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includes legitimate as well as illegitimate children, and halfblood kindred equally with those of the whole blood.1 Its principles have been recognized in the United States.2

But the English law goes even further, and places affinity on the same footing as consanguinity as an impediment. Affinity is the relationship which arises from marriage between a husband and his wife's kindred, and vice versa. It is shown that while the marriage of persons allied by blood produces offspring feeble in body and tending to insanity, that of persons connected by affinity leads to no such result; and further, that consanguinity has been everywhere recog nized as an impediment, but not affinity. The worst that can probably be said of the latter is, that it leads to a confusion of domestic rights and duties. No question has been discussed with more earnestness in both England and America, with less positive result, than one which turns upon this very distinction in a collateral application; namely, whether a man may marry his deceased wife's sister. This question has received a favorable response in Vermont. But in England such marriages are still deemed incestuous, and within the prohibition of God's law; and the legislative change in this respect. in a lineal direction, however, are

11 Bishop, Mar. & Div. 5th ed. §§ 315, 317; Reg. v. Brighton, 1 B. & S. 447.

2 Marriage between an uncle and niece of full blood, or between an aunt and nephew, has been treated as incestuous in various jurisdictions. Har rison v. State, 22 Md. 468; Bowers v. Bowers, 10 Rich. Eq. 551. And there are a few States which forbid the marriage of persons more nearly related than second cousins. See Stimson Am. Stat. Law, § 6111.

3 Blodget v. Brinsmaid, 9 Vt. 27; and see 1 Bishop, Mar. & Div. 5th ed. $314; Paddock v. Wells, 2 Barb. Ch. 331. Collamer, J., in Blodget v. Brinsmaid, makes this ingenious distinction: "The relationship by consanguinity is,

House of Lords resists all Cases of affinity as applied more repugnant to sound

in its nature, incapable of dissolution; but the relationship by affinity ceases with the dissolution of the marriage which produced it. Therefore, though a man is, by affinity, brother to his wife's sister, yet, upon the death of his wife, he may lawfully marry her sister."

4 Hill v. Good, Vaugh. 302; Harris, v. Hicks, 2 Salk. 548; Shelf. Mar. & Div. pp. 172, 178; 2 Kent, Com. 84, note, and authorities cited; Reg. v. Chadwick, 12 Jur. 174; 11 Q. B. 173; Pawson v. Brown, 41 L. T. N. s. 339; Ex parte Naden, L. R. 9 Ch. 670. And see Commonwealth v. Ferryman, 2 Leigh, 717, as to the Virginia statute on this point.

policy, and indeed seem almost to come within the rule of consanguinity.1

Marriages within the forbidden degrees of consanguinity were formerly only voidable in English law; but by modern statutes they have been made null and void. In this country they are generally pronounced by statute void (in some cases void from the time the sentence is pronounced), and the offending parties are liable to imprisonment if aware of the relationship. But with regard to marriages among relatives by affinity, the rule is not so stringent as in England.

§ 17. Disqualification of Civil Condition; Race, Color, Social Rank, Religion. Second, as to the disqualification of civil condition. Race, color, and social rank do not appear to constitute an impediment to marriage at the common law, nor is any such impediment now recognized in England.* But by local statutes in some of the United States, intermarriage has long been discouraged between persons of the negro, Indian, and white races. With the recent extinction of slavery, many of these laws have passed into oblivion, together with such as refused to allow to persons held in bondage, and negroes generally, the rights of husband and wife. The thirteenth article of amendment to the Constitution gives Congress power to enforce the abolition of slavery "by

1 Cf. Table of Degrees, supra; and local statute, and yet not made void. 45 Stimson, § 6111. N. J. Eq. 485.

2 That is to say, not void ab initio. See supra, § 14; Harrison v. State, 22 Md. 468. And see Bowers v. Bowers, 10 Rich. Eq. 551; Parker's Appeal, 8 Wright, 309, where an incestuous marriage is treated as simply voidable.

