William Henry Linow Barnes.

Sarah Althea Sharon, plaintiff, vs. William Sharon, defendant. Argument of W. H. L. Barnes for the defendant online

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Online LibraryWilliam Henry Linow BarnesSarah Althea Sharon, plaintiff, vs. William Sharon, defendant. Argument of W. H. L. Barnes for the defendant → online text (page 1 of 35)
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979.461 T2791



FORM 3427 5000 lO-


3 1223 90040 1713

Digitized by tine Internet Arciiive

in 2010 witii funding from

San Francisco Public Library

%n the Supi^rior Court


City and County of San Francisco

State of California.

Sarah Althea Sharon,



.WiLLiANi Sharon,



— ov


For the Defcin^ant.




Official Reporters.

Harry, Baird & Co., Printers, San Francisco.



Mr. Barnes — May it i}Ieafie the Court:

In tile course of this protracted argument, the learned coun-
sel for the plaintiff has extensively read and commented upon
the law of marriage in this country, in England and Scotland,
and indeed of every other nation where the rite is celebrated
in any form or fashion whatever.

I shall not attempt anj' further review of the " myriad maze
of endless precedents" to which your attention has been so
laboriously directed. While many of them furnish little assist-
ance in determining the state of the law of marriage in Cali-
fornia, yet all are of interest ; and I feel bound to say of the
gentleman to whom the preparation of the law argument on
the part of the plaintiff has been entrusted, that his work has
served to illustrate the patient industry with which he has
labored, and the thorough research he has given to the general
subject. His zeal has certainly resulted in a valuable mono-
graph upon marital relations ; but while admitting this, I feel
bound also, to call attention to the fact that neither he nor any
of the counsel on the other side has brought to the extracrdi-
nary and anomalous features of this case the slightest appli-
cation of the principles enunciated in so many decisions. The
omission is as obvious as the motive that prompted it ; and I
shall not further advert to it, except to state my conviction
that the younger Mr. Tyler's industry is at least equalled by
his prudence.

The legal discussion, protracted as it has been, ha« served,
however, to define clearly our own position and that of our
opponents. Briefly, then, and without repetition of citations,
I beg leave to state our respective views as I understand
them, and to lay before the Court a full and plain declaration
of the principles of law upon which I propose to argue the
cause, and which I shall attempt to apply to its remarkable

We agree that marriage is a personal relation arising out of

[ 4 ]

a civil contract, the essential of which, as of every other con-
tract, is the consent of the parties concerned.

We agree that in the case of solemnization following such
consent, and where compliance has been made with the care-
fully prescribed provisions of Article II of the Civil Code re-
specting authentication, the parties thus complying are law-
fully married, though they part at the altar where they have
publicly exchanged their vows, and never share or claim to
share the rights, or perform the duties, or discharge the obli-
gations, of the holy estate of matrimony.

So far we agree ; but at this point our ways finally diverge,
to meet no more on any common ground. As I under-
stand the plaintiff's counsel, they claim that what is true of
solemnized marriages is also true where the consent of the
parties to marry is evidenced only by verba cle praesenii or
futuro, whether such mutual consent be merely oral or by
written and signed agreement ; that where consent to marriage
is established under the same rules of evidence as facts in other
cases, that is, by oral testimony or written agreement, that
agreement is sufficient to establish the marital relation, and the
man and the woman thus consenting ai'e husband and wife ;
that they have made a contract indissoluble by the will of
either or of both, unless they shall be released from its obliga-
tions and duties by the decree of .some Court of competent
jurisdiction or by the higher jurisdiction of death ; that cohabi-
tation, marital intercourse, and a common social and domestic
family life, the ordinary and ostensible asssociation of people
honorably united in wedlock, are non-essentials ; that the par-
ties may go their several ways, live apart, deny the existence
of the marital relation, hold themselves out as unmarried per-
sons, and continue so to live for years until such time as either
one shall choose, no matter whether the other be deceased or
living, to claim for his or her benefit, the advantages of a rela-
tion so created.

