Harrison v. State ex rel. Harrison , 22 Md. 468 ( 1864 )

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 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 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 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 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, 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.” * * * “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, great looseness, and no little confusion in the use of the terms void and voidable, growing perhaps in some degree out of the imperfection of language. There are at least some kinds of defects which are included under these expressions, while we have but those two terms to express them all.” 2 Kent Com., 234. 7 Bac. Ab., 64. “Void and Voidable.”

“1st. Proceedings may be wholly void, without force or effect as to all persons and for all purposes, and incapable of being or being made otherwise. 2nd. Things may be void as to some person and for some purposes, and as to them, incapable of being otherwise, which are yet valid as to other persons, and effectual for other purposes. 3rd. Things may be void as to all persons, and for all purposes, or as to some persons and for some purposes, though not so as to others, until they are confirmed; but though said to be void, they are not so in the broadest sense of that term, because they have a capacity of being confirmed, and after such confirmation, they are binding. For this kind of defect, our language affords no distinctive term. They are strictly neither void, that is mere nullities, nor voidable, because they do not require to be avoided; but until confirmed, they are without validity. They are usually spoken of as void, and as usage is the only law of language, they are so called correctly. It is therefore always to be considered an open question, to be decided by the connexion and otherwise, whether the term void is used in a given instance in one or the other of these, in some respects dissimilar senses.” State vs. Richmond, 6 Foster, (N. H.,) 238.

By the 26 Geo. 2, ch. 33, sec. 8, all marriages solemnized contrary to that Act “shall be null and void to all intents and purposes whatsoever.” — “In the case of Crompton vs. Bearcroft, Bul. N. P., 113, cited in Bac. Ahr. 459, note a, (December 1st 1768,) — the appellant and respondent both being English subjects, and the appellant under age, ran away without the consent of her guardian, and were married in Scotland, and in a suit brought in the Spiritual Court to annul the marriage, it was holden, that the marriage was good.” The annotator of Bac. Abr. adds: If Gretna Green marriages were invalid according to English law, and dependant for validity solely on the Scotch law, there would seem to be ground to doubt the soundness of the decisions holding them valid; for it is apprehended that, when parties merely pass into Scotland to make the contract of marriage, and immediately return to England, the law of England properly governs the contract, according to Lord Mansfield’s observations in Robinson vs. Bland, 2 Burr, 1097, and according to the principle laid down by Huber. De Confl. Legum” etc., 6 Bac. Abr., 469, note a.

When it is considered that the table of prohibited degrees, adopted by the Marriage Act, embraced both lineal and collateral relations, those .by consanguinity, as well as affinity, and pronounced them alike void, without regard to the degree of consanguinity or affinity; it is impossible to presume that the word “void” was used in its most absolute and unrestricted sense. The 14th section recognizes the existence of the Ecclesiastical Courts in England, and confers upon the Chancellor, in all causes for alimony, power to hear and determine in as ample a manner as such causes could be heard in the Ecclesiastical Courts there. Is it a forced construction to say, that when in the 15th section it authorizes the General Court to inquire into, hear and determine either on indictment or petition of either of the parties, the validity of any marriage, and to declare any marriage contrary to the table, null and void, it was intended that the same rules which prevailed in the Ecclesiastical Courts in such cases, should prevail in the General Court, and until such decree or judgment of the General Court, the marriage should not he void but voidable.

The Act evidently imports there should be action in the lifetime of the parties, and requires upon appeal, that “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 and adjudged “de novo.” Why so much care for the living, if after death, the innocent issue, when all the evidence has been lost, may be pronounced illegitimate, and deprived of their patrimony. It is not for human tribunals to visit the sins of the parents upon the children. We hold, therefore, that the word void, is to be understood void upon judgment or decree, for that purpose found or passed, and not ipso facto” void.

2nd Point. — A series of decisions of this Court, upon the constitutionality of laws, enacted by the General Assembly, has established these principles of construction. A Legislative Act should not be pronounced unconstitutional or invalid in a doubtful case, where the doubt is !‘bona fide” and well founded. It is the exercise of a judicial power of a grave and delicate nature, which can only be warranted in a clear case. Begent’s Case, 9 G. & J., 383. Doyle vs. Comm’rs, &c., 12 G. & J., 438. Comm’rs of Public Schools of A. Co. vs. The County Commr’s, 20 Md. Rep., 439.

“A power exercised by the General Assembly from the adoption of the Constitution to the present time, ought to be deemed almost conclusive evidence of its possession by that body.” A cotemporaneous construction of the Constitution of such duration, continually practised under, and through which many rights have been acquired, ought not to be shaken but upon the ground of manifest error and cogent necessity. State vs. Mayhew, 2 Gill, 468.

