has since been called the Alabama in the manner they did, and that they have committed no offence against either the common law or the Foreign Enlistment Act with reference to that ship. I am of opinion that the simple building of a ship, even although the ship be of a kind apparently adapted for warlike purposes, and delivering such ship to a purchaser in an English port, even although the purchaser is suspected or known to be the agent of a foreign belligerent Power, does not constitute an offence against the Foreign Enlistment Act (59 Geo. 3, c. 69, s. 7), on the part of the builder, unless the builder makes himself a party to the equipping of the vessel for warlike purposes. The Alabama, indeed, appears to me to have been equipped at the Azores, and not in England at all." And this opinion was confirmed by Sir Hugh Cairns and Mr. Kemplay, who added that it would not be altered if the fact were that the builders knew they were building the Alabama for an agent of the Confederate Government. See the report of the trial, Attorney General v. Sillem, "The Alexandra " (London, 1863). Parliament has no general power to legislate for foreigners out of the Parliament to dominions and beyond the jurisdiction of the British Crown, but it legislate for may fix a time within which application must be made for redress to foreigners. the courts of justice. This is matter of procedure, and becomes part of the lex fori: Lopez v. Burslem, 4 Moore, P. C. 300.

Power of

An Act was passed by Congress in 1850, to carry into effect certain. stipulations in the treaties between the United States and China, Japan, Siam, Turkey, Persia, Tripoli, Tunis, Morocco, and Muscat, by which the laws of the United States are extended over American citizens in those countries, and ministers and consuls have full judicial powers given to them. The President is authorized to appoint marshals to execute process: see Woolsey's Internat. Law, s. 65.

In an American case, Rose v. Himeley, 4 Cranch, 241, where a vessel, after trading with rebels at St. Domingo, was seized more than ten leagues from the coast by a French privateer, and taken to a Spanish port and sold, and was afterwards condemned by a French tribunal at St. Domingo under municipal law, the Court held that any seizure for breach of a municipal regulation beyond the limits of the territorial jurisdiction was not warranted by the law of nations, and invalid. "It may be said," observes Dana, in a note to Wheaton's Internat. Law, s. 180, "that the principle is settled that municipal seizures cannot be made for any purpose beyond territorial waters. It is also settled that the limit of these waters is, in the absence of treaty, the marine league, or the cannon-shot." In the case of the Cagliari in 1857, the present Queen's Advocate, Sir Travers Twiss, gave an opinion that, "in ordinary cases where a merchant ship has been seized on the high seas, the Sovereign whose flag has been violated waives his privilege; considering the offending ship to have acted with mala fides towards the other State with which he is in amity, and to have consequently forfeited any just claim to his protection."

239

CHAPTER VIII.

ON THE LEX LOCI AND LEX FORI (1).

A CONTRACT valid by the law of the place where it was made is, Lex Loci. generally speaking, valid everywhere else. 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 præjudicetur. -Huber, de Conflict Leg. ii. lib. i. tit. 3, s. 3.

V.

The interpretation of contracts, and the legal rights arising out of them, are governed by the lex loci where they were made: Wriggleworth v. Dallison, 1 Doug. 201, 202; Holman v. Johnson, Cowp. 341; Lacon v. Hooper, 6 T. R. 224; Webb v. Plumer, 2 B. & Al. 746; De la Vega v. Vianna, 1 B. & Ad. 284; Dalrymple Dalrymple, 2 Hagg. Cons. R. 60, 61; Donn v. Lipman, 5 Cl. & Fin. 1; Ferguson v. Fyffe, 8 Cl. & Fin. 121; Munroe v. Pilkington, 31 L.J. (Q.B.) 81; Peninsular and Oriental Steam Navigation Company v. Shand, 3 Moore, P. C. (N. S.) 272; Leroux v. Brown, 12 C. B. 801. Where an action was brought in this country by the syndics of a French bankrupt, upon an ordinance in France whereby the defendant was adjudged to pay to the bankrupt a sum of money, the Court said: "This is a peculiar right of action created by the law of that country; and we think it may by the comity of nations be enforced in this, as much as the right of foreign assignees, or curators, or foreign corporations, appointed or created in a different way from that which the law of this country requires:" Alivon v. Furnival, 1 C. M. & R. 296; see Solomons v. Ross, 1 H. Bl. 131, note.

(1) The subject of this chapter is naturally connected with that of the preceding one; but I was not able to find any Law Officers' or other Opinions directly relating to it. I have, therefore, thought it better and more convenient to place these notes in the text.

Where contract illegal by Lex Loci.

In Somersett's Case, 20 State Tr. 1 (a case of trover for a slave), Lord Mansfield said: "I am quite clear that the act of detaining a man as a slave can only be justified by the law of the country where the act is done, although contracts are to be construed according to the law of the country where they are entered into, and the succession to personal property according to the law of the country where the deceased owner was domiciled at the time of his death."

