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. Turner. 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

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

one total, the other partial; the one a vinculo matrimonii, the other merely a mensa et thoro. The total divorce, a vinculo matrimonii, must be for some of the canonieal causes of impediment before mentioned, and those, existing. before the marriage, as is always the case in consanguinity; not supervenient, or arising afterwards, as may be the case in affinity or corporal imbecility. (19) For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio: and the parties are therefore separated pro salute animarum: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. The issue of such marriage as is thus entirely dissolved, are bastards. (c) (20)

Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving *it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: [*441] as in the case of intolerable ill temper, or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. (21) And

(c) Co. Litt. 235.

equity powers, has jurisdiction to declare marriages null on the ground of fraud, mistake or defect of mental capacity. See Wightman v. Wightman, 4 Johns. Ch. 343; Burtis v. Burtis, Hopk. 557; Perry v. Perry, 2 Paige, 501; Clark v. Field, 13 Vt. 460; Ferris v. Ferris, 8 Conn. 166.

(19) [The impotency of the husband at the time of the marriage to consummate it, and still continuing, is ground for annulling it, though the husband was ignorant of his constitutional defects. 2 Phil. Ec. C. 10. Corporal imbecility may arise after the marriage, which will not then vacate the marriage, because there was no fraud in the original contract; and one of the ends of marriage, viz.: the legitimate procreation of children, may have been answered; but no kindred by affinity can happen subsequently to the marriage; for as affinity always depends upon the previous marriage of one of the parties so related, if a husband and wife are not so related at the time of the marriage, they can never become so afterwards. ]

The causes for which a total divorce is allowed in the United States are prescribed by statute, and differ in the different states. The consequences mentioned in the text only follow in those cases in which the marriage was void ab initio; in other cases the marriage is regarded as binding upon the parties up to the time of the decree, and as put an end to, for all purposes, at that time. The distinction is between a decree of nullity, which declares a marriage to have been void from the beginning, and a decree of divorce, which dissolves a marriage once valid for the misconduct of one of the parties. The English law has been recently changed so as to permit divorces for causes arising after marriage, and a court is created with jurisdiction over the subject. The husband may have a divorce from the bonds of matrimony for the adultery of the wife, and the wife for incestuous adultery, bigamy, rape or unnatural crime by the husband, or for adultery coupled with two years' desertion. And either party may have a judicial separation from the other for adultery, cruelty, or desertion without cause for two years or upwards. See statute 20 and 21 Vic. c. 85.

(20) [In these divorces the wife, it is said, shall receive all again that she brought with her; because the nullity of the marriage arises through some impediment; and the goods of the wife were given for her advancement in marriage, which now ceaseth; but this is where the goods are not spent; and if the husband give them away during the coverture without any collusion, it shall bind her if she knows her goods are unspent, she may bring an action of detinue for them; but, as to money, &c., which cannot be known, she must sue in the spiritual court. Dyer, 62.

This divorce enables the parties to marry again, and to do all other acts as if they had never been married.]

(21) [But the husband and wife may live separate by agreement between themselves and a trustee; and such agreement is valid and binding, and may be sued upon, if it be not prospective in its nature as for a future separation, to be adopted at the sole pleasure of the wife, the parties being, at the time of making the agreement, living together in a state of amity. See Jee v. Thurlow, 2 Bar, and C. 547; 4 Dowl. and R. 11; 2 East, 283; 6 id. 244; 7 Price, 577; 11 Ves. 529,

If, after this agreement to live separate, they appear to have cohabited, equity will consider the agreement as waived, by such subsequent cohabitation. 1 Dowes' Rep. 235; Moore, 874; 2 Peere W, 82; 1 Fonbl. 106, and notes; 2 Cox Rep. 100: Bunb. 187; 11 Ves. 526, 537. Or if the agreement being in consequence of the wife's elopement, the husband offer to take her again. 1 Vern, 52,

But at law, the wife being guilty of adultery is no bar to a claim made by her trustee under à separation deed, for arrears of annuity, there being no clause that the deed should be void on that account, 2 Bar. and Cres. 547; 4 D. and R. 11, S. C.]

