36 Kan. 297 | Kan. | 1887
Lead Opinion
The opinion of the court was delivered by
The questions to be determined upon this appeal arise upon an instruction given to the jury upon the trial, in which it was said that —
“If the defendants, at the time alleged in the information, and in this state, agreed to live together as husband and wife without having a license to be married, and without having a marriage solemnized by a judge, justice of the peace, or licensed minister of the gospel, and in pursuance of such agreement lived together in this county, they would be guilty of the offense charged in the information.”
The instruction is founded upon the marriage act, and the manifest theory of the court is that the law of Kansas has provided rules regulating the marriage contract, and has prescribed a penalty or punishment for those who live together as man and wife without observing its requirements. In behalf of the appellants it is urged that what was said and done by them was sufficient to constitute marriage at common law. It is claimed that the formalities prescribed by statute are not essential to the validity of the marriage, and that as the contract of marriage between the defendants was not void, they are not punishable for failing to observe the statutory requirements in entering into the marriage contract, and that therefore the instruction given is erroneous. The correctness of the instruction depends upon the proper interpretation of the marriage act. The first section of the act provides that a marriage contract shall be considered in law as a civil contract, to which the consent of the parties is essential, and that the ceremony may be regarded either as a civil ceremony, or as a religious sacrament; but it provides that “the marriage relation shall only be entered into, maintained, or abrogated as
“Persons may be punished for not obtaining licenses to marry, or for not taking steps to secure a proper record- of the marriage, but there may nevertheless be a valid marriage.”
Mr. Bishop says that—
“This rule seems not to be peculiar to the common law. It exists also in Sicily; so in Scotland, where marriages contrary to the forms established by law are very frequent, and*305 no question remains as to their validity, the law imposes severe penalties upon the parties, the celebrator and the witnesses.” (1 Bish. Mar. & Div., § 287.)
This, in our opinion, is the legislative purpose and expression in enacting §12 of the marriage act. The provision imposing a penalty upon those who live together as man and wife without being married is a part of the marriage act, wherein it is provided how marriage contracts may be entered into and solemnized. In the first section of the act it is provided that the marriage relation shall only be entered into in the manner provided by law. It proceeds to state what the manner is, and then prescribes penalties that are to be visited on all who disregard the rules laid down.
It is to be observed that the law relating to marriage was changed in 1867, at which time the words were added to the first section that “ The marriage relation shall only be entered into, maintained, or abrogated, as provided by law.” At the same time, the twelfth section was added, providing the punishment which the defendants are now seeking to escape. These changes were not idly made, but were manifestly intended to compel compliance with the formalities and conditions prescribed. It is evident from the penalties imposed, that the legislature deemed the enforcement of the statutory regulations as important and beneficial, not only to the parties contracting marriage, but to society at large as well. The probate judge is to be punished if he issues a license to those not entitled to one. Magistrates and ministers of the gospel are forbidden under heavy penalties to marry persons before a license has been obtained; and the probate judge is declared guilty of an offense if he fails to properly record the license and the return thereon. By these and other penalties, the legislature undertook to prevent the officers and ministers from authorizing or solemnizing marriages where the conditions and formalities of the statute have not been observed. The same idea is further carried out in the twelfth section, by visiting a punishment upon the parties themselves for failing to conform to the rules prescribed. The legislature directs how parties may be mar
The exception made by the statute in regard to marriages solemnized among the Society of Friends or Quakers lends support to the view which we have taken. Marriage with them is based on consent publicly declared in one of their meetings, and has all the elements necessary to make it good at common law. According to the defendants’ theory, they would not be liable to the penalty written in §12, because marriage celebrated in accordance with their usage is valid at common law. Rut to relieve them from complying with the formalities of the statute, and to exempt them from the pen
Concurrence Opinion
concurring: Upon the record as presented to us, the question in my opinion for consideration is, not whether Edwin C. Walker and Lillian Harman are married, but whether in marrying, or rather in living together as man and wife, they have observed the statutory requirements. The language of the statute is: “The marriage relation shall only be entered into, maintained or abrogated as provided by law;” and “Any persons living together as man and wife within this state, without being married, shall be deemed guilty of a misdemeanor.” (Comp. Laws of 1879, ch. 61, §12.) My construction of these provisions is, that a ceremonial marriage must be celebrated in conformity therewith, and that any persons living together as man and wife, without being married according to these directions, are liable to the penalty thereof. I do not say, nor do I intend to intimate, that a “ consensual marriage” is not valid; but the legislature has the right to require parties assuming the marriage relation to have the marriage entered into publicly, and a record made of the same. This I think is the purpose of the statutory regulations.
