mfMMfM K (Siavmll IGaai #rl)nnl Eibrarg wmmiwmiRsiiT J«N ^5 1907 MW UBKARY. ifilStiSH .SSyESSny LIBRARY 3 1924 060 379 777 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924060379777 INTERNATIONAL CIVIL AND COMMERCIAL LAW 'jh^y^- INTERNATIONAL CIVIL AND COMMERCIAL LAW AS FOUNDED UPON THEORY. LEGISLATION. MB PRACTICE BY F. Jd£ILI PROFESSOR OF INTERNATIONAL PRIVATE LAW IN THE UNIVERSITY OF ZURICH DELEGATE OF SWITZERLAND TO THE HAGUE INTERNATIONAL CONFERENCES TRANSLATED AND SUPPLEMENTED WITH ADDITIONS OF AMERICAN AND ENGLISH LA W BY ARTHUR K. KUHN, A.M. MEMBER OF THE NEW YORK BAR NefD go* THE MACMILLAN COMPANY LONDON : MACMILLAN & CO., Ltd. 19OS All rights reserved Copyright. By the MACMILLAN COMPANY. Set up and electrotyped. Published May, 1903. Norivood Press J, S, Cusbing & Co. — SenwicA & Smith Co. Nortuoodj Mass.y U.S.A. TRANSLATOR'S PREFACE Since the translation of the works of Savigny and von Bar upon the Conflict of Laws or International Private Law (^^Inter- nationales Privatreckt"), readers of the English language have had no opportunity to acquaint themselves with the theory and practice upon the subject which prevails outside their own imme- diate jurisdictions, — more especially on the Continent of Europe. Recently a number of events have transpired to introduce changes of far-reaching consequence in the doctrines recognized for the solution of legal conflict. Among the most important of these events may be cited the enactment of the German Civil Code with its Introductory Act, which came into force on January i, 1900, the Japanese statute of 1898 upon the application of the laws in general, the Swiss statute of 1891 regulating the conflict of laws in detail, and, finally, most important of all, the International Conferences of The Hague of 1893, 1894, 1900, and 1904, in which most of the countries of Europe participated. Although neither the United States nor England sent dele- gates to these conferences, considerable attention in both coun- tries has been drawn to the treaties already ratified, as well as to those which are in draft. In England a body of jurists have appealed to their government to join iiT the deliberations of the conventions. In the United States the American Bar Association has evinced its interest by inviting the author to address the Congress of Law at the Louisiana Purchase Exposition upon the four conferences already held. It would seem doubtful whether either of the jurisdictions is prepared to join the treaty unions at this time, but it is not at all unUkely that at least delegates will be sent from both countries to future conferences. In view of the new impetus which has thus been given to the study of International Private Law throughout the world, and the changes which have lately been made in the positive law of many VI TRANSLATOR'S PREFACE countries upon that subject, a new work dealing with this topic and outlining these movements in their proper perspective is timely. That this task should have been undertaken by a jurist of Switzerland is not surprising, since there, on account of its federal system, its limited territory, and central position among the nations of Europe, the doctrine of the conflict of laws has reached a high state of development. The Swiss statute of 1891 indicates this development, and is frequently discussed by the author. As this legislation represents the most detailed system of positive statutory law that has been enacted for the regulation of conflicts in private law, it will no doubt be found full of suggestion and interest to American and EngUsh lawyers. It maybe in point to recall that Continental jurists are inclined to deal with these problems from the philosophical point of view, and to attempt, as far as possible, to work out a logical system. The author has followed this precedent to some extent, but has taken care to note any divergence between theory and practice. In view of the increasing commerce and intercourse between the Old World and the New, and the consequent increase in inter- national litigation, part of which, at least, must be prosecuted in the courts of the Old World, it is believed that the present work will prove serviceable to both the practitioner and student. There is another noticeable difference in the treatment which the Continental jurist gives to the subject of International Private Law from that which our own authors accord to it. With us it is merely a branch of jurisprudence, and serves as a heading for a certain group of questions which occupy the attention of the courts. In Europe it constitutes also a branch of political science, as it deals with certain problems of sovereignty and the relations of the individual to the state. This results partly from the con- ception there so widely accepted, that the bond which unites the individual with his native state remains effective even in his private relations, though he has entered the territory of a foreign state. Many of the topics dealt with in the present work may therefore well occupy the attention of the student of comparative politics. In the supplements of American and EngUsh law appended to the author's paragraphs, I have endeavored to state briefly and without discussion or argument, the law recognized in those jurisdictions, upon the principal points dealt with by the author. TRANSLATOR'S PREFACE VU They are in no sense intended as a full exposition of the law upon the topics treated, but have been added in order to complete the comparative nature of the work. Beyond this my object has been to produce a faithful translation of the author's treatise. The English text follows the German as closely as possible, and such omissions and changes as occur have been made with the consent of the author. Some terms which have been rendered literally may seem at times unfamiliar, but I have refrained from adopting terms peculiarly American or Enghsh where they would tend to import a meaning quite foreign to the original. I have also had in view the advantage accruing, at least in this branch of law, from the use of the same word or its equivalent, in order to express the same idea in all languages. It is with pleasure that I acknowledge my obligations to Mr. George Winfield Scott of Washington, for some valuable sug- gestions. A. K. K. Zurich, November, 1904. CONTENTS PAGE List of Authorities xvii Table of- American and English Cases xxiii INTRODUCTION INTERNATIONAL PRIVATE LAW IN GENERAL § I . General Conception and Classification of International Private Law . i § 2. Private Associations for the Development of International Private Law 9 § 3. The Distinction between International Private Law and Comparative Jurisprudence 10 § 4. The Establishment of a Universal System of Law . . . .11 § 5. The Hague Conferences and Other Attempts at Codifying a System of International Private Law 13 § 6. Review of the Rules of Conflict prevailing in the Various Countries 21 § 7. The General Nature of Legislation upon International Private Law . 31 § 8. Peculiarities of International Private Law in Territories under Con- sular Jurisdiction 35 § 9. International Private Law in Relation to Egypt .... 38 § 10. The Bearing of Theoretical Discussion upon Positive International Private Law . 39 §11. The Basis of Doctrinary Discussion 43 § 12. Interstate and Inte^)rovincial Law 46 PART ONE SUMMARY SKETCH OF THE HISTORICAL DEVELOPMENT OF INTERNATIONAL PRIVATE LAW I. In Ancient Times § 13. The International Conceptions of Ancient Nations, especially the Greeks and Romans 52 § 14. Attitude of the Roman Sources of the Law to the Conflicts of Inter- national Private Law 53 §15. The JUS gentium oi the Romans 55 § 16. The Recuperators 57 ix X CONTENTS II. The Period of the Leges Barbarorum PAGE § 17. Law of Personality or Race Law 5° § 18. The Range of Race Law 59 III. The Feudal Period § 19. Rise of the Feudal System and the Effect of Territoriality . . 61 IV. The Italian Doctrine § 20. Acceptance of the Roman Law .62 § 21 . Bartolus as Leader of the Earliest School of International Private Law 63 § 22. Successors of Bartolus 68 V. The French Doctrine of the Sixteenth Century § 23. Transplanting the Doctrine to France 7° § 24. Argentraeus • • 7' § 25. Carolus Molinasus 74 VI. The Doctrine of Belgium and Holland in the Seventeenth Century § 26. The Adoption of the Theories of Argentraeus 76 § 27. Its Individual Representatives -77 § 28. Ulricus Huber in Particular 78 VII. The Dutch School in Germany § 29. The Statutory Theory in Germany . 80 VIII. The Dutch School in England and America § 30. Attitude of England and the United States of America ... 83 § 31. The Influence of Feudalism in Modern Times ..... 85 IX. The Statutory Problem in Switzerland § 32. A Recapitulation 86 X. Subsequent Influence of Argentr^us in France during the Eighteenth Century § 33. The Present Significance of Reality and Personality ... 86 XI. Doctrines of the Nineteenth Century 1-2. The Old and the New Rules % 34. The Statutory Theory in Germany g8 CONTENTS XI 3. The Modern Spirit PAGE § 35. Various Doctrinary Systems of the New Theory .... 90 § 36. Triumph of the New Doctrine 92 4. The Old Tendencies as displayed in the Doctrines of England and America § 37. Territoriality in Modern Times 93 5. The New Italian School § 38. Founding of the Doctrine of National Law 94 § 39. Influence of the Italian School 95 XII. At the Present Time § 40. Brief Review 96 PART TWO INTERNATIONAL CIVIL LAW General Questions § 41. The Legal Position of Aliens in Modern Times in Respect of Private Law 102 § 42. The Nature and Classification of Rules of Conflict .... 106 § 43. The Principle of Domiciliary Law 109 §44. The Principle of National Law 119 § 45. Neutral Principles 128 § 46. Reference and Re-reference 132 § 47. Outlines of the Categories of Law Applicable in Modern International Jurisprudence 135 § 48. Reasons for the Application of Foreign Private Law . . . 137 § 49. The Task of Science 142 § 50. Interpretation in International Private Law 146 §51. So-called Fraud against the Internal Law 148 § 52. The Distinction between Jurisdiction {forum) and Substantive Law O'^-f) 151 § 53. The Relation of International Private Law to Internal Civil Law . 153 § 54. Subjection to a Foreign System of Civil Law by Agreement of the Parties ; 158 § 55. Form in Relation to International Transactions . . . .161 § 56. Limitation of Actions in Private Law 168 Law of Persons § 57. The Capacity to have Rights and the Capacity to act of Natural Persons in General 173 xii CONTENTS PAGE § 58. The Regulation of the Status in the Laws of the Principal Nations of the World • . ' '^^ § 59. The Regulation of the Status according to American and English Law in Particular . . . . . • • • • . i »4 § 60. The Capacity to act of Minors and Adults .... § 61. The Capacity to act of Persons under Curatory for Prodigality . § 62. The Capacity to act of Insane Persons . . . • • § 63. The Capacity to act of Married Women . . ■ • § 64. Suggestions for Legislation in Regard to the Status of Natural Persons 1 95 §65. Upon Certain Peculiarities of Status and Capacity to have Rights § 66. The Capacity of Juristic Persons § 67. Venia ceiatzs {emancipation') . § 68. Rights in Names §69. The Existence and End of Physical Personality 186 189 190 192 200 202 206 208 209 Law of the Family § 70. Introductory Remarks 213 § 71. Betrothals 214 § 72. Entrance into Marriage 218 § 73. The Treaty upon Marriage elaborated by the Hague Conferences . 226 § 74. The Law of Marital Property 227 § 75. The Law of Marital Property in America and England . . . 232 § 76. Legislative Reflections upon the Law of Marital Property . . 233 § 77. Divorce 234 § 78. The Swiss Law of Conflict in Matters of Divorce .... 239 § 79. The Baufifremont-Bibesco Afiair 243 § 80. The Treaty of the Hague Conferences relating to Divorce . . 245 §81. Parental Authority 247 § 82. Guardianship 250 § 83. A Peculiar System of solving Guardianship Conflicts . . . 254 § 84. The Labors of the Institute with Reference to Guardianship of Alien Minors and Adults 256 § 85. The Treaty of the Hague Conferences relating to Guardianship . 257 § 86. The Duty of Aliment as between Members of the Family . . 257 § 87. Adoption . . 260 § 88. Legitimation of Children born Antenuptially ..... 265 § 89. Claims in Bastardy 268 § 90. Voluntary Recognition of Illegitimates . . . . . .271 § 91. The Labors of the Institute with Reference to Marriage and Divorce 273 Law of Things § 92. Introductory Remarks 274 § 93. Immovables . 278 § 94. Movables 279 CONTENTS Xlll §9$. The Mtaim" locus r eg7 1 acium" in the Lzvi of Things . . . 281 § 96. Ownership and Possession 283 § 97. Limitation of Vindication in Respect of Movable Things . . 284 § 98. Prescription 285 § 99. Rights of Pledge in Movables and Choses in Action . . . 287 § 100. Rights of Pledge in Immovables 288 § loi. Roguin's Project to regulate the International Law of Things . 290 Law of Obligations § 102. Introductory Remarks . . 291 § 103. General Discussion. Review of the Various Theories . . . 295 § 104. The Correct Doctrinary Standard 300 § 105. Legislative Proposals for the Regulation of the International Law of Obligations . . .... 306 General Questions of the Law of Obligations § lo6. Contractual Obligations in General § 107. Set-off or Compensation § 108. Payment of Interest § 109. Agency .... § 1 10. Assignment of Obligations § III. Suretyship .... § 112. Performance of Obligations . § 113. Contracts concluded by Letter, Telegram, or Telephone 307 312 314 318 320 322 325 327 Particular Obligations A. Unilateral Obligations § 114. Acts of Acknowledgment 331 §115. Obligation to pay a Debt of Honor 332 §116. Mandate, or Power of Attorney 333 § 117. Loans 334 §118. International Obligations of Great Industrial Enterprises . . 336 §119. State Loans and Other State Obligations 338 § 120. Gifts inter vivos 344 B. Bilateral Obligations § 121. Contracts of Sale 345 § 122. Transactions at Markets, Fairs, and Exchanges .... 349 §123. Contracts of Letting and Hiring .... . . 351 § 124. Contracts for Work in the Manufacture of a Completed Article . 352 §125. Contracts for Work and Labor 353 § 126. Lottery Contracts 355 XIV CONTENTS C. Obligations " quasi ex contractu " § 127. Obligations arising out of Voluntary Agency, Payment by Mistake, and Unjust Enrichment 357 D. Obligations " ex delicto " § 128. The Authoritative Principle Applicable to Torts . . . • 358 § 129. Special Cases of Torts • • 3^5 § 130. Liability of States and Communities for Injuries occurring to For- eigners within their Borders 3^6 Law of Succession § 131- § 132. § 133- § 134- § 135- § 136. § 137. § 138. ^ '39- ^ 140. § 141. § 142. § 143- § 144. § 145. § 146. I 147- § 148. § 149. § ISO. § 151. § 152. § 153- §§ 154 § 157- § 158. § 159. Introductory Remarks 37° The Doctrines adopted by the Various Countries in Regard to Suc- cession 372 A Neutral Doctrine in the Law of Succession .... 375 Professio juris in the Law of Succession ..... 377 Capacity to act, in Respect of Succession ..... 380 The Capacity to succeed possessed by Natural Persons . . .381 The Capacity to succeed possessed by Juristic Persons . . . 387 Real Property in the Law of Succession ...... 389 Aliens and the Law of Succession -391 Gifts causa mortis .......... 391 So-called Coercive Laws in Regard to Succession .... 393 Concerning Husband and Wife 395 Peremptory Rights of Succession 396 Testamentary Capacity ......... 399 Restraints on Testamentary Dispositions ..... 402 Interpretation of Wills and of Other Testamentary Acts . . 403 Form of the Testament ......... 406 Taking up Succession and reducing Legacies to Possession . .413 Distribution of the Inheritance and Function of the Courts . -413 Contracts for Succession . . . . . . . -415 The Effect of Entry into a Religious Order upon Capacity to succeed 418 Rights of the State in Succession . . . . . . .419 Treaties regulating the Law of Succession . . . . .421 iS5i 156 (omitted) The Treaty of 1850-185 5 between the United States of America and Switzerland . . . . . . . . . .423 Interchanges of Declarations between States 427 The Labors of the Hague Conferences Relative to Succession . 427 CONTENTS XV PART THREE international commercial law Commercial Law Proper PAGE § i6o. Introductory Remarks 431 § 161. Rules of Conflict in Commercial Law 435 § 162. Capacity to act of Merchants (qua singult) 436 § 163. The Legal Position of Foreign Merchants Generally . . . 438 § 164. Capacity to act of Business Entities 441 § 165. Attitude of Domestic Law to Foreign Corporations . . . 443 § 166. Branch Establishments 447 § 167. Protection of Firm Names 450 § 168. Law Applicable to Commercial Matters Generally .... 453 § 169. Commercial Sales 455 § 170. Bonds and Notes payable to Bearer 457 §171. Sale of Bonds and Notes payable to Bearer 459 § 172. Business at Exchanges 461 § 173. Speculation in Differences 462 § 174. Bank Transactions 465 § 175. Various Forms of Commercial Organizations and their Auxiliaries . 466 § 176. Factors and Forwarders 469 § 177. Railroad Freight Contracts 470 § 178. Carriage on Inland Waters 473 § 179. Contracts of Insurance 473 § 180. Torts in Commercial Law 475 Law of Bills and Notes § 181. Introductory Remarks 477 § 182. Rules of Conflict in the Law of Bills and Notes .... 480 § 183. Civil Law relating to Bills and Notes . . ' . . . . 482 § 184. Capacity to be obligated on Bills and Notes 485 § 185. Autonomy of the Parties in the Law of Bills and Notes . . . 490 § 186. General Principles Applicable to the Substantive Import of Obliga- tions upon Bills and Notes 490 § 187. The Principal Obligations by Bill or Note, considered separately . 493 § 188. Agency in the Law of Bills and Notes 498 § 189. Suretyship in the Law of Bills and Notes 499 §190. « Domiciled " Bills 500 §191. Purely Formal Provisions relating to Bills and Notes . . .501 § 192. Conditions of Recourse 504 § 193. Vis major as an Excuse for Non-protest 505 § 194. Extra-territorial Significance of the French Moratory Laws . . 506 XVI CONTENTS § 195. Law of Markets and Fairs in Connection with Bills and Notes . 507 § 196. Procedure and Execution for Obligations by Bill or Note . 5°^ § 197. Questions of Proof 5°9 § 198. Limitations of Actions on Bills and Notes 5°9 § 199. Checks 510 Maritime Law § 200. Introductory Remarks .... § 201. The lex f atria of Maritime Law . § 202. Maritime Mortgages .... § 203. Affreightment and Average § 204. Collisions in Harbors and on the High Seas § 205. Contracts against Perils of the Sea 514 S16 S18 520 522 525 APPENDICES n. in. Treaty of the Hague International Conferences to regulate the Con- flict of Laws in Regard to Marriage. In the Original Text and in English 527 Treaty of the Hague International Conferences to regulate the Conflict of Laws and Jurisdictions in Regard to Divorce and Separation. In the Original Text and in English ...... 532 Treaty of the Hague International Conferences to regulate the Conflict of Laws and Jurisdictions in Regard to Guardianship of Minors. In the Original Text and in English 535 Index 539 LIST OF AUTHORITIES A. WORKS UPON INTERNATIONAL PRIVATE LAW AS AN INDEPENDENT SCIENCE I. German and Austrian Authorities W. Schaffner, Entwicklung des internationalen Privatrechts (1841). Savigny, System des heutigen romischen Rechts, viii, pp. 1-367. Translated into English by W. Guthrie. V. Bar, Das internationale Privat- ttnd Strafrecht (1862). Translated into English by G. R. Gillespie. Id,, Theorie und Praxis des internationalen Privatrechts (2d ed.), 1889. i-ii. (Exhaustive criticism in Goldschmid's Z., 38, N. P., 23, p. 305.) Id., Lehrb. des internationalen Privat- und Strafrechts (1892). Id., Von Holtzendorff's Encyklopadie, 5th ed., i, pp. 719-762. Id., " Esguisse du droit international prive" in Journal de droit international privt, xiv, p. 257 ; xv, pp. j, 441. Wachter in Civilist. Archiv, xxiv, p. 230 ; xxv, pp. 1-60, 161-200, 361-419. Vesque v. Puttlingen, Handbuch des in Osterreich geltenden internationalen Privatrechts mit besonderer Berucksichtigung des Staats- und Volkerrechts (2ded., 1878). E. Jettel, Handbuch des internationalen Privat- und Strafrechts mit Rucksicht auf die Gesetzgebungen Osterreichs, Ungarns, Kroatiens und Bosniens (Vienna, 1893). Bohm, Handbuch der internationalen N'achlassbehandlung mit besonderer Riick- sicht auf das deutsche Reich und die einzelnen Bundesstaaten (1881 ; 2d ed., 189s). Id., Handbuch des Rechtshillfsverfahrens im deutschen Reiche und gegeniiber dem Auslande in biirgerlichen Rechtsstreitigkeiten und in Konkurssachen, i (1886) ; ii (1888 : Rechtshulfe in Strafsachen). Id., Die raumliche Herrschaft der Rechtsnormen (ortliche Statutenkollision) auf dem Gebiete des Privatrechtes, einschliesslich des Handels-, Wechsel- und Konkursrechts. Nach Theorie und Rechtsprechung unter besonderer Be- rucksichtigung der Entscheidungen der obersten deutschen GerichtsKofezum Handgebrauche fiir die Praxis (1890). Zitelmann, Internationales Privatrecht, i and ii (1897 and i8g8). xviii LIST OF AUTHORITIES II. French Authorities Mailher de Chassat, TraiU des statuts ou droit international privi (1845). Foelix-Demangeat, Traite de droit international prive (4th ed., 1866), i-ii. A. Weiss, Traiti ttementaire de droit international privi (Paris, 1886; 2d ed., 1889). Id., Traiit thtorique et pratique de droit international privS. Tomex (1892) : "Dela nationalite:' ii (1894): " Le droit de PUranger." iii (1898): '^Les conflits des his.'''' iv (1901). Lain^, Introduction au droit ijiternaiional privi (Paris, 1888), i, 1892 ; ii. Vincent and Pdnaud, Dictionnaire de droit international prive. With the Sup- plements : "Revue de Vannle 1SS8 ; " "Hevue de Pannee iSSg-iSgz." Durand, Essai de droit international prive (1884). Despagnet, Precis de droit international prive precede d''une ttude historique sur la condition des Strangers en France et suivi des textes de tous les traitis interessant les Grangers (1886; 2d ed., 1891). Bard, Pricis de droit international (Paris, 1883). Surville et Arthuys, Cours eUmentaire de droit international prive (3d ed., Paris, 1900). Vareilles-Sommi^res, La synthise du droit international prive, i-ii. III. English and American Authorities Burge, Commentaries on Colonial and Foreign Laws generally and in their Con- flict with Each Other and with the Law of England, i-iv (London, 1838). Phillimore, Commentaries upon International Law, i-iii (3d ed., London, 1879). Vol. iv (1889), "Private International Law or Comity." Dicey, A Digest of the Laws of England with Reference to the Conflict of Laws, with notes of American Cases by Moore (1896). Foote, Concise Treatise on Private International Jurisprudence (London, 1878 ; 2d ed., 1891). Westlake, Treatise on Private International Law (London, 2d ed., 1880) ; trans- lated by V. Holtzendorff (Beriin, 1884; 3d ed., 1890). Lorimer, The Institutes of the Law Nations, i and ii (London, 1883, 1884). Nelson, Selected Cases, Statutes, and Orders illustrative of the Principles of Private International Law as administered in England (London, 1889). Gardner, Institutes of International Law, Public and Private (New York, i860). Story, Commentaries on the Conflict of Laws, Foreign and Domestic (8th ed., Boston, 1883). Kent, Commentaries upon American Law (12th ed., Boston, 1873). With occa- sional references to International Private Law, e.g. ii, pp. 91 et seq., 106, 233, 392, 453- Wharton, Treatise on the Conflict of Laws or Private International Law (2d ed., PhUadelphia, 1881). Merill, Studies in Comparative Jurisprudence and the Conflict of Laws (Boston 1886). Minor, Conflict of Laws or Private International Law (Boston, 1901). LIST OF AUTHORITIES xlx IV. Italian Authorities Rocco, DelV uso e autoritct delle leggi del Regno delle due Sicilie considerate nelle relazioni con le persone e col territorio degli stranieri ossia trattato di diritto civile internazionale (2d ed., Palermo, 1842, 1843). Lomonaco, Trattato di diritto civile internazionale ( 1 874) . Pasquale Fiore, Elementi di diritto internazionale privato {-^d ed., Turin, 1889). /d., Le droit international privi ; translated by Antoine (i, Paris, 1890 ; ii, 1891). Id., Diritto internazionale private o principii per risolvere i conflitti tra le leggi civili, commerciali, giudiziari e penali di stati diversi (3d ed., i, 1888 ; ii, 1889; iii, 1901). Catellani, // diritto internazionale privato e i suoi recenti progressi (i-iii, Turin, 1888; 2ded., i, 1895). Contuzzi, Istituzioni di diritto internazionale pubblico e privato (i, 1885). Id., Diritto internazionale privato (Milan, 1890). Giacomo Grasso, Principii di diritto internazionale pubblico e privato (Florence, 1889). Laghi, // diritto internazionale privato nei sttoi rapporti colle leggi territoriali (i, Bologna, 1888). V. Dutch and Belgian Authorities Laurent, Droit civil international, i-viii. Asser, Sckets van het international Privaatrecht (1879) ; translated by M. Cohn, Das Internationale Privatrecht (Berlin, 1880), and by Rivier, EUments de droit international prive (Paris, 1884). E. Haus, Du droit privS qui rigit les Strangers en Belgique (1874). Dolk, Internatiofiaal Privaatrecht. Personen- und Zakenrecht (Utrecht, 1880 and 1882). Rolin, Principes du droit international privi et application aux matiires du Code civil (i-iii, 1896). VI. Swiss Authorities Brocher, Cours de droit international privS (i-iii, 1 882-1 885). Id., JVouveau traite de droit international prive (1876). Muheim, Die Principien des internationalen Privatrechts im schweizerischen Pri- vatrecht e (Altdorf, 1887). Roguiii, Conflits des his suisses en matiire international et intercantonale (1891). Meili, Geschichte und System des internationalen Privatrechts im Grundriss (Leipzig, 1892). VII. Spanish Authorities M. Torres Campos, Principles de derecho internacional privado (Madrid, 1883) and Estudios de derecho internacional privado (Madrid, l8gi). Also, Bases de una legislacibn sobre extraterritorialidad (Madrid, 1896). De Olivart, Manual de derecho internacional publico y privado (Madrid, 1886). XX LIST OF AUTHORITIES VIII. Russian Authorities V. Martens, Volkerrecht das internationale Recht der civilisierten Nationen. German edition by Bergbohm ; French by L^o, " TraiU de droit inlerna- tionaV (i-iii, 1883-87). Cf. especially ii, pp. 391 et seq. Note. — In addition to this summary, special reference should be made to the bibliographical collections made annually in the Journal de droit international. B. FURTHER REFERENCES I. Periodicals Revue de droit international et de legislation comparee, founded in 1869 by Rolin-Jaequemyns, Rivier, Westlake, and others (i-xxx ; second series, i-iii). Journal du droit international privi, edited by Clunet (i-xxxii). This periodical is frequently called briefly '■^Journal Clunet.'''' Ren^ Vincent, Revue fratiqtce de droit international privk (only for 1891 and 1892). Bbhm, Zeitschrift fur Internationales Privat- und Strafrecht (from 1891 ; from xi onwards by Niemeyer). II. Researches of the Institut de droit international AND of the International Law Association III. Collections of Cases Martens, Causes clUbres du droit des gens (2 vols., 1827). Id., Nouvelles causes ciUbres du droit des gens (2 vols., 1844). Id., Causes ceUbres (2d ed., i-v, 1858-61). References to International Civil Law in this collection are not numerous. Cf. vol. v, p. 295. IV. Historical Researches 1. Laurent, Histoire du droit des gens (2d ed., i-xviii, 1855-70). 2. Wheaton, Histoire du progrh du droit des gens depuis la paix de Westphalie jusqu'a nos jours (i-ii) . William Beach Lawrence, Coimnentaire de Wheaton (i-iv). 3. Pierantoni, Trattaio di diritto internazionale (i, 188 1). V. Collections of Treaties 1. Leibnitz, Codex juris gentium diplomaticus (1693) ?^v,AMantissa codicis (1700). 2. Dumont et Rousset, Corps universel diploniatiqtie du droit des gens, ou recueil des traith de paix, d^alliance faits en Europe depuis Charlema'me «/yj'?<'a/r&««/ (8 vols., Amsterdam, 1726-3 j). With supplement. LIST OF AUTHORITIES xxi 3. Martens, Recueil des traiUs, i-vii (covering period 1760-1857) ; 2d series by Geffcken (i-iii), viii-x (i 857-1 885) ; 2d series continued by Stork. 4. Laghi, Teoria dei trattatiinternazionale (i, 1882). VI. Works upon International Public Law treating also in Part of International Private Law Vattel, Droit des gens (edited by Pradier-Fod^r^, i-iii). V. Holtzendorff, Handbuch des Volkerrechts (i-iv). Calvo, Le droit international theorique et pratique (i-iv, 4th ed., with SuppU- ment gSniral, vi, 1896). Pradier-Foddrd, Traite de droit international public, europien et americain (i- vii; vol. viii still unpublished). A. Rivier, Lehrbtich des Volkerrechts (2d ed., 1899). Id., Principes du droit des gens (i-ii, 1896). Gareis, Institutionen des Volkerrechts (2d ed., 1901). v. Bulmerincq, In Marquardsen's Handbook (1898). UUmann, Volkerrecht (1898), pp. 7-1 1. Travers Twiss, Law of Nations. See especially i, pp. 257-283. Bonfils, Manuel de droit international public (2d ed., 1898). Note. — Authorities upon Commercial Law and the Law of Bills and Notes will be found at the heads of §§ 160, 181, and 200 infra. TABLE OF AMERICAN AND ENGLISH CASES [References are to pages.] Abington v. N. Bridgewater (Mass.), 117. Adams v. Clutterbuck (Eng.), 167. Adams v. Cordis (Mass.), 336. Adams v. Lindsell (Eng.), 330. Albion Ins. Co. u. Mills (Eng.), 319. Alcock V. Smith (Eng.), 281, 322. Andrews v. Henriott (N.Y.), 314. Anstruther v. Adair (Eng.), 233. Anstruther v. Chalmer (Eng.), 386. Armstrong v. Best (N.C.), 195. Armstrong v. Stokes (Eng.), 319. Ash V. R. R. (Md.), 364. Atherton v. Atherton (U.S.), 1 18. Atkinson v. Anderson (Eng.), 188. Atty. Gen. v. Sturge (Eng.), 206. August, The (Eng.), 521. Aymar v. Sheldon (N.Y.), 503. Eallingalls v. Gloster (Eng.), 503. Bank v. Bank (N.Y.), 113. Bank v. Brown (N.Y.), 503. Bank v. Dean (N.Y.), 461. Bank v. Garretson (U.S.), 497. Bank v. Gray (N.Y.), 503. Bank v. Green (la.), 504. Bank v. Hemingway (O.), 314. Bank v. Lee (U.S.), 233. Bank v. Lynch (Md.), 497. Bank v. Price (Md.), 365. Bank v. Sutton Mfg. Co. (U.S.), 493. Bank of Augusta v. Earle (U.S.), 205. Bank of La. v. Williams (Miss.), 188. Bank of Yalo v. Sperry Flour Co. (Cal.), 330- Barber v. Root (Mass.), 239. Bard v. Poole (N.Y.), 206. Barnett v. Kinney (U.S.), 281. Barnett's Trusts, In re (Eng.), 420. Barth v. Backus (N.Y.), 322. Bartsch v. Atwater (Conn.), 336. Baum V. Birchall (Pa.), 195. Beck, In re (N.Y.), 106. Becker v. Becker (N.Y.), 239. Belgenland, The (U.S.), 524. Benners v. Clemens (Pa.), 336. Bennett v. Association (Pa.), 317. Bentley v. Whittemore (N.J.), 322. Bethel v. Bethel (Eng.), 225. Bettys V. R. R. (Wis.), 365. Blackinton v. Blackinton (Mass.), 250. Blanchard v. Russel (Mass.), 141. Bloxam V. Favre (Eng.), 411. Bonati v. Welsh (N.Y.), 232. Bond V. Cummings (Me.), 233. Bonelli's Case (Eng.), 152. Bourcier v, Lanesse (La.), 233. Boyd V. Thayer (U.S.), 126. Bradley v. Johnston (N.J.), 195. Brauer v. Shaw (Mass.), 330. Brent v. Chapman (U.S.), 287. Brine v. Ins. Co. (U.S.), 167. Brinkley v. Atty. Gen. (Eng.), 225. Bristol V. Warner (Conn.), 485. Bristow V. Sequeville (Eng.), 166. British S. Africa Co. v. Co. de Mocambique (Eng.), 363. Brock's Estate (Ala.), 386. Brook V. Brook (Eng.), 155, 224. Brown v. Jones (Ind.), 503. Brown V. Parker (Wis.), 171. Browne v. Dexter (Cal.), 127. Buckles V. Ellers (Ind.), 363. Bullock J/. Caird (Eng.), 206. Burns v. R. R. (Ind.), 364. Callahan v. O'Brien (N.Y.), 105. Calvin z/. Reed (Pa.), 118. Calvin's Case (Eng.), 124. Cammell v. Sewell (Eng.), 281. Cappler, In re (la.), 157, Carib Prince, The (U.S.), 521. Carpenter v. R. R. (Me.), 364. xxiv INTERNATIONAL CIVIL AND COMMERCIAL LAW Carroll v. Waters (La.), 325, 442. Carson v. Smith (Mo.), 318. Carthage v. Duvall (111.), 348. Chamberlain v. Chamberlain (N.Y.), 388. Chapman v. Robertson (N.Y.), 279. Chatenayz;, Brazilian S. T. Co. (Eng.),3l9. Claflin V. IVIayer (La.), 320. Clanton v. Barnes (Ala.), 232. Clark V. Dales (N.Y.), 330. Clark V. Peat Co. (Conn.), 322. Cockerell v. Barber (Eng.), 336. Coddington v. Coddington (N. J.), 238. Collis V. Hector (Eng.), 232. Com. u. Clary (Mass.), 126. Com. V. Fleming (Pa.), 349. Com. V. Lane (Mass.), 202. Comitis V. Parker (U.S.), 125, 127. Concha v. Murietta (Eng.), 153. Consequa v. Fanning (N.Y.), 317. Consolidated T. L. Co. v. Collier (111.), 322. Cooper V. Cooper (Eng.), 188, 195. Cope V. Alden (N.Y.), 317. Cox V. Bank (U.S.), 501. Cox V. U.S. (U.S.), 325. Cranstown v. Johnston (Eng.), 279. Crapo V. Kelly (U.S.), 521. Cronan v. Fox (N. J.), 281. Cross V. Cross (N.Y.), 238. Cross V. U.S. Trust Co. (N.Y.), 281, 386. Cruger's Will, In re (N.Y.), 397. Crum V. Bliss (Conn.), 388. Curran v. Witter (Wis.), 485. Curtis V. Hutton (Eng.), 388. Da Costa v. Davis (N. J.), 167, Dainese v. Hale (U.S.), 37. Daniel v. Hill (Ala.), 119. Davenport v. Karnes (111.), 232. Davis V. Zimmermann (Pa.), 232. De Baca v. U.S. (U.S.), 126. De Boimont v. Penniman (U.S.), 259. Deck V. Deck (Eng.), 238. De Lane v. Moore (U.S.), 233. De MeU v. De Meli (N.Y.), 238. Dennick v. R. R. (U.S.), 364. Descadillas v. Harris (Mass.), 336. Desmare v. U.S. (U.S.), 117, 118. Despard v. Churchill (N.Y.), 279. De Wolf K. Johnson (U.S.), 323. Deyo V. Thompson (N.Y.), 485. Dickinson v. Edwards (N.Y.), 316. Dixon V, Ramsay (U.S.), 411. Dobree v. Napier (Eng.), 364. Doglioni v. Crispin (Eng.), 386. Dolphin V. Robins (Eng.), 118. Don V. Lippman (Eng.), 172. Douglas V. Douglas (Eng.), 118. Dull V. Bricker (Pa.), 497. Dunlop V. Higgins (Eng.), 330. Dupuy V. Wurtz (.N.Y.), 117. Eastwood V. Kennedy (Md.), 171. Eaves Costume Co. v. Pratt (N.Y.), 118 Eliason %<. Henshaw (U.S.), 330. Emerson v. Partridge (Vt.), 322. Ennisi'. Smith (U.S.), 386. Enohin v. Wylie (Eng.), 386. Ernst V. R. & B. S. Gas Co. (N.Y.), 205. Este V. Smyth (Eng.), 225, 233. Evans v, Cleary (Pa.), 195. Everett v. Vendryes (N.Y.), 501. Ewing, Orr, In re (Eng.), 49. Fairchild v. R. R. (Pa.), 473. Fant V. Miller (Va.), 493. Farmers Ins. Co. v. Harrah (Ind.), 205. Fattosini's Estate, In re (N.Y.), 106. Fay V. Taylor (N.Y.), 106. Fergusson v. Tyffe (Eng.), 317. Fetch V. Remer (Mich.), 317. Fitzgerald, In re (Eng.), 160, 233. Flagg V. Baldwin (N. J.), 157. Forbes v. Cochrane (Eng.), 201. Ford V. Ford (Wis.), 404. Frank v. Bobbitt (Mass.), 281. Freese v. Brownell (N. J.), 317, 501. Freke v. Carbery (Eng.), 279. Frost V. Bisbin (N.Y.), 118. Fuss V. Fuss (Wis.), 232. Gaetano, The (Eng.), 519, 321. Gambler v. Gambler (Eng.), 250. Gamier, In re (Eng.), 192. Genet v. President, etc. (N.Y.), 167. Geurard v. Geurard (Ga.), 404. Gibson v. Holland (Eng.), 167. Gilbreath v. Bunce (Mo.), 188. Gilman v. Gilman (Me.), 411. Gleitsmann v. Gleitsmann (N.Y.), 232, Glenn v. Thistle (Miss.), 348. Gonzalez, In re (U.S.), 126. Goodman's Trusts, In re (Eng.), 386.. Goodrich v. Houghton (N.Y.), 357. Graham v. Norfolk Bank (N.Y.), 195, Greene v. Windham (Me.), 118. Guepratte v. Young (Eng.), 195, TABLE OF AMERICAN AND ENGLISH CASES XXV Hahnemannian L. I. Co. v. Beebe (111.)) 205. Hairston v. Hairston (Miss.), 1 17. Hall V. Cordell (U.S.), 497. Hall, In re (N.Y.), 127, 130, 224, 267. Halley v. Ball (111.), 195. Halley, The (Eng.), 364, 524. Hamilton v. Ins. Co. (Pa.), 330. Hanley v. Donoghue (U.S.), 48, 152. Harris's Case (Eng.), 330. Hartwell v. Tefft (R. I.), 264. Harvey v. Farnie (Eng.), 239. Hauerstein v. Lyndham (U.S.), 106. Hausman v. Nye (Ind.), 167. Hayes v. Hayes (111.), 117. Healey o. Reed (Mass.), 388, 397. Heisinger's Case (U.S.), 125. Hernando, In re (Eng.), 167. Herrick v. R. R. (Minn.), 364. Hicks V. Powell (Eng.), 287. Higgins V. Murray (N.Y.), 349. Hill V. Chase (Mass.), 319. Hindman's Appeal (Pa.), 117. Hobbs V. R. R. (Tenn.), 153. Holmes v. Hengen (N.Y.), 171. Hoyt V. Sprague (U.S.), 192. Huber v. Steiner (Eng.), 171. Hunt V. Hunt (N.Y.), 250. Hunt V. Jones (R.I.), 167. Huntington v. Atrill (U.S.), 153, 202. Hyde v. Goodnow (N.Y.), 320. Hyde v. Hyde (Eng.), 152, 201. Industrie, The (Eng.), 521. Inglis V. Usherwood (Eng.), 285. Inslee v. Lane (N. H.), 285. Jacobs V. Credit Lyonnais (Eng.), 356. Jarvis v. Wilson (Conn.), 497. Johnson v. Clark (N.Y.), 497. Johnstone v. Beattie (Eng.), 250. Kanaka Man, In re (Cal.), 126. Kaufman v. Gerson (Eng.), 157. Keep's Will, In re (N.Y.), 417. Kelly V. Kelly (Mass.), 153. Kendall v. Coons (Ky.), 232. Kennedy v. Knight (Wis.), 317. Kentucky v. Bassford (N.Y.), 356. Kerr v. Dogherty (N.Y.), 388. King ». Cross (U.S.), 288. Kirtland v. Hotchkiss (U.S.), 321. Kline v. Baker (Mass.), 473. Knight V. R. R. (Pa.), 363. Kolbe V. People (111.), 260. Koster v. Merritt (Conn.), 520. Kraemer v. Kraemer (Cal.), 233. Laird v. R. R. (N.H.), 364. Lamar v. Micou (U.S.), 118, 186. Lancaster v. A. I. Co. (N.Y.), 205, 206. Lee V. Wilcocks (Pa.), 336. Le Forest v. Tolman (Mass.), 363. Leith V. Leith (N.H.), 238. Le Mesurier z;. Le Mesurier (Eng.), 118, 238. Leroux v. Brown (Eng.), 167. Leon, The (Eng.), 524. Leonard v. Columbia S. N. Co. (N.Y.), 364. Lerken v. Wilson (Mass.), 288. Lichtenberger v. Graham (Ind.), 233. Lindsay v. Hill (Me.), 318. Lingen v. Lingen (Ala.), 267. Liverpool S. Co. u. Phenix Ins. Co. (U.S.). 521. Lloyd V. Guilbert (Eng.), 519, 521. Lloyd V. Petitjean (Eng.), 225. Look Tin Sing, In re (U.S.), 125. Lougee v. Washburn (N.H.), 318. Loveland v. Davidson (Pa.), 1 72. Macdonald v. Macdonald (Scot.), 250, 259. McDaniell v. R. R. (la.), 473. McElmoyle v. Cohen (U.S.), 172. McElrath v. R. R. (Pa.), 279. Mclntyre v. Parks (Mass.), 356. McShane v. McShane (N.J.), 238. Mahoney v. U.S. (U.S.), 38. Male V. Roberts (Eng.), 188. Malpica v. McKown (La.), 519. Mapes V. Society _(N.Y.), 388. Marshall v. Marshall (N.Y.), 150. Marvin Safe Co. v. Norton (N.J.), 348. Maspons v. Mildred (Eng.), 319. Masson v. Lake (U.S.), 503. Matthews v. Dickinson (N.Y.), 233. Medway v. Needham (Mass.), 224. Meister v. Moore (U.S.), 225. Merchant's Bank v. Spalding (N.Y.), 348. Meyer v. Dresser (Eng.), 314. Miller v. Campbell (N.Y.), 195. Miller v. Dows (U.S.), 279. Miller v. Miller (N.Y.), 267. Miller v. Reynolds (N.Y.), 499. Miller v. Wilson (111.), i66, 167. Milliken v. Pratt (Mass.), 192, 195, 330. xxvi INTERNATIONAL CIVIL AND COMMERCIAL LAW Mineral Point R. Co. v. Barron (111.). 314- Missouri S. S. Co., Re (Eng.), 473. Monroe v. Douglass (N.Y.), 152. Moon V. Pierson (la.), 330. Moore v, Hegeman (N.Y.), 202, 224. Moore v. Willett (N.Y.), 520. Morgan v. Neville (Pa.), 288. Mount V. Tuttle (N.Y.), 388. Munro v. Munro (Eng.), 264, 268. Musson V. Trigg (Miss.), 195. National Board v. Melchers (U.S.), 521. Needham v. R. R. (Vt.), 363. New V. Bonaker (Eng.), 206. N. Y. Life Ins. & T. Co. v. Viele (N.Y.), 264. Niboyet v. Niboyet (Eng.), 185. Nugent V. Vetzcra (Eng.), 192, 250. Gates V. R. R. (Mo.), 364. O'Dea V. O'Dea (N.Y.), 238. Ogden V. FoUiott (Eng.), 201. O'Reagan v. Cunard S. Co. (Mass.), 521. Overton v. Bolton (Tenn.), 493. Owings V. Hull (U.S.), 319. Paradise v. Farmers' Bank (La.), 285. Pennegar v. State (Tenn.), 150, 157. People V. Dewey (N.Y.), 250. Pepin V. Bruyere (Eng.), 279, 412. Perry v. M. H. Iron Co. (R. I.), 330. Phillips V. Eyre (Eng.), 363. Picker v. L. & C. B. Co. (Eng.), 461. Pine V. Smith (Mass.), 317. Pitt z/. Dacre (Eng.), 287. Plant If. Harrison (N.Y.), 117. Piatt's Appeal (Pa.), 238. Po, In re (N.Y.), 126. Poison V. Stewart (Mass.), 348. Pomeroy v. Ainsworth (N.Y.), 503. Potter V. Brown (Eng.), 411. Potter V. Titcomb (Me.), 386. Price V. Price (Pa.), 117. Pritchard v. Norton (U.S.), 166, 167, 314. Quarrier v. Colston (Eng.), 157. Queensland, etc., Co., In re (Eng.), 281, 322. Quinn v. Ins. Co. (La.), 320. R. R. V. Gebhard (U.S.), 206. R. R. V. McConnick (Tex.), 364. R. R. v. Nash (Ala.), 288. R. R. V. Shand (Eng.), 473. R. R. V. Smith (111.), 473. R. R. V. Sturm (U.S.), 288. Ray V. Porter (Ala.), 503. Raynham v. Canton (Mass.), 225. Redding, In re (Scot.), 238. Redgrave v. Redgrave (Md.), 225. Reg. V. Labouchere (Eng.), 364. Relf z'. Rundle (U.S.), 205. Rex V. Topham (Eng.), 364. Richardson v. R. R. (Mass.), 363. Ringer v. Churchill (Scot.), 259. Robertson v. Nat. S. Co. (N.Y.), 473. Robins v. Dolphin (Eng.), 41 1. Roche V, Washington (Ind.), 225. Roquette v. Overmann (Eng.), 503, 504. Ross V. Ross (Can.), 167. Ross V. Ross (Mass.), 264, 267, 386. Rothrock v, Ins. Co. (Mass.), 206. Rousillon V. Rousillon (Eng.), 356. Rucks V. Taylor (Miss.), 171. Ruding V. Smith (Eng.), 225. Ruggles V. Keeler (N.Y.), 314. Ruse V. Ins. Co. (N.Y.), 320. Russell V. Hooker (Conn.), 281. Ryan v. R. R. (Tex.), 473. Saul V. His Creditors (La.), 146. SchoUenberger, Ex parte (U.S.), 205. Scofield V. Day (N.Y.), 336. Scotia, The (U.S.), 524. Scotland, The (U.S.), 524. Scott V. Pilkington (N.Y.), 497. Scrimshire v. Scrimshire (Eng.), 83. Scudder v. Bank (U.S.), 31 7, 497. Sewall V. Sewall (Mass.), 118. Shaw V. Gould (Eng.), 238. Shelby V. Guy (U.S.), 287. Simonds v. Allen (111.), 224. Simonin v. Mallac (Eng.), 225, 239. Simonson v. Waller (N.Y.), 386. Slater v. Mexican N. R. Co. (U.S.), 364. Sloane v. Torry (Mo.), 152. Slocum V. Pomeroy (U.S.), 317. Smith V. Smith (Miss.), 267. Sondheim v. Gilbert (Ind.), 157. Sottomayor v. De Barros (Eng.), 224. South American Co., In re (Eng.), 317. State V. A. E. Co. (la.), 349. State V. Macdonald (Minn.), 126. State V. O'Neill (Vt.), 349. State V. Weatherby (Me.), 202. State Steamship Co., In re (U.S.), 524. TABLE OF AMERICAN AND ENGLISH CASES xxvu Steinkauler's Case (U.S.), 127. Stevens v. Gregg (Ky.), 314. Stewart v. Russell (N.Y.), 105. Swann v. Swann (U.S.), 157. Sylvester v. Crohan, 501. Thatcher v. Morris (N.Y.), 157. Thompson, In re (N.Y.), n8. Thompson v. Ketcham (N.Y.), 188. Tilden v. Blair (U.S.), 493. Towne v. Rice (Mass.), 493. Trevor v. Wood (N.Y.), 330. Trimbley v. Vignier (Eng.), 166. Tyler v. Murray (Md.), 117. Udny V. Udny (Eng.), 117, 186. U.S. V. Cruikshank (U.S.), 126. Usher v. R. R. (Pa.), 364. Van Matre v. Sankey (111.), 264. Van Storch v. Griffin (Pa.), 224. Vassar v. Camp (N.Y.), 330. Vaucher v. Solicitor to Treas. (Eng.) , 266, 267. Vermont Bank v. Porter (Conn.), 314. Vogel V. Lehritter (N.Y.), 402. Vraner v. Ross (Mass.), i65. Walsh V. Mayer (U.S.), 171. Warner v. Jaffray (N.Y.), 281, 322. Waters v. Barton (Tenn.), 287. Waters v. Spencer (N.Y.), 153. Watkins v. Watkins (Mass.), 238. Watson V. Brewster (Pa.), 314. Webster v. Webster (N. H.), 224. Welch V. Adams (Mass.), 279. Whicker v. Hume (Eng.), 402. Whiston V. Stodder (La.), 285. White V. Howard (N.Y.), 119. White I/. White (R.I.), 118. Whitford v. R. R. (N.Y.), 364. Wilcox V. Green (N.Y.), 167. Wilkins v. EUett (U.S.), 386. Williams v. Colonial Bank (Eng.), 461. Williams v. Haynes (la.), 314. Williams 11. Wade (Mass.), 325. Williams v. Williams (N.Y.), 238. Wilson V. Lewiston Mill Co. (N.Y.), 167. Wilson V. Wilson (Eng.), 238. Wong Kim Ark, In re (U.S.), 125. Wood V. Clutterbuck (Eng.), 279. Woodward v. R. R. (O.), 363. Worms V. De Valdor (Eng.), 190. Wright's Trusts, In re (Eng.), 157. Wrigley, /» ;-« (N.Y.), 118. Wynn v. Callander (Eng.), 157. Yamashita, In re (Wash.), 126. Zeltner v. Irwin (N.Y.), 330. INTERNATIONAL CIVIL AND COMMERCIAL LAW INTRODUCTION INTERNATIONAL PRIVATE LAW IN GENERAL § 1. General Conception and Classification of International Private Law. L. Renault, Introduction a VHude du droit international (Paris, 1879). M. A. Vaugeois, Du rdle et de la formation du droit international privS (Paris 1883). Fillet, Le droit international f rive considire dans ses rapports avec le droit inter- national public. Reprint from Revue pratique de droit international privi (1892). ^TfXir iSuDTtKou Ste^voiJS SiKatov ejcrayojy^ (Athens, iSqj). Westlake, " Introduction au droit international privi,'''' in Revue de droit inter- national, xii, pp. 23-46. Woolsey, Introduction to the Study of International Law (6th ed., New York, 1891). Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, 1896, pp. I et seq. (Introduction). Fusinato, " Di una parte aliquanto trascurata del diritto internazionale e della sua organizzazione scientifica e sistematica}'' in Per il xxxv. anno d'' insegna- mento di F. Serafini, 1892, pp. 1-28. A. Corsi, Studi di diritto internazionale privato (1900). Scipione Gemma, Propedeutica al diritto internazionale privato (Bologna, 1899). Jitta, La mtthode du droit international privi (The Hague, 1890). Id., '■^ Das Wesen des internationalen Privatrechts^'' in Archiv fur 'offentliches Recht, xiv, pp. 301-327. Then v. Bar, id., xv, pp. 1-49, and reply by Jitta, p. 564. Niemeyer, Zur Methodik des internationalen Privatrechts (Leipzig, 1894). Triepel, V'olkerrecht und Lxmdesrecht (1899), pp. 20-26. Kahn, " Uber Inhalt, Natur und Methode des internationalen Privatrechts^'' in Ihering^s Jahrb'ucher fur die Dogmatik des burgerlichen Rechts, 2d series, iv, pp. 1-87 (also published separately). Meili, " Die Doctrin des internationalen Privatrechts,^^ in Zeitschrift fur Inter- nationales Privat- und Straf recht, i, pp. 1-23 and 135-170. Id., " Das wissenschaftliche Problem des internationalen Privatrechts^'' in Oster- reichisches Centralblatt fiir die juristische Praxis, xv, pp. 193-222. 2 INTERNATIONAL CIVIL AND COMMERCIAL LAW I. Its Scope It is characteristic of modern times, that the legal relations of persons are not confined within the boundaries of any single nation. Man has become, as it were, an international subject of law. We are at the present time able to say, without exaggeration, that com- merce is carried on with the greatest facility between the different parts of the world. Subjects of different nations intermarry. Contracts and other obligatory relationships are entered into out- side the land in which the parties are citizens or are domiciled. Persons die and leave estates beyond the land of nationality or domicile. Legal instruments are executed in foreign lands between citizens of the same or different countries. Property is owned or possessed by persons alien to the territory in which it is situated. In all these cases, the laws of the different nations relating to Persons, Domestic Relations, Things, Obligations, and Succession are brought into a kind of international relationship with each other. Besides the conflicts in these branches, which, in the termi- nology prevailing on the Continent of Europe, constitute the Civil Law, there is the possibility of conflicts in other branches of law, e.g. in Procedure, by the prosecution of suits by aliens or non-resi- dents in local courts ; in Bankruptcy, by their participation in local proceedings ; in criminal matters, by breaches of the penal laws. These conditions must be regulated by certain objectively clear legal rules which it is the task of legislation and judicature to discover and establish. I. The science of International Private Law did not originate in modern times, though it is only during the past few decades that it has attained its present significance. Of course, even in ancient times, international relations existed, especially by reason of mari- time commerce, but man has become cosmopoUtan only through the modern efficient means of intercommunication. These, cooperating with the tendency to lay aside former narrow rules of international law, have lifted the individual out of the confines of the internal state and have permitted him to enter legal relationships in the most diversified forms with the subjects of other nations, however distant. We have entered upon a period in which the relationships of society are most complicated because of the increase in interna- INTRODUCTION 3 tional intercourse, the diversification of industry, and the aggrega- tion of population in great centres. To harmoniously adjust these relationships is in part the problem of our science. 2. In modern times, international business is equally, if not more important than that which is conducted in the interior, and the legal complications which result from it deserve equal attention. A clear and informative science of international law has never before been so necessary. Instead of this, however, the doctrines upon the subject are largely fragmentary, and it is not even clear how we shall circumscribe the domain of the material in hand. 3. International Private Law in its broadest sense {i.e. includ- ing criminal law and general procedure) is concerned with the same questions as are considered when dealing with domestic private law and procedure, though, of course, the legal point of view is a different one. The problems which confront us interna- tionally are approached from two directions, viz. : — 1. in how far aliens, sojourning or domiciled in the local state, are specifically subject to its laws, and in how far they remain subject to the laws of their own country ; 2. in how far citizens of the local state, sojourning or domiciled in foreign countries, are specifically subject to laws there in force, and how far they remain subject to the laws of the local state. For example, the law of Switzerland distinguishes the private legal relations existing between : — 1. an alien locally with a Swiss ; 2. an aUen locally with another alien; here we can subdivide the relations into those between : — {a) an alien belonging to State A and {b) an alien belonging to State B, or (^) two subjects of the same state ; 3. a Swiss in a foreign state with another Swiss ; 4. a Swiss in a foreign state with an alien. II. Division of the Subject-matter When we are dealing with legal questions of an international character, it is necessary, in order to obtain clear conceptions, to retain the classification followed with regard to the internal law. 4 INTERNATIONAL CIVIL AND COMMERCIAL LAW International law can and must be divided in the same manner as we divide the internal or domestic law. The following subdivisions thus suggest themselves : — (a) International Public Law. (b) International {or External^ Private Law, to which belong Civil, Commercial, and Maritime Law and the Law of Bills and Notes. (c) International {or External') Civil Procedure. (d) International {or External) Criminal Procedure. To this might also be added International Administrative Law. Confer, e.g. : — UUmann, " Des commissions sanitaires internationales dans la guerre^' in Revue de droit international., xi, pp. 527-531. Id., " La luite internationale contre les ipidemies de la guerre^'' in Revue genSrale de droit international public, iv, pp. 437-445. Id., Volkerrecht, 2d ed., pp. 7-9. 2. It is almost universally agreed that International Law is divided into the two groups of International Public and Interna- tional Private Law, but it is not clear exactly how much is contained within the scope of each. This alone is sufficient to explain the divergent classifications and manifold definitions. III. Nomenclature I. Formerly the term " conflict of statutes " was employed. The title " foreign law " also occurs. Thoel applies the phrase " conflict of coordinating legal rules." Savigny speaks of the " broader dominion of the law " or else of " the local jurisdiction of the rules of law." English and American jurists, as for instance Story, Wharton, and Dicey, speak of the " conflict of laws." In this respect they accord with older authorities upon the subject. Rivier is inclined, even now, to give this term the preference. French authors use the term "droit international priv^," and this name has also been adopted by certain English and American jurists, such as Westlake and Phillimore. It is also employed by German, Italian, Spanish, and Swiss authorities, although in Ger- many there still seems a certain amount of hesitation. In the reports of the decisions of the German Imperial Court, the term which first occurs is, "the local appHcation of the law"; then INTRODUCTION 5 parenthetically the term "conflict of statutes" crept in, and finally the independent phrase "International Private Law." This name still meets with opposition in some quarters. It originated with Bentham, who was the first to speak of "inter- national law." He was manifestly pleased with his philological discovery, as he accompanied it with the words, " This term is new, but easy of comprehension." Bekker, in his work on the coupon litigation of the Austrian railways (1881, p. 56), says that the old name of " conflict of statutes " gives a wrong conception, while the newer term " International Private Law " does not make the boundary sharp enough. E. Cimbali, in " Di una nuova denomina- zione del cosidetto diritto intemazionale privato" (2d ed., Rome, 1893), proposes the terminology "diritto privato et diritto penale dello straniero," but this thought is neither new nor commendable. Cimbali undertakes to apply the term "diritto internazionale pri- vato " to those rules which regulate the private legal relations of states between themselves, such as in the purchase and sale of ter- ritories, governmental loans, and other commercial transactions. He is opposed for sound reasons by Fr. Kahn in his article in Iherin^s Jahrbiicher fiir Dogmatik (xi, 2d sen, iv, pp. 4-5). The need in that department for a separate branch of law is scarcely great enough. Vareilles-Sommieres, in " La synthase du droit international priv^" (vol. i, pp. xxxi-xxxii), thinks that it is to be regretted that the name "droit des Strangers" or " droit pir^grinal" has not been adopted. Lain6, however, in his essay, " Considerations sur le droit international priv^ d, propos d'un livre ricent" (1900, p. 14), properly replies, that especially the term " droit pMgrinal" would not be accepted by anybody ; " it would imply a false analogy between the peregrines of the Roman world and the aliens of the modern." 2. The term "International Private Law" is indeed not en- tirely satisfactory, as the following objections may be urged against it : — {a) The name takes for granted that there is already in existence an established law or code applicable to the international private legal relations of individuals. It creates the illusion that there is, or ought to be, a universal authority to issue laws common to the various states. 6 INTERNATIONAL CIVIL AND COMMERCIAL LAW (3) The term " private law " is here employed in another sense from that in which it is usually used in domestic law, because the execution of civil judgments, procedure in general, and the prosecution of foreign criminals are questions very commonly conceived as within the domain of International Private Law. 3. Some jurists have opposed placing questions of Criminal Law under the heading of International Private Law. Again, nearly all are agreed that many questions of Procedure do not fall in this category. When used to cover all these topics, the term is carelessly employed to designate the law which refers to the pri- vate individual in international matters, whether referring to his private life proper, that is to say, Civil Law in its modern significa- tion ; to the manner of prosecuting legal remedies, that is to say, International Civil Procedure ; or Criminal Law (including Criminal Procedure) as applicable to foreign criminals, that is to say, Inter- national Criminal Law and Procedure. Lain6 concludes that International Private Law should be divided into different groups of topics; viz., into Civil, Commer- cial, and Criminal International Private Law. In describing his position he defines as follows : — It is that law which regulates the relations of the states in regard to the conflict of laws. From a different point of view Laine defines as follows : — It is that law which, after the nationality of the individual has been fixed, regulates the relations of the states in regard to the legal standing of their subjects and the effect of the judgments of their courts. This is unsound, as it applies only where the national law is the adopted standard. In order to define the topic in its broadest terms, the following would seem preferable : — // is the science of international statutory and legal conflicts in regard to private persons, or the science of statutory and legal con- flicts in international private relations. We thus return to the old nomenclature " conflictus " or " collisio legum" but in doing so, we must exclude its application to those conflicts which arise in International Public Law. In speaking of the entire domain we may employ the term " conflict of laws in INTRODUCTION 7 international relations," and in order to restrict its application to private conflicts we may say, "the conflict of laws in the inter- national legal relations of private persons." In order to define our topic in its more precise signification, we propose the following : — // comprises that complex of essentially private legal rules and principles which divide off the jurisdiction and the laws of various nations, when private legal relations produce, or seem to produce, competition or conflict among such laws. Or as an alternative : — International Private Law comprises that subject-matter of pri- vate law, of which the rules are so coordinated, that one and the same private legal relationship may or must be referred to the local laws of one or more other independent jurisdictions, in order to deter- mine its origin, validity, effect, and termination. In order to simplify international jurisprudence, it would cer- tainly be desirable to have the terminology in all modern languages the same, and for this reason it would seem best to retain the already widely accepted term " International Private Law," keep- ing in mind, however, that it embraces only International Civil and Commercial Law, the latter including also the Law of Bills and Maritime Law. It is this classification which has been adopted in the present work. Approaching the subject of International Civil and Commercial Law, are those of International Civil Procedure and International Criminal Law and Procedure, but these divisions are just as much to be kept separate as the parallel divisions of domestic law. The separation from Criminal Law is not only necessary methodi- cally but also practically, because International Civil and Commer- cial Law does not deal with the sovereignty of states. It is in no sense a part of International Public Law. It is true, the divisions are connected to a certain extent, but only in about the same degree as Domestic Public Law with Private Law. 4. The principal difference between International Public and International Private Law lies in the following : — {a) In International Public Law {"droit des gens"; "V'dlker- recht") the subjects are the various nations, and the legal rela- tions existing between them are studied. It comprises those 8 INTERNATIONAL CIVIL AND COMMERCIAL LAW rules which regulate and establish the rights and duties of com- merce-protecting states over against each other. The subjects of International Private Law 2xe. private persons. This term includes also juristic or artificial persons and some- times the state itself. {p) The tribunal which determines disputes is usually different in the two cases. In matters of International Private Law, the courts are almost always competent, while up till now, no organic tribunal has been created for determining disputes in International Pubhc Law (excepting, to a hmited extent, the new C our permanent d' arbitrage at The Hague). When it is said that International Public and International Private Law touch one another frequently, what is meant is that considerations of the former may play a part in regard to the lat- ter. We particularly emphasize the following points : — (a) In International Private Law, the prs-judicial question presents itself at the outset of most cases, as to what legal position is to be assigned to aliens. (3) The practical realization of claims in International Private Law often presupposes the existence of international treaties, (f) International treaties, the particularly authoritative source of the law, frequently deal with both public and private interests at the same time. NOTES 1. L. Challande, in his treatise '■^Das vblkerrecMliche Recktsverhdltnis" {Archiv fur offentliches Recht, xvi, p. 575), says that the direct and unconditional denial of any system of International Public Law seems to have gone out of style. 2. Jellinek, "Z'aj' Recht des niodernen Staates" vol. i (1900), p. 120, says that the term " international law " is ambiguous and misleading and that it were better to speak of " interstate law " than of '^jus inter gentes " or " nationes.^^ 3. The various nomenclature of the subject is also given by Dicey, " Conflict of Laws," pp. 14-15, e.g. "local limits of law," " intermunicipal law," "the extra- territorial effect of law," " the extraterritorial recognition of rights." Holland also proposes the term ^^ droit prive {ou selon la cas, penal) extraterritorial '''' {Revue de droit international, xii, 581). Dicey, p. 14, thinks "the expression 'interna- tional private law' is no doubt a slight improvement on 'private international law,' as it points out that the rules which the name denotes belong to the domain of private law.'' 4. The Deutsche Juristische Zeitung, 1902, pp. 25-26, proposes in future to say, " the doctrine of the local change of laws," because it is a system indicating to the judge when to exchange the local for a foreign code. This new proposal is apt to lead us beyond the bounds of serious discussion. INTRODUCTION 9 § 2. Private Associations for the Development of International Private Law. Two societies have thus far been founded which have engaged themselves with the detailed study of International Private Law. Both are scientific associations without official character. A brief mention of their organization and objects is in point, as their labors are frequently referred to in the following pages. I. The Association for the Refonn and Codification of the Law of Nations, now known as the International Law Association. The society was founded at Brussels in 1873, and its work was already at that time considered cooperative with that of the Insti- tute of International Law (see infra). Its membership is entirely unrestricted. It has published the reports of its conferences. Its constitution is to be found in " A Summary of the Proceedings of the 3d Annual Conference held at The Hague " (London, 1875, pp. 25-29). As amended in 1887 (Report of the 13th Conference, pp. 22-24), it provides that "the objects of the association shall be the reform and codification of the law of nations." It seeks to further the progress of International Law in its practical applica- tion and in public opinion. Sessions have been held at many of the chief cities of Europe and one in America, in 1899, at Buffalo. The proceedings are conducted partly in English and partly in French, as the members have the option of using either language. II. The Institute of Liternational Law. G. Moynier, V Institut international (Paris, 1890). Iwanowsky, DInstitut de droit international et ses rapports avec les sociUes juri- diques des divers pays (Odessa, 1894). Stoerk, Die Litteratur des internationalen Rechts, 1884-1894 (1896). Rivier, Principes dii droit des gens, i, p. 33. The Institute of International Law was founded at Ghent in 1873 and is in the nature of a closed corporation or international academy. The following [translated] extract of the by-laws will show with what purpose it was established (Art. I) : — Its object is to promote the progress of international law : — 1. in endeavoring to formulate the general principles of the science in conformity with the legal conscience of the modern civilized world ; 2. in striving toward a gradual and progressive codification of inter- national law ; 10 INTERNATIONAL CIVIL AND COMMERCIAL LAW 3. in obtaining official sanction of principles recognized as being m harmony with the needs of modern society ; 4. in contributing, to the extent of its competence, toward the maintenance of peace, or the observation of the laws of warfare ; 5. in examining the difficulties which arise in the interpretation or application of the law, and, in the proper case, in giving legal opinions in doubtful or controverted cases ; 6. in promoting, by publications, by instruction of the public, or by other means, the triumph of those principles of justice and humanity which should govern the relations of peoples among themselves. Sessions of the Institute are held at intervals of not less than one nor more than tvs^o years. The proceedings are conducted in French and are reported in the Revue de droit international and in the "Annuaire" of the society. A "tableau g^n^ral" was pub- lished in 1893 upon the organization of the Institute, its work, and personnel during the first two decades of its existence. § 3. The Distinction between International Private Law and Comparative Jurisprudence. Kahn, '■'■ Bedeutung der Rechtsvergleichting mit Bezug auf das internationak Privatrecht" in Zeitschrift fur internationahs Privat- und Strafrecht, x, p. 99. Meili, Institutionen der vergleichenden RecMswissenschaft. Ein Grundriss (Stuttgart, 1898). I. Though a contrary system prevails in France, the science of Comparative Jurisprudence should not be identified with that of International Private Law. The objects which they pursue are entirely different. The aim of Comparative Jurisprudence, on the one hand, is to determine the following questions : — 1. What is the nature of the legal material at hand? 2. In what manner are the systems of law of the various countries related to each other? 3. Under what general points of view or into what divisions of law may the material be grouped ? The science of Comparative Jurisprudence aims to discover the similarities in the economic and legal bases of the laws of different countries, and labors toward a gradual unification, so far as this is deemed possible and desirable. I have attempted to collate the INTRODUCTION 1 1 material upon this subject in my work upon the "Institutes of Comparative Jurisprudence." International Private Law, on the other hand, deals essentially with differences in the private law of the various countries and the so-called conflicts arising from these differences. It therefore does not involve substantive legal propositions at all, but merely their sphere of application. The greater the success of Comparative Law through unification, the smaller will be the domain of conflict, and the narrower the scope of International Private Law. Both sciences support each other beneficially ; the correct solution of the great controversies of International Private Law can only be accomplished by the comparative study of the foreign systems. Naturally, the more advanced the knowledge of foreign law becomes, the more effec- tively can it be applied to the individual cases. II. It must be recognized that too sharp a separation of the two sciences is in no wise necessary or useful. It is rather more methodical than practical not to undertake legal comparisons in connection with the conflict of laws. The latter problems can often be understood only by means of concrete illustration. NOTE J. Piccard, in his treatise, " Le droit et sa diversiU nicessaire d'apris les races et les nations'''' (^Journal de droit international, xxviii, p. 417), says: "The mosaic of foreign laws tints the earth like the conventional colors of an atlas, con- stituting what may be called the ' jurisphere.' " He objects to the terra " compara- tive law," and proposes the term "legal criticism" (^" critique juridique''''). § 4. The Establishment of a Universal System of Law. Zitelmann, Die Moglichkeit eines Weltrechts (Vienna, 1888). J. Ofner, Der Grundgedanke des Weltrechts (1889). E. Moulin, UnM de legislation civile en Europe (Paris, 1865). Brocher, Revue de droit international, iii, p. 413. G. Pays, Le contrat international (Paris, 1886). Larroque, De la criation d''un code de droit international et de Vinstitution d''un haul tribunal juge souverain des differends internationaux (Paris, 1875), pp. 125 and 126. Asser, " Droit international privS et droit unifortne " (Revue de droit inter- national, xii, pp. I et seq.). L. Levy, International Law, with Materials for a Code of International Law (London, 1887). Nippold, "Internationale Rechtseinheit auf dent Gebiete des Privatrechfs,'" in Zeitschrift fiir internationales Privat- und Strafrecht, v, pp. 473-492. 12 INTERNATIONAL CIVIL AND COMMERCIAL LAW I. In order to overcome the great theoretical difficulties pre- sented by the modern problems of International Private Law, there has been much discussion concerning the estabUshment of a universal system of private law, or at least of a general European civil law. It is true, that even without mentioning the great historical epoch of the reception of the Roman law in Europe, other examples of the acceptance of foreign law have occurred. Thus in Egypt, French law was adopted ; in Japan, first English, then French, and now German private and pubUc law have been adopted ; in South Africa, Dutch private law as it existed in the last century has been taken as the standard. It must not be for- gotten that the well-known plausible fiction of a Holy Roman Empire existed as an element favorable to the reception of the Roman law in mediaeval Europe, and, so far as concerns the modern precedents just mentioned, one can hardly predicate per- manent creations through the obtrusions of these strange systems. All in all, the idea of a universal system of law is too chimerical and should be abandoned. II. Like propositions of law can develop gradually only in respect of institutions which are genuinely cosmopolitan in nature. But even there, the proper tempo of history must be observed. In branches of law where race characteristics play a part, the estab- lishment of a universal system is out of the question. III. An international unification would seem possible and desirable in the following directions : — 1. in the law of bills ; 2. in commercial law, in respect of shares of stock, checks, and bearer-bonds ; 3. in the law of trademarks and patents ; 4. in railroad law ; 5. in postal, telegraph, and telephone law; 6. in maritime law. No unification can be properly accompUshed without a careful comparison of laws ; from this point of view the periods of con- flict and friction can be looked upon as merely the natural preface to a later unification. The idealistic though comfortable idea of a universal system of law is actually prejudicial to the science, because it causes a reactionary effect through its very extravagance. INTRODUCTION 1 3 IV. The idea of establishing international courts of arbitration for private disputes is equally unfeasible. Doubtless it were both possible and desirable to submit certain debatable questions of International Private Law, generally connected with private in- terests, to an international ordo judiciorum. However, it is injurious to the cause for the apostles of peace to pursue indiscriminately the idea of an international tribunal for all matters, e.g. also for political differences. Here, too, the development of the possible is hindered by mere dreams. It is, on the other hand, not only desirable, but imperative to constitute a court of appeal for the settlement of such differences as concern the interpretation of treaties, particularly those in which real private legal interests are involved. NOTE Upon the present permanent international tribunal (Cour permanent d^arbi- tra^e), ha-v'mg an international ofSce at The Hague, compare : Gareis, "Institutionen des Volkerrechts," an abbreviated text-book of positive public international law in its historical development and present form (2d ed., 1901, p. 222; and appendix, p. 288) ; also F. W. HoUs, " The Peace Conference of The Hague" (1900). § 5. The Hague Conferences and Other Attempts at Codifying a System of International Private Law. I. Private Endeavors Another method of solving the legal difficulties presented in international intercourse is to enact a complete code, designed to point out which law shall be applicable in an international conflict of a private legal character. This procedure recognizes the diver- gence of legislation as an indisputable fact, and seeks to determine what system of law shall control in a given case. Similar attempts have been made in International Public Law by Bluntschli in his work : " Das moderne Vdlkerrecht der christlichen Staaten als Rechtsbuch dargestellt" (3d ed., 1878), and by Pasquale Fiore in "// diritto internazionale codificato e la sua sanzione giuridica" (3d ed., 1901). The following works are the results of the endeavors thus far made by individuals in the field of private law : — I. De Domin-Petruschevecz, "Precis d'un code du droit interna- tional" (Leipzig, 1861), 2d part, Nos. cciii-ccxviii. 14 INTERNATIONAL CIVIL AND COMMERCIAL LAW 2. Dudley Field, "Outlines of an International Code" (New York, 2 vols., 1872). This work has been translated into French by Rolin under the title : " Projet d'un code international," and into Italian by Pierantoni under the title : "Prime linee di un codice iniernazionak." 3. "Draft of an International Code," published by the English Society for the Advancement of the Social Sciences. Bulletin of the Societe de Legislation Comparee (Paris, 1872), i, pp. 24-32 ; iii, pp. 300-304. Important services have been rendered in this line by Dicey in the preparation of a paragraphical combination of the rules of International Private Law prevailing in England ("Digest of the Law of England with Reference to the Conflict of Laws," with notes of American cases by John Bassett Moore). II. Governmental Endeavors r. Some of the nations of Europe have entered into treaty rela- tions separately with one another concerning certain isolated topics of International Private Law and Procedure. We do not now refer to the Hague treaties (see infra). The term "Conventional International Private Law" might well be employed to express the idea of private law based upon public law. 2. The South American nations have, upon two occasions, under- taken complete codifications by treaty. (a) A congress was called at Lima, November 9, 1878, in which the following nations participated : Argentine, Bolivia, Chile, Costa Rica, Ecuador, Peru, and Venezuela. A treaty was elaborated upon International Civil and Criminal Law and Procedure. Confer : — Contuzzi, Diritto internazionale privato (Milan, 1890), pp. 556-558. Neubauer, Goldschmidt's Zeitschrift fur Handehrecht, AT. F., x, pp. 546-583. Meili, Die Kodification des internationalen Civil zmd Handelsrecht, pp. 91-103. {b) A congress met for the same purpose at Montevideo in 1889, in which the following nations participated : Argentine, Bolivia, Brazil, Chile, Paraguay, Peru, and Uruguay. It elaborated separate treaties upon each of the following topics : — {aa) international civil law ; {bb) international commercial law ; (« instrumeniorum editione^'' Nos. 15 and 16 (form of wills). lib. 2, fart, iii, § 5 : " Z?« sententia et de his qua ipsam sequuntur^'' No. 2 (contracts). lib. 1, part, i, Nos. 5-1 1 : '■^ De constitutionibus .'''' Jacobus Buttrigarius. A teacher of Bartolus; born 1274; died 1348. Gulielmus de Cuneo (Cuneaux). A contemporary of Cinus (Savigny, vi, P- 34)- Joannes Andreae. Died 1348. Compare Savigny, vi, pp. 98-125. He wrote, among other things, additions to the " Speculum." See Schulte, " Die Geschichte der Quellen," i, p. 20 ; ii, pp. 205-229. His contemporaries called him "fans et tuba juris'''' (Schulte, ii, p. 210). Petrus a Bella Pertica. Died 1308. A pupil of Jacobus a Ravenna and author of " Repetitiones in aliquot divi Justiniani imperatoris leges.'''' Cinus (not Cynus : Savigny, vi, p. 73). Born at Pistoja, 1270; died 1336. Bartolus was his pupil (Savigny, vi, p. 142). Compare L. Chiapelli, ^'■Vita e opere giuridiche di Cino da Pistoja con molii documenti inediti" (1881). Albericus de Rosate or de Rosciate Bergomensis (f 1354). A lawyer who, among other things, wrote a commentary to the codex and an opus statutorum. This tract, if I judge correctly, is the first to free itself from the lex i,C.de summa trinitate. There are four main categories specially treated by Rosate : I. Testa- mentary Questions ; II. Contracts ; III. Succession ; IV. Criminal Law. They are published in the work " Tractatus illustrium . . . de stat. et consuet. et priv., tomus secundus" (Venice, 1584). The treatise has the title " Alberici a Rosate. J. C. clariss. comment, de statutis libri iv" See /. ii, pp. 2-85. Joannes Faber (f about 1340). He (" ego dictus fid Faber, non ferrarius quia libenter operor et facio operari" as he himself explains) was a doctor of laws in Montpellier and afterward a lawyer in Angouleme. Upon Faber, confer : — Savigny, " Geschichte des r'om. Rechts in Mittelalter,'" vi, pp. 40-45. Laind, ^^Introduction au dr. int. privi" 1, pp. 128-130. 5. I have recently discussed at length the doctrines of Bartolus and Baldus in Zeitschrift fiir intertiat. Privat- und Strafrecht, iv, pp. 258, 340, 346. I have also published {id., ix, p. 24) extracts from the " Speculum " of Durantis, from the " Brevarium " of Joannes Faber, and from the work of Albericus de Rosate. The articles have also appeared separately. 6. The formalism for which Bartolus has been reproached so prodigally is largely explained by his desire to fecilitate newer views through reasoning suit- able to the spirit of the time. Compare W. Engelmann, " Die Schuldlehre der Postglossatoren und ihre Fortentwicklung'''' (1895). § 22. Successors of Bartolus. Laind, i, p. 164. The most prominent among the successors of Bartolus were Baldus and Salicet. These two Italian jurists also based their doctrinary discussions upon the law " cunctos poptdos quos." I. Baldus (1327-1400) belonged to the school of Bartolus. HISTORICAL DEVELOPMENT 69 These two " principes juris" exercised an extraordinary influence upon the whole field of jurisprudence, ceasing only with the rising sun of the Dutch school. 1 . To the question whether a minor or person under other disabil- ity can enter into valid transactions in a foreign country, Baldus also answers in the negative. 2. Conflicts in matters of succession are discussed interestingly in Nos. 85 and 86, wherein Baldus considers the case of a baron having castles in France and in Lombardy. He says that if a will were made according to the/wi' commune, all objects would fall to the primogenitus. In case of intestacy, however, the first- born would have to divide with the other next of kin, in France. 3. Baldus makes a small beginning for the theory of a statutum mixtum (Nos. 59 and 91). II. As to Salicet (i 363-1412): — 1. He supports the opinion of Bartolus that the substantive law applicable to contracts is that of the place where they are made. 2. The rights of a surviving husband to the estate of the wife are referred to the law of the last matrimonial domicile. 3. In matters of succession, Salicet makes the law of the deceased's domicile authoritative for all the property. This he applies to the case of a citizen of Lucca owning certain property in Eng- land and dying while sojourning there. NOTES Among other successors of Bartolus, the following are of importance : — I. In Italy : — 1. Paul de Castre (Paulus de Castro), f 1441. Consilia. 2. Alexander (Alexander Tartagnus or de Tartagnis) 1423-1477. This jurist left a number of legal opinions in which the theory of Bartolus is taken as the basis. He wrote three volumes called " Consilia " (i 595), annotated by Moli- nasus. Comp. Molinseus, ^^ Opera omnia'''' (1681), iii, pp. 879-1018, "notae solemnes.'''' 3. Rochus Curtius. f 1495. II. In France : — 1. Henri Bohic. 1310-1390. Argentraeus calls his compatriot " Boich." Also mentioned by Molinaeus, " Tractatus commerciorum et usurarum'" (1577), p. 8. 2. Gui Pape. f 1487- Compare W. Schaffner, " Gesch. der Rechtsverfas- sung Frankreichs," iii, p. 162. Mentioned in Argentraeus, No. 41. 3. Papon. 1 505-1 590. Compare Loysel's ^'■Institutes coutumiires,'" by Dupin and Laboulaye, i, p. cxii. 4. Masuer. f 1449. " Practica forensis." 70 INTERNATIONAL CIVIL AND COMMERCIAL LAW 5. Chassanasus (Bartholomaeus a Chassenaso, 1480-1541). He wrote " Consuetudines ducatas Burgundia" (Paris, 1552, and Geneva, 1647). Cf. H. Pignot, " B. de Chasseneux, premier commentateur de la Coutume de Bourgogne et president du Parlement de Provence, sa vie et ses auvres " (Paris, 1880). 6. Tiraqueau (Andreas Tiraquellus). 1480-1558. '■^ De legibus connubialibus etjure mariii" (Paris, 1846). See also '^ Opera omnia^'' (1574), i-v (compare Laine, i, p. 251). V. The French Doctrine of the Sixteenth Century § 23. Transplanting the Doctrine to France. Lain^, i, p. 269. The feudal practice of applying the law of the territory to all transactions occurring within it (coutmnes r^elles) doubtless existed in France between the eleventh and fourteenth centuries ; but the mollifying influence of the Italian doctrines made itself felt at least from that time on. I. The rules of Bartolus underwent various changes in the course of the centuries. They must be known in order to under- stand the doctrines of the later jurists. The following maxim was established : — " siatutum territorium non egregitur," or " siatutum territonum non porrigitur ad forenses" or " statutum territorium se non extendit extra territorium siafuentis," or " efficacia statuti ad territorium statuentis restricta est." II. The effect of the rule is that the legislator has power to enact laws having force only within his own territory. But even this proposition was variously interpreted. 1. If we wish to express the thought that the law applicable to landed property is the law of the territory wherein it is situ- ated, we say, "statutum non porrigitur extra territorium" meaning that the native laws do not apply to property elsewhere situated. From the point of view, however, of the owner of property, dealing with it abroad, it was said, " statutum de re porrigitur extra territorium," i.e. local laws regarding property situated within the territory will be recognized also abroad. 2. As to the form of wills, the majority of jurists lay it down that the law of the place of execution shall govern and be recognized everywhere. It is expressed as follows, "statutum HISTORICAL DEVELOPMENT 7 1 disponens de solemnitatibus extendit se extra territorium,^' i.e. valid also as to property located abroad. Others of the same opinion express it, " non porrigitur extra territoriuin statuen- sis." This applies to the case of a testator leaving property by will executed outside of the jurisdiction where the property is situated. III. The theories prevailing in France may be best illustrated by a comparison between two prominent jurists, Argentrseus and Molinaeus, for in them is most clearly embodied the struggle between two great tendencies. § 24. Argentraeus. Lain^, i, p. 311. De la Lande de Calan, " Bertrand d''Argentri, se doctrines juridiques et leur influ- ence'''' (1892). Argentragus (t 1590) was a renowned jurist of Brittany (5n- tannid). He considered the conflict of laws in his " Commentarii" while dealing with Art. 218 of the Coutumes of Brittany. This article presented the question whether the limitation against dispos- ing by will of more than one-third of an estate to other than legal heirs applied also to property lying in other provinces. I. In sharp conflict with Molinaeus, Argentraeus regarded the theory which had developed in Italy as wholly erroneous. The ear- lier authors he denominated as " scholastici scriptores," and says that out of "false principles" arose "still falser consequences." He especially ridicules the discussions of Bartolus in Nos. 16 and 24. Argentraeus attacked these " scriptores scholastici" with spirit, energy, and sarcasm. An historian (he wrote the history of Brit- tany), a jurist, and a legislator, he was a man of definite political convictions, although they were indeed restricted to conditions pre- vailing in Brittany. He resembles the modern states'-rights man who excitedly attacks the broader development of federal power. The horizon of Argentraeus did not extend beyond Brittany ; to its cause he consecrated his life. According to his theory, the laws easily divide into three classes of unequal importance : — I. The laws are regularly to be interpreted as statuta realia or laws of reality. Argentraeus, as the champion of feudalism, thus starts with the proposition that the laws of the territory are binding upon 72 INTERNATIONAL CIVIL AND COMMERCIAL LAW all who enter into legal transactions or undertakings within its boundaries. 2. As an exception, laws are sometimes so bound up in the person as to accompany personality everywhere. We have a case of siatuta personalia, therefore, when relating to the quality or posi- tion of the person. This is the modest concession which Argentrseus makes to the Italian School. 3. There are also statuta mixta. The essential nature of this third class is that they follow the rule and in fact strengthen it. This class is composed of stat- utes dealing with the capacity or incapacity of a person to deal with property within the territory, the principal example being that of a person under age by his personal law, attempting to trans- fer immovables within a territory foreign to his personal law. The territorial law governs in these cases. Argentrasus was not wholly correct in saying that the "scrip- tores scholastici " entirely overlooked the statutum mixtiim, for in the works of Baldus (Nos. 59 and 91) we already find a begin- ning, however modest it may have been. It is true, however, that Argentrseus was the first who attempted to reduce the entire doctrine of the conflict of laws to this threefold division. II. In valuing the doctrines of Argentrseus, it must not be forgotten that they are largely a result of his political views. Molinaeus maintained that the laws throughout the territory ruled by the king were of equal value, while Argentrseus supported the autonomy of the provinces, especially that of Brittany. III. The doctrines of Argentrseus received no approbation in France ; territorial independence was approaching its end, and the reign of Louis XIV was in sight. Even later, the expression " Les contumes sent r^elles" was often employed; but in regard to the status, to the form of legal business, and to the law of succession, the French view came to be the same as the Italian doctrine. The significance of the doctrine of Argentraeus is that it brought the question of international conflict under \hr&e formula and declared all further examination into detail to be useless. Later (from 1727 onward) a return to Argentrseus was made even in France; this was the year in which L. Boullenois pub- lished his book under the title : " Questions sur les dimissions des bietis," in which "question sixiime " dealt with conflicts of law. HISTORICAL DEVELOPMENT 73 The doctrines of Argentrceus, in the course of time, replaced those of Bartolus. They have unfortunately not yet lost all of their influence. After the discussions of Argentrseus became known, the theory of conflict took on an entirely new phase. The Successors of Argentrceus (Lain6, i, pp. 342-388): — R. Choppin, advocate in Paris, 1537-1606: Commentaires sur les coutumes d'Anjou et de Paris; traits des privileges des per- sonnes vivant aux champs ou privileges des rustiques. Cf . Warn- konig and Stein, Franzosische Staats- und Rechtsgeschichte, 2d ed., ii, p. 131. Georges Louet : Recueil d' arrets notables (1602). L. Charondas Le Caron (1536-1617): Responses ou decisions du droit frangais ; m^morables observations dti droit frangais, Pan- dectes ou Digestes. Pierre de I'Hommeau : Maximes gin^rales du droict frangais (1614). Job Bouvot, advocate in Dijon (1558-1636): Commentaire de la Coutume de Bourgogne ; Recueil d' arrists et de notables questions de droit (1623). Julien Brodeau, advocate in Paris (f 1653): Notes on the Recueil d^ arrets of Louet. Claud Henrys, advocate in Forez (1615-1662): Recueil d'arrits (1639). Paul Chaline, advocate: Mithode g^n^rale pour V intelligence des Coutumes de France (1666). This author for the first time in eighty years discussed "regies n^cessaires pour montrer quelle difference il y a entre les dispositions personnelles rdelles et inixtes '' (Lain^, i, p. 360). Jean Marie Ricard, advocate (1622-1678): Traiti des donations entre-vifs et testamentaires ; traiti du don mutuel. Basnage, advocate in Rouen (1615-1695): Commentaire de la Coutume de Normandie (1677). Denis Simon, Bibliothique historique des principaux auteurs du droit civil {i6g2), containing : Dissertation en quels cas les coutumes sont r^elles, personnelles ou mixtes. Philippe de Renusson, advocate in Paris (1632-1699): Traiti de la com.munautd ; traiti du douaire ; traiti du droit de garde noble et bourgeoise (1699). 74 INTERNATIONAL CIVIL AND COMMERCIAL LAW Thaumas de la Thaumassi^re (f 1712): Commentaire de la Coutume de Berry (1701). Barthelemy-Joseph Bretonnier, advocate in Paris (1656-1722): CEuvres de Henry, with Observations. Denis Lebrun, advocate in Paris (f 1708): Traits de la com- inunatu^ ; traits des successions. Eus^be de Lauriere : annotated edition of Loysel's Institutes coutumih'es (1710). NOTES 1 . Argentraeus quotes Bartolus approvingly in No. 26. 