not been deemed necessary; and as to some important provisions it has been held that a disregard of them was punishable, but did not vitiate the marriage; as the want of consent of parents. or guardians where one party is a minor, or an omission of the publication of banns. The essential thing seems to be the declaration of the consent, by both parties, before a person authorized to receive such a declaration by law. (a)1 It is held in Illinois, that where persons cohabit as man and wife, the presumption of law is that they are married, to be valid until overthrown by evidence. (aa) Consent is the essence of this contract, as of all others. It cannot be valid, therefore, if made by those who had not sufficient minds to consent; as by idiots or insane persons. (b) 2 (x) Such 22 Ohio St. 271. But it is said in Vin. Abr. Marriage (D), pl. 3: “If au idiot contracts marriage it shall bind him," and authorities are cited to that effect. And in Shafher v. The State, 20 Ohio, 1 it was held, that marriages by boys under 18 and girls under 14 years of age are invalid unless confirmed by cohabitation subsequent to those ages, and do not subject the parties marrying to the punishment of bigamy upon remarrying. 1 A marriage in jest is no marriage. McClurg v. Terry, 6 C. E. Green, 225. And see Clark v. Field, 13 Vt. 460; Barnes v. Wyethe, 28 Vt. 41. — W. 2 But a valid marriage may be entered into during a lucid interval, Banker v. Banker, 63 N. Y. 409; Smith v. Smith, 47 Miss. 211. And if one who was insane at the time of the marriage ceremony continues cohabitation after recovering his reason, or otherwise elects to affirm the marriage, it is binding. Wightman v. Wightman, 4 Johns. Ch. 343, 345; Cole v. Cole, 5 Sneed, 57; Roblin v. Roblin, 28 Grant, U. C. 439; Bishop, Marriage, Divorce and Separation, §§ 614-626 ; contra, Crump v. Morgan, 3 Ired. Eq. 91. — W. (x) As to the degree of mental unsoundness that incapacitates to marry, and lays the marriage open to attack for undue influence, see Pyott v. Pyott, 191 Ill. 280, 61 N. E. 88, 90 Ill. App. 210; Wendel v. Wendel, 52 N. Y. S. 72; State v. Lowell, 78 Minu. 358, 8 N. W. 877, 79 Am. St. Rep. 358, 376 n. ; Pitcairn v. Pitcairn, 201 Penn. St. 368, 50 Atl. 963; Payne v. Burdette, 84 Mo. App. 332; Buchanan v. Buchanan, 103 Ga. 90, 29 S. E. 608; 1 Bishop on Marriage and Divorce, § 624. The marriage of a person who has been adjudged a lunatic is void absolutely and ab initio; it cannot be ratified by cohabitation. Sims v. Sims, 121 N. C. 297, 28 S. E. 407. But the appointment by a probate court of a guardian for an intemperate person is only prima facie evidence of incompetency to marry. McCleary v. Barcalow, 6 Ohio Cir. Ct. 481. Evidence of mental weakness, and confinement in an asylum soon after the marriage, do not establish incapacity to marry, if the party cared for himself till middle life, and had capacity for business and the conduct of his affairs. Kern v. Kern, 51 N. J. Eq. 574, 26 Atl. 837; see Nonnemacher v. Nonnemacher, 159 Penn. St. 634, 28 Atl. 439; Forman v. Forman, 24 N. Y. S. 917; Lewis v. Lewis, 41 Minn. 124, 46 N. W. 323, L. R. A. 505, and note; Pile v. Pile, 94 Ky. 398. The offspring of the marriage cannot deny its existence collaterally on the ground that one party was a lunatic. State v. Setzer, 97 N. C. 252. Where the marriage of an idiot is made void by statute, as in Maine, it may be attacked collaterally. Unity v. Belgrade, 76 Maine, 419; see Bell v. Bennett, 73 Ga. 784. A divorce decree necessarily recognizes marriages are said to be void at common law, and by the statutes of many States. But it is also held that the marriage is only voidable; and if it be not set aside during the husband's life, the wife becomes entitled at his death to the rights of a widow. (bb) It is certainly better that the marriage should be declared void by a competent tribunal, after a judicial ascertainment of the facts. Courts having full equity powers may make this inquiry and decree. (c) But some of the States have provided for doing this by common-law courts. From the same necessity of consent, a