[1] Introduction to the _Principles of Morals and Legislation_
(Clarendon Press edition of 1879).
[2] _The Times_, July 26, 1887.
[3] _R._ v. _Keyn_, 2, Ex.D. 63.
[4] Address at Saratoga Springs, N.Y., 1896 (_Law Quarterly Review_,
October 1896).
[5] _Commentaries on the Law of England_, 4th ed., iv. 66.
[6] Austin's view, as set out in the _Province of Jurisprudence
Determined_, is that laws proper, or properly so-called, are
commands; laws which are not commands are laws improper or improperly
so-called. A command implies a definite superior in a position to
enforce the command. Where there is no superior to impose obedience
there is no law. Rules which "are imposed among nations or sovereigns
by opinions current among nations are usually styled the law of
nations or international law. Now, a law set or imposed by public
opinion is a law improperly so-called" (p. 147). For Sir H. Maine's
views see below.
[7] Introduction to the _Principles of Morals and Legislation_
(Oxford, 1879), pp. 24 et seq.
[8] _Province of Jurisprudence Determined_ (1861), p. 177; Austin
explains his view more fully at p. 127.
[9] _International Law_, p. 50.
[10] _Droit des gens_ (1896), i. 22. Compare Savigny: "A community of
judicial conscience can be formed among nations like that which
positive law creates in the bosom of one people. The foundations of
that intellectual community are constituted partly by a community of
race, partly and especially by a community of religious convictions.
Such is the basis of the law of nations which exists principally
among European Christian states, but which was not known to the
peoples of antiquity. We are entitled to look upon this law as a
positive law, although it is an incomplete judicial formation" (eine
unvollendete Rechtsbildung), _System des heutigen romischen Rechts_
(1840), i. S 11.
[11] _Elements_ (London, 1885), pp. 22 et seq.
[12] "It seems to me," says Professor L. Oppenheim, "that most
writers confound the conception of 'source' with that of 'cause,' and
through this mistake come to a standpoint from which certain factors
which influence the growth of International Law appear as sources of
rules of the Law of Nations. This mistake can be avoided by going
back to the meaning of the term 'source' in general. Source means a
spring or well, and has to be defined as the rising from the ground
of a stream of water; and, wanting to know whence it comes, we follow
the stream upwards until we come to the spot where it rises naturally
from the ground. On that spot, we say, is the source of the stream of
water. We know very well that this source is not the cause of the
existence of the stream of water. 'Source' signifies only the natural
rising of water from a certain spot of the ground, whatever natural
causes there may be for that rising. If we apply the conception of
source in this meaning to the term 'source of law' the confusion of
source with cause cannot arise. Just as we see streams of water
running over the surface of the earth, so we see, as it were, streams
of rules running over the area of law. And if we want to know whence
these rules come, we have to follow these streams upwards until we
come to their beginning. Where we find that such rules rise into
existence there is the source of them. Of course, rules of law do not
rise from a spot on the ground as water does; they rise from facts in
the historical development of a community. Thus a good many rules of
law rise every year from the Acts of Parliament. Source of Law is
therefore the name for an historical fact out of which rules of
conduct rise into existence and legal force" (International Law,
London, 1905, sec. 15.).
[13] _International Law_ (London, 1905) sec. 19.
[14] Note 8 to Grotius, L., ii. c. iii. S 3.
[15] Bishop Percy's translation (1847), p. 138.
[16] We have seen this in the progress made in the three instances
given above at the Congress of Paris (1856), the Conference of Berlin
(1878) and the Hague Conference of 1907.
INTERNATIONAL LAW (PRIVATE). There is in every territory the law of the
land, or territorial law, by which the courts decide all cases that
include no circumstances connected with any foreign territory. Often,
however, such a circumstance suggests the question whether justice does
not require that the law of some other territory shall be applied. Thus
the Gretna Green marriages, by which English minors escaped the
necessity of banns or the consent of parents or guardians, suggested the
question, which was answered in the affirmative, whether even in England
their validity ought not to be tried by the law of Scotland, where they
were celebrated. Often, again, the question is suggested whether justice
does not require that the courts of law should allow some effect to
foreign legal proceedings, such as a judgment obtained or litigation
pending abroad. Such questions as these are answered by private
international law, which, since both laws and legal proceedings are
emanations of public authority, may be defined as the department of
legal science which is concerned with the effect to be given in the
courts of law of any territory to public authority of another territory.
The extradition of criminals is also an effect given to foreign public
authority, but rather by the government which surrenders the criminal
(see EXTRADITION) than by the courts of law, whose only function is to
check the surrender so far as the domestic legislation allows them to do
so. If private international law were defined as the effect to be given
by any mode in one territory to the public authority of another,
extradition would be included in it, as is often done; but since the
principles governing extradition have little to do with those applicable
to other cases, it seems best to treat it as a separate department of
law, as is generally done in England.
