Denison v. Denison , 35 Md. 361 ( 1872 )

Alvey, J.,

delivered the opinion of the Court.

The first question to be decided in this case arises upon the motion of the appellee to dismiss the appeal. The ground of the motion is, that the record has not been made up as required by law; that the Act of 1867, ch. 373, sec. 3, which provides for taking testimony in the Orphans’ Court of Baltimore city by a stenographer, has not been complied with, inasmuch as the depositions have not been signed by the witnesses who testified, nor by the stenographer, or the presiding Judge of the Court. But in answer to this motion it is enough to say, that the record discloses nothing to indicate to this Court with certainty that the testimony was taken under the authority of the Act referred to. It may, for aught that appears, have been taken in the ordinary way; or, what is more likely, judging from the statement of counsel, it may have been taken under an agreement of the parties, whereby the signatures of witnesses, and of the stenographer and Judge were all waived. The mere fact that in the summary of costs, indorsed on the record, an item occurs for the services of a stenographer, is not such evidence that the testimony was attempted to be taken under and by authority of the Act of 1867, as will justify this Court in regarding it. The motion to dismiss therefore must be overruled.

The case being before us, the record presents questions of great and most delicate interest to society, and which would seem to be presented for the first time for direct adjudication in this State.

The appellee alleges herself to have been the lawful wife of Henry C. Denison, who lately died intestate, and, as his widow, entitled to the one-half of his personal estate; the intestate dying without children.

It is not pretended that there was ever any solemnization of marriage between the appellee and the deceased; but it is alleged by the appellee, that from the 17th of January, 1863, until the death of the intestate, he and she were husband and wife, they having mutually agreed from that time thenceforth to be and regard each other as such. That, in pursuance of such agreement, they cohabited and lived together as man and wife; that the appellee was maintained and supported by the deceased, up to the time of his death, as his wife; and that they both acknowledged, recognized and acted towards each other in all things, as husband and wife, and were known, treated and reputed to be such, among their friends and acquaintances.

Upon proof taken, the Orphans’ Court decided that the appellee had been lawfully married to the deceased, and that, as his widow, she was entitled to share in the distribution of his estate. It is from such decision that the present appeal is taken.

Without any special reference to the evidence, as to whether the allegations of the appellee are fully proved, the first question that presents itself is, whether such marriage as is here set up and relied on, can be maintained by the laws of this State ?

It is contended on the part of the appellee that such marriage is good and effectual at the common law, or rather by the canon law; and that, as we have adopted the common law of England, of which the canon law forms part, this marriage must be sustained, having been contracted by the parties, as it is alleged, per verba de prccsenti. This proposition, on the other hand, is controverted by the appellant, by whom it is contended, that such marriage, even if contracted as alleged, was not valid and binding, because it was not duly celebrated according to the rites of any church, or religious denomination of any kind whatever; and that the common law gives no sanction to any such marriage as that attempted to be established by the appellee.

In order to determine this question, we shall, in the first place, endeavor to ascertain and show what the common law of England required to make a valid and binding marriage, prior to the Marriage Act of 26 Geo. II, ch. 33; and, in the second place, what is required, either by the common or statute law of Maryland, in that respect.

By the canon law of Europe, founded mainly upon the Roman civil law, prior to the Council of Trent, in the sixteenth century, the contract of marriage was regarded as simply of a consensual nature, only differing from other contracts in its being indissoluble even by the consent of the parties. In form, a contract per verba de prcesenti, or a promise per verba de futuro cum copula, constituted a valid marriage, without the offices of a priest, till the decrees of the Council of Trent, which required the intervention of the parish priest to give validity to the marriage. The promise per verba de futuro, when, followed by carnal intercourse, was considered as equivalent in legal effect to the contract per verba de prcesenti. In $he matrimonial law, as administered by the canonist, it was a maxim, consensus, non concubitus facit nuptias ; and this remains the law to the present day in some parts of Europe, where the civil and canon law prevail, and where the decrees of the Council of Trent have not been accepted, — as in Scotland. Dalrymple vs. Dalrymple, 2 Hag. C. Rep., 54.

