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


monwealth. Not only is 1t Of unusual To-
cal interest, but the determination Of the
questions therein presented has been looked
forward to as authority by the courts OF 9TH
er States where similar cases are now pend
ing. All of the other judges fully concurred
with Judge Christian.
The plaintiff in errcr was represented by
J. NJ. Quarles, Esq, Of this city, and the
Commonwealth by Attorney General Field
Andrew Kinney Us. the Commonwealth of
Hirgini0.-The plaintiff in error was in
dicted in the County Court of Augusta Coun-
ty for lewdly assOciating and co-habitine
with Mahala Miller. He was found guilty
and a fine assessed against him to tue amount
of $4,000. 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 excep-
tions 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 defend
ant, Andrew Kinney. and a certain Mahafa
Miller, on the LIST day of January, 1877, and
from that time to the 9th day of August,
1877, in the county of Augusta and State OF
Virginia, did lipe and associate together as
man and aoife that said Andrew Kinney is
negro, and said Mahala Miller white
woman, and that in November. 1874, they,
as citizens of the State of Virginia, regular
ly 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 Col
umbia on the 4th day of November. 1874, in
accordance with the laws Of said District.
Whereupon, the counsel for the defen-
dant moved the Court to instruct the jury as
follows, that is to say that under the cir
cumstance proven the marriage of Andrew
Kinney and Mahala Miller in the District of
Columbian the 4th day OF November, 1874,
is valid and bar to this prosecution, and
that they must find verdict OF acquittal,
But the Court refused to give the said in
struction to the jury, and instructed the ju-
ry as follows: That the said marriage of
the defendant and said Mahala Miller was,
under the circumstances proven, but vain
and futile attempt to evade the laws of Vir-
ginia, and override her well known public
policy. and is therefore no bar to this prose-
cutiOn to which opinion and action OF the
Court, in refusing the said instruction asked
for by tie counsel for the defendant, and in
giving the said instruction given by the
Court, the defendant, by his counsel, ex-
cepts, and tenders this his bill OF exceptions,
which ne prays may be signed, sealed and
made 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 celebated
in the District of Columbia, sin accordance
with the laws of said DISTRICT as certified
in the certificate Of facts, is bar to this
prosecution. 1t is conceded that marriage
in this state between white person and a
negro is void.
1t is not only prohibited by the statute
law, but penalties are imposed for its viola :
ton. The LIST section of chapter los, code
1873, provides that, Sail marriages between
white person and negro and all mar
riages which are prohibited by law on ac-
count of either Of the parties having for
mer wife or husband then living shall be ab-
sotutety void without any decree of divorce
or other legal process" In the same Sec
ton other marriages prohibited by law there
in mentioned are voidable only-that is, de-
clared to be UOad only from the time they
shall be SO declared by decree of divorce or
nullity. These are cases Of marriages with
in 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 3rd section OF
chapter 1872. which denounces certain pen
alties against marriages of parties within the
prescribed degrees of consanguinity or affin-
ity. But marriage between q white person
and negro is declared by statute to be ab-
solately cold without any decree of divorce
or other legal process. If therefore the mar
rage had been celebrated in this State be-
tween Andrew Kinney, who is negro, and
Mahala Miller, who is white woman, no
matter by what ceremonies or solemnlties,
such marriage would have been the merest
nullity, and the parties must have been re-
garded under our laws, as lewdly associat-
ing and cobabiting 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 be-
tween white persons and negroes are not
and put the parties on any different footing
when arraigned before our tribunals for a
violation of the laws of this State 1t is adj
mitted that Andrew Kinney and Mallala
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 domcle. 1t is plain to be gathered
from the whole record, if not, indeed, adj
mitted, that these parties knowing they could
not enter into valid marriage contract, in
this State, wentto the city OF Washington for
the purpose OF evading the statute law OF
this State; were there married and in few
days returned TO this State. They never
changed nor designed to change their domi-
csle. 1t 'oos here then 1t IS here noso.
The important question and one of first
importance iii this case is: Does the mar
rage in the District of Columbia, made in
fraudens legis Of this State, protect the par
ties in prosecution in this State for VIC
lation OF its penal laws In this most impor-
| tant and vital branch of criminal jurispru
dence, affecting the moral well being and
social order of this State Must the lea locl
contractus or the lea domicihi prevail
| There can be no doubt as to the power oil
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 mar
rying. The right to regulate the institution
of marriage, to classify the parties and per
sons who may lawfully marry, to dissolve
the relation BY divorce and to impose sucf
restraints upon the relation as the laws o.
God, and. the laws of propriety, morality
and social order demand, has been exercised
by all civilized governments in all ages O.
1 the world.
1t is insisted, however. by the learned
counsel for the plaintiff in error in the in
genious and able argument which he adj
dressed to this Court, that, conceding TIN
power of every State and country to pas
such laws, yet they never act ert,0-territors
| ally, but must be confined with rare excep
tions to such marriages as are contracted
and contaminated within the State wher'
they are prohibited.
He invokes for his client in this case, thu
rule laid down by jurists and text writer
that "a marriage valid where celebrated, il
good everywhere. - This is undoubtedly thu
general rnle. Bot there are certain excep
tioas to this general rule, and while in it
application and the affirmance of certain ex
ceptions, there was for long time mucl
confusion in the authorities and conflict ir
the cases, think it may now be affir met
that there are exceptions to this general rule
v,,,l1 o,toh1;sho1 and ifot iuol u