tions. And this is consistent with Savigny's position, that since by private international law a juridical act is governed by the law in which that act has its seat, we must, in order to find out what the act really is, inquire what is the law to which it is subject. When we have determined what that law is, we find what the common law is as to the particular issue. If we understand by "comity" simply politeness, meted out either at the caprice of the judge, or granted in consideration of similar concessions by the state whose law is for the particular case accepted, then "comity" is not the true foundation on which our acceptance of the rules of private international law rests. For when a foreign law binds a particular case, then it becomes part of our common law, and the parties are entitled of right to have it applied. This right, however, is not a purely natural right, based on the principle that as all men are equal, each man has a right to be judged according to his own law, wherever he is. On the contrary, the right in question is strictly a juridical right, which exists, so far as we are concerned, because our common law incorporates private international law in all cases to which that law applies.1 1 To make the dispensation of right a matter of politeness or of comity is an idea, argues Brocher, which must inspire us with greater or less repulsion. It rests on old errors, already abundantly refuted. At the same time the system has in it a certain element of truth. A practitioner must necessarily, in a pending case, inquire as to the law existing in the place where the case is to be tried. A judge is bound to take primarily into consideration the law he is charged to apply. Merely theoretical considerations cannot overrule positive precepts; but such considerations cannot, as a general rule, be set aside. To see in private international law only an ensemble of usages, without the influence of regulative principles, is to abandon the best means of illustrating even a question of positive law. The authorities have their history to explain them, on which their sense is dependent. And this history was not solely developed under the influence of reciprocal comity. There is a definite system of private international law to be applied to each case. Of this system the constituents are: (1.) the special legislation in force in each locality; (2.) certain international customs based on common ideas or interests; (3.) certain applicable treaties and diplomatic conventions; (4.) right reason operating through free logic. Brocher's Droit int. privé, pp. 10-13. To same effect see Hooker Ecc. Pol. book i., where it is maintained that fact and reason are the two coördinate factors of law. It is hard to understand, says Fiore, how comity can decide questions of right. Either the individual in question has certain rights, in his juridical capacity, which rights are recognized § 2. Convention has been sometimes mingled with courtesy as a basis for private international law; but they are in Nor of contheir nature distinct. A conventional right rests, if vention. not on treaty, at least on a mutual understanding between two extra-territorially, as a matter of law, and not of comity, or he has no rights, and depends solely on comity, in which case we have to deal exclusively with the arbitrary and the indeterminate. Fiore, Droit int. privé, 1875, § 33. Mr. Westlake, in a letter to Mr. Lawrence (Lawrence, Commentaire sur Wheaton, iii. 58), says that he agrees with Mr. Lawrence in substituting the word "justice" for "comity." Mr. Lawrence, after quoting this letter, adds, "Les expressions 'Collision' et Conflit des Lois' présupposent que les lois de différents pays sont toujour en conflit l'une avec l'autre, quand leur application à un cas particulier est mise en question; tandis qu'il est bien possible qu'elles, s'harmonisent toutes parfaitement et que toutes laissent la decision à la même loi et au même tribunal." Mr. Lawrence properly asks how an idea vague and flexible as that of comity could be taken as a rule of right. It should be added that the difference is really, in most cases, only verbal. Thus in Milliken v. Pratt, 125 Mass. 374, quoted infra, § 101, Chief Justice Gray speaks of comity as the ground for the recognition of foreign law. When we look, however, at the way in which this comity is applied by this learned judge, we find that it is subject as much to fixed and consistent rules as is any other branch of jurisprudence. It is not meant, therefore, that it is a matter of comity, to be discussed de novo in each particular case, whether we will interpret a contract according to the lex loci celebrationis, or whether we will apply to