Harrison v. State ex rel. Harrison

• Decision Date: 03 June 1864
• Parties: MARTHA HARRISON, GEORGE HARRISON AND OTHERS v. THE STATE OF MARYLAND, AT THE INSTANCE AND FOR THE USE OF COLUMBUS HARRISON.
• Court: Maryland Court of Appeals

22 Md. 468

MARTHA HARRISON, GEORGE HARRISON AND OTHERS v. THE STATE OF MARYLAND, AT THE INSTANCE AND FOR THE USE OF COLUMBUS HARRISON.

Court of Appeals of Maryland.

June 3, 1864

APPEAL from the Circuit Court for Calvert County.

This was an action of debt on an administration bond instituted on the 24th of September 1859, by the appellee against the appellants.

The record shows that Robert Harrison of Robert, who, in the year 1851, resided in Calvert County, in this State, was, in the month of December in that year, married, in Washington City, in the District of Columbia, to his niece Martha Harrison, at that time also a resident of Maryland. Returning to Calvert County, the parties cohabited as man and wife for several years, until the year 1858, when Robert Harrison died, leaving children by said cohabitation. The equitable plaintiff is a nephew of the deceased, and claims in this action a distributive share of his estate, to the exclusion of the children of the deceased by said marriage on the ground that the marriage was a nullity under the laws of Maryland.

The Court below (BREWER, J.,) granted an instruction to the jury the effect of which was to declare the marriage absolutely void, and from this action of the Court the present appeal was taken.

This cause was argued before BOWIE, C. J., and BARTOL GOLDSBOROUGH, and COCHRAN, J. R. J. Brent and O. Miller, for appellants.

1 st Point. --The construction of the Act of 1777, ch 12.

The great inquiry is, whether the legislature meant to avoid these marriages ab initio, and to all intents and purposes, or only to declare them void by the judicial proceedings authorized by the 15th section of that Act. The common law did not suffer marriages within the prohibited degrees, or any incestuous marriage to be avoided after the death of either party, because such action would bastardize the innocent offspring. 2 Kent Com., 96. Elliott vs. Sugden, 2 Phil. Rep., 16. 1 Tucker's Bl. Com., 434. 2 Pars. on Cont., 108. 1 Rolle's Abr., 357, L., 42-45. Such a statute is said by Dr. Lushington to be a penal law, and as such must be strictly construed. Bishop on Marriage, sec. 170. 1 Robertson's Eccles. R., 321. Queen vs. Wye, 7 Adol. and Ell., 761; (34 Eng. C. L. Rep., 215.) 3 Nev. & Per., 13. 2 Stark. Ev., 221. Carthew R., 271. 2 Salk., 548. 4 Mod. R., 18. 12 Mod. R., 35. Corrie's Case, 2 Bl. Ch. R., 488. In construing this statute, it should, as far as possible, be made to harmonize with the reason and principles of the common law. Dwarris on Statutes, (9 Law Lib., ) 695.

Undoubtedly, if we looked only to the 1st section, and there was nothing to soften its rigors, the marriage would be made null by legislation; but as the construction must be on all the sections " ex visceribus actus, " and the rule is, that the best interpretation is to be had " ex antecedentibus et consequentibus, " (see Dwarris on Statutes, 699, and Pennington vs. Coxe, 2 Cranch, 33-52,) we confidently maintain that the statute while avoiding the marriage, provides a specific mode through the judiciary, of declaring it void.

It is not enough to say the marriage is void, unless you ascertain when and how it is to be avoided, qui hæ ret in litera hæ ret in cortice. Hobart's Rep., 166.

Nor is it any objection to this construction, to say that the same power is given by the 15th section to determine the validity of " any second marriage, the first subsisting." Because, all such second marriages being void at common law, as shown in 2 Com. Dig., " Baron and Feme, " the simple provision that either party may obtain a sentence of nullity from the General Court on that ground, would not alter the common law as to the original nullity of such acts of bigamy.

Besides, in cases of bigamy, there could not in the nature of things be a husband with two legal wives in a country where polygamy was not allowed. Such reasoning against our interpretation of this 15th section, is therefore more specious than solid.

Nor do we think that the reference in that section to indictment helps the adverse construction, as it is only meant that the validity of such marriages may be determined on indictment by the State, or by petition of either party, thus enabling the public to have such marriages investigated and annnlled, as well as the parties themselves. The nullity of the marriage is therefore not left dependant solely on the election of either party, but can be declared on public indictment.

