State v. Kennedy
| Decision Date | 31 January 1877 |
| Citation | 22 Am.Rep. 683,76 N.C. 251 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. ISAAC KENNEDY and MAG KENNEDY. |
INDICTMENT for Fornication and Adultery, tried at August Special Term, 1876, of MECKLENBURG Superior Court, before Schenck, J.
By consent the following special verdict was rendered; Isaac Kennedy is a negro man and Mag Kennedy a white woman. In 1868 they were citizens of this State. Subsequently they went to South Carolina to evade the law of this State prohibiting intermarriage of negroes and white persons, and were married according to the law of that State and immediately returned to this State. They did not intend to change their domicil from North Carolina, and have lived together as man and wife. The laws of South Carolina do not prohibit marriages between such persons.
Upon this state of facts His Honor held that the defendants were guilty as charged in the bill of indictment and the verdict was so entered. Judgment. Appeal by defendants.
Attorney General, for the State .
Messrs, Shipp & Bailey, for the defendants .
The defendants in this case were domiciled in North Carolina before and at the time of their marriage in South Carolina, to which State they went for the purpose of evading the law of North Carolina which prohibited their marriage, and they immediately after the marriage returned to North Carolina where they have since continued to reside.
To quote from the opinion of Lord Cranworth in Brook v. Brook, 9 H. L. 193. “There can be no doubt of the power of every country to make laws regulating the marriage of its own subjects; to declare who may marry; how they shall marry; and the consequences of their marrying.”
It is not necessary to say that a marriage contracted in another State between residents of this State, without the rites and ceremonies required in this State, will be void, even though the parties left this State for the purpose of evading those rites. Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 416.
As to the formalities of the marriage the lex loci will govern. But when the law of North Carolina declares that all marriages between negroes and white persons shall be void, this is a personal incapacity which follows the parties wherever they go so long as they remain domiciled in North Carolina. And we conceive that it is immaterial whether they left the State with the intent to evade its law or not, if they had not bona fide acquired a domicil elsewhere at the time of the marriage. Story Confl. Laws, § 65. Williams v. Oates, 3 Ire. 535. In Brook v. Brook, above cited, Lord Campbell says, “It is quite obvious that no civilized State can allow its domiciled subjects or citizens by making a temporary visit to a...
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