the sentence abroad was of nullity only, without reference to adultery. In this case Lord Stowell said "Something has been said on the doctrine of law regarding the respect due to foreign judgments; and undoubtedly a sentence of separation in a proper court, for adultery, would be entitled to credit and attention in this court; but I think the conclusion is carried too far, when it is *said, that a sentence of nullity of marriage is necessarily and universally [ *150 ] binding on other countries. Adultery and its proofs are nearly the same in all countries. The validity of marriage, however, must depend, in a great degree, on the local regulations of the country where it is celebrated. A sentence of nullity of marriage, therefore, in the country where it was solemnized, would carry with it great authority in this country; but I am not prepared to say, that a judgment of a third country on the validity of a marriage not within its territories, nor had between subjects of that country, would be universally binding. For instance, the marriage alleged by the husband is a French marriage; a French judgment on that marriage would have been of considerable weight; but it does not follow that the judgment of a court at Brussels on a marriage in France, would have the same authority, much less on a marriage celebrated here in England. Had there been a sentence against the wife for adultery in Brabant, it might have prevented her from proceeding with any effect against her husband here; but no such sentence any where appears." The result was, that the sentence was held not to bar the wife from proceeding in this country.(/)

A defendant offered to prove that King, being a Jew, and his former wife a Jewess, were divorced at Leghorn according to the rites and customs of the Jews there, and that after such divorce it was competent to either party to marry again. To prove this, an instrument whereby they were divorced from each other, under the seal of the synagogue there, was produced. But Lord Kenyon held this no evidence, for before he could take notice of any proceeding in a foreign court, he must know the law of the country, which was matter of evidence and should be proved by witnesses. But the Jewess herself was permitted to give parol evidence of her own divorce in a foreign country, according to the custom of the Jews there.(m) *Foreign laws, if in writing, must be proved by a copy properly authenticated.(n)

[ *151 ]

It is stated to have been held by Lord Kenyon, and confirmed in the King's Bench, that the unwritten law of a foreign country can only be proved by documents properly authenticated.(o)

(1) Sinclair v. Sinclair, 1 Hagg. Cons. R. 297. The sentence of a foreign court having jurisdiction, seems to be conclusive on the persons within it. Burrows v. Jemineau, Sel. Cas. Ch. 69. See 3 Mod. 194; Bull. N. P. 245; 1 Roll. Abr. 530. B.; Cottington's case, 2 Swanst. 326 n.

(m) Ganer v. Lady Lanesborough, 1 Peake's Cas. 25, 3d edit.

(n) Clegg v. Levy, 3 Camp. 30; Millar v. Heinrick, 4 Camp. 155; 30 How. St. Tr. 91; 1 Camp. 63.

(0) Boehtlinck v. Schneider, 1 Esp. 58; 3 East, 380. In this case evidence was admitted of one of the documentary navigation laws of Russia, and also of a documentary opinion of the judges of the Custom House court of St. Petersburgh, on the effect and operation of that law, signed by the presid ing judges of that court; but on a special case reserved for the opinion of the Court of King's Bench upon the admissibility of the latter document, no opinion was given.

But in Millar v. Heinrick,(p) Gibbs, C. J., said, foreign laws not written are to be proved by the parol examination of witnesses of competent skill.(g)

Upon a question with respect to a colony, whether the law of the mother country is the law of the colony, the statement of text writers may be admitted. In General Picton's case,(r) where such a question was suggested as likely to occur, Lord Ellenborough said, "The textwriters furnish us with their statement of the law; and that would certainly be good evidence, upon the same principle which renders histories admissible. There is a case," continued Lord Ellenborough, "in which the history of the Turkish empire by Cantenier, was received by the House of Lords, and received after some discussion; I shall therefore receive any book that purports to be a history of the common law of Spain."

In order to establish the law of France in relation to marriages, a witness was called, who was the French vice-consul here, who produced a book, which he said contained the French code of laws upon which he acted at his office. He stated that there was in Paris an office for the printing of the laws in France, called the royal printing office, where the laws were printed by the authority of the French government. The book itself, which not only contained a body of French laws, but also a commentary upon them, for the use of *students, by M. Sirey, purported to have been printed [ *152 ] at that office, and to contain a copy of the constitutional charter of France. The witness also stated, that this book would have been acted upon in any of the French courts. On the part of the defendant it was insisted, that this evidence was insufficient to warrant the reading of the French ordinances, in relation to marriage, from that book. It was very possible that the book might be receivable in the courts of France as evidence of the known law there, in the same manner as printed copies of the statutes are used in the courts in this country; but this would not make them admissible evidence elsewhere; as the code of French laws was a written code, a copy of that code examined with the original ought to be proved.

