State v. . Kennedy , 76 N.C. 251 ( 1877 )

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 foreign country, to enter into a contract to be performed in the place of domicil if the contract is forbidden by the law of the place of domicil, as contrary to religion, or to morality, or to any of its fundamental institutions." In that case an Englishman casually met in Denmark the sister of his deceased wife and married her there. As such marriages were prohibited between English subjects it was held void.

A law like this of ours would be very idle if it could be avoided by merely stepping over an imaginary line.

There are cases to the contrary of this conclusion decided by Courts for which we have great respect. They are cited and the whole question is learnedly and earnestly discussed by 1 Bishop Mar. and Div., §§ 371, 389; Medway v. Needham, 16 Mass. 157; Stevenson v. Gray, 17 B. Mon. (Ky.) 193.

It seems to us however that when it is conceded as it is, that a State may by legislation extend her law prescribing incapacities for contracting marriage over her own citizens who contract marriage in other countries by whose law no such incapacities exist, as Massachusetts did after the decision in Medway v. Needham, the main question is conceded, and what remains is of little importance. Nothing remains but the question of legislative intent to be collected from the statute. About the intent in this case we have no doubt.

There is no error. Let this opinion be certified.

PER CURIAM. Judgment affirmed.