process. Section 2. The validity of a marriage shall not be
questioned in the trial of a collateral issue, on account of the
insanity or idiocy of either party, but only in a process duly in-



424 THE LAW OF BUSINESS.

stituted in the lifetime of both parties for determining such
validity."

Here is confusion confounded. Section one declares the
marriage of insane or idiotic persons absolutely void ; section
two of the same act declares the marriage good until avoided
in the lifetime of both parties ; in other words voidable.

Wisconsin had a similar statute, which may have been
modified : " When either of the parties to a marriage, for
want of age or understanding, shall be incapable of assenting
thereto, or when the consent of either party shall have been
obtained by force or fraud, and there shall have been no sub-
sequent voluntary cohabitation of the parties, the marriage
shall be void from the time its nullity shall be declared by a
court of competent authority." This statute is more wicked
if possible than the Virginia law. If' it means anything, it
means that people may be married without their consent. We
know that if a ruffian robs a lady on the highway, of her
watch, he thereby acquires no title to it, but by this statute he
may throttle her and hold her by brute force until a confede-
rate magistrate pronounce the marriage ceremony and thus
becomes legally invested with all her personal property. She
must be regarded as his wife until she can bring the scoundrel
into court and prove her want of consent. Can any one con-
ceive of anything more brutal, more revolting to all ideas of
justice, humanity and right? This hideous doctrine origi-
nated, we believe, in New York, which had at one time a
similar statute, and many of the States followed in her wake.
The courts have gone to the extreme limit in the interpreta-
tion of tnese laws to preserve the property rights of third
parties and prevent persons from being held by law as married
when they had never consented to matrimony or intended it.
A Massachusetts judge said: "If it would be hard that the
issue of such marriage should be deemed bastards, it would be



MARRIAGE. 425

as much so that human beings without reason, or their fami-
lies, should be the victims of the artifice of desperate persons,
who might be willing to speculate on their misfortunes."

We quote these statutes to show the confusion that has
existed in the minds of legislators on the subject of marriage;
we say confusion, for it can not be presumed that the full
legal consequences of these acts were foreseen when enacted;
that they intended to place legislation so vicious upon the
statute books.

Void and Voidable. In general "a marriage is termed void
when it is good for no legal purpose, and its invalidity may be
maintained in any proceeding, in any court, between any
parties, whether in the lifetime or after the death of the sup-
posed husband and wife, and whether the question arises di-
rectly or collaterally." Bishop.

"A marriage is voidable when in its constitution there is
an imperfection which can be inquired into only during life-
time of both of the parties, in a proceeding carried on for the
purpose of obtaining a sentence declaring it null. Until set
aside, it is practically valid; when set aside, it is rendered void
from the beginning." -Idem.

Statutes may depart from or alter these general rules of
law as was seen in those quoted, but this should not be so.

A child resulting from a void marriage is a bastard.

A child resulting from a voidable marriage is legitimate,
but if the marriage is set aside by a decree of nullity, the
child becomes illegitimate. This is the universal unwritten
law, but statutes may limit this doctrine.

Elements Constituting Marriage. The elements that con-
stitute a valid marriage are: 1. Mutual Consent. This must
be free from force or fraud. 2. Mental Capacity. This must be
such capacity of mind as is required in the parties to an ordi-
nary contract. 3. Adequate Age. The incapacity of youth



