how opposed to the policy of the domicil and forum a marriage between the parties may be (if not immoral), preferring before any special policy of the domicil the general policy which looks to the upholding of marriages valid where contracted. And these courts hold to this view even though the parties have contracted the marriage abroad in order to evade the domiciliary law. Under this line of decisions, nothing but a statute of the domicil explicitly declaring such a marriage between its citizens void, though entered into abroad, will be permitted to outweigh the general and important policy of upholding marriages.

Thus, in a leading Massachusetts case,' a white person and a negro, resident in Massachusetts, went to Rhode Island and were there married, intending to evade the law of Massachusetts, which invalidated such marriages. They then returned to Massachusetts. The validity of the marriage being called in question before the courts of Massachusetts (the domicil and forum), the court sustained the marriage, inasmuch as it was valid in Rhode Island. In the course of its opinion, the court said: "Motives of policy may likewise be admitted into the consideration of the extent to which this exception is to be allowed to operate. If without any restriction, then it might be that incestuous marriages might be thus contracted. But it is not to be inferred from a toleration of marriages which are prohibited merely on account of political expediency, that others which would tend to outrage principles and feelings of all civilized nations would be countenanced." &

are to be regulated in all cases by the law of the situs of the celebration (lex celebrationis). See post, § 77.

Medway v. Needham, 16 Mass. 157, 6 Am. Dec. 131; Putnam v. Putnam, 8 Pick. (Mass.) 433; Com, v. Lane, 113 Mass. 458, 18 Am. Rep. 509; Ross v. Ross, 129 Mass. 243, 247-248, 37 Am. Rep. 321; Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435; Van Voorhis v. Brintnall, 86 N. Y. 18, 25, 40 Am. Rep. 505; Thorp v. Thorp, 90 N. Y. 602; Moore v. Hegeman, 92 N. Y. 521, 44 Am. Rep. 408; Stevenson v. Gray, 17 B. Mon. (Ky.) 193. 7 Medway v. Needham, 16 Mass. 157, 6 Am. Dec. 131.

8 But matters of political expediency may become of as tremendous importance as matters of moral expediency. It must be remembered that at the date of this decision (1819) there were (and still are) comparatively few negroes in Massachusetts, and the policy which dictated this statute had ceased to be of great importance.

9

In a Kentucky case, a man and the widow of his deceased uncle, while domiciled in Kentucky, where they were prohibited from marrying, went into Tennessee, where no such prohibition existed, and were there married, and then returned to Kentucky. The court of the domicil pronounced the marriage good.

In Van Voorhis v. Brintnall, 10 the law of New York provided that, upon a divorce for adultery, the court might decree that the guilty party should not marry again during the lifetime of the consort. A marriage between E and B was dissolved there on the ground of B's adultery, the parties being domiciled in New York; and the court ordered that B should not marry during E's lifetime. Thereafter B went to Connecticut, E being still alive, and there married I, also a resident of New York. B and I went to Connecticut for the purpose of evading the New York law, and returned to New York on the day of the marriage, which was valid under the laws of Connecticut. The New York court held that, although the marriage would have been invalid if celebrated there, it must be considered as valid in. New York because valid where it was celebrated, and that the issue of the marriage were therefore legitimate in New York, and entitled to share with the children of the first marriage under a devise "to the issue of B."

On the other hand, many courts, attaching greater weight to the particular domestic policy than to the general policy which seeks to uphold marriages bona fide entered into between the parties, will be found to have arrayed themselves in favor of the enforcement of the law of the domicil and forum, in those cases where the domestic policy is so important and pronounced, or the evils it aims to avert are so imminent, as to justify such a course." In the view of this line of decisions, the fact that the statutes of the domicil are so framed as explicitly to prohibit

9 Stevenson v. Gray, 17 B. Mon. (Ky.) 193.

10 86 N. Y. 18, 40 Am. Rep. 505.

11 Kinney v. Com., 30 Gratt. (Va.) 858; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319; Williams v. Oates, 5 Ired. L. (N. C.) 535; Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703; Ex parte Kinney, 3 Hughes (U. S.), 1, 20-21; State v. Tutty, 41 Fed. 753, 759-760; True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164; Brook v. Brook, 9 H. L. Cas. 193.

such marriages by its citizens, even when entered into abroad, is only one evidence of the importance attached to its policy by the State of the domicil and forum. But other evidences of the importance of the domestic policy, in the absence of such statute, are not excluded. 1

12

No finer illustration of the manner in which this divergence. of view comes about can be found than that presented in the comparison of the cases arising upon the validity of marriages between white persons and negroes, valid where contracted, but prohibited by the law of the domicil and forum. In Massachusetts, where negroes are few, it has been held under such a state of facts that the law of the domicil and forum (Massachusetts) could not be invoked to annul a marriage between its citizens, validly contracted elsewhere. On the other hand, under precisely similar circumstances it has been held by the courts of the Southern States, where negroes are numerous and marriages between them and the whites are regarded justly as most contrary to public policy and expediency, as well as utterly repugnant to the sentiment of the people, that marriages of this sort will not be sustained in the domicil and forum, though validly contracted by its citizens in another jurisdiction, even in the absence of a statute embracing such marriages when contracted abroad.18

