« PreviousContinue »
That such a citizen would have a right of transit with his wife through Virginia, and of temporary stoppage, and of carrying on any business here not requiring residence, may
be conceded, because those are privileges following a citizen of the United States, as given by the section of the Constitution just quoted, and by the clause of the Fourteenth Amendment previously considered. But it is equally true that such a citizen could not, by becoming a citizen of Virginia, bring here the privilege of exercising, as such, a right legally enjoyed in the District, but not given here. In the case of Paul v. Virginia (8 Wallace, 180) the Supreme Court of the United States held that 'special privileges enjoyed by citizens in their own States are not secured to them in other States' by the provision of the fourth article of the Constitution which has been quoted. Reviewing its decision in Bank of Augusta v. Earle (13 Peters, 586), the court said that it was never intended by this provision to give to citizens from another State higher and greater privileges in any State than are enjoyed by citizens of that State; that it' was not intended by the provision to give to laws of one State any operation in other States; that they can have no such operation except by the permission, express or implied, of those States; and that the special privileges which they confer must be enjoyed at home, unless the assent of other States to their enjoyment therein be given.' (Pp. 180, 181 of 8 Wallace.) The provision of the Constitution in question refers to the privileges given in the State into which the citizen goes, and not to those given in the State from which he comes. And so, even if this petitioner had been a citizen of another State, lawfully married there, and had come here bringing his wife, intending to live here in a condition of matrimony forbidden by our laws, he could not claim the protection of the National Constitution or of any law of Congress in thus violating our laws.
“ But the case of the petitioner is weaker than that just
supposed. He and his consort were citizens of Virginia. They went abroad to be married in evasion of her laws, and they returned to cohabit together here in violation of them. The marriage certificate gives Virginia as the petitioner's residence, and his going to the District of Columbia was plainly an act in fraudem legis domesticæ.
The question whether a marriage illegal at home, and contracted in another place, to which the parties had gone in intentional evasion of the domestic law, should be treated as valid by the home State on their resuming residence within it, has been much discussed by learned jurisconsults, such as Burge, Huber, Savigny, Pothier, Lord Mansfield, Lord Campbell, Lord Cranworth, Story, Kent, Wharton and others, whose opinions have been divided. But the question thus discussed has supposed the non-existence of positive law in the home State. It has been on the question whether the courts of the home State should, in the absence of statutory law, treat the marriage as valid in comity to the State where it was contracted; all writers conceding to the home State the power of adopting positive laws declaring such marrriage illegal at will. For I think I do not go too far when I assert it as a principle now well settled that 'a State may follow its citizens abroad and attach to acts done there the same consequences as if done at home; an hat though the law of the place of a marriage may determine its forms and regularity, yet the law of the domicile of the parties must decide whether the contract was one which might be lawfully made ;' and this unquestionably is the rule in regard to marriages polygamous, incestuous and contrary to public policy. Our own Court of Appeals has so decided in Kinney v. Commonwealth (2 Virginia Law Journal, 632); following the English House of Lords in the case of Brook v. Brook (9 House of Lords cases, 193). So also have the Supreme Courts of North Carolina, South Carolina and Louisiana, in Williams v. Oates (5 Iredell, 538); State v. Kennedy, (76 North Carolina, 351);
State v. Ross, (77 ibid.), and Central Law Journal for April, 1877, and Dupré v. Bonead (10 La. An., 411).
" But the Supreme Court of Massachusetts, in Medway v. Needham (16 Mass., 157), and that of Kentucky, in Stevenson v. Gray (17 B. Monroe, 192), have decided contrariwise.
“The question can no longer be treated as open, however, in Virginia, whose Legislature has recently, in the criminal revisal of March 14, 1878, chapter 7, section 3, declared
“If any person, resident in this State and within the degrees of relationship mentioned in the ninth and tenth sections of chapter 104 of the Code, or any white person and negro, shall go out of the State for the purpose of being married, and with the intention of returning, and be married out of it, and afterward return to and reside in it, cohabiting as man and wife, they shall be as guilty, and be punished, as if the marriage had been in this State.'
