gentium, upon which the courts of this country may be supposed as competent as themselves; and certainly, in the cases of British subjects, much more appropriate judges.”(t)

In a suit for nullity of marriage instituted on the part of the wife, with reference to the circumstance of the marriage, as celebrated in France, by the chaplain of the British forces under the Duke of Wellington, and not in conformity to the law of France, on the ground that the marriage was void, because not celebrated according to the lex loci; Lord Stowell doubted, as the husband was an officer of the army of occupation, marrying an English lady, whether the law of France would apply to him, on the ground that at that time and under such circumstances the parties were not French subjects, under the dominion of the French law. Without, *however, [ *143 ] giving any decided opinion, the court admitted the libel, in order to enable the party to bring the cause to a regular decision; but it does not appear that any further proceedings took place.(u)

In the discussion of a divorce bill in the House of Lords, Lord Eldon intimated a doubt respecting the validity of a marriage which was celebrated at Rome by a protestant clergyman, both parties being protestants; and said, that where persons were married abroad, it was necessary to show that they were married according to the lex loci, or that they could not avail themselves of the lex loci, or that there was no lex loci. Some days after a Roman Catholic clergyman was produced at the bar of the House, who swore that at Rome two protestants could not be married according to the lex loci; because no Catholic clergyman could celebrate marriage between two protestants. The marriage was held to be good.(x)

In a suit for a divorce by reason of cruelty, it appeared that the parties were married at Rome in 1821. On the question as to the admissibility of the libel, which merely pleaded that the marriage was a good and valid marriage, Dr. Lushington said that he was not aware of any instance in which a marriage celebrated abroad, in the dominions of a foreign prince, had been ever pleaded to be a good and valid marriage, unless alleged that it was according to the lex Loci, or had been solemnized in the house of the British ambassador or minister of some sort. Here was a marriage solemnized at Rome by an English priest between English protestants; but how that could be a good and valid marriage by the lex loci he was yet to learn. It was exceedingly inconvenient to admit the libel before he knew the grounds on which the validity of the marriage was to be supported. The libel was generally admissible: but he must refer it back for reformation on some points, and especially as to the marriage, for the case should not go to proof whilst any difficulty remained on that point.(y)

[ *144 ]

*Whilst the British amry was at St. Domingo, two persons belonging to that army went to a chapel in the town of Cape St. Nicola Mole, in order to be married; and there

(t) Ruding v. Smith, 2 Hagg. Cons. R. 389, 390.

(u) Burn v. Farrar, 2 Hagg. Cons. R. 369, cited in Ruding v. Smith, ib. 387, 388.

(x) Case of Lord Cloncurry, Cruise on

Dignities, 276, s. 85, 2d ed. n.

(y) Lockwood v. Lockwood, Cons. Court, 1st June, 1838; Monthly Law Magazine, vol. 3, p. 273.

a service was read in the French language by a person who dressed like a priest, and interpreted into the English language by a person who officiated as clerk. The pauper did not understand the French language, but by the interpreter she understood it was the marriage service of the established church of England, read in French. She did not know that the person officiating was a priest. She received a certificate of marriage, which she lost. There was no chaplain with the British forces at that time in St. Domingo. No evidence was given of the laws or usage of the island respecting the marriage ritual there. She and the man lived together as man and wife till his death, and she was removed to his settlement. The sessions were of opinion that this order was bad and quashed it. On the case coming before the court of King's Bench, Lord Ellenborough, C. J., said, "First, considering it as a marriage celebrated in a place where the law of England prevailed-for I may suppose in the absence of any evidence to the contrary, that the law of England, ecclesiastical and civil, was recognized by subjects of England in a place occupied by the king's troops, who would impliedly carry that law with them.

