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ART. III.-Commentaries on the Conflict of Laws, Foreign and Domestic, in regard to Contracts, Rights, and Remedies; and especially in regard to Marriages, Divorces, Wills, Successions, and Judgments. By JOSEPH STORY, LL.D., Dane Professor of Law in Harvard University. Boston: 1834.

JUDGE STORY, whose distinguished ability and industry have contributed so much to the exalted reputation of the Supreme Court of the United States, finds time, in the intervals of judicial duty, to favour the profession and the public with treatises upon important subjects of legal science, as Dane Professor of Law in Harvard University. The title of this work indicates the interesting nature of its topics. The contrariety of laws existing among different nations, and the rules of comity, which give effect to the laws of one country in those of others, involve considerations of the highest interest and delicacy in international jurisprudence. In the United States of America, with a few exceptions provided for in the Constitution, the law is equally applicable to the several states of the Union, now amounting to twenty-four in number, and receiving a constant and rapid increase.

The subject of Judge Story's work is no less recommended by its novelty than its importance. There exists no treatise upon it in the English language. Until a comparatively recent period, neither the English lawyers nor judges seem to have had their attention drawn towards it, and their researches are less profound and satisfactory than their expositions of municipal law. Even among the foreign jurists of continental Europe, there exists no systematical treatise embracing all the general topics.

Such a work is not only necessary to be studied attentively by all professional men, and particularly by the liberal advocates of America, but most of its topics, from their universality and deeply interesting nature, deserve a more extended circulation among other classes of the community. It is for the last reason chiefly that this work requires to be noticed in a popular journal, and its principles diffused among those to whom a mere law book in general presents few attractions.

The work is dedicated to Chancellor Kent, to whom is ascribed the honour of having been the guide and instructor of the American youth, in this branch of international jurisprudence.

Before entering upon any examination of the various heads which a treatise upon the Conflict of Laws will naturally embrace, it is necessary to advert to a few general maxims or axioms, which constitute the basis upon which all reasonings on the subject

must rest.

1. Every nation possesses an exclusive sovereignty and jurisdiction within its own territory. The laws of every state affect

and bind directly all property, whether real or personal, within its territory, and all persons who are resident within it, whether natural born subjects or aliens, and also all contracts made, and acts done within it. A state may therefore regulate the manner and circumstances under which property, whether real or personal, or in action within it, shall be held, transmitted, bequeathed, transferred, or enforced; the condition, capacity, and state of all persons within it; the validity of contracts and other acts done within it; the resulting rights and duties growing out of these contracts and acts; and the remedies and modes of administering justice in all cases calling for the interposition of its tribunals, to protect, vindicate, and secure the wholesome agency of its own laws within its own domains.

2. No state or nation can by its laws directly affect or bind property out of its own territory, or persons not resident therein, whether they are natural born subjects or others. This is a natural consequence of the first. proposition.

3. From these two maxims or propositions there flows a third, and that is, that whatever force and obligation the laws of one country have in another, depends solely upon the laws and municipal regulations of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent. A state may prohibit the operation of all foreign laws, and the right growing out of them, within its own territories. It may prohibit some foreign laws, and admit the operation of others. It may recognise, and modify, and qualify some foreign laws; it may enlarge or give universal effect to others. It may interdict the administration of some foreign laws; it may favour the introduction of others. When its code speaks positively on the subject, it must be obeyed by all persons who are within the reach of its sovereignty. When its customary, unwritten, or common law, speaks directly on the subject, it is equally to be obeyed, for it has an equal obligation with its positive code. When both are silent, then and then only can the question properly arise, what law is to govern in the absence of any clear declaration of the sovereign will. Is the rule to be promulgated by a legislative act of the sovereign power, or is it to be promulgated by courts of law, according to the analogies which are furnished in the municipal jurisprudence? This question does not admit of any universal answer, or rather it will be answered differently in different communities, according to the organization of the department of each particular government. Upon the continent of Europe, some of the principal states have silently suffered their courts to draw this portion of their jurisprudence from the analogies furnished by the civil law, or by their own customary or positive code. In England and America, the courts of justice have hitherto exercised the same authority in the most ample manner, and the legislatures

have, in no instance, it is believed, in either country, interfered to provide any positive regulations. The common law of both countries has been expanded to meet the exigencies of the times as they have arisen, and so far as the practice of nations, or jus gentium privatum, has been supposed to furnish any general prin ciple, it has been followed out with a wise and manly liberality.

The real difficulty is, to ascertain what principles, in point of public convenience, ought to regulate the conduct of nations on this subject in regard to each other; and in what manner they can be best applied to the infinite variety of cases arising from the complicated concerns of human society in modern times. No nation can be justly required to yield up its own fundamental policy and institutions in favour of those of another nation; much less can any nation be required to sacrifice its own interest in favour of another, or to enforce doctrines which, in a moral or political view, are incompatible with its own safety or happiness, or conscientious regard to justice and duty.

The true foundation on which the administration of international law must rest is, that the rules which are to govern are those which arise from mutual interest and utility, from a sense of the inconveniencies which would result from a contrary doctrine, and from a sort of moral necessity to do justice, in order that justice may be done to us in return.