_Comity of Nations._--In the 17th century the Dutch jurists Paul and
John Voet and Huber brought forward a view which has since been largely
adopted in England and the United States, namely, that the effect given
by courts of law to foreign public authority is only due to the comity
of nations, but for which every possible question before them would have
to be decided by the law of the land. Comity, in that phrase, may only
be intended to express the truth that foreign public authority has no
inherent effect, without denying that the effect which domestic public
authority allows to it is dictated by justice. But the limitations
implied in the popular meaning of comity have sometimes been made the
ground for deciding questions of private international law in the manner
supposed to be most for the interest of litigants belonging to the
territory; the phrase is consequently reprobated by most European
continental writers, and had better be dropped. The justice on which
private international law is founded acknowledges no interest but the
general one of intercourse between persons sharing a common civilization
in different countries. This interest, as manifesting itself in the
domain of law, it seeks to satisfy and it is therefore a true legal
justice, rightly classed under _law_, _droit_, _recht_, _diritto_,
_derecho_ and other corresponding terms.
Of the two words which, together with _law_, make up the title of our
subject, _private_ is justified by the fact that its application is
between litigants in courts of law, and not between governments except
so far as they may be such litigants. _International_ (although
_interterritorial_ would be better) is justified by the facts that
public authority, which may be internationally foreign, has to be
considered, and that governments display a great interest in the
question by concluding treaties about it, and occasionally even by
suspending diplomatic relations when a court of one country has applied
to the subjects of another a rule which the government of the latter
deems unjust. But those who think that the primary division of law
should be into public and private, and not into international (or
interterritorial) and territorial, object to the order in which the
three words of the name are usually placed, and call the subject
"international private law."
_Conflict of Laws._--This is another name for our subject, and indeed an
older one than "private international law," besides being still much
used. But although laws may differ, they cannot properly be said to
conflict, unless each can lay a just claim to application in the same
circumstances. Now this does not happen. The justice which points out
that in certain cases effect ought to be given in one territory to the
laws or legal proceedings of another really traces the limits of laws
and legal proceedings in space; and the tracing of limits is rather the
prevention of conflict than its solution. Savigny has well pointed out
that our subject is analogous to the determination of the limits of laws
in time, which has to be made when the just application of a new
enactment is to be distinguished from the _ex post facto_ application
which cannot justly be allowed it. The truth which is aimed at in the
phrase "conflict of laws" is that the main problem of our subject is the
selection of a law for each given case; but different laws are
candidates for selection, not from anything in them as laws, but from
differing opinions about the justice of the case. From this selection,
again, will be seen the contrast between private international law and
attempts at the assimilation of the laws of different countries. To a
great extent such assimilation is desirable, especially in mercantile
law, but it must always be limited by different views of social order
and differences in national habits of thought and action. So far as it
is realized, private international law comes to an end with the occasion
for selection.
_Territory._--This word, as entering into the definition of private
international law, does not imply a separate state, whether sovereign or
semi-sovereign; it includes every geographical area having a separate
legal system, England and Scotland, as well as France or Germany. The
case of the Gretna Green marriages illustrates the necessity of rules of
private international law between all such, as well as between areas
internationally foreign to one another; and indeed the rules are so
applied, and in the language of our subject, the area of every separate
legal system is foreign to every other such area. Only where a rule
contemplates a person as attached more or less permanently to a
particular territory, the tie which so attaches him to it may be either
nationality or domicile if the territory is a separate state, as France;
but it can only be domicile if the territory is combined with others in
one state. Nothing but domicile can distinguish British subjects as
belonging to England, Scotland or Jamaica, or citizens of the United
States as belonging to New York or Pennsylvania.
Legal rules must have relation to the physical and mental characters,
and the consequent habits of action, of the populations for which they
are intended; they would not satisfy legal justice if they endangered
social order as understood and desired by those populations, or if they
failed to give due effect to the expectations of parties. This must be
true for the rules of private international law as well as for those of
any territorial law, and it leads us to ask whether the differences
which preclude the universal identity of the latter must not also
preclude the existence of the former. The answer is: (1) That where
circumstances connected with different territories are concerned, wise
rules for the selection of a law will generally give better effect to
the expectations of the parties than an exclusive adherence to the
territorial law of the court; (2) That the circumstances in which a
foreign law is held to apply are exceptional as compared with those in
which the domestic law applies, and naturally occur oftenest among the
persons and in the affairs having most of a cosmopolitan character, so
that the moral shock of applying to them a law founded on a foreign
social order is greatly attenuated; (3) That throughout Christendom (to
which Japan has now been added for legal purposes) there does exist,
though not an identity, yet a considerable similarity in views of social
order and prevalent habits of thought and action. Within the same
geographical limits there also exists another requisite for the working
of a system of private international law, namely, a mutual confidence
between countries in the enlightenment and purity of their respective
judicatures, to whose proceedings the respect enjoined by the rules of
our subject is to be mutually given.
