Denison v. Denison

• Decision Date: 15 March 1872
• Parties: MARCUS DENISON, Administrator of HENRY C. DENISON, v. GEORGEANA B. DENISON.
• Court: Maryland Court of Appeals

35 Md. 361

MARCUS DENISON, Administrator of HENRY C. DENISON, v. GEORGEANA B. DENISON.

Court of Appeals of Maryland

March 15, 1872

APPEAL from the Orphans' Court of Baltimore City.

The case is sufficiently stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, BRENT and ALVEY, J.

A Stirling, Jr., and I. Nevett Steele, for the appellant.

By the ancient common law a marriage was invalid unless celebrated in the face of the church. Coke Litt., 33 a n. 10; Paynes' Case, 1 Sidf., 13; Foxcrofts' Case, 1 Rolles' Abrid., 359; Del Heiths' Case, cited from Harl. MSS., in a note to the Queen vs. Millis, 10 Cl. & Fin., 550; 2 Bright's Husb. and Wife, App., 369 et seq.; Hayden vs. Gould, 1 Salkeld, 119; Welde vs. Chamberlaine, 2 Shower, 300; Holder vs. Dickeson, 1 Freeman, 95.

The most ancient legislation in England on marriage will be found in the law of Edmund, 10th century--1 Ancient Laws, 257 cited in Beamish vs. Beamish, 9 Ho. of Lords, 312--which, after describing the espousals provided:

8. "At the nuptials there shall be a mass priest by law who shall, with God's blessing, bind their union to all prosperity."

9. "Well is it also to be looked to that it be known that they through kindship be not too nearly allied, lest that be afterwards divided which before was wrongly joined."

This was the state of the law from the earliest time to the time of Queen Anne, when by a dictum, Lord HOLT held that "a contract per verba de præsenti was a marriage, and not releasable." Jesson vs. Collins, 2 Salk., 437 and 6 Mod., 155; Wigmore's Case, 2 Salk., 437.

This dictum of Lord HOLT'S was the origin of all the subsequent opinions expressed by different judges to the same effect. The Queen vs. Millis, 10 Cl. & Fin., 670.

In 1861 the case of The Queen vs. Millis, was affirmed by the unanimous opinion of the English Judges and lords in the case of Beamish vs. Beamish, 9 House of Lords Rep., 274 to 360.

In this last case it was held, that the fact that the bridegroom is himself a clergyman in holy orders, there being no other clergyman present, will not make the marriage valid. Semble, that the decision in The Queen vs. Millis, is not to be applied to a case where the presence of a minister is impossible.

The common law required the presence of a clergyman at a marriage, because:

1st. A religious ceremony had by custom immemorial been superadded to the contract.

2d. The clergyman acted as a trustworthy witness, preserving evidence of and giving notoriety to the contract.

3d. The clergyman had the power to forbid and to prevent illegal and incestuous marriages. Beamish vs. Beamish, 9 Ho. of Lords, 302 et seq.

In The Queen vs. Millis, all the authorities are reconciled upon the theory that a contract per verba de præsenti was an incomplete marriage under the ecclesiastical law, enabling either of the contracting parties to apply to an Ecclesiastical Court, and compel the other, under penalty of clerical censure, to have a marriage solemnized in facie ecclesiæ; and until such marriage was solemnized, dower, curtesy and administration could not be obtained by either party.

Marriages by promise cum copula and per verba de futuro are ecclesiastical figments, and are only known to the common law, as giving the woman a right to an action for damages for seduction in the former case, in the latter either party a suit for breach of promise. 2 Parsons on Cont., 79.

The idea of marriage by cohabitation and repute, arose from a misinterpretation and misapplication of those authorities, where on a collateral issue, evidence of general reputation, cohabitation and acklowledgment when uncontradicted, has been held as sufficient proof of marriage, upon a presumption, that a marriage at some time had been actually solemnized. 2 Parsons on Cont., 77.

The common law required that the religious service prescribed by the church should be substantially performed, and did not nullify a marriage on account of the omission of an immaterial part of the service. Catterall vs. Catterall, 1 Robertson, 580; Catterwood vs. Coslen, 13 Mees. & Wels., 264; Catterall vs. Sweetman, 1 Robertson, 304.

Such being the rule of the common law, determined after a long, patient, laborious and thorough examination of all the authorities by the most eminent legal minds in England, that no marriage is valid unless celebrated by a clergyman of the established church of that country, in holy orders, it follows, that if the people of Maryland are entitled to the common law of England as they are declared to be entitled by Article 3 of their Bill of Rights, and by the judgment of this Court in the case of Harrison vs. Harrison, 22 Md., 487, that such must be the rule of law in force here, except in so far as it has been modified by law, custom and practice.

