this peculiar meaning shall be taken as the meaning of the parties. If the meaning of the instrument, by itself, is intelligible and certain, extrinsic evidence is admissible to identify its subjects or its objects, or to explain its recitals or its promises, so far, and only so far, as this can be done without any contradiction of, or any departure from, the meaning which is given by a fair and rational interpretation of the words actually used. If the meaning of the instrument, by itself, is affected with uncertainty, the intention of the parties may be ascertained by extrinsic testimony, (l) and this intention will be taken as the meaning of the parties expressed in the instrument, 565 if it be a meaning which may be distinctly derived from a fair and rational interpretation of the words actually used. But if it be incompatible with such interpretation, the *566 instrument will then be void for uncertainty, or incurable inaccuracy. A contract may be enforced in its plain and natural, or in its legal meaning, although evidence be offered tending to show that the intention of the parties differed absolutely from their language, unless the transaction be void from fraud, illegality, incapacity, or in some similar way. Lastly, no contract will be enforced, as a contract, if it have no (4) See ante, p. 557, n. (e). This intention, of course, is to be ascertained, in all cases, except that of latent ambiguity proper, by a development of the circumstances under which the instrument was made. It cannot be ascertained by bringing forward proof of declarations or conversations which took place at the time the instrument was made, or before, or afterwards. After considerable confusion, caused by some anomalous early cases, the law upon this point, especially in reference to wills, is clearly settled in England. In Beaumont v. Fell, 2 P. Wms. 140, it was permitted to be shown that Gertrude Yardley was the person intended to be designated by a testator by the name of Catharine Earnley [see the case stated ante, p. * 550, n. (d).] ~ In Thomas v. Thomas, 6 T. R. 671, there was a devise as follows: "Item. I devise to my granddaughter, Mary Thomas, of Llechloyd in Merthyr parish," &c. The testator had a granddaughter of the name of Elinor Evans, living at the place mentioned in the will, and a great-granddaughter, Mary Thomas, who lived at a place some miles distant from Merthyr parish. It was held by Lord Kenyon, that See plain and natural or legal meaning, by itself; and if admissible, extrinsic evidence can only show that the intention of the parties was one which their words do not express. But the supposed contract being set aside for such reasons as these, the parties will be remitted to their original rights and obligations. CHAPTER II. * 567 THE LAW OF PLACE. SECT. I. Preliminary Remarks. If one or both parties to a contract entered into it away from their home, or if a contract, or questions dependent upon it, come into litigation before a foreign tribunal, the construction of the contract, the rights that it gives, the obligation that it imposes, and the remedies which either party may have, may depend upon the law of the place where the contract was made, or the law of the domicil of the parties, or the law of the place where the thing to which the contract refers is situated, or the law of the tribunal before which the questions are litigated; or, to use the Latin phrases generally employed, the lex loci contractus, the lex domicilii, the lex loci rei sita, and the lex fori. The common law has left many of these questions unsettled; but the immense immigration into this country, the great and growing intercourse between it and foreign nations, and the extreme facility and frequency of foreign travel, and, more than this, the fact that our own nation is composed of forty-four independent sovereignties, all combine to give to questions of this kind peculiar importance, and, on some points, peculiar difficulty. It will not be possible to exhaust the consideration of these topics within the space which can, in this work, be given to them. But an attempt will be made to present the leading principles which must determine all these questions. To few of them is there a precise and certain answer given by the common law; and some of them have not yet passed into adjudication. By writers on the civil and continental law of Europe, they have been, perhaps all of them, very fully considered; but with such a diversity, and irreconcilable contrariety * of conclusion, that we shall confine ourselves, as far as *568 possible, to the common-law authorities. (a) (a) Mr. Justice Story's large work on the Conflict of Laws is in a great measure composed of those conflicting statements; and in his closing paragraph he says: "It will occur to the learned reader, upon a general survey of the subject, that many questions are still left in a distressing state of uncertainty as to the true principles which ought to regulate and decide them. Different nations entertain different doc SECTION II. GENERAL PRINCIPLES. The first principle we state is this. Laws have no force, by their own proper vigor, beyond the territory of the State by which they are made; excepting, for some purposes, the high seas, or lands over which no State claims jurisdiction. Without this limit they have no