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Not so with private international law. The transactions over which it assumes control are strictly private in their nature, in which the State as such has generally no interest. The private contract of the citizen of one State with the citizen of another, or a conveyance or will made by the citizen of one State transferring property in another, are subjects of private international law, with which public international law has no concern.
"3. As to remedies applied.
"In cases to which private international law is applicable recourse is had to judicial tribunals acting under the authority and in accordance with the rules of procedure of the country in which they sit. They are asked to hear the evidence and administer justice as though the case were one of purely domestic concern. But in a contest between sovereign states arising under the law of nations, no such recourse is ordinarily practicable. No State would consent to have its disputes decided by the courts of another power, nor to appear before them, a suppliant for the justice it demands as a right."
SECTION 3. BASIS OF PRIVATE INTERNATIONAL LAW.
The fundamental principle underlying the whole subject of private international law, is that the courts of one State or country will apply the laws of another State or country in a particular case, when such a proceeding is necessary in order to do justice to the litigants.
The reason for such action on the part of the courts is the desire to do justice to the litigants. The statement so often found that such action is based upon comity between states is ridiculous unless we give a new meaning to the word "comity."
EXCEPTIONS TO THE APPLICATION OF A FOREIGN LAW.
SECTION 4. IN GENERAL.
There are certain classes of cases in which the courts of one State or country will never apply the laws of another State or country in the settlement of the controversy. These exceptions to the general principle stated in the last paragraph will be considered in the five following sections:
FIRST EXCEPTION-LAWS AGAINST THE ESTABLISHED POLICY OF THE FORUM.
A court will never enforce any foreign' law which is contrary to the established policy of the forum.2 By the established policy of the forum is, in effect, meant, those laws to which a particular degree of importance is attached by the State or country. Unless the legislature has indicated expressly its will that a particular domestic policy shall control in all cases, it devolves upon the courts to determine in what cases it shall control."
SECTION 6. SECOND EXCEPTION-LAWS CONTRARY TO GOOD MORALS.
Foreign laws contra bonos mores, i. e., laws contrary to the generally recognized standard of morality among civilized nations, will not be enforced.
The laws of any State in the
By the term forum is meant, according to its use, either the Vol. XII.-6.
court, or the State or country in which the court is held. Dommert vs. Osborn, 140 N. Y., 30; Milliken vs. Pratt, 125 Mass., 374.
Under this principle polygamous marriages, or marriage between very closely related relations, such as brother and sister, or ancestor and descendant, will not be recognized, even if valid where entered into, in spite of the general principle that a marriage valid where entered into is good anywhere.
SECTION 7. THIRD EXCEPTION-LAWS WHICH WORK AN INJUSTICE TO THE CITIZENS OF THE FORUM.
It is one of the first principles of law that a government should protect its own citizens, and no court will apply any law, in the determination of a suit before it, which will work an injustice to the citizens of the forum. For this exception to apply there must be an injustice to such citizens, and mere loss to such citizen is not a sufficient basis upon which to rest this exception. In Woodward vs. Brooks, the Supreme Court of Illinois said:
"As a voluntary foreign assignment, valid in the State where made, is enforced in this State as a matter of comity, our courts will not enforce it to the prejudice of our citizens who may have demands against the assignor. It is contrary to the policy of our laws to allow the property or funds of a non-resident debtor to be withdrawn from this State before his creditors residing here have been paid, and thus compel them to seek redress in a foreign jurisdiction; so it was held in Heyer vs. Alexander, 108 Ill., 385, that a voluntary assignment of a non-resident debtor's property, valid under the laws of the State where made, will not be enforced here as against domestic attaching creditors. See Chaffee vs. Fourth National Bank, 71 Me., 524; Kelley vs. Crap, 45 N. Y., 46; Johnson vs. Parker, 4
Bush., 149; Chicago, Milwaukee & St. Paul Railway Co. vs. Keokuk Northern Line Packet Co., 108 Ill., 317; Life Association of North America vs. Fassett, 102 id., 315.
"In May vs. First National Bank of Attleboro, 122 Ill., 551, we held that a voluntary assignment made in another State by a non-resident there, executed in conformity with our laws in respect to the conveyance of property, but inconsistent, in substantial respects, with our statute relating to assignments, will not be enforced here to the detriment of our citizens; but for all other purposes, and between citizens of the State where the assignment was made, if valid by the lex loci, it will be carried into effect by the courts of this State. That case is decisive of the one at bar. In the present case there are no domestic creditors to be affected. The attaching creditors are resident in the same State with the assignor and where the assignment was made and will be executed. As before seen, the assignment is valid under the laws of Pennsylvania, and capable of being enforced there, and under the doctrine announced, the courts of this State will give it effect as against citizens of Pennsylvania. The heirs of Miller are not complaining here. It seems that they, as well as the assignee, assignors and attaching creditors, are all residents of the same State. The claim made by the assignee, as well as by the attaching creditors, is of Brooks' interest in the money in the hands of the garnishees. If the Miller heirs have an equitable right to more than one-half of the money now in the hands of the garnishees, it is not perceived why that question may not be determined by an adjustment of the partnership accounts of the original firm in the courts of that State.
"The rule here announced is not in conflict with Rhawn vs. Pearce, 110 Ill., 350. In that case the assignment was not voluntary but resulted by the laws of the State of Pennsylvania. A statutory assignment will not be enforced against attaching creditors of another State. May vs. First National Bank of Attleboro, supra."
SECTION 8. FOURTH EXCEPTION-LAWS AFFECTING REAL PROPERTY SITUATED WITHIN THE
JURISDICTION OF THE FORUM.
It is of the greatest importance to the welfare of every State that the titles to the lands within its jurisdiction should be clear and perfect. Certainty of titles can only exist where the law governing such titles is certain; and the law can only be certain where the same law governs every transaction relative to the title. Every transaction, therefore, which constitutes a link in the chain of title to a piece of real property must be governed in all respects by the law of the place where the real property is situated. This rule does not apply to collateral warranties, or other matters which in no way affect the question of the title to the land.
SECTION 9. FIFTH EXCEPTION-LAWS PENAL IN THEIR CHARACTER.
It is a fundamental principle of law that the courts of one State or country will never attempt to enforce the criminal laws of another State or country, and this principle is extended to the case of laws not strictly criminal in their character which nevertheless impose penalties under certain conditions.