426 THE LAW OF BUSINESS.

does not depend upon the actual number of years attained,
but whether the party has attained that physical maturity
which is enabled to perform the functions of marriage. Mere
infancy in itself is no disqualification. It is possible for a per-
son to have arrived at the age of twenty-one or even older
without having acquired physical capacity. So that this ele-
ment of age is really embodied in the next. 4. Physical Ca-
pacity. Impotent persons, of whatever age, can not contract
perfect matrimony. Impotence is a disqualification to be
proved in each particular case. At common law the age of
puberty, or the marriageable age, is fixed at fourteen in males
and twelve in females. The reason for fixing these years has
been differently stated by various writers. Littleton calls it
the "age of discretion." Ayliffe calls it the "age of persons
which the law has deemed capable of advice and understand-
ing." But Swinburne has much more fully comprehended the
true reason in the following language: "The reason is, that
because at these years the man and the woman are not only
presumed to be of discretion and able to discern betwixt good
and evil, and what is for their profit and disprofit, but also to
have natural and corporal ability to perform the duty of mar-
riage, and in that respect are termed piiberes, as it were plants,
now sending forth buds and flowers, apparent testimonies of
inward sap, and immediate messengers of approaching fruit."
This common law rule of fourteen and twelve years orig-
inated in the warm and luxurious climate of Italy, where sex-
ual development is much more rapid than in colder northern
latitudes, hence the rule has been altered in many States, the
age of consent being made later in life. The only effect is to
substitute the statutory years for the common law years. The
North Carolina statute says "females under the age of four-
teen, and males under the age of sixteen )^ears, shall be inca-
pable of contracting marriage." The Supreme court of the



MARRIAGE. 427

State, Pearson, C. J., delivering the opinion, held that a mar-
riage of persons under these ages, who continued their cohab-
itation after the ages were passed, was valid. The same has
been held in Iowa, which has a statute fixing the ages of con-
sent at eighteen and fourteen.

Another age to be considered is seven. A marriage be-
tween parties either of whom is under seven is absolutely
void. If both parties are over seven and under the age of
consent, or if only one is under the age of consent, they may
contract an imperfect or voidable marriage. A marriage im-
perfect in this respect can not be voided or annulled until the
one objecting to it has arrived at the age of consent, and per-
haps not until both have arrived at that age. There is a case
in the books where a wife aged eleven years objected to the
marriage. The husband was then at the age of consent, i. e.,
over fourteen. He married another woman and by her had a
child. This child was adjudged a bastard, because the former
marriage continued valid; for the first wife when she dissented
from the marriage had not arrived at the age when she could
dissent and the first marriage could not formally be declared
null. A case occurred in New York in which a man married,
in form, an infant girl under twelve years of age. She at once
declared her ignorance of the nature and consequences of the
ceremony, and her dissent. Her next friend brought a bill be-
fore Chancery and the court ordered her to be placed under
the protection of the court as a ward and prohibited the man
from all intercourse or correspondence with her under pain of
contempt. This plan seems just, for it protects the girl during
her inability to give legal assent and leaves her free to affirm
the marriage when she arrives at the age of consent.

5. Freedom. Slaves can not contract a valid marriage.
There is no slavery in this country now, but the consequences
of slave marriages still continue. When slavery existed in



428 THE LAW OF BUSINESS.

New York a statute provided that a marriage between parties
one or both of whom were slaves was valid, and their children
legitimate. If one was free and the other a slave the children
were considered the free and legitimate offspring of the free
one.

Massachusetts had a similar law. In Connecticut if a slave
married a free woman with his master's consent he was eman-
cipated.

Marriage and slavery have always been considered incon-
sistent. "The rights and duties of a husband are incompatible
with a state of slavery," says Reeve.

In the late slave States a more logical condition of the law
prevailed. Slave marriage was a nullity. Emancipation has
generally been held to make a previous slave marriage valid,
provided the parties continued to live and cohabit together
and thus confirmed it, although in Kentucky, whose statutes
require a formal ceremony to make a marriage good, the courts
have held against this doctrine.

6. Formalities. The law in some places requires certain
formalities to be performed. The rule of the courts in deter-
mining whether a marriage performed in disregard of the
statute is void is as follows: A marriage good at common law
is good notwithstanding the existence of any statute on the
subject, unless the statute contains express words of nullity.

