principles of Law at all; it is a question as to the Law on which that particular class of privileges is founded. 2. The same may be predicated of certain privileges (t) belonging to ecclesiastical establishments, and the public treasury (which is, of course, the national treasury only), when creditors in a case of bankruptcy. This is a matter belonging exclusively to the Laws of Bankruptcy (u). 3. With respect to the restitution of minors: this has lost its primitive character of a restraint on the capacity of acting; and, with reference to the application of the Law of Domicil, is to be rather classed among the grounds of impugning a juridical act (~). 4. So with respect to the privilege which protects minors against all prescriptions under thirty years. This has no connection with a restraint on the capacity of acting; it does not fall under the principle of applying the Law of the Domicil, but under the rules which relate to prescription. CCCLXXXIX. Such are the only limitations which Savigny admits to the universal recognition of the Personal Law of the Domicil. The English and North Americans e converso admit the Personal Law of the Domicil only as an exception to the universal recognition of the lex loci actûs vel contractús (y). (t) Privilegien im Concurs. (y) Story, ss. 102, 103. CHAPTER XVIII. MARRIAGE. CCCXC. WE have now arrived at the Second Branch of the General Subject of this Work; namely, the Legal Relations arising from Family (a). The Legal Relations arising from Property affect the person through the medium of external circumstances, which are within the scope of individual option. The Rights and Duties incident to Family accrue to persons in great measure arbitrarily, and without their choice. CCCXCI. Under this title are to be considered :1. Marriage and Divorce. 2. Legitimacy. 3. Parental Authority. In this chapter it is proposed to consider the Principles and Rules of Comity respecting Marriage. CCCXCII. The Legal Relations arising from Marriage have, in all countries, been affected, not only by the principles of morality, which are universal, but by Religious and Political opinions, which are not universal; and, therefore, it would be natural to expect, on this subject, the intervention of many obstacles to the universal prevalence of those general rules which it is the great object of Comity, the handmaid of Civilisation, to effect. On the other hand, the great importance of mutually maintaining and acknowledg (a) Vide antè, p. 24. Lawrence, Comm. iii. p. 270; Mariage en pays étranger. Wharton, ch. iv. ing these Legal Relations has approached so nearly to a necessity as to counteract, to some extent, the tendency to a discordant practice, which religion or politics might create. CCCXCIII. These remarks apply with particular force to all questions connected with the validity of the Marriage Contract itself. The question as to the validity of this, as of inferior contracts, involves two considerations: 1. The external formalities, or the outward form of the Contract. 2. The capacity of the contractors. CCCXCIV. (1) With respect to the outward form (b): just considerations of the immense importance attaching to the validity of that Contract which is the foundation of the State and the nursery of the Commonwealth (c), have induced all civilised nations to recognise universally the principle locus regit actum. That the law of the place of celebration is binding as to the outward form is a recepta sententia of Private International Law. CCCXCV. (2) With respect to the capacity of the persons contracting the de facto marriage. (b) First among the Canonists on this subject is Sanchez, De Matrimonio, Lib. iii. Disp. 18, s. 10, n. 26-28. Among the numerous civilians of the seventeenth century (the cases usually referred to), the two Voets. P. Voet, De Statutis et eorum Concursu, s. 9, cl. ii. J. Voet, Ad Pandectas, 1. xxiii. t. ii. s. 4. For modern writers see Schauffer, S. Kap. ss. 99, 100, 101, 102, 103. Pütter, ss. 36-43. Wächter, s. 23. Archiv. für die Civ. Prax. 6, 25, 184-7. Savigny, R.R. viii. 337-357. Felix, Revue Etrangère, 1841, t. viii. p. 433, Des mariages contractés en pays étranger. Story, Conflict of Laws, ss. 80, 81, and ch. v. (c). It is the parent, not the child, of civil society. "Principium urbis et quasi seminarium reipublicæ."-Cic. De Off. i. 17. Lord Stowell in Dalrymple v. Dalrymple, 2 Consistory Reports, p. 63. Upon this important question there is a great and lamentable difference in the laws and judicial decisions of different States. CCCXCVI. The Courts in England (d) have decided that a marriage valid between parties according to the lex loci contractus is valid everywhere. Did they mean thereby merely to affirm what has been already said-namely, that the form and the rites of the contract were to be governed by the lex loci? or did they mean to affirm that—though one or both of the parties to the contract might be incapable, by the Laws of his or her Domicil, by reason of minority, the absence of paternal consent, or for any other reason not of the character already mentioned, as taking the case, on special grounds (e), out of the consideration of Comity-did they mean to affirm the validity of the marriage, even though the marriage has been contracted avowedly in fraudem legis domestica, by parties who have left their own country for the express purpose of evading its laws and returned directly afterwards to it? Is, nevertheless, the marriage, once duly contracted according to the forms of the country in which it is celebrated, for ever after binding in England? CCCXCVII. Certainly, ever since the decision of Lord Stowell in Dalrymple v. Dalrymple (ƒ); indeed, since the (d) There are four classes of English statutes on the subject of Marriage : 1. The General Marriage Statutes (26 Geo. II. c. 33; 4 Geo. IV. c. 76). 2. The Statutes regulating the Marriages of Dissenters, or those which enable persons to marry without the aid of any religious rite (6 & 7 Will. IV. c. 85; 19 and 20 Vict. c. 119). 3. The Statute declaring the invalidity of Marriages contracted within the prohibited degrees of affinity and consanguinity (5 & 6 Will. IV. c. 54). 4. The Statute affecting the Marriages of the Royal Family, or of the descendants of King George the Second (12 Geo. III. c. 11). (e) Vide antè, pp. 17, 18. (f) 2 Consistory Rep. 59 (A.D. 1811). earlier decision of the Judges Delegate, in Harford v. Morris (g), it has been the general opinion among lawyers in England and the United States of North America (h) that marriages contracted abroad by English domiciled subjects, like the Gretna Green or Scotch Marriages, for the purpose of evading the English Law, were valid in England, if valid lege loci contractus. In the year 1857, Mr. Vice-Chancellor Stuart and Mr. Justice Cresswell decided that a marriage celebrated during a temporary residence in Denmark between an English widower and the sister of his deceased wife, being null by the statute 5 & 6 William IV. c. 54, was not valid, although valid by the Law of Denmark, the lex loci contractús. This decision did not necessarily affect the general question of the validity of marriages duly contracted abroad; because the case of an incestuous marriage fell under the category of exceptional cases (i), in which Comity did not require the adoption of the Foreign Law. But incidentally, and in the course of the judgment, it was denied that even where the case was not of this exceptional character, the Courts of England had ever laid down the doctrine that marriages celebrated abroad in fraudem legis domestica were valid, because valid lege loci contractus. The validity of the Gretna Green or Scotch Marriages was said to afford no proof to the contrary, because the English statute, which it was certainly the object of the fugitives to evade, contained an express provision whereby Scotland was excluded from its operation; and Mr. Justice Cresswell said:-" I have, therefore, come to the conclusion that a marriage, con"tracted by the subjects of a country in which they are "domiciled, in another country, is not to be held valid, if, "by contracting it, the laws of their own country are "violated" (k). 66 (g) 2 Consistory Rep. 423 (A.D. 1776). (h) Story, ss. 123a-6. (i) Vide antè, p. 12. (k) Brook v. Brook, 3 Smale & Giffard's Reports, 481 (A.D. 1857). |