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and foreign courts are not bound to inquire after that will, or after the municipal law to which it may correspond. They are bound to look to their own law, and to hold it paramount, especially in the administration of that department of internal jurisprudence, which operates directly on public morals and domestic manners.
The consequences would be embarrassing, and probably inextricable, if the personal capacities of individuals, as of majors and minors, the competency to contract marriages, and infringe matrimonial obligations, and the rights of domestic authority and service, were to be regulated by foreign laws and customs, with which the mass of the population must be utterly unacquainted. The whole order of society would be disjointed, were the positive institutions of foreign nations concerning the domestic relations admitted to operate universally, and form privileged casts living each under separate laws. Though marriage, contracted according to the lex loci, be valid all the world over, yer many of its rights and duties are regulated and enforced by public law, which is imperative on all who are domiciled within its jurisdiction. The laws of divorce are considered as of the utmost importance as public laws, affecting the dearest interests of society, and they are not to be relaxed as to a person doiniciled in Scotland, because his marriage was contracted out of it. If two natives of Scotland were married in France or Prussia, the marriage would be valid in Scotland; but would the parties be entitled to come into court, and insist on a divorce a vinculo, because their tempers were not suitable, or for any of the great variety of whimsical and absurd grounds for a divorce allowed by the Prussian code of 1795 ? certainly not; and the conclusion was, that the law of divorce must be governed by the law of Scotland, whenever the party was sufficiently domiciled, there to enable the.court to sustain jurisdiction of the cause.
I have thus given, for the benefit of the student, a pretty enlarged view of the discussions in Scotland, on this great question, touching the power of divorce in one country upon marriage in another. The same question was
brought up on appeal from Scotland, to the House of Lords in England, iu 1813, in the case of Tovey v. Lindsaya and Lord Eldon there stated the decision of the twelve judges to have been, that no English marriage could be dissolved but by parliament. The question in the case was, whether an English marriage could be dissolved by a Scotch court, even if the parties were sufficiently domiciled there to found a jurisdiction of the case. The Lord Chancellor admitted it to be a question of the highest importance; and Lord Redesdale intimated, that it could not be just, that one party should be able, at his option, to dissolve a contract, by a law different from that under which it was formed, and by which the other party understood it to be governed. The case was remitted back for review, without any final decision in the English House of Lords; but the opinions of Lord Eldon and Lord Redesdale evidently agreed with the decision of the twelve judges at Westminster, and went to deny the competency of any foreign court to pronounce a decree of divorce a vinculo of English marriages, or to pronounce any other decree in the case than such as would be warranted by the lex loci contractus.
Upon the principles of the English law, a marriage contracted in this state cannot be dissolved, except for adultery, by any foreign tribunal out of the United States ; beeause the ler loci contractus ought to govern ; and if a divorce by a judicial proceeding in one of these United States, be entitled to a different consideration in others, it is owing to the force which the national compact, and the laws made in pursuance of it, give to the records and judicial proceedings of other states. If, however, a marriage in this state should be dissolved, not by a regular judicial sentence, but by an act of the legislature in another state, passed specially for the purpose, and for a cause not admissible here, would such a divorce be received here as binding? A statute, though not in the nature of a judi
a 1 Dovo's Rep. 117.
cial proceeding, is, however, a record of the highest natule; and in some of the states all their divorces are by special statutes. But if a statute, though a matter of ro cord, was to have the same eifect in one state as in another, then one state would be dictating laws for another, and a Tearful collision of jurisdiction rould instantly follow. That construction is utterly inadmissible. While it is conceded to be a principle of public law, requisite for the safe intercourse and commerce of mankind, that acts valid by the law of the place where they arise, are vald every where, it is at the same time to be understood, that this principle rclates only to civil acts founded on the volition of the parties, and not to such as proceed from the sovereign power.
