truly said by Judge Ware,1 that "their validity will be admitted, and they will be enforced by the tribunals of other countries, as to acts which are done, and rights which are acquired, within the territorial limits of the community where these laws are established." At the same time, a status held by the lex fori to be immoral, or to contravene public policy, will not be enforced, although established by a foreign state in conformity with its own jurisprudence.2 CHAPTER IV. MARRIAGE. I. GENERAL PRINCIPLES. Marriage is not a mere contract, but an institution, § 126. By the distinctive policy of the United States marriages are encouraged, and extra-territorial artificial limitations of such marriages are disregarded, § 127. Union must be for life, § 128. Must be exclusive, § 129. Impotency a cause for nullity determinable by the judex domicilii, § 148. But mere barrenness does not annul, § 149. Laws requiring consent of parents, or of state, matters of national policy, § 150. By canon law marriages without such consent valid, § 151. In France restrictions of this class follow subjects wherever they go, § 152. Indian polygamous marriages invalid, § 130. In England marriage of subjects abroad And so of Mormon marriages, § 131. II. INCAPACITIES. Party already married incompetent to marry again, § 132. Supposed but not actual death does not dissolve marriage, § 133. In some states legitimacy assigned to children of second bonâ fide marriage in such case, § 134. Party divorced can marry again; but doubts as to party to restricted divorce, § 135. By policy of canon law, impediments of consanguinity were widely extended, § 136. In this country national policy limits restrictions to those of ascent, and descent, and laterally in first degree, § 137. By policy of canon law, restrictions of affinity were multiplied, § 138. English restriction, of marriage of man to deceased wife's sister, result of local policy, § 139. In the United States such statute not regarded as following British subjects, § 140. Otherwise by judex domicilii, § 141. Incapacity of lunacy determinable by place of residence, § 142. Marriages by force everywhere voidable, § 143. valid though without statutory requisites, § 153. Prohibition of marriages of ecclesiastics So as to prohibitions of marriages with So of marriages between Protestants and So of marriages between persons of un- So of marriages between persons of different races, § 159. III. THEORIES AS TO CAPACITY. Theory that the place of solemnization decides, § 161. Objections, § 162. Theory of national policy, § 165. IV. EFFECT OF RESIDENCE ON MARITAL RIGHTS. Marital rights regulated by place of residence, § 166. So as to wife's personal rights, § 167. 'V. MODE OF CELEBRATION. But validated by subsequent consent, § 144. Prevalent opinion is that law of place of Error may invalidate, § 145. So as to fraud, § 146. celebration controls, § 169. Modifications suggested to this view, § 170. Minority a question of state policy, exclud- By canon law consensual marriage is valid, ing foreign laws, § 147. § 171. So by common law of England and of the continent of Europe, § 172. So in the United States, § 173. Limitations of Council of Trent not binding when not published, § 174. State limitations not binding on foreigners when impracticable, § 175. Nor when violating conscience, § 176. Nor in barbarous lands, § 177. Nor when not imposed on foreigners, § 178. Exception as to ambassadors' and consuls' houses, § 179. When prescribed forms are obligatory on subjects abroad, § 180. When foreign state is sought in fraud of home law, § 181. Difficulties attending test of fraud, § 182. VI. LOCAL LAWS OF FOREIGN STATES. Germany and Austria, § 185. VII. CONFLICTS AS ΤΟ MATRIMONIAL English common law conflicts in this respect with recent statutes, § 187. Law of community conflicts with English common law, § 188. Exemption statutes of residence conflicting with law of domicil, § 189. Site of matrimonial domicil is intended permanent residence, § 190. Law of that domicil controls, § 191. hold that first domicil controls, § 194. Intention of parties supposed to point to this result, § 195. Acquisitions subsequent to change governed by new domicil, § 196. 1. Foreign X. DIVORCE. Divorces to be viewed with Disfavor. Marriage to be for life, § 204. Sovereign has power to divorce, § 205. Foreign divorces should be scrutinized on account of looseness of procedure, § 206. And also from the fact that marriage is governed by distinctive national policy, § 207. Domiciliary jurisdiction and regular procedure essential, § 208. 2. How Foreign Divorces are regarded on the Continent of Europe. Domicil or bonâ fide nationality essential to jurisdiction, § 209. Place of misconduct does not give jurisdiction, § 210. Nor does the place of celebration of marriage, § 211. Wife may retain matrimonial domicil for divorce purposes, § 212. Nullity procedure governed by same rules, § 213. Right to remarry determined by law of domicil, § 214. 3. How Foreign Divorces are regarded in Scotland. Jurisdiction based on local policy, § 215. 