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 (mutua 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 "Usu exigente" (to borrow the language of the Institutes) " et humanis necessitatibus gentes "humanæ jura quædam sibi constituerunt" (n).

(k) Vide antè, 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 (0), 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 (9) 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

an enlightened application of the principles of their own municipal jurisprudence, and of that of other countries, partly out of the general usages of commerce (s), aided by the reasoning of writers of all nations upon Public Law.

V. Upon the application of principles derived from these sources to the decisions of particular questions, the fabric of International Comity has been slowly but steadily reared; it is daily acquiring consistency and strength, and has already become a Jus Gentium Privatum, having for its object the decision of questions affecting the interest of individuals, as the Jus Gentium Publicum, or, more properly, Jus inter Gentes (t), has for its object the decision of questions growing out of the mutual relations of communities.

VI. In illustration of the position in the last paragraph, it may be observed that some modern codes of European States contain express provisions upon the subject of the general Civil Status of the foreigner within their territory. The French, the Austrian, and the Prussian codes all contain some enactments on this subject. The French code recognises distinctly an equality between the native subject and the foreigner, as to the enjoyment and capacity of

of collision of laws to be found in the Roman Law, though defective and incomplete, see Savigny, viii. s. 344. Justinian introduced a real jus gentium by removing the distinction between cives and peregrini who belonged to the empire. (Cod. lib. vii. tt. v.-vi.)

(s) The Law Merchant is both a part of Private International Law and of the Common Law of England. This advantage is mainly due to the Roman Law and its commentators. It will be the subject of a separate and distinct consideration in a later part of this volume. Comity was wholly alien to the Feudal Law. See Barante, Ducs de Bourgogne, Introd.

(t) Donellus explains jus publicum as follows :- "Dicuntur res ad statum Reipublicæ pertinere, sine quibus aut civitas constitui, aut constituta stare incolumis non potest; id enim statum cujusque rei vocamus, quo res stat et sine quo non consisteret. Itaque si cognoverimus, quænam eæ res sunt et quid de his juris sit, simul jus publicum tenebimus."-Donelli De Jure Civ. Comment. lib. iii. ch. v.

acquiring civil rights (u). But on the subject of collision between native and foreign laws, it contains few special provisions, though some will be referred to hereafter in the discussion of foreign Contracts and Testaments.

The Prussian code contains an express acknowledgment of the principle that the foreigner has a right to the same administration of justice as the native (a). Where an exception is made, it is with the intent of relieving the foreigner from the effect of the collision of local laws and usages to which the native is exposed. Savigny remarks that the doctrine dominant at the time of the compilation of this code of Personal and Real Statutes had a marked influence on the terms of these texts of the law, and has led to important difficulties in their application, especially in the matter of Succession (y).

The Austrian code resembles the Prussian in this matter, and contains similar provisions with respect to foreigners (z). There are codes of other nations (a), European and American, containing positive enactments relating to the validity and interpretation of Contracts and Testaments and Successions of Foreigners (b).

VII. Private International Law has been generally discussed in treatises bearing the title of "Commentaries upon the Collision or Conflict of Laws," a mode of treating the subject which is certainly not philosophical. According to Savigny, The natural order of thinking upon the subject is to ask, as to the rule of law to be applied, the

(u) Code Civil, Art. 3, 11, 13. Massé, Le Droit Comm. liv. ii. t. ii. ch. i. (ed. 1874). [So in Italy (Codice Civile d'Italia, art. 3), “Lo straniero è ammesso a godere dei diritti civili attribuiti ai cittadini."] (x) Allgem. Landrecht, Einleitung, ss. 22-27, 34, 35, 40-42. (y) System des R. R. viii. s. 361.

(z) Oester. Gesetzbuch, s. 4, ss. 33-37.

(a) Vide post.

(b) Falix, Traité du Droit International Privé, liv. ii. tit. i. s. 7, (tome i. p. 243). See too the Brazilian Code (1857), Consolidação das Leis Civis, s. 5 (proof of birth, &c.), 34, 1260; 1266 (successions); s. 408 (status and age); s. 696 (contracts).

question What is the jural relation (c) which it is to govern? As to the jural relation, To what rule of law is it subject, or does it belong? The enquiry concerning the limits of territorial sovereignty or dependence, and concerning the difficulties and disputes arising from the demarcations of these limits, or from collisions, is in its nature a secondary and subordinate enquiry. Wächter (d), he adds, makes the just remark, that many writers who entirely separate the question as to the application of the law from the question as to the Collision, have been thereby led into the error of giving upon two identical questions contradictory answers (e).

VIII. The very interesting but very difficult question, What are the limits assigned by the Jus Gentium Privatum to the operation of the laws of one State within the territory of another? necessarily involves a twofold consideration of the conflict of laws:-1. With respect to the different positive laws of different States; 2. With respect to the diversity of the practice of States, as to recognising the authority of each other's laws, and giving effect to them beyond their proper sphere. The expression itself -Jus Gentium, or Jus Gentium Privatum-however convenient, and, though open, perhaps, to less objection than any other expression, is yet not strictly accurate; and the use of it must not lead us to forget that clear and important distinction between the concessions of Comity and the obligations of Right, which flow from the cardinal principles of International Law, viz. the Equality and Independence of States: "Debitor," says the Roman Law, "intelligitur is, a quo invito exigi pecunia potest" (f).

(c) So I have rendered the German word used by Savigny in this passage and familiar to the readers of Puchta and Blume, viz. Rechtsverhältniss.

(d) Wächter, ii. 34.

(e) Savigny, R. R. viii. s. 344.

(f) Dig. lib. 1. t. xvi. 108.

The two propositions-viz. that the laws of foreign countries are not admitted ex proprio vigore, but only ex comitate; and that the