BASKIN, C. J.,
after stating the foregoing facts, said:
The only contention in this case is whether, in respect to the plaintiff and defendant, the legal status of marriage arose ■ from the ceremony performed in the Logan Temple. Appellant’s counsel contend that it did not, and in support of that contention claim:
I. That Mary Ann Knell, under and by virtue of the common law, was the legal wife of the defendant at the time of his alleged marriage with the plaintiff, and that the latter is therefore a plural wife.
There was no statute on the subject of marriage in 1 Utah until the passage by Congress of the Edmunds-Tucker law. which went into effect on March 3, 1887. 24 Stat. 635, c. 397 [U. S. Coinp. St. 1901, p. 3635]. In the absence of any such statute, the common [277]*277law on the subject of marriage was in force. For that reason counsel for appellant contend that the cohabitation of Mary Ann Knell and the appellant, and his declarations and acts respecting the same, after the death of his first wife and before his alleged marriage with the plaintiff, disclosed by the testimony, show that Mary Ann Knell, under the common law, was the legal wife of the appellant at the time of the alleged marriage. “At common law marriage is the voluntary union for life of one man and one woman, to the exclusion of all others.” 2 Nelson, Div. and Sep., sec. 575; Roche v. Washington, 19 Ind. 57; Olson v. Peterson (Neb.), 50 N. W. 155; Henry v. Taylor, 93 N. W. 641-643; Hyde v. Hyde & Woodmansee, 1 Law Rep. Prob. Div. 130; In re Bethell, 38 Law Rep. Ch. Div. 220. “All of the authorities concur in the conclusion that marriage has it origin and foundation in a purely civil contract.” 1 Bishop, Mar. and Div., sec. 37; Little v. Little, 13 Gray 266.
In the case of Maynard v. Hill, 125 U. S. 190, 210, 8 Sup. Ct. 723, 31 L. Ed. 654, 659, Mr. Justice Field, in the opinion, said: “It is also to be observed that, whilst marriage is often termed by text-writers and in decisions of courts a civil contract — generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization — it is something more than a mere contract. The consent of the parties is, of course, essential to its existence; but, when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released, upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities.”
In Randall v. Krieger, 23 Wall. 137, 23 L. Ed. 124, 126, Mr. Justice Swayne said: “Marriage is an institution founded upon mutual consent. The consent [278]*278is a contract, but it is one sid generis. Its peculiarities are very marked. It supersedes all other contracts between the parties, and with certain exceptions it is inconsistent with the power to make any new ones. It may be entered into by persons under age of lawful majority. It- can neither be cancelled nor altered at the will of the parties upon any new consideration. The public will and policy controls their will. . . . Perhaps the only element of a contract, in the ordinary acceptation of the term, that exists, is that the consent of the parties is necessary to create the relation.”
The legal status of marriage' rests solely upon the basis of a civil contract, in which the contracting parties mutually consent and agree to be bound by the “various obligations and liabilities” which by operation of law arise from the relations of the contracting parties upon the consummation of the marriage. One of the essential obligations of a valid marriage contract is 2 that which binds the parties to keep themselves separate and apart from all others, and cleave to each other during their joint lives. Therefore any contract in which the parties fail to consent and agree to so live together is void, and the legal status of marriage cannot arise therefrom. •
In the case of Hyde v. Hyde, supra, it áppears that the petitioner, Hyde, in 1853, at Salt Lake City, Utah, married Miss Hawkins. Both were members of the Mormon Church, and Brigham Young, president of the church, performed .the marriage ceremony. They cohabited as man and wife in said city until 1856, when Hyde apostatized and went to England. Afterwards his wife was married to Woodmansee and Hyde instituted a suit for divorce in England, and alleged as a ground the adultery of his wife. Both Hyde and Miss Hawkins were single at the time they were married, and polygamy was a part of the Mormon doctrine, atíd was prevalent among the members of that church. Lord Pen-zance, before whom the case was tried, said: “It is necessary to define what is meant by ‘marriage.’ In [279]*279Christendom it means the nnion of two people, who promise to live through life alone with one another. It does not mean the same thing in Utah, as a man is at liberty to marry as many women as he pleases. It would he extraordinary if a marriage in its essence polygamous should be treated as a good marriage in this country. Different incidents of minor importance attach to the contract of marriage in different countries in Christendom, but in all countries in Christendom the parties to that contract agree to cohabit with each other alone. It is inconsistent with marriage as understood in Christendom that the husband should have more than one wife.” And he rejected the prayer of the complainant for that reason.
