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.
Even within the geographical limits just mentioned there are certain differences on points of social order, especially on marriage or divorce, which have hitherto prevented a complete agreement being attained in the rules of private international law. But no attempt has ever been made to establish any system of the kind as between Christian communities and Mahommedan or other polygamous ones, or between countries enjoying a Christian standard of civilization and those, of which China may be taken as an example, which, whether polygamous or not, do not inspire the necessary confidence in their judicatures. In Turkey and other Eastern countries (in which designation Japan is no longer included for purposes of law) Christians are placed by treaty under the jurisdiction in civil matters of their respective consuls. When in the courts of Christian countries Eastern persons or circumstances connected with Eastern laws have to be dealt with, the peculiar institutions of those countries are not enforced; and while in other respects the judges may be assisted by some of the rules of private international law, especially such as have for their object to carry into effect the reasonable intentions of parties, yet those rules are not applied as parts of an authoritative system.
Rules for the selection of the territorial law to be applied in the different classes of cases, or for the recognition of foreign legal proceedings, have sometimes been made the subject of international treaties, and have often been enacted by territorial legislatures. England possesses a few such enactments, as in the Bills of Exchange Act 1882, and many other countries possess them to a much larger extent in their codes. Where such enactments exist, or where treaty stipulations have been entered into, and the territorial law makes such stipulations binding on the judges, the courts of law must obey and apply them as they must obey and apply any other part of the law of the land. If, as in England, judicial precedents are held to be binding, so that the law of the land consists in part of judge-made law, a similar result is produced; an English court must follow English precedents on the application of foreign law or the refusal to apply it, to the same extent to which it would be bound to follow them on any other point. So far as our matter remains open for a judge, he has, to assist him towards a just decision, the treaties, written laws and judicial precedents of other countries as examples, and a vast literature which has grown up in all Christian countries. That this apparatus is far from having furnished concordant results is due, not only to the divergences on points of social order referred to, but also to the different bases of the legal systems with which the respective governments and writers have been familiar. The legal systems of different countries have been founded on Roman law, feudal law, English common law and still other bases. The arguments of lawyers are affected by the prepossessions thence arising, and they have consequently failed to arrive by their unaided efforts at so much agreement on the rules of private international law as would have been compatible with the conditions and modes of life and action surrounding them. But the general acceptance of a complete body of rules on private international law is a goal which for other countries than England is well within sight by the road of international treaties concluded under the joint direction of professional and non-professional minds.
The most remarkable steps taken in or towards the conclusion of such treaties are those initiated, to its high credit, by the