The true principle is that it is a question of policy, which each State must determine for itself according to the conditions prevailing there, so far as its own citizens are concerned, and it may determine the question as well through its courts as its legislature. As the North Carolina court expresses it in State v. Kennedy: 14"When it is conceded, as it is, that a State may

12 See State v. Tutty, 41 Fed. 753; Ex parte Kinney, 3 Hughes (U. S. ), 1 ; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683, 684; Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319.

13 Kinney v. Com., 30 Gratt. (Va.) 858; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683; Ex parte Kinney, 3 Hughes, 1; State v. Tutty, 41 Fed. 753. See also Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319; Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703.

14 76 N. C. 251, 22 Am. Rep. 683, 684. And the same principle, though with the opposite result, was applied in Medway v. Needham, 16 Mass. 157, 6 Am. Dec. 131.

by legislation extend her law prescribing incapacities for contracting marriage over her own citizens who contract marriages in other countries by whose law no such incapacities exist, as Massachusetts did after the decision of Medway v. Needham, the main question is conceded, and what remains is of little importance. Nothing remains but the question of legislative intent, to be collected from the statute."

Nor has this divergence always been confined to cases of marriages between white persons and negroes. The same difference of opinion appears with respect to the importance to be attached to the domestic policy prohibiting certain relatives from marrying. So also a like difference of opinion has been manifested in the effect of a foreign marriage by a guilty party to a divorce suit who has been prohibited to marry again.16

15

It is to be observed that if the parties remove from the State of their domicil, with the bona fide intent to become domiciled in another State, and having settled there then marry according to its laws, the marriage, though prohibited by the law of their first domicil, will be deemed valid everywhere, even in the first domicil, should they afterwards return thither either temporarily or permanently."

If the parties to the marriage are domiciled in different States

15 For example, compare Brook v. Brook, 9 H. L. Cas. 193 (in which a marriage contracted in Holland, between a domiciled Englishman and his deceased wife's sister, who had met there casually, not by design, was held to be void in England, because within degrees of kindred prohibited by English law) with Stevenson v. Gray, 17 B. Mon. (Ky.) 193, already quoted, and Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509. The latter case criticises Brook v. Brook very severely. And perhaps the enforcement of a domestic poliey of that nature at the expense of international comity is going a little further than sound judgment warrants. In England however the lex domicilii is regarded as the " proper law." See Sottomayor v. De Barros, 3 P. D. 5, 7.

16 Compare Van Voorhis v. Brintnall, 86 N. Y. 18, 25, 40 Am. Rep. 505 (already quoted), and Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509, with Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703. See post, $ 74.

17 State v. Ross, 76 N. C. 242, 22 Am. Rep. 678; West Cambridge v. Lexington, 1 Pick. (Mass.) 506, 11 Am. Dec. 231. See Cummington v. Belchertown, 149 Mass. 223, 227, 21 N. E. 435; Sutton v. Warren, 10 Met. (Mass.) 451.

at the time of the marriage, perplexing questions may arise. Suppose the law of the intended husband's domicil prohibits the marriage, while that of the intended bride's does not, or vice versa, what law shall govern? The solution of such questions will be found in the principles above stated. The marriage, if valid where contracted, will be valid everywhere, except in the State whose policy towards its own citizens has been violated. In the latter State the marriage will be annulled or sustained according to the view its courts take of the relative importance of the policies involved, or their view of the legisla tive intent. But it must not be forgotten that after the marriage the parties will generally reside in the husband's domicil, not in the wife's. Hence the importance to be attached to the policy of the wife's prior domicil will not usually be so great as that attached to the policy of the husband's domicil. § 74. Particular Incapacities to Marry Guilty Party to Divorce prohibited to Marry again. In the preceding section the general principles regulating matrimonial incapacity have been considered, and incidentally the disabilities imposed by consanguinity or affinity and by the evils of miscegenation have been discussed pretty fully, and the former will be soon adverted to again.1 The disability to marry again imposed under the laws of many States upon the guilty party in a divorce deserves special attention.

In many of the States the legislatures have enacted that a guilty party shall not remarry during the lifetime of the innocent consort, or else they have given to the courts the power to make such decree. What will be the effect if the party does marry again?

If no foreign element is introduced into the case, it is not a question of international, but strictly of municipal law, with which we have no concern. Such will be the case when the divorce takes place in the domicil of both the parties, and the subsequent marriage occurs in the same State, and the question arises there for decision. Here there is no foreign element. But if the question arises elsewhere, or if the subsequent marriage occurs in a State òther than the domicil, or if the party 1 Post, § 75.