gene ROBINSON BLAND. the distinction upon which I shall rely, is that foreign laws are to be regarded in England, only where they vary from the general common law: and not where they contradict express prohibitory statutes. This is a reasonable distinction. In all ral affirmative laws a variety of exceptions are admitted, as being either, first, cases not in the contemplation of the Legislature, whose want of foresight the equity of the Courts must supply; or, secondly, too* minute to be attended to, [ *239 ] in forming a general rule; and therefore equity (according to Grotius), is the correction of that wherein the law, by virtue of its universality, is deficient. Upon one of these accounts the Courts have admitted local customs and particular usages to prevail in derogation of the common law; or, what is much the same thing, foreign laws to guide the decision of controversies arising abroad, however different from the general rules of the municipal law. But, where there is an express prohibition by statute, where the Legislature has peremptorily exploded this or that doctrine, or invalidated this or that contract; no want of attention or foresight can be presumed. The Legislature is the best and only judge what rule of right shall be established, and having declared its sentiments by a strong negative precept, there is no power which ought to resist it. Accordingly, the cases relative to this point (except those of usury, which go upon a different principle), are all of them exceptions to the general common law, and not to particular acts of Parliament. Daws and Pindar (a), was only argued, and never determined; but is the same point with Blankard and Galdy (b), wherein the only question was, whether the statute law of England extended to the Leeward Islands, without naming them in special; and it being held that it did not, it followed of course, that a statute, which extended only to a sale of English offices, could not vitiate a contract for an office in Jamaica. These cases therefore prove nothing material. Feaubert and Turst, Fremoult and Dedire (c), (and a number of others not cited by Mr. Serjeant), were all questions upon the general common law, and not upon any negative statute. Wherever our Courts have taken cognizance of foreign transactions, and in consequence have sometimes admitted foreign laws to be given in evidence, they have always recourse to a fiction (d). The plaintiff declares that the contract was made or completed in England; as in the present case, that the acceptance of the bill of exchange was at Westminster. This, though false in fact, is not traversable; Co. Litt. 261 b; Capp's Case, 2 Roll. Rep. 492. Now it would be strange, if a mere fiction *should be allowed [ *240 ] to militate against the express will of the Legislature, that a contract feigned to be made at Westminster should be valid, when, if really made there, it would have been vicious. If a man avails himself of a fiction, he must pursue it through all its consequences. He must not take the benefit of our law in one (a) 2 Mod. 45. (b) 4 Mod. 222. (d) See Lord Mansfield's judgment in Mostyn v. Fabrigas, 1 Cowp. 176. ROBINSON v. BLAND. part, and reject it in another. An affirmative statute will destroy a local custom inconsistent with the provisions of the act. City of London and Gatford, 2 Mod. 39; Freem. 203; a custom in Southwark to appoint scavengers at the court-leet was held to be taken away by the statute 14 Car. 2, which appoints a new method of doing it. A fortiori a negative statute, which declares such usage void, will invalidate a local custom. And if it will destroy a domestic custom, which is lex loci, shall a foreign law be allowed to withstand it? There are two branches of the statute 9 Ann. [c. 14.]-One which gives an action to the loser, and another which prohibits the action of the winner. I do not contend that the penal part of this statute extends to a transaction in France; therefore all the absurdities (with regard to the poor of the parish, &c.) put by Mr. Serjeant are out of the present case. But where a plaintiff prays in aid of our law to recover a gaming debt contracted abroad, the prohibition of the statute shall then take effect. He shall not employ the process of our law, to subvert its own constitutions. Statute 9 Ann. is extremely strong. It vacates all securities whatsoever, where the whole or any part of the consideration is for money won, or lent at gaming; any statute, law, or usage to the contrary notwithstanding. How then can the law or the usage of France be set up in opposition to this statute? If once it be laid down for a rule, " that this Court will compel "the performance of contracts made abroad, though contrary to the express provision of our own statute law," it must be laid down generally and in its full extent. Gaming contracts are not entitled to any special indulgence. The consequence [ *241 ] of this would be absurd. *Stock-jobbing contracts (e), contrary 66 to 7 Geo. 2, c. 8, if made in France, shall never surely be recoverable in England. This would introduce all the mischief of that pernicious practice afresh. Statute 12 Geo. 2, c. 21, vacates all insurances made on the exportation of wool. If such an insurance be made in Holland, shall either party come over to England and demand your Lordship's assistance to compel the execution of such a contract? Even in 13 Ed. 4, when it was held that our general laws did not bind merchant strangers, it was said that statutes for the forfeiture of merchandize did. Bro. Denizen, 5; Fitzh. Denizen, 2.