Even within the geographical limits just mentioned there are certain
differences on points of social order, especially on marriage or
divorce, which have hitherto prevented a complete agreement being
attained in the rules of private international law. But no attempt has
ever been made to establish any system of the kind as between Christian
communities and Mahommedan or other polygamous ones, or between
countries enjoying a Christian standard of civilization and those, of
which China may be taken as an example, which, whether polygamous or
not, do not inspire the necessary confidence in their judicatures. In
Turkey and other Eastern countries (in which designation Japan is no
longer included for purposes of law) Christians are placed by treaty
under the jurisdiction in civil matters of their respective consuls.
When in the courts of Christian countries Eastern persons or
circumstances connected with Eastern laws have to be dealt with, the
peculiar institutions of those countries are not enforced; and while in
other respects the judges may be assisted by some of the rules of
private international law, especially such as have for their object to
carry into effect the reasonable intentions of parties, yet those rules
are not applied as parts of an authoritative system.
Rules for the selection of the territorial law to be applied in the
different classes of cases, or for the recognition of foreign legal
proceedings, have sometimes been made the subject of international
treaties, and have often been enacted by territorial legislatures.
England possesses a few such enactments, as in the Bills of Exchange Act
1882, and many other countries possess them to a much larger extent in
their codes. Where such enactments exist, or where treaty stipulations
have been entered into, and the territorial law makes such stipulations
binding on the judges, the courts of law must obey and apply them as
they must obey and apply any other part of the law of the land. If, as
in England, judicial precedents are held to be binding, so that the law
of the land consists in part of judge-made law, a similar result is
produced; an English court must follow English precedents on the
application of foreign law or the refusal to apply it, to the same
extent to which it would be bound to follow them on any other point. So
far as our matter remains open for a judge, he has, to assist him
towards a just decision, the treaties, written laws and judicial
precedents of other countries as examples, and a vast literature which
has grown up in all Christian countries. That this apparatus is far from
having furnished concordant results is due, not only to the divergences
on points of social order referred to, but also to the different bases
of the legal systems with which the respective governments and writers
have been familiar. The legal systems of different countries have been
founded on Roman law, feudal law, English common law and still other
bases. The arguments of lawyers are affected by the prepossessions
thence arising, and they have consequently failed to arrive by their
unaided efforts at so much agreement on the rules of private
international law as would have been compatible with the conditions and
modes of life and action surrounding them. But the general acceptance of
a complete body of rules on private international law is a goal which
for other countries than England is well within sight by the road of
international treaties concluded under the joint direction of
professional and non-professional minds.
The most remarkable steps taken in or towards the conclusion of such
treaties are those initiated, to its high credit, by the government of
the Netherlands. That government first moved in the matter in 1874, and
has succeeded in assembling at the Hague the official representatives of
nearly all European powers in conferences held in 1893, 1894, 1900 and
1904. At these conferences rules on many branches of private
international law were agreed on for submission to the respective
governments, which has led to conventions, one of the 14th of November
1896, three of the 12th of June 1902, and four of the 19th of July 1905,
regulating the selection of the laws for determining the validity of
marriage and of contracts made on the occasion of marriage, their
effects on property and on the status of the wife and children, divorce
and judicial separation, the guardianship of minors and of interdicted
persons, the validity of testamentary dispositions and the rules of
intestate succession, and many points of judicial procedure. These
conventions may be found at length in the _Revue de droit international
et de legislation comparee_, t. 28, pp. 574-579; 2^e serie, t. 4, pp.
485-500; and 2^e serie, t. 7, pp. 646-678. A draft relating to
bankruptcy was also prepared at the conference of 1904, but was intended
to serve, not as a general convention, but as the base of separate
conventions to be concluded between particular states. The extent to
which the continent has become united with regard to private
international law appears from the fact that France, Germany, Italy, the
Netherlands, Portugal, Rumania and Sweden are parties to all the
conventions--that Luxemburg, Russia and Spain are parties to those
relating to judicial procedure--and that all the ten except Russia, but
with the addition of Austria, Belgium and Switzerland, are parties to
those on the validity of marriage, divorce and judicial separation, and
the guardianship of minors; while all remain open to adhesion by other
powers. It is much to be regretted that the British government has
declined all invitations to take part in this great international work.
The fact must in part be ascribed to the hindrance which the difference
between the English common law and the Roman law places, even for
lawyers, in the way of joint action with the continent, and in part to
the necessity that the rules laid down in any convention should be
enacted for the United Kingdom by parliament, the leaders of which
belonging to either party take no interest in any such matters.
Next in importance among combined official efforts should be mentioned
the congress of seven South American states at Montevideo in 1888-1889,
which on many branches of private international law drew up rules
intended for adoption by treaty on that continent.
_Nationality: Domicile._--Coming now to the particular rules of private
international law which are received in England, or have been most
widely received elsewhere, the most obvious cases which present
themselves for admitting foreign circumstances to influence the decision
of a judge are those in which rights are so connected with the person of
an individual that the justice of deciding on them by a law having
relation to his person speaks almost for itself. Hence arises the notion
of a personal law, which must be that either of the person's political
nationality or of his domicile, these being the only circumstances that
for the time being are fixed for the individual, irrespectively of the
spot where he may happen to be, and of the transaction in which he may
happen to engage. We have seen in the article on Domicile what is the
legal meaning of that term, how its existence is ascertained, that in
and long after the middle ages it was the usual criterion of the
personal law, and that in modern times political nationality has largely
replaced it as such criterion on the continent of Europe. Thus as well
by the conventions mentioned as by the codes of many states--France,
Italy and Germany among the number--the capacity and status of persons
is now governed by the law of their political nationality. In Latin
America the criterion of the personal law is still generally held to be
domicile, which is among the reasons why the South American states
prefer to pursue the codification of private international law
independently of European conferences and conventions.
