fail to compare them, and in the end to have a tolerably uniform opinion touching their comparative value. The next step is to bring law nearer to perfection. In the four first editions of this work we attempted to give a brief sketch of this branch. In the present one we confine ourselves to the consideration of jural capacity, and then pass on to the effect of foreign criminal judgments and to extradition, which are sometimes embraced in private international law, but more properly belong to international law in the strict sense, inasmuch as they contemplate transactions of states with one another, and have to do with individuals only as being the passive objects of justice. Jural capacity. § 74. A principle of private international law in which there is a general agreement is, that the jural capacity of a person is determined by the law of his domicil. Questions such as those of citizenship, minority, legitimacy, lunacy, the validity of marriage, the legal capacity of a married woman, belong here. Thus a person having, according to the laws of his domicil, reached his majority, can make contracts which are binding in a foreign country, although persons of the same age domiciled there would be minors. So also a woman belonging to a country where a married woman can perform legal acts of herself, can do this in a country where such power is denied to married women, and vice versa. And according to this rule if a person changes his domicil, he acquires a new jural capacity, by which, in foreign parts, his actions are to be measured. This is true universally, but in many cases the courts of the earlier domicil, especially if it were the person's native country, have shown a leaning towards holding him under their territorial law. The reasons which justify this principle are, (1.) That otherwise extreme inconvenience would "result to all nations from a perpetual fluctuation of capacity, state, and condition, upon every accidental change of place of the person or of his movable property." (2.) That the person subjects himself and 1 1 Story, chap. iv., § 67. his condition, of free choice, to the law of the place where he resides, by moving there or continuing there. Exceptions to the rule above given. But there are several very important exceptions to the rule, that the lex domicilii is to determine in regard to personal status and jural capacity. These exceptions arise from the natural unwillingness of nations to allow laws to have force in their courts, which are opposed to their political systems, or to their principles of morality, or their doctrine of human rights. 1. One of these is, that if a person suffers in his status at home by being a heretic, a country which regards such disabilities for such a reason as immoral, and perhaps is of the same religion with the heretic, cannot permit his lex domicilii in this point to have any effect in its courts, but applies its own law. 2. Where the laws forbid or limit the acquisition of property in mortmain, or by religious houses, the ecclesiastical foundations of another land may be affected by such limitations. On the contrary, in a state which has no such laws, religious corporations, which at home lie under restrictive legislation, may be exempt from it. 3. A man passing from a country where polygamy has a jural sanction into a state under Christian law, can obtain no protection for his plurality of wives; the law not of his domicil but of the place where the judge lives must govern. 4. "So in a state where negro slavery is not tolerated, a negro slave sojourning there cannot be treated as his master's property, — as destitute of jural capacity." And this for two reasons: "Slavery as a legal institution is foreign to our polity, is not recognized by it; and at the same time from our point of view it is something utterly immoral to regard a man as a thing." So Savigny.1 To the same purport Fœlix says: "On ne reconnait pas aux étrangers le droit d'amener des esclaves et de les traiter comme tels." And to the same effect Heffter. "No moral state can endure slavery. In no case is a state bound to allow the slavery which subsists in other, 1 viii., §§ 349, 365. Compare Story, § 96. although friendly, lands, to have validity within its borders." 1 This principle is received into the practice of the leading nations. The maxim that the "air makes free," has long been acted upon in France; it prevails in Great Britain, and with slight modifications in Prussia. So if a cargo of slaves is stranded on the soil of a state which does not recognize the status of slavery in its institutions and laws, there is no process under international law, excepting treaty made for that express purpose, by which they can be prevented from availing themselves of their freedom, or by which the owner can recover them as his property. There is a close analogy between the condition of such slaves on a foreign soil and that of prisoners of war in a neutral port, escaping on shore from the vessel where they are confined, who cannot be recaptured, since they enjoy the benefit of the right of postliminy (§ 151, 4.) So also when a master freely brings his slaves into a jurisdiction where slavery is unknown, he can neither legally act the master there, nor force them away with him to his own domicil. They may acquire a domicil like any other person in the territory where they are thus sheltered, and should they revisit the country of their enthrallment, the lex domicilii would now determine their status to be that of freemen.2 Case of the The case of the Creole presents an extreme example of this refusal on the part of nations to recognize the law of Creole. the domicil where it sanctions slavery. This vessel, containing slaves in transportation from one port of the United States to another, was by their act forced to put into 1 Fœlix, u. s., i., 30, § 15; Heffter, § 14. Compare § 142, infra. 