the British army or navy does not exchange his Scottish domicil for an English one; the British army and navy being Scotch and Irish no less than English.1 There is, however, the weighty opinion of Mr. Dicey to the contrary. He thinks, "in the cases to which the principle of exterritoriality applies, a British subject must be taken to be under the rule of the common law of England," and that a marriage between two persons both domiciled in Scotland, contracted per verba de præsenti on board a British man-of-war, with no minister present, would be probably invalid.2 Mr. Dicey finds this view confirmed in the doctrine of Blackstone, that British subjects settling in a newly-discovered country carry with them "so much of the English law as is applicable to their own situation, and the condition of an infant colony;" by the rules as to Anglo-Indian domicil; and by the language of 28 & 29 Vict. c. 63, § 3; 4 Geo. IV. c. 91; 12 & 13 Vict. c. 68, § 20. 4 But any such inference from the language of these Acts is very indirect. The rules as to Anglo-Indian domicil were really based on the view that service with the East India Company was practically equivalent to service under a foreign government. In words which Mr. Dicey himself quotes elsewhere "persons who had contracted obligations with such government (the government of the East India Company) for service abroad, could not reasonably be considered to have intended to retain their domicil here. They, in fact, became as much estranged from this country as if they had become servants of a foreign government."5 Such language would be quite inappropriate to the service of the state either in the forces or as a civilian. Blackstone in the passage cited is not contemplating any conflict of laws among the settlers. apart from this, there may be a presumption that a Scotsman, 1 Dalhousie v. M'Donall, 1840, 7 C. and F. 817; Brown v. Smith, 1852, 15 Beav. 444. See also in re Macreight, Paxton v. Macreight, 1885, 30 Ch. D. 165; Lauderdale Peerage, 1885, 10 App. Ca., at pp. 692, 738; and ex parte Cunningham, in re Mitchell, 1884, 13 Q.B.D. 418. 2 Domicil, p. 208. But, 3 Blackstone, i. 107, as to which see infra, "Colonial Marriages." 4 Domicil, p. 142. 5 Per Turner, L.J., in Jopp v. Wood, 1865, 4 De G. J. and S., at p. 623. See Wauchope v. W., 1877, 4 R. 945. being a member of such a new community, consents to abandon his own law, and to become subject to the law of the settlement, which would naturally be the law of England in a case where the majority of the settlers came from that country. A Scotsman in the British army or navy stands in a different position, and no such presumption arises. Validating Statutes.-Various Acts have confirmed the validity of foreign marriages already celebrated concerning which doubts may have existed. 4 Geo. IV. c. 91 declared marriages to be good which had been celebrated by a minister of the Church of England in British embassies or factories, and within the lines of a British army serving abroad by any person authorised by the commanding officer. 12 & 13 Vict. c. 68, § 20 confirms marriages abroad where one party was a British subject (a) by a minister according to the rites of the Church of England, or by a minister of the Church of Scotland; (b) in any form before a British consul, &c.; (c) on board a man-of-war on a foreign station in the presence of the commanding officer. 31 & 32 Vict. c. 61 removes doubts as to consular marriages in presence of consuls holding office merely ad interim. 42 & 43 Vict. c. 29 removes a doubt as to the validity of marriages on men-of-war by verba de præsenti. 54 & 55 Vict. c. 74, § 12, removes a doubt as to the effect of 53 & 54 Vict. c. 47 upon such marriages on a British ship. 55 & 56 Vict. c. 23, § 26, removes doubts as to consular marriages arising from defects in the authority of the consul or from the celebration being elsewhere than at the consulate. These Acts in no case validate marriages which, before the date of the Act, have been declared invalid by a Court of competent jurisdiction. And if one of the parties to one of these invalid marriages has, during the lifetime of the other, lawfully intermarried with any third person, the first marriage is not validated by any of the Acts from 1849 downwards. They do not affect the validity of any marriage solemnised beyond the seas otherwise than provided in the Acts, and do not extend to the marriage of any of the Royal Family.1 1 12 & 13 Vict. c. 68, §§ 20 and 21; 55 & 56 Vict. c. 23, § 26. [1: The following statutes validate marriages, as to which doubts existed, celebrated in particular places abroad 1 :— 4 Geo. IV. c. 67, St. Petersburg. 5 Geo. IV. c. 68, Newfoundland. 3 & 4 Will. IV. c. 45, Hamburg. 17 & 18 Vict. c. 88, Mexico. 21 & 22 Vict. c. 46, Moscow, Tahiti, and Ningpo. 22 & 23 Vict. c. 64, Lisbon. 27 & 28 Vict. c. 77, Ionian Islands, before 1864. 30 & 31 Vict. c. 2, Odessa. 30 & 31 Vict. c. 93, Morro Velho, Brazil. 31 & 32 Vict. c. 61, China and elsewhere. Where there is no lex loci, or it is impossible for the parties to avail themselves of the lex loci.