It is urged that the marriage, being lawful in China where entered into (as appears from the certificate of the Chinese consul at Honolulu submitted to the Secretary of Labor on the appeal), is lawful here and everywhere, and that the immigrant, born of that marriage and being legitimate there, must be regarded as legitimate here; also, that if the immigrant is legitimate by the law of his domicile, it is immaterial how he came to be so; also, that in applying considerations of policy against polygamy, the court should look no further than the immediate parties, father and mother, and should not look to those one degree removed, who are innocent parties.

Of course, the inspector's decision would be in error in broadly characterizing as illegitimate the issue of such a marriage valid in China. But in the opinion of the court the effect of the decision is esentially sound; for an exception to the rule of recognition of a foreign marriage arises when the marriage contravenes the spirit and policy of our laws and institutions. This polygamous marriage in China is within such exception, and the immigrant here whose status is derived from this marriage must be governed accordingly.

Story says:

"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. The most prominent, if not the only known exceptions to the rule, are those marriages involving polygamy and incest; those positively prohibited by the public laws of a country from motives of policy; and those celebrated in foreign countries by subjects, entitling themselves under special circumstances to the benefit of the laws of their own country. In respect to the first excep

tion, that of marriages involving polygamy and incest, Christianity is understood to prohibit polygamy and incest, and therefore no Christian country would recognize polygamy, or incestuous marriages." Conflict of Laws, 7th ed.. secs. 113, 113 a, 113 b (and note 3), 114. See also secs. 89, 114 d.

Minor says:

"If one having a consort living and undivorced marries again, though the subsequent marriage should take place in a barbarous state where marriages are valid, it will not be upheld in any civilized country." Conflict of Laws, sec.

75.

Wharton says:

"It is agreed that an act valid when done by a person in his own country is to be regarded as valid in foreign countries, even though in such foreign countries he is treated as incapable of performing such act. At the same

time a status held by the lex fori to be immoral, or to contravene public policy, will not be enforced although established by a foreign state in conformity with its own jurisprudence." Conflict of Laws, 3d ed., sec. 125. See also Id., secs. 126, 130, 131 a, 175.

Judge Cooley says:

"Polygamous and incestuous marriages celebrated in countries where they are permitted, are nevertheless treated as invalid here, because they are condemned by the common voice of civilized nations, which establishes a common law forbidding them." Hutchins v. Kimmell, 31 Mich., 126, 134.

To the same effect are: Commonwealth v. Graham, 31 N. E. 706, 707 (Mass.), Field, C. J.; Ross v. Ross, 129 Mass. 243, 247, Gray, C. J.; Commonwealth v. Lane, 113 Mass. 458, 463, Gray, C. J.; True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164, 166; Pennegar v. State, 10 S. W. 305, 306-307 (Tenn.); State v. Ross, 76 N. C. 242, 22 Am. Rep. 678, 680-681; Jackson v. Jackson, 33 Atl. 317, 318-319 (Md.); Van Voorhis v. Brintnall, 88 N. Y. 18, 26; Succession of Gabisso, 44 So. 438, 441 (La.), and Campbell v. Crompton, 10 Fed. 417, 424, Wallace J.; State v. Tutty, 41 Fed. 753, 759-760; United States v. Rodgers, 109 Fed. 886, 887. See State v. Ross, 76 N. C. 242, 22 Am. Rep. 678, 682.

Wharton on Conflict of Laws, 3d ed., sec. 250 a, extends to the offspring of a polygamous marriage the principle above applied by Story and others to such marriage itself:

"As a general principle, the issue of a marriage valid

where celebrated, will be deemed legitimate for the purposes in question, though the marriage would have been invalid and the children therefore illegitimate, tested by the lex rei sitae or lex domicilii decedentis. The only exceptions to this rule are cases in which the marriage itself, for some reason, comes within an exception to the general rule that a marriage valid where celebrated is valid everywhere." This rule is applied in Fenton v. Livingstone, 5 Jur. N. S. 1183, 3 Macq. H. L. Cas. 497, 556; 3 Wharton, Conflict of 497, Laws, 3d ed., p. 547, n. 4.

