It may be added that, whilst a marriage, in order to be recognized by the English Courts, must have the basis above defined, the parties to such a marriage can claim relief whether they be Christians or not (v).]

[(v) Vide infrà, § cccclxxxvii.]

CHAPTER XIX.

MARRIAGE-EFFECTS ON PROPERTY (a).

CCCCXL. THE maxim of the Roman Law, that the home of the husband becomes, immediately on marriage, the domicil of the wife, was expressed in very forcible language. The woman, said that law, if she be absent, cannot be married by letter or by proxy, "deductione enim opus esse in mariti, non in uxoris domum, quasi in domi"cilium matrimonii" (b).

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It is well said by Savigny, that in this language is expressed not any peculiar characteristic of the positive Law of Rome, but a recognition of the relation which necessarily, and universally, springs from the general nature of the institution of Marriage. All States, accordingly, Christian and Heathen, appear to have founded their Marriage Laws upon this principle, as their basis-that the home of the husband is the domicil of the wife.

CCCCXLI. It may be useful to state the various questions of law which have been raised, and variously solved by various jurists, on the effect of Marriage upon the property of the wife.

(a) Rocco, p. 294.

Savigny, R. R. viii. s. 379.

Fœlix, liv. ii. t. i. c. ii. ss. 90, 91.

Story, c. vii. Marriages-Incidents to.

1 Burge, Comm. on For. and Col. Law, Pt. I. c. vii. Effect of marriage on the property of the husband and wife, and c. vi. s. 2. Westlake, p. 352, &c.

(b) Dig. lib. xxiii. t. ii. 5.

Disabilities of American Women married abroad, by W. B. Lawrence, LL.D., New York, 1871.

CCCCXLII. These questions of law presuppose, however, a certain state of facts with respect to the Marriage, the Property, and the Domicil of the parties, which it is of importance to notice.

Firstly, as to the Marriage :

The Marriage has taken place either,-
1. Without any express contract; or,
2. With an express contract.
Secondly, as to the Property :-
The Property has been acquired,—
1. Before the marriage; or,

2. After the marriage.
Thirdly, as to the Domicil:-

1. It is either the same as it was when the marriage was contracted; or,

2. It has been changed, and a new one acquired

subsequently to the marriage.

CCCCXLIII. Upon one or other of these states of facts, the following questions of law have been raised :

1. Assuming that the marriage has taken place without express contract, is the law which governs the property of married persons a Real or a Personal Statute? in other words, is it the lex rei sitæ, or the lex domicilii of the husband?

2. Is the law founded on the doctrine of a tacit contract between husband and wife? or does it spring, proprio vigore, from the relations of Marriage?

3. Does this law affect property acquired after, as well as before, the marriage ?

4. If, after the marriage, a new domicil shall have been acquired in a State which has a law respecting the property of married persons other than, and dfferent from, the law of the State which was the domicilium matrimonii-is the Law of the old or the new domicil to govern the question?

5. If the Law of the new domicil, does it govern both kinds of property-that acquired before, and that acquired after, the marriage?

6. If the Law of the husband's domicil allow, in the absence of any express contract, two modes of regulating the conjugal association as to property-as in France, where there are le régime de la communauté and le régime dotal-is it in the power of the husband or of the wife to choose which of the two modes shall prevail in the case of their marriage?

7. Assuming the marriage to have taken place under express contract, how does this fact affect the answer to the foregoing questions?

8. By what Law is the express contract to be interpreted? the Law of the place in which it was contracted? or the Law of the place in which it is to be executed? lex loci contractús? or lex domicilii matrimonii?

CCCCXLIV. a. The answers which these questions have received from the jurists, the judges and the legislators of States, the basis of whose jurisprudence is the Roman Law, have not been uniform.

B. In England and Ireland, and in such of the United States of North America as have adopted the English Law, these questions have been but little discussed till lately; and then chiefly in England: and there have been, as will be seen, points of important difference between England and the United States in the exposition of the Law upon this subject.

CCCCXLV. a. With respect to the jurisprudence which is founded upon the Roman Law,

First, Where the marriage has taken place without any express contract, the opinion soundest in principle and supported by the best authorities is thus expressed :-" Dic "indistinctè quod ad effectum et decisionem jurium matri"monii, ubi non fuit specificatum, nec facta relatio ad alium "certum, inspiciatur locus domicilii habitationis viri desti"natæ tempore matrimonii" (c).

(c) Boullenois, Traité &c. tom. ii. p. 262 (ed. 1766).

[See also Dumoulin (Molinus), Comment. in Codicem Just. Conclusiones de Statutis, p. 7. 'Hinc infertur ad quæstionem quotidianam

This rule prevails almost universally with respect to moveable property, and is adopted equally by those who build the Law of the Matrimonial domicil upon the theory of a tacit contract (d), and of those who adopt the doctrine that, proprio vigore, the Law of the husband's domicil prevails, inasmuch as persons marrying without express contract are presumed to marry with reference to the Law of the husband's domicil.

But with respect to immoveable property, the civilians differ greatly, first, as to the premiss whether the Law of the Community be personal or real; secondly, as to the premiss whether there be or be not a tacit contract; and lastly, they differ in the conclusions drawn from the same premiss. The soundest conclusion, and the most consistent with the general system of Comity adopted by continental writers, appears to be, that the Law of the Community extends to real property, where the lex rei site does not prohibit it from doing so (e).

CCCCXLVI. But, if the husband change his domicil after marriage

1. How does it affect property already acquired under it, or, as the civilians speak, jus quæsitum ?

The weight of authority preponderates greatly in favour of the proposition that the rights of the husband or wife which have been once constituted by the Law of the Matrimonial domicil remain unaffected by any subsequent change of domicil.

Some authorities-Meier and Wächter, for examplemake an exception in the case where the Law of the new patria expressly forbids, by positive law, the rights acquired under the old patria. But the force of reasoning and principle is against this exception.

de contractu dotis et matrimonii, qui censetur fieri non in loco in quo contrahitur, sed in loco domicilii viri.]

(d) Savigny throws his great weight into this scale, R. R. viii. s. 379; "Diese Meinung halte ich für richtig."

(e) See authorities collected by Foelix, Burge, and Story.