This case presents the single question whether a marriage is of any validity in this state if effected only by present mutual consent of the parties, followed by cohabitation. Such relation is usually referred to as a common-law marriage. The question is not an easy one, and the court finds itself divided. All that can well be urged on the affirmative is embodied in the accompanying dissenting opinions.
If the common-law marriage, as such, has ever obtained legal standing here, it was on *Page 393 the occasion and by virtue of the sweeping statute of 1876: "In all the courts in this state the common law as recognized in the United States of America, shall be the rule of practice and decision." (Comp. St. 1929, § 34-101.)
Of this, later.
By great weight of American authority such a marriage is an institution of the common law which crossed the Atlantic with the colonists and became implanted here. By great weight of authority also, the ordinary state regulatory statutes, unless expressly so providing, have not made the common-law marriage void. This is held as a matter of statutory construction. The theory is that such statutes do not create a new right, merely regulate a prior existing right, and that violation of the regulations is attended by such consequences only as the statute prescribes. Thus far we readily agree with the minority.
Without questioning the soundness or wisdom of the decisions constituting this weight of authority, we reach a different conclusion because of the unique legal and social history of this state.
New Mexico was not an uninhabited territory or one occupied only by savages, colonized by an English speaking people, bringing their common law with them. The Americans invaded a foreign territory and conquered a civilized people. The American military commander, proclaiming a code of laws for the conquered territory and people, long before the peace, did not establish the common law. He declared that: "All laws heretofore in force in this territory, which are not repugnant to, or inconsistent with the constitution of the United States and the laws thereof, or the statute laws in force for the time being, shall be the rule of action and decision in this territory." Kearney Code, "Laws," § 1; C.L. 1897, p. 82, Revised Statutes and Laws 1865, p. 512.
As to matters of procedure, this was varied somewhat when the Organic Act (section 10) conferred on the courts "chancery as well as common-law jurisdiction." Browning v. Estate of Browning,3 N.M. 659, 9 P. 677. As to matters of substantive law, it gave way only to the general adoption of the common law, thirty years later.
In the meantime we were subject to that development of the civil law subsisting in the Spanish colonies, afterward in the Republic of Mexico, as modified by the Constitution and laws of the United States and by territorial statutes. Beals v. Ares,25 N.M. 459, 185 P. 780.
Affecting the subject of marriage, there intervened, in 1860, an act of the legislative assembly which we deem of controlling force. It provided: "It shall be lawful, valid and binding, to all intents and purposes, for those who may so desire, to solemnize the contract of matrimony by means of any ordained clergyman whatsoever, without regard to the sect to which he may belong, or by means of any civil magistrate." Comp. St. 1929 § 87-102.
The first thing to be noted about this statute is that it is not regulatory in its language or apparent intent. It requires nothing of the *Page 394 parties not before required. It seems to grant rights not understood to exist before. It cannot be read, in the light of historial facts, without gaining the impression that, in the belief of those who framed and passed it, the only valid marriage theretofore was one celebrated by a Roman Catholic priest.
Such may or may not have been the state of existing law. On that question, at this late time, we shall not assume to speak with assurance. But, in construing the statute, the manifest belief of the Legislature is nearly if not quite as important as the fact itself. The fact itself depends upon whether the Council of Trent (1563) had been proclaimed by the Spanish sovereign as effective in Mexico; a matter concerning which not all agree.
If we were to yield to the opinion of the Supreme Court of the United States (Hallett v. Collins, 10 How. 174, 13 L. Ed. 376) as to the historical fact, and say that the Council of Trent had efficacy in the American Colonies as ecclesiastical law only, it would not greatly alter the case. These early legislators may have been mistaken on a fine point of law, living as they did, remote from the centers of learning. But they must have thought that some law, if not the Council of Trent duly proclaimed, made a mere consent marriage invalid. If they understood the law to be, as now contended, that no solemnization was then necessary, it was pure supererogation to give validity to the act of an ordained clergyman or a civil magistrate.
According to the familiar canon, to authorize an ordained clergyman or a civil magistrate to give validity to a marriage contract by solemnizing it, is to deny validity to marriages celebrated by others. If a marriage solemnized by an unordained clergyman would be invalid, a fortiori one not solemnized at all would be invalid.
The practical effect is as if the Council of Trent was the law of the land, and the territorial Assembly then modified it. So it seems to us, and so we think the law stood when the first regulatory statute was passed in 1863 (Laws 1862-63, p. 64), requiring registration and prescribing penalties. This later statute and those succeeding it have not the background of the common-law right. The pre-existing right involved the sanction of clergyman or magistrate.
We may well admit that the punishable failure of the clergyman or magistrate to record his act, under the 1863 statute, would not invalidate the marriage. When we have thus admitted, we think that we have given full force to the rule of statutory construction according to which the common-law marriage has survived statutory regulation.
In this view of the case, there can be no merit in a contention that the broad enactment of 1876 introduced the common-law marriage into New Mexico. The matter was already covered by local statutes. Cf. Beal v. Ares, supra.
It is strongly urged that Hallett v. Collins, supra, is to the contrary of our conclusion and controlling.
That decision held nothing directly as to New Mexico, and nothing directly as to common-law marriage. It held that the clandestine marriage, known to the civil law *Page 395 before the Council of Trent, was valid in the Spanish colony of Louisiana. In that conclusion it gave great weight to the decision of the Supreme Court of Louisiana (1846) in Patton v. Philadelphia, 1 La. Ann. 98.
