Ponder, Executor, vs. Graham.-Opinion of Court. Congress. My answer to this is, that it was out of the power of Congress, itself to pass the act, and that it could not, by its approval, make that valid, which was, ipso facto, void under its own grant, as well as the Constitution of the United States, which I will endeavor to show; and, secondly, no approval of Congress is to be inferred from its silence. Many acts of the Council silently acquiesced in by Congress, have been declared unconstitutional, and set aside by the courts of the Territory, in the exercise of legitimate powers granted to them. If the legislature passed this act in violation of the organic law, it was void, and if Congress could, by its approval, make that a law which was no law, it was assuming to legislate directly on the question of divorce. This it could not do. But it is said, how can Congress authorize any tribunal to do that which it cannot do itself? The answer is a plain one. The powers of the Federal Government being purely derivative, the authority of Congress to establish and organize a Territorial Government is not an original power, but a limited one, derived from a specific grant in the constitution; and in the exercise of this power, it could establish judicial tribunals, possessing all the powers incidental to them; but it does not follow, that Congress could exercise judicial functions. Chancellor Kent (2d Commentaries, says the repeal of these acts of divorce by Congress, amounts to a strong national condemnation of the exercise of this power by a legislature. There is another point presented by the record in this case, which I think it my duty briefly to consider it is, whether this act of the legislature is not unconstitutional, on the ground that it impairs the obligation of a contract. It is insisted that marriage is but a civil relation, and not embraced within the definition of a contract, as used in the constitution. In England, as well as in this country, all legal writers consider it as purely a civil contract. It is true Ponder, Executor, vs. Graham.-Opinion of Court. it is a civil relation, but nonconstat, it is not a contract in the strict legal definition of the term. Every contract creates a legal relation between the parties. Blackstone says that "the law of England considers marriage in no other light than as a civil contract, and viewing it in this civil light, the law treats it as it does all other contracts." 1 Blackstone's Commentaries, 448. Rutherford says the contract of marriage creates important legal rights in the person and property of the other. 1 Institutes, 314. See, also, Bacon, 476, 488. The contract creates mutual rights, duties and obligations, deeply interesting to society, it is true, but none the less important and valuable to the contracting parties. It is municipal, as it affects the public-it is a contract, as it affects the rights of the person and the rights of property-it has all the attributes of a pure contract, whether we consider the capacity of the parties to contract, the subject matter or the consideration; and the rights growing out of it can be asserted and enforced in a court of justice. A man has as good a right to the property acquired by marriage, as that acquired under any other contract. Mr. Justice Story says, "As to the case of the contract of marriage, which the argument supposes not to be within the prohibitory clause, (of the constitution,) because it is a manner of civil institution, I profess not to feel the weight of the reason assigned for the exception. In a legal sense, all contracts, recognized as valid in any country, may be properly said to be matters of civil institution, since they obtain their obligation and construction, jure loci contractus." 4 Condensed Supreme Court Reports, 520. I know of no reason why the word contract, as used in the constitution, should be restricted to those of a pecuniary nature, and not embrace that of marriage, involving as it does, considerations of the most interesting character and vital importance to society, to government, and the contracting parties. It is comprehended by the words of the constitu Ponder, Executor, vs. Graham.-Opinion of Court. and support, and by other acts and conduct impairing, repu diating and rejecting his contract, so that it could not in fact be regarded as a subsisting contract-that then it was competent for the Legislature to declare the same, and to give her the privilege of forming another contract, by contracting a new marriage. To which instructions, the counsel for defendant excepted. The errors assigned in this court are― 1st. The court below erred in the instructions given to the jury, as set forth in the bill of exceptions. 2d. The court erred in refusing to instruct the jury, as prayed for by appellant. 