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of the state where the litigation takes place, is now universally recognized. In harmony with this rule, foreign husbands, parents, and guardians are not permitted to exercise powers not granted to home husbands, parents, and guardians.1 § 268. Not merely because foreign restrictions on freedom will not be recognized, but because no effect will be given to foreign penal laws, it is now generally attainder and infamy agreed that neither a foreign attainder nor a foreign not extraconviction of an infamous offence, will be enforced. territorially Hence the prevalent opinion now is that even in states where a domestic conviction of an infamous offence destroys competency as a witness, no such effect flows from a foreign conviction of this class.2




Marriage not a mere contract


§ 271. Marriage, as is elsewhere fully shown, is not merely a contract, but is a cardinal international institution of civilization. Without marriage there can be no family, without families no state. So far, but an therefore, from the state having the power to modify marriage internationally, marriage, as an international institution, transcends the power of the state. Marriage, in this sense, is an exclusive sexual union for life. It must be exclusive; a polygamous union is no marriage. It must be sexual; if either party is impotent, there is no marriage. It must be for life; a sexual union for a term of years not constituting a marriage.

In this

country impediments reduced to inity by descent,


§ 272. The policy of this country is to encourage marriage and the growth of families; the policy of the old world is to discourage both. Nor is the restrictive policy of the old world in this respect of recent growth. The poverty of the people, as a body, was at least as great at the time when the canon law was moulded as it is now; and to this poverty, making early marriages generally inexpedient, may be in part traced the restrictions based on consanguinity and

I Whart. Conf. of Laws, § 1046. 2 Ibid. § 108.

and later

ally in one degree.

3 Whart. Conf. of Laws, § 126.

4 Ibid. §§ 126 et seq.

Laws requiring

affinity with which the canon law abounds. Nor is this the only reason why these restrictions should be regarded as merely temporary and local, and as not consistent with the policy of a country like the United States. They were subject to the dispensing power of the pope, and could thus be withdrawn at his discretion. The authority of the canon law in this respect, therefore, cannot bind us, since that law assumes the intervention of an ecclesiastical arbiter, who is incapable among us of exercising this jurisdiction. Hence the prevalent opinion in the United States is, that mere affinity is no impediment to marriage. Nor is consanguinity, unless lineal, or lateral in the first degree. Hence the only marriages generally prohibited are those between brother and sister, and between persons in the line of lineal descent.1 § 273. In most European states the consent of parents or guardians, in others the consent of the state, is necessary to the validity of a marriage. As to these laws the following observations are to be made: (1) They bind subjects of such state marrying within its borders. (2) They do not apply, such is the better opinion, to domiciled subjects of other states marrying in the state imposing the restriction. (3) Nor do they apply to domiciled subjects of the restraining state who marry in a country where no such restrictions are imposed. It is true that the last position is denied in France, it being there maintained that a French citizen cannot contract a valid marriage abroad without obtaining the consent of parents or guardians, as prescribed by the French code for French marriages. Restrictions, also, as to capacity and form are imposed by the council of Trent, and by the laws of particular states by which restrictions similar to those of the council of Trent are imposed. On the other hand, the common law brought to this country by its settlers, which in this respect was the canon law as it existed before the council of Trent, made the validity of marriages dependent neither on the consent of parents nor on any particular ecclesiastical

consent of parents or of state or church not extraterritorial.

1 Whart. Conf. of Laws, § 137. On the subject of capacity to marry, see

article in American Law Magazine for January, 1883.

approval. These and similar restrictions, therefore, will not be regarded in this country as affecting the validity of marriages solemnized among us, even though the parties are subjects of the state enacting the restriction; and the same may be said of local restrictions on the marriage of persons of different race, or of different religion, or of unequal rank, as well as on the marriage of ecclesiastics. Subjects of such states do not carry with them these restrictions when they travel in foreign lands.1

Divorced parties

domiciled prohibiting

in a state


second marriage

§ 274. When a divorce is granted on terms which prohibit the party divorced from a second marriage, it invalidates any second marriage in the divorcing state by the party so divorced. If such party, however, should become domiciled in a state which regards all divorces as absolute, this would bring with it the right of marrying again. Whether a mere residence without domicil, in a state regarding all divorces as absolute, would validate a marriage in such state by the party so divorced, is a question as to which there is great conflict of authority. The better opinion is that no change of residence not amounting to change of domicil can dispense with the restriction.2

bound by

such pro


Law of

275. It is generally agreed that the law of the place of celebration determines the mode of celebration; and, consequently, that a celebration lawful by such law is lawful everywhere, while a celebration unlawful

1 Whart. Conf. of Laws, §§ 147 et seq. As to how far the lex loci contractus in such matters controls, see infra, § 275.

2 See Whart. Con. of Laws, 2d ed., §135. The view of the text is not, however, accepted in New York, where a marriage in another state by a party prohibited by the New York law from marrying is held to be governed by the lex loci contractus, though such party continued domiciled in New York. Van Voorhis v. Brintnall, 86 N. Y. 18.

