plied by the court,' involves the fallacy that the tribunal is to determine the rule of right for the action of the state, when the whole of jurisprudence is founded on the principle that the state determines the rule of right for the action of the tribunal.

§ 82. Judge Story, in his Conflict of Laws, § 31, accepts Huber's three maxims for the basis of private international law, but it will be seen that in translating the third maxim he introduces the word ought in a manner not strictly justified by the terms of the original; though, by so wording it, the real basis of the action of judicial tribunals is indicated. The maxim as given by Story, Confl. of L., § 29, is: "The rulers of every empire, from comity, admit that the laws of every people in force within its own limits, ought to have the same force every where, so far as they do not prejudice the powers or rights of other governments, or of their citizens." In Huber's statement, it is not said that the rectores imperii admit that foreign laws ought to have effect, or that it is right that they should have effect, &c. It is merely said that, in point of fact, they have allowed them to take effect. But the practice thus stated by Huber is, to the tribunal of the forum of jurisdiction, the indication that the national law-or the author of the national law, does consider that foreign laws ought to have that effect; and

1 13 Peters R., 589, by Taney, C. J., citing Story's Confl. of L., § 38. "It is not the comity of the court, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning by which all other principles of municipal law are ascertained and guided." 1 Greenleaf Evid., § 43.

Therefore, the idea of "comity of nations," "international comity," operating as a judicial rule, has been denominated by some authors a fiction of romance. Schaffner, §§ 29, 30, says: "From being jurists they became poets; inventing the fiction, that the comity of the nation was making place for the foreign law: or else-in instances of direct juridical contradiction between the two laws-they played the part of the statesman instead of that of the jurist; pointing out the commercial or other disadvantages which might accrue to the subjects of their own state if the foreign law should be disallowed.

"This romantic idea of the comitas gentium, originating in a misconception of the nature of law, and bearing a great resemblance to a blocus hermétique, lurks in many of the older treatises, and reappears even at the present day, as, for example, in Story's work. Now, if we observe closely how the principle of the comitas gentium has been carried out, we become aware, to our surprise, that it has never, in fact, been actually applied, or at least that in most of the supposed cases, some principle entirely distinct from the comitas has been appealed to. How could any consistent result be attained by following a conception so utterly vague and unjuristical. It is not possible, in fact, even approximately, to decide correctly the simplest question of international private law by this principle. Where is the beginning of the end of comity? How can questions of law be answered according to political considerations which are of all others he most fluctuating?" (Transl.)

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therefore, it is also to that tribunal its authorization in realizing or maintaining the rights and obligations belonging to the relation created by the foreign law. If the state to which the tribunal belongs had not indicated its approval of this customary action of states or nations, the court or tribunal would have no power, from the practice here stated, to maintain the effects of foreign laws: whatever view it might take of the demands of international comity, and the prospect of reciprocal advantage. This indication is found in the customary law of such state; which, as has been shown in the first chapter, § 36, recognizes other civilized states or nations as the legitimate expositors of natural reason, and requires its tribunals to recognize a universal jurisprudence, a historical law of nations, ascertained from the practice of all civilized nations. The motives for that practice are immaterial. It is the customary law of the land, derived from the legislative and juridical practice of nations, having an international effect, which the tribunal applies under this rule; not the considerations of duty or of advantage which may be supposed to operate on states and nations in regulating their conduct by any code of law, so called.

§ 83. M. Fœlix, in his Droit International Privé, ch. iii., Principes Fondamentaux, note, professes entire concurrence with Judge Story's view of the principle of comity. "La doctrine que nous exposons dans ce chapitre est celle de M. Story; nous l'adoptons complétement." And he expressly vindicates, the doctrine of a comity of nations-international comity applicable by the tribunals; that is, makes the question-what does comity require? a question for courts of law to decide. In §11, his language is "Les legislateurs, les authorités publiques, les tribunaux et les auteurs, en admettant l'application des lois étrangères, se dirigent non pas d'après un devoir de nécessité, d'après une obligation dont l'execution peut être exigée, mais uniquement d'après des considerations de utilité et de convenance réciproque entre les nations (ex comitate gentium, ob reciprocam utilitatem,") &c.-going on to describe the motives which may and do operate on sovereign states, in allowing a foreign law to operate: but making no distinction between the functions of the judge and the legislator, and as appears in the

citation here given, even putting administrative officers-les autorités publiques, and the publicists-les auteurs, all in the same juridical position.

In another part of the same section, M. Fœlix speaks of the force of the practice of nations in this respect as a juridical authority; meaning, apparently, that this practice is the warrant for the admission or application of foreign laws by judicial tribunals.—“ Mais ce qu'il y a de certain c'est qu'aujourd'hui toutes les nations ont adopté en principe, l'application dans leurs territoires des lois étrangères, sauf toutefois les restrictions exigées par le droit de souveraineté et de l'intérêt de leur propres sujets." And near the end of the chapter-"L'usage des nations a établi, pour leur avantage réciproque, et dans certains cas, l'effet des lois étrangères;" without, however, stating explicitly whether the tribunal is bound to regulate its decisions by this "usage des nations," or is to consider comity and "avantage réciproque," before making the allowance.

