Effect of bankrupt discharge in another country. indeed, lays down the contrary doctrine, upon the ground that the foreign law, in this case, does not affect the territory immediately, but only in an incidental manner, and that by the implied consent of the sovereign, for the benefit of his subjects, without prejudicing his or their rights. But the practice of nations is certainly different, and therefore no such consent can be implied to waive the local law which has impressed certain indelible qualities upon immoveable property within the territorial jurisdiction.14 By the general international law of Europe and America, a certificate of discharge obtained by a bankrupt in the counand title of try of which he is a subject, and where the contract was assignees made and the parties domiciled, is valid to discharge the debtor in every other country; but the opinions of jurists and the practice of nations have been much divided upon the question how far the title of his assignees or syndics will control his personal property situate a foreign country, and prevent its being attached and distributed under the local laws in a different course from that prescribed by the bankrupt code of his own country. According to the law of most European countries, the proceeding which is prior in point of time is deemed prior in point of right, and draws to itself the right to take and distribute the property. The rule thus established is rested upon the general principle that personal (or moveable) property is, by a legal fiction, considered as situate in the country where the bankrupt had his domicil. The international bankrupt law of America considers the lex loci rei sitæ as prevailing over the lex domicilii in respect to creditors, and that the laws of other states cannot be permitted to have an extra-territorial operation to the prejudice of the authority, rights, and interests of the state where the property lies. The supreme court of the United States has therefore determined that both the government under its prerogative priority, and private creditors attaching under the local laws, are to be preferred to the claim of the assignees for the benefit of the general creditors under a foreign bank 14 Kent's Commentaries on American Law, vol. ii. pp. 183, 184, Note. rupt law, although the debtor was domiciled and the contract made in a foreign country.15 3. The general rule as to the application of personal statutes yields in some cases to the operation of the lex loci con tractus. Thus a bankrupt's certificate under the laws of his own country cannot operate in another state, to discharge him. from his debts contracted with foreigners in a foreign country. And though the personal capacity to enter into the nuptial contract as to age, consent of parents, and prohibited degrees of affinity, &c. is generally to be governed by the law of the state of which the party is a subject, the marriage ceremony is always regulated by the law of the place where it is celebrated; and if valid there, it is considered as valid every where else, unless made in fraud of the laws of the country of which the parties are domiciled subjects. II. The municipal laws of the state may also operate beyond its territorial jurisdiction, where a contract made within the territory comes either directly or incidentally in question in the judicial tribunals of a foreign state. A contract, valid by the law of the place where it is made, is, generally speaking, valid every where else. The general comity and mutual convenience of nations has established the rule that the law of that place governs in every thing respecting the form, interpretation, obligation, and effect of the contract, wherever the authority, rights, and interests of other states and their citizens are not thereby prejudiced. § 8. Lex loci contractus This qualification of the rule suggests the exceptions which Exceparise to its application. And, 1. It cannot apply to cases properly governed by the lex loci rei sitæ, (as in the case before put of the effect of a nuptial contract upon real property in a foreign state,) or by the laws 15 Bell's Commentaries on the Law of Scotland, vol. ii. pp. 681-687. Rose's Cases in Bankruptcy, vol. i. p. 462. Kent's Commentaries on Ameri. can Law, vol. ii. pp. 393, 404–408, 459. Cranch's Rep. vol. v. p. 289, Harrison v. Sterry. Wheaton's Rep. vol. xii. pp. 153–163, Ogden v. Saunders. tions to its operation. Foreign of another state relating to the personal state and capacity of its citizens. 2. It cannot apply where it would injuriously conflict with the laws of another state relating to its police, its public health, its commerce, its revenue, and generally its sovereign authority, and the rights and interests of its citizens. Thus if goods are sold in a place where they are not prohibited, to be delivered in a place where they are prohibited, although the trade is perfectly lawful by the lex loci contractus, the price cannot be recovered in the state where the goods are deliverable, because to enforce the contract there would be to sanction a breach of its own commercial laws. But the tribunals of one country do not take notice of, or enforce, either directly or incidentally, the laws of trade or revenue of another state, and 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.16 A marriage contracted in a foreign country, by a fraudumarriages. lent evasion of the laws of the state to which the parties belong, might seem, on principle, to be void in the country of their domicil, though valid under the laws of the place where the marriage is contracted. 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. These cases seem to form exceptions to the general operation of the lex loci contractus, which no state is bound to admit where it injuriously affects its sovereign authority, or the rights and interests of its citizens. But according to the international marriage 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 16 Pardessus, Droit Commercial, pt. vi. tit. 7, ch. 2, § 3. Emerigon, Traité d'Assurance, tom. i. pp. 212–215. Park on Insurance, p. 341. Sixth Ed. The moral equity of this rule has been strongly questioned by Bynkershoek and Pothier. 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 to be determined by the law of the place where it was made. The same principle has been recognised between the different states of the American Union, upon similar grounds of public policy.17 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.18 3. As every sovereign state has the exclusive right of regulating the proceedings in its own courts of justice, 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 was made.19 III. The municipal institutions of a state may also operate beyond the limits of its territorial jurisdiction, in the following cases : 17 Haggard's Consist. Rep. vol. ii. pp. 428-433. Kent's Commentaries, vol. ii. p. 93. 18 Merlin, Repertoire, tit. Loi, § 6. Toullier, Droit Français, tom. i. No. 118,576. 19 Kent's Commentaries, vol. ii. p. 462, Second Ed. army, or fleet, within the terri ther state. 1. The person of a foreign sovereign going into the territory of another state is, by the general usage and comity of nations, tory of ano- exempt from the ordinary local jurisdiction. Representing the power, dignity, and all the sovereign 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.20 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.21 3. A foreign army, or fleet, marching through, sailing over, or stationed in the territory of another state with whom the foreign sovereign is in amity, are also in like manner exempt from the civil and criminal jurisdiction of the place.22 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 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. Nor does the exemption of foreign public ships, coming into the waters of a neutral state, from the local jurisdiction, extend to their prize ships or goods captured by armaments fitted out in its ports in violation of its neutrality.23 20 Bynkershoek, de Foro Legat. cap. iii. § 13. cap. ix. § 10. 21 Vide infra, pt. iii. ch. 1. 22 Casaregis, Disc. 136-174. 23 Vattel, liv. i. ch. 19, § 216. Cranch's Rep. vol. vii. p. 116. The Exchange. |