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 contractus 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.

§ 23. Conclusiveness of

sentences

The same reasons which have induced states to give an international effect to testaments, contracts, and other acts inter vivos or causa mortis, have also induced them to give a foreign similar effect to the judicial proceedings of every state where in personal they are drawn in question in the tribunals of another coun- actions. try. But as res adjudicata in one country can have, per se, no effect in another, the conclusiveness of foreign sentences and judgments in personal actions is more or less restrained by the usage of different nations, or by special compact between them.

By the law of England, the judgment of a foreign tribunal Law of of competent jurisdiction is conclusive where the same matter England. comes incidentally in controversy between the same parties, and full effect is given to the exceptio rei judicate 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

American

law.

Law of
France.

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 rea. sons, or upon a palpable mistake of local or foreign law; it will not be enforced by the English tribunals."51

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 obtained; i. è. it has the conclusive effect of a domestic judgment.52

The law of France restrains the operation of foreign judgments within still 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 prima 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.53

51 Knapp's Rep. in the Privy Council, vol. i. p. 274. Frankland v. M'Gusty. Barnwell and Adolphus' Rep. vol. ii. p. 757. Novelli v. Ross, vol. iii. p. 951. Becque v. M‘Carthy.

52 Cranch's Rep. vol. vii. pp. 481-484. Mills v. Duryee. Wheaton's Rep. vol. iii. p. 234. Hampton v. M'Connell.

53 Code Civil, art. 2123, 2128. Code de Procédure Civil, art. 546. Pardessus, Droit Commercial, pt. vi. tit. 7, ch. 2, § 2, No. 1488. Merlin, Ré

divorces.

A decree of divorce, obtained in a foreign country by a Foreign fraudulent evasion of the laws of the state to which the parties belong, would seem, on principle, to be clearly 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 recognise 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."

pertoire, tom. vi. tit. Jugement. Questions de Droit, tom. iii. tit. Jugement. Toullier, Droit Civil Français, tom. x. Nos. 76-86.

54 Dow's Parliament. Cases, vol. i. p. 117. Torey v. Lindsay; p. 124. Lolly's case. See Fergusson's Reports of Decisions in the Consistorial Courts of Scotland, passim.

17

CHAPTER III.

§ 1. Natural

RIGHTS OF EQUALITY.

THE natural equality of sovereign states may be modified equality of by positive compact, or by consent implied from constant states mo- usage, so as to entitle one state to superiority over another in dified by respect to certain external objects, such as rank, titles, and compact and usage. other ceremonial distinctions.

§ 2. Royal ho

nours.

§ 3. Prece

dence

Thus the international law of Europe has attributed to certain states what are called royal honours, 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 honours entitle the states by whom 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

Among the princes who enjoy this rank, the Catholic powers concede the precedency to the pope, or sovereign pontiff; among but Russia, and the Protestant states of Europe consider him princes and states as bishop of Rome only, and a sovereign prince in Italy, and enjoying such of them as enjoy royal honours refuse him the preceroyal hodence.

nours.

The emperor of Germany, under the former constitution of the empire, was entitled to precedence over all other tem

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. Kluber, Droit des Gens Moderne, pt. ii. tit, 1 ch. 3, §§ 91, 92.

poral princes, as the supposed successor of Charlemagne and of the Cæsars in the empire of the west; but since the dissolution of the late Germanic constitution, and the abdication of the titles and prerogatives of its head by the emperor of Austria, the precedence of this sovereign over other princes of the same rank may be considered questionable.2

The various contests between crowned heads for precedence are matter of curious historical research, as illustrative of European manners at different periods; but the practical importance of these discussions has been greatly diminished by the progress of civilization, which no longer permits the serious interests of mankind to be sacrificed to such vain pretensions.

The text writers commonly assigned to what were called the great republics, who were entitled to royal honours, a rank inferior to crowned heads of that class; and the United Netherlands, Venice, and Switzerland, certainly did formerly yield the precedence to emperors and reigning kings, though they contested it with the electors and other inferior princes entitled to royal honours. But disputes of this sort have commonly been determined by the relative power of the contending parties, rather than by any general rule derived from the form of government. Cromwell knew how to make the dignity and equality of the English commonwealth respected by the crowned heads of Europe; and in the different treaties between the French republic and other powers, it was expressly stipulated that the same ceremonial as to rank and etiquette should be observed between them and France which had subsisted before the revolution.3

Those monarchical sovereigns who are not crowned heads, but who enjoy royal honours, concede the precedence on all occasions to emperors and kings.

Monarchical sovereigns who do not enjoy royal honours yield the precedence to those princes who are entitled to these honours.

2 Martens, § 132. Kluber, § 95.

3 Treaty of Campio Formio, art. 23, and of Luneville, art. 17, with Austria. Treaties of Basle with Prussia and Spain.