interesting and learned monograph is chiefly devoted to the subject of marriage, which is discussed with reference to the law in Spain, France, Belgium, Holland, Italy, Germany, Austria, Hungary, and Switzerland. It also includes disquisitions on divorce under the French law, and the new code of the German Empire. Some or all of the papers embraced in the monograph may be found in French in Clunet's Journal du Droit Int. Privé, and other journals. See, also, Stocquart's Le Marriage en Droit Ecossais, Journal du Droit Int. Privé, 1902, pp. 746, 988. On June 12, 1902, three conventions were signed at The Hague, by plenipotentiaries of Austria, Belgium, France, Germany, Hungary, Italy, Luxemburg, the Netherlands, Portugal, Roumania, Sweden, and Switzerland, and were afterwards ratified by all the signatories except Austria and Hungary, Portugal, and Sweden, for the purpose of regulating (1) differences in the laws of marriage, (2) differences in the laws of divorce and separation, and (3) the guardianship of minors. For an English version of the conventions, see For. Rel. 1904, 526 et seq. For reports on the laws of marriage and divorce in various countries, see Since it is requisite to a valid marriage, viewed as an institution of civilization, that the union should be "exclusive and for life," the Department of State held that cohabitation of a citizen of the United States with a Samoan woman "fa'a Samoa" was not a sufficient contract of marriage, it appearing, by a consular report of 1874, that, according to the custom of the country, men practiced polygamy, although when a new wife was taken it was usual to send back the first one to her people. With regard to this ruling, the consul-general of the United States at Apia stated that in recent years polygamy had "steadily decreased," so that "consensual marriages exclusive and for life were far more common " than "the marriages purely fa a Samoa, which were polygamous alliances;" and that this change had "necessarily affected the customs of foreigners who have native wives." The Department replied that the question was "not one of the intention of the parties in this regard. It is whether by the law of the place the union is compulsory and not at the will of the parties. If by the Samoan law or custom a man and woman who cohabit with the intention of living together in exclusive union for life may, nevertheless, at any time freely separate and treat the union as at an end, the law or custom which permits this does not constitute such a mar H. Doc. 551—vol 2- -31 riage as is recognized by the laws of this country. Whatever may be the intention of the parties, such a union is, from a legal point of view, merely cohabitation at will and not of that permanent and exclusive character which American law demands." Mr. Rives, Assist. Sec. of State, to Mr. Sewall, cons. gen. at Apia, April 26 and July 19, 1888, S. Ex. Doc. 31, 50 Cong. 2d sess. 55, 102. See Mr. Sewall to Mr. Rives, June 18, 1888, id. 88. The question of the existence of a marriage between members of an Indian tribe is to be determined by the laws and customs of the tribe. Earl v. Godley, 42 Minn. 361, 44 N. W. 254. Where an Indian woman, then in the city of Chihuahua, Mexico, did not wish to return to her husband in the United States, it was stated that if they were married according to the laws of the United States the husband "could demand his wife through the medium of the courts of Mexico." Mr. Bayard, Sec. of State, to Mr. Endicott, Sec. of War, June 5, 1886, 160 MS. Dom. Let. 409, enclosing copy of dispatch No. 232, May 26, 1886, from the chargé d'affaires ad interim at Mexico. 2. MATRIMONIAL CAPACITY. $235. "As a general rule, matrimonial capacity is determined by the law of the place of domicil of the party in question." Section 180, Instructions to the Diplomatic Officers of the United States, 1897. Wharton, in his Int. Law Digest, § 263, says: "Three distinct theories have been advanced as to the law which is to determine matrimonial capacity. The first is the law of the place of solemnization. This undoubtedly holds good as to merely formal conditions, but cannot be regarded as having force when appealed to in a state where the competency of the parties rests on grounds of morality or public policy. The second is that of the law of the domicil of the parties, to which the same objection would apply, while to both of these tests the objection of uncertainty extends. (See Whart. Confl. of Laws, § 164.) A third, and better theory, is that which maintains the prevalence in such cases of the national policy of the country in which the parties assert their marital rights. No civilized nation will regard persons living within its borders as married when by its laws or policy the union is incestuous, polygamous, or otherwise immoral or antagonistic to national policy. (See Reynolds v. U. S., 98 U. S., 145; Whart. Confl. of Laws, §§ 131, 165.)" Wharton, referring to his treatise on the Conflict of Laws, § 169 et seq., suggests: "Immigrants marrying at a port of embarkation, in view of settling in the United States, may be so far regarded as domi ciled in that one of the United States to which they are bound as to bring them under the shelter of local laws which make marriages solemnized in accordance with the law of the domicil valid." See Wharton's Int. Law Digest, II. 734, § 261. Where persons, domiciled in a particular State, contracted a marriage on an American vessel, on the high seas, with a view to evade the laws of the State to which they immediately returned and in which they continued to reside, it was held that the validity of the marriage must be determined by the State laws. Norman . Norman (Cal.), 54 Pac. Rep. 143. 