2. I have lately discussed the doctrines of Argentraeus and Molinsus in Zeitschrift fur internat. Privat- und Strafrecht, v, pp. 363, 452, 554. Compare Fusinato in Rivista italiana per le scienze giuridiche, xxi, p. 184, and Ortmann in Archiv fur burgerliches Rec/it, xi, p. 189. 3. Rocco, Dell^ uso e antoritd delle leggi (2d ed., i, p. Ixix) speaks in most respectful terms of Argentrsus (and Burgundus) : " // dotissimo d^Argentri e il Burgundo . . han lasciato su la materia regolo luminoso e alle bisogne civil sovente e sotto piii rapporti adattate. § 25. Carolus Molinasus. Laind, i, pp. 223, 257. Brodeau, La vie de Maistre Charles du Molin. Opera omnia (Paris, 1681), pp. 1-60. Molinasus (1500-1566) was both an advocate and professor. His aim was to accomplish a united kingdom of France with a uniform system of law. He was a man of great foresight, of broad views, and an internationalist of modern character. Cum- brous and passionate in style (a certain degree of temper is always a good sign of inward conviction), Molinasus attacked the school of Brittany and supported, in the main, the Italian doctrine. Be- fore the researches of Laind, it was widely believed that Molinaeus was opposed to territoriality in its entirety ; there are, indeed, cer- tain passages in his annotations to Alex. Tartagnus that point this way. His main arguments are to be found at the traditional place, i.e. in the commentary to the law " cunctos populos" and in con- silium 53. In his recapitulation he brings out the following : — I. The forms of legal business must accord to the law of the place where the transaction occurs, whether it be in relation to contracts, judgments, wills, or other documents. II. Up to that time, according to the doctrine of Bartolus, the validity and effect of contracts were determined by the sub- HISTORICAL DEVELOPMENT 75 stantive law of the place where they were made. Molinaeus holds that this rule is much too broad. He emphasizes particularly that the intention of the parties should, in the first instance, be controlling. With this proposition, he placed the problem upon a new foundation. MoUnaeus deduces a tacitus consensus especially in sales and marriage contracts. If, for example, nothing upon the subject is mentioned in the marriage contract, then by reason of a tacitus consensus, the law of that place shall be applicable where the husband was domiciled at the time of making the con- tract. This applies also to property situated abroad. In this way Molinaeus gives an extra-territorial effect to law in certain cases, through the theory of an implied consent of the parties. III. Molinaeus treats separately those laws which do not depend on the will of the parties, i.e. " statutum quod disponit in his quce non pendent a voluntate partium, sed a sola potestate legis." Here his analysis is twofold : — (a) " Semper inspicitur locus ubi res sita est." By this is meant that a thing is governed by the law of the place where it is situated, no matter who the owner may be, unless the statute specially excludes its application to aliens. (3) " Statutum agit in personam et tunc non includit exteros." From this it follows, e.g., that contracts of an alien minor would not be considered valid in France. So also with regard to persons under guardianship in a foreign country. NOTES 1. It is highly interesting to observe the manner in which Molinsus opposes the one-sided emphasis placed upon the lex loci contractus in his " Conclusiones de statutis " (see Zeitschrift fur internat. Privat- und Strafrecht, v, pp. 556 and 557)- 2. Among the leading French jurists who dealt with this topic is also Coquille (1523-1603), an extraordinarily interesting and important figure in French jurisprudence, although his conception of the doctrines of the Italian School and of the interpretations of the statutes is incorrect. He strongly opposes the idea that the conflict of coutumes was an example of realia ; he is not, how- ever, in accord with Bartolus. He claims that the nature of statutory provisions must be kept in mind, and while he does not follow the division of statuta perso- nalia and realia, he agrees that the "spirit^"' of this classification should be considered. He wrote " Coutumes de Nivernois," (Euvres, 1703. Compare Lain^, i, p. 297; M. Dupin, ^'De la Coutume de Nivernois'''' (1864), Introduction, pp. i et seq. 76 INTERNATIONAL CIVIL AND COMMERCIAL LAW VI. The Doctrines of Belgium and Holland in the Seventeenth Century § 26. The Adoption of the Theories of Argentraeus. Lain^, i, p. 401. The political situation of the Netherlands was just as though specially prepared for the reception of the doctrines of Argen- traeus. The small communities existing there were so jealous of one another that it finally became necessary to promulgate the contumes. This was done through an edict of 1531. Under such conditions, the principles of Argentraeus became extremely wel- come, although certain Netherlanders, such as Nicolas Everhard, 1462-1532, and Petrus Peckius, supported the theories of Bartolus and Baldus. In 161 1, a most significant edict was issued (Laind, i, p. 400) : — " We ordain : that where there is a diversity in respect of testa- mentary dispositions, between the law of the testator's domicile and that of the situation of his property, the laws and usages of the latter place shall govern in regard to the nature of the property, whether it may be disposed of, at what age and with what form and solemnity.'' Based upon this, a will was declared invalid that had been made in Brussels in 16 19, so far as concerned property situated in Milan, because the testator had followed the form prescribed by the law of the place where it was made. After 1634, this edict was inter- preted so as to refer only to forms required in the interior, and not abroad, and to make the form of the place where made, suffice in the latter case. In truth and fact, this amounted to a repeal of an entirely clear, though erroneous, edict. The doctrines of the Dutch School may be briefly recapitulated as follows : — I. The prevailing opinion among the jurists was that the con- flict of laws was a subject to be dealt with by International Public Law ; further, that every local commonwealth was sovereign in law and had no duty imposed upon it to observe foreign law. In this way the remotest conclusions were drawn from the reasoning of Argentraeus, even such as he himself would not have drawn. II. When foreign law w observed, it takes place by reason of HISTORICAL DEVELOPMENT TJ a voluntary acceptance of it upon the basis of international cour- tesy. This is the theory of "comitas" or "courtoisie internationale." Argentraeus was thus outbid in another direction ; whereas he had permitted a small field of questions to remain, by way of excep- tion, subject to the rule of personality, the general rule of territo- riality was now made to apply without exception. III. The Dutch jurists were of the view that the status of a person was fixed by local law. Although the status of minority and majority, as established by the law of an alien's native state, was actually respected in the Netherlands, it was essentially out of a self-interest, finding its expression in the aforementioned doctrine of comitas gentium. In this way the theory of the collisio statutorum degenerated to the rule of territoriality. That which the earliest Italian theory had worked out so laboriously was completely destroyed through the teachings of the Dutch School. § 27. Its Individual Representatives. Laind, i, p. 395. Rolin, i, pp. 72-83. Weiss, iii, p. 31. A closer examination of the great array of Belgian and Dutch jurists who have treated the question of the collisio statutorum reveals that considerable differences exist between them. The basic principles are, however, the same. 1. A very interesting and well- written work is given us by Btirgundus. His tendencies are more feudal than Argentraeus himself, and he goes as far as to say that the form must accord to the law of the locus of an object. This explains the edict of i6n already cited. Burgundus (i 586-1649) wrote a work entitled Ad consuetudines Flandrice aliarumque gentium controversice. 2. Christinasus (i 543-1631) published, Commentaria ac notcB in leges wiunicipales Mechlinien sesund Practicarum qucBstionum rerumque in supremis Belgarum curiis actarum et observat. 3. Christian Rodenburg (Utrecht 1618-1668) wrote, De jure conjugum, preceded by, De jure quod oritur ex statutorum vel consuetudinum diversitate (Utrecht, 1553, and Antwerp, 1676). Compare Laind, ii, pp. 49-52. T?, INTERNATIONAL CIVIL AND COMMERCIAL LAW 4. P. Voet (1619-1677). He wrote: De statutis eorumque con- cursu liber singularis. Compare Edition Z^^ii^m (1700), from p. 53. See also his further works : Mobilium et immobilium natura modo academico et forensi ad evidentiorem juris statutarii intellectiini strictim proposita (Utrecht, 1666), especially chaps, xii, xiii, and xxiii. Compare Lain^ ii, pp. 97, 172, 387. 5. J. Voet (1647-1714, son of the former). He wrote, in Com- mentariics ad Patidectas, vol. i, a treatise : " De statutis " {liber i, tit. iv, pars ii). Compare Lain^, ii, pp. 99, 172, 388. "Jean Voet fut le vrai fondateur de la doc- trine hollandaisey 6. Abraham a Wesel. He wrote, Tractatus de connubiali bonorum societate and Commentarius ad novellas constitutiones Ultrajectinas. 7. Joannes a Sande (t 1638). He published, Decisiones Fri- sicae. Especially important are : — {a) Liber i tit. xii definitio v. (c) Liber iv tit. viii definitio vii. (p) Liber ii tit. vi definitio x. (d) Liber iv tit. i definitio xiv. Compare also Opera omnia juridicia Joannis et Frederici a Sande. 8. Stockmans (1608-1671). He published, Decisiones curicz BrabanticB. See also. Opera omitia. Decisio ix. The Edict of 161 1 mentioned at § 26 supra is here discussed. See also, 1, Ix, cxxi, cxxv, cxxvi, cxl, cli. The Dutch-Belgian jurists above mentioned represent a ten- dency that was wholly fatal to the science of the collisio statutorum ; they all have the same trade-mark of comitas. Nicolas Everhard (" Topica de locis legalibus et Consilia," i et ii) and Petrus Peckius {" De testa^nentis conjugum," e.g. book iii, chap, xvii and book iv, chaps, xxviii-xxxvii) are the only ones who support in part the views of Bartolus (Lain^, i, pp. 396 and 397). The Netherlands school lacked a man of the stamp of Molinaeus. § 28. Ulricas Huber in Particular. Laind, ii, pp. 183-188. A. Weiss, iii, p. 37, Note 4. Ulricus Huber (1636-1694) was of Swiss descent, probably from Zurich. He was the son of Henricus Huber. On November 30, HISTORICAL DEVELOPMENT 79 1657, he was made Professor at Franeker (an old Dutch univer- sity) and was first "professor eloquenticB et histories^' afterward "professor institutionum." Although three times called to the University of Leyden, he declined and remained at Franeker. In 1657 he was made " supremce curies senator" but in 1682 he re- turned to academic work, "ad meas veteres musas," as he says in Oratio i {"Hubert Opera minora Trajecti ad Rkenum," 1746). He then taught "jus civile, jus publicum et jjis statutarium." I. By means of his tria axiomata, Huber placed our topic completely in the field of politics, with International Public Law as its basis. Logic is not offended by these axiomata, but from the point of view of jurisprudence they have the pernicious quality of leading to nothing. Unfortunately there are still many modern jurists who place their doctrines upon the same basis as Huber, and especially is this true of some of the theories prevailing in England and America. It was said for a time, that the Netherlands cleared the way for International Private Law, or in the' words of FoeUx, " les juris- consultes des Pays-Bas ont frayi la route " (" Trait/ du droit interna- tional privd," Paris, 1843, p. 9 ; 4th ed., 1866, i, p. 15). As a matter of fact, the Dutch School lifted International Private Law from the plane of justice to the indefinite and variable standard of comity, a basis that was almost fatal to its development. It caused retro- cession instead of progress. Even to-day we still feel the effects of its erroneous doctrines. It was the jurists of the Netherlands who, through the medium of the doctrine of comity, prepared an ambush against progress in this department of jurisprudence — this alone is the truth and all else a myth. Of course they simply built upon the arguments which Argentraeus laid down with so much energy, and it is to him that we must finally ascribe all the doctrines of this school. II. Ulricus Huber wrote, " Prcslectiones juris romani et hodiemi." In part ii, there is a short treatise entitled : " De conflictu legum diversarum in diversis imperiis." At the very outset, Huber de- clares that the laws of a state have no force outside of the territory, but are good for all persons found within it. This axiom is modi- fied only by the friendly intercourse existing between states and the comitas which they observe ; in consequence, the application of foreign laws is permitted in so far as it is not repugnant to 8o INTERNATIONAL CIVIL AND COMMERCIAL LAW the sovereign power, or the rights of the subjects of the internal state. Notwithstanding these rules, he refers to the laws of the place where a legal transaction was entered into, in order to determine its validity, just as he refers the qualities of persons to the law of their domicile. It is plain that these results cannot be deduced from the principles which he postulates. Legal relations in regard to immovables (e.g: testate and intestate succession, contracts) are referred to the law of the place where the thing is, or the lex rei sites. In the work of this author entitled "Dejure civitatis" etc., there is a paragraph {lib. iii, sec. iv, cap. i) entitled : " De his qua exteri sibi invicem debent" in which the rules {" positiojies ") are formu- lated as follows : — "Prima sit: leges cujusque reipublicce tenent obligantque cunctos eidem i7nperio subjectos nee ultra. " Secunda : pro siibjectis habentur, quicunque in territorio cujus- que civitatis reperiuntur, quamdiu illic commorantur. " Tertia : summce potestates cujusque reipublicce iudulgent sibi tnutuo, ut jura legesque aliarum, in aliarum territoriis effectum habeant, quatenus sine prcBJudicio indulgeniium fieri potest." NOTE In Zeitschrift fur internat. Privat- und Strafrecht (viii, p. 189) I have pub- lished the discussions of Huber in his " Pralectiones " under the title, " A Speci- men of the Dutch School." VII. The Dutch School in Germany § 29. The Statutory Theory in Germany. Riccii, Zuverlassiger Entwurf von Stadtrechten oder Statutis, etc. (Frankfort and Leipzig, 1740). Compare especially p. 21. The division of the statiita into personalia, realia, and mixta found favor in Germany too, although certain jurists recognized it only in part and, as for the rest, ignored it or opposed it. The following propositions were laid down by the Supreme Court of the Empire in the sixteenth century : — I. With reference to the person, the force of the laws is limited to the territory. From this it was concluded that personal capacity to deal with property is governed by the locus of the thing and not by the law of the owner's domicile. HISTORICAL DEVELOPMENT 8 1 II. Rights in property are to be determined solely by the laws of the territory wherein the property is situate. This was em- bodied in the expression, " statuta de rebus non extenduntur ad res extra territorium siias," which applied as well to separate articles of property as to property considered as a unit, pursuant to the Roman conception of "universal possession." Descent in intes- tacy and by will is governed by the law of the territory in which the property lies, and not by that of the deceased's domicile. Movables were sometimes excepted, with the maxim, " mobilia ossibus inhcBrent" III. If the form of a transaction is in accordance with the law of the place where it was concluded, it is to be considered vaUd everywhere : — " statutum disponens circa solemnitatem extendit se extra territo- rium.'' The views stated at I-III remained in force also during the seventeenth century. Thus we again have the theory of real, per- sonal, and mixed laws, though in another form than that supported by Argentraeus. Andreas Gaill (f 1587), in his work, " Practicarum observa- tionum tarn ad processum judiciarum prcesertim imperalis camerce quam causarum decisiones pertinentium libri duo" (Cologne, 1697), distinguishes the cases according to whether the statute provides " de personis" "de rebus" or " de solemnitate actus," respectively. He makes its extra-territorial effect dependent upon this test. The formula of statuta mixta was opposed. It was replaced generally by the solemnitas actus. IV. These doctrines had their effect in positive legislation, especially in the Codex Maximilianus Bavaricus. NOTES The Codex Maximilianus Bavaricus Civilis (1756) in th. I, cap. 2, § 17, is to the followiag effect : — " In the case of a conflict of laws, consideration is first to be given to particu- lar liberties, then to local customs, laws, and ordinances, then to general parlia- mentary provisions, and finally to the common law." In so far as rights, statutes, and customs differ " in loco juridicii^'' " delicti^'' " rei sitce,^ " contractus^ and " domicilii^'' the court in which the matter is to be decided shall refer to and recognize the customary laws of the place where a transaction took place, so far as concerns its form ; in matters " in mere perso- nalibus," the law of the domicile ; and finally " in realibus vel mixiis," the lex rei G 82 INTERNATIONAL CIVIL AND COMMERCIAL LAW sita, without consideration as to wiietlier property be movable or immovable, corporeal or incorporeal. Punishment of crime, however, shall be administered according to the law of the place wherein it was committed. Further, in th. 3, cap. 12, § i : — "... In matters in dispute in intestacy reference is not to be had to the law of the place of the intestate's decease, but to that of the place wherein the prop- erty is situated, except in purely personal claims, in which case, to the law of the deceased's domicile." Similar provisions were contained in the Bavarian Court Rules of 1753 (xiv, § 7, No. 8) and of 1816 (i, No. 3). Besides Gaill, the following also may be mentioned : — 1. J. Mynsinger (f 1588). He wrote, Singularium observationutn imper. Camera. Compare especially Centuria v, observatio xix : consuetudo vel statutum de rebus vel personis disponens an extra territoriutn extendatur ? 2. D. Mevius (f 1670). He wrote besides Decisiones (i and ii) a commen- tary: In jus Liibecense. 3. W. A. Lauterbach (1618-1678). He wrote: Dissertationes academics. Compare to?n. iii : De societate bonorum conjugali, cap. ii, Nos. x-xvii, especially xiii and xiv. 4. Hertius (1652-1710) wrote: — (a) Commentationes de selectis et rarwribus argu?nentis ex jurisprudent ia universali (1737). Sectio iv : De collisu legum positivaruni inter se. (b) Responsa, co?tcilia et decisiones. N. Rocco : DelV uso e autorita delle leggi, 2d ed., i, Ixx, criticises Hertius as follows : — '' JV. Erzio . . . ha segnaie alcune regole idili e tali che comprendono la solu- zione di molti casi singolari. Nientedimeno, ei noti ha che sol gettate le nude e grezze fondamenta delta scienza." Perhaps history will excuse him somewhat in view of the fact that his life was much embittered through having a remarkably quarrelsome wife (E. Landsberg, Geschichte der deutschen Rechtswissenschaft, part 3, p. 38). 5. Hommel: Rhapsodia qucestionum in foro quotidie obvenientium (3d ed., 1769). Observ. 409. 6. Hofacker (1749-1793) : Principia juris civilis romano-germanici (2d ed., 1800), i, §§ 137-143. He supports certain '■'■ regula generates circa collisionem statutorum" and refers to Argentrasus, Burgundus, Rodenburg, Cocceji, Hert, and Meier. 7. Riccii: Zuverl'dssiger Entwurf von Stadtrechten oder Statutis (1740). Compare pp. 315, 325, 437. (a) Laws giving persons a certain character or quality (pp. 520 et seg.). (b) Laws providing a certain form or solemnity for transactions (pp. 528 et seg.). (c) Real statutes or laws in relation to real property (pp. 542 et seg.) . (d) Laws relating to movables (pp. 591 et seg.). 8. Henricus de Cocceji (1644-1719). In point are Z'/j/a^a/zo 54 : "De fun- data in territorio" etc., in his " Exercitationes curiosa''^ (1722), i, pp. 680-746, and Disputatio 56 : " De concursu plurium jurisdictionum,'''' i, p. 747. Disputatio 54 also appeared separately as " Altera editio emendatior et auctior^^ with the author's name appearing as Iconius. This is explained by the custom prevailing ia the seventeenth century, of having one of the students act as " respondent " to a HISTORICAL DEVELOPMENT 83 dissertation (compare Stintzing, Geschichte der deutschen Rechtswissensch., part ii, p. 27, and part i, p. 152). 9. Samuel de Cocceji, son of the former, who published a rdsum^ of his father's work in Jus civile controversum ; cf. lib. ii, tit. i : " De jurisdictione,^'' qucBstio xxiii (Frankfort and Leipzig, 1740). ID. Caspar Ziegler (i 621-1690) : De judicum officio et delictis tractatus mora- lis (4th ed., 1754), Concl. xv, pp. 254-297. 11. J. G. Meier : De statutorutn conflictu eorumque in exteros valore (Giessen, 1715, Diss.), pp. 14, etc. 12. D. Franc. Alef (f 1763). He wrote, Dies academici (Heidelberg, 1753), in which occurs Dissertatio iv : " De diversorum statutorum concursu eorum- que confiictu." He opposes the ordinary statute theory and rests almost entirely on territorial views. He applies the law of the territory to the status and capacity of aliens and to the forms of legal instruments made within the territory (Nos. 28-3 1 ) . In the case of contracts, the laws of the domiciles of the contract- ing parties, as well as the lex loci contractus, must be satisfied upon the question of capacity. VIII. The Dutch School in England and America § 30. Attitude of England and the United States of America. Harrison, m Journal de dr. i., vii, p. 429. Lain^, id., xxiii, p. 484. Story, §§ lo-ii. At the time when Continental Europe possessed an array of varying laws and statutes, England had an almost uniform law through the blending of the Anglo-Saxon and Norman customs. There had arisen in England a " statute law " in contradistinction to the " common law " and complementary to it. But we find in neither body of law rules laid down as to the applicability of the internal law to international disputes. Probably it was always con- sidered applicable, for as late as 1753 a case occurred in which a demand for the application of foreign law was considered as some- thing entirely new and surprising. This was the case of Scrimshire vs. Scrimshire, 2 Haggard's Consistory Reports 407. Foreign law gradually found an introduction through the practice of the ecclesiastical courts and courts of admiralty, a result which was assisted by the fact that many English and Scotch jurists completed their educations in Holland. Another important element was the fact that William III (1650-1702) simultaneously held the positions of king of England and stadtholder of Holland. I. The Dutch School exercised a great influence in England, and, through English authorities, later also in America. As the 84 INTERNATIONAL CIVIL AND COMMERCIAL LAW American author Story (§ io)well says, we have no early theoreti- cal discussions from England. We may add that England never underwent the early Continental European development of the statutory conflict at all. With the growth of the science of Inter- national Private Law, this nation took the doctrines as they had been developed by the Dutch School. Story himself was largely influenced by Ulricus Huber. II. In the Hght of this explanation, we easily understand the following tendencies which are manifested in some respects even to this day : — 1. the emphasis placed upon territorial sovereignty, — territorial law (as distinguished from the law of the domicile) is largely applied in England and the United States ; 2. the acceptance of the maxim of Hugo Grotius : " Qui in loco aliquo contrahit tamquam subditus ietnporarius legibus loci sub- jicitur" (^'JDe jure belli ac pads" book ii, chap, ii, sec. 5, No. 2) ; 3. the support given to the doctrine of comity. It is true, how- ever, that even in England and the United States, modern authors are opposing the unlimited operation of feudal ideas in this department of law. NOTES 1. Story, § 10, "The subject . . . seems to be of very modem growth in that kingdom (England) and can hardly as yet be deemed to be there cultivated as a science, built up and defined with entire accuracy and decision of prin- ciples." Dicey says, p. 726, " English judges, when, about a century and half ago, they were for theyfrj^ time called upon to deal frequently with the conflict of laws . . ." 2. Lain^, in Journal de dr. i., xxiii, p. 486, maintains (and with him Law- rence, Commentaire sur Wheaton, iii, p- 61) that the first case before an English court involving a question of International Private Law took place in 1753. '• The judge who rendered this opinion . . . having to decide which law should be observed in determining the legal age of marriage of two persons marrying in France, decided that it was the French law that governed, as Gaill, a German author of the sixteenth century, said that the form of transactions followed the law of the place where they occur. After the first attempts of this kind, efforts were made by jurists of the United States to found a system, as conflicts of law were becoming numerous there." Lain^ says fiirther (p. 484), "At a period when the multiplicity of statutes or customs were exciting conflicts of law in Europe, especially in Italy, France, Germany, and the Netheriands, for the solution of which an array of rules were growing up, denominated the statutory theory, England, wherein the Anglo-Saxon customs were becoming blended with the Norman, enjoyed a system of laws almost uniform^'' HISTORICAL DEVELOPMENT 85 § 31. The Influence of Feudalism in Modern Times. I. How important Ruber's influence was upon the English system is clearly manifested in the work of Story, in the first edition of which (1834) he lays down the following rules: — 1. Every nation has exclusive sovereignty and jurisdiction within its own territory. All persons and things within the domain are subject thereto. 2. The laws of a nation cannot be made binding upon persons or objects without its domains. 3. The question as to what authority the laws of one country have in another depends entirely upon the disposition of the latter. If both laws are silent upon the question, the court must establish a kind oijus gentium privatum. This is founded upon the con- venience of the nations and is ex comitate and not ex jure. II. The same spirit is manifested in the work of Burge, " Colonial and Foreign Laws generally, and in their Conflict with each other and with the Law of England" (London, 1838). He lays down thirty-one rules, from which I extract the following : — 1. The compelling force of the laws is restricted to the territory of their enactment and to subjects of the state. 2. This subjection applies not only to those domiciled within the territory, but also to every one temporarily sojourning therein, possessing property therein, or who is a party to a suit therein. 3. Through an understanding between the nations and to meet the requirements of intercourse, each state recognizes the force of foreign law, when the rights of its own subjects, or of aliens, are dependent thereon ; 4. never, however, when the application of foreign law prejudices the authority of the state or the interests of its subjects. 5. If a law contains fixed provisions as to persons and things, it is to be considered as a statute real, in case of doubt. NOTES Story admits, in § 10, that the topic of International Private Law has really not been treated at all by English jurists. He intimates, however, that the -writings of the Continental authors are not of really great merit : " Their works abound with theoretical distinctions, which serve little other purpose than to provoke idle discussions, and with metaphysical subtilties which perplex, if they do not confound, the inquirer." But Lain^ well says, in/ourn. de dr. i., xxiii, p. 486 : " The doctrine of Story reproduces exactly that of the Hollander, Huber. It is in reality no more than a paraphrase.''^ 86 INTERNATIONAL CIVIL AND COMMERCIAL LAW IX. The Statutory Problem in Switzerland § 32. A Recapitulation. Leu, Eidgenossiches Stadt und Landrecht, i, pp. 41-44. Rahn, " Uber die Kollission gleichzeitiger Gesetze int Civilrechte, etc.," in Monats- chronik der zurcher. Rechtspflege (1838), xi, pp. 332-335. I. Race law held sway in Switzerland for many centuries. About the eleventh century fiefdom arose, and with it, all law except that of communes and municipalities went out of effect. Terri- toriality prevailed. It must not be understood, however, that all the former tribal laws fell away with the rise of the feudal system ; but here, as elsewhere, the force of tribal law was no longer based upon the conception of race individuality. It rested upon the adoption of some particular system within a certain territory, either by express sanction or as customary law. Authorities are sparse. Even in later times, we have only Leu to refer to. He treats our topic under the title " Zusammenstos- sung der Gesetze" and bases his doctrines more particularly upon those of Cocceji in " De fimdata in territorio alieno jurisdictione." II. Somewhat later, concordats or intercantonal treaties came into effect : — 1. upon relations of guardianship and tutelage as affecting persons domiciled, of date July 15, 1822 (Snell, " Handb. des schweizer. Rechts," i, pp. 231-233) ; 2. upon testamentary capacity and succession, of the same date (Snell, pp. 233-235) ; 3. upon the solemnization of marriage and certificates of consum- mation, of date July 4, 1820 (Snell, pp. 221-223); 4. upon process in divorce, of date July 6, 1821 (Snell, pp. 235-236). All these concordats support the lex originis. They went out of effect in 1891 with the promulgation of the Federal Statute upon Civil Rights of Persons Domiciled and Sojourning {N. & A.). X. Subsequent Influence of Argentr^us in France DURING the Eighteenth Century § 33. The Present Significance of Reality and Personality. Laind, i, p. 413 ; ii, p. 24. The principal French authors of this period are the following : — HISTORICAL DEVELOPMENT 8/ 1. Froland (f 1746), advocate in Paris. He wrote two vol- umes entitled, Mimoires concernans la nature et la quality des statuts, diverses questions mixtes de droit et de coutumes et la plu- part des arrets qui les ont d^ciddes. 2. L. BouUenois (1680-1762). He wrote : — (a) Questions sur les demissions de Mens (1727). Question sixieme, pp. 81-168. (p) Traite de la personnalite et de la realite des lois coutumes ou status par forme d^ observations. 3. Bouhier (1673-1746). He wrote two volumes entitled, Les coutumes du duch^ de Bourgogne (1742). I. The doctrines of Froland, BouUenois, and Bouhier rest upon the following propositions : — 1. The laws may be classified into statuts reels and statuts personnels. 2. The reality of the laws is the prevailing rule ; the personality of certain laws is, however, not a mere exception. 3. Real laws are the result of feudal coutumes ; the personality of certain laws is demanded in the interest of justice. In this way French authors came to designate as personal such laws as Argentraeus had considered real. They were influ- enced by two ideas, viz. : — {<£) that there are certain laws which are intended to apply only within the local state; (B) that the various states owe it to themselves to grant concessions to one another in the application of private law. Thus a part of the Italian and a part of the Dutch doctrine were adopted in France. The result was a reduction in the num- ber of statutes interpreted as real. In discussion of detail, Froland enunciates the maxim, "man is more noble than property, which, in fact, was created for him alone." This was just the contrary of Burgundus's theory. It was intended to destroy the rule, " les coutumes sont rdelles." In addition to the authors mentioned, the following are also of importance : — (a) Pothier : Traite de la communaute. In " article preliminaire," many of the views of Argentraeus and Molinseus are indorsed. Pothier still exercises great influence in the jurisprudence of Lower Canada relating to our topic. 88 INTERNATIONAL CIVIL AND COMMERCIAL LAW {b) Aguesseau, Chancellor of France : CEuvres (ed. Pardessus), v, pp. 256-258, 260-262; xii, p. 399. {c) Merlin : Repertoire (cited in Mailher de Chassat, pp. 32-33). II. These authors also adopt Argentrasus's classification of the laws into real and personal, though there are minor disputes among them individually. Bartolus is still referred to : on the one hand, to ridicule him on account of his questionable formula in regard to succession ; on the other, to emphasize the necessity for new theo- ries. Froland especially was convinced that the conflict of laws had not received adequate treatment as yet. All in all it was the spirit of Argentraeus which celebrated a belated triumph in France, though his doctrines had become modified in the lapse of time. The statutory theory had entered a 7iew phase. III. The French Civil Code reflects the influence of this period in Art. 3, which provides : — " Laws of police and public order are binding upon all persons within the territory. " Immovables, even though possessed by aliens, are governed by French law. " Laws relating to the status and capacity of persons apply to French persons, even though in a foreign country." XI. Doctrines of the Nineteenth Century The Old and the New Rules § 34. The Statutory Theory in Germany. Gluck, Pandekten (2d ed., 1787), i, pp. 398-403. Wening-Ingenheim, Lehrbiuh des gemeinen Civilrechts (4th ed., 1831), ii, §§ 22-24. Thibaut, System des Pandektenrechts (8th ed., 1834), i, § 38. Miihlenbruch, Lehrbuch des Pandektenrechts (1835), §§ 7^ and 73. Vangerow, Pandekten, i, § 27. Keller, Pandekten, § 12. Kierulff, Theorie des gemeinen Civilrechtes (1839), i' PP- 73-82. Eichhorn, Einleitung in das deutsche Privatrecht (3d ed., 1829), §§ 34-37. Mittermaier, Grundsatze des gemeinen deutschen Privatrechts (7th ed.), i, §§ 30-33- Hillebrand, Lehrbuch des deutschen Privatrechts (1849), § 13. Walter, System des deutschen Privatrechts (1855), §§ 39-Si' I. The Old Rules In Germany the view was maintained that the threefold classi- fication of the laws had become customary law. This idea was HISTORICAL DEVELOPMENT 89 supported especially in the works of Thibaut and Kierulff. Among authors individually, however, there was considerable disagreement in the practical application of this formula. Thibaut {^' Pandektenrecht" i, § 38) lays down the following rules " in conformity with practice " : — 1. The status of a person is in all legal matters to be referred to the laws of that forum before which he is regularly to be cited {statutis personalibus), and must be judged accordingly also abroad, unless the personal statute of the foreign state places him under a disability. 2. Statuta mixta are applicable as to the form of procedure, the form and validity of a legal transaction, or the determination of its effects ; also to penal oifences. That is to say, the laws of that place are applicable where the action is to be prosecuted, the transaction completed, or the offence committed. To this Thibaut adds, that a transaction otherwise valid according to the statutis mixtis, will be held invalid in the forum of the domicile, if conducted in fraud of the native law. 3. If the laws of a place wherein immovable property is situated make any provision in respect of things generally, such laws {statuta realia) will be applicable to that kind of property. As to movable things, personal laws apply, unless the laws of the place where they are situated are expressly made applicable to them. Kierulff (" Theorie des gemeinen Civilrechts," i, pp. 73-82) also relies upon practice in laying down that the court must determine whether the law to be applied concerns a person, a transaction, or a thing. This test will point out the concrete system of law applicable. 1. If the case concerns a person, the laws of that place are appli- cable in which the person is generally subject to jurisdiction, i.e. regularly the law of the domicile {statuta personalia). 2. If the case concerns a thing, the laws of that place are applicable wherein it lies {statuta realia). 3. If the prevaiUng incident of a case is a transaction, or expression of the will, the laws of that place are appUcable wherein it was completed {statuta mixta). As is manifest from the extracts cited, the question of the application of the laws is made to depend upon the forum. Each author gives the topic a slightly different coloring. It is, however, unnecessary to go into details. We need only remark 90 INTERNATIONAL CIVIL AND COMMERCIAL LAW that the doctrine as thus taught was taken over into the Prussian State Law {Landrecht), in force until 1900. R. Leschinsky {" Grimdriss des preussichen Privatrechts" 1896, i, p. 31) defines the threefold classification as follows : — Personal statutes are those laws which provide principally upon the rights of persons as such. Real statutes are those laws which treat of immovables. The conception of statuta mixta is a varying one. According to one view, it embraces those laws which apply to transactions ; according to another, those which regulate the relations of persons to things. 2. The New Rules 1. Schaffner {^' Entwicklung des internationalen Privatrechts" 1 841) advances the following as the basic principle: — " Every legal transaction is to be judged according to the law of the place where it came into existence." 2. Schmid (" Die Herrschaft der Gesetze, nach ihren rdumlichen und zeitlichen Grensen," 1863) lays down the following (p. 28): — "The appKcation of foreign law can be considered justifiable only when : — {a) it is necessary for the maintenance of international inter- course between private persons, and (b) no disturbance is caused thereby to public order, so as to injure legal interests of a higher nature than those of inter- national intercourse." This formula is a weak imitation of the doctrines of the Dutch School. 3. The Modem Spirit § 35. Various Doctrinary Systems of the New Theory. Wachter, Civ. Archiv (1841 and 1842), xxiv, pp. 230-311 ; xxv, pp. 1-60, 161- 200, 361-419. Thol, Einleitung in das deutsche Privatrecht (iSji), pp. 168-190. Savigny, System (1849), ^ii'i PP- '^i et seq. I. The writings of Wackier are of particular importance because they bring out sharply the uncertain and divergent conclusions of the statutory theory. So far as concerns positive results, the rules supported by Wachter may be stated as follows : — HISTORICAL DEVELOPMENT 91 1. It is the duty of the court to determine whether the positive law of its own country does not contain an express rule of conflict upon the question. If so, this law is applicable {Civ. Archiv, pp. 239-240, and 261). 2. If no such express rule of conflict is to be found, the court must examine into the spirit and tendency of the laws, especially those of its own country, treating objectively of the situation before it (pp. 261-262) . This elastic formula has recently been reasserted by von Wyss {Zeitschrift fur schweizer, Recht, ii, p. 37). 3. When no certain determination of a question is to be deduced from the spirit, tendency, or significance of a law, the court, when in doubt, must apply the law of the land (p. 265). These rules recur in Wachter's " Pandekten," i, pp. 164- 167. There can be no doubt that the court is bound by the law of the land, especially by its rules of conflict. On the other hand, the second and third rules of Wachter are clearly based upon a mis- conception. If the matter is one of International Private Law, the court must respect the rules of application contained in the law of the land, but it is entirely incorrect to provide that it should apply internal private law to an issue that is foreign. The sub- stantive law which shall be applied to an international dispute is not to be determined through the spirit and tendency of the domestic private law, but through the spirit and tendency of the domestic rules of conflict. Thol says that the court must primarily apply its own laws, — what has been said above also applies to this. As for the rest, this great dogmatist believes that the will of every system of law which could possibly apply should be examined to determine whether they do not yield inter se. In answer it may be said that, as a rule, it is impossible to determine what such a "will" actually is. III. An entirely new formula was advanced by Savigny to the following effect : — The laws of that jurisdiction must be referred to, to which the issue belongs, or is subject, according to its peculiar nature, i.e. wherein it has its seat (viii, pp. 28, 108). This " seat " lies : — 1. at the domicile (for status, succession) ; 2. at the place where immovables are situated; 3. at the place of performance (in contracts). 92 INTERNATIONAL CIVIL AND COMMERCIAL LAW The foundation of Savigny's theory lies in an international common interest {Gemeinschaft) supposed to exist between the nations (p. 27). In connection with this formula Savigny excepts two classes of cases in which foreign law is not to be applied — so that, as to those, each state is completely shut off by itself : — 1. Laws of a strict coercive nature (viii, pp. 34-37, 160-162). In this category belongs, for example, the case of a Turk demand- ing protection for his harem in Europe ; the court of a Christian state would not recognize such a right of protection, because subversive of the principle of monogamy. Further, a law plac- ing a limitation upon the acquirement of land by members of a particular religious faith would apply to alien as well as native members of that faith. 2. Legal institutions of a foreign state, not recognized in the local state and therefore not the basis of a legal claim in such state. In this category would belong slavery, the right of imprisoning servants, the right of the husband to chastise the wife. § 36. Triumph of the New Doctrine. Windscheid, Pandekten, § 34. Gerber, Deutsches Privatrechi, § 32. Unger, System des osterr. P. R., 4th ed., i, p. 162. I. The reasoning of Savigny upon the " seat " of issues was immediately adopted by the most prominent jurists, such as Wind- scheid and von Bar. The Germanists were especially partial to it. Unger accepted it along with both limitations upon the appUcation of foreign law. There were also certain modifications proposed : — 1. By Bornemann, in " Erorterungen im Gebiete des preuss. Reckts" p. 70: — Every issue is to be determined by the laws of that jurisdiction to which, according to its nature, it belongs or is subject. This jurisdiction is to be discovered by referring to the parties, the sub- ject-matter and the transaction with its results, and thus that law determined which is applicable to the relationships intended to be established. 2. By Bohlau, in " Mecklenburgisches Landrecht" (1871), i, p. 430. HISTORICAL DEVELOPMENT 93 II. Savigny's doctrine was also reflected in the provisions of certain codes, as, for example : — 1. the Saxon Civil Code, §§ lo, ii, 19 ; 2. the Code of Private Law of the Canton of Zurich, §§ 1-7 ; 3. the Private Law of Livonia, Esthonia, and Curland (1864), Intro- duction, § XXXV. 4. The Old Tendencies as displayed in the Doctrines of England and America § 37. Territoriality in Modern Times. Putter, Das praktische europaische Fremdenrecht (1845). L. Pfeifer, Das Prinzip des internationalen Privatrechts (1851). I. At every opportunity, the maxim " omnes consuetudines sunt reales" advances again into the foreground. This has proved possi- ble even in Germany, notwithstanding the discussions of Wachter and the refining influence of the doctrines of Savigny. Thus Piitter says that the judge is wholly and without exception bound by the law of the land ; that he would be violating his duty, the laws of the state and public order, were he to judge any issue brought before him by any other law than the local law. Piitter does not even admit that an alien's capacity to act is to be deter- mined by the law of his own country ; on the contrary, the local provisions upon the status are held controlling upon all those resid- ing or transacting business within the domain. Every state must be jealous of its sovereignty. II. Pfeifer outlines the doctrines of Savigny in his treatise and then adds that there is but one suitable rule, viz. : — The judge must apply the law of the land exclusively, to every issue placed before him for decision, without considering subjects or objects, or elements of locality. The writings of Piitter and Pfeifer do not deserve our further attention ; both of them treated in a careless manner a topic that they neither understood nor sought to understand. III. Even as late as 1894, a text-book upon German private law appeared, written by Franken, in which it is said that, in general, the principle of territoriality controls. In view of positive law as existing almost throughout the whole of Continental Europe, the statement will hardly be taken seriously. 94 INTERNATIONAL CIVIL AND COMMERCIAL LAW 5. The New Italian School § 38. Founding of the Doctrine of National Law. Mancini, Diritto internazionah (Naples, 1873). This work contains the address of Mancini at the opening of the Academy of Turin in 185 1 : " Delia nazio- nalita coTne fundamento del diritto delle genti.'''' Id., Revue de dr. i., vii, pp. 329, 348 et seg. ; Journal de dr. i., vi, p. 228. Esperson, // principio di nazionalita applicato alle relazioni civili internazionah (1868). Id; Journal de dr. z., vii, p. 329; viii, p. 206. Lomonaco, Trattato di diritto civile internazionah (Naples, 1874), p. 42. Pasquale Fiore, Diritto int. privato (Florence, 1869), § 23. Catellani, // diritto internazionah, iii, no. 877. I. Mailher de Chassat {"Traill des statuts ou droit int. priv^" 1845) had emphasized the fact that an alien sojourning in France should be treated as to many personal questions " in conformance with the laws of his country," e.g. in regard to his legitimacy or illegitimacy, as to adoption, and in fact generally as to his civil status. But his reasoning was fraught with irreconcilable contra- dictions unnoticed by him. II. A new and deeper foundation for the application of the lex patricB or lex originis in International Private Law was laid by Mancini and his disciples. According to their doctrines, native law should apply in international matters, when specifically native questions are being considered. This occurs in the law of the status, the family, and succession. In the law of contracts, the intentions of the parties should govern, but if the contracting parties are both of the same nation- ality, the lex patrice must apply here also. The Italian School is based upon the view that very many laws are merely coefficients of personality, and as this is determined by nationality, their character should be considered national. Now as personality, thus typified by nationality, should also be respected abroad, a great complex of questions should be referred entirely to the lex patrice. The other category of laws embraces rules of public order ; here of course the alien's right of personality must yield to the social welfare of the internal state ; the provisions of law which accomplish this may properly be interpreted as territorial. III. It is very significant that substantially all the principles of this school were adopted in the Italian Civil Code of 1865 : HISTORICAL DEVELOPMENT 95 Arts. 6-12 contain the rules of International Private Law obtain- ing in Italy. In Italy itself there are still a few opponents to the new theory, as, for instance, Fusinato in "Archivio giurid." xxxiii, pp. 520-613, and Brusa in his notes to Casanova's "Del diritto intemazionale," i, p. 301 et seq. : and ii, pp. 353, 363-366. § 39. Influence of the Italian School. Laurent, i, No. 427. L. Strisower, in Osterr. Gerichtshalle, 1881, Nos. 21-26. I. The Italian School entered upon a triumphant career. 1. Laurent supported the lex patrim with great energy and said that he had reached the same result independently. He says (No. 427) : — " If the laws of the status are personal, it is because they are the product of those thousand and one physical, intellectual, and moral circumstances which constitute nationality; they are personal because they are national; they ought consequently to follow a person everywhere because he carries his nationality with him ; we may say of national laws all those things which the old jurists said of personal status ; they are the marrow of our very bones, they circulate in our veins, since we receive our nationality with the blood which our parents transmit to us." 2. The German Imperial Court (ix, 408), long before the present Civil Code was enacted, said : — " We notice a gradual gravitation toward a higher valuation of the significance of nationality as an ideal test." 3. The 1 8th Congress of the German Jurists passed the following resolution favoring the new doctrine : — " In matters of conflict in International Private Law regarding capacity to have rights and capacity to act, legal relationships of the family and of succession, we take it to be the rule that the law of the domicile has been replaced by the law of the nationality." (See Jaques in Revue de dr. i., xviii, p. 563.) 4. The Institut de droit international supported the doctrine at its session of 1874 held at Geneva. 5. The following proposed legislation also apphes the new prin- ciple : — (a) the code proposed for Belgium by Laurent (MeiU, "Kodi- fikation" p. 19). (i5) the proposed treaty of Lima {" Kodifikation" p. 91). 96 INTERNATIONAL CIVIL AND COMMERCIAL LAW 6. The rule of nationality is supported by the latest German authori- ties {e.g. Regelsberger, " Pandekten," i, p. 167). 7. The new German Civil Code has adopted it. II. The Italian doctrine, though well championed by its gifted supporters, found also sporadic opposition. The following objec- tions were urged against its principle of nationality : — 1. law is not based essentially, or at least not entirely, upon national peculiarities ; indeed the origin of states develops many hetero- geneous elements ; the law of one state has a considerable effect upon that of others ; many rules may be ascribed to accident or the humor of the legislature ; in many instances foreign law is simply copied ; 2. so far as there really are national peculiarities in the law, they do not exist to the same extent as they formerly did in the life of individuals ; 3. the importance of the element of nationality is not as great as the requirements of the society which surrounds the alien. In regard to territorial law applied by way of exception to the rule, it has been said that no proper test can be found whereby to determine when a regulation made by a state shall be con- sidered as territorial. 4. It is claimed that the Italian doctrine mistakes the motives for giving particular effect to laws of a coercive nature and sets up wrong prerequisites for interpreting certain laws to be coercive. Again, assuming that it is the probable will of the parties which determines the standard for the application of the law, it is likely that they would wish to invoke the law of their domicile to govern their respective obhgations, if in fact they would wish to choose any law whatever. XII. At the Present Time § 40. Brief Review. Regelsberger, Pandekten, i, §§ 39-46. Gierke, Deutsches Privatrecht, i, §§ 25 and 26. v. Bar, i, pp. 100-119. Zitelmann, Internationales Privatrecht, i-ii. I. Modern Continental jurists bring the theory of the Italian School sharply into the foreground of their discussions. Oppo- sition to the absolute sway of national private law has not entirely disappeared, however. HISTORICAL DEVELOPMENT 9/ 1. In addition to Fusinato, Brusa, and Strisower, already cited, we may also mention A. Chausse, who, in his article, " Du rdle international du domicil" {Journal de dr. i., xxiv, pp. 5-31), draws attention to the high significance of domiciliary law. 2. I have repeatedly emphasized the fact that the present mad rush in favor of the application of the lex patrice is based upon an exaggeration of the importance of the bond of nationality in modern affairs. I have enlarged upon this point in greater detail than is here possible in my pamphlet, " Der erste euro- paische Staatenkongress ilber int. Pr.-R." (Vienna, 1894), p. 10 ; in my address, " Der internationale Geist in der Jurisprudenz " (Zurich, 1897), p. 27; in my article, " Z^aj Problem des int. Pr.-R." in Osterr. Centralblatt fiir diejur. Praxis, xv, pp. 193- 222 ; in my article, " Uber das histor. Debut der Doctrine des int. Pr.- und Straf-R." in Bohm's Zeitschr., ix, pp. 11-13 ; and in my pamphlet, " Das int. Pr.-R. und die Staatenkonferenzen im Haag" (Zurich, 1900), p. 28. I also expressed this opinion at The Hague (see Actes, 1893, p. 69 ; Actes, 1894, p. 37 ; Actes, 1900, pp. 85-87). II. The doctrines of Savigny have also been widely opposed. 1. Brinz {Pandekten, 2d ed., i, p. 23) states that the formula of this jurist fails to cut away from territoriality, and, in the form of an exception, reduces itself to the insecurity of the " Rule of Bartolus." Further, that it makes every law-book and statute in the world an appendix to the law of the land, or else it causes, in its conception of locality or " seat," an insoluble or arbitrarily soluble problem, because legal issues have no seat, or else sit upon two seats, as in contracts. As for the rest, Brinz believes that the key to the problem lies in the name that has been instinctively or briefly given to the law thus sought for, as for instance, by Puchta ; for, indeed, International (Public) Law has furnished certain general rules and will continue to furnish them. 2. Dernburg Q' Preussisches Privatrecht" i, § 26) calls Savigny's rule fickle and adds : " All attempts to solve these difficulties by one single abstract principle are doomed, from the start, to be in vain. The sure footing they pretend to give to practice is only ostensible." 3. Hartmann {^^Internationale Geldschulden" p. 33) alludes to Savigny's formula upon the " seat " of obligations as a " widely diffused, dark, and mystic presentation of the subject." III. Other systems have been devised. Reference may be made to : — 98 INTERNATIONAL CIVIL AND COMMERCIAL LAW 1. The plan of Fillet, " Essai d'un system general de solution des conflicts des Ids," in Journal de dr. i., xxi, pp. 417, 711 ; xxii, pp. 241, 500, 929; xxiii, p. 5. His clauses seem to me to lack pene- tration and to be unable to overcome the difficulties met with. Fillet really only formulates the problem anew, without furnishing any concrete solution. 2. The plan of Vareilles-Sommi^res in "La synthkse du droit international priv^ " (2 vols. 1897). This author favors a recurrence to the ancient statutory theory, the devotion to which, as displayed in this otherwise very readable book, is most astounding. The whole statutory theory, as we have seen, has gone through many phases and has been thoroughly revised at least three times. It is therefore necessary to point out just what statutory theory is to be adopted. It is precisely Vareilles-Sommi^res who so clearly shows that the threefold classification of the laws was intended to apply to pro- vincial rules and not to the whole body of the law, as it does to- day. And yet this jurist declares that the same classification is applicable to modern legal conditions, and in the main exhaustive ! He refers the whole topic to a few principles. See the recapitu- lation in vol. i, pp. 416 and 417, and vol. ii, pp. 184 and 185. Vareilles-Sommi^res claims (i, pp. 8, 9, 78-97) that all opposi- tion to the statutory theory is unfounded : " This theory is, in our opinion, learned and rational, profound and judicial. At most, one or two amendments are demanded to-day." It seems to me, how- ever, that amendments might more profitably be made to the work of this author. It has been referred to criticisingly by Lain6 in Rev. critique de Ugis. et de jurisprud., xxiii. The essay of Lain6 has also appeared separately under the title, " Consideration sur le droit int. pr. a prop OS d'un livre ricent" (Faris, 1900). 3. The plan of Zitelmann. This jurist seeks recurrence to International Fublic Law in addition to the rules of conflict set up within the states themselves. The rules of International Public Law limit internal legislation. The state can establish regula- tions only so far as its power reaches. Government is expressed in personal and territorial authority, the former being exercised over the subjects of the state, the latter within and over its territory, to movable and immovable things, incorporeal property and all tor- tious transactions. In the law of persons and domestic relations, contracts, torts, and wills and administration, Zitelmann, seemingly HISTORICAL DEVELOPMENT 99 without having it in mind, reaches the result of the Italian School. His conceptions are referred to by Marcusen, in Zeitschrift fur internat. Privat- mid Strafreckt, x, pp. 257-269, and Reuterskiold in Journal de dr. i., xxvi, pp. 462, 654. Compare also my remarks in Zeitschrift fur internat. Privat- und Strafreckt, ix, p. 6, note 12, and V. Bar, in Archiv fUr offentliches Recht, xv, pp. 1-49. Zitelmann suffers by reason of not having studied the earlier authorities ; he also ignores the foreign literature of the subject. The work of Zitelmann represents a sharp, logical composition, the result of deep contemplation ; it is rich in ideas, it contains truly striking passages, and the study of the work is highly instructive. But the starting-point of his doctrines is, in my opinion, untenable, and the importance he gives to International Law is based upon a misconception of its purposes. Dernburg also expresses the thought {"Das biirg. R. des deutschen Reiclies u. Preussens," i, p. 90, note 8) that ingenious as is Zitelmann's theory, it lacks reality. G. Planck (" Das bilrgerliche Gesetzbuch" v, p. 23) states that it is " quite doubtful " whether the tenor of the rules governing inter- national intercourse can be derived from existing International Law, " no matter how interesting Zitelmann's reasoning may be, and no matter how desirable it were that International Public Law should furnish a sufficient basis for International Private Law." 4. The plan of Affolter. The question of the local applica- tion of the laws has been compared to that of their temporal application. This idea has lately been again taken up by Affolter {"Das intertemporale Privatrecht ; das Recht der zeitlich verschie- denen biirgerlichen Rechtsordnungen desselben Gebietes," 1900). He places the two topics in parallel, in that they both represent a category of rules according to which the court, in the decision of civil cases, applies regulations at that moment invalid within its own jurisdiction. But he overlooks that the internal law frequently contains express rules of conflict by which reference is had, partly to foreign and partly to private law. However, I would further wish to warn against this parallel, as the two questions are entirely different. This has been demon- strated by Goppert in his treatise upon the retroactive effect of the laws {Jahrb. fur Dogmatik, N. F. , xxii, p. 69). The regulation of the effect of old as against new laws is entirely a matter of internal concern. Rules of conflict have a wider range in that they operate 100 INTERNATIONAL CIVIL AND COMMERCIAL LAW for and against foreign citizens. The fact that in certain direc- tions it may be said that the laws existing at the time and place of the making of a transaction apply, must not be too strongly relied on. The judicial and legislative views existing upon the two sub- jects are not identical. Furthermore, questions of local and tem- poral conflict may arise at one and the same time (cf. Habicht, " Die Einwirkung des biirg. Gesetzbuches auf zuvorentstandene Rechts- verhdltnisse," 3d ed., 1901, pp. 20, 23). PART TWO INTERNATIONAL CIVIL LAW " The conflict of laws forms the second important and interesting branch of legal study. The mind becomes elevated and expanded by the contemplation of great prin- ciples broadly applied. Human nature, too, presents itself under its most inviting aspect. The very idea that a branch of law has sprung up, from sacrificing the strict and impera- tive right of sovereignty to the accommodation principle of national unity, is in itself a subject of the most gratifying reflection." — T. Walker, " Introduction to American Law" (2d ed., Cincinnati, 1846), pp. 12-13. GENERAL QUESTIONS 1. There are certain questions in International Private Law which may be of practical importance in almost every branch of the subject. Such, for example, are questions affecting the con- ceptions of domicile, nationality; fraud against the internal law, the formalities in which legal transactions are clothed, the limitation of actions. It is therefore to the purpose to deal first with these general questions under a separate division. In this way we avoid treating of them again later, when considering the detail, which would necessitate continual repetition. I will return to these general questions only when necessary to point out deviations from propositions here enunciated. 2. The scientific works which deal with these general questions, as well as with the detail, contain important discussions. I have not found it necessary, however, to cite the various authors spe- cially under each heading. I have considered it wiser to mention monographs, although I refer consistently to the work of von Bar. It is particularly necessary to follow the authorities of all foreign countries. To limit attention to such works as describe only one system of law is wholly unsatisfactory. 102 INTERNATIONAL CIVIL AND COMMERCIAL LAW § 41. The Legal Position of Aliens in Modern Times in Respect of Private Law. Stork, in v. HoltzendorfF's Handbuch des Volkerrechts, ii, p. 592. Pradier-Foddr^, iii, pp. 1235-1237. Weiss, Traits iheoriqiie et pratique de dr. internat. prive, ii: '■'■ Le droit de Vitr anger" (1894). Gianzana, Lo staniero nel diritto civile italiano (1879). Our purpose here is to describe the general position of aliens before the law, without regard to the conflict of laws ; for conflicts can arise only when aliens are accorded the same rights before the law as natives, whether it be in whole or in part. I. The modern law of civilized nations starts with the propo- sition that aliens are as eqtially entitled to the rights of private law as natives. 1. Formerly the following distinction was made : — Indigence = membra regni, regnicives, tiationales,patricBfilii{c.\iu,eas). Forenses (foreigners or aliens). Gluck, Pandekten, i, pp. 287-288, distinguishes : — Subditi personales : — (a) Citizens. (b) Persons residing within the territory. Subditi temporarii. Subditi reales (simply landholders). The distinction which the modern world makes is as follows : — Citizens of the state. Aliens {forenses) domiciled in the internal state. Aliens simply sojourning transitorily in the internal state. 2. Citizenship arises : — id) ex jure soli or loci. Where this theory is adopted, all persons born within the territory are citizens " by right of the soil." This construction is feudalistic. According to the French laws of 1874, 1882, and 1883, every person bom in France, although of foreign parents, is a French citizen unless he takes advantage of the citizenship of his parents and renounces allegiance to France within a year after reaching majority. The Italian Codice civile, Art. 8, provides that the children of an alien born in Italy become Italian citizens, if the parent has resided uninterruptedly in Italy for ten years. The law of Italy, however, admits the right of adults to forswear in favor of other citizenship. INTERNATIONAL CIVIL LAW 103 (6) ex jure sanguinis. According to this theory, citizenship is dependent on relationship and descent. The relation of the individual to the state, according to the modern conception, is regulated essentially by free will. For- swearing allegiance from one state to another is therefore permitted. This is now recognized by statute in England since 1870, and in the United States of America since 1868. Emigration was once prohibited in Prussia, but the federal law of 1870 applying to the whole of Germany has changed this. The Institut de droit international has worked out a set of prin- ciples applicable to emigration. Compare : — (12) Principes recommandes par V Institut de droit international en vue d'un projet de convention et adoptes en seance du \" Sept., 1897 {Annuaire, 1897, xvi, pp. 262-264). (F) Voeux relatifs a la matiere de I' emigration adoptes par I' Institut en seance du \" Sept., 1897 {Annuaire, 1897, xvi, pp. 276-279). 3. The historical process was an endlessly long one, and there were many subjects in regard to which aliens had less rights in private law than natives. Instances of this kind to be found in history are, for example : — («) the former position of aliens in most European countries in matters of succession {droit d'aubaine) ; {S) the right of deduction in succession ; (^) the right of anticipation {droit de prelevemenf). 4. Coming down to present times, the legislation and practice of the different countries of the world have adopted various points of view. (3) Some favor reciprocity. This is the principle adopted, e.g. in Art. 1 1 of the French Code civil, as follows : — "An alien shall enjoy in France the same civil rights as those granted to French persons, by the treaties of the nation to which such alien belongs." If there are no treaties, each case is examined for itself upon the question whether the alien has any claim to certain "droits naturels." The principle of reciprocity is established in a similar manner by the Civil Code of Austria (§ 33), and it is also the rule in Norway and Sweden. I04 INTERNATIONAL CIVIL AND COMMERCIAL LAW (b) In many countries the right to acquire landed property is either denied absolutely or else made dependent upon governmental consent, e.g. : — {aa) Roumania. Art. 7 of the Revised Constitution of 1879 provides as follows : — " Only Roumanians and naturalized Roumanians may acquire rural property." {bb) United States. Statutes discriminating against aliens are still to be found in the legislation of some of the States. ( 2 22. V. Each state has aft equal right to adopt rules of conflict of its own. No state issues rules binding on another, but it has the right to lay down objective propositions according to which aliens within its territory, as well as its own subjects in foreign states, shall be dealt with whenever jurisdiction over the parties or the subject- matter of an action is obtained. On principle, the systems of civil law throughout the world, with their rules of conflict, are to be taken as of equal value, with such exceptions as are presented by countries in which consular jurisdiction prevails. INTERNATIONAL CIVIL LAW 109 VI. Principles existing in a given state upon the retroactive effect of laws apply to all laws and include also the rules of International Private Law. Whether International Private Law is considered as being pub- lic law or as public and private law mixed, the result is the same. The usual principles will determine whether or not a retroactive effect may be given to a statutory rule of conflict. It is, for example, in this sense that Art. i of the German Introductory Law is to be taken, which provides that the rules of conflict contained in the act shall apply only to issues arising since January i, 1900. The only exceptions are Arts. 30 and 31. Confer : — Kahn, " Das Zeitliche Anwendungsgebiet der ortlichen Kollisionsnormen" in Ike- ring's Jahrbiicher, xliii, pp. 299-434. Diena, " De la retroactivity des dispositions legislatives de droit international privi" m. Journal de dr. i., xxvii, pp. 925-940. f § 43. The Principle of Domiciliary Law. Dicey, The Law of Domicile as a Branch of the Law of England (London, 1879) ; translated by Stocquart into French under the title : " Le statut personnel anglais ou la loi du domiciW'' (Paris, 1887-88; vol. ii contains important additions). Lorimer, Institutes of the Law of Nations, i, pp. 436-437. Westlake, pp. 284 et seq. Asser-Cohn, pp. 24 et seq. Bahr, " Wohnsitz und Heimatsrecht" Iherin^s Jahrbiicher., xxi, p. 343. I. The law of the domicile in its applications to International Private Law signifies : — that a certain group of legal questions in international matters is controlled by the law of that country in which the party perma- nently resides. I. The fact that the law of the domicile was so often referred to in feudal times may be ascribed to the circumstance that the domicile largely determined nationality. This identification was not made by the Roman law, nor is it made in modern systems. In the ancient state the identification of a person with a particu- lar community found expression in citizenship. In this way a close connection arose with the municipium which extended the right. Already at the time of Bartolus, the distinction between " sub- diticives" 2iTa.A"forenses" or "advenes" depended upon whether no INTERNATIONAL CIVIL AND COMMERCIAL LAW the law of origin {i.e. of birthplace or parental domicile) or the law of the later actual domicile was considered authoritative. The Codex Juris Bavarici {ly^S, chap, i, § 3) declared that the permanent residence of the father is also to be considered as the domicile of his legitimate children {== forum originis). English authorities still speak of the " domicile of origin," which is the domicile by effect of birth, in contradistinction to that estabhshed by the choice of the party. Westlake says (§ 244), " To every person the law of England attributes at his birth a domicile, which is called that of origin, or the original or native domicile." The expression "domicile d'origine" recurs also in the law relating to diplomatic immunities, as adopted by the Institute of International Law in 1895 {Atinuaire, 1895-96, p. 241, Art. 7). 2. The conception of domicile may vary, however, as the laws of a country usually set up standards for determining the domi- cile of a person differing with each class of rights dealt with. Thus the term " domicile " is used in the following connections : — (a) in public law ; this is the domicile of politics and taxation. It is possible to have a political domicile not recognizable as to civil rights. Thus the German statute preventive of double taxa- tion, of date May 13, 1870, provides : — " A German has a domicile within the meaning of this act, at that place, at which he has a residence under such circumstances, that an intention to retain the same per- manently may be deduced." To the same effect is the wording of the treaty between Ger- many and Austria (1900) for the prevention of double taxation. {b) in private law ; this is the civil domicile, or domicile strictly so called, and is the conception which alone interests us in this treatise. {c) in procedure ; this is the forensic domicile and denotes that a party may sue or be sued at a certain place. Such a domicile may be founded upon a contract ; the domicile of public or private law can never be. In other words, a forensic domicile does not necessarily presuppose residence at a particular place at all. We must be careful not to confuse these conceptions ; they are in no wise identical. It has been repeatedly held that the domi- cile of private law need not be identical with that of pubHc law, especially with the domicile ascribed for purposes of taxation {A. E., INTERNATIONAL CIVIL LAW III xiii, p. 1356). Of course a domicile may, in fact, coincide in all its phases. 3. The conception of domicile in private law has been defined in the various countries, sometimes by legislation and sometimes by theory and practice. It presupposes a legal intention to reside permanently at a place (animus manendi) combined with the actual execution of that intention {facttim). (a) We find statutory definitions in the following countries : — France, by Art. 102, Code civil: — "The domicile of all French persons, so far as concerns the exercise of their civil rights, is at the place of their prin- cipal establishment." Italy, by Art. 16, Codice civile : — "The civil domicile of a person is at the principal seat of his affairs and interests. The residence is at the place at which a person has his principal abode." Switzerland, by Art. 3, N. &' A. : — " The domicile of a person within the meaning of this act is at the place where a person resides with the intention of remaining permanently." The Corpus Juris of Justinian contains a famous poetic pas- sage in L. 7, C. de incolis et ubi quis domicilium habere videtur : — " Ubi quis larem, rerumque ac fortunarum suarum sum- mam constituit, unde rursus non sit discessurus, si nihil avocet, unde cum profectus est peregrinari jam videtur, quo si rediit peregrinari jam destitit." (b) Among the definitions furnished by the authorities, we may cite the following : — Savigny (" System,'' viii, 58) : — " That place is to be regarded as a person's domicile which he has freely chosen for his permanent abode and thus for the centre at once of his legal relations and his business." Story (" Conflict of Laws," § 41) : — " By the term ' domicile,' in its ordinary acceptation, is meant the place where a person lives or has his home. ... In a strict and legal sense, that is properly the domicile of a person where he has his true, fixed, permanent home and principal estab- lishment, and to which, whenever he is absent, he has the intention of returning {animus revertendi)." Wharton ("Conflict of Laws," § 21): — "Domicile is a residence, acquired as a final abode. To constitute it there must be : (1) residence, actual or inchoate ; 112 INTERNATIONAL CIVIL AND COMMERCIAL LAW (2) the non-existence of any intention to make a domicile elsewhere." The following will serve to illustrate the conception of domicile as worked out in concrete cases : — {a) The mere redepositing of passports from one place to another will not suffice to establish a new domicile (German Imp. Ct. XV, 368). Neither will the mere storing of household furniture at a certain place suffice. The Swiss practice is in accord {A. E., xxvi, part i, p. 124). {b) Formal declarations of an intention to change the domicile will not work such change unless actual residence at the new place follows (decision of German Sup. Ct. Comm., cited in Journal, ii, p. 369). There are some French decisions to the same effect cited there. (c) A domicile once established continues until a new one is acquired. This is a presumption that has been sanctioned by statute in certain states {e.g. Switzerland). Dicey has two inferences on the point of domicile : — "Rule 13. A person's presence in a country is presumptive evidence of domicile. " Rule 14. When a person is known to have had a domicile in a given country he is presumed, in absence of proof of a change, to retain such domicile." Art. 3 of jV. (S* A. is to the same effect : — " The domicile of a person, when once established, con- tinues until a new one is acquired." Each case must naturally be examined separately in order to determine whether the person intended to acquire a new domicile. Thus the weight of evidence would be strongly in favor of retaining the old domicile in a case in which a person had been detained at his European birthplace through illness, though in possession of a return ticket purchased before leaving his transoceanic (American) domicile (Swiss Federal Ct, A. E., xxii, p. 986). 5. A domicile may be changed at will. Where a system of legislation supports the law of the domicile in solving a conflict of laws, the law of that place is meant at which the party had his domicile when the transaction was undertaken. 6. There are also domiciles by operation or presumption of law. INTERNATIONAL CIVIL LAW II3 or of a particular statute, which continue as long as the require- ments of the statute or the presumptions of law are satisfied, e.g. : — (a) The wife is domiciled legally at the domicile of the husband, though residing in fact at a different place. Exceptions to this rule are as follows : — (aa) when the wife has been granted a separate domicile by the court ; (dS) when the objective law provides an independent domicile for z.femme separee (French statute of February 6, 1893) ; (According to the rule prevailing in the United States, the wife may acquire a domicile separate from the hus- band's for the express purpose of a divorce, and then eventually acquire an independent naturalization.) {cc) when husband and wife have separated by contract, pro- vided such a contract be recognized by law ; {dd') when, for certain reasons recognized by law, the wife cannot be expected to follow to the domicile of the husband (e.g. to exotic countries) ; {ee) when the husband has no known residence ; {ff) when the husband is known not to have any residence ie.g. a vagabond). {F) Children under parental authority have the same domicile as the person exercising such authority. Cf. H. Taudifere, TraitS de la puissance paternelle (Paris, 1898), p. 344, who says briefly and to the point, ^^ V enfant mineur n^est plus domicilie chez son pire dechu.'''' (c) Adult persons under guardianship are domiciled legally at the place of official control (Art. 4', N. &' A.). 7. A domicile in private law is not established : — (a) by maintenance at a place of correction or at a hospital; it is otherwise where a person is under permanent support ; (3) by attendance at a place of learning, unless the course of study is exceptionally long, e.g. ten years, the limit set by Roman law (Z. 2 C. de incolis, 10, 40). 8. The establishment of a domicile involves a legal transaction of public law. A lunatic is not in a position to acquire a new domicile, as he has no legal will. The mere fact of altering the place of residence is not sufficient to terminate an existing domi- cile and to found a new one {^A. E., xxii, p. 958). 9. Theoretically it is possible for a person to have no domicile 114 INTERNATIONAL CIVIL AND COMMERCIAL LAW whatever. The case seldom occurs, but it can occur, and is men- tioned by Ulpian in L. 2, ad municipal., 50, viz. : — ..." difficile est sine domicilio esse quemquam. Puio autem et hoc procedere posse, si quis domicilio relicto naviget vel iter faciat, qucBrens quo se conferat, atque ubi constituat ; nam hunc puto sine domicilio esse." To this category belong vagabonds (although of no great interest to private or public law), owners of circuses and men- ageries with their employees, and such actors as travel from place to place. 10. A certain pecuHarity of Swiss law may be mentioned here. Art. 5 of the Federal Statute upon Political and Police Guaranties for the Benefit of the Confederation {A. S., iii, p. 33) provides that the political and civil domiciles of members of the Federal Council and of the chancellor remain in those cantons in which they have the rights of citizenship. They remain under that jurisdiction and law so far as their rights as private persons are in question, except in regard to landed property and indirect taxation. By Art. 15 of the Federal Statute upon the Organization of Federal Offices, this provision is made applicable to members of the Federal Court and to chancery officers {N. F., xiii, p. 455). 11. The mere transitory sojourn of an alien in the internal state, or of a local citizen in a foreign territory, does not involve subjection to the private law of that state — excepting under Eng- lish law. English law still retains its feudal basis, and, accordingly, the mere sojourn of an alien in England subjects him, in most re- spects, to its laws. Foreign laws find application in England in comparatively few cases, because the theory prevails that as the state is sovereign also over aliens found within its territory, the application of the internal private law must follow as a necessary corollary. A different rule prevails on the Continent of Europe, where local law is not applied to persons merely sojourning in the local territory, except such laws as are coercive in their nature. II. A whole group of countries have recognized by statute that the law of the domicile is authoritative in detertnining rights and obliga- tions arising from the status of persons. To this group belong : — I. Denmark and Norway (Neumann, Int. Pr. R., p. 37 ; and Lehr, Elements de droit scandinave (1901), Nos. 23-30, pp. 18-20). INTERNATIONAL CIVIL LAW IIS 2. The Austrian Civil Code (in its application to aliens), § 34. The law of an alien's native state is applicable, however, in certain matters, under the condition of reciprocity. 3. Livonia, Esthonia, and Courland (Introduction to the Code of Private Law, iii, tit. xxviii). 4. Argentine (Civil Code, Arts. 6-7). The proposed treaty of Montevideo was also framed on this basis (American Int. Conf., Reps, of Committees, etc., Wash- ington, 1890). III. According to the law of some countries a person may have more than one domicile. In these countries it is possible that in certain matters, a transaction may be subjected to the law of either domicile, if both systems support the principle of domiciliary law, and no grounds exist for uniform application (e.g. in succession). 1. This was the view sustained by Ulpian in L. 6, § 2, R.J^. 50, I ; " Viris prudentibus placuit duobus locis posse aliquem habere domicilium, si utrubique ita se instruxit, tit nan ideominus apud alteros se collocasse videatur." The German Civil Code, § 7, states that a person may have more than one domicile. Art. 3 of the Swiss statute is expressly to the contrary, as is also the law and practice in most other states (see Supplement, infra). A double domicile has been construed to exist, for example : — (a) where a person lives at a foreign country place during the sum- mer and at a home in town in the winter ; {b) where a person conducts a hotel in one country in the summer, and in another country in the winter. 2. Where a person has more than one domicile, the law of that domicile is authoritative at which he actually resides in relation to each particular issue. 3. A multiple forensic domicile may be recognized under cir- cumstances where a double domicile in private law would not be {H. E., Zurich, xiv, p. 266). The codes of civil procedure of many Swiss cantons recognize a multiple forensic domicile. The legal effect of a multiple forensic domicile concerns Inter- national Civil Procedure and therefore will not be discussed at length here. In such cases the plaintiff may select the forum of any domicile, unless the issue is restricted to a particular forum (e.g. the forum rei sitce) or to a special court {e.g. a court of trade or industry). Il6 INTERNATIONAL CIVIL AND COMMERCIAL LAW IV. The following arguments may be advanced in favor of rec- ognizing the domiciliary law as the standard: — 1. The principle of domiciliary law is cosmopolitan in character in that it makes no distinction between native and foreign law. It offers protection to the alien simply because he is a member of society. 2. Under the principle of domiciliary law, the alien is placed upon equal footing with the native without any further discussion or inquiry. 3. The principle of domiciliary law, if universally adopted, would accomplish a clear situation everywhere. The domicile of a person can be deduced from external facts, and therefore may be generally known to every one. This is an element of great advantage to commercial intercourse. On the other hand, the law of the domicile rests fundamentally upon the theory that an ahen, taking up his residence in a foreign state, submits himself to its laws. This is a feudal conception of sovereignty. After clarifying and refining the idea of the state, a complete disregard of foreign law cannot be consistently supported, especially in certain directions where convincing grounds for its application are not difficult to find. It is not altogether correct, either, to say that the domiciliary principle effects a " clear situation." Especially under modern con- ditions, it is often doubtful where a person is domiciled, while, on the other hand, a person's nationality is usually clearly established. An illustration is presented in the case of persons who systematically try to avoid taxation. It is also very difficult to determine, for in- stance, the question of the first matrimonial domicile (in regard to personal property), or the domicile of a testator {eg. when death occurs while travelling, after having terminated his past domicile). It is interesting to note that the Swiss Constitution of 1874 takes a definite attitude in regard to the two principles of domi- ciliary and national law. Art. 46 says : — " In matters of civil law, persons domiciled in Switzerland shall be, as a rule, subject to the law of their domicile. " The federal legislature shall enact the necessary provisions for the application of this proposition." The title of Federal Statute, N. & A., proves it to be in execu- tion of Arts. 46 and 47 of the Constitution. INTERNATIONAL CIVIL LAW II7 V. The law of the domicile is applicable in all countries in the following special cases : — 1. Where a person has two nationalites. 2. Where a person has no nationality. In both these cases it is impossible to apply the lex patricB. In America and England The courts of the several States have shown a tendency to accept the definition of domicile given by Story, cited above : Price V. Price, 156 Pa. St. 617; Hayes v. Hayes, 74 III. 312; Hairston v. Hairston, 27 Miss. 704; Tyler v. Murray, 57 Md. 418; Plant V. Harrison, 36 Misc. (N.Y.) 649. In Dupuy v. Wurtz, 53 N.Y. 556, the court said : — " To effect a change of domicile for the purpose of succession, there must be not only a change of residence, but an intention to abandon the former domicile and acquire another as the sole domi- cile. There must be both residence in the alleged adopted domicile and intention to adopt such place of residence as the sole domicile. Residence alone has no effect per se, though it may be most impor- tant as a ground from which to infer intention. Length of residence will not alone effect the change ; intention alone will not do it ; but the two taken together constitute a change of domicile." In America a domicile once acquired continues not only until it is abandoned, but till another is acquired ("Jacobs on Domi- cile," § 1 14). In this respect it differs from the rule in England, where the domicile of origin reverts at once upon the abandonment of the domicile of choice (Udny v. Udny, L.R. i H. L. Sc. 441). Both rules, however, lead to the result that no one can be without a domicile. In other words, even though a person be in fact home- less, a home will be ascribed to him by way of presumption or fic- tion of law, for the purpose of determining his legal rights (Dupuy V. Wurtz, supra ; Hindman's Appeal, 85 Pa. St. 466 ; Abington v. N. Bridgewater, 23 Pick. 177). Both jurisdictions agree in declining to follow the rule existing in some of the Continental countries, that a person may have more than one domicile for the same purpose at the same time (Dicey, p. 95 ; Desmare v. United States, 93 U.S. 605). This results from the distinction made between "domicile" on the one hand, and Il8 INTERNATIONAL CIVIL AND COMMERCIAL LAW " home " or " residence " on the other. " A person may be domi- ciled in one state and resident of another (Frost v. Bisbin, 19 Wend. 11). His domicile is the place to which he intends eventually to return, and there to remain (/« re Thompson, i Wend. 43), while his residence comprehends no more than a fixed abode for the time being, as contradistinguished from a place of temporary sojourn (/« re Wrigley, 8 Wend. 134)" (Eaves Costume Co. v. Pratt, 22 N.Y. Supp. 74). A person may therefore have two homes, or be entirely homeless, but he can never have more than one domicile, or be in want of one (Desmare v. United States, 93 U.S. 605). In respect to the domicile of persons under disabiUties, such as minority, marriage, insanity, etc., the practice is the same as the Continental rule. England, however, holds closer to the principle that the wife's domicile follows that of the husband. Thus, even though the wife lives apart from the husband, either by agreement or through abandonment, a separate domicile will not be ascribed to her (Dolphin v. Robins, 7 H. L. C. 390, 420; Le Mesurier v. Le Mesurier, 1895, A. C. 517). The rule is the contrary in Amer- ica (White V. White, 1893, 18 R.I. 292; Greene v. Windham, 13 Me. 225). A divorce granted to the wife in one State on the basis of a domicile acquired by the wife, after cause for divorce by the husband's conduct, must be recognized in every other State (Atherton v. Atherton, 1900, 21 U.S. Sup. Ct. Rep. 544). In Massa- chusetts, the wife is permitted an election between the husband's domicile at the time cause for divorce arose and his later domicile (Sewall V. Sewall, 122 Mass. 156). Other States do not permit of this election, but allow the wife to retain the domicile had by the husband when the cause for divorce arose, without reference to the husband's change of domicile (Colvin v. Reed, 55 Pa. 375). In one State, Vermont, a wife is allowed a separate domicile, even though not for the purpose of securing a divorce. The right to acquire a separate domicile for the purpose of divorce is sometimes expressly declared by statute (see § 1768, N.Y. Code of Civ. Proc). A guardian has been held not to have the power of removing the domicile of the ward outside of the country in which he was appointed (Douglas v. Douglas, L. R. 12 Eq. 617, 625 ; Lamar v. Micou, 112 U.S. 452). But if the ward resides with the guardian as a member of his household, and actually removes with him to his new abode, his domicile has been held to change with that of INTERNATIONAL CIVIL LAW II9 the guardian (White v. Howard, 52 Barb. N.Y. 294 ; contra, Daniel V. Hill, 52 Ala. 430). § 44. The Principle of National Law. O. Bahr, cited at head of § 43, supra. Meyer von Schauensee, cited at head of § 43, supra. A. GeoufFre de Lapradelle, De la nationaliU dWigine, droit compari, droit interne, droit international (Paris, 1893). Cogordan, La nationality au point de vu^ des rapports internationaux (2d ed., Paris, 1890). I. National law in its application to International Private Law signifies : — thai a certain group of legal questions in international matters is governed by the law of the state of which the parties are citizens. 