Buchanan v. Harvey

• Decision Date: 31 October 1864
• Citation: 35 Mo. 276
• Parties: JOSEPH S. BUCHANAN et al., Appellants, v. ADELINE HARVEY et al., Respondents.
• Court: Missouri Supreme Court

35 Mo. 276

JOSEPH S. BUCHANAN et al., Appellants,

v.ADELINE HARVEY et al., Respondents.

Supreme Court of Missouri.

October Term, 1864.

Appeal from St. Louis Circuit Court.

P. C. Morehead, for appellants.

It has been insisted from the beginning by the defendants in error, that the case of Johnson v. Johnson's administrator, 30 Mo. 72, determines this case in accordance with the judgments of the courts below. Col. Johnson had but one wife in the Indian country, a daughter of the Indian chief “Keokuk.” In this case, the defendants in error assume that A. W. Harvey was married to two Indian women at the same time, of the Blackfeet tribe, under the customs of that tribe, and had one daughter by each of them -- the wards of the defendants in error.

It may be conceded on the proof that he cohabited with two Indian women at the same time, of that tribe, some years after 1833, and had a daughter by each one of them. It does not appear when this cohabitation commenced after 1833, at what locality, or whether that tribe had a settled habitation. At page 85 in said case, it is conceded by the court that the instruction of the Land Court is sustained by writers on marriage. “But cohabitation by consent for an indefinite period of time, for the procreation and bringing up of children, that in a state of nature would be a marriage.”

The principle is not resisted; but if he had cohabited with two Indian women at the same time, as in this case, that would have been inconsistent with the law of nature, either in a moral or christian sense. The conclusion of the court had no reference to polygamy. The case cited in Tennessee (5 Humph. 13) had relation only to a man and wife “to live together as man and wife.”

It is a settled principle in England that no law is valid that is not founded on reason. “Upon the law of nature and the law of Revelation, depend all human laws.” The western Indian tribes are not regarded as nations, but are held amenable to the laws of the United States. Their indomitable aversion to civilization precludes the idea of law among them; they have no power to make laws; and if they have no laws they can have no valid customs. Although treaties are made with them, it is upon the principle of political sympathy. The Blackfeet tribe, especially, are a migratory people, without local habitation, receding with the buffalo as civilization approaches. We are not assured by any evidence that these asserted customs exist among themselves, but merely with traders; we are not assured by any evidence that there is such an excess of females among them as to justify the possibility of such customs among themselves. Can these customs be traced back to a period of time beyond the reach of memory? One of the witnesses stated “they were such at that time, 1831.”

The question of permanency, as discussed by the court at page 86, has no bearing in this case. Page 88, the court says: “It is well settled as a general proposition, that a marriage valid according to the law or custom where it is contracted, is valid everywhere.” This principle is well established; but the question is, was there a marriage at all? of which we will say more further on. A marriage in England and valid there, is valid here; but what is called a marriage in Turkey, where a plurality of wives is allowed, is not valid here, because inconsistent with nature and christianity. How could we regulate the law of descents and dower in such a state of case?

As to polygamy, see Sto. Confl. L. §§ 113-14; 1 Black. Comm. 436; 9 Bligh, 112; Bishop, Mar. & D. 201, 89. As to the law of Missouri, “that the issue of all marriages deemed null in law shall be legitimate.” It is upon this question, doubtless, that the defendants in error hope to maintain their proposition. The court says: “Under our laws, upon an issue of legitimacy the issue is limited to the mere fact of actual marriage, and upon this investigation, confining ourselves to the rules of evidence established before this significant change in the law, the jury are bound to make every intendment in favor of the legitimacy of the children not necessarily excluded by the proof. The meaning of this law and of an actual marriage are now necessary inquiries. If the whole clause of the statute is taken together, it may somewhat explain the meaning of the Legislature: “Where a man having by a woman (not women) one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated, and the issue of all marriages deemed null in law shall be nevertheless legitimate.”

The cases referred to by the court, 1 Penrose & W. 452, and 1 Harris & McH. 152, had no reference to polygamy, or to what is termed Indian customs. The Legislature did not mean any such thing as polygamy; they could not, because that was expressly prohibited by statutory penalties repeatedly carried into effect in this State in cases of bigamy. There may be acts of parties which in common parlance may be called marriages, so absurd in themselves as to negative the right to that appellation.

But can there be any such thing as a marriage null in law? The word itself implies legality -- either natural or civil law; without the sanction of law, it can have no existence. It is one of the earliest institutions on earth, and has been held, through all the mutations of society, unchanged in its true signification. There is no word in language so truly defined. “For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh.” (Genesis, ch. 2, v. 24; Matthew, ch. 9, v. 5; Mark, ch. 10, v. 7.) “To avoid fornication, let every man have his own wife, and every wife her own husband.” (1 Cor. 7: 2.) “Marriage was instituted by God himself to prevent the promiscuous intercourse of the sexes, for promoting domestic felicity.” (Web. Dic.) “In law marriage is the conjugal union of one man with one woman.” (New Am. Cyc.)

(See Bishop on Mar. & D. §§ 29 & 45.) It has its relative...