judgment, or otherwise, the tribunal in which the suit is brought, or from which execution is sought, is, on principle, at liberty to examine into the merits of such judgment, and to give effect to it or not, as may be found just and equitable. The general comity, utility, and convenience of nations have, however, established a usage among most civilized States, by which the final judgments of foreign courts of competent jurisdiction are reciprocally carried into execution, under certain regulations and restrictions, which differ in different countries.2 Law of By the law of England, the judgment of a foreign England. tribunal, of competent jurisdiction, is conclusive where the same matter comes incidentally in controversy between the same parties; and full effect is given to the exceptio rei judicatæ, where it is pleaded in bar of a new suit for the same cause of action. A foreign judgment is primâ facie evidence, where the party claiming the benefit of it applies to the English courts to enforce it, and it lies on the defendant to impeach the justice of it, or to show that it was irregularly obtained. If this is not shown, it is received as evidence of a debt, for which a new judgment is rendered in the English court, and execution awarded. But if it appears by the record of the proceedings, on which the original judgment was founded, that it was unjustly or fraudulently obtained, without actual personal notice to the party affected by it; or if it is clearly and unequivocally shown, by extrinsic evidence, that the judgment has manifestly pro- . ceeded upon false premises or inadequate reasons, or upon a palpable mistake of local or foreign law; it will not be enforced by the English tribunals.3 American law. The same jurisprudence prevails in the United States of America, in respect to judgments and decrees rendered by the tribunals of a State foreign to the Union. As between the different States of the Union itself, a judgment obtained in one State has the same credit and effect in all the other States, which it has by the laws of that State where it was 1 Kent's Comm. vol. ii. p. 119, 5th edit. 2 Fœlix, §§ 292-311. 3 Knapp's Rep. in the Privy Council, vol. i. p. 274: Frankland v. McGusty. Barnewall & Adolphus's Rep. vol. ii. p. 757: Novelli v. Rossi; vol. iii. p. 951: Becquet v. M'Carthy. obtained; that is, it has the conclusive effect of a domestic judgment.1 The law of France restrains the operation of foreign Law of judgments within narrower limits. Judgments obtained France. in a foreign country against French subjects are not conclusive, either where the same matter comes again incidentally in controversy, or where a direct suit is brought to enforce the judg ment in the French tribunals. And this want of comity is even carried so far, that, where a French subject commences a suit in a foreign tribunal, and judgment is rendered against him, the exception of lis finita is not admitted as a bar to a new action by the same party, in the tribunals of his own country. If the judgment in question has been obtained against a foreigner, subject to the jurisdiction of the tribunal where it was pronounced, it is conclusive in bar of a new action in the French tribunals, between the same parties. But the party who seeks to enforce it must bring a new suit upon it, in which the judgment is primá facie evidence only; the defendant being permitted to contest the merits, and to show not only that it was irregularly obtained, but that it is unjust and illegal.2 The execution of foreign judgments in personam is reciprocally allowed, by the law and usage of the different States of the Germanic Confederation, and of the European continent in general, except Spain, Portugal, Russia, Sweden, Norway, France, and the countries whose legislation is based on the French civil code.3 A decree of divorce obtained in a foreign country, by Foreign a fraudulent evasion of the laws of the State to which divorces. the parties belong, would seem, on principle, to be clearly void in the country of their domicile, where the marriage took place, though valid under the laws of the country where the divorce was obtained. Such are divorces obtained by parties going into 1 Cranch's Rep. vol. vii. pp. 481-484: Mills v. Duryee. Wheaton's Rep. vol. iii. p. 234: Hampton v. M'Connel. 2 Code Civil, art. 2123, 2128. Code de Procédure Civil, art. 546. Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, § 2, No. 1488. Merlin, Répertoire, tom. vi. tit. Jugement. Questions de Droit, tom. iii. tit. Jugement. Toullier, Droit Civil Français, tom. x. Nos. 76-86. 