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committed adultery there. The court dismissed the bill, on the principle that the lex loci contractus must govern, as the permanent domicil was still in England, and a divorce a vinculo could not be obtained. The court insisted, that by the jus gentium, courts in one country cannot set aside contracts valid in another country where they were made. A temporary residence, raised for the purpose of jurisdiction, would be in fraudem legis. The lex loci is the sound rule of decision in respect to marriage contracts; and the courts of one country ought not to be converted into engines for either eluding the laws of another, or determining matters foreign to their territory. The lex loci ought to prevail over the lex domicilii on just principles of international policy, as the marriage contract is jure gentium. All Christian states favor the perpetuity of marriage, and suspicion and alarm watch every step to dissolve it; and the plaintiff was entitled ex comitate, and upon principles of international law, to the same measure of redress she would be entitled to in England, and especially when the lex loci contractus and the lex domicilii both concurred. To grant such divorces contrary to the lex loci, would be to invite foreigners to come to Scotland and commit adultery for the sake of the divorce; and this would hurt the public morals, and pollute a jurisdiction constituted to act in evident hostility to the laws and the policy of other states.
But the court of sessions reversed the decree, in opposi- * 115 tion to all this reasoning and doctrine; and they insisted that the relation of husband and wife, wherever originally constituted, was entitled to the same protection and redress, as to wrongs committed in Scotland, that belong of right to that relation by the law of Scotland. By marrying in England, the parties do not become bound to reside forever in England, or to treat one another in every other country according to the provisions of the law of England. To redress the violation of the duties and abuse of the powers of the marriage state, belongs to the law of the country where the parties reside, and to which they contract the duties of obedience, whenever they enter its territories. There is nothing in the will of the parties that gives the lex loci any particular force over the marriage contract, or that impedes the course of the jus publicam, in relation to it; and it would be no objection to a divorce, at the instance of a Roman Catholic, that his marriage was, as to him, a sacrament, and by its own nature indissoluble. Other contracts are modified by the will of the parties, and the lex loci becomes essential; but not so with matrimonial rights and duties. Unlike other contracts, marriage cannot be dissolved by mutual consent; and it subsists in full force, though one of the parties should be forever rendered incapable, as in the case of incurable insanity, from performing his part of the mutual contract. Matrimonial obligations are juris gentium, and admit of no modification by the will of the parties; and foreign courts are not bound to inquire after that will, or after the municipal law to which it may correspond. They are bound to look to their own law, and to hold it paramount, especially in the administration of that department of internal jurisprudence, which operates directly on public morals and domestic manners. The consequences would be embarrassing, and probably inextricable, if the personal capacities of individuals, as of majors and minors,
the competency to contract marriages, and infringe matri*116 monial obligations, and the rights of domestic * authority
and service, were to be regulated by foreign laws and customs, with which the mass of the population must be utterly unacquainted. The whole order of society would be disjointed, were the positive institutions of foreign nations concerning the domes tic relations admitted to operate universally, and form privileged castes, leaving each under separate laws. Though marriage, contracted according to the lex loci, be valid all the world over, yet many of its rights and duties are regulated and enforced by public law, which is imperative on all who are domiciled within its jurisdiction. The laws of divorce are considered as of the utmost importance as public laws, affecting the dearest interests of society; and they are not to be relaxed as to a person domiciled in Scotland, because his marriage was contracted out of it. If two natives of Scotland were married in France or Prussia, the marriage would be valid in Scotland ; but would the parties be entitled to come into court and insist on a divorce a vinculo, because their tempers were not suitable, or for any of the great variety of whimsical and absurd grounds for a divorce allowed by the Prussian code of 1795? Certainly not; and the conclusion was, that the law of divorce must be governed by the law of Scotland, whenever the party was sufficiently domiciled there to enable the court to sustain jurisdiction of the cause.
I have thus given, for the benefit of the student, a pretty enlarged view of the discussions in Scotland, on this great question, touching the power of divorce in one country upon marriage in another. The same question was brought up, on appeal from Scotland, to the House of Lords in England, in 1813, in the case of Tovey v. Lindsay ; (a) and Lord Eldon there stated the decision of the twelve judges to have been, that no English marriage could be dissolved but by Parliament. The question in the case was, whether an English marriage could be dissolved by a Scotch court, even if the parties were sufficiently domi- * 117 ciled there to found a jurisdiction of the case. The lord chancellor admitted it to be a question of the highest importance; and Lord Redesdale intimated, that it could not be just, that one party should be able, at his option, to dissolve a contract, by a law different from that under which it was formed, and by which the other party understood it to be governed. The case was remitted back for review, without any final decision in the English House of Lords; but the opinion of Lord Eldon and Lord Redesdale evidently agreed with the decision of the twelve judges at Westminster, and went to deny the competency of any court to pronounce a decree of divorce a vinculo of English marriages, or to pronounce any other decree in the case than such as would be warranted by the lex loci contractus. (a)
Upon principles of the English law, a marriage contracted in
(a) i Dow, 117.
(a) In Conway v. Beazley, 3 Hagg. Eccl. 639, in the consistory court of London Dr. Lushington considered it to be still an unsettled question, whether a Scotch divorce of a marriage in England would be necessarily, and under all circumstances, invalid in England, if the parties were at the time actually and bonâ fide domiciled in Scotland. But he followed the decision in Lolley's case, (supra, p. 110,) and held that a Scotch divorce a vinculo from an English marriage, between parties domiciled in England at the time of such marriage, was null. Mr. Prater, in his Treatise on the “Cases illustrative of the Conflict between the Laws of England and Scotland, with regard to Marriage, Divorce, and Legitimacy,” (London, 1835,) concludes that the laws of England and Scotland ought to be assimilated, by enabling the English ecclesiastical courts to dissolve marriages for adultery, and to disallow the plea of recrimination as a bar to the sait, and not to permit desertion to be a cause of divorce in Scotland. He further proposes to abolish the law of legitimation in Scotland. The conclusion on this vexed subject to which Mr. Burge arrives, after an able consideration of the question in his Commentaries on Colonial and Foreign Laws, vol. i. 680–691 is, that the lex loci contractus ought to be invoked, when the question is whether a marriage was in the first instance valid in law, and that the appropriate law, by which the dissolubility of the marriage is to be determined, ought to be that of the actual domicil.
