arts, though they meet with various degrees of indulgence, according to circumstances, are still inconsistent with truth and sincerity; and may be, and often are, productive of serious mischief: they partake of the nature of fraud, and a marriage grounded on them is, in a sense, a fraudulent contract." Judge Reeve, who was a native of Connecticut, in commenting on this particular statute, not only took a broader and more enlightened view than what the Courts took, but he had the resolution and firmness to stand by his convictions as to what constituted fraud in the marriage contract. In his valuable treatise on Domestic Relations he says: "If nothing more was meant by the term 'fraudulent contract' than imbecility, it is a very awkward expression to convey that precise definite idea which is affixed to the term imbecility. If the Legislature meant to convey the same idea by the term which it ordinarily imports, I apprehend it was a very natural provision. If it be founded in justice that the contracts which represent ordinary matter should be treated as void when obtained by fraudulent practices, why, then, should a contract, the most important that can be entered into, be deemed inviolable, when obtained by such fraudulent practices? A man, by the foulest fraud, gets possession of the property of his neighbour. A contract thus basely obtained is not only void, but, in many instances, the obtaining of it is a felony. The common sense of mankind must revolt at the idea, that, when a man by the same abominable fraud has obtained the person of an amiable woman and her property, the law should protect such contract, and give it the same efficacy as if fairly obtained. The truth is, that a contract which is obtained by fraud is, in point of law, no contract. The fraud blots out of existence whatever semblance of a contract there might have been. A marriage procured without a contract can never be deemed valid. There is no more

1 Benton v. Benton, 1 Day III, 113.

reason for sanctioning a marriage procured by fraud, than one procured by force or violence. The consent is as totally wanting, in view of the law, in the former as in the latter case."1

The State of New York has, however, taken a decided step in the right direction, although the weight of judicial authority is still so evenly balanced that a recent decision on this important question was only decided by the majority of one judge of the five composing the Appellate Division. This case merits particular attention not only on account of the brilliant opinion rendered by Mr. Justice Jenks, but for the progressive stand taken by the Court in bringing the marriage contract within the protection of the rules of law that apply to any ordinary contract; and the fact that this was an original question appears from the remark in the opinion of one of the dissenting judges that "after some study I feel justified in saying that I know of "no well-considered case in this State or in England, or in "fact in any part of this country, which has held that a "marriage will be annulled on the claim of one of the parties that the other had made false representations as "to his or her previous chastity, which induced the complaining party to enter into the status." This case was decided in May of this year, and involved the question whether the false representation made by the wife to her husband before marriage, that she had been the wife of another who was the father of her child when she had been his mistress, was sufficient to sustain an action to annul the marriage on the ground of fraud; and the Court held that it was. Mr. Justice Jenks, who rendered the prevailing opinion of the Court, not only shows a masterly knowledge of the subject, but he discusses it with all the brilliant fervour that characterised his distinguished father, than whom few more eloquent pleaders have ever been heard

66

66

1 Reeve, Domestic Relations, 206.

66

66

66

at the New York Bar. In the course of his opinion he says: "It can be said that in our civilisation a man as"sumes that his proposed wife is chaste, and that without reason he would not pay her the insult of query as to her "virtue. But I can conceive of a case where a man before consenting to a contract of marriage might ask such a question of a woman outright, and rely upon her answer. "Or the case at Bar is an instance where the circumstances might compel some representation in explanation of them. "It is quite true that such a representation is not as to the "essentialia of the marriage contract, for previous chastity " is not a necessary qualification for cohabitation or for the "full discharge of the duties of consortium. But it seems to me that the question is whether such representation may "not be as to a fact material to the consent of the other party to make the contract. Cannot a man regard chastity as an essential qualification of the woman he proposes to marry, and be unwilling to take even an 'Aspasia to his bed and board? . . . . A man is not pre

66

66

66

66

66

sumed to contract for marriage simply upon the basis of physical ability of the woman for cohabitation; for con"sortium implies much more. And if a man consent to "contract to marry a woman who falsely represents herself as chaste, and yet marries her who has been unchaste, "he may thereby be induced to agree to a contract which necessarily requires personal performance by one who is "of a different status than he was led to believe. "I think, then, that such representation can afford ground "for the annulment of a marriage for fraud, because as a "matter of law it can be material upon the question of "consent, which is essential to the contract of marriage. "To reach any other conclusion is to say in effect that "the fact that a woman otherwise acceptable is unchaste "cannot be sufficient motive for a man of average intelligence and prudence to refuse consent to marriage. This

