bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger. Whether the cause assigned for the mental condition is adequate or not is immaterial. The difficulty consists not in any uncertainty of the law on the subject, but in its application to the facts of each individual case."1 3 necessary in Fear of some untoward circumstance happening (not necessarily Fear of harm to the party coerced, but to some third person whose interests gredient. are a concern to the party coerced) is a necessary ingredient. Thus, where a young girl was taken away from school, hurried about from place to place abroad, and then married by one of her guardians, the marriage was set aside on the ground of fraud and duress; and it was laid down that if the girl acted under terror at a time when the marriage was solemnized, that was a reason for setting it aside. So, too, in the case of another young girl enticed away from school, and married at Gretna Green in consequence of a lying tale told her of her father's desperate straits, and of his certain ruin unless she married the conspirator who had taken her off, which tale she believed, and in her terror acted on, the marriage was set aside by a Bill introduced into Parliament. The mere undesirableness and even impropriety of the match, though brought about by a considerable degree of pressure, is not a ground for pronouncing the marriage null and void, if evidence of the want of free consent is lacking. A young lady, eighteen years of age, entitled to considerable property (her parents being dead), spending her holidays at the house of one of the executors named in her father's will, whom she considered as her guardian, was induced by his brother (a man of fifty-two years of age), who was residing in the same house, to promise to marry him; a few days afterwards she withdrew that promise, but was importuned again, and prevailed upon to renew it. The marriage was celebrated without the knowledge of any of her friends, upon a false statement made by the husband as to her age and residence in the publication of the banns and in the marriage register. There was no cohabitation or consummation. After a few days she went to a friend's house, and by his advice applied for an Act to annul the marriage. The introducer of the Bill for annulling the marriage refused to move its second reading, as it did not appear in evidence that the marriage was not celebrated with the free consent of the wife, and the bill was lost.* 1 Per Butt, J. in Scott v. Sebright, 12 P. D. 24, based on Ayl. Par. 362; Shelf. Mar. & Div. 214, and Bish. Mar. & Div. § 211. Harford v. Morris, 2 Hag. Con. R. 423. 3 Turner's Nullity Bill, 17 Hans. Parl. Deb., N. S. 1133; Rex v. Wakefield 2 Lew. Cr. Cas. 1; 69 Ann. Reg. 316. Field's Nullity Bill, 2 H. L. Cas. 48. Scott v. Cooper, f. c., The strongest case to be found in the books of relief granted on the ground of duress is quite a recent one; and in it the doctrine has been carried further than in any of the earlier decisions; indeed, considering the facts of the case and the course taken in its conduct (the respondent offering no evidence in contradiction, except on one particular) the decision can hardly be regarded as satisfactory and supplying the leading principles to be followed. The learned President of the Probate and Admiralty Division (Sir C. P. Butt) felt a doubt whether he had all the facts that ought to have been made known to him; but, notwithstanding that doubt, he felt at liberty to act on the facts that were before him.' They disclosed that the petitioner, a young woman twenty-two years of age, and not a person of weak mind or apparently of an impressionable nature, had got herself into money difficulties, and though she may not have desired to marry the respondent at the exact time she did, yet she was not unwilling to get herself out of the pecuniary scrape by marrying him. The learned judge found that she had been reduced by mental and bodily suffering to a state in which she was incapable of offering resistance to coercion and threats, which in her normal condition she would have treated with contempt, and that there never was any such consent on her part as the law requires for the making of a contract of marriage. But putting the threat of personal violence out of the case, it is difficult to see how she was not a free agent at the time of the marriage. In a later case the court, acting on the principle that where a person of full age and sound mind has gone through the ceremony 1 The facts, shortly, were these: The petitioner, a young woman, and entitled to a considerable sum of money both in possession and reversion, became engaged to be married to the respondent. Soon after she became of age she was induced by him to back his bills to the amount of over £3000. The discounters of the bills issued writs and threatened bankruptcy proceedings against her for non-payment of the sums. These threats preyed upon her mind and to some extent affected her health. The respondent suggested that the best and only way out of the difficulty was to marry him; and she went through the form of ceremony at a registrar's office. The marriage was never consummated. On these facts, Butt, J., pronounced a decree of nullity. The most weighty piece of evidence given to show duress or coercion was that some months previous to the marriage the respondent had pointed a pistol at her, and on the day of the marriage threatened to shoot her if she showed she was not acting voluntarily. But there was nothing to connect the pointing of the pistol in the May previous and the threat on the day of the marriage; and as the respondent did not go into the box for the purpose of denying any of the allegations (except one), the court acted on the sole word of the petitioner. The other piece of evidence that went to show that the petitioner did not really give any consent was her flinging the wedding-ring on the floor of the office as soon as it was put on her finger, but that might have been done in a momentary feeling of anger, and it is inconsistent with her statement that any act on her part, showing she was not consenting to what was going on, would render her liable to be shot. If every reluctant bride were afterwards to show that she did not really consent to marry, but was coerced by reason of her own or her parents' affairs being in a desperate condition, and such a complaint were held to be good ground for setting aside the marriage, the judges of the Divorce Court would have very little time for work which was not pronouncing decrees of nullity. of marriage publicly in the presence of witnesses who discovered nothing in her demeanour to suggest constraint, and had complied with the formality of signing her name and answering questions without apparent difficulty or compulsion, held that very clear and cogent evidence must be given before the presumption of consent can be rebutted and the marriage annulled, and declined to set aside the marriage, though the petitioner, a young woman of twenty-five years of age, was of a weak and impressionable character and without much power of resistance to a stronger will, and the respondent had suddenly taken her into church after saying, You must come into the church and marry me, or I will blow my brains out, and you will be responsible." The petitioner went through the marriage ceremony without showing any signs of unwillingness, repeated the responses in an audible tone, and signed the register in a clear, firm hand. After the ceremony the respondent took the petitioner home, and left her at the door of the house. The marriage was never consummated, and the parties never saw each other afterwards, though they corresponded, but always on the footing of cousins (as they were) and not as husband and wife.1 66 If a man by force takes away or detains against her will any Abduction. woman of any age with intent to marry her (and whether he marries her or not is immaterial), he may be indicted for abduction.2 Civil Disabilities.