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author of the Treatise on the Domestic Relations,a that the marriage, if made according to the common law, without observing any of those statute regulations, would still be a valid marriage. This I should inter, from the case of Wyckoff v. Boggs,b to be the rule in New-Jersey, where the marriage contract is under similar legislative regulations. It is the doctrine judicially declared in NewHampshire and Kentucky, and the marriage is held valid as to the parties, though it be not solemnized in form, according to the requisitions of their statute law. There are probably statute provisions of a similar import in other states of the Union ; and wherever they do not exist and specially apply, the contract is, every where in this country, (except in Louisiana,) under the government of the English common law.
(7.) It has been a point much discussed in the English courts, whether a clandestine marriage in Scotland, of English parties, who resided in England, and resorted to Scotland, with an intent to evade the operation of the English marriage act, could be received and considered in England, as valid. Though we may not, in this country, have at present any great concern with that question, the principle is nevertheless extremely important in the study of the general jurisprudence, applicable to the marriage contract.
As the law of marriage is a part of the jus gentium, the general rule undoubtedly is, that a marriage valid by the law of the place where it is made, is valid every where. An exception to this.rule is stated by Huberus,d who maintains, that if two persons, in order to evade the law of Holland, which requires the consent of the guardian or curator, should go to Friezeland, or elsewhere, where no such consent is necessary, and there marry, and return to Holland, the courts of Holland would not be bound by the law of nations
a Reeve's Domestic Relations, p. 196. 200. 290.
to hold the marriage valid, because it would be an act done ad eversionem juris nostri. In opposition to this opinion, we have the decision of the Court of Delegates in England in 1768, in Compton v. Bearcroft," where the parties, being English subjects, and one of them a 'minor, ran away, without the consent of the guardian, to avoid the English law, and married in Scotland. In a suit in the Spiritual Court, to annul the marriage, it was decided, that the marriage was valid. This decision of the Spiritual Court has been since Frequently and gravely questioned. Lord Mansfield, a few years before that decision of the delegates, intimated pretty strongly,b his opinion in favour of the doctrine in Huberus, though he admitted the casell remained undecided in England. The settled law is now! understood to be, that which was decided in the Spiritual Court. It was assumed and declared by Sir George Hay, in 1776, in Harford v. Morris,c to be the established law. The principle is that in respect to marriage, the les loci sontractus prevails over the lex domicilii, as being the safer rule, and one dictated by just and enlightened views of international jurisprudence. This rule was shown by the foreign authorities referred to by Sir Edward Simpson in 1752, in the case of Sorimshire v. Scrimshire,d to be the law and practice in all civilized countries by common consent and general adoption. It is a part of the jus gentium of Christian Europe, and infinite mischief and confusion would ensue with respect to legitimacy, succession, and other rights, if the validity of the marriage contract was not to be tested by the taws of the country where it was made. This doctrine of the English ecclesiastical courts, was recognised by the Supreme Court of Massachusetts, in Medway v. Needham ;e and though the parties in that case
a Buller's N. P. 114. 2. Haggard, 443, 444. S. C.
Robinson v. Bland. 2 Burr. 1077, c 2 Haggard, 428-433. d 2 Haggard, 412_416.
16 Mass. Rep. 157.
left the state on purpose to evade its' statute law, and to marry in opposition to it, and being married returned again, it was held, that the marriage must be deemed valid, if it be valid according to the laws of the place where it was contracted, notwithstanding the parties went into the other state with an intention to evade the laws of their own. It was admitted, that the doctrine was repugnant to the general principles of law relating to other contracts; but it was adopted in the case of marriage, on grounds of policy, with a view to prevent the public mischief and the disastrous consequences which would result from holding such marriages void. It was hinted, however, that this comity giving effect to the lex loci, might not be applied to gross cases, such as incestuous marriages, which were repugvant to the morals and policy of all civilized nations. This comity has been carried so fara as to admit the legitimacy of the issue of a person who had been divorced a vinculo for adultery, and who was declared incompetent to re-marry, and who had gone to a neighbouring state where it was lawful for him to re-marry, and there married.
a West ambridge v. Lexington, 1 Pickering, 506. b By the French civil code, No. 63. ; publication of banns is to pre• cede marriage; andby the article No. 170., if a Frenchmau marries in a foreign country, the same regulation is still to be observed; and yet, according to Toullier, Droit Civil Francais, tom. 1. No. 578. and note ib. the omission to comply with the prescrbed publication does not render the marriage void, whether celebrated it home or abroad. But if the marriage by a Frenchman abroad, he within the age of consent fixed by the French code, though beyond the age of consent fixed by our law, it would seem, that the marriage would not be regarded in France as valid, though valid by the law of the place where it was celebrated. The French code, No. 170., requires the observance by Frenchmen of the ordinances of that code, though the marriage be abroad, for personal laws follow Frenchman wherever they go. Toullier, Droil Francais, lom. 1. Nos. 118. and 576.
ed,a that corporeal impotence is not, under our existing laws, a cause of divorce, and that the English law of divorce on that point has never been adopted. The new French code is silent on this point; and Toullierb condemns a decree of divorce causa impotentiæ, which was pronounced in France in 1808, as contrary to the spirit of the code, and leading to scandalous inquiry
During the period of our colonial government, for more than one hundred years preceding the revolution, no divorce took place in the colony of New-York; and for many years after we became an independent state, there was not any lawful mode of dissolving a marriage in the lifetime of the parties, but by a special act of the legislature. This strictness was productive of public inconvenience, and often forced the parties, in cases which rendered a separation fit and necessary, to some other state, to avail themselves of a more easy and certain remedy. At length, the legislature, in 1787, authorized the Court of Chancery to pronounce divorces a vinculo, in the single case of adultery, upon a bill filed by the party aggrieved. As the law now stands, a bill for a divorce for adultery, can be sustained in two cases only: (1.) If the married parties are inhabitants of this state, at the time of the commission of the adultery: (2.) If the marriage took place in this state, and the party injured be an actual resident at the time of the adultery committed, and at the time of filing the bill.c If the defendant answers the bill, and denies the charge, a feigned issue is to be awarded, under the direction of the Chancellor,to try the truth of the charge before a jury, in a court of law. Upon the trial of the issue, the fact must be sufficiently proved by testimony, independent of the confession of the party ; for, to guard against all kind of improper influence, collusion, and fraud, it is the general policy of the law on this subject, not to proceed
a Burtis v. Burtis, 1 Hopkins, 557. 6 Droit Civil Francais, tom. 1. No. 525. c Laws of N. Y. act of 13th April, 1813. ch. 102: