United States v. Jennegen

26 F. Cas. 606, 4 D.C. 118, 4 Cranch 118

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: December 15, 1830
• Status: Published

Opinions

CRanch, C. J.,

delivered the following opinion :

The ground of the motion in arrest of judgment was, that the statute of James was not in force in Maryland on the 27th of February, 1801, when the laws of Maryland were adopted by Congress as the laws of this county.

By the Act of Maryland, 1706, c. 8, it is enacted, “ That the Act of Parliament made at,” &c., “ in the first year,” &c., “ of our Sovereign Lord, King Jamés ihe First,” entitled' “ An Act to restrain all persons from marriage until their former wives and former husbands be dead,” “and every article, clause, matter, and thing in the said act contained, shall be and are in full force, to all intents and purposes, within this province.”

It was objected by the counsel of the prisoner, that it was not competent for the legislature to enact a statute by reference to a foreign law. That if the Act of Maryland of 1706, c. 8, be taken strictly and literally, “ and every article, clausé, matter, and thing in the said act contained,” is to be in force in Maryland, then the legislature of Maryland has enacted, “ that if any person or persons within his Majesty’s dominions of England and Wales, being married,” &c.; so that the statute still applies only to persons in England and Wales.

But such could not have been the intention of the legislature of Maryland. Their meaning evidently was that the act should be, and actually was in force in Maryland, in the same manner and to the same extént, as it was in force in England and Wales.

The words, “ are in full force,” imply a recognition of the already existing validity of the statute of James, in Maryland; and such was the fact; for there had been prosecutions in Maryland, under that statute, as early as 1682. (See Kilty’s Report to the Legislature, p. 170.) So that, whether it was expressly reenacted by the Maryland Act of 1706, or was one of those English or British statutes which had been “ introduced, used, and practised by the courts of law or equity,” in Maryland, before the Revolution, it became the law of Maryland, under the 3d section of the Bill of Rights.

There can be no doubt, therefore, that the statute of 1 Jac. 1, c. 11, was in force in Maryland on the 27th of February, 1801, and by the Act of Congress of that date, [2 Stat. at Large, 103,] became part of the law of this county.

The motion for a new trial was because no evidence was given of the law of Pennsylvania, to show that the first marriage was conformable to the requisitions of that law.

The cases cited by the counsel of the prisoner, upon this point, seem decisive that the foreign law must be proved, and that the foreign marriage cannot be presumed, primd facie, to be valid unless the foreign law be given in evidence.

I think, therefore, that a new trial ought to be granted.