If a statute forbids the solemnization of a marriage without
a license, still a marriage so performed is good unless the law
expressly say that it is void. To sum this matter up generally,
nearly all these statutory provisions are directory. They pro-
vide certain forms to be followed by the officers and by the
parties, and frequently impose a penalty upon officers for dis-
regard of their provisions, but the rule of law is that whatever
punishment may be put upon the officer for disregard of the
statute, even if he should be sent to the penitentiary for



MARRIAGE. 429

life, it would not effect the validity of the marriage, unless
the law expressly states that the marriage is void on account
of that particular dereliction of official duty. In Ohio a min-
ister or magistrate is severely fined and punished for perform-
ing the marriage ceremony for parties who have obtained no
license, still if he should do this, taking the risk of punish-
ment, the marriage would be valid.

In addition to these elements which constitute valid mar-
riage there are a few elements the presence of which renders
marriage invalid or voidable: 1. Fraud. 2. Error. 3. Duress.
It is not possible in this brief treatise to go into a full discus-
sion of this intricate subject, but we sum it up in this: the au-
thorities are clear to the general conclusion that fraud, error,
or duress will, when of the required sort and magnitude, ren-
der the marriage void or voidable.

Marriage good where celebrated good everywhere. It is a
rule of law now well established that a marriage good where
celebrated is good everywhere. This rule will never be con-
strued, however, by courts in Christian countries, to uphold
bigamous, polygamous, or incestuous marriages.

A man domiciled in Massachusetts had been divorced for
his adultery, and a statute of the State disqualified him, being
the guilty party, from remarrying. To avoid this he and the
woman whom he desired to marry went to Connecticut and
were married and immediately returned, and the Massachu-
setts courts held the marriage valid.

The same State made a white person and a negro incapable
of marrying and to avoid this statute a white person and negro
went to Rhode Island and were married and returned, and the
Massachusetts courts pronounced this marriage valid. Since
that Massachusetts has enacted a statute which prevents such
decisions, as follows: "When any persons, resident in this
State, shall undertake to contract a marriage contrary to the



43 THE LAW OF BUSINESS.

[provisions of the statute], and shall, in order to evade these
provisions, and with an intention of returning to reside in this
State, go into another State or country, and there have their
marriage solemnized, and shall afterward return and reside
here, such marriage shall be deemed void in this State."

The law of Kentucky renders a nephew and his uncle's
widow incompetent to marry. Such parties domiciled there,
went into Tennessee where no such law prevailed and were
married and returned to Kentucky to live, and were held by
the Kentucky courts to be lawful husband and wife.

On the other hand comes a case from Virginia whose law
makes the marriage of a white person and a negro void with-
out decree of divorce or other legal process. A white person
and a negro to avoid this statute, both being residents of Vir-
ginia, went to the District of Columbia and were married, and
returned to Virginia, living together as man and wife. They
were arrested upon the charge of fornication or illicit cohabi
tation. This case was carried, we believe, to the Court of
Appeals, which affirmed all the decisions of the lower courts
that the marriage was an attempted fraud upon the laws of
Virginia and void, and the parties, of course, guilty.

The law, however, seems to be pretty well established as
stated in the outset of this subject.

Likewise a marriage invalid where celebrated is invalid
everywhere. An exception to this, and the only one worth
mentioning, is the case in which the parties can not marry
conformably to the laws of the place where they are. In this
case if they can marry conformably to the laws of their own
country let them do so and it will be there held valid though
invalid where performed.

Consequences of Invalid Marriages. The consequences of
invalid marriages are distinctly of two kinds: i. Criminal.
2. Civil. The offense of having two wives or two husbands



MARRIAGE. 43 1

at the same time is usually now termed bigamy, although the
old canonical definition of bigamy would make it inapplicable
to such a case. The canonists made a bigamist one who mar-
ried a second time whether the former consort was living or
dead, or one who married a widow. The word bigamy comes
from the Latin bis, twice, and Greek gatnos, marriage. The
better word for this relation according to the original meaning
would be polygamy, which comes from the Greek polugamia,
a plurality of wives or husbands at the same time. Bigamy
and polygamy are both recognized and punished as crimes in
modern criminal law. Polygamy was an offense against the
canonical law of England, but not against the common or
statute law until the reign of James I., when a statute passed
in 1604 made it a felony if committed "within his majesty's
dominions of England and Wales," except where the former
husband or wife remained seven years continuously beyond
sea, or the same time within his majesty's dominions not
known to the other to be living, or was divorced, or there
was a sentence of nullity, or the parties to the former mar-
riage were within the age of consent. This statute has been
the model of all statutes passed on the subject since, both in
England and this country. But a divorce from bed and
board is no longer a protection against the penal consequences
of a second marriage, nor is seven years' absence beyond seas
if the absent party is known to the other to be alive'. In the
States and by the United States statute the punishment for
bigamy or polygamy extends to fine and imprisonment. See
Bigamy under " Law of Crime."

