owing to the provisions of the Royal Marriage Act, 11 Cl. & Fin. 85, would have been considered valid in Rome where it was contracted. See the evidence of Dr., afterwards Cardinal, Wiseman in the Minutes of Evidence in the Sussex Peerage Case.

Impossibility to contract marriage according to form of place of cele bration.-We now proceed to the consideration of a question which presents great difficulty, namely, How is it possible for persons to contract a Christian marriage, where they are unable to satisfy the forms prescribed for Christian marriage by the law of the place where the marriage takes place, or where they are in a heathen country where no forms are prescribed for a Christian marriage?

The following appear to be the considerations by which we must be guided when we seek the answer to this question :

First.—Marriage is a natural status irrespective of the provisions of positive law (Lindo v. Belisario, 1 Hagg. C. R. at p. 230; Dalrymple v. Dalrymple, 2 Hagg. C. R. at p. 63; Merlin Rep. tit. Marriage S. 1); it is impossible to suppose that any Christian community, or even any non-Christian community knowing the difference between right and wrong, can intend to condemn people to pass their lives either in a state of celibacy or in a state of immorality. At all events if this is the law of any state, an English Court will not apply it to the marriage of a domiciled Englishman.

Secondly. Subject to the provisions of positive law, the marriages of Christians are governed by the Canon Law. The Canon Law is the basis of the marriage law all over Europe, and the only question is how far it has been receded from by the laws of any particular country,' per ELDON, C., Macadam v. Walker, 1 Dow. at p. 181. 'The Canon Law is the basis of the Law of Scotland as it is of the marriage law of all Europe, and whether that law remains entire or has been varied, I take it to be a safe conclusion that in all instances where it is not proved that the law of Scotland has resiled from it, the fair presumption is, that it continues the same,' per SIR W. SCOTT, Dalrymple v. Dalrymple, 2 Hagg. C. R. at p. 81. By 25 H. VIII, c. 19, repealed by 1 & 2 Phil. & M. c. 8, and revived by 1 Eliz. c. 1. s. 6, which is still in force, a commission was to be appointed to review ecclesiastical laws in general, and it was provided that until such review should be made, which never happened, 'such canons, constitutions, ordinances and synodals provincial, being already made, which be not contrariant or repugnant to the laws, statutes, and customs of this Realm, nor to the damage or hurt of the King's Prerogative Royal, shall now still be used and executed as they were afore the making of this Act.'

Assuming the dicta above cited to be correct, it appears that the sole question for consideration where a Christian marriage is alleged to have been contracted in a country where the positive law affords no means by which the parties can intermarry is whether the marriage is good according to the Canon Law. The parties may be unable to

comply with the provisions of the lex loci for either of the reasons following:

(1) They may be in a Christian state, but may belong to a denomination of Christians for whose marriage the laws of that state make no provision. For instance, no provision for the marriage of Protestants was formerly made in Pontifical states, or is now made in some parts of South America. (See Report on Foreign Marriages, App. 1899.)

(2) They may be in a Christian state, the law of which imposes some highly unreasonable restraints on marriage.

(3) They may be in a non-Christian state, where no provision is made for the marriages of Christians.

(4) It may happen that though the marriage takes place in a state where the law provides a form of marriage competent to the parties, they are under a physical impossibility of complying with that form ; this has happened in the British colonies.

Applying the considerations above stated to the first case, it has been held that a marriage between Protestants in the Pontifical States performed by a clergyman of the Church of England was valid. Anon (said to be Lord Cloncurry's Case), Cruise on Dignities, 276. 85. Probably a marriage per verba de praesenti between Protestants in the Pontifical states would have been valid. See the Minutes of Evidence in the Sussex Peerage Case.

On the same principle marriages between Jews celebrated according to Jewish rites in England have been supported; Goldsmid v. Bromer, 1 Hagg. C. R. 324; Lindo v. Belisario, 1 Hagg. C. R. 216; D'Aguilar v. D'Aguilar, 1 Hagg. E. R. 773. See Selden, Ux. Eb., and as to the existing law, 6 & 7 Will. IV, c. 85; 19 & 20 Vict. c. 119, s. 21.