By the laws of the United States, there is no established church, and it is a source of pride to Marylanders, that early in the colonial history, by the Act of Toleration, perfect freedom of conscience and of religious belief was allowed.

The conclusion irresistably follows, that the rule of the common law has been relaxed and modified in Maryland to the extent of legalizing any marriage solemnized by the ceremony of any religion recognized as lawful. Fornshill vs. Murray, 1 Bland, 479.

Cheseldine's Lessee vs. Brewer, 1 H. & McH., 152, (ejectment,) and Sellman vs. Bowen, 8 G. & J., 54, (a bill in equity for mesne profits after complainant had recovered dower at law,) are cases where the question of marriage was collaterally involved, and uncontradicted evidence of general reputation, cohabitation and acknowledgement was held sufficient proof of marriage.

In the latter case the question of the admissibility of the evidence was not before the appellate Court. See Ray vs. Garrell, No. 149, April term, 1868, recorded in Liber G. E. & J. S. F., No. 1, fo. 90, &c., of " Opinions Unreported."

The Legislature, in prescribing that persons shall marry according to the rites and ceremonies of the religious denomination to which they belong, certainly never contemplated any other kind of marriage than that celebrated by a minister of the Gospel, or attended by some religious solemnity. Code of Pub. Gen. Laws, Art. 60, sec. 4; Act of 1865, ch. 130; Act of 1868, ch. 42, sec. 1; 2 Debates of Constitutional Convention, 1864; Harrison vs. Harrison, 22 Md., 468; Crane vs. Meginnis, 1 G. & J., 474; Wright vs. Wright's Lessee, 2 Md., 448.

The general doctrine prevailing throughout the different States of the Union is, that in those States where there are statutes regulating marriage, their provisions must be substantially complied with, or the marriage will be null.

In no States, except New York and Pennsylvania, can a legal marriage be contracted without a religious or magisterial ceremony. 2 Parsons on Contracts, 74, et seq. Chancellor KENT says: "If the contract be made per verba de præsenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, in the absence of all civil regulations to the contrary"--2 Kent Com., 87. The words italicised were introduced into the text after the decision in the case of Jewell's Lessee vs. Jewell, 1 How., 219, 234, which came before the Supreme Court of the United States, on error from the Circuit Court for the District of South Carolina. The Court below cited the above passage from KENT, from an early edition, and without the important clause italicised, and instructed the jury that this was law. Upon exception and appeal, TANEY, C.J., in giving the opinion of the Court, says: "Upon the point thus decided, this Court is equally divided; and no opinion can therefore be given." The case was decided on other exceptions.

Bishop differs from all other text-writers and authorities on the law of marriage--in regarding marriage as a status and not as a contract. 1 Bishop on Mar. and Div., sec. 3.

The statute regulations of marriage in Vermont are similar to those of Maryland, and the Supreme Court of that State, in referring to the New York authorities, says--"In these, (Fenton vs. Reed, 4 Johns., 51; Van Buskirk vs. Clare, 18 Johns., 346,) and other New York cases, stress is laid upon the fact, that a marriage per verba de præsenti is valid in that State, and also at common law, if followed by cohabitation. This, I think, could hardly be regarded as law in this State, without virtually repealing our statute upon that subject. It certainly has never been so regarded under English statutes, 26 Geo. II, and 4 Geo IV, ch. 76; and I see no reason why it should be here, when it is clearly a dispensation with all the requisitions of the statute upon the subject, wherever that rule, in regard to the law of marriage, prevails, as it does in Scotland, cohabitation as man and wife is marriage; since it implies in the strongest sense, a contract in præsenti to be husband and wife." Northfield vs. Plymouth, 20 Vermont, 591; Compiled Statutes of Vermont, 392, Tit. Dom. Relations.

For a similar doctrine in other States, see Millford vs. Worcester, 7 Mass., 48; Londonderry vs. Chester, 2 N. H., 268, 279; State vs. Kean, 10 N. H., 347; Dunbarton vs. Franklin, 19 N. H., 257; Clark vs. Field, 13 Vermont, 460; Mangue vs. Mangue, 1 Mass., 240; Commonwealth vs. Spooner, 1 Pick., 234; Roberts vs. State Treasurer, 2 Root, (Conn.,) 381; Pearson vs. Howey, 6 Halstead, (N. J.,) 13; State vs. Samuel, 2 Dev. & Bat., 177; State vs. Robbins, 6 Ired., 23; State vs. Bray, 13 Ired., 289.

In Kuhl vs. Knauer, 7 B. Monroe, 130, ( Ky.,) the Court held that while proof of cohabitation and recognition by the parties of each other as man and wife, is for most purposes deemed sufficient proof of...