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THE MOTIVK FOE THE TEIBUNAL. 71
whom they act judicially—the rector imperii—to make it. When that will has been ascertained, it is immaterial what may have been the motive operating on the supreme power or the sovereign source of the national law. There is, therefore, in this maxim, nothing making comity a judicial rule—or something, the extent and limits of which are to be judged of by the judicial tribunal.
§ 80. It being, however, assumed that the actual legislative and juridical practice of nations is one of the criteria by which the tribunals of any one nation are to ascertain that law of natural reason which they are juridically to apply as the positive law of the state—the fact that different nations, (or the civilized nations of Europe and America,) have severally sanctioned this international allowance, so far as not prejudicial to the potestas &ndjus of the state, or of its citizens, may be taken to be an authority for the tribunal' to make this international allowance in matters of private law, when not contrary to the potestas and jus of the state, or of its citizens; quatenus nihil potestati aut juri alterius imperantis ejusque civium prrejudicetur. These words are translated by Story: Conf. of L., § 29,—" so far as they do not prejudice the powers or rights of other governments or of their citizens." The word juri here translated "rights of," &c, might more correctly be translated law; or, better— law and right: the word jus having the sense not only of a right but also of a law; in the sense of a rule of right, a jural law—that which must be judicially recognized as right, as well as law.' But then it is evident that the tribunal has nothing to
11 Burge Comm., p. 5. "Hence, by that which is sometimes called the comitas gentium, but which is at other times and more properly called the common necessity or the mutual advantage of nations, la nkttritf du Men public et general det nations, it is established as a principle of international jurisprudence that effect should be given to the laws of another state whenever the rights of a litigant before its tribunals are derived from, or are dependent on, those laws, and when such recognition is not prejudicial to its own interests or the rights of its own subjects."
Judge Bradford, in Ex parte Dawson, 3 Bradford's R., 135, having reference to the action of an English judicial tribunal and its obligation to recognize the effects of the law of the State of New York in the case, says, citing the above passage: "It may also be safely laid down that from comity and considerations of mutual interest, foreign states recognize and give effect almost universally to those laws of the domicil," &c., "respect being had in this particular to the sentence of the appropriate tribunal in the place of domicil."
* The meaning of the word jut, in Roman jurisprudence, will be particularly examined in a succeeding chapter.
72 FOBCE OF THE PRACTICE OF STATES.
do with the comity or any other motive which may be supposed to have acted on those states, or which may or may not, for the future, influence the sovereign, rector imperii, whose judicial function it exercises. It is enough for the tribunal that such has been the practice of nations. Another statement of this axiom by Huber, in the treatise, Jus publicum Universale, Lib. 3, cap. 8, § 7, is also cited by writers on international law. "Summas potestates cuj usque reipublicse indulgere sibimutuo, ut jura legesque aliorumin aliarum territoriis effectum habeant, quatenus sine prsejudicio indulgentium fieri potest. Ob reciprocam utilitatem in disciplinam juris gentium abiit, utcivitas alterius civitatis leges apud se valere patiatur."'
If this maxim of Huber is intended only for a statement of the fact that this is the practice of nations, it is entirely unnecessary to allege comity or reciprocal advantage as the cause. As a principle of private law, it is sufficient to say that the admission has been so generally made that it has become a principle of universal jurisprudence, which the tribunals of every nation are bound, in the absence of a particular national rule— statutory or customary—to receive as a rule of natural reason accepted by the state. And this, perhaps, was the meaning of Huber in the passage last cited—in disciplinam juris gentium abiit, ut civitas alterius civitatis leges apud se valere patiatur. It is, however, evident, from the remarks in the Prailectiones following the three maxims, that he there conceived that the tribunals were to base their recognition and allowance of the effects of foreign laws upon considerations of comity, reciprocal utility, &c. And in saying in that place that the three maxims, or this topic of jurisprudence, belongs to the jus gentium, and not the jus civile, he apparently intends, by the former, that international law of which nations, in their political personality, are the subjects.'
1 So in 1 Voet, de Statutis, § 1; 12, 17. "Dein quid ex comitate gens genti. .. liberaliter et officiose indnlgeat, permittat, patiatur, nltro citroque.*
2 It will be necessary, hereinafter, to show that the term jus gentium, in the writings of the civilians, has been used in two significations, the one being the original meaning which it has in the Corpus Juris Civilis, equivalent to universal jurisprudence the other, a modern meaning equivalent to public international law, according to the definitions given in the first chapter. This double meaning has occasioned much misconception and misquotation. See Reddie's Inq. Klein. &c, ch. iv.
THE JURISTICAL KKROR. 73
§ 81. The later writers following Huber have constantly cited the axiom as implying that judicial tribunals are to regard the comity of nations and considerations of reciprocal advantage as a criterion by which they are to allow or disallow the operation of foreign laws upon persons and things within the jurisdiction of their states; or—to vary the form of statement —that the tribunals are to take into consideration whether out of comity, or by, or for, or under comity, the nation or state is bound to admit the operation of the foreign laws, and then determine the rights and obligations of private persons accordingly.
