
 2 Settle V. Wilson, 14 Ohio, 257. Bouslaugh v. Bouslaugli, 17 S. & R. 
 
 ' Wagner's Estate, 2 Ashm. 448. 861. 
 538 
 
CHAP. XXXVII.] UNDER ARTICLES. § 655 
 
 were directed, there was no trustee, and the agreement was 
 merely between husband and wife alone.^ Still it was held, in 
 another case, that, though at law no contract can be effectual 
 between husband and wife without the intervention of trus- 
 tees, yet in equity, if the contract is reasonable, and has been 
 consummated, it may then be sustained. Therefore a prop- 
 erty arrangement, made on separation between the parties, 
 with no trustee, and acted upon during their lives, was held 
 to be binding after the death of one of them. Said Rogers, 
 J. : " The agreement here contemplates an immediate sepa- 
 ration ; it was carried into effect in good faith by the hus- 
 band, has nothing unreasonable in it ; and consequently the 
 wife, after the death of the husband, is not entitled to the 
 aid of the court, in any attempt to violate it."^ Another 
 case holds, that a clause of indemnity to the husband by the 
 trustees, against debts to be contracted by the wife, though 
 usually found in articles of separation, is not essential to their 
 validity.^ 
 
 § 654. South Carolina. — A settlement by a husband upon 
 his wife, on a separation, has been held in this State to be valid 
 against his prior creditors, where the trustee covenants to save 
 him harmless from debts she may contract.* In another case, 
 a husband's bond to his wife's trustee, reciting that he and the 
 wife had agreed to live separate, and conditioned to pay the 
 trustee a certain annual sum for the use of the wife, was held 
 to be good. The court below had admitted parol testimony to 
 show that there had been a separation, and a suit in equity for 
 alimony, and that this bond was given in compromise of that 
 suit. And this was held to be correct.^ 
 
 § 655. Tennessee. — A husband and his wife having agreed 
 in this State to live separate, he conveyed to trustees one third 
 of his property in trust for her separate maintenance. The 
 trustees covenanted, that she should not claim any more of his 
 estate ; and, if she did, and obtained it, they would indemnify 
 
 1 McKennan v. Phillips, 6 Whart. Kelly, 10 Casey, 84; Dillinger's Ap- 
 571, opinion by Gibson, C. J. See ante, peal, 11 Casey, 357. 
 
 § 647. 3 Smith v. Knowles, 2 Grant, 413. 
 
 2 Hutton u. Button, 3 Barr, 100. * Hargroves u. Meray, 2 HUl Ch. 
 And see, for analogous points, Walsh v. 222. 
 
 5 Buckner v. Euth, 13 Rich. 157. 
 
 539 
 
§ 656 SEPARATIONS WITHOUT SENTENCE. [BOOK V. 
 
 him and his legal representatives. It was held, after the death 
 of the husband, that this transaction did not bar the wife of her 
 dower and distributive share ; yet that she could not claim 
 these, and at the same time claim the benefit of the settlement 
 for her separate maintenance, but she must elect which she 
 would hold ; that the filing of a bill for dower and the distrib- 
 utive share was an election to take them and abandon the set- 
 tlement ; and that she was accountable for the trust property 
 expended by her after her husband's death, but not for what 
 was used before. It was also observed: "The trustees have 
 no control of Mrs. Watkins's [the wife's] acts, yet the court 
 will see them , secured from injury, precedent to affording the 
 relief prayed, so that they may not be subject to the suit of Dr. 
 Watkins's representatives, by force of the decree and process of 
 the court." ^ 
 
 § 656. General Views — Conclusion. — The foregoing digest 
 of points decided in the courts of our several States will show, 
 that, on the one hand, the tribunals of this country accord a 
 certain validity to articles of separation ; and, on the other 
 hand, these articles are limited in ' their effect. Whatever a 
 husband might do, by way of making a settlement upon his 
 wife, if the parties were living together, he may do when, upon 
 an agreement of immediate separation, or after such a separa- 
 tion has taken place, he contemplates a probable continuation 
 of this state of things, and desires, either from a good or an 
 evil motive, not to see his wife left destitute. And there is no 
 distinct authority for saying, that our American courts will go 
 an inch further than this, in upholding these separations. If 
 an attempt should be made to carry an American tribunal 
 further, it would be an attempt, without any clear American 
 precedent, to accomplish an object contrary to the whole spirit 
 and policy of our jurisprudence. 
 
 1 Watkins v. Watkins, 7 Yerg. 283, see Parham v. Parham, 6 Humph 287 ; 
 294, 295, opinion by Catron, C. J. And Goodrich v. Bryant, 5 Sneed, 325. 
 
 540 
 
CHAP. XXXVIII.] LEGISLATIVE MARRIAGES. § 658 
 
 BOOK VL 
 
 LEGISLATIVE MARRIAGES AND DIVORCES. 
 
 CHAPTER XXXVIII. 
 
 LEGISLATIVE MARRIAGES. 
 
 § 657. General Doctrine. — In the earlier parts of this volume^ 
 we saw, that it has never been anywhere the custom of legisla- 
 tion to impose upon parties the status of marriage without their 
 consent. Prom this proposition it might seem, at the first im- 
 pression, to follow, that there is no such thing practically known 
 as a legislative marriage. Yet in truth there are legislative 
 marriages, the same as there are legislative divorces ; and the 
 latter are no more than the former granted, in practice, with- 
 out the consent of at least one of the parties. Still, a legisla- 
 tive marriage is not, in the facts of cases, such in the fullest 
 sense of the expression ; it consists merely in removing some 
 legal obstacle whereby the consent of the parties, which the law 
 in all cases recognizes as the essence of matrimony, was pre- 
 vented from working its appropriate and wished-for result. 
 
 § 658. Ulustrationa of the Doctrine — Constitutional Questions. 
 — It is obvious that there may be circumstances in which this 
 kind of legislation is highly beneficial. Thus, if a statute 
 renders it essential to the validity of marriages that they be 
 celebrated by a particular official person, and, after a marriage 
 has been in good faith celebrated, some defect in the official 
 qualifications of the celebrator is discovered, another stat- 
 ute may very properly remove this defect and declare the 
 marriage good. It promotes public order by carrying out the 
 
 1 Ante, § 3, II, 12, 19, 93-96. 
 
 541 
 
§ 658 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 intent of the parties.^ Where the legislative body is unre- 
 strained by written constitutions, as it is in England, all sorts of 
 enactments of this nature, which the legislature can be induced 
 to make, whether wise or unwise, really accomplish what upon 
 their face they undertake to dp. But in this country, where 
 our State legislatures are uniformly bound by written constitu- 
 tions, there may sometimes a question arise, whether the act of 
 marriage was constitutional. It has been held with us, that a 
 marriage, void for want of legal authority in the person who 
 celebrated it, may be rendered valid by subsequent legislation, 
 though the effect may be to transfer immediately the settlement 
 of a pauper from one town to another ; yet that a town, thus 
 newly charged, cannot be thereby compelled to pay for support 
 furnished the pauper before the passage of the act.^ Also, that 
 a marriage, void because contracted within the prohibited 
 degrees, may be confirmed by a subsequent legislative act. 
 The court in this case observes : " Tlie disability was a statutory 
 one, and is removed by statute. The legislature has power to 
 declare what shall be valid marriages. They can annul mar- 
 riages already existing, a fortiori they can render valid, niar- 
 riages 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." This case 
 contained the element, that the husband and wife had jointly 
 applied to the legislature to have the marriage confirmed. ^ In 
 Massachusetts the following statute was held to be constitu- 
 tional ; and the statute likewise was construed to apply to exist- 
 ing marriages, as well as to marriages afterward celebrated : 
 " 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 
 cannot," 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 
 
 1 Goshen v. Stonington, 4 Conn. 3 Moore ,.. Whittaker, 2 Barring. 
 
 '^^\-a ' -1 T-. v.«,..o^' , ^el. 50. See also Nichols u. Stewart, 
 
 2 Brunswick v. Litchfield, 2 Greenl. 15 Texas, 226. 
 28 ; Lewiston v. North Yarmouth, 5 
 
 Greenl. 66. 
 
 542 
 
CHAP. XXXVIII. J LEGISLATIVE MARRIAGES. § 658 a 
 
 invalid because the magistrate or clergyman, who undertook to 
 marry the parties, had no lawful authority to marry them.''^ 
 
 § 658 a. Constitutional, continued. — It is plain that questions 
 of this kind must depend very much upon the particular terms 
 of tlie constitution of the State in which they arise. Thus we 
 have seen,2 that, in Massachusetts, the guilty party after a 
 divorce is not at liberty to contract another marriage, yet juris- 
 diction is given the court to grant the permission on special 
 application in particular cases. Thereupon it is lield, that, if 
 such a party marries witliout leave of the court, it is not within 
 the legislative power, under the peculiar terms of the constitu- 
 tion of this State, to make the marriage good by special act. 
 Said Chapman, C. J. : " The constitution provides, in part 2, 
 c. 3, art. 5, that' all causes of marriage, divorce, and alimony, 
 and all appeals from the judges of probate, shall 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 petitions for leave to marry again, were, by the 
 general statutes, within the jurisdiction 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 par- 
 ticular 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 law by which they had 
 
 ' Gen. Stats, i;. 107, § 2 ; Goshen v, in 1830. After two years the parties 
 Richmond, 4 Allen, 458, 460. See ante, separated, and he married another 
 § 95 and note, tinder the laws of woman, in the same irregular manner, 
 Texas before her separation from Mex- and lived with her until 1857. It was 
 ico, marriage was legally constituted thereupon held, that the act legalizing 
 only when solemnized by a Catholic Irregular marriage made the latter mar- 
 priest. But a Texas act in 1841 legal- riage legal from its date, but it had no 
 ized irregular marriages, which had effect on the first marriage, because the 
 already taken place, where the parties parties separated before it became le- 
 were living together in the marriage gal. Rice v. Rice, 31 Texas, 174. 
 relation. A man was married in an 2 Ante, § 307 a. 
 irregular manner to a woman in Texas 
 
 543 
 
§ 669 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 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." ^ It is perhaps well to 
 say of this case, that, while- according to the opinion of the 
 court it depends on the peculiar terms of the Constitution of 
 Massachusetts, the result is evolved from the constitution by a 
 sort of reasoning about which, it is believed, judicial opinions 
 might be expected to differ. To many persons it would seem 
 plain, from the terms of the constitutional provision itself, that ' 
 the jurisdiction which was originally in the governor and coun- 
 cil, and was afterward transferred by statutes to the courts, 
 was the judicial authority, and not the legislative, which stijl 
 remains in the legislature. Indeed, this has always been the 
 practical construction of the provision ; for, after the jurisdic- 
 tion was given to the courts, the legislative body still contin- 
 ued to legislate on the same subjects, 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 a legislative 
 function to confirm a marriage in the circumstances under 
 consideration ? In this view, the resolution of the question 
 must depend on other parts of the constitution. 
 
 § 659. Conclusion. — The reader will find in the next chapter 
 some discussions which will shed light on the subject of this 
 chapter. But upon principle, under the constitutions of our 
 States generally, there can hardly be doubt of the legislative 
 power to confirm defective marriages, in all cases where the 
 parties in fact consented together to be husband and wife, what- 
 ever legal impediment might have existed whereby the consent 
 was prevented from having its desired effect. Yet such con- 
 firmation of the marriage would not generally operate to prej- 
 udice intervening rights of third persons. 
 
 1 White V. White, 105 Mass. 325, 327. 
 544 
 
CHAP. XXXIX.J LEGISLATIVE DIVORCES. § 660 
 
 CHAPTER XXXIX. 
 
 LEGISLATIVE DIVORCES. 
 
 660. Introduction. 
 661-664. General View of the Subject. 
 
 665-669. Whether Legislative Divorces impair Obligation of Contracts. 
 670-679. Whether they are Retrospective Laws. 
 680-686. Whether they are an Exercise of Judicial Power. 
 687-692 a. Special Principles and direct Constitutional Inhibitions. 
 693-695. How this Divorce limited in its Effect. 
 
 § 660. General View — Scope of the Chapter — How divided. 
 — The subject of legislative divorces is becoming daily of less 
 and less practical interest in the United States, in consequence 
 of the continually increasing jurisdiction given to the courts 
 of the several States to dissolve the matrimonial connection, 
 and of provisions which are rapidly working themselves into 
 our revised constitutions, prohibitive of divorces by the legis- 
 lature. Still, as the topic is not obsolete, it must receive in 
 these volumes such attention as its intrinsic importance 
 demands. And unfortunately the subject is not one which 
 can be passed over by a mere citation of authorities, or a naked 
 collection of points. In the first edition of this work, prepared 
 at a time when this subject was of much greater practical 
 importance than now, the attention of the reader was called to 
 many illustrative doctrines, sustained by decisions in causes 
 not matrimonial. It is deemed best, in this edition, not to 
 omit the illustrations thus brought forward, yet, on the other 
 hand, not to expand them, or to add any exhaustive citation 
 of the late authorities. The later cases relating directly to 
 the divorce will, of course, be added. The discussion will be 
 divided as follows : I. A General View of the Subject ; II. 
 Whether Legislative Divorces impair the Obligation of Con- 
 tracts ; III. Whether they are Retrospective Laws ; IV. 
 Wliether they are an Exercise of the Judicial Power ; V. Some 
 Special Principles and direct Constitutional Inhibitions ; VI. 
 How the Divorce is limited in its Effect. 
 
 TOL. I. 35 546 
 
§661 
 
 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 I. A General View of the Subject. 
 
 § 661. How formerly in England — Parliamentary Divorce. — 
 We shall see, further on,i that anciently, in England, judicial 
 divorces for adultery were probably from the bond of matri- 
 mony. At least, such is a common opinion, though not 
 universally accepted. But, if this is so, still, in 1601, a con- 
 trary rule was in the Court of Star Chamber established, by 
 Whitgift, Archbishop of Canterbury, assisted by' other eminent 
 divines and civilians ; ^ since which time, if not from an earlier 
 
 1 Post, § 705. 
 
 2 Foljambe's Case, 3 Salk. 138, 
 ■where the decision is through mistake 
 attributed to Archbishop Bancroft ; Sir 
 F. Moore, 683 ; Noy, 100. See 1 Law 
 Review, 353, 361. In 1869 Dr. Wool- 
 sey published an "Essay on Divorce 
 and Divorce Legislation," not strictly 
 a legal work, but one not without in- 
 terest to the lawyer. At p. 289 he has 
 a note on Foljambe's Case, wliich, if 
 the author were a lawyer, would be a 
 little remarkable. Dr. Wharton, in 
 his Confl. Laws, § 204, note, adopts 
 what "President Woolsey shows" 
 without apparently giving the subject 
 any thought of his own. I had col- 
 lected the material for writing a note 
 here correcting a great deal of misap- 
 prehension; but, on reflection, I do 
 not deem the matter of sufficient im- 
 portance to justify occupying space 
 with it, except to make an explanation 
 or two. It is said that the reports 
 of Foljambe's Case by Salkeld and by 
 Moore differ. I do not see that they 
 do in substance and effect, though the 
 form of words is not the same, and 
 Salkeld's is very brief. Salkeld states, 
 not as a part of the report of Foljambe's 
 Case, but of Jiimself, what was the an- 
 cient law, and refers to authorities to 
 support the statement. Of course, no 
 lawyer would understand him to be 
 stating on this point a resolution of the 
 court, even if it did not appear, as it 
 does, on the face of what he says, that 
 lie was not; for every lawyer knows 
 that courts sit to settle present law, 
 not past. But when we come to what 
 
 546 
 
 is set down as the resolution of the 
 court, the two reports, including also 
 that in Noy, are alike in substance and 
 real meaning. The substance is, that 
 a second marriage, after a divorce for 
 adultery, was held to be void, — whether 
 it was void or not was the point in issue, 
 and that it was void was the point de- 
 cided. In the early times of our law, 
 the forms of language as respects the 
 distinction between partial and full di- 
 vorces, if indeed there was at first any 
 such distinction, were not as well set- 
 tled as now, and this must be borne in 
 mind when considering the different 
 reports in this case. I am not sure 
 that there was anciently any form of 
 language 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 
 bond of the marriage. It would rather 
 seem that at the very early period a 
 divorce was a divorce, and it sundered 
 the marriage bond, that gradually the 
 ecclesiastical powers forbade remar- 
 riage 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 properly 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. 
 Speaking of the action to recover 
 dower he says : " K several women, all 
 
CHAP. XXXIX.] 
 
 LEGISLATIVE DIVORCES. 
 
 §662 
 
 period, the divorce was uniformly, down to tlie passing of tlie 
 new statute, wliicli went into effect in 1858,' from bed and 
 board. The Reformation brought with it the doctrine, that the 
 commission of adultery, if not other offences, entitled the 
 injured party to be freed from the vinculum of the marriage. 
 We have seen how the attempt to reform the matrimonial law 
 failed.2 Hence arose the practice of applying to Parliament 
 for a special act of divorce. 
 
 § 662. Parliamentary Divorce, continued. — The first applica- 
 tion of this sort, it is said, was by Lord de Roos, in 1669. He 
 procured in the spiritual court a sentence of separation a 
 mensa et thoro on the ground of the adultery of Lady de Roos, 
 and then presented his prayer to Parliament to have the mar- 
 riage dissolved. After much opposition, but with the powerful 
 aid of Bishop Cozens, the divorce was obtained.^ The next 
 
 living at the same time, are united to 
 one man, yet none of them but the 
 first is in law his wife ; the others be- 
 ing so in fact and wrongfully. Again, 
 although she was his lawful wife, yet 
 the tenant may say that she ought 
 not to have dower by the rule of law 
 which says that the marriage subsist- 
 ing action of dower remains, but the 
 marriage failing the action is extinct, 
 and a divorce was pronounced between 
 her and her husband, whereby the mar- 
 riage ceased, and consequently her ac- 
 tion 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 hut 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 weU known that the third 
 volume of Salkeld, unlike the other 
 two, was a posthumous publication; 
 and, as printed, has its little inaccu- 
 racies. I think there is here some in- 
 accuracy in his figures referring to the 
 Year Books ; for I do not find in thera 
 the place to which the figures point. 
 His references to Bracton and to Glan- 
 ville 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 dissolve the bond of 
 the marriage. Thus, GlanviUe says : 
 "If the wife should, in the lifetime of 
 her husband, be separated from him on 
 account of her incontinence [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, 
 dissolved 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. To say, therefore, that 
 various writers have been " misled " 
 by Salkeld, whose report of Foljambe's 
 Case they have accepted as correct 
 when it is not, is simply absurd. But 
 whatever may be the truth on the 
 point, it has no other interest than 
 historical, consequently I drop the dis- 
 cussion. 
 
 1 Ante, § 65. 
 
 2 Ante, § 30. 
 
 3 Hosack Confl. Laws, 255; Mac- 
 queen H. L. Pract. 471, 551. On the 
 latter page is a report of Lord Roos's 
 Case, and the bishop's argument. In 
 form, the bill of divorce merely granted 
 
 647 
 
§ 663 LEGISLATIVE MARRIAGES AND DIVORCES. [bOOK VI. 
 
 two parliamentary divorces occurred just before the close of 
 the same century, on similar grounds, on the applications of 
 the Duke of Norfolk and of the Earl of Macclesfield respec- 
 tively ; and these three cases appear to have established the 
 legislative practice for succeeding ones.^ The remedy was 
 given, almost as of course, to the husband, whenever he 
 applied; but not to the wife, except under special circum- 
 stances. Of the causes of parliamentary divorce, Macqueen 
 says : " On a retrospect of one hundred and seventy years, 
 since the establishment of the system of parliamentary divorce 
 a vinculo, 1 find no case in which that remedy has been 
 awarded or sought, without a charge of adultery. There is no 
 example of a bill of divorce for malicious desertion ; although, 
 in the other Protestant countries of Europe, that offence, 
 properly established, is considered a scriptural ground of 
 
 divorce a vinculo matrimonii It is not undeserving of 
 
 attention that the argument of Bishop Cozens in Lord Eoos's 
 Case was not limited to adultery, but included within its range 
 this crime of malicious desertion, by which, as well as by adul- 
 tery, he appears to have contended that the nuptial bond was 
 rescinded What might be the result of such an appli- 
 cation, sti-ongly supported by evidence of wilful and long- 
 continued desertion and abandonment, must be matter of 
 conjecture, or, at best, of very doubtful speculation ; the 
 discretion of Parliament being unfettered by precedents, and 
 open to a free consideration of the special circumstances of 
 every new case." ^ If the reader compares this with the 
 present divorce law in England,^ he will see that parliamentary 
 divorces must now be practically abolished. 
 
 § 663. Right of Legislative Divorce as Common Law with us 
 — American Practice. — Prom England was imported into most 
 of our States the practice, which prevailed more in earlier 
 times than now, of granting legislative divorces in meritorious 
 
 liberty to marry again ; wlience it has would not enter into a second marriage. 
 
 been inferred, that the ecclesiastical 1 Law Review, 362, 363. 
 
 divorce was deemed a dissolution of the l Hosack ut supra ; Macqueen H. L. 
 
 marriage, and the act of Parliament was Pract. 473. 
 
 resorted to merely to get rid of the 2 Macqueen H. L. Pract. 473, 474. 
 
 bond .; required by the ecclesiastical 3 Ante, § 65, note. 
 
 court that the applicant for the divorce 
 
 548 
 
CHAP. XXXIX.] LEGISLATIVE DIVORCES. § 664 
 
 cases not reached by the general law. In some instances, 
 indeed, though rarely, the legislatures have seemed to exercise 
 a sort of concurrent jurisdiction with the courts. These special 
 divorces are usually from the bond of matrimony, sometimes 
 from bed and board,i and sometimes they are in the nature of 
 a sentence of nullity. Generally the English practice is 
 adopted, of passing, though with less accompanying formality 
 than formerly in England, an act operating directly on the 
 marriage ; but occasionally the method has been to empower 
 one of the judicial tribunals to investigate the cause alleged, 
 and grant the divorce if the complaint is sustained. This, 
 indeed, is the practice always resorted to in some of the 
 States.2 
 
 § 664. Continued — General Doctrine. — Tlie right of the 
 English Parliament to dissolve marriages in this way is entirely 
 clear ; and from this the argument becomes strong, that the 
 same legislative right exists also in the United States. It 
 is conclusive of every question except the great one ; namely, 
 whether the authority is not restrained, in this country, by con- 
 stitutional provisions. As legislative divorces are coming into 
 disrepute,"'' and judicial ones are more favored, the people of a 
 considerable number of the States have utterly forbidden the 
 former by express clauses in recent revisions of their constitu- 
 tions.* In such States, a legislative divorce would, of course, 
 be a mere nullity. But when there is no express inhibition, 
 the doubt is still sometimes agitated, whether the legislature is 
 not, in effect, debarred by the Constitution either of the United 
 States or of the particular State. This question may present 
 itself somewhat differently in different States ; but, after allow- 
 ing for the differences, the authorities are in such irrecon- 
 cilable conflict that any attempt to liarmonize them would be 
 fruitless. Nor is this surprising ; for some of the points in- 
 volved are really attended witli great intrinsic difificulty. We 
 shall examine them in their order ; and the conclusion to which 
 the examination will conduct us is, that, as a general proposi- 
 
 1 See Young v. Naylor, 1 HiU Eq. 3 1 U. S. Mo. Law Mag. 187. 
 
 383 ; ante, § 26, note. < See Head v. Head, 2 Kelly, 191 ; 
 
 2 Berthelemy v. Johnston, 8 B. Monr. Teft v. Teft, 8 Mich. 67. 
 90 ; LeTins v. Sleator, 2 Greene, Iowa, 
 
 604. 
 
 549 
 
§ 666 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 tion, the several legislatures may, ia the absence of an express 
 constitutional inhibition, dissolve by special act the marriage, 
 yet may not include in the act any collateral matter affecting 
 property rights, such as a direction for the payment of alimony. 
 
 II. Whether Legislative Divorces impair the Obligation of 
 
 Contracts. 
 
 § 665. The Constitutional Provision — 'WTiat ResiUts. — It has 
 been suggested, but not much urged, that legislative divorces 
 are an infringement of the provision of the Constitution of the 
 United States, that " no State shall .... pass any .... law 
 impairing the obligation of contracts" ^ In the Dartmouth Col- 
 lege Case, Mr. Justice Story made use of language, arguendo^ 
 which has been construed into such an intimation ; but, if by 
 any rules of interpretation this idea can be drawn from his 
 words, by the same rules his later and more mature opinion is 
 shown to have been the other way.^ 
 
 § 666. WTiat Results, continued. — The Supreme Court of 
 Florida, however, appears to have taken this view. After 
 stating another ground on which the decision equally rested, 
 Semmes, J., who delivered the opinion in the case, proceeded 
 as follows : " I know no reason why the word ' contract,' as 
 used in the Constitution, should be restricted to those of a 
 pecuniary nature ; and not embrace that of marriage, involv- 
 ing, as it does, considerations of the most interesting character, 
 and vital importance to society, to government, and the con- 
 tracting parties. It is comprehended by the words of the Con- 
 stitution, and there is no rule of construction that would exclude 
 it, in the absence of any thing to show that it is not within its 
 spirit. And what are the obligations of the contract, but the 
 rights and duties which grow out of it ? A legislative act which 
 discharges the duties and destroys the rights acquired, under 
 any contract, must of necessity impair its obligation. A law 
 affecting the remedy does not impair its obligation ; but an act 
 of the legislature dissolving the contract destroys the obliga- 
 tion." •* And in a case of a somewhat earlier date, one of the 
 
 1 U. S. Const, art. 1, § 10, cl. 1. 3 Story Confl. Laws, § 108, note, and 
 
 2 Dartmouth College v. Woodward, § 200. 
 
 4 Wheat. 518, 695. 4 Ponder v. Graham, 4 Tla. 23 
 
 550 
 
CHAP. XXXIX.] LEGISLATIVE DIVORCES, § 668 
 
 judges of the Supreme Court of Missouri delivered an argument 
 to substantially the same effect.^ 
 
 § 667. Continued. — But this provision of the Federal Consti- 
 tution is not generally supposed to have any sort of reference 
 to marriage. The doctrine which has been sufficiently dis- 
 cussed in the earlier parts of this volume, according to which 
 marriage is not a contract but a status,^ settles, if it be re- 
 ceived, the question now under consideration. When the 
 contract to become husband and wife is executed by the par- 
 ties becoming such, then the status assumed stands before the 
 law a thing of legal institution, to be regulated, from time to 
 time, as the public good may direct. Tliere is no contract in 
 the way of such regulation. And in a late opinion of the 
 Supreme Court of the United States, it was observed by Daniel, 
 J., that the contracts designed to be protected by this provision 
 of the Constitution are those " by which perfect rights, certain 
 definite, fixed, private rights of property are vested." ^ If mar- 
 riage were a contract within this provision of the Constitution, 
 the consequence would seem to follow, that nothing could ever 
 be made a ground of divorce which was not such ground when 
 the particular marriage was entered into, — contrary to the 
 universal doctrine, concerning which there is no dispute.* 
 
 § 668. Continued. — In respect to the last point it has indeed 
 been said, that " regulations intended to enforce the obligations 
 of the contract in future impair no vested rights. The contract 
 of marriage, it is well understood, is subject to them, and all 
 persons may avoid their operation by an adlierence to the 
 duties imposed by the contract itself." ^ But the answer to 
 this reasoning, which is correct if marriage be viewed as a 
 status or institution of society, is, that if viewed as a con- 
 
 1 McGirk, •!., in The State u. Fry, statute releasing husbands from liability 
 4 Misso. 120, 184. to pay the antenuptial debts of their 
 
 2 Ante, § 3 et seq. wives, may be constitutionally applied 
 
 3 Butler V. Pennsylvania, 20 How. to marriages which were entered into 
 TJ. S. 402, 416, 3 Am. Law Jour. 385. before the enactment of the statute. 
 See also Stanley v. Stanley, 26 Maine, Fultz v. Fox, 9 B. Monr. 499. 
 
 191 ; Phalen .;. Virginia, 8 How. U. S. * And see Carson v. Carson, 40 
 
 163, 168 ; Cochran v. Van Surlay, 20 Missis. 349 ; Starr v. Hamilton, Deady, 
 
 Wend. 365 ; People v. The Auditor, 1 268 ; Askew v. Durpee, 30 Ga. 173. 
 Scam. 537. It has been held, that a '" Clark v. Clark, 10 N. H. 380, 391. 
 
 551 
 
§ 669 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 tract of like character with other contracts, it is no violation 
 of the agreement entered into to do a thing not then legally 
 prohibited ; and to create a new duty and attach a new penalty 
 is to infringe rights which have accrued under the agreement.^ 
 To this extent, indeed, the reasoning of McGirk, J., in Missouri, 
 seemed to point. " In the case before the court," he said, " I 
 think it has been sliown that by this marriage tlie wife con- 
 tracted and gave to the husband her person and fortune, sub- 
 ject to the action of the law of the land as it then stood. It is 
 a fixed rule in law, that the law relating to a contract is as 
 much a part of the agreement as if it were expressed by the 
 parties." ^ And in the language of Story, " imposing conditions 
 not expressed in the contract, .... however minute or appar- 
 ently immaterial in their effect upon it, impairs its obligation." ^ 
 It is therefore well established, that State insolvent laws, which 
 undertake to discharge, even between citizens of the State, the 
 obligation of contracts made antecedently to their passage, are 
 in violation of this constitutional provision.* But the whole 
 course of judicial decision has been to consider all divorce laws 
 as being properly applicable to marriages contracted previously 
 to their enactment.^ Even in those cases where it has been 
 held that they cannot include antecedent causes of divorce, it 
 has been conceded they can antecedent marriages.*^ 
 
 § 669. Continuea. — It is not strange, therefore, that courts 
 are not ready to yield to a doctrine which in its consequences 
 would overturn established principles, work immense domestic 
 distress, and bastardize multitudes of children. And it is clearly 
 held, and is in spite of the contrary opinions we have alluded 
 to,'^ the settled law, that legislative divorces are not invalid as 
 impairing the obligation of contracts, within the meaning of the 
 Constitution of the United States, whatever otlier objections 
 may be urged against them.^ 
 
 1 See Gains v. Buford, 1 Dana, 481, = Carson v. Carson, 40 Missis. 349. 
 484; Violett v. Violett, 2 Dana, 323, « Clark v. Clai-k, 10 N. H. 380- ante 
 326. §98etseq. 
 
 2 The State v. Fry, 4 Misso. 120, ' Ante, § 666. 
 
 184, 185 ; s. p. Bryson v. Campbell, 12 8 Opinion of the Supreme Judicial 
 
 Misso. 498. Court of Maine, 16 Maine, 481 ; Starr 
 
 3 Story Const. § 1379. v. Pease, 8 Conn. 541 ; Berthelemy v 
 
 4 Story Const. § 1381, 1384. Johnson, 8 B. Monr. 90; HuU v Hull 
 
 552 
 
CHAP. XXXIX.] LEGISLATIVE DIVORCES. § 671 
 
 III. Whether Legislative Divorces are Retrospective Laws. 
 
 § 670. How as to such Laws in GeneraL — Many of tlie State 
 constitutions contain a clause forbidding the legislature to pass 
 any retrospective laws. And where there is no such express 
 clause, they are generally held to be void as opposed to the 
 principles of right inherent in the social compact.^ But where 
 it is just and proper that they be passed, they are valid, unless 
 expressly in contravention of the constitution.^ And the 
 question has been agitated, and variously decided, whether a 
 legislative divorce is a retrospective act within either the 
 general principle or the constitutional inhibition. 
 
 § 671. Continued. — Before we enter upon the direct con- 
 sideration of this topic, it will be necessary to take a view of 
 some of the principles which, in other causes than divorce, 
 have guided the courts in determining whether a particular 
 statute is retrospective or not. Said Richardson, C. J., in a 
 New Hampshire case : "A retrospective law, for tlie decision 
 of civil causes, is a law prescribing the rules by which exist- 
 ing causes are to be decided upon facts existing previous to 
 the making of the law. Indeed, instead of being rules for 
 the decision of future causes, as all laws are in their very 
 essence, retrospective laws for the decision of civil causes are, 
 in their nature, judicial determinations of the rules by which 
 existing causes shall be settled upon existing facts. They 
 may relate to the grounds of tlie action, or the grounds of 
 the defence."^ And it was observed by Judge Story, that, 
 " upon principle, every statute which takes away or impairs 
 vested rights, acquired under existing laws, or creates a new 
 obligation, imposes a new duty, or attaches a new disability, in 
 respect to transactions or considerations already past, must be 
 
 2 Strob. Eq. 174 ; Bingham v. Miller, Kendall v. Dodge, 3 Vt. 360 ; Merrill v. 
 
 17 Ohio, 445, 447 ; Levins v. Sleator, 2 Sherburne, 1 N. H. 199, 213 ; Ham v. 
 
 Greene, Iowa, 604 ; Cabell v. Cabell, 1 McClaws, 1 Bay, 93 ; Story Const. 
 
 Met. Ky. 819; Starr v. Hamilton, § 1399; Bishop First Book, § 88-91. 
 
 Deady, 268; Adams v. Palmer, 51 Butsee Beachu. ■Woodhull,Pet. C. C. 2. 
 Maine, 480. 2 Goshen v. Stonington, 4 Conn. 
 
 1 University v. Williams, 9 Gill & 209. 
 J. 365 ; Ward v. Barnard, 1 Aikens, » Woart v. Winnick, 3 N. H. 473, 
 
 121; Lyman v. Mower, 2 Vt. 617} 477. 
 
 553 
 
§ 673 LEGISLATIVE MARRIAGES AND DITORCES. [BOOK TI. 
 
 deemed retrospective, and this doctrine seems fully supported 
 by authorities." ^ 
 
 § 672. Continued. — But in order to render au act retro- 
 spective within the prohibitory provision we are considering, 
 it must undertake to " impair," in the language of Wood- 
 bury, J., " rights which are vested. Most civil rights are 
 derived from public laws ; and if, before the rights become 
 vested in particular individuals, the convenience of the State 
 produces amendments or repeals of those laws, those individ- 
 uals have no cause of complaint. The power that authorizes 
 or proposes to give may always revoke before an interest is 
 perfected in the donee. Thus the right to prosecute actions 
 in a particular time or manner may perhaps be modified or 
 taken away at any period before the actions are commenced.^ 
 So also may the right of femes covert to dower, at any period 
 before the death of their husbands ; and so the right of the 
 next of kin to a relation's estate, at any period before the rela- 
 tion's death." ^ 
 
 § 673. Continued. — And in the Supreme Court of Tennes- 
 see, there being a provision in the State constitution " that 
 no retrospective law, or law impairing the obligation of con- 
 tracts, shall be made," Hayward, J., thus discourses : " Does 
 it mean all retrospective laws in general, or only some partic- 
 ular description, and, if the latter, of what description ? Not 
 retrospective laws in general ; for then no law could be made 
 for the remuneration of past services, not even the members 
 of assembly, their clerks, and door-keepers, at the end of each 
 session of assembly. Nor could further time be given for the 
 probate and registration of deeds ; of which there never was 
 any doubt, from the first assembly after the formation of the 
 constitution to this day. Such probates and registrations 
 have been sanctioned in a thousand instances by our courts of 
 justice. Nor can it mean, laws made for the preservation 
 and establishment of just rights and titles which have become 
 imperfect and infirm by the non-observance of some legal cere- 
 
 1 Society v. Wheeler, 2 Gallis. 105, 2 Whitman v. Hapgood, 10 Mass. 
 139 ; s. p. Officer v. Young, 5 Yerg. 437, 439. 
 
 S20. 3 Merrill v. Sherburne, 1 N. H. 199, 
 
 214. 
 
 554 
 
CHAP. XXXIX.] LEGISLATIVE DIVORCES. § 675 
 
 mony ; for these laws are not to take away rights, but to con- 
 firm and establish them. 
 
 § 674. Continued. — "Laws," continued the learned judge, 
 " for providing easier modes for proving deeds ; for rewarding 
 past services ; for amending mistakes in grants and deeds ; 
 for giving verdicts in evidence, instead of judgments ; for 
 legalizing marriages made under the Frankland government, 
 administrations under the same government, and judgments 
 and sales under its authority ; and acts of limitation, sus- 
 pended during the time a war lasted, — in such instances the 
 law is retrospective, but not unconstitutional, because not such 
 retrospective law as this article of tlie constitution prohibits. 
 There are some retrospective laws which it does prohibit ; ex 
 post facto laws, for instance, and laws impairing the obligation 
 of contracts ; these are justly prohibited, because they destroy 
 existing rights, not preserve them from destruction. If there 
 be any other such laws, which the constitution prohibits, time 
 and future emergencies will bring them to light ; but to say in 
 general, all retrospective laws are void, is to introduce at one 
 breath all the disorders which have been supposed by the acts 
 before mentioned, and by many others which are not at present 
 particularly remembered ; and to wrest from the legislature a 
 power which has been hitherto exercised to the great benefit 
 of the community, and for which, in various instances, com- 
 plete and perfect justice could not be procured without the use 
 of such laws, — is what the court, in my judgment, have not 
 the right and should not have the wish to do. Whenever a 
 legal right did once exist, and is likely to be lost by some acci- 
 dent, omission, or imperfection, an act of the legislature may 
 be interposed to prevent the loss, and to give stability to the 
 right. In such case, no one is deprived of his property ; but, 
 on the contrary, loss of property is obviated, and just and 
 equitable rights, which conscience sanctions, are preserved." ^ 
 
 § 675. Continued. — In further illustration of the principle, 
 that, within this constitutional inhibition, a law is retrospective 
 or not, according as the rights it assumes to take away are 
 vested or otherwise, — we may observe, that, while the legis- 
 
 1 Bell V. Perkins, Peck, 261, 266, 267. See also Stanley v. Stanley, 62 Maine, 
 191. 
 
 555 
 
§ 676 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 lature can change a statutory period of limitation in respect to 
 causes of action existing and not already barred by lapse of 
 time, or in respect to a lien on an existing judgment ; ^ yet, if 
 the statute has fully run and the lien is extinguisiied, or, if the 
 riglit of action is barred, the extinct right cannot be revived 
 by subsequent legislation.^ So, as marriage does not absolutely 
 vest in the husband the wife's choses in action, but only gives 
 him a qualified title to them, dependent upon his reducing 
 them during the coverture to possession ; a statute may, 
 before such reduction, intervene and hold them to her sole 
 and separate use ; and he will then have no right to the prop- 
 erty on its coming actually into her hands.^ But if it has 
 already vested in him, by a reduction to possession ; or, if he 
 has a vested remainder in her property, of which he has not 
 become actually possessed, — his right cannot be taken away 
 by legislation.* So the legislature may make any special or 
 general law regulating the proceedings in courts for the enforce- 
 ment of causes of action which have already accrued ; but, 
 after a party has obtained judgment, it cannot authorize a new 
 trial or an appeal.^ 
 
 § 676. Continued. — Thus it is seen that our legislatures 
 may materially affect the rights of citizens, without infringing 
 upon the constitutional provision against retrospective enact- 
 ments. " They may so change the law of descents as to cut 
 off all our expectations of inheritance, and confer it upon a 
 single child ; and may deny the power of disposition by will, 
 so as to prevent the bounty of our parents. They may so 
 change the rules of evidence as to make it difficult to establish 
 our rights. They may so limit the time of suit, as, when 
 elapsed, to deny us all remedy to enforce those rights ; and 
 
 1 Miller v. Commonwealth, 5 "Watts 5 guch acts are void, not only be- 
 & S. 488. cause they are retrospective, but be- 
 
 2 Woart «. Winnick, 3 N. H. 473; cause they are an exercise of judicial 
 Holden v. James, 11 Mass. 396 ; Brad- power. Lewis v. Webb, 3 Greenl. 326 • 
 ford u. Brooks, 2 Aikens, 284. Durham v. Lewiston, 4 Greenl. 140; 
 
 3 Clarke v. McCreary, 12 Sm. & M. Bates v. Kimball, 2 D. Chip. 77; Stan- 
 347 ; Price v. Sessions, 3 How. U. S. iford v. Barry, 1 Aikens, 314 ; Merrill 
 624. But see Holmes v. Holmes, 4 v. Sherburne, 1 N. H. 199. But 'see 
 Barb. 295 ; White .;. White, 5 Barb. Calder v. Bull, 3 Dall. 386, which has 
 474. And see ante, § 667, note. been thought, however, not to be incon- 
 
 4 Jackson v. Sublett, 10 B. Monr. sistent with the foregoing authorities. 
 ^^'^' Smith Stat, and Consist. Law, § 365. 
 
 556 
 
CHAP. XXXIX.J LEGISLATIVE DIVORCES. § 678 
 
 yet, ill all these cases and the like, not violate that great 
 fundamental law."^ 
 
 § 677. Continued — Waiving the Right. — So this constitu- 
 tional objection is one which the parties in interest may waive ; ^ 
 and, if they do waive it, the act, passed therefore with their 
 consent, either express or imphed, will be good, even though 
 otherwise it would have been invalid. Thus it is that " all 
 public officers impliedly consent to alterations in the institu- 
 tions in which they officiate, provided the public deem it expe- 
 dient to introduce a change." ^ So that a law creating an 
 office may be repealed before the term of an incumbent has 
 expired, and the repeal determines both the office and the 
 compensation.* For the same reason the State may pass a 
 retrospective act impairing its own rights.^ And a person not 
 interested in the right cannot object that the law is uncon- 
 stitutional, as being retrospective.^ 
 
 § 678. The Doctrine applied to Legislative Divorces. — What- 
 ever view, therefore, we take of marriage, even though we 
 deem it to be in all respects a contract, the legislature is clearly 
 competent'to divorce parties with their consent.^ So it would 
 seem that the consent, instead of being express, may be im- 
 plied ; as by the divorced person ceasing to make any claim 
 to the rights which depend on the marriage, after he is informed 
 of the divorce. Nor could any third person take the objection,^ 
 that the act was passed without the concurrence of the parties. 
 And, said a learned judge in delivering, in a case where no 
 consent was shown, the most elaborate opinion against legis- 
 lative divorces to be found in the books : " I see no reason 
 why this act will not operate, as it declares it shall act, so as 
 to free the parties from the pains and penalties of a second 
 marriage. I see no reason why the legislature may not make 
 the children of the second marriage capable of inheriting to 
 
 1 Edwards v. Pope, 3 Scam. 465, 537 ; Butler v. Pennsylvania, 10 How. 
 469. U. S. 402. 
 
 2 See Dula v. The State, 8 Yerg. 5 Davis v. Dawes, 4 "Watts & S. 401. 
 511 ; Cabell v. Cabell, 1 Met. Ky. 319 ; « Sinclair v. Jackson, 8 Cow. 543 ; 
 1 Bishop Crira. Law, § 657. Coleman v. Carr, Walk. Missis. 258. 
 
 3 Woodbury, J., in Merrill v. Sher- 1 See Berthelemy v. Johnson, 3 B. 
 burne, 1 N. H. 199, 213. Monr. 90. 
 
 i People V. The Auditor, 1 Scam. » Ante, § 677. 
 
 557 
 
§ 678 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 ■whomsoever they choose, in case of intestacy."^ In short, 
 the legislature may clearly, and even without the consent of 
 the parties, enact, that they shall no more be known as hus- 
 band and wife ; that each may take a new matrimonial partner ; 
 that they shall cohabit no more under the former marriage ; 
 or, if they do, that they shall be punished as for adultery and 
 the issue be illegitimate ; and that the issue of the second 
 marriage shall be legitimate. Nothing of this would be a 
 divesting of vested rights, but it would be furnishing rules for 
 future conduct; and what would remain of the vinculum of 
 the marriage would not be worth contending for.^ If a legis- 
 lature should pass such an act wantonly, and without any 
 reason but a wish to injure a citizen ; or, if it should under- 
 take to overturn all marriages by one general statute ; another 
 question might arise, not whether the act was retrospective as 
 divesting vested rights, but whether it was not a violation of 
 the good faith implied in the organization of every constitu- 
 tional government. We conclude, therefore, that a special act 
 dissolving a marriage is not a retrospective law ; and this is 
 the view best sustained by authority.^ 
 
 1 McGirk, J., in The State v. Try, 4 which considers the choses in action 
 Misso. 120, 193. A legislature may dependent on the coverture, and the 
 even alter the status of legitimacy; husband's right to receive them as 
 but this will not divest rights of prop- ceasing with it. And see the observa- 
 erty abready vested. Norman v. Heist, tions of Marshall, C. J., upon this case, 
 5 Watts & S. 171. in Gaines v. Gaines, 9 B. Monr. 295. 
 
 2 See Opinion of the Supreme Judi- It may be observed, that the decision 
 cial Court, 16 Maine, 479, 481. in The State u. Fry, appears to have 
 
 3 Starr v. Pease, 8 Conn. 541 ; Town- produced little effect at home, or else to 
 send o. Griffin, 4 Barring. Del. 440; have been there regarded as settUng 
 Holmes v. Holmes, 4 Barb. 295 ; Ma- nothing as to the vinculum of the mar- 
 guire V. Maguire, 7 Dana, 181 ; Hull v. riage ; for the legislature, at its next ses- 
 Hull, 2 Strob. Eq. 174; West v. West, sion, granted Jifty-Jive special divorce 
 2 Mass. 223 ; Cabell v. Cabell, 1 Met. bills. Page on Div. 58, note. In a later 
 Ky. 319. The case of The State v. Fry, Missouri case, the legislative power to 
 4 Misso. 120, affirmed in Bryson v. undo the vinculum was directly in issue 
 Campbell, 12 MisBo. 498, which appears and the court most distinctly denied 
 to be very strong against the legislative the existence of it. Bryson v. Bryson 
 power of divorce, does in fact only de- 17 Misso. 590. In a still later case, the 
 cide, that the husband, who has not majority of the Missouri court held, on 
 consented to the act, is not by it barred the strength of these decisions, that 
 from recovering the wife's choses in the former territorial legislature did 
 action. This doctrine, assuming the not possess the power of divorce 
 marriage to be dissolved, is indeed con- Chouteau v. Magenis, 28 Misso I87' 
 trary to the general course of authority. In Berthelemy v. Johnson, 3 B. Monr.' 
 
 558 
 
CHAP. XXXIX.] LEGISLATIVE DIVORCES. § 680 
 
 § 679. Continued. — Another very clear, and, it would seem, 
 just view of this question has been taken. It is, that marriage 
 is an institution in which the public is interested ; and that tlie 
 legislature must, therefore, always retain control over it. 
 Vested rights of private property may be transferred from one 
 individual to another, for the public good ; though, in this in- 
 stance, not without compensation.^ So, for the same reason, 
 a marriage, even regarding it as a vested right, may be dis- 
 solved wlien the dissolution of it will be for the public good.^ 
 And the question of compensation could not arise. Still the 
 true view is undoubtedly to consider that the constitutional 
 inhibition of retrospective laws, like the one concerning the 
 obligation of contracts, has nothing whatever to do with ques- 
 tions of status. 
 
 IV. Whether Legislative Divorces are an Exercise of 
 Judicial Power. 
 
 § 680. General Views. — It has been sometimes urged, that 
 legislative divorces are an infringement upon the rights of the 
 judiciary. There is nothing in the Constitution of tlie United 
 States which restrains the legislatures of the States from the 
 exercise of judicial powers.^ But in several of the State con- 
 stitutions there are express prohibitions ; and, in all, " the leg- 
 islative, judicial, and executive functions are vested in different 
 functionaries ; and it would seem to follow that the powers 
 thus specially given should be exercised under tlieir appropriate 
 limitations."* And the question has been considerably agi- 
 tated, whether the granting of divorces is not a judicial act, 
 which can only be performed by the judiciary. Chancellor Kent 
 has said : " 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 judi- 
 
 90, it is left undecided, " whether the 440 ; Holmes v. Holmes, 4 Barb. 295, 
 
 legislature could constitutionally dis- 301. 
 
 solve the marriage without the consent ^ gatterlee v. Matthewson, 2 Pet. 
 
 of hoth parties to it, and without any 413. 
 
 breach of the contract." * McLean, J., in Watkins v. Holman, 
 
 1 Beekman v. Saratoga and Shenec- 16 Pet. 25, 60. And see the observations 
 tady RaUroad, 3 Paige, 45. of Harrington, J., in Townsend v. Grif- 
 
 2 Maguire v. Maguire, 7 Dana, 181 ; fin, 4 Harring. Del. 440. 
 
 Townsend v. Griffin, 4 Harring. Del. 
 
 559 
 
682 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK TI.' 
 
 cial tribunals, under the limitations to be prescribed by law." ^ 
 But this learned person has nowhere expressed the opinion, 
 that a divorce may not be valid as an exercise of legislative 
 power. What therefore is a legislative, and what a judicial 
 function within the meaning of this constitutional inhibition ? 
 And is the dissolution of marriage the one, or the other, or 
 both ? 
 
