6

But some jurists are of opinion that the entire body of private law should be divided into two categories-the law of persons, and the law of things; actions, which are the means the law affords to make our rights effectual, being considered under the different matters to which they relate. In his Analysis of the Law,' Sir Matthew Hale says, that, in order to render the subject more simple and intelligible, the law of things should precede the law of persons; and this plan, which is approved of by Mr Austin, has been followed by some eminent jurists, and is the order of the Prussian Code. On the other hand, many writers have followed in the wake of Justinian, by treating the law of persons before the law of things-such as Blackstone, Sir George Mackenzie, Erskine, and Pothier in his collected works; and this is the order of the Code Napoleon.

Equity, in its true and genuine meaning, is synonymous with natural justice; and to this the judge must have recourse where the laws are silent, and there is nothing else to guide his decision.1

system of

In the English system of jurisprudence there is a division English into common law and equity. But equity, as understood by equity. English lawyers, is that portion of law which is exclusively administered by the courts of Chancery, as contradistinguished from that portion of law which is exclusively administered by the courts of common law. "The separation of law and equity," says Lord Brougham, "is the other great peculiarity of English jurisprudence. Originally it probably was devised in order to mitigate the rigour of the positive law; but the discretion thus vested in courts of equity has for many ages been exercised according to rules as technical as those of the unwritten jurisprudence which guides the common-law courts. It is a more correct description of the courts of equity to say that they deal with questions of law different from those which the courts of common law deal with." 2

The division of the two jurisdictions proceeds on no very intelligible grounds, and leads to many anomalies. Until "British Constitution, p. 353.

1 Stair, 1. 1. 16. Portalis, Discours Preliminaire du Projet de Code Civil.

recently the courts of common law could award damages, but could not compel the execution of contracts; while the courts of equity could compel the execution of contracts, but could not give damages for their breach. If a suitor, therefore, wished to recover damages for breach of a contract, or for the commission of some wrong, or for some failure of duty, he had recourse to a court of common law. On the other hand, if his object was to enforce specific performance of a contract, or to bring a trustee to an account, or to recover a legacy from an executor, or to obtain an injunction, then his recourse was to a court of equity. By recent acts, courts of common law are empowered to order delivery of specific goods contracted to be sold, or chattels illegally detained, without giving the defendant the option of retaining them on paying the damages assessed; and, in all cases of breach of contract or other injury which they have jurisdiction to entertain, to grant injunctions against the repetition or continuance of such breach of contract or other injury; and, on the other hand, courts of equity are authorised, if they think fit, in certain cases, "to award damages to the party injured, either in addition to, or in substitution for, such injunction or specific performance." But, notwithstanding these improvements, many evils still attend this double system of judicature, which occasions great expense and delay to litigants, who are frequently obliged to appeal to two tribunals to obtain redress for a single wrong, or to settle one and the same dispute.

In Scotland there is no division into courts of law and equity, both these jurisdictions being combined and exercised. by the same courts, according to the system which is understood to be universal on the continent of Europe.

IV. OF THE LAW OF NATIONS, OR INTERNATIONAL LAW.

By the law of nations (jus inter gentes) we understand those rules which define the rights and prescribe the duties

1 Paterson's Compendium of English and Scotch Law, p. 361.

1854 (17 & 18 Vict., c. 125), s. 78, 79, and 82; 19 & 20 Vict., c. 97, s.

2 Common Law Procedure Act, 2; 21 & 22 Vict., c. 27, s. 2.

of independent states in their intercourse with each other.1 Before entering upon this subject, a short explanation may be given of a branch of jurisprudence sometimes called private international law, which has acquired great importance in modern times.

inter

Private international law has for its object the conflicts Private between the positive laws of different nations, and regulates national disputes between private persons who may be members of law. the same state or of different states.

This system of law deals with cases which come before the ordinary judicial tribunals. It determines before the court of what country a particular suit should be brought, and by the law of what country it should be decided. Conflicts of law arise not only from diversities in the jurisprudence of different nations, but from different systems of law prevailing in different parts of the same kingdom, of which no better example can be given than the British empire, which, though united under one allegiance, is governed by different laws in England and Scotland, and in various colonies and dependencies of the United Kingdom.

