
    
      Olley Mattison v. Mary Mattison.
    
    The powers of the Ecclesiastical Courts have never been conferred upon, nor have they ever been exercised by, the Court of Equity in this State; by the terms of the Statute, its jurisdiction is confined to cases of Chancery cognisance in Great Britain.
    The Legislature of South Carolina have delegated to no Court the authority to declare a marriage null and void, and they have never themselves exercised the authority.
    The distinction between the authority to declare a marriage null and void, and to grant a divorce, has no sanction either in reason or authority.
    On appeal from the decree of Dunkhn, Ch. at Anderson, June, 1846, and by the Appeal Court referred to the Court of Errors, at Columbia, December, 1847.
    Dunkin, Ch. This was a suit of nullity of marriage. It is described as being instituted by the complainant against Mary Clements, falsely calling herself Mary Mattison, to have a marriage, in part solemnized between them, declared to be null and void in law.
    The allegation is that the complainant, being addicted to habits of intemperance, was .married to the defendant, in the Spring of 1840, while in a fit of delirium tremens. This bill was filed on the 11th of November, 1845, and the prayer is that the said marriage maybe “decreed to be null, void, and of no effect whatever, and the complainant fully absolved from all the legal effects and consequences of the said marriage ceremony.”
    At the opening of the case, the Court expressed a strong impression that it had not jurisdiction to entertain the proceeding, or grant the relief sought. Subsequent examination and reflection have served only to confirm this impression.
    It is admitted that, in England, cases of this character belong exclusively to the Ecclesiastical Courts. Collaterally, it may be the duty of a Court of Chancery, or of Common Law, to inquire into, and determine, the validity or invalidity of a marriage, as of any other contract. But this is when the question arises in the administration of their ordinary jurisdiction, Such was the case of Foster vs. Means, ■ Spears’ Eq. 574.
    
      Rhame vs. Rhame, McCord, 197, was a bill for alimony. Mr. Justice Nott, conceding that such cases belong to the Ecclesiastical Courts, regards alimony as an exception, both from the settled practice of the Court in South Carolina, and from necessity. But it was in that case ruled that “the jurisdiction of the Court must be limited to the allowing of alimony,” and to such orders as are necessarily incident to the effectual execution of such a decree.
    This Court has no more authority to entertain a suit fpr nullity of marriage than to grant a divorce, or decree a restitution of conjugal rights. By the terms of the statute, its jurisdiction is confined to cases of Chancery cognizance in Great Britain. In some of the States, as in New York, the Court of Chancery has, by statute, the sole jurisdiction over the marriage contract in certain specified cases, and that may possibly warrant the inference that the Legislature has thereby recognised this Court as the proper organ for such a jurisdiction. But so important have the Legislature of South Carolina always deemed this authority, and so delicate the exercise of it, that they have never delegated to any judicial tribunal, nor have they exercised, themselves, the right of interference with the matrimonial contract. So far as the rights of property were involved — so far as protection to the person was necessary, the powers of the Courts are ample, and require no enlargement; but as to the inviolability of the contract itself, the silence of the Legislature is the best evidence of the sentiment of the public. “ Nolumus leges mutari.”
    
    It is ordered and decreed that the bill be dismissed.
    
      Grounds of Appeal.
    
    The complainant moved the Court of Appeals in Chancery to reverse the decision of the Chancellor in this suit, on the following grounds:
    1st. Because, there being no Ecclesiastical Courts established in South Carolina, the relief prayed for in complainant’s bill belongs, from necessity, to the Chancery jurisdiction.
    2d. Because it is the peculiar province of the Court of Chancery in South Carolina to grant relief against fraud, and to set aside agreements and contracts procured by fraud or imposition, or which were, in other respects, null and void.
    3d. Because the alleged marriage of complainant, being entered into whilst in a state of insanity, was a nullity, and the Court of Chancery has the right to restrain the defendant from assuming the complainant’s name, passing as his wife, and harrassing him with groundless actions and suits for alimony, maintenance, &c.
    4th. Because the decree was in other respects contrary to law and equity.
    Waddy Thompson, for the motion.
    
