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term of three years to dispose of the same and withdraw and export the proceeds, which they may do without paying any other dues or charges than those which are established by the laws of the country." (United States Statutes at Large, vol. X, p. 933.)

(19) The Treaty with the Argentine Confederation, July 27, 1853, Art. IX, contains the following clause: "In whatever relates to the police of the ports, the lading and unlading of ships, the safety of the merchandise, goods, and effects, and to the acquiring and disposing of property of every sort and denomination, either by sale, donation, exchange, testament, or in any other manner whatsoever, as also to the administration of justice, the citizens of the two contracting parties shall reciprocally enjoy the same privileges, liberties, and rights, as native citizens." (United States Statutes at Large, vol. X, p. 1009.)

(20) The Treaty with Bolivia, May 13, 1858, Art. XII, provides : "And if, in the case of real estate, the said heirs would be prevented from entering into the possession of the inheritance on account of their character of aliens, there shall be granted to them the longest period allowed by the law to dispose of the same as they may think proper, and to withdraw the proceeds without molestation, nor any other charges than those which are imposed by the laws of the country. (United States Treaties, 1860-3, p. 298.)

(21) The Treaty with Nicaragua, June 21, 1867, United States Statutes at Large, vol. XV, p. 554, besides providing Art. VIII, in case of real estate falling to a citizen of the other party, who, on account of his being an alien, could not be permitted to hold such property, there shall be accorded "to the said heir or other successor," such time as the laws of the State will permit to sell such property, stipulated by Article IX, that "the citizens of the United States residing in Nicaragua, or the citizens of Nicaragua residing in the United States, may intermarry with the natives of the country, hold and possess by purchase, marriage, or descent, any estate, real or personal, without thereby changing their national character, subject to the laws which now exist or may be enacted in this respect,


(From the London Law Magazine, May, 1870.)



MARRIAGE, according to Grotius and Blackstone, was always a matter juris gentium, and with the intercourse now existing between the different portions of the civilized world, and especially between the people of a common descent on the two sides of the Atlantic, every incident connected with it is of general interest. And no citizen of any country marrying abroad or coming to reside abroad after marriage can well know to what extent the laws of other countries on this subject may not be applicable to him.

Important, however, as the protection of the rights of property of married women is, the questions which concern her matrimonial status are of paramount consideration. Marriage, though a contract, is a contract sui generis, and among its peculiarities is that it is impossible by rescinding it, after it has been once consummated, to restore one of the parties to the condition which existed before the contract was entered into. The Common Law of Europe, and which is still the law of Scotland, by regarding every promise of marriage made between persons of the age of puberty, followed by consummation, as constituting an irrevocable contract, protected the feebler sex against the stronger, and was the ægis of woman's honor.

*The above is an authentic report of the speech made by Mr. Lawrence, in the discussion on the Married Women's Property Bill, at the Bristol Congress of the Social Science Association in October last. The speech has not been reported elsewhere. (Ed. Law. Mag.)

The decision rendered by your House of Lords in 1843, declaring the presence of a person ordained by a bishop to have been essential by the Common Law of England to the validity of a marriage, it is unnecessary to say, created the most profound amazement in the United States. As our law of marriage has no other basis than the law of England as it existed before the time of Lord Hardwicke's Act, if the interposition of a clergyman ordained by a bishop was necessary with you, it could not, in the absence of any statutory regulations, have been less obligatory with us.

It is unnecessary, however, to inquire as to the soundness of the decision in the Queen v. Millis, rendered by a divided vote of the House of Lords, and against which the eminent judge of the Ecclesiastical Court, Dr. Lushington, on the earliest occasion, so earnestly protested. Neither the necessity of the solemnization by a priest, as contended for by the English Common Law judges, nor the decree of the Council of Trent requiring the presence of the curate and two witnesses to the verification of a marriage between Catholics, impose any additional restrictions on the parties in the contracting of marriage. On the contrary, the Council of Trent, whose professed object it was to establish a system which would prevent for the future scandals arising from the repudiation, by persons belonging to the Church, of clandestine marriages of which the proofs were wanting, refused to declare invalid marriages contracted without the ecclesiastical benediction. At the same time they anathematized all who should say that the marriage of children without the consent of their parents was null.