marriage procured by force or fraud is also void; but the force and fraud must be certain and extreme. (d) 1 (x) So if another husband (bb) Wiser v. Lockwood, 42 Vt. 720. But see contra Bell v. Bennett, 73 Ga. 784; Jenkins v. Jenkins, 2 Dana, 103; Powell v. Powell, 18 Kan. 371. (c) Wightman v. Wightman, 4 Johns. Ch. 343. In True v. Ranney, 1 Foster (N. H.) 52, the court assumed the power of declaring a marriage null for imbe * 82 cility of the woman, on the petition of her next friend. So also in a case of insanity of the wife which was kept concealed from her husband by her friends. Keyes v. Keyes, 2 Foster (N. H.), 554. (d) Dalrymple v. Dalrymple, 2 Hagg. Cons. 104; Sullivan v. Sullivan, id. 246. 1 The free consummation of such a marriage, with knowledge of the fraud, prevents relief. Hampstead v. Plaistow, 49 N. H. 84. But a marriage of a man under arrest on a bastardy process to escape prosecution is valid. Williams v. State, 44 Ala. 24; Honnett v. Honnett, 33 Ark. 156; Sickles v. Carson, 11 C. E. Green, 440; State v. Davis, 79 N. C. 603; Johns v. Johns, 44 Tex. 40. See Lyndon v. Lyndon, 69 Ill. 43. If arrest or imprisonment is illegal, however, a marriage induced thereby may be avoided. Bassett v. Bassett, 9 Bush. 698. - W. the validity of the marriage, and affirms the parties' capacity to marry. Walker v. Walker, 150 Ind. 317, 50 N. E. 68. When a marriage is proved, the party objecting to its validity has the burden of proof. Jones v. Gilbert, 135 Ill. 27, 25 N. E. 566. So when the issue is sanity at the time of the marriage. Durham v. Durham, 10 P. D. 80. * (x) See supra, p. 67. In Massachusetts, a consummated marriage will not be avoided for any cause, past or existing, which does not amount to a fraud in the essentials of the marriage relation. Donnelly v. Strong, 175 Mass. 157, 55 N. E. 892. Even the concealed existence of such a disease as syphilis is not a sufficient ground for decreeing nullity of a marriage which has been consummated. Smith v. Smith, 171 Mass. 404, 50 N. E. 933; Vondal v. Vondal, 175 Mass. 383, 56 N. E. 586. But see Ryder v. Ryder, 66 Vt. 158, 28 Atl. 1029; McMahen v. McMahen, 186 Penn. St. 485, 40 Atl. 795; Anon., 49 N. Y. S. 331. The wife's pregnancy at the date of the marriage by another man is matrimonial incapacity in the District of Columbia. Caton v. Caton, 6 Mackey, 309; see Nadra v. Nadra, 79 Mich. 591, 44 N. W. 1046; Comly's Estate, 185 Penn. St. 208, 39 Atl. 890; Moss v. Moss, [1897] P. 263, 77 L. T. 220; State v. Lowell, 78 Minn. 166, 80 N. W. 877, 79 Am. St. Rep. 358, 372; 32 Am. L. Rev. 305, 568, 602; 37 Am. L. Reg. N. s. 59. In New York the husband is held to have a cause of action against the seducer who fraudulently induces him to marry the woman. Kujek v. Goldman, 150 Ñ. Y. 176, 44 N. E. 773. Nullity of marriage will not be decreed because made with a woman who was then a kleptomaniac, but otherwise sane. Lewis v. Lewis, 44 Minn. 124, 46 N. W. 323. Impotence, in the law of divorce, is an incurable incapacity. Payne v. Payne, 46 Minn. 467, 49 N. W. 230; Anon., 89 Ala. 291; Riley v. Riley, 73 Hun, 575; Wendel v. Wendel, 49 N. Y. S. 375; Griffith v. Griffith, 55 Ill. App. 474; Christman v. Christman, 7 Penn. Co. Ct. 595. But an impotent man cannot sue for nullity merely because of his own impotence. A. v. A., L. R. Ir. 403. It has, however, often been held that a marriage may be annulled for fraud, as Bigamy, or, as it offence in all the or wife of either of the parties be living. (e) should be called, polygamy, is an indictable States; but exceptions are made in cases of long absence, with belief of the death of the party, &c. But these exceptions to the criminality of the act leave the question as to the validity of the second marriage as it was before. (f)1 So if the parties are within the prohibited degrees of kindred. (g) The age of consent to marriage, by the rules of the common law, as stated by Coke,(h) is fourteen for the male, and twelve for the female; these rules are borrowed, perhaps, from the Roman law, with which they (e) Riddlesden v. Wogan, Cro. E. 858; Pride v. Earle of Bath, 1 Salk. 120; Martin's Heirs v. Martin, 22 Ala. 86. (f) So at least say the court in Fenton v. Reed, 4 Johns. 