On the other hand it was insisted, that the book produced, coupled with the parol testimony of the witness, was sufficient. Lord Tenterden, C. J., at first doubted whether it was not necessary to prove the written law of France, by means of an examined copy of the original charter; but, upon the authority of Picton's case, said he would admit the book as evidence.(s) It seems that the evidence was received in this case by consent; it can scarcely therefore be considered as a decision, that foreign law can be proved by an unprofessional person..

Where the opinions of foreign advocates upon the French law differed, but each of them founded their opinion upon the French code, the court thought itself at liberty to refer to the text of that code in order to form their own judgment.(t)

In a court of equity an affidavit will be received for verifying

(p) 4 Camp. 155.

(9) See Buchanan v. Rucker, 1 Camp. 63. (r) Rex v. Picton, 30 Howell's St. Tr.

492.

(8) Lacon v. Higgins, 3 Stark. N. P. C. 178; see ante, p. 151.

(t) Trimbey v. Vignier, 4 Moore & S. 704; 1 Bing. N. R. 151.

foreign law, but it must be by a professional person who has practised in the foreign court, and be positive as to the law, and not confined to mere hearsay or belief.(u)

The courts of England will not adopt a rule of evidence from foreign courts: thus a judgment of the supreme court of Jamaica was held not to be proved by a copy signed by the clerk of that court, though it was proved that such copies *were received as [ *153 ] evidence in Jamaica ;(x) but if there be no seal of the court or island, an examined copy must be obtained, or proof of the judge's signature upon the judgment.(y)

The fact of a foreign marriage may be established by the sentence of a foreign court having competent jurisdiction, in a suit instituted there; and this generally speaking, is conclusive by the law of nations; for otherwise the rights of mankind would be very precarious and uncertain.(2)

Willes, C. B., could not agree with the resolution in Alsop v. Bowtrell, (a) that a certificate under the seal of the minister at Utrecht, and of the said town, of the marriage of two persons there, and that they cohabited together as man and wife, was a sufficient proof. The certificate of the minister of the fact of the marriage at a place where there was no bishop might perhaps be equal to the bishop's certificate here, which is in some cases conclusive evidence of a marriage. But he was clearly of opinion that the certificate of their cohabiting together ought not to have been admitted. (b)

A copy of a register of baptism or marriage in the island of Guernsey is not evidence here: for although credit is given by courts of justice to such registers in this country as being made under the ecclesiastical jurisdiction, yet the same credit is not given to the registers of any other place in the absence of proof that they are made under proper authority.(c)

So an examined copy of the register of the marriage in the Swedish ambassador's chapel at Paris is not receivable in evidence.(d)

In Bruce v. Burke,(e) the article in a libel as to the law of marriage in Ireland, was proved by two barristers who had practised at the

Irish bar.

(u) Hill v. Reardon, Jac. R. 89, 90. As to proving a marriage abroad in Chancery, see 1 Smith's Ch. Pr. 527.

(z) Appleton v. Lord Braybrook, 6 Maule & S. 34; Bull. N. P. 229. See Brown v. Thornton, 6 Ad. & Ell. 185; Adamthwaite v. Synge, 1 Camp. 183. See Phillips on Evid. 623, 634, 8th ed.

(y) Alves v. Bunbury, 4 Camp. 28.
(2) Per Lord Hardwicke, Roach v. Gar-

M 2

Canonical and Civil Disabilities.]-The impediments to marriage are of two kinds, canonical and civil. The one is called an impedimentum impeditivum, an impediment which throws an obstruction in the way of the celebration of marriage; and the other an impedimentum dirimens, an impediment which affects the validity of the mar riage notwithstanding it has been actually celebrated. The canonical disabilities are consanguinity, affinity, and certain corporal infirmities which incapacitate the party for the performance of conjugal duties; to which may be added, though of rare occurrence, force and error. Civil disabilities are a prior marriage, want of age, idiotcy, lunacy, or mental incapacity, and the violation of certain provisions contained in statutes relating to marriage.

The canonical disabilities only make the marriages voidable, and not ipso facto void, until sentence of nullity be obtained; and such marriages are esteemed valid for all civil purposes, unless sentence of nullity is actually declared during the lifetime of the parties.(a) Civil disabilities make the contract void ab initio, because the parties are incapable of contracting; and if persons subject to the latter disabilities come together, it is a meretricious and not a matrimonial union.(b) Within this class must now be included the marriages *of

[ *155 ] persons within the prohibited degrees of consanguinity

and affinity which took place after the 31st August, 1835.(c)

Consanguinity is relationship by blood, and is either lineal, as between father and daughter, grandson and grandmother, or collateral, as between brother and sister, uncle and niece.

