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begun, the survivor takes all the benefits of a valid marriage accordingly. The issue in all such cases is, mental condition at the very time of the marriage.2

§ 19. Physical Capacity of Parties to Marriage; Impotence, &c. Fourth. The question of physical capacity involves an investigation of facts even more painful and humiliating than that of mental capacity. Yet as marriage is instituted, in part at least, for the indulgence of natural cravings and with a view to propagate the human family, sound morality demands that the proper means shall not be wanting. Our law demands that, at all events, the sexual desire may be fully gratified. Where impotence exists, therefore, there can be no valid marriage. By this is meant simply that the sexual organization of both parties shall be complete. But mere barrenness or incapacity of conception constitutes no legal incapacity in England and the United States, nor can a physical defect which does not interfere with copulation; nor indeed any disability which is curable, even though not actually cured, unless the party disabled unreasonably refuses to submit to the proper remedies. Such refusal, however, puts the disabled spouse clearly in the wrong. The refusal of carnal intercourse by a healthy spouse is quite a different matter, and gives rise to other inquiries under the head of divorce; 5 nor certainly can physical incapacity arising from some cause subsequent to marriage be referred to the present subject, the question being as to incapacity at the date of marriage.6


11 Bishop, Mar & Div. 5th ed. §§ 136142; Goshen v. Richmond, 4 Allen, 458; Hamaker v. Hamaker, 18 Ill. 137; Williamson v. Williams, 3 Jones, Eq. 446; Wiser v. Lockwood, 42 Vt. 720; Brown v. Westbrook, 27 Ga. 102; 31 N. Y. Supr. 461; 97 N. C. 252. As to bringing such suits, see, further, 1 Bishop, Mar. & Div. §§ 139-142; Schouler, Hus. and Wife, § 21. In Maine such a marriage may be impeached collaterally. 76 Me. 419.

2 Nonnemacher v. Nonnemacher, 159 Penn. St. 634.

and cases cited; 1 Fraser, Dom. Rel. 53; B. v. B., 28 E. L. & Eq. 95; 1 Bl. Com. 440, n., by Chitty and others; Ayl. Parer. 227; Devanbagh v. Devanbagh, 5 Paige, 554; Essex v. Essex, 2 Howell, St. Tr. 786; Briggs v. Morgan, 3 Phillim. 325. For a case where the disability was possibly curable, see G. v. G., L. R. 2 P. & D. 287.

4 H. v. P., L. R. 3 P. & D. 126.

5 See, further, Schouler, Hus. and Wife, § 22; Cowles v. Cowles, 112 Mass. 298.

6 See Morrell v. Morrell, 24 N. Y.

91 Bishop, Mar. & Div. §§ 321-340, Supr. 324.

The reader will find Dr. Lushington's opinion in the leading case of Deane v. Aveling1 sufficiently suggestive as to the extent of malformation which invalidates a marriage on the ground of physical incapacity. It will be observed that this case establishes a principle which later cases do not undermine; namely, that it is capacity for fulfilling the conditions of copulation, and not of procreation, that our own law regards. We may add that, with the rapid progress of medical science during the present century, cases of absolute and incurable impotence are happily diminishing in number. It is reasonable that suit should be required to terminate a marriage on this ground.2

Infancy may be

§ 20. Disqualification of Infancy. - Fifth. an impediment to marriage; but only so far, on principle, as the marrying party, by reason of imperfect mental and physical development, may be brought within the reason of the last two rules. Hence we find that infancy is not a bar to marriage to the same extent as in ordinary contracts; since minors cannot repudiate their choice of husband or wife on reaching majority. Not that marriage calls for less discrimination, for it carries with it consequences far beyond all other contracts, involving property rights of the gravest import; but because public policy must protect the marriage institution against the reckless imprudence of individuals. A certain period is established, called the age of consent, which in England is fixed at fourteen for males and twelve for females, a rule adopted from the Roman law, but which, in this country, varies all the way from fourteen to eighteen for males and twelve to sixteen for females, according to local statutes; differences of climate and physical temperament contributing, doubtless, to make the rule

