True v. Ranney, 21 N.H. 52

True v. Ranney

21 N.H. 52 | Superior Court of New Hampshire | 1850

Gilchrist, C. J.

Allusion is made to a decree of “ divorce or nullity ” by this court in the Revised Statutes, ch. 148, §§ 2, 12, and 13. No mode is prescribed either in the constitution, or the statutes, in which proceedings shall be instituted and carried on, for the purpose of procuring a decree of nullity of marriage ; but that the court have the power to make such a decree, and to regulate the mode of procedure, we think is beyond doubt. 2 Kent, Comm. 76. There is a provision in § 7, ch. 148, that every libel shall be signed by the libellant, if of sound mind, and of the age of legal consent, otherwise by the parent, guardian, or next friend of such libellant.

The consent of the parties is essential to the validity of all contracts; and as marriage is a contract, it is essential to its validity, that the parties should understand the nature of the *54agreement they are about to enter into. Londonderry v. Chester, 2 N. H. Rep. 278; Clark v. Clark, 10 N. H. Rep. 382; 1 Bl. Com. 433. In the case of Turner v. Myers, 1 Hagg. Cons. R. 416, 417, Lord Stowell said, a defect of capacity invalidates the contract of marriage, as well as any other contract. It is true, that there are some obscure dicta by the earlier commentators on the law, that the marriage of an insane person' could not be invalidated on that account; founded on some notion’ that prevailed in the dark ages, of the mysterious nature of the contract of marriage, in which its spiritual nature almost entirely obliterated its civil character. In more modern times it has been considered in its proper light, as a civil contract, as well as a religious vow ; and like all civil contracts will be invalidated' by want of consent of capable persons. So in the case of Browning v. Reane, 2 Phill. R. 70, Sir J. Nicholl, after quoting Blackstone, said, “ Here then the law, and the good sense of the law, are clearly laid down; want of reason must, of course, invalidate a contract, and the most important contract of life, the very essence of which is consent. If the incapacity be such that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecility, of taking care of his or her own person, or property, such an individual cannot dispose of her person and property by the matrimonial contract, any more than by any other contract.” A marriage de facto, under circumstances of privacy, infer-' ring fraud and. circumvention, between a person of weak and deranged mind, and the daughter of his trustee, and solicitor, who had great influence over him, and by whom he was clearly considered and treated as of unsound mind, was pronounced null and void. Portsmouth v. Portsmouth, 1 Hagg. 355.

The evidence in the case satisfies us, as we think it cannot fail to satisfy any reasonable man, that the petitioner was so imbecile, that she was entirely unable to understand the nature and obligation of the contract into which it was proposed she should enter. There is every reason to believe, that no person so lamentably imbecile as this young woman appears to be, could have the remotest idea of the meaning of a contract, for the *55performance of any of the ordinary duties of life, and still less ,of a contract of marriage.

The marriage ceremony was performed in the State of Vermont, and how far the lex loci contractus is to affect the obligation of the contract in a case like this, is a matter to be inquired into.

The doctrine of trying contracts, especially those of marriage, according to the laws of the country where they were made, is practised in all civilized countries, and is agreeable to the law of nations. It is the consent of all nations, it is the jus gentium, •that the solemnities of the different nations with respect to marriages, should be observed, and that contracts of this kind are to be determined by the laws of the country where they are made. But, although this principle is of general obligation, nevertheless, like every other general rule, it is subject to some limitations. The rule holds only where it does not stand opposed to the religion, morality, or municipal institutions of the country in which it is sought to be applied. The rule will not be enfox-ced to the danger of these, because it is the first duty and law of every state to preserve its religion pure, and its institutions entire. It has been said, by an eminent Scottish judge, that “A party who is domiciled here, cannot be permitted to import into this country a law peculiar to his own case, and which is in opposition to those great and important public law.s, which our legislature has held to be essentially connected with the best interest of society.” Lord Robertson Eergusson on Mar. & D. 397. Thus, the lex loci was not allowed to prevail where one of the parties was incapacitated by the law of his domicil from making the contract, and was not relieved from his incapacity by a transient visit to Scotland. One of the parties had been married before, and divorced in Scotland. At the time of the divorce and second mamagé, he was domiciled in England. According to the law of England, the first marriage had not been dissolved, and, therefore, the party was incapable of contracting a second marriage. Beazeley v. Beazeley, 3 Hagg. 639. So, if a foreign state should allow marriages clearly incestuous by the law of nature, they would not be allowed to have *56validity elsewhere. Greenwood v. Curtis, 6 Mass. 378; Medway v. Needham, 16 Mass. 157; Putnam v. Putnam, 8 Pick. 433.

We have no doubt, that the tribunals in Vermont would adjudge the ceremony of. marriage in this case to be of no binding force. Throughout the civilized world, the consensus animorum, the willing mind, is required as an essential attribute of this contract. But the intelligence was wanting, to enable the party to give consent. She acquiesced in what was done, but the acquiescence came from the lips only, and not from the mind. We are, therefore, of opinion, that there should be a' decree of nullity of marriage.