then, was it a good marriage before the marriage act? Certainly, before that act a contract of marriage per verba de præsenti would have bound the parties. This was such a marriage, and performed by one who publicly assumed the office of a priest, and appeared habited as such; of what persuasion does not appear: but even if it were performed by a Roman Catholic priest, the case would be the same; for such a person would be recognized by our church as a priest capable of officiating as such, upon his mere renunciation of the errors of the church of Rome. But Rex v. Fielding,(z) shows that a marriage by a Roman Catholic priest (before the marriage act) was effectual for that purpose, which was considered as a contract per verba de præsenti. In this case the ceremony was performed in a public chapel, instead of in *private lodgings as in Field[ *145 ] ing's case. Considering therefore the case to be that the king's forces carried with them the law of England to St. Domingo, by which they and other subjects who accompanied them (in the absence of proof that any other law was in force there) may be considered as continuing to be governed, this would be a good marriage by that law. But supposing this law of England not to have been carried to St. Domingo, by the king's forces, nor obligatory upon them in this particular, let us consider whether the facts stated would not be evidence of a good marriage according to the law of that country, whatever it might be. And indeed after the ceremony of marriage, as it was understood and intended by the parties at the time to be performed openly in a chapel, by a person appearing there as a priest, authorized to perform the ceremony of marriage, and this followed by a cohabitation between the parties for 11 years afterwards, every presumption is to be raised in favour of its validity. I should have considered myself as safe in resting my opinion in favour of this marriage upon the law of England, independent of the provisions of the marriage act. But without the aid of that, I think 'every presumption must be made in favour of its validity, according to the

(z) See ante, p. 32.

law of the country where it was so celebrated, having been performed there in a proper place, and by a person officiating as one competent to perform that function." The other judges agreed, and the order of sessions was quashed.(a)

9. MARRIAGES OF ENGLISH SUBJECTS IN THE FACTORIES ABROAD.

The marriages of British subjects at the factories are regulated by the law of the original country to which they belong, which is another exception in favour of marriages not celebrated according to the laws of the place. The validity of such a marriage does not appear to have been the subject of an express decision, but is fully recognized by the opinion of learned judges and some acts of the legislature.

Sir George Hay, (b) after observing that every domicile did not

[ *146 ] give a jurisdiction to a foreign country, so that the laws

of that country are necessarily to obtain and attach upon a marriage solemnized there, said, "for what would become of our factories abroad, in Leghorn or elsewhere, where the marriage is only by the law of England, and might be void by the law of that country; nothing will be admitted in this court to affect such marriages so celebrated, even where the parties are domiciled; but where the parties are not domiciled, and only going, I will not say to evade the laws of this country, as that is an improper expression; but to celebrate a marriage there, by the laws of this country, it shall not be affected by the marriage act, from which persons are expressly exempted that are beyond the sea.(c) Can such a marriage then be called in question in this court? I cannot say that, any more than I can say a Scotch marriage shall be called in question, to affect the rights of so many people married under the notion of the marriage act not reaching them, where they mutually contracted themselves."

Lord Stowell inquired "What is the law of marriages in all foreign establishments, settled in countries professing a religion essentially different-in the English factories at Lisbon, Leghorn, Oporto, Cadiz, and in the factories in the East, Smyrna, Aleppo, and others? in all of which (some of these establishments existing by authority under treaties, and others under indulgence and toleration,) marriages are regulated by the law of the original country, to which they are-still considered to belong. An Englishman resident at St. Petersburgh does not look to the ritual of the Greek church, but to the rubric of the church of England, when he contracts a marriage with an English woman. Nobody can suppose that, whilst the Mogul empire existed, an Englishman was bound to consult the Koran for the celebration of his marriage. Even where no foreign connection can be ascribed, a respect is shown to the opinions and practice of a distinct people. The validity of a Greek marriage, in the extensive dominion of Turkey, is left to depend, I presume, upon their own canons, without any reference to the Mahometan ceremonies. There is a jus gentium upon

(a) Rex v. Brampton, 10 East, 282.

(b) Harford v. Morris, 2 Hagg. Cons. R.

(c) See 26 Geo. 2, c. 33, s. 31; 4 Geo. 4, c. 76, s. 33; 6 & 7 Wm. 4, c. 85, s. 45.

this matter, a comity which treats with tenderness, or at toleration, the opinions and usages *of a distinct people in this transaction of marriage. It may be difficult to say,

least with

*147 ]

à priori, how far the general law should circumscribe its own autho rity in this matter, but practice has established the principle in severa instances; and where the practice is admitted it is entitled to acceptance and respect.(d)

Marriages solemnized at St. Petersburgh since the Abolition of the British Factory there declared valid.]-The stat. 4 Geo. 4, c. 67, after reciting that the British factory at St. Petersburgh was by the manifesto of the Emperor of Russia declared to be abolished from and after the 20th of June, 1807, and that divers marriages of subjects of this realm resident at St. Petersburgh had, since the said 20th of June, 1807, been solemnized there by the chaplain of the Russia Company in the chapel of the said company, and in private houses, before witnesses, according to the religious ceremonies of the church of England; and that it was expedient to declare the validity of such marriages, in order that no doubts or disquietude might hereafter arise thereupon: "That all marriages (both or one of the parties thereto being subjects or a subject of this realm) that have, since the said 20th day of June, 1807, been solemnized, or that shall hereafter be solemnized at St. Petersburgh by the chaplain to the said Russia Company, or by a minister of the church of England officiating instead of such chaplain, in the chapel of the said Russia Company, or in any other place before witnesses, shall be as good and valid in law, and so deemed in the united kingdom of Great Britain and Ireland, and in the dominions thereunto belonging, as if the same had been solemnized before the abolition of the said factory."