In re Bethell, supra, it appears that Bethell, an English subject, married Tepoo, who was a member of a semi-barbarous tribe of the Baralongs. Polygamy prevailed among the members of the tribe, and the marriage was consummated in accordance with the custom, which is as follows: “When the consent of the parents has been obtained, the bridegroom slaughters a sheep, a buck, an ox, or a cow. The head of the animal is taken to the bride’s parents, as also the hide, which is cleaned and softened. They are then considered married, and after the birth of the first child the number of the cattle previously agreed upon is handed over to the wife’s parents.” The doctrine of the case of Hyde v. Hyde was approved iand followed, and Stirling, J., after quoting from that case and from the opinion of Lord Brougham in the celebrated case of Warrender v. War-render, 2 Cl. & F. 532, 533, in which the same doctrine was held, said: “I conceive that, having regard to these authorities, I am bound to hold that a union formed between a man and a woman in a foreign country, although it may there bear the name of a marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England, unless it is formed on the, same basis as márriage throughout Christendom, and be in its essence [280]*280‘the voluntary union for life of one man .and one woman, to the exclusion of all others.’ ” •
We are of the opinion that, notwithstanding 3 celestial or plural marriage is one of the essential tenets of the Mormon Church, the legal status of marriage exists between parties who, in Utah, before the enactment of any statute upon the subject, through members of that church, have made a contract of marriage in which they mutually agree to assume and observe the .
Free access — add to your briefcase to read the full text and ask questions with AI
BASKIN, C. J.,
after stating the foregoing facts, said:
The only contention in this case is whether, in respect to the plaintiff and defendant, the legal status of marriage arose ■ from the ceremony performed in the Logan Temple. Appellant’s counsel contend that it did not, and in support of that contention claim:
I. That Mary Ann Knell, under and by virtue of the common law, was the legal wife of the defendant at the time of his alleged marriage with the plaintiff, and that the latter is therefore a plural wife.
There was no statute on the subject of marriage in 1 Utah until the passage by Congress of the Edmunds-Tucker law. which went into effect on March 3, 1887. 24 Stat. 635, c. 397 [U. S. Coinp. St. 1901, p. 3635]. In the absence of any such statute, the common [277]*277law on the subject of marriage was in force. For that reason counsel for appellant contend that the cohabitation of Mary Ann Knell and the appellant, and his declarations and acts respecting the same, after the death of his first wife and before his alleged marriage with the plaintiff, disclosed by the testimony, show that Mary Ann Knell, under the common law, was the legal wife of the appellant at the time of the alleged marriage. “At common law marriage is the voluntary union for life of one man and one woman, to the exclusion of all others.” 2 Nelson, Div. and Sep., sec. 575; Roche v. Washington, 19 Ind. 57; Olson v. Peterson (Neb.), 50 N. W. 155; Henry v. Taylor, 93 N. W. 641-643; Hyde v. Hyde & Woodmansee, 1 Law Rep. Prob. Div. 130; In re Bethell, 38 Law Rep. Ch. Div. 220. “All of the authorities concur in the conclusion that marriage has it origin and foundation in a purely civil contract.” 1 Bishop, Mar. and Div., sec. 37; Little v. Little, 13 Gray 266.
