contracted under the same lex loci, has a very manifest appearance of unsoundness with regard to marriages contracted under another law. to dissolve As a matter of fact, however, the decisions of the English Courts support neither proposition. English law recognises neither the indissolubility of an English marriage by foreign Courts, nor the indissolubility of foreign marriages by the English Courts; the key to the jurisdiction in both cases, to the Jurisdiction foreign jurisdiction recognised, and the English jurisdiction marriages depends on exercised, is the matrimonial home. The strict application of matrimonial the law of the domicil has been cut away in both cases; recog- home. nition of a foreign sentence of divorce in the case of an English marriage being accorded when the Court's jurisdiction, though founded on residence rather than strict domicil, is founded in good faith; jurisdiction to grant a divorce in the case of a foreign marriage being assumed by the English Court when there was continuous residence, but owing to a fiction of law no possibility of domicil. So English law, at least with regard to sentences of divorce, does not regard the place of the marriage, but merely the place of the matrimonial home. This seems to cut away the plausible argument which locus regit actum supplies. That maxim implies also this, that the interpretation of the contract must be governed by the law of the place where it was made; and it might be said that a marriage contracted under an Eastern law had an implied term that it should be dissoluble by that law. But this would again have to be limited by locus regit actum; the dissolution would have to be effected in the country where it was had. The speedy method of ending the marriage could not be resorted to in this country, at least if the husband were English, for locus regit actum. The same argument might be applied to a German marriage; it is part of the contract that it should be dissoluble on the ground of incompatibility of temper, and yet nothing is more certain than that the English Court would not entertain such a question if it had jurisdiction over the parties to a German marriage, though between German subjects. In the same way, [One, that is if the English Court had jurisdiction over an Oriental marriage by reason of the matrimonial home being in England, it would to say, not subject to a law of polygamy.] Probably the v. Hyde applies to native marriages, subject to divorce by consent; dissolve the marriage for grounds known to English law alone, though those grounds were unknown to the Oriental law; and conversely, it would not dissolve the marriage for grounds known to that law, but not to English law. And further the judgment of Lord Justice James in Niboyet v. Niboyet would seem to show that the Court's jurisdiction is, not merely to grant divorce or separation, but over the marriage. If this be so, then, even in the case of two Orientals whose matrimonial home is England, the Divorce Court has jurisdiction over the marriage, and a divorce in conformity with Oriental law, and without the intervention of the Court, would not be recognised. It is unnecessary to follow out all the consequences of this principle if it be sound. It is possible however that a marriage contracted under a law rule in Hyde which permits dissolution by consent comes within the principle of the Mormon case, and would not be recognised by the Courts which administer the matrimonial law of England. One of the terms of the definition which was given of marriage as understood in Christendom was that it should be a "union for life." More accurately it should be, a "union for life dissoluble only by decree of a Court by way of punishment for certain marital offences." If this be so, then many of the difficulties would be removed, for the marriages, divorces, and remarriages of Easterns under such a law would not come within the purview of the matrimonial Courts in England. and to domiciled Englishmen. If marriage recognised, then divorce recognised. And further, the case with regard to domiciled Englishmen who had contracted such marriages would fall within the principle already deduced; the marriage being based on a principle not recognised by the law of the domicil would not be recognised for any purposes. The question of recognising the divorce would therefore not arise. This principle, it is to be remarked, covers foreigners as well as English subjects. But in cases which do not fall within this principle, that is to say where the domicil is in the State which sanctions such marriages, then both the marriage and the divorce would be recognised for all purposes outside the matrimonial law. Precisely the same arguments hold good with regard to infant marriages. And with regard to Oriental countries and the difficult question of domicil, the same position results as in the case of marriages subject to polygamy or concubinage. result. The general result seems to be that the question of domicil General does not arise except where the Christian law, should the domicil be in a Christian country, imposes impediments either to the actual fact of the marriage, as in the case of incest, infant marriages, or to the second of a series of polygamous marriages; or to the principle on which the marriage rests, as in the case of the first of a polygamous series, though there be no second marriage; or that it is dissoluble at will, though in fact the marriage be undissolved, and although the State demands some official confirmation of the dissolution. lex loci countries. Where there