said defendants may answer the allegations thereof; that the Court would decree the nullity of the said marriage, and make such further decree in the premises, as the act on which it is founded (1 Rev. Code, ch. 101. p. 195. 6. 13.) requires, as may be adapted to the nature of the case, and as a regard for the laws and public morals may demand. 66 66 The defendants filed a plea in bar of the said information;-in which, not admitting the truth of any of the facts stated therein, they say, that, by the 8th article of the bill of rights, it is declared, "that in all capital or criminal prosecutions, a man hath a right "to demand the cause and nature of his accusation, to be confront"ed with the accusers and witnesses, to call for evidence in his "favour, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; "nor can be be compelled to give evidence against himself; that no "man be deprived of his liberty, except by the law of the land, or "the judgment of his peers:"-that, by an act passed on the 5th December 1785, (1 Rev. Code, ch. 15. p. 18.) the legislature expressed its meaning of this article of the bill of rights by enacting that no freeman shall be taken or imprisoned, or be dis-scised of ❝his freehold, or liberties, or free customs, or he outlawed, or ex"iled, or any otherwise destroyed, nor shall the Commonwealth pass upon him, nor condemn him, but by the lawful judgment of "his peers, or by the laws of the land:" that they are advised that an act which is contrary to, or inconsistent with, the said bill of rights, or any part of it, is unconstitutional, void, and of none effect; that the said information is to all intents and purposes a criminal prosecution, founded upon the act referred to therein; and that the said act, so far as it provides that any persons who shall contract marriage contrary thereto, shall be separated by the definitive sentence of the Court of Chancery, and that the attorney general shall exhibit a bill against them, which they shall be compelled to answer upon oath, and upon such bill, answer, and the depositions of witnesses, the said Court may proceed to give judgment, and declare the nullity of the marriage, and, moreover, may punish the parties by fine, and if it sees cause, may compel them to give bond with sufficient security, that they will not cohabit thereafter, provided that the said fine shall be assessed by a jury,-is a penal statute, authorising a criminal prosecution, in the mode therein prescribed, is inconsistent with the said article of the bill of rights, and is therefore unconstitutional, void, and of none effect; and, therefore, does not vest the said Court of Chancery with any lawful jurisdiction to hear and determine the matters in the said information contained: and, therefore, they demand judgment whether they ought to give any further or other answer to the same. The cause coming on to be heard in the said Court, upon the said plea, which it was agreed might be considered as a demurrer, the court pronounced a decree, in which, declaring, in substance, that, being of opinion that, if this be a criminal prosecution, that Court should not entertain it; that the act of the parties on which it was founded being a crime, and a prosecution for it, consequently, a criminal prosecution, "it was not competent to the legislature to "confer jurisdiction thereof upon that Court, for the reasons as"signed in the demurrer; and therefore considering so much of the "act in question as contrary to the bill of rights, and, for that rea"son, void," decreed that the information should be dismissed. From that decree an appeal was allowed, on the motion of the attorney general, to this Court. While this Court is not prepared to assert the broad proposition that the legislature has no power, under any circumstance, to confer on the Court of Chancery, cognizance of a criminal prosecution; all the constitutional provisions in favour of jury trial, viva voce examination of witnesses, and exemption from self-accusation, being observed; it has no hesitation in saying that the proceeding before us is a criminal prosecution. The information charges, that a crime has been committed, and prays the Court to decree the nullity of the marriage; which presupposes, and can only be founded upon, the previous judgment of the Court, that the parties are guilty of the crime imputed to them. It not only prays that the Court should decide whether they be guilty or not, but requires it to inflict the consequent punishment upon them. The act of the parties now in question, although it offends highly against the laws and public morals of the country, inflicts no private injury upon any individual. It is therefore to be considered entirely as a public wrong, in contradistinction to one involving, also, a civil injury; and it follows that a prosecution therefor, is, emphatically, a public or criminal prosecution, and is not, in any sense, a civil proceeding. This prosecution does not lose that character from the preventive duty assigned to the Court, of restraining the future intercourse of the parties. Although that power properly belongs to a civil and a Chancery Court, and, standing singly, might denote a civil and not a criminal proceeding, it cannot have that effect in this case, in which it is not a distinct and independent provision, but is merely an incident to the main object of the prosecution. Nor can this inference result from depriving the defendants, by adopting the modes of proceeding in a Court of Equity, of the right of jury trial, confrontation with accusers and witnesses, and exemption from self-accusation, which are high privileges secured to every citizen by the bill of rights. They rather show an attempt to invade and elude those important provisions, by throwing an indictment into the form of a bill in equity. These great rights, so essential to the security of every citizen, would rest upon a slender basis indeed, could they be annulled by changing either the forum of controversy or the forms of proceeding. On these grounds, the Court is clearly and unanimously of opinion, that the information in question is essentially, a criminal prosecution; and, as this Court has no jurisdiction in criminal cases, the appeal must be dismissed. This disposition of the case will, perhaps, make it improper for the Court to pass any opinion upon its merits, further than is inferable from what is already said, nor is it probably regular to say any thing in relation to a crime, which is understood to be a growing one in this country, and strikes deeply at the happiness and well-being of society. It rests with the legislature, in their wisdom, to supply further and other provisions, for the purpose of preventing and suppressing it in future. |