Bashaw v. State

• Decision Date: 31 January 1829
• Citation: 9 Tenn. 177
• Parties: BENJAMIN BASHAW v. THE STATE OF TENNESSEE.
• Court: Tennessee Court of Appeals

9 Tenn. 177

BENJAMIN BASHAW

v.THE STATE OF TENNESSEE.

Supreme Court of Errors and Appeals of Tennessee.

January, 1829.

This was an indictment, commenced and tried in the Circuit Court of Davidson County, and brought to this court by appeal in the nature of a writ of error; on the trial in the circuit court, a bill of exceptions was taken, which shows the case as follows: “the attorney-general on behalf of the state, provided, that some time in the year 1797, the defendant, (who is the plaintiff in error in this court) and Sally Cole, appeared in the county of Davidson before Isaac Walton, a justice of the peace of Sumner county, who had licence authorizing the solemnization of the marriage ceremony; and that they then and there, in the county of Davidson, in the presence of said Walton, mutually agreed to take, and did take each other for husband and wife, and that the said Isaac Walton, pronounced them to be husband and wife; that the prisoner, and said Sally lived together, and cohabited as man and wife until some time in 1805, during which time they had children; they then separated, and have not lived together since. That said Sally, for many years past, and ever since the year 1797, has lived in Davidson county, and since the separation, has cohabited with a man by the name of Nowell, and is called by his name, and that said Sally is now living. The defendant, some time in 1827, intermarried in Davidson county, with Sally Williamson, according to the forms required by law.” This was all the evidence in the cause. By consent, the jury returned a verdict against the prisoner, subject to the opinion of the court upon the law arising from the above facts. The question of law was argued on a motion for a new trial made by the prisoner. The court overruled the motion, and was of opinion that the law upon the above facts was in favor of the state, to which opinion of the court the defendant excepted.

J. Collinsworth & Hays, (Attorney-General) for the State; Wm. L. Brown & Cook, for the defendant.

WHYTE, Judge.

The question presented upon this record for the opinion of the court is, whether the evidence adduced in support of the prosecution warrented the conviction of the plaintiff in error of the crime of bigamy.

In support of the conviction it is argued by the counsel for the state, that the common law which is founded on the scriptures, the opinion of the ancient latin fathers of the church, the_____of the general counsel of bishops, &c., & c., from which, together with the civil law, the common lawyers have borrowed almost all their notions of the legitimacy of marriage, no particular form of solemnizing the marriage ceremony was necessary,--that the primary and grand characteristic of the union of the parties being their mutual consent thereto, founded on their respective capacity to give it. This capacity existing, consent was evidence, per verba de presenti which constituted ipsum matrimonium per se: or per verba de futuro, followed by cohabitation.

On the other side, for the plaintiff in error, it was insisted, that marriage is a contract of the highest importance, involving in its consequences, not only the happiness of the parties to it in their individiual and private capacities, but in having a powerful bearing and effect upon society in general, as regarding its morals, good order, peace, prosperity and harmony-- all objects of the highest interest--and, accordingly, it has attracted the notice, and occupied the attention of all enlightened governments. That this course has been pursued by this government, acting upon the above principle of individual and national importance; and, at sundry times, during its existence from its commencement (above a century ago) down to the present time, has made legislative regulations respecting it, as the state of society and changes in government seemed to require. It is, therefore, contended by them, to be extremely difficult to maintain, that the law of marriage, as at the common law before the colonial government of North Carolina had existence, should now be the rule here, on this important subject, non obstanti, the different legislative provisions on the very same subject matter.

