a marriage, in consequence of any contract, may collaterally extend to revive this clause of Henry VIII's statute, and abolish the impediment of precontract, I leave to be considered by the canonists. (7) The other sort of disabilities are those which are created, or at least enforced, by the municipal laws. And though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. These civil disabilities make the contract void ab initio, and not merely voidable; not that they *dissolve a contract already formed, but they render the [*436] parties incapable of forming any contract at all: they do not put asunder those who are joined together, but they previously hinder the junction. And, if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial union. (8) 1. The first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void: (g) polygamy being condemned both by the law of the New Testament, and the policy of all prudent states, especially in these northern climates. And Justinian, even in the climate of modern Turkey, is express, (h) that "duas uxores eodem tempore habere non licet." (9) 2. The next legal disability is want of age. This is sufficient to avoid all other contracts, on account of the imbecility of judgment in the parties contracting; a fortiori therefore it ought to avoid this, the most important contract of any. Therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. This is founded on the civil law. (i) But the canon law pays a greater regard to the constitution, than the age, of the parties; (j) for if they are habiles ad matrimonium, it is a good marriage, whatever their age may be. And in our law it is so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again. (k) If the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she may for in contracts the obligation must be mutual; both must be bound, or neither: (10) and so it is, vice versa, when the wife is of years of discretion, and the husband under. (2) (g) Bro. Abr. tit. Bastardy, pl. 8. (j) Decretal. l. 4, tit. 2, qu. 3. (h) Inst. 1, 10, 6. (k) Co. Litt. 79. (i) Leon. Constit. 109. (1) Ibid. (7) [A contract per verba de præsenti tempore used to be considered in the ecclesiastical courts ipsum matrimonium, and if either party had afterwards married, this, as a second marriage, would have been annulled in the spiritual courts, and the first contract enforced. See an instance of it, 4 Co. 29.] (8) And in such a case the parties may treat the marriage as absolutely void, and are at liberty to contract lawful matrimony without first obtaining decree of nullity. But in cases where the invalidity depends upon questions of fact, it is manifestly the dictate of proper prudence that a suit for decree of nullity should be instituted in the proper court. (9) The statute 9 Geo. IV, c. 31, the provisions of which have very generally been adopted in the American states, exempts from the criminal provisions for the punishment of polygamy the case of a party whose husband or wife shall have been absent from such person for the space of seven years then last past, and shall not have been known to such person to be living within that time; but the second marriage under such circumstances is nevertheless void, and either party may withdraw from it on discovering the error under which it was agreed to. Kenley v. Kenley, 2 Yeates, 207; Williamson v. Parisien, 1 Johns. Ch. 389; Heffner v. Heffner, 23 Penn. St. 104. But it seems that by statute in some states the second marriage is made voidable only. See Valleau v. Valleau, 6 Paige, 207; White v. Lowe, 1 Redf. Sur. R. 378. (10) If parties who are of the proper age of consent agree to marry each other, and one of them is under the age of twenty-one years, and the other has reached that age, the latter is bound by the contract, and liable to respond in damages for a breach thereof, while the former may repudiate it with impunity. Hunt v. Peake, 5 Cow. 475; Willard v. Stone, 7 Cow. 22. The common law rule that either party to a marriage, while one is under the age of consent [*437] *3. Another incapacity arises from want of consent of parents or guardians. By the common law, if the parties themselves were of the age of consent, there wanted no other concurrence to make the marriage valid: and this was agreeable to the canon law. But, by several statutes, (m) penalties of 1007. are laid on every clergyman who marries a couple either without publication of banns, which may give notice to parents or guardians, or without a license, to obtain which the consent of parents or guardians must be sworn to. And by the statute 4 and 5 Ph. and M. c. 8, whosoever marries any woman child under the age of sixteen years, without consent of parents or guardians, shall be subject to fine, or five years' imprisonment: and her estate during the husband's life shall go to and be enjoyed by the next heir. The civil law indeed