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claimed any intention of deciding on the effect of the divorce, if the parties had been at all times domiciled in Scotland, and the first masriage had taken place during a casual visit to England, or if the parties had been bona fide domiciled in Scotland at the time of the divorce; but it determined that, as according to the law of England the first marriage had not been dissolved, the party was incapable of contracting the second marriage. Hence the lex loci contractus was not allowed to prevail, because one of the parties was incapacitated by the law of his domicile from making the contract; and was not relieved from that incapacity by his transient visit to Scotland.(?)
A question has been much discussed how far a marriage regularly celebrated in a foreign country, between persons belonging to another country, who have gone thither from their own country for that purpose, is to be deemed valid, if it is not celebrated according to the law of their own country. Such a marriage is held invalid by several foreign jurists, who admit the lex loci contractus, on the ground that it is an evasion or fraud upon the law of the country to which the parties belong.(m)
*We have already seen that the law of England does [ *129 ]
not admit such a principle with respect to marriages in Scotland.(n)
By the law of France 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.(o) 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 every where, 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 of marriage.(p) So ihai French minors, who are incapable of contracting a marriage in France, are disabled every where, even though the marriage would be good by the law of the place where the marriage is celebrated.(9). The doctrine of France in this respect is but an illustration of the general rule prescribed by the Civil Code (art. 3), that the laws respecting the state and condition of Frenchmen govern them even when resident in a foreign country,
A marriage contracted in a foreign country between two natural born French subjects, or between a French subject and a foreigner, is valid, if celebrated according to the established form of such foreign country: provided that two publications thereof, pursuant to article 63, have been made previous to the celebration of such mar
(1) Beazley v. Beazley, 3 Hagg. Eccles. on Foreign Law, 191. Rep. 639.
(n) Ante, p. 107. (m) Huberus de Confl. Leg. lib. 1, tit. 3, s. (0) See Okey's Dig. 121, 2d ed. 8; Bouhier Cout. de Bourg. ch. 28, ss. 60,61, (p) 1 Toullier Droit Civil Francois, art. 62, p. 557; Voel de Statut. ch. 2, s. 9, p. 268; 576, p. 484. Pothier 'Traité du Mariage, part 4, n. 363; (9) Code Civil, art. 144, 148, 170; Merlin Merlin Rep. Univers. tit. Mariage, s. 4, 11. Repert. tit. Loi, s. 6, n. 1. See Story's Conflict of Laws, 115; 1 Burge
riage, and provided that such marriage, so far as regards that party who shall be a French subject, shall not be contracted in contravention of any of the provisions referred to in the preceding section.(r)
It has been doubted whether the omission of the publication of the banns rendered a marriage contracted by a French *subject in a foreign country absolutely null.8)It was, how. [ *130 ] ever, proved in an English Court, that such a marriage contracted in France was invalid, if the required publication of banns did not take place,(l) and it was decided by three Chambers of the Cour Royale, that the publications are, if the marriage takes place in a foreign country, absolutely necessary to the validity of the marriage.(u)
Within three months after the return into the kingdom of a French subject, who shall have contracted marriage in a foreign country, the act of the celebration of marriage, so by him contracted in a foreign country, shall be inscribed on the public register of marriages of his place of domicile.(2)
5. JURISDICTION OF THE ECCLESIASTICAL COURTS AS TO FOREIGN MAR
The ecclesiastical court in England has complete jurisdiction in all cases whatever, to decide with respect to the marriage of English subjects wherever celebrated. If celebrated in any foreign country, and it can be shown that such marriage was contrary to the general law, to the principles that obtain every where with respect to marriage; that it was under force or restraint of either of the parties; that it was incestuous, or liable to any other impediment, under which, by the law of nations, it is not allowed to marry: upon any such objection a suit of nullity may be brought before the ecclesiastical court, and wherever such marriage was celebrated, it may upon such objection be set aside.(y)
The ecclesiastical court also examines questions of foreign marriages in cases of British subjects, and sometimes of aliens; and it does this from necessity, in order to prevent a failure of justice; and with the satisfaction of knowing, that the principles which regulate English marriages, are such as are also generally applicable to marriages of foreign Christian countries; the marriage law of Europe being founded on the *same general principles, and having for its basis the ancient canon law : so that there is not
[ *131 ] much danger that the court can proceed wrongly on such general principles, and on such a basis.(z)
The court overruled an objection that the marriage was had at Paris; since, wherever the marriage was celebrated, the ecclesiastical court may inquire into its validity, looking as it would to the laws of
(r) Art. 170; Toullier, tome 1, liv. 1, tit. (2) Code Civil, art. 171. See 1 Toullier 5, p. 465, and p.
