of our language; but rather to a desire to familiarize expressions, which in this peculiar sense have already found their way into our juridical discussions, and are becoming daily more and more important to be understood by American lawyers, since they are incorporated into the very substance of the jurisprudence of some of the States in the Union. By the personality of laws foreign jurists generally mean all laws which concern the condition, state, and capacity of persons; by the reality of laws, all laws which concern property or things; quæ ad rem spectant. Whenever they wish to express that the operation of a law is universal, they compendiously announce that it is a personal statute; and whenever, on the other hand, they wish to express that its operation is confined to the country of its origin, they simply declare it to be a real statute. CHAPTER II. GENERAL MAXIMS OF INTERNATIONAL JURISPRUDENCE. [* § 17. General maxims first to be considered. § 18. The fundamental one, the omnipotence of each sovereign. 19. Classification of Boullenois. § 20. Corollary, that no law binds, extra-territorially. § 21. The extent of natural allegiance. § 22. Any state may pass laws affecting the status of its natural subjects after their return, wherever domiciled at the time. § 23. But no law can have any operation, extra-territorially, except by consent of the local sovereign. § 24. This department of law generally left with the courts. § 25. Laws in one age or country not applicable always and everywhere. § 26. The writers have struggled to extract a general principle. § 27. Difficulty of subject, illustrated by slavery. 28. Mr. Justice Porter's discussion of the point. § 29. Huberus's axioms affecting the subject. § 30. Hertius's discussion of these axioms. § 31. The authority Huberus extensively recognized. § 32. No law of one country can affect injuriously another country or its subjects. 1 See note to 2 Kent, Comm. Lect. 39, p. 456, 3d. edit. * 1 Boullenois, Observ. 3, p. 41, 42. — Mr. Livermore, in his Dissertations, used the words, personality and reality; Mr. Henry, in his work, the words, personalty and realty. I have preferred the former, as least likely to lead to mistakes, as "personalty" is in our law confined to personal estate, and "realty" to real estate. § 33, 34. The effect of foreign laws matter of comity. § 35. It seems to rest upon mutual interest and convenience. $36. It is really matter of comity and not of binding obligation. § 37. Lord Stowell's expressive definition of the principle. 38. It rests upon the comity of nations, not of the courts. § 38 a. Statement of the extent to which comity operates, in determining the force of foreign law.] § 17. BEFORE entering upon any examination of the various heads, which a treatise upon the Conflict of Laws will naturally embrace, it seems necessary to advert to a few general maxims or axioms, which constitute the basis upon which all reasonings on the subject must necessarily rest; and without the express or tacit admission of which it will be found impossible to arrive at any principles, to govern the conduct of nations, or to regulate the due administration of justice. § 18. I. The first and most general maxim or proposition is that which has been already adverted to, that every nation possesses an exclusive sovereignty and jurisdiction within its own territory. The direct consequence of this rule is, that the laws of every state affect and bind directly all property, whether real or personal, within its territory; and all persons who are resident within it, whether natural-born subjects or aliens; and also all contracts made and acts done within it. A state may, therefore, regulate the manner and circumstances, under which property, whether real, or personal, or in action, within it, shall be held, transmitted, bequeathed, transferred, or enforced; the condition, capacity, and state of all persons within it; the validity of contracts, and other acts, done within it; the resulting rights and duties growing out of these contracts and acts; and the remedies, and modes of administering justice in all cases calling for the interposition of its tribunals to protect, and vindicate, and secure the wholesome agency of its own laws within its own domains. § 19. Accordingly, Boullenois has laid down the following among his general principles (Principes généraux). He says, (1.) He, or those, who have the sovereign authority, have the sole right to make laws; and these laws ought to be executed in all places within the sovereignty, where they are known, in the prescribed manner. (2.) The sovereign has power and authority over his subjects, and over the property which they possess within 1 Henry on Foreign Law, P. 1, ch. 1, § 1, p. 1; Huberus, Lib. 1, tit. 3, § 2; Campbell v. Hall, Cowp. R. 208; Ruding v. Smith, 2 Hagg. Consist. R. 383. his dominions. (3.) The sovereign has also authority to regulate the forms and solemnities of contracts which his subjects make within the territories under his dominions; and to prescribe the rules for the administration of justice. (4.) The sovereign has also a right to make laws to govern foreigners, in many cases; for example, in relation to property, which they possess within the reach of his sovereignty; in relation to the formalities of contracts, which they make within his territories; and in relation to judiciary proceedings, if they institute suits before his tribunals. (5.) The sovereign may in like manner make laws for foreigners, who even pass through his territories; but these are commonly simple laws of police, made for the preservation of order within his dominions; and these laws are either permanent, or they are made only for certain particular occurrences. The same doctrine is, either tacitly or expressly, conceded by every other jurist, who has discussed the subject at large, whether he has written upon municipal law, or upon public law.2 § 20. II. Another maxim, or proposition, is, that no state or nation can, by its laws, directly affect, or bind property out of its own territory, or bind persons not resident therein, whether they are natural-born subjects or others. This