 § 681. Legislati-B;e and Judicial Functions distinguished — How 
 as to Divorce. — " In some cases," observes McLean, J., "it is 
 difficult to draw the line that shall show with precision the 
 limitation of powers, under our form of government. The 
 executive, in acting upon claims for services rendered, may be 
 said to exercise, if not in form, in substance, a judicial power. 
 And so a court, in the use of a discretion essential to its exist- 
 ence, by the adoption of rules or otherwise, may be said to leg- 
 islate. A legislature, too, in providing for the payment of a 
 claim, exercises a power in its nature judicial ; but this is 
 coupled with the paramount and remedial power." ^ A.nd there 
 are functions which may be employed at pleasure either by the 
 courts or the legislature. Thus it is evident that the same 
 rules of procedure which the judicial tribunals are competent 
 to make for themselves, may be made, instead, by the legisla- 
 ture.3 Thus, too, the legislature may license the sale of the 
 real estate of minors, notwithstanding it has delegated the same 
 authority to the courts.'* Therefore, upon principle, there 
 would seem to be no reason why the granting of a divorce 
 should not be either a legislative or a judicial act, — legislative, 
 when it is performed as a mere exercise of sound discretion 
 for the good of the parties and of the public, in which case 
 vested rights could not be divested, but only the parties' social 
 relation, or status, for the future ascertained and established ; 
 judicial, when it is demanded as a right, under established 
 laws, in consequence of some breach of duty committed by the 
 offending party. 
 
 §682. Continued — Divorce Either. — But, to continue the 
 inquiry as to the distinction between a legislative and judicial 
 
 1 2 Kent Com. 106. 3 See ante, § 78-86. 
 
 2 Watkins!;. Holman, 16 Pet. 25, 60. .« Rice v. Parkman, 16 Mass. 326; 
 See also Miner's Bank v. United States, Watkins v. Holman, supra. See also 
 1 Greene, Iowa, 553. Cochran v. Van Surlay, 20 Wend. 365 
 
 560 
 
CHAP. XXXIX.] LEGISLATIVE DIVORCES. § 683 
 
 function, in a New Hampshire case, Woodbury, J., observed : 
 " A marked difference exists between the employments of judi- 
 cial and legislative tribunals." The former decide upon the 
 legality of claims and conduct ; the latter make rules, upon 
 which, in connection with the constitution, those decisions 
 should be founded. It is the province of judges to determine 
 what is the law upon existing cases. In fine, the law is applied 
 by the one, and made by the other. To do the first, therefore, 
 to compare the claims of parties with the laws of the land be- 
 fore established, is in its nature a judicial act. But to do the 
 last, to pass new rules for the regulation of new controversies, 
 is in its nature a legislative act ; and, if these rules interfere 
 with the past or the present, and do not look wholly to the 
 future, they violate the definition of a law, as a rule of civil 
 conduct; because no rule of conduct can, with consistency, 
 operate upon what occurred before the rule itself was promul- 
 gated." 1 Perhaps, therefore, if we were to attempt a defini- 
 tion, it would be, that a judicial act is the determination of the 
 rights of parties, by the application of those rules of law which 
 the court finds to be in actual existence, to facts wliich are 
 either admitted or proved ; while a legislative is the establish- 
 ment of a new rule for the future. This new rule may be 
 made applicable either to one or more particular individuals 
 alone, in which case it is termed. a special act; or to the entire 
 community, when it is denominated a general statute.''' And 
 here again we may observe, that, if this distinction be adopted, 
 the granting of a divorce, so far as it operates to change the 
 status of the parties, may be either legislative or judicial. 
 
 §683. Divorce Statute Special. — The fact that tlie Statute 
 is special, instead of general, cannot alter the question ; for 
 
 1 Merrill v. Sherburne, 1 N. H. 199 ; lar result, without any determination 
 s. p. Jones V. Perry, 10 Yerg. 59, 69. of the fact of the existence of that 
 
 2 The distinction is thus stated by which secures to a party a right to the 
 Smith : " If an act of the legislature in fruits of the act ; such an act is not lia- 
 terms judicially determines a question He to this constitutional objection." 
 ofrightorof property, as the basis upon Smith Stat. & Const. Law, § 347. 
 which the act is founded, so far the act Again : " Where a legislative act does 
 must be regarded as a judicial act, and not in any manner determine any mat- 
 repugnant to the constitution. But if ter of fact or of right dependent upon 
 the act simply authorizes the doing of- matters of fact, such an act is not liable 
 an act with the view of attaining a, to the objection, that it is the exercise 
 given end, or accomplishing a particu- of judicial powers." lb. § 351. 
 
 VOL. I. 36 661 
 
§ 684 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 the number of persons upon whom ifc is to operate is imma- 
 terial.^ 
 
 § 684. Distinction how, in Maine — Iowa. — The judges of 
 Maine have taken of this subject a view which is somewhat 
 novel. It is substantially, that, the source of all power being 
 in the legislature as the representative of the people, every 
 function is legislative until made judicial by legislative enact- 
 ment. But when legislation has vested a jurisdiction in the 
 courts, then all matters committed to them become judicial, 
 and they cannot be concurrently acted upon by the legislature. 
 There is no other mode, it was said, of ascertaining what 
 subjects do properly belong to the legislative, and what to the 
 judicial department. " Men's judgments may greatly differ 
 respecting what questions are, in their own nature, essentially 
 judicial. One of the principal objects of the provision for the 
 division of power, doubtless, was to avoid the danger and mis- 
 chief of a conflicting exercise of power upon the same subject. 
 By the proposed construction this can never take place 
 between the legislative and judicial powers, in those cases 
 over which the judicial power by law has no jurisdiction, 
 although they may be apparently proper for judicial decision. 
 To declare that all questions apparently more fit for the exer- 
 cise of judicial than legislative power were included within 
 the judicial power, would be, therefore, to extend that power 
 by construction beyond what is necessary to avoid the mis- 
 chiefs to be apprehended from a conflict of power. And it 
 would leave the judicial power so vague and undefined as to 
 afford frequent occasion for those very conflicts and miscliiefs 
 which it was the intention to avoid. It may be objected to 
 this construction, that it would permit the legislature, by 
 refusing to pass any law giving to the judicial power cogni- 
 zance of any class of contracts or questions, to usurp the whole 
 judicial power, and to tiecide upon all contracts and questions 
 arising between party and party. It is not to be presumed 
 that it would refuse to perform its duty, and so violate the 
 Constitution as to annihilate, for all practical purposes, one 
 
 1 Edwards v. Pope, 3 Scam. 465, Commonwealth v. Worcester, 3 Pick. 
 469 ; "Watkins v. Holman, 16 Pet. 25, 462, 478. 
 69 ; Norman «. Heist, 5 Watts & S. 171 ; 
 
 662 
 
CHAP. XXXIX.] LEGISLATIVE DIVORCES. § 685 
 
 department of the government. And if it could be supposed 
 to do so, it could not itself exercise the power thus improperly 
 withheld, in all that class of cases which are required by the 
 Constitution to be tried by jury." In applying this principle 
 to the question of divorce, the judges were of opinion, that, 
 until the legislature enacts laws upon the subject, and invests 
 the courts with jurisdiction, it can itself exercise the authority 
 at pleasure ; but it cannot interfere in respect to those causes 
 which it has intrusted to the judiciary ; else there would be 
 practically an appeal from the highest judicial tribunal. Yet, 
 for causes not embraced in the general laws, the legislature 
 may lawfully grant divorces.^ Tlie same view substantially 
 was also taken in a very late case, by the court in Iowa. And 
 it was said, that the burden of proof lies with the party calling 
 in question the legislative divorce, to show, that it was for a 
 cause witliin the authority of the courts.^ 
 
 § 685. t'urther of the Distinotion and its Effect. — Lexi- 
 cographers consult usage to determine the signification of 
 words. And so, as a doctrine of statutory interpretation, the 
 words of a new enactment are to have the meaning they bore 
 in the old law.^ On this principle, a judicial power, in the 
 language of the constitution of a State, may well be regarded 
 as one which had previously been exercised by the judicial 
 tribunals ; and a legislative, one which had been employed by 
 the legislature. Now, in England, the country whence we 
 derive our laws, no judicial dissolutions of valid marriage have 
 been known till of late ; but all were by . special legislative 
 act. And divorce acts have been frequent, from early times, 
 in almost all our colonies and States. When, therefore, our 
 constitutions were adopted, the granting of divorces was prac- 
 tically a legislative function. And we may conclude, that, if 
 in any case the people had intended to restrain this practice, 
 they would have so specified ; and that an inhibition of judi- 
 cial powers should not be construed to embrace a function 
 
 1 Opinion of the Supreme Judicial GriflSn, 4 Harring. Del. 440. See post, 
 
 Court, 16 Maine, 479, 483, 484, 485 ; . § 689. 
 
 Adams v. Palmer, 51 Maine, 480. See ^ Levins v. Sleator, 2 Greene, Iowa, 
 
 post, § 692 a. See also the observa- 604. 
 tions of Harrington, J., in Townsend v. 3 Bishop Stat. Crimes, § 97-101. 
 
 563 
 
§ 686 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 which had theretofore been exercised by the legislatiire.^ In 
 aid of this view is the fact, that, in most of the States, the 
 same legislative practice has prevailed since the adoption of 
 their constitutions as before ; and thus we have, not only a 
 sort of contemporaneous construction, but scope for the 
 further consideration, that, since the power has been used for 
 many years, it should be deemed, almost conclusively, to have 
 been rightly employed. The judgment and usage of ages are 
 an authority not lightly to be disregarded .^ 
 
 § 686. The Result. — But whatever be the course of argu- 
 ment adopted, the general result is, that the granting of 
 divorces by the legislature is not such an exercise of judicial 
 authority as will render them invalid.^ In Missouri, where a 
 contrary doctrine is held, the provision of the constitution is 
 in very peculiar language. It is : " The powers of the gov- 
 ernment shall be divided into three distinct apartments, each 
 of which shall be confined to a separate magistracy, and no 
 person charged with the exercise of powers properly belonging 
 to one of those departments shall exercise any power properly 
 belonging to either of the others, except in the instances 
 hereafter expressly directed or permitted." * Whether, how- 
 ever, this peculiarity of language did or should make any 
 difference in the result, is perhaps doubtful.^ In Ohio, too, 
 wliose Supreme Court expressed the opinion, that the grant- 
 ing of divorces is a judicial act, not within the authority of 
 the legislature ; but still pronounced such a divorce valid, 
 because of the mischiefs which would ensue from a contrary 
 decision ; there appears to have been a peculiarity of another 
 sort in tlie constitution. The court said : " The legislature 
 
 1 Crane v. Meginnis, 1 Gill & J. 463. Greene, Iowa, 604 ; Jones v. Jones, 1 
 
 And see Jamison v. Jamison, 4 Md. Ch. U. S. Mo. Law Mag. 300, 2 Jones, Pa. 
 
 289, 297. 350; Cabell v. Cabell, 1 Met. Ky. 319. 
 
 ■^ The State v. Mayhew, 2 GUI, 487 ; But see Ponder v. Graham, 4 Fla. 23 ; 
 
 Calder v. Bull, 3 Dal. 386. Wright v. Wright, 2 Md. 429. And see 
 
 3 Starr v. Pease, 8 Conn. 541 ; Crane 3 American Jurist, 180. 
 V. Meginnis, 1 Gill & J. 463 ; Maguire < The State v. Fry, 4 Misso. 120 ; 
 
 V. Maguire, 7 Dana, 181 ; Hull v. Hull, Bryson v. Bryson, 17 Misso. 590. And 
 
 2 Strob. Eq. 174; West c-. West, 2 see ante, § 679, note. Eicheson v. 
 
 Mass. 223; Townsend v. Griffin, 4 Simmons, 47 Misso. 20; post, § 695 o. 
 Marring. Del. 440 ; Holmes v. Holmes, 5 And see Chouteau v. Magenis, 28 
 
 4 Barb. 295, 301 ; Levins v. Sleator, 2 Misso. 187, stated ante, § 679, note. 
 
 564- 
 
CHAP. XXXIX.] LEGISLATIVE DIVORCES. § 688 
 
 is not sovereign ; nor are all the departments of government 
 combined. The people only are sovereign. Nor can the 
 matter be helped out by implication ; for the constitution in 
 express terms declares, that ' all powers not hereby delegated 
 remain. with the people.' The legislature, then, as well as the 
 other departments of State, possesses only a delegated power, 
 and can exercise no power not delegated. The constitution 
 confers no power to grant divorces." ^ In respect to this view 
 it is obvious, however, that the Constitution of Ohio must 
 have authorized the legislature to make laws, special as well 
 as general ; and a divorce act is merely a special law. 
 
 V. Special Principles and direct Constitutional Inhibitions. 
 
 § 687. Express Prohibition — Fraud on the Legislature — Juris- 
 diction in the Courts. — Having, therefore, on a view of the 
 various brauches of this subject, arrived at the conclusion, tliat, 
 as a general proposition, the legislatures of the several States 
 have power to grant divorces by special act, let us look at some 
 of the limitations which have been proposed to this doctrine. 
 In the first place, such divorces cannot be awarded in those 
 States where they are expressly prohibited by the constitution.^ 
 In the next place, perhaps a legislative divorce may, like any 
 other, be void for fraud ; ^ though this point appears to have 
 been decided in a recent case the other way.* In the third 
 place, we have already stated tiie doctrine of Maine and Iowa, 
 that these divorces are not allowable for causes over which the 
 courts have jurisdiction.* A position similar to that last named 
 appears also to have been maintained by the tribunals of one or 
 two other States ; ^ but the question has there been blended 
 with others, which we shall presently consider.^ 
 
 § 688. Massachusetts. — The Constitution of Massachusetts, 
 which was adopted in 1780, provided, that " all causes of mar- 
 
 1 Bingham v. Miller, 17 Ohio, 445. ^ Jones v. Jones, 2 Jones, Pa. 350, 7 
 
 2 Ante, § 660, 664. Legal Intelligencer, 19, 1 U. S. Mo. Law 
 
 3 See Charles River Bridge v. War- Mag. 300 ; Gaines v. Gaines, 9 B. Monr. 
 ren Bridge, 7 Pick. 344 ; Sunbury and 295 ; Townsend v. Griffin, 4 Barring. 
 Erie Railroad v. Cooper, 9 Casey, 278. Del. 440 ; Crane u. Meginnis, 1 Gill & 
 
 < Post, § 690-692. See Bishop Stat. J. 463. 
 Crimes, § 38. ' Post, § 690-692. 
 
 5 Ante, § 684. 
 
 665 
 
§ 689 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK 'VI. 
 
 riage, divorce, and alimony .... shall be heard and determined 
 by the Governor and Council, until the legislature shall, by 
 law, make other provision." ^ And in 1792, a special resolve 
 granting a divorce to parties therein named, having passed 
 both houses of the legislature (the general jurisdiction in divorce 
 causes having been previously transferred by legislation from 
 the Governor and Council to the courts), Hancock, governor, 
 vetoed the resolve as violating the constitution. He said: " If 
 the General Court [the legislature] have any right to enact or 
 decree a divorce, they have it by force of the constitution, and 
 had it while this business was in the hands of the Governor and 
 Council as fully as they now have it; and, if they then had it, 
 tlie Governor and Council were not vested with exclusive power 
 to try ' all causes' of this nature." ^ "It is not known," ob- 
 serves Metcalf, J., " that the legislature have since attempted 
 to dissolve a marriage." ^ If the term " all causes of divorce," 
 as used in the constitution, does include a legislative divorce, 
 as well as a judicial, plainly the reasoning of the governor was 
 correct ; the legislature had no power left it over any " cause " 
 of divorce. The only question which could remain would be, 
 whether a legislative divorce is not to be deemed as proceeding 
 without cause, and therefore not embraced within the term " all 
 causes of divorce." * 
 
 § 689. As to Legislative Divorces being for Cause. — It is not 
 apparent upon what principle a legislative divorce can be, in 
 any proper, legal sense, for cause. When there is a cause, — 
 that is, when one party has committed an offence which entitles 
 tlie other to the remedy, — it would seem, that the ascertain- 
 ment of the fact, and the sentence of law following, must be 
 viewed only as an exercise of judicial power, not competent to 
 the legislature.^ But on the other hand, a divorce act, like 
 every other statute, would appear necessarily to flow merely 
 from the sovereign will. It is not the ascertainment of a right, 
 but the creation of one.^ In its creation, however, as in the 
 
 ' Const. Mass. part 2, c. 3, art. 5. shaU, C. J., of Kentucky, " that a leg- 
 
 2 12 Mass. Senate Journal, 191. islative divorce can be regarded as an 
 
 ' Shannon v. Shannon, 2 Gray, 285. exercise of the purely legislative func- 
 
 * And see ante, § 658 a. tion only, if at all, when it is founded 
 
 6 Ante, § 682. upon the mere will or discretion of the 
 
 6 "It would seem," observes Mar- legislature, without reference to the 
 566 
 
CHAP. XXXIX.J LEGISLATIVE DIVORCES. § 690 
 
 enactment of all other laws, the individual legislators are not 
 supposed to proceed blindly, and therefore the petitioner pre- 
 sents to them reasons, such as he thinks best calculated to 
 influence their minds ; yet this motive power can hardly be 
 regarded as a cause for divorce. Xow, if we admit the distinc- 
 tion laid down in Maine and lowa,^ we come to this conclusion, 
 — that a legislative divorce is good or not, according as the 
 petitioner might have obtained, or not, a decree in the courts ; 
 and, if there was an oflence unknown alike to him and the 
 legislature, it would still overturn the divorce, rendering it 
 invalid, simply because a greater wrong has been inflicted than 
 was supposed. But even a party who proceeds in court may 
 allege any one of several sufiicient causes, and take a decree 
 based solely on that one ; so, as the legislative power acts with- 
 out cause, while the courts do not, why should its action be 
 construed as interfering with them ? or as being the exercise of 
 a jurisdiction concurrent with theirs ? A legislative divorce, 
 moreover, is essentially a different thing from a judicial | 
 although it bears the same name, and, to a certain extent, 
 answers the same end. 
 
 § 690. Continued — Fraud. — In Pennsylvania, however, the 
 distinction taken by the judges in Maine and Iowa appears to 
 be necessary. There the amended constitution of the State 
 provides, that " the legislature shall not have power to enact 
 laws annulling the contract of marriage, in any case where, 
 by law, tlie courts of this Commonwealth are or may hereafter 
 be empowered to decree a divorce ; " and, if legislation were 
 not deemed to proceed on some cause, and if the judiciary 
 could not go behind a legislative act in which none appears 
 and ascertain what the cause was, this constitutional inhibition 
 would fail to accomplish any purpose whatever. Therefore, to 
 give effect to the inhibition, the cause may be thus inquired 
 into. But it was also apparently decided, that the court could 
 not take cognizance of any fraud in the procurement of the 
 divorce act.^ 
 
 breach of any existing contract or See ante, § 687. If the legislature dis- 
 
 law." Gaines u. Gaines, 9 B. Mour. solves a marriage, it is presumed to 
 
 295 807. have acted on a sufficient cause shown. 
 
 i' ^nte, § 684. Cronise v. Cronise, 4 Smith, Pa. 255. 
 
 2 Jones V. Jones, 2 Jones, Pa. 350. 
 
 567 
 
§ 691 LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 § 691. Kentucky — Fraud — Cause pending in Court. — 111 
 Kentucky, a wife brought her bill for alimony ; the husband 
 filed an answer in the nature of a cross-bill for divorce. Before 
 the hearing, he, to defraud her of her property and claim to be 
 supported out of his estate, procured from the legislature an act 
 dissolving the marriage ; which act he set up in a supplemental 
 answer. After this, he died ; and she filed her bill of revivor 
 against the executor and heirs, demanding dower and distribu- 
 tion as widow. Here a fraud was attempted upon her ; and 
 the court held, that, under the circumstances, her claim should 
 not be defeated by it. " The question," observed Marshall, 
 C. J., who delivered the opinion, " 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 party, after having sought a divorce in a judicial 
 tribunal, and while his suit is there pending, abandons that 
 forum and resorts to the legislative power for the sole purpose 
 of affecting and defeating the legal and equitable rights of his 
 wife in his property, the divorce, granted by the legislature on 
 such application, can, without disregarding the division of 
 powers and distinction of departments established by the con- 
 stitution, and the security of private rights of contract and of 
 property therein granted, be considered as affecting to any 
 extent the rights of property involved in the question of divorce. 
 
 We are of opinion that it cannot If it were conceded, 
 
 as intimated in McGuire v. McGuire,^ that the marriage con- 
 tract is not a contract wholly removed, like other contracts, 
 from the power of the legislature to dissolve it in any particular 
 case by special act of divorce ; and that the dissolution of a 
 marriage, if required by the public good, may be a legislative 
 function; still, it cannot be admitted,. that a power thus de- 
 duced, imcertain upon principle as to its existence, and still 
 more uncertain as to the grounds of its legitimate exercise, can 
 override the express and highly conservative prohibitions in the 
 constitution, intended for the protection of private rights of 
 property. We are of opinion, therefore, that whatever power, 
 to be exercised in view of the public good, the legislature may 
 have to enact divorces in special cases ; as it cannot, even for 
 
 1 McGuire v. McGuire, 7 Dana, 181. 
 568 
 
CHAP. XXXIX.] LEGISLATIVE DIVORCES. § 692 fl 
 
 the public good, change the right of private property from one 
 to another without compensation ; much less can it do so by 
 special act of divorce, sought by one of the parties against tlie 
 consent of the other, with the purpose of affecting or operating 
 upon the rights of property incident to the marriage relation, 
 as created and sustained by the general laws applicable to that 
 relation. And the wife having taken no advantage of any privi- 
 leges afforded by the divorce, she is in no manner precluded 
 
 from contesting its operation Under tliese views, and 
 
 without deciding upon the effect of legislative divorces so far as 
 they may operate upon the personal relations and abilities or 
 disabilities of the parties, we conclude, that 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." ^ 
 
 § 692. Continued. — Of this case it may be observed, that 
 the claim which the woman sought in her supplemental bill to 
 enforce depended solely on her being the man's widow ; that 
 is, on the vinculum of the marriage remaining unbroken at the 
 time of his death ; ^ so that, if the legislative divorce was valid 
 for any purpose, it must have defeated this suit. If we admit, 
 therefore, the authority of this case, we must consider it either 
 as having been decided on the ground of fraud,^ or as asserting 
 tlie principle, which certainly appears highly reasonable, that 
 the legislature cannot constitutionally grant a divorce to a 
 party who has, at the same time, a suit for that purpose pend- 
 ing in the courts, And in confirmation of this latter view we 
 have the general principle, that the tribunal which first takes 
 jurisdiction of a matter is entitled to exercise the jurisdiction 
 to its close.* 
 
 § 692 a. Maine — Special Authority to the Court. — We have 
 
 1 Gaines u. Gainea, 9 B. Monr. 295. of a legislative divorce granted on the 
 See also Jones v. Jones, 7 Legal Intel- petition of the husband, and a hearing 
 ligencer, 19, 1 U. S. Mo. Law Mag. 300, ex parte, without notice to the wife. 
 2 Jones, Pa. 350 ; ante, § 690. The divorce, however, was treated as 
 
 2 Levins u. Sleator, 2 Greene, Iowa, valid, neither party seeking to draw it 
 604. in question. 
 
 3 And see Richardson «. Wilson, 8 * Mason v. Piggott, 11 111. 85; 1 
 Yerg. 67, where Peck, J. intimates a Bishop Mar. Women, § 634. 
 
 query as to the constitutional validity 
 
 569 
 
§ 692 a LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 seen ^ that, in Maine, a legislative divorce is held to be good if 
 rendered in a case in which, under existing laws, the courts 
 have no jurisdiction .2 This being settled, a case was presented 
 to the legislature in which, by reason of the parties not having 
 been married or having cohabited or the cause having occurred 
 there, the court under the statutes had no jurisdiction. But 
 the legislature, instead of granting the divorce, committed the 
 authority over the case to the court. Thereupon this special 
 act was, in Massachusetts, held to be void under the Constitu- 
 tion of Maine as granting a special indulgence by way of 
 exemption from the general law.^ It is not proposed to discuss 
 this decision ; it is something very unusual for the courts of 
 one State to pass upon the validity, within the State constitu- 
 tion, of a statute enacted in another State, and the report does 
 not disclose by what helps as to the foreign law this was done 
 in the present instance. As the construction and applicability 
 to a case of a foreign statute are properly provable by the 
 expert testimony of the practitioners in the foreign court, and 
 others who are particularly acquainted therewith, and as the 
 legislature of Maine was composed of persons who were consti- 
 tutionally qualified to pass in the first instance upon the 
 meaning and effect of the Maine Constitution which they were 
 officially sworn to support, of course the Massachusetts court 
 did not overrule the Maine adjudication of the question, con- 
 tained in the enactment itself, without some help concerning 
 the foreign law other than what proceeds from those general 
 considerations which might have been properly resorted to if 
 the case had been a Massachusetts one. Therefore, by reason 
 of the report not furnishing full information as to what was 
 done, this case could not furnish a precedent for other courts 
 on the latter point. Then, as to the former point, it being 
 settled in Maine, that the legislature had authority, by special 
 act, itself to dissolve the marriage, there is fair ground for the 
 inference, that, therefore, it could by the like special act com- 
 mit the power to the courts ; this was no more a granting of 
 a special indulgence by way of exemption to the general law 
 than the other would have been. The cases referred to by the 
 
 1 Ante, § 684. 8 Simonda v. Simonds, 103 Mass. 
 
 2 Adams v. Palmer, 51 Maine, 480. 572. 
 
 570 
 
CHAP, XXXIX.J LEGISLATIVE DIVORCES. § 694 
 
 Massachusetts court were cases in which the legislature did 
 not, as in this instance, possess within itself the power of giving 
 tlie relief sought. There is, therefore, abundant room to 
 maintain a distinction between the two classes of cases. 
 
 VI. How the Divorce is limited in its Effect. 
 
 § 693. General Doctrine — Rights of Property — Alimony, &o. 
 — We have seen that a legislative divorce is a law ; a judicial 
 one, a decree ; that a statute cannot divest vested rights, but 
 a sentence of court may.i Tlie legislature, therefore, cannot, 
 in its divorce act, divest the husband of vested rights of prop- 
 erty, and bestow them upon the wife. It cannot give the wife 
 alimonyj or any thing in the nature of alimony, out of the 
 estate of the husband.^ But as it snaps the vinculum of the 
 marriage, whatever hangs upon it falls. Thus, if the man 
 dies, the woman will not be his widow, nor entitled as such 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 immediately.'' 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 com- 
 mitted 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." ^ 
 
 § 694. Voidable Marriage. — Upon the view we have taken 
 of tliis question, there may arise the further doubt, whether 
 the legislature can so dissolve a voidable marriage that it will 
 afterward be regarded as having been void in law from the 
 beginning, — which is the common consequence of a judicial 
 sentence of nullity. Looking at this query in the light of 
 
 1 Ante, § 675, 678, 681, 682, 686, 689. Johnson, 3 B. Monr. 90 ; West v. West, 
 
 2 Crane v. Meginnis, 1 Gill & J. 463 ; 2 Mass. 233 ; post, § 697-699. 
 Holmes v. Holmes, 4 Barb. 295, 301 ; ' Levins v. Sleator, 2 Greene, Iowa, 
 Townsend v. Griffin, 4 Harring. Del. 604. 
 
 440 ; The State v. Fry, 4 Misso. 120, « Starr v. Pease, 8 Conn. 541 ; Town- 
 193 ; Jackson u. Sublett, 10 B. Monr. send v. GriflBn, 4 Harring. Del. 440. 
 467. See, however, Berthelemy v. * Daggett, J. in Starr o. Fease, 
 
 supra. 
 
 571 
 
§ 695 a LEGISLATIVE MARRIAGES AND DIVORCES. [BOOK VI. 
 
 principle, we have seen,i that the reason why the marriage is 
 voidable (when it is so) instead of void, is, because the courts 
 have no jurisdiction to inquire into the impediment in a col- 
 lateral 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 this matter as well in a collateral as a direct 
 proceeding ? And thtis the legislative act would be made to 
 have something like tlie effect of a sentence of nullity ; that is, 
 it would practically transform the marriage from a voidable to 
 a void one ; yet it might not, as to the past, estop inquiry, like 
 the decree of a court. The point, however, has not received 
 judicial elucidation.^ 
 
 § 695. Prom Bed and Board — Alimony, again. — We have 
 seen, that the legislative divorce may be, and sometimes is, 
 from bed and board ; ^ yet that it cannot embrace also a pro- 
 vision for alimony.* 
 
 § 695 a. Estoppel. — We have already seen ^ that the Mis- 
 souri court has held legislative divorces to be invalid. In a 
 recent case, the court seemed not to be quite satisfied with the 
 doctrine ; but, not undertaking to overrule it, held, that, thougii 
 these divorces had already been adjudged to be unconstitutional, 
 still, when parties after obtaining such a divorce lived separate 
 for a period of twenty years, during which each contracted a 
 new marriage, the divorce must be considered so far valid as 
 to estop either from intermeddling with the affairs of tlie other. 
 Therefore, if the wife so divorced wishes to' dispose of lands 
 constituting her separate estate, it is not necessary that her 
 former husband should join in the conveyance.^ 
 
 1 Ante, § 109, 110. * Ante, § 693. 
 
 2 Ante, § 663. 6 Ante, § 686. 
 
 5 See Guilford v. Oxford, 9 Conn. « Richeson v. Simmons, 47 Misso 
 321. 20. 
 
 572 
 
CHAP. XL.J CAUSE EXISTING BKPOBE STATUTE. § 696 
 
 BOOK VII. 
 JUDICIAL DIVORCES. 
 
 CHAPTER XL. 
 
 WHETHER A GENERAL STATUTE MAT AUTHORIZE DIVORCE FOR 
 CAUSES ALREADY EXISTING. 
 
 § 696. Nature of the Question — General View. — Under what 
 circumstances a statute will be construed to embrace antece- 
 dent causes of divorce, — that is, facts which transpired before 
 it was passed, — is matter which we have already considered.^ 
 But suppose a statute does clearly embrace antecedent causes, 
 is it, for this reason, and to this extent, unconstitutional ? 
 Now, this question involves some of the principles which were 
 discussed in the last chapter, but not all of them. If legisla- 
 tive divorces are invalid as violating the constitutional pro- 
 visions against laws impairing the obligation of contracts,^ and 
 retrospective laws,^ then it may perhaps follow that the divorces 
 contemplated in this chapter are invalid also. Marriage, as 
 viewed by the divorce law, is not a contract ; for it is the 
 executed status which the contract of present consent to 
 become husband and wife superinduced ; * neither is marriage 
 a vested right, which cannot be taken away by subsequent 
 legislation under the name of retrospective laws, as the reader 
 will see who follows the discussions on that subject in the last 
 chapter.^ And, a fortiori, statutes authorizing a judicial annul- 
 ling of the marriage for causes already existing do not involve 
 
 1 Ante, § 98-103. 40 Missis. 164 ; Carson v. Carson, 40 
 
 2 Ante, § 666-669. Missis. 349. 
 
 3 Ante, § 670-679. « Ante, § 670-679. 
 * Ante, § 3-19, 669 ; Magee v. Young, 
 
 673 
 
§ 697 JUDICIAL DIVORCES, [BOOK Til. 
 
 an interfering, by legislative act, with a judicial jurisdic- 
 tion.^ Therefore the Mississippi court held the following 
 statutory provision to be constitutional : " In all cases where 
 parties have, prior to the passage of this act, lived separate 
 and apart for the period of four years, within tliis State, and 
 either of them may desire to be divorced from the bonds of 
 matrimony, and have not lived separate and apart by collusion, 
 and with the intent of procuring a divorce, it shall be lawful 
 for them, or either of them, to file a bill setting forth such 
 desire, and upon due proof of such living separate and apart, 
 it shall be competent for the court to decree a divorce from the 
 bonds of matrimony." Said Bllett, J. : " We regard marriage 
 as a civil status, a matter publici juris, created by public law, 
 subject to the public will, and not to that of the parties, who 
 cannot dissolve it by mutual consent ; that it is more than a 
 contract, because it establishes fundamental domestic relations, 
 affecting the welfare of the community, and because it is an 
 institution of the State founded on reasons of public policy." ^ 
 § 697. Property Rights. — At the same time, while the 
 general doctrine is, on principle and on the better authorities, 
 as thus stated, there is room for the suggestion, that, as to 
 the efiect which can be given to the divorce, it, like a legisla- 
 tive dissolution of the marriage, can only operate on such • 
 property rights as depend on the vinculum of the marriage, 
 and cannot authorize such a collateral decree as for alimony.^ 
 The question has not been very thoroughly 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 luisband. Sedgwick, J., observed : " By an intermarriage, 
 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 survivorship, to certain proportions of this joint fund. The 
 
 1 Ante, § 680-686. 3 Ante, § 693. 
 
 2 Carson v. Carson, supra ; see p. * Ante, § 100. 
 361 of the report. 
 
 574 
 
CHAP. XL.J CAUSE EXISTING BEFORE STATUTE. § 699 
 
 legislature had an unquestionable right to prescribe what part 
 of this joint fund shall go to each party in the evefit of a sepa- 
 ration by divorce."^ This decision, proceeding on an inaccurate 
 statement of the legal property-relations subsisting between 
 husband and wife, is therefore entitled to little weight except 
 its bare authority as adjudged law within the sphere of the 
 jurisdiction in which it was pronounced. Yet for all this it 
 may be correct. In Kentucky it was in like manner held, 
 that, if the legislature authorizes a court to investigate a par- 
 ticular case and grant, on the cause being established, a 
 divorce from the bond of matrimony, and thereupon to make 
 provision out of the husband's estate for the support of the 
 wife, this is within its power and discretion ; and the court 
 •may, under the act, invest the wife with the title to a tract of 
 land which was the husband's.^ 
 
 § 698. Contrary Doctrine — Conflicting Authorities. — On the 
 other hand, there are cases which hold that the legislature 
 cannot authorize the courts even to dissolve the vinculum of 
 the marriage, for a cause which has already transpired. Such 
 a law, it was said, is retrospective and void.^ And in one case 
 the court laid down the very singular doctrine, that a statute 
 of this nature is unconstitutional, as being an ex post facto 
 lawA Still, the opinion we have considered, as having the 
 better foundation in principle,* rests also upon a pretty good 
 basis of judicial authority.^ 
 
 § 699. Tennessee Doctrine. — On tliis subject, the view taken 
 by the court in Tennessee is worthy of consideration. A stat- 
 ute newly provided, that, when " any person hath been or shall 
 be injured " by the husband or wife's commission of adultery, 
 &c., the innocent party shall be entitled to a divorce. A suit 
 having been brought under this enactment, for adultery com- 
 mitted before it became a law, the defendant set up in defence 
 the clause of the constitution of the State, that " no retrospec- 
 
 1 West V. West, 2 Mass. 223, 227. * Dickinson v. Dickinson, 3 Murph. 
 
 2 Berthelemy v. Johnson, 3 B. Monr. 827. 
 
 90. 5 Ante, § 696. 
 
 3 Clark V. Clark, 10 N. H. 880 ; Jar- « Jones v. Jones, 2 Overt. 2 ; Berthe- 
 vis V. Jarvis, 8 Edw. Cli. 462 ; Giren lemy v. Johnson, 3 B. Monr. 90 ; West 
 V. Marr, 27 Maine, 212, 222 ; Sherburne v. West, 2 Mass. 223 ; Smith a. Smith, 
 V. Sherburne, 6 Greenl. 210; Green- 3 S. & B. 248. 
 
 law V. Greenlaw, 12 N. H. 200. 
 
 575 
 
§ 699 JUDICIAL DIVORCES. [bOOK TII. 
 
 tive law, or law impairing the obligation of contracts, shall be 
 made." The court overruled the objection, and Overton, J., in 
 delivering the opinion, observed among other things as follows : 
 " There is certainly a distinction between an act which is malum 
 in se, and one which is in its own nature indifferent. The legis- 
 lature 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 be- 
 fore 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, as has been contended. Blackstone and 
 other writers define an ex post facto law to relate to public pun- 
 ishment ; and this certainly was the sense in wliich the framers' 
 of the constitution received it, else why make use of retro- 
 spective also ? This part of the act may in a general sense be 
 called retrospective, but in legal phraseology it cannot be called 
 ez post facto. In my view of the constitution, it cannot be. 
 construed in violation of it. The constitution says, that ' no 
 retrospective law, or law impairing the obligation of contracts, 
 shall be made.' Retrospective here was inserted from abun- 
 dant 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 immutable principles of 
 justice might require ; such an institution must suppose abso- 
 lute foresight in man, which we all know is not one of his at- 
 tributes. The wisest government that ever existed could not 
 possibly foresee many evils which might require a remedy con- 
 sistent with justice and the law of our nature. The legislature 
 [constitution?], as it appears to me, meant that the word ret- 
 rospective should be restrained, in its acceptation, to contracts, 
 but not marriage contracts, they being incapable, in their very 
 nature, of the application of such a' principle." i 
 
 1 Jones V. Jones, 2 Overt. 2. And see the reasoning of the court in Ber- 
 thelemy v. Johnson, 3 B. Monr. 90. 
 
 576 
 
CHAP. XLI.] FURTHER PRELIMINARY VIEWS. § 701 
 
 CHAPTER XLI. 
 
 FURTHER PRELIMINARY VIEWS. 
 
 § 700. Scope of the Discussion — Order of it. — We approach 
 now the consideration of the specific cause of divorce. We 
 have already examined the various original defects, which 
 make the marriage void or voidable ; what we are now to 
 inquire into are those breaches of matrimonial duty, which, 
 occuri-ing subsequently to the nuptials, authorize a dissolution 
 of the marriage, or a suspension of it by a divorce from bed and 
 board. While examining the various grounds of nullity, we 
 confined ourselves chiefly to the law of the subject, and we shall 
 pursue the like course here ; leaving, for the second volume, a 
 consideration of the pleading, practice, and evidence. In the 
 first three editions of this work, which were in one volume, 
 the law and the evidence were treated of together, and the 
 pleading and practice were not discussed. But in the two-vol- 
 ume editions, where the pleading and practice have been added, 
 it seemed better to follow the order above indicated ; because, 
 since the work was originally written, the statutes have gener- 
 ally provided for the submitting of divorce causes to juries, and 
 it becomes specially important to separate the evidence from 
 the law. 
 
 § 701. Scope, continued. — It is not proposed, in the series 
 of chapters , upon which we are now entering, to discuss every 
 possible cause of divorce to be found in any American statute, 
 but only such causes as have furnished matter for judicial deci- 
 sion. It would be gratifying to some readers, should the writer 
 here bring together the several statutes of the respective States 
 upon this subject, and mention what is cause of divorce in each 
 State. And though the labor of doing this would be consider- 
 able, that labor would be cheerfully performed if any corre- 
 sponding advantage could accrue to the reader therefrom. 
 Suppose the labor to be accurately performed, — a thing of the 
 greatest difficulty where the question is one of statutory law, 
 
 VOL. I. 37 577 
 
§ 702 judicial' divorces. [book vii. 
 
 — the result would be useful only to such lawyers and their 
 clients as were devising means to evade the laws of their own 
 State, by obtaining, in some other jurisdiction a divorce which 
 in most instances would be without legal effect. And then the 
 question would be, not only what are the causes of divorce in 
 sister States, but under what circumstances also their courts 
 will entertain the complaint of persons removing into those 
 States from other States, to avail themselves of breaches of 
 matrimonial duty which occurred before the removal ; so that, 
 in this view, the investigation would have to be extended a 
 great way. Then also there would have to be another investi- 
 gation, namely, as to the intelligence, or the ignorance, or the 
 pliability, of the respective judges and juries to be found in the 
 several States ; for, in causes in particular in which there is to 
 be no defence, these considerations constitute what is truly a 
 " great matter." Yet how can an author enter into this mat- 
 ter ? Should he praise a particular locality to-day, saying, 
 " Soft judicial ground lies here," the ground might dry up and 
 be hard to-morrow. 
 
 § 702. Further of the Order of Discussion. — Although it is 
 the object of the author, in the chapters which immediately 
 follow, to state only the law of the several causes, as distin- 
 guished alike from the pleading, the practice, and the evidence, 
 yet it will sometimes be found nearly if not quite impossible to 
 keep the line there distinctly in view, and cut smooth. And 
 this difficulty is increased by the fact, that it is desirable to 
 preserve entire, as much as possible, the sections of the early 
 editions, which were prepared with reference to the law as 
 existing in its practical administration at the time when they 
 were written, and law and evidence were alike passed upon by 
 the judge without the aid of a jury. Yet if this difSculty stood 
 alone, it could be surmounted ; the entire matter could, if desir- 
 able, be rewritten. But the great obstacle is, that judicial de- 
 cision has not yet clearly drawn the line we are now considering. 
 In the chapters which immediately follow, some suggestions 
 upon this topic, with references to a few decisions, will be 
 found ; but it must be left to controversies hereafter to arise to 
 make distinct in adjudication what chiefly can here be men- 
 tioned only in the way of legal theory. 
 578 
 
CHAP. XLII.] ADULTERY. § 704 
 
 CHAPTER XLII. 
 
 ADULTERY. 
 
 § 703. General View — Definition. — Adultery is almost 
 universally in this country a ground of divorce from the bond 
 of matrimony. It is, the voluntary sexual intercourse of one of 
 the married parties with a person other than the husband or 
 wife.^ If the reader will turn to the author's work on Statutory 
 Crimes ^ he will see, that, relating to this definition, there are 
 some distinctions and differences of judicial opinion important 
 in the criminal department of our law, not necessary to be con- 
 sidered here. For the offence which leads to the remedy of 
 divorce can, of course, be committed only by a married person ; 
 and it is immaterial whether the particeps criminis is married 
 or single.^ In the time of slavery it was committed, likewise, 
 by an unlawful commerce with a negro slave.* 
 
 § 704. Adultery by Man and Woman distinguished. — Some 
 persons have supposed, that, in legislation, a difference ought 
 to be made between adultery in the wife and adultery in the 
 husband ; since the latter does not impose on the marriage a 
 spurious issue, while the former may.^ But neither the English 
 practice, as it prevailed previously to the statute which created 
 a judicial jurisdiction to divorce parties from the bond of matri- 
 mony,^ nor the laws of the states of continenial Europe gener- 
 ally,' make any difference, except that, in England, the practice 
 of Parliament in granting divorce by special act was, to interfere 
 as a general rule in favor of the husband, and as a general rule 
 to refuse the remedy when the wife was applicant.^ The recent 
 
 1 " Adultery, by the law of Scotland, * Mosser v. Mosser, 29 Ala. 313. 
 consists in the carnal connection of one 5 gee Matchin u. Matchin, 6 Barr. 
 of the married parties with any other 332 ; 2 Kent Com. 106 ; Shelford Mar. 
 person than him or her to whom he or & Div. 395. 
 
 she is married." 1 Fras. Dom. Rel. « Shelford, supra. 
 
 656. ' Macqueen H. L. Pract. 482. 
 
 2 Stat. Crimes, § 654^656. 8 Macqueen H. L. Pract. 474-486; 
 a See 1 Swift's System, 192; Eeeve Hosack Confl. Laws, 255 and note. 
 
 Dom. Rel. 207 ; Commonwealth v. 
 Call, 21 Pick. 509. 
 
 579 
 
§ 705 JUDICIAL DIVORCES. [BOOK Til. 
 
 English statutes retain substantially the old law of divorces 
 from bed and board in cases of adultery, calling them now- 
 judicial separations ; but, as a substitute for the parliamentary 
 practice, contain provisions, already quoted in this volume,^ 
 which, as respects the dissolution of the marriage, discriminate 
 somewhat in favor of the husband. Adultery only in the wife 
 is ground for dissolving the marriage at the suit of the husband ; 
 but, when the wife is applicant, there must be some other weight 
 of guilt, besides a single act of simple adultery committed by 
 the husband, cast into the scale, before tlie justice of her claim 
 is permitted to prevail over opposing interests. The better 
 view plainly is, that, whether the husband's adultery is a graver 
 or less grave offence against the marriage than the wife's, the 
 adultery of either ought to afford the other, if iimocent, ground 
 for dissolving the marriage bond. 
 
 § 705. Bond of Marriage or Bed and Board. — We have seen,^ 
 that, in all probability, though there may be room for doubt 
 on the point, all divorces were at the very early periods of the 
 English law in one form, known as separations from bed and 
 board, as well as by the shorter term divorce, and that they 
 were in legal effect dissolutions of the marriage bond ; but 
 that, from time to time, the ecclesiastical authorities forbade 
 remarriages in certain cases, till at length the present distinc- 
 tion between bed and board and the bond of marriage became 
 established in the law, and the decree was made to follow in 
 form tlie distinction thus introduced. However this may be, 
 it is difficult for pne who consults the ancient boolcs to resist 
 the conviction, that there was a time when the effect of a 
 divorce for adultery, whatever its form, was to dissolve the 
 marriage bond ; and, though this proposition was not univer- 
 sally admitted at the time Godolphin wrote,^ subsequent 
 investigations cause it to be more generally so in later years. 
 But afterward the law was changed ; and, for a long series of 
 years, until the year 1858, all judicial divorces in England, 
 for causes arising subsequently to the marriage, were from 
 bed and board, as the term is understood in the modern law.* 
 
 1 Ante, § 65, note. 8 Qo^oI J^■^^^_ gQQ^ gpi. 
 
 2 Ante, § 661 and note. 4 2 Burn Ec. Law, 503 : 1 Woodd 
 580 
 
CHAP. XLII.] ADULTERY. § 707 
 
 § 706. How under American Common Law — Statutes. — 
 According to principles which we have already considered,! 
 adultery, having been ground of divorce from bed and board 
 in England at the time when this country was settled, is such 
 also by the common law of our several States ; while, how- 
 ever, as the remedy in England could be pursued only in the 
 ecclesiastical courts, and as we liave no such courts, this 
 cause of divorce could be practically made available with us 
 only by force of a statute giving the jurisdiction to some one 
 of our tribunals. And in practice our statutes have generally 
 directed, that the, divorce should be from the bond of matri- 
 mony, not merely, as formerly in England, from bed and 
 board. We have seen,^ that, even now in England, when 
 this full divorce is to be given to the wife, something more 
 than ordinary and simple adultery must be alleged and proved 
 against the husband. In our States generally, nothing more 
 is required, whether the divorce is to be granted to the wife 
 on her application, or to the husband on his. 
 
 § 707. Desertion and Living in Adultery. — Yet in North 
 Carolina there is or was a statute which made it ground of 
 divorce " wliere either party has separated him or herself from 
 the other, and is living in adultery ; " under which statute, 
 therefore, two things must concur, namely, first, the wrongful 
 separation ; secondly, the living in adultery. If, therefore, 
 under this statute, a husband deserts his wife, or so conducts 
 as to justify her in leaving him, and then she lives in adultery, 
 he cannot have the divorce.^ Neither is a single carnal act 
 sufficient, tjiougli flagrant in its nature ; there must be a living 
 in adultery.* And there is or was a statute in Louisiana of 
 a somewhat similar nature and construction. Under this 
 statute it was not deemed necessary that the cause should be 
 contiuuing at the time of suit brought.^ The reader will see 
 more of this matter further on.^ 
 
 Lect. 258 ; Macqueen H. L. Pract. 470, « Long v. Long, 2 Hawks, 189. As 
 
 note. Argument in Shaw o. Gould, to the criminal offence of living in adul- 
 
 Law Rep. 3 H. L. 55, 63. tery, see Bishop Stat. Crimes, § 695 
 
 1 Ante, § 66 et seq. et seq. 
 
 2 Ante, § 704. 5 Adams v. Hurst, 9 La. 243. 
 
 3 Whitingtou u. Whitington, 2 Dev. <> Post, § 825. 
 & Bat. 64; Moss v. Moss, 2 Ire. 55. 
 
 See Wood v. Wood, 5 Ire. 674. 
 
 581 
 
§ 710 JUDICIAL DIVORCES. [BOOK VII. 
 
 § 708. What is Adulter^/ : — 
 
 Points of Inquiry. — But ill the consideration of these few 
 special statutes, as well as those which generally prevail in 
 this country, the principal questions to which the attention 
 of the legal person is to be directed are, — what is adultery ? 
 and what are the proofs thereof, and what is the other pro- 
 cedure relating thereto ? There is no difficulty, under this 
 head, in separating the law from the fact. Let us proceed, in 
 a few sections, to consider the first of these questions ; the 
 others will be brought under review in our second volume. 
 
