Obligation

§ 145. The obligation of the contract consists of the will of a contract. of the parties, expressed as to its terms and conditions. The interpretation of these depends, of course, upon the lex loci contractûs, as do also the nature and extent of those implied conditions which are annexed to the contract by the local law or usage. Thus the rate of interest, unless fixed by the parties, is allowed by the law as damages for the detention of the debt, and the proceedings to recover these damages may strictly be considered as a part of the remedy. The rate of interest is, however, regulated by the law of the place where the contract is made, unless, indeed, it appears that the parties had in view the law of some other country. In that case, the lawful rate of interest of the place of payment, or to which the loan has reference, by security being taken upon property there situate, will control the lex loci contractûs. (a)

Form of a contract.

§ 146. The external form of the contract constitutes an essential part of its obligation.

This must be regulated by the law of the place of contract, which determines whether it must be in writing, or under seal, or executed with certain formalities before a notary, or other public officer, and how attested. A want of compliance with these requisites renders the contract void ab initio; and being void by the law of the place, it cannot be carried into effect in any other State. But a mere fiscal regulation does not operate extra-territorially; and therefore the want of a stamp, required by the local law to be impressed on an instrument, cannot be objected where it is sought to be enforced in the tribunals of another country.

There is an essential difference between the form of the contract and the extrinsic evidence by which the contract is to be proved. Thus, the lex loci contractûs may require certain contracts to be in writing, and attested in a particular manner, and a want of compliance with these forms will render them entirely void. But if these forms are actually complied with, the extrinsic evidence, by which the existence and terms of the contract are to be proved in a foreign tribunal, is regulated by the lex fori.

in America. It was formerly confounded with the question of liability to personal actions. Story's Conflict of Laws, § 571. Henry on For. Law, 81-86. Westlake, Pr. Intern. Law, § 411.]-D.

(a) Kent's Comm. on American Law, ii. 459, 5th edit. Fölix, Droit International Privé, § 85.

Conclusiveness of foreign

§ 147. The most eminent public jurists concur in asserting the principle that a final judgment, rendered in a personal action, in the courts of competent jurisdiction judgments in personal of one State, ought to have the conclusive effect of a res actions. adjudicata in every other State, wherever it is pleaded in bar of another action for the same cause. (a)

But no sovereign is bound, unless by special compact, to execute within his dominions a judgment rendered by the tribunals of another State; and if execution be sought by suit upon the 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. (b) 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. (c)

§ 148. By the law of England, the judgment of a foreign Law of tribunal, of competent jurisdiction, is conclusive where the England. same matter comes incidentally in controversy between the same parties; and full effect is given to the exceptio rei judicata, where it is pleaded in bar of a new suit for the same cause of action. A foreign judgment is prima 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 proceeded 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. (a)

(a) Vattel, liv. ii. ch. 7, §§ 84, 85. Martens, Droit des Gens, §§ 93, 94, 95. Klüber, Droit des Gens, § 59. Deutsche Bundes Recht, § 366.

(b) Kent's Comm. ii. 119, 5th edit.

(c) Fölix, §§ 292-311.

(a) Knapp's Rep. in the Privy Council, i. 274, Frankland v. McGusty; Barnewall & Adolphus's Rep. ii. 757, Novelli v. Rossi; Ib. iii. 951, Becquet v. M'Carthy.

American § 149. The same jurisprudence prevails in the United law. 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 obtained; that is, it has the conclusive effect of a domestic judgment. (a)

Law of France.

§ 150. The law of France restrains the operation of foreign judgments within narrower limits. Judgments obtained 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 judgment 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 primâ 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. (a)

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. (b)

§ 151. A decree of divorce obtained in a foreign counForeign divorces. try, by a fraudulent evasion of the laws of the State to which the parties belong, would seem, on principle, to be clearly

(a) Cranch's Rep. vii. 481-484, Mills v. Duryee. Wheaton's Rep. iii. 234, Hampton v. M'Connel.

(a) Code Civil, arts. 2123, 2128. Code de Procédure Civile, art. 546. Pardessus, Droit Commercial, Part 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.

(b) Fölix, Droit International Privé, §§ 293-311.

void in the country of their domicil, 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 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 bonâ fide permanent domicil 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. (a)%

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. (b)97

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 originally contracted. (c) This, of course, excludes such divorces as are

(a) Dow's Parliamentary Cases, i. 117; Tovey v. Lindsay, 124. Lolly's Case. See Fergusson's Reports of Decisions in the Consistorial Courts of Scotland, passim. [ By Act 20 & 21 Vict. 85, divorces à vinculo may now be granted in England by a court established for the purpose.]-D.

(b) Warrender v. Warrender, Bligh's Rep. ix. 89. S. C., Clark & Finnelly's Rep.

ii. 488.

[ Story's Conflict of Laws, §§ 200-227. Fergusson on Marriage and Divorce, 383-422, 283-319, 350-356. Heffter, Europ. Völker. § 37. Westlake's Pr. Intern Law, § 350.]—D.

(c) Dorsey v. Dorsey, Chandler's Law Reporter, i. 287.

obtained in fraudulent evasion of the laws of one State, by parties removing into another for the sole purpose of procuring a divorce. (d)98

CHAPTER III.

Natural

equality of

RIGHTS OF EQUALITY.

§ 152. THE natural equality of sovereign States may States modi- be modified by positive compact, or by consent implied fied by com- from constant usage, so as to entitle one State to superiority over another in respect to certain external objects

pact or usage.

such as rank, titles, and other ceremonial distinctions.

Royal honors.

§ 153. 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, as 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. (a)

(d) Kent's Comm. ii. 107, 5th edit.

[98 Story's Conflict of Laws, §§ 228-230 e. It has never been held in the United States, that a divorce can be granted in a State in which the parties have acquired a domicil, for a cause which is sufficient by the law of that State, but not sufficient by the law of the State in which the parties were domiciled at the time of the alleged act done; nor have divorces obtained ex parte in a State where the petitioner has acquired a domicil, been held valid when granted for an alleged cause occurring in another State, and where the party petitioned against has not actually resided in the State of the forum. Story's Conflict of Laws, §§ 206-230 d, and cases there cited.]-D.

(a) 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, Part II. tit. 1, ch. 3, §§ 91, 92. Heffter, Europ. Völker. § 28.