Upon the principles of the English law, a marriage contracted in New York cannot be dissolved, except for adultery, by any foreign tribunal out of the United States; because the lex 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 New York 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 such a cause not admissible here, would such a divorce be received here as binding? A statute, though not in the nature of a judicial proceeding, is, however, a record of the highest nature; and in some of the states, all their divorces are by special statutes. But if a statute, though a matter of record, was to have the same effect in one state as in another, then one state would be dictating laws for another, and a fearful collision of jurisdiction would instantly follow. That construction is utterly inadmissible. While it is conceded to be a principle of public law, requisite for the safe

without having regard to the native country of the parties, or of their marriage. The decision, and the order for reargument, in the case of Birtwhistle v. Vardill, infra, p. 209, n. (d), have gone far to disembarrass the collision between English and foreign law from some of its most distressing results.

In Dorsey v. Dorsey, 7 Watts, 349, it was held by the Supreme Court of Pennsylvania, that the law of the actual domicil of the party at the time of committing the injury, was the rule in cases of divorce for everything but the original obligation of marriage; and that, although the original domicil and marriage of the parties were in Pennsylvania, the court had no jurisdiction of a cause of divorce alleged to have been committed in Ohio by the husband, while his domicil was in the state of Ohio. Ch. J. Gibson briefly but forcibly sustained the principle of the decision. So, in Kentucky, it is held that no state or nation has power to dissolve the marriage contract between citizens of any other state or nation, not resident or domiciled within its limits, for no nation could preserve its social order, if any other foreign state could, without its consent, dissolve or disturb that most important domestic institution of marriage. The principle that no foreign power can control the marriage contracts of foreigners, not domiciled within its jurisdictional limits, was clearly illustrated in the opinion of Ch. J. Robertson, and it rests upon the soundest basis of policy and sovereignty, and a decree of divorce was held to be void against a husband who was never domiciled in the state. Maguire v. Maguire, 7 Dana's Rep. 181.1

1 Harrison v. Harrison, 19 Ala. 499.

intercourse and commerce of mankind, that acts valid

*by the law of the place where they arise, are valid every- 118 where, it is, at the same time, to be understood that this principle relates 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 permitted to operate beyond the limits of the territory, without effecting 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 March, 1804, ch. 56, relates only to office books kept in the public offices, and has no bearing on 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. (a)

(3.) Effect of foreign judgments and suits.

1. Foreign judgments.

In cases not governed by the constitution and laws of the

(a) In Tolen v. Tolen, 2 Blackf. Ind. Rep. 407, a divorce a vinculo for adultery was sustained in Indiana, though the parties were married in another state, where they resided, and the cause of divorce arose there, and the defendant continued to reside there, and had constructive notice only of the suit of his wife for a divorce by publication; but she had for some years been a bona fide citizen of Indiana, and acquired a domicil animo manendi. The decision was founded upon the authority of the statute of 1831, which allowed suits for a divorce for just cause to all persons who had resided in the state one year, and as against non-residents, on giving constructive notice by publication.

United States, the doctrine of the English law generally, 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 transac

*

tions in the course of business, as the subjects to which 119 they can be applied may render easy and pertinent the consideration of this branch of municipal and general jurisprudence. At present it will be sufficient to show, in connection 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 reëxamined. It was against the law of nations, he observed, not to give credit to the judgments and sentences of foreign countries, till they be reversed by the law, and according to the forms of those countries wherein they were given. He referred to Wier's case, 5 Jas. I., (b) wherein a judgment in debt having been rendered in Holland against an Englishman, he fled from execution to England, and the judg ment 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 the justice of one nation should be aiding to the justice of another nation, and the one to execute the judgments of the other." It has become a settled principle in the English courts, that where a debt has been recovered of a debtor, under the process of foreign attachment, fairly and not collusively, the recovery is a protection to the garnishee against his original creditor, and he may plead it in bar. (c)1

(a) Note to 2 Swanst. Rep. 242, from Lord Nottingham's MSS.

(b) 1 Rol. Abr. 530, pl. 12.

(c) Le Chevalier v. Lynch, Doug. Rep. 170. Cleve v. Mills, Cooke's B. L. 243.

1 Cummings v. Banks, 2 Barb. S. C. Rep. 602.

*120

A distinction has been taken since the time of Lord Nottingham, 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. 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; for the effect to be given to foreign judgments is altogether a matter of comity, in cases where it is not regulated by treaty. In the former case of a suit to enforce a foreign judgment, 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 on the defendant to impeach the justice of it, or to show that it was irregularly and unduly 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. (a) But if the foreign judgment has been pronounced by

Allen v. Dundas, 3 Term Rep. 125. M'Daniel v. Hughes, 3 East, 367. Huxham v. Smith, 2 Campb. N. P. Rep. 19. Embree & Collins v. Hanna, 5 Johns. Rep. 101. Holmes v. Remsen, 4 Johns. Ch. Rep. 460. Where proceedings are in rem, all persons who could have asserted a right to the property become parties by the monition, and all judgments founded upon such proceedings, whether they regard real or personal property, being within the jurisdiction of the court, are held valid and binding, as being res judicata in every other country, in respect to all matters of right and title, transfer and disposition of the property. Rose v. Himely, 4 Cranch, 241. 7 Ibid. 429, S. P. Grant v. M'Lachlin, 4 Johns. Rep. 34. Curia Philipica, part 2, sec. 22, cited and proved on trial as containing the same and the true Spanish law on the point. 3 Binney's Rep. 230, note. Bauduc's Syndics v. Nicholson, 4 Louis. Rep. 81.

