Selections from







a grateful memorial of the
Centenary of the publication of the first edition of Story's Treatise on the Conflict of Laws




PREFACE.................. vii

GENERAL BIBLIOGRAPHY.............. xvii

CHAPTER 1. INTRODUCTION............. 1

Topic 1. Subject Matter and Meaning......... 1

§ 1.1. Definition of the Subject......... 1

1.2. Other Definitions........... 2

1.3. Practical Necessity for this Branch of Law .... 4

1.4. Preliminary Topics for Investigation...... 5

1.5. The Nature of Law as a Necessary Preliminary Study . 5

1.6. The Limits of Jurisdiction as a Necessary Preliminary Study............... 6

1.7. Rights, Acts, and Remedies as Necessary Subjects for Preliminary Study........... 6

1.8. Nationality and Domicil......... 7

1.9. Whether Criminal Law Is Included in the Subject . . 7

1.10. Public International Law How Far Included ... 8

1.11. Comparative Law How Far Included...... 9

1.12. Sources of Private International Law...... 9

1.13. The Use to Be Made of Authorities of Various Kinds . 10

1.14. The Method of Treatment Outlined...... 12

1.15. Names Proposed for the Subject....... 12

1.16. Criticism of Names Indicating Conflict..... 13

1.17. Criticism of Names Suggesting International Character 14

1.18. Difficulty of Finding Appropriate Name..... 14

1.19. Reasons for Adopting the Name "Conflict of Laws" . 15

2.1. Legal Units............. 16

2.2. What Determines the State........ 16

2.3. Legal Units in the United States ....... 17

2.4. Municipal Ordinances.......... 18

2.5. Use of the Word State to Designate a Legal Unit . . 19

3.1. Necessity for Determining the Nature of Law ... 20

3.2. Body of Principles, Standards, and Rules .... 21

3.3. Application by the Courts of a State...... 21

3.4. Definition of Law........... 22

3.5. Is There a Federal Common Law?...... 25

4.1. Legal Systems............ 26

§ 4.2. Sources of the Common Law........ 28

4.3. The Principal Modern Legal Systems ..... 29

4.4. Other Legal Systems.......... 32

4.5. Acceptance of a Legal System........ 34

4.6. The Part Played by Judicial Decisions..... 36

4.7. The Causes of Change in the Unwritten Law ... 39

4.8. The Part Played by Equity........ 40

4.9. Codification............. 42

4.10. Restatement of the Law......... 43

4.11. Law and the Social Order......... 43

4.12. The Characteristics of Law........ 45

4.13. Certainty and Flexibility of Law....... 48

5.1. No International Sanction......... 51

5.2. Personal and Territorial Law........ 52

5.3. Conflict of Laws Part of the Common Law .... 52

5.4. Foreign Law as a Fact in a Case....... 53

Topic 2. Rules for the Application of Conflict of Laws .... 53

§ 6.1. Nature of Comity........... 53

7.1. Resolutions of the Rules of Conflict of Laws ... 55

7.2. Qualifications............ 55

7.3. The Doctrine of the Renvoi........ 55

8.1. Foreign Title or Divorce ........ 57

8.2. Succession to Chattels.......... 57

8A.1. Meaning of Interest........... 58

8A.2. Social Interests............ 59

8A.3. Private Interests of Person......... 60

8A.4. Interests of Property.......... 60

8A.5. Interests of Will and Act......... 61

8A.6. Rights.............. 62

8A.7. The Legal Protection of Interests ....... 63

8A.8. The Nature of Rights.......... 64

8A.9. The Analysis of Rights.......... 66

Topic I. Primary Rights............. 67

Sub-Topic A. Static Rights........... 67

§ 8A.10. The Nature of Static Rights........ 67

8A.11. Distinction between a Static Right and the Rights Which Protect It.............. 68

Part 1. Personal Status........... 71

§ 8A.12. The Nature of Personal Status........ 71

8A.13. Personality............. 71

8A.14. Other Examples of Personal Status...... 73

8A.15. Relative Status............ 73

Part 2. Rights of Property.......... 75

§ 8A.16. The Nature of Property......... 75

8A.17. The Sort of Interest Protected........ 75

§8A.18. The Sort of Things Which May Be Subject of Interests 77

8A.19. Transfer and Extinguishment of Rights of Property . 78

Sub-Topic B. Dynamic Rights.......... 79

§ 8A.20. The Nature of Dynamic Rights....... 79

Part 1. Absolute Rights........... 80

§ 8A.21. Interest-Protecting Rights......... 80

8A.22. Interest-Enjoying Right......... 81

Part 2. Relative Rights........... 82

§ 8A.23. Contracts and Debts.......... 82

8A.24. Quasi-Contracts............ 82

Topic II. Secondary Rights............ 83

§ 8A.25. The Nature of Secondary Rights....... 83

8A.26. Rights of Redress or Restoration....... 83

Topic III. Remedial Rights............ 84

§ 8A.27. The Nature of Remedial Rights....... 84

8A.28. Right to Sue and to Be Satisfied....... 85

CHAPTER 2. DOMICIL.............. 87

Topic 1. Meaning of Domicil........... 89

§ 9.1. Definition of Domicil.......... 89

9.2. Need of Orientation in the Law....... 90

9.3. Importance of Domicil.......... 91

9.4. Domicil a General Conception in the Law .... 92

9.5. Meaning of Domicil........... 94

9.6. Domicil in a House or in a State....... 96

9.7. Expressions "National Domicil" and "Municipal Domicil".............. 98

9.8. Effect on Domicil of Change of Sovereignty .... 99

9.9. Domicil and Nationality......... 99

9.10. Other Uses of the Term Domicil....... 100

9.11. Domicil in Places Ceded to the Federal Government . 101

9.12. Domicil in Eastern Countries........ 103

9.13. Statutory Regulation of Domicil....... 105

10.1. Domicil a Question of Law of Forum...... 105

10.2. Capacity to Acquire a Domicil....... 108

10.3. Residence and Domicil . '...... 109

10.4. Residence for Purposes of Taxation...... 111

10.5. Residence as a Qualification for Voting or Holding Office 112

10.6. Residence to Gain a Settlement under the Poor-Laws . 113

10.7. Residence as a Basis of Jurisdiction...... 114

10.8. Residence as Foundation of Jurisdiction for Divorce . 116

10.9. Residence for Statutes of Limitations...... 117

10.10. Residence for Attachment......... 118

10.11. Citizenship............. 121

10.12. Homestead............. 121

§ 10.13. Attendance at Public School........ 122

10.14. Other Uses of the Word Residence...... 122

Topic 2. General Principles of Domicil......... 122

§ 11.1. Everyone Must Have a Domicil....... 122

11.2. No One Can Have More Than One Domicil .... 123

12.1. Home and Domicil........... 124

13.1. Elements of the Idea of Home........ 124

13.2. Physical Characteristics of a Home...... 125

13.3. Occupation of the Home......... 126

13.4. The Relation between a Person and His Home . . . 126

Topic 3. Acquisition and Change of Domicil....... 128

§ 14.1. Domicil of Origin........... 128

15.1. Determination of Domicil of Choice a Determination of Fact............... 131

15.2. Change of Domicil by Choice of the Party .... 132

15.3. Examples of Acquiring or Not Acquiring Domicil . . 134

16.1. Act Necessary for Acquiring a New Domicil.... 136

16.2. Domicil without a Fixed Dwelling-Place..... 137

16.3. Acquisition of Domicil by Act of Another .... 139

16.4. When Occupation of Home Begins...... 140

17.1. Domicil of a Sailor or Other Rover...... 140

18.1. Intent Necessary for Acquiring a New Domicil ... 142

18.2. Intent to Abandon Old Domicil Involved .... 145

19.1. Nature of the Intention Required....... 145

19.2. Intention to Acquire or Keep a Domicil Not Enough . 149

20.1. Present Intent to Make a Home....... 151

20.2. Conditional Intent.......... . 153

21.1. Legal or Physical Compulsion........ 154

21.2. Domicil of a Soldier or Sailor........ 154

21.3. Domicil of a Prisoner.......... 158

21.4. Domicil of a Pauper.......... 159

21.5. Domicil in a Charitable Institution...... 160

22.1. Motive of Change of Residence....... 161

22.2. Presence for Temporary Cause........ 163

22.3. Presence in a Foreign Country........ 165

22.4. Presence for Business.......... 167

22.5. Presence to Work in Various Places...... 169

22.6. Presence to Hold Office......... 171

22.7. Presence for Health or Travel........ 172

22.8. Presence for Educational Purposes...... 175

22.9. Presence to Escape Legal Process, or to Gain Access to a Court............... 180

23.1. Continuance of Domicil......... 181

23.2. Union of Fact and Intention Not Necessary to Retain Domicil.............. 182

§ 23.3. Doctrine of Revival of Domicil of Origin..... 183

24.1. More than One Residence......... 186

24.2. Solution of Doubt as between Two Residences . . . 187

24.3. Two Homes: Domicil in the Earlier Acquired . . . 189

24.4. Predominant Home........... 191

25.1. Home on the Line between Political Divisions of Territory ............... 192

Topic 4. Domicil by Operation of Law......... 194

§ 26.1. Domicil by Operation of Law........ 194

27.1. Domicil of a Married Woman........ 195

27.2. Wife's Domicil with the Husband....... 197

28.1. Separate Domicil for Divorce........ 199

28.2. Separate Domicil for the Wife........ 201

28.3. Separate Domicil for General Purposes..... 203

28.4. Law Applicable to Desertion........ 207

28.5. Separate Domicil Where the Wife Is at Fault ... 208

29.1. Domicil on Termination of the Marriage by Death or Divorce.............. 208

29.2. Domicil after Judicial Separation....... 209

30.1. Domicil of a Minor Child......... 210

30.2. Residence of a Child.......... 212

31.1. Emancipation............ 212

32.1. Divorce or Separation of Parents....... 215

32.2. Joint Guardianship of Parents........ 216

34.1. Domicil of Illegitimate Child........ 216

35.1. Domicil of Adopted Child......... 217

35.2. Domicil of an Apprenticed Child....... 217

36.1. Domicil on Death of Father........ 217

37.1. Domicil of Child under Guardianship...... 218

38.1. Guardianship of the Mother........ 220

38.2. Domicil after Remarriage of Mother...... 221

39.1. Natural Guardian........... 222

40.1. Domicil of Insane Person......... 223

40.2. Domicil of Insane Person in an Asylum..... 226

40.3. Domicil of Person Non Compos Mentis under Guardianship ............... 226

40.4. Domicil of Person Non Compos Mentis While under Age 227

41.1. Domicil of a Corporation......... 228

41.2. In What State Is the Corporation Chartered ... 230

41.3. Residence of a Corporation........ 231

41.4. Presence for Purposes of Jurisdiction...... 232

41.5. Habitancy under the Judiciary Act...... 237

41.6. Residence for Purposes of Process and Suit .... 238

41.7. Location of a Corporation within the State .... 240

41.8. Location of a Corporation Chartered by Congress . . 241

Topic 5. Evidence of Domicil........... 243

§ 41A. Evidence of Domicil........... 243

41A.1. Presumption and Burden of Proof....... 243

Sub-Topic A. Declarations........... 246

§ 41B. Declarations of Intention........ 246

41B.1. Admissibility of Evidence of Declaration of Intention 246

41B.2. Declarations Part of the Res Gestæ...... 248

41B.3. Declarations against Interest....... 249

41B.4. Declarations of a Deceased Person...... 249

41B.5. Testimony as to Intention....... . 249

41B.6. Sworn Statement of Intention....... 250

41B.7. Registering............ 251

41B.8. Entry in a Directory.......... 251

41B.9. Recitals in Deeds and Wills........ 251

41B.10. Recitals in Other Legal Documents..... 2.53

Sub-Topic B. Acts.............. 253

§41C. Conduct............. 253

41C.1. Residence............. 254

41C.2. Purchase or Retention of a Dwelling-House .. . . 256

41C.3. The Family Dwelling-Place........ 258

41C.4. Carrying on Business.......... 260

41C.5. Bank and Post-Office.......... 261

41C.6. Assessment and Payment of Taxes..... 261

41C.7. Voting.............. 263

41C.8. Office-Holding............ 266

41C.9. Church Connection.......... 266

41C.10. Membership in Clubs and Societies..... 266

41C.11. Place of Death and Burial........ 266

41C.12. General Reputation.......... 267

41D. Bibliography............ 267


Topic 1. Definition and Character of Jurisdiction...... 274

§42.1. Jurisdiction: How Determined........ 274

42.2. The Station between Jurisdiction and Power. . . . 275

43.1. Effect of Constitution on Power of the State. ... 277

43.2. The Commerce Clause.......... 277

43.3. The Full Faith and Credit Clause....... 278

43.4. The Fourteenth Amendment........ 278

44.1. General Extent of Jurisdiction........ 278

44.2. Limitation on Jurisdiction of a State...... 279

44.3. Concurrent Jurisdiction.......... 279

44.4. Conflicting Exercise of Jurisdiction...... 281

44.5. Jurisdiction Limited to River Traffic...... 282

44.6. Jurisdiction over Border Seas........ 283

§ 44.7. Jurisdiction over Harbors......... 285

44.8. Jurisdiction over the Air......... 286

45.1. Application of the "Law of the Flag" in the United States............... 287

45.2. Jurisdiction over Vessels on the High Seas .... 287

45.3. Vessels Navigating Territorial Waters..... 288

45.4. Vessel in a Foreign Harbor......... 288

Topic 2. The Subjects of Jurisdiction......... 290

Title A. General Principles............ 290

§ 46.1. Exercise of Jurisdiction by Creating Rights .... 290

46.2. Persons and Things in Which Rights Are Created . . 290

Title B. Jurisdiction over Persons......... 291

§ 47.1. General Principles of Jurisdiction over Person . . . 291

47.2. Jurisdiction over Absent Nationals...... 291

Title C. Jurisdiction over Things.......... 292

§ 49.1. Jurisdiction over Land and Things Annexed to Land . 292

50.1. Jurisdiction over a Chattel........ 292

50.2. Jurisdiction over the Title to Property..... 292

50.3. Chattel Removed without Owner's Consent . . . 294

50.4. Jurisdictional Aspect of the Problem...... 298

50.5. Merger of Chattel in Document....... 300

50.6. Jurisdiction over Chattel in Another State .... 300

51.1. Jurisdiction over Intangibles........ 301

52.1. Documents............. 302

53.1. Nature of Share in a Corporation and Certificate . . 303

53.2. Localization of Intangible Things...... 304

53.3. Business Situs............ 304

Title D. Jurisdiction over Status.......... 304

§ 54.1. Domestic and Other Status........ 304

Topic 3. Instrumentalities for Exercising Jurisdiction..... 305

Title A. Executive Jurisdiction.......... 305

§ 56.1. Nature and Extent of Executive Power..... 305

56.2. Acts Not Requiring Official Authority..... 306

58.1. Extra-Territorial Exercise of Vested Rights .... 307

Title B. Legislative Jurisdiction.......... 308

§ 59.1. The Meaning of Legislative Jurisdiction .... 308

59.2. The Extent of Law........... 308

60.1. Requisites of Legislative Action....... 309

60.2. Non-Legislative Action by the Legislature .... 310

60.3. The Effect Abroad of Non-Legislative Acts of Legislature .............. 311

61.1. No Jurisdiction within the Boundaries of Another State 311

61.2. The Clapper Case........... 312

63.1. Jurisdiction over Citizens Abroad...... 314

§ 65.1. Acts the Consequences of Which Extend over a State Line............... 315

65.2. Action through a Chosen Instrument..... 315

65.3. Action through the Course of Events..... 316

65.4. Remote Consequence of Defendant's Act .... 316

66.1. Action by the Communication of Intelligence . . . 317

67.1. Action through a Human Agent....... 318

70.1. Consequences of Violation of a Legal Duty .... 321


Topic 1. Jurisdiction over Persons.......... 326

Title A. Jurisdiction over Persons in General...... 326

§ 74.1. Reason for Requiring Jurisdiction...... 326

74.2. Effect within State of Judgment without Jurisdiction . 326

74.3. Effect of Lack of Jurisdiction........ 326

74.4. Effect of Notice........... . 329

74.5. Jurisdiction Claimed Because of Property within the State............... 330

74.6. Unauthorized Appearance......... 331

74.7. False Return of Service......... 332

75.1. Methods of Service upon Persons Domiciled in the State 333

76.1. Jurisdiction once Attaching Continues..... 336

Title B. Jurisdiction over Individuals........ 338

§ 77.1. Bases of Jurisdiction.......... 338

78.1. Jurisdiction of the Courts over Persons within the Territory ............... 339

78.2. Exemptions Allowed by International Law .... 340

78.3. Effect of the Use of Force......... 341

78.4. Jurisdiction Obtained by Fraud ....... 341

78.5. Exemption of Non-Resident Witnesses and Parties . 342

79.1. Jurisdiction of the Courts Based on Domicil . . . 343

80.1. Jurisdiction of a State Based on Allegiance .... 344

80.2. Jurisdiction of the Courts Based on Allegiance . . . 344

81.1. Jurisdiction Based upon Consent....... 346

81.2. Acceptance or Waiver of Service....... 346

82.1. General Appearance.......... 347

82.2. Special Appearance........... 349

82.3. Appearance for Several Purposes....... 350

82.4. General Appearance after Judgment...... 351

82.5. General Appearance after Objection to Jurisdiction Overruled............. 351

82.6. Appearance in a Proceeding In Rem or Quasi In Rem 352

82.7. Special Appearance Conferring Jurisdiction by Statute 353

82.8. Submission in Advance......... 355

§ 83.1. Set-Off, Counterclaim, or Cross-Action..... 357

84.1. Suit Arising out of Acts in the State...... 358

84.2. Acts Endangering Public Safety....... 359

84.3. Suit Arising out of Business Done within the State . 361

86.1. Jurisdiction over Partnerships....... 364

86.2. Jurisdiction over Unincorporated Associations . . . 366

86.3. Jurisdiction over Joint Debtors....... 367

Title C. Jurisdiction over Corporations........ 368

§ 87.1. Jurisdiction over Domestic Corporations .... 368

87.2. Service of Process upon Domestic Corporations . . 368

88.1. Recognition of Foreign Corporations..... 369

88.2. Jurisdiction over Foreign Corporations..... 370

88.3. Service on Officer or Agent in the State..... 371

89.1. Jurisdiction in the Absence of Express Consent . . 376

89.2. Corporations Engaged in Interstate Commerce . . 377

89.3. Necessity for Notice.......... 379

89.4. Liability Incurred Outside State....... 379

89.5. Theories of Basis of Jurisdiction....... 382

89.6. Theory of Presence........... 383

89.7. Theory of Implied Consent........ 385

89.8. Theory of Submission ....... 388

90.1. Jurisdiction Based upon Express Consent .... 391

90.2. Appearance in the Suit......... 391

90.3. Acceptance of Service of Process....... 392

90.4. Foreign Corporation as Plaintiff....... 392

90.5. Attachment or Garnishment of Property .... 393

91.1. Appointment of an Agent to Accept Service . . . 394

91.2. Extent of Agent's Authority to Accept Service . . . 395

91.3. Service on the Designated Agent Only..... 395

91.4. Statute Must Be Exactly Followed...... 396

91.5. What Agents May Be Served........ 397

91.6. Officers of the Corporation......... 400

91.7. Managing Agent........... 401

91.8. Local Agent............. 403

91.9. Agent of Railroad or Steamboat Company .... 403

91.10. Agent of Insurance Company........ 405

91.11. Agent of Newspaper Company....... 406

91.12. Agent under the English and Colonial Practice . . . 406

93.1. Effect of Withdrawal from the State...... 407

Title D. Jurisdiction over Persons to Affect Foreign Acts of Things 411

§ 94.1. The Power and the Right to Order or Forbid an Act . 411

94.2. No Court, Even though It Have Jurisdiction to Do So, Will Issue a Decree to Be Carried out in a Foreign State 412

95.1. Jurisdiction to Order Application to Foreign Court . 414

96.1. Injunction against Acting Abroad...... 415

§ 97.1. Jurisdiction to Order a Conveyance of Foreign Land . 417

97.2. Specific Performance of Contract to Convey Foreign Land............... 419

97.3. Performance of Trust in Foreign Land..... 419

97.4. Jurisdiction in Case of Fraud........ 420

97.5. Title Conveyed by Deed of Foreign Land under Order of Court.............. 421

97.6. Refusal of Court to Interfere with Foreign Land . . 422

97.7. Decree Cannot Affect Foreign Land...... 423

97.8. A Decree Cannot Order Partition of Foreign Land . 424

97.9. Power over Foreign Land Requires Jurisdiction over the Owner.............. 425

97.10. Conveyance May Be Compelled Only if There Is Wrongdoing or Obligation........... 426

97.11. Foreclosure of Mortgage on Foreign Land .... 428

97.12. Jurisdiction over Accounts........ 430

97.13. Jurisdiction in Case of Personal Property .... 430

97.14. Jurisdiction to Grant an Injunction Which Can Only Be Obeyed by Doing a Foreign Act....... 431

Topic 2. Jurisdiction over Things.......... 435

Title A. Jurisdiction over Things in General...... 435

§ 98.1. Jurisdiction over Things......... 435

98.2. The Jurisdiction of Equity over Things .... 435

99.1. Jurisdiction over Things Outside the State . . . 436

100.0. Personal or Substituted Service....... 437

101.1. Jurisdiction over Land......... 437

101.2. Jurisdiction over Mortgages and Liens..... 438

101.3. Suit to Quiet Title or Remove a Cloud on the Title . 439

101.4. Jurisdiction to Enforce Trusts....... 440

101.5. Jurisdiction to Cancel or Reform a Deed .... 440

101.6. Jurisdiction to Compel Specific Performance of Contracts Concerning Land......... 441

102.1. Jurisdiction in Rem over Tangible Personalty . . . 441

102.2. Jurisdiction over a Trust, and to Declare a Trust . 443

102.3. Jurisdiction in Partnership Affairs...... 444

102.4. Jurisdiction in Rem over Property of a Corporation . 444 103.1. Jurisdiction over Commercial Instruments .... 445

104.1. Jurisdiction in Rem over Shares in a Corporation . 446

104.2. Jurisdiction over Intangible Property..... 448

105.1. Continuance of Jurisdiction........ 449

Title B. Jurisdiction to Apply Things to the Payment of Claims 449 §

106.1. Exercise of Jurisdiction over a Thing to Compel the

Payment of a Debt.......... 449

106.2. Necessity of Claim against the Thing . . . . . 450

107.1. Attachment of Tangible Property...... 451

§ 107.2. Attachment of an Interest in Property..... 451

107.3. Attachment of Shares in a Corporation .... 452

107.4. Attachment of a Document........ 453

107.5. Foreign Attachment by the Custom of London . . 453

107.6. Garnishment of Tangible Property...... 454

108.1. Garnishment of a Debt; Theoretical Considerations . 455

108.2. Garnishment of a Debt; History of the Doctrine . . 458

108.3. Present Doctrine of the Courts....... 460

108.4. Present Doctrine: Practical Considerations . . . 464

108.5. French Saisie-Arrêt.......... 466

Topic 3. Jurisdiction over Status.......... 467

Title A. Jurisdiction over Status in General....... 467

§ 109.1. Notice and Opportunity to Be Heard..... 467

Title B. Jurisdiction for Divorce.......... 467

§ 110.1. Nature of the Problem......... 467

110.2. Legislative Divorces.......... 470

110.3. Other Non-Judicial Divorces....... 471

110.4. General Rule............ 472

110.5. Statutory Limitations on Divorce...... 473

110.6. Fraud.............. 476

111.1. Invalidity of Divorces without Domicil of Parties . 476

111.2. Impeachment of Judgment........ 478

111.3. Estoppel............. 479

111.4. The Decision in Gould v. Gould....... 480

113.1. History of the Doctrine of Divorce at Separate Domicil 482

113.2. General Rule in Nineteenth Century..... 484

113.3. Erroneous Localization of the Marriage Res . . . 485

113.4. Exceptional View: New York....... 486

113.5. New Jersey............ 490

113.6. Pennsylvania............ 491

113.7. Other States Holding Exceptional Doctrines . . . 493

113.8. England............. 494

113.9. Doctrine of the Supreme Court of the United States . 495

113.10. Haddock v. Haddock.......... 497

113.11. The Present Rule in Principle....... 500

113.12. Later Law of the States......... 505

113.13. Cross Bill............. 507

Title C. Jurisdiction to Entertain other Marital Suits .... 507

§ 114.1. Judicial Separation.......... 507

114.2. Restitution of Conjugal Rights....... 509

115.1. Nullity of Marriage.......... 509

115.2. Nullity from the Date of the Decree..... 512

115.3. Bibliography............ 513

CHAPTER 4A. TAXATION.............. 516

Topic A. Taxation in General........... 517

§ 118A.1. The Problem of Taxation........ 517

118A.2. Jurisdiction of a State to Tax....... 518

118A.3. Subjects of Taxation......... 519

118A.4. Taxation by Two States........ 520

118A.5. Constitutional Provisions........ 521

Topic B. Tax on Persons............. 525

§ 118B.1. Jurisdiction to Tax a Person....... 525

118B.2. Jurisdiction to Tax a Citizen ....... 527

118B.3. Poll Tax............. 527

118B.4. Tax on a Person Measured by the Value of His Property .............. 529

118B.5. Personal Obligation of Non-Resident to Pay Tax . 532

Topic C. Tax on Things............. 533

§118C.l. Tax on Movables........... 533

118C.2. Integration............. 535

118C.3. Reasons for the View Adopted....... 535

118C.4. The Situs of Land........... 536

118C.5. Land outside the State......... 538

118C.6. Mortgage Interest in Land........ 539

118C.7. Things Annexed to Land......... 542

118C.8. Jurisdiction over Chattels......... 545

118C.9. Goods Temporarily within the State..... 547

118C.10. Property Temporarily outside the State .... 549

118C.11. Property in Transit.......... 551

118C.12. Live Stock............. 552

118C.13. Vessels.............. 552

118C.14. Rolling Stock............ 554

118C.15. Machinery............. 555

118C.16. Logs and Other Products of the Soil...... 556

118C.17. Exports and Imports.......... 559

118C.18. Interruption of the Transit........ 561

118C.19. Personalty in the Hands of an Executor or Administrator 564

118C.20. Property in the Hands of a Guardian..... 566

118C.21. Property in Court........... 567

118C.22. Situs of Intangibles.......... 567

118C.23. Situs of a Debt............ 568

118C.24. Debt Evidenced by a Document....... 572

118C.25. Tax on Bonds............ 573

118C.26. Tax on Notes............ 574

118C.27. Tax on a Share of Capital Stock....... 576

118C.28. Tax on Share at Domicil of Owner...... 578

118C.29. Tax on Certificate of Stock as a Specialty .... 580

118C.30. Situs of a Judgment.......... 581

§ 118C.31. Situs of Franchises........... 582

118C.32. Situs of Good-Will of a Business....... 582

118C.33. Situs of a Bank Deposit......... 583

118C.34. Business Capital........... 585

118C.35. The "Corporate Excess"......... 586

118C.36. Partnership Property.......... 587

118C.37. Business Situs of Assets......... 588

118C.38. Seat on Exchange........... 593

118C.39. Business Property Located in Several States . . . 594

118C.40. Seat of a Trust............ 598

118C.41. Place of Taxation of Trust of Movables .... 600

Topic D. Inheritance Tax............ 602

§ 118D.1. Nature of Inheritance Tax........ 602

118D.2. Succession to Land.......... 602

118D.3. Succession to Chattels.......... 604

118D.4. Succession to Intangibles......... 606

118D.5. Taxation of Succession by the State of Domicil . . 607

118D.6. Succession to Land or Chattels Equitably Converted 609

118D.7. Succession to Interest in a Trust Fund..... 612

118D.8. Succession Taxed by Several States...... 613

118D.9. Special Provisions in New York and Great Britain . 615

118D.10. States without Jurisdiction to Tax...... 616

118D.11. Succession to Stock in a Corporation..... 617

118D.12. Succession to Share in Estate of a Decedent . . . 619

118D.13. Succession to Property Having a Business Situs . . 619

Topic E. Gift Tax............... 620

§ 118E.1. Tax on Gifts Inter Vivos......... 620

118E.2. Tax on Appointment under a Power..... 620

Topic F. Excise Taxes............. 621

§ 118F.1. Tax on Acts............ 621

118F.2. Jurisdiction to Impose an Excise Tax..... 623

118F.3. Excise Tax and Property Tax....... 624

118F.4. Constitution as Limitation on State Power .... 626

118F.5. Excise Taxation and Due Process of Law .... 627

118F.6. Present Doctrine — Foreign Corporations .... 629

118F.7. Present Doctrine — Domestic Corporations .... 634

Topic G. Income Tax.............. 637

§118G.l. Nature of Income Tax......... 637

118G.2. Jurisdiction to Impose Income Tax...... 637

118G.3. Tax on Income Where Earned....... 638

118G.4. Tax on Profits of Business........ 639

118G.5. Taxation on the Domicil ......... 640

118G.6. Tax on Income from Trust........ 641

118G.7. Allocation of Income.......... 642

118G.8. Bibliography............ 643

Choice of Law

CHAPTER 5. STATUS ............... 647

§ 119.1. Meaning of the Word Status........ 649

119.2. Kinds of Status............ 649

119.3. What Personal Qualities and Relationships Constitute Status.............. 650

120.1. Effect of Unknown Foreign Status...... 651

Topic A. Absolute Status............ 652

§120.2. Personality............. 652

120.3. Name.............. 654

120.4. Rank, Title, and Office......... 656

120.5. Absence.............. 656

120.6. Civil Death............. 657

120.7. Infamy.............. 657

120.8. Prodigality............. 658

120.9. Insanity.............. 658

120.10. Slavery.............. 658

120.11. Capacity.............. 660

120.12. Majority.............. 661

Topic B. Relative Status............. 663

§ 120.13. Meaning of Relative Status........ 663

120.14. Non-Domestic Status: Jailer and Prisoner .... 663

120.15. Domestic Status........... 664

Title A. Marriage.............. 665

§ 121.1. Meaning of Marriage.......... 665

121.2. General Rule............ 666

121.3. License.............. 671

121.4. Form of Ceremony........... 671

121.5. Ceremony by Whom Performed....... 672

121.6. Capacity.............. 672

121.7. Invalidity of Contract.......... 674

122.1. Mandatory Requirement......... 674

122.2. Marriage in Place Where No Law...... 674

123.1. "Common-Law" Marriage........ 675

124.1. Marriage by Proxy........... 676

125.1. Marriage by Correspondence........ 676

126.1. Consular Marriage........... 676

126.2. Marriage in Embassy.......... 676

127.1. Marriage on Board a Merchant Vessel..... 676

127.2. Marriage on Board a Warship....... 677

128.1. Tribal Marriage............ 677

§ 129.1. Evasion of Requirement of Domicil...... 678

129.2. Consent of Parent or Guardian....... 678

129.3. Nonage.............. 679

129.4. Eugenic Provisions........... 680

129.5. Miscellaneous Provisions......... 681

129.6. Evasion Statutes........... 681

130.1. Prohibition against Remarriage....... 683

132.1. Polygamous Marriages.......... 687

132.2. Incestuous Marriages.......... 687

132.3. Miscegenation............ 691

132.4. Marriage with Paramour......... 692

132.5. Parties Domiciled in Different States..... 692

132.6. Recognition of Power of State of Domicil .... 695

133.1. Refusal to Recognize Valid Foreign Marriage . . . 698

133.2. The English Doctrine of "Christian Marriage" . . 699

133.3. Marriage in a Tribe.......... 701

134.1. Refusal to Extend a Particular Incident to a Foreign

Marriage.............. 701

135.1. Divorce Governed by Law of Forum..... 702

135.2. Recognition of Divorce......... 702

136.1. Law Governing Nullity.......... 703

Title B. Legitimacy............. 704

§ 137.1. Nature of Legitimacy.......... 704

138.1. Legitimacy at Birth........... 704

139.1. Legitimation from Birth......... 706

139.2. Legitimation by Subsequent Marriage..... 707

139.3. Legitimation by Recognition........ 709

140.1. Legitimation after Birth......... 711

140.2. Recognized Natural Child......... 712

141.1. Effect of Legitimacy.......... 712

Title C. Adoption.............. 713

§ 142.1. Nature of Adoption.......... 713

142.2. Jurisdiction to Adopt.......... 713

143.1. Recognition of Adoption......... 716

Title D. Custodianship............ 716

Sub-Title A. Parents ............ 716

§144.1. Meaning of Term Custody........ 716

144.2. Right of Parent to Custody........ 717

144.3. Jurisdiction to Grant Custody....... 717

147.1. Recognition of Custody in Another State .... 719

148.1. Taking Child into Another State...... 720

Sub-Title B. Guardianship........... 720

§ 149.1. Law Governing Guardianship....... 720


Topic 1. Creation, Recognition and Dissolution...... 726

§ 152.1. The Nature of a Corporation........ 726

152.2. The Creation of a Corporation....... 727

153.1. The Location of a Corporation....... 729

153.2. Citizenship of a Corporation........ 733

153.3. Corporation as Subject or Alien....... 734

153.4. Personality of a Corporation........ 735

153.5. Residence of a Corporation........ 735

153.6. The Corporation of Another State Is a Foreign Corporation ............... 735

153.7. "Domestication" of Foreign Corporation .... 736

154.1. Recognition of Foreign Corporation...... 736

155.1. Tests of Incorporation.......... 737

155.2. What Is Recognized as a Corporation..... 738

155.3. Collateral Attack on Organization of Foreign Corporation ............... 739

156.1. Purposes of Incorporation......... 739

157.1. A Foreign Corporation Cannot Be Dissolved . . . 741

157.2. Dissolution by State of Charter....... 742

157.3. Incomplete Dissolution......... 743

157.4. Extension of Power by Foreign State..... 744

159.1. Suit after Dissolution.......... 744

159.2. Suit under Law of State of Incorporation .... 746

159.3. Suit by or against Statutory Representative . . . 746

160.1. Business within the State May Be Wound up ... 747

160.2. Property after Dissolution........ 747

Topic 2. Action by Corporation.......... 749

§ 163.1. The Corporation Must Organize in the State of Incorporation .............. 749

163.2. Stockholders' Meetings Must Be Held within the State

of Incorporation........... 751

163.3. Membership Corporations......... 754

164.1. Directors May Meet outside the State of Incorporation 755

164.2. Statutory Provisions for Directors' Meetings . . . 756

165.1. Powers of a Foreign Corporation....... 757

165.2. The Extent of Powers Conferred....... 759

165.3. The Limitation of Powers Conferred...... 760

165.4. The Proof of Powers.......... 764

166.1. A Corporation Cannot Exist outside the State of Incorporation .............. 765

166.2. A Corporation Is Everywhere Recognized as Existing within the State of Incorporation...... 766

166.3. A Corporation May Act through Agents outside the State of Incorporation ,...... 767

§ 166.4. Comity..............768

166.5. Corporate Action...........769

Topic 3. Carrying on Business...........770

§ 167.1. Right of a Corporation to Act in a Foreign State . . 770

167.2. Acts Contrary to Public Policy.......771

167.3. Acts beyond the Power of Domestic Corporations . . 773

167.4. Corporations Formed to Act in Foreign States Only . 775

167.5. Right to Exercise a Franchise.......776

167.6. A Foreign Corporation May Be Excluded from a State 777

167.7. A Foreign Corporation May Be Admitted on Terms . 777

167.8. A Foreign Corporation Is Subject to the Law of the State in Which It Acts..........779

167.9. What Laws of a State Apply to Foreign Corporations . 781

167.10. No Exemption from Local Law by Law of Charter . 783

167.11. The Power to Contract.........784

167.12. Liability for Tort...........785

167.13. The Power to Take and Hold Property.....786

167.14. Power Limited by Charter........786

167.15. Prohibition by the State of Situs.......789

167.16. Conditions Precedent to Doing Business .... 793

167.17. Mortmain Acts............795

167.18. Taking and Holding Real Estate.......797

167.19. Taking by Way of Security........798

167.20. Taking by Devise or Bequest........800

167.21. Taking by Eminent Domain........800

167.22. Taking Personal Property.........801

167.23. Protecting a Name...........802

167.24. Exercising a Franchise..........804

167.25. Taking in Trust...........804

167.26. Conveying Property..........805

170.1. State Jurisdiction over Foreign Corporations Limited . 807

170.2. Obligation of Contracts.........809

170.3. Privileges and Immunities of Citizens.....812

170.4. Equal Protection of the Laws........812

170.5. Taking Property...........814

171.1. Terms Affecting Jurisdiction of the Federal Courts . 815

173.1. State Regulation of Corporations Dealing in Patents . 818

175.1. Interfering with Interstate Commerce.....820

175.2. Transportation............821

175.3. Trade..............821

175.4. Manufacture............822

175.5. Insurance.............823

175.6. What Is an Unlawful Interference.......824

179.1. Limitation on Right to Do Business......826

179.2. Statutes Construed in Accordance with the Constitution

and with Principles of Jurisdiction......827

§ 179.3, Form of Certificate Required........ 828

179.4. What Constitutes Doing Business . . . . . .828

179.5. Single Act............. 830

179.6. Contracting............. 831

179.7. Selling and Buying........... 831

179.8. Dealing with Property.......... 833

179.9. Dealing with Promissory Notes....... 833

179.10. Continuous Business Action........ 834

179.11. Acting through Agent.......... 836

179.12. Office in Foreign State.......... 840

179.13. Railway and Steamship Companies...... 841

179.14. Action through Subordinate Domestic Company . . 841

179.15. Installations............. 843

179.16. Principal Act outside State........ 844

179.17. Exceptional Doctrine in Alabama...... 847

179.18. Solicitation............. 847

179.19. Taking Part in Suit.......... 850

179.20. What Is Doing Business: Question for the Jury . . 851

179.21. Effect of Compliance with the Statute..... 852

179.22. Effect of Non-Compliance with the Statute .... 854

179.23. Matters Not Connected with Business Done in State . 856

179.24. Authorities Holding the Transaction Valid .... 858

179.25. Authorities Holding the Transaction Void .... 860

179.26. Compliance Pending Doing Business..... 862

179.27. Withdrawal from State......... 863

179.28. Penalty for Non-Compliance........ 863

179.29. Legal Proceedings upon Non-Compliance .... 864

Topic 4. Shareholders and Directors......... 865

§ 185.1. Kinds of Individual Liability........ 865

185.2. Existence of Liability Determined by the State of Incorporation .............. 866

185.3. Liability for Unpaid Subscription...... 867

185.4. Statutory Liability to the Corporation..... 869

185.5. Direct Absolute Liability to the Creditor .... 870

186.1. No Recovery if Procedure of Forum Unsuitable . . 871

186.2. Recovery on Contingent Liability...... 873

186.3. Penal Liability of a Stockholder....... 876

186.4. Director's Liability as Surety......... 876

186.5. Director's Penal Liability......... 878

186.6. Rule in the Supreme Court of the United States . . 878

186.7. Enforcement of Judgment against the Director . . 881

186.8. Statutory Refusal to Enforce Individual Liability . . 881

186.9. Procedure Regulated by Law of Forum..... 882

186.10. Statute of Limitations.......... 883

186.11. Suit for Contribution.......... 884

§ 191.1. Original Liability of Shareholder Imposed by Foreign

State............... 884

Topic 5. Interference with Internal Affairs....... 885

§ 192.1. Jurisdiction over Internal Affairs of a Foreign Corporation .............. 885

192.2. Existence of Corporation......... 885

192.3. Power of the State of Charter to Dissolve .... 887

192.4. A Foreign Corporation Cannot Be Dissolved . . . 887

192.5. Title to Stock............ 888

192.6. Contracts Not Declared Void for Misuser of Powers . 890

192.7. Recent Tendency to Take Jurisdiction..... 891

192.8. Shareholders Bound by General Laws of State of Charter 893

192.9. Management Regulated by State of Charter ... 895

192.10. Stock and Stockholders......... 896

194.1. Officers.............. 898

194.2. Proceedings for an Account........ 899

194.3. Proceedings to Restrain Fraudulent Dealings with Property.............. 900

194.4. Proceedings to Restrain the Misuse of Property . . 900

198.1. Assessments and Dividends........ 901

200.1. Books and Records........... 901

Topic 6. Associations Incorporated by More than One State . . 902

§ 203.1. Association of Corporations Chartered by Two States . 902

203.2. Joint Action of Separate Corporations..... 904

203.3. Rechartering a Corporation in a Second State . . . 905

203.4. What Amounts to a Rechartering...... 906

203.5. Nature of the Rechartered Corporation..... 909

203.6. Legal Result of Rechartering........ 910

203.7. Consolidation of Corporations by One State . . . 912

203.8. Effect on the Constituent Corporations..... 913

203.9. Consolidation by the Joint Act of Two States ... 914

203.10. Nature of Such Consolidated Corporations .... 914

203.11. Consolidation of Corporation Which Has Been Rechartered ............. 916

203.12. Responsibility for Act of Consolidated Corporation . 918

203.13. Unity or Independence of Consolidated Corporation . 920

203.14. Statutory Provisions for Consolidation..... 922

203.15. Statutory Provisions for Holding Corporations . . . 925

207.1. Suits by and against a Consolidated Corporation . . 926

207.2. Bibliography............928a

CHAPTER 7. PROPERTY .............. 929

Topic 1. Property in General........... 932

§ 208.1. Movable and Immovable Property...... 932

209.1. Equitable Conversion of Land....... 935

213.1. Property in Contract.......... 937

Topic 2. Immovables..............938

Title A. Conveyances.............938

§ 214.1. Conveyance of Immovables ........ 938

214.2. Conveyances of Land..........939

215.1. Requisites of Deed of Conveyance......939

215.2. Interpretation............940

215.3. Fraud of Creditors...........940

216.1. Capacity..............941

218.1. Duress..............941

220.1. Legal Effect of Conveyance........942

221.1. Nature of Interest Conveyed........942

222.1. Leases and Rents...........943

222.2. Covenants.............944

Title B. Transfers by Operation of Law........945

§ 223.1. Transfer by Operation of Law.......945

224.1. Title by Adverse Possession........945

Title C. Incumbrances.............945

§225.1. Validity of Mortgage..........945

225.2. Capacity to Mortgage Land........946

225.3. Mortgage to Secure Issue of Bonds......946

226.1. Assignment of Mortgage.........946

227.1. Foreclosure.............947

227.2. Foreclosure of Mortgage to Secure Issue of Bonds . . 948

227.3. Recovery of Deficiency after Sale.......948

228.1. Redemption .............949

230.1. Lien...............949

231.1. Married Woman's Charge on Her Land.....949

Title D. Powers...............949

§ 232.1. Power by Operation of Law........949

233.1. Power Created by Owner.........950

233.2. Power of Attorney...........950

233.3. Power in a Will to Sell..........950

234.1. Power of Appointment of Land.......951

235.1. Exercise of Power to Appoint........951

236.1. What Is an Appointment.........952

Title E. Marital Property............952

§237.1. Land Owned at Time of Marriage......952

238.1. Rights in Land Acquired during Coverture .... 952

238.2. Rights Created by Foreign Contract......953

Title F. Equitable Interests...........953

§ 240.1. No Equitable Interest Created by Foreign Court of Law 953

240.2. Constructive Trust of Foreign Land......954

240.3. Enforcement of Contract to Convey Foreign Land . 955

240.4. Enforcement of Promise against Third Parties . . . 960

§241.1. Validity of Trust in Land......... 962

241.2. Effect of Conveyance in Trust....... 964

242.1. Trust in Proceeds of Sale of Land...... 964

243.1. Administration of Trust of Land....... 965

Title G. Succession on Death........... 965

§ 245.1. Intestate Succession to Land........ 965

246.1. Legitimated Child as Heir......... 966

246.2. Inheritance by a Bastard......... 967

247.1. Inheritance by Adopted Child....... 967

247.2. Inheritance from Collaterals........ 968

248.1. Dower.............. 968

249.1. Validity of Will of Land......... 969

249.2. Probate in Another State......... 970

249.3. Form of Will............ 971

249.4. Capacity to Make Will or to Take by Will . . . 971

249.5. Right to Contest Will of Land....... 971

250.1. Revocation............. 972

251.1. Interpretation, Construction, Effect...... 972

251.2. Interpretation............ 972

251.3. Effect of Language of a Will........ 974

251.4. Equitable Conversion of Land....... 975

252.1. Election by Heir........... 976

253.1. Election of Widow........... 976

254.1. Escheat of Land........... 977

Topic 3. Movables.............. 977

Title A. Conveyance............. 977

§ 255.1. Nature of Conveyance of Movables...... 977

255.2. Mobilia Sequuntur Personam........ 978

255.3. Capacity to Pass Title to Movables...... 980

255.4. Distinctions among Movables........ 981

Sub-Title 1. Tangibles............ 981

§ 255.5. Title to Chattels........... 981

255.6. Gifts Causa Mortis.......... 981

256.1. Required Formalities......... 982 '

257.1. Validity of Sale........... 982

258.1. Nature of Interest Created........ 982

259.1. Title by Adverse Possession....... 982

260.1. Effect of Removing Chattels into Another State . 983

261.1. Chattel Embodied in a Document...... 984

262.1. Securities............. 984

262.2. Blue-Sky Laws........... 985

262.3. Intangibles............ 986

263.1. Assignments for Benefit of Creditors..... 987

264.1. Assignments by Authority of Statute..... 987

264.2. Preferring Domestic Creditors....... 988

§ 264.3. Fund to Secure Domestic Creditors...... 989

264.4. Marshaling Assets........... 990

Title B. Incumbrances............. 992

§ 265.1. Chattel Mortgage where Recorded...... 992

265.2. Mortgage of After-Acquired Chattels..... 993

266.1. Removal of Mortgaged Chattel....... 993

266.2. Re-Recording............ 995

266.3. Exceptional Doctrine in Pennsylvania and Louisiana . 996

267.1. Removal after Invalid Mortgage....... 996

268.1. Removal without Consent of Mortgagee .... 996

268.2. Exceptional Doctrine in Texas ....... 997

269.1. Mortgagee's Consent to Taking....... 998

270.1. Attachment of Mortgaged Property in Second State . 998

271.1. Sale by Mortgagor........... 999

272.1. Nature of Conditional Sale........ 999

272.2. What Law Applies to a Conditional Sale .... 1001

272.3. Emphasis of Contractual Character of Sale .... 1001

272.4. Delivery of Chattel by Carrier....... 1002

272.5. Knowledge That Chattel Is to Be Taken into Another State............... 1002

273.1. Chattel Carried into Another State...... 1003

274.1. Void Title Not Made Good by Removal of Chattel . 1004

275.1. Removal without Vendor's Consent...... 1004

275.2. Subsequent Knowledge of Vendor ...... 1005

276.1. Consent of Vendee to Removal....... 1005

277.1. Attachment or Levy.......... 1005

278.1. Sale by Vendee............ 1006

279.1. Lien by What Law Created........ 1006

279.2. Priority of Lien over Mortgage....... 1007

279.3. Vendor's Privilege........... 1008

279.4. Pledge.............. 1008

280.1. Recognition of Lien or Pledge after Removal of Chattel 1008

281.1. Foreclosure of Incumbrance........ 1009

281.2. Redemption after Forfeiture........ 1009

Title C. Powers............... 1009

§ 283.1. Law Governing Power of Attorney...... 1009

285.1. Law Governing Appointment........ 1010

287.1. Appointment by Will.......... 1010

288.1. What Amounts to Appointment....... 1011

Title D. Marital Property............ 1013

§ 289.1. Effect of Marriage on Title to Movables .... 1013

290.1. Title to Movables Acquired during Marriage . . . 1013

292.1. Removal of Movables Held in Community to Another State............... 1016

§ 292.2. Removal of Movables Held Severally into a Community State...............1016

293.1. Effect of Removal on Separate Estate.....1017

293.2. Removal of Movables Separately Held into a Community State............1017

Title E. Equitable Interests...........1018

§294.1. Creation of Living Trust of Movables.....1018

294.2. Living Trusts of Chattels.........1018

294.3. Living Trusts of Securities........1019

294.4. Living Trusts of Intangibles........1020

294.5. Living Trusts of Estates or Other Units Already Aggregated ...............1020

294.6. Marriage Settlements..........1021

294.7. Trusts and the Rule against Perpetuities .... 1021

294.8. Removal of Trust Property........1021

295.1. Creation of Testamentary Trust.......1022

296.1. Interpretation of Instrument Creating Trust . . . 1023

297.1. Seat of Trust............1023

297.2. Administration of a Trust.........1024

297.3. End of Trust............1026

299.1. Supervision of Administration.......1026

Title F. Succession on Death...........1026

§300.1. Effect of Death upon Ownership of Movables . . . 1026

301.1. Widow's Allowance...........1028

302.1. Enforcement in Another State.......1029

303.1. Distribution after Administration......1029

303.2. Distribution by Law of the State Which Has the Estate ...............1031

303.2. Law of Illinois and Mississippi.......1032

303.4. Public Policy............1032

303.5. Disposition of Chattel Real........1032

303.6. Interest in an Undistributed Estate......1033

304.1. Legitimacy of Distributee.........1033

305.1. Adopted Child as Distributee........1034

306.1. Validity of Will of Movables........1034

306.2. Validity of a Particular Legacy.......1035

306.3. Capacity to Receive a Legacy.......1036

306.4. Effect of Will of Movables.........1036

306.5. Election..............1036

306.6. Equitable Conversion of Personalty......1037

307.1. Revocation of Will of Movables.......1037

308.1. Interpretation of Will of Movables......1038

309.1. Escheat..............1039

309.2. Bibliography............1040

CHAPTER 8. CONTRACTS.............. 1042

Topic 1. Place of Contracting........... 1044

§ 311.1. Meaning of the Phrase "Place of Contracting" . . 1044

311.2. What Law Determines the Place of Contracting . . 1046

312.1. Recognizances, Bonds, and Other Contracts under Seal 1046

312.2. Negotiable Instruments......... 1047

312.3. Corporate Shareholders' Contracts...... 1050

313.1. Renewal Instruments.......... 1051

314.1. Formal Contract Delivered by Mail...... 1053

315.1. Delivery by Agent........... 1053

316.1. Delivery in Escrow........... 1054

317.1. Insurance Policy Delivered by Mail...... 1054

317.2. Collateral Contracts in Insurance Policy .... 1055

318.1. Policy Delivered by Agent........ 1056

319.1. Policy Mailed to Broker......... 1058

320.1. Accommodation Paper.......... 1059

321.1. Official and Statutory Bonds........ 1062

322.1. Accounts Stated ........... 1062

323.1. Informal Unilateral Contracts....... 1064

323.2. Informal Contract to Compensate or Reimburse Agent 1066

324.1. Contract of Guaranty.......... 1068

325.1. Informal Bilateral Contracts........ 1069

326.1. Contracts Accepted by Mail or Telegraph .... 1071

326.2. Contract Accepted by Telephone....... 1073

327.1. Acceptance by Silence.......... 1073

328.1. Contract Made by Agent......... 1075

331.1. Contract Made by Unauthorized Agent..... 1076

Topic 2. Creation of a Contract.......... 1077

§332.1. Confusion of Thought on This Subject..... 1077

332.2. Rule of Choice of Law by Parties...... 1079

332.3. Rule of Place of Performance........ 1086

332.4. Rule of Place of Making......... 1090

332.5. History of the Doctrine......... 1092

332.6. Plan of Treatment of the Authorities...... 1100

332.7. England.............. 1101

332.8. English Colonies and Dominions....... 1105

332.9. The Federal Courts........... 1105

332.10. Alabama.............. 1118

332.11. Arizona.............. 1121

332.12. Arkansas.............. 1121

332.13. California............. 1124

332.14. Colorado.............. 1125

332.15. Connecticut............. 1125

332.16. Delaware............. 1126

332.17. District of Columbia.......... 1127

332.18. Florida.............. 1128

§ 332.19. Georgia..............1128

332.20. Idaho..............1130

332.21. Illinois..............1131

332.22. Indiana..............1133

332.23. Iowa...............1135

332.24. Kansas..............1136

332.26. Kentucky.............1137

332.26. Louisiana.............1139

332.27. Maine..............1140

332.28. Maryland.............1141

332.29. Massachusetts............1142

332.30. Michigan.............1144

332.31. Minnesota.............1146

332.32. Mississippi............ . 1147

332.33. Missouri..............1149

332.34. Montana..............1152

332.35. Nebraska.............1152

332.36. New Hampshire............1153

332.37. New Jersey.............1154

332.38. New Mexico.............1155

332.39. New York.............1155

332.40. North Carolina............1158

332.41. North Dakota............1159

332.42. Ohio...............1160

332.43. Oklahoma.............1161

332.44. Oregon..............1161

332.45. Pennsylvania............1162

332.46. Rhode Island............1163

332.47. South Carolina............1164

332.48. South Dakota............1164

332.49. Tennessee.............1165

332.50. Texas...............1166

332.51. Vermont..............1167

332.52. Virginia..............1168

332.53. Washington.............1168

332.54. West Virginia............1169

332.55. Wisconsin.............1169

332.56. Wyoming.............1170

332.57. Summary............. 1171

333.1. Mutual Assent............1174

333.2. Consideration............1176

333.3. Capacity..............1176

334.1. Formalities: Statute of Frauds.......1181

334.2. Other Formalities...........1183

336.1. Formalities for Negotiable Instruments.....1185

§ 337.1. Contracts Limiting Liability of Carriers and Telegraph


340.1. Contracts Relating to Real Estate......1190

342.1. Contracts of Agency or Partnership......1192

345.1. Act of Agent or Partner.........1193

345.2. Principal's Relation to Law of State of Agent's Action. 1196

346.1. Meaning of Interpretation and Obligation .... 1199

346.2. Interpretation............1201

346.3. Obligation: Negotiable Instruments......1205

346.4. Obligation: Contract of Insurance......1210

346.5. Obligation: Contracts to Sell Personalty .... 1215

346.6. Obligation: Contracts concerning Land.....1216

346.7. Obligation of Carrier..........1219

346.8. Obligation: Miscellaneous Contracts......1221

347.1. Fraud, Duress, or Mistake........1225

347.2. Legality..............1226

347.3. Gambling Contracts..........1237

347.4. Usury..............1241

347.5. Enforcement of Arbitration Agreements.....1245

347.6. Enforcement of Arbitration Awards......1249

Topic 3. Transfer of Contractual Rights........1250

§ 348.1. Place of Assignment..........1250

348.2. Assignability............1251

350.1. Validity of Assignment.........1253

351.1. Capacity of Assignor and Assignee......1255

352.1. Formalities of Assignment.........1255

353.1. Effect and Obligation of an Assignment.....1256

354.1. Priority among Assignees.........1257

Topic 4. Performance of Contract..........1259

§355.1. Place of Performance..........1259

359.1. Performance of Condition or Exercise of Option . . 1260

360.1. Illegality of Performance.........1261

360.2. Impossibility............1262

360.3. Miscellaneous Excuses for Non-Performance . . . 1264

361.1. What Amounts to Payment........1268

361.2. Mode and Details of Performance......1268

362.1. Exact Time for Performance, and Postponement . . 1269

364.1. Medium of Payment..........1270

365.1. Payment by Negotiable Instruments.....1271

366.1. To Whom Performance Should Be Rendered . . . 1271

368.1. Application of Payments.........1272

369.1. Presentment, Demand, Protest, and Notice .... 1272

370.1. Breach and Right of Action........1272

Topic 5. Discharge of a Contract without Performance .... 1275

§373.1. Rescission............. 1275

374.1. Release.............. 1275

374.2. Discharge of Joint Debtor or Surety...... 1277

374.3. Discharge of Obligation of Corporation..... 1278

375.1. Discharge in Bankruptcy......... 1278

375.2 Discharge in Insolvency......... 1280

375.3. Discharge of Obligation to a Deceased Person . . . 1281

375.4. Bibliography............ 1282

CHAPTER 9. WRONGS............... 1285

§ 377.1. Introduction............. 1286

Topic 1. Tort................ 1287

§377.2. Place of Wrong............ 1287

378.1. Necessity of Cause of Action........ 1288

378.2. Law Governing Right of Action for Tort .... 1289

378.3. Recovery Where Law of Place of Wrong Allows It . 1290

378.4. Action Not Allowed at the Place of Wrong . . . .1290

378.5. English Doctrine........... 1292

379.1. Negligent Tort............ 1293

380.1. Rules and Standards of Care........ 1294

383.1. Causation............. 1296

384.1. Enforcement of Foreign Right of Action .... 1298

385.1. Contributory Negligence......... 1298

385.2. Comparative and Computed Negligence..... 1299

385.3. Proof of Contributory Negligence...... 1300

386.1. Liability to Servant for Tort of Fellow-Servant . . 1301

388.1. Affirmative Defence.......... 1302

389.1. Discharge of Action for Tort........ 1303

390.1. Survival of Action........... 1304

Topic 2. Damages for Death........... 1305

§ 391.1. Law Governing Right of Action....... 1305

392.1. Suit in Any State........... 1307

392.2. Action Differs from That of Forum...... 1308

392.3. Attempt to Restrain Suit Abroad...... 1311

393.1. Damages, How Distributed........ 1312

395.1. Suit by Person Designated........ 1312

396.1. Suit by Personal Representative....... 1313

397.1. Limitation of Action.......... 1316

Topic 3. Workmen's Compensation Act........ 1317

§398.1. Nature of Compensation Act........ 1317

398.2. Recovery by Act of Place of Hiring...... 1318

398.3. Localization of Enterprise......... 1320

398.4. Later New York Rule.......... 1321

§ 399.1. Law of the State of Injury........ 1321

401.1. State Neither of Hiring Nor of Injury ..... 1322

401.2. Tort Action at Place of Injury....... 1322

401.3. Right to Recover in State of Injury...... 1326

402.1. Effect of Two Acts Governing Injury .... 1327

403.1. Recovery after Recovery Abroad....... 1327

Topic 4. Maritime Torts............. 1328

§ 404.1. Injury in Territorial Waters........ 1328

405.1. Acts Affecting Internal Economy of Vessel .... 1328

406.1. Injuries on the High Seas......... 1329

407.1. Navigation in Territorial Waters....... 1329

408.1. Navigation on the High Seas........ 1330

410.1. Injury by Collision on the High Seas..... 1330

411.1. Limitation of Liability for Maritime Injury . . . 1332

411.2. General Average........... 1332

Topic 5. Damages.............. 1332

§412.1. Nature of Damages........... 1332

412.2. Damages for Tort........... 1333

412.3. The Federal Employers' Liability Act..... 1333

413.1. Damages for Breach of Contract....... 1333

414.1. Damages for Breach by Telegraph Company . . . 1334

416.1. Breach of Mercantile Obligation....... 1335

418.1. Rate of Interest Allowed as Damages..... 1335

418.2. Rate of Interest............ 1335

419.1. Interest on Damages for Injury to Property. . . . 1338

420.1. Interest on Judgments.......... 1338

421.1. Penal Damages............ 1339

422.1. Agreed or Liquidated Damages....... 1340

423.1. Damages for Failure to Pay Money of a Foreign State 1340

424.1. Exchange on Foreign Cause of Action..... 1340

424.2. Note from Harvard Law Review....... 1341

Topic 6. Crime............... 1349

§ 425.1. Jurisdiction to Punish Crime........ 1349

425.2. Act Connected with the State....... 1349

425.3. Failure to Act............ 1350

426.1. Offence by National Abroad........ 1351

426.2. Offence on Vessel or on Border Seas...... 1351

428.1. Place for Punishing Offence: Single Act..... 1352

428.2. Offences Connected with Property...... 1353

428.3. Forgery and Uttering.......... 1355

428.4. Abandonment of Family......... 1355

428.5. Crime Involving Cause and Result...... 1356

428.6. Jurisdiction to Extend Criminality by Statute . . . 1358

428.7. Any Part of the Crime Committed in State .... 1359

428.8. Commission of Crime by an Agent...... 1359

428.9. Bibliography............ 1361

CHAPTER 10. FOREIGN JUDGMENTS ........... 1363

Topic 1. Judgments.............. 1364

Title A. Recognition of a Foreign Judgment...... 1364

§ 429.1. Nature of Judgment.......... 1364

429.2. Impartial Court............ 1365

429.3. Response to Pleadings.......... 1366

429.4. Opportunity to Be Heard......... 1367

429.5. Jurisdiction of the Court......... 1369

429.6. Presumption of Jurisdiction........ 1371

430.1. Recognition of Right Created by a Judgment . . . 1371

431.1. Error in Law or Fact.......... 1372

432.1. Procedural Error........... 1374

432.2. Judgment Void Where Rendered....... 1375

432.3. Defect of Competence of Court....... 1377

Title B. Enforcement of a Foreign Judgment...... 1377

§ 433.1. Execution on Foreign Judgment....... 1377

434.1. Money Judgment........... 1379

434.2. The Doctrine of Reciprocity........ 1381

434.3. Criticisms of Reciprocity......... 1385

434.4. Natural Justice............ 1389

434.5. No Action to Enforce Foreign Judgment .... 1390

435.1. Judgment Must Be Final......... 1390

435.2. Judgment for Alimony.......... 1392

436.1. Amount of Judgment Must Be Fixed..... 1394

437.1. Unconditional Judgment......... 1395

437.2. Alternative Judgment.......... 1396

438.1. Appeal.............. 1397

439.1. Permanent Injunction against Exercise of Right . . 1399

440.1. Impeachment of Foreign Judgment for Fraud . . . 1401

440.2. Impeachment of Judgment of Foreign Country. . . 1402

440.3. Bill for Injunction........... 1403

440.4. What Constitutes Fraud......... 1403

441.1. Amount of Judgment.......... 1406

442.1. Judgment on Judgment......... 1407

443.1. Governmental Claims.......... 1408

444.1. Foreign Judgment upon Penal Claim..... 1411

445.1. Judgment against Public Policy....... 1412

446.1. Full Faith and Credit and Public Policy .... 1413

449.1. Foreign Decree Not for Money....... 1416

450.1. Nature of Res Judicata.......... 1419

450.2. Fact Finding in a Judgment of Another State Binds Parties.............. 1420

450.3. Fact Finding in Judgment in Rem...... 1420

450.4. Who Are Privies to the Parties....... 1421

450.5. Who May Take Advantage of Res Judicata . . . 1422

§450.6. Who Are Bound: Minors......... 1422

450.7. Decree for Custody of Child........ 1423

450.8. Title of Land............ 1423

450.9. Res Judicata of Jurisdictional Fact...... 1424

450.10. Cause of Action Merged in Judgment..... 1425

450.11. Former Judgment Not on Merits....... 1425

450.12. Judgment on Non-Suit.......... 1425

450.13. Issue Must Appear or Be Proved....... 1426

450.14. Full Effect of Judgment in Rem....... 1426

450.15. No Merger in Real Action......... 1427

450.16. No Merger in Judgment of Foreclosure..... 1427

450.17. No Merger in Second Judgment....... 1427

450.18. Different Right Now Involved........ 1428

450.19. Election in Another State......... 1429

450.20. Lis Pendens............. 1429

450.21. Judgment as to Personal Quality....... 1429

Topic 2. Quasi-Contractual Obligations........1429

§452.1. Compensation for Services.........1429

Topic 3. Alimentary Duties............1430

Title A. Filiation Orders............1430

§ 454.1. Bastardy Proceedings..........1430

Title B. Support.............. 1432

§457.1. Support of Minor Child ........ 1432

457.2. Support of Adult Child.......... 1433

457.3. Support of Wife............ 1434

Title C. Widow's Allowance...........1434

§ 461.1. Widow's Allowance...........1434

Title D. Alimony..............1435

§ 462.1. Alimony Allowed in Foreign Court......1435

462.2. Bibliography.............1438

Administration and Procedure


Topic 1. Administration of Decedents' Estates......1444

Title A. Appointment of Administrator and Probate of Wills . . 1444

§ 465.1. Administrations of Various Kinds...... 1444

465.2. History of Administration......... 1445

465.3. Ancillary Administration......... 1447

465.4. Distribution without Administration...... 1448

466.1. Relation between Administrators....... 1449

467.1. Appointment of Administrator at Domicil of Decedent 1449

§ 467.2. Appointment of Administrator Where Assets Are . . 1450

467.3. Appointment of Administrator at Domicil of Debtor . 1452

467.4. Debtor Temporarily Present........ 1453

467.5. Garnishment of Foreign Debtor....... 1456

467.6. Appointment of Administrator to Sue for Wrongful

Death.............. 1457

467.7. Appointment of Administrator Where Land of Deceased Is................ 1461

467.8. Claim against Government or Any Royalty . . . 1462

468.1. Administration by Law of State of Administration . . 1462

469.1. Probate at the Domicil......... 1463

469.2. Probate in Another State......... 1464

470.1. Effect of Judgment on Validity of Will..... 1465

Title B. Collection of Chattels and Claims....... 1467

§471.1. Preliminary Discussion......... 1467

471.2. Domiciliary Representative as Universal Successor . 1467

471.3. Policy to Protect Local Creditors....... 1470

471.4. Localization of Assets.......... 1473

471.5. Situs of Tangible Personal Property for Purpose of Administration............ 1476

471.6. Thing outside the State Temporarily..... 1476

471.7. Bonds.............. 1479

471.8. Negotiable Instruments......... 1480

471.9. Bank Deposit............ 1487

471.10. Insurance Policy . ......... 1488

471.11. Judgment Debts...........1492

472.1. Administrator Takes Assets to Another State . . . 1494

473.1. Chattel Brought into State after Owner's Death . . 1494

474.1. Administrator Receiving Assets outside His State . . 1497

475.1. Possessor of Chattel Gives It to Foreign Domiciliary Administrator............ 1498

477.1. The Nature of Shares in a Corporation..... 1498

477.2. Effect of Uniform Stock Transfer Act..... 1501

477.3. Administration in State of Charter...... 1503

477.4. Administration of Certificate Where Found .... 1506

480.1. Payment of Debt to Local Administrator .... 1510

481.1. Collection of Claim by Foreign Administrator without Suit...............1510

Title C. Transfer of Chattels and Claims.......1512

§ 482.1. Assignment of Claim by Administrator.....1512

484.1. Transfer of Local Assets to Foreign Administrator . . 1513

Title D. Administration Relating to Land....... 1514

§ 487.1. Lack of Power of Administrator over Foreign Land . 1514

487.2. Administration of Foreign Land....... 1514

488.1. Ancillary Administration of Local Realty .... 1515

§ 489.1. Sale of Land to Pay Foreign Claims......1517

490.1. Right of Heir to Reimbursement.......1518

491.1. Power to Foreign Executor to Sell Land.....1519

492.1. Foreclosure of Mortgage.........1520

493.1. Foreclosure by Assignee of Foreign Administrator . . 1523

494.1. Exercise of Power of Sale in Mortgage.....1525

Title E. Proof and Payment of Claims........1526

§495.1. Proof by Creditors...........1526

496.1. Remission to Domicil without Payment to Creditors...............1527

497.1. Preferences.............1527

498.1. Time for Proving Claims.........1527

500.1. Effect of Part Payment.........1527

501.1. Insolvent Estate...........1528

502. Proportionate Payment of Claims......1528

503.1. Marshalling Assets...........1528

Title F. Suits by and against Administrators......1529

§ 504.1. Suit in State of Appointment........1529

504.2. Suit against Local Administrator.......1529

505.1. Judgment for Administrator on Debt Due Estate . . 1530

506.1. Judgment for Defendant on Suit by Administrator . 1531

507.1. Suit by Foreign Administrator.......1532

507.2. Statutory Power to Foreign Administrators .... 1533

508.1. Rights Accruing after the Death.......1545

509.1. Suit on Mercantile Paper.........1547

510.1. Effect of Judgment against Foreign Administrator . . 1548

512.1. Suit against Foreign Executor or Administrator . . 1552

512.2. Action of Court of Equity to Preserve Assets . . . 1554

513.1. Effect of Appearance by Foreign Administrator . . 1555

514.1. Judgment against Foreign Administrator .... 1556

515.1. Transactions after Death of Decedent.....1558

516.1. Waste or Conversion of Assets.......1558

518.1. Continuance of Jurisdiction over Administrator . . 1559

Title G. Accountability of Administrator.......1560

§ 519.1. Accountability of Administrator.......1560

520.1. Same Person Appointed in Two States.....1561

521.1. Administrator Owing Debt to Administrator, Debtor, or Creditor of Estate..........1563

Title H. Disposition of Balance..........1563

§ 522.1. Disposal of Surplus...........1563

522.2. Legatees and Administrators........1565

523.1. Effect of Unpaid Debts.........1566

524.1. Receiving Administrator's Responsibility .... 1567

524.2. Bibliography.............1568

Topic 2. Receiverships............. 1568

Title A. Appointment of Receiver......... 1568

§526.1. Nature of Receivership.......... 1568

526.2. Appointment of Principal Receiver...... 1569

526.3. Federal Receiver........... 1569

526.4. Statutory Receiver........... 1570

526.5. Assignment to Receiver......... 1570

527.1. Ancillary Receiver........... 1570

529.1. Relation of Receivers to Each Other...... 1573

529.3. Statutory Regulation of Receivers...... 1573

Title B. Collection of Chattels and Claims....... 1574

§532.1. Administration of Chattels......... 1574

533.1. Receiver's Possession Recognized in Other State Where Chattel Taken............ 1574

535.1. Chattels outside the State of Appointment .... 1574

535.2. Foreign Receiver Taking Chattels in State .... 1575

535.3. Carrying on Business.......... 1575

Title C. Transfer of Chattels and Claims by Receiver .... 1576

§547.1. Transfer of Chattel by Receiver....... 1576

548.1. Transfer of Claim by Receiver....... 1576

Title D. Administration Relating to Land....... 1576

§ 549.1. Right of Foreign Receiver to Deal with Land . . . 1576

Title E. Proof and Payment of Claims........ 1577

§ 552.1. What Claims Provable.......... 1577

553.1. Payment of Claims or Transmissal of Assets . . . 1577

554.1. Preferences............. 1577

559.1. Proportionate Payment in Insolvency..... 1577

Title EE. Competition of Receiver and Creditors..... 1578

§ 560A.1. Competition of Foreign Receiver and Domestic Creditors ............... 1578

