Marshall v. Marshall

48 How. Pr. 57, 4 Thomp. & Cook 449

Opinions

Westbrook, J.

— The pleadings in this cause admit that the plaintiff, prior to his alleged marriage with the defendant, had been married to one Elizabeth Marshall, who in the year 1858, by the judgment of this court, procured against the present plaintiff a judgment of divorce, for adultery committed by him. The decree in that cause contained the clause prescribed by the statutes of this state, permitting the said Elizabeth to marry again, but forbidding the present plaintiff from contracting a second marriage during the lifetime of the said Elizabeth. The pleadings further concede, that the parties to this action — they both then residing in this state—were, on the 20th day of September, 1866, married at Susquehanna in the state of Pennsylvania. After the marriage the parties returned to this state and resided therein. The defendant avers that the plaintiff’s object in going to Pennsylvania to be married was to avoid an indictment for bigamy, to which he would, as she alleges, have been liable if the marriage had been contracted here. The plaintiff, while denying this to have been his object, admits that the , ceremony was performed in the state of Pennsylvania, to which they went for the purpose of contracting the obligation of marriage; and declares that they “ at the time of the said intermarriage were, and from the time of the said intermarriage have been * * * and now are, inhabitants of this state.

After the parties to this suit had become, as it is alleged by the plaintiff, husband and wife, they lived together as such until about July, 1873, when the plaintiff, claiming the • rite of marriage to be a legal and valid one, commences this action to be relieved and free from its obligations on account, as he declares, of the adultery of the defendant.

The cause being at issue, a motion was made at the special term for issues to be tried by a jury, and denied; judge Donohue, who held the term, deciding, that a citizen of this state, who in contempt of its laws and its judicial decree, had contracted a second marriage, had no standing whatever in the court, for the purpose of being relieved from obligations which had been assumed contrary to the injunctions of such laws and such decree.

The plaintiff, appealing to this court from such order, presents two questions for adjudication: First. Was the marriage with the defendant a legal and valid marriage ? Second. If it was, has the plaintiff, who disobeyed the judgment and decree of a court of competent jurisdiction, any standing whatever in that court, when he comes therein and asks to be relieved from obligations which he has assumed contrary to its express command.

In the discussion of these questions it will be observed that both parties, at the time of the alleged marriage, were residents of this state, owing allegiance to its laws. When they left its territory for Pennsylvania and had the marriage ceremony there performed, it was (as must be assumed from their immediate return) with the intention to make this state their domicile; and although it may be true that the husband did not fear an “ indictment for bigamy,” if the ceremony was performed here, and which he had no reason to fear (People agt. Hovey, 5 Barb., 117), stiff, from the express averments of the complaint, it is evident that while residing here they went into another state, for the simple purpose of being united in marriage, with the intent of immediately returning and enjoying the protection of the laws of this commonwealth. And it must be further noticed that we are not — as this appeal is by the husband from an order made on the objection of the wife—to consider what legal remedy the defendant may have, if her allegation is true that she contracted the marriage in ignorance of the plaintiff’s condition as to the former one, but only and solely whether the plaintiff has contracted a legal marriage, which he, for any alleged misconduct of the defendant, may ask this court to annul.

The validity of a marriage like the present has been an open question in this state. In Cropsey agt. Ogden (11 N. Y., 228), Johnson, J., says: “ It is not necessary for us to consider what would have been the effect of a marriage celebrated out of this state. No such question was presented in the case.” In Haviland agt. Halstead (34 N. Y., 643), Davies, Ch. J., says: “ The question is not here, whether a marriage contracted in another state, and solemnized there between these parties, would be a legal and valid marriage here, but whether, in effect, this plaintiff is a party to an illegal and void contract by the laws of this state.” It is true that Smith, J. (pp. 646, 647), in the same case, says: “ It may be assumed that if a marriage had taken place between the parties in Hew Jersey, in pursuance of their contract, such marriage would have been recognized and treated as valid by the courts of this state, even although the parties had gone into Hew Jersey with intent to evade the laws of this state; ” but this doctrine has never been so held in this state. In support of this statement, the learned judge cites several Massachusetts cases, and Story on “ Conflict of Laws.” It will be shown hereafter that this is not now the law of Massachusetts, and that in the most recent edition of judge Story’s work a marriage like the present is declared to be void.