On our part it is asserted with equal confidence, that, how-
ever elsewhere binding, consent alone will not constitute a
marriage in the State of California ; that it must be followed

[ 5 J

eitlier by S(jleiiinization, or by a mutual assumption of marital
rights, duties or obligations. We claim that the law of this
State has, by the language of Section 55 of the Civil Code,
marked its emphatic condemnation of what are known to the
common law as secret marriages. It demands publicity, open
and undisguised. It is solemnization, then, as provided by law
with its concomitants of license, recording, etc., that alone con-
stitutes such publication of the fact that the parties have
entered into this relation, as meets the requirements of the
statute. In the case of consent without solemnization, there is
no admissible publication without the mutual assumption of
marital rights, duties or obligations. Without this, there can
be no lawful consummation of a marriage by consent. Accom-
panied by this the is declared to be marital ; with-
out it, .simply meretricious. This is the unequivocal language
of the Civil Code, and your Honor has doubtless observed that
while in the case of marriage without solemnization, it pro-
vides a mode of proof for both consent and consummation, it
refuses to allow the possibility of such proof for the one with-
out the other.

Counsel who preceded me cited Article II of the Civil Code
and seemed to think it repealed the concluding paragraph of
Section 55. Such is not our understanding of its reading.
We think the title of Article II sufficiently expresses its ob-
ject, namel)', "the authentication of marriage ; " it provides the
mode by which a solemnized marriage shall be authenticated
by the person who solemnizes it, and also provides the mode
in which marriage by consent may be authenticated by the
parties consenting. A mere compliance with the provisions
of Section 75 does not, in our view, create a marriage by pri-
vate contract. The marriage there spoken of is one which
has already taken place, and the view of the Section is wholly
retrospective. It permits a solemn record to be made of such
a marriage, which record, when made, acknowledged and re-
corded, in like manner as grants of real property, shall have
the same force and effect as the marriage certificate provided
for in Section 73. This joint declaration mast state the names,

[ c ]

ages and residences of the parties ; the fact that they are al-
ready married ; the time when they were married, and that
the marriage was never solemnized.

It seems to me counsel have shifted their ground since this
action was brought. Your Honor will observe upon reference
to the complaint, that a marriage by contract is alleged as of
the 25th of August, 1S80 ; and that the complaint then goes
on to say that inasmuch as the marriage had not lieen sol-
emnized, the parties proceeded to and did make a declaration
substantially conforming to the provisions of Section 75, and
authenticated and ceitified it in the statutory mode. But the
whole ground is now changed. They are not here claiming
that a marriage was contracted, of which the alleged marriage
contract is the authentication, but they say the latter is itself
the marriage contract between this pair, and that it operated
effectively to bind plaintiff and defendant indissolubly together.
This I understand to he the gi-ound upon which they now pre-
sent and argue the case ; changing and shifting the entire
theory on which the action was originally brought.

My learned associate, Judge Evans, has fully and ably dem-
onstrated, upon abundant authority, that Exhibit "1 " must be
uttei'ly futile as a compliance with the Civil Code ; and I need
not repeat his argument or again cite the authorities quoted
by him. We assert that if this document in question were
genuine, it would be only evidence of a mutual consent to
marry, under Section 55 of the Civil Code. But it cannot
constitute marriage between the parties unless it has been
followed by the mutual assumption of marital rights, duties
or obligations.

Let us suppose, if your Honor please, that instead of ilelay-
ing the presentation of her claim to be Mr. Shaion's wife for
three years, during which time she went abroad in society and
maintained her station in it as a single woman ; during which
she conducted business, collected money, made deposits in
bairks, bought and sold stocks, operated through brokers
using invariably her maiden name ; supposing, I say, instead
of three years, she had lived such single and divided life for a


period of ten or twenty years, waiting till in the course of
natui'e Mr. Sharon had gone to the grave intestate, and that
after the lapse of that number of years, and 'after such a life,
she had laid claim, as his widow, to the right to administer
his estate and to share it, and had founded such a claim on the
possession merely of this document (to say nothing of the evi-
dence that has been adduced of the divided life which it is
confessed thej^ lived, and which the counsel excuse, palliate
or explain by saying that such divided life was in accordance
with the terms of the conti'act) admitting that the parties
lived apart,not from the force of circumstances, but by voluntary
agreement, would any legal mind say that such a claim would
have judicial approval, and that a lady so situated could be
awarded administration and a widow's share in his estate ?