Civil Effects. An existing marriage renders a second one
void. This is true even though some exception in the statute
on polygamy or some principle of the common law exempts
the one entering into it from statutory punishment. As, if a
woman whose husband had been absent and unheard from



432 THE LAW OF BUSINESS.

for seven years, and she believed him dead, and remarried,
and he then returned alive. She would be relieved from pun-
ishment for bigamy but her second marriage would be void.

Who May Take Advantage. This subject affords a re-
markable exception to an old and well established rule of law,
viz., that a party is estopped from alleging his own wrong in
a court of justice. In consequence of this rule a party can
not bring a suit to have his marriage set aside on the ground
that it was contracted through his own fraud, though in law it
is void. But this rule does not apply to polygamous marriages.
It has been decided in several States and seems to be well set-
tled that a person who has entrapped another into a polyga-
mous marriage may, as well as the innocent party, bring a suit
to have its nullity declared.* The most valid reason assigned
by the courts for this decision is that the impediment is a dis-
tinct thing from the fraud, not depending upon it in any way.

If a marriage has been declared void by a decree of nullity
this relieves the parties from the rule of evidence which pro-
tects what passes in confidence between husband and wife.
After this decree either of them can be a witness to what
transpired during their alleged marriage.

A pauper woman can not claim the man's settlement upon
her after their marriage has been declared void.

As between themselves the parties after a decree of nullity
are as though no marriage ceremony or form had ever taken
place. They are single if they were single before, and their
property rights are viewed as though no marriage form had
ever taken place. The woman can not claim any share in his
property, nor alimony or dower; the man can have no interest
in her estate nor curtesy in her lands. She can sue and be



*Glassw. Glass, 114 Mass. 563,566; Ponder vs. Graham, 4 Fla. 23,
Martin vs. Martin, 21 Ala. 86.



MARRIAGE. 433

sued as any feme sole. She can even maintain an action at
law against the man for property which was hers before their
alleged marriage and for her services to him during cohabita-
tion.

Children born to them are, by operation of the decree, nec-
essarily illegitimate, whether the marriage was void or void-
able. The legislatures of our States are now taking a more
merciful view of this case, however, and adopting the civil law
rules which make such children legitimate. Missouri has a
statute that makes the children of a void marriage legitimate.
Similar statutes, though differing in some respects, exist in
Massachusetts, California, Maine, Texas, Maryland and several
over States. In Louisiana, where the civil law of Spain largely
prevails, if a woman is deceived into marrying a man who has
another wife living, and is ignorant of the impediment, she is
entitled, while the deception lasts, to all the rights of a wife,
and the children born during the period are legitimate.

Burge says that such a marriage, "though null and void,
will have the effect of entitling the wife, if she be in good
faith, to enforce the rights of property which would have
been competent to her if the marriage had been valid, and of
rendering the children legitimate." He says too, that this
rule sprang from the canon law and not the civil; was un-
known in England, Ireland and Holland, but was admitted
into France, Spain and Germany, and was finally adopted by
the civil code. It now seems to prevail in Scotland.

It is competent for the legislature of a State to pass a law
forbidding certain persons to marry, and some States have
laws forbidding those for whose fault divorces have been
granted to remarry. A rule of the old Scotch law is that the
guilty party divorced for adultery shall not marry the particeps
criminis, or the one with whom the adultery was committed.