 § 709. The Intent. — In criminal law, to constitute adultery, 
 as to constitute any other crime, there must be the criminal 
 intent.^ Does the same rule prevail in the law of divorce ? 
 A review of the authorities will show that it does. Unjust 
 would it be, that a husband should have it in his power to 
 cast his wife away because of any misfortune which, without 
 the concurrence of her mind, might befall her ; as, for instance, 
 where she is the victim of rape, and the liiie. 
 
 § 710. Continued — Voluntary — Rape — Mistake of Pact. — 
 Therefore, for adultery to be the foundation for divorce, it 
 must be voluntary. When the party is compelled by force or 
 ravishment ; or the wife has carnal knowledge of a man not 
 her husband, through error or mistake, she believing liim to 
 be her husband ; or when, 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 mat- 
 rimonial intercourse with him ; the offence justifying a divorce 
 is not committed.^ If a statute, in the case last mentioned, 
 renders the second marriage voidable, not merely void, a con- 
 tinuance of the cohabitation under it after the former husband 
 or wife is known to be alive, will not entitle such former hus- 
 band or wife to a divorce ; such party must first get a decree 
 of nullity of the second marriage; and, if the parties to it 
 
 1 See Bishop Stat. Crimes, § 663- with another man, even under a false 
 666. rumor, bona fide believed, of his being 
 
 2 Ayl. Parer. 226. The doctrine dead. But hard though this may be 
 thus stated is also, in all its parts, the in particular cases, the doctrine is un- 
 well settled Scotch law ; though Erskine questionably sound, and it should be 
 considers it hard to refuse the husband enforced. And see 1 Eras. Dom. Rel. 
 his divorce, and compel him to take 81, 657; ante, § 298; Bishop Stat, 
 back his wife, when she has cohabited Crimes, § 663-665. 
 
 682 
 
CHAP. XLII.] ADDLTERT. § 712 
 
 then continue their cohabitation, he may have the marriage 
 dissolved for this cause. ^ 
 
 § 711. Cohabitation under Void Marriage — Void Divorce — 
 Connivance. — If one of the married parties goes into another 
 State or country, not changing in good faith his domicil,but for 
 the mere temporary purpose of obtaining a divorce, and obtains 
 it, imposing on the foreign tribunal (for unless imposed upon 
 it would not grant a divorce to such a party), the divorce is, as 
 we shall more fully see in another place, void. When, there- 
 fore, such party enters into a formal marriage with another 
 person, the marriage is void ; and cohabitation under it is 
 such adultery as will lay the foundation for a divorce at the 
 suit of the other party to the original marriage.^ The case as 
 thus put supposes that the party applying for the second divorce 
 is innocent as respects the first one, having remained behind 
 and not having participated in the fraud practised on the for- 
 eign court. But, on principle, speaking now without the help 
 of specific adjudication, if the applicant for the second divorce 
 was a partner in the fraud by which the first was obtained, 
 such concurring party should be barred of the remedy for the 
 subsequent unlawful cohabitation, on the ground of connivance. 
 On the other hand, if .the party who remained behind was 
 guilty of no bad faith, and had no notice that the removal of 
 the other to the foreign jurisdiction was merely temporary, or 
 notice of any other fact which would render the divorce void, 
 but was imposed upon the same as was the foreign judge, then, 
 on principle, a subsequent marriage by such innocent party, 
 and a cohabitation under this really void marriage, would not 
 in law constitute adultery for which a divorce should be granted 
 on prayer of the other party. Even if such remaining partner 
 were guilty of collusion regarding the foreign divorce, would 
 not still the other one be estopped to proceed for his divorce 
 by reason of his conduct having amounted to connivance ? 
 
 § 712. Insanity of Offending Party. — On very familiar prin- 
 ciples, if the carnal act is suffered to pass while the party to it 
 is insane, the criminal offence of adultery is not committed. 
 
 1 Valleau v. Valleau, 6 Paige, 207; Giffert v. MeGiffert, 31 Barb. 69, 13 
 ante, § 114. Ind. 315, note. 
 
 2 Leith V. Leith, 39 N. H. 20 ; Mc- 
 
 583 
 
§ 713 JUDICIAL DIVORCES. [BOOK VII. 
 
 Neither, therefore, will the act lay the foundation for a 
 divorce.^ Yet the Pennsylvania court, in one case, with con- 
 siderable 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, this will be sufficient to dissolve the mar- 
 riage.^ But this doctrine has found no support elsewhere.^ If 
 the insanity should expose the wife to the danger of a repetition 
 of the act, this would justify the husband in "pursuing the more 
 merciful course of restraining her. 
 
 § 713. Peculiar Religious Opinions. — Plainly a party in a 
 divorce suit cannot rely, in defence of his adulterous act, upon 
 any pretended or real religious opinions favoring adultery, or 
 concubinage, or polygamy. In a suit between Jews, Lord 
 Stowell 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 tliere 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 1 think it could not." * 
 Indeed, it is believed that there are no circumstances in which, 
 whether in a divorce case or any other, a party can plead his 
 peculiar religious views as an excuse for violating the law of 
 the land. 
 
 1 Nichols V. Nichols, 31 Vt. 328 ; 3 gee Wray v. "Wray, and Nichols 
 Wray ^. Wray, 19 Ala. 522; Broad- v. Nichols, supra. 
 
 street v. Broadstreet, 7 Mass. 474. 4 D'Aguilar v. D'Aguilar, 1 Hag. Ec. 
 
 2 Matchin v. Matchin, 6 Barr, 332, 773, 3 Eng. Ec. 329, 386. 
 10 Law Reporter, 266. 
 
 684 
 
CHAP. XLIII.] CRUELTY. § 714 
 
 CHAPTER XLIII. 
 
 CRUELTY. 
 
 714. Introduction. 
 
 715-721. Definition and Nature of Legal Cruelty. 
 
 722-753. Particular Propositions connected with the General Doctrine. 
 
 754-760. Relative Rights and Duties of Husband and Wife. 
 
 761-763. Cruelty by the Wife to the Husband. 
 
 764-768. Efifect of 111 Conduct in the Complaining Party. 
 
 769, 770. Distinction between the Law .and the Evidence. 
 
 § 714. General View — How the Chapter divided. — In the 
 last chapter, the principal object of which was to explain what 
 is the adultery by reason whereof the innocent party may have 
 a divorce, we found the entire matter simple and lying within 
 a small compass. But in this chapter we come to a subject 
 of a different sort. It is not plain, under all circumstances, 
 supposing the facts of a case to be known, whether or not the 
 particular conduct complained of is cruelty. While divorces 
 were granted by judges who took into consideration both the 
 law and the evidence, and had no help from a jury, the judge 
 used to bring together into one mass the facts of a case and 
 the law governing them ; and in most instances without dis- 
 tinguishing the one from the other pronounced for or against 
 the particular application. And what was esteemed law and 
 what fact the reader of an opinion could not always easily 
 discern. At the present time, in most of our States, these 
 questions are passed upon by a jury,- while the court still 
 judges of the law. In consequence, therefore, of the necessity 
 of drawing the line which separates law and fact, the difficul- 
 ties of the subject are considerably increased. We shall 
 discuss it in the following order : I. The Definition and 
 Nature of Legal Cruelty ; 11. Some Particular Propositions 
 connected with the General Doctrine ; III. The Relative Rights 
 and Duties of Husband and Wife ; TV. Cruelty by the Wife 
 to the Husband ; V. The Effect of 111 Conduct in the Com- 
 plaining Party ; VI. The Distinction between the Law and the 
 
 Evidence ou this Subject. 
 
 585 
 
§ 717 JUDICIAL DIVORCES. [BOOK VII. 
 
 I. The Definition and Nature of Legal Cruelty. 
 
 § 715. Views of the Definition — Some Forms of it. — It has 
 been found difi&cult for writers on the law, in any of its depart- 
 ments, to lay down definitions at once exact, comprehensive, 
 and neat, satisfying both the legal and literary taste, embracing 
 nothing which does not truly belong to the thing defined, 
 excluding nothing which does belong to it ; and the whole cut 
 at a single stroke from the quarry of legal truth, as though a 
 sculptor should bring forth a finished statue with one blow 
 like that wherewith Moses drew water from the rock. 'And of 
 those things in the law which require definitions, there is no 
 one more difficult to define than legal cruelty. In the first 
 and second editions of this work it was set down as being 
 " any conduct, in one of the married parties, which furnishes 
 a reasonable apprehension that the continuance of the cohabi- 
 tation would be attended with bodily harm to the other." In 
 the third edition, the definition was elongated thus : " Cruelty 
 is such conduct in one of the married parties as renders 
 further cohabitation dangerous to the physical safety of the 
 other, or creates in the other such reasonable apprehension of 
 bodily harm as materially to interfere with the discharge of 
 marital duty." 
 
 § 716. Continued. — Of these two definitions, the former is 
 the more neat, and the latter is the more exact. The change 
 was prompted by the desire to render more plain and certain 
 the line which divides conduct amounting to legal cruelty, 
 from conduct of the like nature and tendency falling short of 
 this. These varying definitions are in substance alike, and 
 they have received the commendation of eminent judges, in 
 cases to which the writer deems it not necessary to refer. 
 Proceeding now with the discussing of the subject, we shall, 
 among other things, make a third attempt at definition ; the 
 object still being to attain greater exactness. 
 
 § 717. Views of Cruelty as Ground of Divorce — How defined, 
 continued. — Cruelty, termed in the civil law, and sometimes 
 in the ecclesiastical, scevitia,^ is a ground of divorce from bed 
 and board, in England, and in some of our States ; while in 
 
 1 Holden v. Holden, 1 Hag. Con. 458, 4 Eng. Ec. 452. 
 586 
 
CHAP. XLIII.] 
 
 CRUELTY. 
 
 717 
 
 other States the divorce for this cause is from the bond of mat- 
 rimony. The courts have been cautious about laying down 
 any affirmative definition of this offence. Lord Stowell/ Sir 
 John Nicholl,^ and Dr. Lushington ^ have severally declined to 
 do so ; considering it more safe not to travel much beyond 
 negative descriptions. An examination of the authorities will, 
 however, show, that legal cruelty can be defined affirmatively 
 as well as many other things in the law to which affirmative 
 definitions are given ; not indeed in a few faultless words, 
 which carry entire precision and certainty, and mark the 
 boundary with unerring distinctness, but in terms sufficiently 
 accurate for most practical purposes. \ Cruelty, therefore, is 
 such conduct in one of the married parties as endangers, either 
 apparently or in fact, the physical safety or health of the 
 other, to a degree rendering it physically or mentally imprac- 
 ticable for the endangered party to discharge properly the 
 duties imposed by the marriage.* > The reader perceives, that. 
 
 1 Evans v. Evans, 1 Hag. Con. 35, 
 4 Eng. Eo. 310, 311. IiTairatheircase, 
 however, this eminent judge observed : 
 " The definition of legal cruelty is that 
 which may endanger the life or health 
 of the party. The complaint generally 
 proceeds from the wife as the weaker 
 person ; but it may come from the man, 
 and has so done in several cases ; but 
 generally the wife complains of what 
 is dangerous to her, on the showing of 
 which the court releases her from co- 
 habitation." Waring v. Waring, 2 
 Phillim. 132, 1 Eng. Ec. 210, 211 ; s. c. 
 2 Hag. Con. 153. 
 
 2 Westmeath v. Westmeath, 2 Hag. 
 Ec. Supp. 1, 4 Eng. Ec. 238, 270. 
 
 3 Neeld v. Neeld, 4 Hag. Ec. 263. 
 
 * Evans v. Evans, 1 Hag. Con. 35, 4 
 Eng. Ec. 310, 312. In Lockwood v. 
 Lockwood, 2 Curt. Ec. 281, 7 Eng. Ec. 
 114, 115, Dr. Lushington considered 
 the substance of the doctrine laid down 
 in Evans v. Evans, to be, that " there 
 must be either actual violence com- 
 mitted, attended with danger to life, 
 limb, or health, or there must be a rea- 
 sonable apprehension of such violence." 
 In the late case of Tomkins v. Tomkins, 
 1 Swab. & T. 168, 172, Cresswell, J., 
 
 said to the jury : " It will be for you, 
 on a consideration of the evidence you 
 have heard, to determine whether the 
 husband has so treated his wife and so 
 manifested his feelings towards her, as 
 to have inflicted bodily injury, to have 
 caused reasonable apprehension of 
 bodily suffering, or to have injured 
 health." See also, in support of the 
 definition given in the text, Harris v. 
 Harris, 2 Phillim. 11.1, 1 Eng. Ec. 204 ; 
 Bramwell v. Bramwell, 3 Hag. Ec. 618, 
 5 Eng. Ec. 232, 241, 242 ; Westmeath 
 V. Westmeath, 2 Hag. Eo. Supp. 1, 4 
 Eng. Ec. 238 ; Barlee v. Barlee, 1 Add. 
 Ec. 301, 305 ; Perry v. Perry, 2 Paige, 
 501; Whispell v. Whispell, 4 Barb. 
 217 ; Kenrick v. Kenrick, 4 Hag. Ec. 
 114, 129 ; Dysart v. Dysart, 1 Robert- 
 son, 470, 533, 546 ; Curtis v. Curtis, 1 
 Swab. & T. 192; Butler v. Butler, 1 
 Parsons, 329 ; Harratt v. Harratt, 7 N. 
 H. 196 ; D'Aguilar v. D'Aguilar, 1 Hag. 
 Ec. 773, 3 Eng. Eq. 329, 336 ; Kenley v. 
 Kenley, 2 How. Missis. 751; Small- 
 wood V. Smallwood, 2 Swab. & T. 397, 
 402 ; Smedley v. Smedley, 30 Ala. 714 ; 
 Sharman v. Sharman, 18 Texas, 521, 
 525 ; Mahone v. Mahone, 19 Cal. 626 ; 
 Morris v. Morris, 14 Cal. 76 ; Richards 
 587 
 
717 
 
 JUDICIAL DIVORCES. 
 
 [book VII. 
 
 in such a case, a separation becomes necessary ; consequently 
 the law, taking cognizance of the necessity, grants a divorce. 
 
 V. Richards, 1 Grant, Pa. 389 ; Everton 
 V. Everton, 5 Jones N. C. 202 ; Wand 
 V. Wand, 14 Cal. 512; Cole v. Cole, 23 
 Iowa, 433 ; Hughes v. Hughes, 44 Ala. 
 698; Powelson v. Powelson, 22 Cal. 
 358, 360 ; Davies u. Davies, 55 Barb. 
 130 ; 37 How. Pr. 45. In a Georgia 
 case, Warner, C. J., said : " Legal 
 cruelty may be defined to be such con- 
 duet on the part of the husband as will 
 endanger the life, limb, or health of 
 the wife, or create a reasonable appre- 
 hension of bodily hurt. What must be 
 the extent of the injury, or what par- 
 ticular acts will create a reasonable 
 apprehension of personal injury, will 
 depend upon the circumstances of each 
 case." Odom v. Odom, 36 Ga. 286, 
 _317;__Tlie^bpve:cited_case of Evans v. 
 Evans, decided by Lord Stowell in 
 1790, is one of the master-productions 
 of his luminous intellect. It has been 
 regarded ever since as tlie leading 
 authority on this subject, and has been 
 approvingly commented upon in almost 
 every subsequent decision, English or 
 American. The following most mate- 
 rial extract has, in this way, gained 
 almost the weight of a statute; and, 
 though the leading principles it en- 
 forces will be found interspersed 
 through the text of this chapter, it may 
 be profitably read here : " What is cru- 
 elty 1 In the present case It is hardly 
 necessary for me to define it.; because 
 the facts here complained of are such 
 as fall within the most restricted defini- 
 tion of cruelty ; they affect not only the 
 comfort, but they affect the health, and 
 even the life of the party. I shall, 
 therefore, decline the task of laying 
 down a direct definition. /This, how- 
 ever, must be understood, ttiat it is the 
 duty of courts, and consequently the 
 inchnation of courts^ to' keep the rule 
 extremely strict. The causes must be 
 grave and weighty, and such as show 
 an absolute impossibility that the duties 
 of the married life can be discharged. 
 In a state of personal danger no duties 
 can be discharged ; for the duty of self- 
 588 
 
 preservation must take place before 
 the duties of marriage, which are sec- 
 ondary both in commencement and in 
 obligation ; but what falls short of this 
 is with great caution to be admitted. 
 The rule of per quod consortium amititur, 
 is but an inadequate test ; for it still 
 emains to be inquired, what conduct 
 ought to produce that effect, whether 
 the consortium is reasonably lost, and 
 whether the party quitting has not too 
 hastily abandoned the consortium, ^hat 
 merely wounds the mental feelings is 
 in few cases to be admitted, where not 
 accompanied with bodily injury, either 
 actual or menaced?)? Mere austerity 
 of temper, petulance of manners, rude- 
 ness of language, a want of civil atten- 
 tion and acommodation, even occasional 
 sallies of passion, if they do not threaten 
 bodily harm, do not amount to legal 
 cruelty ; they are high moral offences 
 in the marriage state undoubtedly, not 
 innocent surely in any state of life, but 
 still they are not that cruelty against 
 which the law can relievoj^ Under 
 such misconduct of either of the par- 
 ties, for it may exist on one side as well 
 as on the other, the suffering party 
 must bear in some degree the conse- 
 quences of an injudicious connection; 
 must subdue by decent resistance or 
 by prudent conciliation ; and, if this 
 cannot be done, both must suffer in 
 silence. And if it be complained, that 
 by this inactivity of the courts much 
 injustice may be suffered, and much 
 misery produced, the answer is, that 
 courts of justice do not pretend to fur- 
 nish cures for all the miseries of human 
 life. They redress or punish gross vio- 
 lations of duty, but they go no further ; 
 they cannot make men virtuous ; and, 
 as the happiness of the world depends 
 upon its virtue, there may be much un- 
 happiness in it which human laws can- 
 not undertake to remove. Still less is 
 it cruelty, where it wounds not the 
 natural feelings, but the acquired feel- 
 ings, arising from particular rank and 
 situation ; for the court has no scale of 
 
CHAP. XLIII.J 
 
 CRUELTY. 
 
 §718 
 
 § 718. Effect of the Statutes on the Definition. — We have 
 seen, that, in tliis country, where we never had ecclesiastical 
 courts, all jurisdiction to grant divorces is Created by express 
 
 sensibilities by which it can gauge the 
 quantum of injury done and felt, and 
 therefore, though the court will not 
 absolutely exclude considerations of 
 that sort, where they are stated merely 
 as matter of aggravation, yet they can- 
 not -constitute cruelty where it would 
 not otherwise hare existed. Of course 
 the denial of little indulgences and par- 
 ticular accommodations, which the deli- 
 cacy of the world is apt to number 
 among its necessaries, is not cruelty. 
 It may, to be sure, be a harsh thing to 
 refuse the use of a carriage, or the use 
 of a servant ; it may in many cases be 
 extremely unhandsome, extremely dis- 
 graceful to the character of the hus- 
 band ; but the ecclesiastical court does 
 not look to such matters ; the great 
 ends of marriage may very well be car- 
 ried on without them ; and, if people 
 will quarrel about such matters, and 
 which they may do in many cases with 
 a great deal of acrimony, and some- 
 times with much reason, they yet must 
 decide such matters as well as they can 
 in their own domestic forum. These 
 are the negative descriptions of cruelty ; 
 they show only what is not cruelty, and 
 are yet perhaps the safest definitions 
 which can be given, under the infinite 
 variety of possible cases that may come 
 before the court. But if it were at all 
 necessary to lay down an afiirmative 
 rule, I take it that the rule cited by 
 Dr.,Bever from Clarke, and the other 
 books of practice, is a good general 
 outline of the canon law, the law of 
 this country, upon this subject. In the 
 older cases of this sort, which I have 
 had an opportunity of looking into, I 
 have observed that the danger of life, 
 limb, or health is usually inserted as the 
 ground upon which the court has pro- 
 ceeded to a separation. This doctrine 
 has been repeatedly applied by the 
 court in the cases that have been cited. 
 The court has never been driven off 
 this ground. It has been always jeal- 
 
 ous of the inconvenience of departing 
 from it, and I have heard no one case 
 cited, in which the court has granted a 
 divorce without proof given of a reason- 
 able apprehension of bodily hurt. I say 
 an apprehension, because assuredly the 
 court is not to wait till the hurt is act- 
 ually done ; but the apprehension must 
 be reasonable ; it must not be an appre- 
 hension arising merely from an exqui- 
 site and diseased sensibility of the 
 mind. Petty vexations applied to 
 such a constitution of mind may cer- 
 tainly in time wear out the animal 
 machine, but still they are not cases of 
 legal reUef ; people must relieve them- 
 selves "as well as they can by prudent 
 resistance, by calling in the succors of 
 religion and the consolation of friends ; 
 but the aid of courts is not to be re- 
 sorted to in such cases with any effect." 
 Evans v. Evans^l Hag. Con. 35, 4Eng. 
 Ec. 310, 311. ^I am tempted to say 
 here, as to this last point, that no mere 
 vexation, whether petty or great, should 
 be deemed sufficient in a case of cru- 
 elty ; still, on the other hand, if a man 
 has a wife of "diseased sensibilities," 
 he is not justified in treating her as he 
 might lawfully do if her sensibilities 
 were not diseased. In marriage, the 
 parties are required to consider each 
 other's natures, and especially their 
 diseases, whether of body or mind. » A 
 man whose wife is sick cannot justly 
 require her to work as he might do if 
 she were well. And this rule applies 
 to every thing else of the sort. A woman 
 of exquisite nerves, whether affected 
 by disease or not, is as much to be pro- 
 tected as the woman who is composed 
 of iron. A husband has no more right 
 to endanger the physical nature of the 
 former than of the latter. And every act 
 of cruelty is properly to be estimated 
 by its effect upon the particular person 
 on whom it is inflicted ; and this de- 
 pends as much on the peculiar quali- 
 ties of the person as on the act itself. 
 
 589 
 
§ 719 JUDICIAL DIVORCES. [BOOK VII. 
 
 statutes.! Tj^g words of the statutes giving a jurisdiction in 
 cases of cruelty differ in the respective States ; but, in legal 
 import, they are, with a few exceptions, substantially alilce. 
 Thus, the several phrases, " cruel, inhuman, and barbarous 
 treatment ; " ^ " extreme cruelty ; " » " cruel, barbarous, and 
 inhuman treatment ; " ^ " cruel and inhuman treatment," and 
 such conduct on the part of a husband toward his wife as ren- 
 ders it " unsafe and improper for her to cohabit with him ;" ° 
 " when the husband shall have, by cruel and barbarous treat- 
 ment, endangered his wife's life, or offered such indignities to 
 her person as to render her condition intolerable, and life bur- 
 densome, and thereby forced her to withdraw from his house 
 and family ; " ^ " intolerable cruelty ; " ' " cruelty of treat- 
 ment ; " ^ " extreme and repeated cruelty ; " ^ — are considered 
 to mean, either in substance or in exact outline, the same thing 
 as the scevitia, or cruelty, of the English ecclesiastical courts. 
 But the statutes of Texas, Louisiana, Arkansas, and perhaps 
 some other States, are in more comprehensive terms, and are 
 held to authorize a divorce for a degree of ill treatment insuffi- 
 cient in the ecclesiastical law.i" 
 
 §719. Apprehension of Danger — Quia Timet — Caution for 
 Future Good Conduct. — The reader perceives, from our defini- 
 tion of cruelty," that the object of judicial interference in this 
 
 , 1 Ante, § 71. The cruelty need not, under the Illi- 
 2 Finley v. Finley, 9 Dana, 52. This nois statute, be endured two years, 
 is cause for divorce from bed and board; though the words are, — " and for ex- 
 a wife may have a, divorce from the treme and repeated cruelty, and habit- 
 bond of matrimony where her hus- ual drunkenness for the space of two 
 band's " treatment to her is so cruel years." lb. See also, concerning the 
 and barbarous and inhuman as actually Illinois statute, Vignos v. Vignos, 15 
 to endanger her life." Thornberry v. 111. 186 ; Embree v. Embree, 53 111. 
 Thornberry, 2 J. J. Mar. 322. 394. 
 
 8 "Warren v. Warren, 3 Mass. 321 ; w Post, § 724. The Wisconsin stat- 
 
 Morris v. Morris, 14 Cal. 76. ute employs the words : " When the 
 
 * Moyler v. Moyler, 11 Ala. 620. treatment of the wife by the husband 
 
 5 Mason v. Mason, 1 Edw. Ch. 278. has been cruel and inhuman, whether 
 
 6 Butler V. Butler, 1 Parsons, 329. practised by using personal violence 
 See post, § 722, note ; Eshbach v. Esh- or by any other means ; ... or when 
 bach, 11 Harris, Pa. 343. his conduct toward her is such as may 
 
 ' Shaw V. Shaw, 17 Conn. 189. render it unsafe and improper for her 
 
 8 Coles V. Coles, 2 Md. Ch. 341 ; to live with him." As to the construc- 
 
 Daigeru. Daiger, 2 Md. Ch. 335; Tay- tion of which statute, see Johnson v. 
 
 man v. Tayman, 2 Md. Ch. 398 ; Bowie Johnson, 4 Wis. 135. And see Pillar 
 
 V. Bowie, 3 Md. Ch. 51. v. Pillar, 22 Wis. 668. 
 B Harman v. Harman, 16 111. 85. n Ante § 717 
 690 
 
CHAP. XLIII.] 
 
 CRUELTT. 
 
 §719 
 
 class «f cases is, in the main, to furnish protection and adjust 
 property rights in respect of the future ; in other words, to 
 prevent an apprehended harm. The divorce suit on this 
 ground is, in effect, a proceeding quia timet. The court inter- 
 feres, not so much to punish an offence already committed, as 
 to prevent the commission of one.^ Therefore Godolphin says : 
 " If, by reason of the cruelty of the husband, the wife shall 
 blamelessly flee from him ; and the husband shall offer sufifi- 
 cient security or caution for his future good behavior to her, 
 and her safety and peace with him, and the cruelty or ill-usage 
 not such but that by such caution the wife's peace and safety 
 may be undoubtedly secured ; and she, notwithstanding, refuse 
 to return, — in such case the law will not compel him to allow 
 her alimony." ^ Still there is no reported instance in modern 
 practice, wherein this principle has been carried to the extent 
 of discharging from the suit the husband on his producing. 
 
 ' 1 Harris v. Harris, 2 Piiillim. Ill, 1 
 Eng. Ec. 204; Bramwell v. Bramwell, 
 3 Hag. Ec. 618, 5 Eng. Ec. 232, 241, 
 242 ; Lockridge v. Lockridge, 3 Dana, 
 28 ; Rhame v. Rbame, 1 McCord Ch. 
 197 ; Dysart v. Uysart, 1 Robertson, 
 106, 139, 470, 540; Neeld v. Neeld, 4 
 Hag. Ec. 263, 268, 270; Stephens v. 
 Totty, Cro. Eliz. 908; Headen v. 
 Headen, 15 La. 61 ; Moyler v. Moyler, 
 11 Ala. 620 ; Harratt v. Harratt, 7 N. 
 H. 196 ; D'Aguilar v. D'Aguilar, 1 Hag. 
 Ec. 773, 3 Eng. Ec. 329 ; Lockwood v. 
 Lockwood, 2 Curt. Ec. 281, 7 Eng. Ec. 
 114 ; Morris v. Morris, 14 Cal. 76 ; 
 Wand V. Wand, 14 Cal. 512, 515. 
 
 2 Godol. Abr. 509; Ayl. Rarer. 59. 
 The South Carolina courts have held, 
 that a wife, who, on being ill used by 
 her husband, brings suit for alimony 
 (not a suit for divorce from bed and 
 board, but for alimony only), is not 
 obliged to go back to him on his offer- 
 ing to receive her and use her well, 
 unless the offer is made in good faith, 
 and under circumstances leading to the 
 reasonable belief that it will be fulfilled. 
 Threewits v. Threewits, 4 Des. 560 ; 
 Taylor v. Taylor, 4 Des. 167. See 
 also Jelineau v. Jelineau, 2 Des. 45. 
 The general principle was laid down 
 
 in a Virginia case, that the court will 
 not grant alimony to the wife (in the 
 peculiar suit called a suit for alimony), 
 if the husband offers in good faith to 
 receive her back, and treat her well. 
 The question in such a case would 
 seem to be, whether the court is sat- 
 isfied the offer will be really carried 
 into effect. Almond v. Almond, 4 
 Rand. 662. In New Jersey it is held, 
 that, if a wife leaves her husband in 
 consequence of his cruel treatment of 
 her, and afterward brings her bill for 
 divorce against him on the ground of 
 the cruelty, he cannot aid his defence 
 by serving notice on her, pending the 
 bill, to return. Graecen v. Graecen, 1 
 Green Ch. 459. See, also, Kinsey v. 
 Kinsey (cited in the next note), and 
 Thompson v. Thompson, 1 Yeates, 78 ; 
 2 Dallas, 128 ; Head v. Head, 3 Atk. 295 ; 
 Hansley «. Hansley, 10 Ire. 506. In 
 Kenley v. Kenley, 2 How. Missis. 751, 
 it was held, that, where a separate pro- 
 vision has been ordered for the wife, 
 on account of her husband's cruel 
 treatment, if he bona fide offers to co- 
 habit with her, and to treat her kindly 
 in the future, the separate maintenance 
 will be discontinued. 
 
 591 
 
§ 721 JUDICIAL DIVORCES. [BOOK VII. 
 
 during its pendency, security for his future good behavior. 
 And it has been distinctly laid down, that a mere offer of 
 amendment on the part of the husband will not necessarily 
 relieve him from the consequences following by law upon his 
 past cruelty.i i,i Scotland, by the old law, which accorded 
 herein with the canon law, it was a relevant defence for the 
 spouse accused of cruelty, on account of which a separation 
 was prayed, to offer caution for future good conduct, and this 
 remedy was sometimes ordered by the court ; but the practice 
 appears to have fallen into disuse.^ 
 
 § 720. Apprehension in Mind of Wife only — Degree of the 
 Danger ^ Reason for this Divorce. — From the foregoing propo- 
 sitions we see, that the divorce for cruelty has its foundation 
 in nature.^ Unjust and unnatural would it be to compel a wife 
 to continue a cohabitation which all persons could discern to 
 be attended with personal danger to her. And if she herself 
 were in fear, even though others were not fearful for her, and 
 if her fear had been brought on by the improper conduct of her 
 husband, reasonably leading to this result, nature would cry 
 out in her behalf, admonishing us, that, in this state of fear, 
 she could not discharge well the duties required of a wife ; 
 therefore she should be relieved fi-om them.* Still the duties 
 of wife may be done tolerably where there is great inquietude, 
 humanity dwells not on the earth in a state of perfection ; con- 
 sequently, in the language of Lord Stowell, the causes which 
 will justify this divorce must be " grave and weighty, and such 
 as show an absolute impossibility that the duties of the married 
 life can be discharged." ^ 
 
 § 721. The Two Questions. — When, therefore, we look at 
 this matter of cruelty in a philosophical way, two distinct ques- 
 tions present themselves ; namely. What is the nature of the 
 harm to be apprehended ? What acts must be done creating 
 the apprehension ? But practically we cannot well separate 
 these questions, so we shall content ourselves with discussing 
 some points severally connected with the two in succeeding 
 sections of this chapter. 
 
 ^ Kinsey v. Kinsey, 1 Yeates, 78. * And see Evans v. Evans, 1 Hag. 
 And see the last note. Con. 35, 4 Eng. Ec. 310, 811. 
 
 - 2 1 Fras. Dom. Rel. 463. 5 Evans v. Evans, supra. 
 
 3 Ayl. Parer. 229. 
 692 
 
CHAP. XLIII.J 
 
 CRUELTY. 
 
 §722 
 
 II. Some Particular Propositions connected with the Creneral 
 
 Doctrine. 
 
 § 722. Harm to be Bodily, not Mental. — The proposition 
 seems to be, on the whole, well established in England and in 
 most of our States, that the harm apprehended must be bodily 
 harm, in distinction from mental suffering.^ For while it is 
 admitted, that pain of mind may be even more severe than 
 bodily pain ; and a husband disposed to evil may create more 
 misery in a sensitive and affectionate wife, by a course of con- 
 duct addressed only to the mind, than if, in fits of anger, he 
 were to inflict occasional blows upon her person ; ^ still, it is 
 
 1 Harris v. Harris, 2 Phillim. Ill, 1 
 Eng. Ec. 204 ; Barlee v. Barlee, 1 Add. 
 Ec. 301, 305 ; Kirkman t.. Kirkman, 1 
 Hag. Con. 409, 4 Eng. Ec. 438 ; Oliver 
 V. Oliver, 1 Hag. Con. 361, 4 Eng. Ec. 
 429, 480; Chesnutt v. Chesnutt, 1 
 Spiuks, 196 ; Shaw v. Shaw, 17 Conn. 
 
 ercise mere tyranny, to utter constant 
 insult, vituperation, scornful language, 
 charges of gross oflences utterly ground- 
 less ; charges of this kind made before 
 her family, her children, her relations, 
 her friends, her servants ; insulting her 
 in the face of the world and of her own 
 
 189; Moyler v. Moyler, 11 Ala. 620; domestics, calling upon them to join in 
 Helms V. Eranciscus, 2 Bland, 544 ; those insults, and to treat her with con- 
 Boggess V. Boggess, 4 Dana, 307 ; Lu- tumely, and with scorn ; if such a case 
 cas V. Lucas, 2 Texas, 112 ; Kenley v. were to be made out, or, even short of 
 Kenley, 2 How. Missis. 751 ; Williams such a case, namely, injurious treat- 
 V. Fowler, McCleland & Younge, 269 ; ment which would make the marriage 
 Harwood v. Heffer, 3 Taunt. 420 ; state impossible to be endured, render- 
 Hughes V. Hughes, 19 Ala. 307 ; Dai- ing life itself almost unbearable, then I 
 ger V. Daiger, 2 Md. Ch. 335 ; Bowie think the probability is very high that 
 V. Bowie, 3 Md, Ch. 51. In a late Scotch the consistory courts of this country 
 case, before the House of Lords on would so far relax the vigor of their 
 appeal, Lord Brougham said of the negative rule, at present somewhat 
 English law on the point in the text : vague, as to extend the remedy of a 
 " There is so much dictum, there are divorce a mensa et thoro to a case such 
 so many opinions or inclinations of as I have put." Paterson v. Paterson, 
 opinions ventilated, which have a ten- 7 Bell Ap. Cas. 337, 366, 12 Eng. L. & 
 dency to go further, that, if a case Eq. 19, 30. I am afraid Lord Brougham 
 were to arise such as that which the was mistaken about there being even 
 ingenuity of some of the learned judges dicta, to any great extent, in favor of 
 in Scotland supposed, I have very little these views. At any rate, there are 
 doubt that we should find the rule con- many dicta the other way ; a specimen 
 siderably extended, and that that which of which may be found in the still later 
 only now rests upon opinions, more English case of C. v. C, 28 Eng. L. & 
 or less distinctly expressed in the shape Eq. 603, 605. And see Milford v. Mil- 
 of dicta, would assume the form ulti- ford, Law Eep. 1 P. & M. 295. But 
 mately of decision ; namely, that, if we are here supposing, the reader 
 the husband, without any violence or should observe, that tlie mental suffer- 
 threat of violence to the wife, without ing does not also affect the health of 
 any maltreatment endangering life or the body. 
 
 health, or leading to an apprehension 2 gee ante, § 40, 41. And see the 
 
 of danger to life or health, were to ex- observations of Sir John NichoU, in 
 VOL. I. 38 593 
 
§723 
 
 JUDICIAL DIVOECBS. 
 
 [book VII. 
 
 said, that, in such a case, " the court has no scale of sensibili- 
 ties by which it can gauge the quantum of injury done and 
 felt." ^ The rule, therefore, seems to have arisen, not from 
 any notion of its inherent justice, but from the difficulty of 
 practically administering the' opposite rule, of regarding the 
 mind the same as the body.^ 
 
 Durant v. Durant, 1 Hag. Eo. 733, 3 
 Eng. Ec. 310, 327, 328. " There are 
 other sufferings," observes Dewey, J. 
 in Pidge v. Pidge, 3 Met. 257, 261, 
 " not less intense than those occa- 
 sioned by bodily wounds. Angry 
 words, coarse and abusive language, 
 grossly intemperate habits, might bring 
 greater sufferings upon a refined and 
 delicate woman, than a single act of 
 violence upon her person." 
 
 1 Lord Stowell, in Evans v: Evans, 
 1 Hag. Con. 35, 4 Eng. Ec. 310, 311. 
 And see Cheatham v. Cheatham, 10 
 Misso. 296. In the Supreme Court of 
 Pennsylvania, and with reference to 
 the statute of that State providing for 
 a divorce where the husband shall offer 
 to the wife " such indignities to her 
 person as to render her condition in- 
 tolerable and her life burdensome," 
 Coulter, J. observed : " To render the 
 condition of a wife intolerable, and her 
 life burdensome, it is not necessary 
 that there should be blows, or cruel 
 and barbarous infliction of batteries 
 that endanger her life. There may, 
 without that, be such indignities to 
 her person as to render her life a bur- 
 den. The husband is bound to the 
 observance of duty to his wife ; and 
 as ^marriage is founded on the original 
 constitution of the sexes, and dignified 
 by strong and peculiar sentiments of 
 affection, delicacy, and honor, all treat- 
 ment which violates these principles, 
 habitually and constantly, and pro- 
 ceeds avowedly from hatred, revenge, 
 and spite, and which renders even the 
 hours devoted to repose hours of weep- 
 ing and distress, must render a woman's 
 condition intolerable, and her life bur- 
 densome. Yet all these, and more, 
 were present at this ill-fated marriage, 
 to induce the libellant to seek peace 
 
 594 
 
 in the dissolution of a contract which 
 the respondent admitted was entered 
 into on his part to revenge former 
 slights, or rejections of his suit." Elmes 
 V. Elmep, 9 Barr, 166. It is presumed, 
 however, that the court did not fully 
 intend ta establish a doctrine variant 
 from the English rule; for nothing 
 other than the above language appears 
 in the report indicating such a conclu- 
 sion. And a few months later the 
 Court of Common Pleas of the same 
 State affirmed, under the statute, the 
 English rule, in a case which was ably 
 discussed at the bar, and much con- 
 sidered by the judges. Butler v. But- 
 ler, 1 Parsons, 329. . So, under a similar 
 statute, did the Court of Appeals of 
 Kentucky, Finley v. Einley, 9 Dana, 
 82. See also Mayhugh u. Mayhugh, 
 7 B. Monr. 424; Thomberry v. Thorn- 
 berry, 2 J. J. Mar. 322; Jelineau v. 
 Jelineau, 2 Des. 45. 
 
 2 Dr. Lushington, in 1854, stated the 
 matter thus : " If it be said that the con- 
 sequences to the wife [in a case where 
 no direct bodily injury was threatened 
 or suffered, but there was great harsh- 
 ness of language and conduct, arising 
 from drunkenness] are mental suffering 
 and bodily ill-health, . . . the same 
 might be said of other vices ; of gaming, 
 for instance ; of gross extravagance, to 
 the ruin of a wife and family ; — all 
 these might occasion great mental suf- 
 fering, and, consequent thereon, bodily 
 ill-health to the wife ; but they do not 
 constitute legal cruelty. Such con- 
 sequences, to be .the subject of legal 
 redress, must emanate from bodily ill- 
 treatment, or threats of the same. 
 Such I apprehend to be the clear line 
 of distinction drawn by all the author- 
 ities." Chesnutt v. Chesnutt, 1 Spinks, 
 196, 198 ; s. o. nom. C. v. C, 28 Eng. 
 
CHAP. XLIII.] CRUELTY. § 724 
 
 § 723. Views of Continental Lawyers — Scotch. — The rule 
 mentioned in our last section, of limiting the divorce to cases 
 in which the danger extends to the body, in distinction from 
 the mind, appears not to be in accordance with the views of the 
 jurists of continental Europe ; while in Scotland the more en- 
 larged rule, of regarding the mental suffering and danger 
 equally with the physical, has struggled also for a doubtful 
 existence. Thus, in Scotland, where a husband publicly 
 and perseveringly reproached his wife, falsely, with lascivious 
 behavior and immoderate lust, the Commissaries and the Court 
 of Session held this to be a sufficient ground for a judicial 
 separation ; but the House of Lords reversed the decision.^ In 
 subsequent cases, however, opinions have been indicated by 
 the Scotch courts to the effect, that a course of harsh and con- 
 tumelious usage — which might be practised without any per- 
 sonal violence, and be more harassing to tiie feelings and more 
 insupportable than personal violence offered in the heat of 
 passion — would be sufficient.^ The latter opinion, indeed, 
 appears to have received countenance in the House of Lords ; ^ 
 but, in a comparatively recent cage, this tribunal, on a Scotch 
 appeal, went far to shake the doctrine ; * and we may not be 
 able, on the whole, to say precisely what is the present Scotch 
 law relating to this point.^ 
 
 § 724. Louisiana — Texas — " Excesses," " Outrages," &c. — In 
 Louisiana, the code of which State provides for a divorce from 
 bed and board for excesses, cruel treatment, and outrages of 
 such a nature as to render the living together of the parties 
 insupportable, it is held, that " a series of studied vexations 
 and provocations on the part of a husband, without ever resort- 
 ing to personal violence, might constitute that degree of cruel 
 treatment and outrage which would form a just ground for a 
 separation from bed and board." ^ And in Texas, a similar 
 
 L. & Eq. 603. But we shall by and by * Paterson v. Paterson, 7 Bell Ap. 
 
 see, that, when the bodily health does Cas. 337. 
 
 suffer, the court interferes, though there * See 45 Law Mag. 61, where, how- 
 is no direct or otherwise indirect physi- ever, the views of the writer are hardly 
 cal injury threatened. borne out by the cases he cites. And 
 
 1 Leckie v. Moir, A. d. 1750. See see Fulton v. Fulton, 12 Scotch Sess. 
 
 1 Fras. Dom. Eel. 456. Cas. 1104. 
 
 ^ 1 Fras. Dom. Eel. 456. " Tourne v. Tourne, 9 La. 452, 456. 
 
 3 Arthur v. Gourlay, 2 Paton, 184. Of course, blows inflicted on the wife 
 
 695 
 
§ 725 JUDICIAL DIVORCES. [bOOK VII. 
 
 statute, authorizing a divorce from the bond of matrimony, has 
 received substantially the same construction. ^ Yet even in 
 Texas it was decided, that occasional sulkiness, a gadding dis- 
 position, and so much inattention to appropriate duties as to 
 compel the husband in one instance to mend his own coat, are 
 not adequate ground.^ Neither is the commission of theft, 
 forgery, or other crime, sufficient ; since this is an infraction 
 of the husband's duties to society, not an outrage inflicted par- 
 ticularly upon the wife.^ 
 
 § 725. How in Principle. -^ When we look at the point now 
 under consideration in the light rather of legal principle than 
 of precise legal autliority, we are led into the following obser- 
 vations: Starting from the proposition already mentioned,* that 
 the divorce suit for cruelty has its foundation in nature, since 
 nature does not allow to woman the capacity of discharging 
 well the duties of wife while she is in bodily fear, — we proceed, 
 by only a single step, to the further proposition, resting as com- 
 pletely in nature as the other, that the woman whose soul is 
 continually wrung with anguish by the hands of her husband, 
 cannot, whatever she may ^esire, discharge to him well the 
 duties of wife. And if she cannot, then nature demands her 
 freedom from the obligation to do the impossible thing. And 
 although the court may not, as Lord Stowell said, have " any 
 scale of sensibilities by which it can gauge the quantum of 
 injury done and felt," ^ it may sometimes perceive that it is 
 greater than can be practically endured, as well when it is 
 made to fall on the mind as on the body. In the latter instance, 
 the court may doubt whether it is sufficiently heavy to demand 
 judicial relief; it can no more than doubt in the former. And 
 whether the injury is of one sort or another, the court must be 
 made affirmatively to perceive that it exists in fact, and is suf- 
 
 by the husband are sufficient. Armant ^ L^^as v. Lucas, 2 Texas, 112; 
 
 V. Her Husband, 4 La. Ann. 1^7. It is Wright v. Wright, 6 Texas, 3 ; Sher- 
 
 the same substantially in Arkansas, man v. Sherman, 18 Texas, 521, 525. 
 
 Rose V. Rose, 4 Eng. 507 ; and in Mis- As to the Texas law, see, further, Tay- 
 
 souri. Bowers v. Bowers, 19 Misso. 351. lor v. Taylor, 18 Texas, 574 ; Camp v. 
 
 1 Shreck v. Shreok, 32 Texas, 578. Camp, 18 Texas, 528. 
 
 2 Sheffield v. Sheffield, 3 T«xas, 79; < Ante, § 720. 
 Byrne v. Byrne, 3 Texas, 836, 340 ; 5 Ante, § 722 
 Wright V. Wright, 6 Texas, 3; Nogees 
 
 V. Nogees, 7 Texas, 538. 
 
 596 
 
CHAP. XLIII.] CRUELTY. § 726 
 
 ficient in degree, before it can grant the remedy. " If it be 
 true," said Perkins, J., in an Indiana case, " that we are pos- 
 sessed of social, moral, and intellectual natures, with wants to 
 be supplied, with susceptibilities of pain and pleasure ; if they 
 can be wounded and healed, as well as the physical part, with 
 accompanying suffering and delight, then, we think, that con- 
 duct wliich produces perpetual social sorrow, although physical 
 food be not withheld, may well be classed as cruel, and entitle 
 the sufferer to relief. And in point of fact we have no doubt, 
 that mere cold neglect has sent broken-hearted to the grave 
 hundreds of wives, where the dagger, poison, and purposed 
 starvation have sent one. Men generally supply a sufficiency 
 of food to their brute animals." ^ The doctrine suggested in 
 this section is not opposed by the peculiar language of our 
 statutes generally. The term cruelty, if it means simply what 
 it means in the English law, still embraces whatever a true 
 construction of the English law implies ; though modern Eng- 
 lish judges should be found to have narrowed its exposition, 
 contrary to its inherent and original signification. If, again, 
 the term, as employed in our statutes, is to have its popular 
 exposition, then plainly it extends as far as is herein intimated. 
 For, in popular phrase, men are often cruel to their wives, 
 though neither inflicting nor threatening blows. 
 
 § 726. Mental Injury as aiding Bodily. — Still, assuming 
 cruelty to exist only where there is either actual or threatened 
 bodily harm, if a wife has shown that her husband has been 
 guilty of acts tending to her bodily harm, she may then, from 
 this foundation, introduce evidence of what is addressed only 
 to the mind ; for example, language and conduct designed to 
 wound her feelings ; ^ though the precise limit of this rule 
 appears not to be very clearly defined. Thus a groundless and 
 malicious charge against her chastity, or of incest,^ when the 
 foundation for this evidence is so laid, is considered a gross act 
 of cruelty, and almost sufiBcient of itself;* though we have 
 
 1 Rice V. Rice, 6 Ind. 100, 105. 3 Qale v. Gale, 2 Robertson, 421. 
 
 2 Whispell V. Whispell, 4 Barb. 217 ; So, generally, a charge of any crime. 
 Moyler v. Moyler, 11 Ala. 620 ; Saun- Nogees v. Nogees, T Texas, 538. 
 
 ders V. Saunders, 10 Jur. 143, 144. And * Durant v. Durant, 1 Hag. Ee. 733, 
 see Evans v. Evans, 1 Hag. Con. 35, 769, 3 Eng. Ec. 310, 328; Bray v. Bray, 
 4 Eng. Ec. 310, 327. 1 Hag. Ec. 163, 3 Eng. Ec. 76 ; Otway 
 
 597 
 
§727 
 
 JUDICIAL DIVORCES. 
 
 [book VII. 
 
 seen that, standing quite alone, it is no cause for divorce.^ 
 And Dr. Lusliington has observed, that foul and disgraceful 
 language, addressed by the husband to his wife, " 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 per- 
 sonal violence ; for it would manifest a total want of self-com- 
 mand, and the absence of all controlling principle." ^ So the 
 habit of the husband to abuse his wife,^ and his ordinary tem- 
 per,* are important on the question of his cruelty. 
 
