parties abroad was merely for the purpose of the marriage, and that they were transient passengers, voyageurs, not going into the country with a view of becoming subjects of that country. The learned judge said, "I conceive the law to be clear, that it is not the transient residence, by coming one morning, and going away the next day, which constitutes a residence, to which the lex loci can be applied, so as to give a jurisdiction to the law, and cause it to take cognizance of a marriage celebrated there. It is certain that domicile or established residence (that is, such a kind of residence as makes the party subject to the laws of that country) may have that effect; and with respect to persons so domiciled, the laws of the country must be adhered to in contracts made there. This was the case of Scrimshire, in which all the proceedings of the Court of France were laid before the court." The learned judge said, that in the case of a man going to Calais, marrying there, and coming away the next day, that he should hold that as much a good marriage, and as agreeable to the law of this country, as a marriage in Scotland. That the laws of France or Denmark had no application to such a case as this, for all foreign laws related to people considered as subjects, and the parties in this case *could not be so considered. The court rejected the [ *136 ] libel, but the Court of Delegates decided the marriage to be void, upon the ground of force and custody, without reference to the lex loci.(l) The doctrine of the learned judge must, however, be considered as overruled by a subsequent case, in which the circumstance of the parties having been only three days in the country where the marriage was celebrated, was relied on for the purpose of avoiding the application of the lex loci contractus. The court, however, decided the marriage to be void, because it was so by the law of the place where celebrated. In this case an English minor, sent to St. Omer's for education, went to Furnes, in the Austrian Netherlands, and there was married by a priest, in the Dutch language, to a woman of St. Omer's. On proof by practising advocates that the marriage was invalid by the laws of Holland and Flanders, on account of the incompetency of the minister, the minority of the man, and the absence of the banns, the the marriage was declared invalid in the Consistory Court.(m) In a recent suit for the restitution of conjugal rights instituted by the husband, it was pleaded that the asserted marriage was void, as not being conformable to the laws of Rome, where it was celebrated. In order to obtain a valid marriage at Rome, it is necessary that there should be a solemn renunciation of the protestant religion, and that both parties should confess themselves to have become Roman Catholics, and that certain other ceremonies should be gone through. The parties, Miss Kelly, then about nineteen, with her mother, and Mr. Swift and his mother, met at the same hotel in Florence. Mr. Swift paid attentions to Miss Kelly, which were not altogether rejected; he was permitted to apply to the mother, but she refused (1) 2 Hagg. Cons. R. 436, n. Mr. Baron (m) Middleton v. Janverin, 2 Hagg. Cons. Eyre is stated to have had great difficulty on R. 437. the point of lex loci. her consent. The two families removed to Rome: and it was alleged by Swift that a secret marriage then took place; and the validity of this asserted marriage at Rome was the question at issue. The wife denied her consent to any fact of marriage; but an [ *137 ] attachment, a willingness on her part to be united to Swift, could not be denied, because she was ready to sign a promise to marry him on her coming of age. Consummation was strongly alleged in the libel, but it was also strongly denied by the other party. The sentence of the court was, that the pretended marriage, if in fact any such was had between the parties, was void, and that Miss Kelly was at full liberty to contract and solemnize legal marriage with any other person, and Mr. Swift was condemned in the costs of the suit.(n) (n) Swift v. Kelly, Arches' Court, 9th of July, 1833. An appeal against the decision in this case is pending before the judicial committee of the Privy Council. It seems that the marriage in this case was held valid by the Privy Council, on the ground that there had been a sufficient conformity to the lex loci. See 5 Jurist, 168. The following is a short statement of the facts: Miss Elizabeth Catherine Kelly, when nineteen years of age, became first acquainted with Mr. William Richard Swift, in the month of February, 1829, in Florence, where the said Mr. Swift then resided with his moth. er. The said Mr. Swift made to Miss Kelly the proposition of a secret marriage together; the young lady rejected the proposal, and declared that she would never consent to any marriage without the consent of her own mother, Mrs. Mary Anne Kelly. In the month of February, 1830, Miss Kelly continued her travel, and proceeded to Rome with her said mother. Shortly after, Mr. William Richard Swift and his mother the Countess Mulandi, arrived at Rome, and took an apartment at the Hotel della Gran Bretagna, where, a short time before, the two ladies, Mrs. Kelly and Miss Kelly, had also arrived. The inmates, although living in sepa. rate apartments, nevertheless continued secing each other as they had done before when at Florence. Mr. Swift availed himself of this opportunity for again urging the said Miss Kelly to comply with the proposal which he had before made to her, of being married together. Miss Kelly did not then give the same refusal as before, but gave her consent to a marriage to be contracted at a future time, and when she would be of age, and declared that she was willing to sign her consent to that in an instrument which would be prepared for it by Mr. Swift him self. In the meantime Mr. Swift actually made abjuration of the protestant