New York cannot be dissolved, except for adultery, by any foreign tribunal out of the United States; because the lex loci contractus ought to govern; and if a divorce by a judicial proceeding
This great question has at last been settled in the English House of Lords, in conformity with the principle of the Scotch decisions. In Warrender v. Warrender (2 Shaw & Maclean, 139 ; 9 Bligh, 89,) decided in the Court of Session in Scotland, the husband was a native of Scotland, where he continued to retain his domicil. He married in England an English woman, and for adultery, committed by the wife in France, he sued in the Scotch court for a divorce, and the court held that they had jurisdiction over the case, and dissolved the marriage, and the decision was affirmed, on appeal to the House of Lords, in 1837. Lord Chancellor Brougham, in his opinion delivered in the House of Lords in that case, observed that Lolley's case only settled that an English marriage could not be dissolved for English purposes, by any proceeding in a foreign jurisdiction, and that the divorced party would still be entitled to the rights and subject to the disabilities of a married person in England. But he held that Lolley's case was not founded on sound principles, and that there was an irreconcilable inconsistency in the proposition that the Scotch law was all-powerful to make a valid marriage, and utterly incompetent to dissolve it; and that if the courts could recognize the foreign law as to the creation, they ought equally as to the rescission, of the contract of marriage. The decision of the lords in this case essentially overruled Lolley's case, and settled that Scotch courts have jurisdiction in divorce, when the domicil has been acquired, without having regard to the native country of the parties, or of their marriage. The decision, and the order for re-argument, in the case of Birtwhistle v. Vardill, infra, p. 209, n. (d), have gone far to disembarrass the collision between English and foreign law from some of its most distressing results.
In Dorsey v. Dorsey, 7 Watts, 349, it was held by the Supreme Court of Pennsylvania, that the law of the actual domicil of the party, at the time of committing the injury, was the rule in cases of divorce for everything but the original obligation of marriage; and that, although the original domicil and marriage of the parties were in Pennsylvania, the court had no jurisdiction of a cause of divorce alleged to have been committed in Ohio by the husband, while his domicil was in the state of Ohio. Ch. J. Gibson briefly but forcibly sustained the principle of the decision. So, in Kentucky, it is held that no state or nation has power to dissolve the marriage contract between citizens of any other state or nation, not resident or domiciled within its limits, for no nation could preserve its social order, if any other foreign state could, without its consent, dissolve or disturb that most important domestic institution of marriage. The principle that no foreign power can control the marriage contracts of foreigners, not domiciled within its jurisdictional limits, was clearly illustrated in the opinion of Ch. J. Robertson, and it rests upon the soundest basis of policy and sovereignty, and a decree of divorce was held to be void against a husband who was never domiciled in the state. Maguire v. Maguire, 7 Dana, 181.1
1 Harrison v. Harrison, 19 Ala. 499. Dolphin v. Robins, 7 H. of Lords cases, 390. In the latter case it was decided that a foreign court could not dissolve the bonds of an English marriage, unless the parties were bonâ fide domiciled in the foreign country. On the question whether an actual and bonâ fide domicil would, in an English court, be regarded as rendering effectual such a divorce, was expressly left undetermined.
in one of these United States be entitled to a different consideration in others, it is owing to the force which the national compact, and the laws made in pursuance of it, give to the records and judicial proceedings of other states. If, however, a marriage in New York should be dissolved, not by a regular judicial sentence, but by an Act of the legislature in another state, passed specially for the purpose, and for such a cause not admissible here, would such a divorce be received here as binding? A statute, though not in the nature of a judicial proceeding, is, however, a record of the highest nature; and in some of the states, all their divorces are by special statutes. But if a statute, though a matter of record, was to have the same effect in one state as in another, then one state would be dictating laws for another, and a fearful collision of jurisdiction would instantly follow. That construction is utterly inadmissible. While it is conceded to be a principle of public law, requisite for the safe intercourse and commerce of mankind, that acts valid * by the law of the place where *118 they arise, are valid everywhere, it is, at the same time, to be understood that this principle relates only to civil acts founded on the volition of the parties, and not to such as proceed from the sovereign power. The force of the latter cannot be permitted to operate beyond the limits of the territory, without effecting the necessary independence of nations. And, in the present case, it is to be observed, that the Act of Congress of the 26th of May, 1790, ch. 11, prescribing the mode of authenticating records, only declares the faith and credit to be given to the records and judicial proceedings of the courts in the several states; and the supplementary Act of the 27th of March, 1804, ch. 56, relates only to office-books kept in the public offices, and has no bearing on this point. But if, instead of a divorce by statute ex directo, the Act should refer a special case to a court of justice, with directions to inquire into the fact, and to grant a divorce, or withhold it, as the case might require, would that be a judicial proceeding, to which full effect ought to be given ? A number of embarrassing questions of this kind may be raised on this subject of interfering jurisdictions, and some of them may, probably, hereafter exercise the talents, and require the application of the utmost discretion and wisdom of the courts of justice. I have done as much as becomes the duty which I have assumed, in bringing into view