 § 727. Continued. — Dr. Lushington, while considering the 
 
 V. Otway, 2 PhilUm. 95, 1 Eng. Ec. 200 ; 
 Mayhugh v. Mayhugh, 7 B. Monr, 424 ; 
 Whispell V. "Whispell, supra ; Jelineau 
 V. Jelineau, 2 Des. 45; Kirkman v. 
 Kirkman, 1 Hag. Con. 409, 4 Eng. Ec. 
 438; Tule v. Yule, 2 Stock. 138; 
 Sharp V. Sharp, 2 Sneed, 496 ; Collins 
 V. Collins, 29 Ga. 517 ; Cartwright v. 
 Cartwright, 18 Texas, 626. But see 
 Shaw V. Shaw, 17 Conn. 189, 194. In 
 a New Jersey case, the Chancellor ob- 
 served : " The complainant alleges, that 
 her husband, for the purpose of laying 
 a foundation of a divorce from her, ne- 
 gotiated a plan with one Alexander 
 Dawson, hy which he, Dawson, after 
 his wife had gone -to bed, was to go in 
 her room, and get into her bed, and 
 then witnesses were to be introduced 
 into the room suddenly, and detect him 
 in that position. If this charge be true, 
 a more base attempt to ruin the char- 
 acter of his wife could not be con- 
 ceived of, and shoul(^for ever absolve 
 her from all further obligations to him." 
 Graecen v. Graecen, 1 Green Ch. 459. 
 Indeed, the Texas court seems to re- 
 gard a charge of adultery by the hus- 
 band against the wife, if groundless and 
 malicious also, to be sufSeient cruelty 
 to authorize the divorce Pinkard v. 
 Pinkard, 14 Texas, 356. And see 
 Sheffield v. Sheffield, 3 Texas, 79, 84; 
 Atkins V. Atkins, post, § 729, note. In 
 a late English case, the judge ordinary, 
 Cresswell, seems to have regarded as 
 of little weight the groundless charge 
 of adultery ; but there the husband 
 plainly beUeved it at the time, and ex- 
 pressed regret for his conduct after- 
 
 698 
 
 ward. Smallwood v. Smallwood, 2 
 Swab. & T. 397. When, in a later case 
 before the English Divorce Court, it 
 appeared that the husband had so con- 
 ducted toward his wife in the street as 
 to have her taken by a passer-by for 
 a prostitute, — he had, indeed, assaulted 
 her, but no injury was suffered from 
 the assault, — this, as the leading fact 
 in a case of general ill conduct, was 
 accepted as adequate foundation for a 
 divorce. Lord Penzance observed : 
 " A man who has insulted his wife l)y 
 treating her in the street like a com- 
 mon prostitute is guilty of at least as 
 great an indignity as if he had spat in 
 her face. I can imagine nothing more 
 insulting or shocking to a woman of 
 proper feeling than being so treated. 
 .... It is a case of the grossest and 
 most abominable cruelty." Milner v. 
 Milner, 4 Swab. & T. 240. In such a 
 ease there is, of course, physical danger 
 created ; because she may be arrested 
 as a street walker. But the reader 
 cannot fail to see, that, in these cases, 
 the court merely seizes upon a technical 
 and incidental matter to get round the 
 rule which holds mere apprehended 
 mental suffering to be insufficient. 
 
 1 Ante, § 722-725. And see Lewis 
 V. Lewis, 6 Misso. 278; Cheatham v. 
 Cheatham, 10 Misso. 296. 
 
 2 Dysart v. Dysart, 1 Eobertson, 
 106, 117, 121; Whispell c. Whispell, 
 supra. 
 
 s Otway V. Otway, 2 Phillim. 95. 
 * Westmeath v. Westmeath, 2 Hag. 
 Ec. Supp. 1, 4 Eng. Ec. 238, 283, 293. 
 
CHAP. XLIII.] CRUELTY. § 727 
 
 matter of the admissibility of a wife's libel charging cruelty, 
 after stating the general law of this offence, and observing, that, 
 " in these 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 ; secpndly, threats, of such 
 a description as would reasonably excite, in a mind of ordinary 
 firmness, a fear of personal injury," — added : " Wlien facts of 
 tlie description to which the court has adverted are admitted to 
 proof, it is perfectly consistent with the principles already men- 
 tioned, that minor circumstances should be also admitted ; 
 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 these circum- 
 stances must not be light or trifling ; they should be of the 
 same character as the principal charges, though not to the same 
 extent." ^ It should be observed, however, that the leai'ned 
 judge was here considering the allegations which may be intro- 
 duced into the libel, not the facts provable outside the allega- 
 tions. For the court may consider and give weight to matters 
 not pleaded, though they cannot' be the foundation, or only 
 ground, for the divorce.^ And in a later case the same learned 
 judge observed : " The whole character and conduct of the 
 parties have been, and ever must be, in all these cases, neces- 
 sary 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 
 occurrences, and the probability of future conduct, if the parties 
 are to live together." ^ 
 
 1 Neeld v. Neeld, 4 Hag. Ec. 263, 785; ante, § 719. In one case, Dr. 
 266. And see C. v. C, 28 Eng. L. & Eq. Lushington complained of the incom- 
 603, 605 ; s. o. nom. Chesnutt v. Ches- pleteness of the evidence, as follows : 
 nutt, 1 Spinks, 196 ; Gale o. Grale, 2 " The evidence affords very little, iu- 
 Eobertson, 421. deed I may say no information as to 
 
 2 Carpenter v. Carpenter, Milward, the terms on which these parties lived, 
 159; Whispell v. Whispell, 4 Barb, till shortly before the separation. No 
 217. relations, who associated with them, 
 
 3 Dysart v. Dysart, 1 Robertson, are produced ; no friends ; and only 
 106, 141. See also D'Aguilar v. D'Agui- one servant. The court is deprived, 
 lar, 1 Hag. Ec. 773, 774, note, 3 Eng. in this case, of the advantage it sorae- 
 Ec. 329, 331 ; Reese v. Reese, 23 Ala. times possesses, of tracing the course 
 
 699 
 
729 
 
 JUDICIAL DIVORCES. 
 
 [book VII. 
 
 § 728. Life, Limb, or Health. — The physical danger, justifying 
 a divorce, may be danger either to the life or limb, such as of 
 blows, poisoning, or the like ; ^ or danger merely to the health.^ 
 The only qualification required is, that it be sufficient in degree. 
 
 § 729. Nature of Conduct as importing Danger — Threats — 
 Blows — (Atkins V. Atkins, in the Note). — So the kind of con- 
 duct importing danger is immaterial ; for whatever tends to 
 the bodily harm of the injured party, and so renders cohabita- 
 tion unsafe, is legal cruelty .^ Thus, though the court will not 
 interfere on account of violent, abusive, and insulting language 
 employed by the husband toward his wife, while her personal 
 safety is not endangered ; * yet, if there are words of menace 
 likely to be carried into effect, they will be sufficient ; ^ for 
 " assuredly," says Lord Stowell, " the court is not to wait till 
 the hurt is actually done." ^ There is an early Massachusetts 
 case in which the court is reported to have said : " Threats of 
 violence, without an actual assault, are not a legal cause for 
 divorce. The wife's remedy in such a case is by exhibiting 
 articles of peace against her husband."^ But many of the 
 
 of connubial cohabitation, and so form- 
 ing a more accurate judgment upon 
 the evidence as to particular facts." 
 Chesnutt v. Chesnutt, 1 Spinks, 196, 
 197 ; s. c. nom. C. v. C, 28 Eug. L. & 
 Eci. 603. 
 
 1 Ayl. Parer. 228; Stephens v. 
 Totty, Cro. Eliz. 908. 
 
 2 See cases cited, ante, § 717, 719, 
 722. 
 
 3 Holdeu V. Holden, 1 Hag. Con. 
 453, 4 Eng. Ec. 452, 454. 
 
 * See Vignos v. Vignos, 15 111. 186 ; 
 Eshbacli v. Eshbach, 11 Harris, Pa. 843, 
 345; Richards v. Richards, 1 Grant, 
 Pa. 389. 
 
 5 Harris v. Harris, 2 PhUlim. Ill, 1 
 Eng. Ec. 204 ; Oliver v. Oliver, 1 Hag. 
 Con. 361, 4 Eng. Ec. 429, 430 ; Beebe 
 V. Beebe, 10 Iowa, 133. Dr. Radcliflf 
 says : " Words of menace may be merely 
 the language of passion, or they may 
 be the expression of determined malig- 
 nity, which, if likely to be carried into 
 effect, may warrant the court to inter- 
 pose to prevent the actual mischief 
 threatened." Carpenter v. Carpenter, 
 Milward, 159. 
 
 600 
 
 " Evans v. Evans, ante, § 717, note. 
 
 7 Hill V. Hill, 2 Mass. 150. In this 
 same case, " Curia " is also reported 
 to have observed : " In a libel for di- 
 vorce from bed and board only, you 
 have no occasion to prove a marriage, 
 unless it be denied;" and. these two 
 blunders comprise the whole case. 
 The presumption clearly is, that it is 
 not correctly reported. In Warren v. 
 Warren, 3, Mass. 321, Parsons, C. J. is 
 reported to have said : " The extreme 
 cruelty of the statute means personal 
 violence, and answers to the smvitia of 
 the civil law." By the words "per- 
 sonal violence," he must have intended 
 physical injuries apprehended, as well 
 as actual; for else it would not in any 
 proper sense " answer to the scevitia of 
 the civil law." If a wife has exhibited 
 articles of peace against her husband, 
 and he is under bonds to keep the 
 peace, she may still proceed against 
 him for a divorce. So likewise she 
 may, though she has been living for a 
 considerable time separate from him. 
 Hulme V. Hulme, 2 Add. Be. 27, 2 
 Eng. Ec. 208. 
 
CHAP. XLIII.] 
 
 CRUELTY. 
 
 729 
 
 early Massachusetts decisions are loosely reported ; and we can 
 hardly presume the court, in this one, intended to lay down a 
 rule in opposition to the concurrent judicial opinion of the 
 entire world besides. Or, if it did so intend, the observation is 
 but little more than dictum ; and, if so interpreted, it is not 
 now law in Massachusetts. ^ 
 
 1 Bailey v. Bailey, 97 Mass. 373. 
 The case of Atkins v. Atkins, decided 
 by the Massachusetts Supreme Judicial 
 Court, March T. 1849, shed an earlier 
 light upon this question ; and it is im- 
 portant in other aspects. It is not 
 found in the regular reports ; but the 
 following emended newspaper report 
 of it is considered, by the learned judge 
 who delivered orally the opinion of the 
 court, to be in substance correct. 
 
 " Wilde, J. entered a decree, grant- 
 ing a divorce from bed and board ac- 
 cording to the prayer of the wife, sub- 
 stantially upon thefoUowing grounds: — 
 " The facts in this case are briefly 
 these : The parties have been married 
 but a few months ; the age of the hus- 
 band is sixty years, and of the wife 
 only twenty-two, a disparity of years 
 which generally, as in the present in- 
 stance, leads to unhappiness. After 
 they had lived together some four 
 months, the husband 'took the fancy 
 into his head, without any provoca- 
 tion whatever,' that his wife was un- 
 faithful. He used on various occasions 
 abusive language to her, calling her a 
 'prostitute,' accusing her of -criminal 
 connection with a young man by the 
 name of Wigglesworth ; and these cal- 
 umnies he also asserted to other persons. 
 He also used toward the libellant per- 
 sonal violence on several occasions, 
 . shaking his fist in her face, accompa- 
 nied with the violent language above 
 stated, attempting to drive her out of 
 the house ; on one occasion, too, he 
 seized her violently by the arm for the 
 purpose of expulsion. 
 
 " I have considered this case very 
 carefully, and, at the suggestion of the 
 counsel for the respondent, I have con- 
 sulted with my brethren of the bench 
 (except Fletcher, J. who was absent), 
 
 and they concur in the opinion I am 
 about to pronounce. 
 
 " Several English decisions have 
 been cited by the defendant to show, 
 that the above facts would not author- 
 ize a divorce. Sir WiUiam Scott has 
 said : ' Mere austerity of temper, rude- 
 ness of manner, which wound the men- 
 tal feeliAgs, unless they place the wife 
 in peril of bodily harm, cannot sustain 
 a libel for divorce from bed and board.' 
 Sir John NichoU says : ' The causes of 
 divorce must be grave and weighty; 
 there must be danger of bodily harm, 
 and reasonable apprehension of per- 
 sonal injury, so as to render cohabita- 
 tion unsafe ; in one word, there must 
 be scevitia in a legal sense to substan- 
 tiate a libel for separation.' Now there 
 are some points of difference between 
 the law of divorce as established in 
 England and in this Commonwealth. 
 Eor instance, in England adultery is 
 not cause for a divorce from the bond 
 of matrimony ; and one witness uncor- 
 roborated is not suflScient to establish 
 any fact in evidence. By the old Eng- 
 Ush law, too, and perhaps, by the mod- 
 ern, a husband may chastise his wife 
 ■for her faults. Chancellor Walworth 
 has well said of such corporeal correc- 
 tion that it is not authorized by the 
 laws of any civilized country : not in- 
 deed meaning that England is not civ- 
 ilized, but referring to the anomalous 
 relics of barbarism which cleave to her 
 jurisprudence. I suppose, therefore, 
 that more flagrant instances of abuse 
 would be requisite to sustain a libel for 
 divorce from bed and board in Eng- 
 land than in this country. Yet so far 
 as the present case is affected, the law 
 of the two countries is substantially 
 the same. The law does not require 
 many acts of cruelty ; one is enough, 
 
 601 
 
§730 
 
 JUDICIAL DIVORCES. 
 
 [book VII. 
 
 § 730. Conlf nued. — Need be no Actual Violence. — What was 
 properly meant by the Massachusetts court in this somewhat 
 doubtful decision, is, that meaningless threats of violence, 
 not intended really to be executed, and not understood by the 
 wife as endangering her personal safety ,i are insufficient to 
 justify alone a divorce for cruelty. That violence actually exe- 
 cuted is not necessary is as firmly established as any principle 
 of law can be, in England,^ Ireland,^ Scotland,* and our States 
 generally ; ^ while in Scotland and continental Europe even less 
 is required.^ The old common-law illustration of cruelty is an 
 
 if it induces the court to think that the 
 wife iB in danger of bodily harm. 
 Neither need the wife be wholly with- 
 out blame. There are several cases 
 of divorce from bed and board in the 
 reports of this court. It has been held, 
 that threats of violence alone, where 
 there is no danger of bodily harm, are 
 insufficient. It has been held, 4 Mass. 
 587, that, when force and violence have 
 been once used, the wife is unsafe. I 
 have decreed a divorce in Middlesex, 
 where the husband accused the wife 
 of adultery and locked her up. In 
 Poor V. Poor, 8 N. H. 307, 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 insecurity of the 
 wife. 
 
 " Such is the state of the law : it is 
 only neeessary 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 reason. Wigglesworth, among 
 others, testified that he had very little 
 acquaintance with the wife; that she 
 was a reserved, modest woman. This 
 jealousy brings on paroxysms of pas- 
 sion. All this occurs soon after the 
 marriage. Surely jealousy is one of 
 the strongest passions which can actu- 
 ate man. No wife would be safe un- 
 der the accusation of adultery, accom- 
 panied by paroxysms of passion and 
 menaces of violence. Besides, in the 
 present case, there is evidence of vio- 
 lence actually used. 
 
 602 
 
 " 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 respon- 
 dent." 
 
 1 Threats of this kind are insuffi- 
 cient. Shell V. Shell, 2 Sneed, 716 
 Breinig v. Meitzier, II Harris, Pa. 156 
 
 2 Harris v. Harris, Evans v. Evans 
 OUver V. Oliver, and Holden v. Holden, 
 cited ante, § 729 ; D'Aguilar v. D'Agui- 
 lar, I Hag. Ec. 773, 3 Eng. Ec. 329 
 Westmeath v. V^estmeath, 2 Hag. Ec 
 Supp. 1, 4 Eng. Be. 238, 270; Kirk 
 man v. Kirkman, 1 Hag. Con. 409, 4 
 Eng. Ec, 438; Holden v. Holden, 1 
 Hag. Con. 453, 4 Eng. Ee. 452, 454; 
 Otway V. Otway, 2 Phillim. 95, 1 Eng. 
 Ec. 200; Ayl. Parer. 228; Stephens v. 
 Totty, Cro. Eliz. 908; HouHston v. 
 Smyth, 2 Car. & P. 22, 29. 
 
 3 Carpenter v. Carpenter, Milward, 
 159. 
 
 * 1 Eras. Dom. Eel. 454 ; Maclellaud 
 V. Eulton, cited Eerg. Consist. Law, 
 185. 
 
 5 Rhame u. Rhame, 1 McCord Ch. 
 197 ; Mason v. Mason, 1 Edw. Ch. 278 ; 
 Harratt v. Harratt, 7 N. H. 196 ; Butler 
 V. Butler, 1 Parsons, 329 ; Jelineau v. 
 Jehneau, 2 Des. 45 ; Graecen v. Grae- 
 cen, 1 Green Ch. 459 ; Breinig v. 
 Meitzier, 11 Harris, Pa. 156; Hughes v. 
 Hughes, 19 Ala. 307 ; Beebe v. Beebe, 
 10 Iowa, 138 ; Caruthers u. Caruthers, 
 13 Iowa, 266. 
 
 6 Ante, § 728. 
 
CHAP. XLTII.] CRUELTY. § 731 
 
 attempt to poison ; " if the husband does by poison, or any 
 other severe usage, lay snares against his wife's life ;" i where 
 actual violence, of course, is not presumed. And where words 
 of menace are the ground of the suit, they need not appear to 
 have been addressed to or in the presence of the wife ; the test 
 Is, whether they excite a reasonable apprehension of bodily 
 harm ; and Lord Stowell has observed, " They carry with them 
 something of additional strength if they raise apprehension in 
 others, for that shows the wife was not alarmed upon any un- 
 reasonable grounds." ^ 
 
 § 731 1 Mental Suffering resulting in BodUy His. — We have 
 seen ,3 that, in matter of legal principle, if the harm does not 
 extend beyond the mind to the endangering of the body, but 
 still is of such a nature and is so severe as utterly to dis- 
 qualify the party frcfm performing the duties enjoined by the 
 marriage, it should properly lay the foundation for a divorce. 
 But as the authorities do not generally sustain this proposition 
 in point of adjudication, the inquiry arises, supposing the harm 
 must be bodily, and remembering how intimately the body 
 sympathizes with the mind, how sorrow of soul often works 
 sickness in the physical nature, and how other passions some- 
 times deprive the body of its life, — if in a particular case it is 
 shown that the conduct of a party is such as, while addressed 
 only to the mind, results in actual or threatened deprivation of 
 health, is it then sufficient ? A statute of Kentucky having 
 authorized the courts to divorce the husband from the wife, 
 " where his treatment of her is so cruel and barbarous and in- 
 human as actually to endanger her life ; " it was held, that a 
 case is not within this statute, unless there is an injury to the 
 body, intended or inflicted, dangerous to life ; and that conduct 
 which in its consequences may shorten life by producing a set- 
 tled melancholy, or any other treatment, however cruel and 
 Inhuman, which operates primarily on the mind, is inadequate. 
 The court add : " We cannot with sufficient certainty ascertain 
 the operation of particular acts upon the mind, and then trace 
 the influence of the mind upon the body, in producing disease 
 
 1 Ayl. Parer. 228. And see Ste- 2 D'Aguilar v. D'Aguilar, supra 5 
 phens V. Totty, Cro. Eliz. 908. Hollister v. HoUister, 6 Barr, 449, 553. 
 
 8 Ante, § 725. 
 
 603 
 
§ 732 JUDICIAL DIVORCES. [BOOK VII. 
 
 and death, to begin investigations of the kind without positive 
 command by legislative authority." ^ 
 
 § 732. Contmued. — On the other hand, the Court of Com- 
 mon Pleas of Pennsylvania, in a case much considered, used 
 the following language : " A husband may, by a course of hu- 
 miliating 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 unaccompanied by violence, positive or threatened. 
 Would the wife have no remedy, in sucli circumstances, under 
 our divorce laws, because actual or threatened personal violence 
 formed no element in such cruelty ? The answer to this ques- 
 tion seems free from difficulty when the subject is considered 
 with reference to the principles on which the divorce for cruelty 
 is predicated. Tlie courts intervene to dissolve 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 personal 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 wrongdoer. 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 
 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,2 where he states, as his deduction from what Sir 
 William Scott ruled in Evans v. Evans,^ that, ' if austerity of 
 temper, petulance of manner, 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 prin- 
 
 1 Thornberry v. Thoruberry, 2 J. J. * This observation, which is found in 
 Mar. 322. the Jurist report, does not occur in the 
 
 2 Dysart v. Dysart, 11 Jur. 490, 492. report of the case by Robertson, vol. 1, 
 
 3 Evans v. Evans, 1 Hag. Con. 35, p. 470, 473, et seq. ; an omission, doubt- 
 4 Eng. Ec. 310, 311 ; ante, § 717, note, less, of the latter reporter. 
 
 604 
 
CHAP. XLIII.] CRUELTY. § 733 a 
 
 ciple : that, whatever form marital ill-treatment assumes, if a 
 continuity of it involves the life or health of the wife, it is legal 
 cruelty." ^ In an English case, ill-nature, violent passion, and 
 frequent abuse of the wife from the time of the marriage were 
 proved against the husband ; he had so frightened her as to 
 occasion several fits of illness ; he had refused her medical as- 
 sistance ; in short, he had been a bad husband, but he had not 
 beaten her. Several instances of adultery were proved ; but 
 the facts were held to constitute cruelty also, and a divorce 
 was pronounced on both grounds.^ Yet, in a still later English 
 case, Dr. Lusliington strongly expressed the opinion, that abuse 
 which operates on the mind, and thus produces ill-health, is 
 not legal cruelty.^ 
 
 § 733. Continued. — On this point, also, if we examine it in 
 the light of principle, we shall be led distinctly to the conclu- 
 sion that the conduct under consideration may be legal cruelty. 
 Suppose the body is the only thing to be considered in these 
 cases, yet, if we find various avenues to it, through any one of 
 which may run the waters to drown its life or health, surely 
 we cannot say, that the approaches through one avenue shall 
 be left open by the law, while the others are closed. In point 
 of proof, it may be difficult in some instances to satisfy the 
 judge or jury affirmatively that bodily danger does exist from 
 the approaches through the avenue of the mind ; and, where a 
 woman cannot make out her case, she must suffer the conse- 
 quences of her failure ; yet this could furnish no good reason 
 why lier prayer for relief should be denied when the conclusion 
 of fact was evident beyond dispute. 
 
 § 733 a. Continued. — Since the foregoing discussions origi- 
 nally appeared in these volumes, the question is believed to 
 have been definitively settled in favor of the views here main- 
 tained. The latest of a series of cases turning on this point 
 arose in England. The wife of a clergyman sued her husband 
 for a judicial separation on the ground of cruelty, and it was 
 not pretended that any sort of physical violence was likely to 
 result to her from a continuance of the cohabitation ; but a 
 
 1 Butler V. Butler, 1 Parsons, 329, ^ Chesnutt v. Chesnutt, 1 Spinks, 
 334, opinion by King, President J. 196, 198; s. c. nom. C. v. C, 28 Eng. L. 
 
 ^ Robinson v. Eobinson, cited 2 Phil- & Eq. 603, 605 ; ante, § 722, note. 
 Um. 96. 
 
 605 
 
§ 733 b JUDICIAL DIVORCES. [BOOK VII. 
 
 constant and severe course of what the defendant deemed to 
 be afiFectionate discipline, of a moral sort, in connection with 
 an assertion of extreme rights of command and control, had 
 impaired her health, rendering it indeed necessary for her 
 physical well being to separate from him. The judge ordinary 
 granted her prayer for a judicial separation, and the full Di- 
 vorce Court on appeal confirmed the decision. Said Lord Pen- 
 zance, the judge ordinary : " Without disparaging 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 syste- 
 matically 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." Wlien the case 
 went before the full court, Channell, B., observed : " The most 
 frequent form of ill-usage which amounts to cruelty is that of 
 personal violence, but the courts have never limited their juris- 
 
 diction to such cases alone We think that the judgment 
 
 appealed against is in conformity with the law as previously 
 laid down." And Lord Penzance, recurring to the facts of 
 this particular casb, and the relative positions of the husband 
 and wife with regard to them, observed : " He says 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 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." 
 Therefore the interposition of the court in behalf of the wife 
 became necessary.^ 
 
 § 733 b. Continued. — In our own country the case which, if 
 the facts had been such as to render the language of the court 
 in the fullest sense adjudication, and not somewhat bordering, 
 
 1 KeUy V. KeUy, Law Rep. 2 P. & M. 81, 82 ; on appeal, 59, 61, 62, 72, 73. 
 606 
 
CHAP. XLIII.J CEUBLTY, § 733 b 
 
 as it is, upon mere dictum, might be deemed of the highest 
 interest, is a Massachusetts one. In it, the doctrine was laid 
 down by Chapman, J., 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 neglecting or 
 refusing to provide suitable maintenance for the wife, a reason- 
 able 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 
 apprehension of such danger upon the parties continuing to 
 live together. 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 con- 
 sidering cases of this sort, would lead us to be reconciled to 
 the rule of law which prevents the mere infliction of mental 
 suffering from constituting a ground of divorce. He said: 
 " If it be supposed that this interpretation 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 the 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 wretchedness 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." i In a California case, " it appears," 
 said Cope, C. J., " that the defendant was in the habit of using 
 towar.d the plaintiff the vilest and most abusive language, 
 falsely charging her with 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 
 
 1 Bailey v. Bailey, 97 Mass. 373, 380, 381. 
 
 607 
 
§ 734 JUDICIAL DIVORCES. [BOOK YII. 
 
 threatening permanent injury to her health, rendering a sepa- 
 ration from him necessary." Thereupon a divorce was granted 
 her, while still the court adhered to the doctrine, that, to be 
 a ground of divorce, the suffering which the wrong-doer inflicts 
 on the mind must cast its effects on the body.^ 
 
 § 734. Motives, &c. — In determining whether or not the 
 conduct of the husband sufficiently imports bodily harm, we 
 are not to look solely at the motive whence it proceeds. "It 
 may be from turbulent passion, or sometimes 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 source 
 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 
 what provocation such violence originated." * Thus, while 
 the mere act of drunkenness, however often repeated, is not 
 cruelty,^ yet violent and outrageous conduct of a husband, 
 when drunk, toward his wife, endangering her safety, is, though 
 perfectly consistent with afiection during his sober moments.^ 
 And in Westmeath v. Westmeath, where Sir John Nicholl 
 
 1 Powelson v. Powelson, 22 Cal. 358. 154 ; Hudson v. Hudson, 3 Swab. & T. 
 And see Cole v. Cole, 23 Iowa, 433 ; 314 ; Brown v. Brown, Law Rep. 1 P. 
 Gholston D. Gholston, 31 Ga. 625. & M. 46. In a Texas case, however, 
 
 2 See Westmeath v. "Westmeath, 2 Hemphill, C. J. observed : " Such 
 Hag. Ec. Supp. 1, 4 Eng. Ec. 238. drunkenness as totally or in a great 
 
 3 " Jealousy is a passion producing degree disqualified the husband to dis- 
 effects as violent as any other passion, charge his marital duties or obliga- 
 and there wiU be the same necessity to tions, — such, for instance, as would 
 provide for the safety and comfort of compel the- wife, as in this instance 
 the individual. If that safety is endan- to leave the husband, — would be a 
 gered by violent and disorderly affec- degree of cruelty in itself, and which, 
 tions of the mind, it is the same in its if continued for a length of time, say 
 effects as if it proceeded from mere three years in analogy to the time pre- 
 mahgnity alone." Lord Stowell, in scribed by the statute for abandon- 
 Kirkman v. Kurkman, 1 Hag. Con. 409, ment, would amount in law to a cause 
 4Eng. Ec. 438. for divorce." Camp v. Camp, 18 
 
 ^ Lord Stowell, in Holden v. Holden, Texas, 528. 
 1 Hag. Con. 453, 4 Eng. Ec. 452, 454. 6 Lockridge v. Loekridge, 3 Dana, 
 
 " If I were satisfied, that conduct dan- 28 ; Mason v. Mason, 1 Edw. Ch. 278 ; 
 
 gerous in itself arose from morbid feel- Boggess v. Boggess, 4 Dana 307 • 
 
 ings out of the control of the [defendant] Hughes v. Hughes, 19 Ala. 307 ; Bowie 
 
 husband, I must act, if the danger ex- v. Bowie, 3 Md. Ch. 51 ; Marsh v Marsh 
 
 1st." Dr. Lushington, in Dysart v. 1 Swab. & T. 312: Power w. Power 4 
 
 Dysart, 1 Robertson, 106, 116. Swab. & T. 173. ' 
 
 6 Waskam v. Waskam, 31 Missis. 
 608 
 
CHAP. XLIII.] CRUELTY. § 734 a 
 
 granted the divorce, he observed : " The cruelty imputed is 
 not that of cold malignity, or savage, continual, unfeeling 
 brutality of disposition ; it is not that of satiated possession, 
 producing disgust and hatred ; tlie acts charged are not incon- 
 sistent with occasional kindness, with the existence and con 
 tinuance of strong attachment, nay, even with violent affection ; 
 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." ^ But a mere 
 unintentional act, though occasioning pain and injury, will not 
 warrant a sentence of divorce ; because it does not imply 
 future risk.^ So, violence inflicted in a mutual contest is no 
 cause for the interference of the court ; ^ but here is involved 
 also another principle, to be presently discussed ; namely, that 
 the complaining party must be without great blame. 
 
 § 734 a. Contmued — Insanity — Effects of other Disease. — 
 It is plain that a husband, for example, may be insane ; tlien, 
 if the wife's safety is endangered, she has another method of 
 protecting herself than by proceedings for a divorce, and these 
 she could not maintain. Still there may be a settled state of 
 mind produced by disease which, while it is not insanity, is 
 of a sort to render the wife unsafe ; in which case, it has been 
 intimated, she will be entitled to a divorce. " If," said the 
 judge ordinary, Cresswell, J., in one case, " an act of violence 
 were committed under the influence of an acute disorder, 
 such as brain fevei', and it were made clear that, the disorder 
 having been subdued, there was no danger of a recurrence of 
 such acts, the case would ^be difl'erent. But, if the result 
 of such a disease has been a new condition of the brain, ren- 
 
 1 Westmeath v. Westmeath, 2 Hag. 270. In Oliver v. Oliver, 1 Hag. Con. 
 Ec. Supp. 1, 4 Eng. Ec. 238, 272. In 361, 4 Eng. Ec. 429, 433, 434, the wife 
 Shaw V. Shaw, 17 Conn. 189, 195, it refused to deliver up to her husband 
 is observed, that the doctrine of the some keys, to the possession of which 
 immateriality of the motive applies to he was entitled, and he undertook to 
 " cases of violence where the natural take them from her. In the scuffle, 
 consequence would be injurious or dan- she went against the wall, and bruised 
 gerous, and where the act therefore her arm and breast. It was held not 
 was unlawful ; " but not where the act to be sufficient cause for a divorce. 
 
 is itself lawful, and under ordinary cir- " Rumball u. Eumball,Poynter Mar. 
 cumstances not hurtful. & Div. 237, note ; Dysart v. Dysart, 1 
 
 2 Neeld v. Neeld, 4 Hag. Ec. 263, Robertson, 106, 123. 
 
 VOL. 
 
 39 609 
 
§ 735 JUDICIAL DIVORCES. [BOOK VII. 
 
 dering 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." ^ 
 
 § 735. Kind of Violence. — The kind of violence, where 
 violence is used, is immaterial. In this respect, no difference 
 exists between a blow, a push, or any other force.^ So, it is 
 cruelty in a husband to confine his wife ; or knowingly to 
 deprive her of needful air ; ^ or to starve her ; or, having the 
 means, to refuse her what are termed the necessaries, not the 
 mere luxuries, of life ; * or to withhold medical assistance in 
 sickness, while he is able to provide it ; ^ or knowingly to 
 communicate venereal disease to her, though there must be 
 clear evidence he meant its communication.^ Yet, on the 
 latter point, the presumption is, that the husband knew his 
 own state of health and the probable result of the connection.' 
 It is not legal cruelty for a man to marry while venereal disease 
 is on him, and thereby endanger his wife, if in fact it is not 
 taken by her.^ This last point, however, may be a little doubt- 
 ful, viewed otherwise than as one of evidence ; for, if really 
 there is danger, the wife should not be compelled to cohabit; 
 yet, if the marriage was without apprehension in the husband's 
 mind, and if on learning the danger he should forbear to do 
 what might communicate the disease, plainly, in principle, no 
 divorce should be granted. In like manner, the wilful com- 
 munication of the itch is an act of cruelty, though perhaps not 
 sufficient alone.^ A husband's attempt, when infected with 
 
 1 Curtis V. Curtis, 1 Swab. & T. 192, entertain a reasonable doubt, that such 
 
 213. a denial, when the fortune was ample, 
 
 ^ Dysart v. Dysart, 1 Robertson, might probably, under circumstances, 
 106, 125; Saunders v. Saunders, 1 be considered differently." Dr. Lush- 
 Robertson, 549, 560. ington, in Dysart u. Dysart, 1 Robert- 
 
 8 Evans v. Evans, 1 Hag. Con. 35, son, 106, 111. 
 4 Eng. Ec. 310, 326, 327. 6 Collett v. CoUett, 1 Curt. Ec. 678; 
 
 4 Butler V. Butler, 1 Parsons, 329 ; Long v. Long, 2 Hawks, 189. 
 Smedleyi). Smedley, 30 Ala. 714. And 7 Brown v. Brown, Law Rep. 1 P. 
 see Evans </. Evans, supra, 4 Eng. Ec. & M. 46 ; Boardman v. Boardman, Law 
 
 350, 351. Rep. 1 P. & M. 238. 
 
 5 Evans v. Evans, supra, 4 Eng. Ec. 8 Qiocci v. Ciocci, 26 Eng. L. & Eq. 
 
 351. " The denial of necessaries and 604, 1 Spinks, 121. 
 
 comforts, even of medical assistance, 9 C. v. C, 28 Eng. L. & Eq. 603, 
 
 where there are no pecuniary resources, 606 ; s. o. nom. Chesnutt v. Chesnutt, 1 
 
 never can be construed into acts ot Spinks, 196. 
 cruelty; but no one could, I think, 
 
 610 
 
CHAP. XLIII.] CRUELTY. § 737 
 
 venereal disease, to force his wife to his bed, has been said to 
 be of a mixed nature, partly cruelty, partly evidence of adul- 
 tery. If he undertakes to debauch his own woman servant, it 
 is an act of cruelty, " perhaps," observes Lord Stowell, " not 
 alone sufficient to divorce, but which might weigh, in conjunc- 
 tion 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." ^ 
 
 § 736. Ill-treatment of Wife's Child — Other Relations. — And 
 where a husband, for the purpose of harassing his wife, ill 
 treats a child ^ or other relative of hers,^ this is cruelty to her, 
 though perhaps not alone sufficient. Dr. Lushiugton 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. 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 to be, whether the cruelty 
 was practised on the child for the purpose of annoying the^ 
 mother.* And the circumstance that the cruelty was in the 
 presence of the mother has been deemed important, if indeed it 
 is not the test as to its admissi^iJn.^ 
 
 § 737. Damaging Property^. — There is a case in which, the 
 husband being complainant against the wife for her cruelty, he 
 pleaded, " that she had damaged a valuable grand piano-forte 
 by striking it repeatedly upon the keys ; " and the court 
 rejected the allegation, observing, " that such conduct might 
 not unfairly be considered as cruelty to her husband, being a 
 
 1 Popkin V. Popkin, 1 Hag. Ec. 765, 134 ; Perry v. Perry, 1 Barb. Ch. 516. 
 note, 3 Eng. Ec. 325. And see Cart- In Toum^ v. Tourne, 9 La. 452, it was 
 Wright V. Cartwright, 18 Texas, 626. held, that the father's partial treat- 
 
 2 Brarawell v. Bramwell, 3 Hag. Ec. ment of one of the children, and the 
 618, 5 Eng. Ec. 232, 242. See C. v. C, child's disobedience toward the mother, 
 28 Eng. L. & Eq. 603", 608 ; Mayhew v. supposed to result from his encourage- 
 Thayer, 8 Gray, 172 ; Everton v. Ever- ment, are not suflScient ground for a 
 ton, 5 Jones, N. C. 202. separation. 
 
 " Saunders v. Saunders, 10 Jur. 143. * Suggate v. Suggate, 1 Swab. & T. 
 * Wallscourt v. Wallscourt, 11 Jur. 489. See Everton v. Everton, supra. 
 
 '611 
 
§ 738 JUDICIAL DIVORCES. [BOOK VII. 
 
 wanton abuse of his property ; but that it did not think it quite 
 sufficient to plead a single act of that kind, done in a moment 
 of passion." ^ In a wife's sxiit, Dr. Lushington 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 that her husband, to annoy 
 her, himself drove the pony, though he had horses of his own 
 standing idle, until he spoiled the animal from bad treatment; 
 then gave it, together with J 10 her mother had made her a 
 present of, in exchange for another pony ; and, lastly, sold this 
 pony, and 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 tlie court, which can never 
 attend to qiiarrels of this sort." ^ 
 
 § 738. Desertion as Cruelty — Refusing Marital Connection. — 
 Wilful and malicious desertion is not alone cruelty ; but it 
 may be noticed in aggravation of acts of cruelty, and " in con- 
 junction with other acts it frequently is " sufficient.^ A for- 
 tiori^ it is not cruelty for the husband to take a separate bed.* 
 And in general terms it appears to be regarded not as cruelty 
 
 ■ for either spouse to withhold from the other marital connec- 
 tion.^ But this doctrine, to be sound, as applied to cases 
 where.no good reason, such as the health of the party refusing, 
 prompts the refusal, must proceed on the assumption that the 
 health of the other party is not injured thereby. Now, in 
 many cases of impotence in the man, perhaps in most, it 
 
 . appears in evidence that the health of the woman has suffered 
 from being obliged to sleep with a male person without any 
 proper gratification of passions which are thereby excited. 
 And there can be no doubt that a capable person, whether 
 man or woman, may in this way inflict an injury to the health 
 
 1 Kirkman v. Kirkman, 1 Hag. Con. 354 ; Severn v. Severn, 3 Grant, TJ. C. 
 409. And see White v. White, 1 Swab.' Ch. 431 ; Cartwrlght v. Cartwright, 18 
 & T. 591. Texas, 626; ante, § 726. 
 
 2 Saunders v. Saunders, 10 Jur. 143, * D'Aguilar v. D'Aguilar, 1 Hag. 
 144. See also D'Aguilar u. D'Aguilar, Ec. 773, 774, note, 3 Eng. Ec. 329, 331 ; 
 1 Hag. Ec. 773, note, 3 Eng. Ec. 329, Orme k. Orme, 2 Add. Ec. 882, 2 Eng. 
 331. See ante, § 726, 727; post, § 740. Ec. 354. 
 
 3 Evans o. Evans, 1 Hag. Con. 35, 5 Cousen o. Cousen, 4 Swab. & T. 
 120, 4 Eng. Ec. 310, 349; SulUvan v. 164 ; Cutler v. Cutler, 2 Brews. 511. 
 SuUivan, 2 Add. Ec. 299, 2 Eng. Ec. 
 
 612 ■ 
 
CHAP. XLIII.] CRUELTY. § 739 
 
 of the other party to the marriage on account of which a 
 divorce for the cruelty ought to be granted. 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 deems even this sufficient.^ 
 
 § 739. Sodomy. — Unnatural practices, termed in the crim- 
 inal law sodomy, buggery, &c.,^ are by tiie unwritten law of 
 England ground of divorce from bed and board. The reason 
 why they are, does not fully appear in the reports ; they may 
 perhaps be. deemed a species of adultery; probably they are to 
 be looked upon as approaching quite as near to the legal 
 cruelty. And a mere unsuccessful attempt at such practices 
 is sufficient, though an attempt to commit adultery is not. 
 Where a wife pleaded general ill-treatment in one article of 
 her libel ; and pleaded in another article 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 Nicholl admitted the libel, and 
 afterward granted the divorce. He observed : " The case laid, ' 
 as a whole, does amount, in my judgment, to that per quod 
 consortium amittitur. 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 allegation was 
 admitted, responsive to the husband's suit for the restitution 
 of conjugal rights, charging him with unnatural practices 
 toward his wife. On the hearing, the evidence upon this alle- 
 gation failed.* That such practices are deemed in England to 
 be a heavier offence against the marriage than even adultery, 
 appears from Stat. 20 & 21 Vict. c. 85, § 27,° which, while 
 
 1 1 Fras. Dom. Rel. 458. See also The wife pleaded, that " she suHered, 
 
 Jones w. Jones, Wright, 155. or suhmitted to, such treatment." 
 
 i See 1 Bishop Grim. Law, § 380 ; " Tenendam est sodomiam sufficere ad 
 
 2 ih. § 1027 et seq. divortium. Quia sodomia est gravius 
 
 3 Mogg V. Mogg, 2 Add. Eo. 292, 2 delictum adulterio. Si ergo ob adulte- 
 
 Eng. Eg. 311. See also Bromley v. rium permittitur divortium ; idem a 
 
 Bromley, and EUenthorpe v. Myers, 2 fortiori dicendum erit de sodomia." 
 
 Add. Ec. 158, note, 2 Eng. Ec. 260, 261. Sanchez, lib. 10, disp. 4, § 3. 
 
 * Geils V. Geils, 6 Notes Cas. 101. 5 See ante, § 65, note. " 
 
 613 
 
§ 741 JUDICIAL DIVORCES. [BOOK VII. 
 
 allowing to the wife a divorce a vinculo from her husband for 
 his adultery, only when committed under aggravated circum- 
 stances, or coupled with cruelty or desertion, permits this 
 divorce to her in all cases of his " sodomy or bestiality." 
 In the United States, there are no statutes, except in a State 
 or twOji in terms making this sort of conduct an offence 
 against the marriage. Whether its commission would be 
 deemed to be either cruelty or adultery with us, is a question 
 undecided. 
 
 § 740. Amount of Cruelty — Extent of Danger. — The amount 
 ~df cruel treatment, or the extent of danger to the life, limb, or 
 health, authorizing a divorce for cruelty, is a question often 
 discussed, but its solution depends on a variety of circumstances 
 and considerations. Chancellor Kent observes : " 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 dis- 
 crimination 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,^ 
 that 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 violence 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 court." ^ 
 
 § 741. Continued. — Sir John Nicholl observes : " What must 
 be the extent of injury, or what will reasonably excite the ap- 
 prehension, 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 parties, in spme degree from the condi- 
 
 1 Ante, § 191 a, note. s Barrere v. Barrere, 4 Johns. Ch. 
 
 2 Traite du Contract de Manage, 187. 
 §509. 
 
 614 
 
CHAP. XLIII.} CRUELTY. § 741 
 
 tion of the person suffering 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 stations and situations, and the feelings 
 almost necessarily arising out of them, but even acquired feel- 
 ings, may be entitled to some attention. In Evans v. Evans,i 
 Lord Stowell's remarks establish, that what wounds, not the 
 natural, but the acquired feelings, will not absolutely be ex- 
 cluded by the court, when stated merely as a matter of aggra- 
 vation. 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 inci- 
 dents 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 discipline of which emollit mores, and tends to extinguish 
 ferocity, if a nobleman of high rank and ancient family, uses 
 personal violence to his wife, his equal in rank, the choice of 
 his affection, the friend of his bosom, the mother of his offspring, 
 — such conduct, 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 in- 
 suppoi'table. The particular situation of the parties when the 
 ill-treatment is inflicted may create a still further aggravation." ^ 
 Thus, the husband's cruelty is aggravated by the woman's being 
 in pregnancy.^ So, also, by her being of advanced age ; for 
 " there may be relative cruelty, and what is tolerable by one 
 may not be by another." * 
 
 1 Evans v. Evans, 1 Hag. Con. 35, Hag. Con. 35, 4 Eng. Ec. 310, 830 ; 
 38, 4 Eng. Ec. 310, 311. Eleytas u. Pigneguy, 9 La. 419. See 
 
 2 Westmeath v. Westmeath, 2 Hag. Dysart u. Dysart, 1 Robertson, 106, 
 Ec. Supp. 1, 4 Eng. Ec. 238, 271. And 109. 
 
 see David v. David, 27 Ala. 222. * D'Aguilar v. D'Aguilar, 1 Hag. 
 
 3 Westmeath v. Westmeath, supra, Ec. 773, 3 Eng. Ec. 329, 335. 
 4 Eng. Ec. 294; Evans v. Evans, 1 
 
 615 
 
§ 743 JUDICIAL DIVORCES. [BOOK VII. 
 
 § 742. Rank and Condition. — We have seen/ that, in matter 
 of just principle, regard should be had to the peculiar mental 
 and physical constitution, and the particular state of health of 
 . the party. These, it is deemed by the writer, should be more 
 carefully looked at than mere rank and condition ; though, to 
 the latter, some, but not an overwhelming, weight should be 
 given. In a New York case, where the husband was the party 
 proceeded against, Parker, J., observed : " It is sard, his grossly 
 indecent language, spoken to and of his wife, is to find pallia- 
 tion 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 society. 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 conduct and kind influences. Delicacy of 
 feeling belongs as well to the cottage as to the statelier mansion. 
 The mind may be cultivated by study, and the manners pol- 
 ished by refined association ; but the natural aff'ections 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 cultivation may 'excuse an unrefined, 
 or even coarse expression ; but it forms not the slightest apology 
 for indecent conduct, or obscene language."^ 
 
 § 74-3. Cause Weighty. — Slight Battery. — The causes of 
 complaint must be grave and weighty .^ " 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 sub- 
 mitted to with patience ; for the engagement was to take for 
 better, for worse; and, painful as the performance of this duty 
 may be, painful as it certainly is in many instances, which ex- 
 hibit a great deal of the misery that clouds human life, it must 
 
 1 Ante, § 717, note. Coles v. Coles, 2 Md. Ch. 341 ; Schin- 
 
 2 Whispell V. Whispell, 4 Barb. 217. del v. Schindel, 12 Md. 294 ; ante 
 
 3 Mason v. Mason, 1 Edw. Ch. 278 ; § 719 ' 
 
 616 
 
CHAP. XLIII.J CRUELTY. § 744 
 
 be attempted to be sweetened by the consciousness of its being 
 a duty, and a duty of the very first class and importance." ^ 
 And it is not every slight touching of the person of the wife by 
 the husband, even in anger, which will authorize a divorce.^ 
 
 § 744. Continued — Limit of the Doctrine — A Single Act. — 
 On the other hand, the case need not be an aggravated one of 
 constant, deliberate, and brutal ill-usage. Thus, in one in- 
 stance the court below charged the jury as follows : " The acts 
 must be persistent, and the cruelty must be so extreme in its 
 nature that in itself it furnishes an apprehension that the con- 
 tinuance of the cohabitation would be attended with bodily 
 harm to the wife." But, on review before the higher tribunal, 
 this ruling was held to be wrong. Said the judge : " This 
 charge, we think, was too strong. Acts of cruelty, such as are 
 specified, need not 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 com- 
 mand over himself, and, under the sway of passion, has done 
 acts of violence toward his wife, under circumstances leading 
 to the presumption that they will be repeated, though seldom, 
 the divorce may be granted.* Said Lord Stowell: "The law 
 does not require 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 inter- 
 pose its protection, even in the case of a single act ; because, 
 if one act should be of that description which should induce 
 
 1 Lord Stowell, in Evans v. Evans, ^ s. p. Fleytas v. Pigneguy, 9 La. 
 1 Hag. Con. 35, 4 Eng. Ee. 310, 349; 419. In Graecen v. Graecen, 1 Green 
 s. p. Turbitt v. Turbitt, 21 III. 438; Ch. 459, the Chancellor was of opinion, 
 Everton v. Everton, 5 Jones, N. C. 202. that isolated acts of long standing 
 
 2 Richards v. Eichards, 1 Grant, Pa. should not entitle the wife to a divorce, 
 389. especially if the later conduct of the 
 
 3 Mahone v. Mahone, 19 Cal. 626, husband has, been of a different char- 
 628, opinion by Norton, J. acter ; yet evidence of the earlier acts 
 
 * Lockwood V. Lockwood, 2 Curt, may be received in connection with 
 Ec. 281, 7 Eng. Ec. 114, 125 ; Dysart evidence of more recent ones, to show 
 V. Dysart, 1 Kobertson, 106,121,470, a series of wrongs and inj uries. 
 533, 540. 
 
 617 
 
§ 745 JUDICIAL DIVORCES. [BOOK VII. 
 
