Sunday dispatch. [volume] (New York [N.Y.]) 1845-1854, 1852-03-28
THE FAMOUS BIGAMY CASE OF
CLAYTON VS.. WARDELL.
What constitutes a Marriage and what is
the decision Of the Law?

/ now pAoOCO oG t1iC uCdU VI bIllb
Catherine Ann Clayton, wife of Edwarl
Clayton, brought suit against the executor
of the will Of George G. Messerve. Mrs
Clay ton was the daughter of George Mes
serve whose father George G Messerve, by
the aforesaid will, directed his executor
Wardell to pay the income of $40 900 quar-
terly, to the son George Messerve, durin,
life, and after the latter's death, the prinoi
pal was to DO paid to his lawful issue, or i
none such, 10 certain other persons. Georg,
Messerve died and the question was, wheth
er Mrs Clayton was his legitimate daughter
The executor Wardell resisted the payment
Of the Sic, 900 to her until this point wai
decided.
The following were the circumstances O.
the case
One Schenok, being the reputed father o.
child with which Sarah Maria Youngs, (af
terward mother of Mrs. Claytop) was enci.
ente, was, in 1922, arrested under the bast-
ardy act, and entered into recognizances. Nc
further legal proceedings were had on this
point The infant was born, and Schenck
aad Sarah lived together as man and WIG,
in the house Of Sarahs mother, without any
previous ceremony of marriage. The infant
died shortly and the two then separated An
instrument in writing was drawn up between
them, as man and wife, mutually agreeing
to separation he, Schenok, promising
never to modest her person or property, and
one Joseph List, as the friend of Sarah, en-.
gaging to shield Schenck from any future
pecuniary or other claims on the part of the
young woman 1t had been understood, or
at any rate, taken for granted, that Sarah
and Schenck were man and wife during this
time, about a year; but still the connection,
by portion of their friends was looked upon
as involving degree of odium.
The parties all appear to have been illit
crate; as for their signatures of the instru
nent just mentioned, they affixed their
marks, not being able to write their names
Now the question was, whether this was a
legal marriage and binding to such degree
as to illegalize any second marriage, while
they both lived AS to the instrument OF
separation, of course that was only so much
worthless paper.
Within month after the separation from
Schenck, Sarah was by formal religious
ceremony married to George Wesserve; she
was married by the name of Sarah Maria
Youngs, and her age was but sixteen or
seventeen OF these, as offspring, came Cath
harine Ann Messerve, now Mrs Clayton.
Judges Harris, Ruggles, Hurlbut and Tay-
lor held, and 80 delivered their statement
and opinion that in this case, it is not con-
tended that there is direct evidence of sctu-
is attempted to establish the marriage by
secondary and presumptive evidence; by ev-
idencs of cohabitation; Of acknowledgment
Of marriage; Of the reception Of the parties
as husband and wife by their friends and
by proof of common reputation.
It was insisted upon the argument, that ss
the effect Of establishing the marriage with
Schenck, would be to prove the mother Of
Mrs Clayton guilty of bigamy, such mar
riage could only be established by direct
proof. But Judge Harris, the others coAcur
ring, said, am not prepared to concur in
this position know it has been said, that
upon a charge Of bigamy, 8 marriage in fact,
as distinguished from the Acknowledgement
and cohabitation of the parties, must be
proved. But this rule, even in the case Of
bigamy, is far from being we'll established
What weight the evidence of the admission
and acts Of the accused party is to have, in
establishing the fact Of a mRrrisge, must de-
pend very much upon the peculiar circum-
stances of the case But am unable to see,
why il should be necessary to prove the first
marrisge by eyewitness Of the ceremony, or
those who heard the marriage agreement
In other cases, the acts and admissions of q
party, even though he be accused of capi
tai offence, are evidence against him. 1t is
not easy to say why such evidence should
not be received, to prove marriage. What
weight the evidence should be allowed to
have, is quite different question. 1t may
not be sufficient to warrant conviction but
upon principle, it must be regarded as com.
petent 1t should be received for what it il
worth.
But the important question here, is wheth
er concedipg this sort of evidence to be com
petent, it is sufficient to establish a first mar
riage between Schenck and Sarah Maria
Youngs. Upon the most mature considera
ton, have come to the conclusion that it is
not
The period during which the parties CO.
habited was very short. The circumstances
Of that cohabitation are such as to afford
only slight presumption Of marriage. The
intercourse at its commencement was mere
tricious, and there is as much reason to sup
pose it continued so, as that marriage took
place.
Judge Harris went at greater length into
the various interesting points Of law involved
in this case, than we have time to follow
Those who wish to perHse the decision in
full will find it in the 4th vol. of Comstock's
Reports of cases decided before the Court Of
Appeals, in December 1850.
Judge Pratt concurred in the decision as
to there having been no legal first marriage
between Schenck and Sarah. His opinion
furthermore, was, that, for many purposes
marriage may be proved by evidence that
the parties oohabited together as man and
wife, held themselves out to the world as
such, and were so received among friends
In the absence Of any conflicting circumstan
ces, such proof is often enough. The law
presumes against the commission Of acts in
volving moral turFitude, such as life Of
Illicit cohabitation would involve.
But whilst cOhabitation and verbal ac-
knowlsdgment during it, as to being man
and wife, are evidence tending to show pre-
vious marriage, they do not constitute mat
rimopy, nor afford conclusive evidence of the
fact Instances Of illicit union occur in sll
communities, and the disgrace attending
them, presents an inducement to endeavor tC
escape the odium, by assuming that the re-
lstion is sanctioned by marriage. Hence
while upon questions of pedigree this circum
stantial evidence has been held competent
in other cases it has been entirely rejected
Thus, on trials for bigamy, and civil actiOni
for criminal conversation, it has always beer
excluded-the courts holding in such caseH
that the marriage must be proved by direc
evidence.
Upon the trial upon an indictment for big
amy, the presumption Of the law against th'
commission of the crime, stands opposed q
the presumption against Illicit intercourse
Between these presumptioDs courts will no
decide. On the trial of a civil action fo
Grim con the same principle is applied.
Judge Pratt went az considerable lengtl
into the reasons for the exclusion of tn
before mentioned kind of testimony, in ao
cusati0ns Of bigany. Those interested vii
find his opinions on page 238-4S of Ccmstock
vol
Judge Gardner, however, with Chief Jus
tice Bronson and Judge Jewett, f)rmiDg
minority Of the Court, held opinions 10
contrary effect, as follows That, as in thi
claim of Mrs Clayton, as legitimate dauphte
of her mother, she would have the unques
toned right to prove her mothers marriag
with declarations, c0hsbitation with he
father, the reputation prevailing among tbei
friends, SC, there is no reason why the clair
should not be resisted by evidence Of a simi
lar character.
Judge Gardiner considers the instrumen
OF BcpdlablOn AL upvA taAh puiEl Al bObtbu
the first marriage That (he 'says,) recite
unhappy differences between Schenck, th
husband, and Sarah Maria his loife, and cor
tains stipulation that the aoife may liv
separate from her husband, &c. Judge G
ADDS: If an instrument of this kind, contain
ing the distinct and unqualified admission {
both parties that they were at the time hu'
band and wife, and the sole object Of who
l. L.. Il sofi3
one, is not evidence from which marriage
fact can be inferred, no such evidence shoi
of the proof of witnesses present at the cert
mony can be given
Judge Gardeners opinion and decision al
also very interesting They may be four
following the opinions Of the other membe
Of the court
Judge G. with Chief justice Bronson al
Judge Jewett, were of opinion, that the fir
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