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proof of it, so deal with an Englishman in those circumstances. This is truly a comitas, and can be explained upon no other ground; and with all respect for the usage, it is not easily reconcilable to any sound reason. But when the courts of one country consider the laws of another in which any contract has been made, or is alleged to have been made, in construing its meaning, or ascertaining its existence, they can hardly be said to act from courtesy, ex comilale ; for it is of the essence of the subject matter to ascertain the meaning of the parties, and that they did solemnly bind themselves; and it is clear that you must presume them to have intended what the law of the country sanctions or supposes: it is equally clear that their adopting the forms and solemnities which that law prescribes, shows their intention to bind themselves, nay more, is the only safe criterion of their having entertained such an intention. Therefore the courts of the country where the question arises, resort to the law of the country where the contract was made, not ex comitate but ex debito justitiæ; and in order to explicate their own jurisdiction by discovering that which they are in quest of, and which alone they are in quest of, the meaning and intent of the parties. But whatever may be the foundation of the principle, its acceptance in all systems of jurisprudence is unquestionable. ' Thus a marriage good by the laws of one country, is held good in all others where the question of its validity may arise.(I)
A contract made in France on the marriage of iwo persons of that nation, who afterwards took refuge and lived in England, was decreed to be specifically performed here, although the terms of it referred to the custom of Paris.(m)
So if a domiciled Scotchman would be held entitled in Scotland, by virtue of a marriage contract executed there, and in the Scotch form, to receive whatever property accrued *during the coverture to his wife, the court of Chancery will enforce bis
[ *122 ] right as against any such property coming within its jurisdiction, and will not raise an equity for a settlement in favour of the wife, in opposition to the provisions of the contract.(n)
The distinction between that part of the law of the foreign country where a personal contract is made which is adopted, and that which is not adopted by our English courts of law, is well known and established ; namely, that so much of the law as affects the rights and meril of the contract, all that relates ad litis decisionem, is adopted from the foreign country; so much as affects the remedy only, all that relates ad litis ordinationem, is taken from the lex fori of that country where the action is brought.(0)
Where the question, though instituted in a Scotch court, originates in an English contract, which is considered in Scotland as a matter of foreign law; it must, jure gentium, be tried by reference to the law of the country where the contract had its origin. In such a case,
(!) Wurrender v. Warrender, 2 Clark & Ellefsen, 2 East, 453; Shaw v. Harvey, Finn. 529, 530; 9 Bligh N. S.110, 111. Mood. & M. 526; The British Linen Com.
(m) Fouvert v. Turst, 1 Br. P. C. 129; pany v. Drummond, 10 B. & C. 903; Trim. Prec. Ch. 207; Vin. Abr. tit. Foreign (C). bey v. Vignier, 4 Moore & S. 695; 6 C. & P.
(n) Anstruther v. Adait, 2 Myine & K. 25; 1 Bing. N. S. 151; Flack v. Holm, 1 513.
Jac. & W.405; The King of Spain v. Ma. (0) Huber v. Steener, 2 Scott, 326; De la chado, 4 Russ. 225 ; Milan v. The Duke de Vega v. Vienna, 1 B. & Ad. 281; Inlay v. Fitzjames, 1 Bos. & Pul. 138.
the established principle of the law of Scotland is, “ that all personal
*In the ordinary case of civil obligations of a pecuniary.
nature, the application of the lex loci contractus is undoubted. In like manner, in the constitution, at least, of contracts involving inatrimonial status, the same rule unquestionably applies ; for every one knows, that by the law of nations, marriage duly celebrated according to the law of the place where made, is valid and effectual all the world over. But in judging of the effects of the mar. riage contract, and in defining the rights which it confers on either party, it has been said that these must be modified and controlled by the various changes which may afterwards take place in the domicile of the offending party.(r)
A party relying on the lex loci contractus, in construing the import and tracing the consequences of the marriage contract, cannot deny that the same lex loci must regulate the construction and the conse-, quences of any deed of separation between the married pair.(s)
3. THE RULE FOR DECIDING MARRIAGES, ACCORDING TO THE LEX LOCI
CONTRACTUS, IS JUS GENTIUM.
The doctrine of trying contracts, especially those of marriage, according to the laws of the country where they were made, is practised in all civilized countries, and is agreeable to the law of nations. It is the consent of all nations, it is the jus gentium, that the solemnities of the different nations, with respect to marriages, should be observed, and that contracts of this kind are to be determined by the laws of the country where they are made. The jus gentium is the law of every country, and is obligatory on the subjects of every country. All nations allow marriage contracts; they are juris gen, tium, (t) and the subjects of all nations are equally concerned in them; and from the infinite mischief and confusion that must necessarily arise to the subjects of all nations, with respect to legitimacy, succes[ *124 ]
sions, and other rights, if the *respective laws of different
(p) Erskine's Inst. b. iii. tit. 3, s. 40. (9) Huberus de Conflictu Logum, lib. 1, There are numerous cases decided by the tit. 3, s. 8. courts in Scotland, establishing the general (T) See post, chap. on Divorce. rule, that questions relating to the negotia (8) Warrender v. Warrender, 2 Clark & tion of bills of exchange are to be decided by Finn. 527; 9 Bligh N. S. 107. the laws of the place of payment, and not of (1) The essential qualities of marriage, as the place of contract; Brown v. Crawford, unalterably fixed by Divine institution, are Mor: 1587; Stevenson v. Stewart, Mor. the same throughout all Christendon, and it 1518; Watson v. Renton, Bell's Rep. 103; is in this sense, that marriage is a contract Armour x Campbell, Mor. 4476.
