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*Evidence of the law of Scotland with respect to a [ *114 ]
marriage must be derived from a person of competent knowledge on the subject. Upon a prosecution for bigamy, where the first marriage was at Gretna Green, in Scoiland, the court refused to receive evidence of the law of Scotland, in respect of the legality of such a marriage, from a witness who was a tobacconist.(c)
In a case where the validity of a marriage in Scotland was in question, and the authorities to which the learned judge, Lord Stowell, had been referred, were of three classes,-first, the opinions of learned professors, given in the present, or similar cases; secondly, the opinions of eminent writers, as delivered in books of great legal credit [ *115 ]
and weight; and #thirdly, the certified adjudication of
the tribunals of Scotland upon these subjects,-his lordship said, “I need not say, that the last class stands highest in point of authority; where private opinions whether in books or writings, incline on one side, and public decisions on the other, it will be the undoubted duty of the court, which has to weigh them, stare decisis."(d)
Where a question in chancery is to be decided with reference to the law of Scotland, that law must be ascertained upon a reference to the master to inquire into and state it as a fact for the information of the court.(e)
In Grierson v. Grierson,(s) where the validity of the marriage of a ward of the court of Scotland was doubted, it was referred to the master to see if any marriage had been rightly celebrated, and to state the circumstances. That court in this case acted upon certificates of Scotch law, finding a marriage valid which was founded upon a present contract, without reference to any act of consumma. tion.(g)
In the case of a criminal prosecution of a woman who had received a pension as an officer's widow, and it was alleged in the indictment that she never was married to him; she alleged a marriage in Scotland, but that she could not compel her witnesses to come up to give evidence. The court obliged the prosecutor to consent that the wila nesses might be examined before any of the judges of the court of Session, or any of the barons of the court of Exchequer in Scotland, and that the depositions so taken should be read at the trial.(h)
had been rejected. Sir Christopher Robin. valid marriage by the laws of Scotland ; son, taking the paper as a declaration, under whereupon he pronounced, decreed and de. the hand of the parties, of their mutual ac. clared the said parties to be lawful husband knowledgment of each other as husband and and wife. wife thought it admissible, in that charac- (c) Anon, cited 10 East, 287. See 1 ter, in conjunction with the facts and the Evans's Statutes, 161, n. law pleaded in this allegation, and conse- (d) 2 Hagg. Cons. R. p. 81. quently that this article of the plea was en: (c) Elliot v. Lord Minio, 6 Madd. 16; titled to stand, subject to any objection to be The King of Spain v. Machado, 4 Russ. 225; taken by the husband to the instrument in a Ex parte Cridland, 3. Ves. & B. 94; An. future stage of the cause. To this plea as struther v. Adair, 2 Mylne & K. 516. See reformed, a general negative issue being Snelham v. Bayley, 5 Ves. 534, a, 2d ed.; 1 given on the part of the husband, the wife Sim. & Stu. 78. proved her libel so far as related to the mar: ( Dick. 588. riage pleaded and propounded in the cause ; (g) S. C. cited 2 lagg. Cons. R. 86. 98. and the court held that the marriage was Reg. Lib. A. 1780, fol. 552. proved to have been had as pleaded, and was (h) Lord Mansfield, Cowp. 174. also proved to be as pleaded, a good and
The rules of English law are matters of evidence in Scotch courts; but the House of Lords, sitting as a court of appeal from the decision of a Scotch court, is equally an English as a Scotch court, and will act on its own knowledge of English law, and not be bound by the report of that law made by English lawyers to the Scotch courts.(i) For the same reason that house will act on its own knowledge of Scotch law, *should any question upon it arise in an
[ *116 ] appeal from an English court.
A verbal declaration of the parties de presenti being sufficient to constitute a marriage, it necessarily follows that it may be proved by the verbal testimony of the witnesses who were present when the declaration was made. A marriage celebrated before a minister for which no regular form of words are requisite, may be proved in the same way.()
A marriage in Scotland may be proved by a witness who was present at the ceremony. The testimony however, of a single witness who could depose of his own knowledge to any fact of marriage between the parties was held insufficient, where the marriage was pleaded to have been had in the presence of divers witnesses, and the deficiency of primary evidence was not compensated by any secondary evidence of consummation, cohabitation, mutual acknowledge ments, &c.(k)
In the case of an irregular marriage, the previous and subsequent conduct of the parties is admissible in evidence upon the question of consent.(?)
