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(7.) It has been a point much discussed in the English courts, whether a clandestine marriage in Scotland, of English parties, who resided in England, and resorted to Scotland with an intent to evade the operation of the English Marriage Act, could be received and considered in England as valid. Though we may not, in this country, have at present any great concern with that question, the principle is nevertheless extremely important in the study of the general jurisprudence applicable to the marriage contract.
As the law of marriage is a part of the jus gentium, the general rule undoubtedly is, that a marriage, valid or void by the law of the place where it is celebrated, is valid or void everywhere. (d) An exception to this rule is stated by Huberus, (e) who maintains
the clerks of the court of ordinary, or instead thereof, without a publication of the bans of marriage three times in some public place of worship, subjects the party to a penalty in Georgia. Prince's Dig. 1837, pp. 231, 649. Hotchkiss's Dig. 1845, p. 329.2
(d) Scrimshire v. Scrimshire, 2 Hagg. Cons. 407, 419. Harford v. Morris, 2 Hagg. Cons. 423-436. Lord Tenterden, in Lacon v. Higgins, 3 Starkie N. P. 178. But it is not universally true, without exception, that a marriage not valid by the lex loci, is also invalid everywhere, for this, in certain cases of insuperable difficulty, might prerent a subject from marrying abroad. Lord Stowell, in 2 Hagg. Cons. 390, 391. Shelford on Marriage and Divorce, p. 143. An exception to the rule that a marriage valid at the place where it was contracted is valid everywhere, is the case of a marriage involving polygamy or incest, for no Christian country will recognize such marriages. Warrender r. Warrender, cited in a note to ý 114, 9 Bligh, 112. Story on the Conflict of Laws, 5 113–114.
(e) De Conflictu Legum, sec. 8. Bouhier, Cout. de Bourg. ch. 28, p. 557, and P. Voet, de Statutis, p. 268, are cited in Story's Commentaries on the Conflict of Laws, $ 123, to the same point. Burge, in his Comm. on Colonial and Foreign Laws, vol. i. 194, considers that the English decisions are not inconsistent with the doctrine in Huberas, because the going to Scotland to avoid the restraints of the English Marriage Act, and marrying, and returning forthwith to England, is not an evasion or in fraud of the Marriage Act, for that Act contains no express prohibition of such marriages, or provision rendering them void. In my view of the subject, those Scotch marriages, between English fugitives and transient parties, are palpable evasions of the English statute, and completely within the complaint and the censure of Huberus, and the English courts carry the doctrine in support of such fraudulent marriages as far as any of the Massachusetts decisions to which the learned author refers.
. In Virginia, the law requires a license for marriage, to be given by the clerk, &c., of the county; and in the case of minors, the consent of the parents, &c., must be given, in person or in writing, to the clerk. The law requires the marriage to be under the license; but no marriage solemnized by a person professing to be authorized, shall be adjudged invalid if the marriage be in other respects lawful, and be consummated in the belief of the parties that they are lawfully married. Rev. Code of Virginia, tit. 31, ch. 108.
A similar law has been enacted in Wisconsin. Rev. Stat. ch. 36, 1849.
In Wisconsin, the age of consent to marriage is for males, 18 years, and for females, 15; while in Virginia, the age is for males, 14, and for females, 12 years.
that if two persons, in order to evade the law of Holland, which requires the consent of the guardian or curator, should go to Friesland, or elsewhere, where no such consent is necessary, and there marry, and return to Holland, the courts of Holland would not be bound, by the law of nations, to hold the marriage valid, because it would be an act ad eversionem juris nostri.3 In oppo
sition to this opinion, we have the decision of the court of * 92 delegates in England, in 1768, in * Compton v. Bearcroft, (a)
where the parties, being English subjects, and one of them a minor, ran away, without the consent of the guardian, to avoid the English law, and married in Scotland. In a suit in the spiritual court, to annul the marriage, it was decided that the marriage was valid. This decision of the spiritual court has been since frequently and gravely questioned. Lord Mansfield, a few years before that decision of the delegates, intimated pretty strongly (6) his opinion in favor of the doctrine in Huberus, though he admitted the case remained undecided in England. The settled law is now understood to be that which was decided in the spiritual court. It was assumed and declared by Sir George Hay, in 1776, in Harford v. Morris, (c) to be the established law. The principle is, that, in respect to marriage, the lex loci contractus prevails over the lex domicilii, as being the safer rule, and one dictated by just and enlightened views of international jurisprudence. This rule was shown, by the foreign authorities referred to by Sir Edward Simpson, in 1752, in the case of Scrimshire v. Scrimshire, (d) to be the law and practice in all civilized countries, by common consent and general adoption. It is a part of the jus gentium of Christian Europe, and infinite mischief and confusion would ensue with respect to legitimacy, succession, and other rights, if the validity of the marriage contract was not to be tested by the
(a) Buller's N. P. 114. 2 Hagg. Cons. 443, 444, and note, S. C.