required the consent of the parents or tutor at all ages, unless the children were emancipated, or out of the parents' power: (n) and if such consent from the father was wanting, the marriage was null, and the children illegitimate (0) but the consent of the mother or guardians, if unreasonably withheld, might be redressed and supplied by the judge, or the president of the province: (p) and if the father was non compos, a similar remedy was given. (7) These provisions are adopted and imitated by the French and Hollanders, with this difference: that in France the sons cannot marry without consent of parents till thirty years of age, nor the daughters till twenty-five; (r) (11) and in Holland, the sons are at their own disposal at twenty-five, and the daughters at twenty. (s) Thus hath stood, and thus at present stands, the law in other neighbouring countries. And it has lately been thought proper to introduce somewhat of the same policy into our laws, by statute 26 Geo. II, c. 33, whereby it is enacted, that all marriages celebrated by license (for banns suppose notice) where either of the parties is under twenty-one, (not being a widow or widower, who are supposed emancipated,) without the consent of the father, or, if he be not living, of the [*438] mother or guardians, shall be absolutely void. (12) A like provision is made as in the civil law, where the mother or guardian is non compos, beyond sea, or unreasonably froward, to dispense with such consent at the discretion of the lord chancellor: but no provision is made, in case the father should labour under any mental or other incapacity. (13) Much may be, and much has been, said both for and against this innovation upon our ancient laws and constitution. On the one hand, it prevents the clandestine marriages of minors, which are often a terrible inconvenience to those private families wherein they happen. On the other hand, restraints upon marriages, especially among the lower class, are evidently detrimental to the public by hindering the increase of the people; and to religion and morality, by encouraging licentiousness and debauchery among the single of both sexes; and thereby destroying one end of society and government, which is concubitu prohibibere vago. And of this last inconvenience the Roman laws were so sensible, that at the same time that they forbade marriage without the consent of parents or guardians, they were less rigorous upon that very account with regard to other restraints: for, if a parent did not (m) 6 and 7 Will. III, c. 6. 7 and 8 W. III, c. 35. 7. 10 Ann. c. 19. (n) Ff. 23, 2. 2, and 18. may repudiate it: Reeve. Dom. Rel. 200; was held, in People v. Slack, 15 Mich. 199, to be changed by statute in Michigan, so that the party competent to consent is bound by the marriage. (11) [This is now altered to 25 in sons and 21 in daughters, and the consent of the father suffices. After those ages the parties may marry after three respectful, but ineffectual, endeavors to obtain consent of parents. Code Civil, Livre 1, Title 5.] (12) But now by several statutes, the last of which is 19 and 20 Vic. c. 119, s. 17, the marriage of a minor, if actually solemnized without consent, is nevertheless valid. But in such case the court of chancery may deprive the offending party of any pecuniary benefit from the marriage. Statute 4 Geo. IV, c. 76, s. 23; 6 and 7 Wm. IV, c. 85, s. 43. In case consent is unreasonably refused, an appeal may be had to the court of chancery. See Exparte I. C., 3 Myl. & Cr. 471. (13) A provision for this will be found in the later statutes. provide a husband for his daughter, by the time she arrived at the age of twentyfive, and she afterwards made a slip in her conduct, he was not allowed to disinherit her upon that account; "quia non sua culpa, sed parentum, id commisisse cognoscitur." (t) (14) 4. A fourth incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid. (u) It was for (14) [The statute 6 and 7 Wm. IV, c. 85 (explained by 1 Vic. c. 22, and 3 and 4 Vic. c. 72), was passed for the relief of those who scrupled at joining in the services of the established church, and was the result of a long and arduous struggle carried on for many years in and out of parliament. It provides for places of religious worship, other than the churches and chapels of the establishment, being registered for the solemnization of marriages therein; and it also enables persons, who wish to do so, to enter into this contract without any religious ceremony whatever. It is therefore no longer essential to the validity of a marriage, either that it should be solemnized in a parish church or public chapel, or be performed by a person in holy orders; but whether celebrated in facie ecclesiæ, or (under the provisions of the above mentioned statute) in a place of religious worship, or in the presence merely of the superintendent registrar of