Clayton v. . Wardell

The sole question in this case is, whether the mother of Catharine Ann Clayton, at the time of her intermarriage with George Messerve, was, in fact, the wife of Richard *Page 232 Schenck. It is not pretended that there is any proof of the solemnization of such prior marriage — nor is such proof necessary. A valid marriage may exist without any formal solemnization. By the ancient common law of England, marriage, being regarded as a sacrament, must, to be valid, have been celebrated in facie ecclesiæ. But since the reformation, it has been regarded as a civil contract. And like every other contract, all that is necessary for its validity is the deliberate consent of competent parties entering into a present agreement to take each other for husband and wife. The policy of such a rule may, perhaps, be questionable. The facility with which the contract may be made, where this rule exists, contrasts most singularly with its indissolubility, when made. Indeed, in England itself, this common law rule has not existed for nearly a century. By the marriage act of 1754, all marriages, not celebrated according to the form prescribed by that act, are declared void. But in this state the common law rule exists; and whatever may be thought of its wisdom, the existence of the marriage contract is a fact which may be proved, like any other fact, either by positive evidence of the agreement, or by evidence from which it may be inferred. The sanctions with which religion has, in this and every other civilized country, invested this contract, are not a matter of civil cognizance. The only difference between a marriage celebrated by a formal ceremony, and one not so celebrated, is that, in the former case, the regular celebration is conclusive evidence of the mutual consent requisite to the validity of the marriage, while in the latter it is competent to rebut the proof of the marriage by other evidence. In the case before us, it is not claimed that there is any direct evidence of actual marriage. For the want of such proof recourse has been had to secondary and presumptive evidence. It is attempted to establish the marriage between Schenck and the mother of Mrs. Clayton by evidence of cohabitation; of acknowledgment of a marriage; of the reception of the parties, as husband and wife, by their relatives and friends; and by proof of common reputation. From the testimony introduced for this purpose I think the *Page 233 following facts appear: that Schenck, being the reputed father of a child with which Sarah Maria Youngs, the mother of Mrs. Clayton, had become pregnant, was, on the 22d of November, 1822, arrested as such putative father, under the provisions of the bastardy act, and entered into the usual recognizance to answer to the charge, and that no further proceedings were ever had thereon; that in the early part of May, 1823, Sarah Maria was delivered of a child, which lived about eleven months, and then died; that after the birth of the child, and while it lived, Schenck, for some part of the time at least, cohabited with Sarah Maria, who lived with her mother; that it was understood, among the relatives and friends of Schenck, that they were married, and Sarah Maria was received by them as his wife, and the child as his child; that very soon after the death of the child, as early at least as the summer following, Schenck ceased to cohabit with Sarah Maria, and in June, 1825, an instrument was executed between them, in which they are described as husband and wife, and by which they mutually agreed to a separation. This instrument purports to have been executed by Schenck and Sarah Maria his wife, and also by Joseph List, as the friend of Sarah Maria, who covenanted to indemnify Schenck against any liabilities on her account. In respect to this instrument it may be worthy of notice that it purports to have been executed by both Sarah Maria and List, by making their mark, and that Wood, the subscribing witness who was examined, testified that he had no acquaintance with the parties who executed the paper, nor sufficient recollection of them to know them if he should see them. The witness was but 15 years old at the time the instrument was executed. The hand-writing of Sylvanus Mott, the other subscribing witness, was proved, and it was also proved that he was dead. The instrument, the day after it was executed, was left by Schenck with his sister, for preservation. The principal witnesses relied upon to establish the marriage were Mrs. King and Ida Schenck, both sisters of Schenck. The other testimony on the same side is chiefly upon the question of reputation. Mrs. King and Ida Schenck lived together. The *Page 234 former testified that she first heard of the marriage of her brother at the funeral of another brother, which was on the 22d of February, 1823; that when the child was two or three months old, her brother and his wife came to her house and brought the child with them. This was the first time she had seen her brother's wife, and until then she did not know that her brother lived with Sarah Maria at her mother's. It does not appear that Schenck ever paid any thing for the board of himself, or his wife, or that he ever in any way contributed to her support. On the contrary, it is proved that as well after the birth of the child as before, the alledged wife supported herself, by making segars; that when the child was a few weeks old Mrs. List, the mother's sister, took the child to church and had it christened; and that when it died her husband paid its funeral expenses. Two sisters of Sarah Maria, and John Watson and his wife, also relatives of the family, all testify that they never heard her called by any other name than that of Youngs before her marriage with Messerve. This marriage took place within a month of the time when the articles of separation are alledged to have been executed. She was married by the name of Sarah Maria Youngs. At the time of this marriage she was but sixteen or seventeen years old. These are the principal facts and circumstances in the case, and the question is, whether they warrant the legal presumption of a marriage between Schenck and Sarah Maria Youngs. It was insisted upon the argument that, as the effect of establishing the marriage with Schenck, must be to prove the mother of Mrs. Clayton guilty of the crime of bigamy, such marriage can only be established by direct proof. But I am not prepared to concur in this position. I know it has been said, that upon a charge of bigamy, a marriage in fact, as distinguished from the acknowledgment and cohabitation of the parties, must be proved. (Morris v. Miller, 4 Burr. 2057;Fenton v. Reed, 4 John. 52; The People v. Humphrey, 7id. 314; The State v. Roswell, 6 Cowen, 446.) But this rule, even in the case of bigamy, is far from being well established. What weight the evidence of the admission and acts of the *Page 235 party accused is to have in establishing the fact of a marriage, must depend very much, of course, upon the peculiar circumstances of the case. But I am unable to see why it should be necessary to prove the first marriage by eye-witnesses of the ceremony, or those who heard the marriage agreement. In every other case, the acts and admissions