The question whether a remarriage in violation of a statu-
28



434 THE LAW OF BUSINESS.

tory prohibition is valid, voidable or void is not definitely set-
tled. It will depend, however, upon the express terms of the
statute forbidding the remarriage.

Presumption of Marriage. The presumptions of the law
are always favorable to marriage. All reasonable interpreta-
tions of laws and decisions, of personal acts and words will be
made in favor of the validity of a marriage. In Missouri, and
perhaps in some other States, it has been held that where the
parties hold themselves out as husband and wife and cohabit
together as such, a marriage is to be presumed. And if parties
capable of contracting mutually agree together to be husband
and wife and cohabit and assume the relations of husband and
wife, the marriage is valid without any ceremony. It is best
to have witnesses to the assumption of the marriage relation.
The statute of California makes consent, followed by mutual
assumption of marital rights and duties, sufficient to constitute
valid marriage.

Interest of Third Parties. The decree of nullity does not
affect third parties to so great an extent as it does the parties
interested primarily.

Things executed, where the husband is seized in right of
his wife, shall not be avoided by a sentence of nullity, as gift
of goods to the wife, receipt of rent, etc., but in the case of an
inheritance it is different.

If land is conveyed to husband and wife and the heirs of
their two bodies, and afterward, the marriage, being voidable,
is avoided by sentence, the inheritance is turned into a joint
estate for life and the estate is converted into moieties.

If a lease is made to husband and wife during coverture
and a decree of nullity is pronounced after the husband has
sown the land, he is entitled to the emblements and not the
lessor.

If a man is bound to a. feme sole, and afterwards marry her,



MARRIAGE. 435

and then they are divorced by decree of nullity, his obligation
to her is revived.

If the husband sell his wife's lands in fee and then a decree
of nullity is made of their marriage her estate in them is lost,
the sale will stand, because innocent third parties are inter-
ested, but between the parties themselves the decree will de-
stroy the husband's title to his wife's lands.

A man may be answerable for debts contracted by a woman
whom he holds out to be his wife, though she is not such. If
his marriage with the woman is voidable he will be liable for
debts contracted by her before sentence of nullity, but not
after.

If the marriage is absolutely void third persons are not al-
ways protected, especially if the first owner is an infant. An in-
fant girl, in good faith, married a man who had a wife living,
and her father, also ignorant of the impediment, gave her a slave.
The pretended husband afterwards sold the slave with her
consent, while she was yet in her minority and still ignorant
of the deception practiced upon her. Held, that the gift in-
vested the husband with no title, and further that the sale
conveyed no title to the purchaser, as against her.

If a woman has been deceived by a man into a bigamous or
other void marriage with him she may by bill in equity com-
pel him to account to her for all rents and profits received by
him upon her land during the supposed marriage, and return
it to her with its proceeds. At law she can recover pay for
her services during cohabitation. If he is dead she can en-
force her claim against his estate.

Rights and Duties. The duties imposed and rights con-
ferred on the parties by marriage are entirely mutual.

The husband's first and principal duty is the support and
maintenance of his wife according to his position, rank and
fortune. Whatever his circumstances she is entitled to food,



436 THE LAW OF BUSINESS.

clothing, shelter, medical attendance and nursing. She is en-
titled to the necessaries of life and necessaries vary according
to their station and means.

Besides the above mentioned, they include a means of loco-
motion, furniture, protection, etc., such as the husband, con-
sidering his circumstances, ought to furnish for his wife for
her sustenance, health and comfort.

Among the most important of the wife's rights is the irre-
vocable agency to pledge her husband's credit for whatsoever
is necessary to her support unless he provides other means.

If the husband is an infant he is under the same obligation
as an adult to support his wife.

The husband is the head of the family when they are in
cohabitation, and he may take upon himself the providing for
it and exclude his wife from all share in it. He may select the
tradespeople that he will buy from and attend to all details,
and as long as he does this the wife's agency will be in abey-
ance she will not be justified in pledging her husband's credit
for necessaries when he is himself supplying them from some
other source.

What is the rule then to guide shopkeepers and trades-
people in extending credit to a husband upon the wife's order?