As the question, then, is as yet unadjudicated here, let us see what statutes we have for our guidance.

First. A marriage, contracted by a person situated as this plaintiff is, is forbidden. “Whenever a marriage shall be dissolved, pursuant to the provisions of this article, the complainant may marry again during the lifetime of the defendant; but no defendant convicted of adultery shall marry again until the death of the complainant ( Vol. 2 Edmond’s ed. Stat., p. 152, § 49).

Second. But not only is such a marriage forbidden, but another provision, same volume of statutes (p. 144), reiterating the forbidding, declares “ every marriage contracted in violation of the provisions of this section shall, except in the case provided for in the next section, be absolutely void.” The exception relates to a marriage contracted by a person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living during that time.”

I am aware that it is argued that our statutes are fully satisfied by a construction .which limits their prohibition and declaration to a second marriage contracted within this state, and that our legislature did not intend to pronounce one void which was celebrated beyond that limit. In answer to this position, it is insisted that however plausible the suggestion is, it involves consequences so grave that courts should never adopt it, and thereby impute an intent to our lawmakers to do that which the moral sense condemns. If the assumption ^ be true that the legislature of Hew York only intended to ‘ declare the second marriage void when the same took place within its state lines, then it must also be assumed that they intended to permit a party divorced for his or her adultery to go beyond these limits and marry again whilst the former husband or wife was living; and that this was done when its evident effect, as could be plainly seen, would be the destruction of the system of marriage and divorce which they had created. Will it be seriously argued that this was intended % That our legislature really designed, when either party to the marriage relation desired to sever that tie and contract another, to place every facility within easy reach so to do, and to tempt that party to sin to accomplish the purpose ? The divorced citizens of Hew York who have sought other states as a residence to dissolve a contract over which, for the causes assigned, our courts had no power, have certainly been subjected to a useless and unnecessary expense, if our laws are to be construed in accordance with this view of legislative intent. Why did not these persons commit an open act of adultery, and when freed in this state by a decree of divorce granted for that act, cross over into Hew Jersey or Pennsylvania, celebrate there a second marriage, and at once return to our state to enjoy its advantages ? This, it is argued, would be all legal and proper, and just what was intended. Can a construction which imputes such an intent be sound ? Its statement is the best answer.

But again. That portion of our statute, before quoted, which declares a second marriage “ absolutely void,” has been construed by the court of appeals in our state, in Cropsey agt. Ogden (11 N. Y., 228). In speaking of the first marriage, judge Johnson (page 233) says: “ It is not necessary that the prior marriage should have taken place in this state, or after the statute took effect. A marriage at any time and anywhere, answers the requirement of the statute.” And, again (page 234), he says: “ The prohibition there relates to the case of either party to a marriage, whenever and wherever contracted, both the parties to which are living, and prohibits either party to contract a second or other subsequent marriage during the lifetime of the other, except in certain cases specified.” If the legislature, in the sections of the statutes referred to, was speaking only of marriages in this state, then this decision seems unsound. There is no more limitation upon the place of the second marriage than there is upon that of the first, and the construction which makes the one broader than the other must add words which are now absent. Says the statute (2d vol. Edmonds' ed., p. 144, sec. 5): “Ho second or other subsequent marriage shall be contracted by any person during the lifetime of any former husband or wife of such person;” and if contracted, except in two specified cases— of which this is not one —it shall “ be absolutely void.” It would be difficult to use language more comprehensive : “ Ho second or other subsequent marriage shall be contracted ” — it covers all space, and reaches as far as the mandate could be made effectual. Having solemnly said that “Ho second or other subsequent marriage” should be contracted, and in no wise limited the force of the prohibitign, the interpolation of the words “within this state” is not justified by any sound rule of construction, and involves consequences too grave and serious to be tolerated.