sanction; obedience cannot be compelled, nor disobedience punished; and no contiguity of border, and no difference of magnitude or power between two independent States, can affect this rule. For if the State, a law of which is broken, send its officers into another, and there by force or intimidation acts in reference to this breach as it might act at home, such act is wholly illegal; and if it thus acts with the consent of the foreign State, within whose dominion it goes by its officers, it is this consent only which legalizes its acts. (b) In the next place, all laws duly made and published by any State bind all persons and things within that State (c) *569 This is a general, and perhaps a universal rule; for the few seeming exceptions to it are not such in fact. A stranger is bound to the State wherein he resides only by a local and limited allegiance; but it is one which is sufficient to subject him to all the laws of that State, excepting so far as they relate to duties which only citizens can perform. For, as every State has the right, in law, of excluding whom it will, so it may put what terms and conditions it will upon the admission of for trines and different usages in regard to them. The jurists of different countries hold opinions opposite to each other, as to some of the fundamental principles which ought to have a universal operation, and the jurists of the same nation are sometimes as ill agreed among themselves.' And in Saul v. His Creditors, 17 Mart. (La.) 570, Porter, J., says: "The only question presented for our decision is one of law; but it is one which grows out of the conflict of laws of different States. Our former experience had taught us that questions of this kind are the most embarrassing and difficult of decision that can occupy the attention of those who preside in courts of justice. The argument of this case has shown us that the vast mass of learning which the research of counsel has furnished, leaves the subject as much enveloped in obscurity and doubt as it would have appeared to our own understandings, had we been called on to decide, without the knowledge of what others had thought or written upon it." (b) Le Louis, 2 Dods. 210; Blanchard v. Russell, 13 Mass. 4; Bank of Augusta, v. Earle, 13 Pet. 584; Smith v. Godfrey, 8 Foster, 379. (c) "The law and legislative govern. ment of every dominion equally affects all persons and all property within the limits thereof; and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the laws of the place. An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privilege distinct from the natives." Per Lord Mansfield, in Hall v. Campbell, Cowp. See Ruding v. Smith, 2 Hagg. Consist. 383. 208. eigners. All contracts, therefore, which are construed within the State in which they are made, must be construed according to the law of that State. The same thing is true, in general, when contracts are construed in a place other than that in which they are made; but this rule, and the exceptions to it, will be considered presently. In the next place, every State may, by its own laws, bind all its own subjects or citizens, wherever they may be, with all the obligations which the home tribunals can enforce. If laws are made which go further than this, they must needs be inoperative, as they cannot be enforced beyond the jurisdiction of the home tribunals, except with the consent and by the action of the foreign State. Lastly, it may now be said, on good authority, that foreign laws may have a qualified force, or some effect, within a State, either by the comity of nations, which is one of the fruits of modern civilization, or by special agreement, as by treaty or by constitutional requirements, as in the case of our own country, of which the Constitution requires that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." (cc) But in none of these cases do laws acquire, strictly speaking, the force of laws, within a sovereignty which is foreign to that in which they were enacted; nor could this be the case without a confusion of sovereignties. But the effect of such comity, aided in some instances by special agreements, or constitutional require- *570 ments, may be stated to be, that the laws of civilized nations. are permitted to have some operation in foreign States, so far as they in no degree conflict with the powers or the rights of such foreign States, or with the operation of their laws, (d) their general policy, or morality. (dd) The first and most general principle as to the validity of a contract rests upon obvious reasons, and certain expediency, if indeed we may not say that it is founded in the necessities of national intercourse; it is, that a contract which is valid where it is made is to be held valid everywhere. (x) And, on the other (cc) See Green v. Van Buskirk, 5 Wallace, 307. (d) Story quotes from Huberus a very precise statement of this rule. "Rectores imperiorum id comiter agunt, ut jura cujus. que populi intra terminos ejus exercita ten (x) Contracts which are merely against public policy, and are not illegal or im eant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium præjudicetur." Confl. of Laws. $29, n. 3. And see Zipcey v. Thompson, 1 Gray, 243. (dd) Eubanks v. Banks, 34 Ga, 415. moral, such as a carrier's limitation of its liability for the consequences of its own |