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natural rights and liabilities are of the law of nature, and are parcel of the law of nations; they are a species of universal law, and are binding upon, and are recognized and enforced in, the courts of all civilized countries, in times of peace. The enforcement thereof does not depend upon the citizenship or allegiance of the parties, nor upon the place or country in which the right of action accrues, but the same are enforceable in the courts of all other States and countries by implied permission in law, to sue against those thus liable who are there found.

Law of Nations and Universal Law. These principles of natural right and national law are common to the jurisprudence of all countries, as a part of the law of nations, or great communities of states and sovereignties, and are thereby a part of the domestic code of each, and by these the people of each are bound to those of the others, in their personal transactions.

They have grown up as a necessary result of commerce and intercourse between organized governments and courts which are foreign to and independent of each other. They are not mere creatures of comity, enforceable at the will of neighboring states, as matter of favor or good neighborhood, but are of as truly binding authority as are the local laws of each binding on its own citizens, subjects, officers and courts. They are of that part of the law of nations which are not only obligatory upon the sovereign or aggregate community, but are of an inter-state character in the transactions of individuals, and are a necessity as well of the social fabric as of inter-state intercourse, commerce and trade. They are not the creatures of special enactments, but are tacitly acknowledged and enforced in all civilized countries. Nor is the local law anywhere made to give way to their enforcement, for they are themselves a part of the local law by virtue of their universality. In the language of Sir William Black

* Moultrie r. Hunt, 23 N. Y. 394, 396. Justice DENIO, speaking in this case of the universal recognition of the title to personal property, says: “Every country enacts such laws as it sees fit as to the disposition of personal property, by its own citizens, either inter ciros or testamentary; but these laws are of no inherent obliga. tion in any other country. Still, all

civilized nations agree, as a general rule, to recognize titles to movable property created in other States or countries in pursuance of the laws ex. isting there, and by parties domiciled in such States or countries. This law of comity is parcel of the municipal law of the respective countries in which it is recognized.”

stone, these rules of law "result from the principles of natural justice in which all the learned of every nation agree,” and are in England adopted to their full extent by the common law, and are held to be the law of the land."i Such, too, they were, and still are, in the American States, irrespective of the national Constitution and Union. Though sometimes re-enacted, yet their re-enactment is not regarded as the introduction of new rules of law, but simply as declaratory of these rules of universal and national law, without which, as is well said by the same learned jurist, a state or kingdoin would “cease to be a part of the civilized world." * * “In mercantile questions, such as bills of exchange and the like; in all marine causes relating to freight, average, demurrage, insurance, bottomry, and others of a similar nature; and in the law merchant, which is a branch of the law of nations, they are regularly and constantly adhered to. So, too, in disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no rule of decision but this great universal law, collected from history and usage, and from such writers of all nations and languages as are generally approved and allowed of.”

“The law of nations,” says the same learned author, “is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each.”

Among the laws of inter-state general recognition may also be classed the laws of marriages and divorce, 4 by which such as are valid where consummated or obtained are regarded as valid in law in all other states, unless the marriage be polygamous, incestuous, immoral, or otherwise obnoxious to the moral senses of civilization.

Also, the law which requires the movable property of a person

* Black.'s Com. Book 4, 67.

Black.'s Com. Book 4, 67. Wheaton's International Law, ES 1-17; Woolsey's International Law, SS 3-5.

3 2 Kent, *92; Medway o. Needham, 16 Mass. 157; Stephenson v. Gray, 17 B. Mon. 193.

* Cheever o. Wilson, 9 Wall. 108,

who dies in testate to be distributed in accordance with the law of the country wherein was his domicile at the time of his death, irrespective of where the property may be, or of the place at which he may die; and which always regards movable property as disposable according to the law of the owner's domicile. 1

And, the equally well recognized principle that contracts valid by the law of the place where they are made, or lex loci contractus, are valid in every other country or State. The exceptions to this rule will be noticed hereafter, under the proper head in relation to contracts. So, also, we will notice others, under their proper order.


Ennis o. Smith, 14 How. 400, 465, 466.

Story on Conf. of Laws, § 273; Nelson 0. Fotterall, 7 Leigh. 201 ; Warder v. Arell, 2 Wash. (Va.) 282, 295. In this case, one of the earliest American decisions on the subject, the Court of Appeals of Virginia, ROANE, J., say: "This contract hav. ing been made in Pennsylvania, with. out a view to performance in any other State, the agreement made upon the trial of the cause, referring to those laws, was an act of supererogation, and entirely unnecessary, for it is clear that the laws of that country where a contract is made must govern the fate of it. The rule which I have just mentioned is laid down in the case

of Robinson o. Bland, 2 Burr. 1679, and is well explained and illustrated in Fonblanque's excellent •Treatise of Equity,' 2 vol. p. 443. It is true that the laws of one country have not, of themselves, an extra-territorial force in another; but, by the general assent of nations, they are always regarded, in contracts formed there. A distinc. tion, however, is attempted in this case, under the idea that this is a penal law, and that the courts of one coun. try will never execute the penal laws of another. The principle is true, but inapplicable. The law of 1777 points out a mode of discharging debts different from that which is custo. mary; it may produce an injury, but it is not therefore penal."






