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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, 1 Caines' Rep. 480. 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's Rep. 442.
b 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. Vandenheuvel 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 has hitherto 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 any 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 lien, or have any execution in France; and that notwithstanding
The statute of this state, 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 whom they might have been rendered, should not be affected by them, but be entitled to have their rights discussed de novo, equally as if no such judgment had 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 domiciled in France, and it applied, whether the Frenchman be the plaintiff or defendant; but as to foreign judgments between strangers, they might be executed in France, without any examination of the merits.
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
In the elaborate argument, which M. Merlin delivered before the Court of Cassation, in the case of Spohrer v. Moe, and which he has preserved entire in his Questions de Droit, tit. Jugement, sect. 14, he 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 had been judicially decided under a foreign jurisdiction, had any effect in France, and did not afford any ground or colour, even for the exceptio rei judicata. He maintained, that the law did not distinguish between cases, for that all foreign 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 no avail in France, and the jurisprudence des arrets rejected every such distinction. Whenever this rule had been suspended, it 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 reciprocity to a particular power, such as in the case of the Duke of Lorrain, in 1738. The judgment of the Court of Cassation, 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 Repertoire 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 Laws 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
In that ve
Court of Cassation, in 1819, it was settled upon the authority of the new code civil, No. 2123, and 2128, and of the code de procedure, No. 546, that the ordinance of 1629 no longer applied, and that the codes made no distinction among foreign judgments, and rendered them all executory, or capable of execution in France, after being subject to re-examination; and whoever sought to enforce a foreign judg ment, must show the reasons on which it was founded. tions du Droit, par M. Merlin, tit. Jugement, sect. 14.) ry case, it had been previously decided by the Court of the First Instance, at Paris, in 1815, that a foreign judgment was to be regarded as definitive between strangers, and to be executed in France, without their courts being permitted to take cognizance of the merits The Royal Court of Paris, in 1816, on appeal, decided otherwise, and declared, that foreign judgments had no effect in France, and that the principle was unqualified and absolute, and was founded on the sovereignty and independence of nations, and could be invoked by all persons, subjects and strangers, without distinction. The Court of Cassation, on a further appeal, decided, that they were to be regarded sub modo; they were not to be of any force without a new investigation of the merits, for a blind submission to them would be repugnant to the nature of judicial tribunals, and strike at the right of sovereignty within every independent territory. I have said that the rule was settled in that case, but it seems to be difficult to know when or how the rule on this subject can be deemed settled in France, for the conflict of opinion between their various tribunals, and at different periods of time, is extraordinary. This very question, whether a foreign judgment between two strangers, could receive execution in France without revision or discussion, was raised so recently as January, 1824, before a tribunal, at Paris, between Stacpoole v. Stacpoole and others, and it was decided in the negative, after a discussion on each side, distinguished for depth of learning, and a lustre of eloquence, not to be surpassed. M. Toullier ventures to consider the French jurisprudence, or the droit public of France, as being irrevocably established by the decree of the Court of Cassation, in 1819, and he considers it as resting on sound foundations. Foreign judgments are no longer absolute nullities, since they can be declared executory, after the
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 make 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
In determining what is savitia, by the ecclesiastical law, we find it stated, in Evans v. Evans, 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 weighty, 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 can 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 foreign 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 near to each other on this interesting head of national jurisprudence. They agree perfectly when the foreign judgment 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 Vesey, 532,
b1 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 declared 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 spe 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; 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 due obedience to the
a 1 Haggard, 364. 409. vol. ii. p. 148. Pothier, Trile du Contrat de Mariage, sec. 509. 2 Mass. Rep. 150. 3 Ibid. 321. 4 Ibid 587. b 4 Johns. Ch. Rep. 187.
c Burns' Eccl. Law, tit. Marriage, c. 11. sec. 4. Oughton's Ordo Jud. tit. 215. sec. 3. Bynk. Q. Jur. Priv. 1. 2. c. 8.
d Vanveghten v. Vanveghten, 4 Johns. Ch. Rep. 501.
e Kirkman v. Kirkman, 1 Haggard, 409.