Affinity arises in consequence of marriage, for husband and wife being accounted one person, the blood relations of each of the married couple are related to the other by affinity.(d)

New Statute as to Marriages within the prohibited Degrees.]-By

(a) See post, as to void and voidable mar. linea est series personarum a communi stiriages.

(b) 2 Phill. R. 19.

(c) 5 & 6 Will. 4, c. 54.

(d) Incestas nuptias contrahunt propriores cognati et affines. Cognati sunt, qui a com. muni stipite descendunt sive ex justis nuptiis ea cognatio sit, sive ex illegitimo coitu sive ex contubernio servili. Affinitus est necessitudo inter conjugem unum et alterius familiam. Cognatio ex gradibus et lineis judicatur. Gradus est distantia cognatorum,

pite descendentium eaque vel recta quæ genitores et genitos; vel obliqua, quæ a latere junctos complectitur. Heineccius, Elem. Jur. Nat. lib. 1, tit. 10, de Nuptiis, ss. 152, 153. Affinitatis nulli sunt gradus quia nullæ generationes; tamen recepta regula; quoto gradu mihi aliquis cognatus est, eodem gradu ejusdem conjux mihi affinitate juncta censetur. Heineccius, Elem. Jur. Nat. lib. 1, tit. de Nuptiis, s. 156. Ut vir et uxor unam et eandem inter se carnem habere existe

the law, as altered by the recent statute, (e) all marriages before the 31st August, 1835, between persons within the prohibited degrees of consanguinity, are voidable during the lives of both parties. But marriages before that time, within the prohibited degrees of affinity, cannot be annulled unless a suit was then pending. And all marriages celebrated after 31st August, 1835, between persons within the prohibited degrees of consanguinity and affinity, are made absolutely

void.

The statute 5 & 6 Will. 4, c. 54, recites that "marriages between persons within the prohibited degrees are voidable only by sentence of the ecclesiastical court, pronounced during the lifetime of both the parties thereto, and it is unreasonable that the state and condition of the children of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period, and it is fitting that all marriages which may hereafter be celebrated *between persons within the prohibited degrees of consanguinity or affinity should be ipso facto void, and not [ *156 ] merely voidable; and then enacts, that all marriages which shall have been celebrated before the passing of this act between persons being within the prohibited degrees of affinity shall not hereafter be annulled for that cause by any sentence of the ecclesiastical court, unless pronounced in a suit which shall be depending at the time of the passing of this act (31st August, 1835); provided that nothing hereinbefore enacted shall affect marriages between persons being within the prohibited degrees of consanguinity." It further enacts,(f) that all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void to all intents and purposes whatsoever. It provides(g) that nothing in this act shall be construed to extend to that part of the United Kingdom called Scotland.(h)

mentur; et ita quo quisque gradu consan-
guinitatis quemque contingit, codein ejus
uxorem continget affinitatis gradu, quod
etiam in contrariam partem eâdem ratione,
valet. Reformatio Legum, tit. 22, c. 1.
(e) 5 & 6 Will. 4, c. 54.
(f) Sect. 2.

(g) Sect. 3.

(h) This act does not alter or define the degrees of affinity and consanguinity, which are left as before; although something passed in the debates in the House of Commons, with respect to its being advisable to introduce a measure for that purpose. Hans. Parl. Deb. 30th vol. 3d ser. 949. It was proposed in the House of Commons, to except from the second clause of the act the case of a man desiring to marry the sister of his deceased wife. In the debates upon the bill, it was observed with respect to what are called the prohibited degrees, there were some doubts whether these degrees were such as were prohibited by Scripture, as, for instance, where the husband marries the sister of his former wife. Our courts of law, ecclesiastical and common, have decided that a marriage within those degrees was illegal.

Hans. Parl. Deb. 28th vol. 3d scr. p. 204. Sir William Follett said, "that he believed that the particular relation stood within the same degree as many others condemned by the marriage law, as the brother's wife or the niece of the deceased wife. And although many were of opinion that the case of the sister of a deceased wife came not within the prohibited degrees, he could not help think ing, though undoubtedly many marriages of that kind had proved happy, it would lead to great evil were it to be understood that such marriages would be valid." Hans. Parl. Deb. 30th vol. 3d ser. 792. 948-952. See post, p. 166, n. (e)

Doubtful whether marriages of Jews within the above act.]-In consequence of doubts which had arisen, whether the marriages of Jews are or are not affected by the above act, a bill was introduced, in June, 1837, but did not pass, in the House of Commons, by Mr. Buxton and Dr. Lushington, for removing such doubts. It recited the above act, and that the marriages of persons professing the Jewish religion have been excepted, by divers acts of parliament passed for the regulation of marriage, from the ope