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Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Law Concerning Divorce
WHEN a marriage is duly made, it becomes of perpetual obligation, and cannot be renounced at the pleasure of either or both of the parties. It continues, until dissolved by the death of one of the parties, or by divorce.
By the ecclesiastical law, a marriage may be dissolved, and declared void ab initio, for canonical causes of impediment, existing previous to the marriage. Divorces a vinculo matrimonii, said Lord Coke,1 are causa praecontractus, causa metus, causa impotentiae seu frigiditatis, causa affinitatis, causa consanguinitatis. We have seen how far a marriage may be adjudged void, as being procured by fear or fraud, or contracted within the forbidden degrees. The courts in Massachusetts are authorized by statute to grant divorces causa impotentiae; and in Connecticut, imbecility has been adjudged sufficient to dissolve a marriage, on the ground of fraud.2 The canonical disabilities, such as consanguinity, and affinity, and corporeal infirmity, existing prior to the marriage, render it voidable only, and such marriages are valid for all civil purposes, unless sentence of nullity be declared in the lifetime of the parties; and it cannot be declared void for those causes after the death of either party. But the civil disabilities, such as a prior marriage, want of age, or idiocy, make the contract void ab initio, and the union meretricious.3 In this state, it has been recently adjudged,4 that corporeal impotence is not, under our existing laws, a cause of divorce, and that the English law of divorce on that point has never been adopted. The new French code is silent on this point; and Toullier5 condemns a decree of divorce causa impotentiae, which was pronounced in France in 1808, as contrary to the spirit of the code, and leading to scandalous inquiry.
During the period of our colonial government, for more than one hundred years preceding the revolution, no divorce took place in the colony of New York; and for many years after we became an independent state, there was not any lawful mode of dissolving a marriage in the lifetime of the parties, but by a special act of the legislature. This strictness was productive of public inconvenience, and often forced the parties, in cases which rendered a separation fit and necessary, to some other state, to avail themselves of a more easy and certain remedy. At length, the legislature, in 1787, authorized the Court of Chancery to pronounce divorces a vinculo, in the single case; of adultery, upon a bill filed by the party aggrieved. As the law now stands, a bill for a divorce for adultery, can be sustained in two cases only: (1.) If the married parties are inhabitants of this state, at the time of the commission of the adultery: (2.) If the marriage took place in this state, and the party injured be an actual resident at the time of the adultery committed, and at the time of filing the bill. If the defendant answers the bill,6 and denies the charge, a feigned issue is to be awarded, under the direction of the Chancellor, to try the truth of the charge before a jury, in a court of law. Upon the trial of the issue, the fact must be sufficiently proved by testimony, independent of the confession of the party; for, to guard against all kind of improper influence, collusion, and fraud, it is the general policy of the law on this subject, not to proceed solely upon the ground of the confession of the party to a dissolution of the marriage contract. The rule that the confession of the party was not sufficient, unless supported by other proof, was derived from the canon law, and arose front the jealousy that the confession might he extorted, or made collusively, in order to furnish means to effect a divorce.7
If the defendant suffers the bill to be taken pro confesso, or admits the charge, it would be equally dangerous to act upon that admission of the bill, and the statute therefore directs that the case be referred to a master in chancery, to take proof of the adultery, and to report the same, with his opinion thereon. If the report of the master, or the verdict of the jury, as the case may be, shall satisfy the Chancellor of the truth of the charge of adultery, he is then to decree a dissolution of the marriage; but this dissolution is not to affect the legitimacy of the children; and the defendant, by way of punishment for the guilt, is disabled from re-marrying during the life of the other party.8
The statute further provides, that if the wife be the complainant, the court is to make a suitable allowance in sound discretion out of the defendant’s property, for the maintenance of her and her children, and to compel the defendant to give reasonable security to abide the decree, by the sequestration of his estate. The Chancellor is also to give to the wife, being the injured party, the absolute enjoyment of any real estate belonging to her, or of any personal property derived by title through her, or acquired by her industry. If, on the other hand, the husband be the complainant, then he is entitled to retain the same interest in his wife’s real estate, which he would have had, if the marriage had continued; and be is also entitled to her personal estate and choses in action which she possessed at the time of the divorce, equally as if the marriage had continued; and the wife loses her title to dower, and to a distributive share in the husband’s personal estate.
