COMMENTARIES

UPON

INTERNATIONAL LAW.

CHAPTER I.

JUS GENTIUM-PRIVATE INTERNATIONAL LAW.

I. JUS INTER GENTES, or, as it is sometimes called, Public International Law, has been the subject of the three preceding volumes. It remains to consider in this, the last volume of the whole treatise (a), Jus Gentium, or, as it is sometimes called, Private International Law, or Comity (b) (Comitas) (c).

(a) In redemption of the pledge given, vol. i. § xvi.

(b) "Denique nonnunquam dum populus vicinus vicini mores comiter vult observare, et ne multa bene gesta turbarentur, de moribus statuta territorium statuentis, inspecto effectu, solent egredi."-P. Voet, De Statutis eorumque Concursu, s. iv. cap. ii. 17.

John Voet, speaking of the rule that moveables are governed "lege loci, in quo eorum dominus domicilium fovet, ubicunque illa verè extiterint," observes, that in this case "de juris rigore communi, quasi gentium omnium consensu laxatum est; sic ut ex comitate profecta regula praxi universali invaluerit."-Ad Pandect. lib. i. tit. iv. pars

ii. num. 12.

So Huberus, De Conflictu Legum, s. 2, “id comiter agunt," &c.

The word occurs once in the Digest: "Liber autem populus est is," &c., "sive fœdere comprehensum est ut is populus alterius populi majestatem comiter conservaret."-Lib. xlix. t. xv. 7, § 1.

"Une espèce de droit des gens et de bienséance."-Bouhier, cited by Felix, s. 11, p. 24, ed. Demangeat.

"La compiacenza vicendevole."-Rocco, p. 119.

"Mutua compiacenza."-Rocco, pp. 120, 253.

(c) See a notice at the end of this chapter, of the Sources of Private International Law.

II. We have seen, in the first of the foregoing volumes, that Sovereignty united with Domain (dominium eminens) establishes, as a fundamental rule of International Law, the exclusive jurisdiction of a State over all persons, acts, and things, within its territories (d); and, of course, over suits and actions in Courts of Justice, civil or criminal, arising within these limits.

This is a proposition which does not only concern the natives of a territory, who are naturally subject to such a jurisdiction. There is no country, not only in Europe, but in the world, since the opening of China and Japan, in which there may not be foreigners, both transient and resident (e). Being allowed to enter a State, of which they are not natives, they have a strict right to be secured from injury while therein; the ill-usage of them, whether by positive mal-treatment (f) or by a denial of

(d) The exception of the ambassador, which is a matter stricti juris inter gentes, and not comitatis juris gentium, is mentioned, vol. ii. pt. vi. Puchta, Instit. i. 360.

(e) "Civil laws, when they causelessly and unreasonably exclude foreigners either from coming into the territories at all, or from trading there, are inhospitable; but these inhospitable civil laws are no otherwise contrary to the laws of nations, than as this law, like the general law of nature, enjoins the duties of humanity and benevolence. Every nation has by the law of nations, as every individual has by the law of nature, a right to judge for itself how far its intercourse, either of the commercial or of the friendly sort, is likely to be detrimental to itself; so that to cut off either or both sorts of intercourse, will be no act of injustice, though it will be wrong if it is done causelessly. A nation has a moral power to withhold its benevolence; and they from whom it is withheld unreasonably, though they are not treated friendly, are not injured."—Rutherford's Inst. of Natural Law (2nd edit. 1832), p. 489.

(f) The Jus Albinatus, or Albinagii (alibi natus), or droit d'Aubaine, now happily abolished in all civilized states, whereby the Crown seized on the property of the deceased foreigners, was, perhaps, strictly speaking, a violation only of Comity; but it was on the confines of a legal as well as a moral injustice. Some relic of this barbarism appears still to linger in parts of Germany, in which it would seem that the foreign heir pays 10 per cent. of his inheritance to the State. -Blume, S., des Deutsches P. Rechts, s. 452. This is called Gabella

justice (g), may be, and ought to be, resented by the State of which they are members. A refusal of redress in such cases would be a justifiable cause of war. If by long usage and custom they have been allowed to enjoy certain rights; and these, though originally the fruit of free concession, are violently, suddenly, and without equitable notice, withdrawn from them; an injury is done to them, for which it is the duty of their own State to obtain reparation (h), the denial of which justifies a recourse to reprisals (i), or war (j), according to the exigencies of the case. But here the narrow province of International Right ends, and the wide domain of International Comity begins. For though the laws of every State are built partly upon general principles common to all States, jus gentium, they are also partly built upon positive enact

Hereditaria. -Martens, liv. iii. c. iii. s. 90; Vattel, liv. ii. c. viii. ss. 112-114; Merlin, Rép. de Jur., Aubain; Rocco, p. 63, speaks of it in a manner worthy of the great school of Neapolitan jurists: "l'albinato, questa usanza derivata dalla barbarie delle nazioni," &c., was, he says, in force at Naples.

Pütter, Das praktische Europäische Fremdenrecht (Leipzig, 1845), Erster Abschnitt, 13. This is, generally speaking, a good little work; though the present English Law is incorrectly stated with respect to the operation of Domicil upon the wills of English subjects, p. 23.

