nations have fostered principles of law familiar in their own courts, however alien to the practice of all other countries, there have hitherto been made only very imperfect attempts at uniformity, either of principle or practice, in this respect. It is probable that an increasingly clear apprehension of the logical relations of the different branches of law touching ownership, contract, family life, or crime, will produce the effect of assimilating the substance, as well as the form, of the rules of law forming the so-called "Private International Law of different countries." 1

As the practice of private international law is based upon the comity of nations, it is obvious that it cannot antedate in its origin the recognition of comity as a general international obligation. The remote origin of the practice, however, is much more ancient, and can be traced to the jus gentium of the Romans, which was, in substance, a formal recognition of the principles involved in private international law by the greatest state that has ever existed. The Roman civil law applied to Roman citizens alone; the jus gentium, or law of nations, was made up of those principles of law which were common to all the nations of which they had any authentic knowledge. This system was administered by the Roman courts during the existence of the empire, and was revived, by Grotius, more than a thousand years after the downfall of the state in which it had originated, for the purpose of furnishing a logical and legal basis for the new science of international law."

The rules of domicile, which lie at the base of the subject, were the first to receive attention, and to be made the subject of judicial decision. This was especially true of their application by prize-courts in ascertaining the domicile of owners of captured vessels, with a view to determining the nationality, and so the liability to capture and condemnation, of their

1 Amos, Science of Law, pp. 26, 27: Hall, § 10, p. 54; IV Phillimore, chap. i.; Wharton, Com. on Amer. Law, § 252.

2

IV Phillimore, chap. i. §§ 1, 913; Maine, Int. Law, pp. 20, 2628; Bar, § 2.

property. Aside from this, however, but little attention was paid to the subject, as a matter of public law, until after the middle of the seventeenth century, when the rules regarding the treatment of aliens began to be relaxed in severity, and the alien class began to receive protection in their personal and property rights. Its progress has not been rapid at any time, though an increased interest in it has been manifested since the beginning of the present century, and all states that are parties to international law now recognize its rules, and, to a greater or less extent, permit their courts to apply them in the decision of cases arising within their jurisdiction. Their practice is far from uniform, however, some states being slow to recognize their binding force, while others constantly seek to extend their field of operation, at times going so far as to negotiate treaties for that purpose. The tendency of all modern states is in the same direction, though some move more rapidly than others.'

3. Subjects Treated of in Private International Law. rules of private international law have chiefly to do

The

(1.) With the legal status of aliens, and with their capacity to do certain acts in a state, not in accordance with its municipal law, but in accordance with the municipal law of another state. (2.) With questions arising as to the validity of foreign marriages or divorce.

(3.) With similar questions arising as to the validity or binding force of contracts or agreements.

(4.) With questions connected with the ownership, or transfer, of land and goods.

(5.) With foreign judgments and bankruptcies.'

Limitations upon the Practice of Private International Law. The courts of a state, in applying the rules of private international law in any one of the foregoing cases, cannot give effect to, or apply, a foreign law which imposes a penalty,

1IV Phillimore, §§ 1-21; Story, Conflict of Laws, §§ 1-20; Wharton, Conflict of Laws, §§ 979-1006; Bar, $$ I-27.

Amos, Science of Law, p. 319; IV Phillimore, chap. ii,

or is repugnant to the municipal law, or moral standards, or public policy of their own state.' In accordance with this principle the following exceptions are now generally recognized: (1.) Distinctions of rank, or caste, have no extra-territorial effect."

(2.) Laws destructive of capacity are disfavored internationally; those protective of capacity are favored. To the former class would belong laws recognizing slavery, or imposing disabilities on account of religious belief."

(3.) Property, whether real or personal, is subject to the lex rei sitæ.

(4). In all matters relating to a decedent's estate, except as to realty, the law of the last domicile of the decedent is to prevail.

(5.) Contracts, as a general rule, are to be governed by the law of the place of performance.

(6.) Process, as a general rule, is to be governed by the lex fori.

(7.) Persons are, in general, subject to the law of their domicile; "but, when visiting other lands, they can only claim to be invested with the law of such domicile to the extent which

1 Wharton, Com. on Amer. Law, $253; Ibid. Conflict of Laws, § 19; IV Phillimore, pp. 12-18. For this reason courts will not recognize the existence of slavery or polygamy, or enforce contracts which recognize slaves as property; nor will a foreigner be permitted to inflict chastisement, or practise cruelty, upon a member of his family or suite because such practices are warranted by the laws of his state or country. -IV Phillimore, pp. 16, 17; Wharton, Conflict of Laws. §§ 101-105. See also Schulze-Berge vs. the Guildhall, 58 Fed. Rep. 796; Brown vs. Amer. Finance Co. 31 Ibid. 516.

