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International Jurisdiction of Courts

BY JOSEPH HENRY BEALE, LL.D.

ROYALL PROFESSOR OF LAW IN THE UNIVERSITY OF HARVARD.

Ir is clear that a court cannot render a judgment against a person without first getting jurisdiction over him. The courts of Tobago, to use Lord Ellenborough's phrase,1 cannot render a judgment that will "bind the rights of the whole world," because the world will not "submit to such an assumed jurisdiction." But what state will fix a limit by law to its own jurisdiction?

This question is complicated by another. No judicial action can be binding as such unless it has certain characteristics that differentiate judicial from other forms of governmental action; among these characteristics are notice and a fair chance to be heard.2 Quite aside, therefore, from the question of jurisdiction, a judgment may not be binding on a person unless he has had an opportunity to be heard. But notice or not, the jurisdictional question remains. What do we mean by jurisdiction? In the case of Turnbull v. Walker Mr. Justice Wright distinguished three senses in which the word is used; his three senses may easily be reduced to two. First, there is jurisdiction in what may be called the international sense: jurisdiction to render a judgment such as will be recognised by other states as binding. Second, there is jurisdiction in the internal sense: the power to render a judgment which can be enforced within the state, though it will not be recognised by other states as binding.

The word jurisdiction is sometimes used in another

1 Buchanan v. Rucker (1808) 9 East 192.

' See Vaughan Williams, L. J., in Fracis v. Carr (1900) 82 L.T. 698. • Turnbull v. Walker (1892) 67 L.T. 767.

sense, to designate the power which has been conferred by the state upon a particular court. The word is so used in the phrase "jurisdiction of the court of chancery" or "jurisdiction of the county court." This is a common use in our legal language; unfortunately, for it almost inevitably leads to a confusion of thought between two uses of jurisdiction and to uncertainty of meaning in important decisions. If the word "competence" could be substituted for "jurisdiction" in this use, there would be great gain in clearness of thought.

To return then to Mr. Justice Wright's two uses of the word, it is necessary to preface an examination of the meaning of one of his expressions. The phrase, "such as will be recognised by other states as binding,' requires explanation. It is probable that states would not generally agree upon rules for jurisdiction. France, for instance, refuses recognition to any judgment of a foreign court rendered against a Frenchman, even though he was personally served with process, unless in some way he waived the benefit of his own law; and therefore France would refuse to recognise the jurisdiction of an English court in what appears to us to be the clearest case for jurisdiction, that is, the personal service of process upon a party present within the territory, if the party defendant were French. If the English court has jurisdiction in the international sense, and yet France refuses to recognise the judgment, it cannot be necessary, that every state on earth should recognise the validity of the action in order to have jurisdiction in the international sense. One must admit that our own rules for fixing jurisdiction even in the international sense are purely rules of the common law and have no internationally binding quality. If we say that they are rules of international law, we must mean international law as it has been accepted and forms part of our own common law. The meaning, therefore,

of the phrase must be that jurisdiction in the international sense is the power of rendering a judgment such as will be recognised in states which have adopted the common law as the basis of their jurisdiction. The rules for determining jurisdiction are rules of common law origin. Yet they are rules which cannot be changed by legislation in any one country which accepts the common law; for if the rules were changed by statute in one common law state, the other common law states would not accept the change nor recognise the validity of the statutory action. In the rules which regulate jurisdiction, therefore, we have a very interesting and a very permanent record of the common heritage in law of all the English-speaking states.

On the other hand, the recognition by other common law states which is required for jurisdiction cannot mean either that the recognition by one common law state is enough to establish jurisdiction, nor, on the other hand, is the refusal of a single state to recognise the validity of a judgment enough to prove lack of jurisdiction. Here, as elsewhere, with the courts of a hundred states declaring the common law, unanimity of view cannot be hoped on any question. We must depend for our knowledge of the "common law" of the English-speaking world, not upon an unbroken body of decisions in our hundred courts of supreme authority, but upon reason and the weight of authority. To satisfy the condition of recognition in other states we must therefore find recognition in most common law states.

Furthermore, by "recognised as valid" one does not necessarily mean "enforced." A state does not necessarily enforce a foreign judgment upon recognising the validity of it. Many grounds may exist for declining to enforce a judgment besides its invalidity. A refusal to enforce a judgment is not an adjudication that the court rendering it was

without jurisdiction unless the refusal was placed upon that ground.

A court is sometimes directed by statute to render judgment in a case where there is no jurisdiction in the international sense. The Common Law Procedure Act, 1852, (15 & 16 Vict. c. 76), in section 19 provided for bringing action against a non-resident foreigner by service of summons outside the “jurisdiction" of the court. This not only gave a very broad power to the court, but operated, it was held, as a direction to the court to exercise the power. In discussing the situation created by this section, Mr. Justice Blackburn said: "Should a foreigner be sued under the provisions of the statute referred to (15 & 16 Vict. c. 76 sect. 19), and then come to the courts of this country and desire to be discharged, the only question which our courts could entertain would be whether the acts of the British legislature, rightly construed, gave us jurisdiction over this foreigner, for we must obey them. But if, judgment being given against him in our courts, an action were brought upon it in the courts of the United States (where the law as to the enforcing of foreign. judgments is the same as our own), a further question would be open, viz. not only whether the British legislature had given the English courts jurisdiction over the defendant, but whether he was under any obligation which the American courts could recognise to submit to the jurisdiction thus created." And in the principal case recognition was refused to a French judgment rendered against an absent nonresident foreigner.

A similar situation has arisen in other states. Thus an Italian court has refused to enforce a French judgment rendered in favour of a Frenchman against an absent Italian, although such a judgment was

1 Schibsby v. Westenholz (1870) L.R. 6 Q.B. 155.

2 See also Scrutton, J., in Phillips v. Batho [1913] 3 K.B. 25, 29.

valid by the provisions of the French Code (and might also be valid by the Italian Code if rendered under similar circumstances by an Italian court); the court saying, significantly, that the plaintiff "cannot escape the rules of competence established by public international law."

The distinction is therefore clearly raised by these authorities between jurisdiction in the international sense and that which is conferred on a court by its own legislature; and the exercise by the English courts of jurisdiction in the latter sense is seen to be based on the doctrine of the supremacy of Parliament.2

It is interesting to compare this result with the action of American courts in a similar case. The fourteenth amendment (1868) to the Constitution of the United States provided that, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." A similar limitation on the power of Congress was contained in the fifth amendment (1791). Under Article VI, section 2, of the Constitution, "This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." Accordingly, it is the duty of every judge in the United States to enforce the Constitution in preference to any conflicting statute of a state, or in other words to declare such statute unconstitutional and therefore void.

What, then, happens if a state legislature directs its Courts to proceed in a case which is beyond their jurisdiction in the international sense? There is no doctrine of the supremacy of the legislature in America; 1 Girard v. Tramontano (1883) 12 Clunet 464. 2 Dicey, Law of the Constitution, 5th ed., 38.

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