International Law (Private)

International Law (Private). There is in every territory the law of the land, or territorial law, by which the courts decide all cases that include no circumstances connected with any foreign territory. Often, however, such a circumstance suggests the question whether justice does not require that the law of some other territory shall be applied. Thus the Gretna Green marriages, by which English minors escaped the necessity of banns or the consent of parents or guardians, suggested the question, which was answered in the affirmative, whether even in England their validity ought not to be tried by the law of Scotland, where they were celebrated. Often, again, the question is suggested whether justice does not require that the courts of law should allow some effect to foreign legal proceedings, such as a judgment obtained or litigation pending abroad. Such questions as these are answered by private international law, which, since both laws and legal proceedings are emanations of public authority, may be defined as the department of legal science which is concerned with the effect to be given in the courts of law of any territory to public authority of another territory. The extradition of criminals is also an effect given to foreign public authority, but rather by the government which surrenders the criminal (see Extradition) than by the courts of law, whose only function is to check the surrender so far as the domestic legislation allows them to do so. If private international law were defined as the effect to be given by any mode in one territory to the public authority of another, extradition would be included in it, as is often done; but since the principles governing extradition have little to do with those applicable to other cases, it seems best to treat it as a separate department of law, as is generally done in England.

Comity of Nations.—In the 17th century the Dutch jurists Paul and John Voet and Huber brought forward a view which has since been largely adopted in England and the United States, namely, that the effect given by courts of law to foreign public authority is only due to the comity of nations, but for which every possible question before them would have to be decided by the law of the land. Comity, in that phrase, may only be intended to express the truth that foreign public authority has no inherent effect, without denying that the effect which domestic public authority allows to it is dictated by justice. But the limitations implied in the popular meaning of comity have sometimes been made the ground for deciding questions of private international law in the manner supposed to be most for the interest of litigants belonging to the territory; the phrase is consequently reprobated by most European continental writers, and had better be dropped. The justice on which private international law is founded acknowledges no interest but the general one of intercourse between persons sharing a common civilization in different countries. This interest, as manifesting itself in the domain of law, it seeks to satisfy and it is therefore a true legal justice, rightly classed under law, droit, recht, diritto, derecho and other corresponding terms.

Of the two words which, together with law, make up the title of our subject, private is justified by the fact that its application is between litigants in courts of law, and not between governments except so far as they may be such litigants. International (although interterritorial would be better) is justified by the facts that public authority, which may be internationally foreign, has to be considered, and that governments display a great interest in the question by concluding treaties about it, and occasionally even by suspending diplomatic relations when a court of one country has applied to the subjects of another a rule which the government of the latter deems unjust. But those who think that the primary division of law should be into public and private, and not into international (or interterritorial) and territorial, object to the order in which the three words of the name are usually placed, and call the subject “international private law.”

Conflict of Laws.—This is another name for our subject, and indeed an older one than “private international law,” besides being still much used. But although laws may differ, they cannot properly be said to conflict, unless each can lay a just claim to application in the same circumstances. Now this does not happen. The justice which points out that in certain cases effect ought to be given in one territory to the laws or legal proceedings of another really traces the limits of laws and legal proceedings in space; and the tracing of limits is rather the prevention of conflict than its solution. Savigny has well pointed out that our subject is analogous to the determination of the limits of laws in time, which has to be made when the just application of a new enactment is to be distinguished from the ex post facto application which cannot justly be allowed it. The truth which is aimed at in the phrase “conflict of laws” is that the main problem of our subject is the selection of a law for each given case; but different laws are candidates for selection, not from anything in them as laws, but from differing opinions about the justice of the case. From this selection, again, will be seen the contrast between private international law and attempts at the assimilation of the laws of different countries. To a great extent such assimilation is desirable, especially in mercantile law, but it must always be limited by different views of social order and differences in national habits of thought and action. So far as it is realized, private international law comes to an end with the occasion for selection.

Territory.—This word, as entering into the definition of private international law, does not imply a separate state, whether sovereign or semi-sovereign; it includes every geographical area having a separate legal system, England and Scotland, as well as France or Germany. The case of the Gretna Green marriages illustrates the necessity of rules of private international law between all such, as well as between areas internationally foreign to one another; and indeed the rules are so applied, and in the language of our subject, the area of every separate legal system is foreign to every other such area. Only where a rule contemplates a person as attached more or less permanently to a particular territory, the tie which so attaches him to it may be either nationality or domicile if the territory is a separate state, as France; but it can only be domicile if the territory is combined with others in one state. Nothing but domicile can distinguish British subjects as belonging to England, Scotland or Jamaica, or citizens of the United States as belonging to New York or Pennsylvania.

