27 Ga. 102 | Ga. | 1859
Lead Opinion
By the Court.
delivering the opinion.
This was a libel for divorce, brought by Brown, as guardian of Westbrook, against Catherine, his wife, on the ground of mental incapacity at the time of the marriage. The plaintiff failing to file a schedule, the Court, on motion, compelled him to do so. And the special jury found, that sufficient proofs had been submitted to them to grant a total divorce between the parties. They further found, that $10,000 be set apart for the support of the lunatic during his lifetime, $4,000 for the maintenance of the wife, and the residue of the property, including the remainder of these two funds, be equally divided amongst the children of the lunatic by a former wife, and the child of the present marriage.
It is insisted by the plaintiff below, and the plaintiff in this Court, that so much of the verdict shall stand as separates the parties; and he proposes to arrest and vacate that part of it which makes provision for the wife and the offspring of the second marriage. The position assumed is, that this marriage was not voidable only, but void for want of capacity in the husband to consent to the contract. And that consequently, the marriage being meretricious, the parties have been living together in a state of concubinage, and not of wedlock, and that the offspring of this unlawful connexion is a bastard.
This is a grave question ; one of much magnitude, not only to the parties immediately concerned, but to society. Whether such a marriage be void, or voidable only, before a commission of lunacy issue, and office found, I shall not stop
It may be said that the power may exist, although it has ■lain dormant since the beginning of our history, liable to be called at any time into action. The failure to exercise this power, is strong evidence that it never was recognized and adopted by our people; and our statutes show that it is distasteful to their feelings and sense of right. I should be reluctant myself to give vitality to any great principle of the •law, which had slept for three-quarters of a century.
The whole tenor of our legislation favors the view which I have taken of this subject; and it is right that it should. No innocent woman should be separated from the man whom ■she supposed to be her husband, without being provided for; ■and the idea of bastardizing the children of such a marriage,
I care not to what forum the lunatic, by his guardian, appeals; nor what form of proceeding he adopts-; a jury in Georgia will never be found who will pronounce a woman, whose conduct is unimpeached, a fornicatress, and her-babe a bastard. And yet this result is inevitable under a sentence of nullity. Neither will they drive her and her child, like Hagar and Ishmael, with only a morsel of bread and a bottle of water, to starve in the wilderness, while the husband and the father -have a plenty and to spare. Should any such be thus unfeelingly expelled from the hearth and homestead, which they supposed to be their own, may they receive that comfort and support from Heaven, which were vouchsafed to the Egyptian handmaid of old, although denied to them by man!
What shall we do then ? Declare this whole proceeding a nullity? We are not asked to do this; but to reverse the judgment of the Court below for refusing to vacate a part of it. For myself, I believe the proceeding legal and the verdict just and binding; and vote for affirming it in toto. I should not represent the genius and gallantry of the men of Georgia, standing out so prominently in all our laws, were I ■to do otherwise.
This Court had, by one of its decisions, limited divorces to the legal grounds existing at common law. The Legislature, in 1850, passed an Act specifying the causes upon which divorces from the bonds of matrimony should be granted. And the second ground enumerated is, mental in
It is said that a sentence of nullity does not bastardize the issue. That is, the sentence does not say so, in form. But this is sticking in the bark. When that is the necessary and inevitable effect, it is not pretended but that it will follow, as •a matter of course, in this case.
It is said that North Carolina, and some of the other States perhaps, have divorce laws, and yet entertain proceedings to annul marriages. Their divorce laws, as well as the spirit of their people and institutions, are different from ours. Their policy may be different. Our Legislature has done its utmost to save innocent children from the brand of illegitimacy. By the 7th section of the Act of 1806, (Cobb, 225,) it is provided that in all cases of divorce, the issue of the marriage shall not be bastardized; but shall be capable of taking by descent or distribution from either of their parents. And with this sweeping declaration they felt content; believing as they did, that the marriage relation could not be annulled, except by divorce. But to demonstrate still further their settled and determined policy, upon this subject, it is enacted, (Cobb, 814,) that even in cases of bigamy, the offspring shall not be spurious, if born before prosecution, or within the ordinary period of gestation afterwards. Where there is a husband or wife living when the second marriage is formed, the suffering party does not always seek a divorce. Hence the propriety of this provision. If they did, the children would be protected under the 7th section of the Act of 1806.
It may be said that this clause in the code shows, that without it the offspring would have been bastards. Hence it may be argued, that in case of mental incapacity to marry
Judgment affirmed.
Dissenting Opinion
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—
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
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
For these reasons I dissent from the judgment of the Court.