le supply of proof of a marriage in Scotland, a copy of the register of the Episcopal chapel at Edinburgh had been exhibited; Dr. Lushington said, "I am not aware that such registers are, according to the law of Scotland, documents of an authentic and public nature; por that a copy of an authentic register is by that law admitted as evidence. But according to the law of this country, as I believe it has been practised in the courts of Westminster Hall, I think I should act more safely by rejecting it. I consider it to be of the highest importance that this court should adhere to the same rules of evidence as prevail elsewhere ; indeed I should entertain some doubts whether ecclesiastical sentences could be received in the courts of Westminster Hall as conclusive, if it were known that they were founded on evidence altogether inadmissible by the rules of those tribunals; but however this might be, it is certainly wiser to adhere to the same *principles wherever practicable. It would therefore only be after great consideration and hesitation, or after
[ *117 ] being bound by an express decision of the superior court, that I could consent to admit such an exhibit; and I reject it the more readily, as the establishment of such a precedent in this case would be perfectly gratuitous, since the marriage is proved by a witness who was present at the ceremony; and since, in point of fact, a Scotch marriage by banns is not more valid than a less formal marriage." ()
(1) Douglas v. Brown, 2 Dow & Clark, 397; ante, p. 112. 171.
(1) Macneill v. Macgregor, 2 Bligh, N. S. (1) M'Adam v. Walker, 1 Dow, 185. 393. (k) Nokes v. Milward, 2 Addams R. 394. (1) Conway v. Beazely, 3 Hagg. Eccl. R.
A letter granted, on the understanding of both parties, for the purpose, not of constituting a marriage, but of deceiving a third person, is not admissible evidence of a marriage.(m)
A Gretna Green marriage, by English parties, within the territory of Scotland, does not bestow the patrimonial rights of a Scotch marriage along with the status ; and it was decided, that the surviving wife of such a marriage did not obtain a Scotch terce, but an English dower.(n)
Matrimonial Causes to be tried before Court of Session.]—Marriage is judicially established by action of declarator in the court of Session, or the question may arise incidentally in the course of another cause. The jurisdiction respecting matrimonial causes subject to revision by the court of Session, and ultimately by the House of Lords, was originally vested in the Commissary court, but it has recently been transferred to another court.(o) · By stat. 11 Geo. 4, and i Will. 4, c. 69, s. 33, it is enacted, that all actions of declarator of marriage, and of nullity of marriage, and all actions of declarator of legitimacy and of bastardy, and all actions of divorce, and all actions of separation a mensa et thoro, shall be competent to be brought and insisted on only in the court of Session.
By the 37th section of the same act, in consistorial causes, either the whole cause, or any issue or issues of fact connected with it, may,
at the discretion of the court, be tried by a jury; and the [ *118 ]
old consistorial oath is changed for the oath usual in other courts of justice in Scotland.
The Commissary court of Scotland was held not competent to a declarator of marriage against a person who had been some time resident there, attending the colleges, not a native of Scotland, nor within it at the time of the citation.(p)
A domicile cannot be created without residence, and in an action for establishing a marriage in Ireland between two natives in that country, the circumstance of the husband leaving a few articles of furniture in Scotland at the date of the citation, without any arrestment of them, was insufficient to establish a jurisdiction.(9)
651. A court of justice cannot delegate its (n) Nderton v. Ilderton, 2 H. Bl. 145. jurisdiction, and ought not to be guided by See Fergusson's Rep. 29. any foreign opinion upon a question of law; (0) Stair's Inst. lib. 3, tit. 3, s. 42; lib. 4, e. g. the admissibility of evidence. Dunbar tit. 37, s. 4. v. Hardie, 2 Bligh, 351.
(p) Scruton v. Gray, Mor. p. 4822. (m) Stewart v. Menzies, 14 Dunlop & (9) Forrest v. Funstone, Mor. 4823. Bell, 427.
SECT. 8.OF FOREIGN MARRIAGES.
1. Concession of one Foreign State to the Laws of another
118 2 Personal Contracts decided according to Lex Loci Contractus
120 3. The Rule fur deciding Marriage, according to Lex Loci is jus gentium 123 4. Limitation of the Rule for the Application of Lex Laci
126 5. Jurisdiction of Ecclesiastical Courts as to Foreign Marriages
130 8. Marriage of English parties abroad
valid, if according to Les Loci 131 7. Marriage abroad contrary to Ler Loci, void in England
132 8. When Marriages are valid, though not celebrated according to Lex Loci 140 9. Marriages of English subjects in Factories abroad
145 10. Evidence of Foreign Law of Marrriage
1. CONCESSION OF ONE FOREION STATE TO THE LAWS OF ANOTHER.
It is the natural consequence of the intercourse taking place among civilized nations, that the courts of law of one country are often called upon to enforce rights arising in another, and in doing so, to judge of and give effect to such rights, not according to the laws of their own country, but according io those of the country in which they had their origin, though they can be only bound to do so in so far as is not prejudicial to the legal policy of their own. The laws of one country can have no force, excepi within the limits and jurisdiction of thai country; whatever extra territorial effect they have is not *derived from any original power to extend them abroad, but arises from that respect which, from motives of public
[ *119 ] policy, other nations are disposed to yield to them, giving them effect with a wise and liberal regard to common convenience and mutual necessities.
