as the creator of new patterns in public jurisprudence. The underlying causes of the movement were in fact wholly political, as shown by a contemporary writer, Peter of Andlau, canon of Colmar, and law professor at the University of Basel in 1460, in his notable work on the Romano-Germanic Government. While the reception originated in imperial political needs, in the end it turned to the advantage, not of the Empire but rather of the estates which, after the reconstruction of the public law of Europe in the treaties of Westphalia in 1648, appropriated to their own aggrandizement the absolutist conceptions derived from the victory of what was coldly termed the foreign law. To this may be easily traced the subsequent and rapid development of territorial supremacy in Germany, a supremacy thus well prepared, on the downfall of the Empire, to pursue ideals of increasing expansion. Nearly coincident with the resettlement of Europe in the Westphalian treaties, Puritan England produced the remarkable documents known as the "Agreement of the People and the Instrument of Government." In essence these were the constitutional charters of the attempted Republic of 1648-1653, and the protectorate of 1653-1659,' and, in a constitutional view, are part of the development of thought giving birth earlier to the fundamental orders of Connecticut (Windsor, Hartford, Wethersfield) (in 1638), and to the subsequent royal charters of the American colonies, which charters were but the prelude to and in some cases identical with the American State constitutions adopted on the acquisition of independence in 1776. It was in this same period that in Germany there arose the notable figures of Herman Conring and Samuel Pufendorf, whose works on universal jurisprudence and the status of the empire were destined to stimulate a school which rapidly developed the modern science of public law. Starting with the conception of an imperial State as molded through the doctrines of the Roman law reception, there great writers produced a succession of masterpieces which have deeply influenced subsequent juristic science. From the seventeenth century colonial charters, too, there developed a process of legal interpretation destined to become the immediate forerunner of constitutional construction as we know it to-day. This arose early in the eighteenth century through contests touching the validity of colonial statutes in Massachusetts and Connecticut when tried on appeal at Whitehall and in the light of the royal charters which had given birth to the colonial governments. In the celebrated case of Winthrop's appeal to the Crown in council, February 15, 1728, a report of the judicial committee comprising the two lord chief justices, the lord chancellor, the master of the rolls, and many other notabilities, held the colonial act "not warranted by the charter of the colony and hence null and void "because repugnant to the charter." Later colonial cases were followed by interpretations in the Court of King's Bench itself, where the questions at issue had arisen upon the charters of English boroughs and where the borough governments had passed by-laws tending to the formation of what became known as "select bodies." In other words, the by-laws which became the subject of litigation, had attempted to place the power of adding to the freemen of a borough in the hands of the mayor and aldermen, together with a limited number of the corporators, leaving out of view the general body of the freemen, who were plainly entitled to representation under the royal charters. The charter case of Maidstone in Kent came before the King's Bench in 1776, and the equally notable one of Helston in Cornwall four years later. Lord Mansfield and the other justices in holding 1 Gardiner, Constitutional Documents of the Puritan Revolution, 270–314. Pitkin, History of the United States, 1, 123. void a series of elections under by-laws which had sought to exclude an integral element of the corporation from a share in government, declared that a by-law at variance with the charter, which was the borough's constitution, must necessarily be held repugnant to it and null and void. Since a chartered government could not alter the constitution given to it by the charter, it could not exceed chartered limits, and the borough was assuredly a type of limited government whose acts must be construed strictly in the light of the charter.1 This form of reasoning and the identical terms used by the royal justices reappear in the opinion of the Supreme Court of the United States in the leading case of Marbury against Madison, which came before the court at February term, 1803, and which, although by no means the earliest of such cases, forms the first instance in which the theory of modern constitutional construction is authoritatively analyzed and made a part of our national jurisprudence. The very expression also found in our national Constitution, that statutes passed in pursuance of its authority shall be the supreme law of the land, reproduces an expression already used more than once by the King's Bench when speaking of the borough constitution and the by-law which must pursue it if it is to be held valid. In the light of these instances we must assuredly agree with Chief Justice Marshall, who wrote the opinion in Marbury's case, that the principle of judicial construction of legislation in a constitutional government rests in its essence upon considerations not peculiar to our Government alone, but which are a part of law universal, and therefore to be unhesitatingly accepted. It is, in truth, upon the certainty of judicial interpretation, as illustrated in many a field of the past, that the security of such a government as ours must rest in the last resort. On it will depend the permanence of the American State. The CHAIRMAN. We will next pass to the allied subject on the program-namely, the relation of public law to international law-and will hear that topic discussed by Prof. Beach, of Yale University, who is also a member