560A.2. Competition of Foreign Receiver and Foreign Creditors 1579

560A.3. Competition of Foreign Receiver and Creditors from His Own State............ 1579

560A.4. Statutory Successor May Compete with Creditors . . 1581

560A.5. Foreign Receiver Claiming as Assignee..... 1582

560A.6. Foreign Receiver Claiming as Legally Entitled . . . 1582

Title F. Suits by and against Receiver........ 1584

§ 562.1. Judgment for Receiver.......... 1584

564.1. Suit by Receiver........... 1584

564.2. Remedy Where Receiver Not Allowed to Sue ... 1586

564.3. States Allowing Suit.......... 1586

565.1. Suit by Receiver as Assignee........ 1588

566.1. Suit to Enforce Shareholder's Liability..... 1588

567.1. Statutory Successor.......... 1588

§ 568.1. Suit on Transaction Arising after Appointment . . 1589

571.1. Suit against Foreign Receiver........1589

Title G. Accountability of Receiver.........1589

§ 579.1. Accountability of Receiver to Court......1589

Title H. Disposition of Balance..........1590

§ 581.1. Disposition of Balance in Ancillary State .... 1590

583.2. Bibliography............1590

Topic 3. Guardianship............. 1591

§ 583A.1. Guardianship of Property......... 1591

583A.2. Power to Sell Real Estate......... 1592

583A.3. Suits by and against the Guardian or Ward . . . 1593

583A.4. Accounting............. 1595

583A.5. Removal of Foreign Estate to Ward's Domicil . . . 1595

CHAPTER 12. PROCEDURE .............1598

Topic 1. Distinction between Substance and Procedure .... 1599

§ 584.1. Substance and Procedure.........1599

584.2. Determination whether Question One of Procedure . 1601

Topic 2. Proceedings in Court........... 1601

§586.1. Proper Court............ 1601

587.1. Form of Action............ 1601

588.1. Parties.............. 1603

588.2. Joinder of Parties........... 1603

589.1. Service of Process........... 1604

590.1. Methods of Securing Obedience to Court .... 1604

591.1. Commencement of Action......... 1605

593.1. Set-Off and Counterclaim......... 1606

594.1. Mode of Trial............ 1607

595.1. Proof of Facts. Determination and Application of Standards............. 1609

595.2. Presumptions............ 1610

595.3. Burden of Proof............ 1611

595.4. Assent to Limitation in Contracts of Carriage . . . 1612

596.1. Witnesses............. 1613

597.1. Evidence.............. 1614

598.1. Oral Evidence............ 1614

599.1. Integrated Contracts.......... 1615

600.1. Execution of Judgment.........1615

600.2. Exemption Laws in Garnishment Proceedings . . . 1616

Topic 3. Conditions of Maintaining Suit........ 1618

§602.1. Statute of Frauds........... 1618

603.1. Statute of Limitations of Forum...... . . 1620

604.1. Foreign Statute of Limitations....... 1621

604.2. Statute Providing Action Barred....... 1622

§ 604.3. Statutes which "Extinguish the Right"..... 1622

604.4. Foreign Judgments........... 1625

604.5. Statute of Limitations in English Law..... 1626

604.6. Statute of Limitations in Federal Courts .... 1627

605.1. Time Limitations on Cause of Action..... 1627

606.1, Limitations of Amount Recoverable...... 1629

Topic 4. Access to Courts............ 1630

§ 607.1. Actions by Sovereigns and Aliens...... 1630

608.1. No Form of Action Provided........ 1631

609.1. Action Would Result in a More Onerous Duty . . . 1631

610.1. Enforcement of Foreign Revenue Laws in England . 1633

610.2. Enforcement of Foreign Revenue Laws in the United States.............. 1635

610.3. Actions Based on Proprietary Claims..... 1638

611.1. Actions to Enforce Statutory Liability of an Officer as Director..............1639

611.2. Action on Death Statute.........1641

611.3. Miscellaneous Actions.......... 1645

612.1. Action Contrary to Public Policy....... 1647

613.1. Real Action for Land.......... 1652

614.1. Action for Trespass on Foreign Land..... 1652

615.1. Injury to Foreign Land......... 1659

616.1. Action on Covenant Running with Land .... 1660

617.1. State Creating Right.......... 1660

619.1. Prior Action Pending in Another State..... 1662

620.1. Prior Judgment............1663

Topic 5. Foreign Law......... . . . . 1663

§ 621.1. Nature of Problem........... 1663

621.2. Judicial Notice of the Law of a Foreign Country . . 1664

621.3. Judicial Notice of the Law of Sister State .... 1665

621.4. Pleading Foreign Law.......... 1667

621.5. Proof of Foreign Law.......... 1669

621.6. Proof of Foreign Law in the English Courts . . . 1673

622A.1. Presumptions of Foreign Law........ 1675

622A.2. Presumptions of Law of a Foreign Country .... 1676

623.1. Presumption of the Law of Sister State..... 1682

624.1. Judicial Notice in the Federal Courts..... 1686

625.1. Appellate Courts........... 1688

625.2. Bibliography............ 1689

TABLE OP CASES ................1691





Assistance Acknowledged

This book could not have been written without the eager cooperation of forty classes of students. In the discussions in the classroom one's mind is cleared more than in a score of years of private investigation. One submits one's conclusions to the class and the class pick out the weak points, ruthlessly out-argue an illogical rule or one not fairly based upon ethics or the requirements of society. It used to be said of the author that as fast as his class punctured a false theory he was observed propounding a new one. And this was true; for if his conclusion proved untenable he at once revised it in the light of the destructive criticism to which it had been subjected. When a conclusion was reached which could not be successfully attacked by a class one took it provisionally to be sound. In this way forty classes have at least taught the author what he did not know and in that way made sure within the bounds of reasonable error that conclusions which had stood such criticism were fairly sound.

The result of this constant trial and error has been to build up in the author's mind a systematic conception of the Conflict of Laws which he endeavored to set forth in the Restatement of the Conflict of Laws by the American Law Institute of which he was Reporter. Some of his conclusions proved untenable, and were changed by his Advisers, to whom he owes a second great debt for his knowledge of the Conflict of Laws. A number of changes have been made by other agencies of the Institute, especially in Chapters 10 and 11 of the Restatement, which seem to him entirely contrary to the general system which he has constructed. He is therefore taking the liberty of advancing his own opinion, though with due reference to the fact that it has not found acceptance by the American Law Institute.

Of all the Advisers on the Conflict of Laws, the one who has been of most constant use to the Reporter in Chapters 2, 3,

and 4, is his colleague, Professor Austin W. Scott. His advice in the way of presenting the subject and on statements of the law has been followed. In the present work that part of Chapter 4 which deals with Jurisdiction over Persons was principally formulated and written by Professor Scott.

In addition to this assistance, the author is glad to acknowledge the valued aid of the following persons all of whom, except the last, have been his pupils.

The General Bibliography was brought down to date by Mr. Charles Horsky.

In that part of Chapter 4 which deals with Jurisdiction over Things the author was assisted by his pupil, Miss Marjorie Hurd of the Boston Bar.

Chapter 4A owes a great deal to the thesis of Professor A. L. Harding, afterwards published under the title "Double Taxation of Property and Income." Out of the conferences on Professor Harding's thesis has grown an increased knowledge of the difficult subject.

A large part of Chapter 5 was written after investigation under the author's direction by Messrs. John Laughlin of the Pittsburgh Bar, and Daniel M. Sandomire and Randolph H. Guthrie of the New York Bar.

In Chapter 6 great help was derived from the work of Allen E. Throop, Esq., who was the author's assistant in blocking out of the chapter. Aid was also received by conferences with Henry E. Foley of the Boston Bar, as a result of which his thesis on "Corporations Chartered in More than One State" was prepared.

That part of Chapter 7 which has to do with Conditional Sales was carefully worked over by Daniel M. Sandomire, Esq., of the New York Bar.

Chapter 8 was largely blocked out by Nathan Green, Esq., of the New York Bar and was finally formulated by John Mulford of the Pennsylvania Bar.

Chapter 9 was to a considerable extent written by Nathan Witt of the New York Bar. The author has also been assisted by the thesis of his pupil, Professor William H. Hastie. And help was given by Dr. P. G. Phillips.

Chapter 10 was worked over by Bernard E. P. McCaffery of the New York Bar.

Chapter 11 was worked up by the author's colleague and assistant, Professor Calvert Magruder.

In Chapter 12 the author has taken advantage of the excellent work of Edgar Ailes, Esq., who was not his pupil but at least his correspondent, and a pupil of his pupil Professor Herbert F. Goodrich.

In addition to these there have been numerous aids without which the book could not have been written. Especially to Gladys E. Chase, his secretary for many years, is due the author's gratitude for patient and intelligent secretarial work.

The Milton Fund of Harvard University helped the author to employ several of his assistants by a grant, renewed a second year.

Lest the reader should minimize the work remaining for the author to do, let it be added that he himself has spent a large part of his time for the last twenty years in collecting and analyzing authorities and in formulating statements; and that the actual preparation of the final draft of this work has occupied most of his working time for more than two years. Writing a modern legal treatise may or may not be for the good of the profession; it is certainly not profitable for the author.


Nature of this Work

This work is to too great an extent a mere digest. One who attempts to write a book for lawyers in these days becomes overwhelmed with his material, and that is especially true in this book. The author has attempted to give his own views on each subject, but he has been forced to make most of his statements a mere summary of the effect of decisions. This, however, will be no detriment to the busy lawyer who has to use it.

The author has attempted to include every decision based upon the Conflict of Laws, but he knows that he has not done so by a considerable proportion of all decisions. He would be happy to be assured that he had included half the decisions. There are peculiar difficulties in assembling the cases on this subject. There is no heading under which all the cases are grouped in any of the ordinary books of reference. One must find his material by a search in scores of digest headings; and nothing but a word to word reading of the "American Digest," which one believes would take more years than the author has to spend on it, could insure completeness. The cases cited have been brought down in the first volume to January 1, 1934; in the second volume to July 1, 1934; and in the third volume to January 1, 1935. As it has taken a year actually to print the work, this progressive examination has become necessary.

One difficulty in working over the material is that it is now formulated as a whole subject for the first time. The third edition of Wharton's "Conflict of Laws," prepared by the Lawyers' Cooperative force, was well done, and collected the authorities up to the time of its publication, which was 1906. It is probable that more than half the cases on this topic have been decided since the date of its publication. Story's book, first published in 1834, just 100 years ago, is classic, but can hardly be relied upon even as an analysis of the subject; since Story was forced to depend for a large part of his work upon foreign authorities, and, as will be insisted upon in this work, our Conflict of Laws is a branch of our Common Law and has

no more relation to the Conflict of Laws of the Continent than our law of Contracts has to the law of Obligations of France or Germany. Dicey's book, first edition 1896, is excellent; but being based on English authorities alone its analysis is rather simple. It is the enormous bulk of our case law which has enabled American scholars to analyze the Conflict of Laws and develop it in a way which is impossible to an English author who has only a few decisions and some judicial conjectures to deal with.


History of this Work

This treatise on the Conflict of Laws was begun twenty years ago; but the burdens of war time on those too old to do active work, and therefore trying to carry on as law teachers, was great, and soon after the war ended the American Law Institute was formed and the author was appointed Reporter on the Conflict of Laws. This work has taken most of his time up to two or three years ago.

The real history of the work begins, however, forty years ago when the author began to study the subject with the particularity that a teacher must give to his study, and to submit his conclusion to the cleansing fire of class criticism. The efforts of forty classes show one the way. After ten years the author began his treatment of the subject for lawyers in practice. An analysis was made in 1908 or thereabout. An introductory part was published in 1916. This received a little criticism, and on the whole criticism less enlightening than that of a class. The general bibliography and the introductory chapter have been placed in this volume with necessary additions and changes. Those parts of the preliminary book of 1916 which consider the history of thought on the subject and the present doctrine have not been inserted here. Scholars desiring them may consult the earlier work.

The actual preparation of the author's material began with the treatises prepared for the American Law Institute, about ten years ago. The final drafting of the text began a little more than two years ago.

Thus slowly is one's plan formed; and the final drafting of the work has been too rapid. But one who hears the evening bell must hasten his work, if he is to finish it.


The author's legal principles have been criticised by a current but ephemeral school of legal philosophy as conceptual and legalistic. If this means, as it seems to do, that they are the fruit of thought and lawyerlike, the author accepts the criticism as in the highest degree honorable. If it is intended to charge the author with inventing each principle and then deducing from it rules based rather on logic than on reality, the criticism is untrue.

The author believes that law is a traditional manner of thought about right behavior; the lawyers and judges are experts in it. To learn it the process seems to be as follows: First, many decisions are examined, before a provisional opinion is formed, followed by discussion on the basis of ethical, economic, and social considerations as well as the historical course of the law. Error having been found in the first opinion, an opinion is formed, which in absence of being shown false is accepted as true. This process of trial and error, which is the true scientific process, as the author understands it, is the method which appears to be that of every lawyer desiring to argue a case or to make a brief.

One cannot deny that most of the statements in this work will be dogmatic. Does not the Bar desire dogmatic statements? It is true that the principles herein developed rest in the last analysis only on the authority of the author; but it is believed that a lawyer goes to a treatise principally to find the state of judicial authority on a topic, and if he seeks anything else it is, such as it may be, of the author for the proposition mentioned. In general, therefore, the author will state his conclusions dogmatically, particularly when he may rest them on the authority of the American Law Institute. When he differs from the form of statement of the Law Institute he will so state.

They reckon falsely who think of the author as an exponent of a school of legal philosophy. Philosopher he is none; nor need he apologize for this fact in a book written for lawyers. One deals in facts only. One studies decisions, which are facts of our law, and the inferences from these which after forty years study and teaching seem to be necessary. The value of this book will depend upon how far the author's inferences are justified. If they appear on the whole to be justified the book will have served its purpose.

Relation of this Work to the Restatement

This work is printed in the form of a Commentary on the Restatement of the Conflict of Laws issued by the American Law Institute. The author has therefore followed the numbering of the sections in the Restatement. Each section in this book is doubly numbered. Before the decimal point the numbering is that of the section in the Restatement. After the decimal point comes the serial number of the sections commenting upon the Restatement section. Certain parts of the work cover subjects not taken up in the Restatement, such as Section 9A, on Rights, and Chapter 4A, on Jurisdiction to Tax. The same form of numbering sections, however, has been carried out in these portions of the work. Chapter 6, on Corporations, goes considerably beyond the scope of the similar chapter in the Restatement, and is in fact a second edition of the nonstatutory portion of the author's treatise on Foreign Corporations.

This form of writing has its advantages. It at once directs attention to the Restatement; and the Restatement has been worked over by the most extraordinary group of teachers of the subject, of judges of distinction, and of lawyers who stand at the head of their profession, ever collected for the purpose of developing the Conflict of Laws of common-law countries. No lawyer can safely give an opinion or argue a question of law without considering the Restatement. To such as need a commentary, this work is offered, ready for the purpose so far as its division into sections is concerned.

But there are disadvantages also in this plan. The Restatement was not prepared as a basis for a treatise. The first four chapters were, to be sure, based upon an "accompanying treatise" prepared to fit the Restatement; a plan that was soon abandoned. Some of the later chapters were written after the Restatement took shape. Chapter 6, however, is based upon the author's treatise on Foreign Corporations, written thirty years ago; and it ill fits with the form of the Restatement. Even there, however, it is believed that a study of the table of sections at the beginning of the chapter will enable the user of the Restatement to find what he wishes.

NELSON, HORACE. Selected Cases, Statutes and Orders Illustrative of the Principles of Private International Law as Administered in England, with a commentary. London, 1889; pp. xxiii, 483.

A collection of English cases on the subject, with a commentary which is substantially an annotation of the English cases and statutes.

PELLERIN, PIERRE. A Digest of Cases Decided in France Relating to Private International Law. London, 1915; pp. 134.

About 300 cases arranged in order of subject matter, from arbitration to wills, and with a brief note on the French law bearing on each decision.



Topic 1. Subject Matter and Meaning

Section 1. Subject Matter of Conflict of Laws.

§ 1.1. Definition of the Subject. — The branch of the law called for convenience The Conflict of Laws deals primarily with the application of laws in space.[1] Whenever a question is raised of applying to a juridical situation the law of one or of another country, the question so raised must be settled by the principles of the Conflict of Laws. Thus when parties married in one state are living together in another, when property situated in one state is to be transferred in another, when a contract is made in one state to be performed in another, or when suit is brought in one state for breach of an obligation arising in another, a juridical situation arises where the law applicable might be in doubt; and this doubt is settled by the principles of the Conflict of Laws.

As Bustamante well shows,[2] the question presents itself in a two-fold aspect: what law created a certain right; or, what right could a certain law create? The older writers confined themselves to the first phase of the question; while the later writers tend more and more to fix their minds on the second.

Perhaps this distinction may be made clearer by a few illustrations. Suppose John appears in the state of New York with a horse, having ridden into the state from Massachusetts. Thomas appears from Massachusetts and makes a claim upon the horse, founding his claim upon a transaction

[1]A similar topic, The Application of Laws in Time (Zeitliche Gränzen, Savigny 49), has no generally accepted name; and though it makes use of similar principles it is not usually regarded as sufficiently important for separate treatment. Its general principle is that of the non-retroactivity of laws. See Affolter, Inter-temporal Law; Cavaglieri, Diritto Int. privato e diritto transitorio (1904). [2] Bustamante, 95. in Massachusetts. The older writers would have asked, by what law are the rights of Thomas in the horse to be judged? The later writers would be more likely to ask, did the law of Massachusetts, under which Thomas claims his right, have power to create it? Or suppose John makes an agreement in New York, fails to perform it, is sued upon it, and sets up the defence that he is an infant by the law of Massachusetts, his domicil: it might be asked, by what law is his capacity to be determined; or, on the other hand, does the law of Massachusetts have the power to make him incapable in New York.

This distinction might be thought merely verbal, and dismissed as of no importance. But the way in which the subject is put may indicate a fundamentally correct or incorrect conception of the principles underlying the subject, as will hereafter be seen. The older form seems to rest upon the theory that the applicability of law to the facts of the case may properly be determined as of the moment of litigation. The more modern form, on the other hand, is the natural expression of the principle, which seems indisputable, that the applicability of law to the juridical facts must be determined as of the time of their occurrence. Some proper law must have governed the juridical situation at the moment of its occurrence; the effort of the court is to determine what that law was; and that involves a question of the power of some particular law to extend to and rule the juridical situation.

§ 1.2. Other Definitions. — Definitions of the subject of our study are almost as numerous as the authors who have written upon it. No attempt will be made to repeat all the definitions which have been proposed. They may roughly be divided into three classes.

First: Definitions which emphasize the solution of the conflict of two laws, either of which in the nature of things might be applicable. Such is the definition of Asser:[l] "The body of the principles which determine what law is applicable either to the juridical relations between persons belonging to different states or to acts done abroad, or in short in all cases where it is a question of applying the law of one state within the territory of another." The definition of von Bar [2] is of the same sort: "Private international law determines the applicability of the legal systems and the jurisdiction of the agencies — the courts and magistrates — of different states in private legal relations." So Foelix:[3] "The body of rules by which are judged the conflicts between the private law of different nations." Story:[4] "The jurisprudence arising from the conflict

[1] §1.

[2] § 1, p. 1.

[3] p. 2.

[4] p. 9.

of the laws of different nations in their actual application to modern commerce and intercourse." Pillet: [1] "The science which creates juridical regulations for international relations of a private nature."

Second: Definitions which emphasize the difference in nationality of the subjects of the rights involved. Such is Fiore's definition:[2 ] "The science which establishes the principles for resolving conflicts of laws, and for regulating the mutual relations of the subjects of different states." Similar definitions are those of Torres Campos, Pedroza, and de Martens.

Third: Definitions which emphasize the limitation of legislative jurisdiction. Such is another definition of Pillet.[3] "A system of conciliation, destined to fix the rational limits of the respective legislative jurisdiction [of national laws] in all cases where international commerce has resulted in creating a conflict between their principles." Savigny [4] describes the subject as "the local limitations of the authority of the rules of law." Rolin [5] defines it as "The body of rules which define the rights of foreigners, and the respective jurisdictions of the law of different states so far as private rights are concerned." Bustamante [6] has a similar definition: "The body of principles which determine the limits in space of the legislative jurisdiction of states, when it is applied to juridical relations which might be submitted to either jurisdiction"; or more concisely, "The science which limits legislative capacity in space."

The curious may be interested in further essays at definition.

"That department of national law which arises from the fact that there are in the world different territorial jurisdictions possessing different laws." [7]

"That branch of the law of a country which relates to cases more or less subject to the law of other countries." [8]

"That portion of the law of each state which determines the conditions in accordance with which legal relations are governed by the principles of some other system of law." [9]

"Principles . . . governing the extra-territorial operation of law or recognition of rights." [10]

[1] Principes, 7.

[2] p. 3.

[3] Principes, 123.

[4] p. 45. [5] i, 12.

[6] i, 10.

[7] Westlake, 1.

[8] Wharton (3d ed.), i, 2.

[9] Harrison in Clunet, 1880, 540.

[10] Dicey, 3.

"The law which has to do with foreigners." [1]

"The law which, having determined nationality, regulates the relations of States so far as concerns the juridical condition of their respective subjects, the efficacy of the judgments of their courts and of the official acts of their officers, and especially the conflict of their laws." [2]

"The body of rules applicable to the solution of the conflicts which may arise between two sovereignties with regard to their respective private laws, or to the private interests of their citizens." [3]

"The rules which should be followed in the conflict of private laws of different states." [4]

"The branch of law which is concerned with private legal relations which contain a foreign element." [5]

"An aspect of private law which involves such juridical relations between individuals as transcend the sphere of national law." [6]

"The legal principles which determine which of several objective private laws of different places are to be applied to a certain private legal relation: the legal principles, in other words, which relate to the applicability in space of private law; the rules for the application of law in space." [7]

§ 1.3. Practical Necessity for This Branch of Law. — International commerce created the necessity for some principle of law which should protect the interests and give effect to the undertakings of the foreigner. As foreign commerce has increased, this necessity has increased with it; and now that our whole manner of life is based upon exchange of products between nations, a body of legal principles to regulate international juridical relations is as supremely needed as a similar body of principles to give effect to ordinary contracts or protect ordinary property. International commerce is necessary to modern civilization; and "international commerce would be impossible if there did not exist a law which has for its object and effect to favor the international extension of human activity." [8] International trade could not be carried on as has now become necessary unless the trader could be assured that he would not be placed absolutely at the mercy of the vagaries or unknown requirements of the local law, but would find a well-established body of law to protect his rights. This body of law is the Conflict of Laws, of which an eminent German author eloquently says: "It protects and assures the

[1] Vareilles-Sommières, i, xxx.

[2] Lainé, i, 17.

[3] Weiss, Manuel, xxx.

[4] Despagnet, 19. [5] Valery, 3.

[6] Jitta, Méthode, 50 (slightly condensed).

[7] Zitelmann, i, 1.

[8] Pillet, 5.

peaceable intercourse of private persons in different nations. In this way, therefore, it maintains the threads, — which, fine as they are, still together will sustain great things, — on which the exchange of goods and of ideas, the mutual respect of nations, and therefore the maintenance of peace, depend." [1]

§ 1.4. Preliminary Topics for Investigation. — While, however, the local application of laws is the principal part of this topic, the difficulties raised cannot be fully solved without a study of certain other legal principles which underlie the solution. In considering how a conflict of laws shall be solved, it is necessary first to study with some care the nature of law; and to delimit the jurisdiction of the various laws which are alleged to apply. The first of these topics is generally dealt with under the title Jurisprudence; the second, under that of Public International Law, or the Law of Nations. It is necessary next to study the nature of Rights, of Acts, and of Remedies, since they are involved in every juridical situation, and a knowledge of their real nature is essential if we would determine the power of law over them. This study also is usually relegated to the science of Jurisprudence, and is thought quite unnecessary as a preparation for the practice of law. Finally, as rights of personal status, according to the common law, depend upon domicil, it is necessary to study with some care the international conception of domicil; again, a topic of International Law, since the meaning of the legal term is fixed by the general consent of nations, and cannot be changed at the will of a single nation.

§ 1.5. The Nature of Law as a Necessary Preliminary Study. — The necessity of studying the nature of law has already been indicated. The lawyer engaged merely in the practice of a single positive law will not find this necessary, and will even ignore its value. For him, the law is contained in the statute-books and the reports of his own state; or if he studies other sources, it is only to supplement these authoritative books with less important learning. He need not trouble himself with inquiries as to the nature of law; he is only concerned with its content. But if he is obliged to step outside the narrow circle of his own positive law, and take into consideration another law, it at once becomes necessary, in order

[1] Bar, Preface, xi.

that each should take its proper place with relation to the other, that their nature should be more fully apprehended. A consideration of the nature of law thus becomes essential; and it at once appears that the word is used, and indeed has been used and understood by every lawyer, in more than one sense. This ambiguity must be removed before the mutual relations of domestic and foreign law can be scientifically determined.

§ 1.6. The Limits of Jurisdiction as a Necessary Preliminary Study. — If we are to apply laws in space, we should first of all delimit the space to which each law is applicable; and as law-giving is a function of sovereignty, this amounts to fixing the limits of jurisdiction. So obvious a proposition seems hardly worth argument; yet few writers on the subject have included this topic in their works. The result has been that many authors have assumed without discussion and proof some untenable theory of sovereign power and extent of legislative jurisdiction upon which their respective doctrines of the Conflict of Laws have been based.

§ 1.7. Rights, Acts, and Remedies as Necessary Subjects for Preliminary Study. — If we are to judge the effect of law upon juridical relations — rights, acts, and remedies — we must first study with care the nature of these conceptions; since the effect of the law must depend upon the nature of the relation to be established. Many works on the Conflict of Laws show the detrimental effect of vagueness in conception of the nature of juridical relations. This vagueness is especially dangerous in the states of the European continent where the same word — ius, droit, Recht — serves to designate law itself and a right created by the law. When vagueness of conception is added to ambiguity of meaning, such errors may be expected as we shall find existent in the works of certain continental writers.

The study of these juridical relations is an exact and a practical study; and it seems necessary to a clear knowledge of the municipal law, as well as of the Conflict of Laws. Many lawyers are inclined to regard studies of this sort as merely academic and unpractical, to call them jurisprudence, and under that term to dismiss them as of no value in the actual practice of the profession. What has already been said must show the fallacy of such notions.

§ 1.8. Nationality and Domicil. — The subject of nationality forms a considerable part of every European treatise on Private International Law. In Weiss' monumental work, for instance, it occupies one of the five volumes. This is necessary in any system where, as in the systems of the Italian and modern French schools, personal rights are based upon nationality. The common law does not base personal rights upon nationality, but upon domicil. It is therefore entirely unnecessary, in an American book upon the Conflict of Laws, to consider nationality at all.

The common law, as will be seen, bases personal status upon the law of the domicil. It is therefore necessary in an American book to substitute the study of domicil for that of nationality.

§ 1.9. Whether Criminal Law Is Included in the Subject. — A question has been raised and much discussed whether the conflict of criminal laws is to be included in the general subject.[1] On the one hand it is argued that criminal law is a portion of the public law, and therefore properly belongs with Public rather than with Private International Law — an argument which a little savors of verbalism, for surely it is not a proper function of the Law of Nations to determine the punishability of an individual for an act done abroad. On the other side it is pointed out that the interests concerned are solely individual, and should be determined by that branch of international law which concerns individual rights. Professor Weiss follows a middle course, and segregates all questions of conflict of criminal laws and procedure under the title of "Droit international criminel." [2]

The truth is, as often happens, both sides are partly right. Those writers who have considered questions of criminal law have usually included in their discussion two distinct topics: punishment for foreign crime, and extradition. The former is clearly a question in which individual rights are chiefly concerned, and is therefore a proper topic of the Conflict of Laws. Extradition, on the other hand, is a process which depends entirely upon the existence and interpretation of treaties be-

[1] For reasons against this inclusion, see Asser, § 1, p. 5; Despagnet, 14-16; Renault, 26; Rolin, i, 16 el seq.; Zitelmann, i, 28. For reasons in favor, see Bustamante, 17; Lainé, i, 11 et seq.

[2] Traité élémentaire, xxxiii.

tween nations, and the only rights directly involved are those of the nations parties to the treaties. Furthermore, the questions which arise have no relation whatever to those considered in the Conflict of Laws. It seems, therefore, that the consideration of extradition should be left to the Law of Nations, while the topic of jurisdiction over crime should form part of the Conflict of Laws; and that course will be pursued in this work.

§ 1.10. Public International Law How Far Included. — As has been seen, some portions of public international law are necessarily included in the scope of this topic. The whole great subject of Jurisdiction has international importance, and so to a less extent has the topic Domicil.

Besides these, other topics of the Law of Nations are often included in the discussion. The subjects of Nationality and Naturalization are usually examined by European authors; [l] and this is for them a necessary study, because rights of personality, according to the codes of most European states, are based upon nationality instead of upon domicil. This doctrine has never been extended by statute to a country governed by our common law. For this reason, as well as because the topics are thoroughly discussed in works on Public International Law, they will not be examined in this work.

Another question, which is commonly included in the Law of Nations but is often also included in works on Private International Law, is the Legal Condition of Foreigners,[2] although, as has been pointed out, there is no conflict possible as to the rights of foreigners because no possible law can be applied to these rights except the law of the country in which they are enjoyed.[3] The question is one of much importance in France and other European countries where civil rights are not regularly extended to foreigners; but in England and America, where all civil rights are now and, with very few exceptions, have long been extended to foreigners, the topic is of no practical importance. It is therefore omitted entirely from our discussion.

[1] e.g., Foelix, Weiss (who devotes the first volume of his longer work to this subject), Laurent, Rolin, Fiore, Bar.

[2] Foelix, Weiss (whose second volume is devoted to this subject), Pillet, Laurent, Rolin, Fiore, Bar.

[3] Pillet, 28.

§ 1.11. Comparative Law How Far Included. — It is often difficult and sometimes impossible, in dealing with a question of the Conflict of Laws, to avoid considering the nature of one or both of the national laws between which the question arises; and some authors have in fact considered such a study as a legitimate part of the subject.[1] Thus for instance the principal "Journal of Private International Law," Clunet's, discusses comparative law as well as the Conflict of Laws.

Strictly speaking, this is no part of our subject. Yet it is often convenient and useful to point out differences in national laws, and this course will sometimes be taken in this work. But all statements of foreign law must lie under suspicion, since an author is dealing with a subject unfamiliar to him, and subject to rapid change. In the words of Bar,[2] "So quickly do laws alter in our own times, every general work upon international law must be taken, as traders say, 'with errors excepted,' and any lawyer who consults the book for the practical purpose of some particular case should be warned to apply to legal specialists for information as to the law of the country in which he happens to be interested."

§ 1.12. Sources of Private International Law. — In enumerating the sources of such a subject as the Conflict of Laws it is necessary to bear in mind that "law" for this purpose has a double meaning. The exact significance of this phrase will be examined later. For the present it is enough to speak, in language common in European works, of the theoretical and the positive law. Theoretical law, as the name indicates, is the body of principles worked out by the light of reason and by general usage, without special reference to the actual law in any particular state. Positive law is the law as actually administered in a particular country.

The sources of the theoretical law are, speaking generally, the opinions of authors and universal custom, i.e., the consensus of civilized states solving the same question in the same way. The study of the legislation and of the decisions of the courts of particular states is of importance only in so far as it results in finding a general agreement upon a proposition of law. As Foelix well says,[3] "Nations recognize no

[1] Laurent, for instance, frequently discusses and compares national laws.

[2] Preface, viii.

[3] Preface to 2d ed.

supreme judge with power to decide, according to abstract and philosophical principles of law, the disputes to which conflicts of different national laws may give rise";.and it is, therefore, useless to look for any more authoritative source of the theoretical law than will be found in the pages of standard works.

The positive law, on the other hand, is based on actual written sources; treaties, legislation, and the decisions of courts, as well as the tenets of the theoretical law.[1] It is a branch of the ordinary private law of each country, and is based upon the same sources as general law.

Besides these two kinds of law recognized by authors generally there is a third sort of law, which is neither merely theoretical nor is it the positive law of any one state. The common basis of the law of the countries of continental Europe is the Roman law. These countries have as a common element a system of law, called by us "civil law," which is equally authoritative in each, but cannot be called positive law in any one state. England and America have a similar common element, the so-called "common law." The doctrines of this system of law are authoritative in each state whose law is based upon it; and the decisions of courts of all such states are important evidences of the law. It follows, therefore, that in Europe the "jurisprudence" of each civil-law state may be treated as a source of private international law; while with us any opinion of any common-law court is equally a source of knowledge of the principles of the Conflict of Laws.

§ 1.13. The Use to Be Made of Authorities of Various Kinds. — In our law, courts and lawyers have given in general far less attention to the opinions of learned authors than to those of courts. For this preference for the decided case the reason currently given is that the opinion of a court is based upon a careful argument by counsel in a case where each was not merely striving for victory, but was also responsible for the interests of a client. Argument of counsel, in turn, was based upon a thorough and professional examination of the authorities, that is, upon the experiences of well-trained judges through several centuries. A legal author usually writes without hearing argument and without the responsibility of

[1] Rolin, i, 132, 137; Despagnet, 38.

counsel or judge. As a result, his hobbies may influence his opinion.

Following the common practice of lawyers, the greater part of this work will be based primarily upon the decisions of the courts in every common-law country.

But even in England and America the opinions of careful authors are only relatively neglected. Each carries weight according to his reputation among lawyers. Of all who have written on topics of the common law, no one in modern times stands higher than Story; and his opinions are freely cited in court. More recent, but already accepted as authoritative, is Professor Dicey's "Conflict of Laws"; and the other English and American authors are more than respectable.

To one who follows the current attitude of our courts with care, it is clear that they are tending more and more to regard the works of writers on law as of persuasive authority. Many causes contribute to this tendency. The very multiplication of jurisdictions whose law is based upon the system of the common law leads naturally to the citation in the courts of one state of the decisions of the courts of another. Such decisions are of course not precedents, authoritative statements of the particular law of the state in whose courts they are cited; their force is that only of their intrinsic merit as statements by lawyers in high judicial position of their understanding of the common law. But the great number of American judges detracts from their commanding position as expounders of legal principle; while the wide vogue of many legal treatises gives them an artificial authority as commonly used depositaries of legal knowledge, quite out of proportion to their intrinsic merits as profound or original discussions. As a result the opinions of legal authors are coming to have an influence upon current legal opinion not altogether out of proportion to the decisions of courts.[1]

The decisions of foreign courts will occasionally be cited. The reports of foreign courts are very numerous, but not easy of access to English or American lawyers. A great display of erudition might be made by citing cases from a great number of foreign publications; but this would be valueless for most readers. Fortunately almost all the foreign cases which it will be at all necessary to cite may be found in Clunet's "Journal of Private International Law," commonly cited as "Clunet," which from the beginning of its publication, in 1874, has contained at least a full abstract of every important case on our subject decided in France, and most of those in other European

[1] See on this point an article by J. H. Wigmore in 9 Ill. Law Rev. 529 (1915).

countries. Sets of this periodical are obtainable without much difficulty, and it should be possible to verify references to it in any law library of even moderate size.

Little use will be made of foreign legislation, since there will be no effort to develop the positive law of any particular foreign state.

§ 1.14. The Method of Treatment Outlined. — The method of treating the subject of Conflict of Laws in this book will be as follows:

In the introduction, the general nature of law, of legal rights, and of jurisdiction will be considered; this will be followed by a detailed theoretical study of legal rights, in which an attempt will be made to establish the time and place in which legal rights come into existence, the legal effect of acts, and the limits of merely remedial action. The remainder of the work will be devoted to a careful study of the positive common law of England and America. The analysis and arrangement of the law adopted in the theoretical study will be followed in this practical part. No claim will be made that the author has accomplished the impossible feat of collecting all the cases from common-law jurisdictions. This is more than commonly difficult in the subject of Conflict of Laws because neither the current American digest nor the latest American encyclopedia has an article on the Conflict of Laws. All that can be truly asserted is, that the author has included such cases as after a diligent search he has found applicable; and that he believes he has considered cases enough to be sure of the actual condition of authority. At the end of each chapter, where it has seemed desirable, a section has been added dealing with the foreign law on the subject covered by the chapter.

§ 1.15. Names Proposed for the Subject. — A considerable number of names have been proposed by different authors for the subject here named "Conflict of Laws." Its principles were first discussed at length in one portion of a general work on "Statutes": a word which, as will be seen, meant then what we should now call the ordinances of a local governing body, such as a city or a county. Eventually these principles came to be treated by themselves, under some name indicating conflict or collision of laws: Conflict of Statutes,[1] or Conflict of Laws.[2]

[1] Paul Voet. 2 Huberus, Story, Savigny, Bar, Dicey.

As the important aspect of the subject, at least on the continent of Europe, shifted from contrariety of local laws to difference in national laws, a tendency grew to mark the international character of the subject in its name;[1] and Private International Law [2] or some variant of it[3] came to be accepted by a majority of authors. A few exceptional names have been proposed.[4] The names suggested fall, with almost no exception, into two classes: those suggesting a conflict, and those laying stress on the international character.

§ 1.16. Criticism of Names Indicating Conflict. — Professor Harrison, in a series of striking articles in Clunet's "Journal of Private International Law," [5] says that "Conflict of Law" is "a metaphor and a very false metaphor." Bustamante also disapproves the term,[6] saying, "The laws of different sovereigns do not contend with one another for the mastery. Each one keeps within its sphere of operation, and only asserts its power in a foreign country when the law of that country commands or permits it. In practice a conflict is impossible." Bar regards the expression as too narrow.[7] "A conflict of laws is not caused by the difference of the laws which may possibly be applied to any particular case, but arises only when the legal systems of different states, differing among themselves, all claim that a particular case shall be submitted to their own jurisdiction."

On the other hand, Lainé [8] asserts that the expression is correct, that it involves no notion of struggle, but merely that where two laws are in question one must yield, and it is for the law to settle which one shall yield. He cites as analogous the similar phrase, conflict of jurisdiction.

The phrase is coming to be rather commonly applied (as it properly applies) to only one portion of the subject; that portion which determines which law of two possible laws gov-

[1] Hertius, Wächter.

[2] Foelix, Pillet, Calvo, Fiore, Zitelmann, Westlake.

[3] Civil international law: Weiss. Private law of nations: Haus. International private law: Holland, Jurisprudence.

[4] The law of foreigners (Fremdenrecht); von Putter. Extraterritorial recognition of rights; Holland's Jurisprudence. Extraterritorial law; Torres Campos. Intermunicipal law: Harrison (Clunet, vii (1880), 537). The private law of foreigners; Cimbali.

[5] Clunet, 537.

[6] p. 18.

[7] § 6, p. 7. [8] i, 9.

erns a certain relation in question. Thus Professor Pillet [1] divides his work into three parts: 1. The Condition of Foreigners; 2. The Conflict of Laws; 3. The Effect in Other Countries of Juridical Acts. This narrow use is doubtless the more correct. The phrase Conflict of Laws exactly applies to only a portion of the principles usually dealt with under the title.

§ 1.17. Criticism of Names Suggesting International Character. — The adoption of the name "private international law" was no doubt a result of the great stress laid upon nationality in the Code Napoléon. Local laws disappeared from France; all conflicts came to be differences between the laws of different nations, and therefore, to French authors, took on an international character. Any principles settling differences in national laws seemed at once to be established by some supernational power. This idea was strengthened by the fact that most of the nations with which France came into contact were governed by a single system of law, derived from that of Rome; and lawyers trained in the same system of law naturally developed almost identical principles, not only in the books they wrote, but also in their courts. This seemed to confirm the idea of an international sanction.

There was little criticism of the name until rather lately.[2] Vareilles-Sommières [3] is one of the strongest of the critics. Zitelmann says,[4] "The expression Private International Law is ill-constructed, inconvenient and ugly." [5] Jitta's view is worth detailed notice. Private International Law is in no sense, he says, a branch of the law of nations, since nations as such have no part in it. In this name, "international" is used in a different sense from its sense in the title "public international law." In the phrase "private international law" the word means having extra-national elements, as in the phrase "international society."

§ 1.18. Difficulty of Finding Appropriate Name. — The truth is, as has been seen, the subject has elements of various sorts, national and international: topics where the solution of conflicts of law is the subject of discussion, and others where the

[1] p. 27.

[2] See Bustamante, 33-35. [3] i, xv.

[4] i, 1.

[5] Méthode, 35-40.

nature of law and the bounds of international jurisdiction are in question. In the beginning, the subject was a disquisition on the nature of law and its application; then the solution of conflicts became important; finally its supreme effort is to set bounds to the jurisdiction of nations. Some portions of the law are purely international; the portion in which conflicts are considered has no international element. It is not possible therefore in a single phrase to present the whole content of this branch of the law. Even though a satisfactory, because comprehensive, phrase might be found, it would probably be open to the objection that it "hints too plainly at a particular theory of the subject." [1]

§ 1.19. Reasons for Adopting the Name "Conflict of Laws." — Since no name yet proposed is exactly accurate, it becomes necessary to use a name not quite what one would choose, or to try one's hand at inventing a better. The latter course is not at all desirable. To be accurate the term must be long and clumsy; inexcusable vices in a proper name. It is far better to use a term not in itself satisfactory, if it is concise and so sanctified by use as to have become unambiguous. "A title which is not strictly correct does little harm, so soon as it is generally known what is to be understood by it"; for "in all such questions the point is not simply absolute correctness, but also handiness." [2] In this dilemma we choose the term which came first into use, and was made familiar to Anglo-American ears by Story's great book, and by the later works of Wharton, Dicey, and Minor. One can do no better, in explaining his choice of this title, than quote the wise and witty words of Vareilles-Sommières.[3] "The warlike expression 'Conflict of Laws' is used to describe the pacific work of settling by fixed bounds the line of separation between two legislative jurisdictions. The only conflict is among the legal authors who are doing this work. Yet since the expression is consecrated by good use and is simple we may well make use of it." [4]

[1] Bar, § 6, p. 8.

[2] Bar, § 6, pp. 7, 8. [3] i, xviii re.

[4] Compare also the language used by Zitelmann, directly after his criti-

cism of the term "Internationales Privatrecht" (i, 1): "It is fixed in international usage, and so firmly settled that it cannot be misunderstood."

In opposition to the view here expressed, that accuracy of terminology is not, upon the whole, of extreme importance, see the opinion of Cimbali,[1] who has written an interesting and ingenious book to prove the contrary. The false designation of the subject, he says, has caused us to lose sight of an entire new field of study in international law: to wit, the law governing private transactions of states. He has not succeeded in convincing other jurists of the importance of his objection.

Section 2. State Defined.

§ 2.1. Legal Units. — While the law-making power is an attribute of sovereignty, it does not follow that the law is identical throughout the bounds of a single sovereign's territory. Thus in the United States there is one law of New York, another law of Louisiana, and another law of Alaska. Though the sovereign may make law as he will, it does not follow that he will have it the same in all parts of his territory. A difference may arise in two ways. As new territory is added to old, or as two countries are combined under a single sovereign, the laws of the formerly separate units continue distinct unless the sovereign by his law-making will assimilates one to the other; which he seldom does. In the second place, when new law is to be made, the sovereign frequently legislates for part only of his territories; either because he has created separate legislative bodies in the separate units of his dominions, or because a single legislative body acting throughout his dominions creates a new law for a portion only of his territory.

It must be obvious, in view of what has been said, that the extent of territory through which a given law prevails can never be in the ordinary sense a question of law. Whether the territory be domestic or foreign territory, the extent of its boundaries must be accepted as a political fact. The civilized portion of the earth is divided up into certain units of territory in each of which a particular law proper to that territory alone prevails, and that territory is for legal purposes a unit.

§ 2.2. What Determines the State. — It has been seen that the existence of separate legal units within the dominions of a single sovereign is a fact, the result of historical accidents. Division or annexation of territory, conquest and colonization, federation and decentralization all affect the extent of territory within which a single law prevails.

[1] Di una nuova denominazione del cosiddetto diritto internazionale privato.

When new territory is annexed to a sovereign's domains, this new territory may retain its ancient law, thus remaining a separate legal unit, or it may become merged with the territory of the new sovereign, forming with it a single unit. This does not necessarily depend upon the size and importance of the annexed territory. Thus when Hawaii was annexed to the United States it remained a separate legal unit; but when Wales was conquered by England it became a part of the legal unit, England. Cession of small portions of territory by rectification of boundary between contiguous states furnishes a common instance of merger of new territory into the old unit.[1]

Division of territory between two independent sovereigns results necessarily in the creation of a new legal unit, unless the territory so divided is merged into the domain of one or both sovereigns; since the laws of the two parts must necessarily diverge under the new sovereigns. Thus upon the separation of West Virginia from Virginia and upon the division of the Territory of Dakota into two states, new legal units were necessarily created.

It has been said that the size of the territory in question does not necessarily determine whether or not it shall remain a separate legal unit. Usually, of course, a small portion of territory will be merged in the state to which it is joined. One striking instance, however, constituted a unique case. The District of Columbia was formed by the cession of a few square miles of territory by the state of Maryland, and the same amount by the state of Virginia. Though these portions of territory were small, they were not annexed to a larger existing territory; there was no existing body of law into which the law of the ceded territories could merge; so long therefore as the District was so constituted, although its territory was small, it consisted of two entirely distinct legal units.[2] The portion of the District south of the Potomac was soon retroceded to Virginia, and its law became merged again in that of Virginia.

§ 2.3. Legal Units in the United States. — There cannot be two independent laws within a territory, even though that

[1] Chappell v. Jardine, 51 Conn. 64.

"Tyner v. U. S., 23 D. C. App; 324, 361.

territory be subject to the legislative jurisdiction of two independent sovereigns. The law of the territory, resulting from the legislative action of both sovereigns, is a single law. The law of a single legal unit must be one law, the one and undivided law of that territory.

The case of the United States offers a peculiar illustration of this principle. The smallest legal unit, it is clear, is the state; for the law of each state prevails throughout its territory, while no other state or portion of any state has law in all respects identical. But the law of a state comprehends not merely the common law and the statutes of the state, but also the constitution and treaties of the United States and the Acts of Congress. These are, to be sure, identical elements in the laws of all the states; but this does not mean that there is a legal unit extending throughout the United States. This should surprise us no more than the fact that the general system of the common law is a common element in the law of most of our states. In order to find a larger unit than the single state we must find a single law of that unit prevailing throughout its territory. Such a single law, passing state lines, does not exist. If we take two contiguous states of the Union we find that their laws have certain large common elements, but that they also differ from one another in many particulars. They are, therefore, separate legal units. It is perfectly correct to say, as the Pennsylvania court has said, that the law of each of the states consists of the constitution, treaties, and statutes of the United States, the constitution and statutes of the particular state, and the common law of that state.[1]

It might be argued that the relation of the states to the United States is the same, legally speaking, as that of the municipalities to the states. The answer is that while it might have been so it is not so. The Congress has, to be sure, control over a portion of the law of each state; but this is by permission of the state contained in the federal Constitution. All the remainder of the state is entirely outside the control of the United States.

§ 2.4. Municipal Ordinances. — The fact that local divisions of territory are permitted by the state in which they exist to legislate through ordinances or by-laws seems to be,

[1] Mitchell, J., in Forepaugh v. Delaware L. & W. R. R., 128 Pa. 217.

but is not, an exception to the general statement. While the municipal ordinance is applicable only to certain local transactions, it is, nevertheless, a part of the law of the state which empowers the city to pass the ordinance. The state could at any time by a statute repeal or control the ordinance; and the ordinance is interpreted by the supreme court of the state as part of its own law. In some states, to be sure, the courts outside the municipal territory do not take judicial notice of the ordinance; but that fact does not prevent the ordinance being a part of the general law of the state. In many states governed by the common law a considerable part of the legislation even of the highest legislative body in the state must be proved in the courts which, in the absence of proof, take no judicial notice of the legislation. This has always been true in England in the case of local and private acts of Parliament, which are no less a part of the law of England because the court does not take judicial notice of them. In the same way the ordinances and by-laws of local divisions of the state's territory passed under the authority and control of the state form part of the state law.

§ 2.5. Use of the Word State to Designate a Legal Unit — In the discussion up to this point the phrase legal unit has been used to designate a unit of territory having a single body of law. Unfortunately this phrase does not seem to be a proper one to use in the general discussion of the subject; principally because it will necessarily be taken in a different sense as designating a factual unit given single personality by the operation of the power of incorporation. To express the idea contained in the phrase the single word state has been used, and as a single word it is more convenient than the phrase. Unfortunately the word state also is more commonly used to designate a political rather than a legal unit. If any unambiguous word could be suggested to take the place of one of the terms heretofore used it would probably be so strange and unfamiliar in legal use as to make the effort to establish it in law a hopeless one. The word state is already often used to designate a legal unit, and the use of the word as contrasted with the word nation in our own country is universal. It is believed, therefore, that less confusion will be caused by the use of the word state in this sense than by the use of any other

term that could be found for it. In this treatise, therefore, the usage of the American Law Institute will be followed and the word state will be used in the sense of a territorial unit possessing its own particular law. For convenience, when this word is used with regard to a state of the United States, the specialized meaning of it will be indicated by capitalizing the word.

Section 3. Law Defined. § 3.1. Necessity for Determining the Nature of Law. —

Whatever meaning and scope be given to our subject, it necessarily involves, as its fundamental requirement, an accurate knowledge of the meaning of law. If we are to find a solution for a conflict of two independent laws, we must first study the nature of those laws, their method of action, the extent of their power; if we predicate an international rule, we must learn the meaning of such an international rule, and discover how it comes to control matters within the apparent jurisdiction of a single sovereign; and if we are to investigate only a particular law, it is equally necessary to know its nature and the scope of its action.

Writers on the various branches of the common law have seldom thought it necessary to define the term law, though it is of course a fundamental conception in every legal work. Blackstone does, to be sure, define law as "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong," [1] and explains in a helpful way the meaning of his terms. But if we desire further light on the meaning of law we must turn, not to treatises on the conflict of laws, or on other branches of the law, but to writers on jurisprudence and the theory of law.

Law, as will be seen, has various meanings; and as law is the direct subject of discussion in this treatise it is essential rigorously to fix its meaning. The word will be confined, in its use herein, to two of its many meanings: first, the body of precepts applied by the courts of a state, that is, the particular law of the state; second, the general system of legal thought which constitutes the legal order, the common law. It is in the first of these senses that the word is used in this Section.

[1] 1 Bl. Com. 44.

§ 3.2. Body of Principles, Standards, and Rules. — The particular law of a state is made up of several elements, some of them quite arbitrary in their operation. These accidental elements prevent the law from becoming, like the common law (see Section 4) a scientific system.

The principles which form the largest portion even of the particular law of a state are general premises of law which can be used for deduction and for analogy. Such principles are: "A conveyance of any interest in land is governed as to its validity by the law of the state of situs" "The existence of a cause of action for a tort is governed by the law of the place of wrong."

A standard is a rule which is stated as a degree of a continuously changing series to be reached, in order for a legal result to follow; the application of the standard requires therefore not merely the finding of facts but the finding of this peculiar fact, the reaching of a particular degree in events which are capable of a continuous series. Examples of standards are: a negligence is the lack of due care; a result of an act of which there was appreciable risk is proximate.

A rule means a statement of law applicable only to a narrowly defined class of cases and incapable of extension by deduction or analogy. Instances of rules are: the rule in Shelley's case; the rule that one must stop, look, and listen before crossing a railroad track; the rule that one must turn to the right to pass a vehicle coming in an opposite direction. Most statutory law is of this sort.

§ 3.3. Application by the Courts of a State. — The requirement of "particular law" that it be the law applied by the courts of the state is somewhat difficult of application when the courts of the state differ in decision. Usually there is appeal from the lower courts of a state to a highest court and the action of the highest court fixes the law. There are, however, cases even in states governed by the system of the common law where this is not true. Under the system of courts of intermediate appeal, which has been adopted in the federal judiciary and many of the state judiciaries, there is no right of appeal to the highest court on many points; and it is entirely possible that the intermediate appellate court of one district should decide the law in one way while the correspond-

ing court in another district of the state decides it in the opposite way. In the United States there is a further source of difficulty in the fact that the federal courts sitting within the state are courts equally charged with the interpretation of the state law with the so-called state courts; and the federal courts and the state courts may differ in their interpretation.[1] In such cases it must be said that the law of the state, so long as the courts differ in opinion, remains doubtful. It cannot be said that there come to be two or more legal units in the state; for the courts, however they decide the law in question, decide it as applicable through the whole territory of the state and not merely within the boundaries of a district in which there is appeal to the particular intermediate court or in a district covered by the particular federal court. Each is declaring the law for the entire state; and, their declarations being opposed, the law, in so far as the courts of the state are enforcing it, remains indefinite until it is made definite either by statute or by the yielding of one of the courts to the opinion of the other.

§ 3.4. Definition of Law. — The writers of the analytical school of jurisprudence, emphasizing the positive character of law as an expression of sovereign will, have proposed definitions which fit one portion of the law only; that is, the rules made by the legislative body.

"Law, or the law, taken indefinitely, is an abstract or collective term, which, when it means anything, can mean neither more nor less than the sum total of a number of individual laws taken together." [2] "A rule laid down for the guidance of an intelligent being by an intelligent being having power over him." [3] "The speech of him who by right commands somewhat to be done or omitted." [4] "A general rule of external human action enforced by a sovereign political authority." [5]

These definitions appear to ignore the principal element of law, the so-called "unwritten law." So important is this portion of the law, and so widespread is the distinction, that in other languages than English different terms are used to

[1] Swift v. Tyson, 16 Pet. 1 (1842).

[2] Bentham, Works, I, 148. [3] Austin, I, 88.

[4] Hobbes, Works, II, 49. [5] Holland, Jurisprudence, 11th ed., p. 42.

distinguish the two. The positive law formulated and fixed by a legislative body is called lex, loi, Gesetz; the general unwritten law is called ius, droit, Recht.

The definitions of the analytic school are properly applicable only to lex. Austin, realizing this defect, fitted the facts to his theory by assuming a tacit command by the sovereign to his judges to express the rules of law which they lay down in their decisions; thus assimilating judicial to statute law.

A second objection to these definitions, even extended (by a fiction) to cover the unwritten law, is that they all ignore that quality of the law which is absolutely characteristic: that it tends to form a single homogeneous philosophical system. Any definition of law which treats each part of it as an isolated thing, instead of as part of an embodied system, misses its nature altogether.

A third objection to these definitions is that they do not accord with the usage of those who best know the law. This objection has been so well phrased by Mr. Salmond that nothing further is necessary than to quote his words.[1]

"Most English writers have, in defining law, defined it in the concrete, instead of in the abstract sense. They have attempted to answer the question: 'What is a law?', while the true enquiry is: 'What is law?' The central idea of juridical theory is not lex but jus, not Gesetz but Recht. To this inverted and unnatural method of procedure there are two objections. In the first place, it involves a useless and embarrassing conflict with legal usage. In the mouths of lawyers the concrete significance is quite unusual. They speak habitually of law, of the law, of rules of law, of legal principles, but rarely of a law or of the laws. When they have occasion to express the concrete idea, they avoid the vague generic expression, and speak of some particular species of law — a statute, act of parliament, by-law, or rule of court. In the second place, this consideration of laws instead of law tends almost necessarily to the conclusion that statute law is the type of all law and the form to which all of it is reducible in the last analysis. It misleads inquirers by sending them to the legislature to discover the true nature and origin of law, instead of to the courts of justice. It is consequently respon-

[1] Salmond, Jurisprudence, 4th ed., p. 10.

sible for much that is inadequate and untrue in the juridical theory of English writers."

The distinction has been neatly and concisely stated by Dean Pound:[1] "Not merely laws, expressions of the popular will for the time being, but law, an expression of reason applied to the relations of man with man and of man with the state."

Writers of the historical school emphasize that sort of law which has grown up as a result of the decisions of the courts, "broadening down from precedent to precedent," and while they may deny that it has been made by the courts, they insist upon its character as the rule upon which courts proceed. Thus Thayer defines law as "a rule or standard which it is the duty of a judicial tribunal to apply and enforce." [2] Salmond's is even more concise: "The creed of the courts of justice";[3] "The body of principles recognized and applied by the state in the administration of justice." [4] Professor Gray emphasizes still further the requirement of enforcement by the courts: "The law," he says, "is composed of the rules which the courts lay down for the determination of legal rights and duties." [5]

A serious difficulty with most of these definitions is that they confuse cause and result. Courts are sworn to enforce the law, not to make it; and though it is strenuously contended that they do in fact make the law, it must be admitted at least that they make it before they enforce it.[6] As Sir Frederic Pollock well says, law is enforced by the state because it is law: it is not law merely because the state enforces it.[7] These definitions, therefore, define merely by stating one general characteristic of law. And, as will be seen, even this is not always a characteristic.

The authors whose opinions have been examined neglect, or at least too little emphasize, the one most important feature of law: that it is not a mere collection of arbitrary rules,

[1] The Judicial Office in the United States, Worcester, 1914, p. 18.

[2] Thayer, Preliminary Treatise on Evidence.

[3] Salmond, Jurisprudence, 4th ed., 13. [4] Ibid., 9.

[5] Gray, The Nature and Sources of the Law, § 191.

[6] Professor Thayer's definition is not open to this criticism.

