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CONFLICT OF LAWS.

PART I.

INTRODUCTORY.

CHAPTER I.

INTRODUCTION.

§ 1. Origin of Private International Law. Of the exist ence among the ancients of the branch of municipal law known as Private International Law, or The Conflict of Laws, we have no authentic record. If there were any such cases, they have left no impress behind them, and were probably decided as they arose, upon no definite principles.

Nor during the Middle Ages was there any material advance. The nations of medieval Europe had little intercourse with one another, save for warlike purposes. Commerce was as yet but scantily developed, traveling much impeded. With but small occasion for such codes of rules, little attempt was made to establish them.

But with the revival of commerce, the surer guaranties offered for the safety of travelers by reason of the more orderly condition of the European States, the more frequent intercourse between nations, and the advancement of conceptions of justice and order, the need of such rules began to be experienced, just as, at an earlier period, the necessity for the regulations of public international law had been felt.

Only within the past century however has any regular form been imparted to the subject. In recent years it has been much discussed both by English and American writers and judges, as well as by continental jurists, until it has finally assumed the

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proportions of a distinct branch of legal science, though many of its leading principles still remain remarkably obscure and unsettled.1

§ 2. Public and Private International Law distinguished. Private international law may be distinguished from the public in three important particulars.

I. As to the persons on whom it operates.

Private citizens are the subjects of this branch of the law, while public international law deals for the most part with nations as such.

It is true that occasionally, under the latter law, individuals are interested in the questions raised, and are sometimes even the cause of international complications, perhaps of war; but it is not as individuals that public international law interferes in their behalf or condemns them. It is because individuals necessarily form a constituent part of every State, parts of which the nation as a whole is made up; and as no injury can be infflicted on one part of the body or by one member without the participation of the whole, so no member of the body politic can be injured without damage to the material interests, the dignity, and the honor of the whole. It is because of this blow to or by the State that public international law interferes in such

matters.

Private international law, on the other hand, is a part of the municipal law of each State. It deals with individuals as individuals, as persons asking for justice at the hands of judges who are striving to give it, regardless of nationality or locality. II. As to the transactions to which it relates.

The law of nations recognizes in general only transactions in which sovereign States are interested. Not so with private international law. The transactions over which it assumes control are strictly private in their nature, in which the State as such has generally no interest. The private contract of the citizen of one State with the citizen of another, or a conveyance or will made by the citizen of one State transferring property in another, are subjects of private international law, with which public international law has no concern.

1 For the contents of this section, cf. Story, Conf. L., ch. i.

III. As to the remedies applied.

In cases to which private international law is applicable, recourse is had to judicial tribunals acting under the authority and in accordance with the rules of procedure of the country in which they sit. They are asked to hear the evidence and administer justice as though the case were one of purely domestic concern. But in a contest between sovereign States arising under the law of nations, no such recourse is ordinarily practicable. No State would consent to have its disputes decided by the courts of another power, nor to appear before them, a suppliant for the justice it demands as a right.

Yet this general principle is not altogether free from exceptions or apparent exceptions, the most pronounced of which, perhaps, arises from the peculiar form of government existing in the United States.

The States of this Union are sovereign States, save in so far as they have by solemn compact yielded their sovereignty to the federal government. They have surrendered their sovereignty only with respect to their public relations with other nations, and with respect to the few other matters named in the federal constitution. In all other respects they are sovereign, having exclusive control over persons and things within their territories. Hence, though the federal government is the only sovereign in the United States subject to public international law, every State and Territory in the Union may be the subject of private international law.

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But sovereign as the States are, in most matters of local concern, it is provided by the federal constitution that the Supreme Court shall have jurisdiction to decide all disputes arising between the States. Thus is presented with us the extraordinary spectacle of two or more sovereign or quasi-sovereign States submitting their differences to a learned and illustrious tribunal for an orderly and peaceful solution, anticipating the dream of a universal Court of Appeal for all nations.

Meanwhile, in the absence of such an exalted tribunal, to

1 Hood v. State, 56 Ind. 263, 26 Am. Rep. 21, 22; Petersen v. Chemical Bank, 32 N. Y. 21, 40-41, 88 Am. Dec. 298.

2 U. S. Const., Art. 3, § 2.

which all nations may resort, the only remedies for the infringement of a nation's rights are a recourse to diplomatic channels; should that fail, to retorsion, reprisal, and other means short of war; and finally to the arbitrament of arms,- that last dreadful resort of an insulted or injured people.

§ 3. Foreign Element essential to Operation of Private International Law. - Private international law embraces those universal principles of right and justice which govern the courts of one State having before them cases involving the operation and effect of the laws of another State or country. Such cases arise whenever a foreign element is introduced into a transaction.

If the transaction in question arises wholly within a single State, all the parties interested having been, and continuing to be, domiciled and actually present there, the question being raised there also, no foreign element exists to cause any interference with the usual and regular enforcement of the domestic municipal law by the domestic tribunals. There is no room in such case for the application of the rules of private international law.

But if we suppose one or more of the parties to live in another State, or the transaction or some part thereof to have arisen elsewhere, a foreign element is at once imported into the case, and it may be asked whether the court is to be governed in its decision by the domestic law, by the law of the place where the parties, or some of them, live (or, in technical phrase, are domiciled), by the law of the place where the transaction or part thereof arises, or by the law of the place where property affected thereby may be situated?

Thus, if A, a citizen of New York, should there mortgage to B, a citizen of Maryland, personal property situated in Virginia, which property A afterwards removes to Illinois and sells to C, where B brings suit to recover it, a prominent question before the Illinois court might be: Shall we decide upon the validity of B's title according to the law of New York, where the owner lived and the transfer was made; or according to the law of Maryland, where the vendee lives; or according to the law of Virginia, where the property happened to be at the time of the

transfer; or shall we discard all these foreign elements entirely, and let the domestic law- the law of Illinois - control?

It is the aim of the branch of law with which we are now engaged to determine, in cases of this character, which law should be followed.

§ 4. Basis of Private International Law. — Effect is given to a foreign law, not through any convention or agreement of nations, but merely because justice and policy often demand that, in the enforcement and interpretation of contracts and other transactions possessing a foreign element, the court should be governed by some other than the domestic law.

When one voluntarily does an act in a particular country, it is, as a general rule, just and proper that the effect of the act should be measured by the law under which it is done. The party need not do the act there unless he chooses, and if he elects to do it there, the just measure of its operation is the law to which he has thus voluntarily submitted himself. In other words, the situs or locality of the act in question furnishes the law which will govern it. And the same general principle, as we shall hereafter see, applies to transactions and circumstances which are not the result of voluntary action. The law of the situs of the particular matter will control.

It is often said that a court, in enforcing a foreign law, acts ex comitate, and if care is observed to note the meaning of the term "comity," the expression is not erroneous. The basis of

private international law may be said to be comity, but it is as much a comity shown to the litigants in referring to the law of the situs, as above explained, as a comity to the State whose law is thus enforced. In truth, it is something more even than comity to the litigants. It is in answer to the demands of justice and an enlightened policy.1

It is to be observed that the rules of private international law do not derive force from a power superior to the sovereign States which recognize and enforce them. On the contrary, the very essence of a sovereign State is that it has no superior. It is one of the fundamental principles of this branch of the law

1 Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38, 39; Warrender v. War. render, 2 CL. & F. 488, 530. See Whart. Confl. L. §§ 1a, 2, 3.

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