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with another woman, will expose to the pains of bigamy.” Alison's Prin. Cr. Law of Scot. 536. See Graham's case, 2 Lew. C.C. 97.
Proof of the marriages-marriage in Ireland. It seems not to be essential to the validity of a marriage in Ireland that the ceremony should take place in a church. Where it had been performed by a dissenting minister in a private room, the recorder was clearly of opinion that it was valid, on the ground that as before the marriage act a marriage might have been celebrated in England in a house, and it was only necessary by positive law to celebrate it in a church, some law should be shown requiring dissenters to be married in a church ; whereas one of the Irish statutes, 21 & 22 Geo. 3, c. 25 enacts, that all marriages between Protestant dissenters, celebrated by a Protestant dissenting teacher, shall be good, without saying at what place they shall be celebrated. Anon. O. B. coram Sir J. Silvester, 1 Russell, 205. So where a marriage was celebrated at a private house in Ireland by a clergyman of the church of England, the curate of the parish, Best, C. J., held it to be valid. He said, “ When I find that this marriage was performed by a gentleman who had officiated as curate of the parish for eighteen years, I must presume it to have been correctly performed according to the laws of that country, and I shall not put the defendant (it was an action in which coverture was pleaded) to the production of a license or to any further proof. It is true that in a case for bigamy, tried before Mr. Justice Bayley, on the northern circuit, an acquittal was directed, because the first marriage, which took place in Ireland, was performed in a private house; but I have reason to know that that learned judge altered his opinion afterwards, and was satisfied of the validity of the first marriage.” Smith v. Maxwell, Ry. and Moo. N. P. C. 80 (a). The case referred to by Best, C. J., appears be that of R. v. Reilly, 3 Chetw. Burn, 726, in which there was no direct evidence that the law of Ireland permitted a marriage to be celebrated at a private house.
*Where the first marriage was in Ireland, and it appeared [ *285 ) that one of the parties was under age, and no consent of parents was proved, the judges, after referring to the Irish marriage act, 9 Geo. 2, c. 11, were of opinion that though that act has words to make such a marriage void, yet other parts of the statute show that it is voidable only, and any proceedings to avoid it must be taken within a year; and they therefore held the first marriage binding. Jacob's case, 1 Moody, C. C.
Proof of the marriages—marriage abroad.] The general principle with regard to marriages contracted in a foreign country is, that between persons sui juris, marriage is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere. It has a legal ubiquity of obligation. If invalid there, it is equally invalid everywhere. Story on the Conflict of Laws, 104 ; citing Ryan v. Ryan, 2 Phill. Ecc. Rep. 332 (c); Herbert v. Herbert, 3 Phill. Ecc. Rep. 58 (d); Dalrymple v. Dalrymple, 2 Hagg. Cons. Rep. 54 (e); Ruding v. Smith, 2 Hagg. Cons. Rep. 390, 391 (S); Scrimshire v. Scrimshire, 2 Hagg. Cons. Rep.
395 (a); Ilderton v. Ilderlon, 2 H. Bl. 145; Middleton v. Janverin, 2 Hagg. 437 (b); Lacon v. Higgins, 3 Stark. N. P. C. 178 (c); 2 Kent Com. Lect. 26, p. 91 (2d ed.); 2 Kaims on Eq. b. 3, c. 8, s. 1(1). The most prominent, if not the only exceptions to this rule, are those relating to polygamy and incest : those positively prohibited by the public law of a country from motives of policy, and those celebrated in foreign countries by subjects entitling themselves by special circumstances to the benefit of the laws of their own country.' Story on the Conflict of Laws, 104.
The first exception to the general rule mentioned by Mr. Justice Story is that relating to polygamy and incest (2). These Christianity is understood to prohibit, and no Christian country, therefore, would recognise polygamy, or an incestuous marriage. But with regard to the latter, he takes a distinction between marriages incestuous by the law of nature, and such as are incestuous by the positive code of a state ; and upon this point, he cites a judgment of one of the American courts : “If,” say the court, “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 probibited by the law of one state and not of another, if celebrated where they are not prohibited, would be held valid in a state where they are not allowed." Greenwood v. Curtis, 6 Mass. Rep. 378. “Indeed,” continues Mr. Justice Story, "in the diversity of religious opinions in Chrislian countries, a large space must be allowed for interpretation as to religious duties, rights, and solemnities. In the Catholic countries of continental Europe, there are many prohibitions of marriage which are connected with religious establishments and canons, and in most countries there are positive or customary prohibitions which involve peculiarities of religious opinion or conscientious doubt. It would be most inconvenient [ *286 ] to hold all marriages celebrated *elsewhere void, where not in scrupulous accordance with local institutions." Story on the Conflict of Laws, 107.
In England, however, incestuous marriages are not void, but only voidable during the lives of the parties; and if not so avoided, are to all intents valid. 1 Bl. Com. 434.
With regard to the second exception, the prohibitions depending upon positive law, they apply only in strictness to the subjects of a country. Story, 108. An illustration of this may be found in the Civil Code of France, which annuls (art. 174.) marriages by Frenchmen in foreign countries, who are under incapacity by the laws of France. Ibid.