It is certainly a correct proposition, not only in theory, but proved by constant practice that every independent community or government has the right to regulate its own concerns; to make what laws it pleases; to abrogate and repeal existing laws heretofore made, and enact new ones respecting the same matters. The constitution of North Carolina in the preamble and first section, and her declaration of rights, section 1 and 2, adopted December 17 and 18, 1776, declared this; and the constitution of Tennessee, in its preamble, and article 1, sec. 1 and 2, adopted 6th February, 1796, did the same. Hence it is the power of these sovereign states, declared in, and pursuant to their constitutions and declarations of rights acted upon in practice from the time of making them in their respective legislatures, and the laws so made, that is to give the rule or rules governing the present case, and not the power of the canon law, the common law of England, or the law of any other community, or country whatever. Upon these principles it will be examined, whether the connexion of the plaintiff in error, or his marriage with Sally Cole in the year 1797, was or was not such a connexion or marriage as, when taken into view with his subsequent marriage with Sally Williamson in the year 1827, constituted the offense of bigamy, and lawfully rendered him liable to a conviction for the same. The legality of the first marriage must therefore depend entirely upon the acts of Assembly of the state of North Carolina, passed before the separation of the state of Tennessee from the state of North Carolina, and the acts of Assembly of the state of Tennessee, passed since that separation. These acts have all been cited and commented upon by the counsel upon both sides; and upon them, on the part of the state, it is argued that they are all affirmative statutes except one clause o?? section in the act of 1776, and that is virtually repealed by the act of 1778, and, therefore, they do not repeal the common law, by which law the marriage with Sally Cole is a valid marriage. On the other side it is argued that these acts of Assembly are introductive of a new law respecting marriage, inconsistent with the common law, superseding it, and establishing, as a consequence, that the putative marriage of the plaintiff in error with Sally Cole is not a valid marriage. The construction of these acts of Assembly, on legal principles, must be had on a view of them taken all together. Lord Mansfield, in the case of the King v. Lansdale and others (1 Burrow's Rep. 447), lays it down that “where there are different statutes in pari materia, though made at different times, or even expired, and not referring to each other, they shall be taken and construed together as one system and as explanatory of each other;” and he instances the laws concerning church leases, those concerning bankrupts and those providing for the poor, as one system, relative to the subject respectively. A short view of our acts of Assembly respecting marriage will, therefore, be taken. The first act is 1715, ch. 1; we know nothing of it in certainty except its title which is: “an act concerning marriages.” It is noted in the oldest revisal of the North Carolina laws, within our reach, Davis' revisal of 1773, as obsolete, and only now noticed by us, as showing that at a very early period after the organization of the colonial government, the subject attracted the attention of its legislature, and was, by them, considered of sufficient magnitude to require legislative interference by act of Assembly. The next act is the 38th ch. of the same year (sec. 15), requiring the registration of all marriages, and imposing it a duty on every married man, to remit to the register a certificate of his marriage, and cause the same to be registered, under a penalty. The next is the act of 1741, ch. 1, entitled “an act concerning marriages;” sec. 1 commences as follows: “For preventing clandestine and unlawful marriages; it is enacted” &c. “That every clergyman of the church of England, and for want of such, any lawful magistrate shall join together, in the holy estate of matrimony, such persons who may lawfully enter into such a relation and have complied with the directions hereinafter mentioned.” Sec. 3 says: “No minister or justice of the peace shall celebrate the rights of matrimony between any persons, or join them together as man and wife, without license first had and obtained for that purpose, according to the directions of this act, or thrice publication of the banns as prescribed by the book of common prayer,”--and in the following clause it says: “If any minister or justice of the peace shall, contrary to the true intent and meaning of this act, celebrate the rites of matrimony,” &c., “he, or they, shall forfeit and pay the sum of £50.” Sec. 6 directs the license to be issued by the clerk of the county where the feme resides, and then only under the rules prescribed, that is, he shall take bond with security in the penalty of £50, that there is no lawful cause to obstruct the marriage for which the license is desired; and in the case of minors, if not heretofore married, the consent of the parents or guardian be personally given before the said clerk, or signified under the hand and seal of the parent or guardian, attested by two witnesses; which being done, the clerk shall write the license or consent as aforesaid, to the first justice in commission of the peace, or such other person as the governor shall appoint. And a license so obtained is declared a lawful license, and no other. And by a subsequent clause, if the clerk issue a license, or make a certificate of license other than directed by the act, he shall forfeit and pay £50....