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of America which would enact such a system of marriage laws as would enable the parties, if they desired it, to escape from the relation thus contracted, whether or not it was evidenced either by a priest or civil officer.

Having alluded to the English law of marriage, I ought not to leave this branch of my subject without referring to the recommendations of the Royal Commission. Though, for the reasons incidentally suggested, I cannot but think that the rights of the weaker sex require the return, pure and simple, to the old common law, very much I believe would be gained by providing, as is proposed, that no marriage celebrated by a minister of religion duly authorized, or by a civil officer, shall be declared void, for a non-observance of the conditions prescribed for the prevention of clandestine, illegal marriages; and that the preliminary conditions relative to residence, consent of parents, declarations required from the parties, shall only be directory.

Where marriages take place in foreign countries, and especially between persons of different nationalities, important questions of international law present themselves, about which the jurisprudence of England and America is not in accordance with that of the continent. While all agree that the 'law of the place of celebration must be observed, the French and other countries, where the rule of the personal status prevails, subject their citizens to their own laws, when contracting marriage abroad. Frenchmen, who have not lost their nationality, have two conditions to perform: they must make the publications in their commune, and obtain the consent of their parents. Neither the English nor American laws pays any regard to these exterritorial requirements; and the consequence is, that cases exist where parties have been validly married in England or the United States, whose marriages are deemed null in their own country.

The impediments thrown in the way of marriages abroad have induced the passage of Acts of Parliament, authorizing marriages at embassies and consulates, the validity of which, as derogating from the sovereignty of the country where they are solemnized, is considered by the Royal Commission as doubtful.* It would seem that

* [The marriages at foreign legations were emphatically repudiated by Mr. Cass when Secretary of State, in an instruction of November 12, 1860. "It has been remarked," he says, that this power is a consequence of exterritoriality. But while this principle of exemption from the government of the country, where a

this is a matter which requires a conventional arrangement, and so far as the United States and England are respectively concerned, it naturally falls within the scope of legislation required by the arrangements recently entered into by them, in regard to naturalization and its incidents.

Though publicists are pretty generally agreed that it is the law of the husband's domicile or the matrimonial domicile, and not the law of the place of the celebration of the marriage, which, in the absence of any express contract, is to govern the respective rights of the parties, at least as to personal property, there is no general accordance between them as to the effect of a change of domicile after marriage.

In Story's time, it would appear that no case had arisen in the English courts upon the point, as to what rule ought to govern in cases of matrimonial property where there is no express nuptial contract, and there had been a change of domicile. He refers to a case (Sawer v. Shute, 1 Anstr. 63) where the Court of Chancery adopted the law of the actual domicile, though to the prejudice of the equitable provision which that tribunal was in the habit of making in favor of married women domiciled in England.

The actual domicile is the law of Louisiana now confirmed by statute, as to all property acquired after removal into the State. And Judge Redfield, the commentator of Story, contends for it as the suitable rule in all cases. He admits, however, that the Court of Appeals of New York, by a divided vote, had decided otherwise, holding that the rights of property between married persons continue to be governed, notwithstanding a change of domicile, by the law of the place where the marriage was celebrated, and which was also at the time the

foreign minister is accredited, protects his person and his domicile from all interruption, I do not consider that it necessarily carries with it the power to exercise any authority, civil or criminal. I do not consider that an obligation contracted at the residence of the Minister of the United States, at Paris, contrary to the laws of France, can become valid, when the parties are found in the United States. The utmost extent to which this principle of exterritoriality can properly be carried, cannot confer upon a foreign minister an authority not necessarily incident to his official functions, or which is not granted to him by some law of his own country." (Lawrence's Wheaton, p. 399, note 133.) Mr. Cass' instruction, as given above, is also inserted substantially in the spurious edition of Wheaton, by Dana, p. 303, note 128. See also, on this subject, Lawrence's Etude de droit international sur le mariage, pp. 82-83; Article in the American Law Review, January, 1860, vol. II, pp. 218, &c., by Merrill.]

place of the domicile of the husband. This is in accordance with the French rule.

There are two systems of law applicable, on the continent of Europe, to the rights of married persons, in neither of which is the individuality of the wife suppressed, as by the English Common Law, and though in many cases the husband exercises the administration during marriage, the wife's rights of property under one form or other are retained, and the law affords her protection against the improvidence of the husband.

On the continent, where the question of woman's right to property arises, it is necessary to decide between the dotal regime, which is sometimes purely Roman, and sometimes undergoes very extensive modifications, and the community of goods which is of German origin, and which also exists under various forms. Nowhere are these systems obligatory, except in the absence of express contracts, which in some countries may be made even after marriage. The right to such marriage contracts is entirely in accordance with the express terms of the law, and not, as in England and America, in apparent evasion of it.

