John Westlake

“ Comity, in that phrase, may only be intended to express the truth that foreign public authority has no inherent effect, without denying that the effect which domestic public authority allows to it is dictated by justice. ”

“ In the system adopted in England everything turns on the competence. For judgments in rem, declaring or disposing of the property in a thing, the test of competence is that the thing, whether movable or immovable, was within the territory of the court. Judgments which declare the status of a person, as with regard to marriage or majority, are competent if the person was subject to the jurisdiction by nationality or domicile. ”

“ The distinction between domestic and international grounds of competence can only be explained by the history of law, and we come in sight of the fact that the rules of private international law rest finally on conventions which could not have existed if the civilization of different countries had not so much that was common in its origin and in the course which it has followed, but which suit the life of those countries just because that life is itself another outcome of those common antecedents. ”

“ They meet us again when we inquire in what territory, or by virtue of what territorial law, a particular alleged right has accrued. Persons belonging by domicile or nationality to A enter in B into a contract to be performed in C; where and by virtue of what law does either acquire a right against the other? Is it to be in or by the law of their homes, where they are normally, though not always necessarily, to be sued? Or of the country where they contract, which for various purposes, as those of police, but not for all purposes, has the control of them when they contract? ”

“ If, as in England, judicial precedents are held to be binding, so that the law of the land consists in part of judge-made law, a similar result is produced; an English court must follow English precedents on the application of foreign law or the refusal to apply it, to the same extent to which it would be bound to follow them on any other point. So far as our matter remains open for a judge, he has, to assist him towards a just decision, the treaties, written laws and judicial precedents of other countries as examples, and a vast literature which has grown up in all Christian countries. ”

“ Savigny has well pointed out that our subject is analogous to the determination of the limits of laws in time, which has to be made when the just application of a new enactment is to be distinguished from the ex post facto application which cannot justly be allowed it. The truth which is aimed at in the phrase “conflict of laws” is that the main problem of our subject is the selection of a law for each given case; but different laws are candidates for selection, not from anything in them as laws, but from differing opinions about the justice of the case. ”

“ But the act does not apply to foreigners who have obtained letters of naturalization in any part of the British dominions. It has not been availed of, and is indeed an anachronism, ignoring as it does the fact that domicile has no longer a world-wide importance, owing to the substitution for it of political nationality as a test of private law in so many important countries. The United States of America is not one of those countries, but there the importance of domicile suffers from the habit of referring questions of capacity to the law of the place of contract instead of to any personal law. ”

“ Another ground for the application of a personal law is furnished by the cases in which masses of property and rights have to be dealt with collectively, by reason of their being grouped around persons. The principal instances of that kind are when it is necessary to determine the validity and operation of a marriage settlement or contract, or the effect of marriage on the property of the husband and wife in the absence of any express settlement or contract, and when property passes on death, either by a will or by intestate succession. ”

“ English courts usually hold themselves to be more stringently bound by rules, whether those enacted by parliament or those adopted for themselves; and if they should continue to profess the doctrine that capacity depends on the law of the domicile, it is not probable that they will deem themselves entitled to make exceptions for the protection of persons contracting in England with foreigners not enjoying such capacity. ”

“ The extent to which the continent has become united with regard to private international law appears from the fact that France, Germany, Italy, the Netherlands, Portugal, Rumania and Sweden are parties to all the conventions—that Luxemburg, Russia and Spain are parties to those relating to judicial procedure—and that all the ten except Russia, but with the addition of Austria, Belgium and Switzerland, are parties to those on the validity of marriage, divorce and judicial separation, and the guardianship of minors; while all remain open to adhesion by other powers. ”

“ In the middle ages, when a great diversity of laws had arisen, questions concerning personal status, as the age of majority or the capacity to contract a given marriage, came naturally to depend on the law to which the person was subject by reason of the general jurisdiction over him ”

“ There is, however, one case in which the principle of the acceptance of foreign rights leads to a conclusion, namely, where the right has been declared by the judgment of a competent court, which may have been given in an ordinary case, presenting no question of private international law, but in which, if such a question arose, it has been solved by choosing the law and basing the judgment on it. ”

“ At present it is agreed that the only intention to be considered is that of residence, but that, if the intention to reside in the territory be proved to amount to what has been above stated, a domicile will be acquired from which the legal consequences will follow, even defeating intentions about them so clearly expressed as, for instance, by making a will which by reason of the change of domicile is invalid. ”

“ The Naturalization Act 1870, which now governs the matter for England, does not say that the person naturalized becomes thereby a British subject, to which, if it had been said, a proviso might have been added saving the above-mentioned policy of the foreign office as to not protecting him in his old country, although even without such a proviso the foreign office would have been free to follow that policy. ”

“ It seems to be a rule of general public law that an alien can be sent out of the realm by exercise of the crown’s prerogative; but in modern English practice, whenever it seems necessary to expel foreigners (see Expulsion) , a special act of parliament has to be obtained for the purpose, unless the case falls within the extradition acts or the Aliens Act 1905. The latter prohibits the landing in the United Kingdom of undesirable alien steerage passengers, called in the act “immigrants,” from ships carrying more than twenty alien steerage passengers, called in the act “immigrant ships” ”

