will enable us to steer clear of most of the embarrassments attending the question; and at the same time to reconcile most, if not all of the conflict in the opinions of the leading jurists upon the subject. And unless this qualification is allowed, there is produced a state of anarchy and confusion upon the subject of this fundamental relation of society, whereby any state may be compelled to recognize the perfect validity and binding force of polygamous marriages. For polygamy is probably recognized, by the law of nature, if the majority of the peoples of the earth are allowed to determine that question by appeal to the past history of the And if the practice of the Hebrews were conclusive upon the matter, that will be found to bear in the same direction.]

race.

[* § 125. These incidents embrace personal capacity, rights of property, etc.

§ 126. The great diversity of laws existing in different countries.

§ 127. Law of domicil determines authority of husband.

§ 128. Statement of law of different countries.

§ 129. The conflict in the laws of two countries will illustrate the question.

§ 130. The French law is a community of estate, unless controlled by contract.

§ 131. There are other peculiarities of the French law.

§ 132. The husband is the head of the family and controls contracts.

§ 133. Contrast presented by English law stated.

§ 134. The property rights and personal power of wife suspended during coverture.

§ 135. The same contrast exists in the American States which derive their laws from different sources.

§ 135 a. The subject divides itself into the disabilities of the wife, and the property rights of both husband and wife.

§ 136. The disabilities of the wife attend wherever she goes.

§ 137. Where no change of domicil, her disabilities continue.

138. Foreign jurists not agreed upon the point.

139. The law of the existing domicil should govern.

§ 140. Many learned men contend for the lex rei sitæ.

§ 140 a, 141. The law of the actual domicil seems most to control.

§ 142. Confused opinions of some foreign jurists.

§ 143. How is the separate property of husband and wife affected by the marriage. 144. These questions arise where there has been no change of domicil and where there has been.

§ 145. How far the law of the place of celebration attaches to married relation.

§ 145 a. Antenuptial contracts affected by the law of domicil.

147. The law of domicil governs as to property rights of the parties.

§ 148–157. Different theories of different foreign writers.

§ 158. The result is, that as to all movables, and all property in the place of domicil at the time of marriage, the law of that place governs, and as to immovables in other countries, the lex rei sita will govern.

§ 159. This seems most in analogy to the principles of the common law.

160. What principle shall govern where there is a change of domicil. 161169. Conflict among foreign jurists on these points.

170. The law of Louisiana and of Scotland.

171. No decisions at common law. Lord Eldon's dictum. 171 a. Upon principle the law of domicil should govern. 171 b. This is now, practically, the law of England.

171 c. No other rule practicable in America.

§ 172. The question often discussed in Louisiana.

173. The embarrassment of such questions not relieved by former discussions. $174. The law of matrimonial domicil not carried to new domicil.

175. Reason and convenience favor this rule.

§ 176. The courts in Louisiana adopt this rule.

177. Even special contracts may only operate until change of domicil. 178. Special contract for community of estate will operate everywhere.

$179. But married persons cannot stipulate for the control of foreign law.

§ 180. Where the parties marry in one state, but intend to reside in another, the laws of the latter control.

181. This question is one of fact determinable by circumstances.

182. Foreign laws must yield to repugnant domestic policy.

§ 182 a. Validity of marriage settlements determined by law of domicil at their date. 183. General doctrines of Louisiana law prevail in America. 184. Antenuptial contract, if so intended, operates universally. § 185. If not so intended, will operate till change of domicil.

186. If no special contract, law of matrimonial domicil controls.

§ 187. When no change of domicil, same rule controls as to acquisitions before and after marriage, otherwise the law of new domicil controls subsequent acquisitions.

§ 188. These rules are subject to that which gives the law of actual domicil preeminence in cases of conflict.

189. No country is bound to give effect to foreign laws in conflict with its own settled policy.

§190. Tacit understandings of the parties have no legitimate force against positive law.

191. Many perplexing questions as to actual matrimonial domicil.

§ 192. Where the law of the place of celebration and of the domicil of the parties concur there is no difficulty.

§ 193. If not, the law of the place of intended domicil will control.

194199. The law of the domicil of the husband will control, unless some other is in the contemplation of the parties.]

§125. HAVING considered how far the validity of marriages is to be decided by the law of the place where they are celebrated, we are next led to consider the operation of foreign law upon the incidents of marriage. These may respect either the personal capacity and powers of the husband and wife, or the rights of each

in regard to the property, personal or real, acquired, or held by both or either of them during the coverture.1

§ 126. The jurisprudence of different nations contains almost infinitely diversified regulations upon the subject of the mutual obligations and duties of husband and wife, their personal capacities and powers, and their mutual rights and interests in the property belonging to, or acquired by each, during the existence of the marriage; and the task of enumerating all of them would be as hopeless as it would be useless. Before the Revolution there were in France a multitude of such diversities in the local and customary law of her own provinces; and in Germany, and the states of Holland and Italy, and the vast domains of Austria and Russia, the like diversities existed, and probably still continue to exist. Froland has enumerated a few of these diversities, and by way of illustrating the endless embarrassments arising from the conflict of laws of different provinces and nations; and his ample work is mainly devoted to a consideration of the mixed questions, arising from the conjugal relation, as affected by different laws in different provinces and nations. In some of the French provinces before the Revolution, a married woman had a separate power to contract; in others she had not. In Holland, under the old laws thereof the husband had the sole power to dispose of all the property of his wife; and she was entirely deprived of any power over it. In Utrecht her consent was necessary, if there were not children by the marriage; and in some other places, whether there were or were not children. In Utrecht the husband and wife were disabled from making donations to each other; in Holland they may or might make them. In some states there is a community

2

1 See on the subject of this chapter, 1 Burge, Comm. on Col. and For. Law, 1, ch. 6, § 1, 2, p. 201 to p. 262; Id. ch. 7, § 1, p. 262 to p. 276.

