Overseers of the Poor of Newbury v. Overseers of the Poor of Brunswick

[158] The opinion of the Court was delivered by Paddock, J. As it respects the decision of the County Court in quashing so much of the proceedings in this case as relates to the family of Nathaniel P. Ilarriman, the pauper, the Court were correct. The family ought not to have been named, either in the complaint of the overseers, in the warrant to bring Harris man before the Justices, or in the order of removal; and if they were, it was surplusage, and it was well to have it expunged from thei'ecord. But it will be seen, by looking at the 3d section of the statute upon which this prosecudon is founded, (p. 370) that the warrant of removal directs the officer “ to remove and transport such stranger, with his or her family and effects, (if any ho or she have) on the nearest route, to the place of such stranger’s legal settlement, &c.” and in no other place in the act, is the family spoken gf. It inay be remarked, that what is meant in this act by family, are those, and those only, for whose support and maintenance the law obliges a person, whether male or female, to provide : so that no procedure under this statute is intended, nor can it have the effect, to divide and break up families; but on the contrary, the -town which is obliged to support and maintain the principal head of the family, be it male or female, is also obliged to provide for those who have their residence with such principal. This case comes before the Court upon a statement of facts, made up by the parties; which are, briefly, that on the 7th day of Sept. 1807, Ilarriman, and one Lydia Page, an unmarried woman, and who is now his reputed wife, went before a Justice of the peace in the Province of Lower Canada, and there covenanted and agreed, each with the other, to be and remain husband and wife ; of which the Justice then made a record: from which time up to the commencement of these proceedings, they have cohabited together as man and wife, and have four children, all of which are now under age, and live with them — That in June, 1808, Ilarriman and the said Lydia removed from the Province of Canada into the town of Brunswick, where they remained the three succeeding years, gaining a legal settlement therein. Previous to September, 1826, they found their way to Newbury, where they have since resided, but not to gain a settlement. At that time Ilarriman being destitute of property, and the woman sick, he applied to the overseers of the poor of Newbury for assistance, who relieved the necessities of the woman and children. In March, 1825, the Legislative Assembly of the Province of L. Canada, passed an act declaring all marriages which had been celebrated in the Province belore dissenting ministers from th« [159] Church of England, and Justices of the peace, to be legal and valid'in law. There is but one question in the case to be decided, and that is, whether Lydia Page, otherwise Lydia Harriman, is the wife of Nathaniel P. Harriman, so that under the warrant to remove the said Harriman, it being found that his residence was in Brunswick, the overseers of the poor of that town, were obliged to receive and support the said Lydia and her children, as his family. Admitting that the testimony of the woman is admissible to prove that no other ceremonies of marriage have been had between them, other than those before the Justice, had Harriman and his reputed wife remained in the Province, there is no doubt that the effect of the Provincial act of their Assembly, of March, 1825, would have been to legalize the marriage before the Justice, to every intent: for after the usurpation of Cromwell, the British Parliament found it necessary to pass a similar statute, by which (12 Ch. II. c. 33J all marriages solemnized before justices of the peace, during that period, were declared valid. And what difference it shall make, their removing into this State before the passage of the act, in March, 1825, the Court are not prepared to say, but are strongly inclined to the opinion, that the effect is the same as though they had remained ; for the statute is not intended to operate upon the persons, but upon the record of the Justices, and characterize the transactions before them and the ministers, giving a legal effect to that which was not so at the time, by reason of the 26th Geo. II. and carrying info execution the wishes and designs of the parties contracting. But however this may be, the Court do not find it necessary to decide. To marry is one of the natural rights of human nature, instituted in a state of innocence for the protection thereof; and was ordained by the great Lawgiver of the universe, and not to bo prohibited by man. Yet, human forms and regulations in marriages are necessary for the safety and security of community ; but those forms and regulations are to be within the reach of every person wishing’to improve them ; and if they are not, other forms and customs will be substituted ; and such was the case in this instance. Before the days of Pope Innocent, III. solemnization of marriages in Churches was not known. After the agreement toco-habit, the man led the woman to his habitation, which was all the ceremony then in use ; and though by the English law such a marriage would not entitle the parties to those legal privileges they would enjoy if married according to the forms required by their statute, that is, the man to be tenant by curtesy and the woman tc have her dowry, &c.; yet in Hayden vs. Gould, 1 Salk. 119, [160] it was ruled, that a woman and her issue might claim, though the man should not, a legal privilege given by law, when he had not entitled himself to it, by a conformity to the matrimonial law. It must, however, be admitted that great convenience is expe- % 7 ^ A nenced from the celebration of nuptials before constituted authority, for it not only furnishes proof of the best'description, but the preservation of it is directed by statute, and easily obtained when needed. But the law treating the mutual agreement of the parties as the marriage, regulating only the manner and form of celebrating it, and preserving the evidence thereof, admits proof other than a copy of the registry, or record of the magistrate, or witnesses — the declaration of the man or woman, the continued understanding of iriends, and cohabitation, as evidence of the fact. Such was the case in Leader vs. Barry, 1 Esp. Ca. 352. —Read vs. Passer, Peake’s Ca. 230. — Kay vs. Duchesse de Pienne, 3 Camp. 123. — Fenton vs. Reed, 4 Johns. 52, and the celebrated case of Hervey vs. Hervey, 2 Bl. R. 877. It has been contended by the appellees, that the proceeding before the Justice of peace in the Province, did constitute a mar-riageper verba de prcessenti between Harriman and Lydia Page. Of that there is little doubt. It was declared by C. J. Holt, in Jesson vs. Collins, 2 Salk. 437, that a contract per verba de pr asentí was a marriage, namely, Imarry you — You and I are man and wife. And again, he holds similar language in Wigmore’s case, p. 438. And in Fenton vs. Read it was determined by the Court that a contract of marriage made per verba de prcesenii, amounts to an actual marriage, and is as valid as if made in facie ecclesice. And in Reed vs. Passer, Ld. Kenyon says “ that an agreement of marriage between the parties,peí- verba deprasen-tí was ipsum matrimonium.” And as neither our statute, nor that of the 26 Geo. II. declares marriages void which are not consummated according to the provisions of them, no sound reason can be offered why the covenants and agreements of marriage between Harriman and Lydia Page, entered into before the Justice, per verba de prasenti, followed by cohabitation uninterrupted to the time of the order of removal, should not be deemed as valid to every intent as though made before the altar ; especially as it is viewed both in this State and in England in no other light than as a civil contract. — 1 Blk. Com. 433. ' It was a sufficient marrying to bind him to support her, and treat her as his wife ; and cohabiting with her for years, would bind him to support her children. And it follows that the town which is legally bound to support Harriman, in case of poverty, i» bóünd tó provide for all those who have a matrimonial or nat161 '«ral right to be supported by him. But there is another objection to this defence, too formidable to be overcome ; and that is, the long period of time those persons have cohabited together, being more than twenty years, reciprocally discharging every duty, we are bound to suppose, which the relation of husband and wife imposed upon them ; surrounded with a family of small children. Is it our duty — does the law require — does the interest of society demand, or respect for the matrimonial institution permit, that in this sideway manner, the legality of the marriage should be gone into at all? The Court are clearly of the opinion that it cannot. The harmony of the two is not thus to be disturbed, nor the children made liable to be bastardized. Therefore, in pursuance of the agreement of the parties, the order of removal is affirmed, and the town of Newbury recover their costs. Smith and Berry, attornies for appellees. Marsh and Cushman, attornies for appellants. Judgment for appelees.