9 Tenn. 177 | Tenn. | 1829
The question presented upon this record for the opinion of the courtis, whether the evidence adduced in support of the prosecution warranted the conviction of the plaintiff in error, of the crime of Bigamy.
In support of the conviction it is argued by the counsel for the State, that by the common law, which is founded on the scriptures, the opinion of the ancient iatin fathers of the church, the --of the general counsel of bishops, &c. &c. from which, together with the civil law, the common lawyers have borrowed almost all their notions of the legitimacy of marriage, no particular form of solemnizing the marriage ceremony was necessary, — that the primary and grand characteristic of the union of the parties being their mutual consent thereto, founded on their respective capacity to give it. This capacity existing, consent was evidenced, per verba de, presentí which constituted ipsurn ma.irimoniumper se: or per verba defuturo, followed by cohabitation.
On the other side, for the plaintiff in error, it was insisted, that marriage is a contract of the highest importance, involving in its consequences, not only the happiness of the parties to it in their individual and private capacities, hut in having a powerful hearing and effect upon society in general, as regarding its morals, good order, peace, prosperity and harmony — all objects of the highest interest — and, accordingly,it has attracted the notice, and occupied the attention of all enlightened governments. That this course has been pursued by this government, acting upon the above principle of individual and national
It is certainly a correct proposition, not only in theory, but proved by constant practice that every independant, community, or government, has the right to regulate its own concerns; to make what laws it pleases; to abrogate and repeal existing laws theretofore made, and enact new ones respecting the same matters. The constitution of North Carolina in the preamble and first section, and her declaration of rights, sections 1 and 2, adopted December 17 and IS, I77G, declared this: and the constitution of Tennessee, in its preamble, and article 1, sec. 1 and 2, adopted 6th February 1798, did the same. Hence it is the power of these sovereign states, declared in, and pursuant to their constitutions and declarations of rights, acted upon in practice from the time of making them in their respective legislatures, and the laws so made, that is, to give the rule or rules, governing the present case, and not the power of the canon law, the common law of England, or the law of any other community, or country what ever. Upon these principles it will he examined, whether the connexion of the plaintiff in error, or his marriage with Sally Cole in the year 1797, was or was not such a connexion or marriage as, when taken into view with his subsequent marriage with Sally Williamson in the year 1827, constituted the offence of bigamy, and lawfully rendered him liable to a conviction for the same. The legality of the first marriage must therefore depend entirely upon the acts of assembly of the State of North Carolina, passed before the separation of the State of
The more important provisions of these acts of assembly, are almost entirely the same, exhibiting a settled purpose to fix and regulate the contract of marriage so as to rest orbe dependant on municipal law alone; establish-inga system intended to be complete in itself, evidenced by the attention paid to every particular, in form, as well as substance, which the importance of such a relation, both in a private and a public view', so deservedly merit'
The counsel for the plaintiff in error have cited many authorities on the construction oí statutes, which authorizes the construction this court has made on these acts of assembly, and support the conclusion they have arrived at as above stated, it would be quite unnecessary to notice many — a few only will be referred to. In Hobart 98, it is laid down: “the rule is, that affirmatives in statutes that introduce new laws, do imply a negative of all that is not in the purview,” case of Slade vs. Drake. The affirmatives in these acts of assembly that the marriage shall be according to the directions of the act,-are, 1715, sec. 15, first clause; 1741, sec. 1; 1756, sec 7and 8; 1778, sec. 1, and 1815, sec. 1; all these are express affirmatives, and 1766, sec. 1 and 3, are affirmatives by necessary implication. To the same point is Plow den 206, which says: “whence every statute, that limits a thing to be done in a particular form, altho’ it be spoken in the. affirmative, includes in itself a negative, (to wit,) that it shall not be done otherwise, (Stradling vs. Morgan.) But these acts have not permitted the introduction of the new law of marriage to rest upon affirmatives alone: they have used express negatives to the marriage being otherwise than according to the provisions of the act — they are 1741, sec. 3; 1766, sec. 1, and for proceeding.otherwise than according to the directions of the act, forfeitures are incurred and penalties inflicted by 1741, sec. 3 — 1766, sec. 5 and 7, and 1778, sec. 5. Lord Holt in Cartbew 252, says: “every contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, tho' the statute itself doth' not mention that it
It is not necessary upon the present occasion to give an opinion whether, in all cases where the question arises— whether there is a legal marriage or not, all the above requirements of the statutes must be proved to exist — we do not intend to go beyond the present case, and therefore, - now say, that in the prosecution for the offence of biga- ; my, to constitute a lawful or valid marriage, two requi- . sites are indispensable, and must be proved to have exist- , ed; 1st a proper authority, empowering the solemnization (of the marriage, which is a regular and lawful license; or a regular and lawful certificate of publication of banns. 2d. The solemnization of the marriage performed by a person duly qualified, that is, by a regular minister of the gospel having the care of souls, or a justice of the peace duly qualified.
