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The doctrine in the English courts that the lex loci contractus shall not be permitted to prevail where it is contra bonos mores, or is repugnant to the settled principles and policy of our own laws, is supported in other instances. Where a question arose in the Court of King's Bench, whether a person born before marriage in Scotland, of Scotish parents, who afterwards intermarried there, and thereby became legitimate in Scotland, could inherit real property, as a legitimate heir in England, it was held by the Court, and afterwards confirmed in Error, that he could not.a
When the law of the domicil of the creditor and debtor, differs, as to classing debts and rights of action, the law of the domicil of the debtor must prevail in suits thereon, according to the maxims actio sequitur forum rei and debita sequunter personam debitoris. It is, indeed, a maxim that debts and rights of action, inherent ossibus creditoris, attend the person of a creditor; but to recover them, he must follow the forum rei and person of the debtor. The explanation of this seeming contradiction, is, that personal actions arising from debts or obligations have two characters, active as they respect the right of the creditor, and passive as they regard the obligation of the debtor. If the question regard the distribution of the creditor's estate, the law of his domicil is to be observed; if the question be in what degree or proportion the representatives of the debtor should be charged with payments from his effects, then it is of a passive nature, and the law of the domicil of the debtor should be followed.
The extent of the vinculum obligationis of a contract is regulated by the law of the place of contract.b The law of the place of contract, in the case of foreign contracts, is to govern, as to the nature, the obligation, and the interpretation of the contract; locus contractus regit actum. This,” said Lord Brougham, in delivering his judgment in Warrender v. Warrender, " is sometimes expressed; and I take leave to say, inaccurately expressed; by saying that there is a comitas shewn by the tribunals of one country towards the laws of the other country. Where the laws of one country consider the laws of another, in which any contract has been made, in construing its meaning or ascertaining its existence, they can hardly be said to act from courtesy, comitas ; for it is of the essence of the subject-matter to ascertain the meaning of the parties, and that they did solemnly bind themselves. Therefore the courts resort to the law of the country where the contract was made, not ex comitate, but ex debito justitiæ.”c
a Doo Dem. Birthwhistle v. Vardell, 5 B. and Cres. 438, S. C. 9 Bligh R. 32.
61 Emerig. Assur. ch. 4, s. 8, p. 122 ; Casaregis Disc. 179, Henry on Foreign Law, 139. And see Earl of Winchelsea v. Garetty, 2 Keane Rep. 298. Drum. mond v. Drummond, 6 Bro. P. R. 650. o 8 Bligh R. 891.
A legal discharge of a debt in the country where it is contracted, will operate as a discharge in all others.a The place where the bankrupt is arrested, taken in execution, or commits an act of bankruptcy, or where the concursos of creditors, or pro and concurrentiæ are held, is the proper place of distribution. All other claimants must be drawn to the locus concursos creditorum; its law (jus domicilii) is binding, and the equitable doctrine of cession and discharge, is now become a general principle acted upon in every country.b
It is otherwise c when the debt is contracted in a foreign country. A foreign bankruptcy is no bar to the demand of a debt contracted in England; but by a decision not founded on any general principle, but upon the effect of the particular statute, 54 Geo. 3, c. 137, a debt contracted in England by a trader residing in Scotland, was deemed to be barred by a discharge under a sequestration, in like manner as debts contracted in Scotland.d
a Potter v. Brown, 5 East, 124.
b Hunter v. Potts, 4 Term Reports, Sills and Warwicke, 2 H. Bl. 402; Ballantine v. Golding, Cooke's Bankrupt Laws, 499.
c Smith v. Buchanan, 1 East, 6; Potter v. Brown, 5 East, 124; 2 H. BL 553, 8 T. R. 609; Lewis v. Owen, 4 B. & A. 654. d Sidaway v. Hay, 3 B. & C. 13.
OF THE FORM OF STATUTES.
A STATUTE, it has been already seen, is a written law, made by the King, with the advice and consent of the two Houses of Parliament. The mode of stating the enacting authority has varied at different times.
The established form of a statute is, "BE IT ENACTED BY THE KING'S MOST EXCELLENT MAJESTY, BY AND WITH THE ADVICE AND CONSENT OF THE LORDS SPIRITUAL AND TEMPORAL, AND COMMONS IN THIS PRESENT PARLIAMENT ASSEMBLED, THAT," &c.'
It is impossible to dissent from the doctrine of Lord Coke, that acts of Parliament ought to be plainly and clearly, and not cunningly and darkly, penned, especially in penal matters; and the rather when, (duly honoring the memory of Sir Thomas More, and other victims of conscientious scruples,) we regard Lord Coke's illustration of that maxim. "In times past,' says that great and honest lawyer, "I find that the Houses of Parliament
NOTE 1.-In America, it is, the written law of the people, made by their chose representatives, having the assent of the executive of the State, who is als chosen by the people.
NOTE 2.-The enacting clause of a statute of congress, is thus expressed. "Be it enacted by the Senate and House of Representatives in Congress assembled." In a New York statute, it is: "The people of the State of New York, represented in Senate and Assembly, do enact as follows." In other States of the union, the form is substantially the same.
