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therefore an insurance of prohibited trade may be enforced in the tribunals of any other country than that where it is prohibited by the local laws.'
Huberus holds that the contract of marriage is to be Foreign governed by the law of the place where it is celebrated, marriages. excepting fraudulent evasions of the law of the State to which the party is subject.2 Such are marriages contracted in a foreign State, and according to its laws, by persons who are minors, or otherwise incapable of contracting, by the law of their own country. But according to the international marriage English law. law of the British Empire, a clandestine marriage in Scotland, of parties originally domiciled in England, who resort to Scotland, for the sole purpose of evading the English marriage act, requiring the consent of parents or guardians, is considered valid in the English Ecclesiastical Courts. This jurisprudence is said to have been adopted upon the ground of its being a part of the general law and practice of Christendom, and that infinite confusion and mischief would ensue, with respect to legitimacy, succession, and other personal and proprietary rights, if the validity of the marriage contract was not determined by the law of the place where it was made. The same principle has been
1 Pardessus, Droit Commercial, pt. vi. tit. 7, ch. 2, § 3. Emerigon, Traité d'Assurance, tom. i. pp. 212-215. Park on Insurance, p. 341, 6th ed. The moral equity of this rule has been strongly questioned by Bynkershoek and Pothier.
2 "Si licitum est, eo loco ubi contractum et celebratum est, ubique validum erit, effectumque habebit, sub eâdem exceptione, prejudicii aliis non creandi." Huberus, De Conflict. Leg. 1. i. tit. 3, § 8. He puts, as an example of this exception, the case of parties going into another country, merely to evade the law of their own, as to majority and guardianship. "Sæpe fit, adolescentes sub curatoribus agentes, furtivos amores nuptiis conglutinare cupientes, abeant in Frisiam Orientalem, aliave loca, in quibus curatorum consensus ad matrimonium non requiritur, juxta leges Romanas, quæ apud nos hâc parte cessant. Celebrant ibi matrimonium, et mox redeunt in patriam. Ego ita existimo, hanc rem manifeste pertinere ad eversionem juris nostri; et ideo non esse magistratûs, huic obligatos, è jure gentium, ejusmodi nuptias agnoscere et ratas habere. Multoque magis statuendum est, eos contra jus gentium facere videri, qui civibus alieni imperii suâ facilitate, jus patriis legibus contrarium, scientes, volentes, impertiuntur." De Conflict. Leg. Idem.
recognized between the different States of the American Union, upon similar grounds of public policy.1 (a)
French law. On the other hand, the age of consent required by the French Civil Code is considered, by the law of France, as a personal quality of French subjects, following them wherever they remove; and, consequently, a marriage by a Frenchman, within the required age, will not be regarded as valid by the French tribunals, though the parties may have been above the age required by the law of the place where it was contracted.2 (b)
3. Wherever, from the nature of the contract itself, or the law of the place where it is made, or the expressed intention of the parties, the contract is to be executed in another country, every thing which concerns its execution is to be determined by the law of that country. Those writers who affirm that this exception extends to every thing respecting the nature, the validity, and the interpretation of the contract, appear to have erred, in supposing that the authorities are at variance on this question. They will be found, on a critical examination, to establish the distinction between what relates to the validity and interpretation, and what relates to the execution of the contract. By the usage of nations, the former is to be determined by the lex loci contractus, the latter by the law of the place where it is to be carried into execution.3
1 Haggard's Consist. Rep. vol. ii. p. 428-433. Kent's Commentaries, vol. ii. p. 93.
(a) [Story on Conflict of Laws, § 89. The same doctrine has been applied in Massachusetts, to admit the legitimacy of the issue of a person who had been divorced à vinculo for adultery, and had been declared by the local law incompetent to marry again, but who had gone into a neighboring State, and there contracted a new marriage, and had issue by that marriage; and the widow by such second marriage has, likewise, been declared entitled to dower in the real estate of her husband. Id. §§ 123, 124.]
2 Merlin, Repértoire, tit. Loi, § 6. Toullier, Droit Français, tom. i. No. 118,
(b) ["There can be little doubt that foreign countries, where such marriages are celebrated, will follow their own law and disregard that of France." Story on Conflict of Laws, § 90. For a resumé of the laws of the States which have, and of those which have not, adopted the principle of the French Code, see Fœlix, Des Mariages Contractés en Pays Étranger. Rev. Etr. et Franç. tom. viii. p 633.] 3 Fœlix, Droit International Privé, § 74.
§ 8. Lex
4. As every sovereign State has the exclusive right of regulating the proceedings, in its own courts of justice, fori. the lex loci contractus of another country cannot apply to such cases as are properly to be determined by the lex fori of that State where the contract is brought in question.
