The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1878-10-10

riage was celebrated at a Lutheran church
at Wansbeck, near Atona, in Denmark. Al
the time OF the Danish marriage both Mr..
Brook and Mrs. Armetage were lawfully
domiciled in England; and had merely gone
over to Denmark on a temporary oisit. Ac-
cording to the laws OF Denmark, where the
marriage was celebrated, it was not unlaw-
full for man to marry his wife's sister. In
suit among the heirs of Brook, vice Chan-
cellor Stuart, with whom sat MIR. Jastlce
| Cresswell, were of opinion and SO declared
that the marriage in Denmark was by the
law of England invalid. The case was car
ried up to the House OF Lords. 1t was there
considered with that great deliberation and
carefulness characteristic OF that great trb-
unal. Opinions were delivered by the Lord
Chancellor, (Lord CampbelD Lord Gran
worth, Lord St. Leonard, and Lord Wen
| sleydale. After reviewing number OF
| English and some American cases, the Lord
Chancellor said; ssrhey 1.-THE appellants) rest
their case entirely upon the fact that the
marriage was celebrated in foreign coun-
try, where the marriage of man with the
sister OF his deceased wife is permitted.
There can be no doubt of the general rule
| that foreign marriage valid according to
| the law OF country where it is celebrated
is valid everywhere. But while the forms
to be regulated by the lea loci contractus,
the lawssof the country in which it is cele-
brated, the essentials OF the contract depend
| upon the lea domicilii, the law of the cOun-
try in which the parties are domiciled at the
time OF the marriage, and in which the mat
rimonial residence is contemplated. AL
though the forms of celebrating the foreign
marriage may be different from those re-
quired by the law of the country of domi-
Gle, the marriage may be good everywhere.
But II the contract of marriage is such in es-
sentials as to be contrary to the law of the
country of domicle and 1t is declared coid
bv that laao, 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 marrige valid where cell
ebrated, is good everywhere" he adds, is to
be found in the writings of many eminent
iurists who have discussed the subject, among
whom he mentions Huberus and Story.
Lord Cranworth states that the marriage
referred 10 in the general rule is not a mar
rage prohibited by the laws Of the country
to which the parties contracting matrimony
belong. The other Lords, as we'll as Lord
Cranworth, concur fully in the opinion of
the Lord Chancellor. Whatever conflict of
authority there may have been on this sub
iect it may now be affirmed since the decis-
ion of Brook VS.. Brook that in England
marriage prohibited by law in that country
between parties domiciled there and de-
clared by Act of Parliament to be absolutely
void, is invalid there, no matter where cele-
brated. In this country the same doctrine
is affirmed in North Carolina, Louisiana and
Tennessee, Lee William v. Oates, Ir.
53S; State v. Kennedy 76 N. C. 25l; State vs..
Ross " N. c. S. c.; Central Law Jour.
April 1877, Dupre VS.. Bonead 10 La. An
Ali.
Wherever the question has arisen in the
Southern States it has been held that mar
rage between white person and negro,
although the marriage be celebrated in a
State where such marriages are not prohlb-
tied, is void in the State Of the domicile and
when they goto another State temporarily
and for the purpose of evading the law, and
return to their domicile. such marriage is no
bar to criminal prosecution. And such is
the law of this. State. 1t is now so declared
by the statute. See Sess. Acts of 1878.
The statute, however, was passed after the
marriage of the parties in this case. But
without such statute the marriage was null
lily. It was marriage prohibited and de-
clared absolutely void.' 1t was contrary
to the declared public law, founded upon
motives Of public policy-a public policy at
firmed for more than a century; and one
upon which social order, public morality and
the best interest of both races depend. This
unmistakable policy of the Legislature
founded, think, in wisdom and the moral
development of both races, has been shown
by not only declaring marriages between
whites and negroes absolutely eoid, but by
prohibiting and Furnishing 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 the statutory enacrments, both
races might, by stepping across an imagin-
ary lire, bid defiance to the law by imme-
diately returning and insisting that the mar
rage celebrated in another State or country,
should be recognized as lawful, though de-
nounced by the public law of the domicile as
unlawful and absolutely void" No State
will permit its citizens to violate its laws by
such evasion. But the law of the domicile
will govern in such case, and when they re-
turn they will be subject to all its penalties,
as If such marriage had been celebrated with
in the State, whose public law they haye set
at defiance.
There is one American case which is di-
rectly opposed to the principles herein de-
clared, the facts of which are precisely the
same as in the case before us. 1t is the case
t Midway VS.. Needham 16 Mass, 157,
which was strongly relied on by the learned
counsellor the plaintiff in error as authority
to govern this case. But | think that case
is not supported by authority nor grounded
on any sound principles of law. That was
the case of marriage between white per-
son and negro. The parties were domi-
ciled in Massachusetts. whose laws at that
time prohibited such marriages. They went
into Rhode Island, where such marriages
were lawful, were there married, and re-
turned 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 an
other State to contract ouch marriage with
view to evade the laws of their own coun-
try, the marriage in the foreign country will,
nevertheless, be valid in the country in
which the parties lve.' In commenting on
this case the Lord Chancellor, in Brook V.
Brook, supra (2l9), says: II cannot think it
| is entitled to much weight, for the learned
Judge admitted that he was overruling the
| doctrine OF Huberus and other eminent jul
rists he relied on decisions in which the
forms only of celebrating the marriage in
the country of celebration and the country
of domicle were different !; and he took the
| distinction between cases lWLere CHe duSo-
lutte 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. l 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,
1 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 Gel
citrate 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, 81 also concur entirely with my
noble and learned friend that the American
decision OF Midway v. Needham cannot be
treated as proceeding on sound principles OF
law. The province or State of Massachus-
etts positively prohibited by its laws, as con.
trary to public policy, the marriage OF mu.
latto with white woman, land on the grounds
pointed out by Mr.. Story such marriage
ought certainly to have been held void in
Massachusetts, though celebrated in another
province where such marriages were law
full" With such condemnation from so higl