Mutual utility presupposes that the interest of all nations is consulted, and not that of one only. This demonstrates, that the doctrine owes its origin and authority to the voluntary adoption and consent of nations. It is therefore in the strictest sense a matter of the comity of nations, and not of absolute paramount obligation, superseding all discretion on the subject.

National Domicil. As perpetual reference is made to the domicil of the party, in the discussions upon the subjects hereafter to be examined, it is proper to ascertain the meaning of the term.

In a strict and legal sense, that is properly the domicil of a person, where he has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning. Two things must concur to constitute domicil; first, residence—and secondly, intention of making it the home of the party. In many cases, actual residence is not indispensable to retain a domicil after it is once acquired. Thus, if a person go on a voyage to sea, or to a foreign country for health or pleasure, or business of a temporary nature, with an intention to return, such transitory residence does not constitute a new domicil, or amount to an abandonment of the old one. It is sometimes a matter of great difficulty to decide in what place a person has his domicil. The residence is often of a very equivocal nature, and the intention still more obscure. Both are sometimes to be gathered VOL. XVII. NO. 34.

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Some of the more important rules, which have been generally adopted as guides in cases of most familiar occurrence, are: 1. The place of birth of a person is considered as his domicil, if it is at the time of his birth the domicil of his parents. 2. The domicil of birth of minors continues until they have obtained a new domicil. 3. Minors are generally deemed incapable of changing their domicil during their minority: if the parents change their domicil, that of the infant children follows it; and if the father dies, his last domicil is that of the infant children. 4. A married woman follows the domicil of her husband. 5. A widow retains the domicil of her deceased husband until she obtains another. 6. Prima facie, the place where a person lives is taken to be his domicil, until other facts establish the contrary. 7. Every person of full age having a right to change his domicil, it follows, that if he removes to another place, with an intention to make it his permanent residence, animo manendi, it becomes instantaneously his place of domicil. 8. If a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of present domicil, it becomes his place of domicil, notwithstanding he may entertain a floating intention to return at some future period. 9. The place where a married man's family resides is generally to be deemed his domicil, but it may be controlled by circumstances; for if it is a place of temporary establishment for his family, or for transient objects, it will be otherwise. 10. If a married man has his family fixed in one place, and he does his business in another, the former is considered the place of his domicil. 11. If a married man has two places of residence at different times of the year, that will be esteemed his domicil which he himself selects or describes, or deems to be his home, or which appears to be the centre of his affairs, or where he votes or exercises the rights and duties of a citizen. 12. If a man is unmarried, that is generally deemed the place of his domicil, where he transacts his business, exercises his profession, or assumes municipal duties or privileges; but this rule is of course subject to some qualifications in its application. 13. Residence in a place, to produce a change of domicil, must be voluntary. If, therefore, it be by constraint, or involuntarily, as by banishment, arrest, or imprisonment, the antecedent domicil of the party remains. 14. Mere intention to acquire a new domicil, without the fact of removal, avails nothing, neither does the fact of removal without the intention. 15. Presumptions from circumstances will not prevail against positive facts, which fix or determine the domicil. 16. A domicil once acquired remains until a new one is acquired. 17. If a man has acquired a new domicil different from that of his birth, and he removes from it with an intention to resume his native

domicil, the latter is re-acquired, even while he is on his way, in itinere, for it reverts from the moment the other is given up.

Persons who are born in a country, are generally deemed citizens and subjects of that country. A reasonable qualification of this rule would seem to be, that it should not apply to the children of parents who were in itinere in the country, or abiding there for temporary purposes, or for health, or occasional business. It would be difficult, however, to assert that in the present state of public law, such a qualification is universally established.

Ambassadors and other foreign ministers retain their domicil in the country which they represent, and to which they belong. A different rule, generally, applies to consuls and other commercial agents, who are presumed to remain in a country for purposes of trade, and therefore acquire a domicil where they reside. Children born upon the sea, are deemed to belong and have their domicil in the country to which their parents belong. Domicil is of three sorts-domicil by birth, domicil by choice, and domicil by operation of law, as that of the wife, arising from marriage.

The operation and effect of foreign laws are to be considered in relation to persons, their capacity, state, and condition. These are, for the most part, held by foreign jurists to be of absolute obligation every where, when they have once attached upon the person by the law of his domicil. The exceptions and distinctions, however, which they are compelled to make, go far to limit if not to impair its force. Where a person has had different domicils, a domicil by birth, and a subsequent domicil by choice, which is to prevail? And is the law of the domicil of origin, or that of the domicil of the contract, to govern'

In England it has been held, in a case where money had been advanced for a minor during his stay in Scotland, who seems to have had his general domicil in England, that the question whether in an English court a recovery could be had for the money so advanced, depended upon the law of Scotland; for the general rule was, that the law of the place where the contract is made must govern the contract.

In respect to contracts of marriage, the English decisions have established the rule that a foreign marriage is held to be valid or invalid, according to the law of the place where celebrated. But where the laws of England create a personal incapacity to contract marriage, that incapacity will in some cases be held to have a universal operation, so as to make a subsequent marriage in a foreign country a mere nullity, when litigated in a British court. Indeed, the general principle adopted in England in regard to cases of this sort, appears to be, that the lex loci contractus shall be permitted to prevail, unless where it would work injustice, or be contra bonos mores, or be repugnant to the settled principles and policy of its own laws. By the law of Scotland for instance, illegitimate

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