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this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another. (d) The civil law, which is partly of pagan original, allows many causes of absolute divorce; and some of them pretty severe ones: as, if a wife goes to the theater or the public games, without the knowledge and consent of the husband; (e) but among them adultery is the principal, and with reason named the first. (f) But with us in England adultery is only a cause of separation from bed and board: (g) for which the best reason that can be given, is, that if divorces were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties, (h) which is now prohibited by the canons. (i) (22) However, divorces a vinculo matrimonii, for adultery, have of late years been frequently granted by act of parliament. (23)

In case of divorce a mensa et thoro, the law allows alimony to the wife, which is that allowance which is made to a woman for her support out of the husband's estate: being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovers, for which, if he refuses payment, there is, besides the ordinary process of excommunication, a writ at common law de estoveriis habendis, in order to recover it. (j) It is generally proportioned to the rank and quality of *the par[ *442 ] ties. But in case of elopement, and living with an adulterer, the law allows her no alimony. (k)

III. Having thus shewn how marriages may be made or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.

By marriage, the husband and wife are one person in law: (1) that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert, fœmina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: (m) for the grant would be to suppose her separate existence; and to covenant with her would be only to covenant with himself: (24) and

(d) Matt. xix. 9. (e) Nov. 117. (4) Can. 1603, c. 105.

(i) 1 Lev. 6.

(f) Cod. 5, 17, 8.
(k) Cowel, tit. Alimony.

(g) Moor, 683.
(2) Co. Litt. 112.

(h) 2 Mod. 314.
(m) Co. Litt. 12.

(22) Confessions alone ought seldom, if ever, to be sufficient proof of guilt on which to found a decree of divorce, because of the very great danger of collusion. They are receivable, however, in support of other evidence, and their weight will depend very much upon the conclusiveness of the surrounding circumstances in disproving their having been made for the purposes of a divorce. Adultery is now cause for a divorce a vinculo matrimonii, not only in all the states of the American Union, but in England also.

(23) The legislatures of the American states have claimed and exercised the right to grant divorces, and it has generally been conceded that they possessed full authority to do so. Some courts, however, have denied their right, on the ground that the power was in its nature judicial, not legislative, and consequently was not conferred in a grant of legislative power, Bingham v. Miller, 17 Ohio, 445; Clark v. Clark, 10 N. H. 380; Ponder v. Graham, 4 Flor. 23; State v. Fry, 4 Mo. 120; Bryson v. Campbell, 12 id. 498; Bryson v. Bryson, 17 id. 590. And in most of the states now, the legislature is prohibited, by express constitutional provision, to grant

divorces.

As to what will give the courts of a state jurisdiction to grant divorces, see Story Con. L, § 230, a; Bish. Mar. and Div. § 727 et seq.; Ibid. 4th ed. vol. 2, § 155 et seq.; Cooley Const. Lin. 400-402.

(24) [The husband and wife being one person in law, the former cannot, after marriage, by any conveyance at common law, give an estate to the wife, Co. Litt. 112, a, 187, b. Nor the

therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage. (n) (25) A woman indeed may be attorney for her husband; (0) for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death. (p) (26) The husband is bound to provide his wife with necessaries by law, as much as himself; and, if she contracts

wife to the husband. Co. Litt. 187, b. But the husband may grant to the wife, by the intervention of trustees: Co. Litt. 30; and he may surrender a copyhold to her use. A husband cannot covenant or contract with his wife: Co. Litt. 112, a; though he may render his contract binding, if entered into with trustees; for unless by particular custom, as the custom of York, a feme covert is incapable of taking any thing by the gift of her husband: Co. Litt. 3; except by will. Lit. s. 168; 2 Vern. 385; 3 Atk. 72; Fonbl. Eq. vol, 1, 103.

But in equity, gifts between husband and wife are supported: 1 Atk. 270; 2 Ves. 666; 1 Fonb. on Eq. 103; 3 P. Wms. 334; unless in fraud of creditors, &c., or where the gift is of the whole of the husband's estate. 3 Atk. 72; 2 Vés. 498.

