Kinney v. Virginia, 71 Va. 858 (1878)
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Supreme Court of Appeals of Virginia.
KINNEY
v.
THE COMMONWEALTH.
Oct. 3, 1878.
*1 K, a negro man, and M, a white woman, both domiciled in the county
of Augusta, Virginia, left Virginia and went to Washington, D. C., and
were married there according to the regular forms for celebrating
marriages, and after remaining absent from Virginia about ten days,
returned to their home in Augusta county, Virginia, where they have
since lived as man and wife. By the laws of Virginia (C. V. 1873, ch.
105, § 1), all marriages between a white person and a negro are
absolutely void. On an indictment for lewdly and lasciviously
associating and cohabiting together--
HELD:
1. Although such marriages are not prohibited by the laws of the
District of Columbia, and this marriage was performed according to the
ceremonies there prescribed, it is void under the laws of Virginia,
and the parties are liable to the indictment.
2. While the forms and ceremonies of marriage are governed by the laws
of the place where the marriage is celebrated, the essentials of the
contract depend upon and are governed by the laws of the country where
the parties are domiciled at the time of the marriage, and in which
the matrimonial residence is contemplated.
The facts are fully stated by Judge Christian in his opinion.
J. M. Quarles, for the appellant.
The Attorney General, for the Commonwealth.
CHRISTIAN, J.
The plaintiff in error was indicted in the county court of Augusta
county for lewdly associating and cohabiting with Mahala Miller. He
was found guilty and a fine assessed against him to the amount of
$500. The case was taken up on writ of error to the circuit court,
which affirmed the judgment of the county court, and to this latter
judgment of the circuit court a writ of error was awarded by one of
the judges of this court. The bill of exceptions taken on the trial,
in the county court, which brings up before this court the only
question we have to determine, is in these words:
*2 “Be it remembered, that on the trial of the indictment in this
case, the Commonwealth, to sustain the issue on her part, proved to
the jury that the defendant, Andrew Kinney, and a certain Mahala
Miller, on the 1st day of January, 1877, and from that time to the
27th day of August, 1877, in the county of Augusta and state of
Virginia, did live and associate together as man and wife; that said
Andrew Kinney is a negro, and said Mahala Miller a white woman, and
that in November, 1874, they, as citizens of the state of Virginia,
regularly domiciled in the county of Augusta, left their own state for
the purpose of being married in the district of Columbia, and in ten
days thereafter returned to this state to live, and have since lived
together as man and wife in said county of Augusta.”
The defendant, to sustain the issue on his part, proved that he and
the said Mahala Miller were married in the District of Columbia on the
4th day of November, 1874, in accordance with the laws of said
district.
Whereupon the counsel for the defendant moved the court to instruct
the jury as follows, that is to say: that under the circumstances
proven, the marriage of Andrew Kinney and Mahala Miller, in the
District of Columbia, on the 4th day of November, 1874, is valid and a
bar to this prosecution, and that they must find a verdict of
acquittal. But the court refused to give the said instruction to the
jury, and instructed the jury as follows: “That the said marriage of
the defendant and said Mahala Miller was, under the circumstances
proven, but a vain and futile attempt to evade the laws of Virginia,
and override her well known public policy, and is therefore no bar to
this prosecution; to which opinion and action of the court, in
refusing the said instruction asked for by the counsel for the
defendant, and in giving the said instruction given by the court, the
defendant, by his counsel, excepts, and tenders this his bill of
exceptions, which he prays may be signed, sealed and made a part of
the record in this case.”
The sole question submitted by this bill of exceptions for the
adjudication of this court is, Whether the alleged marriage celebrated
in the District of Columbia, “in accordance with the laws of said
district,” as certified in the certificate of facts, is a bar to this
prosecution? It is conceded that a marriage in this state between a
white person and a negro is void. It is not only prohibited by the
statute law, but penalties are imposed for its violation. The 1st
section of ch. 105, Code 1873, provides that “all marriages between a
white person and a negro, and all marriages which are prohibited by
law on account of either of the parties having a former wife or
husband then living, shall be absolutely void without any decree of
divorce or other legal process.” In the same section other marriages
prohibited by law therein mentioned, are voidable only--that is,
declared to be void only from the time they shall be so declared by
decree of divorce or nullity. These are cases of marriages within the
prohibited degrees of consanguinity or affinity, or where either party
was insane or incapable from physical causes. Such marriages are void
when declared to be void by decree of divorce or nullity, or when the
parties are convicted under the third section of chapter 192, which
denounces certain penalties against marriages of parties within the
prescribed degrees of consanguinity or affinity. But marriage between
a white person and a negro is declared by statute to be absolutely
void without any decree of divorce or other legal process. If,
therefore, the marriage had been celebrated in this state between
Andrew Kinney, who is a negro, and Mahala Miller, who is a white
woman, no matter by what ceremonies or solemities, such marriage would
have been the merest nullity, and the parties must have been regarded,
under our laws, as lewdly associating and cohabiting together, and
obnoxious to the penalties denounced by our statute against this gross
offence.