Droit Civil Francois, art. 579, p. 485. (8) Toullier, tom. 1, liv. 1, tit. 5, p. 485. (y) Harford v. Morris, 2 Hagg. Cons. R. (1) Lacon v. Higgins, 3 Stark. N. P. C. 425. 178. See Post, 138.
(z) Lindo v. Belisario, 1 Hagg. Cons. Rep. (u) Okey's Dig. 4th ed. tit. Marriage. July, 1841.-L
the country, and would enforce the matrimonial duties on all persons within its jurisdiction.(a)
6. MARRIAGE OF ENGLISH PARTIES ABROAD VALID, IF ACCORDING TO LEX
It is an established principle that every marriage must be tried according to the law of the country in which it took place. This is according to the jus gentium, whatever the regulations may be, according to which the marriage has been had; if they are what the canonical law of the foreign country supports, the canonical law of this country must enforce it.(6)
In the great case of Dalrymple v. Dalrymple,(c) where the question was as to the validity of a marriage in Scotland, where one of the parties was an English minor, Lord Stowell said, “ being entertained in an English court it (the cause) must be adjudicated according to the principles of English law applicable to such a case. But the only principle applicable to such a case by the law of England, is, that the validity of the marriage rights must be tried by reference to the law of the country where, if they exist at all
, they had their origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judgment of the law of Scotland.” Lord H., an Englishman, was married in Sicily to the Princess of B., not according to the ceremonial rites of the country, but by a priest in a private house, and in the presence of two witnesses, before whom the parties declared themselves husband and wife. On a suit here for restitution of conjugal rights by the wife, it was proved, [ *132
by the depositions of four advocates, that *according to
the decree of the council of Trent, which was the recog. nized law of Sicily, the marriage, though illicit, was still valid and indissoluble, being an expression of mutual consent to contract matrimony, in the presence of a parish priest and of two witnesses. It also appeared, that by various civil ordinances, and by the pragmatic sanction of the reigning king, Ferdinand, tit. de Delictis, parties guilty of such a marriage were, if noble, liable to imprisonment for five years, the husband in a fortress, the wife in a convent; but that this punishment in no way affected the indissolubility of the marriage. Lord H., under this law, had been sent to a fortress, from which he escaped, and the princess to a convent, from which she was released on giving bail to appear at a distant day, which had not yet arrived. In a suit by the wife for restitution of conjugal rights, Lord Stowell held the marriage clearly valid, and refused the prayer of the husband to stay his sentence of cohabitation till the period of separation would expire, when the princess was bound to appear, saying, “that the court could not borrow the criminal law of Sicily, and incorporate it into its own rules."(d)
(a) Sinclair v. Sinclair, 1 Hagg. Cons. R. (c) 2 Hagg. Cons. Rep. 54; Dodson, 6. 296.
(d) Herbert v. Herbert, 2 Hagg. Cons. R. (b) Per Lord Stowell, Herbert v. Herbert, 263; 3 Phill. R. 58. 3 Phill. 63, 64; 2 Hagg. Cuns. R. 271.