The English courts were slow to recognize a personal law at all and as
late as Lord Eldon's time they held that the competency of a person to
contract depended on the law of the place where the contract was made.
Their decisions have since come into line with the continental decisions
so far as to make capacity and status depend on a personal law, but not
so far as to make nationality its criterion. Hence in England, and in a
minority of European continental countries, of which Denmark is an
example, the capacity of a party to enter into a contract, whether it be
disputed on the ground of his age, or, in the case of the contract of
marriage, on the ground of his consanguinity or affinity with the other
party, will be decided by the law of his domicile. Guardians, curators
and committees of foreign minors or lunatics, deriving their authority
from the law or jurisdiction of the latter's domicile or nationality,
can sue and give receipts for their personal property. A court will not
decree the divorce of persons not domiciled within its jurisdiction, and
it will recognize foreign divorces if, and only if, they have been
decreed by a jurisdiction to which the parties were subject by domicile
or nationality. And the legitimation of a child by the subsequent
marriage of its parents will be held to depend on the law of its
father's domicile or nationality. But the reference to the place of
contract, carried to North America with the rest of the English
jurisprudence of that date, still maintains in the courts of the United
States a struggle with the doctrine of personal law as governing
capacity and status.
Here must be noticed a difficulty which arises about the application of
any foreign law to the capacity for contracting. It will be understood
by the German provision intended to meet it, namely, that "if a
foreigner enters in Germany into a transaction for which he is incapable
or has only a restricted capacity, he is to be treated for that
transaction as being so far capable as he would be by the German
legislation. This, however, does not apply to transactions with regard
to rights of family or of succession, or to those disposing of foreign
immovable property" (Art. 7 of the statute enacting the code). In a
spirit similar to that which dictated the German enactment, the French
courts have not generally allowed a Frenchman to suffer from the
incapacity, by his personal law, of a foreigner who contracts in France,
when the foreigner would have been capable by French law, and the
Frenchman was in good faith and without great imprudence ignorant of his
incapacity. Lately a disposition has been shown to limit this protection
of nationals to the case in which the foreigner has been guilty of
fraud. English courts usually hold themselves to be more stringently
bound by rules, whether those enacted by parliament or those adopted for
themselves; and if they should continue to profess the doctrine that
capacity depends on the law of the domicile, it is not probable that
they will deem themselves entitled to make exceptions for the protection
of persons contracting in England with foreigners not enjoying such
capacity. The point furnishes an illustration of the fact that to deal
satisfactorily with so complex a subject as private international law
requires the assistance of the legislature, which again cannot be given
with full utility unless uniform provisions, to be enacted in different
countries, are settled by international convention.
Another ground for the application of a personal law is furnished by the
cases in which masses of property and rights have to be dealt with
collectively, by reason of their being grouped around persons. The
principal instances of that kind are when it is necessary to determine
the validity and operation of a marriage settlement or contract, or the
effect of marriage on the property of the husband and wife in the
absence of any express settlement or contract, and when property passes
on death, either by a will or by intestate succession.
These matters, at least when the property concerned is movable, are
generally referred to the personal law of the husband at the time of
the marriage, or to that of the deceased respectively; but about them,
besides the question between domicile and nationality, there arises
the question whether immovable property is to be included in the mass
governed by the personal law, or is to follow the territorial law of
its own situation (_lex situs_). Here we touch the distinction between
_real_ and _personal_ statutes which arose in the middle ages, when
the local legislation of the free cities was contrasted, under the
name of statutes, with the general Roman law. That distinction did not
bear the same character at all times, but in the 16th century, under
d'Argentre, it acquired its most developed form, absorbing all laws
into one or other of the two classes, and giving a vast extension to
the real class, for which was claimed exclusive application to
immovables situate in the territory of the law. In accordance with
this system, the highly feudal character of which was very sympathetic
to English jurisprudence, English practice has refused to include
English immovables in the mass to be dealt with as a unit on marriage
or death. But it refers the validity and operation of a marriage
settlement, at least as to movables, and the effect of marriage, in
the absence of express contract, on the movable property of the
husband and wife, to the law of the husband's domicile at the time of
the marriage, called the matrimonial domicile. And with regard to the
succession to movables on death, it adopts the principle of massing
them irrespectively of their situation, so far as is permitted by the
peculiar system under which the property in movables situate in
England does not pass directly to the legatees or next of kin, but to
the executors or administrators, who are charged with the duty of
paying the debts of the deceased and distributing the beneficial
surplus. The validity of a will of movables, otherwise than in respect
of form (about which more hereafter), and the rights, whether under a
will or under an intestacy, in the beneficial surplus arising from
them, are determined in England by the law of the testator's last
domicile. On the points glanced at in this paragraph the decisions in
the United States generally agree with those in England, only allowing
the pecuniary relations of a married couple, in the absence of express
contract, to be varied by a change of domicile, notwithstanding that
such change is in the husband's exclusive power, instead of
maintaining them as fixed by the matrimonial domicile. On the
continent of Europe partisans of a variation after the marriage are
scarcely to be found; but as between the nationality and the domicile
of the husband or of the deceased, and on the question whether the
mass to be governed either by nationality or domicile, on marriage or
on death, includes immovables situate under a different law, the
division of opinion, legislation and practice is considerable and
intricate.
