But oppo from its own, and so unlike anything it is accustomed to, that not only its administrative means, but the legal conceptions which are the foundation of its procedure, and its legal habit of mind (a), so to speak, are wholly unfitted to deal with them. For this reason the English Divorce Court cannot entertain a suit founded on a Mormon marriage. Apart from the question whether such marriages would be regarded by our courts as immoral jure gentium (b), the matrimonial law of England is wholly inapplicable to polygamy, and the attempt to apply it would lead to manifest absurdities (c). Practically these difficulties can hardly arise except as to rights derived from family relations. One can hardly imagine them in the proper region of contracts. Again, there are sundry judicial observations to be found. sition to which go to the further extent of saying that no court will municipal principles enforce anything contrary to the particular views of justice. of law not morality or policy whereon its own municipal jurisprudence is enough. founded. And this doctrine is supported by the unhesitating acceptance of text-writers, which in this department of law must needs count for more than in any other, owing to its comparative poverty in decisive authorities (d). But a test Contract question on this doctrine is to be found in the treatment of for sale of rights arising out of slavery by the courts of a free country: enforced in and for England at least the decision of the Exchequer Chamber in Santos v. Illidge (e) has given such an answer to it as makes the prevailing opinion of the books untenable. Slavery is as repugnant to the principles of English law as anything can well be which is so far admitted by any other civilized system that any serious question of the conflict of laws can arise upon it. slaves Santos " (a) In German one might speak without any strangeness of the Rechtsbewusstsein of the court. (b) A conclusion which would not imply any offence to the Queen's Mahometan subjects, or be incon sistent with our administration of native law in British India. The immemorial institutions of Eastern races are obviously on a different footing altogether from the fantastic and retrograde devices of a degenerate fraction in the West. (c) Hyde v. Hyde & Woodmansee, L. R. 1 P. & D. 130. (d) See the books above referred to, p. 308, n. (a), and Chitty on Contracts, Ch. 4, init. (e) 8 C. B. N. S. 861, 29 L. J. C. P. 348, revg. s. c. in court below, G C. B. N. S. 841, 28 L. J. C. P. 317. Very strangely there is no mention of the case either in Wharton's Conflict of Laws or in the last edition of Story. There is no doubt that neither the status of slavery nor any personal right of the master or duty of the slave incident thereto can exist in England (a), or within the protection of English law (b). But it long remained uncertain how an English court would deal with a contract concerning slaves which was lawful in the country where it was made and to be performed. Passing over earlier and indecisive authorities (c), we find Lord Mansfield assuming that a contract for the sale of a slave may be good here (d). On the other hand Best, J. thought no action "founded upon a right arising out of slavery" would be maintainable in the municipal courts of this country (e). But in Santos v. Illidge (f) a Brazilian sued an English firm trading in Brazil for the non-delivery of slaves under a contract for the sale of them in that country, which was valid by Brazilian law. Both in the C.P. and in the Ex. Ch. the only question discussed was whether the sale was or was not under the circumstances made illegal by the operation of the statutes against slave trading: and in the result the Ex. Ch. held that it was not. It was not even contended that at common law the Court must regard a contract for the sale of slaves as so repugnant to English principles of justice that, wherever made, it could not be enforced in England. Nor can it be suggested that the point was overlooked, for it appears to have been marked for argument: perhaps it is a matter for regret that it was not insisted upon, and an express decision obtained upon it: but as it is, it now seems impossible to say that purely municipal views of right and wrong can prevail against the recognition of a foreign law. Moreover, apart from this decision, the cases in which the dicta relied upon for the wider doctrine have occurred have in fact been almost always determined on considerations of local law, and in particular of the law of the place where the contract was to be performed. Thus in Robinson v. Bland (g) the plaintiff sued (1) upon a Earlier bill of exchange drawn upon England to secure money won at cases (a) Sommersett's ca. 20 St. T. 1. (b) Viz. on board an English ship of war, Forbes v. Cochrane, 2 B. & C. 448. (c) They are collected in Hargrave's argument in Sommersett's case. (l) 20 St. T. 79. (e) Forbes v. Cochrane, 2 B. & C. (f) See note (e) page 310. considered with referer ce to the general doctrine. play in France: (2) for money won at play in France: (3) for money lent for play at the same time and place. As to the bill, it was held to be an English bill; for the contract was to be performed by payment in England, and therefore to be governed by English law. For the money won, it could not have been recovered in a French court of justice (a), and so quacunque via could not be sued for here; but as to the money lent, the loan was lawful in France and therefore recoverable here. Wilmot, J. said that an action could be maintained in some countries by a courtesan for the price of her prostitution, but certainly would not be allowed in England, though the cause of action arose in one of those countries. Probably no such local law now exists. But if it did, and if it were attempted to enforce it in our courts, we could appeal, not to our own municipal notions of morality, but to the Roman law as expressing the common and continuous understanding of civilized nations. Such a bargain is immoral jure gentium. In Quarrier v. Colston (b) it was held that money lent by one