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76 IMPORTANCE OF THE DISTINCTION.
citation here given, even putting administrative officers—lea autorites publiques, and the publicists—les auteurs, all in the same juridical position.
In another part of the same section, M. Fcelix speaks of the force of the practice of nations in this respect as a juridical authority; meaning, apparently, that this practice is the warrant for the admission or application of foreign laws by judicial tribunals.—"Mais ce qu'il y a de certain c'est qu'aujourd'hui toutes les nations ont adopte enprincipe, l'application dans leurs territoires des lois etrangeres, sauf toutefois les restrictions exigees par le droit de souverainete et de l'interet de leur propres sujets." And near the end of the chapter—" L'usage des nations a etabli, pour leur avantage reciproque, et dans certains cas, l'effet des lois Etrangeres;" without, however, stating explicitly whether the tribunal is bound to regulate its decisions by this "usage des nations," or is to consider comity and "avantage reciproque," before making the allowance.
§ 84. If it were simply stated that the custom of nations having been comiter—that is, either in a way which shows comity and good will, or prompted by comity and the hope of reciprocal advantage, to require their judicial tribunals to maintain the relations created by foreign laws when not contrary to the rule of right established by the local law, or, in the language of Huber—"quatenus nihil potestati et juri alterius imperantis aut ejusdem civium prsejudicetnr;" or, in the language of M. Foelix—"sauf toutefois les restrictions exigees par le droit de souverainete et de Tinteret de leur propres sujets,"— therefore the tribunals of any one nation are bound to carry out or maintain the relations created by foreign laws, there would be no practical objection to the allegation that the political cause of that admission is the good will of the nation and the prospect of reciprocal benefit; and there would be very little practical utility in the attempt which has here been made to discriminate the true theory of the judicial recognition of foreign laws. The question before the tribunal would, under either view, practically be decided by the same inquiry—that is, whether the relation created by the foreign law is contrary to the rule of right—potestati et juri contained in the local law, as ANOTHER EEEOK ITS TENDENCY. 77
before explained. But it is evident that the effect of basing the historical fact of this customary judicial recognition upon comity has been to induce judges to assume the part of diplomatists, acting for the state or nation in its integral political personality, and to decide matters of private right (the rights and obligations of private persons) by political considerations. And there is much in the writings of Story, Fcelix, and others, to sanction this practice.
This tendency, which is no where more apparent than in the juridical literature of the United States, has in a great degree been caused by the supposed necessity of a judicial protest against another misconception, entertained by some few writers on these questions, who hold that a state may be hound (as if by positive law) to admit foreign laws to operate within its territory, if not actually injurious to its political sovereignty. Story, Conf. of L. § 33, observes, "It has been thought by some jurists that the term 'comity ' is not sufficiently expressive of the obligation of nations to give effect to foreign laws when they are not prejudicial to their own rights and interests. And it has been suggested that the doctrine rests on a deeper foundation; that it is not so much a matter of comity, or courtesy, as a matter of paramount moral duty," (citing Livermore: Dissertation on the contrariety of laws, p. 26 to p. 30.) But these jurists also make this supposed duty of the state the basis of the action of the tribunal. Now, the duty of the state is evidently beyond the action of its own judicial officers. The admission, to whatever degree it may be sanctioned by the state, may have resulted from motives of comity, or from a sense of duty. But if comity, or any thing else, is conceived of as a necessarily binding measure of the degree in which this judicial admission shall take place, then a rule, operating as positive law, is assumed to have determined the juridical action of the state, when, in jurisprudence—the science of what law is, the action of the state is the only possible criterion of the rule. The comity of nations, operating as law within any one national jurisdiction, will be only whatever the possessor of supreme legislative power therein allows for comity, or by comity.
Jurists, who, on the other hand, have asserted that absolute
78 ERROR OF SUBJECTIVE VIEWS.
independence of the state in this matter which is a necessary consequence of fundamental principles, have apparently been unable to distinguish between the different positions of the state (acting under a law of the imperfect kind) and the tribunal (authorized only to apply positive law): not remembering that though the state is not bound to admit the foreign law, yet its tribunals may be bound to admit it or recognize its effects; though they are bound to do so, and can do so, only so far as the state may have indicated its will on the point. Therefore, in proposing to enforce that rule which the state has sanctioned as right, the tribunals have conceived themselves as determining also what the state ought to sanction as right. Or, to resort to the language of German (Kantian) metaphysics, the law they have applied in these cases has been a subjective and not an objective conception of the rule of action.1