These are all the statute provisions in this state on the subject of a divorce a vinculo matrimonii; and it has been decided, that if the marriage was solemnized out of the state, it must distinctly and certainly appear upon the bill, that both parties were inhabitants of the state at the time of the commission of the adultery, and this was held necessary to give the court jurisdiction.9 It must also appear, if the parties were married within the state, that the complainant was an actual resident at the time of the offense, and of bringing the suit; and this means, that the party’s domicile was here, or that he had fixed his residence animo manendi.10 It has also been adjudged, that though the fact of adultery be made out, it does not follow, as a matter of course, that a divorce is to be awarded, for the remedy by divorce is purely a civil and private prosecution, under the control, and at the volition of the party aggrieved, and he may bar himself of the remedy by his own act. Neither party can obtain a divorce for adultery, if the other party recriminates, and can prove a correspondent infidelity. The delictum, in that case, must be of the same kind, and not an offense of a different character. The compensatio criminis is the standard canon law of England in all cases of divorce, and the same principle, it is to be presumed, prevails in these United States.11 So, if the husband, subsequently to the adultery, cohabits with his wife, after just grounds of belief in her guilt, it is, in judgment of law, a remission of the offense, and a bar to the divorce. This is a general principle every where pervading this branch of jurisprudence.12 It is also well established, that lapse of time, or a long tacit acquiescence of the husband in his wife’s infidelity, even without cohabitation, but without any disability on his part to prosecute, will be deemed equivalent to a condenatio injuriae, and bar a prosecution for a divorce, unless the delay be satisfactorily accounted for. The husband is not to be permitted, at any distance of time, to agitate such inquiries, and especially where his tacit acquiescence continued after his wife had formed another matrimonial connection, and he slumbered in uncomplaining silence, until she became the mother of a new race of children.13
The policy of this state has been against divorces from the marriage contract, except for adultery. We meet with a great variety of practice and opinion on this subject, in this country and in Europe, and among ancient and modern nations; but the stringer authority, and the better policy, are in favor of the stability of the marriage union. The ancient Athenians allowed divorces with great latitude, but they were placed under one important check, for the party suing for a divorce was obliged to appeal to the magistrate, state the grounds of complaint, and submit to his judgment. It was a regular action, analogous in substance to a bill in Chancery; and if the wife was the prosecutor, she was obliged to appear in person, and not by a proctor.14 The graver Romans permitted the liberty of divorce to a most injurious and shameful degree. Either party might renounce the marriage union at pleasure. It was termed divortium sine causa, or sine ulla querela; and the principle is solemnly laid down in the pandects, that bona gratia matrimonium dissolvitur.15 We find the Roman lawyers, discussing questions of property depending upon these voluntary divorces, or in which Titia divortium a Seio fecit. Moevia Titio repudium misit.16 This facility of separation tended to destroy all mutual confidence, and to inflame every trifling dispute. The abuse of divorce prevailed in the most polished ages of the Roman republic, and it was unknown in its early history. Though the twelve tables gave to the husband the freedom of divorce, yet the republic had subsisted 500 years when the first instance of a divorce occurred.17 The Emperor Augustus endeavored by law to put some restraint upon the facility of divorce;18 but the check was overpowered by the influence and corruption of manners. Voluntary divorces were abolished by one of the novels of Justinian, and they were afterwards revived by another novel of the Emperor Justin.19 In the novel restoring the unlimited freedom of divorce, the reasons for it are assigned; and while it was admitted, that nothing ought to be held so sacred in civil society as marriage, it was declared, that the hatred, misery, and crimes, which often flowed from indissoluble connections, required as a necessary remedy, the restoration of the old law, by which marriage was dissolved by mutual will and consent.20 This practice of divorce is understood to have continued in the Byzantine or eastern empire, to the 9th or 10th century, and until it was finally subdued by the influence of Christianity.