 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 sufficient to authorize its interfer- 
 ence." ^ 
 
 § 745. A Single Act, continued. — Indeed, that a single act 
 of violence may, under some circumstances, be sufficient to 
 authorize a divorce, is a proposition which necessarily flows 
 from the doctrine already considered,^ that no violence what- 
 ever need be really inflicted, provided the conduct of the 
 husband is such, in any respect, as to create a reasonable appre- 
 hension of future violence. Yet, in a Pennsylvania case, under 
 a statute which, perhaps, altered the common-law rule in this 
 respect, the doctrine seems to be laid down, that one act is not 
 alone enough. The statute provided for a divorce in favor of 
 the wife, whenever her husband shall have " ofiered such in- 
 dignities to her person as to render her. condition intolerable 
 and life burdensome, and thereby forced her to withdraw from 
 his house and family." The court observed : " We had this 
 cause here three years ago, and we then reversed a decree in 
 favor of the wife, because on the trial the judge below had in- 
 structed the jury, that, if the husband in anger and madness 
 twisted his wife's nose, she was entitled to a verdict." And in 
 considering the instructions which were actually given below, 
 the learned judge who pronounced the opinion of the higher 
 tribunal remarked: "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 man- 
 ner, there should be a ^verdict in her favor. This is substan- 
 tially 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 con- 
 tinued treatment as renders the wife's condition intolerable', 
 and her life burdensome." ^ On referring, however, to the re- 
 port of the case as decided on the former occasion, we find that 
 the learned judge who pronounced the opinion made use of the 
 
 1 Holden v. Holden, 1 Hag. Con. 2 Ante, § 730. 
 
 453, 4 Eng. Ec. 452, 454; French v. 3 Richards v. Richards, 1 Wright, 
 
 French, 4 Mass. 587. Pa. 225, 227, opinion by Lowrie, C. J. 
 618 
 
CHAP. XLIII.] CRUELTY. § 745 a 
 
 following language : " 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 particular circumstances shown, 
 was deemed quite properly not to be enough.^ 
 
 § 745 a. Continued. — Whatever may be said of this Pennsyl- 
 vania doctrine, as derived from the statute on which the case 
 was decided, there are in a small number of our States statutes 
 so unfortunately drawn as plainly to compel the court to hold 
 that no one act, whatever its nature and import, is enough. 
 Thus, in Illinois, the words of the statute are " extreme and 
 repeated cruelty ; " and it is plain that a single act, though it 
 may be " extreme " in point of cruelty, is not also " repeated." 
 Precisely how far a court may properly mollify this unfortu- 
 nate language by construction, it may not be easy to say in ad- 
 vance. To the writer it seems plain that there need not be 
 what might be termed a double cruelty proved ; 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, no one 
 act of the party complained against is to be viewed as an iso- 
 lated transaction, but each fact is to be viewed as a stick in a 
 bundle which comprises the entire matrimonial life. Therefore 
 if a case should present itself in which a half dozen transac- 
 tions were relied on, and no one of them would in the English 
 law be sufficient of itself, but together they would just con- 
 stitute legal cruelty and no more, it seems to the writer that 
 they should be deemed sufficient under this Illinois statute. 
 According to one case decided under this statute, the fact that 
 a husband has repeatedly used harsh and profane language to 
 his wife, and that on one occasion he choked her and threat- 
 ened to do so again, does not constitute extreme and repeated 
 cruelty. " It is a positive requirement of our 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 
 
 1 Richards v. Richards, 1 Grant, Pa. 389, 391, opinion by Armstrong, J. • 
 
 619 
 
§ 746 JUDICIAL DIVORCES. [BOOK VII. 
 
 this court, as announced 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." ^ 
 
 § 746. Continued. — There are probably not many cases 
 which ever occurred, wherein one single act of cruelty, and 
 one alone, — committed by a husband in whose general conduct 
 no impropriety is shown, concerning whose general habit and 
 disposition toward his wife there is no proof, — would be 
 propei'ly held to be sufficient to authorize a divorce ; ^ for, if 
 the act were exceptional to the entire conduct of the party, it 
 should not ordinarily be deemed to endanger the personal 
 safety of the wife ; and, if it were not exceptional, but there 
 were other things in his conduct harmonious with the act, yet 
 not proceeding to the same extreme, the party who relies on 
 the act should show the other things. Still, in a case before 
 the English Court for Divorce and Matrimonial Causes, the 
 wife was granted her prayer for a divorce from the bond of 
 matrimony (there being also adultery in conjunction with the 
 cruelty, as required by the statute), though the parties had 
 never met subsequently to the nuptials, but 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 reasonable 
 appreluension of further acts of the same kind, the court will 
 grant relief." ^ In harmony both with this -decision and with 
 the general doctrine, it was held, in a previous case before the 
 same learned judge, that a single act of violence, inflicted by 
 the husband on the wife, not producing any considerable 
 injury to her person, and not repeated, is, though it be an 
 unwarrantable act, insufficient as a foundation for the decree 
 of the court. " That the conduct of the respondent," said this 
 learned person. Sir C. Cresswell, " was unwarrantable, is true; 
 but I have examined tlie cases referred to, and find in each of 
 them, not merely one violent act committed under excitement, 
 and not producing any considerable injury to the person, but 
 repeated acts, furnishing such evidence of scevitia as warranted 
 
 1 Embree ■/. Embree, 53 111. 394, a Reeves v. 'Reeves, 8 Swab. & T. 
 395- 139, 141. 
 
 2 And see Cook v. Cook, 8 Stock. 
 1«5. 
 
 620 
 
CHAP. XLIII.J CRUELTY. § 748 
 
 the court in concluding that the wife could not cohabit in 
 safety witli such a husband, and was therefore entitled to the 
 protection of the court." i And in a Louisiana case, the doc- 
 trine was laid down, tiiat it is proper, in considering whether 
 one single act of cruelty, on the part of a husband toward 
 .his wife, is sufficient to entitle her to a divorce, to take into 
 .consideration the age, habits, and modes of life of the par- 
 ties.'^ 
 
 § 747. Principle governing the Cases — " All the Circum- 
 stances." — The foregoing propositions are but deductions from 
 the general one, that the divorce for cruelty is allowed rather 
 to prevent danger apprehended than to punish what is already 
 doue.^ Thence it follows, also, that " all the circumstances 
 together must be taken into consideration ; for the question is 
 not, whether this or that fact alleged 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." * 
 
 § 748. Speciiic Enumerations. — An assault or stroke, a slap 
 or slaps with the hand, in a single instance ; occasional petu- 
 lance of temper, rudeness of language, sallies of passion, not 
 threatening bodily harm, or endangering health or safety ; have 
 been considered insufficient.^ So, where a husband and wife 
 lived unhappily together, and sometimes cursed each other 
 witli the tongue ; and the husband once went so far as to 
 push the wife out of doors, without harming her, in a mutual 
 quarrel,^ the evidence not showing which of the parties was to 
 blame, — her prayer for divorce was refused.'^ But throwing 
 a bucket of water on the wife's head, with the threat of further 
 violence if she did not leave the house, was held to be a 
 sufficient act of cruelty, in a case where there was general 
 unkindness of deportment and language.^ So is spitting 
 in the wife's face a gross act of cruelty ; and it seems to be 
 sufficient of itself, though this is not quite clear.^ No doubt, 
 
 1 Smallwood v. SmaUwood, 2 Swab. " Ante, § 734. 
 
 & T. 397, 402. 7 Cooper v. Cooper, 10 La. 249. 
 
 2 Lauber v. Mast, 15 La. An. 593. 8 Moyler v. Moyler, 11 Ala. 620. 
 And see Doyle v. Doyle, 26 Misso. 545. » Cloborn's Case, Hetley, 149 ; 
 
 2 Ante, § 719, D'Aguilar v. D'Aguilar, 1 Hag. Ec. 
 
 i Dr. Lushlngton, in Saunders v. 773, 777, 3 Eng. Eo. 329, 331 ; Saun- 
 Saunders, 1 Robertson, 549, 556. ders v. Saunders, 1 Bobertgon, 549, 
 
 6 Finley v. Knley, 9 Dana, 52. 561. 
 
 621 
 
750 JUDICIAL DIVORCES. [BOOK VII. 
 
 like all other acts, it receives color from the general tem- 
 per of the parties, and the circumstances under which it is 
 inflicted. 
 
 § 749. Continued. — Sir John Nicholl, in one case, observed: 
 " Cruelty, in my judgment, is proved. Here is violence, pre- 
 ceded by deliberate insult and injury. The sending away her^ 
 [the wife's] horses, and putting them up to sale, while she was 
 at church [they were her separate property] ; the forcibly 
 carrying her and confining her to her room ; afterwards 
 attempting forcibly to carry her back to her place of confine- 
 ment; the forming an adulterous connection with her maid; 
 the keeping that servant in the house, notwithstanding the 
 remonstrances of his 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 
 tlie child [whom he took from her and compelled to sleep iu 
 the room with himself and the prostitute], notwithstanding tlie 
 pretext of parental rights, the exercise of which courts of jus- 
 tice 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 
 unmanly cruelty as can be committed." ^ 
 
 § 750. Continued. — In a Tennessee case, the court, on 
 granting a divorce to the wife, described the conduct of the 
 husband thus : " He is in the habit of using language to her 
 which a gentleman will not employ to his slave ; he threatens 
 to drive her from his house ; he slaps her, and, at the family 
 altar, in her presence, he prays God to deliver him from her." 
 The parties were both members of the Methodist Episcopal 
 Church ; and the prayer the defendant admitted and justified 
 as being right. The court regarded it, if intended only for 
 her ear, as the greatest abuse of all ; but, if it were serious, 
 there was danger that his hands would execute what his heart 
 desired.^ 
 
 1 Smith V. Smith, 2 PhiUim. 207, 1 See also Clutch v. Clutch, Saxton, 474. 
 Eng. Ec. 232, 234. In Jones v. Jones, Wright, 244, and 
 
 2 Payne v. Payne, 4 Humph. 500. Beatty v. Beatty, Wright, 557, the facts 
 
 622 
 
CHAP. XLIII.] CRUELTY. § 753 
 
 § 751.. Continued. — In Mississippi, the divorce for cruelty 
 is from bed and board only ; while, for adultery and desertion, 
 it is from the bond of matrimony.^ There, on a bill by the 
 wife, praying for the divorce from bed and board, no evidence 
 was produced of any threats or blows, but only of the hus- 
 band's dislike of her; he was a wicked and abandoned 
 creature ; he married her for her money, and, after getting it, 
 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 was granted in 
 accordance with her prayer.^ 
 
 § 752. " Endanger Life." — The statute of lowa provides for 
 a divorce when the husband " is guilty of such inhuman treat- 
 ment as to endanger the life of his wife." And the court 
 observes, that, " as a specific cause of divorce, this clause is 
 the definition of that degree of cruelty which in this State 
 entitles the party to a divorce." The danger, it is to be 
 noticed, must be more than of mere bodily harm, it must be 
 danger to " the life of tiie wife." Yet, to create this danger, 
 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 suffi- 
 cient." 3 In another case under the same statute it was 
 observed : " 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 comes by construction 
 within this statute ; for to impair health is to jeopardize life.^ 
 
 § 753. General Views. — Practitioners and judges may derive 
 help from the statements of cases, and observations of courts, 
 contained in the foregoing sections. Yet it will be only help ; 
 for the facts of cases differ, the circumstances of parties differ, 
 and so the law must be newly applied to each case coming to 
 
 were clearly suflScient, and much more. 139, opinion by Wright, C. J. ; Cole v. 
 
 And see the case of Atkins v. Atkins, Cole, 23 lowa, 438. 
 
 reported ante, § 729, note. * Caruthers v. Caruthers, 13 Iowa, 
 
 1 Hutchinson's Code, 495, 496 ; 266, opinion by Baldwin, C. J. 
 Holmes v. Holmes, Walk. Missis. 474. 5 Cole v. Cole, supra. See, also, on 
 
 2 PuUiam v. Pulliam, 1 Freeman, the construction of this statute. Knight 
 Missis. 348. See also ante, § 736. v. Knight, 31 Iowa, 451. 
 
 3 Beebe v. Beebe, 10 Iowa, 133, 135, 
 
 623 
 
§ 754 JUDICIAL DIVORCES. [BOOK VII. 
 
 decision. And, indeed, perfect uniformity of decision, desirable 
 as it is, cannot be expected on this subject. Judges are men ; 
 men are fallible ; fallible men see things differently. 
 
 III. The Relative Rights and Duties of Susland and Wife. 
 
 § 754. Husband's Right to govern — Whether he may chastise 
 "Wife. — In considering questions of cruelty, we are sometimes 
 required to take into the account the relative legal rights and 
 duties of husband and wife. It is clear doctrine in our law, 
 that, in some sense, the husband is the head of the family, and 
 as such is intrusted with a certain government over the wife.^ 
 But tliis power of the husband's has its limits, and its lawful 
 and unlawful methods. It does not imply every thing whicii 
 every person might infer from it. Lord Stowell observed, that 
 the husband is intrusted by the law, not only with a certain 
 degree of care and protection, but also " with authority over 
 his wife. He is to practise tenderness and affection, and obe- 
 dience is her duty." ^ There was a time, in the history of the 
 English law, when he might issue his commands, and enforce 
 obedience with the rod, the same as though she were his child. 
 Thus, in a late Massachusetts case, tiie learned Chief Justice, 
 Chapman, shows what was the old form of the writ of suppli- 
 cavit, when it issued for the protection of the wife against the 
 husband. It was " that he sliall 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, 
 otlierwise than what reasonably belongs to her husband for 
 the purpose of the government and chastisement of his wife 
 lawfully." 3 The way in which the old doctrine is generally 
 laid down in the books is, that the husband may give the wife 
 " moderate correction." This right was afterward questioned 
 in England ; * and at the present time it is believed that it 
 would receive no countenance from any English court. In a 
 late case before the full Divorce and Matrimonial Court, " the 
 judge ordinary," says the report, " in summing up to the jury, 
 
 1 1 Bishop Mar. Women, § 45 et 3 Adams v. Adams, 100 Mass. 365, 
 seq. 370. 
 
 ■' Oliver V. Oliver, 1 Hag. Con. 361, « 1 Bl. Com. 444; Reeve Dom. Eel. 
 4Eng.,Ec. 429, 430. 65. 
 
 624 
 
CHAP. XLIII.j CRUELTY. § 754 
 
 observed : If a woman gets drunk and loses Irer 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 otherwise restrain her ; if she comes drunk into his 
 shop, he may take her by 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." ^ In our own 
 State of Mississippi, the court, in an early case, affirmed the old 
 rule ; yet they observed, that a husband should " confine him- 
 self within reasonable bounds when he thinks proper to chas- 
 tise his wife." Consequently they held that he is capable in 
 law of committing the offence of assault and battery upon her.^ 
 In North Carolina, the court, by Pearson, C. J., in a case not 
 of a remote date, laid down the doctrine as follows : " The wife 
 must be subject to the husband. Every man must govern his 
 household ; and if, by reason of an unruly temper, or an unbri- 
 dled tongue, the wife persistently treats her husband with dis- 
 respect, and he submits to it, he not only loses all sense of 
 self-respect, but loses the respect of the other members of his 
 family, without which he cannot expect to govern them, and 
 forfeits the respect of his neighbors. Such have been the inci- 
 dents of the marriage relation from the beginning of the human 
 race. Unto the woman it is said : ' Thy desire shall be to 
 thy husband, and he shall rule over thee.' — Genesis, iii. 16. 
 It follows that the law gives the husband power to use such a 
 degree of force as is necessary to make the wife behave herself 
 and know her place." ^ But this doctrine was afterward quali- 
 fied, at least in the form in which it was expressed. A husband 
 being proceeded against criminally for a battery on his wife, 
 the jury returned the following special verdict : " We find that 
 
 1 Pearman v. Pearman, 1 Swab. & proach those who may be thus unhap- 
 
 T. 601. See Prichard v. Prichard, 3 pily situated, let the husband be per- 
 
 Swab. & T. 523. mitted to exercise the right of moderate 
 
 ^ Bradley u. The State, Walk, chastisement, in cases of great emer- 
 
 Missis. 156, a. d. 1824. The opinion gency, and use salutary restraints in 
 
 in this case, by Ellis, J., closes as fol- every case of misbehavior, without 
 
 lows : " Family broils and dissensions being subjected to vexatious prosecu- 
 
 cannot be investigated before the tribu- tions, resulting In the mutual discredit 
 
 nals of the country, without casting a and shame of all parties concerned." 
 shade over the character of those who 3 Joyner v. Joyner, 6 Jones, Eq. 322, 
 
 are unfortunately engaged in the con- 325. 
 troversy. To screen from public re- 
 
 Ttft. I. 40 • 625 
 
§ 764 JUDICIAL DIVORCES. [BOOK VII. 
 
 the defendant struck Elizabeth Rhodes, his wife, three licks 
 with a switch about the size of one of his fingers (but not as 
 large as a man's thumb) without any provocation except some 
 words uttered by her and not recollected by tlie witness." 
 Thereupon it was held that judgment was properly entered in 
 favor of the defendant. It was deemed that the case was one 
 in which there was no just ground or provocation for the chas- 
 tisement ; " therefore," said Reade, J., " the question is plainly 
 presented, whether the court will allow a conviction of the hus- 
 band for moderate correction of the wife without provocation." 
 In holding that this could not be allowed (resulting, the reader 
 perceives, in the liberty to any husband to whip his wife " mod- 
 erately," whether obedient or disobedient, " with a switch 
 about the size of one of his fingers but not as large as a man's 
 thuipb," without being held to answer for his conduct to the 
 law), it was observed by the learned judge who delivered the 
 opinion of the court, " that the ground upon which we have 
 put this decision is not, that the husband has the right to whip 
 his wife much or little ; but that we will not interfere with 
 family government in trifling cases. We will no more inter- 
 fere where the husband whips the wife, than where the wife 
 whips the husband ; and yet we would hardly be supposed to 
 hold, that a wife has a right to whip her husband. We will 
 not inflict upon society the greater evil of raising the curtain 
 upon domestic privacy, to punish the lesser evil of trifling vio- 
 lence." ^ Consequently, in order to convict the husband of a 
 battery on his wife, even in a case in which the two are living 
 apart by agreement, it must appear that some permanent in- 
 jury was inflicted, or such excessive violence or cruelty was 
 employed as indicates malignity or vindictiveness.^ But it is 
 believed that the doctrine which gives immunity to the husband 
 who whips his wife, whether with or without provocation, by 
 way of " moderate correction " or otherwise, does not in any 
 form prevail elsewhere in the United States ; ^ and it is repudi- 
 
 1 The State v. Rhodes, Phillips, 453, Ab. Bouvier's ed. tit. Bar. & Feme, B. ; 
 455, 459. Bascom v. Bascom, Wright, 682 ; Poor 
 
 2 The State v. Black, 1 Winston, v. Poor, 8 N. H. 307, 313; Perry v. 
 No. i; 266. Perry, 2 Paige, 501, 503 ; The State of 
 
 3 Fulgham v. The State, 46 Ala. New Jersey v. Barnhard, Essex, Oyer 
 143, 147; Reeve Dom. Rel. 66; Bac. and Terminer, 1849, Newark Daily 
 
 626 
 
CHAP. XLIII.j CRUELTY. § 755 
 
 ated in Ireland ^ and Scotland." The importance of this ques- 
 tion in its application to suits foi' divorce appears to be less, 
 when we consider, that, in any view of it, unless we except the 
 peculiar view taken by the North Carolina court, the husband 
 could not screen himself from judicial consequences for beating 
 his wife if she were free from blame ; ^ and, if she were in fault, 
 she would not ordinarily be entitled to a divorce, though the 
 blows were inflicted without right.* Still there are divorce 
 causes in which this matter becomes important. 
 
 § 765. Imprisonment of Wife. — The husband has no general 
 right to imprison his wife ; " for," as the court in an old case 
 observed, " she is entitled to all reasonable liberty, if her 
 behavior is not very bad." ^ Yet when, as was said also in the 
 same case, according to another report of it, " the wife will 
 make an undue use of her liberty, either by squandering away 
 the husband's estate, or going into lewd company ; ^ it is law- 
 ful for the husband, in order to preserve his honor and estate, 
 to lay such a wife under restraint. But when nothing of that 
 appears, he cannot justify the depriving her of her liberty." '' 
 A wife having absented herself from the husband's house, 
 without cause and without his knowledge or consent, he insti- 
 tuted a suit against her for the restitution of conjugal rights. 
 She did not appear and answer to the suit, but absconded. 
 Pour years afterward he got her into his house by stratagem, 
 and confined her in it ; she declaring, that she would leave 
 when she had the opportunity. The husband was held to be 
 justified.^ If there is a separation between the parties, under 
 articles of separation, the right of the husband to exercise 
 
 Advertiser, 2 West. Law Jour. 301, [defendant] husband seems to have 
 
 Page on Div. 153, note ; Atkins v. At- supported her [the wife's] ebullitions 
 
 kins, ante, § 729, note ; People v. Win- of temper for a long time ; until, becom- 
 
 ters, 2 Parker, 10 ; James v. Common- ing wearied, he endeavored to correct 
 
 wealth, 12 S. & R. 220, 226 ; The State her temper by corporeal punishment." 
 V. Buckley, 2 Harring. Del. 552 ; Hurd * Lister's Case, 8 Mod. 22 ; In re 
 
 on Habeas Corpus, 26 ; 1 Bishop Crim. Price, 2 Post. & P. 263. 
 Law, 5th ed. § 891. ^ The State v. Craton, 6 Ire. 164. 
 
 1 Carpenter v. Carpenter, Milward, '' Rex v. Lister, 1 Stra. 477. And 
 
 159. see Taylor v. Taylor, 2 Lee, 172, 6 Bug. 
 
 'i 1 Fras. Dom. Rel. 241, 460. Ec. 81.. And see ante, § 735, and At- 
 
 3 Cochrane, Re, 8 Dowl. P. C. 630. kins v. Atkins, ante, § 729, note. 
 
 * Post, § 764^768. In Trowbridge 8 Cochrane, Re, 8 Dowl, P. C. 630, 
 
 V. CarUn, 12 La. An. 882, the divorce Wadd. Dig. 154, note, 
 •was denied. Cole, J., observing : " The 
 
 627 
 
§ 757 JUDICIAL DIVORCES. [BOOK VII. 
 
 personal restraint over the wife is at an end,^ — a doctrine, 
 however, hardly consistent with the English rule, that such 
 articles will not bar the suit for the restitution of conjugal 
 rights. 
 
 § 756. Continued. — The right of the husband, however, to 
 restrain the personal locomotion of the wife, if we assume it to 
 exist in this country, is not with us well defined. There is 
 plainly some right ; because, if even the case were that of a 
 stranger, there are circumstances in which restraint might be 
 exercised to prevent the commission of a crime. Moreover, 
 as the law makes the husband responsible criminally for crimes 
 committed by the wife in his presence, and civilly for her torts 
 whether he is present or absent, it must follow that he has the 
 corresponding right so far to restrain her as to free himself 
 from liability both civil and criminal. And we cannpt well 
 object to the North Carolina doctrine, that a husband may 
 lawfully take his wife by force from the possession of an adul- 
 terer.^ But, when we go further than this, the fact that the 
 suit for the restitution of conjugal rights is not known in our 
 country may possibly make a distinction between our law and 
 the English, as to the right of the husband over the person of 
 his wife. Yet upon this nothing can be said as having been 
 established, one way or the other, by adjudication. 
 
 § 757. Continued. — In a Pennsylvania case, the court 
 observed: "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 
 accountable, 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 criminal purpose, or the use of a butcher's 
 knife against a relative." ^ And this statement of the law does 
 not materially differ from the views expressed in the last 
 section. Where the law makes the husband responsible to 
 third persons for the acts of his wife, or makes him a party 
 to her crime committed in his presence, there, of course, the 
 
 1 Rex V. Mead, 1 Bur. 542 ; Vane's 2 1 Bishop Crim. Law, 5th ed. § 891. 
 
 Case, 13 East, 172, note, 1 "W. Bl. 18; » Richards v. Richards, 1 Grant, Pa. 
 
 Hurd on Habeas Corpus, 34. 389, 392. 
 628 
 
CHAP. XLIII.] CRUELTY. § 759 
 
 law must put into his hands the corresponding power of 
 restraint. But where no such responsibility exists, surely the 
 vague idea that the Supreme Being may hereafter put to the 
 husband some unpleasant question relating to his influence 
 over his wife, should not, be construed, in the law, to authorize 
 him to restrain her of her personal liberty, or to chastise her as 
 though she were a child. 
 
 § 758. Ho-w far Wife conform to Husband's Habits, &c. — 
 ■Worship — Friends. — '■ The wife should conform to the habits 
 and tastes of her husband : therefore she cannot ordinarily 
 complain of his peculiarities and eccentricities. Yet there is 
 a limit to her obligation in this respect ; for, if he has whims 
 and caprices which operate in a way to endanger her health, 
 she need not yield to them, but she may make them the ground 
 of a suit for divorce.^ 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 family ; ^ 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 the temper of the husband ; 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 circumstances that will justify that prohibition. And 
 the court could ill judge of the reasonableness of such an in- 
 junction. Though the wife may be very amiable, her connec- 
 tions may not be so, and there may be many reasons which 
 would justify such exclusion." ^ 
 
 § 759. Household Management. — So, from the legal relation 
 of husband and wife results the doctrine, that the former may 
 take into his own hands the management of his household ; 
 
 1 Dysart v. Dysart, 1 Robertson, * D'Aguilar v. D'Agiiilar, 1 Hag. 
 470, 472, 512. See Evans v. Evans, 1 Ec. 773, 3 Eng. Ec. 329, 336. 
 
 Hag. Con. 35, 4 Eng. Ec. 310, 349 ; ante, 5 Waring v. Waring, 2 Hag. Con. 
 
 § 734. 153, 159, 2 Phillim. 132, 1 Eng. Ec. 210, 
 
 2 Lawrence v. Lawrence, 3 Paige, 213. And see Shaw v. Shaw, 17 Conn. 
 267. 189, 195 ; Eulton v. Eulton, 36 Missis. 
 
 3 Neeld v. Neeld, 4 Hag. Ec. 263, 517. 
 269. 
 
 629 
 
§ 760 JUDICIAL DITORCES. [BOOK Til 
 
 and, if he does, and publicly inhibits his wife, this alone will 
 not be cruelty for which a divorce will be granted ; though, 
 as aggravating and giving character to acts of cruelty proper, 
 it may become important. " I cannot," says Lord Stowell, 
 " call it cruelty if a gentleman 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 repre- 
 sentative 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." ^ 
 
 § 760. Marital Cormection. — The law gives the husband 
 the right to have his wife occupy the same bed with himself. 
 At the same time he may exercise this right in a manner to 
 subject him to the charge of cruelty ; for, as observed in a New 
 Jersey case, " it is not questioned that a gross abuse of marital 
 rights, resulting in injury or suffering to the wife, may con- 
 stitute cruelty in the eye of the law." ^ There is a Connecticut 
 case in which the husband is §hown to have exercised his 
 rights, in this respect, to an extent quite repreliensible. The 
 wife was in feeble health ; he, well and jealous ; and, besides 
 inflicting much general abuse, he often compelled her to his 
 embrace, against her remqnstrance, and her declaration that ' 
 it injured her, at times when it was truly improper, unreason- 
 able, and in fact injurious 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 actually suffered from this conduct, she 
 left him, and brought her suit for divorce. The court found 
 the facts to be as thus stated ; and found, that, though she 
 was in no danger of receiving other physical ill treatment from 
 him, " she liad just reason to fear he would compel her to 
 occupy the same bed with^ him, regardless of the consequences 
 to her health." But even on these proofs the majority of the 
 
 1 Erans v. Evans, 1 Hag. Con. 35, 2 Green, Ch., in Moores v. Moores 1 
 115, 116, i Eng. Ec. 310, 347 ; 1 Eras. C. E. Green, 275. 
 Dom. Eel. 460. 
 
 630 
 
CHAP. XLIII.] CRUELTY. § 7G1 
 
 judges were of opinion that she was not entitled to tlie divorce, 
 and so they refused it ; upon the technical ground, that the 
 act of sexual intercourse between married persons is lawful in 
 itself, and there was no evidence to charge him with knowl- 
 edge of the injury he was inflicting upon her by it, except her 
 own claim of suffering in health from this cause.^ It cannot 
 be. doubted that the majority of our American judges would 
 differ from the conclusion to which the majority of the Con- 
 necticut court arrived on these facts. When the wife claimed 
 that she was injured by this undue exercise of what was other- 
 wise his rights, and he saw her droop under the injury which 
 the proof established to be real and not feigned, and when it 
 was admitted that even after this judicial investigation a re- 
 turn to cohabitation would subject her to continued inroads 
 of the same sort upon her health, it is difficult to see how the 
 technical right of husbands to do what will not injure their 
 wives could "be introduced to give authority to this husband to 
 kill this wife.^ 
 
 IV. Cruelty hy the Wife to the Husband. 
 
 § 761. General Doctrine. — Though, in cases of cruelty, the 
 complaint usually comes from the wife as the weaker party, yet 
 the law which prevails in England and most of our States au- 
 thorizes the divorce equally on prayer of the husband for her 
 cruelty .3 In some of the Am&rican States, the right is by 
 statute given to the wife alone.'' Where the husband is com- 
 plainant, " it is not," according to Chancellor Walworth, 
 " 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 
 
 1 Shaw V. Shaw, 17 Conn. 189 ; ante, 1824, § 12, authorized a divorce from 
 
 § 734, note. bed and board on prayer of the hus- 
 
 ■^ And see ante, § 734, 758. band for the wife's cruel treatment ; 
 
 ' Furlonger v. Furlonger, 5 Notes but, in the Eeyised Statutes of 1830, 
 
 Cas. 422; Kirkman u. Kirlcman, 1 Hag. this remedy was given only to the 
 
 Con. 409 ; Waring v. Waring, 2 Phil- wife. By accident, however, the ear- 
 
 lim. 132, 1 Eng. Ec. 210; White v. lier statute was not expressly repealed ; 
 
 White, 1 Swab. & T. 591, ante, § 717, and so it was held to remain in force, 
 
 note ; Ayl. Parer. 229 ; Oughton, tit. Perry v. Perry, 2 Barb. Ch. 311 ; Perry 
 
 193, § 18; Lynch v. Lynch, 33 Md. «. Perry, 2 Paige, 501; Van Veghten 
 
 828 ; Kempf v. Kempf, 84 Misso. 211 ; v. Van Veghten, 4 Johns. Ch. 501 ; 
 
 Jones V. Jones, 16 Smith, Pa. 494. McNamara v. McNamara, 2 Hilt, 547, 
 
 < In New York, the act of April 10, 549. 
 
 631 
 
§ 762 JUDICIAL DIVORCES. [BOOK VII. 
 
 to suppose that he will not be able to protect himself and family 
 by a proper exercise of his marital power." But the husband 
 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 the Chancellor held, 
 that the complaining husband may state in his bill acts of vio- 
 lence and misconduct toward his children and other members 
 of the family.! gj^ju^ evidently the general principles of law 
 must be the same, whether the suit is promoted by the husband 
 or the wife ; but, in the application of these as of all other prin- 
 ciples, the relative rights and duties imposed by the marriage 
 must be considered ; sometimes perhaps, also, the relative phys- 
 ical strength and mental constitution and temperament of the 
 parties.^ But the further consideration, that, except in a few 
 States where statutes have changed the common-law rule, the 
 guilty wife can have no provision decreed by the court for her 
 separate support, though her own property has vested in her 
 husband, may sometimes prevail with a merciful juflge. In 
 view of this condition of things in New York, Chancellor Wal- 
 worth said : " It must, therefore, be a very strong case, which 
 will induce this court to grant a final separation, on application 
 of the husband." ^ Perhaps the court, however, might accom- 
 plish substantial justice in a particular case, by granting to the 
 husband his divorce on condition of his restoring a reasonable 
 amount of property to the wife.* 
 
 § 762. Continued. — No sufficient reason exists why the 
 divorce for cruelty should not be allowed to an injured hus- 
 band, as well as to an injured wife. The facts of cases do 
 indeed show, that less frequently has the stronger party occa- 
 sion to complain than the weaker. But if we were to look at 
 this question as merely referring to the physical strength of the 
 parties, we should find numerous instances in which the ad- 
 
 1 Perry v. Perry, 1 Barb. Ch. 516 ; * In a late English case on a divorce 
 ante, § 736. for the wife's cruelty, there was an 
 
 2 See ante, § 714, 764-760 ; Doyle apphoation on her behalf for alimony. 
 V. Doyle, 26 Misso. 546, 646. " But the court, in the absence, of any 
 
 3 Palmer v. Palmer, 1 Paige, 276. precedent in support of the application. 
 See also Sheffield v. Sheffield, 3 Texas, refused to make any order." "White v. 
 79 ; Byrne v. Byrne, 3 Texas, 336 ; De White, 1 Swab. & T. 591, 694. 
 
 La Hay v. De La Hay, 21 111. 252. 
 
 632 
 
CHAP. XLIII.J CRUELTY. § 762 a 
 
 vantage in strength is with the wife. Yet this is by no means 
 the proper view of it. The safety, even physical, of one in the 
 marital relation does not depend on the possession of greater 
 physical power than the other, though we should admit the right 
 to use the power. But we have seen^ that a husband is not jus- 
 tified in chastising his wife to make her obedient or good ; also,^ 
 that his right to shut her up is questionable, at least, — how, 
 then, when her conduct toward him puts him in peril, is he to 
 right himself, if the suit for cruelty is denied ? This inquiry 
 will further suggest, that no great difference, after all, 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 found to be the more lovable and amiable of the two, she 
 is not always so. When she is not, but is even worse for her 
 sex, the court pays no compliment to woman by permitting this 
 circumstance to shield her from the consequences of unsexing 
 herself.^ 
 
 § 762 a. Continued. — In 1864, a case was decided in the 
 English Divorce Court, by Lord Penzance, quite in harmony 
 with the views thus expressed by the author. The facts, 
 as stated by the learned judge, were the following : " The co- 
 habitation of the parties has been very long ; and there is a 
 large family, many of them now grown up. The great and un- 
 restrained 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 
 her hand against him. She added personal outrage to the deg- 
 radation of foul language. Emboldened by a policy of passive 
 resistance which during the laqt 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 un- 
 womanly deed, and perhaps still more the nervous shock sus- 
 
 1 Ante, § 754. ' And see GhoUton u. Gholstoh, 81 
 
 2 Ante, § 755, 756. Ga. 625. 
 
 633 
 
§ 764 JUDICIAL DIVORCES. [BOOK Til. 
 
 taiiied by him in the necessary effort of self-restraint, induced a 
 fit and much mental and bodily suffering." Here, it is per- 
 ceived, there was no attempt by the husband to exercise 
 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 judge 
 to be the duty of the husband to measure strength with the 
 wife, or, if he declined, 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 himself from real injury if imminent." And on a con- 
 sideration of the whole case, the court deemed that the husband 
 was entitled to the judicial separation he prayed.^ 
 
 § 763. "What sufficient under Iowa Statute. — In lowa, 
 where the statute provided for a divorce in cases of treatment 
 dangerous to the life,^ a husband proceeding against his wife 
 alleged, in substance, that she had shamefully 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 keep at all times certain poisons 
 about his house ; and that he had been compelled to exercise 
 the greatest caution to keep such poisons out of her way, fear- 
 ing she would get possession of them and endeavor to poison 
 him. And, on demurrer, the facts thus set forth were held to 
 constitute sufficient ground for the divorce.^ 
 
 V. The Effect of III Conduct in the Complaining Parti/. 
 
 § 764. General Doctrine. — In our,second volume, the various 
 grounds upon which suits for divorce may be defended, will be 
 set out. There we shall see, that, if a party proceeding for a 
 divorce is guilty of the same thing which he alleges against the 
 
 1 Prichard v. Priehard, 3 Swab. & in which it had been held that this 
 
 T. 523. The learned judge, however, could not be done. "I think," he said, 
 
 held that the husband, in this case, "if there is no precedent, I ought to 
 
 should be required to make some pro- make one." 
 
 vision for the wife ; and overruled - Ante, § 752. 
 
 White ^. White, 1 Swab. & T. 591, 3 Beebe v. Beebe, 10 Iowa, 133. 
 and Dart v. Dart, 3 Swab. & T. 208, 
 
 634 
 
CHAP. XLIII.J CR0ELTT. ' § 7fi5 
 
 other party, his prayer will not be grauted.i But the peculiar 
 nature of this suit for cruelty makes another defence of the 
 like nature relevant ; namely, — If what is complained of as 
 cruelty is the natural and probable return for the complainant's 
 own misconduct, it will not furnish ground for the proceeding. 
 " The remedy 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 com- 
 plain." '^ But though the wife may have brought the evil on 
 herself, the way of reform is open to her ; and if, after she 
 reforms, the husband is guilty of cruelty, the court will then 
 interpose. ^ 
 
 § 765. Violence in Excess of Provocation. — " If, however," 
 said Dr. Swaby, " it should appear that even misconduct on 
 the wife's part has produced a return from the husband 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, notwithstanding such wife's positive misconduct." 
 Suppose, therefore, it were proved, as alleged in the case then 
 before the court, that the husband had attempted to burn his 
 wife alive ; she might probably be entitled to a divorce, though 
 herself guilty of gross misbehavior.'' And in Evans v. Evans, 
 Lord Stowell said: " Of the character of Mrs. Evans, I shall 
 say much less ; for this reason, because it is much less con- 
 nected with the issue in the cause ; because, if the facts im- 
 puted to Mr. Evans are false, there is an end of the question. 
 On the contrary, if they are true, they are of that nature and 
 species, that they cannot be justified by any misconduct on the 
 part of Mrs. Evans ; for, 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 pre- 
 
 ' Vol. II. § 74 et seq. per v. Harper, 29 Misso. 301. And see 
 
 2 Waring v. Waring, 2 Pliillim. 132, Lalande v. Jore, 5 La. An. 32 ; Bedell 
 
 133, 1. Eng. Ec. 210, 211; Moulton v. v. Bedell, 1 Johns. Ch. 604; Devais- 
 
 Moulton, 2 Barb. Ch. 309; Poor v. mes v. Devaismes, 3 Code Reporter, 
 
 Poor, ii jf. H. 307 ; Anonymous, 4 Des. 124, 3 Am. Law Journal, n. s. 279. 
 
 94 ; Daiger v. Daiger, 2 Md. Ch. 335 ; ^ 'Waring v. Waring, supra ; Best v. 
 
 Skinner v. Skinner, 5 Wis. 449 ; Rich- Best, 1 Add. Ec. 411, 423, 2 Eng. Ec. 
 
 ards V. Richards, 1 Wright, Pa. 225, 168, 163 ; Skinner v. Skinner, 6 Wis. 
 
 228 ; Johnson v. Johnson, 14 Cal. 459, 449. 
 
 460 J Von Glahn v. Von Glahn, 46 111. * Best v. Best, 1 Add. Ec. 411, 428, 
 
 134; Reed v. Reed, 4 Nev. 396; Har- 2 Eng. Ec. 168, 163, 164. 
 
 635 
 
§ 766 ' JUDICIAL DIVORCES. [BOOK VII. 
 
 • 
 
 mature delivery, or refusing her the use of common air. In 
 every view therefore of the matter, Mrs. Evans's character has 
 nothing to do with the cause." ^ And the Alabama court 
 granted a divorce to a wife who was to blame ; because her 
 husband visited her ill conduct with a greatly disproportionate 
 degree of ill conduct on his part.^ And there are other cases 
 of the same sort.^ 
 
 § 766. Continued. — In Westmeath v. Westmeath, is a pas- 
 sage from Sir John NichoU illustrating both this point and 
 several others, thus : " Besides the endurance of many priva- 
 tions 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 seventli article : 
 ' About a month before Lady Westmeath's confinement. Lord 
 Westmeath called deponent up about four o'clock one morn- 
 ing, to go to Lady Westmeath ; when deponent went, Lady 
 Westmeath was lying in bed, and Lord Westmeath standing 
 in his dressing-gown ; deponent asked Lady Westmeath if she 
 was taken ill ; she said no ; but that Lord- Delvin [the hus- 
 band 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 observa- 
 tion, ' You provoked me to do it.' It is true, that, when he 
 has done it, he himself is frightened, and calls the maid ; but 
 he in effect admits that her statement is correct. How ungov- 
 ernable must be the passions of a husband, who, scarcely a 
 month before his wife's ctjnfinement of her first child, can be 
 
 1 Evans v. Evans, 1 Hag. Con. 35, 3 Rutledge v. Rutledge, 5 Sneed, 
 4 Eng. Ee. 310, 316; s. p. Waring v. 554; Severn v. Severn, 8 Grant, TJ. C. 
 Waring, 2 PhiUim. 132, 1 Eng. Ec. Ch. 481 ; Jackson v. Jackson, 8 Grant 
 210. U. C. Ch. 499; BidenmuUer u. Eiden- 
 
 2 King V. King, 28 Ala. 315. And muller, 87 Cal. 364. And see Thomas 
 see ante, § 754 and note. v. Tailleu, 13 La. An. 127. 
 
 636 
 
CHAP. XLIII.] CRUELTY. § 767 
 
 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." i 
 
 § 7d7. Ulustrations of Provocation barring Remedy — Limits 
 of the Doctrine. — Yet observations like the foregoing are prob- 
 ably applicable only where the facts are of a character similar 
 to those which called them forth ; ^ for, when the ill treatment 
 does not come up to the extreme point, the wife, who has been 
 greatly in fault, cannot have her divorce, though her husband 
 is not justifiable, and an indictment against him for the bat- 
 tery will lie.3 In Waring v. Waring, Lord Stowell himself 
 observed : " Though I may not be able to exonerate the hus- 
 band from blame, the wife's own conduct does not give her a 
 title to complain." * And Dr. Lushington has said : " If a 
 wife can insure her own safety by lawful obedience, and by 
 proper self-command, she has no right to come here ; for this 
 court afiFords its aid only when the necessity for its aid is 
 absolutely proved." ° Thus it was held in Louisiana, that, if 
 the wife behaves in an outrageous manner toward her hus- 
 band, and he ill-treats her, she cannot have a decree of sep- 
 aration for "this. " The law," said the court, " which provides 
 for a separation from bed and board in certain cases, is made 
 for the relief of the oppressed party, not for interfering in 
 quarrels where both parties commit reciprocal excesses and 
 outrages." ^ So in Alabama the like doctrine was laid down ; 
 yet Goldthwaite, J., added: "There are, of course, some acts 
 of violence, sucli as involve danger to life, limb, or health, — 
 acts which render it absolutely necessary for the safety of the 
 
 1 Westmeath v. Westmeath, 2 Hag. of Dr. Lushington was overruled by 
 Ec. Supp. 1, 79, 4 Eng. Ec. 238, 274. Sir Herbert Jenner Fust ; but I do not 
 
 2 Ante, § 63. understand the latter judge to have 
 8 Ante, § 754 and note, 764. dissented generally from the principles 
 * Waring v. Waring, 2 Phillim. 132, of law laid down by the former, though 
 
 144, 1 Eng. Ec. 210, 216 ; Taylor v. he did disapprove of an expression im- 
 
 Taylor, 2 Lee, 172, 6 Eng. Ec. 81 ; mediately preceding the one quoted 
 
 Kimball v. Kimball, 13 N. H. 222 ; Poor in the text. lb. 512. A further appeal 
 
 V. Poor, 8 N. H. 307. The last case was taken, but it was abandoned on a 
 
 is both able and readable. compromise between the parties, lb. 
 
 5 Dysart v. Dysart, 1 Robertson, 548 ; Wadd. Dig. 155. 
 106, 140. This case was appealed to 6 Durand v. Her Husband, 4 Mart, 
 
 the Arches Court, where the decision La. 174, Derbigny, J. Ante, § 734. 
 
 637 
 
§ 768 JUDICIAL DIVORCES. [BOOK Til. 
 
 wife that she should be separated from the husband; and, 
 when conduct of tliis character is proved, it admits of no pallia- 
 tion or excuse, if intentionally done." ^ Doubtless the court, 
 in determining whether the rule of refusing the divorce to the 
 wife whose ill conduct drew from the husband the conduct of 
 which she complains, is applicable in a particular case or not, 
 will consider, not so much wliat in obedience to the law of 
 Christianity the husband should do, but what, seeing " hus- 
 bands are men and not angels," he would naturally be 
 prompted to do.^ 
 
 § 768. Doctrine epitomized. — We may therefore lay down the 
 doctrine, that, on the one hand, though the ill conduct of the 
 wife was sucli as to contribute in a measure to what she com- 
 plains of in her husband, and though his ill conduct did not 
 reach the extreme point, still if the latter was very aggra- 
 vated, she may have her divorce for it ; ^ while, on the other 
 hand, she cannot ordinarily complain with effect if materially 
 in fault herself. Yet always the more unexceptionable her 
 conduct, the more meritorious her cause.* It may be difficult - 
 to say, precisely, how much ill behavior on her part will, in a 
 given case, taiie away her remedy. On this question it has 
 been well remarked, that " the criterion by which, in human 
 tribunals, the conduct of human beings is to be estimated, 
 should be formed, not according to the rule either of ideal per- 
 fection or of occasional excellence, but according to the stand- 
 ard 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." ^ Tlie 
 court will accordingly look at the origin of matrimonial quar- 
 rels, and see to which of the parties the first blame is to be 
 imputed ; ^ and, if the complaining wife's misconduct has been 
 
 1 David V. David, 27 Ala. 222, 224. 106, 133, 134; Taylor v. Taylor, 4 Des. 
 
 2 rieytas v. Pigneguy, 9 La. 419. 167 ; Headen v. Headen, 15 La. 61 ; 
 On this subject see also Boyd v. Boyd, Jones v. Jones, Wright, 155 ; Griffin 
 Harper, 144 ; Mayhugh v. Mayhugll, v. Griffin, 8 B. Monr. 120. 
 
 7 B. Monr. 424. And see Watkinson 5 Marshall, C. J. in Mayhugh v. 
 
 V. Watkinson, 12 B. Monr. 210. Mayhugh, 7 B. Monr. 424. 
 
 3 See Doyle v. Doyle, 26 Misso. 545, " Mayhugh v. Mayhugh, supra ; 
 617. Waring v. Waring, 2 PhiUim. 132, 1 
 
 * Holden v. Holden, 1 Hag. Con. Eng. Ec. 210, 212. 
 453 ; Dysart v. Dysart, 1 Robertson, 
 638 
 
CHAP. XLIII.] CRUELTY. § 770 
 
 provoked by her husband, this will weigh materially in her 
 favor.i On the other hand, if she has fallen into any impro- 
 priety, though not criminal in it, and her husband's jealousy is 
 thereby 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 adultery 
 and accuses her of it, she should not increase his suspicions by 
 her conduct, but strive to allay them.^ 
 
 VI. The Distinction between the Law and the Evidence on this 
 
 Subject. 
 
 § 769. General Views. — In the foregoing discussions is 
 embraced, under the head of the law as distinguished from the 
 evidence, almost the entire chapter which in the one-volume 
 editions was devoted both to the law and the evidence. Yet, 
 in ti'uth, what is brought forward in this chapter, as it stands 
 in the present edition, pertains in part to the evidence, not 
 wholly to the law. The intent with which an act of violence 
 was committed by the husband is plainly for the jury. And 
 where all the acts are brought together, and their intent is 
 settled, still it remains a question of fact, not of law, whether 
 the result shows that the continuance of the cohabitation would 
 be attended with danger to the complaining party. But danger 
 of what? And to what degree? The kind and degree of 
 danger must necessai'ily pertain to the law of the case ; while 
 yet it is a thing of fact that danger, of the kind and to the 
 degree ascertained, does or does not exist ; and upon this 
 qiiestion of fact the jury should pass, not the court. These 
 propositions, resting in legal reason, the author states with 
 confidence in their correctness, yet he is not able to verify 
 them by adjudication. If they are accepted, they will, by 
 analogy, explain most of the particular questions of difficulty 
 which are likely to arise iinder this head. 
 
 § 770. Cresswell's Distinction. — In a late Englisli case, the 
 judge ordinary, Sir C. Cresswell, observed : " I apprehend 
 that, in such a case as this, I shall be bound to direct the jury 
 
 1 Graecen v. Graecen, ] Green Ch. Anthony v. Anthony, 1 Swab. & T. 
 469 ; Basoom v. Bascom, Wright, 632. 594. 
 
 2 Mayhugh v. Mayhugh, supra ; ' Harper v. Harper, 29 Misso. 301. 
 
 639 
 
§ 771 JUDICIAL DIVORCES. [BOOK VII. 
 
 what acts constitute legal cruelty, and they will have to find 
 whether the acts done are cruelty or not ; " as well as find 
 whether the alleged acts were done.i These observations 
 come within the general doctrine as stated in our last section. 
 
 CHAPTER XLIV. 
 
 DESERTION. 
 
 771-776. Introduction. 
 
 777-782. The Ceasing to cohabit. 
 
 783-794 a. The Intent to desert. 
 
 795-808. The Justification. 
 
 809, 810. Continuity of the Desertion. 
 