births, deaths and marriages, the officer before whom civil marriages may be performed, the contract must be preceded and accompanied by certain circumstances of publicity, or entered into in virtue of a license obtainable only on proof by affidavit that there is no legal impediment to the marriage.] On the question whether the marriage relation has been duly formed, it becomes important to distinguish between the actual relation of marriage, and those facts and circumstances which may tend to prove a marriage, and from which a court or jury might be justified in inferring its existence. A marriage is one thing; the proof of a marriage is another. Letters v. Cady, 10 Cal. 533. Mere cohabitation, after the manner of husband and wife, can never constitute marriage: Lindo v. Belisario, 1 Hagg. Cons. 216; Goldbeck v. Goldbeck, 3 Green. N. J., 42; but nevertheless such cohabitation is a circumstance which, taken in connection with the public recognition of each other as sustaining this relation, or with general reputation of marriage, may fully warrant the inference that a lawful marriage has been formed. Indeed such cohabitation and reputation, supported as they would be by the presumption of legal conduct rather than the reverse, must generally be sufficient evidence of a marriage where civil rights only are involved, and it is only where one of the parties is charged with a criminal disregard of the obligations which marriage imposes, and where the presumption arising from cohabitation and reputation would be met by a counter presumption of innocence, that the law would demand more direct evidence. Fleming v. Fleming, 4 Bing. 266; Starr v. Peck, 1 Hill, 270; State v. Winkley, 14 N. H. 480; Arthur v. Broadnax, 3 Ala. 557; Hantz v. Sealey, 6 Binn. 405; Northfield v. Vershire, 33 Vt. 110; Harman v. Harman, 16 Ill. 85; Henderson v. Cargill, 31 Miss. 367; Holmes v. Holmes, 6 La. 463; Commonwealth v. Stump, 53 Penn. St. 132. Thus, in prosecutions for bigamy and criminal conversation an actual marriage must be proved. Birt v. Barlow, 1 Doug. 171; Taylor v. Shemwell, 4 B. Monr. 575; People v. Humphrey, 7 Johns. 314; Clayton v. Wardell, 4 N. Y. 230. And so where a defendant is prosecuted criminally for sexual commerce, the unlawfulness of which depends upon a prior marriage. State v. Wedgwood, 8 Greenl. 75; Commonwealth v. Norcross, 9 Mass. 492; State v. Roswell, 6 Conn. 446. And even where civil rights only are involved, if there be proof of one marriage in due form, it would seem that this is not rebutted by proof of former cohabitation and reputed marriage of one of the parties with another person. Clayton v. Wardell, 4 N. Y. 230; Houpt v. Houpt, 5 Ohio, 539. In the cases where a marriage may legitimately be inferred from cohabitation and the concurrent circumstances, it is competent to rebut the presumption by any evidence which proves that in fact there was no marriage. Philbrick v. Spangler, 15 La. An. 46; Matter of Taylor, 9 Paige, 611. Nevertheless, if a party has allowed a woman to be held out to the world as his wife, he may be precluded, on the principle of estoppel, from disproving the marriage as against parties who, trusting to its existence, had supplied the woman with those articles, for herself or her family, which a trader is usually justified in treating a married woman as the agent of her husband to purchase. When the statute law of the state does not expressly make some formal ceremony, or the presence of a magistrate, priest or minister of religion necessary, the common law, it is believed, will permit parties who are legally competent, to consent to intermarry, by any form of consent they may see fit to adopt, and without any formal ceremony whatever. Hicks v. Cochran, 4 Edw. Ch. 107; Fenton v. Reed, 4 Johns. 52; Rose v. Clark, 8 Paige, 574; Donnelly v. Donnelly, 8 B. Monr. 113; Hantz v. Sealy, 6 Binn. 405; Newbury v. Brunswick, 2 Vt. 151; Londonderry v. Chester, 2 N. H. 268; Dumaresly v. Fishly, 3 A. K. Marsh. 368; Bashaw v. State, 1 Yerg. 177; Carmichael v. State, 12 Ohio, N. S. 553; Cheseldine v. Brewer, 1 H. and Mc H. 152; State v. Murphy, 6 Ala. 765; Commonwealth v. Stump, 53 Penn. St. 132. Such is very clearly the weight of authority, though some doubt was cast upon this point by the two cases of Regina v. Millis, 10 Cl. and Fin. 534, and Jewell's Lessee v. Jewell, 1 How. 219; in each of which the court was equally divided. See also Beamish v. Beamish. 