_Lex situs_, _lex loci actus_, _lex loci contractus_, _lex fori._--The
law of the territory in which they are situate (_lex situs_) is
generally applied to the property in particular things, whether movable
or immovable, so far as they are not included in any mass grouped round
a person; in England, therefore, always to immovables. In drawing up
documents and conducting ceremonies public functionaries must
necessarily follow the law from which they derive their authority,
wherefore the law of the place where any public document is entered
into, or any public ceremony performed (_lex loci actus_), is the only
one that can be followed in its external form. This maxim applies to the
forms of notarial acts, and to that of marriage celebrated with the
official concurrence of clergymen, registrars and so forth. And since
documents and ceremonies entered into without official concurrence are
rarer on the continent of Europe than in England, the inevitableness of
the form of the _lex actus_, when such concurrence is had, has generally
led to that form being also held sufficient whenever the affair comes to
be inquired into later. Nor in England has the sufficiency of the form
of the _lex loci actus_ for the celebration of marriage ever been
doubted, but a will made by a notarial act in accordance with that law
was not admitted. Disregarding the distinction between external form and
internal validity and operation, a will of English land could not take
effect unless made in English form (that is, since the Wills Act of
1837, with two witnesses), and a will of personal estate could not be
admitted in England to probate unless made in the form of the law of the
testator's last domicile. But now, by Lord Kingsdown's Act, passed in
1861, there are given for wills of personal property made by British
subjects, besides the form of their last domicile, three alternative
forms, namely, the form of the place of making the will, that of the
testator's domicile at the time when it was made, and that of the part
of the British dominions where he had his domicile of origin--only the
first of the three, however, being offered when the will is made in the
United Kingdom; and no will is to be revoked or invalidated by a change
of the testator's domicile after making it.
The law of the place of contract _lex loci contractus_, is
distinguished into that of the place where the contract is entered
into, _lex loci contractus celebrati_, and that of the place where it
is to be performed, which, from the particular case in which the
performance consists only in a payment, is called _lex loci
solutionis_. To the first of these is generally referred the formal
validity of a contract, so far as entered into without the
intervention of a functionary, and therefore not covered by the
principle of the _lex loci actus_, and so far also as the performance
is not tied to any particular place. For example, the form for
contracting marriage, whether with official intervention as in
England, or by private and even oral contract as in Scotland, depends,
both as to necessity and as to sufficiency, on the law of the place of
contracting it. But as to the internal validity, interpretation and
operation of a contract, there has been and still remains much
difference of opinion between the laws of the place of contracting and
of that of stipulated performance; the former being supported, among
other grounds, on some texts of Roman law which Savigny has shown to
have been misunderstood, while the latter agrees much oftener with the
intention of the parties. The English decisions do not adhere closely
to either of those laws, but while repeating much of the traditional
language about the _lex loci contractus_, they aim at doing
substantial justice by referring a contract to that place with which
its matter has the closest connexion, or which the intention of the
parties points out.
In matters of legal procedure every court follows its own practice
exclusively (_lex fori_), as, for instance, whether the remedy on a
contract shall be damages or specific performance, and whether a
judgment may be executed against the person or only against the
property of a party. A point much disputed under this head is whether
the time of limitation of actions shall, as held in the United
Kingdom, be decided by the _lex fori_, as an incident to the
procedure, or by the _lex loci contractus_ in one of its varieties, as
an essential modality of the obligation.
_Renvoi._--We will now suppose that the rules of private international
law, as practised in any country (A), refer a case arising in its courts
to the law of another country (B), as being that of the domicile or
nationality of a person, and that those rules as practised in (B) in
turn refer (_renvoient_) the same case to the law of (A), as being that
of the nationality or domicile or perhaps of the _locus actus_: what are
the courts of (A) to decide? This question, which involves nothing less
than that of the meaning in which the reference to a law is to be
understood in our subject, has during recent years excited great
discussion both among the jurists and in the courts of all nations. It
is answered by the English courts to the effect that (B) by its
reference back (_renvoi_) has disclaimed the control of the case, which
must therefore be decided without regard to (B)'s particular laws. See
_In re Trufort_, 36 Ch. D. 600, and _In re Johnson_, 1903, 1 Ch. 821.
