One State may be lawfully compelled by force to pay its debt to another member of the community of States. But the favour or grace of Comity may not lawfully be exacted by force. And from the same authority is derived the maxim so often cited on the subject, "Extra territorium jus dicenti impunè non paretur" (g). IX. The writer upon International Law is bound to draw the distinction which has been mentioned between Comity and Law. But having done so, and shown on what terms Comity is admitted to govern the legal relations of the subjects of different States, he may and ought to insist that the jus gentium, like the jus inter gentes, is built upon the hypothesis of a common law for a Commonwealth of States (h)" Sub diversitate judicum, una justitia "” (i). And as the National Jurist endeavours to apply rules of دو judicial power will exercise a discretion with respect to the laws they may be called upon to sanction, and, if they be manifestly unjust, or calculated to injure the citizens of the State in which that power is exercised, refuse to sanction them-appear to have been very strongly asserted by the Courts of the United States of North America in the following cases :— Blanbord v. Russell, 13 Massachusetts Rep. pp. 1-6. Tappan v. Poor, 15 ib. pp. 419–422. Ingraham v. Geyer, 13 ib. pp. 146-7. Cambridge v. Lexington, 1 Pickering's Rep. p. 506. These cases are cited in Curteis's United States Digest, vol. ii. p. 762, n. 46. See also a leading case, Saul v. His Creditors, 17 Martins' Americ. Rep. pp. 569, 590 to 596; s. c. 8 Louisiana Rep. pp. 665, 675 to 678. [See Lord Selborne's judgment in Ewing v. Orr Ewing, L. R. 10 App. Ca. A.D. 1885 at p. 513.] (g) Dig. lib. ii. t. i. 20. A maxim relating to the limits of different domestic jurisdictions borrowed from the municipal law of the Romans, and applied, like others, on account of its intrinsic worth, by States to each other. See remarks, vol. i. pt i. ch. iv. (h) Savigny, R. R. viii. ss. 348, 349. He remarks, justly, that this theory of a community of States, and the constant tendency to adopt a uniform practice upon the subject of Foreign Law, were unknown to the Romans, and are due to the rapid intercourse among the subjects of different States in modern times. (i) Cassiodorus, as cited by Miltitz, Manuel des Consuls, i. 162. justice to cases which come in contact with different laws of different independent portions or provinces of one integral State, so ought the International Jurist to consider cases which come in contact with the laws of different States of one Commonwealth, and to apply the like rules of justice. To both the remark of Pascal is equally applicable, "Plaisante justice qu'une rivière ou une montagne borne" (j); or, as it is admirably put by Cicero, "Qui autem civium rationem dicunt esse habendam, externorum negant, hi dirimunt humani generis societatem" (k). It is true that the National Jurist may, with respect to different portions of one State, invoke the sanction and enforcement of a common superior; while the International Jurist cannot do this, for States have no common superior; but he finds a practical substitute in the pressure of the necessities, and mutuality of the exigencies, of States. Every invention of man (and the age teems with such devices), which renders more easy and more quick the intercourse of the subjects of different States, increases this pressure, and strengthens this mutuality. To treat the foreigner and the native as entitled to a like measure of justice has become the manifest interest, as it has ever been the clear duty, of States. The vision of the great statesman and orator does not appear incapable of practical fulfilment to the Christian Jurist, who sees how marvellously time and space are, relatively to the past, annihilated, and how the remotest corners of the earth are becoming knit together by agencies unknown, undreamt of, by antiquity. The day may not be far off when civilized man, wherever he goes, sese "non unius circumdatum moenibus loci, sed civem totius. "mundi, quasi unius urbis agnoverit " (l). X. In England, the subjects (m) of the other States of (j) Pensées, art. vi. s. 8. (k) De Off. lib. iii. c. xi. (1) Cicero, De Legibus, p. i. c. xx. 166. (m) "And as the judges furthermore may informe the Lords, howe 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. (0) 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 (r) 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. Felix, tit. prelim. 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 (s) 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. (n) Vide antè, vol i. pt. i. ch. iii. |