*3 Does the marriage of the parties in the District of Columbia, where
marriages between white persons and negroes are not prohibited,
present a bar to this prosecution and put the parties on any different
footing when arraigned before our tribunals for a violation of the
laws of this state? It is admitted that Andrew Kinney and Mahala
Miller had their domicile in Augusta county, in this state; that they
remained out of the state only ten days after their marriage, and
returned here, and that this county is still their domicile.
It is plain to be gathered from the whole record, if not indeed
admitted, that these parties, knowing they could enter into no valid
marriage contract in this state, went to the city of Washington for
the purpose of evading the statute law of this state; were there
married, and in a few days returned to this state. They never changed
nor designed to change their domicile. It was here then; it is here
now.
The important question, and one of first impression in this state is:
Does the marriage in the District of Columbia, made in fraudem legis
of this state, protect the parties in a prosecution in this state for
a violation of its penal laws in this most important and vital branch
of criminal jurisprudence, affecting the moral well being and social
order of this state? Must the lex loci contractus or the lex domicilii
prevail?
There can be no doubt as to the power of every country to make laws
regulating the marriage of its own subjects; to declare who may marry,
how they may marry, and what shall be the legal consequences of their
marrying. The right to regulate the institution of marriage; to
classify the parties and persons who may lawfully marry; to dissolve
the relation by divorce; and to impose such restraints upon the
relation as the laws of God, and the laws of propriety, morality and
social order demand, has been exercised by all civilized governments
in all ages of the world.
It is insisted, however, by the learned counsel for the plaintiff in
error, in the ingenious and able argument which he addressed to this
court, that conceding the power of every state and country to pass
such laws, yet they never act extra territorial, but must be confined,
with rare exceptions, to such marriages as are contracted and
consummated within the state where they are prohibited. He invokes for
his client in this case the rule laid down by jurists and text-
writers, that “a marriage valid where celebrated is good everywhere.”
This is undoubtedly the general rule. But there are certain exceptions
to this general rule, and while in its application and the affirmance
of certain exceptions thereto, there was for a long time much
confusion in the authorities and conflict in the cases, I think it may
now be affirmed that there are exceptions to this general rule as well
established and authoritatively settled as the rule itself.
Mr. Justice Story, in his valuable work on the Conflict of Laws, §
113, probably lays down the general rule contended for more strongly
than any other modern author. He says: “The general principle
certainly is, that between persons sui juris marriage is to be decided
by the law of the place where celebrated. If valid there it is valid
everywhere. It has a legal ubiquity of obligation. If invalid there it
is equally invalid everywhere.” But he immediately adds in the
following section (113a): “The most prominent, if not the only known
exceptions to the rule, are those marriages involving polygamy and
incest, those positively prohibited by the public law of a country
from motives of policy, and those celebrated in foreign countries by
subjects entitling themselves under special circumstances to the
benefit of the laws of their own country.”
*4 In the comparatively recent case of Brook v. Brook, reported in 9
H. L. C. 193 (marg.), 145 (bottom), I find the most elaborate, learned
and satisfactory discussion of this general rule on the subject of
marriage, with the exceptions thereto, that I have seen in any of the
numerous cases on the subject. The facts of that case and the
principles therein declared are singularly apposite to the case in
hand.
The Act of 5 and 6 William, 4, ch. 54, enacts that all marriages which
should thereafter be celebrated between persons within the prohibited
degrees of consanguinity or affinity, “shall be absolutely null and
void to all intents and purposes whatsoever.” The marriage of a man
with his wife's sister is included in this prohibition.
