that each sovereign State is supreme within its own limits. It is therefore within the power of such a State at any time to exclude any or all foreign laws from operation within its borders. To the extent that it cannot do this, it is not sovereign. Hence, when effect is given to a foreign law in any territory, it is only because the municipal law of that State temporarily abdicates its supreme authority in favor of the foreign law, which, for the time being, with reference to that particular matter, becomes itself, by the will of that State, its municipal law.2

There are however some cases in which the courts will not permit a foreign law to supplant the domestic law. These exceptional cases will be considered more at large hereafter.

These principles have been recognized by the United States Supreme Court, as entering into the definition of the "comity" which governs the courts in enforcing foreign laws. In Hilton v. Guyot it is said: "Comity is neither matter of absolute obligation nor of mere courtesy and good will. It is the recog nition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of the laws."

It is of the utmost importance to observe at the outset that every point that may come up before a court for its decision must have a situs somewhere, and each point that arises will in general be governed by the law of the State where that situs is ascertained to be. Whether the interest before the court be one arising from the voluntary action of the individual, or whether it be created, without voluntary action, merely by the law itself, is immaterial. It must have its situs, assigned by the individual or by the law. Numerous instances of this principle will appear later. A tort, a contract, a conveyance of property, the devise or descent of land or personalty, marriages, all have their situs, whose law will generally govern with respect to

2 See Whart. Conf. L. §§ 1, 2, 3; Dalrymple v. Dalrymple, 2 Hagg. Cons. 58.

8 Post, Chapter II.

4 159 U. S. 118.

them. To ascertain the situs in such cases and others is in large measure the purpose of this work.

In the future discussion therefore we will examine (1) The situs of the person; (2) The situs of status; (3) The situs of personal property; (4) The situs of contracts; (5) The situs of torts; (6) The situs of crimes; and (7) The situs of remedies. But before entering into the discussion of these heads, a chapter will be devoted to the consideration of certain exceptional cases wherein it is held that neither the claims of situs nor the demands of comity are strong enough to induce the substitution of a foreign for the domestic law.

CHAPTER II.

EXCEPTIONS TO THE APPLICATION OF A FOREIGN LAW.

§ 5. General Grounds upon which the Exceptions are based. In the preceding section it has been shown that the basis of private international law is "international comity," which in reality is nothing more than an enlightened sentiment of justice and policy.

But it must never be forgotten that every sovereign State has absolute control over the persons and property within its borders, and may regulate them as its own notions of propriety and policy dictate. The question in all such cases is, shall it exercise the right to control these matters by its own law, or shall it yield to the law of another State? If it chooses the latter course, it does so not because the foreign legislation or institutions have an exterritorial force within its limits, but simply because policy and justice demand it.2

It may be that the legislature of the State in which the question arises has foreseen and provided for the contingency, and has expressly laid down the rule that shall govern its courts should a foreign element creep into a particular case. In such event the legislature may enact that the foreign law is to control, or that, notwithstanding the foreign element, the domestic law shall still govern. This is a matter of policy wholly in the discretion of the legislature, into which the courts cannot in

1 See Blackinton v. Blackinton, 141 Mass. 432, 436; Ellis v. Ellis, 55 Minn. 401, 56 N. W. 1056, 1058; Roth v. Roth, 104 Ill. 35, 44 Am. Rep. 81, 82, 83; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 35; Green v. Van Buskirk, 5 Wall. 307; s. c. 7 Wall. 139; Hervey v. Locomotive Works, 93 U. S. 664; Pennoyer v. Neff, 95 U. S. 714, 722; Atherton Co. v. Ives, 20 Fed. 894, 896; Moore v. Title & Trust Co., 82 Md. 288, 33 Atl. 641, 642.

2 Petersen v. Chemical Bank, 32 N. Y. 21, 44, 88 Am. Dec. 298.

quire. In the latter case, there would be no room for the operation of the rules of private international law. It is merely a question of the courts' obedience to the mandates of the State's municipal law.

