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general principle is, that the lex loci is to be the governing rule in deciding upon the validity or invalidity of all personal contracts. (m) An English contract, the subject of decision in a Scotch court, must be tried by reference to the law of the country where the contract had its origin. The principle, that a contracting party shall not be able to dissolve a contract by a law different from that under which it was formed, and by which the other party understood it to be governed, is very generally adopted by the Scotch courts. Thus in Mitchell v. Mowatt.(n) the custom of Holland prevailed over the law of Scotland, with reference to a Dutch factor's right of retaining goods on the security of which he had given credit. In Lawson v. Maxwell, (o) a surgeon's privilege, recognized by the law of Scotland, to be paid in preference to the other creditors of a patient, was rejected, because it was not acknowledged by the law of England, under which the debt had been contracted. In Campbell v. Ramsay,(p) interest at the rate of 81. per cent. was recovered on a bond granted in India, although the transaction was usurious by the law of Scotland. Although the rule as to the lex loci con[ *743 ] tractus is of very general application, particularly as to the constitution and validity of personal contracts and obligations, it is not universal. In the first place it does not apply to contracts or obligations relative to real estates. In the second place, no regard is paid to the lex loci where it appears that the parties had a different law in view at the time they entered into the contract.(g) So also the lex loci is disregarded in those cases in which it is contrary to the general and universal rules of justice,(r) and where its application would be opposed to the religion, morality, or municipal institutions of the country in which it is sought to be enforced.(s) The rule of the lex loci contractus unquestionably applying to the constitution of marriage, the question is, whether a different rule can be adopted with consistency as to the dissolution of the contract of marriage? Or can the rule as to the dissolution of marriage be modified and controlled by an arbitrary change of domicile at the will of either or both of the parties? Lord Brougham said, that although the English jurisprudence adopts the principle, that a marriage good by the laws of one country is held good in all others where the question of its validity may arise, they would not perhaps, in certain cases which may be put, be found very willing to act upon it throughout. "Thus we should expect that the Spanish and Portuguese courts would hold an English marriage avoidable between uncle and niece, or brother and sister-in-law, though solemnized under papal dispensation, because it would clearly be avoidable in this country. But I strongly incline to think that our courts would refuse to sanction, and would avoid by a sentence, a marriage between those relatives contracted in the Peninsula under dispensation, although beyond all doubt such a marriage would there be valid by the lex loci contractus,

(m) Ante, pp. 120-123.

(n) Lord Kilkerran's Rep. 11th Decemb. 1746; Ferg. Rep. 85.

85.

(0) Fac. Coll. 12th Feb. 1784; Ferg. Rep.

86.

(p) Fac. Coll. 15th Feb. 1809; Ferg. Rep.

(q) Robinson v. Bland, 1 W. Bl. 259.

(r) Ferg. Rep. 394. 396.

(s) Ante, pp. 126. 130.

and incpapable of being set aside by any proceedings in that country."()

It cannot be deemed irrelevant to state the general reasoning which has been urged on the one hand in favour of the lex loci contractus, and on the other of the law of the domicile of the parties. It should be observed that those observations *were [ *744 ] made in a case where both the parties were natives of England, had regularly married according to the forms prescribed by that country, which was their domicile of residence, but the defender had resided forty days in Scotland, where adultery was committed, and was personally cited in an action of divorce.(u) No doubt was entertained of the jurisdiction, had the parties been Scotch and married in Scotland, but the doubt arose on account of the parties being foreigners, married in a kingdom where the marriage contract is indissoluble by judicial sentence.

Argument in Favour of Lex Loci Contractus.]-In ordinary cases 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 matrimonial 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.(x) But in judging of the effects of the marriage 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.