The language of Robertson, C. J., in Sneed v Ewing, 5 J. J. Marsh. (Ky.) 460, 489, 22 Am. Dec. 41, 68, is pertinent:

"Counsel

insist that as Mrs. Ewing was legitimate in Kentucky, she could not have been illegitimate in Indiana or elsewhere. This argument is inconclusive when applied to the facts in this case. As issue is one of the objects and fruits of marriage, and as it is a general rule that the incidents follow the law of marriage itself, the argument would have been more formidable if it had been shown that the marriage in this case had been legal. But, even then, it would not have been conclusive, for although marriage, like other civil contracts, must be regulated by the lex loci contractus, it is not every marriage which may be valid by the law of the place where it was consummated, that will be recognized as legal everywhere else. Every sovereign state is the conservator of its own morals, and may nullify incestuous or polygamous contracts."

Any application of the rule of universal recognition of a foreign marriage cannot be tolerated which would give to men who marry in countries where polygamy is lawful, as it is conceded that it was lawful in China, privileges which are denied to our own citizens. Our own citizens do not here gain any privileges, but quite the contrary, by virtue of a polygamous marriage, either with respect to their polygamous wives or their children by such wives, and certainly, therefore no subject of a foreign country may come here and by virtue of a polygamous marriage valid there

be free to bring with him his polygamous wife and her children, the fruits of such polygamous marriage. This immigrant must come into the country on his own merits and not by virtue of a relation which we recognize as valid in China but disapprove as contrary to our own institutions.

The distinction here is suggested by Lord Justice Turner in Hope v. Hope, 8 De Gex, M. & G., 731, 3 Beale's Cases on Conflict of Laws, 468, 471:

"When the courts of one country are called upon to enforce contracts entered into in another country, the question to be considered is not merely whether the contract sought to be enforced is valid according to the laws of the country in which it is entered into, but whether it is consistent with the laws and policy of the country in which it is sought to be enforced."

See In re Bethell, 38 Ch. D. 220, as summarized in 3 Beale's Cases on Conflict of Laws, 31, note. That this distinction is valid when applied to status as well as when applied to contracts, see the decision of Judge Ware in the case of Polydore v. Prince, 1 Ware 402, 19 Fed. Cas. 950, No. 11,257, 3 Beale's Cases on Conflict of Laws 2-7, 9. The argument in that case is similar to the argument in the present case. 3 Beale's Cases, 2-3. See also Somerset v. Stewart, Lofft, 1, 3 Beale's Cases on Conflict of Laws, 1, Mansfield C. J., holding that the status of slavery, though then recognized / as legal in Virginia, "is so odious that nothing can be suffered to support it [in England] but positive law."

And so the court in Van Matre v. Sankey, 148 Ill. 536, 3 Beale's Cases on Conflict of Laws, 53, 55, says: "The status of appellee having been established under and by virtue of the lex domicilii, is to be recognized and upheld in every other State, unless such status or the rights flowing therefrom are inconsistent with or opposed to the laws and policy of the State where it is sought to be availed of." See also Story, Conflict of Laws, sec. 87; Shick v. Howe, 137 Iowa, 249, 114 N. W. 916; Finley v. Brown, 122 Tenn. 316, 123 S. W. 359, 364; In re Williams' Estate, 102 Cal. 70, 82, 36

Pac. 407, 410, and, as to the general basis of public policy, Black, Judicial Precedents, 163.

In view of the foregoing authorities, the regulations of the bureau of immigration governing the admission of Chinese, in providing for the admission of the "lawful wife and minor children," may be taken to have intended the word "lawful" to apply to the minor children as well as to the wife, and to have intended that word to mean such children as are the fruits of a marriage which it is our policy to recognize. Rule 2; Rule 9 (a); see also Rule 9 (b).

The policy above suggested disposes of the following argument of counsel, even though it be an argument plausible and of merit:

"At the time of its inception the marriage in China was not recognized as valid here because of a former marriage here still binding, but as soon as the former marriage is dissolved the cause of the failure to recognize here the second marriage is removed. Immediately upon the granting of the divorce the husband returns to his status of a single man and the courts of this jurisdiction are in a position to recognize the marriage in China, which had not been recognized before because of the prior undissolved marriage."

The Hawaiian case of Kekula v. Pioeiwa, 4 Haw. 292, throws light on the question raised by the argument just quoted, if not on the question of how far the public policy above expressed by Justice Story and other authorities may be extended. In that case a daughter was born of parents who were cohabiting pending the existence of the father's marriage to another woman.. On the death of the lawful wife, the father and mother were married, and the legitimacy of the daughter was claimed under a statute reading, "All children born out of wedlock are hereby declarel legitimate on the marriage of the parents with each other, and are entitled to the same rights as those born in wedlock." This claim was overruled, the court holding that "any other construction of the act would be subversive of good morals."