[7] Pollock, First Book of Jurisprudence, 27.

but a body of scientific principle. That part of the law which in other languages is known as ius, Recht, droit, is a branch of practical philosophy; by which, through the use of reason and experience, legal generalizations may be made. Purity of doctrine may be lost through wrong decisions of courts, thus warping legal principle by bad precedent; but wrong decisions are after all uncommon, and the law is not seriously affected by them. The application of general principles may be inhibited by legislation: but the amount of legislation which affects ordinary private law is relatively small, and doctrine is not greatly changed by statute. Much the largest and most important part of the law, therefore, is this body of principle, or as it is almost invariably called by European writers, doctrine. The changes in principle made by legislation and by wrong decisions constitute the greater part of the peculiar local law of any jurisdiction, as distinguished from the general doctrine of the prevailing legal system.

Law, therefore, is made in part by the legislature; in part it rests upon precedent; and in great part it consists in a homogeneous, scientific, and all-embracing body of principle; and a correct definition of law in general must apply to all these varieties of law. Sir Frederic Pollock has met this necessity in a definition which may be succinctly stated as the sum of the rules binding members of the state as such.[1]

If this definition can be criticised, it is in the statement that the rules of law bind individuals. Parties are bound, not by the law, but by obligations created by the law. To confuse the law and the legal obligation is like confusing the law and the decision. "All law is concerned with the acquisition or the preservation or the restriction of rights." [2] If for the idea of rules binding a party we substitute the idea of law creating the obligation, we arrive in substance at the definition first proposed.

§ 3.6. Is There a Federal Common Law? — The organization of federal courts in each state to administer equally with the state courts the law of the state as between citizens of different states has led to a situation in which there have been two coordinate courts without a common superior. The Supreme

[1] Pollock, First Book of Jurisprudence, 7.

[2] Ulpian in Dig. 1, 3, 41.

Court of the United States in Swift v. Tyson [1] held that on ordinary questions of unwritten law, not involving statutes of the state or special doctrines concerning the title to property, the federal courts were at liberty to follow their own idea of the common law of the state, and should not feel bound by prior decisions of the state court which were in opposition to the opinion prevailing throughout the country as to the "general commercial law." This decision, unfortunate in that it unsettled the minds of lawyers as to the law and thus made it difficult to advise clients, was nevertheless quite within the right of the court; the federal court in the state was given by the Constitution of the United States as full power to declare the law as the state court. The law thus declared was of course the law of the state, but the way in which it was decided, the weight given by the court to the decisions of courts, and especially of federal courts, in other states, led lawyers to apply the name of "federal common law" to the doctrine.

This phrase, "the Federal Common Law" leads to a natural assumption that there is a law of the United States parallel to the law of the states and administered by the United States courts. This common law is supposed to be a law of the United States on almost every point which is administered by the federal courts. This led to a curious controversy [2] both of courts and of periodicals [3] as to the possibility of such a law. After the controversy had subsided legal thought went on as usual and the Supreme Court of the United States decided that there was no such thing as a law of the nation apart from the laws of the states.[4]

Section 4. The Common Law.

§ 4.1. Legal Systems. — The distinction between the two kinds of unwritten law — the law formulated by the courts,

[1] Swift v. Tyson, 16 Pet. 1 (1842). For a collection of the later authorities on this doctrine, see 5 L. R. A. 508.

[2] Swift v. Philadelphia & R. R. R., 58 Fed. 858 (1893); Murray v. Chicago & N. W. R. R., 62 Fed. 24 (1894); Swift v. Philadelphia & R. R. R., 64 Fed. 59 (1894).

[3] University Law Review, 236; 27 American Law Review, 614; 28 Chicago Legal News, 38, reprinting an editorial from the New York Law Journal, 1895, p. 1462; 52 Alb. L. J. 247; 2 Northwestern L. R. 200, 213.

[4] Western U. T. Co. v. Call Publishing Co., 181 U. S. 92, 45 L. Ed. 794, 21 Sup. 544 (1901).

and based upon their decisions, and the general body of legal precepts and legal thought known to lawyers — has already been examined. As it happens, the modern world possesses two such bodies of principle, or legal systems, one or the other of which is the basis of the law of each civilized state. The greater part of the continent of Europe has derived its legal principles from Rome; while England and the United States, together with most of the English colonies, are governed by principles of law which arose on English soil, and are known as "the Common Law."

It has been seen that each state has a particular law of its own, peculiar to it, which is known as its "common law." There is a common law of New York, and a quite distinct common law of Tennessee or of England; and this fact has already been emphasized. In what sense, then, can this general common law, this system which is accepted by all so-called common-law jurisdictions but is the particular and peculiar law of none, be called law?

Most writers, indeed, deny it the name of law. Both the analytic school, which bases law upon sovereign will, and the historical school, which bases it upon precedent, refuse to recognize as truly law this philosophical system which has neither basis. Yet the universal usage of lawyers sanctions the use of the word as applied to a body of principles which forms the doctrinal basis of a number of particular unwritten laws. The unqualified phrase "the common law" is in as good use as the qualified phrase "the common law of England" or "the common law of New York." That there is an unwritten law in the true sense common to most of the English speaking countries is recognized by every lawyer. The common law of England is not the common law of New York or of Virginia; yet the Common Law is the basis of study in every law school in America which professes to be more than a mere trade-school for local artisans, and is the foundation of the principles discussed in every legal treatise of more than local authority. Furthermore the courts of Virginia will freely cite as authority for their statement of the common law of Virginia the decisions of the courts of England and of New York. To say that the Common Law in this broader sense is not truly law would logically lead to the abolition of every law

school of more than local importance and the transfer of its students to the faculty of philosophy. No lawyer would deny that such general bodies of principle exist and are capable of scientific development; which is in accordance, in the case of each, with its own peculiar constitution. If the universal usage of experts is to fix the meaning of their terms, these systems must be allowed the name of law, though no sovereign directs their development, and no court has lent its sanction to many of their principles.

§ 4.2. Sources of the Common Law. — The common law has grown up from the reported decisions of courts, and from the thoughts and discussions of generations of lawyers. In the past it has been principally based upon such decisions. As time has gone on, however, and the number of decisions has so enormously increased, it has been less and less possible for a man even in a single well-defined topic to collect them all, still less to give proper thought and attention to them. In this subject of Conflict of Laws the author has attempted to insert in the proper place in his work all the decisions which have come to his attention, but he is well aware that he is perhaps omitting as many pertinent decisions as he is inserting, and too often he has inserted decisions without having had the time thoroughly to consider the meaning of the court, imperfectly as such meaning is often expressed. The result of this increase in the number of decisions in common-law courts in England and America is a lessened power of each decision in developing the law. If one whose life work it is to collect and study decisions finds it impossible to deal with them all, how much more impossible for the lawyer who is making himself a temporary authority on the subject while preparing his brief; and for the court, which must depend chiefly upon the brief for its knowledge of authority. More and more, therefore, the development of the law through decisions has been complemented by a development of the law through the study and experience of scholars.

For fifty years legal scholars in the university law schools have been discussing problems in each subject of the law with successive classes and have gained in this way a certain power over the factual materials of the subject in addition to the power they have obtained from a study of the authorities, and the results of the scholarship of the last fifty years have profoundly influenced the doctrines contended for by lawyers at the bar and adopted by the courts in their decisions.

During the last ten years another force has entered into our acquaintance with the principles of law. The American Law Institute has brought together for discussion of legal problems the leading experts from school, bench, and bar on the subjects it has restated. In these groups discussions have been carried on for several years; and the result has been, through a combination of scholarly and practical experience, a further development of extra-juridical knowledge of the topic.

The present author has felt entirely ready to adopt legal principles which have not the sanction of judicial decision, because he has had for many years the training of the teacher and training in discussions in the American Law Institute. This experience, however, has taught him to know his own deficiencies in knowledge of the subject far more vividly than he ever knew them before. It is believed that no statement of the law in the form of a treatise, restatement, or judicial decision can be more than a suggestion to the lawyer who is investigating the problems that actually arise in life. The importance, therefore, of so training students of law that they can think for themselves as lawyers and judges think and, starting with what is now known, can arrive truly at the solution of an unknown problem, is all the more emphasized, the greater the knowledge we obtain of the law as it is.

One may know the law so far as it has developed today; but the problem of tomorrow must be solved by one who is able to think ahead of the developed law and to deal with the new and undeveloped field in a way which will commend itself to the best lawyers.

The author makes no apology, therefore, for adding to the sources which he might be expected to draw upon for his work — the decisions of courts and statutes — his own knowledge of the subject and to a small extent, for one cannot go far in this line, his conjectures as to the future development of the law.

§ 4.3. The Principal Modern Legal Systems. — The two systems of law which between them divide the modern western world have had a quite different origin, as Dean Pound has pointed out.[1] The Roman law, having run its course as a narrow city law and reached the period of maturity, was broadened and fashioned into a systematic body of doctrine, at a time when the barbarians were established within the empire and the conception of tribal law was therefore familiar. It was then subjected to comment by the brilliant lawyers of the middle ages, who were familiar with a system under which each city and each province had its peculiar statutes and customs while at the same time they formed integral parts of the empire; the text thus interpreted was received in all the countries of continental Europe, and is now the fundamental system of law prevailing in those countries. At its first reception it was therefore a complete and systematic law.

In England, on the other hand, a law common to the realm was imposed in the twelfth century, developed in court at the outset by judges whose experience was in the old Germanic folk-courts, developed from its archaic beginnings in substantial isolation from contact with other systems of law; and it had its first experience as a system governing more than one legal unit when it was extended by colonization into America. The modern Roman law of the continent, therefore, ordinarily called the Civil Law, reached its maturity before it became the law of any now existing state. The law of England and English-speaking America, on the other hand, has developed through eight centuries and has not yet reached such maturity as to have been systematically and authoritatively stated.

The course of growth of the civil law has been from diversity toward unity. At the time of its reception in Europe it became the underlying law of every portion of the continent.[2] Until the beginning of the nineteenth century the countries of Europe were subdivided into small provinces, the law of which differed to some extent even though the basis of all those laws was the modern Roman law. Beginning, however, with the French codes there was a constant tendency during the nineteenth century to unify the law of each country.

[1]A Feudal Principle in Modern Law; International Journal of Ethics, xxv, 13.

[2] It is of course not contended that this reception was at one time in all parts of Europe.

The provincial laws of France disappeared in 1803; and since that time local laws have been altogether or to a considerable extent abolished in Holland, Belgium, Italy, Switzerland, Russia, Spain, and the German empire. The unification in each of these states was the result of a complete system of codes; this codification being rendered possible by the fact that their fundamental law was already a mature, systematic body of doctrine. This law has also been extended to the French, Dutch, Danish, Spanish, and German colonies.

The common law has had a very different history, a history which had profound effect on the development of its doctrine of conflict of laws. One of the great colonizing peoples of the later middle ages was the English; English colonies have been planted in all parts of the world, and the course of English colonization has been the settlement of colonists of English descent, at least in her colonies in the temperate zone, as not merely the dominant but the predominant stock. In the United States and Canada, in Australia and Cape Colony the English race occupied the land and fixed the speech, the law, and the habits of thought of the whole body of inhabitants. It will be seen that law is continuous so long as organized society exists. English colonists went to these colonies as politically organized bodies of men. Except, therefore, in so far as they themselves changed their law by legislation, the English law under which they had been bred remained the basis of their law under their new skies.

"When our ancestors first settled this country, they came here as English subjects; they settled on the land as English territory, constituting part of the realm of England, and of course governed by its laws; they accepted charters from the English government, conferring both political powers and civil privileges; and they never ceased to acknowledge themselves English subjects, and never ceased to claim the rights and privileges of English subjects, till the Revolution. It is not therefore, perhaps, so accurate to say that they established the laws of England here, as to say that they were subject to the laws of England. When they left one portion of its territory, they were alike subject, on their transit and when they arrived at another portion of the English territory." [l]

But these colonies, though united in their dependence on England, were entirely independent of one another; and,

[1] Shaw, J., in Com. v. Chapman, 13 Met. (Mass.) 68 (1848).

following the conception of freedom which had been fostered by the common law, each of them began by legislation of some sort to fit their law to its new surroundings. These changes of law were only in part made by the legislatures which the English government granted to its colonies. They were made also in considerable measure by such tacit changes in the unwritten law as were necessary to fit it to frontier conditions. By these processes each colony acquired a law of its own, containing in it individual peculiarities resting some on statute, some on judicial authority; while all their laws had in common a system of fundamental principles or body of doctrine which we have come to call the Common Law. The progress of the common law, therefore, has been from unity to diversity, and it is only within the last generation that there has been any decided effort to secure unity. The condition of the United States, then, with respect to its law is the same as that of Europe in the eighteenth century; and questions of the conflict of laws commonly present themselves to American lawyers as questions arising out of the conflict of local laws in different divisions of the same nation. We have, it is true, the usual number of questions arising out of conflicts with foreign laws, but we have in addition a much larger body of litigation concerning conflicts of laws within the nation. No American lawyer has suggested any important distinction between conflicts of national law and conflicts of local state law.

§ 4.4, Other Legal Systems. — In addition to these two general systems of law which divide the western world between them there are other systems of even broader influence.

As intercourse between nations grew, many customs came to be observed, boundaries of jurisdiction were established, various rights of neutrals were admitted, until at last an enlightened scholar discovered general principles underlying established observances and described the laws of peace and war. The general principles so laid down by Grotius were developed by jurists, by diplomats, by courts of arbitration, and by treaties until there has come to be an accepted body of International Law by which all nations profess to be governed.

The principles which have governed traffic on the seas may be traced to a time back of the Christian era, and have been developed and spread by the growing commerce of maritime nations. Thus developed, Admiralty forms a system of law of which the general principles are recognized in every modern nation.

In a similar way the international commerce of merchants developed a body of practice accepted by the merchants of civilized countries and applied in commercial courts. This system of law, the so-called Law Merchant, also is in its general principles accepted and recognized throughout the civilized world.

Another similar body of principles has frequently claimed the name of law — the so-called "natural law" of the seventeenth and eighteenth centuries. This is a body of principles of justice which are supposed to underlie all law and to be necessary elements in every civilized legal system. Such principles are: the duty of a subject to obey his sovereign; the duty to respect the rights of others; the rights and obligations inherent in an expression of the will; the responsibility for a caused act; and the "natural rights" to life, liberty, and the pursuit of happiness. In these principles justice finds it ideal; and it may be granted that they play a large part in modern law, and that rational deductions from them must influence the development of every law. But after all, they are only the material for law, like the laws of business or of society. They differ from principles of political law in that they lack the political element. They are addressed to the individual conscience rather than to magistrates and jurists. If we regard natural law as the expression of ideal justice, we may fairly admit that all laws tend toward it; but no principle of natural law can be regarded as law, even in the broader sense in which the common law and the civil law are such, until it is established as a principle of some actually living and working system of positive law.

That natural law as apprehended by a people and its actual civil law may become one and indistinguishable by the acceptance of a religious system as the basis of political obligation may be seen by such examples as the Chinese law, based on the philosophy of Confucius, the Hindu law, based on the Vedic religion, and Mohammedan law, based on the precepts of the Koran; but it is only by this acceptance as positive law that it becomes law at all.

On the other hand, there are still known and studied systems of law, once law in the true sense, but now dead: the laws of Hammurabi, the laws of the Medes and Persians, the laws of ancient Greece or ancient Scandinavia, laws only in the eyes of history. They are in no sense a body of principles received as the basis of social obligation, though they were once just that.

The "Law of Moses" is not yet obsolete. In several states Jews are governed in many particulars by their own law; and this is particularly important in the case of Rabbinical marriages which are recognized as valid under the Jewish law.

§ 4.6. Acceptance of a Legal System. — What then differentiates a system of law truly so-called but used in the broader sense from law in an improper sense; law that has been, or that never was; law that is dead or that is not yet living? What creates law as a real living system? It is clearly the reception of that system as the basis of law. If it is accepted in one jurisdiction only it becomes the positive law of that jurisdiction; if in more, a legal system. There was no system of Roman law, as distinguished from the particular law of Rome, at least until two emperors divided the allegiance of the Roman world; and no "civil law" in the proper sense until it was received in the middle ages in the Empire, in France, and in Spain as the systematic basis of their individual laws. The common law (as distinguished from the particular law of England) came into existence when it became the common systematic basis of the law of the colonies. International law became law when its principles were accepted by the civilized nations of Europe as a part of their municipal laws. Maritime law came to exist as a system when all the maritime nations of Europe received its principles as establishing the laws applied in their courts of admiralty. These legal systems, then, live as law because they have been received as law in several existing states.

But though in these cases the same legal system — the same law — is received in several states, it is necessarily distinct from the law of each of these states, since such laws are not the same; and in each state therefore the local law may, and practically must, vary to some extent from the accepted general system. The common law is received in Massachusetts as the basis of its law; but the positive law of Massachusetts, by mistake or design, is gradually differentiated from it: "So shakes the needle and so stands the pole," as stands the general system of the common law to the unwritten law of a particular state. The common law is one law; the law of Massachusetts, even her unwritten law, is another. To confuse the two is easy, since one is based upon the other, and this accounts for the fact that the difference is often not realized. Indeed there is an easily recognizable tendency in the judicial law of each American state to approach again the common law, and reach unity not by legislation but by means of judicial decisions, correcting former erroneous decisions and bringing the unwritten law of the state into harmony with that of other states.

While the general system exists apart from positive law, the application of its principles is the work of a tribunal which, being human, may err; and the common law, or international law, being mistakenly applied, the positive law of the state becomes different from the basic system. We may then say, if we please, that the common law of New York, or the international law of the United States, differs from that of other states. It must be obvious that neither by legislative nor by judicial legislation can the basic system of law be changed.[1] But of course the reception of a particular system of law may be intentionally withdrawn, as for instance when in Texas the common law was substituted for the civil law as the basis of its law. This fact is of especial interest in connection with international law. This law is received by all civilized sovereigns because its reception and substantial observance is a condition of admission to the "family of nations," and nations, like individuals, desire to be in good society. But while the general reception of law will for that reason not be canceled by a state, its reception with regard to a single other state may be withdrawn, and as a result its conduct toward that state restrained by no legal limitation. This condition is war. But while hostile nations have no rights and obligations as to one another, they continue to possess all the rights which international law gives them

[1] That such a system of law does change is obvious, and cannot be denied. The method of such change will be indicated infra, § 5.

against neutral nations, and they cannot escape their obligations toward neutral nations; hence the law of neutrality. Such being the legal nature of war, it will continue just so long as nations permit one nation to throw off the obligations of international law as to another nation without forfeiting its place in the family of nations; and it will continue no longer than such partial repudiation of law is permitted. But while a nation may withdraw its acceptance of a system of law, and among others its acceptance of the system of international law, yet the general withdrawal of its acceptance of that system would put it outside the pale of civilized states. No nation, therefore, is likely so to withdraw its acceptance of the principles of international law. Without so doing a nation has no right by reason of erroneous decisions of courts or by reason of peculiar legislation to alter those principles to its own advantage, even though it is professing to alter its own law only. The importance of this observation will be seen in examining the question of international jurisdiction. The legal bounds of a nation's power are fixed by the accepted law of nations. If they are so fixed, no nation claiming to belong to the family of civilized states can by any means extend or alter the legal exercise of its own powers to the prejudice of other states. While, therefore, the question of legal jurisdiction is a question to be determined by the law treated as a whole, it cannot properly be settled either by legislation or by decision, but must be left for settlement to the body of doctrine which the particular state in question has accepted in accepting the general principles of international law.

§ 4.6. The Part Played by Judicial Decisions. — Very different views have been expressed as to the part played in the making or change of law by the decisions of courts. The persuasive power of a decision differs greatly in different countries. It was the highest of all in Spain, before the revolution; the decision, in order to be valid as such, must be approved and promulgated by the minister of justice, and when so approved it had the force of statute. Almost as conclusive is the effect given to a decision of the highest court, the House of Lords, in England, where in theory the decision must stand as law itself unchangeable except by legislation, although in fact many decisions of the House of Lords have been so distinguished and narrowed by explanations as to be practically overruled.

The decision of one of the lower courts in England is in theory equally binding upon the same court; and yet there have been many cases where the decision of a court has been disregarded by a court of coordinate jurisdiction; and there are even cases in England where an inferior court disregarded the decision of a superior court. In this country the mere fact of multiplication of courts in the different states and the general recognition of an underlying system of law common to all states have caused in practice far less conclusive force to be allowed to the decisions of courts than is the case in England. The court of a particular state receives as persuasive authority the decisions of courts in other states; and not every court distinguishes sharply between its own decisions and those of other states. As a result we in the United States have almost reached the condition of affairs which prevails in France, Germany, and Italy; where rules of law are accepted as fixed by precedent only when there is a great and practically unanimous body of decision behind them. A proposition supported by a single decision stands a fair chance of being overruled if the court can be convinced of its unsoundness.

In France, Austria, and Italy, and in the European states generally, the decisions of courts are theoretically regarded as not affecting the law at all; or at least as establishing a proposition of law only when supported by a considerable body of jurisprudence. The method of reporting decisions in several of these countries adds plausibility to this theory, by omitting from the printed report all mention of the decisions which had been cited to and by the court in argument. The real fact as to the use made of decisions is not accurately represented by the form of the report; for the report usually contains only the judgment and not the reasoning upon which the judgment proceeds, or at most the reasoning is briefly indicated. When occasionally the reasons of the court are reported in full they are found to be based in large measure on previous decisions. The mere fact that decisions are reported in vast numbers in the European states, and are eagerly purchased by lawyers, indicates their practical value in the determination of the law.

It is the prevailing fashion among thinking lawyers, learned in the common law, to assert that under guise of discovering legal propositions the judges of common-law courts make the law which they purport to find. This view has, perhaps, been expressed most clearly and forcibly by Professor Gray.[1] There are various reasons, however, for declining to accept this doctrine even where it is confined to the common law; and as we have seen, the force of precedent differs in degree only and not in kind in the common-law and in the civil-law courts. Among the reasons for discarding the view that the decision of a court in and of itself makes law are the following:

First, the function of changing the law has never been committed by the sovereign to the judge, and consciously to make a change in the law would be a usurpation on the part of the judge. This usurpation the judges strenuously deny, and have claimed that in no case were they exercising the power of changing the substantive law. If then they make law they do it unconsciously, by inadvertence, and contrary to their legal duty and their official oath.

Second, if the judge makes the law he declares, then the law did not exist at the commission of the alleged wrong with which he is dealing in the litigation. In that case, if he decides that a right existed he is creating the right, subsequently to the doing of the act, and the defendant is held for a wrong which was not a wrong at the time he did it. This is contrary to all conceptions of justice.

Third, states are constantly overruling their own decisions. A striking instance of this was the course of decision in Michigan on the question of exemplary damages. For several years the court held alternately that exemplary damages could, and that they could not be recovered, each decision being apparently made on the faith of the last published decision, while a later unpublished decision the other way was overlooked.[2] If we assume that each decision made the law, we have the singular result that the law was changed

[1] Gray, Nature and Sources of Law, §§ 191, 229-231. "It has been sometimes said that the Law is composed of two parts, — legislative law and judge-made law, but, in truth, all the Law is judge-made law. The shape in which a statute is imposed on the community as a guide for conduct is that statute as interpreted by the courts." Ibid., § 276.

[2] See 1 Sedg. Dam. (9th ed.), § 358, note 61.

in Michigan backwards and forwards a dozen times within a few years.

Fourth, several cases are known of courts having coordinate jurisdiction to declare the law of a particular state and without a common superior. For instance, for several years after the independence of the state of Georgia, there were two supreme courts, one sitting in the Eastern and the other in the Western half of the state, each declaring the law of the whole state; for there was only one law of Georgia, that state being one and not two legal units. If, as must have happened, in a term of years, contradictory decisions were rendered, it would be impossible to find any existing law of Georgia made by the courts. Even today this condition prevails in every state of the Union; for the courts of a state and the federal courts sitting in the state have coordinate jurisdiction to declare the law, and there is no superior court of appeal. The result is, in many cases, a difference of opinion between the state court and the federal court sitting in the state as to the law of the state. This condition is quite incompatible with the court making the law.[1]

§ 4.7. The Causes of Change in the Unwritten Law. — The problem in this country is made more difficult because it is supposed to be bound up with the question of whether the common law changes. It is assumed by most authorities that if the judges did not make, but discovered the law, then in the absence of legislation the law must remain what it has always been, and therefore, by a process of backward projection, it is argued that unless the courts changed the law the law must have been the same in 1200 that it is today. This line of reasoning, which has seemed convincing to many persons, is quite obviously a mere begging of the question. It is certain that the common law changes; not merely the common law of a particular jurisdiction, but the common-law system in general. This must be true, or the science of law, differing from all other sciences, would be unprogressive. The law of today must of course be better than that of seven centuries ago, more in accordance with the general principles of justice, more in accordance with the needs of the present age, more humane, more flexible, and more complex. There

[1] See Swift v. Tyson, 16 Pet. 1 (1842).

are many sources of this change of law, of which, it is true, the decisions of the courts are one and in many ways the most important. The law of a given time must be taken to be the body of principles which is accepted by the legal profession, whatever that profession may be; and it will be agreed that the judges have a preponderating share in fixing the opinion of the profession. They are, however, not the sole element in forming this opinion. Legal thinkers who are not judges have at all times played a considerable part. The teachers of law today have an increasing influence, and one which is comparable in degree with the part played by the judges, in the development of the law; and their power to mould professional opinion is likely to increase in the future more rapidly than that of the judges. The expressed opinions of writers on the law also is powerful in the moulding of professional opinion, and the argument of practicing lawyers is of great persuasive effect in determining the course of decision. In all these ways, then, professional opinion is being influenced, and thus the nature of the unwritten law is being changed.

The same causes lead to change of the unwritten law in Europe. In England the opinion of the court has a much greater effect and that of teachers of law much less than in this country. In France and Germany the reverse is true. The teachers and writers influence the development of the law to a greater extent than the judges. But the differences in all these countries are merely in degree. It is generally true that the unwritten law changes with the change of the professional opinion about it, and that the decisions of the courts play sometimes a preponderant, always an important, part in the development of this professional opinion.

§ 4.8. The Part Played by Equity. — The development of law by means of equity has given rise to much discussion and to considerable difficulty. Equity may mean one of two things: — either the modification of rights by reason of other conflicting rights, or the administration by a separate tribunal, or at least as a separate judicial act, of a distinct system of law dealing with rights in a different way from the legal way.

In the first meaning of the word, equity is of course a universal fact, present, necessarily, in all law; for all civilized law, at least, must have some method of satisfying conflicting rights by reaching a reconciliatory result in a particular case. In this sense of the term equity is simply one of the principles of law, working in a regular way beside the other principles; and there is no separate body of doctrine involved. In the second sense, which is the sense in which the word is used in the common law, we meet with a difficulty. If equity as a separate body of doctrine forms its own principles and regulates rights in its own way, it is perfectly possible to have a legal right in A which conflicts with an equitable right in B, and with no possible solution of the conflict. This has seemed to be the case in the common-law system, where the exercise of legal rights is enjoined in equity on the ground that the equitable rights are opposed to the legal rights; and yet if the enjoined party violates the injunction, he may enforce his legal right in a court of law. If this seeming condition is a true one, we are at once presented with an insurmountable difficulty in dealing with foreign law; for if the person possessed of the legal right appears in a foreign state demanding the recognition and enforcement of his right and the person having the equitable right appears and demands the same thing, a dilemma is presented to the foreign court which it has no means of solving.

It is submitted that the commonly received explanation of the distinction between law and equity in common-law jurisdictions is inaccurate. It is true that in each of those jurisdictions the theory upon which courts proceed is the theory of separate and independent systems of right. The court of law regards the equitable right as subordinate to the legal right, while the court of equity takes the opposite view. The view of the court of law has this apparent support, that the party who is willing to ignore the equitable decree and take his punishment therefor, may enforce his legal right in the teeth of the counter-right in equity. It is clear, however, that there cannot be two separate and distinct laws prevailing in the same place at the same time; and therefore in fact, whatever may be the theory of the courts, one of the conflicting rights must be valid and the other invalid. It is submitted that the true explanation of the difficulty is that the equitable right is the prevailing one, that the legal right represents a prior condition of the law, before the unwritten law was changed by the acceptance on the part of the profession of the equitable doctrines as law; that the profession has so accepted equity as a part of the law within the last four centuries, and that as a result a court investigating the law of a foreign state should take the equity doctrine as determining rights there created. Such authority as there is on the point is to this effect, and this opinion is fortified by the fact that where, as in many states, law and equity are fused, the resulting body of doctrine includes the doctrines formerly administered in the court of equity. The part of equity, therefore, in the development of the common-law system is that of the progressive element, continually modifying ancient doctrine which has become outgrown and obstructive of justice.

§ 4.9. Codification. — The genius of the civil law of Europe is such that it lends itself readily to codification, and for the last century and a quarter almost every European state has codified its law. The first important example was the Napoleonic Codes of 1803. These were adopted largely to put an end to the differences between the provincial laws in the different provinces of France, and they have resulted in a very acceptable general body of law governing the entire nation. The codes have been prepared by commissions sitting each for several years and reducing the law to be codified to a scientific body of dogmatic principles which are then applied by the courts as principles which are, to be sure, unchangeable, but are capable of development and of application both by deduction and by analogy. An example of such codification undertaken for similar reasons is the German Civil Code of 1896. This was also adopted after long and careful consideration and criticism, and like the other codes presents dogmatic principles developed by decisions.

Attempts have been made, but heretofore without success, to codify by the joint action of civilized states the Law of Nations and the Conflict of Laws or Private International Law. Such efforts may probably have some success in the future but the difficulty of securing the joint action of all states on a dogmatic statement of these branches of law is almost insuperable.

§ 4.10. Restatement of the Law. — The genius of the common law does not lend itself to codification. The common law itself is too flexible and too subject to change with the changing necessities of the people to be comfortably confined in dogmatic form. The increasing mass of decisions, however, in America has called for some palliative, and in 1923 the American Law Institute was founded for the purpose of restating the effect of the law as it was found to be at the time of restatement. This restatement has not the force of a code; it is rather to be regarded as a statement by the highest court of a state would be regarded by the lawyers of that state. In other words, it is presumably a true statement of the law. It is subject to contradiction in any state by authority in that state to the contrary; it is subject to change by statute; and it is subject to development and change with the lapse of time and a change in the life and the needs of the people.

The Restatement of the Conflict of Laws by the American Law Institute is accepted in this treatise as representing the common law on the subject and this treatise is so arranged as to form a commentary to the Restatement section by section.

§ 4.11. Law and the Social Order. — It is obvious that law must have certain general characteristics which distinguish it from other things of a similar nature. Thus, law is distinguished both from the principles of natural science and from the rules of ethics in that it is a social or political rule. The use of the words to describe the orderly sequence of natural events is foreign to the lawyers' use. We speak of natural law, the law of gravitation, Mendel's law; but however correct this use may be, it is not one which concerns lawyers. To them the only law is that of politically organized society. Such law, in general, conforms to natural requirements. No civilized society would fail to protect human agreements or secure the sanctity of the person. To this extent, there are no doubt rules of natural law, so-called, which somewhat constrain the action of the law-giver. They are, notwithstanding, quite consistent with his absolute free will, and the result of his legislation contains no element which can be said to be natural law rather than law made by sovereign power. In the same way the rules of ethics greatly influence the action of the law-giver; no civilized state could maintain a system of law which was generally agreed to be immoral. Yet, on the other hand, it is not a function of law to sustain ethical requirements. Law does not and cannot purport to make and keep men good; a law which should attempt to do so would break down in the effort. This was tried by the Massachusetts Bay colony, to a slight extent; but the attempt was soon found to be beyond the power of social law, and the maintenance of a moral standard was relegated to the church, where it belongs. Law has a social, not a religious object. Such immoral acts as are also anti-social it should restrain; but the restraint is in the interest of society, not directly in the interest of morality. A law that should promote immorality would be a bad law; but a law that failed to promote morality would not necessarily be bad. Law, in short, is unmoral; it must not be immoral.

That right and wrong are subject to rules capable of discovery by thought and experience few persons would deny; and that these rules bear some analogy to true law is clear. Fashionable society also has its rules fixed by usage and courtesy, and these rules also are discoverable by thought and experience. In the mind of an inexact or loose-thinking lawyer a confusion may arise between these rules and the principles of law properly so-called. Such confusion was shown by Lord Coleridge, C. J., in the case of Regina v. Instan,[1] where he said: "Every legal duty is founded on a moral obligation." But, as has been seen, this is an error. Law as the lawyer knows it is absolutely distinct from any rule of conduct based on a moral ground no matter how strong.

The function of law is a social one: to make it possible for society to exist by setting bounds to the complete imposition of his will by each member of society upon other members. No organized society could exist if each member of society were allowed to do absolutely as he pleased; unless indeed no two people wished to have or to do the same things, which is impossible. In any collection of human beings more men than one desire the same thing; wills must clash; and some reconciliation of desires must be found. There are only two possible methods of reconciliation: force, and law. Either the will of the physically strongest, or of the mentally alert-

[1] Regina v. Instan, [1893] 1 Q. B. 450.

est, must prevail — the way of the beast; or conflicting wills must be restrained by law — the way of organized human society.

Law, then, is a social machine for forcing all members of society to live together in peace. To perform this function, law must have certain characteristics, now to be considered.

§ 4.12. The Characteristics of Law. — An essential characteristic of law is its generality; since justice requires equality of treatment for all persons, and this means generality. It is, as has been seen, a body of general principles, not a collection of special commands. A set of rules for the action of a particular person would lack this character of generality. Thus, the decision and judgment of a court, determining a particular controversy and laying an order upon one party to it, lacks this element and can in no sense be regarded as in itself law, whether it be the doom of an ancient monarch, the decision of a popular court, or the judgment of a modern judicial tribunal. Law being a general principle applying indifferently to all cases which in the future can arise under it, the decision of a court can be law only if the court has power in its decision to lay down binding rules for future conduct; a power which is not inherent in judicial action as such. Law operates by extending its power over acts done throughout the territory within its jurisdiction and creating out of those acts new rights and obligations. In order thus to act there must be a general rule existing previously to the acts and ready to create the resultant rights. Unless the rules of law are thus general they can have no reference to future action.

Another characteristic of law is universality. It is unthinkable in a civilized country that any act should fall outside of the domain of law. If law be regarded as a command, then every act done must either be permitted or forbidden. If law be regarded as a right-producing principle, then every act must in accordance with the law change or not change existing rights.

"No plain or valley, no nook or corner, to which the dominion of man has extended itself, is without some law of the land. Indeed, law is the breath of dominion." So said Judge Grosscup, in Swift v. Philadelphia & Reading Railroad.[1] A hiatus or vacuum in the law would mean anarchy.

[1] 64 Fed. 59 (1894).

It follows also that not only must the law extend over the whole territory subject to it and apply to every act done there, but only one law can so apply. If two laws were present at the same time and in the same place upon the same subject we should also have a condition of anarchy. By its very nature law must apply to everything and must exclusively apply to everything within the boundary of its jurisdiction.

Another characteristic of law is continuity. "From the day of its promulgation to the day of its repeal the law must always be heard and obeyed." [1]

There can be no break or interregnum in law. From the time law comes into existence with the first felt corporateness of a primitive people, it must last until the final disappearance of human society. Once created, it persists until a change takes place, and when changed it continues in such changed condition until the next change, and so on forever. Conquest or colonization is impotent to bring law to an end; in spite of change of constitution, the law continues unchanged until the new sovereign by a legislative act creates a change. The law of today must remain the law of tomorrow, except for such changes as may be made in the law by legislative action before tomorrow.

The social need of continuity in law is most clearly felt because society needs to know the law in advance of judicial action upon it. In order that law may help rather than hinder the carrying on of the work of society it must be possible for every person, of his own knowledge or by the help of others' knowledge, to discover the application of the law to any contemplated act. He must be in some way secured against unexpected legal consequences of his actions. Business could not go on, industry could not be maintained unless it were possible for the producer or the merchant to learn how he could conform his activities to the law. For this purpose it must be possible for one learned in the law to speak with authority on the application of law to the proposed acts and to predict with reasonable degree of certainty the decision of courts in case the legality of the acts should be called in question. If there were any discontinuity in the law, — if, for instance, a judicial tribunal had the power to change the law as it liked, or the dis-

[1] Pillet in Clunet, xxi, 417.

cretion as to the application of law to the facts, — the client would seek advice in vain, for counsel however learned could only vaguely guess what the law would be at the time of possible future litigation. Predictability of judicial decision is necessary if the law is to serve its true social purpose; and this predictability is possible only if the law is continuous.

Justice also is a necessary characteristic of a successful system of law. It is impossible at every moment to depend upon brute force for the administration and enforcement of law. No tyrant could under conditions of civilized life rule so absolutely as to be able to administer his government without the voluntary submission of the majority; and this submission involves the acceptance of his ordinary private law as upon the whole satisfying the ethical sense of the community. This ethical sense is indeed the result of education as well as of experience, and its standards may be intentionally fixed by education; but whatever the ethical standards of a people may be, their law, in order to be acceptable and to be acquiesced in by the mass of the people, must conform in general to those ethical standards.

Predictability also is necessary if law is to perform its proper functions. The principal function of law is not the settling of disputes; it is rather the prevention of disputes by restraining the wills of men within the bounds which it sets for their action. The most useful, as well as the most profitable, function of a lawyer is not to extricate his client from a difficulty but to advise him how to avoid it. The legal profession, if it is to perform its social function, must be prepared to advise clients as to the legal quality of contemplated acts; and to assure them against legal liability if the advice is followed.

In order that it may be possible, then, for the law to function, it should be predictable; that is, in a case not previously passed on by a court, competent counsel should be able to predict what the action of a court in the case will be. Predictability can be secured only by a union of regularity, system, and reason.

a. Regularity. An administrative tribunal may guess at the "very right" of the particular case before it; but since each man's reaction to the idea of right is subjective to himself, it is practically impossible in a given case to predict the reaction of some as yet undetermined body of men to a given state of fact. To be predictable, therefore, the result of judicial action must not lie in mere judicial discretion. That dictum of the fourteenth-century judge, that law is the will of the judges, his more experienced colleague at once, corrected by pointing out a criterion of the decision: "By no means; it is the rule of right." [1] The court must have a rule to guide it, or its judgment, being merely discretionary, will be impredictable.

b. System. It is not enough, however, that law should be regular; for a merely regular law fails to meet the needs of modern civilization. A mass of rules is necessarily limited in its application; no legislator can formulate rules which will cover all future cases. Law must have the power of extension to novel facts. An example of this need occurred when streetcars were first introduced. A street-car line between Charles-town and Boston was opened about 1856, at a time when one man enjoyed a monopoly of public conveyance between the cities by omnibus and dray. The drays thereupon drove slowly along the tracks of the street-cars, while the busses hurried by. No formulated rule applied to the case, for it could not have been foreseen and guarded against. If the law had been regular but non-systematic, like the folk-law that preceded the common law, the wrong lacking a formal remedy, must have been unredressed. But the common law was systematic; that is, it consisted of a system of thought based upon principles which covered every possible occurrence. Every human act was either permitted or forbidden; every act either changed or left unchanged existing rights. Under this system of rights the act of a drayman in delaying the street-car was either forbidden or permitted by the law, whether the rule that determined the answer had ever been formulated or not; and the court was able to say that legal principle forbade the act of the drayman.[2]

§ 4.13. Certainty and Flexibility of Law. — Two opposing qualities are essential in law; and the history of our legal order is the history of the reconciliation of these two characteristics.

The first is certainty. The characteristics considered in the

[1] Langbridge's Case, Y. B. 19 Ed. 3, 375 (1345).

[2] Com. v. Temple, 14 Gray, 69 (Mass. 1859).

preceding section call above all for certainty: that every man may be treated equally and therefore justly; that the law may have a sure remedy for every wrong; and that the law may be predictable so as to be properly administered by those who advise their clients. Nevertheless, to perform its function the law must also be flexible; it must have the capacity of change and growth. There are two reasons for this: the constant change in the conception of justice, and the constant change in the ways of civilization. Our law was formed at a time when regularity was almost the only recognized element of justice, and when disputes about land titles formed the chief business of the courts. The system of law then adopted by the courts, and the rules then formulated, would have furnished an impossible machine for securing the peace of a twentieth-century state. While the same system of law prevails it has been so fundamentally changed in the seven centuries of its existence that it has little in common with the law of the Plantagenets but technique and machinery. Its growth has been accomplished in two ways.

a. By legislation. Conscious change takes the form of legislation. Legislative changes were at first seldom made; but as time went on they have grown vastly more frequent. Most of the mass of modern legislation, to be sure, does not change the law; it deals principally with the establishment and the administration of government. There is, however, a considerable amount of legislative change in the law. This has too often been ignorant and ill-considered, and has interfered with the justice and predictability of the law; but there is now a gratifying increase in the care and wisdom with which legislative changes are made. Well-considered legislation is a prompter improver of the law than the slower operation of legal opinion; and when it is based, as that is, on knowledge and experience it is the most powerful means of legal improvement.

b. By change in legal opinion. Change in our law has been accomplished in the past almost entirely by a slow and unconscious change in the understanding of the law by courts and lawyers. Each generation of men has its own mental as well as physical ways, its own solution of the problems of life, its own criteria of justice and social need; and these mental characteristics necessarily color its understanding of its legal system. Not only the mental equipment of the judges, but even more that of the bar, reacts upon the law. Particularly today, when the courts are overburdened with questions for decision, they are greatly influenced by argument of counsel and by the writings of wise and learned lawyers; the ideas of able authors and counsel become embodied in the decisions of the courts; and these decisions are of almost compelling influence on the development of law. In this way for seven centuries the law has been growing, so as better to fulfill the needs of a changing society; and this principle of growth is as vigorous as ever in our law. The same method of growth is equally vigorous in other civilized systems of law.

The whole history, then, of law is the history of alternate efforts to render the law more certain and to render it more flexible. To use the system more remarkably elaborated by Dean Pound,[1] to a period of strict law, where the one purpose of law is to secure exactness and certainty, succeeds a period of equity and natural law in which the purpose is to infuse law with an element of justice and morality and therefore to temper the exactness of the strict law with a flexibility that may enable it to perform its function more justly. This in turn is succeeded by a period of maturity in which the flexibility of the period of equity and natural law is to a degree restrained by legalizing the broadness of equitable relief and bringing that too under precepts consisting of standards and principles so as to make it more certain. It is to be noticed that in this period the law does not go back to its earlier exactness, but remains with a more flexible content than the strict law, although it has gained in certainty over the period of natural law. This in turn is followed by a period in which again the freer administration of law is emphasized; a period in which we now live, where the rules and principles of law cause impatience if too fixed in their application, and a desire exists to individualize their operation. This is a period where the extreme flexibility of the period of equity and natural law is not reached, for each successive period has left its touch on the law. It is further to be noted that not only do periods succeed each other in which the elements of certainty or flexibility are characteristically emphasized, but also that at

[1] Outline of Lectures on Jurisprudence, 4th ed., 22 et seq.

any period of the law there are some branches where flexibility is sought and others where certainty is desired. In all changes of the law, for instance, the law of property has remained a law of rules, that is a law where certainty has been emphasized. On the other hand, in all ages of the law the public law has been flexible and its requirements have always been subject to changing ideas of justice and to changing experiences of government. Between these two poles of certainty and flexibility other branches of the law in more or less degree call for the application of one or other of these characteristics.

Section 5. Legal Nature of Conflict of Laws. § 5.1. No International Sanction. — It is sometimes urged that the doctrines of the Conflict of Laws have an international sanction, binding to some extent upon the various states. This view is not today seriously held and cannot be sustained. It has never been adopted by any common-law authority. Nevertheless, there has been a disposition to assume in the case of the rules of the Conflict of Laws that they have an international source and that in the nature of things they should be the same throughout the world. The title often given to the subject, Private International Law, lends itself to this conception of the source of the law; and the result has been an attempt by conference and treaty to bring principles of the subject applied in different countries into agreement. The principles of this subject, however, have grown up as part of the common law, and the doctrines of foreign law have influenced them only as they have been considered by the authors of some of the treatises on the subject, notably Story and Westlake. The courts have developed the subject, as they have developed any other topic of the common law, by the course of decision; and in the few cases where the decision of the courts has been influenced by a doctrine foreign to the common law the courts have within a comparatively short tune eliminated most traces of the foreign doctrine. A good example of this is the doctrine of the renvoi which was imported into the English law, but has been rejected or is in course of being rejected. The principles of the subject prevailing in civil-law countries on such important topics as Jurisdiction, Status, Contracts, and Succession, are in many points essentially different from those of the common law; and there is nothing to be gained by the citation of foreign authority as persuasive to the court in arriving at its decision.

§ 5.2. Personal and Territorial Law. — Two conceptions as to the Nature of Law have divided the modern world. (1) That law is the personal right of someone whose law it is; the native of some country or the domiciliary of some place whose law is to extend to the protection of the person wherever he goes. (2) That the law is territorial, that there can be no law in a particular state except the law of that state, and therefore that a foreigner coming into that state can by no means bring with him his personal law even for his own protection; the foreigner coming in is subject to the law of the state as much as the nationals of the state. The conception of the common law has always been the conception of a territorial law. No law is administered as such by the courts except the territorial law. In some European countries the conception is otherwise, and it is believed that the law personal to a human being may accompany him and compete for control with the territorial law of the place where he acts. Upon an argument based on the European theory of law being made, Sir Gorell Barnes, President of the Probate Division, said: "The argument appears to me to be a medieval one. This country, differing in that respect from other countries, has repudiated the doctrine you are contending for, that a man carries about with him his only personal law." [1]

§ 5.3. Conflict of Laws Part of the Common Law. — It follows from the principle that Conflict of Laws is part of the law of each state, that it is subject to the same development in each state as any other branch of the law. While the general principles of the common law as developed by the states and as discussed in this treatise, are like the principles of the common law in force in every common-law state, yet, like any principles of the common law, they are subject to change either by legislation, by judicial decision or by any of the other forces that change the particular law of a state. The relation of the statements of law in this treatise to the particular law of Conflict of Laws in any state is precisely the same as the relation of general statements in any treatise on the law to

[1] Chetti v. Chetti, [1909] P. 67, 69.

the particular law of any particular state on the point; that is, the statement is probably true of the particular law of any state but it is possible that the law of any particular state may differ. If the difference in law is expressed in a decision it should be noted in this treatise in the proper place. If it is due to a statute, this treatise does not undertake an exhaustive examination of statutes and therefore the statutes of the particular state in question should be examined. There is, however, this to be said; that statutes altering the law of a particular state within the domain of the Conflict of Laws are very much less common then they are in most topics of the law.

§ 5.4. Foreign Law as a Fact in a Case. — It has already been seen that Conflict of Laws is part of the law of the forum. It is quite obvious that since the only law that can be applicable in a state is the law of that state, no law of a foreign state can have there the force of law. If, therefore, the Conflict of Laws of the state provides that a question at issue shall be determined in accordance with the foreign law, that means that it shall be determined by the court acting solely under its own law, and that the terms of the foreign law constitute a fact to be considered in the determination of the case.

If, then, the law of a state says that a question, for instance the succession to movables, is to be determined in accordance with the foreign law, this does not mean that the foreign law will be applied as law but that those provisions of the foreign law indicated by the rule will be used as facts in the devolution of the estate according to the law of the forum. The law of the forum is the only law that prevails as such. The foreign law is a fact in the transaction.

Topic 2. Rules for the Application of Conflict of Laws

Section 6. Comity.

§ 6.1. Nature of Comity. — The word comity has come in usage to be a very ambiguous term, the meaning of which in a particular case must be carefully examined. In its most general usage it is employed merely as the title of the subject commonly called the Conflict of Laws; so that the phrase, "a foreign right is recognized by comity," means simply that by the Conflict of Laws recognition is given to it. It has, however, been given a much more restricted meaning and one which in practice has been unfortunate in several cases. In Hilton v. Guyot[1] it was held that a valid French judgment would not be enforced in the United States because it was found France would not enforce judgments of the United States. In Union Securities Co. v. Adams [2] it was held that a valid mortgage lien on personal property created in Texas would not be recognized in Wyoming as against a purchaser from a mortgagor although it had already been held by the same court that in the ordinary case, such a foreign mortgage lien would be upheld in the state, the reason being that a foreign right is recognized only by comity and that comity is reciprocity and that Texas refused to recognize similar rights created in other states.

The error in these decisions lies in the supposition that the courts are accepting the doctrines of Conflict of Laws by comity rather than the legislative power of the state. The answer to this theory is clearly given by Story in his "Conflict of Laws" [3] and by Fuller, C. J., in Hilton v. Guyot:[1] "It is not the comity of the courts but the comity of the nation which is administered and ascertained in the same way and guided by the same reasoning by which all other principles of municipal law are ascertained and guided." Marshall, C. J., in The Nereide:[4] "The court is decidedly of opinion that reciprocating on the subjects of a nation or retaliating on them its unjust proceedings towards our citizens is a political not a legal measure. It is for the consideration of the government, not of its courts."

The same question was raised in Parker-Harris Co. v. Stevens [5] and the same reason urged for refusing to recognize the title created in Texas under the Texas statutes. The Missouri court, however, refused to carry the doctrine to this extent, quoting from the language in Hughes v. Winkleman:[6] "Comity is a kind of courtesy which, subject to exceptions, is administered by fixed rules of law and rises to the dignity

[1] Hilton v. Guyot, 159 U. S. 113, 16 Sup. 139, 40 L. Ed. 95 (1895).

[2] Union Securities Co. v. Adams, 33 Wyo. 45, 236 P. 513 (1925).

[3] Story, Conflict of Laws, §37, repeated by Taney in Bank of Augusta v. Earle, 13 Pet. 519, 589 (1839).

[4] The Nereide, 9 Cr. 388, 433 (1815).

[5] Parker-Harris Co. v. Stevens, 205 Mo. App. 373, 224 S. W. 1036 (1920).

[6] Hughes v. Winkleman, 243 Mo. 81, 147 S. W. 994, 997 L. R. A. 1916 A, 1007 (1912).

of a legal right, as over against mere politeness and social intercourse."

Section 7. Conflict in Rules of the Conflict of Laws.

§ 7.1. Resolutions of the Rules of Conflict of Laws. — The rules of law governing Conflict of Laws may differ in two states which are concerned in a single legal problem. Thus, in the case of a deceased person, who it is claimed died domiciled in state X, the laws of the forum Y and of state X may differ as to what constitutes domicil. So if a suit is brought in state Y on a contract made in state X the law that determines the place of contracting may differ in state X and in state Y. We must find, therefore, in the doctrines of the Conflict of Laws some way of determining this difference. In a territorial system of law there can be little doubt that this conflict is resolved in favor of the law of the forum. Examples of this will be found in most of the subsequent chapters.

§ 7.2. Qualifications. — The situation which is proposed in the foregoing section is called in Europe the system of qualifications. In this country, as has already been said, all qualifications are determined by the law of the forum.[1] Examples of qualifications are differences in rules of domicil, of jurisdiction, of marriage law, of the difference between movables and immovables, of the place of contracting, and of the place of wrong, and the question whether a certain rule is substantive or procedural. All these cases will be considered hereafter.

§ 7.3. The Doctrine of the Renvoi. — A neglect of the considerations dealt with in previous sections has led to some doubt being thrown on the applicability of the theory of the renvoi to the decision of a case by a common-law court. The theory of the renvoi was formulated fifty years ago by continental writers and courts, and caused a considerable discussion.[2] The theory of the renvoi as stated by Professor Schreiber is as follows: "When the Conflict of Laws rule of the forum refers a jural matter to a foreign law for decision, is the reference to the corresponding rule of the Conflict of

[1] For a well-considered article on Qualifications by Professor Ernest G. Lorenzen see 20 Col. L. Rev. 247.

[2] For a full consideration of the the-

ory of the renvoi see Lorenzen in 10 Col. L. R. 190, 327; Schreiber in 31 Harv. L. R. 523; Bate, Notes on the Doctrine of the Renvoi.

Laws of that foreign law, or is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of the foreign law minus its Conflict-of-Laws rules?" [1]

A typical question in which the doctrine of the renvoi is raised is as follows. An Englishman dies domiciled in France and leaving a will. By the English law the validity of the will is determined by the law of the domicil, France; by the law of France the validity of the will is determined by the law of the nation, England. A question as to the validity of the will arising in an English court, it holds first that the validity of the will is determined by the law of France. If, however, by the law of France we mean in the way the French courts decide it, the French courts would decide that it is determinable by the law of England. If we put the same interpretation upon what the French court means by saying that it is decided by the law of the nation, we shall be inextricably involved in a circle and can never decide the case, since each party will constantly refuse to apply its own law and insist upon the law of the other party. This of course is an impossible condition. The only possible rules that can be practically applied are; first, that the English court will apply its own law without regard to the French Conflict of Laws; second, that the English court, having found that the French court would apply the English rule, accepts the situation and applies its own rule.

In a number of cases the second alternative was adopted and the English court applied the law of the nation in obedience to the requirements of the law of the domicil to the decision of which it had referred the case.[2] It must be clear, however, from what has been said, that these cases are not decided in accordance with the general principles of the Conflict of Laws. The vice in the decisions results from the assumption that the foreign law has legal force in a decision of the case; whereas, as has been pointed out, the only Conflict-of-Laws rule that can possibly be applied is the law of the forum and the foreign law is called in simply for furnishing a factual rule for the succession to the estate. The rule of the foreign law adopted by the law of the forum is the rule of suc-

[1] Schreiber, 31 Harv. L. R. 525.

[2] In re Trufort, 36 Ch. D. 600 (1887);

In re Johnson, [1903] 1 Ch. 821; Ross v. Ross, 25 Kan. 307 (1893).

cession, not the Conflict-of-Laws rule. This has been strongly recognized by Russell, J., in the latest English case,[1] and is the doctrine adopted in the important American articles referred to, and it is believed to be the sound doctrine in our law.

Section 8. Exceptional Cases.

§ 8.1. Foreign Title or Divorce. — The exception in cases of title or of divorce is only apparently an exception to the general doctrine stated in the previous Section. It is not in any sense an adoption of the foreign law as operative in the cases enumerated. The answer that would be given to the question at issue by the foreign tribunal is accepted in fact only without regard to any reason which the foreign tribunal might have or any legal considerations applicable. Because of the paramount social importance of treating the existence of marriage, for instance, in the same way in all states, the law of the forum attempts to bring about a warranty of such treatment by providing in its law for a decision of the question in the way that the law which in its opinion is the proper law would determine it; not because of any effect given to that law but simply as the rule adopted by the law of the forum for the determination of such problems. The same argument applies to a determination of the, title of foreign land; it being essential to the protection of the interests of all parties that such a title should be determined everywhere as the state of situs would determine it since that state alone must have the final authority. The cases on the point are in complete agreement.

In a case where divorce is in question the law of the court of the forum will decide the case in the same way as the courts of the state to whose law the validity of the marriage would be referred by the Conflict of Laws of the forum [2] and the same is true in the only case found in the books in which the title to foreign real estate has been dealt with in this way.[3]

§ 8.2. Succession to Chattels. — It might be thought that an example of the recognition of a foreign decision is presented

[1] In re Annesley, [1926] Ch. 692.

[2] Armitage v. Attorney General, [1906] P. 135; Ball v. Cross, 231 N. Y. 329, 132 N. E. 106 (1921).

[3] In re Baines, Dicey, Confl. L., 2d ed., 723.

by the recognition of the effect of the succession law of the domicil upon chattels found in another state at the death of the owner, and especially so if the law of the domicil differs as to its rule for the application of law from the law of the situs of the chattels. For instance, Illinois and Massachusetts provide that the chattels of a person deceased shall go, not according to the law of the domicil of the decedent owner, but according to their own law. This would of course be applicable to chattels within the state. Suppose, however, such a chattel is moved from the state in which it was situated at the death of the owner into another state which happened to be the domicil of the deceased owner, and it was there claimed by the successor according to the law of the domicil. It will be claimed that if the Conflict of Laws of the state where the chattel now is is to be applied to the question of succession, the successor by the domiciliary law should have the chattel, and if he does not succeed it will be an example of the operation of the special doctrine herein considered. It is believed, however, that this is not such a case, that on the other hand the Conflict of Laws of all common-law states is that property passes on the death of the owner as it does by transaction during his lifetime, in accordance with the law of its situs at the moment. The ordinary rule of succession, namely, that movables pass in accordance with the law of the domicil, is not a doctrine of the Conflict of Laws, strictly speaking, but is a rule of the common law of succession, that is, a part of the law of the state of situs. When that doctrine is changed by statute it is not a statutory change of the Conflict of Laws but a statute of the law of succession of the situs and it is for that reason that the statute can be applied in a case where the domicil of the decedent is outside the state.

Section 8A. Rights. As used in this subject, a right is a legalized interest in, to, or against a person or thing.

§ 8A.1. Meaning of Interest. — An interest, as the word is to be taken in this definition, is not a legal phrase but a word in its ordinary meaning. What is meant by interest is a human demand or desire which is connected with some person, thing, or act. If, for instance, one desires to have special privileges with respect to the society or the assistance of a father, a brother, or a wife, this desire becomes a right if the law recognizes the interest. In the case of the father certain desires of his son with respect to his father are legalized and are therefore rights, such as the interests of support, of guidance, and of association. Similar interests with respect to a wife are legalized and therefore become rights. In the case of a brother or friend, however, interests (such as an interest of exclusive companionship or of mutual protection) are not legalized and therefore never become rights. In the same way one may have a desire for the occupation and enjoyment of land, of a highway, of the sea, or of the air. Under some circumstances interests in land are legalized and become rights. Interests in the other things mentioned are only to a very small extent legalized; the things are left for the use of everyone and no one is allowed by the law to acquire an individual right. So a man may wish to control the action of another or of himself. In so far as the law allows him to do so he has a right. In so far as the law does not allow such control he has no right. Thus, he has a right to the performance of a contract by another with whom he has made the contract, and he has a right to do any act himself which the law allows him to do; but his interest in doing any act not allowed by the law, not being legalized, is not a right.

§ 8A.2. Social Interests. — The general social organization becomes, as has been seen, upon its coexistence with law, what is called a state or, to put it in other terms, the state is society politically organized. The state, then, is the representative of the social interest. In theory the state must always be supreme before the law, and while in certain periods of civilization society has deemed it better to magnify the rights of individuals against the community, this individualistic condition is always unstable and tends to fall into the more natural condition of social supremacy.

The interests of the state are, in general, the personal interests of existence, constitution, peace, and so forth; and the property interests, that is, public rights over the persons and property within the state's jurisdiction. One interesting example of the protection of state interest is the doctrine of public policy; a doctrine by which every private right may be modified in the interest of the state.

It has been common to make a complete and fundamental distinction between the law which protects social interests and that which protects individual interests. It is believed, however, that no such fundamental distinction exists, but that the law deals with social interests in the same way that it deals with the interests of individuals.

There is, to be sure, one class of public interests which does not have an exact counterpart in the private law. It has been seen that a sovereign has full power of choice, first in creating protecting rights, second in furnishing remedies, and third, in issuing execution on judgment. In determining action on these matters of choice the law is unquestionably influenced by the nature of the social interests involved in action or non-action, and to that extent social interests play a different part in the development of law from private interests.

§ 8A.3. Private Interests of Person. — Private or individual interests comprise roughly interests of person and interests of property. Interests of person may include every personal desire which is purely personal and does not involve the use of any property in a thing. Existence itself, so far as law is concerned, is an interest. It is quite possible for law to ignore the very existence of a man; human existence, therefore, must be regarded as an interest desiring recognition and protection. Life, liberty, and the pursuit of happiness, the human interests named in so many of our declarations of right, are among the principal personal interests, to protect which must be an object of law.

Besides these interests which are common to all mankind, there are certain kinds of personal interest which are peculiar. Such, for instance, are nationality, honor, office, and condition, and in general all permanent personal conditions. There is also a class of important interests in the relations between persons, such, for instance, as marriage and legitimacy. Every civilized law must protect many out of all possible personal interests, and no law has as yet undertaken to protect all of them. The quality of any particular law, therefore, is determined in this respect by the number of personal interests which it protects or leaves unprotected.

§ 8A.4. Interests of Property. — Interests of property comprise every thing which a man may desire to possess. Not every such thing is protected as a private interest; such generally diffused objects of desire as air and water are usually not protected as private interests, but as social interests of the state. Under certain circumstances, however, even such things as air or water may be treated as individual private interests.

Interests of property are not necessarily confined to tangible things. Much valuable property, the private interest in which is protected, is entirely intangible; such, for instance, are good-will and patent rights, franchises, and interests in corporations. In addition to these intangible interests there is another class which may in some aspects be regarded as property: that is, power over the property or the services of another; a power created by contractual and other obligations. Interests based upon such obligations, it will be noticed, are interests only in the relative sense. It is the interest of the creditor to have the right protected, but the wealth of the debtor is diminished by the exact amount that the wealth of the creditor is increased by the obligation. The protection of such relative interests is, however, acknowledged to be a function of the state.

§ 8A.5. Interests of Will and Act. — It is not only in his person that an individual needs protection. For his full development in society he needs protection for his freedom of will and of action. In some aspects this is a mere personal interest, in other aspects it is closely allied to property interests; but the exercises of the free will through the permitted act is a special interest of so great importance as to justify separate consideration. Protection of the human desire to will and act is a duty of the law, always important and in some conditions of life essential. The protection or the restraint of the will as it operates through the act is apt to constitute the most plastic and the most characteristic portion of the law. It is in thought and action that new ideals first express themselves; and the law which protects interests of will and action, in order to subserve its purpose, must be capable of rapid growth to meet the quick development of contemporary thought. On the other hand, the interdiction and restraint of anti-social thought and act is a necessary feature of any law that is well adapted to the protection of all interests.

The interests under consideration are even more constantly than other interests the cause of conflicting claims. One may hold property or enjoy personal rights without in any way infringing the rights of others; but the full enjoyment of freedom in thought and action is quite incompatible with a similar enjoyment by others, since few acts can be done which do not in some way limit the power of action on the part of others. The task of the law, therefore, in protecting the interests under consideration, is the most difficult which it has to meet.

§ 8A.6. Rights. — It will be seen that legal protection of interests of property and person results in the creation of legal rights in persons or personal relations and in things. If my interest in my own existence is protected by law, it becomes an established right to exist. If my interest in my house is protected by law it becomes my established property. It is the nature of such a right to continue in existence until the law puts an end to it or until the interest itself ceases to exist, as by my death or by the destruction of my house. A process exists, then, by which a right to a person or thing once created continues unchanged by ordinary circumstances or by lapse of time until finally destroyed by nature or by the law that created it. Such an interest as this may be called an established interest and the right created by the law is an established right. It will be noticed that every right which is in its nature continuous and capable of continuing without change may be an established right. This of course includes rights in intangible things, which have already been discussed. A contract once made may be given this quality of remaining in existence until it is performed or discharged by law, and the right in the contract then becomes an established one. The same thing may be said of any obligation, whether created by act of the party or by mere operation of law: if a continuous obligation is created by a law it then may be regarded as an established right.

On the other hand, it will be noticed that the obligations of thought and act recently considered are not of this nature. Thought and action are necessarily discontinuous. There can, in the nature of things, be no established right to think a certain thought or to do a certain act; unless, indeed, it takes the form of an obligation to think or to act. There being no obligation in question, any protection of one's interest in freedom of thought or action can mean no more than legal permission to think a particular thought or to do a particular act; or, perhaps more accurately, to think and act as often as one pleases, but still necessarily disjunctively. The general freedom of thought and action for the future can therefore never become an established right, since it is incapable of continuous expression.

The power to think or act may indeed be coupled with an obligation to permit the power to be exercised at any time in the future or during a certain fixed period in the future. To take a specific instance: when one is given power to deal with certain property for value paid by him, the transaction involves a binding obligation on the part of the creator of the power not to interfere with the action. This obligation constitutes an established right, and in a certain sense the power to act would therefore be an established power. The established right, however, is one merely of obligation, and can concern the law as an established interest only through the operation of the obligation.

