1. Co. Litt. 235. a.
2. 1 Day's Rep. 111. Benton v. Benton. Dame's Abr, of American Law, ch. xlvi. art. 9. sec. 14.
3.Elliott v. Gurr, 2 Phillimore, 16.
4.Burtis v. Burtis, 1 Hopkins, 557.
5. Droit Civil Francais, tom. 1. No. 525.
6. Laws of N.Y. act of 13th April, 1813. ch. 103.
7. Burns' Eccl. Law, tit. Marriage, sect. 11. Traite de l'Adultere, par. Fournel, p. 160. Baxter v. Baxter, 1 Mass. Rep. 346. Betts v. Betts, 1 Johns. Ch. Rep. 197.
8. Laws of N.Y. act of 13th April, 1813, ch. 102.
9.Mix v. Mix, 1 Johns. Ch. Rep. 204.
10.Williamson v. Parisien, 1 Johns. Ch. Rep. 389.
11.Oughton's ordo Judiciorum, vol. i. tit. 214. Forster v. Forster, 1 Haggard 144. Proctor v. Proctor, 2 Haggard, 292. Chambers v. Chambers, 1 Haggard, 439
12.Oughton's Ordo, ub. supra. Burn's Eccle. Law, tit. Marriage. sec. xi. 1 Ersk. Inst. 113, 114. 6 Mass. Rep. 147. anon. Williamson v. Williamson, 1 Johns. Ch. Rep. 492.
13.Williamson v. Williamson, ub. supra. 2 Phillimore, 161. Best v. Best. 2 Haggard, 313. Mortimer v. Mortimer.
14. Plutarch's Life of Alcibiades. 2 Potter's Greek .Antiq. 296, 297. Taylor's Elements of the Civil Law, 352, 353.
15. Dig. 24. 157. 62. and 64.
16. Dig. 24. 3. 34. and 38.
17. How beautifully Horace recommended the value and continuance of the marriage union, must be familiar to every classical scholar:
Felices ter et amplius, Quos irrupta tenet copula; nec malis Divulsus Querimoniis, Suprema citius solvet amor die.
Lib. 1. car. 13.
18. Suet. ad. Aug. 34.
19. Dict. du Dig. tit. Divorce, No. 617, 618.
20. Nov. 140.
21. Domat. 651. Traite de L'Adultere par Fournel, 366. 370. Traite du Contrat de Mariage, par Pothier, s. 462. 466. 497.
22. Quarterly Review, No. 56. p. 509.
23. Code Napoleon, No. 233, 275 to 297.
24.Voet de Divortiis et Repudiis, s. 5. lib. 24. tit. 2.
25. 1 Blacks. Com. 441.
26. Bracton, fo. 92.
27. Moore, 683. pl. 942. 3 Salk. 138.
28. Georgia and Mississippi.
29. Delaware, Maryland, Virginia, South Carolina, Georgia, Mississippi and Louisiana.
30. South Carolina Equity Reports, vol. i. Int. p. 24. Vol. ii. 646.
31. Maine, Massachusetts, New York, North Carolina, and Illinois.
32. Griffith's Law Register, h. t. 1 New Hamp. Rep 198. Reeve's Domestic Relations, p. 205. Bracken ridge's Law Miscellanies, 421.
33. I have had occasion to believe, in the exercise of a judicial cognizance over numerous cases of divorce, that the sin of adultery was sometimes committed on the part of the husband, for the very purpose of the divorce.
34.Esprit des Loix, tom. 3. 186.
35.Traite du Contrat de Mariage, No. 516.
36. Elem. of the Civil Law, p. 254.
37. 4 Wheaton, 518.
38. Mr. Justice Story.
39.Hopkins v. Hopkins, 3 Mass. Rep. 158. Carter v. Carter, 6 Mass. Rep. 263.
40.Jackson v. Jackson, 1 Johns, Rep. 424.
41. 15 Johns. Rep. 121.
42. 14 Mass, Rep. 227.
43.Fisher v. Lane, 3 Willson, 297. Kilburn v. Woodworth, 5 Johns. Rep. 37. Thurber v. Blackbourne, 1 .N. H. Rep. 242. Aldrick v. Kinney, 4 Conn. Rep. 380.
44.Dutchess of Kingston's case, Harg. St. Tri. vol. xi. 262. 1 Haggard, 290.
45. See vol. i. 244.
46. 1 Dow's P. C. 124, 136.
47. Fergusson's Reports of Decisions in the Consistorial Court of Scotland, in actions of divorce, p. 23.
48.Duntze v. Levett, Fergusson, p. 68.
49.Edmonstone v. Lockhart, Fergusson, p. 168.
50. Fergusson, p. 209.
51. Fergusson, p. 226.
52. Fergusson, p. 2769.
53. 1 Dow's Rep. 117.
54. Note to 2 Swanston, 542, from Lord Nottingham's MSS.
55. 1 Rol Abr. 530. pl. 12.
56. Cited in the case of The Dutchess of Kingston, 11 State Tr. by Harg. 222.; and also in Galbraith v. Neville, Doug. Rep. 5. note. See also, Lord Kenyon's opinion in this latter case, 5 East, 475. note.
57.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 Dow. Par. Cases, 314.
58. Vattel, b. 2. c. 7. s. 84, 85. Martens' Summary of the Law of Nation's, b. 3. c. 3. s. 20. Ersks, Inst. of Scots. Law, vol. ii. 735. Kame's Pr. of Equity, vol. ii. 366.
59.Hitchcock & Fitch v. Aitkin, 1 Caines' Rep. 460. 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.
60.Croudson v. Leonard, 4 Cranch's Rep. 434.
61. 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.
62. 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 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 rendered.
Emerigon, (Traite des Ass. ch. iv. sect. 8. ch. xii. sect. 20 ) said, that the rule applied equally in favor 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 color, even for the exceptio rei judicatae. He maintained, that the law did not distinguish between cases, for that all foreign judgments, whoever might be the parties, whether in favor 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 Cessation, 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 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 judgement, must show the reasons on which it was founded. (Vide Questions du Droit, par M. Merlin, tit. Jugement, sect. 14.) In that very 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 luster 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 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.
63. Laws of N.Y. sess. 36. ch. 102. sect. 10, 11.
64. Lord Eldon, 11 Vesey, 532.
65. 1 Haggard, 35.
66. 1 Haggard, 364. 409. vol. ii. p. 148. Pothier, Traite du Contrat de Mariage, sec. 509. 2 Mass. Rep. 150. 3 Ibid. 321. 4 Ibid. 587.
67. 4 Johns. Ch. Rep 187.
68. Burns' Eccl. Law, tit. Marriage, c. 11. sec. 4. Oughton's Ordo Jud. tit. 215. sec. 3. Bynk. Q. Jur. Priv. L. 2. c. 8.
69.Vanveghten v. Vanveghten, 4 Johns. Ch. Rep. 301.
70.Kirkman v. Kirkman, 1 Haggard, 409.
71. 1 Salk. 123.
72. Burns' Eccl. Law. tit. Marriage, ch. 11. sec. 4. Barrere v. Barrere, 4 Johns. Ch. Rep. 196, 198. Vanveghten v. Vanveghten, ibid. p. 501.
73. 2 Haggard, 154.
74. Laws of N.Y. sess. 36. ch. 102. s. 11. sess. 38. ch. 221. Barrere v. Barrere, 4 Johns. Ch. Rep. 197.
75. Reeves' Domestic Relations, ch. 16. Thompson v. Thompson, 2 Dallas 128. Warren v. Warren, 8 Mass. Rep. 321.