(a) Cited in the case of the Duchess of Kingston, 11 State Tr. by Harg. 222; and also in Walker v. Witter, Doug. Rep. 1; and in Galbraith v. Neville, ibid. 6, note. See, also, Lord Kenyon's opinion in this latter case, 5 East, 475, note; and also Lord Mansfield's opinion in Walker v. Witter, and the opinion of Buller, J., in Galbraith v. Neville, and the opinion of Lord Ch. J. Eyre, in Philips v. Hunter, 2 H. Blacks. Rep. 410. Hall v. Odber, 11 East, 124. But in Martin v. Nicolls, 3 Simon's Rep. 458, the vice-chancellor has undertaken to controvert the doctrine in Sinclair v. Frazer, and he held that a foreign judgment could not be questioned, not merely when it comes in collaterally or by way of defence, but in a suit brought directly upon it to enforce it. It is requisite, however, in order to recognize and give effect in any way

Noyes v. Butler, 6 Barb. S. C. Rep. 613. Though the judgment is only prima facie evidence of facts, which go to establish the jurisdiction of the court rendering the judg ment, yet it is conclusive as to other facts.

VOL. II.

9

a court possessed of competent jurisdiction over the cause and the parties, and carried into effect, and the losing parties insti

to a foreign judgment, that the court which pronounced it was competent to the case, and had due and lawful jurisdiction over the cause and the parties, and that there had been regular judicial proceedings; and this is the case whether the proceedings which led to the judgment be in rem or in personam. Sawyer v. The Maine F. & M. Ins. Co. 12 Mass. Rep. 291. Bradstreet v. Neptune Ins. Co. U. S. C. C., Boston, October, 1839, 3 Sumner, 600. Story's Com. on the Conflict of Laws, § 586-590. See, also, supra, vol. i. p. 251, n. b. The present inclination of the English courts is in conformity with the opinion of the vice-chancellor. Lord Ellenborough, in Tarleton v. Tarleton, 4 Maule & Selw. 21. Guinness v. Carwell, 1 B. & Aldolph. Rep. 429. Becquet v. MacCarthy, 2 ibid. 951. See, also, Starkie on Evidence, vol. i. p. 297. The arguments and authorities for and against the latter doctrine of the English courts, that a foreign judgment, regularly obtained, is conclusive ex comitate gentium, as well where it is sought to be enforced as when it is interposed by way of plea, are fully and ably stated and considered in Southgate v. Montgomerie, in the Scotch court at Edinburgh, in 1835. The lord ordinary (Jeffrey) decided that foreign judgments were only prima facie evidence of the claim, and the discussions alluded to were on appeal from that decision. It would seem from the case of Smith v. Nicolls, 5 Bingham, N. C. 208, that the English courts are returning to the old doctrine of Mansfield, Eyre, and Kenyon, that in assumpsit on a foreign judgment, the judgment is only prima facie evidence of the debt. In Houlditch v. Donegal, (8 Bligh, 301,) the result of the judgment of the House of Lords was, that there were cases in which it was competent for the court to look into the ground and reasons of the foreign judgment, and satisfy itself as to the law of the country. And in Koster v. Sapte, (1 Curteis, 691,) in the prerogative court of Canterbury, Sir Herbert Jenner admitted, that under certain circumstances, as where there was a question as to jurisdiction, or whether the party was cited according to law, and for some other purpose, a foreign decree might be examined, but that it could not be opened, in order to examine by your own lights and knowledge whether a foreign judgment was pronounced on good ground or not. See, also, on this subject, Bradstreet v. Neptune Ins. Co. U. S. C. C., Boston, October, 1839, 3 Sumner, 600. The Law Reporter, No. 2, for January, 1840. Price v. Dewhurst, 8 Simons, 279. Mr. Justice Story reasons strongly in favor of the latter doctrine of the absolute conclusiveness of foreign judgments; (Com. on the Conflict of Laws, § 607,) and that is certainly the more convenient and the safest rule, and the most consistent with sound principle, except in cases in which the court which pronounced the judgment has not due jurisdiction of the case, or of the defendant, or the proceeding was in fraud or founded in palpable mistake or irregularity, or bad by the law of the rei judicata; and in all such cases the justice of the judgment ought to be impeached. Not only Vattel, but Huberus and other civilians cited by Henry on Foreign Law, maintain the entire validity of foreign judgments in every other country. Vattel, b. 2. ch. 7, sec. 84, 85. Huberus de Conflictu Legum, lib. 1, tit. 3, sec. 3, 6. Henry on Foreign Law, 74, 75, 76. In Boston India R. Factory v. Hoit, 14 Vermont R. 92, it was held that assumpsit was not the proper action on a judgment of another state, but it should be debt on the record of the judgment. See supra, vol. i. p. [260.]1

It is now held in England that the record of a foreign judgment is prima facie