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for the exercise of equity powers, whatever jurisdiction is exercised over the matrimonial contract, must be in the common law courts.
A marriage procured by force or fraud, is also void, ab initio, and may be treated as null by every court in which its validity may be incidentally drawn in question.a
The basis of the marriage contract is consent, and the ingredient of *fraud or duress is as fatal in this
as in any other contract, for the free assent of the mind to the contract is wanting.b The common law allowed divorces a vinculo, causa metus, causa impotentiæ, and those were cases of a fraudulent contract.c It is equally proper in this case, as in those of idiocy or lunacy, that the fraud or violence should be judicially investigated, in a suit instituted for the very purpose of annulling the marriage; and such a jurisdiction in the case properly belongs to the ecclesiastical courts in England, and to the courts of equity in this country. It is declared in New-York by statute,d that when either party to a marriage shall be incapable of consenting to it, for want of age, or understanding; or incapable, from physical causes, of entering into the marriage state; or when the consent was obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent authority; and the courts of equity are invested with that power.e It is said that error will, in some cases, destroy a marriage, and render
a A marriage would be void if made while one of the parties was in a state of intoxication, such as would incapacitate the party from entering into any other contract. The case of Brown v. Johnston in 1818 is cited by Dr. Irving to this point. Introduction to the study of the civil law p. 102. note.)
b Voet ad Pand. lib. 24. 2. 15. Toullier's Droit Civil Francais, tom. i. No. 501. 504. 506. 512. Reeve's Domestic Relations, 201. 207. Pothier's Traité du Contrat de Marriage, No. 307, 308.2 Haggard's Consist. Rep. 104. 246.
c Bury's case, 5 Co. 98. b. Oughton's Ord. Jud. tit. 193. sec. 17.
the contract void, as if one person be substituted for another. This, however, would be a case of palpable fraud, going to the substance of the contract; and it would be difficult to state a case in which error simply, and without any other ingredient, as to the parties, or one of them, in respect to the other, would vacate the contract. It is well understood that error, and even disingenuous representations, in respect to the qualities of one of the contracting parties, as his condition, rank, fortune, manners, and character, would be insufficient. The law makes no provision for the relief of a blind credulity, however it may have been produced.a
(2.) *No persons are capable of binding them .78 selves in marriage, until they have arrived at the age of consent, which, by the common law of the land, is fixed at fourteen in males, and twelve in females. The law supposes that the parties, at that age, have sufficient discretion for such a contract, and they can then bind themselves irrevocably, and cannot afterwards be permitted to plead even their egregious indiscretion, however distressing the result of it may be. Marriage, before that age, is voidable at the election of either party, on arriving at the age of consent, if either of the parties be under that age when the contract is made.b But this rule of reciprocity, however true in its application to actual marriages, does not apply to other contracts made by a competent party with an infant, nor even to a promise of marriage per verba de futuro with an infant, under the age of discretion. The person of full age is absolutely bound, and the contract is only voidable at the election of the infant. This point was ruled by the K.
Toullier, ut supra, No. 515. 521. Pothier, ut supra, No. 310.314. 1 Phillimore, 137. 2 Haggard's Consist. Rep. 248. Benton v. Benton, 1 Day's Rep. 111. Stair's Institutions, by More, Vol. 1. n. B. p. 14.
b Co. Litt. 33. a. 79. b. The Massachusetts Revised Statutes, of 1835, render marriages, contracted when either of the parties is within the age of consent, valid, if followed by voluntary cohabitation.
B. in Holt v. Ward Clarencieux,a after the question had been argued by civilians, to see what light might be thrown upon it from the civil and canon law. Though this be the rule of the English law, the civilians and canonists are not agreed upon the question; and Swinburne was of opinion that the contract in that case was not binding upon the one party more than upon the other. b
The age of consent, by the English law, was no doubt borrowed from the Roman law, which established the same periods of twelve and fourteen, as the competent age of consent to render the marriage contract binding. Nature has not fixed any precise period; and municipal
laws must operate by fixed and reasonable rules. *79 The same rule was adopted *in France, before
their revolution ;d but by the Napoleon code, the age of consent was raised to eighteen in males, and fifteen in females, though a dispensation from the rule may be granted for good cause. If without the consent of their parents, or of the father, in case of a difference of opinion, the son must be twenty-five years complete, and the daughter twenty-one years complete, to render them competent to contract marriage.