§ 8A.7. The Legal Protection of Interests. — It is often conceived to be the duty of law to take care that interests protected by the law be not violated by wrongdoers. This, however, is not strictly true. Only exceptionally does the law make provision for the prevention of wrongdoing. There are, it is true, certain police measures taken for the prevention of serious crimes, and in a few cases legal power is given to individuals to protect their own interests. These, however, are rare exceptions. The law does not generally attempt to carry out preventive measures against the violation of rights.

What the law does is to create right after right, in a long series, in the effort to repair injuries to protected interests. An interest which receives the protection of the law and becomes established, is protected by a class of rights created by the law to safeguard the established interests; for instance, an established interest of personality is protected by a provision against assault; and an established interest in land by a provision against trespass on it. If a wrongdoer violates one of these protective rights, the law then creates a new right which is regarded as equivalent to the one destroyed by the wrongdoing, and this new right takes the place of the violated right. This is a right to damages or other reparation. If the wrongdoer fails to satisfy this right by making due reparation, the law, upon the case being proved in court, creates by means of a judgment of the court still another right, which in turn it gives the wrongdoer a chance to satisfy by performance. If the wrongdoer still continues to violate his obligation, the law, in its effort to redress the wrong, gives one more right still, by providing for some method of executing the judgment. It is by the execution of the judgment that in the usual course of events the law for the first time provides for the actual carrying out of a right and the prevention of a violation of it through action of the state.

Around social interests the law spreads the same enveloping series of protecting rights that it does about private interests. These protecting rights may be violated just as is the case with the rights protecting private interests, and the wrongful act which violates them, called a crime, results, like a private wrong, in the creation of an equivalent remedial right. This right, in turn, if a remedy is offered, results in a judgment, and the judgment in an execution; and so the cycle of the law is completed in criminal as in civil cases.

The law, then, in protecting an interest first creates an established right; second, it creates a series of protecting rights to protect the interest from moment to moment; third, in the case of violation of the protecting right it creates a right of action; fourth, in case of failure to satisfy this right and as a result of a law suit it creates another right by a judgment; and finally, upon failure of the defendant to satisfy the judgment, it creates a right of execution; and this right for the first time is regularly specifically enforced by the state.

§ 8A.8. The Nature of Rights. — The primary purpose of law being the creation of rights, and the chief task of the Conflict of Laws to determine the place where a right arose and the law that created it, a more careful study of the nature of rights is of course desirable before the examination of actual cases of conflict is begun.

As has already been pointed out, many European languages make no discrimination between the system of law and a legal right; ius, Recht, droit, diritto, derecho are words meaning, equally, law in general and a particular individual right. The application of a foreign law and the enforcement of a foreign right might be expressed by a European lawyer in the same phrase; and to deny the application of a foreign law would seem to be the denial of enforcement of a foreign right.

Since we are fortunate enough to have different words for these ideas, it is all the more necessary that we should fully understand each of them.

Dean Roscoe Pound, in an article in the International Journal of Ethics for October, 1915, entitled "Legal Rights," has so exhaustively considered the meaning and nature of rights that little more is desirable than to summarize his conclusions; expressing here the indebtedness that every scholar must feel to him for his remarkable studies in Jurisprudence.

He distinguishes five senses in which the word "right" is used in law books.

(1) It is often used in the sense of interest; as in Gareis's definition of an interest (in his Enzyklopädie und Methodologie der Rechtswissenschaft, 3d ed., § 5): "a subjectively perceived relation derived from necessity, between the person feeling the necessity and an object; that is, the object for which the necessity exists and is felt, and through which, by use or consumption, actually or probably, it will or may be satisfied in whole or in part." So far as such a right is a legal one, it means an interest as recognized and delimited for the purpose of securing it through the legal order.

(2) It is used to designate the chief means which the law adopts in order to secure interests, namely, a recognition in persons, or a conferring upon persons, of certain capacities of influencing the action of others. As Merkel puts it (in Juristische Enzyklopädie, 2d ed., § 159 note), the idea in the second use of "right" differs from that in the first use as the fortification from the protected land.

(3) A third sense of the word is the capacity of creating, divesting, or altering "rights" in the second sense; that is, a legal power.

(4) Another use of the term signifies a condition of legal immunity from liability for what otherwise would be a breach of duty; that is, a legal privilege.

(5) Right is also loosely used to indicate that which is just; so that, even in legal speech, we not infrequently say one has "a right" to this or that because, without any definite legal claim, we feel that on a balance of equities we should like to see him have it.

For other discussions of legal rights, Dean Pound refers to numerous authorities.[1]

'Hohfeld, Some Fundamental Conceptions as applied in Judicial Reasoning, 23 Yale Law Jour. 16, 28; Salmond, Jurisprudence, §§ 70-74, 78-85; Gray, Nature and Sources of the Law,

§§ 22-62; Wigmore, Summary of the Principles of Torts, in his Cases on Torts, vol. ii, App. A, §§ 4-8; Korkunov, General Theory of Law, transl. by Hastings, §§ 27-29; Gareis, Science

In the analysis of rights which follows, rights in the first sense discussed by Dean Pound have been called static rights; rights in the second sense, dynamic rights. Powers and privileges are of importance in our law chiefly in their effect as limiting dynamic rights. Rights in the last sense are not, properly speaking, legal rights at all, and will not be considered.

§ 8A.9. The Analysis of Rights. — Many methods might be devised of analyzing and classifying rights; and one would be bold indeed who should claim his own method to be the best. Nor is it possible to find in the authorities to which we turn for our knowledge of law any classification of rights to which we may assent. Such essays in this direction as have been made by courts and by the authoritative writers on law have been little considered by the authors themselves and little regarded by the successors. In fact, the law is on its face an amorphous body of principles, and it can be analyzed only by going below the surface; nor is there any received method of proceeding. The classification indicated by its division into currently received topics — Contracts, Torts, Property, Procedure, Equity, and the like — is purely unscientific and unhelpful; it is useful only as furnishing labeled compartments into which the multitude of decisions may for convenience of study be sorted.

For our purpose, however, some kind of analysis and classification of rights is absolutely necessary; unless indeed all rights should in the Conflict of Laws be treated alike, which, as we shall see, is not the case. The classification here adopted is based upon a difference made by our law in treating rights of the different classes with respect to the law creating and having power over them.

All rights may first be divided into three main divisions: 1, primary rights; 2, secondary rights; 3, remedial rights. The first division, primary rights, includes all the rights created by law and existent in the ordinary proper course of events, unaffected by illegal interference. The second division, secondary rights, includes rights which arise upon the

of Law, transl. by Kocourek, §§ 31-35; Brown, The Austinian Theory of Law, 172 el seq.; Schuppe, Begriff des subjektiven Rechts, chap. 2; Bierling, Kritik der juristischen Grundbegriffe, ii, 49-73; Dernburg, Pandekten, 8th ed., i, § 38; Windscheid, Pandekten, i, § 37; Kohler, Lehrbuch des bürgerlichen Rechts, i, §§ 44-46; Cosack, Lehrbuch des deutschen bürgerlichen Rechts, i, §§ 16-20.

violation of primary rights, by the wrong of some responsible human actor; they are created by law in order that reparation may be made for the wrongful destruction of each primary right. The third division, remedial rights, consists of rights to sue and to enforce judgment; all rights, in short, which are created to secure the actual enforcement of secondary rights.

In the following sections, each division of rights will in turn be examined with a view to determine the exact nature of the various rights included in it, and to fix the law which creates these rights.


Sub-Topic A. Static Rights

§ 8A.10. The Nature of Static Rights. — Primary rights may be divided into two classes: static rights and dynamic rights. A static right, or as it is commonly called an established interest, is a legally protected interest in a person or thing. Such an interest is one which continues indefinitely, and protection of it therefore requires a right which, like the interest it protects, has the character of permanence. Accordingly a static right remains in existence until either the subject of the interest ceases to exist or the law itself by a special act puts an end to the right. Take, as instances of static rights, marriage and land. A marriage once created continues in existence until the death of a spouse or until a divorce. A title to land continues to exist until the land itself disappears, or until the law, by an act of taking by eminent domain or by the operation of a statute of limitations, destroys the title.

When we say the right persists we do not mean that it may not be transferred from one to another. Most static rights in persons are to be sure incapable of transfer; but most property rights are freely transferable. The transfer, nevertheless, is the transfer of a right which continues in existence, not the creation of a new right.

In addition to this characteristic quality of permanence, static rights have another important peculiarity. Static rights are objective; they concern not merely the party or parties to them, but every member of society as well. Marriage, for instance, is not merely a private relation between two spouses; it is a relation which everyone must notice and respect. Propperty is not only a private right of the owner to the thing owned; the owner's right affects and abridges the rights of everyone else, and it enters as well into their relations with the thing as into those of the owner. Static rights, then, concern all the world.

The state itself is interested in the continued existence of all static rights which it does not choose to terminate; and parties cannot usually by their own will put an end to such rights. Thus personal status cannot be terminated, in general, by consent of the parties; a collusive divorce, even, is wrong, though granted in the legal method by the proper tribunal. In England, special counsel have been employed to test the bona fides of suits for divorce. Rights of property, also, are of interest to the state; and although it ordinarily permits the abandonment of property, yet it may and sometimes does forbid it.

The characteristics of a static right are, then, these: the quality of permanence, the relation of third parties to it, and the interest of the state in its existence.

§ 8A.11. Distinction between a Static Right and the Rights Which Protect It. — A static right, as has been seen, is the interest of a person in a thing or in a person; the right is created by law, and once created it is permanent, that is, it persists until the proper law puts an end to it. The law that creates it also provides for its preservation, by creating a hedge of protecting rights about it; rights of the owner or possessor to have it free from interference or destruction. One cannot conceive of a state creating a static right without providing for its protection; and so important is the existence of protecting rights that it is often said that the static right is really nothing more than the sum of its protecting rights, and if these are removed, the right must die.

This opinion quite loses sight of the real nature of the static right. It is to be regarded as a legal entity, quite apart from the particular protection with which it may be endued by law. A man traveling through the world may now be passing through a country which protects him from fright and horror, or again through one which guards him only against physical injury.

"If a Turkish or Hindoo husband were travelling in this country with his wife, or temporarily resident here, we should, without hesitation, acknowledge the relation of husband and wife between them; but the legal pre-eminence of the husband as to acts done here would be admitted only to the extent that the marital rights are recognized by our laws, and not as they are recognized by the law of his domicil. If a Roman father, or a father from any country which had adopted the Roman law of paternal power, were travelling in this country with a minor child, we should acknowledge the relation of parent and child, but we should admit, I presume, as a general rule, the exercise of the paternal power no further than as it is authorized by our own law." [1]

The fact is, that the static right itself remains unchanged, though the protecting rights change; and it would remain equally unchanged though they ceased altogether. In other words, a static right may be deprived of all present power to operate by the subject of it being carried into a country which does not recognize or give any effect to the right; but the right continues to exist so long as any vestige remains of the entity once created by the law. If, for instance, a husband and wife travel through a country in which there is no law recognizing marriage, they do not for one moment cease to be husband and wife, although the relation has no legal incidents in the country through which they are traveling. If a man carry his horse or his slave into a country which recognizes no private property in chattels or in human beings, the same thing is true; the static right does not come to an end merely by the present loss of its incidents. When the subject matter is brought again into a country which recognizes the right, the property is found again to be in existence. The spouses returning from the country which recognized no marriage would not need again to go through the ceremony of marriage, nor could one of them regard the sojourn in the marriageless country as tantamount to a divorce; nor would the horse, returned into a country that recognized property, be regarded as bonum vacans. Though shorn of its incidents, the entity, the static right, remains in existence until its object perishes or some law having power over it puts an end to it.

[1] Ware, Dist. J., in Polydore v. Prince, Ware, 402 (1837).

Another sort of subsidiary right is often confounded with the principal static right. Thus it is often said that a static right, — for instance, a right in land or a marriage, — is made up simply of the bundle of rights which are necessary for its enjoyment. In the case of land, it is said that title to land, which is, as we shall see, the static right, is made up of a bundle of smaller rights; the right of possession, the right to use, the right to destroy, the right to transfer, the right to devise, the right to prevent interference or annoyance from third persons. In a similar way, marriage is said to consist of the right of each spouse to the society of the other, and the right to prevent strangers from breaking up this society. If this method of thought amounted merely to saying that a static right is of present use only in so far as some such elements are recognized and enforced by the law, it is doubtless true. If, however, it is taken to mean that a static right is a mere composite which may be resolved into these elements, it is an unsound manner of thought. Marriage, or title to land, is a thing of itself, a separate entity, out of which certain smaller rights may be carved, but without altering the nature or the existence of the entity. For instance, one who has the complete title to land may grant a right of way, a right to use, a right to possession, a power of transferring, a right of inheritance; he may strip himself of all power to object to anything that may happen to the land; and yet he may not part with his legal title. The title, though stripped of its value, may still remain in his own hands. So, a machine made up of wheels and cogs, of screws and bolts, may be stripped of one after another of its members without losing its character as a machine. It may be deprived of all present power to function, and laid on the shelf until the missing parts are supplied; but when they have been supplied the machine is not another machine. It was, is, and will be the same machine until it is destroyed, in spite of the destruction and replacement of its parts. In the same way a static right once created continues the same thing until finally destroyed, though during its existence it may be subjected to the laws of various countries, which may supply very different rights of enjoyment and protection, or even no rights at all.


§ 8A. 12. The Nature of Personal Status. — Personal status is a vested personal condition or relation; a condition or relation created and destroyed by an act of law, not by the mere consent of the parties, and of legal importance to all the world. The quality of permanence distinguishes status from consensual relations, such as those of master and servant, or of principal and agent, where the relation depends upon the mere will of the parties; and the close analogy between status and property is shown by the fact that these two kinds of static rights possess in common the above-stated characteristics of static rights.

Personal status may be divided into two general classes: absolute status and domestic relative status. Absolute status comprises cases of static personal condition, such as personality, natural or artificial, legitimacy, nationality, office, or rank. Relative status comprises cases of static relation between persons, such as marriage, guardianship, legitimate descent.

§ 8A.13. Personality. — Of all interests, that of a man in his own personality is the first and most necessary; and it might be supposed that any civilized law would tacitly recognize this interest without the need of special legal sanction. This however is not always the case. In the early stages of our own law, for instance, the outlaw was a man who by regular judicial process had been deprived of legal personality; as the phrase ran, he had become caput vulpis, no longer recognized as a human being. An affirmative act of the law, inlawry, was necessary to give him again a vested right in his own personality. A similar instance of loss of legal personality is the so-called civil death, either by becoming a monk or by being convicted of felony. A slave lacked legal personality in the slave states of the United States, while slavery existed there, though in some of the free states he still possessed legal personality.[1]

By the first provisions of the French Civil Code, foreigners do not ordinarily enjoy civil rights in France; that is, they have not full recognition of their personality.

[1] Dred Scott v. Sandford, 19 How. 393 (1856); and see Polydore v. Prince Ware, 402 (1837).

Personality is not confined to individual human existence. There is also in the human mind a tendency to personify an institution, an association, a thing, or even an ideal: thus a country, a college, a club, a ship may be thought of as a person; even such abstractions as patriotism, fame, or rumor may be imagined, and represented in literature, painting, or sculpture, as a person. Such personality is not fictitious, though it exists only in the minds of men. The concurring affections of the people make a nation a real thing, a thing apart from the mere individuals who owe it allegiance; the devotion of her sons creates a real living university, differing from its teachers and students, and more than their sum. In the same way, a growing sense of individuality may affect the nature of a business association. A partnership may be but a name to partners, clerks, and customers. On the other hand, by reason of age, success, striking peculiarities of action, or otherwise, it may be regarded as an institution quite apart from its associated partners; as important department stores or printing plants are regarded as entities, with individual qualities, and their names no longer connote the names of partners, but the names by which the institutions are distinguished.

Such personality may or may not receive legal sanction; but in every law some such artificial personalities are made the subject of static rights. Thus in maritime law ships are personified; in India idols may become persons in the law; in the middle ages animals were sometimes endued with personal qualities. But the principal artificial persons are business associations. Any business association may be, and in every civilized country many such associations are, endued with personality, or in the language of our law, incorporated.

It is often said that the subject of incorporation is the individual persons who are thus associated together for a business purpose. It is far more accurate, however, to say that these individuals by their agreement together form a new thing, an association, which has in fact in some greater or less degree the quality of an institution, an artificial personality; and that by incorporation the state merely gives the legal status of personality to this institution.

§ 8A.14. Other Examples of Personal Status. — All matters of personal rank or caste are examples of personal status. Such, for instance, are nobility or serfdom. Since status of this sort is neither created nor recognized by the American law, it is not essential to consider the question at greater length.

Slavery is another example of personal status closely analogous to those just considered. This, also, is a status from which our own law is, fortunately, free, and it will be necessary only to mention it here.

Full age or minority are in many laws treated as kinds of personal status; and as such they will be considered later. The same thing is true of interdiction, that is of loss of civil powers, by reason of insanity or other mental incapacity. It will be necessary to consider these examples of status in the course of our discussion, although they do not exist in our own law as static conditions.

Public office is a status that is of great practical importance in this country. The holder of a public office is vested with the office, and his position has all other qualities of static right. Its terms are fixed by law, and every person must take notice of the existence of the office and its rights and duties.

The similarity of a public officer to one who owns and maintains a public utility has often been noticed. A common carrier, innkeeper, or person employed in any similar public service, owes duties and exercises rights which are in all respects analogous to those of public officers; and the two may be considered together. Our law sets apart certain business activities as endowed with a public interest. These are now often called public utilities; or, in a similar phrase, public service. Office and public service, as will be seen, have certain peculiarities which distinguish them from ordinary kinds of status; but, generally speaking, the analogies are so close that they may be properly included within this category.

§ 8A.15. Relative Status. — Of all varieties of relative status, often called in our law domestic relations, the most important is marriage. In all Christian nations marriage is a relation which is of interest to the State; its creation and destruction are regarded as matters which are to be determined by the State alone, and not in any degree by the mere will of the parties themselves. In other words, the mutual relations of the spouses are static, to be taken notice of by all the world and to continue in existence until either the subject matter itself is destroyed by the death of one of the parties or until it is put an end to by an act of the law, that is, divorce.

The relationship between a father and child is, obviously, a purely natural one, and as such, the law can neither create nor end it. This natural personal interest, however, before being of any importance in the law, needs to be raised by the law to the character of a legal right. When thus recognized and given effect by the law, the natural relation becomes what is called a legitimate relation. A natural child, recognized as such by the law, is called a legitimate child; but if the relationship is not recognized by the law, the child is illegitimate, and the blood relationship is treated as if it did not exist.

Such legitimate relationship exists in the ordinary case from the birth of the child. In cases, however, where at the time of the child's birth it is illegitimate, the possibility always exists of its being later recognized as a child by some subsequent act of the law. This act of the law, after the child's birth, is known as legitimation.

A relation similar to that of fatherhood and sonship may be established between persons not naturally related in the blood. Although this has many qualities analogous to that of blood relationship, it is nevertheless not the same thing. The process by which such a relation is established is called adoption; the child is called the adopted child, and the parent the adoptive father.

A relation of care and obedience exist by nature between a minor child or other person not capable of caring for himself, and the person who actually cares for him. This relation has many qualities analogous to that of father and child, although there are characteristic differences. The relation is often recognized by the law, which creates out of it the status of guardian and ward. Guardianship may be created by the law in any case where it deems the ward incapable of caring for himself.

Guardianship of this kind must be carefully distinguished from that office, called in our law by the same name, where the so-called guardian is merely a custodian of property. Custodianship of property obviously involves no personal relationship whatever, and is not an example of status, but of power over property.


§ 8A.16. The Nature of Property. — Property being a protected interest in a thing, any sort of interest may be protected, and any sort of thing may be the subject of an interest. It remains for later investigation to determine the nature of the things and interests in question.

This use of the word property, which may claim to be the accurate legal use, is to be distinguished from a very common application of the word to the thing itself which is the object of the interest. Thus where the object of the interest is a horse, the property in the true sense is the legalized interest of the owner in the horse; but the horse itself is too commonly spoken of as property, the property of the owner. So common is this latter use, that one can hardly hope not to fall into it at one time or another; but the effort should be made to confine the word to its proper use.

In its proper use, the word property should be applied to any legalized interest in the thing, whether greater or less. As now commonly used in our law, it is restricted to the complete interest, the ownership, or title; and when one now speaks of property in a piece of land he means ownership of the land in fee. Formerly it was common to apply the word to other special interests; thus, one having the legal right of possession was said to have property, or a special property, in the thing. This use is practically obsolete.

Where, however, property is spoken of in the broader sense, it is still understood as defined above; and it will thus be used in this discussion.

§ 8A.17. The Sort of Interest Protected. — Interests of any kind may be protected by the law; though the kinds of interest protected by a particular law, as for instance by our own, are limited. Within such limits the interests may be very numerous; but it is possible to divide them into well-recognized classes.

Thus, interests may take effect in succession; there may be present and future interests in a single thing. Each successive owner of the interest has, while he enjoys it, a complete or nearly complete enjoyment of the thing.

Interests may be greater or less; thus there may be ownership in fee, power to appoint, easement, right of possession. Each of these interests is, in the sense in which we are using the term, property. The power of appointment by will, the right of way over the neighbor's land, the right of possession of another's horse, are all alike property. Such interests differ from those considered in the preceding paragraph in that the smaller and the larger interests are enjoyed simultaneously.

Interests may be recognized or enforced in different courts; thus there may be legal or equitable interests, free tenancy and copyhold, equities of redemption, and similar interests recognized in a single court only, and not in other courts.

It has often been denied that the interests of cestui que trust is an interest in the land; but, on the other hand, it is said to be a mere personal claim against the trustee. And this is doubtless the theory on which the common law proceeded. For our purposes, however, as we study the nature of the right with a view to determining its real qualities and its relation to other rights brought into conflict with it, we cannot rest satisfied with the theory of a particular law, or even of that common law which is the basis of all our particular laws; for the theory may be, as legal theories often are, a fictitious form into which the substance of progress is forced. It is necessary for us therefore to examine the case more fully. The court of equity, when it first restrained a trustee from depriving cestui que trust of his so-called beneficial interest in land, created or recognized a new right; was it a right in the land, not recognized by courts of law, or a new kind of contract, not recognized by courts of law? While it is true that equity can act only in personam, did the chancellor, so acting, give relief to cestui que trust as owner of an interest in the land, or as the mere beneficiary of a contract which a court of law would not allow him to enforce? Equity, the chancellor said, followed the law; which law did he follow, the law of property or the law of contracts? When law and equity are fused is cestui que trust recognized as the owner of an interest in land, or as the beneficiary of a contract?

The real fact is, that courts of law and of equity differed as to the existence of an interest in the land; and the power of courts of law was broader, so that their view appeared for a time to represent the accepted doctrine as to ownership. But as time went on the chancellor's view came more and more to be recognized as the true view of the case, and the court of law really to be the court whose power to do justice was limited by its own blindness. Instead of administering an exceptional and limited justice, the chancellor came to be recognized as having the last and controlling word. So it has proved. Law and equity have been fused by lawyers even more fully than by legislators; the doctrines of equity are now fully accepted as a constituent part of the law, and the interests recognized in equity are legal interests.

§ 8A.18. The Sort of Things Which May Be Subject of Interests. — It is clear that any tangible thing may be subject of interests. Land, animals, and movable things are usually so subject. The most generally disseminated things, like air and water, may be, but usually are not, the subject of legalized private interests; not that the interests do not in fact exist, but because the public interest is so much greater that it is not desirable to recognize the private interests.

How far interests in animals are to be recognized depends entirely on policy; where the general or public right is greater, as in the case of ordinary wild animals, private interest is not recognized. On the other hand, private interests of man in man, regarded as a mere animal, may be recognized; as in that sort of slavery where the slave is regarded as a thing.

But in addition to tangible things, there are many intangible things in which a man may have an interest, and the interest be recognized by the law. Thus a man may have an interest in an idea: an invention, a poem, a musical composition. Such an interest might be recognized by the law of patents and copyrights. So a merchant may have an interest in the good-will of a business. The things which are the subject of these interests are none the less real because they are not corporeal. Intangible as well as tangible things may be the objects of interests.

But there are other intangible things which have no actual existence, but are mere creatures of the law; debts, contracts, franchises, and monopolies are of this sort. That these may nevertheless be regarded as things, the subjects of recognized rights, is very clear; and in the modern law most legal creations of this sort are the subject of legal rights. Thus, a contract between A and B, though in its nature not at all a static right, but merely a relative dynamic right, is nevertheless treated by the law as the subject of a property right. Accordingly, third parties are legally bound to respect it; the parties themselves do a legal wrong by repudiating the obligation before the time for performance; and equity provides an action for repossession of the right by judicial proceedings. So far has this tendency to create a vested property right out of a mere dynamic relation gone, that the contract is frequently regarded as sufficiently fixed in place as to be the subject of taxation and of seizure on execution. The true nature of such rights as these will frequently arise for consideration in later chapters. Although an ordinary contract may be treated by the law as a thing only to a limited extent, certain obligations evidenced by or inherent in written documents may and frequently are dealt with as things. Thus any kind of commercial paper — bills, notes, cheques, bills of lading — are in many respects dealt with as ordinary things; so to a less extent are certificates of stock and insurance policies. Bonds are in our law in most respects dealt with as things.

Not only may a thing be the subject of rights; collections or aggregates of things, treated as forming a single unit or entity, may be the subject of an interest. Thus the stock in trade of a merchant may be regarded as a single thing; it is so regarded for purposes of taxation. Perhaps the commonest and most important example of this unification of a number of things is the treatment of an aggregate of property owned by a man as a single estate, as for instance for the purpose of transfer at marriage or death. In the common law this is confined to an aggregation of personal property; land is never so treated.

§ 8A.19. Transfer and Extinguishment of Rights of Property. — It is a characteristic quality of rights of property that they continue in existence until extinguished by act of law or by destruction of the thing. Such a right must be capable of transfer, at least upon death, since the right is of a nature to outlast human life; and in fact in all civilized communities rights of property are also transferable inter vivos.

A right is transferred when the transferee is put into exactly the same relation toward the thing that the transferor previously occupied. A transfer of title places the same title in the transferee; a transfer of possession puts the transferee in and the transferor out of possession.

Rights in tangible things may of course easily be transferred, by consent of the parties; and the same is true of real intangible things. In the case of commercial paper, a transferee takes the exact place of the transferor by the very terms of the instrument.

Choses in action, including contract rights and debts, are by their very nature incapable of transfer; for they are two-party relations, and the personalities of the parties are fundamental qualities of the relation. A new party could be inserted only by such a complete change in the nature of the obligation as would be a destruction of it and the creation of a new one; and this can be done only by mutual consent of both parties. Such a right, then, is incapable of transfer; it can only be assigned. An assignment is merely a contract that the assignee shall enjoy all the benefits of it, including that of suing. It does not put the assignee into the position of the assignor, or affect his right except collaterally.

Sub-Topic B. Dynamic Rights

§ 8A.20. The Nature of Dynamic Rights. — It has been seen that a static right is of indefinite continuance; that it concerns third parties as well as the owner; and that it is of interest to the state, which guards its creation, its transfer, and its extinction. Dynamic rights are in all these respects the opposite of static rights. Instead of being permanent, they are evanescent; they come to maturity, and at that moment come to an end, either by satisfaction or by destruction. Instead of being objective they are merely subjective; they concern the parties "alone, and no one else has right or interest in them Instead of being matters of state concern, they are of no public interest. The parties may deal with them as they please; they are incapable by their temporary and personal nature of transfer, but they may be released or extinguished by the mere will of the parties, without act or consent of the state. Static rights, in a word, have to do with vested conditions; dynamic rights have to do with the permission or forbidding of acts. Dynamic rights are of two classes: absolute rights and relative rights.


§ 8A.21. Interest-Protecting Rights. — Absolute rights are created by the law; and are rights, not against a definite party, but against "all the world"; that is, against each person who comes within the sphere of their activity. Such rights may properly be called interest-protecting rights.

The law hedges about every interest which it recognizes as a right with a number of interest-protecting rights. Thus, the ownership of land is protected by the right to have others refrain from any act injuring such ownership; for instance, from trespass to the land, from destruction of any part of it, or from a nuisance that injures it. The interest of personality is protected by forbidding others to violate personal security or sense of security, to harm reputation, and in other ways injuriously to affect the personal interests of the person. A marriage is protected by forbidding all persons to interfere with the marital relation, whether by causing loss of service or by injuring the marital tie itself.

It will be noticed that each of these rights forms a continuous series lasting as long as the interest exists; every moment new and every moment coming to an end. A particular right existing for the moment only is at that moment either satisfied or destroyed; but whether satisfied or destroyed, it is succeeded, if the interest continues to exist, by another right in the same series. The destruction of it results in a new right, a right of action.

The interest protected may be that of a private individual, in which case the destruction of the interest-protecting right constitutes what is called a tort; on the other hand, the interest involved may be that of the public at large, organized society, or, in other words, of that specialized legal personality, the state. In that case, the destruction of the interest-protecting right becomes a crime.

It will be noticed that an interest-protecting right had to do with the legal permissibility of acts; and that it is purely negative, forbidding the doing of acts by others in violation of the right.

§ 8A.22. Interest-Enjoying Rights. — Similar to interest-protecting rights are the rights which enable the owner of a static right to do acts in the enjoyment of his interest. Thus, the interest of marriage requires for its full enjoyment the right of cohabitation; but it is within the power of law to withhold this right from the spouses. So the law may annex to the interest of a person the right to "stand in justice" in the courts; to the interest of a father in his child a certain right of correction; to the interest of an owner in land the right to use it in a certain way; to the interest of an owner of a patent for an invention the right to dispose of the invention in return for a royalty.

These rights are not so obvious as the interest-protecting rights; indeed, to one dealing only with the law of a single jurisdiction it is the denial rather than the existence of such rights that is noticed. For a state that legalizes an interest will naturally confer all such rights of enjoying the interest as are compatible with the interests of other individuals and of the state; and it will seem that the limitation of an owner's acts by reason of competing interests is a limitation upon a general and essential right to "do as he pleases with his own." "Shall I not take mine ease in mine inn?" is the natural quære of a man who assumes that the ownership of property involves every right of enjoyment which he could conceive.

When, however, one studies a number of different laws with a view to determine their mutual spheres of action, one is struck with the fact that the right to do acts in the enjoyment of interests varies from state to state, and that no right of enjoyment can be predicated as absolutely essential; and with the further fact that the right of enjoyment created by the state which creates the static right receives no recognition as such in another state. Each state creates and has a right to create its own armory of enjoyment-rights, as it creates its own fortress of defensive rights. Each right of enjoyment is as entirely a creature of the law as each right of protection; and each, as has been seen, is quite distinct from the static right itself.


§ 8A.23. Contracts and Debts. — Relative rights are obligations between two persons created by their will or act; consensual obligations of all kinds, like debts, covenants, and simple contracts; they do not consist, like absolute rights, of a continuous series of momentary rights, but are single obligations, due at a certain fixed time. It has already been seen that a contract tends to become a piece of property and as soon as it comes to partake of the nature of property, it becomes a permanent right, outlasting a breach and capable of being enforced after the date for performance, and the subject of interest-protecting and interest-enjoying rights. Regarded, however, merely as a relative right, it is a single obligation, either satisfied or destroyed at the moment fixed for performance. After that, the mere relative obligation exists no longer, its place being taken, as will be seen, by a claim for damages.

It has already been seen that a contract right is not capable of transfer or modification by the act of either party; even, indeed, by consent of both parties the obligation cannot be altered and persist in the altered form. A relative obligation, being created by the parties, who in creating it settled its terms, it can never exist as the same obligation with altered terms. The parties may, to be sure, modify their obligations by mutual consent, but only by extinguishing the old obligation and creating a new one; and the creditor may assign it, but only by a contract that the assignee shall enjoy the profit of it.

At the maturity of the obligation it, like a single absolute obligation, must either be performed or destroyed; and if it is destroyed, the law is no more concerned with it as a relative obligation, although, as will be seen, it creates a right of action for its breach.

§ 8A.24. Quasi-Contracts. — The relative right which for want of a better name may be called a right of quasi-contract arises when one man is by law obliged to pay money to another, though no agreement has been made to do so, because of circumstances which make such payment proper. Among instances of this sort are obligations to pay salvage or average; to return an unjust enrichment; to pay for services properly rendered in an emergency. The primary obligation in such a case is not performable at any fixed time; but at least upon demand (and this may be made by the act of bringing suit) the obligation matures and unless fulfilled is violated.


§ 8A.25. The Nature of Secondary Rights. — Secondary rights arise upon the interference with or destruction of primary rights. The law does not generally undertake by preventive measures to guard against the destruction of primary rights of individuals; but it safeguards those rights by providing, in case of destruction, a substitute for them. A wrongdoer, according to the theory of the law, can gain nothing by his wrong, nor can the injured party really lose; and the law assumes that this will be enough to prevent all preventable wrongdoing. A certain amount of wrongdoing can be prevented neither by preventive nor by retributive measures, as the history of the criminal law shows; and the machinery of the law for preventing wrongdoing by the comparatively inexpensive method adopted seems on the whole to have proved successful.

§ 8A.26. Rights of Redress or Restoration. — Wrongs to static rights may be of two sorts: by dispossession or by destruction; wrongs to dynamic rights can only be by destruction. Wrongs of dispossession call for a remedy which shall give restoration of possession; wrongs of destruction, however, are incapable of being repaired in kind, and must be redressed in some other way. Each of these methods of remedying wrong will be considered in the succeeding sections. But before there can be a remedy there must be a right; and it is the business of the law, upon a wrong being committed, to furnish a right to take the place of that infringed. This right is assumed to be such an equivalent of the injury that by reason of it the injured party will be kept whole. In case of dispossession, the law creates a right of repossession; in case of destruction, it creates a right to compensation. When the right destroyed is that of an individual the compensation takes the form of damages, which are so measured as to be the nearest possible pecuniary equivalent of the right destroyed.

This right to damages needs a word of further explanation.

It is, as has been seen, a secondary, not a remedial right; and the size of it is a matter concerning the nature of this secondary right, and has nothing to do with the remedy offered for enforcing it. The effort of the law is not merely to create a right to damages, but to create a right which shall be the equivalent of the right destroyed.


§ 8A.27. The Nature of Remedial Rights. — The law, as has been seen, deals with a wrong by creating, as a result of it, a secondary right; and it enforces the secondary right, first by a right to sue for satisfaction of it, and next by giving a judgment as a result of the suit. Thus the destruction of a primary right results in a secondary right; the failure to fulfill a secondary right in a right to sue; the right to sue, when exercised, in a judgment. In this way the law creates right succeeding right, in an effort to keep the peace and enforce the requirements of justice without the resort to force. If this effort fails, and the wrongdoer finally fails to satisfy the judgment right, the law for the first time regularly interferes forcibly, by requiring the executive to force the wrongdoer to fulfill his judgment obligation.

This succession of right upon right is not always recognized. It is often said, for instance, that a court of law sits to redress wrong; and that it will or should act whenever a wrong has been proved. "Every wrong has its remedy" has even become a maxim, and represents the common view of those who have not especially considered the question. And yet it must be clear, from every consideration of justice and from every detail of practice, that a court can give a man only what the law has already given him a right to receive. That the right to damages must precede the suit for and recovery of damages is well settled. Thus, as Blackstone says, "The primary right to a satisfaction for injuries is given by the law of nature, and the suit is only the means of ascertaining and recovering that satisfaction. . . . The injured party has unquestionably a vague and indeterminate right to some damages or other, the instant he receives the injury." [l]

[1] 2 Bl. Com. 438.

The English Court of Appeal, by overlooking this fact, reached an apparently erroneous result in the case of Machado v. Fontes.[1] That was an action for damages for a libel upon the plaintiff, contained in a pamphlet published by the defendant in Brazil. The defendant offered a plea alleging that a libel "cannot be the ground of legal proceedings against the defendant in Brazil in which damages can be recovered"; which was explained to mean that a libel in Brazil creates no right to damages, but is only a crime. The court, however, refused to allow the plea; on the ground that since the act was a wrong in Brazil the proper remedy for it in England was by an action of tort. The Lord Justice Rigby said: "The act in question is prima facie actionable here, and the only thing we have to do is to see whether there is any peremptory bar to our jurisdiction arising from the fact that the act we are dealing with is authorized, or innocent or excusable, in the country where it was committed."

This case, and the doctrine laid down in it, will be fully discussed in a later chapter.

§ 8A.28. Right to Sue and to Be Satisfied. — When a static right has been taken away from its owner by a wrongful act, and a right of repossession is created by the law to take its place, the owner needs a remedy which will give him restoration of it. Not all such wrongs have been provided by our law with this sort of remedy; in many cases of dispossession of chattels, for instance, no remedy is provided by the common law. But usually such a remedy exists: in the case of outlawry (in the old law) by the process of inlawry; in the case of denial of or interference with marriage, by a suit for restitution of conjugal rights; in case of intrusion upon a public office, by writ of quo warranto; in case of land, by a real action; in case of bailment of property, by an action of detinue; in case of taking of property, by an action of replevin or by a bill in equity for restitution; in case of denial of performance of a contract, by a bill for specific performance. In each of these cases, the remedy is given as a separate right; and as has been seen it may be withheld. For instance, upon dispossession of a chattel by a wrongful act a right of repossession is always created, though at common law, as has been seen, a remedial right is not always granted. Under proper circumstances, however, the right of repossession may confer on the owner the legal privilege of retaking it from the dispossessor.

Where a dynamic right (or an entire series of dynamic rights, as in case of the destruction of a thing) has been de-

[1] Machado v. Fontes, [1897] 2 Q. B. 231.

stroyed, and a right of redress has been created to take its place, a law will probably give effect to this right by a right of action to recover the damages; but this right of action, again, is quite independent of the right to damages.

The affording of a remedial right, being independent of the secondary right, is a matter solely to be determined by the sovereign from whom the remedy is demanded; in other words, the allowance of a remedy, the methods of carrying on the suit, the judgment, and the execution, are matters entirely for the law of the forum sought by the complaining party.


Topic 1. Definition and Character of Jurisdiction

Section 42.1. Jurisdiction: How Determined.

Section 42.2. Distinction between Jurisdiction and Power.

Section 43.1. Effect of Constitution and Power of the States.

Section 43.2. The Commerce Clause.

Section 43.3. The Full Faith and Credit Clause.

Section 43.4. The Fourteenth Amendment.

Section 44.1. General Extent of Jurisdiction.

Section 44.2. Limitation on Jurisdiction of a State.

Section 44.3. Concurrent Jurisdiction.

Section 44.4. Conflicting Exercise of Jurisdiction.

Section 44.5. Jurisdiction Limited to River Traffic.

Section 44.6. Jurisdiction over Border Seas.

Section 44.7. Jurisdiction over Harbors.

Section 44.8. Jurisdiction over the Air.

Section 45.1. Application of the "Law of the Flag" in the United States.

Section 45.2. Jurisdiction over Vessels on the High Seas.

Section 45.3. Vessels Navigating Territorial Waters.

Section 45.4. Vessel in a Foreign Harbor.

Topic 2. The Subjects of Jurisdiction

Title A. General Principles

Section 46.1. Exercise of Jurisdiction by Creating Rights. Section 46.2. Persons and Things in Which Rights Are Created.

Title B. Jurisdiction over Persons

Section 47.1. General Principles of Jurisdiction over Person.

Section 47.2. Jurisdiction over Absent Nationals.

Title C. Jurisdiction over Things

Section 48.1. Jurisdiction over Land and Things Annexed to Land.

Section 49.1. Jurisdiction over a Chattel.

Section 50.1. Jurisdiction over the Title to Property.

Section 50.2. Chattel Removed without Owner's Consent.

Section 50.3. Jurisdictional Aspect of the Problem.

Section 50.4. Merger of Chattel in Document.

Section 50.5. Jurisdiction over Chattel in Another State.

Section 51.1. Jurisdiction over Intangibles.

Section 52.1. Documents.

Section 53.1. Nature of Share in a Corporation and Certificate.

Title D. Jurisdiction over Status Section 54.1. Domestic and Other Status.

Topic 3. Instrumentalities for Exercising Jurisdiction

Title A. Executive Jurisdiction

Section 56.1. Nature and Extent of Executive Power.

Section 57.1. Acts Not Requiring Official Authority.

Section 58.1. Extra-Territorial Exercise of Vested Rights.

Title B. Legislative Jurisdiction

Section 59.1. The Meaning of Legislative Jurisdiction.

Section 59.2. The Extent of Law.

Section 60.1. Requisites of Legislative Action.

Section 60.2. Non-Legislative Action by the Legislature.

Section 60.3. The Effect Abroad of Non-Legislative Acts of Legislature.

Section 61.1. No Jurisdiction within the Boundaries of Another State.

Section 61.2. The Clapper Case.

Section 63.1. Jurisdiction over Citizens Abroad.

Section 65.1. Acts the Consequences of Which Extend over a State Line.

Section 65.2. Action through a Chosen Instrument.

Section 65.3. Action through the Course of Events.

Section 65.4. Remote Consequence of Defendant's Act.

Section 66.1. Action by the Communication of Intelligence.

Section 67.1. Action through a Human Agent.

Section 70.1. Consequences of Violation of a Legal Duty.

Topic 1. Definition and Character of Jurisdiction

§42.1. Jurisdiction: How Determined. — Jurisdiction, as the word is here used, is the power of a state to create rights such as will be recognized by other states as valid; it is a common conception of all nations, but the rules for determining it are to some extent different in states governed by the civil law and in those governed by the common law. Under the civil law of a considerable part of Europe, for instance, personal status is determined by the law of the nationality of the person concerned; under the common law, by the law of his domicil. Some civil-law states do not recognize that the courts of a foreign state can adjudicate against their citizens, though domiciled in that state; but in a state governed by the common law the state of domicil is allowed jurisdiction. The determination of jurisdiction, therefore, is with us a question of our own common law, and not of a generally accepted doctrine of the law of all nations.

It is clear that many rights seldom, if ever, come to be recognized in another state; such rights are rights to criminal redress or to the payment of a tax. The jurisdiction to create the right, however, exists irrespective of the probability in the particular case of any foreign state having occasion to

recognize it, provided the circumstances exist which are sufficient to give jurisdiction in the ordinary case. Nor is it necessary that the right should be enforcible in any other state. A state may not enforce certain classes of foreign rights though it recognizes, if occasion presents itself, the jurisdictional validity of the rights.

Since by the definition given a state has no jurisdiction unless the exercise of its power will be recognized by other states as valid, it follows that no one state may, by statute or otherwise, increase its jurisdiction beyond bounds previously set by the common law, without the concurrence of other states; since if it attempted to do so its acts would not be recognized in those other states.

Jurisdiction, then, is fixed by the common law; but the principles so established, unlike other principles of the common law, are incapable of change by statute. They can be changed only by the slow process of change of legal thought which alone can alter the general system of the common law, or by the concurrent act of the states concerned.

§ 42.2. Distinction between Jurisdiction and Power. — A distinction must be sharply drawn between jurisdiction, that is, the power of a state to create rights that will be recognized abroad, and its power to act as it pleases within its own territory. A state may do less than other states will uphold it in doing. A state may, for instance, decline to impose a tax or to grant a divorce which the principles of law governing jurisdiction would allow it to impose or to grant. On the other hand, it may undertake to do more than the principles of jurisdiction allow it to do. For instance, suppose the legislature (not hampered by a constitution) should direct the courts to render personal judgments against absent and non-consenting persons who were neither citizens of the state nor domiciled in it: something beyond the jurisdiction of legislature to order or court to do, according to the accepted doctrine of the common law governing jurisdiction. The courts would be obliged to obey the legislature, although aware that their action would receive no recognition from any other country.

Precisely this question was discussed by Mr. Justice Blackburn in Schibsby v. Westenholz.[1] In that case a French court

[1] Schibsby v. Westenholz, L. R. 6 Q. B. 155, 159 (1870).

had given judgment against an absent foreigner, under a provision of their own code, and the English court was asked to enforce the judgment. In answer to an objection that the French court was without jurisdiction to render the decree, in spite of the provision of the code, the English court was confronted with a provision of the British Common Law Procedure Act, which provided for judgments in similar cases by the British courts. As to this argument, Blackburn said:

"Should a foreigner be sued under the provisions of the statute referred to, and then come to the courts of this country and desire to be discharged, the only question which our courts could entertain would be whether the Acts of the British legislature, rightly construed, gave us jurisdiction over this foreigner, for we must obey them. But if, judgment being given against him in our courts, an action were brought upon it in the courts of the United States (where the law as to the enforcing foreign judgments is the same as our own), a further question would be open, viz., not only whether the British legislature had given the English courts jurisdiction over the defendant, but whether he was under any obligation which the American courts could recognize to submit to the jurisdiction thus created. This is precisely the question which we have now to determine with regard to a jurisdiction assumed by the French jurisprudence over foreigners."

Such a decree, rendered without jurisdiction over the defendant, voices a command of the sovereign, whose will expressed through legal channels is undoubtedly law; the command, however, will receive no recognition elsewhere.

Can the defendant, subsequently coming within the territory of the sovereign, be held to pay the amount of the judgment? If there is no constitutional provision limiting the power to make such a decree, the answer must certainly be, yes. By entering the territory the foreigner submits to the state; and if the state decree that he pay money he must assuredly do so. In a case of this sort, therefore, the state (unless limited by a constitution) has power to create a right which will be recognized within the state only.

If, on the other hand, the arbitrary exaction of a money payment is forbidden by a constitution of the American type, the decree cannot be enforced against the foreigner even upon his coming within the jurisdiction. Thus, in the important case of Pennoyer v. Neff,[1] Mr. Justice Field said:

[1] Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565 (1877).

"If the court has no jurisdiction over the person of the defendant by reason of his non-residence, and, consequently, no authority to pass upon his personal rights and obligations; if the whole proceeding, without service upon him or his appearance, is coram non judice and void; if to hold a defendant bound by such a judgment is contrary to the first principles of justice — it is difficult to see how the judgment can legitimately have any force within the State. The language used can be justified only on the ground that there was no mode of directly reviewing such judgment or impeaching its validity within the State where rendered; and that, therefore, it could be called in question only when its enforcement was elsewhere attempted. In later cases, this language is repeated with less frequency than formerly, it beginning to be considered, as it always ought to have been, that a judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullity, because rendered without any jurisdiction of the tribunal over the party, is not entitled to any respect in the State where rendered."

§ 43.1. Effect of Constitution on Power of the States. —

The effect of the Constitution of the United States on the power of a State to create legal rights is not a part of the Conflict of Laws; but whenever, as in this instance, the Constitution reënacts, and places beyond the power of a State to change, the conflict-of-laws principles of the common law, it must be considered in any Treatise on the Conflict of Laws.

Cases where the Constitution has been held to limit the ability of the States to extend their power beyond the limits of their jurisdiction will be found in the succeeding chapters. No general treatment of questions of interpretation of the Constitution can here be entered upon. But it is worth while to enumerate some constitutional provisions which confine the States within their jurisdiction, and to give examples of this application of the provisions.

§ 43.2. The Commerce Clause. — "The Congress shall have power to regulate commerce with foreign Nations, and among the several states, and with the Indian Tribes." [1] Under this clause, it has been held that the taxation of property engaged in interstate commerce which it is beyond the jurisdiction of a State to tax is unconstitutional.[2] It is quite possible that the commerce clause may in some cases restrain a State from doing acts which would lie within the jurisdiction of the State; but

[1] Const. U. S., Art. I, § 8, par. 3.

[2] Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 5

Sup. 826 (1885); Coe v. Errol, 116 U. S. 517, 29 L. ed. 715, 6 Sup. 475 (1886).

this treatise is concerned only with cases where the commerce clause is applicable because jurisdiction is lacking.

§ 43.3. The Full Faith and Credit Clause. — "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."[1] Under this provision, it has been held that a judgment rendered by a State court which it was beyond the jurisdiction of the State to render is not entitled to full faith and credit in another State,[2] while a judgment which it was within the jurisdiction of the State to render is so entitled.[3]

§ 43.4. The Fourteenth Amendment. — " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; or deny to any person within its jurisdiction the equal protection of the laws." [4] Under this provision, it has been held unconstitutional to impose a tax which it is outside the jurisdiction of the State to impose,[5] or to render a judgment which it is outside the jurisdiction of the State to render.[6]

§44.1. General Extent of Jurisdiction. — The jurisdiction of a state extends throughout its own territories. What constitutes the territories of a state is a political fact, and this fact, in so far as the territories in question lie within its physical power, is determined by the expression of its will. In other words, the limits of territory are fixable by statute, in so far as the statute does not trench upon the rights of another state.[7]

Within its territory the jurisdiction of the state is exclusive, except indeed in so far as it may by its law permit the exercise

[1] Const. U. S., Art. IV, § 1.

[2] Dull v. Blackman, 169 U. S. 243, 42 L. ed. 733, 18 Sup. 333 (1898).

[3] Pauntleroy v. Lum, 210 U. S. 230, 28 Sup. 641, 52 L. ed. 1039 (1908).

[4] Const. U. S. Amend., Art. XIV, § 1. For a similar limitation on the power of the federal government, see Amend., Art. V.

[5] Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 50 L. ed. 150, 26 Sup. 36, 4 Ann. Cas. 493 (1905); Buck v. Beach, 206 U. S. 392, 51 L. ed. 1106, 27 Sup. 712, 11 Ann. Cas. 732 (1907); Dewey v. Des Moines, 173 U. S. 193, 43 L. ed. 665, 19 Sup. 379 (1899).

[6] Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565 (1877).

[7] Commonwealth v. Manchester, 152 Mass. 230, 25 N. E. 113, affd. Manchester v. Massachusetts, 139 U. S. 240, 35 L. ed. 159, 11 Sup. 560 (1890); Regina v. Keyn, 2 Ex. Div. 63 (1876).

of jurisdiction by another state. In the often-quoted language of Chief Justice Marshall in Schooner Exchange v. M'Faddon:[1]

"The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source."

§ 44.2. Limitation on Jurisdiction of a State. — The principles limiting jurisdiction are in part based on provisions of the law of nations: such as those that in some particulars exempt from the jurisdiction of a state the ambassador and embassy and the war vessels of another state. These exemptions, falling under Public International Law, are beyond the scope of this treatise.

§ 44.3. Concurrent Jurisdiction. — In several cases, two States divided by a river exercise concurrent jurisdiction over the river, no matter where the inter-state boundary may be; in some cases by the Ordinance of 1787 for organizing Territories northwest of the Ohio River, in some cases by Acts of Congress organizing Territories or admitting States, and in some cases by agreements between the States concerned. While these provisions differ to some extent in their wording they really present a single question of interpretation; and whatever the exact language, they are subject to the same rules.

In spite of doubts expressed in some early cases, the concurrent jurisdiction has been interpreted as meaning jurisdiction in the fullest sense. Wedding v. Meyler [2] was an appeal from a decision of the Kentucky Court of Appeals, in which Judge White had expressed the opinion that the jurisdiction conferred on the states was only legislative jurisdiction. In the Supreme Court of the United States, Mr. Justice Holmes said:

"What the Virginia compact most certainly conferred on the States north of the Ohio, was the right to administer the law below low-water mark on

[1] Schooner Exchange v. M'Faddon, 7 Cranch, 116 (1812).

[2] Wedding v. Meyler, 192 U. S. 573, 584, 48 L. ed. 570, 24 Sup. 322 (1904), reversing Meyler v. Wedding, 107 Ky. 310, 53 S. W. 809 (1899).

the river, and, as part of that right, the right to serve process there with effect.[1] What more jurisdiction, as used in the statute, may embrace, or what law or laws properly would determine the civil or criminal effect of acts done upon the river we have no occasion to decide in this case. But so far as applicable we adopt the statement of Chief Justice Robertson, in Arnold v. Shields:[2] 'Jurisdiction, unqualified, being as it is, the sovereign authority to make, decide on and execute laws, a concurrence of jurisdiction, therefore, must entitle Indiana to as much power — legislative, judiciary, and executive, as that possessed by Kentucky over so much of the Ohio River as flows between them.'"

In accordance with the doctrine of this case, the courts of either State, each applying its own law, have redressed civil injuries and punished crimes committed upon that part of the river within the boundaries of the other State,[3] such, for instance, as violations of its own license laws;[4] each has applied its own statute imposing liability for death by wrongful act to a death caused anywhere on the river,[5] has licensed the erection of a bridge or dam,[6] and has served its process anywhere on the river.[7] Neither State will, however, punish an offense against the other.[8]

The inconveniences of such concurrent jurisdiction "are obvious, and do not need to be stated. We have nothing to do with them when the law-making power has spoken." [9] They are, to be sure, more troublesome theoretically than

[1] Citing State v. Mullen, 35 Ia. 199, 205 (1872).

[2] Arnold v. Shields, 5 Dana, 18, 22 (Ky. 1837).

[3] Civil injuries: (Collision); Wiggins Ferry Co. v. Redding, 24 Ill. App. 260 (1887); Crimes: Carlisle v. State, 32 Ind. 55 (1869); Dugan v. State, 125 Ind. 130, 25 N. E. 171, 9 L. R. A. 321 (1890); State v. Mullen, 35 Ia. 199 (1872); Lemore v. Commonwealth, 127 Ky. 480, 32 Ky. L. 387, 105 S. W. 930 (1907); State v. Cunningham, 102 Miss. 237, 59 S. 76 (1912); State v. Metcalf, 65 Mo. App. 681 (1896); State v. Cameron, 2 Pin. 490, 2 Chandler, 172 (Wis. 1850).

[4] Welsh v. State, 126 Ind. 71, 25 N. E. 883 (1890); State v. Seagraves, 111 Mo. App. 353, 85 S. W. 925 (1905).

[5] Memphis & C. P. Co. v. Pikey, 142 Ind. 304, 40 N. E. 527 (1895); Sherlock v. Ailing, 44 Ind. 184 (1873), affd. 93 U. S. 99, 23 L. ed. 819 (1876); Opsahl v. Judd, 30 Minn. 126, 14 N. W. 575 (1883); Sanders v. St. Louis & N. O. A. Line, 97 Mo. 26, 10 S. W. 595 (1888); Carlin v. New York, N. H. & H. R. R., 135 A. D. 876, 120 N. Y. S. 261 (1909).

[6] J. S. Keator Lumber Co. v. St. Croix Boom Corp., 72 Wis. 62, 38 N. W. 529 (1888).

[7] Wedding v. Meyler, 192 U. S. 573, 48 L. ed. 570, 24 Sup. 322 (1904).

[8] State v. Cunningham, 102 Miss. 237, 59 S. 76 (1912).

[9] Holmes, J., in Wedding v. Meyler, 192 U. S. 573, 585, 48 L. ed. 570, 24 Sup. 322 (1904).

practically.[1] For most purposes, rules worked out for the exercise of concurrent judicial jurisdiction would sufficiently obviate interstate strife. As Judge Pillsbury said, in Wiggins Ferry Co. v. Reading:[2]

"Undoubtedly it would be held that the judicial tribunal first taking cognizance of the cause would, under well established and understood principles, retain its jurisdiction to the end of the controversy, applying the law of the forum to the facts of the case in settling the rights of the parties."

§ 44.4. Conflicting Exercise of Jurisdiction. — Where there is such concurrent jurisdiction over a river, conflicts may arise in the exercise of it. An act forbidden by one State may be licensed by another; and action under such license of one State may be prosecuted as a crime against the other. It was held in a State court that an act within the territory of the licensing State might be punished by the courts of the other State, which had not granted the license required by its own law.[3] The Supreme Court of the United States has reached the opposite conclusion. A license for fishing by a seine was granted by the State of Washington, and was exercised in the Columbia River on the Washington side of the boundary line. The act was prosecuted and the defendant convicted in an Oregon court as a violator of the Oregon law, that State having concurrent jurisdiction with Washington on the river. On error to the Supreme Court of the United States it was held that the prosecution would not lie.[4] That the court did not place this on any ground inconsistent with the ordinary doctrine is shown by the language of Mr. Justice Brewer:

"Whether, if the act of the plaintiff-in-error had been done within the territorial limits of the State of Oregon, it would make any difference we need not determine, nor whether, in the absence of any legislation by the State of Washington, authorizing the act, Oregon could enforce its statute against the act done anywhere upon the waters of the Columbia."

The legislative jurisdiction of one State within the territory of the other must therefore be exercised in conformity

[1] "In many years, no practical inconvenience has resulted from the concurrent jurisdiction exercised by Kentucky and Indiana on the river." Hobson, J., in Meyler v. Wedding, 107 Ky. 685, 53 S. W. 809 (1899).

[2] Wiggins Ferry Co. v. Redding, 24 Ill. App. 260, 265 (1887).

[3] State v. Moyers, 155 Ia. 678, 136 N. W. 896 (1912).

[4] Nielsen v. Oregon, 212 U. S. 315, 321, 53 L. ed. 528, 29 Sup. 383 (1909).

with, though not necessarily identically with the law of that State. This constitutes a limitation on the extent of the jurisdiction that may be exercised.

§ 44.5. Jurisdiction Limited to River Traffic. — In Central Railroad v. Jersey City [1] the boundary between New York and New Jersey was the middle of the Hudson River, but New York was given jurisdiction over the whole river. New Jersey levied a tax upon land in the river. This tax was held valid. Mr. Justice Holmes said that each State possessed sovereignty within its own boundaries; and that the jurisdiction granted to New York must mean something less than sovereignty. He quoted from an earlier case a definition of jurisdiction: "jurisdictio, authority to apply the law to the acts of men."

In Mississippi & Missouri Railroad v. Ward [2] it was held to be beyond the jurisdiction of the Iowa courts to deal with an obstruction to navigation caused by the building of a bridge on the Illinois side of the river. The authority of the case is, however, weakened by the fact that the court did not consider the provision for concurrent jurisdiction now under discussion. In Gilbert v. Moline Water Power & Manufacturing Co.,[3] the Iowa court refused to enjoin the obstruction of the river by a dam on the Illinois side. One reason for the court's action was that the laws of Iowa could not "bind or affect property out of or beyond our territorial limits"; the joint jurisdiction granted by the act of Congress being confined to policing the floating river-life. There was, however, another ground on which the decision could have been put.

In State v. George [4] the defendant was indicted in Minnesota for an offence committed on a bridge over the Mississippi River. The precise spot was over an island which was situated on the Wisconsin side of the boundary. It was argued that this was not an offence "on" the river, and was therefore not within the concurrent jurisdiction of Minnesota. The court, however, held that the indictment would lie. The reason is a

[1] Central Railroad v. Jersey City, 209 U. S. 473, 52 L. ed. 896, 28 Sup. 592 (1908).

[2] Mississippi & M. R. R. v. Ward, 2 Black (67 U. S.), 485, 17 L. ed. 311 (1862).

[3] Gilbert v. Moline W. P. & N. Co., 19 Ia. 319, 321 (1866).

[4] State v. George, 60 Minn. 503, 63 N. W. 100 (1895).

suggestive, though, it is submitted, an untenable one; that passage over the bridge is as much a part of the river traffic as passage over the river on a ferryboat would be. The opposite result was reached in Columbia River Packers' Association v. M'Gowan,[1] where nets were set in the Columbia River, attached to an island within the territory of Oregon. It was held that Washington had no jurisdiction over the act, on the ground that jurisdiction over the river does not extend to things done on land. This decision was affirmed by the Supreme Court of the United States, on appeal, the court saying that "on the Columbia," the phrase used in the statute which created the jurisdiction, "did not reach the bed of the stream." [2]

The preferable interpretation of the provision for concurrent jurisdiction is that it should be confined, as suggested in a case already noticed,[3] to river traffic. In the case of Central Railroad v. Jersey City [4] the jurisdiction granted to New York was expressly extended to the islands in the river; but it was intimated that this was to be exercised only in connection with navigation. In Columbia River Packers' Association v. M'Gowan,[5] where the objects of legislation were nets and floats in and upon the water, anchored to stones upon the river-bottom, the court allowed jurisdiction because directed against things floating on the water, while admitting that it could not be exercised over the stone anchors. It has been seen that the concurrent jurisdiction cannot be exercised over bridges or dams attached to a bank; but it has been held that it may be exercised over a boat floating in the water but attached to land within the boundaries of the other State.[6] It is submitted that the distinction can be explained only on the ground that the boat floats on the river, and uses it as a carrying force, while the bridge or dam rests entirely on the land-

§ 44.6. Jurisdiction over Border Seas. — The chief limitation of a state's jurisdiction over its own territory is the limita-

[1] Columbia R. P. Assoc, v. M'Gowan, 219 F. 365 (1914).

[2] M'Gowan v. Columbia R. P. Assoc., 245 U. S. 352, 38 Sup. 129, 62 L. ed. 342 (1917).

[3] Gilbert v. Moline W. P. & N. Co., 19 Ia. 319 (1866).

[4] Central Railroad v. Jersey City, 209 U. S. 473, 52 L. ed. 896, 28 Sup. 592 (1909).

[5] Columbia R. P. Assoc. v. M'Gowan, 172 F. 991 (1909).

[6] Sanders v. St. Louis & N. O. A. Line, 97 Mo. 26, 10 S. W. 595 (1888); State v. Plants, 25 W. Va. 119 (1884).

tion of its jurisdiction over border seas. Where a state is bounded by the ocean, international law permits the inclusion within the territory of a strip of border sea, extending outward for at least three miles and, modern authorities agree, much further. It is generally believed that this doctrine of international law itself determines the extent of territory of the sovereign of the coast. An important case in England held the contrary, deciding that until the sovereign has expressed his will to occupy this territory it is not within his jurisdiction.[1] But it was admitted that a statutory extension of jurisdiction over the littoral seas would bring them within the territory of the sovereign.

Whatever may be true of the sea, the land under the sea may be regarded as vacant land subject to title by occupation on the part of any sovereign who is in a position legally to occupy it. Thus the sovereign of the shore may occupy the land under the sea adjoining the coast by opening a mine in the land, and in such a case the mine becomes part of his territory; [2] and the same thing would doubtless be true of a tunnel extended below the sea.

When the territory of the state includes the "maritime belt" it is clear that it may exercise all ordinary rights of sovereignty within it. Thus it has been held that it may control the fisheries both of free-swimming and of shell fish; [3] and in an international arbitration case it was held that it may grant a monopoly within the belt of towage to and from its harbors.[4] In this arbitration Mr. Commissioner Bainbridge said:

"The right of the Government of Venezuela to grant the franchise in question, by virtue of its proprietary interest in and exclusive jurisdiction over its territorial waters, is indisputable."

But notwithstanding its jurisdiction over the maritime belt, the state's jurisdiction is limited by the fact that the littoral

[1] Regina v. Keyn, 2 Ex. Div. 63 (1876).

[2] "Beyond low-water mark the bed of the sea might, I should have thought, be said to be unappropriated, and, if capable of being appropriated, would become the property of the first occupier." Cockburn, C. J., in Regina v. Keyn, 2 Ex. Div. 63, 199 (1876).

[3] Manchester v. Massachusetts, 139 U. S. 240, 35 L. ed. 159, 11 Sup. 559 (1891).

[4] The Mark Gray Case, Ralston's Venezuela Arbitration, 33.

seas are part of the highway of nations, and the jurisdiction to extend law within the three mile limit cannot be so used as to create an obstacle to navigation. The jurisdiction to regulate fishing is indubitable, so is the jurisdiction to police the strip against acts inimical to the state. But no jurisdiction exists to regulate internal affairs on a passing vessel.[1]

§ 44.7. Jurisdiction over Harbors. — International law gives no right to navigate harbors and enclosed bays; and as to such waters the territorial law may be extended over foreigners as well as subjects.[2] The question was much discussed in two cases in which an attempt was made to apply the territorial patent law to foreign vessels navigating domestic waters.

