§ 29. A criminal sentence, pronounced under the municipal law of one State, can have no legal effect in another. If it be a conviction, it cannot be executed without the limits of the State in which it is pronounced; and if such conviction be attended with civil disqualifications in the country where

One Anthony Fazons, who had received 500l. of King Edward II., fled with the same to Lorraine. The English King wrote to the Duke of Lorraine that the fugitive might be arrested and his goods seized, wheresoever they might be in that territory, in order that satisfaction be made to him.-Claus 8, E. 2, m. 32, Dorse, pro Rege.

Queen Elizabeth demanded that Morgan and other British subjects who had committed treason, should be delivered up to her, by the French King. But he refused; for, said he, 'Si quid in Gallia machinaretur, Regem ex jure in illos animadversurum; sin in Anglia quid machinati fuerint, Regem non de eisdem cognoscere et ex jure agere; omnia regna profugis esse libera, regum interesse ut sui quisque regni libertates tueatur.'

By the fifth article of the treaty between Great Britain and Denmark, Feb. 13, 1660, it was provided that if any of them who are guilty of the horrid murder committed upon King Charles I., of blessed memory, be either now in the dominions of the King of Denmark and Norway, or shall hereafter come thither, that as soon as it shall be known or told to the King of Denmark, or any of his officers, they be forthwith apprehended, put in safe custody, and sent back into England, or be delivered into the hands of those whom the King of Great Britain shall order to take charge of them and bring them home.'

Napper Tandy, a political offender of '98, was given up by the Senate of Hamburgh to the Government of George III.-27 How. State T. 1191.

In 1819 one Daniel Washburn was brought up on a habeas corpus and charged with theft in Canada. Chancellor Kent held that a State was bound, irrespectively of treaties, to surrender fugitive criminals, and that a magistrate, irrespectively of legislation in that regard, was bound to commit the accused upon proof of the commission of a crime, so as to enable either the home government to extradite the prisoner, or the foreign government to demand him; the prisoner could require his discharge on habeas corpus, if not claimed within a reasonable time; whether the prisoner was a subject of the pursuing government or of the home government was immaterial. (4 Johns Ch. R. 106.) But in 1835, Judge Barbour (in the Circuit Court) refused to detain a foreigner in prison for the purpose of surrender to his own country, on the ground that without a treaty stipulation the government of the United States was not under any obligation to surrender a fugitive from justice to another government for trial, and that, as a judicial officer of the United States, he had no authority whatsoever either to arrest or detain with a view to such surrender.-2 Brock and Marsh., 493. And in 1837 Mr. Justice Story (U.S. v. Davis, 2 Sumn. 485) followed this example. See also Opinions of Attorney-General, iii. 660; Holmes v. Jennison, 14 Peters, 541.

But in 1864, the United States delivered up one Arguelles to Spain, although there was no extradition treaty between those countries, nor any Act of Congress relating to the same. Mr. Seward said that the extradition was understood to have been effected by virtue of the law of nations, and the constitution of the United States.-U.S. Dipl. Corr. 1864, pt. ii. 60-74.

And in 1873, on the same principle the Spanish Government delivered one Bidwell to the British Government, there being no treaty of extradition between those countries. See further the Acts for amending the law of extradition and the notes thereto at the end of this chapter.

pronounced, these disqualifications do not follow the offender into another independent State. In the words of Martens, 'a sentence which attacks the honour, rights, or property of a criminal, cannot extend beyond the courts of the territory of the sovereign who has pronounced it, so that he who has been declared infamous, is infamous in fact but not in law. And the confiscation of his property cannot affect his property situate in a foreign country. To deprive him of his honour and property, judicially, there also, would be to punish him a second time for the same offence.' It follows, from this wellestablished principle, that if a delinquent should fly from one jurisdiction to another, for the purpose of obtaining a milder punishment, or an acquittal in the tribunals of the country where he should take refuge, such sentence would be a nullity, and of no avail to protect him against a prosecution in the State to which he owed allegiance, or in which the crime was committed. But a conviction or acquittal, in the State where the offence was committed, or to which he owed allegiance, would, of course, be an effectual bar to a prosecution in any other State.1

