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nullity of marriage between the Earl of Essex and herself, by reason of his frigidity. And the libel against him was, that for three years after the marriage they did cohabit as man and wife, but before and since the marriage he had a perpetual impotency, at least in respect of her. The earl replied he was frigid quoad illam, but not as to any other woman, for he found that she was not apta to have children. Thereupon the commissioners appointed three ladies and two midwives to inspect her, who returned that she was *apla et habilis; and because the law presumes that where
[ *208 ] there has been three years cohabitation after marriage, without any act of consummation, there must be impotentia cæundi in viro, a divorce was pronounced, with liberty to the parties to marry again. (f)
If a man divorced by reason of perpetual impotence in himself marries again, the issue of the second marriage is legitimate. The wife of one Bury was divorced from him on account of frigidity, it appearing that for three years after the marriage she remained virgo intacta on account of the husband's impotency, and that he was inaptus ad generandum. The husband afterwards married again, and his wife had children. The question was whether they were legitimate or not? And it was decided that they were ; for by the divorce causâ frigiditatis the marriage was dissolved a vinculo matrimonii, and consequently each of them might marry again ; and admitting the second marriage to be voidable, yet it continued a marriage until it was dissolved, and consequently the issue of such marriage was legitimate, if no divorce was obtained during the lifetime of the parties. (g)
When Suit cannot be entertained.]-A person is not entitled to a divorce who knowingly contracts marriage with an impotent per son.(h) So, by the canon law, if a man contract, knowing the defect of the woman, he is not to come for a remedy.(i) So if a party, knowing his own defect, contracted a marriage, he could not be heard. The assertion of the defect by the man himself, raises the presumption that he contracted the marriage scienter, that he cohabited scienter, and defrauded the woman.(k)
By the canon law a man may sue for a nullity of marriage by reason of his own impotence. If a man alleges his frigidity, and the wife alleges the same, and can prove the same *by seven compurgators,
[ *209 ] they may be separated; such a mode of proof is not, however, adopted in England.(1) Sanchez considered it as a question whether the impotent party may apply for a divorce; and he holds he may under circumstances, but limits it by certain restrictions.(m) It seems that this doctrine applies only to frigidity, which may be unknown before trial, and not to a case where the bodily defect is apparent.
(f) 2 Howell's St. Tr. 786. 804; 2 Leo. (g) Bury's case, Dyer, 179, a; 5 Rep. 172, 173.
98, b. It is said, that the countess, under a pre- (h) Ayliffe's Parer. 230; Brower. X. 4, tence of modesty, having obtained leave to 15, 4. put on a veil when she was inspected, iniro. (i) 3 Phill. R. 161. duced a young woman of her age and stature (k) 3 Phill. R. 162, 163. dressed in her clothes, to be searched in her (1) 3 Phill. R. 162. place, and deceived the jury of matrons and (m) Cæterum quando impotentia se tenet the court.
ex parte viri, res est certa posse ipsum pro2 Howell's St. Tr. 803, n.; Salm. St. Tr. clamare adversus matrimonium. Quia sua 61.
interest ipsum dissolvi, ne compellatur ad onera matrimonii irriti sustinenda atque id Similiter duabus matronis deponentibus femconstat ubi vir proclamavit, propriam frigid. inam esse virginem, potius creditur quam itatem allegans et auditus est. Temperan- æqualibus eam esse corruptam testantibus. dum est ut liceat viro proclamare suam im. Quia illæ habent naturæ ac juris præsumppotentiam allegando quando illius ignarus tionem pro se; virginitas enim præsumitur fuit tempore matrimonii. Cum enim dolus cum sit qualitas naturalis. Quando res nemini patrocinari debeat, minimè audietur, dubia esset, non existentibus verisimilibus si illam tunc norit.-Sanchez de Matrimonio, conjecturis corruptionis feminæ ; nam his lib. 7, Disp. 114.
According to Ayliffe,(n) this doctrine has been imported from the canon law into the law of this country; he states, " T'he husband may pray a separation of matrimony on account of a matrimonial impediment, though such impediment proceeds and arises from himself, as from his own impotency and frigidity."(0)
It seems that a man will not be allowed to plead his own natural impotency as a ground for a sentence of nullity of mariage. After the most diligent search no instance was found of a party bringing a suit to set aside a marriage on account of his own incapacity; the party complaining has always been the injured party, and generally the suit has been brought by the wife. Sir J. Nicholl said, " It is a strong and almost a conclusive presumption against such a proceeding, that no suit appeared ever to have been brought by any but the injured party, although he did not mean to lay it down that in no possible case, or under no circumstances, a woman might be allowed to bring such a suit.(p) In such a case, however, the party is bound to a very strict proof of all necessary facts.(9)
*In Norton v. Seton the suit was instituted by the hus( 210 ]
band against his wife to have his marriage declared void. The libel pleaded that the marriage was solemnized by license in 1812, the husband being a bachelor, then 45, and the woman a spinster, 23 years of age. They had cohabited together for seven years; that they were both in health, but that the husband was incapable from bodily defect to consummate the marriage; that his defect was incurable from art, as would appear upon inspection by medical persons. The court dismissed the suit on the ground of its novelty-the age of the man-it being incredible that he could have lived 45 years in ignorance of his defect, which he alleged was apparent on inspection, and such ignorance was incapable of direct proof; the lapse of seven years before the suit was brought; the marriage was by license obtained on the man's affidavit, in which he swore that he knew of no impediment to the marriage. Another objection was, that the proof of the case must rest solely on the evidence of medical men, as no collateral proof could be obtained either by the answers of the wife or by the inspection of her person; the wife being pregnant she could not be called upon to confess that her marriage was not consummated, for that would criminate herself; that the court was called upon to bastardize the issue after a cohabitation of seven years and frequent endeavours to consummate; that the party contracted with a knowledge of his own defect, and therefore could not be allowed to take advantage of his own wrong.(r)
existentibus, ut si probelur juvenum dor. (n) 3 Phill. R. 162.
miisse cum ca, plus creditur affirmantibus (6) Parer. 230.
eam esse corruptam. Ex quo infero in causa (p) Norton v. Seton, 3 Phill. R. 163. separationis matrimonii rationc impotentiæ (9) Cæteris paribus, magis est habenda viri, quando de eâ non constat, magis habetur fides testificantibus virum esse potentein, fides cæteris paribus matronis asserentibus quam dicentibus frigidum; ut si æquales feminam csse corruptain. Quod cum dor. numero et peritia sint testes : quod illi veri- mierit unà cum viro sit vehemens corruption is similiora ac naturæ aptiora testentur: cum conjectura."-Sanchez, lib. 7. Disp. 113. potentia coeundi sit qualitas naturalis, eaque No. 11. presumalur, dum frigiditas non constat.
Delay in instituting a suit of this kind, particularly on the part of the husband, is a strong fact against him. In one case a delay of sixteen months, on the part of the husband, in bringing a suit, on account of actual malconformation, was thought an unfavourable circumstance.(s) In another case *of a suit of nullity of marriage, instituted by the husband against the wife, by [ *211, ] reason of impotence, by malconformation in her person, after a cohabitation of seven years, Lord Stowell said, “ The length of time which has elapsed, is, of itself, almost a bar; for he did not remember any instance in which such a suit had been allowed to be instituted after such an interval; that a period of seven years should be allowed to elapse, in a case where even a very short cohabitation would have sufficed for the discovery, was not allowed by any principle of law with which he was acquainted. In this case there was a strong presumption against the husband, on account of his not having denied the validity of the marriage in former proceedings against him for divorce by reason of adultery.(1) Lapse of time may operate as an absolute bar to such a suit, not brought by the party injured.(u) The modesty of the female sex may account for their forbearance in such a case.(2)
The age of the parties is often material, since the ecclesiastical court in different cases has declined to proceed in suits of this kind, where the parties were at an advanced period of life. In cases of this kind, different considerations have been applied to persons of advanced age, and to those of an earlier period of life, with great reason and propriety. In the case of young persons the injury is greater, in age more advanced the mode of inquiry is less conclusive, and probably more abhorrent to the feelings of the party who is exposed to it.(y)
The court will not interfere in the case of a supervening defect, to which the most vigorous persons are often subject in the decline of life.(3)
In Briggs v. Morgan,(a) the suit was brought by the “ man by reason of incurable natural malconformation and bodily defects in the person of the woman.” The parties were married *in 1818, the wife being then, as it appeared, a widow of fifty
[ *212 ] years of age, the man of forty-two. The woman had lived with a former husband eighteen years, who had left her his whole property at his death, which was thought to be a favourable presumption for the woman. Under the circumstances of the case the court would not subject the woman to the proofs, by which the alleged defect could be satisfactorily established. First, on account of her advanced age at the time of the marriage. The age of the man was not much the subject of observation, except that it was beyond the octavum lustrum, at which an experienced writer describes the passions to be in a state of greater composure: at any rate it was thought an age at which disappointment on that account may be presumed less grievous, especially in the case of a marriage to a woman older than himself. Another circumstance of insincerity in the complaint was the delay, and the court gave credit to the proofs of an effective cohabitation of the wife with her former husband, so that it could only be the case of a supervening defect, which was not a subject of legal relief.
(r) Norton v. Selon, 3 Phill. R. 147. 164. (y) Briggs v. Morgan, 2 Hagg. Cons. R. (8) Briggs v. Morgan, 2 Hagg. Cons. R. 328, 330; 3 Phill. R. 331. 330.
(z) Briggs v. Morgan, 3 Phill. R. 332; 2 (1) Guest v. Guest, 2 Hagg. Cons. R. 321. Hagg. Cons. R. 331 ; Brown v. Brown, 1 323.
Hagg. Eccl. R. 524. (u) Ball v. Ball, Deleg. 1790; cited 3 (a) 2 Hagg. Cons. R. 324; 3 Phill. R. Phill. 155. 159.