66

"doctrine would put a Cyprian on the marriage plane of a virgin, and make no distinction in respect to virtue as "between a woman who had been a mistress and one who "had been a wife." 1

The subject of physical incapacity, that is to say, impotency, sterility, and barrenness, forms another example of the deficiency of the law relating to marriage. Impotency is that sexual incapacity or deformity which prevents the consummation of the marriage, and still in many jurisdictions if it arises after marriage no relief will be granted, and the Courts have so held in the States of New Hampshire, New York, Vermont, and Kansas, and in England.2

As to sterility and barrenness, these afford no ground for relief although we are told by Lord Penzance that "without sexual intercourse the ends of marriage, the procreation of children, and the pleasures and enjoyments of matrimony, cannot be attained." Ayliffe says the first cause and reason of matrimony ought to be the design of having an offspring (Ayl. Parer. 360): while Dr. Lushington lays down the rule that the law recognises two principal ends of marriage, namely, a lawful indulgence of the passions, and the procreation of children."

As a general rule, the fortune, character and social standing, of one of the parties are not regarded as essential elements of marriage, and consequently fraud or misrepresentation as to these does not affect the marriage contract. So where a man fraudulently induces a woman to marry him by false representations as to his character and property she is helpless and without redress, but once married-once having undertaken that joining together for their mutual lives—she must live in silent despair while her heart burns

1 Domschke v. Domschke, 122 N. Y. Supp. 892–895.

2 Bascomb v. Bascomb, 25 N. H. 267; Norton v. Norton, 2 Aik. (Vt.) 188; Newell v. Newell, 9 Paige (N. Y.) 25; Powell v. Powell, 18 Kan. 371; Deane v. Aveling, 2 Rob. Ec. 279.

3 G. v. G., 2 P. & M. 291.

▲ Deane v. Aveling, 1 Rob. Ec. 298.

3

over the baseness of the man who wantonly deceived her.1 Thus concealment of the fact that the woman had previously been insane is insufficient. Concealment of kleptomania is unavailing; and concealment by a woman that she had a glass eye afforded no ground of relief. Fortunately there is at least one place where a broader and more enlightened view prevails, and that is the State of New York. Under the provision of the Code which provides that marriage can be annulled for force, duress, or fraud, the Courts have held that it was a fraud where a young woman was induced to to marry a notorious criminal by his false representations that he was an industrious man.5

When one considers some of the terrible consequences of marriage under the iron rule of public policy it makes one shudder; for an entire failure of the power to fulfil by one of the parties, as in cases of permanent insanity, does not release the other from the pre-existing obligation. In view of the law it is still as binding as if the parties were as they were when the marriage was entered into. You may not be insane on the day when you are joined in wedlock, but if you happen the following morning to go stark, raving mad, your wife or your husband as the case may be, is compelled by the good dame, public policy, to remain joined to you by fetters of unyielding iron for the rest of your joint lives. It may be said that this is an exceptional and forced example, but if any one will examine the law reports it will be seen that it is a very ordinary instance. Some of the conditions of insane delusion that the rule of public policy

1 Klein v. Wolfsohn, 1 Abb. N. Cas. 134.

2 Cummington v. Belchington, 149 Mass. 223. 8 Lewis v. Lewis, 44 Mim. 124.

4 Kraus v. Kraus, 9 Ohio Dec. 515.

5 Keyes v. Keyes, 6 Misc. N. Y. 355. 6 Randall v. Kreiger, 90 U. S. 147 Lloyd v. Lloyd, 66 Ill. 87; Hamaker v. Hamaker, 18 Ill. 138, 65 Am. Dec. 705; Baker v. Baker, 82 Ind. 146; Wertz v. Wertz, 43 Iowa, 543 ; Powell v. Powell, 18 Kan. 371, 26 Am. Rep. 774; Pile v. Pile 94 Ky. 308; Smith v. Smith, 47 Miss. 211; Forman v. Forman (N. Y. Super. Ct., Spec. T.), 24 N. Y. Supp. 917, 48 Alb. L. J. 78.