from subsequent circumstances. This decision is, therefore, not inconsistent with the doctrine presently to be considered, that the Law of the place of residence may enforce certain obligations arising out of the Marriage Contract.

CCCCLXXXIV. (2) With respect to the obligations contracted by a wife.

They may be contracted in a State in which her husband may not be domiciled, and by the Law of that State the wife's incapacity, or the husband's, may be greater or less than by the Law of his domicil. Here again Mr. Burge observes (h):-" According to the doctrine held by "all jurists (i), the wife retains the incapacity to which "she was subject by the Law of the husband's domicil; "and, therefore, the validity of an obligation, in respect "of her capacity, and of the nature of the authority to "be given by the husband to enable her to act, must be "determined by that Law, and not by the Law of the place in which the obligation was contracted."

66

(3) With respect to gifts between husband and wife.

This question is also to be decided by the Law of the husband's domicil; it is a matter connected with, and dependent upon, the Status, and governed, therefore, by the Personal Law.

On this ground was founded an important arrêt of the Court of Paris (k). A foreigner, domiciled in France, made a gift to his wife conformably to the 1096th Article of the Code Napoléon. The Court held the gift valid, although the lex rei sitæ did not allow such a gift between married persons.

(h) Comm. vol. i. p. 258.

(i) Rodenburg, De Jure, tit. ii. c. i. n. 1, p. 28.

Boullenois, Traité, &c., tome ii. tit. iv. c. ii. obs. 46, p. 467.
Pothier, Traité des Obligations, par. ii. c. vi. s. 3, n. 389.

(k) 6 February, 1856, Rev. Pratique de Dr. Fr. tome i. p. 59, n. 2. Demangeat's Essay.

CCCCLXXXV. The old Roman Law (1) rigorously forbade all gifts between husband and wife as tending to substitute sordid considerations for those of love and duty, as the motive of performing the obligations of marriage.

Savigny (m) admits here, in exception to his general rule, that the Law of the Matrimonial domicil should prevail, that States which adopt a Law on these moral grounds are warranted in applying it to the exclusion of all other Law. If, therefore, at the period of a "donatio inter conjuges," their domicil be in a State which forbids it, the gift is null; but, if their domicil be in a State where it is not so forbidden, it is valid; for it cannot be said that persons, in whose Matrimonial domicil, at the time of their marriage, such a prohibitory Law prevailed, had tacitly contracted that they would never, under any circumstances, make gifts to each other. The prohibition is a simple restriction, ab extra, on the liberty of both parties to the contract, and not a condition to which the parties voluntarily submit themselves by the factum of their marriage.

On the other hand, Savigny is of opinion, with Rodenburg (n), J. Voet (o), and Meier (p), that this prohibitory Law is not to be applied to all immoveable property situate within the territory, but possessed by married persons domiciled in a country where no such prohibition prevails. The intent and object of the prohibitory Law are not to

(1) "Moribus apud nos receptum est, ne inter virum et uxorem donationes valerent. Hoc autem receptum est, ne mutuato amore invicem spoliarentur, donationibus non temperantes, sed profusâ erga se facilitate."-Dig. lib. xxiv. t. i. 1.

"Majores nostri inter virum et uxorem donationes prohibuerunt, amorem honestum solis animis æstimantes, famæ etiam conjunctorum consulentes, ne concordia pretio conciliari videretur: neve melior in paupertatem incideret, deterior ditior fieret."-Ibid. t. i. 3.

(m) R. R. viii. s. 379, num. 4.

(n) Tit. ii. c. v. n. 1, p. 67.

(0) In Pand. xxiv. i. s. 19,

(p) iii. p. 44.

protect the property of married persons against injury from mutual gifts, but to maintain the purity of morals in the married state. The legislator, moreover, addresses his law to married persons dwelling within his territory, and not to foreigners.

Savigny's opinion, therefore, agrees with the decision of the French Tribunal cited in the foregoing section.

CCCCLXXXVI. (4) With respect to the authority of the husband over the wife (l'autorité maritale).

The rule laid down in general terms by jurists is that this authority is also a question of Personal Law. It is manifest, however, that the Law of the place of residence, whether it be identical or not with the Law of the domicil, must, in many instances, prevail. "Marriage is "a contract" (as has been said) “sui generis " (q) ; many of the obligations and rights incident to it must be governed by the public Law of the State. For instance, the question of whether any, and if any what, amount of force, control, or chastisement may be exercised by a husband to a wife, must be under the cognizance of the Law of the place of residence. So, too, it should seem, must be complaints as to the violation of the conditions of the marriage bond.

