Kinney v. Commonwealth

• Decision Date: 03 October 1878
• Parties: KINNEY v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

71 Va. 858

KINNEY v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

October 3, 1878

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:

" 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.

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...