the practical working of a contract the lex loci solutionis, or whether as to extrinsic forms the rule locus regit actum is to prevail. These points are considered in the jurisprudence of Massachusetts, as well as in the jurisprudence of the rest of our states, to be as well settled as any rules establishing principles of domestic law. What "comity," therefore, means in the sense in which it is used in opinions such as we have just cited is, not that each case as it arises depends upon "comity" for its decision, but that the intercourse between sovereign states finds its original sanction in "comity." This is merely an application to states of the social contract theory of Locke. It may be unphilosophical. But limited to mere speculation, it does no practical mischief. It is consistent with the recognition of private international law as a component part of our jurisprudence. Mancini, in a criticism in the Journal du droit int. privé for 1874, concedes that the doctrine of comity has the support not only of Huber and Voet, but of Story, Rocco, Wheaton, Felix, and Phillimore. He holds, however, that this is attributable to the fact that these eminent writers have fallen into the error of confounding the absolute legislative power of each state with the unjust exercise of that power, and consequently of confounding that which is done with that which ought to be done. This false idea of a concession free, and not morally obligatory, on the part of each sovereign, by which a foreign applicatory law is recognized, he considers the principal obstacle in the way of nations. It cannot, in cases in which it is due, be denied, nor, if granted, is it granted as a matter of grace. But, as is argued by an eminent Italian professor and jurist,1 this theory does not settle the question, but only pushes the inquiry, in all cases where a tacit understanding is set up, a step further back. What is the law which was presumed to be accepted by the parties? This involves a series of new questions for the lex fori to determine. And the assumption that law owes its origin to convention is untrue as an absolute principle. We can undoubtedly expatriate ourselves. But while we remain in a country we are subject to its laws, no matter how much we may dissent from them. The law is accepted because it has to be obeyed; it is not obeyed because it is accepted. And the assumption that law is originally started by consent is equally false. Consent to obey law presupposes a law under which the consent is made. Nor of reciprocity. § 3. Reciprocity has been adopted by the codes of several states (e. g. France) as the basis of international law, the test being that we are to grant to the subjects of a foreign state only such privileges as the foreign state in question grants to the subjects of our own state. The system has been elaborately defended by eminent French and Italian jurists,2 and has been worked into several of our American treaties. Un forming a scientific system of private international law. Two consequences, he argues, follow from this hypothesis of comity: first, the sovereign, from whom the concession emanates, feels himself entitled, at his good pleasure, to limit and modify from time to time the concession; and, secondly, in a matter purely discretionary, it is not necessary to search for the rational principles of private international law. The science is thus reduced to a study of comparative legislation. He goes on to say, that more recently the doctrine of comity has not only lost its ancient favor, but has been logically overthrown. He invokes the great name of Savigny, who maintains that the rules established in each civilized state for the settlement of litigation involving foreign law are not to be regarded as mere courteous concessions, dependent upon caprice, but are a distinctive development of jurisprudence, following the same progress as is observed in the particular statutes of the same state. Savigny, vol. viii. p. 31. He adds, that all the members of the Commission appointed by the Institute on this topic, consisting of Messrs. Bluntschli, Hefter, Lawrence, Massé, and Westlake, concur in the same conclusion. The report of M. Mancini, as given to the Institute at its session in Geneva, in 1874, will be found in the Revue de droit int. 1875, pp. 329 et seq. 1 Fiore, Droit int. privé, trad. par Pradier-Fodéré, 1875, § 34. 