Part II.

$ 94. Lex fori.

$ 95.

Foreign sovereign, his

marriages between parties of whom one at least is a British subject, and solemnized in the manner therein provided in any foreign country or place by a marriage officer within the meaning of the Act, shall be as valid in law as if the same had been solemnized in the United Kingdom with a due observance of all forms required by law. The Act applies to embassy and consular marriages, and marriages celebrated on board ships of war on foreign stations. The "marriage officer" is not required to solemnize a marriage if in his opinion the solemnization would be inconsistent with international law or the comity of nations (s).

4. As every sovereign State has the exclusive right of regulating the proceedings in its own courts of justice, the lex loci contractús of another country cannot apply to such cases as are properly to be determined by the lex fori of that State where the contract is brought in question.

Thus, if a contract made in one country is attempted to be enforced, or comes incidentally in question, in the judicial tribunals of another, everything relating to the forms of proceeding, the rules of evidence, and of limitation, (or prescription,) is to be determined by the law of the State where the suit is pending, not of that where the contract is made (†).

III. The municipal institutions of a State may also ambassador, operate beyond the limits of its territorial jurisdiction, army, or fleet, in the following cases :—

within the

territory of

another State.

1. The person of a foreign sovereign, going into the territory of another State, is, by the general usage and comity of nations, exempt from the ordinary local jurisdiction. Representing the power, dignity, and all the sovereign attributes of his own nation, and going into the territory of another State, under the permission which (in time of peace) is implied from the absence of any prohibition, he is not amenable to the civil or criminal

(s) 55 & 56 Vict. c. 23. For previous legislation on the subject, see schedule to the Act containing the statutes repealed.

(t) Kent's Commentaries, vol. ii. p. 459 (5th ed.). Fœlix, Droit International Privé, § 76. Don v. Lippman, 5 Cl. & F. 1; Scudder v. Bank, 91 U. S. 406.

jurisdiction of the country where he temporarily re- Chap. II. sides (u).

2. The person of an ambassador, or other public minister, whilst within the territory of the State to which he is delegated, is also exempt from the local jurisdiction. His residence is considered as a continued residence in his own country, and he retains his national character, unmixed with that of the country where he locally resides (v).

3. A foreign army or fleet, marching through, sailing over, or stationed in the territory of another State, with whom the foreign sovereign to whom they belong is in amity, are also, in like manner, exempt from the civil and criminal jurisdiction of the place (x).

If there be no express prohibition, the ports of a friendly State are considered as open to the public armed and commissioned ships belonging to another nation, with whom that State is at peace. Such ships are exempt from the jurisdiction of the local tribunals and authorities, whether they enter the ports under the license implied from the absence of any prohibition, or under an express permission stipulated by treaty. But the private vessels of one State, entering the ports of another, are not exempt from the local jurisdiction, unless by express compact, and to the extent provided by such compact (y).

The above principles, respecting the exemption of vessels belonging to a foreign nation from the local jurisdiction, were asserted by the Supreme Court of the United States, in the celebrated case of The Exchange, a vessel which had originally belonged to an American citizen, but had been seized and confiscated at St. Sebastien, in Spain, and converted into a public armed vessel by the Emperor Napoleon, in 1810, and was reclaimed

(u) Bynkershoek, de Foro Legat. cap. iii. § 13, cap. ix. § 10; and see Mighell v. Sultan of Johore, (1894) 1 Q. B. 149.

(v) Vide infra, pt. iii. ch. 1.

(x) Casaregis, Disc. 136, 174.

(y) United States v. Diekelman, 2 Otto, 520; 92 U. S. 520; Wildenhus' Case, 120 U. S. 1.

$96. The case of

The Exchange.

Part II. by the original owner, on her arrival in the port of Philadelphia.

In delivering the judgment of the Court in this case, Mr. Chief Justice Marshall stated that the jurisdiction of courts of justice was a branch of that possessed by the nation as an independent sovereign power. The jurisdiction of the nation, within its own territory, is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty, to the same extent, in that power which could impose such restriction.

All exceptions, therefore, to the full and complete power of a nation, within its own territories, must be traced up to the consent of the nation itself. They could flow from no other legitimate source.

This consent might be either express or implied. In the latter case it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.

The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, under certain peculiar circumstances, of that absolute and complete jurisdiction, within their respective territories, which sovereignty confers.

This consent might, in some instances, be tested by common usage, and by common opinion growing out of that usage. A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly, and without previous notice, exercise its territorial jurisdiction in a manner not consonant to the usages and received obligations of the civilized world.

in

This perfect equality and absolute independence of Chap. II. sovereigns, and this common interest impelling them to mutual intercourse, has given rise to a class of cases, which every sovereign is understood to waive the exercise of a part of that complete, exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.

$97.

the person of

1. One of these was the exemption of the person of Exemption of the sovereign from arrest or detention within a foreign the foreign territory.

sovereign from the local

If he enters that territory with the knowledge and jurisdiction. license of its sovereign, that license, although containing no express stipulation exempting his person from arrest, was universally understood to imply such stipulation.

Why had the whole civilized world concurred in this construction? The answer could not be mistaken. A foreign sovereign was not understood as intending to subject himself to a jurisdiction incompatible with his dignity and the dignity of his nation, and it was to avoid this subjection that the license had been obtained. The character of the person to whom it was given, and the object for which it was granted, equally required that it should be construed to impart full security to the person who had obtained it. This security, however, need not be expressed; it was implied from the circumstances of the case.

Should one sovereign enter the territory of another, without the consent of that other, expressed or implied, it would present a question which did not appear to be perfectly settled, a decision of which was not necessary to any conclusion to which the Court might come in the case under consideration. If he did not thereby expose himself to the territorial jurisdiction of the sovereign whose dominions he had entered, it would seem to be because all sovereigns impliedly engage not to avail themselves of a power over their equal, which a romantic confidence in their magnanimity had placed in their hands.

Part II. $ 98.

2. A second case, standing on the same principles with the first, was the immunity which all civilized nations Exemption of allow to foreign ministers.

foreign

ministers

from the local

Whatever might be the principle on which this immujurisdiction. nity might be established, whether we consider the minister as in the place of the sovereign he represents, or by a political fiction suppose him to be extraterritorial, and therefore, in point of law, not within the jurisdiction of the sovereign at whose court he resides; still the immunity itself is granted by the governing power of the nation to which the minister is deputed. This fiction of extra-territoriality could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it.

This consent is not expressed. It was true that in some countries, and in the United States among others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege which he would not otherwise possess. The assent of the local sovereign to the very important and extensive exemptions from territorial jurisdiction which are admitted to attach to foreign ministers, is implied from the consideration, that, without such exemptions, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent to receive him implies a consent that he shall possess those privileges which his principal intended he should retain, privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform.

In what cases a public minister, by infracting the laws of the country in which he resides, may subject himself