or wrong for which the law to-day affords no redress, and which might easily have been avoided in the first instance had it been known, the injured party too frequently resorts in anger or disgust to the committal of offences that eventually lead to the disruption of the marriage tie in the divorce Courts. The concealment by a woman before marriage of her previous unchaste character; or false representations made by her to induce the man she marries to believe her chaste, are not regarded in the eyes of the law as such fraud as will render the marriage void,1 and yet on what except a false sentimental basis is such doctrine placed? There are probably far more happy marriages to-day between individuals who conceal nothing of their present or past lives from each other-who confide their passions as well as their modesty to the one they love-than among those straight-laced sanctimonious hypocrites who preach the inviolability of marriage under all circumstances. Does the intelligence of the world at large accept, and is it ready to continue to approve as a proper safeguard to the contract of marriage, such a principle as a Court of learned ability laid down as the law of marriage: "Following the "doctrine of the authorities cited I must hold that the representation of the defendant as to her chastity and purity, her pedigree, condition of life and personal qualities, however false, are immaterial.” 2

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Will someone be good enough to lay down what the essentials for entering into and continuing the marriage relation are? If we accept the doctrine which is now unquestioned, that false representation as to chastity, name, family, or fortune of the parties is immaterial, and that once married impotency, insanity, and drunkenness are likewise immaterial, then marriage would appear to resolve itself into genteel social imprisonment, without, however, 1 Hides v. Hides, 65 How. Pr. 17, 45.

2 Ibid., 65 How. Pr. 45.

the privilege that ordinary offenders enjoy-the hope of pardon.1

If chastity, if a name, if a family, and if the fortune of one of the parties are only incidental to marriage, it would prove advantageous to our social relations to make them essential in law by efficient legislation, as they are and always have been in fact, the most essential features of marriage, for without them as one of the strong controlling motives of the marriage contract social life would cease. The more one examines the law on this most interesting subject the more one is led to the conviction that our Western jurisprudence is following Eastern ideas, and that our marriage laws strongly resemble those of China, where marriage is an arrangement with which the parties concerned have nothing to do.2

It may indeed be laid down as settled law, says Bullock, that if a female represents herself as a maiden and it turns out she is a widow, or a divorced woman having the legal capacity to marriage: or a man represents himself as a bachelor when he is a widower, or a divorced man having the legal capacity to marry, the misrepresentation would not go to the foundation of the marriage contract; it would be one of those frauds for which the law affords no relief. This principle has abundant support. If this is the law, and it unquestionably is, then it is time it were changed, and changed quickly, so as to get the law of marriage into some tangible common-sense shape before taking up the question of how it can be dissolved.

That there can be no marriage otherwise than upon a contract express or implied is a principle now too well settled to be questioned, and nothing can therefore be more important as forming the basis of the great social

1 Wakefield v. Mackay, I Hagg. Cons. 394; Ewing v. Wheatley, 2 Hagg. Cons. 175; Sullivan v Sullivan, 2 Hagg. Cons. 238.

2 Matter of Lum Lin Ting, 59 Fed. Rep. 682.

8 Husband and Wife, sect. 25.

condition of status of marriage than the contract on which it is based, and without which the status of husband and wife cannot legally exist. If, as is now well settled, marriage can only be legally preceded by a contract, then this contract should be surrounded with important safeguards and the essential ingredients necessary to other contracts; it should not be a contract in name only and with some of the potent features of a contractual relation, but should express with greater care and with a more generous supervision every rule of justice and equity that regards fair and honest dealing between human beings. If the contract of marriage fails; if it is not a contract in every sense of the word as broad and protective as other contracts, then it opens the road to serious defects in the creation of that status which law writers claim to be the outgrowth of the marriage contract. Take away from the parties their responsibility for deception, misrepresentation, and fraud; omit from the minds of those about to marry that responsibility for good faith and honesty which the law exacts from the humblest individual, and you just so far endanger the fabric of society, because you establish a marriage status based upon contracts that the law in no other relation of life would admit or tolerate. What the status of marriage needs is to be the outcome of an agreement between man and woman that is open, freely entered into, freely discussed, freely protected by all the precautions that people take before entering into any other important engagement in the ordinary transactions of life; free from the taint or suggestion of undue influence and fraud. you raise the standard and dignity of the marriage contract so that it becomes co-equal with other contracts, then you increase the security and stability of what that contract produces in the social status of man and woman as the result of the marriage union. Unfortunately the marriage contract has not been regarded like other contracts. While

If

it is generally assumed that marriage is a contract, it has only in a few exceptional cases been assimilated to other contracts, and although it is the most sacred and important of all human engagements, and should receive at the hands of the law its solemn protection, yet it is a fact almost universally admitted that the essentials entering into the validity of the contract of marriage are so few as to leave it open to the most bare-faced fraud and deception.

While there is abundant authority holding that marriage is based upon a civil contract and that such contract can be vitiated by material fraud, yet judicial interpretation has so far limited and restrained the word "material" as to make it apply to only a few isolated cases. One of the principal questions that has long been disputed has been whether chastity is or is not material as entering into the marriage contract even where the fact has been deliberately misrepresented or withheld; and by years of almost unbroken judicial interpretation Courts have held that such a fact does not reach the essence of the consent of the parties. This precise question affords a vivid illustration of the prejudice Courts have had in applying to the marriage contract the rules applicable to ordinary contracts, so that as the law practically stands to-day marriage can be legally entered into even though the contract preceding the status of marriage is tainted with the most abominable and cruel deception.

Gradually, however, the light of a more intelligent appreciation of what should constitute the basis of all contractseven including that of marriage-has found expression in legislation and in the language of individual judges, until to-day a broader and more enlightened view of the subject bids fair to receive that impartial consideration and treatment which it deserves.

The prevailing doctrine of fraud in marriage is well illustrated in the language of Chief Justice Bigelow of

Massachusetts, who says that no misconception as to the character, fortune, health or temper, however brought about, will support an allegation of fraud;1 while Bishop, following approvingly, says that on the one hand, no yardstick can measure fraud in marriage to determine whether it is long enough or broad enough to work a nullity; and on the other hand, there can be no like test of the quality of the fraud, to determine whether it is of the kind which vitiates the marriage or not.2

The State of Connecticut was, perhaps, the first to approach nearer accomplishing what may be considered the necessary and ultimate end to which all legislation will arrive, not only in the passage of a law which tended to assimilate the marriage contract with other contracts, but by a comprehensive and brilliant analysis of the statute and what its scope and meaning might portend by some of the very Judges who felt constrained, under the dominating prejudice of the old notions surrounding the inviolability of the marriage contract, to still adopt a contrary view, and in this way to render the words "fraudulent contract" meaningless by whittling it down on the theory that the legislature could never have intended what they said. Some of these opinions are worthy of careful consideration, because they contain that first widening of the judicial mind towards a fuller conception of what rules should apply to the contract of marriage. "The word fraudulent contract," said the Court in one case, "in common parlance admits of great latitude of construction, and will include all those deceptive arts to which the sexes too frequently have recourse, with a view to obtain what they consider an advantageous marriage connection; by setting off their persons, character, tempers, circumstances, and connections in a too favourable light; or by professions of ardent affection, which they either may not feel, or not in a degree equal to what they profess. These 1 Reynolds v. Reynolds, 3 Allen, 606. 2 Marriage and Divorce, p. 183.