We have carefully considered the motion, and have examined the authorities for rehearing cited by appellees' counsel, and have been unable to arrive at different conclusions from those expressed in our former opinion.
One of the propositions that seems to be contended for in the motion is, that no valid marriage can be contracted in Texas without a compliance with the statutory provisions which regulate the subject.
This doctrine seems to have been adopted by the Court of Appeals as formerly constituted, as the rule applicable to prosecutions for bigamy. Dumas v. The State, 14 Texas Cr. App., 166. Whether under the provisions of the Penal Code defining that offense and prescribing the rule of evidence under which it must be established, the conclusion reached by that court was correct or not, is a question with which we have no concern.
As a proposition of universal application by which the civil rights of parties to matrimonial alliances not entered into in accordance with the statutes are to be determined, we can not assent to it.
The great weight of authority in the American States which have similar statutory provisions regulating the celebration of marriages, is undoubtedly against the doctrine.
This subject has been so often and so fully discussed, that no review of the authorities will be undertaken. They are fully referred to in the citations given below.
As we understand the law on this subject, as it prevails in nearly all of the States, it is, that marriage is constituted by the agreement of two parties, competent to marry, to become husband and wife in præsenti, or an agreement to assume that relation at a future date, followed by the actual assumption of the status; and that the concurrence of such facts constitutes a valid marriage, unless the law of the place requires the observance of some additional form or ceremony, and makes void all attempted marriages not celebrated in accordance therewith. Am. and Eng. Encycl. of Law, 514, 515, 517; 1 Bish. Marr. and Div., 283, et seq.
In the latter authority the rule is thus stated: "Marriage existed before statutes; it is of natural right; it is favored by the law. Hence, in reason, any commands which a statute may give concerning its solemnization should, if the form of words will permit, be interpreted as mere directions to the officers of the law and to the parties, not rendering void what is done in disregard thereof. Consequently the doctrine has become established in authority, that a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity."
Our statutes contain simple provisions defining what persons are not *Page 525 competent to marry, and what officials and ministers may celebrate the rites; providing for the issuance and return and record of licenses, and prohibiting the issuance of licenses to persons under certain ages without the consent of their parents or guardians. There is no provision or intimation, express or implied, that performance of any of these things shall be essential to the validity of a marriage, or that one contracted as at common law, without following these directions, shall be void.
Different language is used in the same statute with reference to marriages between persons of European blood and Africans or their descendants. It is said, that "it shall not be lawful for such persons to intermarry; and should any person as aforesaid violate the provisions of this article, such marriage shall be null and void."
Here we have both classes of provisions in the same statute; some directing how marriages may be solemnized, but not declaring those not celebrated in accordance with such directions to be invalid; and one which absolutely prohibits marriages of a certain kind, and declares that any contracted in violation of such prohibition shall be void. Applying the well settled rule of construction stated by Mr. Bishop to such legislation, we can reach but one conclusion.
But it is said that the history of marriages, and of the legislation and adjudications upon the subject in this State, discovers a general understanding that a compliance with some form prescribed by law is essential to the validity of the marriage, and discloses a policy that relations or connections assumed by men and women towards each other without the sanction of such a ceremonial should not be considered matrimonial, nor have the effect of marriages.
Whatever may be the weight that should be attached to deductions drawn from such a course of investigation and reasoning, furnishing, as it does, data somewhat vague and unsubstantial, a pursuance of it has, in our minds, tended to produce the opposite conclusion to that contended for.
The reference is to the "bond marriages" which prevailed in the early history of Texas, the laws passed to validate them, and the decisions of our Supreme Court on the same subject. Prior to the declaration of independence, the people of Texas were controlled by the laws of Mexico, under which celebration of a marriage by a Catholic priest was essential to its validity, or was supposed to be so. Lewis v. Ames, 44 Tex. 338; Nichols v. Stewart,15 Tex. 230; Smith v. Smith, 1 Tex. 621.
