Commonwealth v. Munson

• Decision Date: 27 October 1879
• Citation: 127 Mass. 459
• Parties: Commonwealth v. Henry J. Munson
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 459

Commonwealth v. Henry J. Munson

Supreme Court of Massachusetts

October 27, 1879

Worcester. Indictment, on the Gen. Sts. c. 165, § 6, for lewd and lascivious cohabitation with Martha A. Eaton.

At the trial in the Superior Court, before Gardner, J., the cohabitation with Eaton at the time and place alleged was admitted by the defendant. The defence was that the alleged parties during all the time of such cohabitation were lawfully married to each other.

It appeared in evidence, and was not contested by the government, that, at a public religious meeting called by the defendant, held at the Advent Chapel in Worcester, on July 12, 1879, at which about fifty persons were present, and at which no magistrate or minister of the gospel was present the defendant occupied the pulpit, gave out a text, talked awhile about repentance, then read the first five verses of the twentieth chapter of Matthew, and then stepped down the aisle, and said Eaton came forward and read from the sixth to the tenth verse of the same chapter; that they then joined hands, and the defendant said, "In the presence of God and of these witnesses, I now take this woman whom I hold by the right hand to be my lawful wedded wife, to love and to cherish, till the coming of our Lord Jesus Christ, or till death do us part;" that Eaton thereupon said, "And I now take this man to be my lawfully wedded husband, to love, reverence and obey him until the Lord himself shall descend from heaven with a shout and the voice of the archangel and with the trump of God, or till death shall us sever;" that the parties then bowed down, and the defendant offered prayer; that there was no other marriage ceremony; that neither party was a Friend or Quaker; that the marriage ceremony was not conformable to the usage or practice of any religious sect; that the parties were of full age, the defendant being a resident of Missouri, and Eaton being a resident of Worcester; that the parties performed this ceremony in good faith as a marriage rite, and believed it constituted a valid marriage; that directly after the ceremony, and during the time covered by the indictment, the parties cohabited together as husband and wife under the belief that they were lawfully married; that before the ceremony was performed, the parties caused notice of their intention to be joined in marriage to be entered in the office of the city clerk of Worcester, and the clerk delivered to them the certificate required by the statute and that the certificate was returned with a statement thereon, signed by the parties, stating that they had been married to each other by mutual public vows.

Upon these facts, the judge ruled that no valid or lawful marriage between the parties had taken place; and instructed the jury that they would be warranted in convicting the defendant.

The jury returned a verdict of guilty; and the judge, being of opinion that the question of law raised in the case as to the validity of the assumed marriage was so important and doubtful as to require the decision of this court, at the request of the parties, reported the case for its consideration. If the ruling and instruction were right, the verdict was to stand; otherwise, the verdict was to be set aside.

Verdict set aside.

J. F. Manning, for the defendant, cited 1 Bishop Mar. & Div. §§ 283-287; Gen. Sts. c. 106, §§ 21, 22; c. 107, §§ 4, 5; Mangue v. Mangue, 1 Mass. 240; Milford v. Worcester, 7 Mass. 48; Parton v. Hervey, 1 Gray 119; Meyers v. Pope, 110 Mass. 314; Flora's case, Quincy, 29, note; Concord v. Goffstown, 2 N.H. 263; Hutchins v. Kimmell, 31 Mich. 126; Dyer v. Brannock, 66 Misso. 391; McCausland's estate, 52 Cal. 568; Meister v. Moore, 96 U.S. 76.

G. Marston, Attorney General, for the Commonwealth.

Gray C. J. Endicott & Lord, JJ., absent.

OPINION

Gray C. J.

In Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the Colony, Province, and Commonwealth; the canon law was never adopted; and it was never received here as common law, that parties could by their own contract, without the presence of an officiating clergyman or magistrate, take each other as husband and wife, and so marry themselves. Milford v. Worcester, 7 Mass. 48, 53. 2 Dane Ab. 291, 301. 2 Winthrops Hist. New England, 43. This clearly appears on tracing the history of the legislation upon the subject; the whole of which, whether repealed or unrepealed, is by a familiar rule to be considered in ascertaining the intention of the Legislature. Church v. Crocker, 3 Mass. 17, 21. Eaton v. Green, 22 Pick. 526, 531. Commonwealth v. Bailey, 13 Allen 541, 545.

