out the parties having sought or obtained the consent of their parents; and more especially, that the parties, in coming to England, had a formal intention to evade the Laws of France. In 1857, A. came to reside permanently in England, and in 1859 petitioned the Court to annul the same marriage with B. B. was personally served at Naples with a copy of the citation and of the petition, and did not appear. It was holden, that as there was nothing contrary to natural justice in calling upon a respondent to have the validity or invalidity of a supposed contract ascertained and determined by the Tribunal of the country where it was entered into, the Court of Divorce was competent to entertain such a suit (t).

[DVI.B. In Le Sueur v. Le Sueur (tt) the parties were married and cohabited in the island of Jersey, to which the English Divorce Acts do not apply. After living some years in Jersey the husband committed adultery, deserted his wife, and went to live in the United States. The wife came to England, where her husband had never acquired a domicil, and, having there established herself, brought a suit for dissolution of marriage.

Sir R. Phillimore in the course of his judgment observed: "Upon the whole I am disposed to assume in favour of "the petitioner the correctness of the opinion that desertion "on the part of the husband may entitle the wife, without "a decree of judicial separation, to choose a new domicil "for herself; and in coming to that conclusion I am aware "that I am going a step further than judicial decisions "have yet gone. The question remains: Is it competent "to the wife to make the husband amenable to the lex fori "of her new domicil?"

After reviewing the authorities, the judge continued: "In the case before me the wife is suing her husband not "in the tribunal of the place of his original domicil, or of

(t) Vide suprà, § ccccxxxv. A.
[(tt) L. R. 1 P. D. p. 139.]

"the marriage (according to the law of which, it is not "immaterial to remark, the bond was indissoluble), or of "the delictum, or of his residence, or of his acquired domicil, but in a tribunal to which he has never been subjected by any act of his own."

The petition was dismissed.

The question in Niboyet v. Nihoyet (u) was whether the English Court could receive a wife's petition for divorce in a case where the wife, being originally English, had married a Frenchman at Gibraltar in accordance with the rites of the Church of England. The husband, being in the consular service of France, resided with his wife in several places and ultimately in England, but never lost his French domicil. Her petition alleged that he had been guilty of desertion, and of adultery in England. The Court of Appeal (James and Cotton, L. JJ., Brett, L. J., dissentiente), reversing the decision of the Court below, held that on the true construction of the English Divorce Act of 1857 (20 & 21 Vict. c. 85) there was jurisdiction to receive the petition and, if it were proved, to decree a dissolution. This case, it will be observed, differs from Le Sueur v. Le Sueur in that the tribunal resorted to was that of the country in which the respondent had for several years resided and in which the matrimonial offence had been committed. (v)]

DVII. (5.) As to the fifth and last question (w), the answer must depend upon the nature of the theory which the State applies to foreign divorces.

A State which held that the incapacity to be divorced, except for reasons admitted by the original Matrimonial domicil, was of the nature of a personal statute, ought

[(u) L. R. 3 P. D. p. 52 ; 4 P. D. p. 1.

(v) See also Firebrace v. Firebrace, L. R. 4 P. D. p. 63, cited antè, § cccclxxxvii. Santo Teodoro v. Santo Teodoro, L. R. 5 P. D. p. 79 ; and Scott v. H. M. Attorney-General, L. R. 11 P. D. p. 128, may also be referred to.]

(u) Vide suprà, § ccccxcv.

certainly to hold a foreign divorce on any other grounds than those admitted by the original Matrimonial domicil, to be null and void. So a State which holds that a divorce is a matter affecting public order and morality, is not bound to recognize a foreign divorce between its subjects founded upon reasons which it had not sanctioned by its own jurisprudence, whether these subjects had or had not been, at the time of obtaining the foreign divorce, domiciled in the State which granted it.

On the other hand, a State which does not hold the doctrine of the personal statute above mentioned, and which does not hold that divorce is such a question of public order and morality that no change of domicil can give a foreign State jurisdiction over it, ought to recognize the sentence of a foreign State over persons at the time domiciled within its territory, though her own subjects, and though she does not sanction the grounds of that divorce by her domestic Law.

DVIII. There are some miscellaneous points, the notice of which may not unfitly close this chapter.

