§ 459. Advice of counsel. How far the advice of counsel may go to establish the fact of probable cause for the prosecution, is a point upon which there has been some diversity of opinion. It is agreed, that if a full and correct statement of the case has been submitted to legal counsel, the advice thereupon given furnishes sufficient probable cause for proceeding accordingly.1 (a) But whether the party's omission to state to his counsel a fact, well known, but honestly supposed not to be material, or his omission, through ignorance, to state a material fact which actually existed, will render the advice of counsel unavailable to him as evidence of probable cause, does not appear to have been expressly decided.2 The rule, however, as recognized in a recent American case, seems broad enough to protect any party acting in good faith and without gross negligence. For it is laid down, that if the party "did not withhold any information from his counsel, with the intent to procure an opinion that might operate to shelter and protect him against a suit, but, on the contrary, if he, being doubtful of his legal rights, consulted learned counsel with a view to ascertain them, and afterwards pursued the course pointed out by his legal adviser, he is not liable to this action, notwithstanding his counsel may have mistaken the law." 3

1 Hewlett v. Cruchley, 5 Taunt. 277. And see Snow v. Allen, 1 Stark. 502; Ravenga v. McIntosh, 2 B. & C. 693.

2 In Thompson v. Mussey, 3 Greenl. 305, 310, the defendant had prosecuted the plaintiff for misconduct as an assessor, in not giving public notice, in the warrant calling a town meeting, of the time and place of the meeting of the assessors, to receive evidence of the qualifications of voters whose names were not on the public list. The county attorney had advised the defendant that the notice was required by law to be inserted in the warrant; but in this case it was contained in a separate paper, posted up by the side of the warrant; but this fact, though known to the defendant, he did not state to the grand jury. And the court seemed to think, that if this omission had not been intentional and fraudulent, the opinion of the county attorney would have furnished probable cause for the prosecution.

8 Stone v. Swift, 4 Pick. 393. In this case, however, no question was made

though the belief was based upon an error in the law. Cecil v. Clarke, 17 Md. 508. The declarations of one who assisted the plaintiff in the taking, made at the tak ing, and tending to persuade defendant that plaintiff acted without right, are competent evidence. Ib.

(a) Smith v. Davis, 3 Mont. 109; Wicker v. Hotchkiss, 62 Ill. 107; Walter v. Sample, 25 Penn. St. 275; Laird v. Davis, 17 Ala. 27. And where counsel is called to testify what advice he gave, he may be asked upon cross-examination what facts were communicated to him upon

which his advice was given. Cooper v. Utterback, 37 Md. 282.

If the advice of counsel was given maliciously and not in good faith (Sherburne v. Rodman, 51 Wis. 474; Hamilton v. Smith, 39 Mich. 222); or if he is interested in the subject-matter of the suit or prosecution (White v. Carr, 71 Me. 555); his advice is no defence. If the defendant tries to consult his attorney before causing an arrest, and fails to find him, this evidence is competent on the question of malice. Hopkins v. McGillicuddy, 69 Me. 273.

whether any material fact had been omitted. See acc. Hall v. Suydam, 6 Barb. S. C. 83; Thompson v. Mussey, 3 Greenl. 310. See also Blunt v. Little, 3 Mason, 102; Commonwealth v. Bradford, 9 Met. 268. If any material fact were culpably withheld from the counsel, or if a contrary opinion were given by another of his legal advisers, or if the prosecution were malicious, it is held that the advice of counsel will not be a sufficient defence. Stevens v. Fassett, 14 Shepl. 266.

MARRIAGE.

§ 460. Contract how made. Marriage is a civil contract, jure gentium, to the validity of which the consent of parties, able to contract, is all that is required by natural or public law. (a) If the contract is made per verba de præsenti, though it is not consummated by cohabitation, or, if it be made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, in the absence of all civil regulations to the contrary.1 (b) And though in most, if not all, the United States there are statutes regulating the celebration of the marriage rites, and inflicting penalties on all who disobey the regulations, yet it is generally considered that, in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be absolutely void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage, regularly made according to the common law, without observing the statute

1 2 Kent, Comm. p. 87; Fenton v. Reed, 4 Johns. 52; Jackson v. Winne, 7 Wend. 47.