This principle practically gives efficacy to the renvoi, and coincides
with the express provisions both of the above-mentioned convention of
the 12th of June 1902, Art. 1, as to the right of contracting marriage,
and of the statute enacting the German code, Art. 27, as to capacity
generally. The English law agrees in opinion, and is supported by a
numerical preponderance of the judicial precedents in France and
Belgium; but it must be admitted that a numerical preponderance of the
jurists who have declared themselves hold that the courts of (A) ought
to apply the particular laws of (B).
_Public Order._--It must not be supposed that the law of the land, the
proper territorial law of the court which has to deal with a case in
which foreign circumstances arise, always gives way to the foreign law
pointed out by the general maxims which even that particular court
accepts. All rules for the application of foreign laws are subject to an
exception commonly called that of public order, i.e. where such
application would interfere with essential principles of morality or
policy received in the territory. This reservation is usually made in
general terms where legislation on private international law is
attempted, as in Article 6 of the Code Napoleon, and preliminary Article
12 of the Italian code; but the courts have to administer it, as they
have also in England and other countries where it rests only on judicial
practice, and the greater or less extent given to it is one of the
causes of the uncertainty and want of uniformity in our subject. One
example often quoted is the refusal of the courts in all Christian
countries to give effect to polygamous marriage, but this case goes
deeper still, for none of the countries in which polygamous marriage
exists is allowed to enter at all into the communion of private
international law. All, so far as Great Britain has settled legal
relations with them, are among those in which British subjects live
under consular protection and jurisdiction, or (in Egypt) under that of
the Mixed Courts. A better instance is afforded by the refusal of
courts, normally within the pale of European legal communion, to
recognize divorce as dissolving a marriage, notwithstanding that it has
been decreed under the personal law. As another instance, there can be
little doubt that an incapacity to marry imposed by the personal law in
virtue of religious vows or orders would be disregarded by the English
courts in the case of a person marrying in England. Again, it is
established in England that damages cannot be recovered for a tort
unless the act complained of was a wrong both by the law of the country
where it was done and by the law of England; and Article 12 of the
statute enacting the German code is in accordance with that doctrine.
Now the law of the country where the act is done would naturally give
the standard for measuring its legal consequences, and it seems to be
due to the connexion which laws qualifying acts as wrongs have with
public order that respect for that law is tempered by respect for the
law of the countries in which it is invoked; but Article 8 of the
Belgian code refers the liability for torts to the former law without
any restriction.
_Foreign Judgments._--In the rules which have passed before us in the
foregoing general review it is easy to perceive a leading motive--that
of securing, so far as public order allows, the certainty and stability
both of personal and of business relations in the international or
interterritorial intercourse which has always accompanied civilization,
but is now especially frequent and extensive. It has been attempted to
erect this motive into a guiding principle of law, laying down that
rights once accrued in any territory, or sometimes, it is said, by
virtue of any territorial law, are to be recognized and enforced,
subject to the requirements of public order, in any other territory in
which they may be invoked before a court of justice. From this, which
may be called the principle of the acceptance of foreign rights, it is
claimed that the rules of private international law are to be deduced,
and that by their consonance with it any such rules are to be tested
when proposed. The difficulties of the subject, however, do not admit of
being unlocked by so simple a key. They meet us again when we inquire in
what territory, or by virtue of what territorial law, a particular
alleged right has accrued. Persons belonging by domicile or nationality
to A enter in B into a contract to be performed in C; where and by
virtue of what law does either acquire a right against the other? Is it
to be in or by the law of their homes, where they are normally, though
not always necessarily, to be sued? Or of the country where they
contract, which for various purposes, as those of police, but not for
all purposes, has the control of them when they contract? Or of the
country where their contract is to be performed, under a similar control
by which, perhaps extending to the very acts of performance, they or
their agents may be brought by the operation of their contract?
Evidently we cannot apply the principle to guide us in our choice of a
law till the very problem which that choice presents has first been
solved. There is, however, one case in which the principle of the
acceptance of foreign rights leads to a conclusion, namely, where the
right has been declared by the judgment of a competent court, which may
have been given in an ordinary case, presenting no question of private
international law, but in which, if such a question arose, it has been
solved by choosing the law and basing the judgment on it. The rule in
England and in many other countries as to foreign judgments is that the
judgments of competent courts in other territories (foreign in the sense
of civil law, whether politically foreign or not) are to be enforced
without reopening the merits of the questions disposed of by them. In
some countries, however, a foreign judgment is examinable on its merits
before being enforced. This was formerly the unquestioned rule in
France, though the practice there seems to be now turning the other way.
In the system adopted in England everything turns on the competence. For
judgments _in rem_, declaring or disposing of the property in a thing,
the test of competence is that the thing, whether movable or immovable,
was within the territory of the court. Judgments which declare the
status of a person, as with regard to marriage or majority, are
competent if the person was subject to the jurisdiction by nationality
or domicile. The property or the status is treated as being what has
been so declared or decreed. For judgments _in personam_, decreeing the
payment of a certain sum, the test of competence for the present purpose
is again that the person against whom it was pronounced was subject to
the jurisdiction by nationality or domicile; the judgment may then be
sued on as giving of itself a good title to the sum decreed by it to be
paid. For domestic purposes the competence may exist on quite other
grounds. By its own territorial law a court may be authorized to
entertain a suit _in personam_ because the plaintiff possesses its
nationality, as by Article 14 of the code Napoleon, or because the
contract sued on was made or was to be performed in the territory, and
so forth. But judgments based on these grounds will not be enforceable
outside the territory. Here we touch the root principles of our subject.