Whatever commands the state may give respecting a formal marriage, the courts usually hold a marriage at common law to be good, notwithstanding the statute, unless it contains express words of nullity; yet persons who marry without conforming to the statutory regulations may be punished, although the marriage itself be valid. The consequences of marriage as to conjugal rights and the rights of heirs are so momentous that the interests of society may properly require a witness to the marriage, and a record of its acknowledgment; this much is required in the acknowledgment and registration of an ordinary conveyance of real estate. If there be no registration, no officiator, and no eye-witness of the marriage, the woman is placed at the mercy of the man, who may deny the “consensual relation” and repudiate her; and on the other hand a man may be blackmailed by an adventuress, who may de
As a rule, I do not think that any woman who has reached the years of discretion, and has a full appreciation of the marriage relation, will demur when it is proposed to clothe her matrimonial association-with the forms of law. If the man objects to having his marriage public, he tacitly admits that he intends to cheat her whom he has privately promised to make his wife. It is only just that the acknowledgment and registration of the marriage relation should not be left to the whim and caprice of the parties, because no transaction in the life of a man or a woman is more important, or fraught with more significant consequences; and society is supremely interested in having a marriage entered into publicly, and to have a record thereof.
But counsel claim that Edwin C. Walker and Lillian Harman should not be imprisoned on account of their non-observance of the statutory provisions regarding marriage, upon the ground that the statute “is an interference with their conscience,” and therefore unconstitutional. (Bill of Rights, § 7.) The assertion that the acknowledgment and registration of a marriage conflicts with any right of conscience, is wholly without foundation. The provisions of the act relating to marriage no more infringe the state constitution than does the law regulating the acknowledgment and registration of real-estate conveyances, chattel mortgages, etc.; in fact, but little more ceremony is required for the one than for the other. The statute does not demand that the marriage ceremony shall
Instead of permitting the man, as in olden times, to go to the house where his betrothed resides, and lead her away to his own house, and call her his wife, and live with her as his wife, the statute requires the man and wife, if they are to live together in the marriage relation, to obtain a license at the office of the probate judge, and have their mutual engagement acknowledged before some authorized person. The license after the marriage is to be returned to the office of the probate judge, and the registration thereof becomes public. If the parties in this case preferred to enter into the marriage relation without any religious or other elaborate ceremony, they could have done so within the terms of the statute, by obtaining a license and going quietly before some justice of the peace, and had their marriage relation there witnessed and acknowledged. They might have had as much ceremony, or as little, as they chose.
I cannot understand how the provisions of the statute can be truthfully denounced a “monstrosity,” or in what way the “sacred liberty” or “the personal rights” of the parties are infringed. If Lillian Harman desires to retain her own name, I can perceive no objection to her doing so. There is nothing in the statute justifying a man in being guilty of cruelty,
The constitution and statutes of Kansas are very liberal in recognizing the rights and privileges of women. Marriage involves neither the assumption of indebtedness nor the acquisition of property; a married woman may contract and be contracted with concerning her separate real and personal property, sell, convey, and incumber the same; sue and be sued with reference thereto, in the same manner, and to the same extent, and with like effect, and as freely as any other person may in regard to his or her real or personal property. She may purchase personal property from her husband, perform labor and services on her sole and separate account, and make the earnings therefrom her sole and separate property; she has the same control of her person and property as her husband; she has the same rights as to the nurture, education and control of her children, and also the same rights in the possession of the homestead. (Knaggs v. Mastin, 9 Kas. 532; Tallman v. Jones, 13 id. 438; Going v. Orns, 8 id. 85; Larimer v. Kelley, 10 id. 298; Butler v. Butler, 21 id. 526.) She may participate in all city elections, attend caucuses, nominate candidates, and vote for such persons and principles as her judgment dictates. In fact, in Kansas a woman is in nearly all matters accorded civil and political equality with man; she is not his servant nor his slave. Here, the sexes may harmonize in opinion, and cooperate in effort; here, woman is no longer subordinate to man, but the two are coordinate together; here, the burden of a common prejudice and a common ignorance against woman has been -wholly removed; here, the tyranny which degrades and crushes the' wives and mothers in other countries, no longer exists; here, the coveted rewards of life forever forbidden them in some of the states, are within their reach; here, a fair field for their genius and industry is open, and womanhood, with the approbation of all, may assert its divinely-chartered rights, and fulfill its noblest duties.
If Edwin C. Walker and Lillian Harman are suffering im
“A guardian angel o’er his life presiding,
Doubling his pleasures, and his cares dividing.”
Concurrence Opinion
I concur in the judgment of affirmance. I do not believe that E. C. Walker and Lillian Harman were married in any sense. In my opinion, their lengthy and prolix ceremony at the time of forming their questionable union did not meet the necessary requirements of the law, either statutory or common, to establish a valid marriage. It is true, where a license is obtained and the parties are competent to many each other, a bare acknowledgment before a judge, a justice of the peace, or a licensed preacher of the gospel, that they in the present assume the marriage relation, is all that is necessary to constitute a valid marriage. But none of these things were done in the present case. I shall also assume that aside from the statutes, but in accordance with the common law, a valid consensual marriage may be created in Kansas. In other words, the mere living together as husband and wife of a man and a woman competent to marry each other, with the honest intention of being husband and wife so long as they both shall live, will constitute them husband and wife