reason seems to be in favor of confining the privilege of the lex fori to citizens of the forum, so far as the operation of this exception is concerned."

However it may be as to putting citizens of the forum and of third States (within the Union) on an equal footing, opinion has been divided as to whether it is proper to exclude citizens of the State whose law is properly applicable; it being said that in their favor their own law should not be set aside and substituted by the lex fori, unless the settled policy of the forum (independently of citizenship) requires its substitution.

8

Another question arises which involves the scope of this exception. Does it apply only to citizens of the forum, or should it be extended to those, not citizens, who are domiciled there, or even to those who are casually present there? As between the States of this Union, if the party upon whom the foreign law operates injuriously is a citizen of the United States, he must be held a citizen of the forum if he is domiciled there." But if he be not domiciled there, or if he be an alien, or if the v. Lacombe, 84 N. Y. 367; Catlin v. Silver Plate Co., 123 Ind. 477, 24 N. E. 250, 8 L. R. A. 62, 65; First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696; Gilman v. Ketchum, 84 Wis. 60, 54 N. W. 395; Fuller v. Steiglitz, 27 Ohio St. 355, 22 Am. Rep. 312, 318, 319; Milne v. Moreton, 6 Binn. (Penn.) 353, 6 Am. Dec. 466. See Atherton Co. v. Ives, 20 Fed. 894, 897, in which the court seems inclined to place even citizens of foreign countries upon the same footing with citizens of the forum.

The first exception operates, regardless of citizenship. See Douglas v. Bank, 97 Tenn. 133, 36 S. W. 874, 876; Moore v. Church, 70 Ia. 208, 59 Am. Rep. 439, 441; Barth v. Backus, 140 N. Y. 230; Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442. The last two are cases of involuntary assignments under insolvency laws. Such assignments have no exterritorial effect. See post, § 137.

7 Barnett v. Kinney, 147 U. S. 476, 481; Cole v. Cunningham, 133 U. S. 107, 129; Baghy v. R. R. Co., 86 Penn. St. 291; Bacon v. Horne, 123 Penn. St. 452, 453, 16 Atl. 794; Gilman v. Ketchum, 84 Wis. 60, 54 N. W. 395; Faulkner v. Hyman, 142 Mass. 53, 55; May v. Wannemacher, 111 Mass. 202, 209; Woodward v. Brooks, 128 Ill. 222, 20 N. E. 685; In re Dalpay, 41 Minn. 532, 43 N. W. 564, 566. But see Barth v. Backus, 140 N. Y. 230, 29 N. E. 209; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367.

8 See Moore v. Church, 70 Ia. 208, 59 Am. Rep. 439, 441. See post, §§ 134, 138, where this question is more fully discussed.

U. S. Const. Amendment XIV.

suit be instituted in a foreign country, the point becomes important.

It is believed that the exception comprises within its scope all those for whose protection and benefit the lex fori is enacted, including not only citizens, but aliens domiciled there, and sometimes persons resident there for a temporary purpose.

10

§ 9. Third Exception - Proper Foreign Law Contra Bonos Mores. This exception also is merely a particular application of the first. There are certain things which are inherently vicious, demoralizing, and antagonistic to the general principles of morality which form the basis of civilized societies. It is a most important part of the policy of every civilized State that the law should prohibit or discourage such things as far as practicable. They are generally condemned by every system of municipal law.

When we come to examine this principle, as it applies in private international law, we find that there are certain transactions which, though valid in some barbarous or semi-civilized States, and perhaps even in one or two that are civilized, are reprobated by the municipal law of most countries, as immoral in fact or in tendency. Such, for example, are polygamous marriages; marriages between parent and child, grandparent and grandchild, or brother and sister; contracts to reward crime; contracts for the price of illicit intercourse; contracts to corrupt or evade the due administration of justice, to defraud or corrupt public agents; and in general all transactions which in their nature are founded in moral turpitude, and are inconsistent with the good order and substantial interests of the forum. Such transactions will always be discountenanced by the lex fori, regardless of the character stamped upon them by the law which should properly govern them.1

10 Woodworth v. Spring, 4 Allen (Mass.), 321; Bank v. Williams, 46 Miss. 618; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; Freeman's Appeal, 68 Conn. 533, 37 Atl. 420. See Donovan v. Pitcher, 53 Ala. 411, 25 Am. Rep. 634; Hilton v. Guyot, 159 U. S. 113.

1 Story, Confl. L. § 258; Oscanyon v. Arms Co., 103 U. S. 261; Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145, 147-9; Armstrong v. Toler, 11 Wheat. 258; Merchants' Bank v. Spalding, 12 Barb. (N. Y.) 302; Madrazzo v. Willes, 3 Barn. & Ald. 353.

The same principle will also apply where a contract is made for the purpose of giving aid to the enemies of a country with which the forum is in amity; 2 or to a contract tending to the bribery and corruption of the officers of a foreign government.

Under this head may likewise be placed those transactions which are so detrimental to the interests of the forum itself, and disclose such a disregard for the public weal as to amount to immorality. Of this character are contracts with alien enemies, contracts to smuggle goods into the forum, or to evade or violate its revenue laws. Yet, strange to say, the rule has been laid down otherwise in cases where the transaction is a fraud upon the revenue laws of another State, upon the paltry and shortsighted theory that one State has no concern with the revenue laws of another, and that the latter must enforce its own laws. "Sound morals would seem to point to a very different conclusion." 995

So also, if an attempt be made to evade the "proper law," a fraud upon that law is committed, which the courts of that State at least will not in general tolerate. They will substitute the law which should have governed had there been no such fraud. The validity of a transaction cannot be secured by apparently subjecting it to a law by which it is not properly governed."