[ But the civil and canon laws, as such, never had force in \ England. They were regarded and accepted only as part of \ the common or unwritten law. Blackstone, in speaking of 1 the subordinate character of these laws, says, that “ it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some Courts, are only subordinate, and leges sub graviori lege; and that, thus admitted, restrained, altered, new-modelled and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the King’s Ecclesiastical Law.” 1 Com., 84. And so Professor Wooddesson, in his Lectures on the Laws of England, (Led. 5, p. 78,) says: “Many of our present ecclesiastical laws are undoubtedly of foreign extraction, and some are entirely of English origin. But now they all alike depend, as to their general binding authority, on the same foundations as the whole body of our English laws, immemorial custom, and express Act of Parliament.” The decrees of the Council of Trent, however, were never accepted or recognized to be of any force whatever in England.

The civil and canon laws, therefore, have no operation in England, except only as they may have been incorporated into the system of the common law; and in ascertaining what Avas the laAV of England in regard to the mode and manner of contracting marriage prior to or independently of the marriage Act of 26 George II., passed in 1753, we do not appeal to the civil or canon Iuav as such, but to the common laAV as a system peculiar to England and her institutions.

What then, by the law of England, prior to the marriage Act, aahs the effect of an engagement of matrimony, such as is alleged to have been entered into by the parties hero, merely per verba de prcesenü f or, in other Avords, a contract of present marriage, Avithout any. solemnization or celebration whatever ?

We can best ansAver this question by resorting to and quoting from some few standard authorities, Avhich have been approAmd and repeatedly relied on by all the highest Courts in England, as containing a true and correct expression of the laAV.

Perkins, an author of high repute, who wrote in the time of Henry Will., in his Treatise on the Laws of England, sees. 194, 195, 306, stated it as unquestionable law, that after a contract of marriage between a man and a woman, they were not one person in law, inasmuch as in case of the woman’s death before the marriage solemnized between them, the man to whom she was contracted should not have her goods as her husband. And so again, he says, that if a man, seized of land in fee, make a pre-contract of matrimony with J. S. and die before the marriage is solemnizad, she shall not have dower, for she never Avas his wife.

Swinburne, an author of the time of Queen Elizabeth, in his Treatise on Espousals, see. 17, says: “ Spousals de preesenti, though not consummate, be in truth and substance very matrimony. Although by the common law of this realm, (like as it is in France and other places,) spousals, not only de futuro, but also de prcesenti, be destitute of many legal effects wherewith marriage solemnized doth abound, whether we respect legitimation of issue, alteration of property in her goods, or right of dower in the husband’s lands.” And again he says: “ Other, effects there be of spousals, whereof some respect the issue or children begotten before celebration of the marriage betwixt those which have contracted spousals, and some have relation to their lands and goods. Concerning their issue, true it is that by the canon law the same is lawful; but by the laws of this realm, their issue is not lawful, though the father and the mother should afterwards celebrate marriage in the face of the church. Likewise concerning lands, by the canon law the foresaid issue may inherit the same; but it is otherwise by the laws of this realm, for, as the issue is not legitimated by subsequent marriage, no inore can he inherit his father’s land; and as he cannot inherit, no more is she to have any dower of the same lands, for whereas, by the laws of this realm, a married wife is to have the third part of her husband’s lands, holden in fee-simple or fee-tail, either general or special, for her dower after her husband’s death, during her life, so that she be above the age of nine years at her husband’s death, yet, a woman having contracted matrimony, if the man to whom she was betrothed die before the celebration of the marriage, she cannot have any dower of his lauds, because as yet she is not his lawful wife, at least to that effect. Concerning goods, the like may be said of them as hath already been spoken of lands, that is to say, that although by the civil and canon laws, where the man doth gain any of the woman’s goods, or the woman gain any of the man’s goods, by reason of marriage, spousals de prcesenti or de futuro, consummate with carnal knowledge, have the same effect as hath matrimony solemnized, yet by the laws of this realm it is otherwise; so that' neither spousals de prossenti, neither spousals de futuro consummate, do make her goods his or his goods hers; and hence it is that a woman contracted in matrimony, dying before the celebration of the marriage, may make her testament, and dispose of all her goods at her own pleasure, which after solemnization of the marriage she cannot do without his license and consent. And on the other side, the man dying intestate before celebration of the marriage, the woman to whom he was betrothed surviving cannot obtain the administration of his goods as his widow, which otherwise) the marriage being solemnized, she might do. And the like I read to be observed in divers other countries, as in France and Saxony, where neither he nor she gain any part of the other’s goods by being affianced, unless the marriage be solemnized, if not consummate also.”

