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As to personal property (mobilia) the lex loci contractús or lex domicilii may, in certain cases, prevail over that of the place
been once subject to the municipal laws of Austria, and while under her jurisdiction violated these laws, his withdrawal from that jurisdiction and acquiring a different national character would not exempt him from their operation whenever he again chose to place himself under them. Every nation, whenever its laws are violated by any one owing obedience to them, whether he be a citizen or a stranger, has a right to inflict the penalties incurred upon the transgressor, if found within its jurisdiction. The case is not altered by the character of the laws, unless they are in derogation of the well-established international code. No nation has a right to supervise the municipal code of another nation, or claim that its citizens or subjects shall be exempted from the operation of such code, if they have voluntarily placed themselves under it. The character of the municipal laws of one country does not furnish a just ground for other States to interfere with the execution of these laws, even upon their own citizens, when they have gone into that country and subjected themselves to its jurisdiction. If this country can rightfully claim no such exemption for its native-born or naturalized citizens, surely it cannot claim it for those who have at most but inchoate rights of citizens.
“ The above principle, that persons, being citizens or subjects of one State, and having violated the laws of another State, may be punished while they remain under, or are fairly brought within, the jurisdiction of the latter State, is too well established to be made a matter of serious controversy. It is clearly affirmed in, and indeed is the basis of, every extradition treaty. Each contracting party agrees to deliver up to the other, fugitive offenders - generally including its own citizens as well as strangers — for specified offences, to be dealt with according to the laws of the country demanding the surrender of them. It is true that there are some kinds of offences which are not, and ought not to be, included in extradition treaties: such, for instance, as are called political offences; yet, because one nation will not enter into a compact to deliver such offenders to another, that does not justify the inference that if such offenders go voluntarily within the jurisdiction of the country whose laws they have offended, they may not be rightfully punished, or that they can claim exemption from punishment if they were citizens of another country when the offence was committed, or had, after committing it, acquired another nationality.
* The country whose protection is invoked cannot, it is conceived, properly interpose in such a case, unless the municipal law, the violation of which is charged, contravenes some right of such country acquired by treaty stipulations, or otherwise.
“The principle does not at all interfere with the right of any State to protect its citizens, or those entitled to its protection, when abroad, from wrongs and injuries — from arbitrary acts of oppression or deprivation of property, as contradistinguished from penalties and punishments incurred by the infraction of the laws of the country within whose jurisdiction the sufferers have placed themselves. I do not discover any principle in virtue of which this government can claim, as where the property is situated. Huberus holds that not only the marriage contract itself, duly celebrated in a given place, is valid in all other places, but that the rights and effects of the contract, as depending upon the lex loci, are to be equally in force everywhere. If this rule be confined to personal property, it may be considered as confirmed by the unanimous authority of the public jurists, who unite in maintaining the doctrine that the incidents and effects of the marriage upon the property of the parties, wherever situated, are to be governed by the law of the matri. monial domicile, in the absence of any other positive nuptial contract. But if there be an express ante-nuptial contract, the rights of the parties under it are to be governed by the lex loci contractus.3
Effect of By the general international law of Europe and hankrupt America, a certificate of discharge obtained by a bank. discharge and title of rupt in the country of which he is a subject, and where assignees in
the contract was made and the parties domiciled, is valid to discharge the debtor in every other country;
valid to allo
a matter of right, the release of Tousig. He has voluntarily placed himself within the jurisdiction of the laws of Austria, and is suffering, as appears by the case as you present it, for the acts he had done in violation of those laws while he was an Austrian subject.” Cong. Doc. 33 Cong. 1 Sess. H. R. Ex. Doc. No. 41.
A case presenting the question how far a naturalized citizen of the United States, on his return to the country of his origin, could claim the interposition of the American legation to protect him against the performance of the duties imposed on him as a native subject, by the sovereign whose allegiance he had renounced, occurred in 1840, during Mr. Wheaton's residence at Berlin. To the application of a naturalized citizen of the United States, who had been required to perform military duty in Prussia, of which he was a native, he replied; “ Had you remained in the United States or visited any other foreign country (except Prussia) on your lawful business, you would have been protected by the American authorities at home and abroad, in the enjoyment of all your rights and privileges as a naturalized citizen of the United States. But having returned to the country of your birth, your native domicile and national character revert (so long as you remain in the Prussian dominions) and you are bound in all respects to obey the laws, exactly as if you had never emigrated.” Mr. Wheaton to J. P. Knocke, 24th July, 1840. MS. Despatches.
1“Porro, non tantum ipsi contractus ipsæque nuptiæ, certis locis ritè celebratæ, ubique pro justis et validis habentur; sed etiam jura et effecta contractuum nuptiarumque, in iis locis recepta, ubique vim suam obtinebunt.” Huberus, I. i. tit 3, de Conflict. Leg. $ 9.
2 Fælix, $ 66.
but the opinions of jurists and the practice of nations have been much divided upon the question, how far the title of his assignees or syndics will control his personal property situated in a foreign country, and prevent its being attached and distributed under the local laws in a different course from that prescribed by the bankrupt code of his own country. According to the law of most European countries, the proceeding which is commenced in the country of the bankrupt's domicile draws to itself the exclusive right to take and distribute the property. The rule thus established is rested upon the general principle that personal (or movable) property is, by a legal fiction, considered as situated in the country where the bankrupt had his domicile. But the principles of jurisprudence, as adopted in the United States, consider the lex loci rei site as prevailing over the lex domicilii in respect to creditors, and that the laws of other States cannot be permitted to have an extra-territorial operation to the prejudice of the authority, rights, and interests of the State where the property lies. The Supreme Court of the United States has therefore determined, that both the government under its prerogative priority, and private creditors attaching under the local laws, are to be preferred to the claim of the assignees for the benefit of the general creditors under a foreign bankrupt law, although the debtor was domiciled and the contract made in a foreign country.
