by the law of the home state of the persons involved. This obscure definition will shortly be elucidated.

MARRIAGE

In considering marriage, we immediately run into the broad statement in the language of the cases that a marriage good where celebrated is good everywhere. Without more this appears to strike down the tentative criterion just offered. We must, however, go behind this general statement to ask what it is which makes a marriage good where celebrated. Courts differ in their characterizations of the marriage relation. Some call it a mere civil contract, while others say it is a status." Whatever they say, all courts agree that it is very different from an ordinary commercial contract. The fact is that marriage is composed legally of two elements. First, it is a contract, in that there are certain forms and expressions of agreement and simple contractual capacities. Second, it is a "voluntary union of one man and one woman for life, to the exclusion of all others." " If a man and woman, who are domiciled in one state, where they intend to live and raise their children and become a part of the community, go into a foreign state (because, for instance, the bride's mother lives there for her health) and are married, which law should govern the marriage, that which from the fact of domicil is going to protect them for their lives, or that where the ceremony is performed? Exclusive use of either law for both elements of the marriage would lead to practical difficulties. If the law of domicil exclusively were to regu

3 Jackson v. Jackson, 82 Md. 17, 33 Atl. 317 (1895); Ross v. Ross, 129 Mass. 243, 247 (1880); Lando v. Lando, 112 Minn. 257, 127 N. W. 1125 (1910); State v. Hand, 87 Neb. 189, 126 N. W. 1002 (1910); Harral v. Harral, 39 N. J. Eq. 279 (1884). See BISHOP, MARRIAGE AND DIVORCE, 6 ed., 355.

4 Nelson v. Brown, 164 Ala. 397, 51 So. 360 (1910); Coad v. Coad, 87 Neb. 290, 127 N. W. 455 (1910). See DICEY, CONFLICT OF LAWS, 3 ed., App. 794, note 12.

People v. Case, 241 Ill. 279, 89 N. E. 638 (1909); Taylor v. Taylor, 108 Md. 129, 69 Atl. 632 (1908); Coe v. Hill, 201 Mass. 15, 86 N. E. 949 (1909); Levey v. Levey, 88 Misc. 315, 150 N. Y. Supp. 610 (1914). See DICEY, op. cit., App. 796, note 12.

Hyde v. Hyde, L. R. 1 P. & D. 130 (1866); Estate of Klipfel v. Klipfel, 41 Colo. 40, 92 Pac. 26 (1907); State v. Bittick, 103 Mo. 183, 15 S. W. 325 (1891).

late whether these parties may contract a valid marriage in the foreign state, this latter state would not be politic in allowing a marriage between foreigners without inquiring into the minutiae of the home law of capacity to contract; or these parties on their return might find themselves in an unhappy legal relation, if any. Therefore, as to the many questions of mere contractual capacity, the law is now pretty clearly decided that the balance of convenience favors the lex loci contractus as opposed to the law of domicil.

But there is the second legal element of marriage of vital and almost exclusive concern to the sovereign of the domicil of the parties an element deeper than a matter of simple contract. Shall this be governed by the law of the place where the marriage is celebrated? If so, it would be necessary only to go outside the state of domicil to evade a difficulty of serious concern to that state, and thus make the home law ridiculous. This view, therefore, is also undesirable if pushed to its extreme.

If parties by going to a foreign state do in fact evade some merely administrative requirement of their home law, it would be absurd for the home law to declare, on a proper issue, that no marriage had arisen. But if the policy of the home state, for reasons closely touching the morals and the spiritual health of the state, would not allow such a marriage, then it would be equally shocking to say that the state where the parties had momentarily stopped could defeat the home law's purposes.

Thus, if neither law can with convenience and fairness control the forms and the relation created by the forms, some sort of compromise is necessary as a practical matter. The clue to this compromise is to be found in the line between provisions of a state law which are purely matters of regulation and supervision, and those which go deeper into the question of the public policy and morals of the state where the parties are to live.

The home state (i.e., the state of domicil) should be the one to decide whether a couple are to live together as man and wife under its laws. However, in deciding this question, it will for obvious practical reasons refuse its sanction to a foreign contract of marriage only where there is a deep-seated social policy demanding such refusal. The cases of refusal in modern times of standardized public sentiment will be so few in fact, that the

digests and texts usually generalize the law by saying, as noted already, that a marriage good by the lex loci contractus is good everywhere, and tag on the cases of refusal as exceptions to this rule. This general statement, I submit, is a name for an incidental result, and conceals the fact that the home law examines, so to speak, each foreign marriage involving its domiciliaries. In the great majority of cases, the examination is satisfactory and therefore the process of examination makes no noise. In cases of refusal, ordinarily called exceptional, the operation is truly no exception, but only a different conclusion by the home law. Thus all cases are brought into the rule that the home law must be satisfied, and the apparent exceptions are the strongest indications of what happens silently in every case. The usual rule found in the books, which by implication denies the home law any function except in certain cases of gross irregularity, is as misleading as to say that the digestive organs are involved only when they refuse to assimilate particularly poisonous food. An ignorant observer might well say of man's metabolism, that everything which he can get in his mouth he can assimilate, leaving plum-pudding and salt pork - the incest and polygamy of the internal commonwealth - for exceptions. If I may proceed with my vulgar analogy, it is true that to be eaten, food must be put in the mouth, and this is local capacity. But granted such capacity, who will say that the machines lower down are not active in every case, and really make the final decision, whether satisfied or not?

