James Moore Wayne

“ A charge of bigamy in a criminal prosecution cannot be proved by any reputation of marriage; there must be proof of actual marriage before the accused can be convicted. But in a civil suit the confession of the bigamist will be sufficient when made under circumstances from which no objection to it as a confession can be implied. ”

“ Smyth's veracity has not been questioned in any way. I cannot then but believe, that the paternity and legitimacy of Myra Clark Gaines has been fully established, as the law requires it to be done. There is nothing in the case opposed to it, but those doubts and suspicions which will sometimes bear down truth, in its relation to the extraordinary realities of life. ”

“ No witness disproves any fact stated by her, her character for veracity rose above the attempt to assail her general reputation. It is not shown that she ever made statements out of court contrary to her testimony at the trial, and it is shown that the scandals against her, as they are reported by the witnesses of the defendant, are made more than improbable, by an exemplary life sustained there, and carried by her through forty years into a respected old age. ”

“ Then I say, that the laws of Spain as they were in the provincial condition of Louisiana, concerning marriage and divorce, and in every other respect, by the laws of nations, and by the act of Congress of 1804, organizing a government for New Orleans, remained in force there until legislatively repealed. Now, we learn from those laws, that they provided for sentences of the nullity of marriages and for divorces. From the same law, we learn that marriage could not take place, if there existed any canonical or civil impediment. ”

“ In an inquiry to deprive a child born in wedlock of its legitimacy, on account of the non-access of the husband, the law requires certainty as to the time of absence, and without it, a child's filiation and its inheritance cannot be taken from it, by any comparison of witnesses or inferences from evidence. ”

“ Coxe in the strongest light against Madame Despau, upon a presumption only, however, that she knew Caroline to be the child of Clark, and that she was not the child of Desgrange. I say knew, apart from that intuitive perception, which is not evidence, which women have in other matters, and especially concerning such as we are speaking of, bringing them to a conclusion with the quickness of instinct, and which are only uncertainly reached by men, after a comparison of facts with the instincts of their own nature, without that of women to aid them. ”

“ If from the time of the illegal disposition or sale of her father's estate by his executors, she is not so. If from the character in which she sues to establish a right of inheritance, there is statute of prescription to bar her rights.
Those of us who have borne our part in the case will pass away. The case will live. Years hence, as well as now, the profession will look to it for what has been ruled upon its merits, and also for the kind of testimony upon which these merits were decided. The majority of my brothers who give the judgment stand, as they well may do, upon their responsibility. ”

“ The law of which we are speaking is one which declares that certain criminal impediments to marriage, mentioning only some of them, shall not excuse a woman from being an adulteress, when she has been either 'married or betrothed before the holy mother, the church.' But bigamy is not an impediment in the sense in which that word is used canonically in respect to marriage. ”

“ The deficiency in the record of divorce is the want of the petition. In every other particular it is perfect. So much so that it discloses the object of the petition, or the cause for which the suit was brought, and for which the judgment of the court was given. ”

“ I understand that the credit of a witness may be impeached, 1st. By the results of a cross-examination. 2d, By witnesses called to disprove such of the facts stated by the witness whether in his direct or cross examination, as are material to the issue. 3d, By evidence reflecting upon the character of the witness for veracity. Under this the evidence must be confined to general reputation, and particular facts will not be permitted, for the law presumes every one to be capable of supporting the one, and that it is not likely that a witness, without notice, will be prepared to answer the other. ”

“ Such was the law of Louisiana when Desgrange was prosecuted for bigamy, and when Zulime was forced into it as a witness. I known of but three exceptions to the incompetency of a wife to testify against a husband in a criminal case; they give to her ample security against abuse. She is a competent witness in an inquiry against her husband, upon a charge which affects her liberty or person. Such, for instance, as a prosecution for a forcible marriage, though she may have cohabited with him. ”

“ The right of persons to marry in every country where they may happen to be, is not denied, if there be no impediment there or in the condition of the parties in respect to the law of their domicil to prevent them from contracting marriage. Before, then, the validity of the marriage of the complainant's father with her mother in Philadelphia, can be denied, it must be shown that they could not contract it on account of a legal disability either there or in Louisiana. ”

“ In conclusion upon this point, the law declares that bigamy makes a marriage void as if it never had been, replaces the parties as they personally were before such a connection, and though it may be expedient to have a sentence of its nullity declared for the purpose of restoring rights of property, it is not necessary to enable the party imposed upon to marry again. ”

“ It has been said that the invalidity of a marriage in a civil suit, on account of those causes which make it void ab initio, particularly in the case of one void on account of the bigamy of one of the parties, may be proved by the admission of the fact by that party. It so happens in this case that Desgrange's admission of his bigamy, excluding his admission of it to Zulime's family for the present, is proved by a witness whose testimony has not been assailed and cannot be. ”

“ I shall state the evidence hereafter, keeping myself now to the point of the jurisdiction of the court in rendering a judgment of divorce. It having been shown that the provincial law of Louisiana was in force when the judgment upon Zulime's petition was given, it follows, as the County Court of New Orleans was constituted with a civil jurisdiction, comprehending also what had been before exclusively ecelesiastical, that the court could only grant divorces a vinculo, for the same causes for which they could have been given by the ecclesiastical courts. ”

