inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle this Government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed," it is accordingly and finally declared that "any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is inconsistent with the fundamental principles of the Republic."

It will be observed that the main object of this provision is not to declare the right of American citizens to expatriate themselves, but that it seeks to affirm that the citizens of other countries may do so. It is addressed to officers of the United States and not to courts. The courts having established a different rule, the law could scarcely be changed by a mere legislative affirmation of a principle so abstract and unlimited in its terms as that contained in the section referred to.

CHAPTER V.

HUSBAND AND WIFE.

Preliminary remarks as to the "domestic relations."- - By the expression "domestic relations" is meant four great classes of relations, -husband and wife, parent and child, guardian and ward, and master and servant. Out of these spring "relative rights," as distinguished from the mere absolute or strictly personal rights previously considered. One of these relationshusband and wife is derived wholly from contract. Another - master and servant—is at the present time pure contract relation, except in the case of apprentices, which is governed largely by legal or statutory rules. The other two have no contract element. They have in law certain legal or equitable rules attached to them. It is not enough that out of these spring certain natural or moral obligations. Before they can be enforced in a court of justice they must ripen into legal rights. In a broad sense, it may be said that all of these rights have their origin in the family or family relation, and that all still show traces of their origin. Questions arising in respect to them will not necessarily be solved by an appeal to the law of contracts. Each branch of the subject must be studied by itself, and to a considerable extent (particularly in the rules governing marriage) from an historical point of view.

Owing to these complex rights, a wrongful act by a third person may be both a violation of an absolute right and of a relative right. Thus, if a wife be injured by the negligent act of a stranger, an action may be brought for the injury by her, and an independent action for the loss of her services and society by her husband. Similar rules are extended to injuries to a child or servant depriving a parent or a master of their services. Sometimes an injury may be done to the relative right where there is no violation of the absolute right. An instance is that of the seduction of a daughter while in her father's service. While no legal right of the daughter may have been violated, owing to her consent, the father may still sue for loss of service.

The first relation which will be considered is that of husband and wife. As the topic is an extensive one, it will be presented under three divisions, treating of the Creation, the Dissolution, and the Legal Consequences of the relation.

DIVISION I. - The Creation of the Relation of Husband

and Wife.

SECTION I. Capacity to Contract Marriage. It is a general rule of law that capacity to contract is presumed, and one attacking a contract must show incapacity. Cases of incapacity to enter into a marriage contract are divisible into two principal classes: one involves a lack of power to consent; the other assumes the mental power, but denies capacity to make the contract on grounds of public policy.

Instances of the first class are defect in age, idiocy, and insanity. Under this head may also be conveniently stated cases where the mental power is sufficient, but the will is not exercised in the particular instance owing to force or fraud. Cases of the second class are consanguinity, affinity, and prior marriage. Here may also be placed the case of corporeal impotence. These are of general application, except affinity. There may also be local incapacities, such as a prohibition of one divorced for adultery to marry during the life of the other party, or that members of a royal family shall not marry without the consent of the monarch.1 We shall first consider the disabilities arising from lack of power to contract.

(1) Defect in age. The rule of the common law is that the male must be fourteen and the female twelve years of age. If either party be under that age, the marriage may by common law be treated as void by either party when the incapacitated person arrives at the proper age. This rule of the common law is not founded in a true sense of justice, as it enables an adult to marry a minor and then break the contract at will.2 If the ages of the parties be sufficient, consent of parents or guardians is unnecessary at common law. The common law on this subject is the ecclesiastical law. It was in conformity with the spirit of the Romish Church, which abrogated the " paternal authority" of the Roman or civil law, and placed it in the

1 12 Geo. III. c. 11.

2 It is changed by statute in New York, so that only the infant can bring an action for divorce. Nor will any such divorce be granted if, after full age is attained,

the parties freely cohabit as husband and wife. Code Civ. Pro. § 1744.

8 By ch. 24, Laws of 1887, the age of consent in New York to a marriage is eighteen in the case of males and sixteen in the case of females.

hands of the Church. So that the marriage of males of fourteen and of females of twelve was unquestionably valid by the law of England, before the statutes on the subject, with or without the consent of the parents. By statute in New York the marriage of a female under sixteen may be declared void if it took place without the consent of her father or other guardian.2

The court

(2) Mental unsoundness. — In deciding the question whether a person has sufficient mental capacity to contract a marriage, the question for the court is whether the mind of the party was diseased when the contract was entered into. If so, the court will not inquire as to the extent of the derangement. does not, as in many testamentary cases, deal with varieties or degrees of strength of mind. The question is one simply of health or disease of mind. If any contract more than another 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. In other cases it is said that the same degree of mental power which will enable him to make a deed or will is sufficient to enable him to enter into a marriage.5

It is an important question whether the marriage (in case of the insanity of one of the parties) is utterly void, or only voidable at the election of the insane party or of some relative or other person interested to avoid the marriage. Many of the cases say that it is absolutely void.