Legal rules must have relation to the physical and mental characters, and the consequent habits of action, of the populations for which they are intended; they would not satisfy legal justice if they endangered social order as understood and desired by those populations, or if they failed to give due effect to the expectations of parties. This must be true for the rules of private international law as well as for those of any territorial law, and it leads us to ask whether the differences which preclude the universal identity of the latter must not also preclude the existence of the former. The answer is: (1) That where circumstances connected with different territories are concerned, wise rules for the selection of a law will generally give better effect to the expectations of the parties than an exclusive adherence to the territorial law of the court; (2) That the circumstances in which a foreign law is held to apply are exceptional as compared with those in which the domestic law applies, and naturally occur oftenest among the persons and in the affairs having most of a cosmopolitan character, so that the moral shock of applying to them a law founded on a foreign social order is greatly attenuated; (3) That throughout Christendom (to which Japan has now been added for legal purposes) there does exist, though not an identity, yet a considerable similarity in views of social order and prevalent habits of thought and action. Within the same geographical limits there also exists another requisite for the working of a system of private international law, namely, a mutual confidence between countries in the enlightenment and purity of their respective judicatures, to whose proceedings the respect enjoined by the rules of our subject is to be mutually given.

Even within the geographical limits just mentioned there are certain differences on points of social order, especially on marriage or divorce, which have hitherto prevented a complete agreement being attained in the rules of private international law. But no attempt has ever been made to establish any system of the kind as between Christian communities and Mahommedan or other polygamous ones, or between countries enjoying a Christian standard of civilization and those, of which China may be taken as an example, which, whether polygamous or not, do not inspire the necessary confidence in their judicatures. In Turkey and other Eastern countries (in which designation Japan is no longer included for purposes of law) Christians are placed by treaty under the jurisdiction in civil matters of their respective consuls. When in the courts of Christian countries Eastern persons or circumstances connected with Eastern laws have to be dealt with, the peculiar institutions of those countries are not enforced; and while in other respects the judges may be assisted by some of the rules of private international law, especially such as have for their object to carry into effect the reasonable intentions of parties, yet those rules are not applied as parts of an authoritative system.

Rules for the selection of the territorial law to be applied in the different classes of cases, or for the recognition of foreign legal proceedings, have sometimes been made the subject of international treaties, and have often been enacted by territorial legislatures. England possesses a few such enactments, as in the Bills of Exchange Act 1882, and many other countries possess them to a much larger extent in their codes. Where such enactments exist, or where treaty stipulations have been entered into, and the territorial law makes such stipulations binding on the judges, the courts of law must obey and apply them as they must obey and apply any other part of the law of the land. If, as in England, judicial precedents are held to be binding, so that the law of the land consists in part of judge-made law, a similar result is produced; an English court must follow English precedents on the application of foreign law or the refusal to apply it, to the same extent to which it would be bound to follow them on any other point. So far as our matter remains open for a judge, he has, to assist him towards a just decision, the treaties, written laws and judicial precedents of other countries as examples, and a vast literature which has grown up in all Christian countries. That this apparatus is far from having furnished concordant results is due, not only to the divergences on points of social order referred to, but also to the different bases of the legal systems with which the respective governments and writers have been familiar. The legal systems of different countries have been founded on Roman law, feudal law, English common law and still other bases. The arguments of lawyers are affected by the prepossessions thence arising, and they have consequently failed to arrive by their unaided efforts at so much agreement on the rules of private international law as would have been compatible with the conditions and modes of life and action surrounding them. But the general acceptance of a complete body of rules on private international law is a goal which for other countries than England is well within sight by the road of international treaties concluded under the joint direction of professional and non-professional minds.

