solemnities in arts. 63, 64, 74, of the code Napoleon, would be absolutely null and void. Mr. Justice Story, in his Com. on the Conflict of Laws, § 124, justly questions the wisdom of these stern and unrelenting rules of the French code.

The incidents to marriage respecting rights and property under the operation and collision of foreign and domestic law, have been a fruitful source of discussion among foreign jurists. Their refinements and speculations have been examined by Mr. Justice Story, (Com. on the Conflict of Laws, ch. 6,) and he draws the following conclusions from a survey of the writings and cases, foreign and domestic, relating to the subject: (1.) That where there is marriage in a foreign country, and an express nuptial contract concerning personal property, it will be sustained everywhere, unless it contravenes some positive rule of law or policy. But as to real property, it will be made subservient to the lex rei sita. (2.) Where such a contract applies to personal property, and there is a change afterwards of the matrimonial domicil, the law of the actual domicil will govern as to future acquisitions. (3.) If there be no such contract, the matrimonial domicil governs all the personal property everywhere, but not the real property. (4.) The matrimonial domicil governs as to all acquisitions, present and future, if there be no change of domicil. (5.) If there be, then the law of the actual domicil will govern as to future acquisitions, and the law, rei sita as to real property. Story's Com. on the Conflict of Laws, § 184-187. The English law, according to Lord Eldon, (Lashley v. Hogg, cited in Robertson's Appeal Cases, p. 4. Selkrig v. Davies, 2 Rose, Bank Cases, p. 99,) is, that if there be no special contract, the law of the actual domicil, at the dissolution of the marriage, governs as to all the property, whether acquired before or after the change of the matrimonial domicil. But if there was no change of the matrimonial domicil, the law of that domicil governed the personal property, wherever acquired and wherever situated. This is also the law in Louisiana. Saul v. His Creditors, 17 Martin's Rep. (5 N. S.) 569, 603-5; and it is a principle which best harmonizes with the analogies of the common law. Story's Com. § 171, et seq. The foreign jurists do not generally agree to these conclusions, but they insist that the change of domicil after marriage does not change the law of the matrimonial domicil, as to past or future acquisitions. (Story's Com. § 160-170. But it is agreed that nuptial contracts follow the parties into foreign countries, and bind them. Murphy v. Murphy, 5 Martin's Rep. 83. Decouche v. Savetier, 3 Johns. Ch. Rep. 190. Story's Com. § 189. If, however, the marriage takes place in a foreign country in transitu, and where the parties had no intention of fixing their domicil, the law of the actual or intended domicil of the parties governs the case as to the incidents of marriage; and it is the general rule, that if the husband and wife had different domicils when they married, the domicil of the husband became the true and only matrimonial domicil. Le Breton v. Nouchet, 3 Martin's Rep. 60. Ford's Curator v. Ford, 14 Ibid. 574. This is the opinion of all the foreign jurists. Story's Com. § 191-199.

LECTURE XXVII.

OF THE LAW CONCERNING DIVORCE.

WHEN a marriage is duly made, it becomes of perpetual obligation, and cannot be renounced at the pleasure of either or both of the parties. It continues, until dissolved by the death of one of the parties, or by divorce.

(1.) Of Divorce a vinculo.

By the ecclesiastical law, a marriage may be dissolved and declared void ab initio, for canonical causes of impediment, existing previous to the marriage. Divorces a vinculo matrimonii, said Lord Coke, (a) are causa præcontractus, causa metus, causa impotentiæ seu frigiditatis, causa affinitatis, causa consanguinitatis. We have seen how far a marriage may be adjudged void, as being procured by fear or fraud, or contracted within the forbidden degrees. The courts in Massachusetts, Delaware, Ohio, North Carolina, Alabama, Illinois, and probably in other states, are authorized by statute to grant divorces causa impotentiæ; and in Connecticut, imbecility has been declared sufficient to dissolve a marriage, on the ground of fraud. (b) The canonical disabilities, such as consanguinity, and affinity, and corporeal infirmity, existing prior to the marriage, render it voidable only, and such marriages are valid for all civil purposes, unless sentence of nullity be declared in the lifetime of the parties; and it cannot be declared void for those causes after the death of either party. (c) But the civil disabilities, such as a *96 prior marriage or idiocy, make the contract void, ab initio, and the union meretricious. (d) In New York it was adjudged,

(a) Co. Litt. 235, a.

(b) Benton v. Benton, 1 Day's Rep. 111. Dane's Abr. of American Law, ch. 46, art. 9, sec. 14. Revised Laws of Illinois, 1833.

(c) 1 Blacks. Com. 434, 435. Bury's case, 5 Co. 98, b. 2 Phill. Rep. 19.

(d) Elliott v. Gurr, 2 Phillimore's Rep. 16. Rex v. Inhabitants of Wroxton, 4 Bar.

in Burtis v. Burtis, (a) that corporeal impotence was not, under the existing laws, a cause of divorce, and that the English law of divorce on that point had never been adopted. The new French code will not allow such an allegation by the husband; (b) and Toullier (c) condemns a decree of divorce, causa impotentiæ, which was pronounced in France, in 1808, as contrary to the spirit of the code, and leading to scandalous inquiry. Since the New York decision above mentioned, the jurisdiction of the Court of Chancery on this subject has been enlarged, and the New York Revised Statutes have authorized the chancellor, on a suit before him by bill, to declare void the marriage contract; 1. If either of the parties, at the time of the marriage, had not attained the age of legal consent. 2. If the former husband or wife of the party was living, and the marriage in force. 3. If one of the parties was an idiot or lunatic. 4. If the consent of one of the parties was obtained by force or fraud. 5. If one of the parties was physically incapable of entering into the marriage state. All issues All issues upon the legality of a mar

