Christendom have been, speaking generally, governed, in such cases as are mentioned in the last section, on the same principles of law as her own subjects of Scotland and of her Colonies. "The jus gentium" (said an eminent English civilian and judge in the last century) "is the law "of every country" (n).

The same may be predicated of other States, especially of Prussia, but not, as will be seen, without great deductions, of France (0).

XI. And it may be observed that this branch of jurisprudence has been, and is being, more scientifically developed than others, by judges and by jurists. It is a matter for rejoicing that it has escaped the Procrustean treatment of positive legislation, and has been allowed to grow to its fair proportions under the influence of that science which works out of conscience, reason, and experience the great problem of Law, or Civil Justice. The judge who has to decide by what Law a particular Jural Relation, which comes into contact with the laws of divers States, shall be governed, ought to apply to this contested Jural Relation that local positive law to which it is, in its true nature, properly subject or appertaining, without

former lawes of this realme presentlie stand touchinge any matter there debated. For many they bee also informed by the Masters of the Chancery (of which the greatest number have alwaies been chosen men skillfull in the Civil and Canon Lawes) in lawes that they shall make touching forraine matters, whom the same shall accord with Equitie, Jus Gentium, and the Lawes of other nations."-A Treatise of the Masters of the Chancerie, date between 1596 and 1603 (Hargrave's Law Tracts, p. 309).

(n) Scrimshire v. Scrimshire, 2 Haggard's Consistory Rep. p. 417. Ruding v. Smith, ib. p. 384-6.

So Lord Stowell (in a prize case, it is true, but referring to the Jus Gentium, and not the Jus inter Gentes): "This is the law not of the Court only, but of all Courts, and one of the first principles of universal jurisprudence.”—The Betsy, 1 C. Rob. Adm. Rep. p. 94. So he speaks of "The general rule of civilised nations as to derelict. The Aquila, ib. p. 42. "Salvage is a question of the jus gentium."– Ib. p. 279.

(o) See Felix, Préface de la seconde édition, p. vii.

distinguishing whether that law be the law of his own or of a Foreign State.

The State ought to permit its judge to treat the Foreign Law as one of the sources from which, in the particular case before him, he is to derive justice. It ought, as Lord Stowell observes, to make it a principle of its own law to adopt the law of the foreigner (p).

XII. Nevertheless, there are exceptional restrictions which limit, in a Commonwealth of States, the application of this principle of a Common Law; they grow out of the reason and nature of the thing. In every State there are various kinds of laws, the special nature of which is not in harmony with this principle.

To define the limits of these exceptional restrictions is among the most difficult tasks which can be imposed upon the jurist.

XIII. These exceptional restrictions partake of (q) a political and () of a moral and religious character: for International Comity, like International Law, can only exist in its lowest degree among Independent States; in its next degree among Independent Civilized States, and in its highest degree among Independent Christian States (r). There is a third class of these exceptional restrictions, namely, laws of a stringent, positive character, which are the peculiar growth of the peculiar institutions of a Foreign State,-an exotic incapable from its nature of being transplanted into a strange soil. Under these three categories it would seem that all these exceptional restrictions may be classed.

XIV. First, with respect to those of a political character.

(p) Dalrymple v. Dalrymple, 2 Haggard's Consistory Reports, p. 39; et vide post.

(g) Savigny, R. R. viii. ss. 349 365.

Story, s. 28.

Falix, tit. prélim. chap. iii. (tome i. p. 28).

(r) Vide antè, vol. i. pt. i. ch. i.

The law of the Foreign State cannot be admitted into another State if it be contrary to any fundamental or constitutional law or usage of that State.

Under this head are included the following propositions:

1. That the Foreign Law be not incompatible with the safety of the State.

2. That it be not prejudicial to the public interest of the State.

Under this head also may be mentioned the universal rule that one State will not administer within its territory the Criminal Law of another: How far the generality of this proposition may have been qualified by Treaties on the subject of Extradition, and the practice of States thereupon, has been considered in a former volume of this work (s).

XV. Secondly-With respect to Exceptional Restrictions arising from Moral and Religious considerations, no Foreign Law which enjoins or sanctions an institution, custom or practice, at variance with the immutable Laws of Right written by the finger of God on the heart of man (t), or with those which have been the subject of His express Revelation, can be admitted into a Christian State (u).