is no such impediment in an Oriental country, Rule of the a marriage according to the lex loci between an English subject applicable to and a subject of the country will be considered valid for all Oriental purposes, although the ceremonies involve no ecclesiastical ceremonial, and although the domicil be English. This was decided in Brinkley's case. ante, p. 162. And further, the fundamental rule as to marriage being that it ought to conform to the lex loci, the Consular marriage law, and the marriage by the law of England being merely permissive and not compulsory, the same rule applies to marriages between two British subjects, although both are domiciled in England. But among an exterritorial community what is the What is the lex loci? Is it the national law, or the English law introduced exterritorial by the Order in Council? lex loci where Treaty exists? Here, again, we must go back to first principles. When it is said that a certain act must conform to the law of the place where it is done, it means the law of the place applicable to the actor. Now in an Oriental country the law of the place as it affects British subjects between themselves is the law of England. As we have already seen, the consequence of this Marriages is that as between themselves British subjects must conform British their conduct to English law. Therefore, with regard to two subjects to conform to British subjects residing in an Oriental country, the lex loci English law. to which the ceremonies of their marriage must conform is the between two Mixed marriages. law of England, and a marriage according to the native customs would be invalid. With regard to mixed marriages the question is more complicated, because, as we have already seen, no regular rule of conduct can be laid down, the law governing any case which cf. ante, p. 97. arises depending on the nationality of the defendant. This point will be more fully considered when we come to consider the law applicable to contracts. The lex loci is probably either native or English law. ADOPTION. Principles of recognition, dependent on domicil of In its application to marriages the point was not argued in Brinkley v. The Attorney General, it being assumed in that case that the lex loci was the law of Japan. It would seem more reasonable that the doubt should be resolved in this way; though it is probable that a marriage by the law of England would also be valid. The last point which arises in this connection is the recognition of adoption. As a general principle, the recognition of adopted children may be put upon a par with the recognition of children legitimated by subsequent marriage; and as to this the law is clear. The legitimation is recognised if it is sanctioned by the law of the domicil at the time of the child's birth-recognised, that is, for all purposes, with a possible exception only as to succession to real estate in England. The law of the domicil is to govern the question, and this both parties. probably would be construed to mean, in the case of adoption, the domicil both of the person adopting and of the person adopted. Adopted children of natives. Of English subjects. Adopted children of native Orientals will be recognised as such by the English Courts, and all questions as to their rights will be determined by the law of their nation. With regard to adoption by English subjects, it is impossible so long as the adopter retains his English domicil: it is possible when he has acquired a domicil in a country whose laws allow it. But in Oriental countries the domicil of British subjects is never national, and no question of adoption can therefore arise. * Law Reports, 15 Probate Division, 76. Further, by English law the wife's nationality and domicil Adoption by follow her husband's. An adoption by her, though valid by the native wife. native law, would probably not be recognised in England, even though by the native law the woman did not lose her nationality by her marriage. XVI. The Effect of Foreign Jurisdiction on Companies, and on the Law of Contracts and of Torts. THERE still remain to be considered some minor points which are affected by the application of English law to the English community in an Oriental country. English law. First, with regard to the formation of companies by English- English companies men for carrying on business in the country. In considering to formed in what law they ought to conform, it seems clear that we ought Treaty Ports, again to go back to the first principles of the Treaty. The only warrant for the assumption that English law governs the company and the shareholders is the fact that all disputes between British subjects are to be decided by the English authorities, and hence by English law. The reason why English law governs companies is, therefore, that any disputes arising in connection governed by with any company would have to be determined by English law. For example, certain contracts are required to be set out in the prospectus of an English company: a prospectus of a company formed in Shanghai which did not disclose these contracts would be clearly fraudulent in accordance with the current of English cases. So, too, such a company would be wound up under the provisions of the Companies' Acts, and calls recovered from contributories by the procedure laid down in them. Above all, it seems possible that such an association of British subjects should be entitled to obtain the privilege of limited liability; because here is a direct question which may be disputed between British subjects, and is put within the juris N |