Extent of the judicial power over foreigners residing within the territory. Depends upon municipal regulations. where the theory of the English bankrupt system, that the assignment transfers all the property of the bankrupt, wherever situate, is admitted in practice, the local tribunals would probably be ancillary to the execution of the assignment by compelling the bankrupt, or his attorney, to execute such formal acts as are required by the local laws to complete the conveyance (g). The practice of the English Court of Chancery in assuming jurisdiction incidentally over questions affecting the title to lands in the British colonies, in the exercise of its jurisdiction in personam, where the party resides in England, and thus compelling him, indirectly, to give effect to its decrees as to real property situate out of its local jurisdiction, seems very questionable on principle, unless where it is restrained to the case of a party who has fraudulently obtained an undue advantage over other creditors by judicial proceedings instituted without personal notice to the defendant (h). But whatever effect may, in general, be attributed to the assignment in bankruptcy as to property situate in another State, it is evident that it cannot operate where one creditor has fairly obtained by legal diligence a specific lien and right of preference, under the laws of the country where the property is situate (i). III. The judicial power of every State may be extended to all controversies respecting personal rights and contracts, or injuries to the person or property, when the party resides within the territory, wherever the cause of action may have originated. This general principle is entirely independent of the rule of decision which is to govern the tribunal. The rule of decision may be the law of the country where the judge is sitting, or it may be the law of a foreign State in cases where it applies; but that does not affect the question of jurisdiction, which depends, or may be made to depend, exclusively upon the residence of the party. The operation of the general rule of international law, as to civil jurisdiction, extending to all persons who owe even a temporary allegiance to the State, may be limited by the positive institutions of any particular country. It is the duty, as well as the right, of every nation to administer justice to its own citizens; but there is no uniform and constant practice of nations, as to (g) See Lord Eldon's observations in Selkrigg v. Davis (1814), 2 Rose, 291, at p. 311; Banfield v. Solomon, 9 Vesey, 77; Re Levy's Trusts (1885), 30 Ch. D. 119. (h) See, as to this practice, Ewing v. Orr-Ewing (1883), 9 App. Cas. 34, 40, per Lord Selborne, L. C.; Foote, Priv. Int. Jurisp. pp. 178 seq. (i) Kent, Comment. on American Law, vol. ii. pp. 405-408 (5th ed.); Banco de Portugal v. Waddell (1880), 5 App. Cas. 161. taking cognizance of controversies between foreigners. It may be assumed or declined, at the discretion of each State, guided by such motives as may influence its juridical policy. All real and possessory actions may be brought, and indeed must be brought, America. in the place where the property lies; but the law of England, Law of and of other countries where the English common law forms the England and basis of the local jurisprudence, considers all personal actions, whether arising ex delicto or ex contractu, as transitory; and permits them to be brought in the domestic forum, whoever may be the parties, and wherever the cause of action may originato. This rule is supported by a legal fiction, which supposes the injury to have been inflicted, or the contract to have been made, within the local jurisdiction. In the countries which have modelled their municipal jurisprudence upon the Roman civil law, the maxim of that code, 'actor sequitur forum rei,' is generally followed, and personal actions must therefore be brought in the tribunals of the place where the defendant has acquired a fixed domicile. Under the French Civil Code, foreigners who have established French law. their domicile in the country by special license ('autorisation') of the sovereign authority, are entitled to all civil rights, and, among others, to that of suing in the local tribunals as French subjects. Under other circumstances, these tribunals have jurisdiction where foreigners are parties in the following cases only: 1. Where the contract is made in France, or elsewhere, between foreigners and French subjects. 2. In commercial matters, on all contracts made in France, with whomsoever made, where the parties have elected a domicile, in which they are liable to be sued, either by the express terms of the contract, or by necessary implication resulting from its nature. 3. Where foreigners voluntarily submit their controversies to the decision of the French tribunals, by waiving a plea to the jurisdiction. In all other cases, where foreigners not domiciled in France by special license of the king are concerned, the French tribunals decline jurisdiction, even when the contract is made in France (k). Some writers consider this jurisprudence, which deprives a foreigner, not domiciled in France, of the faculty of bringing a suit in the French tribunals against another foreigner, as incon (k) Code Civil, Art. 13, 14, 15. Code de Commerce, Art. 631. Discussions sur le Code Civil, tom. i. p. 48. Pothier, Procédure Civile, Partie I. ch. i. p. 2. Valin, Sur l'Ord. de la Marine, Proceedings against absent parties. Distinction between the rule of decision and rule of proceeding, in cases of contract. sistent with the European law of nations. The Roman law had recognised the principle, that all contracts the most usual among men arise from the law of nations, 'ex jure gentium'; in other words, these contracts are valid, whether made between foreigners, or between foreigners and citizens, or between citizens of the same State. This principle has been incorporated into the modern law of nations, which recognises the right of foreigners to contract within the territorial limits of another State. This right necessarily draws after it the authority of the local tribunals to enforce the contracts thus made, whether the suit is brought by foreigners or by citizens (1). The practice which prevails in some countries, of proceeding against absent parties, who are not only foreigners, but have not acquired a domicile within the territory, by means of some formal public notice, like that of the viis et modis of the Roman civil law, without actual personal notice of the suit, cannot be reconciled with the principles of international justice (m). So far, indeed, as it merely affects the specific property of the absent debtor within the territory, attaching it for the benefit of a particular creditor, who is thus permitted to gain a preference by superior diligence, or for the general benefit of all the creditors who