which has been termed Private International Jurisprudence. This branch of Juridical Science, which is concerned more especially with the conflict of Laws arising out of the relations of civil life, which exist between the citizens of different States, proceeds upon a wise and liberal regard to the mutual convenience and mutual necessities of mankind. The real difficulty is to ascertain what principles in point of public convenience ought to regulate the conduct of Nations in these matters in regard to one another. The necessity of the general welfare has sanctioned certain exceptions to the rule, Statuta suo clauduntur territorio, nec ultra territorium disponunt; and the Civil legislation of one Nation may through the Comity of another Nation have effect given to it beyond the limits of its territory. But there is no such Comity in regard to the Criminal legislation of a Nation, and the Criminal Law of one Nation has only effect given to it within the territory of another Nation by virtue of express Conventions. whilst re amongst § 156. Instances of such Conventions are found in Exceptional posithe Capitulations between the Christian Powers of tion of EuEurope and the Ottoman Porte; whereby magis- ropeans trates nominated by various Christian Powers are sident respectively empowered to administer the Law of their own Nation amongst its subjects, who may be resident within the Ottoman territory. Treaties to a similar effect have been concluded by the Emperor of China with Great Britain 15, (22 July, 1843,) with the United States of North America 16, (3 July, 1844,) with France", (24 Oct. 1844,) and with Russia 18, (13 June, 1858,) and by the Emperor of Japan with 15 Martens, N. R. Gén. V. p. 434. 16 Id. VII. p. 134. 17 Id. VII. p. 443. II. p. 128. Great Britain 19, (26 August, 1858,) and with France 20, (9 Oct. 1858.) Such treaties however are in the highest degree exceptional. But the Law of European Nations itself has always been exceptional in its application to Mahommedan and other NonChristian Nations. Amongst Christian States there are no such fundamental differences in their respective standards of Morality, as to render the Criminal Law of one State totally inapplicable to the subjects of another State; but amongst the Mahommedan and Buddhist Nations there is so essential a diversity in the sanctions, which religion and morality attach to human conduct, as contrasted with those which prevail throughout Christendom, that from the oldest time an immiscible character between Europeans and Orientals has been maintained. Europeans are not admitted into the general body and mass of the society of Asiatic Nations; they continue strangers and sojourners in the land, if they reside amongst them; they form de facto an extra-territorial community, which does not acquire a National character by permanent residence amongst them. In former times when it was the custom of the Christian Powers of Europe to establish Factories in the cities of the Levant, Europeans permanently trading under the shelter and protection of those establishments were held to take the National character of the Association, under which they lived and carried on their commerce. The modern system of exercising treatyjurisdiction leads to the presumption, that the subjects of the Powers which are parties to those treaties, being exempt from the territorial Sovereignty of the 19 Martens, N. R. Gén. XVI. pt. II. p. 430. 20 Ibid. p. 439. 21 The Indian Chief, 5 Robinson's Rep., p. 29. State wherein they permanently reside, will retain, notwithstanding such residence, the National character which attaches to them by their origin. Actions of $157. In Great Britain, in the United States of Personal North America, in the Germanic States, in Holland, Foreigners. foreigners equally with natives are allowed to bring personal actions against foreigners before the tribunals of the country, where they may happen to reside. They cannot bring real or possessory actions, as those are within the exclusive competency of the Courts of the loci rei sitæ. But inasmuch as by the Law of Nations the jurisdiction of a Nation extends over all persons and property within its territory, with the exception of the persons and property of Sovereign Princes and their Representatives, it would seem clear upon general principles, that it is a matter of civil policy to decide, in what manner that jurisdiction should be exercised as between foreigners. In some countries, such as Spain and Portugal, there have been special tribunals constituted under treatyengagements and charged with the jurisdiction over questions in which foreigners are concerned. The Judges of these tribunals are termed Judges-Conservators. In Portugal there was a remarkable privilege enjoyed by British subjects. The Treaty of 1654 concluded between the Republic of England and the Kingdom of Portugal provided for the appointment of a Judge-Conservator of the British Nation, whose province it was to decide all actions between British Subjects not having a Portuguese Domicil by the Law of Nations, and all actions between British and Portuguese subjects. There was an analogous Treaty of a later date between France and Portugal in regard to French Subjects. But in case of a suit of a French Subject against a British Subject, the privilege granted to the British Nation being the most ancient, the Judge-Conservator of the British Nation was held to be the Competent Judge. 22 The institution of a special judge to administer justice between resident foreigners not domiciled in Rome, and between resident foreigners and Roman Citizens, was a peculiar feature of the early Roman Jurisprudence. The functions of the Prætor Peregrinus are described as being those of a Judge qui inter cives et peregrinos jus dicebat, and the rules of law which he administered were classed by the Roman Jurists under the head of Jus Gentium, or the law which Natural Reason teaches all mankind, and which is observed equally by all Nations, and under which all kinds of personal contracts are comprised.23 France occupies a somewhat exceptional position as contrasted with the States above mentioned. Two foreigners who have entered into a contract in a foreign country are not allowed to sue each other upon the contract before a French Tribunal, unless one or other of the foreigners has acquired a French domicil before the contract was entered into. The same rule prevails in Belgium and in the Kingdom of the Two Sicilies, where the Code Napoleon has been introduced. The principle of jurisprudence, upon which this practice is based, is comprised in the maxim, Actor sequitur forum Rei, according to which every defendant is entitled to be sued before his natural judges. The Code Napoleon interprets this maxim in such a case as referring to the 24 22 Gazette des Tribunaux of 16 and 17 Oct. 1843, cited by Felix, Traité du Droit International, T. I. § 148. 23 Ex hoc jure gentium et omnes prene contractus intro ducti sunt, ut emptio, venditio, locatio, conductio, societas, depositum, mutuum, et alii innumerabiles. Just. Inst. L. I. Tit. II. § 2. 24 Code de Commerce, Art. 631. Tribunals of the domicil of the Defendant. Vattel 25 applies this maxim in a different manner; he holds that, "disputes that may arise between foreigners or between a foreigner and a citizen are to be determined by the Judge of the place, and according to the laws of the place. And as the dispute properly arises from the refusal of the defendant, who maintains that he is not bound to perform what is required of him, it follows from the same principle, that every defendant ought to be prosecuted before his own Judge, who alone has a right to condemn him and compel him to the performance. The Swiss have wisely made this rule one of the articles of their alliance, in order to prevent the quarrels that might arise from the abuses that were formerly too frequent in relation to this subject. The defendant's Judge is the judge of the place where the defendant has his domicil, or the Judge of the place where the defendant happens to be when any sudden difficulty arises, provided it does not relate to an estate in land, or to a right annexed to such an estate. In this latter case as property of that kind is to be held according to the laws of the country where it is situated, and as the right of granting possession belongs to the ruler of that country, differences relating to such property cannot be decided anywhere except in the State on which it depends." M. Fœlix, in commenting on the practice of the French Tribunals, considers that the refusal of the French Tribunals to take cognisance of personal actions, in which both the Plaintiff and Defendant are foreigners temporarily resident in France, is a violation of the Law of Nations as received in Europe, and exposes French Subjects to a reciprocal disability before the tribunals of another country, wherein they may be 25 Droit des Gens, L. II. § 103. |