Staunton spectator. [volume] (Staunton, Va.) 1849-1896, 1878-10-08

The interesting and important case of Kinney
(colored) VS.. the Commonwealth was decided In
the Supreme Court on last Thursday. The
Plaintiff in Error, Kenney. was.indicted in the
County Court of Augusta county for lewdly as
and cohabiting with Mahala Miller
(white). He was found guilty, and a fine as
sessed against him to the amount of $500. The
case was taken up on a writ of error to the Cir
cult Court, which affirmed the judgment of the
County Conrt, and Mr.. Quarles. Counsel for
Plaintiff. applied to the Supreme Court for
writ of error to this latter judgment, which
was awarded.
The ground of defense was, that Kenney and
Mahala Miller, although domiciled in this
State, were married in the District Of Column
bia, where marriages between whites and ne
groes are not unlawful.
The opinion of the Court was q very lengthy
one. reviewing the English and American
cases bearing on the subject.
The only question before the Court, on the
bill of exceptions,( and we may here say that
the case was taken up merely as test case,
was whether the alleged marriage celebrated
in the District Of Columbia "in accordance
with the laws of said District is a bar to the
prosecution. It was conceded that marriage
in this State between a white person and ne
gro is void.
It was also admitted that Andrew Kenney
and Mahala Miller had their domicite in Angus
ia county, that they remained out of the State
only ten days after their marriage and return
ed here and that this county is still their DOM
icile.
Judge Christian says :-"The important ques
ton, and one of first Importance in this State
is, Does the marriage in the District of Column
bia, made in rduduns legis of this State, protect
the parties in a prosecution in this State for a
violation of its penal laws in this most impor-
tant and vital branch of criminal jurispru-
dence, affecting the moral well-being and So
cial order of this State? Must the lea loci con-
troctus or the lea domiciti prevail.
1t was conceded that every country had the
power to make laws regulating the marriage of
its own Subjects but it was urged by the COun-
sci for Plaintiff that such laws could not act
extra territorial, but must be confined, with
some exceptions, to such marriages as were
contracted within the State wheret hey are pro-
hibted, and cited the rule laid down by jurists
and text-writers that "a marriage, valid when
celebrated, is good everywhere
Whilst this was undoubtedly the general
rule the Court held that there were exceptions
to it as well established the rule itself, and
quoted the exception made by Story of mar
TlaScS pCSItDety pTOfttOUeI W Tue pAOktc t0tO "
country from motives Of policy.
The case of Brook S. Brook, reported ia 8 II.
and c., 1893, was referred to as one singular SIM
| liar to this and was reviewed at length That
since the decision of this case, decided by the
| House of Lords, it could be affirmed that in
| England marriage prohibited by law in that
country between parties domiciled there and
declared by act of Parliament to be absolutely
void, is invalid, no matter where celebrated
| In this country the same doctrine is affirmed
| in North Carolina, Louisiana, and Tennessee.
| The Judge then says
whenever the question has arisen in the
Southern States, it has been held that a mar
riage between white person and negro, al
| though 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 dOmicil, such marriage is no bar to a
criminal prosecution. And such is the law of
| the State. 1t is now SO declared by statute-see
session Acts of lS77-'7S. The statute, however,
was passed after the marriage of the parties in
this case; but without such statute the mar
riage was a nullity. 1t was q marriage prOhib-
tied and declared absolutely void. 1t was con-
trary to the declared public law, founded upon
| more than century; and one upon which So
cial order, public morality and the best inter
ests of both races depend. This unmistakable
wisdom and the moral development Of both
races, has been shown by not only declaring
marriages between whites and negroes abSo-
allies.
The laws enacted to further and uphold this
declared policy would be futile and a dead let
ter, if. in fraud of these salutary enactments,
both races might. by stepping across an imagi-
ately returning and insisting that the marriage
celebrated in another State or country, should
be recognized as lawful, though denounced by
ba mi In w Or q a Wful
absolutely void.
No State will permit its citizens to violate it's
laws by such evasion; but the law Of the DOM
icil 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
Referring to the Massachusetts case OF Med
way VS.. Needham, I6 Mass, l57, relied on by
the Plaintiffi and which, though precisely SIM
liar to the present case, was decided in opposi-
ton to the views set forth in this decision, the
Judge cited the remarks Of the Lord Chancel-
lor of England, condemnipg the decision In the
above case and declaring it based upon IN
sound principles OF law, He said it could
have but little weight in forming the judicial
determination of the Court on the question be-
| fore them.
In concluding his opinion, the Judge said
that he had considered at length the English
and American cases, because the question was
one of first Importance l., the Court, and be-
cause it was question which materially af-
fects public morality.
1.-THE public policy of the State in preventing
the intePmipgling of the races, by refusing to
legitamatiZe marriages between them has been
illustrated by its legislation for more than a
century. Every well organized society is es-
sentlally interested in the existence and har-
mony and decorum of all its social relations
Marriage the most elementary and useful of
all, must be regulated AND controlled by the
sovereign power in the State. The purity of
public morals. the moral and physical develop
| ment of both races, and the highest advance
ment of our cherished Southern civilization
| under which two distinct races are to work out
and accomplish the destiny to which the AL
mighty has assigned them on this Continent
all require That they should be kept distinct
and separate, and that ge4nections and all ALI
| to forbid them, should be prohibited by posi-
tive law and be subject to no evasion"
Upon the whole case, am of opinion that
the marriage celebrated in the District of Co.
lumbia between Andrew Kenney and Mahala
Miller, though lawful there, being positively
prohibited and declared void, by the statutes of
this State, is invalid here and that said mar
rage was a mere evasion of the law of this
State and cannot be pleaded in bar of a crimi-
| nal prosecution here" .-. r-+ E
Upon the whole case he was of opinion that
there was no error in the judgment of the Cir
cult Court Affirming the judgment of the Coun-
ty Court, and that both be affirmed by this
Court. All the other Judges conquered in the
opinion of Judge Christian. -a $50
LARCENY.-Arthur Elliot, coIored youth,
was chased from Tom Burke's saloon to the
pump house on yesterday and brought back by
Officer Hounihan. The charge against Arthur
was for stealing nine live chickens from Tom
Burke's and putting them in an umbrella,
xrvfR