66

(a) By the common law, both in England and in this country, the age of consent is fixed at twelve in females and fourteen in males. Contracts of marriage between infants, being both of the age of consent, if executed, are as binding as if made by adults. Co. Lit. 79 b; Reeve's Dom. Rel. 236, 237; 20 Am. Jur. 275; 2 Kent, Comm. (6th ed.) 78; Pool v. Pratt, 1 Chip. 254; Governor v. Rector, 10 Humph. 61. This rule, originally engrafted into the common from the civil law (1 Bl. Comm. 436; Macph. on Inf. 168, 169), is undoubtedly an exception to the general principles regulating the contracts of infants, and might at first seem to disregard the protection and restraint with which the law seeks to surround and guard the inexperience and imprudence of infancy. But in regulating the intercourse of the sexes, by giving its highest sanctions to the contract of marriage, and rendering it, as far as possible, inviolable, the law looks beyond the welfare of the indi

vidual and a class, to the general interests of society; and seeks, in the exercise of a wise and sound policy, to chasten and refine this intercourse, and to guard against the manifold evils which would result from illicit cohabitation. With this view, in order to prevent fraudulent marriages, seduction, and illegitimacy, the common law has fixed that period in life when the sexual passions are usually first developed, as the one when infants are deemed to be of the age of consent, and capable of entering into the contract of marriage. By Bigelow, J., Parton v. Hervey, I Gray (Mass.), 121; Bennett v. Smith, 21 Barb. (N. Y.) 439; Governor v. Rector, 10 Humph. (Tenn.) 57; Godwin v. Thompson, 2 Greene (Iowa), 329. See Shafher v. State, 20 Ohio, 1.

(b) Hallet v. Collins, 10 How. (U. S.) 174; Clayton v. Wardell, 4 Comst. (N. Y.) 230; Graham v. Bennett, 2 Cal. 503; Bishop on Mar. & Di 5th ed. §§ 246268.

regulations, would still be a valid marriage.1 (a) A marriage celebrated in any country according to its own laws is recognized

1 2 Kent, Comm. pp. 90, 91; Reeve's Dom. Rel. pp. 196, 200, 290; Milford v. Worcester, 7 Mass. 55, 56; Londonderry v. Chester, 2 N. H. 268; Cheseldine v. Brewer, 1 Har. & McH. 152; Hantz v. Sealey, 6 Binn. 405. It has more recently been held in England, by Dr. Lushington, that prohibitory words, in a marriage act, will not authorize an inference of nullity of the marriage, unless the nullity was declared in the act. Catterall v. Sweetman, 1 Rob. Eccl. 304. In a subsequent cause between the same persons, it appeared that they had been married in New South Wales, by a minister of the Scotch Presbyterian Church, according to the forms of the statute provided for members of that church alone, in that colony; but that neither of the parties belonged to that church, and so were not within the terms of the statute. But the same learned judge held that the marriage, nevertheless, was sufficiently valid, as between the parties, to found thereon a decree of divorce for a violation of the marriage vow. His observations on this delicate question were as follows: "The question which I have to decide on the present occasion is, whether the marriage which has taken place between these parties is a sufficient marriage to enable the court to pronounce a sentence of separation by reason of adultery, which it is admitted on all hands has been committed by the wife. It is true, that the allegation given in the case commences by pleading the local act of the legislature of New South Wales, from which it would ap pear to follow, that it was intended to plead that the marriage was held in pursuance of the local act. Whether that is so or not, if the court is satisfied that the marriage is sufficiently valid to enable it to pronounce for a separation, it will not be necessary to enter into a consideration of this act. I shall not give my judgment at length, for this obvious reason: when the case came for my consideration in July, 1845 (Jur. 950; 1 Rob. 304), I then stated, after great consideration, all the reasons that occurred to me to bring my mind to the conclusion that the marriage in question was not void. Now, if I could not pronounce that the marriage in question was void, it seems to me that I must pronounce it valid for certain purposes; and if valid for certain purposes, valid for the husband or the wife, as the case might be, to obtain a separation for a violation of the marriage vow. How does the case stand? New South Wales is a colony of Great Britain, amenable, according to all the authorities, to all those acts of Parliament, and all that law, which belonged to the mother-country, and which were considered to be applicable to a new colony. No doubt very great difficulties have from time to time arisen, both as to what common law and what acts of Parliament should be imported into a colony. But it is unnecessary to discuss this question, because it has been discussed over and over again by more able judges than myself. And there can be no doubt that the ancient law of Great Britain must have been carried to this colony, because Lord Hardwicke's Act, being expressly confined to England and Wales, could not be imported to a colony; and consequently, the law that existed in New South Wales was the original law of England, as it existed before Lord Hardwicke's Act. Upon that has been engrafted, under the authority of an act of Parliament, this act of the local legislature. I have already determined, and I shall not repeat my reasons, that, whatever may be the effect of the local act, it does not render the marriage invalid; then the simple question is, if the local act does not render it invalid, whether, according to the ancient law of England, a marriage before a Presby terian minister is valid, and valid only to the extent upon which I am required to pronounce an opinion, namely, to pronounce a separation a mensa et thoro. When I consider how much that was discussed in the celebrated case of The Queen v. Millis (10 Cl. & Fin. 534), when all the authorities that could be adduced were brought to bear in the opinions of the learned judges on that occasion, I am justified in saying this; there was nothing fell from any one of the judges in the House of Lords-I am not speaking of the opinion of the common-law judges, but of the law lords- which in any way intimated that the marriage would not be sufficient to enable the court to proceed to a separation a mensa et thoro. I am not disposed to make the decision of The Queen v. Millis any authority further than it goes, and for two reasons: first, the law lords were divided, and it was only in consequence of the form in which the case came before them, that it could be considered a judgment at all. In the next place, and for a reason equally strong, that, throughout the whole of our colonies, at various times and various places, if I were to