tracted by the subjects of those countries abroad, all nations have consented, or must be presumed to consent, for the common benefit and advantage that such marriages should be good or not, according to the laws of the country where they are made. It is of equal consequence to all that one rule in these cases should be observed by all countries—that is, the law where the contract is made. By observing this law no inconvenience can arise ; but infinite mischief will ensue if it is not. Again, if countries do not take notice of the laws of each other with respect to marriages, what would be the consequence if two English persons should marry clandestinely in England, and that should not be deemed a marriage in France ? Might not either of them, or both, go into France and marry again, because by the French law such a marriage is not good? And what would be the confusion in such a case? Or again, suppose two French subjects, not domiciled here, should clandestinely marry, and there should be a sentence for the marriage; undoubtedly the wife, though French, would be entitled to all the rights of a wife by our law. But if no faith should be given to that sentence in France, and the marriage should be declared null, because the man was not domiciled, he might take a second wife in France, and that wife would be entitled to legal rights there, and the children would be bastards in one country, and legitimate in the other. So that in cases of this kind the matter of domicile makes no sort of difference in determining them; because the inconvenience to society and the public in general is the same, whether the parties contracting are domiciled or not. Neither does it make any difference whether the cause be that of contract of marriage, for if both countries do not observe the same law, the inconveniences to society must be the same in both cases. And as it is of consequence to the subjects of both countries, and to all nations, that there should be one rule of determining in all nations on contracts of this kind, it is to be presumed that all nations do consent to determine on these contracts, by the laws of the country where they are made; as such a rule would prevent all the inconveniencies that must necessarily arise from *judging by different laws, and is attended by no manner of inconve
[ *125 ] nience, but is for the advantage of the subjects of all nations.(u)
Foreign jurists have supported the general rule, undoubtedly, from a common sense of the pernicious consequences which would flow from a different doctrine. Thus, Sanchez holds, that a marriage is void where it wants the solemnities prescribed by the local law; " what,” says he, “ the law of the place requires, where the contract is made, and what are the solemnities, which are to be followed in contracts, are to be decided solely by the laws of the place in which the contract is celebrated;" quæ petunt leges loci, ubi contractus initur, et quoad solennitatem adhibendam in contractibus, solæ leges loci, in quo contractus celebratur, inspiciuntur.(x) John Voet afirms the same doctrine, holding that a marriage of an inhabitant of Holland in Flanders, or Brabant, according to the laws of the latter, would be valid in Holland; because " il is sufficient in con
(u) Scrimshire v. Scrimshire, 2 Hagg. Cons. R. 416-419.
(2) 2 Hagg. Cons. Rep. 413.
tracts to follow the solemnities of the place in which the contract is celebrated, although the solemnities are not observed which are prescribed in the place of the domicile of the parties, or of the situation of the property, in executing the act ;" eo quod sufficit in contrahendo adhiberi solennia loci illius, in quo contractus celebratur, etsi non inveniantur observata solennia quæ in loco domicilii contrahentium, aut rei sitæ, actui gerendo prescripta sunt.(y) Paul Voet holds the same opinion.(z) Huberis says that a marriage, valid by the law of the place where it is celebrated, is binding every where, under the exception, which he generally applies, that it is not prejudicial to others, or that it is not incestuous.(a) Bouhier adopts the general rule, hesitating as to the nature and extent of the exceptions.(6) [ *126 ]
Hertius lays *down the following axiom: “If the law
prescribes a form for the act, the place of the act, and not the domicile of the parties, or of the situation of the property, is to be considered.” Si lex actui formam dat, inspiciendus est locus actûs, non domicilii, non rei sitæ. And he puts the following as an example: "A marriage contracted according to the solemnities of any place, where the married couple are commorant, cannot be rescinded upon the pretext, that in the domicile or country of the husband other solemnities are required.” Matrimonium juxta solennitates loci, alicujus, ubi sponsus et sponsa commorabantur, contractum non potest prætextu illo rescindi quod in domicilio aut patriâ mariti aliæ solen. nitates observentur.(c) He puts exceptions afterwards to this general axiom; one of which is, thai a contract between foreigners belonging to the same country is to be governed by the law of their own country, and not by that of the lex loci contractus. In this exception be has to encounter many distinguished adversaries.(d) The French jurists seem generally to support the doctrine that marriage is to be held valid or noi according to the law of the place of celebration, except in cases positively prohibited by their own law to their own subjects. And Merlin says, that it is a contract so completely of natural and moral law, that when celebrated by savages, in places where there are no established laws, it will be recognised as good in other countries.(e)