It is a fundamental principle that every nation possesses and exercises exclusive sovereignty and jurisdiction in its own territory. Hence the laws of every state affect and bind all property, movable and immovable, within its territory, and all persons resident within it, whether natural-born subjects or aliens. On the other hand, no nation by its laws can directly bind or affect property beyond its territory, or persons not resident within it, whether they have been born within it or not. Cases frequently occur, however, where, by the comity of nations, one independent state will give effect to the laws and judicial acts of another, so far as this can be done without prejudice to its own laws and to the fundamental and distinctive principles of its own internal policy. A familiar example of this is afforded by contracts entered into in a foreign country and intended to be performed there, which our courts are in the practice of enforcing according to the law of the place in which they were made, provided that 2 Kent's Com., vol. i. p. 1.

Public

international

law.

law is not repugnant to our own institutions or to good morals.1

Public international law designates the true law of nations which governs the mutual relations of independent states in their conduct towards each other. It is founded partly on the principles of natural law, which are binding on nations as moral persons as well as on individuals, and partly on a system of positive institutions fixed by public treaties and conventions, and the long-established customs of civilised states.

According to Grotius, this system of law derives its authority from the common consent of nations, or at least of a considerable number of them. Yet it may fairly be questioned whether the law by which nations profess to be governed in their mutual relations can be treated as a positive law of human institution, or regarded as law otherwise than in a figurative sense, because it is deficient in those sanctions which are inseparable from the positive law of every distinct state. First, independent states acknowledge no human superior invested with cosmopolitan authority to make positive laws between nation and nation as such; and as no nation can legislate for another, so no given number of nations has power to make laws to bind the rest, at least with respect to things left indifferent by the law of nature. Next, as there is no accepted tribunal to settle disputes between nations, the rules of international law are not judicially administered, and there is no supreme executive authority to enforce them.

If all the states of Europe were to concur in framing a general code of international law, which should be binding on them all, and form themselves into a confederacy to enforce it, this might be regarded as a positive law of nations for Europe. But nothing of this sort has ever been attempted. The nearest approach to such international legislation is the general regulations introduced into treaties by the great

1 See Dr Story's Conflict of Laws, 5th ed., Boston, 1857; Westlake's Private International Law, or the Conflict of Laws, with principal re

ference to English practice, London, 1858; Traité du Droit International Privé, par M. Fœlix, 3d ed., revue par Charles Demangeat, Paris, 1856.

powers of Europe, which are binding on the contracting parties, but not on the states that decline to accede to them.

To settle disputes between nations on the principles of justice, rather than leave them to the blind arbitrament of war, is the primary object of the European law of nations. When war has broken out, it regulates the rights and duties of belligerents, and the conduct of neutrals.

As the weak side of the law of nations is the want of a supreme executive power to enforce it, small states are exposed to great disadvantages in disputes with their more powerful neighbours. But the modern political system of Europe for the preservation of the balance of power forms a strong barrier against unjust aggression. When the power of one great state can be balanced, or kept in check, by that of another, the independence of smaller states is in some degree secured against both; for neither of the great powers will allow its rival to add to its strength by the conquest of the smaller states.

rights of

Between all distinct states nature has established a perfect Pacific equality of rights, and they are entitled to enjoy independence nations. and security of territory. It is a consequence of the liberty and independence of nations that all have a right to be governed as they think proper. That no state, unless authorised by treaty stipulations, is entitled to interfere in the internal concerns of another, is a general rule of the law of nations; but, in practice, it has been departed from in some extreme cases. Contests upon the question who shall be the responsible ministers of the Crown, and by what principles of administration the country shall be governed, are questions purely domestic in their bearing, with which foreign powers are not entitled to interfere. For this reason the British Government protested against the intervention of France with the affairs of Spain in 1822, which led to the overthrow of the Spanish constitution. On the other hand, questions of disputed succession have always been deemed matters which might justly be considered as involving the political interests of foreign states; and in such questions, wherever arising, the powers of Europe have, from time to time, according as