State ex rel. Gentry v. Fry

• Decision Date: 31 August 1835
• Citation: 4 Mo. 120
• Parties: THE STATE, TO THE USE OF GENTRY AND WIFE v. FRY AND OTHERS.
• Court: Missouri Supreme Court

4 Mo. 120

THE STATE, TO THE USE OF GENTRY AND WIFE

v.FRY AND OTHERS.

Supreme Court of Missouri.

August Term, 1835.

ERROR TO THE CIRCUIT COURT OF MARION COUNTY

STATEMENT OF CASE BY JUDGE MCGIRK.^a1 This was an action of debt brought in the name of the State to the use of Gentry and wife, against Fry as the guardian of Elvira Fry, the wife of Gentry and also against the securities. Since the bond was made the marriage took place--several breaches were assigned on the condition of the bond, alleging that Fry had received large sums of money belonging to the minor Elvira, and had failed to pay the same over. To this action the defendants pleaded that on the____day of February, 1833, the said Elvira was by an act of the General Assembly of the State of Missouri divorced from the bonds of matrimony subsisting theretofore between her and Gentry. To this plea the plaintiff demurred, the court overruled the demurrer and gave judgment for the defendants. This case involves the question whether or not the legislature can constitutionally pass an act divorcing a man and his wife from the obligations and duties taken on them by entering into marriage.

CHAMBERS, for Plaintiff in Error. In the former argument of this case the counsel for the plaintiff made four points for the consideration of the court. The same are now insisted upon. The first position is that marriage is such a contract as was contemplated by the framers of the Constitution of the United States and of this State. The term, marriage, as used in our language is borrowed from the French words marrier, signifying to marry--and mari a husband, and is defined to mean by commentators, “a civil and religious contract whereby a man is joined and united to a woman for the purpose of civilized society.” The latin word maritagium which corresponded with the term marriage in the English was likewise used under the feudal system to denote the giving of a ward or widow in marriage, and the portion and lands which the husband took by the marriage. Before entering into a minute investigation of this contract as it has been treated and considered by writers on the civil and common laws--it may not be unprofitable to examine the light in which it has been held by other nations than those from whom we borrow our laws. This institution as a civil regulation or contract was first introduced by Cecrops, King of the Athenians, into Greece, and after his reign down to the end of the Commonwealths, it continued to be regarded in the light of a contract and laws were made to enforce and protect it, as also the rights of the parties under it. The age at which the parties should marry--the form in which it should be solemnized--and the time of the year when consummated was all regulated by law.

Among the nations less civilized the customs are various; but through all, the evidence is plain, that it is esteemed a contract. Thus, in Turkey and the Ottoman Empire a man may have three sorts of wives, and but one woman of the first class. The first is called legitimate, and is made by the mutual consent of the parties and the sanction of the parents of the female. The second, wives in kebin, are hired wives, which may be repudiated upon the expiration of the term of time, and thirdly--slaves--these are bought. In Russia the lover goes to the house of the bride's mother and says, “show me your merchandize I have got money,” and if both agree and the parents are satisfied with the husbands presents, the marriage is immediately confirmed. Among the Persians, the Abipomions, the Chinese, the Hebrews, the Assyrians, the inhabitants of Sumatra, and most of the savage nations of Asia, Africa and America, the wife is purchased by the husband, either at a stated price, or by presents. Yet in all these nations, there are laws or customs for the regulation of the contract and defining the reciprocal duties of the husband and wife.

