UPON INTERNATIONAL LAW. PRIVATE INTERNATIONAL LAW OR COMITY. BY ROBERT PHILLIMORE, D.C.L., Q.C., ADVOCATE TO HER MAJESTY IN HER OFFICE OF ADMIRALTY, "Plaisante justice qu'une rivière ou une montagne borne." PASCAL. Pensées, part i., art. vi., s. 8. VOL. IV. LONDON: WILLIAM BENNING & SON, 5, GREAT QUEEN STREET, LINCOLN'S INN FIELDS. [The Author reserves the right of translating this Work.] PREFACE. I. I HAVE endeavoured in the publication of this last volume of my Commentaries upon International Law, fully to redeem the pledge given in the first chapter of the first volume. (a) Professional avocations have interrupted and delayed till now the complete execution of my original design. The former volumes, in accordance with the plan of that design, treated of the relations, and the laws which govern the relations, between independent States, or, in other words, they were occupied with the consideration of Jus inter Gentes, or Public International Law. 吉 This volume is devoted to the consideration of Jus Gentium-Private International Law, or Comity: that is, strictly speaking, the law which ought to govern the legal relations of individuals not being the subjects of the State which administers the law. Practically speaking, however, it embraces also the legal relations of persons domiciled, or, in some cases, only resident abroad; and rights acquired abroad, or existing in objects situate abroad. Pitn 514 715 .11 V. H (a) Vol. i. s. xvi. 56002 This subject has been treated of, till lately, under the title of the Conflict of Laws,—a title which I think has been justly censured as expressive of a limited and unsound view of this important portion of jurisprudence; but under which title so able a treatise has been written by Story, substantially, upon Private International Law, as, perhaps, to render some apology necessary on the part of any subsequent writer who publishes a treatise on the subject, even on the assumption that he adopts a sounder theory and a more correct title. My apology, if one be needed, is, that the treatment of this subject was necessary to the completion of the plan upon which my Commentaries upon International Law were written. II. The end of all justice, wheresoever administered, is correctly stated by the Roman lawyers, suum cuique tribuere to give to each person, his own, his due, his right, his jus, be he subject or foreigner. The enquiry, What is the jus of an individual, shows that it must be attached to one of these predicaments: 1. to a Person; 2. to tangible or corporeal Property (rei); 3. to incorporeal Rights. The nature of the predicament must be examined into as a fact before a sentence of what is just can be passed respecting it. As the fact of relation is ascertained with greater accuracy, as the nature of it is considered with deeper wisdom, the juster will be the sentence pronounced upon it. The more cultivated the mind of the individual, the more accurate will be his judgements as to what is just; the more cultivated the mind of a people, the deeper will be their insight into the true nature of legal (a) relations, and the better will be their general definitions of what is just, or, in other words, their laws. The variety of definitions of what is just, or the variety of laws which prevail in different States, arises in great measure from the different degrees of this culture in different States. The general opinion of what is just, strengthened by custom and positive enactments, becomes the jus civile of a State. But when many States agree, as all civilized States do, in their opinions of what is just with reference to many legal relations, the jus civile becomes to a great extent identical with a jus gentium. (b) Thus, the Roman Law recognized two classes of obligations; those juris civilis, and those juris gentium, and under the latter head ranked almost all contracts. (c) These permanent and invariable relations, laid in the necessities and nature of man, may be modified, but cannot be annihilated, by positive law, when the intercourse of the subjects of different States brings these relations at different periods of time within the (a) Perhaps jural would have been a better word. I have been deterred from using it by a dislike to introduce a new word without the sanction of any accredited English authority. (b) Vide post, p. 421. (c) "Ex hoc jure gentium omnes pæne contractus introducti sunt, ut emtio, venditio, locatio, conductio et alii innumerabiles." Inst. I. i. t. ii. s. 2. Vide post, p. 422. . "Sed hæc quidem verborum obligatio dari spondes ? spondes pro. pria civium Romanorum sunt, ceteræ vero juris gentium sunt, itaque in |