is a natural consequence of the first proposition; for it would be wholly incompatible with the equality and exclusiveness of the sovereignty of all nations, that any one nation should be at liberty to regulate either persons or things not within its own territory. It would be equivalent to a declaration, that the sovereignty over a territory was never exclusive in any nation, but only concurrent with that of all nations; that each could legislate for all, and none for itself; and that all might establish rules, which none were bound to obey. The absurd results of such a state of things need not be dwelt upon. Accordingly Rodenburg has significantly said, that no sovereign has a right to give the law beyond his own dominions; and if he attempts it, he may be lawfully refused obedience; for wherever the foundation of laws fails, there their force and jurisdiction fail also. Constat igitur extra territorium legem dicere licere nemini, idque si fecerit quis, impune ei non pareri; quippe ubi cesset statutorum fundamentum, robur, et jurisdictio.3 P. Voet speaks to the 1 1 Boullenois, Traité des Statuts, p. 2, 3, 4. 2 Vattel, p. 2, ch. 7, § 84, 85. . Rodenburg, de Stat. ch. 3, § 1, p. 7. same effect: Nullum statutum sive in rem, sive in personam, si de ratione juris civilis sermo instituatur, sese extendit ultra statuentis territorium.1 Boullenois (as we have seen) announces the same rule: De droit étroit, toutes les loix, que fait un souverain, n'ont force et autorité que dans l'étendue de sa domination; 2 and, indeed, it is the common language of jurists.3 Mr. Chief Justice Parker has recognized the doctrine in the fullest manner. "That the laws" (says he) "of any state cannot by any inherent authority be entitled to respect extra-territorially, or beyond the jurisdiction of the state, which enacts them, is the necessary result of the independence of distinct sovereignties."4 § 21. Upon this rule there is often ingrafted an exception, of some importance to be rightly understood. It is, that although the laws of a nation have no direct binding force, or effect, except upon persons within its own territories; yet that every nation has a right to bind its own subjects by its own laws in every other place.5 In one sense this exception may be admitted to be correct, and well founded in the practice of nations; in another sense it is incorrect, or, at least, it requires qualification. Every nation has hitherto assumed it as clear, that it possesses the right to regulate and govern its own native-born subjects everywhere; and consequently, that its laws extend to, and bind such subjects at all times, and in all places. This is commonly adduced as a consequence of what is called natural allegiance, that is, of allegiance to the government of the territory of a man's birth. Thus, Mr. Justice Blackstone says: "Natural allegiance is such as is due from all men, born within the king's dominions, immediately upon their birth." "Natural allegiance is, therefore, a debt of gratitude, which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance. An Englishman, who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now.' And he proceeds to distinguish it from local alle 1 Voet, de Stat. § 4, ch. 2, n. 7, p. 124; Id. 138, 139, edit. 1661. * 1 Boullenois, des Statut. Princep. Gén. 6, p. 4; Id. ch. 3, Observ. 10, * Idem. p. 152. Blanchard v. Russell, 13 Mass. R. 4. The same doctrine is reasoned out with great ability in the opinion of Mr. Chief Justice Taney in the case of the Bank of Augusta u. Earle, 13 Peters, R. 584 to 591. Henry on Real and Personal Statutes, P. 1, ch. 1, p. 1. 1 Black. Comm. 369, 370; Foster, C. L. 184. giance, which is such as is due from an alien, or stranger born, for so long a time as he continues within the dominions of a foreign prince. The former is universal and perpetual; the latter ceases the instant the stranger transfers himself to another country;1 and it is, therefore, local and temporary. Vattel, on the other hand, seems to admit the right of allegiance not to be perpetual even in natives; and that they have a right to expatriate themselves, and, under some circumstances, to dissolve their connection with the parent country.2 § 22. Without entering upon this subject, (which properly belongs to a general treatise upon public law,) it may be truly said, that no nation is bound to respect the laws of another nation, made in regard to the subjects of the latter, who are non-residents. The obligatory force of such laws of any nation cannot extend beyond its own territories. And if such laws are incompatible with the laws of the country, where such subjects reside, or interfere with the duties which they owe to the country where they reside, they will be disregarded by the latter. Whatever may be the intrinsic or obligatory force of such laws upon such persons, if they should return to their native country, they can have none in other nations wherein they reside. Such laws may give rise to personal relations between the sovereign and subjects, to be enforced in his own domains; but they do not rightfully extend to other nations. Statuta suo clauduntur territorio, nec ultra territorium disponunt. Nor, indeed, is there, strictly speaking, any difference in this respect, whether such laws concern the persons, or concern the property of native subjects. A state has just as much intrinsic right, and no more, to give to its own laws an extra-territorial force as to the property of its subjects situated abroad, as it has in relation to the persons of its subjects domiciled abroad. That is, as sovereign laws, they have no obligation on either the person or the property. When, therefore, we speak of the right of a state to bind its own native subjects everywhere, we speak only of its own claim and exercise of sovereignty over them when they return within its own territorial jurisdiction, and not of its right to compel or require obedience to such laws on the part of other nations within their own territorial sovereignty. On the contrary, every nation has an exclusive right to regulate per 1 1 Black. Comm. 369, 370; Foster, C. L. 184. Vattel, B. 1, ch. 19, § 220 to 228. |