sons and things within its own territory according to its own sovereign will and public policy. § 23. III. From these two maxims or propositions there flows a third, and that is, that whatever force and obligation the laws of one country have in another, depend solely upon the laws and municipal regulations of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent.1 A state may prohibit the operation of all foreign laws, and the rights growing out of them, within its own territories. It may prohibit some foreign laws, and it may admit the operation of others. It may recognize, and modify, and qualify some foreign laws; it may enlarge or give universal effect to others. It may interdict the administration of some foreign laws; it may favor the introduction of others. When its own code speaks positively on the subject, it must be obeyed by all persons who are within the reach of its sovereignty. When its customary, unwritten, or common law speaks directly on the subject, it is equally to be obeyed; for it has an equal obligation with its positive code. When both are silent, then, and then only, can the question properly arise, what law is to govern in the absence of any clear declaration of the sovereign will. [This may be determined either by the express statute of the legislative power in a state, or, in defect of that, by the decisions and constructions of the courts.] § 24. Upon the continent of Europe some of the principal states have silently suffered their courts to draw this portion of their jurisprudence from the analogies furnished by the civil law, or by their own customary or positive code. France, for instance, composed, as it formerly was, of a great number of provinces, governed by different laws and customs, was early obliged to sanction such exertions of authority by its courts, in order to provide for the constantly occurring claims of its own subjects, living and owning property in different provinces, in a conflict between the different provincial laws. In England and America the courts of justice have hitherto exercised the same authority in the most ample manner; and the legislatures have in no instance (it is believed) in either country interfered to provide any positive regulations. The common law of both countries has been expanded to meet the exigencies of the times, as they have arisen; and so far as the practice of nations, or the jus gentium privatum, has been supposed to furnish any 1 Huberus, Lib. 1, tit. 3, § 2. general principle, it has been followed out with a wise and manly liberality. § 25. The real difficulty is to ascertain, what principles in point of public convenience ought to regulate the conduct of nations on this subject, in regard to each other, and in what manner they can be best applied to the infinite variety of cases arising from the complicated concerns of human society in modern times. No nation can be justly required to yield up its own fundamental policy and institutions, in favor of those of another nation. Much less can any nation be required to sacrifice its own interests in favor of another; or to enforce doctrines which, in a moral or political view, are incompatible with its own safety, or happiness, or conscientious regard to justice and duty. In the endless diversities of human jurisprudence many laws must exist in one country, which are the result of local or accidental circumstances, and are wholly unfit to be ingrafted upon the institutions and habits of another. Many laws, well enough adapted to the notions of heathen nations, would be totally repugnant to the feelings, as well as to the justice of those which embrace Christianity. A heathen nation might justify polygamy, or incest, contracts of moral turpitude, or exercises of despotic cruelty over persons, which would be repugnant to the first principles of Christian duty. The laws of one nation may be founded upon a narrow selfishness, exclusively adapted to promote its own peculiar policy, or the personal or proprietary interest of its own subjects, to the injury or even the ruin of those of the subjects of all other countries. A particular nation may refuse all reciprocity of commerce, rights, and remedies to others. It may assume a superiority of powers and prerogatives, for the very purpose of crushing those of its neighbors, who are less fortunate or less powerful. In these, and in many other cases, which may easily be put, without any extravagance of supposition, there would be extreme difficulty in saying, that other nations were bound to enforce laws, institutions, or customs of that nation which were subversive of their own morals, justice, or polity. Who, for instance, (not to multiply cases), who would contend that any nation in Christendom ought to carry into effect, to its utmost range, the paternal power of the ancient Romans in their early jurisprudence, extending to the life and death of their children? Or, who would now contend for that terrible Laws of the Twelve Tables, Table 4, ch. 1; 1 Pothier, Pandects, and Id. § 1, power (if it ever really existed) under the law of the Twelve Tables, which enabled creditors to cut their debtor's body into pieces, and divide it among them? 1 § 26. The jurists of continental Europe have with uncommon skill and acuteness endeavored to collect principles which ought to regulate this subject among all nations. But it is very questionable, whether their success has been at all proportionate to their labor; and whether their principles, if universally adopted, would be found either convenient, or desirable, or even just, under all circumstances. Their systems, indeed, have had mainly in view the juridical polity, fit for the different provinces and states of a common empire, although they are by no means limited to such cases. It is easy to see, that, in a nation, like France before the Revolution, governed by different laws in its various provinces, some uniform rules might be adopted which would not be equally fit for the adoption of independent nations, possessing no such common interests, or such a common basis of jurisprudence. The leading positions maintained by many of the French jurists are, that the laws of a country which concern persons, who reside within and are subject to the territorial jurisdiction, ought to be deemed of universal obligation in all other countries; that the