been submitted that, where the domicil was Scottish, interchange of consent, per verba de præsenti, would have been sufficient.1

Mr. Dicey thinks the rule that British settlers carry with them English common law is in favour of the view that Scots law has no application to the forms of marriage in cases to which the principle of exterritoriality applies.2 But the position of a Scotsman in a new colony differs, toto cœlo, from that which he occupies in a British army, on board a British ship, or as a member of a British community in an Oriental country possessing the privilege of exterritoriality. As a settler he goes out animo manendi, and may naturally be presumed to consent to become subject to the law of the colony, a presumption not excluded by the fact that from being in the army (as in the Lauderdale case) or other causes his Scottish domicil may not be lost. In the other cases there is no similar presumption.3

Colonial Marriages Validity Act, 1865.-The Act 28 & 29 Vict. c. 64 provides that laws made and to be made by the colonial legislatures for the purpose of establishing the validity of any marriage contracted within the colony, shall have the same force in all parts of the British Empire as in the colony where they are passed, provided that no marriage shall be thereby made valid unless at the time of the marriage both of the parties thereto were, according to the law of England, competent to contract the same. The validity or non-validity of marriages with a deceased wife's sister, when the parties are domiciled in a colony where such unions are legal, is therefore unaffected by this statute.1

Many of the colonial legislatures have passed Acts prescribing the forms of marriage to be observed in their respective jurisdictions.5

Marriages in India.-By the law prior to 14 & 15 Vict. c. 40, and the Indian Act of 1852 (Act 5 of 1852), a marriage between British subjects was valid if made per verba de præsenti, though without a minister. These statutes

1 See ibid., at p. 733.

2 Domicil, p. 208.

3 See supra, pp. 381, 384.

6

5 For a Collection of these Acts

see Hammick on Marriage, App. xiii.

6 Maclean v. Cristall, 7 N. of C.,

4 See opinion of Lord Cairns, infra, Supp. xvii. at p. 393.

provided for the appointment of marriage registrars in India.

The validity of marriages celebrated since 1872 in India between European British subjects now depends on compliance with the Indian Marriage Act, 1872 (Act 15 of 1872). They are good if celebrated :

1. By any minister episcopally ordained, or any clergyman of the Church of Scotland according to the rites of the Church to which he belongs.

2. By any minister who, under the provisions of the Act, has obtained a license to solemnise marriages.

3. By, or in the presence of, a marriage registrar under the provisions of 14 & 15 Vict. c. 40 (or Act 5 of 1852).

Exceptions to the Rule that a Marriage good where celebrated is good everywhere. The general rule is that a marriage valid by the law of the place where it is celebrated is valid all the world over.1 But to this rule there are certain well-recognised exceptions.

No country will admit the validity of a marriage which it regards as incestuous, and every country has a right to prohibit certain marriages to which one of its subjects may be a party, and to declare that it will not recognise such a marriage wherever celebrated, and whether it be lawful or unlawful in the view of any foreign country.

Moreover, a monogamous country will not regard as marriage a union entered into in a polygamous country, unless it be shown that the intention of parties was to contract a Christian marriage. In briefly discussing these exceptions, I shall commence with the last as being the most simple.

Marriage in Polygamous Country.-This is not in the view of our law marriage, if the husband could lawfully take a second wife during the lifetime of the first, although in fact he has not done so. "Marriage is one and the same thing substantially all the Christian world over. Our whole law of marriage assumes this; and it is important to observe that per Lord Stowell in Herbert v. H., 1819, 2 Hagg. C.R., at p. 271, and the exposition of the law by Lord Brougham in Warrender v. W., 1835, 2 C. and F., at p. 530.

1 See

2 Hyde v. H., 1866, L.R. 1 P. and D. 130; in re Bethell, 1888, 38 Ch. D. 220; and see re Ullee, 1886, 53 L.T. N.S. 711, aff. 54 L.T. N.S. 286.

POLYGAMOUS OR INCESTUOUS MARRIAGES.