2 Wharton, Conflict of Laws, §§ 101-105, 109; Story, Conflict of Laws, §§ 96, 104; IV Phillimore, §§ 12-25.

United States vs. Crosby, 7 Cranch, 115; Clark vs. Graham, 6 Wheaton, 577; Oakey vs. Bennett, II Howard, 33; Christian Union vs. Yount, 101 United States, 352; IV Phillimore, pp. 427-457; Story, $$ 374-463; Wharton, §§ 297-311.

IV Phillimore, p. 673; Wharton, Conflict of Laws, § 560; Ibid. Com. on Amer. Law, § 339; Story, chap. xii.

'Wharton, Com. on Amer. Law, §§ 314-322; IV Phillimore, pp. 531541; Story, §§ 279-282; Wharton, Conflict of Laws, §§ 397a-401 p.

'Wharton, Conflict of Laws, §§ 704-752; IV Phillimore, p. 706; Story, $$ 530-580.

is consistent with the common law of Christendom, which is the foundation of private international law." Hence "a polygamous or incestuous marriage, even though sanctioned by a foreign state, and contracted within its borders, has no exterritorial force. Foreign judgments of divorce, to be respected, must be rendered by courts having jurisdiction according to the judgments of private international law. Foreign incapacity, arising from minority or subjection to tutelage, will only be recognized when there is something in the person so subjected to put persons dealing with him on inquiry.'

991

Effect of Foreign Judgments. A foreign judgment is one obtained in the courts of a foreign state, the recognition and enforcement of which is asked in the courts of the state in which the defendant is resident, or subject to legal process. The great majority of states give effect to a foreign judgment in all cases in which the following conditions have been fulfilled:

(1.) The tribunal which pronounced the judgment must have been competent, according to the law of the state to which it belonged, to decide upon the matter adjudicated upon.

(2.) The jurisdiction must have been complete both as to subject-matter and over the parties to the suit.

(3.) The foreigner who was a party must have been fairly heard before the tribunal, according to the laws of the state, and on an equality, in every respect, including the right of appeal, with a native subject.

(4.) The tribunal must have decided upon the very subject-matter which it is attempted to litigate upon, and the decision must have been final, or made by the court of last resort.'

Condition of Reciprocity. To these conditions some nations add another, that of reciprocity. If these conditions are

'Wharton, Conflict of Laws, § 19; Story, §§ 584-618; Wharton, ConIV Phillimore, pp. 302–312. flict of Laws, §§ 792-796; Bar, § 126.

IV Phillimore, pp. 729, 730;

fulfilled they will constitute a valid ground upon which to base a plea in bar of a second litigation, and, if properly authenticated, the foreign judgment will be executed by them as if it were their own.'

Foreign Judgments, why Produced before the Courts of a State. Whenever a foreign judgment is brought to the judicial notice of the courts of a state it is with a view of obtaining one of two results:

(1.) "It may be pleaded in bar.

(2.) "It may be given effect to, and executed in the same manner as a domestic judgment.'

Conditions under which they are Given Effect. In accordance with the practice of most states of Christendom, foreign judgments are permitted to have effect only in the following cases:

(1.) With the consent of the state in which execution is desired.

(2.) By the authority and order of its tribunals.

(3.) When it contains no provisions or order contrary to the public morals or policy of the state in which execution of it is sought.'

Practice of States in the Matter of Foreign Judgments. Although there is considerable variance in the policy of states as to the effect given in each to foreign judgments, most of them are susceptible of classification under one of three heads:

(1.) "Those which recognize the rule of reciprocity.

(2.) Those which refuse to recognize foreign judgments. (3.) "Of England and the United States of North America, which recognize, without regard to the principle of reciprocity, the authority of a competent foreign judgment.”

' IV Phillimore, pp. 730, 731. IV Phillimore, p. 729: I De Martens, liv. iii. chap. iii. § 94.

'IV Phillimore, p. 728; I De

Martens, §§ 94, 95; Story, §§ 815823.

IV Phillimore, pp. 731, 732.