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RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
$1. Ex- Every independent State is entitled to the exclusive power of power of legislation, in respect to the personal rights civil legislation.
ise and civil state and condition of its citizens, and in
a respect to all real and personal property situated within its territory, whether belonging to citizens or aliens. But as it often happens that an individual possesses real property in a State other than that of his domicile, or that contracts are entered into and testaments executed by him in a country different from either, or that he is interested in successions ab intestato, in such third country; it may happen that he is, at the same time, subject to two or three sovereign powers — to that of his native country or of his domicile, to that of the place where the property in question is situated, and to that of the place where the contracts have been made or the acts executed. The allegiance to the sovereign power of his native country exists from the birth of the individual, and continues till a change of nationality. In the two other cases he is considered subject to the laws, but only in a limited sense. In the foreign countries, where he possesses real property, he is called a non-resident land owner, (sujet forain;) in those in which the contracts are entered into, a temporary resident, (sujel passager). As, in general, each of these different countries is governed by a distinct legislation, conflicts between their laws often arise; that is to say, it is frequently a question which system of laws is applicable to the case. The collection of rules for determining the conflicts between the civil and criminal laws
of different States, is called private international law, Private international to distinguish it from public international law, which
regulates the relations of States.1
1 Fælix, Droit International Privé, $ 3.
The first general principle on this subject results im- $ 2. Con
flict of mediately from the fact of the independence of nations. laws. Every nation possesses and exercises exclusive sovereignty and jurisdiction throughout the full extent of its territory. It follows, from this principle, that the laws of every State control, of right, all the real and personal property within its territory, as well as the inhabitants of the territory, whether born there or not, and that they affect and regulate all the acts done, or contracts entered into within its limits.
Consequently, “every State possesses the power of regulating the conditions on which the real or personal property, within its territory, may be held or transmitted ; and of determining the state and capacity of all persons therein, as well as the validity of the contracts and other acts which arise there, and the rights and obligations which result from them; and, finally, of prescribing the conditions on which suits at law may be commenced and carried on within its territory.” 1
The second general principle is," that no State can, by its laws, directly affect, bind, or regulate property beyond its own territory, or control persons who do not reside within it, whether they be native-born subjects or not. This is a consequence of the first general principle; a different system, which would recognize in each State the power of regulating persons or things beyond its territory, would exclude the equality of rights among different States, and the exclusive sovereignty which belongs to each of them." 2
From the two principles, which have been stated, it follows that all the effect, which foreign laws can have in the territory of a State, depends absolutely on the express or tacit consent of that State. A State is not obliged to allow the application of foreign laws within its territory, but may absolutely refuse to give any effect to them. It may pronounce this prohibition with regard to some of them only, and permit others to be operative, in whole or in part. If the legislation of the State is positive either way, the tribunals must necessarily conform to it. In the event only of the law being silent, the courts may judge, in the particular cases, how far to follow the foreign laws, and to apply their provisions. The express consent of a State, to the application of foreign laws within its territory, is given by acts passed by its legislative authority, or by treaties concluded with other States. Its tacit consent is manifested by the deci. sions of its judicial and administrative authorities, as well as by the writings of its publicists. .
Fælix, Droit International Privé, $ 9.
2 Id. § 10.
There is no obligation, recognized by legislators, public author. ities, and publicists, to regard foreign laws; but their application is admitted, only from considerations of utility and the mutual convenience of States — ex comitate, ob reciprocam utilitatem. The public good and the general interests of nations have caused to be accorded, in every State, an operation more or less extended to foreign laws. Every nation has found its advantage in this course.
The subjects of every State have various relations with those of other States; they are interested in the business transacted and in the property situate abroad. Thence flows the necessity, or at least utility, for every State, in the proper interest of its subjects, to accord certain effects to foreign laws, and to acknow. ledge the validity of acts done in foreign countries, in order that its subjects may find in the same countries a reciprocal protection for their interests. There is thus formed a tacit convention among nations for the application of foreign laws, founded upon reciprocal wants. This understanding is not the same everywhere. Some States have adopted the principle of complete reci. procity, by treating foreigners in the same manner as their subjects are treated in the country to which they belong; other States regard certain rights to be so absolutely inherent in the quality of citizens as to exclude foreigners from them; or they attach such an importance to some of their institutions, that they refuse the application of every foreign law incompatible with the spirit of those institutions. But, in modern times, all States have adopted, as a principle, the application within their territories of foreign laws; subject, however, to the restrictions which the rights of sovereignty and the interests of their own subjects require. This is the doctrine professed by all the publicists who have written on the subject.