By the Roman law, on which the modern dotal system is founded, the husband had the sole management of the dowry given by the father to a daughter on the occasion of her marriage, but, as a general rule, the husband's right to it ceased at the dissolution of the marriage, and it was restored to the wife or her family. Moreover, the constitution of a dowry was in no wise essential to the validity of the marriage, and all the property not comprehended in the dowry was paraphernal, of which the wife remained proprietor and over which the husband possessed no rights. By the French law there is the most entire liberty of arranging the interests of the parties by contract, subject only to the condition that it shall not interfere with the general policy of France, and particularly as respects the law of succession. No provision can be made favoring primogeniture or affecting the equality of descent among children. Not only may special stipulations be made, but the parties may in general declare whether they will marry under the law of community, the law of dowry (the general features of which, as they existed in the Roman law, we have described), or the law of separation of property, the Code providing the consequences to result from the adoption of any one of these systems.

Nor is it necessary to adopt one of them in its entirety, but they

may be modified or blended to suit the views of the parties. In the absence, however, of any declaration, the law of community, which may therefore be deemed the Common Law of France, governs. "Under this law, the husband and wife become joint owners of all the personal property which they possess at the time of the marriage, as well as of all such property as they may acquire during the marriage, by succession, or even by gift, unless the donor express the contrary. They are also joint owners of all the real property purchased during the marriage; but such real property as is acquired by succession or gift, unless the donor declares otherwise, does not fall into the community. The husband has the sole management of the property of the community, and may sell or charge it without the concurrence of the wife; he has also the management of all the property of the wife which is excluded from the community, but he cannot alienate such of her real property as is excluded, without her consent; nor can he alienate by will the property that is included, beyond the share of it to which he will be entitled on the dissolution of the community. At the death of either of the parties, an account is taken of the properties and of the liabilities of the community, and the surplus is divided equally between the survivor and the representatives of the deceased."

Under the dotal system, "the husband has, during the marriage, the management of all the property in dowry, but he cannot, either alone or conjointly with the wife, alienate or charge any of the real property, unless provision has been made for this purpose in the marriage contract. The wife may, however, under certain conditions, make provisions thereout for the children of the marriage, or of a former marriage, and the Court will also permit the property in dowry to be sold, in certain cases, such as for releasing the husband from prison, &c. The wife has the management and enjoyment of such part of her property as has not been settled in dowry, but she cannot alienate nor sue, in respect to this property, without the consent of her husband; or, in the event of his refusal, without the permission of the Court."

Where the parties stipulate by their marriage contract that they will be separate in property, the wife retains the entire management and enjoyment of her property, both real and personal. Each of the parties contribute towards the expenses according to the terms of the contract; if it is silent in this respect, the wife contributes a third of her income, though the Court may, in certain cases, order a larger contribution. The wife cannot, by virtue of any stipulation, alienate

her real property without the special consent of her husband, or of the Court, in case of his refusal; and any general authority for this purpose given to the wife, either by the marriage contract or subsequently, is void. The community may be confined to mere gains, leaving each party his own property, or there may be universal community which will include real estate as well as personal. The mere declaration that the parties marry without community does not constitute the separation of property, so called, in which last case, as we have seen, the wife has the separate control of her property in all respects, except that she cannot dispose of any real estate without her husband's consent. In a marriage declared to be without community, the wife has not the right of administering her property, or receiving the income, which goes to the husband to support the expenses of the marriage; the husband retains the administration of the property, movable and immovable, during his life, with the right of receiving all the personal property brought as her dot, or which accrues to her during marriage, subject to the restoration after the dissolution of the marriage or judgment of separation of goods.

In the Spanish law the community is confined to the acquests, and each party retains his or her own property, and is liable for his or her own debts. However, where there is no inventory made at the time of the marriage, and there is no other means of distinguishing what belongs to each party, the movables are considered as acquests, and subject to the rule of the community. If under the Spanish law the woman renounces the community before the celebration of the marriage, she is married under a rule equivalent to the rule of the separation of property and not of the French regime without community. The Spanish jurisprudence admits of a system similar to the French regime without community, i. e., a regime in which the wife has neither the advantages of community, nor those of the separation of property. But for this purpose it is requisite that such a regime be expressly stipulated in the marriage contract. The following are its consequences upon property. The wife has no share in the acquests, neither has she the administration of her separate property, whilst in the absence of such stipulation she would retain that administration, as in the French system of separation of property.

The wife's dowry may be given her either by her parents or by third parties, and either before or during coverture. Parents are bound to furnish a dowry equal to the "legitime" (the portion the party would by law be entitled to in the parents' fortune in case of

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