Dissenting. The case is this- The plaintiff on the 22d of January, 1874, married the defendant having reason to believe from the society,in which she moved, and actually believing at the time of marriage, that she was a chaste and virtuous woman. Shortly after the marriage he discovered that she was pregnant, and immediately thereupon ceased to cohabit with her. In ■ some months thereafter she was delivered of a child, from the date of whose birth it appeared that at the time, of the marriage, she was between two and three months gone with child. The plain*310tiff asks to have the marriage declared null on the ground ■of fraud.
I say that at the time of the marriage the plaintiff believed the defendant to be chaste and virtuous, because he swears in his complaint that be believed her to be virtuous, and chastity is included in that word when applied to a woman. It is universally admitted that although marriage is a political and social institution, and creates a certain status of the parties, yet it is begun by a contract which like all other contracts may be avoided for fraud. It is, however, a contract of such an important and peculiar character, that many frauds and misrepresentations which would avoid other contracts, will not avoid this. There is a diversity of opinion as to the nature of the fraud which will ■avoid it. If either of the parties be incapable of contracting altogether from imbecility of mind, or from duress, or from entering into that particular contract by reason of a previous existing marriage, or be incurably impotent, it is agreed that the marriage may be avoided. It seems also to be agreed that mere want of chastity on the part of the woman before marriage, although she has concealed the fact from her husband, and no false representations of station or fortune, will suffice. To have the effect of avoiding the marriage, the false and fraudulent representations must touch some matter essential to the contract. So much seems to be agreed on by all the authorities. There are differences of opinion as to whether the concealment by the woman of the fact that she was then pregnant by another man, is such a misrepresentation in essentials as will justify a Court in annulling the marriage.' The suppression of such a fact, which must necessarily be known to the woman, must be regarded as a misrepresentation, especially where the husband is innocent of any intercourse with her before the marriage. No affirmation of chastity in words' is possible under such circumstances. If the woman knows that the man courts her *311In the belief of her purity, to receive his addresses is to affirm that she is pure, as positively as the usages of decent society permit.
One object of marriage undoubtedly is the pleasure.of association with a female. But the paramount object is the procreation of offspring from the bodies of the twain whom marriage makes one flesh for the perpetuation of the species, and especially for the continuation'of the blood of the man .¡and of his chosen bride, unadulterated by the blood of strangers to their union. Politics, which is reason considering man asá temporary inhabitant of this earth, and Religion, which is reason considering him as an heir of immortality, and the Instinct which, because the Creator has implanted it in his creature, we call the law of God, all combine to consecrate marriage for this purpose. Unless we hold that in the contract of marriage, each party does by the strongest implication represent that fie is then competent for that purpose, and that such representation is m respect to something essential to the contract, we degrade the marriage of men to the level of the transient loves of beasts.
It is obvious that if a bride be at the time of marriage pregnant by a stranger, she is incompetent, at least for the time being, to fulfill her part of the contract in that sense which is its holiest and purest interpretation, as well as that in which by the common sense of mankind it is generally understood. She brings into the family an unexpected guest, a child who by presumption of law is the child of her husband, although they both know it not to be, and who if the marriage subsists must be regarded as such, entitled from their presumed father to equal care with the after born, and to inherit equally with them in his property.
An eminent writer on this subject (Bishop, Mar. & Div.) in criticising the opinion of the Supreme Court of Massachusetts in Reynolds v. Reynolds, 3 Allen 605, although he concurs in the judgment, thinks that the Court gave too *312much weight to the argument that the illegitimate would-inherit; because .he thinks the illegitimacy might be proved upon a contest respecting the inheritance, as well as in an action to annul the marriage. Perhaps that might be so where the proof made legitimacy impossible, as where the mother and husband were white and the child was a mulatto, as in the recent case of Warlick v. White, 76 N. C. 175. But in such a case a strong presumption would be made in favor of the legitimacy of the child which in general it would be-impossible to overcome. Besides, -the evil of disputed inheritance is almost as -great as that of a false one. I cannot but think that such a fraud goes’to the essence of the contract and that on every principle of justice and good morals and public policy, it should be declared null. The parties should not be forced into a life long co-habitation, begun in fraud on one side and mistake on the other, where the mutual love and respect, which heighten good and alleviate bad fortune among parties to more fortunate unions, do not exist,, and from which nothing but life long strife and misery can result. I am assured of the correctness of this opinion when I find it sustained by such eminently able and respectable Courts as those of Massachusetts, in Reynolds v. Reynolds, 3 Allen, 605 ; of California in Baker v. Baker, 13 Cal. 87-102; and of New Jersey in Carriss v. Carriss, 24 N. J. Eq. 516 ; and of several other States, whose decisions were cited to us by Mr. Bailey.
In-Virginia and Maryland, cases of antenuptial incontinence are provided for by statute, and it is declared a ground for annulling the marriage. But the judgment of this Court in this case, especially as interpreted by the -only authority on which it relies (Scroggins v. Scroggins, 3 Dev. 535,) has a sweep wider than it might be seen to have at the first glance.. It does not appear in this case w7hat was the color of the child which begotten before marriage made its unwelcome appearance in the house of the plaintiff. I assume as I am. *313informed is the fact, that it is white. Certainly this will mitigate the fault of the woman, and it is probable as is usual in such cases that she was more sinned against than, sinning, and in fact was guilty in nothing but in deceiving the man whom she married. But the opinion of the Court does not rest in any part upon the color of the child. Its reasoning covers just as well a case where the child was black. Such a difference would be too trivial to furnish a distinction between two cases coming in other respects within the doctrine of the decision. And in the case upon,which it rests, and which so far as I know is the only case to that effect ever decided, the child with which the woman was pregnant at the marriage was black. It will not be unfair therefore to assume for the purpose merely of discussing the principle of the present case (although the fact I believe is otherwise) that the child was black. The case of Scroggins decided in December, 1831, was this: The plaintiff (presumably a white man) married the defendant (presumably a white woman) on the 18th of December, 1828. On the 1st of May, 1829, (about four and a half months after the marriage) she was delivered of a mulatto child. He prayed for a divorce and the Court refused it.