 811. Distinction between the Law and the Evidence. 
 
 § 771. How by the Unwritten Law — Restitution of Conjugal 
 Eights — Present English Law. — The law of England, as 
 imported by our forefathers into this country, did not allow of 
 divorce for the desertion of one of the married parties by the 
 other.2 Yet it provided the suit for the restitution of conjugal 
 rights, as a sort of substitute for justice. By this proceeding 
 the delinquent party is compelled to return to cohabitation, if 
 the other, says Blackstone, " be weak enough to desire it." ^ 
 Either the husband or the wife may appear as complainant 
 
 1 Tomkins v. Tonakins, 1 Swab. & the woman to marry again. But the 
 T. 168, 169. truth is, no absence, be it for any time 
 
 2 Godolphin says : " The civil and whatever, doth properly cause a di- 
 cauon law do allow of divorce, after a vorce in law. Indeed, seven years' 
 long absence, but are not agreed touch- absence, without any tidings or intel- 
 ing the time of that absence; for in ligence of or from the absent party, 
 one place it is after two years, in an- will so far operate in law towards what 
 other after tliree years, in another after is equivalent to a divorce as to indem- 
 four. Others hold, that the civil law pnise the woman from the penalty of 
 requires five years' absence before polygamy, if in that case she marry 
 there may be a divorce on that ac- again. Also the canon law hath de- 
 count. In the Council of Lateran, a creed, that, if the wife refuse to dwell 
 sentence was allowed by the whole with her Christian husband, he may 
 council, which was given by a bishop, lawfully leave her." Godol. Ah. 194. 
 pronouncing a divorce for a woman And see, on the subject of desertion, 
 complaining that her husband had been ante, § 26, 40. 
 
 absent ten years, giving also leave to ^ 3 Bl. Com. 94. And see ante, § 28. 
 640 
 
CHAP. XLIV.] DESERTION. § 773 
 
 in this suit against the other, when delinquent. If the wife, 
 for example, brings the suit and establishes her claim, there 
 is a decree that the husband receive her back, and likewise 
 treat her with conjugal affection ; and he will not be discharged 
 from the suit until he has complied with both branches of the 
 decree.! Should he refuse obedience, the court, on her 
 prayer (this is the former practice of the ecclesiastical courts), 
 will pronounce him in contempt ; and he will be imprisoned 
 until, he obeys. Even the court itself cannot release him on 
 any other condition than obedience.^ The late English statute 
 of 20 & 21 Vict. c. 85, provides, in § 16, for the judicial 
 separation, not only on the grounds of cruelty and adultery, 
 but likewise of "desertion without cause for two years and 
 upwards." The suit for the restitution of conjugal rights, 
 however, is not abolished, but is maintainable in the new 
 court.^ 
 
 § 772. How in United States. — In the United States, the 
 remedy for desertion, where any remedy is provided by law, is 
 a suit for divorce. The suit for the restitution of conjugal 
 rights has not been adopted in any of our States ; * but the 
 principles which govern this suit are, to some extent, applicable 
 to the divorce suit. We shall therefore have occasion to con- 
 sider those principles a little in this chapter. 
 
 § 773. Varying Terms of our Statutes. — The offence of deser- 
 tion, as a ground of divorce, is described in various language 
 in the statutes of the different States ; but the several phrases 
 employed, when brought by interpretation into conjunction 
 with the general doctrines which govern this department of 
 our jurisprudence, produce substantially the same legal mean- 
 ing. Thus, under a statute of Mississippi, which provided a 
 
 1 Gill V. Gill, cited in Orme v. Orme, T. 81; Hope v. Hope, 1 Swab. & T 
 2 Add. Ec. 382, 2 Eng. Ec. 354, 355; 94; Sopwith v. Sopwlth, 2 Swab. & T 
 Evans v. Evans, 1 Hag. Con. 35, 4 160 ; Burroughs v. Burroughs, 2 Swab 
 Eng. Ec. 310, 349. & T. 303, 544 ; Scott v. Scott, 4 Swab 
 
 2 Barlee v. Barlee, 1 Add. Ec. 301. & T. 113 ; Aaqaezv. Anquez, Law Rep, 
 For special circumstances, however, in 1 P. & M. 176 ; Blackborne v. Black 
 which, by the aid of certain EngUsh borne, Law Rep. 1 P. & M. 563 ; Qro 
 statutes, the husband in contempt was thers v. Crothers, Law Rep. 1 P. & M 
 discharged from imprisonment without 568 ; Miller v. Miller, Law Rep. 2 P. & 
 obedience to the original sentence, see M. 13. 
 
 Lakin v. Lakin, 1 Spinks, 274. * Ante, § 31. And see Cruger v. 
 
 3 Hayward v. Hayward, 1 Swab. & Douglas, 4 Edw. Ch. 433, 506. 
 VOL. 1. 41 641 
 
§ 773 JUDICIAL DITOBCBS. [BOOK Til. 
 
 divorce from the bond of matrimony " for- wilful, continued, 
 and obstinate desertion for the space of three years ; " ^ of 
 Florida, " for wilful, obstinate, and continued desertion, by 
 either party, for the term of a year ; " ^ of Connecticut for 
 " wilful desertion for three years, with total neglect of duty by 
 the other party ; " ^ of Ohio, " where either of the parties shall 
 have been wilfully absent from the other for three years ; " * 
 of Iowa, when either party " wilfully deserts " the other, " and 
 absents himself, without a reasonable cause, for the space of 
 one year ; " ^ of Pennsylvania, when either party is chargeable 
 with " wilful and malicious desertion, and absence from the 
 habitation of the other, without a reasonable cause, for and 
 during the space of two years ; " ® of Missouri, " when either 
 party- has absented herself or himself, without a reasonable 
 cause, for the space of two years ; " '' of New Hampshire, 
 " when either party, without sufficient cause, and without con- 
 sent of the other, shall have abandoned such other, and refused 
 for three years to cohabit with such other ; " ^ of Georgia, for 
 " wilful and continued desertion " for three years ; ® of Califor- 
 nia, for " wilful desertion by either party for the period of two 
 years ; " i° — the offence which authorizes a divorce is com- 
 mitted by an abandonment of the like kind, differing only in 
 the period of its con ti nuance. ^^ These specimens of phrases 
 will serve to illustrate the whole.^^ 
 
 1 Fulton V. Fulton, 36 Missis. 517. is true throughout these volumes. The 
 The New Jersey statute is in like statutes are continually changing, and 
 terms. Cook v. Cook, 2 Bearsley, 263. I exhort each practitioner to consult 
 
 2 Thompson's Digest, p. 223. for himself the existing enactipents of 
 5 R. S. of 1849, c. 2, § 10, his own State. 
 
 < Swan's Stat, of 1840, c. 40, § 1. 12 As to the Kentucky statute, see 
 
 5 Code of Iowa, of 1851, p. 223. Becket v. Becket, 17 B. Monr. 370, and 
 
 6 Stat, of March 13, 1815, Dunlap's Watkinson v. Watkinson, 12 B. Monr. 
 Laws, p. 319 ; Butler v. Butler, 1 Par- 210 ; as to the Maryland, Brown v. 
 sons, 329. Brown, 2 Md. Ch. 316, and Levering v. 
 
 f Freeland v. Freeland, 19 Misso. Levering, 16 Md. 213. The Massa- 
 
 354. chusetts statute on this subject has 
 
 8 Payson v. Payson, 34 N. H. 518. varied ; at the present time it stands 
 
 9 Word V. Word, 29 Ga. 281. thus : " A divorce from the bond of 
 '0 Benkert v. Benkert, 32 Cal. 467. matrimony may be decreed in favor 
 " To avoid misapprehension, I wish of either party when one party has 
 
 to state explicitly, that, in the text, I deserted the other for five years con- 
 have not aimed to give the present secutively ; provided, that, when the 
 statute law existing in the States men- libel is filed by the party deserting, it 
 tioned ; and what is true of this section appears that the desertion was caused 
 642 
 
CHAP. XLIV.] DESERTION. § 774 
 
 §774. Scotch Law — Louisiana. — The Scotch statute was 
 enacted in 1573, and it is as follows : It provides, that, if either 
 the husband or wife " divertis fra uther's companie without ane 
 reasonable caiise 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 hus- 
 band 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 oflPender befoir the Judge Ordinar for adher- 
 ence. And in case no sufficient causes be alledged quhairfoir 
 iia adherence suld be, but that the sentence pi-oceedis 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 foi-mes, 
 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 juris- 
 diction and power, and require the lauchful archbishop, bisliop, 
 or superintendant of the countrie quliair the offender remaines, 
 to direct privie admonitiones to the said offender, admoniscliiiig 
 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 
 naiie, or that the minister will not execute, to the minister of 
 tlie next adjecent kirk theirto, Quha sail proceede against the 
 said offender with publick admonitiones, and gif they be con- 
 temned, to the sentence of excommunication — Quhilk anis 
 
 by extreme cruelty of the other party, legal effect as is herein mentioned) 
 
 or that the desertion by the wife was may be obtained either by the husband 
 
 caused by the gross or wanton and or the wife on the ground of adultery 
 
 cruel neglect of the husband to provide or cruelty, or desertion, without cause 
 
 suitable maintenance for her, he being for two years and upwards." And by 
 
 of sufficient ability so to do " Gen. § 27 of the same statute, adultery in 
 
 Statutes, c. 107, § 7. For the earlier the husband may be available to the 
 
 statutes of this State on the subject, wife as a ground of divorce from the 
 
 see the eariier editions of this work, bond of matrimony, when, among other 
 
 The English Stat. 20 & 21 Vict. c. 85, things, it is " coupled with desertion 
 
 § 16, provides, that "a sentence of without reasonable excuse for two 
 
 judicial separation (which shall have years or upwards." For a fuller 
 
 the effect of a divorce a mensa et thoro sketch of the present English statutory 
 
 under the existing law, and such other law, see ante, § 65, note. 
 
 643 
 
§ 775 JUDICIAL DIVOECES. [BOOK VII. 
 
 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 dona- 
 tiones propter nuptias." Eraser says, that " the only particu- 
 lars 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." ^ The Louisi- 
 ana statute is, or at some period was, modelled somewhat upon 
 the Scotch. The abandonment must be made to appear by 
 three iterated summonses, from month to month, to the party, 
 to return to the matrimonial doiiiicil ; each one followed by a 
 sentence, to be served on the delinquent, ordering the return.^ 
 And there may be some of our other States in which the law of 
 desettion, as seen in the statutes, differs more or less from the 
 law as drawn out in the statutes quoted in our last section. 
 
 § 775. "Desertion" — ""Wilful Desertion" — "MaUcious Deser- 
 tion " — How the Varying Statutory Terms construed. — Probably 
 the single word " desertion," or the words " wilful absence," 
 with no qualification except that of time, would alone convey the 
 full legal meaning contained in most of the foregoing statutory 
 provisions ; because, if the plaintiff had consented to the ab- 
 sence, he would be barred on the ground of connivance ; if the 
 separation had been interrupted by an interval of cohabitation, 
 this cohabitation would, as a condonation, cut off the right to 
 complain of the previous conduct, unless indeed the doctrine of 
 the conditional quality of the condonation should be literally 
 applied here ; and, in every view, the absence could not be a 
 ground of divorce unless wilful. Yet in Tennessee, where the 
 words of the statute were " wilful and malicious desertion or 
 absence by the husband or wife, without a reasonable cause, 
 for the space of two years," — the court gave stringent and 
 peculiar effect to the word " malicious ; " making it 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 
 
 1 1 Fras. Dom. Eel. 680, 681. Since fected the Scotch law on this subject, 
 
 Fraser wrote, the " Conjugal Eights but not essentially. 
 Amendment Act of 1861" (24 & 25 2 Perkins w. Potts, 8 La. An. 14. See 
 
 Vict. c. 86) may have somewhat af- further as to the Louisiana statute, 
 
 644 
 
 MuUer v. Hilton, 13 La. An. 1. 
 
CHAP. XLIV.J DESERTION. § 777 
 
 the judge said, that such malice " must be the motive which 
 induced the desertion," and no other motive will stand in its 
 stead. The point adjudged, however, was simply, that to 
 allege and prove a mere absence " without any just or probable 
 cause " during the statutory period would not authorize the 
 judgment of divorce under the statute.^ Clearly, however, this 
 Tennessee construction, if we look at the dicta of the court and 
 not at the mere point decided, is different from what is given 
 to similar words elsewhere.^ Indeed it may be set down as the 
 better view, that a wilful abandonment of matrimonial cohabi- 
 tation is in contemplation of law malicious.^ 
 
 § 776. Definition — How the Chapter divided. — The reader 
 will find, in the subsequent sections of this chapter, a suffi- 
 ciently full statement of the doctrines which pertain to this 
 subject of desertion ; but it will be convenient and helpful to 
 , him to be furnished, in advance, with the following definition : 
 Desertion, in divorce law, is the voluntary separation of one of 
 "vtlie 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,'\ In discuss- 
 ing this subject, we shall follow substantially the order of the 
 definition, considering, I. The Ceasing to cohabit; II. The 
 Intent to desert ; III. The Justification ; and, as supplemental 
 to this discussion, lY. The Continuity of the Desertion ; V. 
 The Distinction between the Law and the Evidence. 
 
 I. The Ceasing to cohabit. 
 
 § 777. T-wo Elements of the Offence — - (Meaning of Word 
 " Cohabitation," in the Note). — Plainly the offence of desertion, 
 considered without reference to matter which may exist in jus- 
 tification, consists in, first, the actual ceasing of the cohabita- 
 tion ; * and, secondly, the intent in the mind of the offending 
 
 1 Stewart v. Stewart, 2 Swan, Tenn. vorce cannot be obtained." Rutledge 
 
 591. In another case, where the sepa- v. Kutledge, 5 Sneed, 554, 556, opinion 
 
 ration was in accordance with the wish by Caruthers, J. 
 
 of tlie complaining party, it was held ^ i Bishop Grim. Law, 5th ed. §427- 
 
 not to be sufficient under the statute. 429. 
 
 And the judge observed : " If the party 3 McClurg's Appeal, 16 Smith, Pa. 
 
 goes or remains away for ' reasonable 366. 
 
 cause,' or even without good and suffi- * The meaning of the word " cohab- 
 
 cient cause, but not of malice, the di- itation," as used in our books of the 
 
 645 
 
§777 
 
 JUDICIAL DIVOBCES. 
 
 [book vn. 
 
 party to desert the other. These two ingredients must com- 
 bine.^ But it is wholly immaterial whether the distance to 
 
 law, is perhaps plain enough; but there 
 has been in regard to it a manifest con- 
 fusion in some minds. Therefore, as 
 precision is of the highest importance in 
 every statement of legal doctrine, I 
 have usually in these Tolumes employed 
 some other word in its stead. Webster 
 defines cohabitation thus : " 1. The act 
 or state of dwelling together, or in 
 the same place with another. 2. The 
 state of liTJng together as man and 
 wife, without being legally married." 
 Worcester defines cohabit, " to live 
 together; to dwell with another; to 
 live together as husband and wife." 
 ililton writes of a man's leaving " the 
 dear cohabitation of his father, mother, 
 brothers, and sisters." On the other 
 hand. Chancellor Walworth, in Dunn 
 V. Dunn, 4 Paige, 425, 428, apologizes 
 for a solicitor and his cUent, in respect 
 to some proceedings, on the ground of 
 their "ignorance," in not understand- 
 ing '* wliat the legal meaning of cohabi- 
 tation was ; and that they both under- 
 stood that voluntary cohabitation 
 meant nothing more than that they 
 slept together in the same bed." I am 
 not aware that other judges have often 
 employed this word to denote actual 
 sexual intercourse, further than may 
 be presumed from the dwelling together 
 in the same house of parties under the 
 claim of being married ; or as necessa- 
 rily implying even an occupancy, by 
 the husband and wife, of the same bed. 
 The words "matrimonial cohabitation" 
 have even been used, in distinction 
 from " matrimonial intercourse," to 
 signify a living together in the same 
 house, without copula. Thus, Lord 
 Stowell adopts the expression of Dr. 
 Harris, one of the advocates of the Ec- 
 clesiastical Court, that " the duty of 
 matrimonial intercourse cannot be com- 
 pelled by this court, though matrimo- 
 nial cohabitation may." Forster v. 
 Forster, 1 Hag. Con. 144, 154, 4 Eng. 
 Ec. 358, 363. And where the wife 
 alleged, that, while the husband allowed 
 her to reside in the same house with 
 
 646 
 
 him she was "denied access to his person 
 and bed, and refused common necessa- 
 ries for her support," Sir Christopher 
 Robinson observed ; " The parties are 
 admitted to be actually cohabiting ; " 
 though there was no " matrimonial in- 
 tercourse." Orme v. Orme, 2 Add. Ec. 
 823, 2 Eng. Ec^ 854. See Eogers Ec. 
 Law, 2d ed. 896. In another case. Lord 
 Stowell observed concerning the proof 
 of adultery, that, where parties who 
 are alleged to have committed the of- 
 fence " have gone so far as to perform 
 the ceremony of marriage in a church, 
 and they have since lived together os- 
 tensibly as man and wife, that fact, so 
 assisted by the subsequent cohabitation 
 is strong presumptive evidence of an 
 adulterous intercourse, and will fix it." 
 Xash V. Nash, 1 Hag. Con. 140, 4 Eng. 
 Ec. 357. And to go a little further 
 back, the author of the preface to Swin- 
 burne on Spousals, speaMng of the 
 contract of marriage per verba de proe- 
 senti, without formal solemnization, 
 says : " In some places the woman, 
 after these spousals, presently cohabited 
 with the man, but continued unknmvn 
 until the marriage day." In Ohio v. 
 Conoway, Tappan, 58, a decision, not 
 of the highest court of the State, but 
 useful as showing the meaning of a 
 word, " cohabitation " was defined to 
 signify " a Uving together in one 
 house," in distinction from a mere 
 travelling in company together ; and 
 the judge plainly did not understand its 
 import to extend further. See also 
 Commonweafth v. Calef, 10 Mass. 158. 
 I know, indeed, of no legal authority or 
 usage contrary to this view, except the 
 mere casual misapprehension — for 
 such I deem it to have been — of Chan- 
 cellor Walworth, referred to above. 
 
 1 Hardenbergh v. Hardenbergh, 14 
 Cal. 654 ; Morrison v. Morrison, 20 Cal. 
 481. " Desertion," said Christian, J., 
 in a Virginia case, following the expo- 
 sitions given in this work, "is a breach 
 of matrimonial duty, and is composed 
 first, of the actual breaking off" of the 
 
CHAP. XLIV.] DESERTION. § 778 a 
 
 which the parties remove apart is great or small ; except per- 
 haps as illustrating, under some circumstances, in matter of 
 evidence, their intent ; for the criterion in all cases is the intent 
 to abandon.^ 
 
 § 778. Refusing Copula — Refusing to have Impediment re- 
 moved. — We have seen,^ that, where one of the parties to a 
 marriage refuses to consummate it by sexual intercourse ; or 
 even, according to some opinions, when the party having a phys- 
 ical impediment to the consummation, removable by.a surgical 
 operation, refuses to be operated upon ; the marriage is not 
 voidable on the ground of impotence. But whether the refusal 
 in either of these cases, or the utter withdrawal, after consum- 
 mation, of one of the parties from the matrimonial bed, without 
 any withdrawal from general cohabitation, is a sufficient sepa- 
 ration to sustain the suit for desertion, seems not to be entirely 
 clear. In England, the suit for the restitution of conjugal 
 rights could not, ordinarily at least, be maintained in such cir- 
 cumstances ; for, observes Sir Christopher Robinson, " matri- 
 monial 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 interfere." ^ Yet in Eng- 
 land it is doubtful, whether the court would discharge a hus- 
 band proceeded against in such a suit, until he had received 
 his wife, not only to his habitation, but to the matrimonial bed.* 
 
 § 778 a. Continued. — Since the last section was originally 
 
 matrimonial cohabitation, and secondly, * Orme v. Orme, supra. A writer 
 
 an intent to desert in the mind of the in the London Law Magazine, vol. 50, 
 
 offender. Both must combine to make p. 275, shows, that, by the canon law, 
 
 a desertion complete But it is from which the suit for the restitution 
 
 equally obvious, and it follows from of conjugal rights was derived, the 
 
 well settled principles of law, that court would compel carnal copulation ; 
 
 when a separation and intent to dejert but he thinks the English tribunals 
 
 are once shown, the same intent Will have altered the rule on this point, for 
 
 be presumed to continue until the con- the purpose of reheving somewhat the 
 
 trary appears." Bailey v. Bailey, 21 asperities of a cruel and unjust pro- 
 
 Gratt. 43, 47. ceeding, which he considers this suit to 
 
 1 Ahrenfeldt v. Ahrenfeldt, 1 Hoff be. Where, in this suit, the husband 
 
 man, 47 ; Gregory u. Pierce, 4 Met. is defendant, and is ordered to receive 
 
 478. his wife home, he is bound to take the 
 
 ^ Ante, § 332. first step by inviting her to return to 
 
 ^ Orme v. Orme, 2 Add. Ec. 882, 2 him. If he does not, an attachment 
 
 Eng. Ec. 354 ; Eorster v. Forster, 1 against him will be issued. Alexander 
 
 Hag. Con. 144, 154, 4 Eng. Ec. 358, v. Alexander, 2 Swab. & T. 385. 
 363. 
 
 647 
 
§ 778 a JUDICIAL DIVORCES. [book VII. 
 
 written, some cases have arisen shedding some further hght 
 oil the subject. Thus, in England, it has been adjudged in 
 the divorce court that the refusal of a wife to accept the em- 
 braces of her husband is not alone sufiBcient to bar her claim 
 for a judicial separation on the ground of his adultery and 
 cruelty. Said the judge ordinary, " There is no doubt, after 
 the case of Orme v. Orme,^ that, although this court enforces 
 conjugal cohabitation, it does not pretend to enforce marital 
 intercourse. The reasons why it does not embark in such an 
 attempt are sufficiently obvious. But on this very ground 
 perhaps a complaint of this nature ought to receive its full 
 weight as matter of recrimination. The matter here com- 
 plained of ought to, and does oftentimes find a place in that gen- 
 eral review of conjugal life which, on a question of cruelty or 
 even of recrimination, is in such cases imposed on the court." 
 But, standing quite alone, the learped judge deemed it not to 
 be sufficient.^ And the New Jersey court has held, that, though 
 this sort of conduct is wrong in the wife, it does not justify 
 the husband in deserting her.^ In Massachusetts, the question 
 came squarely before the court in a case where, during the 
 statutory period for desertion to ripen into a ground for divorce 
 from the bond of matrimony, a wife, taking offence because 
 her husband permitted a son to enlist in the -army, excluded 
 him from her bed, declaring that she did not love him, she 
 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." Thereupon the 
 court held that this was not desertion, and denied the hus- 
 band's prayer for divorce. Said Bigelow, C. J. : " The word 
 desertion in the statute does not signify merely a refusal of 
 matrimonial intercourse, 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 abnegation of all the duties and obligations 
 resulting from the marriage contract." * We shall see, as 
 we proceed with this chapter, that the term desertion does not, 
 
 1 Orme v. Orme, 2 Add. Ec. 382. 3 Reid v. Eeid, 6 C. E. Green, 331. 
 
 2 Rowe V. Rowe, 4 Swab. & T. 162, * Southwick v. Southwick, 97 Mass. 
 163. 327, 328. 
 
 648 
 
CHAP. XLIV.J DESERTION. § 779 
 
 according to the concurring judgment of all the courts before" 
 which the question has come, as expressed in actual decision, 
 mean what the learned judge in this extract assumes it to mean. 
 On the other hand it may exist without " an abnegation of all 
 the duties and obligations resulting from the marriage con- 
 tract ; " for, if a husband refuses to dwell in the same house with 
 his wife, but supports her, this, all hold, amounts to desertion 
 of her by him.^ This doctrine has been expressly recognized in 
 Massachusetts.^ The duty of the husband to support his wife 
 is one of the chief duties growing out of the contract of mar- 
 riage. And the law has provided various means by which 
 this duty is enforced. Matrimonial intercourse is another of 
 the chief duties ; the law deems it to be so important that it 
 holds a marriage voidable which is entered into by a party 
 having no physical capacity to perform it. Consequently it is 
 nowhere true in matter of adjudged law, that desertion " in- 
 volves an abnegation of all the duties and obligations resulting 
 from the marriage contract." 
 
 § 779. Continued. — Looking, then, at. this question in the 
 light of legal principle, and remembering that it is not neces- 
 sary, in order to constitute desertion, that every obligation 
 imposed by the marriage should be cast off, if, aside from all 
 special or temporary considerations, as of health, a wife should 
 iitterly refuse to dwell with her husband as wife, why should 
 not the refusal be deemed a desertion, even though she were 
 willing to remain with him as a servant or a daughter ? It is 
 a familiar principle in the interpretation of statutes, that tliey 
 are to be shaped and moulded to harmonize with the unwritten 
 law.^ As, therefore, the unwritten law makes the marriage 
 voidable where from the time of its solemnization onward there 
 is no power of copula, so the statute granting divorce for 
 desertion puts it in the power of the party to have it dissolved 
 when, without reason and maliciously, the other party refuses 
 copula. By this interpretation, the statute and the common 
 law are brought into harmony. And, in reason, if the ends of 
 marriage are frustrate when there is no power of copula, much 
 
 1 See, for example, Macdonald v. ^ Magrath u. Magrath, 103 Mass. 
 Macdonald, 4 Swab. & T. 242; Yeat- 577. 
 
 man v. Yeatman, Law Eep. 1 P. & M. 3 Bishop Stat. Crimes, § 114, 119, 
 489. 124,144. 
 
 649 
 
§ 780 JUDICIAL DIVORCES. [BOOK VII. 
 
 more are they so when the same thing is wilfully and perpetu- 
 ally refused. And if the one, proceeding from a physical 
 incapacity, and so not within the party's control, is a wrong 
 demanding legal redress, much more is the other over which 
 the party has control. In accord with this view, there is a 
 case which holds, that a husband, who has already deserted 
 his wife, cannot so take off the effect of the desertion as to 
 prevent her right to a divorce accruing, by offering, a short 
 time before the expiration of the period specified in the statute, 
 to support her either in Ms 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 tlie offer to stand in any 
 other relation." ^ Indeed, for a husband to support his wife 
 in his own house, while he denies her what is meant by mar- 
 riage, is, for a reason suggested in another chapter,^ not 
 unfrequently a much greater wrong than to give her the 
 means of support away. Still, as observed in the last section, 
 it has been held, that, though the husband takes a separate 
 bed from his wife, she is not thereby justified in leaving his 
 house.^ It is not always easy to harmonize differing and isolated 
 legal propositions ; but, as to the last, the true view undoubt- 
 edly would be, that, unless the taking of the separate bed had 
 ripened into a statutory desertion by time, it would not justify 
 her leaving his house ; but, if it had, it would justify her, and 
 likewise furnish ground for a divorce against him. 
 
 § 780. Continued — Joining the Shakers. — A statute of NeW 
 Hampshire provided, " that any husband or wife separating 
 him or herself from tlie other, and joining and uniting him or 
 herself with any religious sect or society that believes, or pro- 
 fesses 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, wlio 
 shall not have joined and continued united with such sect or 
 
 1 Fishli V. Fishli, 2 Litt. 337. See 3 Eshbachu. Bshbach, 11 Harris, Pa. 
 also Moss V. Moss, 2 Ire. 55. 343. 
 
 2 Ante, § 738. 
 
 650 
 
CHAP. XLIV.J BESERTION. § 781 
 
 society, shall be deemed and taken to be a sufficient cause of 
 divorce from the bonds of matrimony." And in a suit by the 
 wife, for the husband's desertion within this statute, the court 
 held, " that the Shakers believe or profess to believe the rela- 
 tion between husband and wife void or unlawful ; " the evidence 
 being, that they acknowledge the husband's duty to maintain 
 his wife, and hers to conduct herself in a discreet and seemly 
 way in submission 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 i 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 con- 
 tinuation 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." ^ 
 
 § 781. Continued — The Scotch Law. " — For a gleam of re- 
 maining light, we may refer to the Scotch law. Fraser says : 
 " The diversion justifying divorce has hitherto been confined 
 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 the pur- 
 suer, and the same bed, and yet refuses conjunctionem 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 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 
 
 1 From the connection, and from say, the Shakers belieTe " that it is un- 
 
 other expressions in the report, it lawful for man and wife to cohabit 
 
 plainly appears that the court here use together as man and wife." See ante, 
 
 the word cohabitation in the sense of § 777, note, 
 sexual intercourse. For instance, they ^ Dyer y. Dyer, 5 N. H. 271. 
 
 ■651 
 
§ 782 JUDICIAL DIVORCES. [BOOK VII. 
 
 act.' It would seem, however, that it is desertion. Marion 
 Graham applied 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 held of his 
 place of Buquhanane, and hes abstractit his bodie fra hir con- 
 tinewallie sinsyne, and haldin hir thairin inclusit, and will not 
 put hir to libertie and freedom, and adheir, treit, and entertein 
 hir at bed and buird.' Here the parties were living in the 
 same house, yet the wife asked 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 hus- 
 band 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.^ 
 
 § 782, Contmued. — This question, as one of principle, is 
 perhaps not quite without difficulty. Still, as reinforcing what 
 is said in the foregoing sections it may be observed, that, if a 
 party to the marriage -should refuse to the other party what- 
 ever lawfully belongs in marriage alone, — refuse, not from 
 considerations of health, not from any other temporary con- 
 siderations, but from alienation of affection, from perverted 
 religious notions, or from any other cause resting permanently 
 in the will, and not in physical inability, — the refusing party 
 would thereby voluntarily withdraw from whatever the relation 
 of marriage, distinguished from every other relation subsisting 
 between human beings, is understood to imply. Therefore he 
 should be holden to desert thereby the other. Gases might 
 arise wherein the proofs would fail ; but, let it here be said 
 again, as it has been more than once said in these pages, no 
 just judge will suffer a cause to slip when clearly proved, 
 because of any difficulty which parties may be supposed to 
 encounter in proving other similar cases.^ 
 
 ' 1 Fras. Dom. Eel. 681. And see ' And see, as faToring the views 
 ib. 55. expressed in this section, Heermance v. 
 
 2 Arthur v. Gourlay, 2 Paton, 184. James, 47 Barb. 120, 126, 127. 
 As to which point, however, see Gray 
 V. Gray, 15 Ala. 779. 
 
 652 
 
CHAP. XLIV.] DESERTION. § 784 
 
 II. The Intent to desert. 
 
 § 783. General Doctrine — Consent — Necessary Absence. — 
 The matter oftenest arising for consideration in these cases is 
 the intent to desert. A mere absence of the husbaird on busi- 
 ness ; ^ or a separation of the parties by mutual consent, made 
 with "^ or without ^ the further understanding that one of them 
 shall apply for a divorce ; is plainly not desertion in either. 
 Neither, as a question of evidence, can desertion be inferred 
 against either, from the mere unaided fact of their not liv- 
 ing together;* though protracted absence, with other cir- 
 cumstances, may in matter of evidence establish the original 
 intent.^ 
 
 § 784. Besertion commencing or not vrtth Separation. — The 
 separation and desertion are neither necessarily in theory, nor 
 always in the facts of the cases, identical in the time of their 
 commencement. Thus, if a husband or wife leaves the matri- 
 monial habitation for a temporary purpose, intending to return, 
 but afterward resolves to remain away, the desertion begins 
 at the time when this new purpose is formed.^ And where 
 parties had been living separate for a considerable period, and 
 the cause of their separation did not appear, but the husband 
 had contributed to his wife's support, he was held to have 
 deserted her, at least from the time when he withdrew the sup- 
 port and wrote her a letter wherein, among other things, he 
 said : " 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 mainte- 
 
 .1 Ex parte Aldridge, i Swab. & T. v. Gaines, 9 B. Monr. 295, 303 ; Butler 
 
 88; WOUams v. Williams, 3 Swab. & v. Butler, 1 Parsons, 329; Stokes v. 
 
 T. 547. Stokes, 1 Misso. 320 ; Scott u. Scott, 
 
 ' Mansfield u. Mansfield, Wright, Wright, 469; Pidge v. Pidge, 8 Met. 
 
 284. 257, 258 ; Van Voorhees v. Van Voor- 
 
 3 Crow V. Crow, 23 Ala. 583 ; Gray hees, Wright, 636 ; McCoy v. McCoy, 
 
 J). Gray, 15 Ala. 779 ; Vanleer v. Van- 3 Ind. 555 ; Cook v. Cook, 2 Beasley, 
 
 leer, 1 Harris, Pa. 211 ; Ward v. Ward, 263 ; Jennings v. Jennings, 2 Beasley, 
 
 1 Swab. & T. 185 ; Fulton v. Fulton, 36 38. 
 
 Missis. 517 ; McKay v. McKay, 6 Grant, 5 Ahrenfeldt v. Ahrenfeldt, 1 Hofi' 
 
 U. C. Ch. 380; Buckraaster «. Buck- man, 47. 
 
 master, Law Rep. 1 P. & M. 713; Lea 6 Reed v. Eeed, Wright, 224; Pink- 
 
 V. Lea, 8 Allen, 418 ; Ingersoll v. Inger- hard v. Pinkhard, 14 Texas, 356 ; Con- 
 
 soll, 13 Wright, Pa. 249. ger v. Conger, 2 Beasley, 286. 
 
 * Jones V. Jones, 13 Ala. 145 ; Gaines 
 
 653 
 
§ 784 a JUDICIAL DIVORCES. [book vii. 
 
 nance and expenses, all in all, payable to you weekly, by a 
 
 tliird person Finally, I wish whatever settlement is 
 
 made between us is to be done by a legal divorce. The tie is 
 broken ; and it is better for us to live as happy as possible 
 separate, fhan to lead an unhappy life together, and show a bad 
 example to our children." ^ 
 
 § 784 a., Continued. — In apparent contradiction to a doc- 
 trine laid down in the last section, we have a dictum proceed- 
 ing both from an English and an American judge. In an 
 English case, the facts of which showed that there was no 
 desertion according to any admissible view of them, Lord 
 Penzance adopted a course of reasoning leading to this just 
 conclusion, the effect of which, if the subject is not carefully 
 examined, may be unfortunate. ' After admitting that the 
 separation and desertion need not concur in point of time in 
 cases where the separation was meant to be only temporary, 
 he added, that such cases " have no analogy with a case in 
 which a wife, who complains of desertion, has herself voIuut 
 tarily ceased to live with her husband, and an actual separa- 
 tion has already occurred, not in obedience to any external 
 necessity, but for the express purpose of avoiding continued 
 intercourse," he proceeded : " I come, then, to the following 
 conclusions as applicable to cases of this kind. No one can 
 ' desert ' who does not actively and wilfully bring to an end 
 an existing state of cohabitation. Cohabitation may be put an 
 end to by other acts besides that of actually quitting the 
 common home. Advantage may be taken of temporary 
 absence or separation to hold aloof from a renewal of inter- 
 course. This done wilfully, against the wish of the other 
 party, and in execution of a design to cease cohabitation, would 
 constitute ' desertion.' But if the state of cohabitation has 
 already ceased to exist, whether by the adverse act of husband 
 or wife, or even by the mutual consent of both, ' desertion ' in 
 my judgment becomes from that moment impossible to either, 
 at least until their common life and home have been resumed. 
 In the mean time either party may have the right to call upon 
 the other to resume their conjugal relations, and, if refused, to 
 
 1 Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, 47. And see Holston v. Holston, 23 
 Ala. 777. 
 
 ' 654 
 
CHAP. XLIV.] DESERTION, § 784 a 
 
 enforce their resumption ; but such refusal cannot constitute 
 the offence intended by the statute under the name of ' deser- 
 tion without cause.' " ^ <^And in a Michigan case one of the 
 learned judges observed : " If there be a separation by consent, 
 that consent shows that the parties deem it no grievance to be 
 deprived of each other's society, and nothing but an uncondi- 
 tional and entire resumption of their early relations can restore 
 them to such a position as would make a new separation by 
 the departure of the wife, as in this case, a criminal deser- 
 tion." 2j> Now, in England, this sort of doctrine is not as mis- 
 cliievous as it would be in this country ; and it may even rest 
 on a reason there which could not be made available here. 
 There, after a separation is established, it may be put an end 
 to by a suit for the restitution of conjugal rights ; for not even 
 an agreement under articles for a separation will bar this 
 suit.^ But here, where this suit is unknown, the doctrine 
 would operate to render irrevocable a separation entered into, 
 as our American courts hold, contrary to the policy of the law, , 
 and to make valid what all our tribunals are constantly hold- 
 ing to be void ; since, as the reader perceives, after a separation 
 has taken place, desertion according to this doctrine becomes 
 impossible. The true view is, that, as laid down in substanceV 
 in an English case, desertion, where the parties are apart, com- J 
 mences with the intent in the mind of the accused person/ 
 permanently to abandon cohabitation with the other.* But iy 
 the parties have already separated by consent, or if the party 
 complaining had in the first instance deserted the other, then, 
 in order for the one to put the other in the wrong, there must 
 be something more than a mere change of purpose, there must 
 be an outward act ; such as an overture, made in good faith, 
 to which the other declines to respond. The act of desertion 
 is an ofifence against the marriage ; and, if one of the married 
 parties is separated from the other without . having committed 
 an offence, — as, if the other has himself deserted, or has agreed 
 to a separation, — it is impossible he should afterward be 
 made guilty of the offence, unless he is, at least, made aware of 
 
 1 Fitzgerald v. Fitzgerald, Law Rep. ' Ante, § 634 et seq. 
 1 P. & M. 694. * Gatehouse v. Gatehouse, Law Rep. 
 
 3 Cooper V. Cooper, 17 Mich. 206, 1 P. & M. 331. 
 210. 
 
 655 
 
§ 785 JUDICIAL DIVORCES. [BOOK VII. 
 
 a change of wish and purpose in the other party. Without 
 this, he cannot intend to desert. And what is thus stated as 
 the better view, is believed to be established doctrine.^ 
 
 § 785. Nature of the Intent to desert — Magnitude. — Per- 
 haps, if the intent were a tangible thing, which, like the stature 
 of the person, could be accurately measured to an inch, there 
 might arise some nice questions concerning the particular ex- 
 tent, in height or breadth, to which the intent must reach, in 
 order to constitute the fully developed intent to desert. Must 
 the deserting person mean, that, whatever prayers or entreaties 
 may proceed from the other, such persuasions shall never bring 
 back the feet which have departed ? According to the United 
 States Digest, one of the points decided in a Mississippi case 
 was, that no absence can amount to a desertion xmless accom- 
 panied by the animus non revertendi. But this point, if fairly em- 
 braced within the case, is certainly not very distinctly sustained 
 by it.^ It appears to have been held in an admiralty case, that, 
 to constitute desertion under the general maritime law, there 
 must be a quitting of the vessel with the intention of abandon- 
 ing her altogether, and not returning. A mere leaving of the 
 vessel without permission is not desertion.^ The view which 
 seems to the writer best sustained in principle and in the 
 philosophy of the human mind is the following : A purpose to 
 desert is one thing ; a mental resolution not to change this pur- 
 pose is another thing ; and a determination to seem to desert, 
 yet to return to the matrimonial cohabitation after this seeming 
 has done its work, is still a third thing. The first of these, and 
 this only, is meant when we speak of the intent to desert. If 
 one of the matrimonial partners should leave the other, saying 
 within himself, — " I do not like the squint of the eye which I 
 see when I sit down to my dinner, I have protested against it 
 and I do not believe it will ever be given up, therefore, by rea- 
 son of the squint and the squint remaining, I utterly separate 
 myself from the offending member," — this, it is submitted, 
 would be a case of desertion, notwithstanding the apparent 
 probability, that, should the squint cease, the intent to desert 
 would cease with it. Yet there might be cases in which there 
 
 1 Post, § 786. 3 The Rovena, Ware, 309. 
 
 2 Fulton V. Fulton, 36 Missis. 517. 
 
 656 
 
CHAP. XLIV.] DESERTION. § 786 
 
 would be great difficulty in distinguishing the intent to desert 
 from the intent which comes short of this. Perhaps tlie criterion 
 is to consider, whether the party charged with desertion con- 
 templated the renewal of the cohabitation after a temporary 
 separation should have served a temporary purpose, or whether 
 the intent was to make the separation permanent. 
 
 § 786. Revocation of Consent — How Besertion constituted 
 during Separation — How ended. — A consent to a separation is 
 a revocable act ; ^ and, if parties separate by consent, and one 
 of them afterward in good faith seeks a reconciliation, but the 
 other refuses to return ; ^ or, if they separate for cause, and the 
 cause is removed, but one of them declines to renew the cohab- 
 itation;^ or, if a wife having left her husband without cause 
 comes back to him, and he will not receive her ; * or, if the hus- 
 band after deserting his wife proposes to renew the cohabita- 
 tion, and she rejects his proposal, the full statutory period not 
 having elapsed ; ^ this is a desertion by the one refusing, from 
 the time of the refusal. But to entitle a person to a divorce 
 under such circumstances, the offer of return must be made in 
 good faith, it must be free from improper qualifications and 
 conditions, and it must be really intended to be carried out in 
 its spirit if accepted.^ And in all cases the legal desertion ends 
 with the intent to desert ; for instance, it ends when the erring 
 party undertakes to come back, and is prevented. If the wife 
 is restrained by her parents from rejoining her husband, the 
 court, on proper application, will remove the restraint.'' 
 
 1 Crow V. Crow, 23 Ala. 588. Fishli v. Fishli, 2 Litt. 337 ; Fulton v. 
 
 2 Butler V. Butler, 1 Parsons, 329 ; Fulton, 36 Missis. 517 ; 1 Fras. Dom. 
 Miller ti. Miller, Saxton, 380; Cunning- Rel. 686. 
 
 ham V. Irwin, 7 S. & R. 247. ' Friend v. Friend, supra. People 
 
 ' Hills V. Hills, 6 Law Reporter, 174. v. Mercein, 8 Paige, 47, 54. And see 
 
 < Clement v. Mattison, 3 Rich. 93; Rex v. Wiseman, 2 Smith, 617. All 
 
 Fellows 0. Fellows, 31 Maine, 342 ; whicli the court can do, upon a habeas 
 
 English V. English, 6 Grant, U. C. Ch. corpus in such a case, is to relieve the 
 
 580 ; Grove's Appeal, 1 Wright, Pa. wife from iiny alleged restraint, and let 
 
 443, 446. And see McDermott's Ap- her choose whether to rejoin lier hus- 
 
 peal, 8 Watts & S. 251, 256 ; McGahay band or not. In an English case it was 
 
 U.Williams, 12 Johns. 293; McCutchen observed by Lord Campbell: "This 
 
 V. McGahay, 11 Johns. 281 ; Hanberry lady is living with her son by her own 
 
 V. Hanberry, 29 Ala- 719. free consent, and is under no restraint 
 
 s Walker v. Laighton, 11 Fost. N. whatever. Whether her husband can 
 
 H, 111. or cannot compel her return [in a suit 
 
 <> Friend v. Friend, Wright, 639; for the restitution of conjugal rights, 
 
 VOL. I. 42 G57 
 
§ 788 JUDICIAL DIVORCES. [bOOK VII. 
 
 § 787. Immaterial which one departs. — Where the separation 
 and desertion commence together, the deserting party is not 
 necessarily the one who leaves the matrimonial habitation, but 
 he is the one in whose mind the intent to desert exists. Thus, 
 to drive away the wife from the house is to desert lier.^ And 
 where a husband sent iiis wife to her friends ; and then, without 
 ,any known cause, himself left the country ; there having been 
 no difficulty between them, only it was supposed he thought 
 her too old for him ; she was held to have been deserted by 
 him.^ So where it appeared that the parties had some slight 
 misunderstanding ; and the husband, having been absent from 
 home a day or two, returned, and told his wife to go, and see 
 her brother, sick at his residence a few miles distant, — she 
 went, found her brother well, not having been sick ; came back, 
 found her husband gone, — she was held also to have been de- 
 serted by her husband.^ Indeed, it would be difficult to draw 
 any distinction, except in the enormity of the offence, between 
 a husband's openly leaving his wife with the avowal of his 
 intent to desert her, and his removing her from him by strata- 
 gem or by violence.* 
 
 § 788. Change of Domioii. — The dwelling together of parties 
 in marriage implies, of necessity, either that they concur as to 
 the place of their abode, or that one of them determines where 
 it shall be. But as differences of opinion and wishes are liable 
 to arise between them, the law must intrust to one of the 
 parties the authority to fix the place, and change it from time 
 to time, when the concord of views which ought to subsist 
 between persons so closely allied fails to do this. And the 
 
 which suit is unknown in the United parent has the right to the custody of 
 
 States] is a question alieni foro. We the child, and if the infant is of tender 
 
 have no jurisdiction on that subject, years the court will order it to be de- 
 
 If this writ were to go, and the lady livered to its father. But a husband 
 
 were to be produced before us in court, has no such right at common law to 
 
 she would be at perfect liberty to return the custody of his wife." Ex parte 
 
 to her son as at present, if she so Sandilands, 21 Law J. n. s. Q. B. 342, 
 
 pleased, and we could make no order 343, 17 Jur. 317, 12 Eng. L. & Eq. 
 
 for her to live with her husband. If 463. See also In re Price, 2 Fost. & 
 
 she has no good cause for being absent F. 263. 
 
 from him he may have a decree in the l Morris v. Morris, 20 Ala. 168. 
 ecclesiastical court for her to return 2 gt. John o. St. .Tohn, Wriglit, 211. 
 and live with him. The case of an ' Gossan v. Gossan, Wright, 147. 
 infant, to which allusion has been made, < See 2 Dane Ab. 308. 
 is quite diflerent; because there the 
 
 668 
 
CHAP. XLtV.] DESERTION. § 789 
 
 doctrine is familiar, that tliis autliority is vested, by law, in the 
 husband.^ In a preceding section of this volume,^ and in dis- 
 cussions which will occur in our second volume, the author 
 has freely stated his objections to some of the English exposi- 
 tions of legal doctrine, which, taking their origin in times and 
 manners differing from our own, seem to place in the hands of 
 the husband too much arbitrary power to be fitly exercised in 
 modern days, under the light of a more advanced civilization. 
 But respecting the point of our present inquiry, reasons prevail 
 unlike those which govern in the other questions referred to. 
 Either the husband or the wife must decide, where there is 
 insufficient good fellowship between them to lead to an 
 agreement ; and nature, as well as law, points to the husband, 
 who is the stronger to protect, and to whose lot, more than 
 the wife's, properly fall the struggles of life, as the proper party. 
 The authority, in these and other like cases, must be either 
 with the husband or the wife, it cannot be in the hands of both. 
 And the concurrent judgment and instinct of mankind repre- 
 sent the husband under the similitude of the oak, and the wife 
 under that of the vine, clinging to its bark, and graceful and 
 lovely only while it clings. And if there were not diff'erences 
 between the mental and physical constitutions of men and 
 women, and if the differences were not such as they are, nature 
 could not recognize the existence of a law attracting sex to sex, 
 by force of which the peculiar and perpetual union of marriage 
 could subsist. 
 
 §789. Continued. — These observations are made, because, 
 of late, some decisions have found way into the books, appar- 
 ently overlooking and overruling what is thus stated to be 
 established doctrine. Especially a Vermont case, wherein the 
 opinion of the learned court was pronounced by its learned 
 chief justice, seems to cut deeply down into the foundation 
 itself of marriage as understood in our law. According to the 
 facts of this case, the parties were married, and dwelt together 
 for a time, in a particular place; then they removed into 
 another State ; then the husband came back to live in the for- 
 mer place; but the wife refused to accompany him back, 
 
 1 See 1 Bishop Mar. Women, § 45- 2 Ante, § 756. 
 
 50. 
 
 659 
 
§ 789 JUDICIAL DIVORCES. [BOOK VII. 
 
 refused also to join him after be had returned, because un- 
 willing, she said, " to live with him near his relatives ; " and 
 the court held, that these facts did not constitute a " wilful 
 desertion," within the statute, of him by her. Said Redfield, 
 C. J. : " While we recognize fully the right of the husband to 
 direct the affairs of his own house, and to determine the place 
 of the abode of the family, and that it is in general the duty of 
 the wife to submit to such determinations, it is still not an 
 entirely arbitrary power which the husband exercises in these 
 matters. He must exercise reason and discretion in regard to 
 them. If there is any ground to conjecture, that the husband 
 requires the wife to reside where her liealth or her comfort will 
 be jeoparded, or even where she seriously believes such results 
 will follow which will almost of necessity produce the effect, 
 and it is only upon that ground that she separates from him, 
 the court cannot regard her desertion as continued from mere 
 
 wilfulness And in the present case, as the wife alleges 
 
 the vicinity of the husband's relatives as a reason why she can- 
 not consent to come to Milton to live with him, and as every 
 one at all experienced in such matters knows, that it is not 
 uncommon for the female relatives of the husband to create, 
 either intentionally or accidentally, disquietude in the mind of 
 the wife, and thereby to destroy her comfort and health often, 
 and as there is no attempt here to show that this is a simulated 
 excuse, we must treat it as made in good faith ; and, if so, we 
 are not prepared to say that she is liable to be divorced for act- 
 ing upon it."i There is also a late Pennsylvania case, in 
 which the doctrine seems to find favor, though perhaps the 
 case does not absolutely establish it, that, if a wife refuses to 
 come with or follow her husband from a foreign country to 
 this, such refusal alone, unaccompanied by evidence showing 
 its unreasonableness, is not desertion by lier.- And something 
 like this has likewise been laid down in Wisconsin. ^ 
 
 1 Powell V. Powell, 29 Vt. 148, 150. will sometimes help a legal firgument 
 
 2 Bishop V. Bishop, (i Casey, 412. over a hard place. Thus it was said, 
 is noticeable how a little rhetoric in this case : " The woman had for 
 
 It is 
 
 3 Gleason v. Gleason, 4 Wis. 64; matter. Walker v. Laighton, 11 Fost. 
 
 Hardenbergh o. Hardenbergh, 14 Cal. N. H. Ill ; Molony v. Molony, 2 Add. 
 