3. SOLEMNIZATION. (1) CONSENSUAL MARRIAGES. $236. By the common law in the United States, no particular ceremony is requisite to the validity of a marriage; but the relation is established by the present agreement of the parties to be man and wife. Such, it has been held, was the law of the Spanish as well as the English colonies in America. Cohabitation is but one of the many incidents of the marriage relation; it is not essential to it. The declarations and the admissions of the parties, and the fact that they lived together as husband and wife, and held themselves out to the world as such, are all circumstances from which the existence of marriage may be inferred. Murphy r. Ramsey, 114 U. S. 42; Miles v. United States, 103 U. S. 304; By the common law of the United States, and apart from special rules adopted by individual States, "consensual marriages are valid." Mr. Rives, Assist. Sec. of State, to Mr. Sewall, consul gen. at Apia, April 26, 1888, S. Ex. Doc. 31, 50 Cong. 2 sess. 55. (2) LAW OF PLACE GENERALLY GOVERNS. $237. 66 'Marriages are frequently celebrated in one country in a manner not lawful or valid in another; but did anybody ever doubt that marriages are valid all over the civilized world, if valid in the country in which they took Opinions of Mr. place?" Mr. Webster, Sec. of State, to Lord Ashburton, Brit. plenipo., Aug. 1, 1842, "I transmit a copy of a letter, under date the 20th inst., addressed to the Department by Mr. J. B. Sutherland, of Philadelphia, requesting the interposition of the Government for the purpose of preventing the forcible separation of Doctor Grayson M. Prevost from his wife, a Mexican lady to whom he was married at Brownsville, in Texas, and with whom he is now residing at Zacatecas, in Mexico. It is presumed that the Mexican ecclesiastical authorities found their proceedings upon the fact that the clergyman to whom the parties applied at Matamoras refused to perform the ceremony, and that, as they repaired to Brownsville and were married there in consequence of that refusal, the marriage was illegal according to the Mexican laws, and therefore that the church authorities have a right and are under the obligation to annul it and separate the parties. It appears that Dr. Prevost had himself addressed a letter to you upon the subject, and it is hoped that it will have reached you in season to enable you to prevent the result which he apprehended. It may be that the local clergymen concerned have proceeded in conformity to the laws of the Republic and the rules of the Catholic Church as established in Mexico, and therefore that any official application to the Mexican Executive would be premature, if not improper. The case, however, seems to be so urgent and the execution by the priests at Zacatecas of their threats would so certainly excite bad feeling in the United States, that it is deemed advisable for you to hold direct communication upon the subject with the head of the church at the City of Mexico. You will accordingly request him to instruct the subordinate clergymen in Zacatecas to suspend and if possible discontinue their proceedings, and express a hope that the rules of the church may be so altered as to prevent a recurrence of such cases. From the proximity of the two countries the intercourse between them and the likelihood of frequent intermarriages between their respective citizens, it is desirable that the rule upon this subject should be uniform in the United States and in Mexico. In this country, in England, and in most nations on the continent of Europe, a marriage is valid if it has been contracted according to the laws of the place where the ceremony was performed. This may be said to be the almost universal rule. It has been firmly established in England after elaborate discussion and investigation. In one of the principal cases upon the subject, the opinion of the celebrated Spanish jurist Sanchez, in favor of the rule, seems to have been much relied upon. His words are quoted below and ought certainly to be respected by the Mexican church. You may refer the Mexican archbishop to the passage and also to the character of Sanchez and of his treatise de matrimonio, expressed by Pope Clement VIII., also quoted below. Marriages between Protestants and Catholics are frequent in this country. Although the clergy of that persuasion may in general suppose that this may in some degree conflict with the welfare of their church, it is believed that they seldom if ever seriously oppose such marriages, though some of them may object to perform the ceremony if a Protestant clergyman is also to have an agency therein. It is an unquestionable fact, however, that many marriages take place between Catholics and Protestants in which the ceremony is performed by clergymen of both denominations. Although all Christian sects are equal before the law in this country, it is believed that the Catholics themselves do not object to this. Offices of honor and trust are open [in the United States] to them [Catholics] equally with Protestants, although the latter constitute a large majority of the population. The fact that the Chief Justice of the United States is a Catholic, is a signal instance of this. If the Mexican clergy or the Government and people of that country should not be prepared to adopt the system of religious toleration which prevails in the United States, it is hoped that they will relax the rule which forbids a priest from marrying a Protestant to a Catholic and makes it obligatory upon the clerical and other authorities to disavow and annul such marriage when it has taken place in the United States. In your communications with the archbishop upon this topic, you will be frank and conciliatory, and you will particularly endeavor to avoid leaving an impression that we desire anything inconsistent with the prosperity or even substantial supremacy of his church in Mexico. On the contrary, we are actuated by the belief that, if the rule is rigidly enforced there, it will tend to produce an excitement in this country hazardous to its peace and perhaps prejudicial to the interests of Catholics in the United States." Mr. Webster, Sec. of State, to Mr. Letcher, min. to Mexico, Jan. 29, 1851, MS. Inst. Mex. XVI. 244. |