It has been urged that the unqualified admission of such an arbitrary rule of decision, is pregnant with the most serious mischief to marriage, the most important of all the relations of society. If, for instance, the temporary residence of a party coming from England for more than forty days were to constitute the rule for determining the question of matrimonial status, the marriage state, contrary to its very essence and nature, would be rendered loose and unsettled, by being made subservient to the capricious views of the married pair, as often as they inclined to move from one country to another. In particular, the English marriage contract, which is sacred and inviolable, might be subverted at the will of either of the parties who chose to come to Scotland for a residence of merely forty days, or even of one day, if served with a personal *citation; and [ *745 ] thus an unjustifiable temptation would be held out to married persons, not only to violate their sacred vows and engagements, and, with them, all the important legal provisions dependent upon them, but also to commit openly a fraud upon the law of their proper domicile. These consequences, which are far from being imaginary, must inevitably follow, were the mere transient residence of the parties to afford the rule of decision; and although perhaps, from the less frequent changes which would then occur, they might not exist in the same distressing degree, if a more permanent domicile were required, nevertheless it has been apprehended that even then they

(t) 2 Clark & Finn. 531.

(u) Gordon v. Pye, 4to. Ferg. R. 276.

Sce 1 Burge on Foreign Law, 680-693. (x) Ante, p. 123–126.

must still take place to an extent sufficiently alarming, in every case where the domicile happens to run counter to the agreement of parties, and to the lex loci contractus. In these circumstances, and looking to such extraordinary and inconsistent results, with a degree of alarm, it has been thought that any principle which is to lead to them cannot be correctly applied. It will be necessary, therefore, to have recourse to some other principle, and it is contended that in a question of matrimonial status, even more than in any other question, none can be safer or more expedient than the lex loci contractus. The relation constituted by marriage is unquestionably the most sacred and important of all the relations in civil society, and that which it most concerns the citizens of every state should be fixed and determined. If, therefore, the principle of comitus, or concession by one foreign state to another, is at all to be admitted, it seems impossible to imagine a case which calls more loudly for its application than the case of marriage. Upon just and enlighted views of international jurisprudence, the Scotch courts every day give effect to other ordinary foreign contracts, and to all their adjuncts and qualities; and why this should be denied to civil questions, affecting either the rights, or the status personarum, arising out of the relation constituted by the marriage contract, cannot be easily comprehended. If the mode of constituting the relation, as well as the relation itself, is received, the consistency of not receiving at the same time the modifications of it cannot be perceived. By analogy, clearly the principle of comitas *should be extended thus far; and [ *746 ] accordingly it is expressly so laid down by Huber, who, after stating that marriage, if lawful in the place where it is contracted and celebrated, will be valid and effectual every where, distinctly adds, Porro non tantum ipsi contractus ipsæque nuptiæ, certis locis rite celebratæ, ubique pro justis et validis habentur, sed etiam jura et effecta contractuum nuptiarumque in iis locis recepta ubique vim suam obtinebunt.(y) It is by a strict adherence to this principle alone that the numerous and important rights and interests dependent upon marriage are to be maintained. Whenever, therefore, a contract, or quasi contract, intervenes, it ought to be the governing rule, although the parties may happen, from motives of choice or necessity, to have subsequently changed the place of their residence. Once lawfully executed, there appears to be the strongest reason, in justice and expediency, to uphold the contract according to the original intention of the parties, and the express stipulation of their agreement. It is the duty of the parties contracting to perform their respective stipulations; and it is the duty of courts of law to enforce that performance, where it is åttempted by either party to be evaded. As, therefore, in the present case, the parties have voluntarily contracted an indissoluble agreement, indefeasible in its own nature, and by the law of the country where it was made, it does not appear that the Scotch court, in judging between those parties, can competently invert that agreement, or impose upon them rules and regulations which they never contemplated, for which no provisions is made, either by their

(y) Huber, De Conflictu Legum, s. 9.

contract or by the law of England, and for which no effectual provision can be made by the law of Scotland. In a word, in every case of civil right between parties, and more especially in a case originating in a marriage contract, the legal contract of these parties is the surest and most unerring guide by which a court of law can walk; and, if possible, the conditions of the contract ought never to be departed from. It was further contended, from several other considerations, "that there is nothing to induce a court of justice to depart from a general rule of acknowledged utility, or to prevent it from judging in the case of a marriage [ *747 ] contract, as in every other question arising from a civil contract executed abroad, according to the law of the place in which it was executed, and in contemplation of which the agreement was made. Neither the general policy nor the manners of Scotland can require that such a sacrifice should be made to them, as that the Scotch court should assume to itself the power of dissolving an union, which by the laws and religion of the country where it was celebrated is accounted sacred and inviolable; which even in Scotland, though not in the same degree, is nevertheless, in relation to its duration, regarded with so much veneration, that every attempt to infringe upon it is watched with a jealous vigilence, and every judgment dissolving it pronounced with an evident reluctance."(z)

