The rights of individuals have some times been so much affected by the conduct of nations towards each other, that their own nation has been induced to make war against the nation aggressing. This has twice occurred in our inter course with America: one war was caused by our restrictions on the commerce of America by the orders in council ; another by our searching American merchant ves sels for British seamen. On the subject of the present unsatisfactory state of the question as to this right of search, Mr. Reddie, in his Maritime International Law' (ii. pp. 43-44), says, "Unfortunately this claim of right was left undecided either way even by the hastily concluded treaty of Ghent in 1814, which terminated the war between the parent state and what were originally her colonies. And as the divergence in the personal appear ance, language, habits, and manners of the inhabitants of the two countries was not likely, for generations, to be such as to facilitate the discrimination of the sub jects of the two states, it is to he regretted the question was not subsequently settled by the negotiations of 1818 upon the equitable footing of regular authentic lists or registers of British and American seamen being made up and kept, and of the nationality of the seamen being there by determined." The Third division of international law is that which most properly comes under the head " Conflict of Laws," viz. the prin ciples that should regulate the rights and obligations of private parties when they are affected by the separate internal codes of distinct nations. This has some points in common with the preceding depart ment of the subject. It involves ques tions with individuals, and not, at least in the first instance, questions with states and the adjustment of each question de pends on the view taken by the law of the country to which the individual or his property is amenable. But it has this distinctive feature, that the circumstances under which disputes may arise are not in the conduct of one nation towards ano ther, but in differences between the inter nal laws of the countries, which internal laws disagree, not because the one nation has a dispute with the other, but in the general case because its legislators have taken its internal situation solely into con sideration, and have overlooked the exist ence of other nations. There can be no part of the world where this species international law can be so well illustrated as in the United States—a collection of communities, each having an internal system of administration, but each acting on principles of harmony and alliance with the other states of the Union. It is thus natural that America should have produced the best work on the subject, in Professor Story's Commentaries on the Conflict of Laws Foreign and Do mestic, in regard to Contracts, Rights, and Remedies ; and especially in regard to Marriages, Divorces, Wills, Succes sions, and Judgments,' of which two edi tions are now known and esteemed in this country. The leading rule of inter national law in this department is, that each civilised nation is to give efficacy to the laws of another country, unless its own laws or the general principles of justice are thereby invaded. We have the broadest and most distinct illustrations of this rale in the criminal law. The pro gress of opinion has lately been in favour of each nation rendering back fugitive criminals, to be dealt with according to the law of the country where they have committed any private crime against person or property. In conformity with this principle, treaties were lately made with France and the United States of America, for enforcing which, in this country, two acts of parliament were passed (6 & 7 Vict. c. 75 and c. 76), by which a secretary of state, on the requisi tion of the ambassador or other repre sentative of France or the United States, might issue a warrant to magistrates to seize a person accused of a crime, a magistrate being enjoined to put it in force on his being satisfied that the charge is of such a nature as would au thorise him to commit a person charged with perpetrating it in his own jurisdic tion. [CONVENTION TREATIES.] But it has been a rule in many countries, and particularly in our own, that no aid is to be given for the enforcement of the poli tical laws of foreign states. As in other branches of international law, our en lightened principles on the subject of slavery have here been the cause of per plexing difficulties. With slave-holding countries slavery comes to be a question of property, but with us it can only be a question of government ; and we cannot view any rules regarding property in slaves as laws relating to private rights, an infringement of which, when held to be criminal in the slave-holding country, must be so also here. Accordingly, in the celebrated case of the Creole, in November, 1841, when certain American slaves escaped and found protection in a British settlement, it was found that we could not send them back to their owners as robbers who had with violence stolen their own persons from the custody of their proprietors.
