grounds contained in it. But it has been said, that a contrary doctrine would lead to English or Scottish marriages being dissoluble in France or Prussia on the endless variety of grounds there permitted ;(c) the consequences of which would be most pernicious. That view is apprehended to be incorrect, because the Scotch right to divorce a vinculo matrimonii for adultery, and the limited divorce a mensa et thoro in England, as well as the total dissolution by act of parliament, proceed entirely on the absolute breach of the contract or bond of marriage. In so far, therefore, as a divorce obtained in another country does not proceed on that basis, it by no means follows that it could or ought to have *effect either in Scotland or in England, as such divorces are avowedly per[ *750 ] mitted on grounds wholly different from the actual rupture of the contract. The Scotch could admit the validity of the Prussian marriage, but as to the rights of parties arising from it, or wrongs committed by either of them, the Scotch would deal with them according to their own law. Viewing marriage only in the light of an ordinary civil contract, and holding that there has been a total violation and annihilation of it by one of the parties, it does not follow, on any fair principle of international law, that the remedy for that wrong, or the species of actio injuriarum, that is founded on it in the Scotch action of divorce, ought entirely to be regulated by what would be the remedy in the place of the contract; for it is well known, that in the case of an ordinary action of debt or obligation, or action for breach of contract, redress, when sued for in Scotland, will be afforded according to Scotch law, and not according to that of England, quoad execution and diligence.(d)

Lord Meadowbank, in giving an opinion differing from the commissaries, urged that the position, that it is a condition of the contract that the marriage was to be indissoluble, is not proved by the only circumstance urged in favour of the doctrine, viz. that the law of England does not commit to any court of justice authority to divorce a vinculo matrimonii. By marrying in England, parties do not become bound to reside forever in England, or to treat one another in every other country where they may reside according to the provision of the law of England. Their obligation is to fulfil the duties of husband and wife to each other, in whatsoever country they may be called to in the course of Providence; and they neither promise, nor have power to engage, that they shall carry the law of England along with them, to regulate what the duties and powers are which they shall fulfil and exercise, or the redress which the violation of those duties, or abuse of those powers may entitle to. All of these functions belong to the law of the country where they may eventually reside, and to which they unquestionably contract the duties of obedience and subjection whenever they enter its territo- [ *751 ] ries.(e) And further, this supposed condition, even if it had the will of the parties in favour of it by any stipulation, however express, could derive no force from that circumstance. It is too obvious to

(e) See Prussian Code published at Berlin, 1795; vol. 3, p. 84, s. 668. 739; Ferg. Rep. p. 448. 454.

(d) Ferg. Rep. 414. 416.

(c) See Lord Brougham's observations on this subject in Warrender v. Warrender, 2 Clark & Finn. 535.

admit of doubt, that no quality can be created in the relation of hus band and wife by positive or implied agreement. The Scotch courts would not dismiss an action of divorce because the parties at intermarrying had in the most formal manner renounced the benefit of it, and become bound that their marriage should be indissoluble. Nor would it be any objection to a divorce at the instance of a Roman Catholic, that his marriage was to him a sacrament, and therefore by its own nature indissoluble. These are all pacta privatorum, and cannot impede or embarrass the steady uniform course of the jus publicum, which, with regard to the rights and obligations of individuals affected by the three great domestic relations, enacts them from motives of political expediency and public morality, and nowise confers them as private benefits, resulting from agreements concerning meum et tuum, which are capable of being modified and renounced at pleasure. Accordingly the case of Campbell of Carrick, in rejecting the competency of any personal objection to bar a pursuer of declarator of marriage, establishes by the highest authority the incompetency and inefficiency of any obligations, not sanctioned by the common law, to operate on matrimonial rights. It is obvious that personal objections in bar of actions must have lain, could the benefits. claimed be either modified or renounced by the agreement or deeds of parties.

But if this supposed condition can derive no force from the will of the parties, it seems palpably impossible that it should derive any from dicta of municipal law, where the relation originated, so as to give it efficacy ultra territorium where jus dicenti impune non paretur. In the fulfilment of ordinary contracts, as to meum et tuum the lex loci contractus forms implied conditions of the contracts, and is accordingly adopted abroad, as furnishing the means of construing them [ *752 ] *aright. But this is merely a proceeding in execution of

