were held to be null and void. I presume that such a decision will not be considered as law here, as between the several states. But supposing a marriage here is dissolved abroad, as in Scotland or France, for instance, for causes not admissible with us, how would such a divorce affect a marriage solemnized here? A short examination of some of the cases discussed in England and Scotland on this litigious subject, may be useful and instructive. The couflictus legum is the most perplexing and difficult title of any in the jurisprudence of public law.

In Utterton v. Tewsh," the marriage was in England, and the husband afterwards committed adultery, and abandoned his wife, and went to Scotland, and resided there above forty days, living in adultery. The wife sued for a divorce a vinculo, in the Consistorial Court in Scotland, in 1811, and the court dismissed the bill, on the ground that the husband had not formed a real and permanent domicil in Scotland, so as to give the court jurisdiction. Here was an English marriage by English parties, who had not changed their original English domicil, and if they had, the judges doubted whether, according to the jus gentium, the lex loci contractus ought not to be preferred. There was great danger of collusion of English parties to obtain a divorce a vinculo in Scotland, in opposition to the English law, which does not allow such divorces; and if decrees might be obtained in Scotland, which would be invalid in England, a distressing collision would arise, and dangerous questions touching the legitimacy of children by a second marriage, and the rights of succession, and the crime of bigamy.

But the decree of the Consistorial Court was reversed on appeal, and the cause was remanded to that court, and they, accordingly, proceeded upon the bill for a divorce, and pronounced a divorce a vinculo for the adultery charged. Lord Meadowbank, in pronouncing the decree of re

a Fergusson's Reports of Decisions in the Consistorial Court of Scotland, in actions of divorce, p. 23.

versal in the Supreme Court of Review, delivered a learned and powerful opinion. He observed, that the relation of husband and wife was acknowledged jure gentium, and the right to redress wrongs incident to that relation attached on all persons living within the territory, though the marriage was celebrated elsewhere. It was not necessary that the foreigners should have acquired a domi cil animo remanendi; and if the law refused to apply its rules to these domestic relations, recognised by all civilized nations, Scotland could not be deemed a civilized country; as thereby it would permit a numerous description of persons to traverse it, and violate with impunity all the obligations of domestic life. If it assumed jurisdiction, and applied, not its own rules, but the law of the foreign country where the relation had been created, the supremacy of the law of Scotland, within its territory, would be compromised, and powers of foreign courts unknown to the law usurped and exercised. A domicil was of no consequence, if the foreigner was to be personally cited, or his residence sufficiently ascertained. If the wife who prosecuted was innocent of any collusion, it was no bar to the remedy, that the husband came to Scotland and committed adultery, with a calculation that it would be detected by the wife, or that he came to Scotland with the criminal intent of instigating his innocent wife to divorce · him.

In the next case that came before the Consistorial Court, in 1816," the parties married, and lived in England, and the husband deserted his wife, committed adultery, and domiciled himself in Scotland. The judges did not concur in their views of the subject. Two of them held, that the husband was sufficiently domiciled in. Scotland to give jurisdiction, but that the law of England, which was the locus contractus, ought to govern, upon principles of comity and international law, and not the

a Duntze v. Levett, Fergusson, p. 68.

lex domicilii. They were, therefore, of opinion, that the divorce for the adultery should be only a mensa et thoro. The other two judges thought that the domicil was not changed, and therefore a divorce a vinculo could not be pronounced. On appeal, the Court of Session remanded the cause for the purpose of inquiry into the fact of domicil The Consistorial Court then held, that the real English domicil of the husband was not changed by being a weekly lodger in Scotland for eighteen months, and that a change of the real domicil made bona fide et animo remanendi, at the date of the action, was necessary, for the purpose, not, indeed, of jurisdiction, but to determine whether the rule of the lex loci,upon principles of international law,did or did not apply. The rule of judgment must be the lex loci, as there was no change of the real English domicil, and, therefore, a divorce a mensa et thoro, and none other, was pronounced. But on appeal this decree was also reversed by the Court of Session, and the court below ordered to render a decree of divorce a vinculo.

