Error from the Circuit Court for the District of
Massachusetts.
The Plaintiff in error was a native of Massachusetts, formerly
resident in Boston, where he contracted the debt in question to the
Defendant in error, who was, also a native, and had always
continued a resident, of that state. Some years afterwards the
Plaintiff in error removed into Pennsylvania, became a resident
citizen of the state, took the benefit of her bankrupt law (which,
in its terms and operation, was analogous to the bankrupt laws of
England) and duly obtained a certificate of conformity from the
commissioners. Subsequent to this discharge, he returned, on a
transient visit, to Boston; and, being there arrested by the
Defendant in error, for the old debt, he caused the suit to be
removed from the State into the Circuit Court, and pleaded his
certificate in bar to the action: but the court (consisting of
Judge Iredell, and the District Judge) over-ruled the plea, and
gave judgement for the Plaintiff below: whereupon the present writ
of error was brought.
*
The argument of the cause had been considerably advanced, when a
contagious fever made its appearance again in Philadelphia, and the
business of the court was unavoidably suspended. But at February
Term, 1797, the court having decided,
Page 3 U.S.
369, 370
in the case of Bingham versus Cabot, et al. that in order to
sustain the jurisdiction of the Federal Court, it must be set forth
in the process, that the parties are citizens of different states;
and that form having been omitted in the present suit, this and
several other writs of error were struck off the docket. Ingersoll
and Dallas, for the Plaintiff in error. Lewis and E. Tilghman, for
the Defendant in error.*
Page 3 U.S.
369, 371
all nations, of controuling all those by their laws, who live
among them, exemplifed, as Grotius mentions, 2. c. u. n. 5. in the
instance of personal arrest practiced everywhere.
Whoever makes a contract in any particular place, is subjected
to the laws of the place as a temporary citizen.
Nor indeed are they supported or justified by any reason, in
compelling foreigners to abide by the decisions of the law where
they happened to be, except on the general principle that the
jurisdiction of a government is considered as competent to the
controul of all those, who are within its limits.
From these considerations the following position arises. All
business and transactions in court, and out of court, whether
testamentary or other conveyances, or acts, which are regularly
done according the law, of any particular place, are valid even
where a different law prevails, and where, had they been so
transacted, they would not have been valid. On the contrary,
transactions and acts which are executed, contrary to the laws of a
country, as they are void at first, never can be good and valid,
and this applies, not only with respect to those who have their
residence in the place of the contract; but those, who were there
only occasionally; under this exception only, that if the rulers of
another people would be affected by any peculiar inconvenience of
an important nature, by giving this effect to transactions
performed in another country, according to the laws of the place
they are in, such particular place is not bound to give effect to
those proceedings, or to consider them as valid within their
jurisdiction. It is worth while to exemplify the principle by
examples and instances.
In Holland a last will and testament may be made before a
notary, and two witnesses: In Friezeland it is of no effect unless
established and witnessed by seven witnesses.
A Batavian makes a will in Holland according to the law of the
place, under which the goods, situated and found in Friezeland are
demanded; ought the Judges of Friezeland to grant the demand
founded upon the will made in Holland? The laws of Holland cannot
bind the people of Friezeland, therefore to decide according to the
first maxim, the will would not be good in Friezeland; but by the
third maxim its validity is supported, and by that judgment is
given in its favour. But a Frizian
Page 3 U.S.
369, 372
makes a journey into Holland, and there executes a will
according to the law of the place, contrary to the law of
Friezeland, and returns and dies there: Is the will good? It is
good according to the second maxim; because while he was in
Holland, though but for a temporary purpose, he was bound by the
law of the place, and an act good, where done, ought to prevail
every where, according to the third maxim, and that, without any
distinction between moveable and immoveable estate, and so the law
is practiced. On the other hand, the Frizian makes his will in his
own country, before a notary, with two witnesses, it is carried
into Holland, and demand made of the goods found there: It will not
be granted, because not made in a valid manner at first, being made
contrary to the laws of the place. It would be the same thing if
the Batavian, was to make such a will in Friezeland, although in
Holland it would have been good; for it is true, that such a deed
would not be good in its commencement, for the reasons just
stated.
