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. & 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 and 576. Repertoire de Jurisprudence, tit. Loi, sec. 6. It was testified by the French consul at London, in Lacon v. Higgins, 2 Dowland & Ryland N. P. Cases, 38, that a marriage in France, contrary to the prescribed solemnities in art. 63, 64, 74, of the 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 domestic, 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 site 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. Davies, 2 Rose Bank Cases, p. 99,) is, that if there be no special contract, the law of the actual domicil at the dissolution of the marriage, governs as to all the property, whether acquired before or after the change of the matrimonial domicil. But if there was no change of the matrimonial domicil, the law of that domicil governed the personal property, wherever acquired and wherever situated. This is also the law in Louisiana. Saul v. His Creditors, 17 Martin's Rep. 569, 603— 5; and it is a principle which best harmonizes with the analogies of the common law. Story's Com. 142, 143. The foreign jurists do not generally agree to these conclusions, but they insist that the change of domicil after marriage, does not change the law of the matrimonial domicil, as to past or future acquisitions. (Story's Com. 144–149.) But it is agreed that nuptial contracts follow the parties into foreign countries, and bind them. Murphy v. Murphy, 5 Martin's Rep. 83. Decouche v. Savatier, 3 Johns. Ch. Rep. 190. Story's Com. 155. If, however, the marriage takes place in a foreign country in transitu, and where the parties had no intention of fixing their domicil, the law of the actual or intended domicil of the parties governs the case as to the incidents of marriage; and it is the general rule, that if the husband and wife had different domicils when they married, the domicil of the husband became the true and only matrimonial domicil. Le Breton v. Nouchet, 3 Martin's Rep. 60. Ford's Curators v. Ford, 14 ibid. 574. This is the opinion of all the foreign jurists. Story's Com. 163-166. LECTURE XXVIJ. OF THE LAW CONCERNING DIVORCE. WHEN a marriage is duly made, it becomes of perpetual obligation, and cannot be renounced at the pleasure of either or both of the parties. It continues, until dissolved by the death of one of the parties, or by divorce. (1.) Of Divorce a vinculo. By the ecclesiastical law, a marriage may be dissolved and declared void ab initio, for canonical causes of impediment, existing previous to the marriage. Divorces a vinculo matrimonii, said Lord Coke,a are causa præcontractus, causa metus, causa impotentiæ seu frigiditatis, causa affinitatis, causa consanguinitatis. We have seen how far a marriage may be adjudged void, as being procured by fear or fraud, or contracted within the forbidden degrees. The courts in Massachusetts, Delaware, Ohio, North Carolina, Alabama, Illinois, and probably in other states, are authorized by statute to grant divorces causa impotentiæ; and in Connecticut, imbecility has been adjudged sufficient to dissolve a marriage, on the ground of fraud. The canonical disabilities, such as consanguinity, and affinity, and corporeal infirmity, existing prior to the marriage, render it voidable only, and such marriages are valid for all civil purposes, unless sentence of nullity be declared in the lifetime of the par a Co. Litt. 235, a. b Benton v. Benton, 1 Day's Rep. 111. Dane's Abr. of American Law, ch. 46, art. 9, sec. 14. Revised Laws of Illinois, 1833. *96 ties; and it cannot be declared void for those causes after the death of either party. *But the civil disabilities, such as a prior marriage or idiocy, make the contract void, ab initio, and the union meretricious. In New-York, it was adjudged, in Burtis v. Burtis, that corporeal impotence was not, under the existing laws, a cause of divorce, and that the English law of divorce on that point had never been adopted. The new French code will not allow such an allegation by the husband ;d and Toulliere condemns a decree of divorce, causa impotentiæ, which was pronounced in a 1 Blacks. Com. 434, 435. Bury's case, 5 Co. 98 b. 2 Phill. Rep. 19. b Elliott v. Gurr, 2 Phillimore's Rep. 16. Rex v. Wraxton, 4 Bar. § Adolph. 640. By the Massachusetts Revised Statutes, 1835, all marriages prohibited by law on account of consanguinity or affinity, or when the former wife or husband is living, or when either party was at the time insane, or an idiot, or between a white person and a negro, Indian, or mulatto, are declared to be absolutely void, without a decree of divorce, or other legal process; though, if the case be doubtful in point of fact, a libel for a divorce may be filed and prosecuted. So if persons marry under the age of consent, and separate during such nonage, and not cohabit afterwards, the marriage is void without any decree of divorce. Divorce a vinculo may be decreed for adultery or impotency in either party, or when either is sentenced to confinement in the state prison. The issue of any marriage declared null by decree, on account of consanguinity or affinity, or of any marriage between a white person and a negro, Indian, or mulatto, are to be deemed illegitimate. It is otherwise upon the dissolution of a marriage ⚫ on account of nonage, insanity or idiocy. So the issue is also legitimate if the marriage be dissolved for bigamy, provided the second marriage was contracted in good faith, and with the full belief that the former husband or wife was dead. So in Vermont marriages prohibited by law, on account of consanguinity or affinity, or on account of a former wife or husband living, are absolutely void without legal process or decree. A libel for the purpose may be filed in doubtful cases. If the marriage be declared void on account of consanguinity or affinity, the issue to be deemed illegitimate. See Revised Statutes of Vermont, 1839, p. 322; and I take the occasion to observe, that this new revised code of Vermont, does credit to the learning, judgment and taste with which it was prepared, digested and pubished. 1 Hopkins' Rep. 557. d Code Civil, art. 313. • Droit Civil Francais, tom. i. No. 525. France, in 1808, as contrary to the spirit of the code, and leading to scandalous inquiry. Since the New-York decision above mentioned, the jurisdiction of the court of chancery, on this subject, has been enlarged, and the New-York Revised Statutes have authorized the chancellor, on a suit before him by bill, to declare void the marriage contract; 1. If either of the parties, at the time of the marriage, had not attained the age of legal consent. 2. If the former husband or wife of the party was living, and the marriage in force. 3. If one of the parties was an idiot or lunatic. 4. If the consent of one of the parties was obtained by force or fraud. 5. If one of the parties was physically incapable of entering into the marriage state. All issues upon the legality of a marriage, except where it is sought to be annulled on the ground of the physical incapacity of one of the parties, are to be tried by a jury upon the award of a feigned issue.a It is further provided, that a marriage shall not be annulled for the first cause above mentioned, on the application of a party who was of legal age at the time of the marriage, or if the parties, after they had attained the age of consent, had for any time freely cohabited as *97 husband and wife. It may be annulled for the second cause on the application of either *party during the life of the other, but if it was contracted in good faith, and with the full belief of the parties that the former husband or wife was dead, the issue thereof shall be entitled to succeed to the estate of the parent, equally as legitimate children. It may be annulled for the third cause, on the application of any relative of the idiot or lunatic interested to avoid the marriage, or by his next friend. But any free cohabitation of husband and wife after the lunacy has ceased, will be a bar to the divorce; and the children of a marriage annulled on the ground of lunacy or idiocy, are entitled to succeed, as a N. Y. Revised Statutes, vol. ii. 142, sec. 20. Ibid. 175, sec. 45. |