I therefore conclude that the marriage must be agreeable to the law of the domicil, or the relation does not, as a matter of theoretical common law, exist universally. If this is true, the law of the domicil controls the creation of marriage, and having a grip on it then, it holds on until the domicil is changed or the relation is dissolved.

Recognition of marriage good by the home law follows whenever it is called into question in another jurisdiction using the same system of law. If the marriage is principally of interest to its home law, another sovereign should give it the fullest recognition consistent with the local public policy. Among com

7 See DICEY, op. cit., 2 ed., 477-478.

mon-law jurisdictions the slogan of the conflict of laws has never been "dog eat dog," but rather, "live and let live." The local law must be supreme for all local purposes, but to secure local social interests it is not necessary to tamper with the foreign marriage at all. The court in Polydore v. Prince expressed the practical operation of this doctrine as neatly as possible, obiter, when it said:

8

"If a Turkish or Hindoo husband were traveling in this country with his wife, or temporarily resident here, we should, without hesitation, acknowledge the relation of husband and wife between them; but the legal preeminence of the husband as to the acts done here, would be admitted only to the extent that the marital rights are recognized by our laws, and not as they are recognized by the law of his domicil."

Mr. Beale explains this by dividing status into protecting static rights or incidents, on the one hand, and the indestructible residuum of a Platonic idea on the other. "The fact is," he says, "that the static right itself remains unchanged, though the protecting rights change; and it would remain equally unchanged though they ceased altogether."

11

What has been said about the validity of a marriage covers the question of its dissolution (divorce) or its nullity. Divorce is premised on a valid marriage status. Therefore, only the law which digested the marriage can make a valid decree, and this is generally followed in the decisions,10 with some notable exceptions, a discussion of which is rather too far afield here.11 A decree of nullity, however, raises the reverse of the medal whose obverse is creation of a valid marriage. There we found that marriage is both a contract to be performed by local law and a relation of social concern to the home law. As it is subject to attack on either of these flanks in its inception, nullity raises no new question. In fact, the question is whether a marriage ever has been created. A suit to annul a marriage could

8 Ware, *402, *409 (D. Me., 1837).

9 I BEALE, SUMMARY OF THE CONFLICT OF LAWS, 167.

10 See DICEY, op. cit., 256. Wilson v. Wilson, L. R. 2 P. & D. 435 (1872); Le Mesurier v. Le Mesurier, [1895] A. C. 517.

11 E.g., Haddock v. Haddock, 201 U. S. 562 (1906).

therefore be brought in the jurisdiction where the contract was formed, if the ground is of that nature; or it could be brought in the domicil if the ground put forward savored of the home law's disgust.

It would seem, therefore, that marriage as a relation is the province of home law and is therefore a status.

CAPACITY

In the old civil law and in modern continental codes, capacity is called a status - that is, a man is or is not capable by his personal law, and if he is, it is for all purposes in all places. In modern common law, it is beyond dispute that, with the possible exception of capacity to enter marriage in England, the law of the place of contracting, and not the law of the person's domicil, decides whether a person is or is not capable.12 But there is considerable authority which sticks to the old theory of domiciliary capacity.13 On principle, it would seem that capacity as a status could not stand up under the buffetings of commerce, and should therefore be controlled by the law of the place where the parties contract. In days of a slower commercial tempo, when contracts were limited to one state, it was well enough to say that the personal law of a tender youth, for instance, should protect him from the fruits of his own inexperience, even at the expense of upsetting an otherwise good piece of honest business. But when by reason of travel that same sort of transaction became more common, its abuse became proportionally less tolerable, and this change in the balance of convenience I believe to be the reason why capacity to contract commercially is, and should be, left to the law where the contract is made. Of course it is easier, too, for the parties to find the law of the place where

12 Worms v. De Valdor, 49 L. J. Ch. (N. S.) 261 (1880); Wright v. Remington, 41 N. J. L. 48 (1879); Baum v. Birchall, 150 Pa. St. 164, 24 Atl. 620 (1892); Bowles v. Fields, 78 Fed. 742 (D. Ind., 1897). See Male v. Roberts, 3 Esp. 163 (1800); Milliken v. Pratt, 125 Mass. 374 (1878); Bell v. Packard, 69 Me. 105 (1879). See also J. H. Beale, "Dicey's 'Conflict of Laws,'" 10 HARV. L. Rev. 168, "The Progress of the Law, 1919-1920: The Conflict of Laws," 34 HARV. L. REV. 50, 59-60. See 15 HARV. L. REV. 315; 21 ibid., 365.

13 Guepratte v. Young, 4 De G. & Sm. 217 (1851). See WESTLAKE, PRIVATE INTERNATIONAL LAW, 6 ed., 40-43.