What we have said with respect to wills applies equally to
conveyances to take effect during the life of the grantor: Provided
a contract is made according to the law of the place, in which it
is entered into, throughout, in court, and out of court, even in
those places where such a mode of contracting is not allowed, it
will be supported. For example: In a certain place particular kinds
of merchandize are prohibited, if sold there the contract is void,
but if the same merchandize were sold elsewhere, in a place, where
there was not any prohibition, and a suit is brought in a place
where they were prohibited, the purchaser will be condemned and the
suit maintained, because the contract was good in its origin, where
made. But if the merchandize sold in another place, where they were
prohibited, were delivered, the purchaser would not be condemned,
because it would be contrary to the law and convenience of the
government where they were sold, and an action would not be
countenanced wherever instituted, even to compel the delivery; for,
if on the delivery being made the purchaser would not pay the
price, he would be bound, if at all, not by the contract, but that
having got the goods of another, it would be unreasonable that he
should enrich himself at the expense and loss of another.
The rule is equally applicable to adjudged cases. A sentence
pronounced in any place, or a pardon granted by those who had
jurisdiction, has equal effect every where. Nor is it lawful for
the magistrates of another commonwealth, to prosecute, or suffer to
be prosecuted, a second time, one who has been absolved or
pardoned, although without a sufficient reason. Still however under
this exception, that no evident danger or inconvenience result from
it to the other commonwealth, as an instance within our own memory
may exemplify. Titius having struck a man on the head, on the
borders (within the limits) of Friezeland, who the following night
discharged a great deal of blood at the nose, and, after having
supped and drank heartily, died. Titius escaped into Transylvania.
Being apprehended there as it appears voluntarily, he was tried and
acquitted, upon the suggestion that the man did not die of the
wound. This sentence was sent into Friezeland, and he applied for a
discharge from the prosecution as having been acquitted. Although
the manner of trial was not very exceptionable, yet the court of
Friezeland was much disgusted at the idea of executing the
delinquent, and giving effect to the foreign proceedings, although
demanded by the Transylvanians; because the flight into the
neighbouring government, and the pretended process appeared too
evidently calculated to elude the jurisdiction of Friezeland; which
is the exception under the third maxim.
Page 3 U.S.
369, 373
The same principle is observed in judgments respecting civil
matters as is evident from the following example within our memory.
A citizen of Harlem made a contract with one in Groningen and
submitted himself to the judges of Groningen. Being cited by virtue
of this submission, and not appearing he was condemned, as
contemacious. Execution of the sentence being demanded, it was
doubted whether it ought to be granted in a Frizian court. The
reason of doubting was, that by force of the submission, if he was
not found in the foreign territory, they could not proceed against
him as contemacious, as we shall see elsewhere; nor without
prejudice to our jurisdiction and also of our citizens, could
effect be given to such sentences. However it was allowed at that
time, certain magistrates concurring, that it should not be
permitted to the Frizians to examine by what principle the sentence
passed at Groningen could be justified, but only whether it was
valid according to the law of the place. Others were governed by
the following reason, that the magistrate at Harlem on request had
granted a citation which he ought rather not to have done, and the
Amsterdam magistrate denies the execution of the sentence passed
against the absent, being cited to the court of Friezeland by an
edict founded on the terms of the submission and condemned without
being heard, and that such proceedings ought not to affect any one.
With this opinion I concur, on account of the restriction contained
in the third axiom.
Again: it has been made a question, whether if a contract is
entered into at any supposed place, abroad, and an action is
commenced with us, and the rule was different here, and there,
either in allowing or denying the action, which law is to govern?
For instance. A Frizian becomes a debtor in Holland on account of
merchandize sold there, and is sued in Friezeland after the
expiration of two years; the act of limitation is pleaded which
bars such actions with us after a lapse of two years; the creditor
replies that in Holland, where the contract was made, such
prescription and limitation do not exist; and therefore is not to
be urged against him in this case. But is was otherwise decided
once between justice Bleckenfeldt against G. Y. and again between
John Jenollin against N. B. both before the great holidays in 1680.
For the same reason, if a debtor resident in Friezeland executed an
instrument in Holland before a magistrate which may there entitle
him to an execution, but not by common right, no execution can
issue here, but the merits of the original demand must be examined.
The reason is, that acts of limitation, and modes of execution, do
not belong to the essence of the contract, but to the time and
manner of bringing suits, which is a distinct thing, and therefore,
it is established upon the best ground, that in entering a
judgment, the law of the place where it is rendered, is to govern,
although, it respects a contract made elsewhere, Sandius B. 1. Tit.
12. Def. 5. Where he says that in the execution of a sentence given
abroad, the law of the place, in which the execution is asked, is
to govern, not the law of the place, where the judgment was
given.
The contract of matrimony is also regulated by the same rules.
If it is regular and valid in that place where it was contracted
and celebrated, it is binding every where, under the same exception
of not doing prejudice to others, to which exception may be added,
if incest should be permitted any where, or marriage in the second
degree, which indeed is fearcely supposable.