1. The national law is that which prevails in the nation to which a person owes allegiance by the rules of public law. The conceptions of native law {lex originis) and national law {lex patrice) do not always coincide, as variances may exist within one and the same nation. This is the case, e.g., in Spain, in Greece with relation to the Ionian Islands, and in many confederated states where sovereignty has been merged. The two terms are often interchanged in practice ; no ambiguity need result, however, as it is manifest that, in case of doubt, the lex originis is intended. 2. This idea is plainly expressed in the Japanese Statute of 1898 {Ho-rei), which provides (Art. 27): — " If a person belong to a state, the law of which varies locally, the law of the locality to which he belongs shall be authoritative." 3. The acquisition of nationality involves an act of public law. The courts, therefore, cannot inquire collaterally into the regu- larity of naturalization. It is a matter which is considered, on the Continent of Europe, as concerning the administrative branch of the government (Blumer-Morel, Bundesstaatsrecht, 3d ed., i, pp. 342, 344; A. E., viii, p. 824). Art. 10 of the German Statute upon the Acquisition and Loss of Federal and State Citizenship provides that the certificate of naturalization estabUshes the rights and duties of citizenship from the moment of delivery. It may be revoked, however, particularly when obtained by fraud (Cahn, '^ Das Reichsgesets Uber die Erwer- bung und Verhcst der Reichs und Staatsangehorigkeit," 2d ed., pp. 83-84, 486-487). The authorization which the Swiss Federal Coun- 120 INTERNATIONAL CIVIL AND COMMERCIAL LAW cil issues differs from the German method of procedure, in that it is only the first legal step leading to the acquisition of citizenship. It becomes effective only when municipal and cantonal citizenship has been acquired (Art. 4, Federal Statute upon the Acquisition and Renunciation of Citizenship). Although a state has no power to annul a foreign act of natu- ralization, the courts may ignore its legal effect, in determining private rights, where it has been obtained by fraud, or for an ulte- rior purpose (v. Bar, I, pp. 216-222). 4. As the national law is frequently the standard for determin- ing civil rights, the courts are compelled to decide the nationality of the parties collaterally. But, as we have stated, they have no power to go behind acts of the administrative authorities. II. A person may possess nationality i?i more than one state at the same tim.e. I. As a matter of history, it is interesting to note that multiple rights of citizenship were recognized in Greece (A. Hug, " Studien aiis dem klassischen Altertum" 1886, i, pp. i et seq.), but not in Rome (Cicero's oration for L. Comelio Balbo, xi. No. 28 ; xiii, No. 31)- Multiple nationality is a conception highly objectionable in theory. Cogordan says {La nationality au point de vue des rapports internationaux, 2d ed., p. 15): "The idea itself of a native land, which presupposes fidelity and attachment, is incompatible with the coexistence of several nationalities in the same individual. In practice, however, positive conflicts of nationality, where two coun- tries claim the same individual as citizen, are a frequent cause of difficulty between states." Multiple nationalities occur in practice under the following circumstances : — {a) where a person at birth satisfies the requirements of several states for the acquisition of citizenship ; ((5) where a person acquires new citizenship in one country without losing the old at the same time. The nations have set up various systems for determining nationality, viz. : — {a) That the place of birth is of no significance in determining nation- ality ; the nationality of descent is retained. This is the basis of the German statute, § 3, and of the Austrian Civil Code, § 28. INTERNATIONAL CIVIL LAW 121 (b) That the place of birth establishes nationality, with the proviso that within a year after maturity the person may choose the nationality of his descent. This is the system followed in France by the law of 1893, and also in Italy (Art. 83 Cod. civ^. (e) That the place of birth establishes nationality. This is the sys- tem of the United States of America, with certain exceptions in favor of children born of American citizens abroad. 2. In the Swiss Statute, N.& A., double nationality is recognized by Art. S ; no such prohibition as in the case of double domicile exists. (See also A. E., xii, p. 512; xv, p. 343; xxi, pp. 9-10; Blumer-Morel, supra, i, p. 336.) In Art. 5, above quoted, two cases are cited : — (a) where a person has rights of citizenship in more than one canton but has had a domicile in only one of them, this will be the canton of origin ; if he has lived successively in several, that of his last domicile is controlling. (F) if he has been domiciled in none of them, the one where he last acquired citizenship is controlling. This is also applicable internationally, by analogy. Compare also Art. 27 of the Japanese law (translated infra). Expatriation is permitted under Swiss law only where a release from the bond of citizenship has been granted by the state. It therefore occurs that persons who have become American citizens are, in Switzerland, held still to retain their Swiss citizenship. {A. E., xxiv, part i, p. 316.) Of course, according to the practice of American officials, this right of citizenship becomes lost where no notice has been given of any intention to return. On the other hand, the Swiss point of view is that citizenship is not lost except with the assent of cantonal officials, even though its renunciation has been followed up by the acquisition of a new citizenship in a foreign country {A. E., xv, p. 343). 3. Japan holds to the same principle. The Japanese Statute of 1898 {Ho-rei^w^Go. the Application of the Laws provides (Art. 27) : — " In case the law of the nationality is authoritative and the person in question is possessed of more than one nationality, the law of that state will be applicable wherein the person last acquired citizenship ; should one of the nationalities be Japanese, however, the latter shall be authoritative." 122 INTERNATIONAL CIVIL AND COMMERCIAL LAW III. There are many systems of legislation which support the principle of national law : — 1. Italy. The Disposizioni have followed it far-reachingly and in detail (Arts. 6, 7, 8, 9) ; 2. France ( Code civil, Art. 3), as well as the practice of the courts ; 3. The Netherlands (Special Stat., Art. 6) ; 4. Sweden (Neumann, p. 37 i Lehr, Elements de droit civil scan- dinave, Nos. 23-30. Also Zeitschrift fiir internat. Privat-und Strafrecht, i, p. 227, note 2) ; 5. Russian Poland (Neumann, j-^/ris;, re 'Po\3.ti&, Journal de dr. i., h 48) ; 6. Spain (Civil Code, Art. 9) ; 7. Portugal (Civil Code, Arts. 24 and 27) ; 8. The German Empire (Art. 7 etc., Introd. Law to Civ. Code); 9. Greece (Law of 1856, Art. 4, anA Journal de dr. i., xxi, p. 592) ; 10. Roumania (Civil Code, Art. 2) ; 11. Mexico (Civil Code, Arts. 10-19) > 12. Montenegro (Property Code of 1888, Arts. 1-9, and 786-800) ; 13. Japan (Special law of 1898, Arts. 3 ei seq.) ; 14. Venezuela (Civil Code, Art. 7) ; 15. The Congo (Law of 1891, § 2). Upon this basis are also the proposed treaty of Lima (Art. 6), and Laurent's draft for a new Belgian code (Arts. 11-12). IV. The Swiss law stands on intermediate ground. In certain matters the lex and forum originis apply in intercantonal matters, and, by way of analogy, also internationally; e.g. Arts. 8 and 92, N. &A. An interesting passage in Savigny (" System," viii, p. 94) comments how rigidly Switzerland has kept to the national prin- ciple. This great jurist considered it as something "remarkable" that in such a small European country a similar legal situation had developed as he had shown to exist in Rome, i.e. an origo separate from the domicilium and with authoritative importance placed on the former. O. Bahr, in his treatise cited at the head of § 43, supra, states that this fact, seemingly so "remarkable" to the great jurist, is easily explained. Bahr claims it to be nothing more than in execu- tion of principles resulting from a completely developed state and municipal citizenship. And Bahr adds that Savigny's reasoning is proof of how so eminent a genius becomes sometimes so involved INTERNATIONAL CIVIL LAW 1 23 in classical studies as to lose the significance of the modern devel- opment of law (p. 376). V. The following arguments may be advanced in favor of rec- ognizing national law as the standard of private rights. 1. It is in keeping with the close relationship of the individual with his native state. It effectuates more completely than any- other system the idea of national unity, which is the basis of the modern state. There is also an ethical foundation for the principle, as the alien should not be subjected to rules which are strange to him and utterly out of harmony with his national and personal characteristics. It is true that too great an accentuation of the idea of nationality in civil law would make international intercourse more difficult and might even threaten a return to the conditions which prevailed under race law. But there are certain relation- ships which should be dealt with uniformly and which should not be made to change with the domicile or sojourn of the party. These standards are variable, whereas that of nationality is permanent. 2. Generally speaking, the domicile is the radiating point of economic life only. Domiciliary law should therefore be restricted to commercial relationships. Questions of personal law, such as capacity to act, marriage, parental authority, should be so regulated as not to be subject to every change of locality. VI. The national law is the authoritative standard for deter- mining the rights of aliens in territories under consular jurisdiction. 1. Art. 4 of the Egyptian Civil Code (see § 9, supra), though it serves as an illustration, is not correctly expressed. It refers the questions which it mentions to the " personal status." This term may be here understood as designating the lex patricB or national law, although, as we shall see, the conceptions are not identical (see § 47, I infra). 2. Aliens of Christian countries living in Turkey, China, Siam, and Persia are, in general, subject to national law. VII. The law of the domicile is applied to the relations of per- sons without nationality. Legally homeless persons are not infrequently found in modern life. To illustrate: Where a German deserter marries a Swiss woman (in England) and then takes domicile in Switzerland, the wife and children are of no nationality. Germany does not recog- nize the marriage |of a deserter, while Switzerland gives to it the usual effect of expatriating the wife. 124 INTERNATIONAL CIVIL AND COMMERCIAL LAW 1. The German Introductory Act, Art. 29, contains the follow- ing provision upon this topic : — " Where the national law is declared authoritative in determining the rights of a person, and the person is found to belong to no state, the law of the state to which the person last belonged shall apply. If the person never belonged to any state, the laws of the state in which he is domiciled or in the absence of domicile, in which he so- journs, or was sojourning at the authoritative time, shall apply." An illustration of w^ant of nationality is presented where a renunciation of citizenship has been made in one state, vwthout acquiring it in another ; also where, in contravention of a statute, a person has failed to protect his right of citizenship by consular matriculation during a period of sojourn in a foreign land (see Note 7, infra). 2. Art. 27 of the Japanese law (Ho-rei') provides : — " For persons without nationality, the law of the domicile serves in place of national law, or if no domicile is known, the law of the place of sojourn." 3. Art. 800 of the Property Code of Montenegro provides : — " Whenever citizenship determines the apphcation of the laws to a legal transaction, and the person in question has lost his former citi- zenship without acquiring a new one, the law of the state of which he was formerly a citizen shall apply, until a new citizenship be acquired." In America and England Nationality may be acquired as a result of the following cir- cumstances, viz., by birth, by descent, by marriage, or by naturali- zation. By birth. At common law any person born within the kingdom became a natural-born subject thereof, provided his parents were not at the time pubHc enemies (Calvin's Case, 160S, 7 Rep. 18 a). This rule remains in force to this day in England. It has been reaffirmed in a different form in the fourteenth amendment of the Constitution of the United States, which provides that " all persons born or naturalized in the United States and subject to the jurisdic- tion thereof, are citizens of the United States and of the States wherein they reside." This provision has been applied to native- born Chinese, although their parents are expressly excluded by INTERNATIONAL CIVIL LAW 125 Statute from naturalization {In re Look Tin Sing, 2i Fed. Rep. 90s ; In re Wong Kim Ark, 71 Fed. Rep. 382). By descent. By § 1993 of the Revised Statutes of the United States, all children born abroad whose fathers were citizens of the United States at the time of their birth are declared citizens ; pro- vided that " citizenship shall not descend to children whose fathers never resided in the United States." The same rights are extended in England to children born in foreign countries, except that the statutes require that the father shall be a natural-bom citizen, and that either the father or the father's father shall have been born • within British dominions (Westlake, 3d ed., pp. 324-326; Dicey, Rule 23). In neither jurisdiction can nationality be inherited through women. In both jurisdictions a system is recognized by which national- ity is acquired by the combined effect of descent and residence. By the United States Revised Statutes, §2172, "the children of persons who have been duly naturalized under any law of the United States . . . being under the age of 2 1 years at the time of naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof " (2 Wharton's Int. Law Dig., § 184). Practically the same rule obtains in England under the Naturalization Act of 1895 (58 and 59 Vict. c. 43), the terms of which, however, are somewhat broader. Residence at any time "during infancy," whether before or after naturaUzation, will suffice. There seems to be still some doubt as to the effect of the American statute on this point (Heisinger's Case, For. Rel. U.S. 1890, p. 301). By marriage. Marriage in no case affects the nationality of the man, but with the woman it has all the judicial effects of naturalization (U.S. Rev. St. § 1994; English Naturalization Act of 1870, § 10). In England, the rule works both for and against British nationality, as the statute says that "a married woman shall be deemed to be a subject of the state of which her husband is, for the time being, a subject " ; but in America it has been held that a native woman who marries an alien in the United States and lives there with him to the time of his death does not become an alien (Comitis v. Parkerson, 56 Fed. Rep. 556). By naturalization. In the United States, the right of naturali- zation is extended " to aliens being free white persons and to aliens 126 INTERNATIONAL CIVIL AND COMMERCIAL LAW of African nativity and to persons of African descent " (Rev. St. § 2169). Under this rule, as was well said by a New York judge, "a Congo negro but five years removed from barbarism can be- come a citizen of the United States, but his more intelligent fellow- men, native born American Indians and of the yellow races other than the Chinese, are denied the privilege" (Danaher J. in In re Po, 7 Misc. Rep. 471). Thus the right of naturalization has been refused to natives of Japan (/« re Yamashita, 1902, 30 Wash. 234) and to those of the Hawaiian Islands {In re Kanaka Nian, 1889, 21 Pac. 993). Citizenship of the United States is separate from citizenship of a State, and the latter does not confer the rights of the former (Boyd V. Thayer, 143 U.S. 135). This is important because most of the States have enacted statutes conferring State citizenship upon non-naturalized foreigners intending to become citizens of the United States (see summary in 15 Alb. L. J. 485). Conversely, a person may become a citizen of the United States without ac- quiring citizenship within a particular State, as, for instance,' in the case of annexation (U.S. v. Cruikshank, 92 U.S. 542 ; Com. v. Clary, 8 Mass. 72). Thus, the annexation of New Mexico caused this effect (De Baca v. U.S., 1901, 36 Ct. of Claims 407), but natives of the islands annexed to the United States as a result of the late war with Spain did not become citizens of the United States by virtue of the treaty of Paris {In re Gonzalez, 1902, 118 Fed. Rep. 941). An ahen, if under no disability, can become a naturalized British subject by compliance with the conditions prescribed by the Naturalization Act of 1870, § 7. Similar to the Continental rule as stated above, a decree or order of naturalization will not be impeached collaterally by the court (State v. Macdonald, 24 Minn. 48). But the government may invalidate it if obtained by fraud (2 Wharton's Int. Law Dig. § 174, a). The right of expatriation, though not recognized at common law, is now accorded in both Jurisdictions (Eng. Nat. Act, 1870, § 6; IS U.S. St. at Large, 223). The latter act declares it "a natural and inherent right of all people." The history of this provision is recounted in an interesting article by Bassett-Moore {Harper's Magazine, January, 1905). Differing from the rule pre- vailing in some countries of Europe, however, neither British nor INTERNATIONAL CIVIL LAW 1 27 American nationality is lost, except by the acquisition of nation- ality in some other country (Eng. Nat. Act, 1870, § 6; Browne v. Dexter, 66 Cal. 39; Comitis v. Parkerson, 56 Fed. Rep. 556). As the law of nationality plays practically no r61e in deter- mining the application of private law in America or in England, it seldom becomes important in private law to inquire of what nationality an alien is possessed. The primary distinction is simply between native subjects and aliens. All those who are not native subjects are aliens (see Dicey, Rule 21, p. 174). The question, therefore, as to whether there are persons without any nationality is not a practical one in these Jurisdictions, though the instances cited by the author would no doubt be recognized as proper cases of this kind by the executive branch of the govern- ment, just as, in fact, cases of double nationality have been so recognized (U.S. Foreign Rel. 1873, vol. iii, 15; In re Steinkauler's Case, 12 Alb. L. J. 23 ; Lawrence Com. sur Wheaton, iii, 208, as to England). The system of law applicable to the legal relationships of American citizens in foreign countries, where the principle of national law controls, is that of the State of domicile. It is true, the federal state alone has the power of conferring political status, but the private or civil status of a person is determined by the particular State to which he is subject, i.e., wherein he is domiciled (see In re Hall, 1901, 61 App. Div. 266, N.Y.). This results not only from our own jurisprudence but also from the doctrines recognized abroad as stated by the author {supra I, i and 2), that it is the law of " origin," or, in other words, of the smaller political unit to which the subject more intimately "belongs" which con- trols, in case the "national" law does not represent a uniform system. It is well to remember in this connection that, by the fourteenth amendment to the Constitution, domicile implies citizen- ship in the State of domicile. NOTES 1. The Institute of International Law has adopted a set of resolutions upon the conflict of laws relating to nationality {Annuaire, xv, 1896, pp. 270-271). 2. Art. 13 of the French Civil Code, as amended by the Law of 1896, pro- vides : " An alien who has been authorized by decree to establish his domicile in France shall have the enjoyment of all civil rights. The effect of the authori- zation shall cease at the expiration of five years, if the alien does not ask to be 128 INTERNATIONAL CIVIL AND COMMERCIAL LAW naturalized, or if his application is rejected. In case of decease before naturali- zation, the authorization and the time of residence following it shall count for the wife and the children who were minors at the time of the decree granting such authorization." 3. Cf Weiss, " D admission d. domicile des Hr angers en France ei la hi du 2b juin i88g stir la nationalite^'' Jour, de dr. /., xxvi, p. 5. 4. A publication has been issued (Berlin, 1898) by order of the police offi- cials of Hamburg, containing the laws of all the European nations upon the acqui- sition and loss of citizenship. Cf. W. Cahn, ^'^ Das Reichsgesetz uber die Erwerbungund Verlust der Reichs- und Staatsangehorigkeii vom 7. Juni iSyo!'' 2d ed., 1896. 5. Certain difficulties are found in determining the system of law applicable to citizens of Bosnia and Herzegovina, as these provinces still belong formally to Turkey. Compare Jivoin Pdritch, in Rev. de dr. i., IV. S., iii, pp. 50, 241, 398. 5. Modern law recognizes other instances of denationalization (^^ Heiniatlo- sigkeit^'' "& heimatlosaV'') besides those mentioned in 1. 17, § i, le poenis 48, 19, " Idem quidam aTroAtSes sunt., hoc est : sine civitate, ut sunt in opus piiblicum per- petuo dati, ei in insulam deportaii, ut ea guidem, quae juris civilis sunt, non habeant, quae vero juris gentirmi sunt, kabeaitt." 7. The German law of 1870, § 21, provides that Germans who remain with- out the territory of the Empire for a space often years uninterruptedly, lose thereby their right of citizenship. The running of the statute may be broken by matricu- lation at the office of a German consulate. Russian citizenship is also lost without further ceremony if a person remains abroad uninterruptedly for ten years without renewing his pass ; in all other events, a governmental authorization is required to effisct expatriation (^Jour. de dr. /., xxvi, pp. 870-871). Compare particularly also Beauchet, '■^Sur les sujets russes naturalises amiricains dans leurs rapports avec la mire patrie,''^ in Jour, de dr. i., xi, pp. 247-250. 8. The German Statute upon Consular Jurisdiction of April 7, 1900, is re- printed in Z. fur Handelsrecht, TV. F., 35, p. 197. 9. The Swiss law of naturalization of 1876 {N. F., ii, p. 510) provides (Art. 5) that Swiss citizens also possessing citizenship in another state have no claim to the rights and protection of Swiss citizenship as long as they reside in such other state. A person born of Swiss parents in France, though not declaring his option to remain Swiss, does not therefore lose his Swiss citizenship ; this is a case of double nationality {A. E., xxi, pp. 9, 10). § 45. Neutral Principles. Meili, "ZPiZj Problem des internationalen PrivatrecJits^^ in Osterreichischen Centralblatt fur die juristische Praxis, xv, pp. 193-222. Id; " Uber das historische Debut der Doctrin des internatiojtalen Privat- und Strafrechts,''^ in Zeitschrift fur internal. Privat- und Strafrecht, ix, pp. 1 1-13. Id., Das internationale Privatrecht und die Staatenkonferenzen im Haag (1900), pp. 26-32. I. The opinion, though widespread, is to my opinion entirely- incorrect, that the conflict of laws can only be properly regulated INTERNATIONAL CIVIL LAW 129 through the acceptance of either the domiciliary or the national principle for application throughout the whole range of Inter- national Private Law. A reconciliation should be accomplished between the two principles in certain directions. Stated more definitely : — We should demarcate those elements, on the one hand, which permit the lawmaker to give effect to the law of the domicile or sojourn, and, on the other hand, those which influence hitfi to pro- mote and effectuate the continuance of that public bond which con- nects the individual with his native state. The scientific task of International Private Law is not to fix juristic landmarks over the field of private law by the acceptance of general rules, but rather to make possible the finding of con- crete solutions for the particular conflicts which arise. In accom- plishing this task, we ought to be able in an unconstrained manner, to succeed in discovering solutions which will represent a sententia media. 1. It really cannot be denied that the unlimited accentuation of domiciliary law is not satisfactory to ideas of complete justice. [Among English jurists we find Dicey, who, though making the doctrine of domicile his special study, maintains that the principle of nationality is the sound principle for future legislation (" On Domicile," p. 362). Sir W. Phillimore has recently expressed views in favor of the principle as to all matters of personal law. Report of 20th Conference of the International Law Association, p. 230. — Trans. "l In this connection I again have in mind questions such as those of status, divorce, succession. It is striking to think that to-day, when domicile can be so easily changed, the system of private law applicable to the rights of a person is often made to depend upon the fact of domicile alone. It thus results that such rights can be placed upon an entirely different basis from day to day. The possibility of making this complete change could very wisely be limited by an international understanding upon the conception of domicile. A rule might, for instance, be established that, for the purposes of determining the application of the laws, a new domicile shall be considered as acquired only when it has continued within a state for as long as is necessary for the acquisi- tion of citizenship. 2. The one-sided accentuation of the importance of national 130 INTERNATIONAL CIVIL AND COMMERCIAL LAW law is no more satisfactory than the complete reliance upon the domiciliary principle. It would certainly be unfavorable to the course of trade if, at every step taken within the local state, individuals presented themselves who were not subject to local law. The result would be especially undesirable in a state in which there were many aliens. Under such a system we might almost say that the unity of the law ceased where it began — a conse- quence most disastrous to the regular administration of the law. Unfortunately the formula of lex patrice exercises upon many jurists an almost hypnotic influence. They expect miracles from it and at all times the correct solutions. But international prob- lems cannot be controlled and regulated in the manner of an automaton, by the touching of a spring. Under these circumstances we should not easily resign the thought of effectuating a compromise. It cannot be said that the two principles are in their nature irreconcilable ; they would not represent a mixture of fire and water. Furthermore, the principles of International Private Law are no more completely controlled by pure logic than are those of the internal law itself. II. The attempt to reconcile the two principles of domiciliary and national law has been made by the Swiss Federal Statute, N.& A. This it has done particularly with regard to : — 1. guardianship. Arts. 14 and 33 (see infra, § 83) ; 2. succession, Art. 222 (see infra, § 134). III. Methods of arriving at a neutral standard. 1. A reconciliation might be attained between the two oppos- ing principles, by providing a term after which aliens domiciled in the internal state shall be subject to domiciliary law. This solution would be like the provision often found in the laws of mediaeval Italy, viz. that a ten years' residence effectuates citizen- ship. Of course I would not wish to go to that extent, but an assimilation of the private law of a state to persons living within it for many years, is by all means required. We might therefore establish the rule that a person domiciled, say for ten years, shall be subject to domiciliary law, unless he has, in solemn manner, declared his express desire to be subject to his national law. 2. Another plan is much more acceptable to me than the first. INTERNATIONAL CIVIL LAW 13 1 It consists in respecting a part of the national and a part of the domiciliary law. There are a mass of persons whose economical and legal relations are permanently wrapped up with foreign countries, and who yet do not wish to break the ethical bonds that connect them with their national state. In these cases it seems inappropriate to apply exclusively the national law. 3. The neutral doctrine initiated by Swiss law should be carried out to its logical conclusions. This is easily possible in the follow- ing directions, viz. : — (a) in the law of persons concerning the status ; (^) in the law of the family concerning : — {aa) marital property ; (M) divorce ; {cc) guardianship ; {c) in the law of succession. IV. A neutral standard has lately been developed which pro- vides that, in certain branches of the law, a right shall not be recognized unless the provisions of two systems unite in recogniz- ing it. This conception has been applied concretely as follows : — 1. by granting divorces to aliens only when there are grounds recognized both by the national and the local law (Hague treaty on divorce, Art. i ; see Appendix II) ; 2. by making the heir liable for an obligation of the deceased, only in case the law of the place where the obligation has its seat and that of the state administering the inheritance are in accord upon this point (see v. Bar, " Lehrbuch^' p. 121) ; 3. by recognizing liability for tort only in case it be recognized both by the law of the place wherein the tortious act occurred and by the local law (see § 128, infra). If we should agree with the view that international relation- ships in these three directions shall be subject to more than one system of law, there is no reason why contemporaneous reference to more than one system should not be made in other matters as well. NOTES I. As a delegate of Switzerland to the Hague International Conferences I frequently seized the opportunity of favoring, as well as demonstrating, the practical possibility of reconciling the lex patria and the lex domicilii. Cf. Actes, 1893, p. 69; 1894, p. 37; 1900, p. 85. I insisted upon it particularly in 132 INTERNATIONAL CIVIL AND COMMERCIAL LAW the law of succession {Actes, igoo, pp. 107, 108, iii, 112). I have also repeatedly tried to develop the idea in scientific treatises and I called attention to it in my address before the American Bar Association at the St. Louis Exposition (1904). 2. I am pleased to be able to admit that Endemann (" Lehrb. des biirg. Rechts," 8th ed., I, p. 84, note 9) has also opposed the partiality shown to the lex patrice. He too refers to the unbounded confusion which would result if each person were treated with reference to his native law in all matters. It is a considerable mis- take to believe that the unconditional application of the lex patrice represents the triumph of a grand and fruitful conception ; the very contrary is true. If the lex patrice were to be made the basis of the modern doctrine, the expression of Agobard cited in the historical sketch {supra, § 17) would in truth be realized. I quoted this sentence at The Hague to point out the danger in its proper light (Actes, 1900, p. 86). § 46. Reference and Re-reference. 'Libhi, Journal de dr. i., xii, p. 5. Bartin, " Theorie du renvoi,'''' in Revue de dr. i., xxx, pp. 129-187; 272-310. These papers have appeared separately under the title : " Etudes de droit in- ternatioiial privp^ (Paris, 1899). Buzzati, II rinvio nel diritto internazionale privato (1898). V. Bar, in Zeiisckrift fiir i?iternat. Privat- und Strafrecht, viii, p. 177. Buzzati, id., p. 449. Kahn, in Ihering's Jakrbucher, N. F., xxiv, p. 366; xl, p. 52. Zitelmann, i, p. 238. Keidel, " De la theorie du renvoi du droit international privi selon le nouveau Code civil allemand^'' '\n Journal de dr. i., xxviii, 1901, p. 82. Fiore, id., xxviii, pp. 424, 681. I. Theoretically speaki7ig, neither "reference" {including "fur- ther reference"^ nor " re-referefice" are proper means of solving international conflicts. I . These terms may be explained as follows : Where the internal law has no direct rule for the solution of a conflict of law and expressly makes its decision dependent upon the rule of conflict of a foreign state, we say that the conflict has been solved by refer- ence. Where the foreign state thus referred to also presents no independent decision of the conflict, but refers again to another system of law, we speak of further reference. By re-reference is meant that case in which the law of the foreign state neither presents an independent solution of its own, nor refers to a further system of law, but in which it refers back again to the law of the internal state and provides that its law (the lex fori) shall be applicable. These methods are not sound, because they really do not solve conflicts at all. The legislature sometimes leaves us in doubt INTERNATIONAL CIVIL LAW 1 33 whether or not any of these methods are intended ; m other words, whether the court of the local state should decide the case in the same manner as the court of the foreign state whose law is referred to would do, if the same conflict arose before it, or whether only the substantive law of the foreign state is to be applied. Assume a case in which the rights of a Dane or of an Englishman residing in Italy are involved. An important pre- liminary question would probably be as to what law. determines his capacity to act (status). The law of Italy declares that the national law applies. But as both England and Denmark hold that the law of the domicile (in England, the place of sojourn in some matters) is applicable, one might think that Italian law should determine, for in applying it, we are doing that very thing which the national law sanctions. But unless a rule of conflict expressly intends these methods, they should not be employed. If foreign law is made applicable to determine a relationship, that law should be applied without con- sidering whether the foreign state, by its own rules of conflict, would apply its own system of private law or not. Of the same opinion are Regelsberger, " Pandekten" i, pp. 164-165 ; Zitelmann, i, p. 243; Catellani, "Del conflitto fra norme di diritto internazionale private" (Venice, 1897), p. 49. 2. The highest courts of France, Germany, and Switzerland have differed upon this question. Compare : German Imperial Court {Reichsgericht), xxiv, p. 326 ; Swiss Federal Court {A. E.), xx, p. 653. In the latter case (1894, Fischl v. Codmann), the court, in determining the capacity of a married woman to act, held that t/ie real will of the legislature (Art. lo. Fed. St. Pers. Cap.) was to apply the national law, without consideration as to whether the national law itself would apply the principle of nationality or territoriality. Wolf {Z. f. schweiz. R., N. F., xv, p. 21) opposes this theory and maintains that by the term "national law" the legislature intended not only the substantive law, but also the national rules of conflict ; that if we shut these out, we no longer apply the will of the foreign state, but a system that it really intended to exclude. This reasoning is not sound, as it is the will of the local state which is authoritative. The weight of authority favors the view taken in the case cited. 134 INTERNATIONAL CIVIL AND COMMERCIAL LAW II. If reference, re-refei'ence, or a similar method of solving conflicts is sanctioned by positive law, it must of course be followed. 1. A reference may be total or partial. 2. The law of Germany recognizes a kind of reference in cer- tain branches of the law. More definitely stated, it makes the application of foreign law in those cases dependent upon certain requisites in the foreign law itself. The German Introductory Act states its rules of conflict in absolute terms, from which it follows that in applying foreign law it is immaterial what rules of conflict the foreign law contains. The foreign substantive law is con- sidered and not the foreign International Private Law. To this, however, certain exceptions have been enacted in Art. 27 in respect of : — {a) capacity to act ; (b') entrance into marriage ; (c) marital property ; {d) divorce ; {e) succession. The question of reference becomes a practical one, however, only where the contest is between the lex patricB and the lex domi- cilii, not where the rule of conflict is drawn from the locus of an object, i.e. where the lex rei sitce or lex loci actus is made applicable (Art. 28). These regulations are very important, especially over against English and American law (see § 7, III, 2, supra; also Goldmann and Lilienthal, "Das biirgerliche Gesetzbuch," 1897, pp. 18-19; A. Nieder, "Das EinfUhrungsgesetz" 1899, PP- 68-71, upon Art. 27). Whether reference is to be made only in the cases mentioned, or whether its use may be still further extended, is a question still in dispute in Germany. 3. The Japanese Statute of 1898 {Ho-rei) upon the Application of the Laws in General, contains the following provision (Art. 29): " In a case in which the native law of a person is authoritative, and such law by its own terms makes the Japanese law authoritative, the latter shall be applied." III. The Institute of International Law terminated its discus- sion upon reference with the almost jinanimous resolution, that in cases of reference the general substantive law and not the rules of conflict should be considered {Annuaire, p. 179). INTERNATIONAL CIVIL LAW 135 The resolution reads as follows : — " Quand la loi cTun Etat regie un conflit de lots en matiere de droit prive il est desirable qu'elle designe la disposition mime qui doit etre appliquee a chaque espece et non la disposition etrangere sur le conflit dont il s'agit." NOTES 1. Laind says (Journal de dr. i., xii, 1885, p. 16) : "The legislature under whose authority the judge having jurisdiction of a matter is placed has the right to determine the law applicable to the cause. When it has designated a foreign system of law for the solution of a question, the judge has no longer to demand the will of the foreign legislature as to what system of law is applicable ; he knows it." 2. In this connection the views of Asser are also well worthy of note : " La question dti renvoi devant la troisihne confer etice de droit int.prive^'' in Revue de dr. i., Deuxihne Serie, ii, pp. 316-319. 3. Dernburg, ^^ Das burg. Recht des Deutschen Reiches und Preussens," i, § 36, p. 97, favors Germany's adoption of "reference." In my pamphlet, "Int. Priv. Recht und die Staatenkottferenzen im Haag^^ pp. 30-31, I pointed out that reference might be adopted in many cases for practical reasons, in view of the divergences existing in the rules of conflict. The methods of reference which have already been adopted by legislation represent a wholesome limitation of the present tendency in Europe to accentuate the lex patrice. § 47. Outlines of the Categories of Law Applicable in Modern International Jurisprudence. I. " Statut personnel" or personal statute. 1. By this term is designated, in the first instance, that system of objective law, authoritative in determining capacity to act, or the capacity to enter into legal relationships. At one time, domi- ciliary law is meant ; at another, national law, — according to which- ever doctrine the lawmaker supports. 2. Frequently the term is employed by way of parallel, to express the idea that a certain legal question {e.g. guardianship or succession) is determined by the same law as that which determines the capacity to act. An incorrect notion has arisen in many quarters, that the same concrete solution as is applied to questions of capacity to act must also be able to decide all questions arising in International Private Law — a view that is untenable. It is wholly impossible to include all the rights and legal "capacities" of a person within his status and thus submit them to the personal statute. This is a remnant 136 INTERNATIONAL CIVIL AND COMMERCIAL LAW of the tendency which existed in the early development of the science, to solve all difficulties by general axioms or classifications such as that of real, personal, and mixed laws. It would be more correct to avoid allusion to this classification altogether, as the institution that called it forth has disappeared from the modern world; but its terminology has become so deeply rooted that all efforts to change it seem to be vain. II. " Statut rhl" or real law. 1. This term is used to express the idea that the local law is appUcable, e.g., because the right in question is in the nature of a property right or right in rem. 2. The term is also employed to designate that group of rules applicable to aliens as well as native citizens because founded on motives of social or public order ; e.g. : — (a) pursuant to the doctrine of the Italian School, although the more usual term is " territoriality " of laws (see infra) ; (V) in the sense of Laurent, ii, Nos. 52, 58, 193, 204; viii. No. 95, wherein he speaks of ^' lots reelles " ; {c) in the sense of Savigny, when he speaks of laws of " streng posi- tiver Natur." III. Territorial law or " statut territorial. ' ' This is another term frequently used in contradistinction to domiciliary and to national law. Like the term "real law," it expresses the idea that certain relations or transactions are judged according to the local law without considering either the domicile or the nationality of the parties in interest, as, for instance : — 1. the rights of aliens in England and America in respect of many relationships ; 2. Art. 7, German Introductory Act ; 3. Art. 103, Swiss Federal Statute upon Personal Capacity to act (Handlungsfdhigkeii) . The term " statute " is employed in connection with these cate- gories only for historical reasons. Statutes as distinguished from laws no longer exist, and it is well to remember that this nomen- clature originated with a system now obsolete. The terms are retained because, through many centuries of use, they have become the currency of speech. INTERNATIONAL CIVIL LAW 1 37 NOTES 1. The term "statut personnel" is still employed in modern codes, e.g., Egyptian Code civil, Art. 4. 2. Aubry, " De la notion de territorialiU en droit international prive!'' Journal de dr. i., xxvii, 1900, p. 689; xxviii, 1901, pp. 253, 643. 3. The term "/oz territoriale" has latterly also been employed in another sense. Vareilles-Sommiferes ("Za synthase du droit int. privi," i, p. 166) says : " For us, territorial law is that which applies only to acts done within the terri- tory. A law is territorial for us when it is binding only on natives, and obliges them to act, or abstain from acting, only within the territory." § 48. Reasons for the Application of Foreign Private Law. I. There is a great disparity in the reasons assigned for the application of foreign private law in certain cases. 1. It is often said that the reason why foreign law is recognized only in certain respects is because sovereignty is called into question by the application of foreign private law. There is considerable error in this conception, and it has led many writers to wrong conclusions. In applying foreign law, a local judge does not violate the sovereignty of his own or of another state ; he is, by virtue of his office as a servant of the internal state, applying that private law which, according to his judgment as based upon the internal rules of conflict, is applicable to the disputed issue before him. The application of foreign law is in no wise dependent upon the judge's preference. In other words, the judge's standard is always the law of the internal state, but that includes also those rules of con- flict which the internal state has provided for international issues. It is true that often very little is expressly provided ; indeed, as a rule, it is fragmentary. But the judge cannot be governed by the internal substantive law, where rules of conflict fail, for this has local and not international relations in view. He must work out the rules of conflict from the theory and practice existing within the state. Internal private law and internal rules of conflict must be distinguished. 2. The duty of the local judge to apply foreign law has been based upon the common weal existing between the nations in legal matters. Compare Savigny, " System,'' viii, pp. 27, 29. The concep- tion has been quite generally adopted. Dernburg, " Pandekten" i, § 45, has the same idea in mind when he says that the mutual recog- nition of the states has led to a mutual recognition of their laws. 138 INTERNATIONAL CIVIL AND COMMERCIAL LAW Among Italian authorities I refer to Catellani, "// diritto inter- nasionale privato e i suoi recenti progressi" (ist ed., No. 51), and his pamphlet, " Del conflitto fra norme di diritto intemazionale pHvato" (Venice, 1897), p. i, wherein he says: "II diritto intemazionale privato, concepito come un sistema ideale di norme, dovrebbe nel suo insieme ed in ogni sua parte corrispondere alia comunitd di diritto vagheggiata dal Savigny." 3. The "comitas gentium," or comity of nations, has been cited as the true ground from Ulricus Huber to the latest times, e.g. Foelix, p. 22; Kent, ii, 454 (614); Story, Nos. 35-38, and even Stobbe, "Deut. Pr. R.," 1st ed., i, § 29 i. This basis is weak and should be abandoned. I refer to the conclusion of the Institut {Annuaire, 1, 124): — " IV. Dans I'etat actuel de la science du droit international, ce serait pousser jusqu'a I'exageration le principe de I'independance et de la souverainete territoriale des nations, que de leur attribuer un droit rigoureux de refuser absolument aux Strangers la reconnais- sance de leurs droits civils, et de meconnattre leur capacite juridique naturelle de les exercer partout. Cette capacite existe independatn- ment de toute stipulation des traites et de toute condition de recipro- cite. D admission des Strangers a la jouissance de ces droits, et Vapplication des lots etrangeres aux rapports de droit qui en dependent, ne pourraient etre la consequence d'une simple courtoisie et bienseance (comitas gentium), mats la reconnaissance et le respect de ces droits de la part de tous les Etats doivent etre eonsideres comme un devoir de justice Internationale. Ce devoir ne cesse d'exister, que si les droits de I'etranger et r application des lots etrangeres sont incompatibles avec les institutions politiques du territoire regi par P autre souverainete, ou avec I'ordre public tel qu'il y est reconnu." We must definitely lay aside the theory of comitas gentium. Lorimerwell says ("Institutes of the Law of Nations," i, 357), "Pri- vate international relations are relations of right on the one hand and duty on the other," and he alludes to the doctrine of comitas as "the old woman's fable." 4. Von Bulmerincq {"Das Volkerrecht" in the Handbook of Marquardsen, p. 208) says that there is a duty among the states to make mutual concessions. He adds that these are not to be conceived of as favors, but as in performance of a duty toward members of an international commonwealth ; that a legal right to them exists mutually. INTERNATIONAL CIVIL LAW 1 39 II. Foreign civil rules of law are applied because justice demands it in certain cases. To international issues, that system of private law must be applied to which they are subject ; this may be local law, but it may also be foreign. As soon as a foreign state is recognized as such by the local state, it must be considered as a member of the family of nations by right of public law (Mohammedan countries occupy a special position by treaty). From this follows the right of its subjects to enter into legal relationships with the subjects of the local state, and to demand that the system of private law be applied which is appropriate within these territories by reason of their rules of conflict. It is clear that to private relations, only a rule of private law should be applicable. The native judge does not apply foreign substantive law because of the statutory orders of the foreign state. Legislative authority in each state is limited by the geographical boundaries of that state. But the native state says to its judge that he must apply the correct system of private law, and with this command, external as well as internal civil law may be indi- cated. The Code of Private Law of the Canton of Zurich (§1) correctly states that internal law is apphcable to natives and aUens unless, by reason of the peculiar nature of an issue, the application of foreign law within the local territory or the extension of local law to foreign territory is demanded. By virtue of this brief premise of the local law, issues are referred to the lex domicilii, or lex patri<2, or lex loci contractus, or any other lex appropriate to the same. To speak of the "nos- trification" of foreign private law is wholly incorrect; this figure does not enlighten the matter, it obscures it. All systems of civil law are, upon principle (with the reservation made), of equal value, and the lex fori has in itself not the slightest right of priority to be applied to a disputed issue of law. The duty of the internal judge to apply foreign civil law when the rules of conflict subject the issue to it, is, as Rivier well says, an ^'obligation juridique," with which Wharton (§ i et seq.) also is in complete accord. Gierke {"Deutsches Privatrecht," p. 212) brings out the correct idea in that he says : — "Foreign law is law. It is as much law as native law, and therefore applicable by our courts whenever an issue is subject 140 INTERNATIONAL CIVIL AND COMMERCIAL LAW thereto. This is the first principle of modern International Private Law. It is the real ground for applying foreign law, and is founded upon the demands of justice which each state must satisfy in perform- ing its functions, not, however, in the mere mutual courtesy of nations {comitas gentium) according to an old theory that has not yet com- pletely died out. The application of foreign law results, when appropriate, by virtue of a general rule, not, as some think, by virtue of an exception to the rule. Especially untenable is the view that there is a presumption in favor of the exclusive application of native law." It is an entirely independent question whether the internal judge may or must compel the parties to prove the existence and meaning of foreign rules of law. This must be specially treated of under the head of International Civil Procedure. Here it suffices to say that the internal judge may issue a decree compelling proof of law (in the manner of Continental practice). As we are here dealing with a question of law, it follows that the term of proof (Continental practice) is not peremptory, and, further, that an admission is not binding upon the party. A noteworthy proposal covering this question was laid before the Hague International Conference of 1900 by the Austrian delegate Schuhmacher. The proposal was entitled : " Dispositions concemant la dilivrance de certificats sur la legislation en vigiieiir dans un Etat " {Actes de la troisihne Confh'ence, 1900, p. 60). A committee considered the proposal and submitted amendments {Actes, pp. 205-206). The conference then entered upon a brief preliminary argument and decided to cover the question for the time being by a resolution {Protocole final, Actes, 1900, p. 246). Of course the internal state may, by legislative command, insist that internal law be always applied, and never foreign law. Such a perverse rule has almost never been laid down, and even nations are under the control of ridicule. A state which adopted such measures would be acting against the fundamental principles of international law, and would be ignoring its own interests. The legal basis of International Private Law, notwithstanding opposition in certain quarters, is therefore the conception so beauti- fully and well expressed by Savigny — the community of interest existing between the states in the administration of the law {Reckts- gemeinsckaft). Of course, this conception requires concrete appli- cation and detailed development. INTERNATIONAL CIVIL LAW 141 III. The doctrine prevailing in England and America still rests upon a wholly antiquated foundation. Indications are multiplying that even in England the feudalistic point of view is losing ground. A convincing proof of the rise of a new scientific tendency is furnished by the work of Dicey. In view of English conservatism it will require much time and great labor to reform the basic principles of International Private Law prevailing in England — not to speak of the details. NOTES 1 . Travers Twiss, " Law of Nations," i, pp. 258-259, is entirely governed by the spirit of the Dutch School so far as he treats of International Private Law. " No law is operative propria vigore beyond the limits of the territory of the state which has set it." Reference is made to Huber, Rodenburg, Kent, etc. Story cites the dicta of a learned judge (Parker C. J. in Blanchard v. Russel, 13 Mass. 6) as follows, § 349 : — "As the laws of foreign countries are not admitted ex proprio vigore, but merely ex comitate, the judicial power will exercise a discretion with respect to the laws which they may be called upon to sanction." Story says ("Conflict of Laws," § 36) : " It is in the strictest sense a matter of the comity of nations and not of any absolute paramount obligation superseding all discretion on the subject." And at § 38 : " There is then not only no impropriety in the use of the phrase ' comity of nations,' but it is the most appropriate phrase to express the true founda- tion and extent of the obligation of the laws of one nation within the territories of another." On the other hand, it is interesting to note Dicey's treatment. He expresses himself clearly as against the doctrine of comitas in that he says (pp. 10-14) : " The application of foreign law is not a matter of caprice or option, it does not arise from the desire of the sovereign of England, or of any other sovereign, to show courtesy to other states. It flows from the impossibility of otherwise deter- mining whole classes of cases without gross inconvenience and injustice to litigants, whether natives or foreigners.'''' Wharton also opposes the theory of comitas ; see §§ I et seq. 2. It may be said that the conception generally adopted is that the internal law applies with such limitation as is demanded by a respect for international intercourse. This is true whether the internal law specially so states or not. However, the reasoning of Cosack Q^Lehrb. des deutschen bi'irg. Rechts^'' i, p. 45) is not exactly to the point when he speaks of a self-limitation of native law, by which, under circumstances, foreign law is applied. 3. Formerly it was often said that it required a particular consent on the part of the internal law to have recurrence to foreign law. A characteristic passage may be found in the argument to Art. 997 of a draft for a code of commerce for the kingdom of Wurttemberg (Stuttgart, 1840, p. 764), 4. The Zurich Code of Private Law (§1) proclaims a general proposition which is entirely correct as a theoretical basis — though by its nature not deter- mining very much. It is to the following effect : — " The private law of Zurich binds, primarily and solely, persons, natives and 142 INTERNATIONAL CIVIL AND COMMERCIAL LAW aliens, who live in the canton of Zurich or are temporarily present there, or seek a legal remedy there ; and it controls all private relations which come into opera- tion in this country, except in so far as the peculiar nature of the special legal relation requires either the application of a foreign law upon the territory, or the extension of the law of this territory to a foreign country." S . Catellani, ^^Delconflittofra norme didiritto internazionale private " (Venice, 1897), p. 51, well says: '■'■ il fondajnento delle regale di diritto internazionale pri- vate non ^ nl la comitas gentium ni una concessione graziosa relativa alia prote- zione degli strattieri. ... // diritto internazionale privato corrisponde air idea delta communita di diritto cosl egregiamente delineata dal Savigny." § 49. The Task of Science. I. The task of science in this branch of law embraces the follow- ing objects : — 1. To establish rules of conflict within the separate countries, and to determine their significance. 2. To test those rules which seem of doubtful value, and to attempt such improvements as seem necessary from a comparison with the rules of other states. For this, co-operation is essential. It is a misconception to beUeve that all that is necessary is an exterftal classification of the rules of law, and therefrom to deduce which clauses are applicable both to citizens of the state and to aliens living or sojourning therein. This is just what the statutory doctrine did, and it was the cause of its downfall. It is also incor- rect to believe (as Fillet '\n Journal de dr. i., xxi, 419) that it is only a matter of electing whether a law shall have territorial or extra- territorial effect. 3. To determine, in the particular cases, the system of law under which certain groups of issues shall be placed, so as best to subserve a rational cosmic intercourse between the nations. The whole subject-matter should be conceived of and treated from the cosmopolitan standpoint. Whoever does not so proceed will remain on the narrow path of particularistic conceptions, and will never attain the broader horizon which is here, as perhaps nowhere else in equal degree, so necessary. The study of International Private Law should be taught and studied at the most celebrated universities. There are a few coun- tries (as, for instance, Germany and Austria) where this subject is still fighting for proper recognition. It is significant of the luke- warmness shown toward International Private Law by German universities that this important topic is not separately treated of in INTERNATIONAL CIVIL LAW 1 43 Birkmeyer's newly published "Encyclopaedia of Law" (1901), con- trary to the practice of his literary predecessor, von Holtzendorff. It is also notable that under the heading of academic instruction (pp. 67-70) no mention at all is made of International Private Law. There are only some sporadic references and a few treatises upon international topics; "international civil law*' is covered on pp. 371 and 372, the "international law of bills" is cited on pp. 709, and "international civil procedure" on pp. 1194 and 1195. II. In reconstructing international rules of conflict, reference must be had: — 1. to the whole range of the history of jurisprudence. What the old authors said upon the collisio statutorum is mentally stimulat- ing and has not lost its significance through the lapse of time; their deductions deserve consideration now as then. Of course we must retain their environment in mind, at least in rough outline, in order to arrive at a complete understanding of their attitude 2. to judicature ; 3. to foreign as well as local authorities. Here less than in any other department of law does it suffice to study the literature of only one country. Of course we may well proceed with a certain electicism ; 4. to international treaties bearing upon the conflict of laws ; 5. to the South American proposals ; 6. to the proceedings of the International Conferences at The Hague. The proposals worked out at The Hague, to my mind, prove, in the sharpest and most convincing manner, the incorrect- ness of the belief that with the help of logic and International Law (as reserve forces) the appropriate solutions can always be found ; 7. to the conclusions and reports of the Institut de droit inter- national and the Association of International Law. The labors of these private societies are, to a great extent, not sufficiently appre- ciated. The German authorities in particular (with the exception of von Bar, Niemeyer, Kahn, and Storke) have taken almost no notice of them. The results of the Institut are most eminently significant. At this point we may mention the necessity of undertaking a fixation of the "seat" or locality of issues, remembering that Sa- vigny only formulated the problem anew and advanced a solution not tenable for all purposes. 144 INTERNATIONAL CIVIL AND COMMERCIAL LAW III. The task of the modern science of International Private Law may be solved in a variety of ways. 1. A careful completion of the rules of conflict in accordance with present ideas might be attempted in the codes of the sepa- rate states. By this method, every state would be proceeding by itself, though influenced by such principles as obtain generally in the modern science of the law. 2. The International Conferences elaborated their treaties with the understanding that the separate states should either accept or reject them i^'ne varietur"). Where only two states attempt to regu- late certain questions of International Private Law, no difficulties can arise with regard to the temporal and local effect of the treaty. But the proposals worked out at The Hague go farther ; they have in mind a treaty regulation of the question of conflict upon the broad platform of almost the whole of Europe. This element with- out doubt draws the danger with it, that the treaty will contain far too many concessions, exceptions, and restrictions. It is therefore a question for careful reflection whether a complete European regula- tion of the conflict of laws must not be postponed until the views of the internal jurisdictions cease to differ so radically. If so high a purpose can really be accomplished, it should be warmly welcomed. But even such an international understanding would, on principle, be effective only within the territory controlled by the contracting powers (Art. i of the treaty relating to marriage goes further; see Appendix I). The third International Confer- ence decided that the treaties shall not apply to colonies, but be- cause the relation of Algeria to France is closer than that of a colony, the clause was made to read that the convention shall refer only to the European territory of the contracting states. With regard to the admission of the states to the benefits of the conven- tion, a distinction has been made. Those who sent delegates to the third Conference are admissible on their own declaration ; others, however, only upon unanimous consent. The treaties are to be effective for five years as between all the states, and go into effect sixty days after ratification. The conventions upon marriage and divorce occupy a peculiar position. That upon marriage refers only to such marriages as have taken place after the treaty has become effective. The law as it existed before the treaty will be applicable to contested marriages, performed prior thereto, because INTERNATIONAL CIVIL LAW 145 dealing with legal events, the effects of which are dependent upon the law existing at the time they occurred. It is different in matters of divorce. There we have mostly to deal with rules of procedure, which, from their nature, are applicable without consider- ation as to the time when the marriage was entered into, or when the grounds for divorce arose. There is no vested right of married persons to be divorced according to the laws existing at the time of their marriage. No matter what method we follow, it remains clear and certain that in order to accomplish a really acceptable result, we must definitely decide to bid farewell to the Dutch School, the barren- ness of which must be clear to-day to every one who earnestly reflects upon our topic. Real progress in International Private Law can only be accomplished in the spirit which dominated the International Conferences at The Hague — we must enter upon the details of the question. IV. It is especially necessary to provide for an official collection of the treaties. Reference may be had in this connection to : — Meili, ^^Eine offizielle Heimstatte fiir das Peregrinenrecht der modernen Welt," in Jahrbiicher der internationalen VereinigJing fur vergleichende Rechts- •wissenschaft und Volkswirtschaftslehre, i, pp. 24-59. NOTES 1. Unfortunately there are jurists to be found even to-day who are under the ban of the doctrine set up by the Dutch School, the whole valuelessness of which is sharply brought out in the words of Huber himself: ''De jure civitatis;'' liber in, sect, rv, cap. I, IVo. 31 : "In sumina^ quoties conflictus legum in diversis civi- tatibus circa idem negotium occurrit, potestas loci, ubi res judicanda est, si velit potest et quidem jure suo per omnia sequi leges proprias ; sed ob reciprocam utili- tatem in disciplinam juris gentium abiit, ut jus loci, in quo res gesta fuit, pra- valeat; nisi rursus in contrarium utilitas alterius reipubliccE prcsponderet:' Compare Holder, "Kommentar zum burg. Gesetzb.'" (1900), p. 51. This jurist, remarkably enough, believes that, in a question of doubt, the internal law has the preference. 2. Some engaged with the science of our topic have almost given up m despair. See B. J. Voet, "Ad Pandectas,"" i, tit. iv, part ii, No. 15. He speaks of "intricatissima ac prope inexplicabiles controversies." This is also repeated by Alef in "Dies academici," at the beginning of dissertatio iv : " si in ulla juris parte perplexa admodum sese obtrudant qucestiones sane in hac de legum, consuetudi- num statutorumque conflictu agit, intricatissimce ac prope inexplicabiles surgunt controversies.'''' 146 INTERNATIONAL CIVIL AND COMMERCIAL LAW See also Bouhier, "Zw couiumes du duche de Boiirgogne^'' i, p. 450 ; Froland, " Memoir es concernans la nature et la quality des statuts^'' i, pp. 3, 8, 26 ; Hertius, "Commentationes,'''' vol. i, sectio iv, § Ixxiv ; F. Hamm, "£>« statutorum collisione^'' Erlangen, 1792, p. 13: '■'■ veniamus ad illam difficilem et qucestionem.'''' Story, "Conflict of Laws," 8th ed., p. 15 «, cites an American judge who refers to our topic as " a subject the most intricate and perplexed of any that has occupied the atten- tion of lawyers and courts ..." (Porter J. in Saul v. His Creditors, 5 Mart. N. S. La. 569, 588). § 50. Interpretation in International Private Law. I. Generally speaking, the recognized rules of interpretation apply also to our topic. This is true in regard to : — 1. statutes, customary law and usages ; 2. inquiries of a private legal nature {e.g. bona fides ; real intention of the parties) ; 3. treaties. It cannot be questioned that the civil courts may inter- pret such treaties as apply to questions of International Private Law. In France it has been held that they have no such com- petence ( Conseil d'Etat), or at least not when a question of public order is involved {Cour de cassation) — in the latter instance the decision must be referred to the National Government. But such a distinction is unfounded on principle. Compare Appert, " De r interpretation des traites diplomatiques au cours d'un precis verbal" in Journal de dr. i., 1899, xxvi, pp. 433-461. II. Interpretation of legal transactions, in the absence of express rules of conflict : — 1. Upon principle, the question of interpretation is determined by that system of law wtiich governs the legal relationship as a whole. 2. Beyond this, each case must be examined for itself in order to see whether the parties did not intend a different system of law to control in the interpretation of particular expressions or terms. Here we find difficult problems for the judge. Frequently he will conclude that the real meaning of the transaction must be sought in the light of points of view, conceptions, or requisites which dof not exist in the system of law otherwise applicable (Savigny, viii, p. 265). In this connection the language customarily used in similar contracts may be of assistance (e.g. in shipping contracts ; V. Bar, ii, p. 219). After deciding the question of the objective system of law to be applied, we should not absolutely shut out consideration of any other law. Each case has such a different coloring that it is impossible to formulate general principles. INTERNATIONAL CIVIL LAW 147 III. In the interpretation of laws or of legal transactions, reason- ableness must prevail, especially with a view to sustaining foreign transactions of a formal character. This proposition is often expressed in the statutes {favor negotii). It may be found in : — 1. Prussian Landrecht, i, 5, § 113 : — " If a contract has been made only through correspondence, without the execution of a formal instrument, and there is diver- gence in the legal forms prevailing at the places of residence of the contracting parties, the vahdity of the form is to be deter- mined by the law of the place according to which the transaction can best be sustained." 2. Austrian Civil Code, § 35. 3. Lucerne, Code of Private Law, § 25. A provision to the same effect is proposed by Petruschevecz (Art. cxciii) : — " Un engagement pris dans un etat quelconque par un etranger et en vertu duquel il confere des droits a des tiers sans les obliger reciproquement envers lui sera juge dans cet etat soit d'apres la lot de cet etat soit d'apres la loi de la patrie de Petranger, suivant que I'une ou r autre favorise le plus la validite de cet engagement." The interpretation of wills is discussed under a special head. See infra, § 146. NOTES 1. Story, § 270, says upon interpretation : " The object is to ascertain the real intention of the parties in their stipulations ; and when the latter are silent or ambiguous, to ascertain what is the true sense of the words used and what ought to be implied in order to give them their true and full effect. . . . But in many cases the words used in contracts have different meanings attached to them in different places by law and by custom. Hence the rule has found admission into almost all, if not into all, systems of jurisprudence, that if the full and entire inten- tion of the parties does not appear from the words of the contract, and if it can be interpreted by any custom or usage of the place where it is made, that course is to be adopted." I refer also to E. Danz, ^'■Die Auslegung der Rechtsgeschdfte^'' 1897, p. 147. This author is of the opinion that the rules of interpretation of the German code must govern even when a matter of foreign law is in question ; the judge has to determine in whose favor a doubt must be resolved, as to which trade customs can be applied, etc., etc. Danz refers in this matter to Art. 30, Intro- ductory Act, but I cannot admit his reasoning to be correct. 2. The revised Code of Civil Actions of the Canton of Berne (1883) expressly states at § 281 that in determining an issue according to the provisions of a treaty, the courts are empowered to interpret. 148 INTERNATIONAL CIVIL AND COMMERCIAL LAW 3 . A formal transaction can never be invalid simply because a foreign lan- guage has been employed ; in view of the cosmopolitan character of modem com- merce no one would think of denying this. 4. Compare also : Phillimore, iv, p. 571 : " Surely, the first principle of private international law is namely the duty as well as the expedience of upholding, wherever it is possible, bona fide transactions with the subjects of foreign states." § 51. So-called Fraud against the Internal Law. I. A fraicd against native lazv can only be constituted where the internal legislation categorically demands the application of its rules of law, and where it does not tolerate avoidance or modifica- tion by means of international change of locus. When the provi- sions of an internal law are not of so absolute a character, the right to rely on foreign law by reason of such change is recognized. I. The question frequently arises as to how a fraud against the native law shall be treated. How far is an act invalidated for the reason that a native subject has purposely taken advantage of laws existing in a foreign state. The question arises particularly: — {a) in the acquisition of domicile, because through this element an entire change of private rights may take place ; (b) in the acquisition of a new citizenship (v. Bar, i, pp. 223-226) ; we may consider for instance how the husband's change of nationality may affect the personal property rights of the wife ; (c) in questions of legal formalities ; ((/) in solemnizing marriages (v. Bar, i, p. 470) ; (if) in regard to wills. Many acts performed abroad were construed by the early authors as "fraus in legem domesticatn." Thus Huber, in his work, " De Jure civitatis," liber iii, sectio iv, cap. i, No. 29, says: "Hoc indubitattim est nan tenere potestates, sequi jus aliemim in fraudem sui juris vel civium suorum." This is also referred to in regard to wills {liber iii, sectio iv, cap. i, No. 28). In his comments upon the Bavarian Civil Code of Maximilian, Kreittmayr says (Munich, 1759, i, p. 22): — "The binding character of the laws reaches even extra ierri- torium Icgislatoris as against a subject acting in fraudem legis out- side of his state in order to have a freer hand." Of course Kreittmayr cites some rather peculiar examples for this proposition. He continues : — INTERNATIONAL CIVIL LAW 1 49 " From this principle it follows that we punish a subject who, for example, ingeniously celebrates a marriage in a foreign place in order to be able to invite more guests than the police ordinances allow, or who visits a foreign inn over the border in order to escape paying the tax on beer or -wine." 2. Theoretically speaking, subjection to the control of foreign law does not take away jurisdiction of the act from the native law ; indeed it may establish it (compare Regelsberger, " Pandekten," i, pp. 170-171, and Gierke, " Deutsches Privatr." i, p. 231). In each case it must be determined whether, pursuant to the rule of con- flict, an " agere in fraudem legis domesticce " annuls the act. As has been said, without a definite provision it will not have that effect. We may cite two conflicting examples out of Swiss law : — (a) The authorization given by the Federal Council to acquire citi- zenship was annulled in one case because the Council became convinced that the party desired to become a Swiss citizen only for the purpose of obtaining a divorce against the prohibi- tions of his native law {^Bundesblati, 1892, ii, p. 184). {p) The provisions of Art. 25, Federal Statute upon Civil Status and Marriage make possible the recognition of marriages entered into by native citizens abroad, against the prohibitions of the internal law (Bundesblatt, 1895, iii, p. 63). II. There are some laws which take notice of an " agere in fraudem legis domesticce " in certain directions only. 1. Examples are furnished by the Codes of Zurich (§ s) and Zug (§ 5) whereby the rule of "locus regit actum" is limited so as to make invalid within the state : — {a) such instruments as are executed abroad in order to circum- vent the internal forms ; {F) such instruments as are controlled by peremptory provisions on account of public considerations. The Code of Zurich (§8) cites as examples, pledges of house- hold goods (§ 403) and contracts for lifelong maintenance (§ 476). Within this rule is also included adoption (Zurich, § 720) and contracts between ancestor and descendant and between husband and wife (§ 443). In these cases, the observance of foreign for- malities will not suffice (Gierke, i, p. 231, note 60). 2. There are also statutes bearing specially upon the legal effect of a change of citizenship. I50 INTERNATIONAL CIVIL AND COMMERCIAL LAW In America and England The rule as stated above (I) probably also embraces the effect of the decisions in America and England, but only in so far as a particular inhibition or disability of the internal law has attached itself to the person of the party in question, so as to become part of his personal law. In other words, a fraud against the domestic law will not in itself invalidate a transaction vaHdly completed in another jurisdiction, although it may serve to point out that one system of law is applicable rather than another. For example, where the validity of a marriage contracted abroad is in question, the matter for determination will be whether a domicile has actu- ally been acquired, the domicile being the test of the personal law. As we have seen, domicile is to a large extent a matter of intention and thus the question whether the removal to the foreign state was in good faith, or merely to avoid the domestic law, will enter as an element in determining the domicile. Where it is clear that the removal to a foreign state was solely to defraud the in- ternal law so as to contract a marriage void by that law, the mar- riage will not be recognized (Marshall v. Marshall, 2 Hun 238 ; Pennegar v. State, Zj Tenn. 244). The rule was applied in Eng- land, where the parties removed from England to Denmark to avoid the law against marriage with a deceased wife's sister (Brook V. Brook, 3 Sm. & Gif. 48 ; aff'd 9 H. of L. Cas. 193). On the other hand, a divorce obtained after the removal to a foreign state has been upheld, where the court was satisfied that the bringing of the action was not the sole purpose for the removal, although it may have been one of the motives for so doing {In re Hall, 1901, 61 App. D. N.Y. 406). The execution of documents in a foreign state in order to avoid the revenue laws will not invalidate the instrument, unless ex- pressly so provided by statute, although such an evasion may render the person liable to a penalty (see Wharton, " Confl. of Laws," § 693). A specific provision is to be found in the Civil Code of Lower Canada (§ 135) in respect of the formalities of marriage cere- monies. It provides that "a marriage solemnized in a foreign country between two persons, either of whom are subject to the Canadian laws, is valid if solemnized according to the laws of the INTERNATIONAL CIVIL LAW 151 foreign country, provided that the parties did not go there with the intention of evading the law." § 52. The Distinction between Jurisdiction {forum) and Sub- stantive Law (Jus). I. The system of substantive civil law applicable to an issue is not determined by designating the court which shall have jurisdic- tion of the issue. This proposition is not sufficiently recognized. It is often said that the local judge is bound by the laws of the land. This has resulted in the following : — 1. Judges are inclined to apply local law wherever there are no express rules of conflict. "When in doubt apply the lex fori" {"in dubio pro lege fori") is a false maxim frequently adopted. 2. The parties often do not take the trouble to search out the foreign law, or to obtain its recognition in the course of litigation. 3. Even where judges assume to apply foreign law, they often carry over territorial conceptions in its interpretation. In certain statutes deaUng with private law and procedure, it is provided that unless a party expressly relies upon foreign law, the local law will be applied {e.g. Art. 13, Civil Code of Argen- tine). The rule is also to be found in the practice of some countries. II. Statutes and treaties sometimes wrongfully identify law with the forum. This has been the case : — 1. in the treaty between France and Switzerland regulating the jurisdiction of the courts ; 2. in the Civil Code of Egypt, Art. 4. As a matter of practice, issues are, more frequently than not, subject to the system of law which obtains at the venue of the action. This results partly because the lex fori applies properly to many relationships in International Private Law, and partly because the defendant is often cited at his domicile, or in the country of his citizenship, so that the lex fori coincides with the lex domicilii or the lex patricB. III. The aim of legislatures in fixing the jurisdiction of courts should be as far as possible to have the judge determine issues sub- ject to his own law, so as not to compel him unnecessarily to have recourse to foreign law. 152 INTERNATIONAL CIVIL AND COMMERCIAL LAW I expressed this view at the Hague Conferences {Actes, 1900, p. 132). It has also been embodied into a resolution by the Institut de droit international. It is not of fundamental importance, how- ever. IV. Sometimes more than one objective system of law can or must be applied within one and the same case. It often occurs that several systems of law are applicable to different parts of the same issue. We may recall : — 1. that the permissive character of the rule relating to formalities (see § 55, infra^ may make it possible that the substance of a transaction be governed by one system of law, its formalities tested by another ; 2. that coercive provisions of one system of law must be observed, where in all other matters another is authoritative. A transac- tion concerning a loan may be subject to foreign law, the ques- tion of interest to the domestic ; 3. that certain local rules having for their object the protection of the creditors of the local state as against foreign heirs or lega- tees, may be applicable, although the substantive rights of such heirs or legatees are determined in other respects by their foreign law; 4. that the system of law governing the law of marital property is different from that governing the personal relations of the spouses. In America and England The distinction between forum and jus is well recognized in these jurisdictions (see Phillimore, iv. No. xlv). But the pro- visions of a system of foreign law applicable to the rights of the parties, will not be applied ex officio by the court, as in the case of local law. Differing therefore from the rule on the Continent of Europe, it must be pleaded and proved like any other fact in the case (Hanley v. Donoghue, 116 U.S. i; Sloan v. Torry, 78 Mo. 623; BonelH's case, L. R. i P. D. 69; Hyde v. Hyde, L. R. I P. & M. 133). It is said "that the courts of a country are pre- sumed to be acquainted only with their own laws " and therefore " those of other countries must be averred and proved like other facts of which courts do not take judicial notice" (Monroe v. Douglass, 5 N.Y. 444, 452). It has been held in England, how- ever, that where the evidence of the witnesses adduced is insuf- ficient or contradictory, the courts may investigate the law for INTERNATIONAL CIVIL LAW 1 53 themselves, either by referring to foreign decisions, or the opinions of foreign writers, or even by examining for themselves the text of the law (Concha v. Murietta, 1889 L. R. 40 Ch. Div. 543). By the law of some of the States, judicial notice is taken of the laws of other States within the Union (Hobbs v. M. & C. R.R., 7 Heisk. Tenn. 873). This is opposed to the rule prevailing in most of the States (Huntington v. Atrill, 146 U.S. 659 ; Kelly v. Kelly, 161 Mass. 171; In re Cappler, 85 la. 82). But "the pre- sumption, in the absence of proof to the contrary, that the law of a foreign State is like our own, does not extend to positive statutory law" (Waters v. Spencer (1904), 89 N.Y. Supp. 693; citing Bank v. Bank, 156 N.Y. 472). NOTE A sharp distinction between jus and forum was made even in the Roman law (^Lex 59 Dejudiciis 5, i ; lex 19, §§ 3, 4 cif). § 53. The Relation of International Private Law to Internal Civil Law. V. Bar, i, 95, 127. Despagnet, Nos. 110-113. Pasquale, Fiore (Antoine), Ledroit international privi. 2d ed. i, Nos. 245-259. Laghi, Diritto iniernazionale privato net suoi rapporti colle leggi territoriali, VoL i (1888). Diena, ^'■Sui limiti alV applicabilita del diritto straniero" 1898 {Estratto dagli Studi Senesi, xv, 1-2). One of the most difficult problems that we have to deal with, is how to demarcate theoretically those rules of the internal law which must be observed under all circumstances, no matter what a foreign system of law may provide. I. Various formulas have been adopted to simplify the problem, viz. : — I. The formula of Savigny (§35, iii, j«/ra) which has also been adopted by other celebrated jurists, such as Unger (" System" i, p. 163) and Wyss (Z.furschweizer. R., ii, pp. 95-96). According to this formula, as stated by Franken {" Deutsches Privatr." p. 55), provisions violating the " basic tendencies " {Grundtendenzen) of the law of the local state cannot be recognized by it. The formula of Savigny (as thus interpreted) goes too far. Even if we refuse to recognize a certain foreign institution, e.g. polygamy, we must at 154 INTERNATIONAL CIVIL AND COMMERCIAL LAW least recognize those effects which are on a level with our own law. Thus it has been held that the plural wife of a Mussul- man and her children born in wedlock must be recognized as legitimate even in monogamic states (German Imperial Ct, xxi, 136; xxix, 90). 2. The Italian School supports the view that the local classifi- cation of the law into jus publicum and jus privatum appUes also internationally, and that foreign public law can never be binding on a local court. The objections urged against this solution are as follows : — {a) that questions involving the status, though surely belonging to jus publicum, should still not be made variable in each jurisdic- tion ; the Italian School would be the last to favor such a result ; ((5) that very many propositions of private law are combined with questions of internal public order {e.g. those relating to the law oj the jamily and succession). 3. A different solution is furnished by Laurent {e.g. ii, No. 52) who maintains that so much of the local law as relates to social order {^'les lois d'ordre social"^ shall have absolute preference over foreign rules. Compare also Art. 26 of his proposed Belgian code. 4. French jurists (e.g. Despagnet va. Journal de dr. i., xvi, 217) propose the following distinction : — {a) lois d'ordres public absolues, which embrace all those rules which are applicable also to aliens ; {b) lois d''ordre public relatives, which refer to such matters of the family as marriage, guardianship, etc., and are not applicable to aliens. 