“Above all things,” says President Bohier, “ we must remember that, though the strict rule would authorize us to confine the operation of laws within their own territorial limits, their application has, nevertheless, been extended, from considerations of public utility, and oftentimes even from a kind of necessity. But, when neighboring nations have permitted this extension, they are not to be deemed to have subjected themselves to a foreign statute ; but to bave allowed it, only because they have found in it their own interest by having, in similar cases, the same advantages for their own laws among their neighbors. This effect given to foreign laws is founded on a kind of comity of the law of nations; by which different peoples have tacitly agreed that they shall apply, whenever it is required by equity and common utility, provided they do not contravene any prohibitory enactment.” 1
Huberus, one of the earliest and best writers on this subject, lays down the following general maxims, as adequate to solve all the intricate questions which may arise respecting it:
1. The laws of every State have force within the limits of that State, and bind all its subjects.
2. All persons within the limits of a State are considered as subjects, whether their residence is permanent or temporary.
3. By the comity of nations, whatever laws are carried into execution within the limits of any State, are considered as having the same effect everywhere, so far as they do not occasion a prejudice to the rights of other States and their citizens.
From these maxims, Huberus deduces the following general corollary, as applicable to the determination of all questions arising out of the conflict of the laws of different States, in respect to private rights of persons and property. .
All transactions in a court of justice, or out of court, whether testamentary or other conveyances, which are regularly done or executed according to the law of any particular place, are valid, even where a different law prevails, and where, had they been so transacted, they would not have been valid. On the other hand, transactions and instruments which are done or executed.contrary to the laws of a country, as they are void at first, never can be valid; and this applies not only to those who permanently reside in the place where the transaction or instrument is done or executed, but to those who reside there only temporarily; with this exception only, that if another State, or its citizens, would be affected by any peculiar inconvenience of an important naturé, by giving this effect to acts performed in another country, that State is not bound to give effect to those proceedings, or to consider them as valid within its jurisdiction.' (a)
1 Bohier, Observations sur la coutume de Bourgogne, ch. 23, SS 62, 63, p. 457.
$ 3. Lex Thus, real property is considered as not depending loci rei u sitæ. altogether upon the will of private individuals, but as having certain qualities impressed upon it by the laws of that country where it is situated, and which qualities remain indelible, whatever the laws of another State, or the private dispositions of its citizens, may provide to the contrary. That State, where this real property is situated, cannot suffer its own laws in this respect to be changed by these dispositions, without great confusion and prejudice to its own interests. Hence it follows, that the law of a place where real property is situated governs exclusively as to the tenure, the title, and the descent of such property.
This rule is applied, by the international jurisprudence of the · United States and Great Britain, to the forms of conveyance of real property, both as between different parts of the same con
| Huberus, Prælect. tom. ii. lib. i. tit. 3, de Conflictu Legum.
(a) [Commissions Rogatoires, by which testimony is obtained for the courts of one country, through the instrumentality of foreign tribunals, are very usual in the different States of Europe. It is only the English and American judges that do not resort to them. In the case of proceedings in the courts of those countries, requiring proof from abroad, a commission to take the testimony is addressed to one or more individuals, in the place where the testimony is to be obtained, .authorizing them to examine the witnesses on oath, on interrogatories sent to them. This examination is, however, necessarily voluntary on the part of the witnesses; as is also the acceptance of the duties of the commission, by the persons named in it. Moreover, the magistrates of the place may object to the execution of the commission, as an infringement on the exclusive judicial power which belongs to every State, throughout the whole extent of its territory. See Fælis, Droit International Privé, § 185.]
2 “ Fundamentum universæ hujus doctrinæ diximus esse, et tenemus, subjectionem hominum infra leges cujusque territorii, quamdiu illic agunt, quæ facit ut actus ab initio validus aut nullus, alibi quoque valere aut non valere non nequeat. Sed hæc ratio non convenit rebus immobilibus, quando illæ spectantur, non ut dependentes à liberâ dispositione cujusque patris-familias, verum quatenus certæ notæ lege cujusque reipublicæ ubi sitæ sunt, illis impressæ reperiuntur; hæ notæ manent indelebiles in istâ republica, quidquid aliarum civitatum leges, aut privatorum dispositiones, secus aut contra statuant; nec enim sine magnâ confusione prejudicioque reipublicæ ubi sitæ sunt res soli, leges de illis latæ, dispositionibus istis mutari possunt.” Huberus, liv. i. tit. 3, de Conflictu Leg. $ 15.