Argument in favour of the Law of the Domicile.]-It has been powerfully argued on the other side, that in all questions involving the consideration of status, neither the private agreement of the parties, nor the law of the country in which the relation was constituted, can control or stand in the way of the law of the domicile at the period of commencing the action. The following observations of a learned Scottish Judge, upon the rule of divorce, are deserving of attention :— "It must be admitted that in every country the laws relative to divorce are considered as of the utmost importance, as public laws affecting the dearest interests of society. With us the laws relative to divorce are founded on divine authority. How can a person withdraw himself from obedience to such laws? Are these laws relaxed as to a person domiciled in Scotland, because his marriage is contracted in a country where the law of divorce is different? If two natives of Scotland were married in France or Prussia, according to the laws of those countries, the marriage will no doubt be valid here, but would they be entitled to come into the commissary court, and insist for a dissolution a vinculo matrimonii, merely because their tempers were not suitable, *which in France was ground of a divorce, or for any of the numberless reasons for dis[ *748 ] solving a marriage which are allowed by the laws of Prussia. But if we would not listen to the lex loci when it facilitates divorce to a degree which our law considers as inconsistent with the best interests of society, and as not warranted by the divine law, on what principle are we to give effect to the lex loci which prohibits divorce, even adulterii causa, though permitted in this country under the sanction

(z) Mr. Commissary Tod's Opinion in Gordon v. Pye, 4to, p. 33-35; 38; Ferg. Rep. p. 311-318.

SEPTEMBER, 1841.-2 O

of the divine law." The same learned judge concluded his argument by saying,-"In short, although a marriage which is contracted according to the lex loci will be valid all the world over, and although many of the obligations incident to it are left to be regulated solely by the agreement of the parties, yet many of the rights, duties and obligations arising from it are so important to the best interests of morality and good government, that the parties have no control over them, but they are regulated and enforced by the public law, which is imperative on all who are domiciled within its jurisdiction, and which cannot be controlled or affected by the circumstance that the marriage was celebrated in a country where the law is different. In expounding or enforcing a contract entered into in a foreign country, and executed according to the laws of that country, regard will be paid to the lex loci, as the contract is evidence that the parties had in view the law of the country, and meant to be bound by it; but a party who is domiciled in Scotland cannot be permitted to import into that country a law peculiar to his own case, and which is in opposition to those great and important public laws, which the Scotch legislature has held to be essentially connected with the best interests of society."(a)

Mr. Commissary Fergusson observed,-"It is in each state obviously the safest and most natural course to follow the rules of its own system in enforcing performance or giving redress between foreigners for breach of the duties of those relations, which are juris gentium, committed within its own territory; because it is not to be presumed that courts of justice are fully acquainted with any code but that of their *own land, and if they were bound to [*749] prefer to it that of the country from which each foreign party comes, who is cited before them, it would follow, that in all such cases they must seek their information from foreign lawyers; and according to that information must form separate rules of judgment for the inhabitants of each state who may be convened before their tribunals. That they should do so is indeed necessary when the question is, whether the relation or contract itself has really been constituted abroad; because this must be judged of secundum legem loci contractus."(b)

The Lord Justice Clerk maintained that no private agreement or convention of parties could affect the rights resulting from the relation of marriage. That it was equally clear, that parties who have contracted the relation of marriage in a foreign country, when they take up their residence in Scotland, must have their rights regulated by the law of that country and not by that of the foreign state. It would be strange indeed if a Scotch man and woman, married at Berlin by a regular clergyman of that protestant country, and according to the forms of its church, should, on their return to Scotland, be entitled to maintain that their rights, particularly in reference to divorce, must be regulated not by the laws of Scotland, but by those of the Frederican code, and that either party might sue for divorce in the Scotch court on the endless variety of whimsical and absurd

(a) Lord Robertson, Ferg. Rep. 398- (b) Gordon v. Pye, 4to. Rep. 71. 0; 415.

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