There is also one fact, which attends this contract wherever it exists-- and that is, that upon the marriage, the wife and all of her property passes in potestatum viri, into the power and disposal of the husband. The husband immediately upon the celebration of the marriage becomes possessed of the absolute control of the person and effects of the woman, and the laws or customs of all countries furnish him the right to enforce and exercise his just authority over them. In the barbarous and semi-barbarous nations, his right over the person of the wife is more extensive than in the more civilized, but not more certain and defined, than in our own country. These facts are brought to the recollection of the court, only for the purpose of showing that in all nations and tribes of which history furnishes us any evidence of their laws or customs, the institution of marriage is esteemed and considered as a matter of trade or barter; as a contract highly municipal in the consequences which follow and are attached to it, but not the less a contract between the contracting parties, whether these be the husband and wife alone, or the husband on the one part and the parents or guardians on the other, or as it exists amongst the Persians by the intervention of females on behalf of the husband and the parents on the part of the wife.

Every people esteem it a binding trade and furnish the injured party a remedy against the offending party for the reparation of the injury and the enforcement of his or her duty.

Those to whom we refer for the first principles of our system of civil jurisprudence, have but done and held this contract as all other nations have esteemed it, until the time of Pope Innocent III, the ceremony was looked upon as exclusively a civil contract. There was no solemnization of marriage in the church, facie eclesiœ--but the man came to the house where the woman inhabited and led her home to his own house, which was the ceremony then used: 1 Rol Abr. 359; 1 Sid. 64. Pope Innocent the III, gave to the ceremony the character of a divine institution, and elevated it to the dignity of one of the holy ordinances of God, and requiring the sanction of the church for its validity. Since then it has been held by many denominations, and at this day, is by some both Protestant and Catholic, viewed as a sacred ordinance, or religious contract, requiring the presence of one authorized to administer the sacrament, at its celebration. It is in no wise necessary for our present purpose to pause to inquire into the nature of the sacred character which the act of Pope Innocent has thrown around this ceremony, far as will hereafter be shown, this elevation of the institution has not in any wise changed or varied the character ascribed to it by the civil law: Reeves' Dom. Relations, 176. It is however, worthy of observation that even amongst canonists the investment of the marriage ceremony with this additional sanctity of character did not change or vary their understanding of its obligations and attendant circumstances between the contracting parties. These still continued to hold it as a contract of divine creation, requiring the consent of the parties before it had any binding efficacy and that once given though not in the form prescribed by the church, rendered it valid and operative. From the act of Pope Innnocent has flown that portion of the definition of the term marriage which commentators have given to it, and which we have quoted above, viz: “religious contract.”

Almost every commentator on civil law, prior to the time of Sir William Blackstone has invested it with the double character of a civil and religious contract, but no one has at any time treated it as less a civil contract, because “religious of this double character.”

I now come to the consideration of the question, whether marriage was such a contract as was contemplated by the framers of the United States, and State Constitutions; and first I ask leave to show what the term contract in its legal sense embraces. It has been urged that there are two meanings that may be attached to this term, but that as used by the framers of the Constitution, it could only have been intended to embrace contracts of a pecuniary obligation. It is a sufficient reply to this argument to say that the term contract has but one legal and technical definition, and that it does not extend so far as to effect the political relations which exist between the government and its citizens, when these relations are of purely a political character. Certain it is that there are many relations between the citizen and the government, which are, and many others which are not embraced within the legal and political operation of this term. The right of an individual to an office if the tenure is by the pleasure of the appointing power, ceases upon the order of that power properly expressed, and he cannot longer hold it. If it is an office which the, legislature may destroy or vacate, and they do destroy the office, the original undertaking, that he should hold it for a given time will not enable him to do so after the destruction of the office; for this is purely a political regulation, and the contract ceases to bind when the office is destroyed.

The same argument will apply to many other conditions and regulations between the State and citizens. But there are likewise many other instances in which the rule operates to bind the contract between a State and its citizens, as between any other two contracting parties. In every instance where the transaction can be brought within the technical definition of a contract, there I apprehend the term will apply in the sense understood by the framers of the Constitution, and all instances coming within that definition the courts will be bound to so construe as to protect them by that instrument.

Writers on general law define the term contract to be “ Duorum pluriumve in idem placitum consensus obligationis licite constituendae vel tollendas causa datus. That is, where the consent of two or more persons in the same...