Constituted as human nature is, every restriction on marriage must operate to induce illicit connections, and such connections, as a general rule, must be based on a sacrifice of the middle and lower classes to the licentiousness of the higher. As it was well expressed by Sir James Mackintosh, the whole legislation of Europe on the subject of marriage has been a contest of patrimony against matrimony, though, viewed in this light, it is not a little extraordinary that the authors of the Code Napoleon, who had just proclaimed the equality of all citizens, should have referred as an authority for their articles on marriage to the edict of Henry II, of 1556, and to the ordinance of Louis XIII, which were professedly intended to prevent mésalliances. If the object of the Code had been to make lawful marriage an exceptional institution and concubinage the normal rule, no more effective enactments could well have been devised than the restrictions which it im

poses. The provisions of the Roman law as to parental authority are exaggerated, and while the criminal condemned to the "travaux forces" is deprived of all other civil rights, he retains an absolute veto over the marriage of his children to an age beyond that of legal majority for other purposes, and is entitled to actes respectueux" from them at every age, the absence of which would expose the marriage to be nullified, and which in any event create unjustifiable delay.


The rule early introduced into Germany, which prohibited marriages of members of sovereign houses even with the higher nobility, extended, till modified by the improved legislation of the new confederacy, to all intermarriages between different classes of the community. The laws of many of the German States, more just than the French Code, seem to have contemplated the natural result of a system which imposed innumerable artificial impediments to marriage, and in the Codes of Prussia and Saxony the "Verlobniss" forms a separate chapter. Though such connections were terminable without legal proceedings, provision is made for the legitimacy of the children born under them, and in Prussia there is a complete Code respecting what the "Allgemeines Landrecht" terms marriages of the left hand.

In England legislation against mesalliances only goes back about a century. It dates from Lord Hardwicke's Act, as it was called, passed in 1753. For a long time previous, almost every year, bills to prevent clandestine marriages, that is to say, to protect the aristocracy against the improvident marriages of their prodigal heirs, passed the House of Lords but failed in the Commons. Lord Hardwicke's Act not only prohibited any suit before an Ecclesiastical Court to compel the celebration in facie ecclesiæ of a marriage contracted either per verba de presenti or per verba de futuro, but the rule as to the consent of parents, which the Canon Law had never required, was rigorously applied. Moreover, an omission of the minutest forms was utterly fatal. Unlike the French judges, who are vested with discretionary power in the case of the omission of the preliminary requirements of the Code to look at the motives, whether the object was clandestinity, or the omission of the formalities was accidental, the reports of the English Courts will show cases where marriages, which had lasted twenty-five years, and in one case nearly forty, were annulled after the birth of children, for omissions in the formalities prescribed for obtaining a license, though the license itself was perfectly regular, and no suggestion of clandestinity existed. In several cases the judges expressed their regret in being compelled to adjudicate according to the letter of

the law, nor was it till 1822 that Lord Hardwicke's Act received any modification. Many of the most stringent provisions of that law no longer exist, but under the Acts of 4 Geo. IV. c. 76 (1823), & 6 and 7 Will. IV. c. 85 (1836), which constitute the present marriage laws of England, though a marriage is not invalid because a license is issued under a wrong name, any mistake of name, however slight, renders void a marriage celebrated after the publication of banns.

It is said, in the report of the Royal Commission made last year, that in all these forms of English marriages, the marriage may be invalidated by a non-compliance with any of the requirements of the law. For instance, if the place where the marriage is celebrated is not properly consecrated or set apart, or if the marriage is effected in some other locality than where the banns have been called, or if any other error affecting time or place is made by the parties, that entirely invalidates the marriage, although, upon other grounds, there may be no objections whatever to it.

I will not dilate further on what may be deemed only matter introductory to the subject of the present discussion. Accustomed to the jurisprudence of a country where no formal ceremony, civil or religious, is requisite to constitute a valid marriage, and every intendment is made in favor of legitimacy, it is difficult for me to comprehend a system of legislation which, for the mere object, moreover usually ineffectual, of preventing improvident marriages of spendthrift heirs, would sacrifice female virtue to family pride. It was, indeed, with no little astonishment that I read the following remarks, made in a debate of the House of Commons during the last session of Parliament: "Suppose," it was said, "any gentleman in this House visited at a house in Scotland where a young lady happened to be staying and that he and the young lady took a walk together, and, in the course of the walk, he took a piece of paper out of his pocket, on which they wrote down a mutual promise to marry, though the piece of paper might be simply put back again into his pocket, and though nobody might be there at the time, and if the persons afterwards lived in a certain way together, that would be a valid marriage, although nobody might know of the fact of the marriage for years afterwards." It seems to me that, so far from this statement aiding the cause for which it was intended, it conclusively establishes the propriety of the Scotch law of marriage. I am very sure that there is no tribunal in my country that would not, under the facts as stated, pronounce the sentence of a valid marriage; nor is there a legislature in any State

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