land, but with respect to which these conditions had not been fulfilled: England has also, by the express provisions of a statute (f), rendered it unlawful for any of her subjects, "wheresoever residing," to be the possessor or purchaser of a slave even in any State. Upon this subject also an indelible personal incapacity is by this law impressed upon the Englishman, and though the penalty of infringing it cannot be inflicted upon him while he is resident in a State which permits slavery, it will reach him whenever he comes within the jurisdiction of England.

XXV. But where these Exceptional Restrictions do not apply, a State can then (to borrow the phrase of Vattel) perform an office for another nation without neglecting its duty towards itself: or rather Comity then assumes the character of a Jus Gentium Privatum; the general principle of which cannot be more happily conveyed than in the language already referred to (g) of Lord Stowell's celebrated judgment in Dalrymple v. Dalrymple, where, deciding upon the validity of a Scotch marriage in an English Court, he said, “Being "entertained in an English Court it must be adjudicated according to the principle of English law applicable to such a "case. But the only principle applicable to such a case by the "law of England, is, that the validity of the marriage rights "must be tried by reference to the law of the country where, "if they exist at all, they had their origin.

(f) 6 & 7 Vic. c. xcviii. s. 1.

(g) Townsend v. Jamison, 9 Howard's Amer. Rep. p. 407; 18 Curtis's Amer. Rep. p. 202. The following passages, from this judgment of the Supreme Court of the United States of North America, are worthy of all consideration :

"It has become, as we have always said, a fixed rule of the jus gentium privatum, unalterable, in our opinion, either in England or in the States of the United States, except by legislative enactment,— when there is no positive rule affirming, denying, or restraining the operation of Foreign Laws, courts establish a Comity for such as are not repugnant to the policy or in conflict with the laws of the State from which they derive their organization."

Having furnished this principle, the law of England "withdraws altogether, and leaves the legal question to the "exclusive judgment of the law of Scotland."

The principal sources of Private International Law are the following:

I. Writers on General or Public International Law-they have rarely or very incidently touched upon Comity or Private International Law: Grotius, pp. 416-593, 595, 675-697.

Puffendorfius, De Jure N. et G. 1. ii. c. iii. p. 150, fol. ed.

Bynkershoek, De Foro Legatorum, c. 2.

Günther, Europäisches Völkerrecht, 30-31.

Zouch, De Jure Feciali sive de judicio inter gentes, iii.

Vattel, 1. ii. c. viii.

Martens, Dr. des Gens, 1. iii. c. iii. ss. 93, 98, 99, 100.
Heffter, s. 35.

II. Civilians or commentators on the Roman Law-they have occasionally dealt with this question:

Bartolus, in Codicem, 1. i. c. de Summâ Trinitate, n. 13-51. This is the fountain of Private International Jurisprudence. Without a careful study of this Commentary, nobody can be thoroughly versed in the history of the progress of the principles of Private International Law. Who would have expected such a treatise in a Gloss on the words "cunctos populos" in a chapter de Summâ Trinitate?

J. Voet, in his Commentary on the Pandects, 1. i. t. 4, De Constitut. Princ., at part ii. de Statutis, ss. 1-22.

Huberus, Prælect. ad Pandectas, treats De Conflictu Legum in an Appendix to lib. i. t. iii., De Legibus, ss. 1—15.

Mühlenbruch, Doctrina Pandectarum, 1. i. c. iv., de ratione quæ inter plures leges vel concurrentes vel secum dissidentes intercedit, p. 148159 (A.D. 1830.)

Puchta, Instit. I. 360, explains Jus Gentium.

Savigny, System des R. Rechts, I. s. 22 (112—119) explains Jus Gentium, showing how it affected the jus civile. Here Jus Gentium is in fact Comity. As to vol. iii. vide post.

III. Writers on Municipal Law treating incidently of Private International Law:

B. Argentræi, Comment. ad potius Britonum leges. The 218th Article of the Customs of Bretagne ordains that no one shall leave away from

his natural heirs more than one-third of his immoveable property. Thereupon arose the question whether immoveables situated out of Bretagne ought to be included in this third. D'Argentré, in the sixth Gloss upon the 218th Article enters fully into the question of the collision of laws, pp. 601-620. The work was published after his death A.D. 1608.

C. Rodenburg, De Jure Conjugum. The question of the Collision of Laws is treated of at length in his Præliminaria, pp. 13—178 (A.D. 1653). D'Aguesseau, xiii. 639, Memoire sur l'execution des Contrats passés et jugemens rendus en pay étranger, ib. 638; Memoire sur l'execution des jugemens entre les Souverains.