 654. See, as further illustrating this 249, 2 Eng. Ec. 291. 
 660 
 
CHAP. XLIT.] DESERTION. § 790 
 
 § 790. Continiied. — The general doctrine is plain, and the 
 cases before referred to do not conflict with it, that, if a hus- 
 band lawfully and properly undertakes to change the matrimo- 
 nial residence, and the wife refuses, having no legal excuse, to 
 proceed with him to the new locality, she thereby deserts him.^ 
 Doubtless if her health would not permit the removal, she 
 would be justified in refusing ; ^ because the very removing of 
 her, to the injury of her iiealth, would be legal cruelty. But 
 the true reason of the law of marriage aclcnowledges no condi- 
 tion of living separate, without necessity and without consent, 
 unless the law also gives the right of divorce when the living 
 thus separate occurs.^ For example, if the woman mentioned 
 in the Vermont case sliould set up the fact of her husband'9 
 residing " near his relatives," as ground on which to ask for a 
 divorce from him, there could be found no tribunal, however 
 unfettered by statutory inhibition and lax in its notions of 
 marriage, disposed to grant her prayer. And if this rule is 
 not to prevail, but if in each case the judge is to extract from 
 his own breast, or from among the tea-table fumes which arise 
 where congregated beauty sips, the fluctuating rule for the 
 case, in deciding whether the excuse of a deserting party is a 
 sufficient justification of the desertion, the law may be said to 
 sit very loosely upon our tribunals. This matter of excuse, 
 
 years followed the fortunes of her lius- He begged of his wife to go with him, 
 band, — faithful in every thing, as the but she refused ; he entreated her to 
 testimony shows, as well as his anxiety follow on, but she would not. She 
 to have her accompany, him to this loved his earnings, and was willing to 
 country evinces, if he were sincere in endure his presence for the sake of re- 
 it. At this point, however, and in the ceiving them in England ; but she 
 face of this great trial she fails ! Tlie loved other English people, perhaps 
 leaving home and country, the dangers other men of England, better than she 
 of a long ocean-voyage, the privations loved her husband ; so she resolved to 
 of a stranger in a strange land, may forsake him and cleave to them. See 
 have overmastered her strong desire further, as to the Pennsylvania law, 
 to follow his footsteps further, and de- post, § 799 ; Cutler v. Cutler, 2 Brews, 
 termined her to cling to her native 511 ; Angier v. Angler, 7 Philad. 305. 
 country." p. 415. Now, let us change ' Walker v. Laighton, 11 Post. N. 
 the strain of rhetoric, and see how the H. Ill ; Hair v. Hair, 10 Rich. Eq. 163. 
 argument looks : The man had toiled - See, as not however deciding the 
 hard and long to support the wife whom point, Molony v. Molony, 2 Add. 249, 2 
 he loved. He found, at last, that the Eng. Ec. 291. And see Keech v. Keech, 
 only way to do this was to emigrate to Law Eep. 1 P. & M. 641. 
 the new world, and there enter the door 3 gee post, § 796 ; ante, § 569-571. 
 to happiness, prosperityj and fortune ! 
 
 661 
 
§ 791 JUDICIAL DIVORCES. [BOOK VII. 
 
 however, comes up for consideration further on.^ It may be 
 observed, that, on the other hand, if the wife undertalces to 
 change the matrimonial domicil, and the husband refuses to fol- 
 low her, this is not a desertion of her by him.^ 
 
 § 791. Innocent Party leaving for Cause. — Suppose the cessa- 
 tion of the matrimonial dwelling together to be occasioned by 
 the ill conduct — the sufficient ill conduct, according to the 
 true legal standard — of one of the parties, can the party who 
 is not in fault rely upon this as constituting a desertion by the 
 other ? Decisions in. Connecticut,^ North Carolina,* and per- 
 haps some other States maintain, that, if a husband so abuses 
 his wife as to render her living with him personally unsafe for 
 her, on which account she leaves him, she can maintain against 
 him her divorce suit, relying on these facts as amounting to 
 desertion by him.* And it was observed by Bartol, J., in a 
 Maryland case, that, " if a man fails to supply his wife with 
 such necessaries and comforts of life as are within his reach, 
 and by cruelty compels her to quit him, and seek shelter and 
 protection elsewhere, we should have no hesitation in saying, 
 it would be as much an abandonment of her by him as if he 
 had deserted her and gone away himself." ^ In like manner 
 the English courts hold, that, if a wife quits her husband's 
 house under probable cause to apprehend personal violence 
 from him, or by reason of his bringing a common woman to 
 reside in it, this, in an action for necessaries, is equivalent to 
 his turning her out of doors ; '' in other words, it is desertion 
 by him. Indeed, as matter of evidence, as well as law, such 
 conduct seems, upon principle, clearly to show his intent to 
 desert, on the familiar rule,^ that a man is presumed to intend 
 
 1 Post, § 795 et seq. see Blowers u. Sturtevant, 4 Denio, 
 
 2 Frost V. Frost, 17 N. H. 251. 46. 
 
 3 2 Dane Ab. 308 ; Reeve Dom. Eel. 8 i Greenl. Ev. § 18, 34 ; 1 Bishop 
 207. Crim. Proced. 2d ed. § 1060. And see 
 
 « Wood V. Wood, 5 Ire. 674. Brown v. Commonwealth, 2 Leigh, 
 
 5 See also Almond v. Almond, 4 769. On an indictment for shooting 
 
 Rand, 662 ; Camp i>. Camp, 18 Texas, with intent to murder, Patteson, J., in 
 
 528. summing up to the jury, observed : " If 
 
 f> Levering v. Levering, 16 Md. 213, it be necessary that the jury should be 
 
 219. satisfied of the intent, I have no doubt 
 
 1 Houliston V. Smyth, 2 Car. & P. that the circumstance, that it would 
 
 22, 3 Bing. 127, 10 J. B. Moore, 482 ; have been a case of murder if death 
 
 Hodges V. Hodges, 1 Esp. 441. And had ensued, would be, of itself, a good 
 662 
 
CHAP. XLIV.] DESERTION. § 792 
 
 the natural and probable consequences of his acts. And there 
 can be no distinction made between his intending to oblige her 
 to leave him, and intending himself to leave her. If, on the 
 other hand, it sliould be affirmatively shown that a husband 
 practising cruelty on his wife did not mean thereby to drive 
 her from him, and really desired to have her remain, then the 
 induction of the intent to desert would be repelled, and this 
 conduct of liis would not amount to a desertion of her. 
 
 § 792. Continued. — Still the doctrine of the last section, sup- 
 posing it to be sound in law, which undoubtedly it is, does not 
 go to the full extent of an affirmative answer to the interroga- 
 tory with which the section opens. And unless there is ground 
 to hold, eitiier as matter of fact or of law, that the ill conduct 
 was connected with a desire to be rid of the ill-treated party, 
 even though it justifies such party in leaving, the case can 
 hardly, in reason, be deemed one of desertion. This proposi- 
 tion seems to find an illustration in a case which arose in New 
 Jersey, under a statute whereby wilful, continued, and obstinate 
 desertion for five years was made a ground of divorce. The 
 husband was lazy and would not work, and the wife for a long 
 time supported liim and the rest of the family by lier own exer- 
 tions. At length, still receiving no help from him, she removed 
 to another place, and there took board and continued to reside 
 during the requisite number of years, when she brought her 
 suit for divorce. Her prayer was disallowed, the Cliancellor 
 observing : "A wife cannot convert a husband's not contributing 
 to the suppQrt of a family into a desertion on his part, by re- 
 moving to another place and taking board and refusing' to 
 receive him there. The case seems to be nothing more nor 
 less than an application by the wife for a divorce on the ground 
 that the husband is idle and contributes nothing to her support 
 or that of tlie children, and that she is obliged to support her- 
 self and them, and is unwilling that her earnings sliould support 
 him." ^ In some later New Jersey cases this question is furtlier 
 considered ; and it is held, that, if a wife justifiably leaves her 
 husband on account of his cruelty, this is not a desertion by 
 
 ground from which the jury might infer his own acts." Reg. v. Jones, 9 Car. & 
 the intent ; as every one must be taken P. 258, 260. 
 
 to intend the necessary consequences of i Lewis v. Lewis, 2 Halst. 22, 26. 
 
 663 
 
§ 793 JUDICIAL DITOSCES. [BOOE TII. 
 
 her; but, if he practised the cruelty /or the purpose of driving 
 her away, it is a desertion of her by him.' Again, it was laid 
 down in another case, that, if a husband drives his wife from 
 his house, or inflicts on her such personal violence as to indi- 
 cate an intention to drive her away, and she goes, he thereby 
 deserts her.^ Moreover he deserts her, if, while she is discharg- 
 ing her duties as wife, he maliciously refuses to permit her to 
 share with him such means of livelihood as he has, and tlius 
 drives her from home. But, observed the learned chancellor, 
 Zabriskie, speaking to the actual point in judgment, " By mar- 
 riage, a wife agrees to share the fortunes of her husband, in 
 poverty and sickness, as well as in affluence and healtli. She 
 may be obliged to aid in her own support and be bound to adhere 
 to him. And she is not, because he is poor and her lot uncom- 
 fortable, entitled to leave him and betake herself to the luxuries 
 of the liome of her father. Much less can this convert her 
 unwarranted leaving her husband into a desertion by him." ^ 
 
 § 793. Continued. — In Massachusetts it was laid down, 
 under a statute now superseded, that, if a husband so abuses 
 his wife as to furnish her justifiable cause to leave him, and 
 she for this cause does leave him, and does neither return nor 
 offer to return, while he wholly neglects to provide maintenance 
 for her, and does not seek to live with her ; this does not con- 
 stitute a desertion of her by him. The case was one of severe 
 cruelty, coupled with utter neglect by the husband to provide 
 for the wife ; which two delinquencies were, by tlie statutes of 
 Massachusetts,* severally causes of divorce from bed and board ; 
 and it was agreed, that, for either one of these causes, at her 
 election, she might have maintained her suit, even at an earlier 
 period, for the limited divorce. But tlie majority of the court 
 held, that she could not likewise elect ^ to consider his conduct 
 as amounting to desertion ; and, at the end of tlie statutory 
 period from the time of the separation, bring a suit on this 
 
 1 Marker v. Marker, 3 Stock. 256. pursue, is so well established in both 
 
 2 To the like effect is Starkey v. civil and criminal jurisprudence as to 
 Starkey, 6 C. E. Green, 135. leave it hardly possible that the consid- 
 
 3 Palmer v. Palmer, 7 C. E. Green, cration mentioned in the report, of the 
 88, 90. plaintiff liaving her choice of other 
 
 4 R. S. 0. 76, § 6. remedies, could have much weighed in 
 
 5 The doctrine of a party's right to the minds of the judges, 
 elect which of several remedies he will 
 
 664 
 
CHAP. XLIV.] DESERTION. § 794 
 
 ground for a divorce from the bond of matrimony. Mr. Justice 
 Putnam, dissenting, contended, that tlie case was the same as 
 if the liusband had turned his wife out of doors ; that, there 
 being a separation which was not compelled by any third per- 
 son, it must have been either by mutual consent or a desertion; 
 that it was not by mutual consent ; that the wife did not desert 
 the husband, the separation being without her fault ; and, there- 
 fore, that he must be held to have deserted her.i " We con- 
 fess," says a reviewer, " it seems to us extremely difficult to 
 resist this conclusion." ^ 
 
 § 794. Continued. — We may observe of this Massachusetts 
 case, as it stands on the judgment of the majority, that the 
 court seemed not to have its attention directed to the question 
 whether, in point of evidence, the husband should be presumed 
 to have intended to bring about the separation which his ill 
 conduct made necessary for the safety of the wife. And in this 
 view, plainly the result reached by the majority of the court is 
 a departure from correct principle. Plainly, also, as a question 
 of a somewhat different nature, the result of this case should 
 have been as indicated by the dissenting judge ; for, if a hus- 
 band may drive away a wife by his cruelty, without being 
 chargeable with deserting her, then the statute against deser- 
 tion can operate only for the protection of the strong, not of the 
 weak. 2 At the same time, the intent to desert must, as matter 
 of real or assumed fact, exist in order to constitute legal deser- 
 tion. It appears to the writer, that, when a question of this 
 sort is tried by a jury, the case may be properly disposed of as 
 follows. The judge should tell the jury, that, to constitute the 
 desertion charged, the defendant must have intended to bring 
 about the separation ; but, in matter of evidence, if it appears 
 that the husband voluntarily did what compelled the wife to 
 leave him, they will be justified in inferring the intent from 
 the conduct, because men usually mean to produce those re- 
 sults which naturally and necessarily flow from their actions. 
 
 1 Pidge V. Pidge, 3 Met. 257. Some- '^ 7 Boston Law Reporter, 19. 
 thing like tliis was likewise held in a ^ xhe legislature has since remedied 
 
 Maryland case. Lynch v. Lynch, 33 this error of construction, as see ante, 
 
 Md. 328. As to Massachusetts, see § 773, note. And see, as lending some 
 
 also Fera a. Pera, 98 Mass. 155; Lea countenance to the doctrine of the text, 
 
 V. Lea, 99 Mass 493. Ward v. Ward, 1 Swab. & T. 185. 
 
 665 
 
§ 795 JUDICIAL DIVORCES. [BOOK VII. 
 
 Still the jury are to judge, whether or not, upon all the facts 
 appearing in evidence, it was so in this particular instance. 
 
 § 794 a. Driving 'Wife away. — And thus we come to a common 
 case about which there is no dispute ; namely, that, if a hus- 
 band, with or without bringing a false charge against his wife, 
 drives her away from the matrimonial dwelling, he thereby 
 deserts her.^ 
 
 III. The Justification. 
 
 § 795. General View. — Though a sufficient abandonment 
 should be shoym prima facie, still the case might be met by a 
 resort to any of the principles to be hereafter discussed under 
 , the heads of Connivance, Collusion, Condonation, and Recrim- 
 ination .^ We also saw, under the head of Cruelty, that there 
 is in law a defence to a charge of this nature, hardly coming 
 under any one of the above heads ; based on the principle that 
 a man cannot complain when visited with the natural and 
 probable consequences of his own act. If the cruelty under 
 which a wife suffers, comes to her as the natural rebound of 
 her own ill conduct, she cannot have redress in a court of jus- 
 tice ; but her remedy is to mend her own manners.^ So, in 
 respect to desertion, Dewey, J., in a Massachusetts case, ob- 
 served : " It might well be urged, and the appeal would meet 
 a hearty response in every breast, that the husband who, by his 
 brutal violence, or by a total, wilful neglect to cherish and sus- 
 tain his wife, in accordance with his marriage vows, should 
 compel her to abandon his roof and seek shelter abroad, either 
 by way of protection of her person from violence, or for the 
 purpose of obtaining the necessary comforts of life, should be 
 estopped from setting up, in a court of justice, such withdraw- 
 ing of the wife as a wilful desertion by her. To a husband 
 seeking a divorce under such circumstances, it might well be 
 said, your barbarity, your inhumanity, or your gross neglect (as 
 the case might be) was the occasion of the separation of which 
 you complain ; your wife was only an involuntary actor in the 
 scene, and you must be content to abide the consequences re- 
 
 1 Kinsey v. Kinsey, 87 Ala. 393 ; 2 Vol. II. § 4-102. 
 
 Slirock V. Shrook, 4 Bush, 682 ; Grove's 3 Ante, § 764-768. 
 
 Appeal, 1 Wright, Pa. 448 ; Harding v. 
 Harding, 22 Md. 337. 
 
 666 
 
CHAP. XLIV.] DESERTION. § 796 
 
 suiting from your own misconduct." ^ Yet to what extent the 
 very just principle thus stated is applicable to the suit for deser- 
 tion is not precisely clear. Plainly, if one of the married par- 
 ties leaves the other for a justifiable cause, this suit cannot be 
 maintained against him ; but the question is, — Wiiat is a jus- 
 tifiable cause ? And, again, the doctrine may be, — for here is 
 a question, — that, though the party deserting is not properly 
 justifiable, yet the other may still be debarred from complain- 
 ing, by reason of his own evil conduct. Upon these questions 
 it is difficult to lay down any propositions with entire confi- 
 dence that they can be sustained by the authorities, whether 
 they are sustainable in just legal argument or not. This matter 
 has been mentioned in two several places before in this volume ;^ 
 let us now further see what are some of the views which have 
 been judicially entertained on this subject. 
 
 § 796. How in Principle, — But before travelling through 
 the authorities, let us look again at the question as one of prin- 
 ciple. The general policy of the law is to keep the parties as 
 much as possible together. Though the suit for the restitution 
 of conjugal rights has not been adopted in our States, yet the 
 divorce for desertion more than occupies its place, as- express- 
 ing the general truth, that marriage and matrimonial cohabita- 
 tion should dwell in conjunction, and not apart. And we have 
 seen, that in still other forms also has the law given expression 
 to the same truth.^ Indeed, in ever}' view, when two persons 
 have entered into marriage, neither one of them should be per- 
 mitted to end practically the relation, any more than to end it 
 theoretically ; for the theoretical relation, by which is meant 
 the legal relation from which matrimonial cohabitation does 
 not proceed, is not a thing to be favored either in law or in 
 morals. That which gives a legitimate offspring to the country, 
 and feeds the future to become strong in human population, 
 wise in intelligence, beauteous in virtue, is not the theoret- 
 ical marriage, which, so far from blessing the country, pre- 
 vents actual marriage ; but it is the actual abiding together of 
 those who enter into wedlock. In marriage, also, each party 
 
 1 Pidge t-. Pidge, 3 Met. 257, 261 ; McCrooldin, 2 B. Monr. 370 ; Watkln- 
 s. p. Smith V. Smith, 12 N. H. 80; Mil- son v. Watkinson, 12 B. Monr. 210. 
 ler V. Miller, Saxton, 386 ; Butler v. ^ Ante, § 569-571, 790. 
 Butler, i Litt. 201, 206 ; McCrocklin v. » Ante, § 635. 
 
 667 
 
§ 797 JUDICIAL DIVORCES. [BOOK Til. 
 
 undertakes to overlook moral wrongs and infirmities in the 
 other ; and to continue the cohabitation, notwithstanding their 
 existence. Suppose, then, the plaintiff in a divorce suit for 
 desertion is shown to have some obliquities, how is the court 
 to determine whether they are such as should legally justify 
 the defendant in quitting the cohabitation, except as the court 
 refers the question to the law, and inquires whether the law 
 has made them ground for- dissolving or suspending the marital 
 relation ? If each individual judge takes it into his own hand 
 to determine that such or such a thing will justify a desertion, 
 the thing not being known in the law as foundation for sus- 
 pending or dissolving the marriage, then does the judge con- 
 vert every actual marriage, in which this thing is found, into 
 what we have called a theoretical one. He assumes to his 
 office what is more, and what is worse, than fully to dissolve 
 the marriage because of the existence of this thing. 
 
 § 797. Neglect of Means to gain the AfEections — Fear of hav- 
 ing Children — Commission of Crime. — Proceeding now to look 
 at what has been decided, let us call the attention of the reader 
 to the cases already mentioned,^ in which the courts permitted 
 some light excuses to take off the effect, as desertion, of the 
 wife's refusal to follow the husband when he made a change of 
 his domicil. In Ohio, to quote tlie language of the report, " It 
 appeared in proof, that, in 1827, the complainant, then about 
 years old, was married to the defendant, then about four- 
 teen years old. She was unwilling to marry him, and said she 
 could never love him ; but, by his procurement, she was coerced 
 into the marriage. They lived together a few months, when 
 she left him, went to her friends in Massachusetts, and refused 
 to live with him longer. He treated her well while they were 
 together, and once made an effort to induce her to retui-n ; she 
 told him she had no affection for him, and never could live with 
 him. He was cautioned, before the marriage, that he never 
 would be happy in a marriage so procured, but persisted. By 
 the Court : This man seems to have used undue and improper 
 means to compel a child to marry him, against her own will 
 and the advice of his friends ; and now, while reaping the nat- 
 ural reward of his efforts, he has become dissatisfied and de- 
 
 1 Ante, § 789. 
 
 668 
 
CHAP. XLIV.] DESERTION. § 799 
 
 sires a divorce. Without some more and decided attempts to 
 gain the affections of his wife, and at reconciliation, we con- 
 sider it our duty to deny him a divorce. Let the bill be dis- 
 missed." 1 In another case, however, the same court held, 
 that the fear of having too many children will not so justify a 
 wife in leaving her husband as to prevent him from obtaining 
 a divorce for the desertion." ^ And the North Carolina court 
 decided, that the husband's commission of a crime does not 
 authorize the wife, to leave him ; since she took him " for better 
 or for worse." ^ 
 
 § 798. Charge of Infidelity — Restitution of Conjugal Rights. — 
 A late Alabama case holds, that a wife does not " voluntarily 
 leave her husband," within the meaning of the statute, when 
 she goes away because of his bringing against her an unfounded 
 charge of infidelity to his bed. Said the court: "We are far 
 from saying, that this accusation is a ground upon which the 
 defendant could have obtained a divorce from her husband. 
 However groundless and cruel, it was not sufficient for that 
 purpose. But our opinion from the evidence is, that it was 
 the cause of her leaving and remaining from him unwillingly ; 
 hence, that she did not leave or remain away voluntarily, but 
 under an unhappy necessity, which ho created and continued." 
 The court also considered, that the English decisions as to the 
 defences in a suit for the restitution of conjugal rights do not 
 apply to the question we are here discussing ; because, in the 
 English suit, the husband who is defendant is admonished to 
 treat with conjugal kindness the wife whom he is directed to 
 receive back.^ 
 
 § 799. Cause justifying Divorce. — But in Pennsylvania is 
 established the plainer rule, that the " reasonable cause" which, 
 
 1 Bigelow V. Bigelow, Wright, 416. v. Mereein, 8 Paige, 47, 68. In New 
 
 2 Leavitt v. Leavitt, "Wright, 719. Jersey, something less than would fur- 
 And see Du Terreaux v. Du Terreaux, nisli ground of divorce seems to be 
 1 Swab. & T. 555. deemed adequate in excuse for a deser- 
 
 3 Foy V. Foy, 13 Ire. 90. tion, Laing v. Laing, 6 C. E. Green, 
 * Hardin v. Hardin, 17 Ala. 250. 248. But, contra, Moores v. Moores, 1 
 
 See Kinsey v. Kinsey, 37 Ala 393. C. E. Green, 275. At all events, a wife 
 
 And see Gray v. Gray, 15 Ala. 779. is not deemed to be justified in leaving 
 
 A similar doctrine seems to have been her husband because his matrimonial 
 
 laid down in Louisiana. Naulet v. Du- intercourse with her is frequent, if he 
 
 bois, 6 La. An. 403. See also Gillinwa- employs no compulsion and she has no 
 
 ters V. Gillinwaters, 28 Misso. 60 ; People physical infirmity. 
 
 669 
 
§ 800 JUDICIAL DIVORCES. [BOOK VII. 
 
 within the divorce statutes of the State, will justify one of the 
 married parties in leaving the other, must be such conduct as 
 could be made the foundation of a judicial \)roceeding for di- 
 vorce. The court considered, that a contrary construction 
 would violate all tpue policy, render the law chaotic and uncer- 
 tain, favor separations, and substitute the particular opinions 
 of the judge happening to preside at the trial, in the place of 
 well-defined legal principles.^ It was observed in a later case 
 in which the same doctrine was enforced : " We have adopted 
 the same principle which rules in the English ecclesiastical 
 courts. In that country, when cohabitation is suspended by 
 either the hiisband or wife, of his or her own motion, without a 
 sufficient reason, a suit for a restitution of conjugal rights may 
 be maintained by the injured party. Nothing amounts to a bar 
 against sucli a suit except such facts as would entitle the de- 
 fendant to a divorce. Nothing short of such facts will justify 
 a wilful separation or a continuance of it. The interests of 
 society, the happiness of the parties, and the welfare of families, 
 demand such a rule. Separation is not to be tolerated for light 
 causes, and all causes are light which the law does not recog- 
 nize as ground for the dissolution of the marriage bond."^ 
 Likewise it has been held by the highest court of Kentucky, 
 that no ill conduct in the plaintiff, short of what would have 
 constituted ground for divorce or for alimony, will so justify 
 the defendant's desertion as to bar the suit.^ 
 
 § 800. Mutual Fault. — In New Hampshire it was observed, 
 that there are " few cases " only, in which the desertion will 
 be justified. But the court said : " We have already decided, 
 tiiat, where a husband horsewhipped his wife two or three 
 times, her leaving him furnished no good cause for a divorce, 
 notwithstanding her conduct could not be justified."* A 
 reference to the reports shows the same wife to have been 
 refused her divorce on the ground of this cruelty ; because, 
 although the husband was not justifiable, yet her conduct had 
 been so outrageous as to bar her remedy .^ So, in a Suit for 
 
 1 Butler V. Butler, 1 Parsons, 329 ; 2 Grove's Appeal, 1 Wright, Pa. 443, 
 
 Eshback v. Eshback, 11 Harris, Pa. 447, opinion by Strong, J. 
 343, 345 ; Cattison v. Cattison, 10 Har- ' Logan v. Logan, 2 B. Monr. 142. 
 ris, Pa. 275. And see Vanleer v. Van- < Kimball v. Kimball, 13 N. H. 222. 
 leer, 1 Harris, Pa. 211. s Poor v. Poor, 8 N. H. 307. 
 
 670 
 
CHAP. XLIV.] DESERTION. § 802 
 
 necessaries furnished the wife, her adultery is a bar, although 
 the husband has committed adultery also.^ Yet, if he has 
 condoned her adultery, he cannot defend the suit for necessa- 
 ries by setting up this adultery .^ 
 
 § 801. Separation during Pendency of Divorce Suit. — There 
 are circumstances in which the law authorizes a party to the 
 marriage to remain away from the other for some special or 
 temporary purpose, though no divorce follows. A case like 
 this, however, is regulated by the law, not by the private notion 
 of a particular judge. Thus, in England, it is not malicious 
 desertion for the husband to forsake cohabitation with his wife 
 during the progress of his suit to obtain a decree of nullity of 
 the marriage, notwithstanding the judgment in the suit should 
 be against him. " During the pendency of that suit," says 
 Sir John Nicholl, " cohabitation was not only not incumbent 
 by law, on the parties, or on either of them ; it would even 
 have been legally censurable, at least in the husband." ^ And 
 the same principle applies to divorce suits.* Therefore a with- 
 drawal from the cohabitation, under such circumstances, is 
 not deemed desertion.^ " 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 tlie 28th of October, inasmuch 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." ® 
 
 § 802. Continued. — The doctrine of the last section, though 
 just as a general one, should probably have some limit in its 
 application. Thus, if one of the married parties should leave 
 the. matrimonial cohabitation for some insufficient reason, and, 
 having so left, should try the experiment of suing the other 
 
 ' GoTi»r V. Hancock, 6 T. R. 603 ; * Sykes v. Halstead, 1 Sandf. 483 ; 
 
 Eex V. Flintan, 1 B. & Ad. 227. See Edwards v. Green, 9 La. An. 317. 
 ante, § 574, 575. '' Doyle v. Doyle, 26 Misso. 545 ; 
 
 2 Harris v. Morris, 4 Esp. 41. Simons v. Simons, 13 Texas, 468 ; 
 
 ' Sullivan v. Sullivan, 2 Add. Ec. Marsh v. Marsh, 1 McCarter, 315. 
 299, 2 Eng. Ec. 314 ; Clowes v. Clowes, « Edwards v. Green, 9 La. An, 317. 
 
 9 Jur. 356. 
 
 671 
 
§ 803 a JUDICIAL DIVOKCES. [book VII. 
 
 for a divorce, probably, not certainly, the courts might hold 
 the desertion to continue, notwithstanding the pendency of the 
 suit. The difSculty in the way of stating this proposition with 
 more confidence is, that, suppose the divorce suit to be some- 
 thing more than a mere intentional sham, its very pendency 
 did of itself justify in law the absence of the party pursuing ; 
 and, where the absence is legally justifiable, though accompa- 
 nied with tlio intent to desert, perhaps it may not constitute 
 technical desertion. The point, however, appears not to have 
 been adjudicated. The Missouri court, by Scott, J., stated the 
 doctrine as follows : " Under color of maintaining a suit for a 
 divorce, the husband would not be permitted to avoid the con- 
 sequence of an abandonment and neglect to provide for his 
 wife ; but, when a suit is prosecuted in good faitli for a divorce, 
 nothing would be more unreasonable than to hold a separation 
 from the wife during the pendency of such a suit a desertion, 
 subjecting him to a suit for alimony." ^ In Texas also, the 
 doctrine has been laid down in the same way.^ 
 
 § 803. Imprisonment. — In a Massachusetts case it was held, 
 that the desertion was sufficient, though during the greater 
 part of the statutory period the defendant husband had been 
 confined, under successive sentences, in the house of correction 
 for his crime. " We think," said the court, by Bigelow, J., 
 " it was wilful. Tliis is shown by the proof that it commenced 
 before the defendant was imprisoned, and that during the 
 intervals between his several commitments to the house of 
 correction he neitiier returned to the society of his wife nor 
 contributed any thing to her maintenance or support." ^ But 
 here, the reader perceives, there was a continuing intent to 
 desert, and the imprisonment did not prevent the renewing of 
 the cohabitation, which would not have taken place if there 
 had been no impi-isonment. On the other hand, where,, in 
 Michigan, a wife was for a year held for trial on a charge by 
 her husband of having attempted to take his life by poison, 
 her absence was adjudged not to be, in law, desertion.* 
 
 § 803 a. Another View — Insanity. — We shall see in the 
 
 1 Doyle c. Doyle, 26 Misso. 545, ' Hews v. Hews, 7 Gray, 279. 
 550. i Porritt v. Porritt, 18 Mich. 420. 
 
 'i Simons v. Simons, 13 Texas, 468. 
 
 672 
 
CHAP. XLIY.] DESERTION. § 804 
 
 next volume, that, as matter of evidence, a desertion once 
 shown is presumed to be continuing unless the contrary appears.^ 
 But there is an Iowa case which seems to carry this doctrine 
 somewhat further. A statute provided that a wife should be 
 entitled to a divorce from her husband " when he wilfully 
 deserts his wife and absents himself without a reasonable 
 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 absent himself for two years when she has given him 
 no reasonable cause for remaining away, then she shall be 
 entitled to a divorce." Therefore the majority of the court 
 held, that, if a man who is sane commits the original desertion, 
 but before the full statutory period has run he becomes insane, 
 and then the period elapses, his wife is entitled to a divorce.^ 
 
 § 804. English Doctrine in Restitution of Conjugal Rights. — 
 In suits for the restitution of conjugal rights, the general doc- 
 trine requires the defendant to return to cohabitation, unless 
 he shows in defence what will justify the court in decreeing a 
 separation in his favor, if such is his prayer. And Dr. Lush- 
 ington, in one case, said : " I know no authority which states, 
 that, whatever be the guilt of both parties, if the court does 
 not pronounce for a separation, they are not, according to the 
 law of this country, bound to live together ; and I think such 
 a principle would be dangerous to society and tlie public 
 morals." ^ But in a subsequent case this learned judge spoke 
 of the question as being unsettled, and of great importance 
 and difficulty. He observed, that, in former judgments, the 
 possibility of dismissing both parties is mentioned, yet tlae 
 cases permitting this must be rare.^ It seems to have been 
 
 1 Vol. n. § 672. Ec. 773, 784, 8 Eng. Ec. 329, 336. The 
 
 2 Douglass 0. Douglass, 31 Iowa, same doctrine was rather taken for 
 421 423. granted than decided in the Scotch 
 
 ' Anichini v. Anichlni, 2 Curt. Ec. case for adherence of Lang v. Lang, 13 
 
 210, 7 Eng. Ec. 85, 89. And see Oliver Scotch Sess. Cas. N. s. 1108. 
 
 V. Oliver, 1 Hag. Con. 361, 4 Eng. Ec. * Dysart v. Dysart, 1 Robertson, 106, 
 
 429 ; Barlee v. Barlee, 1 Add. Ec. 301, 143. And see Molony v. Molony, 2 
 
 305 ; Holmes v. Holmes, 2 Lee, 116, 6 Add. Ec. 249, 2 Eng. Ec. 291 ; Moore 
 
 Eng. Ec. 59 ; Westmeathw. Westmeath, v. Moore, 3 E. F. Moore, 84 ; Denniss 
 
 2 Hag. Ec. Supp. 1, 57, 4 Eng. Ec. 238, v. Denniss, cited 3 Hag. Ec. 348, 353, 
 
 264 ; D'Aguilar v. D'Aguilar, 1 Hag. 5 Eng. Ec. 135, 138 ; post, § 807. 
 
 VOL. I. 
 
 43 673 
 
§ 805 a JUDICIAL DIVORCES. [book VII. 
 
 intimated, that perhaps antenuptial incontinence in the wife 
 may justify a subsequent desertion by the husband.^ It appears 
 also, that a wife, acting on the defensive in a suit for the resti- 
 tution of conjugal rights, is not held to so strict proof of the 
 charges offered in bar, as she would be in an original suit for 
 divorce instituted by her on the same ground ; though she is 
 required satisfactorily to prove her allegations.^ 
 
 § 805. Continued. — But in a still later English case of this 
 sort it was decided, that reasonable suspicion of adultery in the 
 wife, where this offence is not actually shown to have existed, 
 and the keeping of forbidden company by her, are not a suffi- 
 cient answer, set up by the husband, to her suit against him 
 for the restitution of conjugal rights. The decision was put, 
 by the court, upon the broad ground taken by counsel, " that 
 nothing can be pleaded in bar to a suit for restitution, but 
 what would entitle the respondent to a judicial separation." 
 And this doctrine was shown, by a manuscript decision dating 
 back to 1727, as well as by later printed adjudications, to be 
 the settled English law.^ If, therefore, this rule of decision 
 was deemed sound in England, at a time when judicial separa- 
 tions were allowed only for adultery and cruelty, much more 
 should it be received as sound in this country, where the 
 causes of separation and divorce are somewhat more extended.* 
 
 § 805 a. Husband supporting 'Wife. — The duty of a husband 
 to support his wife is, though important, not so completely of 
 the essence of matrimony that its performance will take away 
 the effect of a desertion. A husband owes to her his society 
 and personal protection ; and if, after refusing to live with 
 her, he pays her an allowance, this will not, as we have seen,^ 
 serve as a defence to her suit for divofce on account of the 
 desertion.^ On the other hand, if the wife deserts the hus- 
 
 1 Perrin v. Perrin, 1 Add. Eo. 1, 2 * And see Grove's Appeal, 1 Wright, 
 Eng. Ec. 11 ; Reeves v. Reeves, 2 Pa. 443, 447. 
 
 PhiUim. 125, 1 Eng. Ec. 208, 209. 5 Ante, § 778 a. 
 
 2 Bramwell v. Bramwell, 3 Hag. Ec. ^ Macdonald v. Maedonald, 4 Swab. 
 618, 619, 5 Eng. Ec. 232, 233. And & T. 242 ; Yeatman v. Yeatman, Law 
 see Vol. II. § 89 ; Rogers Ec. Law, 2d Rep. 1 P. & M. 489. See Nott v. Nott, 
 ed. 897 ; 50 Lond. Law Mag. 275. Law Rep. 1 P. & M. 251. 
 
 3 Burroughs v. Burroughs, 2 Swab. 
 & T. 303. 
 
 674 
 
CHAP. XLIV.] DESERTION. § 805 b 
 
 band, then he makes her au allowance, the desertion still runs 
 on in matter of law, the same as before.^ 
 
 § 805 b. Articles of Separation. — The effect of entering into 
 articles of separation has been considered in some English 
 cases ; and it is held, that, if such articles are drawn up and 
 fully executed, they amount to a consent to the living apart, 
 and, if the writer correctly apprehends the doctrine, estop the 
 party to allege a desertion contrary to the terms of the 
 writing.^ And, where a husband deserted his wife, but, before 
 the statutory period had elapsed, a deed of separation was 
 entered into between the husband, wife, and a trustee, and 
 fully executed, yet he never paid any part of the "allowance, it 
 was held that she had bargained away her right, the desertion 
 ceasing in law with the execution of the deed. It is to be 
 observed that the deed contained, not merely a stipulation for 
 her support, but in terms an undertaking on her part to live 
 separate from the husband. " It is now suggested," said Lord 
 Penzance, " that the court should inquire into what was 
 intended by her when she executed the deed. It is clear that 
 such evidence cannot be admitted. The question, then, is, 
 whether a woman who voluntarily enters into an agreement 
 that her husband shall live apart from her, can be said to have 
 been deserted witliout just cause. I repeat the opinion I 
 formed in Crabb v. Crabb,^ that she cannot. There is a mate- 
 rial diflFerence between such a case as this and Xott v. Xott.* 
 The ratio decidendi in Xott v. Nott was, that the wife never 
 agreed to live separate and apart from the husband. The 
 making of a deed was contemplated, and some of the parties 
 executed it, but the party whose execution was to make it an 
 efficient and binding agreement was the trustee who covenanted 
 for the wife, and he never signed it, so that the deed was never 
 completed. In this case the court is reluctantly obliged to 
 
 1 Magrath v. Magratli, 103 Mass. 251. In this case it appeared, that, 
 577. See Goldbeck v. Goldbeck, 3 C. after the husband had deserted the 
 E. Green, 42. wife, she made him a weekly allow- 
 
 2 Buckmaster v. Buckmaster, Law ance to prevent his starving, but did 
 Rep. 1 P. & il. 713 ; Crabb v. Crabb, not consent to his staying away. The 
 Law Bep. 1 P. & M. 601 ; Anquez v. two signed a separation deed, but it 
 Anquez, Law Rep. 1 P. & M. 176. was never fuUy executed. It was held 
 
 3 Crabb v. Crabb, supra. that the desertion was established. 
 * Nott V. Kott, Law Rep. 1 P. & M. 
 
 675 
 
§ 805 I JUDICIAL DIVORCES. [BOOK VII. 
 
 hold, that the wife has bargained away her right to relief on 
 the ground of desertion, and that the charge of desertion 
 without cause for two years is not established." ^ It has been 
 intimated, however, that if a husband who has determined to 
 abandon his wife, induces her by a mere fraudulent show of 
 an agreement which he intends never to fulfil, to consent to 
 a separation, this is not a consent which he can avail himself 
 of on a charge of desertion afterward brought by her.^ And 
 this doctrine stands well on the principle of the law, that 
 fraud vitiates every thing into which it enters.^ . So, if parties 
 living together enter into a deed of separation which is never 
 acted upon, and afterward one of them deserts the other, this 
 is no bar to a divorce for the desertion. " The court cannot," 
 it was observed, " contrary to the manifest fact, consider the 
 bare existence of this deed as a proof that these parties sepa- 
 rated by mutual consent."* In an earlier chapter of this 
 volume the reader will find a discussion of the question, 
 whether, if parties who are supposed to contemplate marriage 
 use words importing a present consent to matrimony, vbile in 
 fact they do not mean it, or words not coming up to this 
 import while in fact they do mean present marriage, the law 
 will judge of the effect according to what they mean or accord- 
 ing to what they say. And the result is, in substance, that the 
 real meaning will be regarded in spite of the words.^ To the 
 writer it seems plain that the same doctrine ought to be applied 
 here. We should remember, that, as already shown in these 
 pages,^ a mere agreement to live separate has, as such, no 
 effect in the law whatever. Therefore, whatever be the terms 
 employed in articles of separation, since the part in which the 
 husband and wife in form consent to live separate is a mere 
 nullity in the law, it cannot act as an estoppel, and the rules 
 which govern valid contracts can have no necessary applica- 
 tion to it. As mere prima facie evidence showing intent, such 
 matter is properly admissible; but the real intentions and 
 
 1 Parkinson v. Parkinson, Law Rep. « Cock v. Cock, 3 Swab. & T. 514 
 2 P. & M. 25, 26, 27. 6 Ante, § 233 et seq. 
 
 2 Crabb v. Crabb, supra. « Ante, § 631, 635-637. 
 
 3 Bishop Pirst Book, § 66-69, 124, 
 125. 
 
 676 
 
CHAP. XLIV.] DESERTION. § 80t> 
 
 motives of the parties ought to be open to inquiry notwith- 
 standing. ^ 
 
 § 806. Articles of Separation, continued — Separation for 
 Cause — Refusal to renew a Cohabitation. — As one illustration 
 showing the nullity of the agreement to live separate, articles 
 of separation are, as we have seen,^ no bar to a suit for the resti- 
 tution of conjugal rights, even though they contain a covenant 
 not to bring the suit.^ Thence it follows, that, if after the 
 execution of such articles, one of the parties applies to the 
 other in good faith for a renewal of the cohabitation, and is 
 refused, this refusal will amount to a desertion, sustaining the 
 suit for divorce.* And where a woman had left her husband 
 because of his extreme intemperance, but he afterward re- 
 formed, offered her a good home, and invited her to return, 
 which she declined to do. Judge Wilde held, that, assuming 
 she was justified in leaving him, her subsequent refusal to 
 return, on the cause being removed, was a desertion on her 
 part, for which he could maintain his suit. It could not be 
 the intent of the law to bind a man for ever to the consequences 
 of an early fault, curable in its nature, and cured in fact.^ So, 
 also, where a husband and his wife, Protestants, had both 
 joined the communion of the Church of Rome, and had both 
 taken vows of chastity, and a quasi sentence of separation bad 
 been pronounced between them by the authorities of the 
 church ; after which he became a priest, and she a nun ; it 
 was held, that the husband was not thereby barred of his suit 
 
 1 See post, § 810 ; Vol. II. § 25. it was held, that, if a party seeks a 
 
 2 Ante, § 634. divorce from bed and board, and there 
 ' Smith V. Smith, 2 Hag. Ec. Supp. are articles of separation which leave 
 
 44, note, 4 Eng. Ec. 258 ; Westraeath the parties substantially where the de- 
 
 V. Westmeath, 2 Hag. Ec. Supp. 1, 4 cree of the court would leave them, he 
 
 Eng. Ec. 238 ; Barlee v. Barlee, 1 Add. cannot obtain the useless relief. This 
 
 Ec. 301, 305 ; Nash v. Nash, 1 Hag. doctrine is without other authority, 
 
 Con. 140, 4 Eng. Ec. 357 ; Mortimer and it probably rests on no sufficient 
 
 V. Mortimer, 2 Hag. Con. 310, 318, 4 foundation of principle ; for no articles 
 
 Eng. Ec. 543, 547 ; ante, § 300, note, of separation can have the effect, even 
 
 And see Cartwright v. Cartwright, 19 substantially, of a decree of divorce 
 
 Eng. L. & Eq. 46. from bed and board. 
 
 * Miller o. MiUer, Saxton, 386. A 5 Hills v. Hills, 6 Law Reporter, 
 deed of separation seems to furnish no 174, a Massachusetts case. Drunken- 
 bar to a suit for alimony. lb. It is ness in this State is not a cause of di- 
 no bar to a suit for divorce. Rogers v. vorce. See ante, § 786. See also 
 Rogers, 4 Paige, 516. But in Brown Walker v. Laighton, 11 Eost. N. H. 
 V. Brown, 5 GiU, 249, 2 Md. Ch. 316, 111. 
 
 677 
 
§ 808 JUDICIAL DIVORCES. [BOOK VII. 
 
 for the restitution of conjugal rights.^ Doubtless, therefore, the 
 refusal of a party under like circumstances to renew the cohab- 
 itation, would in law be an act of desertion. Tlie ground upon 
 which all such cases proceed appears to be, that any separa- 
 tion, without legal sentence, for causes approved by law, is 
 contrary to sound policy ; and that, if a party has once con- 
 sented to it, he may change his wrongful consent, and do right 
 by revoking it at pleasure. 
 
 § 807. Both Parties separating for Cause — Mutual Guilt. — 
 The question may arise, whether, or not, suppose each of the 
 parties to have committed an offence — for instance, adultery 
 — authorizing, if there was no plea of recrimination, a divorce 
 at the suit of the other party ; and then suppose, that, both 
 being thus guilty, one of them desires to renew the matrimo- 
 nial cohabitation, and the other refuses, — is this a case of 
 desertion on the part of the refusing one ? In England, if, in 
 such a case, there were a suit for the restitution of conjugal 
 rights, the prayer of the complainant would be disallowed. 
 So, at least, it was held by the jvidge ordinary in a late case ; 
 though the canon law was admitted to be the other way.^ 
 And an earlier Irish case, not made public at the time of this 
 decision, maintains the doctrine of the canon law.^ This mat- 
 ter, however, will be further illumined when we treat of the 
 subject of recrimination. 
 
 § 808. La-^ and Evidence distinguished — Consent, &c. — We 
 have already sufficiently seen, that, where the party complain- 
 ing had consented to the desertion, the divorce on this ground 
 cannot be allowed.* And in an Alabama case it was observed 
 by Chilton, J. : " If a husband leave the wife without the 
 intention of returning, to entitle her to a divorce she must not, 
 by her conduct, have driven him from her society, and have 
 continuously denied him the locus penitentice, and the privilege 
 of returning ; for, in that event, we must intend the separation 
 was by her consent, in which case she is not entitled to a 
 
 1 Connelly v. Connelly, 16 Law Consistorial Court of Dublin, affirmed 
 Times E. 45, 7 Notes Cas. 444, 2 Rob- by tbe Court bf Delegates in Ireland 
 ertson, 201, 2 Eng. L. & Eq. 570. on appeal. 
 
 2 Hope u. Hope, 1 Swab. & T. 94. * Ante, § 783 ; Simpson v. Simpson, 
 And see ante, § 800, 804. 31 Misso. 24 ; Thompson v. Thompson, 
 
 3 Seaver v. Seaver, 2 Swab. & T. 1 Swab. & T. 231. 
 665. So held by -Dr. EadclifF, in the 
 
 678 
 
CHAP. XLIT.] DESERTION. § 810 
 
 divorce." 1 The matter which we have been considering 
 through most of the sections of the present sub-title is, not 
 what is the evidence of a consent to a desertion, but what, in 
 law, will justify the desertion. Ill-conduct in one of the par- 
 ties, falling short of what would authorize a divorce at the suit 
 of the other, may, as a matter of evidence, establish consent in 
 such party, — but questions of evidence are not for the present 
 chapter. 
 
 •IV. The Continuity of the Desertion. 
 
 § 809. Temporary Suspension of Desertion. — The statutes 
 which authorize the divorce from the bond of matrimony for 
 desertion require the desertion to have continued through a speci- 
 fied number of years in order to be sufficient. In like manner, 
 provision was made for naturalizing aliens who should have 
 resided in this country, to use the words of the statute, " for 
 the continued term of five years next preceding, &c., without 
 being, at any time during the said five years, out of the terri- 
 tory of the United States." And it was held, that, where the 
 alien had been, during the five years, some two or three min- 
 utes only in Upper Canada, without the intention of remain- 
 ing, he was still barred of his claim to naturalization.^ 
 
 § 810. Continued — Offer to return. — So, in the matrimo- 
 nial law, where a desertion is by any of the ways known to the 
 law put an end to, for however brief a period, the earlier and 
 later desertion cannot be yoked, and counted in years, 
 together.^ An offer to return, made in good faith during the 
 statutory period, will put an end to the desertion, and bar the 
 suit.* If the desertion has continued the number of years 
 required by the statute, the deserted party may then refuse to 
 renew the cohabitation ; and this refusal will not bar the 
 already existing right.^ But if the number of years required 
 
 1 Gray v. Gray, 15 Ala. 779, 784, * Friend v. Friend, Wright, 639; 
 785 ; s. p. Gillinwaters v. Gillinwaters, Gaillard v. Gaillard, 23 Missis. 152 ; 1 
 28 Misso. 60. ' . Fras. Dom. Rel. 686 ; Wallcer v. Laigh- 
 
 2 Ex parte Paul, 7 Hill, N. Y. 56. ton, 11 Fost. N. H. 111. 
 
 3 Ex parte Aldridge, 1 Swab. & T. 5 Cargill v. Cargill, 1 Swab. & T. 
 88 ; Gaillard v. Gaillard, 23 Missis. 152. 235 ; Basing v. Basing, 3 Swab. & T. 
 See McCraney v. McCraney, 6 Iowa, 516 ; Benkert v. Eenkert, 82 Cal. 467 ; 
 232 Fishli v. Fishli, 2 Litt. 337 ; Hesler v. 
 