2 2 Str. 937.
d 1 Domat, Prel. b. 24, 25. The incapacity for marriage ceased when the parties had attained the respective ages of fourteen and twelve. But if the children were under paternal anthority, the son could not marry C". less he was thirty years of age, nor the daughter unless she was twentyfive, without the consent of their parents. Ibid.
e Code Civil, No. 144. 148. The New-York Revised Statutes, vol. ii.p. 138, established the ages of consent at seventeen in males, and fourteen in females ; but the provision was so disrelished, that it was repealed within four months thereafter, by the act of 20th April, 1830, which, of course, left the case to stand, as before, upon the rule of the common law. In Ohio, Indiana, and Michigan, the age of consent is raised to eighteen years in males, and fourteen in females. Statutes of Ohio, 1831. Territorial act of Michigan, April, 1832. R. Statutes of Indiana, 1838. In Illinois, to seventeen in males, and fourteen in females. Nlinois R. Laws, 1833.
(3.) No person can marry while the former husband or wife is living. Such second marriage is, by the common law, absolutely null and void ;a and it is probably an indictable offence in most, if not all of the states in the union. In New-York, it is declared by statute, to be an offence punishable by imprisonment in a state prison, in all but certain excepted cases. Those cases are, when the husband or wife, as the case may be, of the party who remarries, remains continually without the United States for five years together; or when one of the married parties shall have absented himself or herself from the other by the space of five successive years, and the one remarrying shall not know the other, who was thus absent, to beliving within that time ;c or when the person remarrying was, at the time of such marriage, divorced by the sentence of a competent court, for some other cause than the adultery of such person; or if the former husband or wife of the party remarrying, had been sentenced to imprisonment for life; or if the former marriage has been duly declared void, or was made within the age of consent.d This is essentially a transcript of the *statute of 1 *80 James I., ch 11, with a reduction of the time of absence, from seven to five years; and though
2 Cro. Eliz. 858. 1 Salk. 121.
• In North Carolina, bigamy was a crime punishable with death. Sta. tutes 1790 and 1800. In Alabama, it is punishable by fine, imprisonment and whipping. Atkin's Dig. 2d ed. p. 107.
e In Ohio, it is three years of continual and wilful absence, next before the second marriage. Statutes of Ohio, 1831. In Massachusetts, it is seven years; and it is further added, that the legal penalty does not apply if one of the parties had been absent for a year or more at the time of the second marriage, and believed to be dead. Mass. Revised Statutes. 1835.
d N. Y. Revised Statutes, vol. ii. p. 139. 687. Ibid. 688, sec. 11. The statute has further provided on this subject, that if one of the married parties absents himself or herself, for five successive years, without being known to the other party to be living during that timo, and the other party marries during the life of the absent person, the marriage is void, only from the time that its nullity shall be pronounced by a court of competent authority. And further, that no pardon granted to any person sentenced to imprisonment for life, shall restore to him or her the rights of a previous marriage. N. Y. Revised Statutes, vol. ii. p. 139, sec. 6, 7.
the penal consequences of a second marriage do not apply in those excepted cases, yet if the former husband or wife be living, though the fact be unknown, and there be no divorce a vinculo duly pronounced, or the first marriage has not been duly annulled, the second marriage is absolutely void, and the party remarrying incurs the misfortune of an unlawful connexion. If there be no statute regulation in the case, the principle of the common law, and not only of England, but generally of the Christian world is, that no length of time or absence, and nothing but death, or the decree of a court confessedly competent to the case, can dissolve the marriage tie.a
By the statute of James I., if one of the married parties continually remained abroad for five years, and was living, even within the knowledge of the other party, or the parties were at the time only under a divorce a mensa et thoro, yet the second marriage, though void in law, would not be within the penalties of the act.
It was still a divorce, and the act did not distinguish between
the two species of divorce.b The crime of bigamy, *81 or of polygamy, as it ought more properly *to be
termed, has been made a capital offence in some, and punished very severely in other parts of Europe ;d but the new civil code of Francee only renders such
* 1 Roll. Abr. 340. pl. 2. 357, pl. 40. 360. F. Williamson v. Parisien, 1 Johns. Ch. Rep. 389. Fenton v. Reed, 4 Johns. Rep. 52.
b 4 Blacks. Com. 163, 164. This point was raised and discussed in Por. ter's case, Cro. Car. 461; and while the court admitted the second mar. riage to be unlawful and void, yet they did not decide whether the statute penalty would attach upon such a case of bigamy. The New York Revised Statutes, vol. ii. p. 687, sec. 9, have corrected this imperfection in the English statute, and made the exception to the application of the penalties of bigamy, in the case of divorce, not to rest on a divorce a mesna et thoro, but to apply only to the dissolution of the former marriage.
Harg. Co. Litt. lib. 2. n. 48. a Barrington on the Statutes, p. 401. • No. 147.