1 Waechter, on the Collision of the private laws of different States, (Archiv. £ i Civil. Pr. B. 24, p. 238.) Transl.
"It is agreed on all hands, and our laws unmistakeably declare, that the law derives its validity from itself, from the moment of its being formally promulgated, unconditionally, and without reference to the subjective opinion of individual members of the state in respect to its intrinsic merit and accordance with justice; that the requisition of a constitutional form and the limits of a constitutional power alone determine its validity, and not the nature of a law according to subjective theories. The judge is simply the instrument of legislative will, declared in a certain formally legal manner, (the common will, to which each individual will in the state must be unconditionally subject) and this law it is the province of the judge to apply, without considering whether it is just or unjust, suitable or unsuitable, conformable or not conformable, in bis subjective conception, to the nature of a law; and the citizen is equally bound to submit himself to this general wilt If, for example, the law of a state expressly determines according to which rule a relation created in a foreign country is to be adjudicated—whether by the local law of the forum, or by that of the foreign country, the judge in that state is bound to decide accordingly; even if such adjudication may in itself be called inconvenient, unjust, or contrary to the natural requisitions of a law. « * * » The possessor of legislative power, in making a statutory determination of the question, will regard it from two several points of view; considering on the one side—the interests of the local juridical system, the exclusion therefrom of discordant elements and the maintenance of injunctions based on high purposes and the requisites of a jural society, and of the dignity and independence of its juridical power;—on the other side—the considerations of international justice which here become operative, and which demand the recognition of the legal capacity of the foreigner as well as that of the citizen, and also, in many instances, make the allowance of foreign laws advisable.— But though these considerations of utility, reasonableness, friendly understanding, natural law and the like may, and in a certain degree ought to influence the legislator, especially in forming international compacts respecting these questions, these are not matters for a judicial officer to take into consideration. He has only to inquire what the juridical will of his sovereign or the positive law of his own state may have determined on these points." And, in a note, "The different positions of the judicial officer and of the legislator are too often confounded, in treating of this topic of jurisprudence"
Savigny, Heut. R, R., B. 3, c. 1, § 348, citing this passage from Waechter, thinks it too restrictive of the judicial function: Savign v Attributing a greater relative importance to judicial tribunals as a source of law. But compare Foalix: Dr. Internal. Pr., Prof. v. vi. n, on the importance in juristical literature of distinguishing between a priori and a potUriori doctrines.
MEASURE OF RIGHT WHERE FOUND. 79
§ 85. But, irrespectively of the method or principle by which the judicial tribunal will have authority, in any case, to recognize and maintain relations created by foreign laws,—before the maxim as herein before stated, (§ 77,) or as stated byHuber and Story, can be practically applied by a tribunal supposed to have jurisdiction of an alien, that tribunal must be furnished with a test by which to know in what cases the foreign law, if allowed to take effect, would conflict with the potestas and jus—" the power or rights of its own government and its citizens." Or, according to the translation herein before given, (§ 80) of the word jus and the a priori view taken of the foundation for the international admission of foreign laws, (§ 77,) that tribunal, —admitting the presumption to be in favor of their admission— must still compare the foreign law with the measure of right contained in the local law,—its own municipal or internal law. In this connexion the potestas and jus of a state may be taken to be equivalent to its public and private municipal law, which are necessarily taken in its own courts to be jural rules,—rules accordant with natural right or natural reason.
§ 86. Laws which differ in their national source and character, maybe called the same or similar laws, when each, within its own jurisdiction, produces similar correlative rights and obligations between persons in similar circumstances of natural condition. Any two such laws, must, in that case, be taken by the tribunals of the respective authors of each to be equally correspondent with natural reason; or, to change the form of expression, rights and obligations so produced by one national law, must be taken, in the jurisdiction of the other national law, to be correspondent with natural reason. And if the persons and things who are the subjects and objects of these rights and obligations pass from the jurisdiction of one law to that of another, the foreign law may be taken, by the tribunals of the latter, to be consistent with the potestas and jus of the latter—following the terms of Ruber's maxim: and the
80 DIFFERENCES IN EXTENT OF THE NATIONAL LAW.
foreign law be allowed international recognition and support; having then, in fact, a personal extent in a new forum.1
§ 87. Every national law is necessarily taken, by its own author and tribunals, to be rightful in the circumstances and for the persons to whom it is applied. But even if laws of different national origin should, each in its own jurisdiction, create different relations from those which would be created by the other, in the jurisdiction of that other, in reference to similar persons and things, (in which case the two laws could not be said to agree in a judgment of the dictates of natural reason), yet it does not follow of necessity that they are opposed in such judgment, or that the tribunals of either jurisdiction should deny a jural character to the laws of the other, operating in the jurisdiction of that other, or that either should refuse to acknowledge any of the effects and consequences of the law of that other, in the relations of persons formerly subject thereto, who might afterwards pass under or be found within its own jurisdiction. For though every principle entering into the municipal (internal) law of a state must be taken by its tribunals to be a jural law, and accordant with natural reason, it is, in the nature of the case, first promulgated as a law for persons and things within its several territorial jurisdiction.' But when any distinction of persons as alien or domiciled is made then the question of the extent of the principles of the local (internal) law, is to be determined judicially; looking to the intention of the supreme power. For a principle of the local law may be intended to apply to one or more specified persons, or to a class of persons, or to all persons indifferently, within the jurisdiction. It may be intended to affect the relations of those persons only who are domiciled or native subjects, or of those only who are aliens to the jurisdiction, or it may apply to all human beings generally, as the objects and agents of that action in a civil state which the law
1 See ante, §§ 53-56.
* " For there are in nature certain fountains of justice whence all civil laws are derived, but as streams; and like as waters do take tinctures and tastes from the soil through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountain." Bacon Adv. Learn. B. II. c 8. Works, voL L 238. Am. Ed.
Montesquieu: Spirit of Laws, Book I, c . 3.
Scaccia: Tractatus de Commer., Quiest. vn. par. u. ampl. 19,$ 19.