CHAPTER I. OF THE MODE IN WHICH PRIVATE INTERNATIONAL LAW HAS BEEN CULTIVATED. THE term "international," now current in France and Germany, as well as England, is correctly remarked by M. Ortolan, Professeur à la Faculté de Droit de Paris, to be of British origin. And there can be no doubt it was, introduced by Mr Bentham, without being aware that the same view of Jus inter Gentes, or of Jus Gentium inter Civitates, had been previously taken by Chancellor D'Aguesseau; and, by the latter, apparently also without being aware a similar view had been previously taken, during the seventeenth century, by Dr Richard Zouch (Zoucheius) of Oxford, afterwards Judge of the High Court of Admiralty of England. To the adoption of this new "term" Mr Bentham appears to have been led, in the exercise of that acute discrimination of ideas and words for which the science of law is so much indebted to him, in order to put an end to the confusion. which had arisen and long prevailed from the same term, the Law of Nations, or Jus Gentium, having been applied by different authors at different times, and by the same authors in different places, to denote branches or departments of law very different from each other. And while it is to be regretted Mr. Bentham did not push his analysis and discriminative phraseology farther and deeper into the details and component parts of international law, the introduction of this new term has certainly been of great use, in marking distinctly that department of law which is composed of, and unfolds, the reciprocal rights and obligations of nations or independent states towards each other in their mutual intercourse. It has put an end to the risk of its being confounded with the Jus Gentium of the Romans, which seems to have designated that branch of the internal law of a state which is not peculiar to it, like the Jus Civile, but which it enforces and observes in common with other civilised nations. And it clearly distinguishes the external juridical relations of nations in their intercourse with each other, from those branches of the internal jurisprudence of independent states, such as the law of maritime commerce, of which the rules or component parts are similar or analogous, and common to a number of civilised nations; and which, in modern times, had come to be frequently designated and called by the vague appellation of Jus Gentium, although they did not involve iuternational rights or questions between nation and nation, collectively or individually. Besides the significations just mentioned-the one definite and precise, the other loose and indefinite-there has also come to be in practice a third signification of the Jus Gentium, as involving those laws, or questions, or doctrines, which arise from a conflictus legum, or collision of laws. But it does not appear that this department of law can correctly be denominated international, unless it involves the reciprocal rights and obligations of different nations towards each other, either in their collective or individual capacities and intercourse; and it rather appears the various writers who have treated separately of the conflict of laws generally, as a whole, such as Rodenburg, Voet, Hertius, and Boullenois, have not traced its ultimate principles to the international juridical relations of independent states. A conflict or collision of laws, juridically affecting the interests of individuals, does not necessarily imply that these individuals belong to different communities or states, foreign to each other. It may arise among individuals of the same nation or state, if they have changed their place of residence from one country to another, or enter into contracts or mutual transactions, or execute uni-lateral deeds in one country, which are to be carried into effect in another, where a different law prevails. Without distinguishing that the conflictus legum may have either of these two sources, and observing the difficulty of solving such questions agreeably to the principles of international law solely, in consistency with the fundamental principle of that law the independent sovereignty of each nation -the older writers on the conflictus legum, such as those before alluded to, have unhappily sought to find principles for the solution of such questions in what they have termed the personalité, the réalité, and the mixed nature of laws in these respects. On the other hand, the later writers in this department of jurisprudence seem to have erred, inasmuch as they give the appellation of international law to a class of cases and rules which do not presuppose any question, much less any conflict or collision, between the laws of different nations, but may and do occur in one and the same nation. In the latter case, the laws or judicial determinations arising out of the conflictus legum are a part, not of inter |