For instance, if the husband deserts his wife, refuses her maintenance, or ill-treats her by violence, she has a right, jure gentium, to redress in the tribunals of the place where they reside.

CCCCLXXXVII. So, too, it would seem that the Courts of the place of residence ought to be open to suits brought by commorant foreigners for the purpose of compelling a performance of the obligations of marriage; for instance, suits for the restitution of Conjugal Rights. Such seems to have been the opinion of the English Courts in the remarkable case of Connelly v. Connelly (r). On this

(q) Edmonstone v. Lockhart, cited in Fergusson on Marriage and Divorce, p. 399-Lord Robertson's Judgment.

(r) 7 Moore's P. C. Rep. p. 438. Vide infrà, chap. xx. [In Firebrace

ground, also, Jews, whose Marriage Contract was subject to their own peculiar Laws, and who were, in this respect, treated altogether as foreigners, have been permitted to obtain redress for the violation of the obligations of the Marriage Contract in the ordinary Matrimonial Courts of the country (s).

CCCCLXXXVIII. Whether the principle that the Law of the place of residence is applicable to the enforcement of the rights and obligations, and to the general protection of married parties, can be so far extended as to include the power either of absolutely or of partially annulling the contract, will be considered in the following Chapter upon the effect of Foreign Divorces.

CCCCLXXXIX. The domicil of the wife is, as has been seen, as a general rule, for all purposes identical with the domicil of the husband. How far the misconduct of the husband may affect this general rule has been already considered (t).

CCCCXC. [is omitted as relating to old English Law, now altered by recent legislation.]

v. Firebrace (L. R. 4 P. D. 63) Sir J. Hannen refused this relief to a wife whose husband before suit had quitted the jurisdiction. "The domicil of the wife," he said, "is the domicil of the husband, and her remedy for matrimonial wrongs must be usually sought for in the place of that domicil. It is not however inconsistent with this principle that a wife should be allowed in some cases to obtain relief against her husband in the tribunal of the country in which she is resident, though not domiciled. What these cases may be it is unnecessary now to determine but it appears to me that the particular relief now sought by decree for restitution of conjugal rights does not, where the husband had quitted the jurisdiction before suit, present an exception to the rule above stated."

See Niboyet v. Niboyet, L. R. 4 P. D. 1; et vide post, §§ ccccxcv—ccccxcviii.]

(s) Lindo v. Belisario, 1 Haggard's Consist. Rep. p. 216. D'Aguilar v. D'Aguilar, 1 Haggard's Eccl. Rep. p. 773. (t) Vide suprà, chapter viii. [et infrà, § dvi. B.].

CHAPTER XXI.

DIVORCE-FOREIGN SENTENCE.

CCCCXCI. THAT portion of Private International Law which relates to Divorce ought, perhaps, strictly speaking, to form a part of the consideration of the effect given by Comity to the sentences of Foreign Tribunals (a), a subject which is treated of in a later part of this volume. But it seems more practically convenient to examine this question in connection with the Law on Marriage.

CCCCXCII. The Contract of Marriage differs from all others (b) in this, among other incidents, that it cannot be broken at the mere will and pleasure of the parties who entered into it (c).

In every Christian State, which permits either the entire or the partial dissolution of the Marriage Bond, the intervention of the public authority, in the shape of a judicial sentence, is necessary.

CCCCXCIII. Christian States have been unanimous in recognizing, subject to the limitations and exceptions which have been mentioned, the general principle, that Marriage celebrated according to the lex loci contractús is

(a) So Merlin mentions under Questions de Droit-Divorce, viii. : "Les tribunaux Français peuvent-ils annuler un Divorce prononcé par jugement en pays étranger?" but refers to l'article "Jugement," xix.

[(b) "Marriage . . . is indeed based upon the contract of the parties, but it is a status arising out of a contract, to which each country is entitled to attach its own conditions, both as to its creation and duration." Per Sir James Hannen, in Sottomayor v. De Barros, L. R. 5 P. D. at p. 101.]

(c) See note at the end of this chapter as to the Roman Law on Divorce.