Dickerson v. Brown , 49 Miss. 357 ( 1873 )

Taebell, J.,

delivered the opinion of the court;

Susan Dickerson and Oliver Dickerson, complainants, filed their bill óf complaint in the chancery court of Coahoma county, in July, 1871, against W. N. Brown and Mary Ann Dickerson, setting forth that the complainants are the children and heirs at law of L. P. Dickerson, deceased, late of said county, who departed this life, February 2,1871, leaving a large real and personal estate, particularly mentioned in the bill; that Mary Ann Dickerson, one of the respondents, is the mother of complainants ; that their father, said L. P. Dickerson, and mother, said Mary Ann Dickerson, “ were never joined in the bonds of matrimony by any ministerial performance of any marriage ceremony, because, at the time when their intercourse commenced, marriage between a white man and a colored woman was prohibited by law, but that their father loved their mother with all the ardor and devotion of a irue lover, and while the laws of the State forbid the solemnization of the marriage rites between them, they were married in heart and by the laws of nature and of love ; that their father and mother lived and cohabited together as husband and wife; that the complainants were the fruits of this union, and were always recognized by their father as his children, and they lived with him and their mother, and continued to honor and obey him as their father until his death ; that the intercourse between the father and mother of complainants began in 1855, and continued until his death; that he never attempted to marry any woman of his own color; that he remained true to .his love, and when the bonds of slavery were stricken from their mother, and when the new constitution of the State proposed and legalized all such marriages of love, by declaring that all persons who have not been married, but are now living together and cohabiting as husband and wife, shall be taken and held, for all purposes in law, as married, and their children, whether born before or after the ratification of this constitution, shall be legitimate; their father and mother continued to live together as before, until the ratification of the constitution; that their father joyfully embraced this opportunity of doing justice to her who had been so many years the partner of his bosom, and to the .children of his loins; that after he had seen the provisions of the constitution., and Imew the effect of a continuance of his intercourse with their mother, he rejoiced that a public ceremony of marriage would be unnecessary; that he could then, in the. quiet and unobtrusive manner legalize his intercourse with their mother into matrimony; that they continued to live together and cohabit as husband and wife, until the new constitution was ratified; that a brother of their father and one W. N. Brown, have obtained possession of all the personal property of their father, and have also obtained an order to work the plantation, and are working the same ; that the bond of the administrator is insufficient; that the widow is entitled to dower ; and that the administrator has sold a crop of cotton, etc., and the bill praj^s for a discovery as to how much and what kind of property has come to the hands of the administrator, belonging to the estate, and what disposition he has made of it; that the administrator be required to give additional security on his bond ; that a receiver be appointed ; that restitution of the property, after payment of debts, be made ; and for general relief, etc.

The respondent, Brown, appeared and demurred to the bill, stating the following grounds therefor :

1. The complainants do not show that they are the heirs of L. P. Dickerson.

2. J. 0. Dickerson, referred to in the bill, is a necessary party thereto.

3. Because a discovery is sought before the expiration of six months after the grant of administration.

4. Mary Ann Dickerson is improperly made a party.

The first, second and third grounds of demurrer were sustained, and the bill dismissed. From that decree this appeal is prosecuted. The decree sustaining the demurrer and dismissing the bill, constitutes the basis of error. A somewhat novel case is thus presented, arising out of an anomalous condition, though its solution is regarded as simple. In its consideration, the views of those learned in this branch of the law have conduced to no uncertain or doubtful result.

The American doctrine undoubtedly is, that the relation of husband and wife originates in contract, which, when executed, imposes upon the parties new relations to each other and to the public. In some respects, this contract is unlike all other contracts, particularly in this, that it is indissoluble, save in the mode pointed out by statute. 1 Bishop Mar. and Div., 272. Marriage is hence considered a civil contract. 1 Bish. M. andD., 19 ; and may be entered into by parties of suitable age and mental capacity, by mutual agreement or assent. 1 Bish. M. and D., 121, 272, 279. The doctrine is considered established, that a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity. Ib., 283, 284. Chancellor Rent, Judge Reeve, and Prof. Greenleaf, in their text-books, have considered clerical intervention to be unnecessary at the common law; and this, says Bishop, may well be deemed the American doctrine. Ib., 279 ; 2 Kent, 87; Reeve Dom. Rel., 195, et seq.; 2 Greenl. Ev., § 460.

