COMMENTARIES ON COLONIAL AND FOREIGN LAWS, &c. &c. PART I. CHAPTER I. THE CONFLICT OF LAWS.-HOW IT ARISES.-STATE OF The municipal law.-The limits of its authority.-In what manner the subjects of one state are affected by the laws of foreign states.-The conflict of laws.-The necessity of selecting some other law than that of the country in which a claim is contested.—A principle adapted to such a conflict not to be traced in the early history of jurisprudence.— Doubted if it prevailed in the civil law. The various coutumes of France gave occasion for its application.-Subsequently recognized in other states of Europe.-Early writers, Bartholus, Baldus, D'Argentré, Burgundus, Hertius, P. Voet, Froland, Boullenois.-The great merit of the latter. Their classification of laws.-Their controversy in assigning the different laws to their respective classes. Object of this classification attainable by considering the different subjects which belong to each class.-Personal laws.-Real laws.-Mixed laws.-Definitions of each.-General principles.-The only laws between which there can be a conflict.-Manner of treating the subjects to which they refer, with a view of ascertaining the appropriate law. It is a fundamental principle essential to the sove-. reignty of every independent state, that no municipal law, whatever be its nature or object, should, proprio vigore, extend beyond the territory of that state by which it has been established. The limits of its operation are those of the authority by which it is imposed. The maxim of the civil law, "Extra territorium jus dicenti impune paretur," as accurately defines the limits by which the obligatory force of any municipal law is circumscribed, as it expressed those of a local magistrate under the Roman law, "De droit étroit, toutes les loix, que fait un souverain, n'ont force et autorité que dans l'étendue de sa domination." (a) "Non posse majis poni legem rebus alienis, quam personæ non subditæ.' But the obligatory force of the laws of a foreign independent state, is not to be understood as confined to those only who are its subjects by birth, or naturalization. Each state possesses the power of regulating the enjoyment and transfer of property situated in its territory, of defining the civil rights and capacities of those who may become its subjects by birth, by acquired domicile, or even temporary residence; of pronouncing what may be the subjects of contract entered into within its territory, the forms and solemnities with which they shall be executed, and the legal import which they shall bear; and of establishing the forms and proceedings by which its judicial tribunals may entertain, investigate, and adjudicate on claims, and permit the execution within its own territory of judgments obtained in another country. Thus, in effect, the municipal law of every country has an operation beyond the limits of its own territory. It affects persons who are not its subjects, either by birth or naturalization, either in respect of their being possessed of property within its territory, or from their having acquired a domicile or temporary residence, or from their having entered into a contract there, or from their being parties to a suit before its judicial tribunals. The laws of these several countries may be at variance with each other, and with the law of the country where, by the aid of its judicial tribunals, a person may seek to enforce a right, which he has (a) Boullenois, Traité de la Personnalité, et de la Réalité des Loix, tom. 1, p. 4. D'Argentré, art. 218, p. 604. Burgundus, Tr. 1, n. 24. acquired by his conformity to one or the other of these laws. Notwithstanding the variety of laws and usages which existed amongst the states of remote antiquity, there are no traces of any principles of jurisprudence, by which it could be determined, whether any and what other law should be admitted than that of the country in which the right was adjudicated. The occurrence of such a conflict of laws does not seem to have been contemplated. Indeed, from the feeling with which those states regarded each other, respect for the laws or institutions of each other was not likely to form a principle of their jurisprudence. Even under the Roman empire, although many of the nations subject to its dominion were allowed to retain their own usages and laws, it may be doubted whether the latter were ever permitted to prevail, if they came in competition with the laws of the empire. A partial submission to the laws of a conquered and dependent people would have been incompatible with the lofty privileges of a Roman citizen. In jure Romano non est mirum nihil hac de re extare, cum populi Rom. per omnes orbis partes diffusum et æquabili jure gubernatum imperium, conflictui diversarum legum non æque potuerit esse subjectum.” (a) The few passages in the Digest, which have even a remote relation to this subject, seem to confirm this opinion. On the dissolution of that mighty empire, when its provinces were severed from it, new states were formed, independent of each other, which, owing no common allegiance to any supreme power, were governed by their own separate and peculiar laws. If we could penetrate that "thick veil," which Sismondi says "at certain periods in the history of the world appears to overspread the earth," and which certainly obscures the early history of the jurisprudence of Europe, it is not probable we should discover that any of (a) 2 Huber. lib. 1, tit. 3, p. 538. these states had adopted other principles of legislation than those which applied to the dealings of its own subjects with each other. Principles of jurisprudence, which might regulate their dealings with the subjects of another state, would not be admitted, until necessity required their establishment. That necessity could not be felt until such an extended intercourse had taken place, as would give them a common interest in mutually respecting each others laws. In France, from the variety of coutumes prevailing in her provinces at variance with each other, and with the general law of the kingdom, there was frequently a conflict between them. The necessity of adopting another custom than that which was the law of the province where the adjudication took place was of frequent occurrence. The influence of Christianity, the spirit of commercial enterprise, and the advance in civilization and refinement, not only extended the intercourse between the independent states of Europe, but supplied them with powerful motives for recognizing and respecting each others laws. Although this principle of international jurisprudence may have been first suggested by the necessities, and intended to promote the objects of commercial dealing, and may therefore have first appeared in the character and form of commercial ordinances; yet every state discovered that it consulted the interests of its own subjects, no less than the dictates of justice, by extending this principle to the other transactions in which they might be engaged with the subjects of foreign states. In many instances, its admission could not be refused without flagrant injustice. Thus, if instead of the law under which parties had entered into a contract, some other law, which neither of them had contemplated, were to be applied, either the one might incur an obligation not incident to it, or the other might be relieved from an obligation which he |