In modern Europe, divorces were not allowed in the Roman Catholic countries, because marriage was considered a sacrament, and held indissoluble during the life of the parties. This was formerly the case in France;21 and it was the general doctrine in the Latin, though not so either in the Greek or Protestant churches. But the French revolution, like a mighty inundation, swept away at once the laws and usages of ages; and, at one period, the French government seemed to have declared war against the marriage contract, and six thousand divorces are said to have taken place in the city of Paris in the space of two years and three months.22 The code Napoleon regards marriage only as a civil contract, and allows divorces not only for several reasonable causes, such as adultery, and grievous injuries, to be submitted to a judicial tribunal, but also without cause, and founded merely upon mutual consent, according to the usage of the ancient Romans. This consent is subjected to several restraints which do in fact create very great and serious checks upon the abuse of the privilege.23 By the Dutch law there are but two just causes of divorce a vinculo, viz. adultery and malicious desertion;24 and, by the English law, a marriage, valid in its commencement, cannot be dissolved for any cause without an act of parliament.25 This was not the case in England anciently;26 and until the 44th Eliz. divorces a vinculo were allowed for adultery. But in Foliamb’s case, 44 Eliz., it was held, in the Star Chamber, that adultery was only a cause of divorce a mensa et thoro,27 and the Archbishop of Canterbury said, in that case, it had been so settled before him, on appeal, by many divines and civilians.
In some of the United States,28 divorces are restrained, even by constitutional provisions, which require to every valid divorce, the assent of two thirds of each branch of the legislature, founded on a previous judicial investigation and decision. The policy of other states is exceedingly various on this subject. In several of them,29 no divorce is granted, but by a special act of the legislature, according to the English practice; and so strict and scrupulous has been the policy of South Carolina, that there is no instance in that state, since the revolution, of a divorce of any kind, either by the sentence of a court of justice, or by act of the legislature.30 In all the other states, divorces a vinculo may be granted judicially for adultery. In some of them,31 the jurisdiction of the courts as to absolute divorces, for causes subsequent to the marriage, is confined to the single case of adultery; but in the residue of the states, intolerable ill usage, or wilful desertion, or unheard of absence, or some of them, will authorize a decree for a divorce a vinculo, under different modifications and restrictions.32
It is very questionable, whether the facility with which divorces can be procured in some of the states, be not productive of more evil than good. It is doubtful, whether even divorces for adultery do not lead to much fraud and corruption.33 Some of the jurists are of opinion, that the adultery of the husband, ought not to be noticed, or made subject to the same animadversion as that of the wife; because it is not evidence of such entire depravity, nor equally injurious in its effects upon the morals, and good order, and happiness of domestic life. Montesquieu,34 Pothier,35 and Dr. Taylor,36 all insist, that the cases of husband and wife ought to be distinguished, and that the violation of the marriage vow, on the part of the wife, is the most mischievous, and the prosecution ought to be confined to the offense on her part.
It may become a question of some difficulty with us, how far a divorce in one state is to be received as valid in another. The first inquiry is, how far has the legislature of a state the right, under the constitution of the United States, to interfere with the marriage contract, and allow of divorces between its own citizens, and within its own jurisdiction. The question has never been judicially raised and determined in the courts of the United States, and it has generally been considered that the state governments have complete control and discretion in the case. In the cause of Dartmouth College v. Woodward,37 the point was incidentally alluded to; and the Chief Justice observed, that the constitution of the United States had never been understood to restrict the general right of the legislatures of the states, to legislate on the subject of divorces; and the object of state laws of divorce was to enable some tribunal, not to impair a marriage contract, but to liberate one of the parties, because it had been broken by the other. It would be in time to inquire into the constitutionality of their acts, when the state legislatures should undertake to annul all marriage contracts, or allow either party to annul it at the pleasure of the other. Another of the judges of the Supreme Court38 spoke to the same effect. He said, that a general law, regulating divorces, was not necessarily a law impairing the obligation of such a contract. A law, punishing a breach of a contract, by imposing a forfeiture of the rights acquired under it, or dissolving it, because the mutual obligations were no longer observed, was not a law impairing the obligation of contracts. But he was not prepared to admit a power in the state legislatures to dissolve a marriage contract without any cause or default, and against the wish of the parties, and without a judicial inquiry to ascertain the breach of the contract.