The most remarkable steps taken in or towards the conclusion of such treaties are those initiated, to its high credit, by the government of the Netherlands. That government first moved in the matter in 1874, and has succeeded in assembling at the Hague the official representatives of nearly all European powers in conferences held in 1893, 1894, 1900 and 1904. At these conferences rules on many branches of private international law were agreed on for submission to the respective governments, which has led to conventions, one of the 14th of November 1896, three of the 12th of June 1902, and four of the 19th of July 1905, regulating the selection of the laws for determining the validity of marriage and of contracts made on the occasion of marriage, their effects on property and on the status of the wife and children, divorce and judicial separation, the guardianship of minors and of interdicted persons, the validity of testamentary dispositions and the rules of intestate succession, and many points of judicial procedure. These conventions may be found at length in the Revue de droit international et de legislation comparée, t. 28, pp. 574-579; 2e série, t. 4, pp. 485-500; and 2e série, t. 7, pp. 646-678. A draft relating to bankruptcy was also prepared at the conference of 1904, but was intended to serve, not as a general convention, but as the base of separate conventions to be concluded between particular states. The extent to which the continent has become united with regard to private international law appears from the fact that France, Germany, Italy, the Netherlands, Portugal, Rumania and Sweden are parties to all the conventions—that Luxemburg, Russia and Spain are parties to those relating to judicial procedure—and that all the ten except Russia, but with the addition of Austria, Belgium and Switzerland, are parties to those on the validity of marriage, divorce and judicial separation, and the guardianship of minors; while all remain open to adhesion by other powers. It is much to be regretted that the British government has declined all invitations to take part in this great international work. The fact must in part be ascribed to the hindrance which the difference between the English common law and the Roman law places, even for lawyers, in the way of joint action with the continent, and in part to the necessity that the rules laid down in any convention should be enacted for the United Kingdom by parliament, the leaders of which belonging to either party take no interest in any such matters.

Next in importance among combined official efforts should be mentioned the congress of seven South American states at Montevideo in 1888-1889, which on many branches of private international law drew up rules intended for adoption by treaty on that continent.

Nationality: Domicile.—Coming now to the particular rules of private international law which are received in England, or have been most widely received elsewhere, the most obvious cases which present themselves for admitting foreign circumstances to influence the decision of a judge are those in which rights are so connected with the person of an individual that the justice of deciding on them by a law having relation to his person speaks almost for itself. Hence arises the notion of a personal law, which must be that either of the person’s political nationality or of his domicile, these being the only circumstances that for the time being are fixed for the individual, irrespectively of the spot where he may happen to be, and of the transaction in which he may happen to engage. We have seen in the article on Domicile what is the legal meaning of that term, how its existence is ascertained, that in and long after the middle ages it was the usual criterion of the personal law, and that in modern times political nationality has largely replaced it as such criterion on the continent of Europe. Thus as well by the conventions mentioned as by the codes of many states—France, Italy and Germany among the number—the capacity and status of persons is now governed by the law of their political nationality. In Latin America the criterion of the personal law is still generally held to be domicile, which is among the reasons why the South American states prefer to pursue the codification of private international law independently of European conferences and conventions.

The English courts were slow to recognize a personal law at all and as late as Lord Eldon’s time they held that the competency of a person to contract depended on the law of the place where the contract was made. Their decisions have since come into line with the continental decisions so far as to make capacity and status depend on a personal law, but not so far as to make nationality its criterion. Hence in England, and in a minority of European continental countries, of which Denmark is an example, the capacity of a party to enter into a contract, whether it be disputed on the ground of his age, or, in the case of the contract of marriage, on the ground of his consanguinity or affinity with the other party, will be decided by the law of his domicile. Guardians, curators and committees of foreign minors or lunatics, deriving their authority from the law or jurisdiction of the latter’s domicile or nationality, can sue and give receipts for their personal property. A court will not decree the divorce of persons not domiciled within its jurisdiction, and it will recognize foreign divorces if, and only if, they have been decreed by a jurisdiction to which the parties were subject by domicile or nationality. And the legitimation of a child by the subsequent marriage of its parents will be held to depend on the law of its father’s domicile or nationality. But the reference to the place of contract, carried to North America with the rest of the English jurisprudence of that date, still maintains in the courts of the United States a struggle with the doctrine of personal law as governing capacity and status.

Here must be noticed a difficulty which arises about the application of any foreign law to the capacity for contracting. It will be understood by the German provision intended to meet it, namely, that “if a foreigner enters in Germany into a transaction for which he is incapable or has only a restricted capacity, he is to be treated for that transaction as being so far capable as he would be by the German legislation. This, however, does not apply to transactions with regard to rights of family or of succession, or to those disposing of foreign immovable property” (Art. 7 of the statute enacting the code). In a spirit similar to that which dictated the German enactment, the French courts have not generally allowed a Frenchman to suffer from the incapacity, by his personal law, of a foreigner who contracts in France, when the foreigner would have been capable by French law, and the Frenchman was in good faith and without great imprudence ignorant of his incapacity. Lately a disposition has been shown to limit this protection of nationals to the case in which the foreigner has been guilty of fraud. English courts usually hold themselves to be more stringently bound by rules, whether those enacted by parliament or those adopted for themselves; and if they should continue to profess the doctrine that capacity depends on the law of the domicile, it is not probable that they will deem themselves entitled to make exceptions for the protection of persons contracting in England with foreigners not enjoying such capacity. The point furnishes an illustration of the fact that to deal satisfactorily with so complex a subject as private international law requires the assistance of the legislature, which again cannot be given with full utility unless uniform provisions, to be enacted in different countries, are settled by international convention.