In Friezeland matrimony is, when a man and woman agree to marry
and voluntarily take each other for man and wife, although no
ceremony is performed at church.
Page 3 U.S.
369, 374
In Holland, matrimony cannot be contracted in that manner. The
Frizians, however, without doubt, enjoy among the Hollanders the
rights of married people, in the particulars of dower, jointure,
the rights of children to inherit the property of their parents,
etc.
In like manner if a Brabanter, who should marry under a
dispensation from the Pope within the prohibited degrees, should
remove here, the marriage would be considered as valid: yet if a
Frizian marries the daughter of his brother in Brabant, and
celebrates the nuptials there, returning here he would not be
acknowledged as a married man, because, in this way our law might
be eluded by bad examples, and this induces me to make an
observation upon this point. It often happens, that young people
desirous of forming improper connexions, and to sanction their
illicit intercourse with the ceremony of marriage, go into East
Friezeland, or other places, in which the consent of curators or
guardians is not necessary to marriage, according to the Roman
laws. There they celebrate marriage and presently return to their
country. I think, that this is a manifest fraud or evasion of our
law, and therefore that the magistrates here, are not obliged by
the law of nations to acknowledge such marriages or to hold them as
valid; especially with respect to those, who transgress and evade
their own laws knowingly and intentionally. Moreover, not only, the
contract of marriage itself, properly and regularly celebrated in
one place, is good in all places, but the rights and incidents
which attend it where celebrated, attend it elsewhere. In Holland
married people have a communion of all their goods, unless it be
otherwise expressly convenanted by them; this will be the effect,
as to goods situated in Friezeland, although there marriage only
occasions a common risque of profit and loss, not of the goods
themselves; therefore the Frizians remain after the marriage each
one, both husband and wife, separate owners of their goods situated
in Holland. When however the married couple remove from the one
state or province to the other, whatever is afterwards acquired or
falls to either, is not in common, but held by distinct right, and
what was before made common between them, will be either in common
or otherwise as they direct: as Sandius lays it down who tells us,
B. 2. de is tit. 5. def. 10. there was a dispute among the learned
doctors whether immoveable goods, situated in another country, were
to be affected and regulated by the rules as we have laid it
down.
The reason of the doubt was, that the laws of one commonwealth,
cannot affect the integral parts, the territory of another
commonwealth; to this two answers may be given. First, That it
cannot be done by the immediate force and operation of a foreign
law, but with the concurring consent of the supreme power of the
other government, which gives an effect to foreign laws exercised
upon property within its own jurisdiction, without any prejudice
being received to its sovereignty or the rights of its citizens,
regarding the mutual convenience of the two nations or governments,
which is the foundation of all these rules. The other answer is,
that it is not so much by force of law, as by the consent of the
parties reciprocally communicating their rights to each other, by
which means a change, or modification of property may arise, not
less from matrimony than any other contract.
The place, however, where the contract is entered into, is not
to be exclusively considered: if the parties had in contemplation
another place at the time of the contract, the laws of the latter,
will be preferred in the construction of the contract.
Every one is considered as having contracted in that place, in
which he bound himself to pay or perform anything b. 21. de. O.
& A. and the place where matrimony is contracted is not so much
the place where
Page 3 U.S.
369, 375
the ceremony is performed, as where they expect and intend to
live and settle. It happens daily, that men in Friezeland, natives
or sojourners, marry wives in Holland, which they immediately bring
into Friezeland. And if at the time of the marriage, they intended
immediately to settle in Friezeland, there will not in such case be
a community of goods. Although they make no special marriage
contract, not the law of Holland, but of Friezeland, will govern:
the latter, not the former, is the place of their contract.