Assuming, therefore, that in ordinary cases the constitutionality of the laws of divorce, in the respective states, is not to be questioned, the embarrassing point is, to determine how far a divorce in one state has a valid operation in another. There can be no doubt, that a divorce of the parties who were married, and regularly domiciled, at the time, in the state whose courts pronounced the divorce, would be valid every where. The difficulty is, when the husband and wife were married, and reside in a state where divorces are not permitted at all by the policy of its law, or not permitted to the extent and for the causes allowed to operate in other states; and they, or one of them, remove into another state for the sole and express purpose of procuring a divorce, and, having obtained it, return into their native state, and contract other matrimonial ties. How arc the courts of the state where the parties had their home, to deal with such a divorce? When a divorce was sought in such a case, the courts in Massachusetts very properly refused to sustain a libel for a divorce, and sent the parties back to seek such relief as the laws of their own domicile afforded.39 The Supreme Court of this state has refused to assist a party who had thus gone into another state, and obtained a divorce on grounds not admissible here, and procured in evasion of our laws. They would not sustain an action for alimony founded on such a divorce.40 Afterwards, in Borden v. Fitch,41 the sane court held a divorce in another state, obtained by the husband when the wife resided out of the state, and had no notice of the proceeding, to be null and void; because, the court pronouncing the divorce had no lawful jurisdiction of the case when they had none over the absent wife. They considered it to be a judgment obtained upon false and fraudulent suggestions. So, also, in Hanover v. Turner,42 the Supreme Court in Massachusetts held a divorce in another state to be null and void, as having been fraudulently procured by one of their citizens, without a change of domicile. There is no doubt of the rule, that the allegation that a foreign judgment was obtained by fraud is admissible, and, if true, it will destroy its effect. All judgments rendered any where against a party who had no notice of the proceeding, are rendered in violation of the first principles of justice, and are null and void.43 Sentences obtained by collusion are there nullities, and all other courts may examine into facts upon which a judgment has been obtained by fraud. Every party is at liberty to show, that another court was imposed on by collusion.44 The question is, whether, if such a divorce be procured in another state, by parties submitting to the jurisdiction, and after a fair investigation of the merits of the allegations upon which the decree was founded, such a decree be entitled to be received as valid and binding upon the courts of the native state of the parties. A graver question cannot arise under this title in our law.
The locus delicti may not be important in the jurisprudence of the states. It is not material in this state, provided the marriage was solemnized here. The effect that the constitution and laws of the United States have on the question, has not been judicially decided; but it is settled, that the judgment. of a state court is to have the same faith and credit in every other court in these United States, which it has in the courts of the state in which it was pronounced.45 According to the doctrine of the decisions in the federal courts, it may be contended, that a divorce in one state, judicially conducted and declared, and procured under circumstances which gave to the court full jurisdiction of the cause, and of the parties, and sufficient to render the divorce valid and binding there, would be good and binding in every other state; and yet it is evident, that the domestic policy of one state, on this very interesting subject of divorce, may in this way be exposed to be greatly disturbed by a different policy in another state. It is my duty, in this place, to leave this question as I find it; but if such a decree will operate and conclude the question in every state, we are at least relieved from that alarming and distressing collision which exists between the judicatures of England and Scotland on this subject; and the appeal must be made to the mutual comity, moderation, and forbearance of the legislatures of the several states, in their respective regulations on the subject of divorce. The twelve judges of England decided, in 1812, in Lolly’s case, that as by the English law a marriage was indissoluble, a marriage contracted in England could not be dissolved in any way except by act of Parliament.46 The party in that case was convicted of bigamy for marrying again after a Scotch divorce; and, consequently, all foreign divorces of English marriages were held to be null and void. I presume that such a decision will not be considered as law here, as between the several states. But supposing a marriage here is dissolved abroad, as in Scotland or France, for instance, for causes not admissible with us, how would such a divorce affect a marriage solemnized here? A short examination of some of the cases discussed in England and Scotland on this litigious subject, may be useful and instructive. The conflictus legum is the most perplexing and difficult title of any in the jurisprudence of public law.