This idea of a. judicial recognition of comity of nations, reciprocal advantage, &c,—the motives which are supposed to act on the supreme authority—the rector imperii, seems to have been seized upon from an inability to discover what authority a judicial tribunal could have in making that practical recognition of the effects of foreign laws which it was plainly seen was nevertheless constantly taking place. In order to justify the courts in thus giving effect, as it seemed, to a foreign law, the courts were made to assume the powers of the state or of the sovereign. They were supposed to have abandoned their judicial function of applying the national law (positive law) to private persons, and to have assumed to act for the state in its political legislative capacity, and to decide what were the dictates and requirements of a rule which, in operating on the state as its subject, is a public law, and a law in the imperfect sense only: while, in fact, neither comity nor any other motive or rule acting on states or nations had anything to do with the judicial recognition or non-recognition of the foreign law. The state, in vesting the tribunal with juridical power, and having recognized all other states as expository of that rule of right which was to be enforced in its own jurisdiction as positive law, had already recognized the validity of the effects of foreign laws within its own jurisdiction, if not contrary to the rule of right contained in its own local municipal (internal) law, and this question of contrariety was the only one for the consideration of the tribunal.
The whole of this doctrine of the comity of the nation ap
74 Stoby's VEB8I0N OF THE THIBD MAXIM.
plied by the court,1 involves the fallacy that the tribunal is To determine the rule of right for the action of the state, when the whole of jurisprudence is founded on the principle that the state determines the rule of right for the action of the tribunal. § 82. Judge Story, in his Conflict of Laws, § 31, accepts Huber's three maxims for the basis of private international law, but it will be seen that in translating the third maxim he introduces the word ought in a manner not strictly justified by the terms of the original; though, by so wording it, the real basis of the action of judicial tribunals is indicated. The maxim as given by Story, Confl. of L., § 29, is: "The rulers of every empire, from comity, admit that the laws of every people in force within its own limits, ought to have the same force every where, so far as they do not prejudice the powers or rights of other governments, or of their citizens." In Huber's statement, it is not said that the rectores imperii admit that foreign laws ought to have effect, or that it is right that they should have effect, &c. It is merely said that, in point of fact, they have allowed them to take effect. But the practice thus stated by Huber is, to the tribunal of the forum of jurisdiction, the indication that the national law—or the author of the national law. does consider that foreign laws ought to have that effect; and
113 Peters R., 589, by Taney, C. J., citing Story's Confl. of L., § 38. "It is not the comity of the court, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning by which all other principles of municipal law are ascertained and guided." 1 Greenleaf Evid., § 43.
Therefore, the idea of " comity of nations," "international comity," operating as a judicial rule, has been denominated by some authors a fiction of romance. Scha*ffner, §§ 29, 30, says: "From being jurists they became poets; inventing the fiction, that the comity of the nation was making place for the foreign law: or else—in instances of direct juridical contradiction between the two laws—they played the part of the statesman instead of that of the jurist; pointing out the commercial or other disadvantages which might accrue to the subjects of their own state if the foreign law should be disallowed.
"This romantic idea of the comilas gentium, originating in a misconception of the nature of law, and bearing a great resemblance to a blocut hermktque, lurks in many of the older treatises, and reappears even at the present day, as, for example, in Story's work. Now, if we observe closely how the principle of the comitas gentium has been carried out, we become aware, to our surprise, that it has never, in fact, been actually applied, or at least that in most of the supposed cases, some principle entirely distinct from the comitas has been appealed to. How could any consistent result be attained by following a conception so utterly vague andunjuristical. It is not possible, in f.*ct, even approximately, to decide correctly the simplest question of international private law by this principle. Where is the beginning of the end of comity? How can questions of law be answered according to political considerations which are of all others he most fluctuating?" (Transl.)
DOCTBDTE OF M. FCELIX. 7K
therefore, it is also to that tribunal its authorization in realizing or maintaining the rights and obligations belonging to the relation created by the foreign law. If the state to which the tribunal belongs had not indicated its approval of this customary action of states or nations, the court or tribunal would have no power, from the practice here stated, to maintain the effects of foreign laws: whatever view it might take of the demands of international comity, and the prospect of reciprocal advantage. This indication is found in the customary law of such state; which, as has been shown in the first chapter, § 36, recognizes other civilized states or nations as the legitimate expositors of natural reason, and requires its tribunals to recognize a universal jurisprudence, a historical law of nations, ascertained from the practice of all civilized nations. The motives for that practice are immaterial. It is the customary law of the land, derived from the legislative and juridical practice of nations, having an international effect, which the tribunal applies under this rule; not the considerations of duty or of advantage which may be supposed to operate on states and nations in regulating their conduct by any code of law, so called.
§ 83. M. Fcelix, in his Droit International Prive, ch. iii., Principes Fondamentaux, note, professes entire concurrence with Judge Story's view of the principle of comity. "La doctrine que nous exposons dans ce chapitre est celle de M. Story; nous l'adoptons completement." And he expressly vindicates, the doctrine of a comity of nations—international comity applicable by the tribunals; that is, makes the question—what does comity require? a question for courts of law to decide. In §11, his language is—" Les legislateurs, les authorites publiques, les tribunaux et les auteurs, en admettant l'application des lois etrangeres, se dirigent non pas d'apres un devoir de n6cessite, d'apres une obligation dont l'execution peut etre exigee, mais uniquement d'apres des considerations de utilite et de convenance reciproque entre les nations (ex comitate gentium, ob reciprocam utilitatem,") &c.—going on to describe the motives which may and do operate on sovereign states, in allowing a foreign law to operate: but making no distinction between the functions of the judge and the legislator, and as appears in the