51 Pa. Super. 564 | Pa. Super. Ct. | 1912
Opinion by
The parties to this proceeding in divorce are “of kin
The only question in this case is whether the marriage, which was lawful in the state of Delaware in which it was celebrated, is rendered void, for the reason that the parties, being domiciled in Pennsylvania, and knowing that the statute of this state prohibited their being joined in marriage, they left this state for the purpose of being married in the state of Delaware, the law of which permitted such marriage, and shortly after the ceremony returned to their Pennsylvania domicile and there continued to reside. The case is an important one to the public, as well as to these parties and the two children whom they have brought into the world. Had either of these parties died this marriage could not have been
Marriage is treated by all civilized nations as a peculiar and favored contract. The general principle certainly is, that between persons sui juris, marriage is to be decided by the law of the place where it is celebrated. If valid there it is valid everywhere: Story on Conflict of Laws, sec. 113; Patterson v. Gaines, 47 U. S. 550; Phillips v. Gregg, 10 Watts, 158; Van Storch v. Griffin, 71 Pa. 240.
“This rule was shown, by the foreign authorities referred to by Sir Edward Simpson, in 1752, in the case of Schrimshire v. Schrimshire to be the law and practice in all civilized countries, by common consent and general adoption. It is a part of the jus gentium of Christian Europe, and infinite mischief and confusion would ensue with respect to legitimacy, succession, and other rights, if the validity of the marriage contract was not to be tested by the laws of the country where it was made:” 2 Kent’s Commentaries, 92. The learned author' cites many authorities in support of his text, among them the English cases sustaining the validity of the marriage in Scotland of minors who ran away, without the consent of his or her guardian, from an English domicile, to avoid the English law, which prohibited the marriage, and returned to the English domicile after the marriage. The
Within the limits imposed by the constitution of the United States: “A state may prohibit the operation of all foreign laws, and the rights growing out of them, within its own territories. It may prohibit some foreign laws, and it may admit the operation of others. It may recognize and modify and qualify some foreign laws; it may enlarge or give universal effect to others. It may inter-
The leading case in Pennsylvania in which this second exception to the general rule has been recognized and applied, and a statute of the state given an exterritorial effect, is Stull’s Est., 183 Pa. 625. The court in that case construed the Act of March 13, 1815, P. L. 286, which forbids the husband or wife who has been guilty of the crime of adultery to marry the person with whom the said crime was committed, during the life of the former husband or wife. The court held that the language of the statute clearly indicated that the legislative intention was to forbid the marriage relation to be contracted; that it was aimed at the existence of the marriage state between the parties. Mr. Justice Green, who spoke for the court, said: “A. personal incapacity to marry is imposed. The necessary meaning of this language is that they shall not marry at all, in any circumstances, or at any time, or any place, so long as the injured party is living. So far as the purpose and meaning of this statute are concerned it is of no consequence where such subsequent prohibited marriage takes place. The relation itself is absolutely prohibited, and hence is within the operative words of the statute, without any reference as to where the marriage occurs.” The court further held that the prohibition of the statute, there involved, embodied a distinctive state policy as affecting the morals and good order of society. The parties in that case were subject to the prohibition and were domiciled in Pennsylvania, they went into another state where they might lawfully be married and were there married and immediately returned to their Pennsylvania domicile. The marriage was judged
The cases which have arisen under the second branch of this exception, where the statute of a state prohibits the marriage of persons related in a certain degree upon the ground, in the statute expressed, that such marriages are contrary to the law of God, or that they are immoral, are not numerous, but in England they led to a very definite conclusion. The most important of those cases is Brook v. Brook, 9 House of Lords, 193. A widower and the sister of his deceased wife, both British subjects and having their domicile in England, were married while in Denmark, where their marriage was lawful, and returned
Where a state forbids marriage between certain persons, or classes of persons, merely upon the ground of expediency and not upon moral grounds, or such as would tend to outrage the principles and feelings of all civilized nations, the general rule as to the validity of foreign marriages prevails: Medway v. Needham, 16 Mass. 157; Putnam v. Putnam, 25 Mass. 433; Stevenson v. Gray, 56 Ky. 193, and the Scotch marriage cases of English minors, which have been in England held valid. These general principles are recognized through all the cases.
The marriage relation between first cousins was entirely lawful under our common law and in the countries from which that law was derived, and no statute had in any manner changed.that law prior to the Act of June 24, 1901, P. L. 597. We must, therefore, consider the provisions of that statute, in the light of the principles herein-before stated, in determining whether or not the marriage of the parties to this proceeding, lawfully contracted in the state of Delaware, must be held void in Pennsylvania. The first section of the statute enacts: “That from and after the first day of January Anno Domini one thousand nine hundred and two, it shall be unlawful for any male
The same reasons, founded upon the language of the statute, lead us to the conclusion that this act cannot be taken as a declaration that the marriage status between first cousins is either contrary to the Divine law or immoral. The statute does not expressly declare that the legislative action is taken for either of said reasons, and all the implications arising from its terms must lead us to a contrary conclusion. We are not warranted in assuming that it was the intention of the lawmaking power to assert, by this statute, that a marriage between first cousins, which would be entirely commendable and proper on December 31, 1901, would be on January 2, 1902, a thing so immoral as to offend against the prevailing sense of decency among the people of the state. Had the statute provided that marriages between first cousins should be lawful from the first day of January to the first day of July in each year and unlawful and void from the first day of July until January following, without expressing any purpose for the enactment, it certainly could not have been successfully asserted that marriages during the prohibited period must be held, judicially, to be contrary to the Divine law and immoral. Yet such a statute could
The decree is affirmed and the appeal dismissed, at cost of the appellant.
October 29, 1912, appeal refused by Supreme Court.