or from non-conformity to the ceremonies of the Jewish religion:" and it was alleged "that the ceremony in this case was not attested by competent witnesses according to these rules." It appeared to the court that the fact of marriage must be attested according to the Jewish law, and that the attestation is a constituent part of the validity of the ceremony, and that it was essentially necessary that both the witnesses should be competent, inasmuch as the clearest proof of the actual ceremony would be insufficient, unless it was performed in the presence of such two attesting witnesses of perfect competency. One of the witnesses before whom the ceremony was performed, having been shown to have been incompetent, not merely to attest, but to supply a constituent part of the ceremony, by violating the rites and ordinances of the Jewish religion and profaning the Sabbath, by riding in coaches and snuffed lighted candles, stirring the fire, and eating forbidden meats, the validity of the marriage was pronounced against.(y) Mode of Contracting Marriage between Jews.]-There seems to exist among the Jews, as in many other communities and societies, a distinction between marriages solemn and unsolemn; that there are marriages which have certain solemnities attached to them, for the purposes of public notification, and for the complete satisfaction of the civil and ecclesiastical law, though not necessary for the purpose of validity. The solemn marriage appears to be effected by a formal contract in the Hebrew language entered into by the bridegroom with the bride, according to the formalities and rules of the congregation; and such contract must be drawn up by the priest, and be signed by the bridegroom; be entered and registered in a certain book kept for that purpose by the priest, and the entry must be signed by the bridegroom and two other witnesses, which being done, the original con tract is delivered to the bride.(z) *The first cause in which the validity of a Jewish mar[ *70 ] riage was put distinctly in issue in an ecclesiastical court, was that of Lindo v. Belisario,(a) which came before that court by the direction of the Lord Chancellor. It appeared by instruments, which were annexed to each of the allegations given in, that the proceedings in the consistory court were commenced in pursuance of an order made by the Lord Chancellor, that Abraham de Mattos Mocatta should institute a suit in the consistory court of the Bishop of London in behalf of Esther Lindo, to whom he was guardian, to try the validity of the marriage said to have taken place between her and Aaron Mendez Belisario. It further pleaded, that this order was obtained by the petition of the executors of the wills of the father and the mother of the said Esther, and the trustees of a sum of money under her father's will, amounting to about 4000/.; that by the will of her mother, the interest of certain moneys was to be applied to her use, until she attained the age of twenty-one or day of marriage, provided she married with the consent of the major part of her mother's executors; but in case she married without such consent, then the money was to go to her issue, and in default of such issue, to be (y) Goldsmid v. Bromer, 1 Hagg. Cɔns. R. 324-336. (z) Lindo v. Belisario, 1 Hagg. Cons. R. 225. (a) 1 Hagg. Cons. R. Appendix, 10. divided among the other daughters of the executrix. It was further stated, that Aaron Mendez Belisario was a person in low circumstances, and that it was a very improvident match, but that he insisted she was, in point of fact, his wife, and was married to him on the 26th of July, 1793, and threatened to institute proceedings at law to get possession of her person and property. Under these circumstances it became necessary, before the Court of Chancery could stir in the business so as to make any order, to know whether there had been a marriage, and whether the young woman, by whose guardian the suit was instituted, was a wife or not. The question was, whether the ceremony which had passed between the parties constituted a complete marriage, or whether it amounted only to a betrothment. The ceremony was stated to have been as follows: viz. "that before sunset, and between 11 and 12 o'clock in the morning of Friday, the 26th day of July, 1793, Esther Mendez *Belisario, then Lindo, [ *71 ] thereby meaning Esther Lindo, spinster, the minor in this cause, went to and met Aaron Mendez Belisario, the other party in this cause, at the house of his brother, Jacob Mendez Belisario, in Little Bennett-street, for the performance of their marriage, and Abraham Jacobs and Lyon Cohen, two credible persons of the Jewish nation, attended at the said house, to be present at the ceremony thereof; that the said Aaron Mendez Belisario, then in the presence of the said Abraham Jacobs and Lyon Cohen, addressed himself to the said Esther Mendez Belisario, then Lindo, thereby meaning the said Esther Lindo, spinster, the minor aforesaid, in the words or to the following effect: Do you know, that by taking this ring, (meaning a ring which he then produced to her,) you become my wife?" to which she answered, 'I do.' That he then said to her, Do you take this ring freely, voluntarily, and without force?' to which she answered, 'I do;' or they, the said Aaron Mendez Belisario and Esther