Harrison v. State ex rel. Harrison

Bowie, O. J., delivered tbe opinion of tbis Court. Bartol, J., dissenting. Few questions are more interesting, or more important to society, than those presented by this appeal, — viz:—the validity of marriages between persons within the prohibited degrees, and the power of the Legislature, by retroactive enactments, to restore an inheritable quality to persons, otherwise incapable of taking. For the first time since its passage, as far as the records of this Court inform us, the interpretation of the Act of February 1777, ch. 12, entitled, “An Act concerning Marriages,” is brought in question.

The counsel, with an ability and earnestness worthy of the magnitude of the subject, have exhausted the resources of research and argument, to illustrate their views, and contributed much to enable us to arrive at satisfactory conclusions. The leading propositions discussed were: 1st. Was the marriage’ between Robert and Martha Harrison, absolutely void, or only voidable? 2nd. If avoidable, did the Act of 1860, ch. 271, cure the incapacity of the contracting parties, and impart to the issue of the marriage, the faculty of taking as dis-tributees and heirs at law?

In the first proposition is included the minor one, whether the marriage beiug celebrated in the District of Columbia, was within the operation of the first section of the Act. The sections important to the consideration of this case, are as follows: “An Act concerning Marriages.” “1. If any person within- this State shall hereafter marry with any person related within any of the degrees of kindred or affinity expressed in the following table, such marriage shall be void.” ■ “2. That if any person shall hereafter marry with any person related within the three degrees of lineal direct consanguinity, or within the first degree of collateral ⁴⁸³ consanguinity, eacb of tbe parties on conviction thereof in the General Court shall forfeit and pay £500, or be banished this State for ever; and if any person shall hereafter marry with any person related within any other of the degrees of kindred, or within any of the degrees of affinity, each shall forfeit £200.” “6.

If any person shall go out of this State and there marry with any person belonging to this State, contrary to this Act, each of said parties shall be liable to the same punishment or penalty, as if the offence had been committed within this State.” 14. That the Chancellor shall and may hear and determine all claims for alimony, in as full and ample manner, as such causes could be heard by the laws of England, in the Ecclesiastical Courts there. ■ “15. That the General Court may inquire into, hear and determine, either on indictment, or petition of either of the parties, the validity of any marriage, and may declare any marriage contrary to the table in this Act, or any second marriage, the first subsisting, null and void; and on appeal, the depositions and evidence given in the cause, shall be transmitted with the record to the Court of Appeals, and thereupon such cause shall be heard, determined and adjudged de novo.” The sections .not quoted relate to the celebration of marriages, the persons by whom celebrated, and the places, churches, or chapels where celebrated, and the banns and licenses — and penalties for violating the same. 1st Point. — The Canon and Civil Law, regulating marriages, was a part of the Common Law, administered by ecclesiastical and civil tribunals in England, and.transplanted to the colonies by our ancestors, without introducing corresponding Courts to enforce them. In the first year ’ of the organization of the State Government, 1 TIT, ch. 12, the General Assembly passed the Act entitled “An Act concerning Marriages.” This Act was ⁴⁸⁴ declaratory of the Canon as a part of the Common Law, prohibiting marriages between persons related in such degrees of consanguinity and affinity as previously prevented their lawfully joining in matrimony.

The disabilities enumerated, are all canonical disabilities, and not those known to the law as civil disabilities. Canonical disabilities were such as rendered the marriage voidable and not void. They require the judgment of an Ecclesiastical Court, during the lives of the parties, to make them effective, as causes of a divorce. On the other hand civil disabilities, such as arose “pro defect'd concensus,” for want of a capacity to contract, or physical infirmity, ipso facto avoided the marriage without the action of the Courts.

When the Legislature declared by Statute, that persons laboring under canonical disabilities should not marry under certain penalties, but such marriages should be void, and gave jurisdiction to the General Court to hear and determine upon such marriages, it is to be supposed they designed to put persons laboring under such disabilities, in the same position they were at Common Law, viz: they should be void, when'established by the judgment of a Court, in the life of the parties to the marriage, not to confound canonical and civil disabilities, and destroy the distinction between them. Ecclesiastical judgments were pronounced “pro salute animce,” to vindicate the divine law, not to assert the rights of property, and therefore were limited to the lives of the parties. The illicit union being dissolved by. death, no subsequent proceedings could afterwards affect the rights of the issue. If it was the purpose of the Act of 1177, to convert canonical disabilities into civil disabilities, and make such marriages null and void absolutely, the provisions of section fifteen were superfluous and useless.

All the objects which the law would accomplish consistently with equity and justice, are obtained by interpreting these sections collectively, in consonance with the effect ⁴⁸⁵ of sucb disabilities, when established by tbeir prope^ tribunals; and consequences degrading to society and unjust to innocent persons, are avoided by this construction. The Legislature, by the Acts of 1785, ch. 35, and 1730, ch. 20, ratified and confirmed retrospectively, the marriages which the Act of 1777, ch. 12, had declared void, and this, as was urged in argument, without any reservation of vested rights. These Acts being in “pari materia,” are to be construed together, as parts of one system. The distinction between void and voidable, was not unknown to the legislators of that day.

