But most matters of remedy go to the substance where the jurisdictions are different in the great majority of important contracts. The criterion set up is impossible of application, for where the solution of the problem within one jurisdiction, by the passing of an unconstitutional statute impairing the obligation of contracts, would be objected to on that ground, and the remedy would be made to conform to the substance of the original contract, it is not considered unconstitutional if the impairment of the contract arises from the laws of two or more States, and the rules of law are said to be so rigid that only an approximation of exact justice may be attained in any case at bar. Courts do not go out of their way to contravene fixed principles on conflict of laws, and the fact that the same result, if attained in the lex loci, by change of statute, would be violative of the Federal Constitution could not be effectively urged before the court.'

"It is to be remembered that the State of the forum, being sovereign within its limits, has the power (if it chooses to exercise it) to substitute its own law for that of any foreign State, and wherever the intent of the legislature of the forum to do so is clearly manifested, no cause of want of uniformity was given in Chappell v. Jardine, 51 Conn. 64. A mortgage was made of certain property on Ram Island, then a part of New York. The island was, by establishment of the boundary, determined to be in Connecticut. The mortgage was a New York mortgage. It had, however, to be foreclosed under Connecticut law. This, however, furnished no means of foreclosing a New York mortgage, the Connecticut remedy being adapted to a mortgage deed conveying title to the mortgagee, a mortgage of real estate in New York creating a mere chose in action, a pledge, a security for debt. The Connecticut court could only suggest ways out of an admitted tangle.

1 Edwards v. Kearzey, 96 U. S. 595.

other course is open to the courts of that State save to obey the legislative will."

In other words, the conflict of laws in the United States is by another criterion shown to be in violation of the Constitution, and another class of cases is indicated in which substantial justice can be attained only under a common law of the United States. That the recognition of this conflict as not unconstitutional is the chief obstacle to legitimate control of corporations and restraint of trade by State and nation has already been clearly shown.1

§ 199. COMITY DOES NOT EXIST BETWEEN THE STATES OF THE UNITED STATES. Two methods have been tried to overcome the confusion ensuing from the absence of common law for the individuals of two associations, or States. One is for the courts of each association to recognize the laws of the other. The other method is by the observance of a rule giving members of each association all the rights, in the other association, of the members thereof. Each of these methods, resting upon a common basis, is exclusive of the other upon principle. Both principles are asserted between independent nations under the name of comity but at the option of the nation applying them. Since they have been attempted simultaneously in co-ordinate associations, each has equally failed.

"22. Without entering upon the subject (which properly belongs to a general treatise upon Public Law) it may be truly said that no nation is bound to respect the laws of another nation, made in regard to the subjects of the latter, who are non-residents. The obligatory force of such laws of any nation cannot extend beyond its own

1 Pages 251-254, supra.

territories. And if such laws are incompatible with the laws of the country where such subjects reside, or interfere with the duties which they owe to the country where they reside, they will be disregarded by the latter. Whatever may be the intrinsic or obligatory force of such laws upon such persons if they should return to their native country, they can have none in other nations wherein they reside. Such laws may give rise to personal relations between the sovereign and subjects, to be enforced in his own domains, but they do not rightfully extend to other nations. Nor indeed is there, strictly speaking, any difference in this respect, whether such laws concern the persons, or concern the property of native subjects. A State has just as much intrinsic right, and no more, to give to its own laws an extra-territorial force as to the property of its subjects situated abroad, as it has in relation to the persons of the subjects domiciled abroad. That is, as sovereign laws, they have no obligation on either the person or the property. When, therefore, we speak of the rights of a State to bind its own native subjects everywhere, we speak only of its own claim and exercise of sovereignty over them when they return within its own territorial jurisdiction, and not of its right to compel or require obedience to such laws on the part of other nations within their own territorial sovereignty. On the contrary, every nation has an exclusive right to regulate persons and things within its own territory according to its own sovereign will and public policy.

23. From these two maxims or propositions there follows a third, and that is, that whatever force and obligation the laws of one country have in another depend entirely upon the laws and municipal regulations of the

1 Hall, perhaps the greatest English authority on international law, abandons the fiction of extra-territoriality. The French law has a somewhat different conception. See Kelly's French Law of Marriage and Van Dyne's Law of Citizenship.

latter, that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent." 1

"32. It is difficult to perceive upon what ground a claim can be raised, to give any municipal laws an extraterritorial effect, when those laws are prejudicial to the rights of other nations, or to those of their subjects. It would at once annihilate the sovereignty and equality of every nation which should be called upon to recognize and enforce them, or compel it to desert its own proper interest and duty to its own subjects in favor of strangers, who were regardless of both. A claim so naked of any principle or just authority to support it is wholly inadmissible.

"33. It has been thought by some jurists that the term comity is not sufficiently expressive of the obligation of nations to give effect to foreign laws when they are not prejudicial to their own rights and interests. And it has been suggested that the doctrine rests on a deeper foundation, that it is not so much a matter of comity or courtesy as a matter of paramount moral duty. Now assuming that such a moral duty does exist, it is clearly one of imperfect obligation, like that of beneficence, humanity and charity. Every nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded." 4

"38. There is then not only no impropriety in the use of the phrase 'comity of nations,' but it is the most appropriate phrase to express the extent and true foundation of the obligations of the laws of one nation within the territories of another. It is derived altogether from the

1 Story, Conflict of Laws, citing Huberus, Lib. I, Tit. 3, P. 2. The Halley, L. R. 2 P. C. 193, 203.

3 Liverm. Dissert. 26-30.

Story, Conflict of Laws.

See Robinson v. Bland, 2 Burr. 1077, 1079; Blanchard v. Russell, 13 Mass. 4.

voluntary consent of the latter, and is inadmissible when it is contrary to its known policy or prejudicial to its interests. In the silence of any positive rule affirming or denying or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government unless they are repugnant to its policy or prejudicial to its interests.1 It is not comity of the courts, but comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other principles of the municipal law are ascertained and guided."

The opinion in the Bank of Augusta v. Earle' shows that there is a greater comity between the States than between nations, that the States have adopted the international law of comity into their system of jurisprudence, that the United States courts may act on this law, that, by tacit consent and by legislation, the States have recognized comity, that Congress in its legislation has regarded it as adopted. This is an error which arises from the careless borrowing of the word "comity" to express a situation which differs essentially from it.

Comity is voluntary; it does not impeach sovereignty. But the very reason that the situation pointed out exists is that the States have to a degree parted with sovereignty. They at the same time parted with the discretion of acting in comity. They must, under the Constitution, act in comity. This is not comity; the States cannot at discretion act in comity with other nations, nor with the other States, nor with the paramount national government. That which resembles comity between the States of the Union is incidental, Bateman v. Service, 6 App. Cases, P. C. 386, 389. 2 13 Peters, 519.