« ZurückWeiter »
authority, although greatly assisted by the reasoning of the learned judges who have taken part in those judgments.
"The statutory provisions relied upon by the respondent are found in part 2, chap. 8 of the R. S., entitled 'Of the domestic relations,' and especially in those articles which treat 'of husband and wife.' (Tit. 1, arts. 1 to 5, vol. 2, p. 138.) The statute does not define marriage or introduce a new formula for the relation, but treats it as existing, and declares it shall continue 'in this State' a civil contract (§1, chap. 8, tit. 1, art. 1, part 2), adopts the principles of the common law which renders invalid marriages between persons connected by certain lines of consanguinity (§ 3, id.), or who for want of age or understanding are incapable of consent, or who if capable have been induced to give it by fraud or force. (§4, id.) It then declares that no second marriage shall be contracted by any person during the lifetime of any former husband or wife of such person, unless the marriage with such former husband or wife shall have been dissolved for some cause other than the adultery of such person, and that every marriage contracted contrary to this provision shall be absolutely void. (§ 5, id.) These circumstances are restated as grounds of divorce, and it is enacted that '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.' (§ 49, id., art. 3.) As originally enacted the same statute (Tit. 1, supra, § 2) not only made the consent of parties essential, but limited the class to those 'capable in law of contracting,' and by its definition
excluded males under seventeen and females under fourteen years of age. Although this provision has been repealed, it throws some light upon the legislative intent in devising the system of laws concerning husband and wife. Conditions were annexed not only to the duration, but the creation of this relation, and the frequency with which it might be formed. Certain persons are declared capable, others incapable of forming it, and still others must submit to its dissolution. In one instance, as in the case before us, it cannot be contracted with another while the first co-contractor is living. It is obvious that this last condition is in the nature of a penalty. (Wait vs. Wait, 4 N. Y., 101; Com. vs. Lane, 113 Mass., 471.) It forms no part of the relief sought by the injured party, has no tendency toward compensation, nor is it imposed to that end. It is restraint or punishment. (West Cambridge vs. Lexington, 1 Pick., 506-508; Clark vs. Clark, 8 Cush., 386.) The fact of adultery is in the language of the statute an 'offense,' the person committing it 'a guilty person;' and when established by judgment he is said to be 'convicted.' He is, in consequence of it, deprived of a natural right or privilege which others enjoy. Moreover, for violating this statutory provision he is at least rendered liable to fine and imprisonment, as for a misdemeanor (2 R. S., part 4, chap. 1, tit. 6, p. 696, §§ 39, 40); if not for felony under the provisions of article 2 of the same statute. (2 R. S., 687.) The opinion of Walworth, Chancellor, went to that extent in Graves vs. Graves (2 Paige, 62); and although People vs. Hovey (5 Barb., 121) is to the contrary, the measure of the offense is not now important, and the last case holds to the misdemeanor. To that extent the law is plain. The real question is whether such a
statute furnishes an exception to the maxim 'Leges extra territorium non obligant.' It is not necessary to assert that the power of the legislature is so limited that no law passed by it would accompany a citizen into other countries and there control or modify the legal effect of his actions. Nor need we deny that it might be so framed as to affect his person and subject him in this State to punishment for its violation elsewhere, upon his return to the jurisdiction of our courts. On the contrary, it is to be regarded as settled law that all persons within its borders, whether citizens or aliens, are liable to be punished for any offense committed in this State against its laws; its citizens may also be punished for acts committed beyond its borders where there is a special provision of law declaring the act to be an offense, although committed out of the State. (Maxwell on Statutes, 119, 128; Cope vs. Doherty, 2 De G. & J., 624; 1 Burge's Col. & For. Laws, 196.) So, also, may an act committed out of the State be made to affect an individual, whether citizen or foreigner, when he comes within its borders and does some other act of which our laws take notice. Nor are examples of legislation effecting these results wanting. The statute defining acts which constitute treason (Tit. 1, pt. 4, ch. 1, p. 657, vol. 2, R. S., § 2) illustrates the first: It subjects the offender to punishment, whether the act prohibited is done 'in this State or elsewhere.' That against dueling is an example of the second: It makes one who by previous engagement fights a duel without the jurisdiction of this State, and in so doing inflicts a wound upon any person, 'whereof he shall die within this State,' and every second engaged in such duel, guilty of murder within this State. And still more in point, as illustrating its
manner of expression where the legislature intends to take cognizance of an act committed outside the limits of the State, or to impress upon the status of its citizen a condition of liability for such an act, are the provisions of the statute treating of offenses against 'the public peace and public morals.' (Tit. 5, pt. 4, ch. 1, art. 1, vol. 2, R. S.) After providing punishments for fighting duels, sending challenges, etc., in the most general terms, excluding no one from its condemnation, but, within the general maxim above quoted, having no extra-territorial force, comes a provision which by its special language attaches to the citizen, goes with him as he crosses the line of his State, and binds him with an obligation in what place soever he is. 'If,' it says (§ 5, id.), 'any inhabitant of this State shall leave the same for the purpose of eluding the operation' of these provisions, and 'shall give or receive such challenge' * without this State,
he shall be deemed guilty and subject to the like punishment as if the offense had been committed within this State. And we shall see later a provision similar to this, now forming part of the law relating to marriage in the State of Massachusetts. Another instance well shows by contrast the necessity of a declaration that the arm of the law shall be so extended. In proximity to the provisions I have quoted, in the next article (§ 8) is the statute 'of unlawful marriages,' defining bigamy and declaring its punishment; saying in general terms, 'every person having a husband or wife living who shall marry any other person' (with exceptions of no moment here) shall be adjudged guilty of bigamy, providing (§ 10) that 'an indictment may be found against any person for a second, third or other marriage herein prohibited, in the county in
which he shall be apprehended, and the same proceedings had thereon "as if the offense had been committed therein."' Yet there are no enlarging words affixing themselves to the person of the citizen as in the statute before quoted, or bringing within its purview 'a second or other marriage' contracted out of the State. And, therefore, on the trial of one who was indicted for bigamy, the second marriage having taken place in Canada, it was held, as early as 1855, by a court presided over by the late judge W. F. Allen, then a justice of the Supreme Court, that this statute had no application, that the second marriage was not an offense against the laws of this State, because they had no 'extra-territorial force.' (The People vs. Mosher, 2 Par. Cr. Rep., 195.) In like manner, if Barker Van Voorhis had on his return to this State after accomplishing his second marriage, been indicted under the statutes to which I have referred, either for bigamy or for doing a prohibited act, it would necessarily follow that the indictment would fail. Yet the words of the statute are general; in themselves they contain no limitation. But we have been referred to no case, and I think none can be found, where such general words have been interpreted so as to extend the action of a statute beyond the territorial authority of the legislature; and it is only by extending it that our courts can take cognizance of acts there committed. Of the third class, an example is afforded by our statute defining punishment for a second offense (§ 8, p. 699, vol. 2, R. S., pt. 4, ch. 1, tit. 7.) 'If any person,' it says, convicted of any offense punishable by imprisonment, etc., shall afterward be convicted of any offense, he shall be punished in a mode prescribed. It is evident that these words are general, and taken literally would apply