Where Lex

Fori conflict.

this right by a charter which the King was empowered by statute to grant for the purpose of erecting courts of judicature in India?" With reference to the priority of creditors and distribution of assets the lex fori prevails: Simpson v. Fogo, 32 L. J. (Ch.) 249.

If the exemption from arrest and imprisonment enters into and forms an essential ingredient in the original contract by the law of the country where it is made, and is not merely contingent on the failure of the debtor to perform his obligations, it has been held that it cannot be enforced. Thus it was decided that an ordinary debt contracted in France, where the contrainte par corps is limited to commercial debts, could not be enforced by personal arrest in this country: Melan v. The Duke of FitzJames, 1 Bos. & Pul. 138. But this case is doubtful: see Imlay v. Ellefsen, 2 East, 453; De la Vega v. Vianna, 1 B. & Ad. 284; Voet, Comm. ad Pandect, lib. ii. tit. 4, s. 45.

And if a positive law intervenes in the country where the action is brought, affecting the subject-matter of the contract, the lex fori must be applied, although in effect it alters the terms of the contract. Thus, if a rate of interest were claimed upon a loan which, although legal in the place where the contract was made, was illegal by the usury laws in the place where the action to recover it is brought, the Court would decide against the claim: Story, Conf. Laws, s. 374. But compare ss. 303-5.

Jurists have laid it down that when the lex loci contractús and

Loci and Lex the lex fori come into collision, as to conflicting rights acquired under each, the comity of nations must yield to the positive law of the land: Kent, Com. ii. 461 (3rd edit.); Story, Conf. Laws, s. 327. In Potter v. Brown, 5 East, 131, Lord Ellenborourgh, C.J., said: "We always import together with these persons the existing relations of foreigners as between themselves according to the law of their respective countries, except indeed where those laws clash with the rights of our own subjects here; and one or other of the laws must necessarily give way, in which case our own is entitled to the preference."

In an action brought in this country for an assault committed at Naples, the defendant pleaded, that according to the law of Naples he was liable to certain penal proceedings in consequence of the trespass, and that by that law no civil action could be maintained

until after he had been found in such penal proceedings, and that no such proceedings had been instituted; but the Court said: "We think this furnishes no defence. It is a matter of procedure which was to be governed by the lex fori:" Scott v. Lord Seymour, 31 L. J. (Ex.) 457; affirmed in Error, 32 L. J. (Ex.) 61. But upon the question whether, if, by the Neapolitan law, no damages had been recoverable at law for such an assault, the action would be maintainable here, the Court of Error differed in opinion. Wightman, J., thought that a British subject would not be deprived of his right to sue here by such a foreign law; but Williams, J., said, that he was not prepared to assent to this; Compton, J., thought it a matter of very great difficulty and doubt; and Blackburn, J., said, that his mind was far from made up on the question, but he doubted very much whether such a plea would be a good bar. In a recent case the Judicial Committee said that it was alike contrary to principle and authority to hold that an English court of justice would enforce a foreign municipal law, and give a remedy in the shape of damages in respect of an act which according to its own principles imposes no liability on on the person from whom the damages are claimed: The Halley, L. R. 2 P. C. 204.

In a case of collision on the high seas between a foreign and a British vessel, Dr. Lushington held that the Merchant Shipping Act, 1854, which limits the liability of owners in damages to the value of ship and freight, does not apply where the foreigner is defendant: The Wild Ranger, 32 L. J., P. M. & Adm. 49. And the Judicial Committee, reversing a decision of the Court of Admiralty, have determined that in an action founded on a tort committed in the territory of a foreign State (it was the case of a collision in Belgian waters), the party suing in a British court is not entitled to the benefit of the foreign law against the provisions of the statute law of England: The Halley, L. R. 2 P. C. 193.

CHAPTER IX.

ON ALLEGIANCE AND ALIENS.