The distinction between domestic and international grounds of competence
can only be explained by the history of law, and we come in sight of the
fact that the rules of private international law rest finally on
conventions which could not have existed if the civilization of
different countries had not so much that was common in its origin and in
the course which it has followed, but which suit the life of those
countries just because that life is itself another outcome of those
common antecedents.
AUTHORITIES.--The best authority on the history of private
international law to the end of the 18th century is Laine,
_Introduction au droit international prive_ (2 vols., Paris, 1888).
For modern progress the most copious materials are to be found in the
_Revue de droit international et de legislation comparee_ (Brussels,
from 1869); the _Journal du droit international prive et de la
jurisprudence comparee_ (Paris, from 1874); and the _Annuaire de
l'institut de droit international_ (Paris, from 1877). The most
comprehensive general treatise is that of von Bar, of which the 2nd
edition appeared at Gottingen in 1889, and has been translated: _The
Theory and Practice of Private International Law_, by L. v. Bar, 2nd
ed., translated, by Gillespie (Edinburgh, 1892). Other works, many of
great merit, are numerous in all languages; but in this, as in every
department of law, the first place for England and the United States
must be given to the different Law Reports, since in those countries
it is not in the study but on the bench that the highest legal
intellect is usually displayed, and the judgments delivered are often
essays on the points involved. The following works, however, among
others, treat the subject from the English or United States point of
view: Story, _Commentaries on the Conflict of Laws, Foreign and
Domestic_, 8th ed., by Bigelow (Boston, 1883); Wharton, _A Treatise on
the Conflict of Laws or Private International Law_ (2nd ed.,
Philadelphia, 1881); J. Westlake, _A Treatise on Private International
Law, with Principal Reference to its Practice in England_ (4th ed.,
London, 1905); Foote, _A Concise Treatise on Private International
Jurisprudence, based on the Decisions in the English Courts_ (3rd ed.,
London, 1904); A. V. Dicey, _A Digest of the Law of England with
Reference to the Conflict of Laws_ (2nd ed., London, 1908); Beale, _A
Selection of Cases on the Conflict of Laws, with Notes and Summary_
(Cambridge, Mass., 1900-1903); Bate, _Notes on the Doctrine of Renvoi_
(1904). (Jno. W.)
INTERPELLATION (from Lat. _interpellare_, to interrupt), a term meaning,
in general, an interruption, more particularly used of a method of
procedure adopted in some of the legislative chambers of continental
Europe, especially those of France and Italy, and somewhat similar to
that of a motion to adjourn the House in the British parliament. It was
originally confined to the asking of a question, after due notice, on
some affair of state. It is now, however, the chief means by which the
policy or action of the ministry of the day is challenged. An
interpellation can be brought on without the consent of the minister to
be attacked; it is usually made the subject of a general debate, and
generally ends with a vote of confidence or want of confidence in the
ministry. The right of permitting or vetoing an interpellation rests
with the chamber. In France a tendency has been growing among deputies
to use the interpellation as a method of attack on or accusation against
individual colleagues.
INTERPLEADER, in English law, the form of action by which a person who
is sued at law by two or more parties claiming adversely to each other
for the recovery of money or goods wherein he has no interest, obtains
relief by procuring the rival claimants to try their rights between or
among themselves only. Originally the only relief available to the
possessor against such adverse claims was by means of a bill of
interpleader in equity. The Interpleader Act 1831 enabled the defendant
in such cases, on application to the court, to have the original action
stayed and converted into a trial between the two claimants. The Common
Law Procedure Act of 1860 further extended the power of the common law
courts in interpleader; and the Judicature Act 1875 enacted that the
practice and procedure under these two statutes should apply to all
divisions of the High Court of Justice. The Judicature Act also extended
the remedy of interpleader to a debtor or other person liable in respect
of a debt alleged to be assigned, when the assignment was disputed. In
1883 the acts of 1831 and 1860 were embodied in the form of rules by the
_Rules of the Supreme Courts_ (1883), O. lvii. by reference to which all
questions of interpleader in the High Court of Justice are now
determined. The acts themselves were repealed by the Statute Law
Revision Act of the same year. Interpleader is the equivalent of
multiplepoinding in Scots law.