In the case of Maynard v. Hill, 125 U. S. 190, 210, 8 Sup. Ct. 723, 31 L. Ed. 654, 659, Mr. Justice Field, in the opinion, said: “It is also to be observed that, whilst marriage is often termed by text-writers and in decisions of courts a civil contract — generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization — it is something more than a mere contract. The consent of the parties is, of course, essential to its existence; but, when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released, upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities.”
In Randall v. Krieger, 23 Wall. 137, 23 L. Ed. 124, 126, Mr. Justice Swayne said: “Marriage is an institution founded upon mutual consent. The consent [278]*278is a contract, but it is one sid generis. Its peculiarities are very marked. It supersedes all other contracts between the parties, and with certain exceptions it is inconsistent with the power to make any new ones. It may be entered into by persons under age of lawful majority. It- can neither be cancelled nor altered at the will of the parties upon any new consideration. The public will and policy controls their will. . . . Perhaps the only element of a contract, in the ordinary acceptation of the term, that exists, is that the consent of the parties is necessary to create the relation.”
The legal status of marriage' rests solely upon the basis of a civil contract, in which the contracting parties mutually consent and agree to be bound by the “various obligations and liabilities” which by operation of law arise from the relations of the contracting parties upon the consummation of the marriage. One of the essential obligations of a valid marriage contract is 2 that which binds the parties to keep themselves separate and apart from all others, and cleave to each other during their joint lives. Therefore any contract in which the parties fail to consent and agree to so live together is void, and the legal status of marriage cannot arise therefrom. •
In the case of Hyde v. Hyde, supra, it áppears that the petitioner, Hyde, in 1853, at Salt Lake City, Utah, married Miss Hawkins. Both were members of the Mormon Church, and Brigham Young, president of the church, performed .the marriage ceremony. They cohabited as man and wife in said city until 1856, when Hyde apostatized and went to England. Afterwards his wife was married to Woodmansee and Hyde instituted a suit for divorce in England, and alleged as a ground the adultery of his wife. Both Hyde and Miss Hawkins were single at the time they were married, and polygamy was a part of the Mormon doctrine, atíd was prevalent among the members of that church. Lord Pen-zance, before whom the case was tried, said: “It is necessary to define what is meant by ‘marriage.’ In [279]*279Christendom it means the nnion of two people, who promise to live through life alone with one another. It does not mean the same thing in Utah, as a man is at liberty to marry as many women as he pleases. It would he extraordinary if a marriage in its essence polygamous should be treated as a good marriage in this country. Different incidents of minor importance attach to the contract of marriage in different countries in Christendom, but in all countries in Christendom the parties to that contract agree to cohabit with each other alone. It is inconsistent with marriage as understood in Christendom that the husband should have more than one wife.” And he rejected the prayer of the complainant for that reason.
In re Bethell, supra, it appears that Bethell, an English subject, married Tepoo, who was a member of a semi-barbarous tribe of the Baralongs. Polygamy prevailed among the members of the tribe, and the marriage was consummated in accordance with the custom, which is as follows: “When the consent of the parents has been obtained, the bridegroom slaughters a sheep, a buck, an ox, or a cow. The head of the animal is taken to the bride’s parents, as also the hide, which is cleaned and softened. They are then considered married, and after the birth of the first child the number of the cattle previously agreed upon is handed over to the wife’s parents.” The doctrine of the case of Hyde v. Hyde was approved iand followed, and Stirling, J., after quoting from that case and from the opinion of Lord Brougham in the celebrated case of Warrender v. War-render, 2 Cl. & F. 532, 533, in which the same doctrine was held, said: “I conceive that, having regard to these authorities, I am bound to hold that a union formed between a man and a woman in a foreign country, although it may there bear the name of a marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England, unless it is formed on the, same basis as márriage throughout Christendom, and be in its essence [280]*280‘the voluntary union for life of one man .and one woman, to the exclusion of all others.’ ” •
We are of the opinion that, notwithstanding 3 celestial or plural marriage is one of the essential tenets of the Mormon Church, the legal status of marriage exists between parties who, in Utah, before the enactment of any statute upon the subject, through members of that church, have made a contract of marriage in which they mutually agree to assume and observe the . legal- obligations of that relation, and in pursuance of that agreement openly cohabit as man and wife and hold themselves out to- the public as such; but, in the absence of such, an agreement, the legal status of marriage cannot arise. This brings us to the consideration of whether it is shown by the evidence that the appellant and Mary Ann Klnell entered into a legal contract of marriage. During the life of the appellant’s first wife, and after her death, up to the 10th of May, 1885, the date at which the ceremony before a justice is alleged to have been performed, the appellant himself testified that he lived with Mary Ann Knell as his plural wife, and that both before and after the death of his first wife he introduced Mary Ann Knell as his wife. It also appears that he continued to cohabit with .his first and second plural wives, after the death of his first wife, until the death of Mary Ann Knell in 1899. It is 4 evident from these facts that no legal contract of marriage between the appellant and Mary Ann Knell was entered into previous to May 10,1885, or that at common law their status was that of husband and wife.