religion, and embraced the Roman Catholic. Miss Kelly is represented as quite ignorant of all the said Mr. Swift had been doing, both with regard to his said abjuration, as well as the license which he says he had procured from his Eminence, the Cardinal Vicar of Rome, for the celebration of his marriage with Miss Kelly. Late in the evening of 25th of March, 1830, the young lady having proceeded to the apartments of the Countess Molandi, at the desire of Mr. Swift, found there with the latter three persons entirely unknown to her. When there, Miss Kelly had two paper writings presented to her for her to sign them; the young lady, without examining the papers, signed them, under an idea that they contained the promise in question of a marriage at a future time; and she immediately went away back to the apartments of her mother, Mrs. Kelly. Of what might follow at the apartments of the countess, after Miss Kelly had signed the two papers, she had not any knowledge whatever. These things being done, Mr. Swift afterwards said to Miss Kelly that he considered. her as his lawful wife after the celebration of the wedding on the evening of the said 25th of March. Surprised and angry, Miss Kelly declared that the pretended marriage could not be valid, by it being done without her knowledge, and that she would never more have any thing to do with him. On the 13th of April, in the apartments of the said countess, Miss Kelly, in the course of conversation, had some discourse with Mr. Swift, from whom she then for the first time heard that of the two paper writings which she had signed in the evening of the 25th of March, one contained her abjuration of the protestant religion, and the other her consent to a marriage with Mr. Swift. A private conference was appointed to take place between Miss Kelly and Mr. Swift. In this conference, Miss Kelly again vowed that she' was determined never more to have any thing to say to him, the said Richard Swift, and resolved to take proceedings for having the marriage of the 25th of March declared null and void, by reason of its having been fraudulently extorted. To this Mr. Swift made opposition. Since that conference nothing more seems to have passed between the two parties. In the meantime Mr. Swift pretends that The author has not the means of stating the grounds [ *138 ] upon which the decision turned, the case not being yet reported, except so far as relates to the objections taken to the answers of Mr. Swift.(0) In an action of assumpsit, in which the marriage of the parties was in dispute, it appeared that, about five years before, the defendant, then being the widow of one Isaacs, met with Mr. Higgins at Paris, and that, after being for some time acquainted, they went to Versailles for the purpose of being married. A witness was called, who stated that he was present at Versailles when the marriage between the parties was celebrated by a protestant priest, or generally reported to be a priest, and wore the habit of one at the time of the marriage. No other witness was present except a femme de chambre in the service of the defendant. Some written document was then made relating to the marriage, and signed by the parties, and this was delivered to this witness, who afterwards married, and whose subsequent residence could not be ascertained. The parties had cohabited as husband and wife, at Paris, for about a year after the marriage, and afterwards in Ireland, the husband being an attorney there, and had been visited as such by persons of both sexes, and of great respectability. The prescriptions with respect to marriage in the [ *139 ] French code had not been complied with, and the French vice-consul, who was examined, stated that it contains no clause nullifying a marriage on account of such non-compliance. Evidence was given that a marriage in France, celebrated in fact without observing the previous forms prescribed by the code, would be considered by the French courts to be a mere nullity. Lord Tenterden, C. J., was of opinion, that the marriage was illegal in conformity with the decision of Lord Stowell,(p) that a foreign marriagewas valid or invalid in this country according as it was valid or invalid by the law of the country in which it was celebrated. In that, case the question was, whether the marriage was valid according to the law of Scotland where it was contracted. Here, the question is, whether the marriage was valid according to the law of France; and it appears from the evidence, and upon reference to the French code, that the marriage has not been contracted according to the legal cere-. monies which were essential to a valid marriage in France. The French code contains no express declaration that a marriage other-' wise celebrated shall be deemed to be void, but merely directs that the marriage shall be celebrated in a particular manner; but it is proved by the witness, that marriages otherwise celebrated are void.(g) Consul's statement is certainly incorrect, that all marriages contrary to articles 63, 64, and 74 of the civil code are void. The breach of article 63 (which requires two publications of the partics' names, &c. at eight, days' interval, before the door of the townhall) is punishable by fine on the civil officers and parties, by article 192; and article 193, in imposing a similar fine for a breach of the much more essential condition of article 165, which makes it essential that the marriage shall be celebrated publicly, and [ *140 ] *English subjects, after a residence in France of six months, may be married according to the law of France, in the same manner as French subjects: and such residents may, without six months' residence, be married at the English ambassador's by his chaplain, and such marriages are common and perfectly legal.