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The whole order of society would be disjointed, were the positive institutions of foreign nations concerning the domestic relations admitted to operate universally, and form privileged casts living each under separate laws. Though marriage, contracted according to the lex loci, be valid all the world over, yet many of its rights and duties are regulated and enforced by public law, which is imperative on all who are domiciled within its jurisdiction. The laws of divorce are considered as of the utmost importance as public laws, affecting the dearest interest of society; and they are not to be relaxed as to a person domiciled in Scotland, because his marriage was contracted out of it. If two natives of Scotland were married in France or Prussia, the marriage would be valid in Scotland; but would the parties be entitled to come into court and insist on a divorce a binculo, because their tempers were not suitable, or for any of the great variety of whimsical and absurd grounds for a divorce allowed by the Prussian code of 1795? Certainly not; and the conclusion was, that the law of divorce must be governed by the law of Scotland, whenever the party was sufficiently domiciled there to enable the court to sustain jurisdiction of the cause.
I have thus given, for the benefit of the student, a pretty enlarged view of the discussions in Scotland, on this great question, touching the power of divorce in one country upon marriage in another. The same question was brought up on appeal from Scotland, to the House of Lords in England, in 1813, in the case of To»ey v. Lindsey;» and Lord Eldon there stated the decision of the twelve judges to have been, that no English marriage could be dissolved but by parliament. The question in the case was, whether an English marriage could be dissolved by a Scotch court, even *if the parties *117 were sufficiently domiciled there to found a juris
diction of the case. The lord chancellor admitted it to be a question of the highest importance; and Lord Redesdale intimated, that it could not be just, that one party should be able, at his option, to dissolve a contract, by a law different from that under which it was formed, and by which the other party understood it to be governed. The case was remitted back for review, without any final decision in the English House of Lords; but the opinions of Lord Eldon and Lord Redesdale evidently agreed with the decision of the twelve judges at Westminster, and went to deny the competency of any court to pronounce a decree of divorce a vinculo of English marriages, or to pronounce any other decree in the case than such as would be warranted by the lex loci contractus.*
* In Conway v. Beazley, 3 Hagg. Ecel. Rep. 639, in the consistory court of London, Dr. Lushington considered it to be still an unsettled question, whether a Scotch divorce of a marriage in England would be necessarily, and under all circumstances, invalid in England, if the parties were at the time actually and bona fide domiciled in Scotland. But he followed the decision in Lolly's case, (supra, p. 110,) and held, that a Scotch divorce a vinculo from an English marriage, between parties domiciled in England at the time of such marriage, was null. Mr. Prater, in his Treatise on the " Cases illustrative of the Conflict between the Laws of England and Scotland, with regard to marriage, divorce and legitimacy" (London, 1835,) concludes, that the laws of England and Scotland ought to be assimilated by enabling the English ecclesiastical courts to dissolve marriages for adultery, and to disallow the plea of recrimination as a bar to the suit, and not to permit desertion to be a cause of divorce in Scotland. He further proposes to abolish the law of legitimation in Scotland. The conclusion on this vexed subject to which Mr. Burge arrives, after an able consideration of the question in his Commentaries on Colonial and Foreign Laws, vol. i. 680—691, is, that the lex loci contractus ought to be invoked) when the question is whether a marriage was in the first instance valid in law, and that the appropriate law by which the dissolubility of the marriage is to be determined, ought to be that of the actual domicil.
This great question has at last been settled in the English House of Lords in conformity with the principle of the Scotch decisions. In Warrender v. Warrender, 2 Skaw d> ST Lean, 189. 9 Bligh. 89, decided in the court of session in Scotland, the husband was a native of Scotland where he continued to retain his domicil. He married in England an Enlish woman, and for adultery committed by the wife in France, he sued in
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
th« Scotch court for a divorce, and the court held that they had jurisdiction over the case and dissolved the marriage, and the decision was affirmed on appeal to the House of Lords in 1837. Lord Chancellor Brougham, in his opinion delivered in the House of Lords in that case, observed that Lolly's case only settled that an English marriage could not be dissolved for English purposes, by any proceeding in a foreign jurisdiction, and that the divorced party would still be entitled to the rights and subject to the disabilities of a married person in England. But he held that Lolly's case was not founded on sound principles, and that there was an irreconcilable inconsistency in the proposition that the Scotch law was all powerful to make a valid marriage and utterly incompetent to dissolve it, and that if the courts could recognize the foreign law as to the creation, they ought equally as to the rescission of the contract of marriage. The decision of the lords in this case essentially overruled Lolly's case, and settled that Scotch courts have jurisdiction in divorce, when the domicil has been acquired, without having regard to the native country of the parties, or of their marriage. The decision, and the order for a re-argument 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. Doreey, 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 every thing 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. Magnire, 7 Dana's Rep. 181.
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 intercourse and commerce *118 of mankind, that acts valid *by the law of the
place where they arise, are valid everywhere, 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 affecting 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 exdirecto, 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 1
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.11
(3) Effect of foreign judgments and suits.
1. Foreign judgments.
In cases not governed by the constitution and laws of the 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 transactions in the course of business, as the subjects to which *they *119 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 connexion 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 Notting
• In Tolen v. Tolen, 2 Blaekf. Ind. Rep. 407, a divorce a einculo 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 amnio 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.