The country was largely peopled by those who came from States where the common law prevailed, and had received their ideas on the subject of marriage from different laws, customs, and religion from those prevailing in Catholic countries. They accordingly contracted alliances under bonds, assuming in this way sometimes the full matrimonial relations, and sometimes one of a temporary character. *Page 526
After the people of Texas declared their independence, they showed their conviction that all such unions, effected with matrimonial intent, contained all of the essentials of matrimony, by validating them. It is urged that the mere passage of the validating acts showed that these marriages were supposed to be invalid for the lack of the observance of proper legal forms. They were supposed to be void, or at least doubtful, because of the law which prevailed when they were contracted. The common law was not in force at the time, and no question as to the effect of such connection under that system of jurisprudence existed.
This fact explains the holding in Nichols v. Stewart, 15 Tex. 226 [15 Tex. 226], that the connection which existed between Sarah Grogan and Frederick Roe had no validity and constituted no impediment to the subsequent union between Sarah and Sowell, which was validated by the Act of June 5, 1837, and a like holding in Rice v. Rice, 31 Tex. 174, as to the relation between Clinton Rice and Orispey Van. But the case of Sapp v. Newsom, 27 Tex. 537, was one in which the legitimacy of the offspring of one of these bond marriages did not depend upon the validating acts, as they did not apply to the case of the party as claiming as the heir of one of the parties to such a marriage. The marriage was notwithstanding held to be valid, though it was contracted under the Mexican law, and by bond merely, without the presence of the priest. The rule there enunciated is approved in Lewis v. Ames, supra, in which the connection between Mrs. Page and Potter was held not to have constituted marriage, because it was not formed and kept up with matrimonial intent.
The ruling in Sapp v. Newsom, upholding the marriage by bond, notwithstanding it was not celebrated by a priest in conformity with the law then in force, was expressly based upon the conditions of society then existing and rendering extremely difficult the procurement of a priest in many localities. An interesting and instructive account of the state and habits of society of that period is given by Chief Justice Roberts in Lewis v. Ames, supra.
We do not claim that those decisions are authority for the proposition that marriages are valid when formed merely in accordance with the common law, without a compliance with statutory regulations, when there is nothing to prevent the parties from conforming to those requirements. But it can hardly be contended that there is found in those decisions, or in the laws and habits of society out of which they grew, any policy or spirit hostile to what are generally called common law marriages.
In Robertson v. Cole, 12 Tex. 361, Judge Hemphill, after reciting the statutory provisions regarding marriage, says: "It may, however, possibly be the law — at least it may be admitted as a point not necessary to be controverted in this case — that these requisitions are but directory, and that the consent of parties over the age would, of itself, without any peculiar ceremonies or statutory formalities, be sufficient to give validity *Page 527 to marriages. The statute has not in terms declared that marriages, for want of such formalities, shall be null and void." Again, on page 363, he says: "Whether the marriage, as in this case, be valid at common law by consent of parties or not, yet," etc., and proceeds to show that the plaintiff was entitled to a dissolution of the marriage on the ground of fraud.
If marriages can only be valid when the statute is followed, what is to be the result of marriages under forged licenses, or those celebrated under mistakes as to the character of the officers or ministers who may officiate? Are the offspring of such marriages to be bastards, or to be considered legitimate only by reason of the provision of the statute of descent? Rev. Stats., art. 1656.
We can come to no other conclusion than that when our State adopted the statute regulating marriages, which substantially prevails in most, perhaps all, of the States in which common law marriages are recognized, it took it with the construction which was generally placed on it; and that when the common law was introduced, it put an end to the idea that parties could only marry by the observance of some particular course of proceeding. Of course marriages outside of the statute are not to be encouraged, but the mischiefs to society to result from such practices ought to be prevented by the infliction of penalties on those who disobey the law, and not by treating the parties as adulterers and their offspring as bastards.
Coming to the application of the law to the case, our conclusion is, that when Oscar and Bettie Garland were emancipated their incapacity to form a valid marriage was lifted from them; they were free to marry; and if we are correct in the views before expressed, it required only their mutual consent to convert their previous moral union into a legal and valid marriage. That they did so assent is found by the judge below, when he says they continued to live together "as man and wife" for several months after they were freed.
