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It is much to be regretted that some more extended report of the very learned arguments which I well remember were urged upon that occasion, and the multitude of authorities quoted, have not been communicated to the profession and the public.”(!)
After the decision in Lolley's case had been communicated, the Scotch court ordered the cases of Newte and Russell Manners, then in dependence before it, to be fully argued, and the English rule of law, as to the indissolubility of marriage, which was the lex loci contractus, was very ably urged. The judgment was, that according to the settled principles of the common law and statute law of Scotland, if there be no collusion between the parties, or other valid exception against the pursuer's right of action, adultery committed in Scoiland is a legal ground for divorce, without distinction as to the country where, or the form in which, the marriage was celebrated. And accordingly a decree of divorce was pronounced in the case of Russell Manners, and in subsequent cases.(m)
Subsequent Cases, recognizing the Doctrine in Lolley's Case.]—In MCarthy v. De Caix,(n) a person of the name of Tuite contracted a marriage in this country with an *Englishwoman; the
[ *778 ] marriage being solemnized in England, but he being him. self a Dane by birth, fortune and domicile. He afierwards removed his wife from this country, the locus contractus, (with which he appears to have had no further connection,) to the dominions of the king of Denmark, where his subsequent domicile continued to be; and in that kingdom the marriage was dissolved by a valid Danish divorce, as far as such a divorce could dissolve it. It was decided by Lord Brougham, C. upon the authority of Lolley's case, that no proceedings in a foreign court could operate to dissolve or affect a marriage celebrated in England. In Conway v. Beazley,o) distinguished by the circumstance of the second marriage having taken place in Scotland, the husband was married to Miss R. on the 20th May, 1810, at Kensington, Middlesex. On the 29th August, 1823, they were divorced by sentence of the Commissary court at Edinburgh; and in 1824 the husband contracted a second marriage at Edinburgh with Emily Conway the other party in the cause. The first wife did not die till 1830, and the second wife prayed to have her marriage annulled, on the ground that when that marriage was solemnized the husband had a wife alive. It appeared that the first wife was the daughter of a person residing in Westminster, where she had resided from her childhood, and that at the time of her marriage with Beazley, and during their subsequent cohabitation, they were respectively domiciled in England; that from their separation Beazley continued to reside in England till the beginning of 1823, when he went to Scotland on business as an architect, meaning to return to England as soon as it was concluded ; that in April, 1823, when Mrs. Beazley instituted proceedings in Scotland against her husband, she was not residing, nor had ever resided, in Scotland, but was living in London. In this case the authorities principally relied upon for establishing the position, that a marriage celebrated in England cannot be dissolved by the sentence of a Scotch tribunal, that the contact remains for ever indissoluble, were Lolley's case,(p) and M*Carthy v. De Cuix.(9)
(l) Conwny v. Beazley, 3 Hagg. Eccl. 89; 2 Clark & Finn. 488; 2 Sław. & Mull 643, 644.
154. (m) Ferg. R. 296; ante, 757–765.
(0) 3 lagg. Eccl. Rep. 639. (n) 2 Russ. & M. 614; scc 9 Bli. N. S.
* Dr. Lushington said, only one distinction exists [ *779 ) between this case and that of Lolley, viz. here, the second marriage took place in Scotland ; in neither case is there any proof of collusion, in resorting to Scotland, and in neither case is there any domicile in Scotland; and as in my judgment the question of domicile might form a most important and distinguishing feature, the due effect of a Scoich domicile on the decision of these cases would demand a very careful consideration. That, however, does not arise in the present case. It has been urged, that this second marriage was to be decided solely with reference to the lex loci contractus; undoubtedly, questions of marriage are prima facie to be judged of by the law of the country where they are solemnized; but I am of opinion that before considering the second marriage, I must ascertain the capability of the parties to contract. If both the parties, being at the respective times of the first marriage and of the divorce, domiciled English subjects, were by the law of England prohibited by a personal incapacity, I must apply the rule of thai law.” The learned judge considered himself bound by authority; for, since it appeareu that neither of the parties to the first marriage were at any timne bona fide domiciled in Scotland, no sound distinction existed between the case and that of Lolley, and therefore the second marriage was pronounced null and void. (r) The learned judge added, " that his judgment must not be construed to go one step beyond the present case; nor in any manner to touch the case of a divorce a vinculo pronounced in Scoi. land between parties who, though married when domiciled in Eng. land, were at the time of such divorce bona fide domiciled in Scotland, still less between parties who were only on a casual visit in England at the time of their marriage, but were both then, and at the time of their divorce, bona fide domiciled in Scotland.(s) A case in which all the parties are domiciled in England, and resort is had to Scotland (with which neither of them have any connexion) for no other purpose than to obtain a divorce a vinculo, may possibly be decided on principles which would not allogether apply to a case differently circumstanced; where prior to the cause arising on account
*of which the divorce was sought, the parties had been [ *780]
bona fide domiciled in Scotland. Unless I am satisfied that every view of this question had been taken, the court cannot, from the case referred to, assume it to have been established as a universal rule that a marriage had in England cannot, under any possible circumstances, be dissolved by the decree of a foreign court.(t) Before I could give my assent to such a doctrine (not meaning to deny that it may be true,) I inust have a decision, after argument, upon such a case as I will now suppose, viz. a marriage in England -the parties resorting to a foreign country, becoming actually bona fide domiciled in that couniry, and then separated by scntence of divorce pronounced by the competent tribunal of that country. If a case of that description had occurred, and had received the decision of the twelve judges, or the other high authority to which allusion has been made, then, indeed, it might have set this important matter at rest; but I am not aware that that point has ever been distinctly raised, and I think I may say with certainty, that it never has received any express decision.(u)
(p) Anle, p. 771.