As on the one hand the criminal law is that to which this department of inter national law most broadly and distinctly applies, on the other hand the position of real or landed property is that to which it has generally the least reference. The reasons of this distinction are very obvi ous: his own personal conduct is that object of the law which a man most com pletely carries about from one country to another; his connection with landed pro perty is the relation in which a tribunal out of the country in which the property is, can have the least chance of adjudicat ing. Between these extremes there are
many questions regarding persons in their relations to each other, and regarding contracts as to moveable or personal pro perty. It came thus to be a general prin ciple, that rights connected with landed property must always be settled by the law of the place where the land lies, while questions regarding other property might be subjected to other criterions of jurisdiction. Perhaps historical cimum stances in the early history of the Euro pean nations favoured this division. The various tribes which occupied the territory of the Roman empire appear to have car ried with them their own peculiar laws and customs. Savigny quotes a letter from Bishop Agobardus, in which he says it often happens that five men, each under a different law, may be found walking or sitting together—a state of society at this day exemplified in some oriental nations. Among all these dis tinct tribes the feudal system arose as the general and uniform territorial law. Through a series of circumstances which need not be here narrated, the civil or Roman law became the ruling principle as to persons in their relation to each other when that relation was not of a feudal character, and as to claims re garding moveable goods. The common law of England has perhaps had the least affinity with the other European codes. But it has fortunately happened that those departments of the law with which international questions are chiefly con cerned,—the consistorial and the admi ralty been considered as the legitimate offspring of the civil law, and have adopted in a great measure its prin ciples as they have been in practice throughout Europe. The mercantile law in general of England has accommodated itself to the custom of merchants; and this custom has in a great measure arisen out of the adaptation to modern com merce of the principles of the civil law. The portion of the commercial code of England which is least in harmony with that of other countries is perhaps the bankruptcy law, which, being statutory, has not so pliantly adapted itself to the exigencies of foreign commerce as the consuetudinary portions of the cial law have done. Thus, under the old sequestration or bankruptcy statute of Scotland, which was supposed to give the trustee or assignee full power for obtain ing possession of the bankrupt's property in all parts of the world, it was found that he had no right of action for a debt due to the bankrupt in England—the right of the trustee being that of an as signee merely, and a right to a debt being chose in action, and therefore not ca pable of being assigned by the law of England. See Jeffrey v. M'Taggart, 6 M. & S. (K. B.), 126. The law of bank ruptcy appears to be one of the most diffi cult of adjustment to international prin ciples. There are clauses in the bank ruptcy and insolvency acts of England by which, through registration of the vesting order, the assignee becomes in vested with all real or landed property in any part of the British dominions where a conveyance of such property requires to be recorded. (See 1 & 2 Wm. IV. c. 56, § 27, and 1 8c 2 Viet. c. 110, § 46.) It could not have been the intention of this provision to give an English assignee privileges which a trustee of a bankrupt estate does not hold in Scotland ; but while the latter requires to make up a feudal title before he can be the recorded pro prietor of real property, it was found by the Court of Session in the strict interpre tation of the English provision that no such preliminary was necessary, and that the registration of the vesting order was sufficient. (Rattray v. White, 8th March, 1842, 4 D., 880.) The conflicts of laws between England and Scotland are of course in this part of the world the most important and inte resting. The consuetudinary or unsta tutory law of England has perhaps fewer principles in common with that of Scot land than the latter has with the law of any other country in Europe ; and this divergency has been the cause of many difficult questions. In these the law of marriage and that of succession have been particularly fertile. In the former the difference between the institutions of the two countries, when subjected to the prin ciples of international law, has been pro ductive of very remarkable effects. In England ;bore are certain acts which are vecessary ingredients, by the statute law, of a valid marriage. In Scotland the consent of parties to hold each other as man and wife, when sufficiently attested, is, according to the doctrines of the civilians, sufficient. But in England it is a principle of international law that a marriage valid in the place where it is contracted is valid there ; the conse quence is, that the las principle of mar riage by simple attested consent would have probably fallen into desuetude and oblivion in Scotland, were it not kept up by English parties, who thus evade the restrictions of their own law. On the subject of succession, a series of decisions in both countries has settled two very im portant principles-that in the case of landed property it follows the fez rei sitce, or the law of the place where the property is ; while in moveable or per sonal property it follows the ler domicilii, or law of the domicile in which the per son leaving it died.