laws, which concern the property of such persons, ought to be deemed purely local, and the laws of a mixed character, concerning such persons and property, ought to be deemed local, or universal, according to their predominant character. Thus, Boullenois lays down these rules in pointed terms: Les loix pures personelles, soit personelles universelles, soit personelles particulières, se portent partout; c'est à dire, que l'homme est partout de l'état, soit universel, soit particulier, dont sa personne est affectée, par la loi de son domicil. Les loix réelles n'ont point d'extension directe, ni indirecte, hors la jurisdiction et la domination du legislateur. Le sujet et le materiel dominant direct et immediat du statut en determine la nature et qualité; c'est à dire, que le sujet et le materiel le font être réel, ou personnel.2 § 27. Independent of the almost insurmountable difficulties, in which the continental jurists admit themselves to be involved, in 2, (8vo. edit. Paris, 1818, p. 386, 387); 1 Black. Comm. 452; Fergusson on Marriage and Divorce, 411; Grotius, B. 2, ch. 5, sec. 7. 1 Table 3, ch. 4; 1 Pothier, Pandects, and Id. Comm. § 2, (8vo. edit. Paris, 1818, p. 372, 380, 381); 2 Black. Comm. 472, 473. 2 the attempt to settle the true character of these mixed cases of international jurisprudence, and about which they have been engaged in endless controversies with each other, there are certain exceptions to these rules, generally admitted, which shake the very foundation on which they rest, and admonish us that it is far easier to give simplicity to systems, than to reconcile them with the true duties and interests of all nations in all cases. Take, for example, two neighboring states, one of which admits, and the other of which prohibits the existence of slavery, and the rights of property growing out of it; what help would it be to either, in ascertaining its own duties and interests in regard to the other, to say, that their laws, so far as they regard the persons of the slaves, were of universal obligation; and, so far as they regard the property in slaves, they were real, and of no obligation beyond the territory of the lawgiver?1 § 28. There is, indeed, great truth in the remarks which have been judicially promulgated on this subject by a learned court. "When so many men of great talents and learning are thus found to fail in fixing certain principles, we are forced to conclude, that they have failed, not from want of ability, but because the matter was not susceptible of being settled on certain principles. They have attempted to go too far, to define and fix that which cannot, in the nature of things, be defined and fixed. They seem to have forgotten, that they wrote on a question which touched the comity of nations, and that that comity is, and ever must be, uncertain. That it must necessarily depend on a variety of circumstances, which cannot be reduced to any certain rule. That no nation will suffer the laws of another to interfere with her own to the injury of her citizens. That, whether they do or not, must depend on the condition of the country in which the foreign law is sought to be enforced; the particular nature of her legislation, her policy, and the character of her institutions. That in the conflict of laws, it must often be a matter of doubt which should prevail; and that whenever a doubt does exist, the court, which decides, will prefer the laws of its own country to that of the stranger." 2 § 29. Huberus has laid down three axioms, which he deems sufficient to solve all the intricacies of the subject. The first is, 1 See Somerset's case, and Hargrave's note to Co. Lit. 79 b, note 44. Mr. Justice Porter, in delivering the opinion of the court in the case of Saul v. His Creditors, 17 Martin, R. 569, 595, 596. that the laws of every empire have force only within the limits of its own government, and bind all, who are subjects thereof; but not beyond those limits. The second is, that all persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof.2 The third is, that the rulers of every empire from comity admit, that the laws of every people, in force within its own limits, ought to have the same force everywhere, so far as they do not prejudice the powers or rights of other governments, or of their citizens.3 "From this," he adds, "it appears, that this matter is to be determined, not simply by the civil laws, but by the convenience and tacit consent of different people; for since the laws of one people cannot have any direct force among another people, so nothing could be more inconvenient in the commerce and general intercourse of nations, than that what is valid by the laws of one place should become without effect by the diversity of laws of another; and that this is the true reason of the last axiom, of which no one hitherto seems to have entertained any doubt." 4 § 30. Hertius seems to have been dissatisfied with these rules; and especially with the last; and he doubts exceedingly, whether this comity of nations, founded upon the notion of mutual convenience and utility, can furnish any sufficiently solid basis of a system. Ob reciprocam enim utilitatem, in disciplinam juris gentium abiise, ut civitas alterius civitatis leges apud se valere patiatur, adeoque exemplum hoc, ut evidentissimi argumenti ad probandum, quod jus gentium reverâ a jure naturæ distinctum sit, vult observari. Verum enim nos valde dubitamus, num res hæc ex jure gentium, sive mutuá earum indulgentiâ, possit definiri, presertim cum in una eádemque civitate collisio sæpissime fiat. Norunt etiam periti ex solis exemplis jus gentium adstruere, quam sit fallax; tum si solá populorum conniventiâ id niti dicamus, quæ juris 1 Huberus, Lib. 1, tit. 3, de Conflictu Legum, § 2, p. 538. 2 Ibid. 3 Ibid. Ibid. These axioms of Huberus are so often cited, that it may be well to give them in his own words. "(1) Leges cujusque imperii vim habent intra terminos ejusdem reipublicæ, omnesque ei subjectos obligant, nec ultra. (2) Pro subjectis imperio habendi sunt omnes, qui intra terminos ejusdem reperiuntur, sive in perpetuum, sive ad tempus ibi commorentur. (3) Rectores imperiorum id comitur agunt, ut jura cujusque populi intra terminos ejus exercita teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium præjudicetur." 2 Hub. Lib. 1, tit. 3; De Conflictu Legum, § 2. |