& Adolph. 640. By the Massachusetts Revised Statutes, 1836, p. 479, all marriages prohibited by law on account of consanguinity or affinity, or when the former wife or husband is living, or when either party was at the time insane, or an idiot, or between a white person and a negro, Indian or mulatto, are declared to be absolutely void, without a decree of divorce, or other legal process; though, if the case be doubtful in point of fact, a libel for divorce may be filed and prosecuted. So, if persons marry under the age of consent, and separate during such non-age, and do not cohabit afterwards, the marriage is void without any decree of divorce. Divorce a vinculo may be decreed for adultery or impotency in either party, or when either is sentenced to confinement in the state prison. The issue of any marriage declared null by decree, on account of consanguinity or affinity, or of any marriage between a white person and a negro, Indian or mulatto, are to be deemed illegitimate. It is otherwise upon the dissolution of a marriage on account of non-age, insanity or idiocy. So the issue is also legitimate if the marriage be dissolved for bigamy, provided the second marriage was contracted in good faith, and with the full belief that the former husband or wife was dead. So, in Vermont, marriages prohibited by law, on account of consanguinity or affinity, or on account of a former wife or husband living, are absolutly void, without legal process or decree. A libel for the purpose may be filed in doubtful cases. If the marriage be declared void on account of consanguinity or affinity, the issue to be deemed illegitimate. See Revised Statutes of Vermont, 1839, p. 322; and I take the occasion to observe, that this new revised code of Vermont does credit to the learning, judgment, and taste with which it was prepared, digested, and published.

(a) 1 Hopkins's Rep. 557.

(b) Code Civil, art. 313.

(c) Droit Civil Française, tom. i. No. 525.

riage, except where it is sought to be annulled on the ground of the physical incapacity of one of the parties, are to be tried by a jury upon the award of a feigned issue. (a)

It is further provided, that a marriage shall not be annulled for the first cause above mentioned, on the application of a party who was of legal age at the time of the marriage, or if the parties, after they had attained the age of consent, had for any time freely cohabited as husband and wife. It may be annulled for the second cause on the application of either *party during the life of the other; but if it was con- *97 tracted in good faith, and with the full belief of the parties that the former husband or wife was dead, the issue thereof shall be entitled to succeed to the estate of the parent, equally as legitimate children. It may be annulled for the third cause, on the application of any relative of the idiot or lunatic interested to avoid the marriage, or by his next friend. But any free cohabitation of husband and wife after the lunacy has ceased, will be a bar to the divorce; and the children of a marriage annulled on the ground of lunacy or idiocy are entitled to succeed as legitimate children. A marriage may be annulled for the fourth cause above mentioned, during the life of the parties, on the application of the party whose consent was unduly obtained, provided there has been no subsequent voluntary cohabitation as husband and wife. The custody of the issue of such a marriage is to be given to the innocent parent, and a provision for their education and maintenance may be made out of the estate of the guilty party. A marriage is to be annulled for the fifth and last cause above mentioned, only on the application of the injured party, and the suit must be brought within two years from the solemnization of the marriage. (b)

These cases are all founded on the ground of the nullity of the marriage contract, for causes existing at the time it was formed; but there is one other case in which the marriage contract may be dissolved for a cause accruing subsequently.

(a) N. Y. Revised Statutes, vol. ii. 142, sec. 20. Ibid. 175, sec. 45. (6) N. Y. R. S. vol. ii. pp. 142, 143, sec. 21-33. The Revised Statutes of Vermont, 1839, pp. 322, 323, contain the same provisions as the New York statute relative to the above cases of divorce, and the jurisdiction is vested in the Supreme Court.

During the period of our colonial government, for more than one hundred years preceding the Revolution, no divorce took place in the colony of New York; and for many years after New York became an independent state, there was not any lawful mode of dissolving a marriage in the lifetime of the parties, but by a special act of the legislature. This strictness

was productive of public inconvenience, and often forced * 98 the parties, in cases which rendered a separation fit *and necessary, to some other state, to avail themselves of a more easy and certain remedy. At last the legislature, in 1787, authorized the court of chancery to pronounce divorces a vinculo, in the single case of adultery, upon a bill filed by the party aggrieved. As the law in New York now stands, a bill for a divorce for adultery, committed by either husband or wife, can be sustained in three cases only: (1.) If the married parties are inhabitants of the state at the time of the commission of the adultery; (2.) If the marriage took place in the state, and the party injured be an actual resident at the time of the adultery committed, and at the time of filing the bill; (3.) If the adul tery was committed in the state, and the injured party, at the time of filing the bill, be an actual inhabitant of the state. (a) If the defendant answers the bill, and denies the charge, a feigned issue is to be awarded, under the direction of the chancellor, to try the truth of the charge before a jury, in a court of law. Upon the trial of the issue, the fact must be sufficiently proved by testimony independent of the confession of the party; for, to guard against all kinds of improper influence, collusion and fraud, it is the general policy of the law on this subject not to proceed solely upon the ground of the confession of the party to a dissolution of the marriage contract. The rule that the confession of the party was not sufficient, unless supported by other proof, was derived from the canon law, and arose from

(a) New York Revised Statutes, vol. ii. p. 144, sec. 38, 39. It was adjudged, in New Jersey, in the case of The State v. Lash, 1 Harrison's Rep. 380, that a married man is not guilty of adultery, in having carnal connection with an unmarried woman. In Vermont, an act of that kind, between such parties, is punished by fine and imprisonment, as in cases of adultery. Revised Statutes of Vermont. 1839, p. 443. So in Tennessee, and in some of the other states, the living together by unmarried persons, in illicit connection, is an indictable offence.