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SELECTION OF CASES
THE CONFLICT OF LAWS
JOSEPH HENRY BEALE, JR.
PROFESSOR OF LAW IN HARVARD UNIVERSITY
THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION
THE topic of the Common Law upon which Judge Story has imposed the title, The Conflict of Laws, consists of four parts, different in origin, though closely related to one another in their practical application. The Conflict of Laws is first concerned with the jurisdiction of States, the extent of their legislative and judicial power, and of the obligation and right of individuals. to obey and to take advantage of the legislation of one or another State. These are questions of international law, which should properly be decided in every country in the same way. The topic is next concerned with the creation of legal rights and obligations, as a result of the sovereign action of some State; often an international matter, though the questions involved are rather questions of foreign fact than of law. The next concern of this branch of the law is the recognition and enforcement within one State of rights and obligations which have been created in another State; a question not in any sense international, but to be determined in accordance with the municipal law of the State concerned. Finally, there remains to determine the legal process by which, if at all, the foreign right shall be enforced; also obviously a municipal question.
But though the doctrines which make up the topic, The Conflict of Laws, are of various origin, they all form part of the Common Law of England, and have been adopted as such in the States of the American Union; they are law with us, not because they arose in international comity and usage or in municipal practice, but because they are acted upon in our courts. The name, Private International Law, sometimes applied to the whole topic, is therefore inadequate and misleading.
This collection of cases is the result of a seven years' experience in teaching the Conflict of Laws. The arrangement of the sub
ject may be open to logical objections; but there seemed to be sufficient practical reason for the order adopted. Most of the cases here printed were decided in the English and American courts; but valuable cases in the British Colonial courts have also been printed. In these Colonies, as in the United States, the principles of the Conflict of Laws are of especial importance, since in them business transactions are seldom confined within State or Colonial lines.
Several foreign cases will be found in the collection. So far as the rules of law illustrated by them have their origin in international law, these cases may well be regarded as having persuasive authority in our own courts; cases involving, for instance, the limits of national jurisdiction, the validity of a foreign marriage, and the existence generally of foreign-acquired rights. On such questions the views of foreign courts should be carefully considered. It is unnecessary to point out to one familiar with the principles of the Common Law that greater weight should be given to the opinions of foreign courts, delivered in the course of actual litigation, than to the academical speculations of even the ablest authors, when not based on the authority of decided cases. On such questions as the effect, according to our own law, of the existence of a foreign-acquired right, where the problem, as has been pointed out, is one of purely municipal law, the views of foreign courts, administering a different system of law, are of absolutely no weight as authority. Where decisions of this nature have been included, the purpose has been to illustrate and emphasize the difference between the doctrines prevailing in the modern civil law and in our own law. The need of studying this difference has been shown by recent cases, notably the case of Hilton v. Guyot.
Most of these cases are here printed as they were given in Clunet's" Journal du Droit International Privé," not being reported in any official series accessible to me. For the translation of the cases I must take the responsibility. In the French decisions and others reported in the French form (for instance, the Belgian and Egyptian) I have done more than translate. The report as published does not ordinarily contain the opinion of the court, but merely the judgment, which, however, includes a full but formal recital of the facts and reasons on which the judgment is based. I have so changed the form of statement (without the slightest change otherwise) as to throw the judgment into the
form of an opinion. This has been done by omitting the formal commencement of each recital. I could not defend such a prac tice if the primary object of this collection were not in my opinion thereby furthered.
The cases cited in the notes by no means exhaust the authorities. The purpose has been to include in the notes only a sufficient number of well-considered cases to show the actual state of authority on each question.
I have not always indicated the omission of the reporter's statement of facts, where sufficient facts appeared in the opinion, or of the arguments of counsel. All other deviations from the original report have been indicated.
J. H. B.