Another ground for the application of a personal law is furnished by the cases in which masses of property and rights have to be dealt with collectively, by reason of their being grouped around persons. The principal instances of that kind are when it is necessary to determine the validity and operation of a marriage settlement or contract, or the effect of marriage on the property of the husband and wife in the absence of any express settlement or contract, and when property passes on death, either by a will or by intestate succession.

Lex situs, lex loci actus, lex loci contractus, lex fori.—The law of the territory in which they are situate (lex situs) is generally applied to the property in particular things, whether movable or immovable, so far as they are not included in any mass grouped round a person; in England, therefore, always to immovables. In drawing up documents and conducting ceremonies public functionaries must necessarily follow the law from which they derive their authority, wherefore the law of the place where any public document is entered into, or any public ceremony performed (lex loci actus), is the only one that can be followed in its external form. This maxim applies to the forms of notarial acts, and to that of marriage celebrated with the official concurrence of clergymen, registrars and so forth. And since documents and ceremonies entered into without official concurrence are rarer on the continent of Europe than in England, the inevitableness of the form of the lex actus, when such concurrence is had, has generally led to that form being also held sufficient whenever the affair comes to be inquired into later. Nor in England has the sufficiency of the form of the lex loci actus for the celebration of marriage ever been doubted, but a will made by a notarial act in accordance with that law was not admitted. Disregarding the distinction between external form and internal validity and operation, a will of English land could not take effect unless made in English form (that is, since the Wills Act of 1837, with two witnesses), and a will of personal estate could not be admitted in England to probate unless made in the form of the law of the testator’s last domicile. But now, by Lord Kingsdown’s Act, passed in 1861, there are given for wills of personal property made by British subjects, besides the form of their last domicile, three alternative forms, namely, the form of the place of making the will, that of the testator’s domicile at the time when it was made, and that of the part of the British dominions where he had his domicile of origin—only the first of the three, however, being offered when the will is made in the United Kingdom; and no will is to be revoked or invalidated by a change of the testator’s domicile after making it.

Renvoi.—We will now suppose that the rules of private international law, as practised in any country (A), refer a case arising in its courts to the law of another country (B), as being that of the domicile or nationality of a person, and that those rules as practised in (B) in turn refer (renvoient) the same case to the law of (A), as being that of the nationality or domicile or perhaps of the locus actus: what are the courts of (A) to decide? This question, which involves nothing less than that of the meaning in which the reference to a law is to be understood in our subject, has during recent years excited great discussion both among the jurists and in the courts of all nations. It is answered by the English courts to the effect that (B) by its reference back (renvoi) has disclaimed the control of the case, which must therefore be decided without regard to (B)’s particular laws. See In re Trufort, 36 Ch. D. 600, and In re Johnson, 1903, 1 Ch. 821. This principle practically gives efficacy to the renvoi, and coincides with the express provisions both of the above-mentioned convention of the 12th of June 1902, Art. 1, as to the right of contracting marriage, and of the statute enacting the German code, Art. 27, as to capacity generally. The English law agrees in opinion, and is supported by a numerical preponderance of the judicial precedents in France and Belgium; but it must be admitted that a numerical preponderance of the jurists who have declared themselves hold that the courts of (A) ought to apply the particular laws of (B).

