Jewell's Lessee v. Jewell
42 U.S. 219

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U.S. Supreme Court

Jewell's Lessee v. Jewell, 42 U.S. 1 How. 219 219 (1843)

Jewell's Lessee v. Jewell

42 U.S. (1 How.) 219

Syllabus

The declarations of a deceased member of a family that the parents of it never were married are admissible in evidence whether his connection with that family was by blood or marriage.

The acts and declarations of the parties being given in evidence on both sides on the question of marriage, an advertisement announcing their separation and appearing in the principal commercial newspaper of the place of their residence immediately after their separation, is part of the res gestae, and admissible in evidence. Whether or not it was inserted by the party, and if it was, what were his motives, are questions of fact for the jury.

If a written contract between the parties be offered in evidence, the purport of which is to show that the parties lived together on another basis than marriage, and the opposite party either denies the authenticity of the paper or alleges that it was obtained by fraud, the question whether there was a marriage or not is still open to the jury upon the whole of the evidence.

Upon the two questions, lst, whether,

"if before any sexual connection between the parties, they, in the presence of her family and friends, agreed to marry, and did afterwards live together as man and wife,"

it was a legal marriage and the tie indissoluble even by mutual consent, and, 2d, whether,

"if the contract be made per verba de praesenti and remains without cohabitation, or if made per verba de futuro and be followed by consummation,"

it amounts to a valid marriage, which the parties (being competent as to age and consent) cannot dissolve, and is as equally binding as if made in facie ecclesiae the Court can express no opinion, being equally divided.

The facts, which were not denied, were few, nearly all the evidence being of a contradictory character. All this evidence was brought to the notice of this Court in the argument in consequence of the refusal of the court below to grant the third instruction prayed for by the plaintiffs, which instruction will be stated hereafter.

The admitted facts were these:

About the year 1794 or 1795, Benjamin Jewell became acquainted with Sophie Prevost, a young girl, who, with her family, had shortly before emigrated from the West Indies to Savannah. They lived together and continued to do so for many years. They resided but a short time in Savannah, then removed to Barnwell, in South Carolina, and finally to Charleston. During this time,

Page 42 U. S. 220

many children were born, who were reared in the house where their parents lived, the mother passing by the name of Mrs. Jewell. In the year 1810, they separated by mutual consent, after executing the following paper.

"Articles of agreement between Benjamin Jewell and Sophie Prevost, and receipt of Sophie Prevost, dated 1810 and 1811."

"Articles of agreement entered into this 4 December, 1810; Benjamin Jewell on the one part, and Sophie Prevost on the other."

"Whereas, the said Benjamin Jewell and Sophie Prevost have cohabited for several years past, and have had eight children, but are now willing and desirous to separate and live asunder, on certain terms and conditions hereinafter specified, now this instrument of writing witnesseth that the said B. Jewell and Sophie Prevost do agree henceforward to live separate and asunder."

"The said B. Jewell, on his part, consents and engages that the said Sophie Prevost shall have under her sole and absolute control, and free from all restraint or control by the said B. Jewell, the following children, viz.: Juliana, Daniel, and Washington, each child having its clothing. The said Sophie Prevost, on her part, engages and consents, that the said B. Jewell shall have under his sole and absolute control, and free from all restraint or control by the said Sophie Prevost, the following children, viz., Benjamin, Joseph, Hannah, Hetty, and Delia, with their clothing. The said Sophie is to pay all the expenses of clothing, education, and maintenance of the children above allotted to her, and the said Benjamin Jewell is to pay all the expenses of clothing, education, and maintenance of the children allotted to him; and moreover engages to pay for one year's schooling, viz., the sum of $40 for the child Juliana, in order to complete her schooling."

"The said Sophie engages not to disturb the said Benjamin, in respect to the management of the children allotted to him, nor in any manner control or interfere with them. And the said Benjamin engages in like manner in respect to those children assigned to the said Sophie."

"And in consideration of this separation and consent to live asunder, the said Benjamin engages to pay to the said Sophie Prevost the sum of $3,000, and to give her a bill of sale of the fellow Jesse, the girl Harriet, the wench Nancy, with her three

Page 42 U. S. 221

children, Charlotte, Mary, and Charles; also, the following articles of furniture (here follows a list of furniture), and in consideration of the above, on the part of said Benjamin Jewell, the said Sophie Prevost doth hereby release and discharge the said Benjamin Jewell from all claims and demands whatsoever. In witness whereof, the parties to these presents have set their hands, this 4 December, 1810."

"BENJAMIN JEWELL"

"W. L. SMITH"

"SOPHIE PREVOST"

"(Note. The signature of W. L. Smith in the original paper is written with pencil.)"

It was admitted that Sophie Prevost gave sundry receipts for the cash and furniture mentioned in the above agreement.

It was further admitted that in June, 1813, Benjamin Jewell was married in Richmond, Virginia, to Sarah Isaacs, by the regular minister of the Hebrew congregation, according to the rites and ceremonies observed by the Jews, soon after which they removed to the State of Louisiana.

