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to 'any person' committing an offense in or out of the State. Applying the mode of construction contended for by the respondent, nothing more would be necessary. But the legislature show that such is not its meaning. By section 10 they declare that 'every person who shall have been convicted in any of the United States, or in any district or territory thereof, or in any foreign country, of an offense which, if committed within this State would,' etc., 'shall upon conviction of any subsequent offense committed within this State, be subject' to punishment in the same manner and to the same extent 'as if the first conviction had taken place in a court of this State.' Thus by implication is expressed the opinion of the legislature that the general words of the eighth section, supra, would not meet the case provided for in the tenth section. In Massachusetts, after a statute extending the prohibition against a second marriage under circumstances before stated to inhabitants of that State going out of it to evade the law, it was held that if in any event the foreign marriage could be invalidated, it could not be without proof of the intent made necessary by statute. Nor without it could there be a conviction for polygamy. (Com. vs. Lane, 113 Mass., 458.) A similar distinction exists under the English law. In 1 Hale's P. C., 662, the case is stated of a woman who married in England and afterward married abroad during her husband's life. It was held that she was not indictable under the statute of the former country for bigamy, for the offense was committed out of the kingdom, and the act did not in express terms extend its prohibition to subjects abroad. It is otherwise, however, in regard to certain offenses committed in other countries by Englishmen against their govern
ment, viz. Murder and slave-trading, because the statutes have so provided. (Warrender vs. Warrender, supra.) Now if the Criminal Court has no jurisdiction to punish the act when committed out of the State, how has the civil court jurisdiction to prohibit the doing of the act out of the State? The consequences are the same in either case, and are prescribed by the same statute. Whether a man is punished by fine and imprisonment, or by the disgrace of himself and the woman he married-the bastardy of his children-is a difference in degree only. The severer punishment is in the last alternative. Can the court imply the power to inflict it? Can it exist unless given by express language? I think not.
"The statute does not in terms prohibit a second marriage in another State, and it should not be extended by construction. The mode of construction contended for by the respondent, if applied to the statutes of treason and dueling and the punishment of second offenses, would make useless those provisions which relate to the conduct of a citizen out of the State and the commission of crime in this State by one convicted in another State. Can they be disregarded, or the legislature charged with useless enactments? On the contrary, we must give weight and meaning to them; to their presence in those laws and their absence in the one of marriages. The difference is essential, and the varying language cannot be disregarded. There is first a prohibition broad as in the act before us, wide enough to take in all persons within the State, and prohibiting certain acts—a personal prohibition. Not content with that, the statutes go further and extend the same consequences to those acts when committed out of the State. These provisions are lacking
in the law before us. When, therefore, we consider the legislation of this State before referred to, and the general rules regulating the territorial force of statutes, we cannot but regard the omission to provide by law for cases like the present as intentional, but if not, in the language of Lord Ellenborough, in Rex vs. Skone (6 East., 518), 'we can only say of the legislature quod voluit non dixit.' This view is sustained by the course of decision and legislation in Massachusetts. In Medway vs. Needham (supra) the plaintiff sued for the support of certain paupers-one Coffee and his wifealleged to have their legal settlement with the defendant. The only question on the trial, or the subsequent hearing before the whole court, respected the validity of his marriage. He was a mulatto and his supposed wife a white woman. They were inhabitants and residents of Massachusetts at the time of their marriage, and the statement is that 'as the laws of the province at that time prohibited all such marriages, they went into the neighboring province of Rhode Island and were there married according to the laws of that province,' and returned immediately to their home. Both courts held the marriage good. The statute regulating marriages in Massachusetts was at that time like our own, but the court placed their decision upon the general principle that a marriage good according to the laws of the country where it is entered into shall be valid in any other country, Parker, Ch. J., saying: "This principle is considered so essential that even where it appears that the parties went into another State to evade the law of their own country, the marriage in the foreign State shall be valid in the country where the parties live;' and, referring to the statute which declares second marriages absolutely
void, says: "They are only void if contracted within this State.' West Cambridge vs. Lexington (1 Pick., 506) involved the rights of infant children of Samuel Bemis, paupers, to public support in that State. The question turned upon the validity of his second marriage; the first had been dissolved for his adultery. Afterward and while his former wife was living, he married in New Hampshire, and the children were from that union. The court held that if the marriage had been contracted in Massachusetts, it would be unlawful and void, but that the laws of no country have force outside of its own jurisdiction, and therefore one, who by reason of his offense against it is disabled from contracting another marriage, may lawfully marry again in a State where no such disability is attached to the offense; and further, having a right to marry there, he could not while there violate the statutes of Massachusetts against polygamy. It was therefore held that the children were legitimate, their settlement to be where that of their father was, and the town entitled to recover for their support. The circumstances of Putnam vs. Putnam (8 Pick., 433) are singularly like those before us; and it was held that although the second marriage was a clear case of evasion of the laws of the Commonwealth, it was valid upon the general rule referred to in the cases already cited. The court also say: 'If it shall be found inconvenient or repugnant to sound principle, it may be expected that the legislature will explicitly enact that marriages contracted within another State, which if entered into here would be void, shall have no force within this Commonwealth.' There is thus recognized a necessity discussed earlier in this opinion, for express legislation, if the citizen is to be held bound by the laws of
his State for acts performed by him outside its limits. Legislation to this end was afterward had. (Rev. Stat. of Mass., ch. 75, § 6; Gen. Stat., ch. 106, § 6.) Referring to provisions of the act making void marriages between certain parties, or by persons in prescribed conditions or under certain circumstances, it declares, 'where persons resident in this State, in order to evade the preceding provisions and with an intention of returning to reside in this State, go into another State or country and there have their marriage solemnized, and afterward return and reside here, the marriage shall be deemed void in this State.' It is not necessary to consider the extent or scope of this statute. It has been discussed by the courts of that State, and is said by Dewey, J., in Com. vs. Hunt (4 Cush., 49), 'to have been intended to meet this class of cases, that is, of individuals fraudulently attempting to evade the law of Massachusetts, so far as respects persons divorced for the crime of adultery, and to declare such marriages by the guilty party to be void in this Commonwealth;' or as Hubbard, J., says, in Sutton vs. Warren (10 Metc., 453): "The only object of this provision is, as stated by the commissioners in their report, to enforce the observance of our own laws upon our own citizens, and not suffer them to violate regulations founded in a just regard to good morals and sound policy.' We have no law in relation to this subject similar to that of Massachusetts or our statutes before cited in reference to dueling and treason. There is nothing in the statute to indicate an intention of the legislature to reach beyond the State to inflict a penalty. Nor can I discover an intent so to impress the citizen with the prohibition as to make an act, which is innocent and valid where performed, an offense