It must be deemed settled law in this state that the contract of marriage is simply a civil contract, differing from other contracts only in this, that it can not be rescinded at the will of the parties. It may be consummated by agreement per verba depresenti, without the presence of a magistrate or a clergyman, or the sanction of the church; but I can not assent to the proposition that an executory contract to marry at a future time, followed by cohabitation, will of itself constitute matrimony. It may be evidence in connection with other circumstances, from which a marriage in fact might be inferred. But in all cases, in order to establish that most sacred and honorable relation of husband and wife, there must have been entered into by the parties, an actual executed contract of present marriage.
But the great question in this case does not relate to the forms and ceremonies necessary to be observed to create the relation, but to the evidence necessary to establish the fact that the relation has been created in any form. For many purposes a marriage may be proved by evidence that the parties cohabited together as man and wife, held themselves out to the world as *Page 239 such, and were received among their neighbors and friends as holding that relation to each other. In the absence of any conflicting circumstances, such proof is often entirely satisfactory. Indeed, the law always presumes against the commission of acts involving moral turpitude in the actors. A life of illicit cohabitation involves the parties in a moral turpitude which in all civilized societies have excluded them from all intercourse with respectable people. And as the marriage of two persons is usually attended with some publicity, and if not in the first instance known to the community generally where the parties reside, is at least usually known to the families of the parties, and through them eventually made public, the fact that they are admitted into respectable society, raises a strong presumption in favor of the purity of the relation that exists between them. But whilst cohabitation as man and wife attended with the other circumstances referred to is evidence tending to show that a contract of marriage has at some time been consummated between the parties, it does not in itself constitute matrimony, nor afford conclusive evidence of the fact. Instances of illicit cohabitation occasionally occur in all communities, and the fact that it is esteemed so disgraceful to the guilty parties, presents a strong inducement on their part to endeavor to escape the odium, by assuming that the relation is sanctioned by marriage. Hence while upon questions of pedigree this circumstantial evidence has been held competent, in other cases it has been entirely rejected. Thus on trials for bigamy and civil actions for criminal conversation it has always been excluded, the courts holding in such cases that the marriage must be proved by direct evidence. There are other cases again, to which I shall have occasion to refer, and in which, whilst this evidence has been admitted, it has been held insufficient to overcome contrary presumptions growing out of other circumstances in the cases. It becomes necessary, therefore, to inquire into the reasons for this exclusion of evidence, which under some circumstances is deemed competent, and the principles upon which it is based.
As I have before observed, cohabitation attended with the *Page 240 other facts are merely circumstances from which marriage in fact may be presumed; but where facts are proved from which contrary presumptions arise, the former evidence fails, or at least is neutralized. It is said by a recent able writer to be"presumptio juris running through the whole law of England, that no person shall in the absence of criminative proof be supposed to have committed any violation of the criminal law, whether malum prohibitum or malum in se, or even done any act involving a civil penalty, such as loss of dower, c. And this presumption is not confined to proceedings instituted with a view of punishing the supposed offence, but holds in all civil suits where it comes collaterally in question." (Best on PresumptiveEv. 64, 65.) It is, I think, upon this principle that in such cases this evidence is excluded. Upon the trial upon an indictment for bigamy, the presumption against the commission of the crime stands opposed to the presumption against illicit intercourse, or that arising out of the circumstances which in a different case might be sufficient evidence of marriage. Between these presumptions courts of justice will not decide. On the trial of a civil action for crim. con. the same principle is applied. The action is penal in its nature. The damages given are not only compensatory but are often exemplary, graduated as a punishment upon the defendant for the outrage he has committed upon the general peace and good order of society. The act, therefore, for which the defendant is tried involves in its nature a civil penalty, and the presumption against its commission stands opposed to the presumption growing out of the circumstantial evidence before referred to. It is true, that in actions of this kind, there are other principles involved in the exclusion of this kind of testimony. The plaintiff, if an actual marriage exists, has it in his power generally to prove it. He knows who were present, and, therefore, should be compelled to adduce the best evidence — a principle which I may have occasion to apply to another aspect of the case.