Mendez Belisario, then expressed themselves in words to that very effect; and the said Aaron Mendez Belisario immediately thereupon, in the presence of the persons aforesaid, delivered to and placed upon the forefinger of the left hand of the said Esther Mendez Belisario, which she tendered to him for that purpose, and freely and voluntarily received and accepted the same ring, and at the same time repeated to her certain words in the Hebrew language." The general result of the evidence was, that there had been what the professors of the Jewish law called a complete Kedushim between the parties, which Kedu. shim would, in order to dissolve it, and in order to give the woman a power to marry again, need a divorce; but it did not of itself create a perfect marriage, because it did not give the husband the rights of marriage; for they all agreed, without any contradiction whatever, that after the Kedushim was given, the wife retained her rights, she had a power over her own property as much as before, and the husband had no power over it at all. Lord Stowell decided that Mr. Belisario had not proved his case, and that Esther Lindo was not be considered as his wife ; (b) *and his decision was affirmed on [ *72 ] appeal by the Court of Arches.(c) 6 (b) Lindo v. Belisario, 1 Hagg. Cons. R. 216-261. (c) Lindo v. Belisario, 1 Hagg. Cons. R. Appendix, 7-24. But if Jews conform in the solemnization of marriage to the Christian form, they will be bound by it, and the validity of the marriage will be decided with reference to the marriage acts. On this ground the marriage by license of a minor Jewess, without the knowledge and consent of her father, was declared null and void.(d) Legal Redress for Violation of Matrimonial Duty.]-All persons who stand in the relation of husband and wife in any way the law allows, or by a domestic marriage not contrary to law, have a claim to relief on the violation of any matrimonial duty. The marriages of Jews are expressly protected by the marriage acts, (e) and they have the same mode of securing the legitimacy of their children, and the same rights of divorce belong to them, as to persons of a different persuasion.(f) In Andreas v. Andreas, (g) the parties were both Jews and were married according to the forms of the Jewish nation; the wife cited the husband to answer to her in a cause of restitution of conjugal rights. On admission of the libel it was objected, that as they had been married according to the forms of the Jewish nation, and not of the church of England, the court could take no notice of such marriage, and she could not institute such a cause against her husband in the ecclesiastical court. The court however, was of opinion, that as the parties had contracted such a marriage as would bind them according to the Jewish forms, the woman was entitled to a remedy, and that the proceeding would well lie, and admitted the libel. On the admission of a libel, pleading "a marriage between Jewsaccording to the rites of the Jewish religion," it was objected, that persons coming before the ecclesiastical court to claim any right by marriage, under that jurisdiction, must show the marriage to have been agreeably to the rites and ceremonies of the church Christian. ୮ *73 ] Sir William Wynne said, "The objection taken is, as far as I know, perfectly novel; I do not recollect any case which I can name, in which a Jewish marriage has been pleaded; and I take it there has been no case in which a Jew has been called upon to prove his marriage. If there had, I conceive that the mode of proof must have been conformable to the Jewish rites; particularly since the marriage act, which lays down the law of the country as to marriages by banns or license, for all marriages had according to the rites of the church of England, and with an exception for Jews and Quakers. This is a strong recognition of the validity of such marriages. As to dissenters there is no such exception, and no one would trust to the rules of their particular dissenting congregation for the validity of marriage. The comparison therefore, between Jews and dissenters does not hold, and more particularly in this, that the Jews are antichristian, the dissenters Christian." The allegation was therefore admitted.(h) It seems that to prove a Jewish marriage it is not necessary to pro (d) Jones v. Robinson, 2 Phill. R. 285. s. 31. (f) D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. R. Supplement, 773. (g) Cons. Nov. 24, 1737; 1 Hagg. Cons. R. Appendix, 9, n. (h) Vigevena v. Alvarez, 1 Hagg. Cons. R. Appendix, 7. duce witnesses who were present at the ceremony in the synagogue, but that the written contract between the parties should be produced, and the execution of it proved.(?) SECT. 5.-OF MARRIAGES IN AMBASSADORS' CHAPELS. THE general rule is, that mere domicil renders a person subject to the ordinary law of the country. Lord Mansfield laid down this general proposition, that the law and legislative government of every dominion equally affect all persons and all property within the limits thereof, and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, Minorca, the Isle of Man, or the plantations, has no privileges distinct from the natives.(a) The same doctrine had been previously promulgated by [ *74 ] *Huber.