[14] Note 8 to Grotius, L., ii. c. iii. § 3.
[15] Bishop Percy’s translation (1847), p. 138.
[16] We have seen this in the progress made in the three instances given above at the Congress of Paris (1856), the Conference of Berlin (1878) and the Hague Conference of 1907.
INTERNATIONAL LAW (PRIVATE). There is in every territory the law of the land, or territorial law, by which the courts decide all cases that include no circumstances connected with any foreign territory. Often, however, such a circumstance suggests the question whether justice does not require that the law of some other territory shall be applied. Thus the Gretna Green marriages, by which English minors escaped the necessity of banns or the consent of parents or guardians, suggested the question, which was answered in the affirmative, whether even in England their validity ought not to be tried by the law of Scotland, where they were celebrated. Often, again, the question is suggested whether justice does not require that the courts of law should allow some effect to foreign legal proceedings, such as a judgment obtained or litigation pending abroad. Such questions as these are answered by private international law, which, since both laws and legal proceedings are emanations of public authority, may be defined as the department of legal science which is concerned with the effect to be given in the courts of law of any territory to public authority of another territory. The extradition of criminals is also an effect given to foreign public authority, but rather by the government which surrenders the criminal (see [Extradition]) than by the courts of law, whose only function is to check the surrender so far as the domestic legislation allows them to do so. If private international law were defined as the effect to be given by any mode in one territory to the public authority of another, extradition would be included in it, as is often done; but since the principles governing extradition have little to do with those applicable to other cases, it seems best to treat it as a separate department of law, as is generally done in England.
Comity of Nations.—In the 17th century the Dutch jurists Paul and John Voet and Huber brought forward a view which has since been largely adopted in England and the United States, namely, that the effect given by courts of law to foreign public authority is only due to the comity of nations, but for which every possible question before them would have to be decided by the law of the land. Comity, in that phrase, may only be intended to express the truth that foreign public authority has no inherent effect, without denying that the effect which domestic public authority allows to it is dictated by justice. But the limitations implied in the popular meaning of comity have sometimes been made the ground for deciding questions of private international law in the manner supposed to be most for the interest of litigants belonging to the territory; the phrase is consequently reprobated by most European continental writers, and had better be dropped. The justice on which private international law is founded acknowledges no interest but the general one of intercourse between persons sharing a common civilization in different countries. This interest, as manifesting itself in the domain of law, it seeks to satisfy and it is therefore a true legal justice, rightly classed under law, droit, recht, diritto, derecho and other corresponding terms.
Of the two words which, together with law, make up the title of our subject, private is justified by the fact that its application is between litigants in courts of law, and not between governments except so far as they may be such litigants. International (although interterritorial would be better) is justified by the facts that public authority, which may be internationally foreign, has to be considered, and that governments display a great interest in the question by concluding treaties about it, and occasionally even by suspending diplomatic relations when a court of one country has applied to the subjects of another a rule which the government of the latter deems unjust. But those who think that the primary division of law should be into public and private, and not into international (or interterritorial) and territorial, object to the order in which the three words of the name are usually placed, and call the subject “international private law.”
Conflict of Laws.—This is another name for our subject, and indeed an older one than “private international law,” besides being still much used. But although laws may differ, they cannot properly be said to conflict, unless each can lay a just claim to application in the same circumstances. Now this does not happen. The justice which points out that in certain cases effect ought to be given in one territory to the laws or legal proceedings of another really traces the limits of laws and legal proceedings in space; and the tracing of limits is rather the prevention of conflict than its solution. Savigny has well pointed out that our subject is analogous to the determination of the limits of laws in time, which has to be made when the just application of a new enactment is to be distinguished from the ex post facto application which cannot justly be allowed it. The truth which is aimed at in the phrase “conflict of laws” is that the main problem of our subject is the selection of a law for each given case; but different laws are candidates for selection, not from anything in them as laws, but from differing opinions about the justice of the case. From this selection, again, will be seen the contrast between private international law and attempts at the assimilation of the laws of different countries. To a great extent such assimilation is desirable, especially in mercantile law, but it must always be limited by different views of social order and differences in national habits of thought and action. So far as it is realized, private international law comes to an end with the occasion for selection.
Territory.—This word, as entering into the definition of private international law, does not imply a separate state, whether sovereign or semi-sovereign; it includes every geographical area having a separate legal system, England and Scotland, as well as France or Germany. The case of the Gretna Green marriages illustrates the necessity of rules of private international law between all such, as well as between areas internationally foreign to one another; and indeed the rules are so applied, and in the language of our subject, the area of every separate legal system is foreign to every other such area. Only where a rule contemplates a person as attached more or less permanently to a particular territory, the tie which so attaches him to it may be either nationality or domicile if the territory is a separate state, as France; but it can only be domicile if the territory is combined with others in one state. Nothing but domicile can distinguish British subjects as belonging to England, Scotland or Jamaica, or citizens of the United States as belonging to New York or Pennsylvania.
Legal rules must have relation to the physical and mental characters, and the consequent habits of action, of the populations for which they are intended; they would not satisfy legal justice if they endangered social order as understood and desired by those populations, or if they failed to give due effect to the expectations of parties. This must be true for the rules of private international law as well as for those of any territorial law, and it leads us to ask whether the differences which preclude the universal identity of the latter must not also preclude the existence of the former. The answer is: (1) That where circumstances connected with different territories are concerned, wise rules for the selection of a law will generally give better effect to the expectations of the parties than an exclusive adherence to the territorial law of the court; (2) That the circumstances in which a foreign law is held to apply are exceptional as compared with those in which the domestic law applies, and naturally occur oftenest among the persons and in the affairs having most of a cosmopolitan character, so that the moral shock of applying to them a law founded on a foreign social order is greatly attenuated; (3) That throughout Christendom (to which Japan has now been added for legal purposes) there does exist, though not an identity, yet a considerable similarity in views of social order and prevalent habits of thought and action. Within the same geographical limits there also exists another requisite for the working of a system of private international law, namely, a mutual confidence between countries in the enlightenment and purity of their respective judicatures, to whose proceedings the respect enjoined by the rules of our subject is to be mutually given.