Page:Harvard Law Review Volume 32.djvu/849

813 JURISDICTION TO ANNUL A MARRIAGE 813 general policy of encouraging marriage, and for reasons of con- venience, the law of the domicile says, usually, if the parties' marriage is vaHd where contracted, that is sufficient to establish the marriage status.^^ Devolution of personal property is according to the law of the domicile of the deceased at the time of his death, but only because the law of the situs of the property permits it so to go.^° The state of the situs can tax the passing by inheritance;^^ it can, and sometimes does, change the rule so that its own statute of distributions governs the succession.^^ So in marriage the sovereign of the marrying party's domicile may refuse to make him a married man despite a valid ceremony elsewhere. English courts say an Enghshman will not be married by a ceremony of marriage valid where entered into, unless he has capacity to marry by EngHsh law.^^ They hold that where the marriage is of a kind abhorrent to their ideas of morahty and forbidden by English law, no marriage relation is created by a foreign marriage of an Enghshman, though vaHd where celebrated.^^ Southern states have said that a ceremony of marriage of one of their citizens with a member of another race forbidden by their laws created no relation of wedlock,^^ even if celebrated in another state where permitted. Statutes frequently declare invahd marriages contracted abroad by the citizens with intent to evade the marriage laws of their domicile.^^ And in the case of persons married where there is no law, or no law of nuptial contracts, how can following the form of the law of domicile be effective to make them husband and wife, as text-writers often say,^^ ^^ See a note on "Validity of Foreign Marriages," 26 Harv. L. Rev. 536, containing about the same idea as that expressed here. '" See Prof. Charles E. Carpenter in 31 Harv. L. Rev. 905, 920, 921. '1 Matter of Swift, 137 N. Y. 77, 32 N. E. 1096 (1893). For a statute, so doing Iowa Code Supp. § 1481 a. ^ Hurd's Rev. Stats, of Illinois, 191 7, c. 39, § i. ^ See the valuable discussion of the English cases in an article, " Capacity and Form of Marriage in the Conflict of Laws," by Thomas Baty, 26 Yale L. J. 444. ^ Brook V. Brook, 9 H. L. C. 193 (1861). ^* State V. Kennedy, 76 N. C. 251 (1877); Kinney v. Commonwealth, 30 Gratt. (Va.) 858 (1878); State v. Tutty, 41 Fed. 753 (1890). ^* D. C. Code, § 1287 (1902); Burns Ann., Ind. Stat., Revision of 1908, § 8367; Rev. Stat. Maine, 1916, c. 64, § 10; Mass. Rev. Laws, c. 151, § 10. '^ Minor, supra, § 77. The opinion of Huber, who is declared by Professor Lorenzen to have had "a greater influence upon the development of Conflict of Laws in England and the United States than any other work," is interesting in this connection even though perhaps not of great importance. He says (translation by Professor Lorenzen) : "It often happens that young people under guardianship, desiring to unite their secret