XVI. With respect to the Exceptional Restriction arising from considerations of the stringent positive character of the Foreign Law, a law of this character, the peculiar growth of accidental circumstances, alien to the feelings, habits, and Laws of the State which would have to enforce it, has no claim to be admitted, on the ground of Comity, concerning which, in such a case as this, the

(8) Vol. i. pt. iii. ch. xxi.

(t) "Pacta quæ contra leges constitutionesque vel contra bonos mores fiunt nullam vim habere indubitati juris est."-Cod. lib. ii. t. iii. 6. "Pacta quæ turpem causam continent non sunt observanda.". Dig. lib. ii. t. xiv. 27, § 4.

(u) Vide antè, vol i. pt. i. ch. iii.

rule of Huberus is sound-"Quatenus sine præjudicio in"dulgentium fieri potest" (a).

XVII. A case may also be imagined not only where there is a conflict between the laws of the Foreign State and the State of the forum, but also, where it is a matter of doubt which should prevail. In such a case, the tribunals of North American United States (y) have declared themselves strongly in favour of the law of the actual forum. Probably such a case would be of very rare occurrence, but the principle of such a decision appears to the writer of these pages very questionable (z).

XVIII. The foregoing categories appear to comprise the principles which regulate the application, and restrain the enforcement of Foreign Laws, according to the Comity of States; whether that Comity be administered in Courts of Justice, or by acts of the Executive or of the Administrative authorities (a). Many illustrations of the possible application in practice of the restrictions may be imagined.

For instance,-no Christian nation (b) could be ex(c) De Conflictu Leg. lib. i. tit. ii. s. 2.

Story, speaking of Assignments by Bankruptcy Laws, says, "Besides, National Comity requires us to give effect to such assignments only as far as may be done without impairing the remedies or lessening the securities which our Laws have provided for our own citizens,' s. 414. He relies on the doctrine of Huberus.-Vide post, as to Bankruptcy and its effects in Foreign States.

(y) Story, s. 28; see Saul v. His Creditors, vide ante, § viii. n. (f). (2) The mischievous extent to which this doctrine may be easily pushed appears in the decision of the Louisiana tribunal in Olivier v. Townes, 2 Martins' (Americ.) N. S. Reports, p. 93; s. c. 7 Martins, p. 50. (a) Fenton v. Livingstone, 3 Macq. H. L. C. p. 497.

(b) But a Christian State may possess a Heathen dependency, which it allows to continue under its own laws, and then, if the last Court of Appeal be in the Christian mother State, it must recognize the Heathen Law, even in the case of marriage. See, as partly illustrating this point, a decision of the Privy Council.-Ardassar Cursetjee v. Perozeboye, 10 Moore's P. C. Rep. 374. So it may allow an unchristian race, like the Jews, to live according to their own laws in the Christian territory. But these are questions rather of Public than International Law.

pected to tolerate Polygamy, or Incest, within its territory, because the persons practising it were subjects of a country which permitted such connections. Nor could a Christian nation, whose law regarded certain marriages as incestuous which other Christian nations sanctioned, be required to recognise the validity of such marriages in the cases of its own subjects, though celebrated in a country which permitted them. And it has been ruled in an English Court, that when a Court of one country is called upon to enforce a contract entered into in another, it is not enough that the contract should be valid according to the law of the latter; for if any part of the contract is inconsistent with the law and policy of the former, the contract will not be enforced even as to another part of it which may not be open to this objection, and which may be the only part remaining to be performed (c).

No country which held the status of slavery to be abominable, and unwarranted by the laws of God and man (as most Christian nations do at this moment), would allow any title to property of this description to be set up, or any legal consequences to be drawn from it within her dominions.

XIX. In the case of the Creole (d), which formed the subject of a dispute between Great Britain and the United States of America in 1842, this doctrine was steadily maintained by the former power. That vessel, having been driven by stress of weather into the Bahamas, a British port, certain slaves on board her, who were being conveyed from one port of America to another, where the curse of slavery then existed, rose upon their master, overpowered him, and effected their escape. The British authorities refused to allow any force to be used towards these persons to compel them to return to slavery ;—the

(c) Hope v. Hope, 8 De G., M. & G. p. 731; 3 Jur. N. S. p. 454; 26 L. J. Ch. p. 417.

(d) See the case of the Creole considered by R. Phillimore, in a letter to Lord Ashburton, published in 1842.