tained at the cost of all others. It must, however, be maintained at a very considerable cost, inasmuch as it practically facilitates and encourages the violation of other laws and of other rights, such as those of the parents (x). The professed policy of the English Statute (y) governing the marriage of English subjects in England is-however little practical effect it may have to uphold the bond of Marriage, and to deprive the contracting party who violates his native Law of all pecuniary emoluments, as the course which best reconciles the two objects of maintaining the sacredness of an obligation—the interest of which so seriously affects third parties—and of vindicating the majesty of the violated domestic Law.

CCCCXXXVII. It should, moreover, be stated that by far the greater number of jurists, civilians, and canonists on the continent, ancient and modern, are in accordance upon the point of considering personal incapacity as invalidating the marriage; while, on the other hand, the weight of this most valuable species of authority (z) is in favour of maintaining the principle

(x) Story, s. 51-68. Paul and John Voet appear to be almost the only jurists of eminence who confine the authority of the personal statute to the domicil of the party, and allow it no extra territorial operation.

(y) 4 Geo. IV. c. lxxvi. s. 23.

P. Voet, De Stat. s. 4, c. ii. p. 137 (ed. 1661).

J. Voet, ad Pand. 1. i. t. iv. s. 7. p. 40.

2 D.

Meier, however, maintains the doctrine of the English Law. p. 34.-"Nuptiarum enim celebratio, tanquam actus a nullo causâ alio pendens, loci in quo perficitur, legibus consentanea esse debet; quare si de facultate contrahentium atque de solemnitatibus observandis causa, quæritur, jurium in isto loco obtinentium rationem esse habendam existimamus.

(z) Story, s. 122, cites Sanchez De Matr. t. iii. Disp. 18, s. 10, n. 26, 28.

John Voet, ad Pand. 1. xxiii. t. ii. s. 4, &c. (which were relied on in the case of Scrimshire v. Scrimshire, cited above).

Paul Voet, de Stat. s. 9, c. ii. n. 9.

Bouhier, cout. de Bourg. c. xxvii. ss. 59–66.

Hertius, de collis. Oper. 1. iv. art. 10.

Merlin, Rep. Marriage, s. 1.

See, too, Pütter, Fremdenrecht, s. 39.

that the formalities are governed lege loci contractus (a). It follows, as a necessary consequence, from the fact that the preponderance of the authority of jurists is in favour of upholding the Personal Statute, at the expense of the validity of the Marriage, that the same authority should be adverse to the validity of marriages contracted, not only at variance with a Personal Statute, but also in fraudem legis domestica.

CCCCXXXVIII. It is important to observe, that-though the proposition locus regit actum be applicable to the formalities attending the celebration of a marriage,-the converse of this proposition is not necessarily true, viz. :-that if a marriage abroad be not celebrated according to the formalities legis loci, it is void.

The general practice of nations is to allow parties to choose which formalities they will adopt, those of their Domicil, or those legis loci contractús, and to hold the marriage valid if celebrated according to the formalities of either the one or the other.

The Court of Appeal at Dresden held that, where the parties observed the forms of their Domicil, the marriage, though celebrated abroad, was valid, the Domicil being the proper and permanent seat of the marriage (b).

Upon this point the opinion of Lord Stowell is very valuable as far as English marriages abroad are concerned. He says:"It is true, indeed, that English decisions have established the rule, that a foreign marriage, valid according to the law of "the place where celebrated, is good everywhere else; but they "have not è converso established that marriages of British sub"jects, not good according to the general law of the place where

(a) Story, s. 123.

Huberus, l. i. t. iii. ix.

Bouhier, cont. de Bourg. c xxviii. ss. 60, 61, 62.

P. Voet, de Stat. 9, c. ii.

J. Voet, ad Pand. 1. xxiii. t. ii. s. 4.

Pothier, Traité du Mariage, n. 263, in the passage cited above.

(b) Savigny, viii. s. 381 in fine, and note q. The rule locus regit actum, he says, is only facultative and optional, and not indispensably necessary. Dieses ist denn auch meist anerkannt worden."