-The Marriage Act 26 Geo. 2, c. 33, s. 13, prohibits all suits to compel a marriage in consequence of any previous contract. If two English subjects should contract themselves in France, Jersey, Ireland, or Scotland, and on their return one should institute a suit against the other for performance of this foreign contract, would not a prohibition be instantly issued to restrain it? These instances only flow from the reason of the thing, and have never been judicially resolved. But, in another instance, the statute of limitations has been frequently allowed to operate upon transactions arising abroad: Beven and Clapham, 1 Lev. 143; Davis and Yale, Lutw. 946; Duplein and De Rouen, 2 Vern. 540. (e) As to stock-jobbing transactions, see post, 633. ROBINSON บ. BLAND. And if this statute be allowed to operate upon foreign debts, where trade may be affected; a fortiori other statutes may operate thereon, where trade is out of the question. Had the plaintiff delayed this action one year longer, we might have availed ourselves of the statutes of limitation; and why not at present of the statutes for discouraging gaming? As to the statutes of usury, I allow the law to be as stated by Mr. Serjeant. But this does not depend upon this principle, that our statute-law cannot operate upon foreign contracts, but upon peculiar reasons of its own, which make it necessary that laws for regulating the rate of interest must be merely local. The rate of interest in every country depends upon a multitude of local circumstances; e. g. it must be higher or lower according to the scarcity or plenty of current specie. What therefore is moderate interest in one country may be *usury and ex- [ *242 ] tortion in another. And unless the rule of determining foreign contracts respecting interest be guided by the rate of interest in the place where the contract is made, no foreigner would contract with an Englishman, which would put a stop to all foreign trade, which is supported by mutual credit. The preambles to stat. 12 Car. 2, c. 13, and 12 Ann. st. 2, c. 16, both of them give reasons merely local for the reduction of domestic interest from eight to six, and from six to five per cent. And it is the policy of this kingdom, as a trading state, not to discourage the high interest payable abroad, by extending the operation of our statutes to such foreign contracts; so that the balance of commerce may be every where in favour of our own merchants. As to the argument drawn from the statute against spirituous liquors, it has never been so determined. But if it had, the purview of this statute is also evidently local. It is calculated to throw a check upon dram-drinking, by preventing a score in a London gin-shop: but it is morally impossible, that it can ever be worth while to bring a foreign debt of this value before any of our English Courts. The like answer will serve to the supposition of a sumptuary law, &c. It is only a supposition; and were it to prevail in fact, I have an equal right to suppose that the debt would not be allowed. If I am right in this branch of the argument, it puts an end to the whole question; neither the money lent, nor a fortiori the money won, are recoverable by the judgment of this Court. But as it is impossible to foresee what weight these reasons will have, I must proceed to argue, secondly, II. That a contract made in France, and not allowable by the general law there, but only under the special circumstances here stated, is not binding in our Courts, when contrary to an express prohibition of our own statute law. This only extends to the money won, to 3721. For though I should be right in this point, yet it will not affect the 3001. lent at the time of play, any farther than as it is coupled with the [ *243 ] other in the same security, the whole of which is void, if part of the consideration be bad. Here the general constitutional law of France agrees with ROBINSON v. BLAND. our own. It is opposed by the whimsical decisions of an arbitrary partial jurisdiction, governed by no written or permanent law, extending only to gentlemen and injuries of honour. I allow that the payment of gaming debts is reckoned in France among the points d'honneur: they had it from their German ancestors. Ea est in re prava pervicacia, ipsi fidem vocant; Tac. de Mor. Germ. xxiv. A refusal to pay would be a cause of challenge. Therefore, to prevent murder, this jurisdiction is permitted, as being the less evil of the two. Our law pays a regard to the general law of foreign countries, not to any special excentrical customs. We have a Court in England, called the Lawless Court, Curia sine Lege(ƒ), which, like this of the Marshals of France, is governed by no settled law.The proceedings are carried on by whispering; they have no pen and ink, but only a piece of charcoal; and every suitor that appears not, forfeits double his rent