7. MARRIAGE ABROAD, CONTRARY TO LEX LOCI CONTRACTUS, VOID IN
It is a well-established principle, that a marriage celebrated abroad, and void there, as being contrary to the laws of the country in which it is had, is invalid by the law of this country.(e) This rule, however, is subject to some exceptions, which will be hereafter mentioned. (f) The doctrine was fully recognized in 1752, in the Consistory Court of London, in a case where two British subjects, being minors, and in France, solely for the purposes of education, intermarried in France. The marriage being solemnized in a private house, and by a priest not authorized by the law of France, and without the consent of parents, was declared null by a sentence of the parliament of Paris; and on a suit *by the lady for resti
*133 ] tution of conjugal rights in the Consistory Court here, Sir Edward Simpson, in an elaborate judgment, showed that the validity of the marriage must be tried by the law of France, and admitting the French sentence, not as a bar, but as evidence of the law of France, held the marriage void, and dismissed the suit. The court (Sir Edward Simpson) said, “ The only question before me is, whether this be a good or bad marriage by the law of England, &c. The question being, in substance, whether by the law of this country, marriage contracts are not to be deemed good or bad according to the laws of the country in which they are formed; and whether they are not to be construed by that law. If such be the law of this country, the rights of English subjects cannot be said to be determined by the laws of France, but by those of their own country, which sanction and adopt this rule of decision. By the general law, all parties contracting gain a forum in the place where the contract is entered into. All our books lay down this for law.(g) There can be no doubt, then, that both the parties in this case obtained a forum by virtue of the contract in France. But entering into the marriage there, they subjected themselves to have the validity of it determined by the laws of that country." And he afterwards proceeded to add, “ This doctrine of trying contracts, especially those of marriage, according to the laws of the country where they were made, is conformable to what is laid down in our books, and what is practised in all civilized countries, and what is agreeable to the law of nations, which is the law of every particular country, and taken notice of as such.”(h) And the learned judge proceeded to cite the opinions of civilians to the precise effect; and he afterwards concluded with these remarks :-“ 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 [ *134 ]
(e) Butler v. Freeman, 1 Ambl. 303. See Cons. R. 407, 408. See Gaill. lib. 2, obs. 1 Atk. 50.
123, 36. (S) Post, p. 140.
(h) Ibid. p. 512: See Sanchez, lib, 3, (g) Scrimshire v. Scrimshire, 2 Hagg. disp. 18, ss. 10, 27.
observe *the same law, the inconveniences to society must
be ihe same in both cases."(i) It is to be observed, that in this case the residence of the young man had not been of fixed continuance, but was for a few days only, though his mother and family had been resident at Boulogne about two years before the marriage; the young lady had been there only eighteen months, and for the purposes of education.
In Harford v. Morris,(k) which was a case of nullity of marriage had abroad, contrary to the lex loci, between a guardian and ward of very tender age, under the following circumstances of force or fraud. It appeared that Miss Harford was the illegitimate daughter of Lord Baltimore; that she was extremely young; was born upon the 28th November, 1759, and was placed at a boarding school by Morris, who was one of her testamentary guardians. It was alleged, that he first frequently visited her there, wrote notes to her, and formed a scheme of marriage, carried her to public places in England, and conveyed her at last to France, and from thence to the Austrian Netherlands, thence to Hamburgh, thence to Wandsbeck and Ahrensburgh, in Danish Holstein. The libel set forth two marriages, one on the 21st May, 1772. He went into France the 16th May; they had not been on the continent above five days before they arrived at Ypres, and on the 21st of May, 1772, they were married by a chap; lain in the Dutch garrison there, in the presence of two witnesses and of other persons. They did not stay in that place more than one night, but went from thence to Lisle, and from thence to Holland and to Hamburgh and other places; and upon the 3d of January, 1773, a marriage was pleaded to have been had at Ahrensburgh, in virtue of a license from the king of Denmark, granted upon the 5th of December, 1772, that is, a license to dispense with all form, and the marriage was celebrated at a private house, in the presence of four witnesses : one of these marriages was in the English language; one was a public marriage in a church; the other a private marriage by special license in the presence of witnesses. The libel set forth, that they [ *135 ]
were had contrary to the orders of the *lord chancellor,
and without the consent of the parents or guardians, in evasion of the laws of this realm, and contrary to the laws of those countries where they were celebrated ; and upon all or some of those accounts it was prayed that the court would pronounce both marriages to be null. The parties in this case had no domicile in the province of Flanders, nor of Holland, nor the United Netherlands; but on the contrary they went as subjects to the crown of Great Britain, and were considered as strangers abroad. The question, therefore, was chiefly whether, according to the laws of England, by which they were regulated, they had done the same, as in Great Britain would be a lawful marriage. Sir George Hay denied the lex loci universally to be a foundation for the jurisdiction, so as to impose an obligation upon the court to determine by foreign laws, and said, that the laws of Ypres and Denmark did not reach the case, and that they ought not to be pleaded upon it. The court considered that the residence of the
(i) 2 Hagg. Cons. R. 419. See Lord Cas. 361, 362. Meadowbank's opinion, Fergusson's Rep. (k) 2 Hagg. Cons. R. 423.