In the second case, where the law of a country imposes unreasonable restraints on marriage, LORD STOWELL seems to have been of opinion that, where the foreign law fixed the marriageable age at an advanced time of life, a marriage in that country between British subjects domi ciled in England would not be invalidated on the ground of not having attained that age: Ruding v. Smith, 2 Hagg. C. R. 371. In the same case LORD STOWELL points out that in cases where the lex loci required an abandonment of religious opinions as a condition before marriage, English law would disregard the lex loci.

It should perhaps be observed that the fact of a Christian man in a non-Christian country going through the form of a marriage according to the lex loci, with a non-Christian native, cannot by itself be evidence whether he wished to contract a non-Christian marriage or a Christian marriage per verba de praesenti, as if the latter was his intention he may have had to go through the form of a non-Christian marriage before he could obtain possession of his bride. It might be thought that a distinction must be drawn in the third and fourth cases between places in and out of the British Dominions, on the ground that where the parties are in the British Dominions, they take Common Law with them, and that therefore the marriage must necessarily take place

before a Roman Catholic priesɩ or a minister of the English Church; The Queen v. Millis, 10 Cl. & Fin. 534.

...

It is said (2 P. W. 74) to have been decided by the Privy Council that if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so wherever they go they carry their laws with them, and therefore such new country is to be governed by the laws of England. . . . Where the King of England conquers a country he may impose on the inhabitants what laws he pleases, and until he does so the laws and customs of the conquered country shall hold place; unless where they are contrary to our religion, or enact anything that is malum in se or are silent; for in all such cases the law of the conquering country shall prevail.' It is obvious that if the conquered country is polygamous the necessity of the case shows that Christians must take the Christian marriage law with them. It is impossible to discuss within the limits of this article the general question, how far Englishmen, when they carry English law with them, carry the whole of that law. Lord Mansfield said (Campbell v. Hall, Lofft at p. 710), 'It is absurd that in the colonies they should carry all the laws of England with them; they carry only such as are applicable to their situation.' See this question discussed, The Mayor of Lyons v. The East India Co., 1 Moo. I. Ap. 175; Att. Gen. v. Stuart, 2 Mer. 143; Adv. Gen. of Bengal v. Ranee Surnomoye Dossree, 2 Moo. P. C., N. S. 32; Re Bishop of Natal, 3 Moo. P. C., N. S. 115; Whicker v. Hume, 7 H. L. C. 121. The following cases appear to show that the decision in The Queen v. Millis does not necessarily apply to colonial marriages.

It has been decided in Maclean v. Christall, Per. Or. Ca. 75, S. C. 7 N. of C. App. xvii., that English people in a colony do not necessarily carry the whole Common Law with them, and that they only take so much of it as is reasonably applicable to their state and condition. See a dictum to the same effect, Connolly v. Woolrich, 11 Low. Can. Jur. 197. Maclean v. Christall was an action for crim. con., an action in which the marriage must be strictly proved, Morris v. Miller, 2 Burr. 2057. The marriage took place in India, before an Independent minister who had not received Episcopal Ordination, in the house of the lady's father, and was upheld, on a special case, by the Supreme Court in Bombay as a marriage per verba de praesenti. The decision was not appealed from, and a divorce a mensâ et thoro was obtained by the husband in the Consistory Court of London on the 20th January, 1851. A Divorce Bill was introduced into Parliament, and passed the House of Lords, though it never received the Royal assent. A report of the proceedings in the House of Lords will be found in the Times, 17th March, 1851. No discussion appears to have taken place in the House of Lords as to the validity of the marriage, which was proved by the evidence of the lady's father to have taken place in his house. It should perhaps be observed that the marriage took place in Surat, where there was a British Chaplaincy which was vacant at the time of

the marriage, though a clergyman of the Church of England was nominated chaplain the day after, and reached Surat about three weeks after the marriage. See Catterall v. Catterall, 2 Rob. E. R. 580.