2 Rocco, Diritto civile internazionale; Aubry et Rau, 3d ed. i. p. 261. doubtedly reciprocity may be a good basis for a diplomatic arrangement by which two or more states enter into a specific compact for the settlement of certain disputed issues. But if it be offered as a reason why a foreigner, coming before our courts, should have justice granted or refused to him, it is open to serious objections. (1.) It destroys all consistency in our rulings in international litigation, a litigation involving vast interests, and affecting many important titles. (2.) It makes civil justice a matter of diplomatic reprisal, authorizing the courts, at their discretion, to seize on and confiscate foreign rights, a function belonging not to the judicial, but to the legislative and executive departments. (3.) It leaves us without any mode of determining cases where the parties interested in presenting a claim belong to distinct nations, one extending, the other refusing, reciprocity. (4.) It is in conflict with the primary principle that to all persons equal justice should be given, without fear, favor, or affection. Penal laws are not exrial. tra-territo § 4. To the rule that the law to which a case is from its nature subject is to govern it everywhere, there are several marked exceptions. The first is that such law must not infringe the distinctive policy of the forum. The second is that one state will not execute the penal laws of another. This, so far as concerns the penalties imposed on crimes, will be hereafter fully illustrated.2 But the rule also applies to civil suits for penalties.3 And it is frequently invoked when the question of the application of foreign revenue laws comes up.1 1 See infra, §§ 104, 490. 2 See infra, § 108. * Ogden v. Folliott, 3 T. R. 720; Wolf v. Oxholm, 6 M. & S. 99; De Wolf v. Johnson, 10 Wheat. 367; Lindsay v. Hill, 66 Me. 212; Slack v. Gibbs, 14 Vt. 357; Halsey v. McLean, 12 Allen, 438; Gale v. Eastman, 7 Met. 14; Scoville v. Canfield, 14 Johns. 338; Winter ». Baker, 50 Barb. 482; Price v. Wilson, 67 Barb. 9; Willis v. Cameron, 12 Abb. Pr. 245; Derrickson v. Smith, 3 Dutch. 166; Richardson v. Burlington, 33 N. J. L. 190; First Nat. Bank of Plymouth v. Price, 33 Md. 487; Barnes v. Whitaker, 22 Ill. 606. Thus the bastardy statutes of one state will not be enforced as imposing penalties in another. Graham v. Monsergh, 22 Vt. 545; Richardson v. Burlington, 33 N. J. L. 192; Indiana v. Helmer, 21 Iowa, 370. As to laws interdicting such inquiries see infra, § 494; though the liability of a father to support an illegitimate child is a police question, not conditioned by the conception or birth of the child in another state. Duffies v. State, 7 Wis. 672; Kolbe v. People, 85 Ill. 336. Infra, § 257. 4 Infra, § 384. § 5. Expatri ation now internationally conceded. An important modification of the old law of allegiance is to be found in the now almost unanimous recognition of the right of expatriation. For many years the indissolubility of native allegiance was recognized by the courts of the United States, as well as by those of Europe. It is true that the consequent difficulties belong rather to the public than the private side of international law; yet even in the latter sphere, the embarrassments were not inconsiderable. Men were held, and that till very recently, to bear so close a relation to the country of their birth, that no matter how solemn and persistent might be their self-expatriation, they were bound by that country's personal laws. They were subject to 1 "In the United States, the inclination of the judiciary had been to follow the rule of the English common law, and to hold that neither a native nor a naturalized citizen can throw off his allegiance without consent of the state. Kent's Com. ii. 49; Story on the Constitution, iii. 3, n. 1; Wharton's State Trials, 654; 8 Opinions of Attorneys General, 157. But the legislative and executive departments have acted upon the principle that actual expatriation and new naturalization, when the act and the intent combine, not only deprive the citizen of all claim upon the protection of his original country, but deprive that country of claims upon its former citizen against the will of the country of his adoption. But no man can nounce allegiance to a country in which he continues to reside, whatever forms he may go through. Daly on Naturalization, 26. And if a naturalized citizen returns to the country of his birth, the United States has not interfered to protect him against the claims of that country for duties actually due from him as a subject before his naturalization. But it asserts a right to protect him against claims not ascertained and perfected before that time. For instance, if a foreign re subject has been completely enlisted An able and exhaustive treatise on Naturalization and Expatriation, by Mr. Lawrence, is to be found in the appendix to his edition of Wheaton. See, also, Lord Chief Justice Cockburn's treatise on Nationality, London, 1869; Hall on Int. Law, pp. 177, 189. |