5. Brocher("A^^z^z;^flM traits," i. No. 141) speaks of " ordre pub- lic interne" and " ordre public international." II. The correct solution may perhaps be brought out by the fol- lowing reflections : — The internal state can never directly recognize transactions or rights which are regarded by the domestic laws as unqualifiedly objectionable. But this exclusive standard cannot be considered as applicable to the following relationships : — I. to transactions which have been already completed abroad; examples are furnished by judgments in bastardy proceedings, INTERNATIONAL CIVIL LAW 155 even where the domestic law does not permit of them (France) ; judgments upon transactions at markets or exchanges ; 2. to transactions subjected to foreign law by the agreement of the parties ; 3. to transactions which are subject to foreign law according to express rules of conflict. Where no particular domestic rule of conflict exists, the ques- tion whether local law is binding must depend upon whether the transaction is contrary to international law, or good morals from the standpoint of cosmopolitan intercourse ( Weltverkehr). Trans- actions tending to promote the slave trade, smuggling, and insur- rection are void and unenforceable because contrary to international law. Again, claims growing out of transactions at a gambling place {e.g. Monaco), claims for compensation in obtaining false witnesses, procuring abortion, procuring girls for purposes of pros- titution (see Hilty, " Traits blanche" Political Yearbook of the Swiss Confederation, xv, p. 217), claims of spies or rogues for payment of sums promised, etc., are likewise void and unenforceable because contrary to international good morals. III. It would be highly desirable for the legislatures of the various states to expressly and specially indicate which rules shall have an absolute territorial effect. IV. It is just upon this important, though indeed difficult, sub- ject, that some of the existing rules of conflict are extraordinarily 1. This must be said of the German law. Art. 30, Introduc- tory Act, is to the following effect : — " The application of a foreign law shall be denied if the same would offend good morals or the policy of a German statute." 2. Dicey formulates the principle as follows (General principles, No. II; compare also pp. 558-563): — " English Courts will not enforce a right otherwise duly acquired under the law of a foreign country : — (a) where the enforcement of such right is inconsistent with any statute of the Imperial Parliament intended to have extra- territorial operation ; {V) where the enforcement of such right is inconsistent with the policy of English law, or with the maintenance of English polit- ical institutions ; 156 INTERNATIONAL CIVIL AND COMMERCIAL LAW (y the lex fori, a plea of the statute of limitations of the state where the contract is made is no bar to a suit brought in a foreign court to enforce the contract ; though a plea of the statute of the state where the suit is brought is a valid bar, even though brought upon a foreign judgment, provided the time of the residence of the party brings him within the time prescribed by the statute. . . . The statute of limitations of the state in whose courts a suit is prosecuted must prevail in all actions?^ See also Dicey, p. 21, "It is now settled by a series of decisions that the question whether an action on a contract is barred by a statute of limitation must, in an English court, be determined wholly by reference to the lex fori, i.e. the ordinary or territorial law of England." LAW OF PERSONS § 57. The Capacity to have Rights and the Capacity to act of Natural Persons in General. P. de Paepe, "Z>tf la loi applicable i VHat, & la capaciU et aux meubles des Hrangers^'' in Revue de dr. i., 2d ser., ii, p. 378. I. The capacity to have rights is to be distinguished from the capacity to act. 1. When a human being has the capacity to have rights, he is regarded as a person (whether freeman or slave) before the law. This capacity is determinable exclusively by the law of the sojourn {forum) ; for even if slavery, bond-service, or civil death be institu- tions of the national or domiciliary state, they cannot be recognized where they exist neither in fact nor in law. 2. Capacity to act or the status is that independent power con- tained within the quality of a person to undertake particular transactions of a private legal nature, or it is " the legal position of a party in or with regard to the rest of a community." Capacity in private law is to be distinguished from political or public capacity. They are differently dealt with by legislation and practice. II. The following questions are embraced within capacity to act or the status : — 1 . whether a person possess those peculiarly personal requi- sites made necessary by law in order to transact business of a private legal nature ; 2. whether a person has or has not been born in lawful wed- lock ; if not, whether he has been legitimated ; 3. whether a person be under guardianship ; 4. whether a person (woman) be under a disability of mar- riage ; 5. whether a person possess capacity to marry (this question, for obvious reasons, is usually regulated separately) ; 6. whether a person's capacity to act has been limited by a 173 174 INTERNATIONAL CIVIL AND COMMERCIAL LAW penal sentence, provided such a disability be recognized at all in the local state. Besides separating from the conception of status, the concep- tion of political citizenship, and the capacity to represent others before court, we must also separate all those substantive requisites which the laws provide for the origin, modification, or dissolution of legal relationships. In this latter category belong those sub- stantive provisions according to which adoption or legitimation takes place, by which things (movable or immovable) are acquired, ahenated, or donated, or by which a person is permitted to inherit. It is confusing, at least from the international point of view, to conceive of provisions in this direction as affecting the " capacity " of an individual and to speak of the capacity to be adopted, to be made legitimate, to receive a gift, to inherit, and the like, when denoting the objective and substantive requisites for these pro- cesses. The preliminary question everywhere in private law is : Can a certain person undertake transactions with binding effect, or is he, in whole or in part, incompetent .■' But when once this question is settled, we then have to do with requisites of general substantive law, which, especially in international law, must be dealt with separately. If this course were not followed, all the subjective rights of an individual could finally be denoted as "jura status." And it might result, almost unnoticed, that all questions in international Ufe were referred to the same law as that determining the status. An ear- nest warning must be registered against this misconception. Whether testamentary capacity falls within the conception of status is disputable. We will discuss it in the law of succession. It is usually separately regulated by statute. Here the following is to be noted : If we hmit the conception of status to contractual capacity {capacity de contracter), then of course testamentary capacity is not included. Von Bar specifically extracts the capacity to make a will from transactual capacity. He remarks that both testamen- tary and intestate succession might take place at the same time to the same estate, if a different system of law were applicable to intestate succession than to testamentary capacity (v. Bar. ii, p. 319). It has further been said that transactual capacity must be limited in its scope to undertakings between living persons (v. Bar, i, pp. 388-389); personality ends with death; the testator does not, LAW OF PERSONS 17S strictly speaking, deal with his possessions, and can only cause the effect, by the declaration of his will, that another person may acquire or not acquire a group of possessions, and undertake or not undertake a group of liabilities. III. The capacity to commit a civil tort is theoretically also a question of status, as is the capacity to com.m.it a crime. This proposition is not yet recognized in practice. I. Capacity in tort is properly to be separated from substantive rules (upon requisites and effects) governing the particular act. It does not necessarily coincide with capacity to act in general. In practice civil torts are referred to the law under which they occur ; this law is held also to govern the question of capacity. It is not the proper rule on principle (see A. Rolin, " Le statut per- sonnel en matikre de droit p^nal" in Revue de dr. i., N. S., i, pp. 43 et seq.). IV. The determination of the system of law governing the status is most important in international matters. This is especially true because : — 1. the age of majority has been differently regulated in dif- ferent states (cf. Meili, " Institutio7ien der vergleichenden Rechts- wissenschaft" pp. 109— 1 10) ; 2. there are material differences in the other questions of status ; 3. for individual reasons, exceptions may be recognized in par- ticular cases. It is easily understood why jurisprudence has tried for a long time to establish a "status uniformis" for cosmic intercourse. This was attempted, peculiarly enough, by the Dutch School. Burgundus (" Ad consuetudines Flandrice tractatus" i, No. 8) : — "... qtd inhabilis est in uno loco, etiam in alio censetur in- habilis, quod uiique accipiendum est de habilitate vel inhabilitate, qucE a statute personali procedit et ad actus personates dtrigitur." StockmansiDec. 125, No. 8, p. 263): — " Statuta in personas directa, quceque certam its qualitatem affigunt, transeunt quidem cum personis extra territorium statuen- tium, ut persona ubique sit uniformis ejusque unus status." Ulric Huber expresses himself as follows in " Prcelectiones," pars ii, liber i, tit. iii. No. 12: — 176 INTERNATIONAL CIVIL AND COMMERCIAL LAW " Qualitates personalis certo loco alicui jure impressas, ubique circumferri et personam comitari, cum hoc effectu, ut ubivis locorum eo jure, quo tales persona alibi gaudent vel subjecti sunt, fruantur et subjiciantur. Hinc qui apud nos in tutela curave sunt, ut ado- lescentes, jiliifamilias, prodigi, mulieres nuptce, ubique pro personis curcz subjectis habentur, et jitre, quod cura singulis in locis tribuit, utuntur et fruuntur. Hinc qui in Frisia veniam ostatis impetravit, in Hollandia contrahens ibi non restituitur in integrum. Qui pro- digus hie est declaratus, alibi contrahens valide non obligatur, neque convenitiir." The uniformity of status is referred in theory to Lex 19 R.J. 50, 17, "Qui cum alio contrahit vel est debet esse non ignarus conditionis ejus." The effect of this is that any one contracting with another must know his legal position or must ascertain it. The same view was maintained also by the Speculator and by de Rosate. We shall see that a "status uniformis" may work much hardship if adhered to without limitation, especially in re- gard to commercial relationships. V. A penal sentence may greatly limit capacity to act in some countries. Upon principle, a foreign penal sentence may affect the private legal status of a person, although the authorities frequently say that a criminal judgment can have no extra-territorial effect. Civil disabilities resulting from a foreign penal sentence should be recognized internationally. There is really no distinction between a limitation of capacity enacted directly in a foreign law and that declared by a foreign court. A distinction might be made between : 1. interdictions accompanying a penal sentence declared in the native state upon the person whose status is under consideration ; and, 2. interdictions declared by a government to which the partic- ular person was not subject. Argentraeus demanded this distinction in No. 13, and Burgun- dus {"Ad consuetudines Flandrice") treats of it specially under the general heading, " Utrum sententicz excedant territorium!' The author first discusses (in Nos. i-io) the classification of sentences (sententice reales, personales, and inixtcs), and then says at the end of No. 10, in regard to sententice personales : — " Ceterum ex his sententiis quce ad personas rejeruntur nonuna est qualitas ; aut enim de ea qucBritur quce personam obstringit ad LAW OF PERSONS 1 77 aliquid, et hcBC magis accedit ad naturam obligationis ; aut de ea (No. ii), qux statum personce turbat et hac conditionem amu- latur statuti personalis. Sed quoniam omnis propositi nostri summa eo spectat, ut sciaiur utrum suum sententia egrediatur territorium : excutiamus itaque naturam singularum ; nam mihi quidem sola ilia, qucB de statu persona fertur, explicare vives extra territorii limites vivetur." Burgundus holds that the infamy of a penal sentence accom- panies the person everywhere, and, as it were, brands his status with a blemish (= No. 12). Boullenois also states that excommuni- cation and civil death are of universal effect {litre i, ch. ii, obs. iv). There seems to be a difference of opinion among French jurists of the present day, as to whether a penal sentence will, or will not, work extra-territorially upon the status. To the effect that it will not is R. Garraud, "Traiti thioriqtie et pratique de droit p^nal fran- cais," 2d ed., 1898, i, p. 324. Contra, A. Rolin, " Le statut personnel en matikre de droit p^nal," in Revue de dr. i., N. S., i, pp. 43, 58; Weiss, "Traits Mhnentaire de dr. int. priv^," 2d ed., pp. 43S-436; FoeUx, ii, p. 316, note«. VI . The significance of the question of status is better understood when we remember that the principles applicable to it apply through- out the whole dotnain of private law. An exception is constituted by English and American law, wherein the question of status is always dependent upon the character of the objects dealt with, or of the acts done by the person whose status is being considered. It will be unnecessary to return again to questions of the status in discussing the detail, unless certain peculiarities must be mentioned. VII. The status is subjected by law and practice to a varying treatment in the different countries of the world. As a rule, whatever the principle adopted, it will apply to all the qualities combined in the status, that is to say, for the capacity to act of the following classes of persons, viz. : — 1. minors and adults ; 2. wards (this becomes of particular importance in regard to testa- mentary capacity; there are also some laws giving wards the right to create charities (§ 40, Zurich Code of Private Law)) ; 3. persons under curatory ; 4. interdicted persons. 178 INTERNATIONAL CIVIL AND COMMERCIAL LAW The capacity to act with regard to certain matters is usually regulated specially, so that the general principle which may have been adopted upon the capacity to act will not apply. Such cases are the following, viz. : — 1. capacity to marry; 2. capacity to voluntarily recognize a child bom out of wedlock ; 3. testamentary capacity. It is disputed whether testamentary capacity belongs at all to the capacity to act. VIII. There are certain limitations of the capacity to act, result- ing from an execution {for debt) and dependent upon the same. Here the lex fori applies. For instance, in Swiss law : — 1. Art. 96, Fed. Statute, upon Prosecution of Debts and Bankruptcy provides : — " The debtor is restrained under penalty from interfering in any manner with the property under execution, unless assented to by the levying officer. He shall be expressly notified of this by the officer." 2. Art. 204: — " Acts done by the bankrupt after adjudication, with reference to the property belonging to the bankrupt estate, are void as against the creditors in bankruptcy. " Provided, however, that if the bankrupt, before the publication of the adjudication, has paid a bill of exchange made by, or drawn against him, at maturity, the payment shall be valid in case the payee had no notice of the adjudication and could have had redress against third persons.'' 3. Art. 298: — " The debtor is permitted to continue his business under survey- ance of the receiver ; however, from the time of publishing the receivership, he cannot validly convey or incumber real estate, give pledges, enter into bail, or deal with his property without con- sideration." IX. We will treat of testamentary capacity specially under thr law of succession {infra, § 144). § 58. The Regulation of the Status according to the Laws of the Principal Nations of the World. I. In states supporting the theory of national law (§ 44, suprd). LAW OF PERSONS 1/9 the status of the alien in the internal state, and of the native abroad, is controlled by the lex patricB. From this rule, it follows that if a person have capacity to act by the laws of his own country, he will have it everywhere, and if he be incapacitated, or limited in capacity there, he will be under the same disability everywhere else. Thus we might here speak of the " ubiquity " of the status ; nor is it material whether the manifestations of the status take place in relations between aliens inter se, or between aliens and natives. In the words of Boullenois (ii, p. 95): " L'homme capable par ^tat parte cette capacity partout. Uhomme incapable par itat parte ^galement cette incapacity d'etat partaut." I . Italy The rule as stated is unconditionally recognized by legislation in Italy, at least in regard to ordinary matters of private law. In the Disposizioni, or provisions upon the publication, interpretation, and application of the laws in general, which constitute an intro- duction to the Civil Code of 1865, the following provision is found (Art. 6) : — " Lo stato e la capacita delle persone ed i rapporti di famiglia sono regolati dalla legge delta nazione a cut esse appartengono." The status and capacity of persons and the relations of the fam- ily shall be regulated by the law of the nation to which the persons belong. It is to be noted that the Italian lawmaker speaks bluntly of the status of the person. We may therefore say that the law embraces : — (a) the status of the alien domiciled (or sojourning) in Italy ; (b) the status of the Italian domiciled (or sojourning) abroad. 2. France France supports the same principle. It is true. Art. 3, par. 3, of the Civil Code reads literally as follows : — " Les lots concernant I'etat at la capacite des personnes regissent les Fran^ais mime resident en pays etrangers." The laws concerning the status and capacity of persons are con- trolling upon Frenchmen even though residing in foreign countries. l80 INTERNATIONAL CIVIL AND COMMERCIAL LAW Differing from the Italian Disposizioni, the French Civil Code speaks of Frenchmen abroad. Notwithstanding this, the rule is held in practice to mean that the status of aliens residing in France is also governed by the lex patrice. Compare Laurent, " Expos^ critique des principes g^n^raux en matikre de status reels et personnels d'aprks le droit frangais," in Revue de dr. i., i, p. 244. The rule does not apply, however, to immovables. The status of a person in dealing with immovables is governed by the lex rei sitce. Art. 3, par. 2, Civil Code, provides : — " Immovables, including those possessed by aliens, shall be governed by French law." There is another limitation of the principle for the benefit of French citizens. The courts have established the following proposition : Where a Frenchman contracts with an alien who, according to the law of his own country, has no capacity to act, the alien will nevertheless be treated as having such capacity, provided the Frenchman believed him to have it -without being guilty of negligence. The main point here is that the Frenchman has been mistaken in regard to the age or other disability of the party. In ^& Journal de dr. i., xxvi, pp. 364-367, a case is cited in which the following is said in regard to the status of an Italian woman : — " In view of the fact that the alien resident in France is gov- erned by his personal statute in regard to his capacity to act, it follows that the validity of the agreement and of the legal acqui- escence thereto are determinable by Italian law, as it is established that X (the creditor) was neither deceived as to the age nor as to the nationality of the defendant.'' 3. The Netherlands The statute of 1829 provides (Art. 6): — " The statutes relating to the law of the status and the capacity of persons to act apply also to citizens of the Netherlands sojourning in a foreign country." With this provision, the law of the Dutch Indies coincides (Art. 16). Conversely, the law of the Netherlands, through the practice of the courts, refers to the national law of aliens domiciled in the local state, in regard to their personal, family, and succes- sory relationships. Here, as in France, immovables are excepted from the rule. LAW OF PERSONS l8l 4. Portugal The Civil Code provides in Art. 27 : — "The status and civil capacity of aliens are governed by the laws of their own country." II. In those states which support the theory of domiciliary law ( § 43, supra), the status of the alien in the internal state and of the native subject abroad is controlled by the lex domicilii. From this it follows that whosoever has the capacity to act by the law of his momentary domicile has such capacity, no matter what the lex patrics provides. III. There are certain systems of law in which it is declared that the status of aliens is, on principle, referable to the lex patrice, although its determination in certain directions is dependent upon territorial rules. I. The Germ,an Empire 1. The general principle is here, indeed, the lex patrics, as Art. 7 of the Introductory Act provides : — " The capacity of a person to act is determined according to the law of the state to which the person belongs." 2. But this principle is subject to two modifications ; to wit : — {a) By virtue of the following further provisions of Art. 7 : — " Where an alien undertakes a transaction in the inland, in regard to which he has no capacity to act, or for which his capacity is restricted, he shall, for such transaction, be con- sidered as having full capacity, provided the German laws would so consider him. This shall, however, have no applica- tion to transactions within the law of the family or succession, or such as purport to deal with a foreign piece of land." In other words, transactions within the category of commer- cial or international intercourse, are subject to German law as a territorial . rule. (V) By virtue of Art. 27, Introductory Act, by which German law is made applicable if the law of the state to which the alien himself belongs, refers the question to that system of law (see supra, § 7, iii, 2). In that event the German {i.e. domiciliary) law applies even to such questions of the status as are not in- cluded within the territorial rule of Art. 7. I82 INTERNATIONAL CIVIL AND COMMERCIAL LAW 2. Japan Practically the same principle as is established by Art. 7 of the German Introductory Act, just quoted, has been enacted by the Japanese statute of 1898 in Art. 3. 3. Switzerland The basic principle of Swiss law relative to the status is also the lex patrice, but the rule is considerably modified, as Art. 10 of the Federal Statute upon Personal Capacity (188 1) contains a territorial rule applicable to transactions of commercial intercourse entered into upon Swiss soil between aliens and Swiss subjects. It provides : — " I. The provisions of this act shall apply to all Swiss, whether residing at home or abroad. " 2. The capacity of persons to act is governed by the law of the state to which they belong. " 3. If, however, an alien, incapacitated to act by the law of his own country, enters into obligations in Switzerland, he shall be bound in so far as he would be considered competent according to Swiss law." The later statute of 1891 (which we refer to as N. & A.) ex- pressly reserves the second and third paragraphs of Art. 10. Art. 10 does not interfere with the application of such laws of a person's native state as do not enact restrictions based upon personal reasons inherent in the person himself (Message of Fed. Council, Biindesb., 1879, iii' P- 69). This excludes such limitations of capacity as result from the existence of peculiar legal relation- ships. As examples of these may be cited limitations upon the power to deal with particular property, e.g. goods obtained by fraud, the disability of a married woman, the disability of the husband to interfere with rights of the wife. The message of the council points out that especially the latter limitations are results not of individual pecuUarities, but of the marriage relation, and can be regulated only in organic co-operation with the entire law of marriage. Similar reasoning applies to limitations set upon the freedom of action of a bankrupt to deal with his property. It follows, then, that by virtue of the limited territorial rule of Art. 1O3, an alien, after having entered into transactions in Switzer- land, cannot rely upon disabilities such as the following : — LAW OF PERSONS 1 83 (a) his minority according to national law, if he be major by Swiss law; (6) the quality of being " son of the house " {Senatus Consultum Macedonianmn) even though this be a good defence to a loan, according to the lex pairia. Nor can an alien unmarried woman or widow rely upon the disability of sex imposed by her national law — contra, an alien married woman, whose status (as we shall see) is referred to the lex patrice. On the other hand, Art. lOg does not apply to the status of aliens in regard to such matters as are not connected with com- merce, such as questions relating to the family and succession. Upon these points Art. 8 (and 32), N, &■ A. must be referred to, while the capacity to marry is regulated by the Federal Statute upon Civil Status and Marriage. Differing from the law of France, the Swiss rule is wholly independent of any proof that the party has been deceived as to the capacity of the alien or as to provisions of his national law, or that he was guilty of negligence or had reason to suspect that the alien was without capacity. The lex patrice will apply, however, in the following directions : — • 1. To Swiss citizens abroad, so far as the foreign law does not make itself applicable (Art. 28, No. 2, N.&A.). As long as Art. 10, par. I, was in force (it was superseded by Art. 34, N. &• A.), Swiss courts were compelled to apply Swiss law upon the status to all obligations entered into by a Swiss abroad. Now, how- ever, if the foreign law makes itself applicable, the validity of the transaction must be tested according to that law. 2. To aliens in Switzerland when the territorial rule of Art. 10, par. 3, does not work a change in the status. 3. To aliens entering into transactions in Switzerland with other aliens of the same or different state, no matter whether the transactions are or are not commercial in nature. There is no reasonable ground for extending the territoriality of the rule to relations between aliens themselves, as the statute merefy intended to favor the Swiss and the course of trade with Swiss (see Schneider and Fick, "Das schweiz. Obligationenrecht" etc., p. 38, No. 4). 4. To such legal relations as are based upon correspondence 1 84 INTERNATIONAL CIVIL AND COMMERCIAL LAW between aliens and Swiss. Compare to this effect also, Schneider and Fick, supra. IV. There are certain systems of law in which the status is treated purely territorially. See § 59, infra. V. A tortious misrepresentation by a person to the effect that he has capacity to contract renders him liable for damages either in an amount eqtiivalent to performance, or for the injury sustained by non-performance, according to the law of the place where the act occurs. 1. In other words, the lex delicti commissi is applicable, even though in other matters the status is determined by the national or domiciliary law. 2. The principle is expressed in Art. 866 of the Austrian Civil Code, as follows : — " Whoever artfully represents himself as having capacity to con- tract and thereby deceives another person not readily able to obtain the correct information, shall be liable for satisfaction." Art. 33 of the Swiss Code of Obligations provides : — - " If he [the party not bound] has led the other contracting party into a mistaken belief as to his capacity to contract, he shall be liable to him for the damage caused thereby." It will not require malice to make the party liable, but merely such conduct as represents a breach of the duty to deal fairly and honestly. On the other hand, mere silence as to the disability will not suffice. § 59. The Regulation of the Status according to American and English Law in Particular. There is a great difference of opinion as to the standard to be adopted in these countries for the determination of personal law. The national law is, of course, rejected absolutely, but there is still a mighty struggle pending between the domiciliary and the territorial standards. Westlake (" Private International Law," 3d ed., p. 43) says : — " § I . Whenever the operation of a personal law is admitted in England, the domicile of the person in question, and not his political nationality, is considered to determine such personal law. " § 2. When the capacity of a person to act in any given way is questioned on the ground of his age, it is perhaps still uncertain, LAW OF PERSONS 1 85 whether the solution of the question will be referred in England to a personal law." Dicey lays down the following rule (No. 123, p. 477): — "Any status existing under the law of a person's domicile is recognized by the court as regards all transactions taking place wholly within the country where he is domiciled." Wharton also holds to the domiciliary standard with the follow- ing restrictions (§§ 84 ^i* seq.) : — "... we are led to refuse extra-territorial operation to foreign laws so far as they impose on persons marrying or doing business within our territory restrictions which we deem artificial and impolitic!" He says that " it is part of our public order and public morals that young men of twenty-one should be capable of making con- tracts that will bind them to others and bind others to them " (§ 8). Dudley Field, on the other hand, supports the territorial doc- trine absolutely, i.e. " the law of the place where the transaction is had" (§ 542, "Draft Outlines of an International Code"): — " This is the American rule ... on a review of many author- ities ; and it is submitted as the plain and reasonable rule, which will solve many vexed questions." He sees no advantage in a uniform status and favors the terri- torial rule because " the inconvenience of a fluctuating rule is an inconvenience to the individual only, requiring him to ascertain and conform to the law of the place where he may be. It is the most convenient form for facilitating commercial transactions and the administration of justice " (i, p. 380). The difference of opinion which this review of the authorities brings to light is merely a reflection of the decisions of the courts. It may be explained by the fact that the courts frequently state a rule in its broadest terms, when the rule happens to be applicable to the particular case in hand, and neglect to state the exceptions. Indeed, there are so many qualifications and exceptions in regard to the questions involved in the status that no absolute rule can be laid down. An English judge has defined the status to be " the legal position of a party in or with regard to the rest of a community " (Brett L.J. in Niboyet v. Niboyet, L. R. 4, P. D. i, 11). It is clear from this definition that it will depend upon x!ci& particular legal rela- 1 86 INTERNATIONAL CIVIL AND COMMERCIAL LAW tionship with which we are dealing, whether or not the " legal posi- tion " of a person will be determined by this or by that system of law. We will therefore refrain from discussing these questions ex- cept in connection with each particular legal relationship, as, for instance, of marriage, succession, etc. As we have seen, most of the countries of Europe have laid down a general statutory rule applicable to the status of persons, which can be treated as the ordinary or normal rule upon that subject. In order that we may have a normal or general rule in mind also in connection with English and American cases, it may be noted that the highest courts of both Jurisdictions have declared in favor of the law of the domicile. The United States Supreme Court has said, "as a general rule . . . the law of the domicile governs the status of a person" (Lamar v. Micou, 112 U.S. 452). In the House of Lords, Lord Westbury has held that " the civil status is governed universally by one single principle — namely, that of domicile, which is the criterion established by law for the purpose of determining civil status " (Udny v. Udny, L. R. Sc. App. 441, at page 457). § 60. The Capacity to act of Minors and Adults. I. From the foregoing discussions upon status it follows that the powers of adults and minors are determined by various standards in the different countries. 1. The lex patrice is controlling wherever legislation or theory supports this principle generally. Majority will then be deter- mined exclusively by the lex patrice without regard to the domicile. 2. The lex domicilii is controlling wherever legislation or theory supports this principle generally. Majority will then be dependent exclusively upon the lex domicilii without regard to the lex patrice. 3. Territorial law is controlhng in England and the United States without considering the lex patrice or the lex domicilii. Reasons for this view are (especially in the latter country) rules of public law and the interests of the minor himself. Wharton (§ 115) says that "to treat a foreigner of twenty-one, when in the United States, as a minor, because he is a minor in his own land, would not only be a fraud on all who deal with him in ignorance of the incapacity, but would inflict a cruel disability on himself." 4. The territorial law is controlling in regard to the relations of LAW OF PERSONS 1 87 commercial intercourse in Switzerland. Here the domestic law has cut away the " dangerous consequences " of the lex patrice (Art. 1O3, Fed. Stat. Pers. Cap.). 5. A peculiar attitude is assumed by German law, based upon Arts 7 and 27, Introductory Act (see § 7, III, 2, supra). Espe- cially with regard to majority and minority does the rule seem least to recommend itself when it gives the lex patrice absolute control (compare also Dernburg, ^^Das bUrg. Recht des d. Reichs mid Preus- sens," i, § 36, p. 97). For example : — {a) An Argentinian of twenty-one and a half years of age (who reaches his majority at twenty-two), domiciled in Germany, would be considered in all respects a minor in Germany in respect of those relationships in which the lex patricB is held to apply (Art. 7). But Argentine would consider the same Argentinian as a major because that state supports the theory of the lex domicilii in international matters. As Dernburg properly says {supra), this legal result seems most bizarre. (p) Again, a Dane of twenty-two and a half years of age (who reaches his majority at twenty-three), domiciled in Germany, would be considered a minor therein, while a Danish court, according to International Private Law as prevailing in Den- mark, would apply the domiciliary law, i.e. of Germany, and consider him as major in respect of transactions entered into there (see Dernburg, supra). II. TAe status of majority, once acquired, is not altered through a fact occurring later, such as a change of nationality. The proposition laid down is ^^ semel major semper major" (com- pare E. Spangenberg, "Prakt. Erorterungen aus alle^i Teilen der Rechtsgelehrsamkeit," 1837, "> PP- 93-99)- Jettel also well says (^' Handbuch des int. Priv. und Strafrechts," p. 27) that majority once acquired is not lost, although the circumstance under which it arose has fallen away and although the person in question later became a citizen of a country, according to the laws of which he would not yet be of full age. It may be said, incidentally, that this is in accordance with modern theories of "intertemporal private law " ( = upon retroactive effect). For instance, Swiss Fed. Stat. Pers. Cap. provides : — " Persons who have attained capacity to act by virtue of cantonal laws at the time this act goes into effect, retain such capacity." 1 88 INTERNATIONAL CIVIL AND COMMERCIAL LAW III. The act of ratifying a transaction after reaching majority is governed by the same system of law which is authoritative for the transaction itself. In America and England Notwithstanding the getieral rule as stated by the highest courts of these Jurisdictions (see § 59, supra) to the effect that the law of the domicile governs in matters of status, it is uniformly held in both countries that the question of majority and minority is one of national policy, and therefore the lex loci actus, i.e. the law of the country where the acts are done, the rights are acquired, or the contracts are made, will govern. Thus, though a person of twenty- two be domiciled at Vienna, where the age of majority is twenty-four (Art. 21, Civ. Code), he cannot escape liability on the ground of infancy in the United States or in England for a debt incurred in those jurisdictions. It is true that in many cases the locus actus is identical with the locus domicilii, but that the former is taken as authoritative, and not the latter, is shown by the fact that the converse case is equally true. In other words, if a person domi- ciled in the United States or in England, of the age of twenty-two, enter into a contract at Vienna, he will not be held liable upon it, because not of full age to contract at the place where the contract was entered into (Thompson v. Ketcham, 8 Johns. 189; Bank of La. ■y. Williams, 46 Miss. 624; Gilbreath v. Bunce, 6$ Mo. 349; Male V. Roberts, 3 Esp. 163; Cooper v. Cooper, H. of L., 1888, Ct. of Sess. Rep., 4th Ser., xv, p. 21 ; Parsons on Contracts, vol. 3, P- 575)- To these two examples may be added a third, cited by Foote ("Priv. Int. Jur.," p. 261), whereby two Englishmen, transiently pres- ent in a country whose law regards them as infants, enter into a contract at that place. Although he says that "it would be difficult to think that a plea of infancy would be allowed to prevail," it would certainly be the only proper and logical conclusion from the rule laid down in the other two classes of cases. It is well established that fraudulent representations made by an infant to induce another person to enter into legal relations with him will not give validity to the transaction itself (Tyler on Infants, pp. S3, 57). LAW OF PERSONS 1 89 § 61. The Capacity to Act of Persons under Curatory for Prodigality. V. Bar, i, pp. 425-428. I. According to the law prevailing on the Continent of Europe, the personal status established by the judicial decree is authoritative. I. The meaning of this is : — (a) that the person, under curatory may rely upon the limitation placed on his capacity to act, under the jurisdiction of the lex patrice, without giving consideration to the territorial or the domiciUary law ; {F) that in a country which supports the theory of the lex domicilii, he may rely upon his incapacity as established in his jurisdiction of domicile, even if he be sojourning at a place different than his domicile. Persons under guardianship or interdiction by reason of prodi- gality are of course not possessed of a natural peculiarity which can be readily recognized in international intercourse, as in the case of minority or insanity, at least where these disabilities are patent. The view might be therefore supported that persons interdicted for prodigality may legally obligate themselves when out of the jurisdiction of interdiction ; regularly, however, the opposite is held. The prevailing opinion may be traced historically to Bartolus (No. 32), and Argentraeus. The following arguments have been advanced against it : — {a) that interdiction for prodigality is in the nature of a police regulation, which must be limited in its operation to the territory in which the decree is pronounced ; {b) that as the interdiction rests upon a judgment, the same rules must apply as govern the execution of foreign judgments. These reasons are not sound. Unless the limitation to the capacity to act arising from the interdiction be recognized inter- nationally, the protective purpose sought to be accomplished quickly comes to naught. Again, the judgment of interdiction is not an adjudication upon a relationship of private law between individuals, but a protective decree in the interest of the person about to be placed under curatory. French law does not contain provision for public guardianship for prodigality. It does not speak of "tutelle," but of "interdic- igo INTERNATIONAL CIVIL AND COMMERCIAL LAW tion" (Art. 489, C. civ.). The party may be interdicted solely upon the motion of his relatives (Art. 514, C. civ.) without need of the proceeding {conseil judiciaire) provided by Art. 513. A general incapacity to act does not follow from a " conseil judiciaire." 2. The main proposition as above stated applies also to Switzer- land, notwithstanding Art. 1O3, Fed. Stat. Pers. Cap. (§ 58, III, 3, supra), as Art. 6 of this statute, requiring publication of the decree of guardianship as against third persons, is not applicable to foreign decrees {A. E. xiv, pp. 342-343). Again, the message of the Federal Council expressly states that the alien remains subject to the law of his own country respecting the status. II. Some countries do not recognize a personal status in this regard, e.g. the United States. Reference may be made to Wharton § 122 : "A foreign decree of business incapacity based on the assumption that the party is a ' Verse hwender,' or spendthrift, is entitled to no extra-territorial effect." In view of explanations already given, the adoption of this feudal doctrine is not surprising. [English cases accord : Worms V. De Valdor, 49 L. J. Ch. 261 ; Atkinson v. Anderson, 21 Ch. D. 100. Trans. '\ III. France has adopted a neutral doctrine. In France, a foreign decree of guardianship by reason of prodi- gality is recognized without publication ; but an interdicted person may nevertheless make reasonable purchases in proportion to his means, without the assent of his guardian {^Journal de dr. i., xx, p. 860; xxii, p. 103). § 62. The Capacity to act of Insane Persons. v. Bar, i, pp. 424-425. I. According to the Continental doctrine, a decree of guardian- ship on account of insanity made by the law of the personal status will be recognized everywhere. I. Upon principle, the incapacity of lunatics is a natural con- dition, and as such must be recognized all the world over. If, therefore, an insane person (a furiosus, a mente captus, or a demens) undertakes a transaction abroad, it will be considered void. The condition as such causes the incapacity to result ipso jure, without the necessity of a public or judicial decree or a publication. LAW OF PERSONS IQI 2. Of course legislative provisions enact that curatory on account of insanity may take place only after respecting certain administrative formalities and, in more recent times, a judicial declaration of such condition is often required. It is not neces- sary to speak of this here. If a person has been placed under curatory at his place of domicile, or in his native country, it fol- lows that he becomes internationally incompetent. II. But even without an actual guardianship, transactions under- taken by an insane person are internationally void. The condition of an insane person is ostensible to all who exer- cise the degree of care required in the affairs of commerce. This is at least true normally. III. In doubtful cases the right is reserved to the domestic state to submit the question of insanity to an independent examination. Even a person of weak mind may have a will recognizable in law. Furthermore, the existence of insanity, notwithstanding its " establishment " by foreign decree, may be a question of much doubt. The medical conception of insanity and weakness of mind is often very different from that of law; both sciences have pur- poses and points of view of their own. Medical science has the cure in view, while jurisprudence asks whether the individual is in a condition to understand the purpose, scope, and significance of a legal transaction. It is for this reason that foreign conclu- sions cannot be blindly accepted. Where doubt of the insanity seriously exists, the place of sojourn or domicile is free to under- take a reconsideration of its existence. 2. Especially does the doctrine of England and America take this view, and correctly too. Wharton (§ 122) says, "A decree of lunacy, when entered by a foreign court, is from the nature of things open to impeachment for want of jurisdiction, for fraud, or for gross irregularity in the procedure." This is to be com- pared with the beginning of § 122, where it is said, "Patent lu- nacy is a notice to all parties of irresponsibility." In America and England " It is now settled in England and the United States that the appointment of a guardian of an infant or lunatic in one state 192 INTERNATIONAL CIVIL AND COMMERCIAL LAW or country gives him no authority and has no effect in another, except so far as it may influence the courts of the latter, in the exercise of their independent discretion, to appoint the same person guardian, or to decree the custody of the ward to him " (Gray C.J. in Milliken v. Pratt, 125 Mass. 374). The tendency of modern statutes and decisions, however, is to defer to the law of the domicile and to support the authority of the guardian appointed there (Hoyt v. Sprague, 103 U.S. 613, 631 ; In re Gar- nier, L. R. 13 Eq. 532; Nugent v. Vetzera, L. R. 2 Eq. 704. See also § 2326, New York Code of Civil Procedure.). § 63. The Capacity to act of Married Women. V. Bar, i, p. 421. I. A general incapacity of married women to act must be dis- tinguished from an incapacity resulting from, their legal position with reference to the marital estate. I. It can be said that the incapacity of married women to act is referable to two sources : — (a) the position of females in society, especially when married ; {b) the regulation of their rights in respect of marital property. The law of marital property regulates the question in how far a married woman is dependent upon her husband in dealing with her own fortune. In regard to her incapacity to act generally, the question is whether a transaction performed by her is valid (v. Bar, i, p. 520). The limitation of the wife in regard to her capacity to act is the result of law governing family relationships. The Court of Appeal of the canton of Zurich thought that the subject belonged, without reserve, to the law of marital property, which, according to Swiss law, is governed, in respect of the rights of third persons, by the law of the domicile for the time being. If, therefore, a foreign married woman {eg. an American), while on a tour in Switzerland, enters into legal relations, the law of the husband's domicile will govern (Codmann v. Fischl, " Handelsrechtl. Ent- scheid." viii, pp. 61-62). The Federal Court, on the other hand, held {A. E., xx, pp. 652-653) that the following questions must be determined separately : — LAW OF PERSONS 193 (a) whether relations entered into by the wife without the hus- band's consent are invalid merely because of a right of the husband to the estate of the wife ; (^) of their invalidity on account of the wife's incapacity to act. And this conclusion is entirely correct. 2. A different legal situation is presented as to widows and unmarried females of full age, in jurisdictions where the curatory for sex has been removed. II. Countries which support the lex fatrice unconditionally upon status, consider the entire legal position of married women in international matters to be dependent upon the law of their native state. By virtue of marriage, the wife acquires the citizenship of the husband, according to the almost universal conception. As a rule she also becomes major (Art. \^, Swiss Fed. Stat. Pers. Cap. ; contra, e.g. in Austria). It follows from the principle above stated that without regard to the law of the domicile or sojourn, a married woman is : — (a) competent everywhere if she be so according to her lex patriot ; (b) incompetent or limited everywhere if she be so according to her lex patricB. Alien married women will therefore be found sometimes in the former, sometimes in the latter, position. 1. If a married woman be considered as under the guardian- ship of her husband, we may say that her position with regard to her capacity to obligate herself is the same as that of any other ward. 2. The reliance of a married woman upon the defence of Senatus Consultum Vellejanum {pi the Roman law) is permissible abroad, if the law of her own country recognizes this defence. It amounts to a disability to act in particular cases {e.g. suretyship). 3. A married woman may require judicial authorization for certain acts {e.g. French C. civ., Arts. 215-217). This limitation will also be respected abroad. Conversely, the free hand of a married woman will be recog- nized, although the law of the place of the transaction provides for an incapacity, or limitation, provided the lex patrics does not. 4. On the other hand, a wife separated from bed and board is 194 INTERNATIONAL CIVIL AND COMMERCIAL LAW not under the authority of the husband. The authority ceases when the wife no longer cohabits with the husband. This is clearly expressed by the French Act of February 6, 1893, which gives to the wife her complete "capacity civile." Compare W. Cahn, " Das Reichsg. iiber die Erwerbutig imd den Verlust der R. und Staatsangehdrigkeit," 2d ed., p. TJ. A French married woman, separated from her husband, may even change her nationality without his consent {Journal de dr. i., XX, pp. 1 135-1138). In Austria, too, marital authority ceases with separation from bed and board. Compare Rittner, " Osterr. Eherecht'" (Leipzig, 1876), p. 333; Krainz-Pfaff, "System des osterr. allgem. Privatrecht" (Vienna, 1889), ii, p. 311 ; Anders, " Familietireckt" (Berlin, 1887), iii, p. 26. Separated and divorced women are subject to separate jurisdiction. This is the effect of the Austrian Rules of Civil Jurisdiction of 1852 (§ 19), which have been continued by the Rules of August i, 1895 (§ 70), in effect since January i, 1898. Of special importance are also the provisions of the Austrian Naturalization Act of December 3, 1863, which is still in force. § 1 1 provides : — " In changing naturalization, the wife follows the husband if not divorced by law. " Legally divorced or separated married women retain the nat- uralization which they had at the time of the divorce or separation." From this is deduced a right in the divorced wife to acquire a separate naturalization (see Rittner, supra). III. In countries which support the principle of domiciliary law in regard to the status generally, married women are liynited in their capacity to act to the extent of that law only. IV. Special rules of law are applicable to tradeswomen. This applies also to their status. Statutes which are of importance in this connection are : — 1. Art. 73, Introd. Act, German Civil Code (see supra, § 58, HI, I). 2. Art. 1O3, Swiss Fed. Stat. Pers. Cap. (see supra, § 58, III, 3). In America and England In determining the status of a married woman, we note again that, although the courts express the doctrine generally in terms of LAW OF PERSONS 19S the domicile, they are far from applying it throughout in practice. Of course, where the act occurs in the country of domicile, it is governed by that law (Miller v. Campbell, 140 N.Y. 457; Bradley V. Johnston, 46 NJ. L. 271 ; Cooper v. Cooper, 13 App. Cases 88, 108 [opinion of Lord Macnaghten]). But where the act was per- formed in a country or state different from that of the domicile, the American decisions are almost uniform in applying the lex loci actus (JAzMi&y v. Ball, 66 111. 250; Musson v. Trigg, 51 Miss. 172 ; Graham v. Norfolk Bank, 84 N.Y. 393 ; Evans v. Cleary, 125 Pa. St. 204; Milliken v. Pratt, 125 Mass. 374). States which still retain the system of the old common law, involving a total inca- pacity to contract on the part of married women, do not defer to the lex loci actus, however, where a married woman domiciled in that State, enters into obligations abroad (Armstrong v. Best, 112 N.C. 59; Baum v. Birchall, 150 Pa. St. 164). In England, on the other hand, a married woman domiciled in France has been held capable of making a contract upon English territory, for which she was incapacitated according to the law of England, but for which she was capable by French law (Gu6- pratte v. Young, 4 De G. & S. 217). Perhaps there is also a basis for making a distinction in these Jurisdictions, similar to that made by Swiss law {supra, § 58, III), between transactions which are strictly mercantile and those which are not (see Story, § 82 ; Dicey, p. 547). § 64. Suggestions for Legislation in regard to the Status of Natural Persons. I. It was early recognized that an exclusively uniform status in intematiottal matters leads to unfairness and injustice. 1. For this reason the policy was favored of subjecting aliens sojourning in the internal state to the operation of the local laws. Hugo Grotius, in his work, " De jure belli ac pads " (ii, ch. xiv. No. 2), lays down the following : " Qui in loco aliquo contrahit tarn- quam subditus temporarius legibus loci subjicitur." This, as we have seen, is still the law of England and America, and, within certain limitations, that of Germany and Switzerland. 2. Art. viii of the proposed law of the French National Con- vention (1793) contained the following : — 196 INTERNATIONAL CIVIL AND COMMERCIAL LAW "Aliens, during residence in France, are subject to the laws of the Republic ; they are capable of all such transactions which these permit ; their persons and their property are under the protection of the laws." 3. The proposal of the 24th Thermidor of the year 8 {titre iv, " des effets de la loi") contained the following: — ■ {d) "Art. I, § 4. The laws are expressly controUing upon those who inhabit the territory ; the alien is subject to them during his residence, in respect of property possessed within the same, and of his person." (F) "Art. I, § 5. The French citizen residing in a foreign country continues subject to French laws for such property as is located in France, and in respect of everything touching his status and personal capacity. " His movable property, like his person, is governed by French law." II. The Itistitute of International Law has repeatedly considered the question before us. Its activities have been especially directed tozvard tempering the influence of the lex patrice npon the status. The final conclusions of the Institute refer only to commercial law. I. The followring principle was laid down at Oxford {Annu- aire, v, p. 57): — " The status and the capacity of a person are governed by the laws of the state to which he belongs by nationality. " When a person has no known nationality, his status and his capacity are governed by the laws of his domicile." At the session of the Institute in 1882, von Bar proposed the following propositions {Anmcaire, 1883, p. 49): — " I. Personal capacity, even in commercial matters, is governed by the national law of the party. " 2. Provided, however, that if a party (or his successor) has acted in good faith, the contract (or act of purchase) shall be valid as far as is determined by personal capacity, if it would be so con- sidered according to the law of the place of contract. "3. In commercial matters, national law is replaced by that of the domicile in regard to everything which can be controlled by the free disposing power (or will) of the parties. " 4. For the acts and contracts made by a commercial entity of a foreign country, the law of the place where it was created is to be deemed the law of the domicile." LAW OF PERSONS 197 Goldschmidt favored the following amendments : — " I. The capacity of the person in commercial matters is gov- erned by the law of the domicile of tlie parties. " 2. Provided, however, that the contract shall be valid as far as concerns personal capacity, if it would be such according to the law of the place of contract." Finally, von Bar, in his large work (i, p. 400, note 36), proposed to add in Art. 2, after the words "in good faith," the words "and without gross negligence." 2. The Institute of International Law, at its session in Lau- sanne, 1888, resolved that a modification of the rule of lex patria was required, at least in regard to commercial relationships {Anniiaire, 1888-89, PP- 103-104). The resolution is to the following effect : — "Art. I. According to the principles adopted at Oxford, the capacity of a person in commercial as in civil matters is determined by his national law. "Art. 2. Nevertheless in commercial matters a petition of recision based upon the incapacity of one of the parties may be denied, and the act considered as valid, by applying the law of the place where it occurred, provided the other party prove that he was led into the error by the person incapacitated or (in the discretion of the judge), by a course of peculiar circumstances." III. A peculiar proposal was made by Westlake {Annuaire, 1888-89, P- ?>^)-- — " Personal capacity, even in commercial matters, is governed by the national law of the party ; provided, however, that if the party has reached twenty-one years of age and the opposite party has acted in good faith, the law of the place where the contract was made shall be applied with reference to personal capacity.'' The idea of adopting a normal majority as here recommended is certainly worthy of respect, but it is at least arbitrary to the extent that it favors the age of twenty-one. IV. Laurent favored the readoption of the old professio juris into modern law. In Art. IS of his proposed Belgian Code, the following is suggested : — " The alien making contracts in Belgium must declare his per- sonal status and the incapacity he is subject to, if any. In default 198 INTERNATIONAL CIVIL AND COMMERCIAL LAW thereof, third parties dealing with him can demand the application of Belgian law, provided they have acted in good faith. " When the parties execute a written agreement in Belgium {acte authentique) , the notary must, upon his own responsibility, demand that they state whether they are aliens, and if so, their status." This idea seems good theoretically, though rather inconvenient in practical life. V. Such limitations upon the capacity to act as are founded upon special individual circumstances, and which in the regular course of things cannot be known to the other contracting party unless specially informed of them, have no extra-territorial effect. 1. With regard to wards. There is no doubt that parties who have contracted with wards and who have been deceived not purely through their own dis- ingenuousness {^"vana simplicitate," lex 3 de Senatusc. Mac. 14, 6) should be protected when not aware of the decree of disability. Their good faith is here preferred to the general principle of personal status, but only when they could not, or must not, have concluded from the whole trend of the business, or from the sur- rounding circumstances, that they were dealing with a ward. The idea expressed by the Institute would thus be properly put into practice. Compare also Journal, ii, p. 20: "A decree emanating from a foreign jurisdiction establishing a special incapacity of an individual with regard to the disposal of his property, can only have effect within the state wherein it was decreed ; it is without influence upon contracts executed outside the territory of that state, especially with reference to immovable property located in France." 2. With regard to the insane. Questions which suggest themselves for legislative determina- tion are : — {a) whether third parties may enforce obligations entered into by the individual in question, when they do not know and could not be expected to know of this incapacity prior to an official decree ; (3) whether an incapacity may be predicated when the person in question has so conducted himself after the official decree, that the other party, without negUgence on his part, failed to recog- nize the condition. LAW OF PERSONS 199 In both these cases it would seem that the transaction should be supported in the interest of bona fides in international inter- course. The liability of the guardian may also come into question, when, for instance, he permits the lunatic to go at large and fails to provide for his confinement. (?> Eheschliessung," in Zeitschrift fur internat. Privat- und Strafrecht, x, I ). 3. The Italian law provides (Art. 102, Cod. Civ.) : — " The capacity of ahens to contract marriage is determined by the laws of the country to which they belong. " The ahen is, however, subjected to such disabilities as are pro- vided in § 2, chap, i, of this title." Accordingly, an alien marrying in Italy is subjected to the lex patricB in regard to his capacity, although by the rule cited he is also subject to Italian law upon the question of certain disabilities. Thus, for instance, even though he has reached the age of marriage according to the lex patrice, he cannot marry if he has not reached the age fixed by the law of Italy. This is a rather extreme limitation. II. A completely contrary standard is set up by the law of Eng- land and America; here the capacity to marry and its form of solemnization is governed by the law of the place where the marriage is performed. 1. In the United States, the conception of marriage is terri- torial. The doctrine of a natural right to marry prevails. Whar- ton (§ 165) attempts to bring the territorial standard into harmony with the Continental European doctrine upon status, in that he re- fers to the well-known limitation upon the application of foreign law : " By the codes of their states (France, Italy, Belgium) the personal law of foreigners does not operate when conflicting with territorial public order and good morals. And nothing so closely concerns pubHc order and good morals as the conditions of the marriage tie." 2. The territorial point of view also prevails in England, although since 1877 the law of domicile has been given more and more effect (Westlake, "Treatise," §21; Dicey, "Le statut per- LAW OF THE FAMILY 221 sonnel" ii, pp. 1-5). The tendency to change has been brought about by marriages performed abroad between English subjects and their deceased wives' sisters. 3. In the United States it is declared that a marriage validly entered into according to the law of the place where it was per- formed, is valid everywhere; accordingly, neither the national nor the domiciliary law is referred to. An " agere in fraudem legis domestic^ " is not taken account of. [The draft of the American Bar Association, however, contains a provision invalidating mar- riages entered into abroad in order to avoid the domestic law (4 Cohimbia Law Review, pp. 243, 246). — Trans. \ Kent (" Commentaries on American Law," 12th ed., by Holmes, vol. ii, p. 92) says : — " As the law of marriage is a part of the/w gentium, the general rule undoubtedly is, that a marriage, valid or void by the law of the place where it is celebrated, is valid or void everywhere." Atp. 93: — " The principle is, that in respect to marriage, the lex loci con- tractus prevails over the lex domicilii, as being the safer rule, and one dictated by just and enlightened views of international juris- prudence." And further : — "... it was held that the marriage must be deemed vaUd, if it be valid according to the laws of the place where it was con- tracted, notwithstanding the parties went into the other state with an intention to evade the laws of their own. It was admitted that the doctrine was repugnant to the general principles of law relating to other contracts; but it was adopted in the case of marriage, on grounds of policy, with a view to prevent the public mischief and the disastrous consequences which would result from holding such marriages void." 4. A similar doctrine is contained in the Argentine statute relating to civil marriages. Art. 2 provides : — The validity of a marriage to which there are no impediments as provided by §§ 1-6 of Art. 9 shall be judged within the territory of the Republic by the law of the country where it was performed, even though the parties left their domicile in order to escape the conditions as to form provided by its laws. 222 INTERNATIONAL CIVIL AND COMMERCIAL LAW III. Some exceptional systems. 1. The system of law prevailing in Russia contains an ex- treme doctrine of national law. Marriages of orthodox Russian subjects, even when performed abroad, must comply with all the requisites of the orthodox Greek Church. In order to meet this provision, the Hague treaty upon marriage was so drawn as to permit the rule to remain in force on Russian territory. This con- cession did not suffice, however, as Russia demands that unless it is in compliance with its laws, the marriage shall be regarded everywhere as invalid. It therefore has not joined the convention (see Art. 5, Appendix I). 2. Art. 3 1 of the Swiss Fed. Stat, upon Civil Relations provides as follows : — " If the bridegroom be a foreigner, publication of the banns may only take place upon presentation of a certificate by the competent foreign official recognizing the marriage with all its results. "The cantonal governments are empowered to dispense with this provision, and to replace this certification, if lacking, by some other appropriate regulation." The effect of this is that an alien male cannot be married in Switzerland unless his native country issues a certificate satisfying the statute. Cantonal dispensation is seldom granted. Most of the countries of Europe grant certificates satisfying the statute, but England and the United States do not, as there are no officials competent to do so. IV. Legislative reflections. To make the question of the capacity to marry dependent solely upon the law of the place where the parties happen to be, or to which they momentarily go for the purpose of marrying, certainly has the advantage of simplicity. Its advisability is doubtful, how- ever, especially in view of the precedent of Gretna Green, or Scotch marriages. B. The Form of the Marriage Ceremony The maxim " locus regit actum " generally applies to the form of marriage ceremonies. There are exceptions to the rule, however, as a particular religious ceremony is regarded in some countries as an indispensable requisite for the validity of a marriage. LAW OF THE FAMILY 223 1. Austria demands that marriages of subjects shall be per- formed according to the laws of the church to which the parties belong. 2. Russia and Greece do not recognize a civil marriage of their orthodox subjects unless followed by a religious ceremony of the orthodox Greek Church {Bulletin de la Soc. de legis. comparh, xxvii, 1896, p. 164). C. The Effects of Marriage The determination of the scope and effect of the relations created by marriage is governed by the personal law of the husband. 1. The laws are objectively binding in regard to these questions ; it does not lie within the free will of the parties to regulate the effects of the union. The widow and the divorced wife are subject to the personal law of the deceased or divorced husband, so far as concerns the right to enter into a new marriage (especially before a prohibitory period has expired) unless territorial rules otherwise provide. 2. The principle has only seldom been expressed by statute. {a) The Argentine law upon civil marriage provides in Art. 3 : — " The personal rights and obligations of the spouses are gov- erned by the laws of the Republic as long as they reside upon its territory, no matter where the marriage may have been contracted." ih) The International Conferences of The Hague have elaborated a draft upon the effects of marriage upon the status of the wife and children born before the marriage {Actes, 1900, p. 230). D. Consular Marriages Z. Stocquart, " Le privilege d'exterritorialite specialement dans ses rapports avec la validite des manages ciUbres d. Vambassade ou au consulate'' in Revue de dr. i., XX, pp. 260-300. MarioUe, in Archiv fur das offentliche Recht, xiii, p. 459. I. Among the requisites required for a consular marriage are the following: — (a) that the consul be empowered to perform the marriage by the law of the native country of the parties ; (i5) that the parties, or at least one of them, belong to the country which the consul officially represents. 224 INTERNATIONAL CIVIL AND COMMERCIAL LAW In countries where only religious marriages are permitted, it is often impossible for aliens to get married, except by consular inter- vention, because they do not belong to the particular faith obtain- ing there. Consular marriages are also necessary where the civil marriage of the foreign state would not be recognized in the home country. 2. Some states do not recognize marriages performed on their territory by foreign consuls. To this class belong : — (a) Germany; (J>) Switzerland. In America and England Capacity to Marry. — The rule followed in the United States as to the capacity to marry is strictly territorial, and determines capac- ity by the law of the place where the marriage is celebrated. It follows that when foreigners marry in America, who are capable according to the local law, though incapable according to their own personal law, their marriage will not be invalidated by such inca- pacity, even though the parties intentionally left their own Juris- diction to avoid its laws (Medway v. Needham, i6 Mass. 157; Van Storch V. GrifHn, 71 Pa. St. 240; Simons v. Allen, 33 111. App. 512; Moore v. Hegeman, 92 N.Y. 521). England, on the other hand, regards the capacity of the parties as a matter governed by their personal law. This accords with the Continental rule, it being remembered, however, that the standard of personal law is, in England, the domicile (Sottomayor v. De Barros, 3 P. D. i ; Brook V. Brook, 9 H. of L. Cases, 193). The converse of the American rule, to wit, that "where our own citizens, capable of marriage by our laws, marry abroad in a foreign country where they would be incapable of marriage if subjects, we will hold that such incapacity will not prevent us from recognizing their marriage as valid," has been maintained by Wharton (§ 127). But he cites no cases to support his theory, and there is, in fact, some authority to the contrary (/« re Hall, 61 App. Div. N.Y. 266; Webster v. Webster, 58 N.H. 3; Simonds v. Allen, 33 111. App. 512). The English rule, on the other hand, is applied both ways (Sottomayor V. De Barros, supra). Form of the Marriage Ceremony. — In both Jurisdictions the form of the marriage ceremony is governed by the rule of " locus LAW OF THE FAMILY 225 regit actum." But the rule is limited to the case of Christian mar- riage, and is not to be extended to ceremonies such as are in use among savage or unchristian races. The term "Christian mar- riages" does not refer to any particular religious ceremony, but implies a contract, the effect of which is to bind one man to one woman exclusively (Brinkley v. Atty.-Gen., 1890, L. R. 15 Prob. Div. 76 ; Bethel v. Bethel, L. R. 38 Ch. Div. 220 ; Roche v. Wash- ington, 19 Ind. S3 ; Meister v. Moore, 96 U.S. 76). The rule is not necessarily imperative in regard to marriage. It is optional, at least where it is impossible to use the forms pre- vailing at the place of celebration, or repugnant to the religious convictions of the parties, or where these forms are not imposed on foreigners Ijy the state prescribing them. In such cases, if the personal law of the parties recognize a consensual marriage, or marriage fer verba de prcesenti, the marriage will be considered valid, even though not conforming to the forms of the place of cele- bration (Raynham v. Canton, 3 Pick. 297 ; Hynes v. McDermott, 82 N.Y. 41, 91 N.Y. 451 ; Redgrave v. Redgrave, 38 Md. 93). As to the law in England, the rule was stated by Lord Eldon as fol- lows, " When persons are married abroad, it is necessary to show that they were married according to the lex loci, or that they could not avail themselves of the lex loci, or that there was no lex loci " (Cruise on Dignities, 276 ; see also Ruding v. Smith, 2 Hagg. 390 ; Lloyd V. Petitjean, 2 Curt. 251 ; Este v. Smyth, 18 Beav. 112, 23 L. J. Ch. 705). Formalities which do not affect the capacity of the parties as inherent in themselves, as, for instance, the consent of the parents, are considered part of the ceremony and hence gov- erned by the lex loci (Simonin v. Mallac, 2 S. & T. 6^, 29 L. J. (P. & M.) 97). Effects of Marriage upon Property. — See § 75, Supplement, infra. Consular Marriages. — By act of Congress (U.S. St. at Large, i860, § 31), consuls and consular agents are authorized to validate marriages solemnized in their presence by " persons who would be authorized to marry if residing in the District of Columbia." By instruction of the State Department, consuls are now forbidden to perform marriage ceremonies, and though in practice still " vali- dating " marriages performed in their presence by the issuance of a certificate, the act has no effect upon the validity of the marriage Q 226 INTERNATIONAL CIVIL AND COMMERCIAL LAW except in respect of citizens of the District of Columbia, as mar- riage is a municipal institution under the control of the States, so far as their own domiciled citizens are concerned. The English statute of 1892 (54 and 55 Vict. c. 74) empowers ambassadors and consuls to perform marriages abroad in certain cases ; but a statute of the British Parliament cannot make these marriages valid in the country where they are celebrated, and the necessity of passing statutes to legalize them in England is an indi- cation that the extra-territoriality doctrine on which they rest was not recognized at common law. A committee of the American Bar Association has elaborated a draft statute for the recognition of consular marriages where one of the parties is a citizen of any State or territory, with the recom- mendation that it be enacted by all the State legislatures (4 Colum- bia Law Review, 1904, pp. 243, 246). § 73. The Treaty upon Marriage elaborated by the Hague Conferences. Guillaume, Le mariage en droit international privi et la Conference de la Haye (1894). Lain^, in Journal de dr. i., xxi, p. 5 ; xxii, pp. 465, 734; rgoi, xxviii, pp. 5, 13- 35, 231-253. Rapport de Renault, Actes, 1900, p. 166. Keidel, '■'■Das international Eherecht, etc.," in Zeitschrift fur iniernat. Privat- und Strafrecht, vii, pp. 228-244. The Hague International Conferences elaborated a treaty "to regulate the conflicts of law in regard to marriage." It has been already ratified by seven European nations, and indications have been given that others will also ratify it (see § 5, II, sttpra). Its provisions are printed in French and English at Appendix I. I. The treaty makes the ■national law govern the capacity to ■marry. As a result, the internal legislation of those nations which have limited the application of this rule in other ways than the treaty has done will be superseded within the treaty union. II. The treaty limits the general principle in a number of ways. I. If the national law regards a marriage as valid, if entered into according to the lex domicilii or the lex loci celebrationis, the requisites set up by the national law itself need not be complied with. LAW OF THE FAMILY 22/ 2. If the place of celebration forbids marriages within certain degrees of consanguinity, aliens will not be permitted to be mar- ried there, even though the national law would have permitted it. This provision is a rational limitation of the lex patria. The Conferences have also provided for a practical means of reference to the lex patricz {Art. 4). That is to say, proof of native law may take place either through certificate of the home officials, or of their diplomatic representatives ; but even this may be modi- fied so as to permit of baser means of proof, such as the mere oath of the party, provided the state wherein the marriage is to be cele- brated is satisfied therewith {e.g. law of Denmark). The proposed treaty further' declares that every marriage must be recognized which was entered into according to the laws of the country where it took place. But a reservation is immediately added for those countries which demand a religious celebration. In addition, the provisions existing by the lex patrice for the publi- cation of banns must be observed ; though if not, the marriage is not necessarily void outside of the national state. III. The treaty suffers from its too considerable limitations and reservations. § 74. The Law of Marital Property. V. Bar, i, p. 505. Ricaud, Des rkgimes matrimoniaux au point devue de droit international privi (Paris, 1886). G. Pellis, Du rigime matrimonial des ipoux maries sans contrat ett droit inter- national privi (Lausanne, 1893). K. Hasler, Z?aj eheliche Guterrecht im internationalen Privatrecht (Zurich, 1897). I. In general. I. The primary question is whether the law of the domicile or of nationality shall govern ; or should a combination take place, as, for instance : — {a) that the law of the first domicile shall govern the relations of the spouses inter se; and {B) that the law of the momentary domicile shall apply as against third persons. It is important to determine whether antenuptial or postnuptial contracts between the spouses shall be accorded recognition inter- nationally. 228 INTERNATIONAL CIVIL AND COMMERCIAL LAW 2. In general it may be said that the provisions with regard to marital property are closely allied with national customs and dispo- sitions, and that, therefore, the lex patricz may be looked upon as the rational standard in the first instance ; by this is meant the law of the husband's nationality. The view is a rational one, especially when we remember that the husband has the choice of the domi- cile, and the national standard is therefore a check on too sudden an alteration of the property rights of the spouses. 3. Thus the important question in international Hfe is whether the relations of the spouses as to property shall be altered by a change of domicile. Even MoHnseus was engaged with this qucestio famosissima ; contrary to Argentraeus, he took the stand that even in the absence of a formal agreement, there was a tacit submission on the part of the spouses to the law of their domicile. 4. Arguments in favor of the lex patria and the changeable- ness of the law of marital property are as follows : — {a) that it is necessary in order to preserve the interests of the wife, otherwise they would be sacrificed to the husband's arbitrary will in his choice of domicile ; (/5) that their rights of property are partly determined by the law of succession ; {c) that it has the advantage of certainty and permanency. 5. In favor of domiciliary law and changeableness it is argued : — (a) that public credit requires that all persons maintaining a house- hold at a place shall, in general, be subject to the same local law; {P) that the national standard is impracticable, as it requires third persons to keep in mind all the various systems of marital property. The latter reasoning undoubtedly influenced the proposed treaty of Lima (Art. 15), and also that of Montevideo (Art. 12). 6. Another method is to reconcile the two systems by settling accounts, as it were, before the change of domicile. This is the solution to be found in Argentine and in Louisiana. But it does not recommend itself in practice. 7. The doctrine of uniformity is theoretically correct. It is diffi- cult to observe in practice, however, as even the nationality may change. LAW OF THE FAMILY 229 8. Much weight has been given to the law of the first domicile of the spouses ; the act of settling there is taken as a tacit indica- tion of the law which shall henceforth control. The first matri- monial domicile is that at which the spouses reside immediately- after marriage. Where, for business reasons or differences be- tween the spouses, the wife lives separately immediately after mar- riage, reference would eventually be made to the residence of the husband {N. &■ A., Art. 19). Difficulties may arise in fixing the first matrimonial domicile, e.£^. where the spouses reside after marriage in a certain state for only a short time and then choose another domicile. If the new domicile was intended as such from the beginning, it ought to pre- vail as the matrimonial domicile. II. TAe rules prevailing in various countries. I. Italy The national law governs without limitation here {Disposizioni, Art. 6: " rapporti di famiglia"). There is no distinction made between : — (a) Italians domiciled in foreign countries ; and (b) aliens domiciled in Italy. 2. Germany Germany also supports the doctrine of national law (Art. 15, Introductory Act), both in regard to : — {a) Germans domiciled in foreign countries ; and to (F) aliens domiciled in Germany. But in case the national state itself does not support this principle, but that of domiciliary law, or any other system which would make German law appli- cable, German law will govern (Art. 27). Art. 7, however, does not apply (see supra, § 58, III, i), and therefore the capacity to act of the spouses is governed by the lex patria. Art. 16, Introductory Act, provides that § 1435 of the Civil Code shall apply to foreign spouses and to those who have acquired Ger- man citizenship since their marriage. This section of the Civil Code provides that if the right to the management or enjoyment of the marital estate by the husband has been taken away or altered by a marriage contract, the fact must either be known by third parties dealing with him, or else be registered in the register of 230 INTERNATIONAL CIVIL AND COMMERCIAL LAW marital estates of the competent court, in order to be effectual as against such third parties. 3. France The national law is not wholly disregarded, but in practice the courts tend to spell out a tacit contract between the spouses for the application of French law, whenever they have long been domiciled in France (^Journal de dr. i., xii, p. 558; " Zeitschrift fur internat. Privat- und Strafrecht" v, p. 66\ In other words, the property relations of foreign spouses is determined in France by the intention of the parties as proved. In this way the national law may also come to be taken as the standard. Conversely, French spouses married in a foreign country and residing there for a long time are considered subject to domiciliary law if there are no special reasons to the contrary {^JourTial, xxviii, 1901, pp. 354-357). It will also be considered permanently appli- cable. A French woman, acquiring foreign citizenship by marriage to a foreigner, cannot lay claim to the application of the system of common property prevailing in France (communauti Ugale) merely because the marriage was celebrated in the Orient, where the husband had submitted himself to French protection {id., P- 356). A hypotMque Ugal, or mortgage by operation of law, given to married women and wards in France upon the property of hus- bands and guardians, is not recognized in favor of alien married women or alien wards, unless the right has been extended to them by treaty, or their national law itself contains the same institution {Journal, xxiii, p. 344; xxvii, p. 321 ; Roguin, " Conflits," No. 135). It is a "civil right," as this term is understood in France, and therefore it is not accorded to aliens (Art. 11, Civil Code). Neither does the mortgage extend in favor of French women or French wards to immovables situated in a country where the system does not prevail. Vareilles-Sommi^res (ii, p. 330) states that there is a unanimity of opinion on this point. A difficult question, however, is whether the inalienability of the dower as provided by French law will accompany a French married woman everywhere as part of her status. Vareilles-Sommieres (ii, p. 330) maintains that although it is part of her personal law, it will not apply to property situated in a country which permits it to be LAW OF THE FAMILY 23 1 alienated ; for this would contravene the purpose of the latter state to make such property subject to the uses of commerce. 4. Argentine The Statute upon Marriage provides as follows : — " Art. 4. The marriage contract governs the property of the spouses, no matter what be the law of the place where the marriage was celebrated. " Art. 5. In the absence of contract, if the matrimonial domicile has hot been changed, the law of the place where the marriage was celebrated governs the movable property of the spouses, wheresoever situated and wheresover acquired. If the matrimonial domicile has been changed, the property acquired before the change shall be governed by the law of the old domicile ; that acquired after, by the new. "Art. 6. Immovables are governed by the law of the place where they are situated." 5. Switzerland A sharp distinction is made between : — {a) the law relating to the spouses inter se ; and (U) the law governing their property relations as against third persons. The law of the first matrimonial domicile governs the property rights of the spouses inter se, during the whole period of the mar- riage (Art. 19, N. &• A.). The spouses may, however, make the law of a new domicile applicable by filing a joint declaration to that effect. The declaration requires official ratification (Art. 20). The same system of law governs also nuptial contracts. Where the rights of third persons are involved, the property relations of the spouses are governed by their law of their momen- tary domicile (Art. 192). It is clear that curious relations may result from the distinction. Thus, the spouses might be living under separate rights of prop- erty by virtue of the law of the matrimonial domicile, while at the same time the wife might be liable for the husband's debts under that of the momentary domicile. This is palpably unfair. Swiss spouses having had their first matrimonial domicile abroad are governed by their lex originis in regard to their prop- erty relations, unless the law of the particular foreign state is 232 INTERNATIONAL CIVIL AND COMMERCIAL LAW applicable by its own terms (Art. 3ij). When the spouses return to take up domicile in Switzerland again, their property relations, whatever they may have been, continue. They are permitted, however, to make the declaration (see supra) provided by Art. 20 and thus change their relations (Art. 31 3). § 75. The Law of Marital Property in America and England. The sharp separation of movables from immovables made throughout the private law of these Jurisdictions results here in de- termining the property rights of the spouses by different standards of law, according as they are in movables or immovables. The rights of the spouses in respect of movables is governed by the law of the first matrimonial dom,icile. Westlake says (§ 36): — " In the absence of express contract, the law of the matrimonial domicile regulates the rights of the husband and wife in the movable property belonging to either of them at the time of the marriage, or acquired by either of them during the marriage. By the matri- monial domicile is to be understood that of the husband at the date of the marriage, with a possible exception in favor of any other which may have been acquired immediately after the marriage, in pursu- ance of an agreement to that effect made before it." This was not always the standard. For a time, the place of celebrating the marriage was looked upon as authoritative, because the performance of the contract of marriage was regarded as hav- ing taken place there (Story, § 158). But this theory has been abandoned in both countries (Davenport v. Karnes, 70 111. 465 ; Collis V. Hector, L. R. 19 Eq. 334). In Gleitsmann v. Gleitsmann (1901), 60 N.Y. App. Div. 371, the parties were married in Ger- many, removed to Maryland, where they intended to establish their matrimonial domicile, and at the time of the action were domiciled in New York. The law of Maryland was held authoritative. Thus, as to property acquired before marriage, the rights of the wife have vested and cannot be affected by any subsequent act of the hus- band (Bonati v. Welsh, 24 N.Y. 157; Kendall v. Coons, i Bush (Ky.), 530). But when the matrimonial domicile has been aban- doned and a new one acquired, acquisitions subsequent to the change will be governed by the law of the new domicile (Davis v. Zimmermann, 6 Pa. St. 70; Clanton v. Barnes, 50 Ala. 260; Fuss V. Fuss, 24 Wise. 256). On the other hand, even though the LAW OF THE FAMILY 233 property has been acquired subsequent to the marriage, if it was acquired prior to the change of domicile and has vested in hus- band or wife according to that law, it will not be divested by removal to another state (Bond v. Cummings, 70 Me. 125 ; Kraemer V. Kraemer, 52 Cal. 302 ; Lichtenberger v. Graham, 50 Ind. 288). Marriage settlements are also governed by the law of the matri- monial domicile (Anstruther v. Adair, 2 M. & K. (Eng.) 513 ; Bank V. Lee, 13 Pet 107). The Supreme Court has decided that an antenuptial contract, valid according to the law of the matrimonial domicile where the property then was, will be binding against cred- itors and purchasers after the property has been removed to an- other state (De Lane v. Moore, 14 How. U.S. 253). A provision in a marriage contract making a system of law other than that of the matrimonial domicile authoritative has been held valid in England (Este v. Smyth, 18 Beavan, 112). There is an American decision to the contrary (Bourcier v. Lanesse, 3 Martin (La.), 587). A recent English decision goes so far as to say that " it is not necessary that there should be an express stipulation. It is sufficient if the court arrives at the conclusion that the parties in fact contracted with reference to some law other than that of the matrimonial domicile " (Cozens-Hardy, L. J., in In re Fitz- gerald, 1904, 90 L. T. Rep. 266, 270). The rights of the spouses in regard to immovables are, of course, governed by the lex rei sitcB (Besse v. Pollochoux, 73 111. 