3 Fœlix, Droit International Privé, §§ 293-311. another country for the sole purpose of obtaining a dissolution of the nuptial contract, for causes not allowed by the laws of their own country, or where those laws do not permit a divorce à vinculo for any cause whatever. This subject has been thrown into almost inextricable confusion, by the contrariety of decisions between the tribunals of England and Scotland; the courts of the former refusing to recognize divorces à vinculo pronounced by the Scottish tribunals, between English subjects who had not acquired a bona fide permanent domicile in Scotland; whilst the Scottish courts persist in granting such divorces in cases where, by the law of England, Ireland, and the colonies connected with the United Kingdom, the authority of parliament alone is competent to dissolve the marriage, so as to enable either party, during the lifetime of the other, again to contract lawful wedlock.1 In the most recent English decision on this subject, the House of Lords, sitting as a Court of Appeals in a case coming from Scotland, and considering itself bound to administer the law of Scotland, determined that the Scottish courts had, by the law of that country, a rightful jurisdiction to decree a divorce between parties actually domiciled in Scotland, notwithstanding the marriage was contracted in England. But the Court did not decide what effect such a divorce would have, if brought directly in question in an English court of justice.2 (a) In the United States, the rule appears to be conclusively settled that the lex loci of the State, in which the parties are bonâ fide domiciled, gives jurisdiction to the local courts to decree a divorce, for any cause recognized as sufficient by the local law, without regard to the law of that State where the marriage was 1 Dow's Parliament. Cases, vol. i. p. 117: Tovey v. Lindsay, p. 124. Lolly's case. See Fergusson's Reports of Decisions in the Consistorial Courts of Scotland, passim. 2 Warrender v. Warrender, Bligh. Rep. vol. ix. p. 89. S. C. Clark & Finnell. Rep. vol. ii. p. 488. (a) [The status of parties, domiciled subjects of and married in America, is not so affected by a sentence pronounced at and founded on a rule of law peculiar to Rome, the persons being then resident at Rome and coming subsequently to England, that an English forum would, by reason of such sentence, refuse to entertain questions arising out of the married state of such persons. English Law and Equity Reports, vol. ii. p. 570. Connelly v. Connelly.] originally contracted. This, of course, excludes such divorces as are obtained in fraudulent evasion of the laws of one State, by parties removing into another for the sole purpose of procuring a divorce.2 1 Dorsey v. Dorsey, Chandler's Law Reporter, vol. i. p. 287. 18* CHAPTER III. of States RIGHTS OF EQUALITY. § 1. Natu- THE natural equality of sovereign States may be ral equality modified by positive compact, or by consent implied modified by from constant usage, so as to entitle one State to supeor usage. riority over another in respect to certain external objects, such as rank, titles, and other ceremonial distinctions. compact § 2. Royal honors. Thus the international law of Europe has attributed to certain States what are called royal honors, which are actually enjoyed by every empire or kingdom in Europe, by the Pope, the grand duchies in Germany, and the Germanic and Swiss Confederations. They were also formerly conceded to the German empire, and to some of the great republics, such as the United Netherlands and Venice. These royal honors entitle the States by which they are possessed to precedence over all others who do not enjoy the same rank, with the exclusive right of sending to other States public ministers of the first rank, as ambassadors, together with certain other distinctive titles and ceremonies.1 3. Pre cedence among Among the princes who enjoy this rank, the Catholic powers concede the precedency to the Pope, or soveprinces and reign pontiff; but Russia and the Protestant States of joying royal Europe consider him as Bishop of Rome only, and honors. a sovereign prince in Italy, and such of them as enjoy royal honors refuse him the precedence. States en 1 Vattel, Droit des Gens, tom. i. liv. ii. ch. 3, § 38. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. iii. ch. 2, § 129. Klüber, Droit des Gens Moderne, pt. ii. tit. 1, ch. 3, §§ 91, 92. Heffter, Europäische Völkerrecht, § 28. |