State v. Bray
| Decision Date | 30 June 1852 |
| Citation | 13 Ired. 289,35 N.C. 289 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. CRISTOPHER BRAY. |
In an indictment for bigamy, the place where the first marriage was had is not material. It is sufficient to put forth, that there was a prior marriage.
The words, “the cure of souls,” used in the marriage act, Rev. Stat., ch. 71, does not imply a necessity, that the minister should be the incumbent of a church living, or the pastor of any congregation or congregations in particular; but they do imply that the person is to be something more than a minister merely, and that he has the faculty, according to the constitution of his church, to celebrate matrimony, and, to some extent, at least, has the power to administer the christian sacraments, as acknowledged and held by his church.
When a marriage is claimed to have been made by a minister, the extent of his authority for that purpose should appear.
The statute admits every one to be a minister, who, in the view of his own church, has the cure of souls by the ministry of the word, and of any of the sacraments of God, according to its ecclesiastical policy: implying spiritual authority to receive or deny any desirous to be partakers thereof and to administer admonition or discipline, as he may deem the same to be to the soul's health of the person, and the promotion of godliness among the people. When to such a ministry is annexed, according to the canons or statutes of the particular church, the faculty of performing the office of solemnizing matrimony, the qualification of the minister is sufficient, according to our statute.
Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term, 1852, his Honor Judge BATTLE presiding.
This indictment is for bigamy, and charges the first marriage to have been in Pasquotank county in this State. On the trial, the person, who celebrated it, testified, that it was in Camden county; and that at the time he was a regularly licensed preacher of the Methodist Episcopal Church, and was recognised by that denomination as a regular minister of that church, and occasionally preached in the Methodist Churches, but had not the charge of any particular church, or congregation. The Court instructed the jury, that it was immaterial, where the first marriage took place, provided it was duly celebrated; and that, if they believed the evidence, the witness was a minister of the Gospel, competent to solemnize it. The prisoner was convicted, and sentenced, and then appealed.
Attorney General, for the State .
Heath and Ehringhaus, for the defendant .
The Court considers the first instruction right. The offence consists in the second marriage, and therefore it must be truly laid, in respect of the place, and the indictment must be in the same county. The first marriage must, indeed, be set forth; because the second marriage is criminal, by reason only, that the first wife was living. But, if she was living, the crime is complete, without regard to the place where the first marriage was had. Therefore, although time and place are, according to the precedents, usually annexed to every fact alleged in an indictment, yet, in this instance, neither is material, and the one need not be proved, as laid, more than the other; but it is sufficient to show, that, at some time before the alleged second marriage, there was at some place the alleged first marriage.
The second point depends upon the meaning to be given to the marriage act, Rev. St. c. 71. It enacts that all regular ministers of the Gospel, of every denomination, having the cure of souls, shall be authorized to solemnize the rites of matrimony, according to the rites and ceremonies of their respective churches, and agreeably to the rules in the act prescribed. It then prescribes that marriage shall be by license, or by publication of bans by any minister of the Gospel, qualified as in the act before prescribed. It was not directly stated, by the witness in this case, that he was such a minister as had power, according to the rules of his church, to join in wedlock, nor in what grade of the ministry of that church he was. He called himself a “licensed preacher,” and then “a regular minister,” and said he occasionally preached in Methodist churches, but had not the charge of any church or congregation in particular; and he did not set forth that he had ever performed any other ministerial act besides that of preaching, or had the authority of the church to do so. It seems to the Court, it did not sufficiently appear, that the witness was qualified to marry persons, by being a regular minister of the Gospel of the Methodist denomination, having the cure of souls. It is not supposed by the Court, that the cure of souls, as used in the act, implies a necessity, that the minister should be the incumbent of a church living, or the pastor of any congregation, or congregations in particular. But those terms import, that the person is to be something more than a minister or preacher merely; and that he has faculty, according to the constitution of his church, to celebrate matrimony, and to some extent, at least, has the power to administer the christian sacraments, as acknowledged and held by his church. We know not how less force can be allowed to those terms, if any meaning is to be given to them; and a comparison of those terms, with those read in the previous statutes, and with the state of the common law, on this subject, shows it to be, probably, the true meaning of them.
By the marriage act of 1741, Davis' Rev. 56, the rites of matrimony might be celebrated by “every clergyman of the Church of England,” and for want of such, by any lawful magistrate within this government, by license or “by the publication of bans as prescribed in the Rubrick in the book of Common Prayer:” the magistrate, however, not to marry, under a penalty, “in any parish where a minister shall reside and have a cure,” without permission from such minister, and “the minister having the cure of any parish,” and not refusing to perform the ceremony, to have the fees for marriages, in the parish, by any other person. In an act in 1765, for establishing an orthodox clergy, provision of a salary and also of fees, including fees for marrying by license or...
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