Suppose, again, that during the pei'iod named in this con-
tract for the suspension of marital rights, duties or obliga-
tions, and for existence not in a state of marriage, but of con-
cubinage, the defendant had openly and by a solemnized mar-
riage, properly allied himself with a virtuous woman, who should
afterwards bear him children ; would any legal mind say that
this agreement for secret marriage containing a clause drawn
in the very teeth of the statue, a clause which expressly cove-
nants that the rights, duties or obligations of marriage shall
not be assumed— but that the plaintiff shall keep her secret— that
such a document, with such stipulations, would have the effect
of converting a wife by solemnization into a concubine and
bastardizing her offspring? If your Honor please, these (juestions
carry with them their own answer.

We insist that to sustain the contention of the i)laintiff's
counsel; requires a judicial repeal of the concluding para-
tfrajih of Section 55 of the Civil Code ; that to sustain
the view on which we insist, is to move in judicial
harmony with the statute, to give effect to all of its pro-
visions, and draw the line as the law intended to draw it,
between honorable marriage and those clandestine and irregular
connections between men and women which tend to sap the
foundation of all social order ; to become, as they have Viecome

[ « ]

in this case, the fruitful source of numerous frauds and perju-
ries ; to disturb the lawful and natural devolution of estates,
and degrade true marriage to the level of concubinage.

To this proposition we add the claim that there can be no
reasonable ground for misunderstanding the language of Sec-
tion 55 of the Civil Code. It is complete, even to redundancy.
To the question, " What is meant by the phrase mutual assump-
tion of the rights, duties or obligations of matrimony ?" we
answer, " It means that the man and woman consenting to
marriage without solemnization, shall, boMi of them, simulta-
neously with the agreement to marry, and thenceforward, live
openly and publicly together as husband and wife ; that they shall
have a common dwelling ; that the wife shall take her hus-^
band's name and lay aside that of her maiden life ; that her
husband shall maintain her as his wife ; that she shall at least
be willing to bear him children who .shall take his name and
inherit his estate ; that he shall publiclj' assume and dis-
charge his legal oliligations for her debts and necessary main-
tenance ; that they shall openly live a united life and mutuallj'
fulfill all those obligations of mutual respect, fidelity and sup-
port which are so plainly pre.scribed and defined in Section 155
of the Civil Code relating to the obligations of marriage."

I know your Honor will consider these propositions with
very careful anxiety. I cannot know your Honor's mind as it
is now impressed, or as it may be influenced by your own
study hereafter ; but I must assume for the purpose of the
argument, that it is and will be in harmony with the law of
this State, as we understand it, and with the many decisions
of learned Judges to which my associate has entreated your
patient attention, and which he has .so ably illustrated hj re-
peated references to the complicated and contiicting mass of
evidence here adduced.

It is upon tliis theory of the law that I purpose to argue the
present case ; but, in my humble opinion, whatever the law
may be, the facts and circumstances establish, not merely by
a preponderance of proof, but beyond all reasonable doubt:

1. That Miss Sarah Althea Hill was never married to

[ !> I

William Sharon ; that she is not and never was his wife by
any fonii of consent followed by solemnization or by the mu-
tual assumption of marital rights, duties or obligations.

2. That the alleged declaration of marriage declared upon
in the complaint, is utterly invalid and void for want of com-
pliance with the statute, and

3. That the alleged contract and the "dear wife " letters are
established by competent proof, and by all surrounding circum-
stances to be impudent frauds and forgei'ies, and are the basis
of one of the most bold and shocking conspiracies to accom-
plish most unworthy ends, by means in themselves criminal,
which has ever been presented to any judicial tribunal. . And
to this last observation, permit me to add that if I shall fail
to denounce the manifold crimes which have been hei-e ex-
posed, as they deserve, feeling the powerlessness of the language
at my poor command to express my personal detestation of
this bold conspiracy, of these shameless frauds and bungling forg-
eries, of this wilderness of perjury and subornation of perjury,
in which this unhappy woman is the central figure, and whose
column of criminals, confessed and unconfessed, George W.
Tyler has led with such desperate hardihood ; if, I repeat, I
shall fail to do them, one and all, the justice they deserve and
would receive fi'om abler counsel, let it not be understood that
my short comings in this respect are to be charged to want of
a full and complete appi'eciation of their hideous enormity.
Of the plaintiff herself, I shall from choice say but little. Her
solitary and melancholy condition, guilty though she may be
proven of many offenses, may well awaken the commiseration
of every human being.

