prohibited trade may be enforced in the tribunals of any other country than that where it is prohibited by the local laws. (a) 52 § 92. Huberus holds that the contract of marriage is to marriages. be governed by the law of the place where it is celebrated, excepting fraudulent evasions of the law of the State to which the party is subject. (a) Such are marriages contracted in a foreign Foreign Emérigon, Traité edit. The moral (a) Pardessus, Droit Commercial, part. vi. tit. 7, ch. 2, § 3. d'Assurance, tom. i. pp. 212–215. Park on Insurance, 341, 6th equity of this rule has been strongly questioned by Bynkershoek and Pothier. [52 Story, in his Conflict of Laws, regrets this state of the law, but admits it to be settled too firmly perhaps to be shaken, except by legislation. Conflict of Laws, § 257. Westlake, also (Pr. Intern. Law, § 199), condemns the principle, and gives his opinion that each nation should refuse to take cognizance of a contract which has for its object the violation of the revenue or navigation laws of another, or indemnity for losses incurred by such violation. Heffter (Europ. Völker. §§ 36-39) takes the same view of what the law should be, and cites a case decided by the Court of Appeals for the Rhenish provinces, to the effect that a contract to smuggle goods into another country was void as against good morals and the public interests. Of the same opinion are Pothier (Assurance, n. 58), Kent (Comm. iii. 266-8), Marshall (Insurance, 59-61), and Chitty (Commerce, 83). This rule probably had its origin in the rival, retaliatory, and often permanently hostile navigation and revenue systems of the great commercial nations. The unwillingness of the courts of the United States to give effect to foreign bankrupt-laws, against the interests of their own citizens, arose from a like jealousy of systems which foreign countries adopt and alter at their pleasure; for the courts of the United States give effect to voluntary conveyances of property by parties themselves. The same jealousy prevents courts enforcing the purely political laws of other nations, and has always excluded from treaties for extradition, with the utmost care, the cases of persons charged with any other than offences against the general morality of nations. But courts in the United States have held that contracts are void, if made in the United States with a view to excite war or insurrection in a friendly State, or to furnish military supplies to citizens of a State at war with a State friendly to the United States. Kennett v. Chambers, Howard's Rep. xiv. 38. So of a contract made in one State which contemplates a violation of the police-laws for the preservation of health or morals of another State. Terrett v. Bartlett, Vermont Rep. xxi. 184. Spalding v. Preston, Ib. 9. See also Grell v. Levy, Jurist x. N.s. 210.]— D. (a) "Si licitum est, eo loco ubi contractum et celebratum est, ubique validum erit, effectumque habebit, sub eadem 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 hac 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 magistratus, 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 sua facilitate, jus patriis legibus contrarium, scientes, volentes, impertiuntur." De Conflict. Leg., Id. § 123. 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 law of the English law. 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.53 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 recognized between the different States of the American Union, upon similar grounds of public policy. (b)54 § 93. On the other hand, the age of consent required French law. 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. (a) 55 [53 By the act of 19 & 20 Vict. ch. 96, "no irregular marriage contracted in Scotland by declaration, acknowledgment, or ceremony, shall be valid, unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in Scotland twenty-one days next preceding such marriage." Stephens's (Blackstone's) Commentaries, ii. 269.]—D. (b) Haggard's Cons. Rep. ii. 428-433. Kent's Commentaries, ii. 93. [54 Story's Conflict of Laws, § 124, Redfield's note 5. Burge's Col. and For. Laws, i. 192. Woolsey's Introd. § 74. Halleck's Intern. Law, 157. Steele v. Braddell, Milw. Cons. Rep. i. 1. Warrenden v. Warrenden, Blight's Rep. ix. 129. Brook v. Brook, House of Lords Cases, ix. Fergusson on Marr. and Div. 63. Medway v. Needham, Massachusetts Rep. xvi. 157. Putnam v. Putnam, Pick. Rep. viii. 433. W. Cambridge v. Lexington, Pick. Rep. i. 506.]—D. (a) Merlin, Répertoire, tit. Loi, § 6. Toullier, Droit Français, tom. i. Nos. 118, 576. [55 The Cour Impériale, in 1861, enforced this rule in the case of the marriage of Jerome Bonaparte to Miss Patterson, contracted in the United States in 1803, valid by the law of the place of celebration. Jerome Bonaparte had not attained the required age; and official notice of the disability under the French law had been given to the parents of the bride before the marriage. The Pope refused to annul this marriage, on the application of Napoleon I. Jerome, notwithstanding, married a princess of Würtemberg, his American wife being alive. The case arose on a claim of the son by the American marriage, Jerome Napoleon Bonaparte, to a share in the division of his 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 contractûs, the latter by the law of the place where it is to be carried into execution. (b) 56 Lex fori. § 94. 