1. State and National Sovereignty. Duality and Unity of Government. We will now proceed under this and the subse. quent heads of the present chapter, to treat somewhat of the correlation of our government and courts; in doing which, being aware of the difficulty of the task, and of the sacred ground on which we tread, we will carefully confine ourselves to the law of adjudicated cases. We will endeavor to regard our complex, yet beautiful, system of interwoven State and national sovereignties and jurisprudence, not as embodying any actual conflict of law, but rather as an harmonious whole, composed of so many independent, yet kindred, parts, each moving in its own proper sphere, and not necessarily impeded, or interfered with, by the others, believing as we do, that if conflict occurs it is by reason of one or more of them departing from their proper spheres of action. The true line of demarcation between the respective powers

of State and national courts is not always very perceptible or easily defined, but, for that very reason, it devolves upon both to be cautious in the exercise of doubtful authority. 2

Paramount Authority of National Courts. Whenever a question of paramount jurisdiction arises, the national courts are, in

* Ex parte Holman, 29 Iowa, 88. Per DILLON, J.: “Each court must keep within its own orbit.” Id. p. 112. Cohens v. Virginia, 6 Wheat. 261, 419. In this case, our great and eminent

jurist, Chief Justice MARSHALL, says:

“ The national and State sys. tem are to be regarded as one whole.”

· Railroad Company 0. Flusen, 5 Otto, 465, 470, 474.

the very nature of things, as well as by the provisions of the Constitution, the supreme arbiters thereof. 1

In the case of Railroad Company v. Ilusen, the learned Judge Strong, realizing that imperfectness which is common to all created things, and therefore as affording no argument against the value of our duplex system of government, says, in relation to one of those respective powers: “What that power is, it is difficult to define with sharp precision, * * * and as its range sometimes comes very near to the field committed by the Constitution to Congress, it is the duty of the courts to guard vigilantly against any needless intrusion."2 The same may be said, with equal propriety, in reference to all doubtful questions incident to our governmental system. The line of approach must be carefully kept in the foreground, and any intrusion thereon inost vigilantly avoided.

Unity and Duality of Our Government. Though the citizens of the several States are one people and one nation, under the unity of the national government as the supreme authority within the limitations of the Constitution,3 yet the States themselves are severally sovereign, independent, and foreign to each other, in regard to their internal and domestic affairs.4 Such being the case, it results therefrom that the State constitutions and laws have no extra-territorial force, anywhere, except as conceded to them by mere comity.; Were it otherwise, their condition would be incompatible with State sovereignty and independence of each other, inasinuch as the extra-territorial force of the laws of one within the territorial boundaries of an

Pensacola Telegraph Co. v. Western Union Tel.Co., 6 Otto, 1 and 10.

5 Otto, 470, 474. 3 McCulloch o. Maryland, 4 Wheat. 316; Dodge v. Woolsey, 18 How. 336, 317; Lonsdale v. Brown, 4 Wash. C. C. 86; Buckner v. Finley, 2 Pet. 586; Bank of U. S. o. Daniel, 12 Pet. 32; Rhode Island v. Massachusetts, 12 Pet. 657; Warder v. Arell, 2 Wash. (Va.) 282, 298; U. S. v. Reese, 2 Otto, 214, 217; U. S. o. Cruikshank, 2 Otto, 542, 550; Crandall 0. Nevada, 6 Wall. 35, 43; Cohens v. Virginia, 6 Wheat. 414, 419.

* Cohens v. Virginia, 6 Wheat. 414; McIlvaine v. Coxe, 4 Cr. 209; Bank of the U. S. v. Daniel, 12 Pet. 32; U. S. v. Cruikshank, 2 Otto, 542, 550; Buckner v. Finley, 2 Pet. 586; Pen. · noyer v. Neff, 5 Otto, 714.

5 Bank of Augusta v. Earle, 13 Pet 519; Blanchard v. Russell, 13 Mass. 1; Kentucky x. Bassford, 6 Hill, 527. Seymour v. Butler, 8 Iowa, 304; Pen. noyer v. Neff, 5 Oito, 714; Cleveland. Painesville & Ash, R. R. Co. o. Penn. sylvania, 15 Wall. 300; Foster v. Glaz ener, 27 Ala. 391.

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