In 1818, Sophie Prevost married a man by the name of Storne, continuing to reside in Charleston.

In 1828, Benjamin Jewell died intestate in Louisiana, and his widow and children living there brought an ejectment against his children in Charleston to recover a house and lot, of which the latter were in possession.

The whole question turned upon the validity of the first marriage, there being no controversy about the validity of the second in case Jewell, at the time of contracting the second marriage, had not a wife living.

To support the first marriage it was given in evidence by Sophie Prevost (who had released her interest in the property in dispute) and by others that at the time of the marriage she and her family had recently arrived from the West Indies; that she was very young; that they brought with them some negroes, of whom Jewell received three as her portion; that in consequence of her being a Catholic and Jewell a Jew, the ceremony of marriage between them was performed by a magistrate named White, in the presence of her family and other persons; that she was entirely ignorant of the English language; that she lived with Jewell as his wife in his house and under his name; that they removed to Barnwell District in South Carolina, where also she

Page 42 U. S. 222

associated with the neighborhood as his wife; that they then removed to Charleston, where Jewell kept a clothing store; that she attended to the concerns of the shop and family as Mrs. Jewell; that the children were circumcised according to the Jewish laws, and that none but legitimate children are so; that she was recognized in society as his wife; that in 1806 she executed a release of dower in some property which Jewell had mortgaged, and that such release was in the form which the law prescribed for wives; that according to the general opinion among Hebrews, a marriage, in the scriptural sense, between a Christian and a Jewess is not legal, but that the Jewish law considers a connection between a Hebrew man and a Christian woman as concubinage; that it is the duty of a Jew to obey the laws of the country in which he lives; that if a divorce be obtained according to their law, by mutual consent, it is not considered unlawful to marry again; that the man writes a paper to the effect that the woman is at liberty to marry again, and the act on the part of the woman is her receiving it and assenting to it.

The evidence offered by the plaintiffs in the suit below to rebut the idea that a marriage had ever taken place between Jewell and Sophie Prevost was in the first place the following paper:

"Savannah, 10 March, 1796"

"Received of Benjamin Jewell the sum of five hundred dollars in full for the cause of action which I brought against him on a promise of marriage, which sum of five hundred dollars I acknowledge to be in full compensation, and from which I do release and exonerate the said Benjamin Jewell of all actions, demands, or engagements whatsoever from the beginning of the world to the present day. [The remaining part of the paper is characterized by the court as gross and indecent, and the Reporter does not think proper to insert it. Its purport was to recognize a continuance of the connection on another basis than marriage.]"

"SOPHIE PROVOST"

"Witness,"

"CHARLES HARRIS, GEO. J. HULL"

It was also given in evidence by the plaintiffs that the above paper was recorded in the clerk's office of the Superior Court for Chatham County (the county in which Savannah is situated) in

Page 42 U. S. 223

the month of August after its date, on the oath of Mr. Harris one of the subscribing witnesses. The handwriting of Mr. Harris who was a distinguished counselor at law in Savannah, as well as that of Hull, the other subscribing witness, who was a deputy marshal of Georgia, was proved by a judge and by one of the members of the Savannah bar. It was also given in evidence that Charles Harris was of the highest standing and character, was a distinguished man in the state, and understood and spoke French fluently. No other part of the paper was in his handwriting except the words "witness, Charles Harris."

It was also given in evidence by the plaintiffs that upon an examination of the minutes of the courts, where the record of magistrates still remains, the name of White, who was said to have performed the marriage ceremony, did not appear as a justice of the peace in Savannah in the year 1796 or at any time previous.

It was also given in evidence by the plaintiffs that Jewell and Sophie Prevost were not considered to be married by one Borbot, the clerk of Jewell, or by the persons with whom he associated.

It was further given in evidence on behalf of the plaintiffs by the Rev. Mr. Poznanski, the officiating minister of the Hebrew congregation in Charleston, that if a Jew has a child by a person who is not a Jewess, the rite of circumcision may be performed, and that it is not necessary (for circumcision) that the child should be legitimate.

To rebut all this evidence, the defendants gave testimony by Sophie Prevost or Jewell that she never signed the paper purporting to be a release of all damages. &c., or any paper of the kind, and that she never was acquainted with either Harris or Hull, and by R. W. Pooler, the clerk of the court, that aldermen of the Common Council of Savannah were ex officio justices of the peace, for all purposes, within the Town and hamlets of Savannah, but that he did not know whether or not White was an alderman in the years 1794, 1795, or 1796.

There were two bills of exceptions taken in the court below, the first of which related to the admissibility of certain evidence which the court rejected and the second to the instructions prayed to be given to the jury and refused by the court, as also to the instructions actually given.

Page 42 U. S. 224

The first bill of exceptions is as follows, viz.:

"The plaintiff, to sustain his action, proved the marriage of Benjamin Jewell on 30 June, 1813, with Sarah Isaacs, one of the lessors, the seizin of Benjamin Jewell, his death, and that the other lessors of the plaintiff are the issue of that marriage."