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crease in the courts of Great Britain. See 1 Bishop, § 331; Schouler, Hus. & Wife, § 23, as to sentences of nullity such cases. The latest English cases interpose no barrier for a mere delay in seeking a decree of nullity for impotence. 10 P. D. 75; 10 App. Cas.


of nature, in this respect, a fluctuating one.1 Marriages without the age of consent are as binding as those of adults; marriages within such age may be avoided by either party on reaching the period fixed by law. And even though one of the parties was of suitable age and the other too young, at the time of marriage, yet the former, it appears, may disaffirm as well as the latter. Herein is observed a departure from that principle of law, that an infant may avoid his contract while the adult remains bound; it is a concession which the law makes in favor of mutuality in the marriage compacts. Marriages celebrated before both parties have reached the age of consent may be disaffirmed in season, either with or without a judicial sentence. When the age of consent is reached, no new ceremony is requisite to complete the marriage at the common law; but election to affirm will then be inferred from circumstances, such as continued intercourse, and even slight acts may suffice to show the intention of the parties. If they then choose to remain husband and wife, they are bound forever. Disaffirmance, on the other hand, may be either with or without a judicial sentence. Marriage within the age of consent seems therefore to be neither strictly void nor strictly voidable, but rather inchoate and imperfect; 5 with, however, a reservation by the ecclesiastical law as to marriage

1 See 2 Kent, Com. 79, notes, show. ing the periods fixed in different States as the age of consent. In the old States the common-law rule generally prevails. In Ohio, Indiana, and various other Western States, the age of consent is raised by various standards to eighteen or even twenty-one for males, an fourteen or even eighteen for females. See Stimson, § 6110.

2 Co. Litt. 79, and Harg. n. 45; 1 East, P. C. 468; 1 Bishop, Mar. & Div. 5th ed. § 149. But it is not certain that a party of competent age may disaffirm equally with the party in competent. People v. Slack, 15 Mich.


8 The complaint should be in the name of the infant, and not of his

guardian. 101 Ind. 317. See 42 Ohio St. 23. Fraudulent representation by the infant as to his age does not estop him from annulling. Eliot v. Eliot, 81 Wis. 295, an extreme case.

41 Bishop, Mar. & Div. § 150.

5 Co. Litt. 33 a; 2 Kent, Com. 78, 79; 1 Bishop, Mar. & Div. 5th ed. §§ 143153, and cases cited; 1 Bl. Com. 436; 1 Fraser, Dom. Rel. 42; Parton v. Hervey, 1 Gray, 119; Fitzpatrick v. Fitzpatrick, 6 Nev. 63. See Shafher v. State, 20 Ohio, 1; 86 Wis. 498; 65 Vt. 663; contra, Goodwin v. Thompson, 2 Iowa, 329; Aymar v. Roff, 3 Johns. Ch. 49, as to the invalidity of such marriage, unless confirmed by cohabitation after reaching the statutory age. Local stat. utes affect this whole subject.

with an infant below seven years, which is treated as altogether null.1

§ 21. Disqualification of Prior Marriage Undissolved; Polygamy; Bigamy.-Sixth, as to the impediment of prior marriage undissolved. It is a well-established rule in civilized countries that marriage between parties, one of whom is bound by an existing marriage tie, is not only void, but subjects the offenders to criminal prosecution. Polygamy, or bigamy as it is often termed, since the common law of England could scarcely conceive of such conjunctions carried beyond a double marriage, is discarded by all Christian communities. It was tolerated, but never sanctioned, in certain territory of the United States. The fundamental doctrine of Christian marriage is that no length of separation can dissolve the union, so long as both parties are actually living, even though lapse of time should raise a reasonable supposition of death. But to render the second marriage void at law, the first should have been valid in all respects. Some of the harsher features of the old law have been softened in our own legislation; and statutes are not uncommon which possibly extend facilities for divorce from the old relation, and in any event protect the offspring of a new marriage contracted erroneously, but in good faith, by parties who had reason to believe a former spouse dead. But such re-marriage in bad faith and without due inquiry finds no favor. So, too, polygamy

in fact is relieved of its penal consequences as concerns parties not guilty of polygamy in intention; but a certain period must elapse usually seven years before death can be presumed from one's mere continuous absence without being heard from. Such was one of the provisions in the English statute passed to make bigamy a civil offence, in the reign of James I.,6 which also exempted from punishment for bigamy persons remarried,