(8) Ibid. 653.
The effect of a divorce for adultery in Scotland is likely to be the subject of discussion in the common law courts, in an action brought by the wife who had obtained a divorce, and her second husband, against her former husband, for the costs of the proceedings in obtaining the divorce. In this case the wife of the plaintiff was several years ago duly married to the defendant, Smythe, according to the Scotch form. They resided for some time in Dumfries, but the defendant subsequenily deserted her and went to London, and formed a connexion with another woman, and his wife took proceedings against him in the Scotch courts to obtain a divorce, and which ended in a decree of the court absolving the wife from the marriage tie in consequence of adultery by the husband, declaring her free to marry again, as if she had never been married before, and ordered the defendant to pay the costs of the suit, amounting to 941., to the pursuer, the wife of the present plaintiff; and the action was brought by her present husband, in his and her name, to recover that amount. The *main question in the case was, whether the decree of a foreign court was a sufficient foundation for an action
[ *781] in England. The verdict was taken for the plaintiff, subject to the opinion of the court above, on a special case to be stated.(2)
Lord Brougham's proposed Alteration of the Law.]—Wiih the view of settling this conflict between the laws of the two countries, on a point involving so many important interests, Lord Brougham introduced a bill in the house of lords on the 3d of September, 1835,(y) by which it was proposed to provide (sect. 2) that no divorce shall be pronounced by the court of session in Scotland to dissolve any marriage not had in Scotland, unless the husband be a Scotchman, or unless his usual place of residence be in Scotland, or unless both the husband and the wife shall have lived in Scotland for twelve calendar months next preceding the commencement of the suit to be instituted in the court of session for such divorce.
By a subsequent clause it was proposed to provide, that all marriages had, or to be had, in Scotland, and valid according to the law of Scotland, and all divorces had, or to be had, in Scotland, and valid according to the law of Scotland, shall be deemed and taken to be valid marriages and valid divorces in other parts of the united king. dom, and in all the dominions thereunto belonging to all intents and purposes whatsoever.
1307. Lord Eldon introduced a bill on (1) Russell and Wife v. Smythe, Liverpool Scotch divorces, 24th June, 1831 ; Hans. assizes, 20th Aug. 1840.
Parl. Deb. vol. iv. p. 295. (y) Hans. Parl. Deb. 3d ser, vol. xxx. p. SEPTEMBER, 1841.--2Q
SECT. II. OF LEGITIMACY.
Presumption in favour of the Legitimacy of Children by the Law of Scotland.]-A lawful child, according to the law of Scotland is one born in wedlock or within a certain time after the dissolution of the marriage; or born of parents who at the conception were under no impediment to marry, and have since intermarried. The maxim is pater est quem nuptia demonstrant. This presumption of legitimacy from the birth of a child during marriage is so strong, that it cannot be defeated but by direct evidence that the mother's husband could
*not be the father of the child. Although the wife was [ *782 ]
engaged in an adulterous connection with a stranger, and lived apart from her husband, the presumption of legitimacy of the children prevails, because such facts do not infer an absolute impos: sibility that the mother's husband could be the father.(z)
The two principal grounds upon which this presumption may be defeated are the husband's absence from the wife and his impotency, because either of these exclude all possibility of the child being procreated by the husband. It has been adjudged by the law of Scotland that to fix bastardy on a child, the husband's absence must continue till within six lunar months of the birth.(a) Where a child was born within six months after a marriage subsisting at its birib, and an action was brought by the wife against a person not her husband, alleging that he was the father of the child, and concluding for aliment, the court appointed the husband to be called as a party, and further inquiry to be made as to his opportunities of access to his wife recently before the marriage.(6)
The law of Scotland has adopted ten months as the ultimum tempus gestationis, therefore a child born after the tenth month is accounted a bastard. (c) But in one case, the lapse of nine calendar months and twenty-nine days from the death of the husband of the child's mother, to the birth of the child, was held not sufficient per se to overturn the presumption of the child's legitimacy.(d)
The maxim, Pater est quem nuptiæ demonstrant being admitted in Scotland, it follows in all questions with regard to the status of children, that if the validity or existence of a marriage be uncertain, the legitimacy or illegitimacy of children must be equally so. Cases of disputed legitimacy are of frequent occurrence in Scotland, in consequence of the admission of irregular marriages. (e) *783]
Legitimation of Children by subsequent Marriage.]