The third exception arises in cases of moral necessity, and has been applied to persons residing in factories, in conquered places, and in desert or barbarous countries, or in countries of an opposite religion, who are permitted to contract marriage there according to the laws of their own country. In short, wherever there is a local necessity, from the absence of laws, or the presence of prohibitions or obstructions not binding upon other countries, or from peculiarities of religious opinion and conscientious scruple, or from circumstances of exemption from local jurisdiction, marriages will be allowed to be valid according to the law of the native dom
(1) Dumarsely o. Fishby, 3 Marsh. 369. Medway v. Needham, 16 Mass. 157. (2) Sneed o. Ewing, 5 l.'J. Marsh. 447.
(a) Eng. Eccl. Rep. iv. 562. (b) Id. 582. (c) Eng. Com. L. Rep. xiv. 176. d.
icil. Ibid. citing Ruding v. Smith, 2 Hagg. Cons. R. 371, 384, 385, 386 (a); Lautour v. Teesdale, 8 Taunt. 830 (b); 2 Marsh. 243; R. v. Inhabitants of Brampton, 10 East, 282.
Although it is an established rule that a foreign marriage, valid according to the law of the place where celebrated, is good everywhere else, yet it has not been e converso established that marriages of British subjects, not good according to the law of the place where celebrated, are universally and under all possible circumstances to be regarded as invalid in England. It is certainly the safest course to be married according to the law of the country, for then no question can be raised; but if this cannot be done on account of legal or religious difficulties, the law of this country does not say that its subjects shall not marry abroad. Per Lord Stowell, Ruding v. Smith, 2 Hagg. Cons. Rep. 371.
In proving a marriage abroad, it must appear that the ceremony performed was the marriage ceremony according to the foreign law. Thus where, on an indictment for bigamy, before the 26 Geo. 2, it appeared that the first marriage, which was with a Roman Catholic woman in England, was performed by a Catholic priest, not according to the ritual of the church of England, and the ceremony was performed in Latin, which the witnesses not understanding, could not swear even that the ceremony according to the church of Rome was read, the defendant was directed to be acquitted. Lyon's case, O. B. 1 East, P. C. 469.
In proving a marriage which has taken place abroad, evidence must be given of the law of the foreign state, in order to show its validity. For this purpose, a person skilled in the laws of the country should be called. Lindo v. Belisario, 2 Hagg. 248 (c); Middleton v. Janvers, 2 Hagg. 441 (d). But see Horford v. Morris, 2 Hagg. *431 (e). [ *287 ] Where evidence of the law of Scotland was required, the testimony of a witness, who was a tobacconist, was rejected. Anon. cited 10 East, 287.
Some obscurity seems to exist with regard to the mode of proving foreign laws in English courts. The rule, as at present understood, appears to be, that the written law of a foreign state must be proved by a copy duly authenticated. Clegg v. Levy, 3 Campb. 166. With regard to the mode of authenticating it, the following case has occurred. In order to prove the law of France respecting marriage, the French vice-consul was called, who produced a copy of the Cinq Codes, which, he stated, contained the customary and written laws of France, and was printed under the authority of the French government. Sir Thomas Picton's case, 30 How. St. Tr. 514, was referred to as an authority in favor of admitting this evidence, but it appears that there the evidence was received by consent. 30 St. Tr. 494. Abbott, J., said that the general rule certainly was, that the written law of a foreign country must be proved by an examined copy, before it could be acted on in an English Court, but according to his recollection, printed books on the subject of the law of Spain were referred to and acted on in argument in Sir T. Picton's case, as evidence of the law ofa that country, and therefore he should act on that authority and receive the evidence. Lacon v. Higgins, Dowl. and Ry. N. P. C. 38 (f); 3 Stark. 178 (8).
The practice with regard to the proof of foreign laws in the United
(a) Eng. Eccl. Rep. iv. 560. (b) Eng. Com. L. Rep. iv. 299. (c) Eng. Eccl. Rep. iv. 367. (d) Id. 582. (e) Id. 575. (f) Eng. Com. L. Rep. xvi. 42). (g) Id. xiv. 6d.
States is as follows:— The usual modes of authenticating foreign laws there, are by an exemplification under the great seal of state; or by a copy proved to be a true copy; or by the certificate of an officer authorised by law, which certificate itself must be duly authenticated. But foreign and unwritten laws, customs, and usages, may be proved, and indeed must ordinarily be proved, by parol evidence. The usual course is to make such proof by the testimony of competent witnesses, instructed in the law, under oath; sometimes, however, certificates of persons in high authority have been allowed as evidence. Story on the Conflict of Laws, 530.