A careful comparison of Re Bethell, 38 Ch. D. 220 with Connolly v. Woolrich, 11 Low. Can. Jur. 197, tends to show that the principles here laid down may be safely applied to the third and fourth cases. In Re Bethell a Christian went through the form of marriage according to the custom of the Baralong tribe, at Mafeking, in Bechuanaland, where polygamy prevails, with T, a Baralong girl: B positively refused to marry T either in a Wesleyan chapel at Mafeking or in an English church at Kimberley, which was not far off. B constantly cohabited with T in the Baralong country till his death, which happened a few months after the marriage; and though he kept up constant communication with his relatives at home he never mentioned his marriage to them, add to which that he never introduced T to any European as his wife. By his will B, who had substantial property in England, directed that his child by T should be brought up and educated on the proceeds of thirty heifers, a provision which appears to be inconsistent with a belief on the part of B that the issue of his marriage with T would be legitimate. In other words, the whole evidence showed that B considered that his marriage with T was not a Christian marriage, but was merely a polygamous marriage, and there was no evidence that T considered, or had any grounds for considering, it anything else. The facts in Connolly v. Woolrich, 11 Low. Can. Jur. 197, were very different. C, a Christian residing at Riviere Aux Rats in Athabaska married an Indian woman, S, according to the custom of the Cree tribe, who admit of polygamy and divorce; but it was proved that it was not the custom of Europeans in the position of C to discard wives married in this manner. In order to have contracted a marriage before a priest or a magistrate C would have had to have travelled between three and four thousand miles in canoes and on foot. C cohabited for twenty-eight years with S at several posts in the North West Territory and in Montreal, and introduced her to Europeans as his wife. During this time she was called Mrs. C, and her children by C were always acknowledged in public, educated, and some of them were baptized as legitimate; but one was, with the consent of C, baptized as illegitimate. During the lifetime of S, C contracted a Christian marriage with W; afterwards his children by S were reputed to be illegitimate. After the death of C it was held that his surviving child by S was legitimate on the ground that his marriage with S was valid as a contract per verba de praesenti. Johnson v. Johnson's Administrator, 30 Missouri S. R. 72, was very similar in the facts to Connolly v. Woolrich, except that no evidence was given as to any difficulty in contracting a Christian marriage, the distinction being that by the Statute Law of Missouri it was only necessary to prove a marriage de facto, even if it was null in law, to render the children legitimate. The Court was of opinion that the fact of the marriage being able to be, and having been in fact, dis

solved by the husband at his pleasure, did not prevent it from being a marriage de facto.

Hyde v. Hyde, L. R. 1 P. & M. 130, only shows that a polygamous marriage is not recognized by English Law as a valid marriage in a suit by one of the persons against the other, for the purpose of enforcing matrimonial duties or obtaining relief from matrimonial obligations, but the Court carefully guarded itself against professing to decide upon the rights or obligations of the issue of a polygamous marriage, or the rights or obligations in relation to third parties which people living under the sanction of such unions may have created for themselves.

Re Alison's Trusts, 23 W. R. 226, appears to be in opposition to the views here laid down. The friends of V, an Armenian woman probably domiciled in Persia, applied to the Armenian priests to marry her to O, the British Vice-Consul at Teheran, who from his name must have been an Englishman. The priests refused on account of her pregnancy. Shortly afterwards V and O were privately married by a Roman Catholic priest. MALINS, V. C., decided that the marriage was invalid; he thought that as O must have known of 12 & 13 Vict. c. 68, under which he could have contracted a marriage lawfully in England, and as he did not avail himself of it, it was evident that he never intended to marry V. But the Vice-Chancellor further says, ' By the law of the Roman Catholic Church one of the parties must have been a Roman Catholic, and there was no pretext for saying that either was a Roman Catholic. The laws of the country were not complied with.' Unless there is some error in the report, the decision seems incorrect. In England we have always recognized a marriage contracted before a Roman Catholic priest as valid, except in cases where such marriages are prohibited by positive law.

The following cases may also be referred to as showing that marriages celebrated by a clergyman of the Church of England (Limerick v. Limerick, 11 W. R. 503), or between Roman Catholics celebrated by a Catholic priest (James v. James, 30 W. R. 232), in a colony not governed by a special law are valid. That the lex loci of a nonChristian state will not be held to bind Christians in all respects, see Kojahs & Memon's Case, Per. Or. Ca. at p. 127.

Assuming that the views here advocated are correct, and that marriages per verba de praesenti by domiciled English people contracted in the colonies or in non-Christian states may under the circumstances be valid, the further question arises, Do they have all the effects of a valid marriage, or do they have only the effects which marriages of this nature contracted in England before Lord Hardwicke's Act were considered to have before the decision in The Queen v. Millis?

The former appears to be the correct view. The Queen v. Millis shows that marriages of that nature contracted in places governed by the Common Law are absolutely void, so that in cases where they are now held valid they are valid independently of the Common Law, and therefore must have all the effects of a valid marriage.-Howard W. Elphinstone, in The Law Quarterly Review.