The principle of giving validity to contracts according to the lex loci where they are made, is said not to apply where that law is contra bonos mores, or contrary to the public law of the State where they are sought to be enforced, or to the general wellbeing of society. "It cannot apply," says Wheaton, s. 90, " 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." "There is no exception to the rule as to the universal validity of contracts; which is, that no nation is bound to recognize or enforce any contracts which are injurious to its own interests, or to those of its own subjects." Huber (de Conflict Leg., lib. i. tit. 3, s. 2) has expressed it in the following terms :-“Quatenus nihil potestati aut juri alterius imperantis ejusque civium præjudicetur :” see Story, Conf. Laws, s. 244. In Forbes v. Cochrane, 2 B. & C. 471, Best, C.J., said, that the comity of nations "is a maxim that cannot prevail in any case where it violates the law of our own country, the law of nature, or the law of God. . . . . If the right sought to be enforced is inconsistent with either of these, the English municipal courts cannot recognize it." Woolsey (Internat. Law, s. 72), citing Savigny (Rom. Recht. s. 374), says: "Wherever a law of a strictly positive nature opposes the matter of the contract, the lex fori contractus must be applied. Thus if a suit for interest due on money be brought in a place where the usury laws would render such a transaction void, the Judge must follow his own law." Story says (Conflict of Laws, s. 340): "In a very recent case the Supreme Court of the United States have adopted the doctrine, that when a contract is made in one place to be executed in another, it is to be governed as to usury by the law of the place of performance, and not by the law of the place where it is made. So that, if the

transaction is bonâ fide, and not with intent to evade the law against usury, and the law of the place of performance allows a higher rate of interest than that permitted at the place of the contract, the parties may lawfully stipulate for the higher interest. But then the transction must be bona fide, and not intended as a mere error of usury." And again, s. 305: “It has been said that if the principle be that a contract valid in the place where the contract is celebrated is void if it is contrary to the law of the place of payment, it must establish the universal proposition, that a contract void by the law of the place where it is made is valid, if good by the law of the place of payment. This would seem to be reasonable, and the doctrine is supported by the modern cases, notwithstanding the old cases have been supposed to lead to a contrary conclusion."

As to the rule of English law in such cases, see Robinson v. Bland, 2 Burr. 1077; Holman v. Johnson, Cowp. 341; Pellecatt v. Angell, 2 C. M. & R. 311; Spence v. Chadwick, 10 Q. B. 517, 2 Sim. 194; Hyde v. Hyde, L. R. 1 Prob. & Div. 131. An exception has been thought to exist in cases of contracts made in violation of the revenue laws: Cas. temp. Hardwicke, 85; 2 Rob. D. & M. 6; Planché v. Fletcher, 1 Douglas, 251; Holman v. Johnson, 1 Cowp. 341; Pellecatt v. Angell, 2 C. M. & R. 311. But the old idea that there is a distinction between statutes which have in view the protection of the revenue, and those which have in view other objects, if the contract is rendered illegal by them, is now exploded; and a contract is rendered void where the statute only inflicts a penalty, for such a penalty implies a prohibition: Cope v. Rowlands, 2 M. & W. 157; see Spence v. Chadwick, 10 Q. B. 517. If the want of a stamp renders a contract made in a foreign country void, it cannot be enforced here: Alves v. Hodgson, 7 T. R. 241. Aliter, if the stamp is required only to enable the document embodying the contract to be given in evidence: Bristow v. Sequeville, 5 Ex. 275.

A contract by British subjects relating to the sale and purchase of slaves in a country where slavery is legal, may be enforced in the courts of this country, notwithstanding statute 5 Geo. 4, c. 113, and by the force of 6 & 7 Vict. c. 98, s. 5: so held by a majority of the Court of Error in Santos v. Illidge, 29 L. J. (C. P.) 348, reversing the judgment of the Court below, 28 L. J. (C. P.) 317.

R

Foreign Court acting perversely.

Bills of
Exchange.

Blackburn, J., said: "Assuming the taking to have been prohibited by a British Act, still the taking having been of property locally situate in a foreign country, in a manner lawful according to the laws of that country, I apprehend that the property actually passed by the sale, and vested in the purchasers, though they committed a felony according to our law by taking it." See Somersett v. Stewart, Lofft., 17; Smith v. Brown, 2 Salk. 666; Smith v. Gould, Ibid.; Mittelholzer v. Fullarton, 6 Q. B. 989; Madrazo v. Willes, 3 B. & Al. 353-as to which it was said by Willes, J., in Santos v. Illidge, 28 L. J. (C. P.) 318, "That case has been wondered at;" Buron v. Denman, 2 Ex. 167.

"If the penal laws of a foreign country," said the Court in Folliott v. Ogden, 1 H. Bl. 135, "do not in themselves import a personal disability to sue in this, neither do they, by diverting the property of a person in that country, take away his right of action in England. . . . The penal laws of foreign countries are strictly local, and affect nothing more than that they can reach and can be seized by virtue of their authority; a fugitive who passes hither comes with all his transitory rights; he may recover money held for his use, stock, obligations, and the like, and cannot be affected in this country by proceedings against him in that which he has left, beyond the limits of which such proceedings do not extend."

A contract illegal in the place where it was made, is generally held to be invalid everywhere: Robinson v. Bland, 2 Burr. 1077; 2 Kent, Com. 458; Story, Conf. Laws, s. 243.

The question of disability to make a contract on account of infancy is decided by the lex loci: Male v. Roberts, 3 Esp. 163, where Lord Eldon said: "I hold myself not warranted in saying that such a contract is void by the law of Scotland (where it was made) because it is void by the law of England."

Where a foreign Court acts perversely and in defiance of the comity of nations, by refusing to recognize a title to property acquired according to the laws of England, its judgment will not be regarded by the English Courts: Simpson v. Fogo, 32 L. J. (Ch.) 249; see Cammell v. Sewell, 29 L. J. (Ex.) 350; Castrique v. Imrie, 30 L. J. (C. P.) 177; Woolf v. Oxholm, 6 M. & S. 92.

The indorsee of a bill of exchange drawn, accepted, and pay