more doubtful whether the contract, though valid where made, would have any force on her return to this country. But if husband and wife go abroad, and visit a country for business purposes, and there enter into business contracts obligatory on both by the law of that place, although it might be difficult to enforce the contract against the wife in America, while the husband lived, we should think the contract would be valid, and enforceable here after her husband's death, and perhaps against a second husband. (i)1

There is one peculiar result of marriage which seems to be an exception. In some places, if the parents of a child intermarry after his birth, this marriage legitimates him. In England it does not; and it has been held in England that such subsequent marriage in Scotland, where it legitimates the child, did not so far legitimate him in England as to enable him to take by inheritance land situated in England. (j) The rule would be otherwise as to personal property, the law of the domicil of the parents determining the legitimacy as to that. And we think that such a marriage in Scotland, supposing parents and child afterwards to come to America and be naturalized here, would be held here to make the child an heir, as well as to give him all other rights of legitimacy. (k) We have, however, considered the subject of illegitimate children in our first volume.

The place of marriage does not determine absolutely as to the domicil acquired by marriage. It would be obviously un

*

reasonable to permit the domicil of the parties to depend *601 upon the mere place where the marriage is celebrated, while

the parties are perhaps only in transitu. This question is therefore settled by their actual domicil at the time; the husband's domicil is determined by the two elements of actual residence and intent, as in other cases; while the wife acquires by marriage the domicil of the husband, and changes it as his changes. (1)

(i) In the absence of much direct adjudication, we refer the reader to the following authorities, as bearing more or less directly upon this question. Polydore v. Prince, Ware, 402; Drue v. Thorne, Aleyn, 72; Thompson v. Ketcham, 8 Johns. 189; Garnier v. Poydras, 13 La. 177; Potter v. Brown, 5 East, 131. See 573 et seq.

(i) Doe v. Vardill, 5 B. & C. 438, 9 Bligh, 32.

(k) Such seems very certainly to be the doctrine of the greater number and most authoritative of the civilians. See Story on Confl. of Laws, § 93 a et seq.

(1) See ante, p. *581, n. (b). But the wife may, so far as the question of divorce is concerned, have a domicil dis

1 Wheeler v. Constantine, 39 Mich. 62, decided that an Indiana woman could not evade the payment of notes given by her for goods purchased in Michigan without showing her disqualification under the Indiana laws; and that if the Michigan law authorized such notes, it could not be presumed that they were void, nor could it be conceded that if made in Michigan they were not governed by its laws. — K.

And in such case the wife's rights in and to the * property of the husband, or her own, would be determined by the law of that domicil, so far at least as relates to the personal property of both, and the real property of the husband. If the wife had real property in the country of her own domicil, hers and her husband's rights in respect to it might now be governed by the lex loci rei sitæ.

SECTION VIII.

OF FOREIGN DIVORCES.

The relation of the law of place to the subject of divorce presents questions of much difficulty. And although many cases involving some of these questions have been decided after very full consideration, both in England and in this country, some topics remain, in relation to which there exists at present much uncertainty.

The law of divorce differs greatly in different countries, because marriage itself is viewed under so great a diversity of aspect. The Catholic Church regards it as a sacrament, over which the civil law and civil tribunals have no power whatever, and which can only be dissolved by the supreme spiritual power of the Church. Protestants deny it to be a sacrament. They regard it as a civil contract, of a religious character it may be, and therefore properly associated with religious ceremonies; but wholly within the power of the civil authority. But England, which was Catholic while its common law was in course of formation, had no means provided for effecting divorce after it became Protestant; and in that country, complete divorce a vinculo was effected only by parliament, until the statute of 20 and 21 Vict. ch. 85, constituted a special court for the trial of such questions, with full power to decree a dissolution of the marriage. We suppose that in all Protestant countries judicial tribunals may grant divorces a vinculo. In the States of this Union, divorce is granted by the tribunals, for reasons which are defined by statute. In some States these causes are limited to adultery, and facts of equivalent character; and in others are extremely liberal, not to say lax. And in some of the States it is the custom of the legislatures to grant divorces. by private acts, and in practice this is sometimes done for very feeble reasons, and almost without other reason than the request.1

603

The question must therefore be one of much difficulty how far a State will recognize the validity of a foreign divorce, granted, perhaps, for causes which the law of the tribunal trying the question would hold to be wholly insufficient.

