§ 26. Still, however, this was but a mere arrangement in the domestic polity of each particular nation; and even then, it must often have involved serious embarrassments, whenever questions. arose in regard to conflicting rights, and claims, and remedies, growing out of dealings, and acts, and contracts between individuers was not deeply seated in the character of the old Germans. It is probable, that among them every foreigner was, at first, a Wildfang, and belonged to the class of the Biesterfreien ; denied the advantages, arising from service in the national army, or from the obligations of fealty, and living as an alien, unprotected by any power, except the weak hand of the general government; who, while they excluded him from the rights of marriage, inherited his property, and exacted his composition, if slain. Further, the want of such an institution, as the personal laws, could never have been felt, in a country without trade, and where few foreigners resided. In these circumstances, its introduction was impossible. If only a single Goth lived in the Burgundian Empire, none of his countrymen could be found to administer Gothic law, and the Burgundians themselves were entirely ignorant of it. "The truth is, that the want of such an institution, and the possibility of introducing it, could occur only, after the nations were blended together in considerable masses. The internal condition of each kingdom would then produce what could never have been brought about by mere benevolence toward individual foreigners. According to this account of the origin of the system of personal laws, it prevailed in all the German States, settled in countries formerly subject to Rome. At first, the validity of two laws only was admitted: e. g. the law of the victorious race, and of the vanquished Romans. Individuals belonging to other German nations, did not at first enjoy the right of living under their own laws; but when our supposed kingdom had extended its conquests, and spread out its dominion over other German tribes, then the laws of the conquered German races were acknowledged, in the same manner as the Roman formerly had been. Thus, also, every foreign law, prevailing in the empire of the conqueror, was admitted and considered as valid among all the vanquished. This practice ought to have produced the following results. At first, in the northern parts of France, the Frank and Roman laws must have been exclusively received; and, under the Carlovingian dynasty, it would become necessary to admit likewise the laws of the West Goths, Burgundians, Alemans, Bavarians, and Saxons; because these, as nations, belonged to the empire. Italy, however, did not form a province under the Franks, and there could not consequently be the same reason for admitting the validity of Lombardic law within the Frank empire. In Italy, also, under the Lombardic kings, only Lombardic and Roman law could have prevailed to the exclusion of every other; but after its conquest by the Franks, all the multifarious foreign laws, existing in the territory of the conquerors, must have been introduced. Now, these anticipated results are supported by history; and this accordance is a strong practical confirmation of that account of the origin of personal laws already established by general reasoning.". The same passage will be found in Mr.. Guenoux's French translation of the same work, Vol. 1, ch. 3, p. 84 to 88, edit. 1830; Id. ch. 3, § 30, edit. 1839. als belonging to different races. But when the question assumed a more comprehensive character, and the point to be decided was, what rule should prevail, where there was a conflict of laws between different sovereignties, wholly independent of each other; and there were rights to be established of a private nature between some of the subjects of each sovereignty; there was no recognized principle or practice, which was promulgated by all, or submitted to by all. Such rights were probably left without any remedy, and became either the subject of private adjustment, or were silently disregarded. § 3. The truth is, that the Law of Nations, strictly so called, was in a great measure unknown to antiquity, and is the slow growth of modern times, under the combined influence of Christianity and commerce. It is well known, that when the Roman Empire was destroyed, the Christian world was divided into many independent sovereignties, acknowledging no common head, and connected by no uniform civil polity. The invasions of the barbarians of the North, the establishment of the feudal system in the Middle Ages, and the military spirit and enterprise cherished by the Crusades, struck down all regular commerce, and surrendered all private rights and contracts to mere despotic power. It was not until the revival of commerce on the shores of the Mediterranean, and the revival of letters and the study of the civil law by the discovery of the Pandects, had given an increased enterprise to maritime navigation, and a consequent importance to maritime contracts, that anything like a system of international justice began to be developed. It first assumed the modest form of commercial usages; it was next promulgated under the more imposing authority of royal ordinances; and it finally became by silent tadoption a generally connected system, founded in the natural convenience, and asserted by the general comity of the commercial nations of Europe. The system, thus introduced for the purposes of commerce, has gradually extended itself to other objects, as the intercourse of nations has become more free and frequent. New rules, resting on the basis of general convenience, and an enlarged sense of national duty, have, from time to time, been promulgated by jurists, and supported by courts of justice, by a course of juridical reasoning, which has commanded almost universal confidence, 1 See 1 Ward, Law of Nations, ch. 6, p. 171 to 200; Id. ch. 3, p. 120 to respect, and obedience, without the aid, either of municipal statutes, or of royal ordinances, or of international treaties. § 4. Indeed, in the present times, without some general rules of right and obligation, recognized by civilized nations to govern their intercourse with each other, the most serious mischiefs and most injurious conflicts would arise. Commerce is now so absolutely universal among all countries; the inhabitants of all have such a free intercourse with each other; contracts, sales, marriages, nuptial settlements, wills, and successions, are so common among persons, whose domicils are in different countries, having different and even opposite laws on the same subjects; that without some common principles adopted by all nations in this regard, there would be an utter confusion of all rights and remedies; and intolerable grievances would