There are, however, serious objections to this view. One is that the question of invalidity may be raised, not by a direct proceeding, but collaterally, and by any person. This would be highly inconvenient in practice. Respectable authorities hold that it cannot be raised collaterally. Another objection is that this view enables the other party, being of sound mind, to enter into a marriage to subserve some purpose of his own, it may be, sinister, and then, after accomplishing it, to repudiate the contract at will. Nothing can be more repugnant to justice, and even to public decency, than such a view. There are some forcible remarks in a recent English decision upon this point. All the cases agree that a divorce in such a case is

1 Sherwood v. Ray, 1 Moore, P. C. C. 353, 398. In this case the arguments of counsel are most able and instructive. 2 Code of Civ. Pro. § 1742. Hancock v. Peaty, L. R. 1 P. & D. 335; 36 L. J. (Mat. Cases) 57. If the mind be sound at the time of the marriage, it

suffices.
409.

Banker v. Banker, 63 N. Y.

Hancock v. Peaty, supra, p. 341.

5 Atkinson v. Medford, 46 Me. 510. 6 In Hancock v. Peaty, supra, p. 341, it is said, "It may well be that cases might arise in which the husband should

suitable and proper. It is difficult to see how a divorce court would have jurisdiction in a direct proceeding to declare the contract void, when it was already before any such declaration utterly void.

The New York statute referred to in the note has set this matter at rest by providing that an action to annul the marriage can only be maintained in behalf of the idiot or lunatic, or some relative having an interest to avoid the marriage.1

It is a rule of the common (ecclesiastical) law that relatives or others having a pecuniary interest in avoiding a voidable marriage may become plaintiffs in a divorce court in a suit to annul the marriage. The case cited in the note was that of a marriage alleged to be void on account of affinity, but the reasoning extends to other cases of voidable marriages.

(3) Force and fraud. The case of a marriage obtained by force is not now often presented to the courts except in a criminal aspect. Statutes must be consulted upon this subject.3 (a) A marriage obtained by fraud is voidable, and not void. The defrauder will not be allowed to take advantage of his wrongful act. The divorce can only be obtained by the injured party, or by some person interested to avoid the marriage. The fraud here intended does not consist merely in disingenuous representations concerning property or social position; it must be

be shown to have entered into the marriage contract with a full knowledge that the woman he was taking as his wife was insane, and in such a case it might be doubted whether he would not be estopped from coming into this" (divorce court), or any other court, to disaffirm his own act and allege her to be insane whom, with a knowledge of all the facts, he had treated as sane, when it served his purpose to do so."

Code of Civ. Pro. § 1746. "An action to annul a marriage, on the ground that one of the parties thereto was an idiot, may be maintained at any time during the life-time of either party by any relative of the idiot who has an interest to avoid the marriage.

"§ 1747. An action to annul a marriage on the ground that one of the parties thereto was a lunatic, may be maintained at any time during the continuance of the lunacy, or after the death of the lunatic in that condition and during the life of the other party to the marriage by any relative

of the lunatic who has an interest to avoid the marriage. Such an action may also be maintained by the lunatic at any time after restoration to a sound mind; but in that case the marriage shall not be annulled if it appears that the parties freely cohab ited as husband and wife after the lunatic was restored to a sound mind."

2 Sherwood v. Ray, 1 Moore P. C. C. 353. The whole subject of "interest " for this purpose is thoroughly discussed by counsel in this case. The argument of Mr. Austin is particularly noticeable. See also Faremouth v. Watson, 1 Phill. 355.

The English law is found in 24 & 25 Vict. c. 100, § 54, as modified by 27 & 28 Vict. c. 47. For New York law, see Penal Code. § 281.

4 In New York, see Code of Civ. Pro. § 1750, containing substantially the same provision as in the case of insanity.

5 Wakefield v. Mackay, 1 Phill. 134 n.; Klein v. Wolfsohn, 1 Abb. N. C. 134; Clarke v. Clarke, 11 Abb. Pr. 228.

(a) For a late case upon this subject, see Cooper v. Crane,[1891] P. 369.