The force of the latter cannot be per: mitted to operate beyond the limits of the territory, without affecting the necessary independence of nations. And, in the present case, it is to be observed, that the act of Congress of the 26th of May, 1790, ch. 11. prescribing the mode of authenticating records, only declares the faith and credit to be given to the records and judicial proceedings of the courts in the several states; and the supplementary act of the 27th of Marchi, 1804, ch. 56. relates only to office books kept in the public offices, and has no bearing ou this point. But if, instead of a divorce by statute ex directo, the act should refer a special case to a court of justice, with directions to inquire into the fact, and to grant a divorce, or withhold it, as the case might require, would that be a judicial proceeding, to which full effect ought to be given ? A number of embarrassing questions of this kind may be raised on this subject of interfering jurisdictions, and some of them may, probably, hereafter exercise the talents, and require the application of the utmost discretion and wisdom of the courts of justice. I have done as much as becomes the duty which I have assumed, in bringing into view the most material decisions which have taken place, and stating the principles which have been judicially recognized.
In cases not governed by the constitution and laws of the United States, the doctrine of the English law gene
rally, and, with some few exceptions, is the law of this country, as to the force and effect to be given.to.foreign judgments. I shall, probably, take occasion, in subsequent parts of these lectures, to consider the effect to be given here to foreign contracts, foreign assignments, foreign official acts, and other various transactions in the course of business, as the subjects to which they can be applied may render easy and pertinent the consideration of this branch of inunicipal and general jurisprudence. At present it will be sufficient to show, in connexion with this inquiry, that the English law is exceedingly, if not peculiarly liberal, in the respect which it pays to foreign judgments in all other cases, except the case of a foreign divorce of an English marriage. As early as the reign of Charles II., Lord Chancellor Nottingham maintained, in the House of Lords, in Cottington's case, a that a foreign decree of divorce, in the case of a foreign marriage, was conclusive, and could not be opened, or the merits re-examined. It was against the. law of nations, he observed, not to give credit to the judg. ments and sentences et foreign countries, till they be reversed by the law, and according to the form of those countries wherein they were given. He referred to Wier's case, 5 J. 1." wherein a judgment in debt having been rendered in Holland against an Englishman, he fled from execution to England, and the judgment being certified, the defendant was imprisoned in the admiralty for the debt, and the K. B., upon habeas corpus, held the imprisonment to be lawful, and that“ it was by the law of nations that she jus tice of one nation should be aiding to the justice of another nation, and the one to execute the judgments of the other."
A distinction is taken in the English law, between a suit brought to enforce a foreign judgment, and a plea of a foreign judgment in bar of a fresh suit for the same cause.
a Note to 2 Swanston, 542. from Lord Nottingham's MSS. 1 1 Rol. Mộr. 530. pl. 12.
No, sovereign is obliged to execute, within his dominion, a sentence rendered out of it; and if execution be sought by a suit upon the judgment, or otherwise, he is at liberty, in his courts of justice; to examine into the merits of such judgment. In the former case, the rule is, that the foreign judgment is to be received, in the first instance, as prima facie evidence of the debt, and it lies in the defendant to impeach the justice of it, or to show that it was irregularly and undaly obtained. This was the principle declared and settled by the House of Lords in 1771, in the case of Sinclair v. Fraser, upon an appeal from the Court of Session in Scotland. But if the foreign judgment has been pronounced by a court possessed of competent jurisdiction over the cause and the parties, and carried into effect, and the losing party institutes a new suit upon the same matter, the plea of the former judgment constitutes an absolute
bar, provided the subject, and parties, and grounds of the judgment, be the same. It is a res judicata, which is received as evidence of truth ; and the exceptio rei judicatæ, as the plea is termed in the civil law, is final and conclusive. This is a principle of general jurisprudence founded on public convenience, and sanctioned by the usage and curtesy of nations. The rule of the English law has been very generally recognised in the courts of justice in this country, in cases not affected by the constitution and law of the
a Cited in the case of The Dutchess of Kingston, 11 Slate Tr. by Harg. 222. ; and also n Galbraith v. Neville, Doug. Rep. 5. note. See also, Lord Kenyon's opinion in this latter case, 5 East, 475. note.
6 Hughes v. Cornelius, Raym. 473. Burrows v. Jemino, Str. 733. Hamilton v. The Dutch East India Company, 8 Bro. P. C. by Tomlins, p. 264. Lothian v. Henderson, 3 Bos. & Pull. 499. Graham v. Maxwell, 2 Doro. Par. Cases, 314.
c Vattel, b. 2. c. 7. S. 84, 85. Martens' Summary of the Law of Nation's, b. 3. c. 3. 8. 20. Ersks, Inst. of Scots. Law, vol. ij. 735. Kame's Pr. of Equity, yol. ii. 366.