A third case was decided in 1816. The marriage was in England; but the parties lived and cohabited together in Scotland, for eight years, and the adultery was committed there. The question was not one of domicil, for that was too clear to be questioned, but it was the general and broad question, whether the lex loci contractus, or the law of the domicil, was to govern in pronouncing the divorce. Two of the judges were for following the law of the domicil, and rendering a divorce a vinculo, and the other two were for the lex loci, and granting only a divorce a mensa. But the court of review reversed this decree also, and directed the cause to proceed upon the law of Scotland.

In Butler v. Forbes, decided in 1817,6 the marriage was in Scotland; but the real domicil of the parties was in Ireland. The adultery was committed in Scotland, during a

• Edmonstone v. Lockhart, Fergusson, p 168.

b Fergusson, p. 209.

transient visit there. The consistory court held, that the law of the real domicil must prevail over the law of the contract. The locus delicti was immaterial, but the law of the real domicil was the governing principle, and they refused any other than a divorce a mensa. The court of review reversed this decree also, and directed a divorce a vinculo.

In Kibblewhite v. Rowland, in 1816,a the parties were English, and married, and domiciled in England; but the defendant had committed adultery on a visit to Scotland, and his wife sued him for a divorce. The Consistorial Court held, that both the law of the contract and the law of the domicil were against a divorce a vinculo, and they refused it. This decree was also reversed, and the usual divorce a vinculo directed.

I will cite but one more of these Scotch decisions, in which the subject is discussed in a very masterly manner. The case of Gordon v. Pye, was decided in the Consistorial Court, in 1815. The parties were English, and married in England,and resided there during the whole period of cohabitation. The husband deserted his wife, and transiently transferred his domicil to Scotland,and committed adultery there. The Court dismissed the bill, on the principle that the lex loci contractus must govern, as the permanent domicil was still in England, and a divorce a vinculo could not be obtained. The court insisted, that by the jus gentium, courts in one country cannot set aside contracts valid in another country where they were made. A temporary residence.raised for the purpose of jurisdiction, would be in fraudem legis. The lex loci is the sound rule of decision in respect to marriage contracts; and the courts of one country ought not to be converted into engines for either eluding the laws of another, or determining matters foreign to their territory. The lex loci ought to prevail over the lex domicilii on just principles of international policy, as the marriage contract is jure gentium. All Christian states favour the perpetuity of marriage, and suspicion, and alarm watch every step to

a Fergusson, p. 226.

b Fergusson, p. 276.

dissolve it, and the plaintiff was entitled er comitate, and upon principles of international law, to the same measure of redress she would be entitled to in England, and especially when the lex loci contractus, and the lex domicilii, both concurred. To grant such divorces contrary to the lex loci, would be to invite foreigners to come to Scotland and commit adultery for the sake of the divorce, and this would hurt the public morals, and pollute a jurisdiction constituted to act in evident hostility to the laws and the policy of other states.

But the Court of Session reversed the decree, in opposition to all this reasoning and doctrine; and they insisted that the relation of husband and wife,, wherever originally constituted, was entitled to the same protectiou and redress as to wrongs committed in Scotland, that belong of right to that relation by the law of Scotland. By marrying in England, the parties do not become bound to reside. for ever in England, or to treat one another in every other country according to the provision of the law of England. To redress the violation of the duties and abuse of the powers of the marriage state, belongs to the law of the country where the parties reside, and to which they contract the duties of obedience, whenever they enter its territories. There is nothing in the will of the parties that gives the lex loci any particular force over the marriage contract, or that impedes the course of the jus publicum, in relation to it, and it would be no objection to a divorce, at the instance of a Roman Catholic, that his marriage was, as to him, a sacrament, and by its own nature indissoluble. Other contracts are modified by the will of the parties, and the lex loci becomes essential; but not so with matrimonial rights and duties. Unlike other contracts, marriage cannot be dissolved by mutual consent; and it subsists in full force, though one of the parties should be for ever rendered incapable, as in the case of incurable insanity, from performing his part of the mutual contract. Matrimonial obligations are juris gentium, and admit of no modification by the will of the parties VOL. IN

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