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 Folix, 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.

(ƒ) 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. decexciii.

(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.