Having seen the common law does not apply to the case, we proceed to examine whether the solemnization of the marriage of the plaintiff in error with Sally Cole in the year 1797,be avalid marriage, or otherwise, under our statutable system of municipal law, inclusive of the act of 1820, which has not yet been noticed — that act says: “if any person in this state, being married, do, at any time after the passing of that act, marry any person, the former husband or wife being alive., such offender shall be guilty of bigamy.” The plaintiff in error, in the year 1827, married Sally Williamson, under all the solemnities required by our acts of assembly, which marriage is admitted on the argument to be valid, unless rendered invalid by the prior marriage in 1797, with Sally Cole. The case turns on this last mentioned marriage. “In the year 1797, the plaintiff in error and Sally Cole appeared in the county of Davidson, before Isaac Walton, a justice of the peace of Sumner county, who.had no license authorizing a
An inference has been attempted to be drawn from the 3d sec. of the act of 1820, in these words: “and in the absence of such certified copy, the testimony of any competent by-stander, who witnessed the performance of the marriage ceremony, shall be sufficient proof of such marriage.” The preceding part of the section is in these words: “Be it enacted that a certified copy of the marriage license by the clerk who issued the same, accompanied by the certificate of solemnization of the minister of the gospel, or justice of the peace, also copied and cerli-
The statute 26th George the 2d, for the prevention of ! clandestine marriages, has regulations and provisions in it, nearly the same as our provincial act of 1766. The statute of George requires a license or publication of; banns, and it declares a marriage without them to be void. Our act of 1766, does the same. In prosecutions for bigamy in England, if the marriage were celebrated there, it may be proved by the production of the register of the marriage, or an examined copy of it, with proof of the identity of the parties &c. or the marriage maybe proved by some person, who was present at it; but then, it should seem, (says.the book) evidence must be given of banns, regularly published or of a license: and if the marriage were by license, that the parties were of age, or, if under age, that the consent' of the parent or guardian was had &c. &c. In fact, a valid marriage must be proved, per Raley, justice, in Smith vs. Janson, 1 Phillimore 287, and Archbold’scriminal pleadings358-9. These books are cited for the purpose of showing the construction of, and the practice under a statute having provisions similar to our statutes on the same subject, and as , being reputable opinions, corroborating the construction we have given, the act of 1820, that the testimony of the by-stander is not intended by the act to be the tes-timonjr of a marriage at common law, but the testimony of a marriage under our statute law.
The act of 1741, ch. 1, provides that mjnjsf.ers 0f ¿pg c}lurch 0f England, or, for the want of such, justices of Fthe peace within the government are authorized to solemnize the rites of matrimony. But justices shall not marry in a parish where a clergyman resides, nor shall either the clergyman or justice marry without a license, to be issued by the Governor, or, the publication of banns, under the penalty of £50.
The act of 1766, ch. 9, in a preamble thereto, recites, as an evil, that the Presbyterian or dissenting clergy, not feeling themselves included in the restrictive clauses of the act of 1741, had married persons' without either license or publication of banns — whereby the just and legal fees to the Governor had been eluded, and the validity of marriages endangered — for remedy, it is provided, “that marriages theretofore made, by any of the dissenting clergy, should be valid, legal and effectual. The 2 sec. of the act, puts a positive injunction on Episcopal clergy and justices, and imposes a forfeiture of £50, if they shall celebrate the rites of matrimony without certificate of publication of banns, or a license. Sec. 7, places Presbyterian clergy on a footing with justices, (to .wit,) that they may celebrate the rites of matrimony, but must have a certificate of publication of banns, or a license from under the hand and seal of the Governor— then follows the 8th sec. in these words: “ Provided always, ■that all such marriages so solemnized by any presbyterian minister as aforesaid, shall be under a license, first had and obtained from the Governor or commander in Chief for the time being, or by license in such manner as directed by this act; and that all marriages solemnized as aforesaid, without such license first had, shall be and are hereby declared illegal and void.” The 9th sec. then follows: “And be it further enacted, That any presbyterian minister, solemnizing the rites of matrimony as aforesaid, without such license first had, shall, for every such offence forfeit and pay the sum of fifty pounds.” The 10th sec. is in the following words: “Provided always, That the minister of the church of England, having the care of any
The dissenting ministers claimed an independent right in their congregations to celebrate the marital rites. With a view to secure the fees to the Governor, the fee to the Episcopal clergy, as is provided by sec. 10, the act was passed — and to restrain the presbyterian clergy the 8th sec. was inserted. Thus the law stood for 12 years after the declaration of Independence, which instrument was aimed at the prerogatives of the governor and established clergy, (as well as the other matter, of higher moment, complained of in it.) The constitution of North Carolina was formed; and received its signature on the 18th December 1776. By the constitution, the executive, as he existed under the crown, wholly ceased. The 34th sec. °f that instrument levelled the Episcopal clergy to the rank of the clergy of all other denominations. We are left to conjecture the state of things that must have existed after this great revolution in the civil government of North Carolina.