She says .she was hurried into what she describes as "this
fight " against Mr. Sharon, by her guide, her acquaintance, her
sweet counselor, Mr. William M. Neilson, under his promise
that it should never come into court 1

Can this be called a marriage, entered into by private con-
sent, which this unhapin' creature is persuaded to lielieve can
be just as easily shaken oft"?

Did it require, to her thinking, nothing further to dissolve

[ 10 J

her marriage than the cancellation of one docuuient by an-
other, or the material destruction of the first on the payment
of a price sufficient to satisfy the cupidity of her managers ?

Neilson tells her, " Let me make this light on Sharon, and
it shall never come to Court." She writes to him and says,
" You promised me no harm should ever come to me if I would
let you make this fight against William Sharon. * * * *
Against my will I employed your lawyer." What, indeed, can
be more pitiable than the abject and humiliating position of
this woman '« What ultimate purpose she designed to accom-
plish with these forged documents we do not know. We do
know that, when Neilson began his " fight," she was not pre-
pared to boldly commit herself, but was dragged into it by
Neilson and his confederate ; and now, urged on from without
liy such counselors, from within by the hell-begotten fury of a
woman .scorned; slighted, as she .says, by everybody; cast off
l:)y former friends ; without a home or a dollar ; looking back
with despair upon self-sought degradation, unexcused by the
pressing forces of poverty and homelessness, unseduced by
the arts and flatteries of the conscienceless pursuer of female
purity, she has herself published the lamentable history of her
own follies and crimes.

For this result the defendant is in no sense responsible, un-
less it be that a determined resistance to an infamous conspiracy,
as foully begun in the Police Court of this city, a^ it is reck-
lessly persisted in before this Superior tribunal, to place the
crown of wifehood upon the brow of an unworthy woman, can
be jvistly deemed worthy of censure. But, under any circum-
stances, and as far as my duty will permit, I shall add no
weight of reproach to what has been said, nor cast at her a
single stone of rude contempt, however deserved. To thus
assail her would indeed be vain ; and it is no part of my obli-
gation to coarsly upbraid her before this audience or your
Honor. It will be enough for me to speak of the crimes which
have been laid at her door, as far as I may, without reference
to their perpetrator ; realizing as fully as it is given me to do,
that the concenti-ated hate of man and womankind could

L 11 ]

her nothing worse tli;in tlie guilt and shame which have so
completely overwhelnieil ami Imried her- lieyoml the possibili-
ties of resurrection.

There is one other preliminary observation which I trust
your Honor will grant me leave to make.

The difficultie.s and annoyances, the wearing and exhau.sting
processes of such a cause as this, have been immeasurably in-
creased by the course the leading counsel for the plaintitt' has
seen fit to pursue. From the outset of this struggle he has
ignored all and .singular the amenities which the ancient cus-
toms of our noble profession have made the law of intercourse
between counsel, however ardent and uncompromising in their
client's behalf. He has wantonly thrown away even the scanty
garb of outward decencies with which custom, not unreason-
ably demands that the commonest humanity shall be clothed>
and with hideous brutality and uplifted tomahawk has danced
and yelled like a naked .savage on the war-path. He has tilled
the air, day after day, week after week and month after
month, with malodorous a.spersions of the motives of my asso-
ciate and myself; has with blunt directness and with covert
insinuations accused me of tampering with witne.sses and edu-
cating them to adroit perjury ; has been guilty of daily pro-
vocations to disturbance of the peace of the Court room, and
without cause or excuse has been consistently abusive and in-
solent to Court and counsel. And while endeavoring by mis-
representation and exaggeration to vilify and asperse his oppo-
nents, he has exalted himself by undeserved vauntings of his
own virtue, integrity of life and honesty of purpose ; and
awarded himself fulsome testimonials of his own intrepid
courage. I desire to notice, particularl}', one occasion.

