country, or when a Public Minister is a subject or citizen of the country to which he is accredited, provided that State have not renounced its jurisdiction over him.

3°. In cases of alleged illegal detention, on board a private vessel in foreign territorial waters, of any member of its crew or passenger, not belonging to the nationality of the vessel, and claimed by the Local Authorities or by the respective Consular Officer, through the Local Authorities of the State in whose territorial waters the vessel is at the time of the alleged illegal detention.

4°. In cases of Extradition of Criminals or Deserters (§44).

5°. In those cases, independent of the nationality of the culprit, in which the local jurisdiction prevails over the public vessel of a Foreign Power within the territorial waters of the State.

6°. Temporary military occupation of a country. Concurrent Jurisdiction forms part of the international attributes and functions of Consular Officers (Chapter XV).

International
Usage wilh

of Laws.

CHAPTER X.

PRIVATE INTERNATIONAL LAW.

I.-General Observations.

§ 50. Private International Law (jus gentium regard to conflict privatum) is that part of the General International Law which regulates, not the mutual relations of the States, but the private relations which occasionally occur between individual members of one State and the laws of another State.

Through the free intercourse which exists between Nations, it may happen that an individual has, at one and the same time, a legal claim to protection under the jurisdiction of different States, viz.: on the ground of his nationality rights, from his own State, and on the ground of business transactions or acquired rights, from another State. He may possess real property in one foreign State, where he is a non-resident land-owner (sujet forain) and has contracts or testaments to be executed by him in another State, where he resides, for the sake of business, as a temporary resident (sujet passager), while his domicile is either in his own State, where he enjoys the Right of Domicile as well as his Political Nationality, or in a third State, where he has only the Nationality of Domicile (§ 40). Now, as an individual, thus situated, may often have recourse to the law-courts of one State to execute contracts or to secure or attest rights, entered into or acquired under the differing legislation of another State, his case must give occasion for conflict between his own rights, as the laws under which some of his rights are acquired and the laws which must secure the effect,

are not always the same and may sometimes be contradictory. This is what is termed Conflict of Laws, a natural consequence of the independent right of Legislation and Jurisdiction of Sovereign States and of the differences attending the provisions of law passed by the State to which the claimant belongs and by the State in which his properties are situated or where his rights are acquired by contract.

It is the interest of every State to promote internal prosperity, by facilitating transactions in real estate (in order to raise the value of its lands), as well as to facilitate commercial and social intercourse with other Nations. But as conflicts of law between States are decidedly opposed to such interests, it becomes more and more the policy of enlightened civilized States to endeavour, by acts passed by their respective legislature or by treaties with other States, or tacitly, by the decisions of their judicial or administrative Authorities, to harmonize the differences existing between the laws of States with regard to the rights of aliens, as far as their respective constitutional laws will admit of it. Thus, while, as a natural consequence of independence, the Jurisdiction of a Sovereign State excludes all foreign legislation from its territory, yet, through policy or justice and for the reasons just mentioned, several States have tacitly or expressedly consented to recognize and adopt, by legislation or jurisprudence, certain common rules or principles of jurisdiction with regard to foreigners within their jurisdiction and the laws of the respective States which govern the personal status of these foreigners, their properties, their actions and transactions. This gave birth to a distinct branch of the Law of Nations, called Private International Law, which has for its object the reconciliation

Definition of Pri

vate International· Law.

of the interests inherent in the Sovereignty of each State, in matters of legislation, with the respect due to the laws of other States. This reconciliation of conflicting interests is to be brought about by an adjustment of the differences which exist between the laws which regulate the interests of individual subjects of one State and the legislation of another, while general Public International Law has for its object the regulation of relations existing between States and States.

*

The term by which this branch of International Law is designated, has often met with the criticism that it does not convey the proper idea and definition of this branch of legal studies as a science. Yet the term Private International Law is nevertheless the one which is most generally adopted. The reason thereof we find adequately stated by Mr. Woolsey in the following remarks. "It is the province of Private International Law to decide which of two conflicting laws of different territories is to be applied in the decision of cases, and, for this reason, this branch is sometimes called the Conflict of Laws. It is called Private, because it is

*WHEATON. Elem. Intern. Law. Part II. § 78, et seq. CALVO. Droit Int. Vol. I. § 236, et seq. PHILLIMORE. Com. on Int. Law. Vol. IV. § 2. WESTLAKE. Private Int. Law. Introduction. ASSER. Droit Int. et Droit Uniform. Revue de Droit Int. et de Legislation comparée. 1880. p. 1-22. "In that region which is sometimes called Private International Law, and sometimes the Conflict of Laws, due as it is to the intercourse with each other of the citizens of different States, whether brought about through travel, commerce, continued residence, or even colonization, there has been increasingly felt the same pressing need to discover principles of utility and of justice, to which the citizens of a variety of States and the tribunals of all States will pay difference. The discovery of such principles to be successful, must rest upon a scientific investigation of the grounds, logical, social and political upon which all laws rest. Apart from such an investigation, the attempt, in any given country, to reconcile what is called the Conflict of Laws will always be exposed to the danger of favouring the interests or the prejudices of the citizens of the State where the law is applied. Thereby springs up, as has sprung up, an indefinite diversity in the private International Law of each State in the place of an identity of principle and practice, reflecting the identity of their moral claims." PROF. SHELDON AMOS. The Science of Law, Edit. HENRY S. KING & Co. 1874, p. 12,

concerned with the private rights and relations of individuals. It differs from Territorial or Municipal Law, in that it may allow the law of another territory to be the rule of judgment in preference to the law of that territory in which the case is tried. It is International, because, with a certain degree of harmony, Christian States have come to adopt the same principles in judicial decisions, where different Municipal Laws clash. It is called Law, just as Public International Law is called, not as imposed by a superior, but as a rule of action freely adopted by the Sovereign Power of a country, either in consideration of its being so adopted by other countries, or of its essential justice. And this adoption may have taken place through express law, giving direction to Courts or through power lodged in the Courts themselves.' 11 *

From these remarks regarding the nature of this Law, the following definition may be derived. Private International Law is the term under which are collectively comprehended those rules and principles through which the Conflict of Laws, arising out of certain juridical actions and transactions of aliens and non-domiciled subjects, is decided, and which, in general, solve the question as to which law is to govern those cases of actions or transactions which come under the operation of more than one code of Municipal Legislation or Jurisdiction.

Private Interna

Comit.

There is a difference between Private Interna-Difference between tional Law and what is termed Comity, though tional Law and both originate in the good will, convenience or policy of Nations, deeming it advisable to grant to each other privileges which are not reciprocally due between States and thus not stricti juris. * WOOLSEY, Int. Law. Edit. 1879. § 73.