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(10) The Treaty with Portugal, August 26, 1840, Art. XII, p. 566, is the same as that with Russia, excluding the last clause of the Russian article, respecting emigration.
(11) The Treaty of Dec. 1, 1845, with the Two Sicilies, Art. VI, is limited to the disposition of the personal property and contains no clause as to the real. (United States Statutes, vol. IX, p. 836.)
A subsequent treaty of Oct. 1, 1855, Art. VII, is as follows: “As to any citizen or subject of the high contracting parties dying within the jurisdiction of the other, his heirs being citizens or subjects of the other shall succeed to his personal property and either to his real estate or to the proceeds thereof whether by testament or ab intestato ; and may take possession thereof, either by themselves or by others acting for them; and may dispose of the same at will, paying to the profit of the respective governments such dues only as the inhabitants of the country, wherein the said property is, shall be subject to pay in like cases.” (United States Statues at Large, vol. XI, p. 644.)
(12) The Treaty with New Granada, Dec. 12, 1846, Art. XII, declares: “The citizens of each of the contracting parties shall have power to dispose of their personal goods or real estate within the jurisdiction of the other, by sale, donation, testament or otherwise; and their representatives, being citizens of the other party, shall succeed to their said personal goods or real estate, whether by testament or ab intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country, wherein said goods are, shall be subject to pay in like cases.” (United States Statutes at Large, vol. IX, p. 886.)
Art. XXXV, sec. 2.—The present treaty shall remain in full force and vigor for the term of twenty years from the exchange of the ratifications; and from the same day the treaty that was concluded between the United States and Colombia, on the 3d of October, 1824, shall cease to have effect, notwithstanding what was disposed in the first part of the XXXIst Article. (Vide supra, p. 115.)
The Consular Convention of May 4th, 1850, makes provision in respect to consuls taking possession of the effects of persons dying, but makes no reference to real estate. (16. vol. X, p. 904.)
(13) The Treaty with the Swiss Confederation, May 18, 1847.Art. II is : “If, by the death of a person owning real property in the territory of one of the high contracting parties, such property should descend, either by the laws of the country, or by testamentary disposition, to a citizen of the other party, who on account of his being an alien, could not be permitted to retain the actual possession of such property, a term of not less than three years shall be allowed to him to dispose of such property, and collect and withdraw the proceeds thereof, without paying to the government any other charges than those which, in a similar case, would be paid by an inhabitant of the country in which such real property may be situated.” (United States Statutes at Large, vol. IX, p. 903.)
The article in the Convention of Nov. 25, 1850, is as follows: But in case real estate situated within the territories of one of the contracting parties should fall to a citizen of the other party, who, on account of his being an alien, could not be permitted to hold such property in the State, or in the canton in which it may be situated, there shall be accorded to the said heir, or other successor, such term as the laws of the State or canton will permit to sell such property; he shall be at liberty at all times to withdraw and export the proceeds thereof without difficulty, and without paying to the government any other charges than those which, in a similar case, would be paid by an inhabitant of the country in which the real estate may be situated.” (United States Statutes at Large, vol. XI, p. 590.)
(14) The Treaty with the Hawaiian Government, Dec. 20, 1849, Art. VIII, has the same clause as the Prussian treaty, except as regards emigration. (United States Statutes at Large, vol. IX, p. 979.)
(15) The Treaty with Guatemala, March 3, 1849, Art. XI, has the same clause as that in the convention with Colombia and other South American States. (United States Statutes at Large, vol. X, p. 878.)
(16) The Treaty with San Salvador, concluded Jan. 2, 1850, Art. XII, is the same as the treaty with New Granada, Art. XII. (United States Statutes at Large, vol. X, p. 893).
(17) The provision as to the succession and disposition of property in the treaty with Costa Rica, July 10, 1851, is confined to personal property. (United States Statutes at Large, vol. X, p. 918.)
(18) The Treaty with Peru, July 26, 1851, Art. XV, contains the following clause : "Should the property consist of real estate, and the heirs, on account of their character as aliens, be prevented from entering into possession of the inheritance, they shall be allowed the term of three years to dispose of the same and withdraw and export the proceeds, which they may do without paying any other dues or charges than those which are established by the laws of the country.” (United States Statutes at Large, vol. X, p. 933.)
(19) The Treaty with the Argentine Confederation, July 27, 1853, Art. IX, contains the following clause: “ In whatever relates to the police of the ports, the lading and unlading of ships, the safety of the merchandise, goods, and effects, and to the acquiring and disposing of property of every sort and denomination, either by sale, donation, exchange, testament, or in any other manner whatsoever, as also to the administration of justice, the citizens of the two contracting parties shall reciprocally enjoy the same privileges, liberties, and rights, as native citizens.” (United States Statutes at Large, vol. X, p. 1009.)