2 Compare the Louisiana Reports, vol. xiii., p. 441, where it is held, that "where a slave was taken from Louisiana, with the consent of the owner, to France, although afterwards sent back here, she was thereby entitled to her freedom, from the fact of having been taken to a country where slavery is not tolerated, and where the slave becomes free by landing on the French soil." Priscilla Smith v. Smith. So in the case of Eliz. Thomas v. Generis et al. (vol. xvi., p. 483, of the same Reports), it is held, that a slave taken to the State of Illinois, with express or implied consent of her master, became free, and, being once free, could not again be made a slave by removing her to a slave State. a port of the Bahama Islands in the winter of 1841-42. The slaves having secured for themselves a refuge on shore, the colonial authorities, and afterwards the British government, refused to give them up, as being free persons. If the slaves had merely fled to British territory, it was conceded that they could not be demanded back. But it was contended by Mr. Webster, that the law of nations exempts from interference property on vessels driven into foreign ports by disasters of the sea, or carried there by unlawful force.1 This exemption from territorial law is undoubtedly made by the law of nations. (Comp. § 68, end.) But the question is, whether such a rule of comity and humanity should override a greater act of humanity and compel the territorial authorities to use force in order to prevent the slaves from retaining their liberty. By what process could this be done in a land where slavery is unknown, and how could a passenger be required to return on board a certain vessel which he had left? It is to be observed, however, in regard to applications of foreign law, which the moral sense or political principles of a nation reject, that questions growing out of a status which cannot be recognized by the courts, if they do not affect the personal capacity itself, may be decided according to the foreign law. Thus a contract relating to the sale and purchase of slaves might be held legal, if legal in the domicil of the contracting parties. And it is probable that the children of a polygamist Turk,2 by a second or third wife, would not be treated as bastards in all respects by Christian courts. § 75. Effect of The judgment of a court and the execution of it are acts of sovereignty. Comity alone gives them effect out of the country where they originate. Many writers foreign on international law maintain that a definitive decision by a competent court in a foreign country, under due forms of law, and where opportunity of appeal is allowed, 1 Webster's Letter to Ashburton, Works, vi., pp. 303-313. judgments. ought to stand and receive its execution in any other country, as much as the decisions of its own tribunals, - provided, however, that such judgment contain nothing contrary to the interests or rights of the foreign country. This principle has passed in a degree into the laws and practice of the European states. Some of them have adopted in this respect the rule of reciprocity. France, on the other hand, takes ground which greatly restricts the effects of foreign judgments within her borders. An ordinance of 1629, still in force, prescribes that judgments rendered in foreign sovereignties, shall have no execution in France, and that subjects of the French king, against whom they are rendered, may bring their cases up anew for revision before the tribunals of their own country. According to M. Fœlix, this law does not prevent judgments rendered against a stranger from being executed in France, if judged not inconsistent with the rights and interests of the nation. England again takes a third position. He who has obtained a foreign judgment in his favor, brings before the court a claim to the thing adjudged to him. The foreign judgment is regarded as a decisive proof of the justice of the claim, unless some irregularity can be shown by the opposite party.1 Crimes com foreign country. § 76. Each nation has a right to try and punish, according to its own laws, crimes committed on its soil, whoever may mitted in a be the perpetrator. But some nations extend the operation of their laws so as to reach crimes committed by their subjects upon foreign territory. In this procedure municipal law only is concerned, and not international; and, as might be supposed, laws greatly differ in their provisions. (1.) One group of states, including many of the German states, some of the Swiss cantons, Naples, (once) Portugal, Russia, and Norway, punish all offenses of their subjects, committed in foreign parts, whether against themselves, their subjects, or foreigners, and this not in accordance with foreign but with domestic criminal law. (2.) At the opposite extreme 1 Fœlix, ii., §§ 347-404, especially § 357. But comp. Story, §§ 603-607. |