We assume, then, that so far as it is possible for this state to protect itself against a marriage, such as this plaintiff has contracted, by the force of express legislation, it has so done; and if the courts of this sovereignty are bound to respect and hold valid that which its own legislature has declared “ absolutely void,’ and to so hold in favor of one of its own citizens, who, at the time he did the forbidden act, as such citizen owed to its laws allegiance and obedience, then it may well be doubted whether it is able to protect its own morals or the sanctities of the married state within its own limits. Nay, it is a matter of no doubt whatever, for if the principle contended for by the plaintiff in this cause is sound, then all marriages depend upon the will of the parties who have assumed these obligations, and new alliances can be again contracted, and those ties again sundered, as may suit the will or caprice of either. This result could never have been intended, and it is therefore held that our statute forbids every second marriage, and the limitation, if any there be, is one of power only. So far as it can reach it must reach and be applied.

We do not now discuss the question whether, if the plaintiff had removed to Pennsylvania, and become a bona fide citizen of that state, and whilst so residing there, had contracted marriage, and after such marriage had returned to this state, we should have been compelled to acknowledge the legality and validity of the act. That issue is not before us, and upon it no opinion is expressed. The courts of New York are now dealing with one of its own citizens, who has never renounced allegiance to its laws, and who, whilst residing here, crossed its boundary into a neighboring state for the purpose of entering into a contract, which should, despite our statute prohibition, be executed here. Such an act, declared “ absolutely void ” by our statutes, as we have shown, cannot, as is earnestly believed, possibly be held valid by our courts; and such a decision would be contrary to right reason and sound morals and to carefully considered cases.

It is true that, at one time, marriages such as has been contracted in the case before us have been held good in Massachusetts (Medway agt. Needham, 16 Mass., 157; West Cambridge agt. Lexington, 1 Pickering, 433); but it seems to have been so held when the statute of that state simply prohibited them, without declaring them void when contracted. Since those decisions were made, however, that state has declared, by express enactment, that marriages contracted by residents thereof, under the same circumstances with the present, in another state or country, shall be deemed void (R. S. of Mass., chap. 75, sec. 6) ; and the validity of that statute has been recognized by its courts (Sutton agt. Warren, 10 Metcalf, 451; Commonwealth agt. Hunt, 4 Cushing, 49. See opinion of Dewey, J., pp. 50 and 51). A well known Massachusetts author (Bishop), in his work on “ Marriage and Divorce,” whilst maintaining that marriages like the present, when simply forbidden, must be treated as valid, if legal in the state where contracted, also admits (sec. 369, vol. 1, 5th ed.) that ‘‘ this rule, like other common-law rules, is subject to the legislative control,” and that it has been so controlled “ in Massachusetts * * * since the contrary point was decided by its courts.” Of the soundness of this doctrine there can be, it seems to us, very little question, unless each state is prepared to surrender its own sovereignty, and place its laws regulating marriage relations among its own citizens entirely at the mercy of other states or countries.

New York has not only forbidden such a marriage as the plaintiff has contracted, but has pronounced it, as we have previously endeavored to show, “absolutely void.” The provisions of our statutes are more general and far reaching than those of Massachusetts. The latter simply make void a marriage contracted by a resident of that state in another in fraud and evasion of its prohibition, whilst ours has declared it “absolutely void,” without regard to the intent, and without regard to the locality of its celebration. If the Massachusetts statute is binding upon its courts, so is ours upon us; and if the cases decided in that state, prior to its present statute, have any authority here, surely those which sustain its more recent legislative enactment, making such marriages null and void, should cause our courts to follow our own statute declaration, and pronounce this marriage (as to the plaintiff, at least), in the words thereof, “ absolutely void.”