Such enactments would not have been made, if their provisions were deemed nugatory. Cotemporaneous legislation is the best standard of the meaning of laws, f When a marriage is declared to be void, it does not necessarily mean void “ah initioReason and justice would imply, it was void from the time its nullity should be pronounced by a Court of competent jurisdiction, not that it should be so construed whenever brought incidentally in question. This view of the subject is confirmed in our opinion by the course of legislation in England. There, the legal validity of marriages previous to the first Marriage Act, (26 Geo. 2nd., c. 33,) depended upon the doctrine of the Ecclesiastical Courts.

Shelford on Marriage and Divorce, ch. 2nd., p. 26. The intention of the Statutes of 25 Hen. 8 , ch. 22, 28; Hen. 8, ch. 7 and 32; Hen. 8, ch. 38, was to restore the Levitical computation, and prevent the impeaching of marriages for consanguinity or affinity, without the Levitical degrees. Shelford, 162, 165. The Statute 26 Geo. 2, ch. 33, called the Marriage Act, was founded on the great mischiefs and inconveniences which had arisen from clandestine marriages, and to prevent them in future; hence this Act prescribed the place and modes of solemnizing marriages in England; all marriages solemnized after the 25th of March 1754, without publication of ⁴⁸⁶ Warms or license of marriage, were made null and void to all’intents and purposes whatsoever.

Shelford, ch. 2nd, p. 30. The Statute of 5 and 6 William 4, ch. 54, recites — That all marriages between persons within the prohibited degrees, are voidable only by sentence of the Ecclesiastical Court, pronounced during the lifetime of the parties thereto, and it is unreasonable that the state and condition of the children of marriages between persons within the prohibited degrees of affinity, should remain unsettled during so long a period, and it is fitting that all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity, be ipso facto void, and not merely voidable. Shelford, ch. 3, p. 156. It therefore enacts that all marriages thereafter celebrated between persons within the prohibited degrees,'shall be absolutely null and void to all intents and purposes whatsoever.

The provisions of this Statute, are in marked contrast with the Act of 1777. It recites the indissoluble character of marriages, for canonical disabilities in Ecclesiastical. Courts, except by sentence pronounced during the lifetime of the parties thereto. The inconvenience and unreasonableness of suspending the state and condition of the children of marriages between persons within the prohibited degrees of affinity, during so long a period; and to cure this evil, and prevent all marriages in future between persons within the prohibited degrees, in emphatic language, declares such marriages shall be absolutely null and void, to all intents and purposes whatever, not voidable.

The British Statute, shows an intelligent, deliberate purpose to destroy the distinction between canonical and civil disabilities to this extent. The Maryland Act indicates no such purpose. No Ecclesiastical Court existed here; and instead of destroying, it erected a jurisdiction with power upon petition of either of the parties, or on indictment, to inquire into, ⁴⁸⁷ hear and determine the validity of any marriage, and to declare any marriage contrary to the Act, null and void. It cannot escape observation, that if the Act of 1777> ch. 12, makes all such marriages void, the consequence is, the issue of all such marriages is bastardized, and the saving of the rights of children and widows, under the distinction between voidable and void marriages, which the canon law protected, unless the marriage was dissolved during the joint lives of the parties, is lost.

Such a construction is so pregnant with serious consequences, as not to be adopted without the most cogent and conclusive authority. The chief mischief to be corrected, was, the intermarriage of persons within the prohibited degrees. There were no Courts in existence to take cognizance of such offences. A new Government was just being organized, and our connection with the mother country dissolved.

We had just declared “that the inhabitants of Maryland are entitled to the Common Law of England, and the benefit of such English statutes as existed on the 4th of July 1776, and which by experience had been found applicable.” The Marriage Acts were not-among these. It was therefore necessary to re-enact thé Canon Law as part of the Common Law, not with the design to'' increase the penalties of their violation, nor to punish the innocent for the guilty, nor to dissolve marriages after the death of the parties, but to create a forum where the Canonical disabilities could be enforced during the lives of the parties, and with tender regard to the condition of the unfortunate issue. / ‘ ‘It is not to be presumed that the legislature intended to make any innovation upon the Common Law, further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced; for if the Parliament had had that design, it is naturally said they would have expressed it.” * * * ⁴⁸⁸ “Bv the Statute de donis, it was enacted, That a fine levied of entailed lands ‘ipso jure sit nullus j yet the construction was, that such fine should not be a nullity, but only a discontinuance.” Dwarris on Statutes, 695. “When a statue alters the Common Law, the meaning shall not be strained beyond the words, except in cases of public utility, when the end of the Act appears to be larger than the enacting words.” Hid. The Act of l'l'J'l, ch. 12, being penal in its character, must be taken strictly “in the point of defining and setting down the fact and the punishment.” The Statute 5 Elia., ch. 4, sec. 41, says all indentures of apprenticeship, made otherwise than is by that Act directed, shall be clearly void in law to all intents and purposes whatsoever.” C. J. Mansfield observed: '“The words of the 41st section certainly at first startle one.

Yet there have been many cases cited which say that indentures which do not conform to the Act shall be only voidable and not void. If the word voidable were applied to adults it would be extremely strange; with respect to infants, if applied to them, one can understand it. In all those cases the question arose with respect to the rights of infant apprentices; hut there has been no case cited, when the doctrine that the contract is voidable not void, is applied to the case of a master, and it would be very wonderful if there were.” The acts of the infants under the Act of Elizabeth, are incomparably less important than those of the issue under the Marriage Act; and if words of stronger import were relaxed to shield and preserve the former, words of less force may be restricted by the general provisions of the Act, and those in pari materia to save the latter from disseisin and bastardy. “There is in our books,