INTERPOLATION (from Lat. _interpolare_, to alter, or insert something
fresh, connected with _polire_, a polish), in mathematics, the process
of obtaining intermediate terms of a series of which particular terms
only are given. The cubes, for instance, shown in the second column of
the accompanying table, may
+-------+----------------+
|Number.| Cube of Number.|
+-------+----------------+
| 0 | 0 |
| 1 | 1 |
| 2 | 8 |
| 3 | 27 |
| 4 | 64 |
| 5 | 125 |
| 6 | 216 |
| . | . |
| . | . |
| . | . |
+-------+----------------+
be regarded as terms of a series, and the cube of a fractional number,
not exceeding the last number in the first column, may be found by
interpolation. The process of obtaining the cube of a number exceeding
the last number in the first column would be _extrapolation_; the
formulae which apply to interpolation apply in theory to extrapolation,
but in practice special precautions as to accuracy are necessary. The
present article deals only with interpolation.
The term is usually limited to those cases in which there are two
quantities, x and u, which are so related that when x has any arbitrary
value, lying perhaps between certain limits, the value of u is
determinate. There is a given series of associated values of u and of x,
and interpolation consists in determining the value of u for any
arbitrary value of x, or the value of x for any arbitrary value of u,
lying between two of the values in the series. Either of the two
quantities may be regarded as a function of the other; it is convenient
to treat one, x, as the "independent variable," the other, u, being
treated as the "dependent variable," i.e. as a function of x. If, as is
usually the case, the successive values of one of the quantities proceed
by a constant increment, this quantity is to be regarded as the
independent variable. The two series of values may be tabulated, those
of x being placed in a column (or row), and those of u in a parallel
column (or row); u is then said to be _tabulated in terms of_ x. The
independent variable x is called the _argument_, and the dependent
variable u is called the _entry_. Interpolation, in the ordinary sense,
consists in determining the value of u for a value of x intermediate
between two values appearing in the table. This may be described as
_direct interpolation_, to distinguish it from _inverse interpolation_,
which consists in determining the value of x for a value of u
intermediate between two in the table. The methods employed can be
extended to cases in which the value of u depends on the values of two
or more independent quantities x, y,...
In the ordinary case we may regard the values of x as measured along a
straight line OX from a fixed point O, so that to any value of x there
corresponds a point on the line. If we represent the corresponding
value of u by an ordinate drawn from the line, the extremities of all
such ordinates will lie on a curve which will be the graph of u with
regard to x. Interpolation therefore consists in determining the
length of the ordinate of a curve occupying a particular position,
when the lengths of ordinates occupying certain specified positions
are known. If u is a function of two variables, x and y, we may
similarly represent it by the ordinate of a surface, the position of
the ordinate being determined by the values of x and of y jointly.
The series or tables to which interpolation has to be applied may for
convenience be regarded as falling into two main groups. The first
group comprises mathematical tables, i.e. tables of mathematical
functions; in the case of such a table the value of the function u for
each tabulated value of x is calculated to a known degree of accuracy,
and the degree of accuracy of an interpolated value of u can be
estimated. The second group comprises tables of values which are found
experimentally, e.g. values of a physical quantity or of a statistical
ratio; these values are usually subject to certain "errors" of
observation or of random selection (see PROBABILITY). The methods of
interpolation are usually the same in the two groups of cases, but
special considerations have to be taken into account in the second
group. The line of demarcation of the two groups is not absolutely
fixed; the tables used by actuaries, for instance, which are of great
importance in practical life, are based on statistical observations,
but the tables formed directly from the observations have been
"smoothed" so as to obtain series which correspond in form to the
series of values of mathematical functions.
It must be assumed, at any rate in the case of a mathematical
function, that the "entry" u varies continuously with the "argument"
x, i.e. that there are no sudden breaks, changes of direction, &c., in
the curve which is the graph of u.
Various methods of interpolation are described below. The simplest is
that which uses the _principle of proportional parts_; and
mathematical tables are usually arranged so as to enable this method
to be employed. Where this is not possible, the methods are based
either on the use of Taylor's Theorem, which gives a formula involving
differential coefficients (see INFINITESIMAL CALCULUS), or on the
properties of finite differences (see DIFFERENCES, CALCULUS OF).
Taylor's Theorem can only be applied directly to a known mathematical
function; but it can be applied indirectly, by means of finite
differences, in various cases where the form of the function
expressing u in terms of x is unknown; and even where the form of this
function is known it is sometimes more convenient to determine the
differential coefficients by means of the differences than to
calculate them directly from their mathematical expressions. Finally,
there are cases where we cannot even employ finite-difference formulae
directly. In these cases we must adopt some special method; e.g. we
may instead of u tabulate some function of u, such as its logarithm,
which is found to be amenable to ordinary processes, then determine
the value of this function corresponding to the particular value of x,
and thence determine the corresponding value of u itself.
In considering methods of interpolation, it will be assumed, unless
the contrary is stated, that the values of x proceed by a constant
increment, which will be denoted by h.
In order to see what method is to be employed, it is usually necessary
to arrange the given series of values of u in the form of a table, as
explained above, and then to take the successive _differences_ of u.
The differences of the successive values of u are called its _first
differences_; these form a new series, the first differences of which
are the _second differences_ of u; and so on. The systems of notation
of the differences are explained briefly below. For the fuller
discussion, reference should be made to DIFFERENCES, CALCULUS OF.