poses. The provisions of the Roman law as to parental authority are exaggerated, and while the criminal condemned to the "travaux forces" is deprived of all other civil rights, he retains an absolute veto over the marriage of his children to an age beyond that of legal majority for other purposes, and is entitled to "actes respectueux” from them at every age, the absence of which would expose the marriage to be nullified, and which in any event create unjustifiable delay.

The rule early introduced into Germany, which prohibited marriages of members of sovereign houses even with the higher nobility, extended, till modified by the improved legislation of the new confederacy, to all intermarriages between different classes of the community. The laws of many of the German States, more just than the French Code, seem to have contemplated the natural result of a system which imposed innumerable artificial impediments to marriage, and in the Codes of Prussia and Saxony the "Verlobniss" forms a separate chapter. Though such connections were terminable without legal proceedings, provision is made for the legitimacy of the children born under them, and in Prussia there is a complete Code respecting what the "Allgemeines Landrecht" terms marriages of the left hand.

In England legislation against mesalliances only goes back about a century. It dates from Lord Hardwicke's Act, as it was called, passed in 1753. For a long time previous, almost every year, bills to prevent clandestine marriages, that is to say, to protect the aristocracy against the improvident marriages of their prodigal heirs, passed the House of Lords but failed in the Commons. Lord Hardwicke's Act not only prohibited any suit before an Ecclesiastical Court to compel the celebration in facie ecclesiæ of a marriage contracted either per verba de presenti or per verba de futuro, but the rule as to the consent of parents, which the Canon Law had never required, was rigorously applied. Moreover, an omission of the minutest forms was utterly fatal. Unlike the French judges, who are vested with discretionary power in the case of the omission of the preliminary requirements of the Code to look at the motives, whether the object was clandestinity, or the omission of the formalities was accidental, the reports of the English Courts will show cases where marriages, which had lasted twenty-five years, and in one case nearly forty, were annulled after the birth of children, for omissions in the formalities prescribed for obtaining a license, though the license itself was perfectly regular, and no suggestion of clandestinity existed. In several cases the judges expressed their regret in being compelled to adjudicate according to the letter of

the law, nor was it till 1822 that Lord Hardwicke's Act received any modification. Many of the most stringent provisions of that law no longer exist, but under the Acts of 4 Geo. IV. c. 76 (1823), & 6 and 7 Will. IV. c. 85 (1836), which constitute the present marriage laws of England, though a marriage is not invalid because a license is issued under a wrong name, any mistake of name, however slight, renders void a marriage celebrated after the publication of banns.

It is said, in the report of the Royal Commission made last year, that in all these forms of English marriages, the marriage may be invalidated by a non-compliance with any of the requirements of the law. For instance, if the place where the marriage is celebrated is not properly consecrated or set apart, or if the marriage is effected in some other locality than where the banns have been called, or if any other error affecting time or place is made by the parties, that entirely invalidates the marriage, although, upon other grounds, there may be no objections whatever to it.

I will not dilate further on what may be deemed only matter introductory to the subject of the present discussion. Accustomed to the jurisprudence of a country where no formal ceremony, civil or religious, is requisite to constitute a valid marriage, and every intendment is made in favor of legitimacy, it is difficult for me to comprehend a system of legislation which, for the mere object, moreover usually ineffectual, of preventing improvident marriages of spendthrift heirs, would sacrifice female virtue to family pride. It was, indeed, with no little astonishment that I read the following remarks, made in a debate of the House of Commons during the last session of Parliament: "Suppose," it was said, "any gentleman in this House visited at a house in Scotland where a young lady happened to be staying and that he and the young lady took a walk together, and, in the course of the walk, he took a piece of paper out of his pocket, on which they wrote down a mutual promise to marry, though the piece of paper might be simply put back again into his pocket, and though nobody might be there at the time, and if the persons afterwards lived in a certain way together, that would be a valid marriage, although nobody might know of the fact of the marriage for years afterwards." It seems to me that, so far from this statement aiding the cause for which it was intended, it conclusively establishes the propriety of the Scotch law of marriage. I am very sure that there is no tribunal in my country that would not, under the facts as stated, pronounce the sentence of a valid marriage; nor is there a legislature in any State

of America which would enact such a system of marriage laws as would enable the parties, if they desired it, to escape from the relation thus contracted, whether or not it was evidenced either by a priest or civil officer.

Having alluded to the English law of marriage, I ought not to leave this branch of my subject without referring to the recommendations of the Royal Commission. Though, for the reasons incidentally suggested, I cannot but think that the rights of the weaker sex require the return, pure and simple, to the old common law, very much I believe would be gained by providing, as is proposed, that no marriage celebrated by a minister of religion duly authorized, or by a civil officer, shall be declared void, for a non-observance of the conditions prescribed for the prevention of clandestine, illegal marriages; and that the preliminary conditions relative to residence, consent of parents, declarations required from the parties, shall only be directory.