There were two years within which period no person was provided by law to grant a license. No doubt the Episcopal clergy would publish the banns as before the revolution. But it is clear the presbyterian and other clergy, when placed upon a level with the Episcopalian clergy, by the constitution, felt themselves relieved from all restraint imposed by previous laws. That they did celebrate the rites of matrimony, in their congregations, as they had done before the act of 1766, is evident from the language used in the act of 1778. And, it is equally clear to my mind that this act of ’78 does and must stand alone as statute law on the subject of marriage. When
The 3d sec. authorizes the clerks of the several counties to issue a license lo any person applying for the same, • taking bond &c. Such license to be directed to any minister or justice of the peace. The next sec. (4) provides that every minister of the gospel, or any other person, appointed by the church as a reader, should haye power to publish the banns, and that the people called Quakers should be at liberty to retain their former rules and privileges: sec. 5, imposes penalties on persons celebrating the rites of matrimony any otherwise than by the act provided — also, imposes penalties on clerks for improperly issuing licenses. There is no repealing clause, 'nor is there any clause making void any marriage solem-ínized, otherwise, than as in the act provided.
The construction of this act must, therefore, determine the question; and,to be enabled to construe it, it will first be necessary to consider if it, (the act) was designed to, and does, in fact, repeal the common law. No question that has been before this court is of more importance than this. The peace and happiness of families; — nay the transmission of whole estates, depends upon it. The fate of the defendant, as respe'ets the question of guilt or in
The act of North Carolina 1778, ch. 5, fixing what parts of the statute and common law shall be in force and use in North Carolina, was passed in the same year, and stands in juxta-position with the act we are about to give construction to. Marriage is a civil contract — all our laws, common and statutory treat it so. It is only as to the manner of bearing witness to it, that has been the subject of solicitude with legislators and judges. Under the act of 1778, nothing more was intended than that a person proper for the occasion should be present at the consummation of the contract. All ministers of the gospel of every denomination, or any justice of the peace in the State,had the power to become the witness of the ceremony of marriage. To all purposes except two, cohabitation alone, is necessary — the one is, where the question oí marriage arises on an indictment for bigamy — the other, in a suit for criminal conversation. These exceptions are made in tenderness to the party accused. In other cases touching'the proof of marriage, a sensible and obvious rule, of evidence, has been let in, (to wit) — that where persons have held themselves out as filling any particular station, they shall not be permitted to dispute that they had been regularly called to fill that station: and tho’ this rule is departed from in the particular case before us; yet it does not, for that reason, follow, that every minutia of the marriage must be proved, to make it a legal marriage. The act says a license may be issued, but it cannot be pretended by any lawyer that a marriage publicly made, and a community called to witness it, was not a legal marriage, and binding upon the parties. No court, for the want of a license would pronounce the marriage clandestine — no rule of law would permit such a construction. To admit the conclusion, would be to permit a man and woman to play off, in the face of a whole community, a most shameful farce — it would be to tolerate acts of open fornication or adultery, nor would this be half the evil,
At common law, it is the declared assent of the will to the act of marriage, which makes it legal — a mental reservation of one at the time shall avail nothing; but such declaring their assent shall be bound. Nothing can be clearer to my mind than that a marriage, as to the parties, shall be binding, altho’ without a license; but from motives of policy it was deemed proper to caution persons authorized to solemnize the rites, not to do it without a license, and the very imposing the penalty for marrying without license, on the person authorized to do so, proves that the marriage is legal; for if it were illegal, it would be no marriage, and the forfeiture would not be incurred. It is, therefore, not the meaning of the act, that the marriage shall be void. If you can go back to the ceremony, and show something wanting, as for instance, a licence: — then, for the same reason, you may show a licence was void because no bond had been taken, or one taken which was informal or void for other cause, for the bond is equally a requisite of the law.
The obvious meaning and intention of the act of 1788, is, that the marriage of the party shall be binding — it cannot have a construction that a marriage, which proves interesting and agreeable to all parties, shall be binding, if made without the requisite of a license; and not binding if it prove not agreeable, or to the interest of one of the parties. Such a latidude would put it in the power of men to dispose of the rights and feelings of women at pleasure.
I come now, to consider of another question, (to wit,)
It is shown in the record that the first wife is, and has long keen living in adultery with another man. 1 his, for several reasons can weigh nothing in favor of the defendant. The act of 1809, concerning divorces, provided for the injured husband ample redress, provided he had been in no default himself. If he were conscious of having been in none — why did he not apply to the courts of justice, and obtain a divorce? Judgment Reversed.