3. The general rule as to the application of personal statutes yields in some cases to the operation of the lex contractus loci contractus.
to this rule. Thus a bankrupt's certificate under the laws of his own country can not operate in another State, to discharge him from his debts contracted with foreigners in a foreign country. And though the personal capacity to enter into the nuptial contract as to age, consent of parents, and prohibited degrees of affinity, &c., is generally to be governed by the law of the State of which the party is a subject, the marriage ceremony is always regulated by the law of the place where it is celebrated ; and if valid there,
The lex loci
1 Bell's Commentaries on the Law of Scotland, vol. ii. pp. 681-687. Rose's Cases in Bankruptcy, vol. i. p. 462. Kent's Commentaries on American Law, vol. ii. pp. 398, 404-408, 459, 5th edit. Cranch’s Rep. vol. v. p. 289 — Harrison v. Sterry. Wheaton's Rep. vol. xü. pp. 153–163 - Ogden v. Saunders.
it is considered as valid everywhere else, unless made in fraud of the laws of the country of which the parties are domiciled subjects.
$7. Lex II. The municipal laws of the State may also opeloci contractus.
omtrac rate beyond its territorial jurisdiction, where a contract made within the territory comes either directly or incidentally in question in the judicial tribunals of a foreign State.
A contract, valid by the law of the place where it is made, is, generally speaking, valid everywhere else. The general comity and mutual convenience of nations have established the rule, that the law of that place governs in every thing respecting the form, interpretation, obligation, and effect of the contract, wherever the authority, rights, and interests of other States and their citizens are not thereby prejudiced.1 Exceptions This qualification of the rule suggests the exceptions tion.pers which arise to its application. And,
1. It cannot apply to cases properly governed by the lex loci rei sitæ, (as in the case, before put, of the effect of a nuptial contract upon real property in a foreign State,) or by the laws of another State relating to the personal state and capacity of its citizens.
2. It cannot apply where it would injuriously conflict with the laws of another State relating to its police, its public health, its commerce, its revenue, and generally its sovereign authority, and the rights and interests of its citizens.
Thus, if goods are sold in a place where they are not prohibited, to be delivered in a place where they are prohibited, although the trade is perfectly lawful by the lex loci contractus, the price cannot be recovered in the State where the goods are deliverable, because to enforce the contract there would be to sanction a breach of its own commercial laws. But the tribunals of one country do not take notice of, or enforce, either directly or incidentally, the laws of trade or revenue of another State, and
1“ Rectores imperiorum id comiter agunt, ut jura cujusque populi intra terminos ejus exercita, teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium præjudicitur.” Huberus, l. i. tit. 3, de Conflict. Leg. 2.“ Effecta contractuum, certo loco initorum, pro jure loci illius alibi quoque observantur, si nullum inde civibus alienis creetur præjudicium, in jure sibi quæsito." Ib. $ 11.
therefore an insurance of prohibited trade may be enforced in the tribunals of any other country than that where it is prohibited by the local laws.
Huberus holds that the contract of marriage is to be for governed by the law of the place where it is celebrated, marriages. excepting fraudulent evasions of the law of the State to which the party is subject. Such are marriages contracted in a foreign State, and according to its laws, by persons who are minors, or otherwise incapable of contracting, by the law of their own country. But according to the international marriage English law, law of the British Empire, a clandestine marriage in Scotland, of parties originally domiciled in England, who resort to Scotland, for the sole purpose of evading the English marriage act, requiring the consent of parents or guardians, is considered valid in the English Ecclesiastical Courts. This jurisprudence is said to have been adopted upon the ground of its being a part of the general law and practice of Christendom, and that infinite confusion and mischief would ensue, with respect to legitimacy, succession, and other personal and proprietary rights, if the validity of the marriage contract was not determined by the law of the place where it was made. The same principle has been
1 Pardessus, Droit Commercial, pt. vi. tit. 7, ch. 2, § 3. Emerigon, Traité d'Assurance, tom. i. pp. 212–215. Park on Insurance, p. 341, 6th ed. The moral equity of this rule has been strongly questioned by Bynkershoek and Pothier.
? " Si licitum est, eo loco ubi contractum et celebratum est, ubique validum erit, effectumque habebit, sub eâdem exceptione, prejudicii aliis non creandi.” Huberus, De Conflict. Leg. l. i. tit. 3, § 8. He puts, as an example of this exception, the case of parties going into another country, merely to evade the law of their own, as to majority and guardianship. “ Sæpe fit, adolescentes sub curatoribus agentes, furtivos amores nuptiis conglutinare cupientes, abeant in Frisiam Orientalem, aliave loca, in quibus curatorum consensus ad matrimonium non requiritur, juxta leges Romanas, quæ apud nos hâc parte cessant. Celebrant ibi matrimonium, et mox redeunt in patriam. Ego ita existimo, hanc rem manifeste pertinere ad eversionem juris nostri ; et ideo non esse magistratûs, huic obligatos, è jure gentium, ejusmodi nuptias agnoscere et ratas habere. Multoque magis statuendum est, eos contra jus gentium facere videri, qui civibus alieni imperii suâ facilitate, jus patriis legibus contrarium, scientes, volentes, impertiuntur.” De Conflict. Leg. Idem.