3d. The court erred in overruling the exceptions of appellant to the report of the sheriff and commissioners. The case was very elaborately argued by ARCHER for appellant and by RANDALL and WOODWARD for respondent. Judge BAKER, of the Middle Circuit, sat with the Chief Justice, and SEMMES, Justice, at the hearing of this cause, THOMPSON, Justice, being disqualified, by reason of his having been of counsel in the court below. SEMMES, Justice, delivered the opinion of the court. This cause comes before this court on appeal from Leon Circuit Court. The suit was commenced in the court below by the respondent, representing herself as the widow of the testator, Archibald Graham, and praying for an allotment of dower in the estate of her deceased husband. The appellant filed his plea, “ne unques accouple en loyal matrimonie," to which, there was a general replication of valid marriage. On the trial of the cause, the Judge in the court below gave to the jury several instructions, which were excepted to by counsel for appellant. Other instructions were asked for by the same counsel, which were refused, and which refusal was also excepted to. Ponder, Executor, vs. Graham.-Opinion of Court. In considering this case, it is unnecessary to notice the instructions given by the court on the trial. Passing by these, I proceed to the consideration of the first instruction asked by the appellant, and refused. That instruction in substance is this: That the Legislative Council of the Territory of Florida had no power or authority to take jurisdiction of and decide questions of divorce, and to pass an act dissolving the marriage contract between two persons, lawfully entered into between them; and that, therefore, the act of the Legislature divorcing Mary Canady, passed February 11th, 1832, is void and of no effect. In considering the important questions which arise under this instruction, and to which the attention of counsel was mainly directed, I frankly confess in the outset my unqualified concurrence in the doctrine, as laid down by the court in the case of The State v. Cooper-that it is the duty of a court to sustain the validity of a statute, unless its unconstitutionality is so obvious as to admit of no doubt. 5 Blackford's Reports, 259. On the other hand, it must be conceded, that, however grave and interesting the questions presented for the determination of a court, it is its duty to shrink from no responsibility imposed upon it by the laws and the Constitution. A question has been raised by the counsel for respondent, which it is necessary first to dispose of. It is insisted that, inasmuch as Graham by his will recognizes respondent as his wife, his executor is estopped from setting up the illegality of the marriage, and that by his probate of the will, he is bound to execute it. I do not understand that the executor is seeking to avoid the execution of this will, by depriving respondent of the benefit of its provisions, as one of the legatees. But, on the contrary, she has renounced the provision in her favor, and claims dower, as the widow of Graham, adversely to the will. The doctrine of estoppel has no application to this case. It is not denied that, as respects Ponder, Executor, vs. Graham.-Opinion of Court. third persons, a man who lives with a woman, and holds her out as his wife, is estopped from denying it, when charged with liabilities as her husband, but it cannot affect the rights of property even as between themselves. 5 Iredell's Reports, 495. The objection, I apprehend, arises from not considering the distinction between void and voidable marriages. Whenever any of the canonical disabilities exist, the marriage is not ipso facto void, but is esteemed both by the canon and common law valid for all civil purposes, until sentence of nullity is pronounced by the spiritual court, which can only be done in the life-time of the parties; and in the event of either of the parties dying before the Ecclesiastical Court proceeds against them, the marriage becomes good, ab initio, to all intents, and the wife and husband may have dower and curtesy, and the issue will be legitimate. Coke on Littleton, 32, 33. But where any civil disability, as prior marriage, exists, the marriage is void absolutely, and no civil rights can be acquired under it; and it may be inquired of in any court where rights are asserted under it, though the parties be dead. 5 Iredell's Reports, 493-4. Where any civil disability exists, the judgment of the court is but declaratory; it does not make it void; for though a marriage de facto, it had no legal existence. It is competent for a party to set up the nullity of his first marriage, in bar of a sentence praying the nullity of the second marriage. Shelford, 332. Either of the parties to a marriage, or the parent or guardian of either of the parties, or any other person interested, may apply to the court, and they have a right to a declaratory sentence, and it is upon the ground that the public, as well as the parties in interest, have a right to know the real character of these domestic relations. Shelford, 334. It is, therefore, upon principle and authority, competent for the executor, representing as he does the interest of distributees and creditors of this estate, to impeach the validity of this marriage. |