"celebrated, are universally, and, under all possible circum"stances, to be regarded as invalid in England. It is, therefore,

certainly to be advised that the safest course is always to be "married according to the Law of the country; for then no question can be stirred: but if this cannot be done on "account of legal or religious difficulties, the Law of this "country does not say that its subjects shall not marry abroad. "And even in these cases where no difficulties of that insuper"able magnitude exist, yet, if a contrary practice had been "sanctioned by long acquiescence and acceptance of the one country that has silently permitted such marriages, and of the "other that has silently accepted them, the courts of this country, I presume, would not incline to shake their validity upon these large and general theories, encountered as they "are by numerous exceptions in the practice of nations." (c)

CCCCXXXIX. Lastly, upon this subject of the formalities being governed lege loci contractús, the opinion of Savigny (d) should be mentioned.

He is of opinion that the rule locus regit actum, is applicable to the forms of marriages; but still he thinks it a grave question, whether, when the Law of the Domicil requires an Ecclesiastical ceremony, and the lex loci contractús demands a proceeding before the Civil Magistrate only, a compliance with the latter Law would satisfy the Law of the Domicil: and he advises parties who have been so civilly united, to be ecclesiastically married afterwards at the place of their Domicil.

This proceeding, he says, must, according to the Common Law of Germany, validate retrospectively the marriage.

His advice is, of course, inapplicable, as he says, to the case of foreigners who, being previously married, become domiciled in the land which requires the religious ceremony.

(c) Lord Stowell, Ruding v. Smith, 2 Consist. 390.
(d) Savigny, viii, s. 380, v. 35.

CHAPTER XIX.

MARRIAGE-EFFECTS ON PROPERTY.

CCCCXL. (a) The maxim of the Roman Law, that the home of the husband becomes, immediately on marriage, the Domicil of the wife, was expressed in very forcible language. The woman, said that law, if she be absent, cannot be married by letter or by proxy, "deductione enim opus esse "in mariti non in uxoris domum, quasi in domicilium "matrimonii" (b).

It is well said by Savigny, that in this language is expressed not any peculiar characteristic of the positive Law of Rome, but a recognition of the relation which necessarily, and universally, springs from the general nature of the institution of Marriage. All States, accordingly, Christian and Heathen, appear to have founded their Marriage Laws upon this principle, as their basis-that the home of the husband is the Domicil of the wife.

CCCCXLI. It may be useful to state the various questions. of law which have been raised, and variously solved by various jurists, on the effect of Marriage upon the property of the wife.

CCCCXLII. These questions of law presuppose, however,

(a) Rocco, p. 294, b. 6, 7. Savigny, viii. s. 379.

Fœlix, 1. ii. t. i. c. ii. ss. 90, 91.

Story, c. vii. Marriages-Incidents to.

1 Burge, Comm. on For. and Col. Law, Pt. I. c. vii. Effect of marriage on the property of the husband and wife, and c. vi, s. 2.

Westlake, p. 352, &c.

(b) Dig. lib. xxiii. t. ii. 5.

a certain state of facts with respect to the Marriage, the Property, and the Domicil of the parties, which it is of importance to notice.

I. The Marriage has taken place either-
1 Without any express contract:

2 Or, with an express contract.

Secondly, as to the Property :

The property has been acquired,
1 Before the marriage:

2 Or, after the marriage. Thirdly, as to the Domicil:

1. It is either the same as it was when the marriage was contracted:

2. Or, it has been changed, and a new one acquired subsequently to the marriage.

CCCCXLIII. Upon one or other of these states of facts, the following questions of law have been raised :

1. Assuming that the marriage has taken place without express contract, is the law which governs the property of married persons a Real or a Personal Statute? in other words, is it the lex rei sita, or the lex domicilii of the husband?

2. Is the law founded on the doctrine of a tacit contract, between husband and wife? or, does it spring, proprio vigore, from the relations of Marriage?

3. Does this law affect property acquired after, as well as before, the marriage?

4. If, after the marriage, a new Domicil shall have been acquired in a State which has a law respecting the property of married persons other than, and different from, the law of the State which was the domicilium matrimonii-is the Law of the old or the new Domicil to govern the question?

5. If the Law of the new Domicil, does it govern both kinds of property-that acquired before and that acquired after the marriage?