285). The property relations of the spouses, so far as they affect the rights of third parties with whom they have entered into obligations, are governed by the system of law authoritative upon the particular obligation on which the third party relies. Where the law of a foreign state provides that the expenses of the family are charge- able on the property of both husband and wife, a creditor whose obligation was entered into in that state, while the spouses were domiciled there, may rely upon the provisions of that law, in a state where such a liability does not exist (Matthews v. Dickinson, 1901, 73 N.Y. Supp. 190). § 76. Legislative Reflections upon the Law of Marital Property. I. The Institute of International Law proposed certain provi- sions upon the property relations of the spouses in its " Reglement" upon marriage and divorce (1888, Arts. 12-15). Art. 15 provides:— 234 INTERNATIONAL CIVIL AND COMMERCIAL LAW " A change of domicile or of nationality of the spouses or of the husband does not change the relations of the spouses, once they are established, saving the rights of third persons." 2. The government of the Netherlands proposed a draft treaty "concerning the effects of marriage upon the property of the spouses" (Aaes, 1900, p. 230). It was referred to the Hague Conference of 1900. Its committee proposed certain amendments, but no definite action has been taken as yet. It will probably be taken up at some future Conference. 3. I would suggest that where a contract has been executed, it should be taken as the primary standard both inter se and as against third persons, the contract to be interpreted by the national law of the husband. If no contract is executed, the national law of the husband should itself control. In both cases, a declaration should be filed and published by a registering official of the domicile, to the effect that the relations as established by the contract, or by the national law, is intended to govern. If this be not done within a certain period, the domi- ciliary law shall govern as against third persons. Their interests should be paramount. A property register for alien spouses is therefore advisable for recording, not only marriage contracts, but also the provisions of the national law. I would also put into practice the suggestion of the Institute upon capacity to act (see supra, § 64, ii, 2), viz. that if a party prove that he was led by either of the spouses into a mistaken belief that their relations inter se were the same as created by domiciliary law, he will be permitted to rely on that law, even though a marriage contract or the national law has provided other property relations. § 77. Divorce. I. In general. I. The complete dissolution of the bond of marriage {divortium) is granted by the laws of Germany, France (since 1884), Belgium, Netherlands, Denmark, Norway, Sweden, Switzerland, England, and the United States. It is not recognized by the laws of Austria, Italy, Spain, and Portugal, which accord only a separation de corps. In Russia, only religious divorce is recognized. In some countries there are institutions existing side by side with absolute LAW OF THE FAMILY 235 divorce. Thus, in Germany there is also a proceeding dissolving "the community of marriage." 2. The law of divorce is particularly complicated in interna- tional matters because : — (a) a decree of divorce, differing from other decrees, intends to and does effectuate a new legal relationship ; ip) it affects the status in the broader sense, and therefore there is a tendency to regard the national courts as alone competent ; (c) public policy is involved ; (d) the laws vary, not only in regard to the permissibility of divorce, but also in regard to the grounds of divorce. It is a general principle of the law that a married woman acquires the nationality of the husband ; this is true now even in Turkey, Holland, England, and the United States. The wife also follows the domicile of the husband. II. Whether aliens may maintain an action of divorce and the grounds variously established as authoritative. I. As a rule we may say that the internal state will grant a divorce to alien subjects only when it itself recognizes divorce as an institute of the law. In Italy alone, curiously enough, it has several times been declared that aliens domiciled there may be divorced if the per- sonal statute of the husband {lex patricB) permits of it. The Cour d'Ancona granted an absolute divorce to a German from an Italian woman who had abandoned him and gone to America. The opinion of the court, of date March 12, 1884, states: — " As divorce cannot be considered absolutely contrary to public order and good morals, it should be granted if the lex patrice permits it, as according to the Italian Civil Code, the relations of the family are governed by personal law." The most celebrated jurists of Italy protested against this decision (Pasquale Fiore, "Diritto int. priv." 3d ed., ii, No. 688). Fedozzi says {Journal de dr. i., xxiv, 1897, p. 499) that the case cited was the only case of its kind. Nevertheless a similar decision was again rendered by the Tribunal de Milan in 1887 {Journal de dr. i., xxvi, p. 409 ; Zeitschrift fiir internal. Privat- und Strafrecht, ix, p. 413). The court based its decision upon the decision of the Court of Ancona of 1884, and upon the opinion of Contuzzi 236 INTERNATIONAL CIVIL AND COMMERCIAL LAW (^"Diritto int. priv." pp. 167-169), and remarked that the view was " well established " in Italian law. 2. In all states, the laws relating to divorce, especially in regard to the grounds for divorce, are regarded as being of a strictly- coercive character {A. E., iv., p. 669). The Swiss Federal Court in the case cited says : — " From whatever point of view the (internal) law regards this matter, its provisions relative to an institution (divorce) the most important in its bearing upon human society, assume a character imperatively affecting public order, and therefore are exclusively binding upon the judicial authority of the state which has established them." 3. It has frequently been decided in France that actions of divorce by resident aliens may be beard before French courts, when any other forum, particularly that of the home state, is lacking to the parties {Journal, xx, pp. 370-374). In a divorce action brought by an Englishman it was said that it was a question of personal statute governed by the lex patrice even in regard to the grounds of divorce ; and that therefore the French courts could grant the divorce only if an English court would do so in a similar case {Journal, xxvi, 1899, pp. 360-363). 4. German law enacts two propositions : — {a) The question whether an action of divorce is maintainable is determined by the lex patrice of the husband. Art. 1 7, Introd. Act, provides : — " The law of that state shall be authoritative upon the disso- lution of the marriage, to which the husband belonged at the time of commencing the action." A divorce may be granted to alien spouses in Germany only when the foreign law recognizes the institute of absolute divorce. But the lex patrice will not be applied if it itself declares the German law authoritative (Art. 27, Imp. Ct., vol. 47, p. 136). (3) The question as to what grounds shall decide whether a divorce or separation of the community of the marriage tie shall be granted, is determined by Art. r 74, which states that the grounds relied upon must be recognized by both the national and the German law. It follows that the marriage of Austrians, Italians, or Spaniards, though domiciled in Germany, cannot be dissolved there. The institute of dissolving the community of the marriage tie LAW OF THE FAMILY 237 (§§ 1575-1576, German Civil Code) is not identical with separation from bed and board. It leaves the bond of marriage untouched, but a subsequent action may be brought later for absolute divorce. It is a divorce conditioned suspensively and potentially (Dec. of Imp. Ct, April 30, 1901). Under the provision of the German law {supra), subjects of Spain, Portugal, or Italy can neither be absolutely divorced nor can they demand the dissolution of the community; for this conception of German law, though similar, does not coincide with that of the separation de corps et de Hens. III. Upon the civil legal effects of a divorce, the law of that country is controlling which has jurisdiction to grant the divorce. This applies to the following questions : — 1. the control of the children and the conditions under which the parent may have the right to see them ; 2. the question of alimony and other contributions to the sup- port of the wife ; 3. the question of damages to the innocent party and the prohibition to remarry {Zeitschrift fur internal. Privat- und Straf- recht, ix, pp. 382-395); 4. whether testamentary rights, a mutual contract for succes- sion, or other benefits arranged by way of marriage settlement become inoperative where positive legislation does not otherwise declare. The Swiss Federal Statute regulating marriage provides : — " The further effects of the divorce or separation from bed and board, upon the personal rights of the spouses, their property rela- tions, training and education of the children, and damages to be awarded against the guilty party are governed by the law of the canton to whose jurisdiction the husband is subject." See also §§142 and 150, infra. In America and England Jurisdiction in matters of divorce is, in general, dependent upon the domicile of the parties at the time the action is commenced. It will be remembered that the legal domicile of husband and wife are identical, as that of the latter will follow the one chosen by the former. The older cases in England pointed toward a rule making the lex loci celebrationis authoritative, but this has now been abro- 238 INTERNATIONAL CIVIL AND COMMERCIAL LAW gated (Wilson v. Wilson, L. R. 2 P. D. 435 ; Shaw v. Gould, L. R. 3 H. L. 55 ; Watkins v. Watkins, 135 Mass. 83 ; Platts App., 80 Pa. St. 501 ; McShane v. McShane, 45 N.J. Eq. 341). Statutes in some of the States have enacted other grounds of jurisdiction besides that of the domicile of the parties. Thus, in New York (§ 1756, Code Civ. Proc), an action of divorce may also be maintained if the parties were married within the State, or if both were resident at the time the offence was committed. Where such statutes use the term " residence," it is usually construed to mean domicile (De Meli v. De Meli, 120 N.Y. 485 ; McShane v. McShane, cited supra). The statutes permit the wife to acquire such domicile separate from that of the husband for the purposes of the divorce (§ 1768, N.Y. Code Civ. Proc). But even in Eng- land, where no such statute exists, a separate domicile of the wife will be recognized if it be necessary to prevent the husband from taking advantage of his own wrong, provided such separate domi- cile be acquired in a country where the marriage has subsisted at some time or another (/« re Redding, 1888, Ct. of Sessions Reps., 4th ser., xiv, p. 1102 ; Deck v. Deck, 2 Sw. & Tr. 90). For other standards of jurisdiction, confer Supplement to § 43, supra. Notwithstanding that each State has the right to lay down such a standard as it pleases to give its own courts jurisdiction in mat- ters of divorce, it does not follow that the decree will be recognized in other States. Thus it is well settled that a divorce granted upon a residence short of a bona fide domicile will not be binding extra-territorially (Leith v. Leith, 39 N.H. 20 ; Coddington v. Cod- dington, 20 N.J. Eq. 263). The courts of New York have been especially strict in applying the rule (Wilhams v. Williams, 130 N.Y. 193 ; Cross v. Cross, 108 N.Y. 628 ; O'Dea v. O'Dea, loi N.Y. 23). English courts arrive at the same result by a different route. In a recent English case, it is decided that where the jurisdiction exercised is in accordance with the principles of International Law, the decree ought to be respected by the tribunals of every civilized country ; but where it is derived solely from some rule of the mu- nicipal law of the particular country, it cannot claim extra-territorial authority, if it trenches upon the interests of any other country to whose tribunals the spouses are amenable (Le Mesurier v. Le Mesurier, 64 L. J. P. C. 97). LAW OF THE FAMILY 239 The question of jurisdiction is of all importance in matters of divorce because, in America and in England, divorce is consid- ered strictly a matter of morals and national policy, and therefore each court is bound to regard its own legislation as supreme in determining the grounds for the action. This is in Une with the view supported by our author and other Continental authorities {e.g. Savigny), that the laws relating to divorce are of a distinctly positive and coercive character. See the remarks of Sewell J. in Barber v. Root, 10 Mass. 265, and Harvey v. Farnie, 42 L. T. Rep. 482. Actions to annul marriages are based entirely upon statute. In England, the court has jurisdiction to entertain a suit for the annulment of any existing marriage celebrated in England (Mat- rimonial Causes Act (20 and 21 Vict. c. 85); Simonin v. Mallac, 2 Sw. & Tr. 67). In America, the statutes do not usually contain special requisites for jurisdiction (^e.g. § 1742, N.Y. Code Civ. Proc), but the courts have in practice reached the same result as the EngUsh statutory rule. In Becker v. Becker (1901), 58 App. Div. N.Y. 374, it is said : — " Inasmuch as no reference is made to residence in actions to annul a marriage, while residence within the state of at least one of the parties is required in actions for the divorce (except in the one instance specified) and for separation, the legislature, in a carefully prepared and elaborated scheme of matrimonial action, intended, in actions to annul a marriage contracted within the state, to confer jurisdiction upon the courts to adjudicate as to the validity of the contract, irrespective of the residence of the parties." The Committee on Uniform State Laws of the American Bar Association has elaborated (1899) a draft for a uniform statute upon " Divorce Procedure and Divorce from the Bond of Mar- riage." It has not as yet been adopted by the legislature of any State (A. M. Eaton, " Reforms in Marriage and Divorce Laws," in Columbia Law Review, April, 1904, pp. 243, 252). § 78. The Swiss Law of Conflict in Matters of Divorce. An unsound solution of a conflict of law frequently produces results that are nothing short of bizarre. A most peculiar legal situation is presented by the Swiss system of divorce, and, as it is entirely unique, we discuss it under a separate head. 240 INTERNATIONAL CIVIL AND COMMERCIAL LAW I. In general. 1. The Federal Statute upon Civil Relations and Marriage accords a right to a divorce in favor of an innocent party upon certain grounds ; among others, for insanity if the insanity has continued for at least three years and has been declared incurable. There is also an action for divorce by mutual request under Art. 54. 2. An absolute right to a separation as distinguished from divorce is not given by the statute for any particular cause, but the judge may grant a temporary divorce, for not more than two years, within his discretion (Art. 47). 3. Switzerland does not recognize the institute of separation unlimited as to time, even for the subjects of those states in which it exists, and even though they satisfy the provision of Art. 56 to be mentioned hereafter (A.E., iv, p. 669). II. In particular. A. Divorce of aliens domiciled in Switzerland. Art. 56 of the Federal Statute upon Civil Relations and Mar- riage provides : — "An action for divorce or for annulment of marriage between aliens may be heard by the courts only upon proof that the country to which the spouses belong will recognize the judgment that may be issued." This provision arose primarily from a desire to provide a right of divorce in Swiss courts for alien residents, but seldom has there been a statutory provision which so entirely missed its purpose as Art. 56. I. The Swiss courts hold that a certificate of recognition from the foreign state is unnecessary, provided that it may be developed from the legislation and practice of that state that a divorce decreed at the domicile of the spouses will and must be recognized without a re-examination of the proceedings {A.E., v, p. 264; xv, p. 125; X, p. 483 ; Journal de dr. i., xxv, p. 291). In this way, Belgian sub- jects have been granted a divorce at Geneva {Journal, xxv, p. 191). On the other hand. Art. 56 is not complied with simply by ob- taining a certificate from a Swiss consul. The Swiss consul at St. Louis executed a certificate at the request of an American citizen (domiciled in Zurich) to the effect that, according to the laws in force there, no such declaration as Art. 56 requires can be obtained. It also stated " that if the plaintiff be divorced there (Zurich) upon LAW OF THE FAMILY 24 1 valid grounds, no one will be concerned about it here (St. Louis), and he may, without hesitation, enter into a new marriage if authorized by an official decree of divorce." The courts of Zurich properly decided that the proof required by the statute was not forthcoming. Neither will a general declaration by the embassy of the foreign state suffice, which declares that the judgment would probably be recognized {^Journal, xiv, p. 375). 2. The following countries refuse to give certificates of recog- nition as required by Art. 56 : — (a) France {A.E., iv, p. 668; Bundesb., 1884, ii, p. 743). (3) Austria {H.E., v, p. 156). (c) Russia will, under no circumstances, recognize the divorce of its subjects of orthodox Greek faith by foreign courts (Martens, va Journal, v, p. 142). (d) Servia (Bundesb., 1887, ii, p. 664). (if) Great Britain, as a declaration by the governmental authorities would have no binding effect upon the courts. (/) United States of America, for the same reason (see H. E., viii). {£) Italy, Spain, and Portugal do not recognize foreign divorces granted to their Catholic subjects. {K) Germany (^. ^., xix, p. 94 ; ^. -S., xxvi, pt. i, p. 219 ; Bundesb., 1 90 1, iii, p. 541). Art. 18 of the Introductory Act provides that foreign divorces shall be recognized only if grounds existed both according to the foreign and the domestic law ; as this fact can- not be certified in advance, the German government cannot comply with the requirements of the statute. Again, § 328 of the Rules in Civil Cases prevents recognition from being accorded > a foreign divorce in the event that foreign law, instead of Ger- man law, has been applied " to the detriment of a party." Formerly there was no forum provided by the laws of Ger- many for the divorce of German citizens domiciled abroad. This has lately been remedied by § 606 of the Rules in Civil Cases. 3. A suit for an absolute divorce after a temporary divorce has been granted is regarded as the bringing of an entirely new action. A new declaration must be obtained from the particular foreign state {A. E., x, p. 482). 4. As Art. 56 speaks of "marriages between aliens," it pre- supposes that both spouses are aliens. In Zurich, it has been decided that an action for divorce may be brought there by a Swiss woman against her husband, although he was domiciled in the United States and had become an American citizen by naturaliza- 242 INTERNATIONAL CIVIL AND COMMERCIAL LAW tion. It is true that this act also naturalized the wife, but her release from Swiss citizenship had not been decreed as required by Swiss law (see § 44, II, 2, supra). Neither is the competency of the Swiss courts dissolved because the husband has also brought an action for divorce in the United States. The Appellate Court of Zurich held that, notwithstanding the possibility of conflict, the jurisdiction of the home state must be guaranteed to every Swiss citizen {H.E., xviii, pp. 218, 232). B. Divorce of Swiss sitbjects domiciled abroad. I. Foreign decrees of divorce will not be recognized in Swit- zerland as between Swiss spouses, as the Swiss Federal Council regards Art. 43, Fed. Stat. Civ. Rel. and Marriage, as making the home forum exclusive {B., 1888, ii, p. 774, No. 27, p. 775, No. 28). The Federal Court has declared that Switzerland is under no legal duty to recognize foreign decrees of divorce (^A. E. xv, p. 126). Art. 43 provides : — " Actions for divorce and for the annulment of a marriage must be brought before the court of the domicile of the husband. " In the event of abandoning domicile in Switzerland, the action may be brought at the place of origin (citizenship) or the last domicile of the husband in Switzerland." The Federal Court, in its interpretation of Art. 43, stated as follows {A. E. XV, p. 126): — " Even if it be not true that Swiss spouses, though they be liv- ing abroad, are by law exclusively subject to Swiss jurisdiction in matters of divorce, yet Art. 43 does not provide that foreign decrees must be executed by the cantons." The commission of the Stdnderat (Fed. Senate) constituted to inquire into the condition of affairs apropos of an American decree of divorce which was refused recognition in Switzerland, expressed itself as follows {B., 1888, iii, p. 249): — "Without wishing to oppose, upon principle, this decision of the Federal Council, we must nevertheless express the wish that the same be not inalterable, and that the Council reconsider the matter in view of the difficulties caused to international relations and the hardship involved upon so many of our countrymen in America." The Civil Court of Bale has lately held that a divorce issued to Swiss spouses in Germany should be recognized in Switzerland, LAW OF THE FAMILY 243 and that Art. 43 did not establish an exclusive forum. Assuming that the officials of the civil bureau refused to register the divorce, still, the parties could remarry again in Germany, and these same officials might be compelled to enter two marriages of parties not divorced in the eyes of the Swiss law. This new picture of Swiss judicature brings to light a highly precarious situation {Zeitschrift fur internat. Privat- und Strafrecht, x, p. 86; see also B., 1897, ii P- 372). 2. The condition of law whereby foreign decrees of divorce between Swiss spouses are regarded as absolutely forbidden, is clearly unsatisfactory. It should be made possible to apply, inter- nationally, the method once adopted in the concordat of 1821, whereby the home state could, either by treaty or under the proper circumstances, delegate its jurisdiction. § 79. The Bauffremont-Bibesco Affair. Bluntschli, Deutsche Naturalisation einer separierten Franzosin und Wirkungen der Naturalisation. Beleuchtung einer Frage des internationalen Rechts (Heidelberg, 1876). De Mauro, Questione di diritto internazionale privato : se una donna francese separata di persona col tnarito pub farsi naturalizzare senza auiorizzazione inpaese straniero, in ispecie in Germania, e contrarvi un secondo matrimonio. Lettera al barone Holtzendorff (Catania, 1876). De FoUeville, Un mot sur le proces de madame la princesse de Bauffremont, aujourd^hui princesse Bibesco (Paris, 1876). C. F. Gabba, // secondo matrimonio delta principessa di Bauffremont et il diritto internazionale. Monitor e dei Tribunali, xviii. V. Holtzendorff, Der Rechtsfall der Furstin Bibesco {fruheren Fiirstin Bauffre- mont). Bin Gutachten (Munich, 1876). A. Stolzel, Wiederverheiratung eines bestdndig von Tisch und Belt getrennten Ehegatten (Berlin, 1876). A. Teichmann, Etude sur V affaire de Bauffremont, envisagie au point de vue des legislations frangaise et allema7ide (Bale, 1876). Rolin, Mhnoire pour le prince et la princesse Bibesco (Brussels, 1880). I. Of particular interest from the point of view of international coniiict is the case which arose from the naturalization of a sepa- rated French woman and her subsequent remarriage. The case attracted great attention at the time and led to an amendment of the law in France. The Countess of Caraman, a Belgian, was married to the French Prince Bauffremont. In 1874, the French courts granted a "sepa- ration de corps et de Mens." The princess then removed her domi- cile to Germany, where, in 1875, she acquired citizenship in the 244 INTERNATIONAL CIVIL AND COMMERCIAL LAW Duchy of Saxe-Altenburg. In the same year she entered into a second marriage with Prince Bibesco of Roumania, at Berlin, as permitted by German law. The question arose as to the validity of this marriage. The following grounds were urged in favor of its validity : — 1. Naturalization is an act of public law and only the officials of the naturalizing state have the power to determine its validity (Bluntschli). 2. A femme s^parh has the right to choose her nationality in the same manner as she is permitted to choose her domicile (de Folleville). In this connection it was cited that under the old French law, an innocent femme s^par^e could enter a cloister without the authorization of her husband. Naturalization is an act less radical in its effects and therefore should likewise be permitted. As she can choose a foreign domicile, why should she not be permitted to naturalize there.' The continuance of the authority of the husband contradicts the very nature of a separation and merely serves as an opportunity to the husband to give vent to his passion and hatred. That by virtue of the naturalization, the rights of the princess in personal matters became determinable by the laws of Germany. Such limitations as the French law enacts, therefore, cease (Holt- zendorff). On the other hand, it was argued by Stolzel in Berlin and by Teichmann in Bale that the second marriage was void both by German and by French law, and it was, in fact, so held by the French courts in 1886 (Civil Tribunal of the Seine, August 16), although the Belgian tribunals refused to recognize the penalties imposed by this decree (^Journal, ix, p. 364). II. On February 6, 1893, a statute was passed in France by which a wife separated from bed and board no longer remains under the authority of the husband. This act provides (amending Art. 311, Code civ.) : — "A separation de corps always includes a separation de Mens. It has further the effect of giving to the wife the full exercise of her civil capacity, without the necessity of obtaining the assent of the husband or of the court." Q.oxfi.'^zxQ. Journal, xx, p. 1135. LAW OF THE FAMILY 245 § 80. The Treaty of the Hague Conferences relating to Divorce. Rapport Renault, Actes, 1900, p. 207. The treaty to regulate " the conflict of laws and of jurisdictions in the matter of divorce and separation " (reprinted in French with an English translation at Appendix II) has been referred to the governments of the powers that participated in the Third Conference. It has already been ratified by seven European nations (§ 5, II, supra). The following comments suggest themselves : — I. Theoretically, four different solutions are possible, viz. : — 1. \he Judex domicilii and the lex domicilii ; 2. the Judex domicilii and the lex patricB ; 3. the Jtidex domicilii and the application of the grounds of divorce provided for by both the law of the domicile and of the national state provided they agree ; 4. \he judex patricB and the lex patricB. The proposition which I consider as the sound solution origi- nates with the Institute of International Law. In its " Regulation of the international conflicts of law in matters of marriage and divorce " there are two paragraphs to the following effect : — "Art. 17. The question whether a divorce is legally admissible or not depends upon the national law of the spouses. "Art. 18. If the divorce is admitted upon principle by the na- tional law, the grounds for the same must be those recognized by the law of the place where the action is brought. " A divorce thus decreed by the competent tribunal shall be recognized everywhere." In my opinion the solution proposed by the Institute affords an excellent reconciliation between the two principles struggUng for supremacy in the international field, and from this point of view seems to me most acceptable. The arguments in favor of this view are preponderating; the advantages embraced by it are as follows : — {a) Recognition is given to the close connection existing between the individual and the home state, while at the same time giving due importance to the law of the domicile. (b) The great preliminary question is whether the national law per- mits of divorce or not, — the particular grounds for divorce are comparatively a detail, or of secondary significance. The 246 INTERNATIONAL CIVIL AND COMMERCIAL LAW Catholic view of the marriage relation is, in this way, protected too, as actions of divorce by subjects of Catholic countries could no longer be founded solely upon domiciliary law in Protestant territory. (c) The solution of the Institute is both practical and ingenious for the reason that the judge is not thus unnecessarily required to apply law strange to him. A proposition has also been advanced for the establishment of an international tribunal for the determination of marriage ques- tions arising in International Private Law. See von Bar, 1, pp. 502— 504. This idea is, without doubt, a chimera to which the countries of the world will never agree. I need not say that I have no sympathy with such fantastic plans. The proposition has been earnestly supported, however, by Lehr (^Journal, xi, pp. 49-56): " Uun projet de riglement international en matikre de mariage." No one advanced it at The Hague, and the scheme may be looked upon as buried. II. The Third International Conference did not accept the for- mula of the Institute, but proposed a new one instead (Art. 2). 1. The Second Conference demanded as a requisite for divorce an agreement between the grounds of divorce recognized in the national and in the domicihary state. This suffers from the great mistake of being too complex. It is very difficult to prove accord- ance of two systems of laws in their application to particular cases. See also von Bar, i, p. 502, note 38. I opposed the provisions of Art. 2 at the Second Conference (Meili, " Das int. Privatrecht und die Staatenk. im Haag" pp. 51-54). It has since, however, been adopted in the following statutes : — (a) Art. 1 74, German Introductory Act ; (b) Art. 167, proposed Civil Code for Switzerland. 2. The solution found by the Third International Conference doubtless represents progress over the former. Agreement of both laws in regard to one ground for divorce is no longer required. It suffices that : — (a) a ground exists according to the lex patria ; and {b) another according to the lex domicilii, or conversely. Each ground is thus looked upon as half a ground {" demi- cause"), and their addition forms together a whole ground inter- LAW OF THE FAMILY 247 nationally. We can here speak of a certain reconciliation between the lex patrice and the lex domicilii in the manner proposed by me at the Conference of 1900 ; it is from this point of view only that we can approve of Art. 2 {Actes, 1900, p. 193). In the committee of the Third Conference, I supported the conclusion of the Institute of International Law, which I consider in every way sounder (see also Renault's Report, Actes, 1900, p. 208). The solution with the two half grounds is, to my mind, very artificial and complicated, and the more I reflect upon it, the less satisfactory I find it. Furthermore, the idea does not find clear expression in Art. 2. § 81. Parental Authority. V. Bar, i, p. 534. Fillet, "i?« la dicMance de la puissance faternelle, etc.," va. Journal de dr. i., xix, P-S- Taudifere, Traite de la puissance paternelle (i8g8), p. 21. I. Parental authority is governed by the personal statute of the father (after his death, the mother'). As a matter of legislation, however, sometimes the lex patrice, sometimes the lex domicilii, is given the preference. 1. Parental authority is recognized over children of the fol- lowing categories: — (a) bom in wedlock ; (J)) legitimated or adopted ; if) placed upon equality with those born in wedlock, either by vol- untary recognition (wherever this system exists in the private law of the particular state) or by judicial decree. Questions thus arise, as to whom parental authority is to be assigned, upon what circumstances does it cease, and what rights and duties result from it. 2. Parental authority is an incident of family relationship, and therefore the lex patrice viould seem to be alone the proper standard. The lex patrice has been adopted : — id) By German law. Art. 19, Introd. Act, provides : — " The legal relations existing between the parents and a child born in wedlock are determined by German law, if the father, or, if he be dead, the mother, possess the citizenship of the Empire. The same is applicable where the citizenship of the father or mother has been lost and that of the child has continued." (3) By Italian law (Art. 6, Disposiziont). 248 INTERNATIONAL CIVIL AND COMMERCIAL LAW The authorities differ as to the law of Austria. Jettel {"Handb. des int. Privat- und Strafreckts" p. 55) says that the relations between parents and children are determined by the personal statute of the legitimate father, which, in Austro-Hungary, is the lex patria. But Jettel adds that the laws of the place of sojourn may be invoked to prevent the exercise of a too extensive right of corporal correction, or of any other excessive right accorded by the personal statute. Unger {^System des osterr. allg. Pr. R., i, § 23, p. 195) distin- guishes as follows : — {a) to determine the existence of parental authority, as based upon procreation in marriage, the domicile of the father at the birth of the child is authoritative ; (^) to determine the scope of the authority, the law of the momen- tary domicile of the father controls. 3. The law of Switzerland provides in Art. 9, N. & A.: — • " Parental authority is governed by the law of the domicile." There is no doubt that a certain sphere of influence should be granted the domiciliary law, especially in regard to rights con- nected with the training of children, their duty of obedience, and their correction. This would be necessary, for example, with regard to Arts. 376-377, French Code civil, which gives the parent a right to incarcerate the child. The proper view seems to me to be as follows : — (a) The national law of the father may grant more extensive rights than the domiciliary ; in this case it is to be regarded as tempered by the latter. ((5) The domiciliary law may go farther ; in this case the right of the father is not made greater, as the authoritative law of the family is satisfied with a minus. In practice, the result reached is the same, but only by means of that mystic formula, public order. It would be sounder to relinquish this " deus ex machina," and to recognize simply that the national law cannot provide the extent to which parental authority may be exercised. If an alien who has been judicially deprived of parental au- thority in a foreign state settles in the internal state, he cannot suddenly be reinvested with it by virtue of his change of domicile, even though the domiciliary principle be supported there. The LAW OF THE FAMILY 249 controlling reason is simply that, parental authority being lost, there can no longer be any reference to domiciliary law to deter- mine its scope. In this connection confer also Art. 4, N. & A. II. The personal statute also determines the scope of the right in respect to the property of the children (e.g. usufruct and adminis- tration'). The law of England and America is here again affected by the distinction between movables and immovables. The rights of the father in regard to movables are governed by the lex domicilii, while in regard to immovables, the lex situs determines. Story is of the opinion that all difficulties are overcome by this simple and uniform rule (Story, § 463; with which compare Wharton, § 255). The question arises whether a change of nationality by the father will make his rights determinable by the new national law even in regard to property of the children already acquired. An affirmative answer was given by § 23 of the draft of the German code : — " The personal relations between parents and children, as well as the rights of the parents in property of the children, are determined by the law of the state to which the parent momentarily belongs. Upon a change of nationality, the rights also change, even in regard to property." This provision, however, was not adopted by the Introductory Act. It is based upon the idea that the position of the father in his economic relations to the child is a continuing one, deter- mined by law (not by contract), viz. by the law which governs the general legal relations of the father in this matter. It is not dependent upon the time of birth, and, therefore, no reference should be made to the time when the property was acquired. In- justice may, however, arise from such a view (see Wharton, § 256). At the worst, it might occur that a general right of stewardship over the whole estate be granted by the old and the new personal statute, i.e. such a long-continued administration over the whole estate that it would be impossible to divide it into portions in accordance with the time the change was made. In America and England As to the Person of the Child. — The parental authority of a foreign father (or mother) is recognized in these jurisdictions, but 250 INTERNATIONAL CIVIL AND COMMERCIAL LAW only to the extent that it is permitted to be exercised by the law of the domicile (Johnstone v. Beattie, lO CI. & F. 42 ; Nugent v. Vet- zera, L. R. 2 Eq. 704 ; People ex rel. Campbell v. Dewey, 50 N.Y. Supp. 1013). In the latter case, the court refused to recognize the decree of a foreign state regulating the relations between parent and child where the parties were only transiently sojourning there, quoting Hunt v. Hunt, 72 N.Y. 217, 227, in which it was said " that every state has the right to determine the status, or domestic, or social conditions of persons domiciled within its territory." The rule has been applied so as to absolve a parent of the duty of support, where the law of the (foreign) domicile so provides (Mac- donald v. Macdonald, 8 Bell & M., 2d ser. 331). Rights of correc- tion are usually regarded as within police control, and hence a strictly territorial rule is applied (see Blackinton v. Blackinton, 141 Mass. 432, 5). As to the Property of the Child. — It would follow from the rule that movables follow the person, that the domiciliary law also governs the right of the parent with respect to the movable prop- erty and earnings of the child. The authorities are sparse, though the dicta of an old English case point this way. In Gambler v. Gambler, 7 Sim. 262, the father claimed a life-rent in his children's property ; it was stated by Sir L. Shadwell that " so long as they [the children] were domiciled in this country, their personal prop- erty must be administered according to the law of this country." See also Wharton, § 256. § 82. Guardianship. Gabba, Report of the 13th Conference of the International Law Association, 1887, pp. 130-146. Loiseau, Traiti de la tutelle en droit international (Paris, 1887). I. The right of placing under guardianship aliens in the inland or natives abroad, with all the results connected with this proceeding, is dependent upon their personal statute. I. In regulating the law of guardianship internationally, a certain peculiarity of the subject-matter comes into view. The question here is not merely to determine what objective system of law is applicable to the individual case ; it is a question broader than that, viz., the creation of an organic medium functioning during a certain period. It is therefore particularly difficult to separate LAW OF THE FAMILY 2$ I substantive law and the forum. It is also necessary to note that the question before us now is one of family law, while that as to the capacity or incapacity of a person to act, by reason of actual tutelage or for some other good cause, belongs to the law of persons {q.v.). 2. If we approach the subject of guardianship, first theoretically and without reference to any positive law, the following problems will present themselves : — (a) upon what grounds may a guardianship be initiated, continued, or dissolved, {b) what is the proceeding, (c) who may be guardian, {d) what officials control the guardian, (^) in what way do the official and the guardian co-operate, (/) what shall be the security for the ward. 3. Within the conception of guardianship falls : — (a) ordinary tutelage ; here belong, in addition to the guardianship of minors, also that of persons with a bodily infirmity, of prodi- gals, and of those voluntarily placing themselves under guardi- anship ; (J)) extraordinary tutelage ; here belong the tukla ventris, absentis, and temporary public tutelage of the wife during bankruptcy of the husband, or to enable her to perform certain legal trans- actions. The tutela absentis is peculiar in that the absent person does not become incapacitated to act by virtue of the appointment of a guardian. The creation of a public stewardship and representa- tion is for the protection of the property and exists only with the reservation that the absent person does not otherwise dispose re- garding it. 4. The kinds of guardianship here discussed do not include : — (a) The matrimonial guardianship of the husband over the wife ; this is part of the law of persons. (^) The tutelle officieuse, which may be denoted as the first step toward adoption (French Code civ., Art. 361). (c) The special guardianship of a child whose legitimacy is denied by the presumptive father. A protest of a presumptive father as to the legitimacy of the child is determined by the law (and forum) to which the father is subject. It may be made as against the mother and also as against the child. In Switzer- 252 INTERNATIONAL CIVIL AND COMMERCIAL LAW land the matter would be clear, as the position of persons within the family is altogether subject to the lex (and forum) patria, Art. 8, N. &■ A. (d) Representation for vacant inheritances. Here the personal statute of the deceased is applicable, though a provisional curatory may be created by each country in which there is a part of the estate (v. Bar, ii, p. 353). 5. The usual official guardianship is an institution that must be distinguished from the so-called natural guardianship of parents over minor children. Compare : — (a) Art. 220, Codice civile of Italy, (b) § 1684, German Civil Code. 6. The powers of the guardian are determined by the law of that state under whose jurisdiction the guardianship was created. This applies, for instance, to the following questions : — (a) as to what transactions require official ratification, (b) as to how far contracts of lease of real estate will hold good beyond the term of the guardianship. The other party has sufficient opportunity to inform himself as to the provisions of this system of law, and the lex rei sita does not apply (v. Bar, i, 572). The same principle applies to the legal responsibility of the guardian. II. The tutelage of insane persons is properly a topic to be con- sidered for itself. In determining the rules of conflict relating to guardianship, it is of particular importance to separate the various kinds of guardianship one from another. It is improper to treat all the questions arising here under one head, irrespective of whether they concern the guardianship of minors or the interdiction (tu- telage) of major persons. In regard to insane persons it must be noticed that the territorial law may play quite a r61e, as we are there frequently involved with public police regulations. In view of this fact, the disabilities arising from such a guardi- anship or curatory are most naturally governed by the territorial law. The fact that a curatory for insanity has been initiated or decreed in a foreign country does not, of itself, compel recognition of the curatory in another state in the absence of treaty. As a practical matter, the state in which the property lies has the advan- LAW OF THE FAMILY 2S3 tage, and usually will not surrender the property merely because the other state has created a curatory. III. The condition of the law in the various countries is as follows : — 1. German law sets up two propositions : — («) A German citizen cannot be placed under curatory abroad; at least such curatory will not be recognized in Germany. The Code of Civil Procedure has enacted a domestic forum for the curatory of Germans domiciled abroad (§ 648) ; (b) The German state retains the right to place under curatory aliens domiciled or sojourning in the Empire (Art. 8, Introd. Act). Cf. also §§ 36, 37, and 47, Imp. Stat, upon Matters of Voluntary Jurisdiction. In § 47 it is provided that the inland court having jurisdiction may surrender it in favor of the foreign court of the party's domicile or sojourn, if it be for the interest of the ward. Furthermore, a guardianship or curatory may be decreed against an alien, according to German law, if the foreign state does not undertake it, even though entitled to do so by its laws (Art. 23, Introd. Act). 2. Austria. Art. 183 of the Imperial Patent of August 9, 1854, provides : — " If an alien leave a minor child in Austria, the court may appoint a guardian for it until the competent foreign official has made other provision for the same." Friedlander {"Das Verfahren ausser Streitsachen nach k. Patente vom g Aug., 1834" 12th ed., p. 179) remarks that the guardian will be appointed notwithstanding that "the personal rights" affect- ing the personal quality and relationships of the ward are deter- mined by the law of that state to which, as a citizen, he is subject. It is also stated that the above law also applies to " major persons within the territory " without considering the proceeding adopted by the foreign state with regard to Austrian subjects. Confer also the Austrian Statute of 1895 upon the Exercise of Jurisdiction, § 109. 3. Italian law has here also adopted the principle of lex patrice. The guardianship of aliens in Italy and of Italians in foreign lands is governed by national law (Art. 6, Disposizioni). A guardian for a minor Italian girl appointed in Switzerland pur- 254 INTERNATIONAL CIVIL AND COMMERCIAL LAW suant to the law of her domicile requested the delivery to him of a legacy left to her in the home country. The Italian govern- ment replied to the Federal Council as follows {B., 1891, ii, p. 539, No. 17): — " The guardian appointed in the Swiss canton cannot be recog- nized in Italy, as the appointment of a guardian for one of our subjects abroad must, according to Italian law, take place under the provisions of the Italian Civil Code, whereby the competent officials must call a family council composed of the nearest rela- tives, to whom shall be given the right to appoint a guardian." 4. The law of Englatid and America makes the law of the ward's domicile govern the appointment of the guardian and the management of the estate. The guardian has therefore the right to administer property situated in a foreign country. Wharton says at § 260 that "... a guardian duly constituted according to the laws of the domicile of the ward should be recognized as such by all other countries." The Enghsh and the American courts do not, as a rule, appoint guardians for their own subjects who are domiciled abroad, at least not unless the person in question possesses property within the territory. See also Supplement to § 62, supra. 5. The Argentine Civil Code provides as follows with refer- ence to guardianship : — "Art. 409. The administration of a guardianship created by the courts of the Repubhc is exclusively governed by the present code, if the property of the ward is situated within Argentine territory. "Art. 410. If the ward possesses property, whether movable or immovable, without the territory of the state, its administration and disposition are governed by the law of the country where it is situated." § 83. A Peculiar System of solving Guardianship Conflicts. The Swiss law is based upon a reconciliation of the two oppos- ing principles in International Private Law. This precedent is, in my opinion, highly commendable. I. The Federal Statute, N. & A., contains the following very interesting rules : — " Art. 10. Excepting the provisions of Arts. 12-15, guardianship is governed exclusively by the law of the domicile of the person LAW OF THE FAMILY 255 to be placed under guardianship, or who is already under guardi- anship. "Art. II. The law of guardianship within the meaning of this act embraces the rules with reference to the care of the person as well as the administration of the estate. " Art. 12. The guardianship officials of the place of domicile must give those of the home canton notice of the commencement and vacating of the guardianship, as well as of a change of residence of the ward, and, upon request, give them any other information relating to the guardianship. "Art. 13. Whenever a disposition is to be made with reference to the religious training of a minor ward, according to the provisions of Art. 49, par. 3, of the Constitution, the officials of the domicile must obey the instructions of those of the home canton in this regard. " Art. 14. The competent officials of the home canton may move the appointment of a guardian for citizens of their canton domiciled without the same, with the competent officials of the canton of domicile. Such a motion must be granted if the guardianship appears well founded according to the law of the domicile. " Art. 15. If the officials of the domicile have neglected the per- sonal or property interests of the ward or the interests of the home commune or are not in position to properly guard the same, or if the officials of the domicile have not obeyed the instructions of the home officials with reference to the rehgious training of the child, the home officials may demand that the guardianship be sur- rendered to them. "Art. 16. Disputes arising by reason of the motions and requests of the home officials under Arts. 14 and 15 shall, upon the suit of these officials be determined, in the last instance, by the Federal Court sitting as a public tribunal. In imperative cases, the President of the Federal Court may act to protect imperilled interests. "Art. -17. If the guardianship officials permit of a change of domicile by the ward, the right and the duty of administering the guardianship pass to the officials of the new domicile and the estate of the ward is to be surrendered to him. "Art. 18. The administering of a guardianship at the domicile and in the home canton at the same time is forbidden. "Art. 33. A guardianship conducted for an alien in Switzerland shall be surrendered upon the request of the competent foreign home officials, provided the foreign state holds its own jurisdiction to be paramount." These provisions represent a most interesting attempt to recon- cile the two main theories. Upon principle, the domiciliary law 256 INTERNATIONAL CIVIL AND COMMERCIAL LAW governs (Art. lo), but the statute gives certain rights of jurisdic- tion to the national state. The surrender provided for in Art. 33 also represents a tempering of the domiciliary by the national law ; it is a peculiar precedent, especially as the control of guardianships constitutes a branch of public administration. 2. As in regard to other subjects, the provisions above quoted are applicable by analogy to aliens domiciled in Switzerland (Art. 32), excepting, of course, such provisions as cannot, from their nature, be applied internationally. Thus Arts. 13 and 15 cannot apply, as Swiss officials could not be subjected to foreign control in the manner provided between cantons. Neither can Art. 18 be thus applied, as the officials of a foreign state could not be prevented from creating a guardianship on their own account. 3. In Switzerland, too, natural (paternal or maternal) guardian- ship is regarded as a matter of personal law and therefore subject to the rules regarding the status (Art. 34, N. & A.). It is therefore a matter reserved to the lex patria (see § 58, supra). 4. The position of Swiss subjects domiciled abroad is here also regulated by Art. 28, Nos. i and 2, N. & A., which makes the Swiss law applicable unless the foreign law otherwise provides. Land located in Switzerland is, however, subject to administration by the Swiss guardian under the Ux and forum originis {patricz). If a Swiss subject be under guardianship at the time of leaving Switzerland, the officials of the domicile will still continue to ad- minister the estate as before (Art. 29). 5. The relations of Switzerland with France and Italy in regard to the creation and administration of guardianships have been regulated by treaty. § 84. The Labors of the Institute with Reference to the Guardi- anship of Alien Minors and Adults. The Institute of International Law has repeatedly been en- gaged upon the questions discussed in the preceding paragraphs. It has adopted a series of principles relating to the guardianship of alien minors to serve as a model for future legislation. It has also adopted rules of procedure to carry these principles into execution {Tableau g^n^ral de Flnstitut, 1873-1892, pp. 44-49). It has also adopted principles relating to the guardianship (inter- LAW OF THE FAMILY 257 diction) of adults {Annuaire, 1895-1896, xiv, p. 163, with the dis- cussions at pp. 146-163). Compare also : — Lehr, in Revue de dr. i., xxiii, pp. 515-517- Annuaire, 1889-1892, xi, p. 104, and discussions, pp. 87-104. § 85. The Treaty of the Hague Conferences relating to Guardi- anship. The Third International Conference formulated a treaty in regard to the guardianship of minors. It has been adopted by seven of the nations represented at the Conference (see § 5, II, supra), and will probably be ratified by other nations. The text of the treaty and an English translation will be found at Appendix III, infra. The treaty would seem open to criticism from two points of view : — 1. the idea of a reconciliation between the two main principles does not find sufficient expression ; 2. provisions with regard to the forum and for the determination of disputes are indispensable and should not have been omitted in connection with this subject-matter. As a matter of fact, in dealing with guardianship, we are dealing with an organic institu- tion and the grounds for instituting a guardianship cannot be separated from the organization of the governmental bodies which shall control it. I called the attention of the Conference to this {Actes, 1900, p. 89), but the committee decided that the question did not come within its province {Actes, 1900, p. 105). At the Conference of 1900, a special committee also reported a project for the regulation of interdictions {Actes, 1900, p. 202), but it has not been passed upon by the delegates. § 86. The Duty of Aliment as between Members of the Family. Laurent, v, Nos. 84-95. L. Olivi, "/?« conflit des lots en matitre d^obligation alimentaire^'' in Revue de dr. i., xvii, pp. 55-64. I. According to the conception prevailing on the Continent of Europe, the lex patricB governs. The ethical bond of the family is involved and therefore the duty of support is dependent upon the national law of the obligor. 2S8 INTERNATIONAL CIVIL AND COMMERCIAL LAW 1. A duty of support may arise between the following classes of persons : — {a) Between spouses ; this obligation is part of the marriage rela- tion. Arts. 2 1 2 ^Z se^. of the French Civil Code are under the title "the respective rights and duties of the spouses" and under the over-title " concerning marriage." The Italian Civil Code speaks of the duty of aliment in Art. 130 under the over- title " concerning the rights and duties arising out of wedlock." The duty of support presupposes a normal communal Kfe and does not exist between persons cohabiting out of wedlock. (3) Between ancestors and descendants; this obligation is based upon natural relationship and is likewise based upon family law. The duty of supporting children exists irrespective of whether they were originally born in wedlock or afterward legitimated. This is true even in countries where legitimation by judicial act is unknown (England, America). Children who cannot be legitimated according to the authoritative per- sonal statute, of course do not possess such right of aliment. 2. In addition to the cases mentioned, a right of aliment may exist, by reason of an ordinary private contract. Here the ordi- nary rules of the international law of obligations are controlling. 3. Fiore is of the opinion that the territorial law should govern, as the question of aliment is one of public order and touches the discipline and morality of the family {"Droit int. priv^" ; Pradier- Fodere's translation, No. 109, pp. 203-205). To this effect was the decision of the Civil Tribunal of the Seine, and the Court of Appeal in France (1869). By this decision, American parents-in- law were compelled to aliment their French son-in-law and their grandchild (Arts. 207, Code civ.). But the judgment was not recog- nized in the United States, whither the parents-in-law removed later {Journal, i, p. 45). The view of Fiore is, in fact, untenable. 4. The correct view is followed by Art. 9, Swiss Fed. Stat., N.& A., which provides : — " The duty of support between relatives is governed by the law of origin of the person owing the duty." The courts of the domicile, however, are competent even with reference to aliens domiciled in Switzerland. {a) Although Art. 9 speaks only of " relatives," the wife is also in- tended, provided she lives with her husband. It is a duty based upon law, and, therefore, cannot be varied by contract, although LAW OF THE FAMILY 259 the provisions of a contract may serve as a rational method of arriving at the needs of the person entitled to support, and at the means of the person owing it {H. E., xx, p. 24). [S) The lex patrim appUes also to the right of ahment growing out of injuries received in factories, as, for instance, under the Swiss Fed. Stat, of 1881, upon the liability of factories. By Art. 6, it must be shown that the person killed or injured was under a duty of support according to the national law. The question here again arises whether the husband was under such duty where the wife Uved separate. The Federal Court applied the former State Law of Baden (§ 214) in a certain case, that being the national law of the person injured ; accordingly it was held that the right of aliment ceased where the wife no longer per- formed her marital duties and had abandoned the husband (^.^., xxii, p. 188). In America and England According to Story (§ 198), the matrimonial domicile, or, if that cannot be ascertained, the domicile of the husband, will determine the relation of the spouses with regard to aliment. But this law often coincides in practice with the forum, as wives claiming ali- ment, or demanding protection, will resort to the forum of the place of residence. These courts will not, however, determine any ques- tions of rights so as permanently to affect the marriage relations, unless they also have jurisdiction by domicile. In England these personal relations are supposed to depend solely upon the forum (Westlake, p. 61). American authority also tends to draw away from Story's reasoning (De Boimont v. Penniman, 10 Blatch. 436). The same view is taken as to the claims of children for aliment. Thus, in Scotland it has been held that personal presence yi the territory, for however short a time, will found jurisdiction to enter- tain an action for aliment by a child against a father, the father having the child with him within the jurisdiction of the court (Ringer v. Churchill, 1840, Ct. of Sess. Reps., 2d Ser., p. 316). The state of the law has been left somewhat in doubt by the more recent case of Macdonald (cited supra, § 83), wherein a narrow majority of the court held to the domiciliary standard. Rules relating to the aliment of illegitimate children are con- sidered, in the United States, as penal ordinances, and hence sub- ject to the law and jurisdiction of the place where the "offence" 260 INTERNATIONAL CIVIL AND COMMERCIAL LAW was committed (Wharton's "Criminal Law," 8th ed., p. I74i)- Where it is resorted to as police relief, the place where it is re- quired assumes jurisdiction (Kolbe v. People, 85 111. 336). § 87. Adoption. V. Bar, i, p. 547. Weiss, iv, p. 10 1. I. Adoption should properly be governed both by the personal statute of the person adopting and of the person being adopted, though legislation frequently makes the former alone authoritative. 1. The questions arising here embrace : — {a) the requisites for adoption ; Ip) the necessity of obtaining the consent of the person to be adopted, or that of his parents or guardian ; (c) the necessity of obtaining the consent of the spouses and of the officials of the commune or state of origin of the persons adopting ; (d) the requirement of a preUminary period of care and mainten- ance; (<•) the legal effect of adoption. Especially important here is its effect in matters of succession as a result of the entry by the child into the family of the adoptive parent. The question also arises as to the right of the child to the name of the adoptive parent and as to whether nobiUty can be transmitted in this way. In this connection it is to be noted that the effects of adoption may be validly controlled by contract (e.g. see § 1767, German Civil Code). Adoption affects the legal relations of the family. This was especially true of the Roman conception of adoption (arrogatio); the admission into a family, or gens, was essential. The same idea prevails to-day, though it is, perhaps, not carried out in the same degree. See §§ 182-184, Austrian Civil Code; § 1767, Ger- man Civil Code. The Swiss conception is similar, as is shown also by the fact that the Federal Statute upon Marriage forbids mar- riage between adoptive parents and adoptive children (Art. 29, No. 2, b). 2. As to the law to be applied, that of the adoptive parent is often alone referred to, although upon principle, the law of both parties should be observed (v. Bar, i, p. 547). The question has LAW OF THE FAMILY 26 1 been repeatedly asked as to whether the observance of the personal statute, either of the adoptive parent or that of the adoptive child, does not suffice. It is, indeed, a matter of doubt which objective system of law should have the preference, where the legislature wishes, in the interest of adoption, to dispense with the observance of both per- sonal statutes. What law shall be given the preponderating in- fluence.' Catellani (No. 590) favors the law of the child, while Rolin {"Principes du dr. i.priv^," ii, No. 604) is certain that the right to adopt is dependent upon the law of the adoptive parent and considers adoption permissible, even if the home state of the per- son to be adopted does not recognize the institution. 3. Italian law subjects adoption to the lex patrice by Art. 6, Disposizioni, under the head of "relations of the family." The rule applies both to Italians abroad and to aliens in Italy. Accord- ingly, in both cases, the adoption must accord, formally and sub- stantively, to the national law of both the person adopted and adopting. Catellani says, however, that "the jurisprudence of France and that of Italy are inclined to favor the law of the parents." 4. The German Introductory Act, Art. 22, provides : — " Adoption is governed by German law if the person adopting is possessed of German citizenship at the time of adoption. " If the person adopting is a foreign citizen, while the child pos- sesses the citizenship of the Empire, the adoption shall be invalid if the consent of the child, or that of a third person standing in a family relationship to the child, has not been obtained pursuant to German law." 5. According to Austrian law, the personal statute of the per- son adopting governs upon principle. I refer to Jettel i^'Handbuch" etc., pp. 55-56) and to § 113 of the Austrian Statute upon the Exercise of Jurisdiction. Unger (" System," i, p. 195) also takes this view in that he says : — " Adoption is governed by the domiciliary law of the adoptive parent. Thus, if an Austrian domiciled in Austria adopt a child in France, the provisions of Austrian law must be observed ; if an Aus- trian domiciled in France adopt a child there, the provisions of the French law are then applicable." 262 INTERNATIONAL CIVIL AND COMMERCIAL LAW 6. According to Swiss law, the national law of the adoptive parent is exclusively applicable (Art. 8, N. & A.). {a) An Italian domiciled in Switzerland can adopt a child there only by observing the law of Italy, and, therefore, must obtain the authorization of the competent court of appeal (Arts. 202-219, Co dice civile). (F) An Englishman domiciled in Switzerland cannot adopt a child there, either of Swiss or other nationahty, as the law of England does not recognize the institution of adoption. II. It is to be noted that so far as the form of adoption is con- cerned, many systems of law require the co-operation of the courts or administrative authorities. In this event, however, the maxim of " locus regit actum " cannot be relied upon. 1. The consent of the judicial or administrative bodies is not a bare formality. Compare Catellani, No. 573; Duguit, " les Con- flits de legislations rel. a la forine des actes civiles," 1882, p. 99. It constitutes a "condition " or form " intrinsigue." Compare Laurent, vi, No. 34; Gierke, "D. Privatrecht," i, p. 231, note 60. A very complete and sound explanation of the significance of form in re- lation to adoption is also to be found in Buzzati, " L'autoritd delle leggi straniere relative alia forma degli atti civili," 1894, p. 342. It cannot be said that the proceeding in adoption is of a formal nature, and that, therefore, the maxim of "locus regit actum" controls. Adoption cannot be regarded as an ordinary civil con- tract. Governmental ratification of the act is a substantive requi- site to its validity, and not a mere form. The state to which the adoptive father belongs is interested in the welfare of his family, and, therefore, retains to itself the right to ratify or to veto the act of adoption ; there is no right of the parties to a ratification. Thus ratification may be correctly designated as an act of executive authority. 2. In France and Italy the courts must co-operate (Art. 216, Codice civile). For this reason, it was properly held in France that an adoption undertaken by a Frenchman in Belgium of a Bel- gian subject was null and void, although performed in the presence of a justice of the peace in Brussels, and was consented to by the court of first instance and the Court of Appeal at Brussels {^Journal de dr. i., xi, p. 179). LAW OF THE FAMILY 263 3. In Germany the District Courts have jurisdiction (§ 66, Imp. Stat, of 1898, upon Matters of Voluntary Jurisdiction). 4. In Switzerland, judicial ratification is required in some can- tons (Geneva, A. E., xii, p. 11), in others, that of the Orphans' Bureau and the Department of Justice (Zurich, Code, §§ 720 etseg.). In the latter canton, an adoption of one of its citizens domiciled in Italy, of an Italian subject, was refused recognition because no ratification of the officials of Zurich had been obtained (H. E., xx, p. 215). 5. In some states {e.g. Bolivia, Uruguay) a mere notarial act is sufficient. The citizens of these states can undertake an adoption abroad by observing this formality. III. An adoption completed in legal manner in one country should be recognized everywhere, even in those countries the laws of which do not recognize the institution. A citizen of Zurich who, in 1869, became naturalized in Chile without surrendering his nationality in Switzerland, adopted an illegitimate child in Zurich in 1878. An action for aliment by the adopted child was dismissed in Chile because the law there does not recognize the institution ; it also holds that the Chilean laws are applicable to all inhabitants of the territory, including aliens. As the adopted child distrained the property of the adoptive father to secure her action for aliment in Zurich, the question arose whether this proceeding was not barred by the case already adjudicated. The courts of Zurich declared that the defendant's answer was subject to the reply that the judgment in Chile was void, in that the nonsuit of the plaintiff upon the ground stated involved a denial of justice ; also that the adoption which took place outside of Chile created a valid legal relationship, and that a vested right of private law should have been recognized by the judge even of a state wherein the act could not have been undertaken (II. E., x, p. 157). This is, in fact, an entirely correct proposition in International Private Law. IV. A contract for succession made between spouses, under certain circumstances, loses its effect by virtue of an adoption. A case of this kind is presented, for instance, where the spouses agree that the survivor shall inherit " if God does not bless us with children," and they thereafter adopt a child. The condition refers to the existence of children entitled to inherit, and not merely to issue. 264 INTERNATIONAL CIVIL AND COMMERCIAL LAW With regard to the active rights of succession of adopted chil- dren, the law which governs is that applicable generally to the estate of the deceased, whether of the adoptive parents or of the natural relatives of the child. An adoption which had been completed in Saxony was held in New York not to grant a right of succession where the will spoke of " legal issue," as only issue of the body was thereby designated (Z>. Jurist. Ztg., 1900, p. 508). Compare also Zeitschrift fur intemat. Privat- und Strafrecht, iii, p. 348. In America and England England does not recognize the institution of adoption. It is said that it creates a status unknown to English law, and therefore that a child adopted according to the laws of a foreign country will not be granted rights of succession in England (Dicey, p. 475). It is submitted, however, that this view is inconsistent with the doctrine of English courts with regard to legitimation by subsequent marriage. Here also we have a status not recognized by EngUsh law, and yet, if the father be domiciled in the foreign state where the legitimation takes place, it will be recognized as valid in Eng- land (Munro v. Munro, 7 CI. & F. 842). Perhaps the question may still be regarded as an open one in England. In the United States, at least one of the parties, the adoptive father or the child, must be a domiciled subject of the State creat- ing the status. If so, the adoption will be held valid in all other States to whose jurisprudence adoption is not repugnant, even as to real estate situated therein (Van Matre v. Sankey, 148 111. 356; Ross V. Ross, 129 Mass. 243; Hartwell v. Tefft, 35 Atl. (R.I.) 882). The case cited by the author above, which seems to have occu- pied the attention of German jurists, is N.Y. Life Ins. and Trust Co. V. Viele, 22 App. Div. 80, affirmed in 161 N.Y. 11. It really involved only the interpretation of the will of the adoptive parent. The court concluded that by the term " legal issue," the testator did not intend to designate the adopted child. The court in effect recognized the status created under the jurisdiction of Saxony, and indicated that if the Saxon code had declared that an adopted child should have " the status of a descendant and all the legal LAW OF THE FAMILY 265 consequences and incidents thereof, the same as though he were born in wedlock," there would have been a basis for concluding that the will intended the adopted child to be included within the term " legal issue." § 88. Legitimation of Children born Antenuptially. Despagnet, '■^ De la legitimation en droit international privl," in Journal de dr. i., XV, p. 592. I. The legitimation of children born before or out of wedlock is properly referable to the personal status of the party undertaking the legitimation and of that of the child. The rule is, how ever, frequently avoided, and the act made to depend upon particular requisites instead. 1. The lawmaker is here usually influenced by practical con- siderations in that the compulsory observance of both laws would make legitimation more difficult and result in unnecessary detri- ment to the innocent child. This is especially so in states the internal law of which recognizes the institute of legitimation (Arts. 331-333, French Civil Code). Art. 10 of the Rkglement of the Institute of International Law proposes the following : — " The effects of the marriage . . . upon the status of the children born before the marriage shall be governed by the national law of the husband at the time the marriage was contracted." 2. According to Art. 22 of the German Introductory Act, the legitimation of a child born out of wedlock is governed by Ger- man law if the father possess German citizenship at the time of legitimation. 3. According to French law, legitimation by subsequent mar- riage can occur only when the parents have recognized the child before the marriage takes place, or, at the latest, in the written contract of marriage itself. It is usually understood that marriages of aliens taking place in France will have the effect of legitimating the children, if the personal law of the parties gives this effect to it. The matter seems still in dispute {fournal, xiv, p. 183). The laws of France and Italy do not permit the legitimation of children born of adulterous or incestuous intercourse (adulterini and incestuosi). 4. In England, legitimation per subsequens matrimonium is not 266 INTERNATIONAL CIVIL AND COMMERCIAL LAW recognized, although if it has taken place by virtue of a foreign law, most of its legal results will be recognized. See Dicey, " The Law of Domicile as a Branch of the Law of England," etc., i, Art. 35, note: — " The law of the father's domicile at the time of the birth of a child born out of wedlock determines whether the subsequent mar- riage of the father and mother legitimates the child " (Trans, from the French of Stocquart, " Le statut personnel anglais") . By an English decision (November i, 1887), cited in the Jour- nal de dr. i., xv, p. 831, it was held that legitimation through subsequent marriage is determined by the law of the country wherein the parent resided at the time of the child's birth. In England this is called the lex originis : " The law of the country of origin is not the law of the place where the child was born, but the law of the place where the parents had their domicile at the time of its birth. If the parents had different domiciles, which may occur where they were not married, it is the domicile of the father which governs, and not that of the mother" (Vaucher v. Solicitor to Treasury, 40 Ch. D. 216). See also Stocquart, " De la legitima- tion des enfants naturels far mariage subsequent en dr. i. privi," id., p. 205, and Laine, in Journal, xxiii, p. 481. 5. Art. 54 of the Swiss Constitution states : — " A subsequent marriage of the parents legitimates children bom antenuptially." The same statement is found in Art. 25 of the Statute upon Mar- riage. Legitimation is considered an absolute result of the subse- quent marriage of the parents wholly independent of the place of origin of the parents. In favoring the institute to so high a degree as to embody it into the Constitution, the sovereignty obviously regarded a distinction between legitimate and illegitimate children of married persons as offending moral and humanitarian principles. It is true that Art. 41 of the Statute upon Marriage provides that the parents shall give notice of the residence of all illegitimate chil- dren at the time of or within thirty days of the marriage, but this is a purely administrative provision and does not prevent the registry of the legitimation after that time. II. The same ptinciples apply to legitimation by act of the sover- eign {per rescriptum principis) where such a system obtains. LAW OF THE FAMILY 26/ III. The effects of legitimation must be recognized everywhere, particularly in connection with rights of succession. The English practice does not go to this extent ; it requires that for succession to immovables the child be legitimated according to the lex rei sitce (compare v. Bar, i, p. 542). In America and England The general current of authority in the United States differs from the rule in England only in this, that in the former jurisdic- tion the law of the father's domicile at the time of the marriage is exclusively authoritative, while in the latter jurisdiction the law of the father's domicile at the time of the child's birth must coincide. Thus, in America, if the law of the domicile at the time of marriage recognizes l&gitirmX.io'n per subs equens matrimonium, it will be taken to confer a status upon a child born antenuptially which will accompany him everywhere, even for the purpose of inheriting real estate in a jurisdiction where such legitimation is not recognized (Miller v. Miller, 91 N.Y. 315 ; In re Hall, 1901, 61 App. Div. 266 (N.Y.); Ross v. Ross, 129 Mass. 243; Smith v. Smith, 23 Miss. 167, 170. Contra, Lingen v. Lingen, 45 Ala. 411.). In the case of In re Hall, supra, the court recognized the legitimacy of an infant by the marriage of its parents in Dakota, after a divorce obtained there of one of the parties, although it refused to acknowledge the vaHdity of the divorce. It was held that the public policy which led the court to question the validity of the divorce and remarriage, extra-territorially, would not lead the court to deny the status of legitimacy to the issue of such marriage, valid in the State of Dakota. In England, however, if the law of the country where the father is domiciled at the time of the birth of the child does not allow of legitimation by subsequent marriage, no subsequent mar- riage will avail to make the child legitimate {In re Wright's Trusts, 25 L. J. Ch. 621). So also if the law of the country where the father is domiciled at the time of the subsequent marriage does not allow of such legitimation, the child will not be con- sidered legitimate (Vaucher v. Solicitor to Treasury, In re Grove, 40 Ch. D. (C. A.) 216). The domicile of the mother is considered immaterial. Thus, where the domicile of the father was in Scotland, where such 268 INTERNATIONAL CIVIL AND COMMERCIAL LAW legitimation is recognized, and that of the mother was in England, where it is not, the marriage was held to have legitimated the child (Munro v. Munro, 7 CI. & F. 842). § 89. Claims in Bastardy. Neubauer, in Z.fiir vergl. R., iii, p. 321 ; iv, p. 362. Voigt, in Zeitschrift fiir internat. Privat- und Sirafrecht, i, pp. 304, 461. A. Juvara, Les enfants naturels en droit international f rive (Paris, 1898). I. Where bastardy proceedings are combined with a suit based upon seduction, the father's lex and forum patrics should be controlling. Claims arising out of illicit cohabitation are construed in vari- ous ways, and frequently the manner in which they are construed is of importance in determining what system of law shall be applicable. 1. Some jurists base the liability in this class of cases upon tort or quasi-X.oxX.. This is the construction of Windscheid (" Pand." § 475). According to this theory, a defendant guilty of ilUcit cohabitation is held liable as the possible father, the possibiUty being construed into a reality because he has been guilty of a tortious act, and the aUmentary obligation does not fall away by proving that during the critical period, the mother submitted her- self to other men. Others deduce a liability from the fact of procreation itself, for the following reasons : — {a) a quasi family relationship is thus established ; especially is this so where fathership also determines the status ; {h) fathership alone is a sufficient social basis for an action for aliment ; (c) an action for damages in tort should be accorded, especially in the event of seduction. 2. In determining the system of law applicable to bastardy actions, we must distinguish the nature of the various kinds of claims, as follows : — {a) a claim for the recognition of the status of a child in connec- tion with a claim for damages and aliment ; {¥) a claim for aliment alone ; (f) a claim by reason of the commission of a tort. LAW OF THE FAMILY 269 If the action is to determine a family relationship founded upon a promise of marriage, the personal statute of the father is prop- erly controlling; he is the head of the family even where the claim is made by a doubtful member thereof. To this effect is the decision of the German Imperial Court (xxix, p. 291) and Art. 8, Swiss Statute, N. &■ A. {H. E., xii, p. 13). II. The lex {and forum) domicilii of the father are controlling in ordinary bastardy proceedings and in actions simply for aliment. 1. The domicile which controls is that which the defendant possessed at the time of the cohabitation. Thus where a Viennese woman brought an action against the father of her illegitimate child, the father being domiciled at Vienna at the time of cohabita- tion, the courts of Zurich, whither he had removed, applied the Austrian law {^H. E., xii, p. 281). 2. The German Introductory Act is to the contrary upon the question before us : — "Art. 20. The legal relations between an illegitimate child and its mother are determined by German law if the mother be German. This is so also where the citizenship of the mother has been lost, while that of the child has continued. "Art. 21. The obligation of the father for aliment of an illegiti- mate child, and his liability toward the mother for the expenses of pregnancy, delivery, and support, shall be judged by the laws of the state to which the mother belongs at the birth of the child. No more extensive claim shall be recognized, however, than are established by German law." '3. The law prevailing at the place of cohabitation is immaterial. Seuffert {Kommentar ilber die bayerische Gericktsordnung, i, p. 245) points out that the place of cohabitation is wholly accidental, e.g. " the village in which the parties came together to attend a fair, the woods in which they met." The conclusions of Seuffert from the foregoing are twofold. Firstly, he disputes the ratio juris that this accident should determine the extent of the duty of aliment, the rio"ht to bring up the child, the future law of succession, or the exceptio plurium concubentium. Secondly, he shows that the view would lead to insoluble difficulties where cohabitation took place at different times and at different places, subject to different laws. Thus Seuffert reaches the proper view that the personal law of the defendant is controlling. 270 INTERNATIONAL CIVIL AND COMMERCIAL LAW III. Where the case is one of tort (e.g. seduction, rape, infection), the lex delicti commissi is authoritative. IV. In countries having the French system of law, a claim in tort is recognizable only if it be founded upon the law of the place where the act complained of occurred. 1. Under French law {e.g. French Civil Code, Art. 340, Italian Civil Code, Art. 189, Netherlands Civil Code, Art. 340) the maxim prevails that " la recherche de la paternity est interdite." In these Jurisdictions, actions in bastardy even between aliens are not per- mitted, as the law of the forum sets up an absolute veto against the investigation of fathership out of wedlock. Contrary, however, is the case of the judgment of a foreign court based upon a claim in bastardy ; such an adjudication is available against an alien even in France. 2. A Frenchman domiciled at a place the laws of which per- mit of actions in bastardy cannot rely upon the lex patruz, as there is no question of status involved. V. The limitation of actions, as former discussion has already shown (§ 56, supra), should be governed by the law to which the claim itself is subject. A special development of the rule is here in point. The following systems are controlling : — 1. the lex patricB of the father, in actions affecting the status ; 2. the lex patricB of the mother (Art. 21, Ger. Introd. Act) and the lex domicilii of the father (by Swiss Law) in ordinary bastardy proceedings ; 3. the lex delicti commissii in actions based upon seduction, infec- tion, and the like. It is true that the proposition has been advanced that, in actions of bastardy, the lex fori governs the limitation by way of an exception to the rule. This has been advanced with much hesita- tion in Switzerland (Ullmer Supp. No. 2678). The Prussian State Law, § 1083, T. 2, providing a period of two years from the birth of the child, has been interpreted as an imperative rule (Seuffert, Archiv, viii, No. 7). This view does not seem sound. The provision that an action in bastardy may be brought only within a certain period is to be considered as a limitation of the action and (according to the Continental conception) is not a rule of procedure. It is therefore the substantive system of law to LAW OF THE FAMILY 271 which the action in bastardy is subject, which determines whether the action may be brought within a certain period {Zeitschrift fur internat. Privat- und Strafrecht, x, p. 494). This point is to be emphasized all the more because the provi- sions are often found in rules of procedure. VI. Here again it is necessary to separate substantive law from rules of procedure . Questions as to the manner and the weight of proof, such as the inferences to be drawn from the relation of the time of delivery with the time of conception, are governed by the lex fori. In the action of a Viennese woman brought against an Austrian domiciled in Zurich, the defendant admitted cohabiting with plaintiff in Vienna. A full-grown child had been born on April 25, 1892, and the con- ception took place on the ist, 3d, or 5th of September, 1891, according to the assertion of the defendant. As against the plea of the defendant that the conception did not accord with the time of birth, the plaintiff relied upon the Austrian Code of Private Law, particularly § 163, but without avail. This provides : — " Whoever has been proved in the manner provided by the court rules to have cohabited with the mother of a child within a period of not less than six nor more than ten months from the time of her delivery, or whoever has admitted this out of court, shall be deemed to have procreated the child." The Appellate Court of Zurich dismissed the action because, according to the Zurich Code of Private Law, § 702, the shortest possible duration of a regular pregnancy must be taken as 259-260 days, while here, between the ist or Sth of September, 1891, and the 2Sth of April, 1892, only 238 or 233 days had elapsed, there being no proof of premature birth {H. E., xiii, 1894, p. 291). § 90. Voluntary Recognition of Illegitimates. In certain states, an adjudication to the effect that a certain bond of family relationship exists between an illegitimate child and its father can only take place in the event that certain prerequisites exist, as for instance, a betrothal preceding the cohabitation (judicial promise to marry, §§ 686, 709, Zurich Code of Private Law). On the other hand, countries governed by the French system of law generally give validity to a voluntary recognition by the father of an illegitimate child, so as to affect rights existing within the family 272 INTERNATIONAL CIVIL AND COMMERCIAL LAW and (in a limited way) rights of succession (Arts. 334 et seq., 757 etseq., French Civil Code ; Arts. 335 etseq., 909 etseq., Netherlands Civil Code). The child then acquires the name and citizenship of the father, is subject to his paternal authority, and is entitled to aliment and to inheritance (see German Imp. Ct., Civ. Cases, vol. 46, p. 314). Children of adulterous or incestuous intercourse are excluded from the operation of this rule. I. The capacity to act is sometimes separately regulated with reference to this proceeding. For instance, Art. 337, Civil Code of the Netherlands, provides that the father must be over the age of nineteen. The law also requires the consent of the mother to the recognition under certain circumstances (compare Art. 284, Civil Code of the Dutch Indies). II. The substantive requisites for and the effects of the recogni- tion are dependent upon the lex {and fonim) patricB of the father. 