Throughout our consideration of this appeal we have all been concerned to know, for such effect as it might properly have upon the question presented, what applicable laws, if any, came down to us from the days of Spanish and Mexican sovereignty. In other words, were the provisions of the Council of Trent, with their attendant condemnation of consensual marriages, in force in New Mexico at the time of American occupation? If so, the influence of this historic fact upon the question before us?
Professor J.B. Thayer, who teaches Roman and Civil Law in Harvard Law School and is possessed of special knowledge upon the subject, as a friend of the court, submitted his views upon this abstruse historical question in a memorandum for which we express our appreciation. We have his consent to quote the same reading as follows: "A marriage by mere consent without public ceremonial was valid by the Canon or ecclesiastical law until the Council of Trent (1563). Before that date there had been much legislation in Spain, steadily increasing in severity, penalizing such marriages without rendering them void. These culminated in a decree of Ferdinand in 1505 whereby the parties to such a marriage forfeited all their property, and were banished from Spain, the same being true of any witnesses. It should be noted that the phrase `clandestine marriage' applies equally whether the contract is made with or without witnesses, the desideratum being the presence of a priest or state officer. An account of the *Page 413 above mentioned statutes may be found in Friedberg (Emil), Recht der Eheschliessung, 71 ff. After much argument the Council of Trent pronounced `clandestine' marriages to be void. In spite of the opinion of the U.S. Supreme Court in the Hallett case I can find no doubt whatever in the Spanish books as to the immediate and absolute effect of the provisions of this council in all the Spanish dominions. Spain was then the `most Catholic country' engaged in upholding the Papacy everywhere, and the forms of marriage were then universally a question subject to the exclusive jurisdiction of the church. The Enciclopedia Juridica Espanola, s. v Concilio de Trento (7.908), says that `it is unnecessary to remark that the canons and decrees of the Council in so far as they had a general character had obligatory force in the Spanish church.' It adds that `for greater assurance Philip the Second decreed that the Council's provisions should be "respected, accomplished, and executed" in the Spanish dominions.' This decree is to be found in the Novisima Recopilacion, Lib. 1, tit. 1, ley. 13, which in the preamble speaks of our `kingdoms, states, and seignories,' and later of `these our kingdoms,' and addresses itself to `the Archbishops, bishops, and other prelates, and the Generals, provincials, priors, guardians of the orders and all others concerned.' Moreover, of the arguments for the new regime made in the Council one was the abuse of the `clandestine' marriage which had grown up in New Spain, see Cardenas, El matrimonio en sus relaciones historicas con el estado, p. 14 (extr. from the Revista de Espana vol. 55). Friedberg, op. cit. 131 ff., notes that all the Latin American countries which have since dealt with the point incorporate the rule of the Council without question. Subsequent penalties for illicit marriages in Spanish law before the Code referred to the `Indies and the islands' as a matter of course, cf. the final note to the 49th ley de Toro, in the 3ed of Llamas y Molina's commentary on the said laws. From all this I conclude that the law of the Spanish colonies at any rate in theory did not recognize informal marriages after 1563. The argument of the U.S. Supreme Court from the Recopilacion de los Indios is not cogent, as that referred only to special colonial legislation and obviously did not attempt to reproduce the Spanish common law."
The authorities submitted and quoted by him to prove that the United States Supreme Court made a mistake in an historical fact in asserting in Hallett v. Collins, 10 How. 174, 13 L. Ed. 376, that the provisions of the Council of Trent relating to marriage were not put into effect in the Spanish dominions, quite satisfy my mind of the correctness of his conclusion. Nevertheless, New Mexico was then (1850) a territory. The United States Supreme Court was the highest court of review for such territory. From the time of that decision in 1850, certainly until statehood in 1912, the pronouncement of that court stood as the law of this territory and, as stated in the opinion of Mr. Justice BICKLEY, until corrected or changed would have been held decisive upon the same question arising in a case from this territory. *Page 414
But, aside from this consideration, the reasoning of Mr. Justice BICKLEY, viz., that if the Council of Trent was ever in effect here, it was rendered innocuous as to its penalties by succeeding territorial legislation and by the judicial utterances of this court in Field v. Otero, and Beals v. Ares, declaring the extent to which the civil law has survived legislative efforts to deal with the same subject matter, are quite persuasive. I am unable to escape the force and logic of this reasoning.
Incidentally, the facts in the Hallett Case emphasize the far-reaching effect of the decision of the majority in the case at bar. In that case our highest tribunal had before it in 1850 the validity of a marriage contracted in 1811, nearly half a century before. In the Patton Case from Louisiana, cited both in the majority opinion and the dissenting opinion of Mr. Justice BICKLEY, the validity of a marriage antedating the opinion some 45 years was determined.
Furthermore, as reflected by inquiries reaching the office of the Attorney General of the state and of the territory, and as all must recognize, not infrequently a man and a woman who have contracted marriage in the best of faith, in attempted compliance with the letter of applicable governing statutes, have a doubt arise as to the validity of such marriage. Does the fact that the officiant at the marriage, though an ordained minister, was a convict, affect its validity (inquiry of Attorney General)? Is the marriage invalid because the officiating magistrate had not duly qualified by filing his bond, or taking his oath of office? Or, because he officiated outside his precinct or county? Or, because the minister was not duly ordained? Does the destruction by fire or otherwise of the official record of the marriage expose to question the relationship, if other proof of formal compliance with statutory regulations be wanting?
These, and as many other questions as fortuitous circumstance or failure to observe literally the performance of regulatory statutes can suggest, may arise to haunt and trouble the minds of wholly innocent couples who have dwelt together for years in the security of a conviction that a relationship thus sanctified by mutual consent, love, and confidence, furnished the substance, and compliance with statutory regulations the mere form, of validity. Has their relationship over the years been one of concubinage? Are the children born to them illegitimate?
This is not to intimate that correct legal opinion would dictate an affirmative answer to any of these inquiries. It is only to remind that such questions have arisen in the past and will arise in the future to plague and torment the lay minds of parties to marriages subject to any of said inquiries — parties wholly innocent of wrongdoing.
Until the pronouncement of the majority in the case at bar, the common-law marriage considered as a valid institution (and conceded by them as having the great weight of judicial authority in America to support it, even though the matter had never been formally decided by our territorial or state Supreme Court) has justifiably afforded a burying *Page 415 ground for all such fears, apprehensions, and misgivings, real or imaginary. It can do so no longer.
For the Legislature in its wisdom and as a matter of state policy to enact that the right to contract a common-law marriage shall no longer exist is one thing. For us by judicial decision to say it never did exist is quite another. We are here declaring the state of the law in so far as it has been defined by statutory enactments and judicial decisions. Thus far those enactments have not by any word declared the common-law marriage void. But the Legislature has taken occasion to declare certain other marriages void. It should, I think, mark any change in a state of the law which trained legal minds, and a fortiori the lay mind, with abundant warrant may have felt to exist.
A legislative enactment would operate wholly prospectively. If our decision of the question had only such effect, it would not be fraught with such fateful consequences. It may even be conceded that some of the considerations which formerly argued so forcefully for the validity of the common-law marriage no longer exist. But the effect of the majority opinion is to say there never was a valid common-law marriage within the territorial confines of the territory (now state) of New Mexico. To that view, I cannot subscribe. The consequences which may attend such a holding are vividly portrayed in the language from Holder v. State, 35 Tex.Crim. R., 29 S.W. 793, with which Mr. Justice BICKLEY closes his opinion.
I concur in his dissent.