the will of the parties, and not in the least a recognition of the authority of a foreign law. The case therefore is quite different where the will of the parties only constitutes, and does not modify, the relation or its rights; and where of course the municipal law, deriving nothing from stipulation or agreement, is merely the positive institution of the sovereign, and cannot direct the decisions of foreign courts on circumstances occurring within their own jurisdiction. But it is said that, in the case of this defender, who is domiciled within. the imperium of the law of England, as his personal succession wherever situated would be regulated by that law, his matrimonial obligations, and the redress of wrongs relative to them, ought to be regulated by the same law. But it is to be observed that, in questions of succession, the lex domicilii regulates; because as the right of testing by a positive declaration of will is recognized jure gentium, the presumed will of a defunct is also to be enforced by the same law, and that will must be gathered from the rules of intestate succession in his own country, which he probably intended should regulate its descent. Matrimonial rights and obligations, on the contrary, so far as juris gentium, admit of no modification by the will of parties, aud foreign courts are therefore, nowise called upon to inquire after that will, or after any municipal law to which it may correspond. They are bound to look to their own law, and it is with all deference thought

to be in a particular degree contrary to principle to make that law bend to the dictates of a foreign law, in the administration of that department of internal jurisprudence which operates directly on public morals and domestic manners. The very same principles which prescribe to nations the administration of their own criminal law, appear to require a like exclusive administration of law relative to the domestic relations. Hence in both England and Scotland, the most regular constitution abroad of domestic slavery,(g) was held to *afford no claim to domestic service in this country, though [ *753 ] restricted for only such service, and under such domestic authority as our law recognized. The whole order of society would be disjointed, were the positive institutions of foreign nations concerning the domestic relations, and the capacities of persons regarding them, admitted to operate universally, and form privileged casts, living each under separate laws, like the barbarous nations during many centuries after their settlement in the Roman Empire.(h)

It has been submitted by a modern author, that neither the lex loci contractus, nor the law of the country in which there has been only such a temporary residence as enables a party to sustain a suit, ought to be adopted, but that the appropriate law by which the dissolubility of marriage is to be determined, is that of the actual domicile.(i)

Having stated some of the general arguments which have been adduced against and in favour of the jurisdiction of the Scotch courts, we now proceed to the precise issues which have been considered in the various cases which have occurred on this subject.

1. Both Parties Scotch, Murriage in England, domicile always in Scotland.]-A marriage contracted in England between Scotch parties, whose domicile was properly in Scotland at the time of marriage, and who afterwards returned, and did actually reside in Scotland, may be dissolved by sentence of divorce in the courts of Scotland. In Edmondstone v. Lockhart,(k) both parties were of Scotch families, and born and educated in Scotland. The pursuer entered into the army, and was on foreign service, but afterwards retired, and settled in his native country. Having at a subsequent period of his life, obtained a company in the Scotch militia regiment of his own county of Lanark, he was stationed with that corps in England, and was then married in 1805, according to the English ritual, to [ *754 ] the defender, who was sister of the commanding officer, and resided at the time in his family. In contemplation of that marriage, the pursuer's resignation had been previously proposed to the colonel of the regiment and had been accepted. An antenuptial contract had

the parties had come, on the clear and obvious principle, not only of the injustice of the contract, but its repugnance to the laws and institutions of Scotland. See Case of Slave Grace, 2 Hagg. Adm. R. 94. Williams v. Brown, 3 Bos. & Pull. 69.

(g) In the case of Somerset it was decided that a heathen negro slave, when brought into England, owes no service to his master, 11 St. Tr. 340; 20 Howell's St. Tr. 70; Lofft's Rep. 1; 1 Ld. Raym. 146; 2 B. & C. 448; Knight v. Wedderburn, 15 Jan. 1778, Mor. Dict. Dec. 14, 545, in which all effect (h) Lord Meadowbank in Rep. Gordon v. was denied to the relation between the Pye, 4to. p. 86. 90. Ferg. Rep. 357-362. master and slave or obligation of service (i) 1 Burge on Fo. Law, 680. 688. for life, although perfectly warranted by (k) Ferg. Rep. 168-208. 463; Fac. Coll. the law of the British colony from which 1 June, 1816.