Repeating the foregoing rule in slightly different language, Bishop, vol. 1, § 289, says: “ No particular form of words, therefore, is essential to the solemnization of marriage, unless the statute not only requires the words to be used, but declares the marriage to be null where they are not used.*’

Referring to statutes requiring a license and other ceremonies, it has been held, that “ these directory provisions, though prohibitory, and even penal with respect to the officers, have not been regarded as affecting the validity of a marriage otherwise legal.’* 1 Bish. M. & D., 284; 17 B. Monroe, 193; 2 Watts, 9; 5 Rawle, 209. And this is believed to be the correct rule.

With reference to the consent necessary to the consummation of marriage, it is said, “ nothing more is needed than that, in language which is mutually understood, or in any mode declaratory of intention, the parties accept of each as husband and wife. And Swinburne lays down the doctrine that, if the words do not of their natural meaning, or by common use, “ conclude matrimony,” yet, if the parties intend marriage, and their intent sufficiently appears, “ they áre inseparably man and wife, not only before God, but also before men.” 1 Bish. M. and D., 229. And this “ consent may be either verbal or written; and where there was no ceremony, but fhe parties merely lived together as husband and wife for many years, they were held to be, in law, married.” Ib., Hicks v. Cochran, 4 Edw. Ch. 107.

A maxim of the civil law, equally also of the ecclesiastical, of the common, indeed of all law, is consensus non concubitus,facit matrimonium, (consent, not cohabitation, makes marriage.) Hence, when parties, capable of intermarrying, agree to present marriage, the matrimonial relation is made thereby complete. 1 Bish. M. and D., 228. If, practically, a man and woman recognize each other as, in substance, (to use an expression which at least can be understood), husband and wife, though they attempt to restrict the operation of the law upon their relation, the law should hold them — public policy requires this, the peace of the community requires it, the good of society demands it — to ■be married persons, unless some statute has rendered the observance of some form of marriage necessary. Ib., 225.

Divested of verbiage and figurative language, the bill in this case avers, substantially, the relation between the parents of the complainants of husband and wife, wanting only formal or ceremonial solemnization, a desire for its existence, and rejoicing that the new constitution would legalize their intercourse and legitimatize their children. Mr. Bishop, vol. 1, § 12, says: “The institution of marriage, commencing with the race, and attending man in all periods, in all countries of his existence, has ever -been considered the particular glory of the social system. It has shone forth in dark countries and in dark periods of the world, a bright luminary on his horizon. And but for this institution, all that is valuable, all that is virtuous, all that is desirable in human existence, would long since have faded away in the general retrograde of the race, and in the perilous darkness in which its joys and its hopes would have been wrecked together.” Marriage, then, says Mr. Bishop, is to be cherished by the government, as the first and choicest object of its regard. Pursuing this subject, he states this doctrine: ■“ Therefore, every court, in considering questions not clearly settled or defined in the law, should lean toward this institution of marriage; holding, consequently, all persons to be married, who, living in the way of husband and wife, may accordingly be presumed to have intended entering into the relation, unless the rule of law which is set up to prevent this conclusion is distinct and absolute, or some impediment of nature intervenes.” This proposition is indeed sustained in part by the well recognized maxim, semper prmsumitur pro matrimonio (the presumption is always in favor of marriage), a maxim too often practically overlooked by our tribunals; but,.further than this, in all cases the presumptions both of law and of fact should be carried to the very verge to uphold a marriage, where marriage was meant by the parties. 1 Bish. M. and D., § 13. This doctrine is further enforced by the declaration, founded in truth, if not very truth itself, that marriage is “ a civil institution, the most interesting and important in its nature of any in society.” Marriage per verba deprcesenti is illustrated by text-writers thus: Where the man says to the woman “I do take thee to be.my wife,” and she replies, “Ido take thee to be my husband.” Swinb. Spousals, 2d ed., 8 ; 1 Bish. M. and D., 227. And the same author says, that “ any sign of assent is sufficient.” 1 Bish. M. and D., 288. In the case at bar, the bill, in effect, avers a marriage per verba de prmsenti, legal and effectual for all purposes, as the record now stands. The doctrine seems to be, that, though ignoring the directions of the statute, and though disregarding all forms and ceremonies, the law should make persons married who intend marriage. And this the constitution of our State has adopted as the organic law. All others, outside the class named, are in illicit, meretricious, or criminal cohabitation. Const., art. 12, § 22.