The Act of 1860, ch. 211, enacts: “That all marriages heretofore made and celebrated in or out of this State, by and between persons related within the following degrees of affinity, to wit: a man and his niece, or a woman and her nephew, be and the same are hereby confirmed and made valid to every intent and purpose, from the time of the celebration of such marriages respectively; and every such marriage shall be held and taken by all Courts of tbis State to be good and sufficient in law, to all intents and purposes: and this section shall be in force from the day of its passage.5This Act is said to he retroactive in its effect, transcending the limits of legislative power, prescribed by the nature of society, and of government, and unconstitutional because it destroys vested rights. For which various authorities are cited. It is impossible to reconcile all the adjudged cases on this subject. Our province is to ascertain and announce the law of this State, following as closely as possible, the principles and precedents established by our own Courts. There is no clause in our Constitution inhibiting retroactive laws in civil cases. The prohibition of “ex post facto” laws applies only to criminal cases. • “There are many laws of a retrospective character, which may be passed constitutionally, by State Legislatures, however unjust, oppressive or impolitic they may be.” 2 Story Const. Law, sec. 1398, and note 1, and authorities there cited. Although retrospective laws are said to- be generally unjust, we do not concur in their indiscriminate condemnation. A large class of these laws are eminently wise, conservative and necessary, nor are they, because retrospective, essentially judicial. The Acts of 1185, ch. 35, and 1190, ch. 20, repealing certain clauses of the Act of 1711, ch. 12, prohibiting marriages between certain degrees of affinity and consanguinity, confirmed to all intents and purposes the marriages which had in the mean time been made contrary to the Act repealed. The Act of 1860, ch. 211, after a lapse of seventy years, is a legislative exercise of the same healing power. Whether the objects of its exercise in the last instance, were as meritorious as those of the first, is not the part of judicial duty to determine. The subject-matter and the power were the same. If the former were constitutional enactments, the latter must necessarily be so. Marriage, the subject of these Acts of legislation, although it has been tersely called tlie mother, not tbe child of society, is moulded by municipal law. “It is a contract of a peculiar nature, and differing in some respects from all other contracts, so that the rules of law which are applicable in expounding and enforcing other contracts, may not apply to this. It differs from other contracts in this, that the rights, obligations, or duties arising from it, are not left entirely to be regulated by the agreements of parties, but are to a certain extent, matters of municipal regulation, over which the parties have no control by any declaration of their will. They are regulated in many important particulars by the laws of every civilized country, and such laws must be considered as forming a most essential part of the public laws of the country.” Shelford on Mar. and Div., 17. These laws, like those of Divorce, must be viewed “as regular exertions of legislative power,” emanating from the General Assembly from the earliest times. Crane vs. Meginnis, 1 G. & J., 474. Wright vs. Wright’s Lessse, 2 Md. Rep., 448.

The right to confirm, is the necessary corollary of a power to dissolve marriage by divorce. The consequence of which is, incidentally, authority to determine the status of the issue of the marriage.- In this State the Legislature has exercised for three-fóuríhs of a century the most plenary power over the marriage contract. It cannot be predicated of such legislation, because it incidentally affects the rights of property, that it conflicts with indefeasible or vested rights. Heirship and succession are incidents of marriage, and follow its regulation. Where the parties contracting marriage labor under legal disabilities, the contract is liable to be dissolved by the Courts or affirmed by the Legislature. All standing in any degree of relationship are subject to be affected by anything which operates on those they are related to. Their rights are inchoate not vested. The exercise of similar powers by the General Assembly for various purposes, affecting incidentally tbe rights of others retroactively, is shown by the cases cited by the appellant’s counsel, up to a very recent date. Vide Lawrence & Wife vs. Heister et al., 3 H. & J., 371. Dulany & Wife vs. Tilghman, 6 G. & J., 461. From Crane vs. Meginnis, in 1829, to Wright vs. Wright’s Lessee, in 1852, the action of the Legislature in matters of divorce, was judicially recognized as a regular exercise of legislative power, notwithstanding the Act of 1841, ch. 262, had, in the mean time, invested the Chancellor or any County Court of this State as a Court of Equity, with jurisdiction of all applications for divorces, a'vinculo matrimonii. The Act to divorce Jane E. Wright from her husband Samuel J. Wright, was passed without notice to him of the proceedings, and divested him nf his marital rights in the wife’s land. Analogous cases to those already cited, are the special Acts of Assembly, conferring the rights of appeal in pending cases, which have been recognized in various instances, from Davis vs. Calvert, 5 G. & J., 269, in 1831, to the State vs. Northern Central R. R. Company, 17 Md. Rep., 8, in 1861. If it were necessary, numerous instances in our sister States might be added to the cata-logue, establishing the position that such legislation is neither extraordinary, unconstitutional nor unjust; but conservative, essential and salutary, being the only adequate means of healing or preventing inevitable wrongs public and private.

The Regent’s case, 9 G. &J., 365, relied on by the appel-lees to sustain their position, that the Act of 1860 was opposed to the fundamental principles of right and justice inherent in the nature and spirit of the social compact, bears no analogy to the present in any of its features. That was an attempt to abolish a private corporation, and invest another with all the franchises and property of the corporation to be abolished. It was a legislative ouster affecting that particular body, in the nature of a sentence,rather than a law. No charter is violated by the Act in question in this case; it does not exhaust itself upon any particular persons, nor are the fundamental principles of right and justice impaired. The confirmation of defective deeds, imperfect contracts or of marriages contrary to the provisions of pre-existing laws, was not in that or any of the cases cited herein, deemed to be within the constitutional power of the General Assembly; but the exertion of the power in the particular case, was adjudged unconstitutional for the reasons assigned. It is enough to distinguish this from the cases cited by the appellee, that this Act confirms and does not infringe, ratifies but does not divest, quiets the possession and assures the title of children, born in wedlock, by giving it the sanction Of law — “Imres est quem nuptice demonslrant.”

(Decided June 3rd 1864.)

It follows from the preceding views, that the prayer granted by the Court below, assuming that the marriage between Robert and Martha Harrison was void ab initio, and not made valid by the Act of 1860, ch. 2*71, was in our judgment improperly granted, and the judgment below must be reversed. This conclusion being decisive of the action, it is unnecessary to discuss the minor points mooted in the argument of the cause.

Judgment reversed.