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This provision applies as well to such bodies formed previous to the adoption of the treaty, as those which are thereafter formed.

Treaty of commerce and navigation between France and

The Free Cities of Lu

beck, Bremen & Ham-Mar. 4, 1865, Art. XVIII., 9 De Clercq, 187. burg,

Grand Duchy of Meck

lenburg Schwerin,

"

(extended to the) Grand June 9, 1865, XXI., 9 Id., 295.
Duchy of Mecklen-

burg-Strelitz,

Turkish and Egyptian business corporations are authorized to exercise their powers in France. 7 De Clercq, 614.

See, also, imperial decrees of February 27, 1861, affecting the relations of France, Luxembourg and Portugal.

It would, however, hardly be wise to take such a rule as a general one, but better to leave corporations with the powers conferred by the domestic law only, except where such special treaties exist.

CHAPTER XXXIX.

MARRIAGE.

ARTICLE 546. "Marriage" defined.

547. Valid foreign marriages.

548. Void marriages.

549. Capacity and consent.

550. Requisite forms.

551. Public ministers and consuls may solemnize marriages.

552. Criminal offenses.

553. Evasion of home law.

554. Personal, marital and parental rights.

555. Polygamy.

556. Legitimacy.

"Marriage" defined.

546. The term "marriage," as used in this Code, means the union, voluntary and for life, of one man with one woman.

Lawrence's Commentaire sur Wheaton, vol. III. See Revue De Droit International, &c., 1870, No. 1, p. 53.

"Marriage is one and the same thing, substantially, all the world We regard it as a wholly different thing, a different status

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from Turkish or other marriages among infidel nations." Lord Brougham, in Warrender v. Warrender, 2 Clark & Finnelly's Rep., 532.

The definition of marriage, as understood by the law of nations, given in Rock v. Washington, 19 Indiana (Kerr) Rep., 53, is as follows:

Marriage is the union of one man and one woman, so long as they both shall live, to the exclusion of all others, by an obligation which, during that time, the parties can not, of their own violation and act, dissolve, but which can be dissolved only by authority of the State.

And it is there added, that nothing short of this is meant when it is said that marriages, valid where made, will be upheld in other States (Citing Noel v. Evans, 9 Indiana, 37; Story's Conflict of Laws, ch. 5 Wheaton's Law of Nations, 137.)

See Hyde v. Hyde, Law Rep., 1 Probate and Divorce, 130. In this case, the court were in error in supposing, according to the testimony, that a polygamous marriage is valid in Utah. By the act of Congress of 1862, such marriages are illegal. See Lawrence's Commentaire sur Wheaton, vol. III., quoted in Revue de Droit International, &c., 1870, No. 1, p. 57. Valid foreign marriages.

547. Subject to the provisions of Part VI., on the ADMINISTRATION OF JUSTICE,' a marriage, valid according to the law of the place where it is contracted, is valid everywhere, and the issue of such a marriage is everywhere legitimate.

This, in so far as it relates to the form of marriage, is the general doctrine, supported by all authorities. And it applies as well to transient as to domiciled persons. 1 Bishop on Marriage and Divorce, § 353.

By the French law, the rule is modified by the application, together with it, of the principle that the laws concerning the status and capacity of persons, control Frenchmen, even when resident in foreign countries. Felix, Droit International, vol. 2. p. 367.

But there is considerable disagreement of opinion as to what excep tions should be allowed to this general rule. The following have each the sanction of some authority:

1st. Polygamous marriages. These are excluded by the definition in Article 546. Such obligations of the married state as it may be proper to impose upon the parties to a polygamous union, when the case arises in a Christian country, are provided for in Article 555.

2nd. Marriages which are incestuous by the law of the place where they are drawn in question. Ponsford v. Johnson, 2 Blatchford's U. S. Circuit Ct. Rep., 51; Story on Conflict of Laws, § 87. But Parsons suggests, that a question might be made whether it would be held incestuous, so far as to avoid the marriage, if the parties were only within the degrees prohibited by the law of the State in which the question arose, or if they must have been too near to marry by the law of the civilized world. 2 Parsons on Contracts, 599. And Shelford (on Marriage and Divorce, 127, 7.) as well as Bishop (on Marriage and Divorce, vol. 1, §

389,) intimates the same opinion. Huberus, as quoted by Story, (Conflict of Laws, $ 85,) says, that "a foreign marriage would be void if it were a case of incest within the second degree by the law of nations." It should seem best to disregard this exception, beyond the cases covered by Article 552.

3rd. Personal incapacity. Savigny supposes (§ 379) that the personal capacity of the wife is to be judged according to the law of her home. Westlake submits, that from those bars which depend on what is called incapacity, whether absolute, as from Romish orders, or relative, as from degrees of affinity, the parties must be free both by the law of the place where the marriage is celebrated, and by that of the husband's domicil; that if they are so free, their marriage will be good, always and everywhere.

4th. Opposition of parents or guardians. It is the opinion of Westlake that the lex loci contractus may reasonably adopt any consent of parents or guardians, required for the marriage of either party in his or her domicil, as the condition without which it will not give binding force to the forms of the contract. The English courts, however, have persevered in maintaining that no other consents than those which the lex loci contractus demands for the marriage of its own subjects, are necessary for the marriage of foreigners celebrated within its jurisdiction. Westlake, Private Intern. Law, 325.