English subject to another for gaming in a foreign country where such gaming was not unlawful might be recovered in England. This, as well as the foregoing case, is not inconsistent with the rule that the law of the place of performance is to be followed. It must be taken, no doubt, that the parties contemplated payment in England. Then, what says the law of England? Money lent for an unlawful use cannot be recovered. Then, was this money lent for an unlawful use? That must be determined by the law existing at the time and place at which the money was to be used in play. That law not being shown to prohibit such a use of it, there was no unlawful purpose in the loan, and there was a good cause of action, not merely by the local law (which in fact was not before the Court) (c), but by the law of England. These cases do show, however, that the English law against gaming is not considered to be founded on (a) Nor, under the circumstances, in the marshal's court of honour which then existed; but it seems the Court would in any case have declined to take notice of an extraordinary and extra-legal jurisdiction of that sort. (b) 1 Ph. 147. (c) The local law might con ceivably, without making gaming unlawful, reduce debts for money lent at play to the rank of natural obligations or debts of honour not enforceable by legal process: if the view in the text be correct, the existence of such a law would make no difference in the English Court. such high and general principles of morality that it is to override all foreign laws, or that an English court is to presume gaming to be unlawful by a foreign law (a). In Hope v. Hope (b) an agreement made between a husband and wife, British subjects domiciled in France, provided for two things which made the agreement void in an English court: the collusive conduct of a divorce suit in England, and the abandonment by the husband of the custody of his children. It is worth noting that at the time of the suit the husband was resident in England, and it does not seem clear that he had not recovered an English domicil. Knight Bruce, L. J. put his judgment partly on the ground that an important part at least of the provisions of the document was to be carried into effect in England. Turner, L. J. did say in general terms that a contract must be consistent with the laws and policy of the country where it is sought to be enforced, and he appears to have thought the provision as to the custody of the children. was one that an English court must absolutely refuse to enforce, whether to be performed in England or not, and whether by a domiciled British subject or not. But this is neither required by the decision nor reconcileable with Santos v. Illidge. In Grell v. Levy (c) an agreement was made in France between an English attorney and a French subject that the attorney should recover a debt for the client in England and keep half of it. Our rules against champerty are not known to the French law: but here the agreement was to be performed in England by an officer of an English court (d). Perhaps, indeed, the English law governing the relations and mutual rights of solicitor and client may be regarded as a law of English procedure; and in that character, of course, private arrangements cannot acquire any greater power to vary it by being made abroad (e). (a) Contra Savigny, who thinks laws relating to usury and gaming must be reckoned strictly compulsory (von streng positiver, zwingender Natur)-i.e. must be applied without regard to local law by every Court within their allegiance, but are not to be regarded by any Court outside it. Syst. 8. 276. (b) 8 D. M. G. 731; per Knight Bruce, L. J. at p. 740; per Turner L. J. at p. 743. (c) 16 C. B. N. S. 73. (d) Per Erle, C. J. at p. 79. As to agreements against public interest of State. Conflict of laws in time. 9. Where perfor mance As for agreements contrary to the public interests of the state in whose courts they are sued upon, it is obvious that the courts must refuse to enforce them without considering any foreign law. The like rule applies to the class of agreements in aid of hostilities against a friendly state of which we have already spoken. In practice, however, an agreement of this kind is more likely than not to be unlawful everywhere. Thus an agreement made in New York to raise a loan for the insurgents in Cuba would not be lawful in England; but it would also not be lawful in New York, and for the same reason. It might possibly happen on the other hand that the United States should recognize the Cuban insurgents while they were not recognized by England; and in that case the courts of New York would regard the contract as lawful, but ours would not. It should be borne in mind that the foregoing discussion has nothing to do with the formal validity of contracts, which is governed by other rules (expressed in a general way by the maxim locus regit actum); and also that all rules of private international law depend on practical assumptions as to the conduct to be expected at the hands of civilized legislatures and tribunals. It is in theory perfectly competent to the sovereign. power in any particular state to impose any restrictions, however capricious and absurd, on the action of its own municipal courts; and even to municipal courts, in the absence of any paramount directions, to pay as much or as little regard as they please to any foreign opinion or authority. 9. Where the performance of a contract lawful in its inception is made unlawful by any subsequent event, the contract is thereby dissolved (a). Explanation.-Where the performance is subsequently forbidden by a foreign law, it is deemed to have become not unlawful, unlawful but impossible (b). becomes contract dissolved. This rule does not call for any discussion. It is admitted as certain in Atkinson v. Ritchie (a) and is sufficiently illustrated by the modern case of Esposito v. Bowden (a) of which some account has already been given. It applies to negative as well (a) Atkinson v. Ritchie, 10 East 530; Esposito v. Bowden, p. 258, supra. (b) Barker v. Hodgson, 3 M. & S. 207. |