“Now there are many illegal marriages other than those named in the foregoing penal section, of which, though illegal here, Virginia takes no notice if contracted without her jurisdiction. The ordinary runaway matches,' so frequent in this country, and those known as Gretna Green marriages in England are not placed in either country under the ban of annulling or penal statutes, but, on the principles of inter-state comity, are allowed to stand good. It is only marriages which are polygamous, incestuous or contrary to public policy which are made the subject of penal exactments, such as that of the third section of chapter 7 of our criminal revision just given.
“This petitioner is here, not as a citizen of the District of Columbia, to which he went to be married in evasion of the laws of Virginia, but as a citizen of Virginia amenable to her laws. He is here in that character only, and has brought back no other right in regard to the marriage which he made abroad than he took away. He cannot bring the
marriage privileges of a citizen of the District of Columbia, any more than he could those of a citizen of Utah, into Virginia, in violation of her laws. It was competent for the State of Virginia, so far as there is anything in the Constitution and laws of the United States to prevent, to enact the law just quoted under which the petitioner was convicted, and therefore his case is beyond relief from a Federal court. I know it is claimed that the provision of the fourth article of the National Constitution, which requires each State to 'give full faith and credit to the public acts, records and judicial proceedings of the other States,' has an important bearing on the present case. I have already abundantly shown that it cannot have the effect of making the laws of one State the laws of another. It is doubtful whether the marriage certificate of a clergyman or magistrate is a 'public' record in the meaning of this provision of the Constitution. But whether it be or not the clause in question could only go to the extent of rendering indisputable the fact of the marriage and of its legality in the place of contract. To give to public records 'full faith and credit, is to attribute to them positive and absolute verity, so that they cannot be contradicted, or the truth of them be denied, any more than in the State where they originated.'—Story on the Constitution, section 1,310. “A Court is bound to take judicial notice of the public records of another State.'-Owings v. Hull, 9 Peters, 627. A judgment in one State is a judgment in another, only so far as to preclude inquiry as to the merits of the subject-matter of the original judgment.' -McElmoyle v. Cohen, 13 Peters, 312. So that a money judgment obtained in the Courts of another State is not a judgment here, but only a chose in action, requiring to be specially sued upon in this State. A public record certifying a marriage to have been legally contracted and valid there, though indisputable proof here of those two facts, yet does not convert the fact of validity there into validity here, contrary to the express local law. It has never been
pretended that the laws of a State, can by the acts of individuals be subordinated within its own jurisdiction to the laws established by another State. A citizen of Virginia may go to the Federal District of Columbia, or to the Federal Territory of Utah, and be married there in conformity to the local laws, and may remain there as a resident and citizen with impunity. But if his object in going was to evade the laws of Virginia, and if, after marriage, he returns here and remains in a condition of matrimony forbidden by our laws, the certificate of his marriage in the District or Territory, in conformity to its laws, will have no other value here than as indisputable proof of his violation of our laws.
On the whole, I am of opinion that the law of Virginia, under which this petitioner is detained in prison by the State, does not violate the Constitution or any law of the United States; and that I have, consequently, no jurisdiction to grant the relief for which the petitioner prays. The writ of habeas corpus is denied."
V.-SELECT CASES: SCOTTISH.
By Hugh BARCLAY, LL.D.
Succession-Accumulation-Thellusson Act. A testatrix directed her trustees, after the lapse of certain annuities, to invest a specific sum for certain charities, and for increasing the fund yearly to add one-fourth part of its interest, and to pay the remaining three-fourths to the charities equally: Held, on a special case-Ist. that the direction to accumulate the one-fourth was null and void after twenty-one years from the time the direction came into operation; and, 2nd. (dub. Lord Ormidale) the whole income, after the lapse of the