“ The English courts were slow to recognize a personal law at all and as late as Lord Eldon’s time they held that the competency of a person to contract depended on the law of the place where the contract was made. ”

“ Comity of Nations.—In the 17th century the Dutch jurists Paul and John Voet and Huber brought forward a view which has since been largely adopted in England and the United States, namely, that the effect given by courts of law to foreign public authority is only due to the comity of nations, but for which every possible question before them would have to be decided by the law of the land. ”

“ All, so far as Great Britain has settled legal relations with them, are among those in which British subjects live under consular protection and jurisdiction, or (in Egypt) under that of the Mixed Courts. A better instance is afforded by the refusal of courts, normally within the pale of European legal communion, to recognize divorce as dissolving a marriage, notwithstanding that it has been decreed under the personal law. ”

“ Many of the disabilities to which aliens were subject in the United Kingdom, either by the common law or under various acts of parliament, have been repealed by the Naturalization Act 1870. It enables aliens to take, acquire, hold and dispose of real and personal property of every description, and to transmit a title to it, in all respects as natural-born British subjects. ”

“ Guardians, curators and committees of foreign minors or lunatics, deriving their authority from the law or jurisdiction of the latter’s domicile or nationality, can sue and give receipts for their personal property. A court will not decree the divorce of persons not domiciled within its jurisdiction, and it will recognize foreign divorces if, and only if, they have been decreed by a jurisdiction to which the parties were subject by domicile or nationality. ”

“ The word territory, meaning a country having a certain legal system, is used advisedly, for neither the intention nor the fact need refer to a locality. It is possible that a Scotsman or a foreigner may have clearly established a domicile of choice in England, although it may be impossible to say whether London, Brighton or a house in the country is his true or principal residence. ”

“ It has been enacted in the United Kingdom with regard to the national status of women and children that a married woman is to be deemed a subject of the state of which her husband is for the time being a subject; that a natural-born British woman, having become an alien by marriage, and thereafter being a widow, may be rehabilitated under conditions slightly more favourable than are required for naturalization ”

“ The conflict is usually solved for practical purposes by an understanding which is approximately general, namely that, in cases not provided for by treaty, no state shall protect those whom it claims as its nationals while residing in the territory of another state which claims them as its own nationals by any title, whether jus soli, jus sanguinis, naturalization, or the refusal to allow expatriation. ”

“ Within the British dominions domicile is the only available criterion of the legal character of a British subject, and all British courts continue to apply the same criterion to British subjects outside those dominions and to foreigners, so that, for example, the age of majority of a British subject or of a Frenchman domiciled in Germany would be referred by a British court to German law. ”

“ Other works, many of great merit, are numerous in all languages; but in this, as in every department of law, the first place for England and the United States must be given to the different Law Reports, since in those countries it is not in the study but on the bench that the highest legal intellect is usually displayed, and the judgments delivered are often essays on the points involved. ”

“ In the United States an alien desiring to be naturalized must declare on oath his intention to become a citizen of the United States; two years afterwards must declare on oath his intention to support the constitution of the United States and renounce allegiance to every foreign power, including that of which he was before a subject; must prove residence in the United States for five years, and in the state where his application is made for one year, as a good citizen ”

“ International (although interterritorial would be better) is justified by the facts that public authority, which may be internationally foreign, has to be considered, and that governments display a great interest in the question by concluding treaties about it, and occasionally even by suspending diplomatic relations when a court of one country has applied to the subjects of another a rule which the government of the latter deems unjust. ”

“ As the result of the most recent English and Scottish cases it may be laid down that the necessary intention is incompatible with the contemplation by the person in question of any event on the occurrence of which his residence in the territory in question would cease, and that if he has not formed a fixed and settled purpose of settling in that territory, at least his conduct and declarations must lead to the belief that he would have declared such a purpose if the necessity of making an election between that territory and his former one had arisen. ”

“ One example often quoted is the refusal of the courts in all Christian countries to give effect to polygamous marriage, but this case goes deeper still, for none of the countries in which polygamous marriage exists is allowed to enter at all into the communion of private international law. ”

“ Hence arises the notion of a personal law, which must be that either of the person’s political nationality or of his domicile, these being the only circumstances that for the time being are fixed for the individual, irrespectively of the spot where he may happen to be, and of the transaction in which he may happen to engage. ”

“ Public Order.—It must not be supposed that the law of the land, the proper territorial law of the court which has to deal with a case in which foreign circumstances arise, always gives way to the foreign law pointed out by the general maxims which even that particular court accepts. ”

“ On the points glanced at in this paragraph the decisions in the United States generally agree with those in England, only allowing the pecuniary relations of a married couple, in the absence of express contract, to be varied by a change of domicile, notwithstanding that such change is in the husband’s exclusive power, instead of maintaining them as fixed by the matrimonial domicile. On the continent of Europe partisans of a variation after the marriage are scarcely to be found ”