grow up to weaken all the domestic relations, as well as to destroy the sanctity of contracts and the security of property.1 § 5. A few simple cases will sufficiently illustrate the importance of some international principles in matters of mere private right and duty. Suppose a contract, valid by the laws of the country, where it is made, is sought to be enforced in another country, where such a contract is positively prohibited by its laws; or, vice versâ, suppose a contract invalid by the laws of the country, where it is made, but valid by that of the country, where it is sought to be enforced; it is plain, that unless some uniform rules are adopted to govern such cases, (which are not uncommon,) the grossest inequalities will arise in the administration of justice between the subjects of the different countries in regard to such contracts. Again; by the laws of some countries marriage cannot be contracted until the parties arrive at twenty-one years of age; in other countries not until they arrive at the age of twenty-five years. Suppose a marriage to be contracted between two persons in the same country, both of whom are over twenty-one years but less than twenty-five, and one of them is a subject of the latter country. Is such a marriage valid, or not? If valid in the country, where it is celebrated, is it valid also in the other country? Or, the question may be propounded in a still more general form; 1 Boullenois, in his Preface, (1 vol. p. 18,) says, “Il regnera donc toujours entre les nations une contrariété perpetuelle de loix; peut-être regnera-t-elle perpetuellement entre nous sur bien des objects. Delà la nécessité de s'instruire des règles et des principes qui peuvent nous conduire dans la décision des questions, que cette variété peut faire naitre." is a marriage, valid between the parties in the place where it is solemnized, equally valid in all other countries? Or, is it obligatory only as a local regulation, and to be treated everywhere else as a mere nullity? §6. Questions of this sort must be of frequent occurrence, not only in different countries, wholly independent of each other, but also in provinces of the same empire, which are governed by dif ferent laws, as was the case in France before the Revolution; and also in countries acknowledging a common sovereign, but yet organized as distinct communities, as is still the case in regard to the communities composing the British Empire, the Germanic Confederacy, the States of Holland, and the dominions of Austria and Russia. Innumerable suits must be litigated in the judicial forums of these countries and provinces and communities, in which the decision must depend upon the point, whether the nature of a contract should be determined by the law of the place, where it is litigated; or by the law of the domicil of one or of both of the parties; or by the law of the place, where the contract is made; whether the capacity to make a testament should be regulated by the law of the testator's domicil, or that of the location (situs) of his property; whether the form of his testament should be prescribed by the law of the place of his domicil, or by that of the location of his property, or by that of the place, where the testament is made; and in like manner, whether the law of the domicil, or what other law should govern in cases of succession to intestate estates.2 § 7. It is plain, that the laws of one country can have no intrinsic force, proprio vigore, except within the territorial limits and jurisdiction of that country. They can bind only its own subjects, and others, who are within its jurisdictional limits; and the latter only, while they remain therein. No other nation, or its subjects, are bound to yield the slightest obediènce to those laws. Whatever extra-territorial force they are to have, is the result, not of any original power to extend them abroad, but of that respect, which from motives of public policy other nations are disposed to yield to them, giving them effect, as the phrase is, sub mutuæ vicissitudinis obtentu, with a wise and liberal regard to common convenience and mutual benefits and necessities. Boullenois has laid down 2 1 See 1 Froland, Mémoires sur les Statuts, P. 1, ch. 1, § 5 to 10. * Livermore, Dissert. 3, 4; Merlin, Répert. Statut. "Of the same exposition as a part of his fundamental maxims. strict right," (says he,) "all the laws made by a sovereign have no force or authority, except within the limits of his domains. But the necessity of the public general welfare has introduced some exceptions in regard to civil commerce." De droit étroit, toutes les lois, que fait un souverain, n'ont force et autorité que dans l'étendue de sa domination; mais la nécessité du bien public et général des nations a admis quelques exceptions dans ce qui regarde le commerce civil.1 § 8. This is the natural principle flowing from the equality and independence of nations. For it is an essential attribute of every sovereignty, that it has no admitted superior, and that it gives the supreme law within its own dominions on all subjects appertaining to its sovereignty. What it yields, it is its own choice to yield; and it cannot be commanded by another to yield it as matter of right. And, accordingly, it is laid down by all publicists and jurists, as an incontestable rule of public law, that one may with impunity disregard the law pronounced by a magistrate beyond his own territory. Extra territorium jus dicenti impune non paretur, is the doctrine of the Digest; 2 and it is equally as true in relation to nations, as the Roman law held it to be in relation to magistrates. The other part of the rule is equally applicable; Idem est, et si supra jurisdictionem suam velit jus dicere; for he exceeds his proper jurisdiction, when he seeks to make it operate extra-territorially as a matter of power. Vattel has deduced a similar conclusion from the general independence and equality of nations, very properly holding, that relative strength or weakness cannot produce any difference in regard to public rights and duties; that whatever is lawful for one nation, is equally lawful for another; and whatever is unjustifiable in one, is equally so in another.1 And he affirms in the most positive manner, (what indeed cannot well be denied,) that sovereignty, united with domain, establishes the exclusive jurisdiction of a nation within its own territories, as to controversies, to crimes, and to rights arising therein.5 § 9. The jurisprudence, then, arising from the conflict of the 11 Boullenois, Prin. Gén. 6, p. 4. 2 * Dig. lib. 2, tit. 1, 1. 20; Pothier, Pand. lib. 2, tit. 1, n. 7. 8 Dig. lib. 2, tit. 1, l. 20; Pothier, Pand. lib. 2, tit. 1, n. 7. 4 Vattel, Prelim. § 15 to 20; Id. B. 2, ch. 3, § 35, 36; The Le Louis, 2 Dodson, R. 210. |