« ForrigeFortsett »
*91 I should infer, from the case of *Wyckoff v.
Boggs,* to be the rule in New-Jersey, where the marriage contract is under similar legislative regulations. It is the doctrine judicially declared in New-Hampshire, Pennsylvania, and Kentucky, and by statute in Alabama and Vermont; and the marriage is held valid as to the parties, though it be not solemnized in form, according to the requisitions of their statute law.b There are probably statutory provisions of a similar import in other states of the Union; and wherever they do not exist and specially apply, the contract is, everywhere in this country, (except in Louisiana,) under the government of the English common law.c
(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
* 2 HaUted's Rep. 138. See also the opinion of Ford, J., 6 Ibid. 20.
b 2 JVew Hampshire Rep. 268. 3 Marshall's Rep. 370. 2 Watt's Perm. Rep. I. Toulmin's Dig. of the Law of Alabama, p. 576. Revised Statutes of Vermont, 1839, p. 318. In Pennsylvania the statute imposes a penalty on a magistrate or minister for marrying a minor or an apprentice without the parents' or the master's consent.
« The statutory regulation of marriage in Ohio, is essentially the same. Statutes of Ohio, 1831. The statute in that state regulating marriages provides, that parties of the ages of 18 and 14 may marry, but if the male be under 21 and the female under 18, the previous consent of the parent or guardian is requisite; and there must also be a publication of buns on two several days of public worship in the presence of the congregation, or else a license from the clerk of the county court where the female resides, and the person who marries the parties without such publication and license, forfeits a heavy penalty. In North Carolina, a succession of statutes, in 1715, 1741, 1766, and 1778, regulated marriages, and Tennessee adopted the statute law of her parent state; and it has been adjudged that if a marriage be celebrated without the license prescribed by statute, or, in its absence without a lawful certificate of the publication of the bans of marriage, it is an illegal and void marriage, at least in respect to a public prosecution for bigamy. Bashaw v. Tennessee, 1 Yerger's Rep. 117. To marry persons without a license from 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, p. 231, 649. Hotchkiss's Dig. 1845, p. 329.
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.* An exception to this rule is stated by Huberus,b who maintains that if two persons, in order to evade the law of Holland, which requires the consent of the guardian or curator, should go to Friezeland, or elsewhere, where no such consent is necessary, and there many, and return to Holland, the courts of Holland
* Scrimshire v. Scrimehirc, 2 Hagg. Cons. Rep. 407, 419. Harford v. Morris, 2 Hagg. Cons. Rep. 423—436. Lord Tenterden, in Lacon v. Higgins, 3 Starkie's N. P. Cases, 178. But it in not universally true, without exception, that a marriage not valid by the lex loci, is also invalid every where, for this in certain cases of insuperable difficulty might prevent a subject from marrying abroad. Lord Stowell, in 2 Hagg. Cons. Rep. 390, 391. Shelford on Marriage and Dieorce, 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 recognise such marriages. Warrender v. Warrender, cited in a note to § 114, to 9 Bligh. 112. Story on the Conflict of Laws, § 113 —114.
. De Conflictu Legum, sec. 8. Bouheir, 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, p. 115,116, 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 Huber, 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 Huber, and the English courts carry the doctrine in support of ■neb. fraudulent marriages as far as any of the Massachusetts decisions to which the learned author refers.
would not be bound by the law of nations to hold the marriage valid, because it would be an act of ad eversionem juris nostri. In opposition to this opinion,
we have the decision of the court of delegates in *92 England, in 1768, in *Compton v. Bearcroft*
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,b his opinion in favor of the doctrine in Huberns, 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," 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* 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
« Buller's N. P. 114. 2 Hogg. Consist. Rep. 443, 444, S. C. b Robinson v. Bland, 2 Burr. Rep. 1077.
e 2 Hagg. Consist. Rep. 428—433. Doe v. Vardill, 3 Barnw. $ Cres$. 438, 8. P.
d Hagg. Consist. Rep. 412—416. See also, Story's Commentaries on the Conflict of Laws, p. 112—115, and Lord Stowel in Dalrymple v. Dalrymple, 2 Hagg. Cons. Rep. 59. J. Voet ad Pand. 23, 2, 4. Merlin's Rep. tit. Marriage, sec. 1.
contract was not to be tested by the laws of the country where it was made. This doctrine of the English ecclesiastical courts was recognised by the supreme court of Massachusetts, in Medway v. Needham ;a 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 deemed valid, if it be valid ac- *93 cording 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 mis 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.» This comity has been carried so far as to admit the legitimacy of the issue of a person who had been divorced a binculo 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.0
• 16 Mas: Rep. 157. Putnam v. Putnam, 8 Pick. Rep. 433, S. P.
b See also Greenwood v. Curtis, 6 Mass. Rep. 358. Huber. de Conf. lag. lib. 6, fit. n. 8. Heinec. Elem. Jur. Nat. et Gent. lib. 2, c. 2, sec. 41, 8. P.
< West Cambridge v. Lexington, I Pick. Rep. 506. A person was disabled from re-marrying by the laws of Kentucky, and yet his marriage in Tennessee was held valid there, for penal laws have no exterritorial 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 was under a legal incapacity to contract by the law of the domicil. Huberos, De Conflict* Lcgum, lib. 1. tit. 3, sec. 8, also admits that an incestuous connexion formed abroad is not to be recognized; nor will the Eng
Vol. II. 9
lish courts, while they recognize the validity of foreign marriages, admit the legal consequences abroad of a foreign marriage, such as the legitimation of antenuptial offspring. Doe v. Vardill, 5 Barnw. dj- Cress. 438. See Infra, 209. The Massachusetts Revised Statutes of 1835, 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 Francais, 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 Francais, tom. i. Nos. 118 aud 576. Repertoire de Jurisprudence, tit . Loi, sec. 6. It was testified by the French consul at London, in Lacon v. Higgins, 2 Dowland <J- Ryland ff. P. Cases, 38, that a marriage in France, contrary to the prescribed solemnities in art. 63, 64, 74, of tho Code Napoleon, would be absolutely null and void. Mr. Justice Story, in his Com. on the Conflict of Laws, p. 117, 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 domestie, relating to the subject. (1 ) That where there is a marriage in a foreign country, and an express nuptial contract concerning personal property, it will be sustained every where, unless it contravenes some positive rule of law or policy. But as to real property, it will be made subservient to the lex rei sita. (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 every where, but not the real property. (4.) The matrimonial domicil governs as to all acquisitions present and future, if there be no change of domicil. If there be, then the law of the actual domicil will govern as to future acquisitions, and the law rei sita as to real property. Story's Com. on the Conflict of Laws, p. 160, 161. The English law, according to Lord Eldon, (Lashley v. Hogg, cited in Robertson's Appeal Cases, p. 4. Selkrig v. Da vies, 2 Rose Bank Cases, p. 99,) is, that