391

we regard it as a wholly different thing, a different status, from Turkish or other marriages among infidel nations."1

But on proof that a marriage is not polygamous, which is contracted according to the lex loci in a non-Christian country, it will be recognised by our Courts as valid. And it would seem that if there is sufficient evidence that the parties being in a polygamous country intended to contract a monogamous marriage, and took the best means in their power of declaring their consent to a Christian marriage, the marriage would be valid in this country.3

Marriage in a Country where Concubinage is sanctioned by Law. In some countries, and among some more or less barbarous tribes, only one "chief wife" is allowed, but in addition to her the man is allowed to take concubines or lesser wives. The principal wife, therefore, contracts a marriage on the footing that the husband is not debarred from associating other women with her in this way, and that in so doing he will not be committing a breach of duty towards her, or guilty of any matrimonial offence for which she would be entitled to legal redress. It is pretty certain that a marriage on these terms would not be regarded by our Courts as a "Christian marriage," though in strict language it might not be called polygamous.4

Incestuous Marriages. Marriage with Deceased Wife's Sister. A marriage, which in the view of Scottish law is incestuous, is invalid if one of the parties be domiciled in Scotland, although celebrated in a country by the law of which the parties are not within the forbidden degrees." As regards the succession to heritage which is governed by the lex rei sitae, the issue of a marriage to which the parties were within the forbidden degrees in Scotland would not be entitled to take, although the domicil of the parents at the

marriage was in a country where it was legal. But from the opinions in Brook v. Brook it appears plain that the marriagee.g., of a Dane with his deceased wife's sister celebrated in Denmark where both were domiciled, would be regarded as a good marriage for every other purpose in Scotland if the parties afterwards came to reside in this country.

It may of course be argued that no tolerance can be extended to such unions, although contracted by persons owing no obedience to our laws, and in no way bound to respect our theories as to the propriety of the marriage of persons connected in this way. But in Brook v. Brook Lord Campbell said: "Sir Fitzroy Kelly argued that we could not hold this marriage to be invalid without being prepared to nullify the marriages of Danish subjects who contracted such a marriage in Denmark, while domiciled in their native country, if they should come to reside in England. But on the principles which I have laid down, such marriages if examined would be held valid in all English Courts, as they are according to the law of the country in which the parties were domiciled when the marriages were celebrated."3 And when the question next arises, the fact that the validity of such marriages has been declared by statute in several of our colonies, and that these Acts have received the royal assent, would seem to make it impossible to carry the argument to this length.1

Story distinguishes between marriages incestuous by the law of nature, and such as are incestuous by the positive code or customary law of a state, and there is American authority for this. It was observed "if a foreign state allows of marriages incestuous by the law of nature, as between parent and child, such marriage would not be allowed to have any validity here. But marriages not naturally unlawful, but prohibited by the law of one

state and not of another, if

thinks children of a marriage with a deceased wife's sister, whatever the domicil of the parents, will be illegitimate in Scotland with reference to moveable no less than to real estate. Parent and Child, p. See infra, Legitimacy.

56.

MARRIAGE WITH PARAMOUR.

393

celebrated where they are not prohibited, would be holden valid in a state where they are not allowed."1

It is not very clear what test is to be used in distinguishing what the law of nature regards as incest, but if inductive reasoning is permissible, it is plain that no civilised country now allows marriages between ascendants and descendants in the direct line, or between brothers and sisters. Marriage between uncle and niece is permitted in Roman Catholic countries if a papal dispensation has been obtained, and there seems no logical ground for refusing to recognise the validity of such a marriage when not prohibited by the law of the domicil, and valid at the place of celebration.2

Lord Cairns, speaking not as a judge but as a legislator, expressed the following important opinion with regard to the validity in England of a marriage with a deceased wife's sister in the Colonies:-"My view of the law upon the point is this that if a man, being domiciled in a colony in which it is lawful to marry a deceased wife's sister, does marry his deceased wife's sister, his marriage with her is good all the world over; whereas, if the man is a domiciled Englishman, not domiciled in the colony, but merely resident there, his marriage with his deceased wife's sister in such circumstances is bad everywhere, because he carries the impediment of his domicil to such a marriage with him." 8

Marriage of Guilty Spouse with Paramour named in Decree of Divorce. The Act 1600, c. 20, declares all marriages null "contractit heireftir be ony persones divorceit for thair awin cryme and fact of adulterie frome thair lauchfull spouses with quhome they ar declarit, be sentence of the ordinar judge to have committit the said cryme and fact of adulterie."

It is at present not finally decided whether the parties might

1 Greenwood v. Curtis, 6 Mass. 37 (I have not access to this report, and cite from Story, 8th Ed., p. 195).

2 A dictum of L. Brougham, in Warrender v. W., 2 S. and M'L., at p. 200, is sometimes cited as adverse to this view, but L. Brougham is

probably to be taken as referring to

a case where the marriage is void by the lex domicilii, but valid by the lex loci contractus.

3 Hansard's Parl. Debates, 11th June, 1883 (Vol. cclxxx. p. 158). I am indebted for the quotation to Mr. Foote, Priv. Int. Jur., p. 80.