Where marriages take place in foreign countries, and especially between persons of different nationalities, important questions of international law present themselves, about which the jurisprudence of England and America is not in accordance with that of the continent. While all agree that the 'law of the place of celebration must be observed, the French and other countries, where the rule of the personal status prevails, subject their citizens to their own laws, when contracting marriage abroad. Frenchmen, who have not lost their nationality, have two conditions to perform: they must make the publications in their commune, and obtain the consent of their parents. Neither the English nor American laws pays any regard to these exterritorial requirements; and the consequence is, that cases exist where parties have been validly married in England or the United States, whose marriages are deemed null in their own country.

The impediments thrown in the way of marriages abroad have induced the passage of Acts of Parliament, authorizing marriages at embassies and consulates, the validity of which, as derogating from the sovereignty of the country where they are solemnized, is considered by the Royal Commission as doubtful.* It would seem that

* [The marriages at foreign legations were emphatically repudiated by Mr. Cass when Secretary of State, in an instruction of November 12, 1860. "It has been remarked," he says, that this power is a consequence of exterritoriality. But while this principle of exemption from the government of the country, where a

this is a matter which requires a conventional arrangement, and so far as the United States and England are respectively concerned, it naturally falls within the scope of legislation required by the arrangements recently entered into by them, in regard to naturalization and its incidents.

Though publicists are pretty generally agreed that it is the law of the husband's domicile or the matrimonial domicile, and not the law of the place of the celebration of the marriage, which, in the absence of any express contract, is to govern the respective rights of the parties, at least as to personal property, there is no general accordance between them as to the effect of a change of domicile after marriage.

In Story's time, it would appear that no case had arisen in the English courts upon the point, as to what rule ought to govern in cases of matrimonial property where there is no express nuptial contract, and there had been a change of domicile. He refers to a case (Sawer v. Shute, 1 Anstr. 63) where the Court of Chancery adopted the law of the actual domicile, though to the prejudice of the equitable provision which that tribunal was in the habit of making in favor of married women domiciled in England.

The actual domicile is the law of Louisiana now confirmed by statute, as to all property acquired after removal into the State. And Judge Redfield, the commentator of Story, contends for it as the suitable rule in all cases. He admits, however, that the Court of Appeals of New York, by a divided vote, had decided otherwise, holding that the rights of property between married persons continue to be governed, notwithstanding a change of domicile, by the law of the place where the marriage was celebrated, and which was also at the time the

foreign minister is accredited, protects his person and his domicile from all interruption, I do not consider that it necessarily carries with it the power to exercise any authority, civil or criminal. I do not consider that an obligation contracted at the residence of the Minister of the United States, at Paris, contrary to the laws of France, can become valid, when the parties are found in the United States. The utmost extent to which this principle of exterritoriality can properly be carried, cannot confer upon a foreign minister an authority not necessarily incident to his official functions, or which is not granted to him by some law of his own country." (Lawrence's Wheaton, p. 399, note 133.) Mr. Cass' instruction, as given above, is also inserted substantially in the spurious edition of Wheaton, by Dana, p. 303, note 128. See also, on this subject, Lawrence's Etude de droit international sur le mariage, pp. 82–83; Article in the American Law Review, January, 1860, vol. II, pp. 218, &c., by Merrill.]

place of the domicile of the husband. This is in accordance with the French rule.

There are two systems of law applicable, on the continent of Europe, to the rights of married persons, in neither of which is the individuality of the wife suppressed, as by the English Common Law, and though in many cases the husband exercises the administration during marriage, the wife's rights of property under one form or other are retained, and the law affords her protection against the improvidence of the husband.

On the continent, where the question of woman's right to property arises, it is necessary to decide between the dotal regime, which is sometimes purely Roman, and sometimes undergoes very extensive modifications, and the community of goods which is of German origin, and which also exists under various forms. Nowhere are these systems obligatory, except in the absence of express contracts, which in some countries may be made even after marriage. The right to such marriage contracts is entirely in accordance with the express terms of the law, and not, as in England and America, in apparent evasion of it.

By the Roman law, on which the modern dotal system is founded, the husband had the sole management of the dowry given by the father to a daughter on the occasion of her marriage, but, as a general rule, the husband's right to it ceased at the dissolution of the marriage, and it was restored to the wife or her family. Moreover, the constitution of a dowry was in no wise essential to the validity of the marriage, and all the property not comprehended in the dowry was paraphernal, of which the wife remained proprietor and over which the husband possessed no rights. By the French law there is the most entire liberty of arranging the interests of the parties by contract, subject only to the condition that it shall not interfere with the general policy of France, and particularly as respects the law of succession. No provision can be made favoring primogeniture or affecting the equality of descent among children. Not only may special stipulations be made, but the parties may in general declare whether they will marry under the law of community, the law of dowry (the general features of which, as they existed in the Roman law, we have described), or the law of separation of property, the Code providing the consequences to result from the adoption of any one of these systems.

Nor is it necessary to adopt one of them in its entirety, but they