    We claim the jurisdiction of this court on various grounds. In England, it has concurrent jurisdiction with the Ecclesiastical Court. We have no Ecclesiastical Court, and if this court has no jurisdiction none other has. This court protects lunatics and idiots. It has quia timet power. It will adjudicate to avoid multiplicity oí actions, to perpetuate testimony, and to award maintenance or alimony. Chancery Courts, in England, exercised this jurisdiction anterior to the existence of Spiritual Courts. The court is not asked to set aside a contract of marriage, but to decide that no contract did ever exist. In this case there was the form, but not the vitality of a contract. Foster v. Means, 1 Spears’ Eq. 571. Without a suffL cient share of reason, the contract is not valid. T-- v. Murray, 1 Bland. Ch. 479. If the complainant had sold land in the state he was, the court would have pronounced the contract void. Marriage, in our State, is a civil contract, and one of the most importance; should it be without a remedy in our courts? We seek to have this declared no contract, but one of fraud. In Im,er v. Width, 3 Johns. C. C. 69, a minor’s marriage was annulled. Hinlap v. Grocher, 1 Hopk. C. C. 478, is a leading case in which the whole doctrine is reviewed — a marriage in this case was declared void, consent having been obtained by duress: — In 1 Hopk. C, C. 557, it was said the court could not dissolve marriage for physical impotence, but for fraud in the contract. Perry v. Perry, 2 Page, 506. The marriage is not dissolved, but no marriage ever was made. Where there is a right, some tribunal must enforce it. This is a' civil contract; we seek not to have a marriage annulled for incompetency or disability. In Wightman v. Wightman, 4 Johns. C. C. 343, lunatics and idiots are under the protection of the Civil Courts, where there is no Ecclesiastical Court. 2 Iredell, 470, and 3 Iredell, 98. The marriage of a lunatic is void, Scott v. Chappel, 5 Page, 43. — In this case, fraud annulled the marriage. All civil contracts are void for fraud. In States where divorces are granted, these cases do not come within the statutes granting divorces, but are based on the ancient laws of English Chancery jurisdiction in similar cases. This court is the guardian of lunatics, minors, &c. The rights of many arc involved in this question; are they •to be without remedy ? Necessaries are sued for by the wife, &c. '&c. &c.; and this court should prevent the multiplicity of suits. The complainant 'wishes the testimony to be perpetuated and under the quia timet power of the court.
    Whitner, contra.
    
    What is to be the judgment of the court in a case of this kind ? What its form, and how carried into effect? This .is a contract by parol. There is nothing tangible to act upon. The parties are not before the court. Other rights have already attached; creditors, &c. are to be satisfied. They have their rights. They are not here, and cannot be reached by any judgment of the court in this case. No point is made in the bill to perpetuate .testimony ; it is simply -'to dissolve, or have declared null, this marriage. The bill alleges that a marriage has been entered into, and prays that it be vacated; and still the counsel asks that the marriage should be declared null. This is a distinction without a difference. If this court is to enquire into marriage contracts, litigation will be .endless. There has been no fraud practiced in this case.
    Perry, for the motion.
    
    In our country, a marriage contract is a civil contract, and if fraudulently entered into, is a nullity ; and why should not this court entertain jurisdiction and declare it a nullity ? Does not policy require it ? This will prevent a multiplicity of actions, preserve the testimony, <fcc. (Mr. Perry here read the argument of counsellor Sampson, in a case in 1 Hopkins, 487, and adopted it as his own in the present case; and in reference to the practice in our own courts in cases of alimony, cited) Rhame vs. Rhame, M'Cord’s Ch. 197, and Printer vs. Printer, 4 Dessau. 53. In 1 Rich. Eq. 127, the court assumed jurisdiction,- because there was no jurisdiction elsewhere. In 2 Eq. Rep. 204, the court assumed jurisdiction from analogy to the practice in England, in cases of divorce. In Wightman vs. Wight-man, 4 Johs. C. C. it is said the tiullily of the marriage of a lunatic should be declared by this court. In England, they have Eclesiastical Courts to notice these matters, but we have no such courts, therefore this court has jurisdiction; 3 Iredell, 98 ; (North Carolina ;) vide Maddox Chancery, 385, note C. as to there being no Ecclesiastical Court here. This bill has been answered, and the defendant has put himself in court, and cannot complain of want of jurisdiction. As to creating litigation, it is an objection incident to all cases of fraud.
   Dunkin, Ch.

delivered the opinion of the Court.

The zeal with which this appeal has been urged, and the importance of the question involved, may render it proper to elucidate, by some further observations, the principles propounded by the decree.

A Court of Chancery was first established in South Carolina in 1721. By the tenth section of the Act it is provided “that the said Court shall proceed, adjudge and determine in all causes brought into the said Court, as near as may be, according to the known laws, customs, statutes and usages of the Kingdom of Great Britain, and also, as near as may be, according to the known and established rules of his Majesty’s High Court of Chancery in South Britain.” ’ By the first section of the Act of 1791, it is declared that the laws, then of force, for establishing and regulating the Court of Chancery within this State, shall be and continue of force in this State, until altered or repealed by the legislature thereof, subject, nevertheless, to such alterations, amendments and restrictions as are thereinafter directed.

