2.
When this happens to be the case, it becomes necessary to decide which
law is to be obeyed. This subject has occupied the attention and talents
of some of the most learned jurists, and their labors are comprised in
many volumes. A few general rules have been adopted on this subject,
which will here be noticed.
3.
- 1. Every nation possesses an exclusive sovereignty and jurisdiction
within its own territory. The laws of every state, therefore, affect and
bind directly all property, whether real or personal, within its
territory; and all persons who are resident within it, whether citizens
or aliens, natives or foreigners; and also all contracts made, and acts
done within it. Vide Lex Loci contractus; Henry, For. Law, part 1, c. 1,
1; Cowp. It. 208; 2 Hag. C. R. 383. It is proper, however, to observe,
that ambassadors and other public ministers, while in the territory of
the state to, which they are delegates, are exempt from the local
jurisdiction. Vide Ambassador. And the persons composing a foreign army,
or fleet,
marching through, or stationed in the territory of another state, with whom the foreign nation is in amity, are also exempt from the civil and criminal jurisdiction of the place. Wheat. Intern. Law, part 2, c. 2, 10; Casaregis, Disc. 136-174 vide 7 Cranch, R. 116.
marching through, or stationed in the territory of another state, with whom the foreign nation is in amity, are also exempt from the civil and criminal jurisdiction of the place. Wheat. Intern. Law, part 2, c. 2, 10; Casaregis, Disc. 136-174 vide 7 Cranch, R. 116.
4.
Possessing exclusive authority, with the above qualification, a state
may regulate the manner and circumstances, under which property, whether
real or personal, in possession or in action, within it shall be held,
transmitted or transferred, by sale, barter, or bequest, or recovered or
enforced; the condition, capacity, and state of all persons within it
the validity of contracts and other acts done there; the resulting
rights and duties growing out of these contracts and acts; and the
remedies and modes of administering justice in all cases. Story, Confl.
of Laws, 18; Vattel, B. 2, c. 7, 84, 85; Wheat. Intern. Law, part 1, c.
2, 5.
5.
- 2. A state or nation cannot, by its laws, directly affect or bind
property out of its own territory, or persons not resident therein,
whether they are natural born or naturalized citizens or subjects, or
others. This result flows from the principle that each sovereignty is
perfectly independent. 13 Mass. R. 4. To this general rule there appears
to be an exception, which is this, that a nation has a right to bind
its own citizens or subjects by its own laws in every place; but this
exception is not to be adopted without some qualification. Story, Confl.
of Laws, 21; Wheat. Intern. Law, part 2, c. 2, 7.
6.
- 3. Whatever force and obligation the laws of one, country have in
another, depends 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. Huberus, lib. 1, t. 3, 2. When a
statute, or the unwritten or common law of the country forbids the
recognition of the foreign law, the latter is of no force whatever. When
both are silent, then the question arises, which of the conflicting
laws is to have effect. Whether the one or the other shall be the rule
of decision must necessarily depend on a variety of circumstances, which
cannot be reduced to any certain rule. No nation will suffer the laws
of another to interfere with her own, to the injury of her own citizens;
and whether they do or not, must depend on the condition of the country
in which the law is sought to be enforced, the particular state of her
legislation, her policy, and the character of her institutions. 2 Mart.
Lo. Rep. N. S. 606. In the conflict of laws, it must often be a matter
of doubt which should prevail; and, whenever a doubt does exist, the
court which decides, will prefer the law of its own country to that of
the stranger. 17 Mart. Lo. R. 569, 595, 596. Vide, generally, Story,
Confl. of Laws; Burge, Confl. of Laws; Liverm. on Contr. of Laws;
Foelix, Droit Intern.; Huberus, De Conflictu Leguin; Hertius, de
Collisions Legum; Boullenois, Traits de Ia personnalite' et de la
realite de lois, coutumes et statuts, par forme d'observations;
Boullenois, Dissertations sur des questions qui naissent de la
contrariete des lois, et des coutumes.
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