234. Having treated of the domicil, it is proper to consider an absence from it, and its effects.

The law watches with care the rights of a man during the whole of his life, and even before his birth, while in ventre sa mère. It is to be regretted that in general it is so loose on this important subject, and that the questions which arise are to be decided frequently by the opinion of the judges, unaided by any statutory provision.

By absence, is sometimes meant that a person is not at the place of his domicil, yet his place of residence being known, or news or information having been received from him, his existence is not uncertain. But in a more confined and more technical sense, absence signifies that the residence of the person, who is not at the place of his domicil, is unknown, and that, for this reason, his existence is doubtful. It is in this last sense that it is here considered.

57

58

.59

When a person has been absent for a long time, unheard from, the law will presume him to be dead: it has been adjudged, that after twenty-five years; twenty years; in another case, sixteen years; fourteen years; twelve years and seven years; the presumption of death arises. It seems to be agreed, that after an absence of seven years, without being heard from, the presumption of death is sufficient to treat the absentee's property as if he were dead; though, like every other presumption, this may be rebutted by showing that

the absentee is alive.61

In consequence of this absence and presumed death, administration will be granted on his estate, and guardians may be appointed to his children; his property will vest in his heirs, subject to be divested by proof that the absentee is alive; and his wife may marry without being guilty of the crime of bigamy or adultery; but if the first husband is in fact living, such a second marriage is utterly void.64

63

60

King v. Paddock, 18 Johns. N. Y. 141.

Loring v. Steinman, 1 Metc. Mass. 204; Burr v. Sim, 4 Whart. Penn. 150; Bradley v. Bradley, Whart. Penn. 173.

Phillipps, Ev. 159. Smith v. Knowlton, 11 N. H. 191.

62 Fenton v. Reed, 4 Johns. N. Y. 52.

Commonwealth v. Thompson, 6 All. Mass. 591.

"Kenley v. Kenley, 2 Yeates, Penn. 207.

CHAPTER IV.

MARRIAGE AND DIVORCE.

235. Definition.

237-255. Qualities required to contract.
237-255. Bars to marriage.

238. Want of competent age.

239. Want of consent.

240. Want of reason.

241. Constraint and duress.
242. Error as to the person.

245. Impotence.

246. Former marriage subsisting.

247. Consanguinity and affinity.
253. Want of consent of parents.

254. Civil death.

255. Adultery.

256-259. Form of marriage.

257. Before whom marriage must take place.

258. The ceremony to be used.

260. The place of marriage.

262. Proof of marriage.

272-274. Void and voidable marriages.

273. Void marriages.

274. Voidable marriages.

275-289. Rights and duties arising from marriage.

276-278. Rights and duties of husband.

277. Obligations of husband.

278. Rights of husband.

279. Obligations of wife.

281. Rights of wife.

282-289. Duties of parents.

283. Legitimate children.

287. Illegitimate children.

290-301. Dissolution of marriage.

291. By death.

292-301. By divorce.

294. Divorce a vinculo-for what cause.

297. Effect of divorce a vinculo.

299. Divorce a mensa et thoro.

235. Marriage owes its institution to the law of nature, and its perfection to the municipal or civil law. It is considered in this country as a civil contract simply, and not, as in some countries, a sacrament.

As an institution established by nature, it consists in the free and voluntary consent of both parties, in the reciprocal faith which they pledge to each other. As a civil contract, it not only requires the free consent of the parties, but, also, that that consent shall be lawful, that is, conformable to the laws of the state where the contract takes place.

236. Viewed in this light, marriage is a contract, made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, unless it shall be lawfully dissolved within that time, in the union which ought to exist between husband and wife, for the purpose of perpetuating their species, to assist each other, and to share a common destiny as to the good or evil which shall happen to them. By the terms free man and free woman, here used are meant, not only that they are free, and not slaves, but also, that they are clear of all bars to a lawful marriage.1 This subject will be examined by taking a rapid view of the qualities required to contract marriage; of the form of marriage; of the place where it is made; of the proof of marriage; of void and voidable marriages; of the effects of a lawful marriage; of the dissolution of marriage.