come in within a certain fixed period, and claim the benefit of a rateable distribution, such a practice may be tolerated; and in the administration of international bankrupt law it is frequently allowed to give a preference to the attaching creditor, against the law of what is termed the locus concursus creditorum, which is the place of the debtor's domicile. Where the tribunal has jurisdiction, the rule of decision is the law applicable to the case, whether it be the municipal or a foreign code; but the rule of proceeding is generally determined by the lex fori of the place where the suit is pending. But it is not always easy to distinguish the rule of decision from the rule of proceeding. It may, however, be stated in general, that whatever belongs to the obligation of the contract is regulated by the lex domicilii, or the lex loci contractus, and whatever belongs to the remedy for enforcing the contract is regulated by the lex fori (n). (1) Felix, Droit International Privé, §§ 122, 123. (m) Cf. Schibsby V. Westenholz (1870), L. R. 6 Q. B. 155; but see Sirdar Singh v. Rajah of Faridkote, (1894) A. C. 670. The former of these cases is said by Professor Dicey to afford an example of legislative and judicial excess of authority. "The English Courts, under an Act of the English Legislature, were authorised, and indeed bound, to exercise a jurisdiction which English judges did not believe that foreign Courts would admit to be within the proper authority of the British Sovereign." Conflict of Laws, p. 29, n. (n) See p. 148, ante. If the tribunal is called upon to apply to the case the law of the country where it sits, as between persons domiciled in that country, no difficulty can possibly arise. As the obligation of the contract and the remedy to enforce it are both derived from the municipal law, the rule of decision and the rule of proceeding must be sought in the same code. In other cases it is necessary to distinguish with accuracy between the obligation and the remedy. The obligation of the contract, then, may be said to consist of the following parts: 1. The personal capacity of the parties to contract. 2. The will of the parties expressed, as to the terms and conditions of the contract. 3. The external form of the contract. The personal capacity of parties to contract depends upon those personal qualities which are annexed to their civil condition, by the municipal law of their own State, and which travel with them wherever they go, and attach to them in whatever foreign country they are temporarily resident. Such are the privileges and disabilities conferred by the lex domicilii in respect to majority and minority, marriage and divorce, sanity or lunacy, and which determine the capacity or incapacity of parties to contract, independently of the law of the place where the contract is made, or that of the place where it is sought to be enforced. It is only those universal personal qualities, which the laws of all civilized nations concur in considering as essentially affecting the capacity to contract, which are exclusively regulated by the lex domicilii, and not those particular prohibitions or disabilities, which are arbitrary in their nature and founded upon local policy; such as the prohibition in some countries of noblemen and ecclesiastics from engaging in trade and forming commercial contracts. The qualities of a major or minor, of a married or single woman, &c., are universal personal qualities, which, with all the incidents belonging to them, are ascertained by the lex domicilii, but which are also everywhere recognised as forming essential ingredients in the capacity to contract (0). How far bankruptcy ought to be considered as a privilege or Bankruptcy. disability of this nature, and thus be restricted in its operation to the territory of that State, under whose bankrupt code the proceedings take place, is, as already stated, a question of difficulty in respect to which no constant and uniform usage prevails among (0) Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, § 1. Cooper v. Cooper (1888), 13 App. Cas. 88; Re Cooke's Trusts (1887), 56 L. J. Ch. Remedy for wrongs committed in a foreign country. nations. Supposing the bankrupt code of any country to form a part of the obligation of every contract made in that country with its citizens, and that every such contract is subject to the implied condition, that the debtor may be discharged from his obligation in the manner prescribed by the bankrupt laws, it would seem, on principle, that a certificate of discharge ought to be effectual in the tribunals of any other State where the creditor may bring his suit. If, on the other hand, the bankrupt code merely forms a part of the remedy for a breach of the contract, it belongs to the lex fori, which cannot operate extra-territorially within the jurisdiction of any other State having the exclusive right of regulating the proceedings in its own courts of justice; still less can it have such an operation where it is a mere partial modification of the remedy, such as an exemption from arrest, and imprisonment of the debtor's person on a cessio bonorum. Such an exemption being strictly local in its nature, and to be administered, in all its details, by the tribunals of the State creating it, cannot form a law for those of any foreign State. But if the exemption from arrest and imprisonment, instead of being merely contingent upon the failure of the debtor to perform his obligation through insolvency, enters into and forms an essential ingredient in the original contract itself, by the law of the country where it is made, it cannot be enforced in any other State by the prohibited means. Thus by the law of France, and other countries where the 'contrainte par corps' is limited to commercial debts, an ordinary debt contracted in that country by its subjects cannot be enforced by means of personal arrest in any other State, although the lex fori may authorise imprisonment for every description of debts (p). There is no doubt of the general rule that when an action is brought in one country for acts which have taken place in another, the rights and merits of the case are to be decided by the law of the place where the acts occurred. There is, however, a limitation to the rule when the case is one, not of contract, but of tort. The civil liability arising out of a wrong derives its birth from the law of the place where the wrong was committed, and its character is determined by that law; but in order that a wrong committed abroad should give a remedy in England, it is essential that the wrong should be of such a character that it would give a cause of action if committed in England (q). Thus a collision occurred (p) Melan v. The Duke of FitzJames (1797), 1 B. & P. 131. Sce Frith v. Wollaston (1852), 21 L. J. Ex. 108. (1) The Halley (1867), L. R. 2 P. C. 193; Phillips v. Eyre (1870), |