William Leigh Brook, after the death of his first wife, intermarried
with Mrs. Emily Armitage, the lawful sister of his former wife. The
marriage was celebrated at a Lutheran church at Wansbeck, near Altona,
in Denmark. At the time of the Danish marriage, both Mr. Brook and
Mrs. Armitage were lawfully domiciled in England, and had merely gone
over to Denmark on a temporary visit. According to the laws of
Denmark, where the marriage was celebrated, it was not unlawful for a
man to marry his wife's sister. In a suit among the heirs of Brook,
Vice-Chancellor Stuart, with whom sat Mr. Justice Cresswell, were of
opinion, and so declared, that the marriage in Denmark was, by the
laws of England, invalid. The case was carried up to the house of
lords. It was there considered with that great deliberation and
carefulness characteristic of that great tribunal. Opinions were
delivered by the lord chancellor (Lord Campbell), Lord Cranworth, Lord
St. Leonards, and Lord Wensleydale. After reviewing a number of
English and some American cases, the lord chancellor said: “They (the
appellants) rest their case entirely upon the fact that the marriage
was celebrated in a foreign country, where the marriage of a man with
the sister of his deceased wife is permitted.” There can be no doubt
of the general rule that a foreign marriage, valid according to the
law of a country where it is celebrated, is valid everywhere. But
while the forms of entering into the contract of marriage are to be
regulated by the lex loci contractus, the law of the country in which
it is celebrated, the essentials of the contract depend upon the lex
domicilii, the law of the country in which the parties are domiciled
at the time of the marriage, and in which the matrimonial residence is
contemplated. Although the forms of celebrating the foreign marriage
may be different from those required by the law of the country of
domicile, the marriage may be good everywhere. But if the contract of
marriage is such in essentials as to be contrary to the law of the
country of domicile, and it is declared void by that law, it is to be
regarded as void in the country of domicile, though not contrary to
the law of the country in which it was celebrated. This qualification
upon the general rule “that a marriage valid where celebrated is good
everywhere,” he adds, is to be found in the writings of many eminent
jurists who have discussed the subject, among whom he mentions Huberus
and Story.
*5 Lord Cranworth states that the marriage referred to in the general
rule is not a marriage prohibited by the laws of the country to which
the parties contracting matrimony belong. The other lords, as well as
Lord Cranworth, concur fully in the opinion of the lord chancellor.
Whatever conflict of authority there may have been on this subject, it
may now be affirmed, since the decision of Brook v. Brook, that in
England, a marriage prohibited by law in that country, between parties
domiciled there, and declared by act of parliament to be absolutely
void, is invalid there no matter where celebrated. In this country the
same doctrine is affirmed in North Carolina, Louisiana and Tennessee.
See Williams v. Oates' ex'or, 5 Ired. R. 535; State v. Kennedy, 76
North Car. 251; State v. Ross, 77 North Car. S. C. Central Law
Journal, April, 77; 10 La. An. 411, Dupre v. Boulad's ex'or.
Whenever the question has arisen in the southern states, it has been
held that a marriage between a white person and a negro, although the
marriage be celebrated in a state where such marriages are not
prohibited, is void in the state of the domicile, and when they go to
another state temporarily, and for the purpose of evading the law, and
return to their domicile, such marriage is no bar to a criminal
prosecution. And such is the law of this state. It is now so declared
by statute. See Sess. Acts of 1877-8. The statute, however, was passed
after the marriage of the parties in this case. But without such
statute, the marriage was a nullity. It was a marriage prohibited and
declared ““absolutely void.” It was contrary to the declared public
law, founded upon motives of public policy--a public policy affirmed
for more than a century; and one upon which social order, public
morality, and the best interests of both races depend. This
unmistakable policy of the legislature, founded, I think, on wisdom
and the moral development of both races, has been shown by not only
declaring marriages between whites and negroes absolutely void, but by
prohibiting and punishing such unnatural alliances with severe
penalties. The laws enacted to further and uphold this declared policy
would be futile and a dead letter if in fraud of these salutary
enactments, both races might, by stepping across an imaginary line,
bid defiance to the law, by immediately returning and insisting that
the marriage celebrated in another state or country, should be
recognized as lawful, though denounced by the public law of the
domicile as unlawful and absolutely void. No state will permit its
citizens to violate its laws by such evasions. But the law of the
domicile will govern in such case, and when they return, they will be
subject to all its penalties, as if such marriage had been celebrated
within the state whose public law they have set at defiance.
There is one American case which is directly opposed to the principles
herein declared, the facts of which are precisely the same as in the
case before us. It is the case of Medway v. Needham, 16 Mass. R. 157,
which was strongly relied on by the learned counsel for the plaintiff
in error as authority to govern this case. But I think that case is
not supported by authority nor grounded on any sound principles of
law. That was the case of a marriage between a white person and a
negro. The parties were domiciled in Massachusetts, whose laws at that
time prohibited such marriages. They went into Rhode Island, where
such marriages were lawful, were there married, and returned to
Massachusetts. The supreme court of that state held the marriage to be
valid, and declared, in an elaborate opinion, that “a marriage which
is good by the laws of the country where it is celebrated, is valid in
every other country; and although it should appear that the parties
went into another state to contract such marriage, with a view to
evade the laws of their own country, the marriage in the foreign
country will nevertheless be valid in the country in which the parties
live.”
