an injunction was refused by which it was sought to restrain the police authorities of New York city from placing policemen in front of a public house in which guests had been repeatedly subjected to unjust, exorbitant and illegal charges, and from giving warning to strangers about to enter to be careful (57). But instances have not been lacking in recent years where such interference has occurred. Ordinarily the proper remedy where police supervision is exercised in an arbitrary and unlawful manner is an action for damages or a criminal prosecution.

(57) Prendorill v. Kennedy, 34 How. Pr. 416.

CONFLICT OF LAWS

BY

FRANK WILLIAM HENICKSMAN,

A. B., A. M. (Indiana University)

J. D. (University of Chicago)

Lecturer in Law, University of Chicago.

INTRODUCTION.

§ 1. Origin of subject. In its origin, the field of law designated by the term Conflict of Laws or Private International Law, is part of the English common law, and thus is in force in jurisdictions which, like our American states, derive their unwritten law from that system.

§ 2. Function of its rules: Questions of jurisdiction of law. As may be inferred from the name given to this topic of law, it concerns itself with the conflicting rules of different states and nations. These may come into conflict in furnishing the law to be applied to a case, or in providing the court which is to apply the law.

The conflict may arise in supplying the law. Of this an instance occurs when the individual whose rights are to be determined has been placed in such a physical position that it may plausibly be contended that each of two sovereignties should provide the law applicable to the case in hand. The laws of these sovereignties may differ; under the laws of one he may have rights, and, under the other, none. Another instance occurs when he goes into the territory of another sovereignty and there contends, in ascertaining his rights, that he has carried with him the laws of the state from whence he came. The various positions in which the individual may be placed, where it may be plausibly contended that the laws of more than one sovereignty should apply to him, will be taken up fully in the body of this topic. Even though the rule ultimately applied is that of a single sovereignty, a plausible contention may be made that the law of some other state should be applied. Some rule to solve the problem is required. The principles of Conflict of Laws are concerned, in part, with furnishing rules to determine which of two or more conflicting bodies of law should be drawn upon to ascertain the rights of parties.

§ 3. Same: Questions of jurisdiction of courts. The law of this subject is not confined, however, to furnishing rules to decide which of two or more antagonistic juris

dictions should provide the proper law for the determination of rights; but it also provides rules to determine which of two or more judicial tribunals shall decide given controversies of law or fact. This conflict may arise in a variety of ways. An individual may have come but temporarily into the territory where the court sits, and he may contend that the court, by reason of his mere temporary presence, has no power to pass upon the controversy between him and the moving party (the plaintiff). He may, on the other hand, never have been in the territory, but may have property there, which the court has taken to satisfy the claim of the moving party. Here, again, he may contend that only the court where he resides has the power to enter such a judgment as would validly permit the moving party to apply the property to the satisfaction of his claim. The conflict may be presented in other ways to be more fully discussed. Conflict of Laws deals with the solution of such problems, as well as those indicated in the preceding subsection.

§ 4. In general. Among civilized people it is scarcely conceivable that any territory should be entirely without some law. Yet, it may perhaps be said with safety that an undiscovered, uninhabited territory has no laws. Every territory inhabited by civilized people, however, has laws for the determination of rights between men. To modern thought, every man residing or being in any territory ought to be subject to some law, by virtue of which he may determine his personal and property rights as against his neighbor. He should be assured that some rule is provided by the territory in which he resides or happens to be, by which any attack upon his person or property may be redressed or prevented, and, furthermore, that, if such an attack is made, there is at his service a body of applicable law, furnished either by the unwritten customs of the community, or by some legislative action, by which he can determine and enforce his rights against the attacking party. On the other hand, if he is accused of having committed a wrong against another individual of that territory, or against the inhabitants of the entire territory, he ought likewise to have such a body of law to which he may resort to determine whether he has committed such a wrong, and not be left