(d) 2 Hagg. Cons. 412-416. See, also, Story's Commentaries on the Conflict of Laws, $ 123, et seq.; and Lord Stowell, in Dalrymple v. Dalrymple, 2 Hagg. Cons. 59. J. Voet. ad Pand. 23, 2, 4. Merlin's Rép. tit. Marriage, sec. I.
3 The same principle is established by statute in Massachusetts. But if a marriage be valid where made, and be not contracted in fraud of an express statute, or void by the law of nature, it will be treated as valid in another state, when it would, by its general law, be void if contracted there. Sutton v. Warren, 10 Metcalf, 451.
laws of the country where it was made. This doctrine of the English ecclesiastical courts was recognized by the Supreme Court of Massachusetts, in Medway v. Needham ; (e) and though the parties, in that case, left the state on purpose to evade its statute law, and to marry in opposition to it, and being married, returned again, it was held that the * marriage must be * 93 deemed valid, if it be valid according to the laws of the place where it was contracted, notwithstanding the parties went into the other state with an intention to evade the laws of their own. It was admitted that the doctrine was repugnant to the general principles of law relating to other contracts; but it was adopted in the case of marriage, on grounds of policy, with a view to prevent the public mischief and the disastrous consequences which would result from holding such marriages void. It was hinted, however, that this comity, giving effect to the lex loci, might not be applied to gross cases, such as incestuous marriages, which were repugnant to the morals and policy of all civilized nations. (a) This comity has been carried so far as to admit the legitimacy of the issue of a person who had been divorced a vinculo for adultery, and who was declared incompetent to remarry, and who had gone to a neighboring state, where it was lawful for him to remarry, and there married. (6)
(e) 16 Mass. 157. Putnam v. Putnam, 8 Pick. 433, S. P. (a) See, also, Greenwood v. Curtis, 6 Mass. 358. Huber. de Conf. Leg. lib. 1. tit. 3, 8. Heinic. Elem. Jur. Nat. et Gent. lib. 2, c. 2, sec. 41, S. P.
(6) West Cambridge v. Lexington, 1 Pick. 506. A person was disabled from remarrying by the laws of Kentucky, and yet his marriage in Tennessee was held valid there, for penal laws have no ex-territorial force. Dickson v. Dickson, 1 Yerger, 110. But in Conway v. Beazley, 3 Hagg. E. Rep. 639, the lex loci contractus as to marriage, was held not to prevail under the law of the domicil, when either of the contracting parties were under a legal incapacity to contract by the law of the domicil. Huberus, De Conflictu Legum, lib. I tit. 3, sec. 8, also admits that an incestuous connection formed abroad is not to be recognized; nor will the English courts, while they recognize the validity of foreign marriages, admit the legal consequences abroad of a foreign marriage, such as the
1 In Brook v. Brook, 9 H. of Lords Cases 193, it was decided that a marriage was unlawful, by the English law, contracted by a man with his deceased wife's sister, in Denmark, the parties being English, domiciled in England, and temporarily in Denmark. That the les loci contractus governs as to the forms of marriage was admitted, but the law of the domicil of the parties was held to regulate, in the courts of the country of their domicil, the lawfulness of the marriage in respect to their personal capacity to marry with each other. The Massachusetts cases of Medway r. Needham, 16 Mass. 157, and Sutton v. Warren, 10 Metcalf 451. are cited and disapproved.