In Utterton v. Tewsh,47 the marriage was in England, and the husband afterwards committed adultery, and abandoned his wife, and went to Scotland, and resided there above forty days, living in adultery. The wife sued for a divorce a vinculo, in the Consistorial Court in Scotland, in 1811, and the court dismissed the bill, on the ground that the husband had not formed a real and permanent domicile in Scotland, so as to give the court jurisdiction. Here was an English marriage by English parties, who had not changed their original English domicile, and if they had, the judges doubted whether, according to jure gentium, the lex loci contractus ought not to be preferred. There was great danger of collusion of English parties to obtain a divorce a vinculo in Scotland, in opposition to the English law, which does not allow such divorces; and if decrees night be obtained in Scotland, which would be invalid in England, a distressing collision would arise, and dangerous questions touching the legitimacy of children by a second marriage, and the rights of succession, and the crime of bigamy.
But the decree of the Consistorial Court was reversed on appeal, and the cause was remanded to that court, and they, accordingly, proceeded upon the bill for a divorce, and pronounced a divorce a vinculo for the adultery charged. Lord Meadowbank, in pronouncing the decree of reversal in the Supreme Court of Review, delivered a learned and powerful opinion. He observed, that the relation of husband and wife was acknowledged jure gentium, and the right to redress wrongs incident to that relation attached on all persons living within the territory, though the marriage was celebrated elsewhere. It was not necessary that the foreigners should have acquired a domicile animo remanendi; and if the law refused to apply its rules to these domestic relations, recognized by all civilized nations, Scotland could not be deemed a civilized country; as thereby it would permit a numerous description of persons to traverse it, and violate with impunity all the obligations of domestic life. If it assumed jurisdiction, and applied, not its own rules, but the law of the foreign country where the relation had been created, the supremacy of the law of Scotland, within its territory, would be compromised, and powers of foreign courts unknown to the law usurped and exercised. A domicile was of no consequence, if the foreigner was to be personally cited, or his residence sufficiently ascertained. If the wife who prosecuted was innocent of any collusion, it was no bar to the remedy, that the husband came to Scotland and committed adultery, with a calculation that it would be detected by the wife, or that he came to Scotland with the criminal intent of instigating his innocent wife to divorce him.
In the next case that came before the Consistorial Court, in 1816,48 the parties married, and lived in England, and the husband deserted his wife, committed adultery, and domiciled himself in Scotland. The judges did not concur in their views of the subject. Two of them held, that the husband was sufficiently domiciled in Scotland to give jurisdiction, but that the law of England, which was the locus contractus, ought to govern, upon principles of comity and international law, and not the lex domicilii. They were, therefore, of opinion, that the divorce for the adultery should be only a mensa et thoro. The other two judges thought that the domicile was not changed, and therefore a divorce a vinculo could not be pronounced. On appeal, the Court of Session remanded. the cause for the purpose of inquiry into the fact of domicile. The Consistorial Court then held, that the real English domicile of the husband was not changed by being a weekly lodger in Scotland for eighteen months, and that a change of the real domicile made bona fide et animo remanendi, at the date of the action, was necessary, for the purpose, not, indeed, of jurisdiction, but to determine whether the rule of the lex loci, upon principles of international law, did or did not apply. The rule of judgment must be the lex loci, as there was no change of the real English domicile, and, therefore, a divorce a mensa et thoro, and none other, was pronounced. But on appeal this decree was also reversed by the Court of Session, and the court below ordered to render a decree of divorce a vinculo.
A third case was decided in 1816.49 The marriage was in England; but the parties lived and cohabited together in Scotland, for eight years, and the adultery was committed there. The question was not one of domicile, for that was too clear to be questioned, but it was the general and broad question, whether the lex loci contractus, or the law of the domicile, was to govern in pronouncing the divorce. Two of the judges were for following the law of the domicile, and rendering a divorce a vinculo, and the other two were for the lex loci, and granting only a divorce a mensa. But the court of review reversed this decree also, and directed the cause to proceed upon the law of Scotland.
In Butler v. Forbes, decided in 1817,50 the marriage was in Scotland; but the real domicile of the parties was in Ireland. The adultery was committed in Scotland, during a transient visit there. The consistory court held, that the law of the real domicile must prevail over the law of the contract. The locus delicti was immaterial, but the law of the real domicile was the governing principle, and they refused any other than a divorce a mensa. The court of review reversed this decree also, and directed a divorce a vinculo.