every hour. The same regard that the Courts of France would pay to this extraordinary Court, in a suit for this forfeiture there, may be paid to the Court of the Marshals in our country. Let them execute their own process, but not attempt to guide the judgment of an English Court of law. Private foreign Courts, though governed by settled laws, are never attended to in England; Tourton and Flower, 3 P. Wms. 371; held by Lord Talbot, that our Courts can take no notice of what is done in the spiritual Courts beyond sea. This is stated to be merely a debt of honour. Can our Courts of common law give relief in matters of honour arising in a foreign country, when they clearly cannot do it at home? Court of Constable and Marshal may hold plea of matters of honour" here, which they could not do "if they might be discussed by the common law."[ *244 ] Stat. 8 Ric. 2, c. 5; Hale's Hist. Common Law, 37 (g). *Again: This Court acts only in personam, not in rem; by imprisonment of the body, not seizure of the effects. But if this suit be allowable in Westminster Hall, the plaintiff has a remedy both against the body and the effects. And shall he have a better remedy here than abroad, for a debt set up in opposition to the laws of this country? All special customs must be construed strictly. And the jurisdiction of this Court is not stated to extend to executors or administrators. Nor indeed can it. It takes cognizance only of debts of honour; whichdie with the person. No man's honour is testamentary, or can vest in his personal representatives. There will be a perpetual deficiency of assets. Our articles of the navy and of war allow an officer to be cashiered for not behaving like a gentleman. If a maxim should prevail in Courts martial, that non-payment of gaming debts is unbecoming the character of a gentleman, and they should resolve to break every officer that refused: this would be as compulsory a process as the imprisonment of the Marshals of France. But would this be sufficient to ground an action upon in the King's Bench for payment of a 66 (f) Jacob's Law Dict., and Camd. Britt. 441. (g) Pp. 40, 41, (ed. 1820). 66 ROBINSON v. BLAND. note obtained upon such a consideration? If not, and it would not be sufficient to recover money lost on board the fleet, when in harbour or hovering upon the coasts of France, why should it be sufficient if they were actually landed on the continent? Where is the difference between money lost by one British officer to another in the camp in England or the camp in Germany? Our Courts have been always very laudably strict in supporting the statutes against gaming. Hussey and Jacob, Carth. 356; (reported also in Salk. 344, 5 Mod. 175, Comyns, 4); the acceptor of a bill of exchange, though a third person, allowed to plead the statute against gaming, to avoid his own acceptance of a gaming draught. Holt indeed said, according to some of the Reporters (not Carthew), that had the bill been indorsed over by the payee, the indorsee might have recovered it. But in Bowyer and Bampton, Stra. 1155 (h), Holt's dictum is denied to be law. The Court, after two solemn arguments, determined that the innocent indorsee of a gaming note could maintain * no action against the drawer. "For it would be of [*245 ] some use to the lender, if he could pay his own debts with it, and it will be a means to evade the act. And though it "will be some inconvenience to an innocent man, (who, however, may sue the indorsor), yet that will not be a balance to "those on the other side." The present case is that of the original winner and lender, and therefore much stronger; and the reasons are at least equally applicable to this case as the other. It is suggested, that this is a positive law. That there is no vice in the contract, no moral turpitude in fair gaming.But is there any in stock-jobbing, in insuring the exportation of wool, in a marriage contract, or in suing out an original after six years are expired? Yet no transaction of this kind will be countenanced in our Courts, whether the cause of action arose at home or abroad. It is not a necessary ingredient to vitiate a foreign transaction, that it must be accompanied with moral turpitude. Reasons of foreign or domestic policy will make it frequently improper to enforce a contract against the positive law of the state. But is there no degree of moral turpitude in excessive gaming, such as risking 7007. at a sitting? There is at least extravagance, and probably distress to a man's self, his family, and dependants in every relation of life. Gaming to excess gives a loose to every furious passion that deforms the human mind. What this excess is, the laws have ascertained. In gentlemen, by stat. Car. 2, it was 1007. at a sitting, by 9 Anne, it is 107.; in tradesmen, by the bankrupt laws, it is 57. (i). This Court will not give a sanction to this fashionable vice, nor suffer our travelling nobility and gentry to fall a more easy prey to it than they are already. If they lose only ready money in France, our laws indeed cannot assist them; but the loss is then limited, and the consequence less (h) See the observations on that case, in Lowe v. Waller, 2 Doug. 741: also Edwards v. Dick, 4 B. & A. 212. |