legitimation of ante nuptial offspring. Doe v. Vardill, 5 Barn. & Cress. 428. See infra, 209. The Massachusetts Revised Statutes of 1836 have altered the law in this respect in that state, by declaring that if persons resident in that state contract marriage contrary to the provisions of the statute law, and, in order to evade them, go out of the state and marry, and return and reside there, such marriage is declared void within the state. By the French Civil Code, No. 63, publication of bans is to precede marriage ; and by the article No. 170, if a Frenchman marries in a foreign country, the same regulation is still to be observed ; and yet, according to Toullier, Droit Civil Français, tom. i. No. 578, and note, Ibid., the omission to comply with the prescribed publication does not render the marriage void, whether celebrated at home or abroad. But if the marriage of a Frenchman abroad be within the age of consent fixed by the French code, though beyond the age of consent fixed by our law, it would seem that the marriage would not be regarded in France as valid, though valid by the law of the place where it was celebrated. The French code, No. 170, requires the observance, by Frenchmen, of the ordinances of that code, though the marriage be abroad, for personal laws follow Frenchmen wherever they go. Toullier, Droit Civil Français, tom. i. Nos. 118 and 576. Répertoire de Jurisprudence, tit. Loi, sec. 6. It was testified by the French consul at London, in Lacon v. Higgins, 2 Dowl. & Ry. N. P. 38, that a marriage in France, contrary to the prescribed solemnities in arts. 63, 64, 74, of the Code Napoleon, would be absolutely null and void. Mr. Justice Story, in his Com. on the Conflict of Laws, § 124, justly questions the wisdom of these stern and unrelenting rules of the French code.
The incidents to marriage respecting rights and property, under the operation and collision of foreign and domestic law, have been a fruitful source of discussion among foreign jurists. Their refinements and speculations have been examined by Mr. Justice Story, (Com. on the Conflict of Laws, ch. 6,) and he draws the following conclusions from a survey of the writings and cases, foreign and domestic, relating to the subject : (1.) That where there is marriage in a foreign country, and an express nuptial contract concerning personal property, it will be sustained everywhere, unless it contravenes some positive rule of law or policy. But as to real property, it will be made subservient to the lex rei sitæ. (2.) Where such a contract applies to personal property, and there is a change afterwards of the matrimonial domicil, the law of the actual domicil will govern as to future acquisitions. (3.) If there be no such contract, the matrimonial domicil governs all the personal property elsewhere, but not the real property. (4.) The matrimonial domicil governs as to all acquisitions, present and future, if there be no change of domicil. (5.) If there be, then the law of the actual domicil will govern as to future acquisitions, and the law rei sitæ as to real property. Story's Com. on the Conflict of Laws, § 184-187. The English law, according to Lord Eldon, (Lashley v. Hogg, cited in Robertson's Appeal Cases, p. 4. Selkrig v. Davies, 2 Rose Bank Cases, p. 99,) is, that if there be no special contract, the law of the actual domicil, at the dissolution of the marriage, governs as to all the property, whether acquired before or after the change of the matrimonial domicil. But if there was no change of the matrimonial domicil, the law of that domicil governed the personal property, wherever acquired and wherever situated. This is also the law in Louisiana. Saul v. His Creditors, 17 Martin (5 N. S.) 569, 603-5; and it is a principle which best harmonizes with the analogies of the common law. Story's Com. $ 171, et seq. The foreign jurists do not generally agree to these conclusions, but they insist that the change of domicil after marriage does not change the law of the matrimonial domicil, as to past or future acquisitions. (Story's Com. $ 160-170.) But it is agreed that nuptial contracts follow the parties into foreign countries, and bind them. Murphy v. Murphy, 5 Martin (Louis.) 83. Decouche v. Savetier, 3 Johns. Ch. 190. Story's Com. § 189. If, however, the marriage takes place in a foreign country in transitu, and where the parties had no intention of fixing their domicil, the law of the actual or intended domicil of the parties governs the case as to the incidents of marriage, and it is the general rule, that if the husband and wife had different domicils when they married, the domicil of the husband became the true and only matrimonial domicil. Le Breton v. Nouchet, 3 Martin (Louis.) 60. Ford's Curator v. Ford, 14 Ibid. 574. This is the opinion of all the foreign jurists. Story's Com. $ 191– 199,