-The other impediments to marriage, or Civil Disgrounds for nullity, are civil, and their operation is to make the abilities. marriage void, and not merely voidable. Suits grounded on civil impediments may be brought by interested parties other than those who have gone through the ceremony of marriage; while a suit grounded on an allegation of impotency or of want of free consent can be brought only by the person who alleges that he or she suffers from the injury done by the non-consummation of the marriage, or that his or her consent has been obtained by some mistake or fraud or coercion. These impediments are (1) Nonage; (2) Insanity; (3) Consanguinity and Affinity, or Relationship within the Prohibited Degrees; (4) Previous Marriage. (1) Nonage.-Nonage, or want of age of the contracting parties, Nonage. operates to render the marriage void, on the twofold ground of a want of consent and the immaturity of the bodies or body of both parties or of one party to the engagement. The English law, Age of matrifollowing the canon law, has fixed the age of matrimonial consent monial consent: fourteen in males; twelve in females. Effect of marriage contracted be at fourteen in the male, and twelve in the female, on the assumption that the sexes are at those respective ages capable of appreciating the responsibilities and performing the duties of marriage. By the common law persons may marry at any age, and if they marry under the age of consent, they are husband and wife till disagreement.' The question whether marriages contracted between persons under the age of consent are void or voidable, is not without tween persons some difficulty, for there are expressions in some of the authori within age. ties which warrant the assumption that at the utmost such are only voidable. Thus Coke says "that when her husband dies, a wife who has attained the age of nine years, shall be admitted to dower of whatsoever her husband be seised, albeit he were but four years old." " If the female child were not a wife, she could not be dowable, though the husband has not reached even the age of seven, when he might be proved to have consented, and understood the meaning of his acts. The explanation of this may be found in what Swinburne says of children who are yet impuberes, that they cannot contract matrimony, or spousals de præsenti, but only de futuro, and that when either party attains the age of puberty, he or she can "resile" from the contract, or confirm it, and need not be married again. Such marriages do not require the decision or sentence of a court to render them invalid and void. Though, strictly speaking, these marriages are inchoate or imperfect, yet they were not treated by the courts as void. It seems however, to be clear law now that as contracts Marriages of per verba de præsenti or de futuro cannot be enforced, marriages of infants under seven must be absolutely void. The law on 1 Com. Dig., Baron and Feme, B. 5 & 6. The following is a table of the marriageable ages of males and females in the principal countries of Europe: infants under seven void, infants be and fourteen, voidable at and twelve this subject may be shortly summed up thus: (a) Where both parties or one, are or is seven years of age, or is under seven Marriages of years, the marriage is absolutely void; (b) Where both parties or tween seven one are or is above seven and under fourteen and twelve respectively, the marriage is imperfect and inchoate, depending for its their election; validity in the first case on the consent of both on reaching the respective marriageable ages; and in the second case on the over fourteen consent of that party who is under the marriageable age on respectively, reaching that period; (c) Where the parties are above fourteen when good. and twelve respectively and under twenty-one, the marriage, if with the consent of parents or guardians, is clearly good, and even without such consent. Where marriage is had without the consent of parents or guardians, the offending party is punished by forfeiting his or her interest in any property which has accrued by force of the marriage.' 2 Amendment In 1885 the Criminal Law Amendment Act was passed, Criminal Law making carnal connection with a girl under thirteen a felony,' Act, 1885and carnal connection with a girl between thirteen and sixteen a misdemeanour." But these provisions do not alter in any way the common law age of consent to marry; and the connection in both cases must be "unlawful," which is the word governing the constitution of the offences; and as that which is permitted by the law is not "unlawful," the connection of the sexes following on a marriage recognised by the law, though the wife may be within the ages specified in the Act, is not unlawful and so criminal. (2) Insanity.-Insanity, or want of reason, is a bar to marriage Insanity a bar to valid maron the ground that as without consent there can be no contract, riage. so where there is no reason there is no power to consent. Mere weakness of understanding is not enough, but some sort of mental derangement evidenced by overt acts and conduct of the imbecile or lunatic. The difficulty in all these cases, as in other branches of the law, is to determine what the true state and capacity of the intellect of the alleged imbecile or lunatic was at the time of the marriage; for the exact time and separation between reason and incapacity may be difficult to be found and marked out in the abstract, though it may not be difficult in most cases to decide upon the result of the circumstances." The courts are inclined to be strict in applying the signs of mental derangement at the inception of this tie, and are not content to take as proof of a The courts strict in applying signs of mental derangement in cases of may 1 4 Geo. IV. c. 76, 8. 23. The consent of proper parties will be discussed lower riage contracts. down in the next chapter, "The Essentials of a Valid Marriage," p. 87. 3 Sect. 4. 4 Sect. 5. 2 48 & 49 Vict. c. 69. |