Rocco speaks of domiciled foreigners as having the same private rights as natives of the Two Sicilies: "Oggidì avvenga che quasi tutte le leggi della colta Europa ammettano i forestieri ad esercitare i diritti civili, gli respingono poi allora che si tratta di partecipare alle cariche dello Stato" (p. 39); but of non-domiciled strangers as enjoying only those rights which their country accords to the natives of the Two Sicilies, "sol quando s' intrametta la reciprocazione fra i due Stati" (p. 40). Here he is speaking of " Esteri non-domiciliati," or, as he afterwards calls them, "semplicemente residenti" (p. 59).

(g) France, however, has thought it consistent with Comity to refuse, as a general rule, to entertain suits between two foreigners in her courts of justice.-Vide post, §§ dcccxcii. dcccxciii.

(h) In the case of rights secured by treaty and withdrawn in time of peace, the casus belli is, of course, beyond the reach of doubt, vol. iii. § XXXV.

(i) Vide antè, vol. iii. ch. 2.

(j) Vide antè, vol. iii. § xxxv.

ments, jus civile; and, though there is, moreover, a speciale jus inter gentes (k) common to all Christian States, the practical application of those general principles and of this jus speciale may vary in different States. There is no universal positive law for all mankind. Each State has its own municipal code; though each code contains many principles common to all: and each individual is a member of the great family of mankind.

III. States becoming, under the blessed influence of Christianity and its attendant civilization, more and more impressed with a deeper sense of national duty, and with the principles of universal justice, having regard also to their reciprocal advantages and mutual interests (mutuæ vicissitudinis obtentu-ob reciprocam utilitatem) arising from the impartial administration of justice to the foreigner and the native (1), have tacitly agreed (m) to recognize and adopt certain common rules and maxims of jurisprudence, both civil and criminal, with respect to the individual foreigners sojourning within their territory, and with respect to the operation therein of the laws. of a foreign State. "Usu exigente" (to borrow the language of the Institutes) " et humanis necessitatibus gentes "humanæ jura quædam sibi constituerunt" (n).

(k) Vide ante, vol. i. pt. i. c. i.

(1) "Le genti colte prestano mutuamente osservanza agli atti celebrati, e alle obligazioni e a' diritti nati nelle stranie contrade. E le qualità personali legittimamente infisse nel luogo del domicilio si mantengono mai sempre intere col mutar che si fa della residenza e passaggiera dimora. Quantunque il diritto delle genti che necessario dai giuspubblicisti si appella non ordini questa vicendevole applicazione e autorità delle leggi di uno stato sul territorio dell' altro. Nissuna primitiva obbligazione stringe le nazioni a riconoscere provvedimenti stranieri. Nullameno il diritto delle genti volontario, il quale intende alla perfezione progressiva dei popoli, altamente il richiede."-Rocco, p. 111.

(m) See in Wheaton's Hist. 726-8, Mr. Webster's Letter, in which the difference between Comity and strict Right is much dwelt upon.See 18 Curteis's (Americ.) Rep. 203.

(n) Lib. i. t. ii. 2.

IV. This consent has manifested itself in various ways; in the decisions of Courts of Law, in writings of accredited jurists, in acts of the executive authority (o), such as the declaration with respect to the security of foreign merchants, on the breaking out of war, contained in the Magna Charta of England (p). More recently also, France, as will presently be seen, and some other nations, have incorporated into their national code express provisions relating to this subject.

But France had suffered before her first revolutionand the same may be predicated of England, and the United States of North America-a system of Private International Law (Jus Gentium) to grow up, partly out of the analogies furnished by the Roman (2) Civil Law (r), partly out of

(0) Story, s. 38, n. 1.

(p) Vide vol. iii. § lxxviii.

(q) Story unfortunately, in my opinion, in a treatise on International Law, uses the words, "common law," meaning the English and North American Law; but the Roman Law is the "common law" of States.

(r) See vol. i. p. xlvii, Preface to first edition of this work.

Early in the history of ancient Italy the intercourse between Romans and those who were not Romans created, of necessity, what was in substance an International Private Law or Comity, to which the name jus gentium (“quod apud omnes gentes peræque custoditur, juris gentium est ") properly belonged, as distinguished from the jus inter gentes. The history of its growth from its introduction through the annual and perpetual edicts of the Prætor to its full development in the compilations of Justinian, in which it appears as the law of the Empire, is a most interesting subject, but far beyond the limits of any note. These compilations were naturally the principal storehouse from which the rules of modern Comity were taken; though, unfortunately, an ignorance of the history of the Roman Law, and a superficial acquaintance with its whole system, led especially, but by no means solely, in England, to many mistakes in the application of the rules of this jurisprudence: vide post, remarks on the misapplication of the maxims of law as to nudum pactum in our municipal law, and in Private International Law of mobilia sequuntur personam-locus regit actum, &c. See some good remarks on the Roman Jus Gentium, Mommsen, Römische Geschichte, i. 146; iii. 540; on the misapplication, Wächter, Die Collision der Privatrechtsgesetze verschiedener Staaten (in Archiv für die civilistische Praxis, vol. xxiv. p. 242). That there are, however, rules on the subject