*6 In commenting on this case, the lord chancellor, in Brook v. Brook,
supra (219), says: “I cannot think it is entitled to much weight, for
the learned judge admitted that he was overruling the doctrine of
Huberus and other eminent jurists; he relied on decisions in which the
forms only of celebrating the marriage in the country of celebration
and the country of domicile were different; and he took the
distinction between cases where the absolute prohibition of marriage
is forbidden on motives of policy, and where the marriage is
prohibited as being contrary to religion on the ground of incest. I,
myself, must deny the distinction. If a marriage is absolutely
prohibited in any country as being contrary to public policy and
leading to social evils, I think that the domiciled inhabitants of
that country cannot be permitted, by passing the frontier and entering
another state in which the marriage is not prohibited, to celebrate a
marriage forbidden by their own state, and immediately returning to
their own state, to insist on their marriage being recognized as
lawful.”
Lord Cranworth, referring to the same case, said: “I also concur
entirely with my noble and learned friend that the American decision
of Medway v. Needham, cannot be treated as proceeding on sound
principles of law.
The province or state of Massachusetts positively prohibited by its
laws, as contrary to public policy, the marriage of a mulatto with a
white woman; and on one of the grounds, pointed out by Mr. Story, such
a marriage ought certainly to have been held void in Massachusetts,
though celebrated in another province where such marriages were
lawful.”
With such condemnation, from so high a source, of this decision as
authority, and when it is opposed by the decisions of our sister
southern states above referred to, and contrary to sound principles of
law, I think, though a case exactly in point upon its facts, it can
have but little weight in forming our judicial determination of the
question before us in this case.
There is another American case also relied on by the counsel for the
plaintiff in error for the doctrine that “a marriage valid where
celebrated is valid everywhere.” It is a Kentucky case, Stevenson v.
Gray, reported in 17 B. Monr. R. 193. That was a marriage between a
nephew and his uncle's wife. Such a marriage was prohibited in
Kentucky, but not in Tennessee. The parties went into Tennessee, and
were there married and returned to Kentucky. It was held that the
marriage was valid in Kentucky. But it is to be noted that such
marriages are not declared by the Kentucky statute absolutely void,
but voidable only--that is, to be avoided by judgment of a district
court or court of quarterly sessions. The reasoning of the judge who
delivered the opinion of the court in that case, shows that he treats
the case of a marriage voidable only, and not ipso facto void. If such
marriage had been declared absolutely void by the Kentucky statute,
the decision of the court, no doubt, would have been different.
*7 In the seventh edition of Story's “Conflict of Laws,” p. 178, the
editor adds a section in which he says: The limitation defined by Lord
Campbell, chancellor, in Brook v. Brook, is certainly characterized by
great moderation and good sense; that while the form of the contract,
the rites and ceremonies proper or indispensable for its due
celebration, are to be governed by the laws of the place of the
contract or of celebration, the essentials of the contract depend upon
the lex domicilii, the law of the country in which the parties are
domiciled at the time of the marriage, and in which the matrimonial
residence is contemplated. Hence, if the incapacity of the parties is
such that no marriage could be solemnized between them * * * and,
without changing their domicile, they go into some other country where
no such limitation or restriction exists, and there enter into the
formal relation with a view to return and dwell in the country in
which such marriage is prohibited by positive law, it is but proper to
say that a proper self-respect (of the state or government in
prohibiting such a marriage) would seem to require that the attempted
evasion would not be allowed to prevail.
I have thus considered, at length, the authorities, English and
American, on this question, because it is one of first impression in
this court, and because it is a question which materially affects
public morality, social order, and the best interests of both races.
The public policy of this state, in preventing the intercommingling of
the races by refusing to legitimate marriages between them has been
illustrated by its legislature for more than a century. Every well
organized society is essentially interested in the existence and
harmony and decorum of all its social relations. Marriage, the most
elementary and useful of all, must be regulated and controlled by the
sovereign power of the state. The purity of public morals, the moral
and physical development of both races, and the highest advancement of
our cherished southern civilization, under which two distinct races
are to work out and accomplish the destiny to which the Almighty has
assigned them on this continent--all require that they should be kept
distinct and separate, and that connections and alliances so unnatural
that God and nature seem to forbid them, should be prohibited by
positive law, and be subject to no evasion.
Upon the whole case, I am of opinion that the marriage celebrated in
the District of Columbia between Andrew Kinney and Mahala Miller,
though lawful there, being positively prohibited and declared void by
the statutes of this state, is invalid here, and that said marriage
was a mere evasion of the laws of this state, and cannot be pleaded in
bar of a criminal prosecution here.
If the parties desire to maintain the relations of man and wife, they
must change their domicile and go to some state or country where the
laws recognize the validity of such marriages.
*8 Upon the whole case, I am opinion that there is no error in the
judgment of the circuit court affirming the judgment of the county
court, and that both be affirmed by this court.
The other judges concurred in the opinion of Christian, J.
JUDGMENT AFFIRMED.
Distinguished by Ex parte Chace, 69 L.R.A. 493, 26 R.I. 351, 58 A.
978, 3 Am.Ann.Cas. 1050 (R.I. Jul 23, 1904)