This principle has also been decided in the house of lords, in England, in Brooks agt. Brooks (7 Jurist, 422). In that case (page 423) Campbell, lord chancellor, said: “ There can b'e be no doubt of the general rule that a foreign marriage, valid according to the law of the country where it is celebrated, is good everywhere. But, my lords, while the forms of entering into the contract of marriage are to be regulated by the lex loci confoactus, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domioilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. Although the forms of celebrating the foreign marriage may be different from those required by the law of the country of domicile, the marriage would be good everywhere. But if the contract of marriage is such in essentials as to be contrary to the law of the country of domicile, and is declared void by that law,.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 celer brated. This qualification upon the rule that, a marriage-valid where celebrated is good everywhere, is to. be found in the writings of all eminent jurists who have discussed the subject.”

It is claimed, however, that this- opinion of lord Campbell, which was sustained by the house of lords of Great Britain, has no application to the case before.- us. It is submitted in reply, that it decides the very point at issue. The question in Brooks agt. Brooks was in reference to the validity of a marriage with a deceased wife's sister, contracted by British subjects in Denmark, who, after the rite had been performed in that country, returned to England to reside. Such a marriage, though pronounced incestuous by the law of England, was not so in Denmark, nor was it forbidden by the common law of civilized nations. It was because the law of England forbade it, that objection was made to its validity. The exact question 'to be determined was: if citizens leave their own country and contract a marriage abroad, such marriage being forbidden by the law of the country of their residence, but allowed .by the law of the country where it is contracted, and being celebrated with an intent to resume, and followed by an actual resumption of their old residence, what law governs the validity of the contract — that of the domicile, or of the place where it was consummated? The answer was, the law of the domicile controls. Is not this the identical question we are to answer % These parties resided in New York; they went to Pennsylvania — not to change their residence, but to be married and then return — which they did. If the lex domieilii and not the lex loei eonto'aetus controlled in Brooks agt. Brooks, it must also govern in the case before us. The mere fact that in the former ease the law of the domicile forbade the marriage on one ground, while in the latter it forbade and made it void on another, does not alter the result or shake the authority. The great point determined was that the lex domieilii of marriage follows citizens who go abroad to contract it, contemplating a return and actually returning. So far, too, as the case shows, Brooks agt. Brooks did not turn upon the fact that the law of England pronounced such a marriage, as was celebrated in that case, void, if parties went abroad to contract it in fraud of and to evade the English statute. Nor does it seem from the case as reported, that the English statute was specially framed to meet such a case; but it was put upon the square ground that when the home law in general terms declares the marriage void, that law follows the parties and nullifies the act when the parties return and resume their actual residence in their original country. It is submitted, then, that this important case covers every question before us, and is so reasonable and sound in its conclusions that it should be adopted and followed here. Ho other rule will enable a state to make its own laws of marriage and divorce effectual, and.place that relation beyond the legislation of others.

Brooks agt. Brooks, and the opinion of lord chancellor Campbell, is expressly approved in Story on Conflict of Laves (7th ed., § 124). In that work, after stating the rule laid down by the lord chancellor, that a foreign marriage is'good, if contrary to the non-essentials of the law of the domicile, provided it be in conformity with the regulations of the state where it is contracted, but not good if contrary to the essentials and declared void by the law of the domicile, though permitted and allowed by the lex looi contractus it is void. “ It seems to us that this qualification of the rule as to the general binding force of the law of the place of celebrating of marriage will enable us to steer clear of most of the embarrassments attending the question, and at the same time to reconcile most, if not all, of the conflict in the opinions of the learned jurists upon the subject. And, unless this qualification is allowed, there is produced a state of anarchy and confusion upon the subject of this fundamental relation of society, whereby any state may be compelled to recognize the perfect validity and binding force of polygamous marriages. For polygamy is probably recognized by the law of nations, if the majority of the people of the earth «are allowed to determine that question by an appeal to the past history of the race. And if the practice of the Hebrews were conclusive upon the matter, that will be found to bear in the same direction.”