2 Froland, Mémoires, ch. 1, § 7, 8.

* Id.; Henry on Foreign Law, 31.

Pt.

See also, 1 Boullenois, ch. 1, p. 421; Id.

p. 467, 468; Merlin, Répert. Autoris. Maritale, § 10.

4 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 2, p. 276, 302. Rodenburg, De Divers. Stat. tit. 2, ch. 5, § 9; 2 Boullenois, Appx. p. 39. It may be useful here to state, (once for all,) that, in referring to the laws of different countries, I generally state them as they formerly were, without any attention to the changes which they may actually have undergone. The reasoning of the foreign jurists upon this subject would be rendered exceedingly obscure, and sometimes incorrect in any other way; and the object of this work is not so much to show what particular conflicts of laws may now arise from the present jurisprudence of a particular country, as to illustrate the principles which different ju

of property between husband and wife; in others none; and in others again, mixed rights and qualified claims.1

§ 127. Boullenois has put several cases, showing the practical difficulties of this conflict of laws. Suppose a husband domiciled in a place where he cannot bind his wife, if he contracts alone and without her, although she is under his marital power and authority; and the husband should go to, and contract in a place, where, by reason of this authority, he can bind his wife by binding himself; will the latter contract bind her? He answers in the negative; because the obligation of the wife does not spring from the nature of the contract, nor from the place of the contract, but from the marital authority, which has no such effect in the place of his domicil.2 In Brittany, formerly, when a husband and wife were each bound in solido for the same contract or debt, payment was to be first sought out of the effects of the husband. But in Paris, upon a like contract, the effects of the husband and wife were formerly indiscriminately bound. Suppose, then, that at that period married persons, domiciled in Brittany, had gone to Paris and there contracted, or that married persons domiciled in Paris had gone to Brittany and there contracted, in what manner should the creditor seek payment? Boullenois seems to have held that in such a case the laws were to be followed, which regulate the estate and condition of the wife, that is to say, the laws of her domicil.3

§ 128. It is hardly possible to enumerate the different rules adopted in the customary law or in the positive law of different provinces of the same empire, upon the subject of the rights of husband and wife. In some places the laws, which place the wife under the authority of her husband, extend to all her acts, as well to acts inter vivos as to acts testamentary. In others, the former only are prohibited. In some places the consent of the husband is necessary to give effect to the contracts of the wife. In others, the contract is valid, but is suspended in its execution during the rists have adopted in solving questions relating to the conflicts of laws generally. See 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 2, p. 276 to p. 332, where there will be found a summary of the laws of Holland on the subject of this chapter.

1 1 Burge, Comm. on Col. and For. Law, ch. 7, § 1 to § 8, p. 262 to p. 561; Henry on Foreign Law, ch. 1, § 3, p. 10, 36, note; Id. 95; 1 Boull. Obs. 15, p.

198; Id. Princ. Gén. 8, p. 8.

* Boullenois, Obs. 46, p. 467.

" Id.

P.

468, 469.

life of the husband. In some places the wife has no power over the administration of her own property. In others, the prohibition is confined to property merely dotal, and she has the free disposal of her own property, which is called paraphernal.1

§ 129. But not to perplex ourselves with cases of a provincial and unusal nature, let us attend to the differences on this subject in the existing jurisprudence of two of the most polished and commercial states of Europe, in order to realize the variety of questions which may spring up and embarrass the administration of justice in the tribunals of those countries.

§ 130. The present code of Françe does not undertake to regulate the conjugal association as to property, except in the absence of any special contract, which special contract the husband and wife may, under certain limitations, make, as they shall judge proper. When no special stipulations exist, the case is governed by what is denominated the rule of community, le régime de la communauté. This community, or nuptial partnership, generally extends to all the movable property of the husband and wife, and to the fruits, income, and revenues thereof, whether it is in possession, or in action at the time of the marriage, or it is subsequently acquired. It extends also to all immovable property of the husband and wife acquired during the marriage; but not to such immovable property as either possessed at the time of marriage, or which came to them afterwards by title of succession, or by gift. The property thus acquired by this nuptial partnership, is liable to the debts of the parties existing at the time of the marriage; to the debts contracted by the husband during the community, or by the wife during the community with the consent of the husband; and to debts contracted for the maintenance of the family, and other charges of the marriage. As in common cases of partnership, recompense may be claimed and had for any charges, which ought to be borne exclusively by either party. The husband alone is entitled to administer the property of the community; and he may alien, sell, and mortgage it without the concurrence of the wife. He cannot, however, dispose

1 2 Boullenois, Obser. 32, p. 11; 1 Domat, B. 1, tit. 9, p. 166, 167; Id. § 4, p. 179, 180, &c. See also, 1 Froland, Mém, per tot.; Merlin, Répert. Autoris. Maritale, § 10; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 6, § 1, p. 201 to p. 244; Id. ch. 7, § 1 to § 7, p. 262 to 561.

* Code Civil of France, art. 1387 to 1408; Id. art. 1497 to 1541.