1. The English, Scotch, and North American United States Courts agree in the doctrine, that the place in which the offence was committed (locus delicti), whether in the State in which the case is brought, or in a foreign State, is immaterial (x).

2. Whether the domicil of the parties, at the time the offence was committed, be or be not immaterial, is a more disputed question (y). But the more generally received doctrine in the three States which have been just mentioned, is in favour of the immateriality of this domicil. The question has been more agitated in the North American United States than in England and Scotland; but it

(x) Bishop on Marriage and Divorce, vol. ii. s. 171. [The judgments in Le Sueur v. Le Sueur and Niboyet v. Niboyet both allude to the locus delicti, but do not treat it as a fact of much weight.]

(y) Bishop, ibid. ss. 172 177.

has, as Mr. Bishop observes, seldom been matter of direct judicial discussion (z).

3. It seems clear, that States which recognize the validity of a foreign divorce, must recognize the incidents to it, such especially as its effects upon personal and real property.

The effect upon the former ought to be the same with that on the personal property in the State which decreed the divorce.

The effect upon the latter must depend upon the lex rei sita, according to the prevalent doctrine as to real property.

If the lex rei site visits divorce with certain consequences, and recognizes a foreign divorce, it ought to ascribe the same effects to it as to a divorce by the Domestic Law (a).

;

4. Where an Englishman married a Frenchwoman, and they resided in France, where their children were born and suits were instituted between them in both countries and were compromised by an agreement, part of which was that the wife would facilitate proceedings for a divorce, and another part was that one of the children should remain with the mother, and a third part related to the payment of an allowance to the wife: it was holden by an English Court, that assuming the contract to be enforceable by French Law, and that the parts of it invalid by English Law had been performed in France, nevertheless no part of it could be enforced by English Law (b).

(2) Ibid. s. 176. [Mr. Bishop's conclusion (s. 172) is as follows :— "The place of the parties' domicil at the commission of the offence is immaterial to the jurisdiction. The Courts of the new domicil can dissolve the marital status as well for what transpired before the change as after."]

(a) Cf. Story, s. 230 b.

(b) Hope v. Hope, 8 De G., M. & G. Rep. p. 731; et vide suprà, xviii.

NOTE TO CHAPTER XXI.

THE ROMAN LAW ON DIVORCE.

The history of the Civil Law of Rome as to Divorce is very interesting, and very often misunderstood. The primary object of the old law was to preserve the perfect liberty of the subject with respect to contracting Marriage-not to encourage Divorce. Traces of the old law appear in the Dig. lib. xlv. t. i. 134: "Inhonestum visum est vinculo pœnæ matrimonia obstringi sive futura sive jam contracta." Code, lib. v. t. iv. 14: "Neque ab initio matrimonium contrahere, neque dissociatum reconciliare quisquam cogi potest; unde intelligis liberam facultatem contrahendi atque distrahendi matrimonii transferri ad necessitatem non oportere." Lib. viii. t. xxxix. 2: “Libera matrimonia esse antiquitus placuit, ideoque pacta ne liceret divertere, non valere; et stipulationes quibus pœnæ irrogentur ei qui quæve divortium fecisset, ratas non haberi constat." It seems clear that the liberty of divorce was rarely resorted to before the year 553 A.U.C. The scandalous frequency of divorce after this period is well known to all readers of Plutarch, Tacitus, Cicero, Juvenal, Plautus, and Seneca. Augustus appears to have imposed some limitations upon it. Nor even after Christianity became the religion of the State, was divorce abolished. Constantine did not absolutely prohibit divorce, but limited the causes of it. The Council of Arles, A.D. 314, spoke doubtfully. St. Ambrose thought the language of the Gospel obscure, and that error on the point might be venial. Theodosius repealed the limitations of Constantine. Justinian restored, reluctantly, it is said, much of the license of divorce which had disgraced pagan Rome.-Novell. 117, c. viii. De justis divortiorum causis marito permissis; Novell. 134, c. x.; Novell. 140.

The differences between the Roman and Greek Churches on the subject of divorce are well known. The alteration in 1857 of the Law of England upon divorce was effected Ecclesiá inconsultâ as much as the Law of France in 1792.

Cf. Savigny, R. R. viii. s. 399, ii. 1.

Troplong, De l'influence du Christianisme sur le droit civil des Romains, Chapitre VI. Du Divorce.