Thus, if a contract made in one country is attempted to be enforced, or comes incidentally in question, in the judicial tribunals of another, every thing relating to the forms of proceeding, the rules of evidence, and of limitation, (or prescription,) is to be determined by the law of the State where the suit is pending, not of that where the contract is made.1 (a)
§ 9. For
ereign, his ambassador, army, or
III. The municipal institutions of a State may also operate beyond the limits of its territorial jurisdiction, eign sovin the following cases: 1. The person of a foreign sovereign, going into the fleet, within territory of another State, is, by the general usage and of another comity of nations, exempt from the ordinary local juris- State. diction. Representing the power, dignity, and all the sovereign
1 Kent's Commentaries, vol. ii. p. 459, 5th ed. Fœlix, Droit International Privé, § 76.
(a) [The rule of the Supreme Court of the United States always has been that the laws of a foreign country, designed only for the direction of its own affairs, are not to be noticed by other countries, unless proved as facts; and that the sanction of an oath is required for their establishment, unless they can be verified by some other authority, that the law respected not less than the oath of an individual. The Court decided that the Code Civil, which is contained in one of the volumes of the "Bulletin des Lois, à Paris, l'imprimerie royale," with the indorsement, "Le Garde des Sceaux de France, à la Cour Suprême des États Unis,” which was sent to the Supreme Court in the course of our national exchanges of laws with France, which Congress had acknowledged, and to reciprocate which they had made an appropriation, was authenticated in such a way as that it might be received by the Court, for the purpose of proving what the law of France was in the case under consideration. Howard's Reports, vol. xiv. p. 429. Ennis et al. v. Smith et al.
By the 69th article, § 9, of the French Code of Civil Procedure, in case of proceedings against foreigners, a copy of the writ (exploit) is required to be sent to the department of Foreign Affairs. This is done in order that it may reach the party interested; and the rule is, for the department to send it to the proper French Diplomatic Agent, to be delivered to the Ministry of Foreign Affairs of the government to which he is accredited. Fœlix, Droit International Privé, § 150.]
attributes of his own nation, and going into the territory of another State, under the permission which (in time of peace) is implied from the absence of any prohibition, he is not amenable to the civil or criminal jurisdiction of the country where he temporarily resides.1
2. The person of an ambassador, or other public minister, whilst within the territory of the State to which he is delegated, is also exempt from the local jurisdiction. His residence is considered as a continued residence in his own country, and he retains his national character, unmixed with that of the country where he locally resides.2
3. A foreign army or fleet, marching through, sailing over, or stationed in the territory of another State, with whom the foreign sovereign to whom they belong is in amity, are also, in like manner, exempt from the civil and criminal jurisdiction of the place.3 (a)
If there be no express prohibition, the ports of a friendly State are considered as open to the public armed and commissioned ships belonging to another nation, with whom that State is at peace. Such ships are exempt from the jurisdiction of the local tribunals and authorities, whether they enter the ports under the license implied from the absence of any prohibition, or under an express permission stipulated by treaty. But the private vessels
1 Bynkershoek, de Foro Legat. cap. iii. cap. ix.
2 Vide infra, Pt. III. ch. 1.
3 "Exceptis tamen ducibus et generalibus, alicujus exercitûs, vel classis maritimæ, vel ductoribus etiam alicujus navis militaris, nam isti in suos milites, gentem, et naves, libere jurisdictionem sive voluntariam sive contentiosam, sive civilem, sive criminalem, quod occupant tanquam in suo proprio, exercere possunt," etc. Casaregis, Disc. 136, 174.
(a) [It is a sufficient answer to a suit brought against a foreign functionary, for seizing a vessel as such functionary, that it was done by virtue of the powers vested in him by his government. Opinions of Attorneys-General, June, 1794, vol. i. p. 46, Collot's case. And, in a subsequent case, the Attorney-General gave it as his opinion, that "it is as well settled in the United States as in Great Britain, that a person acting under a commission from the sovereign of a foreign nation is not amenable for what he does, in pursuance of his commission, to any judiciary tribunal in the United States." Id. December, 1797, vol. i. p. 81. The case, which arose in 1840, growing out of the arrest, by the State authorities of New York, of an Englishman charged with arson and murder, in connection with the capture and destruction, in the preceding year, within the juris
of one State, entering the ports of another, are not exempt from the local jurisdiction, unless by express compact, and to the extent provided by such compact.
preme Court ed States, in
the case of
The above principles, respecting the exemption of vessels belonging to a foreign nation from the local of the Sujurisdiction, were asserted by the Supreme Court of the of the UnitUnited States, in the celebrated case of The Exchange, a vessel which had originally belonged to an American can ship, citizen, but had been seized and confiscated at St. Se- 1810, at St. bastien, in Spain, and converted into a public armed Sebastien, vessel by the Emperor Napoleon, in 1810, and was Napoleon. reclaimed by the original owner, on her arrival in the port of Philadelphia.
by order of
In delivering the judgment of the Court in this case, Mr. Chief Justice Marshall stated that the jurisdiction of courts of justice was a branch of that possessed by the nation as an independent sovereign power. The jurisdiction of the nation, within its own territory, is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty, to the same extent, in that power which could impose such restriction.
All exceptions, therefore, to the full and complete power of a nation, within its own territories, must be traced up to the consent of the nation itself. They could flow from no other legiti
diction of that State, of a steamboat employed by the Canadian insurgents, led to a diplomatic discussion of this subject, as well as to the examination, by Mr. Wheaton, of the questions involved, in the principal legal journal of France. The local authorities refused to discharge the accused without trial; but the failure to convict him, by the verdict of the jury, put a practical termination to the controversy. And to prevent the recurrence of transactions of this nature, by which the action of one of the States might jeopard the foreign relations of the Federal Government, the Act of 29th August, 1842, was passed, for bringing such cases under the cognizance of the United States' judges, at the inception of the proceedings. Webster's Works, vol. ii. pp. 119, 120. Id. vol. v. pp. 116, 120 125, 133. Id. vol. vi. pp. 254, 266. Rev. Etr. & Fr. tome ix. p. 81 - De la juridiction qui s'est présentée devant les Cours des États Unis, dans l'affaire de McLeod. U. S. Statutes at Large, vol. v. p. 539.]