Masse, Le Droit Commercial dans ses Rapports avec le Droit des Gens et le Droit Civil, t. ii. c. 1. Des Relations Internationales Individuelles ou Du Droit International Privé (A.D. 1844).

Merlin, Repertoire de Jurisprudence v. "Etranger" and "Souveraineté."

Demolombe, Cours de Code Civil, tome i. tit. i. c. iii. Quelle est la condition juridique des étrangers en France, and tit. 3 Du Domicile, 1845, A.D.

Demangeat, Histoire de la condition civile des Etrangers en France, 1844, A.D.

Legat, Code des étrangers ou Traité de la legislation Française concernant les Etrangers, 1832, a.d.

Thöl, Das Handelsrecht, I., Einleitung, 1847, A.D.

Puttlingen, Die gesetsliche Behandlung der Ausländer in Esterreich. Kent's Comment. on American Law, I. 187.

Bell's Commentaries on the Laws of Scotland in relation to Mercantile and Maritime Law, vol. i. Introduction: vol. ii. p. 1294. International Law relating to Bankruptcy Ed. Shaw, 1858, a.d.

Cole on Domicil of Englishmen in France, 1857, a.D.

IV. Writers on Private International Law, per se.

P. Voet, De Statutis eorumque concursu, ss. 4, 9, 10, 11, upon the Collision of Statutes (1661, A.D.)

J. N. Hertius, De Collisione Legum (1688, A.D.). Comment. et opuscul, vol. i. pp. 118-154.

L. Boullenois, Traité de la personalité et de la realité des Loix &c. (1766, A D.). It is a French translation with considerable additions of Rodenburg's work.-D. Meier, De Conflictu Legum (1810, a.d.).

G. V. Struve, über das positive Rechtsgesetz in seiner Beziehung auf räumliche Verhältnisse (1834, A.D.)

W.Shäffner, Entwickelung des Internationalen Privatrechts (1841,A.D.). Pütter, Das praktische Europäische Fremdensecht, 1845, A.D.

Wächter wrote some excellent numbers "über die collision der

Privatrechtsgesetze," in a German publication entitled "Archiv für die Civilistische Praxis," 24th and 25th volumes (1841-2, a.d.).

Rocco, Dell 'uso e autorità delle leggi del Regno delle due Sicilie considerate nelle Relazioni con le persone e col territorio degli Stranieri (1837, A D.).

Fælix, Du Droit International Privé du Conflit des Lois de diférentes Nations en Matiére de Droit Privé, last edition by M. Demargeat in 1856.

Henry, Judgment in Odwin v. Forbes, 1823, A.D.

Story, Commentary on the Conflict of Laws, last edit. 1857.

Burge, Commentaries on Colonial and Foreign Laws generally, and in their conflict with each other and the Law of England, 1838, a.d. R. Phillimore, the Law of Domicil, 1847, a.d.

Westlake, Private International Law, 1858, A.D.

Savigny, System des heutigen Römischen Rechts Achtes Band, A.D. 1849. This eighth volume of the author's great work is entirely occupied with Private International Law.

V. The decisions of Courts of Justice of Independent States upon questions involving a conflict of Laws.

VI. Lex Mercatoria of Independent States.

VII. Civil Codes of States into which express provisions on the subject of P. Int. Law have been incorporated.

CHAPTER II.

PLAN OF THE WORK.

XXVI. IN the former Chapter it has been stated that the Judge who has to decide as to a particular Legal Relation which comes into contact with the laws of divers States, ought, as a general rule, to arrive at his decision by applying to that particular Legal Relation that positive law to which it is, according to its true nature, properly subject. All positive law is derived from a State (a), that is, from a particular defined territory occupied by a particular people, governed by their own Ruler.

The enquiry, therefore, as to what positive law a particular Legal Relation is, according to its own nature, subject, necessarily involves the further enquiry as to the territory from which the positive law is derived. This necessarily leads to a further enquiry as to what are the ties which bind an individual (persona), and all that appertains to his personal rights (Status, l'etat du droit, Rechtszustand), to a particular territory so as to subject him to its laws.

XXVII. We may consider the individual (persona) in himself, with his personal rights, abstractedly; that is, without reference to other considerations than the actual place in which he corporeally exists or resides; and then these ties appear to be of a twofold character, arising out of

1. Origin;

2. Domicil.

It is by reference to the positive law of his Origin or his Domicil, that the personal state or legal condition of the individual-his status-his capacity of actually acquiring or

(a) Vol. i. c. i.