Thus, in Mortg. Co. v. Jefferson," the plaintiffs, who resided 2 Kennett v. Chambers, 14 How. 38 (a contract to furnish aid to Texans against Mexicans).

3 Oscanyon v. Arms Co., 103 U. S. 261.

Armstrong v. Toler, 11 Wheat. 258; Griswold v. Waddington, 16 Johns. (N. Y.) 438; Ivey v. Lolland, 42 Miss. 444, 2 Am. Rep. 606.

5 Story, Conf. L. §§ 245 et seq.; Ivey v. Lolland, 42 Miss. 444, 448, 2 Am. Rep. 606; Merchants' Bank v. Spalding, 9 N. Y. 53, 63.

• See Story, Confl. L. § 106; Mortg. Co. v. Jefferson, 69 Miss. 770, 12 So. 464, 465; Hinds v. Brazealle, 2 How. (Miss.) 837, 32 Am. Dec. 307; Gardner v. Lewis, 7 Gill (Md.), 378, 392; Arbuckle v. Reaume, 96 Mich. 243, 55 N. W. 808; Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 703, 704; Com. v. Lane, 113 Mass. 458, 471, 18 Am. Rep. 509; West Cambridge v. Lexing ton, 1 Pick. (Mass.) 506, 11 Am. Dec. 231; Akers v. Demond, 103 Mass. 318, 324; Kinney v. Com., 30 Gratt. (Va.) 858; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683.

7 69 Miss. 770, 12 So. 464, 465.

in Tennessee, borrowed money of the defendant, a New York corporation, securing the loan by a deed of trust upon land in Mississippi. The notes were made in Tennessee and payable in New York, and were usurious by the laws of both States, but not by the law of Mississippi. The deed of trust recited (contrary to the fact) that it and the notes were made in Mississippi, where they were not usurious, and that they were to be construed according to the laws of that State. But the Mississippi court disregarded this recital altogether, holding that the laws of a State and access to its courts are not the subject of contract. There is an exception, however, to this last principle in the case of marriage. It is of the utmost importance to the very existence of society that its well-spring, the marriage relation, should be kept pure and unpolluted. The courts strain every nerve to uphold a marriage, not in itself immoral. Hence, if citizens of a State leave it to contract elsewhere a marriage, forbidden by the law of their domicil but valid where contracted, and afterwards return to their domicil, though this is an evasion of the domiciliary law, the marriage will be upheld in all States other than their domicil.

8

Upon the question whether the courts of the domicil will uphold such a marriage, the authorities are much divided. Many influential courts stand in favor of upholding the marriage at all hazards, even though it be contracted in fraud and evasion of the home law, deeming this general policy superior to all special policies of the domicil and forum. Others, as influential, make the question turn upon the relative importance of the policies involved. While not lightly setting aside a marriage valid where contracted, neither will they lightly set aside important domestic policies closely relating to the moral life of the people. Under this line of cases the relative importance of the policies

8 See post, § 73; Dickson v. Dickson, 1 Yerg. (Tenn.) 110, 24 Am. Dec. 444.

• Medway v. Needham, 16 Mass. 157, 6 Am. Dec. 131; Com. v. Putnam, 1 Pick. (Mass.) 136; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509; Putnam v. Putnam, 8 Pick. (Mass.) 433; Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505; Stevenson v. Gray, 17 B. Mon. (Ky.) 193; Thorp v. Thorp, 90 N. Y. 602.

involved is the criterion, and the result in a particular case will depend upon the weight attached by the particular court, in a sound judicial discretion, to the policy indicated by the domiciliary legislation. And this, it is believed, is the better view.10

There are some transactions which, though deemed immoral in some States, cannot be said to be immoral by the laws of nature, this being evidenced by the fact that some fully civilized nations do not so consider them. To this head belong marriages between persons related to each other by ties of consanguinity or affinity.

All civilized States reprobate marriages between persons in the direct lineal line of consanguinity, and those contracted between brother and sister." Such marriages therefore, though celebrated in a barbarous country where they are valid, will generally be adjudged void in all civilized States, as being contra bonos mores.12 But when we proceed further than this, to marriages between uncle or aunt and niece or nephew, between brother-in-law and sister-in-law, between first cousins, etc., we find there is no common opinion in Christendom upon the morality of such marriages. Some States prohibit them while others permit them. It cannot then be said in such case that the marriage is universally or even generally deemed immoral throughout the civilized world. The fact is otherwise. Hence in these latter cases the courts will not feel at liberty to depart from the "proper law," even though by the lex fori such a marriage would be disapproved and declared void. If valid by its proper law, it will be valid everywhere.18

10 Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 704, 705; Kinney v. Com., 30 Gratt. (Va.) 858; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683. See post, § 73, where this whole topic is examined at large. 11 Story, Confl. L. § 114; Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343, 349; Sutton v. Warren, 10 Met. (Mass.) 451, 452.

12 Story, Conf. L. § 114.

13 Story, Confl. L. § 114; Greenwood v. Curtis, 6 Mass. 358, 379, 4 Am. Dec. 145; Medway v. Needham, 16 Mass. 157, 6 Am. Dec. 131; Com. v. Lane, 113 Mass. 458, 463, 18 Am. Rep. 509; Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343, 349; Kinney v. Com., 30 Gratt. (Va.) 858; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683; Stevenson v. Gray, 17 B. Mon.