Caldwell v. Van Vlissengen [3] was a motion for an injunction against using a patented propeller "within the limits of that part of the United Kingdom called England . . . including the seas, rivers and havens thereof." It is to be noticed that at this time, before the statute extending the boundaries over the three-mile limit, the Court of Chancery was not authorized to exercise jurisdiction over the littoral seas, and the phrase "within the limits" of England must be understood to exclude the waters of the three-mile limit; the action of the court therefore applied only to harbors or other intra-territorial waters. The Vice-Chancellor Turner, having stated what he took to be the universal rule that foreigners are in all cases subject to the laws of the country in which they may happen to be, added, "These defendants, therefore, whilst in this country, must, I think, be subject to its laws. It is to be considered then what are the laws of this country with reference to the rights of patentees." The court held that the patent laws extended to vessels navigating territorial waters.

In the very similar case of Brown v. Duchesne [4] the Supreme Court of the United States gave an opposite interpretation to the patent statute, holding that the United States patent laws did not apply to a foreign vessel using a patented gaff in an

[1] The law which prevails on a vessel on the high seas is discussed, post, § 45.2.

[2] Patterson v. Bark Eudora, 190 U. S. 169, 47 L. ed. 1002, 23 Sup. 821 (1903); Forbes v. Cochrane, 2 B. & C. 448 (1824), per Best, J.

[3] Caldwell v. Van Vlissengen, 9 Hare, 415, 426 (1861).

[4] Brown v. Duchesne, 19 How. 183 (1856).

American port. Mr. Chief Justice Taney said: "Undoubtedly every person who is found within the limits of a Government, whether for temporary purposes or as a resident, is bound by its laws. . . . The court is of opinion that cases of that kind were not in the contemplation of Congress in enacting the patent laws, and cannot, upon any sound construction, be regarded as embraced in them." The court, in other words, admitted the jurisdiction of the sovereign to extend his law over the foreign vessels in port; but interpreted this law as not so extended where the patented article had no permanent situs in the territory, but was present merely temporarily.

§ 44.8. Jurisdiction over the Air. — It is only within recent years that jurisdiction over the air has become important; but since aircraft and wireless communication through the air have come to be regular vehicles of commerce, the jurisdiction of the state over the superjacent air is a thing of great moment to all nations. There are few, if any, decisions on the subject, but there is a mass of literature on it.[1]

The analogy of the superjacent air to the border seas is a close one; and the same boundary of jurisdiction should be fixed. In all that concerns the peace and safety of the subjacent land and in the regulation of all aerial acts that do not have to do with navigation of the air and the communication of intelligence, the jurisdiction of the state within whose vertically prolonged boundaries the air lies is complete. The state, however, has no jurisdiction to interfere with the peaceful commerce of the air, or with the purely internal affairs of passing aircraft. An airship landing within the state (unless

[1] Only literature in English will be considered.

(a) General treatises: Hazeltine, H. D.: The Law of the Air, London, 1911; Richards, Sir H. E.: Sovereignty over the Air, Oxford, 1912; Spraight, J. M.: Aircraft in Peace and the Law, London, 1919.

(b) Treaties, etc.: International Air Navigation (Convention of the Allied and Associated Powers, provided for by the Treaty of Versailles), Washington, 1919; Woodhouse, H.: Textbook of Aerial Laws, New York, 1920.

(c) Articles in Periodicals: Baldwin, L.: Law of the Air-Ship, 4 Amer. Jour. Int. Law, 95 (1910); Bogert, G. G.: Problems in Aviation Law, 6 Cornell L. Q. 271 (1921); Lee, B.: Sovereignty of the Air, 7 Amer. Jour. Int. Law, 470 (1913); Myers, D. P.: The Practical Solution of the Problem of Sovereignty in Aerial Law, 26 Green Bag, 57 (1914); Wilson, G. G.: Aerial Jurisdiction, 5 Amer. Pol. Sci. Quart. 171 (1911).

driven down by the weather or by accident) is within the jurisdiction of the state.

The serious problem of interference with communication through the air is solvable by action of the state only with respect to acts of interference within the state; as to interferences originating in other states or in passing aircraft the state is without jurisdiction, and the evil can be prevented only by international action.

§ 45.1. Application of the "Law of the Flag" in the United States. — The rule, when stated in the terms ordinarily used, needs explanation when applied to an American vessel. The law in the United States, as has been seen,[1] differs in each State, territory and district; yet all American vessels fly the flag of the United States. The law prevailing upon such vessels is the law of their port of registry, which is the port nearest to the domicils of the majority of the owners.[2]

The reason sometimes given for the rule is that the vessel forms in law part of the territory of the state of registry.[3] This is as unsound as it is untrue. The correct explanation is that the law of the state of registry extends over the vessel because of the jurisdiction of the state over it as a portion of the property belonging in the state.[4]

§ 45.2. Jurisdiction over Vessels on the High Seas. — While a vessel is navigating the high seas it is under the control of "the law of the flag," that is, the law of the state whose flag it flies. Acts done on the vessel have legal effect according to that law; for instance, the law of the flag may make an act done on the vessel criminal,[5] or it may give a right of action for a tort.[6] The law of the flag would determine the validity

[1] Ante, § 2.3.

[2] Crapo v. Kelly, 16 Wall. 610 (1872); McDonald v. Mallory, 77 N. Y. 546 (1879).

[3] "The ship was a portion of the territory of Massachusetts." Hunt, J., in Crapo v. Kelly, 16 Wall. 610, 624 (1872).

[4] "The statement sometimes made that a merchant ship is a part of the territory of the country whose flag she flies ... is a figure of speech, a metaphor. . . . The jurisdiction which it is intended to describe arises out of the nationality of the ship, as established by her domicil, registry and use of the flag, and partakes more of the characteristics of personal than of territorial sovereignty." Van Devanter, J., in Cunard S. S. Co. v. Mellon, 262 U. S. 100, 123, 43 Sup. 504, 507, 67 L. ed. 894 (1923).

[5] Reg. v. Armstrong, 13 Cox C. C. 184 (1875).

[6] McDonald v. Mallory, 77 N. Y. 546 (1879).

of a marriage ceremony performed on the vessel,[1] and other legal transactions.[2]

When two vessels collide on the high seas, it is, of course, difficult to determine the law that prevails. The doctrine, however, which is best established at common law is in accordance with the general principle already stated: that the law of the vessel on which the offence was committed shall govern the offence.[3]

§ 45.3. Vessels Navigating Territorial Waters. — When a vessel is coasting along the shore of a foreign country within the three-mile limit of its territory, it is exercising an international right of way; and so long as it does not interfere with the peace of the state the waters of which it is navigating, the law of the flag continues to control its affairs. The jurisdiction of the state whose waters it is navigating has already been considered.[4]

§ 45.4. Vessel in a Foreign Harbor. — When, however, a vessel enters a foreign harbor, it becomes subject in all respects to the jurisdiction of the state within whose territory the harbor is situated. As a general rule the law of the flag is still allowed by the latter state to regulate the purely international affairs of the vessel; but in every matter in which the police of the state is concerned, its law extends over and binds all persons upon the vessel.[5]

Since the jurisdiction of the state is complete, it is quite within its power by statute to extend its law over even the merely international affairs of the vessel; and it becomes, therefore, a question of interpreting the language of the statute to determine whether or not the provisions of the statute had been extended. In Caldwell v. Van Vlissengen[6] the English patent law was held to cover the case of a foreign vessel using a propeller patented in England in navigating an

[1] This result was reached in Norman v. Norman, 121 Cal. 620, 54 P. 143 (1899), though not for the reason given. It was said in that case that there was no law governing a marriage which took place on board a vessel on the high seas.

[2] The insolvency law of a state extends over its vessel on the high seas. Crapo v. Kelly, 16 Wall. 610 (1872).

[3] This question will be discussed, post, Chap. 7.

[4] Ante, § 9.1.

[5] Wildenhus' Case, 120 U. S. 1, 30 L. ed. 565, 7 Sup. 385 (1886).

[6] Caldwell v. Van Vlissengen, 9 Hare, 415 (1851).

English harbor. In Brown v. Duchesne [l] the Supreme Court of the United States held that the American patent law did not prevent the use of a gaff patented in America upon a French merchant vessel in an American harbor. On the other hand, in Patterson v. Bark Eudora,[2] an act of Congress with relation to the payment of seamen's wages was held applicable to a shipment of seamen in an American port on board a vessel for a foreign voyage; in Cunard SS. Co. v. Mellon [3] the act prohibiting the sale of intoxicating liquors was held applicable to a foreign vessel while in an American harbor.

It is somewhat difficult in view of these authorities to find any general rule to determine the interpretation of a statute with respect to its applicability to foreign vessels in the harbor. It is submitted that a sound rule would make it apply either after the vessel was moored in the harbor or if the vessel was engaged in an act which affected the public policy of the state.

Recent cases in the courts of the United States have shown a tendency to extend the laws to ships in the harbor. Nevertheless, they may all be brought within what seems to be the true line of discrimination. It has been pointed out that there is no doubt of the jurisdiction of the United States to extend its law to foreign vessels in the harbors. It is therefore a question of interpretation of the particular statute, and that interpretation must depend in general upon the purpose of the statute and the evil that it is to prevent. So, interpreting the statutes in question, the courts have held that the Seamen's Act, which gave the right to seamen to demand and receive one-half of the wages earned in any port where the vessel should load or discharge cargo, applied to foreign ships in port.[4] The provisions of the National Prohibition Act were held to apply to foreign vessels in a United States port.[5] In a case in the Second Circuit,[6] the provisions of the Shipping Act

[1] Brown v. Duchesne, 19 How. 183 (1857).

[2] Patterson v. Bark Eudora, 190 U. S. 169, 47 L. ed. 1002, 23 Sup. 821 (1903).

[3] Cunard S. S. Co. v. Mellon, 262 U. S. 100, 43 Sup. 504, 67 L. ed. 894 (1923).

[4] Strathearn Steamship Co. v. Dillon,

252 U. S. 348, 64 L. ed. 607, 40 Sup. 350 (1919).

[5] Cunard Steamship Co. v. Mellon, 262 U. S. 100, 67 L. ed. 894, 43 Sup. 504 (1923).

[6] Compagnie Generale Transatlantique v. American Tobacco Co., 31 F. (2d) 663 (1929), cert. den. 280 U. S. 555, 74 L. ed. 611, 50 Sup. 16.

of 1916 were applied to a foreign ship delivering goods in an American port.

Topic 2. The Subjects of Jurisdiction

Title A. General Principles

§ 46.1. Exercise of Jurisdiction by Creating Rights. —

The ultimate end of the law is the creation of rights; for though the law has to do with the protection of rights, it is only indirectly and in a general way that it protects rights, and its method of doing so is by creating other rights. If, for instance, a contract is broken or a tort is committed, the law operates by creating in the injured party another right of equal value with the right which the wrongful act destroyed. If this right of action is in turn violated by failing to make settlement for the damage the law then furnishes to the owner of that right an access to its courts to bring suit. The suit results in a judgment which is an exchange of the old right of action for a new right on the judgment. If the judgment is not satisfied, the law thereupon seizes the property of the judgment defendant, sells it at judicial sale and uses the proceeds to discharge the judgment debt, thus enforcing the law, in so far as it ever enforces it, by creating new rights.

It is true, to be sure, that the law operates not only to create rights but to discharge them; but a discharge of one right is in turn the creation of a new right in the party whose right is discharged.

§ 46.2. Persons and Things in Which Rights Are Created. — Rights are created either in persons or things or against persons. In some systems of law rights are also created against things but in our law there are no recognized rights against things alone.

The right in a person or thing is a primary right such as property or status. This operates, to be sure, through a bundle of rights which exist against all persons requiring them to refrain from disturbing the primary right. This bundle of rights, however, is not the primary right of property or status. They are secondary to such a right and must assume the right as existent before they operate. Thus, a right of property of any kind in a horse is independent of the bundle of rights which give it character and substance. It is often said that if the very last right in the bundle is repealed, the primary right in the thing must go with it. This, however, is not necessarily true, for many rights exist without legal support and these rights in persons or things as well as others.

A right against a person may arise either because of a violation by the person on one of the secondary rights which guard the thing or by reason of a direct obligation imposed upon the person either by his contract or in some other way.

Title B. Jurisdiction over Persons

§ 47.1. General Principles of Jurisdiction over Person. — Jurisdiction over a person is the power to deal in accordance with the law with the person. So the right of a husband to his wife's society or of a father to his child's service or of the child to support from the father, is a right directly in the person and not against it. An example of such a right exercised by the state is the jurisdiction over a person to tax him or to render him subject to a court. The nature of jurisdiction over the person can best be studied in connection either with taxation or with jurisdiction, since there are few recorded decisions on private jurisdiction over a person.

§ 47.2. Jurisdiction over Absent Nationals. — The jurisdiction over an absent national depends upon the obligations of allegiance; in accordance with which the sovereign is bound to protect his subject in any state to which he is allowed by the sovereign to go, and the national owes obedience to his sovereign in many or all particulars as well while he is abroad as while he is at home.

Only such states as are recognized in the law of nations as having this power are permitted to exercise this jurisdiction. In federated states the constituent states are not usually recognized as entitled to the allegiance of their nationals abroad, even though they may have been allowed to enter into diplomatic relations with other nations. Thus, in the United States the separate States have no jurisdiction abroad, the jurisdiction over nationals abroad being exercised solely by the United States. The same thing is true of the German Empire and was true (at least until its late reorganization) of the British Empire. Today, certain self-governing dominions of the British Empire have a standing which very closely approaches national independence. It is doubtful whether the Dominion of Canada, the Commonwealth of Australia, the Union of South Africa, and the Irish Free State could exercise jurisdiction over their absent nationals. These are matters which pertain to public international law.

Title C. Jurisdiction over Things

§ 48.1. Jurisdiction over Land and Things Annexed to Land. — Jurisdiction over land includes power over title to the land and power to subject the land to any claim against it or in it. It extends not only to the land but to anything which is so annexed to the land that while it is so annexed it is necessarily in the state where the land is situated. The nature of jurisdiction over land is most commonly treated in relation to the power to tax the land, in relation to the power of courts to affect the land by judicial action, and in relation to title and use of the land as between individuals. It will be fully considered in connection with those questions but the consideration of jurisdiction in those cases will be applicable to any other case in which jurisdiction over the land might be claimed.

§ 49.1. Jurisdiction over a Chattel. — Like land, a chattel is situated on some territory and is subject while there to the jurisdiction of the state. It differs from land in that it can be moved from the state and thus brought under the jurisdiction of another state. Nevertheless, while the jurisdiction exists it is similar to that over land.

Jurisdiction over a chattel is principally considered in connection with the taxation of the chattel; with judicial action over the chattel; with the relation of different parties to the chattel with respect to ownership and use of it, and with the administration of the chattel. The principles of jurisdiction will be considered carefully in these connections but the principles there developed will be applicable to any other question of jurisdiction.

§ 50.1. Jurisdiction over the Title to Property. — One who becomes the owner of land in a certain state takes his title from the law of that state, and holds it at all times subject to that law. In the case of movables, however, it is often necessary to establish in fact the consent of the owner to place his movables in the state in question; for if such consent cannot be found, the state has no jurisdiction to affect his title to the property until he has had a chance to move it or until the period of prescription in the state has run, though it has full control over the property itself and may extend all police regulations to this property.[1] If the property of a person outside the jurisdiction of a state is within the state by his consent or acquiescence, the state has entire control over his title to the property. Thus in Cammell v. Sewell,[2] a vessel not scheduled to enter Norwegian waters had been brought into a Norwegian harbor by the master for refuge in a storm. The vessel was wrecked and the cargo was libeled and sold under the Norwegian law. This sale was held to pass a good title as against the original owner of the cargo. In Alcock v. Smith [3] a bill of exchange was placed by the owner in the hands of an agent in a foreign state; and under the law of that state it was seized and sold by a public officer. This was held to pass a good title to the bill as against the original owner. In Waters v. Barton,[4] certain slaves were loaned by the owner to another to be taken to another state, the borrower set up a claim to the ownership in the state to which he took them, and by the operation of the statute of limitations in that state he acquired an indefeasible title to them. The slaves were then brought back to the first state, and the former owner claimed them; but the court held that the title created by the law of the second state was a valid one. In answer to the argument that the owner had not been within that state, and was, therefore, not bound by its law, the court asked, may it not be said "that, by knowingly suffering his property to be taken, and to remain within the jurisdiction during the period prescribed by the local law, he thereby voluntarily subjected his property and rights to the operation of such local laws?"

[1] The case seems never to have arisen in an English court. In Todd v. Armour, 19 Scot. L. R. 656 (1882), the sale took place in the state where the goods were stolen, and were brought into the second state by the purchaser. The court was not clear what would have been the state of the title if the goods had been brought by the thief to the second state and sold there; and see the language of Lord Chief Justice Cockburn in Cammell v. Sewell, 5 H. & N. 728 (1860).

[2] Cammell v. Sewell, 5 H. & N. 728 (1860).

[3] Alcock v. Smith, [1892] 1 Ch. 238; see also Embiricos v. Anglo-Austrian Bank, [1894] 2 K. B. 870.

[4] Waters v. Barton, 1 Cold. 450 (Tenn. 1860).

§ 50.2. Chattel Removed without Owner's Consent. — In 1875, one Baker, in New York, mortgaged a pair of horses to Edgerly, and the mortgage was duly recorded. The deed contained a clause giving Edgerly a right to possession of the horses if Baker should remove them. Baker did in fact take the horses without Edgerly's knowledge to Canada; there, after certain intermediate transactions, they were sold to Bush, a New Yorker, under circumstances which by the law of Canada gave Bush the legal title. Bush returned to New York, leaving the horses in Canada. Edgerly demanded the horses of Bush and on Bush's refusal to give them up Edgerly brought an action for an alleged conversion. The case went to the Court of Appeals, which affirmed a judgment for the plaintiff.[1]

The opinion of Chief Judge Folger is not a satisfactory one. It is full of curious and obsolete notions, and avoids any specification of reasons. The nearest approach to any ground of decision is in the form of a doubt:

"We doubt whether, in a case like this, where, after a title to property has been acquired by the law of the domicile of the vendor, and of the situs of the thing, and of the forum in which the parties stand, in a contest between citizens of the State of that forum, it has ever been adjudged that such title has been divested by the surreptitious removal of the thing into another State, and a sale of it there under different laws."

This extract seems to allege several reasons without alleging that any one alone is enough to justify the decision:

(1) As to the acquisition of the plaintiff's title, whatever be the bearing on it of the domicil of the vendor and the forum in which the question comes up, it is certainly enough that it passed by the law of the situs of the thing at the time.[2]

(2) It would seem that the court would not deal more harshly with its own citizen as a defendant than it would with a stranger, and therefore that this being a contest between two citizens of New York would not affect the decision. Certainly all authority is against the idea that the question of title would have been differently decided if the defendant had not been a

[1] Edgerly v. Bush, 81 N. Y. 199, 205 1880).

[2] Cammell v. Sewell, 5 H. & N. 728 (1860); Waters v. Barton, 1 Cold. 450 (Tenn. 1860); Emery v. Clough, 63 N. H. 552, 4 A. 796 (1885).

citizen of New York.[1] Nor should the plaintiff's citizenship be allowed to affect his title.[2]

(3) The fact that the law of Canada with respect to the passing of title differs from the law of New York is not in itself enough to justify New York in giving no recognition to the Canadian title. In many decisions a title acquired abroad under a law different from that of the forum and regarded by the forum as quite against its policy has nevertheless been recognized as valid.[3] In a few cases, to be sure, recognition has been refused to a title validly acquired abroad, on the ground that to recognize it would be contrary to the public policy of the state.[4] These cases do not represent the weight of authority, but it is to be noticed that the policy involved was not connected with the original acquisition of title. The policy was concerned with the protection of purchasers or creditors within the state of the forum from the results of concealing the title (by putting possession and what by the law of the forum might be said to amount to the indicia of ownership into the hands of a bailee) from citizens of the state of the forum, into which the property was brought. No such situation existed in Edgerly v. Bush; indeed, in the latter case, the horses were not brought into New York by the defendant, but still remained in Canada.

It is indeed true that identity of law between New York and Canada, if it existed, would lead to a different result. Though the horses had been removed from New York clandestinely, yet if title had been passed in Canada by a transaction which would have passed title in New York, the former owner has no ground of complaint. If the Canadian law, for reasons which will be developed later, does not apply, then New York law applies to the transaction, and ex hypothesi the same result

[1] Adams v. Broughton, 13 Ala. 731 (1848); Cleveland Machine Works v. Lang, 67 N. H. 348, 31 A. 20 (1892).

[2] Security Trust Co. v. Dodd, Mead & Co., 173 U. S. 624, 43 L. ed. 835, 19 Sup. 545 (1899); but see Haltom v. Nichols & Shepard Co., 64 Okla. 184, 166 P. 745 (1917).

[3] Stern v. Drew, 285 F. 925 (Ct. of App. D. C. 1922); Public Parks Amuse-

ment Co. v. Embree-McLean Co., 64 Ark. 29, 40 S. W. 582 (1897); Langworthy v. Little, 12 Cush. 109 (Mass. 1853); Rodecker v. Jannah, 125 Wash. 137, 215 P. 364 (1923).

[4] Turnbull v. Cole, 70 Colo. 364, 201 P. 887 (1921); Delop v. Windsor, 26 La. Ann. 185 (1874), changed subsequently by statute; Bank v. Carr, 15 Pa. Super. Ct. 346 (1900).

is reached. This is illustrated by the case of Embericos v. Anglo-Austrian Bank.[1] In that case a check was drawn in Roumania on a London bank and indorsed to the plaintiff, from whom it was stolen, carried into Austria, and cashed by an Austrian bank. The indorsement of the plaintiff's name, then on it, had been forged. By the Austrian law cited in the case, and also by the Roumanian law,[2] the title passed to the bank that cashed the check, though by the law of England title would not thus have passed. The Austrian bank duly transferred the check to the defendant, who was now sued for conversion of the check. The English court found for the defendant.

(4) All other grounds having been eliminated, the case must be supported, if at all, on the ground of the "surreptitious removal of the thing into another state."

That the knowledge of an owner of the removal of his chattel into another state makes a difference as to his claim to the chattel, in spite of the fact that by the law of the state into which the chattel is taken his title is divested, is plain from the cases. Many if not most states, for instance, hold that when a mortgaged chattel or one sold on conditional sale is taken into another state with the consent of the mortgagee or vendor, the law of the latter state as to recording of the mortgage or conditional sale must be complied with; and that an attachment or a sale of the chattel by the mortgagor or vendee in possession is governed by the law of the second state.[3] The same states, however, hold that where the chattel is taken into another state without the knowledge and against the will of the mortgagee or vendor, his title cannot be divested by the law of the second state [4] unless the chattel has remained in the

[1] Embiricos v. Anglo-Austrian Bank, [1904], 2 K. B. 870.

[2] Code of Commerce (1887), § 309: "The bearer of a bill of exchange proves title to it by an uninterrupted series of endorsements ending in endorsement to him. . . . One who pays is not bound to look into the genuineness of the endorsements." § 366: "All provisions applicable to endorsement and payment of bills of exchange are applicable to checks."

In the actual case no proof was made of the Roumanian law, and the case was treated by the court as if the theft had taken place in Austria.

[3] Geiser Mfg. Co. v. Todd, 224 S. W. 1006 (Mo. App. 1920); Bradley v. Kingman Co., 79 Neb. 144, 112 N. W. 346 (1907). Contra, Pennington County Bank v. Bauman, 87 Neb. 25, 126 N. W. 654 (1910).

[4] Waters v. Cox, 2 Ill. App. 129 (1878); Armitage-Herschell Co. v.

second state for the period of the first state's statute of limitations.[1] In other states, where the question arising after a removal consented to had not been decided, the court decided in favor of the mortgagee or vendor in case of a surreptitious removal, saying that it was not necessary to decide the other case.[2]

In a Delaware case [3] an automobile was sold in Massachusetts, title being validly retained by the vendor according to Massachusetts law; the purchaser took the car into Pennsylvania and there sold it to a bona fide purchaser. By the law of Pennsylvania the second purchaser got a valid title as against the Massachusetts vendor. The original vendor claimed the car in Delaware. The court held that each transaction must be governed by the law of the state where it took place; and since the car was in Pennsylvania at the time of the second transaction, the second purchaser's title prevailed. In this case it did not appear that the vendor put any restriction on the use of the car by the purchaser. It is therefore like any case of confiding goods to a bailee; the title of the bailor is subject to the law of any state into which the bailee chooses to take the goods.

To the same effect is the English case of Cammell v. Sewell.[4] This was trover for certain lumber. The lumber, belonging to the plaintiff, had been shipped to him from Russia. The vessel took refuge in a Norwegian harbor but was wrecked and the lumber cast ashore. There it was sold by a legal transaction which passed good title by the law of Norway. The purchaser brought the lumber to England, where the plaintiff demanded possession from the purchaser, and on his refusal brought this action. In the course of the argument Chief Justice Cockburn put this significant question: "If a person sends goods to a foreign country it may well be that he is bound by the law of that country; but here the goods were wrecked on the coast of Norway, and came there without the owner's consent. Could the arrival of

Potter, 93 Ill. App. 602 (1901); Baldwin v. Hill, 4 Kan. App. 168, 46 P. 329 (1896); Fry Bros. v. Theobold, 205 Ky. 146, 265 S. W. 498 (1924); Taylor v. Boardman, 25 Vt. 581 (1853); Rodecker v. Jannah, 125 Wash. 137, 215 P. 364 (1923); Studebaker Bros. Co. v. Mau, 13 Wyo. 358, 80 P. 151 (1905).

[1] Howell v. Hair, 15 Ala. 194 (1849); Alexander v. Torrence, 6 Jones L. 260 (N. C. 1858).

[2] Creelman Lumber Co. v. Lesh, 73 Ark. 16, 83 S. W. 320 (1904); Adams v. Fellers, 88 S. C. 212, 70 S. E. 722 (1911); Emerson-Brantingham v. Ainslie, 38 S. D. 472, 161 N. W. 1001 (1917).

[3] Fuller v. Webster, 28 Del. 538, 95 A. 335 (1915), affd. without opinion 99 A. 1069 (1916). The cases of Judy v. Evans, 109 Ill. App. 154 (1903); and Merz v. Stewart, 211 Ill. App. 508 (1918), seem to be governed by the same principle. These cases are often cited as opposed to the earlier cases from the same court, already cited, and as establishing the law of Illinois to the same effect as the Texas law hereafter cited. It does not appear in either case, however, that the vendor put any restriction on the place to which the vendee should take the goods.

[4] Cammell v. Sewell, 5 H. & N. 728, 735 (1860).

the goods there enlarge the captain's authority?" The court eventually held the Norwegian title good; but it will be noticed that the goods were entrusted by the owner's agent to the master, and that the master had voluntarily brought them within Norwegian territory before the wreck took place.

There are, on the other hand, cases where the court of the second state has held that the title of the mortgagee or vendor is divested in the second state though the removal was surreptitious; but these cases are from a few states only and represent the opinion of a small minority.[1] With one exception, it will be noted, the cases are from Texas. They are cases where an automobile was sold in a neighboring state, title being validly reserved by the vendor according to the law of the state of sale, and an agreement given not to remove the car from the state until full payment was made. The purchaser, without the vendor's knowledge, removed the car into Texas and there sold it. The second purchaser got title under the law of Texas; and it was held that this divested the foreign vendor's title.

The operation of the Texan doctrine illustrates its inconvenience. It appears to be a regular course of business for a swindler to buy a motor car on credit in California or elsewhere, drive it into Texas, and sell or pledge it there. The original seller is helpless in the face of this practice; and Texas will doubtless continue full of willing bona fide buyers. That this result is most unfortunate from the point of view of commercial practice is clear.

It may fairly be asserted that the great weight of authority supports the rule which is consonant with our methods of business and our methods of thought: that is, that the law of a state into which chattels have been surreptitiously removed without the knowledge of an owner and against his will does not apply its law to divest the title of the absent owner.

§ 50.3. Jurisdictional Aspect of the Problem. — The question still remains, however, whether this is a rule of the common law of each state, so that if any state (like Texas) adopted a different view, a title thus vesting in that state would be recognized elsewhere; or whether it is a principle of jurisdiction.

[1] Turnbull v. Cole, 70 Colo. 364, 201 P. 887 (1921); Willys-Overland Co. v. Chapman, 206 S. W. 978 (Tex. Civ.

App. 1918); Chambers v. Consolidated Garage Co., 210 S. W. 565 (Tex. Civ. App. 1919).

so that such a Texas-acquired title would be refused recognition in another state.[1]

It is to be noticed, in the first place, that questions of jurisdiction are themselves questions of common law, not imposed on a state by external power; and that the only effect of holding that jurisdiction is lacking is that the act in question will be given no exterritorial effect.

The only authority which could control this question would be a decision of a court of a third state refusing to give effect to the legal rights acquired under a rule like the Texas rule. There are very few such decisions. The case first stated is an authority against the jurisdiction of Canada to divest the plaintiff's title; and apparently it is the only direct authority on the subject.

Such little authority as there is, therefore, is to the effect that a state has no jurisdiction over the title of an absent owner in a chattel which has been brought into the state without any act of his sufficient to submit his interest in the chattel to the jurisdiction of the state. And analogy and the reason of the thing are to the same effect. The argument may be stated in this way:

(1) Ownership is a legalized relation between a person and a thing. The owner's property does not exist in the thing alone, but in the person of the owner as well. If follows that:

(2) Jurisdiction over the thing does not necessarily involve jurisdiction either over the person or over his interest in the thing. Usually the state in which a chattel is, has jurisdiction over the owner's interest; for in the ordinary case the owner has submitted his interest to the jurisdiction of the state by belonging to or being in the state, or by permitting his chattel to be there, or by confiding it absolutely to another who permits it to be there. But if the owner has done nothing to submit his interest to the law of the state where the thing is, there is no jurisdiction in that state to affect the rights of the absent person. The state may, to be sure, exercise jurisdiction over the thing, in so far as the owner's interest is untouched. It may destroy the thing, thus destroying incidentally the owner's interest in it; but it requires no jurisdiction to do so — a private

[1] See the language of the court in Goetschius v. Brightman, 245 N. Y. 186, 156 N. E. 660 (1927).

wrongdoer may do the same. It may even postpone the owner's claim to another person's lien for repairs, as in an interesting Kansas case where a stolen car was wrecked, taken to a garage, and repaired, and the statutory lien was given precedence over the owner's claim, at least to the extent that the repairs had increased the value of the wrecked car.[1] But all this leaves the owner's relation to the thing legally unimpaired.

(3) If the state where the thing is has no jurisdiction over the absent owner's title, any provision of its law by which his interest as owner is affected will be given no force abroad.

§ 60.4. Merger of Chattel in Document. — The common law considers in many cases that a chattel is capable of being merged in a document issued in connection with some dealing with the chattel; as, where a chattel is entrusted to a carrier and against it a document is issued which is negotiable. This is true at common law in a case of a foreign bill of lading and under very generally adopted statutes to an inland bill of lading or a warehouse receipt. The principle here stated is of special importance in connection with the taxation of the chattel or document as the case may be, the ownership of it and the administration of it. The principles will be considered in that connection though the principles there developed will be equally applicable to other cases involving a document in which a chattel is merged.

§ 50.5. Jurisdiction over Chattel in Another State. — In a few cases it is possible to exercise jurisdiction over a chattel in another state. Thus, if a chattel is in transit it is to a considerable extent exempt from the jurisdiction of the state through which it is passing. There must be some state having jurisdiction over it. Three states could possibly exercise this jurisdiction: the state of the domicil of the owner; the state from which the chattel was sent, or the state to which the chattel was consigned. This question will arise for solution most generally in the case of the power to tax such a chattel and the power to administer it. And the question is chiefly considered in such connections.

Another case of jurisdiction over a chattel outside the boundaries of the state presents itself when the chattel has become

[1] Willys-Overland Co. v. Evans, 104 Kan. 632, 180 P. 235 (1919).

part of a larger composite thing and may be said to belong in the state where that composite thing has its headquarters. The composite thing may be grouped about a business as if the chattel is one of the instruments of carrying on the business or part of the stock in trade; it may be grouped about a general headquarters, as for instance, cattle in pasture in another state may belong in their barn which lies across the state line from the pasture; or a motor car having its headquarters in a certain garage may be traveling for the time being in another state.

It would seem that this category includes that considered in the preceding section, namely, goods taken into another state without the owner's consent. They may be conceived of as absent for the time being from their proper headquarters and therefore not subject to jurisdiction.

§ 51.1. Jurisdiction over Intangibles. — An intangible right is not generally to be assigned to a situation in space, and therefore there is no state which can exercise jurisdiction over it because it is situated within the territory of the state.

The older cases were decided under the influence of an old saying, mobilia sequunter personam. This maxim, accepted literally, would give jurisdiction to the state of the owner's domicil on the ground that the intangibles were there situated. In fact the maxim, taken literally, applies as well to chattels as to intangibles. It is however not accepted in the recent cases as a sound statement of a principle of jurisdiction with regard to chattels. It is a fact, however, that a state may reach an intangible thing by the exercise of jurisdiction over the owner of it, or even, in case of a chose in action, of jurisdiction over a party to it.

Intangibles may be divided into two classes, those that have a real existence and those that are merely created by law as an expression of a legal relation between parties. An example of the first class is a trade secret or literary property. The principal example of the second class is a contract right. The possibility of reaching a contract right or chose in action has long been discussed in the courts. Some earlier cases have allowed such a right to be reached for purposes of taxation at the domicil of the debtor,[1] and for purposes of garnishment it

[1] Blackstone v. Miller, 188 U. S. 189, 47 L, ed, 439, 23 Sup. 277 (1903).

has been definitively held that the debt may be reached by a process directed to the debtor.[1] It must be obvious that the chose in action, being a mere legal relation, an abstraction, can have no actual place in space and therefore no state may get at it because of its location within that state. The maxim, mobilia sequunter personam, would place the chose in action with the creditor. It has already been pointed out, however, that this doctrine has been substantially abandoned of later years.

It has finally been held by the Supreme Court of the United States that, at least for purposes of taxation, a chose in action can be reached only at the domicil of the creditor. For purposes of ordinary tax this can be explained as a personal levy based upon jurisdiction over the creditor, but in case of inheritance tax it must be based upon the application of the law of the creditor's domicil to the inheritance of the chose in action.[2] It may be finally agreed, therefore, that the only way of obtaining jurisdiction over a chose in action is through the creditor of it.[3]

§ 62.1. Documents. — The fact that a written paper is a tangible thing and therefore subject to the jurisdiction of the state in which it is, has already been mentioned.[4] But the contents of the writing is not therefore within the jurisdiction of the state. Thus the binding character of a written contract, or title to a poem, is not brought within the jurisdiction of a state because the contract or the original draft of the poem is written on paper which is within the state. It is only when the content of the paper derives its power from the document itself as in the case of a bond or a promissory note, that jurisdiction over the paper is also jurisdiction over the obligation written on it. Whether a right is merged in a document must be determined by the law that created it; when it was so merged by that law, the presence of the paper confers jurisdiction over the right.[5]

The Supreme Court of the United States, however, has apparently denied for purposes of taxation the possibility of

[1] Harris v. Balk, 198 U. S. 215, 40 L. ed. 1023, 25 Sup. 625 (1905).

'See Beidler v. So. Carolina Tax Com., 282 U. S. 1, 75 L. ed. 131, 51 Sup. 54 (1930).

[3] Applications of this doctrine will be found for taxation in Chap. 4A, for the jurisdiction of courts in Chap. 4, for its general application to the law of property in Chap. 7.

[4] Ante, § 50.5.

[5] See § 50.5.

merger of a right in a document. In a recent case [1] the court made no distinction between simple contract debts and debts evidenced by a bond or promissory note. The application of the principle, the court said, "is not defeated by the mere presence of bonds or note or other evidences of debt within the state other than the domicil of the owner. Baldwin v. Missouri, 281 U. S. 1." This is the last of a long array of cases in which the majority of the court has shifted between an adherence to the theory that a bond or note, as a specialty, is a tangible right and the opinion that the bond or note does not alter the intangible character of the debt. In view of this frequent shift of opinion it is not certain that the latest view of the court will remain its permanent view. Nevertheless, it is probable that for purposes of taxation the court will adhere to the view that the tax can be laid, even upon a bond or promissory note, only at the domicil of the owner of the note.

In other particulars it is well settled that a bond or note is regarded like a chattel having a locality in space and therefore governed by the law of the place at which it is dealt with.[2]

§ 53.1. Nature of Share in a Corporation and Certificate. — A share is in its nature, as its name implies, a share in the incorporated association. It is not an interest in the property, but in the general enterprise undertaken by the association. It is therefore so connected with the association that if it is situated anywhere it is where the association was formed. The certificate, on the other hand, is a document certifying the ownership of the share to be in the person named on the document but transferable by indorsement according to the custom of merchants. It is therefore not a chose in action but a mere token to fix the ownership of the share. On this account it is to be treated as a thing in itself; and while a transfer of the thing does not of itself transfer the share, for a transfer of the share must be effectuated upon the stock-book of the corporation, nevertheless its transfer plays an important part in the determination of the ownership of the share. Any dealing with

[1] Beidler v. So. Carolina Tax Com., 282 U. S. 1, 75 L. ed. 131, 51 Sup. 54 (1930).

[2] See on this point Alcock v. Smith, [1892] 1 Ch. 238; Embiricos v. Anglo-Austrian Bank, [1905] 1 K. B. 677. For

instances of application, see in connection with taxation, Chap. 4A and in connection with the jurisdiction of courts, Chap. 4, in connection with the inheritance of property, Chap. 7.

the share is therefore effectual by the law of the place where the share was at the time of dealing; but ownership of the certificate is determined by the law of its situs at the time of its transfer.[1] The transfer of it is taxable in England.[2] In the United States, however, it has been held that inheritance of the share cannot be taxed through an inheritance tax on the certificate. The only inheritance tax which can be levied on the ownership of the share is at the domicil of the distant owner.[3]

§ 53.2. Localization of Intangible Things. — There are not many examples of intangible things which have a locality. One of them is a judgment, which being the creature of the court that rendered it is subject only to the jurisdiction of that state and only by its law can it be modified, transferred or discharged. So the good-will of a business is so connected with the place in which the business is carried on as to be subject entirely to the state in which the business is located. It is possible that a bank deposit is subject to the jurisdiction of the state within whose territory the bank is located. It was so held in the Supreme Court of the United States.[4] This case has been overruled on another point by the same court,[5] and the language leaves it somewhat uncertain whether the court will hereafter find the location of a bank deposit at the bank.

§ 53.3. Business Situs. — The aggregation of all intangible assets of a business with the business itself gives rise to the so-called "business situs." This, and the allocation of business assets among two or more states, are dealt with in connection with taxation.[6]

Title D. Jurisdiction over Status

§ 54.1. Domestic and Other Status. — A division of status will be found at the beginning of Chapter 5. It includes, as will be seen, two general categories, relative and absolute status, and of absolute status two classes, domestic status and other absolute status.

[1] Williams v. Colonial Bank, 38 Ch. Div. 388 (1888); Disconto Gesellschaft v. U. S. Steel Corp., 267 U. S. 22, 69 L. ed. 495, 45 Sup. 207 (1925).

[2] Stern v. Queen, [1896] 1 Q. B. 211.

[3] First Nat. Bank v. Maine, 284 U. S. 312, 76 L. ed., 313, 52 Sup. 174 (1932).

[4] Blackstone v. Miller, 188 U. S. 189, 47 L. ed. 439, 23 Sup. 277 (1903).

[5] Beidler v. So. Carolina Tax Com., 262 U. S. 1, 75 L. ed. 131, 51 Sup. 54 (1930).

[6] See Chap. 4A.

Of jurisdiction over absolute status there is not much to be said; for an absolute status is, as will be seen, set up by the state in which it is to be exercised and recognized only in that state. Domestic status, however, requires a different term. Domestic status has two characteristics not existing in the case of absolute status. First, it is in its nature more stable, and second, it is peculiarly connnected with one locality. Since it has to do with the home, it is connected with the state of domicil.

Within domestic status are grouped marriage, legitimacy, adoption, and guardianship. The general consent of civilized nations regards these as relations which should continue wherever the parties go and should be recognized by every civilized country. Under these circumstances the jurisdiction to create them is an important question to be dealt with by law. This is particularly important, as has been pointed out, to the place in which the parties to the status live; and the general consent of nations once gave the power over this status to the place of the home, that is, the domicil. It is true that this has been changed in most of the European countries, but the common law still recognizes the domicil as having full power over domestic status.

These questions will be particularly considered in the chapter on Status and a reader wishing further to pursue the subject is referred to that chapter.

Topic 3. Instrumentalities for Exercising Jurisdiction Title A. Executive Jurisdiction

§ 56.1. Nature and Extent of Executive Power. — Executive power is the power of carrying out and enforcing the laws, which includes the general administration of government.

The exercise of executive jurisdiction conferred by a state is limited by the extent of the jurisdiction of the state. As it was put clearly and forcibly by Professor Mechem: [l] "The authority of public officers being derived from the law, it necessarily follows that the authority cannot exist in places where that law has no effect. The authority of all public officers is, therefore, limited and confined to that territory over

[1] Mechem Public Officers, § 508.

which the law, by virtue of which they claim, has sovereign force."

One of the principal applications of this principle is the limitation of official authority; the authority of a public officer can be exercised only within the territory of the sovereign who commissions him. Thus, for instance, the authority of a sheriff to arrest or to serve process is confined to his own territory,[1] a principle too clear to be provable by many decided cases. Thus again, the general authority to administer oaths extends only throughout the territory of the sovereign who confers the power. This was held clearly in an early decision in New York. In that case [2] the validity of a deed was in question. The proof of execution was made before a New York judicial officer, who as such possessed the power of administering oaths; but the oath was administered in Canada. The oath was held invalid, upon the ground that "the judge had no authority to administer an oath out of the jurisdiction of the State."

§ 67.1. Acts Not Requiring Official Authority. — A state may provide for the doing of executive acts by private persons, without official power, either within or outside the territory of the state; and such acts may as well be done by an officer outside his territory as by one who nowhere has official standing. Thus where, as at common law, a felon may be arrested by a private person, an officer acting as a private person, may arrest a felon outside his territory.[3] So in State v. Morgan [4] it was held that members of a sheriff's posse might legally arrest for felony outside the territory in which the sheriff had official authority. So where by the law of Texas a citation could be

[1] Robinson v. Dow, 1 H. & H. (D. C.) 239, 20 Fed. Cas. 11,950 (1846); Kendall v. Aleshire, 28 Neb. 707, 45 N. W. 167, 26 A. S. R. 367 (1890); Mandeville v. Guernsey, 51 Barb. 99 (N. Y. 1865), affd. without opinion, 50 N. Y. 669 (1872); Stuart v. Mayberry, 105 Okla. 13, 231 P. 491 (1924); Ex parte Sykes, 46 Tex. Cr. 51, 79 S. W. 538 (1904); Permanent B. & I. Assoc. v. Hudson, 7 Queensl. L. J. 23 (1896).

[1] Jackson v. Humphrey, 1 Johns. 498 (N. Y. 1806).

[3] Mandeville v. Guernsey, 51 Barb. 99 (N. Y. 1865; semble), affd. without opinion, 50 N. Y. 669 (1872); in Burton v. New York C. & H. R. R. R., 147 App. Div. 557, 132 N. Y. S. 628 (1911), affd. 245 U. S. 315, 62 L. ed. 314, 38 Sup. 108 (1917), it was held that a New York officer without a warrant may arrest for a felony committed in another state.

[4] State v. Morgan, 22 Utah, 162, 61 P. 527 (1900).

served outside the state by a private person, the fact that a person to whom a citation was addressed for service in England outside London happened to be an officer whose jurisdiction was limited to London did not render insufficient service by him outside London.[1]

On this principle rests the administration of an oath in one state to be used in another. If the statute of the latter state allows the issuing of a commission to administer the oath abroad, it is strictly speaking permitting an oath to be administered by one who is not an official. An oath so administered by authority of the country where it is to be used is valid.[2] In a Georgia case [3] the court said that the appointment made the commissioner "a justice of the peace ex officio of our state," and that the effect of it was "to extend the jurisdiction and sovereignty of the state pro hac vice to the office of commissioner in New York"; but this statement cannot be taken as an exact statement of the legal situation. If the situation is also given the statutory authority of the state in which the oath is administered, it becomes an official act of that state, and such an oath if taken falsely is perjury in that state.[4]

§ 58.1. Extra-Territorial Exercise of Vested Rights. — An executive officer may acquire, through his office, a relation toward a thing or a person. This relation may continue in existence though the object of the relation goes into another jurisdiction. Thus, a guardian of the person of a ward, appointed at the domicil of the ward, acquires a status in relation to the ward which will be recognized in any state into which the ward may go.[5] So when a person under arrest is admitted to bail, and goes into another state, the relation of prisoner and bail, and the consequent right of his bail to arrest him at will, will be recognized in the other state.[6] So where an officer administering property acquires an interest in the property at the situs of the property and then sends it into another state,

[1] Stein v. Mentz, 42 Tex. Civ. App. 38, 94 S. W. 447 (1906).

[2] Andrews v. Ohio & M. R. R., 14 Ind. 169 (1860).

[3] Sugar v. Sackett, 13 Ga. 462 (1853).

[4] Com. v. Smith, 11 All. 243 (Mass. 1865).

[5] Nugent v. Vetzera, L. R. 2 Eq. 704 (1866).

[6] Parker v. Bidwell, 3 Conn. 84 (1819); Ex parte Lafonta, 2 Rob. 495 (La. 1842); Nicolls v. Ingersoll, 7 Johns. 145 (N. Y. 1810).

his interest in the property is fully recognized; thus an administrator who sends assets abroad is recognized as owner of them,[1] and a receiver who brings property taken by him as such into another state is recognized as the lawful possessor.[2] On this principle where a man was legally arrested in Kentucky and dragged the officer who arrested him across the State boundary into Tennessee, it was held that the officer might lawfully restrain him while he struggled with him in Tennessee, and might eventually lawfully bring him back into Kentucky.[3] And in a case where a sheriff in Canada was ordered to take a convict to Australia, and in transferring his prisoner from one vessel to another was passing through English territory, it was held that the sheriff might legally hold the convict imprisoned in England.[4]

Title B. Legislative Jurisdiction

§ 59.1. The Meaning of Legislative Jurisdiction. — The phrase legislative jurisdiction may be given a broad or a narrow meaning. Its broader meaning covers the providing of law to govern legal relations whether that law be common law or statute. In the narrower sense legislative jurisdiction means jurisdiction to enact statutes. If the classification of jurisdiction into executive, legislative, and judicial jurisdiction is to be inclusive of all cases, the broader meaning must be given to the phrase; and that is done here. That being the case it will be necessary to consider separately legislative jurisdiction in the broader sense, that is, the jurisdictional extent of law and the jurisdiction to change law by statute.

§ 59.2. The Extent of Law. — The law of a state prevails throughout its boundaries and, generally speaking, not outside them. This is true of all territorial as distinguished from tribal or personal law; and the common law has been generally speaking, a territorial law from its origin in the extension of the King's law throughout the realm to its present application in most English-speaking countries. It is of course one of the provisions of that territorial law that it should furnish rules

[1] Currie v. Bircham, 1 Dowl. & Ry. 35 (1822).

[2] Chicago, M. & S. P. Ry. v. Keokuk N. L. P. Co., 108 Ill. 317 (1883).

[3] Bowlin v. Archer, 157 Ky. 540, 163 S. W. 477 (1914).

[4] Watson's Case, 9 A. & E. 731 (1839).

of the Conflict of Laws for the determination of all questions having a foreign element; but such rules of the Conflict of Laws, as has already been pointed out,[1] form a part of the local law and are applicable in the local courts because they do so form a part of that law. The exceptional cases, where a personal law extends beyond the borders of the territory, will be considered in subsequent sections.

§ 60.1. Requisites of Legislative Action. — The function of changing law by a statute must be exercised according to certain formal requirements.

First, a statute must be the act of a definite legislative body, passed according to legal rules at a legal sitting of the body. An informal expression of will by the members of a legislature, such as an unanimous agreement, outside the body itself, cannot constitute legislation.[2]

Second, a statute must be the adoption of a motion regularly presented to the body for action. While there is no decided authority that a spontaneous demand of the members would not be a legislative act, this is submitted on reason as a necessary requirement.

There is, however, no need for notice to parties interested before legislation is passed; this is the most striking difference between legislative and judicial jurisdiction. "Knowledge or ignorance of parties of intended legislation does not affect its validity, if within the competency of the legislature." [3]

It is to be noticed here, as in the case of judicial action, that the lack of an essential quality of legislation does not necessarily invalidate the legislation; in the absence of a constitution, it is within the power of the sovereign to commission his legislature to do anything he himself could do, whether legislative in its nature or not; or to do a thing in any way in which he himself could do it. What is meant by the previous discussion is merely that if a legislative body were allowed to do governmental acts without the forms necessary for legislation, such acts could not be regarded as legislative, or upheld as legislation in the same or any other country, though they might be valid as executive or judicial action.

[1] See Ante, §5.1.

[2] See McCortle v. Bates, 29 Oh. S. 419 (1876).

[3] Field, J., in Maynard v. Hill, 125 U. S. 190, 209, 31 L. ed. 654, 8 Sup. 723 (1888).

§ 60.2. Non-Legislative Action by the Legislature. — Besides making statutes in the sense explained in the preceding sub-section, the legislature exercises in fact certain powers which are in their nature executive: that is, powers of bringing about specific results by fiat, as distinguished from powers to lay down rules for action, which are in their nature legislative, or to adjudge a case on past facts, which are judicial. An example of the exercise of executive powers by the legislature is perhaps the change in name of a person; or a decree legitimizing an illegitimate child.[1]

Similarly, a legislative body may exercise judicial functions, by passing on the truth of alleged past facts and issuing a decree in accordance with the truth and the law as they may appear. The power of a legislative body to be judge of the election of its own members is an example; so is the sitting of a legislative body as a court of impeachment or of appeal. Another example is the granting of legislative divorces, after testimony taken and a hearing before a committee.

In the case of Maynard v. Hill[2] where a divorce had been granted by act of the legislature, its validity was attacked on the ground that the granting of a divorce is a judicial and not a legislative act. The court however held the legislative divorce valid, Mr. Justice Field saying:

"What were rightful subjects of legislation ... is not to be settled by the distinctions usually made between legislative acts and such as are judicial or administrative in their character, but by an examination of the subjects upon which legislatures had been in the practice of acting with the consent and approval of the people they represented. A long acquiescence in repeated acts of legislation on particular matters, is evidence that those matters have been generally considered by the people as properly within legislative control. ... It will be found from the history of legislation that, whilst a general separation has been observed between the different departments, so that no clear encroachment by one upon the province of the other has been sustained, the legislative department, when not restrained by constitutional provisions and a regard for certain fundamental rights of the citizens which are recognized in this country as the basis of all government, has acted upon everything within the range of civil government.[3] Every subject of interest to the community has come under its direction. It has not merely prescribed

[1] Scott v. Key, 11 La. Ann. 232 (1856); Barnum v. Barnum, 42 Md. 251 (1875).

[2] Maynard v. Hill, 125 U. S. 190, 31 L. ed. 654, 8 Sup. 723 (1888).

[3] Citing Loan Association v. Topeka, 20 Wall. 655, 22 L. ed. 455 (1874).

rules for future conduct, but has legalized past acts, corrected defects in proceedings, and determined the status, conditions, and relations of parties in the future. . . . The division of government into three departments, and the implied inhibition through that cause upon the legislative department to exercise judicial functions, was neither intended nor understood to exclude legislative control over the marriage relation."

§ 60.3. The Effect Abroad of Non-Legislative Acts of Legislature. — Suppose the legislature, being empowered by the state, does something not within its normal function — such as legitimizing a child, or divorcing spouses — what would be the effect of this action abroad? Would a foreign sovereign recognize the legal efficacy of the act? This must depend upon the jurisdiction of the state to accomplish the result. A state not having jurisdiction to legitimize a child by administrative process, or to divorce spouses in its courts, could hardly acquire the jurisdiction by providing that the legislature should act in the matter. If the state lacked jurisdiction to legitimize or to divorce, it could not acquire such jurisdiction by its mere choice to accomplish the act by an act of the legislature. If, however, the state has jurisdiction to accomplish the result, and no provision of the constitution forbids, the state may do it validly through an act of the legislature.[1]

§ 61.1. No Jurisdiction within the Boundaries of Another State. — Since the power of a state is supreme within its own territory, no other state can exercise power there. And of course the state can confer upon its legislature no greater power than it has. In the language of Chief Justice Marshall in Rose v. Himely:[2]

"It is conceded that the legislation of every country is territorial; that beyond its own territory, it can only affect its own subjects or citizens. It is not easy to conceive a power to execute a municipal law, or to enforce obedience to that law without the circle in which that law operates. A power to

[1] As to legislative divorces: Maynard v. Hill, 125 U. S. 190, 31 L. ed. 654, 8 Sup. 723 (1888); Starr v. Reese, 8 Conn. 541 (1831); Levins v. Sleator, 2 Green, 604 (Ia. 1850); Cabell v. Cabell, 1 Met. 319 (Ky. 1858); Adams v. Palmer, 51 Me. 480 (1863); Crane v. McGinnis, 1 G. & J. 463, 19 A. D. 237 (Md. 1829); Cronise v. Cronise, 54 Pa. 255 (1867); but see Sparhawk v. Sparhawk, 116 Mass. 315 (1874); State v. Fry, 4 Mo. 120 (1835); see post, Chap. 5. As to legitimation: Scott v. Key, 11 La. Ann. 232 (1856); but see Barnum v. Barnum, 42 Md. 251 (1875); As to adoption: Estate of Sunderland, 60 Ia. 732, 13 N. W. 655 (1882).

[2] Rose v. Himely, 4 Cranch, 241, 279 (1808).

seize for the infraction of a law is derived from the sovereign, and must be exercised, it would seem, within those limits which circumscribe the sovereign power. ... A seizure of a person not a subject, or of a vessel not belonging to a subject, made on the high seas, for the breach of a municipal regulation, is an act which the sovereign cannot authorize."

The language of the court in St. Louis v. The Ferry Co.[1] may also be quoted:

"If the legislature of a State should enact that the citizens or property of another State or country should be taxed in the same manner as the persons and property within its own limits and subject to its authority, or in any other manner whatsoever, such a law would be as much a nullity as if in conflict with the most explicit constitutional inhibition. Jurisdiction is as necessary to valid legislative as to valid judicial action."

One may also compare the language of Mr. Justice Story in The Apollon:[2]

"The laws of [a] nation . . . can have no force to control the sovereignty or rights of any other nation, within its own jurisdiction."

It follows generally that no statute has force to affect any person, thing, or act (except in the case considered in § 63) outside the territory of the state that passed it.[3]

§ 61.2. The Clapper Case. — Neglect of these principles seems to have led to an untenable decision in an important recent case. In Bradford Electric Light Co. v. Clapper [4] a suit was brought in the federal court for the District of New Hampshire to recover damages under the New Hampshire law for an injury committed in New Hampshire. The injury consisted in an occupational injury to a person who was employed in Vermont by a Vermont company and was sent temporarily into New Hampshire to do an act, in the doing of which the harm occurred. The Vermont law provided that a workman hired within the state should be entitled to compensation even though the injury was received outside the state, and that employers who hire workmen within the state might agree with

[1] St. Louis v. The Ferry Co., 11 Wall. 423, 430, 20 L. ed. 192 (1870).

[2] The Apollon, 9 Wheat. 362, 370 (1824).

[3] Brocalsa Chemical Co. v. Lang, 32 P. (2d) 725 (1929); Carroll v. Minneapolis D. Y. S. System, 206 Wis. 287, 239 N. W. 501 (1931); Ford, Bacon & Davis, Inc. v. Terminal Warehouse Co., 207 Wis. 467, 240 N. W. 796 (1932).

[4] Bradford Electric Light Co. v. Clapper, 286 U. S. 145, 76 L. ed. 1026, 52 Sup. 571 (1931).

such workmen "that the remedies under the provisions of this chapter shall be exclusive as regards injuries received outside the state by accident arising out of and in the course of such employment and all contracts of hiring in this state shall be presumed to include such an agreement." The court held that under this law the parties must be taken to have agreed that any trade injury should be justifiable in Vermont only, that this agreement was provable as a defence in the New Hampshire suit and that New Hampshire must give full faith and credit to the Vermont statute which provided that the parties should be so taken as agreeing.

The question of the jurisdiction of the Vermont court to make such a provision was not raised in the opinion of the majority. Mr. Justice Stone concurred on the ground that "the courts of New Hampshire in giving effect to the public policy of that state would be at liberty to apply the Vermont statute and thus, by comity, make it the applicable law of New Hampshire. In the absence of any controlling decision of the New Hampshire courts, I assume, as does the opinion of the court, that they would do so and that what they would do we would do. ... If decision of that question could not be avoided, I should hesitate to say that the constitution projects the authority of the Vermont statute across state lines into New Hampshire so that the New Hampshire courts in fixing the liability of an employer for a tortious act committed within the state are compelled to apply Vermont law instead of their own."

The assumption that the New Hampshire courts would of their own will apply the Vermont law seems to be sufficiently answered by the fact that the courts below, which were courts of New Hampshire, did not apply the Vermont law but held that the New Hampshire law alone applied in New Hampshire and allowed the action. The power of Vermont to provide that there should be no cause of action in New Hampshire in the case of an injury in New Hampshire seems incurably outside the jurisdiction of the Vermont legislature; and it would therefore seem that the provision that no action should be allowed in New Hampshire is an unconstitutional provision. As a judgment of another state is not enforced if it was beyond the jurisdiction of the court, so it should be with a statute.

Nor is the jurisdictional difficulty cured by the statement that "the parties will be presumed to contract in accordance with this statute." They did not in fact so contract. Jurisdictionally speaking, therefore, it is a case where a state is allowed to claim a jurisdiction that it otherwise would not have by the simple expedient of presuming a non-existent agreement by the parties. The court treats this statutory provision as a defence set up in the New Hampshire court. Surely it is for New Hampshire to say what shall be allowed as a defence in its court. It cannot be true that Vermont can fix the New Hampshire procedure and thereby determine what acts may be set up in defence in New Hampshire.

The whole decision seems vulnerable on this ground of jurisdiction. One would have wished that in a case where such an extreme decision was made the majority of the court should have explained the grounds of jurisdiction of the Vermont statute to make what would otherwise be a tort under the law of New Hampshire an excused event. The decision has already been narrowed by subsequent cases.[1]

§ 63.1. Jurisdiction over Citizens Abroad. — While a state can exercise no legislative jurisdiction in the strict sense outside its own boundaries, it nevertheless has power to command its own citizens wherever they may be. As regards them it may issue commands for the regulation of their conduct while they are abroad. "The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens." [2]

Such extra-territorial commands must be limited, as has just been said, to regulating the conduct of persons who owe the state obedience; and the jurisdiction is in fact exercised only in the passing of criminal laws forbidding the doing of acts,[3] and is not used, whether it could be so used or not, for the purpose of creating rights arising out of acts abroad. This jurisdiction must yield to the jurisdiction of the state where the act is done: and an act justified by the law of the latter state in its territory will not be punished by the state of allegiance.[4]

[1] Ohio v. Chattanooga B. & T. Co., 289 U. S. 439, 77 L. ed. 1307, 53 Sup. 663 (1933).

[2] Story, J., in The Apollon, 9 Wheat. 362, 370 (1824).

[3] Regina v. Anderson, 11 Cox C. C. 198 (1868).

[4] Dobree v. Napier, 2 Bing. 781 (N. C. 1836); Regina v. Lesley, Bell, 220, 8 Cox C. C. 269 (1860).

§ 65.1. Acts the Consequences of Which Extend over a State Line. — The objects of jurisdiction are not only acts but the results of acts. It is always possible that an act may be initiated by its doer in one state, and its consequences may take place in another state. This situation needs careful analysis in order to determine the legislative jurisdiction of a state over the act or any consequence of it.

For this purpose we may classify the causation of interstate consequences according to the means taken to bring about these consequences; the following classes may be distinguished:

1. Action through a chosen instrument.

2. Action by the communication of intelligence.

3. Action through a human agent.

4. Action through the unintended course of events.

§ 65.2. Action through a Chosen Instrument. — Where one intentionally uses some non-human instrumentality to cause an event in another state, he is responsible for the event according to the law of that state. But if the instrument is employed in one state and becomes effective in a second, and the effect continues into a third, it seems clear that the law of either of these states has jurisdiction to make that one of the series of events which took place in that state the basis of a right. Suppose, for example, a person standing in state A sets a bullet going into state B, and there wounds a victim, who dies in state C. At common law there is but one offence: the impinging of the fatal force on the victim's body. If there is no statute, therefore, the actor may be punished for homicide in state B, where his bullet struck the victim's body,[1] and not in state A, where the bullet is set in motion,[2] nor in state C, where the victim dies.[3] But any one of the states, having jurisdiction in the matter, might by statute punish the homicide. Thus a statute punishing the homicide where the death takes place has been upheld;[4] and so has a statute punishing

[1] Green v. State, 66 Ala. 40 (1880); United States v. Guiteau, 1 Mack. 498 (D. C. 1882); Stout v. State, 76 Md. 317, 25 A. 299 (1892); State v. Gessert, 21 Minn. 369 (1875); Simpson v. State, 92 Ga. 41, 17 S. E. 984 (1893).

[2] United States v. Davis, 2 Sum. 482 (1837); State v. Hall, 114 N. C. 909, 19 S. E. 602 (1894); see State v.

Morrow, 40 S. C. 221, 18 S. E. 853 (1893).

[3] Reg. v. Lewis, D. & B. C. C. 182, 7 Cox C. C. 277 (1857); State v. Kelly, 76 Me. 331, 49 A. R. 620 (1884); State v. Carter, 3 Dutch. 499 (N. J. 1859).

[4] Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89 (1869); Ex parte McNeely, 36 W. Va. 84, 14 S. E. 436 (1892).

the act where the force is initiated.[1] In the latter case, the defendant mailed poisoned candy in California to a person in Delaware; the latter ate the candy and died. The defendant was convicted of homicide, under the statute, in California.

§ 65.3. Action through the Course of Events. — Where the result in a second state is the unintended consequence of an act in a first state, the jurisdiction of the second state would seem to depend upon the proximity of the result in question to the act in the first state. The state in which happen unintended consequences of an act done in another state has, it seems, jurisdiction over those consequences.[2]

§ 65.4. Remote Consequence of Defendant's Act. — If a consequence of defendant's act in the first state is some event in the second state, the responsibility of the actor in the first state may extend only to proximate consequences of his act or may also extend to remote consequences. On this important question there is not a great amount of authority; but the Supreme Court of the United States in the case of Young v. Masci decided that a man may be held responsible under the law of another state for the remote consequences of his act felt in that state. In that case a man in New Jersey lent his automobile to a friend who drove it into New York and there injured the plaintiff. A statute of New York provided that the owner of an automobile should be liable for an injury caused by one to whom he had lent the car. Upon a suit in New Jersey against the owner of the car it was held that the New Jersey owner was responsible under the New York statute [3] and this decision was upheld by the Supreme Court of the United States.[4] Mr. Justice Brandeis said: "When Young gave permission to drive his car to New York, he subjected himself to the legal consequences imposed by that state upon Balbino's negligent driving as fully as if he had stood in the relation of master to servant."

[1] People v. Botkin, 132 Cal. 231, 64 P. 286, 84 A. S. R. 39 (1901); 9 Cal. App. 244, 98 P. 861 (1908).

[2] This seems to be so clear a proposition that no court has ever been called upon to discuss it. Courts do, however, frequently assume jurisdiction in such a case, as in the well-known Salton Sea Cases, 172 F. 792, 97 C. C. A. 214 (1909).

[3] Masci v. Young, 109 N. J. L. 453, 162 A. 623 (1932).

[4] Young v. Masci, 289 U. S. 253, 77 L. ed. 1158, 53 Sup. 599 (1933).

