(w) Greenwood v. Curtis, 6 Mass. 368, 378; Sneed v. Ewing, 6 J. J. Marsh. 460, 489; Sutton v. Warren, 10 Met 451. And see Wightman v. Wightman, 4 Johns. Ch. 343.

(x) See Sutton v. Warren, 10 Met. 461, and Bonham v.Badgley, 2 Gilman, 622, as cited ante, p. n. (g).

1 Where Portuguese first cousins were married in England according to English law, and returning to Portugal did not cohabit as husband and wife, such marriages there being illegal, as incestuous, unless dispensation is granted, it was held that, the parties being by the law of the country of their domicil under a personal disability to contract marriage, their marriage ought to be declared void, Sottomayor v. De Barros, 3 P. D. 1. "As in other contracts, so in that of marriage, personal capacity must depend on the law of domicil; and if the laws of any country prohibit its subjects within certain degrees of consanguinity from contracting marriage, and stamp a marriage between persons within the prohibited degrees as incestuous, this, in our opinion, imposes on the subjects of that country a personal incapacity which continues to affect them so long as they are domiciled in the country where this law prevails, and renders invalid a marriage between persons both at the time of their marriage subjects of, and domiciled in, the country which imposes this restriction, wherever such marriage may have been solemnized." Per Cotton, L. J. Kinney v. Commonwealth, 30 Gratt. 868, held that the marriage of a white man and a negro woman in the District of Columbia, there celebrated to evade the laws of Virginia, was void.

(y) See preceding note. In Warrender v. Warrender, 9 Bligh, 89, 112, Lord Brougham said, obiter however: "We should expect that the Spanish and Portuguese courts would hold an English marriage avoidable between uncle and niece, or brother and sister-in-law, though solemnized under papal dispensation, because it would clearly be avoidable in this country. But I strongly incline to think that our courts would refuse to sanction, and would avoid by sentence, a marriage between those relatives contracted in the Peninsula, under dispensation, although beyond all doubt such a marriage would there be valid by the lex loci contractus, and incapable of being set aside by any proceedings in that country." In True v. Ranney, 1 Foster, 55, Gilchrist, C. J., extends the exception to the rule, that marriages valid where celebrated are valid everywhere, to cases in which the marriage is opposed to "the municipal institutions of the country" where the rule is sought to be applied. See ante, p. * 81, n. (c). But we think this is going rather too far. In Greenwood v. Curtis, 6 Mass. 858, 878, the court say : "If a foreign State allows of marriages incestuous by the law of nature, as between parent and child, such marriage could not be allowed to have any validity here. But marriages not naturally unlawful, but prohibited by the law of one State, and not of another, if celebrated where they are not prohibited, would be holden valid in a State where they are not allowed. As in this State, a marriage between a man and his deceased wife's sister is lawful, but it is not so in some States. Such a marriage celebrated here would be held valid in any other State, and the parties entitled to the benefits of the matrimonial contract."

And Mr. Justice Story, after quoting this language, says: " Indeed, in the diversity of religious opinions in Christian countries, a large space must be allowed for interpretation, as to religious duties, rights, and solemnities. In the Catholic countries of continental Europe, there are many prohibitions of marriage, which are connected with religious canons and establishments, and in most countries there are some positive or customary prohibitions, which involve peculiarities of religious opinion or of conscientious doubt It would be most inconvenient to hold all marriages celebrated elsewhere void which are not in scrupulous accordance with the local institutions of a particular country." Confl. of Laws, § 116. It is to be remembered that even incestuous marriages are not void at common law, but only voidable; and voidable only during the lives of both parties; for, after the death of either, they are valid, as to the legitimacy of the children, and it would seem all other purposes. See 1 Bl. Com. 434, 485, and 2 Inst. 614. See also Bonham v. Badgley, 2 Gilman, 622; Sutton v. Warren, 10 Met. 453; Ray v. Sherwood, 1 Curteis, 198, 199. The rule is, that for civil disabilities, such as prior marriage, idiocy, and the like, the marriage may be declared either before or after the death of the parties, or either of them, to have been void from the beginning; but for canonical disabilities, only during the lives of both; and canonical disabilities are said to be consanguinity, affinity, and certain corporal infirmities. See Elliott v. Gurr, 2 Phill. 16; Gathings v. Williams, 5 Ired. 487. The Statute of 6 Wm. IV. ch. 54, makes some of these marriages absolutely void.

And it may be, at least, conjectured, that if a Mormon came into Massachusetts or New York with half a dozen wives, he would not be held there to be the lawful husband of all of them. (z)

The fact that the parties went abroad for the purpose of contracting a marriage there, which would be illegal at home, ought, it might seem, to destroy the validity of the marriage at home. But the contrary doctrine appears to have been held, and to be established in England and in this country. (a)1 There must, however, be some limit to this. The common case of Gretna Green marriages only shows that persons may be married in Scotland, and then regarded in England as husband and wife, who could not have been married in that way in England. At least we are not aware of any English case recognizing the validity of a marriage contracted abroad between * English subjects who could not, in any way, become legally husband and wife by any marriage contracted in England; and quite recently it has been held in England, that the marriage of an Englishman to the sister of his deceased wife, both parties being domiciled in England, would be unlawful in that country, and therefore invalid, although performed in Denmark, where such a marriage is allowed; and the children of the marriage were held to be illegitimate on the ground that the Statute of 5 & 6 William IV. ch. 54, declares all marriages within the prohibited degrees to be absolutely null and void, and that the lex loci did not apply to a contract prohibited by the positive law of the country of which both parties were subjects. (b) In Massachusetts the cases go somewhat further, but expressly except those foreign marriages "which would tend to outrage the principles and feelings of all civilized nations." (c) It may, however, be remarked, that while the converse of this rule is also true, and a marriage which is void where contracted is valid nowhere, (d) there must also be some exceptions to this rule; as if two Americans intermarried in China, where the marriage was celebrated in presence of an American chaplain, according to the American forms. If such a marriage were perfectly void in China, it would nevertheless be held certainly valid here. (e) An interesting and instructive case has recently been decided in Massachusetts, involving many of the most * important principles and questions belonging to the subject of foreign marriage and legitimation. (f) And in a late case in England, it has been held that a marriage contracted in a country where polygamy is lawful, between parties professing a faith which permits polygamy, is not a marriage as understood in Christendom, and will not be recognized in the English Matrimonial Court as a valid marriage. (ff) The question arose in a suit for divorce from a Mormon marriage.