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United States. There is one exception in the jurisprudence of some of the states, as to the force and effect of foreign sentences in the prize courts of admiralty, bearing upon neutral rights.
While those sentences are regarded in the courts of the United States as binding and conclusive upon the same questions, there has been some difference of opinion, and some collisions on this point, in the decisions in the state courts. The weight of judicial authority appears, however, to be decidedly in favour of the binding force and universal application of the doctrine of the English law.d
a Hitchcock & Fitch v. Aitkin, i Caines' Rep. 460. Goix v. Low, 1 Johns. Cas. 393. Taylor v. Bryden, 8 Johns. Rep. 178. Aldrich v. Kinney, 4 Conn. Rep 380. Bissell v. Briggs, 9 Mass. Rep. 463. Washington, J. 4 Cranch'. Rep. 442.
o Croudson v. Leonard, 4 Cranch's Rep. 434.
c They were declared to be conclusive, according to the English rule, upon the question of neutral property, in a subsequent suit upon the policy of insurance, by the courts of law in New-York. 1 Johns. Cas. 16. Ludlows v. Dale, 2 Johns. Cas. 127. Vandenbeuvel v. Utica Insurance Company; but the doctrine in those cases was reversed in the Court of Errors. 2 Johnson's Cases, 451. They were declared to be conclusive by the Supreme Court of Pennsylvania, in 1 Binney, 299. note; but the legislature of that state, by an act passed in March, 1809, declared, that they should not be held conclusive. They were held to be binding in South Carolina, 2 Bay, 242., in Connecticut, 1 Day, 142., and in Massachusetts, 6 Mass. Rep. 277.
d The question, touching the effect of foreign judgments, has been frequently, and very extensively and profoundly discussed, before the French tribunals ; and it is surprising to observe the very little respect or comity which bas bitherto been afforded to the judicial decisions of foreign nations, in so enlightened, so polished, and so commercial a country as France.
The French jurisprudence on this subject, disclaimed ang authority derived from the jus gentium, and it was placed entirely upon the basis of the royal ordinance of 1629. That ordinance declared, that foreign judgments, for whatever cause, should not be deemed to create any lieo, or have any execution io France; and that notwithstanding It has, however, been a vexed question, whether foreign judgments, as between strangers, were entitled to any notice whatever, or were to receive a blind execution, without looking into their merits.. There seems to have been much vibration of opinion, and doubt and uncertainty, on this point
The statute of this state, a authorizes the Court of Chancery to allow of qualified divorces a mensa et thoro, founded on the complaint of the wife of cruel and inhuman
the judgments, Frenchmen, against wbom they might have been rendere ed, should not be affected by them, but be entitled to have their rights discussed de novo, equally as if no such judgment bad been renle ed
Emerigon, (Traite des Ass. ch. iv. sect. 8. ch. xii. sect. 20.) said, that the rule applied equally in favour of strangers dorniciled in France, and it applied, whether the Frenchman be the plaintiff or defendant ; but as to foreigo judgments between strangers, they might be executed in France, without any examination of the merits.
In the elaborate argument, which M. Merlin delivered before the Court of Cassation, in the case of Spohrer v. Moe, and wbich he has preserved entire in bis Questions de Droit, tit. Jugement, sect. 14, be showed by many judicial precedents, that the French law (jurisprudence des arrets,) had been uniform from the date of the royal ordinance, down to this day; that nothing which bad been judicially decided under a foreigo jurisdiction, bad any effect in France, and did not afford any ground or colour, even for the exceptio rei judicatæ. Ile maintained, that the law did not distinguish between cases, for that all foreigo judgments, whoever might be the parties, whether in favour or against a Frenchman with a stranger, or whether between strangers, and whether the judgment was by default, or upon confession or trial, were of do avail in France, and the jurisprudence des arrels rejected every such distioction. Whenever this rule had been suspended, had been occasioned by the force of special treaties, such as that between France and the Swiss cantons, in 1777; or accorded by way of re. ciprocity to a particular power, such as in the case of the Duke of Lorrain, in 1733. The judgment of the Court of C'assation, on appeal, rendered in the year 12 of the French republic, was, that the foreign judgment, in that case, in which a Frenchman was one of the parties, and a Norwegian the other, was of no effect whatever. (Vide Reperloire de jurisprudence, tit. Jugement, sect 6. Questions de Droit, h. t. sect.14.) Afterwards, in the case of Holker, v. Holker, decided in the
a Lxus of N. Y. sess. 36. ch. 102. sect. 10, 11.
