On December 16, 1873 the Los Angeles Evening Express
published an article describing a man in San Bernardino who, because of a loophole in the law, was legally allowed to remain married to two women, despite the efforts of townsfolk to force him to divorce at least one of his wives.
The man, Mr. Oades, was originally married to an English woman with whom he had two children. While living in New Zealand his house was attacked by a Maori tribe in his absence. He believed his wife to have been killed, and so he moved to America where, after a number of years, he remarried. However, his first wife was not dead, merely carried off, and she eventually escaped her captors, found Oades, and moved back in with him -- and his second wife. Thereupon, his neighbors filed criminal charges against Oades for "open and notorious cohabitation and adultery." The case, People v. Oades
, was tried in the County Court of San Bernardino.
In his defense, Oades did not deny living with two wives, but he pointed out that the California Civil Code specifically stated that a second marriage was legal if the "former husband or wife was absent and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage." This had been the case, and the judge was forced to agree that Oades' situation did satisfy the letter of the law.
Subsequent efforts to petition the legislature to dissolve one of Oades' marriages were foiled when Oades pointed out that the twentieth section of the fourth article of the constitution of California expressly provided that "no divorce shall be granted by the legislature." Nor was it possible to call a constitutional convention to annul one of Oades' marriages since, as Oades also pointed out, the tenth section of the first article of the United States Constitution banned any state from passing a law "impairing the obligation of contracts." Marriage, Oades argued, was a form of contract.
News of Oades' case caused an uproar in California. Many others papers throughout the nation, such as The New York Times
, subsequently reported about it. However, the case was fictitious, as the Evening Express
revealed two weeks later, confessing that, "The case was artfully worked up by the author, and by a process of reductio ad absurdum
, he showed a defect in the codes which could not have been so strikingly illustrated in any other way."
Unfortunately, the retraction was not as widely publicized as the original story, and so the case made its way as fact into a number of legal textbooks including the American Law Review
(1886) and Readings in American Legal History
Links and References
- "Two Wives at Once." (Jan 26, 1874). The New York Times.
- Walzer, Stuart. (Summer/Fall 1991). "A Strange Story". Western Legal History. 4(2): 265-273.