The principle stated by Perldns and Swinburne, as to the inchoate nature of the marriage contract per verba de preesenti at the common law, is distinctly recognized by Lord Hale, in a manuscript note, which was incorporated by Mr. Hargrave among the notes to Co. Litt., 33 a.

This distinction between the common law of England and the canon law of Europe, unaffected by the decrees of the Council of Trent, as to the force and effect of the contract of marriage per verba de preesenti, has been very distinctly recognized to exist by the most distinguished Judges of the Ecclesiastical Courts of England. In the case of Scrimshire vs. Sarimshire, 2 Hag. C. R., 395, a cause for the restitution of conjugal rights, decided in 1752, by Sir Edwakd Simpsox, that learned Judge, in declaring against the legality of the marriage in that ease, said: “And I apprehend, unless persons in England are married according to the rites of the Church of England, they are not entitled to the privileges attending legal marriages, as thirds, dower, &c.” So, in the case of Dalrymple vs. Dalrymple, before referred to, Sir William Scott, in the course of the celebrated judgment delivered by him in that case, involving the marriage law of Scotland, as distinguished from the law of England, after citing Swinburne in support of his positions, said, that “ the common law had scruples in applying the civil rights of dower and community of goods and legitimacy, in the cases of these looser species of marriage,” meaning the marriages recognized by the civil and canon law, as it prevailed in Scotland, unaffected by ecclesiastical decrees.

Perhaps the law is found nowhere better or more cleaxdy stated than in Park on Dower — a very learned and reliable authority. He says, page 8, that, “ By the ecclesiastical law, as it stood previous to the Marriage Act, (26 George II., C., 83,) and as it still stands as to cases falling within the exceptions of that Act, the existence of matrimony involved a twofold consideration; comprising, within that general name, tire distinct facts, 1st. the espousals, or pex-sonal contract between the parties to become husband and wife; and, 2dly. the celebx'ation of that contract in facie ecclesice. The espousals, or mati’imonial contract, which, though requix-ing no set forxn or cerexnonial, was the substance or bond of the nuptial relation, was of two kinds, viz: per verba de prcesenti, or per verba de futuro. The former of these, in the contemplation of the ecclesiastical law, axnounted to very matrimony, the contract being indissoluble by any agreement of the parties; and rendering any subsequent marriage of either of them with any third person absolutely void. But though espousals, or affiance, as it is sometimes termed, was thus the very substance of matrimony, and even by the temporal lawyers, the terxns affiance and marriage were often promiscuously used, yet it . does not seem to have been allowed that espousals alone, unaccompanied by celebration, should confer the civil rights of dower or legitimacy; but to obtain these temporal advantages it was requisite that the contract of matrimony should be celebrated in the face of the church. And though in oxie case a woman who had made a contract of marriage per verba de prcesenti, but whose mari’iage had not been celebrated till after the alienation of the husband, recovered her dower upon the ground that the alienation of-the land by the husband ixx the interval between a sentence of the Ecclesiastical Court for execution of the contract, and the celebration of matrimony pursuant to that sentence, was a fraudulent alienation, quoad the wife, yet this recovery was reversed coram rege et concilio. because neither the contract nor the sentence was a marriage by the temporal law, and so the husband had no seisin during his marriage with the demandant.” The author cites the note of Lord Hale, to Co. Little 33 a.