(b) "Pro subjectis imperio habendi sunt omnes qui intra terminos ejusdem reperiuntur, sive in perpetuum, sive ad tempus ibi commorantur." This general proposition, however, is subject to some exceptions. Thus ambassadors and public ministers are not subject to the whole body of the municipal law of the country where they reside. They belong for the most part to the country which they represent. So also the Jews, though native subjects under the protection of the general law of this country, are governed by their own institutions with respect to marriages. In some establishments existing by authority under treaties or under toleration, as in the English factories at Lisbon, Leghorn, Oporto, Cadiz; and in the factories in the East, Smyrna, Aleppo, and others, marriages are regulated by the law of the original country to which they are considered to belong. An English 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.(c) The house and chapel of an ambassador may be considered as excepted from the marriage act, on the ground that they are part of the country to which the ambassador belongs. There is a jus gentium with respect to marriage-a comity which treats with tenderness, or at least with toleration, the opinions and usages of a distinct people in the transaction of marriage. Thus practice, which is entitled to great respect when received, has sanctioned the marriages of foreign subjects in the houses of ambassadors of the foreign country to which they belong. Lord Stowell observed, that he was not aware of any judicial recognition upon the point; but the reputation which the validity of such marriages hhs acquired, makes such a recognition by no means improbable, if such a question was brought to judgment.(d) Lord Ellenborough said, marriages of (i) Horn v. Noel, 1 Camp. 61. (a) Hall v. Campbell, Cowp. 208. (b) De Conflict. Leg. lib. 1, t. 3, s. 2. (c) Ruding v. Smith, 2 Hagg. Cons. R. 385, 386. A register of English marriages celebrated at St. Petersburgh is transmitted to the registry of the Consistory court of London, ib. n. (d) Ruding v. Smith, 2 Hagg. Cons. R. See Pertreis v. Tondear, I ib. 136. 386. English subjects abroad in the chapels of our ambassadors, if made by the allowance of the foreign state in such [ *75 #75 ] places, would be good marriages in those countries. But if not a good marriage in the place where it is celebrated, it cannot be a good marriage any where.(e) In Lacy v. Dickenson, (f) the parties who were both English subjects, who had resided at Amsterdam, went to Paris, and were married by leave of the Dutch ambassador, in his hotel, and by his chaplain, in the absence of the English ambassador. They came afterwards to England, and the wife brought a suit of jactitation in which Mr. Dickenson justified under the marriage as alleged. In reply the wife pleaded the laws of Holland, "that marriages solemnized between the subjects of their high mightinesses, or others, in a house of an ambassador of the states general in foreign countries, between the subjects of the states general, or others, unless the parties had been first contracted by the law of Holland, and such contract duly registered, and unless banns be duly published in Holland, before the performance of the same, is null and void to all intents and purposes." It pleaded also, "that by the laws of France, a marriage solemnized, not in facie ecclesiæ, and on publication of banns, and by the priest of the church of the parish where the parties live, and where they are domiciled, unless by special license and faculty, is null and void." That cause went no farther, owing to the death of the husband. Assuming however, that such a privilege does exist in ambassadors' chapels, it cannot protect a marriage, where neither party is of the country of the ambassador in whose chapel the marriage was had, nor where one of the parties to the marriage having acquired a matrimonial domicil in this country, has not during the residence in England, lived in a house entitled to the privilege. Thus a libel for nullity of marriage was admitted where the marriage had been celebrated in the chapel of the Bavarian ambassador (in which banns were not usually published,) without banns or license between parties, one of whom was in the suite of the Spanish ambassador, and not of the Bavarian, and the other, though she had the name of a foreigner, was not domiciled in any *ambassador's family, and had *76 ] acquired a matrimonial domicil in England by more than a month's residence there.(g) [ *76 In Heinel v. Fierville(h) the court pronounced a marriage solemnized in the Venetian ambassador's chapel invalid, on the ground that it had been celebrated in a place where banns had not usually been published. Marriages solemnized abroad by Ministers of the Church of England made valid.]-The statute 4 Geo. 4, c. 91-after reciting that it was expedient to relieve the minds of all his majesty's subjects from any doubt concerning the validity of marriages solemnized by a minister of the church of England in the chapel or house of any British ambassador or minister residing within the country to the court of which he is accredited, or in the chapel belonging to any British factory (e) Rex v. Brampton, 10 East, 286. (f) Cons. R. 1769, cited 2 Hagg. R. 386, (g) Pertreis v. Tondear, 1 Hagg. Cons. R. 136. n. (h) Cons. 1783, cited 1 Hagg. Cons. R. 137. |