§ 66.1. Action by the Communication of Intelligence. — Where a letter is posted in one state and received in another, the entire transaction of communication between the parties is accomplished by an act in one state followed by consequences in the other state. In a series of cases concerning the competence of the English county courts, which could entertain suit only when the entire cause of action arose in the county, it was held that consent expressed in a letter was given both where the letter was mailed and where it was received:[l] the letter "has a continuous effect, and speaks in the place where it is received." [2] On that ground, where a crime is committed by sending a letter through the mail, it may be punished either at the place of mailing [3] or at the place where it is received.[4] Accordingly, where a promise is made by mail, either the state of mailing or the state of receipt has jurisdiction to make the promise binding; and the same thing is true when a promise is made by telegram. At common law, the promise is complete on mailing, and if by the law a contractual obligation is created it is valid,[5] and no later act in the chain of events such as the receipt of the letter of acceptance can have that same result; for only the one obligation can be created between the parties by the single offer and acceptance. If, however, by the law of the place of mailing there is no contractual obligation, such an obligation may be created at the place where the acceptance is received.

The cases heretofore considered, with one exception, were cases where either the acceptor posted his letter of acceptance or sent his telegram himself or at least where it was done through an agent who acted in the same place where the principal was or else the mailing or the sending of the telegram was

[1] Taylor v. Jones, L. R. 1 C. P. D. 87 (1875); Evans v. Nicholson, 32 L. T. N. S. 778 (1875).

[2] Lindley, J., in Bennett v. Cosgriff, 38 L. T. N. S. 177 (1878).

[3] United States v. Worrall, 2 Dall. 384 (1798); Rex v. Burdett, 4 B. & Ald. 95 (1820).

[4] In re Palliser, 136 U. S. 257, 34 L. ed. 514, 10 Sup. 1034 (1890); Com. v. Blanding, 3 Pick. 304 (Mass. 1825); People v. Adams, 3 Den. 190, 1 N. Y. 173 (1848); Lindsey v. State, 38 Oh. S. 507 (1882).

[5] Mail: Worcester Bank v. Wells, 8 Met. 107 (Mass. 1844); Household F. & C. A. I. Co. v. Grant, L. R. 4 Ex. D. 216 (1879); 1 Will. Contr. § 81. Telegraph: Garrettson v. North Atchison Bank, 47 F. 867 (1891); Perry v. Mt. Hope I. Co., 15 R. I. 380 (1886); Tillinghast v. B. & P. R. L. Co., 39 S. C. 484, 18 S. E. 120 (1893).

done through an agent who acted in the same place in which the principal directed him to act. The question, what happens if a letter is given to an agent to post at once and the agent posts it in a different state accidentally or intentionally, has come up in only one case and then it was decided without notice being taken of the point. In Worcester Bank v. Wells [1] the letter of acceptance was written in New York, but was actually posted in Providence. How the letter came to be posted in Providence rather than in New York is not stated. One may conjecture that it was given to a friend to post and that he forgot it until he reached Providence. At any rate, the place of posting was ignored by the court, which took the place of acceptance as the place where the letter of acceptance was written. It may be conjectured that this is the true view if the accepting party himself writes a letter of acceptance and then gives it to a friend or an office boy to mail. The place of acceptance would seem to be the place where the accepting principal acts. This is not a case of making a contract by an agent, for the person to whom the letter is given has no authority to make or not to make a contract. The contract, if made, is made by the party himself and the accidental place where the person directed to mail the letter happens to mail it should, it would seem, play no part in the place of contracting.

§ 67.1. Action through a Human Agent. — Where a person appoints an agent in one state to act in a second state, the second state has jurisdiction over the agent's act.[2] So where a married woman, who by the law of the state where she personally acts is not bound by her contracts, nevertheless becomes bound under the law of another state by sending her offer or acceptance of an offer into that state by agent.[3]

[1] Worcester Bank v. Wells, 8 Met. 107 (Mass. 1844).

[2] Baldwin v. Gray, 4 Mart. N. S. 192 (La. 1826); Chatenay v. Brazilian S. T. Co., [1891] 1 Q. B. 79.

[3] By personal agent: Thompson v. Taylor, 66 N. J. L. 253, 49 A. 544 (1901); Baum v. Birchall, 150 Pa. 164, 24 A. 620 (1892); Smith v. Frame, 3 Ohio C. C. 587 (1889). By mail: Robinson v. Pease, 28 Ind. App. 610, 63 N. E. 479 (1902); Bell v. Packard, 69 Me. 105 (1879); Phœnix M. L. Ins. Co. v. Simons, 52 Mo. App. 357 (1893); First Nat. Bank v. Shaw, 109 Tenn. 237, 70 S. W. 807 (1902). By delivery to husband, who mailed it: Milliken v. Pratt, 125 Mass. 374 (1878); First Nat. Bank v. Mitchell, 34 C. C. A. 542, 92 F. 565 (1899), criticising Freeman's Appeal, 68 Conn. 533, 37 A. 420 (1897), which takes the opposite view.

The actor may become subject to the law of the place where his agent acts not merely by intentionally sending his agent to do the act, but also by ratifying or adopting as his own an act done in his name in another state. His approval of the act and accepting its benefits may be regarded as at the same time subjecting him to the law that applies to the act and ratifying it. It is thus possible, under the law of the state where an act is done by an unauthorized agent, to hold the principal for the act by reason of his subsequent ratification.[1]

The act of ratification may form the consent to the proposal contained in the unauthorized promise; and if the state where the agent acts does not create an obligation, the state of ratification may itself do so.[2]

If, however, the agent carries out the instruction of the principal, but does so in a different state from the one where the principal authorized the act to be done, there is no subjection of the principal to the law of the state where the agent acts, and therefore no jurisdiction in that state to impose a liability. This point is neatly developed in two series of cases, involving the jurisdiction of a state to impose a duty on an absent person.

In the first series, a married woman placed her accommodation note in the hands of an agent, to be discounted for the benefit of the payee. She would not be bound by the law of the state in which she entrusted the note to her agent, but would

The case of First National Bank v. Mitchell was brought on the same contract that was passed upon in Freeman's Appeal, and the Supreme Court overruled the decision of the Circuit Court of Appeals on the ground that the matter was concluded and became res judicata by the judgment of the Connecticut Court in Freeman's Appeal; Mitchell v. First National Bank, 180 U. S. 471, 45 L. ed. 627, 21 Sup. 418 (1901). It is to be noted, however, that the Circuit Court and the Circuit Court of Appeals were acting as a Connecticut court since the suit originated in Connecticut and that in that court a finding of Connecticut law was not a fact and was not res judicata.

It may be questioned, therefore, whether the Supreme Court of the United States might not have affirmed the Circuit Court of Appeals on the ground that was taken in the Connecticut case and that it might therefore have had power to do so as deciding the question of federal common law. Nor is this case a new appeal of the same suit, and therefore it is not to be covered by the so-called doctrine of "law of the case."

[1] Van Reimsdyk v. Kane, 1 Gall. 371, 377 (1812; semble) Dord v. Bonnaffee, 6 La. Ann. 563 (1851); Hill v. Chase, 143 Mass. 129 (1886).

[2] Shuenfeldt v. Junkermann, 20 F. 357 (1884).

be bound by that of the place of discount; whether the note binds her would not be settled by determining whether the discount in the foreign state was within the apparent scope of the agency, which could bind her only by operation of the law of the foreign state. She could not be bound by that law unless she were subject to it. She would be subject to it if she had caused the act to be done there, by directing or contemplating its being done there, but she would not otherwise be subject to it. If she contemplated its use in the other state she is bound.[1] If, on the other hand, she did not contemplate its use in the other state she is not bound.[2] Suppose, conversely, she would be bound by the law of her domicil, but would not be by the law of the place where she contemplated the discounting of the note, and the payee discounted it at her domicil. She is bound; the act was within the scope of the agency, and no question of the conflict of laws is involved.[3]

Another interesting series of cases grows out of the various rules in different states as to the liability of stockholders for the acts of a corporation. Generally speaking this liability depends upon the law of the state of incorporation; for everyone who becomes a shareholder submits himself to that law.[4]

In some states, however, notably in California, statutes provide that stockholders in all corporations, foreign and domestic, shall be personally liable for all acts of the corporation within the state. Since this is an attempt to impose an obligation on an absent person, it can be effective only if that person subjects himself to the law of the state by personally causing the act to be done. This he does, if he joins a corporation expressly formed to act within the state in question. It has accordingly been held that where one becomes a stockholder in an Arizona corporation formed for the express purpose of carrying on business in California, he may be personally held, under the California law, on a note of the corporation made in California.[5] Mr. Justice Holmes said:

[1] First National Bank v. Shaw, 109 Tenn. 237, 70 S. W. 807 (1902) and cases cited in note 3 on page 317.

[2] Basilea v. Spagnuolo, 80 N. J. L. 88, 77 A. 531 (1910); see Union Nat. Bank v. Chapman, 169 N. Y. 538, 62 N. E. 672 (1902).

[3] F. B. Hauck Clothing Co. v. Sharpe, 83 Mo. App. 385 (1900).

[4] Leyner Engineering Works v. Kempner, 163 F. 605 (1908).

[5] Thomas v. Matthiessen, 232 U. S. 221, 234, 235, 236, 58 L. ed. 577, 34 Sup. 312 (1914). In the case of Pinney

"The law of the place where the business is to be done . . . may fail to operate for want of power over the person sought to be affected, but the charter leaves it open to that person to come in under it by assent. ... In this case the defendant expressed in writing his wish that the corporation should set up a hotel in California. It is true that he also desired and stipulated that he should be free from personal charge. But that is merely the not infrequent occurrence of a party bringing about the facts and attempting to prohibit their legal consequence. ... By force of the statute, if the corporation incurs a debt within the jurisdiction, the stockholder is a party to it and joins in the contract in the proportion of his shares. And while the statutes of California cannot force an agent upon a foreign principal, still, if he has created such an agency in advance, he has come within the jurisdiction by his agent, as in other cases of contract made within a State from outside, and will be bound."

Without such express assent to the doing of business in the state, the stockholder in a foreign corporation cannot be bound by provisions of the local law, where the stockholder is not domiciled in the state. This is illustrated by an important English case. An English company, formed to carry on mines "in the United States and Australia," made contracts in California; it was held that the shareholders were not personally bound.[1] The ground upon which the decision was put by all the judges was that the individual shareholder sued had not especially "authorized" the company to act in California on his behalf; and on this ground the case is to be distinguished from that just examined. Where, however, the stockholder in the foreign corporation is himself domiciled in the state by the laws of which he is alleged to be bound, he will of course be held liable, whether the corporation was expressly formed to do business there [2] or not.[3]

§ 70.1. Consequences of Violation of a Legal Duty. — A violation of a duty to be performed within the sovereign's terri-

v. Nelson, 183 U. S. 144, 151, 46 L. ed. 125, 22 Sup. 52 (1901), Mr. Justice Brewer said: "Parties may contract with special reference to carrying on business in separate States, and when they make an express contract therefor the business transacted in each of the states will be affected by the laws of those states, and may result in a difference of liability."

[1] Risdon I. & L. Works v. Furness, [1905] 1 K. B. 304, [1906] 1 K. B. 49.

[2] Pinney v. Nelson, 183 U. S. 144, 46 L. ed. 125, 22 Sup. 52 (1901); Thomas v. Wentworth Hotel Co., 158 Cal. 275, 110 P. 942 (1910); Thomas v. Wentworth Hotel Co., 16 Cal. App. 403, 117 P. 1041 (1911); Peck v. Noee, 154 Cal. 351, 97 P. 865 (1908).

[3] See the language of Mr. Justice Kennedy in Risdon I. & L. Works v. Furness, [1905] 1 K. B. 304, 315.

tory will be as effectual as the causing of an act within the territory to give the state jurisdiction to this extent over the absent person. This is illustrated by the ordinary case of imposing a right of action for damages upon the absent violator of a duty, a right the measure of which is determined by the law of the sovereign who imposed it, that is, the state of the place of performance of the obligation. The original duty to act, however, must have been imposed by a law having power to do it; a state having otherwise no jurisdiction could not by formally imposing such a duty on an absent person not bound to its obedience, claim to create an obligation out of the non-performance of the duty. This is illustrated by the Arkansas case of Beattie v. State.[1] This was a prosecution, under an Arkansas statute, for "herding, grazing, and permitting to run at large" certain cattle. It appeared that the defendant owned land in Missouri and Arkansas; that he turned his stock loose on the range in Missouri with no one to look after them, knowing that they were in the habit of going into Arkansas; and that on being turned loose in Missouri they did stray into Arkansas. On this evidence, the Supreme Court of Arkansas held that the defendant could not be convicted. The court said:

"The Legislature of this State has no power to punish a resident of Missouri for a lawful act done in that State. Nor do we think that it would alter the case if the defendant knew, at the time he turned them at large in Missouri, that they would probably come into Arkansas, for the Legislature of this State cannot compel the residents of Missouri who live near the State line to keep their cattle in inclosed lots or fields in order to prevent them from coming into this State, and we do not think it was the intention of this statute to do so. ... To undertake to arrest and fine a resident of Missouri because he does not prevent his cattle from straying into this State would be to assume a jurisdiction over the residents of that State never intended by the statute and beyond the power of the Legislature to confer."

If in this case there had been a legal duty on the defendant in Missouri to restrain his cattle, Arkansas would have complete jurisdiction, it would seem, over the consequences there of a failure to perform the duty; and, on the other hand, if he had done any affirmative act in Missouri which caused the cattle to go into Arkansas, he would undoubtedly have been liable under the law of that State for doing an act in Missouri which caused unlawful consequences in Arkansas.

[1] Beattie v. State, 73 Ark. 428, 84 S. W. 477 (1904).


The author several years ago wrote two chapters on the History and on the Doctrines of the Conflict of Laws. He had planned to omit these from this work, on the ground that they were of no interest to lawyers in practice. It has been pointed out to him, however, that the old and foreign authorities have been frequently cited in cases which have become leading cases on the subject, and are still often cited; and that it is of practical value, therefore, for a lawyer to be able properly to evaluate these foreign authorities, and to show that they are the outcome of a doctrine quite opposed to that prevailing in this country. These chapters have in fact been freely cited in the latest English book on the subject, Cheshire on Private International Law.

As a result of these facts and arguments, the author has decided to reprint the chapters in this Appendix, just as they stood twenty years ago. It must be pointed out that current doctrine in France and Germany has developed much during the period since the war; principally in the direction of giving much greater weight to the decisions of cases. On the whole, however, the current doctrines, as stated in this Appendix, have not been greatly changed.

In this country a new doctrine, that of the self-styled realists, has been put forward. It may be studied in current articles of W. W. Cook, Lorenzen, and Cavers. It is a very interesting doctrine, but one with which lawyers in practice have little concern; for it is admitted that the courts do not consciously accede to it. It is believed, therefore, that lawyers may use this Appendix as confidently as if it had been written this year.


§21. Identity of law in the Roman world: the ius gentium.

22. Roman law following the edict of Caracalla.

23. The rules of the Corpus Juris.

24. The barbarian incursions: personal tribal law.

25. The early middle ages: the law and the statutes.

26. Bartolus.

27. Baldus and the successors of Bartolus.

28. The contribution to doctrine of the early Italian school.

29. The later middle ages: the coutumes.

30. The French statutists of the 16th century: Dumoulin.

31. Argentré.

32. Guy Coquille and other writers of the early French school.

33. The Dutch statutists of the 17th century.

34. Huber.

35. The later French statutists of the 18th century.

36. Boullenois and Bouhier.

37. Summary of the doctrines of the statutists.

38. The beginning of modern law: Livermore.

39. Story.

40. The influence of Story on European thought.

41. Summary of this history.

42. Efforts to unify the law: international conferences.

43. Efforts to unify the law: comparative study.

§ 21. Identity of Law in the Roman World: the lus Gentium. — The history of the Conflict of Laws, as an actual branch of modern civilized law, goes no further back than the later law of Rome. The law of the states which preceded Rome have left no mark on the modern law and their study is of no historical importance.[1] The law of the Roman republic took no account of foreigners, and ignored their law. The Romans guarded their own law as a sacred possession for themselves and their children, not to be cheapened by extending it to foreigners. Yet, as foreign conquest and foreign commerce increased, it was impossible to leave

[1] An exhaustive study of the condition of foreigners and foreign law at an earlier time may be found in Catellani, i, 12-45 (oriental states); 46-107 (Greece); Laurent, i, 99-134.

their conquered subjects or foreign traders without the protection of any law. Rome could not take the enlightened step which England took, eighteen centuries later, in extending to its conquered subjects in India the benefit of their own law, while retaining for Englishmen their birthright, the common law. Instead of this, the Roman lawyers invented a uniform system of law of their own for dealing with non-Romans, the Ius Gentium, a part of the Roman law, administered as such by Roman judges. The Roman lawyer never dreamed of learning the law of the non-Roman and applying it in specified cases: in other words, he had no conception of such principles as are now included in our topic.[1]

§ 22. Roman Law following the Edict of Caracalla. — With the edict of Caracalla, however (A. D. 212), this situation was changed. Every person who could receive any recognition at the hands of the law became, by this edict, a Roman citizen, entitled to the ius civile. In Ehrlich's happy phrase,[2] "The Roman law then became, in a sense at least, the territorial law of the Roman empire. The principle of territoriality thus entered the law, for the first time in juridical history." But the habits and thoughts of a race cannot be changed by a mere scrap of paper; and the habits of thought about legal matters which the nations cherished before the edict continued thereafter. Though proud of its position as Roman, each province must nevertheless continue in the practice of such of its own laws as really controlled the actions of daily life. These old laws, abolished in theory as laws, continued effective as local customs; and every Roman governor must reckon with the local custom of his province, until in the slow process of time and education it became merged in the imperial law.[3]

Provincial law, then, under the guise of local custom, came for the first time into conflict with the civil law of Rome; and rules became necessary for the solution of these

[1] For a discussion of the beginnings of the topic among the Romans, see: Foelix, 4; Despagnet, 186; Catellani, i, 108; Bustamante, 239; Bar, § 10, p. 12; Meili, i, § 15, p. 69; Foote, xxiv; Story, 2. See also Huberus, ii, lib. i, tit. 3, s. 1; Meili, Int. Civil and Com. Law (tr. Kuhn), 53-58.

[2] In Rev. de dr. int. pr., iv (1908), 904. [3] Catellani, i, 165-196.

conflicts. The jurisconsults of imperial Rome wrote opinions, and the Emperors sent down rescripts to solve such conflicts; and in the end a considerable body of doctrine became embodied in the Corpus Juris.

§ 23. The Rules of the Corpus Juris. — The texts of the Corpus Juris created a body of doctrine as to the conflict of laws which may be briefly summarized as follows.


The power of the provincial official was bounded by the limits of his province. Within his province, however, he had full jurisdiction over all persons within the province for their acts there done, and also over persons born in the province and over persons there domiciled, though the question at issue might be an act done outside the province.

Dig. i. 18. 3. The praeses of the province has a right of imperium over the men of his own province only, and he has the right only while he is in the province; if he leaves it he becomes a private person. Sometimes he has imperium even over outsiders, if they commit any active offense. (Monro's tr.)

Dig. ii. 1. 20. An officer who exercises jurisdiction outside his local limits may be disobeyed with impunity. (Monro's tr.)

Dig. xlviii. 22. 7. § 13. If one agrees with this opinion, that whoever commits a crime in a province may be banished by the ruler of that province, it will happen that a man so banished must keep away from three provinces as well as from Italy: namely, that in which he committed the offense, that in which he was domiciled, and his native province. And if he is found to have different native provinces, owing to his own condition and that of his father or relatives, we say that he is consequently banished from even more provinces.

Cod. iii. 15. 1. It is well known that prosecutions for crimes should be instituted where they were committed or initiated, or where the accused are found. (Auth. qua in provincia. In whatever province one commits a delict, or is prosecuted for money or crimes, whether with respect to lands, or boundaries, possession, property, or mortgage, or any other matter, there let him be subject to the law. Nov. lix. c. 1. pr.)

Other passages often referred to upon this point are: Dig. xlviii. 22. 7. §§ 1 and 10; Cod. i. 3. 10; Cod. iii. 24. 1.

These and the later cited passages from the Corpus Juris may be found in Beale's "Bartolus on the Conflict of Laws," Appendix.


Personal status legally created under another law continues to exist, and is recognized, in so far as it is not inconsistent with the Roman law. The law which properly creates status is the law of the domicil. An incapacity which does not affect personal status has no extra-territorial effect.

Cod. iv. 42. 2. We forbid the transfer to the ownership of anyone in any way whatever of men of Roman race who have been made eunuchs, whether in barbarian or in Roman territory; and the most severe punishment is to be imposed upon those who have dared to do the act. . . . But we grant to all merchants or others the right to buy and sell in commerce, wherever they will, eunuchs of barbarian race, who have been made outside the territory subject to our jurisdiction.

Cod. viii. 49 (48). 1. If the law of the city in which your father emancipated you gave such jurisdiction to the duumvirs that even foreigners might emancipate their sons, what your father did is binding.

Dig. xxvi. 5. 1. The praeses of a province may give a tutor only to those who belong to his province or have a domicil there.

Dig. iii. 1. 9. When a man is forbidden to move on behalf of others on some ground which does not entail infamy, and consequently does not deprive him of the right to move on behalf of others in every case, he is only disabled from moving on behalf of others in the province in which the magistrate who pronounced the prohibition was praeses; the prohibition does not extend to any other province, though it should bear the same name. (Monro's tr.)


The law that governs property is the law of the situs. Thus rights in land are determined by the local custom; and land is taxed in the province where it lies. Property is administered where it is found. A mere chose in action however has no situs for this purpose, and must be transmitted to the debtor's domicil for suit.

Dig. viii. 4. 13. § 1. If it is understood that there are stone quarries on your land, no one can hew stone there . . . unless indeed there is a custom existing in those quarries to the effect that, should anyone desire to hew any such stone, he is at liberty to do it, if he first gives the owner of the land the customary payment in consideration thereof. (Monro's tr.)

Dig. 1. 15. 4. § 2. He who has an estate in another city ought to declare [his property for taxation] in the city in which the property is; for he should pay the land tax to that city in whose territory his estate lies.

Dig. xxvi. 5. 27. In case of a ward who has property both at Rome and in a province, the praetor may appoint a tutor for the property in Rome, the praeses for that in the province. (See also Dig. xxvi. 7. 39. § 3.)

Dig. xxvi. 7. 47. Tutors for Italian property found, at Rome, instruments executed by provincial debtors, which provided that . a sum of money should be paid at Rome, or wherever payment was demanded. I asked, where neither the debtors nor any property of theirs was in Italy, whether the collection of the debt belongs to the tutors for Italian property? I answered that if the contract were a provincial one the collection did not belong to them; but it was their duty to give information about the instruments to the tutors to whom the administration belonged.


An obligation is made where the act on which it rests is done, and in accordance with the law of that place; though upon this point there is some ambiguity in the texts. Damages accrue according to the law of the place of the wrong. A judgment validly rendered abroad is to be performed.

Dig. v. 1. 20. The correct view is that every kind of obligation is to be treated like [one founded on] contract, so that, wherever a man incurs an obligation, it is to be held that a contract was made there, though it should not be a case of a debt founded on a loan. (Monro's tr.)

Dig. xxi. 2. 6. If an estate be sold, the security against defect in title should be given according to the custom of the place where the sale was made.

Dig. xliv. 7. 21. Everyone is supposed to have contracted in that place in which he bound himself to perform.

Dig. xii. 1. 22. A loan of wine was made, and legal proceedings were taken to recover it. ... I asked to what locality the valuation should refer. He replied that if it had been agreed that restoration should be made at some particular place, the valuation should follow the price at that place. (Monro's tr.)

See also Dig. xiii. 3. 4; xxii. 1. 1.

Dig. xlii. 1. 15. § 1. The Emperor and his father have decided that the praeses of a province, if so ordered, shall execute a judgment given at Rome.


The maxim locus regit actum is established, both for ordinary acts and for the form of legal documents.

Dig. xxv. 4. 1. § 15. The custom of the place is to be regarded, and the womb should be inspected and the birth of the infant arranged by it.

Dig. xxix. 1. ult. The rescripts of the Emperors show that all who are of such a condition that they cannot make a will by military law, if they are seized and die in hostile territory may make a will as they will and can: whether it be the president of the province or anyone else who cannot make a will by military law.

§ 24. The Barbarian Incursions: Personal Tribal Law. —

With the incursions of the barbarians and their settlement as conquerors on Roman territory, permanently domiciled there, new principles for determining the application of laws necessarily came into existence. It was no longer possible for the Roman lawyer to ignore a foreign law, when it was the law of his conqueror. The tribal law of the German must now be considered by the lawyer, alongside the Roman law; and the principles adopted for the mutual accommodation of the two systems established some of the doctrines of the Conflict of Laws of the Middle Ages.[1]

The tribal law differed fundamentally from the ius gentium, previously applied to foreigners; the latter was Roman law, but tribal law was non-Roman law recognized perforce by Roman lawyers.

The problem was worked out by applying to the Germans their tribal law, while the Romans retained their Ius Civile.[2]

[1] On the development of the subject resulting from the barbarian invasions see: Asser, 7, 5, 2; Bar, 17; Bustamante, 245; Catellani, i, 197; Despagnet, 186; Foelix, i, 11; Meili, i, 72; Rolin, i, 32; Weiss, iii, 126.

[2] Several modern analogies will at once come to mind; the laws of the native races in India, the tribal laws of the North American Indians, and the consular laws in Oriental countries.

So far, it was a conflict of systems rather than of particular laws. Each party was judged in his own courts, according to his own law, and quite in accord with the settled Roman doctrine, actor sequitur forum rei.[1] In everything except the actual holding of land, therefore, there was no real conflict of laws; all law was personal in its application, and each man was obliged only according to his own law. Thus arose the "personal law" of the middle ages.

As to the only rights not covered by this system, rights in land, the law applicable was apparently that of the owner; and this was of course a real rule for solving a conflict, but one which had no influence upon the law in subsequent times. The notion of personal law, however, first established during this period, continues in force today.

§ 25. The Early Middle Ages: the Law and the Statutes. — The tribal law gradually became assimilated with the law of the land, or rather, in many parts of the empire, more or less completely absorbed the Roman law; though in theory every part of the empire was during the early Middle Ages governed by imperial law, however much the imperial law of one portion of the empire might differ from that of another portion.[2] But throughout the empire, and especially in Italy, city-states developed, and each of these had its own local ordinances, or statuta.[3] These statuta were not only in derogation of the imperial law; they were in conflict with it in many points, and some means had to be found for resolving the conflict.

The principle finally adopted for this purpose was developed from the Code, by the commentators and glossators on the first title of the Code;[4] or rather, it was "founded on texts of Roman law and on the nature of

[1] Savigny, Hist. Roman law (tr. Cathcart), i, 151.

[2] Savigny, Hist. Roman Law (tr. Cathcart), i, 156.

[3] The word Statutum appears originally to have been limited to city ordinances; afterwards it was extended to the local law of other subordinate governmental or quasi-governmental bodies, like the French provinces, the medieval gilds, and the religious corporations. The broader use in England, as meaning lex, was elsewhere unknown in the Middle Ages.

[4] For the development of our subject by the commentators on the Code, and especially by the "Post-Glossators," see: — Bustamente, 261; Catellani, i, 266; Despagnet, 191; Lainé, i, 93; Laurent, i, 273; Meili, i, 77; Rolin, I, 54; Weiss, iii, 15; Westlake, 16.

things." [1] The point of text upon which the discussion was hung was the very beginning of the Code:[2] "Cunctos populos quos clementiae nostrae regit imperium . . . volumus," etc. The commentary was begun by Accursius, who wrote: "If a Bolognian makes a contract at Modena, he shall be judged by the statute of Modena, though he is not subject to it."

The work of the commentators consisted chiefly in putting and solving cases, as in this example from Accursius. A similar passage may be cited from the Speculum Juris of Gulielmus Durantis (1237-1296):[3]

"Suppose a Fleming died at Genoa and there in his will made his wife his heir. According to the custom of Genoa a wife cannot succeed her husband, and so the possessor of the goods refuses to deliver them; but in Flanders there is the contrary custom, and the woman takes. Decide that the woman's case is best in obtaining the inheritance, according to the custom of Flanders, by which she is bound."

§ 26. Bartolus.- — The principal author of this time was Bartolus of Sassoferrato (1314-1357), a professor of law at Pisa and Perugia, the greatest of the school of post-glossators, so-called, and one of the most distinguished lawyers of the Middle Ages.[4]

The fame of Bartolus, says Savigny,[5] surpasses that of every jurist of the Middle Ages; a fame all the more remarkable because he died at an age when many others are just beginning to be known. And Laurent adds:[6] "The reign of Bartolus was long at the bar and in legal science. Some called him the father of law, others the lamp of law. They said that the substance of truth was found in his works and that advocates and judges could do no better than to follow his opinions."

[1] Lainé, i, 306. [2] Cod. i. 4.

[3] Book 2, Partic. 3, §5, ver. 2 (ed. 1602, pt. ii, p. 785).

[4] For the influence of Bartolus upon the doctrine of the Conflict of Laws, see: Catellani, i, 327; Lainé, i, 131-163; Laurent, i, 299; Meili, i, 80; Weiss, iii, 15; Beale, " Bartolus on the Conflict of Laws"; Montijn, Aanteekening, etc.; Rattigan, in Journal of Society of Comparative Legislation, N. S., v. 230; Meili in Zeitschr. 1894, 258, 340; 1895, 363, 446. Woolf, in his Bartolus, deals with Bartolus as a political thinker; his bibliography enumerates several works and articles on Bartolus from that point of view.

[5] Geschichte des Romischen Rechts, vi, 136.

[6] Droit civil int. i, 299.

While Bartolus's doctrines were fortified by the writings of his predecessors, as well as by the texts of the Corpus Juris, he found in these sources only the germs of the general principles that he formulated. To him is due the entire credit for discovering and stating a body of principle on the Conflict of Laws which will still repay careful study.[1] The following is an attempt at a summary restatement of these principles.

1. Contracts. A contract is governed, both as to its form and as to its intrinsic validity, by the law of the place of the maker; but in all that has to do with performance, including the prescription libératoire or discharge by lapse of time, it is governed by the law of the place of performance.

2. Wrongs. Torts and crimes are governed by the law of the place of acting.

3. Wills. Wills are governed as to their form by the law of the place of making; as to testamentary capacity by the law of the domicil of the testator. A will good by the proper law passes property everywhere, even in a place by the law of which the will is not valid; and conversely, a will not valid by the proper law passes the inheritance nowhere, even in a place to the law of which the will conforms.

4. Property. The regulation of property is according to the law of the situs; and this law applies to and determines the validity of any attempted transfer of the property in another place.

5. Judgments. Ordinary foreign judgments are freely executed upon property within the state. Penal judgments, however, are not executed in another state, even though they run against property alone. If the judgment has affected the status of the guilty party this status of course remains though he go into another place.

6. Procedure. All matters of form of action and procedure are governed by the law of the forum.

7. Statutes. A considerable part of his work is devoted to a consideration of the jurisdiction of statutes. In order to appreciate this portion of the discussion, it should be

[1] Bartolus' work on the Conflict of Laws has been translated into English in full, Beale, Bartolus; and a summary in French may be found in Lainé, i, 131-163.

remembered that the condition of medieval Italy was not unlike that of the United States today in this respect: that the ordinary law was a common law, prevailing throughout the whole territory; while each city-state had the power to modify the common law by a statute. His doctrine may be briefly stated as follows.

Statutes regulating the form of an act, or giving official power to an officer, cannot operate beyond the territory; though an act done within the territory, or an official act within the territory, in conformity with the statute, would be valid in its effects outside as well as within the territory.

Statutes regulating dealings with property apply only to property within the territory; but as to such property they apply to dealings outside as well as within the territory.

Statutes regulating the capacity of persons are either favorable or burdensome in their regulations. All provisions for the benefit of a citizen of the state follow him wherever he goes; unfavorable restrictions apply within the state only.

Punitory statutes apply to crimes committed within the state by any person, citizen or stranger. As to citizens acting outside the state, the statutes apply if their terms expressly so provide, otherwise not. As to acts done outside the state by a foreigner against a citizen, Bartolus (differing from most of his predecessors) is strongly of opinion that the statutes cannot be made applicable.

As an example of the method of Bartolus, his discussion of the jurisdiction of a state to punish a crime committed beyond its borders upon its citizen may be quoted:

"Sometimes a foreigner offends a citizen beyond the territory of the city, and a statute provides that the foreigner should be punished here; would this be valid? It has been held so, just as a layman offending a clerk is tried in the ecclesiastical court. Moreover, everyone, even a stranger, is subject to the jurisdiction of the place in which a crime is committed.

"Now if the crime is committed in a place subject to the city, upon the person of its citizens, the case is clear; but that does not cover this case. In the case put of the offense against a clerk, the reason is that he commits sacrilege, which is an ecclesiastical crime, and therefore pertains to the church. And that phrase above quoted which runs, jurisdiction of the place, etc., I understand to mean, jurisdiction of an immovable thing, like territory, not of a movable or self-moving thing. State the rule thus, therefore; such a statute is not valid, because a city cannot legislate beyond its territory upon persons not subject to it."

One of the most striking things about the work of Bartolus is the modern tone of his opinions, though his conclusions are based on reasoning that is medieval in form. So far was his philosophy of the subject in advance of the capacity of his successors, that from the time of the earliest French writers until a few years ago many of his suggestions were misunderstood and ridiculed.

The point on which his doctrine was most seriously criticised by the early French school was his distinction between statutes which apply to a thing and statutes which regulate personal capacity. Having stated his general principle, Bartolus thus put the case on the solution of which he has been bitterly attacked:

"A doubt may be raised on some such question as this. It is the custom of England that the eldest son succeeds to all the goods. Now one having goods in England and in Italy dies; the question is, what law governs. . . . Either the provision is made about a res, as by these words: 'The goods of decedents shall go to the first-born'; then I should adjudicate as to all the goods according to the custom or statute at the place where the things are situated; for the law affects the things themselves, whether they are possessed by a citizen or a stranger: — or else the words of the statute or of the custom make provision about a person, as by these words: ' The first-born shall be heir'; then either such decedent was not an Englishman, though he had possessions there, in which case such a statute does not affect him and his sons, because a provision about persons does not affect foreigners, as was said above: or such decedent was English; and then the first-born succeeds to the goods which are in England, and to the others he succeeds at common law, according to what the said doctors say; because either this is said to be a statute which deprives the younger sons, in which case, since it is odious, it does not affect goods situated abroad, as was proved above, or you call the statute permissive in removing an obstacle so that the younger sons may not interfere with the elder, and that is the same, as has been said."

This distinction of Bartolus between a statutory provision in rem and one in personam, differentiated by the mere order of the words, has been attacked by his successors as a mere verbal difference. It is at most, as Lainé points out,[1] an unfortunate illustration of a distinction which was one of the most original and ingenious discoveries of the great master; a discovery which his contemporaries could not make, and his successors for five hundred years failed to understand. Yet the distinction is a necessary one; a statute might well be interpreted either as determining personal status or as affecting the inheritance of property. The very question which Bartolus was discussing arose in North Dakota in 1899, and the same distinction was made.[2]

§ 27. Baldus and the Successors of Bartolus. — Baldus, the pupil and immediate successor of Bartolus, was his only successor among the Italian jurists whom it is necessary to mention. Baldus de Ubaldis (1327-1400) wrote voluminously upon all branches of the law; upon the Conflict of Laws principally, like Bartolus, in his comment upon the law "Cunctos Populos."[3] His chief independent conclusion was as to the status and capacity of persons. Capacity, he thinks, is governed by the law of the domicil, "because it is as if he were a citizen."[4] He however speaks of a "mixed" statute, citing as an example a statute which gives a person testamentary capacity with his father's consent; the consent, he says, is not a matter of capacity, but of form.[5]

In general, the work of Baldus differs little in its conclusions from those of Bartolus. The later jurists of the fourteenth and fifteenth centuries occupied themselves with little more than elaborating the doctrines of Bartolus with new cases.

§ 28. The Contribution to Doctrine of the Early Italian School. — A consideration of the work of Bartolus will make it clear that a very considerable body of doctrine was formulated by him, and that if it had been naturally developed it would have given us a well-rounded science. Unfortunately the Renaissance which followed drew the most

[1] i, 158-161. See, among the attacks upon Bartolus for this distinction, Argentré, Art. ccxviii, No. 24; Froland, i, 28-30; Boullenois, i, 20. In defence of Bartolus, Laurent, i, 299-301; Catellani, i, 338 n. (5).

[2] Eddie v. Eddie, 8 N. D. 376, 79 N. W. 856.

[3] For the work of Baldus see Lainé, i, 166-178; Meili, Int. Civil and Comm. Law, 68.

[4] Comm. Cod. i. 1, § 59. [5] Ibid.

brilliant minds away from the scientific study of law; and the development of doctrine fell into the hands of a class of narrow and formal legists, whose interest centered rather on the distinction between different kinds of statutes than on the more fundamental and important principles. Expressions of Bartolus and Baldus, used by them descriptively only and not as terms of art, were seized upon as containing in themselves the whole gist of the matter; and further discussion of the subject became a struggle to attain the unattainable, namely, a criterion for distinguishing from one another statutes real, statutes personal, and statutes mixed.

It is to be noticed that neither Bartolus nor his Italian successors worked out the artificial system of the later authors, for which they have often been made the sponsors. They did not divide all laws into statutes real and statutes personal; indeed, as has been seen, the treatment of statutes in the works of Bartolus and Baldus forms only a small portion of their doctrine. Nor were the terms statute real and statute personal used by them in their later technical significance. To them, if they used the phrases, they meant statutes relating to things and statutes relating to persons; the terms in themselves possessed no jurisdictional connotation.

§ 29. The Later Middle Ages: the Coutumes. — As the scene of the development of law shifted from Italy to France another political condition was found, which materially influenced the doctrines of the Conflict of Laws. France was a confederation of provinces, each with its own law, which was called "custom"; and the customs of northern France • retained small traces of the Roman law. The custom of Normandy, for instance, was almost pure Germanic law. On account of this sharp departure from Roman law the custom was no longer regarded as a mere exception to a universal law; the custom was in fact the true and substantially the only law of the land. It is a favorite trick of European modernists in law to speak of the customs as feudal, and of their territorial quality as derived from the feudal system.[1] As a matter of history, it must be clear that it was not the feudal system, but the territorializing

[1] E.g., Laurent, i, 266.

of the tribes that gave territorial character to the customs. The tribal law of the Burgundians became the custom of Burgundy; the tribal law of the Normans settled down into the custom of Normandy. And modern France, made up of its confederated provinces, had as many territorial laws as there were formerly semi-independent provinces.

The "coutumes" of France inherited from the city laws of Italy the name "statuta," [1] although before the later reception of the Roman law there was no conception of a paramount imperial law from which they derogated. The local law therefore came to be regarded as the proper law, and it ordinarily prevailed in case of conflict. One is tempted to say with Weiss[2] that the territoriality of the customs almost superseded the personality of law; though the statement of Bar[3] that the personal law never absolutely disappeared is quite accurate. In fact, it was as impossible then as it has since been and always must be to disregard foreign laws; and the claims of personal status were always compelling. "The territoriality of law, and justice: there are the two forces whose collision gave rise to the theory of statutes."[4] But since tribality could no longer be the basis of this personal law, and, the provinces not being independent states, nationality was impossible, domicil was substituted for tribality as determining the law of personal relations.[5]

A new element had been brought into the subject by the fact that the provinces of France, though politically parts of a common country, were legally distinct units, and the law henceforth developed as a body of principles regulating the conflict of independent laws. "It was not a conflict between the law of France and of another state, but between two laws, both French; but it was at bottom the same difficulty, and it ought to be solved in the same way. To express the identity of the situation, one may suggest the idea that the different provinces of ancient France, with their customs and their peculiar institutions, guaranteed by the treaties of annexation, were in most respects so many distinct nations."[6]

[1] Guyot's Répertoire de Jurisprudence, s. v. Statuts: 1st ed., vol. lix.

[2] iii, 134.

[3] 23-25, §16.

[4] Lainé, i, 74. [5] Bar, 21, § 15. [6] Vareille-Sommières, i, 5.

§ 30. The French Statutists of the 16th Century: Dumoulin. — It has been seen that the "coutumes" inherited from Italy the name "statuta"; and the French writers before the sixteenth century made use of this name to distinguish the subject on which they wrote.[1] They carried out, and applied to the new conditions, the theories of Bartolus as far as wit was given them to understand and follow them.

With the sixteenth century, however, two great lawyers arose in France who developed the traditional view, and put it on a new footing. These two men were Dumoulin and Argentré.

Charles Dumoulin (Molinaeus)[2] was born in the year 1500, and died in 1566. He was a great jurist, whose writings form the beginning of a distinctively French law. He was the connecting link between the early Italians — the school of Bartolus — and the French law.[3] He has been called "the most famous lawyer of France and Germany." He accepted the doctrine of the statute personal, as developed by the Bartolists. His contribution to the development of the law was his doctrine that the law gave all possible scope to the freedom of the will of an actor; from which it followed that a contract, being a legal expression of the freedom of the will, was to be governed by the law to which the parties consented.[4]

The first statement of this doctrine is found in his Commentary on the Code, i. 1.[5] "A statute either speaks of things which have to do with the mere form and solemnity of an act, when we always look to the statute or custom of the place where the act was performed; . . . or it speaks of things which go to the merits of the case and affect the decision; either things which depend on the will of the parties, or things that can be changed by them. In that case the circumstances bearing on the will are to be examined; one of which is the statute of the place where they make their

[1] For the earlier French Statutists, see: Bustamante, 287; Catellani, 381; Lainé, i, 269; Laurent, i, 335, 484, 521; Meili, i, 87; Rolin, i, 67; Weiss, iii, 45.

[2] Lainé, i, 223; Meili, i, 92; Meili, Internat. Civil & Comm. Law, 74: Weiss, iii, 19.

[3] Lainé, i, 225.

[4] See particularly the analysis of his doctrine in Weiss, iii, 19.

[5] Conclusiones de Statutis, Works (ed. 1681), iii, 554.

contract, and also the past or present domicil of the parties, and other circumstances. As, where there are differences in measures, if property is sold by measure, or warranted, or measured, the measure which prevails at the place of contracting should not at once be applied, but that of the place in which the property is to be measured and delivered and execution made."

This passage is not of a revolutionary nature; it is obvious that the author has in mind merely the interpretation of the agreement. The idea however was developed and extended so as to cover everything which might be within the power of the parties.

The most important application of this doctrine was to marital contracts, that is, to agreements between the parties to a marriage as to the disposition of the property of the spouses. As to this, Dumoulin invented his celebrated doctrine of tacit consent to the terms of the law under the jurisdiction of which the marriage took place.[1] This was more carefully worked out in one of his opinions.[2] Spouses were married in Paris where community of goods resulted; goods were situated and acquests made elsewhere; what law governed them? It is objected that the law of Paris cannot extend to them. "These objections would be sound if the community of goods were supposed to be caused by force of the custom; but it is not so. It is created by the true consent of the parties; for those who contract in the place of their domicil are supposed by that very fact to contract and agree in accordance with the ways and the notorious custom of that place, unless it is otherwise expressed. . . . And it is to be noted that the custom is not fixed in the contract as public law, or as true binding custom, or by way of law, custom, or statute of public obligation; but as part of the contract, as private and conventional law, willed, laid down and provided by the contracting parties."

§31. Argentré. — Bertrand d'Argentré (1519-1590),[3] a Breton, lawyer, historian, and man of affairs, broke more completely than Dumoulin from the Italian system, and stated what may be called the distinctive principles of the French statutists. The Bartolists had regarded the statutes of different sorts as being far from exhaustive of the law; many if not most questions were governed by the common

[1] Ibid., 555.

[2] Consilia, liii, 3 and 4; Works, ii, 964.

[3] Lainé, i, 310-341; Meili, i, 88; Weiss, iii, 23; De la Lande de Calan, Bertrand d'Argentré; Meili, Argentraeus und Molinaeus, in Zeitschr. v, 363, 452, 554.

imperial law. Argentré, dealing with a "custom" which comprehended every relation of life in its operation, both regarded his statutes (i. e., customs) as comprehending the whole body of law, and placed the principal emphasis on the statute real, the law of the land.[1] The personal statute could not govern, for instance, property beyond the territory; it could only affect the status of the person, the pure person, to use his phrase. He also admitted the third category of "mixed" statutes, which seems merely to be a method of bringing under the domain of the law of the land transactions in which a relation is established between persons and things.

The doctrines of d'Argentré may best be stated in his own words, especially as he has put them clearly and succinctly. The general principles upon which he proceeds are as follows:[2]

"When it is a question of things affixed in the soil, that is, immovables, or as they are called, matters of inheritance, and different places and situations are assumed for different possessions, and controversy arises as to what law governs with respect to acquiring, transferring, or enforcing rights, it is a principle thoroughly fixed by precedent that that law out of many should be observed which belongs to the place; and its own laws, statutes, and customs should be observed in every place, and whatever customs are accepted concerning things, territory and the limits of power: so that about such things there is no force in any law except that of the territory. So it is provided in the case of contracts, in the case of wills, in the case of all transactions and in the case of places of bringing suit, that nothing may be decided with respect to immovables by private consent against the law of the situs; and it is right that it should be so judged. . . . But it is different with regard to the law of persons; in which are also included movables, because such things are bound by no other law than the person itself, and so they derive their law from the place of domicil. Therefore when the question is about the law of the person or about capacity for civil acts the power is universally that of the judge who judges at the domicil; that is, the one to whom the person is subject, who can so decree in his case that what he determines, adjudges, and ordains about the right of persons shall obtain everywhere the person goes, on

[1] Lainé, i, 337.

[2] Commentaria, Art. ccxviii, glossa 6, §§ 2, 3, 4, 7, 8, 9, 11, 12, 13; Works (ed. 164), i, 647-649.

account of its being, as we say, affixed to the person. . . . The thing may be clearer if examples are given of personal statutes; those, that is, where it is a question chiefly of the right, condition, and quality of persons without consideration of any material thing: as, that one should be declared and held of full age and competent with respect to his acts anywhere who has passed the twentieth year of his age, which is our law, or the twenty-fifth year, which is that of Paris; or when a married woman is made incapable of all power of contracting or obliging herself, and it is claimed that a transaction is therefore not binding; or when those who are subject to the power of another are claimed to be incapable of being legally bound; or when it is provided about children that they should be in the power of the father; or when the administration of property is forbidden to a prodigal.

"Real statutes are, for instance, those which make provision about the method of dividing the inheritance, whether per capita or per stirpes, or such; even though sometimes it is necessary to inquire into the condition of persons, as, whether they are noble or ignoble, so that the statutes might seem to be mixed. Likewise those which make provision as to the form of transferring property. ... So of the question whether a legacy may be left in a will to a husband by a wife, because it is a question of immovables and things pertaining to the soil (although it contains a mixed consideration about persons), since the incapacity due to marriage is applied to a thing annexed to the soil; for if it were a question only of movables, it would seem to be personal altogether. So of this question, whether during the existence of the marriage the spouses can transfer things annexed to the soil.

"Examples of mixed statutes occur when by a change of person the rule as to the method of dividing the family inheritance is changed; as when immovables are equally divided because the heirs are pagans. For in the case of the property and estates of nobles the division of property is other and different. Here therefore the condition of the persons alters the judgment as to division of the inheritance.

"Finally, to be personal the question must be purely about the status of persons, without any mixture of immovable things and abstractly from every material thing. For if you legislate thus: he is a minor, because he was born within twenty years, that is personal; but if thus: a minor shall not convey an immovable which is within our territory, that is mixed of real and personal."

"Things which are real or mixed without doubt so pertain to the situs of places and things that they cannot be judged in accordance with any laws other than those of the territory. These are not, to be sure, in force outside the boundaries of the legislator; but conversely, within those boundaries they are not controlled. However unlimited may be the freedom of commerce in contracts, wills, and the doing of business by the Roman law, yet this liberty is limited in this way, that it yields to the customs and laws of the place; . . . for the force of limited power is limited. Whence it follows that if a man has several estates situated in different countries, they are governed, held, transferred, acquired by different customs, laws, and conditions, just as if they were the several estates of several persons; because as often as one and the same thing is governed by more than one law, it is to be taken for several things. One and the same man occupying different magistracies or holding different offices is considered as different persons and as another man than himself, even though he has one and the same body. . . . For every officer, beyond the limits fixed or proper to the office, is a private person; and the jurisdiction and exercise of limited power are limited. So, also, statutes are without effect outside of their own territory, since outside this no one can be terrified, which is the definition of territory; and so the Emperor rightly adds to the phrase 'cunctos populos,' the phrase ' quos clementiae nostrae regit imperium'; although the scholastic writers mix up with this relative phrase many things outside the subject.

"But statutes which are framed in personam are governed by another law; for since persons are hedged in from going outside by no bounds of territory or city walls, and since unlimited freedom of changing their situation is given to them, the statute is to be effective in punishment and to have a location elsewhere, whenever the person desires to take that place for his domicil. Because when anyone acts outside his domicil he is not freed from the laws unless he changes his domicil; from which it happens that a person affected by the law or custom of his domicil in any way whatever is governed by it perpetually, so that he may not free himself by a mere change of place. Wherefore infamy follows in every place a person infamous by the laws of his domicil, and interdiction follows a person interdicted."

§ 32. Guy Coquille and the Other Writers of the Early French School. — The other writers of the early French school, successors of d'Argentré, were numerous and undistinguished.[1] One of his contemporaries, however, is sufficiently important for special mention. Guy Coquille[2] (1523-1603), author of a learned work "De la Coutume de Nivernais," as well as other legal works, was one of the famous French men of law of the sixteenth century. On the subject of the Conflict of Laws he based his doctrine upon a distinction between the statuta of Italy and the coutumes of France.[3] The statuta, he argued, were in derogation of the Roman law, and therefore had a limited application; while the coutumes were not merely the local law, but the only law, and had not a limited but an all-powerful application. In this respect, of course, he was in agreement with d'Argentré; but his conclusion was different. D'Argentré's argument had been, substantially, that the local law, being all-powerful, governed everything within the territory except in the case of a status which, having vested elsewhere, could not be altered by change of boundary. Coquille's conclusion was, that since the coutume was all-powerful it fixed the rights of persons governed by it so that they could not be affected by other laws. In other words, d'Argentré treated the statute real as the natural operation of legal power; Coquille so treated the statute personal.

"In general, I should say that dispositions and acts, which have their true origin in the human will, ought to be regulated by the custom of the place where the actor is domiciled."[4] "It seems to me that as a general question it is worth while to distinguish and discover whether statutes are personal or real; which I do not understand to depend on the mere husk of words, but on the intention with which the statute was passed; that is to say, the words either with respect to style or meaning are not regarded, but the presumed and apparent purpose of those who have created the statute or custom."[5]

The characteristic achievement of the French school of the sixteenth century was the working out of the theory of a statute real and a statute personal (together with the so-

[1] See a list of them, Catellani, i, 442; Lainé, i, 342-395; Meili, i, 91. See also Lainé, ii, 97; Weiss, iii, 35.

[2] Lainé, i, 297; Weiss, iii, 28. See also Lainé, ii, 388. [3] Lainé, i, 298. [4] Works (ed. 1703), ii, 275; qu. 227. [5] Works (ed. 1703), ii, 211; qu. 131.

called statute mixed). Starting with the conclusions of the Italian school, they developed them, through their application to a state of affairs where there was not merely difference of laws but difference of entire legal systems, into a thoroughgoing body of rules by which it should be possible to determine whether the local or the foreign law applied in each kind of legal relation. One school, that of d'Argentré, leaned toward the law of the land; another, represented by Coquille, was more inclined to the law of the foreign person; Dumoulin laid stress on the autonomy of the will. These doctrines led the jurists who held them to differ as to what laws were statutes real, what were statutes personal; a question upon which the statutists of all centuries have always found themselves unable to agree.

§ 33. The Dutch Statutists of the 17th Century. — The scene of legal development in this subject shifted in the 17th century to the Netherlands, where the creation of a confederated nation composed of legally independent provinces had the natural effect of stimulating interest in the Conflict of Laws; just as it had in France a century earlier, and in the United States two centuries later. A society inhabiting a number of federated provinces, each with its own law but united politically and socially into a single people, with constant inter-communication, requires a definitely fixed and workable body of principles for the solution of conflicts of law. The result was a rapid development of the science by a succession of able works.[1]

"It is no longer a question of regulating the spheres of several legislative powers in the same state, — statutes, customs, particular laws, — but of determining the legislative relations of mutually independent states. It is the first time this question has arisen in juridical science. Hitherto, international juridical relations were extremely limited. Foreigners were often submitted to a barbarous droit d'aubaine, and a desire to do justice to a foreigner, somehow or other, in accordance with his own law had seldom appeared. But in Holland and Belgium, where the provinces were in fact autonomous states, clinging to their condition of mutual inde-

[1] For an examination of the works of this school see Bustamante, 431; Catellani, i, 450; Lainé, i, 401; ii, 95; Meili, i, 95; Rolin, i, 76; Weiss, iii, 31; Westlake, 22.

pendence, it was possible neither to apply to the difference of law the Italian theory made with reference only to conflicts between local ordinances, nor to submit to the droit d'aubaine residents of other provinces united by community of blood and by ties of confederation."[l]

The earlier writers of importance were Burgundus (1586-1649),[2] Rodenburg (1618-1668)[3] and Paul Voet (1619-1677).[4] Burgundus directed the mind of his successors toward the reality of laws, leaving for the statute personal only questions of personal status and capacity. He parted from the French school in refusing altogether to regard property of any sort as attached to the person of the owner. He denied the accuracy of the maxim "mobilia personam sequuntur." "Goods do not follow the person," he asserted; "persons follow goods";[5] a witty epigram which contains much good argument.

The work of Rodenburg and of Paul Voet followed in the same line; indeed, Paul Voet proclaimed, forcibly and absolutely, the doctrine of territorial supremacy. "Just as a state which is not subject to another," he says, "is not bound by the custom of the other state, so the statute of one state cannot take effect, expressly or tacitly, in another state."[6]

A greater and more celebrated lawyer was his son, John Voet (1647-1714),[7] of whom Lainé said,[8] "he was the true founder of the Dutch school." Voet's doctrine can be stated fully, though concisely, in his own words.

"No statute, real, personal, or mixed can act of itself beyond the territory of the legislator, nor can it have any effect elsewhere, against the will of the legislator of another place. For since statutes can have no further power than they receive from the legislator who creates them, and the power of the legislator is limited by the bounds of his territory, it is obvious that all force

[1] Eugen Ehrlich, in Rev. dr. int. pr., iv (1908), 910.

[2] Lainé, i, 401-403; Laurent, i, 442-452; Weiss, iii, 31-34.

[3] Lainé, i, 404; Weiss, iii, 34.

[4] Lainé, ii, 97; Laurent, i, 452-457; Weiss, iii, 35.

[5] Lainé, i, 403. [6] Lainé, ii, 98.

[7] Lainé, ii, 97; Laurent, i, 457-484; Weiss, iii, 36.

[8] Lainé. ii, 388.

of the statutes themselves is shut in and circumscribed by the boundaries of the legislator.[1]

"I think that in the case of all statutes, whether real, personal, or mixed, or however otherwise called or classified, this is the correct rule: that statutes lose absolutely all their power outside the territory of the legislator, nor is the judge of another place obliged, as to things situated in his own territory, by any necessity of law whatever, to follow or approve laws not his own. But here perhaps some careful man may hesitate; if these things are so, how then does the idea happen to be commonly held that in case of successions, testamentary capacity, contracts, and other things, movables wherever situated should be governed by the law of the domicil, and not by the laws of those places in which they are naturally situated? For in accordance with this idea, the jurisdiction of the judge of the domicil appears often to operate beyond the territory of his legislator, upon things dispersed through the several territories of other magistrates whose jurisdiction extends to remote regions stretching toward the rising or the setting sun. . . . But if anyone regards these as legal fictions, alien to that natural reason which alone should be regarded in these cases, I cannot really oppose those who seek one common legislator to introduce and establish such fictions by his law; and yet I believe that this matter is to be ascribed to comity, which one nation manifests to the other, rather than to the rigor of law and the fundamental power which every magistrate has over movables situated in his territory.[2]

"But lest the guaranties of duty and of comity among neighboring nations be vague and uncertain, and often not mutual, and lest that should be denied to one which another had previously obtained by comity, those things which should always be guaranteed are often defined by treaty, or by long-continued customs which have the force of treaty."[3]

§ 34. Huber. — The great name of the Dutch school, at least for American scholars, is Huber; and his doctrines require more detailed consideration.

Ulric Huber[4] (1636-1694), professor at the Dutch University of Franeker, compressed in a few paragraphs, in his "Praelectiones Juris Romani et Hodierni," the general principles of the Conflict of Laws, in an essay

[1] Commentariorum ad Pandectas, lib. I, tit. iv, pars ii (de Statutis), § 5.

[2] Ibid., § 11.

[3] Ibid., § 17.

[4] Lainé, ii, 107; Meili, i, 98; Weiss, iii, 37n.

entitled "De Conflictu Legum Diversarum in Diversis Imperiis."[1]

"We have found three axioms for solving the subtlety of this most intricate question; which granted, as they seem everywhere to be conceded, appear to point out to us a straight way to the remaining question. They are as follows: I. The laws of any sovereignty have force within the territory of that country, and bind all subjected to it; but not beyond. II. All are considered as subjects of a sovereign who are found within his territory, whether permanently or temporarily there. III. Sovereigns out of comity act so that the laws of each nation, brought into existence within its territory, may hold their force everywhere so far as they do not prejudice the power of the law of another sovereign and his subjects. From which it follows that this is derived not merely from the civil law, but from convenience and the tacit consent of nations. Because as the laws of another nation can have no force directly in another territory, so nothing could be more inconvenient to commerce and international usage than if rights valid by the law of a certain place were at once made void by a different law elsewhere, which is the reason of the third axiom, which like the first seems to be accepted with no doubt. With respect to the second, some persons seem to judge otherwise, when they deny that foreigners are bound by the laws of the place in which they act; we agree that their view is true in some cases, and we shall consider those below. But both the nature of a state and its habit of exercising power over all persons found within the state, as well as the doctrine accepted among almost all nations about arrest of the person proves the correctness of this position: that all found within the boundaries of a state are accepted as subjects. 'One who contracts in another place subjects himself as a temporary subject to the laws of that place' (Grotius, 2, c. 11, n. 5). For the compulsion of foreigners, with no other cause than that they are found in a place, to submit to mesne arrest, has no other justification than the general principle that a sovereign has power over all who are found within his territory.

"Thence is derived this principle: All acts and transactions, as well in court as out, whether mortis causa or inter vivos, rightly accomplished according to the law of any particular place, are valid even where a different form of law prevails, by which they

[1] Praelectiones, ed. Macerata, ii, 55; ed. Menck (1707), ii, 23. This passage on the Conflict of Laws may most easily be found by an American scholar, translated into English, in Dallas' Reports, iii, 370 n.

would be invalid if transacted there. And on the other hand, acts and transactions done in a certain place contrary to the laws of that place, since they are void from the beginning, can nowhere be valid; and this, not only with respect to men who have a domicil in the place of the contract, but even with respect to those who happen to be there at the time: with this exception, nevertheless; if the sovereign of another country would be affected with a serious inconvenience thereby he would not be expected to give use and effect to such acts or business, according to the limitation in the third axiom."[l]

His doctrine as to personal status is as follows: "Personal qualities impressed upon one by the law in a certain place, surround and accompany the person everywhere, with this effect: that everywhere, persons enjoy and are subject to that law which such persons enjoy or are subject to in that other place."[2]

Huber shares with the whole Dutch school the conception of law as a unit, with no distinction of statute and law. His title is "De Conflictu Legum," and from his time, though the "statute personal" continued to form the theme of the lawyers in southern Europe, the title of the subject treated by him was fixed as the Conflict of Laws.[3]

Huber's doctrines have never been popular in France. Weiss, who gives large space to forgotten geniuses, dismisses Huber in a note; and Laurent in a section entitled "Jean Voet et Huber" gives to Voet twenty eight pages and to Huber four lines.[4] Yet of all the early authors, Huber's influence has been supreme with the English and American writers. Westlake[5] conjectures that this may be due to the resort of the Scotch advocates to the Netherlands; but this seems mere pedantry. So far as can be discovered, Scotch lawyers had no influence in the statement of the law by Story; and Story, as will be seen, shaped both American and English law. It may be said that the vogue of Huber in America was due in part to the accident of accessibility, but chiefly to the neatness and conciseness of his work and its ready application in a federal republic. His brief pithy paragraphs contained the germs both of Story's principle of vested rights, and of Savigny's doctrine of the proper law applicable

[1] Loc. cit., §§ 1-3.

[2] Ibid., § 12.

[3] Weiss, iii, II.

[4] Laurent, i, 457.

[5] Introd., p. 8.

to a juristic relation. His thought was allied to the Germanic rather than the Romance method of reasoning.

§ 35. The Later French Statutists of the 18th Century. — The French authors of the 18th century, with ideas somewhat modernized but not changed by the writings of the Dutch school, carried forward the work of the early statutists.[1] The two most prominent authors, Boullenois and Bouhier, will be considered below. Out of a cloud of lesser writers one alone, Froland, is worthy of separate mention.[2]

Froland (died 1746) published in 1729 his "Memoires concernans la Nature et la Qualité des Statuts." He accepted, in general, the conclusions of law of the earlier statutists; refusing however to follow in all respects d'Argentré's category of statutes mixed. His service to the growth of the law was not in framing a new theory; it was rather in examining patiently, case by case, the application of the theories of others to the actual facts of daily life, and especially to considering the theories in connection with the decisions of the French courts. In a characteristic passage he states the reasons which led him to this course.

"But are all these definitions, framed in different terms, yet signifying one and the same thing, capable in themselves and sufficient to enable us to recognize the nature and quality of statutes, so that there will be no more difficulty and no more danger of being mistaken in our decision? I fully agree that the statute real is concerned with a thing, the statute personal has to do with the person; and the statute mixed has to do with both thing and person, with those others who allow this third kind. But with all these distinctions the difficulties which I meet hundreds and hundreds of times do not seem yet removed; and my mind, hesitating because it is not sufficiently informed, often does not know what conclusion to reach. In my opinion it is not enough to know that the statute real has to do with the thing, that the statute personal has to do with the person, and that the statute mixed has to do with both thing and person. There is another difficulty much more important to solve; that is, to know when the statute does concern the thing or the person or both: and that, in my opinion, is the question most embarrassing and most difficult to

[1] On the authors of this school see Lainé, ii, 1; Laurent, i, 484; Meili, i, 111; Weiss, iii, 38.

[2] Lainé, i, 417; Laurent, i, 503-508; Weiss, iii, 43.

explain; and it does not appear to me that the old writers who were contented with general definitions have given us very certain rules in this particular."[l]

§ 36. Boullenois and Bouhier. — Louis Boullenois (1680-1762),[2] an advocate at the Parlement of Paris, published in 1732 a "Dissertation sur les Questions qui Naissent de la Contrariété des Lois et des Coutumes." After his death, in 1766, was published his "Traité de la Personnalité et de la Realité des Loix, Coutumes ou Statuts," of which the foundation was a translation of Rodenburgh's treatise.

Boullenois was much influenced by the Dutch school, accepting the theory of exclusive territorial power, limited in its operation by the will of each sovereign to allow the operation of foreign laws wherever the requirements of international intercourse called for such derogation from his powers.

Boullenois reduced his doctrines to forty-nine general principles, several of which may be quoted:

"1. The sovereign has the sole right of making laws, and these laws should be executed throughout his dominions.

"4. The sovereign has the right to make laws which shall govern foreigners: first, in respect to property within his sovereignty; second, with respect to the form of contracts made in his territory; third, with respect to suits brought in his courts.