4. LIMITATION OF THE RULE FOR THE APPLICATION OF THE LEX LOCI.
Although the lex loci contractus is of general obligation from its equity, nevertheless, like every other general rule, it is subject to soine limitations. The rule holds only where it does not stand opposed to the religion, morality, or municipal institutions of the country in which it is sought to be applied. If these are in any way
(y) 2 Hagg. Cons. Rep. 415, cites J. Voet, gradu contingeret alicubi esse permissum ; ad Pandectas, lib. 23, tit. 2, n. 4, p. 20. quod vix est ut usu venire possit.-Huberus
(2) Voet, De Statut. s. 9, c. 2, n. 9, p. de Conil. Leg. lib. 1, lit. 3, s. 8. 267.
(6) Bouhicr, Cout. de Bourg. c. 27, s. (a) Si (matrimonium) licitum est eo loco, 59-66. ubi contractum et celebratum est, ubique (c) Hertii Opera, De Collis. Leg. s. 4, p. validum erit effectum que habebit sub eadem 126, s. 10. exceptione, præjudicii aliis non creandi; cui (d) Ibid. p. 128, s. 10, Non Valet (6). licet addere, si exempli nimis sit abominan. (e) Merlin, Répertoire, Mariage, s. 1, p. di, ut si incostum juris gentium in secundo 343. See also 2 Boullenois, 458; 1 Froland,
threatened or endangered, the rule ceases, and will not be enforced, because it is the first #law of every state to preserve its religion pure, and its institutions entire.(f) Christianity
[ *127 ] is understood to prohibit polygamy and incest ; and therefore no Christian country would recognize polygamy or incestuous marriages. But when we speak of incestuous marriages, care must be taken to confine the doctrine to such cases as, by the general consent of Christendom, are deemed incestuous. li is difficult to ascertain exactly the point at which the law of nature or Christianity ceases to prohibit marriages between kindred; and nations are by no means agreed on this subject.(g) In most of the countries of Europe, in which the canon law has had authority or influence, marriages are prohibited between near relations by blood or marriage ; and the canon and the common law seein to have made no distinction on this point between consanguinity or relation by blood, and affinity or relation by marriage, though there certainly is a very material difference in the cases. (h) Marriages between relations by blood, in the lineal ascending or descending line, are universally held by the common, the canon, and the civil law, to be unnatural and unlawful. And a marriage between an uncle and niece by blood has been held in England to be incestuous, upon the ground that it is against the law of God and sound morals; that it would tend to endless confusion, and that the sanctity of private life would be polluted, and the proper freedom of intercourse in families would be destroyed, if such practices were not discountenanced in the strongest manner.(i) This rule has been laid down by one of the North American States: “If a foreign state allows of marriages, incestuous by the laws of nature, as between parent and child, such marriage would not be allowed to have any validity here. But marriages not naturally unlawful, but prohibited by the law of one state and not of another, if celebrated where they are not prohibited, would be holden valid in a state where they are not allowed. As in this state, a marriage between a man and his deceased *wife's sister is lawful, but it is not so in some states ; such a marriage celebrated here would [ *128 ] be held valid in any other state, and the parties entitled to the benefits of the matrimonial contract."(k)
The lex loci contractus will not prevail when either of the contracta ing parties is under a legal incapacity by the law of the domicile. Thus where a second marriage had taken place in Scotland between two persons, one of whom had been previously married, but who had been divorced a vinculo of the first marriage by the sentence of the Scotch court; the parties were domiciled in England at the time of the second marriage, as well as of the divorce. The court dis
Mem. p. 177, ch. 1; Pardessus, vol. 5, p. 6, 2 Vent. R. 9; Grotius, b. 2, ch. 5, s. 12, 13,, tit. 7, ch. 2, art. 1481 to 1495. Story on 14; Grotius, b. 2, s. 12, n. 2; 2 Heinecc. Conflict of Laws, 113-115.
Elem. Juris Natur. b. 2, ch. 2, s. 40, by (f) See Furgusson's Rep. 90.314. Turnbull. See Story on Conflict of Laws,
(g) Grotius b. 2, c. 5, s. 12, 13, 14. See l 104, 105; post, p. 157-160. Brown, Civ. Law, 61–65.
(k) Greenvuod v. Curtis, 6 Mass. R. 378, (h) 2 Keni, Coinm. p. 81, 82, (2d edit.); 1 379 i Medway v. Needham, 16 Mass. R. 157, BI. Comm. 434.
161; Wightmi v. Wightman, 4 Jolin. Ch. (i) Burgess v. Burgess, 1 Hagg. Cons. R. Rep. 313. 336; Harrisun v. Burwell, Vaugh. R. 206;