237. Every person may contract marriage, unless prevented by some legal bar, or some cause which forbids such marriage. These bars to marriage may be arranged into the following classes:

Want of competent age.

Want of consent.

A former marriage subsisting.
Consanguinity or affinity.

Want of consent of parents.

Civil death.

Crime of adultery.

238. The end of marriage is the procreation of children and the propagation of the species. Before arriving at puberty, persons are by nature incapable of contracting a lawful marriage; because they do not possess these qualities. But the age of puberty varies according to climate and circumstances, and a general rule must exist to establish this period. The Roman and canon law fix it, in males, at fourteen; and, in females, at twelve years of age. This rule has been adopted by the common law.

If, therefore, a boy under fourteen, and a girl under twelve years, marry, this marriage is inchoate and imperfect, and may be avoided by them on attaining their respective ages.

A continued cohabitation after both parties have arrived at the age of consent is a confirmation of the marriage.3

239. The consent of the contracting parties, and not cohabitation, form the essence of marriage: Nuptias consensus, non concubitus facit. If there is no consent, when there is only an appearance of it, the contract is null, and may be so declared by a competent tribunal. When, for example, there is a want of reason; constraint or duress; mistake or fraud; or fraud on account of impotency.

240. The want of reason renders the party absolutely incapable of giving his consent to a marriage, and makes the contract invalid.5 But, a man becoming insane afterward, does not destroy the marriage, which was legal when made."

1Shelford, Marr. & D. c. 1, s. 1; Dig. 23. 2. 1; Ayliffe, Parer. 359; Stair, Inst. tit. 4, s. 1.

21 Sharswood, Blackst. Comm. 436; Parton v. Hervey, 1 Gray, Mass. 119. The age of consent has been changed by statute in some of the states; in Iowa it is sixteen and fourteen, Iowa Rev. L. 1860, s. 2515; in Illinois seventeen and fourteen, Ill. St. 1858, vol. 1, p. 579; in Michigan, Ohio, and Indiana, eighteen and fourteen; Act Mich. 1832; Ohio, St. 1831; Ind. Rev. St. 1838; in Minnesota, eighteen and fifteen, Minn. St. 1858, ch. 52. 3 Koonce v. Wallace, 7 Jones, No. C. 194.

Dig. 50, 17, 30; 35, 1, 15; Coke, Litt. 33.

$1 Rolle, Abr. 357; Middleborough v. Rochester, 12 Mass. 363; Clement v. Matison, 3 Rich. So. C. 93.

Dig. 23, 1. 8; 2. 16; 1 Sharswood, Blackst. Comm. 438, 439.

If the party is insane from delirium tremens, or is intoxicated at the time, the marriage is void. The same degree of reason is required to contract a valid marriage as is required in other contracts as deeds or wills.

241 When there has been actual or physical constraint, as where a woman is taken and carried away against her will, and violence has been used and continues at the time of the ceremony, it is evident there was no consent, and therefore, the marriage may be annulled by her.

But the constraint may simply be moral and concealed: the body may be free, but the mind constrained. This constraint may arise from bad treatment or anterior threats, and the fear which is the consequence may determine a woman against her will to declare that she consents. This is a consent only in appearance. If the violence amounts to duress, the marriage will be void; but if the threats are not of this nature, although perhaps the marriage cannot be declared null on that ground, yet evidence of such acts, it is presumed, would be evidence of fraud, and, on this ground, the marriage might be declared void."

Reverential fear, such as that of displeasing a passionate father, is not sufficient to cause the marriage to be annulled. There must be an actual and present fear: Metum præsentem esse oportet, non suspicionem inferendi ejus.11o

10

The constraint, too, must have had the marriage for its object. For example, a powerful and violent neighbor threatens you with death; to appease him, you offer him your daughter in marriage, and she consents to marry him to save your life; the marriage would not be null for want of consent, because the threats had nothing to do with the proposed marriage."