The Patton Case is not persuasive here. Its theory is: First, that the kings of Spain did intend "that their adoption of general councils should extend to all countries which they might subsequently discover or acquire." Second, that the Council itself, as interpreted by the Popes, contemplated that its rigors might be relaxed by the temporal sovereigns "when they deemed it necessary to the public good * * * without the Popes or Bishops ever having considered the exercise of that discretion as an encroachment upon the rights and privileges of the Church." Third, that the king had abated the strict requirement of the Council "in the remote settlements of new colonies, yet unprovided with either churches or priests." This, on proof satisfactory to that court. Fourth, that the commandant who celebrated the marriage in question had declared that "he was authorized by the government to do so," which required application of the rule, for which it cites U.S. v. De la Maza Arredondo, 6 Pet. 714, 8 L. Ed. 547, that no one but his superiors could question the authority.
How does that theory affect our case? True, the Supreme Court of Louisiana doubted, though it conceded arguendo, that the real cedula of Phillip II, of 1564, put the Council of Trent in force in Louisiana. The doubt was not based upon any deficiency of the language of the royal decree to give it effect in the colonies. It was based on the fact that Louisiana had not been discovered at that date. But Mexico had then been subjected, and New Mexico explored and claimed.
Conceding that the Spanish king might have moderated the rigor of the Council of Trent for Mexico without offense to the church, we have not the evidence of his having done so that the Louisiana Supreme Court accepted. Nor did that evidence indicate, or either the Louisiana Supreme Court or the Supreme Court of the United States hold, that the Council was moderated to the extent of dispensing with solemnization or celebration. The relaxation consisted merely in providing other official celebrants in the persons of civil magistrates. That is just what the territorial Assembly did in 1860, extending the authority also to the non-Catholic clergy. It acted by the same right by which the Spanish sovereign is assumed to have acted in Louisiana. The fact that it did so act is evidence of the necessity for it; that is, that the Spanish or the Mexican government had not previously so acted.
We might admit the doctrine of U.S. v. De la Maza Arredondo, supra, with no effect upon the question before us.
The clandestine marriage sustained by the Louisiana Supreme Court, and by the Supreme Court of the United States, is not the common-law marriage at all. It was valid even if one of the parties was incumbered at the time with a living spouse, so long as the other party acted in good faith and was deceived. Patton v. Philadelphia, supra. If such was ever the law in New Mexico, *Page 396 it cannot have survived the adoption of the common law in 1876.
Of course the Hallett decision was binding upon us as a territory. If it had established the validity of a common-law marriage, we should not think of holding otherwise now. Indeed all would have accepted it, and the present case would not be before us.
But all that there is in that decision to give us concern is the evident opinion of the court that the Council of Trent had nothing but ecclesiastical authority behind it in the Spanish colonies in America. The reason given by Mr. Justice Grier for so concluding is not entirely convincing, and the question is one pertaining more to historical than to legal science.
Even if that conclusion is correct, it does not greatly matter. All that it suggests is the argument, by analogy, that if the common-law marriage could survive regulatory statutes not expressly invalidating them, the clandestine marriage could survive such regulations. The analogy fails when we consider that before the course of statutory regulation began, the clandestine marriage had been abolished. The act of 1860, according to one view, abolished it; according to another, is sufficient evidence of its earlier abolishment.
If the Supreme Court of the United States was right, and the territorial Assembly wrong, as to the historical fact, we still think that the former would have sustained the territorial Supreme Court in interpreting the act of the latter (1860) as we interpret it here; not only because the interpretation is correct, but in conformity with the general rule as to the great weight to be given to a decision by the highest court of a territory as to its history and customs and as to construction of local laws. Halsey v. Ho Ah Keau (C.C.A.) 295 F. 636; Notley v. McMillan (C.C.A.) 16 F.2d 273; Territory of Hawaii v. Gay (C.C.A.) 52 F.2d 356; Yoshizawa v. Hewitt (C.C.A.) 52 F.2d 411, 79 A.L.R. 317.
It is urged, as an unfortunate consequence of what we hold, that children of innocent parents may be bastardized. But, recalling the ease with which a mere adulterous relation may become, in the mouths of interested and unscrupulous witnesses, a common-law marriage, an opposite conclusion promises the same or worse results of illegitimacy and upsetting of titles.
We think that irregular marriage is now, and has been in the past, as little practiced in New Mexico as elsewhere. In 1860 the non-Catholic population was inconsiderable. The edicts of the church were deemed highly binding upon conscience. Marriage was generally regarded as a sacrament. The Act of 1860 reflects the view that the law of the church in that regard was the law of the state. No doubt, with the influx of men from the east, irregular alliances were formed with native women, some of them perhaps marriages according to the common law. This situation was rather effectively cleared up by the Edmonds-Tucker Act (USCA title 18, § 519), in force here from 1887 until statehood. While it did not itself effect the invalidity of any marriage or attempted marriage, it was in fact rigorously enforced, resulting in *Page 397 the postponed celebration of many, and in discouraging future alliances except according to the forms of law.
We consider that the alliance here involved did not constitute a valid marriage. The court below so held. The judgment should be affirmed, and the cause remanded, and it is so ordered.
WATSON, C.J., and ZINN, JJ., concur.