system of jurisprudence of that state, even if one or both the contracting parties were not citizens of such foreign state.1 § 102 a. It has been well remarked by Mr. Burge: "This doctrine promotes, whilst that to which it is opposed, is inconsistent with those principles of mutual convenience, which induce the recognition of foreign laws. The obstacles to commercial intercourse between the subjects of foreign states would be almost insurmountable, if a party must pause to ascertain, not by the means within his reach, but by recourse to the law of the domicil of the person with whom he was dealing, whether the latter has attained the age of majority, and, consequently, whether he is competent to enter into a valid and binding contract. If the country, in which the contract was litigated, was also that in which it had been entered into, and if the party enforcing it were the subject of that country, it would be unjust, as well as unreasonable, to invoke the law of a foreign state for the benefit of the foreigner, and to deprive its own subject of the benefit of the law of his own state." 2 § 102 b. He adds: "It has been hitherto assumed, that, according to the law of the domicil, the person was a minor, and incapable of contracting, although he had attained the age, which in loco contractus constituted majority, and where, according to that law, he was competent to contract. In such a case, it has been submitted, that the lex loci contractus ought to be followed. It ought also to be followed, if the converse of that case occurred, and he had attained majority according to the law of his domicil, but was a minor according to that which prevailed in loco contractus. It is true, in the latter case, the party was subject to no greater liability than he would have incurred in the place of his domicil. But if the principle be correct, that the lex loci contractus ought to determine the validity of a contract when that validity depends on the capacity of the contracting party, it must be uniformly applied, whether the law prevailing in the domicil be that which capacitates or incapacitates. For it would not be reasonable, that two different laws should be applied to one and the same contract, and that the liability of one of the parties should be decided by 1 Mr. Justice Bullard, in Andrews v. His Creditors, 11 Louis. R. 464; ante, § 95, note 3, § 96 a. 2 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 4, p. 132. the lex loci contractus, and that of the other by the lex loci domicilii."1 § 103. (3). Hence we may deduce, as a corollary, that in regard to questions of minority or majority, competency or incompetency to marry, incapacities incident to coverture, guardianship, emancipation, and other personal qualities and disabilities, the law of the domicil of birth, or the law of any other acquired and fixed domicil, is not generally to govern, but the lex loci contractûs aut actûs, the law of the place where the contract is made, or the act done. Therefore, a person, who is a minor, until he is of the age of twenty-five years by the law of his domicil, and incapable, as such, of making a valid contract there, may nevertheless in another country, where he would be of age at twenty-one years, generally make a valid contract at that age, even a contract of marriage.2 § 104. (4). Personal disqualifications, not arising from the law of nature, but from the principles of the customary or positive law of a foreign country, and especially such as are of a penal nature, are not generally regarded in other countries, where the like disqualifications do not exist. Hence, the disqualifications, resulting from heresy, excommunication, Popish recusancy, infamy, and other penal disabilities, are not enforced in any other country, except that, in which they originate. They are strictly territorial.* So, the state of slavery will not be recognized in any country whose institutions and policy prohibit slavery.5 § 105. (5). In questions of legitimacy, or illegitimacy, the law of the place of the marriage will generally govern, as to the issue subsequently born. If the marriage is valid by the law of that place, it will generally be held valid in every other country, for the purpose of ascertaining legitimacy and heirship. If invalid there, it will generally (if not universally) be held invalid in every other country.6 § 105 a. (6). As to issue born before the marriage, if, by the law of the country where they are born, they would be legitimated 1 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 4, p. 133. * Ante, § 75, 79, 80, 81, 82. See also, Pearl v. Hansborough, 9 Humphreys, R. 426. Ante, § 91 to § 96. * Co. Lit. 79 b, Harg. n. 44; ante, § 96. • Ante, § 79, 80, 81, 86. Ante, § 91, 92, 94, 95. by the subsequent marriage of their parents, they will by such subsequent marriage (perhaps in any country, but at all events) in the same country, become legitimate, so that this character of legitimacy will be recognized in every other country. If illegitimate there, the same character will belong to them in every other country.1 § 106. (7.) No nation being under any obligation to yield up its own laws in regard to its own subjects, to the laws of other nations, it will. not suffer its own subjects to evade the operation of its own fundamental policy or laws, or to commit frauds in violation of them, by any acts or contracts made with that design. in a foreign country; and it will judge for itself, how far it will adopt, and how far it will reject, any such acts or contracts. Hence the acts of prodigals, of minors, of ïdiots, of lunatics, and of married women, escaping into foreign countries, are not to be deemed as, of course, absolutely obligatory, even if sanctioned by the foreign law, unless the laws of their own country adopt such foreign law, as a rule to govern in such cases.2 Hence, too, a person born before wedlock, who in the country of his birth is deemed illegitimate, may not, by a subsequent marriage of his parents in another country, by whose laws such a marriage would make him legitimate, cease to be illegitimate in the country of 1 Ante, § 87, 87 a; Munro v. Saunders, 6 Bligh, R. 468. An apt illustration of this rule may be found in the present law of France. By that law, a marriage contracted in a foreign country between Frenchmen, or a Frenchman and a stranger, is valid, if celebrated according to the forms used in that country, provided, it is preceded by a proper publication of banns, and the Frenchman does not contravene the other provisions of the French law. Upon this law Toullier remarks, that the conditions, required to be complied with, are those of the code respecting the contract of marriage; for as the laws respecting the person follow a Frenchman everywhere, it results, that even in a foreign country he is held to conform to the French laws relative to the age of the contracting parties, their family, and the impediments to marriage. 