Opinion
(January Term, 1868.)
1. Upon the order of General Schofield (27 April, 1865), announcing the subjugation of North Carolina, all persons who had been civil officers in the State ceased to be such de facto as well as de jure.
2. It is competent for the Legislature by retrospective legislation to give validity to a marriage which is invalid by reason of the non-observance of some solemnity required by statute; aliter, where such marriage is a nullity, as for want of consent, etc.
3. A marriage solemnized upon 15 June, 1865, in Wake County by one who during the existence of the Confederate government had been appointed a justice of the peace, is within the provisions of the ordinance of 18 October, 1865, entitled, "An ordinance declaring what laws and ordinances are in force," etc., and is rendered valid thereby.
( Hughes, ex parte, ante, 57; Wiley v. Worth, ante, 171; Haley v. Haley, Phil. Eq., 180; S. v. Samuel, 2 D. B., 177, and Crump v. Morgan, 3 Ire. Eq., 91, distinguished and approved.)
PETITION for dower, heard before Fowle, J., at Fall Term, 1867, of the Superior Court of WAKE.
Bragg and Haywood for appellant.
Phillips Battle, contra.
It was agreed that the petitioner and the deceased had gone through the forms of matrimony before one William Cox, in Wake County, upon 15 June, 1865. Cox had been appointed a justice of the peace for that county in 1862, and had then been qualified.
The defendants did not admit that an appointment and qualification in 1862 were sufficient to render Cox a justice of the peace; but if they were so, they denied that he had any power to act at the time of this marriage, viz., after the surrender, and proclamations of the President, provisional Governor, etc.
The above statement presents the only objection made to the petitioner's right of recovery.
His Honor gave judgment pro forma in favor of the petitioner, and the defendants appealed.
1. The marriage was void. (584)
( a) There is no such thing as marriage by consent simply in this State. S. v. Samuel, 19 N.C. 177; S. v. Bray, 35 N.C. 289; S. v. Patterson, 24 N.C. 346. See, also, Shelf. M. D., 5; 2 Rep. H. W., 474; 1 Scrib. Dower, 616 to 668; Regina v. Millis, 10 Cl. Fin., 534.
( b) These rites were not celebrated by a lawful officer. Cox never was more than a de facto officer of a de facto government. When that government ceased to exist, his office came to an end. The proclamation of the President (29 May, 1865), and the Provisional Governor (12 June, 1865), left him without color for his official acts. Hughes' case, ante, 57; Wiley v. Worth, ante, 171; Haley v. Haley, 62 N.C. 180. See Burke v. Elliott, 26 N.C. 355; Gilliam v. Riddick, 27 N.C. 370; S. v. Robbins, 28 N.C. 23; Swindell v. Warden, 52 N.C. 578; King v. Bedford Level, 6 E., 368; 2 Hal. P. C., 24; Cro. Car., 97 (case of demise of the Crown).
2. The ordinance of 18 October, 1865 (ch. xi) does not validate the marriage.
( a) The marriage being in itself void, the Convention had no power to render it valid. S. v. Pool, 50 N.C. 105.
( b) The ordinance does not cover the case. The words in section 3, "purporting to be a law," refer only to laws of the State after secession, and here no such law is relied upon, as the marriage depends only upon a law passed before the war. Section 4 covers only such action as took place whilst the late de facto State government was in existence, as is shown by section 6, which ratified the action of the Provisional Governor, one of which acts was (12 June, 1865), to displace civil magistrates.
They also referred to General Schofield's orders of 27 and 28 April, 1865.
1. The marriage was valid when performed.
(585) Cox was a de facto justice of the peace on 15 June, 1865. That the government of which he was part was never more than de facto, does not affect the question. A de jure government that has come to an end has no more virtue than a de facto government under the same circumstances. In either case, it is the conqueror that by his recognition of them confers upon such former officials those functions that are summed up in the phrase de facto. For his own purposes in regard to preserving the peace, etc., he may impliedly confer upon them an exequatur. The proclamations referred to do not amove The officer mentioned. The language is general, but nevertheless is to be restrained ad habititatem rei, i.e., that, for any political purposes, ex. gr., for those of reconstruction, holding elections (the objects for which the provisional Governors were appointed) there were no such officers. In accordance with this, it is seen that the proclamation of 12 June, 1865, does not confer upon the persons appointed to be justices any other than political functions. They had no power to marry, and therefore, their predecessors were not displaced as to that or the like function. In that respect these were left to the doctrines of public law. By that, mere conquest does not remove the civil officers of the conquered as regard every function. Dana's Wheat., sec. 347 n. 2, etc. Hughes' case, Wiley v. Worth, and Haley v. Haley, do not go the length now insisted upon, i. e., that the officers do not remain such de facto, after the surrender. A de facto officer has no right to salary, as ante, 171; and the general language in Hughes' and Haley's cases is to be restrained to the subject-matter.
Besides, the same government which through the President and Provisional Governor, for political purposes, issued the above proclamations, for other purposes covering the present case, through General Halleck then commanding Virginia and North Carolina, issued the proclamation of 28 April, 1865, dated at Richmond, Va. (586) The fifth section expressly recognizes magistrates as [ de facto] officers empowered to celebrate marriage and requires them to take an oath of allegiance. This requirement is only directory. This proclamation remained standing in the official paper at Raleigh for several months; was interested with the other proclamations above cited, and was standing therein on the day this marriage was performed.
