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International Law. Sig. Norsa contends that the Legislature of his country has treated this question in a liberal spirit, and that it is favourable to the execution of Foreign Judgments, whatever the nationality of the parties interested. First of all, says Sig. Norsa, it lays down the due observance of International Conventions on this subject; failing these, it determines the conditions which it will exact before giving force to the Foreign Judgment, and which bear upon its form rather than its substance. In principle, the substance of a Foreign Judgment is upheld in Italy, unless, of course, it be contrary to the Public Law of the Kingdom, or to public order. All that the Italian Court enquires into is comprised under the head of "those external conditions which constitute the essential guarantees of good Procedure," viz., the competence of the Foreign Court, the regularity of its procedure in the case, and the observance of all due forms securing the defendant's rights. These details are ascertained by the process
called " giudizio di delibazione," or suit for exequatur (instance en exequatur.) This Procedure, says Sig. Norsa, is sufficiently simple, but he admits that it is still capable of improvement. By means of the suit for exequatur, force is given to Foreign Judgments; when they have passed the necessary ordeal of examination as to form, they may be declared executory in the Kingdom of Italy. Such an examination, for the necessity of which Sig. Norsa contends, is totally different from a review of the Foreign Judgment on its merits, and it may well be upheld as a point which neither can nor ought to be yielded. It is implied in the conditions tabulated by Mr. Piggott* as being those under which Sir Robert Phillimore allows " res judicata " to be a “complete bar to a second litigation.” It is expressed in the conditions adopted by the “ Institut de Droit International ” in their Paris session last autumn, on the report of a special Com
* Op. cit. p. 30.
mittee, formed during the session to consider the question of Foreign Judgments. Having first stated their opinion that a system of Diplomatic Conventions can alone settle the conflicts arising under this head, the committee proceeded to make the following practical suggestions, which we cite from the authorised report in the official organ of the Institute.*
“ Among the conditions under which exequatur shall be accorded to Foreign Judgments by the Courts of the State in which execution is to take place, it must be stipulated that, without revision on its merits, the plaintiff shall prove that the Foreign Judgment carries execution in the State where it was given, which implies proof that it has obtained the force of res judicata, in all those cases in which the legislation of the State where it was given does not consider judgments against which no appeal lies as carrying execution.” It need scarcely be added that the usual reservations concerning public order are made by the Institute, but we may draw attention to one feature as being, we believe, special to its programme, viz., the clause added in M. Moynier's suggestion, bringing in Arbitration. “ The conflicts to which the application of the rules of procedure determined by International Treaties may give rise, shall be submitted to the decision, without appeal, of a Court of Arbitration of which the constitution and functions shall be laid down in the Treaties." Such Courts, if they were ever to be constituted, would of course be, pro tanto, International Courts. They might perhaps prove a first step in the direction of a general system of International Arbitration (not necessarily a permanent International Tribunal), such as has been so warmly advocated from various points of view by Mr. Dudley Field, the late Dr. Miles, Mr. Henry Richard, M.P., and the distinguished Italian Publicists, Mancini and Sclopis. Into this fresh question, however, we
#" Revue de Droit International.” Gand. 1878. No. III., p. 377.
cannot here enter. It must suffice for the present to have indicated it as one of the latest solutions suggested for a very difficult problem. We have perforce left untouched many of the questions discussed by Mr. Piggott, even when they fell more within our scope, while others were distinctly outside our present platform. We have purposely made our Foreign Law statements subject to reservation. The difficulty of obtaining accurate information is very great, and will be best appreciated by those who have gone most deeply into this subject, in which we have but attempted to pave the way for future discussion.
Such discussion will be best initiated, we hold, by private individuals. But we cannot conclude this article without reminding our readers that as far back as 1874 the Government of the Kingdom of the Netherlands, through the then Foreign Minister, M. Gericke De Herwynen, expressed, in a Circular Note to the other European Powers, its regret that the executory force of judgments in Civil and Commercial causes should be generally speaking solely Territorial, and that even where an Ex-territorial force was given, it should be hampered by a Procedure so complicated as almost to neutralise its ability (Revue de Droit International. Gand. 1877. I., p. 78). This is stronger language than we have ourselves used. We record it to show our readers that when the discussion rises from individuals to Governments, it will not be an entirely new question to some at least among the Cabinets of the Old World.
IV.-MIXED MARRIAGES IN VIRGINIA: KINNEY'S
LEGISLATION in the various States of the American
Union has been seriously affected by the existence of a strong feeling of race-antagonism. Thus it has been decided, in United States Courts (In the matter of Ah Yup, Alb. L.J. 1878, vol. 17, No. 20), that a Chinese man is not a “white,” in the legal sense importing the capacity of naturalisation. And there has been a recent judgment of the U.S. Circuit Court in the Eastern District of Virginia, which has decided that the Federal Courts must uphold the State Law of Virginia, which prohibits intermarriage between the white and black races, whether between a white man and a negro woman, or the converse, and makes any such marriages not simply voidable, but void. The judgment in the case which has recently occupied the Circuit Court in East Virginia is a very elaborate one, and we think the care with which it was drawn up, quite as much as the complicated nature of the questions involved, renders it specially deserving of reproduction in these pages. For it will be observed that the Court had to decide upon the very delicate constitutional question of State rights and Federal rights, as well as to consider the nature of the contract of marriage. This last question has occupied so much of our own attention in this Review that we conceive a part, at least, of the judgment in Kinney's case may be looked upon as carrying on the discussion from an American point of view. In laying Judge Hughes's decision before our readers, we, of course, make the same reservation as the learned Judge himself made in its delivery. That is to say, we express no opinion on the policy or the justice (from the point of view of Natural Law) of the Law of the State of Virginia, prohibiting intermarriage between
certain races. Nor do we profess to agree with all the various links in the chain of reasoning by which the Court arrived at its decision. Some of these, indeed, strike us as extremely subtle, and open to question, perhaps even to a different conclusion. We are not convinced, for instance, that the marriage in the district of Columbia may not have been validly contracted by Edmund Kinney and Mary Hall, quà citizens of the United States, though it were invalid quà their State citizenship. But the ability and scrupulous carefulness of the learned Judge are evident throughout.
The imposition of a penalty in addition to declaring the prohibited marriage void, marks salient difference between the Virginian and English Marriage Laws. And the severity of such a punishment as five years of imprisonment with hard labour inflicted in this case, in accordance with the State Laws, will probably startle Englishmen generally, as well as those subjects of the United Kingdom who, at various times, have committed the analogous fraud on their country's laws of going to a foreign State to contract marriage with a deceased wife's sister. The case on which the present judgment was given
on petition of Edmund Kinney, a negro, for five years resident in Hanover County, Va., who, in October, 1878, visited Washington, D.C., and was there legally married to Mary S. Hall, a white woman, with whom he soon after returned to Hanover County, where they lived together as man and wise. They were both arrested, tried, and convicted by a State Court, for feloniously leaving the State of Virginia for the purpose of marrying, and for having so intermarried, and then returned to the State of their domicil and there cohabited. Upon conviction, each party was sentenced to five years of hard labour in the State Penitentiary, where Kinney was confined at the time of presenting his petition, praying for a writ of “habeas corpus," addressed to the superintendent of the penitentiary, on the alleged ground that the petitioner was confined in