(r) 8. WHEN MARRIAGES ARE VALID, THOUGH NOT CELEBRATED ACCORDING TO THE LAW OF THE PLACE. Although English decisions have adopted the rule, that a foreign marriage, valid according to the law of the place where celebrated, is good every where else, yet they have not, on the other hand, established that marriages of British subjects not good according to the law of the place where celebrated, are universally, and under all possible circumstances to be regarded as invalid in England. "It is, therefore (observed Lord Stowell)(s) certainly to be advised, that the safest course is always to be married according to the law of the country, for then no question can be stirred; but if this cannot be done, on account of legal or religious difficulties, the law of this country does not say that its subjects shall not marry abroad. And even in cases where no difficulties of that insuperable magnitude exist, yet if a contrary practice has been sanctioned by long acquiescence [ *141 ] and acceptance of the one country, that has silently per mitted *such marriages, and of the other which has silently accepted them, the courts of this country, I presume, would not incline to shake their validity upon these large and general theories, encountered as they are, by numerous exceptions in the practice of nations." And accordingly Lord Stowell decided, that a marriage had under peculiar circumstances at the Cape of Good Hope, during that the celebration shall be before the civil officer of the domicile of one of the parties, expressly says, the penalty shall be enforced, "though the contraventions should not be judged sufficient to pronounce the nullity of the marriage," thereby implying that some contraventions, even of article 165, would not produce nullity. And it has been decided (Cour de Cass. Juin, 1803,) that non compliance with article 74, by residing six months in the place of marriage, does not render the marriage void. But the marriage in the text, being not celebrated by the civil officer nor publicly, nor in the domicile of either of the parties (contrary to articles 74 and 165,) would rather seem to be void. By article 191," Every marriage which has not been contracted publicly, and has not been celebrated before the competent public civil officer may be attacked by the parties themselves, by the fathers and mothers and ancestors, and by all those having a vested and actual interest in it, and also by the public authorities;" and though cohabitation followed in this case, it would seem that it would not even fall within the restriction of article 196, which provides, “that when (s) 2 Hagg. Cons. R. 390, 391. British occupation, was valid, though not in conformity with the Dutch law. In that case the husband (an Englishman) was a person entitled by the laws of his own country to marry without the consent of parents or guardians, being of the age of twenty-one; but by the Dutch law he could not marry without such consent until thirty years of age. The lady (an Englishwoman) was under the age of nineteen, her father was dead, her mother had married a second husband, and she had no guardian. The time of the marriage, which took place shortly after the compelled surrender, was considered material. The case, therefore, had no resemblance to the case of Ireland, the Isle of Man, the plantations, or even Minorca, where recognized civilized governments are established, and a permanent system introduced, of which all must be supposed to be cognizant. The Cape was conquered, but not ceded; and it remained for a treaty of peace to decide to whom it was to belong. The ancient civil sovereignty was suspended, and no other fully established in its place. The character of the individuals was likewise considered material: the husband not having gone there as a volunteer or settler, but as a military servant of the British government. The court also rested the validity of the marriage on the distinct British character of the parties-on their independence of the Dutch law, in their own British transactionson the insuperable difficulties of obtaining any marriage conformable to the Dutch law-on the countenance given by British authority and ministration to that transaction, and upon the whole country being under British dominion. Upon that occasion Lord Stowell said, "Suppose the Dutch law had thought fit to fix the age of majority at a still more advanced period than thirty, at which it then stood, at forty, it might surely be a question in an English court, whether a Dutch marriage of two British subjects, not absolutely domiciled in Holland, should be invalidated in England upon that account; or in other words, whether a protection intended [ *142 ] for the rights of Dutch parents, given to them by the Dutch law, should operate to the annulling a marriage of British subjects, upon the ground of protecting rights, which do not belong, in any such extent, to parents living in England, and of which the law of England could take no notice, but for the severe purpose of this disqualification. The Dutch jurists (as represented in this libel) would have no doubt whatever, that this law would clearly govern a British court. But a British court might think that a question not unworthy of further consideration, before it adopted such a rule for the subjects of this country." In deciding for Great Britain upon the marriages of British subjects, they (the Dutch jurists) are certainly the best and only authority upon the question, whether the marriage is conformable to the general law of Holland: and they can decide that question definitively for themselves, and for other countries. But questions of a wider extent may lie beyond this: whether the marriage be not good in England although not conformable to the general Dutch law; and whether there are not principles leading to such a conclusion? Of this question and of those principles they are not the authorized judges; for this question and those principles belong either to the law of England, of which they are not the authorized expositors at all, or to the jus |