But though in equity the wife may take a separate estate from her husband in respect of a gift, and even have a decree against her husband in respect of such estate: 1 Atk. 278; or avail herself of a charge for payment of his debts: Prec. Ch. 26; yet, if she do not demand the produce during his life, and he maintains her, an account of such separate estate shall not be carried back beyond the year. 2 P. Wms. 82, 341; 3 id. 355; 2 Ves. 7, 190, 716; 16 id. 126; 11 id. 225; 1 Fonbl. on Eq. 104; 1 Atk. 269; 1 Eq. Ca, Ab. 140, pl. 7.

By 17 Hen. VIII, the husband may make an estate to his wife; as if he make a feoffment to the use of his wife for life, in tail or in fee, the estate will be executed by the 27 Hen. VIII, and the wife will be seized. Co. Litt. 112. a. So if the husband covenant to stand seized to the use of his wife. Id. a, b. And this where by custom he might devise at common law. Lit. s. 168. So where the husband or wife act en auter droit, the one may make an estate to the other; as if the wife has an authority by will to sell, she may sell to her husband. Co Litt. 112, a.]

The statutes of some of the American states have changed this rule of the common law, by conferring upon married women the power to make contracts in respect to their individual property, and to buy and sell and receive conveyances and transfers in the same manner and with the like effect as if unmarried. See Burdeno v. Amperse, 14 Mich. 91. Independent of these statutes, contracts between husband and wife are enforced in equity where they are just and equitable, clear and distinct in terms, and appear to have been entered into with full knowledge and free will on the part of the wife. West v. Howard, 20 Conn. 581; Livingston v. Livingston, 2 Johns. Ch. 537; Shepard v. Shepard, 7 id. 57; Garlick v. Strong, 3 Paige, 440; Neimcewicz v. Gahn, 3 Paige, 614; Imlay v. Huntington, 20 Conn. 146. And the wife may make gifts to her husband, which will be sustained if satisfactorily established. Imlay v. Huntington, 20 Conn. 146; Penniman v. Perce, 9 Mich. 509. Agreements for separation between husband and wife are not favored in the law, and if they contemplate future separation, and are designed to bring it about, they are absolutely void. Carson v. Murray, 3 Paige, 483. But where the parties actually separate, and, by agreement at the time or afterwards, provision is made for disposing of property, and settling the respective rights of the parties thereto, and the agreement seems not unreasonable in view of their circumstances and of an actual separation, equity will enforce the stipulations in respect to property, and generally give effect to those regarding the control of the persons of children. And although it has been supposed that trustees were necessary to the validity of such agreements: Story Eq. Juris. 1428; the better opinion appears to be otherwise. Reeve's Dom. Rel. 91 and

note.

(25) [At law, if a man make a bond or contract to a woman before marriage, and they afterwards intermarry, the bond or contract is discharged. Cro. Car. 551; 1 Lord Ray. 515.

So if two men make a bond or contract to a woman, or e contra, and one of them marries with her, the bond, &c., is discharged Cro. Car. 551.

Though not if it be intended for the advantage of the wife during the coverture, as that she shall have such rents, &c., at her disposal. Ca. Ch. 21, 117.

But a covenant or contract by a man with a woman is not destroyed by their marriage where the act to be performed is future, to be done after the marriage is determined, as to leave his wife so much after his death. Cro. Car. 376; Salk. 326; 5 T. Rep. 381. If a wife charge her estate with payment of her husband's debts, or apply her separate estate to such purpose, and it does not appear to have been intended by her as gift to her husband, equity will decree the husband's assets to be applied in exoneration of her estate, or in repayment of the money advanced. 2 Vern. 347, 689; 1 P. Wms. 264; 2 Atk. 384; 1 Fonbl. on Eq. 102, 103.]

(26) [A donatio causa mortis by a husband to his wife may also be good, as it is in the nature of a legacy. 1 P. Wms. 441.]