There is a further application of the restriction so often
mentioned. The effects of a contract entered into at any place,
will be allowed according to the law of that place, in other
countries, if no inconvenience results therefrom to the citizens of
that other country, with respect to the law which they demand, and
the sovereignty of the latter place, is not bound, nor indeed can
it so far extend the law of another territory. For example, the
oldest and first hypothecation ( mortgage) of a moveable, is to be
preferred even against a third possessor, by the law of Ceasar, and
in Friezeland, not among the Batavians; therefore if any one upon
such an Hypothecation proceeds to demand the article from a third
person, he shall not be heard, but his suit rejected; because the
right of the third person to that chattel, shall not be taken away,
by the law of another jurisdiction or territory. Let us enlarge
this rule to the following extent:
If the law of the place in another government is contrary to the
law of our state, in which also a contract is made, inconsistent
with a contract celebrated and made in another place, it is
reasonable in such case, that we should observe our own law, rather
than a foreign law. For example:
In Holland, matrimony is contracted with this agreement, that
the wife shall not be responsible for the debts contracted by the
husband only; although this is a private contract, it is said to be
valid in Holland, to the prejudice of the creditors, with whom the
husband shall afterwards contract debts, but in Friezeland such a
kind of contract would not be binding unless published, nor would
ignorance of the necessity of making it public, be an excuse
according to the law of Ceasar and equity. The husband contracts
debts in Friezeland, and the wife is sued as jointly responsible,
and liable for one half of the debt: She pleads her marriage
contract, the creditors reply that this contract is contrary to the
laws of Friezeland, because not published, and this is the rule
with us, where the marriage was contracted here; as I lately gave
my opinion when consulted upon the point. But those who contracted,
in Holland, and in whose favour the debts were contracted there,
were non-suited, notwithstanding their suit was brought in
Friezeland, because, as far as respected them, the law of the
place, where the marriage was contracted, not the laws of the two
countries, came into consideration.
From the rules laid down in the beginning, the following axiom
may be deduced. Personal rights or disabilities obtained, or
communicated, by the laws of any particular place, are of a nature
which accompany, the person wherever he goes, with this effect,
that in all places, he either enjoys the immunities or exemptions,
or is subject to the disabilities imposed by the law of the country
where, they at any time happen to be, on characters of that
description.
Therefore, those who with us are under tutors or curators as
young men, prodigals, married women, are every where reputed, as
persons subject to curators, and whatever the law of any place
considers as the right or disabilities of persons of that
description, they may suffer exercise and enjoy; hence, he who is
excused the consequences of crimes, or
Page 3 U.S.
369, 376
contracts on account of his want of age, in Friezeland, cannot
make binding contracts in Holland, and one declared, prodigal here,
contracting elsewhere, will not be bound. Again, in some provinces,
one above the age of twenty-one years, may convey his real estate;
such a person may do the same in those places where twenty-five is
the period of full age; because whatever the laws and judicial
proceedings in any place, decide as to their subjects, other people
allow to have the same effect with them, unless a prejudice or
inconvenience, would result to them, or their laws.
There are persons who understand these personal rights to the
following extent, that whoever, in a certain place, is of full age,
or a minor, a child, or put out of the controul of the father, will
enjoy the same rights, and be subject to the same disabilities, as
in the place where he became such a character, or was so reputed;
and whether the same thing would, or would not, have happened in
his own country, still that the same consequence necessarily
follows. It appears to me, that this is laying down the rule too
broad, and would subject us to a burdensome inconvenience by the
laws of our neighbours. An example will make the thing plain: A
child not emancipated or exempted from the power of his Father, and
who has nor ceased to be one of his family, cannot make a will in
Friezland. He goes into Holland, and there makes a will-is it
valid? I think it valid in Holland, by the first and second rules,
that the laws regulate as to all those within its limits, nor is it
reasonable, that the people there, respecting a business done
there, neglecting their own laws, should judge according to the
laws of other people, but that will would not be valid in
Friezeland, by the third rule, because by that means, nothing would
be more easy than to elude our laws, and our citizens might elude
them every day. But in other places out of Friezeland, the will
would be valid even where by their laws a child while one of the
Father's family could not make a will, because there the reason
would not apply, that their citizen had gone to Holland to elude
their law in fraudem legis.
The example I have given respects an act prohibited at home on
account of a personal disability. We will give another act allowed
at home, but prohibited abroad, where done; some time since decided
in our Supreme Court- Rudolph Monsema aged 17 years and 14 days,
was born, and lived at Groningen, after that he went abroad to
learn the business of a Druggist, he made a will, which he might
have made in Friezeland, but at Groningen, says D. Nauta the
Reporter, it is not lawful for an infant to make a will under 20,
or in the time of his last illness, or for more than half his
patrimony. The young man died of that sickness leaving his Father
his heir, and leaving nothing to his Mother's relations, who
contended that the will was void as made against the law of the
place. The heirs insisted that a personal quality accompanies the
person every where, and, as he could have made this will at home,
he could make it abroad. But it was decided against the will,
although there was no intention to avoid the law, but the judgment
was not universally approved Nauta himself dissenting. M S. 134.
An. 1643. d. 27. Oct.
The foundation of all this doctrine we have said, and we insist
upon it, is the subjection that men owe to the laws of every
country within which they are at any time; from whence it follows,
that an act valid or void, in its beginning, and where it first
takes place, must be the same elsewhere.
But this observation does not apply equally to immoveable
property, since it is considered not as depending altogether upon
the disposition of every master or owner of a family-but the
Commonwealth
Page 3 U.S.