of a party, even though he be accused of a capital offence, are evidence against him. It is not easy to say why such evidence should not be received to prove a marriage. What weight the evidence should be allowed to have, is quite a different question. It may not be sufficient to warrant a conviction, but upon principle, it must be regarded as competent. It should be received for what it is worth. But the more important question in this case is, whether conceding the proof to be competent, it is sufficient to establish the first marriage. Upon the most mature consideration. I have come to the conclusion that it is not. The period during which it is pretended the parties cohabited was very short. The circumstances of that cohabitation, are such as to afford but a slight presumption of marriage. The intercourse between the parties was in its commencement meretricious, and there is perhaps as much reason to believe that their subsequent connection was of the same character as that a marriage had in fact taken place. The legal presumption of marriage arising from mere cohabitation is, at least, weakened by the circumstances under which their connection had its origin. The inference that a marriage must have taken place after the arrest of Schenck is, I think, overcome by the fact, that none of the relatives of either of the parties, although several were examined as witnesses on each side, have mentioned when or where, or by whom, they were supposed to have been married. Mrs. King, a sister of Schenck, whose testimony is perhaps more definite than that of any other witness, never heard of it until more than three months after the arrest; and although residing in the same neighborhood, she never saw the alledged wife of her brother or heard he was living with her, until the summer of 1823. The most that can be said of the conduct of the parties, *Page 236 during the year they are said to have cohabited, (for there is no evidence that their connection continued beyond that period,) is that it was equivocal. It may be accounted for quite as well upon the theory of a meretricious union, as of an actual marriage. The reputation of their marriage seems also to have been divided. The friends of Schenck seem to have understood that they were married. On the contrary, the connection seems to have been regarded by the friends of the alledged wife as disreputable. Schenck does not appear to have been received, or treated by them as her husband; and besides, mere reputation, when admissible at all, is always to be regarded as the weakest kind of evidence. It is never conclusive, except when it is general, and supported by other circumstances. "When the connection was at first notoriously illicit," said Lord Eldon in Cunningham v.Cunningham, (2 Dow. P.C. 482,) "and a change in the character of the connection must be operated, and the means employed for that purpose are such as to leave half the world in doubt; the relations, one half thinking one way, the other half the other; at what time, in what circle could it be said that there was such a habit and repute as raised the presumption that the parties had mutually consented to be husband and wife? He could not admit that mere cohabitation, as man and woman, was a cohabitation as husband and wife?" In this case, the presumption in favor of the legality of the connection is rebutted by the fact, that it was at first illicit. The presumption then was, that having been illicit in its origin, it was likely to continue so. If it was subsequently changed, at what time did it become lawful? There must have been a time when the transition took place. If there was a marriage, no one pretends to know when, or even about when, it occurred. Two sisters of each of the parties, of mature age at the time, and living in the vicinity, have been examined as witnesses, and yet not one of them assumes to say when they began to live together as man and wife. It has been supposed that this new relation was formed about the time of the arrest under the bastardy act. The conjecture may have probability, but certainly has no evidence to support it. *Page 237 Much stress is laid upon the fact that the parties executed articles of separation. I admit there is something singular, and so far as the evidence goes, unaccountable, in this transaction. The parties had in fact separated shortly after the death of their child. It does not appear that they had any intercourse with each other after that time; and yet, a year afterwards, an instrument purports to have been executed, by which the brother-in-law of the alledged wife becomes bound to protect Schenck against liability on her account. By whom, or at whose instance it was prepared, does not appear. If it was in fact executed by the parties by whom it purports to have been executed, about which there certainly is some room for doubt, why indemnify Schenck? why execute it at all? These, and other like inquiries, naturally suggest themselves, in the endeavor to ascertain the true relation of the parties. But as no answer is furnished by the case, I can not regard the mere naked fact of the execution of the paper by the alledged wife, under the circumstances as they appear, as furnishing evidence sufficient to justify the inference of a marriage. And then, against this circumstantial evidence, unsatisfactory and inconclusive as it is in itself, is opposed the strong legal presumption against the commission of crime: a presumption applicable in every case, as well civil as criminal. The value of this presumption is, I admit, somewhat diminished by the fact, that to give it effect, the party in whose behalf it is applied must be left involved in the disgrace of a meretricious connection with Schenck. On the other hand, we know that this was the character of that connection in its origin. The presumption that such connection would be likely to continue, is, at least, equal to the presumption in favor of a subsequent marriage. The most that can be said upon this point is, that there is a conflict of presumptions; and in such a case the rule is, that that must yield which has the least degree of probability to sustain it. Thus, in Rex v. Twyning, (2 B. A. 386,) a wife, within a year after her husband had left the country, married a second time. Here was a presumption, on the one hand, of the continuance of the first husband's life, and, on the other, the *Page 238 presumption that the wife would not commit the crime of bigamy. The latter presumption was allowed to prevail, and that, too, in a case involving merely a question of settlement. (See alsoGreensboro' v. Underhill, 12 Verm. 64; 1 Greenl. Ev. § 35;Math. on Presump. Ev. 27.) Upon the whole, this is my conclusion. George Messerve, the father of Mrs. Clayton, was publicly and by a formal religious ceremony, married to Sarah Maria Youngs, on the 3d of July, 1825. Mrs. Clayton is the issue of that marriage. The burden of proving that, at the time of the intermarriage of her parents, her mother was the wife of Schenck, rests upon those who deny her legitimacy. In my opinion, the proof is not sufficient to establish such prior marriage. The decree of the supreme court should, therefore, be affirmed RUGGLES, HURLBUT and TAYLOR, Js. concurred.