(a) Parton v. Hervey, 1 Gray (Mass.), 119.

and valid in every other country whose laws or policy it may not contravene; but the converse of this rule is not universally true.2

hold that the presence of a priest in the orders of the Church of England was necessary. to the validity of a marriage, I should be going the length of depriving thousands of married couples of a right to resort to this court for such benefit as it can give in cases of adultery or cruelty. It is notorious that, till within a few years, there were no chaplains belonging to the East India Company; and if I were to adopt another principle, the result would be this: that, as to all those marriages had by the collectors in the service of the East India Company, and had by judges when no priest was procured, I should be entering into this disquisition, a disquisition impossible to follow, - namely, whether there was a marriage ex necessitate, because no clergyman was to be found. Now, until I am controlled by a superior authority, I unquestionably, in this case, and in all others, wherever I find, in any of the colonies, no local law prohibiting a marriage of this description, and no act of Parliament reaches it, in all these cases I shall look at the marriage according to the ancient canon law; and where it has been had, not before a clergyman, but consent is had de facto, I shall hold that sufficient to enable the court to pronounce a decree, when it is necessary to pronounce one. I have no right to postpone my decision and give a more deliberate judgment; because I do not know that any time I could give would throw light on the question beyond what is to be collected from former decisions; and I am certain that no examination into the cases will induce me to change my opinion, until I am overruled by an authority superior to mine." See Catterall v. Catterall, 11 Jur. 914 (a).

1 Schrimshire v. Schrimshire, 2 Hagg. Consist. 407, 419; 2 Kent, Comm. 91, 92. The exceptions to the generality of the rule, that the lex loci governs the contract of marriage, are of three classes: (1.) In cases of incest and polygamy; (2.) When prohibited by positive law; (3.) When celebrated in desert or barbarous countries, according to the law of the domicile. Story, Confl. Laws, §§ 114-119 (b).

2 Per Ld. Stowell, 2 Hagg. Consist. 390, 391; Story, Confl. Laws, §§ 119-121 (c). If parties go abroad for the purpose of contracting in a foreign State a marriage which could not have been contracted in their own country, but is not in violation of good morals, it seems, that it is to be held valid, if not made invalid by express statute. Medway v. Needham, 16 Mass. 157; Putnam v. Putnam, 8 Pick. 433; Bull. N. P. 113, 114; Phillips v. Hunter, 2 H. Bl. 412; Story, Confl. Laws, §§ 123 a, 123 b, 124 (d).

(a) Duncan v. Cannan, 23 Eng. Law & Eq. 288. The presumption is very cogent in favor of the validity of a marriage which has been celebrated de facto. Piers v. Piers, 2 H. of L. Cas. 331; Sechel v. Lambert, 15 C. B. N. s. 781.

(b) Bishop on Mar. & Div. 5th ed. §§ 353400. A foreign marriage is prima facie established by proof of the ceremony, the certificates of which may be put in evidence, without first proving the foreign law on the subject. There is a common law of marriage, which prevails in all Christian coun tries. Hutchins v. Kimmel, 31 Mich. 126.

(c) Bishop on Mar. & Div. 5th ed. §§ 353-400.

(d) A marriage in Massachusetts by a woman previously married in another State, and there divorced for acts of hers which would not be a cause of divorce in Massachusetts, is valid in Massachusetts, though contracted while her former husband is still living. Clark v. Clark, 8

Cush. (Mass.) 385. In giving the opinion of the court, Shaw, C. J., said: "Marriage originates in a contract; and whether the contract be valid or not, depends, prima facie, upon the law of the place where the contract is entered into. But marriage, where lawfully contracted and valid, establishes a relation between the parties, universally recognized in all civilized and Christian communities, from which certain rights, duties, and obligations are derived; these rights and duties attach to the persons of the parties, as husband and wife, and follow them when they change their domicile from one jurisdiction to another. Among these rights is that of seeking the dissolution of the conjugal relation in the manner and for the causes allowed by the law of the place where they have bona fide and without any sinister purpose taken up their domicile; and the tribunals of such government, acting in conformity to its laws, have jurisdiction of the persons of the parties and of the subject-matter of the