369, 377
affixes certain rights as resulting from real property, and is
interested in its disposal; nor could a nation without a great
inconvenience suffer its real property to be conveyed with these
incident rights, by the laws of another country, and contrary to
its own laws- therefore a Frisian having fields and houses in the
province of Groningen, cannot make a will disposing of them,
because it is prohibited there to make a will of real estate; the
Frisian law not affecting lands which constitute integral parts of
a foreign territory.
But this does not contradict the rule, that we have before laid
down, that if a will is made accordingly to the ceremonies of the
place, where the Testator resides, it will be good with respect to
his property in another country, if a will could be made there,
because the diversity of laws in that respect, does not affect the
soil, but directs the manner of making the will, which, being
rightly done, may pass real estate in another country, so far as
may not interfere with any incidents, connected with the ownership
of real property in the country where it is situated. This rule
takes place in common conveyances-things annexed to the freehold in
Friezeland, sold in Holland, in a manner prohibited in Friezeland,
but allowed in Holland, are well sold, corn growing in Friezeland
is sold in Holland according to the Lasts, as it is called, the
sales are void, because it is prohibited in Freizeland, whether
prohibited in Holland or not, because it is annexed to the
freehold, and is a part of it.
The same rule held with regard to the succession to an
interstate estate. If the deceased was Father of a family, whose
property was in different provinces, as far as respects the real
estate, it would descend according to the laws of the place where
situated; but with respect to the personal property, it would go
according to the law of the place where the intestate lived, and of
which he was an inhabitant, for which see Sandium lib. 4. Decis.
Tit. 8. Def. 7.
These observations are of a nature that require more full
explanation, seeing there are not wanting writers, who think
otherwise in some particulars, whom you will see respectfully
spoken of by Sandium in his reports of causes; to which add
Rodenbergius treatise of laws, in the title of the Marriage
Contract.
Footnotes
[
Footnote *] It appeared, during the
discussion, that a great diversity, existed in the law and practice
of the several States, upon this subject; and that a decision,
directly contrary to that of the Circuit Court of Massachusetts,
had been given in the Circuit Court of Rhode Island, composed of
Judge Wilson and the District Judge.
[
Footnote *] The following extract
from Huberus was translated for, and read in, this cause; and, I am
presuaded, that its insertion here will be approved by the
prosession. HUBERUS, 2 Vol. B. 1. Tit. 3 ps 26. 'It often happens
that contracts entered into in one place, take effect in different
governments, or are judicially decided upon in other places, than
those in which they were entered into. It is also well known, that
when the Romen Empire was destroyed, the Christian world was
divided into many nations, not united under any common head, nor
connected by any uniformity of regulations. It is not wonderful
that we do not find any thing upon this subject in the Roman law;
when the government of the Roman people, was extended over a great
part of the habitable globe, the frequent conflict and contrarity
of laws could not occur; the rule was one and the same. However the
fundamental rules by which this question ought to be decided,
appear to be derived from the Roman law, although the inquiry
itself appears to belong rather to the law of nations, than to the
civil law; as what different nations observe between themselves, it
is obvious forms the law of nations. In order to render this very
intricate business plain and clear, we will lay down three maxims,
which, being fully established, as it appears to us they may easily
be, the deduction of the consequences, necessary to an entire
understanding of the subject, will be of no great difficulty. They
are these: 1st. The laws of every empire have force within the
limits of that government, and are obligatory upon all who are
within its bounds. 2nd. All persons within the limits of a
government are considered as subjects, whether their residence is
permanent or temporary. 3rd. By the courtesy of nations, whatever
laws are carried into execution, within the limits of any
government, are considered as having the same effect every where,
so far as they do not occasion a prejudice to the rights of the
other governments, or their citizens. It appears, therefore, upon
this occasion, that we ought to consult, not the civil law only,
but what is to be inferred from the mutual convenience, and the
tacit consent of different people, because as the laws of one
people cannot have any force or effect directly with another
people, so, on the other hand, nothing would be more inconvenient
in the promisciuous intercourse and practice of mankind, than that
what was valid by the laws of one place, should be rendered of no
effect elsewhere, by a diversity of law, which is the reason of the
third maxim, of which heretofore no doubt appears to have been
entertained. With respect to the second maxim, some have thought
otherwise, who deny that foreigners are subject to the law of the
place. I acknowledge there are exceptions to the rule, which I will
notice hereafter; but this position we hold as most certain, that
whoever live within the bounds of a government, are to be accounted
its subjects. This is evident from considering the nature of a
republic, and the universal custom among
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