73 Miss. 172 | Miss. | 1895
delivered the opinion of the court.
The indictment charges ‘ that C. W. Crawford, in Pickens county, Alabama, on the fifth day of February, A.D. 1893, did marry and have for his wife one Florence King, and afterwards, while the said Florence • King was living, in the county of At
The contention, and the only contention possible, on which the defendant’s marriage with Roxie Gregory, in Attala county, in December, 1894, can be justified and held lawful is that the marriage with Florence King, in 1893, was void by reason of the prohibition of marriage by the defendant in the decree of the Alabama court which dissolved the marriage tie between Susan Driggers, the first wife, and the defendant, and, hence, the marriage with Florence King being void, the subsequent marriage with Roxie Gregory, after the death of Susan Driggers, was legal, valid and not bigamous.
In considering the important and delicate question thus presented, we turn, first of all, to the Alabama statute to ascertain its precise terms. Section 2688, code of Alabama 1876, declares that the chancellor before whom divorce proceedings are pending, ‘‘in making his decree in the cause, shall, as the evidence and the nature of the case may warrant, direct whether the party against whom the decree of divorce is made be permitted to marry again, ’ ’ etc., without any other words making a marriage subsequently contracted in disregard of the direc
To reach any satisfactory solution of the question presented, it may be well to consider for a moment what marriage, or the marriage contract, is. By millions of persons in civilized Christendom marriage is regarded as a sacrament, and by all as the assumption, on the part of the two persons consenting thereto and entering thereupon, of a relationship the tenderest and most sacred which mortals may contract. By the law itself, marriage is regarded as a contract, and more than an ordinary contract which affects only property rights, for, in marriage contracts, not only the parties thereto are vitally concerned, but society, the state itself, is likewise concerned. Marriage was before statutes, and the foundations of good government rest upon faithful maintenance of the nuptial contract. So far as human law can render inviolable any contract entered into by human beings, the inviolability of marriage is sought to be inculcated and upheld. But the law, taking knowledge of the sin and wrong and crime that may creep into human life and conduct, and so render the holiest relationship a thing of loathing and horror to outraged innocence and fidelity therein bound, compassionately and wisely makes provision for the annullment of the marriage contract itself on a few specified and well-known grounds. But the voice of the law and the spirit of the law, with all its intendments and implications, make for marriage and for the maintenance of the validity of the marriage contract.
Multitudes of’ marriages are entered into without strict observance of the mere forms prescribed by statute for contracting matrimony, and are, hence, illegal, perhaps; illegal certainly to this extent, viz., the parties thereto, with others aiding in violation of statutory directions, subject themselves to penalties. And yet, in this day and time, no court, we apprehend, would declare a marriage void for failure to comply in its solemnization with any or all of the prerequisite formalities of a statute, unless unhappily there could be found an enactment declaring void a marriage entered into honorably, openly, in good faith, and with the joyful consent of the parties thereto, because of some wretched formality which had been overlooked or disregarded.
This view which we have advanced, and briefly endeavored to maintain, is humane, conservative and wise. While it shelters the unoffending, it leaves the wrongdoer to his appropriate punishment. It tends to make inviolable the most tender and im
A long protracted and thorough examination of all authorities within our reach discloses much confusion on the subject, and marked contrariety of opinion in the courts of last resort. It may be admitted that the volume of judicial determination is opposed to our view. But, though the question is res nova with us, and therefore one of great interest, as well as one of importance on account of the nature of the subject, yet the view which we adopt was vigorously asserted forty years ago by the supreme court of Georgia in Park v. Barron, 20 Ga., 702. This view was taken, thirty years later, by the supreme court of Indiana in Mason v. Mason, 101 Ind., 25. Bishop, in both volumes of his able work on Marriage and Divorce, discusses the question with great clearness and strength, and demonstrates the correctness of the position which we now adopt.
The assignments of error filed by counsel for defendant are' all nonmaintainable. ■
Affirmed.