Cooke v. Cooke, 61 N.C. 583, 1 Phil. 583 (1868)

Jan. 1868 · Supreme Court of North Carolina

61 N.C. 583, 1 Phil. 583

SUSAN COOKE v. HENRY L. COOKE and others.

Upon the Order of General Schofield (April 271865), announcing the subjugation of North Carolina, all persons who had been civil officers in the State ceased to be such defacto as well as de jure.

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; alitor, where suehmai'riage is a nullity, as for want of consent, &e.

A marriage solemnized upon the 15th day of June 1865 in Wake county by one who during the existence of the Confederate government had been appointed a justice of the peace, is withiu the provisions of the ordinance of October 18th 1865, entitled, An ordinance declaring what laws and ordinances are in force, &c., 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 doiver, heard before JFoide J., at Fall Term 1867 of the Superior Court of Wake.

It was agreed that the petitioner and the deceased had gone through the forms of matrimony before one William Cox, in Wake county, upon the 15th day of June 1865. Cox had been appointed a justice of the peace tor 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, this denied that be bad any power to act at tbe time of this marriage, viz: after the surrender, and proclamations of the President, Provisional Governor, &c.

The above statement presents the only objection made to tbe petitioner’s right of recovery.

His Honor gave judgment pro forma in favor ot the petitioner, and the defendants appealed.

Bragg and Haywood, for the appellant.

1. The marriage was void.

(a) There is no such thing as marriage by consent simply, in this State. State v. Samuel, 2 D. & B., 177; State v. Bray, 13 Ire., 289; State v. Patterson, 2 Ire., 346. See also Shelf. M. & D. 5; 2 Rop. 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 defacto officer of a de facto government. When that government ceased to exist, his office - came to an end. The proclamation of the President (26 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, Phil. Eq., 180. See Burke v. Elliott, 4 Ire., 355; Gilliam v. Riddick, 5 Ire., 370; State v. Robbins, 6 Ire., 23; Sioindellv. Warden, 7 Jon., 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 the 18th Oct. 1865 (c. xi) does not validate the marriage.

(a) The marriage being in itself void, the Convention had no power to render it valid. State v. Pool, 5 Ire., 105.

(b) The ordinance does not cover the case. The words in sec. 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. Sec. 4 covers only such action as took place whilst the late de facto State g-overnment was in existence, as is shown by sec. 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 April 27th and 28th 1865.

PhiUips de Battle, contra.

1. The marriage was valid when performed.

Cox was a de facto justice of the peace on the 15th of June 1865. That the government of which he was partwas 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 Ms oion purposes in regard to preserving the peace, &c., he may impliedly confer upon them an exequatur. The proclamations referred to do not amove the officers 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 June 121865 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 laio. By that, mere conquest does not remove the civil officers of the conquered as regards everyfunction. Dana’s Wheat, s. 347 n. 2, &c. 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 28th April 1865, dated at Richmond, Va. 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 inserted 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 October 19, 1865.

2. The ordinance of the 18th 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., s. 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.

Pevbsox, C. J.

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 v.alid, 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 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 oí 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 torongfully 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 vrrongfid, and the war waged by the United States rightful, is a conclusion upon which no mind, accustomed to legal investigation, cannot 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. State 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 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 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 non-observance oí 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 t-he 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, ch. 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 t-he 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 everything 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 Gov-men t.

In reference to marriages there Avas 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 Avas 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 cle facto, still it Avas 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,” &c, extending the remedy down to the date of the ordinance.

There is no error. Judgment affirmed. This Avill be certified to the end that further proceedings may be had in the court beloAv.

Per Curiam. Judgment affirmed.