"The defendants, to defeat the plaintiff's action and prove themselves the heirs at law of Benjamin Jewell, examined Sophie Storne, who testified to a prior marriage between her and Benjamin Jewell, and that he held her out as his lawful wife, and that eight children were born during the time they lived together, and offered in evidence to sustain their defense the testimony on the part of the defendants contained in the schedule annexed to this bill of exceptions. To rebut which evidence, the plaintiff offered the deeds and papers annexed to this bill of exceptions, signed by Sophie Storne by the name of Sophie Prevost, and gave evidence that the said Benjamin and Sophie separated in December, 1810, and then offered in evidence the declarations of one Simons, the deceased husband of one of the defendants, that his wife's mother was not married to her father, which evidence the court overruled, and the plaintiff excepted thereto. And the plaintiff further offered in evidence a file of the Charleston Courier for the year 1811, and showed that the manuscripts or originals from which the paper of that day was published are lost or mislaid, and that the Charleston Courier was then the leading commercial paper in Charleston, where the parties lived, and offered to read from the file the following notice, as published on 22 January, 1811, and for three successive weeks from that time, viz.:"

"NOTICE"

" The subscriber forbids all persons from giving credit to Mrs. Sophie Prevost on his account, as he will pay no debts whatever she may contract."

" [Signed] BENJAMIN JEWELL"

"But the court refused to allow the evidence to be read, to which ruling of the court the plaintiff excepted."

Second bill of exceptions:

"And at the trial of the said cause, after the parties had produced the evidence in the schedule hereto

Page 42 U. S. 225

annexed, the plaintiffs desired the said justices to instruct the jury, as follows: "

"1. That if Sophie Prevost and Benjamin Jewell agreed to live in concubinage, and, under that agreement, cohabited together, the connection is not matrimony, although they passed themselves off to other persons as man and wife."

"2. That if Benjamin Jewell and Sophie Prevost asserted, contrary to the fact, that they were married when in reality they had agreed to cohabit without marriage, such assertion will not change the nature of their connection so as to legitimate the children that were the produce of that union."

"3. That if the jury does not believe that Benjamin Jewell and Sophie Prevost were married by a magistrate in Savannah in the year 1796 or before that time, then there is no evidence of a marriage before them on which they can find the defendants to be the legitimate heirs of Benjamin Jewell."

"4. That if the said Benjamin and Sophie were living in concubinage in 1796 under the agreement produced in evidence and continued to cohabit together afterwards, such cohabitation will not amount to marriage, notwithstanding their representations to third persons, unless there was a distinct agreement between them to rescind the former agreement and to stand to each other thenceforward in the relation of husband and wife. And that if such new agreement be relied on, it ought to be established by satisfactory proof, and cannot be inferred from common reputation."

"5. That if there was a promise of marriage, followed by sexual intercourse between Benjamin Jewell and Sophie Prevost, and she afterwards sued him for breach of marriage promise or received a sum of money in satisfaction of the injury done her by refusing to marry her, the promise is thereby released, and the promise and subsequent intercourse do not constitute the parties man and wife."

"6. That a promise to marry at a future time, followed by cohabitation, does not constitute marriage, though the promise be accepted at the time when it was made."

"And the defendants prayed the justices to instruct the jury: "

"1. That if they believe that before any sexual connection between Miss Prevost and Benjamin Jewell, Mr. Jewell and Miss

Page 42 U. S. 226

Prevost, in the presence of her family and his friends, agreed to marry and did afterwards live together as man and wife, the tie was indissoluble even by mutual consent."

"2. That if the jury believe a marriage was celebrated in Savannah by a magistrate, the moment the celebration was over, the contract was perfect and indissoluble."

"3. That even if the paper signed in Savannah in March, 1796, was signed by Sophie Prevost, and was so signed when she was unmarried, still it was not an indissoluble contract, but one which the parties were at full liberty to cancel and retract. And that the constant admission by both parties that they were man and wife, their reception in society, his calling her to renounce her dower, are evidence to authorize the jury to draw the conclusion that Mr. Jewell and Sophie Prevost had concluded and agreed to become and live together as lawful husband and wife prior to 1810, and if so the separation does not affect the right of the children of that marriage; they are legitimate."

"And the said justices refused the third instruction prayed by the plaintiffs. And as to the sixth instruction prayed by the plaintiffs, the said justices instructed the jury that"

" If the contract be made per verba de praesenti and remains without cohabitation, or if made per verba de futuro and be followed by consummation, it amounts to a valid marriage, and which the parties (being competent as to age and consent) cannot dissolve, and it is equally binding as if made in facie ecclesiae."

"2 Kent's Com. 86, 3d edit. To which refusal and instruction the plaintiffs except. And the said justices gave the first instruction prayed by the defendants, to which the plaintiffs also except. "

Page 42 U. S. 228

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