foreigners within the territory, wherever the cause of action may have residing within the originated. territory. This general principle is entirely independent of the rule of decision which is to govern the tribunal. The rule of decision may be the law of the country where the judge is sitting, or it may be the law of a foreign state in cases where it applies; but that does not affect the question of jurisdiction, which depends, or may be made to depend, exclusively upon the residence of the party. Depends The operation of the general rule of international law as upon muto civil jurisdiction, extending to all persons, who owe even nicipal regulations. a temporary allegiance to the state, may be limited by the positive institutions of any particular country. It is the duty as well as the right of every nation to administer justice to its own citizens; but there is no uniform and constant practice of nations as to taking cognizance of controversies between foreigners. It may be assumed or declined, at the discretion of each state, guided by such motives as may influence its juridical policy. All real and possessory actions may be brought, and indeed must be brought, in the place where the property lies: but the law of England, and of other countries where the English common law forms the basis of the local jurisprudence, considers all personal actions, whether arising ex delictu or ex contractu, as transitory; and permits them to be brought in the domestic forum, whoever may be the parties, and wherever the cause of action may originate. This rule is supported by a legal fiction, which supposes the injury to have been inflicted, or the contract to have been made, within the local jurisdiction. In the countries which have modelled their municipal jurisprudence upon the Roman civil law, the maxim of that code, Actor sequitur forum rei, is generally followed, and personal actions must therefore be brought in the tribunals of the place where the defendant has acquired a fixed domicil. Law of England and America. French law. By the law of France, foreigners who have established their domicil in the country by special license (autorisation) of the king are entitled to all civil rights, and, among others, to that of suing in the local tribunals as French subjects. Under other circumstances, these tribunals havé jurisdiction where foreigners are parties in the following cases only:1. Where the contract is made in France, or elsewhere, between foreigners and French subjects. 2. In commercial matters, on all contracts made in France, with whomsoever made, where the parties have elected a domicil, in which they are liable to be sued, either by the express terms of the contract, or by necessary implication resulting from its nature. 3. Where foreigners voluntarily submit their controversies to the decision of the French tribunals, by waiving a plea to the jurisdiction. In all other cases where foreigners, not domiciled in France by special license of the king, are concerned, the French tribunals decline jurisdiction, even when the contract is made in France.47 The practice which prevails in some countries of proceeding against absent parties, who are not only foreigners, but have not acquired a domicil within the territory, by means of some formal public notice, like that of the viis et modis of the Roman civil law, without actual personal notice of the suit, cannot be reconciled with the principles of international justice. So far indeed as it merely affects the specific property of the absent debtor within the territory, attaching it for the benefit of a particular creditor, who is thus permitted to gain a preference by superior diligence, or for the general benefit of all the creditors who come in within a certain fixed period, and claim the benefit of a rateable distribution, such a practice may be tolerated, and in the administration of international bankrupt law is frequently allowed to give a preference to the attaching creditor against the law of what is termed the locus concursûs creditorum, which is the place of the debtor's domicil. 47. Code Civil, art. 13, 14, 15. sur le Code Civil. tom. i. p. 48. Code de Commerce, art. 631. Discussions p. 2. Valin, sur l'Ord. de la Marine, tom. i. pp. 113, 253, 254. Pardessus, Droit Commercial, pt. vi. tit. 7, ch. 1, § 1. § 22. Distinction between Where the tribunal has jurisdiction, the rule of decision is the law applicable to the case, whether it be the municipal the rule of or a foreign code; but the rule of proceeding is generally decision in cases of contract. and rule of determined by the lex fori of the place where the suit is proceeding pending. But it is not always easy to distinguish the rule of decision from the rule of proceeding. It may, however, be stated in general, that whatever belongs to the obligation of the contract is regulated by the lex domicilii or the lex loci contractus, and whatever belongs to the remedy for enforcing the contract is regulated by the lex fori. Obligation and reme dy. If the tribunal is called upon to apply to the case, the law of the country where it sits, as between persons domiciled in that country, no difficulty can possibly arise. As the obliga'tion of the contract and the remedy to enforce it are both derived from the municipal law, the rule of decision and the rule of proceeding, must be sought in the same code. In other cases it is necessary to distinguish with accuracy between the obligation and the remedy. The obligation of the contract, then, may be said to consist of the following parts: 1. The personal capacity of the parties to contract. 