9 H. L. Cas. 274. merely adjudged, that the issue of an idiot was legitimate, and consequently that his marriage was valid. A strange determination! since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to any thing. And therefore the civil law judged much more sensibly when it made such deprivations of reason a previous impediment; *though not a cause of divorce, if they happened after marriage. (v) And mod- [*439] ern resolutions have adhered to the reason of the civil law, by determining (w) that the marriage of a lunatic, not being in a lucid interval, was absolutely void. But as it might be difficult to prove the exact state of the party's mind at the actual celebration of the nuptials, upon this account, concurring with some private family (x) reasons, the statute 15 Geo. II, c. 30, has provided that the marriage of lunatics and persons under phrenzies, if found lunatics under a commission, or committed to the care of trustees by any act of parliament, before they are declared of sound mind by the lord chancellor or the majority of such trustees, shall be totally void. (15) (v) Ff. 23, tit. 1, l. 8, and tit. 2, l. 16. (w) Morrison's case, Coram Delegat. (x) See private acts, 23 Geo.II, c. 6. (15) The parties must each have a consenting mind, and be able to understand the relation they are about to form. True v. Ranney, 21 N. H. 53. That defect of understanding which would preclude the forming of any other valid contract, would preclude also a marriage contract. Turnerv. Meyers, 1 Hagg. Cons. R. 416; Browning v. Reane, 2 Phil. 70. If the incapacity be such that the party is incapable of understanding the nature of the contract itself, and incapable from mental imbecility of taking care of his or her own person or property, he or she is obviously incapable of disposing of person and property by the marriage contract. Per Sir John Nichol in Browning v. Reane, 2 Phil. 70. A marriage with an idiot or an insane person is therefore void. True v. Ranney, 21 N. H. 52; Parker v. Parker, 2 Lee, 382. So is a marriage with a lunatic, unless when contracted during a lucid interval. Rawdon v. Rawdon, 28 Ala. 565; Cole v. Cole, 5 Sneed, 57. So is one with a person stupified from intoxication so as to be incapable of understanding the nature of the transaction at the time. Clement v. Mattison, 3 Rich. 93. And not only must there be a consenting mind, that is to say, a capacity to consent, but the parties must have actually consented. They must not only have agreed to marry, but they must have intended completely to form the relation, and in some manner have expressed that consent. The performance of a marriage ceremony is evidence of consent, but it is not conclusive, and it may still be shown that they went through the form as a mere jest, or to evidence the sincerity of their design to form the relation at some future time, or that they intended it for some private purpose of their own, and did not contemplate marriage in fact. Dalrymple v. Dalrymple, 2 Hagg. Cons. R. 54; Clark v. Field, 13 Vt. 460. A consent obtained by fraud is no consent, and may be repudiated, notwithstanding a ceremony of marriage may have been gone through with. But what is or is not such fraud as should avoid a marriage is a question usually so complicated by the particular circumstances of the case under consideration, that it does not become necessary to lay down a rule by which cases not thus complicated can be tested. If, for instance, a female heiress, of immature and feeble mind, should fall a prey to a needy adventurer, who, by artifice and false representations, should entice her from the protection of parents or guardian, and by importunities wring a reluctant consent to an unsuitable marriage, it will at once be perceived that there are circumstances attending the case which may properly distinguish it from one where a man, in the full possession of a mature mind, has surrendered himself with blind credulity to the fascinations of an artful woman, and has entered into relations of matrimony with her, without making those inquiries concerning her character, habits or circumstances which prudence would have suggested, but which he has been content to dispense with. Weakness of intellect in the party claiming to be defrauded is an important element in these cases, as would also be the improper use of the influence derived from a confidential relation, like that of guardian and ward. Portsmouth v. Portsmouth, 1 Hagg. 355; Harford v. Morris, 2 Hagg. Cons. R. 423. Speaking generally upon this subject, it will be safe to say, that deception by one of the parties in respect to his or her character, temper, reputation, standing in society, bodily condition or fortune, while it might justify the other in repudiating an executory contract to marry, would not be sufficient ground for avoiding a marriage. The law presumes that every person employs due caution in a matter in which his happiness for life is so materially involved, and from regard to the highest interests of society, it refuses to enter upon any inquiry whether such caution has been employed or not, but makes the presumption conclusive. Wakefield v. Mackay, 1 Phile. 