CONFLICT OF LAWS. This phrase is used to signify that the laws of different
countries, on the subject-matter to be decided, are in opposition to each
other; or that certain laws of the same country are contradictory.
2. When this happens to be the case, it becomes necessary to decide
which law is to be obeyed. This subject has occupied the attention and
talents of some of the most learned jurists, and their labors are comprised
in many volumes. A few general rules have been adopted on this subject,
which will here be noticed.
3. - 1. Every nation possesses an exclusive sovereignty and
jurisdiction within its own territory. The laws of every state, therefore,
affect and bind directly all property, whether real or personal, within its
territory; and all persons who are resident within it, whether citizens or
aliens, natives or foreigners; and also all contracts made, and acts done
within it. Vide Lex Loci contractus; Henry, For. Law, part 1, c. 1, 1; Cowp.
It. 208; 2 Hag. C. R. 383. It is proper, however, to observe, that
ambassadors and other public ministers, while in the territory of the state
to, which they are delegates, are exempt from the local jurisdiction. Vide
Ambassador. And the persons composing a foreign army, or fleet, marching
through, or stationed in the territory of another state, with whom the
foreign nation is in amity, are also exempt from the civil and criminal
jurisdiction of the place. Wheat. Intern. Law, part 2, c. 2, Sec. 10;
Casaregis, Disc. 136-174 vide 7 Cranch, R. 116.
4. Possessing exclusive authority, with the above qualification, a
state may regulate the manner and circumstances, under which property,
whether real or personal, in possession or in action, within it shall be
held, transmitted or transferred, by sale, barter, or bequest, or recovered
or enforced; the condition, capacity, and state of all persons within it the
validity of contracts and other acts done there; the resulting rights and
duties growing out of these contracts and acts; and the remedies and modes
of administering justice in all cases. Story, Confl. of Laws, Sec. 18;
Vattel, B. 2, c. 7, Sec. 84, 85; Wheat. Intern. Law, part 1, c. 2, Sec. 5.
5. - 2. A state or nation cannot, by its laws, directly affect or bind
property out of its own territory, or persons not resident therein, whether
they are natural born or naturalized citizens or subjects, or others. This
result flows from the principle that each sovereignty is perfectly
independent. 13 Mass. R. 4. To this general rule there appears to be an
exception, which is this, that a nation has a right to bind its own citizens
or subjects by its own laws in every place; but this exception is not to be
adopted without some qualification. Story, Confl. of Laws, Sec. 21; Wheat.
Intern. Law, part 2, c. 2, Sec. 7.
6. - 3. Whatever force and obligation the laws of one, country have in
another, depends upon the laws and municipal regulations of the latter; that
is to say, upon its own proper jurisprudence and polity, and upon its own
express or tacit consent. Huberus, lib. 1, t. 3, Sec. 2. When a statute, or
the unwritten or common law of the country forbids the recognition of the
foreign law, the latter is of no force whatever. When both are silent, then
the question arises, which of the conflicting laws is to have effect.
Whether the one or the other shall be the rule of decision must necessarily
depend on a variety of circumstances, which cannot be reduced to any certain
rule. No nation will suffer the laws of another to interfere with her own,
to the injury of her own citizens; and whether they do or not, must depend
on the condition of the country in which the law is sought to be enforced,
the particular state of her legislation, her policy, and the character of
her institutions. 2 Mart. Lo. Rep. N. S. 606. In the conflict of laws, it
must often be a matter of doubt which should prevail; and, whenever a doubt
does exist, the court which decides, will prefer the law of its own country
to that of the stranger. 17 Mart. Lo. R. 569, 595, 596. Vide, generally,
Story, Confl. of Laws; Burge, Confl. of Laws; Liverm. on Contr. of Laws;
Foelix, Droit Intern.; Huberus, De Conflictu Leguin; Hertius, de Collisions
Legum; Boullenois, Traits de la personnalite' et de la realite de lois,
coutumes et statuts, par forme d'observations; Boullenois, Dissertations sur
des questions qui naissent de la contrariete des lois, et des coutumes.