Page:The Green Bag (1889–1914), Volume 17.pdf/258

 EDITORIAL DEPARTMENT

24I

CURRENT LEGAL ARTICLES This department represents a selection of the most important leading articles in all the English and American legal periodicals of the preceding month. The space devoted to a summary does not always represent the relative importance of the article, for essays of the most permanent value are usually so condensed in style that further abbre viation is impracticable.

CONFLICT OF LAWS (Jurisdiction Between Aliens)

AN article entitled "Jurisdiction in Actions Between Foreigners" by the distinguished French authority on international law, A. Fillet, translated by William C. Gray, appears in the March Harvard Law Review (V. xviii, p. 325). The author first considers whether the courts of a country should take jurisdiction of suits between foreigners just as they would cases of the same nature arising between their own citizens. He explains that- there is "ap parently irreconcilable conflict regarding this subject between French and English-American decisions." Under our law such jurisdiction is always assumed, but it is refused under the French Code which does not expressly confer it. Since this rule, however, was contrary to the needs of society it has been much nar rowed by exceptions and by treaties. The author concedes that the English rule is un questionably preferable, and shows that two reasons usually given by the French courts, that they were not established to dispense justice to foreigners, and that this extension of their jurisdiction would have the incon venience of requiring them to apply foreign laws, are unsound. "For the maintenance of the peace of society, it is not enough that exact justice be done to a certain number of men; it must be done to all under penalty of rendering social relations insecure. This se curity, this order, this peace, the state owes to foreigners as well as to its own citizens." Moreover, foreigners are now permitted to ac quire rights, and these are worthless unless they can be protected. The author then considers what law should be administered when jurisdiction has been taken. He contends that it is necessary that there should be but one competent tribunal for a case, otherwise conflicts of decision and confusion as to rights result. Hence states should adopt the same principles as to juris diction. In this part of his discussion he con tends that the French Law which gives juris

diction to the tribunal of the domicile is the one which best regards the security of the de fendant and secures the judge best fitted to decide the suit, and in the greatest number of cases insures the effectiveness of the judg ment. He thinks that the jurisdiction of the court of the situs over movables and of that of the domicile over personal actions and mov ables is the principle on which nations might come to an agreement. Exceptions should be reduced to indispensable cases, and the cases in which courts recognize the jurisdiction of others should be exactly the same as the ones in which they claim it themselves. It is a failing common to all judges, however, that they are more positive in asserting their own jurisdiction than in recognizing that of others, and the author shows that English judges have had this failing in common with others. In conclusion he says: "Until the world can be brought to accept a single system of private international law — and in spite of the progress in that direction of late years it seems that a very long time will pass before that ideal will be attained — the laws applied to any subject will vary with the tribunal before which it comes. The es tablishment of clear-cut laws in regard to jurisdiction, easily understood and universally respected, would allow everyone to know by what law he will be judged. The lack of cer tainty in the law would be so much diminished. Is not lessening the uncertainty of law one of the most signal services we can render to private interests?"

CONSTITUTIONAL LAW (Corporations. Reserved Power to Amend Charters. Obligation of Contracts)

THE article on "The Limitations of the Power of a State to Amend or Repeal Charters of Incorporation," by Horace Stern, is con tinued in the February American Law Register (V. liii, p. 73). The author emphasizes the distinction between the charter as a contract