365, 428, 435, 474, Yates v. Thompson 260, 479 a, 479 g,

395, 398, 404, 407

358, 513, 517
260

[* § 1. Causes of difference of laws in different nations.

§ 2. How these diversities were disposed of in early times.

2 a. Conquered races retained their former laws.

2 b. There was no recognized rule as to subjects of different states.

3. The Law of Nations the result of convenience and necessity.

§ 4. Extension of commerce renders it indispensable.

§ 5. Illustration of the embarrassments otherwise arising.

6. This will occur, as between different provinces of the same empire.

7. The laws of one state have no legal force in any other state.

§ 8. The legal force of laws limited to the jurisdiction of the state.

9. This branch of the law is, private international law.

§ 10. It has not been systematically treated by common law-writers. 11. The Continental writers have treated the matter more fully.

12. They use the word statute for the whole municipal law.

13. These are personal, real, and mixed.

§ 14. Discussion of different definitions.

15. Great conflict of opinion on the subject.

16. Distinction between personality and reality of statutes, or laws, important to be borne in mind.]

§ 1. THE earth has long since been divided into distinct nations, inhabiting different regions, speaking different languages, engaged in different pursuits, and attached to different forms of government. It is natural, that, under such circumstances, there should be many variances in their institutions, customs, laws, and polity; and that these variances should result sometimes from accident, and

Upon the subject of this chapter the learned reader is referred to Burge's Commentaries upon Colonial and Foreign Law, Vol. 1, Pt. 1, ch. 1, p. 1 to 32.

sometimes from design, sometimes from superior skill and knowledge of local interest, and sometimes from a choice founded in ignorance, and supported by the prejudices of imperfect civilization. Climate, and geographical position, and the physical adaptations springing from them, must at all times have had a powerful influence in the organization of each society, and have given a peculiar complexion and character to many of its arrangements. The bold, intrepid, and hardy natives of the north of Europe, whether civilized or barbarous, would scarcely desire, or tolerate, the indolent inactivity and luxurious indulgences of the Asiatics. Nations, inhabiting the borders of the ocean, and accustomed to maritime intercourse with other nations, would naturally require institutions and laws, adapted to their pursuits and enterprises, which would be wholly unfit for those, who should be placed in the interior of a continent, and should maintain very different relations with their neighbors, both in peace and war. Accordingly we find, that, from the earliest records of authentic history, there has been (as far at least as we can trace them) little uniformity in the laws, usages, policy, and institutions, either of contiguous or of distant nations. The Egyptians, the Medes, the Persians, the Greeks, and the Romans, differed not more in their characters and employments from each other, than in their institutions and laws. They had little desire to learn, or to borrow, from each other; and indifference, if not. contempt, was the habitual state of almost every ancient nation in regard to the internal polity of all others.

§ 2. Yet even under such circumstances, from their mutual intercourse with each other, questions must sometimes have arisen, as to the operation of the laws of one nation upon the rights and remedies of parties in the domestic tribunals, especially when they were in any measure dependent upon, or connected with, foreign transactions. How these questions were disposed of, we do not know. But it is most probable, that they were left to be decided by the analogies of the municipal code, or were abandoned to their fate, as belonging to that large class of imperfect rights, which rests wholly on personal confidence, and is left without any appeal to remedial justice. It is certain, that the nations of antiquity did not recognize the existence of any general, or universal rights and obligations, such as among the moderns constitute, what is now emphatically called, the Law of Nations. Even among the Romans, whose jurisprudence has come down to us in a far more perfect and com

prehensive shape, than that of any other nation, there cannot be traced out any distinct system of principles, applicable to international cases of mixed rights. This has been in some measure accounted for by Huberus1 upon the supposition, that at the time to which the Roman jurisprudence relates, the Roman dominion extended over so great a portion of the habitable world, that frequent cases of contrariety or conflict of laws could scarcely occur.2 But this is a very inadequate account of the matter; since the antecedent jurisprudence of Rome must have embraced many such cases at earlier periods; and if there had been any rules, even traditionally known, to govern them, they could scarcely have failed of being incorporated into the Civil Codes of Justinian. In many of the nations, over which the Romans extended their dominion, the inhabitants were left in possession of the local institutions, usages, and laws, to a large extent; and commercial as well as political intercourse must have brought many diversities of laws and usages in judgment before the tribunals of justice. We have the most abundant evidence on this head, in relation to the Jews, after they had submitted to the Roman yoke, who were still permitted to follow their own laws in the times of our Saviour, and down to the destruction of Jerusalem.1