3 2 Kent, Com. 83, 84, and notes; 1 Bishop, Mar. & Div. 5th ed. §§ 312-320; Regina v. Chadwick, 12 Jur. 174; Sut ton v. Warren, 10 Met. 451; Bonham v. Badgley, 2 Gilm. 622; Wightman v. Wightman, 4 Johns. Ch. ; 343; Butler v. Gastrill, Gilb. Ch. 156; Burgess v. Burgess, 1 Hag. Con. 384; Blackmore v. Brider, 2 Phillim. 359. Some marriages of affinity are prohibited by a

41 Bishop, Mar. & Div. 5th ed. §§ 308311;1 Burge, Col. & For. Laws, 138.

5 See Bailey v. Fiske, 34 Me. 77; State v. Hooper, 5 Ire. 201; State v. Brady, 9 Humph. 74; Barkshire v. State, 7 Ind. 389; 1 Bishop, Mar. & Div. 5th ed. §§ 154-163; Schouler, Hus. & Wife, § 16. One drop less than one fourth negro blood saves from the taint in Virginia. McPherson v. Commonwealth, 28 Gratt. 939. The Missouri statute declaring marriages between white persons and negroes a felony is constitutional, even though it permits the jury to determine from appearances the proportion of negro blood. State v. Jackson, 80 Mo. 175.

appropriate legislation." As to persons formerly slaves, there are now acts of Congress which legitimate their past cohabitation, and enable them to drop the fetters of concubinage. And the manifest tendency of the day is towards removing all legal impediments of rank and condition, leaving individual tastes and social manners to impose the only restrictions of this nature.1 But the race barrier has a strong foundation in human nature, wherever marriage companionship is concerned.2

Third, as

§ 18. Mental Capacity of Parties to a Marriage. to mental capacity. No one can contract a valid marriage unless capable, at the time, of giving an intelligent consent. Hence the marriages of idiots, lunatics, and all others who have not the use of their understanding at the time of the union are now treated as null; though the rule was formerly otherwise, from perhaps too great regard to the sanctity of the institution in the English ecclesiastical courts.3 What degree of insanity will amount to disqualification is not easily determined; so varied are the manifestations of mental disorder at the present day, and so gradually does mere feebleness of intellect shade off into hopeless idiocy. Certain is it that a person may enter into a valid marriage, notwithstanding he has a mental delusion on certain subjects, is eccentric in his habits, or is possessed of a morbid temperament, provided he displays soundness in other respects and can manage his own affairs

1 Act July 25, 1866, c. 240; Act June 6, 1866, c. 106, § 14. And see 15th Amendment U. S. Const.; Stewart v. Munchandler, 2 Bush (Ky.), 278; State v. Harris, 63 N. C. 1. For Southern statutes which now legalize the marriages of former slaves, &c., see Schouler, Hus. and Wife, § 16; also 80 Va. 563; 67 Ga. 260; 69 Ala. 281; 87 N. C. 329; 10 Lea, 652.

As to statutes formerly forbidding marriage between a Roman Catholic and Protestant, see Commonwealth v. Kenney, 120 Mass. 387; Philadelphia v. Williamson, 10 Phila. 176. The statute 19 Geo. II. ch. 13, to this effect, has partial reference to the solemniza

tion of marriage by a Popish priest. These are disabilities imposed by a Protestant parliament, it is worth ob. serving.

2 Marriage between negroes (or Indians) and whites, is still forbidden in many of the United States, those in particular where negroes chiefly dwell; while in Oregon and some other Pacific States similar prohibitions of white and Chinese marriages are found. Stimson, § 6112.

8 See Lord Stowell in Turner v. Meyers, 1 Hag. Con. 414; 1 Bishop, Mar. & Div. 5th ed. § 125; Stimson Am. Stat. Law, § 6112.

with ordinary prudence and skill. Every case stands on its own merits; but the usual test applied in the courts is that of fitness for the general transactions of life; for, it is argued, if a man is incapable of entering into other contracts, neither can he contract marriage.2 This test is sufficiently precise for most purposes. Yet we apprehend the real issue is whether the man is capable of entering understandingly into the relation of marriage. There are two questions, however: first, whether the party understands the marriage contract; second, whether he is fit to perform understandingly the momentous obligations which that contract imposes; and both elements might well enter into the consideration of each case. "If any contract more than another," observes Lord Penzance in a recent English case, "is capable of being invalidated on the ground of the insanity of either of the contracting parties, it should be the contract of marriage, an act by which the parties bind their property and their persons for the rest of their lives." 3



Marriage contracted during a lucid interval is at law deemed valid; but the English statute provides that such marriages are void when a commission of lunacy has once been taken out and remains unrevoked. Similar provisions are to be found in some of our States. On the other hand, marriage contracted by a person habitually sane, during temporary insanity, is unquestionably void, as of course would be any marriage contracted by one at the time permanently insane.7

12 Kent, Com. 76; Browning v. Reane, 2 Phillim. 69; 1 Bishop, Mar. & Div. 5th ed. §§ 124-142; Turner v. Meyers, 1 Hag. Con. 414; 4 Eng. Ec. 440; 1 Bl. Com. 438, 439.