242. When any contract is made, and the subject matter of such contract is mistaken by one of the parties in consequence of the fraud of the other; as if a man professing to sell me paint, shows me an article which has all that appearance, and in consequence of his fraud in concealing its true character, I am deceived, and instead of paint he sells me an article which is not paint, I may avoid the sale.12

So there is no valid consent if, intending to marry Mary, I marry Sarah, through the concealment or the fraud of the latter. It is almost impossible to give an example of a marriage where, in modern times, there has been a physical mistake as to the person, yet a case has been recorded where it occurred.13

243. An error of this kind can scarcely fall on any thing except the moral or social condition of the person. It may be observed generally, that when the error falls only on some advantages of fortune, or some moral qualities of the party, it is no cause for annulling the marriage; as, if believing Mary to be rich and virtuous I married her, and afterward ascertained she was poor and vicious, the marriage would still be good.14

244. A grave question might be raised in a case where a woman, by fraud, had induced a man to marry her in a free state, by making him believe she was free, when in fact she was, at the time of the marriage, a slave in another state. The marriage would probably be attacked on the ground that the slave could not make such a contract, yet, being in a free state, she could not be con

9

True v. Ranney, 1 N. H. 52; Burrett v. Buxton, 2 Aik. Vt. 167.

Atkinson v. Medford, 46 Me. 510.

2 Greenleaf, Ev. 464.

11 Boehmer, Jus Eccl. tit. de Spons. 139.

12 Borrekins v. Bevan, 3 Rawle, Penn. 26; Jennings v. Gratz, 3

13 Gen. xxix. 23.

10 Dig. 4, 2, 9.

Rawle, Penn. 168.

14 See 2 Hagg. Cons. 248; Benton v. Benton, 1 Day, Conn. 111. But if a man marries a woman believing her to be chaste, when in fact she is with child by another, the marriage will be declared void. Reynolds v. Reynolds, 3 All. Mass. 605.

sidered there as a slave," and if the contract is valid where made, it is in general good everywhere.16

245. By impotence is meant the incapacity for copulation or propagating the species. It has been used synonymously with sterility.

Impotence is curable or incurable; when it is curable it is no cause either for declaring the marriage null or for a divorce; when it is incurable it may be good cause for a divorce, but the marriage is not for that cause void ab initio.17

246. A subsisting marriage is a complete bar to a new one.18 The person who would marry a second time pending the first marriage would be guilty of bigamy, and punishable criminally as such, unless he or she proved that the second marriage was contracted in good faith. This takes place when the husband or wife has been absent for seven years without being heard from, as has already been observed.19 But as the marriage cannot be dissolved by mere absence, the second marriage will be declared null and void, ab initio,20 the absence merely purges the felony. The code of Louisiana distinguishes between acknowledged natural children and adulterine children, the latter not being allowed to take as legatees. Where a second bigamous marriage is made in ignorance of the bigamy and in good faith, the issue of such marriage may take as legitimate.21

247. Consanguinity or kindred is the relation subsisting among all the different persons descending from the same stock or common ancestor.22

The series of persons who have descended from a common ancestor, placed one under the other in the order of their birth, is called a line. The line connects successively all the relations by blood to each other.

248. There are two lines, the direct and the collateral. The following paradigm will explain the direct line.

The direct line is divided into two parts; the ascending line, which, commencing at ego the propositus, takes in the father, grandfather, and great grandfather; and the descending line is that, which, counting from the same person, descends to his son, grandson, and great grandson.

249. The collateral line is a series of persons who descend from a common ancestor. It is called collateral, quasi à latere, because it is composed of two direct lines which descend along side of each other, in setting out from the

17 See Bacon, Abr. Marriage, E. 3; 1 Sharswood, Blackst. Comm. 440; Comyn, Dig. Baron and Feme, (C3;) Beck, Med. Jur. 67; Code, 5, 17, 10.

18 Sellers v. Davis, 4 Yerg. Tenn. 503; Jones v. The State, 5 Blackf. Ind. 141; Summerlin v. Livingston, 15 La. Ann. 342.

19 Before, 234.

Kenley v. Kenley, 2 Yeates, Penn. 207; Fenton v. Fenton, 4 Johns. N. Y. 52. "Gaines v. Hennen, 24 How. 553. So also in Texas under the Spanish Law. Lee v. Smith, 18 Tex. 141.

#2 Sharswood, Blackst. Comm. 202.