1. If the national law does not recognize the institute under discussion, the act will not be given effect though performed abroad. Swiss law makes certain exceptions to this rule. 2. Art. 8, N. & A., provides that the effect of a voluntary recognition is governed exclusively by the law of origin, and is also subject to the home jurisdiction; also that the place of origin is that of the father. III. The formality required for this legal act must be specially considered. 1. According to French law (Art. 334, Civil Code) it is to be noted that : — {a) the recognition must be mentioned in the certificate of birth for the purpose of publication, and also entered in the registry of births ; {F) it may also take place later through an acte authentique. Accord- ing to French practice, a recognition executed before the birth is also effective. An oral recognition will not suffice under any circumstances {B., 1901, ii, p. 1015). 2. The law of the Netherlands also permits of a voluntary recognition by means of an instrument executed before the officials of the civil bureau (Arts. 336 and 338, Civil Code). 3. A recognition contained merely in a private will is insuffi- cient where the law of the place of execution requires an acte authentique. LAW OF THE FAMILY 273 4. If the national state does not recognize the institute, the observance of the most solemn formalities {^e.g. recognition in a public will, or in a public and a private will) will not establish a family relationship with the father. § 91. The Labors of the Institute with Reference to Marriage and Divorce. The Institute of International Law adopted a system of prin- ciples regulating the conflict of laws in matters of marriage and divorce. As the principles of law upon these subjects have now been definitely settled for Europe by the Hague treaties, the plan of the Institute will not be given here. It is printed in Annuaire, 1888-89, pp. 75-79- LAW OF THINGS § 92. Introductory Remarks. V. Bar, i, pp. 593-599, 623. Diena, / diritti reali consider ati nel diritto internazionale privato ( 1 895) . Donle, "Z?aj Fremdenrecht und die Lehre des int. Sachenrechts^'' in Archiv fur offentliches Recht, viii, pp. 249, 513. Dolk, Internationaal privaatrecht, Part II, "■ ZakenrechV (Utrecht, 1882). I. The standard of lex rei sitce advances to the foreground in the law of things, especially in respect of immovables. Things become objects of legal transactions in various relation- ships, e.g. : — 1. in contracts, e.g. sale, exchange, lease, loan for use, bailment; 2. in the property relations of married persons ; 3. in succession ; 4. in respect of property rights generally. There is a uniformity among the laws of all countries in deter- mining real or property rights in immovables by the lex rei sittB. It is immaterial whether such property belongs to natives or aliens. The acquisition and loss of title to land {e.g. by occupation, by alluvion), its possession and division between joint or common owners, etc., are matters which the territorial law must govern. Jurisprudence would cease to be a science were a different regula- tion tolerated. Were the personal law accepted as a standard in contesting title to land, there might be as many titles as there were litigants. The standard of the lex rei sitce is of remote historical origin. Bartolus says (No. 27): — "Quarto qucero, quid in his, qum non sunt contractus neqice delicta neque ultimcB voluntates ? Potie quidam habet domum hie et est qucBstio, an possit altius elevare ? breviter, cum est qucRstio de aliquo jure descendente ex re ipsa, debet servari consuetudo vel statutum loci, ubi res est." Argentraeus (Nos. 3 and 9) is to the same effect. II. But the lex rei sites should govern only property rights. 274 LAW OF THINGS 27S It should not be said bluntly that immovables and movables are subject to the law of their location. This proposition, it is true, has been widely spread abroad. Joannes Voet (^'Comment, ad Pand.," vi, p. 254) says, " tralaticium fit, immobilia regi lege loci, in quo sita sunt." Modern legislation is guilty of the same ambiguity. 1. The French Code civil states in Art. 3 : "Les immeubles, meme ceux poss^d^s par des itrangers, sont r^gis par la loi francaise." 2. The same phrase is found in Art. 1 1 of the Spanish, Art. 10 of the Argentinian, and Art. 13 of the Mexican code. III. It is particularly to be noted that the question of capacity to act in dealing with things is not governed by the lex rei sitce, but is determined by the personal statute. 1. Von Bar seems to be of a different opinion at i, p. 623, but with this however compare i, pp. 597-599. 2. There are some exceptions. («) The English and American doctrine requires that even the capacity to act be determined by the law of the situs, at least in respect of immovables. Compare Westlake, § 156 (p. 189), "All questions concerning property in immovables, including the forms of conveying them, are decided by the lex situs." Dicey accords (Rule 138). With regard to capacity to deal with movable property Dicey says (Rule 139) that the lex domicilii governs. He accompanies the rule with a question mark, and at p. 530 he says, " On this matter it is impossible to speak with certainty." Story gives the following (§ 463) as a rule of the common law : " It declares that the law of the situs shall exclusively govern in regard to all rights, interests, and titles, in and to immovable property." Story does not lose the opportunity of sharply emphasizing the significance of this principle. He says, " Of course it cuts down all attempts to introduce all foreign laws, whether they respect persons or things, or give or withhold the capacity to acquire or to dispose of immovable property." Art. ID of the Argentine Civil Code (see infra, V, 4) accords with the English and American practice. (J>) In Switzerland the capacity to deal with property is governed by the lex patrice, but only to a modified degree because of Art. 1O3, Fed. Stat. Pers. Cap. This provision makes no dis- tinction between movables and immovables, but regulates the capacity to act in transactions of commercial intercourse gen- 2/6 INTERNATIONAL CIVIL AND COMMERCIAL LAW erally. Under these circumstances the Swiss law in the interest of commerce becomes applicable as local law (not as the lex ret sitce) so far as status is involved (see § 58, III, 3, supra), {c) As to Germany, Art. 7, Introductory Act (at the end), states expressly that the limitation of the lex patria does not apply "to transactions by which a foreign piece of land is dealt with" ; so that here the lex patria governs exclusively without any "reference," as per Art. 27 (see § 58, III, i, supra). IV. In order to properly apply the rule of lex rei sites, it is neces- sary to separate real rights {in retn) from rights of obligation (in personam). 1. Only real rights are subject to the lex rei sita. 2. Contractual rights are governed by the rules of conflict regulat- ing obligations. (a) Contracts creating easements and incumbrances may create both real and contractual rights. But the two categories must be kept separate also here. (3) The same reasoning applies to pawns and pledges. 3. In a contract creating real rights, e.g. in the purchase of land, contractual obligations may also be included (e.g. a covenant against competition or some other restriction) . Here, again, the rules relating to obligations become applicable. V. Legislation upon the international law of things is sparse. The only references which can be given are as follows : — 1. Art. 3, French Code civil, already cited. 2. Art. 7, Italian Codice civile: — " Movable property is governed by the law of the nation to which the owner belongs unless a contrary disposition is made by the law of the country wherein it is situated. "Immovable property is governed by the law of the place where it is situated." 3. Art. 10 of the Saxon Code formerly in force provided : — " Rights in movable and immovable things, inclusive of rights of possession in the same, are determined by the laws of the place where the things are situated." We cite this statute, though superseded by the German Civil Code, as it properly indicates the appUcation of the law to rights of a real nature. 4. Arts. 10 and 11 of the Argentine Civil Code : — "Art. 10 "Immovable things located in the Republic are exclusively governed by the laws of the land in respect of their quality as LAW OF THINGS 277 such, the rights of the parties, the capacity to acquire them, the methods in which they may be transferred, and the formahties that must accompany the same. Rights in immovable property can be acquired, transferred, or lost only in conformity with the laws of the Republic. "Art. II " Movable things which have a fixed (permanent) locaHty and which are usually possessed without the intention of transporting them, are governed by the law of the place where they are situ- ated ; but such movables which the owner always takes with him or which serve his personal use, whether located at his domicile or not, as well as those which one possesses for sale or transpor- tation, are governed by the law of the domicile of the owner.'' 5. Arts. 790, 791, and 799 of the Property Code of the Princi- pality of Montenegro make the lex rei sitcz apphcable generally to real rights in movables and immovables and to the formalities in acquiring and altering such rights. 6. Zurich Code of Private Law, § 2 : — " Rights in land are governed by the law of the country in whose territory the land is situated. In determining rights in movable things, the momentary location of the thing and the natural relationship of the same to the local and provincial laws are also to be taken into account." The Swiss Federal Statute, N. Or' A., does not attempt to cover the law of things at all. 7. The draft for the German Civil Code contained provisions regulat- ing the international private law of things (§ 10), but they were not adopted in the Introductory Act. VI. There are no treaties bearing upon the law of things. The only provision to be cited is contained in the international agreement of 1890 relating to railroad freight traffic. Art. 22 con- tains a rule of conflict relating to the right of distraint enacted in Art. 21 : — " The effects of the right of distraint are determined by the law of the country where the delivery is made." If we were to include within this title, the law of incorporeal things, embracing the law of patents, trade marks, designs, models, and copyrights, then, of course, we would have to cite : — 1. the convention for the protection of industrial property of 1883 ; 2. the convention relating to the creation of an international union for the protection of works of literature and art of 1886, with the supplementary agreement of 1896-97. 278 INTERNATIONAL CIVIL AND COMMERCIAL LAW These treaties, however, merely insure a certain minimum of rights to members of the union. To this extent they create a uniform International Private Law within the union. There are some provisions giving effect to the laws of the individual states, and to this extent we have a contractually fixed international law of conflict. These treaties do not come within the scope of the present work. § 93. Immovables. V. Bar, i, 593. I. According to universal rule the lex rei sites controls real rights in immovables. II. The reasons assigned for this principle are various, viz. : — 1. That the sovereignty of the state cannot suffer a foreign system of legislation to be controlling, especially for immovables lying within its territory. This view is feudal by nature and if followed out would exclude the application of all foreign laws. 2. Voluntary subjection. This ground was assigned by Savigny (vol. viii, p. 169). From this it would follow that the will of persons and not that of law was controlling. The will of the parties, then, would be a subject of inquiry in each case. 3. The practical requirements of commerce; for if the acquisi- tion or loss of property were made dependent upon personal law, endless frauds and confusion would arise (v. Bar, i, p. 596). III. From the nature of the conditions prevailing, no other principle could here apply. The laws relating to immovables are allied with : — 1. the organization of ownership in the internal state. This embraces the definition of ownership, questions of abutting owner- ship, easements, limitations against building, water and mining rights ; 2. public credit, particularly in regard to mortgages. Of course it was not these public and economic grounds which resulted in the application of the lex rei sites in early times; but they may be cited as reasons for the retention of the doctrine. As a matter of fact, legislation upon this point is uniform every- where. LAW OF THINGS 279 In America and England Real rights in immovables are governed by the lex situs ; and whenever such rights are affected by the capacity of a party or by the solemnities of a transaction, the lex situs will also be authori- tative as to these questions (Welch v. Adams, 152 Mass. 74; Wood V. Clutterbuck, 10 Q. B. D. 403). The question as to what an im- movable is, is also determined by the lex situs (Chapman v. Robert- son, 6 Paige Ch. 627, 30). Leaseholds, though considered within the category of personal estate, are regarded as immovables in international relations (Despard v. Churchill, 53 N.Y. 192 ; Freke V. Carbery, L. R. 16 Eq. 461). A holographic will executed in accordance with the laws of France, where the testator was domi- ciled, was held void as to leasehold property situated in England (Pepin V. Bruyere, 1901, 83 L. T. Rep. 100). The question of jurisdiction is here of main importance. The forum rei sitce is alone competent in respect of rights in immov- ables, as it alone is capable of insuring the enjoyment of those rights, by ejecting parties wrongfully in possession. It has been held, however, that a court of equity will direct a trustee or other party over whose person it has jurisdiction, to perform an act affect- ing title to foreign immovables, when justice cannot be accomplished in any other way (Miller v. Dows, 94 U.S. 444; McElrath v. R.R., 55 Pa. St. 189; Cranstown v. Johnston, 3 Ves. Jr. (Eng.) 170). § 94. Movables. V. Bar, i, pp. 642-644. I. The lex rei sitce must also be taken as a first principle govern- ing real rights in movables. I. An interesting historical process led to this result. As early as the sixteenth century, the authors of the statutory theory denied the application of the lex rei sites to movables. It was considered unnatural to subject movable objects belonging to the same person to different laws, according to situation. This was especially so in respect of the property relations of married persons and in matters of succession. In order to avoid such a result, the following maxim was adopted: " mobilia ossibus inharent" or "mobilia personam se- quuntur." English jurists employ the phrase "personal property 28o INTERNATIONAL CIVIL AND COMMERCIAL LAW has no locality." Thus the statutory theory arrived at the propo- sition that the domicile of a person determines his right in mov- ables ; or, in other words, rights in movable things were regarded as statuta personalia. On the other hand, the Codex Maximilianeus Bavaricus subjected movables and immovables to the lex rei sitce. 2. It was Savigny who proposed to apply the lex rei sites to movables upon the theory of a voluntary subjection (viii, p. 178). He admitted, however, certain necessary exceptions, viz. : — {a) that certain movable things change their location continually, e.g. baggage, merchant goods for export and import (here the subjection theory could not apply and therefore the local law to which the owner is subject was held to control) ; {F) that certain movable things, e.g. the furniture of a house, a li- brary, art collections, inventory of a landed estate, are attached to a permanent location and therefore the lex rei sitce should control ; {/) that a number of other movable things represent a middle position, e.g. " merchant goods which the owner stores at a place other than his residence ; baggage lying at a foreign point" (here Savigny found it impossible to lay down any general rule). The adoption of Savigny's theory is readily traceable in the Zurich Code of Private Law, § 2 (cited stipra, § 92, V, 6). 3. The reasoning of Savigny is abstractly correct and has been widely followed. It is particularly true that there is an array of movables which in their nature are subject to continual change of location ; besides Savigny's example, we might cite such modern examples as velocipedes, automobiles, etc. Here the momentary locality is unimportant and that law should control where the objects belong, as determined by the use made of them by the owner. In this connection I again refer to Art. 1 1 of the Argen- tine Civil Code (§ 92, V, 4, supra). 4. The rule of the Italian Disposizioni (see supi-a, § 92, V, 2) seems, at first sight, surprising, but theory and practice arrive, though circuitously (with the formula of territoriality), at a recog- nition of the lex rei sites even in regard to movables. II. The rule is to be limited to rights of property. More particularly, it cannot be applied to rights in regard to the marital estate, rights of succession, etc. The maxim of lex rei sitce is therefore subject to exception wherever we are dealing LAW OF THINGS 28 1 with the estate of a person as a whole, unless internal laws (in- correctly) enact the contrary. III. It is to be noted that many rights which belong to the law of obligations are looked upon as movables under modern systems and treated as within the law of things (e.g. securities, bills of lad- ing, warehouse receipts'). In America and England A rule may be deduced from the authorities in both jurisdic- tions to the following effect : that the maxim of " mobilia ossibus inhcsrent," or " mobilia sequuntur personam " as it is more often expressed, will be recognized so far as to render it optional in deal- ing with rights in movables, whether to observe the lex situs or the law of the place where the owner is domiciled (Barnett v. Kinney, 147 U.S. 476; Warner v. Jaffray, 96 N.Y. 248; In re Queensland, etc., Co., I Ch. 536). Where the two systems of law are in abso- lute conflict, the lex domicilii must give way to the lex situs (Bar- nett V. Kinney, cited supra; Frank v. Bobbitt, 125 Mass. 112; Cammell v. Sewell, 29 L.J. Ex. 350; In re Queensland, etc., Co., cited supra ; Alcock v. Smith, i Ch. (C. A.) 238, 267). A distinction is also to be made between a transaction which is voluntary, in which case its validity and effect is governed by the maxim just quoted (Cronan v. Fox, 50 N.J. L. 417; Barnett v. Kinney, cited supra) and one which occurs by operation of law, in which case the domiciliary law alone controls (Russell v. Hooker, 67 Conn. 24; Cross v. Trust Co., 131 N.Y. 330, 339). NOTE In the draft of the new Belgian code, the fiction of " mobilia ossibus inhar- ent" is rejected in the following words : — " Que les biens meubles, comme Us biens immeubles, sont soumis H la hi du lieti de leur situation en ce qui concerne les droits reels dont ils peuvent Ure Vobjet.'" This precedent is approved by De Paepe in Revue de dr. i., 2d Series, ii, P- 433- § 95. The Maxim "locus regit actum " in the Law of Things. V. Bar, i, pp. 615-618. I. The form for the acquisition and loss of rights in things is governed by the situation of the thing dealt with. 282 INTERNATIONAL CIVIL AND COMMERCIAL LAW 1. We have pointed out (§ 55, supra) that the rule of "locus regit actum " does not apply in all cases. 2. A transaction dealing with a thing may affect the interests of an indefinite number of third persons as a real right presup- poses a right as against the world. It is for this reason that the acquisition and loss of real rights are often associated with certain forms closely identified with the rights themselves. We must distinguish in theory between the forms which are the basis for the estabhshment of : — (a) contractual rights ; and {d) those which are necessary for the creation of property rights. 3. The principal examples of forms necessary for the acquisi- tion of rights in land under modern systems are registry and pub- lication. These formalities are demanded in the purchase of land and in the creation of mortgages, easements, and other incum- brances. They are manifestly of such a nature that only the particular official or bureau within whose district the thing lies or the right is to arise can be considered competent (see § 313, German Civil Code). Thus the rule of " locus regit actum " must g^ve way where real rights in land are in question. These rights, for reasons already indicated, go hand in hand with the law of the particular state. II. TAe rule as stated above is generally recognized. 1. Art. II, German Introductory Act, enacts it expressly: — " The form of a legal transaction is governed by the laws which are authoritative for the legal relationship to be created thereby. However, the observance of the law of the place at which the trans- action takes place, will be deemed sufficient." The provision of Paragraph i, Sentence 2, does not apply to a transaction by which a right in a thing is created or dealt with. 2. The Japanese statute {Ho-rei), upon the application of the laws in general, contains virtually the same provision (Art. 8). 3. Laurent's draft for a new Belgian Civil Code provides (Art. 24): — " Formalities prescribed in the interest of third persons for the transfer of property or of personal and real rights are governed by territorial law." LAW OF THINGS 283 § 96. Ownership and Possession. I. The lex rei sitce applies to all of the following matters : — 1. The nature and range of ownership. Thus, were the social- istic theory of ownership to be adopted somewhere and an ahen were to acquire property within such state, or bring movables be- longing to him therein, they would become subject to that system. 2. The question whether an object or piece of land may be the subject of ownership. 3. The question whether lost or ownerless things become the property of the finder (or occupier). 4. The question of expropriation. 5. The question of the statutory limitation of ownership rights. Rules upon such questions as these would have no meaning and would fail of their purpose were they not applied also to alien owners, though ownership of land in itself is upon principle open to aliens or natives, residents or non-residents. 6. Statutory provisions upon the classification of things, e.g. as to what are movables and what are immovables. 7. The accomplishment of a change of ownership. 8. Rights of possession and the kind of actions maintainable for possession and for title. The requisites for the maintenance of such actions are dependent upon the conceptions of ownership. Here belong such questions as these : — (a) whether an action analogous to the Roman vindication {actio publiciand) be permissible ; {p) whether the person in possession be liable for his enrichment or for the usufruct. See also § 97, infra. 9. Provisions limiting the division of landed property for certain economic or socio-political reasons (see Mill's "Political Economy," vol. i, book ii, chap. v). 10. The usufruct of land. 11. The question of the extent and duration of servitudes and incumbrances. Here the law of the servient tenement will con- trol. 12. The question of the extent and abolition of real rights hav- ing their source in Germanic legal conceptions, such as : — {a) rights of hunting and fishing, {b) rights of entail or feu-rights. 284 INTERNATIONAL CIVIL AND COMMERCIAL LAW § 97. Limitation of Vindication in Respect of Movable Things. V. Bar, I, pp. 633-637. I. If vindication be prohibited at the place of acquiring movables, the limitation must be recognized everywhere. The lex rei sites is thus applied as the law of the place of acquisition. 1. In the interest of commerce, even though it be contra ratio- nem juris and contrary to the Roman law, vindication of movables is frequently prohibited or limited in the interests of bona fide purchasers. Where a person has purchased a movable thing in a foreign country, he may rely upon the foreign law, even though there be no prohibition or limitation upon the former owner's right of vindi- cation at the purchaser's place of domicile or in the lex fori. 2. This is not altered by the fact that the possessor may be compelled to deliver title in another state on account of a kind of amortization proceeding ; nor by the fact that one has voluntarily or by reason of police compulsion deposited a movable in a foreign state. The law applicable is and remains the law of the place of acquisition. 3. Conversely, the defendant cannot take advantage of limita- tions existing only by the lex fori and not by the law of acquisition. Savigny, it is true (viii, p. 187), was of the opinion that prosecution of ownership by action was a matter to be judged by the lex fori. But we are not dealing with a rule of procedure when the owner is confronted with an attack upon his rights ; in other words, it is a question of substantive law. Opposed to Savigny's view is Keller {"Pand.," § 12, p. 21, note 3). We must be careful not to be de- ceived by the fact that limitations upon ownership are frequently clothed in the dress of rules of procedure. II. The lex rei sites also controls the following questions con- nected with this topic : — 1. whether the purchaser is in bona or mala fide (German Imp. Ct., Civ. Cases, vi, p. 17); 2. whether the thing was really lost or stolen (here a foreign penal judgment may be of importance) ; 3. whether the purchase permits of a vindication only upon repayment of the purchase price, and whether it be material that the thing was acquired at a market or fair, or from a merchant handling that particular kind of goods ; LAW OF THINGS 285 4. whether the time has elapsed within which the purchaser has a conditional right of ownership (3 years according to Art. 2219, French Code civ.; 2 years, Art. 2146, Italian Codice civ.; 5 years, Art. 206, Swiss Code of Obligations). This period is not a limitation of action, notwithstanding it, has been placed system- atically under that heading in the French and Italian codes. After the period has elapsed, the right of ownership becomes absolute ; the contingency disappears. But even if it were a limitation of action, it would be governed by the law to which the issue was sub- stantively subject (§ 56, supra). In America and England The term "vindication" as employed by the author refers to the right accorded to the vendor against unpaid goods in countries having the Roman system of law. The Roman law did not gen- erally consider the transfer of property to be complete by sale and delivery alone, unless the vendor agreed to give a general credit to the purchaser. This right is, of course, not recognized in England or America, although the right of stoppage in transitu approaches it closely. It is generally held that the right of stoppage is not dependent upon the lex situs, but upon that of the domicile of the vendor. This is especially the case where the route of the goods is through several countries (Inslee v. Lane, 57 N.H. 454, Whiston ?/. Stodder, 8 Martin (La.) 95; Inglis v. Usherwood, I East (Eng.) 515). Story was inclined to hold the lex loci con- tractus as authoritative in such a case (§§ 322-340). The courts sometimes adopt the fiction that the legal site of the goods still remains in the state of the owner's domicile (Paradise v. Farmers' Bank, 5 La. Ann. R. 710). §98. Prescription. V. Bar, i, pp. 637-640. I. Prescription of immovables is universally held to be governed by the lex rei sites. II. The lex rei sites should also govern the prescription of mov- ables. In regard to Rule II there is a difference of opinion, espe- cially upon the following points : — 286 INTERNATIONAL CIVIL AND COMMERCIAL LAW 1. whether the lex rei sitce should control in preference to the lex domicilii of the person in possession ; 2. whether a distinction must be made between the limitation of real actions and prescription. The question becomes practical because the terms for prescription are sometimes different than for limitation (England, lo years; German Civil Code, §937, 10 years; France, 5 years; certain Swiss cantong, 2 years). Upon principle the lex rei sitce should govern the prescription of movables, as the basis of prescription is continued possession. Von Bar {" Lehrbuch," p. 97) is of the opinion that here the domi- ciliary law of the possessor should be authoritative, but that he may rely upon the lex rei sitce, if he can prove that during the whole period provided by the lex rei sites it was within the jurisdiction of that law. III. Where a change of domicile has taken place, the time of prescription should be reckoned proportionately. Of course, where prescription has already been completed in the jurisdiction where the thing was situated, a change of domicile is unimportant. But where it has not been completed, the ques- tion will arise whether that law governs which obtains at the place where the thing was last, or where it was first, or whether an aver- age shall be made. 1. The view that the law of the last place shall control has two objections : — (a) there is no reason of justice why the law of the last place should be preferred ; (i5) a thing for which prescription has not yet been completed could become at once the property of the possessor by reason of a judicious change of domicile. 2. A second view makes a prescription commenced under one system of law continue, notwithstanding a removal of the thing. This solution was proposed in the draft of the German Code (§ 10), but was not adopted in the Introductory Act. It is, how- ever, to be found in § 791 of the Property Code of Montenegro, which also states, " The law of this place (the first) governs also for the completion of the prescription and for all relationships arising therefrom." Accordingly, if the possessor resided at first in a country in which movables were prescribed in three years, and after one year removed to a country having a one-year period, there would still be two years necessary to complete prescription. 3. A third view is to reckon the period that has already elapsed LAW OF THINGS 287 proportionately. In the example above taken, the year elapsed would be counted as one-third of the time, and therefore, after the change of domicile, the possessor would still require posses- sion for two-thirds of a year, or eight months. This view seems theoretically correct ; by averaging the time {accessio temporis) recognition is accorded to the international commonwealth of law. In America and England Prescription must be distinguished from limitation of actions. The latter bars rights in personam only ; the former determines whether or not the possessor or occupier has acquired a right in rem- by lapse of time. It is settled that prescription will be determined by the lex situs, although, in the nature of things, this will usually coincide with the lex fori, as the action will be brought, more often than not, at the place where the thing is located (Hicks V. Powell, L. R. 4 Ch. 741 ; Pitt v. Dacre, 3 Ch. D. 295). With regard to the question discussed by the author as to the effect of a change of the situs, it is held that only when prescrip- tion has been completed at the old situs will the title be considered fixed. In such a case, then, the title will not be divested by the removal of the thing to a jurisdiction having a longer period of prescription (Brent v. Chapman, 5 Cranch 358 ; Shelby v. Guy, II Wheat. 361; Waters v. Barton, i Cold. (Tenn.) 43). § 99. Rights of Pledge in Movables and Choses in Action. V. Bar, i, pp. 644-658. I. For determining the legal interpretation of rights of pledge in ■movables, the lex rei sitce at the time of pledge is controlling. As a practical matter, this law will usually be identical with the lex domicilii of the debtor. The principle has been enunciated by the German Supreme Court of Commerce (xi, p. 24). 1. A vested right of pledge does not abate if the thing is taken into another jurisdiction, where such a right is not recognized. That is to say, legal transactions concluded in accordance with the law of the former location must be respected. 2. This is exclusive of prohibitory laws or rules of an absolute territorial nature. Where general rights of pledge in movables (i.e. without specifying the things and without change of posses- sion) are unknown, the exercise of the right is, of course, incon- ceivable (Seuffert, xxxi, No. 194). Thus, for instance, if a valid 288 INTERNATIONAL CIVIL AND COMMERCIAL LAW pledge has been made in a jurisdiction where no change of possession is necessary, and the debtor takes the object to a state which demands transfer of possession, the right of pledge continues, but its effect has been suspended. If the debtor returns to the original state, or removes to a state which does not require the transfer, the right reattains its actionary power. 3. The rule applies also to dead pledge. II. The distraint of rights (choses in action') is governed by the lex domicilii of the debtor. The question arising here is whether the obligation still exists after a distraint in favor of the first creditor ; the distraint of the chose in action may eventually involve a transfer (compare § 1 10, infra). 1. To the class of cases where it does not, belongs distraint of insurance policies not payable to the bearer. In this case the act of distraint proceeds according to the rules of the law of things. 2. Distraint of claims secured by hypothec are also subject to the lex ret sites. In America and England The doctrine stated at II supra has been followed by many courts upon the theory that the situs of the debtor's obligation, in contradistinction to the creditor's right, is at the debtor's domicile (King V. Cross, 175 U.S. 396; Lerkin v. Wilson, 106 Mass. 120). But for the purpose of the distraint, the situs may also be treated as being in any State in which the debtor may be found (Morgan V. Neville, 74 Pa. St. 52, 57; R.R. v. Sturm, 174 U.S. 710. Con- tra, R.R. V. Nash, 118 Ala. 477). A complete r6sum6 of the various theories prevailing in America may be found in Minor> "Conflict of Laws," pp. 285-290. § 100. Rights of Pledge in Immovables. I. The lex rei sitce governs contractual rights of pledge. I. This principle applies : — (a) To the existence, range, and rank of rights of pledge. This is with the reservation that the duty to grant a right of pledge arises from a contractual obligation. (3) To the form of creating the right. Real rights in land can LAW OF THI,NGS 289 be created only in the manner provided at the situs of the land. The observance of another form can, under certain circumstances, be the basis of a right to a hypothec. {c) To the notification recaUing the hypothec loan. 2. Where a right of lien or pledge in immovables extends into another jurisdiction {e.g. the parts and appurtenances), the system of law prevailing at the location of the main object will govern. Such cases are easily possible internationally (and between states and cantons) under modem conditions ; examples are furnished by electric plants with their branch installations, or primary and secondary stations, by pipe lines for water and gas. The distance is immaterial so long as there is an uninterrupted connection between the land and the thing; also whether the connection is horizontal or vertical, or if the thing be in the same or different jurisdiction as the land. The German Imperial Court declared a pipe line extending throughout a whole communal district as part of the land on which gas works were erected (Civ. Cases, vol. 39, pp. 204-208) ; and likewise with respect to an electric light estabUshment which had a network of conductors taking the current from the brushes at the central station (Imp. Ct., Civ. Cases, vol. 48, p. 267). Difficulties arise where the conception of appurtenances is made so narrow as to embrace only whatever lies with, in, or upon a piece of land (Zurich Code of Private Law, § 55, c). Based upon this section, the Supreme Court of Zurich declared that distraint was excluded from whatever objects lay outside of the main estab- lishment. The rule cited really cuts off a broader view of appur- tenances. The court itself said that this condition of the law was insufficient for the needs of modern times ; technical possi- bilities of distributing power with costly establishments should be recognized economically so as to constitute units for obtaining credit through pledge or distraint {H. E., xii, pp. 91-93, and xx, pp. 281-285). The will of the parties alone is not authoritative here, because, as a rule, fixed requisites are provided. II. Rights of pledge by operation of law are governed exclusively by the lex rei sitce. Examples of these are furnished by rights given to married women and minors in countries under French law (Art. 2135, Code civ.). III. Rights of pledge and distraint in railroads involve peculiar questions not within the scope of this treatise. 290 INTERNATIONAL CIVIL AND COMMERCIAL LAW IV. Rights of pledge over seagoing ships will be considered under International Maritime Law (§ 202, infra). § 101. Roguin's Project to regulate the International Law of Things. At the third Conference of The Hague, Roguin presented a proposition to regulate the conflict of laws in regard to things, bearing the title, "Dispositions sur les droits r^els." The subject has not yet been disposed of. The project is reported in Actes de la troisikme conference de la Haye, 1900, p. 67. LAW OF OBLIGATIONS 102. Introductory Remarks. I. In order to obtain a general view of the various theories adopted by the nations individually as to the rights and duties of aliens in the inland and of natives abroad, reference may again be made to § 7, supra. II. In regard to status in connection with the law of obligations it may be noted : — 1. that the discussions at §§ 57 et seq. apply here; 2. that especially in the law of obligations do Art. 73, Intro- ductory Act (Ger.), and Art. 1O3, Fed. Stat. Pers. Cap. (Swiss), affect the application of territorial law ; 3. that the law of England and America allows the lex situs to control in contracts relating to immovables. All contracts relating to land are governed by the lex situs according to English law. This applies to the capacity to enter into such contracts as well as to all other questions relating thereto (see Dicey, p. 759). The rule is somewhat differently stated by Westlake, who (at § 216, 3d ed.) says, "Contracts relating to im- movables are governed by their proper law as contracts, so far as the lex situs of the immovables does not prevent their being carried into execution." In this way a different system of law could become applicable under certain circumstances, as for in- stance the lex loci contractus. Compare also pp. 770 and 771, Dicey. III. The personal statute of the obligee, just as that of the obligor, is, under this head, regularly determined by the law of the domicile, with respect of substantive propositions of law. The domicile being the central point of commercial life, it plays a most important part in the law of contracts. IV. Material to be drawn from legislation is rather scant. A. Positive Law I. The French Code civil, with the exception of Art. 3, contains no rules of conflict bearing upon the law of obligations. 291 292 INTERNATIONAL CIVIL AND COMMERCIAL LAW 2. The Italian Disposizioni contain provisions in Arts. 9 and II. Incidentally we may, already at this place, refer to Art. 58, Codice di commercio. 3. The Austrian Civil Code contains two rules at §§ 36 and 37. 4. The German Introductory Act is silent upon the point, not- withstanding that the original draft of the law had proposed certain propositions (§§ 11-15). In Birkmeyer's " Encyclopasdia of Law" (1901), p. 372, Bem- hoft states the situation upon the basis of the new imperial legislation to be as follows : — " The law applicable to obligations is, in the first instance, that which the parties themselves intended that the transaction should be subject to. If this intention is not to be arrived at, the old question arises as to whether the law of the place of performance, or the per- sonal law of the obligor, or perhaps even — at least in certain respects — the personal law of the obligee, is authoritative. The question is made even more complicated through the Introductory Act, as it is not clear whether the personal law is determined by nationality in regard to obligations, or by the domicile, as the action may be brought there." 5. The codes of some of the Swiss cantons contain certain provisions, e.g. Zurich, § S ; Zug, § 4 ; Schaffhausen, § 5 ; Aargau, §"■ The law of Switzerland contains no direct statutory provision as to what substantive rules are applicable to its own citizens when entering into contractual obligations abroad (Art. 8223, Code of Obhgations, refers only to the law of bills). The Fed. Stat., N. & A., refers to their position only in matters of the person, the family, and succession. As the Swiss Code of Obligations now regulates transactions relating to movables, such former cantonal laws as excepted the case of an agere in fraudem legis domestic^ are repealed. How- ever, the following is to be noted : — {a) that the Code of Obligations does not regulate every contract relating to movables ; (3) that certain cantons have provided some particular formaUty for the purpose of making the transaction more solemn. Such rules still hold good, and are only limited to a certain extent by Art. 24, N.&' A. LAW OF OBLIGATIONS 293 6. The Property Code of Montenegro contains the following provisions : — "Art. 792. Rights and obligations arising out of a contract are to be judged according to the laws of that place which the parties have designated, or which, judging from the nature of the transaction or other circumstances, they must have had in mind at the time of executing the contract, or which they would have designated had they thought of it. " This may be : the place of executing the contract, or the place of performance, or the place where the issue growing out of the con- tract is to be judged, or finally, that place which, from the circum- stances prevailing, might be designated as the central point of the transaction. But this general rule applies only to rights in personam growing out of the transaction (871), while rights in rem arising therefrom remain subject to the law of the place where the thing is located. " Art. 793. Claims for damages in tort are to be judged by the laws of that place where the act occurred from which the damage arose, with the exception of those cases mentioned in Art. 796, c." 7. The law of the Congo provides as follows (H^bettes et Petit, " Les Codes du Congo" 2d ed., p. 37): — " Art. 5. The form of transactions inter vivos is governed by the law of the place where they are to be performed. Nevertheless, transactions of a private nature may be undertaken in the form permitted by the national laws of all of the parties. " Unless a contrary intention of the parties appear, contracts are to be governed by the law of the place where they are concluded, in respect to their substance, their effect, and manner of proof. " Unilateral obhgations (^quasi-covAxz.c\s,, torts, or quasi-\a\\.i) are subject to the law of the place wherein the act occurred upon which the obligation is founded." 8. The Japanese statute {Ho-rei) of 1898, upon the application of the laws in general, contains the following provision (Art. 7) : — " The question as to which law shall be authoritative in deter- mining the operation and validity of a legal transaction is governed by the intention of the parties. " If this intention cannot be established, the law of that place shall be authoritative where the transaction took place." Further, Art. 12 provides: — " The vaUdity of a transfer as against third persons is determined by the law of the debtor's domicile." 294 INTERNATIONAL CIVIL AND COMMERCIAL LAW B. Unofficial Projects 1. Domin-Petrushevecz, Arts. igj^-igS (MqiYi, " Die Kodification des int. Civ- und Handelsrecht," pp. 94-9S). 2. Mommsen, \%6, "j, and 18 {id., pp. 78, 81). 3. Dudley-Field, " Draft Outlines of an International Code," vol. i, Arts. 607 et seq. 4. Dicey. This jurist, at pp. 567-570, lays down the following propositions (rule 149, sub-rule 3): — " In the absence of countervailing considerations, the following presumptions as to the proper law of a contract have effect : — "First Presumption. — Prima facie the proper law of the con- tract is presumed to be the law of the country where the contract is made {lex loci contractus) ; this presumption applies with special force when the contract is to be performed wholly in the country where it is made, or may be performed anywhere, but it may apply to a contract partly or even wholly to be performed in another country. "Second Presumption. — When the contract is made in one country, and is to be performed either wholly or partly in another, then the proper law of the contract, especially as to the mode of performance, may be presumed to be the law of the country where the performance is to take place {lex loci solutionis)." 5. Laurent, particularly Arts. 14-17 {" Kodif.," p. 19). In addition, reference may be made to the suggestions of the Belgian legislative committee {id., p. 23). C. Treaties 1. There are no treaties regulating the international law of obligations. 2. We might place under this heading the International Con- vention of 1 890 upon railway freight traffic. But it is to be noted that this treaty established a tmiform system of private law inter- nationally, in respect to railway freight traffic. For this reason (with the exception of Art. 22) it does not attempt to create an understanding upon the conflict of laws. 3. Especially to be noted are : — (a) the proposed treaty of Lima, 1878 {Kodif., pp. 91 ei seq^ ; (3) theproposed treaty of Montevideo («',me Conference, p. 20) it is explained that this refers to "personal capacity to act" LAW OF SUCCESSION 383 or " status as such." But in view of the terminology adopted by the jurisprudence of most nations, the article is incorrectly drawn. Lain6, as well as myself {Actes, 1900, p. 118), opposed it for the reason that the word "capacite" has two different significations, which unite also in the German word " Erbfdhigkeit." Lain6 there- fore proposed to add the words, " so far as the exercise of their rights is concerned" {Actes, p. 141), while I proposed that the article should read, " The disabilities of legatees and donees to receive property by succession, resulting from reasons personal to themselves, are governed by their national law" {Actes, 1900, p. 118). But neither amendment was accepted by the Conference {Actes, p. 142). 4. The Argentine Civil Code provides (Art. 3286) : — " The capacity to succeed is governed by the law of the domicile ' of the presumptive heir at the day of the death of the deceased." But it appears from Art. 3283 that only actual capacity to act is intended. Art. 3283 provides : — " The right of succession to the estate of the deceased is governed by the local law of the domicile of the deceased at the day of his death, whether the heirs be natives or aliens." 5. According to what has been said above, the system of law governing the estate is properly applicable to the following questions in particular : — {a) Whether the claimant possesses the degree of relationship necessary to succeed, and in what order of succession he shall succeed. (3) Whether the claimant is to be regarded as legitimate, adopted, or legitimated. () where the personal statute of the presumptive heir does not recognize the incapacity, but the country administering the inheritance enacts the veto. We have seen under another heading (§ 136, supra) that, as a matter of principle, the law to which the estate generally is subject will control in both of these cases. 2. There is, however, something to be said in favor of the view that a person who has taken the votiun paupertatis has re- nounced, at least for himself, all rights of succession ; the con- trary view results in an enrichment of the foreign monastery at the expense of the local relatives of the deceased. BouUenois {"Traits de la personnalit^ et de la reality des loix," i, p. 65) characterizes the monk as follows : " Cet homtne cesse d' avoir auctine agnation dans ce monde, elle est r^serv^ pour le del." Laurent (^" Droit civil inter- natio7ial" vi, Nos. 1 78-1 80) reaches a different result. He con- siders monasticism a disgraceful element in modern society, and the voluntary servitude of the monk to be the outcome of a folly which law should not respect. In other words, the vow should not be regarded as an act of free will, and the foreign country where such disability does not prevail ought not to construe it as an LAW OF SUCCESSION 419 incapacity to succeed. Laurent then points out the startling result that, by regarding the foreign monk as having full capacity, the local state actually favors monasticism, thus tending to accomplish an end intended to be avoided. But this, he hastens to add, is merely a point to be considered by the legislature and does not affect the legal conception. Story (" Commentaries on the Conflict of Laws," 8th ed., § 104) declares himself against the recognition of foreign disabilities on the ground of heresy, excommunication, infamy, and the like, re- garding them as strictly territorial. See also § 92. Wharton (" Conflict of Laws," 2d ed., § 107) says : — " It has also been questioned whether an ecclesiastic who has made a vow of poverty, which vow the law of his domicile regards as binding and operative, is capable of inheritance in a foreign land. Eminent German jurists hold that when tlys vow is voluntary, the incapacity is extra-territorial. But while the courts of his domicile might enjoin him from accepting such inheritance, his incapacity in this respect would not be recognized in countries where this form of civil death is not sanctioned." § 152. Rights of the State in Succession. V. Bar, ii, p. 351. Fedozzi, Gli enti colUttivi nel diritto internazionale frivato, pp. 66-98. Mamelok, Die juristische Person im internaiionalen Privatrecht, pp. 131-141. L The question as to which state shall have the right to property left without an heir is dependent upon the legal construction to be given to this right and also upon whether the system of universal succession be recognized. Properly, the personal statute of the de- ceased should determine. I. Burgundus was chief among the ancient authors occupied in determining the nature of the right which the state has in bona vacantia {"Tractatus," xiii). The right admits of various construc- tions, viz. : — (a) As a true right of succession. Savigny held that the right of the fisc was in its legal nature a true and real right of succession, though not so called (viii, p. 315). He therefore proposed to apply the lex domicilii irrespective of the loci of the parts of the estate. This view has been adopted by Dernburg, Vangerow, and Windscheid. The Roman authorities seem to favor it too {e.g. 420 INTERNATIONAL CIVIL AND COMMERCIAL LAW Lex 4 C. De bonis vacantibus, lo, lo), as does also the German Civil Code (§§ 1964-1966). In modem times, the tendency in thought and speech is so to do, even in countries where this is not the legal conception. iV) As a right of occupation or of sovereignty. The inheritance becomes here "res nullius," and the fisc of the state rei sitce takes possession of property within its territory which, according to its own law, has no heir. This is the theory of the French Civil Code (Art. 713), and of Austrian and Itahan jurisprudence. It was also followed in the projected Treaty of Lima (Art. 24). (/) As a right of escheat belonging to the feudal overlord so far as concerns immovables. This conception prevails in England and America, and harmonizes with the fact that the idea of universal succession, according to which the estate is regarded as a unit, has not been adopted there (Wharton, §§ 602-603). [The doctrine of these jurisdictions wag squarely determined in a recent Enghsh case (/« re Barnett's Trusts, Ch. Div., March, 1902, 112 Law Times 500). An Austrian citizen, who had died intestate and without kindred while domiciled at Vienna, left certain personal property situated in England. The Austrian Finance Minister claimed the property as personal heir by the law of succession prevailing at the deceased's last domicile. It was held that the property fell to the English Crown, not by suc- cession, but in exercise of its sovereign power ; not through the person of the deceased, but as glans caduca, " the acorn which had fallen from the tree." — Trans.] 2. As the personal statute of the deceased is the most general standard for the universimi jus defuncti, this system would seem the correct one to apply here too. This is the view of von Bar (ii, p. 351). Thus, where the lex patria is applicable to succession in general, it will be the fisc of the state of which the deceased was a citizen that will be considered the heir at law. The Hague Conference of 1894 proposed the following (Art. 10):- " Inheritable property shall not be acquired by the state within the territory of which it is situated, except in case there be no party entitled thereto according to the national law of the deceased." In the treaties proposed by the Conferences of 1900 and 1904 this provision was omitted. II. The question in hand has been regulated by treaty between certain countries. LAW OF SUCCESSION 42 1 1. In the Consular Treaty of 1866 {Declaration interpretative) between France and Brazil, the following provision is to be found : — " If the estate of a subject of one of the two contracting powers, who has died intestate in the territory of the other, becomes vacant, that is to say, if no relative or heir within a degree of inheritance sur- vive him, the estate, movable as well as immovable, shall devolve upon the state within whose territory he has died." 2. In the Consular Treaty of 1879 between Italy and Servia, and also that of 1880 with Roumania, a provision to the same effect is contained (Art. 3): — " In the absence of heirs or representatives, the estate shall be dealt with in the same manner as that of a citizen of the country under like circumstances.'' The Consular Treaty between Italy and Brazil is of like effect (Fedozzi, p. 82). Catellani {" Tl diritto internasionale privato," etc., iii, p. 795) raises the question as to whether these regulations are in accord- ance with the domestic Itahan law of conflict, and Fedozzi (p. 82) replies that they represent a flagrant contradiction of it, " Questo regolamento di partita in dare ed avere i illegale di f rente al nostra positivo. ..." III. Suggestion for future legislation. It would seem to be a rational solution of the problem, to pro- vide for a division of heirless estates between the national and the domiciliary state. NOTE The passage in the Corpus juris., L. 4 C. de bonis vacantibus, 10, 10, is as follows : — " Vacantia moriuorum bona tunc adfiscum jubemus transferri, si nullum ex qualibet sanguinis linea vel juris titulo legitimum reliquerit intestatus heredem." The general terms of the lex would seem to warrant construing it as a rule of conflict. § 153. Treaties regulating the Law of Succession. I. In view of the fact that the Law of Succession is of such great importance in international intercourse, many states have concluded treaties regulating questions incidental to this topic. I. The usual, rules of interpretation apply to such treaties, and' 422 INTERNATIONAL CIVIL AND COMMERCIAL LAW as has already been said, they are subject to the function of the courts (see § 50, I, 3, supra). We will not attempt here to cite all the existing treaties deal- ing with questions of succession; we will simply select a few as examples. 2. Where matters of succession are regulated by treaty in gen- eral terms, all incidental questions are intended to be covered, unless special exceptions are mentioned. The following points may reasonably be deemed included : — (a) succession by will or by operation of law, even though both categories are not separately treated ; (J>) the amount of the peremptory quota and the question of exemp- tion from advancing security ; (c) collation or deduction for advances ; {d") rules in regard to contracts inter vivos, so far as they are intended to take effect only with death ; their formal and substantive validity. Treaties frequently make a particular law and forum the stand- ard {e.g. patriez or domicilii) without defining the application of the standard in detail. In such cases the law or forum designated is authoritative in regard to accessory, conservative, and pre-judicial questions (Vincent, Revue de dr. i., 1889, p. 123); also in regard to preliminary matters incidental to the succession, e.g. the taking of an inventory, the appointment of an administrator in case of a dis- pute. These matters are all within the law of succession. The hereditatis petitio embraces as causa major all other incidental questions, such as the validity of an adoption relied upon as the basis of the right of succession, loss or renunciation of a former citizenship, or acquisition of a new one. There are practical reasons why the hereditatis petitio should have special significance where treaties have been concluded, and why a uniform law and forum should be provided. A multiplicity of actions is thereby avoided as a defendant is saved from being burdened with a whole series of actions in different states. A uni- form fixed law and forum also constitute a guarantee against the theoretical and practical possibility of having contradictory judg- ments in different states. By fixing a uniform law and forum, the treaties should and do have in mind the universality of the estate and the prevention of its dissection according to the territorial situa- LAW OF SUCCESSION 423 tion of its various parts. Neither should the action to establish substantive rights of succession be permitted to be divided be- tween two sovereign jurisdictions. On the other hand, claims arising out of marital property rela- tionships are to be distinguished from rights of succession. Such claims are based upon the contention that particular property does not belong to the successory estate at all, though the spouses usu- ally have objective rights of succession too. II. The treaties now existing support various systems. The following treaties support the system of the lex patrice and the forum patrice : — {a) the treaty of 1866 between France and Austria {Journal de « la condition juridique des sociith anonymes fran(;aises en Alsace- Lorraine,^'' Journal de dr. i., 1882, pp. 129, 260; 1883, p. 605. BELGIUM Guillery, " De la condition Ugale des sociith Hrangires en Belgique," Journal de dr. i., 1883, p. 225. HOLLAND Molengraaff, "De la condition des sociith itrangires dans les Pays-Bas^^ Journal de dr. i., 1888, p. 619. ITALY Lefevre, " De la condition des sociites itrangires en Italie,'" Journal de dr. i., 1884, p. 234. Danieli, "De la condition des sociitis itrangires en /talie,"" Journal de dr. i., 1888, PP- 17, 330- DENMARK Hindenburg, " De la situation Ugale des sociitis itrangires,'" Journal de dr. i., 1884, p. 35. ENGLAND Foote, " De la condition Ugale des sociitis itrangires en Angleterre^'' Journal de dr. i., 1882, p. 465. RUSSIA Barkowski, " De la condition des sociitis itrangires en Russie^'' Journal de dr. i., 1891, p. 712. ROUMANIA "De la condition Ugale des sociitis itrangires en Routnanie^'' Journal de dr. i., 1889, xxvi, p. 977. GREECE Euclidfes, "De la condition Ugale des sociitis itrangires,^'' Journal de dr. i., 1889, p. 59. V. Streit, "Die Rechtsstellung der auswartigen Aktiengesellschaften in Griechen- land" Zeitschrift fur internal. Privat- und Strafrecht, vi, pp. 193, 314. § 166. Branch Establishments. I. The substantive requisites for the existence of a branch estab- lishment within the meaning of the statutes is governed by the per- sonal statute of the principal, i.e. as a rule, the domiciliary law. I. A branch establishment (German = Zweigniederlassung ; French = succursale) is one which is located at a different place from that of its principal, and which permanently conducts busi- ness of a like order. Its connection with the principal business 448 INTERNATIONAL CIVIL AND COMMERCIAL LAW lies in the economic relations between them, but it is necessary that to a certain extent its function and sphere of activity be inde- pendent. As the conception has been developed on the Continent of Europe, a function of a merely technical nature (^e.g. with refer- ence to a factory) will not serve to create a branch establishment within the meaning of the laws. It is immaterial that it have power to purchase goods, if this be merely incidental to the con- duct or execution of the principal business. Thus none of the following will fall within the meaning of the term "branch establishment." (a) Agencies, as of insurance companies. These are merely inter- mediaries for introducing business, while the transaction itself is closed at the seat of the company {A.E., xviii, p. 21). How- ever, a general agency of an insurance company comes within the meaning of § 21, German Rules of Civil Procedure. (3) Places for storage. {c) Salesrooms or warehouses for consignment. (d) Austrian merchants usually have " branches " in Vienna. Large modern industrial establishments have special " bureaux" Eng- lish and American concerns have their " representatives." In all of these cases a legal independence in dealing with the public is, as a rule, lacking. {e) Railroad stations ; these are simply part of the whole apparatus, and do not execute transportation contracts, though they may conclude them. (_/) Manufacturing agencies for giving out raw material to workmen {e.g. weavers of silk), to be received back manufactured, and forwarded to the main office. Such an agency is merely an intermediary (A.E., xxv, pt. i, p. 415). {g) Emigration agencies of shipping and railroad companies. 2. The principle as above stated is recognized by the following statutes : — (a) Portuguese Commercial Code, Art. 55, provides: — " Foreign commercial companies desiring to establish a branch office in Portugal must present to the commercial registry a cer- tificate of the proper Portuguese consul, certifying that they have been created and are existing pursuant to the laws of their own country." (J)) Spanish Commercial Code of 1885 contains a similar provision in Art. 21. COMMERCIAL LAW PROPER 449 3. According to Swiss law (Art. 624, Code of Obligations) the duty of registering business firms in the commercial register is laid upon the branch manager. This can be done either by presenting a transcript of the registry made at the place of the principal busi- ness, or, if a commercial registry is not in force there, by obtaining the certificate of an official, to the effect that the firm has a legal existence at that place (Rules of the Federal Council of 1 890, relating to the Commercial Register, Art. 22). II. Local law is authoritative, however, in a number of directions. 1. A dissolution of the branch establishment may result from certain causes of a public nature fixed by local law. Thus : — (a) § 32, in connection with § 13 of the German Commercial Code and § 141, Imp. Stat, of 1896, upon Matters of Voluntary Juris- diction, provides for dissolution in the event of the bankruptcy of the principal establishment. § 13 provides that registry shall be made in each district in which a branch is located, in the same manner as in that of the main establishment. This is expressly made applicable to establishments having their princi- pal seat in a foreign country, unless the foreign law makes a modification necessary. The exception here in view is in the event of the foreign law making obligatory the registry of certain facts not required by the law of the branch business {e.g. Art. 230 of the Italian Commercial Code). {B) Art. 28 of the regulations of the Swiss Federal Council, above cited, provide for the dissolution of the branch when the principal business has ceased to exist. 2. The internal law applies also in regard to : — {a) the formal requisites for the creation of a branch; (F) the use of the firm name ; (J) registration and publications (§§ 13 and 201, German Comm. Code) ; if the law of the principal establishment does not con- tain the system of commercial registry, proof of its legal existence must be given in some other manner, e.g. through the judicial or diplomatic officials ; id) industrial police regulations. Thus where the law prevailing at the branch requires a formal authorization to conduct the particular business, this must be obtained irrespective of the personal statute. 3. By § 211 of the Hungarian Commercial Code, all foreign corporations in Hungary are compelled : — 4SO INTERNATIONAL CIVIL AND COMMERCIAL LAW "to submit themselves to the internal laws and jurisdiction in all matters of dispute arising out of transactions concluded by their local representatives.'' The Hungarian Code contains, in §§ 210-214, detailed provi- sions relating to " branches and agencies " (Borchardt, iii, p. 938). 4. The Japanese Commercial Code contains detailed provisions in regard to branches, under the title of " Foreign Commercial Entities" (Arts. 255-260). (a) Art. 255 provides as follows : — " If a foreign commercial entity establishes a branch in Japan, registry and publication thereof must be made in like manner as of an entity of the same or similar nature created in Japan. " A foreign commercial entity establishing a branch must also designate a representative in Japan, and register his name and address at the time of registering the establishment of the branch. "The provisions of Art. 62 apply correspondingly to the representative of a foreign commercial entity." {b) Art. 62 : — "An associate with power of representation is entitled to undertake transactions in or out of court relating to the business of the organization." § 167. Protection of Firm Names. Pasquale Fiore, " De la proteciion dn nom commercial cfapris le droit international positif" Journal de dr. i., x, pp. 19-26. I. Just as in International Civil Law, so in Commercial Law, a name fixed by a person's civil status must be recognized everywhere. The firm or business name of foreign individtial merchants and for- eign business etttities are to be recognized and protected as a legal right in international intercourse according to the standard of the personal statute. I . This attitude may be referred to the conception of the status, but it suffices merely to say that it is internationally the view of to-day, and is in accordance with the interests of commerce. It follows also : — (a) that the firm name of foreign merchants must be recognized in the form permitted by the foreign law, even though not corre- sponding to the native law ; (J>) that the name of a foreign company is to be recognized even though all or a part of it be in a foreign language {societe par actions), or contains a designation peculiar to the foreign law (limited companies). COMMERCIAL LAW PROPER 45 1 2. The protection accorded to business names and to trade- marks has often been interpreted in the light of a kind of privilege in favor of home industry. This would result in making the right depend less upon the one using the name, and more upon the terri- tory in which it was used. The conception is, however, untenable. 3. A special sanction has been given to the right of business names by the treaty entered into between the principal nations of the world at the Paris International Convention of 1883 for the Protection of Industrial Property. Art. viii provides that : — "a trade name shall be protected in all the countries of the Union without the necessity of registration, whether it forms part of a trade-mark or not." Other treaties, e.g. between Germany and Switzerland, 1894, regu- lating patent and trade-mark law, also deal with this question. The treaty mentioned makes the observance of local formalities necessary. 4. The business names of branch establishments are likewise to be recognized. Of course the addition of a supplementary term {e.g. the word "branch" or "Jiliale") may be compelled for the sake of differentiation. In Germany, it has been said that the use of personal designations for stock companies is not permissible even for branch establishments, even though the law of the seat permits it (Deutsche Jurist. Z., 1901, p. 137). II. Coercive provisions of the internal law are excepted from the above rule, especially those for the prevention of trade deceptions (§§ 182, 20, 3O2, and 3O3 German Commercial Code; Arts. ?>6%, 873, Swiss Code of Obligations). 1. In France the principle prevails that aliens are entitled only to "droits naturels" ; only an alien who has been authorized by decree to establish his domicile in France, is permitted the enjoy- ment of all "droits civils " (Arts. 1 1 and 13, Code civil). The Court of Cassation, as late as 1870, held that, in the absence of such decree, an alien could not maintain an action for the usurpation of his firm name. The Act of 1873 makes the right of aliens to invoke French rules of law upon this point dependent upon whether reci- procity is assured either by statute or by treaty. 2. In Belgium, too, the early French doctrine prevails. The Court of Brussels held that the provisions of the penal code against "usurpation de noms" were enacted essentially to protect 452 INTERNATIONAL CIVIL AND COMMERCIAL LAW national industry, and that foreigners having no permanent settle- ment or establishment in Belgium have no right to sue on account of usurpation. Pasquale Fiore (as cited, p. 21), on the other hand, informs us that the Court of Cassation applies the provisions of the Penal Code to everybody, without any distinction between natives and aliens. 3. In Germany, a judge of registry has held that the principle above laid down (I) must, according to Art. 22, Introductory Act of the Commercial Code, be subject to exception in the case of a foreign corporation using a personal name without showing that the proprietor of the business is a stock company. It must be taken that German law is absolutely opposed to purely personal designations for stock companies. The danger that the public will be deceived as to the real nature of the organization by a personal designation without a supplementary term, is just as great in the case of foreign as in the case of domestic corporations, and this danger must be obviated for all cases {Deutsche Jurist. Z., 1901, P- 137)- III. Under certain circumstances, a business or firm, name m.ay serve as a trade-mark. In such a case, the requisite for its protec- tion abroad is that it should be recognized in the hom.e state. The foreign protection is merely accessory. This is true also outside of the Industrial Unioti. Thus, a mark which cannot get protection in its own country is not protected abroad, and the fact of its being registered abroad makes no difference (see also von Bar, ii, p. 274). The home state of companies or other juristic persons is that wherein their principal business seat is located. It follows, then : — 1. That protection will not be accorded where the home state does not recognize an exclusive right, say for the reason that the name has become common property in the particular branch of manufacture. It was so held in Germany in respect to the name of " Liebig " as used by the Liebig Extract of Meat Co. (Imp. Ct, Civil Cases, xl, p. 63; xlvi, p. 131). 2. The right of protection is lost if the use of the name as a trade-mark has been extended to another person by contract, and the transferee's right is not recognized in the home state, e.g. : — (a) either because such a contract is there held to be illegal ; (b) or because it has thus become common property. COMMERCIAL LAW PROPER 453 [The International Convention for the Protection of Industrial Property referred to in this paragraph was acceded to by Great Britain, March 17, 1884, and by the United States of America as of May 30, 1887.] NOTE Pasquale Tiort, Journal de dr. i., x, p. 19, says, "Le nam reprisente en fait la personne elle-mtme, c'est le rSsumS de tous les iUments qui composent son individu- aliti, il est, par excellence, la propriHi la plus certaine, la plus indiscutable, la plus Ugitime, la plus imprescriptible ; c''est pour cela, gtiHndSpendamment de tout traM international, chaque puissance devrait appliquer ses lois particuliires contre qui- conque a usurpe le nom commercial d''autrui, sans fair e aucune difference entre les nationaux et les Hr anger s^ At p. 23, he says : " Risumant done les principes touchant Vusurpation du nom commercial, nous croyons quHl faut dire, que d''aprh la hi morale et la justice inter nationale, Vusurpation du nom doit Hre punie, ainsi que tout attentat aux droits de la personne et toute violation de la bonne foi pmblique, sans faire aucune distinction entre le rignicole et VHranger, et sans subordonner V admissibility de Vaction a ^existence de traitis internationaux et au principe de riciprociti Ugale." § 168. Law applicable to Commercial Matters Generally. I. The primary distinction is here again between obligations on contract and obligations in tort. II. There is no uniformity in legislation or practice between the various countries. 1. The lex loci contractus is the standard most often relied upon in France, England, and Italy. As we have seen. Art. 58 of the Codice di Commercio gives it a legal basis in Italy, even for the determination of the status. However, Art. 58 i& tempered somewhat by the final clause (see infra\ The Portuguese Commercial Code (Art. 4) provides that com- mercial transactions are governed : — {a) by the lex loci contractus in regard to the substance and effect of contracts, unless something to the contrary is agreed upon by the parties ; (j)) by the law of the place of performance in regard to the manner of execution ; (c) by the place where the transaction is concluded, as to external formalities, unless the law expressly provides otherwise. 2. The national law must not be too strongly accentuated in commercial matters. Art. 58 of the Italian Code makes the lex patrice presumptive where both parties belong to the same country, for this article refers directly to Art. 9, Disposizioni, by saying : — 454 INTERNATIONAL CIVIL AND COMMERCIAL LAW " reserving, however, the exception mentioned in Art. 9 of the PreUminary Dispositions of the Civil Code, in regard to those persons who are subject to their own national law." Exclusive of this rule, there should be most convincing grounds before the lex patricz be applied in commercial matters. 3. The law of the place of performance is frequently applied to determine commercial contractual obligations. III. A contractual designation of the authoritative system of law is permissible, and is frequently made use of in practice. 1. There are really no formal rules of conflict to be cited for this proposition ; not even Art. 58 of the Italian Code expressly reserves the final clause of Art. 9, Disposizioni, by which the so- called autonomy of the parties is respected. However, the propo- sition refers generally to all questions not included in jtcs cogens, or coercive law. It has indeed been said that Art. 58 contains a positive legal provision, unalterable by contract, and that therefore Art. 9, Disposizioni, could never apply to commercial contracts except as provided in the case of two parties of the same nationality. This is untenable (Diena, " Trattato," i, pp. 75 et seq.). There is no sufficient ground for the legislature to specially exclude the right of autonomy in commercial matters. The sostanza of commercial obligations must be kept free to depend upon it, while essential requisites must be determined by the lex loci contractus (see § 162, sup7'a\ 2. Generally speaking, jus and forum must here also be kept separate ; it will follow then that a contractual fixing of the forum will not of itself be equivalent to a voluntary submission to the corresponding system of law. 3. Both the forum and the authoritative system of commercial law are often fixed by contract. (a) by a final clause submitting to a particular system of commercial law, exclusive of exchange usages. (Jj) by the acceptance of conditions often set up by banking houses, that the usages of the bourse at a particular place shall be appli- cable to all transactions. Thus, some Swiss banking institutions request their customers to sign the following formula : — " Nous declarons Hire domicile a la Banque . . . a Bdle et nous soumettre encas de contestation a la jurisprudence des tribunaux du canton de Bdle-ville." COMMERCIAL LAW PROPER 455 () Denmark, Norway and Sweden, § 84-86 ; (c) Hungary, §§95-9?; {d) Switzerland, Code of Obligations, Arts. 822-824; (e) Russia (1903), §§ 82-83. As we are to discuss these provisions in their proper relation, no further mention need be made of them here. III. Tke English Bills of Exchange Act 0/1882 contains express rules of conflict. This precedent is exceptional in English statutory practice. The provisions are to be found in Art. 72. Dicey adopts part of the article verbatim in his work (Rule 160) and uses also Arts. 57, 83, and 89 (Rules 161, 162, 163; see also Rules 164-166). Art. 72 reads as follows : — " Where a bill drawn in one country is negotiated, accepted or payable in another, the rights, duties and liabilities of the parties thereto are determined as follows : — 1. The validity of a bill as regards requisites in form is determined by the law of the place of issue, and the validity, as regards requisites in form, of the supervening contracts, such as accept- ance or indorsement, or acceptance supra protest, is determined by the law of the place where such contract was made. Provided that : — {a) Where a bill is issued out of the United Kingdom it is not invalid by reason only that it is not stamped in accordance with the law of the place of issue. {S) Where a bill issued out of the United Kingdom, conforms, as regards requisites in form, to the law of the United Kingdom, it may, for the purpose of enforcing payment thereof, be treated as valid as between all persons who negotiate, hold, or become parties to it in the United Kingdom. 2. Subject to the provisions of this Act, the interpretation of the drawing, indorsement, acceptance or acceptance supra protest of a bill, is determined by the law of the place where such con- tract is made. Provided that where an inland bill is indorsed in 482 INTERNATIONAL CIVIL AND COMMERCIAL LAW a foreign country the indorsement shall as regards the payer be interpreted according to the law of the United Kingdom. 3. The duties of the holder with respect to the presentment for acceptance or payment and the necessity for or sufficiency of a protest or notice of dishonor, or otherwise, are determined by the law of the place where the act is done or the bill is dishonored. 4. Where a bill is drawn out of, but payable in, the United Kingdom and the sum payable is not expressed in the currency of the United Kingdom, the amount shall, in absence of some express stipulation, be calculated according to the rate of exchange for sight drafts at the place of payment on the day the bill is payable. 5. Where a bill is drawn in one country and is payable in another, the due date thereof is determined according to the law of the place where it is payable.'' IV. The rule again holds good that reference and re-reference are not permissible unless expressly sanctio7ied by statute. 1. Staub, in his commentary to the German Statute of Bills (2d ed., p. 214, ad Art. 84, § 2), says that German law becomes applicable if the lex patrice provides that the domiciliary law should govern. This view is incorrect (see supra, § 46). 2. But we have already noticed the express provisions of Art. 7, subs. I and 3, and Art. 27, Introductory Act (see supra, § 58. HI). § 183. Civil Law relating to Bills and Notes. H. O. Lehmann, Lehrbuch des deutschen Wechselrechts, pp. 117 et seq. Carl Wieland, Der Wechsel und seine civilrechtlichen Grundlagen (1901). I. The distinction made in internal private law between the Law of Bills proper and ordinary civil law relating to bills is of importance also in international matters. Where the right or claim does not arise out of the Law of Bills proper (or the law merchant), the ordinary rules of International Civil and Commercial Law will apply. The principle which is most often applied in Commercial Law will here also apply analo- gously, in the absence of other standards, viz. that the obligor remains subject to the law of his domicile, except in regard to capacity to act, which, under some systems, is subject to the lex patrice. LAW OF BILLS AND NOTES 483 Ordinary rules of Civil Law, as distinguished from the Law of Bills proper, will be found applicable to the following questions : — 1. Preliminary contracts in which a promise is made to accept a bill (see v. Bar, ii, p. 185). Such a contract is independent of the Law of Bills proper (Thol, " Wechselrecht" § 51). The obligor is here the party who afterward becomes the creditor of the obligee. 2. Whether a general civil liability exists, though there be a failure of one or more of the legal essentials of a bill (Art. 7, Ger. Stat, of Bills; Art. 725, Sw. Code of Oblig.). Thus, Art. 820 of the Swiss law declares that instruments signed with a cross instead of a name have no " force as bills." The German Supreme Court of Commerce (xxii, p. 304) has held that the mere drawing of a bill is not in itself the creation of an underlying relationship of debtor and creditor. The Swiss Federal Court holds that the drawer of a bill simply records the fact that he wishes to be liable out of the bill itself — nothing more. " Whether there has been a liability in civil law is to be determined solely by the underlying relationship between the parties at the time; an invalid bill comes into question only as a means of proof" {A.E., xiii, p. 233). 3. The question as to what general legal rights arise where those flowing from the instrument itself have been lost because of failure to obey certain formal rules (see Art. 83, Ger. Stat, of Bills ; Art. 813, Sw. Code ; France, Lyon-Caen and Renault, iv. No. 458). 4. The question as to the rights of an indorsee who has parted with the bill simply inprocura or for collection (Art. 735, Sw. Code). 5. The question as to what rights arise where a person recog- nizes an obligation under a bill in the form of an avowal, say before witnesses, e.g. by declaring that an acceptance, not valid legally, shall count as such (Ger. Sup. Ct. Comm., xxi, p. 163). 6. Questions of agency, e.g. as to the obligations of a person who, by his own signature, has made another liable upon the bill itself. 7. The question as to what rights arise from assignments of non-due and of protested bills, in contradistinction to indorsements. 8. What legal relations exist between the surety on a bill and the principal debtor and between the surety and possible co-sureties 484 INTERNATIONAL CIVIL AND COMMERCIAL LAW (Art. 809, Sw. Code; A. E., vii, p. 11); also as to whether the surety may compel indorsement of the bill to him after pay- ment. Where a guaranty for the payment of a bill or a succession of bills to be drawn in the future is made by separate instrument, most countries do not recognize an obligation within the Law of Bills proper. The law of France, however (Art. 142, Code de Com merce), gives effect to such a guaranty under the strict provisions of the Law of Bills. II. Statutes of countries in the French group do not differentiate civil rights and liabilities from those arisijig under the bill to the same extent as do the statutes of the German group. French law (^Code de Comm., Art. 115) establishes a connection between the obligation constituted by the bill and the fund in the hands of the drawee to cover it {provision). This fund may con- sist of goods sold to the drawee, or even of the credit which the drawee bank opens for its customer. In France the holder of a bill has, according to constant practice, a special right against this fund, which becomes important in the event of the bankruptcy of the drawee. This right goes with the bill upon indorsement. The doctrine of cover exists also in Scotland (Bills of Exchange Act, § 53) but not in England nor in countries of the German group. Thus cases of conflict may arise. Von Bar (ii, p. 183) is of the opinion that the fund or cover is transferred only in case the bill involves an assignment of it both by the law of the drawer and that of the drawee. This may be disputed. It would seem rather that the law of the place of drawing was applicable, unless the bill be drawn in a manner different than required at that place. It is difficult to understand why the doctrine of cover has not been finally done away with ; it involves a confusion of the Law of Bills proper with civil law. In reality, it cannot be construed either as a passing of ownership or the transfer of a claim {cession de cr^ance). III. Certain relationships of a civil nature are, nevertheless, regulated in statutes relating to bills. We refer to questions arising from the subscribing of bills by an unauthorized agent {falsus procurator) in the name of the sup- posed principal. In this case no liability arises from the bill itself (Art. 95, Ger. Stat, of Bills; Art. 821, Sw. Code). LAW OF BILLS AND NOTES 485 hi America and England The distinction drawn by the author between obligations under the bill, and other obligations is more important in countries of the Continent, than in America and England, for the reason that sum- mary procedure and execution are there given for obligations aris- ing from the Law of Bills proper {wechselrechtlicli). Summary procedure, or " summary diligence " as it is still called in Scotch jurisprudence, exists in Scotland, but has been abrogated in Eng- land (see Chalmers, Bills of Exchange Act, § 98 and note). The distinction has some importance, however, in determining, in a similar way, whether or not the instrument is recognized as nego- tiable by the law merchant so as to render proof of consideration unnecessary and to be free from equities (see Curran v. Witter, 68 Wis. 16; Bristol v. Warner, 19 Conn. 17; Deyo v. Thompson, 53 App. Div. (N.Y.) 12). § 184. Capacity to be obligated upon Bills and Notes. V. Bar, ii, 150. I. By legislation in some countries, the capacity to be obligated upon bills of exchange is dependent upon the personal law of the obligor. I. The lex patrice has been adopted by : — {a) Art. 12, Portuguese Code of Commerce; {b) the law of France. There is no express rule of conflict applying particularly to the Law of Bills. Arts. 113 and 1 1 4 of the Code of Commerce, which provide that the subscription to a bill by a married woman shall be taken merely as an evidence of indebted- ness and that of a minor shall be void, is not of this character. Surville et Arthuys, p. 560, lay down the rule thus : — " The capacity of a person who obligates himself by bill of exchange as drawer, drawee, indorser or surety is determined by his national law. We have framed this rule without distinc- tion as to whether the obligation is civil or commercial in nature. ... We recognize that the danger is very great in regard to bills where the circumstances make it difficult to know the ca- pacity of precedent obligors." The same opinion is supported by Weiss (iv, p. 423)- He relies upon Art. 3, Code Civil, and its appUcation to aliens (see § 58, I, 2, supra). He adds, however, that in practice the 486 INTERNATIONAL CIVIL AND COMMERCIAL LAW tendency is not to observe the personal law where a French- man's interests would be injured, provided he has not been guilty of negligence (see § 58, III, supra). Weiss is opposed to this practice on principle (iii, p. 149). 