—A marriage contracted abroad will be regarded as valid in the Scottish Courts if the evidence of matrimonial consent would have been sufficient had Scotland been the locus celebrationis, and if there was no lex loci of which the parties could have availed themselves. (a.) It may happen that the parties are living in an uncivilised country where it is impossible to obtain the services of a priest or minister of religion, although the country belongs to a state by the laws of which a religious ceremony is prescribed for marriage. In one case the facts were these A., a Christian, residing in a remote district of North America, married B., an Indian woman, according to the custom of the Chree tribe. In order to contract a marriage before a priest or a magistrate A. would have had to travel on foot and by canoes between three and four thousand miles. A. and B. cohabited for twenty-eight years, and A. introduced B. to Europeans as his wife. During B.'s lifetime A. contracted a Christian marriage with C. He had children by B., some of which were baptised as legitimate, but one was, with B.'s consent, baptised as illegitimate. After A.'s death it was held that his surviving child by B. was legitimate on the ground that A. had contracted a valid marriage with her per verba de præsenti.2 The Chrees admitted polygamy but it was held 1 And see 49 & 50 Vict. c. 3 in Appendix. This Act authorises English clergyman to receive certificate of banns in Scotland, and con firms previous marriages. 2 Connolly v. Woolrich, 1867, 11 Low. Can. Jur. 197, cited by Bishop Ed. 1891, i. 306. NO LEX LOCI AVAILABLE. 387 that evidence pointed to A.'s intention to contract a Christian marriage.1 In such circumstances marriage by declaration is regarded as valid even in the Courts of England on the principle above stated, and, a fortiori, it would be so held in Scotland where no ceremony is required. (b.) They may be in a country which makes no provision for marriage except according to a religious ceremonial which the parties are not able to adopt. E.g., in the Pontifical States there appears at one time to have been no provision for the marriage of Protestants. In an anonymous case, said to be that of Lord Cloncurry, the law was thus stated : "In the discussion of a late divorce bill in the House of Lords, Lord Eldon intimated a doubt respecting the validity of the marriage, which was celebrated at Rome by a Protestant clergyman, both parties being Protestants, and said that where persons were married abroad it was necessary to show that they were married according to the lex loci, or that they could not avail themselves of the lex loci, or that there was no lex loci. Some days after, a Roman Catholic clergyman was produced at the Bar of the House, who swore that at Rome two Protestants could not be married according to the lex loci; because no Catholic clergyman would celebrate marriage between two Protestants. The marriage was held to be good." In some parts of South America there is still no mode of marriage available for Protestants. It would appear that in such cases a marriage per verba de præsenti would be valid in England, and, a fortiori, in Scotland.* In Ruding v. Smith, Lord Stowell suggests that if, by the lex loci, persons could not marry without consents until an age greater than was required for that purpose by the law of their domicil, the want of such consents would not be recognised in this country as invalidating the marriage. E.g., parties domiciled in Scotland are married in Holland. The Dutch 1 Cf. re Bethell, 1888, 38 Ch. D. 220, where it was held such an intention was not proved. 2 Anonymous, in Cruise on Dignities, p. 276. 3 See Report on Foreign Marriages, App. 1899. Article by Sir H. W. 4 Ruding v. Smith, 1821, 2 Hagg. C.R. 371; Lautour v. Teesdale, 1816, 8 Taun. 830. law provides that persons under thirty must obtain certain consents. They are under that age and have not complied with this provision. It is probable that the marriage would be good in Scotland, if otherwise regularly celebrated. For, as Lord Stowell points out, the law in question was intended for the protection of Dutch parents and it would be strange indeed if Scots parents, whose consent is not required in Scotland, could claim that a marriage in Holland was invalid because their consent to it had not be obtained.1 Marriages in the Colonies. It was held in England, at an early date, that British settlers in an uninhabited or uncivilised country took out with them the common law of England or at least so much of that law as was suitable to their condition. "Such colonists carry with them only so much of the English law as is applicable to their own situation, and the condition of an infant colony, such, for instance, as the general rules of inheritance, and of protection from personal injuries." 2 This rule covers the forms of marriage which, in such a plantation, must conform to the requirements of the English law as it existed at the time the settlement was made. British statutes subsequently made do not, unless so expressed, extend to the colony, and the forms observed by the natives of the country are immaterial. A domiciled Scotsman, being one of the members of such a settlement of colonists, must, in order to contract a valid marriage, satisfy the requirements of the English and not the Scottish common law. In the Lauderdale Peerage Case the enquiry was as to the validity of the marriage of a domiciled Scotsman celebrated at New York in 1772. It was contended that the ceremony performed by a clergyman of the Church of England was invalid from the want of banns or license, and the argument does not seem to have 4 1 Ruding v. Smith, 1821, 2 Hagg. C.R., at p. 389. But see as to consents being regarded as part of the ceremony, Simonin v. Mallac, 2 S. and T. 67; Sottomayor v. De Barros, 3 P.D. 1, 5 P.D. 94. 2 Blackstone, i. 107. 3 Lautour v. Teesdale, 1816, 8 Taunt. 830; Caterall v. C., 1847, 4 41885, 10 App. Ca. 692. |