It is scarcely necessary to pursue this discussion. We freely admit that learned publicists and reported cases differ. This, state, where the question has never been decided, is free to choose the rule which, in its view, is the sounder in reason and. most conducive to public morals. The effect necessarily resulting from a counter opinion requires us to hold that our legislature intended not only to prohibit but to declare void such a marriage as we have now before us. The later cases, and the later editions of Bishop and Story, hold that a state can declare it void. Unless we are prepared to say that adultery has no effect upon the right of the guilty party again to marry, when divorce has been granted for that sin, and in so holding to tempt parties to do the act, that they may contract a second marriage, we should adjudge these parties not legally husband .and wife, and thus adopt that as the law of all similar cases. It is the alleged wife who makes the point, and she cannot complain if we hold it well taken. If there be innocent parties whom this decision will affect, the law affords them some redress in other forms. It is better, far better, that a few should suffer rather than that a principle should be held which will disturb many a home, and leave many a wife without a husband, whilst he, despite the sin and the forbidding of our laws, is legally married to another, and to him, for a short time at least, a more congenial companion.

Apart, however, from the question discussed, we think that the decision of the special term was also right, for the reason there assigned. The plaintiff was forbidden, by the judgment of this court, pronounced when divorcing him from his former wife, from- contracting a second marriage during her life. That command he has disobeyed; and now he asks the identical court which forbade the act to absolve him from the very contract which" he perfected contrary to its mandate. If he has incurred obligations to another by his disobedience to the ¡court, he should be allowed to relieve himself as best he can. This court has power, as was determined "in Brinkley agt. Brinkley (47 N. Y., 40), to prevent any person in contempt from taking “ any aggressive proceedings against his adversary.” It may strike out an answer, and thus deprive him of a trial. This "plaintiff, confessedly in contempt, takes an aggressive step against another, and founds the fight to .proceed upon an act which the court had forbidden. If issues, by striking out an answer, may be refused to a defendant who sets at naught the authority of the court, 'they surely may be to a plaintiff who, in asking those issues,, tells this tribunal that its command is impotent and its judgment a nullity.

I am aware that the question in Brinkley agt. Brinkley arose out of a proceeding in that cause, and that that case does not in terms cover one when a party in contempt seeks to bring another suit. It does, however, decide that, even though a party may be authorized by law to bring or defend a suit, his proceedings therein may be stayed if he is in contempt. The statute which gives the right to a suitor in court to bring or defend an action is the same which authorizes him to proceed in a second. Concede the power of the court in any case to strike out a pleading, because of a contempt committed by that party toward the court, and it necessarily follows that the only restraint upon the power of the court toward that party is the exercise of a sound discretion. ISTo greater authority is exercised in the refusal to allow a person in contempt to bring or defend a second suit than in the refusal to permit the first to proceed or its defense to be heard. The one is as great a violation of an apparent statute right as the other. The penalties of contempt were originally prescribed by the courts, and if a precedent for the power exercised in this case cannot be found in the records of the past, it can create one now for this party and this occasion, and thus make a precedent for the future.

It would not, it is fully conceded, be the exercise of a sound judicial discretion to hold that a party in contempt has no -right to bring any action in this court; but whilst conceding this, it is maintained with equal earnestness that when a party seeks relief from an act which he has been forbidden to do, the court to which such application is addressed has a right to withhold the remedy asked. This, we submit, is the exercise of a sound judicial discretion, and is neither arbitrary nor unreasonable. Mr. Marshall had been forbidden, by the solemn judgment of this court, from. contracting a second marriage. This suit is founded upon his disobedience of the command. By it we are informed that our mandate has been disregarded and our power defied; and whilst communicating this information we are told that that which we have fobidden to be done is valid and legal despite the forbidding, and that we are compelled to use the power which the law has conferred upon us to aid him in the offense he has committed.

■We cannot consent thus to stultify ourselves. We cannot so hold; and we decide that this is a proper case to refuse the relief sought, and we now place such a refusal among the penalties of such contempts, if it néver has been before so adjudicated.

The order of the special term appealed from should be affirmed, with costs.