55; Fenton e. Livingston, 5 Jurist, (N. S.,) 1183. But the Article above proposed is in harmony with the general rules in reference to status, proposed in this Code. And Article 552 avoids marriages which are contrary to positive law of the home of the parties when drawn in question there. Burge, after discussing the cases at some length, states the result of the opinions of jurists and the decisions of judicial tribunals to be: That the validity of the marriage, both in respect of the competence of the parties to contract, and of the solemnities with which they contract, is to be decided with reference to the law of the place in which the marriage is contracted; and if it be valid secundum legem loci contractus, it must be deemed valid in every other place, if it do not violate the law of nature, public morals, or the policy or institutions of that State in which its validity is sought to be established. Burge on Foreign and Colonial Law, vol. I., p. 199. It was held in Kinnaird v. Leslie, (Law Rep., 1 Common Pleas, 389,) that an attainder inflicted in one country ought not to affect the validity of a marriage subsequently contracted by the attainted person in a foreign country with an innocent woman who may not have known of the attainder. Requisite forms. 550. Except in the cases provided for in the next article, those forms of celebrating marriage which are optional or obligatory for the members of a nation, are equally optional for foreigners, and equally obligatory for them unless dispensed with by the law of the place. This is understood to be the generally established rule. It might be deemed well to add such a saving clause as the following: If, however, any religious ceremony shall be obligatory for citizens, any foreigner who shall depose before a magistrate that he cannot conscientiously submit to it, shall, after the completion of all other forms necessary, be admitted to marry any other foreigner or a member of the nation, by means of a written contract, signed by both parties, and deposited with such magistrate. By the declaration of December 24th, 1867, between France and the Grand Duchy of Luxembourg, for the purpose of simplifying the legalization of papers produced by the subjects of either country on contracting marriage in the other, it was provided that such documents certified whether by the president of the tribunal or a judge de pair or his deputy, should be received by the civil officer of the other country, and no other legalization should be demanded, except in case of doubt respecting the authenticity of the document. Public ministers and consuls may solemnize marriages. 551. Public ministers within the nations to which they are accredited, and consuls within their respective districts, may solemnize marriages between parties either or both of whom are members of the nation of such officer, pursuant to such forms and under such restrictions as may be prescribed by that nation. Such marriages are valid, as if solemnized or contracted within the territorial jurisdiction of such nation according to its laws. This Article is suggested by the British Consular Marriage Acts of 1849 and 1868, 12 and 13 Vict. 224, ch. 68; 31 and 32 Vict. 264, ch. 61; and the American act of June 22, 1860, § 29, 11 U. S. Stat. at L., 55. Burge lays down the rule, that: The parties are excused from conforming to the lex loci contractus, if they belong to a State, the subjects of which form a separate and distinct community in the foreign country in which they are married, as in the case of the British factories established in various parts of Europe and Asia; or if they belong to the State which has taken hostile possession and is in the occupation of the foreign country; or if they belong to the State whose ambassador is established in the foreign country. In these instances the parties may celebrate their marriage according to the law of their own country. Burge on Foreign and Colonial Law, I., p. 200. Criminal offences. 552. A marriage, though valid according to the law of the place where it is contracted, will not be recognized as valid in any country in which the circumstances of such marriage would render the personal relation between the parties a crime. Evasion of home law. 553. The act of persons contracting marriage in a nation in which they are not domiciled, in evasion of the law of the nation or domicil of either, may be made a criminal offence, but the validity of the marriage, if consummated, and the legitimacy of its issue, shall not be affected thereby. There is not wanting sanction for the opinion that such a marriage is void. But Westlake, (Private Intern. Law, p. 323,) forcibly points out the. embarrassment resulting from making the validity of a marriage depend on so uncertain an element as the opinion a court may form as to the motive of a journey. Personal, marital and parental rights. 554. Except as otherwise provided by this Code,' the personal, marital and parental obligations and corre lative rights of the parties to a marriage at any time, are governed exclusively by the law of the place where they may be, unless polygamy there exists. This depends on the principle that it is within the jurisdiction of any State to regulate the personal relations of all persons within its limits. When married parties go from one jurisdiction to another, their marriage status assumes the peculiar hue, which the law of the place, where they temporarily or permanently are, gives to it. Bishop on Marriage and Divorce, § 407. 1. See Chapter XXI., on DOMICIL, ORIGINAL AND SECONDARY. Polygamy. 555. A polygamous union, though contracted in a polygamous nation, does not sanction the cohabitation or the divorce, of the parties, in any other nation;' but the obligations and restrictions in other respects resulting from marriage, and the rights of property dependent thereon, may be recognized by any nation as applicable to the parties to such a union, in cases within its jurisdiction." 1 Hyde v. Hyde, 35 Law Journal, (N. S.,) Divorce Cases, 57. 2 It is submitted that, for the purpose of such obligations, toward the public, as arise out of the relation, a polygamous marriage should be recognized. For instance, it should preclude the polygamist from contract. ing a subsequent marriage, during the life of any existing consort; it should not exonerate him from the obligations arising out of the relation of parent and child. It seems proper, too, that on the question of the succession to foreign assets, it should be considered as part of the law of the polygamous nation, whenever that law comes in to regulate the succession. Legitimacy. 