Cases might arise in which it would be difficult to decide whether there had been such assent and continued living together as man and wife after freedom as to make the marriage binding. We are not troubled with any such questions here, as the facts found leave no room for them.
The relation which existed between slave men and women when they took each other for husband and wife with the consent of their masters, and in accordance with the prevailing custom, can not be accurately termed concubinage. It was natural and moral, was so recognized and sanctioned, and lacked only the legal capacity of the parties to make it lawful wedlock. That capacity came with their freedom, and no further reason existed why, if they choose, they could not invest their union with all the lawful incidents of marriage.
And even if it should be held that conformity with prescribed forms is essential to marriage, there is authority for the proposition that the *Page 528 marriage which had previously taken place in accordance with the custom of slave marriages would meet this rule. 1 Bish. on Marr. and Div., 162. As to this we express no opinion, however.
Before the Constitution of 1869 was ordained, facts had transpired which made Oscar and Bettie Garland husband and wife, and appellant Alice their legitimate child. We see no reason for changing our previous ruling, that if her parents at any time subsequent to her birth were lawfully married, Alice was thereby legitimatized by the operation of our statute of descent. Rev. Stats., art. 1656. We should have stated in our opinion that she was recognized by her father always. See Hartwell v. Jackson,7 Tex. 580.
As to whether or not the constitutional provision referred to took away from the appellant her legitimacy and capacity to inherit, which, without that provision, she would have had, we will not protract this opinion in any extensive discussion of that question. Several opinions of the Court of Appeals are cited, it which it seems to have been assumed that marriages which have taken place between negroes while they were slaves must, in order to be valid, have continued until the adoption of the Constitution. In none of them, so far as the facts are shown by the reports, was a decision of the question here involved necessary, and there seems to have been no discussion of it. How far the views expressed were influenced by the rules of evidence obtaining in prosecutions for bigamy, in which they were rendered, we can not tell. As before said, we can not agree to the proposition stated when sought to be applied in cases like this. None of the other authorities referred to in the motion, so far as we can discover from a careful reading of them, militate in the slightest degree against our opinion. Several of them seem to recognize the doctrine, though generally they are based on validating acts which cover all such cases as this.
There is one decision, and possibly more, holding to a contrary view as to the effect of a continuing to live together as husband and wife after emancipation. They are referred to in the citations which we have given. We consider that they are opposed to the decided weight of reason and of authority and to the justice of the case.
An authority to guide us is, we think, found in the case of Sapp v. Newsome, supra. There had been adopted validating acts intended to cure the supposed nullity of the bond marriages; but that which validated the marriage under which the heir in that case claimed was passed after the death of his father; so that if the marriage of his father and mother was null when contracted, the descent was at the death of the father cast on other parties, and could not be disturbed by subsequent legislation. But notwithstanding several previous acts which validated other bond marriages, but not that then in question, the court held such marriage to be good and valid without the aid of any legislation, and declared *Page 529 the child was legitimate. Now if the validating by the Constitution of certain marriages begun while the parties were slaves, and continued until the adoption of such provision or until death, should be held to annul all other marriages of slaves begun in like manner, but not continued so long, then equally should the validating acts of 1836 and 1837 have been held to invalidate the marriages of all persons so married who did not comply with their provisions. But such was not the holding, and we know of no rule of construction which would require that we decide differently.
It is urged that our decision, if adhered to, will have the effect to disturb titles which have been settled under a different view of the law. No decision of the Supreme Court has decided the question, so far as we are advised. In each of the cases in which it was suggested by the facts, intimations were thrown out in entire harmony with the decision which we have made. Besides, we are not advised that any different conception of the law has prevailed among the former slaves and controlled the distribution of their property. The probability is that the legitimacy of the children of slave marriages has been generally recognized. However that may be, we must declare the law as we understand it.
We are asked to add a finding to the facts stated in our former opinion, and we now adopt the facts found by the court below, upon which our decision was based.
The motion is overruled.
Motion overruled.