Public Order.—It must not be supposed that the law of the land, the proper territorial law of the court which has to deal with a case in which foreign circumstances arise, always gives way to the foreign law pointed out by the general maxims which even that particular court accepts. All rules for the application of foreign laws are subject to an exception commonly called that of public order, i.e. where such application would interfere with essential principles of morality or policy received in the territory. This reservation is usually made in general terms where legislation on private international law is attempted, as in Article 6 of the Code Napoleon, and preliminary Article 12 of the Italian code; but the courts have to administer it, as they have also in England and other countries where it rests only on judicial practice, and the greater or less extent given to it is one of the causes of the uncertainty and want of uniformity in our subject. One example often quoted is the refusal of the courts in all Christian countries to give effect to polygamous marriage, but this case goes deeper still, for none of the countries in which polygamous marriage exists is allowed to enter at all into the communion of private international law. All, so far as Great Britain has settled legal relations with them, are among those in which British subjects live under consular protection and jurisdiction, or (in Egypt) under that of the Mixed Courts. A better instance is afforded by the refusal of courts, normally within the pale of European legal communion, to recognize divorce as dissolving a marriage, notwithstanding that it has been decreed under the personal law. As another instance, there can be little doubt that an incapacity to marry imposed by the personal law in virtue of religious vows or orders would be disregarded by the English courts in the case of a person marrying in England. Again, it is established in England that damages cannot be recovered for a tort unless the act complained of was a wrong both by the law of the country where it was done and by the law of England; and Article 12 of the statute enacting the German code is in accordance with that doctrine. Now the law of the country where the act is done would naturally give the standard for measuring its legal consequences, and it seems to be due to the connexion which laws qualifying acts as wrongs have with public order that respect for that law is tempered by respect for the law of the countries in which it is invoked; but Article 8 of the Belgian code refers the liability for torts to the former law without any restriction.

Foreign Judgments.—In the rules which have passed before us in the foregoing general review it is easy to perceive a leading motive—that of securing, so far as public order allows, the certainty and stability both of personal and of business relations in the international or interterritorial intercourse which has always accompanied civilization, but is now especially frequent and extensive. It has been attempted to erect this motive into a guiding principle of law, laying down that rights once accrued in any territory, or sometimes, it is said, by virtue of any territorial law, are to be recognized and enforced, subject to the requirements of public order, in any other territory in which they may be invoked before a court of justice. From this, which may be called the principle of the acceptance of foreign rights, it is claimed that the rules of private international law are to be deduced, and that by their consonance with it any such rules are to be tested when proposed. The difficulties of the subject, however, do not admit of being unlocked by so simple a key. They meet us again when we inquire in what territory, or by virtue of what territorial law, a particular alleged right has accrued. Persons belonging by domicile or nationality to A enter in B into a contract to be performed in C; where and by virtue of what law does either acquire a right against the other? Is it to be in or by the law of their homes, where they are normally, though not always necessarily, to be sued? Or of the country where they contract, which for various purposes, as those of police, but not for all purposes, has the control of them when they contract? Or of the country where their contract is to be performed, under a similar control by which, perhaps extending to the very acts of performance, they or their agents may be brought by the operation of their contract? Evidently we cannot apply the principle to guide us in our choice of a law till the very problem which that choice presents has first been solved. There is, however, one case in which the principle of the acceptance of foreign rights leads to a conclusion, namely, where the right has been declared by the judgment of a competent court, which may have been given in an ordinary case, presenting no question of private international law, but in which, if such a question arose, it has been solved by choosing the law and basing the judgment on it. The rule in England and in many other countries as to foreign judgments is that the judgments of competent courts in other territories (foreign in the sense of civil law, whether politically foreign or not) are to be enforced without reopening the merits of the questions disposed of by them. In some countries, however, a foreign judgment is examinable on its merits before being enforced. This was formerly the unquestioned rule in France, though the practice there seems to be now turning the other way. In the system adopted in England everything turns on the competence. For judgments in rem, declaring or disposing of the property in a thing, the test of competence is that the thing, whether movable or immovable, was within the territory of the court. Judgments which declare the status of a person, as with regard to marriage or majority, are competent if the person was subject to the jurisdiction by nationality or domicile. The property or the status is treated as being what has been so declared or decreed. For judgments in personam, decreeing the payment of a certain sum, the test of competence for the present purpose is again that the person against whom it was pronounced was subject to the jurisdiction by nationality or domicile; the judgment may then be sued on as giving of itself a good title to the sum decreed by it to be paid. For domestic purposes the competence may exist on quite other grounds. By its own territorial law a court may be authorized to entertain a suit in personam because the plaintiff possesses its nationality, as by Article 14 of the code Napoleon, or because the contract sued on was made or was to be performed in the territory, and so forth. But judgments based on these grounds will not be enforceable outside the territory. Here we touch the root principles of our subject. The distinction between domestic and international grounds of competence can only be explained by the history of law, and we come in sight of the fact that the rules of private international law rest finally on conventions which could not have existed if the civilization of different countries had not so much that was common in its origin and in the course which it has followed, but which suit the life of those countries just because that life is itself another outcome of those common antecedents.

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