556. The legitimacy or illegitimacy of a person, as deduced from the law of the place where a marriage of the parents was contracted, is a personal attribute, and does not affect the succession to immovables situated in any other country, which would not recognize the person as legitimate, if the marriage had been contracted in such country at the time when it was actually contracted. Story, (Confl. of L., § 93 b, &c.,) regards it as generally admitted by foreign jurists, that, as the validity of the marriage must depend upon the law of the country where it is celebrated, the status, or condition of their offspring as to legitimacy or illegitimacy, ought to depend on the same law, especially if the parents were domiciled there; and there would be some authority for extending this rule to control the succession to real property in foreign States. According to Savigny, the laws of the place, where the birth of a child born out of wedlock actually takes place, exclusively determine whether he can be legitimated by subsequent marriage. Savigny, p. 257. Schaeffner. See also, Story, Confl. of L., & 93, s. But a legitimation of a subject by the rescript of his sovereign, if effectual according to the laws of the country where the person legitimated has his domicil, has the same virtue everywhere. Savigny, p. 258. CHAPTER XL. GUARDIANSHIP AND MENTAL ALIENATION. ARTICLE 557. Natural and testamentary guardians. 559. Sanity. Natural and testamentary guardians. 557. The natural guardianship of a father or mother1 over the person of a child, and testamentary guardianship,' acquired or conferred according to the law of one nation must be recognized in every other nation; subject to the power of the courts to interfere in the cases prescribed in Article 634. By the law of some States, the natural guardianship of the mother is recognized, upon the death of the father, and this Article accordingly provides for the mother's right. 2 Testamentary guardianship is also included in this Article, because it stands in the place of natural guardianship. Westlake, (Private Intern. Law, p. 380,) however, is of opinion that testamentary guardianship depends on the same principle as judicial or statutory guardianship. Judicially appointed guardians. 558. The guardianship or other custody of the person or property of one not having legal capacity, created by a foreign court of competent jurisdiction, in the cases provided in Article 633, must be recognized and respected by courts of any other country into which the ward comes, subject to the power of the courts to interfere in the cases prescribed in Article 634. This provision is founded on the decisions in Nugent v. Vetzera, Law Rep., 2 Equity, 704; and Townsend v. Kendall, 4 Minnesota Rep., 412, extending it to other cases than that of infancy. In the first mentioned decision Vice-Chancellor WOOD says: "Having regard to the present international law and to the course which all courts have taken, recognizing the proceedings of the regularly constituted tribunals of all civilized communities, and especially of those in amicable connection with this country, it is impossible for me entirely to disregard the appointment of a guardian by an Austrian court over these children, who are Austrian subjects and children of an Austrian father, merely because those who preceded the defendant in his guardianship have taken the course of sending them over to this country for the purpose of educating them, seeing that he is now desirous of revoking that arrangement. It would be contrary to all principles of right and justice if the court were to hold that where a parent or guardian in a foreign country, avails himself of the opportunities for education afforded by this country and sends his children over here, he must do it at the risk of never being able to recall them, because this court might be of opinion that an English grade of education is better than that adopted in the country to which they belong." And in this case an order appointing English guardians was declared to be without prejudice to the foreign appointment; and that the foreign guardian as such should have the exclusive right to the custody and control of the infants, with liberty to apply for the removal of the children from the country. In the case of Townsend v. Kendall, above referred to, the court say: That it would lead to great inconvenience if it should be held that a guardian could not exercise his authority or be recognized out of the state, or locality of his appointment. It would embarrass the guardian in investing the funds of the ward in securities of other states, and render it necessary that he should be reappointed in every state or country through which he should pass with his ward in travelling, if an emergency should arise in which it became necessary to exert his authority. The court add, (referring to Story, Confl. of L., §§ 495–507), “ From a very careful examination of all he says, and the cases to which he refers, which have been attainable, we think the better rule is, upon principle and authority, to recognize the foreign appointment of a guardian, as creating that relation between the parties in this State, subject, of course, to the laws of this State, as to any exercise of power by virtue of such relation either as to the person or property of the ward. Provision has been made by the statutes of this State for the manner in which foreign guardians shall act when they desire to sell the real property of their ward situated within this State. (Comp. Statutes, p. 423, §§ 43, 44.) All that is necessary to obtain full recognition as guardian, is to file an authenticated copy of the foreign appointment in the Court of Probate of the country where the land is situated, and the foreign guardian is at once admitted to the same rights and powers over the real estate of his ward situated within the country, that are possessed by a guardian of our own appointment." Consult also, Westlake, Private Intern. Law, p. 380; and Johnstone v. Beattie, 10 Clark & Finnelly's Rep., 114. |