Definition
In legal usage, incontinence means want of chastity — specifically, indulgence in unlawful sexual intercourse or unchaste conduct. The term appears primarily in older domestic relations law, divorce proceedings, and statutes governing grounds for separation or annulment. It describes a pattern of sexual misconduct rather than a single act, though historical sources are not always precise on this distinction.
Common Language
Modern common usage (Wiktionary): Lack of self-restraint or inability to control oneself; unchastity. Also, the medical condition involving inability to control discharge of urine or feces.
Historical common usage (Webster's 1913): Absence of restraint of the passions or appetites; indulgence; specifically, indulgence of the sexual appetite; lewdness; also, inability to restrain natural evacuations.
Webster's 1913 is notable for capturing both meanings side by side — sexual and physiological — confirming they coexisted in ordinary 19th-century English. The legal meaning tracked only the sexual sense. Modern legal usage, where the term appears at all, has effectively inverted the dominant meaning: contemporary legal materials (personal injury, disability, elder care) use "incontinence" almost exclusively in the medical sense. A researcher must therefore be guided entirely by the date and context of the source.
Why It Matters in Research
Researchers encountering this term in 19th- and early 20th-century case law must be alert to its strictly sexual meaning in legal contexts. It appears most often in divorce pleadings and opinions from that era, where "incontinence" or "gross incontinence" could constitute a ground for divorce or legal separation distinct from adultery. The distinction mattered: adultery typically required proof of a specific act with a specific person, while incontinence might be alleged as a course of unchaste conduct — a broader and sometimes easier standard to plead.
The term effectively disappears from American legal usage after no-fault divorce reforms of the late 20th century rendered fault-based grounds largely obsolete in most jurisdictions. Researchers working in pre-reform domestic relations records will encounter it; those working in modern sources almost certainly will not. When it does appear in contemporary materials, it is almost always in the medical sense (involuntary loss of bladder or bowel control) in personal injury, elder law, disability, or long-term care contexts — a meaning entirely foreign to its historical legal usage.
Cross-corpus trap: A researcher encountering "incontinence" in a 19th-century North Carolina opinion or a Victorian-era English equity case is reading about sexual misconduct, not a medical condition. The two meanings coexisted in the language during this period, and context is essential.
Historical Dictionary Support
All three source dictionaries agree on the core definition: want of chastity, indulgence in unlawful carnal connection. Black's (2nd Ed.) aligns precisely with Black's (1st Ed.), and Bouvier's renders the same concept with slightly different phrasing — "impudicity" — a near-archaic term meaning shamelessness or immodesty. The unanimity across sources signals a settled legal meaning during the period these dictionaries addressed.
None of the historical dictionaries acknowledge the medical meaning of the term, which reflects the legal usage of their era rather than any gap in the language itself. Wiktionary confirms that both meanings existed in ordinary English, but legal dictionaries of this period had no occasion to address the physiological sense because it did not arise in the legal contexts they were cataloging.
The North Carolina cases cited in Black's (2nd Ed.) — Lucas v. Nichols and State v. Hewlin — reflect the term's application in that jurisdiction's courts, consistent with the broader American common law treatment. No significant divergence appears among the historical sources; the definition was narrow and stable.
Jurisdictional Note
The term's legal significance was concentrated in fault-based divorce jurisdictions during the 19th and early 20th centuries. Its precise scope as a divorce ground varied by state statute and judicial construction. Some jurisdictions treated it as synonymous with adultery; others treated it as a broader or distinct ground. Researchers should consult the specific state's divorce statutes and case law of the relevant period rather than assuming uniform application.