higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on international law." Speaking of text-writers of authority on international law, Mr. Wheaton observes: "They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles." 67

66

§ 435. Reciprocity in foreign judgments.-In many of the states of the Union provision is made by statute or code of procedure as to the effect of foreign judgments. But where no such provision is made, the question must be solved by the principles of international law, and where the matter is not regulated by treaty, the effect to be given to foreign judgment is a matter of comity.68 A foreign judgment can have no extraterritorial force, but civilized nations have, for their convenience, established a usage, through which final judgments of foreign courts of competent jurisdiction are recognized and allowed to have an effect under regulations and restrictions which vary in different countries.69 A judgment in rem is universally treated as valid.70 So

1 Kent's Commentaries, 18.

7 Wheaton on International Law, sec. 15. See cases in which international law has been recognized as part of our law: Rose v. Himely, 4 Cranch, 241, 2 L. ed. 608; Miller v. United States, 11 Wall. 268, 20 L. ed. 135; Young v. United States, 97 U. S. 39, 24 L. ed. 992; The Estrella, 4 Wheat. 298, 4 L. ed. 574; Dow v. Johnson, 100 U. S. 158, 25 L. ed. 632; The Mereide, 9 Cranch, 388, 3 L. ed. 769; Respublica v. De Long

champs, 1 Dall. (Pa.) 111, 1 L. ed.

59.

es 2 Kent's Commentaries, 120. Wheaton on International Law, secs. 78, 79.

TO Williams v. Armroyd, 7 Cranch, 423, 3 L. ed. 392; Hudson v. Guestier, 4 Cranch, 293, 2 L. ed. 625; Ennis v. Smith, 14 How. (55 U. S.) 400, 14 L. ed. 472; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. Rep. 1370, 32 L. ed. 239; Scott v. McNeal, 154 U. S. 34, 14 Sup.

is a judgment by which the status of a person is affected; as, for instance, a decree by which a marriage is dissolved or confirmed.71 Judgments discharging obligations entered into in a foreign country between persons who were citizens or residents of such country have been held conclusive of all matters determined by such judgments.72

§ 436. Foreign judgments in personam.-As a general proposition, it may be stated that foreign judgments for debts have not been regarded as conclusive, but only as prima facie evidence of the matters decided by them. It was said by Judge Story: "The general doctrine maintained in the American courts in relation to foreign judgments certainly is that they are prima facie evidence, but that they are impeachable. But how far and to what extent this doctrine is to be carried does not seem to be definitely settled. It has been decided that the jurisdiction of the court, and its power over the parties, and the things in controversy may be inquired into; and that the judgment may be impeached for fraud. Beyond this no definite lines have as yet been drawn.'' 73

§ 437. Principle as declared by supreme court of the United States. The supreme court of the United States in 1894 was called upon to determine what effect should be given in the

Ct. Rep. 1108, 38 L. ed. 896; Monroe v. Douglas, 4 Sand. Ch. 126; Holcomb v. Phelps, 16 Conn. 132; McKinsey v. Harding, 16 Fed. Cas. (No. 8866) 227, 4 N. B. R. 38; The Trenton, 4 Fed. 657; Pelton v. Platrer, 13 Ohio, 217, 42 Am. Dec. 199; Cushing v. Laird, 107 U. S. 80, 2 Sup. Ct. Rep. 196, 27 L. ed. 395; The Parkhill, 18 Fed. Cas. (No. 10,755a) 1192; Alabama etc. R. R. Co. v. Jones, Fed. Cas. No. 127, 7 Bank. Reg. 171; Hilton v. Guyot, 159 U. S. 167, 16 Sup. Ct. Rep. 145, 40 L. ed. 109; Pierce v. The Alberto, Hoff. 441, 19 Fed. Cas. (No. 11,142) 633; Castrique v. Imrie, L. R. 4 H. L. 414. "Cheely v. Clayton, 110 U. S.

701, 4 Sup. Ct. Rep. 328, 28 L. ed. 298; Thompson v. Thompson, 91 Ala. 595, 8 South. 419, 11 L. R. A. 445; In re James, 99 Cal. 376, 37 Am. St. Rep. 62, 33 Pac. 1123; Peaslee v. Peaslee, 147 Mass. 180, 17 N. E. 510; Thomas v. King, 95 Tenn. 70, 31 S. W. 985. But see in New York as to divorce rendered against a resident of that state without personal service, Williams v. Williams, 130 N. Y. 198, 27 Am. St. Rep. 519, 29 N. E. 99, 14 L. R. A. 222; Roth v. Roth, 104 Ill. 46, 44 Am. Rep. 84, 12 May v. Breed, 7 Cush. 15, 54 Am. Dec. 700.