There is an important distinction between the law of Scotland and that of England upon the point of legitimation by marriage, the former legitimating all the children of the parties born before
(z) Ersk. Inst. b. 1, lit. 6, s. 49; Rout. 42; Stewart v. M*Keand, Decis. 132, Aug. ledge v, Carruthers, 19th May, 1812, Fac. 6, 1774; Routledge v. Carruthers, May, 19, Coll. ; 4 Dow, 392.
1812; 4 Dow, 395; ante, p. 714, 730, (a) Ersk. Inst. b. 1, tit. 6, s. 50.
(d) Sandy v. Sandy, 2 Shaw. & D. 453. (b) Jobson, 8 Shaw & D. 343; 5 Shaw See Innes v. Innes, 13 Shaw, D. B. & M. & D. 715.
1050. (c) Bankton, b. 1, tit. 2, s. 3; Ersk. Inst. ke) Sce ante, pp. 91--107. b. 1, tit. 6, s. 50; Stairs, Inst. b. 3, tit. 3, s.
the marriage, the latter legitimating only those who were born after the marriage. (f) In M'Adam v. Walker,(g) the woman had cohabited with Mr. M Adam and borne him two daughters. In the presence of several of his servants, whom he had called into the room for the purpose of witnessing the transaction, he desired the woman to stand up and give him her hand; and she having done so, he said " This is my lawful wife and these my lawful children.” On the same day, without having been alone with the woman during the interval, he pui a period io his existence. The court held the children to be legitimate, on the ground that the father was not incompetent to enter into the contract of marriage.
It has been an established rule and principle of the law of Scotland for some centuries that, when a man and a woman are once lawfully married, all the children born of such parents, whether born before the public celebration or open declaration of such marriage, or after it, are equally to be esteemed their legitimate children. It is perhaps not very necessary to inquire minutely into the principles on which this rule of law has been established in Scotland, as it has also been in most of the countries of Europe.(h) It is generally stated in Scotch authorities to rest on a presumption or fiction, by which it is held that there was from the beginning of the intercourse of the parties, or at the time when the child was begotten, a consent to matrimonial union interposed, *notwithstanding that the contract was not formally completed or avowed to the world till a later period;
[ *784 ) and it has been thought to be recommended by these considerations of equity and expediency, that it tends to encourage the conversion of what is at first irregular and injurious to society, into the honourable relation of lawful matrimony, and that it prevents those unseemly disorders in families, which are produced, where the elder born children of the same parents are left under the stain of bastardy, and the younger enjoy the status of legitimacy.(i) Whatever may be the principle of this law, it is liable to some exceptions. If at the time when the child was begotten, one or both of the parties were so situated that they could not lawfully contract marriage, the presumption is excluded, and legitimation cannot take place. The presumption may be contradicted, and the operation of the law excluded by any thing which renders it impossible that the principle of it can be applied.(k)
In order that the intermarriage of the parents may render the child legitimate, it is essential that there should have been no impedi
(f) As to the origin of legitimation per the Mauritius. It is not admitted by the subsequens matrimonium, see Kerr v. Mur. law of England or of her other possessions lin, 2 Dunl. B. & M. 760.
in the West Indies, and North America, or (g) 1 Dow, P. C. 148.
by the law of Ireland. It prevails in the (h) Legitimation per subsequens matri. siates of Vermont, Maryland, Virginia, monium is admitted with different modifica. Georgia, Alabama, Mississippi, Louisiana, tions, not only by the law of Scotland, but in Kentucky, Missouri, Indiana, and Ohio, but France, Spain, Portugal, Germany, and most not in the other states of America.-1 Burge other countries in Europe. It prevails in on Foreign Law, 101. the Isle of Man, (Lex Scripta of the Isle of (i) Munro v. Munro, 16 Dunlop, Bell & Man, p. 70, 75,) Guernsey and Jersey, Low. Murray, 30. er Canada, Saint Lucia, Trinidad, Demerara, Berbice, the Cape of Good Hope, Ceylon, and