dissenting.
The question is, was the Court below' right in holding, that the jury might make provision for the defendant and her child out of the property of the plaintiff, Westbrook?
Such provision the law admits of, only in divorce cases. Therefore, if this was not a divorce case, the Court must have been wrong.
Was this a divorce case ? A divorce case is a case in which, the plaintiff states a marriage between himself, or herself, and the defendant, and prays that for some alleged cause, he or she may be divorced from the defendant. The declaration must state a marriage, for where there is no marriage, there can be no divorce. Divorce is the partial or total separation' — unmarrying—of married persons, and there can be no separation, if there has been no union — no unmarrying, if there has been no marrying. The declaration, then, must state a marriage: if it states that there was no marriage, it is impossible, that the case can be a divorce case.
Does the declaration in this case fail to state a marriage— *111does it rather state what shows, that there was no marriage ? It does. It states, that at the time when, what it assumes as a marriage, was entered into, one of the parties, the plaintiff in this case was a lunatic. And a lunatic is incapable of entering into marriage, for marriage is a contract, and a lunatic is incapable of entering into a contract. Suppose the declaration had stated, that, at the time of the assumed marriage, one of the parties was an infant not over five years old; or was a slave; or was a person with a living husband or wife; would it not have stated what would show, that there was no marriage ? Most certainly it would, and why, because an infant five years old; a slave; a person with a¡. living wife or husband; is incompetent to enter into marriage. A lunatic is just as incompetent. It is true, then, that the declaration states what shows it to have been impossible, that there could have been a marriage. The case, then, made by the declaration, is, in law, precisely what it would have been, had the statement in the declaration been, that there had never been any marriage at all, between the parties. And such a case as that, I think I may assume, is not a divorce case.
Did ever any person hear of a divorce case between a free person and a slave — or between parties one or both of whom was a bigamist? And why not? Because, marriage cannot exist between such persons. It is equally true, that marriage cannot exist between persons, one of whom, is an idiot or a lunatic.
It is true, that the divorce Act of 1850, has, — “mental incapacity at the time of marriage” — as one of its grounds of divorce; but is that equivalent to saying that idiots, lunatics, and infants five years old, are competent to enter into marriage? By no means. Suppose an Act to say, that one ground of avoiding contracts should be mental incapacity at the time of the contract — would any body maintain, that the Act impliedly said, that slaves, idiots, lunatics and children under seven, were competent to make contracts? Nobody, I *112think, could seriously maintain, that the doctrine of legislation by implication, should be carried these lengths — the truth is, that expressions of this sort, are the result of mere inadvertence. If there is “mental incapacity” to enter into marriage, marriage is never entered into; and if marriage is never entered into, to talk of divorce, is to talk of death, when there has never been any life. This any one sees when his attention is called to it.
These things being so, this case in my opinion is nota divorce caserand, consequently, is not a case to admit of the decision of the Court below.
True, such an opinion as this of mine, might “bastardize the issue,” as the expression is, and leave it and the mother, without provision, from the father. But what is the evil of these things, as compared with the evil of holding, that all persons laboring under “mental incapacity” to marry, may yet marry and (by consequence) make any other contract— that idiots, lunatics, infants old enough to say yes, slaves even, may marry or make any other contract. In truth, though there may, in these cases, be cause for sympathy with the issue, there can hardly ever be any cause for sympathy with the parent. The fact will be, that in nine of the cases out of every ten, the parent was a fortune hunter, and acted with open eyes. Marriage will never invade the idiot or the lunatic, who is without fortune.
But, if this is not a case for a divorce, what is it a case for ? I answer, it is a case for a sentence of nullity of marriage. Such cases are of frequent occurrence in the English Ecclesiastical Courts. There is never any absolute necessity for such a sentence, yet such a sentence is in many cases, valuable, and is more desirable on several accounts. The Divorce Acts do not provide for a suit, to attain, such a sentence.
Does it thence follow, that no way exists by which sucha sentence may be attained? I am not prepared to say so. The Act of 1820, giving equity jurisdiction, says, that “the *113Superior Courts” “shall exercise the powers of a Court of Equity,in all cases where a common law remedy is not adequate.” The cases under consideration, are cases in which, there is no remedy at all at common law, why then are they not cases provided for, by this Act ? I do not see why.
For these reasons I dissent from the judgment of the Court.