134; Reynolds v. Reynolds, 3 Allen, 607. And this is so even as to the important matter of the woman's previous character for chastity. Reynolds v. Reynolds, 3 Allen, 307; Scroggins v. Scroggins, 3 Dev. 535; Leavitt v. Leavitt, 13 Mich. 452; Baker v. Baker, 13 Cal. 87. If, however, the woman was not only previously unchaste, but is actually at the time of the marriage pregnant by another man than the husband, and the husband is ignorant of that fact, and believed her to be chaste, he is entitled to have the marriage Lastly, the parties must not only be willing and able to contract, but actually must contract themselves in due form of law, to make it a good civil marriage.(16) Any contract made, per verba de presenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, between persons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiæ. But these verbal contracts are now of no force, to compel a future marriage. (y) Neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, unless by dispensation from the archbishop of Canterbury. It must also be preceded by publication of banns, or by license from the spiritual judge. Many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage. It is held to be also essential to a marriage, that it be performed by a person in orders; (2) though the intervention of a priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini: it being said that Pope Innocent the Third was the first who ordained the celebration of marriage in the church; (a) before *which it was totally a civil con[ *440 ] tract. And, in the times of the grand rebellion, all marriages were performed by the justices of the peace; and these marriages were declared valid, without any fresh solemnization, by statute 12 Car. II, c. 33. But, as the law now stands, we may upon the whole collect, that no marriage by the temporal law is ipso facto void, that is celebrated by a person in orders,—in a parish church or public chapel, or elsewhere, by special dispensation,-in pursuance of banns or a license, between single persons, consenting,-of sound mind,— and of the age of twenty-one years;-or of the age of fourteen in males and twelves in females, with consent of parents or guardians, or without it, in case of widowhood. And no marriage is voidable by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of precontract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecility, subsisting previous to their marriage. (17) II. I am next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. (18) There are two kinds of divorce, the (y) Stat. 26 Geo. II, c. 33. (z) Salk. 119. (a) Moor. 170. declared null for the fraud. Scott v. Shufeldt, 5 Paige, 43; Guilford v. Oxford, 9 Conn. 321; Morris v. Morris, Wright, 630; Baker v Baker, 13 Cal. 87; Reynolds v. Reynolds, 3 Allen, 309. Deception in respect to identity of person, by means of which one is induced to enter into marriage with one person, supposing it to be another, is unquestionably such legal fraud as will avoid the marriage, for in this case the element of consent is entirely wanting, and consequently no valid contract has been effected. The fraud in any case, to be available as a ground for annulling a marriage, must be a fraud upon one of the parties thereto, and such party must complain. A marriage fraudulent as to third persons-for example, creditors-cannot be set aside on that ground. McKinney v. Clarke, 2 Swan, 321. So a marriage may be declared void if contracted in consequence of the use of force, menace or duress. Shelford on Mar. and Div. 213. And see Harford v. Morris, 2 Hagg. Cons. R. 423. But where the only duress consists in legal proceedings, not resorted to maliciously and by abuse of legal process, and the defendant enters into a marriage to avoid imprisonment, and because of being unable to procure bail, the marriage will nevertheless be valid. Jackson v. Winne, 7 Wend. 47. And see Scott v. Shufeldt, 5 Paige, 43. (16) As to the consequences of a failure to observe the formalities required by the marriage act, see the statutes 4 Geo. IV, c. 76; 6 and 7 Wm. IV, c. 85; 19 and 20 Vic. c. 119. (17) [The marriage act extends only to marriages in England. Marriages on elopements to Scotland seem to be valid. Bul. N. P. 113; 1 Ves. and B. 112, 114; 2 Haggard, 54; 1 Roper, 334. Marriages of British subjects in foreign countries are valid if made according to the laws of those countries. 10 East, 282; 2 Marsh. 243; 1 Dowl. and R. Rep. 38. So a marriage in Ireland, performed by a clergyman of the church of England, in a private house, was held valid, although no evidence was given that any license had been granted to the parties. Smith v. Maxwell, Ryan and M. Rep. 80.] The general rule is, that a marriage, valid by the law of the state where it is entered into, is valid everywhere, unless incestuous or bigamous. (18) [The jurisdiction in the United States over the contract of marriage is almost entirely statutory. It has been held, however, that the court of chancery, in virtue of its inherent |