“ The regular mode of examining into the character of the person in question, is to ask the witness whether he knows his general reputation among his neighbors-what that reputation is, and whether from such knowledge he would believe him upon his oath. ”

“ What is the effect of the judgment? It is one of a court of record having jurisdiction of the subject and over the parties to the suit. It annuls the bonds of matrimony-as the act of a competent tribunal the judgment must be presumed to have been rightfully rendered, until the contrary appears. This rule applies as well to every judgment or decree rendered in the various stages of a cause, from initiation of a suit to the final adjudication, affirming that the plaintiff either has or has not a right of action ”

“ The petition, in such a case, is not admissible in another suit against the petitioner, because, not being sworn to, its language is regarded as merely the suggestion of counsel, made for the purpose of bringing in a defendant to answer. An answer in chancery, put in under oath, is receivable against the party who swears to it; but that the narrative part of a bill in equity, or a declaration at common law can be used in another suit against the plaintiff in the first, has never been decided. ”

“ In proof also of the marriage and of the child's legitimacy, they rely upon the facts that Clark made large provisions of fortune for her in trust to others, to whom he declared her to be his legitimate child when the trusts were made, and that a short time before his death, he made a will in her favor as his universal legatee, in which she was declared to be his lawful child, about which will he spoke with anxiety and penitential affection within an hour before his death, as having by that act repaired the wrong he had done her. ”

“ Harper, who nursed her, does the same. Each of them also speak with positiveness concerning the will of 1813. With three such witnesses to sustain them, I believe that Mesdames Despau and Caillavet have spoken the truth concerning Clark's marriage with Zulime. If they did not, the testimony of Bellechasse, Boisfontaine, and Mrs. Smyth, is the most remarkable coincidence of truth with falsehood that has ever happened, and it can only be resisted by imputing to all of them, a combination to perjure themselves for the same purpose. That no one has said or can believe. ”

“ Legitimacy is the lawful consequence of lawful marriage and it cannot be taken away by any subsequent misconduct of parents in respect to the marriage itself. Heirship, or the right of legitimate children to inherit from deceased parents, depends upon the law of the place where the property may be. ”

“ The defendants deny the marriage between the complainant's father and mother; and if there was a marriage, they contest its validity on account of her mother having then another husband alive. It is admitted that a marriage had been solemnized between her and Jerome Desgrange, but the complainant shows by competent testimony sufficient to establish the fact that Desgrange was a married man, with a wife alive when he married her mother. ”

“ Its utmost weight, in respect to her, is to diminish the force of her declaration, in respect to the filiation and legitimacy of her child, and that very remotely. Her acts and conduct are at variance with the deposition; the last was taken when she had been for some time separated from Desgrange, avowedly for his bigamy in marrying her. She had not lived with him for more than a year, and did not at any time afterwards live with him. When the prosecution of Desgrange began she was living with her family. When Desgrange was released from prison no steps were taken by either for a reunion. ”

“ The civil impediments are those which proceed from want of understanding, & c., &c., and from previous marriage, the wife or husband of the party contracting a second marriage being alive. For such causes as have just been stated, divorces could be granted a vinculo matrimonii. Such was the law of marriage and divorce of the Catholic church, so it is still, and it was the law of Louisiana before its transfer to the United States, and afterward until it was legislatively repealed, and by it the judgment was given which divorced Zulime from Desgrange. ”

“ To the objection that there had not been a sentence of the nullity of the marriage with Desgrange, the complainant answers, that when a marriage by the canon law and as it then was in Louisiana, is ipso facto, null and void, that no declaratory sentence of nullity is absolutely necessary, though it may be expedient to have one, to reinstate the parties in their original unconnected condition. ”

“ But when it is attempted to impeach a witness on account of a want of moral character, it cannot be done by the impeaching witness 'merely stating what he has heard others say, for those others may be but few. He must be able to state what is generally said of the person, by those among whom he dwells or with whom he is chiefly conversant, for it is this only which constitutes his general character.' The impeaching witness, too, should be from the neighborhood of the individual whose character is in question. ”

“ Clark, and stayed with him constantly, till he died. The day before he died, Mr. Clark, speaking of his daughter Myra, told me that his last will was in his office-room below, in the little black case; that he could die contented, as he had insured his estate to her in the will. He mentioned his pleasure that he had made his mother comfortable by an annuity in it, and remembered some friends by legacies. He told me how well satisfied he was that Chevalier De la Croix, Judge Pitot, and Bellechasse, were executors in it, and Chevalier De la Croix Myra's tutor. ”

“ The rule in such cases is, that where the marriage is valid by the lex loci, it will generally be held (not universally) valid everywhere for the purposes of inheritance. If invalid there, it will generally (not universally) be held invalid everywhere. But in either case, the exceptions grow out of law. They must be shown to exist as such, before the right of heirship can be excluded. ”

“ Coxe, have been used to discredit Madame Despau's sworn evidence concerning a transaction in which Coxe discloses Clark to have been the criminal transgressor, and Madame Despau at most, only as the attendant of a frail sister to aid her in her travail, and to shelter her and her family from disgrace. There are those whom the weak, the unfortunate, and the wicked have natural claims upon, not disallowed by the law, and the discharge of which, without a violation of law, it does not even reproach. ”