(20) The Treaty with Bolivia, May 13, 1858, Art. XII, provides : “And if, in the case of real estate, the said heirs would be prevented from entering into the possession of the inheritance on account of their character of aliens, there shall be granted to them the longest period allowed by the law to dispose of the same as they may think proper, and to withdraw the proceeds without molestation, nor any other charges than those which are imposed by the laws of the country. (United States Treaties, 1860–3, p. 298.)
(21) The Treaty with Nicaragua, June 21, 1867, United States Statutes at Large, vol. XV, p. 554, besides providing Art. VIII, in case of real estate falling to a citizen of the other party, who, on account of his being an alien, could not be permitted to hold such property, there shall be accorded “to the said heir or other successor,” such time as the laws of the State will permit to sell such property, stipulated by Article IX, that “the citizens of the United States residing in Nicaragua, or the citizens of Nicaragua residing in the United States, may intermarcy with the natives of the country, hold and possess by purchase, marriage, or descent, any estate, real or personal, without thereby changing their national character, subject to the laws which now exist or may be enacted in this respect.
(From the London Law Magazine, May, 1870.)
ART. V. - THE MARRIAGE LAWS OF VARIOUS
COUNTRIES, AS AFFECTING THE PROPERTY OF MARRIED WOMEN.*
BY THE HON. W. BEACH LAWRENCE.
MARRIAGE, according to Grotius and Blackstone, was always a matter juris gentium, and with the intercourse now existing between the different portions of the civilized world, and especially between the people of a common descent on the two sides of the Atlantic, every incident connected with it is of general interest. And no citi. zen of any country marrying abroad or coming to reside abroad after marriage can well know to what extent the laws of other countries on this subject may not be applicable to him.
Important, however, as the protection of the rights of property of married women is, the questions which concern her matrimonial status are of paramount consideration. Marriage, though a contract, is a contract sui generis, and among its peculiarities is that it is impossible by rescinding it, after it has been once consummated, to restore one of the parties to the condition which existed before the contract was entered into. The Common Law of Europe, and which is still the law of Scotland, by regarding every promise of marriage made between persons of the age of puberty, followed by consummation, as constituting an irrevocable contract, protected the feebler sex against the stronger, and was the ægis of woman's honor.
* The above is an authentic report of the speech made by Mr. Lawrence, in the discussion on the Married Women's Property Bill, at the Bristol Congress of the Social Science Association in October last. The speech has not been reported elsewhere. (Ed. Law. Mag.)
The decision rendered by your House of Lords in 1843, declaring the presence of a person ordained by a bishop to have been essential by the Common Law of England to the validity of a marriage, it is unnecessary to say, created the most profound amazement in the United States. As our law of marriage has no other basis than the law of England as it existed before the time of Lord Hardwicke's Act, if the interposition of a clergyman ordained by a bishop was necessary with you, it could not, in the absence of any statutory regulations, have been less obligatory with us.
It is unnecessary, however, to inquire as to the soundness of the decision in the Queen v. Millis, rendered by a divided vote of the House of Lords, and against which the eminent judge of the Ecclesiastical Court, Dr. Lushington, on the earliest occasion, so earnestly protested. Neither the necessity of the solemnization by a priest, as contended for by the English Common Law judges, nor the decree of the Council of Trent requiring the presence of the curate and two witnesses to the verification of a marriage between Catholics, impose any
additional restrictions on the parties in the contracting of marriage. On the contrary, the Council of Trent, whose professed object it was to establish a system which would prevent for the future scandals arising from the repudiation, by persons belonging to the Church, of clandestine marriages of which the proofs were wanting, refused to declare invalid marriages contracted without the ecclesiastical benediction. At the same time they anathematized all who should say that the marriage of children without the consent of their parents was null.
Constituted as human nature is, every restriction on marriage must operate to induce illicit connections, and such connections, as a general rule, must be based on a sacrifice of the middle and lower classes to the licentiousness of the higher. As it was well expressed by Sir James Mackintosh, the whole legislation of Europe on the subject of marriage has been a contest of patrimony against matrimony, though, viewed in this light, it is not a little extraordinary that the authors of the Code Napoleon, who had just proclaimed the equality of all citizens, should have referred as an authority for their articles on marriage to the edict of Henry II, of 1556, and to the ordinance of Louis XIII, which were professedly intended to prevent mésalliances. If the object of the Code had been to make lawful marriage an exceptional institution and concubinage the normal rule, no more effective enactments could well have been devised than the restrictions which it im