of the Supreme Court of Errors of the State of Connecticut. THE RELATIONS OF PUBLIC LAW TO INTERNATIONAL PRIVATE LAW. By JOHN K. BEACH, Supreme Court of Errors of Connecticut. It was formerly assumed that the enforcement of foreign rights necessarily involved the extraterritorial enforcement of the foreign laws which created those rights. Whether this extraterritoriality belonged to the law itself, or was granted as a matter of comity, was disputed; but the fact of the extraterritorial operation of foreign laws was agreed. That form of this theory which at one time prevailed in the United States was judicially announced by the Supreme Court of the United States in Bank of Augusta v. Earle, and was taken verbatim from Story's work upon the Conflict of Laws.3 1 Burrow's Reports, pp. 1827, 2204, 2260, 2515. See Madison, in Const. Convention at Phila., June 29, 1787: "Acts of States of Union are by-laws in contrast to the Articles of Confederation." 1 Cranch, U. S. Supreme Court Reports, 137. Story's Conflict of Laws, sec. 38. "In the silence of any positive rule affirming or denying or restricting the operation of foreign laws, courts of justice presume the tacit adoption of them by their own nation, unless they are repugnant to its policy or prejudicial to its interests. It is not the comity of the courts, but the comity of the Nation which is administered and ascertained in the same way and guided by the same reasoning by which all other principles of municipal law are ascertained and guided." That is to say, the foreign law was first supposed to be adopted by the State, and then enforced by the courts as a part of the local law; and the comity which was exercised was that of the Nation in adopting the foreign law, and not that of the court in enforcing it. Yet because of the exception made in respect of foreign laws repugnant to the policy or prejudicial to the interests of the State, it was frequently necessary in doubtful cases for the courts themselves to exercise the comity of the Nation in determining whether a given foreign law should or should not be adopted as part of the municipal law. Nevertheless, it remained true that the foreign law, though adopted by an act of comity, was enforced as a matter of legal right. Since then the theory of the extraterritorial operation of foreign laws has been questioned, and in its place has arisen the modern conception of a system of law called private international law, which is not wholly foreign nor wholly domestic in its origin, and knows no territorial limitations, because it derives its authority not from any one sovereign but from the common consent of nations. This conception of a neutral body of law comprising the principles necessary for the determination of every cause in which a foreign right is asserted, enables us to escape the difficulty of accounting for the fact that the laws of one sovereign should have operative effect in the dominion of another sovereign. It is sufficient if we agree that private international law is operative in every State, and that it is capable of pointing out what system of law is applicable to the decision of every cause. Under this theory the "Courts do not in strictness enforce foreign laws; when they are said to do so, they enforce not foreign laws, but rights created by foreign laws." "In applying the French law the court does not allow it to operate in America, but only recognizes that it did operate in France." Thus the court receives the foreign law not as a command from a foreign sovereign controlling its action, but as evidence of the existence and character of a transitory right. A controversy still persists as to whether private international law imposes itself on States by an inherent authority of its own, or whether it is binding only to the extent to which each State, actuated by motives of international comity, has adopted it as parts of its own law. In this country the latter theory prevails; and it is my purpose to point out more definitely the accepted view, or perhaps the view toward which general assent is turning in this country as to the relation of private international law to public law. It is necessary, in the first place, to recall that certain principles of private international law are embodied in the compulsory provisions of the Federal Constitution, which require each State to give full faith and credit to the judgments of every other United State, to extend to the citizens of each United State the same privileges and immunities which it grants to its own citizens, and to respect the treaties of the United States as the supreme law of the land. The Constitution also forbids the restriction of interstate and foreign commerce by the several States, and guarantees the free interchange of domicile and citizenship among the several States. In all international rela 113 Peters, p. 589. 2 Dicey Conflict of Laws, 2d ed., 1908, p. 11. Bigelow's note to sec. 38, Story's Conflict of Laws, 8th ed., 1893. 68436-17-VOL VII- -21 tions the several States have no independent voice, but are represented by the Federal Government. Beyond these limitations the several States are, for all purposes of private international law, independent sovereigns as between themselves and in the treatment which they accord to laws of foreign nations. The modern theory of the existence of a neutral system of private international law and the English view that it derives its authority from adoption by the State was definitely announced as a guiding principle for judicial decision by the Supreme Court of the United States in Hilton v. Guyot, in the following words: International law in its widest and most comprehensive sense-including not only questions of right between nations, governed by what has been appropriately called the law of nations, but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominion of another nation-is part of our law, and must be ascertained and administered by the courts of justice as often as such questions are presented in litigation