ized by the legislature, to take an oath abjuring all foreign allegiance and subjection, in all matters, ecclesiastical as well as civil. This was intended, and so it operated, to exclude from the benefits of naturalization Roman Catholics, who acknowledged the spiritual supremacy of the Pope, and it was the result of former fears and prejudices (still alive and active at the commencement of our Revolution) respecting the religion of the Romish church, which European history had taught us to believe was incompatible with perfect national independence, or the freedom and good order of civil society. So extremely strong, and so astonishingly fierce and unrelenting was public prejudice on this subject, in the early part of our colonial history, that we find it declared by law in the beginning of the last century, (a) that every Jesuit and popish priest who should continue in the colony after a given day, should be condemned to perpetual imprisonment; and if he broke prison and escaped, and was retaken, he should be put to death. That law, said Mr. Smith, the historian of the colony as late as the year 1756, (b) was worthy of perpetual duration ! (a) Colony Laws, vol. i. p. 38, Livingston & Smith's edit. (b) Smith's History of New York, p. 111. In the act declaring the rights and privileges of the people of the colony of New York, in 1691, all persons "professing faith in God, by Jesus Christ, his only son," were allowed the free exercise and enjoyment of their religious profession and worship, with the exception of "persons of the Roman religion," who were not to exercise their manner of worship contrary to the laws of England. Bradford's edition of the Laws of New York, 1719. As late as 1753, the legislature of Virginia passed an act extremely severe upon popish recusants, placing them under the most oppressive disabilities. LECTURE XXVI. OF THE LAW CONCERNING MARRIAGE. THE primary and most important of the domestic relations is that of husband and wife. It has its foundation in nature, and is the only lawful relation by which Providence has permitted the continuance of the human race. In every age it has had a propitious influence on the moral improvement and happiness of mankind. It is one of the chief foundations of social order. We may justly place to the credit of the institution of marriage a great share of the blessings which flow from refinement of manners, the education of children, the sense of justice, and the cultivation of the liberal arts. (a) In the examination of this interesting contract, I shall, in the first place, consider how a marriage may be lawfully made; and, secondly, how it may be lawfully dissolved; and, lastly, I shall take a view of the rights and duties which belong to that relation. (1.) All persons who have not the regular use of the understanding, sufficient to deal with discretion in the common * affairs of life, as idiots and lunatics, (except in their 76 lucid intervals,) are incapable of agreeing to any contract, and of course to that of marriage. But though marriage with an idiot or lunatic be absolutely void, and no (a) The great philosophical poet of antiquity, who was, however, most absurd in much of his philosophical theory, but eminently beautiful, tender, and sublime in his poetry, supposes the civilization of mankind to have been the result of marriage and family establishments. Castaque privata veneris connubia læta Cognita sunt, prolemque ex se videre creatam: Lucret. de Rer. Nat. lib. 5. 1 sentence of avoidance be absolutely necessary, (a) yet, as well for the sake of the good order of society, as for the peace of mind of all persons concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction. (b) The existence and extent of mental disease, and how far it may be sufficient, by the darkness and disorder which it brings upon the human faculties, to make void the marriage contract, may sometimes be a perplexing question, extremely distressing to the injured party, and fatal to the peace and happiness of families. (c) ' Whether the relation of husband and wife lawfully exists, never should be left uncertain. Suits to annul a marriage, by reason of idiocy or lunacy, have consequently been often instituted and sustained in the spiritual courts in England. (d) The proper tribunal for the investigation of this question, when it is brought up directly, and for the mere purpose of testing the validity of the contract, will depend upon the local institutions of every state. In those states which have equity tribunals, it belongs to them; (e) and where there are no such tribunals distinct from the supreme courts of common law jurisdiction, 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, (a) 2 Phillimore's R. 19. Browning v. Reane, ibid. 69. (b) Hays v. Watts, 3 Phil. Rep. 44. Sir Wm. Scott, in Pertreis v. Tondear, 1 Hagg. Cons. Rep. 138. Crump v. Morgan, 3 Iredell, N. C. Eq. Rep. 91. (c) There is a very interesting judicial discussion in M'Elroy's case, 6 Watts & Serg. 451, on the subject of lunacy, and the question is, whether the mind is deranged to such an extent as to disqualify the party from conducting himself with personal safety to himself and others, and from managing and disposing his own affairs, and discharging his relative duties. (d) Ash's case, Prec. in Ch. 203. 1 Eq. Cas. Abr. 278, pl. 6. Ex parte Turing, 1 Ves. & Bea. 140. Turner v. Meyers, 1 Hagg. Consist. Rep. 414. Countess of Portsmouth v. Earl of Portsmouth, 1 Hagg. Eccl. Rep. 355. Shelford on Marriage and Divorce, pp. 183–201. (e) Wightman v. Wightman, 4 Johns. Ch. Rep. 343. Crump v. Morgan, 3 Iredell, N. C. Eq. cases, 91. In this and many other points relative to domestic rights, the English ecclesiastical law is considered as part of the common law. 1 The marriage is void, if one of the parties was at the time insane from delirium tremens. Clemente. Mattison, 3 Rich. R. 93. and may be treated as null by every court in which its validity may be incidentally drawn in question. (a) The basis of *77 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 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 (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 conThe 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.) tract. (b) Voet ad Pand. lib. 24, 2, 15. Toullier's Droit Civil Francais, tom. i. Nos. 501, 504, 506, 512. Reeve's Domestic Relations, 201, 207. Pothier's Traite du Contrat de Mariage, Nos. 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. (d) N. Y. Revised Statutes, vol. ii. p. 139, sec. 4. (e) Ibid. 142, sec. 20; 168, sec. 2. 1 The court declared the nullity of a marriage in a case in which the insanity of the woman had been concealed by her friends. Keyes v. Keyes, 2 Foster, 553, and, see True v. Ranney, 1 Foster, 52. Robertson v. Cole, 12 Texas, 356. 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 themselves *78 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. B. in Holt v. Ward Clarencieux, (c) 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. (d) 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 (a) Toullier, ut supra, Nos. 515, 521. Pothier, ut supra, Nos. 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. i. n. b, p. 14. (b) Co. Litt. 33 a, 79 b. The Massachusetts Revised Statutes, of 1836, render marriages contracted when either of the parties is within the age of consent, valid, if followed by voluntary cohabitation. (c) 2 Str. 937. (d) Harg. Co. Litt. lib. 2, note 45. |