4. How Foreign Divorces are regarded in England. Until 1858 no judicial divorces, § 216. Nor is mere residence of defendant, § 220. But vested rights are not thereby divested, 5. How Foreign Divorces are regarded in § 197. Nationality not an adequate test, § 198. VIII. CONFLICTS AS TO MARRIAGE SETTLEMENTS. Marriage settlements governed by law of matrimonial domicil, § 199. Limitations under which foreign law should be applied, § 200. the United States. Domicil, not residence, the basis of jurisdiction, § 223. Deserted wife may acquire independent domicil, § 224. And so may wife after judicial separation, § 225. But not on mere voluntary separation, § 226. Not enforced when contrary to local law, If wife wrongfully separates from husband, § 201. IX. GIFTS BETWEEN HUSBAND AND WIFE. By Roman law such gifts are invalid, § 202. So by English common law, § 203. she may be sued in his domicil, § 227. Domicil of petitioner must be real, § 228. In Massachusetts a statute in fraud of home law is invalid, § 229. Record must aver necessary facts, and such | Summons by publication will not be re facts may be collaterally disputed, § 230. Domicil at time of offence immaterial, § 231. And so is place of offence, § 232. And so is place of marriage, § 233. Procedure to be internationally regular, Extra-territorial service not usually adequate, § 236. garded as conferring jurisdiction when in fraud of defendant's rights, § 237. Service within jurisdiction sufficient, though defendant is non-domiciled; and so of appearance, § 238. In Pennsylvania the forum is the matrimonial domicil, § 239. Judgment may dissolve marriage and yet not affect property, § 239 a. Marriage is not a mere contract but an institution. I. GENERAL PRINCIPLES. § 126. MARRIAGE is often spoken of as a contract, and this is so far true that without an agreement between the parties a legal marriage cannot be instituted. But between a marriage and an ordinary contract there are the following important points of difference: (1.) Marriage cannot be shaped or modified at the will of the parties. It is a conjugal union for life. If a conjugal union for a less period be agreed upon by parties, no matter how capable of contracting, that union is not marriage. If a conjugal union for life be agreed upon, and thus a valid marriage is established, but upon this marriage are grafted conditions which change its character, these conditions are void. Parties, also, cannot make, no matter how solemn may be the contract, a marriage other than monogamous. If the contract be that the husband may take a plurality of wives, or that the wife may take a plurality of husbands, this contract does not constitute a marriage. If, when a marriage is duly instituted, there is a qualification annexed, authorizing such plurality, then the qualification simply is void, and the marriage continues intact. Of contracts it is an essential feature that their conditions should be moulded by the parties. But of marriage, the conditions cannot be moulded by the parties, and therefore marriage is not simply a contract. (2.) For injuries received in the discharge of contractual relations one party may recover damages from the other. But no suit for damages lies by one party to a marriage against the other. (3.) Another essential feature of contracts is, that they can be dissolved at the will of the parties. There is no contract that cannot be dissolved by the consent of those by whose consent it was instituted. It is not so with marriage. The knot is tied by consent, but cannot be untied by consent. Marriage, therefore, is wanting in another feature essential to contracts. (4.) A fourth point of difference is to be found in the supremacy of marriage in respect to the state. Contracts are subordinated to the state; but the state is subordinated to marriage. The state may pass statutes of limitations, providing that contracts shall lose their force after a certain lapse of time; and it may pass bankruptcy statutes, discharging the bankrupt's indebtedness; and these statutes may be internationally enforced. A contract barred by the statute of limitations, when such statute goes to the essence of the contract in the state to which it is subject, is barred everywhere. A contract discharged by a bankrupt act of the state to which it is subject is discharged everywhere. A contract defeasible by the law of the state to which it is subject is defeasible everywhere. It is not so with marriage. A statute limiting the term of marriage, or declaring marriage dissoluble at will, would be held to have no extra-territorial force. A statute authorizing polygamous marriages will be no defence, in foreign states, to the subjects of the state enacting the statute, should they be indicted for adultery; nor will the children of such polygamous unions be regarded, if born extra-territorially, as extra-territorially legitimate. The state is above contracts, but marriage is above the state. Marriage, in fact, in its essential features, belongs to a sphere whose primary laws the state has no power to disturb. No matter what laws a state should pass varying the essential features of marriage, these features, out of the territory of the sovereign attempting to vary them, would remain unchanged.1 Marriage, therefore, though entered into by contract, not being a mere contract, and not being internationally subject to 1 See, as sustaining the view taken in the text, Savigny, Röm. Recht, i. § 53; Story Confl. of Laws, § 108; Bishop Mar. & Div. § 357; Hyde v. Hyde, L. R. 1 P. & D. 133; Starr v. Hamilton, Deady, 268; Rugh v. Ottenheimer, 6 Oreg. 231; Frasher v. State, 3 Tex. Ap. 263. "Le mariage est une institution du droit naturel et du droit des gens." Trib. civ. Seine, 1878, cited Jour. du droit int. privé, 1879, p. 66. Mr. Lawrence (Com. sur Wheaton, iii. 270) defines marriage as "l'union voluntaire et pour la vie d'un homme avec une femme." |