between man and man duly submitted to their determination. The most certain guide, no doubt, for the decision of such questions is a treaty or statute of this country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunal of ascertaining and declaring what the law is, whenever it becomes necessary to do so, in order to determine the rights of parties to suit legally brought before them. In doing this the courts must obtain such aid as they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations.' It is interesting to note the complete abandonment of the doctrine of the tacit adoption of foreign laws, as stated by the same court in Bank of Augusta v. Earle, 56 years before, and the complete adherence to the theory of private international law as a system of law finding its imperfect obligation not in the will of any other sovereign, but in the common consent of nations and its legal authority in adoption by the State. This decision is authoritative in the Federal courts which sit in every State, and though it does not control the courts of the several States, it has had, in cooperation with the writings of modern jurists, a profound influence upon judicial opinion throughout the country. The doctrine of international comity occupies the same place in this theory that it did in the old. It protects the exclusive sovereignty of the State from impeachment by explaining the adoption of private international law as a voluntary act, and it expresses the attitude of the courts when called upon for the first time in a doubtful case to choose between principles of private international law in respect of which there is a difference of national opinion. It is, in short, the agency by which the principles of private international law are once for all transmuted into municipal law, and to the extent to which it has performed that office it ceases to become operative, and the municipal law itself becomes the fixed rule for the enforcement of foreign rights. In actual administration this modern theory possesses a practical advantage over the old, because it does not conflict with the jealous regard which courts naturally have for their own national policy and laws. So long as the enforcement of a foreign right was supposed to involve the importation of the foreign law as an operative rule of decision within the forum it was difficult to avoid the objection that a foreign law materially different from the local law was repugnant to the public policy of the forum. The force of the objection depended wholly upon the extent of the difference, since every impairment of the generality of the municipal law might be construed as impairing to the same extent the policy of the State. If, however, we agree that the court is not enforcing the foreign law, but is applying a rule which points to the foreign law as the true definition of the foreign right, it is then clear that no objec 1 159 U. S. 163. tion based upon public policy can be predicated on a mere difference between the foreign law and the local law, for no State has any public interest in defining or limiting the legal consequences of transactions occurring in another country. The true application of the objection thus appears to be limited to those rights which either in themselves or in their origin are of such a character that their enforcement will contravene the public policy of the forum, and consequently it is only in those cases where an executory or continuing right is sought to be enjoyed within the forum that any conflict of public policy is likely to arise. The enforcement, of a perfected obligation validly created in one State can rarely conflict with the public policy of another State, although its enforcement may properly be refused if offensive to public morals. Perhaps it is in some degree, because of these considerations, that there has been and now is an increasing liberality in this country in the enforcement of rights based upon foreign statutes inconsistent with the local law, especially in enforcing the statutory liability of stockholders in foreign corporations, and the rights of administrators under statutes providing for the survival of actions for injuries resulting in death. Another potent factor which is operating in a different way toward the enforcement of foreign rights is the growth of uniform legislation in the United States, under the influence of the American Bar Association. In South America you have also held international conferences upon this subject, which have doubtless borne fruit. The duty of preserving and developing private international law, which is normally shared by all civilized nations, has been temporarily cast almost wholly upon the nations of America; and it is a satisfaction to observe that they have answered this increased obligation by creating the International High Commission on the Uniformity of Laws, which is to meet next April at Buenos Aires. The CHAIRMAN. Before we adjourn the following paper will be presented as read by title: Derecho y procedimiento criminal en lo que se refiere a esfera y límites del jurado, by José A. Vargas Torres. DERECHO Y PROCEDIMIENTO CRIMINAL EN LO QUE SE REFIERE A ESFERA Y LÍMITES DEL JURADO. Por JOSÉ A. VARGAS TORRES. del mundo, ha sido un factor importantísimo en la Administración de Justicia, La Institución del Jurado, establecida hoy en casi todas las Legislaciones ha producido y sigue produciendo benéficos resultados, que son de gran tras cendencia para la vida social. dadanos que sin tener carácter público de magistrados son elegidos por sorteo "El Jurado," dice Escrich, "es la reunión o junta de cierto número de ciuy llamados ante el Tribunal o Juez de Derecho para declarar, según su conciencia, si un hecho está o no justificado, a fin de que aquél pronuncie su sentencia de absolución o condenación y aplique en este caso la pena con arreglo Son dos los elementos principales de la Institución: (1) El no constituirse por ciudadanos de jurisdicción continua, sino sorteados para cada caso particu a las leyes." |