53. (g) Sutton v. Warren, 10 Met. 451. In this case it was held, that the intermarriage of a man and his mother's sister, though void by the law of Massachusetts, is not incestuous by the law of nature, and was not void by the law of England before the Statute of 6 Wm. IV. c. 54, though it was voidable by process in the ecclesiastical court. In Bonham v. Badgley, 2 Gilman, 622, it was decided, that a mar riage between a man and the daughter of his sister, although within the Levitical degrees, was not void but only voidable; that for all civil purposes such marriages are valid until sentence of nullity or separation; and that this sentence can be passed only during the lives of both parties. The children, therefore, of such marriage, after the death of either party, no sentence of nullity having been passed before such death, are legitimate; and if the husband die, the wife may have her dower. (h) Co. Lit. 78 b. And see Parton v. Hervey, 1 Gray, 119. 1 The innocent party to a bigamous marriage is at liberty to marry again. Drummond v. Irish, 52 Iowa, 41; Reeves v. Reeves, 54 Ill. 332. Glass v. Glass, 114 Mass. 563, was to the effect that a form of marriage entered into by the parties in good faith, with a full, but erroneous, belief of the woman's actual husband's death, is void, although he has been absent and not known to her to be alive for seven years, and may be decreed void with a provision legitimating the children begotten before the beginning of the suit. - K. where the man represents himself honest, 38 Atl. 953; Meredith v. Meredith, 79 Mo. App. 636; Collins v. Ryan, 49 La. An. 1710, 22 So. 920; Marks v. Crume (Ky.), 29 S. W. Rep. 436; Sherman v. Sherman, 20 N. Y. S. 414; Anderson v. Anderson, 74 Hun, 56. A marriage induced by an arrest for seduction is not made under duress although it afterwards appears that, while there was probable cause, the accused could not have been convicted. Marvin v. Marvin, 52 Ark. 425; Schwartz v. Schwartz, 22 Ill. App. 516; Medrano v. State, 32 Tex. Cr. R. 214; Copeland v. Copeland (Va.), 21 S. E. 241. In England, if the respondent has a former spouse living, the petitioner is of right entitled to a declaration of nullity, and the Court cannot ordinarily require him to make provision for the respondent. Bateman v. Bateman, 78 L. T. 472. Alimony cannot properly be allowed when the marriage is adjudged void ab initio. Park v. Park, 53 N. Y. S. 677. agree; although the Roman law appears to have provided also that parties were marriageable whenever they had arrived at puberty. If the marriage take place when one is of sufficient age as the husband of fifteen-and the other within the age of consent, as the wife of ten, - when the wife reaches twelve, the husband may disagree and annul the marriage. Such, at least, is the rule as laid down by Coke. (i) He adds, that they cannot disagree before the age of consent; but this may be doubted; and the [Public] Statutes of Massachusetts seem to assume that they may disagree within nonage. (ii) The The consent of parents or guardians to the marriage of minors is required by the Roman law, the marriage acts of England, and by the statutes of some of our States; but not by common law, nor in England until the Statute of 26 Geo. II. c. 33. English statute makes the marriage of minors, without such consent, absolutely void. In this country that would de- *83 pend upon the statutes of the several States. Generally, if not universally, the marriage would be held valid, although the person celebrating it might be punishable. (j) It has been held in England, that a marriage, not lawfully celebrated, by reason of the fraud of one of the parties, shall yet be held valid in favor of the innocent party. As in case of a misnomer of the wife by the husband's fraud. (k) So where the husband falsely imposed upon the wife a forged or unauthorized license, and a pretended clergyman. (1) In the statutes of some of the States there are provisions to the same effect. The operation of