§ 2 a. When the northern nations by their irruptions finally succeeded in establishing themselves in the Roman empire, and the dependent nations subjected to its sway, they seem to have adoped, either by design, or from accident, or necessity, the policy of allowing the different races to live together, and to be governed by and to preserve their own separate manners, laws, and institutions in their mutual intercourse. While the conquerors, the Goths, Burgundians, Franks, and Lombards, maintained their own laws and usages and customs over their own race, they silently or expressly allowed each of the races, over whom they had obtained an absolute sovereignty, to regulate their own private rights and 12 Hub. lib. 1, tit. 3, p. 24.

The language of Huberus is, "In jure Romano non est mirum nihil hac de re extare, cum populi Romani per omnes orbis partes diffusum, et æquabili jure gubernatum imperium, conflictui diversarum legum non æque potuerit esse subjectum."-2 Hub. lib. 1, tit. 3, sect. 1.

* See 1 Hertii, Opera, § 4, de Collis. leg. p. 119, § 2; Id. p. 169, edit. 1716.

⚫ There are traces to be found in the Digest of the existence and operation of the Lex Loci. See Dig. lib. 50, tit. 1, l. 21, § 7; Id. lib. 50, tit. 6, l. 5, § 1; Id. tit. 4, l. 18, § 27; Id. tit. 3, l. 1; Livermore, Dissert. p. 1, n. a.

affairs according to their own municipal jurisprudence. It has accordingly been remarked, by a most learned and eminent jurist, that from this state of society arose that condition of civil rights denominated personal rights, or personal laws, in opposition to territorial laws.1

1

Savigny's History of the Roman Law in the Middle Ages. The whole passage is exceedingly interesting and curious; and therefore I quote it at large from Mr. Cathcart's Translation, Vol. 1, ch. 3, p. 99 to 104.—“When the Goths, Burgundians, Franks, and Lombards, founded kingdoms in the countries, formerly subject to the power of Rome, there were two different modes of treating the conquered race. They might be extirpated, by destroying or enslaving the freemen; or, the conquering nations, for the sake of increasing their own numbers, might transform the Romans into Germans, by forcing on them their manners, constitution, and laws. Neither mode, however, was followed; for, although many Romans were slain, expatriated, or enslaved, this was only the lot of individuals, and not the systematic treatment of the nation. Both races, on the contrary, lived together, and preserved their separate manners and laws. From this state of society arose that condition of civil rights, denominated personal rights, or personal laws, in opposition to territorial laws. The moderns always assume that the law, to which the individual owes obedience, is that of the country where he lives; and that the property and contracts of every resident are regulated by the law of his domicil. In this theory, the distinction between native and foreigner is overlooked, and national descent is entirely disregarded. Not so, however, in the Middle Ages; where, in the same country, and often indeed in the same city, the Lombard lived under the Lombardic, and the Roman under the Roman law. The same distinction of laws was also applicable to the different races of Germans. The Frank, Burgundian, and Goth, resided in the same place, each under his own law as is forcibly stated by the Bishop Agobardus, in an Epistle to Louis le Debonnaire. It often happens,' says he,' that five men, each under a different law, may be found walking or sitting together.'

"In the East-Gothic kingdom alone, this custom was not originally followed. There, an artificial and systematic plan was adopted, which belongs to the particular history of that nation, and cannot be brought within the general inquiry. All the other states followed the system of personal laws; and, this universal practice could not have arisen from accidental reasons, but from common views, principles, and wants. These may be appropriately illustrated at present. "According to the general opinion, the system of personal laws prevailed among all the German nations, from the earliest times; and it is customary to explain this circumstance by the love of freedom, so peculiar to these races. In the first place, however, it is difficult to perceive, how such an institution could arise merely from regard to liberty. Such an attachment might, indeed, create a wish among nations, or individuals to preserve their own laws, in a foreign country, or under a foreign yoke; but the question is, how were the predominant people induced to grant them this privilege? The benevolent and hospitable disposition of the victorious may have been partly the cause; but, their mere love of freedom affords no satisfactory explanation. This humane treatment of foreign