After a qualified divorce in New York for A.'s (the husband) adultery,

place of determines


he not being entitled by the law of New York to marry again, he went to New Jersey and there married C., a second wife, his first wife still living. In New Jersey, by statute, "all marriages, where either of the parties shall have a former husband or wife living at the time of the marriage, shall be invalid, and the issue thereof shall be illegitimate." A. and C. after their marriage took up their residence in New York. It was held in New York that their marriage was valid. Moore v. Hegeman, 92 N. Y. 521.


except when subjects of

are except

ed, or the

local rites

mode of ce- by such law is unlawful everywhere. The following qualifications, however, are to be kept in mind: (1) Such laws, as we have seen, do not, such is the other states better opinion, apply to the subjects of other states marrying in the state imposing them. (2) They do violate con- not apply where one at least of the parties being the subject of a foreign state, could not, without violation of a reasonable conscientious duty, perform the rite in the way prescribed. (3) They do not apply to travellers marrying in barbarous states. (4) They may not applythough this exception is open to grave doubt-when the parties go to a foreign state and are there married, with the intent to avoid the limitations of the home law.1

science or are barbarous.

Foreign divorces viewed with disfavor.


§ 278. Marriage being an international institution, essential to the welfare of society, and necessary to the existence of the commonwealth, the policy of the law is to view divorces with disfavor. At one time there were but few Christian countries which recognized the validity of divorces from the bond of matrimony (a vinculo matrimonii), though in all such countries divorces from bed and board (a mensa et thoro) have been always recognized as valid. Now, however, divorces from the bond of matrimony are granted in almost every jurisdiction in the United States and in Europe for adultery, and for desertion, and for intolerable cruelty. Nevertheless, such is the necessity of maintain

Whart. Conf. of Laws, §§ 169 et seq. For a statement of the different state laws as to marriage, see Mr. Evarts's letter to Mr. Van der Boosche, July 12, 1879, Diplom. Corr. 1879. In Van Voorhis v. Brintnoll, 86 N. Y. 18, it was held that the law of the place of celebration was everywhere decisive as to the validity of marriage. See, however, as to limitation, supra, § 274; article in American Law Review, March, 1883, 166; Brook v. Brook, 9 H. L. Ca. 193; Medway v. Needham, 16 Mass. 157; State v. Kennedy, 76 N.

C. 251, to the effect that the judex fori must follow his own law in cases of distinctive local policy. Cf. article in London Law Magazine for November, 1882.

That a consensual marriage abroad will be sustained in New York, there being no proof of a conflicting rule in the place of celebration, was held in Hynes v. McDermott, 82 N. Y. 41; see Stuckey v. Mathes, 24 Hun, 461.

As to Illinois, see Hebblethwaite v. Hepworth, 98 Ill. 126.

ing as far as possible the sanctity of marriage, the tendency is to view foreign divorces with disfavor, and to throw upon the party setting up a divorce the burden of proving not only the jurisdiction of the court granting the divorce, but the regularity of the proceedings.1

Domicil of


essential to

give juris

§ 279. To give jurisdiction over divorce proceedings, it is essential, according to the prevalent opinion in the United States, that the petitioner, at least, should be domiciled within the jurisdiction of the court. When the husband is the petitioner and is domiciled diction. within the jurisdiction there is in this respect no difficulty.2 The only question is, whether for divorce purposes, the wife can acquire a domicil separate from her husband; and this question is now settled in most states in the affirmative. If the wife's domicil, for divorce purposes, is necessarily that of her husband, then he might add to the injustice of deserting her the injustice of domiciling himself in a state in which, from its distance, or from some peculiarity in its laws, she could have no remedy for such desertion. A husband, also, might force by his misconduct his wife to take refuge in another state; and it would be a hard thing if this expulsion from his domicil should preclude her from being able to test the question of her further subjection to his will. If divorces are in any cases justifiable, they are justifiable in such cases as these; yet, to enable them to be decreed in such cases as these, it is necessary that the wife should be entitled, for divorce purposes, to acquire an independent domicil.-It should be added, that in Pennsylvania it is held that to enable a divorce for desertion to be valid, it must be granted in the state in which the parties had their common domicil at the time the desertion began.

I Whart. Conf. of Laws, §§ 204 et seq.; see Mellen v. Mellen, 10 Abb. N. C. 329; People v. Baker, 76 N. Y. 78; Bradford v. Abend, 89 Ill. 78; State v. Armington, 25 Minn. 29; Grant v. Grant, 12 S. C. 29.

2 As to domicil, see supra, § 252.
3 Whart. Conf. of Laws, 223 et seg.

See generally, Strait v. Strait, 3 Mac
Arth. 415; Loud v. Loud, 129 Mass. 14:
Collins v. Collins, 80 N. Y. 1; Van
Fossen v. State, 37 Oh. St. 317; Pate
v. Pate, 6 Mo. Ap. 49; Lochnane v.
Lochnane, 78 Ky. 467; D'Auvilliers v.
Her Husband, 32 La. An. 605; Elliott
v. Wohlfrom, 55 Cal. 384.

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