In 1753, the English Parliament made all marriages contrary to the Marriage Act void " to all intents and purposes," and provided no tribunal to adjudicate specially on the validity of the marriage. 7 Stat. at large, p. 526. sec. 8. The Legislature of Maryland, in 1777, twenty-four years afterwards, while annulling the marriage, provides a special tribunal to pronounce it void--such a departure from the Marriage Act of England, was doubtless to qualify the rigors of its sweeping prohibitions, and not leave such an important matter as the nullity of these marriages to the uncertain and contradictory verdicts of juries in the various forms in which these marriages might be involved.

It is always a question of construction whether the statute intended to avoid the marriage ipso facto without further proceedings. Bishop on Marriage, sec. 46, 47. But it is supposed that the penalties imposed in this statute, make the marriage void under the common law rule, that contracts made unlawful by penalties are necessarily void. This rule does not apply to penalties incurred under Marriage Acts. Bishop on Marriage, sec. 167, 8, 9; sec. 170, 1, 2. Parton vs. Hervey, 1 Gray's Rep., 120. Nor does this Act profess to avoid any marriage made out of the State, but punishes the act of leaving the State, and marrying without it personally. It is not like the Royal Marriage Act referred to in Sussex Peerage Case, 11 Clark & Finnelly, p. 146. The validity of marriages is to be tested by the " lex loci contractus, " and it is no answer to suppose the extreme case of a Mormon importing here his army of wives. Story's Con flict of Laws, sec. 103. Ib., sec. 123. 2 Parsons on Cont., p. 109. Poynter on Marriage, (13 Law Lib., ) 55.

Finally, we insist that if the General Court had on petition or indictment declared this marriage valid, it would have concluded all the world as a decree in rem, and so if it had declared it a nullity. This therefore proves that the marriage is only voidable by the Court. If, therefore, there be a doubt on the whole law, the Court will uphold the marriage, though prohibited by the statute. Catteral vs. Sweetman, 1 Roberts Eccl. R., 312-314, 315, 321. Bishop on Marriage, sec. 170.

2 nd Point. That the Act of 1777, ch. 12, was not at the date of this marriage capable of being carried out or enforced (quoad the 15th section) in the District of Columbia, and therefore the first section could not be considered in force, because, by that Act, the marriage, though declared void, could only be avoided by establishing the fact of the prohibited degree of consanguinity in the General Court. See 15th section. And the Act of Congress, of 27th February 1801, only gave the Courts of the District of Columbia the same powers as Circuit Courts of the United States, and not the powers of the General Court of Maryland. 2 Stat. at Large, 105, sec. 3. And such was the decision of the Supreme Court, in several cases. Kendall vs. United States, 12 Peters, 524. Decatur vs. Paulding, 14 Peters, 497. It is true, the Act of Congress, passed 27th February 1801, adopts generally all such laws of Maryland as were then in force in Washington County. See its 1st section. 2 Stat. at Large, 105. But the Supreme Court have held that this general adoption is to be qualified to apply to such laws as were compatible with the change of Government, that is, as could be executed. United States vs. Simms, 1 Cranch, 252.

3 rd Question. If the marriage in question is to be deemed null and void to all intents and purposes when contracted; is it not cured for all purposes by the healing virtues of the subsequent Act of the Legislature, 1860, ch. 271?

Acts of legislation are never set aside as unconstitutional in doubtful cases. State vs. B. & O. R R. Co., 12 G. & J., 400. Cromwell vs. State, 12 G. & J., 257. Mayor & C. C. of Baltimore vs. State, & c., 15 Md. Rep., 453, 475, 476.

It must be conceded by our adversaries that this marriage violated no principle of natural law, and was valid at common law. There being good reasons of policy against all marriages between parties nearly related to each other, the statute law of 1777, prohibited them as a matter of policy. But for the statute, being good marriages, the question is whether, if the policy of the State is reversed, and such marriages declared valid ex post facto, there is any wrong done to a distributee claiming against the marriage thus legalized by a change of legislative policy?

We shall demonstrate that these confirming Acts have been so long in vogue, both in England and in our own State, and have been so uniformly recognized and upheld by the Courts under all the objections now urged to this Act, that it would be a bold and rash judicial act that would at this late day annul such confirmatory legislation. No argument in favor of the sacredness of vested rights can be listened to when it assails the long established muniments of legislative and judicial precedents for the last century. In 1753, (as we have shown before,) the English Parliament annulled all marriages not made in strict confirmity to the requirements of the statute of 26 George 2, ch. 33, 7 Stat at Large, p. 526, sec. 8. In after years that Parliament, seeing how many families would be illegitimated, passed several curing Acts...