§ 84. If it were simply stated that the custom of nations having been comiter—that is, either in a way which shows comity and good will, or prompted by comity and the hope of reciprocal advantage, to require their judicial tribunals to maintain the relations created by foreign laws when not contrary to the rule of right established by the local law, or, in the language of Huber-"quatenus nihil potestati et juri alterius imperantis aut ejusdem civium præjudicetur;" or, in the language of M. Fœlix-"sauf toutefois les restrictions exigées par le droit de souveraineté et de l'intérêt de leur propres sujets,”therefore the tribunals of any one nation are bound to carry out or maintain the relations created by foreign laws, there would be no practical objection to the allegation that the political cause of that admission is the good will of the nation and the prospect of reciprocal benefit; and there would be very little practical utility in the attempt which has here been made to discriminate the true theory of the judicial recognition of foreign laws. The question before the tribunal would, under either view, practically be decided by the same inquiry—that is, whether the relation created by the foreign law is contrary to the rule of right-potestati et juri contained in the local law, as

ANOTHER ERROR-ITS TENDENCY.

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before explained. But it is evident that the effect of basing the historical fact of this customary judicial recognition upon comity has been to induce judges to assume the part of diplomatists, acting for the state or nation in its integral political personality, and to decide matters of private right (the rights and obligations of private persons) by political considerations. And there is much in the writings of Story, Fœlix, and others, to sanction this practice.

This tendency, which is no where more apparent than in the juridical literature of the United States, has in a great degree been caused by the supposed necessity of a judicial protest against another misconception, entertained by some few writers on these questions, who hold that a state may be bound (as if by positive law) to admit foreign laws to operate within its territory, if not actually injurious to its political sovereignty. Story, Conf. of L. § 33, observes, "It has been thought by some jurists that the term 'comity' is not sufficiently expressive of the obligation of nations to give effect to foreign laws when they are not prejudicial to their own rights and interests. And it has been suggested that the doctrine rests on a deeper foundation; that it is not so much a matter of comity, or courtesy, as a matter of paramount moral duty," (citing Livermore: Dissertation on the contrariety of laws, p. 26 to p. 30.) But these jurists also make this supposed duty of the state the basis of the action of the tribunal. Now, the duty of the state is evidently beyond the action of its own judicial officers. The admission, to whatever degree it may be sanctioned by the state, may have resulted from motives of comity, or from a sense of duty. But if comity, or any thing else, is conceived of as a necessarily binding measure of the degree in which this judicial admission shall take place, then a rule, operating as positive law, is assumed to have determined the juridical action of the state, when, in jurisprudence the science of what law is, the action of the state is the only possible criterion of the rule. The comity of nations, operating as law within any one national jurisdiction, will be only whatever the possessor of supreme legislative power therein allows for comity, or by comity.

Jurists, who, on the other hand, have asserted that absolute

independence of the state in this matter which is a necessary consequence of fundamental principles, have apparently been unable to distinguish between the different positions of the state (acting under a law of the imperfect kind) and the tribunal (authorized only to apply positive law): not remembering that though the state is not bound to admit the foreign law, yet its tribunals may be bound to admit it or recognize its effects; though they are bound to do so, and can do so, only so far as the state may have indicated its will on the point. Therefore, in proposing to enforce that rule which the state has sanctioned as right, the tribunals have conceived themselves as determining also what the state ought to sanction as right. Or, to resort to the language of German (Kantian) metaphysics, the law they have applied in these cases has been a subjective and not an objective conception of the rule of action.'

'Waechter, on the Collision of the private laws of different States, (Archiv. f. d. Civil. Pr. B. 24, p. 238.) Transl.

"It is agreed on all hands, and our laws unmistakeably declare, that the law derives its validity from itself, from the moment of its being formally promulgated, unconditionally, and without reference to the subjective opinion of individual members of the state in respect to its intrinsic merit and accordance with justice; that the requisition of a constitutional form and the limits of a constitutional power alone determine its validity, and not the nature of a law according to subjective theories. The judge is simply the instrument of legislative will, declared in a certain formally legal manner, (the common will, to which each individual will in the state must be unconditionally subject) and this law it is the province of the judge to apply, without considering whether it is just or unjust, suitable or unsuitable, conformable or not conformable, in his subjective conception, to the nature of a law; and the citizen is equally bound to submit himself to this general will If, for example, the law of a state expressly determines according to which rule a relation created in a foreign country is to be adjudicated-whether by the local law of the forum, or by that of the foreign country, the judge in that state is bound to decide accordingly; even if such adjudication may in itself be called inconvenient, unjust, or contrary to the natural requisitions of a law. The possessor of legislative power, in making a statutory determination of the question, will regard it from two several points of view; considering on the one side the interests of the local juridical system, the exclusion therefrom of discordant elements and the maintenance of injunctions based on high purposes and the requisites of a jural society, and of the dignity and independence of its juridical power;-on the other side the considerations of international justice which here become operative, and which demand the recognition of the legal capacity of the foreigner as well as that of the citizen, and also, in many instances, make the allowance of foreign laws advisable.— But though these considerations of utility, reasonableness, friendly understanding, natural law and the like may, and in a certain degree ought to influence the legislator, especially in forming international compacts respecting these questions, these are not matters for a judicial officer to take into consideration. He has only to inquire what the juridical will of his sovereign or the positive law of his own state may have determined on these points." And, in a note, "The different positions of the judicial officer and of the legislator are too often confounded, in treating of this topic of jurisprudence."

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Savigny, Heut. R. R., B. 3, c. 1, § 348, citing this passage from Waechter, thinks