During the earlier days of the trial, as your Honor will re-
member, we debated a legal point of great interest to all wit-
nesses and to the profession, respecting the mode of impeach-
ing witnesses provided by the code of Civil Procedure. It
upon an effort of Mr. Tyler to destroy the cre<libility of a
female witness by propounding to her questions indicating
that she had been guilty of specific acts of impropriety with

[ 12 1

men. In the heated argument that ensued, I remarked that
it did not tend to injure the character of a woman for truth
nor for integrity, as the word is used in the statute, and is
intended to be applied, to show that she has passions that have
not always been controlled, or that she may have been driven
by poverty, or circumstances, that are sometimes more power-
ful than either passion or poverty, to a life that society, while
itself indulging in it from the highest to the lowest, ati'eets
to condemn for its viciousness; and, I added, "there is no
reason in the world why an unchaste woman should not
tell the truth in a matter in which she is not interested, as
straightforward as the chastest vestal that ever drew breath.
It is not a question which the law regards at all, any more
than it regards the indulgence or non-indulgence of any other
appetite which might be deemed censurable. Would it tend
to destroj' the credibility of a wi ness to ask him upon the
stand, on cross-examination, 'Have you not taken opium?' ' Do
not you use morphine ?' 'Ha»e you not been a slave to some bad
habit V And this species of question is just like the other. It is
useless ; it only serves to hurt the feelings. It wounds and
imtimidates a witness to search his or her conscience in such a
way. What if counsel have discovered, or claim to have dis-
covered some isolated fact of a compromising nature in the
individual history of the witness, may they ask him about
that particular fact ? If a woman happens to be on the stand,
who, many years ago, under pressure of temptation, such
as that of poverty, or the arts of the seducer, has been led
astray, and she is simply a witness to the execution of a con-
tract, are counsel, upon cross-examination, at liberty to open
the closed book of her life and lay bare its errors before the
world, for the purpose of injuring her credit with Court or
jury:* What if they do so on a mere suspicion, or because
a slander which she has outlived and risen above, has at some
peu'iod of her life breathed upon her its poisonous breath ?
What if she has contracted honorable marriage and is the
mother of children; does it make against the credibility of her
testimony to rak^ up that story and exhibit it to the public ;■


[ 13 ]

It cannot and oiirjht not to do so. If ihe Court .shall lie of
opinion that tnis .specie.s of interrogation of a witne.s.s on
the stand is competent; if a lawyer's ingenuity or skill has
di.scovered some unhappy fact in the history of a human being
called to testify in a cause, and he is permitted to ask specific
questions concerning this or that particular error, then he
ought to be permitted, without any knowledge of the witness,
to go on and put every crime in the decalogue, and every
known social offense, into the form of a categorical que.stion
and propound it to the witness. He may run the gamut of
all the crimes ; murder, ai-son, robbery, forgery, bribery, subor-
nation of perjury, in the hope of at last stumbling upon one;
and when that is reached, and the witness, too ti'uthful to
deny, may admit the bitter impeachment, he may then go
into all the details and drag every circumstance of private
life from the mouth of a shrinking witness; and do this for
the purpose of what the statute calls a general impeachment."

Now, that is what I said; yet this man has twice stood be-
fore your Honor, and repeated with characteristic vehemence,
that Mr. Sharon, through the mouth of his counsel, has here
asserted that " every woman in this State is a pro.stitute and
every man a rake."

He has succeeded in getting thi.s misrepresentation upon
the record, and it has been sent abroad through the press. I
presume his virtuous .soul is satisfied, as society should be
when Mr. Tyler becomes its vindicator. My observation prop-
erly bore no such construction as he has seen fit to place upon
it. He read a portion of my remarks ar.d omitted the rest.
He omitted also another portion of this same debate — a por-
tion so remarkable for its amusing novelty that the profession
has hardly yet recovered from the .screams of derisive laughter
evoked by Mr. Tyler's unblushing self-laudations echoed and

Online LibraryWilliam Henry Linow BarnesSarah Althea Sharon, plaintiff, vs. William Sharon, defendant. Argument of W. H. L. Barnes for the defendant → online text (page 1 of 35)