2. It is further contended by appellant that, prior to his marriage with the plaintiff, he, on the 10th day of May, 1885, entered into a formal marriage before a justice of the peace with Mary Ann Knell.
While it is clear that there was a formal ceremony 5 of marriage performed by the justice of the peace, we are not satisfied that it took place before the alleged marriage with plaintiff, or that the parties really [281]*281intended thereby to change their plnral relations, hut simply to disqualify Mary Ann Knell- as a witness. The appellant in his testimony states that one of his reasons for marrying Mary Ann Knell was to keep her from testifying in the event of his arrest. The plaintiff testified that the appellant, at the time she married him, told her that he had two plural wives, and in another connection that he told her about taking Mary Ann Knell to the justice of the peace and being married; that he said he got .a scrap of paper for Mary Ann Knell, so that it would throw her out in the trial, and that it answered that purpose. ■
In view of the foregoing testimony, and the fact that at the time the justice performed the ceremony Mary Ann Knell and Mary Roland were his plural wives, and that after the ceremony he continued to cohabit with both as his wives, as he had previously done, it is clear that the ceremony before the justice of the peace was a ruse resorted to for the purpose of disqualifying Mary Ann Knell as a witness, and not with the intention of disturbing his polygamic relations then existing, and refutes the idea that the parties intended to consummate a monogamic marriage.
3. The appellant also contends that he married the plaintiff as a plural wife.
It appears from the evidence that both the 6 appellant and the plaintiff were members of the Mormon Church; that the plaintiff, at the timé of her alleged marriage, was aware of the fact that the appellant had two wives; that the marriage ceremony was performed in the Logan Temple on the 9th day of November; and that the plaintiff, in the last week of the same month, went to the home of Mary Ann Knell, and was there introduced • as Mrs. Langford, and within a year or less from that time was moved by appellant to the home of Mary Ann Knell, and from thence for years these women lived together and cohabited with the appellant as his wives. The appellant testified that he married the plaintiff as a plural wife. In this he is corroborated [282]*282by the facts just stated. In view of the facts disclosed by the evidence, and that one of the essential tenets of the church to which the parties belonged was celestial or plural marriage, and that there is not any evidence showing the form of the ceremony performed in the Logan Temple, there is not the least probability that it was a monogamous marriage, uniting the contracting parties in wedlock for life, to the exclusion of all others, or that the parties mentally agreed that the appellant should observe or be bound by the legal obligations of a monogamic marriage.
"We are clearly of the opinion that none of the three women mentioned became the legal wife of the appellant, but that their relations to him were those of plural wives, and he did not, therefore,* incur the legal obligations of marriage in respect to either of them. We are, however, of the opinion that he became, and still is, 7 morally bound, not only, if able to do so, to support his plural wives but also to support and educate the children of the plural wives begotten by him; but, as secular courts are powerless to enforce any but legal obligations, the judgment must be reversed.
It is therefore ordered that the judgment be reversed, with costs, and the case remanded, with directions to the court below to dismiss the complaint.
BARTCH and McCARTT, JJ., concur.