also been executed in the Scotch form, relative to the patrimonial concerns of the parties, and for eight years they cohabited together as husband and wife in Scotland, on a farm granted on lease to the pursuer by the defender's brother. But the pursuer accused her of having there entered into an adulterous connection with one of his servants. Against his action of divorce she pleaded in defence that her marriage having been celebrated under the English law, was indissoluble by judicial sentence. In this case it was established by evidence that the only domicile of both parties was in Scotland at the date of the action-indeed, that during their whole lives, both had been citizens and subjects of that country. If the law of the defender's real domicile should govern the decision in such cases, no doubt therefore could exist that the usual conclusion of the Scotch action for divorce a vinculo matrimonii must be sustained. This was held to be the universal rule. At the same time, all the circumstances relative to the particular contract of these parties, except the place of its date, and all the general considerations of justice and expediency on which the principles of international law were founded, likewise led to that result. This case was seriously contested, and at the close of the discussion, when the court came to decide, two of the judges in the primary court were of opinion that the conclusions and allegations of the pursuer ought to be sustained as relevant. The other two judges of the same court were of opinion that this was an extreme case against the law of the contract, but that nevertheless the English rule ought to be preferred. By the rule of the court in case of equality, judgment was given for the defender as follows:-"In respect it is admitted, that their marriage was regularly solemnized in England, found, that neither the alleged domicile of the parties in Scotland, nor the alleged commission of adultery there by the defender, can have the effect of altering the condition of the contract [ *755 ] between the parties as indissoluble secundum legem loci contractus, so as to authorise that court to pronounce sentence of divorce a vinculo matrimonii." Application was made to the court of session for a review of this judgment, and it was remitted to the commissaries with instructions "to alter the interlocutor complained of, to sustain the action, and proceed therein according to law." The judicial proceedings in this case were ultimately terminated by an extrajudicial compromise between the parties.

2. Husband only a native of Scotland, Residence in England, but Scotch Domicile.]-The Scotch courts have jurisdiction to entertain suits for dissolving marriages where the husband only is a native of Scotland, although the parties should have latterly resided principally in England, but in fact had a Scotch domicile.

In the discussion which took place in the house of lords in the case of Tovey v. Lindsay, the doctrine of the absolute indissolubility of an English marriage, except by act of parliament, was incidentally argued on an appeal against the decision in Scotland dissolving an English marriage celebrated at Gibraltar, which place is held to be under the law of England. The opinion of Lord Eldon, C., and Lord Redesdale, were unfavourable to the power or comptency of the Scotch courts to pronounce decrees of divorce a vinculo of English marriages.

In this case the husband was born in Scotland where he remained chiefly until he went with his regiment to Gibraltar in the year 1781; at that place he was married by the chaplain of the regiment, according to the rites of the church of England to a native of England. Up to the year 1792 it was admitted that respondent's domicile was in Scotland, in that year he removed with his family to Durham, for the purpose, as stated, of the education of his children. The husband having sold out of the army in 1794, procured an appointment in the commissariat department, in which he still remained as deputy commissary general. During this period he was occasionally absent on duty in various places, but his family remained at Durham, where he joined it as often as he had an opportunity. In 1802, a misunder- • standing having *arisen between him and his wife, they agreed to separate; and a deed of separation according [ *756 ] to the law of England was executed, by which he agreed to pay to her trustees an annuity for her life, whether married or sole. The husband raised an action against the wife before the commissaries of Edinburgh for a divorce on the ground of adultery, which was accordinly decreed. The wife contended that she resided in England, and was separated from her husband under an English deed of separation, and that as the marriage took place abroad within the pale of the English law, the locus contractus was quite out of the question. The husband insisted that he was born and domiciled in Scotland, that it was a Scotch marriage, and that the deed of separation was no bar to the suit. Considering the great importance of the question, and the very serious effect that the decision might have upon the civil relations of families, and even upon questions of property, Lords Eldon and Redesdale thought the best step that could be then taken would be to deșire the court below to review its own decision, and the cause was remitted for further consideration. The death, however, of the husband shortly after the case was returned to the court of session, put an end to all further proceedings.() Lord Redesdale observed, according to the principles of the Scotch court any one from any quarter may go and establish a domicile in Scotland and by that means, even in the face of a deed of separation, draw his wife to a Scotch forum and proceed against her for an absolute dissolution of the marriage. If this should prevail, any person had it in his power to alter the nature of his most solemn engagements. The wife might say that such was not her contract; and if this be not held a sufficient answer, the Scotch courts may, on the same principle, judge all other contracts by their own law, as well as that of marriage. It appears contrary to justice that one party should be able at his option 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.(m)

*In Warrender v. Warrender(n) the principal question [ *757 ] was, whether the Scottish Courts have jurisdiction to

entertain suits for dissolving marriages contracted and solemnized in

(1) Tovey v. Lindsay, 1 Dow, 117; Ferg. Rep. 265. See 2 Clark & Finn. 565. (n) Lord Redesdale, in Tovey v. Lind

say, 1 Dow, 140.

(n) 2 Clark & Finn. 488; 9 Bligh,89