The State, says Bishop, will cause its citizens to assume the matrimonial status only where they consent to assume it. 1 Bish. M. and D., 12. “ We have seen in the foregoing discussions that through all the law of marriage, runs the principle which puts it in the power of parties to assume or not', at their own election, the marriage status, while the status is imposed upon no one who does not accept it voluntarily.” Ib., 121. Indeed, no marriage is valid without consent, however consummated. Ib., 93, 94, 218, 267. Consent is the essence of marriage, without Avhich'it cannot exist. Ib., 94. In the absence of consent, the status of marriage is never superinduced by any government. Ib., 218. The law compels no one to assume the matrimonial status, because marriage requires for its constitution the mutual consent of the parties, which consent is the contract. Ib., 218, and cases there cited. The marital relation, or status, is created by contract; 1 Bish. M. and D., 3, 5, 7, 8, 19, 279, 280, 282; and this contract may be written or verbal, in words or by acts from which it may be implied. Consent is essential, but no formal contract, assent or ceremony'is necessary to its creation. Without consent, no statute or organic law can create this relation; and, when once created by the agreement, assent or acts of the parties, the relation cannot be dissolved save by due course of law. Ib., 272. A, furthér most important deduction and warning is stated by Mr. Bishop, viz.: That parties occupying the status of husband and wife, legal and binding, until dissolved by due course of law, by enter-ring into other matrimonial relations, subject themselves to. prosecution for bigamy. Ib. 272 and cases there cited.

The arguments of counsel embrace a broad field, and discuss numerous points, as might be expected in a new and novel case. The briefs and authorities cited have been examined with care, and the conclusions reached will be presently stated.

The constitutional provision under which this arises is as follows : “ All persons who have not been married, but are now living together, cohabiting as husband and wife, shall be taken and held, for all purposes in law, as married, and their children, whether born before or after the ratification .of this constitution, shall be legitimate, and the legislature may, by law, punish adultery and concubinage.” Const. of Miss., art. 12, § 22.

This provision, in terms, recognizes a distinction betAveea those living together, though unmarried,, yet “as husband and Avife,” without formal solemnization, still, under an. agreement, or assent, in terms or by implication, of marriage; or that the parties were, in good faith, observing towards each other the relations of husband and wife, either under an agreement of such a union, or with a desire to assume to each other, honestly, that relation, on the one hand; and on the othei', those living in adultery and concubinage, which the legislature may, by law, cause to be prosecuted and punished. And this distinction, it is believed, has been shown to be the doctrine of the text writers. In regard to the evil to be remedied by this constitutional provision, it is not necessary to go outside the record in pursuit of the objects of its operation. And this leads to the observation that the law recognizes no distinction on account of color. Neither can the amount of property involved enter at. all into consideration. The moral status of the people is of paramount importance in all intelligent governments. Hence, the object of the constitutional provision under review may be assumed to have been in the interest of all. classes — to arrest and correct wide-spread demoralization; to compel a line of demarkation between those in good faith having created or desired to create the marital relation, though thus cohabiting without the usual nuptial ceremony, and those cohabiting without any such purpose; to distinguish these classes by declaring one to be known and recognized as¡ husband and wife, and their children legitimate, and by separating the other for prosecution as criminals against society and the State. The grand and most desirable object of this constitutional provision, undoubtedly, was to put, a stop te meretricious cohabitation, and to induce, all, or as many as possible, of this class, as well as those “cohabiting as man and wife,” without formal marriage, to enter formally and publicly into the marital status; a consummation of incalculable importance to the welfare of the State.

