The Comity of

Law: on the other hand, if it allows its Courts to administer Foreign Law in disputes between foreigners, or otherwise, it adopts tacitly the Foreign Law as its own for the settlement of such disputes.

153. The Laws of a Nation can only have effect Nationa or obligation within the territory of another Nation gives effect by virtue of the express or tacit consent of the latter. to Foreign A Nation may prohibit the operation of all Foreign

sometimes

Law.

Laws, and refuse to recognise any rights growing out
of them within its territory. On the other hand, it
may prohibit some Foreign Laws, and give operation
to others, either absolutely, or sub modo. If the
Statute or Common Law of the Nation speaks clearly
in such matters, it must be obeyed by all within the
local limits of its authority. When both are silent,
European Courts of Justice under the Comity of
Nations presume the tacit adoption of the Laws of
a Foreign Nation by their own Government, in mat-
ters which regard Foreign Interests, unless they are
repugnant to its own policy, or prejudicial to its own
interests. No Nation can be justly required to give
up its own fundamental policy and institutions, in
favour of those of another Nation; much less can
any Nation be required to sacrifice its own interests
in favour of another Nation, or to enforce doctrines
which in a moral or political view are incompatible
with its own safety or happiness, or with its con-
scientious regard to justice and duty. It is therefore
essentially a question of Comity between Nations, to
what extent effect shall be given to Foreign Law,
and all questions of Comity depend upon a variety of
circumstances which cannot be reduced to any cer-
tain rule. Huberus has propounded upon
this ques-
on three maxims, which Mr. Justice Story, Mr.
8 De Conflictu Legum, L. I. Tit. III. § 2.

8

66

Wheaton, and M. Fælix equally approve, as being conformable to the practice of Nations. The first is, 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. The third is, that the rulers of every Empire from Comity admit that the Laws of every people in force within its own territorial limits ought to have the same force and effect everywhere, so far as they do not prejudice the power or rights of other Governments, or of their citizens. From this," Huberus adds, "it appears that this matter is to be decided not simply by the Civil Law of a Nation, but by the reciprocal convenience and the tacit consent of different Nations; for since the laws of one people cannot have any direct operation amongst another people, so nothing could be more prejudicial to the commerce and general intercourse of Nations, than that what is legally valid in one place should become without effect by reason of the diversity of the Law in another place. Certain Jurists have contended that the term Comity is not sufficiently expressive of the obligation of Nations to give effect to Foreign Laws, when they are not prejudicial to their own rights and interests, and have suggested that the doctrine rests on a deeper foundation; and that it is not so much a matter of Comity or Courtesy as a matter of paramount Moral Duty. Now if it be assumed," writes Mr. Justice Story, "that such a Moral Duty exists, it is clearly

66

9 Bynkershoek, De Foro Legatorum, c. 2. Martens, Précis, § 84. Klüber, Droit des Gens, § 54.

Personal,

one of imperfect obligation, like that of beneficence, humanity, or charity. Every Nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded; and certainly, there can be no pretence to say that any Foreign Nation has a right to require the full recognition and execution of its own Laws in other territories, if those Laws are deemed oppressive or injurious to the rights or interests of the inhabitants of the latter, or if their Moral character is questionable, or their provisions are impolitic or unjust 10. Even in other cases it is difficult to perceive a clear foundation in Morals, or in Natural Law, for declaring that any Nation has a right (all others being equal in Sovereignty) to insist that its own Positive Laws should be of superior obligation in a Foreign Realm to the Domestic Laws of the latter, which may be of an equally positive character. What intrinsic right has one Nation to declare that no Contract shall be binding, which is made by any of its subjects in a Foreign Country, unless they are twenty-five years of age; any more than another Nation, where the Contract is made, has a right to declare, that such Contract shall be binding, if made by any person of twenty-one years of age. One would suppose that if there be anything within the scope of National Sovereignty, it is the right of a Nation to fix what shall be the rule to govern Contracts made within its own territory ""

§ 154. A distinction has accordingly been made by Real, and the Civilians between Personal Statutes, Real Statutes, and Mixed Statutes. Personal Statutes, ac

Mixed,
Statutes.

10 Story's Conflict of Laws, Martin's Louisiana Repts. 569§33. 598. Saul v. his Creditors, 17

cording to this classification, are those portions of the Civil Law of a Nation which have persons principally for their object, and treat only of property as an accessory; such are those which regard birth, legitimacy, freedom, the right of instituting suits, majority as to age, incapacity to contract or to make a will or to sue in proper person, &c. Real Statutes are those which have property principally for their object, and which do not speak of persons except in subordination to property; such as those Laws which concern the disposition which may be made of property either by deed or by will. Mixed Statutes are those which concern at once persons and property. This threefold classification has been considered by Merlin 12 to be unnecessary, as every Statute ought to receive its denomination according to its principal object; and according as that object is real or personal, so ought the quality of the Statute to be determined. But the distribution of Statutes into three classes is usually adopted, as stated by Rodenburg 13; because there is a corresponding difference of fact in the scope of Statutes, for a Statute either disposes respecting persons in the abstract, without any regard to things; as, for instance, at what age a person shall be a free agent (Sui juris), and cease to be subject to the parental authority, (patria potestas,) or it disposes of things without regard to persons; as, for instance, whether property of a certain quality can pass by will, or must be transmitted by deed, and in either case, with what formalities; or it enables or forbids certain persons to do certain things, as it forbids a father to alienate

12 Merlin, Répertoire du Droit. Art. Statut.

13 De Statutorum Diversitate, c. 2. p. 4.

Growth of

Private

his patrimonial estates, and permits him to dispose of property acquired during his lifetime14.

§155. With regard to Personal Statutes, they are held to be of general obligation and force everywhere. tional Ju- Real Statutes, on the other hand, are held to have no

Interna

rispru

dence.

extra-territorial force or obligation. With regard to Mixed Statutes, the extent and degree of their operation is one of the most intricate questions of International Jurisprudence. Thus much however may be said, that their operation is not a question of Right, but of Comity; and that the Comity of Nations extends thus far only. If, for instance, a Mixed Statute involves a question of Contract, and it is sought to enforce the Contract within the territory of an Independent Power other than that Power within whose territory the Contract has been made, it is necessary in the first place, that the subject matter of the Contract should be such as does not contravene the Law or policy of the Power, before whose tribunals it is sought to be enforced. This fact being established as a preliminary, the tribunals of the latter Power will take into consideration the lex loci contractûs, to determine the constat of the obligation, but they do not administer the Law of the place, where the Contract was entered into, in awarding the remedy. They award only that remedy which the Lex Fori expressly ordains, or a remedy which is in accordance with the analogy of the Lex Fori.

The administration of Foreign Law by Courts of Justice under the Comity of Nations has given rise to an extensive department of Juridical Science,

14 The distribution of Statutes into three classes is adopted by Boullenois, Traité des Statuts

Réels et Personels, L. I. c. 2. obs. 2. and by Pothier, Coutumes d'Orléans, c. I. § 1. Art. 6, 7, 8.