These principles growing out of the presumption of innocence, have by no means been confined in their application to *Page 241 the two cases which I have been considering but have uniformly been extended to all cases calling for their application. Thus in the case of The King v. The Inhabitants of Twining, (2 Barn. Ald. 386,) the same principle was applied. The case involved simply the settlement of a pauper. A woman had been married to a soldier who soon after left for the East Indies. Within twelve months the woman married again, and the question turned on the validity of the second marriage. It was held, that the death of the first husband before the second marriage might be presumed and the latter was valid. Bailey, J. deemed it a case of conflicting presumptions — the presumption of the continuance of life being balanced by the presumption against the commission of crime.
The same rule has also been applied in a civil action for libel where the defendant had charged the plaintiff with the crime of bigamy, and attempted to justify by proving the truth of the charge. (Weimath v. Harmer, 8 Carr. Payne, 695.) The court held that the alledged former marriage must be proved by direct evidence, and the circumstantial evidence admitted in ordinary cases was rejected. So also in a suit of jactitation of marriage. (2 Wm. Bl. 877.)
In this country, the same rule has been applied. In Connecticut it has been applied on a trial for incest. (State v.Rosevelt, 8 Conn. 448.) In Maine, upon the trial of an indictment for adultery, (State v. Hodgskin, 19 Maine, 155,) and for a libel for divorce in Massachusetts. (Ellis v.Ellis, 11 Mass. 92.) Now these adjudications clearly show that the exclusion of evidence of cohabitation in proving a marriage in cases of bigamy is not an arbitrary exception to a general rule, but it is simply the application of general principles to a case which calls for their application, and should be extended to all cases of a like character. (See 13Mees. W. 260; 3 East, 198; 12 Verm. 604.) If, therefore, the same application of a general principle shall be denied to the case at bar, it may indeed be deemed an exception to the general rule. Why should this case be excepted from the application of this rule? The petitioner proved beyond cavil a marriage in fact between her father and mother, *Page 242 and that she was the issue of such marriage. Her mother was married by her maiden name. The executors insist that the mother had been previously married to one Schenck, and attempt to prove it by circumstances. If they succeed, they prove the mother guilty of the crime of bigamy, and bastardize the petitioner. Why should not as conclusive proof and as high a grade of evidence be required as would be required of the executors if they were attempting to justify in an action of slander brought against them by the mother for charging her with the crime of bigamy? The circumstances proved in this case would be sufficient, in the absence of conflicting circumstances, to raise a presumption in favor of a marriage with Schenck; but when an actual marriage is proved with Messerve, this presumption is overthrown.
Cases that have arisen in the admission of ancient documents without direct proof of their execution are very apposite to this case. By proving that a deed or other paper upon which the title in dispute may depend is over thirty years old, together with other circumstances not necessary to enumerate, a presumption of its genuineness arises and the court will allow it to be read in evidence without direct proof of its execution. But if it be proved that subsequently to the date of the assumed deed or instrument the supposed grantor actually executed and delivered a deed of the same premises to another grantee, the circumstantial proof of the former deed will be rejected, and direct proof of its execution will be required. A subsequent conveyance of the land previously conveyed would be a gross fraud, and hence the presumption against the commission of a fraud will, at least, neutralize the presumption arising from the circumstances in favor of the genuineness of the former deed, and exclude it from being received in evidence as an ancient deed. (Gilbert's Ev. 102; Gresl. Eq. Ev. 124; 4 Denio, 201.) In this case the second marriage would be a crime of the grade of felony and hence it raises a still stronger presumption. I am satisfied, therefore, upon this point alone, that the decision of the surrogate was erroneous. But I concur in the conclusions to which my brother Harris has come upon the other points in the *Page 243 case and am, therefore, in favor of affirming the decision of the supreme court.