James Kent, Commentaries on American Law
vol. II, pp. 78-80 (1827)
LECTURE XXVI.
OF THE LAW CONCERNING MARRIAGE.
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[*78] * * *
(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 [*79] 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,[a] 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 case 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 lex loci contractus 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 Scrimshire 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 laws 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 [80] 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 he 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 repugnant to the morals and policy of all civilized nations. This comity has been carried so far[a] 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.[b]
[*78] [d] De Conflictu Legum, sec. 8.
[*79] [a] Buller’s N. P. 114. 2 Haggard, 443, 444. S.C.
[b] Robinson v. Bland, 3 Burr. 1077.
[c] 2 Haggard, 428–433.
[d] 2 Haggard, 412–416.
[e] 16 Mass. Rep. 157.
[*80] [a] West Cambridge v. Lexington, 1 Pickering, 506.
[b] By the French civil code, No. 68., publication of banns is to precede marriage; and by the article No. 170. if a Frenchman marries in a foreign country, the same regulation is still to be observed; and yet, according to Toullier, Droit Civil Français, tom. 1. No. 578. and note ib. the omission to comply with the prescribed publication does not render the marriage void, whether celebrated at home or abroad. But if the marriage by a Frenchman abroad, be 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 Frenchmen wherever they go. Touiller, Droit Français, tom. 1. Nos. 118. and 576.