325. (1) Norton v. Seton, 3 Phill. R. 159.
In a cause of divorce by reason of cruelty and adultery, promoted by the wife, the marriage took place in November, 1825, and on the 12th October, 1826, the parties separated. The husband alleged in answer that although a marriage was in fact solemnized between the parties, they never cohabited as man and wise, “ by reason of some natural impediment and incurable malconformation and bodily defects, which cannot be removed by the art or help of physicians and surgeons.” The prayer of the allegation was, “ that the marriage might be pronounced to have been void from the beginning."
Sir J. Nicholl said, “the woman was past the age of child-bearing at the time of the marriage; the primary and most legitimate object of wedlock--the procreation of issue-could not operate; and a man of sixty who marries a woman of fifty-two should be contented to take her tanquam soror. But here there was a failure of proof on both points, which it was incumbent on the husband to establish, first, that there was an impediment to consummation existing at the time of the [ *213 ]
*marriage; and, secondly, that such impediment was
incurable. It was pleaded indeed in the husband's allegation, that the disease was natural and incurable. Had it been stated that though incurable, it was merely a supervening defect-the not unusual aitendant of advanced age, and in a woman past child-bearing—I do not know that the court would have admitted the plea at all, for I have yet to look for authority that would set aside the marriage, even if these facts now insisted on as sufficient to found a sentence of nullity, were held to be proved." The legality of the marriage was established, on the ground that the husband had failed to prove the disease incurable.(b)
SECT. 4.-OF FORCE AND ERROR.
Marriages obtained by Force, Menaces or Duress.]-A distinct ground for declaring a marriage void is, that it was contracted in consequence of the use of force, menaces, or duress. But(a) such are
(6) Brown v. Brown, 1 Hagg. Eccl. R. by duress in some cases is said to be good, 524.
Dyer, 13 a; in others to be merely void; (a) The marriage of a woman in such a Kel. 52 b.; Torry v. Browne, 1 sid. 65; 1 state of fear as not to know what she said or Roll. Abr. 340, 1. 20; Com. Dig. Baron & did, was held a marriage de facto; Fulwood's Feme (B. 6); Vin. Abr. Baron & Feme (A.) case, Cro. Car. 482. 488. 492. A marriage pl. 5.
marriages de facto, and before they can be avoided as not being de jure, it ought manifestly to appear (where there was no forcible abduction that they were purely the effect of compulsion, and that there was no comparative choice unbiassed by fear of violence, (for strong temptations of interest have sometimes imputed the idea of force) between the consequences respectively of compliance or refusal, but in reality, an absolute unwillingness, and at most an apparent consent only to enter into the solemn engagement; according to the reason of that rule in the Roman civil law, “Si patre cogente ducit uxorem quam non duceret, si sui arbitrii esset, contraxit tamen matrimonium, quod inter invitos non contrahitur maluisse hoc videtur."(6) * In Harford v. Morris(c) the marriage was ultimately
[ *214 ] declared to be void on the ground of force and custody. We have already seen, that in that case a girl above the age of legal consent was taken from school and married by one of her guardians.(d) In that case Sir Geo. Hay said, that if the lady acted under terror at the time when the marriage was solemnized, it might be a good ground for setting it aside.(e)
Matrimony ought to be contracted with the utmost freedom and liberty of consent imaginable, without fear of any person whatever; for matrimony contracted through any menace or impression of fear, is null and void ipso jure; so that it is not necessary to rescind the same by an action, in the civil law called quod metus causâ, because all marriages ought to be free. But though matrimony contracted through such a fear as may happen to a man of courage, constancy, and resolution, be null and void ipso jure; yet this fear may be purged and done away by a spontaneous cohabitation for so long a time as that the cause of such fear may be presumed to cease and be destroyed thereby, and a spontaneous consent added in its room.(f)
By fear must be understood such a fear as may happen to a man or woman of good courage and resolution; and such as either includes some danger of death, or else some bodily torment and distress, otherwise it can have no operation in law lo rescind a matrimonial contract.(g)
The most remarkable case of this kind which has occurred of late years is that of Wakefield; in which case a girl of fifteen years old, ihe only child of a family distinguished as well for its high respectability as its ample fortune, was inveigled from the boarding-school where she was residing, by a inan twice her age, and hackneyed in the ways and arts of the world, aided by his brother and a foreign servant. She was first told that her mother was dying, and then that her father was bankrupt—a tale to which she lent credence more readily, because, by a singular and most unhappy coincidence, the *failure of a companion's father immediately before, and the jocular remark of her own father, who chanced then
[ *215 ] io want a few pounds in settling the school bills, that he believed he must fail too, recurred to her mind when the story of the bankruptcy was told her, and gave an appearance of truth to all the monstrous
(6) 1 Wooddeson's Lect. 423, 424.
Eccl. R. 359 ; ante, p. 187.
() Ayl. Par. 361, X. 4. 7, 2.