United States to a judgment rendered in France for a sum of money. In France, the rule is that no foreign judgment can be executed without a review to the bottom-"au fond." Such review may extend to the whole merits of the cause of action on which the judgment is founded. Mr. Justice Gray, who delivered the opinion of the court, entered upon an exhaustive examination of the subject of foreign judgments, and reviewed the practice in the various countries of the world as to the effect given by them to foreign judgments, and announced as the conclusion of the court that the reasonable, if not the necessary, result of the decisions, was that judgments rendered in France or in any other foreign country, by the laws of which judgments of the American courts are reviewable upon the merits, are not entitled to full credit and conclusive effect when suit is brought upon them in the country, but are to be considered only as prima facie evidence of the justice of the claim of plaintiff.74

§ 438. International law founded upon mutuality.-Mr. Justice Gray, in the course of the opinion, said that in holding such a judgment, for want of reciprocity, not to be conclusive of

a

Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. Rep. 139, 40 L. ed. 95. The court, per Mr. Justice Gray, said: "When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens to recover sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court having jurisdiction of the cause and of the parties, and upon due allegations and proofs and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence at least of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in the

foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that by the principles of international law and by the comity of our own country it should not be given full credit and effect."

Section 661 (new number, 723) of the Code of Civil Procedure of the German Empire, as amended in 1905, provides:

"Judgment of execution is to be had without examination of the legality of the judgment (which is being executed).

"Judgment of execution is to be granted only after the judgment of the foreign court has become final according to the law governing the latter court. It is not to be granted when recognition of the judgment is prohibited by section 328."

the merits of the claim, the court did not proceed upon any theory of retaliation upon one person by reason of injustice done to another, "but upon the broad ground that international law is founded upon mutuality and reciprocity, and that by the principles of international law recognized in most civilized nations, and by the comity of our own country, which it is our judicial duty to know and to declare, the judgment is not entitled to be considered conclusive. By our law at the time of the adoption of the Constitution a foreign judgment was considered as prima facie evidence and as not conclusive. There is no statute of the United States, and no treaty of the United States with France or with any other nation which has changed that law or has made any provision upon the subject. It is not to be supposed that, if any statute or treaty had been or should be made, it would recognize as conclusive the judgments of any country which did not give like effect to our own judgments. In the absence of treaty or statute, it appears to us equally unwarrantable to assume that the comity of the United States requires anything more.

1975

§ 439. Dissenting views.-Mr. Chief Justice Fuller did not join in the opinion of the majority of the court as pronounced by Mr. Justice Gray, but filed a dissenting opinion, in which he said.

Section 328 is as follows:

"The recognition of a judgment of a foreign court is prohibited: (1) If the courts of the State to which the foreign court belongs have not jurisdiction according to German law. (2) If the defendant is a German and has not been made a party in so far as process or summons was not served upon him either in person in the State of the trial court nor through the aid of German judicial process. (3) If the judgment, to the prejudice of a German party, departs from the provisions of Article 13, Sections 1-3, or of Articles 17, 18 or 22 of the introductory law of the Civil Code, or from the provision of the part of Article 27 of Treaties-29

the same law which refers to Article 13, Section 1, or from the provision of Article 13, Section 2, or in the case of Article 9, Section 3, to the prejudice of the wife of a foreigner who has been declared dead. (4) If the enforcement of the judgment would violate good morals or the purpose of German law. (5) If reciprocity be not guaranteed.

The provisions of section 5 do not forbid the recognition of the judgment if the judgment concerns a claim which does not involve property rights, and if according to German law, jurisdiction would not lie in Germany.

75 Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. Rep. 139, 40 L. ed. 95.

that he regarded the question as one which should be determined by the ordinary and settled rule in respect of allowing a party who has had the opportunity of proving his case in a competent court to retry it on the merits. He was of the opinion that the doctrine of res adjudicata which applied to domestic judgments should also be applied to foreign judgments, and that such doctrine rested on the general ground of public policy, that there should be an end of litigation. He stated that this application of the doctrine was in accordance with American jurisprudence, and it was not necessary that the court should hold it to be required by some rule of international law. "The fundamental principle concerning judgments," said he, "is that disputes are finally determined by them, and I am unable to perceive why a judgment in personam which is not open to question on the ground of want of jurisdiction, either intrinsically or over the parties, or of fraud, or any other recognized ground of impeachment, should not be held inter partes, though recovered abroad, conclusive on the merits." He concluded by saying: "I cannot yield my assent to the proposition that because by legislation and judicial decision in France that effect is not given there to judgments recovered in this country which, according to our jurisprudence, we think should be given to judgments wherever recovered (subject, of course, to the recognized exceptions), therefore, we should pursue the same line of conduct as respects the judgment of French tribunals. The application of the doctrine of res judicata does not rest in discretion; and it is for the government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary." Justices Harlan, Brewer and Jackson concurred in this dissent."

§ 440. Subject continued-Impeachment for fraud.-At the same term of the supreme court of the United States at which Hilton v. Guyot was decided, the court held that to warrant the impeachment of a foreign judgment because it was procured by fraud, the fraud must be distinctly alleged and charged." In the case just cited, an action was commenced upon a Canadian 235, 16 Sup. Ct. Rep. 171, 40 L. ed. 133.

Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. Rep. 139, 40 L. ed. 131. Ritchie v. McMullen, 159 U. S.