Marriages solemnized at Hamburgh since the abolition of the British Factory there, declared valid.]—The statute 3 & 4 Will. 4, c. 45, after reciting that the British factory at Hamburgh was dissolved, and the privileges thereof abolished, in the year 1808; and that divers marriages of subjects of this realm resident in Hamburgh have, since the abolition of the said factory and privileges, been solemnized there by the chaplain appointed by the lord bishop of London, or some minister of the church of England officiating instead of such chaplain, in the British Episcopal chapel, and in private houses in *that [ *148 ] city, before 'witnesses, according to the rites of the church of England; and that it is expedient that no doubts should hereafter arise as to the validity of such marriages, declared and enacted, "That all marriages of parties subjects, or parties one of them being a subject of this realm, which have been solemnized at Hamburgh since the abolition of the British factory there, by the chaplain appointed by the lord bishop of London, or by any ministers of the church of England officiating instead of such chaplain in the Episcopal chapel of the said city, or in any other place, before witnesses, according to the rites of the church of England, shall be good and valid in law to all intents and purposes as if the same had been solemnized in the British Factory at Hamburgh before the abolition thereof."(e)

(d) 2 Hagg. Cons. R. 385, 386. JULY, 1841.-M

(e) See ante, p. 76.

10. EVIDENCE OF FOREIGN' MARRIAGE LAW.

The existence of a foreign law is a fact to be proved by appropri ate evidence, for our laws cannot take notice of foreign laws without such proof.(f) If the validity of a marriage is to be tried by the laws of other countries, such laws must be laid before the court and proved in the best manner possible; not by the opinions of lawyers, which is the most uncertain way in the world, but by certificates laying the ordinances of those countries before the court.(g)

The usual mode of proving the foreign law is by the examination and judgments of the professors of such law producing such law, and showing that it is the existing law according to their opinions.(h)

The evidence of eight gentlemen practising as lawyers, who stated their opinions of the law, was admitted under particular circumstances, without any other authentic exemplification of the laws and ordinances of the countries in question.

These witnesses with reference to the circumstances pleaded in the libel, concluded "that by the laws of the united provinces of the Low Countries, and the ordinances of the states of Holland in 1580, and 1656, there was no doubt but that the marriage in ques[ *149 ] tion was null and void on three grounds; first, on account of the incompetency of the minister who celebrated the same; secondly, on account of the minority of one of the parties; and thirdly, from the want of publication of banns."

In answer to the objection, that evidence of opinion that such is the law, is not that evidence of the law which the court ought to require, but that it ought to have had an authentic exemplification of the laws and ordinances of those countries, the court said, the particular parts of the laws which are referred to by the advocates are copied into their opinions; therefore I think there is every authentication and every ground the court can have to believe that such ordinances and such laws, as they mention, were actually by proper authority_published, and were, at the time in question, valid and in force. To be sure, the best evidence would be a sentence of a court of judicature of those countries. In the case of Scrimshire v. Scrimshire that was obtained; but in this case that would be impossible.(i)

A sentence of the parliament of Paris declaring a marriage between English parties in France void, was admitted as evidence of the law of France upon that subject. (k)

In a suit of divorce brought by the wife against her husband by reason of cruelty and adultery, the husband alleged in bar that such suit could not be entertained, because the marriage had been celebrated at Paris, and had been since dissolved by a sentence of the court at Brussels, on proceedings instituted by him for nullity and divorce, by reason of the adultery of the wife. It appeared that there had been another marriage between the parties in England, and that

(f) Freemoult v. Dedire, 1 P. Wms. 431; Vin. Abr. Foreign (C:) Feauburt v. Turst, Prec. Ch. 207.

(g) Harford v. Morris, 2 Ilagg. Cons. R. 430.

(h) Herbert v. Herbert, 2 Hagg. Cons. R.

271; 3 Phill. R. 64.

(i) Middleton v. Janverin, 2 Hagg. p.

442.

(k) Scrimshire v. Scrimshire, 2 Hagg. Cons. R. 396. 411.