2. Such systems as determine the personal statute by the lav? of the domicile apply that law also to transactions by bill or note. II. Some systems of legislation make the status in regard to bills dependent upon territorial law. To this group belong : — 1. Germany (Art. 84, Stat, of Bills; Art. 73, Introd. Act). By reason of the provisions of Arts. 7 and 29, Introductory Act, it would have been unnecessary to define the capacity of aliens as to bills. Still, Art. 84, Stat, of Bills, provides : — " The capacity of an alien to undertake obligations by bill will be determined by the law of the state to which he himself belongs. But an alien who, by the law. of his own country, has not that capac- ity, will be bound by undertaking such obligations in this country, if by the laws of this country he has capacity so to do." Thus the personal law governs in the first instance, though an important exception in favor of German law is added immediately after. The minutes of the Leipzig Conference upon the Law of Bills (issued by Thol, Gottingen, 1866) show that the committee wished to observe the urgent demands of the business community in view of the fact that buyers frequently come to Germany from far distant countries, especially to the fairs. Reference was made also to the formula of Hugo Grotius, by which an alien undertaking an obligation in the inland by bill was considered as " subditus temporarius" and thus subjected to the local law. Under the German Statute of Bills and in the countries follow- ing that statute, it does not expressly appear whether an alien entering into an obligation by bill with another alien of the same or different country is bound by the territorial rule of Art. 84. A difference of opinion may exist upon the point, though to me it would seem unsound to make a distinction. Even though we might interpret a similar rule in International Civil Law in this manner (see § 59, II, 3, supra), the Law of Bills does not permit of such differentiation. 2. Switzerland (Art. 822, Code of Obligations). Differing somewhat from the German statute, this statute provides that its LAW OF BILLS AND NOTES 487 provisions shall be applicable to Swiss subjects abroad, as well as to aliens in the inland, in respect of their capacity to under- take obligations by bill. This, however, seems to have been modi- fied by Fed. Stat. N. & A., Art. 28, No. 2 (§ 7, III, 4, supra). Another peculiarity of the Swiss Law of Bills lies in the fact that although persons having capacity to obligate themselves by contract have capacity to obligate themselves by bill, still the special provisions as to procedure and execution in actions upon bills are applicable only to persons inscribed in the commercial register (Art. 720, Code of Oblig.). This is fundamentally illogi- cal and arbitrary, and tends to delude, especially foreign holders of bills. 3. Italy. The standard is different here from that followed in Civil Law, as Art. 58, Codice di Commercio, applies also to the Law of Bills. In other words, the lex loci contractus is applicable, and Art. 6, Disposizioni, is expressly excluded (see § 162, II, 4, supra.) Esperson {" Diritto cambiario internazionale" pp. 3, 4, 9; pub- lished 1870) holds that the general rule of Italy upon status should apply also in regard to bills. This he repeats in Journal de dr. i. (vii, p. 259) in the year 1880; he opposes the legislative policy of Art. 84 of the German statute in the following words, " It is con- trary to the principles of International Private Law by which we have seen that the character of incapacity impressed upon an in- dividual by the legislature of his country remains indehble and follows him to a foreign country in the same manner as does the capacity which this legislature recognizes." 4. England and America. The lex loci contractus, i.e. the ter- ritorial law, is applied to the capacity to become obligated on a bill, just as capacity generally is so determined (see § 58, IV, supra; Phillimore, iv, § 838, p. 686). An error which is very common among Continental jurists is to believe that it is the domiciliary law which controls in these Jurisdictions. III. It follows, then, that the question whether an alien in the inland or a native abroad has capacity to be obligated upon a bill, is to be answered variously according to the particular rule of conflict. I . Where the lex patrics governs, the question of minority or majority will be determined by it, and a foreign interdiction with its resulting disabihties will also be taken account of. 488 INTERNATIONAL CIVIL AND COMMERCIAL LAW 2. Not SO, however, where the capacity to be obligated upon a bill is determined by the lex loci contractus. 3. A foreign tradeswoman may obUgate herself by bill within the scope of her occupation, unless, of course, the territorial law wholly repudiates the distinction between tradeswomen and ordi- nary married women. IV. As a question of legislative policy, it seems clear that the two extremes {the lex patrice on the one hand and the territorial rule on the other') go too far, and that a neutral point shoidd be reached. 1. It is interesting to note that Art. 84 of the German statute was accepted only by a vote of 10 to 9 in the Conference (Minutes, ed. by Thol, p. 156). 2. Norsa proposed the following before the Institute of Inter- national Law {Annuaire, 1883-1885, vii, p. 81): — " Art. 2. The capacity to be obligated by bill of exchange or to order, as to those who are alien to the present law (viz. subjects of states who do not adopt the law), is determined by the law of the country to which they belong. Art. 3. Provided however that an alien incapable of obligating himself by bill of exchange or to order by the law of his country but capable of so doing by the present law, may be considered as validly obligated over against a bona fide contractor and his transferees, so far as concerns transactions by bill or note occurring in countries where this law is in force." However, this " sententia media " was not adopted by the Insti- tute at its meeting in Brussels, where a project for a uniform law was adopted. In its stead a provision was substituted following the rule of lex loci contractus {Ann., viii, p. 97) ; this was adopted also by the International Congress of Brussels in 1888 {Actes, pp. 530, 550), and the Association of International Law {Revue de dr. i., ix, p. 409). On the other hand, von Bar proposes the following sound solu- tion (ii, p. 155, note 17): — " Every one who can bind himself by any contract can do so by bill. It shall be immaterial whether or not a person had capacity to bind himself by bill, be that incapacity a result of a general inca- pacity to contract or riot, if, by the law of the place where the bill is issued, the debtor had this capacity, and the person who sues on the bill or his predecessor in title was acting in good faith when he acquired the bill. Good faith is presumed." LAW OF BILLS AND NOTES 489 As its author points out, the principle of regarding nothing but the " bona fides " of the person who acquires the bill guarantees a wider security and accords with the rational demands of commerce. We favor, however, the application of the /ex loci actus in regard to capacity of aliens to be obligated on commercial paper at markets, fairs, and exchanges. So formal an act as the drawing of a bill, should contain, in itself, the assurance of capacity at mar- kets and fairs. As we have seen, the conditions at markets and fairs influenced the discussion of the German statute. Bluntschli referred to the fact that foreign buyers were accustomed to pay transitory visits to Germany, making it essential that they be bound with the strictness which the Law of Bills demands {"Allge- ■meine Deutsche Wechselordnung" p. 128). As a rule, the loci actus is the place where the actual fact of drawing (or indorsing) occurred; capacity cannot be altered by choosing a different venue for the act, as the provisions upon capacity are independent of the will of the parties. The requisite that a place of payment must be given in the bill (Art. 4, No. 8, Ger. Stat.; Art. 722, No. 8, Sw.) has no significance in respect of capacity (Ger. Sup. Ct. Comm., xxiii, p. 388). In America and England The rules applicable generally to capacity to act govern also in respect of negotiable paper. The EngUsh statute (§ 22) provides that " capacity to incur liability as a party to a bill is coextensive with capacity to contract." Although not intended as a rule of conflict, this rule serves to reflect the attitude of English law that every person who has general capacity to act is capable of incur- ring Uability by bill. Wharton (§110) also points out that while the law of the domicile will prevail, no artificial restrictions upon such capacity will be recognized extra-territorially. In other words, though the lex domicilii is admitted to be the standard theo- retically, yet the courts have considered so many restrictions by foreign legislation to be " artificial," that, as the author states, the standard is practically the lex loci contractus. Questions of conflict in regard to capacity to be obligated by bill or note are considerably limited by the fact that acceptor and indorser warrant the capacity of all prior parties (§§ 112, 115, Uni- form American Negotiable Instruments Law). 490 INTERNATIONAL CIVIL AND COMMERCIAL LAW § 185. Autonomy of the Parties in the Law of Bills and Notes. I. Contract provisions by which the parties subjected themselves to a foreign system of law formerly played an important roU in the Law of Bills. Compare : Bender, " Grundsdtze des deutschen Wechselrechts mit steter Beriicksichtigiing der Gesetzgebimg und Wissenschaft des Auslandes" (1828), ii, pp. 321-324. II. The so-called autonomy of the parties is to-day permitted in only a few directions. 1. Reference may be made to : — (a) the payment clause (Ger. Stat, of Bills, Art. 37; Sw. Code, Art. 756) ; {b) the protest clause (Ger. Stat., Art. 42 ; and Sw. Code, Art. 763) ; (f) the presentment clause (Ger. Stat., Arts. 19, 25, 31, and 43). 2. A subjection to the application of a foreign system of law is now possible by mentioning a particular place of payment in the instrument. The use of a foreign language or foreign formula in drawing a bill or check does not warrant the deduction that the foreign sys- tem of law is applicable. Thus where a bank in Berlin issues a bill or check according to the English formula, it does not follow that the bank has subjected itself to English law, even though the in- strument was intended to be used as a means of payment in Eng- land (Ger. Imp. Ct, vol. 44, p. 155). § 186. General Principles applicable to the Substantive Import of Obligations upon Bills and Notes. V. Bar, ii, p. 163. Grlinhut, Wechselrecht, ii, pp. 571-578. I. The substantive import of obligations by bill, independent of the question of capacity, is determined by the law existing at the place where they were entered into. I . This proposition will usually direct us to the domiciliary law of the obligor because, as a rule, the two places will be identical. The reason for applying the lex loci actus here is because we are dealing with a strictly unilateral transaction, and further because the formality in which it is clothed completely hides the basis of LAW OF BILLS AND NOTES 491 the debt — it is the instrument itself which forms the "causa" of the transaction. The legal act as such thus rests upon certain formal requisites, and the rules relating to it are imperative in character. Instruments of this nature executed by natives or aliens at home and abroad are legally drawn only when the requisites prescribed by the law prevailing at the place of execution have been observed. 2. It is often said that we have here a question of form. But form has a special significance in the Law of Bills and the rules applicable thereto in International Civil Law do not apply, or else with modification. Accordingly, the law of the place of payment will not control. Griinhut (ii, p. 572) appropriately points out that commercial paper, as such, owes its entire existence to the law of the place at which it is executed. 3. The lex loci contractus will determine whether a paper writ- ing shall be regarded as a bill, a mere check, or a simple acknowl- edgment of indebtedness. We will consider an exception to this principle under II. For example, the German and Swiss statutes recognize neither bills payable to bearer, nor promissory notes in which the maker is designated as payee, even though a particular place of payment is mentioned. II. The statutes of the German group (Art. 85) specify two exceptions. I. Writings or declarations {e.g. indorsements, etc.), placed upon a bill in a foreign country after its issue, will be deemed valid obligations if in accordance with the demands of the internal law, though not legally binding by the foreign law of the place where they were entered into. This applies also to bills originally issued in the foreign state. This exception becomes practical in many ways. Thus the sacred expression or label "bill," or an equivalent, is absolutely essential by German, Scandinavian, and Swiss law, but not by the law of England, America, France, or Belgium ; furthermore, bills payable to bearer are permitted by the law of England, America, and (with a minimum limitation) Japan. The law of France requires that the original bill and all indorsements must be stated to be for value received. A bill issued in France, England, or America without the words 492 INTERNATIONAL CIVIL AND COMMERCIAL LAW " lettre de change," " bill of exchange," or the " value " or " order " clause, although invalid by the internal laws of Germany, Austria, or Switzerland, must nevertheless be recognized in these countries, if a new transaction has been superimposed by indorsement or otherwise upon the original instrument. So also as to bills or notes payable to bearer. ?. According to Art. 85 of the German Statute (par. 3) an obligation entered into by bill in a foreign state between two natives is valid if the internal law (of Germany) would so consider it, had it taken place in the inland. Two inlanders therefore have the choice of following either their lex patricB or the lex loci actus. See also Lyon-Caen and Renault, iv. No. 636. But this privilege is not accorded where only one of the parties is an inlander, even though the bill finally gets into the hands of another inlander. Von Bar proposes for future legislation the following provi- sion : — " It suffices for the formal validity of any declaration of obliga- tion contained in a bill, tliat the law of the place where the declara- tion is delivered should be observed." But even if we hold fast to the rule of the German group, the internal state should also accord to the subjects of other nations the right to draw bills according to their own national law. III. The place which the instrument itself states to be the place of execution will be taken as such. This rule has been much opposed and, indeed, it is open to question. Some hold that the actual place of execution is alone authoritative (Staub, p. 216). But the practice is otherwise. A bill drawn in Germany, though dated from London, is considered valid if in accordance with the EngHsh, though not with the Ger- man law. The venue is taken to be, not the expression of a fact, but a declaration of the will (Ger. Imp. Ct, xxxii, p. 117). Griin- hut (ii, p. 572, note 14) favors the rule only in behalf of bona fide third purchasers. Still, this is hardly a practical distinction. If we accept the rule as stated above, all parties may rely upon the validity of the act as founded either upon the law of the place of execution or the place given in the instrument as such. IV. By taking over the assets and liabilities of a business, the obligations by bill of the former debtor pass to his successor. LAW OF BILLS AND NOTES 493 1. Such a proceeding constitutes a kind of universal succession as to obligations, and as the heir becomes liable, so also does the new owner under the Law of Bills by virtue of the signature of his predecessor (A. E., xix, p. 262). 2. The question whether the former debtor is thereby released will not be discussed here. In America and England The rule of the German group, stated at II, is that adopted also by Art. 72, i,b,oi the EngUsh Bills of Exchange Act so far as the foreign country in which the bill has been negotiated is Eng- land (see supra, § 182, III). The English rule seems also to be the principle adopted by the American cases. Thus, where a draft drawn in Illinois, accepted for accommodation in New York and payable in New York, was discounted in Illinois, it was held that the liability of the acceptor to a bona fide holder for value, before maturity, was governed by the law of Illinois (Tilden v. Blair, 21 Wall. 241 ; Bank v. Sutton Mfg. Co., 6 U.S. App. 312). The rule as stated at III is also followed in these Jurisdictions under the principle of the law of evidence as to parol proof (Towne v. Rice, 122 Mass. 67). But the rule does not apply to accommodation paper and paper with notice. In these cases the real place of the transaction may be shown (Fant v. Miller, 17 Grat. 47 ; Overton v. Bolton, 9 Heisk. 762). § 187. The Principal Obligations by Bill or Note considered separately. I. The prevailing theory is that the law of the place at which each obligation is undertaken will regulate it. I. We have now to discuss what system of law is applicable to determine the scope and effect of the various obligations under- taken by bill or note, and to the conditions and requisites neces- sary for the creation of the obligations. It was held in early times that all obligations under a bill were subject to a single system of law, viz. that of the place of payment. There was supposed to be an urgent necessity that only one system should be applicable to all successive regress actions, no matter where brought (Seuf- fert, ii, No. 252). It may be said with some force (v. Bar, ii, p. 169) that the different obligors on a bill are in a manner tied 494 INTERNATIONAL CIVIL AND COMMERCIAL LAW up together, and that the later obligor would not take the bill and hand it on with his guaranty on it, unless he had the right of recourse against his predecessors. This expectation may be deceived, if this right of recourse is excluded by the law of a prior obligor, while he must be liable by the law of his obliga- tion. Brocher Q' Cour de dr. i. priv^," ii, p. 314) also favors this view. But it is no longer the prevailing rule ; in fact, it is danger- ous to refer each obligation to the law of the acceptor or drawee, for the reason that at the time of drawing the bill, the obligation of the acceptor has not yet been fixed. The law of the acceptor should not be considered as that of the general place of perform- ance. The obligation of the acceptor is not the central one ; each transaction upon the bill must be kept separate. 2. To this effect also is Art. II of the project advanced by the Institute {Annuaire, viii, p. 121): — " II. Les effets de la validite de la lettre de change et du billet a ordre, des endossements, de l' acceptation, de Paval, se jugent d'apr'es les lois de chacun des pays oh ces differents actes sont fails, sans prejudice des regies relatives a la capacite des signataires des litres" 3. Accordingly, it should not be taken as surprising that obli- gations arising out of the same bill are subjected to wholly different systems of law. A person who enters into an obHgation by bill is presumed to take into consideration only the law of the place where he executes it. II. The priftciple as stated accords a simple method of determin- ing the legal position of persons obligated on bills and notes. 1. The drawer of a bill payable to his own order is obUgated in like form even though he indorses it in another country, as the principal liability is in his capacity as drawer (v. Bar, ii, p. 163, note 35). 2. As to the liability of the drawer generally, the question for determination will be as to when and in how far a right of recourse against him exists. According to the main principle, he cannot be taken as desiring to bind himself to any greater extent, or on any other conditions, than provided for by his own law. If the bill be not paid, the recourse sum will be the value of the sum mentioned in the bill at time of maturity, at the domicile or place of business of the drawer (Ger. Imp. Ct., xliv, p. 156). LAW OF BILLS AND NOTES 495 3. The place of executing the indorsement will apply to the liability of the indorser, i.e. : — (a) to the transfer of rights involved therein ; (i5) to liability under the strict Law of Bills and especially the conditions under which there will be a right of recourse. This becomes a practical question where a distinction is made between protested and other overdue bills. The German statute (Art. 16; followed in Servia and Switzerland) provides that a right of recourse for the payment of a protested bill exists only against those whose signatures were placed upon the bill prior to protest, while in the case of other overdue bills, the right of recourse exists also against indorsers after the period within which protest could be made. In the case of blank indorsements, the law of the place of execution, i.e. usually the domiciliary law of the indorser, governs (Ger. Imp. Ct, xxiv, p. iiS). Conflicts are apt to arise for the reason that the laws relating X6 indorsements vary. Each indorsement is a new bill formally and physically connected with another one, the original bill, and based upon it. The principal function of the indorsement is the transfer of rights ; to this is added a secondary one, in that the indorser undertakes the obligation of the drawer. These two phases should not be separated. Therefore, as a matter of law, the only legitimate holder of a bill is one who can prove an unin- terrupted chain of indorsements between the payee and himself. This is as true of a note as of a bill. It is expressly so provided in some of the statutes (Ger., Art. 36; Sw., Art. 755). Where there is a gap, there will be no right under the bill as against the drawer and indorsers prior to the gap. Neither will the holder have any recourse against indorsers subsequent thereto. It is not to be denied that the examination of this question (and also whether the bill was properly indorsed by the payee) will not be wholly easy where the bill has been negotiated from places such as China, Alexandria, or Damascus. The English Law of Bills, however, follows a different rule. The Bills of Exchange Act(§ 55, No. 2, c) provides that an indorser may not deny, as against his immediate or a later indorsee, that the bill was valid and legal at the time of his indorsement and 496 INTERNATIONAL CIVIL AND COMMERCIAL LAW that he then had a good legal title thereto. It may thus be con- cluded that according to English law, where recourse is had against an indorser, he may not rely upon a gap in the chain. It is claimed by Phillimore (iv, § 850) that an indorsement is legal if so re- garded at the place where the paper was issued, even though not permissible by the law of the country where the indorsement occurred. 4. Neither is the liability of the acceptor greater than provided by his own law. It is a question whether he may rely on the drawer's law if that enacts a lesser liability. The liability of the acceptor does not in itself depend upon the validity of the drawer's obligation, as the other parties did not enter upon the bill with the condition that the drawer had validly obligated himself. Swiss law (Arts. 801-802) is different from the German, as a presumption of genuineness is made. Suppose a German in Berlin draws a bill for M. 3000, which, after delivery, is altered to M. 30,000, and as such accepted by a Switzer in Zurich; the acceptor and indorsers would, pursuant to Art. 802, be liable for the larger sum. Accord- ing to the decision of the German Supreme Court of Commerce (xxiii, p. 339) such a paper would not be recognized as a bill even for the smaller sum. It is true that M. 3000 is included in M. 30,000, but the alteration has really substituted a new obligation, the original one vanishing. The Imperial Court (xliii, p. 86) formerly held that a bill could not be drawn on several persons. This was not followed by the court in joint senate however. It is now held that several per- sons may be called upon jointly for payment (though not alter- nately or successively) ; the drawer or indorser undertakes that the payee or indorser shall have the drawees jointly obligated (Zf.y^m. Z., 1900, p. 441 ; Imp. Ct., xlvi, 46, p. 132). The acceptor will be liable under an acceptance not written upon the bill itself, if the law of the place of the acceptance recognizes such a liability. This is not the case in Germany (Art. 21) or Switzei'land, though in America, written contracts, including acceptances, can be validly made by telegraph (Meili, " Telegraphenrecht" 2d ed., p. 88). Italian jurists have also favored this view, e.g. Serafini in his "// telegrafo in rel. alia giurisprudenza civile e commerciale " (p. 42). Dicey says (pp. 604- 60s):- LAW OF BILLS AND NOTES 497 " By the law of Illinois a verbal acceptance is valid. A bill drawn in London on a town in Illinois is verbally accepted there. The acceptance is valid." In America and England fhe case referred to by Dicey is Scudder v. Bank, 91 U.S. 406. The authority of this case would seem to have been somewhat impugned by the later case of Hall v. Cordell, 142 U.S. ii6, in which an Illinois merchant agreed orally in Missouri to accept and pay at his place of business in Illinois, all drafts drawn on him for goods to be shipped to him by the drawer from Missouri. By the laws of Missouri, this agreement was required to be in writing ; by the laws of Illinois, it was not. The court decided the case upon the principles applicable to contracts, saying that " nothing in the case shows that the parties had in view, in respect to the execution of the contract, any other law than the law of the place of per- formance." But the two cases can be distinguished in that, in the latter, the promise was intended to operate in the future upon bills not yet drawn, and, therefore, could not in any event be considered an obligation by acceptance, attaching to the bill itself. By the Uniform American Negotiable Instruments Law(§ 223, N.Y. text) "an unconditional promise in writing to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value." At common law, an oral promise was sufficient (Dull v. Bricker, y6 Pa. St. 225 ; Jarvis v. Wilson, 46 Conn. 91). As authority for the proposition stated by the author that a telegraphic authority is sufficient, see Johnson v. Clark, 39 N.Y. 216; Bank v. Garretsoii, 51 Fed. Rep. 167; Bank v. Lynch, 52 Md. 270. It has been dis- tinctly held in New York that the promise to accept is governed by the law of the state where it is made, notwithstanding it is to be performed elsewhere (Scott v. Pilkington, 15 Abb. Pr. 280). Conformable to the Continental rule, each party who puts his name to negotiable paper incurs a distinct and several liability, and whether as principal or surety, he is governed by the law to which his particular engagement is subject (Wharton's "Conflict of Laws," § 449, and cases there cited). This rule is embodied also in the English Bills of Exchange Act, Art. 72, 2, except that where an 498 INTERNATIONAL CIVIL AND COMMERCIAL LAW inland bill is indorsed in a foreign country the indorsement is inter- preted as regards the payer by English law. § 188. Agency in the Law of Bills and Notes. I. The normal relationship of principal and agent is governed by the prijiciples stated under Civil Law. A legally authorized agent who signs a bill as such for his principal does not become personally liable, as modem systems recognize the principle of direct representation. Accordingly, where a bill is subscribed by a true agent in the name of his prin- cipal, it is the latter who is obligated, and it is not necessary that the drawer, indorser, acceptor, or surety should himself sign the instrument. II. The liability of an unauthorized agent {falsus procurator) is determined by the law of the place where the particular transaction took place. Where juristic persons are the imauthorized agents, the laiu of their seat is applicable. 1. Where the unauthorized agent adds his name to that of the supposed principal, his liability is direct and pursuant to the Law of Bills. The liability is thus greater than that provided by some laws in the case of unauthorized agency, as it is sometimes restricted to the actual damage sustained or negative interest in the contract (compare Ger. Civ. Code, § 179, with Stat, of Bills, Art. 95). 2. Where the unauthorized agent signs simply the name of the principal, he is also liable directly for the amount of the bill, but not in the manner prescribed by the Law of Bills (see § 183, supra). As a proper signature is lacking here, one of the requisites of the statute falls away. 3. The basis for liability under Civil Law is by no means regarded everywhere as a tort, and therefore we cannot state the rule theoretically in the formula of lex delicti commissi. In America and England Where a duly authorized agent adds to his signature words indicating that he signs for or on behalf of a principal, he will not be liable on the instrument, but the mere addition of words describ- ing him as agent or as filling a representative character, without disclosing the principal, does not exempt him from such liability LAW OF BILLS AND NOTES 499 (Uniform American Negotiable Instruments Law, § 39; English Bills of Exchange Act, § 26). The law as to unauthorized agency, as stated by the author at II, 2, is followed, also in these Jurisdictions (Miller v. Reynolds, 92 Hun 400). His warrant of authority as implied by English law does not pass with the transfer of the instrument expressly assigned (id.). § 189. Suretyship in the Law of Bills and Notes. I. Here again, the law of the place of entering into the obliga- tion, usually the domicile of the surety, will govern. 1. Where the authoritative law contains no provision as to suretyship by bill {Aval), it does not follow that the act is invalid or that it has no effect pursuant to the Law of Bills. Reference must be had to universal usage and to the will of the parties. By using the form of the bill, they must have intended an effect under the Law of Bills {A. E., vii, p. 12). 2. Suretyship by bill must, as a rule, be regarded as an inde- pendent obligation within the Law of Bills. (a) There must exist a drawer of the bill in order to undertake suretyship (Get. Imp. Ct., x, p. i). {b) It is not necessary that there be a legally binding obligation of the principal debtor unless the authoritative system of law, viz. that of the place of entering into the guaranty, so requires. Reference may be had to the following statutes : — Art. 275, Italian Codice di com. : "The surety becomes respon- sible for the obligations of the person for whom he guaranteed and is obligated in the manner of the Law of Bills, even though the obli- gation for which he stands security is not legally binding." Art. 47, Hungarian Stat, of Bills, provides that the surety by bill remains liable, even though it is proven that the principal debtor lacked capacity to be obligated by bill. Art. 497, Japanese Code of Commerce : "Whoever places his name upon a bill, a copy of a bill, or elongation thereof, is subject to the same liability as that of a principal debtor, even though the obli- gation be invaUd." II. A surety who signs a bill payable at a particular place vol- untarily subjects himself to the particular system of law in force at the place of payment. 500 INTERNATIONAL CIVIL AND COMiMERCIAL LAW NOTE Suretyship by bill is unimportant practically. For many reasons, indorse- ment has taken its place. See also § m, supra. § 190. " Domiciled " Bills. I. By "domiciling" a bill, the application of the law of the bill is effected. 1. By the laws of the German group, a "domiciled" bill or note is one in which a place of payment is mentioned differing from the domicile of the drawee of the bill or maker of the note (see Ger. Stat, Art. 24; Sw., Art. 743). The term "payable at the office of Brewery X" is sufficient as a designation of the "domi- cile" (Ger. Imp. Ct, i, p. 17). 2. When a bill is thus domiciled the following conclusions are drawn by customary law : — (a) that the maker of a note or the acceptor of a bill have declared that they will pay only at the place mentioned ; {V) that a forum has been voluntarily designated in addition to the normal one {A. E., v, p. 18 ; vii, p. 11) ; {c) that a submission to the law of the designated " domicile " has taken place. The German Imp. Ct. (vi, p. 25) holds that the " domicile " has thus been fixed as the seat of the obligation, and that it is by the law of that place alone that the obligation is to be determined. The theory of Savigny still shows its influ- ence in this decision, whereas the Swiss Federal Court (v, p. 2 1) arrives at the same conclusion by taking the designation of a " domicile " as a voluntary submission to the law of that place. II. The principle as stated applies to the obligations of all the obligors upon the bill, including also that of a surety. III. The statutes frequently state that for notes, the place of mak- ing a note, and for bills, the address given as that of the drawer shall be taken presumptively as the place of payment. These are to be distinguished from the "domicile" of the note or bill. I. Such provisions are to be found in the German statute at Art. 4, No. 8, and in the Swiss at Art. 826. They neither affect the forum nor the system of law applicable. Promissory notes usually mention no place of payment, and therefore the legislator has inserted the above provision so as to make them valid without it (Imp. Ct, viii, p. 71 ; A. E., xvi, p. 819). LAW OF BILLS AND NOTES SOI In the same way, bills drawn under Art. 6 of the German Statute aiid Art. 724 of the Swiss Code, which provide that a bill can be drawn by the drawer against himself only in case a place of pay- ment different from that of drawing is mentioned, cannot be inter- preted as " domiciled " bills. Such instruments are at base really notes (Ger. Sup. Ct. Comm., iii, p. 8). 2. The same reasoning applies in the case of ordinary bills, as frequently no particular place of payment is mentioned (Ger. Sup. Ct. Comm., iii, p. 8). IV. As to the duty of protest and the effect of not protesting, see Art. 43, German Statute, and Art. 746, Swiss Code. hi America and England The result of the rule as laid down by statute in countries of the German group is reached also in America by the principles generally applicable to the interpretation of contracts. We are here dealing with the interpretation of the obligation of parties to a bill, not, as at Supplement to § 187, supra, of the valid existerwe of the obligation as such. By the general rules applicable to con- tracts, where the place of performance of a contract differs from that of the obligor's domicile, or of the solemnization of the in- strument, the law of the place of performance prevails upon the terms of performance. Thus the law settling the obligations of the acceptor of a bill is determined by the place -where the bill is made payable (Cox v. Bank, 100 U.S. 704; Everett v. Vendryes, 19 N.Y. 436; Freese v. Brownell, 35 N.J. L. 285; Sylvester v. Crohan, 138 N.Y. 494). The rule in England is different by reason of the terms of Art. 72, 2, of the statute. It refers all questions of " interpreta- tion " to the lex loci contractus, except in the case of inland bills. Dicey (p. 607) suggests that the terms of the statute have resulted from a misinterpretation of language used by Story in his " Com- mentary on the Law of Bills of Exchange" (§§ 1 5 3-154)- § 191. Purely Formal Provisions relating to Bills and Notes. I. At least the provisions of the lex loci actus must be observed in regard to formabttes. I. Art. 86 of the German statute (Art. 824, Swiss Code) pro- vides that " the form of transactions for upholding or putting in 502 INTERNATIONAL CIVIL AND COMMERCIAL LAW force rights created by a bill, which may be carried out abroad," are determined by the foreign law. Where the authoritative system of law, as developed by our prior discussion, requires that an act be undertaken at a foreign place " for upholding or putting in force rights created by a bill," e.g. a protest, that act will be governed, both as to its form and as to the locality and time at which it is to be made, by the law of the place where it is to occur. The act of protest will occur at the domicile of the principal obligor {i.e. at the place of payment), as the protest refers to the non-fulfilment of his (the acceptor's or maker's) obligation. 2. The tenor of statutes of the German type makes the rule imperative, so that here the maxim of " locus regit actum " is not permissive, as we have seen it to be in other divisions of the law (see § SS, supra). II. The formalities m.ust be strictly observed. I. Formalities as to the protest refer either to : — {a) the external form, (J)') the contents, or (r) the protest period. Regarding a, the principal differences between the statutes are that in some countries (Germany, France, Switzerland) the protest has retained its old solemn character, stating in detail the present- ment of the bill for acceptance and payment and the answer of the presentee. In Germany, protest must be made by notary or court officer under his seal (Arts. 87 and 88); in Switzerland, by notary or other person authorized by the government (Art. 814); a seal is not prescribed. In Belgium a short form prevails, and protest can be made through the post-office. Regarding b, the statutes prescribe what a protest is to contain (French Code de comm., Art. 174; Ital. Codice di comm., Art. 305 ; Ger., Art. 86 ; Sw., Art. 815). The form varies, though the statutes do not state that a protest not in the exact style shall be void. It is therefore necessary to examine whether the defect is essential according to the particular law applicable (German Sup. Ct Comm., i, p. 144). Thus the question may arise whether the presentment must be expressly mentioned. In France it must be (Art. 174, Code de comm.); in the German group it need not (Art. 88, Stat. of Bills). Again, it is disputed whether the name of the presentee LAW OF BILLS AND NOTES 503 must appear. The German Supreme Court of Commerce has held that it must (xiv, p. 161). Where the party obligated for payment is a juristic person, it seems that the name of the natural person to whom the bill was actually presented need not appear (Thol, 4th ed., § 89). As a matter of legislation it would certainly seem advisable to simplify the unwieldy forms still in vogue. G. Cohn favored this policy most energetically in the Thirtieth Annual Report of the Berlin Legal Society. Regarding c, the law of the place from which the bill was emitted may determine the days of grace and the period for protest. This it may do even for bills already drawn, provided they are to fall due in the future. But no change can be made that would operate to alter the date of maturity. In practice it will not be difificult to distinguish those cases where the purpose is not merely to smooth away formal difficulties, but really to give the acceptor time for payment. This question gave rise to considerable discussion on the occasion of the enactment by France, during the war of 1870-71, of letters and decrees of grace applicable to commercial securities and commercial paper, by which a longer period for payment, or at least for protest, was accorded to debtors (see § 194, infra). 2. Notice of protest must be given if demanded by the law of the person against whom recourse is sought. 3. Payment must be made within the business hours and in the coinage prescribed by the laws of the place of payment. Of course the creditor by bill will not be bound by material changes in the value of the coinage made after the time that his rights have accrued. In America and England The law of the place of payment has been held applicable to the demand for payment (Masson v. Lake, 4 How. U.S. 262); whether days of grace are to be allowed (Roquette v. Overmann, 1875, L. R. 10 Q. B. 213, 535; Pomeroy v. Ainsworth, 22 Barb. 118); to the nature of the protest (Ballingalls v. Gloster, 3 East 381 ; Aymar ?/. Sheldon, 12 Wend. 439); to the notice of dishonor (Bank V. Brown, 1903, 83 N.Y. Supp. 1037; Brown v. Jones, 125 Ind. 375); to the formalities of the protest (Bank v. Gray, 2 Hill 227; Ray V. Porter, 42 Ala. 327)- S04 INTERNATIONAL CIVIL AND COMMERCIAL LAW Notice to prior parties, however, by an indorser whose liabilities are fixed is governed by the law governing the contract between them (Roquette v. Overmann, supra ; Bank v. Green, 33 la. 140). § 192. Conditions of Recourse. V. Salpius, " ijber die Anwendung auslandischen Rechtes auf den Wechselregress,''^ Z.fiir Handelsrecht, N'.F., iv, pp. 1-66. V. Bar, ii, pp. 165-170. I. Protest, whenever prescribed, is a solemnity which constitutes an absolute and material condition of recourse. Whether it be neces- sary is therefore determined by the law of the place where the obliga- tion relied upon is undertaken. 1. It has been claimed (von Salpius, cited suprci) that protest is a mere formal solemnity, and therefore it is only essential when so prescribed by the law of the place of payment. 2. But this view is not correct and is not the prevailing opinion. Griinhut (ii, p. 582) properly states that when a person draws or indorses a bill under the jurisdiction of a system of law which prescribes presentment for acceptance generally, or within a given period, the obhgation under the bill becomes subject to the condi- tion, that if the holder neglects to present the bill for acceptance or payment, or does not establish the fact of non-acceptance within a certain period by protest, the obligation falls. These are notformal provisions ; the protest is an absolute and material condition of re- course ; therefore, the law which determines the necessity of protest and that which governs the instrument of protest itself are not the same. This is the German doctrine. The Commercial Code of Brazil provides in Art. 424 : — " Litigation in matters of bills and notes relating to presentment, acceptance, payment, protest, and notice shall be decided according to the laws and commercial usages of exchange prevailing in the countries in which the particular acts were undertaken." The German Supreme Court of Commerce (xix, p. 203) has held that this provision cannot be interpreted to mean that the effects of tieglecting to protest should be determined by the law of the place where such protest should have been made. The same opinion is expressed by Rossel, "Manuel de droit fM^ral," p. 881. It is the law of the place where the obligation relied upon was entered into which governs. LAW OF BILLS AND NOTES S05 3. From the substantive necessity of protest we must distinguish everything that refers to the form, the place, and the time of making the protest ; these are governed by the law of the place of payment. II. Notice. Notice of dishonor may affect all parties to the paper. The necessity of giving notice is governed by the law controlling the obligation of the person against whom recourse is claimed. III. The results reached under the prevailing theory do not completely satisfy the demands of cosmic intercourse. The Insti- tute of International Law has proposed the following (iv) : — " Les obligations du porteur au point de vue de la presentation pour r acceptation et pour le payement sonf fixees par la loi du pays oil a ete emis la lettre de change ou le billet a ordre." The purpose of this provision is in accordance with the idea that every obligation upon the bill, including the conditions of recourse, should be subject to one common system of law, viz. that of the place of issuing the bill or note. § 193. Vis major as an Excuse for Non-protest. I. The presentment and protest of a bill is often spoken of as a legal duty of the holder ; it is, however, in truth, a requisite or con- dition under which his predecessors have undertaken an indepen- dent guaranty for payment by the drawee. This obligation may naturally not be extended indefinitely and, therefore, presentment and protest in due time is one of the conditions. The question is this : whether in international matters a plea should be allowed for a belated protest on account of vis major, consisting of an act of God, the passing of a moratory law, or a quarantine. The doctrines of the various states differ. {a) The French system does not consider the objective fact of delay alone, but inquires as to whether the delay has been caused by the subjective conduct of the holder of the bill (Pardessus, " Droit commercial," ii. No. 4269). ip) The English and American system is the same ; the holder does not lose his rights if he can prove that, because of illness, a war, or other hindrance for which he was not responsible, he was prevented from fulfilling his duty. See the American Uniform Negotiable Instruments Act (N.Y. text, § 267). 506 INTERNATIONAL CIVIL AND COMMERCIAL LAW {c) The uniform Statute of Bills of Denmark, Sweden and Nor- way, in force since 1881, is also to the same effect. {(P) The practice of Austria and of Italy is in accord. (e) The German system. The Statute of Bills does not expressly decide the matter, and a controversy has therefore arisen upon the point. Bluntschli favors the plea of vis major in his work on the statute (p. 83), but adds that it must exist absolutely and in fact. On the other hand, the Supreme Court of Commerce (i, p. 288) has held that it is not an excuse. (/) The Swiss Code of Obligations (Art. 8 1 3) expressly provides that vis major shall not excuse. No inquiry may be made as to the guilt or innocence of a party where he has in fact neglected to observe a formality or a prescribed period. 2. The Institute of International Law proposes {Annuaire, viii, p. lis) that vis major shall be an excuse, if the cause were a general one, such as an inundation, a war, etc. As there is no uniform provision, a person may be liable to a subsequent party, by way of recourse, according to the law govern- ing his obUgation, and yet not be able to have recourse against his predecessors. This is a hardship but it cannot well be avoided. § 194. Extra-territorial Significance of the French Moratory Laws. V. Bar, ii, pp. 174-178. Goldschmidt's Z., xvii, pp. 294-309 ; xviii, pp. 625-643. Norsa, '■'■ Sul conflitto internazionale dellc leggi cambiarie'''' (Milan, lSyi),J?evue de dr. i., viii, p. 470. Munzinger and Niggeler, Rechtsgutachten betreffend die durch die prorogierenden Gesetze und Dekrete der franzosischen Behdrden hervorgerufenen Regress- fragen (Berne, 1871). Fick, Uber internationales Wechselrecht in Beziehung aiif Fristbestitntmingen, insbesondere die franzosischen Wechsehtwratoriuinsgesetze und Dekrete (1872). Jaques, Die durch die franzosischen Moratorien-VerfugJingen hervorgerufenen Regressfragen (Vienna, 1872). I. If we accept the view that the protest of a bill or note is a con- dition sine qua non to recourse, the laws passed in France in iSyo-ji could not prevent the loss of the right of recourse. I. During the Franco-German war the French government ex- tended the period of payment of commercial paper then outstanding by one month, and later successively by several months. In one LAW OF BILLS AND NOTES S°7 instance the law speaks of a postponement of the date of maturity, at another, of the period of protest, and finally protests are entirely prohibited. The question then arose as to whether these laws had validity also as against persons not subjected to French law, espe- cially whether an action for recourse was maintainable against drawers and indorsers domiciled without France, where the bills were accepted by Frenchmen, presented at maturity but not protested. 2. The German Supreme Court of Commerce (i, p. 288) held with great determination that these laws were not binding in Ger- many and pointed to the strict conditions of the guaranty. Similar decisions were made in other countries (Fick, p. 112). II. A different result is reached if the protest is considered a matter of form. To this effect were the decisions of the Austrian courts. If these laws had referred only to days of grace, the law of the place at which the paper was presentable for payment would surely have been held to govern, but as it was, they practically affected to change the obligation of the obligors. § 195. Law of Markets and Fairs in Connection with Bills and Notes. Special laws applicable to markets and fairs (see § 122, supra) must be consulted in connection with bills issued in the course of business of a market or fair. From the historical point of view, it may be noted that, as fairs formerly constituted the radiating points of trade and finance, they facilitated to a large extent the transac- tion of business by bills and notes. I. Bilk issued at markets and fairs are subject to the laws governing the particular market, even in regard to questions of capacity. See Art. 84, German Stat. ; Art. 822, Swiss Code. II. Further influences upon the Law of Bills. 1. A bill made payable at a market or fair sufficiently denotes the time of payment (Ger. Stat., Art. 4 ; Swiss Code, Art. 722). 2. In the case of an ordinary bill, the holder is entitled to present it at once for acceptance, whereas in the case of a bill payable at a market or fair, he may present and protest it only at So8 INTERNATIONAL CIVIL AND COMMERCIAL LAW the time provided by the laws of the place of the market or fair (Ger. Stat., Art. i8; Sw. Code, Art. 736). 3. The date of maturity is also determined by the laws of the place of the market or fair; in the absence of any such designa- tion, it will be the day before the legal closing of the market or fair (Ger. Stat., Art. 35 ; Sw. Code, Art. 754). III. The laws of a bourse or exchange may be of importance in regard to bills, if the parties have agreed that presentment for pay- ment or acceptance, protest, etc., shall occur there. See Art. 91, German Stat. ; Art. 818, Swiss Code. § 196. Procedure and Execution. I. The right to a strict procedure is determined by the lex fori. 1. In some jurisdictions, privileges of procedure are accorded actions upon obligations of the nature of a bill. The question whether this strictness shall be applied is closely connected with the obligation itself. Yet the requisites for its application are gen- erally so wrapped up with the system of procedure in a given state that these requisites must be applied also to obligations by bill entered into abroad. Even though quick process upon a bill would not be permitted in the foreign country, it should never- theless be granted if the rules of the lex fori permit of it. 2. In Germany, special process is stated by the terms of the law to apply to claims arising out of commercial paper within the meaning of the Statute of Bills (§ 202, Stat, on Civ. Proc). The Imperial Court, however (ix, p. 437), has extended this to foreign commercial paper, provided it be recognized as such by the laws of the place where issued. II. The right of arrest is also gover-ned by the lex fori. 1. The right to arrest for obligations by bill or note no longer exists by the laws of France, Germany, or Switzerland. Upon principle, it may be stated that the nature of execution is deter- mined by the lex fori. It follows, then, that if the law of the place where the debtor is sued permits a body execution, it will issue, even though his obligation was entered into at a place where it is not permitted. 2. The right to strict process is usually made dependent upon enrolment in the Commercial Register. LAW OF BILLS AND NOTES 509 § 197. Questions of Proof. V. Bar, ii, p. 183. I. Proof of a lack of capacity must be made by the party alleging it. Theoretically, the existence of capacity forms the basis of all actions upon bills and notes. As a matter of practice, however, capacity is presumed, and the defendant has the burden of proving a lack of capacity. II. The question as to who has the burden of proving the foreign law cannot be determined by a uniform principle, but is dependent upon the circumstances of each case. 1. An action brought upon a bill drawn or indorsed and pro- tested in a foreign country is to be granted strict procedure, if the same conditions existed there as are necessary for such process in the inland (Seuffert, ix, No. 2). The defendant has the burden of proving that by the foreign law such process is not permissible. 2. Where an action is maintainable on a bill or note by the foreign but not by the local law, the plaintiff must prove the exist- ence of the foreign law. III. Whether proof must be given that can be instantly verified (^'liquid" proofs and whether set-offs are formally permissible in actions on notes and bills are questions of procedure governed by the lex fori. § 198. Limitations of Actions on Bills and Notes. I. Pursuant to what has been said under International Civil Law (§ 56, supra), the law governing each obligation upon a bill will determine when the right of action thereon expires by the statute of limitations. II. Here, too, the English and American doctrine is contrary to that of the Continent of Europe in that the lex fori governs. I. The outlawry of actions on bills (as upon other causes of action) is not considered a mere matter of procedure on the Continent of Europe, but as a substantive ground for the obUga- tion to cease. It follows from this that it is governed by the laws of the place to which the legal relationship as a whole is subject (Ger. Imp. Ct, vi, p. 25 ; ix, p. 225). This result is not altered by the fact that a system of law which SIO INTERNATIONAL CIVIL AND COMMERCIAL LAW regards it as an institute of procedure may be applicable to the obligation as a whole. The judge cannot be influenced by this circumstance to apply the internal law to a case in which it is not properly applicable by international rules (Imp. Ct, ii., p. 13). In the case just cited, the German court applied the six-year rule of the State of New York to a suit brought upon a promissory note, although the law of that State regards the statute of Hmitations as affecting the remedy only. Compare § 56, I, supra. 2. In the case of " domiciled " bills, the statute of limitations at the place of "domicile" is applicable. 3. Where French law comes into question, a peculiarity must be noted. The Code de Commerce (Art. 189) provides a uniform limitation of five years for obligations by bill ; but this changes to the normal rule of thirty years (Code civil, Art. 2262) provided that : — {a) there has been " une reconnaissance par acte separe"; it is essential that recognition of the obligation occur by an act in writing ; payment of interest or part payment will not suffice ; these merely interrupt the running of the five-year statute ; {S) there has been " une condamnation ",• here the obligation has been merged in the judgment of the court. A person obligated by bill under French law can rely upon the statute of limitations in a foreign country only by taking an oath as provided in Art. 189 of the Code de Commerce that he no longer owes anything thereon. III. Even tJiough actions under the bill or note have become out- lawed by limitation, the parties may have other rights following the usual rules. This applies, for instance, to the relationship between a surety upon the bill {Avalist) and the principal debtor. Actions for enrichment maintainable in the case of dishonored bills against drawer or acceptor are grounded upon the usual rules in private law, though affected also by rules of the strict Law of Bills. These actions become outlawed by the usual rules of Inter- national Civil Law, the statute beginning to run, not from the date of maturity, but from the time of dishonor. § 199. Checks. I. The contract with the bank, prior to the drawing of checks against it, is subject to the general rules of the Law of Obligations, LAW OF BILLS AND NOTES 511 1. The check contract, in contradistinction to the check itself, is not one merely of mandate, but a contract sui generis (Cohn, in Endemann's " Handbtich des Handehrecht" iii, p. 1148). Cohn de- fines this contract as that by which one of the parties undertakes to honor orders of payment drawn by the other party in accordance with certain regulations, either to a certain or an indefinite amount. An important element is the right which the contract gives to divide up the sums according to convenience. 2. The customers drawing the checks are subject, in their deal- ings with the bank, to the law which governs it ; the contract there- fore also becomes subject to that law (with the exception of the question of capacity). This law will determine how far the cus- tomer is liable for the acts of his servants and whether the bank has fulfilled its contractual duty in the examination and control of signatures to the checks (see Thaller, Annales de dr. commercial, xiii, p. 39). II. The check as a formal instrument is governed by the laws of the place of issue (i.e. usually the domiciliary law of the drawer). There are a number of divergences in the laws of the different states relative to the nature and requisites of a check. Thus in England and America it must be drawn upon a bank or banker. In Italy and Portugal it must be drawn upon a bank or merchant. In France, Belgium, Switzerland, and Spain there is no limitation as to the drawee. Again, the laws of Scandinavia and Switzerland require that the word " check " appear upon the face of the paper. In Austria and Argentine it must be drawn upon a blank form. In determining the legal nature of the instrument, the law of the place of issue will govern. It has been held in some jurisdic- tions that the dating of the note will be authoritative. Thus an instrument dated from London, though written in Switzerland, will be formally valid as a check, though the word " check " does not appear upon its face {Revue der schweiz. Gerichtspraxis, xviii. No. 65). III. The right of recourse against the drawer of a check is gov- erned by the law of the place of issue {usually the domiciliary law of the drawer). I. This is an important rule as some countries regard the check simply as an order, and not as an instrument in the nature of a bill (Ger. Imp. Ct, xliv, p. 158). According to this doctrine, the 512 INTERNATIONAL CIVIL AND COMMERCIAL LAW holder of a dishonored check cannot proceed upon the instrument itself against his predecessors in title or the drawer. It is pre- cisely this right of recourse which is the point of distinction in German law between a bill and an order. Accordingly, the holder must rely upon the obligation for which the check was given; usually his rights will be only against his immediate predecessor. 2. The foreign law of the place of payment is not the standard. It is important to note here (as in the matter of the drawee's obliga- tion upon a bill) that the substance of the drawer's liability does not represent actual performance of the instrument, but is simply payment of the recourse sum. IV. The ex-contractual effects resulting from forged or fraudu- lent checks are determined by the lex delicti commissi. 1. The forging or altering of a check is to be considered from the standpoint of the place where the wrongful act physically occurred, and not of the place where the deception was finally accomplished. 2. The lex delicti commissi is also authoritative in determining whether a third party shall be held liable for ex-contractual damages, e.g. a bank for neglecting proper surveillance over the acts of an employee. 3. The question whether a bank which has been deceived by a forged or fraudulent check has been guilty of negligence on its part and therefore shall be compelled to bear the loss itself is like- wise governed by the lex loci, which will, as a rule, be the law of its own seat (see Holdheim's " Monatschrift fUr Handelsr. u. Bank- wesen" viii, 1899, pp. 85 et seq.). NOTES 1. The principal Continental author upon checks is G. Cohn (Zurich). His works and other publications on the same topic are cited in my book on " Compara- tive Jurisprudence" (p. 222). Cohn favors a uniform international law of checks. 2. Although modern legislation has frequently dealt with the subject of checks, no statute (with the single exception of the Argentine Commercial Code, Art. 810) has impressed a special duty of diligence or liability upon bank customers in regard to forged or fraudulent checks. See my opinion upon the laws relating to forged checks in Holdheim's Mojiaischrift fur Handelsr. u. Bankwesen, vii, 1898, p. 202. MARITIME LAW LIST OF SPECIAL AUTHORITIES A. Works dealing with International Private Maritime Law V. Bar, ii, pp. 185-230; Lehrbuch, pp. 138-144. V. Kaltenborn, Grundsatze des praktischen europaischen Surechis, besonders im Privatverkehre, i and ii (1851). R. Wagner, Handbuch des Seerechts, i, pp. 128-143. E. Boyens, Das deutsche Seerecht. Commentary by Dr. William Lewis on the Foreign Law, i (1897), ii (1901) ; vol. i, p. 16, on the Local Application of Maritime Laws. A. de Courcy, Questions de droit maritime, ist series (1877), 2d series (1879), 3d series (1885), 4th series (1888). Desjardins, Traiti de droit cojiimercial maritime, i-viii (1878-89). E. E. Wendt, Papers on Maritime Legislation with a Translation of the German Mercantile Laws relating to Maritime Commerce (3d ed., i£ B. In Regard to International Public Maritime Law A. Le Moine, Precis de droit maritime international et de diplomatie (i8 F. Perels, Handbuch des allgemeinen offentlichen Seerechts im, Deutschen Reiche (1884). Id; Das inter nationale offentliche Seerecht der Gegenwart (1882). Stork, in v. HoltzendoriF's Handbuch des Volkerrechts, ii, pp. 483 et seq. Carlos Testa, Le droit public international maritime. Principes gintraux, regies pratiques. Traduction annotee et augmentke de doctiments touchant la contre- bande de gtcerre, la neutralisation des mers et des fleuves et la decision de la conftrence africaine (^iSSj) en matiire de droit maritime par Ad. Boiitiron (1886). Pradier-Fode'r^, Traiti de droit international public europkn et amiricain, v, Nos. 2262 et seq., Nos. 2471 et seq. C. In Regard to the History of Maritime Law Desjardins, Introduction historique ct P etude du droit commercial maritime (1890). E. Cauchy, Le droit maritime et i7iter national considers dans ses origines et dans ses rapports avec les progrh de la civilisation (2 vols., 1862). L. B. Hautefeuille, Histoire des origines, des progris et des variations du droit maritime international (2d ed., Paris, 1869). D. Periodical Revue international du droit maritime. Published by Autran (since 1885). 2L S'3 514 INTERNATIONAL CIVIL AND COMMERCIAL LAW E. Collections Pardessus, Collection des his maritime (6 vols., 1828-45). F. de Cussy, Phases et causes celibres du droit maritime des nations (2 vols., 1856). § 200. Introductory Remarks. V. Bar, ii, pp. 185 et seq. De Courcy, i, p. 71 ; ii, p. 127. I. Maritime Law (" disciplina navalis ") was formerly regarded as an intematiotially uniform system. 1. The recognition of the fact that the doctrines upon this topic differ in the various countries is of comparatively modern origin. 2. Of course the conditions of sea voyages have changed. The same ship frequently takes in cargo at widely separated ports and travels between the most distant and dissimilar countries. II. Strenuous efforts have been made for the establishment of a universal marititne law atnong the civilized states. The movement should be actively supported. 1. The York and Antwerp Rules. Report of the Fifth Annual Conference of the Association (1877), pp. 80 et seq. Lewis, in Goldschmidt's Z., xxiv; N.F., ix, pp. 491-524. Voigt, Die neiien Unternehmuitgen zimi Zweck der Ausgleichung der Verschieden- heiten der in den Seestaaten geltenden Havarie grosse- und Seefrackt-Rechte (1882). E. van Peboorgh, '■^ Des rigles d''York et d^Anvers,'" Journal de dr. i., xiii, pp. 424- 431. De Courcy, 2d series, pp. 265-288. Report of the Fourteenth Conference of the Association of International Law. The Revised York and Antwerp Rules (i-xviii, at pp. 46 and 279). 2. The Institute de droit international adopted the following resolution at Turin {Annuaire, vi, p. 91): — "The subjects upon which a uniform system of law is especially desirable are : bills of exchange and other negotiable instruments, contracts of transportation, and the principal divisions of maritime law J' The Institute agreed upon a uniform law of marine insurance, "lot uniforme sur les assurances maritime." It also worked out a project for the organization of an international tribunal of maritime prizes {Annuaire, ii, p. 153 ; see also pp. 11 3-1 30). MARITIME LAW S^S 3. A Comity maritime international has attempted to unify the maritime laws of the civilized states {Journal de dr. i., xxvi, p. 202 ; xxviii, p. 65 ; Boyens, in Z. fUr das ges. Handelsr., vol.48, N.F., 23, p. 172 ; vol. 51, N. F., vol. 36, p. 128). It is of interest to note that EngUsh jurists and maritime bodies also took part in these efforts. [The Belgian government has proposed to the other Maritime Powers that diplomatic conferences be held to consider the draft treaties on Collision and Salvage adopted by the Comiti at Ham- burg in 1902. The British government has unfortunately refused to be officially represented at these conferences but subsequent to this refusal (June i8th, 1904) it was stated in parliament on behalf of the government that it would " take steps to inform itself of the proceedings " and would " consider in a most friendly spirit any proposals made by it which should be thought to be beneficial." — Trans. \ 4. It may be said incidentally that by reason of the conclusion of the International Convention upon Railroad Transportation, the Swiss Commercial and Industrial Association was led to suggest that the central railroad bureau should prepare the whole subject of transportation on inland waters and on the sea for " discussion and conference." The association denies at the outset that Swit- zerland would not be the proper state to begin, because not suffi- ciently interested, and holds that "just because it has no direct interest should it deem itself called upon to take the initiative" (see my work on the " International Spirit of Modern Jurispru- dence"). So far as I know, the central bureau has not yet taken up the matter. III. An tinsatisfactory result is reached by submitting all cases of conflict in Maritime Law to the lex fori. I. The tendency in Maritime Law to refer so many problems simply to the lex fori may have originated from the former view that this branch of law constitutes a universally uniform system and therefore it is unnecessary to arrive at rules of conflict. But now an earnest opposition has arisen against the preponderance of the lex fori. At the International Congress of Antwerp, in 1885, the following resolution was unanimously adopted : — " En cas de conflits des lots maritimes il ne faut pas appliquer une regie generate, mats distinguer suivant les cas." 5l6 INTERNATIONAL CIVIL AND COMMERCIAL LAW 2. Wagner's book on Maritime Law favors the lex fori and states that there exists a kind of presumption in its favor. See § 52, I, supra, for the contrary view. 3. It is interesting to note that the Imperial Court of Germany decided a case arising from the collision of two English ships in Russian waters according to German law (xxix, p. 90). 4. There are no proper practical grounds in favor of the lex fori. IV. There are no express statutory rules of conflict upon Mari- time Law. Reference may, however, be made to certain provisions of the German Commercial Code. " § 515. If the master fails, when abroad, to obey the rules pre- vailing there, especially the police, tax and customs laws, he must replace the loss resulting therefrom." See also §§ 483, 522, 901-905 (Limitations of Actions). § 201. The lex patrioB of Maritime Law (/a loi du pavilion). I. The lex patrice may be regarded as the tnain principle appli- cable to property in sea boats. 1. Ships acquire a nationality through the observance of for- malities on the part of their owners. They may then fly the national flag. The requisites are, as a rule : — {a) entry in a particular register ; (b) ownership of the ship wholly or in part by citizens or residents of the particular state. In some states {e.g. England, Germany) a ship registry is main- tained similar to that for real estate, in which is entered : — {a) all facts which form a basis for the ship's right to the flag ; {p) all facts which are necessary to fix the identity of the ship and which affect property relationships in connection with it ; (c) the home port; {d) all changes made in regard to these facts. 2. Ships declared seaworthy at the home port are to be recog- nized as such abroad, unless the police regulations of the foreign port are expressly made applicable by special provision. In this way, therefore, we speak of the nationality of the ship. The term " floating building " is also used. In fact ships are subjected to much the same formal rules as are applied to real estate; "they MARITIME LAW 5I7 are like immovables of commerce" (Goldschmidt, " Handbuch des Handelsr." 2d ed., ii, § 60). 3. The project of the Institute of International Law contains the fdlowing provisions {Ann., vii, p. 124): — " La lot du pavilion du navire doit servir a determiner : — 1. Quelles sont les formalites de publicite a remplir pour la trans- mission de la propriete. 2. Quels sont les creanciers du proprietaire du bdtiment qui ont ou n'ont pas le droit de suite, dans le cas ou il est aliene. 3. Si le navire est susceptible ou non detre hypotheque. 4. Quelles sont les formalites a remplir pour la publicite des hypo- theques maritimes. 5 . Quelles sont les creances garanties par un privilege maritime. 6. Quels sont les ranges de privileges sur le navire. 7. Quelles sont les formalites a remplir par le capitaine qui em- prunte a la grosse en cours de voyage. ..." 4. The Congress of Antwerp adopted the following sound resolution : — " La loi du pavilion regit en tous pays les differends relatifs au natnre et a la navigation, qui se produisent entre les coproprietaires, entre les proprietaires et le capitaine, entre les proprietaires ou le capitaine et les gens de I'equipage." II. But the exclusive application of the lex patrice is not de- sirable. 1. This is particularly true in regard to rights of pledge. The law of France follows the theory that a pledge of a ship validly constituted in a foreign country according to the laws in force there, is not necessarily valid in France, when the ship happens to be in a French port {se& Journal de dr. i., i, p. 31 ; ix, p. 246). This represents the other extreme ; it was probably to counteract this principle, that the Congress of Brussels and the project of the Institute favor the lex patrice exclusively. Von Bar (ii, p. 198) opposes the conclusions of the Institute. 2. The law of the flag properly governs in regard to : — (a) the separate rights of joint owners of a ship ; this is sound ; the owners themselves may be of different nationalities and have dif- ferent domiciles ; (f)) the right to effect a change of the flag ; the property rights of the separate owners may be affected by this proceeding. 5l8 INTERNATIONAL CIVIL AND COMMERCIAL LAW 3. The law of the flag should also determine the rights and duties of the captain and crew as against the owner (v. Bar, ii, p. 226). 4. The conclusions of the Congress of Antwerp would seem to have gone too far in making the law of the flag always control- ling as to the liability of the owner. The lex loci actus would seem applicable in the case of torts or quasi-X.o'^Xs, through acts of captain and crew {e.g. injury done to another ship), for the same reasons as prevail in the case of torts done upon land. § 202. Maritime Mortgages. V. Bar, ii, pp. 195 et seq. I. The law of the flag is primarily applicable to the creation of ship mortgages. It is immaterial whether or not the forms of pledge of the home state differ from those of the place where the ship hap- pens to be, provided the pledge be entered in the ship register of the home state. 1. The foreign law must recognize vested rights. The mere fact that the ship has entered the jurisdiction of a foreign state does not affect them. Ships of the sea usually return again to their home port after a period, be it greater or smaller, and have in a certain sense (as the Ger. Imp. Ct., xlv, p. 278, says) their seat there. A mortgage which has been created according to this law should be recognized abroad, even though created in a different manner in the foreign state. A mortgage created upon a ship in Holland, according to the law of Holland, was recognized in Germany, notwithstanding that the ship could have been distrained and sold according to German law. 2. However, entry in the public register of the home state is required. The law of Holland demands the branding of a mark of pledge upon the boat. As to the German law, see §§ 1 260-1 271, Civil Code. n. The rule is subject to a number of exceptions. I. Such pledges as are permitted by the law of the place where the ship happens to be, will be valid, provided : — {a) they are entered in the ship's papers, and (i5) the formalities of the loi dti pavilion are observed within a certain (reasonable) period. MARITIME LAW S19 Ships are immovables only by a fiction ; in truth, they are of a very movable nature. If the lex patrim were exclusively control- ling, commerce would be endangered. The interests of the state of sojourn and that of the ordinary creditors would be unnecessa- rily thwarted. 2. But a mortgage will not be considered valid if made in a manner wholly strange to the law of the place of sojourn, e.g. orally or by an informal writing (Seuffert's Archives, xxxi, No. 195 ; Imp. Ct., xlv, p. 279). 3. The same is true where the loi du pavilion forbids a mortgage to be made outside the home port unless in accordance with certain formalities. In America and England Mortgages over British ships are regulated by 17 and 18 Vict. c- 104, §§ 76-80, and the Merchant Shipping Act of 1894. A registered owner who wishes to mortgage his ship at any place out of the country of the port of registry may apply to the registrar, who shall give him a certificate of mortgage. Every mortgage made under authority of this certificate is indorsed upon it by a registrar or British consular officer, and the mortgages rank according to the date of indorsation. These provisions amply protect mortgagees of British ships in foreign ports. Bottomry bonds, i.e. hypothecations of the ship or of the cargo, are ruled by the law of the flag (Lloyd v. Guilbert, 1865, L. R. i Q. B. 115 ; The Gaetano, 1882, L. R. 7 P. D. 137). These cases hold that the law of the flag determines the authority of the master to bind his owners by a pledge of the ship. In the former case it was said that " reason and convenience " were in favor of this rule " rather than that it should vary according to the law of the port in which the ship may happen for the time to be." A contrary doctrine was laid down in Louisiana. Several Eng- lish ships, mortgaged in England, without transfer of possession (which is valid in England), were attached in New Orleans by creditors of the mortgagor. It was held that the Louisiana law, by which no title as against creditors is given without transfer of possession, was applicable (Malpica v. McKown, i La. R. 248). As between the several States of the Union, a ship at sea is presumed to belong to the State in which it is registered; and 520 INTERNATIONAL CIVIL AND COMMERCIAL LAW hence, where an insolvent in Massachusetts assigned a vessel at sea, registered in that State, by an assignment valid in that State, but void in New York, the assignment was held good as against a New York creditor, who attached the vessel after her arrival in New York (Crapo v. Kelly, i6 Wal. 6io; accord, Koster v. Merritt, 32 Conn. 246; Moore v. Willett, 35 Barb. 663). § 203. Affreightment and Average. V. Bar, ii, p. 2ig. Heck, Das RecM der grossen Havarei. I. Contracts of affreightment are governed by the usual rules of the Laiv of Obligations. The law of the country in the business language of which the documents signed by the parties are expressed, will usually be found appUcable. It will generally coincide with the law of the seat of the company or firm with which the contract of affreight- ment is made. It is unsound to take, as an exclusive guide, the law of the place of destination (Imp. Ct, ix, p. 51), especially as this is often fixed later by telegram sent after the ship to some port of call. II. Provisions as to average loss are part of the law of carriage. 1. Here, too, the law of the point of destination has been ap- plied frequently by maritime usage. In the Middle Ages, this was connected with the fact that goods were sent to factories subject to the same law as the consignor. Later it was again adopted, because the " dispacheurs" or adjusters of the loss, were more familiar with their own law, which was that of the port of desti- nation. Another view applies the law of the flag, and this is favored by Lyon-Caen. The Congress of Antwerp proposed the following rule : — " Le reglemetit des avaries se fait d'apres la lot du port, oii le chargement se delivre." 2. According to this, the law which governs would be of the port at which the cargo is unloaded. This need not be the port of destination at all. We are thus leaving the question to chance. It is therefore best not to make a concrete rule at all. The inten- tion of the parties, express or implied, should govern, and only MARITIME LAW 52 1 when there are no reasons for applying the law of the flag, or another system, should this standard be adopted. III. The legal powers of the captain are determined {upon prin- ciple^ by the national law of the ozvner. 1. The Congress of Antwerp refers this question absolutely to the national law of the owner : — " Les pouvoirs du capitaine pour pourvoir aux besoins du navire, le vendre, f hypothequer, contracter un etnprunt a la grosse, sont determines par la loi du pavilion, sauf pour lui a se conformer quant a la forme de ces actes, soit a cette loi, soit a celle du lieu du contrat." In favor of this solution it may be said that the flag in itself serves to refer third parties to the national law. 2. The rule will not apply if the third parties knew or should have known the limitations upon the powers of the captain. In America and England As stated by the author, contracts of affreightment are subject to the general rules applicable to contracts. The lex loci contractus is therefore frequently taken as the standard, being the system of law "with a view to which " the parties contracted. In the case of Liverpool S. Co. v. Phenix Ins. Co., 129 U.S. 397, 458, the court said, "The fact that the goods are to be delivered at Liverpool, and the freight and primage, therefore, payable there in sterling currency, does not make the contract an English contract, or refer to the English law the question of the liability of the carrier for the negligence of the master and crew in the course of the voy- age." Accord, O'Reagan v. Cunard S. Co., 160 Mass. 356; The Carib Prince, 63 Fed. Rep. 266. As an indication that the lan- guage in which the contract is written will be taken as an element in determining the intention of the parties, see The Industrie, 1894, P. (C. A.) 58. In support of the doctrine as stated under II, supra, see National Board v. Melchers, 45 Fed. Rep. 643; Phillimore, iv, p. 594. In support of the rule as stated at III, supra, see The Gaetano, 1882, L. R. 7 P. D. 137; Lloyd v. Guilbert, L. R. i Q. B. 115 ; The August, 1891, P. (C. A.) 328. 522 INTERNATIONAL CIVIL AND COMMERCIAL LAW § 204. Collisions in Harbors and on the High Seas. V. Bar, ii, pp. 208 et seq. Buzzati, Durto di navi in mare (Padua, 1889). R. Prien, Der Zusammenstoss von Schiffen aus den Gesichtspunkten der Schiffs- bewegung, des Strassenrechts und der Haftpflicht aus Schiffskollisionen nack den Gesetzgebungen des Erdballs. Eine nautisch-juristische Studie (1896). Further authorities are cited in this work at p. 2. De Paepe, " De la competence a Pegard des etrangers dans les affaires maritimes et de la loi applicable a Pabordage," Revue de dr. i., 2 Series, iii, p. 507. I. Claims arising out of collisions {Abordage, Zusammenstoss) in harbors or in territorial waters are determined according to the law of the place where the dam.age was done. This is the doctrine which prevails in most countries as we are dealing here with torts or quasi-torts. 1. Territorial waters are those which can be controlled by the coast state by means of its shore batteries. This is reckoned usually as three marine miles from low water tide {fa laisse de la basse maree). The Institute proposed extending the limit to six miles, but diplomatic negotiations upon the point have not yet reached any practical result. 2. The rule as stated was expressed by the Antwerp Congress of 1885 in the following terms (Actes, p. 145, Question 60): — " Z'abordage dans les ports, fleuves et autres eaux interieures est regie par la loi du lieu oil il se produit." Certain systems of law have set up presumptions as to the fault of one ship or another, e.g. where the one is in motion and the other at anchor, or where the one is a steamer and the other a saihng vessel. These are to be treated as part of the substantive law of the case and are also subject to the lex loci actus (German Sup. Ct. Comm., xxiv, p. 83). II. Where the collision occurs on the high seas, the ordinary rules upon torts are not applicable, as there is no sovereignty over the place where the act was done. 1. To apply the lex fori seems arbitrary, yet it is in fact often applied, as for instance under American practice (Moore notes to Dicey, p. 670). 2. Lyon-Caen {fournal, ix, p. 600) declares the common law of all nations authoritative here ; the effect of this is that reparation will be granted only by reason of the culpa of some person. MARITIME LAW 523 3. It has also been said that the national law of both ships should be combined. Then, if they are of different nationality, no greater obligation can be imposed upon the defendant than his law imposes, and the claimant will receive no higher reparation than his national law would grant. This idea is expressed by the Ant- werp Congress of 1885 as follows (Actes, p. 145): — " Cabordage en pleine mer entre deux navires de meme na- tionalite est regie par la loi nationale. Si les navires soni de nation- alite differente, chacun est oblige dans la limite de la loi de son pavilion et ne pent recevoir plus que cette loi lui attribue." The Institute also favored this rule. It has been said that it is not always easy to discover the authoritative law, as, for example, where a collision occurs by night or in a fog, and the damaging vessel moves off quickly. For this reason the matter of making claim and commencing action has been stated to be satisfied if the laws as to periods and formaUties, either of the damaging or of the damaged vessel, or of the nearest port of safety have been observed. It has even been said {Journal, ix, p. 604), that in view of the difficulty of establishing nationality in some cases, any period for making claim which is in accordance with natural justice will suffice. But this is too indefinite. The Congress of Antwerp set up the following rule as to the periods and formalities for making claim and beginning action (Actes, p. 146): — " Si Vabordage a eu lieu en mer le capitaine conserve ces droits en reclamant dans les formes et delais presents par la loi de son pa- vilion, par celle du navire abordeur, ou par celle du premier port de reldche." III. Claims for salvage and assistance are subject to different systems according to each case. 1. If the salvage has occurred in territorial waters, the lex loci actus will apply] because the obligation is gr?/«j?-contractual. See § 127, supra. 2. If it occurs on the high seas, this solution will fail. The solution advanced to take its place is the national law of the salvor, a standard approved by the Antwerp Congress : — " L'assistence en mer est remuneree d^apres la loi de P assistant." 524 INTERNATIONAL CIVIL AND COMMERCIAL LAW In support of this rule it is urged that a ship in distress is legally and physically dependent upon its rescuer, and in effect becomes an adjunct to the latter. In America and England " In case of collision on the high seas between ships of different nationalities, the general maritime law, as understood and admin- istered in the courts of the country in which the litigation is prose- cuted, governs (The Belgenland, 114 U.S. 355, 369; In re State Steamship Co., 60 Fed. Rep. 1018). This rule is subject to two qualifications: (i) Persons in charge of either ship would not be open to blame for following sailing directions and rules of naviga- tion prescribed by their own government (The Scotia, 14 Wall. 170, 184). (2) If the maritime law, as administered by the nations to which the ships respectively belong, is the same in respect of a particular matter, it will, if duly proved, be followed in respect of such matter, though it differ from the maritime law as understood in the country of the Htigation (The Scotland, 105 U.S. 24, 31)." — Moore's notes to Dicey, p. 670. The English decisions also favor the /ex fori (The Leon, 1881, 6P. D. 148); and even in the case of collisions in foreign territorial waters, the law of England will not give damages unless both the foreign and English law concur in holding damages to be due (Abbott on Shipping, 12th ed., p. 579; The Halley, 1868, L. R., C. P. 193). But the American cases do not go to this extreme; they apply the /ex /oci de/icti (Geoghegan v. Atlas S.S. Co., 22 N. Y. Supp. 749 ; Robinson v. Nav. Co., 73 Fed. 883). NOTES The laws relating to collisions vary greatly. 1 . According to tiie Roman law, the principles of the lex Aquilia were applied : a collision resulting from negligence made the guilty party liable for damage ; others were considered accidental. 2. In the Middle Ages views diverged : — {a) In the Consolato del tnare of Barcelona, the Roman law was retained. {V) According to the laws of the countries washed by the ocean, the North Sea and the Baltic (law of Oldron), it was provided that the loss resulting from an innocent collision should fell equally upon the car- goes of both vessels. This rule was applied also where the cause of the collision could not be established. MARITIME LAW 525 3. At the present time the following groups may be distinguished (H. Rolin, " Labor dage;' Brussels, 1 899) : — (a) The group of the Roman law (Spain, Brazil, Mexico, Germany, and Italy). See, for example, §§ 734-739, especially 7353. {b) The group of oceanic law ("/« droit de V Ocean "). Here an appor- tionment of the damage is followed in part. To this group belong England and France. If both sides were guilty, the damage is appor- tioned : — (aa) in England equally ; {bb) in France in accordance with the greater or less degree of guilt. In each case it must be determined whether the rules of navigation, as inter- nationally agreed upon, have been observed. This is especially so where the cause of the collision cannot be determined; also where there was negligence, but not that of the crew of either vessel, e.g. that of an obligatory pilot for which the owner would not be responsible. § 205. Contracts against Perils of the Sea. V. Bar, ii, p. 226. I. Contracts of insurance against perils of the sea are subject to the usual rules laid down under International Civil Law, influenced, of course, by the peculiarities of Marititne Law. 1. The law of the seat of the insurance company controls. 2. A contractual subjection to a particular system of law may be deduced from the language and technical expressions used, where the parties had freedom to contract. II. The insurer must submit to an adjustment of the average also as against himself. It follows that an adjustment may often be made under a system of law having nothing to do with the insurance contract. III. The Congress of Antwerp agreed almost unanimously upon the following proposition : — " A r exception du reglement des avaries communes pour lesquelles ies assureurs sont censes accepter la hi qui regit les assures, les con- testations relatives au contrat d^ assurance maritime doivent pour les cas non prevus par la police, etre tranchees d'apres la lot, les conditions et les usages du pays auquel les parties ont emprunte cette police." IV. The Institute has also elaborated a uniform law in regard to marine insurance {Annuaire, viii, p. 125). APPENDICES I TREATY OF THE HAGUE INTERNATIONAL CONFERENCES TO REGU- LATE THE CONFLICT OF LAWS IN REGARD TO MARRL^GE Original Text Ddsirant dtablir des dispositions com- munes pour r^gler les conflits de lois en matifere de manage . . . . . . sont convenus des dispositions suivantes : — Art. I Le droit de contracter mariage est , r^gld par la loi nationale de chacun des futurs dpoux, \ moins qu'une disposition de cette loi ne se r^ftre expressdment k une autre loi. Art. 2 La loi du lieu de la calibration pent interdire le mariage des Strangers qui serait contraire k ses dispositions con- cernant : — i°- les degrds de parents ou d'alliance pour lesquels il y a une prohibition absolue ; 2°. la prohibition absolue de se ma- rier, ^dictde contre les coupables de I'adult&re k raison duquel le mariage de I'un d'eux a €\.