"5. The sovereign may make laws to govern foreigners who are merely passing through his territory, but only with respect to simple police measures made for good order.

"6. In strict law, all laws which a sovereign makes have force and authority only within his own dominions; but the requirements of the general public welfare of nations have led to some exceptions with respect to civil commerce. On this ground the age of majority of the domicil applies everywhere, even with respect to goods situated elsewhere.

"23. The principal direct and immediate subject matter of a statute determines its nature and quality, that is to say, the subject matter makes it real or personal.

"24. The reason for a law should also determine its nature and quality, when this reason is so clear and exactly expressed, that no other reason can fairly be alleged for the law. Thus, the statute which forbids spouses to make mutual conveyances com-

[1] Memoires, i, 54.

[2] Lainé, i, 418; Laurent, i, 492-503; Weiss, iii, 38.

monly passes for real; because although one may say that its reason is to maintain peace between spouses, it is susceptible also of the reason that it preserves the property of each of them for their heirs. But it seems that it should be personal, if it is clear and certain that this defense was given to the spouses alone, in order to give rise to no occasion for trouble and disagreement: yet the authorities are to the contrary. They have considered only the nature of the thing forbidden, and not the reason for it.

"27. Both residents and non-residents are subject to real laws, unless they are expressly confined to residents.

"29. When the statute personal of the domicil is opposed to the statute personal of another place, that of the domicil prevails.

"30. But the statute personal of the domicil which is in conflict with a statute real, whether of the domicil or of any other place, yields to the statute real.

"33. Though movables follow the person and are governed by the law of the domicil, it is not as a personal law, but as the real law of the situs."[l]

During the discussion of these rules he laid down the following principle:

"If in any case it be difficult to distinguish the statute real from the statute personal ... it is necessary rather to regard the statute real than the statute personal."[2]

John "Bouhier (1673-1746)[3] was president of the Parlement of Dijon, and member of the Academy. He published in 1717 his "Observations sur la Coutume du Duché de Bourgogne," in which several chapters were devoted to the Conflict of Laws. Bouhier represented a reaction against the realism of the Dutch school; he derived his inspiration from the theories of Dumoulin, and magnified the statute personal at the expense of the statute real.

Bouhier's principal quarrel with the doctrine of Boullenois was upon the relative importance of the statute real and the statute personal. Accepting the general doctrine that the statute personal was in derogation of the statute real, he differed from Boullenois on the question of the presumption, if there were doubt, as to the reality or the personality of a law. On this point he wrote to Boullenois as follows:[4] "In doubt it is more natural that things

[1] Traité des Statuts, i, 2-11. [2] Traité des Statuts, i, 107.

[3] Lainé, i, 419; Laurent, i, 508-521; Weiss, iii, 41.

[4] Boullenois, Traité des Statuts, i, 107.

should yield to persons, because persons are nobler. Thus, in case of ambiguity in the statute it is much better to interpret it in favor of the person." He admitted that the weight of judicial decision was in favor of the doctrine of Boullenois, but he reprobated this "too blind deference to authority."[1]

The principal points of his doctrine may be stated as follows: "Speaking generally, it is quite indifferent to a nation whether a statute be regarded as real or personal, for what the nation might lose by one interpretation, it would gain on the other hand, so that the total result is equal. That being so, all considerations which should determine the action of the judges in reaching one conclusion or the other are those of public interest, when it is in agreement with the common law and with that equity upon which the principles of this law are based. This is the true clue which should guide us through the labyrinth of these questions."[2]

"First of all we must remember that though the strict rule restrained customs within their own territory, their extension has nevertheless been allowed in favor of public utility and often even of what might be called necessity. ... So when neighboring people have allowed this extension, they have not regarded themselves as submitting to a foreign law. They have done it only because they have found it to be for their own interest; and in similar cases their own customs have the same power in neighboring provinces. One may say, therefore, that this extension is based on a sort of international law and on comity, by virtue of which different nations are tacitly agreed to allow this submission of custom to custom whenever equity and common utility demand it, unless there is an expressed prohibition of law."[3]

"We attach to the phrase 'reality of customs' the idea of restriction, and to the phrase 'personality of laws,' the idea of their extension. The point is to make a just application of this principle to the different cases which may present themselves. On this point I take the liberty of proposing a few rules.

"1. Every statute which concerns incorporeal and invisible rights should be regarded as personal.

"2. Every statute which is based upon a tacit presumed convention of the parties is personal.

"3. Every statute which imposes a prohibition upon persons submitted to it, for whatever reason, is personal.

"4. Every statute which has to do with the external form of

[1] Observations, ch. xxiii, § 12; Works (ed. 1788), i, 655.

[2] Observations, ch. xxxvi, § 9; Works, i, 820.

[3] Observations, ch. xxiii, § 62; Works, i, 662.

acts and their authentication is personal, so that when the act is done in the forms provided at the place where it is done, it will be executed everywhere."[1]

This last rule will show to what lengths he was carried by his doctrine of judging whether a statute is real or personal by its effects.

§ 37. Summary of the Doctrines of the Statutists. — The statutists studied for the first time the conflict of independent laws, and sought for the particular law applicable to a given case.[2] The best criticism of their doctrine is its impotence. It was powerless to determine the actual affairs of life, because of its failure to develop an accepted rule for the determination of cases as they arose. When the opinions of the various authors are marshalled, as Livermore, for instance, marshalled them, their absolute inability to agree upon details is the most striking feature of their works. As a wise and witty Frenchman has said of them:

"I seem to see skilful masters of the art of fence begin by bandaging their eyes, and then rushing on in the rudest onslaughts, and with the help of a sort of industry resulting from habit and instinct sometimes meeting."[3]

This impotence to lay down a clear body of doctrine is emphasized by the divergence between attempted summaries of their doctrines.

The great French advocate, Merlin says, in his Repertoire, thus: "There are five principles on the matter of the personality and the reality of statutes which profound jurists have established and proved. They may be stated in a few words.

"The first is, that one should consider as personal every statute which confers on a person a certain status and condition.

"The second, that one should place in the same class permissive statutes conferring capacity in status upon persons, and prohibitive statutes making men incapable in status; because the permission or the defense which they deal with are so to speak only corrollaries of the personal status.

"The third, that a law which forbids a man capable in his status to do a particular act is personal if the object of the act is personal and real if the object is real. Thus, a prohibition to two spouses, of age, that they should not make conveyances one to

[1] Observations, ch. xxiii, §§ 60, 61, 64, 69, 75, 81; Works, i, 662-665.

[2] Jitta, Méthode, 41, 42.

[3] Mailher de Chassat, p. 33.

another is real, because it provides an exception to the general capacity which adult spouses have by their status to dispose of their property, and because its object is real.

"The fourth, that a law which allows a man who lacks capacity by his status to do a particular act is personal if the object is personal, and real if the object is real.

"The fifth, that the statute personal should yield to the statute real in case of a conflict between them."[1]

The doctrines are summed up in six general principles by The Count de Vareilles-Sommières, their latest modern apologist.[2]

"1. As a general rule the custom governs the conduct of all, domiciled or not domiciled, within the territory of the province. "2. As a general rule, the custom does not govern outside the province the conduct of anyone, domiciled or not.

"3. The statutes or the custom as to status and capacity follow the domiciled and are applied to them in other provinces.

"4. In some particulars, movables should be regarded as situated at the domicil of their owner, and are consequently ruled by the custom of that domicil even though they are in fact upon the territory of other provinces.

"5. The statutes or the customs which interpret or give effect to the will of the parties do not apply to a juridical act done on the territory of the province when the parties have expressly or tacitly incorporated into their act the statutes of another jurisdiction for the purpose of giving effect to their act.

"6. In all matters the form of acts is governed by the custom of the place where they are done." And again by Lainé.[3]

"The French doctrine presents three principal characteristics. "First, all laws are divided into two classes, that of statutes real and that of statutes personal, from a double point of view. This division cannot comprehend all laws, and the authors feel this insufficiency without avowing it. To, remedy it, they have recourse to three means: 1, they do not altogether submit to the distinction which they have themselves suggested; 2, they try to enlarge it by making use of the idea of statutes mixed, but without agreement and without success; 3, they rigorously accept it and in some way or other classify all laws, but at the expense of certain essential rules.

"Second, the reality of laws constitutes the general rule, the personality exists only as an exception.

[1] Merlin, Répertoire, s. v. Statuts.

[2] Vareilles-Sommières, i, 11. [3] Lainé, ii, 5.

"Third, the reality of laws is based on the feudal sovereignty of customs, the personality of laws on the idea of justice."

§38. The Beginning of Modern Law: Livermore. —

Early in the 19th century the history of the Conflict of Laws shifts again, this time to the United States of America. The same cause was operating. A recently formed confederation of states, each of which was legally independent, turned the attention of lawyers to the practical solution of the necessarily resulting conflicts. The earliest American author on the subject was Livermore (1786-1833). This author was a learned member of the bar of Louisiana, where he was brought into contact with the thought of French and other continental authors; and his book is a forceful but belated attempt to reinstate the statutory theory of the medieval commentators. His book in fact proves the objections which have been urged against this theory; for he states at length the doctrine of each author, all differing from one another, and Livermore himself differs from all. His book is a painstaking work, but the logic of events has disproved his thesis. His doctrines could not be applied in a country where both commercial and social intercourse between all parts of it are constant and continuous. His book was familiar to Story, but influenced the great commentator only indirectly, namely by calling to his notice the works of the medieval authors. By presenting his large collection of medieval works to the Harvard Law School, where Story used them, Livermore influenced indirectly but profoundly the thought of American lawyers on the subject of the Conflict of Laws. His collection contained 400 volumes, including the 16th, 17th and 18th century writers on the conflict of laws, and formed the basis of the large apparatus which Story's bibliography describes.

The basis of his doctrine is the later eighteenth century thought, as exemplified in the Declaration of Independence; and his work is an interesting study of statutist theories in the light of the new ideas.

"It having been at last conceded, that foreign laws must be in some instances respected, it has been fashionable, in this country and in England, to impute this to the comity of nations; a phrase which is grating to the ear, when it proceeds from a court of justice. Comity between nations is to be exercised by those who administer the supreme power. The duty of judges is to administer justice according to law, and to decide between parties litigant according to their rights. When an action is brought upon a foreign contract, it is not from comity that they receive evidence of the the laws of the country where such contract was made, but in order to ascertain in what manner and to what extent the parties have obligated themselves. Comity implies a right to reject; and the consequence of such rejection would probably be a judgment ordering a party to do that which he had never obligated himself to do. This phrase has not always been harmless in its effects, for I have not unfrequently seen it inspire judges with so great confidence in their own authority, that arrogating to themselves sovereign power, they have disregarded the foreign law, which ought to have governed their decision, because of some fancied inconvenience which might result to the citizens of their state.

"Even with sovereigns it is not so clear that the recognition of foreign laws is merely a matter of comity. They have the power to forbid the admission of the foreign law; but justice would then require that they should forbid the entertaining of any suit upon the foreign contract. The people of an independent nation may, if they please, surround their territory with an impassable wall, and totally exclude all intercourse with other nations. But if a desire to promote their own interest induces them to cultivate an intercourse with other people, they must necessarily adopt such principles as a sense of common utility and of justice will inspire. They cannot pretend to legislate upon the state and condition, the capacity or incapacity, of persons not subject to them. They may refuse to admit such persons to enter their territory; but if they do receive them, they are bound to receive them with that character which has been imprinted on them by the laws of the country to which they are subject."[1]

§ 39. Story. — The focal point in the history of the Conflict of Laws is the work of Joseph Story. In his Commentaries on the Conflict of Laws, published in 1834, he brought together the conclusions of the statutists, and placed beside them the principles developed in the English and American cases before his time. His work was issued at a psychological moment. The work of the statutist had ceased. The impulse which gave it life was spent. The

[1] Dissertations, 26-28.

belated attempt of Livermore to revive it had failed. Unless someone appeared with power to assimilate its sound conclusions, it seemed that it was labor lost. On the other hand, the common law, lighting on new experiences in a new world, lately rescued from the dangers of lay administration,[1] was working out characteristic conclusions in entire ignorance of the statutists and all their theories. Story combined the new impulse with the old learning, and became the creator of the modern science, and his book the point of departure of all the modern theories.[2] With some suggestions from the writings of the Dutch school, and with the help of a meager body of decided cases, he wrote the law anew, and in a way which has fixed the ideas of American and English lawyers at least, and on the Continent gave a new impulse to scholarship. "The work of Story was the signal for new works answering to the new needs which were just making themselves seriously felt. There was a sort of renascence of private international law. In the space of fifteen years, numerous publications were issued in different countries. Among the authors who belong to this first period I may cite: — at Naples, Rocco; in England, Burge; in France, Foelix, Massé, Mailher de Chassat, Demangeat; in Germany, Waechter, Schäeffner, Savigny."[3]

§ 40. The Influence of Story on European Thought. —

The earliest French writer after Story, Foelix, began his work as a series of magazine articles in the very year Story's book was published. He adopted the theory of comity from Story, and spoke of it as follows:[4]

"This result, to which our study and thought has led us, has been confirmed and developed in the learned work of Mr. Story, professor of law at Harvard University, Cambridge, and judge of the Supreme Court of the United States of North America. From him we have not hesitated definitively to adopt this doctrine, and we have followed it in the entire course of our work."

In Germany, Schäeffner's first reference in his notes is

[1] Pound, The Place of Judge Story in the Making of American Law: Cambridge, 1914.

[2] Laurent, i, 553; Rolin, i, 101. [3] Lainé, i, viii. [4] Foelix, i, 4.

to Story,[1] and the Commentaries are listed and described in his bibliography. Savigny in his Preface says:[2]

"In this branch of our treatise [i.e., the Conflict of Laws] the opinions of writers, as well as the judgments of tribunals, have hitherto been wildly confused and conflicting. A remarkable picture of this imperfect but hopeful state of things is presented in the excellent work of Story, which is also extremely useful, as a rich collection of materials, for every inquirer."

Rocco however appears to have been ignorant of Story's work at the time of publication of his first edition, and at the time of his second edition (in 1843) to have known it only through a review.

It thus appears that the doctrines of both the modern European schools were largely based on the work of Joseph Story. From him the law flowed on in three streams: the theory of the neo-statutists, the theory of the internationalists, and the common-law doctrine of territorial law recognizing vested rights. These theories will be considered in the next chapter.

§ 41. Summary of this History. — As a restatement of the course of history which has been outlined, one cannot do better than quote the masterly summary of Professor Ehrlich.[3]

"If there is any lesson to be drawn from this rapid resumé of the history of Private International Law, it is the fact that every age has had its Private International Law, responsive to the ideas then prevailing upon the nature of a state and the nature of its law. The ancient state, which had its origin in the group formed by members of a single race, and which was always reverting toward this primitive conception, knows only a law of the dominant race; and at most grants to subject people and races a certain little portion of juridical autonomy. Sensibly and insensibly Rome changed into a territorial state, merging in the conquering race the different peoples and races which inhabited its territory; and thus the law of the dominant race acquired in fact, throughout the extent of the state, the force of a territorial law. In their turn the Germanic states of the middle age appear in history as states based on com-

[1] Schäeffner, 3.

[2] Savigny, 44.

[3] Rev. dr. int. pr., iv (1908), 902, 915.

munity of race. They knew no other law than the law of each different race; but they had at once under their eyes the powerful example of the ancient territorial state which provided one law for everyone within its territory, and starting from that example they created jurisdictions in which justice was granted to every inhabitant of the state according to the law of his race. It is the age of personality in law. When the laws of the different races are replaced by local statutes, customs, or particular law, the theory of statutes which seeks to discover rules to resolve conflicts arising from the diversity of local rights makes its appearance. Circumstances of just the same kind have led to the formation of the modern Private International Law. The development of international commerce and the idea of the comitas gentium led to a treatment of the foreigner as one entitled to rights, and led to treating him more and more as entitled to private rights which are the same as those of the inhabitants of the country. At the same time there arose the idea of the juridical monopoly of the state, the effort to refer every law to the state whose sovereignty extends over the territory where the law is applied. According to these ideas, when a state declares that a foreign law should be applied to a juridical relation, it does so because this juridical relation was subject to the law of the foreign state. Now, evidently this idea is an idea of the right of nations. It immediately oversteps the limits which the law of nations assigns to the local sovereign of a state. Like every radical innovation, this idea makes its way little by little, always timidly supporting itself on ideas already recognized. It is the theory of statutes which is gradually transformed into these new conceptions. Then come the theories of Savigny, of Wächter, and the Internationalists, who are already moving altogether within this circle of ideas. Today even the determined Nationalists, like Kahn, admit that private international law finds in the law of nations some of its fundamental rules, against which no state can set itself. They admit that in time we shall achieve a codification of private international law, no doubt still incomplete, but the same for all states, and fixed by convention between the states. The Internationalists naturally go still further along this road. Such an evolution should radically lead to an attempt at an integration of private international law on the basis of the law of nations. This is what Zitelmann is undertaking today, and it dominates his work on Private International Law. He carries to their radical conclusion the ideas which the evolution accomplished in our own time has created, and he professes to open the way for a new evolution."

§ 42. Efforts to Unify the Law: International Conferences.

— The fact that there are different theories of law held in different states, and therefore differences in the rules of law themselves, much interferes with the benefits which would follow identity in rules of law. For instance, difference in the rules regulating the law which shall apply to marriage would cause the very evil such rules were intended to avoid, and might result in parties being married in one state and single in another.[1] It is therefore not surprising that efforts have been made to avoid such differences; and, since without a higher power than that of mere opinion differences of opinion must obviously continue to exist, these efforts have taken the direction of international meetings in which the power of a majority may be applied to individual dissent.[2]

The first effort of this sort appears to have been made in 1889, when a conference was held at Montevideo between representatives of the independent states of South America. The result of this conference was a series of draft treaties, intended to be signed by the respective parties.[3] It does not appear, however, that these treaties were actually signed by the parties to them.[4]

[1] See, e.g., Ogden v. Ogden (1908), P. 46.

[2] On the general subject of the codification of private international law see the following:

De Vries, J.: Codification of private international law. Soc. Sci. Asso., 1875, 180.

Asser, T. M. C.: La codification du droit international privé. Haarlem, 1901.

Olivi, Louis: De la codification du droit international privé. Rev. dr. int. xxvi (1894), 511-529.

Anzilotti, Dionisio: La codificazione del diritto internazionale privato. Florence, 1894.

Paroldo, A.: Saggio di codificazioni del Diritto internazionale. Turin, 1851.

Vicoforte: Di una codificazione convenzionale parziale di diritto internazionale privato. Turin, 1883.

Silvela, M.: Codificacion del derecho internacional privado. Revista general de legislacion, lv (1879), 382-395.

[3] Pillet, 112.

[4] For books and articles on the Congress of Montevideo see the following: Actas de las sesiones del Congreso sud-americano de Derecho internacional privado. Buenos Aires, 1889. 2 edition, 1894.

Congreso juridico sud-americano. Derecho comercial internacional. Montevideo, 1889.

Several conferences have been held at the Hague, in the years 1893, 1894, 1900 and 1904. All the European nations except Turkey and England were represented and protocols were adopted on several points in dispute.[1]

Tratados sancionados por el Congreso sud-americano de derecho internacional privado installado en Montevideo. Buenos Aires, 1889; pp. 72.

Pradier-Fodéré: Le Congrès de droit international Sud-Américain et les traités de Montevideo. (Rev. dr. intern., xxi (1889), p. 217).

Contuzzi: Il trattato de Montevideo del 1889 e la codificazione del diritto internazionale privato presso gli stati dell' America meridionale. 11 Filangieri (1889), 521.

Ramirez, G.: El Derecho commercial internacional en el Congreso jurídico sud-americano. Montevideo, 1889.

Segovio, Lisandro: El derecho internacional privado y el Congreso sud-americano de Montevideo. Buenos Aires, 1889.

[1] Despagnet, 39; Pillet, 112. For general discussions of the subject, see the following authorities:

Bentwich, N.: The Anglo-Saxon Powers and the Hague Conventions on private international law. Zeitschrift f. Volkerrecht u. Bundesstaatsrecht, vi (1912), 338.

Kuhn, A. K.: Should Great Britain and the United States be represented at the Hague Conferences on private international law? Report presented to the 28th session of the International Law Association, Madrid, 1-6 October, 1913. Compte rendu, London, 1914, 556; Amer. Jour. Int. Law, vii (1913), 774-780.

Schuster, Ernest: The Hague convention on matters of private international law. Journal of the Society of comparative legislation, iii (1898), 428.

Asser, T. M. C. La codification du droit international privé. Le traité du 14 novembre 1896. (Rev. dr. intern., xxviii (1896), 573.)

Asser, T. M. C.: Projets de convention de La Haye pour le droit international privé. (Rev. dr. internat., xxxiii (1901), p. 437.)

Buzzati, J. C.: Les projets de convention de La Haye pour le droit international privé. (Rev. dr. intern., xxxiii (1901), 269.)

Contuzzi, Francesco Paolo: Commentaire théorique et pratique des conventions de La Haye concernant la codification du droit international privé. Paris, 1905.

Jitta, J.: Accession de la Grande-Bretagne, des États du nord, du centre et du sud de l'Amérique et en general des États non-européens aux traités de La Haye sur le droit international privé. Report presented to the 28th session of the International Law Association, Madrid, 1-6 October, 1913. (Compte rendu, London, 1914.)

Lainé, A.: La Conférence de La Haye relative au droit international privé. (Clunet, xxxii (1905), 797; xxxiii (1906), 5, 278, 618, 976; xxxiv (1907), 897.)

Legrand: La Conférence de droit international privé de La Haye. (Rec. de l'Acad. des sciences morales et politiques, Feb., 1894.)

Renault: Le droit international privé et la Conférence de La Haye. (Ann. de l'école libre des sciences politiques, 1894, p. 310.)

Renault: Les Conventions de La Haye (1896 et 1902) sur le droit international privé. Paris, 1903.

In spite of the great desirability of a unification of law, there are enormous difficulties in the way of securing unity. Among neighboring nations governed by the same general system of law, like the states of South America and the

Ville-Urrutia: La Conférence de droit international privé de La Haye. (Rev. d'hist. dipl. 1894, n. 2.)

Zeballos, E. S.: La codification du droit international privé aux Conférences de La Haye (1903-1904). (Bull, argentin de droit international privé. Buenos Aires, 1906, p. 1.)

La cour permanent d'arbitrage de La Haye et le droit international privé et penal. (R. de dr. int. pr., vi (1910), 705.)

Beichmann: De Internationale Konferencer i Haag til Behandling af Spørgsmaal vedrørende den Internationale Privatret. (Tidskrift for Retsvidenskab, viii (1895), pt. 1.)

Ancili: Das internationale Privatrecht u. seine organische Fortentwicklung durch die Haager Kongresse. (Archiv. für Wirtschaftsphilosophie, 1909, n. 1.)

Beer: Die Kundigung der Haager Familienrechts-Konvention durch Frankreich. (Deutsche Juristen Zeitung, xix (1914), 713.)

Cahn, W.: Der internationale Kongress für internationales Privatrecht im Haag. (Zeitschr. für internation. Privat- und Strafr., iv (1894), 1.)

Dove: Die vertragsm. Fortbildg. d. intern. Priv. R. durch d. Haager Konv. Berlin, 1909.

Kahn, Frantz. Die Haager Staatenkonferenzen. (Zeitschrift für internationales Privat- und Oeffentlichesrecht, xii (1902), 1, 201, xiii (1903), 229, 385.)

Kaufmann: Die neuen Haager Abkommen über das internationale Privatrecht. (Deutsche Juristen-Zeitung, xiii (1908), 1077-1081.)

Meili, F.: Das internationale Privatrecht und die Staatenkonferenzen im Haag. Zurich 1896. 2d ed. Zurich, 1900.

Niemeyer, Theodor: Die Haager Konferenzen über internationales Privatrecht. (Zeitschr. für das Gesammte Handelsr., xlv (N.S. xx), 157.)

Neumeyer, Karl: Das Haager Abkommen über internationales Privatrecht. (Zeitschr. für internat. Privat- und Strafr. ix (1899), 453.)

Schwartz, J.: Ungarns Anschluss an die Haager Familienrechts Konventionen. (Zeitschrift f. intern. Recht., xxii (1912), 418.)

Contuzzi, Francesco Paolo: Le Conferenze di diritto internazionale privato all' Aja. Naples, 1904; pp. 320.

Corsi, Alessandro: La Convenzione di La Aja por la procedura civile. (Riv. di dir. internaz. e di legislaz. compar., March, 1901, p. 128.)

Pierantoni, Augusto: Il diritto internazionale privato e la conferenza diplomatica all' Aja. 1895.

Pierantoni, Augusto: Il diritto civile e la procedure internazionale codificati nella convenzione dell' Aja. Napoli. 1906.

Bustamante, Ant. S.: La Conferencia de El Haya. (Revista del Foro, Havana, March, 1894.)

Cambothecra, X. S.: International Conference at the Hague (in Greek) (Kosmodike, December, 1898).

Mandelstam: The Hague Conferences on private international law (in Russian). 2 vol. Petrograd.

Martens: La Conférence de La Haye sur la codification du droit international privé (Journal du ministère de l'instruction publique. Petrograd, September, 1900.)

European states, excluding England and Turkey, the difficulties should be little felt, since the differences are only, so to speak, those of individual theory; yet even there no important result has followed the conferences heretofore held. Much blame has been heaped upon England and America for not joining the Hague conferences; yet the countries governed by the common law, whose variations from accepted European doctrine are based not on individual opinion but upon basic differences in legal systems, are certainly not to blame for the failure of the states of Europe, whose law is based upon the single law of Rome, to reach an agreement among themselves as to the rules regulating the Conflict of Laws. There are in fact almost insuperable obstacles in the way of eventual unity between England and America on the one hand and France and Germany on the other. Take, for instance, the rule governing personal status, which is one of the most fundamental rules of the entire subject. All Europe is agreed upon the law of nationality as the basis of personal rights, and demands the acceptance of this rule by the Common Law states. In the latter, however, there are two rooted objections to the acceptance of this new doctrine. In the first place, Great Britain and the United States, the two nations concerned, have no national law whatever. In Great Britain each different part of the Union, England, Scotland and Ireland, and every separate colony has its own individual law, and the same is true of the different states of the American Union. It is therefore impossible to apply national law to personal rights, since no such law exists. On the other hand, in both the nations concerned immigration is freely permitted, and in the United States millions of immigrants from all portions of the old world have settled and formed a home. The democratic constitutions of these nations, however, make it politically desirable to delay the technical naturalization of these new inhabitants for several years, until they have to some extent assimilated the political ideals on which their constitutions depend. To abandon these subjects to the law of their native countries would be most unjust, to make them citizens of their new countries would be impossible. England and America are therefore constrained by circumstances to retain the law of domicil as the law governing personal status, a law which up to the middle of the last century prevailed in every civilized country.

A full discussion of the work of the four conferences and of the international conventions which have resulted therefrom may be found in a note by M. Edouard Oudin in Clunet.[1] A summary follows.

First Conference, 12-27 September, 1893.

The final protocol referred to four matters: marriage; judicial and extra-judicial acts; commissions rogatory; successions, with a preamble, safeguarding public order. No conventions resulted from this conference.[2]

Second Conference, 25 June-13 July, 1894.

The final protocol referred to six matters: marriage; divorce and separation of body; wardship of minors; civil procedure; bankruptcy; successions, wills, and gifts causa mortis.[3]

A convention on civil procedure, as a result of this conference, was formed in 1896,[4] but was superseded by the later convention of 1905. These conventions dealt with several matters: the proof and execution of foreign judgments and other formal acts; commissions rogatory; the cautio judicatum solvi; gratuitous assistance to foreign litigants; and arrest.[5]

[1] Clunet xli (1914), 876-882.

[2] The text of the resolutions may be found in Clunet xx (1893), 1276. Sec upon this conference the following authorities:

Actes de la conférence de La Haye, chargée de réglementer diverses matières de droit international privé. La Haye, 1893.

Conference de droit international privé tenue à La Haye, 12-27 September, 1893, Documents. (Archives diplomatiques, 1894, 2, part 2, p. 57.)

The Codification of Private International Law [The Conference of 1893, with its Protocol]. Law Jour. xxx (1893), 226, 520.

Asser, T. M. C.: Communication sur la Conférence internationale de La Haye de 1893 pour la codification du droit international privé. (Annuaire de l'Institut de droit international, xiii, p. 369.)

Lainé, A.: La Conférence de La Haye relative au droit international privé. (Clunet, xxi (1894), 5, 236.)

Meili, F.: Der erste europäische Staatenkongress über internationales Privatrecht. (Allgemeine oesterreichische Gerichtszeitung, xlv, 1894.)

[3] The text of the resolutions are in Clunet xxii (1895), 197.

[4] The text of this convention may be found in Clunet xxvi (1899), 626; Bulletin des Conférences de la Haye, The Hague, 1907, p. 9.

[5] Upon the second conference see the following authorities: Actes de la deuxième conférence de La Haye, chargée de réglementer diverses matières de droit international privé. La Haye, 1894.

Asser, T. M. C.: La codification du droit international privé (2d Conference de La Haye, du 25 juin au 13 juillet, 1894). (Rev. dr. intern., xxvi (1894), 349.)

Third Conference, 20 May-18 June, 1900. Four projects were adopted at this conference: for conventions upon marriage, upon divorce and separation of body, and for the wardship of minors; and for the further discussion of the subject of successions.[1] As a result of this conference, three conventions were issued, June 12, 1902, on the subjects of marriage, divorce, and guardianship.[2] These conventions have been successively ratified by the Netherlands, Sweden, Luxembourg, Roumania, Germany, Belgium, Switzerland, Italy, Portugal, and Hungary. Austria, though a party to the conference, never ratified the conventions; and France, having once ratified them, withdrew her ratification and denounced the conventions.

De Herrera: La seconde Conférence de La Haye sur le droit international privé. (Revista contempor., 30 May, 1895.)

Lainé, A.: La Conférence de La Haye relative au droit international privé (2d session). (Clunet, xxvii (1895), 465, 734.)

Cahn, W.: Zweiter internationaler Kongress für internationales Privatrecht im Haag. (Zeitschr. für internat. Privat- und Strafr., v (1895), 1.)

Breukelman: De tweede conferentie voor het Internationaal Privaatrecht. (Themis, fasc. 55, n. 4.)

Upon the Convention of 1896 see the following:

Asser, T. M. C.: La Convention de La Haye du 14 novembre, 1896.

Paris, 1901.

Heidecker: Das Haager internationale Uebereinkommen von 1896, betreffend das Civilprozessverfahren. (Zeitschr. für deutsch. civilprozess, xxiii, 164.)

[1] Upon this conference see the following authorities:

Documents relatifs à la troisième Conférence de La Haye pour le droit international privé. 2 vol. The Hague, 1900.

Lainé, A.: La Conférence diplomatique de La Haye relative au droit international privé (3[e] session, 29 mai-19 juin, 1900). (Clunet, xxxiii (1901), 5, 231.)

Olivi, L.: Le projet néerlandais de programme pour la troisième Conférence de droit international privé. (Rev. dr. intern., xxxii (1900), 136.)

Buzatti, G. C.: Intorno al "projet de programme" della terza conferenza di diritto internazionale privato. Turin, 1899, pp. 40.

[2] For the texts, see Clunet, xxxi (1904), 476; Bulletin des conférences de la Haye, The Hague, 1907, 21-35. On the conventions see:

Buzatti, G. C.: Trattato di diritto internazionale privato secondo le Convenzioni dell' Aja. I.: Introduzione, Il matrimonio secondo la Convenzione dell' Aja de 21 giugno 1902. Milan, 1907.

Buzatti, G. C.: Le droit international privé d'après les Conventions de La Haye (Trad. de. Rey). I. Le Mariage d'après la Convention du 12 juin 1902.

Paris, 1911.

Todaro, Della Galia: La Convenzione dell' Aja del 12 giougn 1902. (Rivista di legislazione comparata, 1903, p. 40.)

Oliver, Bienvenido: Los Convenios de El Haya sobre matrimonio, divorca, tutela, succesiones, quiebras y concursos considerados desde el punto de vista de la legislacion española. (Revista de derecho internacional y política externa, i (1905), 107.)

Fourth Conference, 16 May-7 June, 1904.

Five matters were dealt with in the final protocol: civil procedure; the effects of marriage upon property; interdiction; successions and wills; bankruptcy.[1] Three conventions resulted, on civil procedure, the effects of marriage, and interdiction.[2] The first has been ratified by Germany, Austria-Hungary, Belgium, Denmark, Spain, France, Italy, Luxembourg, Norway, Netherlands, Portugal, Roumania, Russia, Sweden and Switzerland. The second was ratified by Germany, Belgium, France, Italy, Netherlands, Portugal, Roumania and Sweden; the third by the same nations, omitting Belgium, and adding Austria-Hungary.

§ 43. Efforts to Unify the Law: Comparative Study. — Before international agreements to unify the law by treaty-codification can be successful, fuller knowledge of current opinions and of the various doctrines actually applied by the courts of the various civilized countries must be acquired. A most important step toward the acquiescence of such knowledge was taken in the founding of Clunet's Journal of Private International Law in 1874. In the pages of this publication one may read theoretical articles on the conflict of laws, as well as practical treatises on the doctrines of each state; and there are contained also selected decisions of courts of all nations upon controverted questions of the conflict of laws. Too great stress cannot be laid upon the contribution of this Journal, not only in furnishing information as to the position of each nation with regard to the science of the subject, but also in hastening the final achievement of unity. In recent years other influential journals have been established, which have in general followed in the same lines and wielded the same influence.[3] Mention should

[1] The following authorities may be consulted:

Baldwin, S. E.: The Hague Conference of 1904 for the advancement of private international law. (Reprinted from Yale Law Journal.) New Haven, 1904.

Missir, P.: La quatrième conférence de droit international privé de La Haye (successions et testaments). (R. de dr. int. pr., ii (1906), 644-658.)

Breukelman: De vierde conferentie voor het international privaatr. (Themis, lxvii, 1.)

[2] For the text of these Conventions see Bulletin des conférences de la Haye. The Hague, 1907, pp. 13-17, 27-29, 36-38. See also Cluzel (G.). La nouvelle Convention de la Haye sur la procedure civile. Paris, 1910.

[3] Other periodicals dealing with the Conflict of Laws which also collect decisions are Zeitschrift für internationales Privat- und Strafrecht, since 1890; Revue de Droit International Privé, since 1905.

also be made of the excellent statement by Professor Weiss of the doctrines prevailing in modern nations.

Another important step toward mutual understanding is the foundation of chairs of Private International Law or of courses in the Conflict of Laws at the Universities. Fifty years ago there was little serious attention given to the study of the subject. A special course in Private International Law in the French universities was created in 1880.[2] Today it is a regular subject of instruction in the faculties of law of both hemispheres.

[1] Weiss, iii, 185 et seq.

[2] Lainé, i, xvi.


§ 51. The three modern systems of thought.

52. The statutory system.

53. The statute real and the statute personal.

54. Modern statement of the statutory theory.

55. Domicil or nationality as the basis of personal rights.

56. Considerations in favor of the doctrine of nationality.

57. Objections to the doctrine.

58. The doctrine of the renvoi.

59. The exception of public order.

60. The principle of autonomy of the will.

61. Pillet's theory of the continuity and the generality of law.

62. Pillet's later theories.

63. The international system.

64. The early German school: Wächter, Schäffner, Savigny.

65. The doctrine of von Bar.

66. The doctrine of Zitelmann.

67. The world-law of Jitta.

68. Criticism of the international theories.

69. International legal systems.

70. The territorial system.

71. The theory of comity.

72. The doctrine of Story.

73. The doctrine of vested rights.

74. Dicey.

75. The doctrine of vested rights in France: Vareilles-Sommières,

76. Bustamante.

77. Criticisms of the territorial theories.

78. Answer to the criticisms.

§ 51. The Three Modern Systems of Thought. — The history of doctrine has been traced to the time of Story; who, gathering together the conclusions of the Dutch school and the decisions of common-law courts, stated the modern problems. His own solution has formed the basis of common-law doctrine on the subject. But other systems of reasoning have grown up or persisted, more or less influenced by Story's work, but more or less divergent in results. Every system necessarily contains within itself a large degree of unassailable truth; each system also necessarily accepts a large body of doctrine which is common to all. Every scholar, accepting this common doctrine, works out, as his contribution to the study of the subject, under the influence of that system of reasoning which is most congenial to his mind or which happens to be most familiar to him, some peculiar aspect of the truth. It follows, therefore, that while all writers on the Conflict of Laws may be roughly grouped into a few classes — into three, according to the classification here adopted — these classes necessarily grade into one another, and a scholar may pursue an eclectic course, following the typical views now of one class, now of another.

This being premised, we may examine the three principal systems of thought now current. The first of these systems supposes two independent laws, effective at the same time and place, and subject to a possible choice between them. The second supposes a single set of principles, binding on all nations, by which the need of any choice between two independent laws is prevented. The third asserts that no law can exist as such except the law of the land; but that it is a principle of every civilized law that vested rights shall be protected, and therefore that in each country it is sought to find what rights have arisen anywhere, and to recognize them, applying in all else the law of the land to every question. These systems may for convenience be called respectively statutory, international and territorial.

It will be clear that the first of these systems of thought is a modern expression of the older doctrine of the statutists. The others are new doctrines, derived from modern ideas about rights and the jurisdiction of states. No one has better explained the origin and growth of these new doctrines and their effect upon our subject than Professor Eugen Ehrlich.

"Our modern conception, according to which law is before all an expression of the will of the state, and the judge is an officer of state who is to administer this state law by virtue of the command and in the name of the state, can be found already in embryo with the Romans of the later empire and with the English of the middle ages; but it is only at the end of the middle ages that this conception was developed on the European Continent. This change of conception must evidently react on private international law; for it is now the state alone which should decide what law can be applied within its boundaries. The judge has no longer to ask what law is applicable to each separate case as it arises. An officer of state, he must apply the law which the state orders him to apply. In future, when one speaks of national law, one understands more and more not the law of a people, that is, of a community of men united in race, language, history or degree of civilization, but the law of a state, that is, of a sovereign organization with a fixed territory, containing perhaps several different races or perhaps only a part or a small fraction of a race. In future this state expresses the intention of binding by its law every person and thing found upon its territory; an intention which it is unable to carry out, though it uses every means open to its law.

"On the other hand, Hugo Grotius and his disciples, with their theory of the law of nature and of nations, have not labored in vain. Everywhere at the end of the seventeenth and in the eighteenth centuries the truth is being recognized that states in fixing their law have in certain particulars duties toward mankind. We are saying, in certain connections, mankind; a notion which evidently includes foreigners. Thus is born — first in the minds of jurists of the Netherlands — the idea of a comitas gentium. The relations between states result for each state in the obligation of giving to a certain extent an opportunity for the application of the law of other states.

"Two influences from that time are opposed to each other in the matter of private international law. One of these is the principle of the complete power of the state over its own territory; . . . the other attaches an especial importance to the comitas gentium. No state can apply its own law in a way contrary to the obligation which its international situation imposes upon it and which the law of nations creates for it."[1]

Other classifications of doctrine might equally well be made. In an acute article in a German periodical[2] Dr. Cybichowski divides the opinions which obtain today into four groups.

First group. The theory of this group, he says, is that private international law is an authoritative provision of the national law. "This might be designated as the provision-principle, as another theory is called the collision-principle." Since this theory obviously involves each state having its own provisions, it also includes a fixing of the jurisdiction of each state to apply its own provisions to a juridical relation. Thus Bar is quoted as speaking of the rules

[1] Rev. dr. int. pr., iv (1908), 911, 912.

[2] Zeitschr. für Int. Pr. u. Strafr., xx (1910), 367-398.

of legislative jurisdiction; and Pillet's phrase is cited: "Every question of conflict of laws is a question of conflict of sovereignties." This branch of law, although it concerns private rights, is not in itself private law, and is to be regarded as a branch of public law.

Second group. The doctrine held by the second group is that each state is subject to the duty of using a general determined principle for settling the questions; what might be called the theory of obligatory national law. Each state, according to this doctrine, is bound to have a private international law.[1]

Third group. The theory of authors of this group assumes an international doctrine, outside and above the national law, which of its own force governs all juridical relations having any element foreign to the local law. Each citizen is bound, not only by the local law, but by an extra-national law.

Fourth group. Free law. The judge, not being helped by the other theories, uses his judgment. This is not an uncontrolled judgment, however. Thus von Wächter says that the judge must make use of his "Recht" if sense, spirit and tendency of his statute do not lead to the consideration of the foreign "Recht."[2] Bar says: "Private international law does not require, as a condition precedent to its existence, that it should have been constituted, so far as its leading principles or doctrines are concerned, by treaties or by legislation. It exists because it is a necessity, and it is the force of circumstances, the nature of things that makes it so."[3] And compare Jitta's striking phrase,[4] "Positive law (loi) is not the source but the product of legal principles (droit)."

The doctrine of Cybichowski's second group is, it would seem, a necessary part of that of the first group. Granting that all juridical relations brought before a court are to be determined by the law of that court, that law must apply some rule to them, a rule by which it feels itself bound; and this rule must be based upon the felt requirements of justice. Scholars of the first group, therefore, would, if they dealt with the subject, adhere to the views of the second group. These two groups, then, include all authors who accept the territorial system of thought. The third and fourth groups are internationalist, distinguished only as the fourth accepts an international common law. Again it seems that authors of the third group would accept the doctrines of the fourth. The theories of the statutists are not considered, although it is probably to them that the author meant to apply his term "collision-principle."

[1] Citing Kahn in Jhering's Jahrb. lx, 40.

[2] Archiv für civ. pr. xxiv, 311.

[3] 2d ed. (Gillespie's tr.), x.

[4] Méthode, 42.

§ 52. The Statutory System. — The statutory system of thought has of course had the widest vogue. It started in Italy in the early middle ages, and extended to France and the Netherlands; it influenced Story's cosmopolitan work; it had a rebirth in Italy in the middle of the 19th century, and again spread through France and Germany.

The particular theories to which it has given birth are as various as its extent is wide. From the almost unrestrained personality of law which the Italians urge to the almost unrestrained territoriality of Huber and Story the space is filled by all shades of variation. Given a doctrine that one must find a rule which will give the precedence now to one law, now to another, the variations of choice are infinite.

The possibility of two simultaneously applicable laws is always based, in the last analysis, on the hypothesis of a law obligatory on a person. No one has expressed this underlying spirit better than Vareilles-Sommières.[1]

"To govern things is merely to govern the conduct of persons with relation to things. The law really governs persons alone, the only things capable of receiving and executing a command. To ask what persons and what things the law governs is therefore to ask what persons it governs, and with reference to what things it governs persons. And since to govern persons with relation to a thing is to govern their conduct in one particular, the two questions may be advantageously consolidated into one: of what persons does a law govern the conduct?"

According to this conception, it is possible that one law will govern a person, while another law governs the territory whereon he stands or the other person with whom he has juridical relations. In such a case, two laws would be active in the same place and at the same time; and some method must be discovered of selecting one of them to prevail. The law that should do this thing might well be called "a science of sacrifices," [2] "a law in the brambles."[3]

§ 53. The Statute Real and the Statute Personal. — The original meaning of "statute" in the phrases "statute real" and "statute personal" was, as has been seen, a local

[1] V.-S., i, 1. [2] Weiss, iii, 5, quoting Pillet.

[3] Thaller, Des faillités en droit comparé, ii, 273; cited in Vareilles-Sommières, i, v.

statutory provision which derogated from the general imperial law. It was, therefore, by no means to be expected that these categories should between them exhaust the whole law. The main body of law was still imperial; but of the statutes which modified it in certain particulars some applied to persons and some to property.[1] This fact will explain the original doctrine. When the phrases came to be applied to a different condition of affairs, where they were to cover the entire body of law, the meaning was changed, without however abandoning the doctrines which had become current about them. The statute personal now became the personal law in general, the law made by a sovereign for the government of his people; the statute real became the territorial law. The two phrases between them now covered the whole body of law. A few writers, still influenced by the old meaning of statute real, called for a third category of statute mixed, which, however, meant the law of the land applied to acts, not to things; statutes real and statutes mixed covering between them the entire territorial law.

There was obviously ample ground for difference of opinion as to where the personal and where the territorial law applied; and the differences between the numerous writers was in their rules for determining this question. No agreement was ever reached on the point; as Jitta says, the theory of statutes never succeeded in clearing itself of ambiguities.[2] Nor could this be otherwise in the nature of things. For every law has both a territorial and a personal application; and where a conflict arises, it is because one sovereign wishes to apply his own law to a juridical relation arising on his territory, while another wishes to throw around his own subject, who is one of the parties to the relation, the protection of his personal law. Which of the two independent sovereigns should yield is a question not susceptible of a solution upon which all parties would agree. This is the weakest point in the statutory theory.

A glance at the summary of the various theories in Livermore's Dissertations will make this point clear.[3]

§ 54. Modern Statement of the Statutory Theory. — No one has succeeded in stating the statutory theory more

[1] Vareilles-Sommières, i, vii.

[2] Jitta, 26.

[3] Ante, § 38.

clearly and forcibly than Professor Weiss. Weiss represents the modern French neo-statutists, a school which has not been greatly influenced by the extreme nationalist doctrines of the Italian and Belgian schools. Weiss's statement of the statutory theory is as follows: [l]

"Law is not in itself either always and only territorial or always and only personal. There are, no doubt, territorial laws, but there are also personal laws. Let us go further: the same law may be and should be at once territorial and personal, according to certain rules.

"What is the true function of law? It is to provide for the interests of those for whom it is made, that is, for the interests of citizens of the state which has given it force. But it ought also to take care that the social organization, which is the best safeguard of individual interests, should not be compromised. It can protect the citizen, its true function, only if it protects at the same time the society of which he is a part, and the state which represents this society. Like sovereignty, of which it is the formulated expression, law exercises necessarily a double empire. On one side it is its duty to issue commands to persons subject to it, in whatever place they may be; so that the tie which unites them to itself shall not be broken. On the other side, it may in the name of the interest of the preservation of local society command foreigners from every nation who by passing the frontier enter within the material sphere of its application. It is within its function to say to them, intrasti urbem; ambula circa ritum ejus. ... Of these two laws, the personal and the local law, which claim to reach a person and whose provisions are perhaps quite different, which shall prevail? It is not easy to say. And the difficulty which arises from the collision of the territorial with the personal law is even increased, if we suppose that the same legal relation involves several individuals with different personal laws; or if the same individual is bound to a number of states by different personal ties, as by belonging to one by nationality, to another by domicil. Admitting in this case the principle that the personal law should have the preference, to which personal law should this preference be given? ... It is to this situation and to similar situations that one gives the name of Conflict of Laws. There is a conflict when two or more laws are in competition relatively to a single person, to a single thing, to a single act, and a doubt arises as to which law ought to be applied to the exclusion of the others."

[1] Weiss, iii, 3, 4.

§ 55. Domicil or Nationality as the Basis of Personal Rights. — Before examining this theory of personal law in action, it will be well first to examine a question which has recently been brought to the front: shall one's personal law be taken to be the law of his domicil or the law of his nation? Until a hundred years ago, this question not had been raised at all. Most practical questions had arisen out of a difference of laws within the same nation: the Italian cities within the empire, the French or Dutch provinces, the German or American or Italian states. The laws concerned being internal, the difference between the persons was one of domicil, not of nation. When England was first brought to deal freely with foreigners, and therefore needed a system to avoid conflict, she accepted from Europe the doctrine that domicil governs personal rights; and this doctrine is still held as part of the common law in England and America. On the continent of Europe, however, a profound change of thought was wrought by the French revolution. The Code Napoléon, following the current of the new thought, swept away provincial lines and laws, and provided one law for France. This legislation, and the new feeling for nationality which caused it, had a profound effect. The first expression of this new feeling by a writer on the Conflict of Laws was by an Italian, Mancini,[1] whose notable address,[2] delivered in 1851, was a characteristic expression of the Italian's aspiration for national unity. It expressed to the full the feeling of nationality which gave rise to the French Codes, a half century earlier, and which finally culminated in the formation of the Italian Kingdom. This great address did not contain any detailed application of its principles to the conflict of laws, but in a paper read before the Institute of International Law, in 1874, Mancini more fully applied his doctrine to the conflict of laws.[3]

A few paragraphs may be quoted from this paper. ..." Climate, temperature, geographical situation, whether mountainous or

[1] See Catellani, ii, 129; Laurent, i, 630; Meili, i, 120; Weiss, iii, 62.

[2] Della nazionalita come fondamento del diritto delle genti, in his Prelezioni,

Naples, 1873.

[3] Clunet, i (1874), 221-239, 285-304; the extract here given is found on p. 293.

maritime, the nature and fertility of the soil, difference of needs and of customs, determine with every people, almost without exception, their legal system. They determine in a greater or less degree the precocity of physical and moral development, the organization of family relations, the prevailing occupations, and the nature of business and commercial relations which usually occur. For these reasons the status and capacity of persons in the private law of the different nations must differ in accordance with this difference in conditions. . . . Just as in the relations of private law within a state, the principle of liberty which protects the legitimate and inviolable autonomy of the individual lays down the limits of the political and legislative power, so in the same way the principle of nationality lays down a similar limit between foreigners and natives. The reason is found in individual and reciprocal autonomy, a legitimate and inviolable autonomy; and just as the law of nationality which belongs to the entire people does not substantially differ from the law of liberty which belongs to the individuals, so it follows that the individual may demand from nations and states, in the name of the principle of foreign nationality, the same respect for his inheritance of private law that he demands from his own state. Such a guarantee is therefore an act of strict justice, and an inviolable duty. This duty results from a higher principle than the mutual courtesy or good feeling of states, or the utility or interest of a nation, although this utility and interest require the rigorous observance of the duty."

Mancini's doctrine became the basis of the Italian school of writers on the conflict of laws.[1] The fundamental principle of this school is that law is applicable primarily to persons, the law of a nation to all the citizens of that nation, wherever they may go; and that any limitation on this general doctrine comes by way of exception, the principal exception comprising "laws of public order," i.e., laws which the sovereign of the territory imposes upon his territory as important for the conduct of government. It is formulated by Weiss as follows:[2]

"When a law deals with a private interest, it always has the object of utility to the person; it can govern only those for whom it has been made; but as to them, it ought on principle to govern them in all places, and in all their juridical

[1] See Catellani, ii, 118, 170; Bar, 63; Meili, i, 121; Rolin, i, 109; Weiss, iii, 61; Vareilles-Sommières, i, 98.

[2] Weiss, iii, 63.

relations, saving the limitations and exceptions which result from the international public order, the rule locus regit actum, and the autonomy of the will."

The principles of this school have had a great effect throughout Europe. In Italy, Mancini has been followed by Esperson, Fiore, Fusinato, and a number of less generally known authors; in Belgium, Laurent has accepted them with blind enthusiasm; in France, Durand, Surville and Arthuys, Audinet and Weiss have accepted nationality in place of domicil as the basis of personal rights, and the same principle is the basis of Pillet's original theory. Even in Germany the influence of the Italian school has been considerable.[1] In Spain, the Italian school is criticised, yet the conclusions of the important Spanish authors, like Torres-Campos and Bustamante,[2] are profoundly colored by its doctrines.

§ 56. Considerations in Favor of the Doctrine of Nationality. — The new doctrine has much to commend it. It is simple, it is natural, and so far as nationality and race are identical, it protects racial peculiarities. It is a doctrine which, recognizing the legal equality of all nations, offers the strongest possible inducement to international agreement as to the principles of private international law. "The principle of personality is the only one which can result in a realization of what Demangeat calls the dream of a single law uniting all men."[3] And the doctrine seems without question to be the logical conclusion of the statutory theory. It is thus that Laurent sees it:[4]

"If, then, laws of status are personal, it is because they are the product of those thousand and one physical, intellectual, and moral circumstances which make up nationality. They are personal because they are national. They should consequently follow the person everywhere, because he carries his nationality with him. Of national laws, one may say all that the ancient jurists said of statutes personal. They do more than stick to our bones, they circulate in our veins with our blood, for we receive our nationality with the blood which our parents transmit to us ... The realists think that sovereign power should embrace all persons and things which are within the territory or which make up the country.

[1] Meili, i, 121.

[2] Catellani, ii, 436.

[3] Laurent, i, 39.

[4] Laurent, ii, 632-636.

That is the feudal system which confounds sovereignty with property. The Italian publicists say, as I do, that sovereignty is a mission rather than a power. It has for its object the defense and preservation of society and it should be invested with such powers as would permit it to fulfill its mission. Each nation, says Fiore, is organized politically in such a way as is most conformable to the needs of the people and their degree of civilization. It has the right to determine the conditions necessary to its preservation. Sovereignty, consequently, insures the regular development of individual liberty, and represses the abuse of it. It provides for the administrative, economic and military interests; it protects the rights of those who live upon its territory. . . . This principle fully declares the right of sovereignty. There is, in international laws, as well as in national laws, a sphere where the right of society dominates, and another where the right of the individual dominates. Society is sovereign in its sphere, and the individual in his. . . . When it is a question as to private interests, sovereignty is out of the case and consequently each nation may and ought to permit the foreigner to evoke his personal, that is his national, law. So far from this extension of personal laws compromising national sovereignty, it is a striking preservation of it, for it is as national laws that personal laws receive their application everywhere."

§ 57. Objections to the Doctrine. — Interesting and attractive as are the arguments in favor of the adoption of nationality as the determinant of personal rights, there is unfortunately a practical difficulty which makes it impossible for a federated nation like the United States to accept the doctrine. Since each state is a separate legal unit, while all form a single nation, there is no law of the nation which can fix rights. Recognizing this fact, a few authors have suggested that each legal unit should be treated for this purpose as if it were a nation. But it is submitted that this would result in confusion and difficulty out of all proportion to the theoretical gain.

Sir Frederick Pollock has stated the practical objections to the adoption of this theory in Great Britain and America in his accustomed felicitous way:

"Nationality would be very well if each international unit had one, and only one, system of law within its allegiance; and so it seems the natural and sufficient criterion to a French or Italian lawyer (subject to some little difficulties with African and Indo-Chinese customs). But it is quite unmanageable for a national sovereignty including many laws and jurisdictions, such as ours or that of the United States."[1]

The impossibility of applying the law of the nation to determining the personal status of a citizen of the United States has been stated more at length by Wharton.[2]

"Nationality leaves the question still open in Great Britain and Germany, where there are several territorial jurisprudences established under the same national head. In the United States, this union of sovereign jurisprudences under Federal nationality is established by the most solemn constitutional enactments as well as by the results of the late civil war. Each State of the North American Union has its own distinctive law. ... If the status of a citizen of the United States, therefore, is to be in litigation abroad, it would be idle to appeal to his nationality. His nationality would determine nothing. His only nationality is that of the United States; and the United States government, while determining his political status, does not determine his personal status. To get at that status we have to inquire in what State he is domiciled. Here, then, we find ourselves in direct opposition to the new Italian school. The function of Italy, as reconstructed, is to fit a territory to a compact and homogeneous nation. Ours has been to adapt a nation composed of various elements to a territory containing almost every variety of soil, of climate, of traditions, of capacities for cultivation. Nationality, therefore, in Italy means uniformity of jurisprudence; and to know what is the personal law of an Italian, we have simply to inquire what is the jurisprudence of Italy. But nationality in the United States determines, with the single exception of bankruptcy, only political status; and to ascertain what is the personal status of a citizen of the United States, we have to inquire in what State he is domiciled."

A more special difficulty in adopting the new doctrine is felt in the United States, where naturalization is, for political reasons, only granted after several years' residence. To treat a man who had settled down in a new country, accepted its ways of thought and action, and identified himself with its affairs, according to the laws of some distant nationality of birth, now quite alien to him, would be unjust.

Not understanding these difficulties, certain European

[1] Law Quart. Rev. xxxi (1915), 106. See also J. Westlake in Soo. Sci. Asso. 1880, 141.

[2] So. Law Rev. N. S., vi (1880), 680, 700.

jurists have blamed England and the United States as feudal, illiberal and unprogressive because they have not followed many European states in substituting nationality for domicil as the basis of personal rights. It is submitted that these countries are not open to criticism on such grounds. Until some way can be found of substituting state for nation, and taking care of the man waiting naturalization, the United States, at least, must continue to govern personal status by the law of the domicil.

§ 58. The Doctrine of the Renvoi. — Wherever the statutory theory is accepted, and the laws of the two states concerned differ as to whether the law of the nation or the law of the domicil shall be applied, a troublesome doubt appears. Where the law of the forum provides that a juridical event shall be governed by a certain foreign law, and that foreign law in turn remits (renvoie) it to the law of the forum to determine by its law, the situation arises which has been termed the renvoi; and this situation has proved puzzling to courts and authors.[1] Suppose, for instance, that a for-

[1] The doctrine of the renvoi has given rise to a multitude of articles. The following may be consulted: English:

Abbot, Edwin H.: Is the renvoi a part of the common law? Law Q. Rev. xxiv (1908), 133.

Baty, Th.: Note in Law Mag. and Rev. (1899), 100.

Bodington, Oliver E.: A breach in the doctrine of renvoi. Law Times, cxx, 237.

Brown, W. Jethro: In re Johnson, Law Q. Rev. xxv (1909), 145.

Lorenzen, Ernest G.: The renvoi theory and the application of foreign law, Columbia L. Rev., x (1910), 190, 327; an exhaustive and admirable article, to which the reader who wishes to follow further the doctrines of European jurists may be referred. French:

Asser, M. T. C.: La question du renvoi devant la troisième conférence du droit international privé. Rev. dr. int. (1900), 316.

Quelques observations concernant la théorie ou le système du renvoi. Clunet, xxxii (1905), 40.

Audinet, E.: Notes, Sirey, 1899, 2, 105; 1908, 2, 257.

Bartin, E.: Les conflits entre dispositions législatives de droit international privé. Rev. dr. int. (1898), 129, 272.

Beirao, F. A. da Veiga: La théorie du renvoi devant les tribunaux portugais. Clunet, xxxv (1908), 367.

Buzzati et Lainé: Des conflits entre les dispositions législatives de droit international privé. Avant-rapport à l'Institut de droit international. Annuaire de l'Institut, xvi, 47, xvii, 14.

eigner domiciled in France dies, leaving a will; by the law of his country testamentary capacity is determined by the

Colin, A.: Note in Dalloz, 1907, 2, 1.

Dios Trias: De la théorie du renvoi devant les Tribunaux espagnols. Clunet, xxviii (1901), 905.

Fiore, Pasquale: Du conflit entre les dispositions legislatives du droit international privé. Clunet, xxviii (1901), 424, 681.

Keidel, J.: De la théorie du renvoi en droit international privé, selon le nouveau Code civil allemand. Clunet, xxviii (1901), 82.

Labb6, J. E.: Du conflit entre la loi nationale du juge saisi et une loi étrangère relativement à la détermination de la loi applicable a la cause. Clunet, xii (1885), 5.

Lainé, A.: De Fapplication des lois étrangères en France et en Belgique. Clunet, xxiii (1896), 241, 481.

La théorie du renvoi en droit international privé. Rev. dr. int. pr., ii (1906), 605; iii (1907), 43, 313, 661; iv (1908), 720; v (1909), 12; reprinted, Paris, 1909.

Ligeoix: La théorie du renvoi et la nature juridique des règles de droit international privé. Clunet, xxx (1903), 481; xxxi, 551.

La question du renvoi en droit international privé. Périgueux, 1902.

Mazas: De la combination entre la théorie du renvoi et celle de l'autonomie de la volonté à propos du régime matrimonial. Clunet, xxxiv (1907), 603.

Pic, P.: De l'état et de la capacité des étrangères dans les pays de capitulation, et notamment en Tunisie. Théorie du renvoi. (Dalloz, 99, 2, 410.)

Potu, E.: La question du renvoi de droit international privé. Paris, 1913.

Sewell, J. T. B.: Du renvoi d'après la jurisprudence anglaise en matière de succession mobilière. Rev. dr. int. pr., iii (1907), 507.

Surville, F.: La question du renvoi dans les litiges internationaux. Rev. crit., 1899, 215.

Wagner, Albert: Note, Dalloz, 1910, 2, 145.

Westlake: Note sur les conflits entre les dispositions legislatives de droit international privé. Annuaire de l'Institut de droit international, xviii, 35. German:

Bar: Die Rückverweisung im internationalen Privatrecht. Zeitschr. für internat. Privat- und Strafr., viii (1898), 177.

Buzzati, J. C.: Nochmals die Rückverweisung im internationalen Privatrecht. Zeitschr. für internat. Privat- und Strafr., viii (1898), 44.

Die Frage der Rückverweisung vor dem Institut de droit international. Zeitschr. für internat. Privat- und Strafr. xi (1901), 3.

Kahn, Franz: Der Grundsatz der Rückverweisung im deutschen bürgerlichen Gesetzbuch und auf dem Haager Kongress für internationales Privatrecht. Jherings Jahrbücher, xxiv (1896), 366.

Klein: Die Ruck- und Weiterverweisung im internationalen Privatrecht. Arch. f. bürg. Recht, xxvii (1906), 252. Italian:

Buzzati, J. C.: Des conflits entre les dispositions legislatives de droit international privé. Rivista di diritto internazionale e di legislazione comparata, i (1), p. 49.

La questione del rinvio davanti all' institutio di diritto internazionale. Rivista di diritto internazionale e di legislazione comparata, 1901, 2. El Rinvio: Rivista del foro, June and July, 1899, 181.

law of his domicil, by the law of France such capacity is determined by the law of his own country. France sends the question to the law of his country; that law remits it to the law of France, his domicil; and so the question is absorbed into an apparently endless circle.

Three courses are open to the law of the forum:

1. To refuse the renvoi, remit the case in turn to the foreign law, and thus engage in a perpetual deadlock.

2. To accept the renvoi and decide the question in accordance with the terms of its own law, on the ground that the attempt to settle it in accordance with the foreign law has failed: "an expedient resorted to in order to reach a solution."[l]

3. To disregard the renvoi and decide the question in accordance with the terms of the foreign law, on the ground that the foreign substantive law alone concerns the question, and there is no submission to the foreign doctrines as to the conflict of laws.

The second course has its supporters; but on the whole the partisans of the third course prevail.[2]

"The science of private international law has as its object to designate directly the very law which is to regulate a juridical relation, and it should not restrain itself to referring to the laws in force in a state for the solution of conflicts of international law.

"When the science teaches us, for example, that the status of

Cavaglierei: La teoria del rinvio in qualche sua speciale manifestazione. Il Filangieri, xxx (1905), no. 5; reprinted, Milan, 1905.

Fiore, Pasquale: Dei conflitti tra le disposizioni legislative di diritto internazionale privato. Giurisprudenza italiana, lii (1900), 129-158; reprinted, Turin, 1900.

Lue, G. B.: L'applicabilità della legge di rinvio nel diritto internazionale privato. Il Filangieri, xxiii, 721.

For discussions in treatises, see: Bate, Notes on the doctrine of renvoi, London, 1904; Dicey, 715-723; Westlake, 5th ed., 25-42; Pillet, 155-166; Vareilles-Sommières, ii, 96-98; Weiss, iii, 77-81; Niemeyer, Methodik, 15, 17; Niemeyer, Kodifikation, 80-86; Zitelmann, i, 238-248; Anzilotti, La questione del rinvio, etc., in Studi, 193; Buzzati, Theoria del Rinvio nel diritto internazionale, Milan, 1898.

[1] Lorenzen in Col. Law Rev., x, 199.

[2] A list of jurists who have expressed an opinion on the subject (many of them only in the discussions of the Institute of International Law), on one side or the other, will be found in the article already referred to, by Professor Lorenzen, Col. Law Rev., x, 194 n.

an individual is governed by his national law, it is the national law regulating the status that is meant, and not a disposition of the national law which might declare another law, for example, that of the domicil of the individual, applicable to this status.

