Town of Mountholly v. Town of Andover

The opinion of the court was delivered by Redfield, J.

In this case the question of the legality of the marriage of the pauper arises upon the trial of the question of her legal settlement. The case found by the jury is, that the ceremony of marriage was had before the justice, without the consent of the parties. It was a marriage by force and duress. Is such a marriage sufficient to change the settlement of the female ?

Such a marriage has always been held void. Marriage is a contract, and requires the consensus animorum as much as any other contract. It was considered exclusively a civil contract, throughout all Christendom, until the time of Pope Innocent III. In the tide of usurpation of temporal power by the Bishop of Rome, that of celebrating marriages would not be considered unimportant. That pope accordingly declared it to be exclusively a religious sacrament. In most catholic countries marriage has since' that period been regarded as a sacrament, and, as such, to belong to the spiritual courts. In England, too, all matrimonial cases belong exclusively to the ecclesiastical jurisdiction. With us marriage is but a civil contract, required to be celebrated in some public manner before a civil magistrate or minister of *228 the gospel. When the relation is once created, it becomes of perpetual obligation, unless dissolved by competent authority.

It is admitted, on all hands, that the mere fact of marriage, without the consent of parties, is of no validity. It is merely and absolutely void. It is the same as the marriage of an idiot or lunatic. 1 Russell on Crimes, 206. 1 Black. Com. 438, 439. 2 Stark. Ev. 937.

In all cases where the marriage is void, and comes in controversy collaterally, between those not parties to the contract, as in the present case, it may be impeached. Middleborough v. Rochester, 12 Mass. Rep. 363 .

But, perhaps, even a void marriage, where the parties to the contract are concerned, would not be allowed to be attacked in this collateral manner. The case of Wightman v. Wightman, 4 Johns. Ch. Cases, 343, is certainly a highly respectable authority to that effect. Some of the earlier authorities consider the marriage of a lunatic or idiot, even, as binding until dissolved by a decree to that effect. Manby v. Scott, 1 Lev. Rep. 4, 5. 1 Sid. Rep. 109. Bac. Abr. Baron and Feme, H. 1 Roll. Abr. 357. Judge Reeve and Chancellor Kent seem to consider this the settled rule upon the subject.

I should very much hesitate to differ from so respectable authority, but must say I can see no good foundation for the rule. If the ceremony is a mere form, had without the consent of the parties, it no more constitutes a marriage than if it were had without the knowledge of the parties. And it would be monstrous to suppose, that if a justice of the peace should presume to record the marriage of two parties competent to contract, but without consulting the parties, it would be necessary for them to resort to a decree of divorce, in order to avoid the effect of the record. It is difficult to perceive why a marriage, had without the consent of the parties, should be of any more validity than if one of the parties had, at the time, a former husband or wife living. In the latter case, no decree of divorce is ever required. Indeed, the court *229 would not pass a decree in such case. We always require evidence of a marriage before we proceed to decree a divorce. The very word divorce, ex vi termini, imports a marriage. '

At all events, it could not be required that the town of Andover, in order to avoid the effect of the marriage, should institute any proceeding ■ to annul what is, in itself, void. In short, no such proceeding could be instituted by them. A decree of divorce could only be obtained at the suit of the parties to the marriage.

Judgment affirmed.