(1.) OPINION of the Attorney General, SIR EDWARD NORTHEY, on the question of Alienage, and Trading with Her Majesty's Enemies. 1703.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-On consideration of the case of Manasses Gillingham, who (being a natural-born subject of her Majesty, but a settled inhabitant in the island of St. Thomas, belonging to the King of Denmark, and naturalized there) traded from thence to and with the Spaniards, in war with her Majesty; I am of opinion, his being naturalized without the license of her Majesty will not discharge him from the natural allegiance he owes to her Majesty; however, he being a settled inhabitant in the island of St. Thomas, under the King of Denmark, and not having been commanded to return into her Majesty's dominions, as he might have been, though naturalized there, his trading with the Spaniards from that island, in amity with the Danes, will not be a capital, if any offence at all; and therefore I cannot advise the proceeding against him criminally for such trading. If any inconvenience happens from such trading, as is suggested by the Governor of Barbadoes' letter, the Queen's subjects may be recalled to return to her Majesty's dominions; and if they refuse, and after trade with her Majesty's enemies, they may be proceeded against criminally for such trading, as any of her Majesty's subjects residing in her plantations may be proceeded against for trading with her Majesty's enemies-that is, for a misdemeanor; for I do not take simple

trading with an enemy to be high treason, unless it be in such trade as furnishes the enemy with stores of war.

March 22, 1703-4.

EDW. NORTHEY.

(2.) OPINION of the Attorney General, SIR FLETCHER NORTON, as to whether the French and Spaniards who remained in the ceded Countries after the Peace of 1763, were Aliens or Subjects. 1764.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-In obedience to your Lordships' commands, signified to me by Mr. Pownall's letters of the 21st of December and the 1st of March last, stating that great difficulties had frequently occurred from the question whether the subjects of the Crowns of France and Spain, who remain in the ceded countries in America, are to be considered as aliens; and intimating more particularly, that a variety of doubts and difficulties had occurred as to the ability of aliens to acquire property in America, either by purchase, grant, or lease from the Crown; and also as to the situation in respect to the laws of this kingdom, of such subjects of the Crowns of France and Spain as, being inhabitants of Canada, Florida, and the ceded islands in the West Indies, remain there under the stipulations of the last definitive treaty; and therefore desiring my opinion, whether such of the French or Spanish inhabitants of Canada, Florida, and the islands of Grenada, Dominica, St. Vincent's, and Tobago, as being born out of the allegiance of his Majesty, and also remain in the said countries under the stipulations of the definitive treaty, are, or are not, under the legal incapacities and disabilities put upon aliens and strangers by the laws of this kingdom in general, and particularly by the Act of Navigation, and the other laws made for regulating the plantation trade; and if it should be my opinion that they are under such disabilities and incapacities, your Lordships, in that case, desire my sentiments in what manner such disabilities may be removed.

I have taken Mr. Pownall's letters into my consideration, and am humbly of opinion that those subjects of the Crowns of France

and Spain, who were inhabitants of Canada, Florida, and the ceded islands in the West Indies, and continued there under the stipulations of the definitive treaty, having entitled themselves to the benefits thereof by taking the oaths of allegiance, &c., are not to be considered in the light of aliens, as incapable of enjoying or acquiring real property there, or transmitting it to others for their own benefit; for I conceive that the definitive treaty, which has had the sanction, and been approved and confirmed by both Houses of Parliament, meant to give, and that it has in fact and in law given, to the then inhabitants of those ceded countries, a permanent transmissible interest in their land there; and that to put a different construction upon the treaty would dishonour the Crown and the national faith, as it would be saying that by the treaty they were promised the quiet enjoyment of their property, but by the laws were to be immediately stripped of their estates; but I think that no aliens, except such as can claim the benefit of the definitive treaty, or bring themselves within the 7th of his late Majesty, are by law entitled to purchase lands for their own benefit and transmit them to others, either from the Crown or from private persons, in any of his Majesty's dominions in North America or the West Indies.

But I submit to your Lordships, whether, as it is a matter of the highest importance that those countries should be settled, and perhaps not less so that such settlements should be made without draining this country of its inhabitants-whether it would not be proper to apply to Parliament for a Naturalization Bill for those places, under proper regulations, as well to encourage foreigners to go thither, as to quiet such aliens as may have already settled there, under the common received opinion that they were capable of holding lands there for their own benefit, and disposing of them in any manner they might think proper, in common with the rest of his Majesty's liege subjects.

Lincoln's Inn, July 27, 1764.

FLETCH. NORTON.