5th. Informal solemnization. Savigny thinks, that where an inhab itant of a State which requires religious ceremonies of a marriage, forms a civil marriage in a foreign country, according to its laws, this is not enough, on the ground that the laws of his domicil have a moral and religious basis, and have a coercive character. The marriage ought to be celebrated anew, according to the religious forms of the man's own domicil. Woolsey, Intern. Law, $ 74.

But the settled rule in England and the United States is, that the solemnities are sufficient, if conformable to the law of the place of solemnization.

6th. Marriages contracted abroad, in evasion of the law of the domicil. Huberus, cited by Story, (Confl. of Laws, § 85,) says, that where persons belonging to one country, go into another to be married, merely to evade the laws of their own country, the marriage is void, although it be good by the law of the place where it is celebrated. Parsons inclines to favor this principle, although he admits the settled rule of England and the United States to be the contrary; and so it is stated by Kent. (2 Commentaries, 92.) The conflict might perhaps be reconciled, by making a distinction between evasion of the law of capacity and evasion of the law of solemnization. See Story, Conflict of Laws, § 86. If this exception were allowed at all, it ought not to prejudice the innocent party, where the intent of evasion existed in the mind of one party only. Ponsford v. Johnson, 2 Blatchford's U. S. Circuit Ct. Rep., 51.

Besides these exceptions, there are others, vaguely stated by some writers, such as that the lex loci contractus should not prevail, to the prejudice of another, or where it works manifest injustice, or is contra

bonos mores, or is repugnant to the settled principles and policy of the lex fori.

The six exceptions above stated are all that seem worthy of notice. Most of them should be disallowed. The simple rule, which if adhered to, will solve many troublesome questions, and will tend towards harmonizing jurisprudence is, that, the efficacy of a transaction depends on the law of the place where it is had. It should seem proper to apply this rule to the subject of marriage, with as few exceptions as possible; and the effect of the provisions here presented will be only to except polygamous and incestuous marriages, and these so far only as they would justify the maintenance of a personal relation within a jurisdiction which makes such relation a criminal offense.

Where the validity of a marriage depends on the validity of a previous divorce, the rules of Part VI., on THE ADMINISTRATION OF JUSTICE, which forbid certain divorces, may result in an exception to the rule that the law of the place is the test of the validity of marriages.

Void marriages.

548. A marriage invalid according to the law of the place where it is contracted, is invalid everywhere; and the issue of such marriage is everywhere illegiti

mate.

Bishop states two exceptions to this rule, First, in the case of a victorious invading army, which carries with it the laws of its own country, for the protection of persons within its lines and general range of dominion. Secondly if parties are sojourning in a foreign country, where the local law makes it impossible for them to contract a lawful marriage under it, they may marry in their own forms, and the marriage will be recognized at home as valid. Bishop on Marriage and Divorce, Vol. I. $ 391, 392. The first is included by the form of statement above, and the definition of the "law of place" in Article 310; and the second exception should not be allowed.

Capacity and consent.

549 The last two articles include the age requisite for marriage, and the necessity for the assent of parents, guardians, or public authorities, and the conditions for obtaining or seeking their assent or giving opportunity for their dissent; and to all other questions of capacity, except those dependent on the valid ity of a previous divorce.

The continental rule is understood to refer these questions to the law of the domicil of the party in question, or (as in the case of France) to the law of his or her nationality.

The English law applies its own tests to determine the validity of a marriage abroad, of English subjects not domiciled abroad. Brook v. Brook, 7 Jurist, (N. S.,) 422; Shaw v. Gould, Law Rep., 3 House of Lords.

55; Fenton Livingston, 5 Jurist, (N. S.,) 1183. But the Article above proposed is in harmony with the general rules in reference to status, proposed in this Code. And Article 552 avoids marriages which are contrary to the positive law of the home of the parties, when drawn in question there.

Burge, after discussing the cases at some length, states the result of the opinions of jurists and the decisions of judicial tribunals to be: That the validity of the marriage, both in respect of the competence of the parties to contract, and of the solemnities with which they contract, is to be decided with reference to the law of the place in which the marriage is contracted; and, if it be valid secundum legem loci contractus, it must be deemed valid in every other place, if it do not violate the law of nature, public morals, or the policy or institutions of that State in which its validity is sought to be established. Burge on Foreign and Colonial Law, vol. I., p. 199.

It was held in Kinnaird v. Leslie, (Law Rep., 1 Common Pleas, 359,) that an attainder inflicted in one country ought not to affect the validity of a marriage subsequently contracted by the attainted person in a foreign country with an innocent woman who may not have known of the attainder.

Requisite forms.

550. Except in the cases provided for in the next article, those forms of celebrating marriage which are optional or obligatory for the members of a nation, are equally optional for foreigners, and equally obligatory for them unless dispensed with by the law of the place.

This is understood to be the generally established rule.

It might be well to add such a saving clause as the following:

If, however, any religious ceremony shall be obligatory for citizens, any foreigner who shall depose before a magistrate that he can not conscientiously submit to it, shall, after the completion of all other forms necessary, be admitted to marry any other foreigner or a member of the nation, by means of a written contract, signed by both parties, and deposited with such magistrate.

By the declaration of December 24th, 1867, between France and the Grand Duchy of Luxembourg, for the purpose of simplifying the legalization of papers produced by the subjects of either country on contracting marriage in the other, it was provided that such documents, certified either by the president of the tribunal or a judge de paix or his deputy, should be received by the civil officer of the other country, and no other legalization should be demanded, except in case of doubt respecting the authenticity of the document.

Public ministers and consuls may solemnize marriages.

551. Public ministers within the nations to which

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