With the adoption of the present constitution, former impediments to marriage between whites and blacks ceased, so that that question does not enter into the controversy. As a question of policy or propriety, people may differ, but this is a view of the case which the court cannot entertain. They can only declare legal rules. Matters of taste and propriety, like this, the people must determine for themselves, within the established laws.

The labored and able, arguments of counsels, that the provision of the constitution referred to, should be held to apply to the colored population alone, have not been overlooked. They state to us, in support of this construction, as a fact, that, as slaves, informal marriages were universal, resulting in numerous offspring. On the other hand, we were told that cases like the one at bar, were not altogether unfrequent. It is sufficient, that there is one case of this kind, within the plain letter and spirit of the constitution. The provision is plainly for all cases, black, white or mixed, within its plain letter. In effect, this court is asked to declare one rule, or to hold, that we have one constitution for the whites, and another for the blacks, a distinction precluded by recent events.

But, it is questionable, if the statements of counsel are judicially before us; further than that, we have a large colored population, lately slaves, now free, and in all respects equal before the law. It is believed, and so held, that the constitution, in its letter and spirit, applies, and was intended to apply, to all classes, “ without regard to race, color or previous condition of servitude.”

The right of parties in this State to contract marriage, without formal or ceremonial solemnization is understood to be settled beyond question; 12 S. & M., 9; 27 Miss., 783 ; 31 ib., 211; ib., 367; ib., 547; 39 ib., 745; 40 ib., 56; ib., 349; though it is otherwise in some of the States. Dennison v. Dennison, Md. Court of Appeals, 1871. Our statute does not in terms forbid it; and hence, such a marriage is lawful. Cases, supra, and 1 Bish. M. and D., 225, 283, 284.

It is, however, unnecessary to pursue this discussion further It is clearly the theory of the text writers, that the constitutional provision and review, can conclude marriage between those only, who, by agreement, express or implied, had created and were occupying the relation of husband and wife, and such cases-it not only sanctioned and consummated, but legitimated the offspring of previous intercourse. If, according to the doctrines of the authorities, such constitutional action was unnecessary, nevertheless, it was expedient and wise. It legitimated offspring and settled a rule, which could scarcely be confided to legislation with the certainty of satisfactory solution. It cannot fail to diminish what is understood to be a great evil by inviting attention thereto, and by its persuasive influence. It armed the legislature with power to fight the evil by necessary enactments, and it will be found to be an aid and guide to the judiciary in the disposition of cases arising out of these cohabitations, whether as husband and wife, or otherwise.

In the view entertained of the questions involved, and in the present attitutude of this case, it is not material to review at any length, the adjudications on marriage, per verla ele frmenti. These cases are numerous, and many of them are both interesting and novel. Their present consideration might be essential, but for the constitutional provision of our State. Upon the evidence, their examination will very likely become necessary, as it wdll then be more pertinent. As already suggested, the constitution has relieved the legislature and the courts to a great extent, by its primary rule, so that this discussion has in view, mainly, the scope and intent of the organic law, and the indication of rules for its practical enforcement.

The conclusion is, that if these parties were “cohabiting as husband and wife,” at the time of the adoption of the present constitution, and if, with a knowledge of its provisions, they mutually assented to the relation, then their marriage was consummated and their children legitimated. The question involved thus becomes one of fact to be determined accordingly.

The decree is reversed; demurrer overruled; and cause remanded, with leave to answer in forty days from this date.