 679 
 
§ 811 JUDICIAL DIVORCES. [BOOK Til. 
 
 has not elapsed, the refusal works the opposite result, and the 
 refusing party cannot afterward have a divorce for the deser- 
 tion.^ A question has been made, whether a voluntary sepa- 
 ration, entered into by articles, after the right of suit has 
 accrued, will not bar the remedy .^ But that is, perhaps in a 
 measure, considered in a previous section.^ 
 
 V. The Distinction between the Law and the Evidence. 
 
 § 811. General Views. — The cases have not hitherto fur- 
 nished us with matter appropriate to the present . sub-title. 
 Until they do, let the following suggestion suffice : It is a 
 question of law for the court, whether there must be any, and 
 what, separation of the persons of the parties from each other, 
 
 — what must be the intent of the deserting party, — what, 
 either of outward conduct, or of intent, in the other party, will 
 bar such party's right to take advantage of the desertion, — 
 how long the desertion must continue, and whether a particu- 
 lar fact, if admitted, has broken the continuity ; but it is for 
 the jury to decide, whether the personal absence of the parties 
 from each other has existed, — whether the required intent 
 existed, — whether the excusing acts and intentions existed, 
 
 — and so on, of the rest. There is no great room for legal 
 difficulty under this head. 
 
 Hesler, Wright, 210 ; 1 Fras. Dom. Rel. quite inoperatiye. A deserter might 
 
 686. " The statute," it was observed just repeat such a tender as often as a 
 
 by Lord Corehouse, in a Scotch case, new course of desertion was run, and 
 
 "gives the remedy for four years' the proceedings against him had 
 
 ' malicious and obstinate desertion.' reached their present stage, so that 
 
 That remedy was meant to be effect- the statute would be abortive." Mur- 
 
 ual. The statute provides, that, after ray v. McLauchlan, 1 Scotch Sess. Gas. 
 
 the lapse of four years, and the adop- n. s. 294. See also Hanberry v. Han- 
 
 tion of certain prescribed procedure, berry, 29 Ala. 719. 
 the party deserted shall have a right i Brookes v. Brookes, 1 Swab. & T. 
 
 to obtain a divorce. If such party had 326 ; ante, § 786. 
 not a jus qucesitum, such as could not be ^ Jones v. Jones, 13 Ala. 145 ; Brown 
 
 defeated at the option of the deserter v. Brown, 5 Gill, 249, 2 Md. Ch. 316 ; 
 
 by a subsequent tender of adherence, ante, § 806, note, 
 the remedy of the statute would be ^ Ante, § 805 6. 
 
 680 
 
CHAP. XLV.] OTHER SPECIFIC CAUSES. § 813 
 
 CHAPTEE XLV. 
 
 OTHER SPECIFIC CAUSES OP DIVORCE. 
 
 812. Inh'oduotion. 
 813, 813 a. Habitual Drunkenness. 
 
 814. Drunkenness with Wasting of the Estate. 
 815, 816. Gross Neglect of Duty. 
 817-821. Refusing to maintain, being of Ability. 
 
 822. Uniting with Shakers. 
 
 823. Conviction for Crime. 
 
 824. Absent and not heard of. 
 
 824 a. Gross Misbehavior and Wickedness. 
 
 825. Desertion and Living in Adultery. 
 
 826. Offering Indignities. 
 
 § 812. Introductory View. — The three titles of Adultery, 
 Cruelty, and Desertion, which occupied us through the last 
 three chapters, are the leading ones under the present general 
 division. But in several of our States other causes of divorce 
 are allowed ; and such of them as have furnished matter for 
 judicial discussion will be mentioned here. And the reader will 
 notice, how few decisions these other causes have furnished in 
 all, — a fact plainly showing, that the extension of the remedy 
 of divorce beyond the three common heads has not been found, 
 thus far, to operate practically to undo the marriage bond to 
 any great extent. 
 
 § 813. Habitual Drunkenness : — 
 
 Doctrine stated. — In some of our States, it is a ground of 
 divorce for a party to " become an habitual drunkard," i or 
 to be guilty of " habitual intemperance," ^ or the like ; for the 
 particular terms of the statutes differ. Yet generally it is 
 required that this offence, like desertion, shall have continued 
 a specified number of years to furnish ground for dissolving the 
 marriage.^ The author has shown, in another connection, what 
 
 1 Porritt V. Porrltt, 16 Mich. 140. not from the bond of matrimony until 
 
 2 Burns v. Burns, 13 Fla. 369, 376. two years after the separation from 
 
 3 In Louisiana, the husband's habit- bed and board. Leake v. Linton, 6 La. 
 ual intemperance entitles the wife to An. 262. See, as to Maine, Curtis v. 
 a divorce from bed ahi board ; but Hobart, 41 Maine, 230, 232 ; as to II- 
 
 681 
 
§ 813 a JUDICIAL DIVORCES. [BOOK VII. 
 
 are the nature and limits of this offence, and the meaning of 
 the various terms employed to denote or define it, as it is known 
 in the criminal law.^ What amounts to habitual drunkenness 
 is a question of law ; therefore, on the hearing of the libel for 
 divorce, it is not sufficient for the witnesses to testify, in general 
 terms, that the defendant is an habitual drunkard, but they 
 should state particular facts and circumstances, leaving the 
 court to judge of their sufficiency .^ It has been held in Cali- 
 fornia, that, to constitute " habitual intemperance," within the 
 meaning of the statute, the party need not be at all times 
 incapable of attending to business. " If," said Norton, J., 
 " there is a fixed habit of drinking to excess, to such a degree 
 as to disqualify a person from attending to his business during 
 the principal portion of the time usually devoted to business, it 
 is habitual intemperance, — although the person may at inter- 
 vals be in a condition to attend to his business affairs." ^ The 
 immoderate use of opium, though it may operate substantially 
 the same as of alcoholic liquors, is not intemperance within the 
 meaning of a statute of this kind.* And it is the same of 
 chloroform.^ 
 
 § 813 a. Origin of the Habit — Complaining Party. — The 
 words of the Michigan statute are, " shall have become an 
 habitual drunkard." And it has been held, that, if a woman 
 marries a man whom she knows to be already an habitual 
 drunkard, she cannot have a divorce for a continuation of the 
 habit. In a case where the complaining woman married knowing 
 the facts. Christian cy, J., observed : " We think the defendant 
 must have become an habitual drunkard after the marriage ; " 
 leaving undecided the question how it would be if she were 
 deceived, and supposed the man to be of sober habits.'' We 
 have seen,'^ that, if a man marries a common prostitute, she is 
 presumed to undertake to reform her habits according to the 
 marriage vow, and, if she does not, but commits adultery after- 
 
 linois, Harman o. Harman, 16 111.85; ' Mahone u. Mahone, 19 Cal. 626, 
 
 as to Arkansas, Rose a. Rose, 4 Eng. 628. 
 
 507. ■! Barber v. Barber, 14 Law Re- 
 
 1 Bishop Stat. Crimes, § 967-981. porter, 375. 
 
 2 Batchelder v. Batchelder, 14 N. H. 5 Bishop Stat. Crimes, § 972. 
 380. 6 Porritt v. Porritt, 16 Mich. 140. 
 
 682 
 
 ' Ante, § 179 and note. 
 
CHAP. XLV.] OTHER SPECIFIC CAUSES. §814 
 
 ward, he is entitled to have a divorce for it as in other cases. 
 But this Michigan statute is peculiar in its terms ; or, if it were 
 not, perhaps the same result would flow from the principle that 
 the woman by making the marriage contract with one whom 
 she knew to be a drunkard waived the objection ; and that a 
 drunkard does not, in marriage, agree to abandon drink, as a 
 strumpet when she marries agrees to confine herself to the one 
 man. To the writer, however, it seems, that, contemplating a 
 case in which the terms of the statute are general, and not 
 peculiar, as in Michigan, all parties who marry agree by the 
 very act of marriage not to commit afterward any offence which 
 the law has made ground of divorce ; the consequence of which 
 would be, that the Michigan doctrine should not be accepted in 
 States the statutes of which are in the ordinary and general 
 terms. 
 
 § 814. Drunkenness coupled with Wasting of JEstate : — 
 
 Doctrine stated. — In Kentucky, a divorce may be granted 
 for a " confirmed habit of drunkenness, pn the part of the hus- 
 band, of not less than one year's 4uration, accompanied with a 
 wasting of his estate, and without any suitable provision for 
 the maintenance of his wife and children." And it has been 
 held, that, to bring a case within this statute, there is no neces- 
 sity for the husband to possess actual real or personal property, 
 provided he possesses the physical and mental ability to support 
 himself and family by his labor. Said Stites, J. : " ' Wasting 
 of his estate,' where he has no property, should be deemed to 
 apply to and embrace a man's health, time, and labor, all of 
 which, for the purpose of supporting himself and family, are 
 essentially his estate." And he observed of the contrary con- 
 struction, that it " would operate sorely in cases similar to the 
 present, where the application for divorce has been deferred by 
 the wife, with the fond but vain hope of reformation, until, 
 after the entire estate has been squandered, she is constrained, 
 for the protection of herself and her children, to ask the protec- 
 tion of the law."^ 
 
 § 815. Gfross Neglect of Duty : — 
 
 Duration of the Neglect. — Gross neglect of duty is ground 
 of divorce in some of the States. Mr. Page says : " It is under- 
 
 1 McKay v. McKay, 18 B. Monr. 8. 
 
 683 
 
§ 817 JUDICIAL DITOKCEiS. [BOOK Til. 
 
 stood, that the Supreme Court of Ohio require that gross neglect 
 of duty should continue for three years, in order to entitle the 
 other party to a divorce. It is presumed that the legislature 
 did not contemplate any shorter period as a sufficient cause ; 
 since they require, that wilful absence, which is a total neglect 
 of all the duties of the marriage conti-act, in order to furnish 
 a ground of divorce, should be persisted in for three years. 
 Any other consti'uction would be inconsistent with the manifest 
 intent of the legislature." ^ 
 
 § 816. Illustrations of the Neglect. — The same writer, in 
 illustration of this matrimonial offence, states the following 
 case, decided by the Ohio Court of Common Pleas. The wife 
 was the offending pai-ty; she at first deserted her husband, 
 without reason, against his urgent entreaties. After some 
 months she returned, saying "she would make her husband's 
 house a hell." Proceeding to execute this threat, she refused 
 to perform domestic duties, refused to attend to the affairs of 
 the household ; and exhibited a furious and ungovernable tem- 
 per, under the influence of which, upon slight provocation, she 
 destroyed the furniture, and committed acts of violence upon 
 husband and children. A divorce was decreed.^ In another 
 case, this gross neglect was held not to be made out against 
 the husband, where the evidence was, that the parties quar- 
 relled, he abused the wife ; then they were reconciled and lived 
 together ; afterward they divided their furniture and separated, 
 at which he expressed regret, — being, in the language of a 
 witness, " a mean, drunken, idle, do-no-good fellow ; " after 
 which he committed acts of adultery .^ 
 
 § 817. Husband having the Ability but refusing to maintain 
 Wife : — 
 
 Hiisband's Ability — Nature of the Neglect. — In Vermont it is 
 a ground of divorce from the bond of matrimony, and in Mas- 
 sachusetts it was formerly so from bed and board,* for a " hus- 
 band, being of sufficient ability to maintain his wife, grossly, 
 wantonly, or cruelly to neglect or refuse so to do ;" and similar 
 
 1 Page on Div. 170. and for tUem divorces from tlie bond 
 
 2 K. V. K., Page on Div. 171. of matrimony are substituted, but made 
 s Tliorp V. Thorp, "Wright, 768. to operate for a limited period like di- 
 * At present, divorces from bed and vorces from bed and board. Stat. 1870, 
 
 board are abolished in Itlassachusetts, § 404. 
 
 684 
 
CHAP. XLV.] OTHER SPECIFIC CAUSES. § 817 a 
 
 provisions exist in some of the other States. Under this statute, 
 the complaining wife must produce to the court some evidence 
 of the husband's ability.^ And in a Vermont suit, " the proof," 
 says the report, " presented an ordinary case of wilful deser- 
 tion. In denying the bill, the court so remarked ; and further 
 intimated, in the present, as it did in some otlier cases arising 
 under the same statute, in the course of this circuit, that, in 
 order to grant a bill for the cause here alleged, something more 
 must be shown than a mere desertion of the wife by the hus- 
 band, although he were of ample ability to maintain her, and 
 refused her any aid in that respect. The terms, ' grossly, 
 wantonly, and cruelly,' &c., although not very definite, must 
 not be considered wholly insignificant. The legislature did 
 intend a new cause of divorce ; and the court could not regard 
 it as synonymous with that of wilful desertion, where three 
 years are required, and here only one year."^ In another case 
 " the facts were in substance, that the petitioner was in feeble 
 health, and had two children, of whom the petitionee was the 
 father. The petitionee was without property, but was able, by 
 his labor, to support his family ; " yet abandoned them, and 
 refused to render them any assistance whatever. The court, 
 on the same grounds as in the last case, denied her prayer for 
 divorce.^ But where the husband had appropriated to himself 
 the whole property of the wife, amounting to a considerable 
 sum, and then abandoned her, leaving her no means of support, 
 refusing also to provide for her, the divorce was granted.* 
 
 § 817 a. Contmued. — In a Massachusetts case it was held, 
 that the mere neglect of a husband to provide maintenance for 
 his wife and children during a period of fifteen years, while she 
 supported herself and them from her own earnings, there being 
 no circumstances of aggravation, does not authorize a divorce 
 for this cause. "The neglect," observed Colt, J., "must be 
 ' gross or wanton and cruel ' on his part, he being of sufi&cient 
 ability to provide. These words were used for the purpose of 
 giving to the conduct of the husband, in this respect, the 
 character which they imply, and not to be disregarded." ^ 
 
 1 Harteau u.-Harteau, 14 Pick. 181. * Hurlburt v. Hurlburt, 14 Vt. 561. 
 
 ^ Mandigo v. Mandigo, 15 Vt. 786. » Peabody v. Peabody, 104 Mass. 
 
 3 Jennings v. Jennings, 16 Vt. 607. 195, 197. 
 
 685 
 
§ 819 JUDICIAL DITOBCES. [BOOK VII. 
 
 § 818. How in California. — In California there is a statute 
 providing for a divorce " for wilful neglect on the part of the 
 hushand to provide for his wife the common necessaries of life, 
 having the ability to provide the same, for the period of three 
 years." ^ And upon this it was decided, that the wilful neglect 
 need not be accompanied with desertion. The judge also 
 observed, that the ability must consist in actual property, as 
 distinguished from the mere physical and mental capacity to 
 earn money. Concerning the neglect he said : It " must be 
 such as leaves the wife destitute of the common necessaries 
 of life, or such as would leave her destitute but for the charity 
 of others. If those common necessaries are provided by the 
 earnings of either husband or wife, there is no such wilful 
 neglect as is contemplated by the statute. The earnings of 
 both go into a common fund, and become common property, 
 the control and disposition of which belong to the husband ; and, 
 when applied by him or with his assent for her support, and 
 are sufficient for that purpose, there is no basis for a decree, 
 and the application must fail. In the present case, the earnings 
 of the plaintiff were sufficient for her support, and were applied 
 for that purpose, and it does not appear that the defendant 
 ever exercised control over them, or interfered with their use." 
 The facts which were, therefore, held to be insufficient are thus 
 stated by the judge : " It appears from the testimony that the 
 parties were married several years ago, and lived together until 
 about eleven months preceding the application ; that the de- 
 fendant is an able-bodied *man, a seaman by occupation, of idle 
 habits, and an occasional tippler ; that he has not made any 
 provision for the support of his wife for the last four years, but 
 that during this period she has supported herself by her own 
 earnings ; and that, in the opinion of the witnesses, he might 
 have obtained employment as a first or second officer of a ship, 
 at wages from forty to eighty dollars per month." ^ This Cali- 
 fornia decision, however, proceeded much upon the respect 
 which the judges bad for some New Hampshire decisions, 
 about to be considered. 
 
 § 819. How in New Hampshire. — The reader will note, that 
 
 1 Corap. Laws, p. 372. 2 "Washburn v. Washburn, 9 Cal. 
 
 475, opinion by Field, J. 
 686 
 
CHAP. XLV.J OTHER SPECIFIC CAUSES. § 820 
 
 the various statutes we are considering differ in their terms. 
 Consequently it may be presumed that the interpretations of 
 them should differ. The New Hampshire statute authorizes a 
 divorce from the bond of matrimony, " where the husband shall 
 have willingly absented himself from the wife for the space of 
 three years together, without making suitable provision for her 
 support and maintenance." ^ This provision is quite unlike the 
 Vermont and Massachusetts ones, where the neglect must be 
 " cruel," " gross," " wanton," and the like. But the court, in 
 construing it, illustrated the maxim^ Viperini est expositio quce 
 corrodit viscera textus? For it held it to be insufficient for a 
 wife to prove the husband's ability at the time of his abandon- 
 ment of her ; she must also affirmatively show, that the same 
 continued during the entire three years.^ Neither was it enough 
 for him to have health and capacity to earn money ; he must 
 have " actually had property sufficient to enable him to make 
 such provision."* And when a wife presented her claim, who, 
 besides proving the desertion and a distinct refusal to sup- 
 port her, pfoved also, that the husband, continuing to reside 
 in the same town with her, had an abundance of property 
 during the entire three years, the court declined to give the 
 divorce ; because she could have got trusted on his account 
 for necessaries, and he, having turned her off without cause, 
 would have been compelled to pay the bills. " The statute," 
 said the court, " intended such an absence as to leave the 
 wife without the means of compelling the husband to provide 
 for her support." ® 
 
 § 820. How in Legal Principle. — In the last three sections 
 are presented several questions of much interest. One is, 
 whether actual property of the husband's ownership is neces- 
 sary, under a right construction of the statutes referred to, as 
 part foundation for the divorce. The Kentucky court, we have 
 seen,^ has held it not to be necessary, under a similar statute 
 
 1 R. S. c. 148, § 3. available property, or the avails of his 
 
 2 11 Co. 34. own labor, at least, which he had re- 
 
 3 Fellows V. Fellows, 8 N. H. 160. fused or Deglected to appropriate for 
 ^ Mary F. u. Samuel F., 1 N. H. her maintenance." Davis v. Davis, 
 
 198; Fellows v. Fellows, supra. In a 87 N. H. 191. 
 
 late case, however, the judge observes, ^ Cram u. Cram, 6 N. H. 87. 
 
 that the husband must have " some ' Ante, § 813. 
 
 687 
 
§ 822 JUDICIAL DIVORCES. [BOOK VII. 
 
 ill Kentucky. And we shall see in its proper place, that ali- 
 mony, though understood to be a share of the husband's estate, 
 is to be based as well on his earnings and capacity to earn, as 
 on his actual property ; and that it may be decreed when he 
 has no property beyond what lies in his hands and braiu.^ 
 That this is the true view, and that this view should control 
 the interpretation of the statutes now under consideration, are 
 propositions which result from the plainest principles of justice. 
 Man was not sent into the world to rust in idleness, but to 
 work. A lazy man, whether he has property or not, is a curse 
 to the country, a curse to the world. When a woman unites 
 her fortunes with a man, in the way of marriage, she does not 
 give herself solely to his property, but to his soul and to his 
 body also. And to construe any statute which can fairly be 
 made to recognize this principle as being repugnant to it, is, it 
 is submitted, to violate all just rule. 
 
 § 821. Continued. — But the view taken by the California 
 court, that the woman's earnings are to be considered in con- 
 nection with the man's, is plainly just. Yet the further view 
 of this court, that the statute is not to be construed as applying 
 while she succeeds in getting her living from her own fingers 
 alone, and he refuses to help, is plainly unjust. The New Hamp- 
 shire doctrine, that, if the woman and man remain in the same 
 town, and his property is there also, after his desertion and 
 during its continuance and his refusal to provide, she must be 
 cut off from her divorce, on the ground of her common-law 
 right to use his credit provided she can find persons who will 
 give the credit and run their chance of collecting the bill of 
 him at the end of a lawsuit, — is a wide departure from well- 
 known principles, pervading our entire jurisprudence.^ 
 
 § 822. Uniting with Shakers: — 
 
 Doctrine stated. — In another connection,^ was somewhat 
 considered the offence of uniting and continuing with a society 
 that believes the relation of husband and wife to be unlawful, 
 as a ground of divorce. We saw that the Shakers are held to 
 
 1 Vol. n. § 446. consin statute ; Hooper v. Hooper, 19 
 
 2 And see Ahrenfeldt v. Ahrenfeldt, Misso. 355, under a similar Missouri 
 1 Hoffman, 47, decided under a similar statute. 
 
 New York statute; Johnson v. John- 3 Ante, § 780. 
 son, 4 Wis. 135, under a similar Wis- 
 
 688 
 
CHAP. XLV.] OTHER SPECIFIC CAUSES. § 823 
 
 be such- a society, within the meaning of this statute. ^ Where 
 a husband and his wife both united with the Shakers, but he 
 afterward withdrew from them, and she refused to withdraw, 
 he was adjudged to be entitled to his divorce at the end of the 
 statutory period. Said Bellows, J. : " The fact that both had 
 once assented to become members of such society makes it 
 none the less the policy of the law that they should resume 
 their marital relations ; and, if one ceases to be a member, and 
 desires to have those relations restored, we see no reason why 
 a refusal to return to them should not have the same effect as 
 if the applicant had never joined such society." ^ 
 
 § 823. Conviction for Grime : — 
 
 Doctrine stated. — In some of the States, it is ground of 
 divorce for a married party to be convicted of crime and sen- 
 tenced to imprisonment for a specified number of years.^ If 
 the terms of the statute are general, it would seem to follow 
 from familiar principles of interpretation that they should be 
 held to refer only to a domestic conviction, — that is, a convic- 
 tion under the authority of the State in which the statute 
 is enacted, — and not to one under a foreign jurisdiction.* 
 And this point was so adjudged in Tennessee ; but the court 
 rested its decision on the particular terms of the Tennessee 
 statute, and the learned judge who delivered the opinion seemed 
 to regard it as contrary to what should be the doctrine on gen- 
 eral principles.^ In New Hampshire the words of the statute 
 are general, " conviction of crime and actual imprisonment 
 in the State prison ; " and there the court has held, that, if the 
 conviction was in the district court of the United States for 
 the district of Massachusetts, and the imprisonment under 
 the conviction is in the Massachusetts State prison, the New 
 Hampshire tribunal is not therefore authorized to grant a di- 
 vorce.® The Delaware enactment settles this point by its own 
 terms ; thus, it provides that a divorce may be decreed from bed 
 and board or the bond of matrimony, at the discretion of the 
 court, " for," among other things, " conviction, either in or out 
 
 1 Dyer v. Dyer, 5 N. H. 271. * Ante, § 306 ; Bishop Stat. Crimes, 
 
 2 Ktts V. Fitts, 46 N. H. 184, 185. § 141. 
 
 3 Johnson v. Johnson, Walk. Mich. 5 Klutts v. Klutts, 5 Sneed, 423. 
 309 ; TJtsler v. TJtsIer, "Wright, Ohio, « Martin v. Martin, 47 N. H. 52. 
 627 ; Page on Div. 178. 
 
 44 689 
 
§ 824 JUDICIAL DIVORCES. [BOOK VII. 
 
 of this State, after marriage, of a crime by the laws of this State 
 deemed felony, whether such crime shall be perpetrated before or 
 after such marriage." ^ If there is an apparent discrepancy 
 between the record of conviction and the libel for divorce, in 
 respect of the name, — as, if in the one it is Nathan and in the 
 other Nathaniel, — parol evidence 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 de- 
 fendant resides.^ 
 
 § 82-1. Absent and not heard of : — 
 
 Doctrine stated. — It is a cause of divorce in New Hampshire 
 for a married .party to be absent three years together, without 
 being " heard of.^^ And this offence has been held not to be 
 sufficiently established in proof where it is simply shown, that, 
 during the statutory period, the defendant has not been " heard 
 from ; " since the latter expression, according to the under- 
 standing of most witnesses, refers to some direct personal com- 
 munication, by letter or otherwise, and there may have been 
 no such communication, yet, in some other way, he may have 
 been heard of. Evidence, also, should be produced from the 
 friends of the absent party, or some reason should be assigned 
 for its non-production.^ In Connecticut, an absence of seven 
 years, and the party not heard of, is a ground of divorce ; 
 which absence, says the court, " implies no injury, but is evi- 
 dence of the death of the absent party." ^ And Judge Reeve 
 observes : " It has been holden, that it is 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." ^ Plainly, however, if one should 
 j without a divorce contract in good faith a second marriage 
 / after the lapse of this period, and the absent party should be 
 I shown afterward to be living, such second marriage would be 
 f null. On the other hand, if there were no statute on the sub- 
 ject, but the question were left to the decision of the unwritten 
 law, death would be presumed after an absence of seven years, 
 or even after a shorter absence ; ^ then, if the absent party 
 
 i Stat, of 1859, c. 638. 4 Benton v. Benton, 1 Day, 111. 
 
 2 Utsler V. Utsler, supra. 6 Reeye Dom. Rel. 206. 
 
 2 I'ellows V. Fellows, 8 N. H. 160. 6 Ante, § 453-456. 
 
 690 
 
CHAP. XLV.] OTHER SPECIFIC CAUSES. § 825 
 
 were not shown to be alive, the marriage would be practically 
 good. Yet, if, under this statute, the absence had continued 
 for seven years, and then there had been a divorce for the 
 cause of this absence, the second marriage would be valid, 
 whether the absent one were truly living or dead.i The 
 proposition, therefore, that no divorce in such circumstances 
 is necessary, is calculated to mislead. 
 
 § 824 a. Gross Misbehavior and Wichedyiess ; — 
 What it is. — The Rhode Island statute authorizes a divorce 
 for " gross misbehavior and wickedness, repugnant to and in- 
 consistent with the marriage contract." And it has been held, 
 that, if a husband and a woman other than his wife have be 
 come daily companions, and have each avowed for the other 
 entire affection, yet if they have not been otherwise criminal 
 in their association, this alone does not entitle the wife to the 
 statutory remedy.^ 
 
 § 825. Desertion and Living in Adultery : — 
 Doctrine stated. — We have already seen something of this 
 matrimonial offence.^ In North Carolina, a divorce a vinculo 
 may be decreed in favor of an injured party, from whom the 
 other " has separated him or herself, and is living in adultery." 
 Under this statute there must be, first, a desertion : thus, if a 
 husband tells his wife he will not thereafter receive her as wife, 
 and upon this she leaves him and lives in adultery, he cannot 
 have a divorce ; because there is, in law, no desertion by her.* 
 Secondly, there must be a living in adultery. This must have 
 occurred subsequently to the desertion.^ We have seen,^ that, 
 according to the Louisiana doctrine, it is not necessary that 
 the offence should be continuing at the time when the suit is 
 brought ; but, under this North Carolina statute, the court seem 
 to deem such continuance to be essential. The necessity for 
 the adultery to be subsequent to the desertion comes not alone 
 from the particular language of the statute, but it proceeds 
 also from the doctrine of condonation, whereby the right of 
 the party to complain of the offence, if it were known to him, 
 
 1 See ante, § 452, 583. Ala. 168. As to which, however, see 
 
 2 Stevens v. Stevens, 8 E. I. 557. Houlston v. Houlston, 23 Ala. 777 ; 
 8 Ante, § 707. ante. § 787. 
 
 i Moss V. Moss, 2 Ire. 65 ; Foy v. ^ Hansley v. Hansley, 10 Ire. 506. 
 Toy, 13 Ire. 90 ; Morris v. Morris, 20 6 Ante, § 707. 
 
 691 
 
§ 826 JUDICIAL DIVORCES. [BOOK VII. 
 
 would be barred by subsequent cohabitation. But the court 
 apparently intimate something more than this ; " for the law," 
 said Euffin, 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 con- 
 tinue 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."^ A like 
 statutory provision exists in Alabama ^ and in some of the other 
 States. 
 
 § 826. Offering Indignities: — 
 
 Doctrine stated. — In some of the States it is made ground 
 of divorce, at the suit of the wife, for the husband to " offer 
 such indignities to her person as to render her condition intol- 
 erable and her life burdensome." There are even statutes 
 which make the offence mutual ; and so give the husband the 
 corresponding remedy when the wife offers, in like manner, 
 indignities to him. Under this provision, the Missouri court 
 once held, that an unfounded charge of adultery, brought by 
 the husband against his wife, constitutes a sufficient founda- 
 tion for the divorce.^ The North Carolina court has also laid 
 down substantially the same doctrine.* But the Missouri 
 court, after deciding as thus stated, reversed in a subsequent 
 case this doctrine, chiefly on the ground that indignities to 
 the " person " (the word used in the statute) are not indigni- 
 
 1 Hansley v. Hansley, supra. to the person may be offered without 
 
 2 Morris v. Morris, 20 Ala. 168 ; striking the body, or eren touching it 
 Houlston V. Houlston, 23 Ala. 777. As in a rude and offensive manner. Cen- 
 to what, in the criminal law, it is, to tximelious words, especially when ac- 
 "live together in adultery," see The companied with a contemptuous de- 
 State V. Glaze, 9 Ala. 283 ; Cameron v. meanor towards a person, may amount 
 The State, 14 Ala. 546 ; ColUns v. The to an indignity which would-be felt by 
 State, 14 Ala. 608 ; Belcher u. The a sensitive mind with far keener an- 
 State, 8 Humph. 63 ; Bishop Stat, guish than would be inflicted by a blow. 
 Crimes, § 695 et seq. And what, to a virtuous woman, can be 
 
 3 Cheatham v. Cheatham, 10 Misso. more contumelious than a charge made 
 296. by her husband of infidelity to her mar- 
 
 1 Coble V. Coble, 2 Jones Eq. 392, riage vow ? " 
 Battle, J., observing: "An indignity 
 
 692 
 
CHAP. XLV.] OTHER SPECIFIC CAUSES. § 826 
 
 ties to the mind, and that the charge of adultery is of the latter 
 kind.i Afterward, in 1849, the Missouri legislature interfered, 
 and made it cause of divorce for either party to " offer such in- 
 dignities to the other as shall render his or her condition intoler- 
 able." The court held, under the latter statute, that it is not 
 sufficient for the husband to write to the wife an expression of 
 his determination not to live with her more ; saying also, 
 she does not suit him, he was deceived in her, her conduct 
 toward his relatives has been improper ; and to post a notice 
 to all persons not to trust her on his account. Said Gamble, 
 J. : " It is impossible to lay down any rules that will apply to 
 all cases, in determining what indignities are grounds of 
 divorce because they render the condition of the injured party 
 intolerable. The habits and feelings of different persons differ 
 so much, that treatment which would produce the deepest dis- 
 tress with one would make but a slight impression upon the 
 feelings of another. It is impossible, therefore, under the 
 statute, 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. The legislature chose to leave 
 the subject at large, and, by the general words employed, 
 evidently designed to leave each case to be determined accord- 
 ing to its own peculiar circumstances. 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." ^ Conduct, to constitute 
 indignities within the statute, need not be such as to endanger 
 the wife's life.^ Some of the cases cited under the title Cruelty 
 were adjudications under this class of enactments ; and the 
 reader is, for these cases, and various points applicable to this 
 cause of divorce, referred to that title.* 
 
 1 Lewis V. Lewis, 5 Misso. 278. ' May v. May, 12 Smith, Pa. 206. 
 
 2 Hooper v. Hooper, 19 Misso. 355. * See more particularly ante, § 722, 
 See also Bowers v. Bowers, 19 Misso. note, 726, 746. 
 
 351 ; Rose v. Rose, 4 Eng. 507, 516 ; 
 Shell V. SheU, 2 Sneed, 716. 
 
 693 
 
§ 827 JUDICIAL DIVORCES. [BOOK VII. 
 
 CHAPTER XLYI. 
 
 THE DISCRETION OP THE COURT. 
 
 § 827. General View. — We saw, in one of the introductory 
 chapters of this work, something concerning the history and 
 policy of the law of divorce. And it there appeared, that 
 differing views upon this subject have hitherto prevailed among 
 legislators and judges.^ But whatever views are adopted, if 
 any liberty of divorce is given, plainly tliere will arise cases 
 falling completely within the equity of the divorce law, yet not 
 sufficiently within the letter to enable the tribunals to inter- 
 fere. Whether the difficulty is one which necessarily adheres 
 to the subject, or whether in the nature of the case there is a 
 remedy which is not generally recognized, may be matter of 
 speculation and belief. An attempt has been made, in the 
 legislation of some of our States, to supply the defect. The 
 method is the following : The statutes, after enumerating par- 
 ticular causes of divorce, add, in a separate clause, that the 
 court may also grant the divorce in all other cases appearing 
 to be just, beneficial to the public, and so on; the words differ- 
 ing in different States. In Maine, the early Revised Statutes 
 provided for divorce for a variety of specific causes ; afterward 
 the general clause just mentioned was introduced as an addi- 
 tional provision ; and, in 1850, all specific causes were 
 abolished, and in place of them it was enacted that, " in the 
 trial of all libels for divorce, pending, or hereafter to be com- 
 menced, the libellant .... may allege and prove 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." ^ 
 The Revised Statutes of 1857 contained, instead of particular 
 mention of matrimonial offences justifying the dissolution of 
 
 1 Ante, § 21 et seq.. Ricker, 29 Maine, 281 ; Small v. Small, 
 
 2 Stat. 1850, c. 171, § 2. And see 31 Maine, 493 ; Motley v. Motley, 81 
 Stat. 1849, c. 116, and Stat. 1847, c. 13 ; Maine, 490. 
 
 Anonymous, 27 Maine, 568 ; Kicker v. . ' 
 
 694 
 
CHAP. SLVI.] DISCRETION OF COURT. § 829 
 
 marriage, the general enunciation, that '" a divorce from the 
 bonds of matrimony may be decreed by any justice of the 
 Supreme Judicial Court, .... when, in the exercise 'of a 
 sound discretion, he deems it reasonable and proper, condu- 
 cive to domestic harmony, and consistent with the peace and 
 morality of society." i The Eevised Statutes of 1871 are in 
 like terms ; but they also specially authorize a divorce from 
 the bond of matrimony in cases of desertion, and a divorce 
 from bed and board for some specified offences.^ 
 
 § 828. Reason for this Legislation. — Probably one of the 
 motives prompting to this kind of legislation has been an 
 expectation, that the general discretion committed tlius to the 
 courts will prevent the legislature from being burdened with 
 applications for special divorces. Yet if it tends to disencum- 
 ber the legislative department of the government, it does not 
 the judicial. And Chancellor Kent has well said, that the 
 " vast power and discretion " given by these statutes to the 
 judges must prove " exceedingly embarrassing and painful 
 in the exercise." ^ 
 
 § 829. Proposed Legislative Substitute — Interpretation of 
 Foregoing Provision. — If it were within the province of one who 
 is rather to illustrate and make plain what is, than to suggest 
 what sliould be, the author would propose, for the considera- 
 tion of law-makers, the following, as a substitute for this sort 
 of provision. Let the statutes enumerate such specific causes of 
 divorce as are deemed to be universally expedient. The legis- 
 lature should bear in mind tliat the courts will, without special 
 direction, limit the operation of these causes by those bounds 
 which the principles of the unwritten law have drawn ; so that, 
 for example, if the party complaining is also guilty of the 
 same tiling as the defendant, he cannot have the divorce, how- 
 ever completely the defendant's conduct is within the statutory 
 words. Let the specific enumeration cover the whole ground 
 of what, as thus explained, is universally expedient. Then 
 let a provision be added to the following effect : " Whereas, in 
 the developments of future events, cases may be presented 
 before the courts, falling substantially within the spirit of the 
 
 1 R. S. of 1857, c. 60, § 2. '2 Kent Com. 105, note. 
 
 2 Maine R. S. of 1871, c. 60. 
 
 695 
 
§ 830 JUDICIAL DIVORCES. [BOOK VII. 
 
 law as hereinbefore stated, yet not within "its terms, it is 
 enacted, that, whenever the judge who hears a cause for 
 divorce deems the case to be within the reason of the law, 
 within the general mischief which the law is intended to 
 remedy, or within what it may be presumed would have been 
 provided against by the legislature establishing the foregoing 
 causes of divorce, had it foreseen the specific case, and found 
 language to* meet it without including cases not within the 
 same reason, he shall grant the divorce." Perhaps the general 
 clause under consideration in this chapter should be interpreted 
 to have the same meaning as the clause proposed ; but, how- 
 ever this may be, the proposed clause would leave the 
 matter plainly as it should be left for judicial action, in dis- 
 tinction from legislative. And however it might be construed 
 and applied by the courts, whether more or less strictly, it 
 would never be held to permit a judge to grant a divorce 
 merely because his own private opinion was favorable to letting 
 parties loose when they wished to be unloosed ; while, on the 
 other hand, it would sometimes prompt even . the most iron- 
 hearted judge to relax a stern rule, to meet the call of a par- 
 ticular equity. 
 
 § 830. Interpretation, continued — Judicial Discretion — Con- 
 stitutional — Appeal. — We have no decisions concerning the 
 interpretation of this general clause, where it stands entirely 
 alone, as it lately did in Maine, without any expression of the 
 legislative will concerning specific causes. But where it stands 
 connected with specific causes,^ it is illuminated somewhat by 
 judicial determination. One point apparently settled is, that 
 the discretion is not an arbitrary one, such as guides the leg- 
 islative bodies in enacting laws ; but a judicial discretion, 
 appropriate to a judicial tribunal.^ The author in another con- 
 
 1 Ante, § 827. 701. "Discretion," it is said in Coke's 
 
 2 Scroggins v. Scroggins, 3 Dev. Reports, " is a science or understanding 
 535 ; Barden a. Barden, 3 Dev. 548 ; to discern between falsity and truth, 
 Ritter «. Eitter, 5 Blackf. 81. "In all between wrong and right, between 
 cases where by law, whether statute or shadows and substance, between equity 
 common law, a subject is referred to and colorable glosses and pretences, 
 the discretion of the court, that must and not to do according to their wills 
 be regarded as a sound discretion, to be and private affections." Rooke's Case, 
 exercised aecordingto the circumstances 5 Co. 99 6, 100 a. And see Keighley's 
 of each particular case." Daniel, J., in Case, 10 Co. 139 a, 140 a ; ante, § 307 a ; 
 Commonwealth v. Wyatt, 6 Rand. 694, Vol. II. § 82. 
 
 696 
 
CHAP. XLVI.] DISCRETION OP COURT. § 831 
 
 nection undertook to state what is meant by a judicial discre- 
 tion ; thus, — " This expression does not imply a power in 
 each individual judge to do what he likes ; but perhaps it may 
 be defined to denote a sort of individual liberty, a sort of lib- 
 erty in the collective judges, and an adherence to legal princi- 
 ples, blended in such a way as shall constitute an established 
 course of justice, bending, to the- circumstances of cases, instead 
 of requiring the cases to bend to it." i " The statute," observed 
 the Indiana court, " requires a cause for divorce, on which the 
 discretion of the court is to be exercised ; " and then must fol- 
 low " the conclusion of the judgment that the cause is reason- 
 able, and such a one as forfeits the marriage contract on the 
 part of the wrongdoer." This power, " like all other discre- 
 tionary power in courts, must be exercised in a sound and 
 legal manner ; it must not be governed by caprice or prejudice, 
 or wild and visionary notions with regard to the marriage in- 
 stitution, but should be so directed as to conduce to domestic 
 harmony, and the peace and morality of society." The enact- 
 ment was, therefore, held not to be unconstitutional, as vesting 
 iu the courts legislative authority ; also the supposed improper 
 exercise of the discretion, by the court below, was held to be 
 legal matter for appeal.^ 
 
 § 831. The Discretion, continued. — And in North Carolina, 
 RufEn, J., observed : " I cannot suppose that the discretion 
 conferred is a mere personal one, whether wild or sober ; but 
 must, from the nature of things, be confined to the cases for 
 which provision was before made by law, or to those of a like 
 kind;" for the provision implies, that there are proper causes 
 besides the ones specified. " We cannot," he continues, " in- 
 tend that the meaning was, that the court should grant divorces 
 where under like circumstances the legislature had or might 
 be expected to grant them by statute ; for the contrary is im- 
 plied by commanding the action of courts, — usually regulated 
 by fixed rules. The court is, then, obliged to adopt the middle 
 course, and prescribe to itself such principles as we think sound 
 
 1 1 Bishop Mar. Women, § 676. justify a reversal of the discretion ex- 
 
 2 Ritter v. Ritter, supra, opinion hy ercised by the lower judge. Euby v. 
 Dewey, J. Still, as to the appeal, a Ruby, 29 Ind. 174. 
 
 very clear case must be made out to 
 
 697 
 
§ 833 JUDICIAL DIVOECES. [BOOK TH. 
 
 lawgivers, who allow of divorces at all, would send as rescripts 
 to a judiciary." ^ 
 
 §832. Continned — Peace and Haimony. — In lowa, where 
 the statute authorizes a divorce when it appears, "that the 
 parties cannot live together in peace and harmony, and that 
 their welfare requires a separation," Wright, C. J., observed : 
 " It was the province and duty of the court to judge what was, 
 and was not, proved ; and it is immaterial how much or how 
 strongly the defendant may admit the sufficiency of the proof. 
 The public has an interest in these cases, and the parties can- 
 not be their own judges, but the court decides where so many 
 interests are involved." ^ Under this statute it has been 
 deemed incumbent on the court to consider the moral, the 
 social, and the mental well-being of the parties, in distinction 
 from their mere pecuniary interests, and to consider somewhat 
 the welfare of the children. In one case, where a divorce was 
 granted on the prayer of the wife, the following facts seem to 
 be those which principally influenced the court. The husband's 
 " harsh language," said Wright, C. J., " has been oft repeated, 
 increasing in severity up to the time of their separation, in 
 December, 1854:. Xothing like personal violence is pretended, 
 but instances of abusive language, quite as well calculated to 
 destroy the peace of the family, and disturb its happiness. Xot 
 only so, but we are satisfied that these parties cannot live to- 
 gether in peace and happiness, from the fact that the wife, not 
 without just cause [though the proof was not deemed to be 
 judicially sufficient to authorize a divorce for adultery], labors 
 under the conviction that the husband has been guilty of adul- 
 terous intercourse with other women, and this conviction or 
 impression he has never for a moment attempted to remove." ^ 
 
 § 838. Contmued. — If we adopt the interpretation suggested 
 a few sections back,* we hive there as plain a judicial rule as 
 the nature of this peculiar jurisdiction admits. If we do not 
 adopt that interpretation, then evidently we can only commend 
 the courts to the rules which they may suppose would guide 
 the legislature, or ought to guide it, were the particular appli- 
 
 1 Scroggins ... Scroggins, 3 Dev. 1 Inskeep «. iDskeep, 5 Iowa, 204, 
 535. 217. 
 
 - Lyster v. Lyster, 1 Iowa, 130. < Ante, § 829. 
 
 698 
 
CHAP. XLVI.] DISCRETION OP COURT. § 835 
 
 cation ma(Je to its discretion. That a legislature acts blindly — 
 or, rather, that in theory it so acts, however it may sometimes 
 proceed when the storm of passion is on, or when ignorance 
 rules the hour, or when, what is worse than ignorance, party 
 prejudice rules — is a mistake. All good legislators hold them- 
 selves as bound by established principles. Those principles 
 may not be so clearly ascertained, or in their nature so capable 
 of accurate definition, as are the rules which bind the courts ; 
 yet, to the extent to which they are definite, their grasp is as 
 firm. The result of which is, that, in any view, a judge is not 
 empowered to act arbitrarily, or from motives or views peculiar 
 to himself, in these cases. 
 
 § 834. Continued — Desertion — Several Imperfect Causes 
 united — Opium. — Where, in Maine, the former Revised Statutes 
 prescribed certain specific causes of divorce, and a subsequent 
 statute added this general clause, the latter was construed to re- 
 peal no existing laws, but only to authorize divorce for causes not 
 before " provided for by law." Therefore the court deemed itself 
 not authorized to grant a divorce for desertion continued during 
 a less period,^ or for cruelty less severe,^ than the Revised Stat- 
 utes had prescribed. The like rule was followed in Illinois, 
 where the general clause, somewhat different in its words, is a 
 part of the same statute which enumerates the specific causes.^ 
 In Connecticut, where the statute authorized divorces for 
 drunkenness, among otlter specific things ; also for any mis- 
 conduct of the respondent which would permanently destroy 
 the happiness of the petitioner, and defeat the purposes of the 
 marriage ; the habitual and immoderate use of opium was 
 held to be such misconduct ; * a decision, it will be observed, 
 quite in harmony with the principles laid down in North 
 Carolina.^ 
 
 § 835. Continued — (3-eneral Views — Combination of Things. 
 — In a Maine case,^ Shepley, C. J., pronouncing judgment of 
 
 1 Anonymous, 27 Maine, 663 ; Rick- 3 Birkby v. Birkby, 15 111. 120. And 
 er V. Ricker, 29 Maine, 281 ; Small v. see Hamaker v. Hamaker, 18 111. 137. 
 Small, 81 Maine, 493 ; Motley v. Mot- * Barber v. Barber, 14 Law Ee- 
 ley, 31 Maine, 490. For the present porter, 375. 
 
 law of Maine, see ante, § 827. ^ Ante, § 831. 
 
 2 Elwell V. Elwell, 32 Maine, 337. " Before the act of 1850, c. 171, ante, 
 
 § 827. 
 
 699 
 
§ 835 JUDICIAL DIVORCES. [BOOK VII. 
 
 divorce under this general clause, said : " The discretionary 
 power, conferred by the law of 1849, is extremely broad, but it 
 has limits. It is to be exercised only when conducive to 
 domestic harmony, and consistent with the peace and morality 
 of society. What, then, are the cases or the classes of cases 
 in which the power can be properly exercised ? Suppose the 
 case of a party who had been for three years a common drunk- 
 ard. In such a case, the law gives a right to a divorce. That 
 law is an exposition of the discretion of the legislature upon 
 the subject. Could this court set up its discretion above that 
 of the legislature, and decide that it would require proof of 
 four years' habitual drunkenness ? Or that it would be satis- 
 fied with proof of two years' ? We think the discretion of the 
 legislature a safe standard as to every cause of divorce for 
 which they have made provision. But there may be cases for 
 which the former laws did not provide ; such, for instance, as 
 the co-existence of several of the prescribed causes^ though 
 neither of them has continued so long as to be, of itself, a suf- 
 ficient ground of divorce. Such cases come within the discre- 
 tionary power conferred by the act of 1849. For them the 
 Revised Statutes furnish no guide, and have indicated no 
 standard. In this case of Motley's [the one before the court], 
 there is a combination of wrongs ; there is habitual drunken- 
 ness ; there is extreme cruelty towards the libellant, so that 
 her personal safety is endangered ; and there is desertion." 
 (But by the Revised Statutes of Maine, the second of these 
 causes was ground only for divorce from bed and board ; and, 
 in the case the learned judge was considering, the first and 
 third had not sufficiently matured by time.) " For either of 
 these wrongs, the law makes an appropriate provision, but it is 
 silent as to a combination of them. That combination brings 
 the case within the statute of 1849. We are, therefore, now 
 called upon to exercise a sound discretion. Considering that 
 there is a family of children, is this a case in which a divorce 
 would be conducive to domestic harmony, and consistent with 
 the peace and the morality of society ? We think it is ; and 
 accordingly there must be a decree of divorce." ^ 
 
 1 Motley V. Motley, 31 Maine, 490. See, however, on this point, Birbey v. 
 Birbey, 15 lU. 120. 
 
 700 
 
CHAP. XLTI.] DISCRETION OF COURT. § 836 
 
 § 836. Abandonment repented of. — In an Indiana case, 
 where the wife was the complaining party, it appeared that 
 before the marriage she had been divorced from a former hus- 
 band who was still living. Then the second husband, and per- 
 haps the wife also, became convinced by texts of scripture that 
 the second marriage was forbidden by the divine law, and they 
 separated under articles. Soon after the separation the hus- 
 band entreated her to return to cohabitation, but she refused 
 and brought the divorce suit, on the ground of his conduct as 
 thus described. But the court deemed the cause to be insuf- 
 ficient, and denied her prayer.^ 
 
 1 Ruby V. Euby, 29 Ind. 174. 
 
 701 
 
 END OP VOL. I.