30. The conclusiveness of foreign sentences and judgments, where they are drawn in question in the tribunals of another State, will depend upon the nature of the action, and the usage of the different nations, and the special compacts between them. In personal actions, res adjudicata, in one country, can have, per se, no effect in another. The effect attached to a foreign judgment is different in different countries. In English and American courts, a foreign judgment is primâ facie evidence where the party claiming the benefit of it applies to have it enforced, and it lies on the defendant to impeach the justice of it, or to show that it was irregularly obtained. If this is not shown, it is received as evidence of a debt; but if it appears, from the record of the proceedings upon which the original judgment was founded, that it was unjustly or fraudulently obtained, or resulted from false premises, or a palpable mistake of the law applicable to the case, it will not be enforced. In France, the operation of a foreign judgment is restrained within still narrower limits. As between different States, united together into a composite State or federal union, the organic constitution, or municipal

1 Martens, Précis du Droit des Gens, §§ 86, 94, 104.

law, will determine the degree of credit and effect which a judgment obtained in one shall have in the other States. Thus, in the United States of America, a judgment in one State has, in all the others, the conclusive effect of a domestic judgment.1

31. Foreign judgments or sentences of a court of competent jurisdiction, proceeding in rem, such as the sentences of prize courts, courts of admiralty, and revenue courts, are conclusive as to the proprietary interest in, or title to, the thing in question, wherever the same comes incidentally in controversy in the tribunals of another State. Whatever doubts may exist,' says Wheaton, 'as to the conclusiveness of foreign sentences, in respect of facts collaterally involved in the judgment, the peace of the civilised world, and the general security and convenience of commerce, obviously require that full and complete effect should be given to such sentences, wherever the title to the specific property, which has been once determined in a competent tribunal, is again drawn in question in any other court or country.2

32. If a foreign court exercises a jurisdiction which, according to the law of nations, its sovereign could not confer upon it, its sentence or judgment is not available in the courts of any other State, and the courts in which such judgment is brought in controversy will determine the question of jurisdiction for themselves; but so far as its jurisdiction depends upon municipal law, or its proceedings are governed by municipal rules, it is the exclusive judge of its own jurisdiction and of the regularity of its own proceedings, and its decision on these points binds the world. Of its own jurisdiction,' says Chief Justice Marshall, 'so far as depends on municipal rules, the court of a foreign nation must judge, and its decision must be respected.' If the proceedings are

1 Kent, Com. on Am. Law, vol. ii. p. 119; Kluber, Droit des Gens, § 59; Foelix, Droit Int. Privé, §§ 293-311; Frankland v. McGusty, I Knapp. R., p. 274; Becquet v. McCarty, 3 B. and A. R., p. 951; Mills v. Duryee, 7 Cranch. R., p. 481; Hampton v. McConnell, 3 Wheaton R., p. 234; Riquelme, Derecho Pub. Int., lib. ii. tit. i. cap. ix.; Westlake, Private Int. Law, ch. xii.; Gardner, Institutes, p. 146.

2 Wheaton, Elem. Int. Law, pt. ii. ch. ii. § 18; Vattel, Droit des Gens, liv. ii. ch. vii. §§ 84, 85; Story, Conflict of Laws, §§ 585, 591-593; Croudson v. Leonard, 4 Cranch. R., p. 434; Gilston v. Hoyt, 3 Wheat. R., p. 246; Duchess of Kingston case, 11 Howell's State Trials, p. 261; Massé, Droit Commercial, tome ii. §§ 298–325.