It would seem, then, only necessary to inquire whether, by the known usages and practice of the Court of Chancery in England, or by force of any special statute of South Carolina, the Court of Equity has jurisdiction of this cause. In England it is well settled that the cognizance of matrimonial causes belongs exclusively to the Ecclesiastical Courts. For a short time, during the Protectorate of Cromwell, when the spiritual courts were closed and the civil law was silenced, the Court of Chancery took cognizance of cases of alimony, but on the re-establishment of the Courts Christian, after the restoration, a demurrer to a bill of alimony was sustained.— Such had been the usage of Westminster Hall in 1721. No Court of Chancery in England, no judge of a Chancery Court, has ever, at any time, in the most disturbed condition of civil society, undertaken to pronounce a marriage null and void, or to take cognizance of such matter. Nearly a quarter of a century ago the Supreme Court of this State, in Rhame v. Rhame, advert to the practice of the English Court of Chancery, as well as to that of South Carolina, in relation to matrimonial causes, and it is there declared that the case of alimony has always been regarded as an exception, and that “the jurisdiction of the Court must be limited to the allowing of alimony.” This would seem to be the natural end of the investigation, as well as a satisfactory answer to the argument from necessity. If, twenty years since, it was judicially announced that the Court of Equity has no cognizance of matrimonial causes beyond the allowance of alimony, and a necessity existed for more extensive authority, legislative interference would have supplied the defect, and, iollowing the example of other States, would have vested the judicial tribunals of the country with this new and perilous power. The silence of the Legislature is conclusive — -regarding the sacred nature of the marriage contract as a matter of public interest, they will neither interfere with it themselves, nor delegate to othei s the power to dissolve it. The distinction between the authority to declare a marriage null and void, or to grant a divorce, has no sanction either in reason or authority. The same general principle which would authorize Courts of Equity to declare a contract void for want of consent, would require them to interfere in cases of fraud or misrepresentation, and declare the contract no longer obligatory on one party when the other had refused to perform the duties imposed by it. But no Court, either in England or in the United States, has ever declared a marriage null and void in its inception which did not, at the same time, assume, as a necessary incident, the authority to divorce the parties, in England a mensa et thoro, in our sister States a vinculo. Wightman v. Wightman, 4 J. C. R. 343, is the only decision brought to the notice of the Court in which is affirmed the inherent authority of Chancery to declare a marriage null and void in a suit between the parties themselves. Ferlat v. Gojon, 1 Hop. R. C. R. 487, rests on Wightman v. Wightman. Able decisions from North Carolina were cited, but in those cases, the jurisdiction of the Court is expressly based on special Acts of the Legislature. In Wightman v. Wightman, the language is plain and unequivocal. “ All matrimonial, and other causes of ecclesiastical cognizance,” says the Chancellor, “ belonged originally to the temporal courts; and when the spiritual courts cease, the cognizance of such causes would seem, as of course, to revert back to the lay tribunals.” After adverting to the statutes of New York, the Chancellor proceeds, “Divorces a vinculo, says Lord Coke, are causa metus, causa impotentice, causa ajinitatis, causa consanguinitatis, &c. These cases, and that of lunacy, are not within the statute giving to this Court jurisdiction concerning divorces.” He then proceeds to affirm, and to shew, in his own words, that the Court of Equity “iscompetent, not merely collaterally, but by a suit instituted directly, and for the sole purpose, to pronounce a divorce in such cases.” 'This is distinct and intelligible, and the process of reasoning (assuming the truth of the premises) sufficiently strong in reference to the judicial system of New York. Chancellor Kent •does not place the jurisdiction of the Court on its ordinary authority in reference to ordinary contracts, but he boldly assumes the position that the Court of Chancery in New York has jurisdiction, independently of the statute, “ of all matrimonial and other causes of ecclesiastical cognizance,” and that it may grant a divorce for any of the causes enumerated by Lord Coke. It is hardly necessary to say that the reasoning is inapplicable to South Carolina. The powers of the Ecclesiastical Courts have never been conferred upon, have never been exercised by, the Court of Equity in this State. ■Our path is in a more humble and limited sphere. Whether wisely or unwisely, the Legislature has thought proper to withhold these powers. They have delegated to no Court the authority to declare a marriage null and void, and they have never themselves exercised the authority. Cases of individual hardship have occurred, and wdl occur ; but the observation of a different policy in other States, as well as the experience of our own, has served only to confirm the conviction that it is better to tolerate occasional suffering than to jeopardize the peace of society, and open a wide door to fraud, imposition and other immorality.

The motion is dismissed.

Johnston, Ch., Caldwell, Ch., and Richardson, J., ■O’Neall, J., Evans, J., Wardlaw, J., Withers, J. and Frost, J. concurred.

Motion dismissed.  