The actual amotion of these officers is due to the ordinance of 19 October, 1865.
2. The ordinance of 18 October, 1865, establishes this marriage.
(a) The convention had the power to do so. Sedg. Cons. and Stat. Const., pp. 666, 684; 1 Bish. M. D., sec. 657; and cases there cited.
(b) The words include this case. There is no reason for restraining the word "purporting" to the single case stated by the appellants. Various objections were apprehended and a general provision was applied. The words in the fourth section "which may be done" were intended to include cases thereafter; i. e., may "hereafter be done" throughout the troubles. They were inserted by an amendment.
The counsel for the appellants took these positions:
1. The marriage was void, not having been solemnized in the mode required by law.
2. The Convention had no power to give validity to the marriage.
3. The ordinance of the Convention does not apply to this case.
We admit the first position. The marriage was not valid, on the ground that Cox, who professed to act as a justice of the peace at its solemnization, was not an officer of the State, either de jure or de facto. After the order of General Schofield announcing the (587) subjugation of the State, and that it was in the possession of the army of the United States, all of the officers of the State were dead, and could no longer exercise the functions of their respective offices. This is settled in the matter of Hughes, ante, 57, followed by Wiley v. Worth, ante, 171; Haley v. Haley, Phil. Eq., 180. The idea that after the State attempted to withdraw from the Union, had waged war for four years, and had been subjugated, the officers of the State who had in the meantime disowned their allegiance to the United States, and attorned to the government of the Confederate States, could the next day turn around and say: "We will now discharge the duties of our respective offices, as if nothing had happened," is out of the question. But it is said the State had no right to secede, and consequently was never out of the Union: Agreed; but does it follow that the officers of the State are to occupy their same positions under the new order of things? If the State had a right to secede, and the United States wrongfully waged war to the result of subjugation, it is conceded on all hands that, according to the laws of war, the State was subject to the terms of the conqueror. That the State can be in a better condition, on the supposition that the attempt to secede was wrongful, and the war waged by the United States rightful, is a conclusion upon which no mind, accustomed to legal investigation, can rest as a proposition of law. So Cox, who was appointed a justice of the peace by the State while a member of the Confederate States, was not, at the time he solemnized this marriage, an officer of the State, and consequently the marriage was not valid. S. v. Samuel, 2 Dev. Bat., 177.
2. We are of opinion that the Convention had power to give validity to this marriage. On this distinction: If the marriage be a (588) nullity for the want of the essence of the matter, that is, the consent of one of the parties, as in the case of Crump v. Morgan, 3 Ire. Eq., where, one of the parties being a lunatic, the court decreed a divorce "of nullity of marriage" — neither a Convention, nor Legislature, nor any other authority has power to make the marriage valid; but if the marriage be invalid by reason of the nonobservance of some solemnity which is required by statute, as the presence of a minister of the gospel or a justice of the peace, that want of form may be supplied by an ordinance of a convention. This conclusion if fully supported by the authorities cited on the argument, and indeed it is so well sustained by the reason of the thing as to need no support.
3. This is the only point about which the Court has had much difficulty. I confess that at first I was inclined to the opinion that the case did not fall within the provisions of the ordinance, chapter 11, "An ordinance declaring what laws and ordinances are in force, and for other purposes." It seemed to me that the scope of the ordinance was to give validity to all acts done by the civil officers of the State during the war, and up to the time when the provisional Governor was inducted into office; and after that time to give validity to all of his acts, and all of the acts of the officers appointed by him, so as to make his induction into office the dividing line, and not to have one set of officers lapping over and encroaching upon the jurisdiction of the other set. But upon further consideration, and in deference to the better judgment of my brothers Battle and Reade, I became fully satisfied that my first view of the ordinance was too narrow, and that by its true construction it does not draw any sharp dividing line between what was done by the civil officers of the State, and what by the officers appointed by the Provisional Governor; for there had been no collision or contest for jurisdiction between them, and the benign and enlarged purpose of the ordinance was to make valid every (589) thing which had been done under any authority purporting to be a law of the State, in like manner and to the same extent as if the State had never attempted to secede, without minding any lapping over into the time of provisional government.
In reference to marriage there was good reason for using the broadest terms, as is done in this ordinance; for although in this particular instance, where the marriage was solemnized near the seat of government, there was a chance that the parties had heard of the induction of the Provisional Governor, and of his proclamation, and possibly, if well informed in regard to the consequences of a civil war resulting in subjugation, they might have known that Cox was no longer a justice of the peace, either de jure or de facto, still it was apparent to the members of the Convention that this information did not reach the extreme counties of the State for several months, and when it was known, its legal effect was not appreciated. This accounts for the general terms: "All marriages solemnized on or since that day," etc., extending the remedy down to the date of the ordinance.
There is no error. Judgment affirmed. This will be certified to the end that further proceedings may be had in the court below.
PER CURIAM. Judgment affirmed.
Cited: Buie v. Parker, 63 N.C. 137; Boyle v. New Bern, 64 N.C. 664; Franklin v. Vannoy, 66 N.C. 152; Paul v. Carpenter, 70 N.C. 507; Baity v. Cranfill, 91 N.C. 298; S. v. Wilson, 121 N.C. 656.
(590)