In Kibblewhite v. Rowland, in 1816,51 the parties were English, and married, and domiciled in England; but the defendant had committed adultery on a visit to Scotland, and his wife sued him for a divorce. The Consistorial Court. held, that both the law of the contract and the law of the domicile were against a divorce a vinculo, and they refused it. This decree was also reversed, and the usual divorce a vinculo directed.
I will cite but one more of these Scotch decisions, in which the subject is discussed in a very masterly manner. The case of Gordon v. Pye, was decided in the Consistorial Court, in 1815.52 The parties were English, and married in England, and resided there during the whole period of cohabitation. The husband deserted his wife, and transiently transferred his domicile to Scotland, and committed adultery there. The Court dismissed the bill, on the principle that the lex loci contractus must govern, as the permanent domicile was still in England, and a divorce a vinculo could not be obtained. The court insisted, that by the jus gentium, courts in one country cannot set aside contracts valid in another country where they were made. A temporary residence, raised for the purpose of jurisdiction, would be in fraudem legis. The lex loci is the sound rule of decision in respect to marriage contracts; and the courts of one country ought not to be converted into engines for either eluding the laws of another, or determining matters foreign to their territory. The lex loci ought to prevail over the lex domicilii on just principles of international policy, as the marriage contract is jure gentium. All Christian states favor the perpetuity of marriage, and suspicion, and alarm watch every step to dissolve it, and the plaintiff was entitled ex comitate, and upon principles of international Jaw, to the same measure of redress she would be entitled to in England, and especially when the lex loci contractus, and the lex domicili, both concurred. To grant such divorces contrary to the lex loci, would be to invite foreigners to come to Scotland and commit adultery for the sake of the divorce, and this would hurt the public morals, and pollute a jurisdiction constituted to act in evident hostility to the laws and the policy of other states.
But the Court of Session reversed the decree, in opposition to all this reasoning and doctrine; and they insisted that the relation of husband and wife, wherever originally constituted, was entitled to the same protection and redress as to wrongs committed in Scotland, that belong of right to that relation by the law of Scotland. By marrying in England, the parties do not become bound to reside for ever in England, or to treat one another in every other country according to the provision of the law of England. To redress the violation of the duties and abuse of the powers of the marriage state, belongs to the law of the country where the parties reside, and to which they contract the duties of obedience, whenever they enter its territories. There is nothing in the will of the parties that gives the lex loci any particular force over the marriage contract, or that impedes the course of the jus publicum, in relation to it; and it would be no objection to a divorce, at the instance of a Roman Catholic, that his marriage was, as to him, a sacrament, and by its own nature indissoluble. Other contracts are modified by the will of the parties, and the lex loci becomes essential; but not so with matrimonial rights and duties. Unlike other contracts, marriage cannot be dissolved by mutual consent; and it subsists in full force, though one of the parties should be for ever rendered incapable, as in the case of incurable insanity, from performing his part of the nuptial contract. Matrimonial obligations are juris gentium, and admit of no modification by the will of the parties; and foreign courts are not hound to inquire after that will, or after the municipal law to which it may correspond. They are bound to look to their own law, and to hold it paramount, especially in the administration of that department of internal jurisprudence, which operates directly on public morals and domestic manners. The consequences would be embarrassing, and probably inextricable, if the personal capacities of individuals, as of majors and minors, the competency to contract marriages, and infringe matrimonial obligations, and the rights of domestic authority and service, were to be regulated by foreign laws and customs, with which the mass of the population must be utterly unacquainted. 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 interests 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 vinculo, 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 Tovey v. Lindsay;53 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 were sufficiently domiciled there to found a jurisdiction 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 foreign 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.