But it rarely happens that the legislature, in enacting a statute, expressly deals with cases involving a foreign element. Primarily the legislature enacts laws for its own citizens, touching property and transactions within the State, and does not usually notice expressly those cases in which the person, the property, or the transaction affected may be without the State, in whole or in part. Under these circumstances therefore the duty devolves upon the courts to determine whether the municipal law, by its silence, means to include or to exclude these cases. Here it is that the rules of private international law come into play, and guide the courts in the solution of problems that are often intricate.

There may be said to be five instances wherein it is generally considered that the municipal law of the State where the ques tion is raised (lex fori) forbids the enforcement of a foreign law. (1) Where the enforcement of the foreign law would contravene some established and important policy of the State of the forum ; (2) where the enforcement of such foreign law would involve injustice and injury to the people of the forum; (3) where such enforcement would contravene the canons of morality established by civilized society; (4) where the foreign law is penal in its nature; and (5) where the question relates to real property.

These exceptions are of supreme importance in the study of this subject, and must be constantly borne in mind, for they constitute standing exceptions to almost every proposition that can be laid down. Yet they are often lost sight of by the courts, or are confounded with the principles themselves. The unnoticed existence and enforcement of them in many of the cases is one main cause of the confusion that envelops the subject. The reader must therefore pardon a constant recurrence to them in the course of the discussion which is to follow.

In view of these frequently recurring exceptions, and to avoid a lengthy periphrasis, we will in future designate as "THE PROPER LAW" that law which, upon general principles, is the

proper law to govern the case. If it is one of the exceptional cases above mentioned, the law governing it will be designated The Domestic Law or Lex Fori.

§ 6. First Exception - Policy or Interests of Forum contravened by Enforcement of Proper Law. - Few general principles of private international law are so well settled as the rule that no foreign law (even though, under ordinary circumstances, it be the "proper law ") will be enforced in a sovereign State, if to enforce it will contravene the express statute law or an established policy of the forum, or is injurious to its interests.1

If the policy of the forum has been expressed in a statute which in terms covers even transactions having a foreign element, no difficulty will be apt to arise. There can be no question then as to what is the pronounced policy of the forum, a policy deemed so important as to be expressly extended by the legislature to foreign transactions. If the forum retains a vestige of sovereignty, the lex fori will prevail."

It is in cases where the domestic law is not statutory but unwritten, or, if statutory, where the statute does not in terms apply to matters involving a foreign element, that the difficulty arises. It is not in every case of this kind that the domestic law is applicable. If this were so, there could never be any

1 May v. Bank, 122 Ill. 551, 13 N. E. 806, 808; Frank v. Babbitt, 155 Mass. 112, 115; Mackey v. Pettijohn, 6 Kan. App. 57, 49 Pac. 636, 637 ; Bowles v. Field, 78 Fed. 742, 743; Case v. Dodge, 18 R. I. 661, 29 Atl. 785, 786; Despard v. Churchill, 53 N. Y. 192, 200; Van Voorhis v. Brintnall, 86 N. Y. 18, 26, 40 Am. Rep. 505; Freeman's Appeal, 68 Conn. 533, 37 Atl. 420; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14, 15; Com. v. Lane, 113 Mass. 458, 463, 18 Am. Rep. 509; True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319; Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 703, 704-5; State v. Ross, 76 N. C. 242, 22 Am. Rep. 678; Edgerly v. Bush, 81 N. Y. 199; Woodward v. Brooks, 128 Ill. 222, 20 N. E. 685, 686; Ex parte Dickinson, 29 S. C. 453, 7 S. E. 593, 594-5; Green v. Van Buskirk, 7 Wall. 139; Smith v. Union Bank, 5 Pet. 518, 527.

2 See Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148; May v. Bank, 122 Ill. 551, 13 N. E. 806, 808; Frank v. Babbitt, 155 Mass. 112; Com. v. Lane, 113 Mass. 458, 463, 18 Am. Rep. 509; Barnett v. Kinney, 147 U. S. 476; Butler v. Wendell, 57 Mich. 62, 23 N. W. 460, 462; Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 703, 704-5; Kerr v. Dougherty, 79 N. Y. 327, 341; Case v. Dodge, 18 R. I. 661, 29 Atl. 785, 786.