' merely irregular, the courts of the country pronouncing the sentence were the exclusive judges of that irregularity, and their decision binds the world.' Thus, if the court of one country condemn a vessel as a prize under the law of nations, and the sentence is brought in controversy in the court of another State, the latter may examine into, not only the * authority of the former to act as a prize court,' but also 'whether the vessel condemned was in a situation to subject her to the jurisdiction of that court.' But if the matter in controversy is land, or other immovable property, the judgment pronounced in the forum rei sitæ, is held of universal obligation, as to all the matters of right and title which it professes to decide in relation thereto. And this results from the very nature of the case, for no other court can have a competent jurisdiction to inquire into or settle such right or title. By the general consent of nations, therefore, the judgment of the forum rei sitæ is held absolutely conclusive. Immobilia ejus jurisdictionis esse reputantur, ubi sita sunt. And the same principle is applied to all other cases of proceeding, in rem, as to movable property, within the jurisdiction of the court pronouncing the judgment. Whatever it settles as to the right or title, or whatever disposition it makes of the property by sale, revendication, transfer or other act, will be held valid in every other country, where the same question comes, directly or indirectly, in judgment before any other tribunal.'1

§ 33. As a general rule, courts do not take judicial notice of the laws of a foreign country, but they must be proved, not as facts to the jury, but as facts to the court. The court, therefore, decides what is the proper evidence of such laws, and of their applicability to the case in hand. The manner of proof must vary, according to circumstances. The general principle is, that the best proof shall be required which the nature of the case admits of. But to require such proof of the laws of a foreign State as its institutions and usages do not admit of, would be unjust and unreasonable. The usual

1 Croudson v. Leonard, 4 Cranch. R. 434; Williams v. Armroyd, 7 Cranch. R. 423; Grant v. McLachlin, 4 Johns. R. 34

A French tribunal has no jurisdiction over contracts entered into between a native of France and a foreign Government. Sirey, Arrêts de la Cour de Cassation, 1849, p. 81. Compare herewith Duke of Brunswick v. King of Hanover, 1 H. of L. Cas. i

modes of authenticating the written laws of a foreign country are, by an exemplification of a copy under the great seal of the State, or by a certificate of some duly authorised officer, which certificate must be duly authenticated, or by a copy proved to be a true copy. Some States do not use any great seal for such purposes, but copies of the laws, decrees, and orders are certified to by the minister, with his signature and rubric, or signature alone, under whose care the archives are kept. In others, there is a particular officer appointed as keeper of the archives, and who is authorised to authenticate copies thereof. The rule of evidence must therefore vary with the institutions and usages of the country whose written laws are to be proved. But foreign unwritten laws, customs, and usages,' says Story, 'may be proved, and indeed must ordinarily be proved, by parole evidence. The usual course is, to make such proof by the testimony of competent witnesses, instructed in the law, under oath. Sometimes, however, certificates of persons in high authority have been allowed as evidence.' These questions of evidence are generally determined by the municipal laws of the place where the foreign law is to be proved.1

§ 34. The same may be said of the proof of contracts, instruments, and other acts made or done in one country and offered in evidence in another. In some cases, it is sufficient to prove them in the manner and by the solemnities and proofs which are deemed sufficient by the law of the place where they are executed; and, in others, they are required to be proved according to the law of the place where the action or other judicial proceeding is instituted. On this subject, the law and practice of different States differ, as also the opinions of publicists. There are very few traces to be found in the reports of the common law,' says Story, 'of any established doctrines on the subject.' Where such instruments and acts can be proved according to the lex fori, such proofs are usually required, but if such evidence cannot be produced, and there is no municipal law to the contrary, evidence deemed competent in the place where the instruments were executed, is usually admitted in the place where

1 Church v. Hubbart, 2 Cranch. R. 238; In Re Dormy, 3 Hagg. R. p. 467-469; Mostyn v. Fabrigas, Cowper R. 174; Lincoln v. Battel, 6 Wend. R. 475.