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zation 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," 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, was worthy of perpetual duration!
a Colony Laws, vol. i. p. 38. Livingston & Smith's ed.
b Smith's History of N. Y. p. 111.
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. 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 cultiva. tion of the liberal arts." 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
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.
Caslaque privatæ veneris connubia læta
Cognita sunt, prolemque ex se videre creatam:
Lucret. de Rer. Nat. lib. 6,
dorvals,) are incapable of agreeing to any contract,
of course to that of marriage. But though marriage with an idiot or lunatic, be absolutely void, and no sentence of avoidance be absolutely necessary; 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. 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. 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. 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 no 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. In this state, it has been adjudged to belong to the Court of Chancery, which possesses, exclusively, all the powers of the ecclesiastical courts in England, which can be lawfully exercised over the question under our constitution and laws.c
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. The basis
a 2 Phillimore's Rep. 19. 69.
b Ash's case, Prec. in Ch. 203. 1 Eq. Ca. Abr. 278. pl. 6. Ex parte
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. The common law allowed divorces a vinculo, causa metus, causa impotentiæ, and those were cases of a fraudulent contract. 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, belongs to the ecclesiastical courts in England, and to the Court of Chancery in this state, and was lately sustained in a case of gross fraud. 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 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.c
(2. No persons are capable of binding themselves 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
a Voet ad Pand. lib. 24. 2. 15.
Toullier's Droit Civil Francais, tom. 1. No. 501. 504. 506. 512. Reeve's Domestic Relations 201. 207, Pothier's Traite du Contrat de Mariage, No. 307, 308. 2 Haggard,
b Ferlat v. Gojon, 1 Hopkins, 478.
c Toullier, ibid. No. 515 521.
Pothier, ibid. No. 310. 314.
1 Phillimore, 137. 2 Haggard, 248. 1 Day's Rep. 111. Benton v. Benton,