4. As every sovereign State has the exclusive right of regulating the proceedings, in its own courts of justice, the lex loci contractûs 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. (a)57 father's estate. The French rule would have no effect out of France. Story's Conflict of Laws, § 90. The British Royal-Marriage Act prohibits marriage by certain members of the royal family without the consent of the sovereign. Under this, it was held that the marriage of His Royal Highness the Duke of Sussex, celebrated at Rome, and admitted to be valid there, was void in England, the consent of the sovereign having been withheld. See Westlake, Pr. Intern. Law, § 348. British statutes give the same validity as if celebrated in England to marriages solemnized abroad, in the chapels or houses of ambassadors, or before resident consuls, or chaplains in the army within their lines. 4 Geo. IV., and 12 & 13 Vict. A statute of the United States of 1860 gives efficacy to marriages before American consuls, as if celebrated at home. For the details of the decisions of the conflicts of laws respecting marriage, see Bishop on Marr. and Div. § 125. Story's Conflict of Laws, § 113. Opinions of Attorneys-General (U. States), vii. 22.] — D. (b) Fölix, Droit International Privé, § 74. [56 Story's Conflict of Laws, §§ 242, 260, 263–266, 279 a, 280–283, 309, 314.]—D. (a) Kent's Commentaries, ii. 459, 5th edit. Fölix, Droit International Privé, § 76. [57 Story's Conflict of Laws, §§ 557-576. Savigny, § 374, p. 277. Don v. Lippman, C. C. & Fin. v. 1. Boullenois, Ob. 33, 46. Rodenburg, de Div. Stat. tit. 2. Woolsey's Introd. § 73.]—D. Foreign § 95. III. The municipal institutions of a State may also operate beyond the limits of its territorial jurisdic- sovereign, tion, in the following cases: his ambassador, army, or fleet, another State. 1. The person of a foreign sovereign, going into the within the territory of another State, is, by the general usage and territory of comity of nations, 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. (a) 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. (b) 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. (c) 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.5 (a) Bynkershoek, de Foro Legat. cap. iii. § 13, and cap. ix. § 10. (b) Vide infrà, Part III. ch. 1. (c) "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. [58 The author is understood to have qualified this general statement respecting private vessels, in his review of Ortolan's Diplomatie de la Mer, in vol. ii. of the The ship § 96. The above principles, respecting the exemption Exchange. of vessels belonging to a foreign nation from the local jurisdiction, were asserted by the Supreme Court of the United States, in the celebrated case of The Exchange, a vessel which had originally belonged to an American citizen, but had been seized and confiscated at St. Sebastien, in Spain, and converted into a public armed vessel by the Emperor Napoleon, in 1810, and was reclaimed by the original owner, on her arrival in the port of Philadelphia.59 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 Revue Etr. et Franc. The treaty of 1853 between France and the United States adopts, as to private vessels, substantially the distinction made in the French law, as laid down and explained in § 102. The state of international law on the subject of private vessels in foreign ports is judiciously explained by Mr. Halleck in his treatise, pp. 171-2. It may be said to be this: So far as regards acts done at sea before her arrival in port, and acts done on board in port, by members of the crew to one another, and so far as regards the general regulation of the rights and duties of those belonging on board, the vessel is exempt from local jurisdiction; but, if the acts done on board affect the peace of the country in whose port she lies, or the persons or property of its subjects, to that extent that State has jurisdiction. The local authorities have a right to visit all such vessels, to ascertain the nature of any alleged occurrence on board. Of course, no exemption is ever claimed for injuries done by the vessel to property or persons in port, or for acts of her company not done on board the vessel, or for their personal contracts or civil obligations or duties relating to persons not of the ship's company.]-D. [59 In the case of the Charles et George (Martens' Causes Célèbres, v. 605), the French Government claimed the exemption of a public ship for a private vessel engaged on a private commercial enterprise, on the ground that she had on board an agent of the French Government to see that she did not violate the law of France forbidding the slave trade. The Portuguese Government had arrested the vessel for being engaged in that trade in Portuguese waters. The exemption was denied by Portugal, who yielded to the demand for restoration only on the ground of inability to resist the superior power of France. France refused to submit the case to arbitration. No European power offered aid to Portugal. The case has painfully the look of mere vis major.] — D. |