treatment, or such conduct as renders it unsafe and improper for her to cohabit with her husband, and be under his dominion and control; or for wilful desertion of her, and
Court of Cassation, in 1819, it was settled upon the authority of the new
refusal or neglect to provide for her. The court may decree a separation from bed and board for ever, or for a limited time, in its discretion, and may take suitable provisions, by way of alimony, for the support and maintenance of the wife and children, and may sequester the husband's estate for that purpose. The husband is attowed to show, by way of defence, the ill conduct of his wife.
These qualified divorces are allowed by the laws of almost all countries. In England, they are allowed only propter sævitiam aut adulterium; and where there is a separation for such a cause, if the parties come together again, the same cause cannot be revived. a
Indetermining what is sævitia, by the ecclesiastical law, we find it stated, in Evans v. Evans,b that it is necessary there should be a reasonable apprehension of bodily hurt. The courts keep the rule very strict. The causes must be grave and weights, and show such a state of personal danger as that the duties of the married life cannot be discharged. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to that cruelty against which the law ean re
French courts have taken cognizance of the merits of them, and have acted in respect to them in the nature of a court of appeal. The rule applies to all foreigo judgments without distinction, and the French courts will admit the proofs taken in the foreign courts, locus regit actum. Vide Toullier's Droit Civil Francais, suivant l'ordre du Code, tome 10. No. 76 to 86. The French and the English law have now at last approached very dear to each other on this interesting head of national jurisprudence. They agree perfectly when the foreign judginent is sought to be enforced; but I do not know whether the French courts will permit, as they certainly ought, a plea of a foreign judgment in bar of a new suit for the same cause, to be conclusive, if fairly pronounced by a foreign court, having a jurisdiction confessedly competent for the case.
a Lord Eldon, 11 Desey, 532, bi Haggard, 35.
lieve. The wife must disarm such a disposition in the husband by the weapons of kindness.a
This being the rule of the English courts, it would appear, that divorces a mensa are placed by our statute on rather broader ground. They are not only for cruelty, but generally for such conduct on the part of the husband towards his wife, as renders it unsafe and improper for her to cohabit with him, and be under his dominion and control. Probably the word unsafe, in our statute, may mean the same thing as the reasonable apprehension of bodily hurt in the English cases. It was considered, in the case of Barrere v. Barrere,b that the danger or injury must be serious, and the slightest assault or touch in anger, , was not, in ordinary cases, sufficient. It was likewise held, in that case, that the separation need not be deelared to be for any specific time, but may be left general and indefinite, with liberty to the parties to be reconciled when they please, and to apply to be discharged from the decree. The decree of divorce is always, by the canon law, sub
reconciliationis.c The statute in this case seems to have considered the wife as the only infirm party who stands in need of such protection, for it confines the divorce a mensa, for cruelty, desertion, or other improper conduct, to such conduct in the husband;d but the English ecclesiastical law makes no such distinction, and divorces are granted, on a bill by the husband, for cruel usage by the wife. Upon these
separations from bed and board, the children that the wife has during the separation, are bastards, for duc obedience to the
a 1 Haggard, 364. 409. vol. ii. p. 148. Pothier, Triile du Contrat de Mariage, sec. 509. 2 Mass. Rep. 150. 3 Ibid. 321. 4 Thid 587.
b 4 Johns. Ch. Rep. 187.
c Burns' Eccl. Law, tit. Marriage, c. 11. sec. 4. Oughlon's Ordo Jud. tit. 215. sec. 3. Bynk. Q. Jur. Prio. I. 2. c. 8.
d Vapveghten v. Vapveghten, 4 Jolins. Ch. Rep. 50h. e Kirkman v. Kirkman, 1 Haggard, 409.