As early as 1639, it was "ordered and declared" by the General Court, "that there be records kept of the days of every marriage, birth and death of every person within this jurisdiction." 1 Mass. Col. Rec. 276. Anc. Chart. 43. In 1642, it was enacted that "the magistrates and other persons appointed to marry shall yearly deliver to the recorder of that court which is nearest to the place of their habitation the names of such persons as they have married, with the days, months and years of the same; and the said recorders are faithfully and carefully to enrol such marriages as shall thus be committed to their trust;" and in 1644, every new-married man was required "to bring in a certificate of his marriage, under the hand of that magistrate which married him, to the clerk of the writs," to be recorded. 2 Mass. Col. Rec. 15, 59. Mass. Col. Laws (ed. 1660) 68; (ed. 1672) 130. Anc. Chart. 181.

The requisite of solemnization before a magistrate or other authorized person, as essential to constitute a valid marriage, which had been clearly implied in these statutes, was distinctly expressed in the following statute of 1646: "As the ordinance of marriage is honorable amongst all, so should it be accordingly solemnized. It is therefore ordered by this Court and authority thereof, that no person whatsoever in this jurisdiction shall join any persons together in marriage, but the magistrate, or such other as the General Court or Court of Assistants shall authorize in such place where no magistrate is near. Nor shall any join themselves in marriage, but before some magistrate or person authorized as aforesaid. Nor shall any magistrate, or other person authorized as aforesaid, join any persons together in marriage, or suffer them to join together in marriage in their presence, before the parties to be married have been published according to law." Mass. Col. Laws (ed. 1660) 52; (ed. 1672) 102. Anc. Chart. 152.

In 1656 and 1658, the "commissioners for ending small causes in the several towns where no magistrate dwells" were "authorized and empowered to solemnize marriage between parties legally published;" "and all other commissions in this case are hereby made void." 4 Mass. Col. Rec. pt. i. 255, 322. Anc. Chart. 152. The provision of the St. of 1646, prohibiting persons to join themselves in marriage, except before a magistrate or other authorized person, continued in force throughout the period of the colony charter.

By the Prov. St. of 1692-3 (4 W. & M.) c. 25, "every justice of the peace within the county where he resides, and every settled minister in any town, shall and are hereby respectively empowered and authorized to solemnize marriages, within their respective towns and counties, betwixt persons that may lawfully enter into such a relation, having the consent of those whose immediate care and government they are under, and being likewise first published" as therein directed; and "every justice and minister shall keep a particular register of all marriages solemnized before any of them, and make a return thereof" quarterly to the clerk of the sessions of the peace of the county, to be by him registered. 1 Prov. Laws (State ed.) 61. Anc. Chart. 242.

By the Prov. St. of 1695-6 (7 W. III.) c. 2, § 4, "for the better preventing of clandestine marriages," it is enacted that "no person other than a justice of the peace, and that within his own county only, or ordained minister, and that only in the town where he is settled in the work of the ministry, shall or may presume to join any persons together in marriage; nor shall any justice or minister join any persons in marriage other than such one or both of whom are inhabitants or residents in such county or town respectively;" with more specific provisions as to publication of banns and consent of parents and guardians, and a further provision that any justice, minister or other person offending against this act shall suffer a penalty, and be "forever after disabled to join persons in marriage," and be also liable to an action by the parent or guardian. 1 Prov. Laws, 209, 210. Anc. Chart. 283.

By the Prov. St. of 1716-17 (3 Geo. I.) c. 16, after reciting in the preamble the principal passage above quoted from the act of 1695-6, it is enacted that "the power granted ministers to join persons together in marriage be hereby enlarged, so as that where there shall be no settled ordained minister in any town or precinct, or where the only settled ordained minister of any town or precinct is himself to be married, it shall and may be lawful in such cases for the next settled ordained minister in another town within the same county to join in marriage the minister, or inhabitants of such town or precinct destitute of such settled ordained minister, if such minister or inhabitants desire it, according to the rules prescribed by the laws of this Province for the consummating marriages;" and penalties are imposed on ministers and clerks neglecting to return or record marriages. 2 Prov. Laws, 60. Anc. Chart. 416.

So by an act of 1773 (13 Geo. III.) the authority of each minister of...