2 Mudway v. Croft, 3 Curt. Ec. 671; Anon. 4 Pick. 32; Cole v. Cole, 5 Sneed, 57; Atkinson v. Medford, 46 Me. 510; Ward v. Dulaney, 23 Miss. 410; Elzey v. Elzey; 1 Houst. 308; McElroy's Case, 6 W. & S. 451. See 1 Bishop, Mar. & Div. § 128; Ex parte Glen, 4 Des. 546.

8 Hancock v. Peaty, L. R. 1 P. & D. 335, 341. The question is whether the person had sufficient mental capacity to make the contract of marriage.

Evidence of his mental condition before and after the marriage is admissible. St. George v. Biddeford, 76 Me. 593; Durham v. Durham, 10 P. D. 80.

4 Shelf. Mar. & Div. 197; 1 Bishop, Mar. & Div. § 130; Banker v. Banker 63 N. Y. 409; Parker r. Parker, 6 Eng. Ec. 165; Smith v. Smith, 47 Miss. 211.

5 Stat. 15 Geo. II. c. 30 (1742), not part of the common law in this country.

Legeyt v. O'Brien, Milward, 325; Parker v. Parker, 6 Eng. Ec. 165.

7 See Lord Penzance in Hancock v. Peaty, L. R. 1 P. & D. 335; Banker v. Banker, 63 N. Y. 409; McAdam v. Walker, 1 Dow, 148; 1 Bishop, Mar. & Div. § 130; Smith v. Smith, 47 Miss.

Upon the principle of temporary insanity, drunkenness incapacitates, if carried to the excess of delirium tremens; though not, it would appear, if the party intoxicated retains sufficient reason to know what he is doing. Drunkenness was formerly held a bad plea, for the common law permitted no one to stultify himself; but the modern rule is more reasonable.2 Some cases require that fraud or unfair advantage should be shown; yet the better opinion is that even this is unnecessary. Deaf and dumb persons were formerly classed as idiots; this notion, however, is exploded. They may now contract marriage by signs. Total blindness or mere deafness, of course, constitutes no incapacity. In general, we may add that the disqualification of insanity is often considered in connection with fraud or undue influence exercised by or on behalf of the other contracting party, over a weak intellect, for the sake of a fortune, a title, or some other worldly advantage. 5

Suits of nullity, brought to ascertain the facts of insanity, are favored by law both in England and America; and modern legislation discountenances all collateral disputes involving questions so painful and perplexing. "Though marriage with an idiot or lunatic be absolutely void, and no sentence of avoidance be absolutely necessary," says Chancellor Kent, "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." In many States this is now the only course to be pursued, such marriages being treated as voidable and not void; and the insane spouse dying before proceedings to dissolve the marriage are

211. Cf. Waymire v. Jetmore, 22 Ohio St. 271.

And as to development of the malady about the time of the ceremony, see Schouler, Hus. & Wife, § 19.

1 Clement v. Mattison, 3 Rich. 93; 1 Bishop, Mar. & Div. 5th ed. § 131; Gore v. Gibson, 13 M. & W. 623; 2 Kent, Com. 451, and authorities cited; Lord Ellenborough, in Pitt v. Smith, 3 Camp. 33; Scott v. Paquet, L. R. 1 P. C. 552.

2 See Gillett v. Gillett, 78 Mich. 184.

3 See 1 Bishop, Mar. & Div. 5th ed. §§ 131, 132, and conflicting cases cited; Elzey v. Elzey, 1 Houst. 308; Steuart v. Robertson, 2 H. L. Sc. 494.

4 1 Bishop, Mar. & Div. 5th ed. § 133, and cases cited; 1 Fraser, Dom. Rel. 48; Dickenson v. Blisset, 1 Dickens, 268; Harrod v. Harrod, 1 Kay & Johns. 4.

5 Fraud as an element of disqualifi cation will be considered post. 62 Kent, Com. 76.

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