2. The will of the parties expressed as to the terms and conditions of the contract. 3. The external form of the contract. The personal capacity of parties to contract depends upon those personal qualities which are annexed to their civil condition by the municipal law of their own state, and which travel with them wherever they go, and attach to them in whatever foreign country they are temporarily resident. Such are the privileges and disabilities conferred by the lex domicilii in respect to majority and minority, marriage and divorce, sanity or lunacy, and which determine the capacity or incapacity of parties to contract independently of the law of the place where the contract is made, or that of the place where it is sought to be enforced. It is only those universal personal qualities, which the laws of all civilized nations concur in considering as essentially affecting the capacity to contract, which are exclusively regulated by the lex domicilii, and not those particular prohibitions or disabilities which are arbitrary in their nature and founded upon local policy, such as the prohibition in some countries of noblemen and ecclesiastics from engaging in trade and forming commercial contracts. The quality of a major or minor, of a married or single woman, &c,, are universal personal qualities, which, with all the incidents belonging to them, are ascertained by the lex domicilii, but which are also every where recognised as forming essential ingredients in the capacity to contract.48 cy. How far bankruptcy ought to be considered as a privilege Bankruptor disability of this nature, and thus be restricted in its operation to the territory of that state under whose bankrupt code the proceedings take place, is, as already stated, a question of difficulty, in respect to which no constant and uniform usage prevails among nations. Supposing the bankrupt code of any country to form a part of the obligation of every contract made in that country with its citizens, and that every such contract is subject to the implied condition that the debtor may be discharged from his obligation in the manner prescribed by the bankrupt laws, it would seem on principle that a certificate of discharge ought to be effectual in the tribunals of any other state where the creditor may bring his suit. If, on the other hand, the bankrupt code merely forms a part of the remedy for a breach of the contract, it belongs to the lex fori, which cannot operate extra-territorially within the jurisdiction of any other state having the exclusive right of regulating the proceedings in its own courts of justice; still less can it have such an operation where it is a mere partial modification of the remedy, such as an exemption from arrest and imprisonment of the debtor's person on a cessio bonorum. Such an exemption being strictly local in its nature, and to be administered in all its details by the tribunals of the state creating it, cannot form a law for those of any foreign state. But if the exemption from arrest and imprisonment, instead of being merely contingent upon the 48 Pardessus, Droit Commercial, pt. vi. tit. 7, ch. 2, § 1. failure of the debtor to perform his obligation through insolvency, enters into and forms an essential ingredient in the original contract itself by the law of the country where it is made, it cannot be enforced in any other state by the prohibited means. Thus by the law of France, and other countries where the contrainte par corps is limited to commercial debts, an ordinary debt contracted in that country by its subjects cannot be enforced by means of personal arrest in any other state, although the lex fori may authorize imprisonment for every description of debts.49 The obligation of the contract consists, secondly, of the will of the parties expressed as to its terms and conditions. The interpretation of these depends, of course, upon the lex loci contractus, as do also the nature and extent of those implied conditions which are annexed by the local law or usage to the contract. Thus the rate of interest, unless fixed by the parties, is allowed by the law as damages for the detention of the debt, and the proceeding to recover these damages may strictly be considered as a part of the remedy. The rate of interest is, however, regulated by the law of the place where the contract is made, unless, indeed, it appears that the parties had in view the law of some other country. In that case, the lawful rate of interest of the place of payment, or to which the loan has reference by security being taken upon property there situate, will control the lex loci contractus.50 3. The external form of the contract constitutes an essential part of its obligation. This must be regulated by the law of the place of contract, which determines whether it must be in writing, or under seal, or executed with certain formalities before a notary or other public officer, and how attested. A want of compliance with these requisites renders the contract void ab initio, and being void by the law of the place, it cannot be carried into effect in any other state. But a mere fiscal regulation does not 49 Bosanquet and Puller's Rep. vol. i. p. 131. Melan v. the Duke of FitzJames. 50 Kent's Comm. on American Law, vol. ii. p. 460. Second edit. |