Proof of the marriages—marriages abroad in British factories.) On the subject of the mode of performing marriages in British factories abroad, Lord Stowell has made the following observations. “What is the law of marriage in all foreign establishments, settled in countries professing a religion essentially different? In the English factories at Lisbon, Leghorn, Oporto, Cadiz, and in the factories in the east, Smyrna, Alleppo, and others, in all of which (some of these establishments existing under authority, by treaties, and others under indulgence and toleration,) marriages are regulated by the law of the original country to which they are still considered to belong. An English resident at St. Petersburgh does not look to the ritual of the Greek church, but to the rubic of the church of England, when be contracts a marriage with an Englishwoman. Nobody can suppose that, whilst the Mogul empire existed, an Englishman was bound to consult the Koran for the celebration of his marriage. ( *288 | Even where no *foreign connexion can be ascribed, a respect is shown to the opinions and practice of a distinct people. The validity of a Greek marriage in the extensive dominions of Turkey, is left to depend, I presume, upon their own canons, without any reference to Mahomedan ceremonies. There is a jus gentium upon this matter, an amity, which treats with tenderness, or at least, with toleration, the opinions and usages of a distinct people in their transactions of marriage. It may be difficult to say, a priori, how far the general law should circumscribe its own authority in this matter ; but practice has established the principle in several instances, and where the practice is admitted, it is entitled to acceptance and respect. It has sanctioned the marriages of foreign subjects in the houses of the ambassadors of the foreign country to which they belong. (See Portreis v. Tondear, 1 Hagg. Cons. Rep. 136 (a); and now, stat. 4 G. 4, c. 91, s. 2.) I am not aware of any judicial determination on this point, but the reputation which the validity of such marriages has acquired, makes such a recognition by no means improbable, if such a question were brought to judgment." Ruding v. Smith, 2 Hagg. Cons. Rep. 371 (b).
The validity of marriages celebrated in the chapel of any British fac-. tory abroad, or in the house of any British subject residing at such factory, is recognized by the statute 4 Geo. 4, c. 91, s. 2, (stated post, 289.)
Proof of the marriages—marriage in British colonies.] What form of celebration will confer validity on a marriage in a British colony, must depend upon the peculiar circumstances of the case. This question came before Lord Stowell, in a case in which the validity of such marriage,
(a) Eng. Eccl. Rep. iv. 357. (b) Id. 560.
celebrated at the Cape of Good Hope, between English subjects, by a chaplain of the British forces, then occupying that settlement under a capitulation recently made, was brought before him for his decision. After somne observations (which have already been cited, ante, p. 285,) he held the marriage valid, on the ground of the distinct British character of the parties, on their independence of the Dutch law, on their own British transactions, on the insuperable obstacles of obtaining any marriage confortable to the Dutch law, on the countenance given by British authority and British administration to this transaction, and on the whole country being under British dominion. Ruding v. Smith, 2 Hagg. Cons. Rep. 371 (a). Story on the conflict of Laws, 111.
A siinilar question arose in a case before the King's Bench, respecting the legitimacy of a pauper. A soldieron service with the British army in St. Domingo, being desirous of marrying the widow of another soldier, who had died there, the parties went to a chapel in the town, and the ceremony was there performed by a person appearing and officiating as a priest, the service being in French, but interpreted into English by a person who officiated as clerk, and understood at the time by the pauper to be the marriage service of the church of England. After eleven years' cohabitation, this was held to be sufficient evidence that the marriage was *properly celebrated, although the pauper (the wife) stated that (*289 ] she did not know that the party officiating was a priest. Lord Ellenborough considered the case, first as a marriage celebrated in a place where the law of England prevailed, (supposing, in the absence of any evidence to the contrary, that the law of England, ecclesiastical and civil, was recognized by subjects of England in a place occupied by the king's troops, who would impliedly carry that law with them,) and held that it would be a good marriage by that law; for it would have been a good marriage in this country before the marriage act, and consequently would be so now in a foreign colony to which that act does not extend. In the second place he considered it upon the supposition that the law of England had not been carried to St. Domingo by the king's forces, nor was obligatory upon them in this particular, and held that the facts stated would be evidence of a good marriage according to the law of the country, whatever it might be, and that upon such facts every presumption was to be made in favor of the validity of the marriage. R. v. Brampton, 10East, 228.
So a marriage between two British subjects at Madras, celebrated by a Catholic priest, not conformably to the laws of the natives of India, nor with the license of the governor, which it had been the uniform custom to obtain, was held valid. Latour v. Teesdale, 8 Taunt. 833 (6), 2 Marsh. 243.
Proof of marriages—abroad—in houses of ambassadors, &c.] It appears that before the passing of the statute 4 Geo. 4, c. 91, a marriage celebrate I in the house of an English ambassador abroad, was held valid. R. v. Branıpton, 10 East, 286; Ruding v. Smith, 2 Hagg. Cons. Rep. 371 (c), And now, by the 2d section of that statute, reciting that it is expedient to relieve the minds of all his majesty's subjects from any doubt of the validity of marriages, solemnized by a minister of the church of England in the chapel or house of any British ambassador, or minister re
(a) Eng. Eccl. Rep, iv. 560. (b) Eng. Com. L. Rep. iv. 299. (c) Eng. Eccl. Rep. iv. 560.