1 In South Carolina alone, no divorces whatever are granted. See 1 Bishop, Mar. Div. & Sep. § 58.

The general rule is certainly this. A divorce granted in a State in which both parties had their actual domicil, and also were married, is valid everywhere. (m) Then it may be said that, generally, every State recognizes the validity of a divorce granted where both parties have their actual domicil, if granted according to the law of that place.(mm) It has been very authoritatively declared to be the law of England, that the tribunals of that country acknowledge no foreign divorce of an English marriage. (n) A more careful consideration of the

(m) Story's Confl. of Laws, § 201; 2 Kent Com. 108. It would not be easy to find this rule established by distinct adjudications, for the reason that it is too well settled to be questioned.

(mm) Standridge v. Standridge, 31 Ga.

223.

land, living his first wife. He was tried at Lancaster for bigamy, and found guilty; but the point was reserved, and was afterwards argued before all the most learned judges of the day, who, after hearing the case fully and thoroughly discussed, first at Westminster Hall, and then at Sergeant's Inn, gave a clear and unanimous opinion, that no divorce or proceeding in the na ture of divorce in any foreign country, Scotland included, could dissolve a mar

(n) In Lolley's case, Russ. & Ry. Cr. Cases, 237, English subjects were married in England; the husband went to Scotland; there he was divorced a vinculo; he returned to England and marriage contracted in England; and they ried there, his first wife living; he was indicted for bigamy, convicted, and sentenced to transportation. Lord Brougham, in deciding M'Carthy v. Decaix, 2 Russ. & M. 614, 619, comments upon Lolley's case, and upon Lord Eldon's remarks upon it, and says: 'I find, from the note of what fell from Lord Eldon on the pressent appeal, that his lordship labored under considerable misapprehension as to the facts in Lolley's case; he is represented as saying he will not admit that it is the settled law, and that therefore he will not decide, whether the marriage was or not prematurely determined by the Danish divorce. His words are, I will not without other assistance take upon myself to do so.' Now, if it has not validly and by the highest authorities in Westminster Hall been holden, that a foreign divorce cannot dissolve an English marriage, then nothing whatever has been established. For what was Lolley's case? It was a case the strongest possible in favor of the doctrine contended for. It was not a question of civil right, but of felony. Lolley had bona fide, and in a confident belief, founded on the authority of the Scotch lawyers, that the Scotch divorce had effectually dissolved his prior English marriage, intermarried in Eng

sentenced Lolley to seven years' transportation. And he was accordingly sent to the hulks for one or two years; though in mercy the residue of his sentence was ultimately remitted. I take leave to say, he ought not to have gone to the hulks at all, because he had acted bona fide, though this did not prevent his conviction from being legal. But he was sent notwithstanding, as if to show clearly that the judges were confident of the law they had laid down; so that never was there a greater mistake than to suppose that the remission argued the least doubt on the part of the judges. Even if the punishment had been entirely remitted, the remission would have been on the ground that there had been no criminal intent, though that had been done which the law declares to be felony. I hold it to be perfectly clear, therefore, that Lolley's case stands as the settled law of Westminster Hall at this day. It has been uniformly recognized since; and in par ticular it was repeatedly made the subject of discussion, before Lord Eidon himself, in the two appeals of Tovey e. Lindsey, 1 Dow, 117, 131, in the House of Lords, when I furnished his lordship with a note of Lolley's case, which he followed in disposing of both those appeals, so far

1 As to divorce in England of foreign subjects, see Le Sueur v. Le Sueur, 1 P. D 139; Niboyet v. Niboyet, 3 P. D. 52. An English divorce court will recognize a Scotch divorce of persons there domiciled who were married in England, Harvey r Farnie, 5 P. D. 153; but not a divorce in the United States of persons married in England if one party went there without the other involuntarily, or without a transfer of domicil. Briggs &. Briggs, 5 P. D. 163 — K.

cases would, however, lead to the conclusion, that the 604 established rule in England goes no further than that

an English marriage cannot be terminated by a foreign 605 divorce, unless both parties are actually domiciled in the country where the divorce takes place. All the courts in this country, and all our legislatures, do not go so far as this; for some hold and practise upon the rule, that if the parties, or indeed if only the party seeking the divorce, is within the jurisdiction of the court by a present domicil, it is enough, without