Upon the principles of the English law, a marriage contracted in this state 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 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 this state 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 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 of mankind, that acts valid by the law of the place where they arise, are valid every where, 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 effecting 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 ex directo, 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 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.
ln 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 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 connection 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 Nottingham maintained, in the House of Lords, in Cottington’s case,54 that a foreign decree of divorce, in the case of a foreign marriage, was conclusive, and could not be opened, or the merits re-examined. It was against the law of nations, he observed, not to give credit to the judgments and sentences of foreign countries, till they be reversed by the law, and according to the form of those countries wherein they were given. He referred to Wier’s case, 5 J. I.55 wherein a judgment in debt having been rendered in Holland against an Englishman, he fled from execution to England, and the judgment being certified, the defendant was imprisoned in the admiralty for the debt, and the K. B., upon habeas corpus, held the imprisonment to be lawful and that “it was by the law of nations that the justice of one nation should be aiding to the justice of another nation, and the one to execute the judgments of the other.”
A distinction is taken in the English law, between a suit brought to enforce a foreign judgment, and a plea of a foreign judgment in bar of a fresh suit for the same cause. No sovereign is obliged to execute, within his dominion, a sentence rendered out of it; and if execution be sought by a suit upon the judgment, or otherwise, he is at liberty, in his courts of justice, to examine into the merits of such judgment. In the former case, the rule is, that the foreign judgment is to be received, in the first instance, as prima facie evidence of the debt, and it lies on the defendant to impeach the justice of it, or to show that it was irregularly and unduly obtained. This was the principle declared and settled by the House of Lords in 1771, in the case of Sinclair v. Fraser, upon an appeal from the Court of Session in Scotland.56 But if the foreign judgment has been pronounced by a court possessed of competent jurisdiction over the cause and the parties, and carried into effect, and the losing party institutes a new suit upon the same matter, the plea of the former judgment constitutes an absolute bar, provided the subject, and parties, and grounds of the judgment, be the same. It is a res judicata, which is received as evidence of truth; and the exceptio rei judicatae, as the plea is termed in the civil law, is final and conclusive.57 This is a principle of general jurisprudence founded on public convenience, and sanctioned by the usage and courtesy of nations.58 The rule of the English law has been very generally recognized in the courts of justice in this country, in cases not affected by the constitution and law of the United States.59 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,60 there has been some difference of opinion, and some collisions on this point, in the decisions in the state courts.61 The weight of judicial authority appears, however, to be decidedly in favor of the binding force and universal application of the doctrine of the English law.62
The statute of this state,63 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 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 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 allowed to show, by way of defense, 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 saevitiam aut adulterium; and where there is a separation for such a cause, if the parties come together again, the same cause cannot be revived.64
In determining what is saevitia, by the ecclesiastical law, we find it stated, in Evans v. Evans,65 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 relieve. The wife must disarm such a disposition in the husband by the weapons of kindness.66
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,67 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.68
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;69 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.70 Upon these separations from bed and board, the children that the wife has during the separation, are bastards, for due obedience to the decree is to be presumed, unless the contrary be shown.71 If, however, cohabitation between the husband and wife existed, the presumption of illegitimacy is destroyed.
These qualified divorces are regarded as rather hazardous to the morals of the parties. In the language of the English courts, it is throwing the parties back upon society, in the undefined and dangerous characters of a wife without a husband, and a husband without a wife. The ecclesiastical law has manifested great solicitude on this subject, by requiring, in every decree of separation, an express monition to the parties “to live chastely and continently, and not, during each other’s life, contract matrimony with any other person;” and security was formerly required from the party suing for the divorce, to obey the mandate.72 The statute allows the husband, on such a bill by the wife, for ill conduct, to show, in his defense, and in bar of the suit, a just provocation in the ill behavior of the wife, and this would have been a good defense, even without the aid of the statute.73 And on these separations from bed and board, the courts entrusted with the jurisdiction of the subject, will make suitable provision for the support of the wife and children, out of the husband’s estate, and enforce the decree by sequestration; and the Chancellor, in this state, may exercise his discretion in the disposition of the infant children, and vary or annul the same from time to time, as circumstances may require.74 I apprehend there is not, in these United States, any essential difference in principle, or departure from the doctrines of the English law, on the subject of divorces a mensa et thoro.75
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:
- Lib. 1. car. 13.
- Felices ter et amplius, Quos irrupta tenet copula; nec malisDivulsus Querimoniis, Suprema citius solvet amor die.
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.