As I propose to discuss freely the opinion in this-case, I take occasion to say in advance that it was decided in a notably brilliant period of our judicial history. The bench of this Court was then filled by Ruffin, Henderson and Daniel, each of whom was gifted with an intellect of -unusual native vigor, which had been liberalized and expanded by a study of history and philosophy to a degree not very common among the profession even in this day of the diffusion of knowledge, and each ©f whom had the habit of independent thought, as is shown by the numerous separate and dissenting opinions found in that and the succeeding volume of our Reports. Notwithstanding this they were not above error, and judging at this day with the advantage of lights *314which they did not have, I think with all respect for them and for those who follow them at this day, that they did greatly err in that decision. The question was then entirely novel. The Judges complain that it is. It had never before been discussed in a philosophical, or legal, or in any but an ecclesiastical light. The able discussions in the cases in the other States which I have cited, are all of a later date. The learned counsel for the defendant contended that the question was governed by the ecclesiastical law. A few lines early in the opinion of Rurrot, X, give the key-note of the decision; • -“There is no member of the Court who is not strongly impressed with the conviction that divorces ought in no cases be allowed, but in that already mentioned (impotence) and near consanguinity.” The decision is, therefore, upon the ecclesiastical and not upon the common law. It could not indeed escape the clear mind of RurriN, that the principles of the common law were competent without aid from any ecclesiastical canons to solve every question arising out of fraud in the making of a contract. But he failed to grasp boldly the conception which afterwards produced such admirable fruit in the minds of the Judges of Massachusetts and elsewhere He says; “The petitioner puts the case on the ground of fraud. * * * But the fraud here consists in the other party not having the qualities and character he supposed her to have. It would be dangerous to lay down a rule of that sort,” &c. He failed to see that there was a broad distinction between fraud and misrepresentation in matters which the. law considers not of the essence of the contract, such as temper, fortune, &c., and those which are.
Upon what'ground of reason does the right to a divorce for impotence stand, except that the false representation respecting it which is implied by entering into the contract of marriage, is a fraud which goes to the 'essence of the contract ? The defect in the ease before him came within the same principle, but he allowed impotence to be a good *315ground because the ecclsiastics had said so ; but not the defect in question, because they had never had occasion to say so, and of course had not said so. I have I hope sufficiently indicated the error in the opinion- to make it plain to any one. Evidently the learned Judge had no confidence in the conclusions which he drew from his slight attempt to apply the common law to the case ; for immediately afterwards, he assumes without any other ground than that the petitioner had not expressly denied any intercourse with the defendant before their marriage, which was nowhere charged against him that such intercouse had existed, and makes an argument adverse to the petitioner on that assumption. That argument would have been entirely unnecessary if the previous one had been thought to be sufficient. That ground for refusing the divorce does not apply to this case, because here a previous illicit intercourse is denied.
Whatever weight the opinion in Scroggins’ case might have had by itself, is at least greatly impaired by the decision in Barden v. Barden, immediately following in the volume, but probably decided some weeks at least after the case of Scroggins. That case was this : The plaintiff married the defendant, knowing that she had had a child then living, which however he believed to be his. After a while he discovered that the child was a mulatto, and thereupon he separated from the defendant and applied for a divorce. The decision was that if the plaintiff was induced by the representations of the defendant to think that the child was white and was his, he was entitled to a divorce. Ruffin J. again delivers the opinion, and he says -it is the opinion of his brethren in which he does not refuse to acquiesce. I infer from this that the other Judges had merely acquiesced in his opinion in Scroggins’ case. ITe says further that the decision is a concession to the “ virtuous prejudices ” of the people, from which I infer that the Court had heard that the common sense of the people rejected the former opinion, *316and like sensible men they admitted the supremacy of common sense and abandoned the opinion.
It is said that hard cases are apt to make bad law. If by a hard case one is meant in which the application of some technical rule of law, or an adherence to some obsolete precedent produces a decision manifestly opposed to justice and common sense, I think it may more properly be said that it is the bad law which makes the hard case. The positive language of a statute may perhaps sometime compel a Judge to decide contrary to justice. But it is impossible that the common law, whose foundation is reason, can in any case be opposed to justice, good morals, or public policy. Can a harder case than that of Scroggins (leaving out his supposed antenuptial incontinency) be conceived of? It cannot be heightened by any effort of the imagination. A mulatto has a right to sit at his board and innocently claims his paternal caresses. If, unfortunately, he has children born to him, they are not pure of his race. The blood of the woman, as physiologists tell us, has been tainted by mingling with that of her first child, and she is incapable of bearing children that will not show some mixture of African blood in appearance or character. It is well known that a mare which has once borne a, mule, is incapable ever after of bearing a pure blooded horse. The man has lost the common right lawfully to continue his pure race. The same law, which as interpreted by the Courts compels co-habitation with the woman and association around'his hearth by himself and his children with her mulatto child, says, that the mulatto and his white brothers shall not attend the same school. And a law not written, but which no canon of an ecclesiastical council, nor any Civil Rights’ Act of Congress, nor any decision of a Court can control, says, they shall not associate in the same social circle.
I cannot conceive how any one can think that such a fraud does not touch the essentials of the marriage contract. I *317cannot believe that the common law, whose boast it is to furnish a remedy for every wrong, has no remedy for a wrong such as this.
'I think the marriage should be declared null.
Per Curiam. ■ Judgment affirmed.