1 Toullier, Droit Civil François, art. 575, p. 484. So that French minors, who are incapable of contracting a marriage in France, are disabled everywhere, even though the marriage would be good by the law of the place where the marriage is celebrated. The English and American courts would hold such a marriage good. Code Civil, art. 144, 148, 170; Merlin, Répert. tit. Loi, § 6, n. 1. See also, 2 Kent, Comm. Lect. 26, p. 93, note, 3d edition. The doctrine of France, in this respect, is but an illustration of the general rule, prescribed by the Civil Code of France, (art. 3,) that the laws respecting the state and condition of Frenchmen govern them, even when resident in a foreign country. Ante, § 54. his birth.1 Hence, also, if a marriage is by the laws of a country indissoluble, when once contracted between its own subjects, they may not, by a mere removal into another country, at least without a change of domicil, be deemed capable of contracting a new marriage after a divorce, lawful by the law of the place to which they have removed.2 In short, every nation, in these and the like cases, will govern itself by such rules and principles as are best adapted in its own judgment to subserve its own substantial interests, and to uphold its own institutions, as well as to promote a liberal intercourse, and a spirit of confidence and ́ reciprocal comity with all other nations. But this subject will be more fully considered in the succeeding chapters. CHAPTER V. MARRIAGE. [* § 107. The general subject of marriage to be considered. 108. Marriage is a contract, and something more. § 109-112. Lord Robertson's exposition of the relation. 112 a. Discussion of the nature of the relation by the English law. § 113. The general rule is that the validity of marriage depends upon the law of the place of solemnization. § 113 a. The exceptions to the rule are cases of polygamy and incest, and those against public policy. 114. These exceptions are founded upon religion and state policy. 114 a. What is incest each nation must decide for itself. § 114 b. Great contrariety of opinion among different writers and nations. 114 c. The English courts declare marriages incestuous by their law void, wherever celebrated, so far as concerns English subjects. § 114 d. The rule as declared by the House of Lords. 115. In America the rule is less stringent, especially as to affinity. 116. By what law shall incest be defined? 116 a. The local law of incest not evaded by casual marriage abroad. 117. Confusion resulting from diversity of laws as to marriage. 118. Marriages in foreign countries rendered valid by law of domicil. § 119. All such marriages valid, if made with reference to law of domicil. 1 Ante, § 79, 87, 87 a, § 105 a. * See Rex v. Lolley, 1 Russ. & Ryan's Cases, 237; Tovey v. Lindsay, 1 Dow, R. 124; Beazley v. Beazley, 3 Hagg. Eccl. R. 639; McCarthy v. De Caix, 1831, 2 Russ. & Mylne, R. 620. But see Warrender v. Warrender, 9 Bligh, R. 89; post, § 215 to 231. § 120. English subjects carry their own laws of marriage into Pagan and other countries. § 121. Statement of some difficulties arising on this subject. § 122. Always valid if celebrated according to law of place. § 122 a. Opinion of John Voet against marriages otherwise solemnized. § 122b. The solemnities to be according to law of the place. § 123. Marriages celebrated abroad to evade law of domicil often questioned. § 123 a. Such marriages valid in England and America. § 123 b. This exception to general rule recognized on grounds of policy. § 124. Distinction between the English and American rule upon the question. § 124 a. Further discussion of the question. § 124 b. General summary of the law upon the subject. § 107. HAVING treated of the capacity and incapacity of persons, as affected by foreign law, and especially in relation to their capacity or incapacity to contract marriage in a foreign country,1 we shall next proceed to consider more fully the nature and effect of the relation of marriage contracted by and between persons, who are admitted to be sui juris, and to possess competent capacity everywhere. We shall then discuss the manner in which that relation may be dissolved, and the effect of such dissolution. § 108. Marriage is treated by all civilized nations as a peculiar and favored contract. It is in its origin a contract of natural law. It may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent and not the child of society; principium urbis et quasi seminarium republicæ. In civil society it becomes a civil contract regulated and prescribed by law, and endowed with civil consequences. In many civilized countries, acting under a sense of the force of sacred obligations, it has had the sanctions of religion superadded. It then becomes a religious, as well as a natural and civil contract; for it is a great mistake to suppose, that because it is the 1 Ante, § 79 to § 90. On this subject consult 1 Burge, Com. on Col. and For. Law, P. 1, ch. 5; § 1, 2, 3, p. 135 to p. 201. See Piers v. Piers, 2 House of Lords Cases, 331. * I have throughout treated marriage as a contract in the common sense of the word, because this is the light in which it is ordinarily viewed by jurists, domestic as well as foreign. But it appears to me to be something more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties; and in this view it has some peculiarities in its nature, character, operation, and extent of obligation, different from what belong to ordinary contracts. |