12 Burn, Ec. Law, 434; 1 Bishop, Jur. 174; Patterson v. Gaines, 6 How. Mar. & Div. § 147. (U. S.) 550.

Cro. Eliz. 858; 1 Salk. 121; 2 Kent, Com. 79, and notes; 1 Bishop, Mar. & Div. §§ 296-303, and authorities cited; Shelf. Mar. & Div. 224; Hyde v. Hyde, L. R. 1 P. & D. 130.

8 Bruce v. Burke, 2 Add. Ec. 471; 2 Eng. Ec. 381; Reg. v. Chadwick, 12

4 See 2 N. Y. Rev. Stat. p. 139, §§ 6, 7; Mass. Gen. Sts. c. 107, §§ 4, 30; Stimson, Am. Stat. Law, § 6116.

Gall v. Gall, 114 N. Y. 109.

6 Stat. 1. Jac. I. c. 11, 1604. See Queen v. Lumley, L. R. 1 C. C. 196; Queen v. Curgerwen, L. R. 1 C. C. 1.

during the lifetime of the former spouse, after a divorce, sentence of nullity, or disaffirmance on reaching age of consent. Similar statutes for the punishment of bigamy, with similar reservations, are enacted in this country; but in England and the United States some defects of the original legislation are now cured, and divorce from bed and board would not exempt an offender from prosecution.1 Polygamy, with such exceptions, remains an indictable offence. One of its less obvious evils though not the least important when polygamy is regarded as a legalized institution in a free country is that the patriarchal principle which it introduces is thoroughly hostile to free institutions; and this fact was pointed out many years ago by one of our best writers on political ethics.2

Nor is a new marriage entered into by one spouse in good faith, and in full but erroneous belief that the other spouse is dead, valid even after the lapse of the statutory absence; such parties are not free to marry again, but only relieved of the worst consequences. One who innocently marries another having an undivorced spouse may have the colorable marriage declared void independently of all divorce legislation.1

1 In New York the period of absence is five years; in Ohio, three years; in Massachusetts, seven years, but with a special relaxation of the penalty. Still further, see 2 Kent, Com. 79, and notes. See also Stats. 9 Geo. IV. c. 31; 24 & 25 Vict. c. 100; 1 Bishop, § 297; Stimson, § 6112. Legitimating statutes are to be found in numerous States on behalf of the offspring of innocent marriages of this kind.

1 Bishop, § 301; cases infra. 2 2 Lieber, Pol. Ethics, 9, cited in note to 2 Kent, Com. 81.

As to prosecutions for bigamy, see Kopke v. People, 43 Mich. 41; Reeves ". Reeves, 54 Ill. 332; Queen v. Allen, L. R. 1 C. C. 367, and other cases cited; Schouler, Hus. and Wife, § 25; also Bigamy" in Bishop or Wharton on Criminal Law.


3 Glass v. Glass, 114 Mass. 563, and cases cited; Williamson v. Parisien, 1

Johns. Ch. 389; Miles v. Chilton, 1 Rob-
ertson, 684; Spicer v. Spicer, 16 Abb.
Pr. N. s. 112; 1 Bishop, Mar. & Div.
$ 299; Webster v. Webster, 58 N. H. 3;
124 Penn. St. 646. Such marriage,
under Massachusetts statutes, may be
annulled by a sentence containing (in
order to make children begotten before
the commencement of the suit legiti-
mate) the statement that it was con-
tracted in good faith and with the full
belief of the parties that the absent
spouse was dead. Glass v. Glass, supra.
Randlett v. Rice, 141 Mass. 385, pre-
sented curious facts. Lawful compe-
tence to marry again results, however,
under some local statutes, from such
absence. Strode v. Strode, 3 Bush, 227.
Where proceedings for annulling are
discontinued upon the death of such for-
mer spouse, the parties may marry again.
Sneathen v. Sneathen, 104 Mo. 201.
4 Fuller v. Fuller, 33 Kan. 582.

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