From all the common law authorities it would appear that the contract per verba de preesenti, or per verba de futuro cum copula, could be carried into effect and execution by the Ecclesiastical Courts. But until such contract was sanctioned by religions ceremony, duly performed, the marriage was incomplete, and did not confer the civil rights incident to the married state.

. In 1843, the celebrated case of Reg. vs. Millis, 10 Cl. & Fin., 534, involving the legality of a marriage not celebrated according to the rites of the Church of England, was brought into the House of Lords, on appeal from the Queen’s Bench in Ireland. It was a case to which the Marriage Act of 26 George II did not apply. The appellee, Millis, having contracted two marriages, and being indicted for bigamy, the question was whether the first marriage was legal and complete, not having been celebrated according to the rites of the Church of England, to which the accused belonged. The case was most elaborately argued, both at the bar and by the Judges who participated in the decision. All the learning upon the subject was fully developed and illustrated. The opinion of the Judges of England was taken, and by their unanimous opinion, as delivered by Chief Justice Tindall, it was declared “ that by the law of England, as it existed at the time of the passing of the Marriage Act, a contract of marriage per verba de praisenti was a contract indissoluble between the parties themselves, affording to either of the contracting parties, by application to the Spiritual Court, the power of compelling the solemnization of an actual marriage; but that such contract never constituted a full and complete marriage in itself, unless made in the presence and with the intervention of a minister in holy orders.” The judgment of the Court below being against the validity of the first marriage, and the law Lords being equally divided in opinion, the rule “ semper preesumitur pro negante” applied, and judgment was affirmed.

The same question, but in a different form, was again presented to the House of Lords in 1861, in the case of Beamish vs. Beamish, 9 H. L. Cas., 274; and by the unanimous opinion of the Judges and the law Lords who heard the case, the decision in Beg. vs. Ifillis was reaffirmed. In these cases will be found all the learning upon the subject of what is called canon law marriages, as distinguished from marriages celebrated with religious solemnity.

Such then being the law of England upon this subject, prior to and independently of the Marriage Act of 26 George II, Avhich was never adopted in this State, in what does that law differ from the law as it has heretofore existed and still exists, in this State?

It is true the common law of England has been adopted by the people of this State; but only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions. The ecclesiastical polity of England forms no part of the common law as we have adopted it. We have in our system no tribunal, as in England, clothed with power and jurisdiction to enforce the solemnization of marriages between parties contracting per verba de preesenti. Unless,' therefore, there be something in the law of this State, apart from the common law of England, to render such contracts valid without solemnization, it follows, necessarily, that they can, at most, only be valid to the extent that they are good at the common law without solemnization; and, as we have seen, such unsolemnized contracts are incomplete, and are not effectual to confer legitimacy upon the issue, nor the rights of property upon the parties, — a right that is attempted to be enforced in this case.