€ dissous ; 3°. la prohibition absolue de se ma- rier, ddict^e contre des personues con- damn^es pour avoir de concert attent^ k la vie du conjoint de Tune d'elles. Le mariage cdMbr^ contrairement k une des prohibitions mentiondes ci- dessus ne sera pas frappd de nullitd, Translation In order to establish uniform pro- visions to regulate the conflicts of law in regard to marriage . . . [here follow formal parts of the treaty] . . . the following provisions are agreed upon : — Art. I The right of contracting marriage is determined by the national law of each of the parties intending to be married, unless such national law refers expressly to some other law. Art. 2 The law of the place of celebration may prohibit the marriage of ahens if their marriage would be contrary to its own laws regarding : — 1st. prohibited degrees of relation- ship, for which there is an absolute prohibition ; 2d. absolute prohibition to marry declared against parties guilty of adul- tery, for which the marriage of one of them has been dissolved ; 3d. absolute prohibition to inter- marry declared against persons con- demned for having attempted to murder the husband or wife of one of the parties. A marriage performed contrary to one of the above-mentioned prohibi- tions shall not be void, provided it 527 528 APPENDIX I pourvu qu'il soit valable d'aprfes la loi indiqude par Particle i^'. Sous la reserve de I'application du premier alin^a de Particle 6 de la pr^- setite Convention, aucun Etat contrac- tant ne s'oblige h faire c^l^brer un mariage qui, k raison d'un mariage ant^rieur ou d'un obstacle d'ordre re- ligieux, serait contraire k ses lois. La violation d'un empechement de cette nature ne pourrait pas entrainer la nul- lity du mariage dans les pays autres que celui oil le mariage a 6t6 c^ldbre. vifould be valid according to the law re- ferred to in Art. i. Subject to the application of Par. i of Art. 6 of the present Convention, none of the contracting Powers bind themselves to authorize the solemniza- tion of a marriage, which by reason of a prior marriage, or an obstacle of a religious character, would contravene its laws. The violation of an impedi- ment of this nature does not render such a marriage void, except in coun- tries other than that in which the marriage was celebrated. Art. 3 La loi du lieu de la calibration pent permettre le mariage des Strangers nonobstant les prohibitions de la loi indiqu^e par I'article i"', lorsque ces prohibitions sont exclusivement fond&s sur les motifs d'ordre religieux. Les autres Etats ont le droit de ne pas reconnaltre comme valable le mari- age c6l6br6 dans ces circonstances. Art. 3 The law of the place of celebration may permit the marriage of aliens not- withstanding the prohibitions of law mentioned in Art. i, when these are exclusively founded on reasons of a re- ligious character. The other Powers may refuse to rec- ognize the validity of a marriage per- formed under these circumstances. Art. 4 Les Strangers doivent, pour se marier, ^tablir qu'ils remplissent les conditions ndcessaires d'aprfes la loi indiqude par Particle I". Cette justification se fera, soit par un certificat des agents diplomatiques ou consulaires du pays des contractants, soit par tout autre mode de preuve, pourvu que les conventions Internatio- nales ou les autorit^s du pays de la cali- bration reconnaissent la justification comme suffisante. Art. 4 Aliens desiring to marry must prove that they fulfil the conditions necessary to their marriage according to the sys- tem of law indicated by Art. i. This justification must be made either by a certificate delivered by a diplo- matic or consular agent duly authorized by the country to which the party be- longs, or by any other means of proof deemed suflScient by international treaty or by the authorities of the country of celebration. Art. 5 Sera reconnu partout comme valable, quant k la forme, le mariage c6l6hr6 suivant la loi du pays oii il a eu lieu. Art. 5 A marriage solemnized in accordance with the law of the place of celebration shall be, as regards its form, everywhere considered a valid marriage. APPENDIX I 529 II est toutefois entendu que les pays dont la legislation exige une c^ldbration religieuse, pourront ne pas reconnaltre comme valables les manages contractus par leurs nationaux k I'dtranger sans que cette prescription ait 6t6 observ^e. Les dispositions de la loi nationale, en mati^re de publications, devront etre respectdes ; mais le ddfaut de ces pu- blications ne pourra pas entrainer la nuUitd du mariage dans les pays autres que celui dont la loi aurait 6t6 violde. Une copie authentique de I'acte de mariage sera transmise aux autoritds du pays de chacun des dpoux. It is nevertheless understood that countries whose legislation requires ?, religious celebration shall be free to consider as invalid a marriage entered into by their subjects abroad without observing this requirement. The requirements of the national law as to publications must be fulfilled ; but the omission of these publications will not render the marriage void in coun- tries other than those whose laws have been disregarded. An authentic copy of the marriage act shall be sent to the authorities of the country of each of the spouses. Art. 6 Sera reconnu partout comme valable, quant k la forme, le mariage c^l^br^ devant un agent diplomatique ou con- sulaire, conform^ment h. sa legislation, si aucune des parties contractantes n'est ressortissan'te de I'Etat ou le mariage a 6t6 c6\6hr6 et si cet Etat ne s'y oppose pas. II ne peut pas s'y opposer quand il s'agit d'un mariage qui, k raison d'un mariage antdrieur ou d'un obstacle d'ordre religieux, serait contraire k ses lois. La reserve du second alin& de Par- ticle 5 est applicable aux mariages diplo- matiques et consulaires. Art. 7 Le mariage, nul quant k la forme dans les pays ou il a 6t6 cdMbrd, pourra ndanmoins ^tre reconnu comme valable dans les autres pays, si la forme pres- crite par la loi nationale de chacune des parties a 6t6 observde. Art. 8 La pr&ente Convention ne s'applique qu'aux mariages cdldbrds sur le terri- toire des Etats contractants entre per- Art. 6 A marriage solemnized before a dip- lomatic or consular agent in conformity with the laws of his country shall be everywhere recognized as valid as re- gards its form, provided neither of the contracting parties be a subject of the Power where the marriage is solem- nized and provided this Power does not object to it. It will not be free to object to it when contravening its laws on account of a prior marriage or an obstacle of a religious character. The reservation of Par. 2, Art. 5 is applicable to diplomatic and consular marriages. Art. 7 A marriage void as regards form in the country where it was celebrated shall be considered valid in the other countries if the form prescribed by the national law of each of the parties has been observed. Art. 8 The present Convention applies only to marriages solemnized upon the terri- tory of the contracting Powers be- S30 APPENDIX I sonnes dont une au moins est ressortis- sante d'un de ces Etats. Aucun Etat ne s'oblige, par la prd- sente Convention, k appliquer une loi qui ne serait pas celle d'un Etat con- tractant. Art. 9 La pr^sente Convention, qui ne s'ap- plique qu'aux territoires europdens des Etats contractants, sera ratifi^e et les ratifications en seront ddposdes k La Haye d^s que la majority des Hautes parties contractantes sera en mesure de le faire. 11 sera dress^ de ce d^p6t un proc^s- verbal, dont une copie, certifide con- forme, sera remise par la voie diploma- tique k chacun des Etats contractants. tween persons, one of whom at least is a subject of one of these Powers. None of the Powers obligates itself by the present Convention to apply a law which is not that of one of the con- tracting Powers. Art. 9 The present Convention applies oniy to the European territories of the con- tracting Powers. It shall be deemed ratified by the deposit at The Hague of the ratifications of a majority of the High Contracting Parties. A proch-verbal of this deposit shall be prepared and a certificated copy of it shall be forwarded by diplomatic means to each of the contracting Powers. Art. ID Les Etats non signataires qui ont iti reprdsentds k la troisifeme Confi^rence de Droit International Privd sont admis k adherer purement et simplement k la prdsente Convention. L'Etat qui desire adherer notifiera, au plus tard le 31 ddcerabre, 1904, son in- tention par un acte qui sera ddposd dans les archives du Gouvernement des Pays-Bas. Celui-ci en enverra une copie, certifide conforme, par la voie diplomatique de chacun des Etats con- tractants. Art. 10 The non-signatory States which were represented at the Third Conference upon International Private Law shall be admitted to join the present Con- vention without formality. A State which desires to join shall give notice of its intention not later than the 31st day of December, 1904, by an Act which shall be deposited in the archives of the Government of the Netherlands. The latter shall send a duly certified copy of it by diplomatic means to each of the contracting Powers. Art. II La prdsente Convention entrera en vigueur le 60"™' jour k partir du ddp6t des ratifications ou de la date de la notification des adhiJsions. Art. II The present Convention shall go into effect 60 days after the deposit of rati- fications or the date of notification of joining. Art. 12 La prdsente Convention aura une durde de cinq ans k partir de la date du depdt des ratifications. Art. 12 The present Convention shall con- tinue in effect for five years from the date of the deposit of ratifications. APPENDIX I 531 Ce terme commencera k courir de cette date, meme pour les Etats qui auront fait le d^p6t aprfes cette date ou qui auraient adhdrd plus tard. La Convention sera renouveWe tacite- ment de cinq ans en cinq ans, sauf d^nonciation. La ddnonciation devra etre notifide, au moins six mois avant I'expiration du terme visd aux alindas pr^cddents, au Gouvernement des Pays-Bas, qui en donnera connaissance h. tous les autres Etats contractants. La d^nonciation ne produira son effet qu'k I'dgard de TEtat qui I'aura notifi^e. La Convention restera exdcutoire pour les autres Etats. This term shall commence to run from that date, even for the Powers which shall have made the deposit after that date, or which shall have joined later. The Convention shall be deemed tacitly renewed every five years unless terminated. Notice of renunciation shall be given at least six months before expiration of the period mentioned in the preceding paragraphs to the Government of the Netherlands, which shall give notice of it to all other contracting Powers. A renunciation shall be effective only in respect of the Powers which shall have given notice of it. The Convention shall remain in force between the other Powers. II TREATY OF THE HAGUE INTERNATIONAL CONFERENCES TO REGU- LATE THE CONFLICT OF LAWS AND JURISDICTIONS IN REGARD TO DIVORCE AND SEPARATION Original Text D^sirant ^tablir des dispositions communes pour r^gler les conflits de lois et de juridictions en matifere de divorce et de separation de corps. . . . . . . sont convenu les dispositions sui- vantes : — Art. I Les ^poux ne peuvent former une demande en divorce que si leur loi nationale et la loi du lieu ou la demande est form^e admettent le divorce I'une et I'autre. II en est de meme de la separation de corps. Art. 2 Le divorce ne peut etre demand^ que si, dans le cas dont il s'agit, le divorce est admis k la fois par la loi nationale des dpoux et par la loi du lieu oil la demande est formee. II en est de meme de la separation de corps. Art. 3 Nonobstant les dispositions des arti- cles i^' et 2, la loi nationale sera seule observee si la loi du lieu oil la demande estformee le present ou le permet. Art. 4 La loi nationale indiqude par les articles precedents ne peut etre invoquee pour donner k un fait qui s'est passe Translation In order to establish uniform provi- sions to regulate the conflict of laws and of jurisdictions in regard to divorce and separation . . . [here follow formal parts of the treaty] . . . the following provisions are agreed upon : — Art. I Married persons may apply for a divorce provided their national law and the law of the place where the applica- tion is made both admit of divorce. This applies also to separation. Art. 2 The divorce may be granted only for grounds sufficient to obtain the divorce both by the national law of the spouses and by the law of the place where the application is made. This applies also to separation. Art. 3 Notwithstanding the provisions of Arts. I and 2, the national law shall be exclusively observed if the law of the place where the application is made so prescribes or permits. Art. 4 The national law may not be invoked as provided in the preceding articles 532 APPENDIX II 533 alors que les dpoux ou Pun d'eux ^taient d'une autre nationality, le caractfere d'une cause de divorce ou de separation de corps. Art. 5 La demande en divorce ou en separa- tion de corps pent etre formee : — i°- devant la juridiction corapdtente d'aprfes la loi nationale des ^poux ; 2°. devant la juridiction comp^tente du lieu ou les ^poux sont domicili^s. Si, d'aprSs leur legislation nationale, les ^poux n'ont pas le meme domicile, la juridiction compdtente est celle du domi- cile du ddfendeur. Dans le cas d'aban- don et dans le cas d'un changement de domicile opdr^ apres que la cause de divorce ou de separation est intervenue, la demande peut aussi etre formde devant la juridiction competente du dernier domicile commun. — Toutefois, la juridiction nationale est reservde dans la mesure oil cette juridiction est seule competente pour la demande en divorce ou en separation de corps. La juridic- tion etrangfere reste competente pour un mariage qui ne peut donner lieu k une demande en divorce ou en separa- tion de corps devant la juridiction nationale competente. Art. 6 Dans le cas ou des epoux ne sont pas autorises k former une demande en divorce ou en separation de corps dans le pays ou ils sont domicilies, ils peuvent neanmoins Tun et I'autre s'adresser k la juridiction competente de ce pays pour solliciter les mesures provisoires que prevoit sa legislation en vue de la ces- sation de la vie en commun. Ces mesures seront maintenues si, dans le deiai d'un an, elles sont confirmees par la juridiction nationale ; elles ne dure- ront pas plus longtemps que ue le permet la loi du domicile. a ground for divorce or separation, a fact which occurred when the spouses or either of them were of another nationality. Art. 5 An application for divorce or separa- tion may be made : — 1st. before a jurisdiction competent according to the national law of the spouses ; 2d. before a jurisdiction competent according to the law of the place where the spouses are domiciled. Where the spouses have not the same domicile according to their national law, the com- petent jurisdiction shall be that of the defendant. In case of desertion or of a change of domicile after the ground for divorce or separation arose, the application may be made before the competent jurisdiction of the last com- mon domicile. — Provided, however, that the national jurisdiction shall be reserved to the extent that this jurisdiction is considered exclusively competent for an application for divorce or separation. The foreign jurisdiction remains com- petent for a marriage which is not sub- ject to divorce or separation before the competent national jurisdiction. Art. 6 Where the spouses cannot apply for divorce or separation in the country where they are domiciled, either of them may nevertheless apply to the compe- tent jurisdiction of that country for the granting of such provisional relief as its legislation provides in the case of a cessation of communal life. Such relief shall be continued if confirmed by the national jurisdiction within one year; it shall not continue for longer than the domiciliary law permits. 534 APPENDIX II Art. 7 Le divorce et la separation de corps, prononc^s par un tribunal competent aux termes de I'article 5, seront reconnus partout, sous la condition que les clauses de la prdsente Convention aient 6t6 observdes et que, dans le cas oil la deci- sion aurait 6t4 rendue par defaut, le defendeur ait iti ch6 conforraement aux dispositions spdciales exig^es par sa loi nationale pour reconnaltre les juge- ments Strangers. Seront reconnus ^galement partout le divorce et la separation de corps prononc^s par une juridiction adminis- trative, si la loi de chacun des ^poux reconnalt ce divorce et cette separation. Art. 8 Si les epoux n'ont pas la meme nation- alite, leur dernifere legislation commune devra, pour I'application des articles precedents, etre consideree comme leur loi nationale. Art. 9 La presente Convention ne s'applique qu'aux demandes en divorce ou en separation de corps formees dans I'un des Etats contractants, si I'un des plai- deurs au moins est le ressortissant d'un de ces Etats. Aucun ]Etat ne s'oblige, par la pre- sente Convention, k appliquer une loi qui ne serait pas celle d'un Etat con- tractant. Art. 7 A divorce or separation decreed by a court, competent according to the terms of Art. 5, shall be recognized every- where, provided the provisions of the present Convention have been observed and, in case the decision has been rendered by default, the defendant has been cited in accordance with the special provisions of his national law for the recognition of foreign judgments. A divorce or separation decreed by an administrative jurisdiction shall like- wise be recognized everywhere if the law of each of the spouses recognizes such a divorce or separation. Art. 8 If the spouses are not of the same nationality, the system of law last com- mon to each shall be considered their national law. Art. 9 The present Convention applies only to applications for divorce or separation made in one of the contracting Powers where at least one of the parties is a subject of one of these Powers. No Power shall be deemed compelled by the present Convention to apply a law which is not that of one of the contracting Powers. Arts. 10, II, 12, and 13 of this treaty are identical with Arts. 9, 10, 11, and 12 respectively, of the treaty dealing with Marriage (Appendix I, supra). Ill TREATY OF THE HAGUE INTERNATIONAL CONFERENCES TO REGU- LATE THE CONFLICT OF LAWS AND JURISDICTIONS IN REGARD TO GUARDIANSHIP OF MINORS Original Text D^sirant ^tablir des dispositions com- munes pour rdgler la tutelle des mineurs . . . sont convenus les dispositions suivantes : — Art. I La tutelle d'un mineur est r^glde par sa loi nationale. Translation In order to establish uniform provi- sions to regulate the guardianship of minors . . . [here follow formal parts of the treaty] . . . the following provisions are agreed upon : — Aii. I The guardianship of a minor shall be governed by his national law. Art. 2 Si la loi nationale n'organise pas la tutelle dans le pays du mineur en vue du cas oil celui-ci aurait sa residence habituelle k I'dtranger, I'agent diploma- tique ou consulaire autoris^ par la loi de I'Etat dont le mineur est le ressor- tissant pourra y pourvoir, conformd- ment k la loi, de cet Etat si I'Etat de la r&idence habituelle du mineur ne s'y oppose pas. Art. 2 If the national law does not institute a guardianship in the country of the minor by reason of having his perma- nent residence abroad, the diplomatic or consular agent authorized by the law of the State of which the minor is a subject shall be deemed empowered so to do, pursuant to the law of that State, provided the law of the State of perma- nent residence does not oppose it. Art. 3 Toutefois, la tutelle du mineur ayant sa residence habituelle k I'dtranger s'^tablit et s'exerce conformdment k la loi du lieu, si elle n'est pas ou si elle ne peut pas etre constitute conformd- ment aux dispositions de I'article i" ou de Tarticle 2. Art. 3 However, the guardianship of a minor having his permanent residence in a foreign country shall be instituted and administered according to the law of that place, provided it is not, or can not be created pursuant to the pro- visions of Art. I or of Art. 2. 535 536 APPENDIX III Art. 4 L'existence de la tutelle ^tablie con- formdment k la disposition de I'article 3 n'empeche pas de constituer une nou- velle tutelle par application de I'article I'' ou de I'article 2. II sera, le plus tot possible, donn^ information de ce fait au Gouvernement de I'Etat oil la tutelle a d'abord ^t^ organis^e. Ce Gouvernement en infor- mera, soit I'autoritd qui aurait institud la tutelle, soit, si une telle autoritd n'existe pas, le tuteur lui-meme. La legislation de I'Etat ou I'ancienne tutelle dtait organisde decide k quel moment cette tutelle cesse dans le cas prdvu par le present article. Art. 4 The existence of a guardianship created pursuant to Art. 3 shall not prevent the instituting of a new guar- dianship according to Art. i or Art. 2. Information of this fact shall be given as soon as possible to the Government of the State where the guardianship was first created. This Government shall then inform the authority which instituted the guardianship, or if such an authority does not exist, the guardian himself. The laws of the State where the guardianship was originally created shall decide at what moment this guar- dianship ceases in the case mentioned in this article. Art. 5 Dans tous les cas, la tutelle s'ouvre et prend fin aux dpoques et pour les causes ddtermindes par la loi nationale du mineur. Art. 5 A guardianship shall, in every case, begin and terminate at the time and for the causes provided by the national law of the minor. Art. 6 L'administration tutdlaire s'dtend k la personne et k I'ensemble des biens du mineur, quel que soit le lieu de leur situation. Cette rhgle pent recevoir exception quant aux immeubles places par la loi de leur situation sous un regime foncier special. Art. 6 The administration of the guardian- ship extends to the person and over all the property of the minor, wherever it is situated. This rule does not apply to immov- ables subjected by the law of their situation to a special system of law applicable to land. Art. 7 En attendant I'organisation de la tutelle, ainsi que dans tous les cas d'urgence, les mesures ndcessaires pour la protection de la personne et des intdrets d'un mineur Stranger pourront etre prises par les autoritds locales. Art. 7 Measures necessary for the protec- tion of the person and interests of an alien minor may be taken by the local authorities, pending the creation of a guardianship and in all cases of urgency. APPENDIX III 537 Art. 8 Les autorit^s d'un Etat sur le terri- toire duquel se trouvera un mineur Stranger dont il importera d'^tablir la tutelle, informeront de cette situation, d&s qu'elle leur sera connue, les autori- t6s de I'Etat dont le mineur est le ressortissant. Les autoritds ainsi informdes feront connaitre le plus t6t possible aux autoritds qui auront donn^ I'avis si la tutelle a 6t6 ou si elle sera ^tablie. Art. 9 La pr^sente Convention ne s'applique qu'k la tutelle des mineurs ressortissants d'un des Etats contractants, qui ont leur residence habituelle sur le territoire d'un de ces Etats. Toutefois, les articles 7 et 8 de la pr&ente Convention s'appliquent k tous les mineurs ressortissants des £tats contractants. Art. 8 Where it is necessary to create a guardianship for an alien minor sojourn- ing within the territory of a State, the authorities of that State shall give notice of this situation to the State of which the minor is a subject, as soon as it becomes known to them. The authorities thus informed shall indicate as soon as possible, to the authorities who have given the notice, whether a guardianship has been or will be created. Art. 9 The present Convention applies only to the guardianship of minors who are subjects of one of the contracting Powers having their permanent residence within the territory of another of these Powers. However, Arts. 7 and 8 of the pre- sent Convention shall apply to all minors who are subjects of the con- tracting Powers. Arts. 10, II, 12, and 13 of this treaty are identical with Arts. 9, 10, li, and 12 respectively, of the treaty on Marriage (Appendix I, supra). INDEX Abatements of rent, 351. Abortion, claims for procuring. See Morals. Accounts, language used in keeping, 440. Accounts current, contracts of, 465. Acknowledgment, acts of, 331. Actions, limitation of, 168-172. Limitation of, onbills and notes, 509-5 10. Actors, contracts with, 354-355. Adoption, 260-265. Fraud in (Swiss law), 149. Govermnental ratification of, 163. Adults under guardianship, domicile of, 113, 118. Affolter, proposition of, considered, 99. Affreightment, 520-521. Agencies, emigration, status of, 448. Insurance companies', status, 448. Manufacturing, for giving out raw mate- rial, not considered branch establish- ments, 448. Agency, in law of bills and notes, 498-499. In subscription of bills, 484. Agents, commercial, 469. Obligations concluded by, 318— 320. Unauthorized, 498-499. Agobardus, Bishop, remark of, 58, 59. Agreement of parties, in contracts, 300. To submit to foreign law, 158— 161. Agreements of parties, family law not affected by, 213. Aguesseau, French legal authority, 88. Alef, D. F., German jurist, 83. Quoted, 145, 410. Alexander, early Italian jurist, 69. Alexandresco, D., cited, 29. Aliens, countries where subject to national law, 123. Deceased, in Austria, 32. Distinction between citizens and, 102. ■ Distribution of estates of (Switzerland), 414-415. Divorce rights of, 235, 240-242. Effect of domiciliary law on, 116. Engaged in trade and industry, 438-441. Law of succession applied to, 391. Liability of states, for injuries to, 366 ff. Marriage of, in Italy, 220. In Switzerland, 222. Position of, in respect of private law, I02-I05. Reciprocity principle established, 103. Rights, in matters of succession, 103-104. Status of, in principal countries of world, 179-184. Subjection of, to local laws, 114. Aliment, duty of, 257-260. Allegiance, transfer of, 103. Alteration of obligations through fraud, etc., 310-312. Ambassadors, marriages performed by, 226, See Consular marriages. America. See United States. Anders, cited, 194. Antwerp Congress, maritime resolutions adopted by, 514, 515, 517, 518, 520, 521, 522, 525. Apothecaries, Austro-Hungarian treaty ex- ception as to, 439. Apparatus, contracts for building, 352-353. Appert, cited, 146. Appraisers, responsibility of, 351. Arbitration, international courts of, un- feasible, 13. Arena, Jacobus de, data, 67. Argentine Republic, domiciliary law au- thoritative in, 115. Guardianship in, 254. International treaty articles ratified, 15. Law of, as to things, 275, 276-277. Marital property law in, 228, 231. Marriage in, 221, 223, 231. Rights in movables in, 280. Rules of conflict, references, 29, Succession in, 383, 385, 399. Argentraeus, 71-73, 176, 274. Dutch School adopts theories of, 76- 80. Successors of, 73-74, 86-88. 539 540 INDEX Arrest, actions for unwarranted, 365. Right of, for obligations by bill, 508. Asscher, B. E., cited, 168. Asser, C. D., cited, 11, 16, 23, 29, 109, 135, 168,357,471. Assignment, of obligations, 320-322. Of ships, 519-520. Assistance, maritime, claims for, 523-524. Associations, capacity to act, 441—443. For development of International Pri- vate Law, 9-10, 143. Joint, laws governing, 466—467. Assurance. Sec Insurance. Attainment of majority, 206-208. Aubry, cited, 23, 137, 158. Auctions, law governing transactions at, 350-35 '• Audinet, cited, 25. Austria, adoption in, 261. Betrothals in, 217. Civil Code of, 25-26, 103, 115, 120, 184, 260, 292, 310, 324, 345, 401, 402, 408, 476. Claims in bastardy in, 269, 271. Divorce laws in, 234, 241. Domiciliary law authoritative in, 115. Form of marriage ceremony in, 223. Guardianship in, 253. Imperial Proclamation (1854), 26, 32, 375- Law of obligations in, 292. Nationality and place of birth in, I20. Parental authority in, 248. Principle of reciprocity in, 32, 103. Rules of conflict, references, 25-26. Wives' capacity to act in, 194. Sec under various topics. Austrian railways, coupon litigation of, 5, 337-338. Autonomy of parties, 158, 161, 490. Average loss (ships), provisions as to, 520-521. Bader, R., compilation by, 49. Bahr, O., cited, 72, 109, iig. Comments by, on national principle in Switzerland, 122-123. Baldus, successor of Bartolus, 68-6g. Baldwin, Simeon E., cited, 21. Bank checks, 510-512. Bank deposits as security, 324, Banking companies, 443. Bankruptcy, 2, 19. iiif Debt of honor. Bankruptcy law, Hague treaties as to, 17. Bankrupt's status (Switzerland), 178. Banks, liability of, 466. Relations of, in great industrial enter- prises, 336-337. Transactions with, 465-466. Bar, Von, cited, 39, 41, 53, 96, 120, 131, 146, 149, 153, 158, 163, 168, 169, 174, 189, 190, 192, 196, 197, 200, 209, 217, 218, 227, 246, 247, 252, 260, 267, 274, 275, 278, 279, 281, 284, 285, 287, 297, 307, 314, 320, 322, 323, 327, 329, 333, 334, 344, 345. 350. 351. 354. 355. 357. 361. 365. 366, 381, 393, 396, 402, 403, 404, 413, 415, 419, 430, 452, 472, 473, 477. 479. 483. 484. 485. 488, 490. 492, 504. 506, 509, 511, 514, 518, 520, 522, 525. Referred to, concerning — Betrothals, 217. Bills and notes, 489-490, 493, 494. Capacity to act, 174. Insurance contracts, 473. Law of obligations, 297 ff., 314 S., 329, 361. 365- Law of things, 275. Maritime law, 517. Status of natural persons, 196, 438. Suretyship, 323. Transactions at markets, fairs, and exchanges, 350. Barazetti, C, 23, 24. Barilis, cited, 164. Barkowski, cited, 447. Barnett's Trusts, In re, 420. Baron, cited, 55. Bartin, cited, 132. "Bartoline rule," the, 66, 70-71. Bartolus, cited, 55, 311, 373, 406. Dutch-Belgian followers of, 76, 78. French authorities of 1 8th century on, 88. Leader of earliest school of Interna- tional Private Law, 65-68. Principles established by, 64. Successors of, 68-70. Views of, on — Delay in performing obligation, 311. Form {solemnid) of transactions, 164, Law of succession, 373. Lex loci contractus applied to obliga- tions, 296. I^x rei sita:, 274. INDEX 541 Basilesco, cited, 372. Basnage, 73. Bastards, 268-273, 397-398. Bastardy, claims in, 268-271. Bauffremont-Bibesco affair, 243-244. Bavaria, betrothal ordinance in, 215. Law of procedure and International Private Law in, 44-45. Rule of form of transactions in, 164. Beauchet, L., 128, 408. Bekker, E. J., cited, 5, 336. Belgium, Argentrseus' influence in, 76-77. Civil Code proposed. See Laurent. Consular jurisdiction of, 36. Divorce in, 234. Forms for acquisition of rights in land in, 282. Juristic persons' status in, 204. Party to Hague treaties, 16, 18. Protection of firm names in, 451. References for rules of conflict, 24. See also Netherlands. Bella Pertica, Petrus a, data, 68. Bender, cited, 355, 490. Bentham, originates name "International Law," 5. Berghem, Van, cited, 202. Quoted, 204. Bernabei, cited, 63. Bernhoft, quoted, 292. Bernstein, cited, 480. Berviera, G., cited, 52. Betrothal, effect of, on recognition of illegitimates, 271-272. Betrothals, 214-218. Bevotte, Rene de, cited, 161. Beyssac, Jean, cited, 53. Bilateral obligations, law governing, 297, 302-305, 345-357- Bills, discounting of, 465. Law of, 27, 43, 166, 477-512. Unification of law of, desirable, 12. Bills of exchange, capacity to be obligated upon, 485. Bills of Exchange Act, English, 29, 42-43, 481-482, 495-496. Bills of lading, 281. Birth, questions connected with time and place of, 209-210. Records of, 214. Blumer-Morel, cited, 119, 121. Bluntschli, cited, 13, 19. 243. 489. 5°6- Bohic, Henri, French jurist, 69. Bohlau, cited, 92. Bohm, cited, 215, 217, 413. Boissarie, cited, l6l. Bolivia, 263, 440. Bonds, commercial law applying to, 457 ff. Prussian, in England, 461. Bonfils, cited, 339. Books of account, language to be used in keeping, 440. Borchardt, O., cited, 430, 435, 477. Borchardt, S., cited, 477, 479. Bornemann, cited, 92. Bosnia, nationality in, 128. Rules of conflict, references, 26. Bottomry bonds, 519. Bouhier, 87, 146. BouUenois, L., 72, 87, 162, 177, 179, 418. Bouvot, Job, 73. Boyens, E., cited, 513, 514. Branch establishments, commercial law applying to, 447-45°- Insurance agencies as, 474. Protection of names of, 451. Branch offices, laws governing, 469. Brazil, 421, 427, 504. Bretonnier, Barthelemy-Joseph, 74. Breukelman, 16. " Brevarium," Faber's, 68. Brinz, cited, 47, 97. Brocher, 11, 61, 154, 201, 344, 382, 494. Brodeau, Julien, cited, 73, 74. Brunner, cited, 58, 59. Brusa, cited, 95, 367-368. Building-limitations, 278. Bulmerincq, Von, cited, 138. Burge, 85. Burgundus, 77, 164, 175, 176-177. Business entities, capacity to act, 441-443. Buttrigarius, Jacobus, 68. Buzzati, cited, 16, 46, 132, 161, 262, 522. Cahn, W., cited, 16, 119, 128, 194. Calan, De la Lande de, cited, 71. California, contract concluded by tele- phone in, 330. Holding of land by aliens in, 105. Calvo, B., cited, 52, 367. Campos, Torres, cited, 16, 25, 47. Canada, formalities of marriage ceremonies in, 150-151. Pothier's influence in, 87. Rule of form of transactions in, 167. Canals, contracts relating to building, 353. 542 INDEX Capacity, testamentary, 399-401. Capacity to act, Bartolus on, 65. Definition, 173. In respect of succession, 380-381, Lex loci actus applied to, 188. Limited by penal sentence, 176-177. Questions embraced within, summarized, 173-174. Religion and, 200-201. Rules as to — Adults', 186, 187. Bankrupts' and debtors', 178. Business entities', 441-443. Insane persons', 190-192, 198-199. Married women's, 192-195, 413. Merchants', 436-438. Minors', 413. Monks', 200-201. Parents' (of illegitimates), 272. Privileged persons', 200. Prodigals', 189-190. Slaves', 200. Wards', 198. See also Status. Capacity to be guilty of a tort, 365. Capacity to be obligated upon bills and notes, 485-489. Capacity to have rights, distinction be- tween capacity to act and, 173. Capacity to marry, 219-222. Capacity to succeed, 381. Effect of entry into a religious order on, 418-419. Juristic persons', 387-388. Natural persons', 381-387. Unworthiness considered as a bar to, 385-386. Captains of ships, legal powers of, 521. Card, R. de, cited, 214. Carnazza, M. A., cited, 52. Carriers, law of. See Railroads. On inland waters, 473. Castre, Paul de, 69. Catellani, cited, 51, 52, 94, 133, 138, 139, 142, 261, 262, 421. Quoted, 142. Cauchy, E., cited, 513. Causa mortis, gifts, 391-392, 4H. Central America, aliens in, 35. Chaline, Paul, 73. Challande, L., quoted, 8. Champcommunal, J., cited, 372, 477. Changes of names, 209. Chaplin, Stewart, quoted, 400. Chassanasus, dates and works, 70. Chassat, Mailher de, cited, 94. Checks, bank, 510-512. Chiapelli, L., cited, 68. Children, adopted, 260-265. Aliment due to (America and England), 259-260. Born before marriage, 223, 265—268. Domicile of, 113, 118. Illegitimate, 268-273, 331, 397-398. Of plural wife, status, 1 54. Parental authority, 247-250. See Guardianship. Chile, 29, 263, 440. China, aliens in, 123. Consular jurisdiction of United States i". 37- Subjects of the Powers in, 36. Choppin, R., successor of Argentraeus, 73. Choses in action, 288. Chretien, cited, 477, 479. Christian marriage defined, 225. Christinseus, Dutch jurist, 77. Churches. See Juristic persons. Cicero, cited, 53, 120. Cimbali, E., cited, 5. Cinus, dates of, 68. Circus proprietors, contracts of service with, 355. Citizens, classification, in Switzerland, 46 ff. Distinguished from aliens, 102. Subject to laws of foreign state, 114. Citizenship, basis of, 102-103. Fraud in acquisition of, 148. Multiple rights of, 120-121. Release from, 121. United States' doctrine of, 124-127. See Nationality. Claims, assignment of, 320-322. Contrary to good morals, 154-157. For damages, 475-476. Clergymen as witnesses to wills, 408. Clunet, cited, 459. Coal, contracts of sale of, 455-456. Coats of arms, rights to, 208. Cocceji, Henricus de, cited, 82. Cocceji, Samuel de, cited, 83. Codex Juris Bavarici, domicile according to, 110. Codex Maximilianus Bavaricus, 81-S2. Codicils to wills, 408. C. O. D. sales, locus of, 348-349. INDEX 543 Coefficients of personality, Italian School and, 94. Coercive laws, so-called, regarding suc- cession, 393-395. Cogordan, cited, 119, 120. Cohabitation, illicit, 268. Cohn, G., cited, 200, 478, 503, 511, 512. Coinage, ambiguity as to, in wills, 404. Colar gold-field hydraulic plant, 353. Collisions of ships, 522-525. Colombia, rules of conflict, references, 29. Colonies, legal relations of, 47-48. Comity {comieas), doctrine of, 77, 84, 138 ff. " Commentarii," Argentrseus', 71. Commercial law, authorities, 430. Defined, 431. Rules of conflict in, 435-436. Swiss, references, 27. Unification in, desirable, 12. Commercial travellers, licensing of (Swit- zerland), 439. Commissioners to take testimony, 18. Common law vs. statute, in England, 83. Comparative Jurisprudence, distinction between International Private Law and, lo-ii. Compensation in law of obligations, 312 ff. Conditional contracts, 312. Conflict of laws {collisio statutorum), 4-7. Bartolus' doctrine of, 63-66. Beginning of scientific treatment of, 66. Degeneration of theory, in Netherlands, 76-77. Treaties bearing on, 143-144. See Treaties. Conflict of interpretation, 107-108. Congo Free State, 24, 122, 293, 408. Congress of German Jurists, 95, 299, 479. Congress of Stock Companies, 441, 444. Congresses, South American, 14-15. Connecticut, acquisition of real property by aliens in, 105. Consignors, rights and duties of, 469-470. "Consilia," Alexander's, 69. Consolidated debt ("consols"), 338. Consular courts. See Consular jurisdic- tion. Consular jurisdiction. International Private Law in countries under, 35-38. National law and, 123. Consular jurisdictions, rate of interest, 316. Rule of form of transactions in, 166. Consular marriages, 223-224, 225-226. Consular treaties affecting family law, 213. Contracts, accounts current, 465. Affreightment, 520-521. Bartolus' principle as to, 64. Concluded by letter, telegram, or tele- phone, 327-330. Consignment and forwarding, 469-470. Employees', 352-355. Lottery, 355-357. Relating to immovables, 291. Insurance, 473-475. Maritime insurance, 525. Marriage, 214-218, 271-272. Of sale, 345-348. Succession, 415-418. Contuzzi, F., cited, 15, 22, 35, 477. Convention currency, 326. Copyright laws, 433. Coquille, French jurist, 75. Corn Trade Association (London), 457. Corporations, capacity to act of, 441—443. Capacity to be guilty of civil tort, 468. Status in America and England, 205-206. See Foreign corporations and Juristic persons. "Corpus Juris," Justinian's, 54, ill. Cosack, cited, 50, 141, 339, 466. Cotton, trade in, 456-457. Coulon, H., cited, 372. Counter-claims, 331. Courcy, A. de, cited, 513, 514. Courland, 28, 115. Cover, doctrine of, in bills and notes, 484. Creditors, securing estates in favor of, 394. Criminal Law, and International Private Law, 6-7. Criminals, testamentary capacity of, 401. Cujacius, cited, 406. Cuneo, Gulielmus de, 68. Curatory, of insane persons, 252-253. See Prodigals. Currency. See Money. Curtius, Rochus, 69, 296. Cussy, F. de, cited, 514. Customs regulations, 307-308, 362-363. Damages, claims for, 355, 475-476. For injuries at factories, 259, 355. Inflicted by dog (Massachusetts), 359. To foreigners in event of revolt or civil war, 367-369. Danieli, cited, 447. Danz, £., on interpretation, 147, 544 INDEX Dauge, A., cited, 31. Death, questions connected with time of, 209-212. Deaths, records of, 214. Debtor's capacity to act (Switzerland), 178. Debts, assignment of, 321. Money to be used in payment of, 326. Of honor, 332. Partners' liability for, 442. Situs of, 320-322. State, 338-343- Underwriting of, 338. See Limitation of actions. De Castro, Paulus, cited, 296. Deceased wife's sister, 150, 221, Declaration, theory of, in contracts, 329. Declarations between states, relating to law of succession, 427. Defects in creation of contracts, 308-309. Delay, questions of, in contracts, 310-31 1. Delay and negligence, Bartolus' doctrine concerning, 64. Deloison, G., cited, 457. Denationalization. See Expatriation. Denmark, divorce in, 234. Domiciliary law supported by, 39, 1 14. Rules of conflict in, 22, 28. Dernburg, cited, 25, 97, 135, 137, 187, 322, 419. Desfours case, the, 207-208. Despagnet, cited, 153, 154, 161, 265. Devolution of obligation, 312. Dicey, cited, I, 4, 14, 30, 49, 84, 109, 125, 127, 129, 155-156, 172, 195, 220, 275, 291, 308, 334, 360-361, 374. 400, 467, 481, 496. Quoted, 8, 43, 141, 155-156, 185, 204, 294, 296, 300, 303-304. Views of, on — ■ Domicile, 112, 129, 308. Foreign corporations, 204. Law of obligations, 294. Limitation of actions, 171, 172, Status, 185. Diena, cited, 109, 153, 274, 338, 385, 395, 402, 430, 431, 435, 437, 454, 462, 469. Dinus, data concerning, 67. Diplomatists, estates of, 372. Disappearance, statutes governing cases of, 211. Discounting of bills and notes, 465. Discussion, right of, in suretyship, 325. Distraint of rights in pledge, 288. Division, right of, in suretyship, 325. Divorce, 234-247. Acts concerning, elaborated by Ameri- can Bar Association, 43, 239. Domicile in case of (U.S.), 118. Effect of, on contracts relating to suc- cession, 417. Effect of, on rights of succession, 396. Fraud in (U.S.), 150. Hague Conference proposals, 245-247. Marriage after, 223. Tradeswomen affected by, 438. Treaties dealing with law of, 18. Doctors and wills, 402, 408. Documents, fraud in execution of, 148-150. Doguit, cited, 161, 262, 406. Domicile, iio-ii2. Change of, 112-113, 117-118. Effect of change on — Limitation of actions, l6g. Marital property, 228—229. Obligations, 312-313. Fraud in acquisition of, 148. German definition of, 1 10. "Home" distinguished from, 1 17-118. Law of obligor's, in contracts, 297, 302. Of origin {forum originis), no. Persons without a, 114, 123. Plurality of, 115. Prescription, and change of, 286-287. "Residence" distinguished from, 117. United States' view of, 127. "Domiciled" bills, 500-501, 510. Domiciliary law {lex domicilii), 109-119. Application of, to — Alimentary duties, 258-260. Attainment of majority, 207. Marital property, 228. Parental authority, 248—249. Arguments for and against, as the stand- ard, 116. Capacity to act under, 186. Compromise between national law and, proposed, 1 28-1 31. Contracts governed by, 297, 302. National principle reconcilable with, 1 28— 131- Nations which hold doctrine of, 39, 95. Restricted properly to commercial rela- tionships, 123. Status in states supporting, 181. United States' views as to, 117-H9. INDEX 545 Domin-Petruschevecz, A. de, cited, 13, 147, 294. 436- Donations. See Gifts. Double domicile, 115, 117-118. Double nationality, 120-121, 127, 128. •' Droit international prive," the term, 4. Drumpt, Van, " Commentar " by, 23. Dunnel, M. B., cited, 37. Dupin, M., cited, 75. Durantis, Gulielmus, data, 67. Dutch Indies, law for, 23, 180. Dutch School, doctrines of, in seventeenth century, 76—77. Germany influenced by, 80-81. Lex loci contractus applied to obliga- gations, 296. Limitation of actions according to, 168. Status uniformis attempted, 175-176. Valuelessness of, 145. Easements. See Immovables. Eaton, A. M., article by, 43, 239. Eck, Von, cited, 366. " Edictum Theodorici," 59. Egger, cited, 52. Egypt, adoption of French law in, 12. International Private Law in relation to, 38-39- Public debt of, 342. Emigration, 103. Emigration companies, 445-446. Employees, contracts with, 353-355. Endemann, cited, 25, 49, 132, 172, 362, 430. 477- Engelmann, W., cited, 68. England, adoption in, 264. Aliens' position in, 104, 105, 114. Alimentary duties in, 259-260. Application of foreign laws in, 156-157. Bilateral obligations in, 303-304. Bills of Exchange Act, 29, 42, 481, 495. Capacity to act (status) in, 184-186. Consular jurisdiction of, 38. Declarations of death in, 212. Divorce laws in, 234, 237-239, 241. Domiciliary law in, 39, 117-H9. Dutch School's influence in, 83-84. Forswearing allegiance permitted, 103. Forum distinguished hom jus, 152-153. Fraud against internal law of, 150. Guardianship in, 254. Insane persons' status in, 191-192. Intercolonial law of, 49. Juristic persons' status in, 205-206. Law governing movables and immova- bles in, 275, 279, 281, 285. Legislation upon International Private Law in, 34-35- Legitimation of children in, 265-266, 267-268. Limitation of actions in, 1 71-172. Maritime law of, 519-520, 521, 524. Marriage in, 220-221, 224-226. Marital property law in, 232-233. Nationality in, 124-125. Naturalization in, 103. Parental authority in, 249-250. Prescription in, 287. Rights of pledge in, 288. Rules of conflict in, 21-22, 29-30. Set-off to actions in, 313-314. Status of adults and minors in, 188. Succession in, 375, 381, 385, 386, 388, 396, 398, 400, 401, 403, 405 ff. Wills executed in, 166. Wives' capacity to act in, 194-195. See under various topics. Enneccerus, plan of, as to contractual obligations, 299-300. Entails, 283, 390-391, 394. Epocian law of Naupactus, 47-48. Erdmann, cited, 28. Escher, Wyss & Co.'s contract, 353. Esperson, cited, 22, 94, 437. Estates, distribution of, 413-415. See Suc- cession. Esthonia, 28, 115. Euclides, cited, 447. Evasion of law. See Fraud. Everhard, Nicolas, 76, 78, 406. Excessive inequivalence (Jccsio enormis'), defence of, 309. Exchanges, transactions at, 349-351, 461- 462, 489, 508. Ex delicto obligations, 358-365. Execution of wills, form of, 406-413. Executors, appointment of, 399. Expatriation, 121, 126-127. Expositions, transactions at, 35 1. Extradition, 49. Faber, Joannes, 55, 65, 68, 406. Factors, legal rights and duties, 469-470. Fairs, transactions at, 295, 349-351, 489, 507-508. See also Exchanges. False witness claims. ^« Morals. 546 INDEX Fedozzi, cited, l6l, 235, 387, 419, 421. Quoted, 41. Feudalism, influence of, 85, 102. Period of, considered, 61-62. Fick, cited, 506, 507. Fiefdom. See Territoriality. Field, David Dudley, 14, 37, 43, 185, 294, 339. 436, 442- Fiore, Pasquale, cited, 13, 22, 94, 132, 235, 258. 299, 358, 393. 450. 452. Firm names, protection of, 450—453. Fishing laws, 283, 352, 362-363. Flaischlen, G., cited, 29, 389. Foelix, works, 23, 45, 79, 138, 177, 311. Foote, cited, 188, 447, 472. Foreign charities, 204. Foreign corporations, 204. Forenses defined, 102. Forestry laws, 362-363. Forfeiture, questions of, in contracts, 309. Forgery of checks, 512. Formalities, intrinsic and extrinsic, 162. Relating to bills and notes, 501-504. Form, in relation to international trans- actions, 161-168. Of wills, 406-413. Forum distinguished itomjus, 151-153. Forwarders, 469-470. France, aliens' position in, 102, 103. Alimentary duties in, 258. Argentrseus' influence in, 86-88. Citizenship of aliens' children in, 102. Claims in bastardy, 270, 272. Code civil of , 21, 23, 31 ff. Divorce laws in, 234, 236, 241. Bauffremont-Bibesco affair, 243-244. Doctrine of sixteenth century, 70-71. " Domicile " in, iii, 112. Domicile of wife in, 113. Feudalism and the law of, 61. Italian doctrines transplanted to, 70-73. Jurists of, 69-70. Law of, as to things, 275, 276. Legitimation of children, 265. Lex patrics doctrine supported by, 39. Limitation of actions in, 170. Marital property law in, 230-231, Moratory laws of, 506-507. National principle in, 122. Nationality and place of birth in, 121. Negotiations with Spain (1870), 15. Party to Hague Treaties, 16, 18. Prodigals' status in, 189-190. Relation of International Private Law to internal civil law proposed, 154. Status in, 179-180. Treaties with, affecting family law, 214. Wives' capacity to act in, 193-194. See under various topics. Franken, cited, 93, 153. Fraud (so-called) against internal law, 148-151. Contracts involving, 307-308. In matter of checks, 512. Questions of, in contracts, 310. Frauds, Statute of, form of transactions and, 166-167. Freight contracts, railroad, 470-473. Friedlander, J., cited, 26, 253. Froland, cited, 87, 146. Funded obligations defined, 338. Fusinato, J., cited, I, 19, 22, 52, 53, 74, 95, 462. Gabba, C. F., cited, 243, 250. Gaille, Andreas, German jurist, 81, 406. Gambling, 308, 335, 355-357- •S'« Morals. Gareis, cited, 13, 45. Garraud, R., cited, 177. Gerber, cited, 47, 92, 219. Germany, adoption in, 261, 263. Adults' status in, 187. Aliens in, law as to, 32—34. Betrothals in, 216-217. Capacity to act (status) in, i8l. Claims in bastardy in, 269. Consular jurisdiction of, 36. Consular marriages not recognized, 224. Disappearance, statutes governing cases of, 211. Divorce laws in, 234, 235, 236-237, 241. Bauffremont-Bibesco affair, 243—244. "Domicile" in law of, no, 112. Double domicile in, 115. Dutch School's influence in, 80-81. Emigration permitted in, 103. Expatriation in, 128. Interstate legal questions in, 49—50. Introductory Act, 22. Law of obligations in, 292. Legitimation of children in, 265. Limitation of actions in, 1 70. Marital property law in, 229-230. Marriage in, 220. Minors' status in, 187. National principle supported by, 39, 122. INDEX 547 Germany [continued'^ — Nationality and place of birth in, 120. Parental authority in, 247, 249. Party to Hague treaties, 16, 18. Reference in law of, 133, 134, 135. References for rules of conflict in, 24-25. Rule of nationality adopted in, 96. Statutory theory in, 88-90. Territorial principle developed in, 61. Treaties of, affecting family law, 213. See under various topics. Gianzana, cited, 102, 431. Gierke, cited, 96, 139, 149, 159, 262, 298. Gifts, causa mortis, 39 1— 392, 411. Inter vivos, 344-345. See Wills. Gilson, J., cited, 55. Gleitsmann vs. Gleitsmann, 232. Gloss, quoted, 63. Gliick, cited, 88, 102. Goldmann, cited, 50, 134. Goldschmidt, cited, 197, 430, 477, 506. Goppert, treatise by, 99. Greece, consular jurisdiction for benefit of, 36. Form of marriage ceremony in, 223. Multiple rights of citizenship in ancient, 120. National principle supported by, 1 22. Rules of conflict, references, 28-29. Treaties concerning family law, 213. Greeks, international conceptions of ancient, 52-53. Gregory, Professor, 21, 349. Grotius, Hugo, 84, 195, 339-34°- Griinhut, 477, 479, 490, 504. Guardian, removal of domicile of ward by (U.S.), 118-119. Guardians, 118-H9, 316, 352. Guardianship, 18, 26, 250-251. Status of persons under, 189-192. Guatemala, 213. Guillaume, cited, 16, 226. Haerdtl, C. von, cited, 336. Hague Conferences, 16-19, 40-41. '40- Proposals of, as to — Divorce, 245-247. Guardianship, 256-257. Law of obligations, 306. Law of things (Roguin's project), 290. Succession, 382-383, 385, 390, 392, 393, 402, 411, 413, 416, 420, 427 ff. Treaty upon marriage elaborated by, 226-227. Uniformity in development of Interna- tional Private Law aimed at, 40-41. Halot, A., cited, 24. Hartmann, G., cited, 97, 336. Hautefeuille, L. B., cited, 513. Heck, cited, 15, 520. Henrys, Claud, cited, 73. Heresy, exclusion from succession because of religious, 371. Hertius, cited, 82, 146, 406. Herzegovina, 26, 128. Hindenburg, cited, 327, 447. Hiring, contracts of, 351-352. Hofacker, German jurist, 82. Holland, Argentrseus' influence in, 76-77. England affected by law of, 83. Laws of rules of conflict in, 21. HoUs, F. W., cited, 13. Holtzendorff, Von, cited, 35, 52, 243. Home, definition of (U.S.), 118. See Domicile. Hommel, German jurist, 82. Honduras, treaties with, affecting family law, 213. Honor, obligations of, 332. Ho-rei, provisions in, 30, 119, 121 ff. Huber, Max, cited, 339, 406. Huber, Ulricus, 78-80, 84, 85, 145, 148, 168, 175-176. Hunting laws, 283, 352, 362-363. Husband, position as regards succession, 395-396,417-418. Hypnotic suggestion, plea of, 309. Illegitimates, recognition of, 271-273. Immovables, contracts relating to, 291, 345-347. 348. 403- Laws relating to, 278-279. Prescription of, 285-287. Property rights in, 165, 274-279. Succession to, 374, 389-390. Imprisonment for debt, 18. Indemnity for damages suffered through civil war, 367-369. India, hydraulic plant contract in, 353. Indiana, holding of land by aliens in, 105. Indigents, defined, 102. Individuals, liability of, for state debts (proposed), 339-340- Indorsee of bill or note, 483. Indorsements. See Bills and Notes. 548 INDEX Industrial enterprises, international obliga- tions of, 336-338. Inequivalence, excessive, 346. Inheritances, contracts concerning, 415- 418. Distribution of, 413-415. Renunciation of, in favor of third per- son, 415. See Succession. Injuries, to foreigners, 366-369. Received at factories, 259. Insane persons, capacity to act of, 190-192. Divorce of (Switzerland), 240. Domicile of, 113. Guardianship of, 252-253. Status of, 198-199. Institute of International Law, the, 9-10, 143. 369- Action taken by, on — Acquisition of property by aliens, 104. Consular jurisdiction, 37. Divorce, 245-246, 273. Emigration, 445. Guardianship, 256—257. Juristic persons' status, 205. Law of bills, 488, 505, 506. Marital property, 233. Maritime law, 517, 522, 523, 525. Marriage, 273. Legitimation of children, 265. Nationality, 127. Law of marital property, 233-234. Reference, 134-135. State's liability for injuries, 369. Status of natural persons (Von Bar's proposals), 196-197, 438. Succession, 376, 388. Insurance, contracts of, 473-475. Maritime, 525. Insurance agencies, foreign, as branch establishments, 474. Insurance companies, foreign, in Prussia and Switzerland, 445. Restrictions relating to, 443, 445. Status of agencies, 448. Insurance contracts, 318. Insurance policies, distraint of, 288. Insurrectionary transactions. See Morals. Intercantonal law of Switzerland, 46-47. Intercolonial law, birth of, 47-48. Interdictions accompanying penal sen- tences, 176-177. Interest, payment of, 314-318. Internal civil law, relation of International Private Law to, 153-157. International American Conference at Washington (1890), 15, 43. International civil procedure, effect of Hague Conferences on, 17-18. International Private Law, associations for development of, 9-10, 143. Attempts at codifying system of, 13-19. Basic principles of, 138-141. Basis of doctrinary discussion, 43-45. Codification of, by treaties, 14-19. Comparative Jurisprudence distinguished from, lo-ii. Consular jurisdiction and, 35-38. Definition, 6-7. Difference between Public Law and, 7- 8,45. Divisions of, 6. Dutch School's influence on, 76-80. First English case involving, 84. History of development of, 51—100. Interpretation in, 146-147. Legislation upon, 31-35. Neutrality of principle, 128-131. Nomenclature, 4-5. Objections to name, 5-6. Origins, 2, 51-63. Positive rules of, desirable, 39-42. Relation to internal civil law, 153-157. Study of, at universities, 142. Swiss Civil Code and, 27-28. Task of science, 142-145. Theoretical discussion vs. positive rules of, 39-42. Theories of, held by different nations, 39. International Law Association, 9, 479. Interpretation, conflict of, 107—108. In International Private Law, 146-147. Of obligation of parties to a bill, 501. Interprovincial law, distinction between international law and, 46. Interstate law in America, 46, 48-49. Introductory Act, German, 22, 32-33. Provisions in, as to — Capacity to act, 181. Form of transactions, 163, 165, 166. Juristic persons' status, 203. Nationality, 124. Reference, 134. Reprisals, 105. Wives' capacity to act, 194. See Germany and under various topics. INDEX S49 Italian School, basis of, 94. Influence of, 95-96. International Private Law vs. internal civil law according to, 154. The new, 94-95. Italy, Codice Civile of, 22, 205, 220 ff. Damages paid to subjects of, 368. Development of International Private Law in, 62-69. Disposizioni, 22, 31, 122 ff. Doctrines imported from, to France, 70-73- "Domicile" in, iii. Juristic persons' status in, 205. Jurists of, 67-68. Law of, as to — Adoption, 261. Aliens and acquisition of property, 104. Citizenship of aliens' children, 102. Divorce, 234, 235-236, 241. Guardianship, 253-254. Obligations, 292, 297. Legitimation of children, 265. Marital property, 229. Marriage, 220. Parental authority, 247. Rights in movables, 280. Status, 179. Things, 276. See under various topics. Laws of rules of conflict in, 21, 22—23. Lex patriis doctrine supported by, 39. Modern school of International Private Law in, 94. National principle in, 122. Negotiations on subject of International Law begun by, 15. Party to Hague treaties, 16, 18. Roman law accepted in, 62-63. Rule of form of transactions in, 164. Subjection to foreign law by agreement in, 159. Treaties with, relating to the family law, 213, 214. Iwanowsky, cited, 9. Jacobs, " On Domicile," 117. Japan, aliens and acquisition of property in, 104. Capacity to act in, 182. Codes of law adopted in, 12. Consular jurisdiction abolished in, 36. Expatriation in law of, 121. Forms for acquisition of rights in, 282. /fo-ra provisions, 30, 119, 121 ff. Law of obligations in, 293, 362. National principle supported by, 122. Represented at fourth Hague Con ference, 17. Rules of conflict in, 21, 30. Treaties with, affecting family law, 213. See under various topics, Jaques, cited, 95, 479, 506. Jettel, cited, 26, 187, 248, 261, 390. Jitta, cited, i, 43, 45, 46. Joint associations, 466-467. Joint contracts, 309-310. Joint suretyship, 323-324. Judgments for processual costs, 18. Jurisdiction, of courts, 151-152. Distinction between substantive law and, 151-153- Juristic persons, 202-206, 441-442, 468. Capacity to succeed of, 387-388. Gift making and taking by, 344, 392. Legacies to, 403. Liability of, as unauthorized agents, 498. Jurists, data, 67-88. Jus, distinction between yir«OT and, 151 ff. Jus gentium, Roman, 54, 55-56. Justinian, "Domicile" according to. III. Juvara, A., 268. Kahn, Friedrich, cited, I, 5, 10, 39, 44, 106, 109, 132, 157. Kanaka Nian, In re, 1 26. Karnebeck, H. A. van, 366. Kaufmann, W., 342, 447. Keep's Will, 417-418. Keidel, cited, 132, 226. Keller, cited, 40, 88. Kennedy, Sir William, 20. Kent, " Commentaries," 138, 169, 1 72, 221, 317, 428. Kierulff, doctrines of, 88, 89. Kingsdown Act, 404, 405, 409, 412. Kipp, Th., quoted, 55. KirchstetterrMaitisch, 26. Knowledge, theory of, in contracts, 329. Kollisionsnormen. See Rules of conflict Krainz-Pfaff, cited, 194. Kreittmayr, quoted, 148-149. Kuhlenbeck, cited, 45, 49. Labor, contracts for, 351-353. lAEsio enormis, 346. SSo INDEX Lainf, cited, 5, 6, 16, 24, 46, 51, 59, 60, 61, 62, 63, 68, 70, 71, 74, 75, 76, 77, 78, 83, 84, 85, 86, 135, 161, 202, 226, 383, 389. Land, capacity of juristic persons to ac- quire, 203. Contracts relating to, in England, 291. Forms for acquisition of rights in, 282. Holding of, by aliens, 104-106. Legacies of, 403, 405. Letting and hiring of, 351-352. Sale of, 345. Landsberg, E., cited, 82. Lapradelle, A. Geouffre de, 119. Laurent, cited, 59, 60, 95, 154, 165, 180, 257, 262, 294, 328, 344, 346-347. 357. 371. 381, 386, 390, 393, 418. Draft for new Belgian code, 24, 95, 122, 154, 197-198, 288, 299, 357, 360. Lex patrie theory supported by, 95. Project relating to succession, 371. On International Private Law vs. in- ternal civil law, 154. Lauriere, Eusebe de, 74. Lauterbach, W. A., 82. Law of marital property, 228-231. Law of things, 274-290. Lawrence, cited, 35, 84. Leases, 351-352. Lebrun, Denis, French jurist, 74. Le Caron, L. C, dates and works, 73. Lsges barbarorum^ period of, 58-61. Leges Romana, the so-called, 58-59. Legitimation of children born antenup- tially, 265-268. Lehmann, H. O., cited, 445, 467, 477, 482. Lehr, cited, 25, 28, 114, 246, 257, 435. Le Moine, A., cited, 513. Leonhard, K., cited, 45, 302. Leschinsky, R., German authority, 90. Letter, transactions by, 327—330, 461- 462. Letting, contracts of, 351-352. Leu, Swiss legal authority, 86. Lev6, A., cited, 25. Levi, L., cited, II, 339, 430. Lex Anasiasiana, 321. Ljx Aquilia, applied to collisions of ships, 524- Lex " cunctos populos quos," 63. Lex domicilii. See Domiciliary law. Lex lata distinguished from lex ferenda, 44. Lex patria, 39, 94-96, 178-184. ^^ Na- tional law. Of maritime law, 516-518. Lex rei sitce, 273, 278-279, 290, 353, 370. Lex solutionis applied to obligations, 296, 297-298. Lex situs applied to contracts relating to land, 291. L'Hommeau, Pierre de, 73. Liability for warranty, 456-457. Libels, press, 365-366, 476. License Taxes for Commercial Travellers, Swiss statute, 439. Liebig Extract Company case, 452. Lien. See Pledge. Lilienthal, cited, 50, 134. Lima, congress at (1878), 14. Treaty of (proposed), 95, 122, 228, 294, 371, 406. Limitation of actions, 168-172. Applied to claims in bastardy, 270-271. Prescription distinguished from, 287. Limitation of vindication in respect of movables, 284-285. Limitations of liability of corporations, 446. Livonia, 28, 115. Loans, law governing, 334-336- State, 338-343. See Lottery contracts. " Locus regit actum," doctrine o{, 162, 166, 167, 215, 222-223, 224-225, 281- 282, 324. Lohnholm, criticism of, 434. Lot du pavilion, la, ^i 6-5 1 8. Loi territoriale, defined, 137. Lombard business, 465. Lorimer, cited, 19, 109, 138. Lottery contracts, 355-357. Louet, Georges, 73. Louisiana law, 29. Rule of form of transactions in, 164. Mortgages on ships under, 519. Lunatics. See Insane persons. Luxemburg, party to the Hague treaties, 16, 18. Lyon-Caen, cited, 430, 432, 438, 440, 443, 444. 445. 446, 457. 465. 467. 468, 477. 479. 492, 520, 522. Machinery-building contracts, 352-353. Maharajah of Mysore, Re, 353. Mail, contracts concluded by, 327-330. Majority, attainment of, 206-208. INDEX 551 Mamelok, cited, 202, 419. Mancini, 15, 94. Mandate, 333-334- ■5'« Agency. Marcusen, cited, 28, 200. Maritime law, 12, 513-525. Markets, transactions at, 349-351, 489, 507-508. See Exchanges. Marriage, Acts concerning, elaborated by American Bar Association, 43, 221. Annulment of. See Divorce. Effect of, 223. Entrance into, 218-226. Fraud in, 148—150. Laws dealing with (Swiss), 27. Legitimation of children born before, 265-268. Nationality and, 125. Principle of subjection to special system of law applied to, 160. Treaties dealing with, l8, 226-227. Venia cetatis' effect on, 208. Marriage ceremony, 165, 222-223. Marriages, consular, 223-224, 225-226. Records of, 214. Marriage settlements, Bartolus' doctrine, 64. Martens, F. von., cited, 342, 374, 375, 376, 389, 390, 428. Massachusetts, acceptance of contract, 330. Aliens and acquisition of real property, 105. Domicile in case of divorce, u8. Example of actions de pauperie in, 359. Masse, cited, 23, 430. Masuer, early French jurist, 6g, 406. Medina, Diez de, 15. Meier, J. G., German jurist, 83. Meili, cited, i, 10, 16, 21, 28, 95, 128, 145, 17s. 246. 327. 338, 37'. 444. 471. 473. 496. Mentha, quoted, 27. Merchants, legal position of foreign, 438- 441. Merchant Shipping Act, English, 519. Mercier, Andre, dissertation by, 1 72. Merlin, cited, 88, 329. Messenger, contract concluded by, 319. Messir, Th., cited, 344, 402. Mevius, D., cited, 82, 374. Mexico, form of transactions, 164. National principle in, 122. Meyerowitz, A., cited, 220. Milhaud, J., cited, 53. Milhaud, L., cited, 395. Milovanovitsch, M., cited, 339, 341. Mining rights, 278. Minor, cited, 288, 314, 348, 405. Minors, guardianship of, 18. Responsibility of, for tortious acts, 476. Taking up succession by, 413. Testamentary capacity of, 400-401. Mobilia ossibus inharent, adoption of maxim, 279, 281. Mobilia personam sequuntur, the maxim, 279, 281. Mobs, damages for injuries inflicted by, 367-369- Mohammedan countries, 35-37, 139. Molinceus, Carolus, 164, 228, 406. Comparison of Argentraeus and, 71-72. Sketch of, 74-75. Mommsen, cited, 52, 56, 294. Project of, relating to succession, 371. Monaco, 23. Monasteries, 394, 418-419. See Juristic persons. Money, kind of, for payment of debts, 326, 335. 336- Possibility of ambiguity concerning, in wills, 404. Money loaned. See Interest and Usury. Monks, capacity to succeed of, 418-419. Gift-making capacity, 344. Montenegro, 28, 122, 124, 156, 277, 293. Montevideo, congress at (1889), 14-15. Treaty of (proposed), 115, 167, 172, 228, 294, 371, 389. Moore, John Bassett, 14, 49, 126, 301, 361, 405. 474. 522. 524. Morals, claims contrary to good, unen- forceable, 154-157. Contracts contrary to good, 307-308. Moratory interest, 316. Moratory laws, French, 506-507. Mortgages, 278, 315, 335, 464. Maritime, 518-519. Moulin, E., n. Movables, contracts of sale applied to. 347- Prescription of, 285-287. Real rights in, 279-281. Rights of pledge in, 287-288. Succession to, 373-374. Vindication of, limited, 284-285. Moynier, G., 9. Miihlenbruch, cited, 88. Muller, W., cited, 172. 552 INDEX ■ Multiple forensic domicile, 115. Mynsinger, J., German jurist, 82. N. &• A., significance of abbreviation, 22. Names, changes of, 209. Of firms, 450-453. Rights in, 208-209. Nationality, acquirement of, 119, 124-127. See Naturalization. Domiciliary principle reconcilable with, 128-131. Multiple, I20-I2I. Persons without, 127. Place of birth and, 120-121. Principle of, not traceable to leges bar- barorum, 60-61. Want of, 123, 124. National law {lex patrice), 119, 128, 178- 181, 186, 215, 219-220, 226-227, 228, 247, 248, 295, 301. Arguments in favor of, 123. Countries which support, 122. Naturalization, fraud in, 1 19-120, 148. Jurisdiction in matters of, 1 19-120. Provision in Austria, 194. United States' doctrine, 125-126. Naupactus, Epocian law of, 47-48. Negligence, questions of, in contracts, 310. Nessi, M., cited, 49. Netherlands, the, divorce in, 234. Edict of 161 1, 76. National principle supported by, 122. Party to Hague treaties, 16, 18. Plans of, for congress of nations, 16. See Hague Conferences. References for rules of conflict, 23. Rule of form of transactions in, 164. Status in, 180. Theories of Argentrseus in, 76-77. Neubauer, cited, 29, 268. Neumann, G., cited, 21, 25, 28, 41, 114, 122, 159, 328, 361. Neumeyer, K., cited, 51. New Orleans mob case, 368. New York, divorce in, 238. Holding of land by aliens in, 105. Legatee's capacity to succeed in, 388, Limitation of actions in, 1 71-172, Lottery rulings in, 356-357. Rule as to wills in, 412. Nicaragua, 213. Niedner, A., cited, 24, 49-50, 108, 134. Niemeyer, cited, I, 21, 25, 34. Nobel dynamite factory, In re, 354. Nobility, rights accorded to titles of, 208- 209. Norsa, C, cited, 22, 506. Propositions of, 488. Norway, 16, 22, 28. Domiciliary law supported by, 39, 114. Reciprocity applied to aliens in, 103. " Nostrification " of foreign law, 139. Notes, commercial law applying to, 457 ff. Discounting of, 465. Law of, 477-512. Notice of dishonor of bill or note, 503, 505. Notice to quit, 351. Obligations, affreightment contracts subject to law of, 520. Agents' responsibility in, 318-320. Assignment of, 320-322. Bilateral, 345-357- By bill, limitation of, 509-510. Classification of, 305-306. Ex delicto, 358-365. International, of great industrial enter- prises, 336-338. Legality of, 307-308. Particular, 330 ff. Payment of debts of honor, 332. Performance of, 325—326. Quasi ex contractu, 357—358. State, 338-343. Surety's, 322-325. Swiss code of, 27. Unilateral, 331-345. Obligor's domicile, law of the, in contracts, 297, 302. Odier, cited, 49. Oertmann, P., cited, 463. Officials, security for, 324, 325. Ofner, J., II. Ohio, right of aliens to acquire real prop- erty in, 105. Oldradus, early jurist, 67. Oleron, law of, as to collisions of ships, 524. Olivi, L., cited, 158, 257. Opzoomer, C. W., cited, 23. Order, questions connected with public, 154-157- Orlando, cited, 63. Ortmann, cited, 74. Outlawry of action on bills, 509-510. Set Limitation. Ownership, laws relating to, 278 S., 283. INDEX 553 Paepe, P. de, cited, 173, 522. Pan-American Congress (1889-1890), 15. Papal office, 204, 387. Pape, Gui, early French jurist, 69. Papon, dates of, 69. Pardessus, cited, 420, 505, 514. Parental authority, 247-250. Parieu, De, cited, 433. Partnerships, 206, 441-443, 466-467. See Juristic persons. Patents, 12, 433, 451. Pawnshops, 466. Payment, of interest, 314-318. By mistake, obligations arising out of, 357-358- Peace Conference (1899), 19, 20. Peboorgh, E. van, cited, 514. Peckius, Petrus, 76, 78, 406. Pellis, G., cited, 227. Penal sentence, effect of, on capacity to act (status), 176-177. Pennsylvania, limitation of aliens' land- holding in, 106. Peremptory rights of succession, 396-399. Performance of obligations, 325-326. Peritch, Jivoin, cited, 26, 1 28. Persia, foreigners in, 36, 123. "Person" defined, 173. Personality, existence and end of physical, 209-212. Law of, 58-60. See Race law. Peru, 29. Petitpierre, L., cited, 2ig. Petruschevecz. See Domin-Petruschevecz. Pfeifer, doctrines of, 93. Phillimore, Sir Walter, 4, 20, 63, 129, 148, 152. 333. 334, 340. 442, 487. 496. Physicians and wills, 402, 408. Pic, P., cited, 218. Piccard, J., quoted, II. Pillet, cited, I, 98, 247, 397. Criticism of work of, 98. Place of performance, law of, in contracts, 296, 297-298, 301-302. Planck, G., cited, 25, 45, 99. Play-actors, contracts with, 354-355. Pledge, rights of, in movables and immov- ables, 287-290. Of ships, 517. Poland (Russian), national principle sup- ported by, 122. Police laws. See Fishing, Forestry, Hunt- ing, and Smuggling. Politis, N. E., cited, 338, 342. Poor persons, procedure in case of, 18. Portugal, 16, 18, 25, 122, 164, 181, 234, 241, 435. 436. 439. 448, 453- Commercial code of, 433, 446 if. Possession, rights of, 283. Postal law, 12, 433. Post cards, libels on, 366. Pothier, indorser of Argentrseus, 87. Power of attorney, 333-334. Pradier-Foder^, cited, 29, 102, 433, 513. Prescription of movables and immovables, 285-287. Press libels, 365-366, 476. Presumption of complicity, 363. Prevention of Unfair Competition, German statute, 439. Primogeniture, consideration of, in law of succession, 393. Principle of Territoriality. See Territorial principle. Procedure, divisions of international, 4. Domicile in, no. Possibility of conflicts in, 2. Right of, regarding bills and notes, 508. Process interest, 316, 318. Procurators, 469. Procurers, 335. See Morals. Prodigals, 189-190, 401. Professio juris, 59, 377-380. Proof, questions of, regarding bills and notes, 509. Protection of firm names, 450-453. Protest of bills or notes, 502-503. Prussia, presumption of complicity in, 363. See Germany. Pseudonyms, rights to, 208. Public credit, laws relating to, 278. Purism in terms, German effort for, 433. Putter, writings of, 93. Quasi contracts, 357-358. Quasi ex contractu obligations, 357-358. Quasi torts, laws governing, 359-362. "Questions sur les demissions des Hens," Boullenois', 72. Race law, range and results of, 58-61. In Switzerland, 86. Railroad companies, restrictions relating to, 445. Railroad freight, contracts, 470-473. Treaty concerning, 294. 554 INDEX Railroad law, I2, 433. Railroads, contracts relating to building of, 353- Shipment of goods by, 470-473. Railroad stations not considered branch establishments, 448. Rapporti interstatuali in Italy, 46. Rates of interest, 315. Reasonableness, application in interpreta- tion of laws, 147. Receipt, execution of, 326. Reception, theory of, in contracts, 329. Reciprocity, principle of, 32, 105-106. Recourse, 504-505, 506, 511-512. Recuperators, the, 55, 57-58. Reference and re-reference, 132, 133, 134, 372, 482. Regelsberger, cited, 96, 133, 149, 158,217, 218, 298, 346, 351. Registry of ships, 516. Religion, status affected by, 200-201. Religious orders, 200-201, 418-419. See Juristic persons. Renaud, cited, 337, 477. Renault, L., cited, I, 384, 389, 432, 438, 440, 443, 445, 457, 465, 467. Renusson, Philippe de, 73. Reprisals, defined, 105. Residence, definition of (U.S.), 118. See Domicile. Restraints on testamentary dispositions, 402-403. Retaliation, 105. Retortion, defined, 104, Revenue, evasion of, 150. Revolts, states' liability to foreigners in cases of, 367-369. Ricard, Jean Marie, cited, 73, 227. Riccii, German jurist, 80, 82. Rights of pledge in movables and immov- aliles, 287-290. Rivier, cited, 4, 9, 45, 139, 168, 357. Road-building contracts, 353. Rocco, N., German jurist, 74, 82. Rodenburg, Christian, works of, 77. Roguin, E., cited, 26, 46, 214, 230. Project of, relative to law of obligations, 290, 306. Quoted, 426. Rolin, A., cited, 24, 77, 175, 243, 261, 376. 435- On effect of penal sentences, 177. Roman law, 153. Romans, international conceptions of ancient, 53-58. Rosate, Albericus de, 65, 68, 176, 373, 406. Rosenthal, cited, 471. Rossel, cited, 26, 504. Roth, cited, 45, 61. Roumania, 16, 18, 29, 104, 122, 421. Rules of conflict, ancient authorities, 143. Bartolus' doctrine, 63—66. Commercial law, 435—436. Definition, 106. Introductory law, classification, 108. Positive vs. negative, 107. Reference and re-reference in, 132— 134, Science as applied to, 142-145. States have equal rights to adopt, 108. Systems for regulating, 21 ff. Russia, divorce laws in, 234, 241. Expatriation in, 128. Limitation of actions in, 170. Marriage in, 222. Marriage ceremony provisions, 165, 223, Rules of conflict, references, 28. Treaty with Germany (1894), 443. Sachsenspiegel, the, 62. Sacoupolo, cited, 202, 443. Sale, contracts of, 345—348. Sales, C. 0. D., 348-349. Law applying to commercial, 455-457. Salesrooms not considered branch estab- lishments, 44S. Salicet, successor of Bartolus, 68—69. Salvador, 213. Salvage claims, 523-524. Sande, Joannes a, 78. Savigny, cited, 4, 47, 58, 63, 68, 90, 136, 137. 153. 16S. 210. 219. 278, 280, 284, 297, 298, 302, 309, 321, 341, 347. 359> 382. 457- Domicile defined by, ill. Opposition to doctrines of, 97. Theory of, considered, 91-92. Saxon Code, cited concerning rights in things, 276. Schaffner, German jurist, 90. Schauensee, Meyer von, 119. Schmidt, A., cited, 52, 92. Schwabenspiegel, the, 62. Scotland, courts of, independent of English courts, 49. Scrimshire vs. Scrimshire, 83. Seaworthiness of ships, 516-517. INDEX 555 Securities, regarded as movables, 281. Security. See Suretyship. Segovia, 15. Sentences, penal, and status, 176-177. Servants, contracts with, 353-355. Servia, 28, 213, 241, 421, 423. Servitudes, status and capacity to have rights in regard to, 200-201. Set-offs, 312-314, 469, 509. Seuffert, cited, 269, 287, 372, 493, 509. Shadwell, Sir L., quoted, 250. Shares, transactions in, 468. See Stock companies. Shipment of goods, 470-473. Shipping contracts, 318-319. Ships, acquisition of nationality by, 5 16. Assignment of, 519-520. Claims for assistance to, 523—524. Collisions of, 522-525. Insurance of, 525. Ownership of British, denied to aliens, 104, 105. Pledge of, 517-519. Siam, 31, 36, 123. Sicherer, Von, cited, 338. Silk, raw, claims as to quality of, 457. Simon, Denis, 73. Slander, 366. See Libel. Slave trade, 335. See Morals. Smuggling, 307-308, 362-363. .$■« Morals. Societies for development of International Private Law, 9-10. SoUmnia intrinseca and extrinseca, 162. South Africa, adoption of Dutch law in, 12. South America, aliens in, 35. Spain, divorce in, 234, 241. National principle supported in, 122. Negotiations with France (1870), 15. Party to Hague treaties, 16, 18. References for rules of conflict in, 25. Rule of form of transactions in, 164. Treaties with, affecting family law, 213. See under various topics. Spaing, cited, 430, 477. Spangenberg, E., cited, 187. Speculation in differences, 462-465. Speculator, early jurist called, 67-68, 176. Speculators, 462-465. " Speculum judiciale," Durantis', 67, 68. Spendthrifts. See Prodigals. Spies' claims. See Morals. Starr, F., cited, 26, 413. States, liability of, for injuries inflicted on foreigners, 367-369. Rights of, in succession, 419-421. Status, according to law of principal nations, 179-184. American and English views of, 184-186. Effect on, of penal sentence, 176-177. Juristic persons', 202-206. Privileged persons', 200. Questions embraced within, summarized, 173-174- Servitudes and, 200-201. Ubiquity of the, 179. See Capacity to act. Statut personnel (personal statute), de- fined, 135-136. Statut reel (real law), defined, 136. Statut territorial (territorial law), de- fined, 136. Statuta, Bartolus' classification of, 66. In mediaeval Italy, 62. Modification of, 70-71. Statute of Bills, German, 480-481, 482,484, 486-487, 496, 506-507. Statute law in England, 83. Statute of limitations. See Limitation of actions. Statutory theory, German, 88-90. Staub, cited, 482, 492. Stimson, F. J., cited, 401, 406, 412. Stobbe, cited, 47, 61, 138. Stock companies, laws governing, 467. Liability for debts of, 442. Treaty provisions as to, 443-445. Stock corporations, capacity to act of, 441-443- German, of limited liability, 446. Treaties bearing on, 443-445. Stockmans, dates and works, 78, 175. Stocks, treaty provisions relating to traffic in, 444. Stocquart, cited, 219, 223, 266, 308, 401. Stolzel, A., cited, 243. Stoppage in transitu, right of, 285. Storage, places for, not considered branch establishments, 448. Stork, cited, 102, 513. Story, cited, 4, 30, 67, 83, 84, 138, 146, 168, 171, 195, 201, 232, 249, 275, 285, 313. 317. 321. 324. 325. 334, 336, 351. 386. 419. 501- Huber's influence on, 84, 85. Quoted, 141. 556 INDEX Story \^continued'\ — Views of, concerning — Bartolus, 67. Domicile, in, 259. Form of transactions, 166. Interpretation, 147. Law of things, 275, 285. Subditi, classes of, 102, log-lio. Subjection to foreign system of law by agreement, 158-161. Substantive law, 151-153, 271. Succession, aliens and law of, 391. Austrian law, references, 26. Bartolus' doctrine of, 65-66. Betrothals affecting, 218. Capacity to act in respect of, 380-381, Coercive laws, so-called, as to, 393-395. Contracts for, 415-418. Doctrines of various countries regard- ing, 372-375- Effect on, of adoption, 263-264. Exclusion from, for heresy, 371. Fraud in (Swiss law), 149. Germanic idea of, 32-33, 374. Gifts affecting rights of, 345. Hague Conferences' labors relative to, 427—429. See Hague Conferences. Husband and wife's rights of, 395-396. Illegitimate children's rights, 271-272. In cases of disappearance, 210-211. Neutral doctrine in law of, 375-377. Peremptory rights of, 396-399. Professio juris in law of, 59, 377-380. Real property in law of, 389-391. Rights of state in, 419-421. Roman idea of, 373-374. Systems of law applicable to, 370. Taking up, 413. Treaties bearing on, 19, 371, 385, 421 ff. Unworthiness considered in discussion of law of, 385-386. Summary procedure (" Summary dili- gence"), 485. Support, duty of. See Aliment. Sureties, obligations of, 322—325. Suretyship, questions of, 322-325, 499. Surville (<■/ Arthuys), cited, 430, 477, 485. Sweden, 16, 18, 22, 28, 103, 122, 234. Switzerland, adoption in, 104. Aliens in, 33-35, 104. Alimentary duties in, 258-259. Betrothals in, 217-218. Capacity to deal with property in, 275 ff. Civil code of, 27-28. Civil Rights, etc., 27. Commercial intercourse controlled by territorial principle, 186-187. Consular jurisdiction of, 36. Consular marriages not recognized, 224. Debtors' capacity to act, 1 78. Divorce in, 234, 236, 239-243. "Domicile" in, 112. Domiciliary law supported by, 39, 116. Double domicile not allowed, 115. Double nationality in, 121. Expatriation in, 121. Fraud against internal law in, 149. Guardianship in, 254—255. Intercantonal law of, 46-47. International Private Law of, 3. Juristic persons' capacity in, 203. Law of marital property in, 231-232. Law of obligations in, 292. Laws of rules of conflict in, 21. Legitimation of children in, 266. Limitation of actions in, 170. Marriage in, 222. Misrepresentation, liability for, 184. National principle in, 122. Naturalization in, 128. Prodigals' status in, 190. Provisions as to good morals and public order (proposed), 157. Reference decision in, 133. Status in, 182-184. Statute Relating to Civil Rights of Per- sons Domiciled and Sojourning (iV. (Sr-^.), 22, 27, 33ff. Statutory problem in, 86. Subjection to foreign law by agreement in, 159. Treaties affecting family law of, 214. See under various topics. Tarring, work by, 38. Taudiere, H., cited, 113, 247. Teichmann, A., cited, 243. Telegraph, transactions by, 327-330, 461- 462, 496. Telegraph law, 12. Telephone, transactions by, 327 ff., 461 ff. Terms, effort for purism in, 433-434. Territorial principle, 39, 61, 76, 84, 86, 93. Argentrceus an advocate of, 71-72. Bartoline rule opposed to, 64-66. Betrothals not subject to, 215. INDEX 5S7 Territorial principle \_continued'\ — Marriage under, 220-222, 224-226. Capacity to act under, 186-187. Status determined under, 184, 185. Testa, Carlos, cited, 295, 513. Testamentary capacity, 399-401. Thaller, cited, 441, 479, 480, 511. Thaumassiere, Thaumas de la, 74. Thibaut, doctrines of, 89. Thol, cited, 4, 90, 355, 430, 477, 483, 503. Tiraqueau, Andreas, dates and works of, 70. Titles of nobility, rights accorded, 208-209. Torts, in commercial law, 475-476. Principles applicable to, 358-365. Rules of, applied to collisions of ships, 522. Special cases of, 365-366. Touze, Charles de, cited, 433. Trade-marks, 12, 433, 469. Protection of, 450-453. Tradeswomen, 438, 488. Transportation contracts, 318, 470-473. Treaties, commercial, 443-445. Duties imposed on officials of probate by, 415. Interpretation of, 146, 147. Law wrongly identified with yj)r»»«, 151. Want of, relative to law of things, 277. Which deal with — Aliens in Mohammedan countries, 37. Commercial law, 433, 435. Family law, 213-214. Foreign merchants, 439. Form of transactions, 167. Land-holding by aliens, 106. Law of obligations, 294. Marriage, 226-227. Protection of firm names, 451. Railroad freight contracts, 294, 471 ff. Succession, 19, 371, 385, 421-429. Treaty, codification of International Pri- vate Law by, 14-19. Convention currency established by, 326. Treaty of Lima. See Lima. Treaty of Montevideo. See Montevideo. Tremel, C. W., cited, 336. Tria axiomata, Huber's, 79. Tribunaux mixtes, in Egypt, 38, 342. Turkey, aliens in, 123. Consular jurisdiction of United States in, 37- Subjects of the Powers in, 36. Twiss, Travers, cited, 141. UUmann, cited, i, 4, 45, Ulpian, on domicile, 114, 115. Unger, cited, 25, 92, 158, 217, 248, 310, 374. 414- Quoted, 261. Unification of laws, international, 1 2. Uniformity of status, 175-176. Unilateral obligations, 331-345. United States, absence of, from Hague conferences, 17, 20-21. Aliens' position in, 105-106. Consular jurisdiction of, regarding Tur- key and China, 37. Domiciliary law in, 39, 11 7-1 19. Dutch School's influence in, 83-84. Forswearing allegiance permitted in, 103. Forum distinguished from jus, 152-153. insane persons' status in, 191-192. Interstate law of, 46, 48-49. Juristic persons' status in, 205-206. Law of, as to — Adoption, 264-265. Alimentary duties, 259-260. Bilateral obligations, 303-304. Capacity to act (status), 184-186. Capacity to deal with property, 275. Claims contrary to good morals, 157. Declarations of death, 212. Divorce, 234, 237-239, 241. Domicile of wife, 113. Form of transactions, 166-167. Fraud against internal law, 150. Guardianship, 254. Legitimation of children, 267-268. Limitation of actions, 171-172. Marital property, 232-233. Marriage, 220-221, 224-226. Nationality and birthplace, 121, 125. Naturalization, 103. Parental authority, 249-250. Prescription, 287. Rights in movables and immovables, 275. 279> 281, 285. Rights of pledge, 288. Set-off to actions, 313-314. Wives' capacity to act, 194-195. Legislation upon International Private Law in, 34-35. Louisiana civil code, 29. Maritime law of, 519-520, 521, 524, Prodigals' status in, 190. Provisions upon rules of conflict lacking in, 21-22. 558 INDEX United States [conlinueii'\ — Status of adults and minors in, l88. Theory in development of International Private Law wanting in, 42-43. Treaty with Switzerland (1850-55), 423. See Tender various topics. Unjust enrichment, obligations arising out of. 357-358- Unwarranted arrest, actions for, 365. Unworthiness, doctrine of, in law of suc- cession, 385-386, 394. Uruguay, 15, 263. Usury, 308, 315, 317. Vangerow, cited, 88, 419. Vareilles-Sommieres, cited, 5, 15, 230-231, 382, 390, 397. Consideration of plan of, relative to In- ternational Private Law, 98. On property rights of married women and wards, 230-231. Territorial law defined by, 137. Variations of terms of similar significance, uselessness of, 433. Venezuela, principle of national law sup- ported by, 122. Venia atatis, 206-208. Vermont, domicile in case of divorce, 118. Vienna, "branch" establishments in, 448. Vindication of movables, limitation of, 284-285. Vis major an excuse for non-protest of bills and notes, 505-506. Voet, B. J., cited, 145. Voet, Joannes, cited, 207, 480. Dates and works, 78. Quoted, 275. Views of, on property rights in movables and immovables, 275. Voet, P., cited, 163, 296. Dates and works, 78. On lex loci contractus applied to obliga- tions, 296. Quoted, 168. Voigt, M., cited, 52, 53, 55, 56, 268, 514. Voluntary agency, obligations arising out of. 357-358. Vows, religious, vs. capacity to succeed, 418-419. Wachter, Oskar, 41, 47, 90-91, 359, 477. Wagner, R., cited, 513, 516. Wahl, cited, 425, 457, 462. Walker, T., cited, 45, 443. Quoted, loi. Want of consideration, plea of, 332. Wards, capacity to act of, 198. Domicile of, 113, 118-119. Leases made for, 352. Property rights of, in France, 230. See Guardianship. Warehouse receipts, regarded as movables, 281. Warehouses for consignment not considered branch establishments, 448. See also Bank transactions. Warranty, liability for, 456-457. Water, carriage by, 473. Water-power, 352. Water rights, 278. Waters, territorial, defined, 522. Wehrgeld, the, 60. Weil, J., cited, 336. Weiss, A., cited, 46, 51, 52, 77, 78, 102, 128, 260, 328, 336, 381, 382, 389, 430, 466, 477, 485, 486. On effect of penal sentences, 177. Wendt, E. E., cited, 336, 513. Wesel, Abraham a, Dutch jurist, 78. Westlake, cited, i, 4, 109, 125, 171, 206, 220, 259, 275, 360, 374, 398, 403. Quoted, no, 184-185, 232, 291. Views of, on — Law of marital property, 232. Personal capacity, 197. Status of natural persons, 197. Wharton, cited, 4, 30, 125, 126, 141, 166, 168, 186, 212, 224, 249, 250, 317, 334, 355. 360, 381, 385. 399. 404. 405. 417, 420, 489. 497- Domicile defined by, 111-112. Quoted, 30, 185, 190, 191, 374,419, 473. Views of, on — Application of foreign law, 139, 141. Limitation of actions, 168-169. Status, 185, 190, 191. Widows, marriage of, 223. Wieland, Carl, cited, 482. Wife, capacity to act of, 192-195. Contracts for succession by, 417-418. Domicile of, 113, 118. Effect of marriage, 223. Gifts between husband and, 344. Marital property relations, 227 ff. Position as regards succession, 395-396. See Aliment. INDEX 559 Wills, acts of acknowledgment and, 331. Capacity to make, 399-401. Fraud in execution of, 148, 150. Holographic, 407, 408, 409. Interpretation of, 403-406. Kingsdown's Act, 405-406, 409, 412. Probating of, 413-415. Restraints on, 402-403. Rule of form in transactions not always applicable to, 165, 166. Treaty conventions in matter of, 19. Witnesses to, cannot inherit, 402. See Testamentary capacity. Windscheid, cited, 25, 92, 322, 328, 4r9, Wine, contracts of sale of, 455. Wisconsin, right of aliens to acquire real property in, 105. Witnesses to wills, 408. Wolf, cited, 49, 133. Wolfl, cited, 447. Women, acceptance of inheritance by married, 413. Nationality non-inheritable through (in England and U.S.), 125. Testamentary capacity of, 401. See Tradeswomen and Wife. Work, contracts for, 353-355. Workshop contracts, 352-353. Wyss, Von, cited, 45, 91, 153, 165. Yamada, treatise by, 30. Yamashita, In re, 126. York and Antwerp maritime rules, 514. Zacharia, 23. Zappa case, 387, 389. Ziegler, Caspar, 83. Zitelmann, ii, 40, 4 J, 45, 46, 96, 98-99, 132, 299, 467. Zurich Code, 141, 149, 159, 271, 280 ff., 40S. THE CITIZEN'S LIBRARY OF ECONOMICS, POLITICS, AND SOCIOLOGY Under the General Editorship of RICHARD T. ELY, Ph.D., LL.D., Director of the School of Economics and Political Science ; Professor of Political Economy at the University of Wisconsin i2mo Half Leather $1.25 net, each MONOPOLIES AND TRUSTS. By Richard T. Ely, Ph.D., LL.D. " It is admirable. It is the soundest contribution on the subject that has appeared." — Professor John R. Commons. "By all odds the best written of Professor Ely's work." — Professor Simon N. Patten, University of Pennsylvania. OUTLINES OF ECONOMICS. By Richard T. Ely, Ph.D., LL.D., author of " Monopolies and Trusts," etc. THE ECONOMICS OF DISTRIBUTION. By John A. Hobson, author of " The Evolution of Modem Capitalism," etc. WORLD POLITICS. By Paul S. Reinsch, Ph.D., LL.B., Assistant Professor of Political Science, University of Wisconsin. ECONOMIC CRISES. By Edward D. 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