the lex loci upon marriage and the rights of the married parties, has given rise to some questions which we shall consider when we treat of the Law of Place. (x) (i) Co. Lit. 79 b. (ii) Ch. 149, § 8. () It has been so decided in Massachusetts. Parton v. Hervey, 1 Gray, 119. (k) King v. Wroxton, 4 B. & Ad. 640. It is held in this case that a marriage is not void because the banns were published under false names, unless both parties were privy to such false publication. See also King v. Billingshurst, 3 M. & Sel. 250. In a note to this case are given at length Frankland v. Nicholson, Pougett v. Tomkins, and Mather v. Ney, decided by Sir W. Scott, in all of which the banns were erroneous in the name of one of the parties, and the marriage was declared void ab initio. But in the two first cases there were circumstances of fraud. Heffer v. Heffer, Tree v. Quin, * and Mayhew v. Mayhew, decided by the same judge, are also cited in the same note. In these there was an error of the name, but the marriages were not annulled. From all the cases taken together, it might perhaps be inferred, that a mere error in the name would not make a marriage void (especially if a name acquired by reputation were used), unless there were circumstances of fraud, or other objection. But in Cope v. Burt, 1 Hagg. Cons. 438, Sir W. Scott, seems to insist that it is essentially necessary that the banns should be published in the true names. (1) Dormer v. Williams, 1 Curteis, 870; Lane v. Goodwin, 4 Q. B. 361; Clowes v. Clowes, 3 Curteis, 185. (x) Infra, p. 593, and n. (x). * SECTION V. DIVORCE. Neither the courts of common law nor the equity courts of England, decree divorce. Almost all questions of marriage were, until recently, decided by the spiritual courts, having been originally under the cognizance and jurisdiction of the *84 bishops. The spiritual courts sometimes decreed that a marriage was void ab initio, and sometimes granted a divorce from bed and board, but never a divorce from the bond of marriage. This complete divorce formerly occurred in England only when Parliament, by a private act made for the case, annulled a marriage. But in 1857, by the Statute of 21 Vict. ch. 85, a new court was established, under the name of The Court for Divorce and Matrimonial Causes." To this court is given the power exercised by Parliament of granting divorces, and all the jurisdiction over matrimonial questions formerly vested in the ecclesiastical courts.1 The statute also prescribes the grounds on which divorces may be granted; and it permits the husband to obtain a divorce for the wife's adultery; but the wife can obtain divorce only when the husband's adultery is accompanied with cruelty, or other aggravations which the statute specifies. Very early in the settlement of New England, as we learn from Mather's Magnalia, the question was put to the clergy whether adultery was a sufficient cause for divorce; and they answered that it was. The courts of law thereafter decreed divorce in such cases, and this law and practice became nearly universal through this country. For many years, however, a divorce a vinculo was granted for no other cause than adultery, the law being made to conform to what was regarded as the positive requirement of Scripture. At length, however, the severity of this rule was modified. Divorce a vinculo was permitted for other causes; as desertion, cruelty, sentence to long imprisonment, and the like. The law and practice in this respect differ in the different States, being precisely alike in no two of them. (m)2 And in some, the (m) Under the statute of Pennsylvania, allowing divorce to the wife when the husband has 66 offered such indignities to to render her condition in 1 In 1873 under the Judicature Act the powers of this court were lodged in the "Probate and Divorce Division of the High Court of Justice." For a synopsis of recent English statutes supplementing and amending the English law of divorce, see Bishop on Marriage, Divorce and Separation, § 153, note. W. 2 As to what cruelty will justify a divorce, see Kennedy v. Kennedy, 73 N. Y. 369 ; |