But is there any principle or provision of law peculiar to this State, that would render valid and effectual the marriage here set up, so that it would confer the rights of property and carry the other legal incidents of a valid marriage? We know of none. On the contrary, we think we are safe in saying, that there never has been a time in the history of the State, whether before its independence of Great Britain or since, when some ceremony or celebration was not deemed necessary to a valid m.arriage. In the early days of the province it was not absolutely necessary that a minister of religion should officiate, — a judge or a magistrate could perform the ceremony, — but still, in all cases, some formal celebration was required. Ad 1715, eh. 44, sec. 24. The whole subject, was particularly regulated by the Act of 1717, eh. 15, so far as the members of the Church of England were concerned. Persons of other denominations were allowed to be married according to preexisting law. But these acts clearly show that no such marriage as that here alleged to have been contracted was ever contemplated by the Legislature, or was ever supposed for a moment to be good. The Act of 1777, chap. 12, concerning marriages, and which forms Art. 60, of the Code, plainly indicated the understanding of the Legislature to be that no marriage was to be thereafter good and valid, unless celebrated by some religious rites and ceremony. It expressly provided that the rites of marriage should not be celebrated by any person within this State, unless by some ordained minister, or in such manner as was used and practised by the Society of Quakers. It moreover provided that no person within the State should marry without first obtaining a license, to be directed to a minister or other person qualified by law to celebrate marriage in the State; or, until after banns .published in some house of religious worship, or by a minister, as therein directed; and it prescribed a penalty upon parties going out of the State to be married contrary to the provisions of the Act. Why this latter provision, if valid marriages could be contracted in the manner contended for by the counsel for the appellee ?

It is true, the Act contains no express prohibition or declaration of absolute nullity of marriages contracted per verba de prcesenti; but it is plainly to-be perceived that such marriages, if allowed, would contravene the spirit and policy of the Act. The implication from the provisions of the Act are exceedingly strong against such marriages, and the practice and custom -of the people of the State have been so universally in conformity with what would appear to have been the policy and requirement of the law, that such custom has acquired the force and sanction of law; even though a question could be made as to the technical construction of the Act itself. Besides, as we have seen, an unsolemnized contract of marriage, at the common law, is inchoate merely, or incomplete, being ineffectual to confer many of the most important rights of the matrimonial state ; and to supply the defect of solemnization, positive law was required. Such positive law has never been provided, and, consequently, a marriage contracted in this State merely per verba de prcesenti, or per verba de futuro cum copula, lias no sanction in our law, whatever may be the law upon this subject elsewhere. To constitute lawful marriage here there must be superadded to the civil contract, 'some religious ceremony. The law, however, does not prescribe the form, nor according to the rites of what Church the marriage shall be celebrated.

The case of Cheseldine vs. Brewer, 1 H. & McH., 152, decided in 1739, relied on by the appellee, is not entitled to the authority attributed to it. It was a case occurring at the Assizes for St. Mary’s County, and it is not shown by what Judges it was decided, nor upon 'what ground the decision on appeal proceeded. It would appear that the question raised was simply as to the effect of evidence to give rise to the presumption of legal marriage. The case is very shortly and imperfectly reported, and there is nothing in it to give it the force of authority.

So far as we are informed, this is the first instance in which a marriage contract of the nature of the one here set up, alleged to have been made in this State, has ever been attempted to be maintained, as constituting a valid marriage, in . any of our Courts. These loose and irregular contracts, as a general thing, derive no support from morals or religion, but are most generally founded in a wanton and licentious cohabitation. Hence the law of the State has given them no sanction.

(Decided 15th March, 1872.)

In this case, however, if the law were different from what it is, the claim of the appellee could not be sustained. The appellee is objected to as an incompetent witness, and without her testimony, the evidence is insufficient to prove clearly the alleged marriage. The other alleged contracting party being dead, and this being a controversy with his administrator, the appellee is clearly incompetent under the Act of 1864, as modified by the Act of 1868. The appeal being from the Orphans’ Court, exceptions to the admissibility of evidence or the competency of witnesses are not required to be taken in the Court below, but may be taken and insisted on in this Court. Stewart vs. Pattison, 8 Gill, 46. In no view therefore could her pretensions be supported.

The decision of the Orphans’ Court will be reversed, and the cause remanded that the petition of the appellee be dismissed.

Order reversed and

cause remanded.

Mote. — Judges Grasox", Miller, and Robixson who did not sit at the hearing of the aforegoing case, have directed the Reporter to say, that having considered the questions involved, and united in the consultation with the other Judges, they concur in the opinion of the Court.