19 N.H. 257 | Superior Court of New Hampshire | 1848
It appears from the case that the parties made a contract of marriage, lived together as husband and wife, and were reputed to be married.
The question is, whether these things are sufficient to constitute a marriage.
These events all happened before the passage of the Revised Statutes. Section 15 of chapter 147 of the Revised Statutes provides that no marriage, solemnized before any person professing to be a justice of the peace or minister of the gospel, shall be void on account of any want of jurisdiction in the justice or minister, or on account of any omission or informality in the publication of the intention of marriage, if the marriage is in other respects lawful, and consummated with the belief, on the part of either of the parties, that they have been lawfully married.
Section 11 of chapter 149 provides that any persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of three years, and until the decease of one of them, shall be deemed after such decease to have been legally married.
All the facts constituting the alleged marriage in the present case happened before the passage of the Revised Statutes. If section 11 of chapter 149 can enable acts
The invalidity of retrospective laws results no more from the express prohibition in the Bill of Rights than from the
We cannot, therefore, give the statute such a construction as would cause it to impart any validity to acts that happened before its passage, nor do we think that such was the intent of the Legislature. The words of the law do not necessarily or upon a reasonable construction of them extend to past cases. The act is prospective, applying to future cases that should subsequently arrive, and not to those which were past, and which must be determined upon the law as it existed when the acts were done. It does not include the present case.
The case of Londonderry v. Chester does not decide that a contract of marriage between the parties and subsequent cohabitation, accompanied by reputation that the parties were husband and wife, constitute a marriage. The remarks of Mr. Justice Woodbury, in that case, although relevant to the general question, were not called for by the particular matter to be decided by the court. It was not the question in that case whether mere cohabitation, reputation and acknowledgment that the parties were married, actually constituted a marriage. In that case, the marriage cere
It is very evident that the facts found in this case are competent to be received and considered by the jury as evidence of marriage. In a case where these facts exist, it is a reasonable inference that the parties are married, and the jury may well enough believe that they were married. "Whether they were or were not, is a matter of fact to be found by the jury. But we are asked to decide that these facts in themselves constituted a marriage. Woodbury, J. says in the case cited that the attestation of the contract “ proves a guard against imposition or force, gives publicity to the contract, prevents illicit intercourse under the guise of matrimony, and by the record of the acting officer and of the town clerk, perpetuates evidence of a fact which is often so important in disputes concerning inheritances and the settlement of paupers.”
If it be important to give publicity to the contract, to guard against deception, to provide that there shall be accessible evidence of the solemnization of the contract, there is a sufficient reason for .the passage of the law. All civilized nations agree that these are weighty considerations, and in all such nations, even in Scotland, where it is a sufficient solemnization of the contract to acknowledge it before witnesses, some attestation is requisite. It is singular that the most important of all human contracts, on which the rights and duties of the whole community depend, requires less formality for its validity than a conveyance of an
In many cases long continued cohabitation is prima, facie evidence of marriage. The State v. Kean, 10 N. H. Rep. 347; Pettengill v. MacGregor, 12 N. H. Rep. 179. And this is so held because persons do not generally cohabit who are not husband and wife. Evidence of cohabitation has a legal tendency to prove the existence of the marriage contract, but is not conclusive evidence of it, and may be rebutted by showing that the parties were not married. The admission of evidence of this kind, therefore, is not in conflict with the views we have stated above.
The instruction of the court was, in substance, that cohabitation and acknowledgment by the parties that they
As these instructions were erroneous, a new trial must be granted.
Verdict set aside.