The constitutional requisites to the proper creation of a statute, in the National, and in the several State legislatures, are in substance and effect, so nearly similar, that it would be useless to do more than to give the outline of one.
By the constitution of the United States, (Art. 1,) the legislative power is vested in the Senate and House of Representatives, but before any bill can become a law, it must be presented to the President; if he approve he shall sign it; if not, he shall return it with his objections, to the house in which it shall have origina ted; who shall enter such objections at large upon their journal, and proceed ta reconsider it. If after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with tno objections to the other house, by which it shall also be reconsidereȧ. L approved by two-thirds of that house, it shall become a law.
have not been fairly dealt withal, but by cunning artifice of words, utterly deceived ; and that, too, in cases of the greatest moment, even in high treason.a
Lord Coke b commends some acts for being "shortly and artificially penned," and says, “it was the wisdom of ancient Parliaments to comprehend much matter in few words;" but this express recommendation (as it is) of brevity and compression, where the true legal effect, and real force and meaning of words, is duly understood, must not mislead. He c elsewhere pointedly says, “ abundans cautela non nocet, and the ancient sages of the law did ever make things, as plain, and leave as little to construction, as might be.” The parts of statutes are—in a popular, though not legal, sense : The custom of prefixing titles to statutes did not begin till about the eleventh year of the reign of Henry VII, though particular instances may have occurred before that time.a
The Title; The Preamble ;
6 2 Inst. 306; id. 401. c2 Inst. 375. NOTE 3.--By the constitution of the United States, Art. 1, Section 7, "every bill shall take effect as a law from the time it is approved by the President." This plain provision, as applicable to different cases, has had various interpretation. In Matthews v. Zanes, 7 Wheat. 164, it was declared that an act of Congress was operative from the date of its enactment, if no other time is fixed in the act. In such case the effect is prospective, and not retrospective. Matter of Richardson, 2 Story, C. C. R. 571. But it was held, in the Matter of Welman, in U. S. Dist. Court of Vermont, by Prentiss J., following the English decisions, that a statuto which takes effect from, and after its passage, goes into operation the day on whioh it is approved, and has relation to the first moment of that day; 20 Vt. R. 653. This may be very well as a general rule, but it is a construction by mere fiction of law, and is not truth. By such a fiction, a law might relate back and take effect before it was actually signed by the President. A more sensible view was taken by Story J., in the “ Matter of Richardson,” supra. He said: “I am aware it has often been laid down, that in law there are no fractions of a day. But this doctrine is only true sub modo, and in a limited sense, where it will promote the right and justice of the case, pro bono publico. It is a mere legal fiction, and, therefore, like all other legal fictions, is never allowed to operate against the right and justice of the case. On the contrary, the very truth and facts in point of time, may always be averred and proved in furtherance of the right and justice of the case; and there may even be priority in an instant of time; or in other words, it may bave a beginning and an end." Even in England, this rule of fiction was made to yield to the promotion of justice between parties, and, it was held that the fact could be alleged and proved to overturn this fiction. Roe v. Hersey, 3 Wils, R. 275. In illustration of the injustice of the fiction, the Court said: “Sometimes by a like fiction, the whole session of Parliament is considered As one day." All acts of Parliament of one session, are regarded as passed on the first day of the session.
Common sense, and common justice, equally sustain the propriety of allowing fractions of a day, whenever it will promote the purposes of substantial justice. The time of the approval of an act, is a question of fact. The constitution declares that to be the time, when the law takes effect. This act of approval cannot look backward, and by relation, or fiction, make that a law at any antecedent period of the same day, which was not so before the approval. The constitution cannot be abrogated by construction. The law prescribes a rule for the future, not for the past. And this in a republican government, is a doctrine of vital importance to the security and protection of the citizen. This is in accordance with the spirit of another provision of the constitution, that no expost facto law shall be passed. Take the supposed case of filing a bankrupt petition on a certain day at noon, when the law was in full force; and an act repealing the bankrupt law at eleven o'clock in the evening of the same day, or, the case of an act performed in the morning of a day, an act, that was innocent when performed, and a statute approved in the evening of the same day making such act an offence; could the party performing the act be punished ? clearly not. Here the law would regard the fractions of a day, and allow the fact to be alleged, and evidence to be given of the fact in furtherance of justice, and the matter of fact would overcome, even if the fiction stood against it.
In the State of New York, all fictions and presumptions of law on this subject, are changed by the Rev. Stat. (vol. 1, 157, § 12) which provides that every law, unless a different time be prescribed therein, shall commence and take effect throughout the State, on, and not before the twentieth day after the day of its final “passage." In Mississippi, they have a constitutional provision, that no law of a general nature, unless otherwise provided for, shall be enforced, until sixty days after its passage, (Const. Art. vii, $ 6.) In Michigan, by a like constitutional provision, no public act shall be in force, until ninety days from the end of the session of the legislature at which it was passed. (Const. Art. 4,
a Wiseman v. Cotten, Lord Raym. 77 ; Chance v. Adams, Hard. 324.