"The science, in declaring applicable the national law, or the law of the situation of the property, or any other law, has been guided by considerations derived from the nature of the legal relationship in question. It is, therefore, the law itself indicated by it that must be applied, and not another law to which it refers and which could not have been considered by the science."[l]

We may be the less troubled about the finer points of this discussion because the territorial theory of the conflict of laws, which is accepted by the American courts, has no room for any doctrine of renvoi. If an American court, having according to the territorial theory to apply its own law to existing rights, finds that a right has, by its law, arisen under another law, it has only to learn the terms of that law and the nature of the right which it created; if, on the other hand, it is a question of a new right, created by the law of the forum, but the latter law in creating the right acts in accordance with the provisions of some foreign law, as for instance the law of a foreign domicil, again it has only to learn the terms of that particular foreign law and apply it. In no case is the court concerned with the views of any foreign court on a question of the conflict of laws.

§ 59. The Exception of Public Order. — As the theory of comity is put forward to limit the principle of absolute territoriality, so the advocates of the modern Italo-French theories limit the principle of absolute personality of law by two exceptions: that of "public order" and that of "autonomy of the will."

The principle of "public order" is universally accepted, not only by the modern statutists but also by the international school.[2] It is, in brief, that any regulation of the

[1] Asser in Clunet, xxxii (1905), 40; the last two paragraphs were translated by Lorenzen, Columbia Law Review, x (1910), 196.

[2] For the exception of public order, see: French:

Bartin, E.: Les dispositions d'ordre public, la théorie de la fraude à la loi, et l'idée de communauté internationale. Rev. dr. int., vii (1897), 385, 613.

Boissarie: De la notion de l'ordre public en droit international privé. Paris, 1888.

territorial sovereign for the good government of his territory must be obeyed by a foreigner within the territory, no matter what his personal law may be. Agreement on what laws are of public order is very difficult to attain, and the principle is therefore vague and ambiguous. Like all the theories of the statutists, it bears the marks of having been worked out in the closet instead of in the courts.[1]

This difficulty and uncertainty of application seems to be sufficient argument against the adoption of this theory; but there is an even stronger theoretical argument against it. To say that the territorial sovereign may at his will make and enforce rules of public order against a foreign person is really to admit the supremacy of the territorial law, since he has only to regard a law as important to him to have

Despagnet, F.: L'ordre public en droit international privé. Clunet, xvi (1889), 5, 207.

Fedozzi, P.: Quelques considérations sur l'idée d'ordre public international. Clunet, xxiv (1897), 69, 495.

Fiore, Pasquale: De la limitation de l'autorité des lois étrangères et de la determination des lois d'ordre public. Clunet, xxxv (1908), 351.

De l'ordre public en droit international privé. Instit. dr. int., Paris, 1910.

Moutier, M.: Du conflit des lois étrangères avec les lois d'ordre public françaises. Paris, 1892.

Naquet: Note, Sirey, 1892, 2, 201.

Pillet, A.: De l'ordre public en droit international privé. Grenoble, 1890.

Vareilles-Sommières. Des lois d'ordre public et de la dérogation aux lois. Paris, 1899. German:

Fiore, Pasquale: Ueber die Begrenzung der Autoritat ausländischer Gesetze und die Bestimmung der Gesetze der öffentlichen Rechtsordnung. Zeitschrift f. Völkerrecht u. Bundestaatsrecht, iii (1908), 1.

Kahn, Franz: Abhandlungen aus dem internationalem Privatrecht: I. Die Lehre vom ordre public. Jhering's Jahrbücher, xxxix (1898), 1; Jena, 1898 (brochure).

Klein: Abhandlungen aus dem internationalem Privatrecht: III. Die Lehre vom ordre public. Arch. f. bürg. Recht, xxix (1906), 311. Italian:

Rapisardi-Mirabelli, A.: L'ordine pubblico nel diritto internazionale; saggio critico. Catane, 1908.


Bustamante, Antonio, S. de: El orden publico. Estudio de derecho internacional privado. Havana, 1893.

[1] See the article of Kahn, above cited, which is full of wit and satire directed at the uncertainty of the doctrine. Its use as a sort of formula to conceal difficulties in the application of the theory of statutes will be illustrated in the extracts from Pillet's works, post, § 61.

it universally respected within his territory. The doctrine of the supremacy of personal law, limited by the doctrine of public order, becomes identical with the doctrine of the supremacy of territorial law, limited by the doctrine of comity: the territorial sovereign permits the application of the personal law whenever he thinks it worth while, that is, whenever it is not of the first consequence to him to have his territorial law obeyed. The doctrine of public order is in reality the negation of the theory of the statutists.

§ 60. The Principle of Autonomy of the Will. — Dumoulin suggested, and many modern authorities have accepted, the doctrine that in cases where human action is not constrained by law such action is to be governed by free will; and the law, thus consecrating the freedom of the will, gives legal effect to the expression of it. This is the so-called doctrine of "autonomy of the will."[1] According to this doctrine, contracts, sales, wills and other voluntary juridical acts are governed by the law which the actor has in mind; but Dumoulin's most celebrated application of it to the law of marital property is questionable.[2] It is founded, says Aubry, on an idea which is formulated in Article 1134 of the Civil Code, that agreements take the place of law to the parties.[3] In other words, the law of contracts permits one to create in every particular his own right; he may choose how to create it, as well as what to create.[4] The principle, however, is limited by rules of public order. As an example, Aubry cites the provision that a married woman may not make a contract; which is a law of public order, and therefore a married woman cannot by choosing some other law by which to be governed make herself capable of contracting.[5]

In its application to contracts, this doctrine has been adopted by the English courts, and will later be criticised when the English cases are considered. It is enough here to point out that it is the function of law to determine the

[1] For the literature of the subject see Weiss, iii, 112; Olive, Louis: Etude sur la théorie de l'autonomie en droit international privé. Paris, 1899. Trouiller, Maurice: Du rô1e du consentement dans les actes juridiques. Valencia, 1894. [2] Aubry in Clunet, xxiii, 465.

[3] Ibid., 468.

[4] Ibid., 469.

[5] Ibid., 470.

rule which governs a transaction, and to allow the parties to choose that rule is to grant them legislative functions.

§ 61. Pillet's Theory of the Continuity and the Generality of Law. — Two modern French writers, fundamentally different in every respect — training, mode of thought, character of mind — have put forward remarkable original theories which cannot be passed over without particular notice. One of these theories will be considered in a later section; the other will here be examined.

Professor Antoine Pillet, then of Grenoble and now of Paris, in a series of articles in Clunet's Journal of Private International Law, beginning in 1894, put forward the idea of two sorts of law, applicable the one to persons, the other to territory.

A full understanding of the theory requires copious citation, which follows.[1]

"Whenever the question is raised as to the international nature of a law, one of two answers must be given; the law may be either territorial or extraterritorial. It may be territorial, and then every one in the country is submitted to its jurisdiction without distinction between natives and foreigners domiciled or not domiciled, but, upon the other hand, on leaving the country, each ceases to owe it obedience; or it may be extraterritorial, and the contrary effect produced; where upon once being applied to a person (by virtue of his nationality or his domicil, opinions differ) the law follows him everywhere. . . .

"Law should combine, and always does combine, certain characteristics which are indispensable to its effect, qualities without which it would have no reason for existence. . . . We shall notice here but two, the only important qualities from an international point of view, but of the utmost importance: continuity and generality of application. When we say that law is by its nature continuous, we mean that its authority should be uninterrupted; from the day of its promulgation to the day of its repeal the law must always be heard and obeyed. ... It is just as necessary that every law should be general in application to its subjects. . . . Order is necessary to every State, and order exists in the domain of law only in so far as the law is applied without distinction to every person within the limits of the State. . . .

[1] Clunet, xxi (1894), 417, 711, xxii (1895), 241, 500, 929, xxiii (1896), 5. The extracts are from the first two articles.

"From an international point of view, continuity necessarily implies extraterritoriality; generality of application, territoriality. . . . For a law to be truly continuous, it must apply under all circumstances to the person subject to it, it must follow him abroad when he leaves his country, and it must rule all his affairs there as well as in his own. ... To take the common example of a law of capacity: suppose it ceases to apply to a person when he leaves his own country, or that it only remains inapplicable to such of the person's property as is situated in a foreign country, and it will be clear that the law misses its object because it misses continuity of effect. . . . One can see that if, in the case of the same person, a period of complete incapacity is followed by a period of limited capacity, all the results that the legislator might attain by the rules he established will be forever compromised by the breach of continuity which will be produced in the application of the rule. In the same way generality is inseparable from territoriality. . . . That order which it is the object of the law to establish would not exist, unless all matters within the control of the society which is ruled by the law were equally subject to its provisions. . . .

"Now let us see what would happen if each State in administering justice should carry the consequences of this situation to its logical conclusion. . . . No State would then suffer the application of any foreign law in its territory. Trusting in the generality of its own law, and the territoriality which logically flows from it, the State would assert its authority in all foreign interests which asked aid of its justice. But on the other hand, by a deduction drawn from the character of continuity and extraterritoriality, equally belonging to it, it would apply its own law also to the interests of its own subjects in foreign lands. One must conclude that the harmony which should exist between the laws of various countries can be obtained only through a sacrifice. . . .

"The solution of this question cannot depend in every case on the will or the fancy of the one who, as jurisconsult, or as judge, has it to solve. In other words, the territoriality or the extraterritoriality of laws cannot be abandoned to arbitrary will, or as we say, in terms at once fitter and more classic, to the comity of nations. . . . We must discover some law of harmony, choose indifferently or for simple reasons of equity, either the territoriality of laws or their extraterritoriality; find the principle of harmony which will destroy as little as possible the useful effect of the law, or in other words leave intact as great part as possible of the authority of law. . . . Let us suppose a conflict on the age of majority, in our country twenty-one years, but by the foreign personal law of the party twenty-five years. The French judge has before him two solutions, two means of putting an end to conflict and establishing harmony: to apply the local law by virtue of its territoriality, or the personal law of the foreigner by nature of its extraterritoriality. Each of the solutions has its advantages and disadvantages. The first is more favorable to the public order and credit; if it is adopted, every one within the territority will be of age at twenty-one years, and one will never have to suspect hidden facts which may lead to the application of a foreign law. On the other hand, it will have the disadvantage that the foreigner in question will suddenly come of age upon crossing the boundary of the country. The other solution would have neither this disadvantage not the corresponding advantage. Can one suppose that a judge, if not bound by any provision of positive law, could hesitate between the two? The experience of the past answers the question clearly. Hesitation is impossible, because, of the two solutions, the first in return for a slight advantage involves a disadvantage which almost totally destroys the utility of such a law. What is the use of prolonging minority until a given age, if the minor may by a journey free himself from the incapacity? Such a solution reduces almost to naught the authority of the law on this point, whilst the other solution maintains the chief and essential features of its authority, and sacrifices only a territorial effect of little importance in this connection. . . . The great school of "statutaries" thought that the international effect of laws should depend on their object; meaning by this ambiguous word, object, the person or thing which is directly and immediately affected by the law. We thus reach the essential distinction between the two classes, — real laws which were territorial, and personal laws recognized as extraterritorial, — so completely that the two expressions were synonymous. . . . The extraterritorial application of laws relative to the person did not cease to cause them doubt and even remorse. They accepted it, but usually in spite of themselves; as is sufficiently proved by the eagerness with which they recurred to territoriality whenever on the slightest pretext they deemed themselves authorized to do so. In fine, the distinction made by this school, even supposing it applicable to the facts (which the invention of "statutes mixed" shows to be doubtful) had no principle behind it; this error was its greatest, but it was irremediable. . . .

"One cannot deny that the essential feature of law is its social object. If, in fact, one analyzes the idea of law in any one of its applications, one necessarily reaches this first conclusion, that law is always the means employed by the legislator to reach a determined social object. . . . The object of a law is not the immediate effect it has in view: that is the very content of the law, the means employed by the legislator to reach the object, not the object itself. . . . The social object to be attained is the raison d'être of the law, gives it its distinctive characteristics, assigns it its period; is it not logical, therefore, to conjecture that its international effect should be measured by its social object? Such is in fact the rule we propose. We know that laws are by nature at once territorial and extraterritorial, that they may in international relations preserve but one of these characters; we think that in each case the choice of character should be determined by considering the social object of the law. We shall declare territorial all laws the object of which could not be attained if in each country they did not apply as well to foreigners as to citizens; extraterritorial all laws the object of which requires that they should follow everywhere the person who comes under the force of their provisions. In every case, then, we shall consult the social object of the law under examination; that will be the only key to the problem of conflicts, the rule by which we shall resolve whether a law should be regarded as territorial or extraterritorial. . . .

"Like the needs which it is their purpose to satisfy, laws can have one only of two objects: to protect the private interests of individuals, or to secure the conditions of existence and the functional operations of the body politic. That is their social object, the result to which they tend; a result which concerns the legislator only by reason of the influence it exercises on the condition of society. To the first category will belong laws which have for their end to place the individual in the position most favorable for his development and preservation; such are laws of the family, which have for end to establish in the persons concerned a unity of interests and responsibilities conforming to their natural affinities; in the same way, laws which have for end to advise, to guide those who cannot look out for themselves; finally, those which will have the good result of saving one from his own devices. To the same category belong laws destined to assure to every one the fruits of his toil. The second class of laws is made up of those which have for their end to determine the general conditions of society; one will generally recognize them easily by the circumstance that within the borders of a country they interest all persons equally, whatever their condition, because the interest of each one in having them observed is the same as the interest all have in the maintenance of the political body based upon them. . . .

"Laws for individual protection should be extraterritorial. This is in fact implicitly included in the very idea of protection. For protection to be efficacious it must be complete, or, to return to familiar terms, continuous. It should be continuous in time and space; suffer no interruption, for one moment of interruption always compromises, and may suffice to ruin the effect of long continued protection. It must be continuous in space, by which we understand that the person should be protected everywhere; and if, as often happens, he owns goods in several countries, thus subjected in fact to several different sovereignties, the law which protects him should extend to all his interests in spite of differences in the laws which complicate matters. All protection is armor, which does not fulfill its office unless it is without flaw. . . .

"Laws for the security of society include all provisions deemed by the legislature necessary to the existence of the State, and to the performance of its various functions. It is of the first importance that within a country the wills of all without exception, including both natives and foreigners, should yield obedience to laws for the security of society. These laws are imposed on citizens only because they are absolutely requisite for the interest of society; those sacrifices of interest required of citizens may all the more be required of foreigners, mere guests. . . .

"Does a law have in view individual interests or the interests of society? Supposing it to be applied, is it the individual to whom it is applied who will be benefited, or is it society as a whole? . . . One may ask (which amounts to the same thing) whether an individual or the body politic would suffer loss by its repeal or non-enforcement. . . .

"A third method may be usefully employed in the most embarrassing cases. When a law has been made for the purpose of the security of society, all citizens profit equally every time it is applied; if it has been made for the protection of individuals, those benefit by it directly who enjoy the rights it creates, and the common good is only an indirect and minor consequence of the good of those individuals. Let us consider together two doctrines, the right and the lack of right, respectively, to establish paternity. They seem equally to concern the State and individuals. The law which authorizes the establishment of paternity may seem to be a law for the security of society, for it facilitates the natural classification of individuals; but it is easy to see that society derives advantage from its provisions only as a result of the fortunate effect which its application has upon the condition of the parties. To the legitimate child it is a matter of entire indifference. On the other hand, the law which forbids it has evidently been passed not out of favor to the seducer, but by reason of a quite legitimate fear of the scandal which such suits cause. No one can claim an individual interest in the application of this law, but all the members of society have an equal interest in its being observed; the interest is entirely political, and the rule should be regarded as territorial."

Professor Pillet's theory is ingenious, interesting and specious; but we seem not to reach firmer ground if, accepting it, we try to determine the application of law by deciding whether in establishing it the legislator was regarding it more important that the law should be universal or that it should be continuous. In the first place, the meaning given to the word continuous seems hardly sound. The continuity which a law needs in order to attain its end is a subjective, not an objective, continuity; it is important that there be no break in its existence, rather than that it be applied continuously to a particular person. True continuity of law — that which is necessary to prevent the failure or forfeiture of acquired rights — demands territoriality, in order that this continuity may be enforced.

But, without further laboring this objection, a more fatal objection to Pillet's theory as a practical working principle is, that it offers no certain or simple method of distinguishing the two classes of laws. The very example he gives of a law which must be continuous disproves the possibility of the distinction he seeks to make. His suggestion that everyone would agree that the law of majority must, in order to attain its ends, be applied continuously is met, first, by the fact that no common-law court has so held, and the opposite has been often decided; secondly, by the fact that however unanimously the French courts accept the rule in theory, in fact they frequently refuse to follow it.

The theory in question, therefore, is too uncertain in its application for acceptance as a working theory. "Truth in law, like beauty in architecture, is simple, clear, restful; characteristics which M. Pillet's doctrine does not possess."[1]

[1] Vareilles-Sommières, i, 165.

"M. Pillet is right in saying that there is only one public order, but his definition of public order is pure fantasy, and his theory that laws of status and capacity are not of public order is the height of paradox."[1]

§ 62. Pillet's Later Theories. — In a later work[2] Professor Pillet modified to a certain extent, or at least amplified, the statement of his theory. The statutists, as he says, are seeking a universal rule for the settlement of conflicts, which is not easily distinguishable from a rule of international law: a "general and truly international form" of solution, but still "not international law, but national systems of solutions of international questions,"[3] as to which "it is of public interest to sovereigns to see that its principles are carried out, so as to protect its subjects."[4] This common system for the solution of conflicts is not the international system, which prevents all conflicts by postulating doctrines of international law, binding on every nation, and by its own force creating international rights and duties.[5]

Pillet seems, however, to go beyond the statutists in the direction of an internationally binding law. He emphasizes the existence as a matter of fact of an association of civilized nations, bound together by social and commercial ties; and while he does not admit that there is a binding law of this association which transcends the separate laws of each state,[6] he cannot conceive of an international society living without an international law, unless it lives in disorder and anarchy.[7] He appears to conclude that there was at one time an agreement upon identical principles in the different civilized countries, which have with time become diversified by legislation.[8]

§ 63. The International System. — Sharply contrasted in some respects with the statutory theory, though not altogether distinct, is the doctrine that there is a body of

[1] Vareilles-Sommières, i, 104 n. See Pillet's theory expounded at length and criticised by this author, i, 154-183.

[2] Principes de droit international privé (1903).

[3] Pillet, 91.

[4] Pillet, 70.

[5] In the sense in which the word "international" is here used, it does not mean "concerned with the rights of nations as persons," but merely "having relation to the affairs of more than one nation."

[6] Pillet, 8, 55.

[7] Pillet, 95 n.

[8] Pillet, 97, 100; and see 64 et s.

international principles for solving all legal questions which arise where more than one nation is concerned. It differs from the statutory theory in that it supposes no separate laws contending for the mastery, but a single system, which by its own force inhibits all laws not in harmony with itself. Pillet suggested that at one time there may have been such a single international system; but in his opinion the tendency is rather toward diversity, through legislation, than toward unity. Lainé, however, finds a distinct tendency in private international law toward a unity which it will sometime attain.[1] But the true internationalist goes further. He holds that private international law is an existing customary law, growing out of a gradually accepted custom. "It can be demonstrated that there is to a certain extent a real communis consensus of civilized states, a true law of custom."[2]

Laurent, to be sure, accepting the Austinian notion of law, argues that this cannot be law at all, because it lacks all sanction; the customary law of a country, having a sanction, is tacit law, but this is merely tacit agreement.[3] "The law of nations," he adds, "is as yet only history, on its way to become law."[4] But the internationalists brush this objection aside.

"Of course," says Bar,[5] "every state has, in the abstract, the power of denying effect within its own territory to such a law of custom. But up to that limit the general law of custom, if it can really be shown to be such, will be recognized in the individual state. We cannot admit the objection, therefore, that there can be no such thing as a general law of custom, with reference to the rules of private law, for the whole of the civilized world. The boundary of the state has this significance merely, that it can deny effect to such universal propositions of customary law, a denial which, as a rule, will draw down upon itself and its citizens considerable disadvantages." Lainé points out[6] that the will of each state to admit this law is constrained by reasons of justice and interest, while Catellani suggests[7] that the will of each state is limited by "that association of states which, like all collective bodies, necessarily subordinates or limits each of the single bodies that compose it."

[1] Lainé, i, 44.

[2] Bar, 5, § 4.

[3] Laurent, i, 12.

[4] Laurent, i, 67.

[5] Bar, 6, § 4.

[6] Lainé, i, 3.

[7] Catellani, i, 10.

§ 64. The Early German School: Wächter, Schäffner, Savigny. — The doctrine of an internationally binding doctrine has been developed by the German jurists. Soon after the publication of Story's treatise, the German lawyers began more seriously to turn their attention to the subject.[1] The author who accomplished the transition from the older law to the peculiar doctrines of the German school was Charles George Wächter (1797-1880), professor at Tubingen and at Leipzig.[2] According to his doctrine, the territorial law must always be applied by a court; if the territorial law provides that a juridical relation be governed by a foreign law, then and only then will that law be applied.[3]

William Schäffner (1815- ) followed with a doctrine which contained the germ of a theory of vested rights.[4] According to this theory, every juridical relation is to be determined as a matter of right by the law of the place in which it came into existence.[5] This theory has been not unfairly criticised as artificial and crude.

The ideas of these two authors influenced to a certain extent the doctrine of a great lawyer who next wrote upon the subject in Germany. Friedrich Carl von Savigny (1779-1861), professor at Marburg, Landshut, and Berlin, included an examination of the doctrine of the Conflict of Laws in his System des heutigen Romanische Rechtes.[6] Savigny's doctrine is thus summarized by Laurent.[7] The territoriality of laws is a secondary question; one must see first of all what is the nature of the juridical fact which the judge has to pass upon and then find the law which ought to be applied to this fact, in order to solve the difficulty. This law will be applied without distinction of whether it is native or foreign. As Savigny himself states the question, it is "to ascertain for every legal relation that law to which, in its proper relation, it belongs or is subject,"[8] except that "laws of a strictly imperative nature, clothed with a public interest, are always enforced by their own courts; and

[1] For the German School in general see, Bustamante, 459; Catellani, ii, 1; Weiss, iii, 50.

[2] Catellani, ii, 49; Weiss, iii, 51.

[3] Weiss, iii, 52; Meili, i, 116.

[4] Meili, i, 115; Weiss, iii, 53.

[5] Bar, 49.

[6] For Savigny, see Catellani, ii, 92; Laurent, i, 608; Meili, i, 117.

[7] Laurent, i, 608.

[8] Savigny, 70.

peculiar legal institutions of a foreign state, not recognized by the law of the forum, are given no effect."[l]

"The strict right of sovereignty might certainly, among other things, go so far as to require all judges of the land to decide all the cases that come before them solely according to the national law. . . . Such a rule, however, is not to be found in the legislation of any known state. . . . The standpoint to which this consideration leads us, is that of an international common law of nations having intercourse with one another. . . . This sufferance must not be regarded as the result of mere generosity or arbitrary will, which would imply that it was also uncertain and temporary. We must rather recognize in it a proper and progressive development of law."[2]

The proper law is ascertained by a universal, that is, an international, principle of law, which may be discovered by the exercise of reason. This, as Vareilles-Sommières says,[3] is a recrudescence of the ideas of the early Italian statutists; and he adds that the so-called doctrine of Savigny is not a doctrine, but simply a method, and a method which, "logically applied, reconstitutes in every part the theory of statutes."

Savigny was the first to state, in a form in which it has been widely accepted, the theory of an international origin of the doctrines of the conflict of laws. As Bar truly says,[4] "He was the first to take up with full consciousness his starting point in the idea of an international community of law which restricts all territorial laws, and defines their competency, and in thinking, not of a conflict of legal systems, but of a harmonious combination of all."

Savigny's influence on the development of the subject has been profound; and a long list might be made of the authors who have more or less absolutely accepted his doctrine.[5]

§ 65. The Doctrine of von Bar. — Ludwig von Bar took up Savigny's theory of an international law and developed it

[1] Savigny, 78.

[2] Savigny, 69, 70.

[3] Vareilles-Sommières, i, 143.

[4] Bar, 56.

[5] Weiss enumerates the following (iii, 54 n): German: Walter, Gerber, Windscheid, Mommsen, Bar. Austrian: Vesque de Puttlingen. Dutch and Belgian: Asser and Rivier, Rolin. Spanish: Torres Campos. Italian: Brusa. Russian: de Martens. Swiss: Brocher. French: Lainé, Despagnet. English and American: Phillimore, Westlake, Beach-Lawrence, Wharton, Minor.

into a consistent body of doctrine, starting with the allegation that private international law is "an independent department of law . . . not merely a part of the domestic law of each state."[1] While not prepared to deny that in a sense the doctrines which he among the first called private international law are part of "the juridical principles of each particular state,"[2] he denied to the state arbitrary power in settling these doctrines.

"Rules of private international law," he says,[3] "cannot possibly be dependent merely upon the arbitrary determination of particular states. The state cannot assert the competency of its own legal system in absolute independence of other states, and in the face of their sovereign rights, which are of as much weight as its own. Such a claim will most assuredly be met by certain limitations belonging to the law of nations."

"To pay regard to foreign rules of law to a certain extent is the legal duty of every State, and is not a matter of mere caprice and goodwill — the duty of every State, that is, which wishes to maintain the commercial relations of civilized peoples. If now and again the word comitas is still used for the considerations on which the application of foreign rules of law ought to depend, that is rather a difference of expression than of real meaning.

"Private international law, then, as it is to be inferred from what has been already said, is not a product merely of the sovereign legal system of each particular State, but is a result of the nature of the subject itself, claiming recognition as in a sense necessary, a result of the requirements of commerce, and of the reciprocal recognition of their legal systems by the different States. No doubt each individual State may to a certain extent permit itself to deviate from the rules of international law, and these deviations, however perverse they may be, are for the time positive law for that State, which can be carried out so far as the sphere of its power in fact extends. But capricious deviations of this kind generally bring great disadvantages in their train, even for the State which allows itself to practise them. They are not truly law, any more than the deviations from the law of nations in its technical sense, i.e., public international law, which a State may allow itself to practise, are law, although it may see that these deviations are carried out, so far as its own power extends, by its officials and official machinery against private persons.

[1] Bar, 2, § 2.

[2] Alb, L. J., xii, 232.

[3] Bar, 2, § 2.

"The material principle of private international law, as we have figured it, requires no further sanction from special statutes or international treaties, because the nature of the subject, by its inherent reasonableness as a principle, will obtain recognition and prevail by its own strength. But that principle may no doubt be modified in many points by the law of custom and special treaties."[1]

§ 66. The Doctrine of Zitelmann. — Ernst Zitelmann of Leipzig is the latest and most advanced author of the international school; and his doctrine will repay a careful study.

Such a study has fortunately been made by one of the ablest of his contemporaries, Professor Eugen Ehrlich of Czernowitz; and since his analysis is far truer and clearer than that of any foreign scholar could be, it is here reproduced.[2]

"The attempt of Zitelmann goes beyond everything that the Internationalists have hazarded before him. Starting from the principles of the Law of Nations, which all recognize, he attempts to build up a system of private international law absolutely complete, resolving with certainty every question that can arise. According to Zitelmann, the principles furnished by the law of nations do not merely, as the other Internationalists have it, provide the limits within which the legislation and jurisprudence of the states may move. These principles, in his eyes, make up Private International Law itself; and they decide directly, according to law, how different litigated questions should be solved. These principles constitute an integral portion of the law of nations, and therefore individuals cannot evoke them any more than any other rule of the law of nations; for the law of nations confers rights only on states and imposes obligations only on states. The legislature of a state, which the judge of a state must obey, may certainly pass laws which are contrary to private international law, though founded on the law of nations; but it is quite clear that in so doing they cannot deprive that law of its own power. The law in that case has the same validity as before; but this validity exists only from the point of view of international law. The only result of this contradiction would be, that beside a private international law based on the law of nations, and superior to states (which, like every rule of the law of nations, binds states

[1] Bar, 77, § 32.

[2] Revue de droit int. privé, iv (1908), 902, 917; translated from the original in Deutsche Rundschau for March, 1906.

only), there would be also a private international law peculiar to the state in question, which would bind the judge of that state. The supra-state private international law contains fundamental principles, upon which the different states ought to base their own intra-state international law in order to put it in conformity with the law of nations. So far as the judge is concerned, the only value of the supra-state law is to furnish rules to which the judge may refer whenever, on a particular point, his own intrastate private international law furnishes him with no solution; for one may assume in such a case that the state itself has willed on this point to conform to the general rules of the law of nations. This supra-state law may again be applied when the parties, without allowing the court to intervene between them, are ready themselves to govern their situation by taking advantage of juridical principles. One may suppose in that case that they have willed to decide according to the principles of the law of nations the questions of private international law which might arise between them.

"The private international law in force in each state is therefore composed: first, of statutes passed by the state itself, and concerned with private international law; second, of the rules of the supra-state private international law which bind the parties and the judge in default of statute. Zitelmann calls the body of the two groups rules of application destined to determine the law which should be applied. The first he calls 'rules of conflict,' and the second 'rules of subsidiary application.'

"All authority in a state derives its source, according to the law of nations, either from personal sovereignty or from territorial sovereignty. When a state assumes to apply its own law to a particular litigation, it must necessarily base its action either on the fact that the person sued is submitted to its authority because he is a member of the state, or on the fact that the object of suit is situated in the territory over which he has jurisdiction. On these two fundamental rules of the law of nations, Zitelmann constructs his entire private international law. One might certainly argue that since the law of nations recognizes a fundamental rule, all the consequences of this rule should also be admitted even if the law of nations does not recognize them. But Zitelmann does not teach such a doctrine. He says only ' since the consequences of a rule of law should have juridical force equal to that of the rule itself, unless this force is specially taken from it by the effect of a contrary rule, in the same way the principle deduced from the admitted rule may properly claim the same validity as a principle of the law of nations.'

"It follows that when a state wishes that its law be applied to a certain relation, the state cannot by virtue of the law of nations justify this desire except by evoking its personal or territorial sovereignty. By virtue of the personal sovereignty, the state exercises its jurisdiction over its members. By virtue of territorial sovereignty it exercises jurisdiction over all things movable or immovable which are found on its territory. When an individual sets in motion his right over another, this right can be guaranteed only by the state of which this last person was a part, and to the sovereignty of which he is submitted. When the right is claimed over a thing, the solution should be furnished by the law of the state in the territory of which the thing is found. In the law of civilized people rights belonging to individuals over persons have their only source in family rights or rights of contract. Rights over things have their source in real rights. Therefore, a family right should be governed by the statute personal of the person submitted to the right, a contract right by the statute personal of the debtor, and a real right by the statute real of the situation of the thing. For all other rights one would apply the law of the state in which the acts are done which are alleged to have created the right, or in which the acts were committed which were forbidden by the law, that is, the territorial statute.

"Therefore, the law of that state should always be applied, in the sphere of whose sovereignty the effect of the right created is to take place. If this effect should concern a person, it would be the statute personal; if it should concern a thing, it would be the statute real. If several effects flow from a single situation, the statute will be determined for each effect according to the nature of that effect. If several situations act together in producing a single effect, they are all to be judged according to the statute of this effect. To several situations with a single effect one should apply one single statute; to a single situation with several effects one would apply several statutes.

"The conception of law which serves as a basis for all the work of Zitelmann is very remarkable. That Zitelmann sees in a state the source of the objective law is a very natural thing in a modern Internationalist. For him, as for all of them, conflicts between the laws of different states are the only ones with which private international law occupies itself. But Zitelmann draws from this idea the most extreme conclusions. He sees in the state the source of every subjective right. When a person has a right, he always gets it in the last analysis by reason of a concession of the state or of a recognition of this right by the state. Zitelmann knows very well that this conception is contrary to history; subjective rights are older than the state and even today there may exist in Europe individual subjective rights which in their origin go back to a period before the existence of states. But to construct the private international law of today it is necessary to utilize only the concepts which are today alive, or which at least are in course of formation, upon the nature of the state and of law; and the ideas which today are more or less current on these questions have found a strong expression in Zitelmann's theory. From this point of view Zitelmann's work marks, in a way, the actual present condition of evolution.

"One may say as much for the other fundamental idea of Zitelmann's work, his Internationalism. In the face of the nationalist tendency in private international law, the internationalist tendency presents itself to us as more modern, and more advanced. When Nationalists claim that every judge decides first of all in conformity with his own law, they really leave to chance, which determines what judge has to decide the question, the task of deciding the law which is to be applied. The Internationalists, on the contrary, ask what the law is which, according to purely international reasons, ought to govern such and such a legal relation. But like all novel ideas, the internationalist idea has to win a difficult fight before entrenching itself deeply in the mind. Today, everybody, perhaps, is in a way nationalist, not even excepting the Internationalists. The latter cannot escape the current notion that the judge has the preeminent duty of applying the law of the state which appointed him. The law of his own state is to him the normal and natural law; the foreign law is a law which may be taken into consideration in exceptional cases, and in very peculiar circumstances. In fact, the difference between Nationalists and Internationalists today is not as profound as it seems.

"Now from this point of view Zitelmann marks the extreme point at which the evolution of ideas has arrived. In no other system of private international law have the national law and the foreign law, taken altogether, been placed upon a footing of equality. Zitelmann's system presents us a theory free from every trace of nationalism and entirely international. In this it is completely rationalistic, and in its inmost essence, and in the goal which the author pursues without wavering, it is absolutely anti-historic; for nationalism always constitutes the historical element of the law. Zitelmann sets before us one ideal alone, an ideal which we must accept if, with a rigorous logic, we deduce the consequences and the conclusion from the initial proposition.

"The exponents of private international law have always at this point met one particular difficulty: there is not yet any international juridical language. The particular juridical tendencies of each of the several national laws are so different that it is scarcely possible to express them by making use of the approved terms of a foreign law. Each law has its own terminology and its group of particular conceptions. Representatives of the nationalist tendency have often presented this difficulty as an argument. Suppose, for example, that the rule of application of a state decides that a transaction by a foreigner incapable of contracting by himself shall be valid, if it is authorized by the authority which a guardian exercises over the foreigner; what is going to happen if the law which is to be applied by virtue of this rule takes the words "incapacity to contract," "authority of guardian," "authorization," in a sense quite different from the law which orders the application. The Nationalists then reach the conclusion that the national law of the judge should in this case also settle the question. This solution is simple, but it is not always possible to be applied. Anyone who has had to do with foreign documents knows how difficult it often is to say whether a certain document, executed abroad, is a specialty with regard to the national law; whether the juridical consequences that follow it are governed by the law of things or by the law of obligations. Since the foreign law upon these points may have quite other conceptions than the law of the forum, it may be very difficult to arrive at a clear solution in making use of the provisions of the latter law. The difficulty is even greater for the internationalists, who absolutely lack the assistance of the principle indicated above. If private international law is to include not rules of law of such and such a particular state, but rules governing the laws of all states, these must not be understood and interpreted by the aid of terminology and conceptions of any particular state law."

§ 67. The World-Law of Jitta. — Professor Joseph Jitta, of the University of Amsterdam, has propounded a theory which seems an altogether original extension of the German doctrine of international principles. The principles for the solution of conflicts of laws are, in his opinion, not so much international as ultranational. He bases them not on any law of nations, but on a law of humanity. There is an eternal conflict, he says, between humanity and territorial claims.

The object of private international law is to put private law into harmony with life. The complex relations of humanity are innumerable, and, as in case of private law, cannot be brought within the narrow bounds of a code or a treaty. His object is to make sure that the law applied to these international relations is the best proper law. This cannot be accomplished by leaving the settlement of legal principles to the nations. The legislator must be humanity; society itself must fix the principles of private law applicable to international relations.

This has been rightly called a new Jus Gentium;[1] but it is a jus gentium properly so called, a law of all people, not a law fixed by a single dominant state and called by a seductive name.

"The law," he says,[2] "arises out of the lack of harmony between the juridical life of man and the positive law of each state. Life creates daily, between all members of the human family, relations which require a juridical sanction, whilst positive law is developed with reference only to a single group of men." He continues:[3] "Our science is based on the corporateness of the human race, which is derived from the social nature of man, a gift of the Creator; it has as its object the development of the positive private law of this body, so as to assure the individual his full legal rights, in every sphere of human relations. There being no such political organization now, we are forced to begin with the present law of existing states; but the end in view is the reign of law in the world-state. This is not a mere dream; the theory deals with actual facts today, but they are dealt with in view of the desired end.

"Each state has duties to fulfil, not only towards the national sovereign, but also toward the world-federation of individuals." The object of the law is to submit to rules of law the relations between individuals, and not, as other authors would have it, to regulate private relations between states, or between a state and an individual, or rather between the different national laws. Thus the search is for general rules which shall determine with certainty the application of one or another law to the national controversy, instead of deciding what should be the law governing the particular relation in question, which is the object of Jitta's search.

To his theory there are two branches: one, in each state, the individual method, that is, the working out of the principles of

[1] Juridical Review, xx, 109.

[2] Jitta, Méthode, 1.

[3] Méth., 96 et s.

world-law through their adoption in any particular state; the other the universal method, the working out of principles into law created by the collective body of states. As to the individual method he says:[1] "The legislator of each state should apply to every juridical relation, considered under all the forms in which it presents itself in the actual condition of mankind, the principle which fits its nature, that is, the purpose which it fills in the world-federation of men." As to the universal method, the "juridical rules intended to receive their application throughout mankind,"[2] he says[3] that "states as a body have the common duty of insuring the application of private law to all mankind by formulating positive and universal juridical rules, based on a common belief of states with relation to the social end of juridical relations."

Jitta's theory, when worked out in "the individual method," is almost indistinguished from Savigny's. It is his universal method which is original and striking. He has expressed it in a few words:[4] as there is a common law of each nation, so there is a common law of humanity, of which national laws are a source. The theory is not without support from other thinkers. Thus Fusinato somewhere says that if one once goes beyond the region of purely positive law, no distinction can any longer be made between the interests and the laws of society; and several authors have laid stress on a quality of modern law, that is, respect for the human being.[5] Mérignhac[6] asserts that "each man is a citizen of a particular country; at the same time, he is a citizen of the world." But those very authors refuse to postulate a general law of humanity which could transcend national law. It would be "too vague, too narrow, too embryonic"[7] to be vouched against the political law of an organized nation.

And indeed the most unanswerable criticism of his theory seems to be found in the nature of law itself. However jurists may disagree as to the nature or genesis of law, all agree that it is a creature of a politically organized society. Humanity, not organized into a single political societie, or nation, cannot possess a law in this sense, the sense in which the word must always be used by lawyers.

[1] Jitta, Méth., 196.

[2] Méth., 221.

[3] Méth., 238.

[4] Méth., 42.

[5] Laghi, i, 155 et s.; Lainé, i, 20; Pillet, 55 n.

[6] Traité de droit public international, i, 6.

[7] Pillet, 55.

Yet while the ideas of humanity cannot be laws, they may and must be the source of law. Thus Pillet, after denying the name of law to the tenets of humanity, adds that they "protect human life, liberty and honor,"[1] that is, that they accomplish the ends of political law; and Jitta himself[2] finds the existence of a legislative force in the requirements of human society: "How explain the authority given, in certain cases, to foreign law or to the judgments of a foreign court? Should one say that the state allows this authority by comity, or for its own interest, or that it fulfils a juridical duty; and in the latter case, upon what is this duty based?"

§ 68. Criticism of the International Theories. — The theory of internationality has many things to commend it. It would bring about identity of rule throughout the world, and this identity is greatly to be desired. It would furnish a basis for the protection of rights much more firm than that offered by either of the other theories. And since it would be a law principally made by jurists it would be a philosophic and reasonable science in every part. Dr. Franz Kahn, who does not accept the theory, admits[3] that it has rendered a greater service than the opposite theory.

It is not altogether surprising that this theory should have been authoritatively put forward by Savigny, who had thoroughly studied the development of European law from the Roman law, or that it should find numerous adherents among the scholars of Europe. The existence of a method of legal thought common to the law of several states, and the acceptance of the system of Civil law which transcends national lines and forms the basis of national laws, justify a conception that such a law has an international force. The received name, private international law, by suggesting an analogy to the law of nations, adds force to the conception.

And yet even more cogent arguments disprove the theory. A truly international law must have two characteristics: a well-defined body of rules, and a universal acceptance of these rules by civilized nations. Both these characteristics are lacking in the Private International Law of Savigny and Bar.

[1] Pillet, 55.

[2] Méthode, 4.

[3] Kahn in Jherings Jahrbücher, xl, 18.

First, there is no such definite body of rules on which nations can agree. It has already been seen how many contesting and contradictory theories have been put forward by the statutists: and the same contradiction is found in the internationalists. Wächter would apply the lex fori; Eichhorn and Goschen the lex domicilii; Schäffner the lex loci;[1] while Savigny and Bar are in agreement neither with these nor with each other. If a common international doctrine is to be found by the aid of the jurists, its discovery, or at least its general acceptance even among scholars, is yet to come.

Second, civilized nations have not agreed to receive a single system. It may be possible, through European conventions, to bring unity out of the contending doctrines, but only for the law of such countries as have received the Civil law. In the countries of the common law the acceptance of this agreed system is not merely improbable but impossible. As has been seen, the political situation is such, and is likely to remain such, in the countries governed by the common law, as to make inapplicable to them many of the most firmly held doctrines of European law.

A system of law which is neither clearly defined nor universally accepted cannot fairly be called international.

§ 69. International Legal Systems. — While, however, no single system of international rules can be found to govern international juristic relations, it is of course true that two systems of law divide between them the nations of the civilized world, and that no national law can escape the dominion of the principles of one or the other system. Certain ideas as to the nature and jurisdiction of law and the characteristics of juridical rights and relations are common to the laws of all European nations, and form part of those laws. In a restricted sense those principles may be called international, though only in the same sense that the "civil law," so-called, is international. In the same way, certain principles are held by our common law, and are therefore received into the positive law of every common-law country from this common source, and are held by these positive laws in substantially identical terms. If, therefore, we confine our-

[1] Jitta, Méth., 111.

selves to general systems of legal thought of which positive laws are merely the application, we shall find not one but two private international laws, dividing the civilized world between them.

This fundamental distinction is clearly described by Lainé: "The English common law differs fundamentally in two respects from the law of the European states. It has no trace of Roman law. The Roman domination, of short duration in Britain, left no trace; and the study of Roman law has had no sensible influence upon the private law. On the other hand the feudal [territorial] law has penetrated throughout the civil law, and even today gives it a quite individual character among the laws of Europe. In the second place, England having always possessed, from the time of the Norman conquest, with a few exceptions, territorial unity in its law, and having carried its law into Wales and Ireland, has known no conflict of laws and customs. It has therefore no anciently formed rules fit to serve as the basis for its private international law."[1]

These considerations really reconcile the philosophies of the German and the common-law writers. That system of law may in a fair sense be called international which is accepted as the basis of its law by several independent countries, although in each legal unit its own law, based to be sure on the common system, lies within the jurisdiction of its own legislative will. The rules adopted in each state are its own affair, not forced upon it by any legal constraint; and yet those rules are most likely to be identical with those of the general system on which its laws are based. Truly one may say, with Dr. Franz Kahn, that our subject is "a national law with an international method."[2]

§ 70. The Territorial System. — For a long time certain authors have refused to accept either of the prevailing European theories, and have insisted on the exclusive power within the territory of the national law. Grotius, one of the earliest dissenters from the doctrine of the statute personal, insisted that a foreigner contracting with a citizen would be subject to the local law, because he who contracts in any place becomes a temporary subject to the laws of that place.[3]

[1] Lainé, i, 37.

[2] Kahn in Jherings Jahrbücher, xl, 18.

[3] Grotius, War and Peace, lib. 2, c. 11, § 5.

Despagnet, in our own time, says:[l] "The law, which is only the manifestation of the sovereign power of the state, should be absolutely without rival within the territory where it is passed; this goes so far that on principle (excepting limitations later considered) one is to understand that it excludes from this territory the application of any foreign law, for any reason whatever." Dr. Franz Kahn says categorically,[2] "Private international law is national law," and again, "The conflict of positive laws is no conflict from the standpoint of the local judge."[3] He adds, that if the courts of two countries differ as to the rules to apply in case of a conflict of laws "they are both right, each right according to the law of its own country."[4] And Bard puts the same idea neatly: "The solution of private litigation and the infliction of punishments do not depend upon international agreement, but exclusively on the law of the court in which suit is pending; even though the judge should take into account the provisions of a foreign law. In doing so he does not obey that law, but his own."[5]

The English and American judges have most consistently followed this theory. Thus Turner, V. C., in Caldwell v. Van Vlissengen[6] says: "I take the rule to be universal, that foreigners are in all cases subject to the laws of the country in which they may happen to be; and if in any case, when they are out of their own country, their rights are regulated and governed by their own laws, I take it to be not by force of those laws themselves, but by the law of the country in which they may be adopting those laws as part of their own law for the purpose of determining such rights." And this doctrine has been followed by the writers on the common law. Thus Story says:[7] "In regard to foreigners resident in a country, although some jurists deny the right of a nation generally to legislate over them, it would seem clear, upon general principles of international law, that such a right does exist; and the extent to which it should be exercised is a matter purely of municipal arrangement and policy." And the

[1] Despagnet, 19.

[2] TJeber Inhalt, Natur und Méthode des int. Privatrechts, in Jherings Jahrbücher, xl, 87.

[3] Gesetzeskollisionen, in Jherings Jahrbücher, xxx, 54.

[4] Ibid., 55.

[5] Bard, Précis, v.

[6] 9 Hare, 415. ' Story, § 541.

Canadian Lafleur takes the same attitude:[1] "When the foreign law is allowed to control the case, it is because rights have been acquired under that law, and it would be an injustice to the parties to have those rights subjected to the test of another law."[2]

§ 71. The Theory of Comity. — It is obvious that while the territorial law has the right to make such rules as it pleases for the solution of the conflict of laws, the exercise of this right without consideration of the laws of other countries or of the rights created under these laws would be unjust. In order to avoid this injustice, the Dutch writers, followed by Story and Foelix, put forward the theory of Comity. According to this theory, the territorial law alone has controlling force, but in some cases, out of comity or enlightened self-interest, the territorial sovereign allows the personal law to prevail.[3] This, it will be seen, is only the reason for a sovereign's adopting a certain rule of law; the courts do not exercise comity, and are as much bound by the rule adopted by the legislative power as by any other portion of the law. "It is not the comity of the courts, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other principles of the municipal law are ascertained and guided."[4] "The duty of judges is to administer justice according to law, and to decide between parties according to their rights."[5]

The doctrine of comity has been very severely criticised by jurists and by courts.[6] Despagnet suggests that it withdraws reason and makes the law a series of varying positive rules.[7] Livermore says:[8] "The phrase has not always been harmless in its effects, for I have not infrequently seen it inspire judges with so great confidence in their own authority, that arrogating to themselves sovereign power,

[1] Lafleur, 12.

[2] See also A. V. Dicey, Private international law as a branch of the law of England, Law Q. Rev., vi, 1.

[3] Laurent, i, 69, 573; Pillet, 49 n, 52; Rolin, i, 100; Story, §§ 33, 38.

[4] Story, § 38, quoted and applied by Taney, C. J., in Bank of Augusta v. Earle, 13 Pet. 519, 589.

[5] Livermore, Dissert., 26.

[6] Bar, 26, 57; Schäffner, 130.

[7] Despagnet, 25.

[8] Diss., 27.

they have disregarded the foreign law, which ought to have governed their decision, because of some fancied inconvenience which might result to the citizens of their state. Even with sovereigns it is not so clear that the recognition of foreign laws is merely a matter of comity. They have the power to forbid the admission of the foreign law; but justice would then require that they should forbid the entertaining of any suit upon the foreign contract." Lord Wensleydale in Farton v. Livingstone[1] makes this trenchant criticism. "If we examine more nearly how the principle of comitas gentium was carried out, we see with amazement that it was in truth nowhere properly applied, or at least that in most cases an appeal was made to something quite different from comity. How could any reasonable results be attained with an idea so infinitely vague and unlegal? In fact, one cannot even approximate to a correct decision of the simplest case of private international law upon this principle. Where is the beginning or the end of comity? How can questions of law be solved according to views of policy, which are the most shifting and uncertain things in the world?"

Perhaps a criticism of a slightly different sort might also be made. The doctrine seems really to mean only that in certain cases the sovereign is not prevented by any principle of international law, but only by his own choice, from establishing any rule he pleases for the conflict of laws. In other words, it is an enabling principle rather than one which in any particular case would determine the actual rule of law. And thus we are again forced to conclude that it is impotent to determine when personal law displaces territorial law.[2]

§72. The Doctrine of Story. — Story quoted liberally from Boullenois, Huber, the Voets, and other European authors, but while his language is occasionally moulded by their phraseology, he is the first to develop and consistently hold the doctrine of the complete territorial jurisdiction of law. His doctrine may best be stated in his own words.

"Every nation possesses an exclusive sovereignty and jurisdiction within its own territority. The direct consequence of this

[1] 3 Macq., 497, 548.

[2] Jitta, 104.

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, or 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, vindicate, and secure the wholesome agency of its own laws within its own domains.[1]

"No State or nation can, by its laws, directly affect or bind property out of its own territory, or 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 any nation that other nations should be at liberty to regulate either persons or things within its own territory.[2]

"Every nation has a right to bind its own subjects by its own laws in every other place";[3] but "the obligatory force of such laws cannot extend beyond its own territories. And if such laws are incompatible with the laws of the country where they 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 obligatory force of such laws upon such persons, if they should return to their native country, they can have none in other nations where they reside. They 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. Clauduntur territorio. Nor, indeed, is there, strictly speaking, any difference in this respect whether such laws concern the persons or the property of native subjects. A State has just as much intrinsic right, and no more, to give to its own laws an extraterritorial 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 or power over either. 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, and not of its right to compel or require obedience to such laws on the part of other nations. On

[1] Story, § 18.

[2] Story, § 20.

[3] §21.

the contrary, every nation has an exclusive right to regulate persons and things within its own territory according to its own sovereign will and polity.[1]

"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, depends 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."[2]

"The true foundation on which the administration of international law must rest is, that the rules which are to govern are those which arise from mutual interest and utility, from a sense of the inconveniences which would result from a contrary doctrine, and from a sort of moral necessity to do justice in order that justice may be done to us in return."[3]

§ 73. The Doctrine of Vested Rights. — Instead of the Dutch theory of comity, the common law has worked out indigenously a theory of vested rights, which serves the same purpose, that is, the desire to reach a just result, and is not subject to the objections which can be urged against the doctrine of comity.

As early as the time of Story the courts were already saying that an act or obligation valid by the laws of the place where made was valid everywhere;[4] and that a foreign judgment by a court of competent jurisdiction was conclusive of the right it decided.[5] The fullest statement of this new doctrine was by Sir William Scott in Dalrymple v. Dalrymple:[6] "The cause being entertained in an English court it must be adjudicated according to the principles of English law applicable to such a case. But the only principle applicable to such a case by the law of England is that the validity of Miss Gordon's marriage rights must be tried by reference to the law of the country where, if they exist at all, they had their origin." Story accepted and developed this theory,[7] which from his time has been the accepted theory in the English and American courts.

This doctrine may be stated and explained as follows.

[1] § 22.

[2] § 23.

[3] § 35.

[4] Potter v. Brown, 5 East, 124; Blanchard v. Russell, 13 Mass. 1.

[5] Croudson v. Leonard, 4 Cranch 434.

[6] 2 Hagg. Consis. 54: 2 Beale Cas. 41.

[7] Story, § 451.

Although the law to be applied to the solution of the Conflict of Laws is the territorial law, this does not mean the law by which such rights as those brought in question would be created within the territory. As Westlake says,[1] "The will which imposes a national law within territorial limits does not necessarily decree the application of that law to all the cases there arising, when great inconvenience would result from so doing." The national law which is applied to the solution of conflicts is that portion of the national law which deals with the solution of conflicts. If by the national law the validity of a contract depends upon the law of the place where the contract was made, then that law is applied for determining the validity of a contract made abroad, not because the foreign law has any force in the nation, nor because of any constraint exercised by an international principle, but because the national law determines the question of the validity of a contract by the lex loci contractus. If it were really a case of conflicting laws, and the foreign law prevailed in the case in question, the decision would be handed over bodily to the foreign law. By the national doctrine, the national law provides for a decision according to certain provisions of the foreign law; in the case considered, according to the foreign contract law. The provisions of this law having been proved as a fact, the question is solved by the national law, the foreign factor in the solution — i.e., the foreign contract law — being present as mere fact, one of the facts upon which the decision is to be based.

To explain the territorial theory in other terms, all that has happened outside the territory, including the foreign laws which have in some way or other become involved in the problem, is regarded merely as fact to be considered by the national law in arriving at its decision, and to be given such weight in determining the decision as the national law may choose to give it.

The author summarized this theory in 1902 as follows:[2]

"The topic called ' Conflict of Laws,' deals with the recognition and enforcement of foreign created rights. In the legal sense, all rights must be created by some law. A right is artificial,

[1] Westlake, 21.

[2] Beale, Summary of the Conflict of Laws (in Cases, Vol. iii), §§ 1-5.

not a mere natural fact; no legal right exists by nature. A right is a political, not a social thing; no legal right can be created by the mere will of parties. Law being a general rule to govern future transactions, its method of creating rights is to provide that upon the happening of a certain event a right shall accrue. The law annexes to the event a certain consequence, namely, the creation of a legal right. The creation of a right is therefore conditioned upon the happening of an event. Events which the law acts upon may be of two sorts; acts of human beings, and so-called "acts of God," that is, events in which no human being has a share. Rights generally follow acts of men; though sometimes a right is created as a result solely of an act of God (as lapse of time: accretion). When a right has been created by law, this right itself becomes a fact; and its existence may be a factor in an event which the same or some other law makes the condition of a new right. In other words, a right may be changed by the law that created it, or by any other law having power over it. If no law having power to do so has changed a right, the existing right should everywhere be recognized; since to do so is merely to recognize the existence of a fact."

"A right having been created by the appropriate law, the recognition of its existence should follow everywhere. Thus an act valid where done cannot be called in question anywhere."[l]

§ 74. Dicey. — The foremost representative of this doctrine today, among common-law writers, is Professor Dicey. It could be expressed no more forcibly and succinctly than he has expressed it.

"The nature of a right acquired under the law of any civilized country must be determined in accordance with the law under which the right is acquired."[2]

"The object for which courts exist is to give redress for the infringement of rights. No court intends to confer upon a plaintiff new rights, except in so far as new rights may be necessary to compensate for, or possibly to guard against, the infringement of an existing right. The basis of a plaintiff's claim is that, at the moment of his coming into court, he possesses some right, e. g., a right to the payment of £20, which has been violated; the bringing of an action implies, in short, the existence of a right of action. When, therefore, A applies to an English court to enforce a right acquired in France, he must in general show that, at the moment

[1] Ibid., § 47.

[2] Dicey, 58.

of bringing his action, he possesses a right which is actually acquired under French law, and which he could enforce against the defendant if he sued the defendant in a French court. A complains, for example, of the non-payment of a debt contracted by X in Paris, or seeks damages for an assault committed on him by X in Paris. To bring himself within the principle we are considering, he must show that his right to payment or to damages is actually acquired. He must show that the debt is due under French law, or that the assault is an offence punishable by French tribunals. English law does not, speaking generally, apply to transactions occurring out of England; hence the foundation of A's claim is that he wishes to enforce rights actually obtained in France, and he will, as a rule, fail to make out his case unless he can show that the grievance of which he complains is recognized as such by French law, or, in other words, unless he can show a right to redress recognized by the law of France.

"Whether such a right actually exists, i. e., whether A has an ' acquired right,' is a matter of fact depending upon the law of France and upon the circumstances of the case."[l]

§ 75. The Doctrine of Vested Rights in France: Vareilles-Sommières. — In France the Count de Vareilles-Sommières, Professor at Lille, has, with great originality and force, put forward and supported the doctrine of vested rights, or, as he calls it, of the non-retroactivity of laws. This theory, while it has become the accepted theory in countries governed by the common law, has been given scant attention on the European continent. Even in his pages it is not systematically developed; it is stated almost in passing, and by way of criticism of other theories; yet it is stated forcibly and clearly.

The fundamental truth "is the principle of the reality or more clearly the territoriality of laws, that is to say, the principle by virtue of which every act done on the territory of a state is legitimately governed by the laws of that state: and consequently (subject to exception) receives a force from them which should be recognized and respected in the entire world."[2] "The interest of the state requires as its principle unity of government for all the inhabitants of the territory."[3] "To inhabit a territory is to submit to its sovereignty."[4]

[1] Dicey, 26.

[2] Vareilles-Sommières, i, vi.

[3] V. S., i, 114.

[4] V. S., i, 112, quoting from Rousseau's Contrat social.

"The principal cause of the grave defects in modern systems of private international law," he says,[1] "is that in discussing the question whether a foreigner's acts should be governed by the local or the foreign law, they do not distinguish between acts done by the foreigner in his own country and acts done by him in the state where the problem arises. . . . No one says nor sees that there is an exact and decisive reason for not applying the local law to acts done outside the territory by foreigners, which does not exist when their acts are within the territory; and that reason is the principle of the non-retroactivity of laws." "It is not only with regard to the state on whose territory acts are done that these acts are governed by the law of that state; it is the same with regard to all other states. Acts which are done on the territory of a state in conformity with its laws ought on principle to be regular and in force in the eyes of the entire world. Acts accomplished on the territory of a state contrary to its laws are null everywhere."[2] Thus the French law, he says, should not be applied where its application would refuse recognition to a foreigner's right acquired in the past, or take away a right for the future by reason of a past act which was accomplished according to the law which applied to it, though we may now criticise the conditions of its validity.[3]

§ 76. Bustamante. — One of the most interesting theories based on the doctrine of vested rights is that of Professor Bustamante of the University of Havana. Starting from the proposition that international law limits the jurisdiction, he reaches the logical conclusion that within its jurisdiction a law may create rights which are of world-wide validity.

"The simultaneous existence of sovereignties," he says,[4] "makes it necessary to fix limits in space for their respective legislative jurisdictions. There can exist on the face of the earth no juridical relation without some law, jurisprudence, custom, precedent or principle applicable to it. Since humanity is divided into nations and they are fundamentally equal in the exercise of legislative power, there must exist some principle, precedent, custom, jurisprudence or law, of universal and absolute application to all things and persons. To assert the coexistence of nations is to assert the coexistence of laws, and to suppose coexistent laws is to suppose them limited in application. That the power of the world may not be wasted in strife, science must assign to each its

[1] V. S., i, 183.

[2] V. S., i, 19.

[3] V. S., i, 31.

[4] Bustamante, 37.

sphere of action; and it is fighting with reality to deny the name international to a law which proposes to keep the peace between the laws of different states."

"By legislative jurisdiction is meant not only the power of the positive law to submit to its sway certain groups of juridical relations, but also the power of the state to legislate with respect to them. In other words, we are to deal with a double problem: to fix for the legislator the sphere in which to move, and for the law the limits of its obligatory effect. Some authors take the opposite view, limiting this topic to the study of the territorial application of the law of a given country. I affirm that the legislative power, the origin and fountain of all law, instead of responding to caprice and arbitrary power, must confine itself within determined bounds, out of which it cannot go. In short, when a code transcends the limits of its laws in space, it can do no more than accept a system of private international law, to which its courts must submit, in which men of science may condemn or applaud with absolute freedom.

"Legislative jurisdiction, thus explained, has two classes of limits. Law appears by successive steps within a single nation, but simultaneously throughout the world, divided as it is into many states which in legislative power are equal. In other words, law is born in time and lives in space."

§ 77. Criticisms of the Territorial Theories. — Authors who accept the statutory or the international doctrines have criticised the territorial doctrine as narrow, unjust, and unsocial. Laurent has voiced these criticisms in the most extreme form. "England and the United States," he says,[1] "are still governed by a customary law which is rooted in feudality, an essentially territorial law; the anglo-american judges recognize no law but that of their own country, which amounts almost to denying a private international law." And again:[2] "when one passes from the Italian Code to the common law of England and America, one might think he was leaving the 19th century to return to the middle ages. An English writer (Phillimore) admits that there is a complete opposition between the general law of the European continent and the law which governs England and the United States. Whatever be the diversities in the laws and doctrines of the continent, one finds, at least in principle,

[1] Laurent, i, 15.

[2] Laurent, i, 35.

that there are personal laws there which govern status and capacity, laws inherent in the person which follow it everywhere. England admits only territorial laws. Phillimore is right in deploring this fundamental disagreement; how shall we hope to succeed in bringing in the reign of law in the private relations of peoples when a powerful nation isolates itself in its sovereignty and refuses to recognize any other law than its own?"

The Belgian jurist, who appears to deny the name law to public international law,[1] and whose national law denies access to its courts and even the enjoyment of civil rights to a foreigner, reproaches the common law with being medieval; though the common law accepts as law the doctrines of the law of nations, and extends to the foreigner the right of access to its courts and substantially all other civil rights. Whether the system of private international law, which, as he says, is ill-defined and disputed in almost every rule, and practically incapable of statutory amendment, is superior to a system of national law which guards vested rights at every point, is well-settled in almost every particular, and is capable of easy legislative definition in the few disputed points, will doubtless always remain a matter of opinion; but persons versed in the common law will probably continue to regard an ignorance and provincialism which may properly be called medieval as not confined to either side of the English channel.

Another objection frequently expressed is that the acceptance of the territorial theory means the jeopardizing of rights acquired abroad.[2] This is of course a possibility; one, however, which, as has been seen, the honest advocates of either theory admit. Given a sovereign determined to commit the injustice of refusing effect to foreign rights, the power to ignore them is present. But a sufficient answer to the objection lies in the necessary acceptance, in any civilized law, of the doctrine of vested rights. The objection appears in fact to rest on a confusion due to peculiarities of vocabulary. As will be seen, the same word serves in most European countries to signify both law and a right. A translation into a European language of the statement in English that foreign laws are not recognized as such might

[1] Laurent, i, 14.

[2] Weiss, iii, 9.

naturally be misunderstood as a statement that foreign rights are not recognized.

§ 78. Answer to the Criticisms. — It is recognized as fully by the common law as by the early statutists that to solve all questions by the lex loci would be unreasonable and unjust; and the assertion of the nationalist doctrine does not involve this injustice. For it is part of the doctrine, as will be more fully set forth hereafter, that a right vested under a foreign law will be recognized and (unless forbidden by public policy) enforced. If the national law is a civilized law this will of course be done; and if it is not, the principles of a supposed private international law would not constrain its actions. The binding force of the dictates of justice is not created, and cannot be created, by extra-national constraint. No civilized law, national or international, could be oblivious to the just requirements of recognizing the legally accomplished fact. All civilized countries have the common ideal of justice. In the working out of details for accomplishing justice, they necessarily differ; in particular, the two general systems which between them divide the allegiance of the civilized world, differ in many points; but no one, not a blind partisan of one of them, can say that an alleged "international" private law, framed by those versed in one of the systems, will more certainly accomplish justice than the national laws of countries which accept the other.

The only question, it is obvious, is really this: by what law shall it be determined whether the law of a certain country had the legal power to create an alleged right, since if the right was created all civilized nations should recognize the fact. Certain jurists say it should be determined by an alleged international law, upon the terms of which hardly two of them can agree. Other jurists say that this question should be determined by the law of the country in whose courts it arises.

As an actual fact it will of course be determined in accordance with the law of the forum; since it will be determined by each court in accordance with that court's understanding of the law, no matter by what name the court calls it. Why not recognize and admit the truth?

Whatever may be the not unnatural errors in interpreting the common law by those not bred to it (errors to which the author admits his own liability in attempting to summarize and criticise the European civil law) it is clear that in applying their own law the states governed by the common law are neither ignorant nor neglectful of foreign laws, and that so far from denying they are most insistent in preserving the rights of foreigners.