Comitas is the term used to express the principle upon which courts of independent countries, in deciding questions upon foreign contracts, adopt the rule of the foreign law under which the contract was made. This concession however, is not a duty of obedience, but merely a debt of justice, and is grounded on the prejudice that must arise to important interests of another country from a refusal to observe it.(a)
The true foundation on which the administration of international law must rest, is, that the rules which are to govern, are those which arise from mutual interest and utility ; from a sense of the inconveniences which would result from a contrary doctrine; and from a sort of moral necessity to do justice in order that justice may be done to us in return.(0) But the nature and extent and utility of this recognition of foreign laws respecting the state and condition of persons, every nation must judge for itself, and certainly is not bound 10 recognize them where they would be prejudicial to its own interests. The very terms in which the doctrine is commonly enunciated, carry along with them this necessary qualification and limitation of it. Mutual utility presupposes that the interest of all nations is consulted, and not that of one only. Now this demonstrates that the doctrine
(@) Fergusson's Rep. 99. 193. See Vat- v. Russell, 13 Mass. R. 4; Rodemburg, de tel, p. 62, ss. 14. 16.
Stat. Diversit. tit. 1, c. 3, s. 4, p. 8; Bouhier () Livermore, Dissert. p. 28; Blanchard Cout. de Bourg. c. 23, s. 62, 63. p. 457.
owes its origin and authority to the voluntary adoption and consent of nations. It is therefore in its strictest sense a matter of comity of nations, and not of absolute paramount obligation, superseding all discretion on this subject.(c)
The first marriage aci(d) did not extend to any marriages solemnized beyond the seas, and the present marriage acts(e) extend only [ *120 ]
to England; the marriages therefore of English *parties
beyond the sea are not affected by these acts. The reason of the exception as to marriages had abroad is quite clear; for the requiring Englishmen to marry abroad according to the solemnities prescribed for England, would amount almost to a prohibition of their marrying abroad; for it would be vain to insist upon the observance of those solemnities in a foreign country. But as marriages between English parties in foreign states are of frequent occurrence, it is of great importance to consider the principles applied to such mårriages by the laws of this country.
2. PERSONAL CONTRACTS ARE DECIDED ACCORDING TO LEX LOCI CON
The general principle is, that the lex loci is to be the governing rule in deciding upon the validity or invalidity of all personal contracts.(f) In the case of Holman v. Johnston,(g) Lord Mansfield said, " There can be no doubt but that every action tried here must be tried by the law of England; but the law of England says, that with regard to contracts legally made abroad, the laws of the country where the cause of action arose shall govern. There are a great many cases which every country says shall be determined by the laws of the foreign countries where ihey arise.”(h) Thegeneral rule established, ex comitate et jure gentium, is, that the place where the contract is made, and not where the action is brought, is to be considered in the expounding and enforcing the contract. But this rule admits of an exception, where the parties at the time of making the contract had a view to a different country.(i) Lord Robertson said, " The lex loci is to be considered in expounding or enforcing a contract, not from a blind deference or comilus towards a foreign law, but because it is presumed that the parties had in view the law of the country in which the contract was entered into, and that they meant to be bound by it.”(k) Lord Brougham, in admitting that the lex loci is to be the governing rule in deciding upon the validity or invalidity of all personal contracts, said, “This is sometimes expressed, though inaccu[ *121]
rately, by saying *that there is a comitas shown by the tri
bunals of one country towards the laws of the other country. Such a thing as comitas or courtesy may be said to exist in certain cases, as where the French courts inquire how our law would deal with a Frenchman in similar or parallel circumstances, and upon
(c) 2 Kent's Comm. pp. 457, 458, 2nd ed. Finn. 529. Story on the Conflict of Laws, 36.
(g) Cowp. 343. (d) 26 Geo. 2, c. 33, s. 18.
(h) See Huberus de Conflictu Legum, 2 (e) 4 Geo. 4, c. 76, s. 33; 6 & 7 Will. 4, vol. p.
539. c. 85, s. 45.
(i) Robinson y. Bland, 1 W. Bl. 259. (1) Warrender v. Warrender, 2 Clark & (k) Fergusson's Rep. 396.